Vya\\\^ SsNr'xi'*'^^ V \ \ O Sisv v\\\ -*? !,\,V i (flnrupU Ham Btl^aal Sjibrary KF 399.S88'l92o"''*™">"-"'"'y l^aKifprudence *i?iII?,!Il?.!?«?r'e8on R. S. STEVEMS DATE DUE ^^i-"^ ^ "YJ^ i?r«T*" UK ^z i;;. i _L GAYLORD PRINTED IN U.S.A, ^ I-Tiwj.;;;;,;; V :, ■' ■■mmF' Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017859871 COMMENTARIES ON EQUITY JURISPRUDENCE Hon. Mr. JUSTICE STORY, LL.D. Sometime one of the Justices of the Supreme Oourt of the United States. THIRD ENGLISH EDITION, BY A. E. RANDALL of Lincoln's Inn, Barrister - at - Law. LONDON : SWEET AND MAXWELL, LIMITED, 3 CHANCERY LANE, W.C. 2. SYDNEY, N.S.W. : LAW BOOK CO. OF AUSTEALASIA, Limited, TOEONTO, CANADA: THE CAESWBLL COMPANY, Limited, 145-149 Adelaide Street West 51-53 Elizabeth Stbebt. 1920. 51J.il PRINTED BY THE EASTERN PRESS, LIMITED, LONDON AND READING. PEEFACE TO THE THIKD ENGLISH EDITION. My main difficulty in preparing this edition was how to deal with the author's text. It is a recognised classic, and many passages have been adopted judicially. At the same time there are many statements which have been allowed to stand in previous editions, and which could not be supported at the present day. To allow the original text to remain unmodified would clearly mislead the student without assisting the practitioner. Let me give one or two examples. Founding himself upon a dictum of Lord Hardwicke, the author asserted that " common sailors " in the mercantile and naval service required guardianship during the whole course of their lives, and received special consideration in courts of equity in relation to their bargains. But people in humble positions have shown the astuteness of the plaintiff in Armory v. Delamirie (1722) 1 Stra. 504. Again Jenkins v. Kemis as reported in 1 Ch. Cas. 103 could never have survived the distructive criticism of Lord St. Leonard's assuming that it was law in the author's day. See Mamell v. Blake (1816) 4 Dow. 248 ; 16 R.R. 36. So too, the accountability of one co-owner to another (be they joint tenants or tenants in common) does not rest on a fiduciary relationship, and the doctrine that joint debts are joint and several in equity was finally exploded about forty years ago. I have frequently had occasion to comment on the practice which has persisted of supplementing the text by footnotes. Some editors have even deemed footnotes to be the proper medium for correcting inaccuracies in the text. To paraphrase a passage from a judgment in the text and set out the passage at large in a footnote, is a method of treatment which calls for special justification, but to cite identical passages from a judgment both in the text and in a footnote, as happened IV PREFACE. in the preceding edition, is inexcusable. I have been able to reduce the bulk of this edition over that immediately preceding by omitting what was redundant or unnecessary. I have at the same time incorporated much that formerly appeared in footnotes. In a few instances I have allowed long footnotes to stand, but not without misgivings as to the wisdom of that course of treatment. The text passed out of my hands before the full report of Bourne v. Keane appeared. The learned reader is requested to note that it is now reported [1919] A.C. 815. A. E. EANDALL. Lincoln's Inn, December, 1919. TABLE OF CONTENTS. PREFACE TABLE OP CONTENTS TABLE OP CASES . PAGE iii V vii Chaptek I. — Nature and Chakactek. of Equity JUBISPRUDENOE 1 n. — Origin and History of Equity Juris- prudence 21 IIL — (Jeneral View of Equity Jurisdiction . 32 rV. — CONCDERBNT JURISDICTION — ACCIDENT . 39 V. — Mistake 51 VI. — Actual or Positive Fraud ... 79 VII. — Constructive Fraud 99 VIII. — Account 177 IX. — Administration 226 X. — Legacies 253 XI. — Confusion of Boundaries .... 258 XII.— Dower 264 XIII. — Marshalling of Securities . . . 267 XIV.— Partition 273 XV.— Partnership 282 XVI. — Peculiar Remedies in Equity — Cancella- tion and Delivery of Instruments . 293 XVII.— Specific Performance of Agreements and other duties 304 XVIII.— Compensation and Damages . . . 339 XIX. — Interpleader 342 XX.— Bills Quia Timet 349 XXI. — Bills of the Peace 359 XXII. — Injunctions 363 XXIII. — Exclusive Jurisdiction- Trusts . . 393 XXIV. — Marriage Settlements .... 403 XXV. — Terms of years 410 CONTENTS. Chapter XXVI.— Mortgages PAGE 412 , XXVII.— Assignments 430 , XXVIII. — Wills and Testaments 442 , XXIX.— Election and Satisfaction 450 , XXX.— Application of Purchase Money 470 , XXXI.— Charities 475 , XXXII.— Implied Trusts 504 , XXXIII. — Penalties and Forfeitures 544 XXXIV.— Infants 557 , XXXV. — Idiots and Lunatics .... 572 , XXXVI.— Married Women .... 575 XXXVII.— Set-off 601 , XXXVIII.— Establishing Wills 611 XXXIX.— Awards 614 , XL. — Writ of Ne Exeat Regis and Supplicavit 620 INDE , XLI.— Discovery and the Practice employed to Preserve and Pekpetuate Testimony X 626 643 TABLE OF CASES (a) PAOE Aas ». Benham 285 Abbott Fund, In re ; Smith v. Abbott 505, 507 Abergavenny (Earl) v. Powell ... 640 Abernethy v. Hutchinson 285, 386 Abraham v. Budd 374 Ackroyd v. Smithson 337 Acton 0. Pearce 61 V. Woodgate 397, 430 Adair v. Shaw 260, 251 Adam's Trust, In re 541 Adam v. Newbigging ... 79, 82, 84, 295 Adams and Kensington Vestry, In re 447 Adams v. Claxton 171 V. Clifton 535 Adderley v. Dixon ... 305, 307, 314, 340 Addington v. Cann 494 Adey v. Whitstable Co 215 Adye v. Feuilleleau 534, 535 Agar Ellis, In re ; Agar Ellis s. Lascelles 564 V. Fairfax 273, 276, 279 ■ V. AUacklew 616 Agnew V. Pope 463 Agra Bank v. Barry 160, 161 Aislabie u. Eice 120 Albert (Prince) v. Strange 389 Aldborough (Earl) v. Trye 142, 144, 145, 294 Aldrich v. Cooper 199, 209, 212, 236, 239, 240, 241, 242, 244, 267, 268 Aldridge v. Westbrook 232 Allan V. Allan 637 V. Backhouse 201, 444 V. Bower 322, 323 AUcard v. Skinner 127, 136 Allen V. Anthony 161, 163 V. Coster 568 V. Harding 308 V. Jackson 117 V. McPherson ... 79, 98, 176, 611 AUeyn v. AUeyn 459 Allfrey c. AUfrey 223 Allison V. Clayhills 130, 132 AUsop, In re; Whitaker v. Bam- ford 533, 534 PAGE Amber Size & Chemical Co. v. Eanzel 389 Amesbury v. Brown 201 Ancaster (Duke) v. Mayer 246 Anderson v. Anderson 287 V. Elaworth 301 Andrews v. Bamsay 192 1). Trinity Hall 455 Angel ij. Smith 352, 353 Angell V. Angell 636, 638 Angier v. Angler 594 Anglo-Italian Bank v. Davies 351, 353 Anon (3 Atk. 644) 617, 633 (1 Bro. C.C. 158) 67 (1 Ch. Gas. 207) 479 (1 Ch. Cas. 267) ... 480, 488, 492 (2 Ch. Cas. 337) 220 (1 Freem. 303) 220 (2 Freem. 27, 128, 145, 206) 220, 317, 356 (2 K. & J. 441) 287 - (6 Madd. 10—15) 390, 425 (F. Moo.) 20 (4 Euss. 473) 571 (2 Sim. N.S. 54) 564 (3 Swanst.) 279 (1 Vern. 162) 527 (1 Ves. Jun. 93) 391 (6 Ves. 470) 322 (12 Ves. 4) 354 (5 Vin. Abr. 523) 322 Aroedeckne, In re ; Atkins v. Arcedeckne 208 Archer's Case 181, 406, 407 Archer v. Hudson 129 V. Preston 313 Arglasse v. Muschamp 313, 643 Armitage v. Wadsworth 40, 297 Arnott, In re 632 Arnsby v. Woodward 554 Arrowsmith, Ex p 422 Arthington v. Fawkes 360 Arthur v. Bodenham 432 V. Lamb 374 Arundell v. Phipps 302 Ashburton (Lord) v. Nocton ... 161, 167 V. Pape 385, 386 (o) The references are not to the paragraphs as in the preceding edition, but to" the pages. VIU TABLE OF CASES. PAGE Aaherman v. Tredegar Dry Dock Co 138,209,309 Ashley v. Baillie 229 Ashworth v. Lord 419 Aspland v. Watt 530, 536 Asten V. Asten 630 Astley B. Weldon 549 Aston V. Aston 374 V. Pye 299 Athill, In re; Athill v. Athill 199, 240, 267, 268 Atkins V. Hatton 261, 262 V. Hill 253, 254 Atkinson & Horsell's Cent., In re 330 Atkinson v. Leonard 41, 622 1). Littlewood 460, 462 Attenborough v. St. Katherine Dock Co 346 V. Solomon 280, 250, 254 Athol (Earl) v. Derby (Earl) 813 Att.-Gen. v. Bains 494 V. Bowyer 478, 483, 491, 493, 495 V. Brentwood School 484 V. Brereton ... 478, 480, 481, 489 V. Brunning 235, 236 V. Cains Coll 541 • V. Cambridge Consumers Gas Co 377 B. Cambridge (Margaret & Begins Prof.) 494 B. Chester (Bp.) 492 B. Christ's Hospital 502 0. Clarendon (Earl) 488 V. Clifton 501 B. Combe 494 V. Dimond 251 V. Dixie 484 B. Dublin (Corp.) ... 177, 178, 484 «. Emmerson 376 B. Exeter (Mayor) 501 B. Forbes 376, 377 B. PuUerton 262 B. G-askill 626, 627 B. Gleg 494 B. Harrow School (Governors) 489 V. Heelis 501 B. Hewer 488 B. Hickman 489 B. Hubback 288 B. Ironmonger's Co. ... 492, 499 V. Jeames 489 V. Lepine 498 V. London (City) 492 V. Lonsdale (Earl) 454 B. Lucas 571 B. Marlborough (Duke) 374 B. Middleton 480, 489 B. Mucklow 621 v. Newman 480 B. Oglander 492 V. Parker 489 PAGE Att.-Gen. B. Parmeter 376 B. Partington 600 - — B. Peacock 492 V. Pearson 489, 501 B. Piatt 492, 494 B. Price 489 B. Bay 68 i;. Eichards 876 B. Eye 482, 493 B. Sheffield Gas Consumers Co 377, 878 ». Skinners Co 488 V. Silwell 318 0. Smart 489 V. St. John's Hospital 501 B. Stamford (Earl) 600 B. Stevens 260, 262 B. Stewart 492 u. Sturge 498 B. Syderfin 491, 492, 498 B. Taucred 479, 481 V. Terry 378 B. Wax Chandlers Co 495 B. Whitley 489 V. Windsor (Dean & Chapter) 495, 497 (Canada) v. Standard Trust Co. of N. Y 132, 529 Attwood B. Small 82, 83 Atwood B. Maude 46, 195 Auriol B. Smith 617 Austen b. Taylor 398 Austin, In re; Chetwynd b. Morgan 38 B. Chambers 130 Austria (Emperor) b. Day 388 Averall b. Wade 171, 198, 268, 270, 513 Awde B. Dixon 69 Ayerst b. Jenkins :... 128, 124, 296 Aylesford (Earl) b. Morris 142, 144, 296 Aylwin b. Withy 208 Aynsley b. Wordsworth 198 Baber's Teubt, In re 430, 435 Baber b. Harris 577 Baohford b. Preston 122 Bacon b. Clark 532 Baggett B. Meux 599 Bagot, In re; Baton b. Ormerod 454 Bailey b. Barnes 165, 169 B. Ford 287 B. Hobson 374 Bain v. Sadler 235, 288 Bainbridge v. Smith 76 Bainbrigge b. Blair 351 B. Brown X29 Baker b. Salmon, In re 330 . S^ P 573 , In re; NichoUs b. Baker 231, 233 Baker's Trusts, In re 573 Baker b. Adams 609 B. Bradley 129 TABLE OF CASES. PAGE Baker v. Monk 98, 141 V. Mosley 448 V. Paine 70 V. Rogers ■ 361 Balfour v. Welland 470, 473 Ball V. Harris 473 V. Montgomery 594 V. Stone 71, 294 Ballard v. Tomlinson 378 Banks v. Jarvia 609 Barber, In re; Burgess v. Virmi- come 136 Barclay, In re; Barclay v. Andrew 536 Barfield v. Nicholson 391 Baring v. Day 214 V. Dix 287 V. Nash 276, 277, 279, 280 V. Stanton 133 Barker v. Dacie 218 V. Keete 506 V. May 230, 235 V. Perowne 197 V. Eichardson 440 Barkshire v. Grubb 70 Barnard's (Lord) Case 374 Barnes v. Eacster ... 200, 240, 241, 268 Barnett v. Weston 158, 178 Barnesdale v. Lowe 639 Barnett, In re; Daves v. Ixer ... 47, 77 Barrett v. Beckford 468 Barrow's Case 168, 530 Barrow v. Barrow 70 V . Greenough 107 V. Isaacs & Son 554 Barrow in Furness & Rawlinson's Cont., In re 443 Barry v. Stevens 191 Bartlett v. Hodgson 540 V. Pentland 74 Barwick v. English Joint Stock Bank 84 Baskerville v. Browne 607 Basingstoke (Corp.) v. Lord Bolton 263 Bate V. England (Bank) 136 V. Hooper 51, 52 Bateraan v. Bateman 444 Bates V. Graves 612 Bath (Earl) v. Sherwin 40, 361 V. Standard Land Co 136 Bathurst «. Murray 570, 671 Batten c. Earnley 357 Battersby v. Parrington 149, 152 Batthyany v. Walford 216 Baudains v. Eichardson 130 Baxendale v. Scale 71 Bax, Ex p 181 Baxter v. Connoly 307 Bayley, Ex p 195 Baynum v. Baynum 624, 625 Beale v. Kyte 68, 69 Beard v. Beard 578 PAGE Beauchamp (Earl) v. Wynn 57 Beaufort (Duke) v. Berty 558 Beaumont v. Olivera 224 V. Eeeve 123 Beavan v. Oxford (Earl) 171 Bechervaise ». Lewis 605 Beckett v. Cordley 157 Beckley v. Newland 333, 422 Beddall v. Maitland 610 Beddow v. Beddow 617 Bedford (Duke) v. Abercorn (Duke) 70 V. British Museum (Trustees) 311, 315 Bedford. D. Backhouse 166 Bedouin, The 93 Beech ». Ford 301 Beechcroft v. Broome 447 Beeny, In re; Ffrench v. Sproston 361 Beeston o. Booth 237 Beidley v. Carter 57 Belchier, Ex p 533 Belfast (Earl) v. Chichester 637 Belfield v. Bourne 46, 195 Bell V. Alexander 44 V. Gardiner 86 V. Holtby 57 V. Marsh 130, 132, 156 Bellairs v. Tucker 85 Bellamy v. Debenham 331 V. Jones 638 V. Sabine ... 58, 69, 129, 166, 370 Bellasig v. Uthwatt 459 Bellhaven's (Lord) Case 59 Bellwood V. 'Wetherell 634 Benbow v. Townsend ... 397, 606, 508 Bending u. Bending 455 Benfield v. Solomons 126 Bengough v. Walker 460 Benham v. Keane 161, 167 Bennet v. Whitehead 216 Bennett, Ex p 136 V. Hayter 492 V. Wyndham 444 Benningfield v. Baxter 136 Benson v. Heathorn 128, 132, 192 Benyon c. Pitch 144 Bernard ». MinshuU 447 Berney v. Sewell 364 Berridge v. Berridge 138, 208 Berrisford v. Done 48 Bertie i>. Abingdon (Earl) 354 Berwick & Co. v. Price 167 Besant, In re 564, 566 V. Wood 31, 368, 665, 596 Bethune v. Kennedy 196 Beverley's Case 96, 557, 569, 561 Beverley (Corp.) v. Att.-Gen. ... 497 Beynon v. Cook 37 Bidder v. Bridges 638, 639 Biederman d. Seymour 243 Biggs V. Peacock 280 TABLE OF CASES. PAGE Bigland v. Huddlestone 452 Bilbie v. Lumley 61 Bill V. Curetou 151 ■». Kynaaton 255 V. Price 145 Billage v. Southbee 132 Bingham v. Bingham 56, 57 Birch V. Ellames 160 Birchall, In re; Birchall v. Ashton 399 Birmingham v. Kirwan 452 Birmingham & Dist. Land Co. and Allday, In re 311 Birtwhistle v. Vardill 252 BiBcoe V. Perkins 407, 408 Bishop V. Church 72 Bissell V. Axtell 231 Blackburne «. Gregeon 515, 519 Blackford v. Christian 97 Blackmoor v. Mercer 249 Black Point Synd. ». Eastern Concessions Co 263 Blackwell v. Wood 107 Blackwood v. London Chartered Bank of Australia 159 V. Eeg 252 , Ex p 601 Blagden v. Bradbear 318 Blake v. Blake ; 230 V. Luxton 406 V. Peters 373 Bland, Ex p 513, 523 Blandy v. Widmore 460, 461 Blenner Lassett v. Day 616 Blewitt, In re 573 Bloomer v. Spittle 326 Blore V. Sutton 339 Blockley, In re ; Blockley v. Blockley 467 Blow, In re; St. Bartholomew's Hosp. V. Campden 533 Blundell, In re ; Blundell v. Blundell 460, 462 Blyth v. Whiffin 183, 184 Boardman v. Mosman 539 Boddington, In re; Boddington v. Clariat 78 Bodenham v. Purchas 185, 188 Bogue V. Houlston 383 Bold V. Hutchinson 70 Bolton (Duke) u. Williams 345 Bolton V. Cooke 205, 207 Bonar v. Hutchinson 137, 138 Bond V. Hopkins 14 11. Walford 71, 295, 299 Bone V. Cook 635 Bonhote v. Henderson 68, 70 Bonnard v. Perry man 389 Bonser v. Cox 240 Boone's Case 228 Booker v. Allen 463 Booth V. Eich 424 PAGE Bootle V. Blundell 245, 246, 444, 625, 612 Bor V. Bor 456 Borell V. Dann 101 Bosanquet v. Dashwood ... 126, 127, 179 V. Wray 186, 188, 290 Boston Deep Sea Kshing Co. ■». Ansell 133 Bothamley c. Sherson 243 Bourgeoise, In re 569, 662, 571 Bourke o. Davis 45 Bourne v. Bourne 337 V. Keane 489, 498 Bouverie v. Prentice 262 Bovey v. Smith 168, 530 Bowen ». Phillips 364 Bower, In re; Lloyd Phillips v. Davis 501 Bowes v. Bowes 112 V. Heaps 97, 101, 139, 141 Bowker v. Bull 138 Bowlby, In re; Bowlby v. Bowlby 569 Bowman v. Secular Soc., Ltd 382, 489 Bowser o. Colby 554 Bowsher u. Watkins 365 Bowyer v. Bright 332 Box V. Barrett 454 Boxall 1). Boxall 694 Boyd V. Allen 280 - t>. Boyd 467 ». Hind 164 Boyse v. Rossborough ... 128, 130, 613 Bozon V. Williams 421 Brace v. Marlborough (Duchess) 170, 171, 172, 428, 612 Bracebridge u. Buckley 553 Brackenbury v. Brackenbury 123, 296 Bradbury v. Hotten 383 Bradford (Earl) v. Eomney (Earl) 69 Bradshaw, In re; Bradshaw v. Bradshaw 106, 443 B. Bradshaw ^ 568 Braithwaite, In re ; Braithwaite t). Wallis 230 V. Britain 471 V. Coleman 609 Bramwell ». Halcomb 382, 384 Brandt's Sons & Co. v. Dunlop Rubber Co 436, 436 Brecon (Mayor) v. Seymour 171 Breedon v. Breedon 478 Brenchley v. Higgins 141, 142 Brentwood Brick & Coal Co., In re 519 Breton's Estate, In re ; Breton v. Woolven 61 Brewer, Ex p 567 Brice u. Bannister 432 V. Brice 467 ». Stokes 537 Bridge c. Brown 569 Bridges ». Longman 444 TABLE OF CASES. XI Bridgett, In re; Cooper v. Adams 289 Bridgman o. Green 107 Bridgewater (Duke) v. Edwards 263 Bridgman's Trust, In re 541 Briggg v. Massey 191 V. Penny 448 Bright V. Boyd 523 Bristow V. Warde 451, 453 Bristowe v. Needham 353 Britain v. Kossiter 319 British S. Africa v. De Beers Con- Bolidated Mines 369 Broadhurst v. Balgay 539 Brbderick, Ex p 421 V. Broderick 93 Brogden, In re; Billing v. Brogden 191, 535 Bromley v. Holland 41, 42, 293, 294, 295, 296, 297 V. Smith 141 Brook V. Hook 127 Brooke v. Enderby 185, 188 Brookes, In re ; Brookes v. Taylor 534 Brooking v. Maudslay Son & Eield 297, 636 Brookman v. Rothschild 529 Brooks 0. Reynolds 233, 234 Brooksband, In re; Beauclerk v. James 456 Brophy v. Bellamy 568 Brown, In re; Dixon v. Brown ... 62 ^ c. Brown. ". 297 V. Collins 567 V. Heathcote 520 V. HiggB 48, 74, 106, 443 V. Kennedy 129 V. Pring 59 V. Selwin 511 V. Tapscott , 213 V. Vermuden 360 V. Wales 298 V. Yeale 485 Brown's Will, In re 119 Browne v. Lee 204 V. Rye 233 V. Savage 437 Brownell v. Brownell 222, 224 Brownlie v. Campbell 83 Bruner v. Moore 329 Brunker, Ex p 621, 622 Bryant & Barningham, In re 330 Bryson v. Whitehead 121, 307 Buckle V. Atleo 231 Buccleuch (Duke) v. Met. Bd. of Works 615, 616 Buchanan v. Buchanan 593 Buck V. Robson 432 Buckeridge v. Whalley 222 .Buckle V. Mitchell 147, 294 Buckmaster v. Harrop 319 Buden v. Dore 630 PAGE Bull V. Faulkner 215 BuUer v. Plunket 437 Bullock V. Downes 56 Bunbury t>. Bunbury 631 Bunn V. Markham 256, 257 Burchell v. Wild 388 Burden v. Barkus 286 Burford (Corp.) v. Lenthall 177, 182, 360 Burges v. Mawbey 202 Burgess c. Burgess 387 V. Wheate 10, 34, 505 Burke v. Smyth 307, 309 Burley, In re; Alexander v. Burley 447 Burn V. Carvalho 432, 435, 436 Burnet v. Burnet 568 Burns' Application 86 Burrough v. Philcox 74 Burroughs, In re 573 V. Elton 173 Burrows r>. Walls 535, 539 Burstall v. Beyfus 626, 630, 633 Burton v. Pierpoint 242 Bush V. Western , 362 Bustros V. White 31 Butcher v. Butcher 106 Bute (Marq.) v. Glamorganshire Canal Co 258, 260, 262, 263 Butler and Baker's Case 226 Butler V. Butler 576, 598 V. Freeman 559 J). Wigge 546 Buttanshaw v. Martin 401 Button V. Thompson 194 Buxton V. Lister 301, 306, 326 Byrchall ». Bradford 536 Bym V. Godfrey 511 Caddick v. Skidmore 319 Cadman v. Horner 86 Cadogan v. Kennett 147, 150, 391 Cain V. Moon 256 Caird v. Syme 385, 386 Calmady v. Calmady 276 Calverley v. Williams .; 63, 64 Camden (Marq.) v. Murray 570 Cameron and Wells, In re 405 Campbell v. French 78, 589 V. Holyland 256 V. Hooper 95 t). Home 106 V. Mackay '563 V. Macomb 271 V. MuUett 289, 527 V. Rothwell 209 V. Sanders 405 V. Scott 382 V. Twemlow 616 V. Walker 135 Cane v. Allen (Lord) 130 TABLE OF OASES. PAGE Cann v. Cann 52, 55, 68, 59 Cannam v. Parmer 101 Cannel v. Buckle 61, 576, 577 Canterbury (Archb.) v. House ... 229 ^ V. Wills 228, 229 Cantiere Meccanico Brindisino v. Jansen 93 Capon's Trusts, In re 106 Capper v. Spottiswoode 518, 519 Carey v. Faden 384 Carnan c. Bowles 384 Carlisle (Corp.) v. Wilson 177, 182, 360 Carr's Trusts, In re 590 Carr v. Bastabrooke 468, 592, 595 Carriage Co-op. Supply Assn., In re 606 Carritt u. Real and Personal Ad- vance Co 37, 159 Carrou Iron Co. ■». Maclaren ... 369 Carrow o. Ferrior 354 Carter v. Carter 76 V. Palmer 130, 133 V. Wake 427, 428 V. White 138 Carteret v. Petty 263, 369, 542 Cartwright, In re; Avis v. New- man 373 V. Cartwright 120 V. Green 631 D. Pultney 277, 280 Carver v. Bowles 451 Carwe's Estate, In re 121 Cary v. Abbott 491 Casamajor v. Strode 330 Casborne v. Searfe 418 Castell, Ex p 291 Caetelli v. Cook 391 Catling 0. King 318 Cathcart, In re 672 Catchside v. Ovington 228, 229 Caton V. Caton 318, 325 o. Eidout 586 Cator V. Bolingbroke 519 «. Cooly 166 Cave V. Mills 224 Cavendish v. Greaves 224 Cavendish Bentinck v. Fenn ... 82, 137 Cawdor (Lord) v. Lewis 606 Central Bly. of Venezuela v. Kisch 86 Chace v. Westmore 616 Chadwick v. Turner 162, 165 Chalmer v. Bradley :.. 223 Chamberlaine v. Chamberlains 300, 332 Chamberlain v. Durnmer 372 Chambers v. Goldwin 221, 222 Champion, In re ; Dudley v. Cham- pion 528 V. Eigby 127 Chancey's Case 468 Chandelor v. Lopus 86, 91 Chaplin v. Chaplin 245, 469 PAGE Chapman v. Chapman 421 V. Esgar 238 B. Koops 290 V. Perkins 107, 117, 119 V. Tanner 515 Charter v. Watson 427 Chase v. Westmore 214 Chatham v. Hoare 105 Chatterton o. Cave 382, 384 Chattock V. MuUer 332 Chavany v. Van Sommer 286 Chawner's Will, In re 444 Cheale v. Kenward 308 Chedworth (Lord) u. Edwards 370, 390 Cheesman v. Price 285 Cherry v. Mott 497 Cheslyn v. Dalby 614 Chesterfield's (Earl) Trusts 196 V. Janssen 79, 81, 82, 83, 101, 109, 140, 141, 143, 144 Chesham (Lord) , In re ; Cavendish V. Dacre 455 Child V. Comber 318 u. Godolphin 318 v. Mann 347 Childers c. Childers 507, 508 Cholmondeley o. Cholmondeley ... 447 V. Clinton 35, 389, 399, 426 V. Oxford 638 Christ's College (Case) 493 Christ's Hosp. v. Grainger 601 n. Hawes 493 Christie o. Courtenay ... 235, 505, 508 V. Craig 391 v. Gosling 405 Chudleigh's Case 395, 406, 407 Chumley, Ex p 573 Church Estate Charity; Wands- worth, In re 492 Churchill v. Churchill 451, 4-57 Clancarty (Lord) v. Latouch .... 224 Clapham ». Shillito 86 Clarendon (Earl) v. Barham ... 240, 241 V. Hornby 278, 279 Claringbould ». Curtis 309 Clark J). Abingdon (Lord) 551 V. Cort 603, 604 V. Grant 71 V. Hackwell 317 Tj. Eoyle 621 Clarke v. Hart 665 0. Ormonde (Earl) 234 V. Parker .... 107, 117, 118, 119 V. Eamuz 335, 514 t). Eichards 610 V. Sewell 468, 459 V. Tipping 190 V. Wright 321 Clavering's Case 625 Clay n. Willis 235 Clayton's Case 185, 187, 188 TABIiB OF CASES. xm PAGE ». Rees 435 Clergy Orphan Corp., In re 487 Clifford V. Brooke 339 ». Praucis 492 V. Turrell 339, 340 Clifton V. Burt 240, 241, 243 Clinan v. Cooke 319, 320, 821 Cloutte V. Storey 58 Clowes V. Higginson 71, 312 Clvm's Ca^e 195 Clutterbuck v. Clutterbuck 525 Coakes v. Boswell 65 Coates V. Clarence Ely. Co 378 Cochrane v. Moore 300, 317, 397 Cock o. Eichards 112, 113 Cockburn v. Edwards 61, 131 Cocking V. Pratt 55, 63 Cocks V. Smith 504 Cockshott V. Bennett 153 Coffin i,. Coffin 374 Cogan V. Duffield 70 Coham v. Coham 562 Colburn v. Sims 380 Cole V. Gibson 110 V. White 321 Coleman c. Mellersh 222 Coles V. Pilkington 312, 320 ». Trecothick 102, 133, 135 Collins 0. Archer 36, 266 V. Collins 519 Collins Co. V. Brown 388 V. Curwen 888 CoUinson's Case 479, 482, 493 CoUinson t). Lister 165 CoUyer v. Burnett 498 V. Fallon 520 Colmer v. Colmer 593, 594 Colman u. Orton 632 Colverson v. Bloomfield 622 Colyear v. Mulgrave (Countess)... 521 Colyer v. Clay 64 V. Finch 158 Comiskey v. Bouring Hanbury 446, 447 Commercial Bank of Scotland v. Ehind 223, 224 Commissioner of Stamp Duties v. Byrnes 508 Compagnie Financifere and Com- merciale du Pacifique v. Peruvian Guano Co 633 Conington's Will, In re 547 Consett V. Bell 136 Consolidated Exploration & Fin- ance Co. V. Musgrave 121, 123 Const V. Harris 285 Conyers v. Abergavenny 360 Cood V. Pollard 518, 519 Cook V. Baker 112 V. Collingridge 287 V. Field 144 V, Fountain 504 PAGE Cook V. Fryor 71 V. Gregson 235, 251 Cooke V. Cholmondeley 612 V. Clayworth 96, 293 V. Martyn 364 Cookes V. Cookes 190, 192 Coomber, In re ; Coomber v. Coom- ber 128, 130 Coope V. Twynam 205, 207 Cooper, Ex p 47 , In re; Cooper v. Vesey 250 V. Cooper 455, 457 V. Evans 212 V. Kynoch 403 V. Martin 77 c. Phibbs 52, 67 Cope V. Cope 245 Copis V. Middleton 102, 148, 149, 150, 210 Copland v. Toulmin 185 Corbett c. Corbett 546 Corder v. Morgan 425 Cornwall, In re 239, 240 V. Henson 327 Corley v. Stafford 129, 130 Corser -c. Cartwright 444, 473 Cory o. Cory 96 V. Yarmouth and Norwich Ely 378 Coslake v. Till 307 Cosnahan v. Grice 266 Costa Eica Ely. v. Forwood 137 Cothay v. Sydenham 158 Getting V. Keighley 222 Cotton I!. Cotton 577 Couldey v. Barkieve 377 Coulson V. White 377 Counter v. Macpherson 49 County Life Assoc., In re 52 Courtenay v. Williams 436, 438 Couturier v. Hastie 63 Cousins, In re 164 Coventry v. Barclay 223 (Mayor) v. Att.-Gen 541 Cowles V. Gale 329 Cowper V. Clerk 360, 361 V. Cowper 9, 18 V. Laidler 378, 379 Cox (Creditors of Sir Charles) 232, 233, 236 V. Bennett 570 V. Parker 505 Crabb v. Crabb 509 Crabtree c. Bramble 38 u. Poole 335 Crampton v. Walker 609 Cranstown (Lord) v. Johnston ... 543 Craven v. Stubbins 46, 195 Crawshay c. Maule 285 V. Thornton 842, 344, 346 Craythorne v. Swinburne 207 TABLE OF CASKS. 330 58 898 390 PAGE Croft V. Day 387 V. Graham 37 D. Powell 425 Crofton V. Ormsby 161 Crooks V. De Vandes 446 Crosbie ». Murray 451 Crosby v. Marriott 622 Cross V. Sprigg 299 Crossling v. Crossling 75 Crowder v. Austin 121 Crowe V. Ballard 127 V. Clay 43 Crowfoot V. Gurney 431 Crozier v. Dowsett 233 Curwys v. Colman 394, 447 Cud V. Enlter 303, 308 Cullingworth v. Lloyd 153, 154 Curl Bros. v. Webster 388 Curling v. Plight Cursou V. Bellworthy Curteis' Trusts, In re Curtis V. Buckingham (Marq.) ... V. Curtis 216, 264, 265, 266 V. Perry .... 33, 34, 78, 507, 556 ». Price 151 V. Eippon 448 V. Worthington 508 Cutter V. Powell 194 Da 'Costa v. Davis 546 V. De Paz 489, 491 V. Mellish 563 Dagenham (Thames) Dock Co., In re 549 Dalbiac v. Dalbiac 94 Dalby o. PuUen 330 Dale 0. Sollet 603 Dallas, In re 437 V. Walls 204 Dalston v. Coatsworth 42 Dalton, In re 567 Daly V. Kelly 870 Damus' Case 493 Danby v. Danby 230 Daniel ». Arkwright 47, 52 V. Newton 571 V. Skipwith 424 V. Sinclair 51, 57, 62, 222 Daniels v. Davison 161, 163, 885 Danvers v. Manning 78 Darbishire v. Home 538 D'Arcy v. Blake 398 Dare "Valley Rly., In re 616 Darley v. Darley 578 Darlington (Earl) v. Bowes 362 V. Pulteney 47, 76, 78 Darlow v. Cooper 418 Dartnall, In re ; Sawyer v. God- dard 535 Darvill o. Terry 150 Dashwood v. Bithazey 424 Dashwood v. Maguire 219 V. Peyton 454 Davenport v. Bishop 398, 405 Davidson, In re; Mintz v. Bourne 497 Davies v. Cooper 90 ... Dodd 44 v. Ga,s Light and Coke Co. 626 V. London and Prov. Marine Ins. Co 92 V. Otty 125 V. Thomas 517 V. Topp 242, 245 Davis' (Dr.) Case 570 Davis, In re; Davis v. Davis ... 536 ; Hannen u. Hilly er 491, 496, 497 Davis' Trust, In re 498 Davis B. Dysart (Earl) 298, 631 V. Hone 329 ». Marlborough (Duke) 121, 140, 351, 352, 434 V. Shepherd 326 u. Spurling ... 223, 224, 470, 539 V. Symonds 68 v. Turvey 280 Davy V. Pollard „ 588 Dawson, In re; Dawson v. Jay ... 571 V. Whitehaven (Bank) 422 Day J). Brownrigg 30, 364 V. Luhke 829 Deakin, In re; Starkey v. Eyres 106 Dearie v. Hall 37, 429, 436, 437 Debenham «. Mellon 101 V. Ox 109 Debeze v. Mann 464 De Carrifere v. De Calonne 622 De Clifford (Lord) , In re; Lord De Clifford v. Quilter 534 Decks V. Strutt 229, 253, 254 De Garcia v. Lawson 498 De Hoghton v. Money 435 Delver v. Barnes 615 Delves v. Gray 168 Demaindray v. Metcalf 428, 429 De Manneville v. De Manneville 559, 560, 561 De Mattos v. Gibson 801 Dendy v. Powell 609 De Nicholls v. Saunders 418 De Nicols, In re; de Nicols v. Curlier 237 Dent V. Bennett 128, 130, 132, 136 Denton v. Stewart 316, 326, 340 Denny v. Hancock 330 Denys v. Shuckburgh 192 Derby v. Humber 195 Dering v. Winchelsea (Earl) 193, 197, 202, 204, 205, 208 Derry o. Peek 79, 88 Desborough v. Harris 847 Deschamps v. Miller 369, 543 TABLE OF CASES. PAGE Be Therminnes v. De Bonneval ... 491 Devese v. Poutet 468 Devousher v. Newenham 362 Devonshire's (Earl) Case ...... 178, 179 Dibbs V. Goren 51 Dick V. Milligan 616 Dickinson v. Barrow 319, 320 V. Burrell 435 V. Dickinson 473 Dickson, In re 118 ; Hill V. Grant 569 Dilley v. Doig 360 Dillon V. Parker 450, 452, 453, 455, 456, 457 Dibrow v. Bone 399 Dimsdale v. Dimsdale : 144 Dingle v. Cooper 37 Disney v. Bobertson 361 Di Sora v. Phillips 68 Dive, In re; Dive v. Eoebuck 534 Dixon, Ex p 237, 298 V. Enoch 34 V. Evans 59 u. Samuel 454 Docker v. Somes 191, 529 Doddington v. Halkett 524 Dodkin v. Brunt 399 Dodsley ». Kinnersley 312 V. Varley 513, 520 Doe ■». Bancks 554 V. Davies 74, 421 V. Dowell 403 V. Emmerson 614 V. Guy 253 V. Hales 164 V. Joinville 448 V. Lewis 42 V. Manning 147, 174 V. Oliver 432 V. Smith 448 Doherty v. AUman 218, 219, 373 Dolman v. Nokes 65 Doloret v. Bothschild ... 305, 306, 308 Dolphin V. Aylward 242, 268 Dominion Coal Co. v. Dominion Steel and Iron Co 301 Done's Case 220 Donne v. Hart 590 Donnell ». Bennett 301 Dormer's Case 573 Dormer v. Eortescue 216, 217, 265, 364 Douglas V. Andrews 568 V. Baynea 64, 324 V. Douglas 457 V. Eussell 440 Dove B. Dove 392 Dover Coalfields Extension Ltd., In re 136 ]5owdale'B Case 251 Dowell V. Dew 75 Dowling V. Betjemann 298, 306 PAGE Downe v. Morris 423 Downham v. Matthews 601 Downshire (Marq.) v. Sandys (Lady) 372, 373 Dreyfus v. Peruvian Guano Co. ... 627 Drummond i). Att.-Gen. (Ireland) 501 Drury v. Drury 274 Drysdale v. Mace 326 Du Barre v. Livette 632 Duberly v. Day 590 Dubois V. Hole 576 Dudley u. Dudley 11 Duffield V. Elwes 256 Duffy's Trust, In re 590 Dufour D. Pereira 334 Dulwich Coll. V. Johnson 232 Dunbar ». Dunbar 508 Dunboyne (Lord) v. Mulvihill ... 96 Duncan v. Campbell 595 V. Dixon 100 V. Duncan 593, 595 V. Lawson 252 V. Lyon 607 ». Worrall 297 Duncan Fox & Co. u. N. & S. Wales Bank 208 Buncombe v. Greenacre 590 V. Mayer 297 Duncuft f). Albrecht 308 Dundas v. Dutens 152, 325 Dungey v. Angove 345, 346 Dunlop Pneumatic Tyre Co. v. New Garage Motor Co 552 Dunn V. Eeg 625 Dunnage v. White 55, 60, 96 Bunne v. Boyd 257 Durham Bros. v. Eobertson 333, 432, 435, 440 Durham (Earl) ti. Legard 315 Dursley e. Eitzharding 636, 637 Dutton I). Morrison 289 V. Poole 35 c. Thompson 300 Dyer v. Dyer 505, 607, 508, 509 Dykes' Estate, In re 75 Dwyer v. Collins 632 Dymock v. Atkinson 585, 588 Bast ». Cook 455 E. & W. India Dock Co. v. Little- dale 347 East India Co. B. Boddam 40, 41, 42, 44 V. Donald 73 V. Neave 73 Eastern Concessions, Ltd. u. Black Point Synd 369 Eastern Counties Ely. v. Hawkes 294, 305, 316 Eastern Telegraph Co. «. Bent ... 555 Eastewoode «. Vinoke 458 XVI TABLE OF CASES. PAGE Eastland v. Eeynolds 107 Ebrand v. Dancer 507 Echcliffe v. Baldwin 370, 390 Edge V. Worthiugton 421 Edmunds v. Eobinson 195 Edwards ii. Carter 100 V. Freeman 467 V. Jones 338 ». Meyrick 129, 130 V. Warwick (Countess) 198 Eedes v. Bedes 591 Egerton v. Brownlow 404 Eland v. Eland 473 Elderton (Infants), In re 565 Elibank (Lady) u. Montobeir 587 EUard v. Llandaff (Lord) 89, 326 Ellesmere Brewery Co. v. Cooper 205, 216 Elliott V. Merryman 249, 471, 472, 473 Ellice V. Eoupell 634, 637, 638 Ellis B. Emmanuel 209 V. Kerr 290 V. McHenry (Levita's Claim) 154 V. Munson 610 V. Selby 487 Ellison V. Ellison 338 Elme Hosp. v. Andover 360 Elton V. Shephard 585 Emma Silver Mine v. Grant 137 Emery v. Hill 498 V. Waae 614 Emmet v. Dewhurst 318 Emson, In re; Grain v. Grain ... 33 England u. Downs 112 Ennis, In re; Coles v. Peyton ... 207 Erlanger v. New Sombrero Co. ... 137 Ernest v. Croysdill 528 Esdaile v. Stephenson 330 Espin V. Pemberton 163, 167 Essell V. Hayward 287 Eseery v. Cowlard 71 Essex V. Atkins 684 Bstwick V. Caillaud 430 Etches B. Lance 622 European Bank, In re 214 Evans, Ex p 353 , In re ; Welch v. Channell ... 133 ». Bagshaw 279 V. Bicknell ... 79, 82, 86, 157, 158 0. Bremridge 208 V. Edmonds 83 V. Evans 454, 455 e. Llewellin (or Llewellyn) 54, 104, 105 V. Merthyr Tydvil Urban Council 639, 640 B. Eosser 117 Evelyn v. Evelyn 245, 247, 445 Ewer s.. Corbet 472 Ewing V. Orr-Ewing 251, 542 V. Osbaldiston 33, 34 PAGE Eyre v. Dolphin 160, 163 V. Shaftesbury (Countess) 478, 480, 557, 659, 563, 670 Eyton V. Littledale 603 Fabian v. Nunn 321 Fairbrother v. Pratterit 345, 346 Fairclough v. Marshall 418, 421 V. Swan Brewery Co 417, 420 Falcke v. Gray 306 V. Scottish Imperial Ins. Soc. 522 Falmouth (Lord) o. Innye 362 Fane u. Fane 64 Faraker, In re ; Faraker v. Dicrell 492 Farewell v. Coker 55 Farhall v. Farhall 251 Farman, In re; Farman v. Smith 256 Farmers' Mart, Ltd. v. Milner ... 154 Parquharson Bros. & Co. v. King 157 Farr v. Middleton 520 V. Newman 400 Farrand v. Yorkshire Bank 159 Farrant v. Blanchford 93 V. Lovell 373 Farrer v. Hutchinson 105 Farrington v. Knightley ... 230, 254 Faulkner v. Daniel 200 Fawcett and Holmes, In re 331 V. Whitehouse 133 Fawell V. Heelis 519 Featherstonehaugh v. Fenwick ... 287 Fells V. Eeed 298, 302 Fellows V. Mitchell 537, 5.S8 Fenhoulet v. Passavant 243 Fenton v. Browne 86 V. Hughes 633 Fenwick v. Bulman 333 V. Potts 421 Ferguson v. Wilson 20, 341 Fermois' Case 98 Feme v. Bullock 317 Ferris v. Carr 46, 195 Fettiplace v. Gorges 333 Feversham v. Watson 328 Field V. Brown 570 Fielding v. Bound 495 Finch V. Augell 627 v. Winchelsea (Earl) 520 Finlay, In re ; Wilson & Co. v. Finlay 133 Fitzgerald, In re 561 V. Falconberg 167 V. Fitzgerald 61, 577 Fitzhugh 0. Leigh 638 Fitzroy v. Cave 435, 438 o.Gwillim 126 Flack V. Holm 621, 622, 623 Flammank, In re; Wood v. Cock 586 Flanagan v. G. W. Ely 326 Fletcher v. Ashburner 336 V. Bealey 850 TABLE OF CASES. PAGE Plight V. Bolland 307, 335 V. Carnac 335 V. Cook 357, 390 Flint, Ex p 604 V. Howard ... 200, 240, 241, 268 Flood's (Griffith) Case 494 Flower, In re ; Edmonds v. Ed- monds 47 V. Lloyd 105 V. Marten 299 Foley V. Burnell 356 Follet V. Jefferys 632 Folliot V. Ogden 270 Forbes v. Forbes 498 V. Jackson 171, 209 • ». Peacock 473 Ford V. Fowler 447 Fordyce v. Willis 504 Forrest v. Elwes 307, 529 V. Prescott 445, 525 Forrester v. Leigh 243 Forster v. Forster 526 V. Hale 323 V. Hoggart 330 Forth v. Simpson 214 Poster V. Blackstone 521 V. Cockerell 436 V. Denny 563 V. Donald 287 V. Vassall 543 Fothergill v. Fothergill 74 V. Eowland 301 Fountaine v. Carmarthen Ely. ... 52 Fowler v. Fowler 68, 69 V. Garlike 497 Pox V. Mackreth ... 66, 88, 89, 135, 191 V. Star Newspaper Co 638 V. Wright 145 Fox well V. Van Grutten 354, 379 Frail -u. Ellis 518, 519 Frame b. Dawson 320, 321 V. Wood 532 Prampton v. Frampton 595 Prancke, In re; Drake v. Francke 233 Franco v. Alvarez 254, 255 Frank, In re 573 Fraser, In re; Lowther v. Eraser 248 ; Yates v. Fraser 498 V. Wood 315 Frederick v. Aynscombe 613 Freeman v. Bishop 345 V. Cooke 156 11. Fairlie 355, 535 V. Lomas 602, 603, 604, 605 V. Pope 150 Preke v. Carberry (Lord) 252 French v. Macale ... 305, 307, 316, 549 Prewin v. Lewis 390 Friend v. Young 188 Frietas v. Don Santos 183, 184 Frieze-Green's Patent, In re 78 E.J. PAGE Frost V. Knight 113 Fry v. Lane 55, 58, 99, 141 V. Porter 10, 12 I/. Tapson 532 Fuggle V. Bland 353 FuUager v. Clark 82 'Fuller V. Abrahams 121 V. Eedman 45, 233 Purser V. Penton 577 Fyler v. Fyler 534 V. Fynn 562 Gage v. Acton 577 Galam (Cargo ex) 204 Gale V. Gale 405 V. Leckie 284 V. Linds Ill Galton V. Hancock 245 Gambart v. Ball 383 Games u. Bonner 330 Garden Gully United Quartz Mining Co. v. McLister 555 Gardner v. 622 Garrard v. Frankel 65, 73 V. Landerdale (Lord) 430, 435, 505 Garth v. Cotton 218, 373, 407 ■ V. Townsend 75 Garthshore v. Chalie 460 Gartside u. Isherwood 98 Gaskeld v. Durdin 166 Gaskell ». Gaskell 279, 435 Gaunt V. Pyermey 377 Gedye v. Matson 209 Gedge v. Trail 355 Gee V. Liddell 138, 299 V. Pearse 329 V. Pritchard 385, 386 Gen. Accident Assce. Co. o. Noel 20 Gen. Assembly of Free Church (Scotland) v. Overtown (Lord) 501 Gent V. Harrison Johns 219 Gerrard v. Clowes 20 Giacometti v. Prodgers 591, 595 Gibbons v. Causil 59 Gibbs V. Guild 35 Gibson, Ex p 624 , In re 573 V. Ings 297, 298 V. Jeyes 130, 132 V. Eussell 97, 132, 136 ». Seagrim 267 Giddings v. Giddings 512 Giffard v. Hart 354 Gifford, Ex p 52 Gilbee v. Gilbee 573 Gilbertson v. Gilbertson 246 Gilchrist Charity, In re 487 Gilchrist v. Caton 593 Giles V. Giles 78 Gillibrand v. Goold 473 b XVlll TABLE OF CASES. Gilpin V. Southampton (Lady) 233, 234 Gimblett, In re 149 Gladstone v. Birley 513, 514 Glenochy (Lord) v. Bosville 403 Gloucester (Corp.) v. Osborne 490, 505 Glyn 1). Duesbury 344 Goddard ». Carlisle 128, 129, 130 Godfrey v. Littells 262 V. Poole 174 V. Saunders 177 Godin V. London Assce. Co 214 Goldsmid v. Goldsmid ... 107, 460, 461 Goldsworthy, In re 565 Goodfellow V. Burchett 468 Goodman v. Grierson 420 V. Sayers 51, 52, 59, 616 V. Whitcomb 287 Goodtitle v. Otway 27 Goodwin v. Fielding 127 V. Waghorn 421 Gordon «. Gordon ... 55, 59, 60, 85, 93 V. Holland 168, 530 V. Horsefall 37 V. Selby 420 Gorringe v. India Bubber & Gutta Percha Works 436 Goswell's Trusts, In re 337 Goy & Co., Ltd., In re; Farmer V. Goy & Co., Ltd 436, 604 Graham, In re 567 V. Londonderry 579, 581 V. Oliver 330 Granard (Earl) v. Dinikin 386 Grant B. Grant 217, 551, 623 ». Lynam 448 V. Mills 518 Grave v. Salisbury (Earl) 464 Gray v. Churchill 435 V. Haig 192, 536 V. Mathias 123 ■ V. Seckham 209 V. Smith 388 Great Berlin Steamboat Co., In re 124 G. N. Ely. & Sanderson, In re ... 331 Great Western Ins. Co. v. Cunliffe 133 G. W. Ely. V. Birmingham, &c. Ely 390 V. Cripps 62 Greatrex v. Greatrex 286 Green ». Bailey 44 V. Briggs 192 V. Farmer 603 o. Green 452, 581 V. Howell 286 B. Lowes 370, 390 V. Paterson 338 V. Butherford 488 V. Wymer 138 Greenaway v. Adams 316, 326,340 Greenside v. Benson 229 Greenway, Ex p 27, 42 PAGE Greenwood In re; Goodhart v. Woodhead 545 B. Frith 232 Greet'ham v. Colton 444 Gregory b. Mighell 321 B. Wilson 550 Gresley b. Adderley 355 V. Mousley 131 Gretton b. Howard 453, 455 Greville ». Parker 555 Grey v. Grey 505 Griffies v. Griffies 280 Grifath V. Spratley 102 Griffiths «. Evan 448 Grigby v. Cox 584 Grimes u. French 364 Grinstone, Ex p 561 Grindey, In re ; Clowes ». Grindey 5.34 Grosvenor, Ex p 625 Grove v. Bastard 613 Guest B. Homfray 330 B. Smythe 130, 132 GuUan v. Grove 76 GuUey v. Cregs 448 Gumbleton, Ex p 624 Gurnell B. Gardner 435 Gyles V. Wilcox 384 Gynn ». Wilcox 384 Habershos v. Bluston 290 Hacker b. Mid-Kent Ely 333 Hadley b. London Bk. of Scotland 390 Hagg ». Darley 121 Haigh, Ex p 421 V. Brooks 102 B. Jaggar 218, 375, 379 Hale B. Saloon Omnibus Co 545 Haley B. Bannister 568 V. Goodson 391 Halifax Joint Stock Bk. (/. Gled- hill 151, 154 Hall, Ex p 435 , In re; Foster ». Metcalfe 255 B. Cazenove 545 B. Hall 286, 300 V. Hallett 536 B. Hill 468 B. Smith 163 V. Warren 305, 312, 316 Hallett u. BouseCeld 204 Halsey v. Brotherhood 380 V. Grant 314, 332 Hamilton, In re; Trench v. Hamilton 446 B. Houghton 431 u. Watson 89, 92 V. Wright 136 Hammerton v. Dysart (Earl) ... 378 Hammond v. Messenger 441 Hampden v. Hampden 105 TABLE OF CASES. XIX PAGE Hampton, In re; Public Trustee B. Hampton 390 Hanbury v. Hussey 273 V. Walker ..." 563 Hancock v. Hancock 600 Hauoomb v. Allen 534 Hannington v. Dunchastel 122 Hankin v. Middleditch 638 Hanley v. Pearson 69 Hansard v. Eobinson 48, 44 Hanson, Ex p 60S V. Gardiner 360 V. Keating 37, 589, 590 Harbert's Case 197 Hardcastle v. Smithaon 220 Harding v. Glyn 48, 106, 443 Hardwick v. Myned 213 Hardwicke (Earl) v. Vernon 190, 192, 223 Hare & O'More's Cont., In re ... 71 Hargreavee, In re; Dicks v. Hare 265 Harland v. Trigg 447 Harmon v. Cannon 52 Harnett v. Yielding 324, 826 Harrington (Countess) v. Harring- ton (Earl) 405, 406 Harrington v. Churchward ... 182, 190 «. Long 438, 440 Harris, In re; Harris v. Harris 237 0. Beauchamp 351, 352 V. Brisco 437, 438 V. Cotterell 689 V. Pepperell 326 V. Eickett 324 V. Tremenheere 130 ». Trueman 628 Harrison, In re ; Harrison v. Harrison 219 V. Austin 74 V. Barton 509 V. Forth 168 V. Guest 140 V. Gurney 542 V. Harrison 120, 251, 252 V. Eutland (Duke) 377, 379 V. Seymour 208 Harold v. Plenty 427 Harrow School v. Alderton ... 372, 374 Hart «. Hart 565, 595 V. Herwig 806, 391 V. Minors 254 Hartley v. Hitchcock 613 V. Eice 112 V. Enssell 438, 489 Hartopp V. Hartoppp 129 Harvey, In re; Harvey v. Hobday 200 V. Aston 119 V. Harvey 578 I). Mount 99 Harwood v. Tooke 110 Haslam & Hier-Evans, In re 180, 629 PAGE Hatch V. Hatch 131, 134 Hatfield v. Mine* 467 Hatton V. Car Maintenance Co., Ltd 513 V. Harris 300, 561 V. Haywood 353 Haughton v. Haughton 118 Hawkins v. Day 229 Haythome, In re; Graham v. Massey 268, 313, 869, 549 Hay's Case 138 Hay V. Palmer 198 Hayes ». Hayes 357 V. Ward 206 Haygarth v. Wearing 86 Haynes v. Eoster 461, 457 Hays, Ex p 669 Hayward t). Hayward 389 Haywood v. Brunswick Perm. Benefit Bldg. Soc 811 V. Cope 294, 312 Plead, In re. Ex p. Head's executors 289 V. Head 598, 594 Heard v. Stanford 88 Heath v. Crealock 36 V. Hay 188 V. Lewis 118 Heather, In re; Pumfrey v. Eryer 462 Heaton v. Dearden 279 Heffer v. Martyn 121 Hele V. Bexley (Lord) 215 Heli, In re 661 Helmore v. Smith 94, 289 Henning v. Clutterbuck 469 Henderson v. Astwood 419 Henkle v. Eoyal Assoce. Co 68 Hennesey v. Bray 227 Henry v. Armstrong 800 Hensman v. Eryer 246 Henty v. Wrey 106 Hepworth v. Hepworth 509 Hercy v. Eerrers 298 Herman b. Charlesworth 109 Hetley v. Morton's Cont., In re ... 532 Hewitt V. Foster 639 B. Looaemore 167, 158, 162, 163 Hewson, In re 457 Heywood, Ex p 513 Hibbert 0. Cooke 623 Hiern u. Mill 160 Higgin c. Liddal 171 Higginbotham v. Hawkins 219, 221, 389, 340 Higgins B. Betts 878, 879 ». Hill 144 B. Samuels 815 Hill V. Barclay 549, 550, 551, 558, 566 B. Boyle 434 B. Buckley 314 u. Curtis 227 XX TABLE OF CASES. PAGE Hill V. Fulbrook 278 V. Hart-Davies 388 V. Hill 267 V. Paul 122, 434 V. SimpBon 172, 173, 249, 250, 472, 528 Hillary, In re 667 Hilton V. Biion 624 V. Scarborough (Lord) 361 Hinchcliffe v. Hinchcliffe 462 Hine v. Dodd 165 Hinton v. Parker 228, 229 Hirst V. Tolson 194 Hitchcock V. Giddings 57, 63, 64 Hitchman ®. Stewart 204 Hoare, In re; Hoare ii. Owen 362, 419 V. Brembridge 79 V. Colenciu 183, 184 B. Osborne 489 Hobday v. Peters 131 Hoblyn v. Hoblyn 129 Hobson V. Bass 209 V. Trevor 422 Hoddel V. Pugh 336 Hodgens v. Hodgens 593 Hodges, In re 667 Hodgkinson v. Fernie 615 Hodgson, Ex p 552 , In re; Hodgson v. Fox ... 606 V. Shaw 210 Hodson V. Henland 321 Hogg V. Kirby 380, 387 Hoggart V. Cutts 346, 347 V. Scott 330 Hoghton V. Hoghton 129 Holbird v. Anderson 430 Holbrook v. Sharpey 126, 296 Holden v. Hayn 333 Holding V. Elliott 69 ». Thompson 122 Holditoh V. Mist 270 Hole V. Thomas 374 Holford, In re ; Holford v. Holford 569 V. Yate 266 Holgate V. Shutt 222 Holland, In re ; Gregg v. Holland 318 V. Holland 540 V. Prior 173 Hollinrake v. Lister 550 HoUis V. Bulpitt 221 V. Edwards 319 V. Whiteing 326 Holloway v. Headington 324 V. Millard 149 Holman v. Loynes 129, 130 Holmes, In re 436 Holmes v. Goghill 74, 75 0. Matthews 420 V. Mentze 290 Holroyd v. Marshall 432 Holt V. Holt 308 PAGE Holtzapffel v. Baker 49 Homan v. Moore 346 Honner v. Morton 590 Honywood v. Honywood 219, 376 Hood (Lady) of Avalon v. Mac- kinnon 63, 69 V. Aston 370, 390 V. Phillips 200 Hood Barrs, Ex p 596, 599 V. Cathcart 696 V. Heriot 596, 599 Hooley v. Hatton 469 Hooper, Ex p 320, 421 1). Keay 188 V. Smart 331 Hope V. Carnegie 542 Hope Johnstone, In re 120 Hopkins, Ex p 563 , In re; Dowd c. Hawkin ... 354 V. Hewsworth 436 V. Hopkins 390 Hopkinson v. Burghley (Lord) ... 386 V. Bolt 171, 172 Hopwood J). Hopwood 463 Hore J). Becher 64 Horlock, In re; Calham v. Sipith 468 V. Smith 419 Home, In re; Wilson u. Cox Sinclair 49 V. Pringle 539 Horrell v. Waldron 229 Horrocks v. Eigby 331 Horsey Estate Co. v. Steiger 665 Horton v. Bott 634 V. Smith 200 Horwood V. Schemedes 221 Hotchkis u. Dickson 68 Hotham v. Stone 209 Hovenden v. Annesley (Lord) 35, 225 How V. Bromsgrove (Tenants) ... 360 V. Vigures 424 V. Winterton (Earl) 399, 633 Howard v. Brownhill 254 D. Castle 121 V. Digby (Earl) 580, 586 V. Harris 417, 420 V. Howard 231 V. Papera 354 Howe V. Dartmouth (Lord) 196 V. Smith 327 Howell V. Price 246, 246, 445 Howells V. Jenkins 451, 453 Howkins v. Howkins 623 Howley Park Coal & Canal Co. v. L. & N. W. Ely 379 Hubbard v. Alexander 469 V. Hubbard 280 Hudson V. Granger 214 V. Hudson 511, 540 Huggins, Ex p 121 Hughes' Trusts, In re 436 TABLE OF OASES. XXI PAGE Hughes V. Graeme 306 V. Kearney 515, 518 V. Morris 78 V. Science 559 V. Walmesley 436 V. Wells 77 Hughes Hallett v. Indian Mammoth Gold Mines Co 207 Huguenin v. Baseley 107, 128, 136, 140, 259, 363, 392 Huish, In re; Bradshaw v. Huish 468 Hulme V. Tennant ... 101, 583, 584, 586 Humphreys v. Harrison 373, 420 Hummings v. Williamson 631 Hunt I). Luck 163 V. Peake 379 Hunter v. Atkins 130 V. Att.-Gen 497 V. Belcher 224 •». Daniel 438 Hurlbatt & Clayton's Cont., In re 86 Hurst V. Beach 254, 255 Hutchinson and Tennant, In re ... 448 u. Heyworth 431 v. Massareene 352 Hyde v. Parrat 356 V. White 144 Hylton V. Hylton 134 Hyman v. Helm 369 Impebial Gas Light & Coke Co. V. Broabent 377 Imperial Loan Co. v. Stone 95 Imperial Mercantile Credit Assc. V. Coleman 137 Ind Coope & Co. o. Emmerson 36, 266, 298, 630, 633 Incorporated Society v. Eichards 485, 493 Ingram v. Stiff 391 Inman v. Wearing 37 Inwood u. Twyne 570 Irnham v. Child 53, 68 Ironmongers' Co. d. Att.-Gen. 490, 491, 492, 495 Irving V. Young 224 Irwin, In re; Irwin v. Parkes ... 34 Isaacson v. Harwood 540 Ives V. Metcalfe 633 Jaokman v. Mitchell 153, 151 Jackson's Will, In re 47 Jackson, t). Cummins 214, 51-S V. Duchaise 155 V. Hobhouse lO'i. V. Innes 578 V. Leap 234 D. Petrie 543 J). Bowe 36, 165, 633 Jacques v. Millar 340 FAOE James, Ex p 136, 512 V. Dean ._. 512 V. Kerr 55, 141 V. Morgan 81, 545 Jarrold o. Houldston 382 Jefferson v. Durham (Bp.) 364, 371, 372 V. Morton 410 Jeffery, In re; Arnold v. Burt ... 569 Jeffreys v. Jeffreys 338, 397 Jeffs V. Wood 601 Jenkins & H. E. Eandall's Cont., In re 512 Jenkins d. Moore 98 Jenner v. Harper 493 V. Morris 298 V. Turner 117 Jennings v. Broughton 87 Jervis v. Berridge 327 V. Wolferstan 213 Jervoise v. Northumberland (Duke) 401, 403, 404 V. Silk 568 Jessop V. Watson 338 Jeston 1). Key 309, 310, 404 Jesus College v. Bloom 217 Jew V. Thirkenell 198 Jewon V. Grant 213 Jewson V. Moulson 588 Job V. Cordeaux 192 V. Job 191 1). Potton 192 Jobson V. Palmer 532 Jodrell V. Jodrell 197, 579 Johnson, In re 354 , In re; Sandy c. Eeilly 256 Wragg ». Shand 233 Johnson v. Bragge 70 ^— V. Child 199, 240 V. Curtis 221, 222, 223 V. Gallagher 586 ». Kennet 473 o. Legard 174 B. Mills 357 Johnstone ». Beattie 662, 666, 867 Joliffe V. Baker 64, 71 Jones, In re; Parrington v. Forrester 199, 278, 522 ». Bennett 617 V. Chappie 373 V. Corry 615 V. Croucher 147, 174 V. Heavens 305 V. Jones 612 V. Lewis 191 V. Llandaff Urban Council 378 V. Martin 155 V. Merioneth Bldg. Soc. 121, 124, 125 V. Monte Video Gas Co. ... 31 c. Morgan 200, 458 V. Mossop 605 TABLE OF OASES. PAGE Jones V. North Vancouver Land & Imp. Co 555 D. Selby 256 V. Smith ... 86, 162, 171, 427, 428 V. Thomas 132, 345 V. Waite 120 V. Yates 291 Jope V. Morshead 273 Jorden v. Money 82 Joseph J). Lyons 30 Joy V. Campbell 638 Joynes v. Tatham 325 Kapitigalla Eubbee Estates v. Nat. Bk. of India 224 Kay V. Johnston 214, 278, 522 Keane v. Boycott 100 «. Eobarts 250 Kearley v. Thornton 123, 124 Kearsley v. Cole 52 Keate v. Allen 110 Keble o. Thompson 539 Keech u. Hall 419 V. Sandford 512 Kehoe v. Lansdowne (Marq.) 219 Keily v. Monck 116 Kekewich v. Manning ... 123, 300, 397 V. Marker ....» 374 Kelly V. Bnderton 86 V. Morris 382 V. Solari 62, 457 Kelsey, In re ; Woolley v. Kelsey 454 Kemp V. Finden 204 V. Kemp 106 V. Pryor 9 V. Weatbrook 427, 428 Kempsoii v. Ashbee 129, 134 Kendall, Ex p. 240, 241, 267, 271, 272, 527 V. Granger 486 V. Hamilton 72, 289 Kennard v. Kennard 47 Kennedy v. De Trafford 192 Kenney v. Wrexham 49, 91 Kenrick v. Mountstephen 278 Kensington, Ex p 421 Kent V. Elstob 615, 616 «. Kent 221 Kerr v. Eeed 626 Kershaw, In re ; Whittaker u. Kershaw 213 Ketleby o. Atwood 405 Kettlewell v. Watson 162 Key V. Bradshaw 112, 113 Keys V. Williams 421 Kidney v. Coussmaker 238, 455 Kilmer v. Brit. Columbia Orchard Lands, Ltd 549 Kimber v. Barber 132 Kimpton v. Eve 807, 373 King V. Dennieon 524 PAGE King V. Hamlet 142, 143, 145 0. King 370 0. Malcott 255 V. Smith 373, 420, 425 B. Wilson 329 I). Zimmerman 45 Kingston (Lord) v. Lorton (Lord) 447 Kingston - upon - Hull (Corp.) v. Harding 92 Kinnaird v. Webster 185 Kinnoulc. Money 422 Kimberley v. Jennings 326 Kirby v. Marlborough (Duke) ... 188 Eavens worth Hosp., Ex p. 488 Kirk V. Eddowes 459 Kirkham v. Shawcross 214 V. Smith 20O Kirkman ». Booth 136 Kirkwood v. Thompson 418 Kirwan's Trusts, In re 47 Kitts V. Moore 364 Knatohbull v. Hughes-Hallett .... 189 Knebell v. White 221 Knight V. Boughton 447 V. Bowyer 221 V. Bulkeley 434 V. Davis 243 V. Hunt 154 V. Plymouth (Lord) 532, 533 V. Simmonds 311 Knott, Ex p 170, 171, 428, 512 V. Morgan 387 Knox V. Symmonds 616 Lacan v. Mertins 241 Lacey, Ex p 128, 135, 136, 512 V. Ingle 169, 171 Lacou, In re ; Lacon u. Lacon 459, 463, 467 V. Allen 421 Lagunas Nitrate Co. v. Lagunas Synd 137 Lake v. Brutton 208 o. Craddock 288, 509, 522 V. De Lambert 600 V. Gibson 509 Lamb c. Lamb 457 Lambe v. Eames 447, 448 Lambert v. Lambert 593 V. Rogers 298 Lamlee v. Haninan Ill Lampet's Case 356, 431 Lambeth Charities, In re 492 Lamplugh v. Lamplugh 506 Lancefield v. Iggulden 245 Lane, Jn re; Belli D. Lane 77 V. Leadbetter 384 V. Newdigate 307, 378 Lane Pox, In re ; Gimblett, ex p. 149 Langley o. Oxford (Earl) 472 Langston Ex p 421 TABLE OF CASES. PAGE Langstaffe v. Fenwiok 61 Langston v. Boylston 344, 345 — — V. OUivant 539 Langton v. Horton 420, 440 V. Langton .., 354 V. Waite 427 Lansdowne (Marq.) v. Lansdowne (March.) 217, 219 V. 53 Lanoy v. Athol (Duke) 568 Lashley v. Hogg 237 Latouohe v. Dusany 165, 166 Latymer's Charity, In re 495 Laughter's Case 546 Lavery o. Pursell 20, 341 Law V. Garrett 617 V. Law 355 Lawless v. Mansfield ... 131, 133, S12 Lawley v. Hooper 80 Lawrence v. Campbell 631 u. Lawrence 453 V. Smith 881, 382 Lawton v. Carrfflion 59 Lea, In re; Lea v. Cooke 500 Leach v. Leach 133 Leader v. Pnrday 383 Leake v. Leake 623 Learoyd v. Halifax Banking Co. 632 V. Whiteley 534 Leary v. Shout 287 Leathes v. Leathes 297, 298, 630 Lechmere v. Brazier 316 V. Carlisle (Earl) 459, 460 V. Charlton 526 V. Lechmere (Lady) ... 459, 460 Leconturier v. Beg 388 Lee V. Alston 218 V. Clutton 161, 162, 165 V. Jones 92 V. Lee 309 V. Page 195 V. Park 234 Leech v. Trollop 634 Leeds (Duke) v. Amherst (Earl) 192, 223 V. Strafford (Earl) 262 V. New Radnor (Corp.) ... 44, 263 Leeke c. Bennett 255 Lees V. Nuttall 133 Legard v. Hodges 520 Legott V. Barrett 324 Leigh, Jn re; Leigh ». Leigh 571 V. Burnett 419 V. Dickeson 214, 522 Legg V. Goldwire 70, 71 Leighton v. Leighton 361, 362, 463, 467, 612 Lemau v. "Whitley 505 Lench u. Lench 521 Le Neve v. Le Neve 161, 162 Lennon v. Napper 315, 329 PAGE Lenty v. Hillas 70 Leonard v. Leonard 56 Lerouse «. Brown 319 Leslie, In re; Leslie v. Prench ... 622 V. Baillie 63, 436 V. Thompson 85 - ». Young 384 Leslie, Ltd. v. Shiell 101 Lester v. Eoxcroft 312, 320 Lettershedt v. Broers 540 Letton I). Gooden 361 Lever v. Goodwin 380 Levick v. Epsom and Leatherhead Ely 164 Levy V. Walker 388 Lewis, Ex p 624 , In re; Lewis v. Lewis 33, 46, 136, 660 ». Pullarton 382, 384 V. Hillman 131, 132 Lightfoot u. Heron 96 Like V. Beresford 592 Liley v. Hey 448 Lilford (Lord) v. Powys-Keck 243, 519 Lilia V. Airey 576 Lind, In re; Industrials Finance Synd., Ltd. v. Lind 432 Lindo V. Lindo 65 Lindsay v. Lynch 321, 323, 324 Lindsay Petroleum Co. o, Hurd ... 86 Lingen v. Simpson 285, 303 Linley v. Taylor 450 Little, In re 600 Liverpool Household Stores Assn. t). Smith 388 Llanover v. Homfray 640 Lloyd, In re; Lloyd v. Lloyd ... 37 V. Attwood 93, 421 V. Banks 436, 437 V. Branton 117, 119 V. Grace Smith & Co 84 V. Johnes 201 «. Loaring 302 V. Mason 588, 501 V. Pughe 579 V. Bead 507 V. Spillet 396 's Bank v. Pearson 436 Locke V. Lomas 473 Lockhardt c. Hardy 424 Locking v. Parker 417 Lockwood V. Ewer 427 Lodge V. Prichard 289 Logan V. Wienholt 155, 305, 316, 334, 549 Lomas v. Wright 243 London and Birmingham Ely v. Winter 327 London and County Bank v. God- dard 169, 172 V. Lewis ... 167, 310, 370 TABLE OF CASES. PAGE liondon Chartered Bank of Aus- tralia V. Lemprifere 568 London and Midland Bank v. Mit- chell 427 London (City) v. Nash 308 V. Perkins 361 ». Pugh 307 L. & N. W. Rly., In re; Cooper, ex p 47 L. & S. W. Rly. 0. Blackmore ... 65 London Gen. Omnibus Co. v. Hol- loway 92, 155 Long V. Dermis 118 V. Eicketts 119 Longman v. Winchester 384 Loog (Hermann) v. Bean 389 Loosemore «. Knapman 525 Lopdell V. Creagh 225 Lord V. Jeffkins 144, 145 Lound V. Grimwade 121 Loval (Lord) v. Leeds (Duchess) 219 Imw v. Bouverie 82 V. Burron 405 Lowe ». Peers 112, 113, 119 Lowndes v. Cornford 345 V. Lane 85 Lowson V. Copeland 535 Lowther v. Carlton 167 Lowthian v. Hasel 171, 428 Loxley v. Heath 324 Loyd V. Brooking 406 Lubbock V. Tribe 221 Lucas V. Dixon 318 V. Lucas 579 Lucy's Case 59 Luddy's Trustee v. Peard 130 Ludlow (Corp.) v. Greehouse 484, 488 Lumley v. Wagner 307, 392 Lunn V. Thornton 432 Lupton V. White 193, 263 Lush's Trusts, In re 592 Lutkins v. Leigh 243 Luttrell V. Waltham (Lord) 105, 107, 332 Lyde v. Munn 309 V. Mynn 422 Lydney and Wigpool Iron Ore Co. 0. Bird 137 Lyell V. Kennedy 626, 631 Lyon V. Tweddell 195 Lysaght v. Edwards 335 V. Eoyse 573 Lythgoe ». Vernon 452 Lytton (Earl) v. Dewey 385 Mabeb v. Hobbs 435 McCarthy u. Decaix 55 McCormick v. Garnett 63 McCreight v. Foster 333, 334 McCulloch, In re 563 PAGE McCulloch V. Gregory 613 McDonnell v. Heselrige 295 McFadden v. Jenkyns ... 317, 397, 398 McGruther v. Pitcher 517 McKewan v. Saunderson 154 McLeod V. Drummond ... 172, 173, 250 McManus v. Cooke 322 McNeil V. Cahill 154 McQueen v. Parquhar 85, 106, 168 Macartney v. Graham 43 Macaulay v. Shackell 638, 639 Macdonald v. Bell 212 V. Longbottom 324 V. Macdonald 252 Macdonnell v. Harding 533 Mackay, In re ; Griessermann o. Kerr 534 V. Bentley 69 V. Douglas 150 Mackenzie v. Coulson ... 68, 195, 405 V. Johnston 183, 184, 191 V. Bobinson 424 Mackintosh v. Pogose * 652 V. Townsend 498 Macklin v. Lichardson 385, 386 Mackreth v. Symmons 171, 214, 514, 515, 516, 518, 519 Maddeford v. Austwick 94 Maddison v. Alderson 319, 321 Maguire, In re 492 Maitland v. Backhouse 129 V. Irving 129 Major V. Lansley 584 Makepeace v. Rogers 190 Makings ». Makings 201 Malcolm v. Charlesworth 440 Maiden v. Menil 62 Malim v. Keighley 394, 446 Mallet V. Halfpenny ... 105, 139, 318 Man D. Ballet 494 Manaton v. Molesworth 364 Manby v. Robinson 345 Mann, In re; Hardy v. Att.-Gen. 496 Manning's (Mathew) Case 356 Manning v. Spooner 245 Mansel v. Mansel 407 Mansell v. Valley Printing Co. ... 385 Manton ». Manton 351 Mare v. Sandford 154 Marker v. Marker 219 Marples v. Bainbridge 118, 119 Marriage v. Skiggs 234 Marriott v. Marriott 228, 253 Marsden's Trust, In re 105, 106 Marsh v. Lee 169, 170 Marshall v. Colman 285 V. Rutton 586 Martidale v. Martin 478 Martin v. Cooper 33 V. Nutkin 391 V. Tomkinson 124 TABLE OF CASES. XXV PAGE Maskell and Goldfinch's Cont., In re 100 Mason, In re 188 t). Armitage 308 V. Gardiner 126 V. Goodburne 634, 637 V. Provident Clothing and Supply Co 121 Masonic Gen. Life Assn. v. Sharpe 35 Massenburgh v. Ash 398 Massey v. Banner 183, 184 0. Davies 190 Masson Templar & Co. v. De Pries 244, 248 Mathews v. Feaver 148, 150 Matthew v. Bowler 519 Matthews v. Cartwright 428 V. Jones 890 V. Newby 231 ». Smallwood 555 Matthewson v. Stockdale 384 Maugham ». Ridley 421 V. Sharpe 510 Maundrell v. Maundrell 160 Mawman v. Tegg 381, 384 Maxey Drainage Bd. v. G. N. Ely. 378 Maxwell v. Montacute 325 May V. Piatt 60, 65, 66, 68, 69, 71, 318 Mayer v. Murray 418 Mayhew v. Crickett 138 Mead v. Orrery (Lord) 163, 178 Mecca, The 187 Meek v. Kettlewell 338 Melhuish v. Moore 98 V. Milton 79, 176 Mellish «. Richardson 629 Merchant v. Driver 249 Mercier v. Mercier .". 509 Meredith u. Wynne 329 Mestaer ». Gillespie 35, 78 Metcalf V. Hervey 344 V. Pulvertoff 166 Metcalfe v. Hutchinson 444 Metropolitan Counties Soc. v. Brown 66, 71, 294 Metropolitan Asylums Bd. v. Hill 877 Metropolitan Rly. v. Woodhouse ... 390 Meux V. Bell 487 V. Howell 430 Mexborough (Earl) ». Whitwood Urban Council 631 Middleton's (Sir Thomas) Case... 482 o. Brown 101 V. Jackson 860 V. Middleton 35, 81, 318 V. Pollock; Knight and Ray- mond, ex p 608, 605 V. Pollock; Nugee, ex p. 602, 604, 605, 609 Midgley v. Midgley 288 Mignan v. Parry 70 PAGE Milbourne ». Ewart 677 Miles c. Harrison 244 V. Langley 163 V. New Zealand Alford Es- tate Co 59 Millar «. Craig 222, 224, 225 Miller v. Blandist 317 1). Harris 562 u. Warmington 262 Mills V. Banks 422 V. Bowyer's Co 614, 615 V. Campbell, 629 V. Eden ..." 239 V. Parmer 477, 483, 490, 493, 496 V. Haywood 319, 320 Millett V. Davy 873 Milner, ex p.; Milner, In re .... 163 v. Milner 78 Milnes v. Gery 49, 322 Mirams, In re 422 Mirehouse v. Scaife ;... 243 Mitchell «. Hayne 344 Mitford V. Mitford 620 V. Reynolds 498 Mogg V. Hodges 245 Moggridge v. Thackwell 477, 483, 488, 490, 491, 494, 496, 499, 500, 501 Mole I). Mansfield 278 Monck V. Monck (Lord) 463 Mondey v. Mondey 424 Montacute v. Maxwell 139, 326 Montague v. Dudmau 627 B. Sandwich (Earl) 462 Montefiore v. Guedalla 463, 466 Montesquieu v. Sandys ... 130, 132, 133 Montreal (Bank) v. Stuart 294 Moodaley o. Morton 638 Moodie v. Bannister 233 V. Reid 75, 77 Moody V. "Walters 401, 408 Moor D. Black 265 Moore, In re; Trafford v. Macono- chie 120 V. Darton 256 V. Ellis 677 V. Usher 344 Moran v. Race 596 Moravian Society, In re 641 Mordue i). Palmer 78 More V. Preeman 578 V. More 570 Morecock v. Dickens 166 Morehouse v. Newton 223 Morgan, Ex p 521 , In re; Pilgrem v. Pilgrem 249 V. Dillon 560 V. Larivifere 221, 339 0. Marsack 346 ». Mather 615, 616 V. Minett 130 V. Morgan 119 XXVI TABLE OP CASES. "Morice v. Durham (Bp.) 485, 486, 497 Morrison v. Moat 389 Morley v. Loughnan 136 V. Morley 532 V. Eennoldson 115, 119 Mornington (Countess) ». Keane 621, 526 Morocco Bound Synd. c. Harris 388 Morphett v. Jones 319, 320, 321 Morret j). Paske 171 Morrice v. Bank of England 231, 232, 233, 234, 236 Morris ». Baron & Co 326 V. Colman 391 V. Kelly 386 V. McCullock 122 , Ltd. V. Saxelby ... 121, 307, 335 Morrison v. Arnold 640 Morse c. Roach 613 V. Eoyal 127, 136 Mortimer v. Capper 49 J). Shortall 60, 68, 69, 70 Morllock V. Buller 80, 293 Moseley v. Simpson 106 «. Victoria Co 632 Moses V. Levi 537 Moss B. Barton 307 V. Gallimore 419 Motteaux v. London Assce. Co. ... 70 Mount, Ex p 673 Moxhay v. Inderwick 333 Moxon V. Payne 144 Moyle V. Home 317 Mullens v. Miller 84 MuUineaux v. Mullineaux 258 Mundy v. Mundy 264, 265, 276 Munns v. Isle of Wight Ely. ... 621 Murray v. Bogue 383 1). Elibank (Lord) 585, 588, 591, 692 Murrell v. Goodyer 612, 614 Murthwaite ». Jenkinson 406 Mustnpha b. Wedlake 256 Mutlow V. Bigg 337 Naibn v. Prowse 515, 518 Nantes 0. Carrock 136 Nash V. Derby (Earl) 666 V. Inman 99 V. Morley 485 National Phonograph Co. v. Edison Bell Nat. Phon. Co 301 National Provincial Bank of Eng- land, Ex p. ; Boulter, In re ... 70, 318 , In re Newton ... 237 , In re Eees 209 National Provincial Bank ti. Jack- eon 73 V. Marshall 305, 649 V. Glennusk (Baron) 92 PAGE National Trustee Co. of Austra- lasia V. Gen. Finance Co 534 Naylor v. Winch 55, 59 Neal's (Sir Paul) Case 679 Neale, In re 562 V. Neale 59 Neate v. Marlborough (Duke) ... 514 V. Pink 361 Nelson v. Bridges 339 B. Duncombe 673 V. Stocker 87 Nelthorpe v. Holgate 87, 90 Nesbitt V. Tredennick 419 Nevill V. Snelling 140, 141 Neville v. London "Express" Nevpspaper, Ltd 437 V. Matthewman 355 V. Wilkinson ... 