(SnrnpU ICam ^ri^nnl ilibtara Digitized by Microsoft® KD 674.H4r'\^y%^''^sny Ubrary Out/inej Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. 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.archi)^|.;grg/,^^^il^y^31924021654003 Digitized by Microsoft® OUTLINES OF EQUITY, BEING A SERIES OF ELEMENTAEY LECTURES ON EQUITY JURISDICTION, DELIVERED AT THE REQUEST OF THE INCORPORATED LAW SOCIETY; SUPPLEMENTARY LECTUEES ON CERTAIN DOCTRINES OF EQUITY, AKD A LECTURE ON THE SUBJECT OF FUSION. FREEMAN OLIVER pAYNES, OF LINCOLN'S INN, BARBISTER-AT-LAWj FORMERLY FELLOW OF-CAIUS COLLEGE, CAMBRIDOE. THIRD EDITION. LONDON : WILLIAM MAXWELL & SON, 29, FLEET STREET, HODGES, FOSTER, & CO., ASD E. PONSONBY, DUBLH; THACKEE, SPINK, 4 CO., CALCUTTA; CHAELES F. MAXWELL, MELBOUENE. 1873. u Digitized by Microsoft® A^jr^'^l LONDON : BKADETJRT, AGNEW, & CO., PRIHTERS, "VVHITErKlARS. Digitized by Microsoft® THE EIGHT HOXOUEABLE JOHN LOED ROMILLY 40. iSic. &o. WHO WHILE INHERITING A NAME ALEEADY ILLUSTEIOUS IN OTJE LEGAL AXNALS HAS HIMSELF ASSOCIATED THAT NAME WITH THE ANCIENT DIGNITY OP MASTER OF THE ROLLS THE FOLLOWING OUTLINES OF EQUITY ORIGINALLY SKETCHED FOE THE INSTRUCTION OF ASPIRANTS TO A PROFESSION OVER WHICH HIS HIGH OFFICE GIVES HIM A SPECIAL SUPERVISION ARE WITH PERMISSION MOST RESPECTFULLY IN30E1BED. Digitized by Microsoft® Digitized by Microsoft® PREFACE. 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 (Bolt's 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 referring "to the recent decisions applicable to the questions discussed. An Elementary Lecture on the subject of " Fusion," Digitized by Microsoft® vi PKEFACE. 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 Queens' College, Cambridge, for assistance in correcting the press, and for useful hints as respects the notes. F. 0. HAYNES. 15, Old BniLDiHos, Lihooln's Iku. January 1, 1873. Digitized by Microsoft® PEEFACE TO THE FIEST EDITION. The following pages are little more than the repro- duction in priat of a Course of Elementary Lectures on Equity, recently deHvered at the request of the Incoi-porated 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, whUe 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 axe 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® Vlll PBEFACE 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. 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 sufEcient merit to Avarrant 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- taiy treatises ; and, so assuming, he has included in this Edition four Lectures (part of a second course) on the equitj' doctrines of " Election," " Satisfaction," and " Conversion." No attempt has been made to alter or re-write any jjortion of the Lectures, 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 PEEFACE 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 mU be found to be Mr. Barber's statement on Equity Practice and Pro- cedxire, 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 Squake, Likoolh's Inn, Fehruary 3, 1865. Digitized by Microsoft® TABLE OF CASES. Abekhbthy v. Hutchihson, 294 Ackroyd v. Smithson, 397 Adams v. Gamble, 240 V. Lloyd, 180 Ainsworth v. Walmsley, 29G Albert, Prince, v. Sti-ange, 295 Allison V. Herring, 259 Angell V. Angell, 190, 192 Anonymous Case, 147 , 182 , 309 Appleton i\ Kowley, 235 Ashby V. Palmer, 415 Astel V. Causton, 276 Attorney-General v. Forbes, 300 V. Bninning, 394 Bacon v. Jones, 287 Baggett V. Menx, 237 Bagsha-w v. Winter, 122 Banks v. Scott, 409 Barnard v. Hunter, 82 Barrack v. McCulloch, 234 Barrow v. Barrow, 336 Barton v. Eock, 171 Barry v. Stevens, 257 Bath, Earl of, v. Sherwin, 198, 199 Bax, Ex parte, 250 Bayley v. Bishop, 413 Baylis v. Legros, 304 Beardmore v. TreadweU, 301 Bennet v. Davis, 220 Benson v. Paull, 305 Berkeley Peerage Case, 184 Besch -v. Frolich, 147 Bilbie ». Lumley, 141 Bindon's, Viscountess, Case, 214 Bird V. Peagrum, 237 Birmingham ■;;. Kirwan, 321 Blandy v. Widmore, 366, 372 Bolden v. Nioholay, 229 Boughton V. Boughton, 328 Bourne v. Bourne, 390 Bousfield V. Lawford, 168 Bowles V. Orr, 257 Bowra v. Wright, 162 Bowyer v. Woodman, 419, 421 Boyse v. Kossborough, 205 Bray v. Finch, 180 Briggs V. Chamberlain, 419 British Empire Shipping Company r. Somes, 183 Brodie v. BaiTV, 331, 333 Brooke v. Brooke, 234 Brown v. Brown, 322 V. Higgs, 90 Browne v. Pocock, 223 V. Wales, 442 Bullpin V. Clai-ke, 227 Burgess v. Burgess, 296 r. Hills, 296 Caldwell v. Vanvlissengen, 290 Came v. Brice, 234 Cavendish v. Geaves, 168 Chichester v. Coventry, 351, 352, 360, 361 Chubb V. Stretch, 25 Churchill v. Dibben, 238 Clark V. Cort, 168 Clarke v. Clayton, 161 V. Franklin, 386, 400 Clinch 4". Financial Corporation, 175 Clinton v. Willes, 230 Cobbett V. Ludlam, 277 Cogan V. Stevens, 398 Cole V. Willard, 363 CoUingwood v. Kow, 391 CoUins Company, v. Brown, 296 Cook V. Hall, 191 Digitized by Microsoft® xu TABLE OF CASES. Cooke V. Dealey, 41 1 Cookson V. Cookson, 430, 432 Cooper V. Cooper, 313 Cory V. Patton, 463 Couch V. Stratton, 372 Cowles V. Gale, 151 Cowper V. Cowper, 26 Crabtree v. Bramble, 430' Crawshay v. Thornton, 296 Croskey v. European, &c., Shipping Company, 264 Crump V. Lambert, 301 Curling v. May, 378 Ciurson v. African Company, 167 Curtis V. Curtis, 154 Oustance v. Bradshaw, 394 Da VIES V. AsHFOKD, 430 V. Thornycroft, 225 Dawson v. Dawson, 349, 362, 363 Dewar r. Maitland, 332 Dillon V. Coppin, 160 V. Parker, 314, 339 Dinwiddle v. Bailey, 262 Dixon V. Enoch, 174 V. Fawcus, 296 Doe V. Louch, 128 Donaldson v. Beckett, 284 Douglas V. Douglas, 339 Downshire, Marquis of, v. Lady Sandys, 303 Dummer v. Pitcher, 324 Duncombe v. Greenacre, 122 Dunkley v. Dunkley, 122 Dunn i: Coates, 182 Dui-ell v. Pritchard, 439 Durham, Lord, v. "Wharton, 349 Dursley v. Fitzhardinge Berkeley, 184 Dyer v. Dyer, 411 Eaden v. Firth, 291 Earlom v. Saunders, 382, 393 Edwards v. Meyrick, 136 Edyall v. Hunston, 276 Blibank, Lady, v. Montolieu, 122 ElUce V. Eoupell (No. 1), 192 (No. 2), 191, 192 Evans v. Louis, 180 Faieihoene v. Westoit, 148 Farina v. Silverlock, 298 Fenton v. Hughes, 174 Fettiplace v. Gorges, 233 Fitzsimons v. Fitzsimons, 327 Flamank, Ex parte, 408 Fleshwardi". Jackson, 214 Fletcher v. Ashburner, 374, 425 Fluker v. Taylor, 261 Foley V. HUl, 258 Forbes v. Steven, 394 Ford V. Batley, 413 Fox V. Fox, 103 - V. Mackreth, 90 Foxwell V. Webster, 196 Frank v. Frank, 338 Franks v. BoUans, 419 Eraser v. Kershaw, 158 Frederick v. Aynseombe, 393 Freeman v. Lomas, 167 Gaffee's Settlement, 223 Gardner r. Marshall, 122 Garrard v. Tuck, 155 Gaunt V. Fynney, 439 Gee V. Pritchard, 293 Gillies V. Longlands, 394, 426 Glascott V. Copper Miners' Com- pany, 175 V. Lang, 279 Goldsmid v. Goldsmid, 372 Gomm V. Parrott, 155 Gore V. Knight, 217, 233 Gorges v. Chancie, 214, 233 Graham v. Londonderry, 214 V. Maxwell, 279 Greatley v. Noble, 230 Greedy v. Lavender, 122 Green v. Fanner, 164 V. Green, 322 Gretton v. Haward, 318, 321, 336 Griffith V. Eicketts, 385 Griggs V. Gibson, 337 Guidot V. Guidot, 378 Gumey v. Gumey, 131 Hall v. Barrows, 295 V. Hall, 148 V. HiU, 359 Harcourt v. Seymour, 429, 432 Harris v. Cotterell, 193, 204 V. Mott, 239 Harrop's Estate, Me, 409 Harvey v. Harvey, 220 Hatch V. Hatch, 136 Hawkes v. Hubback, 223 Digitized by Microsoft® TABLE OF CASES. XIU Hawkins, Ex parte, 40S V. Hawkins, 235 Haynes v. Haynes, 408 Hayward v. Hayward, 60 Heard r. Stamford, 25 Heatley v. Thomas, 2-27 Henderson v. Eason, 156 Henry v. Great Northern Railway Company, 35 HerscMeld «'. Clarke, 179 Herz r. Union Bank of London, 301 Hewett V. Webb, 180 Hewitt V. Wright, 387 Highway v. Banner, 331 Hill V. Turner, 279 Hindson v. Weatherill, 136 Hitcheu v. Birks, 171 Hoare r. Bremridge, 440 V. Osborne, 240 HoUoway r. KadcUffe, 422 Holmes v. Holmes, 349 Honeyman v. Marryat, 93 Homcastle v. Charlesworth, 161 HorreU r. Waldrup, 116 Howard v. Digby, 232 Hudson V. GrrenfeU, 82 Hulme V. Tenant, 227 Humphery v. Richards, 233 Hunt r. Hewitt, 178 Huskissou V. Bridge, 103 Inchbald v. RoBiNsoir, 291, 302 Isenberg r. East India House Estate Company, 301 Ivesou V. Moore, 299 jAOKaoH V. Ogo, 258 Jefferys v. Boosey, 284 Jeasel v. Chaplin, 304 Jessopp V. Watson, 398 Johnson v. Gallagher, 231 V. Telford, 333 V. Wyatt, 301 Jones f. Geddes, 279 V. Gregory, 206 V. Harris, 221 V. Salter, 224 « Jope V. Morshead, 161 Judd r. Pratt, 333 Kemble v. Fakkex, 128 Kemp V. Pryor, 182 Kidger r. Woi-swick, 82 Kincaid, Jie, 125 Kirk T. Eddowes, 359 Kirkman r. Miles, 430 Lafone v. Falkland Islands Company, 85 Lansdowne v. Lansdowne, 143 Law V. London Indisputable Com- pany, 82 Lawes v. Bennett, 391 Leaf V. Coles, 147 Leather Cloth Company v. American Leather Cloth Company, 295 Lechmere v. Brotheridge, 240 V. Earl of Carlisle, 368, 375 — V. Lechmere, 367, 401 Lench v. Leuch, 371 Lister V. Smith, 206 Love i>. -Baker, 279 Lovett V. Lovett, 206 Low V. Routledge, 290 Maobryde V, Weekes, 151 Mackenzie v. Johnston, 256 Macklin v. Richardson, 294 Macnab v. Whitbread, 103 Man V. Ricketts, 94 Man- T. Littlewood, 171 Massey v. Parker, 224, 226 Mathews v. Mathews, 363 Matson ■». Swift, 394 Matthewman, Ee, 229 Mawman r. Tegg, 292 Maxwell v. Maxwell, 333 May V. Roper, 417 Mayberyv. Brooking, 92 Mayhew v. Herrick, 158 McAndrew v. Basset, 295 McCarogher v, Whieldou, 352 McHenry v. Davies, 227, 229 McKewen P.O. v. Rolt, 179 Meinertzhagen v, Walters, 353 Messenger v. Clarke, 234 Metropolitan Board of Works -u. Sant, 291 Mews V. Mews, 234 Micklethwait V. Micklethwait, 303 Milbum V. The London and South Western Railway Company, 277 Millington v. Fox, 296 Digitized by Microsoft® XIV TABLE OF CASES. Mole V. Mansfield, 159 Molony v. Kennedy, 237 Mondel v. Steel, 447 Money v. Jorden, 63 Monopolies, Case of, 282 Montefiore v. Gnedalla, 353 Moore f. Morris, 223 Moss V. Baldock, 89 Moxont). Bright, 267 Murray v. Barlee, 228 V. Elliston, 294 Nayloe v. Weight, 85 Neave v. Avery, 200, 306 Newall V. Wilson, 289 Newcomen v. Hassard, 238 Newlands v. Paynter, 220 Noel V. Noel, 82 O'CONNOE V. Spaight, 263 Oldham v. Hughes, 416 Ormond, Lady, v. Hutchinson, 245 Orrell t. Orrell, 334 Owens V. Dickenson, 228, 230 Oxford, Earl of, v. Sir J. Tyrell, 184 Padbitky v. Claeke, 327 Padwick v. Stanley, 256, 259 Palmer v. Newell, 359 Parker v. Dee, 253 V. Sowerby, 326 Parkin v. Thorold, 152 Parsons v. Baker, 103 Pascoe V. Swan, 157 Peacock v. Monk, 238 Perry v. Turpin, 82 Peters v. Soame, 167 Phillips i). Jones, 148 V. Phillips, 260, 267 Picard v. Hine, 229 Piggot V. Parson, 115 Pinchin v. Simms, 363 Plunkett r. Lewis, 366 PoUey V. Seymour, 378 Pollock V. Lester, 301 Pope V. Curl, 293 Portarlington, Lord, v. Soulby, 279 Pott V. Clegg, 258 Powys V. Mansfield, 345 Pridgeon v. Pridgeon, 216 Proudley v. Fielder, 235 Pulteney v. Darlington, 401- Purdew v. Jackson, 123 Pusey V. Pusey, 150 Pyhus 11. Smith, 221, 222 Pye, Ex parte, 342 Pym V. Lockyer, 355 QUEENSBEKEY, Duke of, u. SHEB- BEAEE, 293 Eanclipfe v. Paekyns, 327 Eanger v. Grreat Western Railway Company, 175 Eavenscroft v. Jones, 349 Keade v. Conquest, 293 V. Lacy, 294 Eeudall v. Kendall, 171 Uex V. Hare and Man, 43 Reynolds v. Grodlee, 399 Eich V. Whitfield, 378 Eichards u. Attorney - General of Jamaica, 406 Roberts ». Berry, 152 Robinson v. Wheelwright, 338 Rooke's Case, 27 Eoskell V. Whitworth, 291, 302 Eumbold v. Eumbold, 331 Eushout t\ Rushout, 338 Ryle V. Haggie, 264 Sanky v. Goulding, 213 Saunders v. Smith, 286 Schroder v. Schroder, 335 Scott ■(/. Corporation of Liverpool, 263 V. Spashett, 122 Scudamore v. Scudamore, 376 Seeleyi'. Jago, 415, 423 Seymour v. TresUian, 214 Sharrod «. London and North- western Railway Company, 9 Shattock V. Shattock, 228, 231 Sheddon ». Goodrich, 329 Shepherd v. Churchill, 162 Shuttleworth v. Greaves, 324 Sisson V. Giles, 419, 427 Slade V. Barlow, 291 Smith V. Claxton, 398 V. Leveaux, 259 V. Attorney-General, 186 Soltau t: De Held, 299, 302 Somerset, Duke of, v. Cookson, 150 Digitized by Microsoft® TABLE OF CASES. XV Southampton Dock Company v. Southampton Ilai'boiu' and Pier Board, 268 South-Eastern Railway Company v. Brogden, 268 V. Martin, 266, 270 Spekei). Wali-ond, 160 Spencer v. London and Birmingham Railway Company, 301 Spencer, Earl, v. Peek, 192 Stead V. Nelson, 238 Stocken v. Stocken, 365 Streatfield v. Streatfield, 338 Stuart V. Kirkwall, 230 Sutton V. South-Eastern Railway Company, 304 Swann v. Fonnereau, 378 Sweetapple v. Bindon, 392 Taff Vale Railway Company 0. XixoN, 264 Taylor v. Meads, 240 V. Plumer, 371 Thomas v. Thomas, 156 Thompson v. Stanhope, 293 V. Rohson, 179 Thompson's Trusts, Re, 394 Thynne, Lady Edward, v. Earl and Countess of Grlengall, 351 Tichbome v. Tichbome, 171 Tinsley v. Lacy, 293 Tolson r. Collins, 365 Townley v. Bedwell, 391 Townshend Peerage Case, 186 Trench v. Harrison, 371 TrcTor v. Blucke, 55 Trimmer v. Bayne, 363 Triquet v. Thornton, 425 Tuer V, Turner, 421 Tugman v. Hopkins, 234 Tullett V. Armstrong, 222, 225 TJotieewood, Re, 390 Unity, &c.. Association v. King, 168 TJsticke "c. Peters, 327 Vaxe v. Lokd Bahnaed, 303 Vaughan v. Buck, 122 V. Fitzgerald, 191 V. Vanderstegen, 232 Veret v. Duprez, 171 Walkee v. Beewstee, 288, 302 V. Kennedy, 85 Wall V. Wall, 337 Walter v. Selfe, 301 Wainwright v. Hardisty, 238 Ward V. Arch, 383 Watkins v. Brent, 171 Watson V. Watson, 349 Weall V. Rice, 359 Welch V. Knott, 296 Wellesley v. Duke of Beaitfort, 131 V. Wellesley, 132 WeUs V. Maxwell, 152 Wharton, Re, 408, 415 Wheeler v. Home, 251 Wheldale v. Partridge, 387 Whistler v. Webster, 314 Whitaker v. Rush, 166 Whittle V. Henning, 123 Whitworth v. Whyddon, 171 Wilcocks V. Wilcocks, 366 Wilcox V. Wilcox, 370 Williams v. Archer, 148 Wintour v. Clifton, 327 Witham v. Waterhouse, 233 Withy V. Cottle, 151 Wodehouse i). Farebrother, 306 Wood V. Sutcliffe, 301 Woodmeston v. Walker, 223, 224 Woodward v. Dowse, 155 WooUey v. Pole, 179 Worthington v. Wiginton, 339 Wright V. Chard, 231 V. Lord Maidstone, 140 V. Rose, 388 r. Tatham, 191, 443 Yelterton v. Newpoet, 115 York, Mayor of, v. Pilkington, 195 Digitized by Microsoft® Digitized by Microsoft® TABULAR ANALYSIS* OP EQUITY JUEISDICTION. EQUITY. Classification of Heads of Jurisdiction (p. 28). .—Exclusive Jurisdiction. II.— Concurrent Jurisdiction. III. — Auxiliary Jurisdiction. I. — Exclusive Jurisdiction (p. 98). In respect of rights wholly ignored by tlie Common Law (p. 100). In respect of persons under disability (p. 129). Protection of Infants. rusts (p. 101). Administration (p. 112). Creditors' Legatees' Suits by Suits Suits parties (p. 112). {p. 114). interested in residue (p. 117)- Property of Mortgages, Married Women Penalties, and Cp. 118^. Forfeitures I (P- 126). 1. Separftte 2. Equity to 3. Kiglit of Estate. Settlement Survivorsliip (Leot. VII.) (p. 121). in Equitable Interests (p. 123). • Thie Tabu refers to like orijinaX series of Lectures only. Digitized by Microsoft® XVin TABULAR ANALYSIS OF EQUITS" JUKISDICTION. II.— Concurrent Jurisdiction (p. 133). General Headt. Where hardly Hemedy at Remedy at Law- Set-ofl any remedy Law less (p. 162). 1. Fraud at Law. inappropriate. appropriate. (p. 184). 1 1 2. Accident 1 1 (p. 138). Partnership 1. Recovery of 1. Account 3. Mistake (p. 145). Specific chattels (Lect. VIH.) (p. 140.) (p. 148). 2. Dower 2. Specific (p. 152). Performance 3. Partition (p. 160). (p. 166). III. —Auxiliary Jurisdiction (p. 169). Strictly Auxiliary, or Ancillary. Auxiliary but also Controlling. Discovery (p. 171). Perpetuation of Testimony (p. 183). Examination. de bene esse. (p. 191). Bills of Peace (p. 194). Bills to Establish WUls (p. 200). Digitized by Microsoft® CONTENTS. LECTURE I. PAGE General nature and extent op Equity Jurisprudence. —Classification of the various heads of Equity. 1 LECTURE II. General History and Constitution of the Courts by which Equity Jceisprudbkce is administered 33 LECTURE III. General Outline of a Suit in Equity ... 65 LECTURE IV. Brief review of the principal heads of Equity Juris- prudence WHERE THE COURTS EXERCISE AN EXCLUSIVE Jurisdiction .... ... 98 LECTURE V. Brief review op the prbtcipal heads op Equity Juris- prudence WHERE the Courts exercise a Concur- rent Jurisdiction 133 LECTURE VI. Brief review op the principal heads of Equity Juris- prudence WHERE the Courts exercise an Auxiliary Jurisdiction .... .... 169 Digitized by Microsoft® XX CONTENTS. LECTURE VII. PAGE The Wife's separate Estate considered as a pae- ticulak head of exclusive jurisdiction . . . 210 LECTURE VIII. Of Account considered as a head of Concukeent Juris- diction . .... 241 LECTURE IX. Of Injunction in cases where the Court exercises as Auxiliary Jurisdiction 272 SUPPLEMENTARY LECTURES ON CERTAIN EQUITY DOCTRINES. On Election . . ..... 309 On Satisfaction . . . 340 On Conversion (1st Lecture) 374 On Conversion (^nd Lecture) ...... 402 Lecture on Fusion .... . . . 434 APPENDICES. 1 Ixxi Ixxii Ixxiv Ixxv Appendix (Mr. Barber's statement). — A. Appilgaeth v. Sergeantson . — B. HoiGGES V. Harry .... — C. Dodd v. Browing — D. Ordinance of 8 Edward I. . — E. Observations on the relative Advan- tages AND Disadvantages of the Pro- cedures at Law and in Equity . id. — F. Form of Assignment of Dower by an Heir . ...... ixxx Digitized by Microsoft® OUTLINES OF EQUITY. LECTUEE I. Gentlemen, — The task which, at the invitation of the Council of the Incorporated Law Society, I have undertaken to perform, is one, the satisfactory and efficient fulfilment of which seems to me by no means easy. The limited extent of time afforded by twelve lectures of one hour each, and the vast range of the subject-matter, render condensation and selection alike necessary and difficult. Where condensation is my aim, I shall doubtless appear, sometimes needlessly elementary to the more advanced students amongst you, and sometimes obscure to those who are beginners merely; and in 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 made be made an (a) The foUowing observations on tte subject of oral teaching have lost their significance now that the voice has assumed the literal form ; but they are retained because it would be diificnlt to expunge them without breaking the thread of the discoui'se ; and possibly the reader may find them not altogether uninteresting. Digitized by Microsoft® ^ ^ LECTURE I. ^ffeient auxiliary in legal training can hardly be doubted, if for no other reason, at least as constituting a separate and distiact 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 fuU re- port of a single case, vdth all its incidents, may fix itself, with the principle involved, indelibly on the memory. So after theoretical study, in all its varie- ties, the perusal of a particular set of papers in practice, and the actual handling of the matter, wiU, for the first at least, impress upon the worker's mind tenfold more strongly than any mere theoretical reading could do, the points of law actually involved and considered. 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 than sound legal knowledge is required. The habit of rejecting Digitized by Microsoft® LECTURE I. 3 rapidly those facts wliich are immaterial, and retaining for further consideration those which are or may be im- portant, is, perhaps, more necessary for the despatch of business than even sound theoretical knowledge itself. In fact, theoretical knowledge must be made the means and not the end, — the handmaid and not the mistress. Many of you will, doubtless, find at first, when you proceed to the active exercise of your duties — and amongst these not a few of the most diligent and of the best read — that the perusal of a set of papers, or the hearing of a particular statement, will immediately suggest various heads of legal difficulty. You will then, perhaps, resort prematurelj^ to your books, sift the law thoroughly, and sitting down again, discover, to your mortification, some trifling fact which renders nugatory (so far at least as respects the matter ui hand) your elaborate legal investigation. I conceive, indeed, that to a young practitioner, fairly read, no better advice could be given on commencing practice than this : — • " Avoid, as a general rule, considering the law of the case untU you have thoroughly mastered the facts." But I am digressing rather. I was attempting to show that, in the acquisition of legal knowledge, novelty of mode formed an important aid. And it is chiefly on this account that I think " lectures " valuable. For, as compared with other means of instruction, it is obvious that they labour under some degree of disadvantage. Socrates, in the " Phsedrus," is represented as inge- niously showing the imperfection of instruction con- veyed by books, as compared with the oral instruction of the ancient philosophers, B 2 Digitized by Microsoft® 4 LECTTJEE 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 preserve a "solemn silence. "Written discourses do the same. You " would fancy, by what they say, that they had some " sense ui 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 teU 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. " Phadr.—^h&t is it ? " Soc. — That which is wiitten scientifically 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 fairness then than now in the days of the printing-press, "Litera scripta manet." The wi-itten discourse remains, and may be referred to from time to time as occasion may reqiure ; whUe the oraUy taught pupil, after he has (a) For a later translation of higli anthority, see Jowett's "Dialogues of Plato," Tol. i. p. 611. Digitized by Microsoft® LECTURE I. 5 retired 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 lecturer can boast neither the advantage of that permanency which belongs to written instruction, nor the power of exposition and explanation so highly prized by the Athenian philosopher. The former advan- tage is denied to him by the very nature of his calling ; the latter, in the case of public lectures at least, by the number of his audience. The question still remains, What can be usefully accomplished by public lectures ? I should answer ; that the first principles of any science 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 g'uasi-popular 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 (6). They will at once perceive how largely I have entered into the labours of those who (a) The Equitable Jurisdiction of the Court of Chancery. (J) Story's Equity Jurisprudence, and Lewin on Trusts. Digitized by Microsoft® 6 LECTUKE I. have gone before me ; but not, I can assure them, without labouring myself. Indeed, it is of the essence of legal study to take 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 capacity for digging and plodding myself, I felt equally sm-e of my power of lecturing after the manner which, so far as I can judge, is alone likely to be useful. Respecting the general plan of my lectures, I am not aware that I can add much to the information afforded by the prospectus already issued (a). In every system of jurisprudence we have, (1.) the system itself; (2.) the functionaries by whom it is administered ; and (3.) the procedure by which they administer it. Without some general information on each of these heads, it would obviously be impossible to pass to the more particular consideration of any one. This explains the selection of the subjects of my first three lectures. The next three are intended to present a somewhat more complete view of equity jurisprudence in general. The rest of the prospectus may be left to speak for itself. Well, then, the subject of my present 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 of the word ? Not, of course, the equity referred to in (a) See "Table of Contents,"' which, as to the first nine Lectures, was copied from the " Prospectus," Digitized by Microsoft® LECTURE I. 7 Sacred Writ, as " equity and every good path." That is not to he hoped for, nor can it he 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, ahuses most grossly the rights conferred on him by the policy of our law, hut 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, hut now destitute, a pittance, of say 15s. a week, would satisfy the positive enactments of the Poor Law, and be amenable to no court of equity. Equity, in the technical sense, is therefore at the utmost but a portion of equity or natural justice in the larger sense. There are many duties, many obligations (imperfect they are commonly called), which no civil- ised country attempts to enforce judicially. Between these and obligations which may be so enforced, there is a line of demarcation varying not very much in different countries. The non-enforceable portion of natural justice forms, therefore, no part of technical equity. The next question is, Does technical equity or equity jurisprudence represent the whole of that portion of equity which may be enforced ? Not so. A large portion of this enforceable part of equity lies within the competency of our courts of law. Equity, 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 enforced, was omitted to be enforced by our common Digitized by Microsoft® 8 LECTURE I. law courts — an omission which was suppHed hy 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. But why, I hear some of you ask, did the common law courts thus fall short in the performance of their judicial duties ? Here, too, the answer is matter of history. According to the common law, every species of civil wrong was supposed to fall within some par- ticular class, and for each class an appropriate writ existed, or was supposed to exist. The writ was (as you know it 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 coiu-t to say whether the case was one deserving redress ; but he had first to determine within what class of wrong his case fell, and then apply for the appropriate writ. The evil effects of this system of procedure were mainly two. First. Even where the facts were such as to bring the case of wrong within some one of the classes Digitized by Microsoft® LECTURE I. 9 already recognised as remediable at common law, the iajured suitor was exposed to the risk of selecting an improper writ, and failing in his action on that account. This, indeed, was a fertile source of injustice in common law proceedings, even within the last few years ; in fact, until the Common Law Procedtu-e Act of 1852, which enacted " that it should not be necessary to men- "tion any form of action in the writ of summons " (a). Thus, before the late Procedure Act, it often happened that a man sued in " debt " when he ought to have sued in " assumpsit," or in " trespass " when he ought to have selected " case." He incurred, perhaps, great expense ; and although proving at the trial facts showing him to be entitled to a common law remedy, yet failed because he had selected the wrong form of action. Take as an illustration the case of Sharrod V. London and North-Western Railway Company (b). There the action was one against a railway company for running over some sheep with a railway engine. The sheep had strayed on to the railway through defect of fences ; and there can be little doubt, though the report does not expressly so state, that the fences were, in fact, fences which the company was bound to keep in repair, and that the owner of the sheep had a sub- stantial right of action against the company. The plaintiff's legal advisers (somewhat carelessly, it would seem to me) brought trespass. It was held, most correctly no doubt if I may say so without presump- tion, that trespass would not lie ; that if the cattle had a right to be on the railway, the remedy was by an (a) 15 & 16 Vict. cap. 76, s. 3. (6) 4 Exchectuer R. 580. Digitized by Microsoft® 10 LECTURE I. action on the case for causing the engine to be driven in such a way as to interfere with that right ; that if the cattle were altogether wrong-dofers, there was no neglect or misconduct for which the company were responsible ; but that if the cattle escaped through defect of fences which the company should have kept up, their damage was consequent on that wrong, and recoverable in an action on the case against the com- pany, for letting their fences be incomplete, or out of repair. In this case there can be hardly any reason- able doubt but that if the plaintiff had been allowed simply to state the facts of his wrong, apart from any technical form of action, and to support that state- ment by evidence, he must have succeeded against the railway company at the outset, instead of being obliged to resort (assuming him to have had the courage to do so) to the costly expedient of a second action. But the injustice thus occasioned by the necessity for selecting a form of writ, even where the wrong was plainly one of common law cognisance, falls strictly within the pale of the common law; and perhaps I have already devoted too much time to the con- sideration of an evil attaching to the old common law procedure, which, after all, is only indirectly connected with the subject of my present lecture, viz.. Equity. 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 Digitized by Microsoft® LECTURE I. 11 law procedure by writs, in the instances of those civU wrongs which 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 lmo^TO. class of remedy. In this case there was an absolute denial of justice. The plaintiff would have equally failed, had he sued in any other form. And frequently a man might abstain from suing altogether, feeling it to be hopeless to select a form of action suitable to his grievance. The heavy fetters of such a procedm-e could not fail to be early felt. The system was, in fact, incapable of expansion, or of adaptation to the growing wants of society. So long ago as the thirteenth year of Edward the First's I'eign, a remedy was attempted. At that time actions at law in fact commenced with an original writ sued out in Chan- cery ; though at a later date the common law courts contrived practically to dispense with the necessity for suing out these original writs. The drawing up of these writs was part of the business of the Clerks (better known afterwards as the Masters) in Chancery. An attempt was made to mitigate the latter of the 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 (a) 13 Edward I. stat. 1, cap. 24. Digitized by Microsoft® 12 LECTUilE I. "remedy is- found none, the clerks of the Chancery " shall agree in making the writ ; or the plaintiffs may "adjourn it until the next Parliament, and let the " cases he written in which they cannot agree, and let " them refer them unto the next Parliament, and hy " agreement of men learned in the law, let a writ he " made, lest it should happen that the court should "long time fail to minister justice unto eom- " plainants." This enactment, though well intended, proved whoUy inadequate. The Clerks in Chancery made little or no use of the new powers conferred. It was hardly to be expected they should. They were ecclesiastics, know- ing little of the common law. There was no encou- ragement to them to make any attempt to frame new writs, since the common law courts were the sole judges of the validity of these writs when framed. And it cannot be doubted that any new writs adequate to newly-occurring emergencies, based as they must have been on the Roman law, would immediately have aroused the jealousy of the common law judges, and have been treated as invalid. The Act, therefore, remained, to a considerable ex- tent, a dead letter ; and, but for some interposition, right and justice must have been stifled by a system of procedure which Sir William Blackstone seems to have thought deserving of eulogium (a). The common law courts thus falling short in the administration of justice, those who suffered wrongs for which the common law afforded no redress applied (o) Bl. Qom. vol. iu. 183, 184. Digitized by Microsoft® LECTTJEE I. 13 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 appljdng 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 any concise general definition. To convey an accurate notion of the nature and extent of equity jurisprudence, requires little less than a statement of the cases in which, and the circumstances under which, the Court of Chancery interposes to mitigate the hardships and inconveniences of the common law. Indeed, on refer- ling to the text books, you will observe wide differ- ences of opinion amongst the most eminent jiurists respecting the principles 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 "Fonblanque on Equity," and the earlier theoretical writers, attributing to the equity jurisdiction far larger and more uncontrolled powers than later writers have been willing or able to recognise. Lord Bacon, for instance, in his " De Augmentis Scientiarum," liber 8, Digitized by Microsoft® 14. LECTUEE I. 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 curia " prffitorite potestatem tarn subveniendi contra rigorem "legis quam supplendi defectum legis." And there can, I think, be no doubt that the early foundations of our equity system were laid by chancellors who as- sumed to themselves and exercised powers fully as large as that ascribed by Lord Bacon. On the other hand, the jurists of more recent times, writing when the edifice had already risen into something Kke shape and proportion, have denied the existence of those larger principles of jurisdiction. Sir William Black- stone observes, — " In the first place it is said, that it " is the business of a court of equity to abate the " rigour of the common law. But no such power is " contended for." And the learned writer proceeds to give various instances of common law hardshij), which the equity courts had not interfered to alleviate (a). These discrepant views represent truly the equity doctrines of two diff'erent epochs. For the first creation of the equity system, principles of jurisdic- tion as extensive as those enunciated by Lord Bacon were absolutely necessary; for the mere development of it, more moderate powers were sufficient. The history of the growth and development of equity jurisdiction is, indeed, by no means, as sometimes supposed, that of a gradual, slow encroachment. On the contrary, turning to the earliest records, we see, at first, the chancellors trying apparently to redress every (a) Bl. Com. ¥ol. iii. 430. Digitized by Microsoft® LECTURE I. 15 grievance of whatever nature, which would otherwise be remediless ; while the labours of the more recent judges consisted, not merely in developing heads of equity alreadj;- founded, but in pruning the luxuriance of the earlier jurisdiction. In illustration of this position, let me turn to the book which I now take up, and which contains the most authentic information we possess respecting the early proceedings in Chancery. It is the first volume, " Calendars in Chancery of Queen Elizabeth," printed by order of the Record Commissioners. Prefixed to the Calendars is contained a selection of bills and petitions, of dates anterior to Queen Elizabeth's reign, accompanied, in the later instances, by the answers, replications, and depositions of the witnesses. The general character of these early proceedings is in the preface to the publication thus described : " Most of " these ancient petitions appear to have been presented " in consequence of assaults and trespasses and a " variety of outrages which were cognisable at common " law, but for which the party complaining was unable " to obtaiQ redress, in consequence of the maintenance " and protection afforded to his adversarj- 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 iato equity has long siace ceased to exist ; and even if any such in fact existed, it would clearly at the present day constitute no ground for equitable interposition. The latitude of jurisdiction assumed by the early Digitized by Microsoft® 16 LECTURE I. chancellors, wiU, however, be best shown by the selec- tion of a few instances from the book before me (a). But, in truth, we find considerable inaccuracy of opinion, respecting the true functions of equity, pre- vailing at a much later date than that of these prece- dents. Thus, the celebrated confidential adviser of Henry the Seventh, Archbishop Morton (b), appears, according to a report in the Year-Books, to have de- nied even the distinction between " technical equity" and " equity in the sense of natural justice." The report of the case, which is noticed by both Mr. Spence and Lord Campbell, is rather curious. It appears that one of two executors, colluding with a debtor to the testator's estate, had released the debtor. The co- executor filed a bill 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 (a) The following cases were then read ; — Istly, p. rx. — " Kymburley v. Goldsmith. A cominou case of action for non-delivery of woad. " 2dly, p. xli. — "Appilgarth, widow, v. Sergeantson. Bill complain- ing that defendant, having obtained a sum of money of plaintiff, giving her to understand he intended to many 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, a 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 bill for protection against a criminal outrage, a species of suit whoUy inadmissible at the present day. (6) Bacon, in his Essay on Counsel, says that Henry the Seventh, in his greatest business, imparted himself to none except Morton and Fox. Digitized by Microsoft® LECTURE I. 17 " that manj' tilings 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," thiis pointing out accm-ately the distinctions between law, equity, and rehgion. But the Chancellor retorts : " Sir, I know that every law is, or ought to " be, accordmg to the law of God " (ignoring thus altogether any distmction 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 Imow 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 laj' down some rather unsoimd law (a). But I would recommend those of xny 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 jMr. Spence's work which treats of the now obsolete jurisdiction of the Court of Chancery (&). I am not aware that the subject has been systematically con- sidered elsewhere. If, then, it be historically true that our present equitj' juiisdiction is only the ultimate result of the development of prmciples varying in different cen- turies, it must obviously be impossible to convey anj' satisfactory view of equity which does not, in sub- (a) Year Book, i Henry VII. fo. 5. (6) Spence's Equitable Jurisdiction, vol. i. p. 684. Digitized by Microsoft® 18 LECTURE I. stance, amount to an enumeration of the particular heads of jurisprudence gradually evolved by the labours of oi-u- successive chancellors. But some fauat general notion of the fmactions and limits of equity may perhaps be conveyed by enuncia- ting, and elucidating by example, a few of the leading maxims or principles of equity. I will select four — three of an enabling, and the fom-th of a restrictive character. 1. No wrong without a remedy. 2. Equity regards the substance or spuit, and not the letter merely. 3. Equity acts " in personam." 4. Equity follows the Law. 1. No wrong without a remedy. This is the chief root of our equity jurisdiction. You have ah-eady seen the over-luxuriance of the earlier shoots wliicli sprang from it. The only limit, indeed, to its creative power, is the barrier interposed between itself and that portion of natm-al justice which, as akeady indicated, falls within the province of morals and religion only. To this, maxim, for instance, we owe om- vast sj'stem of uses and trusts. You are probably aAvare that, pre- viously to the earliest records in the book before me (rt) (the earliest are of the date of Richard the Second), a practice had grown up (under circmnstances which time does not permit me to detail) of the legal owners of lands conveying them to tliii'd parties, who vmdertook to hold them for certain uses. The common law coiu-ts steadfastly refused to recognise in (a) The Calendars of Proceedings, vol. i. Digitized by Microsoft® LECTURE I. 19 any way the engagements entered into by those (feoffees to uses, as they were called) to whom the land had been so conveyed {a) . The chancellors, on the other hand, held that these engagements were binding on the consciences of the feoffees to uses, and that they (the feoffees) were compellable in equity to perform them. Thus was the foundation laid of the great system of trusts, which, bj' itself, constitutes the larger portion of the entii-ety of equity jmisdiction. Tliis was, perhaps, the boldest application of the maxim that the historj^ of our equity jurisprudence (a) This is well illustrated liy tlie general immunity of trustees from criminal liability at common law in respect of breaches of trust, whether fraudulent or quasi-felonious. Until quite recently (1857) an ordinary trustee of (say) 30,00(M. 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 rejiroaclif ully, ' ' Nsiy, you are not only guilty of felony, but of a felonious breach of trust, for you know everything you had was entrusted to your care.'' The story then continues thus ; — Now it hapj)ened, by very great accident, that the Justice, before whom the girl was brought, understood the law. Tuniing, 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 law, unless it be in a servant ; and then the Act of Parliament requires the goods taken to be of the value of foi-ty shillings.'' c 2 Digitized by Microsoft® 20 LECTURE I. tells of; and, as might be expected, it was one of early date. Let me read to you from the volume before me one of the earliest published instances of a resort to equity which falls under this head of jurisdiction (a). 2. Equity regards the spii'it, 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 amoimt lent is offered ; but, being tendered after the appointed time, it comes too late, and is refused. And how is the iiltended victim rescued ? By the merest verbal quibble. Portia saj's : — " Tan-y 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 sphit that I should a report in Meeson and Welsby. Considerable latitude is to be allowed to the di-amatist; (a) The case of Dodd v. Browing, Appendix C, was then read. Digitized by Microsoft® LECTUEE I. 21 but when I see Antonio saved by a species of construc- tion, according to wliich, if a man contracted for leave to cut a slice of melon, lie would be deprived of the benefit of his contract unless he had stipulated, in so many words, for the incidental spilling of the juice, one cannot help recognising in the fiction of the immortal poet an intensified representation of the popular faith, that the laiv regarded the letter and not the sini'it. As to the tender coming too late, that was in strict historical accordance with the law. At common law if a bond was once forfeited by non-payment of prin- cipal and interest on the day stipulated,'Tlie whole penalty must have been paid. In these cases of for- feited bonds, before the reigns of William III. and Anne, when the Legislatui-e interfered to regulate the proceeduags at common law («), the only remedy for an ■obligor who had allowed the time for payment to elapse, was to file a bill in equity offering paj'nient 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 Poi-tia to have given, would have been, to file a bill in Chancery. But it must be ad- mitted that the play would not have been improved. The gi-omid upon which the interference of the equity •courts is now rested in these cases of forfeited bonds, is the maxim above referred to— that equity regards the spirit, not the letter ; that in substance the bond was intended as a security merely; that the precise day of payment was immaterial. •(a) See 8 & 9 Will. III. cap. 11, s. 8 ; 4 & 5 Anne, cap. 16, ss. 12, 13. Digitized by Microsoft® 22 LECTUEE I. To the same maxim also is to be referred the equity jurisdiction in allowing the redemption of mortgaged lands after the day stipulated by the contract. You are aware, doubtless, that in the ordinary form of mort- gage the borrower conveys his property absolutely to the lender, subject to a stipulation that, upon payment of the money borrowed and interest, on a 'particular day, the property shall be 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 verj' day, the estate was lost to the mortgagor. The Comi of Chan- cery, on the other hand, looking to the spirit of the transaction, held that the land was, in substance, a pledge merely, and that time was not of the essence of the bargam ; and that, therefore, the mortgagor should be allowed to come after the time fixed and pay the prin- cipal and interest then due, and obtain back his estate. While, however, we value to its full extent the maxim that the spirit and not the letter is to be regarded, it must be confessed that the heads of equity which are attributed to the application of this maxim are those which it is the least easy logically to justify. The ordinary money bond, for example, must, in its earliest use, have been meant to represent the true contract be- tween the parties, and, if deliberately entered into, no valid ground for interference seems to exist. In fact, to justifj' the equity jui-isdiction, we must Digitized by Microsoft® LECTURE I. 23 suppose tlie existence of an epoch intermediate between the &st use of the bonds and the exercise of the juris- diction, and during wliich these money bonds (which originallj' truly represented the contract between the pai'ties) came to be used merelj' as a convenient form of security; and I am not aware that legal history warrants such a supposition. It is, indeed, extremely probable that a jurisdiction now justified upon the princif)le of the above maxim, derived its growth originally from the interposition of the com"t in cases where accident in allowing the day of paj-ment to pass bj% or some other circumstance of hard- ship, induced the equity judge to mitigate the literal rigour of the contract (a) . 3. Equity acts " in personam." This is an im- portant peculiarity. The remedy to which, in cases of breach of contract, the common law actions all tended was " pecuniary compensation." The aim of the equity coiu'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 mitil he did what was ordered. Hence arose the salutary equity jurisdiction in respect of m-ongs which do not admit of pecuniary compen- sation. A man agi-eed to sell a field possessing special attractions for the purchaser, and subsequently refused to convey it. The Comi of Equity decreed him to fulfil his contract — to perform it specifically, as we say — and justice was satisfied. (a) See Spence's Equitable Jurisd. vol. i. p. 623 — 630. Digitized by Microsoft® 24 LECTURE I. 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 effect of the decisions of other tribunals. Thus, a man, in assertion of his legal right, sued in the Common Law Court. His opponent came to the Court of Equity, and said, "Although the strict " legal right is on the other side, there are equitable " circumstances in this case which ought to deprive " my assailant of the right of suing me." And the Equity Com-t, if it agreed m this view, simply ordered the plaintiff at law not to sue, and put him in prison if he persisted. Hence, again, the equity jurisdiction, even where the property in dispute was situate out of England, as in Ireland, Scotland, or the colonies. Hence, too, para- doxical as it may seem, the virtual trusteeshij) which the Com't acquires over the verj' property of parties litigant; the Court saying to the executor, or other person bound to distribute the property, — " You ought " to distribute according to the true equitable rights, " and we icill order you to do so. JMeanwhile, until " the rights are ascertained, yow. shall pay the money " into the bank for safe keeping." 4. To xoass to the last maxim mentioned, " Equity follows the Law." This, as intimated, is restrictive in its operation. It is the maxim chiefly referred to for the purpose of keeping the equity jurisdiction within moderate bounds. It may be said to have a double meaning and operation. Thus, first, " Equity follows Digitized by Microsoft® LECTURE I. ' 25 the law," in the sense of obeying it — conforming to its general rules and policy, -whether contained in the common or in the statute lav. Perhaps one of the hest instances of the application of the maxim in this first sense is afforded by the decision of Lord Talbot, in the case of Heard v. Staiitfonl (a). You are aware that, if a man marrj^ a woman who is indebted, he thereby makes himself liable at law for all her debts. He may be sued immediately after marriage (&). But this liability 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 (a) Cases Temp. Talbot, 173. (6) As to women married after August 9th, 1S70, the law is altered by the Married Women's Property Act (33 & 34 Vict. c. 93), the 12th section of which enacts as follo^\s : — "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 iise shall be liable to satisfy, such debts as if she had continued ' ' unmarried. " This section agrees in principle with the decision, antecedent to the Act, of V. C. Malins (Chubb i: Stretcli, L. K. 9 Eq. 655), that Avhere the creditor's right of action for the wife's debt is destroyed by the husband's bankruptcy, property settled Ijy the wife on her maixiage to her separate use is liable. It may be doubted, however, whether the interests of creditors have received sufficient consideration by the framerp of the Act ; for the Act, while containing provisions making certan after-acquired property of a married woman her sejiarate estate, leaves the rights of the husband in respect of the wife's property at the time of marriage un- touched, so that it would seem that upon a husband marrying (without settlement) 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. Digitized by Microsoft® 26 • mcTUEE I. received her fortune, was liable, in equity (though not at law), to pay her debts contracted before coverture. But the Lord Chancellor held otherwise, saj-mg, " There " are instances, indeed, inwliich a court of equitj- 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 particular " rules, it woiild 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 bj' which at common law legal estates and in- terests of a similar kind are governed. Thus, equity having first, by the exercise of its creative power, called into existence the sj'stem of equitable estates, subse- quentlj', acting upon the principle expressed bj' the above mfixim, determined that these estates should partake, as nearl}' as possible, of the qualitj' of the corresponding legal estates. Thus a use in fee de- scended according to the same rule, the husband was entitled to curtesy under the same circmnstances, and so on, as in the case of the legal fee. There was an anomaly in respect of dower, which I do not now enter upon. You will find a most able exposition of the force of the maxim (in the sense which I am now alluding to) in the celebrated judgment of Sir Joseph Jekyll, in Coivper V. Coicpcr («), in which case he decided (most reluctantly) that an equitable interest in fee, which («) 2 Peere 'Winiams, 720. The particular passage extracted mil be found at p. 753. Digitized by Microsoft® LECTURE I. 27 had vested m the infant son by the first marriage of Lord Chancellor Cowper, shoiild descend to his cousin of the whole-blood, instead of to his brother of the half-blood, the Chancellor's infant son by a second mai-riage (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 " estates ; otherwise great uncertainty and confusion " wordd ensue ; and though proceedings in equitj- are " said to be secundum discretionciii honl viri (b), yet " when it is asked, i-'ty bonus est qiils ? the answer is, "qui consuha iMtrum qui leges juraqve servat ; and " as it is said in Rooke's case, 5 Rep. 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 " rales of law and equity, which are not to oppose, but " each, in its turn, to be subservient to the other; this " discretion, in some caseSj follows the law implicitly; "in others, assists it, and advances the remedy; in " others agaui, it relieves against the abuse, or aUays "thei-igour 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) For the modern alteration in the law respecting descent to the half- blood, see 3 & 4 W. lY. cap. 106, s. 9. (S) See Bacon, "De Augmentis," lib. viii. aph. 32, where, speaking of the curise prostoriie, he says, " Qnffi statnuntex arbitrio boni viri." Digitized by Microsoft® 28 LECTURE I. " a judicial capacity, is by the constitution entrusted " with." Having now pointed out to you what I consider to have been the origiu of our equity jurisprudence — having shown, as I conceive, the impossibility of defining adequately its natiu'e and extent by any general state- ment and description, or indeed in anj'- other way than by a catalogue of the various heads of equity — shaving 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 hj 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 rehef afforded, or of the functions performed by the court. The titles in Mr. Smith's book are " Remedial Equitj^," "Executive Equitj^" " Adjustive Equitj^" " 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 Digitized by Microsoft® LECTURE I. 29 Exclusive, Concurrent, and Auxiliary; i.e. under the first title are to be ranged all those heads in respect of \vhich the courts of equit}' have exclusive jurisdiction; under the second, those in which their jurisdiction is concurrent with that of the common law courts; under the thu'd, those in which courts of equity, actmg in aid merely of the common law courts, supply some addi- tional remedy which the latter are inadequate to afford. This arrangement, though incomplete m 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 equitj' was probably more perfect, more convenient. Within the third ?— then the partial help of equity, supplyiag 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 aff'orded 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- ceeduig at law or in equity; and the ordinary classifi- cation tends to call the attention forcibly to these maiQ points. For my own part, without wishing to underrate the importance of a scientific analysis of the heads of equity, in reference to the character of relief afforded, I would strongly advise you to adopt Digitized by Microsoft® 30 LECTURE I. the usual arrangement in the acquisition of equity knowledge. Before partmg with this subject, let me allude to a classification, not of heads of equity jurisprudence, but of the general business of the Court of Chancery which it is of extreme importance that you should, as men of business, appreciate thoroughly. The popular notion of the Court of Chancery is, that it is purely concerned with litigation. Nothing can be farther from the fact. A large, perhaps the larger, portion of the business of the Court is purely administrative, the residue only litigious. Thus, an intestate dies, a bill is filed, his property is realised, his creditors are paid, and the residue is distributed under the direction of the Court. In such a case, in the absence of anj- dispute resj)ect- 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 frequentlj- litigious to some very trifling extent onlj-. It is much to be regretted, that, amidst the general outcrj' and obloquj' to wliich the Court of Chancery has been exposed, this distinction should have been so- frequently overlooked, and in some cases, I fear, wilfully put out of sight. Chancery suits for the administration of property bequeathed b}'^ a testator to some half-dozen cliildren for their lives, and after their respective deaths to their children at twenty-one, have been represented as owmg theii- vitalit}', not to the happj^ health of the tenants for life, whose property lias been well Digitized by Microsoft® LECTURE I. 31 talien care of, but to tlie cai-eless indolence or perverse ingenuity of judge, counsel, solicitors, and officers of the Court. AVlien some educated people are found imbibing from the works of fiction of a well-known talented author the notion that Cliancerj- martyrs still exist, and that Chancerj' 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 Com-t, 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 aecompHsh when I drew up my prospectus. I had thought then to have embodied in it a connected historical sketch of the difi'erent heads of equity. It, however, soon became evident to me that to do this well would have required far more tune than I could command. I regret it extreme^. The importance of studying the jmisprudence of equity historically, has, I think, hardlj^ been apjjreciated. I spoke at the outset of the advan- tage of varying j'our modes of learning ; let me recom- mend, as a mode of acquiring a knowledge of equity, one which I believe you will find both interesting and profitable. Take Lord Campbell's "Lives of the Chan- cellors." Begin (saj') with the life of Lord Nottingham. Eead first the life of a chancellor, and then turn to the reports of his more important decisions. Lord Digitized by Microsoft® 32 LECTURE I. CamiDbell'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 combination of historj', biography, and equity impart a new zest to your studies. Digitized by Microsoft® LECTURE II. The subject of my present lecture is the general history and constitution of the courts by which equity jurisprudence is administered. At the outset, let me observe that I do not propose treating of courts of equity no longer in existence, s,uch as that of the Equity Exchequer, abolished some fifteen years siace (a) : nor of courts which, practically if not theoretically, exercise only a limited jurisdiction, such as the Chancery Court of the County Palatine of Lan- caster (b). With the exception of a few observations respecting the equitj' appellate jurisdiction of the House of Lords, I shall confine my consideration exclusiTcly to those branches of the High Court of Chancerj'-, whose local habitation may be said to lie within a few yards of the spot where we now stand (c). The staff of high dignitaries administeiing equity justice consists, of the Lord Chancellor, two Lords (a) As from Oct. 15, 1841. See 5 Yict. cap. 5. (5) The practice of the Lancaster Chancery Court is regulated by the 13 & 14 Vict. cap. 43, and 17 & 18 Vict. cap. 82, and in common with the High Court of Chancery by the 21 & 22 Vict. cap. 27, and the 25 & 26 Vict. cap. 42. (c) The lectures were delivered in the buildings of the Incorporated Law Society, at Chancery Lane. D Digitized by Microsoft® 3i LECTUEE II. Justices, the Master of the Eolls, and the three Vice- Chancellors, seven in all. I place the Lords Justices before the Master of the EoUs, as occupying in judicial importance a higher position ; though I may observe, by the vay, that, as respects legal precedence, the Master of the Rolls ranks before the Chief Justice of the Common Pleas and Chief Baron of the Exchequer, both of whom precede in order of legal dignity the Lords Justices of the Court of Chancerj^ Of these seven judicial dignitaries, five fiU offices vrhich are of comparatively recent creation ; and it vpill, I think, be more convenient to state shortly the origin of the more modern amongst them, before proceeding to the con- sideration of the ancient. Let us, then, direct our attention to the Lords Justices first, as being the most recently created high equity functionaries. Their dignity is indeed of the most modern date. I need only carry you to the year 1850. In the summer of that year. Lord Cottenham had resigned the Great Seal from illness. His successor. Lord Truro, a common lawyer, was but imperfectly acquainted with the practice of the Court ; and this, combined with an almost over-painstaking disposition, led to an extreme slowness in disposing of the appeals before him. In fact, the Appellate Coiu't required strengthening. The result was, the Act of the 14th and 15th Vict., cap. 83 (a). * * * * (a) The following sections were read or referred to : — § 1. Power to appoint two judges of the Court of Appeal. § 5. Court of Apiieal to have all the jurisdiction at time of Act exercised by the Lord Chancellor. Digitized by Microsoft® LECTURE II. 35 The 12th section of the Act seems to contemplate the making of some general regulations by the Chan- cellor with respect to the sittings and business of the Court of Appeal. No general regulations have, how- ever, been issued. The practice as to sitting may be thus stated. Whenever the state of the appellate business and the Lord Chancellor's other avocations so permit, or whenever a case of imusual importance occurs (such as that relating to the rights of the pre- ference shareholders of the Great Northern Railway (a), which is to be proceeded with to-morrow before the full com't), the three judges sit together. In the absence of the Lord Chancellor, the Lords Justices sit alone. When the state of the appellate business makes a severance desirable, the Lord Chancellor and Lords Justices sit as separate courts. This is more frequently the case than not, and in fact is so at the present time. To- morrow, after the Great Northern Railway case shall have been disposed of by the full Com-t, the Lord Chancellor and Lords Justices will sit separately (&). § 9. Decision of tke majority to be the decision of the Court, and if the judges equally divided, order under appeal to be deemed aiErmed. § 11. One judge with Lord Chancellor, or two judges together, or Lord Chancellor alone, to form court. By the joint effect of the 30 & 31 Vict. cap. 64, and 31 "Vict. cap. 11, a single judge may now exercise all the jurisdiction of the Court of Appeal except that decrees made at the hearing of a cause or on motion for decree or on further consideration cannot be reheard by a judge sitting separately, (a) Henry v. Great Northern Railway Company, now reported 1 De Gex & Jones, 606. (6) The practice as to sitting has varied considerably, according to the views and inclination of the holder of the Great Seal for the time being. During the greater part, if not the whole, of Lord Westbuiy's Chancellor- ship, there were no sittings of the full court. "n 2 Digitized by Microsoft® 36 LECTUEE II. That this Act has, on the whole, proved a benefit to the suitors cannot, I think, be doubted. That it is not altogether satisfactory in its actual working, is, in my judgment, equally clear. The uncertainty, whether if an appeal be presented, it will be heard by the three judges, or by the two justices, or by the Lord Chancellor alone, creates often serious dijBBculty in determining whether an appeal should be pre- sented or not. Occasionally, when little doubt is felt that a decision below could not stand if reviewed in presence of three judges, the reconsideration of it by a single mind affords a comparatively slender hope of success. Six years of retrospect (a), then, gentlemen, are suffi- cient to bring us to a time when the Lords Justices formed no part of the staff of equity judges. There would remain, however, as representing the judicial coi-ps, the Lord Chancellor, the Master of the EoUs, and three Vice-Chancellors ; the first acting as appel- late judge in respect of the judgments of the four last. Travel back with me to the year 1841, and you wiU have reached the modern cradle of the two last created vice-chancellorships (&). Go back again some thirty j'ears more, to the year 1813, and you will arrive at the origin of our first vice-chancellorship (c). The appointment of a Vice-Chancellor, in 1813, was a remedy tardily applied to mitigate the evils caused partly by the arrears of business of the Court of Chan- cery, but more particularly by the arrears in the appeals to the House of Lords. Lord Castlereagh, in (a) i.e. from 1857. (b) 5th Vict. cap. 5. (c) 53d Geo. III. cap. 24. Digitized by Microsoft® LECTURE II. 37 moving in the House of Commons the second reading of the bill for the establishment of the vice-chancellor- ship, stated, that the arrear of appeals then pending before the House of Lords amounted in number to 280 ; and that, according to the average rate at which the causes had been decided, they could not be determined in less than eleven years (a). It was desired, therefore, to appoint a Vice- Chancellor, iu order that the Chan- cellor might devote more time to the House of Lords' appeals ; and this was done. The two new vice-chanceUorships of 1841 were part of a general scheme for the abolition of the Equity Exchequer jurisdiction. Previously to that time, bills used to be filed in the Exchequer Court, and equity causes determined there, imder a system of pleading and practice differing very little from that of the Court of Chancery. A single judge of the Exchequer sate in equity. The jurisdiction was practically subject to two evils — First, the equity judge had to go cii'cuit early in July, and the Court was, therefore, closed from Jiily to November ; and secondly, the only ap- peal, even from interlocutory orders, was to the House of Lords. For these reasons it was thought expedient to abolish the Equity Exchequer jurisdiction, and at the same time two new vice-chancellors were created. Such is the general outline of the origin of the three vice-chanceUorships ; but there is some little complication in the Acts under which the three pre- sent vice-chancellors sit. (o) Hansard's Parliamentary Debates, vol. xxiv. p. 459. Digitized by Microsoft® 38 LECTURE 11. The Act of 1813, the 53d George III. cap. 24, created a new judge with the title of Vice-Chancellor of England, and a salary of 6,000Z. per annum, ranking immediately after the Master of the Eolls. The Act of 1841 created two new vice-chancellors with salaries only of 5,000Z., and ranking only after the Chief Baron of the Exchequer ; and the same Act made provisions for placing the then future successors of the then Vice-ChanceUor of England on the same footiug, as regards salary and precedence, as the two new judges. It was, however, supposed, at the time of the Act of 1841, that the services of one only of the two new vice- chancellors would he required permanently; and the Act, therefore, provided that no successor should be appointed to the vice-chancellor secondly appointed under that Act. As it happened, the first vacancy in the vice-chanceUorship of 1841 was that caused by the lamented infirmity of Vice-Chancellor Wigram, who was in fact the secondly appointed vice-chancellor; and on his resignation, therefore, no new judge could be appointed, although the state of busiaess called for the services of one. A special Act became therefore necessary to provide for the continuance of the vice- chancellor ship. This Act, again (14th and 15th Vict. cap. 4), only provided for the appointment of a single successor to Vice-Chancellor Wigram ; and the third vice-chancellorship {i.e. the second under the Act of 1841) was made permanent only in the year 1852, as part of the general scheme for the abolition of the Master's offices (a). We have now, as you perceive, (a) 15 & 16 Yiot. cap. 80, s. 52. Digitized by Microsoft® LECTURE II. 39 after travelling backwards less than sixty years, elimi- nated five of the seven high equity functionaries. The Lord Chancellor and the Master of the RoUs alone reniaiu. Theii- dignity and office cannot be so summarily disposed of; and at this point perhaps it may be convenient to trace the origin and growth of theii' jurisdiction as equity judges. Such of you as may have found time since my last lecture to refer to the chapters of Mr. Spence's work, or of Sii' W. Blackstone's commentaries, then recom- mended for your perusal (a), will have learnt that, under the Saxon monarchs, and immediately after the Norman Conquest, the whole business of the country, political, administrative, and judicial, was concentrated m the great or general council. Such a mode of government was obviously consistent only with an extremely rude state of society. With an advancing civilization, a division of labour was inevitable. The first step in this direction was that by which a minor or executive council was formed out of the great or general council. The history of the creation of the minor or executive council may be thus stated : — The general council met only at fixed times ; I think three times a year only. A permanent council, which should be at hand to advise the Crown when the great council was not sitting, was therefore needed. Now, amongst the component elements of the great council as continued under the Norman Conquest, were most (a) Spence's Eq. Jvirisd. vol. i. Part II. Book I. chapters ii. and T. ; Bl. Com. vol. iii. ch. iv. Hints for preparation for the next lecture were occasionally given at the end of the preceding one. Digitized by Microsoft® 40 LECTURE II. of the high officers of the reahn ; such as the Lord Chancellor, the Lord High Steward, &c. These high officers were, in fact, ex-officio members of the great council ; just as by many, if not most, of the modern constitutions of foreign countries of the present day, the Crown ministers sit and vote, as of right, in the legislative assembKes which are otherwise elective. The permanent council which was needed was created by forming into a smaller council the high officials whom I have just referred to, and joining with them the greater barons. By this means the executive and judicial functions were severed from the great council, leaving the legislative, so far as in those early times the great coimcil can be said to have had any legisla- tive functions, with the latter. The next step was the severance of the judicial functions from the executive. The minor council was attendant on and followed the monarch's person ; and one of the grievances complained of in the time of King John was, that the necessity of travelling whither- soever the Crown might be resident to obtain the deci- sion of causes, led to expense and trouble. Accordingly, we find a special article in Magna Charta : — " Ut com- " munia placita non sequantur curiam domiui regis " sed assignentur in aliquo certo loco ; " and by virtue of this article the Court of Common Pleas was estab- lished at Westminster. The Courts of Queen's Bench and Exchequer, and indeed the Court of Chancery itself, were similarly offshoots from the aula regis, or lesser council, which ultimately retained little more than the functions of the privy council. Digitized by Microsoft® LECTURE II. 41 The foregoing may be accepted as a general outline of the history of the severance and distribution of the legislative, administrative, and judicial functions of the monarch and his great council. But, as might be supposed, the severance was only gradually effected. Thus it appears, that, so late as the reign of Edward I., the practice of presenting petitions to the king in Parhament, concerning matters which ought to have been dealt with by some one of the severed branches of jurisdiction, prevailed to an extent suf&cient to interfere with the ordinary business of the great council of Parliament. This is made clear by an ordinance of the eighth year of that monarch, which runs in substance thus : — " Because the people coming to the king's parlia- " ment are often delayed and disturbed by the number " of petitions brought before the king, the greater " number of which could be disposed of by the chan- " ceUor and the justices, it is provided, that all peti- " tions touching the Seal do come first before the " chancellor, and those touching the Exchequer, &c., " do come, &c., and those touching, &c. &c. &c. And " if the demands be so great, and so much of grace, " that the chancellor and these others cannot do with- " out the king, then they shall bring them before the " king with their own hands to know his will [a)." In the reign of Eichard II., the proper limits of the jurisdiction of Parliament would appear to have become somewhat better understood, at least by Par- (o) See the ordinance, as copied from Ryley's Pleadings in Parlia- ment, 442, given in Appendix D. Digitized by Microsoft® 42 LECTURE II. liament itself. Thus, in the thirteenth Eichard II. we find a petition amounting in substance to a bill for the redemption of a mortgage, and the answer is : " Que la dite petition n'estoit pas petition du Parle- " ment, einz que la matire en ycelle compris deust " estre discus par la Comune Ley (a)." And in the fifteenth year of the same reign, on a petition by the Abbot aud Convent of Abingdon, complaining of an improper seizure by the king's escheator, the answer is, in substance, " Let the matter be referred into " Chancery (fe)." Not that the Parliament Rolls of later date do not contain instances of occasional departure from true principle. Thus, in the fifth year of Henry V. we find William De Clynton presenting a petition, com- plaining that he had enfeoffed "William de la Pole and others of all his land in England and Calais, and that William de la Pole, sole survivor, refused to deal with the lands according to his direction. And we find rehef actually given by the Parliament, and De la Pole ordered to enfeoff new persons named by De Clynton, and the feoffment itself recorded on the Parhament EoUs (c). But it is time that we should attempt to trace more particularly the causes which led to the jurisdiction in equity becoming vested in the Lord Chancellor, rather than in any other portion of the judicial system. In my first lecture, though explaining generally the causes and origin of equity jurisprudence itself, I rather (a) Eotxai Pari. vol. iii. pp. 258, 259. (&) Ibid. p. 297. (c) Kotuli Pari. vol. iv. p. 151. Digitized by Microsoft® LECTURE n. 43 took for gTanted than explained the fact of the Chan- cellor becoming the judge by whom Equity should be administered. One mode in which the acquisition by the Chan- cellor of the equity jurisdiction has been accounted for, is that suggested bj'' Lord Hardwicke, when Mr. Yorke, in his celebrated argument in Eex v. Hare d Man (a). The argument arose out of a question, whether a writ of scire facias, directing the defendant to appear " coram nobis in canceUaria nostr^, &c. &c. " ubicumque tunc fuerit," were good, or whether the words " in Anglia " ought to have been added. In this case Lord Hardwicke, entering learnedly into the origia of the jurisdiction of the Court of Chancery, says as follows : — " The jurisdiction of this court, as it is a court of " equity, is perhaps of all others the most difficult to " be traced, both as to its foundation and the time " when it bad its original. But I think there have " been very great opinions, and I am apt to believe " a strict search into antiquity might enable one to " show, that this jurisdiction also has taken its rise " from the Great Seal. For the Chancery being, " upon the division of the king's courts, naturally the " officina justiticB from which all original writs issued, " and where the subject was to come for remedy in all " cases, the chancellor was applied to in all cases for " proper writs, where the subject wanted a remedy for " his right, or redress for a wrong that had been done " him. But in the execution of this authority, he was (a) 1 Strange, 150. Digitized by Microsoft® 44 LECTURE 11. confined by the rules of the common law, and could award no writs but such as the common law wax- ranted : therefore, when such a case came before him, as was matter of trust, fraud, or accident (which are the subjects of an equity jurisdiction), the chancellor could award no writ proper for the plaintiffs case, because the common law afforded no remedy. Upon this it is not improbable that the chancellors, who were most commonly churchmen, men of conscience, when they found those cases grew numerous, in order to prevent the suitors from being ruined agaiast right and conscience, and that no man might go away from the king's court without some relief, summoned the parties before them, and partly by their authority, and partly by their admo- nitions, laid it upon the conscience of the wrong-doer to do right." Lord Hardwicke's suggestion is ingenious, and it has received the countenance of no less a person than Sir James Mackintosh {a) ; but, to the best of my judgment, it is not supported by the known facts. In the first place, the officers specially entrusted with the framing of the writs which issued out of Chancery, were the clerks or masters in Chancery, who are specially mentioned in the Act of Edward I. (b) ; and there is no ground for assuming that the chan- cellor exercised any personal supervision ia the matter. In the next place, a hypothesis, which assigns to the chancellor the part of taking the (a) Life of Sir Tliotnaa More, Misc. Works, vol. i. 453. (J) See p. 11, supra. Digitized by Microsoft® LECTURE II. 45 initiative, is quite inconsistent with the forms of the old petitions. If one might venture to offer another hypothesis, coimecting the chancellor's equitable jurisdiction with his position as head of the great " qfficina justitia," it would he that the clerks in Chancery, upon being apphed to for writs, informed the suitors that they knew of none applicable, and suggested a petition to the chancellor for redress. This, however, is conjec- ture merely. But even assuming that the equity jurisdiction ac- quired by the chancellor was partly due to his position as chief officer of the court from which all writs issued, his acquisition of jurisdiction as an equity judge seems maialy traceable to facts which are historically upon record. The chancellor was, as you know, the confidential adviser of the monarch in all important matters (the keeper of the king's conscience, he was called), and pre- eminently the fittest person to take into consideration petitions of the subject praying for the special exercise of the monarch's grace. Petitions of this class were (as appears from the ordiuance of Edward I., which I read to you) frequently addressed to the king in parhament, and were, according to the words of the ordinance, to he brought before the king himself. Other petitions of a similar kind were, doubtless, presented to the Idng in coimcil, or to the monarch himself (a). These matters (a) There is an instance at p. xvi. of the collection of early bills pre- fixed to the first volume of the Calendars in Chancery, of a petition to the monarch himself. It is of so late a date as Henry V. , and appears to have been referred by him to the Chancellor. Digitized by Microsoft® 46 LECTURE II. of grace were, during the reigns of the first two Edwards, frequently, though not invariably, referred to the chancellor. The first distinct recognition of the chancellor as the proper person to deal with matters of this class, is in the 22d year of Edward III. In that year we find a writ addressed to the sheriffs of London by the king in something like the following words : — " Being daily occupied in various matters concerning " ourselves and the estate of our kingdom of England, "we will that those having in future matters to pro- " secute before us, concerning either the common law " or our special grace, do prosecute the same affairs as " follows; that is to say, matters relating to the common "law before the Venerable Elect of Canterbury, our " Chancellor, to be despatched by himself, and other "matters to be granted as of grace, before the same " Chancellor, or our beloved Clerk Keeper of the Privy " Seal, &c. (a)." The matters relating to the common law here men- tioned are those heads of common law jurisdiction belonging to the chancellor, which formerly were of considerable importance, and which are detailed in the chapter of Blackstone recommended for your perusal at the end of my first lecture (&). The matters of grace (a) Translated at 1 Story Equity Jurisprudence, § 44, note ; and also in "Legal Judicature in Chancery Stated," where also the original is given in Latin. But the more accurate version of the writ is doubtless that at p. xrviii. of the Introduction to the Kot. Lit. Glaus. , published by the Becord Commission. (5) Bl. Com. vol. iii. 48. See 12 & 13 Vict. cap. 109, regulating the practice of the common law side of the Court of Chancery. Digitized by Microsoft® LECTURE II. 47 are obviously those specially calling for equitable inter- ference of the Crown. We cannot, then, be surprised that, after the chan- cellor had been thus distinctly pointed out by the Crown as the proper person to deal with these matters of grace, the practice should have grown up amongst the suitors of applying to tbe chancellor directly by petition, instead of iudirectly through the king in council. Accordingly, as appears from the collection of bnis or petitions to which I referred in my last lecture (a), petitions directed'to the chancellor himself were in common use in the reign of Eichard II. Indeed, whatever difficulty there may be iu traciag the precise steps of the process by which the chancellor acquired his equity jurisdiction, nothing is clearer than that it was firmly estabhshed in the reign of Eichard II. This is proved, not only by the precedents of petitions before referred to, but by the terms of the statute of the seventeenth year of that monarch's reign, which runs thus : — " Item, Forasmuch as people be compelled "to come before the king's council, or in Chancery, by "writs grounded upon untrue suggestions, that the " chancellor for the time being, presently after such " suggestions be duly found and proved untrue, shall " have power to ordain and award damages, according "to his discretion, to him which is troubled unduly, as " afore is said (b)." It is from this statute that the equity courts, even at this day, derive their power of awarding costs. We have now traced the estabhshment of the Chan- (a) See p. 15, supra. (6) 17 Ric. II. cap. vi. Digitized by Microsoft® 48 LECTURE II. cellor's equitable jurisdiction ; but there stOl remains one of the seven judges to whom I introduced you in the outset, whose judicial functions have not yet been noticed. You recollect that, in my first lecture, I spoke of the Clerks in Chancery, whose business it was to frame the original writs in common law actions. The Master of the Eolls was the chief of these clerks. He was also a dignitary of considerable importance, a conservator of the peace, and had various important duties committed to him, in connexion with the custody of the records. Whether he had originally an independent jurisdiction in equity cases, is a point upon which those most competent to express an opinion have diEfered very widely. To the best of my judgment, he had not ; and the following appears to me to be a correct representa- tion of the gradual acquisition of his present judicial power. In discussing hitherto the Chancellor's equitable jurisdiction, we have spoken of the Chancellor as if he were the sole judge in equity. Ahd so he was in his own court, technically. Practically, however, the Chan- cellor never sate in early times without calling to his assistance either the Master of the Rolls on some others of the Clerks in Chancery, commonly some of those amongst them who, as the practice of appointiag eccle- siastics fell into desuetude, happened to be doctors in civil law. When thus summoned, the Master of the EoUs and the other masters sate really as assessors to the chancellor. They had no voice ia the judgment, Digitized by Microsoft® LECTURE II. 49 but assisted him with their advice. That the S3'stem was in full vogue in Bacon's time, is clear from the thirty-eighth aphorism in his treatise " De Augmentis," in which, spealdng of the Curiae Prsetorise (Chancery Courts), he expresses his opinion that the jurisdiction ought not to be confined to a single judge. He says, " At curiae illse uni viro ne committantur, sed ex pluri- " bus constent " (a). I believe I am correct in stating that, so late even as the chancellorship of Lord Brougham, it was usual for two of the Masters in Chancery to follow the Chancellor into court on the first day of term, and take their seats, or prepare to take their seats, on the bench by him ; whereupon the Chancellor, ceremoniousljr bowing, dismissed them from fmiher attendance. Lord Brougham first discontinued the ceremony. The earliest judicial attendances of the Master of the Eolls would seem, then, to have been merely as assessor, just as in the case of the other Masters. It was also usual for the Chancellor to refer causes to the Master of the Rolls, and to the other Masters, to de- termine particular points, or to investigate particular questions. Even demurrers used before Lord Bacon's time to be. referred to the Master of the Eolls and to the other Masters. In Queen Elizabeth's reign a practice was introduced of issuing commissions author- ising the Master of the Rolls and others, commonly certain of the Masters in Chancery, to hear causes during the absence of the Chancellor. And under the authority of similar commissions, the Masters of (o) De Augmentis, lib. TJii. aph. 38. E Digitized by Microsoft® 50 LECTURE II. the Eolls continued to sit as judges until the reign of George II. The judicial authority of the Master of the Eolls was, however, hmited by some special exceptions, which seem conclusively to negative the notion of its having an original independent existence. Thus, Lord Bacon had, upon taking his seat as Lord Keeper, announced his intention not to refer demurrers or pleas to the Master of the EoUs ; and it is an admitted fact that the Master of the EoUs never heard demurrers or pleas. A similar exception existed as to motions, which the Master of the Eolls never heard. On the other hand, it must be owned that some slight indicia of an independent judicial authority are to be found. For instance, bills appear to have been occasionally addressed to the Master of the Eolls at an early date. Thus, in the selection of petitions -already referred to, there is an instance (the precise date is not known, but it is supposed to be of the reign of Henry VI.) which runs thus — " To my full honourable " and right worshipfuU Maister, my Mayster the Gierke " of the Eolls " (a). But however this may be, it is certain that, dming the period which elapsed from the first establishment of the equity jurisdiction to the reign of George II., the Master of the Eolls gradually departed more widely from the position of a Master in Chancery, and assumed more and more that of an independent judge. In the early part of George the Second's reign, a vigorous controversy arose respecting the judicial status (a) Calendara of Proceedings in Chancery, vol. i. p. lix. Digitized by Microsoft® LECTURE II. 51 of the Master of the Eolls. The more immediate cause of this controversy was a somewhat unseemly collision between Sir Joseph Jekyll, tlie then Master of the RoUs, and Lord King, then Lord Chancellor, Sir Joseph having ordered the registrars of the court to draw up his decrees without requiring the names of two other Masters to he added in the margin, and the Lord Chancellor having directed the registrars to stop all decrees of the Master of the Eolls which were wanting in the usual addition of two Masters' names. It was contended on the one hand that the Master of the Rolls was entitled to exercise, and had, ever since the existence of the Com't of Chancery, exercised the functions of an independent judge ; and on the other, that the Master of the Eolls had no other judicial authority save that derived by him either from and through the Lord Chancellor, or through the com- missions before referred to. The first view was sup- ported by Lord Hardwicke, then Sir Philip Yorke, Attorney- General (who was connected by marriage with Sir Joseph Jekyll, the then Master of the Rolls), in an anonymous treatise, entitled " A Discourse on " the Judicial Authority of the Master of the Rolls ; " the latter view was maintained in the treatise known as " The Legal Judicature in Chancery Stated," which is said to have been written by Mr. Burrough, one of the Masters in Chancery, with the assistance of the afterwards celebrated Bishop Warburton, then a young man (a). The question, so hotly discussed, (a) See biography of Warburton, prefixed to the edition of Ms works by Hurd, toI. i. pp. 8, 9. B 2 Digitized by Microsoft® 52 LECTUEE II. was shortly afterwards set at rest by legislative interference; but the controversy of the day bore rich lasting fruit, and the treatises themselves stUl rank amongst the most valuable storehouses of an- tiquarian information respecting the Court of Chan- cery. The legislative interposition alluded to was effected by the 3rd George II. cap. 30, which enacted as follows : " That all orders and decrees made by the present "Master of the Rolls or any of his predecessors, or "hereafter to be made by the present Master of the " Rolls or any of his successors, except orders and "decrees of such nature and kind as, according to the " course of the said court, ought only to he made by " the Lord Chancellor, Lord Keeper, or Lords Com- " missioners of the Great Seal, shall be deemed and " taken to be valid orders and decrees of the said Court "of Chancery, subject nevertheless to be discharged, "reversed, or altered by the Lord Chancellor, Lord " Keeper, or Lords Commissioners of the Great Seal for " the time being, and so as no such orders or decrees be "enrolled tiU the same are signed by the Lord Chan- " cellor, Lord Keeper, or Lords Commissioners of the " Great Seal." The words of the Act at once suggest a doubt whether it was well adapted to ascertain definitively the limits of the judicial authority of the Master of the RoUs ; since, by the exception introduced, it still left open the question what kind of decrees ought to be made by the Chancellor only ? Practically, however, I believe no doubt or question Digitized by Microsoft® LECTITEE II. 53 ever arose as to its construction. The Master of the Eolls continued to act as an independent inferior judge, capable of hearing a cause and making a final decree therein, subject only to appeal to the Chancellor, but unable to hear either demurrers, pleas, or motions, and sitting, if not as a matter of necessity, yet, in fact, in the absence only of the Chancellor. I have been told that, in the latter part of Lord Eldon's time, the Chan- cellor and Master of the Eolls used to arrange their sittings something after the following fashion. The Master of the Rolls sate from nine to ten, commonly in plain clothes, to dispose of minor matters. At ten the Chancellor took his seat at Lincoln's Inn, and then the Eolls Court rose. The Chancellor sate tUl four, and the Master of the EoUs again at six in the even- ing. Of course these combined sittings did not occur daUy. Neither the Lord Chancellor nor the Master of the EoUs sate every day. But finally, you wiU learn with some surprise, that although the Vice-Chancellor of England, a judge of inferior dignity, had, from the first creation of his office, the power of disposing of every species of business of the court, it was not until the year 1833 (a) that the Master of the Eolls was placed on the same iudependent footing, and em- powered to dispose of pleas and demurrers, and hear motions. And now, gentlemen, having, to the best of my abihty, iutroduced you to the high judicial function- aries of the court, it remains that I should, somewhat briefly, aUude to other functionaries of lower rank, (a) 3 & 4 "Wm. IV. cap. 94, b. 24. Digitized by Microsoft® 54 LECTUEE II. some mention of whom is necessary in order to con- vey an accurate conception of the constitution of the court. These are the Masters, the Accountant-General and his staff, the Eegistrars, the Examiners, and, under the system lately introduced, the Chief Clerks. The first of these classes, the Masters, has nearly expired. A few members of the body still linger in the neighbourhood of Southampton Buildings, but the office and dignity will shortly become matter of history (a). The Accountant-General and his staff form one of the most important elements of the court as actually constituted. You remember that, in my last lecture, I directed your attention to the broad practical distraction between the litigious and the administrative busiuess of the court, and, commented on the vast importance of the latter. WeU, the Accountant- General's office may be esteemed the heart and life of the adminis- trative functions of the court. It is, in fact, the machinery by which the court receives into its keeping and distributes again, at the fitting time, the vast sums which are subject to the trusts of wills and deeds, the provisions of which are carried out imder the direction of the court. The best mode, perhaps, of conveying to your minds a fitting notion of the magnitude of the operations of this department 6f the court, will be to teU you that the total value of suitors' property in the custody of the Court of Chancery, amounts to about (a) The last acting Masters were finally released from their duties in August, 1860. Digitized by Microsoft® LECTURE II. 55 ^50,000,000 (a). The Accountant-Generars office is a thing of recent date. Previously to the year 1726, the custody of the suitors' money was entrusted partly to the usher of the court, hut chiefly to the different Masters to whom the different causes were referred. The Usher and Masters were considered, in reference to these moneys, as standing in the position not of trustees, but merely of bankers or debtors (b). The Masters commonly purchased their offices of the Lord Chancellor, and indemnified themselves by turning the suitors' money to profitable account. Such a state of things could not but terminate in shame and scandal. Accordingly, in the year 1725, it was dis- (a) The exact amount of stock and securities in Court on the 1st October, 1853 (exelusiTe of stock bought with suitors' cash), was ii,ZiO,3iSl. Os. 8d. The amount of suitors' cash (including cash invested in stock for the better security of the suitors) was 3,239,2262. 18s. 5d. (see Return to Order of House of Commons, Parliamentary Paper 73, for 1855), which, after allowing a yearly increase of about one million (as to which see Judicial Statistics, 1863, England and Wales, Part II. xxiii.), would make the amount at the date of the Lecture (1857) between fifty-one and fifty-twO millions. On the 1st of October, 1870, this amount had increased to nearly sixty-one millions (Judicial Statistics, 1871, England and Wales, Part 11. xxxii.). These figures represent merely the securities specifically belonging to, and cash owing to the suitors, and exclude the funds arising from accumu- lations made by the Court by purchasing stock with the suitors' cash not required by them to be invested, and investing and accumulating the dividends, on such stock. These accumulations amounted altogether to upwards of two millions stock, of which one million was taken from the Court by the Grovemment in 1865, and appropriated towards defraying the expense of new Courts of Justice, and the remainder in 1869. (See 32 & 33 Vict. cap. 91.). The fullest and most accurate information respecting the working of the Accountant Gfeneral's Office is to be found in the report of the Chancery Funds Commission of 1864, and the Appendix thereto. (b) See Trevor v. Blucke, 6 De Gex, Macn. & Gor. 170. Digitized by Microsoft® 56 LECTURE II. covered that some four or five Masters had, liie the mass of the community, been afOicted -with the South Sea mania, that they had speculated with the guitors' money, and were defaulters to a large extent. The discovery at once directed public indignation towards the then Chancellor, Lord Macclesfield, who had driven a more regular traffic than his predecessors in the sale of the Masters' offices. He was impeached, and sentenced to pay a fine of £30,000. By a kind of rude equity. Lord Macclesfield's fine was applied towards making good the deficiency in the Masters' accounts; and in order to guard against similar de- faults in future, the Accountant-General's office was created. The new system devised for the protection of the suitors may be shortly thus stated : — All moneys receivable by the Court of Chancery are paid into the Bank of England, to the credit of the Accountant-General. In the office of the latter, by an elaborate system of accounts, the evidence of what is due to each trust is carefully preserved; and all pay- ments directed to be made by the court are effected through the medium of the Accountant-General, who re-demands from the Bank of England the necessary funds. A carefully devised system of checks and safe- guards effectually protects against fraud in procuring money out of court; indeed, complaints have been sometimes heard that there is over-carefulness to a burdensome extent (a). (a) By "The Court of Chancery (Funds) Act, 1872" (35 & 36 Vict, cap. 44) the Office of Accountant-General is abolished, and the duties, Digitized by Microsoft® LECTURE II. 57 Next let me mention the Eegistrars. On entering any of the courts of Chancery you will notice sitting imderneath the judge, an official in wig and gown. This is the Registrar. His duties are, to sit in court, to attend to the causes argued and matters transacted sufficiently to appreciate their bearings, and to make a minute of the decree or order pronounced by the court. These officers exceed in number the number of courts. They attend in court according to a rota. When not in court, they are commonly engaged in settling, in presence of the solicitors or solicitors' clerks who attend upon them, the precise wording of the orders and decrees, the materials for which are furnished by their own minutes, by the iudorsements on the briefs of counsel, and, as respects minor points, by the agreements or admissions of the professional gentlemen in attendance. It is stated by Mr. Hardy, in the preface to his catalogue of Lord Chancellors and other officers of the court, that there is evidence of the existence of these officers (the Registrars) so long ago as the year 1388 ; and they are distinctly mentioned under the names of "notarii sive powers, and aathorities of the Accoimtant-General are transferred to her Majesty's Paymaster-General, for whose default the Consolidated Fund of the United Kingdom is made liable to the suitors. The principal novelty in the Act consists in the establishment of what is called a deposit aecount, to which all uninvested cash of suitors will be placed, and when so placed will bear interest at the rate of 21. per cent, per annum (with the Income Tax thereon) ; the Consolidated Fund being made liable to make good the cash and interest, and the national debt of the country obtaining the benefit of the deposits, ultra the fixed interest. The previous legislation, referred to in note (a), p. 55, ante, had given the country the benefit of the savings (or banking profits) made by the Court of Chancery : this Act gives, in effect, to the country any such future profits after providing the two per cent, interest. Digitized by Microsoft® 58 LECTURE II. " tabelliones," in an order in Chancery of the time of Henry V. (a) The next officers mentioned by me were the Exa- miners. Their duty was, until recently, of a very simple kind. Previously to the reforms of 1852, the evidence in Chancery suits was taken by means of written interrogatories, prepared by counsel, and kept carefully secret until the time came for examining the witnesses. Then the witnesses attended at the Examiner's office. The Examiner read the written in- terrogatories, and,, with the assistance of his clerk, took down the witnesses' answers. Now, as you are pro- bably aware, the examination is conducted before the Examiner viva voce, in presence of the solicitors and counsel on both sides (b). Of the functionaries of subordinate rank, the Masters alone remain to be mentioned. I. said just now, that the office would shortly be matter of history only ; but some few of the facts connected with it seem of suffi- cient interest to deserve mention. The chief, if not the only, business of the Masters or clerks, in the earliest times of the existence of the office, was to prepare the original writs issuing from Chancery in common law actions. This has been already aUuded to (c). You have also heard incidentally that the Master of the EoUs and one or two of the other {a) Sanders's Orders in Chancery, vol. i. p. 7 c. (b) Examination in chief is now exparte ; see Appendix, page xxii. The principal oconpatiou of the Examiners at the present time consists in pre- siding at the cross-examination of witnesses who have made affidavits to be used upon interlocutory motions, or on motions for decree, or at chambers. (c) See p. 11, omU. Digitized by Microsoft® LECTURE II. 59 Masters frequently sate on the bench with the Lord Chancellor, to assist him with their advice — as asses- sors, in fact. But the chief duties of the Masters in connection with the equity business consisted iu con- ducting inquiries iato matters referred to them by the Chancellor, and taking accounts. The history of the decHne and faU of the Master's office has yet to be impartially written. No doubt the sias of that branch of the court were great ; and perhaps, if it were really necessary to sacrifice a Jonah to the storm of popular discontent, the most offending member of the Chancery system was selected. However this may be, in 1852 arrangements were made for the extinction of the Masters' ofi&ce ; the proposed substitute being, that the judges should themselves transact, in chambers of their own, the work (at least the legal work) formerly done by the Masters, the judges receiving the assist- ance of competent clerks, to whom should be left matters of mere routiue, such as taking accounts. To the new system we owe the ofiice of Chief Clerk, two (a) of whom are attached to each judge. It would be rash to express any very decided opinion respecting a system which has been so short a time at work ; but we may venture to indicate the actual gain and probable drawbacks. And first, expedition has been gained; — of this there can be no doubt. On the other hand, it is difficult to say that the original intention, that the judges should work their own business in chambers, has been fully carried out. The Chief Clerks, practically, have cogni- (a) The number has since been increased. Digitized by Microsoft® 60 LECTURE II. sance, in the first instance, of all matters, however im- portant the law. involved may be ; and the increasiag power of these officials cannot be viewed without some feeHng of alarm. No doubt it has been stated dis- tinctly on the bench, that it is the positive right of the suitor to have every matter heard by the judge himself (a) ; but something more than this seems to be wanted, if I may presume to say so ; namely, a system of conducting the chamber business of the court, which, instead of compelling the suitor to claim, the privilege of having his case adjudicated upon by' the judge, should, as of course, bring before the judge liimself the more important descriptions of business. Unless this be accomplished, the relief in getting rid of the delays in the Masters' office may, I fear, be seriously counterbalanced by new vital defects ; and our late reforms may afford another instance of the difficulty of driving out one evil without admitting another. The foregoing sketch of the court by which our equity jui'isprudence is administered would be obviously im- perfect without some notice of the supreme court of appeal, by which the decisions of the Court of Chancery already spoken of are reviewed. I mean, of course, the House of Lords. The appellate jurisdiction of the House of Lords in equity causes is a singular instance of a jurisdiction successfully usurped, at a late date of our constitutional history, in defiance not only of all principle, but of a previous report of a committee of the usurping body. (ffi) See Hayward v. HayTvard, Kay's Rep., Appendix xxxi. Digitized by Microsoft® LECTURE II. 61 And, fii'st, as respects principle. Theoretically, the Crown is the fountain of aU justice. And, in accordance with this the true principle, the appellate jurisdiction of the House in common law suits is based upon a writ of error from the Crown, suggesting information that the proceedings in the common law courts are erroneous, and calling upon the House of Lords to review the record. This principle, according to which all justice flows from the Crown, apphes, perhaps, more strongly to suits in Chancery than to any other legal proceedings ; for the Chancellor really sits as the King's deputy (a), and the Court of Chancery is so essentially the King's court, that iu suits to which the Chancellor is a party, or when there happens to be no Chancellor or Keeper of the Seal, the proper course is to address the biU " To the King's Most Excellent "Majesty iu his High Court of Chancery," instead of to the Lord Chancellor. Under these circumstances, the existence of a right of appeal to the House of Lords, without any intermediate action or motion on the part of the Crown, is theoretically absurd. It amounts to a right of appeal from the sovereign to one branch of the realm. But however this may be, the right is well established. The suitor who is aggrieved by the decision of the Court of Chancery simply pre- sents his petition of appeal, addressed — " To the " Eight Honourable the Lords spiritual and temporal " ia Parliament assembled," who thereupon proceed to adjudicate. (a) See the instance mentioned supra, p. 45, note (a), of a petition to the monarch himself. Digitized by Microsoft® 62 LECTURE II. But further, the circumstances under which the juris- diction was usurped, render the usurpation still more extraordinary. The want of a court of appeal from the equity decisions being felt so early as Ehzabeth's time, the matter was referred to the judges, who certified that the Queen might on petition refer a decree of the Court of Chancery to the judges, to examine and reverse it. In the time of James I., an attempt was made to establish a right of appeal by petition to the House of Lords; but a committee of the House itself reported as follows : — " That divers lords of their sub-committee " (appointed to search for precedents) cannot find that " the word ' Appeal ' is usual in any petition for any "matter to be brought in hither ; but they find that " all matters complained of here were bj' petitions only, " the ancient accustomed form thereof being, ' To the " ' King and his Great Council ' " (a). In fact, there was no precedent. In the reign of Charles II. we find the House of Lords involved in violent disputes with the Lower House respecting not only the assumed jurisdic- tion in appeals from the Court of Chancery, but also respecting the right then arrogated by the House of Lords of entertaining suits not merely as a court of appeal, but as a court of original jurisdiction. The ultimate result of these disputes was, that the House of Lords abandoned the latter claim ; and its usurped jurisdiction in Chancery Appeals was tacitly submitted to and gradually established. (a) Printed Journals of House of Lords, vol. iii. p. 189. Dec. 10, 1621. The report continues, "And they cannot find but only one precedent of ' ' this nature, which was a complaint, by petition, against Michaeli de la " Pole, Lord Chancellor, for matter of coiTuption." Digitized by Microsoft® LECTURE II. 63 It is instructive to observe the retributive justice which has pursued this usurpation. The appellate jurisdiction iu common law suits has, with the assist- ance of the common law judges, been not altogether unsatisfactorily exercised. That from the equity courts has been a continual subject of grievance. In Lord Eldon's time, it was complained that Lord Eldon in the House of Lords affirmed Lord Eldon's judgments ia the Court of Chancery. In our own times we have seen the following result (a) : — 1. A decree by the present Master of the EoUs. 2. That decree affirmed by the court of appeal. Lord Justice Knight Bruce being for an affirmance ; but thfe present Lord Chancellor (b), then Lord Justice, dis-' senting. 3. The decree so af&rmed reversed in the House of Lords by the present Lord Chancellor and Lord Brougham; Lord St. Leonards dissenting. Thus iu the end the opinions of Lord St. Leonards, Lord Justice Knight Bruce, and Sir J. Eomilly were overruled by those of the present Lord Chancellor and Lord Brougham. It is difficult to be satisfied with a court of appeal so organized as to admit of such a result. And that the efforts lately made to obtaiu a more satisfactory consti- tution of the ultimate court of appeal of the kingdom will be renewed, cannot, I conceive, be doubted. {a) The case aUuded to was Money v. Jorden, 15 Beavan, 372 ; 2 De fiex, Macn. & Gor. 318 ; 5 House of Lords Cases, 185. (6) Lord Cranworth was Chancellor at the time of the delivery of the lectures. Digitized by Microsoft® 64 LECTURE II. Gentlemen, my necessarily imperfect sketch of the history and constitution of our equity tribunals must end here. I have, in this lecture, done my hest to convey to you some idea of the machinery itself by which equity jurisj)rudence is administered. In my next lecture it will be my endeavour to show you this machinery actively in motion. Digitized by Microsoft® LECTURE III. The present lecture, gentlemen, is intended to com- plete what I may call the first division of my course. It will be my object this evening to convey to you some general notions respecting the procedure of the Court of Chancery, — to show you, in fact, the method by which the courts described in my last lecture admi- nister the system of jurisprudence, which was somewhat faintly and imperfectly shadowed forth in my first; Obviously, wherever there is a system of jurispru- dence and a staff of judges to admiuister it, the latter must be guided in their administration by some fixed and definite rules. St. Louis, King of France, sittiag under an oak at Vincennes, and dispensing justice to his subjects in person, presents a picture which, how- ever delightful, cannot be made a reality in modern times. To guard against surprise by either litigant party upon the other, written statements of the grounds of complaiut of the plaintiff, and grounds of defence of the defendant, are indispensable; and to ensure the orderly conduct of proceedings, regulations for the guidance of suitors must be laid down. In fact, there must be written pleadiags and rules of practice, or what I may term in its entirety a code of procedure. r Digitized by Microsoft® 66 LECTURE III. Now, in reference generally to the subject of pro- cedure, I would observe that it is impossible to deter- mine in the abstract that any particular system of pro- cedure is best. The procedure must depend, to a great extent, on the nature and constitution of the tribunal, the working of which it is intended to regulate. For instance, we have in this country, in full operation, two systems of pleading and practice — ^that of the conunon law and that of equitj^ — differing most widely; and yet, having regard to the essentially different constitutions of the two tribunals, we cannot fail to see that each, notwithstanding its particular advantages and disad- vantages, is best adapted for its own judicature. It will, I think, be not. uninstructive if, before pro- ceeding to the particular subject of this evening's lec- ture, I point out very briefly the broad differences between the common law and equity jurisdictions in reference to the constitution of the tribunals and method of procedure. In regard to the constitution of the tribunals, the distinctive feature of the common law is, that the" judicial duties, instead of resting wholly with the judge, as in equity, are parcelled out between the judge and jury. In the equity courts, the judges are judges of matters of fact as well as of matters of law (a). At com- mon law, the jury are the judges of fact, and only the law is left for the decision of the judge or court. Thus, supposing an action at law to involve the two following (a) Since the atore was written, provision lias been made by statute for trying questions of fact in Chancery by a jury.— 21 & 22 Vict. u. 27, ss. 3—6. Digitized by Microsoft® LECTURE III. 67 points, viz., first, whether a particular deed was or not executed upon a particular day; and, secondly, whether upon the true construction of it a particular person took an estate in fee or an estate in tail ; the first point would be one for the decision of a iuxj, the second for the decision of the court; whereas, upon the same two points occurring in an equity suit, the judge would defermine both. Next, as to procedure. Flowing from this division of judicial functions between the judge and jury, or at least so intimately connected with it that it is difficult to say how much of the connection is essential and how much accidental merely, we have two great distinctive features in common law procedure as contrasted with that in equity, viz. : — First. A scientific system of pleading intended to bring the matters in controversy to certain definite issues. Secondly. Examination of witnesses in open court, in presence of the judges of fact. In reference to the first of these, it is hardly too much to saj^, that the common law system of pleading, if not historically a consequence of the severance of the fimctions of the judge from those of the jury, is almost a necessary condition to the working of any judicial system in which such severance exists. Unless, indeed, the attack and defence be brought systematically to certain issues upon matters of fact, and certain issues upon matters of law, the trial of facts by a jury would be hardly possible. The task of selecting the issues from a mass of voluminous statements — such as occur in 1' 2 Digitized by Microsoft® G8 LECTURE III. Chancery pleadings, for instance — and of distinguishing the issues of fact from the issues of law, must in any case he laborious ; but to perform it in the heat and hurry of a Nisi Prius trial seems next to impossible. It is almost a matter of necessity that the judge should be able to refer to the pleadings, and, addressing the jury, say, The questions which you have to determine are, 1st, so and so; 2ndly, so and so, &c. &c. Time does not permit me to discuss in detail the question how far a similar system of scientific pleading would be suitable in equity. My own opinion is against its suitableness. In point of fact, however, no attempt is made in equity pleadings to reduce the case to any clear definite issues. The statement of the plaintiff's case in the bill differs little in language or form from any other statement of facts which might be drawn up for the information of third parties, say an applica- tion to a Government Board. The defendant's answer usually admits, denies, or qualifies seriatim each state- ment in the bill ; and occasionally, before proceeding to notice the statements in detail, the defendant gives a general history of the case from his own point of view. The issues, both of fact and of law, are thus often involved in large masses of statement, and have to be selected, so to speak, by the judge who tries the cause, with the assistance of the arguments of comi- sel; a task which is, however, rendered feasible by the opportunity of referring to the pleadings and written evidence as frequently and leisurely as he may wish. Secondly, as respects the second distinctive feature Digitized by Microsoft® LECTURE III. 69 of the common law, viz., examination of witnesses in open court. Probablj'^ few here present are ignorant that at Nisi Prius trials the -s^itnesses give their evi- dence orallj', in presence of the jury; while upon the hearing of equity causes, the evidence consists of affidavits, or of depositions of witnesses taken down previously (a). It would, perhaps, he too much to say that oral examination of witnesses in open court is absolutely necessary to the working of the jury system. The written evidence might, of course, be read to the jury, by the judge, just as the Nisi Prius judge reads or refers to his notes of the evidence previously givenvivd voce; but the chance of its commanding the attention of un- trained minds, without the previous viva voce statement, would be very slight. On the other hand, the difficulties which attend the iatroduction of oral examination into the trial of equity causes are not trifling. The equity judge, it must be remembered, performs the threefold functions — of pleader, in selecting the issues for himself; o{ judge, in deciding the law ; and of jury, in deciding the facts. To cast upon one already so burdened the additional task of controlling the current of viva voce examina- tion ; of taking notes of the evidence ; and of sup- plying, iu reference to observation of demeanour, the place of twelve jurymen; would seem to be an (o) This must be now qualified, so far as the new order of court as to evidence, made the 5th February, 1861, provides for t^ivs wcc examination and cross-examination at the hearing. See Mr. Barber's Statement, Appendix, p. xxii. Digitized by Microsoft® 70 LECTURE III. experiment, the practical success of which must be doubtful (a). The results of our comparison are then as follows : — First. That the broad difference between the compo- sition of the common law and equity tribunals consists in the existence of the jury system as part of the former, and its absence as part of the latter. Secondly. That a scientific system of pleading to issue is essential to the working of the common law jury system, but it would not be appropriate in equity suits. Thirdly. That viva voce examination of witnesses in open court is an appropriate, if not essential, adjunct to the jury system-; while it remains for further expe- rience to determine how far it can be usefully apphed to the trial of equity causes. I abstain, somewhat reluctantly, from commenting on what seem to me to be the actual advantages and dis- advantages of the two systems of procedm'e, because I feel that I have akeady digressed at some length from the immediate subject of my lecture (6). Returning to this, and observing that I have imder- taken to give you " a general outhne of a suit in equity," it seems to me that I shall be able to pre- sent a more lively picture to your minds if, instead of merely stating in the abstract the different stages through which a suit may pass, I assume the exist- ence of some particular suit for some particular purpose, (a) The great length of time consumed in some of the recent hearings on i(ivd voce evidence seems to support these observations. (6) Some otservations on this point, which originally formed part of the lecture, but were omitted on account of their length, will be found at Appendix E. Digitized by Microsoft® LECTURE III. 71 and conduct it through a course of imaginary litigation to a final close. Indeed, it will afford greater facility of illustration, if I imagine two suits of different kinds. You recollect my observations respecting the great practical division of the business of the court into liti- gious and administrative. I will take a suit of each sort. You must understand that my selection is made, not with reference to any scientific classification of equity, but merely for the purpose of exhibiting the dif- ferent phases of existence that each of these different kinds of suit not uncommonly passes through. My specimen of the first, or litigious, class shall be a suit for the purpose of setting aside a deed, as having been fraudulently obtained ; that of the second, or administrative, class, a bill for administering the trusts of a testator's vdll. And now, let us commence our specimen suit of the litigious class. Practically, of course, the first step will be the collection by the solicitor of the facts and circum- stances of fraud imder which the deed was obtained, and the preparation of a connected statement of those facts and circumstances for the advice of counsel. Then will follow the preparation of the draft biU by counsel. After the draft has been prepared, the bOl has to be prinjfed (formerly it used to be engrossed on parchment), and the solicitor corrects the proof sheets of the bill, and passes it through the press. Up to this moment, be it observed, there is no suit in existence. The filing of the bill, which is done^by leaving at the of&ce of the record and writ clerks one of the printed copies, is the first step in the suit. In a Digitized by Microsoft® 72 LECTURE III. common law action, the writ is the first step. Formerly there was a writ in equity suits also, viz., the famous writ of subpoena, the invention of which is commonly, though erroneously, ascribed to John de Waltham, Master of the EoUs of the time of Eichard II. But the writ of subpoena did not precede the biU, as the com- mon law writ precedes the declaration, but followed it. It was, in fact, a writ commanding the defendants, under a penalty of ;£100, " suhpcend centuvi lihrarum," to appear and answer the bill. The pecuniary penalty was a pure fiction (a). The true modus operandi was to treat a defendant who did not appear and answer as a contemner of the jurisdiction of the court, and to send him to prison. Latterly, I think about the year 1833, the form of the writ of subpoena was modified so as to represent accurately the penalty which the defendant really incurred by faUing to appear and answer. It ran : " Upon pain of an attachment issuing against your " person." This procedure was, however, still open to two objec- tions, namely, the word " attachment," in the subpoena, being a technical term, was not adapted to convey to the person served anj^ very distinct notion of the penalty incurred by his default ; and the writ itself contained no information at aU respecting the nature of the plaintiff's (a) The same fiction was observed from early times, in reference to the writ of injunction. A decree of the reign of Richard III. runs thus : — " Injunctum fuit infrascripto Thome Hunston, quod ipse subpoena " f orisfacture mille librarum, &c. &c. per se aut per alium seu per alios " nuUo modo ulterius prosequatur in loquela," &c. &c. — Calendars of Pro- ceedings in Chancery, vol. i. p. cxiii. And it is still observed ; see Braith- waite's Record and Writ Practice, p. 227. Digitized by Microsoft® LECTURK III. 73 claim. This information the defendant could obtain only by applying at the record and writ clerks' office, and procuring (at a considerable expense if the bill were long) an office copy of the bill. In 1852, both these defects were remedied. The writ of subpoena was abolished altogether; and now, instead of the plaintiif serving the defendant, as formerly, with a writ which informed him that a bill had been filed against him in Chancery, and compelled him to go to the record and writ clerks' office and obtain, at consi- derable expense, an office copy of the bill, the plaintiff serves the defendant with one of the printed copies of the bill, which contains an indorsement as clear and as free from technical language as could be devised. It is m these words : — " We command you, that within eight " days (a) after service hereof on you, you cause an " appearance to be entered for you in our High Court of " Chancery to the within bill of complaint of the withta- " named A. B., and that you observe what our said " Court shall direct." The following note (b) is added to the indorsement : — " If you fail to comply with the above " directions, you will be liable to be arrested and impri- " soned. Appearances are to be entered at the Eecord " and Writ Clerks' Office, Chancery Lane, London." (a) If the bin is to be served out of the jurisdiction, the court limits a special time for appearing. (b) The note is now as follows : "If you fail, &c., the plaintiff may enter " an appearance for you, and you will be Bable to be arrested and im- " prisoned, and to have a decree made against you in your absence." When the defendant is either a coi'poration or a peer who has failed «to appear after letters missive, or when the bill is to be served out of the jurisdiction, special forms of note are used, as to which see Braithwaite's Becord and Writ Practice, p. 29. Digitized by Microsoft® 74 LECTURE III. And now a few words about the frame of the bill. It would be difficult to imagine a less technical docu- ment. It is in form a petition to the Lord Chancellor. In our particular suit aU the facts and circumstances of fraud — in fact, the whole story of the imposition alleged to have been practised — would be told with just so much of detail as might be requisite to convej^ an accurate view of the plaintiff's case ; and the bill would conclude with a prayer that the deed might be declared void, as having been fraudulently obtained, and be set aside accordingly. And here allow me in passing, to give a short illustration of the difference between equity and common law procedure. I am unable to compare the bill in my supposititious case with any common law declaration ; but allow me to assume that the defendant in equity, had before the filing of the bill to set aside the deed, commenced an action at law founded on the deed against my now plaintiff in equity. The defendant at law (our plaintiff in equity) would, under such cir- cumstances, instead of setting but in detail all the facts which are stated in the bill, have pleaded simply, "That the said deed was procured by fraud." Upon this plea being traversed {i. e., the truth of it denied), the cause would have gone down to trial, the facts and circumstances of fraud would have been elicited by viva voce examination in open court, and the jmy, assisted by the directions of the judge, would have said whether the plea was proved or not. But to return to my suit. The defendant being thus in possession of the general story told by the plaintiff, we have to consider his line of action. His first step Digitized by Microsoft® XECTURE III. 75 obviousty is to enter an appearance, in obedience to the indorsement on the bill. We may assume, I think, that this is done for him by some sohcitor whom he consults ; but he may, if he lilies, do so in person. Next, how is the biU to be met 1 Speaking generally, where a x^laintiff comes before a court of equity, making a statement, and foundiag on that statement a claim to rehef, the defence of the defendant, if he haye a valid one, must fall within one of the three following heads : — 1. The plaintiff may have stated the facts accurately, so far as is material ; and yet, upon a just view of the case, he may not be entitled to relief in a court of equity. Thus, in our supposititious case, the facts and circumstances stated by the plaintiff as amounting to a case of fraud, may be insufficient to establish a case of that kind. 2. The plaintiff's biU may set forth facts amounting to a case of fraud, and the statements, so far as they go, may be accurate ; but the bill may have suppressed aU notice of some other facts affording a defence ; as, for instance, in our selected case, a compromise founded on valuable consideration and entered into subsequently to the fraud. 3. The defence to the plaintiff's bill may consist in the detailed disproof of some and explanation of others of the facts and circumstances rehed on by the plaintiff, the effect of such disproof and explanation being to give an entirely new complexion to the case. To each of these three heads there belongs an appropriate technical defence in equity suits. Digitized by Microsoft® 76 LECTURE III. In the first case the defence is by demurrer. The defendant says, " Admitting, for the sake of argument, " that every word you have stated is true, still I con- " tend you have made no case for relief in equity." In the second case the defence is by plea. The defendant pleads (according to the facts supposed) that, subsequently to the alleged fraud, the plaintiff compromised the matter with him. In the third case, the defendant puts in an answer to the bill, meeting in detail — by denial, explanation, or otherwise — the statements therein contained. Some additional explanation seems necessary in reference to each head of defence. And first, I would not have you believe that a bill of the kind which I have selected for illustration (viz., a bill to set aside a deed on the ground of fraud) is often demurrable. I never knew one so. The plaintiff more commonly overstates his case, and it fails, if at all, in the proof. Next, it would be a serious mistake to suppose that because a bill is demurrable, therefore it should be demurred to. On the contrary, where a biU is loosely drawn, and the facts and the grounds of relief are imperfectly stated, and yet it is possible that the plaintiff might, by care and pains, strengthen his case, nothing could be more dangerous to the defendant's interest than to demur ; for upon demurrer filed, the plaintiff perhaps either amends at once and betters his pleading ; or the demurrer is set down for argument, the legal features of the case are sifted, the demurrer is perhaps allowed vdth costs, but the plaintiff has leave to amend his bill. He does so, having had the Digitized by Microsoft® LECTURE III. 77 full assistance of the argument before the court ; and in some cases this assistance is well worth the costs of the demurrer which he has to pay. The cases in which a demiu'rer may safely be resorted to by a de- fendant are maiuly those where the litigation turns wholly on the construction of written documents, all of which are fully set out in the bill : as, for instance, ■ a hill for specific performance, where the question is whether a long correspondence fully and fairly set out on the bni amounts to a contract for sale of lands within the statute of frauds ; or a bill filed against a trustee by a plaintiff, alleging himself to be a cestui que trust, where the question is whether the plaintiff really takes an interest under the instrument of trust. I think we may assume, then, that our particular defendant does not demur. But secondly, as respects a plea in equity, my sup- posed compromise would be a good case for a plea ; but as a general rule, a plea in equity is not easily drawn. The defence is often anticipated by the bill. Thus, a bill is filed, praying an account of transactions between the plaintiff and defendant, although there has, in fact, been an account stated and settled between them. The plaintiff, foreseeing that the de- fendant may plead the account stated, mentions it in the bill, hut states at the same time in detail a variety of circumstances, say of fraud or concealment on the part of the defendant, rendering it inequitable for the defendant to rely on the account stated. The bOl in fact, is made to combine what in common law language would be a declaration, an imaginary plea by the de- Digitized by Microsoft® 78 LECTURE III. fendant, and a repKcation by the plaintiff. Now then the defendant cannot plead the account stated, without at the same time answering seriatim all the facts and circumstances, on which the plaintiff has ia his ^hill relied as avoiding the effect of the statement of account. This is commonly so difficult and troublesome, that the defendant's counsel resigns himself to meeting the case by answer. But suppose a plea feasible, and suppose it drawn and filed. It remaias that I should show you how it is dealt with. A plea in equity possesses a peculiarity distiuguishing it at once from a plea at law ; viz., that it is almost necessarily true. Subject to certain limited exceptions, such as pleas of matters of record, the defendant must himself swear to the truth of his plea. It results that practically the only questions which arise ia reference to a plea in equity are : first, whether it is technically sufficient, that is, well pleaded in form ; and, secondly, whether it amounts in sub- stance to a sufficient defence to the suit. In fact, a plea in equity must, as a rule, succeed, unless it be bad, or what at law would be called demurrable. The mode, however, of trying the validity of a plea in equity is not by the plaintiff demurring to it, as at law. The equivalent step is setting it down for argu- ment before the judge. Thereupon the counsel for both sides attend, and after hearing their arguments, the judge decides, either that the plea is good, and allows it, or that it is bad, and disallows it; in the latter case, however, frequently directing it to stand in lieu of an answer, so far as it goes, without prejudice Digitized by Microsoft® LECTURE III. 79 to the plaintiff's right to call for a fuller answer, or, as the technical phrase is, with liberty for the plaintiff to except. It may be asked by some of you, what becomes of the suit, supposing a plea to the whole bill to be allowed ? Practically, the suit is at an end. In strict- ness the plaintiff has a right to take issue upon the plea, and to go into evidence to disprove it. I recol- lect, however, many years since, when a pupil, asking the equity draughtsman, in whose chambers I was working, whether he ever knew evidence gone into upon a plea, and he said no. Certainly in my own more limited experience, I have never known a case. But, thirdly, the defence by answer remains. And here I would speak of an ingredient in equity plead- ings hitherto left out of sight, viz., the interrogatories. These used formerly to be included in the bill itself; now they constitute a separate document. They are to be filed by the plaintiff within eight days after the time limited for the appearance of the defendant who is sought to be interrogated (a). It is important that you should pay attention to this word limited. It has occasionally been overlooked, and considerable incon- venience has resulted to the plaintiff. Thus the defendant has been dilatory in entering an appear- ance, and the plaintiff, supposing a certain number of days from the defendant's appearance to be allowed for filing interrogatories, has suffered the eight days from the time limited for appearance to elapse, and then has been obliged to go to the court specially, (a) 16th order of 7th Aug., 1852, now rule 2 of consol. order xi. Digitized by Microsoft® 80 LECTURE III. at some little expense, for leave to file interroga- tories {a). The filiag of interrogatories is optional on: the part of the plaintiff; but the defendant, even if none be filed by the plaintiff, has equally the right of putting in an answer. After filing the interrogatories, the plaintiff is bound to deliver a copy of them to the defendant's solicitor, either -within eight days after the time allowed for appearance, or, should the defendant prove dilatory in appearing, then within eight days after appearance. If interrogatories are delivered, then as a general rule, unless the defendant can refuse to answer on the ground that to do so would expose him to penalties or criminal proceedings, or involve a breach of professional confidence, or on some other special ground, he is bound to answer the interro- gatories. If he do not answer fully, the plaintiff excepts to the answer, stating in what respect he considers it insufficient ; and the court, on argument, decides on the sufficiency or insufficiency. It is at the stage of the proceedings which we have now reached, that the step of moving for production of documents commonly occurs. A plaintiff in equity has a right to ask the defendant whether he has not in his possession documents supporting his (the plain- tiff's) case, and to inspect any relevant documents which the defendant admits himself to have. Under {a) See 2 Smale & Giffard, iii. Bat the delay is often unimportant, the clerks of records and writs holding, that where (as occurs in a large pro- portion of cases) the defendant is not served, but his solicitor accepts service, giving an undertaking to appear, there is no time ' ' limited for appearance " within the meaning of the order. Digitized by Microsoft® LECTURE III. 81 the practice previously to the late alterations, an interrogatory as to documents was invariably inserted in the hill itself. This the defendant met by append- ing to his answer a schedule or Hst of documents, and the plaintiff, by his counsel, moved in open court for the production of the documents scheduled by the defendant. The question, whether a plaintiff was entitled to the production of particular documents, was frequently one of the most embarrassing that could arise ; the principles being by no means autho- ritatively ascertained, and the decisions most contra- dictory. The effect of the new practice has been to transfer altogether to chambers this head of discovery. Now the plaintiff takes out a summons at chambers (a), upon which an order is made directing the defendant to file, within a limited time from service of the order, an afl&davit, stating what documents he has in his possession relating to the matters in question in the suit; and upon the affidavit beiag filed an order for production is made, extending to the documents ad- mitted by the defendant's affidavit to be in his posses- sion, with the exception of such as are privileged from production (b). Under the present altered practice, the bill more commonly omits the charge as to documents on which the corresponding interrogatory would be founded, and (a) See 15 & 16 Vict. cap. 86, s. 18 ; 15 & 16 Vict. cap. 80, s. 26 ; and general notice of lOth Not., 1852, as to appUcations to be made at chamters. (J) The above statement is somewhat brief. The course of practice will be found more fully explained in Mr. Barber's Statement, Appendix, p. xii. o Digitized by Microsoft® 82 LECTURE III. the inteiTogatory itself is also omitted. Indeed, it would be useless to insert the interrogatory, since, if the defendant answers insufficiently, an exception would only caU forth the disapprobation of the judge, who would say (this used to occur when the new practice first came into operation). Why except, when you can go to chambers and get production there, more expeditiously, and at less expense ? (a) The advantage of ihe altered practice on the score of expense is considerable, but there are drawbacks. Under the new pi-actice, the plaintiff's equity counsel commonlj' sees neither the affidavit made on the ques- tion of production, nor the list of documents ; and, occasionally, the importance of taking out the usual summons is overlooked altogether. Very frequently, in my own experience, the plaintiff's counsel finds the answers of the defendant sent to him in order that he may advise whether they are sufficient {i.e., whether they fully and properly answer the interrogatories), and also as to the further conduct of the suit, before any step has been taken to compel production. It is obvious that, until production has been obtained, it is impossible in a litigated case to form a correct opinion (as) Law v. London Indisputable Company, 10 Hare, App. xx. ; Perry v. Turpin, Kay, App. xlix. See, too, Kidger v. Worswick, 5 Jmist, N.S. 37. Tlie decision contra, in Hndson v. Grenfell, 3 Griffard, 388, is opposed to the Tiews stated by tte same judge in Barnard v. Hunter, I Jurist, N. S. 1065. The tendency of the recent decisions has been to make the chamber practice as to production of documents more effectual ; see Noel v. Noel, 32 Law J. (N.S.) Chanc. 