35, 82, 83, 111 Newcastle (Duke) v. Lincoln (Countess) 404 (Duchess) V. Pelham (Lord) 631 Newdigate v. Newdigate 374 Newen, In re; Newen v. Barnes 298 Newham v. May 339 Newman v. Barton 213, 627 V. Newman 436, 456 V. Pinto 387 New Eiver Co. v. Greaves 360 Newstead v. Searles 405 Newton v. Bennett 235 V. Marsden 117 Nichol ». Bestwick 152 Nicholas v. Eidley 209 Nichols 1). Chalie 614 V. Pitman 386 V. Eoe 614 Nicholson v. Chapman 522 c. Hooper 157, 428 V. Eevell 208 Nickels v. Hancock 617 Nickolson v. Knowles 346 Nightingale v. Goulburn 485 Nives V. Nives 519 Nocton V. Ashburton (Lord) ... 82, 84 Noel V. Eobinson 213, 229, 517 V. Ward 631 Nordenfeldt ». Maxim Nordenfeldt Guns and Ammunition Co 121 Nokes V. Gibbon 549, 553 t!. Kilmorey (Lord) 315 Norey v. Keep 626 Noriss V. Chambers 369 Norfolk (Duke) v. Myers 360 Norman ». Morrill 243 Norris, Ex p.; Sadler, in re .... 237 North V. Ansall 104 North British Insce. Co. v. Lloyd 92 North London Ely. v. G. N. Ely. 364, 617 North West Transportation Co. v. Beatty 137 TABLE OF OASES. PAGE Northen B.- Carnegie 507 Northern Counties of England Fire Insoe. Co. v. Whipp 1S9 Nugent V. Vetaera 571 Nutbrown v. Thornton ... 302, 303, 308 Oakes v. Turquand 294 Oatway, In re; Hertslet v. Oat- way 193, 263 O'Connor v. Spaight 180, 182 Odessa Tramways Co. v. Mendel 107 Oelkers ». Ellis 35 Ogilvie V. Poljambe 324 Okill V. Whittaker 64, 65, 67 Oldfield, In re ; Oldfield v. Oldfield 447 Oliphant v. Hendrie 498 Olliver's Settlement, In re ; Evered V. Leigh 467 Oliver v. King 151 Olley V. Fisher ... 20, 69, 70, 71, 312 Ommaney v. Butcher 486, 497 Onions v. Cohen 297 V. Tyrer 48 Opera, Ltd., In re 52 Oquendo, The 204 Orby V. Trigg .._. 420 Orme, In re 505 Ormond (Marq.) v. Kynersley 217, 219 O'Korke b. Bolingbroke ... 140, 141, 142 Orr V. Diaper 626 Osborn v. Morgan ... 585, 587, 588, 589 Osborne ». Bradley 311 V. Eowlatt 57 V. Williams 124, 125 Osbaldiatou v. Simpson 125 Osmond v. Fitzroy 109 Ostell V. Le Page 369 Ouseley v. Anstruther 246 Owen V. Griffith 215 V. Homan 92 Owens V. Bean 492 Oxenden v. Compton .... 660, 561, 572 Oxenham v. Esdaile 513 Pacaza Rubber and Produce Co., In re; Burns' Appln 86 Padbury v. Clark 457 Paddon v. Richardson 539 Page V. Broom 329, 504 V. Midland Rly 324 Paget V. Marshall 65, 69 Pain V. Coombs 320 Paine V. Miller 48 Palmer's Case 188 Palmer v. Hendrie 424 B. Johnson 64 — ^- V. Moore 555 . V. Neave Ill Pankhurst 8. Howell 466 PAGE Papillon B. Voice 404 Paradine b. Jane 48, 194 Pardo B. Bingham 237 Parfitt V. Lawless 130 Paris (1. Gilham 346 Paris Chocolate Co. v. Crystal Palace Co 331 Parker b. Brooke 163 B. Gerrard 277 V. McKenna 529 B. Sowerby 450 B. Trigg 278 Parkhurst B. Lowten 631 B. Smith 407 Parkin, In re; Hill v. Schwartz ... 334 Parkinson v. Hanbury 224, 418 Parmeter b. Gibbs 376 Parrott b. Congreve 390 V. Palmer 218 Parry, In re; Scott b. Leake .... 255 Parsons, Ex p 533 V. Baker 448 Partridge v. Partridge 546 B. Walker 478 Paschall v. Ketterick 255 Pascoe V. Swan 214, 278 Pasley v. Freeman 82, 87 Patrick, In re; Bills b. Tatham 437 Paterson b. Scot 243 Patman v. Harland 163 Pawlet B. Ingres 360 Paxton B. Douglas 233 Payton v. Bladwell 110 Peace v. Harris 299 Peachy B. Somerset (Duke) 660, 553, 556 Peacock b. Evans 141 u. Monck 583 Peake, Ex p 519 B. Highfield 297 Pearce b. Crutchfield 571 V. Green 190, 191 V. Piper 370 Pearl v. Deacon 137, 208, 209 Pearse v. Green 535 Pearson b. Morgan 84, 157 Pease b. Hewitt 196 Peckering B. Kimpton 258 Peers b. Lambert 64, 85, 314, 330 V. Neeham 279 Pelton Bros. v. Harrison 599 Pember B. Mathers 309 Pemberton v. Barnes 281 B. Pemberton 79, 612 Pembroke b. Thorpe 305, 308, 321 Pendlebury B. Walker 204 Penn v. Baltimore (Lord) 263, 309, 313, 369, 392, 542 Pennell B. Dysart (Earl) 298 Penrhyu B. Hughes 201 Pentland v. Stokes 166 XXVlll TABLE OF CASES. Percival (Lord) v. Phipps 385, 386 Perkins, In re; Perkins v. Bagot 106 ; Poyser v. Beyfus 65 Perrius v. Bellamy 534 Perry v. Attwood 223 c. Barker 424 V. Meadowcroft 420 — — V. Nat. Prov. Bank of Eng- land 138 V. Phillips 232, 233, 234 V. Shipway 540 V. Truefitt 387 Perry's Almshouses, In re 501 Persse v. Persse 59, 62 Petch ». Tutin 432 Peter v. NiohoUs 151 B. Eussell 158 Peters v. Blake 375 Petit V. Smith 231 Petre v. Espinasse 151 ». Petre 301, 528 Philanthropic Soc. v. Kemp 244 Philip V. Pennell 385, 386 Phillips, Ex p 558, 560, 570, 572 Phillips V. Cayley 77 V. Foxhall 92 V. Homfray 216, 217, 218 V. Hudson 360 V. Jones 298 V. Phillips 37, 159 t). Silvester 514 's Trusts, In re 437 Phillipson v. Gatty 529 Phipps V. Lovegrove 436 Pickard, Ex p 673 V. Sears 156, 157 Pickering «. Cape Town Ely 617 V. Stamford (Lord) 35 Pickett V. Loggon 105 Pickstock V. Lyster 430 Pidcock V. Bishop 83, 92, 137, 155 Pierce v. Thornley 590 V. Webb 297 Piercey v. Fynney 291 Pierson v. Garnett 447 ». Hutchinson 42 Pigot V. Cubley 428 Pike B. Fitzgibbon 101 V. Nicholas 382 Pilcher v. Eawlins 163 Pink, In re ; Pink v. Pink 299, 511 Pinnell v. Hallett 459 Pitt V. Cholmondeley 223 V. Jones 281 Plenty v. West 246 Plumb V. Fluitt 157, 158, 162 Plymouth (Countess) v. Throg- morton 194 Pocoek J). Eeddington 529 Podmore v. Gunning 325 Pollexfen v. Moore 515 PAGE Pollock, In re ; Pollock v. Worrall 463, 466 Poole, 7n re; Thompson c. Bennett 236 V. Adams 521 1). Bott 118 V. Middleton 308 V. Shergold 33, 330 Pooley V. Quilter 136 V. Eudd 302 Poor V. Clark 360 Pope V. Curl 385 V. Gwinn 236 Popham V. Lancaster 360 Porcher v. Wilson 243 Portarlington (Lord) v. Soulby ... 369 Porter t>. Bolton 447 V. Lopes 281 Porter's Case 478, 479, 506 Portland (Duke) v. Topham ...105, 106 Portmore (Earl) v. Taylor 143 Portsmouth (Earl) v. Fellows ... 541 Post V. Marsh 107 Pothonier v. Dawson 428 Potter V. Sanders 333, 334 Powell V. Evans Jones & Co 133 V. Powis 360 V. Eiley 246, 445 V. Smith '. 52 Power, In re; Acworth v. Storie... 235 V. Bailey 333 V. Banks 512 Powis V. Blagrave 373 Powys V. Mansfield 459, 463 Pratt V. Brett 218, 307, 373 Prebble v. Boghurst 577 Prevost V. Clarke 447 Price V. Cheesman 287 V. Fashredge 171 V. Jenkins 173 V. North 236 V. Price 98, 166 V. Varney 215 V. Williams 616 Prichard v. Gee 638 Priddy v. Eose 504 Priestley v. Lamb 570 Priestman v. Thomas 176, 611 Prime v. Stebbing 459 Primrose v. Bromley 207 Pritchard v. Ovey 307 Pritt 5). Clay 225 Probert v. Clifford 680 Progers v. Langham 154 Produce Brokers Co. «. Olympia Oil and Cake Co 615 Professional Life Assce., In re ... 267 Prosser v. Edmonds 431, 434 Prudential Asses. Co. v. Knott ... 388 Pugh V. Heath 30 Pullen V. Eeady 53 PuUerton v. Agnew 545 TABLE OF CASES. XXIX PAGE Pulsford I). Bichards 83, 85 Pulteuey c. Warren 215, 216, 217, 265, 551 Pultuey V. Shelton 372 Purdue v. Jackson 590, 591 Pusey I). Desbouvrie 54 V. Pusey 302 Pybus V. Mitford 506 Pye, Ex p 338, 464 V. George 400 Pym V. Blackburn 48 V. Lockyer 458, 463 Pyne, In re; Lilley b. Att.-Gen. 496 QuABRiBE V. Colston 127 Quartz Hill Cons. Gold Mining Co. V. Beall 389 Quick V. Haines 249 Quin and Axtens, Ltd. v. Salmon 137 Eaffeety v. King 426 Kailton v. Matthews 87, 89, 92 BamloU v. SoojomnuU 121 Eamsay v. Shelwerdine 507 Eamsbotham v. Senior 567 Bamsden v. Dyson 156 V. Hylton 56, 56 Bamuz v. Clay 43 Bandall v. Phillips 151 ■ V. Willis 155 Baphael v. Boehm 636 Batcliffe v. Barnard 421 Baw V. Potts 35 Eawden v. Shadwell 126 Eawlins u. Powell 468 ». Wickham 84 Bawson v. Samuel 603, 604, 605 Bay V. Bay 249 Bayner v. Koehler 227 V. Preston 48 Bead v. Anderson 121 V. Brokman 41 «. Price 152 Beade v. Lowndes 209 Beddaway v. Banham 387 Bedding v. Wilkes 325 Eede v. Farr 554 Eedfern v. Eedfern 631 V. Smith 574 Bedgrave v. Kurd 83, 86 Eedington v. Bedington 201 Bedman v. Bedman Ill Beech v. Kennigate 300, 332 Beed ». Norris 133, 512 Bees V. Berrington 138 V. De Bernardy 98, 122, 141, 437, 438 Bees Biver Silver Mining Co. v. Smith 83, 295 Eeeve -u. Parkins 370 Beeves v. Pope 609 PAGE Beg. V. Cox 632 Behden v. Wesley 533 Beid-Newfoundland Co. v. Anglo- American Telegraph Co 533 Eeid V. Beid 597 • u. Shergold 76 Beiuer v. Salisbury (Marq.) 627 Benals v. Cowlishaw 309, 311 Eendall v. Blair 487 Benter v. Sala 329 Eevell V. Huosey 294, 312 Bevett V. Harvey ;.... 134 Beynell v. Sprye 122, 438 Bex V. Bennett 212 V. Bowes 625 V. Watson 430 V. Whitstable (Free Fishers) 215 Eeyuish v. Martin 255 Beynolds v. Pitt 549, 561, 653 V. Waring 321, 322, 323 Bhodes, In re; Bhodes v. Ehodes 95 V. Bate 131 Bice V. Bice 519 Bich V. Aldred 343 V. Cockell 578, 581 V. Jackson 71, 324 Bichards,, In re; Humber v. Bichards 436 V. Chambers 585 V. Jones 603, 609 V. Noble 218, 219 Eichardson v. Bank of England ... 287 V. Feary 281 V. Horton 72, 73 V. Nourse 616 V. Young 426 Bicherson, In re ; Scales v. Heyhoe 338 Eider v. Kidder 124, 507 Eidgway «. Woodhouse 546 Bidler, In re; Bidler v. Bidler 149, 150 Eidout I/. Plymouth (Earl) 680 Eigden v. Pierce 287 V. Vallier 509 Bipon (Earl) v. Hobart 376 Bippon V. Dawding 576, 577 Eitchie v. Smith 122 Bivaz 0. Gerussi 93 Bivett's Case 482 Eoach v. Garvan 563 Boberdeau v. Ecus 313 Eoberts, In re ; Fowler v. Boberts 234 , ; Knight v. Boberts ... 534 — — V. Barry Improvement Com- missioners 546 D. Gray 99 V. Kuffin 222 V. Marchaut 336 V. Oppenheim 626 V. Eoberts 110, 390 Bobertson v. Hartopp 45 Bobinson, In re 434, 594 XXX TABLE OF CASES. PAGE Eobinson ». Bland 126 V. Byron (Lord) 378 V. Geldard 244 V. Jenkins 347 V. Lowater 444, 472 V. Preston 509 V. Eobinson 536 V. Tongue 514 V. Wall 87 t). Wheelwright ... 457, 546, 599 V. Wilson 212 Eoby, In re; Hewlett v. Newing- ton 461, 467 Rochfoucauld v. Boustead 132, 133, 612 Eochfort V. Ely (Earl) 560 V. Pitzmaurice 403, 404 Sogers, Ex p 298 V. Dallimore 616, 617 V. Hadley 69 V. Hosegood 311 V. Ingham 221, 528 V. Eogers 370 Rolfe V. Gregory 528 EoUand v. Hart 161, 162, 165 Rook V. Worth 308 Eoper ti. Holland 254 Roscarrick v. Barton 417 Eose V. Hyman 555 V. Poulton 290, 577 V. Spicer 555 c. Watson 214, 319,574 EosB V. Close 636 EosBwell's Case 78 Roundell v. Currer 546 Rous V. Barker 262 Rouse V. Bradford Banking Co. ... 138 Routh V. Webster 387 . Rowe V. 638 V. Rowe 468 V. Wood 373 Rowell v. Sutchell 311 Roy V. Beaufort (Duke) 98 Ruchiner v. Polsue & Alferi, Ltd. 377 Rudd V. Lasoelles 314, 315, 331 Eudge ti. Hopkins 360 Euffin, Ex p 527 Eule V. Jewell 555 Ruscoe V. Richards 631 Rush V. Higgs 232, 233 Rushforth, Ex p 212 RuBsel V. Eussel 421 Eussell, Ex p 196 V. Dickson 469 V. East Anglian Ely 353 V. Jackson 632 Eyall V. Eolle 413 !). Eowles 414 Rymer, In re; Eymer v. Stanfleld 492 St. Dunstan (Pooe) v. Beauchamp 480, 488 PAGE St. John V. St. John 595 St. Luke's Parish,!!. St. Leonard's Parish 261 Sackvill V. Aylworth 637 Sackville West v. Holmesdale (Vise.) -404 Sadler v. Hinxman 213 V. Hobbs 539 V. Worley 427 Sale V. Moore 447, 448 Salisbury (Lord) v. Wilkinson ... 190 Salkeld v. Vernon 85 Salmon, In re ; Priest v. Uppleby 512, 529 Salomons v. Knight 389 Salt, In re; Brothwood v. Eeeling 243 Salvin v. N. Brancepeth Coal Co. 377 Sampson & Wall, In re 571 Samuel v. Newbold 141, 295 Sanderson's Trusts, In re 573 Sandon v. Hooper 419 Sanford v. Remington 632 Saunders v. Dehew 161, 400 V. Leslie 518 V. Newbod 295 Savage v. Poster 156, 157, 320 Savery u. King , 127, 129, 144, 145 Saville c. Tankred 302 Savoy c. Dyer 364 Saxby v. Easterbrook 388 Saxton V. Bartley 281 Say V. Barwick 96 Sayer v. Pierce 216 Sayers c. CoUyer 311 Scarf V. Jardine 72 Scawin v. Scawin 508 Schlencker o. Moxsy 283, 577 Schneider v. Heath 83, 87 Schofield V. Ingham 419 Scholefield v. Templer 145 Scholfield V. Londesborough (Earl) 157 Scotland (Bank) v. Christie 185 Scribblehill v. Brett 109, 110 Scott, In re; Langton ». Scott 459, 464 V. Alvarez 312, 341 V. Avery 49 V. Becher 230, 528 V. Coulson 63, 64, 91 c. Hanson 86 V. Liverpool Corp 286 V. Nesbit 126, 295 ■». Porcher 435 V. Rayment 285 0. Surman 191, 520 V. Tyler 115, 117, 118 Scurfield v. Howes 538 Seagrave v. Knight 375 V. Seagrave 593 Searle v. Choat 351, 852, 353 V. Cooke 44, 262 Seaton v. Seaton 100, 456 TABLE OF OASES. PAGE Seddon v. N. Eastern Salt Co. ... 64 Seeon v. Lawson 435 Seeley v. Jago 337 Belby v. Selby 242, 615, 519 Sellack v. Harris 325 Seruenza v. Brinsley 606 Sergeson v. Sealey 202 SetoD V. Slade 45, 315, 329, 335, 836, 416, 544 Seymore v. Treailian 580 Seymour v. Prickett 188 Shaftesbury (Lady) v. Arro-wsmith 627, 630 Shannon v. Bradateed 47 Shardlow v. Cotterill 324 Sharmau v. Bell 615, 616 u. Brandt 290 Sharp, In re; Eickett v. Eickett 51, 62 V. Carter 352 V. Taylor 124 Sharpe v. Foy 101, 105 Shaw V. Bower 473 V. Foster 833, 436 V. Jersey (Earl) 298 V. Neale 613 V. Picton 224 V. Thackray 96 Shedden v. Patrick 105 Sheffield v. Buckinghamshire (Duchess) 611 Sheffield Waterworks v. Yeomans 860 Shelburne (Earl) v. Biddulph 307, 309 Sheldon v. Forteacue Aland 557, 560, 573 Shelf er v. City of London Electric Lighting Co 377 Shelley's Case 398 Shelley v. Westbrooke 664 Shelly V. Nash 142, 145 Shepard v. Jones 419 Shephard, In re; Atkins v. Shep- hard 861 Shepherd v. Harris 539 B. Tilley 171, 428 V. Wright 204 Sheppard, In re; De Brimont v. Harvey 533 V. Elliot 419 Sheridan v. Joyce 528 Sheriff i'. Butler 227 Sherman v. Sherman 628 Sherry, In re; London & County Bk. V. Terry 185, 187 Sherwood v. Sanderson ... 557, 560, 672 Shewen v. Vanderhoat 233 Shields, In re; Corbould-Ellis v. Dales 459, 466 Ship V. Crosskill 82 Shirley v. Ferrers (Earl) 638 Shore v. Wilson 489, 501 Shortridge v. Lamplugh 506 PAGR Shrewsbury (Countess) v. Shrews- bury (Earl) 200 Shrewsbury v. Blount 86 Shrewsbury & Birmingham Ely. V. L. & N. W. Ely 313 Shrewsbury & Chester Ely. v. Shrewsbury & Birmingham Ely. 390 Shuldham v. Smith 630 Shulter's Case 33 Sibbard v. Hill 93 Sibbering o. Balcarres (Earl) 144 Sichel V. Mosenthal 285 Sidebotham v. Barrington -330 Sidney v. Sidney 592 Silk V. Prime 236, 236 Sillitoe, Ex p 291 Simmonds, Ex p 52 Simmons v. Cornelius 317 Simpson v. Howden (Liord) 121, 154, 293, 294, 297 Simson v. Cooke 185 V. Ingham 185, 188 Skip V. Harwood 290, 352 Skipworth v. Skip worth 192, 223 Skyring v. Greenwood 224 Skyrme, Ex p 240, 241 Slade V. Tucker 632 Slamming v. Style 357, 579 Slater's Trusts, In re 142 Sleech's Case 72, 188, 289 Sleight V. Lawson 539 Slevin, In re; Slevin v. Hepburn 497 Slingsby v. Boulton 847 Sloman v. Walter 45, 549 Small V. Marwood 430 Smallman o. Onions 374 Smart v. Smart 562, 664, 665 V. Tranter 597, 600 Smith, In re; Oswell v. Shepherd 73 B. Capron 163 V. Chadwick 85 V. Chichester 630 V. Clarke 121 V. Claxton 338 V. Clay 35, 225 c. Colbourne 312 V. Cowan 351 V. Cowell 353 V. Everett 540 V. Fremont 310 V. Garland 151, 171 V. Harrison 87, 90 V. Hibbard 885 V. Jones 165 V. Kay 128 V. Leveanx 190 0. Moffatt 543 V. Nethersole 623 V. Packhurst 74 v. Pincombe 55, 59 V. Scotland (Bank) ... 83, 86, 155 XXXll TABLE OF CASES. PAGE Smith V. Smith 571 V. Stowell 493 V. Warde :. 299 V. Wheatcroft 327 Smith's Will, In re 356 Smith & Nelson, In re 616 Smyth, Ex p 193, 194, 195 Snelling v. Thomas 327 Sneyd v. Sneyd 76 Snowdon, Ex p., In re Snowdon 207 Soar V. Ashwell 526 Soci^t^ Anon, des Manuf. de Glaces V. Tilghman's Patent Sand Blast Co 389 Soci^t^ Anon. Panhard et Levassor V. Panhard Levassor Motor Co. 388 Solicitors & General Assce. v. Lamb 271 Soltau V. De Held 377, 378 Somers Cocks , In re; Wegg Prosser I). Wegg Prosser 496 Somerset (Duke) v. Cookson 802 Somerset, In re; Somerset v. Poullett (Earl) 399 South, Ex p 435, 436, 440 u. Bloxam 268 Southampton Dock Co. v. Southamp- ton Board 19 Southcomb v. Exeter (Bp.) 329 Southcote's Case 574 Southey ». Sherwood 381 South Wales Ely. v. Wythes ... 331 Southwark Water Co. v. Quick ... 633 Sowden v. Sowden 459 Spalding v. Gamage 388 Sparks v. Liverpool Water Works 555 Speer v. Crawter ... 258, 259, 260, 262 Speight V. Gaunt 532 Spike v. Walrond 273 Spence, In re 562, 563 Spencer (Earl) v. Peek 636 Spencer v. Pearson 169 Spicer v. Martin 309, 311 Spike V. Harding 262 Spiller V. Spiller 310 Spooner v. Pain 434 Sprange v. Lee 284 Spread v. Morgan 456, 457 Sproule V. Prior 242, 519 Sprye v. Porter 437 Squire c. Dean 586 Staokpole v. Beaumont ... 114, 115, 592 Stainton v. Carron Co 221, 235 Stanford v. Eoberts 298 Staniland v. Willott 256 Stannard v. St. Giles (Vestry), Camberwell 379 Stanley v. Stanley 101 Stansfield v. Habergham ... 373, 407 Stapilton v. Stapilton 55, 69, 74 Stapleford Coll. Co 630 PAGE Stapleton v. Stapleton 398 Stead V. Clay 370, 390 Steadman v. Hockley 214 Steel V. Dixon 208 Steff V. Andrews 616 Stephens, Ex p 601, 603, 605 V. Green 437 V. James 568 Stevens, In re ; Cooke v. Stevens 536 V. Bagwell 123, 438 V. Savage 571 V. Stevens 454, 455 V. Trevor-Garrick 600 Stewart v. Hall 523 V. Stewart 53, 56, 62 Stickney v. Keeble 315, 329 Stikeman v. Dawson 101 Stileman u. Ashdown 425 Stillwell V. Wilkinson 102 Stilwell V. Wilkins 353 Stirling v. Burdett 207 V. Forrester 138, 202 Stock V. McAvoy 508 Stockley v. Parsons 597 V. Stockley 58, 59 Stocks V. Dobson 436 V. Wilson 99, 101 Stoell V. Boleter 624, 625 Stogdon V. Lee 582, 599 Stone V. Comptou 92 V. Lidderdale 434 V. Littledale 121 Stones V. Cook 594 Storer t,. G. W. Ely 309 Storey v. Johnson 278 Stowell (Lady) v. Cole 221 Strange t. Harris 230 Strangways v. Eead 133 Strathmore (Countess) v. Bowes 112 Stranbenzee (Van), In re ; Boustead V. Cooper 196 Streatfield v. Streatfield 451 Street v. Eigby 614 V. Street 622 Stribley v. Hawkie 313 Strong V. Bird 299 Stuart , In re; Smith v . Stuart ... 534 Stuart «. Bute (Marq.) 559, 662, 567 V. Kirkwall (Lord) 586 Stubbs ». Sargon 505 V. Slater 133, 427 Stucley, In re; Stucley v. Keke- wich 517 Sturge V. Sturge 58, 60 Sturgis V. Champneys ... 589, 590, 591 Sturt V. Mellish 394 Styles V. Gury 535 Sudlow D. Dutch Ehenish Ely. ... 555 Suffolk (Earl) v. Green 636 Suisse V. Lowther (Lord) 466, 469 Sumner o. Powell 72, 73 TABLE OF CASES. PAGE Snmpter v. Hedges 156 Sutherland v. Brigga 320 Suttou V. Chetwynd (Viae.) 398 Swaine D. G. N. Ely 377 Swan V. Swan 278, 280, 522 Swanwick v. Lifford 422 Sweet V. Southoote 168 Swift V. Swift 564 Sympson v. Hornsby 47 Tailby o. Official Eeceiver 482 Talbot (Earl) v. Scott 375, 379 Talbot V. Frere 171, 235 -^ V. Badnor (Earl) 7..... 455 Talbott V. Shrewsbury (Duke) 467, 468, 563 Tallerman v. Dowring Eadiant Heat Co 389 Talmarsh v. MugleSton 35 Tamplin v. James 20, 30, 312, 326, 341 Tanqueray Willaume & Landau, In re 249 Tapling v. Jones 418, 423 Tate V. Hilbert 256, 338 Tatham v. Wright 612 Taunton v. Morris 589, 594 Taylor v. Beech 325 V. Coenan 150 V. Fields 527 V. Haylin 221, 222 V. London & County Bk. 169, 172, 436 V. Meads 583, 584 V. Plumer 528 V. Popham 417, 450 V. Portington 324 V. Eussell 159, 161, 418 V. Stibbert 335 V. Taylor 467, 609 Taylor Sons & Co., Ex p 151 Teale v. Teale 278 Teesdale v. Teesdale 156 Tenham (Lord) u. Herbert 360, 361, 362 Thackwell v. Gardiner 77 Thellusson v. Woodford 450, 456 Thetford School Case 478 Thomas, In re ; Sutton Garden & Co. 5). Thomas 226 Thomas v. Canterbury (Archb.) ... 229 V. Brigstocke 355 V. Edwards 388 V. Jones 378 V. Lloyd 131 V. Oakley 379 V. Porter 556 V. Thomas 171 Thompson ». Fisher 446 V. Harcourt 302 V. Hodgson 256 v. Hudson 188 V. Leake 34, 78, 556 PAGE Thompson v. Smith 78, 622, 623 V. Stanhope 386 Thomson v. Thomson 122 Thorley's Cattle Food Co. c. Massam 388 Thorn v. Bigland 82 Thornborough v. Baker 256, 416 Thornborrow v. Whiteacre ... 545, 546 Thorndike v. Hunt 227 Thorne v. Heard 533 V. Kerr 249 Thorneycroft v. Crockett 170 Thornton v. Knight 297 V. StokiU 529 Thoroughgood's Case 33 Thursby, In re ; Grant ». Littledale 84 Thwaites v. Foreman 237 Thynne (Lady) v. Glengall (Earl) 459, 460, 462, 465 Thynne v. Shove 388 Tichner, In re 437 Tickel V. Short 224 Tidd V. Lister 590 Tilley v. Bridges 216 Tillott, In re; Lee v. Wilson ... 535 Timson v. Eamsbottom 161, 437 Tindall v. Powell 190 Tinsley v. Lacey 382 Tipping V. Tipping 242, 580 Tissen v. Tissen 366 Tittenson v. Peat 633 Todd V. Gee 340 Toilet V. Toilet 33, 46, 47, 75, 76 Tolson V. Collins 468 V. Sheard 335 Tombs V. Eock 246 Tomlinson v. Harrison 622 Tomson v. Judge 129 Tommins v.- Prout 370 Topham v. Portland (Duke) ... 105, 106 Toplis V. Hurrell 539 Torrance v. Bolton 90 Towell V. Band 157 Tower v. Eous (Lord) 246, 525 Towers ». Davys 301 Townley v. Sherburne 537 Townsend (Marq.) v. Stangrom 53, 69, 105, 324, 327 Townsend v. Ash 217 V. Lowfield 82 V. Westacott 150 Townshend (Lord) v. Windham 149, 244, 578, 580 • Trafford v. Boehm 534 Travis v. Milne 173 Treasury Solicitor v. Lewis 256 Trego V. Hunt 388 Tregonwell v. Sydenham 507 Trenohard v. Wanley 82 Trevor o. Trevor 404 Trimmer v. Bayne 209 XXXIV TABLE OF CASES. PAGE Trinidad Asphalte Co. v. Coryat 160 Troughton c. Binkes 423 Trowell v. Shenton 174 Trower v. Newcombe 83, 86 Trutch V. Lamprell 539 Tubbs, In re; Dykes o. Tubb ... 444 Tucker «. Bennett 68, 300 V. Laing 138 I). Lingern 218 V. Phipps 105 V. Wilson 427 Tuff, /n re; Nottingham, eai p. ... 597 Tuffnell V. Page 493 Tulk V. Moxhay 311 TuUett V. Armstrong 582, 599 Tullock V. Hartley 263 Turner's Case 589, 690 Turner v. Collins 129 u. Green 67 V. Harvey 82, 87, 88, 293 0. Merryweather 638 V. Newport 196 V. Tomer 65 I). Wright 219, 373 Turquand v. Dawson 638 u. Wilson 192 Turton v. Benson 110 u. Turton 387 Tussaud, In re; Tussaud v. Tussaud 462 Tuther v. Caralampi 20 Twiss V. Maasey 289 Twyne's Case 148, 149, 161 Tyler v. Yates 142 Tyndale v. Warre 514 Tynt J). Tynt 580 Tyrrell v. Bank of London ... 133, 192 Tyson v. Fairclough 354 V. Smith 682 Udell v. Atherton 84 Underbill v. Van Cortlaindt ... 619 Underwood v. Courtown 165, 166 Upwell V. Halsey 356 Uvedale v. Bttrick 541 Vachel v. Vachel 356 Vallanoe, In re ; Vallance v. Blag- don 123 Vandenberg v. Palmer 397 Vandergucht v. De Blaquiere 622 Vanderzee v. Willis 428 Vane (Earl) v. Eigden 444 Vane v. Dungannon (Lord) 106 Van Gelder Apsimon & Go. o. Sowerby Bridge Flour Soc. 418, 419 Vansittart v. Vansittart 564 Vardon's Trusts, In re 461, 457 Vaughan, Ex p 563 Venning v. Leckie 284 Venture, The 505, 507 PAGE Vernon's Case 127 Vernon v. Keys 67 V. Vawdry 540 V. Vernon 309 Vezey v. Jamson 486 Vigers v. Pike 326 Viola V. Anglo-American Cold Storage Co 363 Voll T. Smith 317 Vulliamey v. Noble 603, 605 Vyvian v. Vyvian 347 W. V. B 125 Wace V. Bickerton 71 V. Mallard 447 Wade V. Coope 209 I/. Paget 76 Wadman v. Caloroft 553 Wagstaff, In re ; Wagstaff v. Jalland 78 Wain V. Bailey 43 Wake V. Conyers ... 258, 260, 262, 264 Walcot I). Walker 381 Waley Bridge Co. v. Green 137 Walker, In re 95, 588, .592 , In re; Sheffield Bkg. Co. V. Clayton 209 ; Walker v. Buncombe 668 • V. Armstrong 70 V. Jackson 246 V. Limon 159 V. Meager '. 238 V. Perkins 123 V. Symonds 636, 638 V. Taylor 172, 260 u. Walker 326 i>. Ware Hadham & Bunting- ford Ely 621 V. Wetherell 569 Wall V. Stubbs 86 Wallace v. Auldjo 588, 691 Wallis V. Bastard 602, 603 V. Portland (Duke) 123 V. Pipon 229 V. Smith 549, 661 Wallwy V. Coutts 435, 504 Walmsley v. Child 42 V. Walmsley 192, 223, 636 Walsh V. Gladstone 495, 500 V. Stoddart 232 Walter v. Ashton 387 V. Hodge 579 Walters v. Walters 235 Waltham's (Lord) Case 81 Walworth «. Holt 286 Ward V. Bevill 406 V. Buckinghamshire (Duke) . 303, 306 0. Duncombe 436, 437 V. Hobbs 91 TABLE OF CASES. PAGE Ward v. National Bank of New Zealand 208 v. Thomas 249 ■». Turner 256 Warden n. Jones 152 Ware d. Bgmont (Lord) 165 V. Horwood 360 V. Polhill 405, 570 Waring v. Coventry 201 V. Hotham 261, 263 Warington ». Wheatstone 345 Warner v. Baynes 278, 279 V. Jacob 418 Warren v. Eudall 455 Warrick v. Warrick 167 Warwick ». Warwick 73 Wasdale, In re; Brittin v. Part- ridge 437 Wason J). Wareing 65 Wasserberg, In re; Union Bank of London v. Wasserberg 256 Waterhouse ». Stansfield 251 Waters v. Mynn 420 V. Taylor 290 V. Waters 619' Wakins, Ex p 3*13 Watkins v. Cheek 472 V. Williams 279 Watkyns v. Watkyns 594 Watney v. Trist 285, 286 V. Wells 287 Watson V. Gass 278 V. Marston 71 V. Mid Wales Ely 605 u. Northumberland (Duke) 275 Watts V. Girdlestone 529 Way's Trusts, In re 436 Weale v. OUive 838 Weall, In re; Andrews v. Weall 532 V. Eice 458 Wearmouth Crown Glass Co. , In re 197 Webb, In re 573 ; Lambert ». Still 222 V. England 194 — - V. Grace 118 V. Hewitt 138 V. Jones 525 V. Shaftesbury (Earl) 456 V. (Lord) 570 Webber v. Webber 255 Webster v. Bosanquet 552 V. Cecil 315 Wedderburn v. Wedderburn 134, 529 Wedgwood v. Adams 316 Weekes' Settlement, In re 46 Weekes v. Slake ..• 360 Wekett V. Eaby 300 Welby V. Eutland (Duke) 361 D. Welby 454, 456 Welch, In re 569 Wellbeloved v. Jones 500 PAGE Weller v. Smeaton 361, 362 Wellesley's Case 567 Wellesley v. Beaufort (Duke) 560, 562 V. Wellesley 557, 560, 562, 564 Wells V. Poster 434 V. Eow 246, 525 Welsbaoh Incandescent Gaslight Co. •». New Sunlight Incandes- cent Co 683 Wenham, In re ; Hunt ». Wen- ham 233 Wentworth v. Lloyd 631 Wesley v. Walker 340 West, In re; George v. Grose ... 524 West V. Erissey 405 V. Knight 480- V. Eeid 158, 421 u. Sackville (Lord) 686 V. Shuttleworth 489 V. Skip 289, 290 V. Williams 171, 172 Westmeath (Marq.) v. Salisbury (Marq.) 120 Westmeath v. Westmeath 595 Wethered «. Wethered 110, 144, 422 Whale V. Booth 250 Whaley v. Bagenal 321 V. Dawson 277 Wheeler v. D'Esterre 329 V. Home 179, 180 V. Le Marchant 631, 632 Whelan v. Palmer 106 Wheldale v. Partridge 337, 512 Whieldon v. Spode 246 Whincup ». Hughes 195 Whistler v. Webster 456, 457 Whitaker v. Bush 603, 607, 609 V. Wright 284 Whitbread v. Brockhurst 319 Whitbread & Co. v. Watt 319, 335, 514 Whitchurch v. Bevis 325 White, Ex p 497 , In re; White v. White .... 451 V. Cordwell 609 V. Damon 140 V. Hall 543 V. Lincoln (Lady) 192 V. Nutt 49 V. Parsither 423 V. Peterborough (Bp.) 351, 354 t). Warner 553 0. White 201, 477 V. Williams 182 White's Trusts, In re 497 Whitehorne Bros. v. Davison 82 Whitehouse v. Partridge 622 & Co., In re 602 Whiteley and Eoberts, In re ... 615 Whitfield, Ex p 558 V. Bewitt 217, 218 TABLE OF CASES. PAGE Whitfield 0. Clemment 454 V. Pausset 40, 41, 42 Whiting's Settlement, In re; Whiting V. De Eietzen 118 Whiting v. Burke 204 Whitmore v. Oxborrow 232 Whittingham v. Murdy 100 Whitwell V. Arthur 287 Whitwood Chemical Co. v. Hard- man 392 Whorewood v. Whorewood 593 Widmore v. Woodruffe 479 Wier K. Tucker 224 Wigsell V. Wigaell 200 Wigram ». Buckley 166 Wilde V. Porte 319, 320 Wilder v. Piggott 457 Wilkes ». Groom 532 V. Spooner 168 — — V. Steward 534 V. Wilkes 595 Wilkins v. Aiken 380, 382, 384 Wilkinson v. Dent 455 V. Henderson 289 v. Jonghim 78 Willan o. Willan 55, 294 Wiloock ». Terrell 434 Willesford v. Watson 617 Williams, Ex p 527 V. Bayley 124, 125, 295, 297, 298 V. Cooke 221 V. Everett 435 B. Plight 42 B. Games 281 V. Kershaw 486 V. Lambe 266 V. Neville 317 V. Nixon 538 V. Owen 420 V. Preston 105 V. Prince of Wales Life • Insce. Co 386 V. Protheroe 439 V. Quelrada Ely. Land and Copper Co 632 V. Eawlinson 188 ». Scott 135 V. Thomas 266 - V. Williams 42, 278 Williamson v. Barbour 222 V. Gihon 109, 110 V. Hine 133 Willis V. Jernegan 223, 224 Willmott V. Barber 156 Willoughby v. Willoughby ...411, 633 Wills V. Slade 279, 280 • V. Stradling 321 Wilson, Ex p 138, 419 V. Church 633 V. Pielding 242 V. Hiscox 401 PAGE Wilson V. Johnstone 46, 195 ». Townshend (Lord) ...456, 457 V. Northampton and Ban- bury Ely 309 V. O'Leary 469 V. Eay 154 V. Thornbury 457 V. Turner 568 V. W. Hartlepool Ely. ...319, 320 V. Williams 314 v_ Wilson 74, 595 Winch V. Winchester 71 Winchester (Bp.) v. Knight 217, 218 D. Paine 166 Wind V. Jekyll 230, 254 Windhill Local Bd. u. Vint 121 Wing V. Harvey 556 Winged v. Lefebury 335 Winter v. Anson (Lord) 519 Wiseman v. Westland 166 Withy V. Cottle 807, 340 Wolmerhausen ». GuUick 207 Wolterbeek v. Barrow 70 Wolverhampton (Corp.) v. Em- mons 305, 309 Wood, In re; Att.-Gen. v. Ander- son 505 ; Ward v. Wood 454 V. Barker 154 V. Boosey 383 V. Conway (Corp.) 377 V. Dixie 150 V. Downes 129 V. Griffith 439, 616, 617 V. Midgley 139, 318, 325 V. Eowcliffe 302 V. Eowe 354 V. Wood 581 Woodgate v. Pield 232 Woodhouse v. Shepley 113 Woodward, Ex p 565 u. Goulstone 48 V. Woodward 576 Woolaston v. King 455 Wooldridge ». Norris ... 138, 209, 309 Woollam V. Hearn 68, 70, 71, 324, 326 WooUey v. Clarke 249 V. Colman 425 Woolridge v. Woolridge 451, 457 Worrall v. Jacob 52, 595 V. Martar 520 Worsley v. Scarborough (Earl) 167 Worthing (Corp.) v. Heather ... 501 Worthington c. Abbott 270 V. Evans 119 V. Morgan 518, 519 Wortley v. Birkhead 170, 171 Wotherspoon v. Currie 387 Wray v. Steele 509 V. Wray 288, 510 TABLE OF CASES. XXXVll PAGE Wren v. Bradley 120 Wright V. Atkyna 448 V. Bell 307 V. Black 232 V. Cadogan 577, 583 V. Carter 128, 129 «. Cartwright 356 V. GofE 52, 66, 69 V. Maidstone (Lord) 43, 44 V. Morley 210, 212, 593, 594 V. Nutt 270 V. Redgrave 368 V. Simpson 138, 270 V. Snowe 88 V. Ward 345 V. Wright 422 Wrightson v. Hudson 165, 166 Wrixdon c. Vige 201 Wyatt V. Barnard 382 B. BarWell 162, 165 Wyllie V. Pollen 171 PAQE Wynn o. Morgan 330 V. Newborough (Lord) .... 353 Wynne, In re 573 XiMENBS V. Prance 370 Yates v. Cousins 195 V. Hambley 215 Yeatman v. Yeatman 173 York (Mayor) v. Pilkington 261, 360, 361 Youatt V. Winyard 389 Young V. Bank of Bengal 603 V. Keighley 527 0. Peachey 325 V. Walter 614, 616 Younge, Ex p 324 Youngs, In re; Doggett c. Eevett 539 ZoucH «. Parsons 100 E.J. COMMENTARIES ON EQUITY JURISPHUDENCE. CHAPTER I. THE TEDE NATURE AND CHABACTEE OP EQUITY JURISPRUDENCE. § 1. In treating of the subject of equity, it is material to distinguish the various senses in which that word is used. For it cannot be dis- guised, that an imperfect notion of what, in England, constitutes equity jurisprudence, is not only common among those who are not bred to the profession, but that it has often led to mistakes and con- fusion in professional treatises on the subject. In the most general sense, we are aecustorried to call that equity, which, in human trans- actions, is founded in natural justice, in honesty and right, and which properly arises ex sequo et bono. In this sense it answers precisely to the definition of justice, or natural law, as given by Justinian in the Pandects. " .Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Jus pluribus modis dicitur. Uno modo, cum id quod semper aequum et bonum, jus dicitur; ut est jus naturale. Juris prsecepta sunt hsec; honeste vivere, alterum non laedere, suum cuique tribuere" (a). And the word jus is used in the same sense in the Roman law, when it is declared, that jus est ars boni et sequi (b), where it means, what we are accustomed to call, jurisprudence (c). § 2. Now, it would be a great mistake to suppose that equity, as administered in England, embraced a jurisdiction so wide and exten- (a) Dig. Lib. 1, tit. 1, ff 10, 11. (6) Dig. Lib. 1, tit. 1, f. 1. (c) Grotiua, after referring to the Greek word, used to signify equity, says, " Latinis autem sequi prudentia vertitur, quae se ita ad aequitatem habet, ut juris- prudentia ad justitiam." Grotius de jEquitate, ch. 1, § 4. This distinction is more refined than solid, as the citation in the text shows. See also Taylor's Elements of the Civil Law, pp. 90 to 98. Cicero, Topic. § 2; II. ad Heren. 13; III. ad Keren. 2. Bracton has referred to the various senses in which jus is used. Item (says he) jus quandoque ponitur pro jure naturali, quod semper bonum et squum est; quandoque pro jure civili tantum ; quandoque pro jure praetorio tantum ; quandoque pro eo E.J. • 1 2 EQUITY JURISPRUDEXCE. [CH. I. sive, as that which arises from the principles of natural justice above stated. Probably the jurisprudence of no civilized nation ever at- tempted so wide a range of duties for any of its judicial tribunals. Even the Eoman law, which has been justly thought to deal to a vast extent in matters ex asquo et bono, never affected so bold a design (d). On the contrary, it left many matters of natural justice wholly unpro- vided for, from the difficulty of framing any general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, and kiMness, or even to positive engagements of parties, where they are not founded in what constitutes a meritorious con- sideration. Thus, it is well known that in the Eoman law, as well as in the common law, there are many pacts, or promises of parties (nude pacts), which produce no legal obligation, capable of enforcement in foro externa ; but which are left to be disposed of in foro conscientise only (e). " Cum nulla subest causa propter conven- tionem, hie constat non posse constitui obligationem. Igitur nuda pactio obligationem non parit " (/). And again: " Qui autem promisit sine causa, condicere quantitatem non potest, quam non debet, sed ipsam obligationem " (g). And hence the settled distinction, in that law, between natural obligations, upon which no action lay, but which were merely binding in conscience, and civil obligations, which gave origin to actions (h). The latter were sometimes called just, because of their perfect obligation in a civil sense ; the former merely equitable, because of their imperfect obligation. " Et justum appellatur " (says Wolfius) ' ' quicquid fit secundum jus perfectum alterius ; sequum vero quod secundum imperfectum " (f). Cicero has alluded to the double sense of the word equity in this very connection. " .^Equitatis " (says he) " autem vis est duplex; cujus altera directi, et veri, et justi, ut dicitur, sequi et boni ratione defenditur; altera ad vicissitudinem referendse gratise pertinet; quod in beneficio gratia, in injuria ultio nominatur " (fc). It is scarcely necessary to add, that it is not in this latter sense, any more than in the broad and general sense above stated, which Ayliffe has, with great propriety, denominated Natural Equity, because it depends on and is supported by natural reason, that equity is spoken of as a branch of English jurisprudence. The tantum, quod corapetit ex sententia. Bracton, Lib. 1, ch. 4, p. 3. See Dr. Taylor's definition of lex and jus. Elem. Civ. Law, pp. 147, 148; ibid. pp. 40 to 43, 55, 56, 91 and 178. id) SeeHeinecc. Hist. Edit. L. 1, ch. 6; De Edictis Prffitorum, § 7, 8, 9, 10, 11, 12 ; ibid. § 18, 21 to 30. (e) Ayliffe, Pand. B. 4, tit. 2, pp. 424, 425 ; 1 Domat, Civ. Law, B. 1, tit. 1, § 5, art. 1, 6, 9, 13. (/) Dig. Lib. 2, tit. 14, f. 7, § 4. (g) Dig. Lib. 12, tit. 7, f. 1. (h) Ayliffe, Pand. B. 4, tit. 1, pp. 420, 421. (j) Wolff. Instit. Jur. Nat. et Gent. P. 1, ch. 3, § 83. (k) Cic. Orat. Part. § 37. § 2 4.] NATURE OF EQUITY. 3 latter falls appropriately under the head of Civil Equity, as defined by the same author, being deduced from and governed by such civil maxims as are adopted by any particular State or community (i!). § 3. But there is a more limited sense in which the term is often used, and which has the sanction of jurists in ancient, as well as in modem times, and belongs to the language of common life, as well as to that of juridicial discussions. The sense, here alluded to, is that in which it is used in contradistinction to strict law, or striatum et summum jus. Thus, Aristotle has defined the very nature of equity to be the correction of the law, wherein it is defective by reason of its universality (m). The same sense is repeatedly recognised in the Pandects. " In omnibus quidem, maxime tamen in jure, eequitas spectanda sit. Quotiens sequitas, desiderii naturalis ratio, aut dubi- tatio juris moratur, justis decretis res temperanda est. Placuit in omnibus rebus prsBcipuam esse justitise sequitatisque, quam stricti juris rationem " (re). Grotius and Puffendorf have both adopted the definition of Aristotle ; and it has found its way, with approbation, into the treatises of most of the modern authors, who have discussed the subject (o). § 4. In the Roman jurisprudence we maj' see many traces of this doctrine, applied to the purpose of supplying the defects of the customary law, as well as to correct and measure the interpretation of the written and positive code. Domat accordingly lays it down, as a general principle of the civil law, that if any case should happen, (1) AyMe, Pand. B. 1, tit. 7, p. 37. (m) Arist. Ethic. Nicom. L. 6, ch. 14, cited 1 Wooddes. Lect. vii. p. 193; Taylor, Elem. of Civ. Law, pp. 91, 92, 93; Francis, Maxims, 3; 1 Ponbl. Eq. B. 1, § 2, p. 5, note (e). Cicero, speaking of Galba, says, that he was accustomed, " Malta pro aequitate contra jus dicere." Cic. de Oratore, Lib. 1, § 57. See also other passages cited in Taylor's Elem. of the Civ. Law, 90, 91. Bracton defines equity, as contra- distinguished from law (jtis), thus : " ^quitas autem est rerum convenientia, quae in paribus causis paria desiderat jura, et omnia bene coaequiparat ; et dicitur sequitas, quasi aequalitas." Bracton, LiS. 1, ch. 4, § 6, p. 3. (n) Dig. Lib. 50, tit. 17, ff. 85, 90; Cod. Lib. 3, tit. 1, f. 8. (o) Grotius de ^Equitate, ch. 1, § 3; Puffend. Law of Nature and Nat. B. 5, ch. 12, § 21, and Barbeyrac's note (1); 1 Black. Comm. 61; 1 'V^^ooddes, Lect. vii. p 193; Bac. de Aug. Sclent. Lib. 8, ch. 3, Aphor. 32, 34, 45. Grotius says: " Proprie vero et singulariter squitas est virtus voluntatis, eorrectrix ejus, quo lex propter universalitatem deficit." Grotius de iEquitate, ch. 1, § 2. " .^ilquum est id ipaum, quo lex corrigitur. " Ibid. Dr. Taylor has with great force paraphrased the language of Aristotle. That part of unwritten law, says he, which .is called Equity, or rh EmeiKes, is a species of justice distinct from what is written. It must happen either against the design and inclination of the law-giver, or with his consent. In the former case, for instance, when several particular facts must escape his knowledge ; in the other, when he may be apprised of them, indeed, but by reason of their variety is not willing to recite them. For, if a case admits of an infinite variety of circumstances, and a law must be made, that law must be conceived in general terms. Taylor, Elem. Civ. Law, 92. And of this infirmity in all laws, the Pandects give open testimony. " Non possunt omnes articuli aingulatim aut legibus, aut senatus consultis comprehendi ; sed cum in aliqua causa sententia eorum manifesta est, is qui jurisdictioni prsoest, ad similia procedere, atque ita jus dicere debet." Dig. L. 1, tit. 3, ff. 10, 12. 4 EQUITY JDKISPRUDENCE. [CH. I. which is not regulated by some express or written law, it should have for a law the natural principles of equity, which is the universal law, extending to every thing (p). And for this he founds himself upon certain texts in the Pandects, which present the formulary in a very imposing generality. " Hseec sequitas suggerit, etsi jure deficiamur, " is the reason given for allowing one person to restore a bank or dam in the lands of another, which may be useful to him, and not injurious to the other (g). § 5. The jurisdiction of the Prsetor doubtless had its origin in this application of equity, as contradistinguished from mere law. " Jus autem civile" (say the Pandects) "est, quod ex legibus, plebiscitis, senatus consultis, decretis principum, auctoritate prudentium venit. Jus praetorium est, quod Pra»tores introduxerunt, adjuvandi, vel sup- plendi, vel corrigendi juris civilis gratia, propter utilitatem publicam; quod et honorarium dicitur, ad honorem praetorum sic nominatum "(r). But, broad and general as this language is, we should be greatly deceived if it were to be supposed that even the Praetor's power extended to the direct overthrow or disregard of the positive law. He was bound to stand by that law in all cases to which it was justly applicable, according to the maxim of the Pandects, " Quod quidem perquam durum est; sed ita lex scripta est " (s). (p) Domat, Prel. Book, tit. 1, § 1, art. 23 See also Avliffe, Pand. B. 1, tit. 7, p. 38. (q) Dig. Lib. 39, tit. 3, f. 2, § 5. Domat cites other texts not perhaps quite so stringent ; such as Dig. Lib. 27, tit. 1, f. 13, § 7 ; ibid. Lib. 47, tit. 20, f. 7. Dr. Tay- lor has given many texts to the same purpose. Elem. Civ. Law, pp. 90, 91. There was a known distinction in the Eoman law on this subject. When a right was founded in the express words of the law, the actions grounded on it were denominated Aetiones Directae ; where they arose upon a benignant extension of the words of the law to other cases, not within the terms, but within what we should call the equity of the law, they were denominated Aetiones Utiles. Taylor, Elem. Civ. Law, 93. (r) Dig. Lib. 1, tit. 1, f. 7. " Sed et eas aetiones, quae legibus prodit^ sunt (say the Pandects) si lex justa ac necessaria sit, supplet Praetor in eo, quod legi deest." Dig. Lib. 19, tit. 5, f. 11. Heineccius, speaking of the Praetor's authority, says : His Edictis multa innovata, adjuvandi, supplendi, corrigendi juris civilis gratia, obtentuque utilitatis publicae. 1 Heinecc. Elem. Pand. P. 1, Lib. 1, § 42. {s) Dig. Lib. 40, tit. 9, f. 12, § 1. See also 3 Black. Comm. 430, 431; 1 Wood- des. Lect. vii. pp. 192 to 200. Dr. Taylor (Elem. Civ. Law, p. 214) has therefore observed that, for this reason, this branch of the Eoman law was not reckoned as part of the jus civile scriptum by Papinian, but stands in opposition to it. Ana thus, as we distinguish between common law and equity, there were with that people aetiones civiles et prsetorise, et obligationes civiles, et praetoriae. The Praetor was therefore called Gustos, non conditor juris; judicia exercere potuit; jus facere non potuit ; dicendi, non condendi juris potestatem habuit ; juvare, supplere, interpretari, mitigare jus civile potuit ; mutate vel tollere non potest. The praetorian edicts are not properly law, though they may operate like law. And Cicero, speaking of contracts bonae fidei, says, in allusion to the same jurisdiction . In his magni esse judicis statuere (praesertim cum in plerisque essent judicia contraria), quid quemque cuique prEBstare oporteret ; that is, he should decide according to equity and conscience. Cic. de Officiis, Lib. 3, cap. 17. Dr. Taylor has, in another part of his work, gone at large into equity and its various meanings in the civil law. Taylor, Elem. Civ. Law, pp. 90 to 98. § 5 — 7.] NATURE OF EQUITY. 5 § 6. But a more general way in which this sense of equity, as contradistinguished from mere law, or strictum jus, is applied, is to the interpretation and limitation of the words of positive or written laws : by construing them, not according to the letter, but according to the reason and spirit of them (t). Mr. Justice Blackstone has alluded to this sense in his Commentaries, where he says : " From this method of interpreting laws by the reason of them arises what we call equity " (m) ; and more fully in another place, where he says : " Equity, in its true and genuine meaning, is the soul and spirit of all law ; positive law is construed, and rational law is made by it. In this, equity is synonymous with justice; in that, to the true and sound interpretation of the rule " (x). § 7. In this sense equity must have a place in every rational system of jurisprudence, if not in name, at least in substance (y). It is impos- sible that any code, however minute and particular, should embrace or provide for the infinite variety of human affairs, or should furnish rules applicable to all of them. " Neque leges neque senatus consulta ita scribi possunt " (says the Digest) " ut omnes casus, qui quandoque inciderint, comprehendantur ; sed suf&cit ea, quas plerumque accideunt contineri " (z). Every system of laws must necessarily be defective; and cases must occur, to which the antecedent rules cannot be applied without injustice, or t-o which they cannot be applied at all. It is the office, therefore, of a judge to consider whether the antecedent rule does apply, or ought, according to the intention of the law-giver, to apply to a given case ; and jf there are two rules, nearly approaching to it, but of opposite tendency, which of them ought to govern it; and if there exists no rule applicable to all the circumstances, whether the party should be remediless, or whether the rule furnishing the closest analogy ought to be followed. The general words of a law may embrace all cases; and yet it may be clear, that all could not have been intentionally embraced; for if they were, the obvious objects of the legislation might or would be defeated. So, words of a doubtful (i) Plowden, Comm. pp. 465, 466. (u) 1 Black. Comm. pp. 61, 62. (x) 3 Black. Comm. p. 429. See also Taylor, Elem. Civ. Law, pp. 96, 97; Plowd. Comm. p. 465, Eeporter's note. Dr. Taylor has observed that the great difficulty is, to distinguish between that equity, which is required in all law what- soever, and which makes a very important and a very necessary branch of the jus scriptum ; and that equity, which is opposed to written and positive law, and stands in contradistinction to it. Taylor, Elem. Civ. Law, p. 90. iy) See 1 Eonbl. Equity, B. 1, § 3, p. 24, note (h); Plowden, Comm. pp. 465, 466. Lord Bacon said in his Argument on the jurisdiction of the Marches, there is no law under heaven which is not supplied with equity ; for summum jus sumraa injuria ; or as some have it, summa lex summa crux. And, therefore, all nations have equity. 4 Bac. Works, p. 274. Plowden, in his note to his Eeports, dwells much (pp. 465, 466) ■on the nature of equity in the interpretation of statutes, saying, " Eatio legis est anima legis." And it is a common maxim in the law of England, that " Apices juris non sunt jura.." Branch's Maxims, p. 12; Co. Jjitt. 304 (b). (z) Dig. Lib. 1, tit. 3, f. 10. 6 EQUITY JURISPEDDENCE. [CH. I. import may be used in a law, or words susceptible of a more enlarged, or of a more restricted meaning, or of two meanings equally appropriate (a). The question, in all such cases, must be, in what sense the words are designed to be used ; and it is the part of a judge to look to the objects of the legislature, and to give such a construction to the words, as will best further those objects. This is an exercise of the power of equitable interpretation. It is the administration of equity, as contradistinguished from a strict adherence to the mere letter of the law. Hence arises a variety of rules in interpretation of laws, according to their nature and operation, whether they are remedial, or are penal laws; whether they are restrictive of general right, or in advancement of public justice or policy; whether they are of universal application, or of a private and circumscribed intent. But this is not the place to consider the nature or application of those rules (b). § 8. It is of this equity, as correcting, mitigating, or interpreting the law, that, not only civilians, but common-law writers, are most accustomed to speak (c) ; and thus many persons are misled into the (a) It is very easy to see from what sources Jlr. Charles Butler drew his own state- ment (manifestly, as a description of English equity jurisprudence, incorrect, as Professor Park has shown), "that equity, as distinguished from law, arises from the inability of human foresight to establish any rule, which, however salutary in general, is not in some particular cases, evidently unjust and oppressive, and operates beyond or in opposition to its intent, &c. The grand reason for the interference of a court of equity is, that the imperfection of the legal remedy, in consequence of the universality of legislative provisions, may be repressed." 1 Butler's Eeminisc. 37, 38, 39; Park's Introd. Lect. 5, 6. Now, Aristotle, or Cicero, or a Eoman Prsetor, or a Continental Jurist, or a Publicist of modern Europe might have used these expressions, as a description of general equity ; but it would have given no just idea of equity, as administered under the municipal jurisprudence of England. (b) See Grotius de Jure Belli ac Pacis, Lib. 3, ch. 20, § 47, pp. 1, 2; Grotius de .^quitate, ch. 1. This paragraph is copied very closely from the article Equity, in Dr. Lieber's Encyclopaedia Americana, a licence which has not appropriated another person's labours. There will be found many excellent rules of interpretation of Laws in Euthevforth's Ins.titutes of Natural Law, B. 2, ch. 7; in Bacon's Abridgment, title Statute; in Domat on the Civil Law (Prelim. Book, tit. 1, § 21 ; and in 1 Black. Comm. Introduction, pp. 58 to 62. There are yet other senses, in which equity is used, which might be brought be- fore the reader. The various senses are elaborately collected by Oldendorpius , in his work De Jure et ^quitate Disputatio ; and he finally offers, what he deems » very exact definition of equity in its general sense. " jEquitas est judicium animi, ex vera ratione petitum, de circumstantiis rerum, ad honestatem vitae pertinentium, cum incidunt, recte discemens, quid fieri aut non fieri oporteat." This seems but another name for a system of ethics. Grotius has in one short paragraph (De .Equitate, ch. 1, § 2) brought together the different senses in a clear and exact manner. " Et ut de Eequitate primum loquamur, scire oportet, sequitatem aut Ecquum de omni interdum jure dici, ut cum jurisprudentia ars boni et aequi dicitur; interdum de jure natnrali absolute, ut cum Cicero ait, jus legibus, moribus, et aequitate constare ; alias vero de hisce rebus, quas lex non exacte definit, sed arbitrio viri boni per- mittit. Ssepe etiam de jure aliquo civili p'roprius ad jus naturale aecedente, idque respectu alterius juris, quod paulo longius recedere videtur, ut jus Prsetorium et quipdam jurisjprudentias interpretationes. Proprie vero et singulariter sequitas est virtus voluntatis, correctrix ejus, in quo lex propter universalitatem deficit." (c) Merlin, Eepertoire Bquite. Grounds and Rudim. of the Law (attributed § 8, 9.] NATURE OF EQUITY. 7 false notion, that this is the real and peculiar duty of courts of equity. St. Germain, after alluding to the general subject of equity, says: " In some eases it is necessary to leave the words of the law, and to follow that reason and justice requireth, and to that intent equity is ordained, that is to say, to temper and mitigate the rigour of the law, &a. And so it appeareth, that equity taketh not away the very right, but only that that seemeth not to be right, by the general words of the law " ((?). And then he goes on to suggest the other kind of equity, as administered in chancery, to ascertain " whether the plaintiff hath title in conscience to recover or not " (e). And, in another place, he states : ' ' Equity is a rightwiseness, that considereth all the particular circumstances of the deed, which is also tempered with the sweetness of mercy " (/). Another learned author lays down doctrines equally broad. " As summum jus " (says he) " summa est injuria-, as it cannot consider circumstances; and as this [equity] takes in all the circum- stances of the case, and judges of the whole matter according to good conscience, this shows both the use and excellence of equity above any prescribed law." Again: "Equity is that which is commonly called equal, just, and good; and is a mitigation or moderation of the common law, in some circumstances, either of the matter, person, or time; and often it dispenseth with the law itself" (g). "The matters, of which equity holdeth cognizance in its absolute power, are such as are not remediable at law ; and of them the sorts may be said to be as infinite, almost, as the different affairs conversant in human life" (h). And, he adds, that "equity is so extensive and various, that every particular case in equity may be truly said to stand upon its own particular circumstances ; and, therefore, under favour, I apprehend precedents not of that great use in equity, as some would contend; but that equity thereby may possibly be made too much a science for good conscience " (t). § 9. This description of equity differs in nothing essential from that given by Grotius and Puffendorf (k), as a definition of general equity, as contradistinguished from the equity which is recognised by the mere municipal code of a particular nation. And, indeed, it goes sometimes to Francis), pp. 3, 5, edit. 1751 ; 1 Fonbl. Equity, B. 1, ch. 1, § 2, note (e) ; 1 Wooddes. Lect. vii. pp. 192 to 200; Pothier, Pand. Lib. 1, tit. 3, art. 4, § 11 to 27. (d) Dialogue 1, ch. 16. (e) Ibid. 1, ch. 17. (/) Ibid. ch. 16. (g) Grounds and Eudim. pp. 5, 6, edit. 1751. (h) Grounds and Eudim. p. 6, edit. 1751. (i) Grounds and Eudim. pp. 5, 6, edit. 1751. Yet Francis (or whoever else was the author) is compelled to admit, that there are many cases in which there is no relief to be had, either at law or in equity itself; but the same is left to the con- science of the party, as a greater inconvenience would thence follow to the people in general. Francis, Max. p. 5. (k) Grotius de ^^quitate, ch. 1, § 3, 12; Pnffend. Elem. Juris. Univ. L. 1, § 22, 23, cited 1 Fonbl. Eq. B. 1, ch. 1, § 2, note (e), p. 6. 8 EQUITY JURISPRUDENCE. [CH. I. the full extent of embracing all things, which the law has not exactly defined, but leaves to the arbitrary description of a judge; or, in the language of Grotius, ' ' de hisoe rebus, quas lex non exacte definit, sed arbitrio viri boni permittit" (I). So that, in this view of the matter, an English court of equity would seem to be possessed of exactly the same prerogatives and powers as belonged to the Praetor's forum in the Roman law (m). § 10. Nor is this description of the equity jurisprudence of England confined to a few text-writers. It pervades a large class, and possesses the sanction of many high authorities. Lord Bacon more than once hints at it. In his Aphorisms he lays it down, ' ' Habeant similiter Curiae Praetoriae potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis " (n). And on the solemn occasion of accepting the office of Chancellor, he said : Chancery is ordained to supply the law, and not to subvert the law (o)^ Finch, in his Treatise on the Law, says, that the nature of equity is to amplify, enlarge, and add to the letter of the law (p). In the Treatise of Equity, attributed to Mr. Ballow, and deservedly held in high estimation, language exceedingly broad is held on this subject. After remarking, that there will be a necessity of having recourse to the natural principles, that what is wanting to the finite may be supplied out of that which is infinite; and that this is properly what is called equity, in opposition to strict law, he proceeds to state: " And thus in chancery, every particular ease stands upon its own circumstances; and although the common law will not decree against the general rule of law, yet chancery doth, so as the example introduce not a general mischief. Every matter, therefore, that happens inconsistent with the design of the legislator, or is contrary to natural justice, rnay find relief here. For no man can be obliged to say anything contrary to the law of nature ; and indeed no man in his senses can be presumed willing to oblige another to it" (g). § 11. The author has, indeed, qualified these propositions with the suggestion : ' ' But if the law has determined a matter with all its circumstances, equity cannot intermeddle." But, even with this qualification, the propositions are not maintainable, in the equity (I) Grotius de iEqiiifcate, ch. 1, § 2; 1 Ponbl. Equity, B. 1, ch. 1, § 2, note (c). (m) Dig. Lib. 1, f. 7. See also Heinecc. De Edict. Praetorum, Lib. 1, ch. 6, § 8 to 13; ibid. § 18 to 30; Dr. Taylor's Elem. Civ. Law, 213 to 216; ibid. 92, 93; be Lolme on Eng. Const. B. 1, ch. 11. Lord Kaims does not hesitate to say, that the powers assumed by our courts of equity are in effect the same that were assumed by the Eoman Prsetor from necessity, without any express authority. 1 Kaims, Eq. Introd. 19. (n) Bac. De Aug. Scient. Lib. 8, ch. 3, Aphor. 35, 45. (o) Bac. Speech. 4; Bac. Works, 488. (p) Finch's Law, p. 20. iq) 1 Fonbl. Eq. B. 1, ch. 1, § 3. The author of Eunomus describes the original jurisdiction of the Court of Chancery, as a court of equity, to be " the power of moderating the summum jus." Eunomus, Dial. 3 § 60. § 10 — 13.] NATURE OF EQUITY. 9 jurisprudence of England, in the general sense in which i>hey are stated. For example, the first proposition, that equity will relieve against a general rule of law, is (as has been justly observed) neither sanctioned by principle nor by authority (r). For, though it may be true that equity has, in many cases, decided differently from courts of law, yet it will be found that these cases involved circumstances to which a court of law would not advert; but which, in point of sub- stantial justice, were deserving of particular consideration ; and which a court of equity, proceeding on principles of substantial justice, felt itself bound to respect (s). § 12. Mr. Justice Blackstone has taken considerable pains to refute this doctrine. " It is said " (he remarks) " that it is the business of a court of equity, in England, to abate the rigour of the common law (t). But no such power is contended for. Hard was the case of bond creditors, whose debtor devised away his real estate ; rigorous and unjust the rule which put the devisee in a better condition than the heir; yet a court of equity had no power to interfere. Hard is the common law still subsisting, that land devised, or descending to the heir, should not be liable to simple contract debts of the ancestor or devisor, although the money was laid out in purchasing the very land ; and that the father shall never immediately succeed as heir to the real estate of the son. But a court of equity can give no relief; though, in both these instances, the artificial reason of the law, arising from feudal principles, has long since ceased" (w). And although these remarks of Mr. Justice Blackstone have now lost their force owing to the Statute against Fraudulent Devises (3 Will. & Mary, c. 14, s. 2), which rendered the devisee equally with the heir liable to the bond debts of the deceased, and the 8 & 4 Will. 4 c. 104, which made the lands of a deceased debtor liable to his simple contract debts, yet from the very fact that legislation was necessary, it appears that it was not within the province of courts of equity to relieve the hardships complained of. And (not to multiply instances) what could be more harsh, or indefensible, than was the rule of the common law% by which a husband might receive an ample fortune in personal estate, through his wife, and by his own act, or will, strip her of every farthing, and leave her a beggar? § 13. A very learned judge in equity, in one of his ablest judg- ments, has put this matter in a very strong light (x). "The law is clear " (said he), " and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great (r) Com. Dig. Chancery, 3 P. 8. (s) 1 Ponbl. Eq. B. 1, ch. 1, § 3, note (g) ; 1 Dane's Abridg. ch. 9, art. 1, § 2, 8 ; Kemp v. Pryor, 7 Ves. 249, 250. (t) Grounds and Eudim. p. 74 (Max. 105), edit. 1751. (u) 3 Black. Comm. 430. See Com. Dig. Chancery, 3 F. 8. (x) Sir Joseph Jekyll, in Cowper v. Cowper, 2 P. Wms. 753. 10 ' EQUITY JURISPRUDENCE. [CH. 1. uncertainty and confusion would ensue. And, though proceedings in equity are said to be secundum discretionem boni viri; yet when it is asked " Vir bonus est quis? " the answer is " Qui consulta patrum, qui leges juraque servat. " And, as it is said in Book's Case (5 Rep. 99 b), that discretion is a science, not to act arbitrarily, according to men's wills, and private affections; so that discretion, which is executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases, follows the law implicitly; in others, assists it, and advances the remedy ; in others, again, it relieves against the abuse, or allays the rigour of it. But in no case does it contra- dict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to the court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with " (y). § 14. The next proposition, that every matter that happens incon- sistent with the design of the legislator, or is contrary to natural justice, may find relief in equity, is equally untenable. There are many cases against natural justice, which are left wholly to the con- science of the party, and are without any redress, equitable or legal. And so far from a court of equity supplying universally the defects of positive legislation, or peculiarly carrying into effect the intent, as contradistinguished from the text of the legislature, it is governed by the same rules of interpretation as a court of law ; and is often compelled to stop where the letter of the law stops. It is the duty of every court of justice, whether of law or of equity, to consult the intention of the legislature. And, in the discharge of this duty, a court of equity is not invested with a larger or a more liberal dis- cretion than a court of law. § 15. Mr. Justice Blackstone has here again met the objection in a forcible manner. "It is said " (says he) " that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess to interpret statutes according to the true intent of the legislature. In general, all cases cannot be foreseen; or, if foreseen, cannot be expressed. Some will arise which will fall within the meaning, though not within the words of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, thus out of the letter, are often said to be within the equity of an Act of Parliament; and so, cases within the letter, are frequently out of the equity. Here, by equity, we mean nothing but the (y) Sir Thomas Clarke, in pronouncing his judgment in the case of Burgess v. Wheats (1 W. Black. 123), has adopted this very language, and given it his full approbation. See also Fry v. Porter. 1 Mod. 300 ; Grounds and Eudim. p. 65 (Max. 92), edit. 1751. § 14 17.] NATURE OF EQUITY. 11 sound interpretation of the law. . . . But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity. The con- struction must in both be the same ; or, if they differ, it is only as one court of law may happen to differ from another. Each endeavours to fix and adopt the true sense of the law in question. Neither can enlarge, diminish, or alter that sense in a single title " (z). § 16. Yet it is by no means uncommon to represent that the peculiar duty of a court of equity is to supply the defects of the common law, and next, to correct its rigour or injustice (a). Lord Kaims avows this doctrine in various places, and in language singu- larly bold. " It appears now clearly " (says he) " that a court of equity commences at the limits of the common law, and enforces benevolence, where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its general refine- ments, enforces every natural duty that is not provided for at common law " (h). And in another place he adds, a court of equity boldly under- takes " to correct or mitigate the rigour, and what, in a proper sense, may be termed the injustice of the common law " (c). And Mr. Wood- deson, without attempting to distinguish accurately between general or natural, and municipal or civil equity, asserts, that " equity is a judicial interpretation of laws, which, presupposing the legislator- to have intended what is just and right, pursues and effectuates that intention " {d). § 17. The language of judges has often been relied on for the same purpose; and, from the unqualified manner in which it is laid down, too often justifies the conclusion. Thus, Sir John Trevor (the Master of the Eolls), in his able judgment in Dudley v. Dudley (e), says: Now, equity is no part of the law, but a moral virtue, which quali- fies, moderates, and reforms the rigour, hardness, and edge of the law, and is a universal truth. It does also assist the law, where it is defective and weak in the constitution (which is the life of the law), and defends the law from crafty evasions, delusions, and mere subtleties, invented and contrived to evade and elude the common law, whereby such as have undoubted right are made remediless. And thus is the office of equity to protect and support the common law from shifts and contrivances against the justice of the law. (z) 3 Black. Comm. 431; 1 Dane, Abr. ch. 9, art. 3, § 8. (a) 1 Kaims on Equity, B. 1, p. 40. (b) 1 Kaime on Equity, Introd. p. 12. (c). 1 Kaims on Equity, Introd. p. 15. Lord Kaims' remarks are entitled to the more consideration because they seem to have received, in some measure at least, the approbation of Lord Hardwicke (Parke's Hist, of Chan. Appx. 501, 502; ibid. 333, 334) ; and also from Mr. Justice Blackstone having thought them worthy of a formal refutation in his Commentaries. 3 Black. Comm. 436. (d) 1 Wooddes. Lect. vii. p. 192. (e) Free. Ch. 241, 244; 1 Wooddes. Lect. vii. p. 192. 12 EQUITY JURISPRUDENCE. [CH. I. Equity, therefore, does not destroy the law, nor create it, but assists it." Now, however true this doctrine may be sub modo, to suppose it true in its full extent would be a grievous error. § 18. There is another suggestion, which has been often repeated; and that is, that courts of equity are not, and ought not, to be bound by precedents; and that precedents, therefore, are of little or no use there; but that every case is to be decided upon circumstances, according to the arbitration or discretion of the judge, acting according to his own notions, ex sequo et bono (/). Mr. Justice Blackstone, addressing himself to this erroneous statement, has truly said : ' ' The ■system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart-, although the reason of some of them may perhaps be liable to objection. . . . Nay, sometimes a precedent is so strictly followed, that a particular judgment, founded upon special circumstances, gives rise to a general rule " {g). And he after- wards adds: "The systems of jurisprudence in our courts of la%v and equity are now equally artificial systems, founded on the same principles of justice and positive law, but varied by different usages in the forms and mode of their proceedings " Qi). The value of prece- dents, and the importance of adhering to them, were deeply felt in ancient times, and nowhere more than in the Praetor's forum. " Con- suetudinis autem jus esse putatur id " (says Cicero) " quod, voluntate omnium, sine lege, vetustas comprobarit. In ea autem jura sunt, quasdam ipsa jam certa propter vetustatem ; quo in genere et alia sunt multa, et eorum multo maxima pars, quae Praetores edicere con- (/) See Francis, Max. pp. 5, 6; Selden, cited in 3 Black. Comm. 432, 433, 435; 1 Kaims, Eq. pp. 19, 20. (g) 3 Black Comm. 432, 433. (h) 3 Black. 434; ibid. 440, 441; 1 Kent, Comm. Lect. 21, pp. 489, 490 (2nd edition). The value and importance of precedents in chancery were much insisted upon by Lord Keeper Bridgman, in Fry v. Porter (1 Mod. 300, 307). See also 1 Wooddes. Lect. vii. pp. 200, 201, 202. Lord Hardwicke, in his letter to Lord Kaims, on the subject of equity, in answer to the question whether a court of equity ought to be governed by any general rules, said, " Some general rules there ought to be; for otherwise the great inconvenience of jus vagum et incertuin will follow. And yet the Praetor must not be so absolutely and invariably bound by them, as the judges are by the rules of the common law. For if they were so bound, the consequence would follow, which you very judiciously state, that he must sometimes pronounce decrees which would be materially unjust ; since no rule can be equally just in the application to a whole class of cases, that are far from being the same in every circumstance." (Parke's Hist, of Chancery, pp. 501, 506.) This is very loosely said; and the reason given equally applies to every general rule ; for there can be none , which will be found equally just in its application to all cases. If every change of circumstances is to change the rule in equity, there can be no general rule. Every case must stand upon its own ground. Yet courts of equity now adhere as closely to general rules as courts of law. Each expounds its rules to meet new cases ; but each is equally reluctant to depart from them upon slight inconveniences and mischiefs. See Mitford, Plead, in Eq. p. 4, note (b); 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (fe). 'The late Professor Park, of King's College (London), has made some very acute remarks on this whole subject, in his Introductory Lecture on Equity (1832). § 18, 19.] NATURE OF EQUITY. 13 suerunt " (i). And the Pandects directly recognize the same doctrine, "Est enim juris civilis species consuetudo; enimvero, diutuma con- suetude pro jure et lege, in his, quse non ex scripto descendunt observari, solet, &e. Maxime autem probatur consuetudo ex rebus judicatis " (k). § 19. If, indeed, a court of equity in England did possess the un- bounded jurisdiction which has been thus generally ascribed to it, of correcting, controlling, moderating, and ever superseding the law, and of enforcing all the rights, as well as the charities, arising from natural' law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway and the most formidable instrument of arbitrary power that could well be- devised. It would literally place the whole rights and property of the community under the arbitrary will of the judge, acting, if you please, arbitro boni judicis, and, it may be, ex aequo et bono, according to his own notions and conscience, but still acting with a despotic and sovereign authority. A court of chancery might then well deserve the spirited rebuke of Selden : "For law we have a measure, and know what to trust to. Equity is according to the conscience of himi that is chancellor; and as that is larger, or narrower, so is equity.. 'Tis all one as if they should make the standard for the measure the- chancellor's foot. What an uncertain measure would this be ! One chancellor has a long foot; another a short foot; a third an indifferent- foot. It is the same thing with the chancellor's conscience " (I). And' notions of this sort were, in former ages, when the chancery jurisdic- tion was opposed with vehement disapprobation by common lawyers, very industriously propagated by the most learned of English antiquarians, such as Spelman, Coke, Lambard, and Selden (m). "We might, indeed, under such circumstances, adopt the language of Mr. Justice Blackstone, and say : "In short, if a court of equity in England did really act, as many ingenious writers have supposed it (from theory) to do, it would rise above all law, either common or- statute, and be a most arbitrary legislator in every particular case " (n). So far, however, is this from being true, that one of the most common- maxims upon which a court of equity daily acts, is, that " equity follows the law, and seeks out and guides itself by the analogies of the- law " (o). (i) Cicero de Invent. Lib. 2, cap. 22. My attention -was first called to these- passages by a note of Lord Eedesdale. Mitford, Plead, in Eq. p. 4, note (b). See- Heineccius, De Bdictis Prstorum, Lib. 1, cap. 6, § 13, 30. (k) Pothier, Pand. Lib. 1, tit. 3, art. 6 n. 28, 29; Dig. Lib. 1, tit. 3. f. 33, f. 34. {I) Selden's Table Talk, title Equity, cited 3 Black Comm. 432, note (y). (m) See citations, 3 Black. Comm. 433; ibid. 54, 55, 440, 441. (n) 3 Black. Comm. 4.33; ibid. 440, 441, 442. De Lolme, in his -work on the Con- stitution of England, has presented a vie-w of English equity jurisprudence, far more- exact and comprehensive than many of the English text--writers on the same subject.. The -whole chapter (B. 1, c. 11) is -well -worthy of perusal. (o) Cowper v. Cowper, 2 P. Wms. 753. 14 EQUITY JURISPRUDENCE. [CH. I. § 20. What has been already said upon this subject cannot be more fitly concluded than in the words of one of the ablest judges that ever sat in equity. "There are" (said Lord Eedesdale) "certain principles, on which courts of equity act, which are very well settled. The cases which occur are various; but they are decided on fixed ■principles. Courts of equity have, in this respect, no more dis- cretionary power than courts of law. They decide new cases, as they .arise, by the principles on which former cases have been decided; and may thus illustrate, or enlarge, the operation of those principles. But the principles are as fixed and certain as the principles on which the courts of common law proceed " (p). In confirmation of these remarks it may be added, that the courts of common law are, in like manner, perpetually adding to the doctrines of the old jurisprudence; and enlarging, illustrating, and applying the maxims which were at first derived from very narrow and often obscure sources. For instance, the whole law of Insurance is scarcely a century old; and more than half of its most important principles and distinctions have been created within the last fifty years (g). § 21. In the early history of English equity jurisprudence, there rmight have been, and probably was, much to justify the suggestion, that courts of equity were bounded by no certain limits or rules ; but they acted upon principles of conscience and natural justice, without .much restraint of any sort. And as the chancellors were, for many .ages, almost universally either ecclesiastics or statesmen, neither of whom are supposed to be very scrupulous in the exercise of power; and as they exercised a delegated authority from the Crown, as the fountain of administrative justice, whose rights, prerogatives, and duties on this subject were not well defined, and whose decrees were not capable of being resisted, it would not be unnatural that they should arrogate to themselves the general attributes of royalty, and interpose in many cases, which seemed to them to require a remedy, more wide or more summary than was adopted by the common courts of law. § 22. This is the view which Mr. Justice Blackstone seems to have taken of the matter; who has observed that, in the infancy of our courts of equity, before their jurisdiction was settled, the chancellors themselves, " partly from their ignorance of the law (being frequently bishops or statesmen), partly from ambition and lust of power (encouraged by the arbitrary principles of the age they lived in), but principally from the narrow and unjust decisions of the courts of law, had arrogated to themselves such unlimited authority as hath totally been disclaimed by their successors, for now [1765] above a century past. The decrees of the court of equity were then rather in the (p) Bond V. Hopkins, 1 Sch. & Lef. 428, 429. (g) The original edition was published in 183S. § 20 — 25.] NATURE OF EQDITY. 15 nature of awards, formed on the sudden, pi)-o re natd, with more probity of intention than knowledge of the subject, founded on no settled principles, as being never designed, and therefore never used, as precedents " (r). § 23. It was fortunate, indeed, that, even in those early times, the knowledge which the ecclesiastical chancellors had acquired of general equity and justice from the civil law, enabled them to administer them with a more sound discretion than could otherwise have been done. And from the moment, when principles of decision came to be acted upon and established in chancery, the Eoman law furnished abundant principles to erect a superstructure, at once solid, con- venient, and lofty, adapted to human wants, and enriched by all the aids of human wisdom, experience, and learning. To say that later chancellors have borrowed much from these materials, is to bestow the highest praise upon their judgment, their industry, and their reverential regard to their duty. It would have been little to the commendation of such learned minds, that they had studiously dis- regarded the maxims of ancient wisdom, or had neglected to use them, from ignorance, from pride, or from indifference (s). § 24. Having dwelt thus far upon the inaccurate, or inadequate notions, which are frequently circulated, as to equity jurisprudence, it may be thought proper to give some more exact and clear state- ment of it. This may be better done by explanatory observations, than by direct definitions, which are often said in the law to be perilous and unsatisfactory. § 25. In England, equity has a restrained and qualified meaning. The remedies for the redress of wrongs, and for the enforcement of rights, were distinguished into two classes : first, those which were administered in courts of common law ; and secondly, those which were administered in courts of equity. Rights, which were recognized and protected, and wrongs, which were redressed by th* former courts, were called legal rights and legal injuries. Eights which were recog- nized and protected, and wrongs, which were redressed by the latter, courts only, were called equitable rights and equitable injuries. The former were said to be rights and wrongs at coxnmon law, and the remedies, therefore, were remedies at common law; the latter were said to be rights and wrongs in equity, and the remedies, therefore, were (r) 3 Black Comm. 433; ibid. 440, 441. (s) The whole of the late Professor Park's Lecture upon Equity Jurisprudence, delivered in King's College in Nov. 1831, on this subject, is well deserving of a perusal by every student. There is much freedom and force in his observations, and, if his life had been longer spared, he would probably have been a leader in a more masculine and extensive course of law studies by the English Bar. There are also two excellent articles on the same subject in the American Jurist, one of which, pub- lished in 1829, contains a most elaborate review and vindication of the jurisdiction of courts of equity, and the other in 1833, a forcible exposition of the prevalent errors on the subject (2 Amer. Jurist, 314 ; 10 Amer. Jurist, 227). I know not where to refer the reader to pages more full of useful comment and research. 16 EQUITY JURISPRUDENCE. [CH. I. remedies in equity. Equity jurisprudence may, therefore, properly be said to be that portion of remedial justice, which was exclusively administered by a court of equity, as contradistinguished from that portion of remedial justice, which was exclusively administered by a court of common law. § 26. The distinction between the former and the latter courts may be further illustrated by considering the different natures of the rights they were designed to recognize and protect, the different natures of the remedies which they applied, and the different natures of the forms and modes of proceeding which they adopted to accomplish their respective ends. In the courts of common law there were certain pre- scribed forms of action, to which the party must have resorted to furnish him a remedy ; and, if there were no prescribed form to reach such a case, he was remediless; for they entertained jurisdiction only of certain actions, and gave relief according to the particular exigency of such actions, and not otherwise. In those actions, a general and unqualified judgment only could be given, for the plaintiff, or for the defendant, without any adaptation of it to particular circumstances. § 27. But there are many cases, in which a simple judgment for either party, without qualifications, or conditions, or peculiar arrange- ments, will not do entire justice ex eequo et bono to either party. Some modifications of the rights of both parties may be required ; some restraints on one side, or on the other, or perhaps on both sides ; some adjustments involving reciprocal obligations, or duties ; some compensatory, or preliminary, or concurrent proceedings to fix, con- trol, or equalise rights ; some qualifications or conditions, present or future, temporary or permanent, to be annexed to the exercise of rights, or the redress of injuries. In all these cases courts of common law could not give the desired relief. They had no forms of remedy adapted to the objects. They could entertain suits only in a prescribed form, and they could give a general judgment only in the prescribed form. From their very character and organisation they were incapable .of the remedy, which the mutual rights and relative situations of the parties, under the circumstances, positively required. § 28. But courts of equity were not so restrained. Although they had prescribed forms of proceedings, the latter were flexible, and might be suited to the different postures of cases. They might adjust their decrees, so as to meet most, if not all, of these exigencies; and they might vary, qualify, restrain, and model the remedy, so as to suit it to mutual and adverse claims, controlling equities, and the real and substantial rights of all the parties. Nay, more : they could bring before them all parties interested in the subject-matter, and adjust the rights of all, however numerous; whereas, courts of common law were compelled to limit their inquiry to the very parties in the litiga- tion before them, although other persons might have the deepest interest in the event of the suit. So that one of the most striking § 29 31.] NATURE OF EQUITY. 17 and distinctive features of courts of equity was, that they could adapt their decrees to all the varieties of circumstances, which might arise, and adjust them to all the pecuhar rights of all the parties in interest; whereas courts of common law (as we have already seen) were bound down to a fixed and invariable form of judgment in general terms, altogether absolute, for the plaintiff, or for the defendant (t). § 29. Another peculiarity of courts of equity was, that they could administer remedies for rights, which rights, courts of common law did not recognize at all ; or, if they did recognize them, they left them wholly to the conscience and good-will of the parties. Thus, what are technically called Trusts, that is, estates vested in persons upon particular trusts and confidences, were wholly without any cognizance at the common law; and the abuses of such trusts and confidences were beyond the reach of any legal process. But they are cognizable in courts of equity; and hence they are called equitable estates; and an ample remedy is there given in favour of the cestuis que trust (the parties beneficially interested) for all wrongs and injuries, whether arising from negligence, or positive misconduct (m). There are also many cases (as we shall presently see) of losses and injuries by mistake, accident, and fraud ; many cases of penalties and forfeitures ; many cases of impending irreparable injuries, or meditated mischiefs; and many cases of oppressive proceedings, undue advantages and impositions, betrayals of confidence, and unconscionable bargains, in all of which courts will interfere and grant redress; but which the common law took no notice of, or silently disregarded (x). § 30. Again: the remedies in courts of equity were often very different, in their nature, mode, and degree, from those of courts of common law, even when each had a jurisdiction over the same subject-matter. Thus, a court of equity, if a contract is broken, would often compel the party specifically to perform the contract; whereas, courts of law could only give damages for the breach of it. So, courts of equity would interfere by way of injunction to prevent wrongs; whereas, courts of common law could grant redress only, when the wrong was done. § 31. The modes of seeking and granting relief in equity were also different from those of courts of common law. The latter proceed to the trial of contested facts by means of a jury; and the evidence till lately was drawn, not from the parties, but from third persons who (t) 1 Wooddes. Lect. vii. pp. 203 to 206; 3 Black. Comm. 438. Much of this paragraph has been abstracted from Dr. Lieber's Encyclopedia Americana, article Equity. The late Professor Park, of King's College, London, in his Introductory Lecture on Equity (1831, p. 15), has said, " The editors of the Encyclopedia Americana have stated the real case, with regard to what we call courts of equity, much more accurately than I can find it stated in any English Law Books"; and he thus admits the propriety of the exposition contained in the text. (u) 3,Black. Comm. 439. (x) Ibid. 484, 435, 438, 439. E.J. 2 18 EQUITY JUEISPEUDENCE. [CH. I. were disinterested witnesses. But courts of equity tried causes without a jury; and they addressed themselves to the conscience of the defendant, and required him to answer upon his oath the matters of fact stated in the bill, if they were within his- knowledge; and he was compellable to give a full account of all such facts, with all their circumstances, without evasion, or equivocation; and the testimony of other witnesses also might be taken to confirm, or to refute, the facts so alleged. Indeed, every bill in equity may be said to have been, in some sense, a bill of discovery, since it asked for the personal oath of the defendant, to purge himself in regard to the transactions stated in the bill. It may readily be perceived, how very important this process of discovery may be, when we consider how great the mass of human transactions is, in which there are no other witnesses, or persons, having knowledge thereof, except the parties themselves. § 32. Mr. Justice Blackstone has, in a few words, given an outline of some of the more important powers and peculiar duties of courts of equity. He says, that they are established " to detect latent frauds, and concealments, which the process of courts of law is not adapted to reach ; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law ; to deliver from such dangers as are owing to mis- fortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law " (y). But the general account of Lord Eedesdale (which he admits, however, to be imperfect, and in some respects inaccurate), is far more satis- factory, as a definite enumeration. " The jurisdiction of a court of equity" (says he) (z), " when it assumes a power of decision, is to be exercised, ' (1) where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a' complete remedy, or their modes of pro- ceeding are inadequate to the purpose; (2) where the courts of ordinary jurisdiction are made instruments of injustice ; (3) where the principles of law, by which the ordinary courts are guided, give no right, but upon the principles of universal justice, the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent. And it may also be collected, that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction; (4) to remove impedi- ments to the fair decision of a question in other courts; (5) to provide for the safety of property in dispute, pending a litigation, (i;) 1 Black. Comm. 92. (z) Mitford, PI. Eq. by Jeremy, pp. Ill, 112. See also ibid. pp. 4, 5. Dr. Dane, in his Abridgment and Digest, ch. 1, art. 7, § 33 to 51 (1 Dane, Abrid. 101 to 197), has given a summary of the differences between equity jurisdiction and legal juris- diction in regard to contracts, which may be read with utility. § 32, 33.] NATURE OF EQUITY. 19 and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law entrusted, or by persons having immediate but partial interest; (6) to restrain the assertion of doubtful rights in a manner productive of irreparable damage; (7) to prevent injury to a third person by the doubtful title of others; and (8) to put a bound to vexatious and oppressive litigation, an,d to prevent multiplicity of suits. And further, that courts of equity, without pronouncing any judgment, which may affect the rights of parties, extend their jurisdiction; (9) to compel a discovery, or obtain evidence, which may assist the decision of other courts; and (10) to preserve testimony, when in danger of being lost, before the matter, to which it relates, can be made the subject of judicial investigation." § 33. Perhaps the most general, if not the most precise, descrip- tion of a court of. equity, .is, that it had jurisdiction in cases of rights, recognised and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy could be not had in the courts of common law (a). The remedy must have been plain ; for if it be doubt- ful and obscure at law, equity would assert a jurisdiction (fa). It must have been adequate ; for, if at law it fell short of what the party was entitled to, that founded a jurisdiction in equity (c). And it must have been complete; that is, it must have attained the full end and justice of the case. It must have reached the whole mischief, and secured the whole right of the party in a perfect manner, at the present time, and in future ; otherwise, equity would interfere and give such relief and aid as the exigency of the particular case might require (d). The jurisdic- (a) Cooper, Eq. PI. 128, 139; Mitford, PI. Eq. by Jeremy, 112, 123. (b) Southampton Dock Co. v. Southampton Board, L. E. 11 Eq. 254. (c) In the early days of English jurisprudence, subjects could sue each other in the county and hundred courts only. The King's Bench, Common Pleas, and Exchequer Courts were exclusively employed in the king's business with his subjects. The king also administered many matters of justice between his subjects in his council. His chancellor was the secretary of the council, and to him the petitions of the subject for redress came in the first instance. The chancellor examined the petitions, and referred the matter of the petitions to the King's Bench, Common Pleas, or Exchequer, according to the nature of the business. In cases where no proper redress could be had in any of those courts, the chancellor retained the petition in his own hands, and the king, or the chancellor, gave such relief as was judged proper. Hence arose the custom of inserting, in petitions to the king or his chancellor, the allegation that the petitioner had no complete and adequate remedy in the ordinary courts of law. See Bispham, Prin. of Eq. pp. 6-9. Thus the inadequacy and incompleteness of all legal remedy underlie the whole system of equity jurisprudence. But gradually the jurisdiction of the chancellor in giving relief where there was no adequate remedy at law became settled; and there grew up certain great heads of equity jurisdiction, and courts of equity took jurisdiction rather because they had jurisdiction in certain matters, than because there was no adequate and complete remedy at law in the particular case. Thus the jurisdiction of a court of equity at the present day in England is determined, not by the question whether there is an adequate remedy at law, but whether it has been, the practice of the chancellor to take jurisdiction in similar matters. (d) See Dr. Lieber's Encyc. Americana, art. Equity; Mitford, Eq. Plead, by Jeremy, 111, 112, 117, 123. 20 EQUITY JURISPHUDBNCE. [CH. I. tion of a court of equity was, therefore, sometimes concurrent with the jurisdiction of a court of law; it was sometimes exclusive of it; and it was sometimes auxiliary to it. § 34. The author in the preceding paragraphs had led up to the discussion of the jurisdiction exercised by the Lord Chancellor, and in the concluding paragraphs expressed his approval of the divided juris- dictions of the common law courts and the court of chancery. There had bjsen small attempts at fusion into one court which should give to suitors the actual relief to which they were entitled according to the facts proved, either by cumulation of remedies, or by allowing matters to be raised by way of defence, or by awarding one of two alternative measures of relief. Thus the 8 & 9 Will. III., c. 11 (e); 4 & 5 Anne c. 3 (/); and 7 Geo. II., c. 20, empowered the common law courts, in proceedings on bonds, to restrict the rights of the plaintiff within the limits laid down in courts of equity. Conversely the court of chancery was empowered by the Court of Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27) to award damages in cases where it exercised concurrent jurisdiction, instead of dismissing the bill, without prejudice to the right of the plaintiff to maintain proceedings at law (g). By the Judicature Act, 1873 (36 & 87 Vict. c. 66) one court adminis- tering law and equity was constituted. Still a clear understanding of the principles upon which the courts of chancery or of the common law acted is essential, for as has been said, the statute is not concerned with rights but with procedure. Accordingly, where the plaintiff is entitled to one of two alternative remedies, the relief granted will be that to which he would have been entitled upon the facts proved, and may in the circumstances have been lost (h). It may be added that the author limited his treatise to equity as administered in the court of chancery. There had been an equitable jurisdiction exercised by the court of exchequer, a jurisdiction transferred to the second Vice- Chancellor by statute 5 Vict. c. 5. (e) Tuther v. Caralampi, 21 Q. B. D. 414. {/) Gerard v. Clowes, [1892] 2 Q. B. 1. (3) Ferguson v. Wilson, L. E. 2 Ch. 77. {h) Tamplin v. James, 15 Ch. D. 215; Olley v. Fisher, 34 Ch. D. 367; Lavery v Pursell, 39 Ch. D. 608; General Accident Assurance Co. v. Noel, [1902] 1 K. B. 377, § 34 — 39.] ORIGIN AND HISTORY. 21 CHAPTER II. THE ORIGIN AND HISTORY OF EQUITY JURISPRUDENCE. § 38. Having thus ascertained what is the true nature and character of Equity Jurisprudence, as it is administered in countries governed by the common law, it seemed proper, before proceeding to the con- sideration of the particulars of that jurisdiction, to take a brief review of its origin and progress. It is not intended here to epeak of the common law jurisdiction of the Court of Chancery, 'or of any of its specially delegated jurisdiction in exercising the prerogatives of the Crown, as in cases of infancy and lunacy; or of its statutable jurisdic- tion in cases of bankruptcy (a). The inquiry will mainly relate to its equitable, or, as it is sometimes called, its extiraordinary, jurisdic- tion (b). § 39. The origin of the Court of Chancery is involved in the same obscurity, which attends the investigation of many other questions, of high antiquity, relative to the common law (c). The administration of justice in England was originally confided to the Aula- Regis, or great Court or Council of the King, as the Supreme Court of Judicature, which, in those early times, undoubtedly administered equal justice, according to the rules of both law and equity, or of either, as the case might chance to require (d). When that court was broken into pieces, and its principal jurisdiction distributed among various courts, the Common Pleas, the King's Bench, and the Exchequer, each received a certain portion, and the Court of Chancery also obtained a portion (e). But, at that period, the idea of a court of equity, as contradistinguished from a court of law, does not seem to have sub- sisted in the original plan of partition, or to have been in the (a) See Com. Dig. Chancery, C. 1; 1 Mad. Ch. Pr. 262; 2 Mad. Ch. Pr. 447; ibid. 565; 3 Black. Comm. 426, 427, 428. (6) 3 Black. Comm. 50; Com. Dig. Chancery, C. 2; 4 Inst. 79; 2 Inst. 552. (c) Mitford, PL Equity, 1; Com. Dig. Chancery, A. 1; 4 Inst. 79; 1 Wooddes. Lect. vi. (d) 3 Black. Comm. 50; 1 Beeves, Hist. 62, 63. (e) 3 Black. Comm. 50; Com. Dig. Chancery, A. 1, 2, 3; 1 Collect, jurid. 27 to 30; Parke, Hist. Chan. 16, 17, 28, 56; 1 Eq. Abridg. 129; Courts, B. note (a); 1 Wooddes. Lect. vi. pp. 174, 175; Gilb. For. Roman. 14; 1 Reeves, Hist, 59, 60, 63; Bac. Abridg. Court of Chancery, C. 22 EQUITY JUEISPRUDENCE. [CH. II. contemplation of the sages of the day (/). Certain it is, that among the earliest writers of the common law, such as Bracton, Glanville, Britton, and Fleta, there is not a syllable to be found relating to the equitable jurisdiction of the Court of Chancery {g). § 39a. The author, in subsequent paragraphs, discussed at length the conflicting views of which Lord Coke 's is perhaps the most virulent and the most inaccurate (h), respecting the antiquity of the jurisdic- tion. The Statute' of Westminster the Second (13 Ed. 1, c. 24) had imposed upon the clerks in chancery the duty of framing writs to meet cases to which the older forms were inapplicable. It was one thing to frame the writs, but a totally different state of affairs arose when the actions instituted by these writs came before judges who were not bound to recognise the validity of the process. At some date the political head of the clerks in chancery intervened, sometimes with the approval of the common law judges (i), sometimes in antagonism to them (fc). Lord Coke asserted that the jurisdiction arose in the time of Henry IV., and was concerned with feoffments to uses (I), or what would now be cabled the administration of trusts. But in 41 El., Lord EUesmere produced a precedent in the time of Eichard II., of a "decree en chancery per I'advice des judges," granting an injunction to restrain waste {m). And there seems no reason to doubt that a decree for the specific performance of an agreement was granted in the same reign (n). § 46. If confirmation were needed to establish the fact that the jurisdiction of chancery was established, and in full operation during the reign of Eichard II., it is to be found in the recitals contained in the Eemonstrances, and other proceedings of Parliament. At this period the extensive use or abuse of the powers of chancery had become an object of jealousy with Parliament; and various efforts were made to restrain and limit its authority. But the Crown steadily supported it (o). And the invention of the writ of subpoena by John Waltham, Bishop of Salisbury, who was Keeper of the Eolls, about the 5th of Eichard II., gave great efficiency, if not expansion, to the jurisdic- tion (p). In the 13th of Eichard II., the Commons prayed, that no party might be required to answer before the chancellor, or the council of the king, for any matter where a remedy is given by the (/) 3 Black Comm. 50; The Legal Judic. in Chanc. stated (1727), ch. 2, p. 24. (g) 3 Black. Comm. 50; Parke, Hist. Chan. 25; 4 Inst. 82; 1 Eeeves, Hist. 61; 2 Eeeves, Hist. 250, 261. (h) 2 Inst. 552. (t) Anon. F. Moo. 544, pi. 748. (k) Eoper's Life of Sir T. More, p. 25, ed. T. Hearne. (l) 2 Inst. 552. (m) Anon. P. Moo. 544, pi. 748. (n) Fry, Spec. Perfce. § 34. (o) 3 Parke, Hist. Chan. 89 to 44. (p) 3 Eeeves, Hist. 192 tb 194; id. 274, 379, 380, 381; 3 Black. Comm. 52; Bac. Abr. Court of Chancery, C. § 39a-. — 47.] ORIGIN and history. . 23 coininon law, unless it be by writ of scire facias in the county where it is found, by the common law. To which the king answered, that he would preserve his royalty, as his progenitors had done before him (g). And the only redress granted was by stat. 17 Eich. II. ch. 6, by which it was enacted, that the chancellor should have power to award damages to the defendant, in case the suggestions of the bill were untrue, according to his discretion (r). The struggles upon this subject were maintained in the subsequent reigns of Henry IV. and V. But the Crown resolutely resisted all appeals against the jurisdiction; and finally, in the time of Edward IV., the process by bill and subpoena had become the daily practice of the court (s). § 47. Considerable new light has been thrown upon the subject of the origin and antiquity of the equitable jurisdiction of the Court of Chancery, by the recent publication of the labours of the Commis- sioners on the Public Eecords. Until that period, the notion was very common (which was promulgated by Lord Ellesmere) that there were no petitions of the chancery remaining in the office of record, before the 15th year of the reign of Henry VI. But it now appears, that many hundreds have been lately found among the records of the Tower for nearly fifty years antecedent to the period mentioned by Lord Ellesmere, and commencing about the time of the passage of the statute of 17 Rich. II. ch. 6 (<). But there is much reason to believe, that, upon suitable researches, many petitions or bills, addressed to the chancellor, will be found of a similar character during the reigns of Edward I., Edward II., Edward III. (u). (g) Parke, Hist. Chan. 41 ; 4 Inst. 82. (r) Parke, Hist. Chan. 41, 42; 3 Black. Comm. 52; 4 Inst. 82, 83; 2 Eeeves, Hist. 194. (s) 3 Black. Comm. 53; Parkes, Hist. Chan. 45 to 57 ; 3 Eeeves, Hist. 198, 194, 274, 379, 380. (t) 1 Cooper, Pub. Eec. 355. I extract this statement from the preface to the Calendars of the Proceedings in Chancery, &o., published by the Eecord Commis- sioners in 1827. That preface is signed by- Mr. Justice Bayley, sub-commissioner, but was in fact drawn up by Mr. Lysons, more than ten years before. Mr. Cooper, in his very valuable account of the Public Eecords, has published this preface verbatim; and has also extracted a letter of Mr. Lysons, written on the same subject in 1816. The preface and letter seem almost identical in language. 1 Cooper, Pub. Reo. ch. 18, p. 354; id. 384, note (b) ; id. 455 to 458. In the English Quarterly Jurist for January 1828 there will be found, in a review of these Calendars, a very succinct but interesting account of the contents of the early Chancery Cases, printed by the Eecord Commissioners. («) Mr. Cooper says that he " has made some inquiries, which induce him to think that there still exist among the records at the Tower many petitions, or bills, addressed to the chancellor, during the reigns of Edw. I., Edw. II., and Edw. III., similar to those addressed to that judge during the reign of Eichard II., selections from which have been printed. Upon a very slight research, several documents of this description are stated to have been discovered; but only one of them has been seen by the compiler. It is dated the 38th year of Edward III." 1 Cooper, Pub. Eec. Addenda, pp. 454, 455. Mr. Barton says that, so early as the reign of Edward I., the chancellor began to exercise an original and independent jurisdiction, as a court of equity, in contradistinction to a court of law. Barton on Eq. Pr. Introd. p. 7. 24 EQUITY JURISPRUDENCE. [CH. II. § 48. From the proceedings, which have been published by the Eecord Commissioners, it appears that the chief business of the Court of Chancery in those early times did not arise from the introduction of uses of land, according to the opinion of most writers on the subject. Very few instances of applications to the chancellor on such grounds occur among the proceedings of the chancery during the first four or five reigns after the equitable jurisdiction of the court seems to have been fully established. Most of these ancient petitions appear to have been presented to consequence of assaults, and trespasses, and a variety of outrages, which were cognizable at common law ; but for which the party complaining was unable to obtain redress, in consequence of the maintenance and protection afforded to his adversary by some power- ful baron, or by the sheriff, or by some officer of the county in which they occurred (x). § 49. If this be a true account of the earliest known exercises of equitable jurisdiction, it establishes the point that it was principally applied to remedy defects in the common- law proceedings; and, therefore, that equity jurisdiction was entertained upon the same ground which constituted the principal reason of its interference ; namely, that a wrong was done, for which there was no plain, adequate, and complete remedy in the courts of common law (y). And in this way great strength is added to the opiaions of Lord Hale and Lord Hardwicke, that its jurisdiction was in reality the residuum of that of the Commune Concilium or Aula Regis, not conferred on other courts, and necessarily exercisable by the Crown, as a part of its duty and prerogative to administer justice and equity (a). The introduction of uses or trusts at a later period may have given new activity and extended operation to the jurisdiction of the court; but it did not found it. The redress given by the chancellor in such cases was merely a new application of the old principles of the court; since there was no remedy at law to enforce the observance of such uses or trusts (a). (x) This passage is a literal transcript from the preface to the Calendars in Chancery ; and it is fully borne out by the examples of those bills and petitions given at large in the same work. Mr. Cooper, in his own work on the Public Eecords, has given an abstract, or marginal note, of all the examples thus given, from the reign of Richard II. to the reign of Richard III., amounting in number to more than one hundred. 1 Cooper, Pub. Rec. 359, 373; id. 377 to 385. As we proceed from the reign of Richard II. and advance to modem times, the cases become of a more mixed character, and approach to those now entertained in chancery. iy) See Treatise on Subpoena, ch. 2; Harg. Tjaw Tracts, pp. 333, 334. (z) See Eunomus, Dial. 3, § 60; 1 Eq. Abrid. Courts, B. (o) ; Parkes, Hist. Chan. App. pp. 502, 603. (a) See 3 Black. Comm. 52; 3 Reeves, Hist. 379, 381; Eunomus, Dial. 3, § 60; Parke, Hist. Chan. 28 to 31. The view which is here taken of the subject is con- firmed by the remarks of the commissioners under the Chancery Commission in the 50th George III., whose report was afterwards published by parliament in 1826. The passage to which allusion is made is as follows : " The proceedings in the courts of common law are simple, and generally founded in certain writs of great § 48 51.] ORIGIN AND HISTORY. 25 § 50. From this slight review of the origin and progress of equitable jurisdiction in England, it cannot escape observation how naturally it grew up, in the same manner, and under the same circumstances, as the equitable jurisdiction of the Praetor at Eome. Each of them arose from the necessity of the thing in the actual administration of justice, and from the deficiencies of the positive law (the lex scripia), or from the inadequacy of the remedies in the prescribed forms to meet the full exigency of the particular case. It was not an usurpation for the purpose, of acquiring and exercising power ; but a beneficial inter- position, to correct gross injustice, and to redress aggravated and intolerable grievances. § 51. But, be the origin of the equity jurisdiction of the Court of Chancery what it may, from the time of the reign of Henry VI. it constantly grew in importance (5) ; and, in the reign of Henry VIII. it expanded into a broad and almost boundless jurisdiction under the fostering care and ambitious wisdom and love of power of Cardinal Wolsey (c). Yet (Mr. Eeeves observes), after all, notwithstanding the complaints of the cardinal's administration of justice, he has the repu- tation of having acted with great ability in the office of chancellor, which lay heavier upon him than it had upon any of his predecessors owing to the too great care with which he entertained suits, and the extraordinary influx of business, which might be attributed to other causes (d). Sir Thomas More, the successor to the cardinal, took a more sober and limited view of equity jurisprudence, and gave public antiquity, conceived in prescribed forms. This adlierence to prescribed forms has been considered as important to the due administration of justice in common cases. But, in progress of time, cases arose in which full justice could not be done in the courts of common law, according to the practice then prevailing. And, for the purpose of obtaining an adequate remedy, in such oases, resort was had to the extraordinary jurisdiction of the courts of equity, which alone had the power oi examining the party on oath, and thereby acting through the medium of his con- science, and of procuring the evidence of persons not amenable to the jurisdiction of the courts of common law, and whose evidence therefore it was in many cases, impossible to obtain without the assistance of a court of equity. The application to this extraordinary jurisdiction, instead of being in the form of a writ, prescribed by settled law, seems always to have been in the form of a petition of the party or parties aggrieved, stating the grievance, the defect of remedy by proceedings in the courts of common law, and the remedy, which, it was conceived, ought to be administered. This mode of proceeding unavoidably left every complaining party to state his case, according to the particular circumstances, always asserting that the party was without adequate remedy at the common law." (b) Parke, Hist. Chan. 55, 56; 3 Reeves, Hist. 379 to 382. (c) 4 Eeeves, Hist. 368, 369; Parke, Hist. Chan. 61, 62; i Inst. 91, 92. It seems that the first delegation of the powers of the lord chancellor to commissioners was in the time of Cardinal Wolsey. It will be found in Eymer's Pcedera, torn. 14, p. 299; Parke, Hist, of Chan. 60, 61. It was in the same reign that the Master of the Rolls (it is said) under a like appointment, first sat apart and used to hear causes at the Rolls in the afternoon. The master, who thus first heard causes, was Cuthbert Tunstall. 4 Reeves, Hist, of the Law, 368, 369; 5 Reeves, Hist. 160. But see Discourse on the Judicial Authority of the Master of the Rolls (1728), § 3, p. 83, &c. ; id. § 4, p. 110, &c., ascribed to Sir Joseph Jekyll. (d) 4 Reeves, Hist. 370. 26 EQUITY JURISPRUDENCE. [CH. II. favour as well as dignity to the decrees of the court. But still there were clamours from those who were hostile to equity during his time ; and especially to the power of issuing injunctions to judgments and other proceedings in order to prevent irreparable injustice (e). This controversy was renewed with much greater heat and violence in the reign of James I. upon the point, whether a court of equity could give relief for or against a judgment at common law; and it was mainly conducted by Lord Coke against, and by Lord EUesmere in favour of, the chancery jurisdiction. At last, the matter came directly before the king, and, upon the advice and opinion of very learned lawyers, to whom he referred it, his majesty gave judgment in favour of the equitable jurisdiction in such cases (/). Lord Bacon succeeded Lord EUesmere ; but few of his decrees, which have reached us, are of any importance to posterity (g). But his celebrated ordinances for the regulation of chancery gave a systematical character to the business of the court; and some of the most important of them still constitute the fundamental principles of its present practice (li). § 52. From this period, down to the time when Sir Heneage Finch (afterwards Earl of Nottingham) was elevated to the Bench (in 1673), little improvement was made, either in the principles or in the practice of chancery (i) ; and none of the persons who held the seals were distinguished for uncommon attainments or learning in their profes- sion (k). With Lord Nottingham a new era commenced. He was a person of eminent abilities, and the most incorruptible integrity. He possessed a fine genius, great liberality of views, and a thorough comprehension of the true principles of equity ; so that he was enabled to disentangle the doctrines from any narrow and technical notions, (e) Sir James Mackintosh's Life of Sir Thomas More; 4 Reeves, Hist. 370 to 376; Parke, Hiat. Chan. 63 to 65. There is a curious anecdote related of Sir Thomas More, who invited the judges to dine veith him, and, after dinner, showed them the number and nature of the causes in which he had granted injunctions to judgments of the court of common law; and the judges, upon full debate of the matters, confessed that they could have done no otherwise themselves. The anecdote is given at large in Mr. Cooper's Lettres sur la Gour de la Chancellerie, Letter 26, p. 185, note 1, from Eoper's Life of Sir Thomas More, ed. T. Hearne, 23. (/) 1 Collect. Jurid. 23, &c. ; 3 Black. Comm. 54 ; Parke, Hist. Chan. 80. The controversy gave rise to many pamphlets, not only at the time, but in later periods. The learned reader, who is inclined to enter upon the discussion of these points, now of no importance, except as a part of the juridical history of England, may consult advantageously the following works : Observations concerning the Office of Lord Chancellor, published in 1651, and ascribed (though it is said incorrectly) to Lord EUesmere. Discourse concerning the Judicial Authority of the Master of the Eolls, p. 61. A Vindication of the Judgment of King James. &c., printed in an Appendix to the first volume of Beports in Chancery, and in 1 Collect. Jurid. 23, &c. ; (he several Treatises on the Writ of Subpoena in Chancery, and the Abuses and Remedies in Chancery, in Hargreave's Law Tracts, pp. 321, 425; and 4 Eeeves, Hist, of the Law, pp. 370 to 377 ; 2 Swanst. 24, note. (g) 3 Black. Comm. 66. (h) See Bacon's Ord. in Chancery, by Beames. (i) 3 Black. Comm. 66. (k) See Parke, Hist. Chan. 92 to 210. § 52^-53.] ORIGIN AND HISTORY. 27 and to expand the remedial justice of the court far beyond the aims of his predecessors. In the course of nine years, during which he presided in the court, he built up a system of jurisprudence and jurisdiction upon wide and rational foundations which served as a model for succeeding judges, and gave a new character to the court (I) ; and hence he has been emphatically called " the father of equity " (w). His immediate successors availed themselves very greatly of his profound learning and judgment. But a suecess.or was still wanted, who with equal genius, abilities, and hberality, should hold the seals for a period long enough to enable him to widen the foundation and complete the structure, begun and planned by that illustrious man. Such a successor at length appeared in the person of Lord Hardwieke. This great judge presided in the Court of Chancery during the period of twenty years ; and his numerous decisions evince the most thorough, learning, the most exquisite skill, and the most elegant juridical analysis. There reigns, through all of them, a spirit of conscientious! and discriminating equity, a sound and enlightened judgment, as rare as it is persuasive, and a power of illustration from analogous topics of the law, as copious as it is exact and edifying. Few judges have left behind them a reputation more bright and enduring; few have had so favourable an opportunity of conferring lasting benefits upon the jurisprudence of their country ; and still fewer have improved it by so large, so various, and so important contributions. Lord Hardwieke, like Lord Mansfield, combined with his judicial character the still more embarrassing character of a statesman, and, in some sort', of a minister of state. Both of them, of course, encountered great political opposition (whether rightly or wrongfully, it is beside the purpose of this work to inquire) ; and it is fortunate for them, that their judicial labours are embodied in solid volumes, so that, when the prejudices and the passions of the times are passed away, they may remain open to the severest scrutiny, and claim from posterity a just and unimpeachable reward («.). § 53. This short and imperfect sketch of the origin and history of equity jurisdiction in England will be here concluded. It has not been inserted in this place from the mere desire to gratify those whose curiosity may lead them to indulge in antiquarian inquiries, laudable and interesting as it may be. But it seemed, if not indispensable, at least important, as an introduction to a more minute (I) Mr. Justice Blackstone has pronounced a beautiful eulogy on him, in 3 Black. Comm. 58, from which the text is, with slight alterations, borrowed. See also i Black. Comm. 442. (m) 1 Mad. Ch. Pr. Preface, 13. See Parke, Hist. Chan. 211, 212, 213, 214 r 1 Kent, Comm. Lect. 21, p. 492 {2nd edit.). (n) See 1 Kent, Comm'. Lect. 21, p. 494 (2nd edit.), and Lord Kenyon's opinion in Goodtitle v. Otway, 7 T. E. 411. See also 1 Butler's Eeminis. § 11, n. 1, 2, pp. 104 to 116. Lord Bldon, in Ex parte Greenway, 6 Ves. 812, said, "He [Lord; Hardwieke] was one of the greatest judges that ever sat in "Westminster Hall." "28 EQUITY JURISPRUDENCE. [CH. II. .and exact survey of that jurisdiction, as administered in the present ftimes. In the first place, without some knowledge of the origin and history of Equity Jurisdiction, it will be difficult to ascertain the «xact nature and limits of that jurisdiction; and how it can, or ought to, be applied to new cases, as they arise. If it be a mere arbitrary, «r usurped jurisdiction, standing upon authority and practice, it should be confined within the very limits of its present range; and the terra incognita, and the tetra prohibita, ought to be the same, as to its boundaries. If, on the other hand, its jurisdiction be legitimate, and founded in the very nature of remedial justice, and in the delegation of authority in all cases, where a plain, adequate, and complete remedy does not exist in any other court, to protect acknowledged rights, and to prevent acknowledged wrongs (that is, acknowledged in the municipal jurisprudence), then it is obvious, that it has an expansiye power, to meet new exigencies; and the sole question, applicable to -the point of jurisdiction, must from time to time be, whether such lights and wrongs do exist, and whether the remedies therefor in other courtiS, and especially in the courts of common law, are full, and adequate to redress. If the present examination (however imperfect) has tended to any result, it is to establish, that the latter is the true and constitutional predicament and character of the Court •of Chancery. § 54. In the next place, a knowledge of the origin and history of •equity jurisdiction will help us to understand, and in some measure -to explain, as well as to limit, the anomalies, which do confessedly «xist in the system. We may trace them back to their sources, and ascertain how far they were the result of accidental, or political, or other circumstances ; of ignorance, or perversity, or mistake in the judges; of imperfect development of principles; of narrow views of public policy ; of the seductive influence of prerogative ; or, finally, of a spirit of accommodation to the institutions, habits, laws, or tenures of the age, which have long since been abolished, but have left the scattered fragments of their former existence behind them. We shall thus be enabled to see more clearly, how far the operation of these anomalies should be strengthened or widened ; when they may be safely disregarded, in their application, to new cases and new circumstances; and when, through a deformity in the general system, they cannot be removed, without endangering the existence of other portions of the fabric, or interfering with the proportions of other principles, which have been moulded and adjusted with reference to them. § 55. In the next place, such a knowledge will enable us to prepare the way for the gradual improvement, as well of the science itself, as of the system of its operations. Changes in law, to be safe, must be slowly and cautiously introduced, and thoroughly examined. He who is ill-read in the history of any law, must be ill-prepared to know its § 54 — 55a.] ORIGIN and history. 