676 ; 1 De Gex, Jones & Sm. 468; and therefore to discourage the use of the interrogatory as to documents, except in special cases. Digitized by Microsoft® LECTUKE III. 83 respecting fiirtlier proceediags. Thus, in my supposed suit, the motion for production may lead to the dis- closure of documents, overlooked in the answer, which may materially support the plaintiff's case, or render necessary some variation in the statement of it by amendment. This is a branch of proceeding, gentle- men, which peculiarly concerns you ; and you may set it down as a good rule to apply for production at chambers at the latest upon the answer coming in. There is another practical point arising at this stage of our suit to which I particularly desire to direct your attention. Under the new procedure it is the right of a defendant to compel production of documents by the plaintiff, as soon as he, the defendant, has fully answered the plaintiff's interrogatories (a). I am dis- posed to think this privilege even more valuable to the defendant than the corresponding one commonly exer- cised by the plaintiff, and for the following reason. The plaintiff's bill, it must be recollected, is based merely upon the written instructions of the plaintiff's soHcitor, which, again, have in many cases for their foundation only the verbal statements of the plaintiff himself to the solicitor, made without the sanction of an oath. That documents overlooked by the bill, but supporting the defendant's case, should be found there- fore in the plaintiff's possession, is even more probable than that documents overlooked by the answer, sup- porting the plaintiff's case, should be foimd in the defendant's possession. Indeed, I feel this so strongly that, as a general rule, when settling an answer in (a) 15 & 16 Tict. cap. 86, s. 20. G 2 Digitized by Microsoft® 84< LECTURE III. a litigated case, I append now a note at the foot, advising the defendant to take the usual steps to compel production by the plaintiff within a reason- able time after answer filed. Another privilege conferred by the late practice on defendants, which, if exercised at all, will be exercised at the stage of the cause which we have now reached, is that of filing interrogatories for the examination of the plaintiff. Under the old practice, if the defendant felt sure that the plaintiff had within his own breast information which would support the defence, his only course was to file a cross biU. Now, his object is accomplished by means of cross interrogatories, prefixing a con- cise statement of the subjects on which discovery is sought {a). It must be remembered, in reference to both these privileges conferred upon defendants by the new prac- tice, that, although the defendant is not at liberty to exercise them until he has put in a full answer, he is not bound to wait until the six weeks, at the end of which the answer is, ia the absence of exceptions, conclusively held to be sufficient, have expired. He may move for production, or file his interrogatories, at once. But in the former case, the court would not compel the plaintiff to produce the documents, without first giving him an opportunity of considering whether he preferred excepting to the answer as insufBcient ; and ia the latter case, should the answer be excepted to, and be found insufficient, the interrogatories (») 15 & 16 Vict cap. 86, s. 19. Digitized by Microsoft® LECTURE III. 85 would, upon motion by plaintiff, be taken off the file (a). But to return to the main conduct of the suit. After the defendant has answered the interrogatories, and the plaintiff's soKcitor has obtained an inspection of documents, the question of amendment arises. Should the answers and documents disclose facts calling for some alteration of or addition to the plaintiff's case, the plaintiff effects his object by applying for leave to amend, and his counsel interweaves the new matter into the story told by the old bUl. If the amendments introduced between any two words exceed in length 180 words, the bill must be reprinted (b). If further discovery is required from the defendant, in reference to the amendments, additional interrogatories are filed, and must be answered. And even if no further interrogatories be filed, the defendant may, if he think fit, put in a further answer. Then comes a formal replication by the plaintiff, and the cause is at issue. And now as to the evidence. This iS'adduced, either by affidavits sworn voluntarily by the plaintiff's and defendant's witnesses, who, at the option of the party against whom their evidence is given, are liable to be cross-examined viva voce before the examiner ; or by a viva voce examination and cross-examination before the examiner ia the first instance ; or partly m one (a) See Lafone v. Faliland Islands Company, 2 Kay & Johnson, 376 ; and Walker v. Kennedy, 3 Jurist, N.S. 481. (J) There cannot he a partial reprint. See Naylor v. Wright, 3 Jurist, N.S. 95 ; s. c, 7 De Gex, Maon. & Gor. 403. Digitized by Microsoft® 86 LECTURE III. mode and partly in the other (a). At this stage of the litigation our equity procedure proves, it must be con- fessed, m cases of the class now under consideration, very iaadequate. The question of fraud or no fraud may depend — in the larger proportion of cases does depend^ — upon the degree of weight to he attached to the evidence of the witnesses ; and the judge who is to decide on the effect of the evidence merely reads it in the shape of affidavits, or in that of a continuous narrative, compiled, so to speak, by the examiaer in Chancery before whom the witnesses have been exa- mined viva voce. The difficulties which must attend a vivd voce examination in open court, before a single judge who is already loaded with the burden of select- ing the issues from the mass of pleadings, and of per- foi"ming the double functions of judge and jury, have been before alluded to. Still the advantages that might be expected from a successful introduction into our equity practice of oral examination in open court, in those classes of litigation in which vivd voce evi- dence is essential to eliciting truth, appear so great, that the absence of any fair experiment of the feasi- bility of the step seems a subject of legitimate regret. The only approach to experiment hitherto attempted is the enactment of the 39th section of the Chancery Procedure Act, 1852 (b), which provides that, upon the {a} The practice, as here stated, was that existing under the 4th general order of Jan. 13, 1855 (afterwards consol. order xix, rule 3), then in force. For the existing practice, see Mr. Barber's Statement, Appendix, page xxii. (5) 15 & 16 Vict. cap. 86. This enactment was based on the recom- mendation of the Chancery Commissioners of 1850 and 1851, whose views Digitized by Microsoft® LECTURE III. 87 hearing of any cause, the court, if it shall see fit, may requii-e the production and oral examiaation before itself of any witness or party in the cause, and may direct the costs to be paid as it shall see fit. But you must perceive at once that the operation of this clause is seriously limited in consequence of the court's power to direct an oral examination being exercisable at the hearing only; and when the cause has reached that stage, both the court and the parties are loth to incur the further expense of a special oral examination in open court. What seems to me to be rather wanted is a power in the court, on the prehminary application, at chambers possibly, of either party, before evidence is entered into, to decide that the whole evidence, or the evidence of certain particular witnesses, shall be con- ducted in open court (a). But however this may be, it may, I think, be safely said that a vivd voce exami- nation before the examiner presents no advantage over affidavit evidence, except as affording a convenient machinery for the examination of those witnesses who are unwilling to swear affidavits, and must, therefore, be summoned to give evidence in some form (b). on the subject will he found stated in tteir first Report, pp. 21, 22. But the practice has been altered since the lectures were delivered. See now Mr. Barber's Statement, Appendix, page xxii. (a) Rule i of the recent order (Feb. 5, 1861), as to evidence approxi- mating closely to the suggestion here made, provides that, after issue joined, the Judge at Chambers may make an order that the evidence in chief, as to any pa/rtkular facts or issues, shall be taken viva voce at the hearing. The rule, however, is, I believe, but little resorted to in practice. (6) This view has since prevailed, and vivd voce examination in chief in presence of counsel and solicitors on both sides is now no longer used, un- less by special agreement between the parties. See Appendix, page xxii. Digitized by Microsoft® 88 LECTUEE III. But while recognising the shortcomings of otir equity procedure in the respect just mentioned, it is conso- latory to be able to add, that the number of Chancery suits in which examination of witnesses in open court would really be of importance, is so small as compared with the total number, that the blemish is less serious than might be supposed. Affidavits, sworn as they are under the check afforded by the power of cross- examining the witnesses who swear them, and evidence by examination and cross-examiuation before the ex- amiaer of witnesses who are unwilling to depose by affidavit of their own accord, are found, in by far the larger proportion of Chancery suits, amply sufficient instruments for eliciting the requisite evidence. And now at last our suit has been set down. It stands for hearing. It is heard ; if you wish to know how, I should advise you to go and sit in court some cause day. Supposing the hearing to run through all its stages, they would be as follows : — 1. The leading counsel for plaintiff opens the case. 2. Then plaintiff's evidence is read by the junior counsel for plaintiff, who afterwards comments on the evidence. 3. The leading counsel for defendant states defend- ant's case. 4. Evidence for defendant is read, and jtmior counsel for defendant comments thereon. 5. The plaintiff's leading counsel replies. Then comes the judgment of the court, and then the decree, which is drawn up by the registrar in the mode which I pointed out in my last lecture. Digitized by Microsoft® LECTURE III. 89 Should either party he dissatisfied with the decree, and wish to appeal, the appeal assumes the form of a petition to the Lord Chancellor, stating, shortly, the fact of the decree, that the party appealing feels him- self aggi'ieved, either in respect of the whole decree or some particular part of it, and praying that the case may be re-hcard. The appeal is in theory not the removal of the cause from a subordinate court to a higher one (as in the case of, say, a writ of error from one of the common law courts to the Court of Ex- chequer Chamber), but a re-hearing of the same cause in the same court, by a judge of higher judicial autho- rity. In fact, until the decree is actually enrolled, there is no limit to the power of the court to re-hear, except that imposed by the judicial status of the judge before whom a re-hearing is sought. Thus the Master of the EoUs, or the three Vice-Chancellors, may re- hear their own decrees {a), but not those of each other. The Lord Chancellor, on the other hand, has power to re-hear not only the decrees of the four inferior judges, but also those of any previous chan- cellor. It must not, however, be supposed that the suitor's right to a re-hearing is co-extensive with the power of the court to re-hear. On the contrary, the practice of the court is now clearly settled that there can be no second re-hearing before the judge of appeal, without leave obtained upon a special apph- cation (6). (a) And also those of their predecessors in office ; see 53 Geo. III. cap. 24, sect. 2 ; 5 Vict. cap. 5, sect. 22. {b) See the cases collected in Moss v. Ealdock, 1 Phillips, 118. Digitized by Microsoft® 90 LECTURE III. There is, however, one mode in which a second re- hearing may take place without a special application. The suitor may, as of course, if he think fit, apply to have the cause re-heard by the same inferior judge before whom it originally came (and this step is occa- sionally adopted when the error in the decree is sup- posed to be due merely to some oversight of law or fact on the original hearing) ; and after this re-hearing by the inferior judge, the cause may be again re-heard, as of right, in the Court of Appeal. In the celebrated case of Brown v. Higgs (a), which came before Lord Eldon, after having been heard and re-heard by Lord Alvanley, Master of the EoUs, Lord Eldon pointed out very forcibly the inconveniences of this course. He expressed himself thus : — " From this decree the cause comes on upon appeal. " A doubt struck me upon the argument, whether, after " a re-hearing at the Eolls, it was fit for this court, in " this place, to re-hear the cause ; and whether it ought " not to go immediately to the House of Lords. It is " very obvious, if the rule laid down by Lord Thurlow " in Fox V. Mackreth (6) is a wholesome rule, that there " shall not be a second re-hearing, but the parties are to "go to the House of Lords ; and on the other hand, if " the practice is according to what has happened in this " instance, that, where the case begins at the Eolls, it " maybe re-heard there, and upon appeal in this place, " before it goes to the House of Lords; the suitors will {a) 8 Vesey, 561. (6) Reported 2 Cox, 158. Digitized by Microsoft® LECTURE III. 91 " have to undergo the expense of four hearings in the " one case, and of three only in the other. But, what- " ever consideration may be due to that circumstance, " when occasion has presented it, as fit to be looked " to in future cases, I am not at liberty, the first time " that it has occurred in experience, to say, I dechne " the duty of hearing the cause. " Upon conversation with persons who are prac- " tised in courts of equity, it has been thought, that " hx cases of this sort the court might formally affirm "the judgment, and suffer the cause to go to the " House of Lords, by reference to other cases, where " it is conceived the parties mean to go to the House " of Lords. But I consider it contrary to the duty of " a court of justice, under any circumstances, so to " act. The suitors have a right to the deliberate " attention and deliberate judgment of every court, in " every stage in which, according to the constitution, " the cause may proceed ; and there can be no cir- " cumstances under which I should ever permit myself " to say, as the cause is to go elsewhere I give no "judgment but pro formd. If it should be thought " right to prevent this in future, I am of opinion it " will be much better done by some rule of practice " to regulate all cases in future, than by my taking " upon myself, in the first instance in which it occurs "in experience, to decline the duty of hearing and " considering the case." However, notwithstanding the force of these observa- tions, the practice seems now to be settled that, the suitor may, as of course, have his cause re-heard before Digitized by Microsoft® 92 LECTURE III. the original judge, and then claim a re-hearing before the Court of Appeal (a). But the right of re-hearing may be intercepted by enrolment of the decree, which is a merely formal pro- ceeding, amounting in substance to the deposit amongst the records of the court of a parchment copy of the decree, signed by the Lord Chancellor, or, if the decree be a decree of the Master of the Eolls, then by both the Master of the EoUs and the Lord Chancellor. This is a step which may be taken by any party to the suit, whether plaintiff or defendant, successful or unsuc- cessful. After this enrolment, no re-hearing can be obtained. The only remedy is by appeal to the House of Lords (b). Now assume that in our imaginary suit the plaintiff's biU has been dismissed. If he wishes to go straight to the House of Lords, without passing through the intermediate stage of an appeal to the Chancellor or Lords Justices, he procures the decree to be enrolled, and presents his petition of appeal to the House. If, on the other hand, he intends to appeal to the Chan- cellor or Lords Justices, and is anxious to avoid the expense of being driven to the House of Lords, his solicitor takes care to enter a " caveat " against the enrolment of the decree by the defendant. And here let me observe, that the power which an (a) Maybery v. Brooking, 2 Jur. N.S. 76 ; s. c. 7 De Gex, Macn. & Gor. 673. (6) The special proceeding by bill of review, founded either upon error of law appearing on the face of the decree itself, or upon new matter dis- covered after decree and which could not possibly be read when the decree was made, ought to be excepted to make this statement literaUy correct. Digitized by Microsoft® LECTURE III. 93 unsuccessful plaintiff has of carrj'ing his appeal to the House of Lords direct, is one which, in the present state of House of Lords' business, may be most vexatiously used. Thus, a plaintiff files a bill, for specific perform- ance, alleging himself to be purchaser. His bill is dis- missed. He enrols his decree, and presents a petition of appeal to the House of Lords. The defendant is thus incapacitated from selling his property for about two years, the time required for the appeal to come on in its turn. The appeal comes on at the end of the two years, the appellant does not even appear, and the appeal is simply dismissed. This case has, to my own knowledge, actually occurred in practice (a) ; and the hardship is increased by the circumstance, that instead of substantial security to ensure costs being required, as in the case of wiits of error from the common law courts, the appellant, in an appeal from the Court of Chancery, simply enters into his own recognisance, which may be worth nothing (6). (a) Tie case referred to was Honeyman v. Marryat, reported at the Kolls, 21 Beavan, 15 ; and in the House of Lords, 4 Jurist, N.S. 23. The property respecting which the litigation arose consisted of a mansion- house and grounds in the neighbourhood of London, containing in the whole about eighty-seven acres. The house was unfurnished, and there- fore the property could not be made productive by letting from year to year or for the summer season ; and pending the appeal, a lease, even if not objectionable on other grounds, would have been out of the question. The sale of the grass crops barely covered the outgoings, and defendant, though he ultimately obtained a better price for his property, in substance lost two years' income. Tet a consultation, with the object of considering the expediency of a special application to the House to advance the appeal, only produced a joint opinion of counsel that the attempt would be hopeless. (5) In the case referred to in the last note, no costs of the appeal to the House were recovered from the appellant. Digitized by Microsoft® 94 LECTUEE III. But suppose our cause taken to the House of Lords by the plaintiff. Frequently, a simple reversal or affirmance wiU dispose of the case. Thus, a simple affirmance of the decree, which we have supposed to have been made, dismissing the plaintiff's bill, would admit of no further action on the part of either plain- tiff or defendant. But suppose the House should think that the deed ought to be set aside on the terms of the plaintiff repaying to the defendant, with interest, certain sums received from him. The House would, under these circumstances, make an order embodying its views, and remit the suit to the Court of Chancery, to do what ought to be done in pursuance of the order. The plaintiff would then apply to the Court of Chancery, that the order of the House of Lords might be made an order of the court, and a formal order to that effect would be made by the Chancery judge (a). Thereupon, the necessary accounts would be taken before the chief clerk, and the order would be carried out, on further consideration, in the usual way. And now, my htigious suit being ended, let me take up my suit of the administrative class, viz., a bill for the administration of a testator's estate. This will be far more rapidly disposed of in its earlier stages. The only points for litigation are probably some doubtful clauses in the will. A short bill, bringing so many of the parties interested in the testator's estate before the court as the plaintiff's equity draughtsman thinks (a) See Man v. Ricketts, 3 De Gex & Smale, 446. Digitized by Microsoft® LECTURE III. 95 sufficient to represent the different interests, is pre- pared, printed, and filed. Frequently no answers are needed. The plaintiff gives notice that he intends to move for a decree in the terms of the prayer of the bill (a), and refers, at the foot of his notice of motion, to the affidavits filed in support, which are probably only a few formal affidavits echoiag the statements in the bill. The cause is brought on as short with others of the same class, a step which practical gives it precedence over suits of the litigious class. In order to obtain this benefit, a certificate from counsel, stating that in his opinion the cause is fit to be heard as short, is required before the cause is put on the list of short causes. Previously to the hearing, minutes of the proposed decree are pre- pared by the plaintiff's counsel, and submitted to the junior counsel concerned for the different defendants. The cause then comes on on some short cause day. The senior counsel for the plaintiff states the material contents of the will, and reads the proposed minutes to the court, which are occasionally varied at the sug- gestion of the judge ; and in ten minutes, or there- abouts, the materials of the decree have received the sanction of the court. The decree is mainly the decree of the counsel concerned in the cause, who arrange amongst themselves what accounts and inquiries are requisite for the purpose of eliciting the information necessary to guide the court in its ultimate administra- tion of the property. After decree the cause goes into (a) See orders 22 — 27 of August 7, 1852, as to practice on motions for decree. Now consol. order xxxiii, rules i — 9. Digitized by Microsoft® 96 LECTURE III. chambers (formerly it used to go into the Master's office), and then the accounts and inquiries directed by the decree are entered into and prosecuted. Thus the amount o£ the debts, legacies, and testamentary ex- penses is ascertained, accounts are taken of the real and personal estates, and, after an interval of say some six to twelve months or so in a simple case, the cause may be fit to be heard on further consideration (a). Then the court, deriving its facts from the certificate of the chief clerk, proceeds to give directions for winding up, so far as it can, the testator's affairs. The personal estate is ordered to be realized and invested in consols (6), and directions for the sale of the real es- tate, or if it is to be preserved in specie, directions respectiug the management and mode of dealing with the rents, are inserted in the order of the court, called the order on further consideration. At this stage again, frequently, clauses of doubtful meaning in the testator's will have a construction put upon them by the court. Finally, supposing the testator's wiU to contain contiauing trusts, such as a life estate, or life estates, directions are given for applying the income in accordance either with the apparent meaning of the (a) See for a fuller sketch of proceedings subsequent to Hecree and down to the final order, Mr. Barber's Statement, Appendix, pp. xxx— r XXXV. (6) Cash under the control of the plaintiff may now (see Order of Feb. 1, 1861) be iuTcsted not only in Three per Cent. Consols, Three per Cent. Reduced, and New Three per Cent. Annuities, but also in "Bank Stock, East India Stock, Exchequer Bills, and 21. 10s. per Cent. "Annuities, and upon mortgage of freehold and copyhold estates in ' ' England and Wales. '' Digitized by Microsoft® LECTURE III. 97 will, or, in cases of doubt, with the true construction of it as ascertained by the court. Gentlemen, mj time draws to a close. To say any- thing usefully in a single lecture upon a subject which iu Mr. Darnell's book on Chancery practice occupies some 1,500 pages, (a) is not easy. Some of you, perhaps, may have heard this evening not much more than you already knew («). But in my subsequent lectures I must have assumed some general knowledge on the subject of procedure ; and I thought it fair, for the sake of beginners, to allot one lecture to this subject. To have devoted more time would have seriously crippled my opportunities for handling the subject of jurispru- dence ; and I could not but remember that, while equity jurisprudence must ever be a part of the educa- tion of every well-informed lawyer, whether barrister or solicitor, equity procedure must be of comparatively small importance to those of my hearers whose " habitat " is not to be the metropolis. In my next lecture, then, I shall resume the subject of equity jurisprudence, treating more particularly of those cases in which the equity courts exercise an exclusive jurisdiction. (a) The student -will find the meagreness of the aboye general sketch now compensated by the fuller iiLforniatlon contained in "Mr. Barber's Statement," reprinted in the Appendix, with the addition of notes and references. Digitized by Microsoft® LECTUEE IV The task to be performed, or at least attempted, by me in tbis lecture, is to give a " brief review of those beads of equity jurisprudence, in wbicb 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. Thus, take " specific performance." 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 juris- diction in equity. On the other hand, however, it is Digitized by Microsoft® LECTURE IV. 99 perfectlj' clear, that where a contract has been entered into of a class conferring a right to specific performance in equitj', 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 applied. 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 exclusively its own ; which, in certain cases, is the only satisfactory 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, either 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 aU-suf&cient. 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 and not a subsisting contract, retaining the deposit as forfeited, and suing at law, if need be, for any damages which 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. H 2 Digitized by Microsoft® 100 LECTURE IV. It is, perhaps, of no very great importance whether we treat specific pei-formance and analogous heads of equity jurisdiction as falling within the exclusive or the concurrent jurisdiction of the court, provided our conceptions respecting them he really accurate; hut 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 will he treated of under that title. Excluding, then, the heads of jurisdiction adverted to, the instances in which courts of equity exercise an exclusive jurisdiction, strictly speaking, will he found to fall generally within one of the two following branches : — First — where the courts of equity recognise some right 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. Under the first of these branches, we may range the following four subdivisions : — 1. Trusts generally. 2. Administration of estates of testators and intes- tates. 3. The equitable jurisdiction in reference to the pro- perty of married women. Digitized by Microsoft® LECTURE IV. 101 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 in 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 already pointed out or alluded to more than once {a). 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 importance of a historical treatment of equity jmis- 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 will 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 (a) See pages 30, 71, &o., supra. Digitized by Microsoft® 102 LECTURE IV. operandi, in reference to land, was to execute a feoff- ment 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 officials, 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 in which the word was originally used. We shall find, however, the clearest evidence that a mere confidence 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 pur- pose. The cases 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. (a) Third edition, pageB 167, 168. Foui-th edition, pages 100, 101. Fifth edition, pages 104, 105. Digitized by Microsoft® LECTURE IV. 103 Thus, in Parsons v. Baker (a), 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 Macnab V. Whitbread {b), where the gift was to a person, in the full assurance and confident hope that he would make a particular disposition, the present Master of the Eolls expressed his opinion that the words used would have been sufficient to constitute a trust, though for other 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. In truth, to exclude the creation of a trust, where sub- ject and objects are alike 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 (c). In reference to the first causes of the introduction of (o) 18 Vesey, 476. (6) 17BeaT. 299. (c) The case of Huskisson v. Bridge, 4 De Gex & Smale, 245 (in which a testator, after bequeathing hia residuary estate to his wife, and expressing 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), will be found to afford 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 Beav. 301. Digitized by Microsoft® 104 LECTURE IV. uses and trusts, you are probably aware that the origin of uses is commonly ascribed to the endearours 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 religious 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 all events, contains clear evidence that feof&nents 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 religious people, of lands, were directed to amortise the said lands {i. e. to convey them in mortmain), with the licence of the king, and of the lords of the fee, within a given time, or to convey them away to some other use ; and similar pm'chases to uses were made void for the future. But although the origin of uses may have been 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 ac- quired 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. Digitized by Microsoft® LECTURE IV. 105 TMrdly. The cestui que tise 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 wlU. There was in some Boroughs 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 to provide for two sons, or his eldest son might be a spendthrift, or worse ; still, so long as the legal interest remaiaed in himself, he had no means of preventing his property from passing at his death to his natural heir. But the court 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 hj 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, deUvered seisin to the feoffee, by handing to him a clod, a piece of turf, or a twig, with words showing that the dehvery so made was symboKcal of the delivery of the whole property. But where the land had been conveyed (ffl) See 32 Henry VIII. cap. 1 ; and 31 Henry VIII. cap. 5. Digitized by Microsoft® 106 LECTURE IV. to uses, the cestui que use might deal with the beneficial interest by an entirely secret deed or instrument, with- out 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 dealing 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 Henry 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 Kable to be forfeited, or to escheat iq the event of the attainder of the feoffee to uses. The natural result was, that in troublous times, like those of the last Edward and Henry VII., men who took an active part in political movements naturally vested their lands in feoifees of their own selection, known from their cha- racter to be little likely to expose the property to for- feiture or escheat. Thirdly, by putting the land in use, the burdens of the feudal law were evaded. You wUl find a most able exposition of the nature and character of these burdens in Sir W. Blackstone's Commentaries (a). It will be sufiicient for my purpose if I remind you merely of wardship and marriage. The former feudal incident entitled the lord, where a tenant holding by knight's (d) Book II., chapter r, Digitized by Microsoft® LECTURE IV. 107 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 vchole rents and profits during minority. The latter incident allowed the lord to sell the right of marrj-ing 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, Jie was heavily mulcted. Desire of escape from the hardships of feudal tenure would seem almost alone to have been a sufficient reason for resorting to the practices of uses. Fourthly, where a debtor was legally entitled, the 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 estabHshment of the sj^stem 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 hable to curtesy or dower. Whether the rights of the cestui que use were enforceable against the original feoffee only, or also against those deriving legal title under Digitized by Microsoft® 108 LECTURE IV. him, was a point upon which different views were lield at different periods of the history of uses, there heing a gradual tendency in advanciag ages towards more liheral 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 feoffee to uses died or aliened, the cestui que use had no remedy against the heir or the alienee. Thus, in a case reported ia the Yea* Book, 8 Edward IV. folio 6, after a considerable discussion, whether a subpoena would lie against one only of several executors separately (the com't held it would not), the case proceeds thus : — " Et fuit move si " subpoena gist vers executor ou envers un heir. Et " Choke dit que il sua auterfoits subpoena vers le heir " de son feoffee et le mater fuit longmt debate. Et " I'opinion de la Chancerie et les justices que il ne gist "pas enys 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 Ion store pur disputer apres quant les auters " veignt (a)." It is stated in Bacon's Abridgment (&), 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), (a) See the 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. Digitized by Microsoft® LECTURE IV. 109 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 {a). The use being then such as it has been described to you, and the inducements to put land in use such as have been poiuted out, the result was a large and gradually increasing quantity of land held in use ; and the effects of the system have been thus graphically described iu 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, reKef, heript, and escheat; the cre- " ditor of his extent for debt ; the poor tenant of his "lease (&)." It was not to be expected that this state of things should be quietly submitted to. Accordingly, onrefer- (o) Part of the reasoning of Fitzherbert for holding the alienee of the feoffee 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 aver "a Iny et ses heirs et assigns ; or mon trust et confidence est in lui in " ses heirs et assigns ; et ceo est pr.ove bien, oar les heirs seront liez de "performer 1' volonte le feoffer si bien come son pere, et issint le second " fefiee si bien come le premier, si ne soit consideration, et issint est si " les feffees souffrent un reoovere sans consideration : car sera entend par "Ley en tant or que sans consideration ildeparte over terre in que il fuit " sdii aV me, qu'il departe ove ceo in le plus due forme il peut, s. come il " ceo avoit adevant. Carom un act rest in eniendm^nt et indifferent la " Ley adjugera le mieux : car si jeo voy un Prestre et wne feme insembli " luspeceoneusement, v/ncore si longement que il est in douit que U fait "bien on mal, covieni entender le melieur." (i) The Use of the Law, Bacon's Works. Edition by E. Montagu, vol. xiii. p. 240. Digitized by Microsoft® 110 LECTURE IV. ence to the Statute Book, we find a continual straggle going on against the system, or rather against its injurious results, which have just heen mentioned. The efforts of the Crown and Legislature appear, m the first instance, to have been directed towards fixing the cestui que use with aU the liabilities of the legal ownership. Thus, various statutes were passed in the reigns of Edward III., Eichard II., and Henry VII. (a), rendering the use liable to be extended ; and in the first year of the reign of Eichard III. the cestui que use was empowered to alien the land as against his feoffee (6). 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 (c) ; and by an act of the reign of Henry VIII. the use was made forfeitable for treason (d). But these efforts, though, as the event proved, they were made in the right direction, were insufficient to (a) 50 Edward III. cap. 6 ; 2 Eichard II. stat. 2, cap. 3 ; 19 Henry VII. cap. 15. (All repealed by the Statute Law Kevision Act, 1863, as having become obsolete or unnecessary.) (b) 1 Eichard III. cap. 1. (Eepealed by the Statute Law Eevision Act, 1863.) , (c) The epitome of this statute, 4 Henry VII. cap. 17, given in Ruff- head's edition, contains no allusion to this reservation of the testamentary right. In the Edition of Statutes published by the Eecord Commission, the Act is given at length, and the right of wardship is conferred only in the case of "no will by him declared nor made in his lyfe touching the premisses or any of Iheym." (The statute was repealed by the Statute Law Revision Act, 1863.) (d) 26 Henry VIII. cap. 13, s. 5. (Now repealed by the Statute Law Revision Act, 1863, leaving, however, the 33 Henry VIII. cap. 20, s. 2, in force.) Digitized by Microsoft® LECTURE IV. Ill 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 (a). 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 and his heirs ; 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 creatiag through the medium of it a variety of legal estates unknown 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 pg.rtly 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 hberal and more satisfactory footing than the old use. Thus the trust descended Hke the legal interest, and was alienable, though, by a wise provision of the Statute of Frauds (6), not without writing. The heir or alienee might sue for its performance. It was sub- (o) 27 Henry VIII. cap. 10. (6) 29 Car. 11. cap. 3, s. 9. Digitized by Microsoft® 112 LECTURE IV. ject to curtesy; and, by the Statute of Frauds, was made liable to execution (a). 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 became legally entitled to dower, and the husband of the female trustee, in respect of his legal estate by the curtesy, were held bound to perform the trust. The only anomaly of importance was the exception lately removed (6), viz. : — that the equitable estate conferred no right of dower on the wife of the equitable ovraier. 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 under the general head of Trust, so far at least as it is really exclusive ; but it is more convenient to treat it separatel}'. Administration suits maybe said to be of three kinds: First. Creditors' suits. Secondly. Legatees' suits. Thirdly. Suits by parties interested in the residuary 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- (a) 29 Car. II. cap. 3. (6) i.e. by the Dower Act of 1833, 3 & 4 WiU. IV. cap. 105. Digitized by Microsoft® LECTURE IV. 113 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 courts of equity held to be assets, but courts of law did not ; and except when the creditor comes to the court of equity on the footing of a cestui que trust, his rights in equity are no higher than at law. The frame of his bill is for payment of his debt, if the defendant, the executor or trustee, admits assets ; if n'ot, then for an 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, the creditor gets what he is entitled to, and no administration takes place. Practically, however, this is a case of rare occurrence. The executor does not admit assets. The creditor establishes his debt at the hearing, the ac- counts are taken, and, if the assets be sufficient, the creditors are paid in fuU : if insufficient, they are paid rateably, having regard to their priorities {a). The sur- plus, if any, is administered according to the rights of the parties who come next after the creditors ; and thus, practically, the creditor's suit is a suit for ad- ministration. It is not easy to trace when the right of the creditor to file a bin in equity was first clearly established. The earHest 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 (a) By 32 & 33 Vict. cap. 46, specialty and simple contract debts o£ persons dying after Jan. 1st, 1870, stand in equal degree. I Digitized by Microsoft® 114 LECTURE IV. Introduction to the "Proceedings in Chancery," abeady frequently referred to. The plaintiffs were the executors of one Vavasour ; the defendants, the executors of the Bishop of Lincoln. The bUl alleges that the testator, without any writing or specialty, of very trust, lent a thousand marks to the Bishop of Lincoln; and that the plaintiffs had no remedy by the common law (a). Another early case, though of far more recent date, is to be found in Gary's Eeports (6). There the tes- tator mortgaged his copyhold, and then devised the equity of redemption to be sold for payment of debts. The bUl was, in substance, a suit for redemption and payment out of the proceeds of sale of the copyhold. At a later time, though when exactly it is dif&cult 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 Ecclesiastical Court. Thus, in the little book by Tothill, called " Trans- actions of the High Court of Chancery," consisting, for the most part, of brief notes of decided cases, we (a) See Calendars of Proceedings in Chancery, vol. i. xciii. (6) Page 9, edition 1820. Digitized by Microsoft® LECTURE IV. 115 find the following decision noted. " Piggot contra " Parson: " (4-i Eliz.) " Because the ground of the " hiU is for a legacy thought fit to be dismissed (a)." On the other hand, in the same book, under the head " Legacy," various cases are referred to, in which the jurisdiction appears to have been exercised, and one of them (h) 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 Com-ts. The latter, being a mere jurisdiction to decree payment 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 Court was for all useful pm'poses 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 his legacy, were those in which he did so strictly in the character of cestui que trust, as where real (o) Tothill, p. 19, (6; Telvertoa contra Newport, 86 Elisi, I 3 Digitized by Microsoft® 116 LECTURE rV. estate had been devised for payment of debts and legacies. Subsequently, we find cases in which the executor, being sued m the Ecclesiastical Court, filed his bill in the Court of Chancery, asking to be indemnified against payment. Horrell v. Waldrup, decided ia 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, unable (a) The following is tUe material portion of the Report : " 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 de- ' ' murred, because the conusance of legacies belongs to the Ecclesiastical " Court, and they will 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 will 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 will give " interest for a legacy, which that court doth not, and the plaintiff hath " an election to sue here or there." (See 2 Freeman, .83.) Digitized by Microsoft® ■LECTTJEE IV. 117 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 pecuniary legatee is entitled to paj'ment, 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 pecuniary 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 paj'ment of the testator's debts and legacies, the net residue ascertained, and the plaintiff's share paid to him, or, if the plaintiff be under disabihty (say an infant), secured for his benefit. Finally, I would observe, that in each of these three kinds of suit, the jurisdiction exercised, so far as it amounts to administration, is really exclusive. It is in a com-t of equity alone that the executor's accounts can be taken, 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® 118 LECTURE IV. To proceed to my 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, 1 shall say a few words presently, when I reach my second main branch of exclusive jurisdiction. For the present, I limit myself exclusively to the ques- tion of 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 of 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 law (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 disability 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 her) giving her personal assurance that the alienation (a) i e., law as distinguished from equity. Digitized by Microsoft® LECTURE IV. 119 is of her own free will. Thus stands the matter at law (a). In equitj' the privilege and protective dis- ahUities of the wife are more extended. (a) The legal position of married women has been materially modified by the " Married Women's Property Act, 1870," 33 & 34 Yict. cap. 93, of which the following is an abstract. § 1. The earnings of married women are to be deemed property held to their separate nse. § 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, § i. The same as to shares, debentures, or stock in joint stock companies, to the holding of which no liability attaches. § 5. The same as to interests in friendly, benefit, and other similar societies. § 7. Personal property coming to a womau married after the passing of this Act, during her marriage, as next of kin, and any sum not exceeding 200Z. 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 proTisions for the decision of questions of ownership as between husband and wife. § 10. Enables a married woman to effect policy of assurance on her own or her husband's life for her separate use, and contains other provisions as to policies. § 11, is as follows : " A married woman may maintain an action "in her own name for the recovery of any wages, " earnings, money, and property by this Act declared "to be 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 Digitized by Microsoft® 120 LECTURE IV. They are mainly three : — 1. The capacity of the wife to hold property as a feme sole ; to have a separate estate, in fact. 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. The first of these three heads, viz., the wife's sepa- rate estate, has been selected for particular considera- " 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 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 unman-ied." § 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 chief novelty is to be found in the 11th section, which may be considered as giving 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 (without a next friend), and that without sufficiently providing for the costs of defendants against whom ill-founded claims may be brought. In a recent suit in equity by a married woman (without a next friend) against execution creditors and the sheriff, the Court required themarried woman to give, as the price of an injunction, a charge on her separate estate to secure costs. Digitized by Microsoft® LECTURE rv. 121 tion in my seventli lecture. For the present, therefore, I shall onlj' say that in a court of equity a married woman may, in reference to property, be placed m the position of a feme sole. I pass, then, to the wife's equity to a settlement. "Where a husband becomes entitled, ia 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 wUl 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 equity be in any way called into action, the court allows the husband to receive the property, subject only to what 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 iuto all the circumstances con- nected with the marriage {e.g., whether the husband has made a settlement on his wife ; how much of her property he has already received : what is his pecu- niary position ; whether the husband 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 be paid to the husband, (a) The law is now (by section 7 of the recent Act) altered as to women married after August 9, 1870, except where property exceeding 2001. 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® 122 LECTUEE IV. 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 occur, that it originated in those cases where the executor or trustee, declining to pay to the hus- band, the latter filed his bill in Chancery. Thereupon the court said, " You, the husband, who seek equity, " must do equit}' ; and we wiU not decree payment of " any part to you except upon the terms of your " settUng upon your wife and her children, if she so " desire, a fair share of the property acquired by j'ou " through her." It is, however, certain that the wife's right is, at the l^resent day, far more extensive than the suggested historical origin would logically warrant. Thus, it maj' extend to the ivhole fund (6), 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 bin (c), or by petition {d). (a) The cases are too numerous for detailed reference. Amongst the more instructive are Gardner v. Marshall, 14 Simons, 575 ; Vaughan u. Buck, 1 Simons, N.S. 284 ; Bagshaw v. "Winter, 5 De Gex & Smale, 466; Dunkley v. Dunkley, 2 De Gex, Maon. & Gor. 390. (6) Dunkley v. Dunkley, 2 De Gex, Maon. & Gor. 390 ; and numerous other cases ; collected, Lewin on Trusts, 4th edition, p. 482, note (e), 6th edition, p. 530, note (h). (c) See Lady Elibank v. Montolieu, 5 Vesey, 737 ; Dimoombe v. Green - acre, 28 Beavan, 472 ; 2 De Gex, Fisher, & Jones, 509. (d) See Greedy v. Lavender, 13 Beavan, 62 ; also Scott v. Spashett, 3 Maon. & Gor. 599. Digitized by Microsoft® LECTURE IV. 123 Next, as regards the wife's right of survivorship in equitable interests. Here, in the main, equity follows the law. If the husband can contrive to reduce the 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 survivor- ship cannot, so long as the interest remains rever- sionary, be barred. In other words, the wife's re- versionary equitable interest is, save where the statute applies, inalienable as against her right by survivor- ship. 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 fi.nall}'' by the great case of Purdew v. Jackson (b), a period of continued attempts to evade the effects of the doctrine followed. Thus, where the wife's interest was I'ever- 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 possession. It may be said, briefly, that aU devices of this description received their deathblow by the decision in Whittle v. Henning (c). Whether the inconvenience created by the joint operation of Purdew y. Jackson and of this decision, in rendering certain descriptions of property practically (a) The Session of 1857. (J) 1 Russell, 1. (c) 2 PUlips, 731. Digitized by Microsoft® 12i LECTURE IV. inalienable, did or did not outweigh the advantage of securing to the wife one species, at least, of possession which the husband, to adopt an expressive phrase, could not even beat out of her, has been much de- bated. The Legislature has, however, lately decided in favour of freeing this description of property from the fetters thus imposed upon its alienation. In the last session of Parliament an Act (a) was passed enabling married women to dispose of their rever- sionary interests in personal estate. The provisions of this Act are shortly as follows : — By section 1, married women may by deed dispose of reversionary interests in personal estate acquired under any instrument made after the 31st day of De- cember, 1857. By section 2, it is provided that the deed to be exe- cuted by the married woman shall be acknowledged by her in the mode prescribed hj the Act for the Abohtion 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 (a) 20 & 21 Yict. cap. 57 ; known as Malins' Act. Digitized by Microsoft® LECTURE IV. 125 me warn you against confounding the two questions, of the wife's right hy survivorship and the wife's equity to a settlement. It is by no means uncommon to find considerable confusion of ideas in this respect. The wife's equity to a settlement arises only when the fund is ready to be reduced into possession. It may be waived by the wife. This, where the fund is within the control of the cotirt, is commonly done by the wife attending before the judge in open court, when she steps up to the bench, the judge satisfies himself, by a few words of conversation, that the wife understands what is about to be done, and is wiUing that her husband should have the fund, and thereupon, as the phrase iS, " takes her consent " (a). If the wife cannot attend in court, her consent may be taken by commission; and I may observe, that in reference to interests acquired under instruments made after the 31st of December, 1857, the wife may, by deed acknowledged, release her equity to a settlement. On the other hand, the right by survivorship is one of which, except so far as the Act of 1857 apphes, the wife (a) When the fund to be dealt with is under 2001., the court was in the habit of paying the fund to the husband, ■without requiring the consent of the wife to be eTidenced in this formal manner. The selec- tion of 2001. 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 — Ke Kincaid, 1 Drewry, 326. Digitized by Microsoft® 126 LECTUKE IV. cannot deprive herself by any act during the coverture; and any device by the husband for the purpose of acce- lerating the period of possession is, as 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 lectm-e (6). In a mortgage, the estate is conveyed to the mort- gagee, subject to a proviso for reconveyance upon pay- ment of a sum of money on a day named. The money is not paid. At law the mortgagor has then no longer any right. In equity, however, it is held he has stiU 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 (a) See now the Married Women's Propertj Act, 1870, of which a summary is given at pages 119, 120, ante. (S) Pp. 21—23, supra. Digitized by Microsoft® LECTtTRE IV. 127 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 pimctually within a certain time after the day stipulated. It is not paid. The lessor proceeds to eject the lessee. The latter files his bill, tendering the rent, interest, and costs, and the court relieves the lessee on those terms. In my first lecture I pointed out to you the great dif- ficulty of justifying logically the exercise of this head of jurisdiction, in its origin {a). The tendency of later times, however, has been to incorporate into the com- mon laiv, either by statute or decision, the equitable doctrines 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. (b), made a subject of common law jm^isdiction. By this Act, when an action by mortgagee against mortgagor is pending at common law, either for recovery of the mortgage-money or for ejectment, the mortgagor may bring his principal and interest into court, and the common law court has power to compel a re-conveyance ; and thus, under this Act, the common law courts may, and occasionally do, in substance decree a redemption. I cannot say that the statute is often called into opera- tion. It only applies, in truth, where nothing is to be done but to compute the principal and interest due. I (a) p. 22, supra, (J) 7 George II. cap. 20. Digitized by Microsoft® 128 LECTURE IV. kave, however, in practice known one instance of its being resorted to (a). Again, as respects penalties, the statute 8 & 9 Williani III., c. 11, providing, in the case of bonds given for securing the due performance of covenants, a special machinery for ascertaining the damage actually sustained by reason of any breach or breaches, and for allowing the judgment for the amount of the penalty of the bond to remain as security against any future breach, is well known. So is the provision in the 4th & 5th Anne, c. 16 (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 iu their own decisions the equitable doctrines on this head, is extremely remarkable. I refer to the class of decisions estabhshing the' distinction between penalty and liquidated damages, of which Kemble v. Farren (c), may be regarded as the leading case. Thus, where the parties to a contract agree, that in the event of a breach of some or one of its stipulations, the party guilty of such breach shall pay to the other a given sum, the court looks at the . (a) See, as to the kind of notice requisite to oust the statutory jurisdic- tion, Doe V. Loucli, 14 Jurist, 853 ; and see, too, ss. 219, 220, of the Commoa Law Procedure Act, 1852 ; the object of which enactments pro- bably was to obviate any questions respecting the applicability of the 7th George II. to the new action of ejectment. (l) Sect. 13. (c) 6 Bingham, 141. Digitized by Microsoft® LECTURE IV. 129 whole agreement for the purpose of ascertaining whether the fixed sum appears to be intended as a penalty, or as fixed or liquidated damages. If the former, then the plaintiff may, in respect of the breach, recover only the damages actually sustained by him, as- assessed by the jm-y. 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, £1,000, should be liquidated and ascertained damages, and not a penalty or penal sum or in the nature thereof; and yet the court, looking at aU the circumstances of the agreement, held the sum named to be a penalty (a). 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 jmisdiction in reference to this last subdivision of our subject, have appeared to me too limited in extent to form any substantial objection to including " mortgages, penalties, and for- feitures" amongst the heads of "exclusive jurisdic- tion." My first main branch of exclusive jurisdiction is now ended ; and I proceed to the second, which embraces those cases in which a g'Masi-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. (a) The whole law on the point will be found well collected in Chitty on Contracts not under Seal, chapter vi. Digitized by Microsoft® K 130 LECTURE IV. As respects married women, it is difficult to say that courts of equity exercise any jurisdiction of a strictly protective character over them. There exists, no doubt, a jurisdiction under which, upon the wife suing out what is called a writ of supplicavit, the Court of Chan- cery may afford her the same kind of relief as would be afforded in a common law court, upon her exhibit- iag "Articles of the Peace" against her husband. But this jurisdiction, now practically obsolete, is not con- fined to married women, but may be exercised in favour of any person, " sui juris" or not. Again, in reference to those personal rights of the married woman against her husband, which flow more particularly from the marriage contract ; the remedy of the wife has hitherto always lain in the Ecclesiastical Court, and will, upon the Divorce and Marriage Act of last session (a) coming into operation, lie in the " Court for Divorce and Matri- monial Causes." Eespecting lunatics, I abstain from saying anything now, as the jurisdiction in lunacy is of a special nature, and wUl receive a separate consideration (6). The protective jurisdiction of the court over infants alone remains. How far this jurisdiction was or was not legitimately assumed by the chancellor, has been hotly debated. Mr. Hargrave, in his well-known note to Coke Littleton (c), under the head " guardian by the appointment of the chancellor," maintained strenuously that the jurisdiction (a) 20 & 21 Vict. cap. 85. (b) The course embraced one lecture on lunacy, which is excluded from this series, for reasons of little interest to the reader. (c) 88 b. note 70. Digitized by Microsoft® LECTURE IV. 131 was simply usurped. Mr. Fonblanque, on the other hand, in a note of ahnost equal celebrity appended to the " Treatise on Equity (a)," 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 " pare7is patrim." The controversy is, how- 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 iDrotective 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 tlie jurisdiction, though, without property, it cannot usefully be called into exercise. The remarks of Lord Eldon on this point, in the great case relating to the custody of Mr. Long Wellesley's children (b), re- ported at the original hearing before him, should be read with the greatest care. Secondly, where the property was small, the court was in the habit of exercising its jurisdiction to appoint a guardian, and direct maintenance upon petition, without bni filed; and this jurisdiction it now, under the new practice, exercises at chambers, upon summons (e). (a) Book II. part ii. ch. ii. s. 1, note (a). (b) Wellesley v. Dnke of Beaufort, 2 Russell, 1 ; see pp. 20, 21. It is a common practice, when it is desired to make an infant a ward of court, to TOst some small sum, say 1001., 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 Gumey v. Q-umey, 1 Hemming & Miller, 419, 420. (c) See Mr. Barber's Statement, Appendix, p. xxxix. Digitized by Microsoft® ^ 2 132 I-ECTXTEE IV. Thirdly, the power of the court was paramount even to that of the father ; the court taking upon itself to deprive even the father of the custody of his child, whenever the father's conduct rendered it desirable for the best interests of the infant that that step should be taken. This was the great point decided in the case of Mr. Long Wellesley's children. The obser- vations of Lord Eedesdale in this case, when on appeal before the House of Lords, cannot be too carefully studied (a). Fourthly, the power of the court being paramount to even that of the father, a fortiori it is so to that of all guardians, including testamentary guardians, appointed b}' the father's will under the statute of Charles II. (6). With these extremely meagre observations on a subject wliich, 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. Since then,- by 2 & 3 Vict. cap. 64, commonly referred to as Talfourd's Act, the Court of Chancery, upon the petition of the mother, may make in her favour an order for access to her infant child, and if the child be under seven years old, may commit the custody to her until that age. (J) i.e., 12 Car. ii. cap. 2i, s. 8. Digitized by Microsoft® LECTUEE V. Ix reviewing the concurrent jurisdiction of the Court of Chancery, I propose adopting the following arrange- ment : — First, I shall submit some general observations in reference to the sources of equity jurisdiction, known as Fraud, Accident, and Mistake, pointing out how far they contribute to the concurrent jurisdiction of the court; and — Secondly, I shall touch, seriatim, upon the more im- portant heads of concurrent equity jurisdiction, which, while subsisting independently altogether of the general sources just referred to, will be found, in most cases, to owe their origin and -vitaHty to the superior efficacy of the remedy administered by the Court of Chancery. Now, as respects the first part of my task, I would observe, that any one of the three ingredients, fraud, accident, or mistake, may occur in any kind of suit ; in a suit relating to equitable interests or estates, over which the Court of Equity has exclusive jurisdiction, just as in a suit in which the interests involved are purely legal, and the jurisdiction concurrent only. In the former case, however, the jurisdiction in equity Digitized by Microsoft® 134 LECTURE V. being already established on distinct grounds, the pre- cise influence of the particular ingredient of "fraud" " accident," or " mistake," in attracting the interpo- sition of equity, is comparatively little noticeable. In the latter, where it is the very foundation of the juris- diction, its exact effect and weight can be traced and estimated. This, I conceive, is the reason why we find fraud, accident, and mistake commonly discussed under the head of concurrent jurisdiction. Now, going back to the earliest discussions respecting the interposition of equity, we find it repeatedly stated, that " covin, accident, and breach of confidence " are the proper subjects of equity jurisdiction (a) . There was a doggrel rhj-me in vogue expressing the legal views on the subject : — " Three tbings 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 hj him or by any other text writer of ancient date. Taking, then, fraud, accident, and mistake in the order mentioned, it is first to be observed that, when discussing "fraud" imder the head of concurrent equity jurisdiction, we have, in strictness, no concern with > (a) See 4 Inst. p. 84. Digitized by Microsoft® LECTURE V. 135 those cases of constructive fraud, which rest upon doc- trines 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 ivard, trustee and cestui que trust. Thus, by the Eoman 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 fiduciary position (a). So by the Code Napoleon the tutor (or guardian) is prohibited from either buying or taking a lease of his ward's property, without special authorization given by what is called the " conseil de famiUe," the family council, composed of the near relatives of the ward (b). Our own equitable rule on the subject, in reference to gifts, was, in a case frequently quoted, thus re- ferred to by Lord Eldon : " This case proves the " wisdom of the court, in saying that it is almost " impossible, in the course of the connection of " guardian and ward, attorney and client, trustee and " cestui que trust, that a transaction shall stand, pur- (a) Tutor rem pupilli emere non potest, idemque porrigendum est ad eimilia : id est, ad curatores, procuratores, et qui aliena negotia gerunt. — Digest xviii. tit. 1, 1. 