2€P reasons as well as its effects. The causes or occasions of laws are sometimes as important to be traced out as their consequences. Thee new remedy to be applied may, otherwise, be as mischievous as the- wrong to be redressed. History has been said to be philosophy teaching by examples ; and to no subject is this remark more applicable than to law, which is emphatically the science of human experience, A sketch, however general, of the origin and sources of any portion of jurisprudence, may at least serve the purpose of pointing out the paths to be explored; and, by guiding the inquirer to the very places he seeks, may save him from the labour of wandering in the devious tracks, and of bewildering himself in mazes of errors as fruitless as they may be intricate. § 55a.. The High Court of Chancery, which was, as we have seen, a Court distinct from, and superior to, the Courts of Common law, was abolished by the Supreme Court of Judicature Act, 1873 (o), and,. together with the Courts of Common law and the Courts of Probate, Divorce, and Admiralty, was constituted one Supreme Court of Judicature in England. This Supreme Court consists of two divisions — the High Court, of Justice and the Court of Appeal — and the High Court of Chancery has to a large extent become the Chancery Division of the High Court of Justice. To this Chancery Division are assigned (p) all causes and matters for any of the following purposes : — The administration of the estates of deceased persons. The dissolution of partnerships or the taking of partnership or other accounts. The redemption or foreclosure of mortgages. The raising of portions or other charges on land. The sale and distribution of the proceeds of property subject- to any lien or charge. The execution of trusts, charitable or private. The rectification, or setting aside, or cancellation of deeds or other written instruments. The specific performance of contracts between vendors and. purchasers of real estates, including contracts for leases. The partition or sale of real estates. The wardship of infants and the care of infants' estates. Since this Act other matters have been assigned by various statutes to the Chancery Division; e.g., those arising under the Conveyancing- Act, 1881 (g), the Settled Land Act, 1882 (r), and the Guardianship of Infants Act, 1886 (s). The Judicature Act, 1873, further provides for the recognition. by all divisions of the High Court of the principles formerly adopted- Co) 36 & 37 Vict. c. 66, s. 3. (p) Sect. 34. (a) U & 45 Vict. u. 41, s. 63. W 45 & 46 Vict. c. 38, a. 49. (s) 49 & 50 Vict. c. 27, s. 9. 30 EQUITY JURISPRUDENCE. [CH. II. by the Court of Chancery, for by s. 24 of this Act it is provided that, for the future, claims by a plaintiff to any equitable estate or right, or to relief on any equitable ground, are to be recognised by all branches of the court; as also are claims by a defendant to an equitable estate or right or relief on equitable grounds; and whenever equitable estates, titles, rights, duties, and liabilities appear incidentally they are to be recognised (t). The effect of this is that the court is now neither a court of law nor a court of equity, but a court of complete jurisdiction (m); and, if there were a variance between what before the Act a court of law and a court of equity would have done, the rules of the court of equity must now prevail (a;). The Act, after having in particular insta,nces (y) enacted that certain rules of equity should prevail, further provides by sub-s. 11 of s. 25, that generally in all matters not hereinbefore particularly " mentioned in which there is any conflict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail." The Act further did away altogether with the auxiliary jurisdiction of the Court of Chancery. First, as to an injunction. This originally had been a remedy peculiar to the Court of Chancery, and, although power was conferred upon the courts of common law to grant an injunction by ss. 79 to 82 of the Common Law Procedure Act, 1854, as amended by ss. 32 and 33 of the Common Law Procedure Act, 1860, these Acts only allowed the plaintiff to ask for this peculiar remedy when the wrong had actually been committed; but now by s. 25, sub-s. 8, of the Judicature Act, 1878, " an injunction may be granted in any case in which it shall appear to the court to be just or convenient that such order should be made " {z). The injunction by means of which the Court of Chancery used to stay proceedings in the common law and other courts, where the defendant had a good equitable defence, is now obsolete ; but by 6. 24, sub-s. 6, of the Judicature Act, 1873, it is provided that no cause or proceeding at any time pending in the High Court of Justice or before the Court of Appeal shall be restrained by prohibition or injunction; but every matter of equity in which an injunction against the prosecution of any cause or proceeding might have been obtained (t) Sub-sects. 2, 3, and 4. (u) TampUn v. James, 15 Ch. D. 215. (x) Per Lord Cairns, in Pugh v. Heath, 7 App. Gas. 237. But in Joseph v. Lyons (5 Q. B. D. 280), it was held that the Judicature Acts had not abolished the distinc- tion between legal and equitable interests ; they merely enable the High Court to administer legal and equitable remedies. Vide per Cotton, L.J., 5 Q. B. D. 280. (i/) See sub-sects. 2, 3, 4, 7, and 10, all of which will be referred to afterwards. (z) This section does not alter the principles on which injunctions were formerly granted; but, in ascertaining what is just, regard must be had to what is convenient (Day V. Brownrigg, 10 Ch. D. 307). And an injunction may be granted even on an interlocutory application (sub-s. 8). See also E. S. C. Ord. 1. r. 6. See also § 873 jn, b, c, infra. § 55a.] ORIGIN AND HISTORY. 31 if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto (a). Next, as to discovery. Discovery could formerly be obtained only by means of a bill in the Court of Chancery, but power to grant discovery was conferred on the courts of common law by ss. 51 and 52 of the Common Law Procedure Act, 1854. But this right was only a limited right, and the custom and practice of discovery in the common law courts differed from that prevailing in the Court of Chancery. The present practice in discovery depends " upon the orders and rules of the Judicature Acts." But in them the extended principles of the Court of Chancery were followed rather than the narrower practice of the courts of common law itself derived from the practice in equity (b). Thus, under the Judicature Act the practice in discovers is a new intermediate practice ; but where there is any conflict or variance between the rules of common law and equity, with reference to the same matter, the rule of equity will prevail (c). The next remedy of the Court of Chancery was the appointment of a receiver. S. 25, sub-s. 8, of the Judicature Act gives power to any division of the High Court to appoint a receiver, a power originally vested only in the Court of Chancery (d). From the above concise account it will be seen that the changes made by the Judicature Act relate in a very slight degree, if at all, to the principles of equity jurisprudence which are the subject of the present treatise (e). It has not been thought necessary to alter the phrases " Court of Chancery " or " courts of equity," but these phrases must be under- stood, since 1873, to signify the Chancery Division of the High Court of Justice and the Court of Appeal therefrom. In the same way the phrase " courts of common law " means, since the Order in Council made 16th December, 1880, in pursuance of s. 32 of the Judicature Act, 1873, the King's Bench Division of the High Court. (o) An injunction may still be granted to restrain »■ person from instituttng pro- ceedings (Besant v. Wood, 12 Ch. D. 630). So, too, an injunction may be granted to restrain proceedings in inferior courts, or in tribunals constituted for a special purpose, or in tribunals of foreign countries. See Annual Practice, and Kerr on Injunctions, 3rd ed., pp. 576-7. The same sub-section provides that any court may stay proceedings in any matter before it. (b) Jones v. Monte Video Gas Co., 5 Q. B. D. 556, per Brett, L.J., at 558. (c) Bustros V. White, 1 Q. B. D. 496. The present practice as to discovery is regulated by Ord. xxxi. E. S. C. (1883). See infra, § 1480. (d) See, as to the grounds on which the Court of Chancery appointed a receiver, infra, § 829 and following sections. (e) Since the Judicature Act, 1873, the Lord Chancellor has not sat as a Judge of a Court of Pirst Instance; and since the Judicature Act, 1881 (44 & 45 Vict. c. 68), the Master of the Bolls has been a Judge of Appeal only. Since the Judicature Act. 1873, no new Vice-Chancellor has been created, and the old Court of Chancery Appeal was merged in the Court of Appeal of the Supreme Court by the same enactment. 32 GENERAL VIEW. [CH. III. CHAPTER III. GENERAL VIEW OF EQUITY JURISDICTION. § 59. Having traced out the nature and history of Equity Juris- prudence, we are naturally led to the consideration of the various subjects which it embraces, and the measure and extent of its jurisdiction. Courts of equity, in the exercise of their jurisdiction, may, in a general sense, be said to have differed from common law, in the modes of trial, in the modes of proof, and in the modes of relief. One or more of these elements will be found essentially to have entered, as an ingredient, into every subject over which they exerted their authority. Lord Coke has, in his summary manner, stated, that three things were to be judged of in the court of conscience or equity : covin, accident, and breach of confidence (a) ; or, as we should now say, matters of fraud, accident, and trust. Mr. Justice Blackstone has also said, that courts of equity were established " to detect latent frauds and concealments which the process of the courts of law is not adapted to reach ; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a court of law ; to deliver from eueh dangers as are owing to misfortune, or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law " (b). § 60. These, as general descriptions, are well enough; but they are far too loose and inexact to subserve the purposes of those who seek an accurate knowledge of the actual, or supposed, boundaries of equity jurisdiction. Thus, for example, although fraud, accident, and trust are proper objects of courts of equity, it is by no means true that they are exclusively cognizable therein. On the contrary, fraud is, in many cases, cognizable in a court of law. Thus, for example, reading a deed falsely to an illiterate person, whether it be so read by the grantee, or by a stranger, avoids it as to the other (a) 4 Inst. 84; Com. Dig. Chancery, Z. ; 3 Black. Comm. 431 ; 1 Eq. Abr. Courts, B. § 4, p. 130; Bac. Abridg. Court of Chancery, C. (b) 1 Black. Comm. 92. And see 3 Black. Comm. 429 to 432. § 59 — 61.] GENERAL VIEW. 33 party, at law (c). And, sometimes, fraud, such as fraud in obtaining a will, or devise of lands, is cognizable there (d). Many cases of accidents are remediable at law, such as losses of deeds, mistakes in accounts and receipts, impossibilities in the strict performance of conditions, and other like cases. And even trusts, though in general of a peculiar and exclusive jurisdiction in equity, are sometimes cognizable at law; as, for instance, cases of ^ailments, and that larger class of cases, where the action for money had and received for another's use is maintained ex xquo et bono (e). § 61. On the other hand, there are cases of fraud, of accident, and of trust, which neither courts of law, nor of equity, presume to relieve or mitigate. And, where the law has determined a matter, with all its circumstances, equity cannot (as we have seen) inter- meddle against the positive rules of law. And, therefore, equity will not interfere in such cases, notwithstanding accident, or unavoidable necessity. This was long ago remarked by Lord Talbot, who, after saying, " There are instances, indeed, in which a court of equity gives remedy, where the law gives none, ' ' added : ' ' But where a particular remedy is given by law, and that remedy is bounded and circum- scribed by particular rules, it would be very improper for this court to take it up, where the law leaves it, and extend it further than the law allows." And upon this ground, relief was refused to a creditor of the wife against her husband, after her death, though he had received a large fortune with her on his marriage (/). So, a man may by accident omit to make a will, appointment, or gift, in favour of some friend or relative; or he may leave his will unfinished; and yet there can be no relief (g). And many cases of the non-performance of conditioris are equally without redress {h). So, cases of trust may exist, in which the parties must abide by their own false confidence in others, without any aid from courts of justice. Thus, in cases of illegal contracts, or those in which one party has placed property in the hands of another for illegal purposes, as for smuggling, if the latter refuses to account for the proceeds, and fraudulently or unjustly withholds them, the former must abide by his loss; for In pari delicto melior est conditio possidentis, et defendentis, is a maxim of public policy equally respected in courts of law and courts of equity (i). And, on the other hand, where the fraud is perpetrated by one party only, still, if it involves a public crime, ■ and redress (c) Thoroughgood's Case, 2 Co. 9 a; Shulter's Case, 12 Co. 90; Jenkin's Cent. 166. (d) 1 Hovenden on Frauds, Introd. p. 16 ; id. ch. 10, p. 252. (e) 3 Black. Comm. 431, 432. (/) Heard v. Stanford, Cas. temp. Talb. 174. ig) Toilet V. Toilet, 2 P. Wme. 489; Poole v. Shergold, 10 Ves. 370; Martin v. Cooper, L. E. 3 Ch. 47. (h) In re Emson; Grain v. Grain, 74 L. J. Ch. 565; In re Lewis; Lewis v. Lewis, 1904, 2 Ch. 656. (t) Curtis V. Perry, 6 Ves. 739; Ewing v. Osbaldiston, 2 M. & Cr. 58. E. J. 3 34 EQUITY JURISPRUDENCE. [CH. III. cannot be obtained, except by a discovery of the facts from him personally, the law will not compel him to accuse himself of a crime ; and therefore the case is one of irremediable injury. § 62. These are but a few anaong many instances, which might be selected, to establish the justice of the remark, that even in cases professedly within the scope of equity jurisdiction, such as fraud, accident, and trust, there are many exceptions ; and that all that can be ascribed to such general allegations is genetal truth. The true nature and extent of equity jurisdiction, as at present administered, must be ascertained by a specifie enumeration of its actual limits in each particular class of cases, falling within its remedial justice. This will, accordingly, he done in the subsequent pages. § 63. We may here notice some of those maxims and general axioms, which are of frequent recurrence in the discussion of equity jurisprudence. § 64. In the first place, it is a common maxim, that equity follows the law, Mquitas sequitur legem (k). This maxim is susceptible of various interpretations. It may mean, that equity adopts and follows the rules of law in all cases to which those rules may, in terms, be applicable ; or it may mean, that equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished by the rules of law. Now, the maxim is true in both of these senses, as applied to different cases and different circumstances. It is universally true in neither sense; or rather, it is not of universal application (I). Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it (m). If the law commands or prohibits a thing to be done, equity cannot enjoin the contrary, or dispense with the obligation. Thus, since the law has declared that the eldest son shall take by descent the whole undevised estate of his parent, except in the case of gavelkind lands, a court of equity cannot disregard the canon of descent; but must give full effect and vigour to it in all controversies, in which the title is asserted. And yet, there are cases in which equity will control the _legal title of an heir, general or special, when it would be deemed absolute at law ; and in which, therefore, so far from following the law, it openly abandons it. Thus, if a tenant in tail, not knowing the fact, should, upon his (fe) In re Irwin; Irwin v. Parkes, 1904, 2 Ch. 752. See Dixon v. Enoch, L. E. 13 Eq. 394, for a, statutory exception to the rule. (I) Sir Thomas Clarke (Master of the EoUs), in one of his elaborate opinions, has remarked, in regard to uses and trusts, that, at law, the legal operation controls the intent; but, in equity, the intent controls the legal operation of the deed. Burgess v. Wheate, 1 W. Black. 137. See also In re Thursby ; Grant v. Littledale, 1910, 2 Ch. 181; 79 L. J. Ch. 638. (to) Curtis V. Perry, 6 Ves. 739; Thompson v. Leake, 1 Madd. 39; Ewing v. Osbaldiston, 2 M. & Cr. 53. § 62 64i).] GENERAL VIEW. 35 marriage, make a settlement on his wife, and the heir in tail should engross the settlement, and conceal the fact, although at law his title would be absolute, a court of equity would have awarded a perpetual injunction against asserting it to the prejudice of the settlement (n). So, if an heir-at-law should, by parol, promise his father to pay his sisters' portions, if he would not direct timber to be felled to raise them ; although discharged at law, he would in equity be deemed liable to pay them, in the same way, as if they had been charged on the land (o). And many cases of a like nature may be put (p). § 64a. So, in many cases, equity acts by analogy to the rules of law in relation to equitable titles and estates. Thus, although the statutes of limitations were in their terms applicable to courts of law only (q), yet equity, by analogy, acts upon them, and refuses relief under like circumstances. Equity always discountenances laches, and holds that laches is presumable in cases where it is positively declared at law. Thus, in cases of equitable titles in land, equity requires relief to be sought within the same period in which an ejectment would lie at law ; and, in cases of personal claims, it also requires relief to be sought within the period prescribed for personal suits of a like nature (r). And yet there are cases in which the statutes would be a bar at law, but in which equity would, notwithstanding, grant relief; and, on the other hand, there are cases where the statutes would not be a bar at law, but where equity, notwithstanding, would refuse relief (s). But all these cases stand on special circumstances, which courts of equity can take notice of when courts of law may be bound by the positive bar of the statutes. And there are many other cases where the rules of law and equity on similar subjects are not exactly co-extensive as to the recognition of rights or the maintenance of remedy. Thus, a person may be tenant by the courtesy of his wife's trust estate, but she was not, till the 3 & 4 Will. IV. c. 105, entitled to dower in his trust estate. So, where a power is defectively executed, equity will often aid it; whereas, at law, the appointment is wholly nugatory. § 64b. Other illustrations of the same maxim may be drawn from the known analogies of legal and trust estates. In general, in courts (n) Raw V. Potts, Prec. Ch. 35. (o) Dutton V. Poole, 1 Vent. 318. (p) Neville v. Wilkinson, 1 Bro. C. C. 543; Mestaer v. Gillespie, 11 Ves. 621; Middleton v. Middleton, 1 J. & W. 94. These cases proceed upon the ground of concealed fraud, by not allowing a party to use a mere technical advantage for the accomplishment of positive injustice; and in a manner which the law never con- templated. So that equity here does not dispense with the law, but merely supplies its defects. (g) Hovenden v. Lord Annesley, 2 Sch. & L. 607; Talmarsh v. MugUston, 4 L. J. 0. S. Ch. 200; Masonic General Life Assurance Co. v. Sharpe, [1892] 1 Ch. 154. (r) Smith v. Clay, 3 Bro. C. C. 640, note; Cholmondeley v. Clinton, 2 Jac. & Walk. 156; 4 Bligh. 1. («) See Pickering v. Lord Stamford, 2 Ves. Jun. 279, 582; Gibbs v. Guild, 9 Q. B. D. 59 ; Oelkers v. Ellis, [1914] 2 K. B. 139. 36 EQUITY JURISPRUDENCE. [CH. III. of equity, the same construction and effect- are given to perfect or executed trust estates as are given by courts of law to legal estates. The incidents, properties, and consequences of the estates are the same. The same restrictions are applied as to creating estates and bounding perpetuities, and giving absolute dominion over property. The same modes of construing the language and limitations of the trusts are adopted. But there are exceptions, as vi'ell known as the rule itself. Thus, executory trusts are treated as susceptible of various modifications and constructions not applicable to executed trusts. And, even at law, the words in a will are or may be differently construed when applied to personal estate, from what they are when applied to real estate. In short, it may be correctly said that the maxim, that equity follows the law, is a maxim liable to many exceptions ; and that it cannot be generally affirmed, that where there is no remedy at law in the given case, there is none in equity; or, on the other hand, that equity, in the administration of its ovvti principles, is utterly regardless of the rules of law. § 64c. Another maxim is, that where there is equal equity the law must prevail. And this is generally true ; for, in such a case, the defendant has an equal claim to the protection of a court of equity for his title as the plaintiff has to the assistance of the court to assert his title ; and then the court will not interpose on either side, for the rule there is, " In aequali jure melior est conditio possidentis. ' ' And the equity is equal between persons who have been equally innocent and equally diligent. It is upon this account that a court of equity constantly refuses to interfere, either for relief or discovery, against a bond fide purchaser of the legal estate for a valuable consideration, without notice of the adverse title, if he chooses to avail himself of the defence at the proper time and in the proper mode. And it extends its protection equally, if the purchase is originally of an equitable title without notice, and afterwards, with notice, the party obtains or buys in a prior legal title, in order to support his equitable title. This doctrine applies strictly in all cases where the title of the plaintiff seeking relief is equitable; it is inapplicable to the case of a plaintiff seeking equitable relief based upon a legal title (i). The purchaser, however, in all cases, must hold a legal title, or be entitled to call for it, in order to give him a full protection of his defence ; for, if his title be merely equitable, then he must yield to a legal and equitable title in the adverse party. So, the purchaser must have paid his purchase-money before notice, for otherwise he will not be protected ; and if he have paid a part only, he will be protected pro tanto only (u). (t) Collins v. Archer, 1 Kuss. & M. 284; Heath v. Grealock, L. E. 10 Ch. 22; Ind •Coope d Go. V. Emmerson, 12 App. Gas. 300. (u) Jackson v. Rowe, i Euss. 514, further proceedings, 9 L. J. (O.S.) Ch. 32. § 64c— 64gf.] GENERAL VIEW. 37 § 64d. But, even when the title of each party is purely equitable, it does not always follow that the maxim admits of no preference of the one over the other. For, where the equities are in other respects equal, still another maxim may prevail, which is "Qui prior est in tempore, potior est in jure "; for precedency in time will, under many circumstances, give an advantage, or priority in right. Hence, when the legal estate is outstanding, equitable incumbrances on real estate must be paid according to priority of time (x). But if the legal estate in personalty is outstanding, the person who first gives notice of his incumbrance to the debtor or trustee will have the preference (y). And whenever the equities are unequal, there the preference is constantly given to the superior equity. § 64e. Another maxim of no small extent is, that he who seeks equity, must do equity. This maxim principally applies to the party who is. seeking subsiantive relief, in the character of a plaintiff in the court («). Expectant heirs and reversioners must offer to repay the sums actually received by them together with interest (o); a mortgagor or puisne incumbrancer must offer to redeem (b), and many other illustrations of the maxim might be put. § 64/. Another maxim of general use is, that equality is equity; or, as it is sometimes expressed, equity delighteth in equality. And this quality, according to Bracton, constitutes equity itself: " .^quitas est rerum convenientia, qusB paribus in causis paria jura desiderat, et omnia vere co-aBquiparat, et dicitur aequitas, quasi sequalitas. " This maxim is variously applied ; as, for example, to cases of contribution between co-eobtractors, sureties, and others; to cases of abatement of legacies, where there is a deficiency of assets ; to cases of appor- tionment of moneys due on incumbrances among different purchasers and claimants of different parcels of the land; and especially to cases of the marshalling and the distribution of equitable assets, which were applied in payment of debts proportionally, without reference to their dignity, or priority of right at law, except as regards Crown debts. And here we have another illustration of the doctrine, that equity does not always follow the law. § 64^. Another, and the last, maxim which it seems necessary to notice is, that equity looks upon that as done, which ought to have been done. The true meaning of this maxim is, that equity will treat the subject-matter, as to collateral consequences, and incidents, in the same manner as if the final acts contemplated by the parties had (x) Phillips v. Phillips, 4 De G. F. & J. 208; Carritt v. Real and Personal Advance Co., 42 Ch. D. 263. (y) Dearie v. Hall, 3 Euss. 1. Iz) Dingle v. Cooper, [1899] 1 Ch. 726 ; In re Lloyd, Lloyd v. Lloyd, [1903] 1 Ch. 385 ; Hanson v. Keating, 4 Hare, 1. (a) Croft v. Graham:, 2 De G. J. & S. 71; Beynon v. Cook, L. E. 10 Ch. 389. (b) Gordon v. Horsefall, 5 Moo. P. C. 393; Inman v. Wearing, 3 De G. & S. 729. 38 EQUITY JUEISPRUDENCE. [CH. III. been executed exactly as they ought to have been; not as the parties might have executed them. But equity will not thus consider things in favour of all persons ; but only in favour of such as have a right to pray that the acts might be done (c). And the rule itself is not. in other respects, of universal application; although Lord Hardwieke said that it holds in every case except in dower (d). The most common cases of the application of the rule are under agreements. All agree- ments are considered as performed, which are made for a valuable consideration, in favour of persons entitled to insist upon their per- formance. They are to be considered as done at the time when, according to the tenor thereof, they ought to have been performed. They are also deemed to have the same consequences attached to them; so that one party, or his privies, shall not derive benefit by his laches or neglect; and the other party, for whose profit the contract was designed, or his privies, shall not sufifer thereby. Thus, money, covenanted, or devised, to be laid out in land, is treated as real estate in equity, and descends to the heir. And, on the other hand, where land is contracted, or devised, to be sold, the land is considered and treated as money. There are exceptions to the doctrine, where other equita-ble considerations intervene, or where the intent of the parties leads the other way, as where the sale is conditional ; but these demonstrate rather than shake the potency of the general rule. (c) In re Austin, Chetwynd v. Morgan, 31 Ch. D. 596. id) Crabtree v. Bramble, 3 Atk. 681. § 75, 76.] ACCIDENT. 39 CHAPTER IV. CONCURRENT JURISDICTION OF EQUITY — ACCIDENT. § 75. Having disposed of these matters, which may in some sort be deemed preliminary, the next inquiry which will occupy our attention, is to ascertain the true boundaries of the jurisdiction exercised by courts of equity. The subject here naturally divides itself into three great heads, — the concurrent, the exclusive, and the auxiliary or supplemental jurisdiction (a). As tte concurrent jurisdiction is that which is of the greatest extent, and most famiHar occurrence in practice, I propose to begin with it. § 76. The concurrent jurisdiction of courts of equity may be truly said to em.brace, if not all, at least a very large portion of the original jurisdiction, inherent in the court from its very nature, or first conferred upon it, at the dissolution or partition of the powers of the Great Council, or Aula Regis, of the King. "We have already seen, that it did not take its rise from the introduction of technical uses or trusts, as has sometimes been erroneously supposed (h). Its original foundation, then, may be more fitly referred to what Lord Coke deemed the true one, — fraud, accident, and confidence (c). In many cases of this sort, courts of common law, prior to the Judicature Act, 1873, had been accustomed to exercise jurisdiction, and to afford an adequate remedy. And in many other cases, in which anciently no such remedy was allowed, their jurisdiction was expanded, so as effectually to reach them. Still, however, there were many cases of fraud, accident, and confidence, which either courts of law did not attempt to redress at all; or, if they did, the redress which they , afforded was inadequate and defective. The concurrent jurisdiction, then, of equity, has its true origin in one of two sources : either the courts of law, although they had general jurisdiction in the matter, could not give adequate, specific, and perfect relief; or, under the actual circumstances of the case, they could not give any relief at all. The former occurred in all cases, when a simple judgment for the plaintiff, or for the defendant, did not meet the full merits and exigencies of the case; but a variety of adjustments, limitations, and cross claims (a) Ante, § 42, 43; 1 Cooper's Public Eecords, 357. (b) i Inst. 84 ; 3 Black. Comm. 431. (c) 4 Inst. 84; 3 Black. Comm. 431, 432. 40 EQUITY JUEISPRUDENCE. [CH. IV. were to be introduced, and finally acted on; and a decree, meeting all the circumstances of the particular case between the very parties, was indispensable to complete distributive justice. The latter occurred, when the object sought was till recent legislation incapable of being accomplished by the courts of law; as, for instance, a perpetual injunction, or a preventive process, to restrain trespasses, nuisances, or waste. It may, therefore, be said, that the concurrent jurisdiction of equity extended to all cases of legal rights, where, under the circumstances, there is not a plain, adequate, and complete remedy at law. § 77. The subject, for convenience, may be divided into two branches : (1) that, in which the subject-matter constituted the principal (for it rarely constituted the sole) ground of the jurisdiction; and (2) that, in which the peculiar remedies afforded by courts of equity constituted the principal (although not always the sole) ground of the jurisdiction. Of these we shall endeavour to treat successively in their order, beginning with that of the subject-matter, where the relief was deemed more adequate, complete, and perfect in equity than at common law ; but where the remedy was not, or, at least, might not be, of a peculiar and exclusive character. It is proper, however, to add, that as the grounds of jurisdiction often run into each other, any attempt at a scientific method of distribution of the various heads would be impracticable and illusory. § 78. And, in the first place, let us consider the cases, where the jurisdiction arises from accident. By the term accident is here intended, not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force ; but such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct in the party. Lord Cowper, speaking on the subject of accident, as cognizable in equity, said : ' ' By accident is meant when a case is distinguished from others of the like nature by unusual circumstances " (d) ; a definition quite too loose and inaccurate, without some further qualifications ; for it is entirely consistent with the language, that the unusual circumstances may have resulted from the party's own gross negligence, folly, or rashness. § 79. The jurisdiction of the court, arising from accident, in the general sense already suggested, is a very old head in equity, and probably coeval with its existence (e). But it is not every case of accident which will justify the interposition of a court of equity (/). The jurisdiction, being concurrent, will be maintained only, first, when a court of law cannot grant suitable relief; and, secondly, (d) Earl of Bath v. Sherwin, 10 Mod. 1. (e) See East India Co. v. Boddam, 9 Ves. 464; Armitage v. Wadsworth, 1 Mad. 189 to 193. (/) Whitfield V. Fausset, 1 Ves. Sen. 392, 393. § 77 — 82.] ACCIDENT. 41 when the party has a conscientious title to relief. Both grounds naust concur in the given case ; for otherwise a court of equity not only may, but is bound to withhold its aid. Mr. Justice Blackstone has very correctly observed, that, " many accidents are supplied in a court of law ; as loss of deeds, mistakes in receipts and accounts, wrong payments, deaths, which made it impossible to perform a condition literally, and a multitude of other contingencies. And many cannot be redressed, even in a court of equity ; as, if by accident a recovery is ill sufiered, a devise ill executed, a contingent remainder destroyed, or a power of leasing omitted in a family settlement (g). § 80. The first consideration then is, whether there is an adequate remedy at law, not merely whether there is some remedy at law. And here a most material distinction is to be attended to. In more recent times, courts of law frequently interfered, and granted a remedy under circumstances in which it would certainly have been denied in earlier periods. And, sometimes, the legislature, by express enactments, conferred on courts of law the same remedial faculty which belonged to courts of equity. Now (as we have seen), in neither case, if the courts of equity originally obtained and exercised jurisdiction, is that jurisdiction overturned or impaired by this change of the authority at law in regard to legislative enactments ; for, unless there are prohibitory or restrictive words used, the uniform inter- pretation is, that they confer concurrent and not exclusive remedial authority. And it would be still more difficult to maintain that a court of law, by its own act, could oust or repeal a jurisdiction already rightfully attached in equity (h). § 81. One of the most common interpositions of equity under this head was in the case of lost bonds or other instruments under seal. Originally the doctrine prevailed that there could be no remedy on a lost bond in a court of common law, because there could be no profert of the instrument, without which the declaration would be fatally defective; but about 1750 the court of law commenced to entertain the jurisdiction, and dispense with the profert, if an allegation of loss, by time and accident, was stated in the declaration (i). But this circumstance was not permitted in the slightest degree to change the course in equity (k). § 82. Independent of this general ground of the former inability to make a proper profert of the deed at law, there was another satisfactory ground for the interference of a court of equity. It is, that no other court could furnish the same remedy with all the fit limitations (g) 3 Black. Comm. 431. {h) Atkinson v. Leonard, 3 Bro. C. C. 218; Bromley v. Holland, 7 Ves. 19, 20; East India Co. v. Boddam, 9 Ves. 464. (i) Whitfield v. Fausset, 1 Ves. Sen. 387 ; Read v. Brokman, 3 T. E. 151. (A;) Atkinson y. 'Leonard, 3 Bro. C. C. 218; Bromley v. Holland, 7 Ves. 3; East India Go. v. Boddam, 9 Ves. 464. 42 EQUITY JURISPRUDENCE. [CH. IV. which may be demanded for the purposes of justice, by granting relief only upon the terms of the party's giving (when proper) a suitable- bond of indemnity. Now, a court of law was incompetent to require such a bond of indemnity as a part of its judgments, although it sometimes attempted an analogous relief (it is difficult to understand upon what ground), by requiring the previous offer of such an indemnity (l). But such an offer might, in many cases, fall far short of the just relief; for, in the intermediate time, there might be a great change in the circumstances of the parties to the bond of indemnity (m). In joint bonds, there are still stronger reasons; for the equities may be different between the different defendants (n). And, besides, a court of equity, before it would grant relief, would insist that the defendant should have the protection of the oath and affidavit of the plaintiff to the fact of the loss; thus requiring, what is most essential to the interests of justice, that the party should pledge his conscience by his oath, that the instrument was lost (o). § 84. It has been remarked by Lord Hardwicke, that the loss of a deed is not always a ground to come into a court of equity for relief; for, if there is no more in the case, although the party might be entitled to a discovery of the original existence and validity of the deed, courts of law might afford just relief, since they would admit evidence of the loss and contents of a deed (p), just as a court of equitywould do (g). To enable the party, therefore, in case of a lost deed, to come into equity for relief, he must have established that there was no remedy at all at law, or no remedy which was adequate, and adapted to the circumstances of the case. In the first place, he might come into equity for payment of a lost bond; for in such a case his biU need not have been for a discovery only, but might also be for relief; since the jurisdiction attached, when there was no remedy at law for want of a due profert ()■). In the next place, he might come into equity when a deed or will of land had been destroyed, or was concealed by the defendant; for then, as the party could not know which alternative was correct, a court of equity would make a decree (which a court of law could not) that the plaintiff should hold and enjoy the land (s). So, if a deed concerning land were lost, and the party in possession prayed discovery, and to be established in his possession under it, equity would relieve; for no remedy, in such a case, lay at law (t). (I) Ex parte Greenway, 6 Ves. 812; Pierson v. Hutchinson, 2 Camp. 211; s.c. 6 Bsp. 126. (m) East India Co. v. Boddam, 9 Ves. 464. (n) East India Co. v. Boddam , 9 Ves. 464. (o) Bromley v. Holland, 7 Ves. 19, 20. (p) Doe V. Lewis, 11 G. B. 1035. iq) Whitfield v. Fausset, X Ves. Sen. 392, 393. (r) Williams v. Flight, 5 Beav. 41. (s) Dalston v. Coatsworth, 1 P. Wms. 731; Williams v. Williams, 33 Beav. 306. it) Walmsley v. Child, 1 Ves. Sen. 344, 345. § 84 86.] ACCIDENT. 43 And, where the plaintiff was out of possession, there were cases in which equity would have interfered upon lost or suppressed title-deeds, and would have decreed possession to the plaintiff; but in all such cases there must have been other equities calling for the action of the court. Indeed, the bill must always have had some ground besides the mere loss of a title-deed, or other sealed instrument, to justify a prayer for relief; as, that the loss obstructed the right of the plaintiif at law, or left him exposed to undue perils in the future assertion of such right. § 85. By the law merchant, which in this respect was adopted by the Courts of Common law, the payee or holder was required to produce and hand over a negotiable bill or note (u) upon payment by the acceptor, and consequently there was no remedy upon a lost bill, even if an indemnity were offered {x) ; nor could the consideration be recovered under the same circumstances {y). The common law was subsequently altered in this respect by s. 87 of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), a provision which was subsequently repealed and re-enacted in s. 70 of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61). In respect of all other simple contracts the Court of Chancery might not entertain jurisdiction or decree pay- ment upon the mere fact of loss; for no such supposed inability to recover at law existed in the last-mentioned case as existed for want of a profert of a bond at law. No profert was necessary, and no oyer allowed at law of such a note or security; and no recovery could be had at law, upon mere proof of the loss. But, then, a court of law could not, as we have seen, insist upon an indemnity, or at least could not insist upon it in such a form as might operate as a perfect indemnity (z). Where a negotiable bill or note had been lost, a court of equity would entertain a bill for relief and payment, upon an offer in the bill to give a proper indemnity under the direction of the court, and not without. And such an offer entitled the court to require an indemnity, not strictly attainable at law, and founded a just jurisdiction (a). Courts of common law allowed an action to be maintained upon bills or notes proved to have been destroyed, and consequently there existed no corresponding necessity for an equitable jurisdiction to enable the money to be recovered (b). § 86. In the cases which we have been considering, the lost note, or other security, was negotiable. And, according to the authorities, this circumstance is most material ; for otherwise it would seem, that no indemnity would be necessary (c), and consequently no relief could (u) Wain v. Bailey, 10 A. & E. 616. (x) Hansard v. Robinson, 7 B. & C. 90; Ramuz v. Clay, 1 Ex. 167. (y) Crowe v. Clay, 9 Ex. 604. (z) See Hansard v. Robinson, 7 B. & C. 90. (a) Macartney v. Graham, 2 Sim. 796. (b) Wright v. Lord Maidstone, 1 K. & J. 701. (c) Wain v. BaiUy, 10 A. & E. 616. 44 EQUITY JURISPRUDENCE. [CH. IV. be had in equity (d). The propriety of this exception has been some- what doubted; for the party is entitled, upon payment of such a note or security, to have it delivered up to him, as voucher of the payment and extinguishment of it; and it may have been assigned, in equity, .or under the provisions of s. 25, sub-s. 6 of the Judicature Act, 1873 (36 & 37 Vict. c. 66), to a third person. And although, in such a case, the assignee would be affected by all the equities between the original parties, yet the promisor may not always, after a great length of time, be able to establish those equities by competent proof; and, at all events, he may be put to serious expense and trouble, to establish his exoneration from the charge. The jurisdiction of courts of equity, under such circumstances, seems perfectly within the principles on which such courts ordinarily proceed to grant relief, not only in cases of absolute loss, but of impending or probable mischief or inconvenience. And a bond of indemnity, under such circumstances, is but a just security to the promisor against the vexation and accumulated expenses of a suit (e). § 87. It is upon grounds somewhat similar, that courts of equity often interfere, where the party, from the long possession or exercise of a right over property, may fairly be presumed to have had a legal title to it, and yet has lost the legal evidence of it, or is now unable to produce it. Under such circumstances, equity acts upon the presumption, arising from such possession, as equivalent to complete proof of the legal right. Thus, where a rent has been received and paid for a long time, equity will enforce the payment, although no deed can be produced to sustain the claim; or. the precise lands, out of which it is payable, cannot, from confusion of boundaries, or other accident, be now ascertained (/). § 88. In the cases of supposed lost instruments, where relief was sought, it was indispensable, that the loss, if not admitted by the answer of the defendant, should be established by competent and satisfactory proofs {g). For the very foundation of the suit in equity rested upon this most material fact. If, therefore, the plaintiff should fail, at the hearing, to establish the loss of the instrument, or the defendant should overcome the plaintiff's proofs by countervailing testimony of its existence, the suit would be dismissed, and the plaintiff remitted to the legal forum. But if the loss were sufficiently established, when it was denied by the defendant's answer, the plaintiff would be entitled to relief, although he might have other evidence, competent and sufficient to establish the existence and contents of (d) See Wright v. Lord Maidstone, 1 K. & J. 701. (e) See Hansard v. Robinson, 7 B. & C. 90; East India Co. v. Boddam, 9 Ves. 468, 469 ; Davies v. Dodd, 4 Price, 176 ; Story on Bills, § 106 to 116, 243 to 245, 445. (/) Duke of Leeds v. New Radnor, 2 Bro. C. C. 338, 518; Searle v. Cooke, 43 Ch. D. 519. (g) East India Co. v. Boddam, 9 Ves. 466; Green v. Bailey, 15 Sim. 542; Bell v. Alexander, 6 Hare, 543. § 87 — 89.] ACCIDENT. 45 the instrument, of which he might have availed himself in a court of law. For if the jurisdiction once attached by the loss of the instrument, a court of equity would not drive the party to the hazard*of a trial at law, when the case was fit for its own interposition, and final action upon a claim to sift the conscience of the party by a discovery. Under the practice introduced by s. 24, sub-s. 7 of the Judicature Act, 1873 (36 & 87 Vict. c. 66), the jurisdiction could be exercised in any division in which a lost or destroyed instrument was the foundation of the action (h). § 89. We have thus far been considering cases of accident, founded upon lost instruments. But there are many other cases of accident, where courts of equity will grant relief. One of the earliest cases in which they were accustomed to int-erfere, was, where by accident a bond had not been paid at the appointed day, and it was subsequently sued ; or where a part only had been paid at the day (i). This jurisdic- tion was afterwards greatly enlarged in its operation, and applied to all cases, where relief was sought against the penalty of a bond, upon the ground that it was unjust for the party to avail himself of the penalty, when an offer of full indemnity is tendered. The same principle governs in the case of mortgages, where courts of equity con- stantly allow a redemption, although there is a forfeiture at law (fe). The learned author here added the expression of his opinion that, as a general proposition, it was correct to say, " where an inequitable loss or injury will otherwise fall upon a party from circumstances; beyond his control, or from his own acts done in entire good faith, and in the performance of a supposed duty, without negligence, courts- of equity will interfere to grant him relief. ' ' The cases cited do not warrant any pronouncement of this character, and there is ample authority negativing any such proposition. Where a personal repre- sentative paid a simple contract debt in ignorance and without notice of the existence of a judgment debt, it was regarded as a devastavit in a court of equity as well as in a court of law (l). If a person " in entire good faith, and in the performance of a supposed duty ' ' of maintaining the rights of himself or of the public, committed a trespass, not only would a court of equity not ' ' interfere to grant him relief, ' ' but it would grant an injunction to restrain him from repeating the tortious act (m). There is a statutory power to order the return of a portion of the premium in the event of the bankruptcy of the master under section 34 of the Bankruptcy Act, 1914 (4 & 5 Geo. V. c. 59), but there is no other authority to do so except in the event of misconduct on the part of the master, and the existence of an exceptional jurisdiction where the (h) See King v. Zimmerman, L E.. 6 C. P. 466. (i) Sloman v. Walter, 1 Bro. C. C. 418. (fc) Seton V. Slade, 7 Ves. 273, 274; post, § 1313, 1314, 1316. (0 Fuller V. Redman {No. 1), 26 Beav. 600. (m) Robertson v. Hartopp, 43 Ch. D. 484; Bourke v. Davis, 44 Ch. D. 110. 46 EQUITY JURISPRUDENCE. [CH. IV. master is a solicitor, and consequently an officer of the court, has been disclaimed (o). So the right to a return of the premium paid upon entering ilito partnership in the case of dissolution before the agreed termination, depended upon the misconduct of the recipient, or unfair dealing on his part, and this is in substance adopted in the Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 40 (p). So where a gift is liable to be defeated by the terms of a gift over there can be no relief where the legatee fails to perform the condition, although he is ignorant of its terms, unless his conduct has been induced by the fraud or overreaching of the party entitled under the terms of the gift over (g). § 94. In the execution of mere powers, it has been said that a court of equity will interpose, and grant relief on account of accident, as well as of mistake. And this seems regularly true, where, by accident, there is a defective execution of the power (r). And it is now settled that a non-execution of a power will not be aided unless the execution has been prevented by fraud (s). § 95. In regard to the defective execution of powers, resulting either from accident or mistake, or both, and also in regard to agree- ments to execute powers (which may generally be deemed a species of defective execution), courts of equity do not in all cases interfere and grant relief ; but grant it only in favour of persons, in a moral ■sense entitled to the same, and viewed with peculiar favour, and where there are no opposing equities on the other side. Without undertaking to enumerate all the qualifications of doctrine belonging tio this intricate subject, it may be stated, that courts of equity, in cases of defective execution of powers, will (unless there be some countervailing quality) interpose, and grant relief in favour of pur- .chasers, creditors, a wife, a legitimate child, and a charity ; but not in favour of the donee of the power, or a husband, or grandchildren, or remote relations, or strangers (including an illegitimate child) generally (t). § 96. But in cases of defective execution of powers we are care- fully to distinguish between powers which are created bj' private parties, and those which are specially created by statute; as, for instance, powers of tenants for life or in tail to make leases. What- ever formalities are required by the statute must be punctually complied with, where they constitute the apparent policy and object (o) Craven v. Stubbins, 34 L. J. Ch. 126; Ferns v. Can, 28 Ch. D. 409. (p) Atwood v. Maude, L. E. 3 Ch. 369; Wilson v. Johnstone, L. E. 16 Eq. 606; Belfi-eld v. Bourne, [1894] 1 Ch. 521. iq) In re Lewis; Lewis v. Lewis, [1904] 2 Ch. 656. (r) Sugd. Powers, 530, 8th ed. is) Toilet V. Toilet, 2 P. Wins. 489; In re Weekes' Settlement, [1897] 1 Ch. 289. See Sugd. Powers, 574, 575, 8th ed. (t) Sugd. Powers, 530, 8th ed. § 94—98.] ACCIDENT. 47 of the statute {u). In Shannon v. Bradstreet (x), Lord Eedeedale held that a defective appointment of a tenant for life under a power of leasing would be aided in equity as against the remainderman. This, principle has been adopted and extended by the 12 & 13 Vict. c. 26, ajid 13 & 14 Vict. c. 17, whereby, in the ease of leases granted in exercise of powers (including statutory powers), the lease may be validated in favour of lessee, and also of reversioners, notwithstanding the non-observance or omission of some condition or restriction, or by reason of any other deviation from the terms of such power (y). § 97. But as to the defects which may be remedied, they may generally be said to be any which are not of the very essence or sub- stance of the power. Thus, a defect by executing the power by will, when it is required to be by a deed, or other instrument, inter vivos, will be aided («). So, the want of a seal, or of witnesses, or of both (a), and defects in the limitations of the property, estate, or interest (b), will be aided. And, perhaps, the same rule will apply to defective executions of powers by femes covert. But equity will not aid defects which are of the very essence or substance of the power ; as, for instance, if the power be executed without the consent of parties who are required to consent to it (c). So, if it be required to be executed by will, and it is executed by an irrevocable and absolute deed; for this is apparently contrary to the settler's intention, a will being always revocable during the life of the testator; whereas, a deed would not be revocable unless expressly so stated in it (d). § 98. But a class of cases more common in their occurrence, as well as more extensive in their operation, will be found, where trusts, or powers in the nature of trusts, are required to be executed by the trustee in favour of particular persons, and they fail of being so exe- cuted by casualty or accident. In all such cases equity will interpose, and grant suitable relief. Thus, for instance, if a testator should, by his will, devise certain estates to A., with directions, that A. should, at his death, distribute the same among his children and relations as he should choose, and A. should die without making such a distribu- tion, a court of equity would interfere, and make a suitable distribution ; because it is not given to the devisee as a mere power, but as a trust and duty which he ought to fulfil; and his omission so to do by accident, or design, ought not to disappoint the objects of the bounty. (u) Earl of Darlington v. Pulteney, Cowp. 267; In re Kirwan's Trusts, 25 Ch. D. 373; In re Barnett; Dawes v. Ixer, [1908] 1 Ch. 402. (x) 1 Sch. & L. 52. (y) Exp. Cooper, In re L. d N. W. By., 34 L. J. Ch. 373. (z) Toilet V. Toilet, 2 P. Wms. 489. (a) Kennard v. Kennard, L. E. 6 Ch. 227. (b) Daniel v. Arkwright, 2 H. & M. 95. (c) Sympson v. Hornsby, Prec. Ch. 452. (d) In re Jackson's Will, 13 Ch. D. 189; In re Flower; Edmonds v. Edmonds, 55 L. J. Ch. 200. 48 EQUITY JDEISPKUBENCE. [CH. IV. It would be very difierent if the case were of a mere naked power, and not a power coupled with a trust (e). § 99. Another class of cases is, where a testator cancels a former will upon the presumption that a later will made by him is duly executed when it is not. In such a case it has been decided that the former will shall be set up against the heir in a court of equity, and the devisee be relieved there, upon the ground of accident (/). But it is doubtful if this principle would be followed at the present day, at any rate to the full extent (g). § 100. These may suffice, as illustrations of the general doctrine of relief in equity in eases of accident. They all proceed upon the same common foundation, that there is no adequate or complete remedy at law under all the circumstances ; that the party has rights which ought to be protected and enforced ; ot that he will sustain some injury, loss, or detriment, which it would be inequitable to throw upon him. § 101. And this leads us, naturally, to the consideration of those cases of accident, in which no relief will be granted by epurts of equity. In the first place, in matters of positive contract and obliga- tion, created by the party (for it is different in obligations or duties created by law) (k), it is no ground for the interference of equity, that the party has been prevented from fulfilling them by accident; or, that he has been in no default; or, that he has been prevented by accident from deriving the full benefit of the contract on his own side {i). Thus, if a lessee on a demise covenants to keep the demised estate in repair, he will be bound in equity as well as in law to do so, notwithstanding any inevitable accident or necessity by which the premises are destroyed or injured; as if they are burnt by lightning, or destroyed by public enemies, or by any other accident, or by over- whelming force. The reason is, that he might have provided for such contingencies by his contract, if he had so chosen; and the law will presume the intentional general liability, where he has made no exception (k). § 102. And the same rule applies in like cases, where there is an express covenant (without any proper exception) to pay rent during the term. It must be paid, notwithstanding the premises are acci- dentally burnt down during the term. And this is equally true as to the rent, although the tenant has covenanted to repair, except in cases of casualties by fire, and the premises are burnt down by such (e) Harding v. Glyn, 1 Atk. 469, and note by Saunders; Brown v. Higgs, 4 Ves. 709; 5 "Ves. 495; 8 Ves. 561. (/) Onions v. Tyrer, 1 P. Will. 343. (g) See Woodward v. Goulstone, 11 App. Gas. 469. ill) Paradine v. Jane, Aleyn 27. See also Story on Bailments, § 25, 35, 36. (t) Berrisford v. Done, 1 Vern. 98; Paine v. Miller, 6 Ves. 349; Rayner v. Preston, 18 Ch. D. 1. (k) Pym V. Blackburn, 3 Ves. 34. § 99—108.] ACCIDENT. 49 casualty; for, Expressio unius est exclusio alterius (I). In all eases of this sort of accidental loss by fire, the rule prevails, Res pent domino; and, therefore, the tenant and landlord suffer according to their pro- portions of interest in the property burnt ; the tenant during the term, and the landlord for the residue. § 103. And the like doctrine applies to other eases of contract, where the pafties stand equally innocent (m). Thus, for instance, if there is a contract for a sale at a price to be fixed by an award of third parties, one of whom dies before the award is made, the contract fails, and equity will not enforce it upon the ground of accident; for there is no equity to substitute a different method of ascertaining the value (n). § 104. So, if A. should covenant with B. to convey an estate for two lives in a church lease to B. by a certain day, and one of the lives should afterwards drop in before the day appointed for the conveyance, B. would be compelled to stand by his contract, and to accept the conveyance; for neither party is in any fault; and B., by the contract, took upon himself the risk by not providing for the accident (o). So, if an estate should be sold by A. to B., for a certain sum of money and an annuity, and thte agreement should be fair, equity will not grant relief, although the party should die before the payment of any annuity (p). § 105. Courts of equity will not grant rehef to a party upon the ground of accident where the accident has arisen from his own gross negligence or fault; for in such a case the party has nt> claim to come into a court of justice to ask to be saved from his own culpable mis- conduct. And, on this account, in general, a party coming into a court of equity is bound to show that his title to relief is unmixed with any gross misconduct or negligence of himself or his agents (g). § 106. In the next place, no relief will be granted on account of accident, where the other party stands upon an equal equity, and is entitled to equal protection. Upon this ground, also, equity will not interfere to give effect to an imperfect will against an innocent heir- at-law; for, as heir, he is entitled to protection, whatever might have been the intent of the testator, unless his title is taken away according to the rules of law. § 108. And, generally, against a bond fide purchaser, for a valuable consideration, without notice, a court of equity will not interfere on the ground of accident; for, in the view of a court of equity, such a purchaser has as high a claim to assistance and protection as any (0 Holtzapffell v. Baker, 18 Vee. 115. (m) Com. Dig. Chancery, 3 F. 5. (n) Milnes v. Gery, 14 Ves. 400; Scott v. Avery, 5 H. L. C. 811. (o) White V. Nutt, 1 P. Wms. 61. (p) Mortimer v. Capper, 1 Bro. C. C. 156; Kenney v. Wrexham, 6 Mad. 355. (q) See Counter v. Macpherson, 5 Moo. P. C. 83; In re Home; Wilson v. Cox Sinclair, [1905] 1 Ch. 76. E.J. 4 50 EQUITY JURISPRUDENCE. [CH. IV. other person can have. Principles of an analogous nature seem to have governed in many of the cases in which the want of a surrender of copyhold has been supplied by courts of equity. § 109. Perhaps, upon a general survey of the grounds of equitable jurisdiction in cases of accident, it will be found that they resolve themselves into the following: that the party seeking relief has a clear right, which cannot otherwise be enforced in a suitable manner; or, that he will be subjected to an unjustifiable loss, without any blame or misconduct on his own part; or, that he has a superior equity to the party from whom he seeks the relief. § 109 111.] MISTAKE. 51 CHAPTER V. MISTAKE. § 110. We may next pass to the consideration of the jurisdiction, of the courts of equity, founded upon the ground of mistake. This is sometimes the result of accident, in its large sense; but, as contra- distinguished from it, it is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced con- fidence. Mistakes are ordinarily divided into two sorts : mistakes in matter of law, and mistakes in matter of fact. § 111. And first, in regard to mistakes in matter of law. It is a well-known maxim, that ignorance of law will not furnish an excuse for any person, either for a breach, or for an omission of duty; Ignorantia legis neminem excused; and this maxim is generally as much respected in equity as in law (a), but in matters of purely equit- able jurisdiction, the rule is not so strictly applied, for there the line has not been drawn so strictly between mistakes of law and mistakes of fact (b). It probably belongs to some of the earliest rudiments of English jurisprudence ; and is certainly so old, as to have been long laid up among its settled elements. We find it Stated with great clear- ness and force in the Doctor and Student, where it is affirmed, that every man is bound at his peril to take knowledge what the law of the realm is; as well the law made by statute, as the common law (c). The probable ground for the maxim is that suggested by Lord Ellen- borough, that otherwise there is no saying to what extent the excuse of ignorance might not be carried (d). Indeed, one of the remarkable tendencies of the English common law upon all subjects of a general nature is, to aim at practical good, rather than theoretical perfection ; and to seek less to administer justice in all possible cases than to^ furnish rules which shall secure it in the common course of human business. If, upon the mere ground of ignorance of the law, men were admitted to overhaul or extinguish their most solemn contracts, and especially those which have been executed by a complete performance, (o) Goodman v. Sayers, 2 J. & W. 263; Bate v. Hooper, 5 De G. M. & G. 338; In re Sharp ; Bickett v. Bickett, [1906] 1 Ch. 793. (b) Dibbs V. Goren, 11 Beav. 483; Daniell v. Sinclair, 6 App. Cas. 181. (c) Doct. & Stud. Dial. 2, ch. 46. (d) Bilbie v. Lumley, 2 East 469, 472. 52 EQUITY JURISPRUDENCE. [CH. V. there would be much embarrassing litigation in all judicial tribunals, and no small danger of injustice, from the nature and difficulty of the proper proofs. The presumption is, that every person is acquainted with his own rights, provided he has had a reasonable opportunity to know them. And nothing can be more liable to abuse, than to permit a person to reclaim his property upon the mere pretence, that at the time of parting with it, he was ignorant of the law acting on his title. Mr. Fonblanque has accordingly laid it down as a general proposition, that in courts of equity ignorance of the law shall not affect agree- ments, nor excuse from the legal consequences of particular acts (e). And he is fully borne out by authorities (/). The rule is, however, restricted to matters of general law, and not to matters of private right (g). The ordinary rule as between litigant parties, that money paid under a mistake of law cannot be recovered, does not apply to a payment made under mistake to the trustee in a bankruptcy liquidator or other officer of the court (h). 112. One of the most common cases, put to illustrate the doctrine is, where two are bound by a bond, and the obligee releases one, supposing, by a mistake of law, that the other will remain bound. In such a case the obligee will not be relieved in equity upon the mere ground of his mistake of the law ; for there is nothing inequitable in the co-obligor's availing himself of his legal rights, nor of the other obligor's insisting upon his release, if they have both acted bona fide, and there has been no fraud or imposition on their side to procure the release (f). So, where a party had a power of appointment, and executed it absolutely, without introducing a power of revocation, upon a mistake of law, that being a voluntary deed, it was revocable, relief was in like manner denied (fe). If the power of revocation had been intended to be put into the appointment, and omitted by a mistake in the draft, it would have been a very different matt-er (I). § 113. The same principle applies to agreements entered into in good faith, but under a mistake of the law. They are generally held valid and obligatory upon the parties {ni). Thus, where a clause con- taining a power of redemption, in a deed granting an annuity, after (e) 1 Fonbl. Bq. B. 1, ch. 2, § 7, note (b) ; 1 Mad. Ch. Pr. 60; Eep. 364; 1 Ves. 127. (/) Goodman v. Sayers, 2 J. & W. 263; Bate v. Hooper, S, De G. M. & G. 338; In re Sharp; Rickett v. Rickett, [1906] 1 Ch. 793. (g) Cooper v. Phibbs, L. R. 2 H. L. 170; and of. Fountaine v. Carmarthen Ry., Jj. E. 5 Eq. 316, with In re County Life Assurance, L. K. 5 Ch. 288. (h) Ex parte Simmonds, In re Camiac, 16 Q. B. D. 308; In re Brown; Dixon v. Brown, 32 Ch. D. 597; In re Opera, Limited (1891), 2 Ch. 154. (i) Com. Dig. Chancery, 3 F. 8; Harmon v. Cannon, 4 "Vin. Abridg. 387, pi. 3; Cann v. Gann, 1 P. Will. 723. And see Ex parte Gifjord, 6 Ves. 805, as explained in Kearsley v. Cole, 16 M. & W. 128. (k) Worrall v. Jacob, 3 Meriv. 256. (/) See Wright v. .Goff, 22 Beav. 207 ; Daniel v. Arkwright, 2 H. & M. 95. (m) Powell V. Smith, L. E. 14 Eq. 85. § 112—116.] MISTAKE. 53 it had been agreed to, was deliberately excluded by the parties upon a mistake of law, that it would render the contract usurious ; the Court of Chancery refused to restore the clause, or to grant relief (n). Lord Eldon, in commenting on this case, said that it went upon an undisputable clear principle, that the parties did not mean to insert in the agreement a provision for redemption, because they were all of one mind that it would be ruinous. And they desired the court to do, not what they intended, for the insertion of that provision was directly contrary to their intention; but they desired to be put in the same situation, as if they had been better informed, and conse- quently had a contrary intention (o). So, where a devise was given upon condition that a woman should marry with the consent of her parents, and she married without such consent, whereby a forfeiture accrued to other parties, who afterwards executed an agreement re- specting the estate, whereby the forfeiture was in effect waived, the court refused any relief, although it was contended, that it was upon a mistake of law. Lord Hardwicke, on that occasion, said : "It is said, they [the parties] might know the fact, and yet not know the consequence of law. But if parties are entering into an agreement, and the very will, out of which the forfeiture arose, is lying before them and their counsel, while the drafts are preparing, the parties shall be supposed to be acquainted with the consequence of law as to this point; and shall not be relieved on a pretence of being surprised, with such strong circumstances attending it" (p). § 116. In the preceding section (q) it has been stated, that agree- ments made and acts done under a mistake of law are (if not otherwise objectionable) generally held valid and obligatory. The doctrine is laid down in this guarded and qualified manner, because it is not to be disguised, that there are authorities, which are supposed to con- tradict it, or at least to form exceptions to it. Indeed, in one case, Lord King is reported to have said, that the maxim of law, Igno- rrnitia juris non excusat, was, in regard to the public, that ignorance cannot be pleaded in excuse of crimes; but that it did not hold in civil cases (r). This broad statement is utterly irreconcilable with the well-established doctrine both of courts of law and courts of equity, and the decision itself has been overruled long since («). The general rule certainly is that a mistake of the law is not a~ ground for reforming a deed, founded on such a mistake. And whatever exceptions there may be to this rule, they are not only few in number, but they will be found («.) Imham v. Child, 1 Bro. C. C. 92. (o) Marquis of Townsend v. Stangroom, 6 Ves. 332. (p) Pullen V. Ready, 2 Atk. 587, 591. (3) Ante, § 113. (r) Lansdowne v. Lansdowne, Moseley 364; s.c. 2 Jac. & W. 205. (s) Stewart v. Stewart, 9 CI. & F. 911. 54 EQUITY JURISPKUDENCE. [CH V. to have something peculiar in their character, and to involve other elements of decisions. § 117. In illustration of this remark, we may refer to a case, com- monly cited as an exception to the general rule. In that case, the daughter of a freeman of London had a legacy of £10,000, left by her father's will upon condition that she should release her orphanage share; and, after her father's death, she accepted the l6gacy, and executed the release. Upon a bill, afterwards filed by her against her brother, who was the executor, the release was set aside, and she was restored to her orphanage share, which amounted to £40,000. Lord Chancellor Talbot, in making the decree, admitted that there was no fraud in her brother, who had told her that she was entitled to her election to take an account of her father's personal estate, and to claim her orphanage share; but she chose to accept the legacy. His lordship said: " It is true, it appears, the son [the defendant] did inform the daughter, that she was bound either to waive the legacy given by the father, or release her right to the custom. And, so far, she might know that it was in her power to accept either the legacy or orphanage part. But I hardly think she knew she was entitled to have an account taken of the personal estate of her father; and first to know, what her orphanage part did amount to; and that when she should be fully apprised of this, then, and not till then, she was to make her election, which very much alters the case. For, prob- ably, she would not have elected to accept her legacy, had she known, or been informed, what her orphanage part amounted unto, before she waived it and accepted the legacy " (f). § 118. It is apparent, from this language, that the decision of his lordship rested upon mixed considerations, and not exclusively upon mere mistake or ignorance of the law by the daughter. There was no fraud in her brother; but it is' clear that she relied upon her brother for knowledge of her rights and duties in point of law ; and he, however innocently, omitted to state some most material legal considerations, affecting her rights and duty. She acted under this misplaced confidence, and was misled by it; which of itself consti- tuted no inconsiderable ground for relief. But a far more weighty reason is, that she acted under ignorance of facts; for she neither knew nor had any means of knowing what her orphanage share was when she made her election. It was, therefore, a clear case of sur- prise in matters of fact, as well as of law. No ultimate decision was made in the case, it being compromised by the parties. § 119. The case of Evans v. Llewellyn (w) is exclusively put in the decree upon the ground of surprise, " the conveyance having been obtained and executed by the plaintiffs improvidently. " It was (t) Pusey v. Desboutirie, 3 P. Will. 315. (u) 2 Bro. C. C. 150 ; 1 Cox 333. § 117—121.] MISTAKE. 55 admitted that there was no sufficient proof of fraud or imposition practised upon the plaintiff (though the facts might well lead to some doubt on that point) ; and the plaintiff was certainly not ignorant of any of the facts which respected his rights. The Master of the EoUs (Sir Lloyd Kenyon, afterwards Lord Kenyon) said: " The party was taken by surprise. He had not sufficient time to act with caution; and, therefore, though there was no actual fraud, it is something like fraud, for an undue advantage was taken of his situation. • I am of opinion that the party was not competent to protect himself; and therefore this court is bound to afford him such protection; and therefore these deeds ought to be set aside, as improvidently obtained. If the plaintiff had, in fact, gone back, I should have rescinded the transaction " {x). § 120. The most general class of cases relied on as exceptions to the rule is that class where the party has acted under a misconcep- tion, or ignorance of his title to the property, respecting which some agreement has been made, or conveyance executed. So far as igno- rance in point of fact of any title in the party is an ingredient in any of these eases, they fall under a very different consideration (y). But so far as the party, knowing all the facts, has acted upon a mistake of the law, applicable to his title, they are proper to be discussed in this place. Upon a close survey many, although not all, of the cases, in the latter predicament, will be found to have turned, not upon the consideration of a mere mistake of law, stripped of all other circumstances, but upon an admixture of other ingredients, going to establish misrepresentation, imposition, undue confidence, undue influence, mental imbecility, or that sort of. surprise, which equity uniformly regards as a just foundation for relief (s). § 121. It has been laid down, as unquestionable doctrine, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of a compromise, a court: of equity will relieve him from the effect of his mistake. But, where a doubtful question arises, such as a question respecting the true construction of a will, a different rule prevails; and a compromise fairly entered into, with due deliberation, will be upheld in a court of equity, as reasonable in itself, to terminate the differences by dividing the stake, and as sup- ported by principles of public policy (a). (x) 1 Cox 340, 341. S. P. Fry v. Lane, 40 Ch. D. 312 ; James v. Kerr, 40 Ch. D. 449. iy) See Ramsden v. Hylton, 2 Ves. Sen. 304 ; Gann v. Cann, 1 P. Will. 727 ; Farewell v. Coker, cited 2 Meriv. 269; McCarthy v. Decaix, 2 Euss. & Myl. 614. See also Cocking v. Pratt, 1 Ves. Sen. 400. (z) See Willan v. Willan, 16 Ves. 82. (a) Naylor v. Winch, 1 Sim. & St. 565. See Stapilton v. Stapilton, 1 Atk. 2; Dunnage v. White, 1 Swanst'. 137 ; Gordon v. Gordon, 3 Swanat. 400 ; Smith v. Piricombe, 3 Mac. & G. 653. 56 EQUITY JURISPRUDENCE. [OH. V. § 122. In regard to the first proposition, the terms in which it is expressed have the material quahfication, that the party has, upon plain and settled principles of law, a clear title, and yet is in gross ignorance that he possesses any title whatsoever. Thus, if the eldest son, who is heir-at-law of all the undisposed of fee-simple estates of his ancestor, should, in gross ignorance of the law, knowing, however, that he was the eldest son, agree to divide the estates with a younger brother; such an agreement, executed or unexecuted, would be held, in a court of equity, invalid, and relief would be accordingly granted. In a case thus strongly put, there may be ingredients, which would give a colouring to the case, independent of the mere ignorance of the law. If the younger son were not equally ignorant, there would be much ground to suspect fraud, imposition, misrepresentation, or undue influence on his part (b). And if he were equally ignorant, the case would exhibit such a gross mistake of rights, as would lead to the conclusion of such great mental imbecility, or surprise, or blind .and credulous confidence, on the part of the eldest son, as might fairly entitle him to the protection of a court of equity upon general prin- ciples. Indeed, where the party acts upon the misapprehension that he has no title at all in the property, it seems to involve in some measure a mistake of fact; that is, of the fact of ownership, arising from a mistake of law. A party can hardly be said to intend to part with a right or title, of whose existence he is wholly ignorant; and if he does not so intend, a court of equity will, in ordinary cases, relieve him from the legal effect of instruments which surrender such unsus- pected right or title (c). § 124. In Bingham v. Bingham (d), there was a devise by A. to his eldest son and heir B., in fee tail, limiting the reversion to his own right heirs. B. left no issue, and devised the estate to the plaintifi. The defendant had brought an ejectment for the estate under the will; and the plaintiff purchased the estate of the defendant for £80, under a mistake of law, that the devise to him, by B., could not convey the fee. Having paid the purchase-money, he now brought his bill to have it refunded, alleging in the bill that he was ignorant of the law, and persuaded by the defendant and his scrivener and conveyancer, that B. had no power to make the devise. The Master of the Eolls, sitting for Lord Hardwicke, granted the relief, saying, that, though no fraud appeared, and the defendant apprehended he had a right, yet there was a plain mistake, such as the court was warranted to relieve against. This case has been the subject of con- troversy as to the actual ground of the decision. The report itself, and Lord Cottenham, referred it to the ground of mistake (e), as did (b) Leonard v. Leonard, 2 Ball & B. 182. , (c) Ramsden v. Hylton, 2 Ves. Sen. 304; Bullock v. Dowries, 9 H. L. C 1 yd) 1 Ves. Sen. 126; Belt's Sup. 79. (e) Stewart v. Stewart, 6 CI. & F. at p. 968. § 122—127.] MISTAKE. 57 Lord Gran worth (/). It may also be referred to the ground of fraud (g), as defined in the courts of equity. § 124a-. Bingham v. Bingham was expressly approved and followed in Cooper v. Phibbs (h), decided by the House of Lords in 1867. The facts were as follows: — The petdtoner agreed to become tenant to the respondent Phibbs of a salmon fishery for three years, but he after- wards discovered that he was himself the owner of the salmon fishery. He claimed a declaration that the agreement was consequently void, as being made under mistake, and it was held by the House of Lords that he was entitled to the declaration prayed for. It should be observed that there was an additional element in the case, from the fact that the petitioner's uncle, for whose daughters Phibbs was trustee, had told him that the salmon fishery belonged to him, i.e., the uncle. § 126. The distinction between cases of mistake of a plain and settled principle of law, and cases of mistake of a principle of law, not plain to persons generally, but which is yet constructively certain, as a foundation of title, is not of itself very intelligible, or, practically speaking, very easy eft application, considered as an independent element of decision. In contemplation of law, all its rules and prin- ciples are deemed certain, although they have not, as yet, been recognised by public adjudications. This doctrine proceeds upon the theoretical ground, that Id certum est quod certum, reddi potest; and that decisions do not make the law, but only promulgate it. Besides; what are to be deemed plain and settled principles ? Are they such as have been long and uniformly established by adjudica- tions only ? Or is a single decision sufficient ? What degree of clearness constitutes the line of demarcation ? If there have been' decisions different ways at different times, which is to prevail ? If a majority of the profession hold one doctrine, and a minority another, is the rule to be deemed doubtful, or is it to be deemed certain ? § 127. Take the case commonly put on this head, of the construc- tion of a will. Every person is presumed to know the law ; and though opinions may differ upon the construction of the will before an adjudication is made; yet, when it is made, it is supposed always to have been certain. It may have been a question at the bar, whether a devise was an estate for life, or in tail, or in fee simple. But when the court has once decided it to be the one or the other, the title is always supposed to have been fixed and certain in the party from the beginning. It will furnish a sufficient title to maintain a bill for the specific performance of a contract of sale of that title (i). if) Cooper V. Phibbs, L. E. 2 H. L., at p. 164. (3) Hitchcock V. Giddings, Dan. 1, s.c. 4 Price, 136. Ih) L. R. 2 H. L. 150. See also Earl Beauchamp v. Winn, L. B. 6 H. L. 223; Daniell v. Sinclair, 6 App. Cas. 181. (i) Beidley v. CaHer, L. E. 4 Ch. 230; Bell v. Holtby, L. E. 15 Eq. 178; Osborne to Rowlatt, 13 Ch. D. 774. 58 EQUITY JURISPEDDENCE. [CH. V. § 128. Where there is a plain and established doctrine on the subject, so generally known, and of such constant occurrence, as to be understood by the community at large as a rule of property, such as the common canons of descent; there, a mistake in ignorance of the law, and of title founded on it., may well give rise to a presumption that there has been some undue influence, imposition, mental imbe- cility, surprise, or confidence abused. But in such cases the mistake of the law is not the foundation of the relief; but it is the medium of proof to establish some other proper ground of relief (k). § 129. Lord Eldon, in a case of a family agreement, suggested that there might be a distinction between cases, where there is a doubt raised between the parties as to their rights, and a compromis..- is made upon the footing of that doubt, and cases, where the parties act upon a supposition of right in one of the parties without :% doubt upon it, under a mistake of law. The former might be held obligatory, when the latter ought not to be (l). But his lordship admitted that the doctrine attributed to Lord Macclesfield was otherwise, denying the distinction, and giving equal validity to agreements entered into upon a supposition of a right, and of a doubtful right. And in a sub- sequent case Lord Eldon based the validity of a compromise upon the fact that " the parties dealt with equal knowledge of the subject," by which word he seems to have meant circumstances (m). § 130. There may be a solid ground for a distinction between cases, where a party acts or agrees in ignorance of any title in him, or upon the supposition of a clear title in another, and cases where there is a doubt or controversy or litigation between parties as to their respective rights. In the former cases (as has been already suggested) the party seems to labour in some sort under a mistake of fact as well as of law. He supposes, as a matter of fact, that he has no title, and that the other party has a title to the property. As parties can only be treated as dealing with ascertained specific ques- tions (n), an intention cannot be imputed to him to release or surrender his title, if the act or agreement proceeds upon the supposi- tion that he has none. Lord Macclesfield is reported to have said, that if the party releasing is ignorant of his right to the estate, or if his right is concealed from him by the person to whom the release is made, there would be good reasons for setting aside the release (o). § 131. The whole doctrine of the validity of compromises of (k) See Sturge v. Sturge, 12 Beav. 229; Curson v. Bellworthy, 3 H. L. C. 742; Fry V. Lane, 40 Ch. D. 312. (l) Stockley v. Stockley, 1 V. & B. 31. Oh) Hotchis v. Dicksm, 2 Bligh., at p. 848. See also Bellamy v. Sabine, 2 Phill. 426; Cloutte v. Storey, 1911, 1 Ch. 18. (n) Cloutte V. Storey, [1911] 1 Ch. 18. (o) Cann v. Cann, 1 P. Will. 727. § 128—132.] MISTAKE. 59 doubtful rights rests on this foundation (p). If such compromises are otherwise unobjectionable, they will be binding, and the right will not prevail against the agreement of the parties ; for the right must always be on one side or the other, and there would be an end of compromises, if they might be overthrown upon any subsequent ascertainment of rights contorary thereto (q). If, therefore, a com- promise of a doubtful right is fairly made between parties, its validity cannot depend upon any future adjudication of that right (r). And where compromises of this sort are fairly entered into, whether the uncertainty rests upon a doubt of fact, or a doubt in point of law, if both parties are in the same ignorance, the compromise is equally binding, and cannot be affected by any subsequent investigation and result (s). But if the parties are not mutually ignorant, the case admits of a very different consideration, whether the ignorance be of a matter of fact or of law (t). It has been emphatically said, that no man can doubt that the Court of Chancery will never hold parties, acting upon their rights, to be bound, unless they act with full know- ledge of all the doubts and difficulties that do arise. But if parties will, with full knowledge, act upon them, though it turns out that one gains an advantage from a mistake in point of law, yet if the agreement was reasonable and fair at the time, it shall be binding (m). And transac- tions are not, in the eye of a court of equity, to be treated as binding even as family arrangements, where the doubts existing, as to the rights alleged to be compromised, are not presented to the mind of the party interested (a;). § 132. There are cases of family compromises, where, upon prin- ciples of policy, for the honour or peace of families, the doctrine sustaining compromises has been carried further. And it has beert truly remarked, that in such family arrangements the Court of Chan- cery has administered an equity, which is not applied to agreements • generally (y). Such compromises, fairly and reasonably made, to save the honour of a family, as in case of suspected illegitimacy, to prevent family disputes and family forfeitures, are upheld with a strong hand; and are binding, when in eases between mere strangers the like agreements would not be enforced (a). Thus, it has been (p) See the dictum of Lord Hardwicke, in Brown v. Pring, 1 Ves. 407, 408, as to compromises made by parties, with their eyes open and rightly informed. (q) Cann v. Cann, 1 P. Will. 727; Stapilton v. StapilUm, 1 Atk. 10; Naylor v. Winch, 1 Sim. & Stu. 556; Goodman v. Sayers, 2 Jac. & Walk. 263. See Neale v. Neale, 1 Keen, 672. (t) Lucy's Case, 4 De G. M. &.G. 356; Miles v. New Zealand Alford Estate Co.y 32 Ch. D. 266. (s) Lucy's Case, 4 De G. M. & G. 356; Lord Bellhaven's Case, 3 De G. J. & S, 41; Dixon v. Evans, L. E. 5 H. L. 606. (t) Gordon v. Gordon, 3 Swanst. 400; Smith v. Pincombe, 3 Mac. & G. 653. (o) Gibbons v. Gaunt, 4 Ves. 849. (s) Lawton v. Campion, 18 Beav. 87. {y) Stockley v. Stockley, 1 V. & B. 29 ; Bellamy v. Sabine, 2 Phill. 425. (z) Stapiltpn v. Stapilton, 1 Atk. 10; Persse v. Persse, 7 CI. & F. 279. 60 EQUITY JURISPRUDENCE. [CH. V. said, that if, on the death of a person, seised in fee, a dispute arises, who is heir; and there is room for a rational doubt, as to that fact, and the parties deal with each other openly and fairly, investigating the subject for themselves, and each communicating to the other all that he knows, and is informed of, and at length they agree to dis- tribute the property, under the notion that the elder claimant is illegitimate, although it turns out afterwards that he is legitimate; there, the court will not disturb such an arrangement, merely because the fact of legitimacy is subsequently established (a). Yet, in such a case, the party acts under a mistake of fact. In cases of ignorance of title, upon a plain mistake of the law, there seems little room to distinguish between family compromises and others. § 133. And where there is a mixture of mistake of title, gross per- sonal ignorance, liability to imposition, habitual intoxication, and want of professional advice, there has been manifested a strong dis- inclination of courts of equity to sustain even family settlements. It was upon this sort of mixed ground that it has been held that a deed executed by the members of a family to determine their interest •under the will and partial intestacy of an ancestor, ought not to be enforced. It appeared on the face of the deed, that the parties did not understand their rights, or the nature of the transaction; and that the heir surrendered an unimpeachable title without considera- tion. Evidence was also given of his gross ignorance, habitual intoxication, and want of professional advice. But there was no sufficient proof of fraud or undue influence; and there had been an •acquiescence of five years (b). § 134. Cases of surprise, mixed up with a mistake of law, stand upon a ground peculiar to themselves, and independent of the general doctrine. In such cases the agreements or acts are unadvised, and improvident, and without due deliberation; and, therefore, they are held invalid, upon the common principle adopted by courts of equity, to protect those who are unable to protect themselves, and of whom an undue advantage is taken (c). Where the surprise is mutual, there is of course a still stronger ground to interfere ; for neither party has intended what has been done. They have misunderstood the effect of their own agreements or acts; or have presupposed some facts or rights existing, as the basis of their proceedings, which in truth did not exist. Contracts made in mutual error, under circumstances material to their character and consequences, seem, upon general principles, invalid (d). Non videntur, qui errant, consentire, is a rule of the civil law (e) ; and it is founded in common sense and common (0) Gordon v. Gordon, 3 S'wanst. 463, 476. (b) Dunnage v. White, 1 Swanst. 137. (c) Sturge v. Sturge, 12 Beav. 229. See ante, § 119. (d) Mortimer v. Shortall, 2 Dr. & War. 363; May v. Piatt, 1900, 1 Ch. 616. (e) Dig. Lib. 50, tit. 17, f. 116, § 2. § 133—137.] MISTAKE. 61 justice. But in its application it is material to distinguish between error in circumstiances which do not influence the contract, and error in circumstances which induce the contract. § 135. There are also cases of peculiar trust, and confidence, and relation between the parties, which give rise to a qualification of the general doctrine. Thus, where a mortgagor had mortgaged an estate to a mortgagee, who was his attorney, and in settling an account with the latter, he had allowed him a poundage for having received the rents of the estate, in ignorance of the law that a mortgagee was not entitled to such an allowance, which was, professionally known to the attorney; it was held that the allowance should be set aside. But the master of the rolls, upon that occasion, put the case upon the peculiar relation between the parties; and the duty of the attorney to have made known the law to his client, the mortgagor. He said that he did not enter into the distinction between allowances in accounts from ignorance of law, and allowances from ignorance of fact; that he did not mean to say that ignorance of law will generally open an account. But that, the parties standing in this relation to each other, he would not hold the mortgagor, acting in ignorance of his rights, to have given a binding assent (/). § 136. There are, also, some other cases in which relief has been granted in equity, apparently upon the ground of mistake of law. But they will be found, upon examination, rather to be cases of defective execution of the intent of the parties from ignorance of law as to the proper mode of framing the instrument. Thus, where a husbsmd, upon his marriage, entered into a bond to his wife, without the intervention of trustees, to leave her a sum of money if she should survive him; the bond, although released at law by the marriage, was held good as an agreement in equity, entitling the wife to satis- faction out of the husband's assets (g). And so, e contra, where a wife before marriage executed a bond to her husband, to convey all her lands to him in fee, it was upheld in favour of the husband, after the marriage, as an agreement defectively executed, to secure to the husband the land as her portion (h). § 137. We have thus gone over the principal cases which are supposed to contain contradictions of, or exceptions to, the general rule, that ignorance of the law, with a full knowledge of the facts, furnishes no ground to rescind agreements or to set aside solemn acts of the parties. Without undertaking to assert that there are none of these cases which are inconsistent with the rule, it may be affirmed that the real exceptions to it are very few, and generally stand upon (/) Langstaffe v. Fenwick, 10 Ves. 405; S. P. Cockburn v. Edwards, 18 Ch. D. 449. ig) Acton v. Pearce, Prec. Ch. 237 ; Fitzgerald v. Fitzgerald, L. E. 2 P. C. 83; In re Breton's Estate, Breton v. Woolven, 17 Ch. D. 416. (h) Cannel v. Buckle, 2 P. Will. 243. 62 EQUITY JDKISPEUDENCE. [CH. V. some very urgent pressure of circumstances. The rule prevails in all cases of compromises of doubtful, and perhaps in all cases of doubted rights, and especially in all cases of family arrangements (f). It is relaxed in cases where there is a total ignorance of title, founded in the mistake of a plain and settled principle of law, and in cases of imposition, misrepresentation, undue influence, misplaced confidence, and surprise (fe). § 138. It is a matter of regret that, in the present state of the law, it is not practicable to present, in any more definite form, the doctrine respecting the effect of mistakes of law, or to clear the subject from some obscurities and uncertainties which still surround it. But it may be safely affirmed, upon the highest authority, as a well-established doctrine, that a mere naked mistake of law, unattended with any such special circumstances as have been above suggested, will furnish no ground for the interposition of a court of equity; and the present disposition of courts of equity is to narrow rather than to enlarge, the operation of exceptions (l). § 138o. The jurisdiction exercised by the court as a court of equity is still in the same irritating condition of doubt. In the common law action for money had and received, to which equitable principles were always applied, the party paying might recover against the recipient if the payment were made in ignorance of the facts, notwithstanding means of knowledge existed, or made in forgetfulness of facts (rw). § 139. Where a bond fide purchaser, for a valuable consideration, without notice, is concerned, equity will not interfere to grant relief in favour of a party, although he has acted in ignorance of his title upon a mistake of law; for in such a case the purchaser has, at least, an equal right to protection with the party labouring under the mistake (n.). And where the equities are equal, the court withholds itself from any interference between the parties (o). § 140. In regard to the other class of mistakes, that is, mistakes of iact, there is not so much difficulty.. The general rule is, that an act done, or contract made, under a mistake or ignorance of a (t) Stewart v. Stewart, 6 CI. & F. 911; Persse v. Persse, 7 CI. & F. 279. (A;) Stewart v. Stewart, 6 CI. & F. 911 ; Daniell v. Sinclair, 6 App. Oaa. 181. (I) Lord Cottenham, in his elaborate judgment in Stewart v. Stewart, 6 CI. & F. 694 to 971, critically examined all the leading authorities upon this subject, and arrived at the same conclusion; and his opinion was confirmed by the House of Lords. See also Great Western Railway v. Gripps, 5 Hare 91. (to) Kelly V. Solari, 6 M. & W. 54. (n) Ante, §§ 64 c, 108; post, §§ 166, 381, 409, 436. (o) See Maiden v. Menill, 2 Atk. 8. In the civil law there is much discussion as to the effect of error of law, and no inconsiderable embarrassment exists in stating, in what cases of error in law the party is relievable, and in what not. It is certain that a wide distinction was made between the operation of errors of law, and errors of fact. The subject is discussed at length. Dig. Lib. 22, tit. 6, f. 2. See also 2 Evans' Pothier on Oblig. Appendix, Ko. xviii. pp. 408 to 447; Ayliffe, Pand B 2 tit. 15 ; 1 Domat, B. 1, tit. 8, § 1. § 138—141.] MISTAKE. 63 material fact, is voidable and relievable in equity. The ground of this distinction between ignorance of law and ignorance of fact seems to be, that, as every man of reasonable understanding is presumed to know the law, and to act upon the rights which it confers or supports, when he knows all the facts, it is culpable negligence in him to do an act, or to make a contract, and then to set up his ignorance of law as a defence. The general maxim here is, as in other cases, that the law aids those who are vigilant, and not those who slumber over their rights. And this reason is recognised as the foundation of the dis- tinction, as well in the civil law as in equity (p). But no person can be presumed to be acquainted with all matters of fact; neither is it possible, by any degree of diligence, in all cases to acquire that know- ledge, and, therefore, an ignorance of facts does not import culpable negligence. The rule applies not only to cases where there has been a studied suppression or concealment of the facts by the other side, which would amount to fraud; but also to many cases of innocent ignorance and mistake on both sides (g). So, if a party has bond fide entirely forgotten the facts, he will be entitled to relief, because, under such circumstances, he acts under the like mistake of the facts, as if he had never known them (r). Ignorance of foreign law is deemed to be ignorance of fact, because the court itself does not take judicial notice of the foreign law, which must be proved as a fact (»). § 141. The rule, as to ignorance or mistake of facts, entitling the party to relief, has this important qualification, that the fact must be material to the act' or contract, that is, that it must be essential to its character, and an efficient cause of its concoction. For though there may be an accidental ignorance or mistake of the fact; yet, if the act or contract is not materially affected by it, the party claiming relief will be denied it. This distinction may be easily illustrated by a familiar case. A. buys an esiate of B., to which the latter is supposed to have an unquestionable title. It turns out, upon due investigation of the facts, unknown at the time to both parties, that B. has no title (as if B. were entitled in remainder expectant upon the deter- mination of an estate tail in C, and C. had executed a disentailing assurance) : in such a case equity would relieve the purchaser, and rescind the contract (t). But, suppose A. were to sell an estate to B., whose location was well known to each, and they mutually believed it to contain twenty acres, and in point of fact it only contained nineteen (p) See Pothier, Pand. Lib. 22, tit. 6, § 3, n. 4, 6, 6, 7; § 4, n. 10, 11; Cocking v. Pratt, 1 Ves. Sen. 400. (g) Att.-Gen. v. Ray, L. E. 9 Ch. 397; Scott v. Goulscm, [1903] 2 Ch. 249. The same principle was applied at the common law, Couturier v. Hastie, 5 H. L. C. 673. (r) Lady Hood of Avalon v. Mackinnon, [1909] 1 Ch. 476. (s) Leslie v. Bailie. 2 Y. & C. Ch. 91 ; M'Cormick v. Garnett, 5 De G. M. & G. 278 ; Di Sora v. Phillips, 10 H. L. C. 624. (t) See 1 Evans's Pothier on Oblig. Pt. 1, ch. 1, art. 9, n. 17, 18; Calverly v. Williams, 1 Ves. Jun. 210; Hitchcock v. Giddings, Dan. 1. 64 EQUITY JDEISPRUDENCE. [CH. V. acres and three-fourths of an acre, and the difference would not have varied the purchase in the view of either party; in such a case, the mistake would not be a ground to rescind the contract (u). But it is now clearly settled that with a few special exceptions a purchaser, after the conveyance is executed by all necessEiry parties, has no remedy at law or in equity in respect of defects either in the title to, or quantity or quality of, the estate, which are not covered by the vendor's covenants, unless he can make out a case of fraud (x). § 142. In cases of mutual mistake going to the essence of the con- tract, it is not necessary that there should be any presumption of fraud. On the contrary, equity will often relieve, however innocent the parties may be. Thus, if one person should sell a policy on the life of another to a third party, and the life assured was, in fact, dead, without any knowledge of the fact by either party, a court of equity would relieve the vendor, upon the ground that the purchase and sale proceeded upon the footing that the life was in existence. It con- stituted, therefore, the very essence and condition of the obligation of their contract (y). So, if a person should execute a release to another party upon the supposition, founded in a mistake, that certain debt or annuity had been discharged, although both parties were innocent, the release would be set aside upon the ground of a mistake (2). § 143. The same principle will apply to all other cases, where the parties mutually bargain for and upon the supposition of an existing right. Thus if a purchaser should buy the interest of the vendor in a remainder in fee, expectant upon an estate tail, and the tenant in tail had at the time, unknown to both parties, barred the estate in remainder, a court of equity would relieve the purchaser, in regard to the contract, purely upon the ground of mistake (a). § 144. The same principle will apply to cases of purchases, where the parties have been innocently misled under a mutual mistake as to the extent of the thing sold. Thus, if one party thought that he had bond fide purchased a piece of land, as parcel of an estate, and the other thought he had not sold it, under a mutual mistake of the bargain, that would furnish a ground to set aside the contract; because (as has been said) it is impossible to say, that one shall be forced to give that price for part only, which he intended to give for the whole; or, that the other shall be obliged to sell the whole for what he intended to be the price of part only (b). But where by the mutual mistake of vendor and purchaser, as to the duration of a (u) Okill V. WUttaker, 1 De G. & Sm. 83 ; 2 Ph. 338. (x) Joliffe V. Baker, 11 Q. B. D. 255 ; Palmer v. Johnson, 12 Q. B. D. 32, Seddon V. N. Eastern Salt Co., [1905] 1 Ch. 326. (y) Scott V. Coulson, [1903] 2 Ch. 249. Colyer v. Clay, 7 Beav. 188. (z) Hore v. Becker, 12 Sim. 465; Fane v. Fane, L. E. 20 Eq. 698. (a) Hitchcock v. Giddings, Dan. 1, s.c. 4 Price, 135. (b) Calverly v. Williams, 1 Vea. Jun. 210; Peers v. Lambert, 7 Beav. 546. See Douglas v. Baynes, [1908] A. C. 477. § 142—147.] MISTAKE. 65 leasehold interest, it was sold for much less than its real value, and the conveyance had been executed, and the purchaser had been in possession some years, the vendor was held entitled to no relief against the representatives of the vendee (c). § 145. It is upon the same ground that a court of equity proceeds, where an instrument is so general in its terms, as to release the rights of the party to property, and he was wholly ignorant that he had any title thereto, and it was not within the contemplation of the bargain at the time when it was made. In such cases the court restrains the instrument to the purpose of the bargain, and confines the release to the right intended to be released or extinguished. § 146. It is not, however, sufficient in all cases, to give the party relief, that the fact is material; but it must be such as he could not by reasonable diligence get knowledge of, when he was put upon inquiry. For if by such reasonable diligence he could have obtained knowledge of the fact, equity will not relieve him; since that would be to encourage culpable negligence (d). § 147. Nor is it in every case, where even a material fact is mis- taken or unknown without any default of the parties, that a court of equity will interpose. The fact may be unknown to both parties, or it may be known to one party, and unknown to the other. If it is known to one party, and unknown to the other, that Will in some cases afford a solid ground for relief; as, for instance, where it operates as a surprise, or a fraud, upon the ignorant party (e). But in all such cases, the ground of relief is, not the mistake or ignorance of material facts alone, but the unconscientious advantage taken of the party by the concealment of them (/). For if the parties act fairly, and it is not a case where one is bound to communicate the facts to the other, upon the ground of confidence, or otherwise, there the court will not interfere. Thus, if A., knowing that there is a mine in the land of B., of which he knows that B. is ignorant, should buy the land without disclosing the fact to B., for a price in which the mine is not taken into consideration, B. would not be entitled to relief from the contract, because A., as the buyer, is not obliged, from the nature of the contract, to make the discovery (g). There must always be shown, (c) Okill V. Whittaker, 1 De G. & Sm. 83 ; 2 Ph. 338. id) Undo V. Undo, 1 Beav. 496; L. 1 Eq. Cas. Abr. 90, P. 5, 6. § 266 271.] CONSTRUCTIVE FRAUD. Ill contract of marriage, by placing all parties upon the basis of good faith, mutual confidence, and equality of condition (o). § 268. The same principle pervades the class of cases where persons, upon a treaty of marriage, by any concealment or misrepre- sentation, mislead other parties, or do acts which are by other secret agreements reduced to mere forms or become inoperative. In all cases of such agreements relief will, upon the same enlightened public policy, be granted to the injured parties. For equity insists upon principles of the purest good faith, and nothing could be more subversive of it than to allow parties, by holding out false colours, to escape from their own solemn engagements (p). § 269. Thus, where a parent declined to consent to a marriage with the intended husband, on account of his being in debt, and the brother of the latter gave a bond for the debt to procure such consent ; and the intended husband then gave a secret counter-bond to his brother to indemnify him against the first, and the marriage proceeded upon the faith of the extinguishment of the debt, the counter-bond so given was treated as a fraud upon the marriage {conira fidem tabularum nuptialium), and all parties were held entitled as if it had not been given (pp). § 270. So, where the parent, upon a marriage of his son, made a settlement of an annuity or rent-charge upon the wife in full of her jointure, and the son secretly gave a bond of indemnity, of the same date, to his parent against the annuity or rent-charge, it was held void, as a fraud upon the faith of the marriage contract; for it affected to put the female party contracting for marriage in one situation by the articles, and, in fact, put her in another and worse situation by a private agreement [q). So, where a brother, on the marriage of his sister, let her have a sum of money privately, that her fortune might appear to be as much as was insisted on by the other side, and the sister gave a bond to the brother to repay it, the bond was set aside (?•). § 271. And where, upon a treaty of marriage, a party to whom the intended husband was indebted concealed his own debt, and mis- represented to the wife's father the amount of the husband's debts, the transaction was treated as a fraud upon the marriage, and the creditor was prevented by injunction from enforcing his debt, although it did not appear that there was any actual stipulation on the part of the wife's father in respect to the amount of the husband's debts (s). Upon this occasion Lord Chancellor Thurlow said: "The principle (o) Neville v. Wilkinson, 1 Bro. C. C. 543, 547. (p) Neville v. Wilkinson, 1 Bro. C. C. 543. ipp) Redman v. Redman, 1 Vern. 348. [q) Palmer v. Neave, 11 Vea. 165. (r) Gale v. Lindo, 2 Vern. 476 ; Lamlee v. Hanman, 2 Vern. 499. (s) Neville v. Wilkinson, 1 Bro. C. C. 543. 112 EQUITY JURISPRUDENCE. [CH VII. on which all these cases have been decided is, that faith in such contracts is so essential to the happiness both of the parents and children, that whoever treats fraudulently on such an occasion shall not only not gain, but even lose by it. Nay, he shall be obliged to make his representation good, and the parties shall be placed in the same situation as if he had been scrupulously exact in the performance of his duty." § 272. In all these cases, and those of a like nature, the distinct ground of relief is a meditated fraud or imposition practised by one of the parties upon third persons by intentional concealment or mis- representation. And, therefore, if the parties act under a mutual innocent mistake, and with entire good faith, the concealment or misrepresentation of a material fact will not induce the court to compel the party concealing it or affirming it to make it good, or to place the other party in the same situation as if the fact were as the latter supposed. There must be some ingredient of fraud, or some wilful misstatement or concealment, which has misled the other side. § 273. Upon a similar ground a settlement, secretly made by a woman in contemplation of marriage, of her own property to her own separate use without her intended husband's privity, was held to be void, as being in derogation of the marital rights of the husband, and a fraud upon his just expectations (t). But it would seem that the effect of the Married Women's Property Act, 1882, and of the amending statute of 1907, has been to abolish the whole doctrine of fraud on marit^al rights. § 274. It is upon the same ground of public policy that contracts in restraint of marriage are held void (u). A reciprocal engagement between a man and a woman to marry each other is unquestionably good (x). But a contract which restrains a person from marrying at all, or from marrying anybody, except a particular person, without enforcing a corresponding reciprocal obligation on that person, is treated as mischievous to the general interests of society, which are promoted by the encouragement and support of suitable marriages (y). Courts of equity have in this respect followed, although not to an unlimited extent, the doctrine of the civil law, that marriage ought to be free (a). § 275. Where, indeed, the obligation to marry is reciprocal, although the marriage is to be deferred to some future period, there may not be, as between the parties, any objection to the contract in itself, if in all other respects it is entered into in good faith, and there (t) Countess of Strathmore v. Bowes, 1 Ves. Jun. 22; affd. nom. Bowes v. Bowes, § Bro. P. C. 427; England v. Downs, 2 Beav. 522. (u) Hartley v. Rice, 10 East 22. (x) Cook v. Baker, 1 Stra. 34; Cock v. Richards, 10 Ves. 438. iy) Lowe v. Peers, 4 Burr. 2225; Cock v. Richards, 10 Ves. 429. (z) Dig. Lib. 35, tit. 1, ff 62, 63, 64; Key v. Bradshaw, 2 Vem. 102. § 272 — 276.] CONSTRUCTIVE FRAUD. 113 is no reason to suspect fraud, imposition, or undue influence (a). But, even in these cases, if the contract is designed by the parties to impose upon third persons, as upon parents, or friends standing in loco parentis, or in some other particular relation to the parties, so as to disappoint their bounty, or to defeat their intentions in the settle- ment or disposal of their estates; there, if the contract is clandestine, and kept secret for this purpose, it will be treated by courts of equity as a fraud upon such parents or other friends, and as such be set aside ; or the equities will be held the same as if it had not been entered into (b). The general ground upon which this doctrine is sustained is that parents and other friends, standing in. loco parentis, are thereby induced to act differently in relation to the advancement of their children and relatives from what they would if the facts were known; and the best influence which might be exerted in persuading their children and relatives to withdraw from an unsuitable match is entirely taken away. To give effect to such contracts would be an encouragement to persons to lie upon the watch to procure unequal matches against the consent of parents and friends, and to draw on improvident and clandestine marriages, to the destruction of family confidence, and the disobedience of parental authority (c). These are objects of so great importance to the best interests of society that they can scarcely be too deeply fixed in the public policy of a nation, and especially of a Christian nation. § 276. In the civil law a strong desire was manifested to aid in the establishment of marriages, as has been already intimated (d). And hence, all conditions annexed to gifts, legacies, and other valuable interests, which went to restrain marriages generally, were deemed inconsistent with public policy, and held void. A gift, therefore, to a woman, of land, if she should not marry, was held an absolute gift. ' ' Maeviae, si non nupserit, fundum quum morietur, lego ; potest dici, et si nupserit, earn confestim ad legatum admitti (e). Si testator rogasset hseredem, ut restituat haereditatem mulieri, si non nupsisset; dicendum erit compellendum hseredem, si suspectam dicat haeredita- tem, adire et restituere eam mulieri, etiam si nupsisset" (/). So, a gift to a father, if his daughter, who is under his authority {in potestate), should not marry, was treated as an absolute gift; the condition being held void (g). The avowed ground of these decisions was, that all such conditions were a fraud upon the law which favoured (a) Lowe v. Peers, i Burr. 2229, 2230; Key, v. Bradshaw, 2 Vern. 102; Frost v. Knight, L. E. 7 Ex. 111. (b) Cock v. Richards, 10 Vea. 429. (c) Woodhouse v. Shepley, 2 Atk. 539; Cock v. Richards, 10 Ves. 438, 539. (d) Ante, § 260. (e) Pothier, Pand. Lib. 35, tit. 1, n. 83; Dig. Lib. 35, tit. 1, f. 72, § 5. (/) Pothier, Pand. Lib. 35, tit. 1, n. 33; Dig. Lib. 36, tit. 1, f. 65, § 1. ig) Pothier, Pand. Lib. 35, tit. 1, n. 36. E.J. 8 114 EQUITY JURISPRUDENCE. [CH. VII. marriage; " Quod in fraudem legis ad impediendas nuptias scripfcum est, nuUam vim habet " (h). § 277. But a distinction was taken in the civil law between such general restraints of marriage, and a special restraint, as to marrying or not marrying a particular person; the latter being deemed not unjustifiable. Thus, a gift, upon condition that a woman should not marry Titius, or not marry Titius, Seius, or Msevius, was held valid (i). And the distinction was in some cases even more refined; for, if a legacy was given to a wife upon condition that she should not marry while she had children {si a liberis, ne nupserit), the condition was nugatory; but, if it was that she should not marry while she had children in puberty {si a liberis impuberibns ne nupserit), it was good (fe). And the reason given is that the care of children, rather than widowhood, might be enjoyed; " Quia magis cura liberorum, quam viduitas, injungeretur " (I). § 278. Courts of equity, in acting upon cases of a similar nature, have been in no small degree influenced by these doctrines of the civil law. But it has been doubted whether the same grounds upon which the Roman law acted can or ought to be acted on in a Christian country, under the common law. Lord Eosslyn has endeavoured to account for the introduction of these doctrines into English courts of equity from the desire of the latter to adopt, upon legatory questions, the rules of the ecclesiastical courts, which were borrowed directly from the civil law. And speaking upon the subject of the rule of the civil law, as to conditions in restraint of marriage, he said (m) : ' ' How it should ever have come to be a rule of decision in the ecclesiastical court is impossible to be accounted for, but upon this circumstance, that, in the unenlightened ages, soon after the revival of letters, there was la blind superstitious adherence to the text of the civil law. They never reasoned ; but only looked into the books and transferred the rules without weighing the circumstances, as positive rules to guide them. It is beyond imagination, except from that circumstance, how, in a Christian country, they should have adopted the rule of the Eoman law with regard to conditions as to marriage. First, where there is an absolute, unlimited liberty of divorce, all rules as to marriage are inapplicable to a system of religion and law, where divorce is not permitted. Next, the favour to marriage, and the objection to the restraint of it, were a mere political regulation, applicable to the circumstances of the Eoman empire at that time, and inapplicable to other countries. After the civil war, the depopu- lation occasioned by it led to habits of celibacy. In the time of ik) Ibid. Lib. 35, tit. 1, n. 35; Dig. Lib. 35, tit. 1, f. 79, § 4. (i) Pothier, Pand. Lib. 35, tit. 1, n. 34; Dig. Lib. 35, tit. 1, f. 63, 64. (fc) Pothier, Pand. Lib. 35, tit. 1, n. 34; Dig. Lib. 35, tit. 1, f. 62, § 2. (Z) Pothier, Pand. Lib. 35, tit. 1, n. 34. (m) Stackpole \. Beaumont, 3 Ves. 96. § 277 — 280.] CONSTRUCTIVE FRAUD. 