34, s. 7. (J) Code Civil, 450. Digitized by Microsoft® 136 LECTURE V. " 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, in fact, falling within the old legal term " covin," and which, in the modern text-books, such as Story's Equity Jurisprudence, you will find ranged under the head of " actual fraud " (6). Now, ia these cases of actual fraud, the jurisdiction of equity was, in the main, strictly concurrent. The court of law took cognisance of the fraud, both as ground for a right of action and as a ground of defence. Thus, where money had been obtained through fraud, an action on the case lay for its recovery back ; and to any action brought upon an instrument obtained b}' fraud, a plea of fraud in obtaining 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- pelling the defendant to answer, upon oath, detailed interrogatories respecting all the alleged facts and (a) Hatch v. Hatch, 9 Vesey, 292. A3 respects the equitable rale in reference to "purchases," in cases where the relation is that of " solicitor and client," one of the most valuable judgments is that of Tice-CIhancellor ■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. WeatheriU 5 De Gex, Macn. & Gor. 301. The distinction applies d fortiori to the relations of guardian and ward, and trustee and cestui que trust. (ft) Story, E(j. Jur. vol. i. chapter vi. Digitized by Microsoft® LECTURE V. 137 cii-cumstances of the fraud, many of which facts and circumstances might be Imown 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 tliis was a species of remedy which the law courts never took upon themselves to administer. You may recollect, perhaps, my pointing out in my first lecture, that the maxim that equity acts "in personam" forms one of the distinguishing features of the equitable jurisdic- tion (6). As an offshoot of this maxim, we find the equity courts, in the early times of Henry VI. and Edward IV., compelling the actor in the fraud to restore the fruits of his fraudulent conduct. If anything further were needed to establish the superior appropriateness of the equitable jurisdiction over the legal, it would be found in the circumstance, that the Equity Court is able, in conformity with its habitual mode of action, while setting aside and undo- ing the fraudulent transaction, to quahfy the annulling (a) See this more fully treated in the next lecture, under Discovery, (h) Pp. 23, 24, supra. Digitized by Microsoft® 138 LECTtTEE V. 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 set aside the deed, it wiU do so only on the terms of repayment of the purchase money and interest. When we consider then the advantages of the Equity Court, in resj^ect — 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 may, however, be laid down. And first, it is clear that, in reference to obligations flowing out of contract. Accident, using the word in its ordinary sense, constitutes no more in equity than at law any valid excuse for the non-performance of those obligations. Thus, if I contract to build a house by a given day ; and if, after I have proceeded for some time regularly in the performance of my contract, a considerable por- tion of the materials which have been prepared for enabling me to complete the house is, by pure accident, without any default of mine (say, by a fire originating in lightning), destroyed, and that so shortly before Digitized by Microsoft® LECTURE V. 139 the time fixed for completion that it is iaipossible to replace the materials, yet this constitutes no case of accident relievable in equity. — I contracted simply to build by the time, and must abide by my con- tract. In the early history of our equity jurisprudence, a different view, doubtless, prevailed. Lord Coke illus- trates " accident " thus : " Accident, as when a servant " of an obligor, mortgagor, &c., is sent to pay the money " on the day, and he is robbed, remedy is to be had in " this court against the forfeiture." (a) We find, in the Introduction to the Calendars of Proceedings in Chancery (b), an instance ia 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 obUgee in the bond having thereupon sued him at law for the penalty, the plaintiff brought his bill for relief. The answer of the defendant in equity in sub- stance asserts that the plaintiff might, with due dili- gence, have completed his contract. The final result of the suit does not appear ; but the bill probably reflects accurately the views of the day respecting equity. However, as we stated above, no (a) 4tli Inst. p. 8i. This passage confirms the view put forward in the first lecture, p. 23, supra, that in the earliest instances of relief against penalties and forfeitures, the existence of some circumstance of accidental hardship formed a material inducement to the interference of the court, (S) Vol, L p, oxlii. Digitized by Microsoft® 140 LECTURE V. accident of a similar description would, at the present day, aiFord ground for relief ; and if we lay out of con- sideration the original influence of the ingredient acci- dent, in cases of penalties and forfeitures, the only two classes of cases in the equity jurisprudence of the pre- sent day which seem to me to be properly referable to the head Accident, are : — First. — The cases in which the equity jurisdiction is exercised in reference to lost instruments ; as where, upon a bond or negotiable instrument being lost, a court of equity will, compel payment of the amount secured, either with or without the execution of a proper instrument of indemnity against the claims of third parties, into whose hands the lost instrument may have fallen {a). And, Secondly. — The cases of equitable relief against the defective execution of powers, — a branch of equity far too subtle and intri-cate to admit of discussion on the present occasion (b). Mistake alone remains. Mistake may be said to exist in the legal sense, where a person acting upon some erroneous conviction, either of law or of fact, executes some instrument or does some act which, but for that erroneous conviction, he would not have executed or done. Now, in reference to " mistake," there is one point (a) See the new jurisdiction given to the common law courts, in cases of this kind, by 17 & 18 Viot. cap. 125, s. 87. See also, as to the distinction in reference to the jurisdiction in equity, between the "loss" and the "destruction" of a negotiable instrument, Wright v. Lord Maidstone. 1 Kay & Johnson, 701. (6) Sugden on Powers, vol. ii. chapter 10. Digitized by Microsoft® LECTURE V. 141 upon which the doctrines of the common law and of equity wiU be found agreeing in the main both with each other and with the Eoman law. It is this,: — that while mistake as to law affords no ground for relief, mistake as to fact does. Thus in the Digest, under the title " De juris et facti ignorantia," we find the law thus laid down : " Eegula 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 con- " sequent rights (6)." Of the existence of the rule, as part of our common law jurisprudence, the case of Bilbie v. Lumley (c) affords an apt instance. There, an underwriter, with knowledge of a fact which would have entitled him to dispute his liability under a poHcy of marine insurance which he had underwritten, but in ignorance of the legal rights resulting from that fact, paid the amount which he had assm^ed ; and subsequently brought an action to recover the money back. The Court of King's (a) Digest, xxii. tit. vi. 1. 9. (6) The words of the original are as follows : — "Nam si quis nesciat " decessisse eum, cujus bonorum possessio defertur : non cedit ei tempus. " Sed si sciat quidem defunctum esse cognatum, nesciat autem proximitatis " nomine, bononim possessionem sibiieleiii : aut si,&c. : cedit ei tempus, " quia injure errat." (c) 2 East, 469. Digitized by Microsoft® 142 LECTURE V. Bench held the action would not lie. Lord Ellen- borough asked plaintiEf 's counsel whether he could state any case where, if a party paid money to another volun- tarily, and with full knowledge of all the facts of the case, he could recover it back again on account of his ignorance of the law. No answer was given ; and his lordship subsequently said, "Every man must be " taken to be cognisant of the law ; otherwise, there "is no saying to what extent the ignorance might "not be carried. It would be urged in almost every " case." This short observation contains, I conceive, the true ground for the distinction between mistake of law and mistake of fact. Probably, in a very large number of transactions there is at best but an imperfect knowledge of the real state of the law ; and even where the know- ledge really 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- 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 Digitized by Microsoft® LECTURE V. l-tS apparently rested its jud^ent more or less on the mistake or ignorance of law. The oft-mentioned ease of Lansdowne v. Lansdowne {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 yoimger 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 tlie " Clerk's " Kemembrancer," and finding the law as laid down in the book to be, " that land could not ascend, but al- " ways descended," he put the best exposition he could on these somewhat ambiguous words, and decided that the younger brother was entitled. Therefore, it was agreed that the son of the elder brother and the younger brother, his uncle, should share the lands, and a bond and conveyances were executed for the purpose of carrying out the agreement. The nephew subsequently filed his bill to be relieved ; and Lord King, Chan- cellor, decreed that the bond and conveyances had been obtained by mistake and misrepresentation of the law, and ordered them to be given up to be cancelled. Lord King is reported to have said, in delivering judg- ment [h), that " That maxim of law, Ignorantia juris " non excusat, was in regard to the Public, that Ignor- " ance caimot be pleaded in Excuse of Crimes, but did " not hold in Civil Cases." This, however, is clearly not law at the present day. (a) 2 Jacob & Walker, 205 ; s. c. Moseley's Keporfs, 364. (b) Moseley's Reports, 365. Digitized by Microsoft® 144 LECTURE V. The form of the decree in Lansdowne v. Lansdowne, viz., that the deeds should he delivered up, leads me naturally to the consideration of the superior ef&cacy 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 equitahle jurisdiction a completeness vainly sought for at law. As respects the other ingredients of superiority which the equitahle jurisdiction has heen mentioned as possessing in cases of " fraud " over that at law, hoth of which exist also in cases of "mistake," we may observe, that while, on the one hand, the discovery obtainable through the medium of the equity courts only was, perhaps, of somewhat less importance in cases of " mistake ; " so, on the other hand, the power to qualify, mould, and alter, instead of 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 hus- band and wife and the survivor, in the usual form. Now, what is wanted is not to undo the settlement, but merely to alter it and make it what the parties intended it should be. The deed requires to be " reformed," as the technical phrase is; and of the entire equity Digitized by Microsoft® LECTURE V. 145 jurisdiction, derivable from the three heads oi fraud accident, and mistake, it would be difficult to name' any portion which is more beneficial, or more judici- ously exercised, than that of reforming deeds in cases of mistake. Passing from the general subjects of fraud, acci- dent, and mistake, to those heads of equity juris- diction which admit of a more definite description, in reference either to the subject-matter of the suit or the nature of the remedj', the most satisfactory approach to classification seems to me to be that which I borrow mainly from Mr. Spence's work, viz. : — First. — Cases in which, but for the interposition of equity, there would in substance be no remedy. This class will include Partnership. Secondly. — Cases in which the remedy at law was wholly inappropriate, including, — 1. Recovery of Specific Chattels. 2. Specific Performance. Thirdly. — Cases in which the remedy at law, though not positively inappropriate, was less easy and con- venient than in equity, including, — 1. Account. 2. Dower. 3. Partition. Commencing with " Partnership," let us consider the position in which partners stand in reference to legal remedies only. Under the old law, an action of account lay by one partner agaiast another. Thus, Coke, in his commentary on Littleton, says,— ^" As if L Digitized by Microsoft® 146 LECTURE V. two joynt merchants occupy their stocke goods and ' merchandizes in common to their common profit, ' one of them naming himselfe a merchant shall have ' an account against the other naming him a mer- ' chant, and shall charge him as, ' receptor denari- ' orum ipsius B ex qudcunque causd dc contractu ad ' communem utilitatem ipsorum A & B provenien' ' sicut per legem mercatoriam rationaiiUter mon- ' strare poterit.' (a)." But the remedy by action of account has long since become practically obsolete (6) ; and if we except the right of a partner, where partnership articles have been entered into under seal, of bringing an action of covenant against his co-partner for any breach of the articles, we may say without any material inaccuracy, that no right of action exists at law. It could indeed not well be otherwise. Assume that one partner receives a sum of money, which prima, facie he is bound to pay into the partnership account, or of which he ought to pay one-half to his fellow partner, and that he omits to do his duty. Then let the aggrieved partner sue the defaulter. The answer to the action is obvious, — " The rights of the partners " i7iter 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 Habilities, might (o) Coke Litt. 172. (6) A short sketch of the common law action of account will be found in Lecture VIII. Digitized by Microsoft® LECTURE V. 147 " appear to belong to himself." Where the partners have, upon a dissolution of partnership, met and ad- justed an account (that is to say, actually taken their accounts themselves), then he who appears upon the result of those accounts to be the creditor of the other, may sue for the balance appearing to be due to him : in fact, " cessante ratione cessat lex; " but otlierwise 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 partnership, order the necessary accounts to be taken, and give all directions for realising the partnership property; ad- justing, at the same time, all questions of right of trading, indemnity to be given by one partner to the other, &c. Secondly. — It will, at the instance of a partner, decree a dissolution of partnership, where the other partner has, by breach of the partnership articles or other misconduct, disentitled himself to any further continuance of the partnership ; or when, through per- manent ill-health or lunacy, he has become incapable of fulfilling his duties as partner (a). Thirdly. — It 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 (a) As to dissolution in event of lunacy of a partner, see Besoh v. Frolich, 1 Phillips, 172 ; Anonymous case, 2 Kay & Johnson, 441 ; and Leaf V. Coles, 1 De Gex, Macn. & Gor. 171. Digitized by Microsoft® ^ ^ 148 LECTURE V. 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 trover, or action of detinue. In the former case, he recovered the damages only. In the latter, the jury found the value of the chattels, and the judgment was for recovery of the chattel detained, or its value, as found by the jury, if the chattel were not returned ; with damages in either case for the detention. In fact, the wrong-doer had the option of returning the chattel or paying the value (c). But what real redress could (a) See Hall v. Hall, 3 Macn. & Gor. 79. (6) The authorities will be found collected and discussed in Fairthome r. Weston, 3 Hare, 387. (c) See the question as to the proper form of verdict learnedly discussed in Williams v. Archer, 5 Common Bench R. 318 ; and in Phillips v. Jones, 15 Queen's Bench R. 859. The Common Law Procedure Act, 18o4, Digitized by Microsoft® LECTURE V. 149 this afford wlien 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 compensate for the loss of such a relic ? Or, to imagiae an illus- tration wMch, at the present moment, will go home to the heart of each of you ; suppose that, some fifty years hence, a sword of honour, — a tribute of the pre- sent generation to him who has made the name of " Havelock" part of our history, — should be wrong- fully withheld from some grandson of that brave man. Could any damages do justice ? "Well, in cases of this sort the equity courts supplied and still supply the very remedy required. I They did so at an early though not very clearly defined date. In the time of Edward the Fourth, the question whether the court would give relief when title deeds were wrongfully detained, appears to have been stiU doubtful. We find a bill of this kind (with the answers and replications), of that monarch's reign, in the preface to the second volume of " The Calendars of Proceedings in Chancery {a) ; " but in the year-book of the 9th Edward IV. (b), an instance is mentioned 17 & 18 Vict. cap. 125, ». 78, confers a new jurisdiction to compel specific delivery of the chattels ; but the power of compulsion is by distress only, and therefore less efficacious than that in equity. (o) p. cxiv. (6) pi. 41.— Mr. Spence mentions, Eq. Jur. vol. i. 643, note (S), in- stances 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. Digitized by Microsoft® 150 LECTURE V. in -whicli the plaintiff was sent to common law, where he might have writ of detinue. In later times we find the case of Pusey y. Ptisey (a), in which the subject-matter of litigation was the very Pusey Horn of which I spoke to you just now ; and later still, in the year 1735, a case of Duke of Somerset V. Cookson ib), ia which Lord Chancellor Talbot decided that a bill would he by the plaintiff, lord of the manor, against defendant for delivery up of an old silver altar with a Greek inscription. Next, as to specific performance. Here, again, the remedy at law was damages only, and in many cases wholly inadequate. A man purchased a piece of land near his house ; on the strength of his purchase, he proceeded perhaps to arrange various alterations as respects buildings and pleasure grounds ; probably he modified even his internal family arrangements. Per- chance, he actually took possession and paid part of the purchase -money; yet, if before actual conveyance, differences arose between his vendor and himself, he was at law entirely in the power of the former. He might be ejected, and no amount of inconvenience, hardship, or mortification could entitle him at law to anything beyond damages. No country pretending to anything like a system of civilised jurisprudence could tolerate such a state of things. Accordingly, equity stepped in, and said, " These contracts must be per- " formed." , This, indeed, it did at a very early period (c). (a) 1 Vernon, 273 ; anno 1684. (J) 3 Peere Williams R. 389. (c) The second case mentioned in the preface to the 2nd vol. of the Digitized by Microsoft® LECTURE V. 151 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 ia 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 certaia 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 (a). It may be admitted perhaps that the equity courts have gone rather far in this respect, in interfering with the contracts of parties. Still, the error may well be forgiven, in consideration of the beneficial nature of the jurisdiction ; and most of the objectionable results of the general rule in reference to time are avoided by the practice of conveyancers, who, whenever settling a stipulation in respect of which time is to be essential, add the words, " and in this " respect, time shall be deemed to be of the essence of the " contract (&)." CaleBdars of Proceedings in Chancery, is a bill for specific performance (the date being Kiohard the Second's Eeign); and at page xxvi. of the same preface there is another instance. (a) 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, LawKep. 7 Ch. App. 12. (J) The late Lord Cranworth entertained strong opinions that the equity courts had gone to the utmost allowable limits in their interference with Digitized by Microsoft® 152 LECTURE V. 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 ia equity, embracing (I repeat the subdivisions) — 1. Account. 2. Dower. 3. Partition. Account has been reserved for special and more detailed consideration in my eighth lecture; and I pass therefore at once to " Dower." You know of coirrse what "Dower" was. It was the wife's right to have for her life, after her husband's death, one third part of any lands and tenements of 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 origia 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 (b). Our concern here, however, is not with the history the stipulations of contracts in regard to time : opinions which, in one case (Parkin v. Thorold, 2 Simons, N.S. 1, reported on the hearing at the Bolls, 16 Beavan, 59), 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 above alluded to, it still remains firmly established. See Boberts V. Berry, 3 De Grex, Macn. & Gor. 284, and the judgment of the Lords Justices Knight Bruce and Turner in WeUs v. Maxwell, 33 Law Journal (N.S.) Chano. ii. (a) 2 Bl. Com. 129. (6) Ibidem, Digitized by Microsoft® LECTURE V. 153 and general incidents of dower, but merely with tlie . widow's remedy for enforcing her right. The course 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 duty of the heir, or, if the heir were under age, then of his guardian, to complete (a). After as- signment the widow had a right of entry, and, after entry, 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. 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 proportion 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 which her right to dower depended. 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 (a) See at Appendix P, p. Ixxx. a precedent of assignment of dower by the heir, extracted from the "Perfect Conveyancer," printed in 1665. Digitized by Microsoft® 154 LECTURE V. precise lands. And in those cases m which the land had been conveyed away by the husband ia 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 alienee to answer on oath detailed iuterrogatories, 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 damages for withholding her dower, the right to the damages was at law lost ; whereas a court of equitj^ would decree what was due upon the result of the account to be paid either by the representative of the heir, or to the representative of the vndow. 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. Agaia, under the law as it existed previously to the recent Act for the extiaguishment of satisfied terms (b), 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- ■ (a) 2 Brown's Chancery Cases, 620. (J) 8 & 9 Vict. cap. 112. Digitized by Microsoft® LECTURE V. 155 ing, all that the widow could obtain at law was a judg- ment with a stay of execution {cesset executio) duriag 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 stUl 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 Act, the wife necessarily oame 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 dower," the only three real actions now remaining (&). In practice, however, the common law action, though not obsolete, is very rarely resorted to (c). (o) 3 & 4 WiU. IV. cap. 27. (5) But now these actions are, in effect, by 23 & 24 Vict. u. 126, s. 26, abolislied as real actions, and commence by writ of summons. (c) The only reported modern instances of resort to the common law juris- diction are, so far as I am aware, Garrard v. Tuck, 8 Common Bench R. 231 (which appears to have resulted in a compromise), Gtomm v. Parrott, 3 Common Bench Rep. N.S. 47, and Woodward v. Dowse, 10 Common Bench Rep. N.S. 722, which last case was subsequent to the 23 & 24 Vict. i>. 126. Digitized by Microsoft® 136 LECTURE V. 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 ia undivided shares. Of this class of ownership there are three kinds, viz. : — 1. Coparcenary, which arises where, upon the death of a person 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. 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 coparcener, 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 be 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, (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 Chamher, 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, notwithstanding the ohservations in the judgment of Parke B. in Exchequer Chamber, and Lord Cottenham's decision, can Digitized by Microsoft® LECTURE V. 157 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 (a), 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 suum " fregit et herbam suam, dc. conculcavit," 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 libitum." In the case of an undivided ownership of chattels personal, the legal results were and still are even more inconvenient (&). Thus, in the same section, Littleton continues in these words : " but if two be possessed of " chatteUs 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 com- mon of an elephant, and one declines either to pay any- hardly be viewed as satisfactory. Bat where a tenant in common occupies in exclusion of an infant co-tenant, he is chargeable in equity with an occupation rent ; Pascoe v. Swan, 27 Beavan, 508. (a) Sect. 323. (b) And for these inconveniences there is no remedy, equitable or legal. Digitized by Microsoft® 158 LECTURE V. thing to the other in the shape of profits of exhibition, or to buy his co-owner's share, and is at last brought to reason only by the threat of the injured party to shoot his undivided moiety (a). 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 th,e case of copar- ceners for whose benefit there lay a writ de partitione faciendd. Joint tenants and tenants in co mm on were obliged, untU the reign of Henry VIII., to bear their fetters as they best could. No doubt good sense and agreement of the parties mitigated the defect of the law (6). The absence, however, of any power of com- (a) 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 have an action of tres- ' ' passe, quare vi et armis columhare le plaintiff fregit et dwientas columbas ' ' pretii 40s. interfecit per quod volcUum columbaris sui 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, but merely sells it, is liable to his co-owner, see Mayhew v. Hemck, 7 Common Bench R. 236. And see further, Fraser v, Kershaw, 2 Kay & Johnson, 496. (6) We find mentioned in Littleton a great variety 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 Digitized by Microsoft® LECTtTEE V. 159 pelling a partition ia the case of joint-tenants, and tenants in common was by the time of Henry VIII. felt to be an evil calling for legislative interference ; and accordingly by the 31st Henry VIII. cap. 1, joint- tenants and tenants in common of estates of inherit- ance were made compellable to partition ; and by the 32nd Henry VIII. 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 William III. we find an Act of Parliament passed ex- pressly for the purpose of regulating the common law ' ' 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. (a) See form of writ stated, Coke Litt. 167 (6). (J) 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. Digitized by Microsoft® 160 LECTURE V. procedure in partition cases, yet the equity jurisdiction, wliich would seem to have been first assumed towards the end of the reign of Queen Elizabeth (a), 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 (b), the Legislature, when abolishing, with the three exceptions above adverted to (c), aU real actions, included amongst the abolished forms the writ of partition ; and thus, by Act of Parha- 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 coj^atrrewi 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 of copyhold lands. 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 payment of money for equality of partition {d). But where the whole 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- (a) See Speke v. Walrond, Tothill, 155. (J) See 3 & 4 W. IV. cap. 27, s. 36. (c) p. 155, supra. (d) See Dillon v. Coppin, 6 Beavan, 217, note (a). Digitized by Microsoft® LECTURE V. ICl cellor of England, in the case of Horncastle v. Charles- worth (a), 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 (&),by which it was enacted and declared, that it should be lawful for courts of equity to make the like decree for ascertaining the rights of the parties, and issuing a commission to make parti- tion, as by the practice of the court might be made with respect to lands of freehold tenure, The equity procedure in partition suits differed little, if at all, duriag 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 (c) 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 (rf) (a) 11 Simons, 315 ; see, too, Jope v. Morshead, 6 BeaTan, 213, (S) 4 & 5 Vict. cap. 35, a. 85. (c) Under the more recent practice the decree declares the right, and proceeds to direct that proposals for a partition he laid before the Judge at Chambers ; see Clarke v. Clayton, 2 Giffard, 333 ; and Mr. Barber's State- ment, Appendix, p. xlvii. (d) 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 M Digitized by Microsoft® 162 LECTURE V. are executed in conformity with the division made by the commissioners (a). My classified heads of eqnity are 'now exhausted ; but there remains yet one subject of equity jurispru- dence which it is impossible to range accurately withiu any one of the other classes mentioned, and which nevertheless demands some notice. I mean, Set-off. 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 habihty 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 will be entitled to recover back the next ; or, to use the words of the civil law, " Ideo " compensatio necessaria est, quia interest nostra potius under disability are interested, Bowra v. Wright, 4 De Gfex & Smale, 265. And see Shepherd v. Churchill, 25 Beavan, 21. (o) 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 : (1) authorises the Court of Chancery (upon the request of any person interested, notwithstanding dissent or disability of the others) to decree a sale in the event of special circumstances rendering a sale more beneficial than partition ; (2) directs the court, upon the request of persons beneficially interested to the extent of a moiety, so to decree, unless it sees good reason to the contrary ; and (3) authorises the court to decree a sale upon the request of any person interested, unless the other persons interested undertake to purchase the share of the person requesting. The first of these enactments is, it is believed, only in accordance with the codes of most foreign countries. The corresponding provisions of the Code Civil, Art. 827, is as follows : "&' les immeuhles ne peuvent pas se ^^ partager commodement U doit Stre procSd^ d la venfe 'par lieitation " dcnant le tribimal." Digitized by Microsoft® LECTURE V. 163 " non solvere, quam solutum repetere (a). The same doctrine exists in those systems of jurisprudence which are grounded on the Roman law (6). 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 paymentof 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 (c), of allowing a set-off in cases of mutual credit and mutual debts between the bank- rupt and any person (d). (a) Dig. XTJ. tit. ii. 1. 3. (6) See, for instance, the section on " Compensation," beginning Art. 1289 of the French " Code Civil:' (c) This statute is commonly referred to as 4 Anne, cap. 17, according to the order in which it appears in Ruffhead's Edition, ivhere nothing beyond the title is given. In the edition of statutes published by the Record Commission, where the statute is given at length, it appears as 4& 5 Anne, cap. 4. It was repealed by the Statute Law Revision Act, 1867. (d) The 39th section of the "Bankruptcy Act, 1869" (3i & 33 Vict, cap. 71), may be said to be the legitimate descendant of this first enact- ment in mitigation of the common law doctrines. M 2 Digitized by Microsoft® im LECTURE V. About a quarter of a century later, by a short and unobtrusive section, in an Act which is entitled " An " Act for the Relief of Debtors, with respect to the " imprisonment of their persons (a)," a most important alteration was effected in the law, by enacting, that, in 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 (&), that the right of set-off still exists at law. 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 respect- ing set-off, in equity, by judges of considerable autho- rity, would deprive it altogether of its position as a distinct head of concurrent equity jurisprudence. Lord Mansfield, in a passage which has been often quoted, thus expresses his views on the subject (c): — " Natural Equity says, that cross demands should " compensate each other, by deducting the less sum " from the greater; and that the difference is the only " sum which can be justly due. (a) 2 Geo. II. cap. 22, s. 13. (&) 8 Geo. II. cap. 24, as. 4, 5. (c) Green v. Farmer, 4 Burrow, 2214 ; see page 2220. Digitized by Microsoft® LECTURE V. 165 " 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 be of no avail. Where the nature of ' ' the employment, transaction, or dealings necessarily " constitutes an account consisting of receipts and paj"^- " ments, debts and credits, it is certain that only the ' ' balance can be the debt ; and by 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 " law 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, everywhere, the same " construction and effect, whether the question arises " upon a summary petition, or a formal biU, or an action "at law. There can be but one right construction: " and therefore if courts differ, one must be wrong. Digitized by Microsoft® 166 LECTURE V. " Where there was no bankruptcy, the injustice of " not setting-off (especially after the death of either "party) 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 goods or other " specific things wrongfully detained ; and therefore " neither courts of law nor equity can make the plaia- " 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 " plaintiff is only to redeem." In reference to the particular passage in which Lord Mansfield observes, equity followed the same rule, he- cause it ivas the laiv, we must of course bear in mind his Lordship's anxiety on all occasions to assimilate, nay, almost to fuse, "law and equitjr." 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 Rolls, who was well acquainted with the doctrines of equity, referring the equitable doctrines to the Roman law (a). In this case, which is very ill reported, after adverting to the Roman law, and then to the English statute law, in a mode calculated to throw some doubt upon the meaning of the passage which we proceed to quote, the Master of the RoUs continues thus : — " Equity took it (b) up, but with limitations and (a) See Whitaker v. Rush, Amtler, 407. (i) i.e. as I understand the judgment, "the rule, as to set-off," originally existing in the Roman law, and partially introduced into the English law hy statute. Digitized by Microsoft® LECTURE V. 167 " restrictions ; and required, that there should he a " connexion hetween the demands." And, on a late occasion (a), Lord Justice (then Vice- ChanceUor) Turner, after referring to two cases (6), in which questions as to set-off [or rather stoppage, to adopt the precise word used) came in question previously to the earliest statutory enactment respecting set-off, ex- presses himself thus : " It is clear, therefore, 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. 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) 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 (a) 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. Eush is erroneous. (b) Curson v. African Company, 1 Vernon, 121 ; Peters v. Soame, 2 Vernon, 428. Digitized by Microsoft® 168 LECTURE V. C is creditor of A in equity. At law C would have no right of set-off; but he files his biU in equity, and obtains it. The case of Clark v. Cort (a) is a good sample of the exercise of the equitable jurisdiction in instances of this kind (b) ; and that of Cavendish v. Geaves (c) will be found to contain some important principles, 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. (a) Craig & Pliillips, 154. (6) 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.) Chanc. 26. (c) U Beavan, 163. Digitized by Microsoft® LECTURE 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. Nor can this be pro- perly a subject for regret. That our common law tribunals should, in matters pecuHarly withia 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 determia- 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 sur- mounted, the equity court takes entire cognisance of the 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 jurisdiction. Digitized by Microsoft® 170 LECTURE VI. Not SO Id 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 perfect impartiality, that neither imparts a relish to the other. While then, as a member of the Chancery bar, I might be pardoned some lurking feelings of regret at witnessing the decKne of any head of equity juris- diction, honesty and good sense call upon me to hail the change as one decidedly beneficial to the com- munity at large. But, notwithstanding the decline alluded to, it must be some time yet before any one undertaking to give a sketch of equity jurisprudence can venture to omit aU 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 lawwithout assuming entire jurisdiction over the matter, may be convenient^ classed as follows :— Firstly. Cases io which equity aided the infirmity of the law in regard to evidence, comprising — (1.) Discovery. (2.) Perpetuation of Testimony. (3.) Examination of Witnesses de bene esse (a). Secondly. Cases in which equity aided the infirmity {a) This phrase is intended to include the examination of witnesses who are abroad. Digitized by Microsoft® LECTURE VI. 171 of the law, either by repressing needless and vexa- tious litigation at law where the right appeared to have been sufficiently tried there, as in bills of peace ; or by providing for a fair and sufficient trial in the proper forum, as in the case of bills to establish wills (a). Let us take the first subdivision of the first class, viz.. Discover}'. 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 (a) The old head of jurisdicbion exercised in the case of hills for a receiver of personal estate pendente lite in the Ecclesiastical Court, was strictly of an auxiliary kind. The leading features of the principles and practice under this head of jurisdiction will be found collected in the following cases, or iu those there cited : — ^Watkins v. Brent, 1 Mylne & Craig, 97 ; MaiT v. Littlewood, 2 Mylne & Craig, 454 ; Rendalli;. Kendall, 1 Hare, 152 ; Whit- worth V. Whyddon, 2 Macn. &; Gror. 52 ; Barton v. Rock, 22 Beavan, 81. But under the new Act (20 & 21 Vict. cap. 77) the Court of Probate has power (by sect. 70), pending any suit touching the ■validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of administration, to appoint an administrator of the personal estate of such deceased person ; and, although the jurisdiction of the court to appoint a receiver is not put an end to, a, stronger case for the appointment of a receiver must now be made than before the Act ; Hilohen v. Birks, L. R. 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 v. Duprez, L. R. 6 Eq. 329. On the other hand, the Court of Probate will appoint an ad- ministrator pendente lite, if it is just and proper so to do, although a receiver may have been already appointed by the Court of Chancery, Tichbome v. Tichborne, L. R. 1 P. & D. 730. The occasions for resort to the jurisdiction of the Court of Chancery under this head must, therefore, now become extremely rare. Digitized by Microsoft® 172 LECTURE VI. Bentham wrote, was that every person interested in the pending litigation was disqualified from giving evidence. Bentham, I beheve, first pointed out that, as a rule, no witness ought to be disqualified on account of interest only, and that the objection to the evidence of an in- terested person ought to be treated not as an objec- tion to the reception of his evidence, but merely as detracting from its weight when received. After seeing the general rule of the old law first broken ia 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 LordDenman's Act (6), which made interested persons good witnesses, as the rule, though retaining special instances of disqualification on the ground of interest, as in case of the parties plaintiEf and defendant them- selves ; we at last, some six years back (c), witnessed the final triumph of Mr. Bentham's views. The Act then passed (d) rendered, with a few exceptions (e), (a) 3 & 4 WiU. IV. cap. 42, ss. 26, 27. (6) 6 & 7 Vict. cap. 85. (c) The lectures were read in 1857-8. (d) 14 & 15 Vict. cap. 99. (e) 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 eoactments (21 & 22 Vict. cap. 108, s. 11 ; aud 22 & 23 Vict. cap. 61, s. 6) ; this exception, as respects proceedings in adultery, was abrogated by the 32 & 33 Vict. cap. 68 ; by which last Act the exception applicable to actions for breach of promise of marriage was also abolished. Digitized by Microsoft® LECTURE VI. 173 even plaintiffs and defendants competent and com- pellable 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 Uti- gant. The evidence of these was first made generally receivable by Lord Denman's Act. 2ndly. The htigants 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 disquahfication of the latter of these two classes, i.e., the parties litigant. These evils, but for the interference of equity, must indeed have been extreme. Thus, a plaintiff at law might sue a defendant notwithstanding the existence of circumstances known only to the parties litigant, but which, if given in evidence, would afford a good defence to the action. Let me put, as a possible case, that of a 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 remediless. The plaintiff proved the delivery of the goods, and recovered the value. Equity, however, allowed the defendant, under these circumstances, to file a bill against the plaintiff at law, calling upon him to answer upon oath the interrogatories contained in it ; and then the plaiatiff at law, unless prepared to perjure himself, was obliged by his answer to admit Digitized by Microsoft® 174 LECTURE VI. (though it might be with his own colouring) the substantial facts of the case. This answer, although not evidence in the ordiaaxy sense, might be given m evidence by the other party as an admission made by the plaintiif at law, just as any letter written by him admitting relevant facts might have been given in evidence. It was viewed strictly as an admission ; so that if the plaintiff in equity wished to give any portion in evidence upon the trial at law, he was obliged to read the whole, and make the whole evidence. Of course you will understand that a plaintiff at law had just as much right to file a bill for discovery in equity in aid of his action at law, as had a defendant at law against the plaintiff in aid of his defence. And you will 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 tome in mind, however, that the more searching character of the equity procedure in reference to production of documents was not " per se" a sufiBcient ground for a bill of discovery. Thus a, bill for discovery would not lie against a mere witness, notwithstanding the inferior efficacy of a subpcena duces tecum ; Fenton v. Hughes, 7 Yesey, 291. A singular statutory exception is to be found in the enact- ments (6 & 7 W. IV. cap. 76, s. 19 ; 32 & 33 Vict. cap. 24) authorising bills for the discovery of the names of printers, publishers, and proprietors of newspapers, as to which see Dixon v. Enoch, L. R. 13 Eq. 394. Digitized by Microsoft® LECTURE VI. 173 By these means the shortcomings of the law in respect to evidence were in some measure remedied. I say in some measure, because the admission of a third person being no evidence against a party litigant, the assistance of the court could in no way be made available to supply the exclusion of the evidence of persons falling within the first class. In fact tlie 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 biU of discovery lay against a mere witness (a). Here let me remind you, that discovery always formed and still forms part of the procedure of the court of equity, in those cases in which it grants relief in the exercise either of its exclusive or of its concurrent jurisdiction. The defendant was and is, in those cases, compellable to answer interrogatories which formerly were contained in the body of the bUl, and now are delivered separately (6). But the discovery granted by the coiu't of equity as the handmaid of the courts of law, was obtainable only on very different terms from that which formed part of the ordinary procedure of the court. For the (a) There was a special exception in the case of the secretary or other public officers of a corporation, who might be made co-defendants with the corporation for the purpose of obtaining discovery in the case either of a bill for relief or of a bill for discovery only : Glascott o. Copper Miners' Company, 11 Simons, 305. As to obtaining against a corporation, under the new practice introduced by the 15 & 16 Viet. cap. 86, sect. 18 (see pages 80-83, ante), discovery respecting, and production of, documents without making an officer a defendant ; see Hanger v. Great Western Railway Company, 4 De Gex & Jones, 74 ; Clinch i>. Financial Corpora- tion, L. K. 2 Eq. 271. (i) See p. 79, supra. Digitized by Microsoft® 176 LECTURE VI. moment the bill for discovery had been fully answered, the defendant, however strong a case he might have admitted against himself, was entitled to his costs in equity ; and the plaintiff in equity, even though ulti- mately successful, either as plaintiff or as defendant in the action at law, had to bear the entire costs of his bill of discovery. Consequently, except where the amount in dispute was large, a bill of discovery in equity was too costly a weapon for use. When therefore we consider the onerous terms upon which onlj' the equity courts granted discovery in aid of actions or of defences to actions at law, we cannot but view with satisfaction the statutory jurisdiction lately conferred on the conunon law tribunals — a juris- diction which has rendered them practically indepen- dent of the auxiliary jurisdiction of equity in affording discovery. The first step towards enabling the courts of law to do for themselves what equity had previously done for them, was that taken by the Evidence Act of 1851 (a), the Act which first made parties good witnesses. The sixth section is in these words : " Whenever any " action or other legal proceeding shall henceforth 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, " or the Court of Pleas for the County of Durham, " such com-t and each of the judges thereof may re- " spectively, on application made for such purpose by " either of the Ktigants, compel the opposite party to (a) 14 & 15 Vict. cap. 99. Digitized by Microsoft® LECTURE VI. 177 " allow the party making the application to inspect all " documents in the custody or under the control of " such opposite party relating to such action or other " legal proceeding, and, if necessary, to take examined " copies of the same, or to procure the same to be " duly stamped, in all cases in which, previous to the " passing of this Act, a discovery might have been " obtained by filing a bill or by any other proceeding in " a court of equity at the instance of the party so " making such application as aforesaid to the said " 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 de- fendant's answer, and not indirectly by production. And yet, in this section, "inspection or production of " documents " and " discovery " seem to be viewed as equivalent things. The absence of any provision in the Act for compel- ling a discovery generally in answer to interrogatories, is probably to be explained by the circumstance, that the framer of it considered the privilege thereby con- ferred of calling the opposite party as a witness, to be aU that was really needed. In reference to the jurisdiction to compel inspection thus conferred by the Evidence Act, the common law Digitized by Microsoft® 178 LECTtJEE VI. 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 ia 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 (6), 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 order the opposite party to answer on affidavit what documents he has in possession or power relating to the matters in dispute ; and upon such affidavit being made, the court or judge may make such further order thereon as shall be just — i.e., order an inspection or not. The 51st section confers on either party a power of delivering written interrogatories to the opposite (a) See Hunt v. Hewitt, 7 Exchequer K. 236. (6) 17 & 18 Vict. cap. 125. Digitized by Microsoft® LECTURE VI. 179 party (a), provided such party would be liable to be examined as a witness upon such matter ; and the party interrogated must answer by affidavit, or, in default, a contempt of court will be deemed to have been committed. And by the 59th section, where the written interrogatories are not sufficiently answered, the court may direct an oral examination before a judge or master of the party interrogated. In reference to the jurisdiction conferred by this last Act, the following points appear worth noting : — 1. The jurisdiction under the 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 (6) 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 which he is entitled (c), or even (a) The public officer of a company suing nominally on behalf of the company is liable to be interrogated, at aU events if he is a shareholder in the company ; McKewen P.O. v. Holt, 28 Law Journal (N.S.), Ex- chequer, 380. (4) The case of a corporation being defendant or plaintiff, where there can be no afS davit of the party, appears to be a casus omissfm; and where the party requiring discovery is abroad, there may be great difficulty in procuring an affidavit ; see Herschfield v. Clarke, 11 Exchequer, 712. But in either case the jurisdiction under the Evidence Act of 1851 will often be found available. (c) See Thompson v. Robson, 2 Hurlstone & Norman, 412 ; adhered to in Woolley v. Pole, 14 Common Bench Kep. (N.S.) 538. Digitized by Microsoft® N 2 180 LECTURE VI. specify some one document in order to entitle himself to the aid of the court (a), it is obvious that the common law jurisdiction under this section must occasionally fall short of the requirements of the party seeking discovery ; unless, indeed, the practice be iatroduced of first deUvering an interrogatory re- spectiug documents under section 51, and then, after the requisite knowledge respecting documents has thus been gained, applying for inspection under section 50 (b). 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 afiidavit 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 particular interro- gatory upon any point which as witness he might have {a) See Hewett v. Webb, 2 Jurist, N.S. 1189 ; Bray v. Finch, 1 Hurl- stone & Norman, 468; Evans & Louis, L. R. 1 C. P. 656. (5) It is believed this practice has been introduced to a considerable extent : see Adams v. Lloyd, 3 Hurlstone & Norman, 351 ; though if the ratio decidendi in that case has been generally adhered to in the Common Law Courts, the discovery obtainable must fall far short of what may be gained in Equity. According to the Chancery practice, the oath of the person interrogated is accepted as conclusive only upon the question whether the documents mentioned by him ate all that he has relevant to the matters in question ; but he is bound to schedule or describe all he has, whether privileged from production or not, leaving the Court to decide whether they shall, or not, be produced. Digitized by Microsoft® LECTURE VI. 181 declined answering ; — say an interrogatory the answer to which might tend to criminate him, or an interro- gatory calling for the disclosure of a communication made to the party hy 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 courts is to treat the affidavit of the party interrogated as an admission merely which cannot be put in evidence at aU on behalf of the party making it, and which, if put in evidence by the interrogating party, must be put in evidence altogether, and the whole of it read. One question yet remains before parting with the subject of discovery as a head of auxiliary jurisdiction. Have the recent powers conferred on the common law courts theoretically affected the auxiliary jurisdiction of the courts of equity ? Practically, I believe a bill of discovery in equity is hardly ever now heard of. But circumstances might occur at the present day to render desirable a resort to equity for discovery ; say, for instance, a narrow construction by the common law courts of the powers of compeUing inspection of documents. In such a case, if the stake were suffi- ciently large, a bill of discovery in equity might be desirable. Upon principle, the jurisdiction must be held to re- main. No doubt, under the old law, the equity courts declined to compel a discovery in aid of proceedings in (a) Also, in accordance with the exception made by the 14 & 15 Vict, u. 99, s. 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. c. 68, abolishing the exception. Digitized by Microsoft® 182 LECTURE VI. courts having themselves the means of compelling it, such as the ecclesiastical, courts {a). But it is a canon of equity jurisprudence, that no alteration of the law removing difficulties or impediments which originally led to an assumption of jurisdiction in equity, can operate to deprive the court of a jurisdiction once assumed. Thus, in Kemp v. Pry or (b), where it was argued that in consequence of the greater latitude assumed by courts of law in modern times, the biU in that case should have been a bill for discovery merely, and not for discovery and relief; Lord Eldon thus expresses himself: — ■ Farther, I cannot admit, that if the subject would have been a subject of equitable demand previously to the extension of the exercise of the principle upon which a court of law is authorised to act in the action for money had and received, that court sustaining an action they would not have sustained forty years ago ' is an answer to a bill that -wjould have been sustained ' in this court at that time. Upon what principle can ' it be said the ancient jurisdiction of this court is de- ' stroyed, 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." (a) See Dunn v. Ooates, 1 Atljn's Kep. 288 ; and an Anonymous Case, 2 Vesey senior, 451. (6) 7 Vesey, 237. Digitized by Microsoft® LECTURE VI. 183 You will observe, that in the case before Lord Eldon, the discussion was respecting instances in which the court had been in the habit of aifording relief, in con- sequence of the inadequacy of the common law juris- diction. The same principle must, however, it is con- ceived, apply to the auxiliary jurisdiction of the court in affording discovery. The following dilemma seems, however, inevitable — Either the common law jurisdic- tion in affording discovery wUl prove equally efficacious wiiix that in equity, in which event a common law litigant will certainly not come into equity for dis- covery 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 juris- diction (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 reversionary nature of that title, the law affords him no means of asserting and establishing it. Meanwhile the very testimony upon which his title depends may be in danger of perishing by the death of those who, if alive, would be able to give evidence in its support. In this state of things, it is competent to the party claiming such future interest to file a bill in (a) The observations of Lord Hatherley (when V. -C. Wood), in the case of theBritiah Empire Shipping Company s). Somes, 3Kay& Johnson, 437, which had escaped me, when writing the above, fully support the jurisdiction. Digitized by Microsoft® 184 LECTURE VI. equity against all those who are interested in disputing it, asking that witnesses may be examined respecting the point in controversy, and that the testimony may thus be perpetuated (a) . Perhaps the best instance that could be given of a suit of this class, is the case of Dursley v. Fitzhardinge Berkeley (b). It arose out of the circum- stances which at a later date gave rise to the well-known Berkeley Peerage Case (c) in the House of Lords. The plaintiffs were foiu' infant sons of the then Earl Berkeley, the first plaintiff on the record (there called Lord Dursley, and then about fifteen) being the same person who in later life was well known, first as Colonel Berkeley, and subsequently as Lord Fitzhardirige. The defendants were two other infant sons of Earl Berkeley, and also Admiral Berkeley, a brother of the then Earl, and the son of the Admiral. The biU stated 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 had been a subsequent marriage in 1796. The four plaintiffs were aU born before this subsequent marriage (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 belieTe, not reported, bnt the fflinntes of the Evidence taken in 1799 and 1811 will be found amongst the House of Lords' printed papers. Digitized by Microsoft® LECTURE VI. 185 — 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 wiU observe that the then Earl of Berkeley was actually tenant for life in possession, so that no means existed of litigating the question of legitimacy (a); and under these circum- stances the infant plaintiffs prayed that the evidence of the alleged marriage of 1785 might be perpetuated. The particular point decided in the case was, that the infant plaintiffs were entitled to perpetuate testimony against Admiral Berkeley and his son, notwithstanding the remote position of the latter in the order of entail ; but the judgments of Lord Eldon (he delivered two) are replete with valuable information, and will be foimd to contain the leading doctrines of the court in reference to the head of equity now under consideration. These, at the date of Lord Eldon's judgment (for they have been somewhat modified by a 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 biU 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, though only remote remainder men, might, as having vested remainders, have sustained a biU against the infant plaintiffs to perpetuate testimony of their illegitimacy, (a) See now "The Legitimacy Declaration Act, 1858" (21 & 22 Yict. cap. 93.) Digitized by Microsoft® 186 LECTUKE VI. and that therefore the plaintiffs were, e converso, entitled to ffle a bill against them. Secondly — The court declines to perpetuate testi- mony of a right which might be immediately barred by the defendant against whom perpetuation is sought, as in the case of a remainder man filing a bill against tenant in tail in possession. Thirdly — A mere expectancy, 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 relationship. Eeferring to the case of a limatic, Lord Eldon says : " Put the case as high as " possible, that the lunatic is intestate; that he is in the " Toiosthopeless 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 iastant, the plaiatiff could " not qualify^himself as having an interest in the sub- " ject of the suit." We shall see presently the effect of the late statute upon this point. Fourthly — ^A biU to perpetuate testimony only ap- plied where some right to property was involved. This (which I may observe, you will not find laid down in the case before Lord Eldon) was admitted in the Townshend Peerage Case (b), which I am about to mention. This case (that of the Townshend Peerage) was not only remarkable in its circumstances, but important as (a) See Smith v. AttorDey-General, Romilly'a Notes of Cases, 51 (6) 10 Clark & Fiunelly, 289. Digitized by Microsoft® LECTURE VT. 187 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 binfi for nullity of marriage, alleging his impotency. Dropping that suit, she eloped in 1809 from her father's house with a Mr. , and went through a ceremony of marriage with him at Gretna Green. During many years' co- habitation with him, several children were born, who at first were named after him, and educated as his children; but, in 1823, they and their mother assumed the names and title of the peer. The Marquis generally lived abroad, had no access to his wife, knew of her infidelity, but took no proceedings to dissolve the mar- riage or bastardize the children. In 1841, the eldest of the children, then of fuU 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 Leicester," and he declared his qualification to sit in the House of Commons to be as eldest son of a peer of the realm. Under these circumstances, a petition was, ia 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 Digitized by Microsoft® 188 LECTURE VI. SO calliag himself Earl of Leicester, and praying that their lordships wotdd provide such remedy and adopt such proceedings as to their lordships might seem meet (a). The result of this petition was the introduction by Lord Cottenham into Parhament of a hill, which sub- quently became law, as the Act of the 5 & 6 Vict, cap. 69. By this Act (after a preamble reciting that it was ex- pedient to extend the means of perpetuating testimony (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 born in ' adultery, from succeeding to the numerous honours of the petitioner's ' family. That in consequence of there not being any property involved ' in the succession of the petitioner as heir to his said brother, he ia ' advised that he cannot file a bill in Chancery to perpetuate testimony ; ' and he submits that it would be not merely an anomaly, but an injustice ' to the families of peers, if, while the law provides means for securing ' the rights of inheritance of the humblest person in the kingdom to every ' kind of property, by enabling the party interested to perpetuate 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, never- ' theless 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 pro- ' vide such remedy and adopt such proceedings as to your lordships may ' seem meet. " Digitized by Microsoft® LECTURE VI. 189 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 happening of any future event to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which could not by him be brought to trial before the happen- ing of such event, should be entitled, from and after the passing of that Act, to file a bill in the High Court of Chancery to perpetuate any testimony which might be material for establishing such claim or right. The second section provided for making the Attorney- General a defendant to all suits instituted under the authority of the Act, touching any honour, title, or dignity, or any other matter in which the Crown might be interested. The chief extensions made by this Act were shortly as follow : — First. The right to perpetuate testimony was ex- tended to persons claiming titles, dignities, or offices, and not restrained as before to claims in respect of property. Secondly. A person who would, under the circum- stances alleged by him to exist, become entitled, upon the happening of any future event, &c. &c., may now file a bill to perpetuate, so that the distinction adverted to as existing in Lord Eldon's time between a mere spes suecessionis and a remote interest no longer exists ; and an heir at law or next of kin may equally have testimony perpetuated. In reference to the particular case (the Townshend Digitized by Microsoft® 190 LECTURE VI. Peerage) wHch gave rise to the Act, it is sufficient to state, that ia the subsequent session, that of 1843, both the Marquis Townshend himself, and his brother the former petitioner, applied to the House, claindng its interference, notwithstanding the altered state of law under the new Act; and in the same session, under the auspices of Lord Brougham, a private Act was passed {a) enacting that the children of the Mar- chioness, therein mentioned, with the exception of one child, a minor, whose rights were specially saved, were not, nor should any of them be deemed, lawful issue of the Marquis. Thus, singularly enough, the parti- cular case, to meet which the general Act was passed', never needed the assistance of it. A few points in reference to the practice of the court in suits of this kind demand notice. 1. The depositions taken are never published until, by reason of the death of the witness, it becomes appa- rent 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 jurisdiction itself (&). The witness, it has been ob- served, gives his -testimony vrithout being under the restraint of any of those penalties which the law im- poses upon perjury ; for during his life the evidence is not published, and after his death human tribunals can no longer reach him. The evil was, under the old (a) An elaborate protest againBt the passing of the Act was signed by Lord Cottenham and six other peers ; see 10 Clark & Finnelly, 314. (J) Angell «. Angell, 1 Simons & Stuart, 89. Digitized by Microsoft® LECTURE VI. 191 practice, aggravated by the circumstance that cross- examination was a mere shadow, the interrogatories for cross-examination (so called) being framed without any knowledge of what the witnesses might say on their examination in chief. But it has been decided that the alterations in equity procedure introduced in 1852 in reference to taking evidence, apply to the case of examining witnesses de bene esse (a) ; and upon principle, therefore, witnesses in a suit to perpetuate testimony must either be examined viva voce before an examiner, the other side attending and giving evidence, or they must depose by 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 (b) ; in truth, there is nothing to hear ; for first, there is no issue immediately triable, and secondly, the evidence not being published, there is no evidence available. The practice is as follows : If the defendant merely cross-examines the witnesses of the plaintiff, he is entitled to his costs. If he examines witnesses of his own, then, as he has availed himself of the biU to perpetuate testimony in his own favour, he must bear his own costs (c). The third subdivision of my first m'ain division of (a) Cook V. Hall, 9 Hare, App. xx. — And the Order as to evidence of the 5th February, 1861, provides (by rule 16) that in suits to perpetuate testimony, evidence shall continue to be taken according to the then existing practice. See Mr. Barber's Statement, p. xlviii. (b) And a motion to dismiss a bill of this kind for want of prosecution is irregular. The proper application is that the plaintiff do proceed within a given time, or pay the defendant his costs ; Wright v. Tatham, 2 Simons, 459. See further, EUioe v. EoupeU (No. 2), 32 Beavan, 315. (c) Vaughau v. Fitzgerald, 1 Schoales & Lefroy, 316. Digitized by Microsoft® 192 LECTURE VI. auxiliary jurisdiction, namely, bills for the examination of witnesses " de bene esse" may be treated as practi- cally defunct. In former times, a plaintiff, who had actually com- menced litigation at law, or a defendant who was actually sued there, might be under the apprehension either that at the time of trial important witnesses actually abroad might still be there, or that important witnesses of advanced years might be then dead, or that old or infirm witnesses might be then imable 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 theii- nature, bills to perpetuate testimony. But there were certain technical distinctions. Thus the bill to obtain a commission for the examination of witnesses abroad, or of aged or iiifirm witnesses, lay only where litigation had actually commenced (a). And there were distinc- (a) Angell v. Angell, 1 Simons & Stuart, 83. On the other hand, it is a fatal objection to a bill for perpetuation of testimony, if taken at the proper time, that the matters in dispute maybe made the subject of imme- diate judicial investigation ; EUice v. Roupell (No. 1), 32 Beavan, 299 ; Earl Spencer v. Peek, L. E. 3 Eq. 415. And see further, as to the dis- tinction between ** perpetuating testimony" and "examination de bene esse," the judgment of the Master of the Rolls in EUice v. Eoupell (No. 2) 32 Beavan, 308. Digitized by Microsoft® LECTUEE VI. 193 tious in reference to the circumstances under which puhlication 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 coiu"ts from the need of the assisting hand of Equity, was that made by the India Bill of 1773 (b), which provided for taking evidence in India in reference to actions and suits of which cause arose in India. In 1830 (c), powier was given to the common law courts, to order an examination upon interrogatories or otherwise, of any witnesses within the jurisdiction, and to issue commissions for the examination of witnesses out of the jurisdiction ; and from this Act we may date the practical extinction of the head of auxiliary jurisdic- tion, which, in consequence, we have merelj' glanced at. Secondly. — We pass now from the class of cases in which the aid of equity was afforded to supply the infirmity of the common law in respect of evidence, to that where a jurisdiction was exercised to repress needless and vexatious litigation at law, as in Bills of Peace ; or to provide for a fair and sufficient trial in the proper forum, as in the case of bills to establish wills. Here the jurisdiction, though " auxiliary," in the sense that the equity court did not altogether super- sede the common law juiisdiction, was exercised upon (a) Harris f. Cotterell, 3 Merivale, 680. (b) 13 (Jeo. in. cap. 63, s. 44. (c) By 1 WiU. IV. cap. 22, s. 1. o Digitized by Microsoft® 194 LECTURE VI. very different principles from those regulating the auxiliary jurisdiction ia 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, posses- sing or supposing themselves to possess some common right, find that right disputed by some other person who is in a position, if so inclined, to litigate sepa- rately at law with each of his opponents their title to the common right alleged. Take, as an instance, the case of a manor, with several copyholders, and of a dispute arising as to the amount of the fine payable to the lord by the copyhold tenants. Here the lord might, if he chose, htigate separately' with each tenant the question respecting the fine to be paid. After faihu-e 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 copj'holder. Aiid this might be repeated ad libitum. The only check would be, the increased probability of defeat after every new failure, and the correspondingly increasing probability of having to pay costs. On the other hand, the vexation might proceed from the tenants, who might seriatim and in detail harass the lord after repeated failures on their part. In a case of this kind, equity supplies a remedy Digitized by Microsoft® LECTUEE VI. 195 by what is called a Bill of Peace. Either the suc- cessful tenants may file their bUl 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 of York v. Pilkington (a) is especially instruc- tive as being only just within the boundary-hne 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 bin 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 clauned several rights either as lords of manors, or occupiers of the adjacent lands. Lord Hardwicke at first thought that there was not a sufiicient community of right between the defendants to make the case suitable for a bill of peace, the defendants not all claiming or defending in the same character, as where you have tenants of a manor on the one side and lord on the other ; parishioners, in the old tithe suits, on the one side, and parson on the other. And upon this ground he, in the first instance, allowed a demurrer to the bill. Subsequently the demurrer was set down to be re- argued, and his Lordship held that the existence of one general right claimed by the plaintiffs was suffi- cient to sustain the bill, although the defendants (a) 1 Atkyns, 252. Digitized by Microsoft® ° ^ 196 LECTURE VI. 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 biU of peace would be a fitting step. You wOl find in " Van Heythuysen's Equity Precedents " (6) a form of a biU, 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 miU. But, besides the cases which we have just been con- sidering, where the opportunity for vexatious litigation arises out of the number of claimants on one side, there is another in which, although the parties litigant be merely A on the one hand and B on the other, trial after trial may be had, subject only to the check imposed by the fear of haviag to pay costs. I allude to proceed- ings in ejectment. The action of ejectment was, if you recollect, origin- (a) In a recent case, where a person claiming to be the owner of a patent had filed 134 bills against different defendants, Lord Westbury, L. C, directed the 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 ; i De Ger, Jones, & Smith, 77. (6) Vol. i. p. 611 ; see the decrees at pp. 614, 622. Digitized by Microsoft® LECTURE VI. 197 ally a convenient invention for trying the title to land without the formality of a real action. Thus Jones claimed the freehold against Thompson, the latter being in possession. The following fiction was supposed : — Jones, the claimant, was treated as having entered upon the land, and as having, after entry, made a lease to Doe. Next, it was supposed, that while Doe was on the land, claiming under the lease ; Eoe, claiming title under Thompson, the person reaUy in possession, had come and turned Doe out. Roe was called the casual ejector. To seek redress for this imaginary wrong, an action was commenced in the name of Doe against Roe. Doe, on the demise of Jones — the real claimant — against Roe (a) was the title of the action. Notice of this action was given to Thompson, who was let in to defend on the terms of his admitting all the fictitious supposi- tions, viz., that Jones had leased to Doe, that Doe had entered, and that Roe had tiu-ned Doe out. To use the ordinary phraseology, the real defendant, Thompson, had to confess lease, entry, and ouster. In its subsequent stages, the suit proceeded so as to try the real point between Jones and Thompson ; and ulti- mately there was a verdict for or against Doe, as the case might be. Now, although generally the courts of law moulded this fictitious action so as to work effectual justice, we find here and there curious anomalies flowing from the fiction which it involved. Thus, for instance, although the sovereign cannot, as you know, sue or be sued in {a) Doe dem. Jones ». Koe. Digitized by Microsoft® 198 LECTXJRE VI. his own court, yet he might maintain an ejectment — for the ejectment would be brought in the name of Doe, or Goodtitle, as lessee ; and the lessee of the sovereign must needs have his remedy as well as other lessees. Accordingly, in the 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 anomaly we are here concerned, since the plaintiff was Doe, Goodtitle, or some other imaginary person — if one ejectment failed, another might be brought imme- diately after, and a third and fourth, and so on, ad infinitum. For the new plaintiff was not, in legal con- templation, the same person as the one who had failed in the former action. Any name might be selected for the imaginary plaintiff. The only check at law upon repeated and vexatious ejectments was the practice adopted by the common law courts of staying sum- marily a fresh ejectment until the costs in the former action had been paid ; a restraint obviously inadequate to meet the real justice of the case. Under these cir- cumstances, the equity courts, in cases of repeated and vexatious ejectments, when the right had been suffi- ciently tried, took upon themselves to interfere and stay further litigation. This branch of jurisdiction cannot be said to have been finally settled until the case of the Earl of Bath V. Sherwin (a), which is a leading case on the subject. There the plaintiif's title had been established in five successive ejectments, and he brought his bill for a perpetual injunction, and to stay the defendant (a) Precedents in Chancery, 261, Digitized by Microsoft® LECTURE VI. 199 bringing unj 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 suffer the former ' verdicts to be pleaded, he could not help it : he said ' he was satisfied of the vexatiousness of the defendant ' in this case : but if it was a grievance, it was in the ' law, wliich 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). (a) i Brown's Parliamentary Cases, 373. Digitized by Microsoft® 200 LECTURE VI. Now, with reference to bills of this last class, the Common Law Procedure Act of 1852 (a), though con- signing Doe and Roe to the grave, has retained the anomaly derived from their former existence ; I mean the non-conclusiveness of the action of ejectment ; the 207th section of the Act expressly providing, " That " the effect of a judgement in an action of ejectment " under that Act should be the same as that of a judge- " ment in the action of ejectment theretofore used." The Procedure Act of 1854 (b) 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 stiU exists, and the auxiliary jurisdiction of equity to quiet titles agaiast vexatious ejectments must therefore be regarded as still needful and in force (c). Of the heads of auxiliary jurisdiction mentioned by me at the outset, " Bills to Establish Wills " alone remain. There is, perhaps, hardly any portion of our judicial machinery which affords less ground for satisfaction than that which has been provided, or rather suffered to exist, for the litigation of matters testamentary. Let us first consider the state of the law as it stood previously to the Act of last session (d). (a) 15 & 16 Vict. cap. 76. (b) 17 & 18 Vict. cap. 125. {■. Brooke, 4 Jurist (N.S.), 472; s. c. 25 Beavan, 342. (a) Consult, in reference to this point, the cases of Messenger v. Clarke, 5 Exchequer R. 388 ; Tugman v. Hopkins, 4 Manning & Granger, 389 ; and Came v. Brice, 7 Meeson & Welsby, 183. It would seem that the Master of the Bolls considers the decision in Messenger v. Clarke as resting on the inability of the Common Law Courts to recognise this testa- mentary power ; see Brooke v. Brooke, 4 Jurist (N.S.), 473. (6) 17 & 18 Vict. cap. 125, s. 83. Digitized by Microsoft® LECTURE VII. 235 preserved by means of a power of appointment hj mil, with a gift in default of appointment amongst her next of kin excluding her husband. Where this is so, if the -wife make no will, stiH the husband gets nothing, because the parties entitled as in default of appointment take (a). But the case to which I have now to direct your attention is that of property which is settled, or agreed to be settled, simply /or the separate use of a married woman, who dies without exercising her privilege of alienation. In this case, upon the death of the married woman the property will devolve in the same manner as it would have done had it never been secured to her ' separate use. By her death, the coverture determines, the separate use drops off, and the property, regaining its simple original quality, goes to the wife's heir, if it be real estate (b) and to her husband, either in his marital right, or as an administrator, if it be personal estate. SirJohn Leach, I believe, first distinctly decided that this was the true view of the question, in the case of Proudley v. Fielder (c). In that case it had been stipidated by marriage articles that certain (a) But if the wife should die without next of kin, as for instance where she is illegitimate and has no issue, the rights of the husband to her personal estate are unaffected, and will prevail over any claim of the crown • see Hawkins v. Hawkins, 7 Simons, 173, the decision in which case is, in principle, the same as that in Proudley v. Fielder, mentioned in the body of the text. (6) Subject, whether the wife's interest be legal or equitable, to the husband's right as tenant by the curtesy ; see Appleton v. Eowley, L. K. 8 Eq. 139. (c) 2 Myhie & Keen, 51. Digitized by Microsoft® 236 _ LECTURE VII. moneys in the funds, the property of the intended Avife, should be for her sole and separate use to all intents and purposes, as if she were sole and un- married. She died intestate, leaving her husband surviving. The next of kin claimed the property against the husband ; but Sir John Leach held the latter entitled. His judgment was as follows: " These " moneys were to be for the sole and separate use " of Mrs. Leader, as if she were sole and unmarried. " This expression has no reference to the devolution of "the property after her death. She is to retain the " same absolute enjoyment of the moneys, and is to " have the same power of disposition over them, as "if she were sole and unmarried; but there is not" " one word here to vest the propertj' after her death " in her next of kin, or to defeat the right which " her surviving husband is entitled to acquire as " administrator." You observe that Sir John Leach speaks of the hus- band being entitled as administrator. Whether, in order to clothe his right with a legal title, it is necessary for the husband to take out administration or not, depends merely upon the nature of the property affected by the separate use. To ascertain what the husband's rights are, assume merely that the separate use, which drops oif at the very instant of death, is out of the way. Is the wife, at the moment of death, entitled to chattels personal, passing by manual delivery, such as furniture or cash ? Then as the husband might but for the separate use have talien possession of them, so at the very moment of Digitized by Microsoft® LECTURE VII. 237 death he takes them in his marital right simj)ly, and no administration is needed {a) . If, on the other hand, the property be of such a nature that the husband, in the absence of any sepa- rate use, could only have claimed as administrator, as is the case in respect to the wife's choses in action, such as a sum of money secured to the wife by mort- gage executed to her before marriage, then he must equally, after the separate use has dropped off, clothe his title ^vith an administration. 5. — In the observations previously made, no distinc- tion has been taken between personal and real estate ; and if one might, without presumption, hazard a pre- diction, it ' would be that ere long separate estate^ in freeholds of inheritance vidll be placed on the same footing as that in personal estate (&). It cannot, however, be said that this has yet been distinctly done. The nearest approaches j-et made in the direction of assimilation, together with what yet remains to be accomplished, shall be briefly pointed out. Fii'st, the case oiBaggett v. Meux, decided by L. J. (then V. C.) Knight Bruce, below (c), and by Lord Lyndhurst on aj)peal(cQ, decides that both the separate use and the restraint on anticipation may be annexed to a gift of real estate in fee to a married woman ; and that a court of equity will give effect both to the separate use and the restraint dm-ing the coverture. (a) See Molony v. Kennedy, 10 Simons, 254 ; Bird v. Peagrum, 13 Common Bench E. 639. (5) See new note at p. 240. (c) 1 CoUyer, 138. {d) 1 Phillips, 627. Digitized by Microsoft® 238 LECTURE VII. Next, it is clear that where a married woman is entitled to an estate for her own life, in real property, to her separate use, she may contract to sell, or charge, or encumber her whole life estate (a). And it maybe taken to be settled, that, at least so far as respects her equitable interest, a convej^ance by deed acknowledged is not necessary. Where the legal estate in the land is in the wife, upon principle a deed acknowledged would seem requisite to bind the legal estate, though in a case in Ireland (&), the Master of the KoUs there appears to have thought even this unnecessary. Lastly, though upon the principles laid down in Baggett v. Meux the wife ought to possess the same power of ahenation over real estate held to her separate use siniply as over personalty, the question whether she can, as respects freeholds of inheritance settled to her sepai-ate use, bind them either by deed not acknow- ledged or hj testamentary instrument, remains yet to be determined. In the Irish case just before referred to, the Master of the Rolls for Ireland seems to have considered that freehold interests of the wife extending bej'ond her o\vn life, cou'd be bound only by deed acknowledged. The original doiibts u]>on the subject are due to Lord Hard- wicke's views, as expressed in Churchill v. Dibben (c), and to an anonymous case referred to in Peacock v. Monk ill); and j^robably were the result in the fii'st (a) Stead i\ Nelson, 2 Beavan, 245 ; and Wainwrigbt v. Hardisty, 2 Beavan, 363. (6) Newoomen v. Hassard, 4 Irish Ch. Rep. 274. (c) 2 Lord Kepyon's Reports, Fart II. p. 84, and 9 Simons, p. 451. d) 2 Yesey, Sen., 192. Digitized by Microsoft® LECTURE vir. 239 instance of tlie notion either that the heii- was an object of special favoui- in the eye of the law, or else that, not being a party to the instrument creating the separate use, he could not be bound. As respects the last sug- gestion, the same principles which bind the husband in the case of personal estate without his consent, ought equally to bind the heir in the case of a real estate (a). It cannot, however, be denied that these doubts have acquired considerable weight. In the late case of Harris v. Mott (b), they were considered by the present jMaster of the Rolls sufBcient to deter him from decreeing a specific performance. In that case real estate had been devised to a married woman, to and for her own sole and sej^arate use and benefit. She and her husband contracted to sell ; and before com- pletion she died, having devised to her husband ; and the Master of the KoUs thought he could not properly compel the purchaser to take the title in the absence of the heir. If one were to reason from the past history alone of the separate estate, the ultimate establishment of a power in the married woman to bind in equity, either by instrument not acknowledged or by her will, her separate estate in fee simple interests would seem a probable event ; and it is, to be hoped that the general sjanmetry of this beneficial creation of equity wiU not be marred by the anomaly which would be j)resented by the absence of such a power. Meanwhile we must wait jDatiently, until occasion shall arise for solving the doubts which unfortunately (a) Seenp. 219, !8^/ffl»9%y M/crosoft® (*) 14 Beavan, 169. 240 LECTURE VII. impair, for the present, the completeness of that sys- tem, a general outline of which I haye this evening endeavoui-ed to present to you (a). (o) The dontts referred to may be considered as haying been finally solved, and the general power of the married woman to hind her separate estate, established by the decision of Lord "Weatbury, in Taylor v. Meads, 5 New Hep. 348 ; 34 Law Journal (N.S.), Chane. 203. The history of the intermediate decisions and dicta was as follows :^In June, 1861, in the case of Adams v. Gamble, 12 Irish Chancery Reports, 102, it was held by Lord Justice Blackburn and Mr. Baron Hughes (Lord Chancellor Maziere Brady dissenting and adhering to his original decision, reported 11 Irish Chancery Reports, 269), that a descendible freehold settled to the separate use of a married woman might be disposed of by her as if she were a feme sole. In May, 1863, in the case of Lechmere v. Brotheridge, 32 Beavan, 353, the Master of the Rolls, agreeing with the Irish dissentient judge, ruled that the equitable estate in fee simple of a married woman, held for her separate use, can be disposed of only by deed acknowledged. The authorities and dicta will be found elaborately reviewed in the judgments of the Irish Judges and of the Master of the Rolls. In 1864, in the case of Hoare ». Osborne, 33 Law Journal (N.S.), Chancery, 686; see page 591, Kindersley V.-C. (adhering to his view expressed at 4 Drewiy, 38) treated it as clear, that "the fee simple of real estate cannot be settled "to the separate use of a mamed woman so that byher will she may dispose "of it as if she were a, feme sole." On the other hand, about two months, later, the Master of the RoUs, in Taylor v. Meads, 4 New Rep. 203, inti- mated that bis decision in Lechmere v. Brotheridge must be understood as applying only to the power of disposition of the married woman over her fee-simple property by act inter vivos; and, it being (according to the views of the Master of the Rolls upon another point) unnecessary so to do, his lordship declined to express any opinion upon the question whether a manied woman had or had not, as incident to her separate estate in fee- simple, a general power of testamentary disposition, saying that the point was one of considerable difficulty. On appeal. Lord Westbury differed from the Master of the Rolls upon the point which had rendered unnecessary any decision as to the general power of the married woman, and, in a considered judgment, held that where real estate is vested in trustees upon trust for the separate use of a married woman (without restraint on alienation) she has, as incident to her separate estate, and without any express power being conferred on her, a complete right of alienation, either by instrument ; inter vivos, not acknowledged under the Fines and Recoveries Act, or by will, and that there is no distinction in this respect between an equitable fee and any other pi-operty. Digitized by Microsoft® LECTURE VIII. I APPROACH the subject of "Account, as an instance of the conciu'rent jurisdiction in equity," with very- different feelings from those with which I opened my last lecture ; for under the head of Account we find ranged some of the most embarrassing questions in reference to equity jurisdiction — questions, too, which we are obKged to solve as we best may by reference to authoritative decision rather than to principle. Bear in mind, that I am now considering not account generally, but account as an instance of concurrent jurisdiction. "Account," in some shape, enters more or less largely into almost every head of equity juris- diction ; whether exclusive or concurrent. Thus, as respects the exclusive jurisdiction : in matters of trust, trustees' accounts are taken ; in matters of admuiis- tration, the taking of accounts forms the most impor- tant part of the duty of the equity court ; and in suits for foreclosure or redemption, accounts of the amount of mortgage debt due, including, when the mortgagee has taken possession, accomits of the rents and profits received by him, are an essential preliminary to the relief ultimately granted. So, in reference to the con- ■curi'ent jurisdiction, there is hardly any head of equity £ Digitized by Microsoft® 242 LECTURE VIII. in which it may not occasionally be necessary to take accounts. But my concern this evening is with that portion of the concurrent jurisdiction of the court which rests upon " account " simply. In my brief general review of the " concurrent juris- diction," while mentioning and explainiag generally the nature of the various heads of equity falling within that division, I reserved " account " for consideration in this lecture. There was more in that reservation than might have been suspected. In postponing " account," I postponed that head of equity in which, more than in any other, we seek in vain for a weU^ defined boundary between the concurrent and the auxiliary jurisdiction. Consider generally how the matter stands in refer- ence tQ definition of jurisdiction under the three great divisions : viz., the exclusive, the concurrent, and the auxiliary. There is ordinarily not much difficulty in determining whether a particular case is one falling within a head of exclusive jurisdiction. Trust, mort- gage, administration of estates of testators and intes- tates, are heads of equity whose featm'es are not easily mistaken. So the particular heads of concurrent jurisdiction explained in my fifth lectm'e, viz., Fraud, Accident, Mistake, Partnership, Specific Performance^ Dower, and Partition, are definable with tolerable accuracy. As respects the third division, the auxiliary, that, if^ you recoUect, was in my sixth lecture subdivided into two classes, the first that in which the operations of Digitized by Microsoft® LECTURE VIII. 243 the court were strictly ancillary, such as discovery and perpetuation of testimony ; and the second, that in which the court exercised a controlling and superintend- ing rather than an ancillary jurisdiction, as in bills of peace and bills to establish wills. Now, the jurisdiction of the equity courts in cases of the latter class may, I think, be said to have been defined with sufficient distinctness by the description given of it ; and, as respects the former class, where the jmisdiction is merely ancillary, no attempt at definition will be requisite. For, if a case be one neither calling for the auxiliary jurisdiction of the court in the superintending or controUing sense, nor falling within any head of exclusive or concurrent juris- diction, then necessarily the general remedy lies at law only, and the interference of equity can be invoked merely as that of a handmaid. Summing up, then — 1. We have defined the exclusive jurisdiction. 2. We have defined the concurrent jurisdiction, except account. 3. We have defined the latter class of auxiliary juris- diction, viz., the controlling or superintending ; and the former class, viz., the ancillary, if ovu' definition be otherwise completed, needs none. Consequently, if we can define the limits of the equitable jurisdiction in matters of " account," our task wOl have been substantially completed. But some of you may ask, Of what practical im- portance is the completion of this task ? Assuming the existence of a right to sue at law, what matters it K 2 Digitized by Microsoft® 244 LECTUEE VIII. to the injured party whether he have or not a cumu- lative remedy in the equity court ? My answer is, it matters in two ways — 1. In reference to discovery. 2. Insofar as the head "account" is concerned, iu reference to the machinery for taking accounts. And, first, m reference to discovery. Previously to the existence of the powers of discovery recently con- ferred on the common law tribunals, it was of the utmost importance where an injured party required a discovery from his opponent that he should, if possible, bring his case witliin some head of equity, so that he might sue in Chancery rather than at law ; for, if his remedy were at law only, he was still obhged to appeal to the ancillary jurisdiction of the equity court, and file his bill for discovery ; and this, as I pointed out in mjr sixth lecture, he could do only at his own ex- pense {a). Again, the answer to the bill of discovery was in the common law court viewed strictly and technically as an admission ; and, therefore, if the party seeking dis- covery required to use any portion of his opponent's answer in support of his own case, or in disproof of his opponent's, he was compelled to put the whole in evidence. He Avas not allowed to use the answer as an admission of any fact, however simple and discou' nected from the other statements in it, without maMng the whole answer evidence. The party answering was thus, so to speak, enabled to give evidence in his own favour. (a) p. 176, supra. Digitized by Microsoft® LECTURE VIII. 245 In the equity tribunals, on the other hand, in the case of a bUl for relief as well as discovery, the more rational system prevailed, and still pre- vails, of allowing the plaintiff to read any selected portions of the answer as admissions, provided only nothing was or is excluded fairly quahfying or bearing upon the particular portions of the answer read (a). Whether then we consider the terms in reference to costs upon which alone discovery was obtamable in aid of an action or defence at law, or those upon which the discovery itself might be used after it had been ob- tained, the advantage of a resort to the concurrent instead of to the auxiliary jurisdiction of the court equally appears ; and I may observe that the practice under the new jurisdiction, enabling courts of law to compel discovery, while equalizing in other respects the advantages of suing at law and in equity, still leaves untouched the rule of evidence just commented on. It is, I believe, clear that at law, if you read any part of an opponent's affidavit in answer to interro- (a) Singularly enough, until the year 1841 the rule in equity, in reference to reading the answer to a cross hill for discovery only, was the same as at law, i.e., the whole must be read if any part was. (See Lady Ormond v. Hutchinson, 13 Vesey, 47 ; and 16 Vesey, 94.) However, by the 42nd Order of the 26th August, 1841 (now Consol. Order xix. rule 6, the bracketed words being added), answers to bills of discovery were put on the same footing in equity as those to bills for relief. The order is in these words : — "Where a defendant in equity files a cross bill for discovery " only against the plaintiff in equity [or exhibits interrogatories for his " examination], the answer to such cross bill [or interrogatories] may be " read and used by the party filing such cross bill [or exhibiting such ' ' inteiTogatories] in the same manner and under the same restrictions as " the answer to a bill praying relief may be read and used." Digitized by Microsoft® 246 LECTUEE -VIII. gatories filed under the new practice, yovi must read the whole. But, secondly, I intimated that the definition of the limits of the concurrent equitahle jurisdiction in mat- ters of account was of practical importance, in conse- quence of the difference existing at law and in equity as respects the " machinery for taking accounts." The state of the case on this point is briefly as foUows : — In equity, accounts are taken by the court itself or by its judicial officers. At law, as you will presently learn from the short outline of legal remedies which I am about to attempt, actions involving matters of ac- count commonly result in arbitrations, and the accounts are thus commonly taken by an arbitrator; that is to say, a judge selected by the parties litigant, who have at their own expense to provide, so to speak, their judge's salary and a court for him to sit in. Having thus pointed out the practical importance of defining the true limits of the equity jurisdiction in " account," I propose, as a preliminary to the more immediate task of definition, giving a short outline of the general history of the remedies afforded at law in matters of account. At common law a writ of "account" lay against two classes of persons, viz. : — 1. Against those standing in a situation (not amounting exactly to trusteeship, but) of a quasi fiduciary • kind recognised by law, as bailiifs, re- ceivers, or guardians in socage. 2. By merchant against merchant. In this action there were three stages. The first, Digitized by Microsoft® LECTUEE VIII. 247 that in which it was decided whether the defendant should account or not ; and if decided in the affirma- tive, the judgment was, that the defendant do account, q;uod computet: this stage answered to the original hearing in equity. The second stage at law was the actual taking of the accoimt, which was there done before auditors appointed by the court : this corres- ponded to the taking of the account in the Masters' Office, or, as under the new equity practice, by the ■chief clerk. The third stage at law was the judg- ment for the amount found due, analogous to the order on further directions or fm-ther consideration (a). But though the analogy between the two procedures was so close, the jurisdiction at law by action of accomit languished and ultimately fell into desuetude, while that in equity by bill flourished and became firmly Tooted. These very different results may be ascribed to two causes: namely, first, the limited appKcability of the action, and its consequent absorption, if I niaj"- be allowed the expression, into the arbitration system ; and secondlj', the imperfect powers of compelling dis- covery possessed by the common law courts. And first, as respects the hmited range of the action -of account. We have akeady seen that either a quasi fiduciary relation between the parties, or that of merchant towards merchant, was necessary to found the action. Flowing from this notion of the necessity of a fiduciary j-elation, we find that at common law the action lay (a) See p. 96, supra. Digitized by Microsoft® 248 LECTUEE VIII. neither in favour of the personal representatives of the person claiming the account, nor against the personal representatives of the accounting party. The 13th Edward I., cap. 23, however, remedied the former of these defects, and the 4th Anne, cap. 16, s. 27, the latter : which last enactment also gave an action of account to one joint-tenant or tenant in common against a co-tenant who should receive more than his own share of the rents and profits (a).1 But it was then too late to infuse any suhstantial vigom* into the declining action. It had already heen supplanted at law by a rival which has since attained vast growth — I mean, " arbitration.'" The practice of reference to arbitration appears to have formed part of the common law system from a very early date. If you turn to EoUe's Abridgement, under the head of " Arbitrement," a very cm'sory in- spection will satisfy you on this point. You will find there and in the Year Books numerous questions dis- cussed in reference to awards during the reigns of the 3rd and 4th Edwards, and of the intermediate Henrys- Some of them exhibit in a somewhat quaint form the workings of an already highly technical system. Thus it was considered that an award, to be good, must possess a certain quality of mutuality, and that the act awarded to be done must appear to be for the satisfac- tion of one party and in discharge of the other. Hence, in a case of the 9th Edward IV. in the Year- Book, Choke J. says by way of illustration, with some apparent want of gallantry : " If a man and a woman (a) See note a, p. 156, supra. Digitized by Microsoft® LECTURE VIII. 249 " submit to ai-bitration, and the arbitrator do award " that they shall intermarry, this shall be intended to " be no advantage, &c." But perhaps he had present to his mind an imaginary case of an action for breach of promise by the ladj', in which case his respect for the sex would be saved whole. But, further, and this is more to our immediate pur- pose, the Year Books disclose symptoms of incipient encroachment on the action of account by arbitration at so early a date as the reign of Henry V. Thus, in Eolle at Arbitrement R. we have : " Un action d'ac- " compt poet estre submit al agard et I'arbitrators " poient faire un agard de ceo, car ceo est uncerten."(fl). Passing on at a stride some three hundred years, there can be little doubt that one of the most impor- tant branches (if not the most important branch) of arbitration business at the early part of the eighteenth centxuy was the adjustment of accounts. This may be collected from the well-known Act of William the Third's reign, which still forms the foundation of the arbitration system (b). That Act, after a short preamble pointing out the advantages of references to arbitration by rule of court, continues thus : "Now for promoting trade and ren- " dering the awards of arbitrators the more effectual in " all cases for the final determination of controversies " referred to them by merchants and traders or others, " concerning matters of account or trade, or other " matters, &c. ; " and then the Act proceeds with its enactments, which it is not material for me to notice. (a) 2 Henry V. 2. (i) 9 & 10 Will. III. cap. 15. Digitized by Microsoft® 250 LECTURE VIII. My concern is with the preamble, the inference from which is, I think, pretty strong, that at the date of the Act arhitration had begun to take the place of the action of account ; and when we consider that the latter action with its procedure before auditors was limited in its operation, while " arbitration " was avail- able wherever an ordinary action at law lay, it seems to be a natural result that the procedure of larger ap- plication should gradually become more and more imderstood, and shoidd supersede that of more limited tise. In fact, the question being, Should an ordinary action at law be brought with a view to proceeding by arbitration, or should an action of accomit be brought which would be prosecuted before auditors ? the answer was in favour of the course calculated to result in the better understood of the two procedm-es. Finally, the procedure before the auditors was subject to the special disadvantage that a vast number of sepai-ate issues respecting the payment or receipt of any particular " items " of account might be raised by either party, who might claim as of right to have them determined by a jury ; a course which, when pursued, must necessarily have led to great expense and delaj' ; and this circumstance would naturally cavise a preference to be given to arbitration {a). But, secondly, we may regard as one of the causes of the decline of the action of account the imperfect powers of compelling discovery possessed by a court of law as contrasted with a com-t of equity. This (a) Lord Hardwicke, indeed, attributed to this cause the decline of the action of account ; see Ex parte Bax, 2 Vesey, Sen. 388. Digitized by Microsoft® LECTURE VIII. 251 indeed appears to liaye been considered by Mr. Justice Blackstone to have been the sole cause of the declme. He says : — " But, however, it is found by experience ■" that the most ready and effectual way to settle these "" matters of account is by bill in a court of equity, ^' where a discovery may be had on the defendant's " oath, without relying merely on the evidence which " the plaintiff may be able to produce " (a). This statement might be acce^ited as correct if we were able to show you, as we proceed further in our lecture, a perfect jurisdiction in equity in aU matters falling within the scope of the old action of account. But the truer view is, I think, that arbitration and equity •divided between them the old common law jurisdiction in " aceomit ; " and in reference to the imperfect powers of discovery aUuded to by Mr. Justice Black- stone, it must be borne in mmd that the imperfec- tion was partially (6) remedied" by the section of the 4th Anne, cap. 16, before referred to, which, in its eiforts to revive the drooping jurisdiction, conferred on the " auditors " in the action of account power to ad- minister an oath and examine the parties touching the matters in question. In connexion with this question of the imperfect powers of the common law courts to compel discovery, let me recommend you to look at one of the ordinary (a) BI. Com. vol. iii. p. 164. (J) See Wheeler v. Home, Willea, 208, in which case aa opinion is distinctly expressed that these powers of the auditors exist only when the action is brought under the Act. The results would be singularly anomalous. The auditors would have power to examine the executors of a bailiff, but not the bailiff himself. Digitized by Microsoft® 252 LECTUEE VIII. forms of reference to arbitration appended to Russell on Arbitrations, or Watson on Awards. There you find the arbitrators invested with authority to examine the parties, to call forth the production of papers; in fact, to exercise those powers which give to the jurisdiction in equity its peculiar value. The common law arbitration system is, indeed, a happy instance of engrafting a scion of equity practice on the stock of common law jurisdiction ; and much has been done by the Legislature in aid of the efforts of those en- gaged in the practical working of the law (o). The infirmity of the arbitration system lies in the cu-cum- stance already adverted to — that the fees to the arbi- trator, and frequently the expense of the place in which his sittings are held, fall upon the litigant par- ties. They pay, as I said, for their own judge, and provide their own com't. And now I reach, &t last, the particular object of my lecture, viz., the equity jurisdiction in account. To allot nearly one-half of a lecture to mere introduction seems out of due proportion ; but my task is to convey accurate elementary knowledge, and this cannot possibly be done without exhibiting side by side the workings of those two great systems, law and equity, which together constitute our jurispi'udence. Well, then, what jurisdiction has equity in matters of "accomit?" that is to say, neglecting all those heads of exclusive or concm-rent jurisdiction where account is an adjunct more or less frequent, in what (a) See 3 & 4 Will. IV. cap. 42, ss. 39, 40, & 41 ; 17 & 18 Tict. cap. 125, ss. 3 to 17. Digitized by Microsoft® LECTURE VIII. 253 cases may a bill in equity be filed merely to obtain an account (a) ? This brings me at once to the consideration of a ground or supposed ground of equity jm-isdiction fre- quently referred to both in the Reports and by the text writers. The most concise statement of the principle is that of Lord Nottingham in the case of Parker v. Dee (b), frequently referred to, and adopted verbatim by Mr. Ballow in the treatise on equity commonly quoted as " Fonblanque on Equity." In that case, the defendant's counsel urging that the suit in equity ought to be dismissed, because the plaintiff had ob- tained a discovery and might go on at law, his lordship said : — " As for dismission to law because the plaintiff ^' hath discovery here, when this court can determine " the matter, that shall not be a handmaid to other *' coui'ts, nor beget a suit to be ended elsewhere." It is obvious that if the principle here laid down had been carried out to the full, the ancillary jurisdic- tion of the court- could never have existed. Every plaintiff requiring discovery would have said, "lam " obliged to come for discovery ; give me relief also ; " and the court must have answered, " We will do so." The equity jurisdiction would then practically have (a) There is a remarkatle order of Lord EUesmere, 11th October, 1614, which shows that at that date the Chancery jurisdiction in "account' was discountenanced upon the very ground to which Sir William Black- stone attributes the growth of the jurisdiction, viz., the power of dis- covery upon oath. It is as follows: — "Marchants' accompts and such ' ' like are not to be examined in the Chancery, for none is to acoompt " upon oath but to the king onely. Yet frawd and covyn is to be ■" examined and punished." — Sanders* Orders in Chancery, vol. i. p. 86. (6) 2 Chancery Cases, 201. Digitized by Microsoft® 254 LECTURE VIII. been unbounded, for it is hard to suppose a case in. ■which some facts requiring proof by the plaintiff in equity would not be within the knowledge of the defendant, and the extent to which discovery was actually needed by the plaintiff could hardly have been brought to any accurate test. The principle thus largely stated would have applied equally to an action of assumpsit for not acceptiug goods, as to a case of intricate and complicated accounts. It may seem needless to say that no principle capable of such general application exists ; yet even so recently as the time of Sir Thomas Plumer we find that learned judge adverting to the supposed principle in language almost as general as that of Lord Nottingham. Thus, in the case of Ryle v. Haggle (a) his Honour says : " When it is admitted that a party comes here pre " perly for the discoverj', the court is never disposed " to occasion a multiplicity of suits by making him go " to a court of law for the relief." The rational course, if I might without presumption express an opinion, would, as it seems to me, have been for the equity court to have assumed concurrent jmisdiction in all those cases where a plaintiff came alleging his need of discovery, and where, having re- gard to the nature of the case, trial by an equity judge afforded a convenient mode of determination ; and to have limited itself to the office of handmaid whenever trial bj^ jury and rird voce examination in open court seemed desirable. No such general intelHgible rule of jurisdiction can, (o) 1 Jatob & Walker, 234, see 237. Digitized by Microsoft® LECTURE VIII. 25d however, be traced. The nearest approach ever made to any general statement has been, that " m most " cases of fraud, accident, mistake, and account, where " discovery was needed, the court wouhl not tmni the " plaintiff in equity back to law, but would give rehef " as well as discovery; " and as Mr. Fonblanque, in one of his notes (a) to the " Treatise on Equity," has stated his inability to strilie out the distinguishiiag principle upon which com'ts of equitj"- have proceeded in assuming or declining entire jurisdiction in cases where discovery was needed, I maj^ well be excused the attempt. Eelinquishiag, then, all endeavour to define by means of general prmciple the cases in which equity assumes jurisdiction in matters of account, I will attempt to classify the results of the actual decisions on this head. They appear to be as foUows : — 1. — Equity will assume jurisdiction in favotu.' of a principal against his agent, though not in favour of the agent against the principal. 2. — Equity will assume jurisdiction where there are mritual accormts between the plaintiff and defendant. 3. — It will do so where there are circumstances of special compHcation. First then — A biU for an account will lie m equity by a principal against his agent. This proposition was first distinctly laid down by Sh' John Leach, to whose short, terse judgements we owe many bold enunciations of principle, of which not a few have (a) Book VI. ch. iii. s. 6, note r. Digitized by Microsoft® 256 LECTURE VIII. ield their ground. I refer now to the case of Mac- kenzie V. Johnston (a). In that case the plaintiff had agreed with Johnston and Meahurn, owners of a vessel, to ship earthenware to Bomhay, to he sold there on their account, and the shipment had been made. The biU was against Johnston and Meahurn for an account : they demurred. The Vice-ChanceUor's judgement is as follows : — " The defendants here were agents for " the sale of the property of the plarntiflf, and wherever " such a relation exists a bill will lie for an account; " the plaintiff can only learn from the discovery of the " defendants how they have acted in the executionof " their agencj', and it would be most unreasonable " that he should pay them for that discovery if it " turned out they had abused his confidence ; yet " such must be the case, if a bill for relief will not "Ke. In this pithy judgement we find, you will observe, not merely the broad enunciation of the rule, but also dis- tmct indications of the grounds on which it stands. The facts are, in general, exclusively within the know- ledge of the agent ; the principal therefore usually re- quires discovery, and if a bill for relief did not lie, he could obtain discovery only at his own expense. You should note further the single word " confidence," re- ferring to the fiduciary relation between the parties, which forms a distinct ground for supporting the juris- diction in equity (b). Sir John Leach's proposition (a) 4 Maddock, 373. ' (6) Lord Justice Turner -would seem, indeed, to consider this the prin- cipal ground. See the extract from his judgement in Padwick v. Stanley, Digitized by Microsoft® LECTURE VIII. 2o7 must, I consider, be viewed as 'sound law in all its breadth. Some difBeulty, no doubt, occurs occasionally in determining Avhether the particular relation of prin- cipal and agent does exist between two parties. One of the best illustrations of this will be found in the conflicting opinions which long obscured the relation between banker jind customea*, and in the litigation which resulted in the final settlement of the law on that point ; and, as the general importance of the question makes it doubly interesting, I will briefly review its historJ^ There can be little doubt that the popular notion for a long time was, perhaps still is, that the banker stood towards his customer in the jposition of a kind of trustee or agent. People talis; indeed even now of having so much money in Coutts's or at Hoare's, with a kind of belief that the banking firm holds the money as a depositary only. But, further, the true view on this point has only been settled amongst lawyers within the last twelve years. Thus, in the case of Boiules V. Orr (a), Lord Abinger, C.B., in 1835, thus expresses himself: " It appears to me that a customer " who trusts his banker with a fund, is justly entitled " to call on Ms banker for an account of it, and that giyen at p. 259, infra. And see, also, Barry v. SteTens, 31 Beavan, 258, and tlie judgement of Lord Hatherley in Moxon v. Bright, L. K. 4 Oh. App. 292, where his lordship ruled that the mere existence of the relation of principal and agent was not sufficient to sustain a bill by the former for an account unless the agent held a fiduciary position. (a) 1 Tonnge & CoUyer's Exchequer R. 474. s Digitized by Microsoft® 2.j8 lecture VIII. " the banker by receiving it becomes his agent, and " accountable to him for it." You find in these words both the expression of the popular view that the banker was an agent, and also a reference to the consequence which would have fol- lowed had that view been correct, viz., that a bill for an account would have lain in equity ; however, in the case of Foley v. Hill, which cause jcame first before the late Vice-Chancellor of England, then before Lord Lyndhurst on appeal, and ultimately before the House of Lords, the relation between banker and customer Avas decided to be that of debtor and creditor merely, and a bill for an account by the latter against the former was dismissed. In the first instance the Vice-Chancellor of England, when the case came before him, decreed an accounti Lord Lyndhurst, on appeal (a), dismissed the bill, using in the course of his judgment the foUowing words : " It is quite clear that a banker is not to he " considered a trustee for his customer in the legal " sense of the term. Money advanced by a customer " to a banker is a loan, and constitutes a debt." Upon appeal to the House of Lords (b). Lord Lyndhurst's views were afiirmed by Lord Cottenham, Chancellor, Lord Brougham, and Lord Campbell ; and, the fidu- ciary relation failing, the bill for an account, notwith- standing an attempt to sustain it on the distinct (o) See 1 PhUlips, 399. (6) See 2 House of Lords Cases, 28, also Pott v. Clegg, 16 Meeson & Welsby, 321 ; Jackson v. Ogg, Johnson, 397. Digitized by Microsoft® LECTURE VIII. 259 ground of complicatioa, apart from the fiduciary rela- tion, failed also. Next, although a principal may file a bill against his agent, it is clear that an agent cannot do so against his principal. The decisions are distinct on this point (a), and the absence of reciprocity in this respect is, haying regard to the grounds for the juris- diction in favour of the prmcipal against the agent, as indicated by Sir John Leach, consistent with sound principle. For, first, the agent has commonly all the knowledge requisite to support his rights, and requires no discovery; and, secondly, the agent reposes no special confidence in the principal. The present Lord Justice Turner, in a case which came before hira when Vice- Chancellor (6), expressed himself on the question of reciprocity as follows : "It " was then said that this was a case of prmcipal and " agent; and that if the principal may file a bill " against his agent, the agent may file a bill against " his principal ; but I cannot admit that the rights of. " principal and agent are correlative. The right of " the principal rests upon the trust and confidence " reposed in the agent ; but the agent reposes no such ■" confidence in the principal." (a) Allison v. Herring, 9 Simons, 583 ; Padwick v. Stanley, 9 Hare, •627. — See, also, Smith r. Leveaux, 1 Hemming & Miller, 123 ; o. u. on appeal, 33 Law Joumal (N.S.) Chanc. 167, 2 De Gex, Jo. & Sm. 1, in ■which the general rule was treated as settled, Lord Hatherley, then V.-C. Wood, holding, however (though his decision in this respect was reversed by the Lords Justices on appeal), that an exception ought to be made in a case where there had been receipts by the principal, of the particulars whereof the agent was ignorant, and on which a commission was payable to the latter. (h) Padwick v. Stanley, 9 Hare, 627. s 2 Digitized by Microsoft® 260 LECTURE VIII. But whatever the grounds, the result is certain. A bill does He by principal against agent, but not by agent against principal, for an account. Secondly — Equity will assume jurisdiction where- there are mutual accounts between the plaintiff and defendant. Perhaps I ought to have said that the better opinion seems to he to this effect ; for in reference to this, as indeed in reference to other questions arising upon the equity jurisdiction in matters of accoimt, the authorities are mainly agreed on one point only, viz.,, the extreme difficulty of defining the jmisdiction. The nearest approach to a systematic definition of the equity jurisdiction in cases of mutual account is that contained in the judgement of Lord Justice (then Vice- Chancellor) Turner, in the case of PhillipsY. Phillips {a). His lordship in that case, in allowing a demm'rer to a bill for an account, expressed himself as follows : " I " have no doubt that this biQ cannot be maintained.. " I take the rule to be, that a bUl of this nature will " only lie where it relates to that which is the subject " of a mutual account ; and I understand a mutual " account to mean, not merely where one of two parties " has received money and paid it on account of the " other, but where each of two parties has received and " paid on the other's account. I take the reason of that " distinction to be, that, in the case of proceedmgs at " law, where each of two parties has received and paid " on account of the other, what would be to be recovered "would be the balance of the two accounts; and the " party plaintiff would be required to prove, not merely (o) 9 Hare, 471. Digitized by Microsoft® LECTURE VIII. 261 "" that the other party had received money on liis ■" account, but also to enter into evidence of his o-vvn ■" receipts and payments — a position of the case "" which, to say the least, would be difficult to be " dealt with at law. Where one party has merely " received and paid moneys on account of the other, " it becomes a simple case. The party plaintiff has " to prove that the moneys have been received, and " the other party has to prove his payments. The " question is only as to the receipts on one side and " the payments on the other, and it is a mere question " of set-off; but it is otherwise where each party has " received and paid." The ride here laid down is, I should have considered, reasonably clear and free from objection ; but his Honour Vice- Chancellor Kindersley seems on a recent ■occasion to have placed a different construction upon the judgement of Lord Justice Tm-ner from that which appears to me the obvious one, and indeed to have denied altogether the efficacy of mutuality of accoimts as a ground for equity interposition. I aUude to the case of Fluker v. Taylor. In his judgement in that <;ase, the Vice-Chancellor, though not expressly men- tioning Phillips V. Phillips, evidently refers to it in the following observations (a) : " It is difficult to lay down " any fixed rule which goes to mark out the line " between those cases where an account must be taken " in equity and where it need not. An attempt has " been made to lay down such a rule by saying the (a) See 3 Drewiy, 191. Digitized by Microsoft® 262 LECTURE VIII. ' accounts must be mutual, that there must he receipts ' and payments on both sides. ' But it really appears' to me that it would be dangerous. ' to lay down the rule in any siich terms. For, take ' the common case of any gentleman of fortune keeping^ ' a mere money account, not a business account, with ' his banker : he pays money to the banker and the ' banker pays his cheques ; that is mutual receipt and ' payment ; the banker receives money from the cus- ' tomer and pays cheques to the customer ; and the ' customer pays money into the banker's and draws ' money out. If the rule were as stated, such a case- ' would fall within it, while it is clear in such a case no ' bill would lie (a). It is therefore dangerous to say the ' equity depends on mutual receipts and payments; ' the equity must depend in each case on the nature ' of the account ; it depends on this, whether the ' account is in its own nature, not merely from the ' number of items but from its own nature, so comph- ' cated that this court will say such an account cannot ' be taken in a coiu-t of law." Notwithstanding the great weight due to any obser- vation falling from so careful a judge, it is difficult not to feel that the doubts here expressed by him are out- weighed by the judgement of Lord Justice Turner, and by the distinct expression of opinion on the part of Lord Eldon in the leading case of Dinwiddle v. Bailey (6), who says, in sj^eaking of the equity jurisdiction iii {a) See p. 258) supra. (S) 6 Vesey, 141. Digitized by Microsoft® LECTUKE VIII. 263 aecotmt, " there must be mutual demands forming "the ground;" and it may, I thinli, be safely laid down that whether Lord Justice Tm'ner's definition of " mutual accounts" ultimately prevail or not, " mutual " accounts " will remain firmly fixed as a ground of equity jmisdiction in account {a). Thirdly — Equity will assume jurisdiction z(/7jere there are circumstances of special complication. Here, again, both the decisions and dicta create a distressing uncei'tainty as to the nature and extent of complication requisite to found the equityjurisdiction. In the leading case of O'Connor v. Spaight {b), Lord Eedesdale,[in a passage of his judgement which is fre- quently quoted on this point, uses the following lan- guage : " The ground on which I think that this is a " proper case for equity is, that the account has become " so complicated that a court of law would be incom- " petent to examine it upon a trial at Nisi Prius with " all necessary accuracy, and it could appear only from " the result of the account that the rent was not due (c). " Thisis a principle on which courts of equity constantly " act by taking cognisance of matters which, though " cognisable at law, are yet so involved with a complex " account that it cannot properly be taken at law; and " until the result of the account, the justice of the case " cannot appear." (a) See the observations of Lord Chelmsford in Scott v. Corporation of Liverpool, 3 De Gex & Jones, 359. (5) 1 Schoales & Lefroy, 305. (c) The question upon which the fate of the litigation between the plaintiff and defendant hinged was, whether any rent was in fact due. Digitized by Microsoft® 2G4 LECTURE VIII. Lord Eeclesdale's observations, if they could witli safety be accepted as a correct representation of tlie doctrine of the court as to complication, would furnish a broad intelligible rule. In every case the question ■would simply be. Could the accounts be taken at Nisi Prius, or would the common law judge, either before trial under the special power conferred by the Pro- cedure Act of 1854 (a), or by moral coercion upon the cause coming on at Nisi Prius, compel a reference to arbitration? Nor are Lord Kedesdale's views unsupported by other dicta. In the case of the Taff Vale Eailway Companij v. Nixon (b) — in which, as I shall presently endeavour to show, the special facts were such as clearly to make the case a fitter one for equity than law — you will find, first, Lord Cottenham referring with approbation to the rule as laid down by Lord Eedesdale, and then Lord Campbell expressing him- self as follows : — " I do not proceed merely upon the ground which is " stated in the case as having been taken by his " Honour the Vice-Chancellor; I proceed upon this " ground, that here is a complicated account that (o) 17 & 18 Vict. cap. 125, s. 3 — See Croskey v. European, &c., Shipping Company, 1 Johnson & Hemming, 103, in which (while holding, in accordance with the well-established doctrines of the Court, that the new Common Law jurisdiction had not impaired the jurisdiction of the Court of Chancery) Lord Hatherley, then V.-C. Wood, intimated that the mere circumstances of a plaintiff at law giving notice of his intention to move for a reference to arbitration amounted to an admission that the Court of Equity was the proper jurisdiction. (b) 1 House of Lords Cases, 111. Digitized by Microsoft® LECTURE VIII. 26-5 " could not by possibility be taken by a jurjr. The ^' facts of the case, as stated by my noble and learned " friend on the -woolsack, very clearly show that it " would be a mere mockerj^ to bring such an action " before a juiy. What would be done if such an action " were brought at Nisi Prius ? I know that witMn " five minutes from the opening of the case by the " leading covmsel for the plaintiffs, the judge would " say, ' If we sit here for a fortnight we cannot try " this sort of case ; and, therefore, it is indispensably " necessarjr for the sake of justice — not to save us from " the trouble of trj^ing the case, which we are perfectly *' willing to take — but for the sake of justice, that " there should be a reference to an arbitrator who will *' take accounts between the parties.' " Lord Brougham again, following Lord Campbell, sj)oke thus : — " My Lords, I rise only to mention a " circumstance which my noble and learned friend " reminds me of, that it was formerly so much a " matter of course, when cases of this sort came " before us at Nisi Prius upon the northern circuit, " to refer them to arbitration, that we invented a " phrase for it at consultation, the meaning of which " was, that it could not be tried, and that the leading " counsel for the plaiiitiff would what is commonly " called ' open a reference.' Now, the course ought " to be a bill in equity ; that is clearly the best " remedy." But notwithstanding these strong observations, it would be dangerous to lay down that the mere cir- cumstance that the case is clearly one for an arbitra- Digitized by Microsoft® 266 LECTURE VIII. tion would be sufficient to found the jurisdiction in equity. It is easy to conceive a case in wMcli, owing not to any special complication, but merely to the large amount claimed and the great number of items- Lord Campbell's observations point to a case of this sort — a reference to arbitration would be a matter of course ; not in consequence of the inability of a jury to take the account, but because of the waste of time on the part of judge, counsel, and witnesses, wholly disproportioned to any resulting advantage. Now it certainly cannot be said that the jurisdiction of the Equity Coiu't to entertain an account in cases of this sort, is established. On the contrary, in the case of the South-Eastern Railway Company v. Martin {a), in which an action had been brought by smweyors and engineers against a railway company to recover the balance of an account containing some four hundred items of charge and discharge, Lord Cottenham him- self, while refusing to stay the action by injunction, made the following remarks upon the Taff Vale Bail- way Case. He said : " The observations of two noble " Lords ia the House of Lords, in the case of the Taff " Vale Railway Company v. Nixon " (his Lordship here evidently refers to Lord Campbell and Lord Brougham, forgetting, apparently, his own general approval of Lord Eedesdale's views), "have been " referred to as expressing opinions, that accounts " ought to be decreed in all cases in which references " would be pressed at Nisi Prius ; I apprehend that (a) 2 Phillips, 758 (where the plaintiffs are incorrectly called the i\'o)-//i-Eastern Railway Corarany), and 1 Hall & Twells, 69. Digitized by Microsoft® LECTUEE VIII. 267 " those observations were not intended to intimate any " such, rule or opinion, but were intended only to " exemplify the great difficulty in dealing with such " cases at law." Further, in the case of Phillips v. Phillips, already referred to, Lord Justice (thenVice-ChanceUor) Turner expresses himself thus (a) : " It is true that a case " of mere receipts and payments may become so com- " plicated, as Lord Cottenham said in the case of the " Taff Vale Baihvay Company, that the account cannot " be taken at law, and may properly become the sub- " ject of the jurisdiction of a court' of equity. But " when the account is on one side only, I think a " strong case must be shown before this court will " exercise its jurisdiction. If the door of this court " be opened to every case in which accounts would " not be taken in an action at law, but a comi; of law " would send them to a reference, I do not know " where there would remain anj^ protection agaiust " suits in equity to parties between whom any account " existed." On the whole, while regretting that the broad intelli- gible rule laid down by Lord Eedesdale should not be clearly established, it is impossible to treat it as havmg attained the force of law. What, then, to recur to our original proposition, is the nature and extent of complication requisite to found the equity jurisdiction ? The question can only be answered vaguely and imperfectly by instances. There can, I consider, be no doubt that where there (o) 9 Hare, 473. Digitized by Microsoft® 268 LECTURE VIII. are complicated questions of account between A, B, and C, three parties having distinct interests — where, in fact, the case approaches what might be called, in the language of a late nautical novelist, a triangular duel — a court of equity will interfere. The Tqff Vale Railway Case, before alluded to as having elicited from Lord Cottenham, Lord Campbell, and Lord Brougham a general ajpprobation of Lord Redesdale's views, was one of this class, and needed no such broad general principle as that of Lord Redesdale to warrant the decision of the House. There Nixon, a railway con- , tractor, contracted with the Taff Vale Railway Company to execute certain works. Subsequently he entered into an agreement with Storm, another contractor, to supply him with funds to enable him to fulfil his con- tract. Later stiU, Nixon and Storm jointly entered into a new contract with the Company, and then Storm became bankrupt. Various complications arose in reference to the respective rights of Nixon and of Storm's assignees ; and it was held that under these circumstances a bill would He by Nixon against the Railway Company. The case of the South-Eastern Railway Company v. Brogden (a), the facts of which are too complicated to admit of my now laying them before you, will show you what particular circumstances were, and what were not, considered by Lofd Truro sufficient to warrant the interposition of equity in matters of account ; and his lordship's judgement in that case is particularly valu- (a) 3 Maou. & (Jor. 8 — and see Southampton Dock Co. v. SouthamptOtt Harbour & Pier Board ; L. R. 11 Eq. 254. Digitized by Microsoft® LECTURE VIII. 269 able, as pointing out and dwelling upon the import- ance of the distinction between a court of equity as- suming a jimsdiction in matters of account, and its interfering by injunction to withdraw a matter in which an action has been commenced from the legal juris- diction. You will do well to classify carefully, with reference to this distinction, the authorities which I have this evening mentioned. Thus, in Mackenzie v. Johnston, Foley v. Hill, Allison v. Herring, and Pad- wick V. Stanley, all referred to under the first ground of jurisdiction {a), the question simply was, Should equity give an account ? So as respects Phillips v. Phillips (b), under the second head. In Fluker v. Taylor, referred to under the second head (c), and in all the cases which I mentioned under the thu'd head, except that of the Taff Vale Railway, the assistance of the court was invoked to sta}^ proceedings at law. There can, I think, be little doubt but that the dis- tinction pointed out by Lord Truro will, m the course of the further development of oiu- equity system, be- come a marked feature in that portion of it which relates to " accoiMii." The difference between afford- ing to a suitor, who prefers coming into equity, the beneficial aid of the court, and interfering to withdi'aw a matter from law merely because the litigation there will probably result in a reference to arbitration, is immense. Nor should it be forgotten that since Lord Eedesdale's observations in O'Connor v. Spaight were uttered, the powers and facilities of dealing with ac- (a) See pp. 256, 258, 259, supra. (S) p. 260, supra, (c) pp. 261-2, supra. Digitized by Microsoft® 270 LECTURE vm. counts at common law, by way of arbitration, have greatly increased (a) ; and though, according to the well-known rule (&), this circumstance cannot be viewed as having in the slightest degree diminished or affected the equity jurisdiction, it may well influence the judge where the question is not as to exercising jurisdiction in equity, but as to staying proceedings at law. Finally, except as regards my first head of equity jurisdiction in account, that, namely, which is grounded on the relation of principal and agent, I find myself reluctantly compelled to say, in conclusion, that my observations of this evening must be viewed as beacons pointing out shoals and quicksands rather than as landmarks guiding you to safe havens. It is now not quite ten years since (c), that Lord Cottenham, in the case of the South-Eastern Railway Company v. Martin {d), used the following words : — " The jurisdiction in matters of account is not exer- " cised, as it is in many other cases, to prevent injus- " tice wliich would arise from the exercise of a pm'ely " legal right, or to enforce justice in cases in which " courts of law cannot afford it ; but the j mis diction is " concurrent with that of the courts of law, and is " adopted because, in certain cases, it has better means " of ascertaining the rights of parties. It is therefore " impossible with precision to lay down rules, or estab- " lish definitions, as to the cases in which it may (a) See p. 252, note {a), supra. {b) See p. 182, supra, (c) i.e. from 1S58. 