115 Augustus, the Julian law, which went too far, and was corrected by the Lex Papia Popq)xa, not only offered encouragement to marriage, but laid heavy impositions upon celibacy. That being established, as a rule in restraint of celibacy (it is an odd expression), and for the encouragement of all persons who would contract marriage, it neces- sarily followed, that no person could act contrary to it by imposing restraints directly contrary to the law. Therefore, it became a rule of construction, that these conditions were null. It is difficult to apply that to a country where there is no law to restrain individuals from exercising their own discretion, as to the time and circumstances of the marriage which their children, or objects of bounty, may con- tract. It is perfectly impossible now, whatever it might have been formerly, to apply that doctrine, not to lay conditions to restrain marriage under the age of twenty -one, to the law of England; for it is directly contrary to the political law of the country. There can be no marriage under tlie age of twenty-one, without the consent of the parent." § 279. It is highly probable that this view of the origin of the English doctrine, as to conditions in restraint of marriage, annexed to gifts, legacies, and other conveyances of interests, is historically correct. But, whether it be so or not, it may be affirmed, without fear of contradiction, that the doctrine on this subject, at present maintained and administered by courts of equity (for it has under- gone some important changes), is far better adapted to the exigencies of modern society throughout Christendom, than that which was asserted by the Eoman law. While it upholds the general freedom of choice in marriages, it at the same time has a strong tendency to preserve a just control and influence in parents, in regard to the marriage of their children, and a reasonable power in all persons to qualify and restrict their bounty in such a manner, and on such conditions, as the general right of dominion over property in a free country justifies and protects, upon grounds of general convenience and safety. § 280. The general result of the modem doctrine on this subject (for it is impossible to reconcile all the cases) may be stated in the following summary manner. Conditions annexed to gifts, legacies, and devises, in restraint of marriage, are not void, if they are reason- able in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage (n-). If the condition is in restraint of marriage generally, then, indeed, as a condition against public policy, and the due economy and morality of domestic life, it will be held utterly void (o). And so, if the condition is not (n) Scott V. Tyler, 2 Bro C. C. 487 ; 2 Dick. 718; Stackpole v. Beaumont, 3 Ves. 95. (o) Morley v. Kennoldson, 2 Hare 570; [1895] 1 Ch. 449. 116 EQUITY JURISPRUDENCE. [CH. VII. in restraint of marriage generally, but still the prohibition is of so rigid a nature, or so tied up to peculiar circumstances, that the party upon whom it is to operate is unreasonably restrained in the choice of marriage, it will fall under the like consideration (p). Thus, where a legacy was given to a daughter, on condition that she should not marry without consent, or should not marry a man who was not seised of an estate in fee-simple of the clear yearly value of £500, it was held to be a void condition, as leading to a probable prohibition bi marriage (q). § 281. But the same principles of public policy which annul such conditions, when they tend to a general restraint of marriage, will confirm and support them when they merely prescribe such reason- able and provident regulations and sanctions as tend to protect the individual from those melancholy consequences to which an over- hasty, rash, or precipitate match would probably lead. If parents, who must naturally feel the deepest solicitude for the welfare of their children, and other near relatives and friends, who may well be presumed to take a lively interest in the happiness of those with whom they are associated by ties of kindred, or friendship, could not, by imposing some restraints upon their bounty, guard the inexperience and ardour of youth against the wiles and delusions of the crafty and the corrupt, who should seek to betray them from motives of the grossest selfishness, the law would be lamentably defective, and would, under the pretence of upholding the institution of marriage, subvert its highest purposes. It would, indeed, encourage the young and the thoughtless to exercise a perfect freedom of choice in maxriage ; but it would be ati the expense of all the best objects of the institution, the preservation of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality, and filial obedience and reverence.. Such a reproach does not belong to the common law in our day; and, least of all, can it be justly attributed to courts of equity. § 282. Mr. Fonblanque has, with great propriety, remarked: " The only restrictions which the law of England imposes, are such as are dictated by the soundest policy, and approved by the purest morality. That a parent, professing to be affectionate, shall not be unjust ; that, professing to assert his own claim, he shall not disappoint or control the claims of nature, nor obstruct the interests of the community; that what purports to be an act of generosity shall not be allowed to operate as a temptation to do that which militates against nature, morality, or sound policy, or to restrain from doing that which would serve and promote the essential interests of society; [these] are rules which cannot reasonably be reprobated as harsh infringements of (p) Keily v. Movck, 3 Eidgw. Pari. 205. iq) Ibid. § 281 — 285.] CONSTRUCTIVE FRAUD. 117 private liberty, or even reproached as unnecessary restraints on its free exercise. On these considerations are founded those distinctions which have from time to time been recognized in our courts of equity, respecting testamentary conditions with reference to marriage " (?•). § 283. Godolphin also has very correctly laid down the general principle. " All conditions against the liberty of marriage are unlawful. But, if the conditions are only such, as whereby marriage is not absolutely prohibited, but only in part restrained, as in respect to time, place, or person, then such conditions are not utterly to be rejected " (s). Still, this language is to be understood with proper limitations; that is to say, that the restraints upon marriage, in respect to time, place, or person, are reasonably asserted. For it is obvious that restraints as to time, place, and person may be so framed as to operate a virtual prohibition upon marriage, or, at least, upon its most important and valuable objects. As, for instance, a condition that a child should not marry until fifty years of age ; for this would be deemed a mere evasion or fraud upon the law (i). § 284. On the other hand, some provisions against improvident matches, especially during infancy, or until a certain age of discretion, cannot be deemed an unreasonable precaution for parents and other persons to affix to their bounty. Thus a legacy given to a daughter to be paid her at twenty-one years of age, if she does not marry until that period, would be held good, for it postpones marriage only to a reasonable age of discretion (u). So, a condition, annexed to a gift or legacy, that the party should not marry without the consent of parents or trustees, or other persons specified, is held good; for it does not impose an unreasonable restraint upon marirage ; and it must be pre- sumed that the person selected will act with good faith and sound discretion in giving or withholding consent (x). The civil law, indeed, seems, on this point, to have adopted a very different doctrine ; holding that the requirement of the consent of a third person, and especially of an interested person, is a mere fraud upon the law (y). § 285. Other cases have been stated, which are governed by the same principles. Thus, a condition restraining marriage with a domestic servant is not in general restraint of marriage (»). So, a con- dition that a widow or widower shall not re-marry, is not unlawful, neither is an annuity during widowhood only (a). A condition to marry, (r) Fonbl. Eq. B. 1, ch. 4, § 10, note (g). (s) Godolphin 's Orphan's Legacy, Pt. 1, ch. 15, § 1. (t) See Scott v, Tyler, 2 Dick. 721, 722; 2 Bro. C. C. 488. (u) Scott V. Tyler, 2 Bro. C. C. 431. (x) Clarke v. Parker, 19 Ves. 1; Lloyd v. Branton, 3 Mer. 108; Chapman v. Perkins, [1905] A. C. 106. (y) Lord Thurlow, in Scott v. Tyler, 2 Dick. 728; Ayliffe, Pand. B. 8, tit. 21, p. 374. (z) Jenner v. Turner, 16 Ch. D. 188. (a) Newton v. Marsden, 2 J. & H. 356 ; Evans v. Rosser, 2 H. & M. 190 ; Allen y. Jackson, 1 Ch. D. 399. 118 EQUITY JURISPRUDENCE. [CH. VII. or not to marry, Titius or Maevia, is good. So a condition, prescribing ■due ceremonies and a due place of marriage, is good. And so any other conditions of a similar nature, if not used evasively, as a covert purpose to restrain marriage generally (b). And on the same general principle, a condition that the legatee shall not become a nun is valid ; and although the will contain no bequest over, the legacy is forfeited if the legatee does become a nun (c). § 286. But courts of equity are not generally inclined to lend an indulgent consideration to conditions in restraint of marriage (d) ; and on that account (being in no small degree influenced by the doctrines of the civil and canon law), they have not only constantly manifested an anxious desire to guard against any abuse, to which the giving of one person any degree of control over another might eventually lead ; but they have, on many occasions, resorted to subtleties and artificial distinctions, in order to escape from the positive directions of the party imposing such conditions. § 287. One distinction is, between cases where, in default of a compliance with the condition, there is a bequest over, and cases where there is not a bequest over, upon a like default of the party to comply with the condition. In the former case, the bequest over becomes operative upon such default, and defeats the prior legacy (e). In the latter case (that is, where there is no bequest over), the con- dition is treated as ineffectual, upon the ground that the testator is to be deemed to use the condition in teiTorem only, and not to impose a forfeiture, since he has failed to make any other disposition of the bequest upon default in the condition (/). There is an intermediate class which had not been discussed in any decision when the author wrote, namely, of a gift terminating on marriage, and operating by way of conditional limitation. Gifts of this character cease upon marriage (g). § 288, In the case of conditions in restraint of marriage, annexed to a devise of real estate, or to a charge on real est-ate, or to things savouring of the realty, the doctrine of the common law, as to con- ditions, is strictly applied. If the condition be precedent, it must be strictly complied with, in order to entitle the party to the benefit of (b) Scott V. Tyler 2 Bro. C. C. 488; 2 Dick. 721, 722; HaugUon v. Haughton, 1 Moll. 611. (c) In Te Dickson, 1 Sim. N. S. 37. (d) See Long v. Dennis, 4 Burr, 2062. Lord Mansfield, in Long v. Dennis, 4 Burr. 2055, said, " Conditions in restraint of marriage are odious, and are, therefore, held to the utmost rigour and strictness." Lord Eldon seems to have disapproved of this generality of expression, in Clarke v. Parker, 19 Ves. 19. (e) In re Whiting's Settlement; Whiting v. De Rutzen, [1905] 1 Ch. 96. Where the condition of a devise was the giving of a bond not to marry or cohabit -with certain persons, with a devise over, the court refused to enforce the condition, as tending to inquiries disturbing the peace of another family. Poole v. Boit, 11 Hare 33. (/) Marples v. Bainbridge, 1 Mad. 590. ((/) Webb V. Grace, 2 Ph. 710; Heath v. Lewis, 3 De G. M. & G. 954. § 286 291.] CONSTRUCTIVE FRAUD. 119 the devise or gift. If the condition be subsequent, its validity will depend upon its being such as the law will allow to devest an estate. For, if the law deems the condition void as against its own policy, then the estate will be absolute and free from the condition. If, on the other hand, the condition is good, then a non-compliance with it will defeat the estate, in the same manner as any other condition subsequent will defeat it {h). § 289. If the bequest be of personal estate, and the condition in restraint of marriage be subsequent and general in its character, it is treated as the like condition is at law, in regard to real estate, as a mere nullity, and the legacy becomes pure and absolute (;)■ If it be only a limited restraint (such as to a marriage with the consent of parents, or not until the age of twenty-one), and there is no bequest over upon default, the condition subsequent is treated as merely in terrorem, and the legacy becomes pure and absolute (k). According to the more recent cases, if the restraint be a condition precedent, and be in general restraint of marriage, there, although it is void, if there is not a compliance with it, the estate will never arise in the legatee (L). § 291. But there is a modification of the strictness of the common law, as to conditions precedent in regard to personal legacies, which is at once rational and convenient, and promotive of the real intention of the testator. It is, that, where a literal compliance with the con- dition becomes impossible from unavoidable circumstances, and without any default of the party, it is sufficient that it is complied with, as nearly as it practically can be, or (as it is technically called) cy-pres. This modification is derived from the civil law, and stands upon the presumption, that the donor could not intend to require impossibilities, but only a substantial compliance with his directions, as far as they should admit of being fairly carried into execution It is upon this ground that courts of equity constantly hold, in cases of personal legacies, that a substantial compliance with the condition satisfies it, although not literally fulfilled. Thus if a legacy upon a condition precedent of the consent of the testator to a marriage, and a marriage should take place in his lifetime without his disapproval (w), or should require the consent of three persons to a marriage, and one or more of them should die, the consent of the survivor or survivors would be deemed a sufficient compliance with condition (n). And (h) Co. Litt. 206 a and b; id. 217 a; id. 237, Harg & Butler's note (152); Harvey V. Aston, 1 Atk. 361; Lowe v. Peers, i Burr. 2225; Long v. Ricketts, 2 Sim. & Stu. 179. (j) Morley v. Rennoldson, 2 Hare 570; [1895] 1 Ch. 449. (k) Lloyd V. Branton, 3 Meriv. 117; Marples v. Bainbridge, 1 Mad. 590. (/) Morgan v. Morgan, 4 De G. & Sm. 164; In re Brown's Will, 18 Ch. D. 61. (m) Chapman v. Perkins, [1905] A. C. 106. (n) Clarke v. Parker, 19 Yes. 1; Worthington v. Evans, 1 Sim. & Stu. 165. 120 EQUITY JURISPRUDENCE. [CH. VII. a fortiori, this doctrine would be applied to conditions subse- quent (o). § 291. The topic just discussed, although widely sundered from what we should now regard as fraud, suggests conditions annexed to a gift, the tendency of which is to induce husband and wife to live separate, or be divorced, and these upon grounds of public policy and public morals, are held void (p). In Wren v. Bradley (q), an annuity was bequeathed to a daughter, a married woman, ' ' in case she should be living apart from her husband, and should continue to do so " during the life of the testator's widow, which annuity was to cease whenever the annuitant should cohabit with her husband; the will also contained a residuary trust, the income of which was to be paid to the daughter, during such time as she should continue to live apart from her husband; but directed that, whenever she should cohabit with her husband, such income should be paid to other legatees ; and further contained a trust for the children of the daughter, by any other husband. The daughter and her husband were living apart at the date of the will, but had become reconciled, and were living together at the death of the testator and subsequently : it was held that the daughter was entitled to the benefit of all the provisions of the will in her favour. The Vice-Chancellor, Knight-Bruce, said, in giving judgment: " It is impossible to read the will without per- ceiving that the testator's wish and. object were to obstruct a reconciliation, and prevent the wife from living with her husband. And that, by that wish, by that object, its provisions to her were influenced and directed. The weight of authority and the principles of the civil law, as far as I consider them applicable, seem to me to render a decision in this case, in the daughter's favour, consistent at once with technical equity and moral justice." Here, too, common sense prevails. If the object is not to bring about a separation, but to make a provision for a spouse pending a separation, the condition would be valid (r). § 292. Another class of constructive frauds, and so deemed because 'inconsistent with the general poUcy of the law, is that of bargains and contracts made in restraint of trade. Formerly contracts in general restraint of trade were held to be ipso facto invalid, but according to the most recent decisions, a provision appointing a world- wide restraint upon the employment of personal services is not invalid, if justified by the circumstances, to determine which regard must be had to the respective interests of the parties to the contract, and of (o) Aislabie v. i?!ce>3 Mad. 256. (p) Marq. of Westmeath v. Marq. of Salisbv/ry, 5 Bli. N. S. 339; CartwrigM v. Cartwnght, 3 De G. M. & G. 982 ; In re Moore, Trafford v. Maconochie, 39 Ch. D. 116. (g) Wren v. Bradley, 2 De G. & Sm. 49. (r) Jones v. Waite, 5 Bing. N. C. 341; 9 CI. & P. 101; In re Hope Johnstone, [1904] 1 Ch. 470; Harrison v. Harrison, [1910] 1 K. B. 35. ■§ 291—294,] CONSTRUCTIVE FRAUD. 121 the public (s). And a person may lawfully sell a secret in his trade or business, and restrain himself from using that secret (t). § 293. The common law required that sales by auction should be conducted upon principles of free competition. Unless the seller re- served a right to bid, he could not run up the price by himself or his agent, commonly called a puffer (u) ; and, conversely, a prospective buyer was not entitled to damp the sale (x). In equity the converse rule obtained in favour of seller (?/) or buyer (z). But by the " Sale of Land by Auction Act," 1867 (30 & 31 Vict. c. 48), it is enacted that all sales of land where a pufier has bid shall be void, unless a right of bidding on behalf of the owner shall have been reserved, and that the conditions of sale shall state whether the sale is to be without reserve or subject to a reserved price, or whether a right to bid is reserved ; that if it be stated that the sale is to be without reserve, a puSer is not to be employed ; that if a right of bidding be reserved, the seller or one puffer may bid. And these provisions have lately been extended to sales of goods by auction by Section 58 of the Sale of Goods Act, 1893. § 294. In like manner, agreements, which are founded upon viola- tions of public trust or confidence, or of the rules adopted by courts in furtherance of the adminstration of public justice, are held void. Thus, an assignment of the full or half-pay of a retired officer of the army or other public officer is void ; for it operates as a fraud upon the public bounty (a). So, a corrupt bargain by a member of the legis- lature to turn his position to pecuniary account would be invalid, although there would be no objection to his making a bargain in refer- ence to his property, using his position as a lever to obtain favourable terms (b). Agreements, founded upon the suppression of criminal prosecutions, fall under the same consideration. They have a manifest tendency to subvert public justice (c). So, wager contracts, if contrary to sound morals, or injurious to the feelings or interests of third persons, or against the principles of public policy or duty, are void at the common law, and the general legality of wagers at the common law has been restricted by statute (d). So, of contracts to enable a (s) Nordenfeldt v. Maxim Nordenfeldt Guns <{ Ammumtion Co., [1894] A. C. 535; Mason v. Provident Clothing it Supply Co., [1913] A. C. 724; Morris, Lim. v. Saxelby, [1915] A. C. 688. (t)- Bryson v. Whitehead, 1 Sim. & Stu. 74; Hagg v. Darley, 47 L. J. Ch. 567. (a) Howard v. Castle, 6 L. E. 642; Crowder v. Austin, 3 Bing. 368. (x) Fuller v. Abrahams, 6 Moo. 316. (y) Smith v. Clarke, 12 Ves. 477. (z) In re Garew's Estate, 26 Beav. 197; Hejfer v. Martyn, 36 L. J. Ch. 372. (a) Stone v. Littledale, 2 Anst. 533; Davis v. Duhe of Marlborough, 1 Swanst. 74; Ex parte Hug gins, 21 Ch. D. 91. (b) Simpson v. Lord Howden, 3 M. & Cr. 97 ; 9 CI. & F. 61. (c) Lound V. Grimwade, 39 Ch. D. 605 ; Windhill hoc. Bd. v. Vint, 45 Ch. D. 351; Jrnies v. Merionette Building Soc, [1892] 1 Ch. 173; Consolidated Exploration d Finance Co. v. Musgrave, [1900] 1 Ch. 37. (d) Ramloll v. Soojumnull, 6 Moo. P. C. 300; Read v. Anderson, 10 Q. B. D. 100. 122 EQUITY JURISPKUDENCE. [CH. VII. person to violate the licence laws (e). So are contracts which have a tendency to encourage champerty (/). § 295. Another extensive class of cases, falling under this head of constructive fraud, respects contracts for the buying, selling, or pro- curing of public offices. It is obvious that all such contracts must have a material influence to diminish the respectability, responsibility, and purity of public officers, and to introduce a system of official patronage, corruption, and deceit wholly at war with the public interests. The confidence of officers may thereby not only be abused and perverted to the worst purposes, but mischievous arrangements may be made to the injury of the public; and persons may be intro- duced or kept in office who are utterly unqualified to discharge the proper functions of their stations. Such contracts are justly deemed contracts of moral turpitude ; and are calculated to betray the public interests into the administration of the weak, the profligate, the selfish, and the cunning. They are, therefore, held utterly void, as contrary to the soundest public policy, and, indeed, as a constructive fraud upoil the government (g). It is acting against the spirit of the constitution of a free government, by which it ought to be served by fit and able persons, recommended by the proper officers of the government for their abilities, and from motives of disinterested purity (h). It has been strongly remarked that there is no rule better established (it should be added, in law and reason, for, unfortunately, it is often otherwise in practice), respecting the disposition of every office in which the public are concerped, than this, detur digniori. On principles of public policy, no money consideration ought to influence the appointment to such offices (J). It was observed of old, that the sale of offices accom- plished the ruin of the Eoman Eepublic : " Nulla alia re magis Eomana Eespublica interiit, quam quod magistratus officia venalia erant " (fe). § 296. Another class of agreements, which are held to be void on account of their being against public policy, are such as are founded upon corrupt considerations or moral turpitude, whether they stand prohibited by statute or not; for these are treated as frauds upon the public or moral law. The rule of the civil law on this subject speaks but the language of universal justice: "Pacta, quae contra leges constitutionesque, vel contra bonos mores fiunt, nuUam vim habere, indubitati juris est" (l). It is but applying a preventive check, by withholding every encouragement from wrong, and aiming thereby (e) Ritchie v. Smith, 6 C. B. 462. (/) Reynell v. Sprye, 1 De G. M. & G. 660 ; Rees v. De Bemadij. [1896] 2 Ch. 437 ; Holding v. Thompson, [1907] 2 K. B. 489. (g) Hanington v. Du Chastel, 1 Bro. C. C. 124; Thomson v. Thomson, 7 Vee. 470. See Hill v. Paul, 8 Gl. & F. 295. (h) Morris v. MacCuUock, 2 Eden 190. (t) Lord Kenyon in Bachford v. Preston, 8 T. E. 92. (ft) Cited Co. Litt. 334 a. (I) Cod. Lib. 2, tit. 3, f. 6. § 295 — 298.] CONSTRUCTIVE FRAUD. 123 to enforce the obligations of virtue. For, although the law, as a science, must necessarily leave many moral precepts without due enforcement, as rules of imperfect obligation only, it is most studious not thereby to lend the slightest countenance to the violations of such precepts. Wherever positive law, or the common law, or, it has been said, the divine law prohibits the doing of certain acts, or enjoins the discharge of certain duties, any agreement to do such acts, or not to discharge such duties, is against the dearest interests of society, and, therefore, is held void; for, otherwise, the law would be open to the just reproach of winking at crimes and omissions, or tolerating in one form what it affected to reprobate in another. Hence, all agree- ments, bonds, and securities, given as a price for future illicit inter- course {premium pudoris), or for the commission of a public crime, or for the violation of a public law, or for the omission of a public duty, are deemed incapable of confirmation or enforcement upon the maxim, Ex twpi contractu non oritur actio (m). An agreement not under seal for any of the above purposes would be unenforceable at law and in equity for want of a consideration (n). Illegality being a matter of allegation and proof, a continued illicit cohabitation does not warrant the inference that a security was given to attain that object, omnia rite esse acta presumuntur (o). § 297. Other cases might be put to illustrate the doctrine of courts of equity in setting aside the agreements and acts in fraud of the policy of the law. Thus, where a parent conveyed land to his son to qualify him to kill game, he was not permitted to avoid the convey- ance (p). So, a person cannot recall a conveyance of property to a party with whom he is living in adultery (g). And other illustrations might be put chosen from decided cases which are now wholly or largely obsolete (?■)■ § 298. And here it may be well to take notice of a distinction often, but not universally, acted on in courts of equity as to the nature and extent of the relief which will be granted to persons who are parties to agreements or other transactions against public policy, and therefore are to be deemed paiiicipes criminis. In general (for it is not universally true), where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or ■mala in se, courts of equity, following the rule of law as to participators (m) Walker v. Perkins, 3 Burr. 1568; Gray v. Mathias, 5 Ves. 286; Kearley v. Thomson, 24 Q. B. D. 742; Consolidated Exploration & Finance Co. v. Musgrave, [1900] 1 Ch. 37. (n) Beaumont v. Reeve, 8 Q. B. 483. See Kekewich v. Manning, 1 De G. M. & G. 176. (o) In re Vallance, Vallance v. Blagdon, 26 Ch. D. 353. (p) Brackenbury v. Brackenbury , 2 J. & W. 391. (9) Ayerst v. Jenkins, L. R. 16 Eq. 282. (r) Wallis V. Duke of Portland, 3 Ves. 294; Stevens v. Bagwell, 15 Ves. 139. 124 EQUITY JURISPRUDENCE. [CH. VII. in a common crime (s), will not interpose to grant any relief; acting (upon the known maxim, In pari delicto potior est conditio defendentis, et possidentis (t). But in cases where the agreements or other trans- actions are repudiated on account of their being against public policy, ithe circumstance, that the relief is asked by a party who is particeps •criminis, is not in equity material. The reason is, that the public interest requires that relief should be given, and it is given to the public through the party (u). And in these cases relief will be granted not only by setting aside the agreement or other transaction, but also, in many cases, by ordering a repayment of any money paid under it. Jiord Thurlow, indeed, seems to have thought that, in all eases where money had been paid for an illegal purpose, it might be recovered back, observing that if courts of justice mean to prevent the perpetration of crimes, it must be, not by allowing a man who has got possession to remain in possession, but by putting the parties back to the state in which they were before. But this is pushing the doctrine to an extravagant extent, and effectually subverting the maxim, In pari delicto portior est conditio defendentis. The ground of reasoning upon which his lordship proceeded is exceedingly questionable in itself ; and the suppression of illegal contracts is far more likely, in general, to be accomplished by leaving the parties without remedy against each -other, and by thus introducing a preventive check, naturally connected with a want of confidence, and a sole reliance upon personal honour. And so, accordingly, the modem doctrine is established (a;). Belief is not granted where both parties are truly in pari delicto, unless in cases where public policy would thereby be promoted (y). § 299. Even in cases of a prsemium pudicitise, the distinction has been constantly maintained between bills for restraining the woman irom enforcing the security given, and bills for compelling her to give up property already in her possession under the contract. At least "there is no case to be found, where the contrary doctrine has been acted on, except where creditors were concerned. And in this respect English law seems to have had a steady regard to the policy of the Eoman jurisprudence (z). is) Bull, N. P. 131, 132. (t) Osborne v. Williams, 18 Ves. 379; In re Great Berlin Steamboat Co. 26 Ch. D. 616; Kearley v. Thomson, 24 Q. B. D. 742. (u) Williams v. Bayley, L. E. 1 H. L. 200; Jones v. Merioneth Permanent Building Society [1892] 1 Ch. 173 ; Martin v. Tomkinson, [1893] 2 Q. B. 121. (x) See Sharp v. Taylor, 2 Ph. 801. iy) See the remarks of Pry, L.J., Kearley v. Thomson, 24 Q. B. D". 742. (z) Rider v. Kidder, 10 Ves. 366 ; Ayerst v. Jenkins, L. E. 16 Eq. 282. The Eoman law has stated some doctrines and distinctions upon this subject, which are worthy of consideration. I shall quote them without commenting upon them. Three cases are put. (1) Where the turpitude is on the part of the receiver only; and there the rule is. Quod si turpis causa accipientis fuerit, etiamsi res secuta sit, repeti potest. Dig. Lib. 12, tit. 5, f. 1, § 2. (2) Where the turpitude is on the part of the giver alone; and there the rule is the contrary. Cessat quidem condictio, quum turpiter § 299 — 301.] CONSTRUCTIVE FRAUD. 125> § 300. And, indeed, in cases where both parties are in delicto, concurring in an illegal act, it does not always follow, that they stand. in pari delicto; for there may be, and often are, very different degrees in their guilt (a). One party may act under circumstances of oppres- sion, imposition, hardship, undue influence, or great inequality of condition or age ; so that his guilt may be far less in degree than that of his associate in the offence. And, besides, there may be, on the part of the court itself, a necessity of supporting the public interests or public policy, in many cases, however reprehensible the acts of the parties may be (b). § 301. In cases of usury, this distinction had been adopted by courts of equity before the repeal of the statutes against usury by the 17 & 18 Vict. c. 90. While the statutes were in existence courts of equity followed the law in the construction of the statute. If, therefore, the usurer or lender came into a court of equity, seeking to enforce the contract, the court would refuse any assistance, and. repudiate the contract. But, on the other hand, if the borrower came into a court of equity, seeking relief against the usurious contract, the only terms upon which the court would interfere, were, that the plaintiff would pay the defendant what was really and bona fide due to him, deducting the usurious interest, and, if the plaintiff did not make such offer in his bill, the defendant might demur to it, and the bill would be dismissed (c). The ground of this distinction was, that a court of equity was not positively bound to interfere in such cases by an active exertion of its powers; but it had a discretion on the datur. Pothier, Pand. Lib. 12, tit. 5, art. 8. (3) Where the turpitude affects both parties, and there the rule is, Ubi autem et dantis et accipientis turpitude versatnr, non posse repeti dicimus; veluti, si pecunia detur, ut male judicetur. Dig. Lib. 12, tit. 5, f. 3; Pothier, Pand. Lib. 12, tit. S, n. 7. The reason given is : In pari causa possessor potior haberi debet. Dig. Lib. 50, tit. 17, f. 128; Pothier, Pand. Lib. 12, tit. 5, D. 7. Several other examples are given under this head. Idem, si ob stuprum datum sit; vel si quis, in adulterio reprehensus, redemerit se, cessat enim repetitio. Item, so dederit fur, ne proderetur; quoniam utriusque turpitudo versatur, cessat repetitio. Dig. Lib. 12, tit. 5, f. 4; Pothier, Pand. Lib. 12, tit. 5, n. 7. Cum te propter turpem causam contra disciplinam tempomm meo rum, domum adversariae dedisse profltearis ; frustra eam tibi resitui desideras ; cum in pari causa possessoris conditio melior habeatur. Cod. Lib. 4, tit. 7, 1. 2; Pothier, Pand. Lib. 12, tit. 6, 1. 7. Sed quod mgretrici datur, repeti non potest. Sed nova ratione, non ea, quod utriusque turpitudo versatur, sed solius dantis; a new reason, which Pothier, as well as Ulpian, seems to doubt. See Dig. Lib. 12, tit. 5, f. 4, § 3; Pothier, Pand. Lib. 12, tit. 5, n. 7, and note (6). On the other hand, when the money had not been paid, or the contract fulfilled, the Eoman law deemed the contract void. Quamvis enim utriusque turpitudo versatur, ac solutae quantitatis cessat repetitio, tamen ex hujusmodi stipula- tione, contra bonos mores interposita, denegandas esse aotiones juris auctoritate demonstratur. Cod. Lib. 4, tit. 7, 1. 5; Pothier, Pand. Lib. 12, tit. 5, n. 9. (a) Osborne v. Williams, 18 Ves. 379. (b) Osborne v. Williams, 18 Ves. 379; Osbaldiston v. Simpson, 13 Sim. 513; Williams v. Bayley, L. E. 1 H. L. 200; Jones v. Merioneth Building Soc., [1892] 1 Ch. 173. (c) W V. B , 32 Beav. 574; Davies v. Otty, 35 Beav. 208; Mason v. Gardiner, 4 Bro. C. C. 4.36. 126 EQUITY JURISPRUDENCE. [CH. VII. subject, and might prescribe the terms of its interference; and he who seeks equity at its hands, may well be required to do equity. And it was considered against conscience, that the party should have full relief, and at the same time pocket the money lent, which may have been granted at his own mere solicitation (d). For then a statute, made to prevent fraud and oppression, would be made the instrument of fraud. But, in the other case, if equity had relieved the lender, who was plaintiff, it would have been aiding a wrongdoer, who was seeking to make the court the means of carrying into effect a trans- action manifestly wrong and illegal in itself. § 302. And, upon the like principles, if the borrower had paid the money upon an usurious contract, courts of equity (as, indeed, have also courts of law) (e), would assist him to recover back the excess paid beyond principal and lawful interest; but not further. For it is no just objection to say, that he is particeps criminis, or that Volenti non fit injuna. It would be absurd to apply the latter maxim to the case of a man who, from mere necessity, pays more than the other can in justice demand, and who has been significantly called the slave of the lender. He can in no just sense be said to pay voluntarily. And as to being particeps criminis, he stands in vinculis, and is compelled to submit to the terms which oppression and his necessities impose on him (/). Nor can it be said, in any case of oppression, that the party oppressed is particeps criminis; since it is that very hardship which he labours under, and which is imposed upon him by another, that makes the crime {g). § 303. In regard to gaming contracts, it would follow, a fortiori, that courts of equity ought not to interfere in their favour, but ought to afford aid to suppress them ; since not only can no action be brought on them by statute, but they may be justly pronounced to be immoral, as the practice tends to idleness, dissipation, and the ruin of families (h). If the money were actually paid in a case of gaming, courts of equity ought not to assist the loser to recover it back, upon the ground that he is particeps criminis. Lord Talbot on one occasion said: " The case of gamesters, to which this of [usury] has been com- pared, is no way parallel; for there both parties are criminal. And, if two persons will sit down, and endeavour to ruin one another, and (d) Scott v. Nesbit, 2 Bro. C. C. 641; s.c. 2 Cox 183; Benfield v. Solomons, 9 Ves. 84. (e) Fitzroy v. Gwillim, 1 T. R. 153. (/) Bosanquet v. Dashwood, Cas. temp. Talb. 39; Rawden v. Shadwell, Ambler 269, and Mr. Blunt 's notes. (g) Lord Chancellor Talbot in Bosanquet v. Dashwood, Cas. temp. Talb. 41. The same principle applies to cases of annuities set aside for want of a memorial duly registered; and an account of the consideration paid, and payments made, will be taken, and the balance only will be required to be paid, upon a decree to give up the security. Holbrook v. Sharpley, 19 Ves. 131. (h) Robinson v. Bland, 2 Burr. 1077. § 302 307.] CONSTRUCTIVE FRAUD. 127 one pays the money; if, after payment, he cannot recover it at law, I do not see that a court of equity has anything to do, but to stand neuter, there being in that case no oppression upon the party, as in this " (i). It does not seem that the Court of Chancery ever assumed a jurisdiction to set aside securities given in payment of gambling debts. These are novi^ struck at by the Gaming Act of 9 Anne c. 19, and the Gaming Act of 1835. § 305. The civil lavi' contains a most wholesome enforcement of moral justice upon this subject. It not only protects the loser against any liability to pay the money won in gaming; but if he has paid the money, he and his heirs have a right to recover it back at any distance of time ; and no presumption or limitation of time runs against the claim. " Victum in alese lesu, non posse conveniri. Et, si solverit, habere repetitionem, tam ipsum, quam hseredes ejus, adversus victorem et ejus hseredes; idque perpetuo, et etiam post triginta annos " (fc). Thirty years was the general limitation of rights in other cases. § 306. Questions are also often made, how far contracts, which are illegal by some positive law, or which are declared so upon prin- ciples of public policy, are capable, as between the parties, of a substantial confirmation. This subject has been already alluded to, and will be again touched in other places. The general rule is, that wherever any contract or conveyance is void, either by a positive law, or upon principles of public policy, it is deemed incapable of confirma- tion upon the maxim. Quod ab initio non valet, in traciu temporis non convalescet (l). But where it is merely voidable, or turns upon cir- cumstances of undue advantage, surprise, or imposition, there, if it is deliberately, and upon full examination, confirmed by the parties, such confirmation will avail to give it an ex post facto validity (m), and lapse of time is regarded as sufficient evidence of confirmation if unexplained (n), unless, as by the operation of the Infants' Eelief Act, 1874, such promises are incapable of confirmation. § 307. Let us, in the next place, pass to the consideration of the second head of constructive frauds ; namely, of those which arise from some peculiar confidential or fiduciary relation between the parties. In this class of cases, there is often to be found some inter- mixture of deceit, imposition, overreaching, unconscionable advantage, or other mark of direct and positive fraud. But the difficulty of proof has induced courts of equity to grant relief independent of any such (i) Bosanquet v. Dashwood, Cas. t. Talb. 41 ; Quarrier v. Colston, 1 Ph. 147. (k) Cod. Lib. 3, tit. 43, 1. 1. (/) Vernon's Case, i Co. 2 h.; Brook v. Hook, L. E. 6 Ex. 89; Goodwin v. Fielding, i De G. M. & G. 90. (m) Crowe v. Ballard, 1 Ves. Jr. 215; Morse v. Royal, 12 Ves. 355; Savery v. King, 5 H. L. C. 627. (n) Champion v. Rigby, Taml. 421 ; affd. 7 L. J. N. S. Ch. 211 ; Allcard v. Skinner, 36 Ch. D. US. 128 EQUITY JURISPRUDENCE. [CH. VII, ingredient, upon a motive of general public policy (o); and it is designed, in some degree, as a protection to the parties against the effects of overweening confidence, and self-delusion, and the infirmities of hasty and precipitate judgment. These courts will, therefore, often interfere in such cases, where, but for such a peculiar relation, they would either abstain wholly from granting relief, or would grant it in a very modified and abstemious manner (p). The eases of influence arising by inference from the situation of the parties will be discussed in succeeding paragraphs. It is also to be observed that relief will be granted where undue influence has been proved to exist in fact (g). § 308. It is undoubtedly true, as has been said, that it is not upon the feelings which a delicate and honourable man must experience, nor upon any notion of discretion, to prevent a voluntary gift or other act of a man, whereby he strips himself of his property, that court® of equity have deemed themselves at liberty to interpose in eases of this sort {r). They do not sit, or affect to sit, in judgment upon cases, as custodes morum, enforcing the strict rules of morality. But they do sit to enforce what has not inaptly been called a technical morality. If confidence is reposed, it must be faithfully acted upon, and pre- served from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains. If the means of personal control are given, they must be always restrained to purposes of good faith and personal good. Courts of equity will not, therefore, arrest or set aside an act or contract merely because a man of more honour would not have entered into it. There must be some relation between the parties, which compels the one to make a full discovery to the other, or to abstain from all selfish projects. But, when such a relation does exist, courts of equity, acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance, for it is founded in a breach of confidence. The general principle, which governs in all cases of this sort, is, that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief (s). § 309. In the first place, as to the relation of parent and child. A parent may exercise a natural and just influence over a child, and so long as he does not abuse his position, he rnay retain a benefit (o) Ex parte Lacey, 6 Ves. 625; Dent v. Bennett, 4 M. & Cr. 269; Benson v. Heathorn, 1 Y. & C. Ch. 326. (p) Goddard v. Carlisle, 9 Price 169 ; Wright v. Carter, 1903, 1 Ch. 27. (q) Smith V. Kay, 7 H. L. C. 750. (r) Huguenin v. Baseley, 14 Ves. 290. (s) Dent V. Bennett, 4 M & Cr. 269; Boyse v. Rossborough, 6 H. L. C. 2; Wright V. Carter, [1903] 1 Ch. 27; In re Coomber ; Coomber v. Coomber, [1911] 1 Ch. 723. § 308 — 310.] CONSTRUCTIVE FRAUD. 129 conferred upon him by his child (<). Of this character are advantages obtained by a parent upon a resettlement of family estates. But the general rule is that when a child who is not emancipated from his parent's control, confers a benefit upon the parent, if the transaction is subsequently impeached by the child, the onus is on the parent to show that the child had independent advice, and that he executed the deed with full knowledge of its contents, and with a free intention of giving the parent the benefit conferred by it. And, according to the universal rule in equity, volunteers claiming through the parent, and all persons with notice of the circumstances which raise the equity, stand in no better position than the parent (m). It is desirable, though not essential, when a child makes a gift to his father, that the child and the father should be represented by independent solicitors (x). And the same principles apply to a voluntary gift to a person who has put himself in loco pureniis towards the donor {y). § 310. In the next place, as to the relation of client and legal adviser. It is obvious that this relation must give rise to great con- fidence between the parties, and to very strong influences over the actions, and rights, and interests of the client (2). The situation of a legal adviser puts it in his power to avail himself, not only of the necessities of his client, but of his good nature, liberality, and credulity, to obtain undue advantages, bargains, and gratuities. Hence, the law, with a wise providence, not only watches over all the transactions of parties in this predicament, but it often interposes to declare trans- actions void, which, between other persons, would be held unobjection- able. It does not so much consider the bearing or hardship of its doctrine upon particular cases, as it does the importance of preventing a general public mischief, which may be brought about by means, secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties (o). There are cases in which it has been asserted that, while the relation of client and solicitor subsists in its full vigour, the latter shall derive no benefit to himself from the contracts, or bounty, or other negotia- tions of the former (h); but the cases fall short of this, the principle being that the legal adviser must establish that a gift was the free (t) Bellamy v. Sabine, 2 Ph. 425; Hoghton v. Hoghton, 1-5 Beav. 278; Hartopp v. HaHopp, 21 Beav. 259; Hoblyn v. Hoblyn, 41 Ch. D. 200. («) Savery v. King, 6 H. L. C. 627; Baker v. Bradley, 7 De G. M. & G. 597; Turner v. Collins, L. E. 7 Ch. 329 ; Bainbrigge v. Brown, 18 Ch. D. 188. (x) Gibbs v. Daniel, 4 Giff. 1; Bainbrigge v. Brown, 18 Ch. D. 188; Wright v. CaHer, [1903] 1 Ch. 27. (y) Archer v. Hudson, 7 Beav. 551; Maitland v. Irving, 15 Sim. 437 ; Maitland v. Backhouse, 16 Sim. 68; Kempson v. Ashbee, L. E. 10 Ch. 15. (z) Holman v. Loynes, 4 De G. M. & G. 270; Savery v. King, 5 H. L. C. 627; Corley v. Lord Stafford, 1 De G. & J. 238. (o) Wood V. Downes, 18 Ves. 126; Broun v. Kennedy, 4 De G. J. & S. 217. (b) E.g., Wood v. Downes, 18 Ves. 126; Goddard v. Carlisle, 9 Price 169; Edwards v. Meyrick, 2 Hare 68; Tomson v. Judge, 3 Drew. 306. E.J. 9 130 EQUITY JUEISPRUDENCE. [CH. VII. uninfluenced act of the client (c), and that in the matter of a sale the legal adviser imparted to his client all the information the legal adviser in fact possessed, or which the client had a right to expect, if he had been advised by a skilled independent adviser (d). In the case of testamentary gifts, this purely equitable rule is inapplicable (e). It is still a doubtful point whether any difference exists in point of principle between gifts and purchases (/). The true explanation seems to rest in this, that courts of equity have always favoured purchasers, and refused to consider volunteers, as having a meritorious claim. It is also necessary to observe that the relationship of legal adviser and client must in fact exist in order that a transaction should be impeach- able, and this necessitates in each case the determination of a question of fact (g). § 311. On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client ; and, on the other hand, it is not necessarily void throughout, ip'SO facto. But the burden of establishing its perfect fairness, adequacy, and equity, is thrown upon the legal adviser upon the general rule, that he who bargains in a matt-er of advantage with a person placing a confidence in him, is bound to show that a reasonable use has been made of that confidence ; a rule applying equally to all persons standing in confiden- tial relations with each other (h). If no such proof is established, courts of equity treat the case as one of constructive fraud. In this respect there is said to be a distinction between the case of a solicitor and client, and that of a trustee and cestui que trust. In the former, if the solicitor, retaining his connection, contracts with his client, he is subject to the onus of proving that no advantage has been taken of the situation of the latter. But in the case of a trustee, it is not sufficient to show that no advantage has been taken; but the cestui que trust may set aside the transaction at his own option (i). The reason of this distinction, which savours somewhat of nicety, if not of subtilty, seems to be, that in the case of clients the rule is general and applicable to all contracts, conveyances, and negotiations between (c) Harris v. Tremenheere, 15 Ves. 40; Hunter v. Atkins, 3 M. & K. 113; In re Coomber; Coomher v. Coomher, [1911] 1 Ch. 723. (d) Bulkley v. Wilford, 2 CI. & F. 102; Corley v. Lord Stafford, 1 De G. & J. 238; Luddy's Trustee v. Peard, 33 Ch. D. 500; Bell v. Marsh, [1903] 1 Ch. 528. (e) Boyse v. Bossborough, 6 H. L. C. 2; Parfitt v. Lawless, L. E. 2 P. & D. 462 : Baudains v. Richardson, [1906] A. C. 169. (/) See Holman v. Loynes, 4 De G. M. & G. 270; Morgan v. Minett, 6 Ch. D. 638; In re Haslam and Hier-Evans, [1902] 1 Ch. 765. ig) Goddard v. Carlisle, 9 Price, 169; Austin v. Chambers, 6 CI. & P. 1; Carter v. Palmer, 8 CI. & P. 657; Edwards v. Meyrick, 2 Hare 60; Holman v. Loynes, 4 De G. M. & G. 270; Guest v. Smythe, L. E. 5 Ch. 551; Allison v. Clavhills, 97 L T 709. (h) Gibson v. Jeyes, 6 Ves. 278; Montesquieu v. Sandys, 18 Ves. 313; Dent v. Bennett, 4 M. & Cr. 269; CaHer v. Palmer, 8 CI. & P. 657. (t) Cane v. Lord Allen, 2 Dow 289, 299. § 311 — 313.] CONSTRUCTIVE FRAUD. 131 the solicitor and client, and is not limited to the property about which the solicitor is retained, or the suit in which he is acting. In the case of a trustee, the rule giving the cestui que trust an option, is limited to the purchase of the first property, and as to other property it would seem that the rule is the same as in other fiduciary relations, that is, at most, it only shifts the burden of proof from the seller to the buyer, to show the entire fairness of the transaction; or leaves the seller to establish presumptively, that there has been some irregularity in the bargain, or some influence connected with the relation under which it has been made. § 312. Thus, if a conveyance is obtained by a solicitor from a client, it will be set aside as obtained by undue influence, and the property will stand charged in the hands of the solicitor with the sums of money actually expended by him (k), or which he can show to be justly due (I), but subject to the charge the property is deemed the property of the client. So, also, where a solicitor's clerk, who was censulted by a lady in regard to a mortgage on her estate, by means of the knowledge thus acquired, was enabled to purchase the mortgage at much less than its amount, it was held that the lady was entitled to the benefit of the bargain (m). And where the solicitor becomes the purchaser of an estate of his client, the burden of sustaining it, at least within twenty years, is upon him ; and it has been said by eminent judges, that the same weight ought not to be given to the lapse of time, during the continuance of the relation of attorney and client, as in other cases (n-). Where the solicitor proposes to take any contract from his client for compensation, beyond what the law pro- vides, or in a different form more advantageous to himself, it is his ' ' bounden duty ' ' to inform his client, that the law allows no such charge (o). § 313. Indeed, the general principle is so well established, that Lord Eldon, on one occasion, said: "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, purporting to be bounty for the execution of an antecedent duty " (p). But, where the relation is completely dissolved, and the parties are no longer Under the antecedent influence, but deal with each other at arm's length, there is no ground to apply the principle, and they (k) Jones v. Thomas, 2 Y. & C. Ex. 498; Lewis v. Hillman, 3 H. L. C. 607. (l) Lawless v. Mansfield, 1 Dr. & War. 557; Thomas v. Lloyd, 3 Jnr. N.S. 288; Gresley v. Mousley, 3 De &. F. & J. 433. (m) Hobday v. Peters, 28 Beav. 349. (n) Gresley v. Mousley, 4 De G. & J. 78. (o) Bulkley v. Wilford, 2 CI. & F. 102; Rhodes v. Bate, L. E. 1 Ch. 257; Coch- bum V. Edwards, 18 Ch. 449. (p) Hatch V. Hatch, 9 Ves. 296, 297. 132 EQUITY JURISPRUDENCE. [CH. VII. stand upon the rights and duties common to all other persons (g). And the __same rule will or may apply, where the transaction is totally disconnected with the relation, and concerns objects and things not embraced in, or affected by, or dependent upon, that relation (r); and there is an absence of all other circumstances, which may create a just suspicion as to the integrity and fairness of the transaction. § 314. Similar considerations apply to the case of a medical adviser and his patient (s). For it would be a meagre sort of justice to say that the sort of policy which has induced the court to interfere between client and solicitor, should be restricted to such cases; since as much mischief might be produced, and as much fraud and dis- honesty be practised, if transactions were permitted to stand, which arose betwen parties in equally confidential relations. § 315. In the next place, the relation of principal and agent. This is affected by the same considerations as the preceding, founded upon the same enlightened public policy (f). In all cases of this sort- the principal contracts for the aid and benefit of the skill and judgment of the agent, and the habitual confidence reposed in the latter, make all his acts, and statements possess a commanding influence over the former. Indeed, in such cases, the agent too often so entirely misleads the judgment of his principal that, while he is seeking his own peculiar advantage, he seems but consulting the advantage and interest of his principal; placing himself in the odious predicament so strongly stig- matized by Cicero : " Totius autem injustitise nulla capitalior est, quam eorum, qui, cum maxime fallunt, id agunt, ut viri boni esse vide- antur " (u). It is, therefore, for the common security of all mankind, that gifts 'procured by agents, and purchases made by them, from their principals, should be scrutinized with a close and vigilant suspicion. And, indeed, considering the abuses which may attend any dealings of this sort between principals and agents, a doubt has been expressed whether it would not have been wiser for the law in all cases to have prohibited them ; since there must almost always be a conflict between duty and interest on such occasions. Be this as it may, it is very certain that agents are not permitted to become secret vendors or purchasers of property which they are authorized to buy or sell for their principals (x) ; or, by abusing their confidence, to acquire unreasonable iq) Gibson v. Jeyes, 6 Yes. 277 ; Guest v. Smythe, L. E. 5 Ch. 551 ; Bell v. Marsh, [1898] 1 Ch. 212; Allison v. Clayhills, 97 L. T. 709. (r) Montesquieu v. Sandys, 18 Ves. 313; Jones v. Thomas, 2 Y. & Coll. Ex. 498. (s) Dent V. Bennett, i Myl. & Or. 269; Gibson v. Russell, 2 Y. & Coll. Ch. 104; Billage v. Southee, 9 Hare 534. (t) Benson v. Heathorn, 1 Y. & Coll. Ch. 326. (u) Cic de Offic. Lib. 1, ch. 13. (x) Lewis V. Hillman, 3 H. L. C. 607 ; Kimber v. Barber, L. B. 8 Ch. 56; Hoohe- foucauld V. Boustead, [1897] 1 Ch. 196; Att.