0) 2 Phillips, 758 ; see p. 762. The report at 1 Hall v. Twells, p. 73, varies slightly. Digitized by Microsoft® LECTOKE VIII. 271 " be proper for this court to exercise this jurisdiction. " The infinitely varied transactions of mankind Avould " be found continually to baffle such rules, and to " escape from such definitions. It is therefore neces- " sary for this court to reserve to itself a large discre- " tion, in the exercise of which due regard must be " had, not only to the natiure of the case, but to the " conduct of the parties." I must confess, gentlemen, that I am unable to take so favourable a view as Lord Cottenham did of the un- certainty which exists respecting the equitable juris- diction in account ; an uncertainty which, to the best of my judgment, is both unnecessary and distressing. However, of one thing there is no doubt— the decisions of the last ten years have added little certainty to the doctrines of the court. Our views still remain just as obscure ; and in this obscurity — though cheered some- what, I may perhaps venture to hope, by the faint glimmer of this evening's lectm^e — I am compelled perforce to leave you. Digitized by Microsoft® LECTUEE IX. The subject of this evening's lecture is " Injunction " in cases where the Court exercises an auxiliary/ juris- " diction." This title, and the circumstance that this win be my last opportunity of addressing j'ou on the subject of equity, ahke suggest to me the propriety of a few words of explanation upon a point which might otherwise cause embarrassment to some of you, — ^I mean the want of homogeneity, if I may be allowed the phrase, in the terms used to denote the dififerent heads of equity ranged mider the three principal divisions of exclusive, concurrent, and auxiliary. Most of you have probably heard of what in logic is called cross-division. We may take any number of in- dividual persons or things — ^let us assume the whole of mankind — and classify' them, either 'physiologically into the Caucasian, Negro, Mongol, and other races; or theologically, into Christians, Mahommedans, Bud- dhists, and other religionists ; ov politically, iaio'&'nih&h, French, Prussians, &c. (a). So, as respects equity, vie may take the whole subject and divide it, either, as Mr. Smith does in his Manual of Equity, according to the nature of the relief afforded or of the function (a) See Whately's Logic. Digitized by Microsoft® LECTURE IX. 273 performed by the Court, into Remedial Equity, Execu- tive Equity, Adjustive Equity, Protective Equity, and Auxiliary Equity, or according to the plan which we have ourselves followed. But whether we follow Mr. Smith's classification or our own, we find ourselves considerably embarrassed, as we proceed to the task of subdivision, by the circum- stance that the terms which we are obliged to use to denote our different heads of subdivision bear no rela- tion to our general plan of classification. Thus, trust and mortgage are words referring to the nature of the contract between the parties litigant; fraud refers to a course of conduct imputed by one party to the other ; partition and specific performance to the remedy afforded by the Court ; discovery to certain rules of equity pleading and practice adopted for eliciting truth : and thus the very terms used in describing the heads of equity into which our main divisions have been sub- divided, natui'aUy suggest a different classification from that which we are pursuing ; in fact, a kind of cross- subdivision. Occasionally too it becomes necessary to use in a limited sense the term which has been selected to denote some particular head of equity; as we have done in the case of " account " falling under the concurrent, and " discovery" falling under the auxi- liary jurisdiction. Well, gentlemen, theSe very embarrassments and difi&ctilties exist in regard to the use of the word " injunction " as denoting a head of equity. At first it might seem impossible to use the word for that purpos '.. For what is injunction ? Merely that process of the Digitized by Microsoft® ^ 274 LECTURE IX. Court of Chancery by which, where its aid is invoked, it prohibits the doing of some act which is either un- lawful or in the eye of the Court inequitable. It is a powerful engine of the Court, by which, in a large number of cases, it gives effect to the maxim before aUuded to : " Equity acts in personam " — an engine equally available in the administration of every portion of its jurisprudence. Thus, in a case within the exclu- sive jurisdiction, say of trust, the Court will restrain the trustee by injunction from dealing improperly with the trust fund ; and in a case within the concurrent juris- diction, such as that of account in O'Connor v. Spaight, mentioned in my last lecture (a), the Court will occa- sionally enjoin proceedings at law. But just as in my general review of the auxiliary jurisdiction I took " discovery," which in its general acceptation includes all discovery, however obtainable, and treated of that particular kind of discovery only which concerned the division of jurisdiction then under consideration ; so this evening I shall attempt to group together certain instances of the exercise of the process of injunction which appear to me to faU rather within the domain of the auxiliary jurisdiction of the Court than any other. Now, in considering the subject of "injunction" generally, the cases in which the courts of equity interfere may be conveniently arranged into two .classes, viz. : — First, the cases in which equity interferes to restrain (a} See p. 263, supra. Digitized by Microsoft® LECTURE IS, 275 a person from instituting or contiauing judicial pro- ceedings in some other court ; and, Secondly, cases in which equity iaterferes to restrain the commission of acts either unlawful or wrongful in the eye of a court of equity (a). With the first class of cases we have no immediate concern this evening. In one particular instance only are injunctions of that class connected with the auxi- liary jurisdiction of the court, namely, where a defen- dant at law files a hill of discovery in equity in aid of his defence, and obtains an mjunction to restrain the proceedings at law until his hill is answered. Having regard, however, to the importance of this class of in- junctions, both historically and as illustratiag the priaciples of 'action of the court, some brief notice seems desirable. In cases of this class, whenever a jierson by fraud, accident, or otherwise, has an advantage in proceeding in a court of ordinary jurisdiction which in the eye of a court of equity must necessarily make the ordinary court an instrument of injustice, and it is therefore against conscience that he should use the advantage, the equity court, to prevent manifest wrong, wiU inter- pose by restraining the party whose conscience is thus bound from using the advantage he has improperly gained (&). Equity, in fact, says to the person who is proceeding contrary to equity: " Desist from your pro- (a) This is, in substance, the arrangement adopted by Mr. Drewry, in his work on Injunctions. (6) See Mitford's Pleading, p. 127, whence this statement is taken almost verbatim. Digitized by Microsoft® t 2 276 LECTURE IX. ceedings in the other court, or we will put you in prison" (a). The jurisdiction of the court in decreeing injunc- tions to stay proceedings in other courts, may te traced back to a very early date. Thus, turning to our repertorium of antiquarian knowledge, the Calendars of Proceedings in Chancery, we find various instances of the exercise of this jurisdiction. In the reign of Edward IV. there is- a case of Astel v. Causton, seek- ing to restrain an action in the Common Pleas upon certain bonds (6). In the reign of Eichard III. there is a curious instance of a bill filed to restrain an action brought by a person whom the plaintifis in equity allege to have been a villein regardant to the Manor of St. Giles Tydde, belonging to the Bishopric of Ely, and seeking an injunction, until certain evidences, which had been mislaid by reason of the flight of Morton Bishop of Ely beyond the realm, should' be recovered (c). It could hardly be expected that the assumplion by the Court of Chancery of so large a jurisdiction, would be readily acquiesced in by other courts ; and the Year-Books of the time of Edward IV. afford abundant evidence of the struggle then going on be- tween the common law judges and the Chancellor {d}. (a) See an early case referred to at p. 72, note (a), supra, in vhich the injunction assumed the form of the old subpana, except only that a penalty of lOOOZ. instead of 1001. -was named. (6) Calendars of Proceedings in Chancery, vol. i. p. cviii. (c) Edyall v. Hunston, ib. p. cxiii. {d) See the cases mentioned in Spenoe's Equitable Jurisdiction, Tol. i. p. 671 Digitized by Microsoft® LECTURE IX. 277 The struggle was revived in Henry VIII.'s reign, continued througli that of Elizabeth, and only deter- mined in favour of the Court of Chancery in the time of James I., when the combatants for law and equity were respectively the great Lord Coke on one side, and Lord Chancellor EUesmere on the other (a). Since that time, the jurisdiction has never been seriously doubted ; and by' a recent enactment in the Common Law Procedure Act of 1852 (6), the common law court itself is bound to stay proceediags on production of a writ of injunction awarded in equity (c). The technical reasoning on which the right of the 'Court of Equity to interfere is rested, is probably famihar to most of you. The Equity Court, it is said, interferes in no way with the privileges or prerogatives of the other court ; it merely acts on the person en- joined from suing. The other court has perfect power (a) Campbell's Lives of Chancellors, vol. u. pp. 241 — 245. (b) 15 & 16 Viot. cap. 76, ». 226. The material words of the section are that "in case any action, suit, or proceeding in any court of law or " equity shall be commenced, sued, or prosecuted, in disobedience of or ' ' contrary to, any writ of inj unction, rule, or order of either of th e superior ' ' courts of law or equity at Westminster . . . in any other court than " that by or in which such injunction may have been issued, or rule or order ' ' made . . . the said other court shall stay all further proceedings con- " trary to any such injunction, rule, or order." lu a recent case, Milburn V. The London & South Western Railway Company, L. R. 6 Exch. 4, the Court of Exchequer held the 226th section inapplicable where an injunction had been granted by the Court of Admiralty under a statutory enactment giving to that court the powers conferred on the Court of Chancery by the Merchant Shipping Aol^— a decision grounded, it is conceived, on a literal construction of the words Superior Courts, and contrary, it would seem, to the spirit and general intent of the enactments referred to. (c) And where no writ has actually issued, the Court of Law will stay proceedings after an order for an injunction has been made by the Court of Chancery ; Cobbett v. Ludlam, 11 Exchequer R. 446. Digitized by Microsoft® 278 LECTURE IX. to proceed, thougli certainly, if the suitor moves a step,' he is guilty of contempt towards the Equity Court, and is liable for the consequences. It may be doubted whether this argument would be tolerated for a moment in any analogous case occurring in eyery-day life. Suppose, to put a very weak case by way of illustration, two professors, say of law and equity, at a university, both paid by salaries and teach- ing gratuitously; and imagine one of them advising his pupils not to attend his brother professor's lecture. Could it be contended for a moment, that this con- stituted no interference with the professorial fimctions of the other, merely because the inducement to absence assumed the shape of advice to the pupils ? The case of the common law courts against equity was infinitely stronger ; for the judges, at the period when the struggle took place, were paid by fees from the suitor, and the interference of equity came in the shape of command, and not of advice (a). The true justification for the interference is to be found, not in the technical " modvA (a) The articles of impeachmeiit against Wolsey complain both of his granting injunctions after judgement at law, and also of his personally commanding the judges with threats to defer their judgement. The twentieth article ran thus: — "Also the same Lord Gardinall hath ex- " amined divers and many matters in the Chancery after judgement there- "of given at the Common Laiv, in subversion to your lawes, and made "some persons restore againe to the other party condemned that, that " they had in execution, by vertue of the judgement at the Common " Law." And the twenty sixth article thus : "Also, when matters have " been near at judgement, by proces at your Common Law, the same Lord " Cardinall hath not only given and sent injunctions to the parties, but " also sent for your judges and expresly by threats commanding them to " defer the judgement, to the evident subversion of your lawes, if the "judges would so have ceased." See the articles. Coke, 4 Inst, cap. 8, Digitized by Microsoft® LECTURE IX. 279 operandi," but in the substantially just and beneficial nature of the interference itself. It is however important that the reasoning in sup- port of the jurisdiction should be borne in mind, because the unhmited extent of the jurisdiction itself hinges thereon. The Court acts upon the person, and upon the person only : therefore, if the party accused of inequitable proceedings in some other court be within its reach, it will restrain his proceedings, whether that other court be a court of common law, or the Ecclesiastical Court (a), or the Court of Admi- ralty (b), or a Court of Scotland (c), or Ireland {d) ; and the principle obviously extends equally to pro- ceedings in any foreign court («). But it is time that we should pass to the considera- tion of that class of injunction suits with which we are on the present occasion more immediately concerned, viz. those in which equity interferes to restraua the commission of acts either unlawful or wrongful in the eye of a court of equity. In cases of this class, " in- junction " may be said to be the strong arm of pre- ventive justice, whether ia reference to equitable or to- It is instractiTe to notice tow these two things — which, according to our present notions, were, the first clearly within his jurisdiction as Chancellor; and the second, a gross excess of it — appear to ha¥e been at that day equally regarded as grievances. (a) Hill V. Turner, 1 Atkyns, 516. (J) Grlascott V. Lang, 3 Mylne &, Craig, 451. (c) Jones V. Geddes, 1 Phillips, 724 ; Graham v. Maxwell, 1 Macn. & Gor. 71. (d) Lord Portarlington v. Soulhy, 3 Mylne & Keen, 104. (e) See Lord Brougham's observations at 3 Mylne & Keen, 107, upon the case of Love ■;;,. Baker, 2 Freeman, 125; 1 Chancery Cases, 67. Digitized by Microsoft® 280 LECTURE IX. legal rights, though our present concern is with legal rights only. In our common law system, as it stood previously to recent legislative enactment {a), preventive justice was practically unknown. A man might be on the point of committing the most flagrant legal wrong : your only course at law was to wait patiently and sue him for damages. It was not always so. So late as Lord Coke's time, preventive justice was a part of the common law system. That its importance was fully recognised by him appears from his observations in a passage in the second part of his Institutes, respecting the writ of " Estrepement," a common law process for preventing waste. Lord Coke says : " This was an excellent law, " for prcestat cautela qiiam medela, and preventing "justice excelleth punishing justice" {b). And in the first Institute (c) we find the following enumeration of writs of a preventive character : — " And note, that there be six writs in law, that may ' be maintained, quia timet, before any molestation, ' distresse, or impleading ; as, 1, A man may have his ' writ of mesne (whereof Littleton here speaks) before ' he be distreyned. 2. A warrantia carta, before he be ' impleaded. 3. A monstraverunt before any distresse ' or vexation. 4. An audita querela, before any execu- ' tion sued. 5. A curia claudenda, before any default ' of inclosure. 6. A ne injuste vexes, before any dis- ' tresse or molestation. And these be called brevia ' anticipantia, writs of prevention." (a) i. e., 17 & 18 Vict. cap. 125, S3. 79, 80, 81. See p. 301, post. (b) 2nd Institute, 299. (c) 100 a. ! Digitized by Microsoft® LECTURE IX. 281 But these writs, except that of audita querela, have long since fallen into desuetude ; and the 36th section of the Statute of Limitations (a) includes amongst the forms of real action thereby abolished the writs of mesne, of warrantia carta:, and of ne injuste vexes; so that these last have ceased to own even that slight shadowy legal existence which they formerly possessed. But while the law had become thus helpless to anticipate and prevent wrong, the germ of preventive justice lay involved in the maxim, " Equity acts in personam,^' ready for development as occasion might require ; and as equity interfered by injunction to prevent the courts of law from being made the instru- ments of injustice, so it interfered by means of the same process to supply their want of power to afford preventive justice. It is of the process of injunction, as granted by the equity courts in aid of the legal right — of injunction, I may say without much inaccuracy, as a head of ava;i- iiart/ jurisdiction (i)— that I am now about to speak. The injunction suits falling within this limited range are mainly of some one of the following classes : — 1. Patent cases. 2. Copyright cases. 3. Cases relating to Trade Marks. 4. Cases of Nuisance, 5. Cases of Waste. (a) 3 & 4 Will. IV. cap. 27. (b) By the operation of Rolt's Act, see note at page 291, infra, the juris- diction of the Court in the classes of cases discussed has in effect become concurrent. Digitized by Microsoft® 282 LECTURE IX. 1 and 2. — It will be convenient to consider Patents and Copyright together. The history of Patents is intimately connected with that of the old abuse of Monopolies. Our earlier sove- reigns arrogated to themselves the right of conferring upon particular itidividuals the sole and exclusive right of buying, selling, or making particular articles of sale or manufacture. This right was exercised so abusively, that by the end of Elizabeth's reign a large number of useful manufactures and trades had become exclusively monopolized by persons able to command court favour. However, in the case of Monopolies (a), decided in the last year of Elizabeth's reign, the judges held that a grant of the sole making of playing-cards within the realm, which was an ancient manufacture, was bad, as contrary to common law. But, although monopolies affecting old manufactures were thus void, the king had always the power of granting monopohes of new inventions, as the chief guardian of the common weal, for the sake of the public good (b) ; and in the twenty-first year of James I.'s reign the rights of the sovereign and of the public were, by statutory enactment, placed on a foot- (a) 11 Reports, 85; The facts of the case aptly illustrate the practices and manners of the time. The grant Ti-as to Edward Darcy, a Grroom of the Privy ChamVier to Queen Elizabeth; and in justification of a privilege of importing playing-cards, also purported to be conferred, It contained a recital of the Queen's desire that her subjects should apply themselves to husbandry, and not make playing-cards; since by making such a multitude of playing-cards, card playing had become more frequent, and especially amongst servants, and apprentices, and poor artificers. (i) See Case of Monopolies. Digitized by Microsoft® LECTURE IS. 283 ing not differing very much from that existing at common law. By the statute in question (a), after declaring mono- polies to be contrary to law, it was by the sixth section declared and enacted as follows : — " Provided also, and be it declared and enacted, ' that any declaration before-mentioned shall not ' extend to any letters patents and grants of privilege ' for the term of fourteen years or under, hereafter ' to be made of the sole working or making of any ' manner of new manufactures within this realm, to ' the true first inventor and inventors of such manu- ' factures, which others, at the time of making such ' letters patents and grants, shaU not use, so as also ' they be not contrary to the law, nor mischievous to ' the state, by raising prices of commodities at home, ' or hurt of trade, or generally inconvenient : the ' said fourteen years to be accounted from the date of ' the first letters patent or grant of such privilege ' hereafter to be made, but that the same shall be of ' such force as they should be if this Act had never ' been made, and of none other." This section of the Act of James, as amended and extended by subsequent enactments (b), still forms the basis of our present system. Patent right is therefore a privilege derived from the original power of the Crown as restrained by statutory enactment. (a) 21st Jac. I. cap. 3. (J) The 5 & 6 Will. IV. c. 83 ; 2 & 3 Vict. c. 67 ; 7 & 8 Vict. c. 69 ; and 15 & 16 Vict. c. 83, are the principal Acts applicable to patents. Digitized by Microsoft® 284 LECTURE IX. Copyright, so far as respects the origin of the species of property called by that name, has long been the crux of lawyers, indeed one might say of the edu- cated community at large. Much confusion has been caused by the word being used in two senses. It in- cludes, or has been used to include, first, though somewhat inaccurately, the right of the author to publish or not, and to restrain others from publishing; and, secondly, the right after publication of repubhsh- ing and restrainiag others from doing so. The first species of copyright, that existing before publication, according to the strong preponderance of authority, existed at common law. Whether the second species of copyright had any common law existence is the question about which the greatest lawyers have differed. In the great case of Donaldson v. Beckett (a), decided by the House of Lords in 1774, ten judges against one were of opinion that copyright existed at common law ; though six to five were of opinion that whatever right of action an author might have had after publi- cation, was taken away by the statute of Anne, the first Copyright Act (b) — in fact, that the author's claim was, since that statute, only under the statute. In the recent case of Jefferys v. Boosey (c), also before the House of Lords, the question was incidentally re- oi^ened. Of the ten judges who were called to the assistance of the House on that occasion, three [d) (a) i Burrow, 2408. {b) 8 Anne, cap. 19. (c) i HoDse of Lords' Cases, 815. ' (d) Parke, B.; Pollock, C.B. ; and Jervis, C.J.C.P. Digitized by Microsoft® lECTURE IX. 285 expressed themselves to be of opinion that no copy- right ever existed at common law, three (a) that it did exist, and four (b) declined expressing an opinion on the point. Of the three noble lords who moved the judgement 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 aU notice of the common law right of the author before publication, let us con- sider the position and remedies at law, irrespectively of late enactment, both of the patent right owner and of the copyright owner, when their rights are invaded. An unscrupulous competitor infringes a patent, or pirates a book. What then ? the only remedy was by an action, in which damages were recoverable ; yet the wrong-doer miight be a man of straw, and the verdict thefefore valueless ; or he might be perversely litigious, and prepared to renew the contest even at the expense of his purse ; or the jury on the first occasion might give such moderate damages as to make a repetition of the offence a good pecuniary speculation — still the law remained helpless. Under these circumstances, a bill in equity for an injunction afforded that protection which the law was unable to give. But as the equity court acted in aid merely of the (a) Erie, J. ; Wightmau, J. ; and Coleridge, J. (J) CromptoD, J. ; 'WilHams, J. ; Maule, J. ; and Alderson, B. Digitized by Microsoft® 286 lECTURE IX. legal right, so in its course of action it always kept in sight the fact that its functions were really auxiliary only. The best exposition of the principles by which «quity courts were guided in this class of cases is, so far as I am aware, that contained in Lord Cottenham's judgement 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 untU 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 court is consequent upon the legal " right ; and it generally happens that the only ques- " tion the court has to consider is, whether the case "is so clear and so free from objection upon the "grounds of equitable consideration, that the court " ought to interfere by injunction, vdthout a previous " trial at law, or whether it ought to wait 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." {a) 3 Mylne & Craig, 711, see p. 728. — The alterations in tte practice of the Court, resulting from recent legislative enactment, -will be fonnd noticed at p. 291 infra, The intermediate portion of this lecture is now useful to a student, only as couTeying information respecting the former practice, a knowledge of which is essential to the nnderstauding of the recent decisions. Digitized by Microsoft® LECTURE IX. 287 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 this court is founded upon legal " rights ; the plaintiff coming into this court on the " assumption that he has the legal right, and the court " granting its assistance upon that ground. When a " party apphes for the aid of the court, the application " for an injunction is made either during the progress " of the suit, or at the hearing ; and in both cases I *" apprehend great latitude and discretion are allowed " to the court in dealing with the application. "When " the application is for an interlocutory injunction, " several courses are open; the court may at once " grant the injunction — sivipliciter, without more — a " course which, though perfectly competent to the *' court, is not very likely to be taken where the de- " fendant raises a question as to the validity of the " plaintiif's title ; or it may follow the more usual, " and, as I apprehend, more wholesome practice in " such a case, of either granting an injunction and at " the same time directing the plaintiff to proceed to " establish his legal title, or of requiring him first to " establish his title at law, and suspending the grant " of the injunction until the result of the legal inves- " tigation has been ascertained, the defendant in the " meantime keeping an account." Lord Cottenham here points out the three most common courses as being : — 1, Injunction simply. (o) Bacon v. Jones, 4 Mylne & Craig, 433, see p. 436. Digitized by Microsoft® 288 LECTURE IX. 2. Injunction with a direction that plaintiff proceed to establish his title at law (a). 3. BUI retained for a limited time in order that plaintiff may establish his title at law, the defendant keeping an account in the meantime (6). 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 think fit to make as to damages, in the event of the plaintiff failing to establish his right at law (e). As respects the third course, the allusion to the de- fendant keeping an account ma}^ 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 wrongffd acts. It is with this view that the court, where the (a) The eqaivalent under the modern practice, see note, p. 291, wotfW be the granting of an interlocatory injunction upon special terms as to bringing the cause to a speedy hearing. Another and common mode of dealing with cases in which the court inclines to the view that the plaintiff is right, is to let the matter stand Over until the hearing of the cause, irpoE the plaintiff 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. K. 5 Eq. 25, at p. 26. (b) The modern equivalent to this course is simply a refusal of the injunction, resei-ving the costs of the motion until the hearing of the cause. (c) Or now, in the event of the plaintiff failing to obtain a decree at the hearing of the cause. Digitized by Microsoft® LECTURE IX. 289 injunction is not granted, commonly requires the de- fendant to undertake to keep an account until the legal right is ascertained. The decisions in regard to the com-se to he taken by the court with respect to withholding or granting the injunction, are extremely numerous ; hut, as intimated by Lord Cottenham in the case first cited, no general rule can he looked for. The substantial question always is. What course wUl, on the whole, he least Kkely to lead to wrong ? Will the plaintiff be most likely to suffer wrong, if '*the injunction be ivithheld, or the defendant, if the injunction be granted ? and in reference to the question whether the injimction shall be granted or withheld, the pecu- niary abihty of the defendant to answer any damages that may he awarded against him, is not without relevance (a). Where the plaintiff's claim is in respect of a patent, two main questions are commonly raised, viz. : fii-st, as to the validity of the plaintiff's patent; and, secondly, whether there has been an infringement. In reference to the first question, the length of enjoy- ment under the patent has always considerable weight with the court upon the point of withholdiag or grant- ing the injunction. The practice of the court (with the grounds for it) was recently thus stated by Lord Justice Turner, when Vice-Chahcellor : " When the " patent is new, the iiublic, whose interests are " affected by the patent, have had no opportunity of " contesting the validitj^ of the patentee's title, and (a) Newall v. Wilson, 2 De Gfex, Maon. & Gor. 282. Digitized by Microsoft® ^ 290 .LECTURE IX. " the court refuses to interfere until Ms 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 •prima 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 enjoj'ment. Occasionally a dry question of law arises respecting the plaintiff's title to copjTight(6), 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 your attention to a section in the Chancery Pro- cedure Act of 1852 (c), which, as it seems to me, ought to have led to considerable alteration in the practice, but which, so far as I am aware, has been little acted upon ; I mean the 62nd. It is in these words : — " In cases where, according to the present practice " of the Court of Chancery, such court declines to " grant equitable relief until the legal title or right (a) Caldwell v. Vanvlissengen, 9 Hare, 424. (6) e.g. Low v. Eontledge, 33 Law Journal Kep. (N. S.) Chanc. 717 | on :appeal L. R. 1 Ch. App. 42. (c) 15 & 16 Vict. cap. 86. Digitized by Microsoft® LECTURE IX. 291 ■" of the party or parties seeking such relief shall have ■" been estahhshed in a proceeding at law, the said " court may itself determine such title or right with- " out requiring the parties to proceed at law to ■" establish the same." Of course you notice that the •enactment is permissive merely; and, no doubt, in a considerable number of injunction cases the issues raised between the parties are of a nature more fitted for trial before a jury than by a single judge; but cer- tainly the new powers conferred by it on the court have not been very liberally exercised (a). (a) The permissiye enactment above referred to has since lieeu made compulsory in a more extended form, by the 25 & 26 Vict. c. 42, com- monly known as Kolt's Act ; ■which enacts that, whether the title to a srelief or remedy be or be not dependent on a legal right, every question of law or fact cognizable in a Court of Common Law, on which the title to relief or remedy depends, shall be determined by the Court of Equity. The Act contains three exceptions to its general operation. The first 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 is to recover or defend the possession of land, relief shall be given only in accordance with rules and practice of the court before the Act. (See Metropolitan Board of Works v. Sant, L. E. 7 Eq. 197; Slade v. Barlow, L. E. 7 Eq. 296.) The third, exempting the court from any obligation to grant relief where a Court of Law has concurrent jurisdiction if it shall appear that the matter has been improperly brought into equity. By the effect of this Act in nearly all the cases discussed in the lecture the ultimate decision of the question of legal right has been transferred from law to equity. There was at first some hesitation on the part of the Equity Judges as to removing from the consideration of a jury certain cases, such as those of nuisance, which were considered peculiarly fitted for determina- •tion by a jury (see Eaden u. Firth, 1 Hemming & Miller, 573), but the iesitation has since disappeared (see Inchbald v. Eobinson, L. E. 4 Ch. App. 388, Eoskell v. Whitworth, L. E. 5 Ch. App. 459), and the trial is jQOw commonly before the court itself, and without a jury (as to which the student may refer to 21 & 22 Vict. cap. 27), the assistance of which has been but little resorted to, except in patent cases. Digitized by Microsoft® u 2 292 LECTURE IX. Finally, let me obsen'e, in reference to both patent and copyright cases, that although the jurisdictioa 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 conies asserting a legal title, it is equally clear, both upon principle and authority (a), that a person having an equitable interest in a patentr right or copyright is entitled to have that interest pro- tected. But obviouslj'' his equitable interest can stand on no higher ground than the legal title out of wMcli 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 granting or withholding an injunction, by principles similar to those which prevail where the plaintiff comes upon a purely legal title. And now a few words respecting that species of right,, often, though somewhat inaccurately, referred to under the general term "Copyright,'" viz., the author's rights in regard to the productions of his own mind previously; to pubhcation. It would be obviously monstrous to allow any person,, who might either accidentally or surreptitiously have obtained a coj)y of the contents of another's writings^ to publish those writings against his will. But the author's rights do not sto]5 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 therebj- acquire a right to publish the work. He must make no other use of his copy than the author [a) Mawman i: Tegg, 2 Knssell, 336. Digitized by Microsoft® LECTURE IX. 293 anay 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 pouit decided in the case of the Duke of Queensherry v. Shebbeare (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 per- onission of Henry, Earl of Clarendon, the son and ad- ministrator of the great liistorian, had made a copy of the original IMSS. 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 liim that he may read it, and not that he may print and publish it. Accordingly, in the leading case of Pope v. Curl (b), Lord Hardwicke restraiued the defendant from publish- ing any letters written bj'- Pope, though refusing to restrain the publication of letters written to him. So in the more recent case of Thompson v. Stan- hope (c) the widow of Lord Chesterfield's son was, at (a) 2 Eden, 329. (5) 2 Atkyns, 341. (c) Ambler, 737. See, also, Gee v. Pritohard, 2 Swanston, 402. The ■student may with adrantage refer to and distinguish the decisions wMcIi 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 Keade v. Conquest, 9 Common Bench N. S. 755), though not to print the drama and publish it ; Tinsley v. Lacy, 1 Hemming & Miller, 747. And before the Dramatic Copyright Acts even a published drama might be -adapted to representation, and put on the stage for profit, without the Digitized by Microsoft® 294 ;:,ECTUEE IX. the suit of Lord Chesterfield's executors, restrainei' hy 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 priaciple applies equally to an oral com-^ munication which is presumably made for a quahfieiL purpose. Hence, in the case of the farce of " Love i la Mode," written by Macklin, it was held that the pro- prietors of a magazine had no right to employ a person- to take down the words of the play and publish it (a)- And similarly in more modern times, it was held, in the- case of Mr. Abemethy's Lectm-es, that pupils attending lectures delivered orally, though entitled to take notes- for their own use, have no right to publish the contents^ of those lectures {h). Finally, whenever there has been any conduct pai-- taking of breach of confidence, the court will go even- further in protecting the rights of authorship before publication. Thus, in the celebrated case of her- present Majesty's Etchings, where impressions had been obtained surreptitiously, the parties into whose; hands the impressions had come were restrained, not author's consent : Morray v. Elliston, 5 Bamewall & Alderson, 657. Thess 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 puhlished -work so long as he docs not multiply copies. If, ho-vrever, an author first publishes a play, and thea' turns the play into a novel containing the same incidents, his copyright in the play will be protected against piratical imitations, eyen though'. the piracy be from the novel, and not fi-om the play ; Eeade v. Lacy, 1 Johnson & Hemming, 624. (a) Macklin v. Richardson, Ambler, 694. (6) Aberuethy v. Hutchinson, 1 Hall & Twells, 28. Digitized by Microsoft® LECTURE IX. 295 only from exliibiting the impressions and publishing copies, but even from publishing a catalogue contain- ing an enumeration and descriptive account of those etchings (rt). In reference to the whole of this class of cases of rights of authorship before publication, it is to be observed, that the author's rights very often rest partly upon equitable grounds, and that the question whether an injunction shall go or not is commonly decided bj- the coiirt 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 cursory notice of the authorities. 3. "VVe now pass to Trade Marks. Cases of biUs filed by plaintiffs seeking to restrain the fraudulent imitation of trade marks, with a view of passing off goods not the plaintift"s as his, are of frequent occurrence. They must be taken to be clearly a branch of auxiliary equity. There is, however, a distinction between these cases and copyright cases, which must be borne in mind. There is no property in a trade mark (b) ; the plaintiff (a) PriDce Albert v. Strange, 1 Hall & Twells, 1. (J) This position cannot be maintained in its integrity since the judg- ments of Lord Westbury in the Leather Cloth Company (Limited) v, American Leather Cloth Company (Limited), 4 De Gex, Jones & Smith, 137 (affirmed on appeal in D.P., 11 House of Lords Cases, 523), and Hall ■0. BaiTows, Ibidem, 150. In some respects the controversy (as to which see further McAndrewr. Bassett, 33 Law Journal (N. S.) Chauo. 561, and Digitized by Microsoft® 296 LECTURE IX. does not come complaining thai the defendant has iu- frmged any right of property. The nature of his case is that the defendant has imitated his marks, for the purpose of fraudulently passing oif his own goods as the plaintiff's (a). The distinction is not without im- portance, and it is especially well illustrated by the judgment — not less instructive because humorous — of Lord Justice Knight Bruce, in the case of Burgess \. Burgess (6). 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 liis shop the words, Ainswortli v. Walmsley, L. E. 1 Eq. 518) may be regarded as verbal rather than substantial. (a) See the form of declaration at law, Crawshay v. Thornton, 4 Manning & Grainger, 357, and Welch v. Knott, 4 Kay & Johnson, 747. But although the general nature of trade-mark cases be as stated in the text, fraud on the part of the defendant is not requisite to entitle the plaintiff to a decree ia Equity protecting 'his exclusive right to a trade mark: Milling- ton 1'. Fox, 3 Mylne & Craig, 338 ; Burgess v. Hills, 26 Beavaii, 244. The result seems to be that while at law the scienter may be essential to enable the plaintiff to recover, such is not the case in Equity. See also Dixon V. Fawcus, 30 Law Journal (N. S.) Q. B. 137. See also, as illus- trating the distinction between cases of copyi'ight and of trade marks, The Collins Company J). Brown, 3 Kay & Johnson, 423, in which Lord Hatherley (then Vice-Chancellor Wood) decided that a foreign manufacturer has a remedy against a manufacturer here who fraudulently imitates his trade mark, whereas it was recently finally settled in the House of Lords, that a foreigner not resident here had, previously to the recent international Copyright Acts, no copyright in this country, (i) 3 De Gex, Macn. & Qor. 896. Digitized by Microsoft® LECTURE IX. 2.9 " late of 107, Strand," and there sold, amougst 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," 'hut refused to restrain him from selling sauces under the name of " Burgess's Essence of Anchovies." The plamtiff appealed ; and on deliveriiig judgment, Lord Justice Knight Bruce exxDressed himself as follows : — " All the Queen's subjects have a right, if they will, " to manufacture and sell pickles and sauces, and not " the less that their fathers have done so before them. " All the Queen's subjects have a right to sell these " articles in their own names, and not the less so that " they bear the same name as their fathers ; nor is there " anything else that this defendant has done in ques- " tion before us. He follows the same trade as that " his father follows and has long followed, namely, that " of a manufacturer and seller of pickles, preserves, and " sauces; among them, one called ' essence of anchovies.' " He carries on business under his own name, and sells "his essence of anchovies as 'Burgess's Essence of " Anchovies,' which in truth it is. If any circumstance ■" of fraud, now material, had accompanied, and .were ■" continuing to accompany, the case, it would stand " very differently; but the whole case lies in what I " have stated. The whole ground of complaint is the " great celebrity which, during manj' years, has been " possessed by the elder Mr. Burgess's essence of ancho- " vies. That does not give him such exclusive right, " such a monoj)oly, such a privilege, as to prevent any Digitized by Microsoft® 298 LECTURE IX. " 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 heen correctly decided, I think that there is " here no case for an injunction." In reference to this class of cases respecting trade marks, the practice of the court in granting or refusing injunctions or retaining the bill is substantially the same as in patent or copyright cases. There is a right of action at law, though not in respect of wrong done to any species of property, but in respect of the fraudulent contrivance to pass off goods as and for the plaintiff's. Accordingly, in a very recent case relatmg 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- ChanceEor "Wood ought to have gone, retained the bill for a year, with liberty to the jplaintiff to bring any action which he might be advised (a). 4. The fourth class mentioned as demanding the interpositon of equity by injunction, was "cases, of Nuisance." These are commonly subdivided into puhlk nuisance and private nuisance. The distinction is material in reference to the form of remedy. In cases of public nuisance, the remedy is at law by indictment, and in equity by information at the suit of the Attorney- General, (a) Farina v. Silverlock, 6 De Gex, Maon. & Gor. 214. See, as to tlie present practice, note (S), p. 288, ante. Digitized by Microsoft® LECTURE IX. 299 In tliose of private nuisance, at law by action on the case, and in equitj' by bill. It is not always easy to determine whether certain particular acts are a public or merely a private nuisance. In the famous Clapham bell-ringing case (a), Vice- Chancellor Kindersley thought that, to constitute a public nuisance, the thing done must be a damage or injury to all persons who came within the sphere of its operation, though of course it might be so in a greater degree to some than others, instancing noxious fumes from a factory, stopping the king's highway. But the ])articular case before him, viz., of a peal of bells, which might be an intolerable nuisance to a person Uving 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 jirivate individuals, for the Vice-Chancellor ruled in the same case, that what is a public nuisance, may be also a private nuisance to a particular individual, by inflict- ing on him some special and particular damage ; and that, in that event, the particular individual has his remedy in equity bj'' bill, without making the Attorney- General a party (&). In regard to cases whether of public or of private nuisance, both the grounds for the interference of equity, and the tenns on which interference is granted. (a) Soltau V. De Held, 2 Simons (N.S.), 133. (5) Soltau V. De Held, 2 Simona (N.S.), 145—151. And an action will lie at law; l^isoav. Moore, Holt's Eep. 16. Digitized by Microsoft® 300 LECTURE IX. are substantially the same as in patent and copyright cases. The remedy at law, in the case of public nuisance by indictment after indictment, and in the case of private nuisance by action after action, is wholly in- adequate to answer the ends of justice ; and accord- ingly the Court of Equity, while requiring the most clear proof of the legal right or else carefully pro- Tiding for its establishment, lends its strong arm to law. Perhaps one of the happiest illustrations of the beneficial interposition of equity to restrain acts which, if done, would have amounted to a public nuisance, is that afforded by the Datchet Bridge Case (a). There, the bridge lying partly in Berkshire and partly in Buckinghamshire, the medium Jilum of the Thames being the county bomidary, and the bridge requiring either rejDair or rebuilding, the magistrates of the respective counties were unable to agree upon any general plan. Bucks according!}' proceeded to repair its own side ; but the difficultj'^ 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 baj^, which rested at one end in Bucks and at the other in Berks. Thereupon, the Berkshii-e magistrates, unwiUing to allow such a (a) Attorney-General v. Forbes, 2 Mylae & Craig, 123. Digitized by Microsoft® LECTUEE IX. 301 triumph to the opponent county, made an order at quai-ter sessions for cutting through on their o^m 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. Under the head of "private nuisance" (or of its equivalent, " public nuisance," causing special damage to some particular individual) may be ranged a large varietj' of injmies ; the legal remedy for which, by action on the case, would afford most inadequate re^ di'ess. 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 burning 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 cuttmg* a trench across a road (cZ) ; and distm-bance of rest, as by ringing beUs of heavy weight at unreasonable times, of wluch last kind was the case of the Eoman CathoHc (a) Herz v. Union Bank of London,! Jurist (N. S.), 127. See Isenterg V. East India Honse Estate Company, 33 Law Journal (N. S.), Chanc. 392; Johnson v. Wyatt, Ibidem, 394. (5) Walter v. Selfe, 4 De Gex & Smale, 315 ; Pollock v. Lester, 11 Hare, 266. See too Beardmore v. Treadwell, 3 Giffard, 683 ; Crump v. Lambert, L. K. 3 Eq. 409. (c) Wood V. Sutcliffe, 2 Simons (N. S.), 165. {d) Spencer V. London an"? Birmingham Bail way Company, SSimons, 193. Digitized by Microsoft® 302 LECTURE IX. chapel at Clapham, before referred to (a) : in all wMch, and many others, though there be a remedy at law by action on the case, the court will protect the legal right by injunction. 5. My fifth class of cases, " Waste," alone remains. The equitable jurisdiction to restrain waste forms a large and interesting subject, of which only a very small portion faUs within the ambit of my present lecture. There was at common law a form of proceeding by prohibition to stay waste. Subsequently this was abo- lished by the Statute of Westminster (b). At common law also a writ of Estrepement (c) lay after judgment, and before execution, to stay waste ; and by the Statute of Gloucester (rf), the operation of this writ was made applicable before judgment where litigation was pending. In other respects the law afforded no pro- tection. The action of waste gave and gives (for it still lies) none other remedy than that of a punishing or com- pensating justice. But equity, 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 matters of waste is exercised in aid only of the legal right. On {a) Sultau V. De Held, 2 Simons (N. S.), 133 ; and see Walker v. Brewster, L. E. 5 Ei}., 25 ; Inchbald v. Eobinson, L. R. i Ch. App. 388 ; Eoskell V. Whitworth, L. E. 5 Ch. App. 459. (6) 13 Edward I. stat. 2, cap. 14. \c} A word signifying extirpation. (d) 6 Edward I. cap. 13. Digitized by Microsoft® LKCTURE IX. S03 the contrary, it lias 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, dm^ing the lifetime of B and C, committed waste, at law B had no remedy by action of waste, because he was. tenant for life onlj^, and the damage must have been laid as having been done to the inheritance ; and C had no remedy, because his estate was not in possession. Still, in this case, equitj' from the earliest times interfered and granted an in- junction (a). Again, equity interfered, and still interferes, even as against the strict legal rights of tenant for life without impeachment of waste, by restraining hun from commit- ting wilful destruction, as from pulling down mansion- houses (b), or from felling timber planted and left standing for ornament (c). But these special inter- positions of equitjr, however interesting a branch of study, form no part of the auxiliary jurisdiction of the court. Having now pointed out the most important instances of the auxiliary interposition of equity by injunction, it is fitting that I should call your attention to the power recently conferred on the common law courts of grant- ing injunctions. ■ (a) Egerton, Lord Keeper, is reported to have stated, in 41st Elizabetb, Moore, 554, that he had seen a precedent of a decision to this effect, of the •time of Eichard II. At a later date, an action on the case in, the nature of waste lay ; 2 Saunders' Reports, 252, note (7). (J) Yane v. Lord Barnard, 2 Vernon, 738. , (c) Marquis of Downshire v. Lady Sandys, 6 Vesey, 107. See also, Mickletliwait v. Micklethwait, 1 De Gex & Jon£s, 604. Digitized by Microsoft® 304 LECTURE IX. The Common Law Procedure Act of 1854 (a) in sub' stance empowers a plaintiif, at any time after action brought, and either before or after judgment, to apply ex parte to the common law courts, or a judge, for a writ of injunction, which writ may be granted 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 ; and, in case of disobedience, the writ may be enforced by attachment. The new jmisdiction thus conferred may be said, I beheve, to be yet on trial ; at all events, the reported decisions in reference to its exercise are as j-^et few in number (&). The path, however, of the common law judges would seem to be tolerably easy. The new juiisdiction is a 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 62d section of the Equity Procedm'e Act of 1852 (c), before re- ferred 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, (a) 17 & 18 Vict. 125, s. 82. (b) See Jesael v. Chaplin, 2 Jurist (N. S.), 931; Baylis v. Legros,, 2 Common Bench Reports (N. S.), 316 ; Sutton v. South Eastern Railway CoEQpany, L. R. 1 Exchequer, 32. (c) 15 & 16 Vict, cap; 86. Digitized by Microsoft® LECTURE IX. 305 including the question of legal right ; while, where the circumstances are such that a trial by jmy is desirable, an action at law in the ikst instance, and an applica- tion for an injunction to the common law court, will be the proper course (a). And here I may observe that it is impossible not to recognise the generally beneficial tendency of the late legislation, communicating to the common law court powers formerly possessed only by the courts of equity. Let me sum up shortly what has been recently done for the common law jurisdiction in this respect. Their procedm'e has been improved by the powers of discovery and production of documents, mentioned and explained in my sixth lecture. They have been in- Tested with the power of granting injunctions just mentioned. Then- 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 imparted to the action of detinue by giving to the common law judge power upon the application of the plaintifi' to (a) Tlie experience of the fourteen years since the above Lecture was delivered shows only s, very sparing resort to the new jurisdiction by Injunction at Common Law. This may be partly attributable to the circumstance that the Common Law Courts cannot interfere upon a mere apprehension of wrong. There must be an existing cause of action to found the jurisdiction. But the superiority of the Chancery procedure in respect to interlocutory injunctions, in point of speed and generally, must be regarded as the principal cause of the Common Law j urisdiction remaining unused. (b) 17 & 18 Vict. -cap. 125, s. 68. (c) Benson v. Paull, 2 Jurist (N.S.), 425. Digitized by Microsoft® x 306 LECTURE IX. order that execution shall issue for the return of the chattel detained, without giving the defen4ant the option of retaining it {a), though the ef&cacy of this clause is somewhat impaired by the absence of any pro- vision other than distress for enforcing the return of the article (b). A power has been given enabling a de- fendant who is sued at law, but has a clear defence in equity, to set up his equitable defence by way of plea (c),, so that our jurisprudence is rescued from the absurdity of a man recovering on one side of Westminster Hall what he is bound to pay back on the other (d) ; though the common law judges have decided to allow pleas of this kind only where the equity set up is a simple unqualified answer to the action (e). Finally, where an action is now brought upon a bill of exchange or other negotiable instrument, the common law com-t is invested with the old head of equity jurisdiction, which consisted in ordering the loss of the instru- ment not to be set up upon a proper indemnity beinf given (/). The bare enumeration of these additional ijoivers suggests naturally to the mind the question of the (a) n & 18 Vict. cap. 125, s. 73. (6) In equity there would simply be a decree for return ; and in defaolt of otedience the defendant ivould be committed. (c) 17 & 18 Vict. cap. 125, sa. 83 to 86, which provisions, however, do not apply to an action of ejectment. Neave v. Avery, 16 Common Bench Reports, 328. (d) Note for StVydeni. — The Court of Chancery used formerly to sit at Westminster. (e) Wodehouse v. Farebrother, 6 Ellis & Blackburn, 277. (/) 17 & 18 Vict cap. 125, s. 87. Digitized by Microsoft® LECTURE IX. 307 feasibility of a fusion of law and equity ; a question far too large for discussion at the present hour, and per- haps altogether too speciilative for consideration in a course of elementary lectures (a). It may indeed have occasionally appeared to some of you that I have in- dulged too freely in matters of mere opinion. The pre- sent, 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 present day do not walk in pleasant paths. The shortcomings of the law are freelj' laid to our charge, and we are expected to make them good. That the jurisprudence of imperial Rome, based as it was upon a pure despotism (b), 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 aenigmata solvere et " omnibus aperire idoneus esse videbitm' nisi is cui " soli legislatorem esse concessum est? "(c). But that our countrymen of our own age, members of a free 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 oiu' profession to do the work of the legislator, and as a simple act of ordinary duty to reform the law, may well excite oiu' astonishment. The injustice of the demand is too obvious to need comment. The duty (a) See post a recent lecture on this subject. (6) Quod principi placuit legis habet vigorem ; Inst. I. tit. i. 1. 6. (c) Codex, Lib. I. tit. xiv. 1. 12. Digitized by Microsoft® 808 LECTURE IX. of the legal profession, as a body,, is to ivork the law— and hard enough the work often is — not to mahe the law. We cannot, however, with propriety disregard alto- gether the general current of the feelings and convic- tions of that large conununity of which our smaller one forms part ; and if I have occasionally digressed into matters of opinion respecting either the advan- tages 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® SUPPLEMENTAEY LECTUEES.* Election. A FiEST 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 younger, and dies. The eldest son claims Blackacre, as devisee, and Whiteacre (which his father had no legal power to devise) as heir in tail. There- upon a Court of Equity says. No, you shall make your " election " to claim either under or 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 up your paramount title as issue in tail. This illustration is, m 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. * The following four lectures formed part of a second course delirered in the years 1858—1859. Digitized by Microsoft® 310 SUPPLEMENTARY LECTUKES. " The case was this: — A. was seized 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 taU ; 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 hrought " his bill in this coui-t against his brother, that he " might enjoj'- the tail acre devised to him, or else " have an equivalent out of the fee acre ; because his " father plainly designed him something. Lord Chan- "cellar. — This devise being designed as a provision "for the younger son, the devise of the fee acre to " the eldest son must be understood to be with a tacit " condition, that he shall suffer the younger son to " enjoy quietly, or else, that the youngest son shall " have an equivalent out of the fee acre, and decreed " the same accordingly." In the simple instance just put the doctrine and the application of it would probably meet with the appro- bation of a very large proportion of educated men, whether lawyers or laymen; and yet, on looking closely, it is impossible not to perceive that this decision con- tains the first step towards an enormous stretch of authority. The Court of Equity, in fact, imjoorts into the will a condition which is not expressed on the face of it. Let me put another case, and you will, I think, at once see what I mean. Suppose the father entitled to fee simple property of very large value, and to be also entitled as tenant for life to a small outlying property, of which the eldest son is tenant in fee in remainder, situated in a distant Digitized by Microsoft® ELECTION. 311 •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 outlymg pro- perty of his son, to the first son for life, remainder to Ms issue in tail, remainder to the second son for life, &c. In tliis case the dectrine of election equally ap- plies — the first son cannot at the same time claim his life estate under the will and claim his own property against it. Yet it is impossible not to feel that the court may by the 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 remark- able classes of decisions estabhshing that under certain circumstances a case of election does or does not arise. Tlurdly. — I shall add a few words respecting the apphcation of the doctrine to persons under disabihty. (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 imphes a condition where none is expressed. In the case first supposed, to i-epeat the words of Lord Chancellor Cowper, "the ■" devise of the fee acre to the eldest son is under- Digitized by Microsoft® 312 SUPPLEMENTAEY LECTURES. " stood to be with a tacit condition that he shall suffer " the younger son to enjoy quietly." In the secondly supposed case, the Court assumes that the life estate in the whole property settled is conferred conditionally only on the son allowing his own small outlying pro- perty to be brought into settlement. But is this a justifiable implication ? The testator has imposed no condition in terms. Is a Court of Equity warranted in importing a condition into his will? The answer to this question involves the in- quiry, What was presumably the testator's intention ? Now it is obvious that the disposition made by the testator must have been made under one of the follow- ing states of circumstances : (a) Either the testator knew that the property which, he assumed to deal with was not his own, and yet he advisedly assumed to give it ; or, (fi) He so gave it erroneously supposing it to be his own.* a. — The first case presents far less difficulty than the second, though (lest any of you should even for a few minutes be left under an erroneous impression) I wiU say at once that, in our system of equity jurispru- dence, the doctrine of election applies equally in each case. In the first case the testator, conscious of his owa want of power, has nevertheless said, I choose this estate which belongs to A. to go as part of my property, and it can hardly be doubted that he relies on the (*) Whether the erroneous belief was due to want of sufficient infonM- tion or to momentary forgetfulness, seems immaterial. Digitized by Microsoft® ELECTION. 313 benefits wMcli he by bis will confers on A. as the in- duceme;it to A.'s consenting to ratify liis will. Certainly it maybe said : " The testator knew the facts, and has " omitted to impose any condition ; why should you " imply one ? " The answer is, he has devised to the devisee on the assumption of the latter's compliance. To give the devisee the estate which the testator had power to dispose of, and to allow him to claim his own by title paramount, would be to frustrate the clear undeniable intention of the testator. j8. — But when we approach the secondly supposed state of circumstances, viz., that the testator erroneously supposed that the estate wliich 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 to devise them, but that as regards this particular small estate he had included it under the erroneous belief that it was his own. Here it is almost impossible to resist the conviction that — to apply the doctrine of election — to compel the son to bring his own estate into settlement, is not to carry out, but to («) In a recent case, Cooper v. Cooperj L. E. 6 Ch. App. 15, V.-C. Stuart appears to have coDsidered (see his judgment at note 2, page 16 of the Report) that erroneous belief as respects power of disposition was necessary to raise a case of election. But this doctrinewas on appeal treated as unsound. Digitized by Microsoft® 314 SUPPLEMENTAEY LECTURES. 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 appUes. The ground commonly assigned, is that given by Lord Alvanlej^ in his judgment, in Whistler v. Web- ster {a). He there says : " The question is very short; " whether the doctrine laid down in Noys v. Mordaunt, " and Streatjield v. Streatfield, has established this " broad principle ; that no man shall claim any benefit " under a will without conforming, as far as he is able, " and giving effect, to everything contained in it, " whereby any disposition is made showing an inten- " tion, that such a thing shall take place, without " reference to the circumstance whether the testator " had any knowledge of the extent of his power, or " not. Nothing can be more dangerous than to specu- " late upon what he would have done, if he had known " one thing or another. It is enough for me to say, " he had such intention ; and I 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 doctruie of elec- tion proceeds, or professes to proceed uj)on intention. Thus, Mr. Swanston in his celebrated note to Dillon V. Parker (b), says : " The foundation of the equitable " doctrine of election is the intention, explicit or pre- " sumed, of the author of the instrument to which it (a) 2 Vesey, jun., 370. (5) 1 Swanston, 401. Digitized by Microsoft® ELECTION. 315 " is applied." In furtherance of the presumed inten- tion you implj' a condition. Yoti assume the testator to say, I give you an interest in my propertj^ condi- tionally on your ratifying the disposition which I have made of your own ? But how can the testator be supposed so to speak in a case where, by the hj'pothesis, he really believes himself to be only dealing with what is his own. The " intention" referred to by Lord Alvanley in the words just read, is a different intention altogether, viz., the intention that the devisee shall have a particular estate which the testator professes to devise though it be not his own. However, that the doctrine of election apphes accord- ing to our law where the testator erroneously supposes 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 whollj"- inde- pendent of it ; that the Court presumes an intention, on the part of the author of every instrument, that all persons deriving benefits under that mstrument 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, 3'et 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, from which our own doctrine of election was un- Digitized by Microsoft® 316 SUPPLEMENTARY LECTURES. doubtedly derived in the first instance, with those of 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 in- heritance. If he accepted, he did so subject to all the burdens of debts and bequests which the testator had thought fit to impose. Amongst the burdens thus ' assumed by the heir was that of procuriag 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 Tus- culum. If the heir accepted the inheritance, it became his duty either to purchase the house of Sempronius and make it over to Claudius, or, if this was im- possible, to paj^ to Claudius the appraised value of the house. But this rule applied only where the testator knew that the house was that of Sempronius ; and not if he had made the bequest supposing it erroneously to be his own. In the Second Book of the Institutes, title xx, s, 4, after explaining the general doctriae of election, to the effect just mentioned, the 5th section contiaues thus : " Quod autem diximus alienam rem posse legari, ita " inteUigendum est, si defunctus sciebat alienam esse, " non si ignorabat. Forsitan enim si scivisset ahenam " rem esse, non legasset." You wiU thus observe that the civil law, from which there can be little doubt our own doctrines were derived, Digitized by Microsoft® ELECTION. 317 diiFered most materially from oiu-s in excluding, from the application of election, cases proceeding from an erroneous supposition of the testator (a). Bearing, however, in mind that, in our system, elec- tion applies whether the testator was or whether he was not aware that he was dealing with property not his own, let us next proceed to examine a httle more closely the natm-e of the condition inferred. I have hitherto referred to it as a tacit condition annexed " that the person owning the property will not dispute " the disposition made thereof by the testator." But this is not aU. The form of condition assumed is somewhat more complex. I turn again to the Anony- mous Case in Gilbert, where the tacit condition is said to be, " that he shall suffer the younger son to " enjoy quietly, or else have an equivalent out of the " fee acre." The condition assumed to exist is, therefore, you see, alternative in form. This is immaterial where the donee elects to confirm the will, but what is the effect where he elects to take against it ? Why, the Coiu't lays hold of the property given to him, and sequesters it for the purpose of making compensation to the disapiDointed legatee to whom the property of the electing x^arty was bequeathed, in respect of the loss which he has sustained by the withdrawal of that property from the operation of the will. (a) The French code, rejecting altogether the doctrine of election, pro- Tides, Cod. Civ. § 1022, as follows :— "Lorsque le testateur aura leguS la chose d'autrai, le legs sera nul, soit que le testateur ait counu, ou non, qu'elle ne lai appartenait pas." Digitized by Microsoft® 318 SUPPLEMENTARY LECTURES. 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 shall confirm or forfeit," 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 benefit of the heir or residuary legatee ; but is, " You " shall confirm, or, out of the property given to you by " the testator, make a compensation to the person " whom you disappoint " (a) . The doctrines of the Court on this point, together with the extreme dif&culty of reconciling them with strict principles of construction, are thus forcibly pointed out by Sir Thomas Plumer in the case of Gretton v. Haioard (6) : — " Few cases are to be found on the subject, but it " must be acknowledged that the language of the great " jtidges by whom it has been discussed, proceeds to " the extent of ascribing to the Court an equity to lay " hold on the estate thus taken from the devisee by " the principle of election, and dispose of it in favour " of those whom he has disaj)pointed ,• not merely " taking it from one, but, such is the uniform doctrine, " bestowing it on the other. A doctrine not confined " to instances in which the heir is put to election, and " which maybe said to bring him vdthin the operation " of the general principle, but prevailing as an uni- (a) Upon the question whether "compensation" forms part of th& Scotch doctrine of "Approbate and Eeprobate," see Bell's Commentaries, 6th edition (by Shaw), page 68. (6) 1 Swanston, 423. Digitized by Microsoft® ELECTION. 319 " versal rule of equity, by which the Court interferes " to supply the defect arising fi-om the circumstance " of a double devise, and the election of the party to " renoimce the estate effectually devised ; and instead " of permitting that estate to fall into the channel of " descent, or to devolve in any other way, lays hold of " it, to use the expression of the authorities, for the " purpose of making satisfaction to the disappointed "devisee: a very singular office; for in ordinary " cases, where a legatee or devisee is disappointed, " the Court cannot give rehef ; but here it inter- " poses 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 estate quousque tiU satisfaction " ' is made to the disappointed devisee.' I conceive " it to be the universal doctrine that the Coiu-t pos- " sesses power to sequester the estate till satisfaction " has been made, not permitting 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. Li the case to which I have referred. Lord " Loughborough uses the expression that the Court " ' lays hold of what is devised, and makes compen- " ' sation out of that to the disappointed party.' " ****** " It would be too much now to dispute this prin- " ciple, established more than a century, merely " on the ground of difficulty in reducing it to Digitized by Microsoft® 320 SUPPLEMENTARY LECTURES. " 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 will destined to the " devisee, not this estate, but another ; he takes by " the act of the Court (an act truly described as a " strong operation) ; 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 forfeiture or compen- sation ; that is to say, whether a person electing to take in opposition to the terms of an instrument for- feits absolutely aR benefit thereunder, or only, as Sir Thomas Plumer has expressed 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 wiU see that circumstances calling for a decision are not very likely to arise. In deciding to elect to talce either against or under a will, the person bound to elect wiU, in the very large majority of cases, be influenced only by his pecuniary interest. If the property bequeathed to him be more valuable than his own, he elects to take mider the will ; if less valuable, it matters Uttle whether the princiijle be forfeiture or compensation, since the whole subject-matter is insufficient to answer the claim of the disappointed legatee. It is, however, easy to suppose a case calling for a decision, and per- Digitized by Microsoft® ELECTION. 321 liaps 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 wliich he (the testator) is tenant for life only, with remainder to A. Here A., havmg a special affection for the family property, may elect to talce it, and then the question arises, does A. forfeit the whole ^100,000, or so much only of that amount as is equal to the family estate which he has taken in opposition to the will ? Upon this point I must, for lack of time, content myself by referring you to Mr, Swan- ston's note to the case of Gretton v. Haivard (a), and to the more recent authorities referred to in Jarman on Wills (6). You will, I think, be perfectly safe in assuming that compensation, and not forfeiture, is the Tule. The only remaining question of general principle in reference to the doctrine of election is one as to which no reasonable doubt really exists, but to which I advert chiefly that I may recommend to your perusal Mr. Swanston's able note on the subject (c). I mean the question whether the doctrine of election be a purely equitable doctrine, or, as Lord Mansfield on one occasion (and indeed even Lord Eedesdale on -another (d) ) contended, a doctrine of law as well as of equity. It would be vain to attempt to paraphrase the beautifully cogent argument of Mr. Swanston in (a) 1 Swanston, 433, note (a). (b) Vol. I., p. 373 (2nd edition) ; pp. 417, 418 (Srd edition). le) 1 Swanston, p. 425. (cZ) Birmingham v, Kii-wan, 2 Schoales & Lefroy, 444 (see p. 450). Y Digitized by Microsoft® 322 SUPPLEMENTARY LECTURES. 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 com-se of some matter in which the Court has abeady acquired jurisdiction — as where 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 apphcation 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 y. Green (a) was a case of this kind. There, by a settlement on the marriage of Edward Green with Elizabeth Green, the plaintiff, certain estates to which Edward Green was entitled as tenant in taU 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 settlement conveyed to similar uses. Upon the death of Edward Green, the defendant Edward Henry Green (his only son and heir-at-law) entered on the estates (a) 2 Merirale, 86. See, also, Broivra v. Brown, L. E. 2 Eq. 481, and cases there cited. Digitized by Microsoft® ELECTION. 323 to which he was entitled as tenant in tail in possession under the settlement, and treating the settlement as ineffectual to hind the estates to which his father was entitled as tenant in tail at the time of the settlement, hrought ejectment to recover those portions thereof in which the plaintiff took a hfe estate hy the settle- ment, and into which she had entered as tenant for life. The widow thereupon filed her bill, and an injunction was granted on the ground of election, to restrain the defendant from proceeding with the ejectment. The facts of the case just referred to suggest the observation that the doctrine of election apphes just as much to double claims under and against a settle- ment or other instrument as mider or against a will. I have hitherto, in the illustrations selected and in the language used, treated the doctrine as arising exclu- sively upon testamentary instruments, and this, partly because a very large proportion of the cases of election which arise, do in fact arise upon wills, and partly for the sake of brevity. You have only to recollect that where I have used the word " testator," the more com- prehensive expression " author of the trust " might have been more correct, though less intelligible ; and that where I have spoken of " wiUs" my observations apply to all instruments. I would fm^ther add, that for the sake of convenience I shall throughout the remainder of my lecture adopt generally the same limited phraseology as hitherto. (II.) I now pass to the second division of my task, viz., the mention of some of the more remarkable Digitized by Microsoft® Y 2 324 SUPPLEMENTARY LECTURES. classes of decisions establishing that under certain circumstances the doctrine of election does or does not apply. In reference to questions of tliis kind the leading rule is, that you must find on the face of the will a clear intention on the part of the testator to dispose of the property which is not his own. In this sense, the intention, as evidenced by the words of the will, is all important. Bear in mind, however, that this inten- tion is very different from the presumed intention which has been so frequently referred to as forming the groundwork of the doctrme of election. The latter is the presumed intention of the testator that the Jegatee, whose own property has been devised away, shall elect. The intention now under consideration is .merely the intention of the testator, as apparent on the .face of the will, to deal with any particular property. Here the rule is, that if the testator's expressions admit of being restricted to property belonging to him- self, they will not be applied to property over which he has no disposing power. Two very apt illustrations of the application and non-application of this general rule are afforded by the two cases of Diimmer v. Pitcher (a) and Shuttleworth v. Greaves {b). In the first the testator's will ran thus : " I bequeath " the rents of my leasehold houses and the interest of " all my funded property or estate." The testator had in fact no funded property at the date of his will, but there was funded property standing (a) 2 Mylne & Kesn, 262. (i) 4 Mylne & Craig, 35. Digitized by Microsoft® ELECTION. 325 in the joint names of himself and of his wife. After his death the wife claimed bj' right of sm'vivorship the funded property standing in the names of her husband and herseK, 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 win, his words might well be understood as applying to funded property at the date of his death, and that therefore he was not to be regarded as intending to dispose of the fimded 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, Shuttleivorth 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 will, 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 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. Digitized by Microsoft® 323 SUPPLEMENTARY LECTURES. So, again, where a testator devises land out of which his widow is dowahle, and dies, having bequeathed to her benefits by his will, the rule is clearly settled that the widow is not bound to elect unless you can discover on the face of the will 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 dif&culty. A power of sale or ^ trust for sale has gene- rally been treated as not inconsistent. The trustees, it is considered, may well dispose of the testator's interest in the property subject only to the widow's right of dower. On the other hand, a general power of leasing or of management affecting the whole of the lands is almost necessarily inconsistent with the notion of the widow's personally enjoj'ing 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 most recent cases (a) no fewer than thii-ty-three cases were cited. Agam, the same general pervading principle, that to raise a case of election the intention of the testator to dispose of what is not , his own must be perfectly (o) Parlter v. Sowerby, 4 De Gex, Maon. & Oor. 331. Digitized by Microsoft® ELECTION. 327 should be desirous to purchase the premises witliin six 3'ears, he, his executors, administrators, or assigns, should pay to the testator, his heirs or assigns, 600L for the purchase, upon having a good title made to him, Townley, his executors, admmistrators, or assigns. The testator died before the expiration of six years from the date of the lease. After his death, and within that period Townley declared his option to pur- chase according to the proviso ; and it was held that the purchase money belonged to the personal repre- sentative. The danger of these decisions is manifest. If an option of tliis kind can alter the entii'e quality of pro - j)erty after the lapse of two years, it may do so after a lapse of ten or fifteen ; and during the whole of that time the rights of the next of kin and of the heir at law may be left in an uncertain and precarious state, dependent in fact on the option of a third party. This in truth was what actually occurred in the recent case of Collingwood v. Roiv (c), in which, by (a) 1 Cox, 167 ; see also, U Vesey, 596. i'j) 14 Vesey, 591. (c) 3 Jurist (N.S.) 785. Digitized by Microsoft® 392 SUPPLEMENTARY LECTURES. an agi-eement dated 21st March, 1839, an option to pm-- chase was conferred, and it was lield that this option,, when exercised fourteen years afterwards, m 1853, operated to convert real estate into persona%- The- general dislike of owners of land to confer optional rights ranging over long periods, must no doubt render cases of this description rare ; hut it is diffi- cult to exaggerate the inconvenience of the doctruie,. and it is much to he regi'etted that the rule should not have been adopted of treatmg the property over ■ which the option may extend as land subject to the option. You may, I think, take for granted that the doctruie of Laices v. Bennett will receive no extension, it having been disapproved more or less by almost everj- judge under whose consideration it has come, even by those- who have followed it ; but, in jninciple, the distinction is extremely thin between cases of this class, and those- where property is vested in a mortgagee, subject to a power of sale — that is to say, subject to an option — under which he has right to sell the property and con-- vert it into money. Tliirdly. — As to the effects of conversion. These have been generally stated to be, to make- personal estate real, and real estate personal. Thus, take monej^ directed to be laid out on land. (a.) It was, of course, descendible to the heii-. (13.) 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). (a) See Sweetapple r. Biudon, 2 Vernon, 536. Digitized by Microsoft® CONVEESION. 393 (y.) Agaiu, under tlie old law, land was not liable to simple contract debts ; and in tlie old cases dicta are to be found that money covenanted to be laid out in the pui'chase of land, stood on the same footing as land, and was not liable to simple contract debts (a). On the other hand, an interest of this kind was, in Equitj^ subject to a judgment debt, just in the same way as the land itself (b). (6.) Again, before Lord Langdale's Act (the Wills Act), an infant under the age of twenty-one (how eai'ly maj- be matter of doubt, but certainty at seven- teen j-ears old) might make a will of personal estate. Well, when an infant was absolutely entitled to money hable to be laid out in the purchase of land, he could not by will dispose of it during his minority. This was assumed in Earlom v. Saunders (c), just now re- ferred to. (e.) So I apprehend (though I am not aware that the point has ever been distinctly decided) money liable to be laid out on the piu-chase of land could not, before the late Wills Act, have been devised bj' an unattested will. The will must, I conceive, have been executed with the formalities required by the Statute of Frauds. Certainly money of this kind would not (a) The operation of this rule, if understood as applying in all its breadth, would be of the strongest kind. A man might die entitled in law . to lOOOZ. cash, yet, because it was liable to be laid out in the purchase of land, his heir would, under the old law, take it free from any obligation to pay simple contract debts. (S) Frederick v. Aynscombe, 1 Atkyns, 392. (c) Ambler, 241. Digitized by Microsoft® 394 SUPPLEMENTARY LECTUEES. pass by a will professing to deal only with personal estate (a). 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 qualify, in the words just used, the statement of the operation of the doctrme of con- Tersion, it having been held, in certain cases, that persons not claiming in any way under the author of the trust, cannot invoke its aid (h). Thus, where land has been conveyed upon trust for sale, and to pay debts, and stand possessed of the residue upon trust for the settlor as personal estate, and before sale the settlor has died, it has been held that probate duty is not payable upon the settlor's interest in the surplus proceeds of the unsold lands. The result of the trust for sale, it is considered, is merely to create an equity as between the real and personal representative, and the Crown has no right, for merely fiscal purposes, to say that what is in fact real estate shall be deemed to be personalty (c). (a) Gillies v. Longlands, 4 De Gex & Smale, 372. Co) This qualification may now te regarded as unnecessary. According to the latest decisions (Attorney-General v. Brunning, 8 House of Ijords Cases, 265 ; Forbes v. Steven, L. E. 10 Eq., 178) the anomalous exception commonly supposed to have been established by Matson v. Swift, 8 Beavan, 368, and Custance v. Bradshaw, 4 Hare, 315, does not exist. (c) Matson v. Swift, 8 Beavan, .368. So it was held, that the Crown could not claim by forfeiture a felon's share of proceeds of real estate, unless actually converted ; Thompson's Trusts, 22 Beavan, 506. But see the last previous note. And as respects forfeiture, the student should bear in mind that forfeitures for treason and felony have been recently abolished by the 33 and 34 Vict. cap. 23, which contains detailed provisions for the manage- ment and application of the property of convicted persons. Digitized by Microsoft® CONVERSIOX. 395 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 fom- classes of cases adverted to at the outset of my lecture, — i.e., . 1st. — Cases arising under wills, and separately in respect of these — (a.) Cases of conversion of land into money ; and (/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 mto money. Take a simple case. A testator devises all his real estate to trustees, upon trust to sell and divide the proceeds of sale equalty between A. and B. What is the result when A. and B. both die in the testator's lifetime ? and what when one only of them (say A.) ? In the first case, you observe, the purposes for which the conversion was directed fail totally : A. and B. are both dead. The whole object of the conversion is at an end. In the second they fail partially only ; because B., one of the two legatees, has sur- vived, 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 undis- posed of by the wiR ; in the second, one moiety of the proceeds of sale is undisposed of. Digitized by Microsoft® 396 SUPPLEMENTARY LECTUEES. Uiidei' these circumstances, two principal questions arise, — viz., First.— To what extent is the trust for conversion stni in force ? 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 adiiiit of a ready answer. For since both A. and B. are dead, the whole purpose and object of the tes- ta:tor in dkecting 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 j)osition as if no trust to sell had ever been inserted in the will, and the land descends to the heir. Of course j'ou must understand me as j)uttiDg a simple case of trust to sell and pay half of the i)roceeds to A., and the other half to B. If any other trust attached upon the proceeds, say a trust for j)ayment 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 jjurposes for wliich the conversion was directed ; but it would fall within the same prin- ciple as the case now next to be considered, viz., where A. alone dies. Next, then, how does the matter stand when A. alone dies? Here the trust for conversion stiU subsists, for without its exercise, B., the survivor, cannot re- ceive his moiety of proceeds : the other moiety there- fore is, by virtue of the will, a moiety of personal estate. To whom then shall this lapsed moiety, which Digitized by Microsoft® COXVERSION. 397 bj' the doctrine of conversion is personal estate, belong? To the heir, or to those entitled imder the will to the personal estate ? This was the question in the great case of Ackroyd V. Smithson (a), in which, according to tradition. Lord Eldon earned his earliest laurels, by establishing that the right, under these circumstances, was with the hen-, 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 testa- tor's personal estate by " act of law," but they can take his real estate, or the proceeds of his real estate, as legatees only, and by virtue of some intention to that eifect on his part. It is, however, clear that the testator never meant to give them anj'thing. The result therefore is that, as between the heir and next of kin, the former wiU take A.'s moiety of pro- ceeds. 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 IJroceeds of sale shall, for all intents and purposes, be deemed part of his personal estate (6). Neglecting, however, any such special claim founded (ffl) 1 Brown's Chancery Cases, 602. (b) See Lewin on Trusts, 121—123 (4th eel.), 128—130 (5th ed.). Digitized by Microsoft® 398 SUPPLEMENTARY LECTURES. on the peculiar frame of any given will, the result may be thus summed tip : — When the trust for conversion fails wholly, the heir takes the land as real estate. When the trust for conversion fails partially, the hen- takes the share of proceeds but as personal estate {i.e., it would go to his, the heir's, personal repre- sentative or next of kin^ . In Smith V. Claxton (a), you vail find each of these cases verj' well illustrated. 1. — 0.) Next, as regards the case of a wiU, and of money directed to be laid out in the jiurchase 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 purchase of land, to be settled upon trusts, which failed wholly or partially, the heir had not an equit- able right to the lapsed interest in the money so be- queathed. It was, in fact, reserved for Lord Cottenham to set this question definitively at rest by deciding that the analogy of the cases with regard to conversion of real estate into personal held perfectly, and that the money fund, on failure of the trusts respecting the real estate,, went to the next of kin or residuary legatee. I allude to the case of Cogan v. Stevens (h), where a testator gave a sum of 30,000L to be laid out on land which, was to be settled on various relatives in sticcession, with an ultimate trust for a charity. The money was (a) 4 Maddock, 484; and see Jessopp v. Watson, 1 Mylue & Keen, C65. (J) 5 Law Journal (N.S.), Clianc. 17. Digitized by Microsoft® COXVEESION. 399 never laid out, and all the valid trusts having failed or expii-ed, and the trust for charity being invalid, the question arose who was entitled to the 3O,O00L ? and Lord Cottenham decided that it fell into the residue of the personal estate (a). 2. — Let us now take the case of a total or partial failvu-e, where the trust for conversion is created by settlement or other instrument " inter vivos," and adopt the same order as that j)ursued in regard to wills. 2. — (a.) And first in reference to a conversion of land into monej'. Suppose, for instance, a conveyance, of real estate bj' 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 thuik, it might strike you that this is the saiae identical case as that first put with reference to a will, but it is onlj' up to a certain point 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, (o) This decision was followed by Loi-d Hatlierley (when V.-C. Wood) ■in Keynolda v. Godlee, Johnson, 536, see p. 682 ; which case also estab- lishes that where money is directed to be laid out in land to be held on trusts which do not exhaust the whole interest, and in consequence the money devolTes on the next of tin of the author of the trust, the next of kin take the money as personal estate, and not, as a rigid application of the decisions in reference to conversion of land into money might seem to require, as realty. Digitized by Microsoft® 400 SUPPLEMENTARY LECTURES. it still subsists, a sale being still requisite for the pur- pose of giving B. liis moiety of proceeds. But as to the person who is to reap the benefit of the death of the cestuis que trust, there is a material distinction. "Where both A. and B. die, and the trust for conversion is gone altogether, the heir 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. What remains undisposed of by the deed is a moiety of the proceeds of sale. This is personal estate. When did it become so ? According to the rule given in the earlier part of the Lecture, the answer is, at the date of the execution of the deed of settlement, and not merely when the trust for sale arose. The settlor, therefore, in his lifetime, took immediately on A.'s death, by waj'^ of resulting trust, this moiety of personal estate, and it forms part of his general personal estate, and must devolve as such. This was the true point of the decision in Clarke v. Franklin (a) already discussed. There the convej^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 (a) 4 Kay & Jolinson, 257. Digitized by Microsoft® CONVERSION. 401 the deed, by way of resulting trust, and as personalty, so much of the proceeds of sale as was invalidly given to charity. 2. — (/3.) The only remaining ease is that of a con- version of money into land by settlement ; and here too the analogy is perfect. Thus a man on his marriage covenants to pay lOOOL to trustees, to be 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 all the tises of the land, except for the benefit of the settlor himself, are gone. The purposes of the trust for conversion are at an end altogether. The money is, as the phrase is, at home in the settlor's pocket ; there is no obligation on his part to lay it out, and no room for the application of the maxim, that Equity considers that done which ought to have been done — for the settlor could be under no obligation to 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 whoUy failed, then there was an obligation to pay the lOOOZ. to be laid out on land, then Equity will consider that done which ought to have been done, and will, at the suit of the heir of the settlor, order the money to be laid out or paid to him (b). (a) Pulteney v. Darlington, 1 Broivn's Chancery Cases, 223. (5) Leehmere v. Leohmere, Cases, temp. Taltot, 80. D ]> Digitized by Microsoft® CoNVEESioisr. — Lecture II. The task which I propose to myself this evening is to complete as far as I am able the general sketch of the doctrine of conversion, which I commenced when we last met. On that occasion I endeavom'ed 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 stiU, I trust, sufficiently so to convey the general principles of the doctrine; and it is not my intention, on the present occasion, to enter with any great minuteness upon the points then discussed. My chief object now is to touch upon a few questions intimately connected with the general doc- trine as then explained, j^et admittmg of a distinct consideration — to add, if I may be allowed the meta- phor, the necessary offices and appurtenances to the main building wliich I attempted to construct at our Digitized by Microsoft® CONVERSION. 403 last meeting. This I shall do under two principal heads, viz. : (I.) Conversion by title or authority paramount. (II.) 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 conver- sion, 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 ele- mentary question was in substance this : Has the author of the trust said that the land shall at aU events be sold and turned into money? oi', on the other hand, Has he said that the money shall at all events be laid out in land ? And in each case, as I pointed out, assuming the answer to be in the affirmative, a Court of Equity holds that no accidental delay in effecting the inten- tions of the author of the trust shall vary the rights of parties. The Court treats as done that which ought io 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. D D 2 Digitized by Microsoft® 404 SUPPLEMENTAEY LECTURES. I have thought it right thus to recall to you the' leading features of the general doctrine of conversion in order to hrhig into more salient prominence the difference between these and those of the subject first selected for consideration this evenmg, viz. : " Conver- sion by title or authority paramount." By tliis phrase I mean to characterize those cases in which, without any wish or intention of the owner of property, its actual natm'e becomes, by the exercise of some legal paramount authority, changed fi-om real estate to personal, or from personal estate to real. I shall not be able to refer to any instances in which the question has arisen with reference to a change from personal estate to real, but the principle would obvi- ously be the same in either case. The leading instances of conversion by authority paramount wiU, I think, be found to range themselves under one of the three followmg heads : — 1. — Conversion by Act of Parliament, as, for in- stance, where, under the authority of some rail- way or other Act, real estate is taken 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 Legislature, or the Cour.t of Bankruptcy, or the Court of Chancery, takes the property of the landowner, and by an authority alto- Digitized by Microsoft® CONVERSION. 405 gether superior to liis wishes or intentions converts it de facto into money. And under these circumstances questions frequently arise respecting the extent to which this conversion operates as between the real and personal representative of the original owner. Thus, as you see, the question here is not, Is the property, though not converted, to be treated as con- verted ? but, Is it, though de facto converted, to be treated to any and what extent as not converted ? The question is of a converse kind to that discussed on the occasion of our last meeting. 1. — Taking, first, cases of conversion by Act of Par- hament, the simple point as to these is, what is the intention of the statute ? The power of the Legislature is one to which aU Courts must succumb. No rule of Equity can vary the expressed intention of an Act of Parhament ; 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 authorising the property of private individuals to be taken for public purposes, ought to be construed so as to vary as little as possible the rights of third persons, and not to be extended beyond their main object. The main object of the Legislature is to ac- quire the land for purposes of supjDosed public benefit, not to change the quality of the property. Subject, however, to this general principle of con- struction, the win of the Legislature, of which 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® 406 SUPPLEMENTARY LECTUEES. The case of Richards v. Attorney -General of Jamaica (a), affords a good illustratioii of the powerful operation of conversion by Act of Parliament. A testator resident in Jamaica, and seised of plan- tations and slaves in the Island, by his will, dated June, 1834, after giving certain bequests, proceeded as follows : — " Also I give, devise, and bequeath, share " and share alike, unto Eosanna Eichards and her " children, aU my right, title, and claim to compensa- " tion, such as may be awarded to me, as my portion " of the compensation fund, for the emancipation of " such slaves as may belong to me, and be living, on " the 1st of August, 1834." This will was not attested so as to j)ass real estate ; but was properly executed to pass personalty. By the law of Jamaica, slaves could only be devised by a wiU executed with the formahties 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 theh- services as slaves. The testator died before this period of manumission arrived. The Court in Jamaica decreed, that the com- pensation money partook of the nature of real estate to the same extent as the slaves, and did not pass under the will. The Judicial Committee of the Privy Ccimcil, however, upon appeal, decided that (treating the slaves as real estate) the Legislature became pur- (a) 6 Moore's Privy Council Cases, 381. Digitized by Microsoft® CONVERSION 407 chasers, under 3 & 4 Will. 4, c. 73, from tlie date of the Act, the vendor retaining a limited interest 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 ^vill. But while acknowledging the absolute necessity of making the very words of the Act of Parliament 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 ConsoUdation Act, 1845 " (a), an Act which is almost invariably incorporated into recent Acts authorizing the expro- priation of land. The persons whose land is thus forcibly taken from them may commonly be ranged imder one of the three following heads : — a. Persons who, being absolutely entitled, submit to the compulsion put upon them, and contract for the sale of their land. j3. Persons who, though absolutely entitled, will not so submit, y. Persons under disability, or persons having only limited interests (i.e., cases where the land is in settlement). a. — In the first case, viz., that of a person absolutely entitled but contracting, though under compulsion, for (a) 7 & 8 Yict. c. 18. Digitized by Microsoft® 408 SUPPLEMENTARY LECTUEES. 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 aU intents and purposes personal estate (a). j3_ — ^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 in 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 circumstances 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 or a lunatic (c), the purchase-money is paid into Court under the 69th section of the Lands Clauses Consolidation Act ; and it is by the express direction of the Act liable to be laid out again on the purchase of land, subject to pro- visions for an intermediate investment on Grovernment (a) See Ex parte Hawkins, 13 Sim. 569. (b) But a mere notice to treat, followed liy the deatli of the landowner, ■without either contract or the exercise of the compulsory powers of the Act, is insufficient to effect a conversion ; Haynes v. Haynes, 1 Drewry & Smale, 426. (c) The decision, Ex parte Flamank, 1 Simons (N.S.), 260, must be ■viewed as resting on its own special circumstances. As respects land sold under the statutoi-y jurisdiction in lunacy, it is to he observed that the proceeds of sale are, by the statute, carefully impressed with the natiire and quality of the land sold ; see 16 & 17 Vict. c. 70, s. 119; Ke Wharton, 5 De Gex, Macn. & Gor. 33. Digitized by Microsoft® CONVERSION. 409 Stock; and the money is therefore, in the ej^e of a Court of Equity, land. Bi a recent case (a), Vice -Chancellor Kindersley thus summed up the decisions : — " It appears then, upon " the authorities, that when the circumstances of the " case have brought it under the 69th section of the " Lands Clauses Consolidation Act, the money has " been held to bear the character of realty ; but if, on " the other hand, the cu'cumstances have brought the " case under the 78th section of the Lands Clauses " Consolidation Act, then the money has been held " personalty." The general result of these Acts may then be said to be, that when an owner is " sui juris" and absolutely entitledj a conversion is intended to be effected : and this seems not unreasonable, for he can himself regu- late the interests inter se of his real and personal representative. Where, on the other hand, the owner is not sui juris or the property is in settlement, then the quality of the property is not intended to be altered, and the money stands in the place of the land as land. 2. Next as to conversion under the paramount autho- rity conferred by the Bankruptcy Laws. The case oi Banks v. Scott (b), decided by Su- John Leach, may be usefully referred to upon 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 (a) Harrop's Estate, 3 Drewry, 733. {d) 5 Maddook, 493. Digitized by Microsoft® 410 SUPPLEMENTARY LECTURES. 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 his proportionate share of the losses of the firm. Parts of the estates 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 assignees. The question was, what were the rights of the heir of Scott in respect of the surplus produce of sale of the estates sold under the bankruptcy ? Sir John Leach in his judgment expressed liimself thus : — " As to the real estate sold or contracted to be sold " during the life of the bankrupt Scott, it must at his " death be considered as converted into personalty; " but as to the real estate which was unsold and un- " contracted for at the death of the bankrupt, it is to " be considered as descending to his heir, subject to " the charge created by the provision of the Bank- " ruptcy laws for the payment of his debts. It can " make no difference in principle, whether such a " charge be created by the provision of the law or " the provision of the party. As far as the real estate " is not exhausted by that charge, it is the property " of the heir." The question, whether even the surplus proceeds of real estate sold in the banki-upt's lifetime might" not have been held to be real estate, seems hardly to have been argued ; and it may be doubted whether. Digitized by Microsoft® CONVERSION. 411 according to the principle of the next decision to which I shall refer, the point might not have been successfully pressed. 3. As to conversion by the Court of Chancery. — Where landed property is subject to debts and charges, say, where a landowner dies' indebted, testate or intes- tate, the Court, as you are aware, has power to sell his land for paj-ment of his debts. But obviously it is impossible so exactly to measiu-e the quantity of land required for payment of debts as not in some degree to sell more than necessary. A question then arises, what is the character of the surplus proceeds ? Eeal estate or personal. This poiut is covered by a decision of the present Master of the Rolls in Cooke V. Dealey (a). In that case the testator, Samuel Cooke, directed that all his debts should be paid by his executors out of his personal estate. He devised his real and per- sonal estate to his wife for life, and after her decease. he bequeathed 1000^. to the plaintiff, and, subject thereto, he devised and bequeathed one foui'th of his real and personal estate to his daughter, Eliza Dealey, and the rest to other persons. The testator survived his wife and died in 1851. A suit was instituted for the administration of the estate, to which Eliza Dealey and her husband were parties. By the decree, the usual accounts were directed, and the real estates were ordered to be sold (o) 22 Beavan, 196. The student may with advantage read and distin- gnish the cases arising upon the felling and sale of timber, of which Dyer J». Dyer, 34 Beavan, 501, is one of the most recent. Digitized by Microsoft® 412 SUPPLEMENTARY LECTURES. for the payment of the dehts and legacies ; and they were sold accordingly. Subsequently to the decree and to the sale, Eliza Dealey fell into a state of mental imbecility, and the estates, in consequence, were vested in the purchasers, under the Trustee Act. Eliza Dealey died, and in April, 1855, her husband took out administration. After payment of the testator's debts and legacies, there still remained a surplus of the produce of the real estate in Court. The hus- band and administrator of Eliza Dealey then pre- sented a petition, whereby he claimed one fourth of the fund in Court as personal estate ; but this claim was contested by her heir-at-law, who insisted that the surplus fund still retained the character of realty. In delivering judgement, the Master of the EoUs after refemng to the general rule, that the conversion must take place only to the extent of the object re- quired, and to certain cases in Lunacy which had been relied upon by the counsel for the husband, con- tinued thus : " I think, however, that the authorities cited, and " rules in lunacy, do not alter the principle in these " cases. More of the real estate was sold than was " necessary ; of coiirse, the conversion is complete to " the extent to which the purchase-monej' was re- " quired for the particular object for which the sale " took place, namely, for the payment of the debts and " costs, but the excess, though in the form of money, " remamed, as before, impressed with the character "of land." Digitized by Microsoft® EECONVEESION. 413 (11.) I pass to the subject of reconversion. By reconversion I mean that notional or imaginary process by which a prior constructive conversion is annulled and taken away, and the constructively con- verted property restored in contemplation of a Court of Equity to its original actual quahty. Thus real estate is devised upon trust to sell and to pay the proceeds to A. By virtue of this absolute trust the real estate is in Equity converted into personal 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 " Eeconversion." The origin and efficacy of reconversion consists in the right of every absolute donee or owner to dispense with, or forbid the execution of, any trust in the per- formance of which he alone is interested. Thus, if a testator by his will dii-ects his executor to lay out a sum of 1000^. in the purchase of an annuity, the annuitant has a right to say to the execu- tor, " Give me the lOOOL 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 annuity itself. This is a principle of very wide range. Its applica- tion to cases of conversion is at once apparent. In (a) Bayley v. Bishop, 9 Vesey, 6. And even wliere 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 BeaTan, 303. Digitized by Microsoft® 414 SUPPLEMENTARY LECTURES. the case just supposed, of lands devised upon trust to seU and pay the proceeds to A., A. is entitled to the proceeds of sale ; and heing absolutely entitled, he has a right to dispense with the execution of the trust for sale, in which he alone is interested. He has a right to " elect" to take the land instead of the proceeds of sale. This right of election forms the groundwork of the doctrine of reconversion. In truth it may be said that reconversion depends upon " election." I may. as weU point out the different sense in which I am now using the word " election," from that in which it was used when discussing in a former lecture the doctrine of election commonly so called. Then I treated of the obligation to elect between two species of property or benefits. Now I am speaking of the right to elect to take, in lieu of the proceeds or fruit of any given property, the property itself. 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 may elect so as to effect a reconversion. 2. Hov,- an election may be made, 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 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 imderincapacityj Digitized by Microsoft® RECONTEESION. 415 as an infant or a lunatic, be permitted to alter the nature of the property to which he is entitled ? Ac- cordingly it is weU 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 sum 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 an election. And in Ashby v. Palmer (6), 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 hj " the testatrix to her daughter only as vioney. 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 particular consideration. (a) 1 Peeie 'Williams, 389. (6 1 Merivale, 296. And see Ee Wharton, 5 De Gex, Maon. & Gor. 33. Digitized by Microsoft® 416 SUPPLEMENTARY LECTURES. And first, suppose the case of money directed to be laid out in the purchase of land, and the feme covert absolutely entitled to the land. In this case, before the late Fiues 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 5000Z. 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., con- veyed land to the wife. Then the husband and wife sold the land back for the same 5000Z., levying a fine of the land. There was, however, a mode of avoiding this cn- cuitous process, which is thus described by Lord Hard- wicke in the case of Oldham v. Hughes (a) : — " As to Mrs. Bourne's capacity, if this money is to " be considered as real estate, she is afetne covert, and " cannot alter the nature of it barely by a contract or " deed ; for, to alter the property of it, or com-se 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 this Court, " whereby the wife may consent to take this money as " personal estate ; and upon her being present in " Com't, 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 (a) 2 Atkyna, 453. Digitized by Microsoft® RECONVERSION. 417 " law would the land, and she .may dispose of it to " the husband, or anybody else ; and the reason of it " is this, that at law, money so articled to be laid out " ia land is considered barely as money till an actual " investiture, and the equity of this Court alone views " it in the light of a real estate, and therefore this " Court can act upon its own creature, and do what a " fine at Common Law can upon land; and if the " wife had craved aid of this Court in the manner I " have mentioned, she might have changed the nature " of this money which is realised, but she cannot do " it by deed." Next, as regards land directed to be sold, and the proceeds to be paid to a married woman. Here the husband and wife might, under the old law, so long as the land remained unsold, by levying a fine, bar aU the wife's interests in the proceeds to arise from the sale of the land. This was the point in May v. Boper (a). There a married lady, being entitled to a share of the proceeds of real estates directed to be sold, joined mth 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 aU interest that she could " derive either from the land or the proceeds of " sale of it." The result, therefore (leaving out of consideration the (a) i Simons, 360. Digitized by Microsoft® E E 418 SUPPLEMENTARY LECTURES. Fines and Eecoveries Act, to whicli I shall presently allude), was, that in the case of a married woman en- titled either to land to be purchased with' money, or money to arise from the sale of the land, the husband might acquire the property in its unconverted state, although the wife had in strictness no capacity to elect ; that is to say, in the case of money directed to be laid out on land, either by making a sham pur- chase and levying a fine of the land fictitiously pur- chased, and reselling, or by consenting in Equity after the mode suggested by Lord Hardwicke ; and in the case of money to arise from the sale of land, by levying a fine. Such was the state of the old law ; and under the Act for the Abolition of Fines and Recoveries, the result is precisely similar. That Act in substance says (a), that a married woman may, with the con- cm-rence of her hrrsband, and with the formahties there prescribed, dispose of any estate at Law or in Equity, or any interest (I condense the v>rords pur- posely) in any lands, or money to be laid out in the purchase of lands. In cases therefore where, at the present day, a married woman is entitled to money directed to be laid out on land, all that is requisite in order to acquire fuU dominion over the monej' 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, (a) 3 & 4 Wm. 4, cap. 74, s. 77. Digitized by Microsoft® RECONVERSION. 419 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 paj^able to a married woman. The Fines and Eecoveries Act, as I stated just now, enables a married woman to dispose of any interest in land ; and it is impossible to deny that the proceeds to arise from the sale of land are an interest in land. Indeed, so strong is the operation of the statute, that it is held that although a married woman cannot in general dispose of her interest in personal estate, so as to bind her right by survivorship (a), yet where that personal estate consists of monies to arise from the sale of real estate, she may do so by deed acknow- ledged (b), the subject-matter of disposition being then an interest in land, and falHng therefore within the words of the statute. This was the point decided in Briggs v. Chamberlain (c). There a married woman, bemg entitled to a share of the proceeds of real estate directed to be sold, by deed acknowledged, joined her husband in a mortgage thereof, the effect of which mortgage was the point for determination. The Vice- Chancellor, after stating the words of the Act, continued thus : — ' " These words, therefore, enable a married woman, (a) Pp. 123-126, ante. (J) Of course any election by the husband and wife by deed not acknow- ledged would be una7aiirng : see Sisson i^. Giles, 32 Law J. (N.S. Chauc. 606 ; 3 De Gex, J. & Smith, 614 ; Franks v. BoUans, L. E. 3 Ch. App. 717. (c) 11 Hare, 69 ; and see Bowyer v. 'Woodman, L. K. 3 Eq. 313. £ E 2 Digitized by Microsoft® 420 SUPPLEMENTAEY LECTURES. " by her deed acknowledged according to the provisions " of the Act, to dispose of any interest in land, either " at law or in equity, or any charge, lien, or rncum- " brance in or upon or affecting land, either at law or " in equity. Now, what is the property in question ? " It is an interest in land which has been given by the " wiU of the testator to a lady who has executed a " disposition under this Act. The argument which has " been addressed to the Court against giving effect to " the disposition so made, has been — that, as the land " was directed by the will to be, and has been, converted " 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 substituted 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 conclusion. Tliis decision " directly conflicts with the case of May v. Roper. " I cannot distinguish the two cases. A difference " suggested is, that in one case the interest was " reversionary ; but the question does not turn on, " the difference between an interest in possession " and an interest in reversion. The question is, " whether it is an interest in land which can pass by " a fine, or by a deed having a lilie effect." And, after further discussing the authorities, the Vice- Digitized by Microsoft® EECONVERSION. 421 'Chancellor held that the wife's interest was bound by the deed (a). It results then that a married woman, absolutely •entitled to the proceeds to arise from the sale of real estate, may, with the concm-rence of her husband, make an absolute 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 effect a reconversion. The question therefore, in respect to personal <;apacity 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 cannot elect, can Jievertheless, though the special powers of disposi- tion belonging to her and her husband, effect a reconversion. 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 monej', is entitled to the whole absolute interest in possession. But how will the case stand where a person is en- titled, not to the whole subject-matter, but only to an undivided share ? Can he then elect? The answer to this question may be different ac- cording as the subject-matter consists either of money (a) In Tuer v. Turner, 20 Beavan, 560, the same point was decided in the same way by the present Master of the Kolls ; and see Bowyer v. Woodman, L. E. 3 Eq. 313. Digitized by Microsoft® 422 SUPPLEMEKTARY LECTURES. to be laid out on land, or land to be turned into money. Take the last case first. Suppose land devised upon trust to sell, and to pay one moiety of the proceeds to A., and the other moiety to B. Here, how can A. alone, or B. alone, elect to take the land ? Each is entitled to have the whole land sold. A sale of an undivided moiety would obviously produce a far less sum than woidd be receivable in respect of one half of the proceeds of sale of the entirety. What right has either to compel the other to forego a sale of the whole property ? neither can, therefore, as against the other, elect to take any portion of the land as land ; and there can, therefore, be no reconversion into land through the ordinary operation of the doctrine of election. This was one of the points decided in Holloway v. Badcliffe [a). In that case a testator gave land to his widow for life, and, if his son survived her, to hhn absolutely ; but if he died in the lifetime of the wife (which event hapi^ened), then upon trust to sell and hold the proceeds upon certain trusts, under which the son took two thirds thereof. The son by his will affected to devise the land as real estate, and it was urged that his interest in the proceeds of sale was tO' be regarded as of that qualitJ^ 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 (a) 23 Beavan, 163. Digitized by Microsoft® RECONVERSION. 423 " widow, was for the benefit of all the next of kin ; and " unless thej^ aU concurred in electing to take the pro- " perty as land, the trust took effect. It would be " repugnant to the principles on which the doctrines " of conversion and reconversion rest, to hold that one " of the legatees of an undivided share in the produce " of real estate directed by the testator to be converted " into personalty could, without the assent of the " others, elect to take his share as unconverted, and in " the shape of real estate." Next supj)ose the case to be that of a sum of money dii-ected to be laid out on the purchase of land to be settled upon trusts under which, in the events which have happened, the land would belong as to one undi- vided 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 you to the case of 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) 1 Peere Williams, §89. Digitized by Microsoft® 424! SUPPLEMENTARY LECTURES. A. died, leaving an infant heir; and B. and C, together with the infant heir, filed a bill for lOOOL The judgement 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 their " two-thirds in money, let it be paid to them ; for it is " in vain to lay out this money in land for B. and C, " when the next moment they may turn it into money ; " and equity, ]ike natm-e, 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 talie 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 monej-, — shall be reconverted ? Tlie case differs from that before put Digitized by Microsoft® KECONVEKSION. 425 » to 3'ou of tenants in common of proceeds of sale only in this circumstance, that it is not necessarily, or even presmnably, for the interest of the tenant for life to insist on a purchase being made. In strictness, how- ever, the remamderman 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 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 diffi- culty. In the note of Messrs. White and Tudor to Fletcher v. Ashburner (a), to which I have already re- ferred you, the general result of the cases upon this point is thus condensed : — A remainderman may elect, but not so as to affect " the interests of the owners of prior estates." Of course if it be meant by this that a remainder- man may, as between his real and personal represen- tatives, say that a particular reversionary interest to which he is entitled shall be treated as monej' or land, the jproposition is indubitable. Even a tenant in common of proceeds of sale of land directed to be sold, may say expressly the proceeds shall be treated as land; but the question we are here discussmg is, whether a remainderman can, by the mere exercise of Ms will, perform that act of election by which pro- perty is to be deemed as reconverted into, its actual character ? In the case of Triquet v. Thornton (h), it certainly (a) 1 Leading Cases in Equity, 685. (6) 13 Vesey, 345. Digitized by Microsoft® 426 SUPPLEMENTARY LECTURES. 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, dm'ing the lifetime of the tenant for life, by election reconvert the fund as between his heir and pei'sonal representatives. But if this be so, this reconversion is, at all events, of a conditional or qualified kind only. Thus, to revert to our former illustration (money articled to be laid out upon land, to be settled uiDon A. for life, remainder to B. in fee). Now, according to Triquet v. Thornton, B. may, so long as the money has not actually been laid out, exercise an election to take it as m.onej, subject to A.'s rights, and this exercise of election will be operative as between his real and per- sonal representatives. But how if A., the tenant for life, should subsequently insist on the money being laid out on land ? Then, I conceive, the effect of B.'s election must, at all events, be frustrated, and the land must go to his heir. Such, I think, must be the view, even if the decision in Triquet v. Thornton is to prevail. On the other hand, the observations of Lord -Justice (then Vice-Chancellor) Knight Bruce, in the recent case of Gillies v. Longlands (a), seem to point to the stricter and sounder view, that so long as other rights intervene, the remainderman cannot elect — cannot re- convert — though, of course, no one could dispute his right expressly to regulate the devolution of any pro- (a) i De Gex & Smale, 372. Digitized by Microsoft® RECONVERSION. 427 perty as between his real and personal representa- tives {a). 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 cliildren of herself and her husband, in terms giving them life interests only. The property was sold under a power of sale, and not reinvested in land. The wife had affected to treat the investment arising from the proceeds of sale as personal estate ; and it was argued that her ulterior' reversion, subject to the life interests, must be re- garded as personal estate. But Lord Justice (then Vice-ChanceUor) Knight Bruce, in delivering judge- ment, said, — " The husband died in 1835, and three children of " the maniage, 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 property, because her cliildren 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 (o) The judgement of Lord Westbury, in the case of Sisson v. Giles, 32 Law J. (N.S.) Chanc. 606 ; 3 De Gex J. & Smith, 614, points to the conclusion that, in order to effect a reconversion by the mere process of election, the party or parties electing must possess the entire absolute ownership in the subject matter to be reconverted. Digitized by Microsoft® 428 SUPPLEMENTARY LECTUKES. other words, what will amount to an election to take the property 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 declaration of intention on the pai't of the owner of i^roperty that it shall be deemed either real or personal estate is "per se," sufficient to bind those claiming under him, without any reference to the actual state or condition of the property at the time. Thus, take the case of land directed to be sold and the proceeds of sale paid to A. As to any personal estate, from whatever source arising, A. may, by express declaration, say that as between his real and personal representative, that personal estate shall be real estate ; and so, therefore, he may of course do this as respects the proceeds of sale of this real estate. But reconversion by means of election, which we are here considering, is an offshoot of the general doctriae that property (in the case put, the real estate directed to be sold) though in Equity of one quahty, is in fact of another quality (in our particular instance, though in Equity x^ersonalty, is m fact realty). In this state of thmgs it is held that if the absolute owner unequivo- cally shows Ms desire 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, tliis expres- Digitized by Microsoft® RECONVERSION. 429' 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 ap- pear, it is quite sufficient if an intention existed to take the property in its actual state. Thus in HarcourtY. 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 be an intention strictly to convert ; that is to say, that, knowing that the money was impressed with the character of land, the party must say : ' I ■'mean that it shall no longer be land, but it shall be ' m its actual form of money.' I do not, however, think that that is the correct view of the law. It is quite sufficient if the Court sees that the party means it to be taken in the state in which it actually is. Whether he did or did not know that, but for some election by him, it would be turned into land, is quite immaterial. If, being money, the party absolutely entitled, indicated that he wished to deal with it as money, and that it should be considered as money, whether he knew or did not know that, but for that wish, it would have gone as land, ap- pears to me to be wholly immaterial." Upon the question what acts wiU be sufficient to indicate an election, it is difficult to lay down any distinct rule. Perhaps the best general statement is (o) 2 Simons (N.S.), 12, 46. Digitized by Microsoft® 430 SUPPLEMENTAEY LECTURES. that given by Lord Cotteiiliam in the case of Cookson V. Cookson (a), in the following words : — " All the cases establish this, that where the conver- sion has not, in fact, taken place, and the interest vests absolutely, whether in land or money, in one person, any act of his indicating an option in which character he takes or disposes of it, will determine the succession as between liis 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 has generally been viewed, and justly so, as affording a strong indication of intention to elect ; and though in one case (&) Sir William Grant seems to have considered that an entry for two jeais was too short time to amouiat to an election, the authority of that decision is open to considerable doubt. So the circvimstance of granting leases reserving rent to the party entitled, his heirs or assigns, would afford a tti'ong indication of election (c). So any acts showing an intention to treat the trust as at an end. In Davies v. Ashford (d), by a marriage-settlement, (a) 12 Clark & Finnelly, 146. (6) Kirkman v. Miles, 13 Vesey, 338. (c) Crabtree v. Bramble, 3 Atkyns, 680. (d) 15 Simons, 42. Digitized by Microsoft® EECONVEESION. 431 real estates were conveyed to trustees in trust to sell and to hold the proceeds in trust for the husband and wife for their hves successivelj', 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 judgement, 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 originally were ; but it is clear that there " was a change in the possession of them, and that " Mr. Davies got them into his custody. Now was " not that of necessity a destruction of the trust ? For " the trustees could not have compelled Mr. Davies " to deliver up the deeds ; and, without doing so, they " could not have made any effectual sale of the estates. " Therefore, it seems to me that, by consulting on his " rights under the settlement-, and then taking the Digitized by Microsoft® 432 SUPPLEMENTARY LECTUEES. " deeds into Ms 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 com-se, 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 wOl suf&ce. Thus, in Cookson v. Cookson {a), abeady referred to, the question, whether a sum of 10,000L, which for the pm']poses of the decision was treated as being impressed with the character of real estate, had, in fact, been reconverted, was decided in favour of the reconversion upon the strength of certain recitals contained in a deed executed by the tenant for life and remainderman of the money-land. And in Harcourt v. Seymour (&), also before referred to, a reconversion into money was, upon the result of various dealings, held to have been effected by Lord Harcourt, he beiag tenant for life of the money-land there in question, with remainder (subject to intermediate remainders which failed on his death without issue) to himself in fee. In concluding, as I am now compelled, my sketch of the doctrine of conversion, let me earnestly recommend to yom' 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 (a) 12 Clark & Finnelly, 147. (5) 2 Simons CN.S.) 12. Digitized by Microsoft® RECONVERSION. 