-Gen. {Canada) v. Standard Trust Co. of N. y., [1911] A. C. 498. I 314 — 317.] CONSTRUCTIVE FRAUD. l33 gifts or advantages {y) ; unless known and sanctioned by the prin- cipal (z); or, indeed, to deal validly with their principals in any case, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage, or imposition (zz). § 316. Upon these principles, if an agent sells to his principal his own property, as the property of another, without disclosing the fact, the bargain, at the election of the principal, will be held void (a). So, if an agent, employed to purchase for another, purchases for himself, he will be considered as the trustee of his employer (b). Therefore, if a person is employed as an agent, to purchase up a debt of his employer, he cannot purchase the debt upon his own account, for he is bound to purchase it at as low a rate as he can ; and he would otherwise be tempted to violate his duty (c). The same rule applies to a surety, who purchases up the debt of his principal (d). And, there- fore, in each case, if a purchase is made of the debt, the sigent or surety can entitle himself, as against his principal, to no more than he has actually paid for the debt. So, if an agent discover a defect in the title of his principal to land, he cannot misuse it to acquire a title for himself; if he do, he will be held a trustee for his principal (e). § 317. In the next place, as to the relation of guardian and ward. In this most important and delicate of trusts the same principles prevail, but with an important modification. A guardian is not bound to a strict account of moneys received by him for the maintenance of an infant; it is sufficient if he has substantially complied with his duty to maintain the infant (/). It is obvious that, during the existence of the guardianship, where the ward is necessarily a minor, the transac- tions between the guardian and the ward cannot be binding upon the latter. But courts of equity will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, and the relation become thereby actually ended, if the intermediate period be short, unless the circumstances demon- strate, in the highest sense of the terms, the fullest deliberation on the part of the ward, and the most abundant good faith (uberrima fides) iy) Fawcett v. Whitehouse, 1 Eu33. and M. 132; Boston Deep Sea Fishing Go. v. Ansell, 39 Ch. D. 339; Powell v. Evans, Jones £ Co., [1905] 1 K. B. 11. See also Illegal Commissions Act. (z) Great Western Insurance Co. v. Cunlijfe, L. E. 9 Ch. 525; Baring v. Stanton, 3 Ch. D. 502; Williamson v. Hine, [1891] 1 Ch. 390"; Stubbs v. Slater, [1910] 1 Ch. 632. (zz) Coles V. Trecothick, 9 Ves. 246; Mpntesquieu v. Sandys, 18 Ves. 302; Hay's Case, L. B. 10 Ch. 593. (a) Tyrrell v. Bank of London, 10 H. L. C. 26. (b) Lees v. Nuttall, 1 Euss. & Myl. 53; Rochefoucauld v. Boustead, [1897] 1 Ch. 196. See In re Finlay, Wilson d Co. v. Finlay, [1913] 1 Ch. 565. (e) Carter v. Palmer, 8 CI. & F. 657 ; Lawless v. Mansfield, 1 Dr. & War. 557. (d) Reed v. Norris, 2 Myl. & Cr. 361. (e) Bulkley v. Wilford, 2 CI. & P. 102. (/) Leach v. Leach, 13 Sim. 804; In re Evans; Welch v. Channell, 26 Ch. D. 58; Of. Strangways v. Read, [1898] 2 Ch. 419. 134 EQUITY JUEISPRDDBNCB. [CH. VII. on the part of the guardian. For, in all such cases, the relation is still considered as having an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attached to the situation have not ceased ; as, if the accounts between the parties have not been fully settled, or if the estate still remains in some sort under the control of the guardian (g). § 320. In the case to which these principles have been applied, in order to set aside grants and other transactions between guardian and ward, two circumstances of great importance have generally concurred : first, that the grants and transactions have taken place immediately upon the ward's attaining age; and, secondly, that the former influence of the guardian has been demonstrated to exist to an undue degree; or, in other words, that the parties have not met upon equal terms. If, therefore, the relation has entirely ceased, not merely in name but in fact, and if sufficient time has elapsed to put the parties in complete independence as to each other; and if a full and fair settlement of all transactions growing out of the relation has been made, there is no objection to any bounty or grant conferred by the ward upon his guardian (h). Indeed, in such cases, it is only the performance of a highly moral duty, recommended as well by law as by natural justice. § 321. In the next place, with regard to the relation of trustee and cestui que trust, or rather beneficiary, or fide-commissary, as we could wish the person beneficially interested might be called, to escape from the awkwardness of a barbarous modification of a foreign idiom (i). In this class of cases the same principles govern as in cases of guardian and ward, with at least as much enlarged liberality of application, and upon grounds quite as comprehensive. Indeed, the cases are usually treated as if they were identical (fe). A trustee is never permitted to partake of the bounty of the party for whom he acts, (g) Hatch v. Hatch, 9 Ves. 292; Revett v. Harvey, 1 Sim. & St. 502; Wedderburn V. Wedderburn, 4 M. & Cr. 41; Kempson v. Ashbee, L. K. 10 Ch. 15. (h) Hylton v. Hyltort, 2 Ves. Sen. 547, 549. (t) The phrase cestui que trust is a barbarous Norman law French phrase ; and is so ungainly and ill adapted to the English idiom, that it is surprising that the good sense of the English legal profession has not long since banished it, and substituted some phrase in the English idiom, furnishing an analogous meaning. In the Roman law the trustee was commonly called hceres fiduciarius ; and the cestui que trust, hceres fidei commis sarins, which Dr. Halifax has not scrupled to translate fide-committee (Halifax, Anal, of Civil Law, ch. 6, § 16, p. 34 ; id. ch. 8, § 2, 3, pp. 45, 46). I prefer fide-commissary, as at least equally within the analogy of the English language. But beneficiary, though a little remote from the original meaning of the word, would be a very appropriate word, as it has not, as yet, acquired any general use in a different sense. Hceres fidei commissarius was sometimes used in the civil law to denote the trustee. See Vicat, Vocab. voce Fidei commissarius. The French law calls the cestui que trust, fidei commissaire. See Perrifere, Diet. t>oce fidei commissaire. Merlin, E^pertoire voce Substitution, et substitution fidei commissaire. Dr. Brown uses the word fidei-commissary (1 Brown, Civil Law, 190, note). (fc) Hatch V. Hatch, 9 Ves. 292, 296, 297; Bulkely v. Wilford, 2 CI. & P. 102, 177 to 183; ante, § 317, 320. § 320 322.] CONSTRUCTIVE FRAUD. 135 except under circumstances which would make the same valid, if it were a ease of guardianship; that is, a trustee may purchase of his cestui que trust, provided there is a distinct and clear contract, ascer- tained to be such, after a jealous and scrupulous examination of all the circumstances; and it is clear that the cestui que trust intended that the trustee should buy ; and there is no fraud, no concealment, and no advantage taken by the trustee of information aequijred by him as trustee. But it is difficult to make out such a case, where the excep- tion is taken, especially where there is any inadequacy of price or any inequality in the bargain (I). And therefore, if a trustee, though strictly honest, should buy for himself an estate of his cestui que trust, and then should sell it for more, according to the rules of a court of equity, from general policy, and not from any peculiar imputation of fraud, he would be held still to remain a trustee to all intents and purposes, and not to be permitted to sell to or for himself (w). § 322. But we are not to understand, from this last language, that, to entitle the cestui que trust to relief, it is indispensable to show that the trustee has made some advantage, where there has been a purchase by himself; and that, unless some advantage has been made, the sale of the trustee is good. That would not be putting the doctrine upon its true ground, which is, that the prohibition arises from the subsisting relation of trusteeship. The ingredient of advantage made by him would only go to establish, that the transaction might be open to the strong imputation of being tainted by imposition or selfish cunning. But the principle applies, however innocent the purchase may be in a given case. It is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to decide, that the trustee has made a bargain advantageous to himself. The fact may be so; and yet the party not have it in his power distinctly and clearly to show it. There may be fraud, and yet the party not be able to show it. It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come at his own option, and, without showing essential injury, to insist upon having the experiment of another sale, or to compel the trustee to reconvey the estate to himself on repayment of the purchase-money with 4 per cent, interest. So that in fact, in all cases where a purchase has been made by a trustee on his own account of the estate of his cestui que trust, although sold at public auction, it is in the option of the cestui que trust to set aside the sale, whether bond fide made or not (n). So a trustee will not be permitted to obtain any profit or advantage to (!) Coles V. Trecothick, 9 Ves. 246; Benningfield v. Baxter, 12 App. Cas. 167; Williams v. Scott, [1900] A. C. 499. (to) See Fox v. Mackreth, 2 Bro. C. C. 400; 2 Cox, 158, 320; 4 Bro. P. C. 258. (n) Campbell v. Walker, 5 Ves. 678; 13 Ves. 601; Ex parte Lacey, 6 Ves. 625; Morse v. Royal, 12 Ves. 355. 136 EQUITY JURISPRUDENCE. [CH. VII. himself in managing the concerns of the trust, but whatever benefits or profits are obtained will belong exclusively to the cestui que trust; but the trustee is entitled to retain a collateral profit, although it is acquired by him in consequence of his appointment (o). In short, it may be laid down as a general rule, that a trustee is bound not to do anything which can place him in a position inconsistent with the interests of the trust, or which has a tendency to interfere with his duty in discharging it (p). And this doctrine applies, not only to trustees strictly so called, but to other persons standing in like situation ; such as trustees and solicitors of a bankrupt estate, who are never permitted to become purchasers at the sale of the bankrupt estate (g). Further, a person in a fiduciary position is not permitted to purchase up the debts of his beneficiaries on his own account; but, whatever advantage is thus derived by him by purchases at an undue value, is for the common benefit of the estate (?■). Indeed, the doctrine may be more broadly stated ; that executors or administrators will not be permitted, under any circumstances, to derive direct personal benefit from the manner in which they transact the business, or manage the assets, of the estate. And if a trustee misapply the funds of his cestui que ti'ust or beneficiary, and purchase a judgment or other security therewith, the latter has an election to take such judgment or security, or to call upon the trustee to make good the original fund. § 323. There are many other cases of persons, standing, in regard to each other, in the like confidential relations, in which similar principles apply. Among these may be enumerated the cases which arise from the relation of penitent and spiritual adviser (s), and per- haps of master and servant (i). But it would occupy too much space to go over them at large ; and most of them are resolvable into the principles already commented on. On the whole, the doctrine may be generally stated that wherever confidence is reposed, and one party has it in his power, in a secret manner for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage («)• § 323 (a.) Since the author wrote, a pertinent illustration has been afforded by the case of joint stock companies. Generally speaking, a (o) Kirkman v. Booth, 11 Beav. 273; In re Barber, Burgess v. Vinnicorne, 34 Ch. D. 77; In re Dover Coalfields Extension, Lim., [1908] 1 Ch. 65; In re Lewis, Lewis V. Lewis, 103 L. T. 495; Bath v. Standard Land Co., [1911] 2 Ch. 618. (p) Hamilton v. Wright, 9 CI. & F. 111. (g) Ex parte Lacey, 6 Ves. 625; Ex parte James, 8 Yes. 337; Ex parte Bennett, 10 Ves. 381. (r) Pooley v. Quilter, 2 De G. & J. 327. (s) Huguenin v. Baseley, 14 Ve9. 273; Allcard v. Skinner, 36 Ch. D. 145; Morley V. Loughman, [1893] 1 Ch. 736. (t) Nantes v. Corrock, 9 Ves. 182; Consett v. Bell, 1 Y. & C. Ch. 569; Bate v. Bank of England, 9 Jur. 545; Gibson v. Russell, 2 Y. & C. Ch. 104. (u) Dent V. Bennett, 4 M. & Cr. 269. § 323 326.] CONSTRUCTIVE FRAUD. 137 director stands in a fiduciary position to the company (x), and cannot retain a profit made by him, but the constitution of the company may permit him to do so {y}, and even to override the wishes of the majority of the shareholders (2), and in any event he can exercise his individual rights as a corporator (a). Promoters are also bound to the fullest disclosure (b). The term promoter has been defined as " a term not of law, but of business, usefully summing up in a single word a number of business operations familiar to the commercial world by which a company is generally brought into existence " (c). § 324. The case of principal and surety may also, as a striking illustration of this doctrine, be briefly referred to. The contract of suretyship imports entire good faith and confidence between the parties in regard to the whole transaction. Any concealment of material facts, or any express or implied misrepresentation of such facts, or any undue advantage taken of the surety by the creditor, either by surprise or by withholding proper information, will undoubtedly furnish a sufficient ground to invalidate the contract. Upon the same ground, the creditor is, in all subsequent transactions with the debtor, bound to equal good faith to the surety. If any stipulations, therefore, are made between the creditor and the debtor which are not com- municated to the surety, and are inconsistent with the terms of his contract, or are prejudicial to his interests therein, they will operate as a virtual discharge of the surety from the obligation of his con- tract (d). And, on the other hand, if any stipulations for additional security or other advantages are obtained between the creditor and the debtor, the surety is entitled to the fullest benefit of them (e). § 325. Indeed, the proposition may be stated in a more general form ; that if a creditor does any act injurious to the surety or incon- sistent with his rights, or if he omits to do any act, when required by the surety, which his duty enjoins him to do, and the omission proves injurious to the surety, in all such cases the latter will be discharged, and he may set up such conduct as a defence to any suit brought against him in equity. § 326. It is upon this ground, that if a creditor, without any com- munication with the surety, and assent on his part, should afterwards enter into any new contract with the principal, inconsistent with the (x) Imperial Mercantile Credit Association v. Coleman, L. E. 6 H. L. 189 ; Cavendish Bentinck v. Fenn, 12 App. Gas. 652. (y) Costa Rica Ry. v. Forwood, [1901] 1 Ch. 746. (z) Quin & Axtens, Ltd. v. Salmon, [1909] A. C. 442. (a) North West Transportation Co. v. Beatty, 12 App. Gas. 589. (b) Erlanger v. New Sombrero Co., 3 App. Gas. 1218; Emma Silver Mining Co. v. Orard, 11 Gh. D. 918; Lagunas Nitrate Co. v. Lagunas Syndicate, [1899] 2 Ch. 392. (c) Bowen, J., Waley Bridge Co. v. Green, 5 Q. B. D. 109; see also Lindley, L.J., Lydney * Wigpool Iron Ore Co. v. Bird, 33 Ch. D. 85. (d) Pidcoek v. Bishop, 3 B. & C. 605 ; Bonar v. Macdonald, 3 H. L. C. 226. (e) Pearl v. Deacon, 1 De G. & J. 461. 138 EQUITY JURISPRUDENCE. [CH. VII. former contract, or should stipulate, in a binding manner, upon a sufficient consideration, for further delay and postponement of the day of payment of the debt, that will operate in equity as a discharge of the surety (/). But it is not every alteration of his position by the act of the creditor, which will discharge the surety. To have this, effect, the alteration must be such as interferes for a time with his remedies against the principal debtor (g). And where the creditor, in, making the arrangement with the principal to give time, or other- wise vary the strict enforcement of the letter of the contract, reserves, his rights against the surety, although without communicating this fact to the surety, it will not operate as a release of the surety (h). But there is no positive duty incumbent on the creditor to prosecute measures of active diligence ; and, therefore, mere delay on his part (at least if some other equity does not interfere), unaccompanied by any valid contract for such delay, will not amount to laches, so as to discharge the surety (i). Oil the other hand, if the creditor has any security from the debtor, and he parts with it, without communication with the surety, or by his gross negligence it is lost, that will operate, at least to the value of the security, to discharge the surety (fe). And even where done under a misapprehension, the consequences must fall upon the person who did the act (I). It is immaterial in what character the parties contracted originally. The moment the creditor has notice that the relation of the parties inter se is that of principal and surety, he must, in his subsequent dealings, respect the true contract between the other parties {m). § 327. Sureties also, are entitled to come into a court of equity, after a debt has become due, to compel the debtor to exonerate them from their liability, by paying the debt; or sue in the creditor's name, and collect the debt from the principal, if he will indemnify the creditor against the risk, delay, and expense of the suit («.). And they have a clear right, upon paying the debt to the principal, to be substituted in the place of the creditor, as to all securities held by the latter for the debt, and to have the same benefit that he would have therein (o). This, however, is not the place to consider at large the general rights (/) Rees V. Berrington, 2 Yes. Jun. 540; Bonar v. Macdonald, 3 H. L. C. 226 j Perry v. National Provincial Bank of England, [1910] 1 Ch 464. (g) Tucker v. Laing, 2 K. & J. 745. ih) Webb V. Hewitt, 3 K. & J. 338; Green v. Wymer, L. E. 4 Ch. 204. (i) Wright v. Simpson, 6 Ves. 734; Heath v. Hay, 1 Y. & Jer. 434; Carter v. White, 25 Ch. D. 666. (k) Mayhew v. Crickett, 2 Swanst. 185, 191, and note (a); Stirling v. Forrester, 2 Bli. 575. (0 Lord Eldon, in Ex parte Wilson, 11 Ves. 410. (m) Rouse v. Bradford Banking Co., [1894] A. C. 586. (n) Wooldridge v. Norris, L. E. 6 Eq. 410; Ascherman v. Tredegar Dry Dock Co., [1909] 2 Ch. 401. (o) Bowker v. Bule, 1 Sim. N. S. 29; Berridge v. Berridge, 44 Ch. D 168- Gee v Liddell, [1913] 2 Ch, 62, § 327 — 331.] CONSTRUCTIVE FRAUD. 139 and duties of persons standing in the relation of creditors, debtors, and sureties; and we shall have occasion again to advert to the subject, when considering the marehalling of securities in favour of sureties (p). § 328. Let us now pass to the consideration of the third class of constructive frauds, combining, in some degree, the ingredients of the others, but prohibited mainly, because they unconseientiously com- promit, or injuriously affect, the private rights, interests, or duties of the parties themselves, or operate substantially as frauds upon the private rights, interests, duties, or intentions of third persons. § 329. With regard to this last class, much that has been already stated, under the preceding head of positive or actual fraud, as to unconscionable advantages, overreaching, imposition, undue influence, and fiduciary situations, may well be applied here, although certainly with diminished force, as the remarks there made did not turn ex- clusively upon constructive fraud. § 330. To this same class may also be referred many of the cases arising under the Statute of Frauds, which requires certain contracts to be in writing, in order to give them validity, or to be proved by written evidence. In the construction of that statute, a general prin- ciple has been adopted, that, as it is designed as a protection against fraud, it shall never be allowed to be set up as a protection and support of fraud. The Court of Chancery, in its later days, disclaimed, and the High Court disclaims, any jurisdiction to grant relief upon the ground that there is no writing ; but the court has granted relief where a party has by fraud prevented written evidence being produced, as if an heir should prevent an ancestor executing a will, as the statute required, under sections which are now replaced by the Wills Act, 1837 (q) ; or if a party to a contract should obtain the suppression of a written document by fraud or imposition (r) ; and there may be other instances, but short of fraud there is nothing inequitable in relying upon an unrepealed statute (s). § 331. And, here; we may apply the remark, that the proper jurisdiction of courts of equity is to take every one's act, according to conscience, and not to suffer undue advantage to be taken of the strict forms of law, or of positive rules. Hence it is, that, even if there be no proof of fraud or imposition; yet, if upon the whole cir- cumstances, the contract appears to be grossly against conscience, or grossly unreasonable and oppressive, courts of equity will sometimes interfere and grant relief (t) ; although they certainly are very cautious of interfering, unless upon very strong circmstances. But the mere fact that the bargain is a very hard or unreasonable one, is not, (p) Post, § 499. 502, 637. (q) Viscountess Montacute v. Maxwell, 1 P. Wms. 616. (r) Mallet v. Halfpenny, cited Free. Ch. at p. 404. (s) Wood V. Midgley, 5 De G. M. & G. 41. (t) Bowes V. Heaps, 3 Ves. & B. 117. 140 EQUITY JURISPRUDENCE. [CH. VII. generally, sufficient, per se, to induce these courts to interfere (m). And, indeed, it will be found that there are very few cases not infected with positive or actual fraud, in which they do interfere, except where the parties stand in some very peculiar predicament, and in some sort, under the protection of the law, from age, or character, or relationship (a;). § 333. But the great class of cases, in which relief is granted, under this head, is where the contract or other act is substantially a fraud upon the rights, interests, duties, or intentions of third persons. And, here, the general rule is, that particular persons, in contracts, and other acts, shall not only transact bond fide between themselves but •shall not transact malA fide in respect to other persons, who stand in such a relation to either, as to be afiected by the contract or the con- sequences of it (j/). And, as the rest of mankind, besides the parties contracting, are concerned, the rule is properly said to be governed by public utility (z). § 334. It is upon this ground, that relief has been constantly .granted, in what are called catching bargains with heirs, reversioners, and expectants, during the life of their parents or other ancestors (zz). Many, and, indeed, most of these cases (as has been pointedly re- marked by Lord Hardwicke), " have been mixed cases, compounded of almost every species of fraud ; there being sometimes proof of actual fraud, which is always decisive. There is always fraud presumed or inferred from the circumstances or conditions of the parties contracting, from weakness on one side and usury on the other, or extortion or advantage taken of that weakness. There has always been an appear- ance of fraud from the nature of the bargain, even if there be no proof of any circumvention, but merely from the intrinsic unconscionabl&ness of the bargain. In most of these cases have concurred deceit and illu- sion on other persons, not privy to the fraudulent agrement. The father, ancestor, or relation from whom was the expectation of the estate, has been kept in the dark. The heir or expectant has been kept from disclosing his circumstances, and resorting to them for advice, which might have tended to his relief, and also reformation. This mis- leads the ancestor, who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons, who have divided the spoil beforehand " (a). § 335. Strong as this language may appear, it is fuUy borne out hj the general complexion of the cases in which relief has been afforded. (u) White v. Damon, 7 Ves. 30 ; Harrison v. Guest, i De G. M. & Gr. 424. (x) See Huguenin v. Baseley, 14 Ves. 271; Davis v. Duke of Marlborough, 2 ■Swanst. 149, and note (a); O'Rorke v. BoUnghroke, 2 App. Caa. 822. (y) Per Lord Hardwicke, in Earl of Chesterfield v. Janssen, 2 Ves. Sen. 156, 157. (z) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 156, 157. {zz) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125 ; Nevill v. Snelling, 15 Ch. D. 679. (o) Lord Hardwicke, in Earl of Chesterfield v. Janssen, 2 Ves. Sen. 157. § 333 — 335a-.] constructive fraud. 141 Actual fraud, indeed, has not unfrequently been repelled (b). Belief is granted, not only in the case of sales (c), and mortgages (d), where the security is tangible, but to post obit bonds (e), and also to those cases where the lender hoped to be able " to put the screw on " by enforcing his security (/). Next, the parties seeking relief need not be young, rash, -or dissolute ; parties aged thirty-eight and also thirty years respectively have successfully invoked the rule (g). "It is not every bargain which distress may induce one man to offer, that another is at liberty to accept " {h). The jurisdiction to relieve against improvidence is saved by section 1, sub-section 6 of the Moneylenders Act, 1900, which, as amended by the Moneylenders Act, 1911, enables the court to grant extended relief in transactions with moneylenders (i). § 335a. The doctrines held by courts of equity as to the require- ments necessary to make a sale of reversionary interests valid, were so severe that it became needful for the legislature to interfere, and accord- ingly, the Sales of Eeversions Act, 1868 (31 & 32 Vict. c. 4) was passed, which enacted that " no purchase, made bond fide and without fraud or unfair dealing, of any reversionary interest in real or personal estate should thereafter be opened or set aside merely on the ground of undervalue ' ' (section 1) ; and it was provided further that under the word " purchase " should be included every kind of contract, con- veyance, or assignment, under or by which any beneficial interest in any kind of property should be acquired. Now it will be observed that although undervalue is not per se sufficient, it may yet be used as evidence of unfair dealing upon which the court of chancery based its title to relief (k). In addition to this there must be no fraud or unfair dealing. In relation to this enactment it has been said that " these changes of the law have in no degree whatever altered the onus probandi in those cases, which, according to the language of Lord Hardwicke, raise, ' from the circumstances or conditions of the parties contracting (weakness on one side, usury on the other, or extortion, or advantage taken of that weakness), a presumption of fraud.' Fraud does not here mean deceit or circumvention; it means an uncon- scientious use of the power arising out of these circumstances and conditions; and when the relative position of the parties is such as prima faeie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the (b) Peacock v. Evans, 16 Ves. 512 ; Bowes v. Heaps, 3 Ves. & B. 117. (c) Baker v. Monk, i De G. J. & S. 388; Fry v. Lane, 40 Ch. D. 312; Rees v. De Bernardy, [1896] 2 Ch. 437. (d) Bromley v. Smith, 26 Beav. 644; James v. Kerr, 40 Ch. D. 449. (e) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125. (/) Nevill V. SnelUng, 15 Ch. D. 679. (g) Bromley v. Smith, 26 Beav. 644; Brenchley v. Higgins, 70 L. J. Ch. 788. (h) Grant M.E., Bowes v. Heaps, 3 Ves. & B. 117. (i) Samuel v. Newbold, [1906] A. C. 461. (k) O'Rorke v. Bolingbroke, 2 App. Cas. 814 ; Fry v. Lane, 40 Ch. D. 312. 142 EQUITY JURISPRUDENCE. [CH. VII. presumption by contrary evidence proving it to have been, in point of fact, ' fair, just, and reasonable.' " (l). Formerly, a sale by auction was prima facie evidence of the true value, vs'hile a sale by private contract vi'as deemed to afford no criterion of vedue (m). § 3356. It should be further* observed, that if the expectant heir or other person similarly defrauded be an infant, no question as to the validity of contracts for the repayment of money lent to them can arise, for by the Infants' Belief Act, 1874 (37 & 88 Vict. c. 62), it is enacted that all contracts, whether by speciality or by simple contract, thenceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), shall be absolutely void. § 339. The whole doctrine of courts of equity, with respect to expectant heirs and reversioners, and others in a like predicament, assumes that the one party is defenceless, and is exposed to the demands of the other under the pressure of necessity. It assumes, also, that there is a direct or implied fraud upon the parent or other ancestor, who, from ignorance of the transaction, is misled into a false confidence in the disposition of his property. Hence it should seem, that one material qualification of the doctrine is, the existence of such ignorance. If, therefore, the transaction has been fully made known at the time to the parent, or other person standing in loco parentis {n), as, for example, to the person from whom the spes su&ces- sionis is entertained, or after the expiration of whose present estate the reversionary interest is to become vested in possession, and it is not objected to by him, the extraordinary protection, generally afforded in cases of this sort by courts of equity, will be withdrawn. A fortiori, it will be withdrawn, if the transaction is expressly sanctioned or adopted by such parent or other person standing in loco parentis (o). And it has been strongly said, that it would be monstrous to treat the contracts of a person of mature age as the acts of an infant, when his parent was aware of his proceedings, and did nothing to prevent them. The parent might thus lie by, and suffer his son to obtain the assistance which he ought himself to have Tendered, and then only stand forward to aid him in rescinding engagements, which he had allowed him to make, and to profit by (p). § 340. The other qualification of the doctrine is not less important. The contract must be made under the pressure of some necessity ; for the main ground of the doctrine is, the pressure upon the heir, (l) Earl of Aylesford v. Morris, L. E. 8 Ch. 484; Brerwhley v. Higgins, 70 li. J. Ch. 788. im) Shelly v. Nash, 3 Madd. 232; Earl of Aldborough v. Trye, 7 CI. & F. 436; Jn re Slater's Trusts, 11 Ch. D. 227. (n) Tyler v. Yates, L. R. 6 Ch. 665. (o) King v. Hamlet, 4 Sim. 223; a.c. 2 Myl. & K. 456; O'Rorke v. Bolingbroke, 2 App. Cas. 814. (p) King v. Hamlet, 2 Myl. & K. 436 ; s.c. 4 Sim. 182. § 335b — 343.] constructive fraud. 148 or the distress of the party, dealing with his expectancies, who is, therefore, under strong temptations to make undue sacrifices of his future interests (g). Both of these qualifications need not, indeed, in all cases and under all circumstances, concur to justify relief. It may be sufficient, that either of them forms so essential an ingredient in the case as to give rise to a just presumption of constructive fraud (r). § 841. The doctrine of courts of equity upon this subject, if it has not been directly borrowed from, does in no small degree follow out the policy of, the Eoman law in regard to heirs and expectants. By the Macedonian decree (so called from the name of the usurer who gave occasion to it), all obligations of sons, contracted by the loan of money, while they were living in subjection to the paternal authority and jurisdiction, were declared null without distinction. And they were not allowed to be valid even after the death of the father; not so much out of favour to the son as out of odium to the creditor, who had made an unlawful loan, which was vicious in its origin as well as in its example. " Verba Senatus consulti Macedoniani hsec sunt, etc. Placere, ne cui, qui filiofamilias mutuam pecuniam dedisset, etiam post mortem parentis ejus, cujus.in potestate fuisset, actio pe,titioque daretur; ut scirent, qui pessimo exemplo fsenerarent, nullius posse filiifamilias bonum nomen, expectata patris morte, fieri " (s). Upon this decree Lord Hardwicke has remarked that the senate and law- makers in Eome were not so weak as not to know that a law to restrain prodigality, to prevent a son's running in debt in the life of his father, would be vain in many cases. Yet they made laws to this purpose, namely, the Macedonian decree already mentioned, happy if they could in some degree prevent it; Est aliquod prodire terms [t] § 342. It is upon similar principles that post obit bonds, and other securities of a like nature, are set aside when made by heirs and expectants. A post obit bond is an agreement, on the receipt of money by the obligor, to pay a larger sum, exceeding the legal rate of interest, upon the death of a person from whom he (the obligor) has some expectations, if he should survive him. Such bonds operate as a virtual fraud upon the bounty of the ancestor, and disappoint his intentions, generally by design, aad usually in the event («). § 348. A case of a very similar character is a contract by which an expectant heir, upon the present receipt of a sum of money, promises to pay over to the lender a large, though an uncertain proportion, of the property which might descend to him upon the death of his parent or other ancestor, if he should survive him. It is (g) King v. Hamlet, i Sim. 182; s.c. 2 Myl. & K. 456. (r) Earl of Portmore v. Taylor, 4 Sim. 182. (s) Dig. Lib. 14, tit. 6, f. 1. (t) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 158. («) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125. 144 EQUITY JUEISPEDDENCE. [CH. VII. a fraud upon such parent or other ancestor, and introductive of the worst public mischiefs; for the parent or ancestor is thereby induced to submit in ignorance to the disposition which the law makes of his estate, upon the supposition that it will go to his heir, when in fact a stranger is, against his will, made the substituted heir. It might be very different if there was a fair, although a secret, agreement between all the heirs to share the estate equally; for such an agree- ment would have a tendency to suppress all attempts of one or more to overreach the others, as well as to prevent all exertions of undue influence (a;). § 344. From what has been already said, it follows, as a natural inference, that contracts of this sort are not in all cases utterly void; but they are subject to all real and just equities between the parties, so that there shall be no inadequacy of price and no inequality of advantages in the bargain. If in other respects these contracts are perfectly fair, courts of equity will permit them to have effect, as securities for the sum to which ex sequo et bono the lender is entitled ; for he who seeks equity must do equity ; and, therefore, relief will not be granted upon such securities, except upon equitable terms {y). § 345. And where, after the contemplated events have occurred, and the pressure of necessity has been removed, the party freely and deliberately, and upon full information, confirms the precedent contract, or other treinsaction, or delays unduly to seek the assistance of the court, courts of equity will generally hold him bound thereby ; for if a man is fully informed, and acts with his eyes open, he may, by a new agreement, bar himself from relief (a). But if the party is still acting under the pressure of the original transaction or the original necessity, or if he is still under the influence of the original transaction, and of the delusive opinion that it is valid and binding upon him, then, and under such circumstances, courts of equity will hold him not barred from relief by any such confirmation (a). § 846. Similar principles will govern in cases where the heir or other expectant is relieved from his necessities, and becomes opposed to the person with whom he has been dealing, and seeks to repudiate the bargain. In such eases he must not do any act by which the rights or property of the other party will be injuriously affected after he is thus deemed to be restored to his general capacity. If he does, he becomes affected with the ordinary rule which governs in other cases, (x) Wethered v. Wethered, 2 Sim. 183; Hyde v. White, 5 Sim. 524; Higgins v. Hill, 56 L. T. 426. See Cook v. Field, 15 Q. B. 460. (j) Earl of Aldborough v. Trye, 7 CI. & F. 436; Benyon v. Fitch, 35 Beav. 570; Earl of Aylesford v. Morris, L. E. 8 Ch. 484. («) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125 ; Sibbering v. Earl of Balcarres, 3 De G. & Sm. 735; Lord v. Jeffkins, 35 Beav. 1; Dimsdale v. Dimsdale, 3 Drew. 556. (a) Savery v. King, 5 H. L. C. 627 ; Earl of Aylesford v. Morris, L. E. 8 Ch. 484 ; Moxon V. Payne, L. E. 8 Ch. 881. § 344 — 349.] CONSTRUCTIVE FRAUD. 145 and forbids a party to repudiate a dealing, and at the same time to avail himself fully of all the rights and powers resulting therefrom, as if it were completely valid (b). § 347. Even the sale of a post obit bond at public auction will not necessarily give it validity, or free it from the imputation of being obtained under the pressure of necessity. For the circumstances may be such as to establish that the expectant is acting without any of the usual precautions to obtain a fair price, and is in great distress for money, and is really in the hands, and under the control of those who choose to become bidders for the purpose of fleecing him (c). The case is not like the ease of an ordinary sale of a reversion at public auction, where the usual precautions are taken; for there it may be perfectly proper not to require the purchaser to show that he has given the full value (d). "Where the sale is public, and free and fair, it may be justly presumed that the fair market-price is obtained, and there seems no reason to call in question its general validity ; but it should be specially impeached. In sales of reversions at public auction, there is not usually any opportunity, as there is upon a private treaty, for fraud and imposition upon the seller. The latter is in no just sense in the power of the purchaser. The sa|le by public auction is, under ordinary circumstances, evidence of the market-price (e). But the sale of post obit bonds at auction carries with it, generally, a presumption of distress and pecuniary embarrass- ment; and if the ordinary precautions are thrown aside, there> is a violent presumption of extravagant rashness, imprudence, or circum- vention. § 348. Contracts of a nature nearly resembling post obit bonds have, in cases of young and expectant heirs, been often relieved against, upon similar principles. Thus, where tradesmen and others have sold goods to such persons at extravagant prices, and under cir- cumstances demonstrating imposition, or undue advantage, or an intention to connive at secret extravagance, and profuse expenditures, unknown to their parents, or other ancestors, courts of equity have reduced the securities, and cut down the claims to their reasonable and just amount (/). § 349. Another class of constructive frauds upon the rights, interest, or duties of third persons, embraces all those agreements and other acts of parties, which operate directly or virtually to delay, defraud, or deceive creditors. Of course, we do not here speak of (b) King v. Hamlet, 2 Myl. & K. 458 ; Savery v. King, 5 H. L. C. 627 ; Scholefield V. Templer, 4 De G. & J. 429. (c) Fox V. Wright, 6 Mad. Ill; Ear! of Aldborough v. Trye, 7 CI. & F. 436. (d) Earl of Aldborough v. Trye, 7 CI. & F. 436. (e) Shelly v. Nash, 3 Mad. 232; Fox v. Wright, 6 Mad. 77; Earl of Aldborough v. Trye, 7 CI. & F. 436; Lord v. Jeffkins, 3-5 Beav. 7. (/) Bill V. Price, 1 Vern. 467, and Mr. Eaithby's note (1); Freeman v. Bishop, 2 Atk. 39. B.J. 10 146 EQUITY JURISPRUDENCE. [CH. VII. cases of express and intentional fraud upon creditors, but of such as virtually and indirectly operate the same mischief, by abusing their confidence, misleading their judgment, or secretly undermining their interest. It is difficult, in many cases of this sort, to separate tho ingredients, which belong to positive and intentional fraud, from those of a mere constructive nature, v^hich the lavs^ pronounces fraudulent upon principles of public policy. Indeed, they are often found mixed up in the same transaction; and any attempt to distin- guish between them, or to weigh them separately, would be a task of little utility, and might, perhaps, mislead and perplex the inquiries of students. § 350. It must be a fundamental policy of all enlightened nations, to protect and subserve the rights of creditors ; and a great anxiety to afford full relief against frauds upon them has been manifested : not only in the civil law, but from a very early period in the common law also. In the civil law it was declared, that whatever was done by debtors to defeat their creditors, whether by alienation, or by other disposition of their property, should be revoked or null, as the case might require. "Ait Praetor; Quse fraudationis causa gesta erunt, cum eo, qui fraudem non ignoraverit; de his curatori bonorum, vel ei, cui de ea re actionem dare oportebit, intra annum, quo experiundi potestas fuerit, actionem dabo. Idque etiam adversus ipsum, qui fraudem fecit, servabo. Necessario Prsetor hoc edictum proposuit ; quo edicto consuluit creditoribus, revocando ea, quseeunque in fraudem eorum alienata sunt (g). Ait ergo Praetor; Quse fraudationis causa gesta" erunt. Hsec verba generalia sunt, et continent in se omnem omnino in fraudem factam, vel alienationem vel quemcunque con- tractum. Quodcunque igitur fraudis causa factum est, videtur his verbis revocari, qualecunque fuerit. Nam, latfe ista verba patent. Sive ergo rem alienavit, sive acceptitatione vel pacto aliquem liberavit (h). Idem erit probandum. Et si pignora liberet, vel quem alium in fraudem creditorum preeponat " (f). And the rule was not only applied to alienations, but to fraudulent debts, and, indeed, to every species of transaction or omission, prejudicial to creditors. " Vel ei prsebuit exceptionem, sive se obligavit fraudandorum creditorum causa, sive numeravit pecuniam, vel quodcunque aliud fecit in fraudem credi- torum; palam est, edictum locum habere, etc. Et qui aliquid fecit, ut desinat habere, quod habet, ad hoc edictum pertinet. In fraudem facere videri etiam eum, qui non facit, quod debet facere, intelli- gendum est; id est, si non utitur servitutibus " (k). § 351. Hence, all voluntary dispositions, made by debtors, upon the score of liberality, were revocable, whether the donee knew of (9) Dig. Lib. 42, tit. 8, f. 1, § 1. (/!) Dig. Lib. 42, tit. 8, f. 1, § 2. (i) Dig. Lib. 42, tit. 8, f. 2. (k) Dig. Lib. 42, tit. 8, f. 3, § 1, 2 ; id. f. 4. § 350 — 352.] CONSTRUCTIVE fraud. 147 the prejudice intended to the creditors or not. " Simili modo dicimus, et si cui donatum est, non esse queerendum, ^n sciente eo, cui donatum gestum sit; sed hoc tantum, an fraudentur creditores " (I). And the Uke rule was applied to purchasers, even for a valuable con- sideration, if they knew the fraudulent intention at the time of their purchases, and thus became partakers of it, that they might profit by it (m). " Quse fraudationis causa gesta erunt, cum eo, qui fraudem non ignoraverit, de his, etc., actionem dabo. Si debitor in fraudem creditorum minore pretio fundum scienti emptor! vendiderit; deinde hi, quibus de revocando eo actio datur, eum petant; quaesitum est, an pretium restituere debent '? Proculus existimat, omnimodi resti- tuendum esse fundum, etiamsi pretium non solvatur ; et rescriptum est secundum Proculi sententiam " (n). § 352. The common law adopted similar principles at an early period. These principles, however, have been more fully carried into effect by the statutes of 50 Edw. 3, c. 6, and 3 Hen. 7, c. 4, against fraudulent gifts of goods and chattels; by the statute of 13 Eliz. c. 5, against fraudulent conveyances of lands to defeat or delay creditors ; and by the statute of 27 Eliz. c. 4, against fraudulent or voluntary conveyances of lands to defeat subsequent purchasers. These statutes have always received a favourable and liberal interpretation in all the courts, both of law and equity, in suppression of fraud (o). Indeed, the principles and rules of the common law, as now universally known and understood, are so strong against fraud, in every shape, that Lord Mansfield has remarked, that the common law would have attained every end proposed by these statutes (p). This is, perhaps, stating the matter somewhat too broadly, at least in regard to the statute of 27 Eliz. c. 4. This statute applies to land and not to per- sonalty (q). A series of decisions had established that a settler could defeat a voluntary settlement of land by a subsequent sale for value to a third party, even if he had notice of the settlement (r). By the Voluntary Conveyances Act, 1893, however, the settlement must now be, in fact, fradulent to be invalid. Courts of equity, from the enlarged principles upon which they act, to protect the rights and interests of creditors, give full effect to all the provisions, and exert their jurisdiction upon the same construction of these statutes, which is adopted by courts of law. They even go farther ; and (as we shall (l) Dig. Lib. 42, tit. 8, f. 6, § 11. (m) Dig. Lib. 42, tit. 8, f. 1. (n) Dig. Lib. 42, tit. 8, f . 1 ; id. f. 7. (o) Cadogan v. Kennett, Cow, 432. (p) Com. Dig. Govin, B. 2. The statutes of 60 Edw. 3, c. 6, aad 3 Hen. 7, c. 4, expressly declare all gifts, &c., of goods and chattels intended to defraud creditors, to be null and void. iq) Jones v. Croucher, 1 Sim. & Stu. 315. (t) Doe V. Manning. 9 East, 59; Buckle v. Mitchell, 18 Ves. 110. 148 EQUITY JURISPRUDENCE. [CH. VII. presently see) extend their aid to many cases not reached by these statutes. § 353. And, in the first place, let us consider the nature and opera- tion of the statute of 13 Eliz. e. 5, as to creditors. The object of the legislature evidently was, to protect creditors from those frauds which are frequently practised by debtors, under the pretence of discharging a moral obligation; that is, under the pretence of making suitable provisions for wives, children, and other relations. Indepen- dently of the statute, no one can reasonably doubt that a gift or con- veyance, whiph has neither a good nor a meritorious consideration to support it, ought not to be valid against creditors ; for every man is bound to be just before he is generous (s) ; and the very fact that he makes a voluntary gift or conveyance to mere strangers to the pre- judice of his creditors, affords a conclusive evidence that it is fraudulent. The statute, while it seems to protect the legal rights of creditors against the frauds of their debtors, anxiously excepts from such imputation the bond fide discharge of moral duties. It does not, therefore, declare all voluntary conveyances to be void; but only all fraudulent conveyances to be void. And whether a con- veyance be fraudulent or not is declared to depend on its being made upon good consideration and bond- fide." It is not sufficient that it be upon good consideration or bond fide. It must be both. And, therefore, if a conveyance or gift be defective in either particular, although it is valid between the parties and their representatives, yet it is utterly void as to creditors (t). § 354. This leads us to the inquiry, what are deemed good con- siderations in the contemplation of the statute. A good consideration is sometimes used in the sense of a consideration which is valid in point of law; and then it includes a meritorious, as well as a valuable consideration. But it is more frequently used in a sense contra- distinguished from valuable; and then it imports a consideration of blood, or natural affection, as when a man grants an estate to a near relation merely founded upon motives of generosity, prudence, and natural duty. A valuable consideration is such as money, marriage, or the like, which the law esteems as an equivalent given for the grant, and it is, therefore, founded upon motives of justice (m). Deeds, made upon a good consideration only, are considered as merely volun- tary; those made upon a valuable consideration are treated as compensatory. The words " good consideration," in the statute, may be properly construed to include both descriptions; for it cannot be doubted, that it meant to protect conveyances, made bond, fide and (.s) Copis V. Middleton, 2 Mad. 428. (t) Twyne's Case, 3 Co. 81; Mathews v. Feaver, 1 Cox, 278. (u) Black. Comm. 297. § 353 — 356a.] constructive fraud. 149 for valuable consideration, as well as those made bond fide upon the consideration of blood or affection (x). § 355. In regard to voluntary conveyances, they are unquestion- ably protected by the statute in all cases, where they do not break in upon the legal rights of creditors. But when they break in upon such rights, and so far as they have that effect, they are not per- mitted to avail against those rights. If a man, therefore, who is indebted, conveys property to his wife or children, such a conveyance is, or at least may be, within the statute ; for, although the con- sideration is good, as between the parties, yet it is not, in contemplation of law, bond fide; for it is inconsistent with the good faith which a debtor owes to his creditors, to withdraw his property voluntarily from the satisfaction of their claims {y) ; and no man has the right to prefer the claims of affection to those of justice. This doctrine, how- ever (as we shall presently see), requires, or at least may admit of, some qualification in relation to existing creditors, where the circum- stances of the indebtedness and the conveyance repel any possible imputation of fraud, as where the conveyance is of a small property by a person of great wealth, and his debts bear a very small proportion to his actual means. § 356. But, at all events, the same doctrine does not apply to a man not indebted at the time, or in favour of subsequent creditors. There is nothing inequitable or unjust in a man's making a voluntary conveyance or gift, either to a wife, or to a child, or even to a stranger, if it is not, at the time, prejudicial to the rights of any other persons, or in furtherance of any meditated design of future fraud or injury to other persons (z). § 356a. It is perfectly clear, however, that the statute of 13 Eliz. renders void settlements which fraudulently withdraw assets from persons who may become creditors subsequent to its execution (a). The question to be determined in each case is the fraudulent effect of the conveyance, and this is necessarily largely a question of fact. It is impossible, therefore, to reconcile all the decisions depending upon the statute, or the language in which judges have expressed the grounds of their ruling, and still greater difficulty is presented when we strive to discovery what matters are to be regarded as circumstances of evidence and what matters are to be treated as necessary conclusions. One thing appears to be clear, and that is the increasing advantage that the creditor enjoys under the later cases. An illusory considera- (a;) Twyne's case, 3 Co. 81; Copis v. Middleton, 2 Mad. 430. (y) Ibid. (z) Townsend v. Windham, 2 Ves. Sen^ 11; Holloway v. Millard, 1 Mad. 414; Battershee v. Farrington, 1 S^anst. 106, 113. (a) Ex parte Russell, In re Butterworth, 18 Ch. D. 588; In re Ridler, Ridler v. Ridler, 22 Ch. D. 74; Ex parte Gimblett, In re Lane Fox, [1900] 2 Q. B. 508. 150 EQUITY JURISPRUDENCE. [CH. VIl. tion is not sufi&cient to save the conveyance if attacked, but it is not essential that the purchaser should shovi? that he gave the highest market value (b). § 355b. Fraud, for the purposes of the statute of 13 Eliz. c. 5, is a matter of inference. " If a person owing debts makes a settlement which subtracts from the property which is the proper fund for the payment of those debts an amount without which the debts cannot be paid, then, since it is the necessary consequence of the settlement (supposing it effectual) that some creditors must remain unpaid, it would be the duty of the judge to direct the jury that they must infer the intent of the settlor to have been to defeat or delay his creditors, and that the case is within the statute " (c). And even although the settlor is solvent at the time he makes the voluntary settlement, yet if he becomes insolvent within some short period after, the burden of proving that he was solvent at the time when he executed the settle- ment, will rest on the party who executed it, and not on the parties who seek to set it aside (d); and if the voluntary settlement is executed by a man who contemplates going into trade, or entering on a new trade, of which he has not had experience, and the issue of which he therefore knows to be uncertain, his subsequent creditors will be entitled to set the settlement aside, if in the settlement the bulk of the settlor's property is included (e). § 869. Having thus given the state of the law with regard to voluntary conveyances, we proceed to remark that a conveyance, even if for a valuable consideration, is not, under the statute of the 13 Eliz., valid in point of law from that circumstance alone. It must also be bond fide; for if it be made with intent to defraud or defeat creditors, it will be void, although there may, in the strictest sense, be a valuable, nay, an adequate, consideration. This doctrine was laid down in Twyne's case (3 Co. 81), and it has ever since been steadily adhered to. Cases have repeatedly been decided, in which persons have given a full and fair price for goods, and where the possession has been actually changed ; yet being done for the purpose of defeating creditors, the transaction has been held fraudulent, and, therefore, set aside (/). A debtor may deprive a creditor of the fruits of his judgment by way of execution by means of a sale for the full value of the goods {g). § 369b. In the next place, the statute 13 Eliz. c. 5 protects in express terms a conveyance if made " upon good consideration and (b) Muthews v. Feaver, 1 Cox 278; Copis v. Middleton, 2 Mad. 410; In re Ridler, Ridler v. Ridler, 22 Ch. T>. 74. (c) Freeman v. Pope, L. E. 5 Ch. 538. (d) Townsend v. Westacott, 2 Beav. 340; Taylor v. Coenan, 1 Ch. D. 636. (e) Maekay v. Douglas, L. E. 14 Bq. 106; Ex parte Russel, In re Butterworth, 19 Ch. D. 588. (/) Cadogan v. Kennett, Cowp. 434. (g) Wood V. Dixie, 7 Q B. 892; Hale v. Saloon Ommhus Co., 4 Drew. 492; Darvill v. Terry, 6 H. & N. 807. § 355b — 373.] constructive fraud. 151 bond fide." A settlement is validated by a purchase for value of an interest limited by it by a person who has no notice that its validity could be successfully impugned {h). § 371. It may be added that, although voluntary conveyances are or may be void as to existing creditors, they are perfect and effectual as between the parties, and cannot be set aside by the grantor, if he should become dissatisfied with the transaction (/). It is his own folly to have made such a conveyance. They are not only valid as to the gtantor, but also as to his- heirs, and all other persons claiming under him in privity of estate with notice of the fraud (k). A conveyance of this sort (it has been said, with greati truth and force) is void only as against creditors; and then only to the extent in which it may be necessary to deal with the conveyed estate for their satisfaction. To this extent, and to this only, it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditor, and the conveyance stands (I). And if a creditor is a party to such deed and acquiesces in it, he cannot afterwards avoid it; nor can any one claiming under him (tn.). Further if a man having made a. voluntary settlement of land contracts to sell it, the vendee can compel a specific performance of the contract against him, but that he, under ordinary circumstances, cannot compel specific performance against the vendee (n). But if the vendee says he is willing to complete, on getting a good title, seeing that it is in the vendee's power to obtain a good title, specific performance can be enforced against the vendee (o). § 372. The circumstances under which a conveyance will be deemed purely voluntary, or will be deemed affected by a consideration valuable in itself, or in furtherance of an equitable obligation, are very, important to be considered ; but they more properly belong to a distinct treatise upon the nature and validity of settlements. § 373. In like manner, what circumstances, connected with volun- tary or valuable conveyances, are badges of fraud, or raise presumptions of intentional bad faith, though very important ingredients in the exercise of equitable jurisdiction, fall rather within the scope of treatises on evidence, than of discussions touching jurisdiction (p). It may, however, be generally stated, that whatever would at law be deemed badges of fraud, or presumptions of ill faith, will be fully acted upon in courts of equity. But, on the other hand, it is by no means to be deemed a logical conclusion, that, because a transaction (h) Halifax Joint Stock Bank v. Gledhill, [1891] 1 Ch. 31. (j) Petre v. Espinasse, 2 Myl. & K. 496; Bill v. Cureton, 2 Myl. & K. 510. (fe) Randall v. Phillips, 3 Mason 378. (l) Sir W. Grant, in Curtis v. Price, 12 Ves. 103. (m) Oliver v. King, 8 De G. M. & G. 110. See Ex parte Taylor, Sons d Co. ; In re Brindley, [1906] 1 K. B. 377. (n) Smith v. Garland, 2 Meriv. 123. (o) Peter v. Nicolls, L. E. 11 Bq 391. (p) Twyne's case, 3 Co. 80. 152 EQUITY JUEISPEUDENCE. [CH. VII. could not be reached at law as fraudulent, therefore it would be equally safe against the scrutiny of a court of equity ; for a court of equity requires a scrupulous good faith in transactions which the law might not repudiate. It acts upon conscience, and does not content itself with the narrower views of legal remedial justice. § 374. The question has been much discussed how far a settle- ment, made after marriage, in pursuance of an asserted parol agree- ment before marriage, is valid, as against creditors, in cases affected by tte Statute of Frauds. There is no doubt, that such a settlement, made in pursuance of a prior valid written agreement, would be completely effectual against creditors. But the difficulty is, whether such a settlement, executed in pursuance of a parol contract, obliga- tory in foro conscientix , ought to be protected, when made, although it might not be capable of being enforced, if not made. Lord Thurlow seems to have favoured the view that the settlement would be valid (g) ; on the other hand we have the opposite view maintained by Sir Thomas Plumer, M.E. (?