433 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® ^ '^ Fusion. Before addressing myself to the subject of my lecture I desire to say that I aim at nothing higher than to explain, in a mode suited to the legal know- ledge of the more advanced students present, the general aspects of a question (or rather of a portion of a question) of considerable dif&culty, to which the attention of many able men is now directed, and commonly loiown as that of " Fusion." Let me add that wherever I may stray from the path of " elementary explanation " and hazard any expressions of opinion as to the feasibility or ex- pediencjr, or otherwise, of any particular course of action, the views enunciated by me must be regarded as purety my own, and not as being approved (or, indeed, disapproved) by the Council of the Society, by whose desire I this evening address you. In discussing the question of " Fusion," I pro- pose adopting the following order. I shall con- sider : — First, — The actual condition of things, and the inconveniences attributable to the twofold system of Law and Equity. Digitized by Microsoft® FUSION. 435 Secondlj'. — Any remedies short of Fusion that may suggest themselves for these inconve- niences ; and. Thirdly. — The work requisite to be done to effect Fusion. I. — Now as respects the actual condition of things, it may be stated generally that we have two sets of Courts, distinguished as those of Law and Equity (a). The former, known as the Common Law Courts, are mainly concerned with questions arising simply between A. and B., or, at aU events, simply litigated between them, A. complaining that B. has broken some contract entered into with him, or has done him some wrong, and asking for pecuniary reparation. In short, the thing complained of is either breach of contract or tort, and the remedy sought at the hands of the Comlnon Law Court is, in either case, damages. The other set of Courts, commonly known as Courts of Equity, take cognizance of and adjudicate upon vast classes of rights which for the Common Law Courts are, so to speak, invisible and non- existent, as more particularly those arising out of instruments of trust, or connected with the distribu- tion of estates of testators and intestates, or with mort- gages — all those rights, in short, in the enforcement of which the Equity Com'ts are said to exercise an exclusive jurisdiction. The Equity Courts also, in certain cases in which (a) For the sake of simplicity all reference to tie Court of Admiralty 'was omitted. Digitized by Microsoft® ^ v 2 436 .FUSiOK the Common Law Courts afford practical^ no other redress than that of giving damages, supply to the party grieved a better remedy; as in contracts for sale of land by decreeing specific performance, or in cases of infringement of patent, copyright, or trade mark, nuisance of every description, and waste, hy awarding an injunction to restrain the wrongdoer from committing the tort complained of. And in these cases in which the Equity Comiis thus interfere to afford a better remedy, they are commonly said to exercise a concvu'rent jurisdiction. The Equity Courts used also (and their jurisdiction in this respect is occasionally invoked even now) to act in aid of the Common Law Courts, more parti- cularly by compelling discovery, and this head of jurisdiction is commonly referred to as " auxiliary." If we add that the two sets of Courts have dif- ferent systems of procedure generally; that the course of pleading is different in each ; that while in the Common Law Courts the judges decide the law and a jury the facts, in the Equity Courts the judge decides facts as well as law ; and that in the Common Law Courts the evidence is taken vivd voce in open Court, while in Equity the evidence is for the most part in writing, by affidavit or deposition — we have a rough sketch of " the general condition of things," which sketch, however, would require many qualifica- tions to produce complete accuracy. The disadvantages of this twofold system may be summed up generally under the phrase " more Com'ts than one for one subject matter of litiga- Digitized by Microsoft® Fusiosr* 437 tion," or, if I may borrow a metaphor from a homely proverb, the judicial broth is the product of too many cooks. , For the purpose of illustration I will lay out of account, in the first instance, the remedial legislation of the last twenty years. Of course in cases falling rigorously under any head of exclusive Equity jurisdiction there • could be no double litigation. It would be incorrect, no doubt, to say that double litigation was altogether absent from the heads of Equity which I classed just now amongst those of exclusive jurisdiction. Thus in a suit to administer a testator's estate, it was a common course for the Court of Equity to direct a person claiming to be a creditor, and respecting the validity of whose claim there might be a doubt, to establish his debt by bringing an action at law. But the explanation here is that although administration and distribution of testators' estates is, speaking genevaHj, a head of exclusive jurisdiction, it is, in so far as respects the satisfaction of a creditor's claim, one in which the primary remedy of the creditor is by action at law — in other words, the jurisdiction was, and still is, in this respect, concurrent. Apart, however, from exceptions such as that just aUuded to, it was under some or one of the classes of cases ranged under the heads of concurrent and auxiliary jurisdiction that the evils of double litiga- tion were (as they still are) felt. , Chief among these may be mentioned injunction cases, where a plamtiff came to a Court of Equity pray^ Digitized by Microsoft® 438 FUSION. ing an injunction in aid of his legal title, asking, say in a copyright case, an injunction to restrain infringement, and an account of the profits made hy the infringer, and in which the Court, hefore granting equitable relief, ordered the plaintiff, as of course, to hring an action at law to establish his legal title. As respects that branch of the auxiliary jurisdic- tion commonly termed ancillary, double litigation was not merely an occasional, but a necessary concomitant. The Coiu't of Equity pretended to be no more than the handmaid of the Court of Law, and tmder this head it may suf&ce to refer to the fact that formerly a plaintiff or defendant at law could obtain no discoveiy in aid either of his action or of his defence, except by filing a Bill in Equity and pajong the whole costs of the suit, whether ultimately successful or not at law. In the instances of evils which I have mentioned, I have been referring to things as they were until within the last few years. Under the amending hand of legislation those evils have almost disappeared. The claim of a creditor, as indeed any other legal claim in a Court of Equity, is now adjudicated on by the Court. In injunction cases where an injunction is sought in protection of a legal title, say a case of patent right, copjTight, trade mark, or private nuisance, the Court of Equity itself decides the question of legal right, aiid the jurisdiction, formerly auxiliary onty, has now become in effect concurrent. In cases where discovery is needed in aid of an action, or of a defence to an action, at law, discovery by means Digitized by Microsoft® FUSION. 439 of interrogatories and production of documents is ob- tained at law. These results have been reached mainly by the Act known as Eolt's Act, under which the Equity Courts are bound to decide legal questions arising in matters falling properly -nithin their cognizance, and by con- ferring on the common law powers of enforcing dis- covery, and of compelling production of documents. Stni, although to a great extent the desired object of " one Court for one cause " has been attained, instances of inconvenience remain, and are of sufficient frequent occurrence to call for amendment. Thus, for instance, in certain cases where a plamtiff has filed a Bill to restrain a private nuisance, say ob- struction to his light and air, and the circumstances have been such as to lead the Court of Equity to the conclusion that it ought not to interfere by injunction, it has dismissed the BiU, and while refusing to award damages under Lord Cairns' Act, has yet dismissed the Bill without prejudice to an action, thus leaving the parties to renew the litigation at law (a.) . A case partly of this description (though somewhat special in its circumstances). Gaunt v. Fynney {b), oc- curred recently on appeal to the present Chancellor, who delivered judgment on the 14th inst. There the plaintififs prayed an injunction and damages in respect of three distinct matters : first, nuisance from noise and vibration of a steam engine ; secondly, encroach- ment on the foundation and walls of a stable ; and (a) See Durell ». Pritohard, L. E. 1 Ch. 244. (5) Times Newspaper, Not. 15, 1872. Digitized by Microsoft® 440 FUSION. thirdly, obstruction of an ancient stable window. The case came in the first instance before the Master of the Eolls, who refused to grant an injunction, but directed an enquiry as to damages. Upon apjieal the Lord Chancellor came to the conclusion that no injunction ought to be awarded in respect of the alleged nuisance by noise and vibration ; that as respects the alleged encroachment the question was one of ejectment to be tried at law ; and that as the question of encroachment must be remitted to the decision of a Common Law Court, the question of obstruction of the ancient light would be more conveniently tried there also, and he consequently dismissed the bill with costs, but without prejudice to any action which the plaintiffs might be advised to bring at law. So again in a case of Hoare v. Bremridge (a), which came very recently before the full Court of Appeal, in which an insurance company a few months after the death of an assured filed a bill praying that the policy of assurance might be declared void on the groimd of fraud, and five weeks or so later the executor of the person insured brought an action at law against the company to recover the amount insured by the policy, Vice- Chancellor MaHns in the first instance, and the full court on appeal, refused to restrain the action (though brought after biU filed), considering that the question would be more conveniently tried at common law before a jury. The struggle between the parties in this last case pro- bably, or possibly, arose from the cii'cumstance that the (a) See Weekly Notes of Not. 16, 1S72. Digitized by Microsoft® FUSION. 441 Company ill the first instance may have wished to obtain the benefit of the more effective discovery afforded by the Equity procedure, and afterwards struggled to retain the jurisdiction in Equity, considering that a judge would be less prejudiced than a jury in favour of the policy-holder, and possibly also that some portion of the unpopularity commonly attaching to an insurance company which disputes a doubtful claim might be escaped by a trial in Equitj^, always less noticed by the public than one before a jury at Nisi Prius. On the other hand the executor of the assured may have wished to obtam the benefit of what may be called " jmy prejudice " and dislike for pubhcity on the part of the Company. However this may be, and whether these surmises be correct or not, the result was that both the action and the suit were left to go on, and they are both pro- ceeding at this moment ; and though the action wiU in all probability be tried before the suit can be heard, and the suit thus be rendered nugatory, yet there may be a rule for a new trial or other proceedings at law by means of which the ultimate decision in the action may be delaj'ed until long after the suit is ripe for hearing. Then again, although, as a rule, the purely ancillary jurisdiction of the Courts of Equity is no longer invoked, and plaintifls and defendants at law are content with such discovery as they can obtain under the Common Ijaw Procedure Acts, there can be no doubt that the cautious (not to saj- timid) exercise by the Common Law Courts of the engme of discovery j)laced in their Digitized by Microsoft® 442 FUSION. hands renders it still for the advantage of a Common Law litigant to come as plaintiff to a Court of Equity for discovery, provided only the stakes are sufficiently large to warrant his incurring the burden of the whole costs in Equity. Very recently a bill for discovery in aid of pro- ceedings in ejectment was filed in Chancery {Browne v. Wales), the objectof which was to compel the defendants, who (it was alleged) had obtained possession of certain houses as under-lessees, to produce their under-leases, the plaintiff allegmg that the houses in question formed in fact part of property comprised in a term for nmety- nine years, created in 1763 and now expired, and that upon the under-leases being produced the houses would be identified as forming part of the property. The bill was demurred to, and the demurrer over-ruled by Vice-ChanceUor Wickens (a). The ultimate result of the litigation is, of course, still uncertain, but for my present purpose it is sufiicient to point out that the title to the houses must be decided at law in an action of ejectment, and as the plaintiff in Equity (whether he be right or wrong in his general litigation) must pay the costs of the suit in Equity, it cannot be said that all inconvenience, even under this head of ancillary jurisdiction, has altogether disappeared. When I add that each of the thre§ foregouig illus- trations is derived from the actual course of litigation in the Chancery Courts during the past Michaelmas Term, it will be difficult to resist the conclusion that (a) Weekly Notes for Nov. 23, 1872. Digitized by Microsoft® FUSION. 443 the existing state of things is not satisfactoiy, and that the evils which stUl prevail are far from infrequent in practice. It may perhaps be suggested that these evils are not the necessary product of the twofold system, but a httle consideration will show that so long as Law and Equity are kept apart and administered by different Coui-ts with different systems of procedure, one of two inconveniences is inevitable. If, tolerating no concurrence of jurisdiction, it be attempted to define sharply and distinctly what classes of cases shall belong to the Equity jurisdiction and what to that at Law, there wUl be always danger of a litigant seeking his remedy in the wrong Court, and so being, according to the cant phrase, bandied from court to com-t. If, on the other hand, you allow any concurrence of jm'isdiction and at the same time tolerate any material difference in procedure or mode of trial, some element of advantage, real or supposed, arising out of differ- ence of procedure will (occasionally at all events) pro- duce a struggle on the part of one or other of the litigants to invoke in preference the jurisdiction of one or other of the Courts. The first species of inconvenience thus arising will be of the kind well illustrated by Wright v. Lord Maid- stone (a), in which a biU to obtain relief in respect of a destroyed bill of exchange was met successfully by demurrer, on the ground that although there is jmis- diction in equity to afford relief where a bill of ex- (a) 1 Kay & Johnson, 701. Digitized by Microsoft® 44-4 FUSION. change has been " lost," there is none where a bill of exchange has been " destroyed." And if it be said that no such glaring instance of mistaken resort to the wrong Court could occur if the respective domains of legal and equitable jmisdiction were carefully defined, the answer is, that cases like Gaunt V. Fynney would at least occur in which ques- tions legal and equitable would be found to be so mixed up that the aid of more Courts than one would be needed, or at all events invoked, for the complete decision of matters of difference which ought to be dealt mth as one single dispute. The second species of inconvenience has been abeady illustrated by both Hoare v. Bremridge and Browne v. Wales, Considering the necessary cost to the plaintiff of his proceedings in the latter case, it would be difficult to adduce a more apt instance of the general proposition that if there be difference of procedure, one or other party will occasionally be a gainer by invoking one jurisdiction rather than the other, and will, when the occasion arises, do so. As respects Hoare v. Bremridge, I have, in mj' pre- vious mention of that case, glanced at the motives which may have induced the struggle to support one jurisdiction rather than the other. Nor would it be difficult to suggest other circumstances which might render success in retaining or shifting the jurisdiction of considerable importance to a litigant. The mere difference in the mode of taking evidence may occasionallj^ be the cause of such a struggle. Digitized by Microsoft® ptJsiON. 445 The solicitor on one side may know or feel morally convinced that his principal witness in the cause will make what is commonly called a " bad witness " ; that although he may be honest and veracious, and fully capable of affording the materials for a truthful affidavit, yet, when put in the box at Nisi Prius he wUl damage the case, or, at least, weaken the weight of his evidence, and that because he is timid, or hot tempered, or dull, or at least deficient in ^ quick perception. In such cii'cumstances the solicitor will naturally endeavoiu' to obtain a trial by the Court of Chancery rather than at Conmion Law, since in the former case the witness will make a clear good affidavit, and the opposite side may not choose to run the risk of cross- examination. Summing up shortly : If the respective jurisdic- tions are made wholly exclusive, the difficulty of defini- tion has to be met; if made wholly (as they are now partially) concurrent, and the procedures are different, there will be a struggle between the suitors to invoke one jurisdiction rather than the other. I must not of course be understood as suggesting that all the double litigation which now arises is the product of the double system. Double litigation at law alone is frequent enough. There are a large mass of cases occurring in the Common Law Courts in which a defendant who has a counter-claim against the person suing him has (though such counter-claim may be closely connected with the subject matter of the action brought against Digitized by Microsoft® 446 FUSION. himself) no remedy except by way of independent cross action. One of the great defects of the Common Law system has been the lack of machinery for bringing to a single decision claims and counter-claims which, though perhaps upon a strict technical view distinct, ought in the interest of substantial justice to be adju- dicated on together. The point intended to be insisted on is that there is a large amount of double htigation occasioned by the double system, and that as respects this litigation dif- ference of procedure or remedy, or of what I may call machinery for the administration of justice, will in general be found to be the cause underlying the double litigation at Law and in Equity. That plurality of Courts and concurrence of jurisdic- tion will not, without something more, produce the kind of inconveniences arising from the double system, is sufficiently proved by the fact that we have at Common Law three separate Courts, each possessing an independent concurrent jurisdiction in ordinary civil matters, and yet no substantial inconveniences arise from their separate and concurrent jurisdiction, a fact for which it is difficult to assign a satisfactory reason other than that the principles, procedure, and ma- chinery of the three Courts are the same. Let me illustrate by example the difference between the operation and remediability of double htigation where the principles and procedure of the Courts are similar and where they are different. There are, as I intimated, many cases in tlie Common Law Courts where the counter-claims of a defendant are Digitized by Microsoft® FUSION. 447 not available by way of defence, but where his remedy is by cross action. Thus m former days, where a vendor had sold a specific article for a fixed sum, with warranty, and he sued for the price, it was held that the purchaser could not, by way of defence, give in evidence the unfitness of the article for the purpose for which it was sold. He was obliged to bring a cross action for breach of warranty. But the evil in this case was in no way caused by or connected with the existence of more Common Law Courts than one. It would have been just the same, neither greater nor less, had only one Common Law Court instead of three existed. Subsequently a more liberal view was taken by the Common Law Courts as respects the point just men- tioned, and it was established (you wiU find the whole history of the change discussed in Mondel v. Steel, 8 Meeson & Welsby, 858), that though if the defendant sought to recover consequential damages arising from the article proving unfit he must proceed by cross action, he might, by way of defence, claim to reduce the amount for which he was liable by the difference between the actual value of the guaranteed article, and its true value at the time of delivery. The result of this change was at once, to the extent of the alteration in the law, to render any cross action unnecessary. Let us compare this with an analogous case, where the jurisdiction is partly at Law and partly in Equity. Thus, assume A. and B. to have been in partnership ; that the partnership accounts are still unsettled ; that Digitized by Microsoft® 448 Fusioif. A. holds B.'s bond in respect of matters connected with the partnership, and that disputes arise. Here A., instead of filing a bill to have the partner- ship accounts taken, will almost certainly bring an action on the bond, and B.'s only remedy (there being no machinery for taking partnership accounts at law) is to file a bill to restrain the action, and have the accounts taken in equity. Suppose now that it is desired by a more hberal extension of what I will venture to call somewhat loosely and inaccurately the law of " Set-off or Com- pensation," to make the unsettled accounts available, by way of defence at law. Without altering the double system as now existing this cannot be done. The attempt has been made and has failed. It was at one time supposed that the action on the bond might under the modern legislation be met by an equitable plea, but it soon became apparent that it could not. B.'s defence is in effect, " I claim to have the partner-! ship accounts taken." But the Common Law Courts have, as they now stand, neither jurisdiction nor ma- chinery for taking partnersMp accounts. Therefore the case is not suitable for a defence by equitable plea, and accordingly the evil of double litiga-> tion must, in such a case, continue, save as partially remedied by the Com't of Equity restraining the action and taking the whole matter into its cognizance. The result must be the same in all cases where the special machinery or procedure or remedies of the Digitized by Microsoft® FUSION. 449 Ooiirt of Equity are or may be needed to effect com- plete justice. The specific performance of contracts as enforced by Courts of Equity, constitutes a standiag and permanent instance of double litigation arising from difference of remedy. Thus a purchaser who has paid a deposit and con- siders that he is not bound by the contract, has no remedy save to bring an action at law for his deposit, a step which is commonly at once met by the vendor filing a bill for specific performance, praying an injunc- tion to stay the action, which injunction is granted «,lmost as of course upon the deposit being brought into Court. Double litigation in cases of this sort is the normal state of things. The conclusion under the first head of my subject must therefore be that the existing state of things is attended with grave inconveniences, attributable to the twofold system of Courts and of jurisprudence as at present existmg, and that difference of procedure or remedy in the distinct Courts lies at the root of the evil. II. — Under the second division of my subject I 3)roceed to consider whether any remedy for these in- conveniences short of an actual fusion of the Courts and systems can be suggested. It might be supposed that the evils might be re- moved by giving to each Court complete jm-isdiction in all matters legal and equitable, leaving untouched Digitized by Microsoft® o a 450 FUSION. the distinctive principles, procedure, and practice of each system. This state of things actually now exists as respects the County Courts, the judges of which, within the limits of their jurisdictions, administer equity as well as law, and are competent to entertain an action at law or plaiat ia equity hy A. against B., and a cross action or cross plaint by B. against A. If any such remedy were resorted to, it would be a sine qua non that each and every Court should re- nounce all pretension to restrain a litigant from pro- ceeding in another Court, since otherwise Common Law actions brought in one Court might still be- restrained by Equity suits instituted in another, thus keeping alive the evils of litigation in more Courts than one. The general working of any such general communi- cation of both jm'isdictions to aU'the Courts would presumably be that Equity suits would in general be stUl instituted in the Equity Courts, and Cormnon Law actions in general be still brought in the Cormnon Law Courts ; and where now the real defence to a Com- mon Law action is by Equity suit, the suit would neces- sarily be instituted in the Common Law Court ia which the action is pending. Special provisions would of course be needed to provide for the contingency of an Equity suit in one Court being met by a cross action at law in another. It is noteworthy that in answer to one of the- questions addressed by the Judicature Commissioners to the County C ourt Judges, by which the latter were Digitized by Microsoft® FUSION. 451 in effect asked whether, iii their opinion, any incon- veniences resulted from administei'ing justice in the County Courts upon different systems (a), replies in the negative were received from a very large majority of Judges. Some of the County Court Judges even went so far as to treat the difference of procedure as an advantage. It is, however, difficult to believe that if the Chancery and Common Law Courts were each and aU invested with jurisdiction in aU matters legal and equitable, with two distinct procedures, and almost as of necessity, two distinct sets of officials in each Court, the result could be anything but an inter- regnum, during which no doubt the Judges of the Common Law would learn something of Equity doc- trines and procedure, and the Equity Judges become partially acquainted with those of the Conunon Law — but still an interregnum of confusion tolerable only as leading necessarily to something better than the present state of things. But further, it may perhaps be suggested that an adequate remedy would be provided if, while retaining the present double system, the various heads of liti- gation were distributed between the existing Courts of Law and Equity, according to some well considered scheme; no concurrent jurisdiction, however, being tolerated, and the Equity Coui-ts being deprived of all right to stay by injunction proceedings at Common Law. (o) The question, in fact, extended to the Admiralty as well as to the Common law and eqxiitahle jurisdictionB, But see note ante, p. 435. Digitized by Microsoft® G G 2 452 FUSION. The nearest approach to any satisfactory distri- bution would perhaps he to allot to the Chancery Courts, in addition to their present large admiaistra- tive business, all matters connected with the con- struction of deeds and wills, and all matters of account, and to reserve for the Common Law Courts the purely litigious busiaess in which viva voce evidence is of so much importance. The subject is too large to admit of more than this cursory reference, but a very moderate amount of con- sideration wiU, I think, be sufficient to satisfy any one who has studied the question, that any such remedy as last suggested would draw with it more difficulty than even general codification of the law, and would lead only to an unsatisfactory result. It may be added, in connection with this subject, that if it be considered of importance to retain for particular heads of jm'isdiction the Equity procedm'e, and for others that which now prevails at Common Law, this can be far more conveniently done bj'' means of the internal arrangements (flexible and admitting of ready change,) of a single United Judicature, than by preserving the judicatures distinct and distributing the business by statute. If, then, we can neither give to each and every Court complete jurisdiction in all matters legal and equitable, nor distribute amongst the various Courts the legal work to be done, so as to give to each Court, exclusively of all others, its suitable share of jurisdic- tion, the only remedy seems to be to attempt to blend the Com'ts and systems into one whole, in a word Digitized by Microsoft® FUSION. 453 " Fusion "-—which brings me to the tliird division of my subject, viz., the work requisite to effect fusion. III. — Here for lack of time I am compelled to omit all reference to the various administrative questions which surround a task such as that of consolidating the ancient Courts of England into one Court, and I shall, assuming such a consolidation to be feasible, direct my attention to the problem of effecting a fusion of the jurisprudence, procedm'e, and practice of the two systems, Law and Equity. Now in order to determine how this "Fusion" is to be effected, it seems essential to consider previously the differences between the two systems, becatise if the two are to be blended this must be by adopting ' whoUy or in part what exists in one or the other system, save so far as it may be found desirable to supersede both by something new. The differences may be classed under the following heads : — 1. Difference as respects principles of juris- prudence. 2. Difference as respects pleading. 3. Difference as respects trial in relation to the functions and powers of the judge. 4. Difference as respects mode of taking evidence. 5. Difference as respects locality of trial. Taking these differences in the order just men- tioned, the first difference to be noted between Law and Equity is that actually subsisting in the juris- prudence of each. Equity acknowledges rights whoUy Digitized by Microsoft® 454 FUSION. ignored by the Common Law, and, in many instances, qualifies and varies those which the Common Law recognizes. If the existing aggregate of our jurisprudence, legal and equitable, as distinguished from its administra- tion by means of different Courts, be in the main just and satisfactory (and small complaint is heard on this head) the result is that fusion of the two systems xa respect of jurisprudence must be accomplished by providing in effect that our law shall consist of all law, save as qualified by equity, plus all equity. In other words. Equity must be added to Law, and super- sede it where it differs. The next question is, how this process is to be effected. By the High Court of Justice Bill, carded through the House of Lords by Lord Hatherley in 1870, but withdrawn late in the Session, after reaching the House of Commons, it was proiDosed, while providing for a fusion of the Courts into one High Court of Justice, to effect the fusion of the two systems of jurisprudence by an enactment which had Lord West- buay for its author, and which by amendment took the place of a shorter and less accurate provision of a similar description. It was contained in section 12 of the BiU, as it finally passed the House of Lords, and was as follows : — " Equity, or the rules and principles which govern " the Court of Chancery in the administration of " justice, shall henceforth be blended and united with " the common law of England and (so far as there is Digitized by Microsoft® FUSION. 455 "" any difference) shall control and modify the same " and supply the defects thereof, to the intent that " henceforth there may he no division in the jiu'is- " diction of the several Courts, but that equity and " common law, so united as aforesaid, may be ad- " ministered in aU the aforesaid Courts without " difference or distinction, and in case of any conflict " of jurisdiction the jurisdiction which has hitherto " been exercised by the Court of Chancery, or by " the Court of Admiralty, shall prevail from time " to tune." There can be no doubt, I think, that an enact- ment to the effect of that just read would effectually fuse the principles of Law and Equity, but it is another and distinct question whether it would be the best and most suitable way of bringing about that fusion. In the letter addressed by the Lord Cliief Justice of England to the late Lord Chancellor while the Bill was in progress, a resolution, adopted by sixteen out of seventeen Common Law Judges, was communicated, which resolution was as follows : — " That it appears to the Judges that while it is " highly desirable that the distinction between Law " and Equity now existing in respect of civil rights " shall be done away with, and that in civil suits and " actions one law shall be administered, it is essen- " tially necessary, in order to prevent confusion in the " administration of justice, that uistead of a general ■" enactment such as is now contained in clause 13 of ■*' the High Court of Justice BiU, a careful collation Digitized by Microsoft® 456 FUSION. ' of the Common Law and Equity law having heen ' first made, express provision shall be made as to ' what the law shaU be ra each particular instance ,' ' or, if this course should be deemed impracticable, ' owing to the time it would require, that clauses- ' should be carefully framed, expressly stating the ' principles determined on by Parhament for the ' purpose in view." The general enactment referred to by the judges was not the one which I have just read, but a shorter and less precise provision, for which that penned by Lord Westbury was subsequently substituted, but the views of the judges are here distinctly expressed in favour of codification, or, at aU events, of a partial ascertainment of the principles on which Fusion is to take place. Whether they would have considered the clause which I have read as sufficient may be doubtful, but the Bill of 1870 must, I think, be regarded as having failed, not so much because it made no provision for codification generally, as because it made no pro- vision even for the procedure and practice of the proposed High Court, and committed the future establishment of the necessary provisions under those- heads, not to the judges of the proposed High Court of Justice itself, but to the Queen in Council in the first instance, and afterwards to the Queen with the advice of the Lord Chancellor alone. It is impossible not to feel that a general Code, if not absolutely necessary, vrould at all events be of immense assistance in carrying out the work of fusion, Digitized by Microsoft® FUSION. 457 more especially to the Common Law Judges, who would be called upon after fusion to administer blended Law and Equity upon equitable priuciples (a). Those, however, who desire fusion strongly will pro- bably be disposed to prefer the general course of enacting that fusion shall be, leaving it to the judges of Law and Equity to determine (with or mthout suitable special assistance) how ,- instead of deferring legislation imtil a Code can be produced (6) de- serving acceptance by the Legislature. Assuming, however, a Code to be dispensed with, the observations which I am about to make on the other jDoints of difference between the systems of Law and Equity will, I think, sufficiently show that at least the general principles of the procedui'e and practice to be adopted by the fused Courts should be ascertained, since those differences are so great that if the whole matter be referred (without any rule or guide) to the mingled legal and equitable judicial elements whereof the blended Com-t of Justice will'be composed, there may be danger of vital disagi-eement. (a) It is obvious that, if only for the purpose of assisting a judge in dealing with legal questions hitherto unfamiliar to him, say a Common Law judge with a question of right to tack incumbrances (if such a right were suffered to survive codification), or an Equity judge with a question of constructive total loss, codification would be of immense advantage ; but the cases intended to be referred to are those iu which the Common Law would have to be regarded first as existent, and then as being overlapped and modified by equitable jurisdiction. (i) There seems just at present to be a reaction in legal opinion, and a tendency to underrate the difiiculties of codification. The defects and im- perfections of the French Code, arising partly from vice in the original plan, and partly from hasty and imperfect execution, should not be for- gotten. Digitized by Microsoft® 458 FUSION. I proceed now to the second of the differences re- ferred to — differences as respects pleading. Besides differing in jurisprudence, Common Law and Equity differ in their system of pleading. Equity pleadings contain little more than the state- ments and counter-statements of the plaiatiff and de- fendant, couched in language free from technicality. Common Law pleadings, on the other hand, being merely machinery for the production of issues, aim at conveying in concise technical language the legal effect of, or the resulting or complex fact eqxiivalent to, the detailed facts on which the litigant relies for his attack or defence. Hence the artificial and often the apparently con- tradictory character of the pleadings. A pleader settling pleadings for a defendant collects from his instructions that the facts will probably support a plea of non-assumpsit, and he so pleads, and at the same time considering that the facts may support a plea of legal tender, he pleads also tender. The issues ultimately arrived at, though commonly called issues of fact, are far from being so. The so-called facts alleged on one side and denied on the other are legal results. The real facts are kept out of sight, and remain, so to speak, in the dark, until brought to light on the trial. It has to be ascertained by trial at Nisi Prius, whether, for instance, the facts there proved by the defendant, taken in conjunction with those proved by the plaintiff, do or not establish, say, a plea of tender. Digitized by Microsoft® FUSION. 459 The judge says to the jury, " If you believe such " and such witnesses, the plea of tender is proved, " and you will find on that issue for the defendant. " If not, you find on that issue for the plaiatiff." Nothing can well be more artificial, for after verdict nothing remains on the record to show what facts the jury, who are judges of fact, really considered to be proved. Their verdict is the conjoint result of the law as laid down by the Judge, and of their own views respecting the actual facts proved before them. Upon this conflict of methods the question at once arises : — If Common Law and Equity be fused, which shall be adopted ? To this, I believe, there can be but one answer. As between the artificial system, in- vented merely for the production of issues, and the natural system of allowing each party to state his own case, the latter must prevail. Not that the adoption of the latter system is free irom risk, and more especially the risk of jprolixity. In some able observations on the Eej)orts of the Judicature Commissioners made by a well-known County Court Judge, a kind of pleading Millennium is anticipated. We are told to hope for " a simple in- " telligible statement of the plaintiff's claim, and a " like simple inteUigible statement of the defendant's " answer, each sufficient without prolixity, brief with- " out obscurity, accurate without needless technicaKty, " precise without needless formality." I wish I could feel equally sanguine. So long as thought and language exist, to be brief without obscurity wiU be attained only by a gifted few. The Digitized by Microsoft® 460 FUSION, rest will, as Horace tells us he did, become obscure in labouring to be brief. Still as between the artificial Common Law system and that of Equity, the latter must, I conceive, in the main prevail. But, in addition to differences of jurisprudence and differences of pleading, thei'e remain the differences between Common Law and Equity adverted to under my 3rd and 4th heads in the mode of trial and of taking evidence. They may be thus stated : — At Common Law questions of fact are^determined by a jiuy. In Equity by the judge. At Common Law evidence is taken vivd voce in open Com-t; whereas in Equity the evidence is commonly by af&davit, with an occasional resort to vivd voce evidence. In these differences appear to me to he the most substantial difficulties in the way of fusion — difiiculties arising partly from conflict of opinion amongst men of high legal position, and j)artly from the undoubted fact that the question, what is the most convenient mode of trial and of taldng evidence, cannot be answered simply and absolutely, but only by reference to the nature of the litigation. Upon the value of trial by jury in civil causes very conflicting opinions exist. People are now heard to say boldly that juries might be very necessary in times when judges were corrupt, but that it is ludicrous to sit by at a trial at Nisi Prius and see a judge carefuUy sift and weigh the evidence which has been given, and Digitized by Microsoft® FUSION. 461 then remit the decision to a jury who are not compe- tent to sift and weigh without his assistance. Upon the question of mode of taking evidence there is far less difference of opinion. The preponderance is strongty in favour of viva voce evidence given in presence of the persons or person by whom the questions of fact are to be decided. Eeasoning upon theory only, there would not be a word to be said in favour of any other mode of taldng evidence. The general proposition must however receive con- siderable qualification when considered in connection with actual practice. In a typical Common Law case, say a running-down case, where the sole question is — was the hansom cab or the omnibus in the wrong ? — nothing is of any value save viva voce evidence thoroughly sifted. Of the wit- nesses some may be stupid and honest, some dishonest yet acute ; but there are no other means of reaching the facts, no landmarks to assist. On the other hand, after laj^ing out of consideration the large number of cases dealt with by the Court of Chancery (such as construction of wiUs and deeds, foreclosure, redemption, specific performance, &c., &c.,) in which viva voce evidence is hardly ever needed at all, there remains a residuum of cases in a substantial proportion of which it is needed but little, or at aU events is of comparatively small importance. Take the case, for instance, of a bill to set aside a deed as having been obtained by fraud, perhaps eight or ten years previously. The parol evidence to be Digitized by Microsoft® 462 FUSION. given on the subject by one or other of the parties interested is often of the miautest possible value. After the lapse of time the memory is imperfect, the bias or iaterest strong, and the correct decision of such cases will commonly be found to depend ulti- mately upon the letters and written documents which are forthcomiug. It is not too much to say that in a case of this sort a single clear incontrovertible inference derivable from contemporaneous written documents of undisputed authenticity, must carry more weight with a judge than any amount of the hardest swearing, whether by af&davit or vird voce, with or without cross examination. The parol evidence in such a case is often what is least important. The next observation to be made is, that it would seem desirable, so far as practicable consistently with other ohjects, that the trial of a cause should be single and complete, as to law and fact, at the same time. Much has been said, and justly so, as to the absurdity of deciding questions of disputed fact upon affidavits and written depositions, but the coimter- vailing disadvantages of the Common Law system, which, iQ cases iuvohing complicated questions of law as well as of fact, works by means of a double or piecemeal trial partly at Nisi Prius and partly in Banc, have hardly received sufficient attention. The useless expenditure of force, and occasional danger of miscarriage where the work is, so to speak, done bit by bit and not at a single time, upon a con- Digitized by Microsoft® FUSION. 463 sideration of all relevant cii'cumstances, whether of law or fact, are I think considerable («). On the other hand no one who has had any expe- rience in the hearing of Equity suits can have failed to see how frequently a cause is, beyond reasonable doubt, lightly and satisfactorily, though perhaps not very scientifically, decided upon a single contempo- (o) The recent case of Cory'i). Patton, relating to underwriters' slips, ■will illustrate what is here said. In Hilary term, 1872, the question ■whether an assured is bound to communicate to the underwriter facts material to the risk insured against ■which may, after slip signed by the latter, but before the policy is executed, come to the knowledge of the former, ■was, on demurrer to replication, decided in favour of the plaintiffs (the assured), but so decided only on the assumption that the effect of signing the slip was, in the particular case, as alleged in the replication. (See L. K. 7 Q. B. 304.) On the case coming on for trial at Nisi Prius'(Dec. 12th, 1872), the correctness of the allegation in the replication, and consequently the whole foundation of a judgment on which the acumen of three judges had been expended, was called in question, and fresh questions of law then raised were reserved, ■with power to the Court to enter a verdict one way or the other, or to grant a new trial : subject to which a verdict was entered for the plaintiffs. The present position of the cause is, I believe, as follows. The decision of the Court of Queen's Bench cannot be taken to the Exchequer Chamber (nor would this be desirable) until the issues of fact are finally disposed of. The questions raised at the Nisi Prius trial, including the question whether there shall or not be a new trial, can hardly be argued and determined in Banc before the end of the year 1873, and if a new trial be granted it can hardly be had until 1874. MeanwhUe the question whether the judgment of the Court of Queen's Bench on the demurrer is to stand or not remains in suspense. If the defendant should ultimately succeed on the issues of fact there will have been a needless expenditure of force upon the decision of the demurrer. If the plaintiffs should succeed, the defendant may question the decision of the Court of Queen's Bench on the demurrer by going successively to the Exchequer Chamber and House of Lords, and should he ultimately succeed, the Nisi Prius trials and argument in Banc will have been thrown away. Digitized by Microsoft® 464 FUSION. raneous consideration of all tke law and all the facts so far as ascertained, without the advantage of vivd voce evidence. Nor can it be doubted that the same cause would in all probability be decided no better, though at far greater expense, by means of an elabo- rate previous Nisi Prius trial, followed or preceded [a) by a separate consideration of the points of law arising in the case. Now it is by no means easy to provide a satisfactory procedui'e whereby the advantages of vivd voce evi- dence shall be combined with those of a single trial before a judge of fact as well as law. The following seem to be the principal difficulties : — "Where a cause is tried upon the law and facts all at once, as in a Chancery suit, before a single judge who is ah'eady burdened with the task of selecting for himself the substantial issues between the parties, vivd voce examination in open Court adds so much to his labour that it may fairly be doubted whether to select the issues, to bear in mind the law, and to con- trol the current of vivd voce evidence, be not beyond the average strength of a single judge. Again, if the Judge is to be the judge of fact as well as law, there is great difficulty, where the evidence is given vivd voce, in providing any satisfactory ma- chinery for reviewing his judgment upon matter of fact, since if his notes are to be adopted they will be the reflection of his own views and bias, and if short- hand notes are resorted to, the case is at once crushed beneath the weight of its own evidence. (a) Or poEBibly both preceded and followed : see last previocs note. Digitized by Microsoft® FUSION. 465 The result would seem to be that wherever there is to be a tiial simply upon viva voce evidence, and a fortiori, if that trial is to be before a jury, the old Common Law practice of a separate trial upon separate ascertained issues will be the most convenient course, and that having regard to the advantages of a single trial upon law and fact combined, the procedure of trial upon vivd voce evidence should not be applied without a careful exception of those classes of cases in which there would be more loss than gain in insisting on its apphcation. I am aware that it may be hereupon said : — " Then " after aU you tolerate difference of procedure, and the " struggle which you have spoken of will stiU take " place as to the mode of trial to be adopted in parti- " cular cases." No doubt there would be such struggles. Under any system of procedure, however siagie and uniform, the litigants will strive for advantages, small or great. But the struggle would be of a very different nature from that which now occurs with a view to shifting or retainiug the whole jurisdiction. It would be reduced to the dimensions of a contest whether the Court itself, then one and entire, should adopt one or another of two modes of trial for the pur- pose of reachuig the justice of the case. The struggle (though more important) would be akin to those wliich now take place every day at Judges' Chambers respect- ing a change of venue desired by one side and opposed by the other. There remains . to be considered the fifth circum- H H Digitized by Microsoft® 466 FUSION. stance of difference, that which I have called " Locality of Trial." The Common Law, so far as respects trial of ques- tions of fact, provides for this trial taking place in the immediate neighbourhood, as far as practicable, of the parties and witnesses. The Courts are, so to speak, ambulatory for the purpose of trying facts, though fixed at Westminster for the purpose of deciding matters of law. The superior Equity Courts on the other hand are altogether sessile and immovable. This difference has a considerable bearing upon the two questions last discussed, that of jury trial and of examination of witnesses in open court. To the extent to which trial by jury is to be retained as part of our system for deciding civil rights, provision must be made for trying issues of fact elsewhere than in the metropolis. This is obviously necessary, since neither could the required jurors be taken exclusively from the neighbourhood of the metropolis alone, nor' would it be reasonable to bring to London jurors living at a great distance. The expediency, however, of applying the cu'cuit system, or some equivalent, to cases where the whole matter, fact and law, is tried by a judge without a jury, with a view merely to the more convenient and less expensive examination of witnesses in open court, may admit of some doubt. There would seem at first to be more real waste in such a case in carrying the judge, the bar, and the attorneys to the neighbourhood of the witnesses, than Digitized by Microsoft® FUSION. 467 in compelling the witnesses to come to the metro- polis. There is, of course, this material difiference between taking the judge to the witnesses and bringing the witnesses to the judge, viz., that in the former case the waste of judicial time falls on the nation, and in the latter the additional cost falls on the suitor. This, however, is a question closely connected with one discussed in the Second Report of the Judicature Commissioners, and to ventilate it thoroughly it would be requisite to refer to the recommendations made by that Report, and I have barely time left for summing up. The following general conclusions may, I think, be safely come to : 1. That the evils of the present state of things are not inconsiderable. 2. That the only satisfactory mode of removing them is by " Fusion." 3. That the difficulties in the way of fusion, which it must be admitted require careful handhng, are {omitting questions of administrative organisation which I have not considered) mainly difficulties in respect to future procedure and practice, and more especially mode of trial. It must not, however, be supposed that the questions which I have summarily left out of account are either less difficult or of less importance than those which I have discussed. The blending of the superior Courts into one High Court of Justice and their reorganisation for the purpose of litigation in the first instance, and by way of appeal, must be a task of considerable com- Digitized by Microsoft® 468 FUSION. plexity and difficulty, and it is connected with the quasi-political question of the ultimate appellate juris- diction of the House of Lords, and Her Majesty in Council. Agam, the proposition made by the Second Eeport of the Judicature Commissioners to incorporate the County Courts into the general supreme Court of Justice, and establish in various locahties Courts of First Instance, is perhaps one of still greater complexity and diffi- culty. In discussing, however, the question of " Fusion," my object was to dwell upon those aspects of the sub- ject which are more purely professional, and to assist the law students of this Society to an intelligent con- sideration of the question as respects more particu- larly procedure and practice. In conclusion I may say that it is difficult for any one who notes the signs of the times to resist the con- viction that the present system of double jurisdiction is doomed to die, and that it will be succeeded by Fusion in some form or other ; but whether this be effected by codification, or in some such mode as that attempted in 1870 — whether the scheme for establish- ing throughout the country local centres of primary jurisdiction, administering law and equity combined, be adopted or rejected — that portion of the subject which, within the narrow limits of time allowed me, I have endeavoured this evening to elucidate, must, to a great extent, retain its special importance and special interest even after fusion shall have been effected. Digitized by Microsoft® APPENDIX. MR. BARBER'S STATEMENT ON THE PEACTICE AND PROCEDURE OF THE COURT OF CHANCERY IN ENGLAND (a). The practice and procedure of the Court of Chancery in England may be conveniently considered in the following order : — I. The procedure in an ordinary suit down to the decree. II. Procedure after a decree until a final order. III. Special practice in particular kinds of suits and proceedings. IV. Interlocutory applications. V. Eevivor and supplement. VI. The mode of enforcing decrees and orders. VII. Ke-hearings and appeals. VIII. Summary statutory jurisdiction of the Court. (a) The above statement is, with parts as were peculiar to Ireland, other papers, appended to the First appear to have found that the prac- Eeport (1863) of the " English and tice and procedure of the two ooun- Irish Law and Chancery Commis- tries, originally similar, had, by the sion." effect of modern legislation, become Mr. C. Chapman Barber, of the almost entirely different, and that English Bar, and Mr. Jellett, of the such a statement as they had been Irish Bar, having been requested to requested to furnish would neces- draw up, for the assistance of the sarily involve a general statement Commissioners, a concise statement of the modern practice and proce- of such parts of the procedure of the dure in each country. They there- Superior Courts of Equity as were fore drew up, separately, statements peculiar to England, and of such of the practice and procedure of the b Digitized by Microsoft® ii APPENDIX (MR. barber's STATEMENT). I. — The Procedure in an Ordinary Suit down to THE Decree. Form of Bill. — A suit is commonly commenced by a Bill entitled thus : — In Chancery. Lord Chancellor. Vice Chancellor {name of Vice Chancellor), or Master of the Rolls. Between yi. 5., Plaintiff. CD. & E.F. Defendants. The bill, the draft of which must be settled and signed by counsel, is, unless under exceptional circumstances (a), ad- dressed to the Lord Chancellor. It contains a statement, in paragraphs numbered consecutively (6), of the facts on which the plaintiff relies as constituting his title to relief, and con- cludes by a prayer, asking specifically such relief as the plaintiff conceives himself entitled to, and also asking general relief. The names of the defendants are repeated in a note at the foot of the bill. Information. — When a suit is instituted on behalf of the Crown, or of persons under its peculiar protection, as, for instance, the objects of a public charity, the pleading by which the suit is commenced is called an information. The Attorney-General or Solicitor-General, technically called the Courts of Chancery in England and siou are so trifling ttat it has been in Ireland, omitting, as a general thought better to print the paper rule, such portions of practice and in extenso. The notes and refer- procedure as are still common to ences, which make no pretension to both countries. completeness, have been added by The statement here reprinted, the author of the foregoing Lectures, from the papers laid before Parlia- with a view to the assistaoce of ment, is the separate statement students. prepared by Mr. Barber. The por- (a) As where the Chancellor is a tions haying an exclusive relation to party, the special objects of the Commis- (J) 15 & 16 Vict. c. 86, s. 10. Digitized by Microsoft® PROCEDURE DOWN TO DECREE. Ill informant, is then the complainant. If the suit concerns merely the rights of the Crown, and in some other cases, which it is mmecessary for the present purpose to particu- larize, the Crown officer alone prosecutes the suit. More frequently, however, the suit is instituted at the instance of some private individual, commonly called the relator, who has the conduct of the suit, and who is responsible to the defendants for such costs, if any, as the Court may think fit to award to them. Information and BUI. — In some cases, as, for instance, when a private right connected with a public object is sought to be enforced, the remedy is by an information and bill combined. Parties. — Generally speaking, all persons who are inte- rested in the subject-matter of the litigation should be par- ties to the bill either as plaintiffs or defendants, but the strict rule has been considerably modified by the statute of 1852 (15 peal is dismissed -without nosts, the Chanc. 679, 4 De Sex, Jones & deposit is returned, unless the Smith, 58. Bat the court will Court makes special order to the not depart from the ordinary rule, contrary, Dell v. Barlow, 1 Russell merely on the ground that the & Mylne, 686. Digitized by Microsoft® Ixiv APPENDIX (MR. barber's STATEMENT). copy of the petition of rehearing, upon application for the same. Where the rehearing is by way of appeal, it may be heard, according to circumstances, either by the Lord Chancellor and Lords Justices (as constituting the full Court of Appeal), or by the Lord Chancellor alone, or by the Lord Justices alone. Upon the hearing of the appeal either party is at liberty to read and rely upon any evidence properly taken in the cause for the purpose of the original hearing, whether referred to or relied upon before the Judge below or not ; but though fresh evidence is not generally receivable, it is competent to the Court of Appeal to direct the examination vivd voce of parties or witnesses though not examined in the Court below, and this power is not unfrequently exercised. Should the appeal come before the Lords Justices alone, the decree of the Court below is affirmed, unless they both concur in reversing or varying it, or express a desire that the case should be re-argued before the Lord Chancellor or before the full Court of Appeal. There appears to be no settled rule as to the costs of appeals or rehearings. Like other costs, they are in the discretion of the Court (a). Appeals from interlocutor^/ orders on motions or summons. — Appeals from interlocutory orders made on motion or sum- mons, stand upon a different footing from other appeals. Orders made upon motion or summons are appealed from as follows ; — If the party moving is unsuccessful below, he simply renews his motion before the Judge of Appeal, and if a party against whom the motion is made wishes to appeal, he does so by moving to discharge the order made on motion. In either case entirely new evidence is generally (a) The old rule to the effect that LUlie v. Legh, 3 De Gex & Jones, a respondent, who had the decision 20i (followed in other cases), must of the Court below in his favour, be regarded as now restored, see eould not be ordered to pay the Denny r. Hancock, L. B. 6 Ch. costs of the appeal, after being App. 138 ; Stannard v. Lee, broken in upon by Powell t. Love- Ibidem, 346. grove, 8 De Gex, M. & G. 357, and Digitized by Microsoft® EEHEAEINGS AND APPEALS. Ixv receivable (a), subject only to the observation that if the view taken by the Judge below is departed from only in conse- quence of the newly adduced evidence, that is a material circumstance to be considered by the appellate Judge in dealing with the question of costs. Appeals from orders on exceptions. — Orders made upon exceptions to answer, though interlocutory merely, are appealed from in the same way as already explained with respect to decrees. Appeals from, orders on petition. — Orders made upon peti- tion are appealed from by petition of rehearing, with certifi- cate of two counsel at the foot, but are answered and served in the same way as common petitions, and are set down to be heard with the cause petitions on petition days, instead of being in the list of re-hearings and appeals, and no deposit is required (6). Appeals from orders on motion for decree. — Decrees and decretal orders made upon motion for decree under the prac- tice already explained, have been, by a special order of the Court, placed upon the same footing, with respect to re- hearing and appeal, as other decrees {c). Enrolment. — The right to present a petition of rehearing or appeal may be intercepted by enrolment, after which step a decree or order can be reversed or altered only upon appeal to the House of Lords, or by bill of review. Any party may enrol a decree or order immediately after it has been passed and entered, unless some other party should have entered a caveat. The effect of a caveat is to interpose a delay of 28 days between the leaving of the docket of the decree or order for the Lord Chancellor's signature and the actual signature. Upon the docket being left, notice of that fact is given by the Eecord and Writ Office to the person (a) Pole v. Jod, 2 De Gex & J. & Ph. 84. 285. (c) Consol. order xxxi, rule 8. (J) See Richards T. Platel, Cr. / Digitized by Microsoft® Ixvi APPENDIX (MK. barber's STATEMENT). entering the caveat, and unless previously to the expiration of the 28 days, a petition of appeal has been actually set down for hearing, the docket is signed as if no caveat had been entered, and the enrolment is then in contemplation of law complete (a). After the expiration of six calendar months from the date of a decree or order, it can only be enrolled upon special application to the Judge to whose Court the cause is attached on notice to all parties (6). After the expiration of five years no enrolment is to be allowed, subject only to the qualification that the Lord Chancellor or the Lords Justices may, wliere under the peculiar circum- stances of the case it shall seem just and expedient, enlarge that period (c). VIII. — Summary Statutory Jueisdictiost of the Court. Jurisdiction. — By various Statutes, the most important of which will be found mentioned in the list at the foot of this statement, a special summary jurisdiction is conferred upon the Court of Chancery in reference to a great variety of matters, the general nature of which is indicated in the list. Procedure generally/ hy petition. — As a general rule the procedure in these cases is by petition, entitled in the matter of the particular Act, and in the matter of the particular trust or other subject of the petition, marked with the name of the Lord Chancellor and of one of the Vice-ChanceUors, or with the name of the Master of the Eolls, according to the selection of Court made by the petitioner's solicitor, and presented by some person authorised by the particular Statute to make the application. (a) Consol. order xxiii, rule 27. (6) Ibidem, rule 2 . (c) Ibidem, rule 2S. Digitized by Microsoft® SUMMARY STATUTORY JURISDICTION. Ixvii The petition is addressed and presented in the same way as already described with respect to petitions in a cause (subject to the observation that in any exceptional case where the Master of the Eolls has no jurisdiction, the peti- tion cannot, of course, be addressed to him), and the practice as to hearing and appeal differs little as a general rule from that which obtains with respect to cause petitions, though in all cases the limits of the jurisdiction must be sought in the particular Statute. Peculiarities of procedure. — Some few of the Statutes, however, mentioned in the schedule, give rise to peculiarities of procedure deserving of special mention. 1. Trustee Relief Act. — The Trustee Relief Act has for its general object the exoneration of trustees from liability, by allowing them to pay or transfer into Court, or deposit in Court, any monies, or stocks, or securities held by them upon any trust the performance of which may have become unsafe without the direction of the Court. Under this Act the first step consists of an affidavit made by the trustee entitled in the Act and in the matter of the trust, describing the trust fund to be brought into Court, the instrument of trust affect- ing it, and the names of the persons interested to the best of his belief The subsequent proceedings relating to the trust fund are by petition, and differ little (if at all) from the general pro- cedure applicable to the class of Statutes under considera- tion (a). 2. Settled Estates Act. — The procedure under the Acts relating to leases and sales of settled estates (19 . 1. Doctrine only applies where the parental relation, or its equivalent, exists ... . . 342 Illegitimate cliild considered a stranger . . 343 2. Doctrine applies to strangers towards whom the donor has placed himself in loco parentis . , 344 What is placing oneself in loco parentis I . .345 Semble. The intended assumption of the parental office of making a provision for a child , . 348 3. Not necessary to the application of the doctrine that the sums given should be equal . . 349 Nor that the limitations for the benefit of issue of child should be similar ib. Eesult the same whether the order of events is first wiU, and secondly settlement, or the reverse . 350 Digitized by Microsoft® XCll INDEX. Satisfaction — continued. page Difficulties in applying the doctrine where settle- ment comes first 351 i. Whether a smaller sum given by the second instru- ment is a complete or a pro tanto satisfaction 353 — 357 The latter established by Pym v. Lockyer . . 354 5. Extrinsic evidence, admission of . . . . 367 Admissible to rebut presumption of satisfaction . 358 Counter evidence then admissible to support the presumption ....... ib, Not admissible in the first instance to raise a case of satisfaction ii. Application of the doctrine may occasionally rest entirely upon extrinsic or parol evidence . . 359 Satisfaction operates by way of " ademption" . 360 (II.) Satisfaction of dc5