•), and Lord Cranworth (s). Certainly Lord Thurlow 's view is more consistent with the accepted interpretation that the contract exists independently of the writing, and that the Statute of Frauds is concerned only with the proof of the contract. Perhaps the true solution will follow upon the lines of lost evidence. If written proof has existed but is lost, then parol evidence may be given of the lost instrument (i), but at the ' same the evi- dence should be examined with the greatest care, and treated with suspicion (u). § 375. The same policy, of affording protection to the rights of creditors, pervaded the provisions of the statute of the 3rd and 4th of Will. & Mary, c. 14, respecting devises in fraud of creditors, now replaced by the Debts Eecovery Act, 1830, which has an enlarged scope. § 377. These cases of interposition in favour of creditors being founded upon the provisions of positive statutes, a question was made at an early day whether they were exclusively cognizable at law ; or they could be carried into effect also in equity. The jurisdiction of courts of equity is now firmly established, for it extends to cases of fraud, whether provided against by statute or not. And, indeed, the remedial justice of a court of equity in many cases arising under these statutes, is the only effectual one which can be administered; as that of courts of law must often fail from the want of adequate powers to reach or redress the mischief. § 378. There are other cases of constructive frauds against (q) Dundas v. Dutens, 1 Ves. Jun. 196. (r) Battersbee v. Farrington, 1 Swanst. 106. (s) Warden v. Jones, 2 De G. & J. 276. (t) Read v. Price, [1909] 2 K. B. 724. (u) Nichol V. Bestwick, 28 L. J. Ex. i. § 374 — 379.] CONSTRUCTIVE FRAUD. 153 creditors which the wholesome moral justice of the law has equally discredited and denounced. "We refer to that not unfrequent class of cases in which, upon the failure or insolvency of their debtors, some creditors have, by secret compositions, obtained undue advan- tages, and thus decoyed other innocent and unsuspecting creditors into signing deeds of composition, which they supposed to be founded upon the basis of entire equality and reciprocity among all the creditors ; when, in fact, there was a designed or actual imposition upon all but the favoured few. The purport' of a composition or trust-deed, in cases of insolvency, usually is, that the property of the debtor shall be assigned to trustees, and shall be collected and distributed by them among the creditors, according to the order and terms prescribed in the deed itself. And, in consideration of the assignment, the creditors, who become parties, generally agree to release all their debts beyond what the funds will satisfy. Now, it is obvious that, in all transactions of this sort, the utmost good faith is required ; and the very circumstance that other creditors, of known reputation and standing, have already become parties to the deed, will operate as a strong inducement to others to act in the same way. But if the sig- natures of such prior creditors have been procured by secret arrange- ments with them, more favourable to them than the general terms of the composition deed warrant, those creditors really act (as has been said by a very significant although a homely figure) as decoy- ducks upon the rest. They hold out false .colours to draw in others to their loss and ruin. § 379. The doctrine was familiar in courts of law, and was not peculiar to courts of equity (x), that such secret arrangements are utterly void, and ought not to be enforced, even against the assenting debtor, or his sureties, or his friends (y). There is great wisdom and deep policy in the doctrine, and it is founded in the best of all protec- tive policy, that which acts by way of precaution rather than by mere remedial justice ; for it has a strong tendency to suppress all frauds upon the general creditors by making the cunning contrivers the victims of their own illicit and clandestine agreements. The relief is granted not for the sake of the debtor, for no deceit or oppression may have been practised upon him, but for the sake of honest, and humane, and unsuspecting creditors. And, hence, the relief is granted equally, whether the debtor has been induced to agree to the secret bargain by the threats or oppression of the favoured creditors, or whether he has been a mere volunteer, offering his services, and aiding in the intended deception. Such secret bargains are deemed incapable of being enforced or confirmed, but money paid under them is not recoverable back, except under the provisions of the Bankruptcy Acts, (x) Cockshott V. Bennett, 2 T. E. 763. (y) Jackman v. Mitchell, 13 Ves 581; CuUingworth v. Lloyd, 2 Beav. 885; Ex parte Milner, In re Milner, 15 Q. B. D. 605. 154 EQUITY JURISPRUDENCE. [CH. VII. as a fraudulent preference, as it is a voluntary payment (a). And it is wholly immaterial whether such secret bargains give to the favoured creditors a larger sum, or an additional security or advantage, or only misrepresent some important fact; for the effect upon other creditors is precisely the same in each of these cases. They are misled into an act to whict they might not otherwise have assented (a). The trans- action is void whether the collateral advantage is extorted from the debtor, or is provided by a third party (b). The principle only applies to cases of collective bargaining on the footing of equality ; a creditor may make an independent bargain with a debtor who is seeking to compromise the claims of his creditors individually (c). § 380. In equity, any agreement, made by a bankrupt debtor in fraud of his creditors, will be held void, and will be rescinded, upon the ground of public policy, whenever it comes before a court of equity, even though the suit happens to be at the instance of the insolvent himself (d), unless the objection appears on the face of the instru- ment (e). § 381. In concluding this discussion, so far as it regards creditors, it is proper to be remarked, that although voluntary and other con- veyances, in fraud of creditors, are thus declared to be utterly void; yet, they are so, only so far as the original parties and their privies, and others claiming under them, who have notice of the fraud, are concerned. For bond fide purchasers for a valuable consideration, without notice of the fraudulent or voluntary grant, are of such high consideration, that they will be protected, as well at law as in equity, in their purchases (/). It would be plainly inequitable, that a party who has, bond fide, paid his money upon the faith of a good title, should be defeated by any creditor of the original grantor, who has no superior equity, since it would be impossible for him to guard him- self against such latent frauds. The policy of the law, therefore, which favours the security of titles, as conducive to the public good, would be subverted, if a creditor, having no lien upon the property, should yet be permitted to avail himself of the priority of his debt, to defeat such a bond fide purchaser. Where the parties are equally meritorious, and equally innocent, the known maxim of courts of equity is. Qui prior est in tempore, potior est in jure ; he is to be preferred, who has (z) Wilson V. Bmj, 10 A. & E. 82. (a)' Knight v. Hunt, 5 Bing. 432; CulUngworth v. Lloyd, 2 Beav. 385; McKewan v. Sanderson, L. E. 20 Eq. 66. (b) Knight v. Hunt, 5 Bing. 432; Farmers' Mart, Ltd. v. Milner, [1915] A. C. 106. (c) Ellis V. McHenry, Levita's Claim, [1894] 3 Ch. 365. See Boyd v. Hind, 1 H. & N. 938. (d) Jackman v. Mitchell, 13 Vea. 581; McNeill v. Cahill, 2 Bligh. 228; Mare v. Sandford, 1 Giff. 288; Wood v. Barker, L. R. 1 Eq. 139. (e) Simpson v. Lord Howden, 3 M. & Cr. 97. if) Prodgers v. Langham, 1 Sid. 133; Halifax Joint Stock Bank v. Gledhill, [1891] 1 Ch. 31. § 380 — 384.] CONSTRUCTIVE FRAUD. 155 acquired the first title. This point, however, will naturally present itself in other aspects, when we come to the consideration of the general protection, afforded by courts of equity, to purchasers standing in such a predicament. § 382. Other underhand agreements, which operate as a fraud upon third persons, may easily be suggested, to which the same remedial justice has been applied. Thus, where a father, upon the marriage of his daughter, entered into a covenant, that upon his death he would leave her certain tenements, and that he would, also by his will, give and leave her a full and equal share, with her brother and sister, of all his personal estate; and he afterwards, during his life, transferred to his son a very large portion of his personal property, consisting of public stock, but retained the dividends for his life; it was held, that the transfer was void, as a fraud upon the marriage articles; and the son was compelled to account for the same (g). Covenants of this nature are proper in themselves, and ought to be honourably observed. They ought not to be, and indeed are not, con- strued to prohibit the father from making, during his lifetime, any dispositions of his personal property among children, more favourable to one than another. But they do prohibit him from doing any acts which are designed to defeat and defraud the covenant. He may, if he pleases, make a gift bona fide to a child ; but then it must be an absolute and unqualified gift, which surrenders all his own interest, and not a mere reversionary gift which saves the income to himself during his own life {h). § 383. So if a friend should advance money to purchase goods for another, or to relieve another from the pressure of his necessities, and the other parties interested should enter into a private agree- ment over and beyond that with which the friend is made acquainted, such an agreement will be void at law, as well as in equity; for the friend is drawn in to make the advance by false colours held out to him, and under a supposition that he is acquainted with all the facts (j). So the guaranty of the payment of a debt, procured from a friend upon the omission by the parties to disclose material circum- stances, is a virtual fraud upon him, and avoids the contract (fe). § 384. Another class of constructive frauds of a large extent, and over which courts of equity exercise an exclusive and very salutary jurisdiction, consists of those where a man designedly or knowingly produces a false impression upon another, who is thereby drawn into some act or contract, injurious to his own rights or interests. This (g) Jones v. Martin, 5 Ves. 265 n. ; Randall v. Willis, 5 Ves. 261 ; 8 Bro. Pari. C. 242, by Tomlins. (ill) Logan v. Wienholt, 1 CI. & P. 611. (i) Jackson v. Duchaise, 3 T. R. 551. (k) Pidcock V. Bishop, 3 B. & C. 605; Smith v. Bank of Scotland, 1 Dow, 272; London General Omnibus Co. v. Holloway, [1912] 2 K. B. 72. 156 EQUITY JURISPRUDENCE. [CH. VII. subject has been partly treated before ; but it should be again brought under our notice in this connection (l). No man can reasonably doubt, that if a party, by the wilful suggestion of a falsehood, is the cause of prejudice to another, who has a right to a full and correct repre- sentation of the fact, his claim ought in conscience to b'e postponed, ±0 that of the person whose confidence was induced by his represen- lation. And there can be no real difference between an express representation, and one that is naturally or necessarily implied from the circumstances. The wholesome maxim of the law upon this subject, is, that a party who enables another to commit a fraud is answerable for the consequences (m) ; and, the maxim so often cited, Fraus est celare fraudem, is, with proper limitations in its applica- tion, a rule of general justice. § 385. In many cases, a man may innocently be silent; for, as has often been observed, Aliud est tacere, aliud celare. But, in other cases, a man is bound to speak out ; and his very silence becomes as expressive as if he had openly consented to what is said or done, and had become a party to the transaction. Thus, if a man, having a title to an estate, which is offered for sale, and knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate, under the supposition that the title of the actual vendor is good, the true owner, so standing by and being silent, will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase (n). So, if a man should stand by, and see another person, as grantor, execute a deed of conveyance of land belongfing to himself, and, knowing the facts, should sign his name as a witness, he would in equity be bound by the conveyance (o). So, if a party knowing himself to have a title to an estate (p), should stand by, and allow another, whom he knows believes himself to be entitled, to expend money upon the estate, without giving him notice, he would not be permitted by a court of equity to assert that title against such purchaser, at least not without fully indemnifying him for all his expenditure (g). The same rule has been applied both at law and in equity, where the owner of chattels, with a full knowledge of his own title, has permitted another person to deal with these chattels as his own, in his transactions with third persons, who have bargained and acted in the confidence that the chattels were the property of the (l) Ante, U 192-204. (m) Bac. Max. 16. in) Savage v. Foster, 9 Mod. 35. Although the author and most equity practi- tioners class this as fraud, it is the familiar common law doctrine of estoppel. Pickard V. Sears, 6 A. & E. 474; Freeman v. Cooke, 2 Ex, 654. (o) Teesdale v. Teesdale, Sel. Ch. Caa. 59. (p) Bell V. Marsh, [1903] 1 Ch. 528. iq) Ramsden v. Dyson, L. E. 1 H. L. 129; Willmott v. Barber, 15 Ch. D. 96; SumpterM. Hedges, [1898] 1 Q. B. 673. § 385 — 393.] CONSTRUCTIVE PRADD. 157 person with whom they dealt (r). Cases of this sort are viewed with so much disfavour by courts of equity, that disabihty will not constitute any excuse for the party guilty of the concealment or misrepresenta- tion ; for neither infants nor femes covert are privileged to practise deception or cheats on other innocent persons (s). § 386. In order to justify the application of this cogent moral principle, it is indispensable that the party so standing by and concealing his rights should be fully apprised of them, and should, by his conduct or gross negligence, encourage or influence the purchase; for if he is wholly ignorant of his rights, or the purchaser knows them, or, if his acts, or silence, or negligence, do not mislead, or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part. § 387. There are indeed old cases, where it has been held that ignorance of title will not excuse a party; for, if he actually misleads the purchaser by his own representations, although innocently, the maxim is applied to him, that, where one of two innocent persons must suffer, he shall suffer who, by his own acts, occasioned the confidence and the loss (<). But this doctrine of the incidence of the loss is no longer recognised (w). The true doctrine is either that there is an estoppel, or that the negotiations have proceeded upon the assumption that a certain state of circumstances exist, which is in truth a warranty or condition. § 391. In all this class of cases, the doctrine proceeds upon the ground of constructive fraud, or of gross negligence. And, therefore, where the circumstances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief (x). It has, accordingly, been laid down by a very learned judge, that the cases on this subject go to this result only, that there must be positive fraud, or concealment, or negligence so gross as to amount to constructive fraud (y). And, if the intention be fraudulent, although not exactly pointing to the object accomplished; yet the party will be bound to the same extent as if it had been exactly so pointed (a). § 393. What circumstances will amount to undue concealment, or to misrepresentation, in cases of this sort, is a point more fit for a treatise of evidence, than for one of mere jurisdiction. But it has (r) Nicholson v. Hooper, 4k Myl. & Cr. 179; Pickard v. Sears, 6 A. & E. 474. («) Savage v. Foster, 9 Mod. 35; Sugden, Vendors and Purch., ch. 16, p. 262, 9th edit. ; post, § 387. (t) See .3 P. Will. 74, Mr. Cox's note; Pearson v. Morgan, 2 Bro. C. C. 388. (u) Scholfield v. Earl of Londesborough, [1896] A. C. 514; Farquharson Bros. & Co. V. King, [1902] A. C. 325. (x) Beckett V. Gordley, 1 Bro. C. C. 353; Tourle v. Rand, 2 Bro. C. C. 652. (y) Evans v. Bicknell, 6 Ves. 190, 191, 192; Hewitt v. Loosemore, 9 Hare 449; Lord St. Leonards, V. and P. 14th edit. 755. (z) Evans v. Bicknell, 6 Ves. 191, 192; Beckett v. Gordley, 1 Bro. C. C. 357, 1 Fonbl. Eq. B. 1, ch. 3, § 4; Plurrib v. Fluitt, 2 Anst. 432, 440. 158 EQUITY JURISPRUDENCE. [CH. VII. been held, that a first mortgagee's merely allowing the mortgagor to have the title-deeds, or a first mortgagee's witnessing a second mortgage-deed, but not knowing the contents, or even concealing from a second • mortgagee information of a prior mortgage when he made application therefor, the intention of the party applying to lend money not being made known, are not of themselves sufficient to affect the first mortgagee with constructive fraud -(a). There must be other ingredients to give colour and body to these circumstances ; for they may be compatible with entire innocence of intention and object (b). Nothing but a voluntary, distinct, and unjustifiable con- currence on the part of the first mortgagee, in the mortgagor's retaining the title-deeds, is now deemed a sufficient reason for postponing his priority. And, in regard to the other acts above stated, they must be done under circumstances which show a like concurrence and co-operation in some deceit upon the second mortgagee (c). § 393a.. The doctrine was discussed in an exhaustive judgment of Fry, L.J., delivering the judgment of the whole Court of Appeal: " The authorities which we have reviewed appear to us to justify the following conclusions: — (1) That the court will postpone the prior legal estate to a subsequent equitable estate : (a) where the owner of the legal estate has assisted in or connived at the fraud which has led to the creation of a subsequent equitable estate without notice of the prior legal estate; of which assistance or connivance, the omission to use ordinary care in inquiry after or keeping title-deeds may be, and in some cases has been, held sufficient evidence, where such conduct cannot otherwise be explained; (b) where the owner of the legal estate has constituted the mortgagor his agent with authority io raise money, and the estate thus created has, by the fraud or misconduct of the agent, been represented as being the first estate. (a) West V. Reid, 2 Hare 249 ; Colyer v. Finch, 5 H. L. C. 905. In the first case Vice-Chanoellor Wigrara said : " In short, let the doctrine of constructive notice be extended to all cases (it is, in fact, more confined in Plumb v. Fluitt, Evans v. Bicknell, Cothay v. Sydenham, and other cases), but let it be extended to all cases in which the purchaser has notice that the property is affected, or has notice of facts raising a presumption that it is so, and the doctrine is reasonable, though it may some- times operate with severity. But once transgress the limits which that statement of the rule imposes, — once admit that a purchaser is to be effected with constructive notice of the contents of instruments not necessary to, nor presumptively connected with the title, only because by possibility they may affect it (for that may be predicted of almost any instrument); and it is impossible, in sound reasoning, to stop short of the con- clusion that every purchaser is affected with constructive notice of the contents of every instrument, of the mere existence of which he has notice, — a purchaser must be pre- sumed to investigate the title of the property he purchases, and may, therefore, be presumed to have examined every instrument forming a link, directly or by inference, in that title ; and that presumption I take to be the foundation of the whole doctrine. But it is impossible to presume that a purchaser examines instniments not directly or presumptively connected with the title, because they may by possibility affect it." (fc) Evans v. Bicknell, 6 Ves. 172, 182, 190, 191, 192; Plumb v. Fluitt, 2 Anst. 432; Hewitt v. Loosemore, 9 Hare 449; Barnett v. Weston, 12 Ves. 133. (c) Peter v. Russell, 2 Vern. 726, and Mr. Eaithby's note (1). § 393a — 394.] constructive fraud. 159 But (2) that the court will not postpone the prior legal estate to the subsequent equitable estate on the ground of any mere careless- ness or want of prudence on the part of the legal owner " (d)., If, on the other hand, a purchaser having bargained for a better title and getting nothing but an equitable title, may afterwards get in a legal title, and may hold it, though, during the interval between the payment and the getting in the legal title, he may have had notice of some prior dealing, inconsistent with the good faith of the dealing with himself (e). And, if two innocent persons take equitable mortgages from a fraudu- lent mortgagor, mere carelessness or want of prudence on the part of the fipst mortgagee in taking his security is not sufficient to postpone him to the second; for that purpose, the negligence must be " gross," that is, so great as to make the first mortgagee responsible for the fraud committed on the second mortgagee ; but, if the second mortgagee obta,ins a legal title he will be preferred to the first mortgagee, unless the legal estate has been obtained in breach of some equity which the first purchaser possesses (/). § 394. It is curious to trace how nearly the Roman law approaches that of England on this subject; thus demonstrating that if they had not a common origin, at least each is derived from that strong sense of justice which must pervade all enlightened communities. It is an acknowledged principle of the Roman jurisprudence, that a creditor who consents to the sale, donation, or other alienation of the property of his debtor, which is pledged or mortgaged for his debt, cannot assert his title against the purchaser, unless he reserves it; 'for his loss of title cannot, under such circumstances, be asserted to be to his prejudice; since it is by his consent; and otherwise the purchaser would be deceived into the bargain. " Creditor, qui permittit rem venire, pignus dimittit (g). Si consensit venditioni creditor, liberatur hypotheca (h). Si in venditione pignoris eonsenserit creditor, vel ut debitor hanc rem permutet, vel donet, vel in dotem det; dicendum erit, pignus liberari, nisi salva causa pignoris sui, consensit vel ven- ditioni vel eseteris " (i). But as to what shall be deemed a consent, the Roman law is very guarded. For it is there said, that we are not to take for a consent of the creditor to an alienation of the pledge, the knowledge which he may have of it; nor the silence which he may keep after he knows it; as, if he knows that his debtor is about selling a house, which is mortgaged to him, and he says nothing (d) Northern Counties of England Fire Insurance Company v. Whipp,.26 Ch. D. 494. See Farrand v. Yorkshire Bank, 40 Ch. D. 182. See also Carritt v. Real & Personal Advance Co., 42 Ch. D. 263; Walker v. Lirrum, [1907] 2 Ch. 104. (e) Blackwood v. London Chartered Bank of Australia, L. E. 5 P. C. Ill ; Taylor V. Russell, [1892] A. C. 244. (/) Phillips V. Phillips, 4 De G. P. & J. 208; Taylor v. Russell, [1892] A. C. 244. (3) Dig. Lib. 50, tit. 17, f. 158. Ih) Dig. Lib. 20, tit. 6, f. 7 ; Pothier, Pand. Lib. 20, tit. 6, art. 2, n. 21. (i) Dig. Lib. 20, f. 4, § 1. 160 EQUITY JURISPRUDENCE. [CH. VII. about it. But, in order to deprive him of his right, it is necessary that it should appear by some act that he knows what is doing to his prejudice, and consents to it; or, that there is some ground to charge him with dishonesty for not having declared his right when he was under an obligation to do it, by which the purchaser was misled. Thus, if upon the alienation, the debtor declares that the property is not encumbered, and the creditor knowingly signs the contract, as a party or witness, thereby rendering himself an accomplice in the false affirmation, he will be bound by the alienation. But the mere signature of the creditor, as a witness to a contract of alienation, will not of itself bind him, unless there are circumstances to show that he knew the contents, and acted disingenuously and dishonestly by the purchaser (fc). " Non videtur consensisse creditor, si, sciente eo, debitor rem vendiderit, cum ideo passus est venire, quod sciebat, ubique pignus sibi durare. Sed si subscripserit forte in tabulis emptionis consensisse videtur, nisi manifest appareat deeeptum esse " (l). § 395. Another class of constructive frauds consists of those where a person purchases with full notice of the legal or equitable title of other persons to the same property. In such cases he will not be permitted to protect himself against such claims; but his own title will be postponed, and made subservient to theirs (m). It would be gross injustice to allow him to defeat the just rights of others by his own iniquitous bargain. He becomes, by such conduct, paHiceps criminis with the fraudulent grantor; and the rule of equity, as well as of law, is, " Dolus et fraus nemini patrocinari debent " (n). And in all such cases of purchasers with notice, courts of equity will hold the purchaser a trustee for the benefit of the persons whose rights he has thus sought to defraud or defeat (o). Thus, if title-deeds should be deposited as a security for money (which would operate as an equitable mortgage), and a creditor, knowing the fact, should subsequently take a mortgage of the same property, he would be postponed to the equitable mortgage of the prior creditor; and the notice would raise a trust in him to the amount of such equitable mortgage (p). So, if a mortgagee, with notice of a trust, should get a conveyance from the trustee, in order to protect his mortgage, he would not be allowed to derive any benefit from it; but he would be held to be subject to the original trust, in the same manner as the trustee. For, it has (k) Domat, B. 3, tit. 1, § 7, art. 15, and Strahan's note. (l) Dig. Lib. 20, tit. 6, f. 8, § 15; Pothier, Pand. Lib. 20, tit. 6, art. 2, n. 26, 27: (m) Eyre v. Dolphin, 2 Ball & B. 290; Trinidad Asphalte Go. v. Coryat, [1896] A. C. 687. The anomalous case of a doweress — see Maundrell v. Maundrell, 10 Ves. 246 — is now obsolete; 8 & 9 Vict. u. 112 (the Satisfied Terms Act). (n) 3 Co. 78. (o) Maundrell v. Maundrell, 10 Ves. 260, 261, 270. (p) Birch V. Ellames, 2 Anst. 427; Hiern v. Mill, 13 Ves. 114; Agra Bank v. Barry, L. R. 7 H. L. 135. § 395 397.] CONSTRUCTIVE FRAUD. 161 been significantly said, that although a purchaser may buy an incum- brance, or lay hold on any plank to protect himself, yet he shall not protect himself by the taking of a conveyance from a trustee, with notice of the trust; for he hereby becomes a trustee; and he must not, to get a plank to save himself, be guilty of a breach of trust (g). But a trust or equity, to affect the conscience of him who has got in the legal estate, must be a trust or equity, not in favour of some third person who may have no care or desire to insist upon it, but a trust or equity in favour of the person against whom the legal estate is set up (r). § 396. The same principle applies to cases of a contract to sell lands, or to grant leases thereof. If a subsequent purchaser has notice of the contract, he is liable to the same equity, and stands in the same place, and is bound to do the same acts, which the person who contracted, and whom he represents, would be bound to do (s). § 397. It is upon the same ground, that, in counties where the registration of conveyances is required, in order* to make them perfect titles against subsequent purchasers, if a subsequent purchaser has notice, at the time of his purchase, of any prior unregistered con- veyance, he shall not be permitted to avail himself of his title against that prior conveyance (f). The object of all acts of this sort is, to secure subsequent purchasers and mortgagees against prior secret conveyances and incumbrances. But where such purchasers and mortgagees have notice of any prior conveyance, it is impossible to hold that it is a secret conveyance, by which they are prejudiced. On the other hand, the neglect to register a prior conveyance is often a matter of mistake, or of overweening confidence in the grantor ; and it would be a manifest fraud, to allow him to avail himself of the power, by any connivance with others, to defeat such prior convey- ance (m). The ground of the doctrine is (as Lord Hardwicke has remarked) plainly this: "That the taking of a legal estate, after notice of a prior right, makes a person a maid fide purchaser; and not that he is not a purchaser for a valuable consideration in every (g) Saunders v. Dehew, 2 Vem. 271; Timson v. Ramsbottom, 2 Keea 36. This is sometimes termed the tabula in naufragio, and must be limited as in the subsequent text. (r) Taylor v. Russell, [1892] A. C. 244. (s) Crofton v. Ormsby, 2 Scho. & L. 583; Daniels v. Davison, 16 Ves. 249; 17 Ves. 438; Allen v. Anthony, 1 Mer. 282. (t) These are the Yorkshire Eegistry Acts, 1884 and 1885, 7 Anne, c. 20, affecting the County of Middlesex. By the 54 & 56 Vict. t. 64, the Middlesex Eegistry has been transferred to the Land Eegistry established under the Land Transfer Act, 1875. There is also a small district affected by the 15 Chas. II. c. 17, commonly known as the Bedford Level Act. Le Neve v. Le Neve, 3 Atk. 646; Rolland v. Hart, L. E. 6 Ch. 678. (u) Le Neve v. Le Neve, 3 Atk. 646; Agra Bank v. Barry, L. E. 7 H. L. 135; Lee v. Clutton, 46 L. J. Ch. 48. See Benham v. Keane, 3 De G. P. & J. 318; Lord Ashburton v. Nocton, [1915] 1 Ch. 274. H.J. 11 162 EQUITY JURISPRUDENCE. [CH. VII. other respect. This is a species of fraud and dolus malus itself; for he knew the first purchaser had the clear right of the estate; and, after knowing that, he takes away the right of another person, by getting the legal title {x). And this exactly agrees with the definition of the civil law of dolus malus "{y). " Now, if a person does not stop his hand, but gets the legal estate, when he knows the equity was in another machinatur ad circumveniendum "(a). § 398. This doctrine, as to postponing registered to unregistered conveyances upon the ground of notice, has broken in upon the policy of the Eegistration Acts in no small degree; for a registered convey- ance stands upon a different footing from an ordinary conveyance. It has, indeed, been greatly doubted whether courts ought ever to have suffered the question of notice to be agitated as against a party who has duly registered his conveyance. But they have said that fraud shall not be permitted to prevail. There is, however, this qualification upon the doctrine, that it shall be available only in cases where the notice is so clearly proved as to make it fraudulent in the purchaser to take and register a conveyance, in prejudice to the known title of the other party (a). § 399. What shall constitute notice, in cases of subsequent pur- chasers, is a point of some nicety, and resolves itself, sometimes into matter of fact, and sometimes into matter of law (b). Notice may be either actual and positive, or it may be implied and constructive (c). Actual notice requires no definition; for in that case knowledge of the fact is brought directly home to the party. Constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent, that the court will not even allow of its being controverted (d). There must not be, in the language of one very able judge, " fraudulent and wilful blindness " or " fraudulent blind- ness " (e). Or, as has been elsewhere said by the same authority, con- structive notice is knowledge imputed by the court on presumption, too strong to be rebutted, that the knowledge must have been com- municated (/). (x) he Neve v. Le Neve, 3 Atk. 646, and cases before cited. So in the late case o£ Kettlewell v. Watson, 26 Ch. D. 501, it was held that a purchaser of land in a registered county is bound to inquire for and examine the deed and documents, memorials of which are registered. (y) Dig. Lib. 4, tit. 3. f. 2; ibid. Lib. 2, tit. U, § 9. (z) Le Neve v. Le Neve, 3 Atk. 646. (a) Wyatt v. Banoell, 19 Ves. 439; Chadwick v. Turner, L. E. 1 Ch. 310; Holland v. Hart, L. E. 6 Ch. 678; Lee v. Glutton, 46 L. J. Ch. 48. (b) See post, § 1047, 1067. (c) In a treatise like the present, it is impracticable to do more than to glance at topics of this nature. The learned reader will find full information on the subject in treatises which profess to examine it at large. See Lord St. Leonards' Vendors and Purchasers, 14th ed. ch. 22, § 4, p. 727. (d) Plumb v. Fluitt. 2 Anst. 438, per Eyre, C.B. (e) Jones v. Smitli, 1 Hare, at pp. 56 and 60, per Wigram, V.-C. (/) Hewitt V. Looseinore, 9 Hare 449. § 398 — 400a.] ooisstructive fraud. 163 § 400. An illustration of this doctrine of constructive notice is where the party has possession or knowledge of a deed under which he claims his title, and it recites another deed which shows a title in some other person ; there the court will presume him to have notice of the contents of the latter deed, and will not permit him to intro- duce evidence to disprove it {g). And generally it- may be stated, as a rule on this subject, that where a purchaser cannot make out a title but by a deed which leads him to another fact, he shall be presumed to have knowledge of that fact (h). So the purchaser is, in like manner, supposed to have knowledge of the instrument under which the party with whom he contracts, as executor, or trustee, or appointee, derives his power (i). Indeed, the doctrine is still broader; for, whatever is sufficient to put a party upon inquiry (that is, whatever has a reasonable certainty as to time, place, circumstances, and persons), is, in equity, held to be good notice to bind him (k). Thus, notice of a lease will be notice of its contents (I). So, if a person should purchase an estate from the owner, knowing it to be in the possession of tenants, he is bound to inquire into the estate (•m) which these tenants have, and, therefore, he is affected with notice of all the facts as to their estates. It is only a person in possession wiio can enforce his rights, for inquiry would produce an answer defining his claim, but a purchaser is not fixed with notice of the proprietary rights of a person under whom the party in possession claims, still less of a stranger to the title under which the party in possession claims (n). § 400a. The text of the learned author has not been modified in any material respect in the two preceding sections. Modern practice divides notice into three categories — ^actual, constructive, and imputed. Actual notice is knowledge acquired personally by the party who is fixed with notice ; constructive notice is notice of facts or deductions which a party is deemed to have acquired by reason of his knowledge or actual notice of other facts ; imputed notice (o), which is sometimes, but inaccurately, termed constructive notice, is that which the law imputes to a party who employs an agent, and the notice which the agent has (g) Hewitt v. Loosemore, 9 Hare 449. (h) Parker v. Brooke, 9 Ves. 583; Smith v. Capron, 7 Hare 185; Patman v. Harland, 17 Ch. D. 353. This doctrine, however, is to be received with some qualifica- tions. For though a deed disclosing a trust is in the chain of title, and would have to be shown in defence of an action at law, the defence of bond fide purchaser without notice will avail in equity, where knowledge of it was fraudulently withheld. Pilcher V. Rawlins, L. E. 7 Ch. 259. (t) Mead v. Lord Orrery, 3 Atk. 238; Sugden on Vendors and Purchasers, ch. 17, § 2. See post, § 422. (fe) Parker v. Brooke, 9 Ves. 583; Daniels v. Davison, 16 Ves. 250; 17 Ves. 433; Eyre v. Dolphin, 2 Ball & B. 290. (I) Hall V. Smith, 14 Ves. 426. (m) Daniels v. Davison, 16 Ves. 249; 17 Ves. 433; Allen v. Anthony, 1 Meriv. 282. (n) Miles v. Langley, 1 Russ. & M. 39, affirmed; 2 Buss. & M. 626; Hunt v. Luck, [1902] 1 Ch. 428. (o) Espin V. Pemberton, 3 De G. & J. 547, 554, per Lord Chelmsford, L.C. 164 EQUITY JURISPRUDENCE. [CH. VII. may itself be actual or constructive. The doctrine of imputed notice is not one peculiar to courts of equity. " If a party employs an agent who has full knowledge of circumstances, it must be presumed the principal has the same knowledge " (p). But the converse does not hold good in equity, and at the common law a party with knowledge could not rely upon the ignorance of his agent (g). § 400b. By a series of refinements the Court of Chancery had come to fix parties who employed an agent with constructive notice of facts which the agent might once have known, but had certainly long since forgotten. To restore the law within limits that should not work an injustice to purchasers was partly the object of section 3 of the Con- veyancing Act, 1882 (45 & 46 Vict. c. 39), which now regulates the circumstances under which a purchaser shall be deemed to be fixed with notice. It is in these terms — " (1) a purchaser shall not be pre- judicially affected by notice of any instrument, fact, or thing, unless (i.) It is within his own knowledge, or would have come to his know- ledge, if such inquiries and inspections had been made as ought reasonably to have been made by him ; or (ii.) In the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel as such, or of his solicitor or other agent as such, or would have come to the knowledge of his solicitor or other agent as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent. (2) This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe any covenant, condition, provision, or restriction con- tained in any instrument under which his title is derived, mediately or immediately, and such liability or obligation may be enforced in the same manner, and to the same extent, as if this section had not been enacted. (3) A purchaser shall not be affected by reason of anything in this section contained where he would not have been so affected if this section had not been enacted. (4) This section applies to purchases made either before or after the commencement of this Act (r). And by the definition clause (section 1) of the same statute : purchaser includes a lessee or mortgagee, or an intending purchaser, lessee, or mortgagee, or other person, who, for valuable consideration, takes or deals for property, and purchase has a meaning corresponding with that of purchaser." Section 3 does not affect the test of liability in equivocal cases, namely, that a person is absolved if he fails to pursue an inquiry acting in reliance upon an answer which is in fact false, but that he is fixed with liability if he abstains from all inquiry, (p) Doe d. Whitaker v. Hales, 7 Bing. 322, 325, per Tindal, Ch. J. iq) Levick v. Epsom ri Leatherhead Ry., 1 L. T. (n.s.) 60. (r) In re Cousins, 81 Ch. D. 671. § 400b 402.] CONSTRUCTIVE FRAUD. 165 for it cannot be assumed that a false answer or one leading to no result would have been returned (s). § 400 c. The critical times for receiving notice for the purpose of afiecting a purchaser with the proprietary rights of another are the parting with his money, and the taking of his conveyance (t). § 401. How far the registration of a conveyance, in countries where such registration is authorized and required by law, shall operate as constructive notice to subsequent purchasers, by mere presumption of law, independent of any actual notice, has been much discussed. It is not doubted that a prior conveyance, duly registered, operates to give full effect to the legal and equitable estate conveyed thereby, against subsequent conveyances of the same legal and equitable estate (m). But the question becomes important as to other collateral effects, such as defeating the right of tacking of mortgages, and other incidentally accruing equities between the different purchasers. For, if the mere registry, in such cases, without actual knowledge of the conveyance, operates as constructive notice, it shuts out many of those equities which otherwise might have an obligatory priority. It has been truly remarked, that there is a material difference between actual notice and the operation of the Eegistry Acts. Actual notice may bind the conscience of the parties ; the operation of the Eegistry Acts may bind their title, but not their conscience (x). § 402. The doctrine seems at length to be settled, that the mere registration of a conveyance shall not be deemed constructive notice to subsequent purchasers, but that actual notice must be brought home to the party, amounting to fraud (y). The subject certainly is attended with no inconsiderable difficulty. Some learned judges have expressed a doubt, whether courts of equity ought not to have said, that in all cases of a public registry, which is a known reposi- tory for conveyances, a subsequent purchaser ought to search, or be bound by notice of the registry, in the same way as he would be by a decree in equity, or by a judgment at law (z). Other learned judges have intimated a different opinion; assigning as a reason, that if the registration of the conveyance should be held constructive notice, it must be notice of all that is contained in the conveyance ; and, then, (s) S-mith V. Jones, 1 Hare 43; affirmed, 1 Ph. 244; Ware v. Lord Egmont, 4 De G. M. & Q. 460; Bailey v. Barnes, [1894] 1 Ch. 25. (t) Jackson v. Rome, 4 Russ. 514; further proceedings, 3 L. J. 0. S. Ch. 32; Collinson v. Lister, 7 De G. M. & G. 634. («) Wrightsm v. Hudson, 2 Eq. Abr. 609, pi. 7. {x) Underwood v. Courtown, 2 Sch. & Lefr. 66. See Latouche v. Dunsany, 1 Sch. & Lefr. 137. (y) Wyatt v. Barwell, 19 Ves. 435; Chadwick v. Turner, L. R. 1 Ch. 310; Rolland v. HaH, L. R. 6 Ch. 678 ; Lee v. Glutton, 46 L. J. Ch. 48. (z) Morecock v. Dickens, Ambler 480; Hine v. Dodd, 2 Atk. 275 ; Sugden, Vendors and Purchasers, ch. 16, 17. 166 EQUITY JURISPRUDENCE. [CH. VII. subsequent purchasers would be bound to inquire after the contents, the inconveniences of which cannot but be deemed exceedingly great (a). The question seems first to have arisen in a case of the tacking of mortgages, about the year 1730; and it was then decided, by Lord Chancellor King, that the mere registration of a second mortgage did not prevent a prior mortgagee from tacking a third mortgage, when he had no actual notice of the existence of the second mortgage (b). This decision has ever since been steadily adhered to, perhaps more from its having become a rule of property, than from a sense of its intrinsic propriety. § 405. It is upon different grounds, that a purchase made of land (c) actually in Htigation, pendente lite, for a valuable considera- tion, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice ; and he will accordingly be so far bound by the judgment or decree as not to be entitled to defeat the main object of the suit {d). § 406. Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action (e). "Where there is a real and fair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy ; for otherwise, alienations made during a,n action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendente lite, nihil innovetur ; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the htigation (/). As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them (g). By the 2 & 3 Vict. c. 11, s. 7, it was enacted that a lis pendens should not bind a purchaser or mortgagee without express notice thereof, unless and until it is duly registered, and the registration to be binding must be repeated every five years. And the court before whom the litigation is pending may, by 30 & 31 Vict. c. 47, s. 2, on (a) Latouche v. Dunsany, 1 Sch. & Lefr. 157; Underwood v. Cowrtown, 2 Sch. & Lefr. 64, 66; Pentland v. Stokes, 2 Ball & B. 75. (b) Bedford v. Backhouse, 2 Eq. Abr. 615, pi. 12; s.P. Wrightson v. Hudson, 2 Eq. Abr. 609, pi. 7 ; Cator v. Cooly, 1 Cox 182; Wiseman v. Westland, 1 Y. & J. 117. (c) Wigram v. Buckley, [1894] 3 Ch. 483. (d) Bellamy v. Sabine, 1 Dc G. & J. 666 ; Price v. Price, 35 Ch. D. 297. (e) Bishop of Winchester v. Paine, 11 Vea. 195; Metcalf v. Pulvertoft, 2 Ves. & B. 205. (/) Co. Litt. 224 b; Metcalf v. Pulvertoft, 2 Ves. & B. 199; Gaskeld v. Durdin, 2 Bail & B. 169; Price v. Price, 35 Ch. D. 297. (g) Bishop of Winchester v. Paine, 11 Ves. 194. § 405 409.] CONSTRUCTIVE FRAUD. 167 the determination of the lis pendens, or even during pendency, if satisfied that the litigation is not prosecuted bond fide, order the registration to be vacated without the consent of the party by whom the lis pendens was registered. In a late case (h) it was held that in an action by an equitable mortgagee for sale or foreclosure, the court has power, on an ex parte application of the plaintiff, to grant an interim injunction to restrain dealing with the legal estate on the ground that a lis pendens is not an adequate protection to the plaintiff. § 407. In general, a judgment is not constructive notice to any persons who are not parties or privies to it; and, therefore, other persons are not presumed to have notice of its contents. A judgment was made a general charge upon lands of the debtor by the Statute of "Westminster 2. The right so acquired was a legal right, and with that a court of equity could not interfere (i). Provisions have intermittently been made for the registration of judgments and relieving purchasers from the effect of unregistered judgments. These statutes have since been repealed and according to the law now in force the writ of execu- tion is registered, and from the date of registration of the writ of execu- tion the land is bound, although further proceedings may be necessary to render the land available in execution (fe). § 408. To constitute constructive notice, it is not indispensable that it should be brought home to the party himself. It is sufficient, if it is brought home to the agent, solicitor, or counsel of the party; for, in such cases, the law presumes notice in the principal, since it would be a breach of duty in the former not to communicate the knowledge to the latter (I). But, in all these cases, notice to bind the principal should be notice in the same transaction, or negotiation ; for, if the agent, solicitor, or counsel was employed in the same thing by another person, or in another business or affair, and at another time, since which he may have forgotten the facts, it would be unjust to charge his present principal on account of such a defect of memory {m). It was significantly observed by Lord Hardwicke, that, if this rule were not adhered to, it would make the titles of pur- chasers and mortgagees depend altogether upon the memory of their counsellors and agents; and oblige them to apply to persons of less eminence as counsel, as being less likely to have notice of former transactions (n). § 409. The doctrine, which has been already stated, in regard to the effect of notice, is strictly applicable to every purchaser whose (h) London and County Banking Company v. Lewis, 21 Ch. D. 401. (i) See Benham v. Keane, 3 De G. P. & J. 318. (k) Lord AshbuHon v. Nocton, [1915] 1 Ch. 274. (I) Espin V. Pemberton, 3 De G. & J. 547. See Berwick S Co. v. Price, [1906] 1 Ch. 682. (m) Fitzgerald v. Falconberg , Fitzgib. 211. This is now so by statute ; see § 400b. ()i) Warrick v. Warrick, 3 Atk. 290; Worsley v. Earl of Scarborough, 3 Atk. 292; Lowther v. Carlton, 2 Atk. 242, 292. 168 EQUITY JURISPRUDENCE. [CH. VII. title comes into his hands, affected with such notice. But it in no manner affects any such title derived from another person, in whose hands it stood free from any such taint. Thus, a purchaser with notice may protect himself unless he is a trustee repurchasing trust property for his own benefit (o), by purchasing the title of another bond fide purchaser for a valuable consideration without notice ; for, other- wise, such bond fide purchaser would not enjoy the full benefit of his own unexceptionable title. Indeed, he would be deprived of the marketable value of such a title; since it would be necessary to have public notoriety given to the existence of a prior incumbrance, and no buyer could be found, or none except at a depreciation equal to the value of the incumbrance. For a similar reason, if a person who has notice, sells to another who has no notice, and is a bond fide purchaser for a valuable consideration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he derived it; for, otherwise, no man would be safe in any purchase, but would be liable to have his own title defeated by secret equities, of which he could have no possible means of making a discovery. § 410. This doctrine, in both of its branches, has been settled for nearly two centuries and a half; and it arose in a case in which A. purchased an estate, with notice of an incumbrance, and then sold it to B., who had no notice; and B. afterwards sold it to C, who had notice; and the question was, whether the incumbrance bound the estate in the hands of C. The then Master of the EoUs thought, that although the equity of the incumbrance was gone, while the estate was in the hands of B., yet it was revived upon the sale to C. But the Lord Keeper reversed the decision, and held, that the estate in the hands of C. was discharged of the incumbrance, notwithstanding the notice of A. and C. (p). This doctrine has ever since been adhered to as an indispensable muniment of title (5). And it is wholly immaterial of what nature the equity is, whether it is a lien, or an incumbrance, or a trust, or any other claim; for a bond fide purchase of an estate, for a valuable consideration, purges away the equity from the estate, in the hands of all persons who may derive title under it, with the exception of the original party, whose conscience stands bound by the violation of his trust and meditated fraud. But, if the estate becomes re-vested in him, the original equity will re-attach to it in his hands (r). § 411. Indeed, purchasers of this sort are so much favoured in (0) Delves v. Gray, [1902] 2 Ch. 600; Gordon v. Holland, 82 L. J. P. C. 81. (p) Harrison v. Forth, Prec. Ch. 61. (3) Sweet V. Southcote, 2 Bro. C. C. 66; McQueen v. Farquhar, 11 Ves: 467; Barrow's Case, 14 Ch. D. 432; Wilkes v. Spooner, [1911] 2 K. B. 473. (r) Bovey v. Smith, 1 Vern. 60, 84, 144; Delves v. Gray, [1902] 2 Ch. 606; Gordon v. Holland, 82 L. J. P. C. 81. § 410 — 413.] CONSTRUCTIVE FRAUD. 169 equity, that it may be stated to be a doctrine now generally established, that a bond fide purchaser for a valuable consideration, without notice of any defect in his title at the time of his purchase, may lawfully buy in any mortgage, or other incumbrance, upon the same estate for his protection. If he can defend himself by any of them at law, his adversary will have no help in equity to set these' incumbrances aside ; for equity will not disarm such a purchaser; but will act upon the wise policy of the common law, to protect and quiet lawful possessions, and strengthen such titles. "We shall have occasion, hereafter, in various cases, to see the application of this doctrine. § 412. And this naturally leads us to the consideration of the equitable doctrine of tacking, as it is technically called, that is, uniting securities, given at difierent times, so as to prevent any intermediate purchasers from claiming a title to redeem, or otherwise to discharge one lien, which is prior, without redeeming or discharging the other liens also, which are subsequent to his own title (s). Thus, if a third mortgagee, without notice of a second mortgage, should purchase in the first mortgage, by which he would acquire the legal title, the second mortgagee would not be permitted to redeem the first mortgage without redeeming the third mortgage also; for, in such a case, equity tacks both mortgages together in his favour. And, in such a case, it will make no difference that the third mortgagee, at the time of purchasing the first mortgage, had notice of the second mortgage; for he is still entitled to the same protection (t). § 413. There is, certainly, great apparent hardship in this rule; for it seems most conformable to natural justice, that each mortgagee should, in such a case, be paid according to the order and priority of his incumbrances, and this is the rule where the legal estate is out- standing (m). The general reasoning, by which this doctrine is main- tained, is this : In sequali jure, melior est conditio possidentis. Where the equity is equal, the law shall prevail ; and he that hath only a title in equity shall not prevail against a title by law and equity in another. But, however correct this reasoning may be when rightly applied, its applicability to the case stated may reasonably be doubted. It is assuming the whole case, to say that the right is equal, and the equity is equal. The second mortgagee has a prior right, and at least aji equal equity; and then the rule seems justly to apply, that, where the equities are equal, that title which is prior in time shall prevail; Qui prior est in tempore, potior est in jure (x). (s) Marsh v. Lee, 2 Vent. 337; Lacey v. Ingle, 2 Ph. 413; Spencer v. Pearson, 24 Beav. 266. See Bailey v. Barnes, [1894] 1 Ch. 25. (t) Marsh v. Lee, 2 Vent. 337. (u) Frere v. Moore, 8 Pri. 475 ; London di County Bank v. Goddard, [1897] 1 Ch. 642; Taylor v. Londm & County Bank, [1901] 2 Ch. 231. (x) The doctrine of tacking was abolished by the Vendor and Purchaser Act, 1874, but was restored by the Land Transfer Act, 1875. 170 EQUITY JURISPRUDENCE. [CH. VII. § 414. It has been significantly said, that it is a plank, gained by the third mortgagee, in a shipwreck, tabula in naufragio (y). But, independently of the inapplicability of the figure, which can justly apply only to cases of extreme hazard to life, and not to mere seizures of property, it is obvious, that no man can have a right, in consequence of a shipwreck, to convert another man's property to his own use, or to acquire an exclusive right against a prior owner. The best apology for the actual enforcement of the rule is, that it has been long estab- lished, and that it ought not now to be departed from, since it has become a rule of property. § 415. Lord Hardwicke has given the following account of the origin and foundation of the doctrine. "As to the equity of this court, that a third incumbrancer, having taken his security or mort- gage without notice of the second incumbrance, and then, being puisne, taking in the first incumbrance, shall squeeze out and have satisfaction before the second ; that equity is certainly established in general ; and was so in Marsh v. Lee, by a very solemn determination by Lord Hale, who gave it the term of the creditor's tabula in naufragio. This is the leading case. Perhaps it might be going a good way at first ; but it has been followed ever since; and, I believe, was rightly settled only on this foundation by the particular constitution of the law of this country. It could not happen in any other country but this ; because the jurisdic- tion of law and equity is administered here in different courts, and creates different kinds of rights in estates. And, therefore, as courts of equity break in upon the common law, where necessity and con- science require it, still, they allow superior force and strength to a legal title to estates ; and, therefore, where there is a legal title and equity on one side, this court never thought fit, that, by reason of a prior equity against a man, who had a legal title, that man should be hurt; and this, by reason of that force, this court necessarily and rightly allows to the common law and to legal titles. But if this had happened in any other country, it could never have made a question ; for if the law and equity are administered by the same jurisdiction, the rule, Qui prior est in tempore, potior est in jure, must hold " (z). § 416. Indeed, so little has this doctrine of tacking to commend itself, that it has stopped far short of the analogies, which would seem to justify its application (a) ; and it has been confined to cases where the party, in whose favour it is allowed, originally bond fide advanced his money on the security of the land. Thus, if a puisne creditor, by judgment, should buy in a prior mortgage, he would not be allowed to tack his judgment to such a mortgage, so as to cut out a mesne mortgagee (&). The reason is said to be, that a creditor can (y) Marsh v. Lee, 2 Vent. 337. (z) Wortley v. Birkhead, 2 Ves. Sen. 573. (a) See ThorneycToft v. Crockett, 2 H. L. C. 239. (b) Brace v. Duchess of Marlborough, 2 P. Will. 492 to 495 ; Ex parte Knott, § 414 419.] CONSTRUCTIVE FKAUD. 171 in no just sense be called a purchaser; for he does not advance his money upon the immediate credit of the land ; and, by his judgment, he does not acquire any right in the land. He has neither jus in re, nor jus ad rem ; but a mere lien upon the land, which may, or may not, afterwards be enforced upon it (c). But if, instead of being a judgment creditor, he were a third mortgagee, and should then purchase in a prior judgment, in such case he would be entitled to tack both together. The reason for the diversity is, that in the latter case he did originally lend his money upon the credit of the land; but in the former he did not, but was only a general creditor, trusting to the general assets of his debtor (d). § 417. Further advances may be tacked as against a puisne incum- brance of whose security the legal mortgagee has no notice (e), as he might in respect of sums due upon a statute or judgment upon the presumption that he lent the further sum upon the statute or judgment upon the same security, although it passed no present interest in the land, but gave a lien only (/). § 418. And yet, such a prior mortgagee, having a bond debt, has never been permitted to tack it against any intervening incumbrancers of a superior nature between his bond and mortgage ; nor against other specialty creditors ; nor even against the mortgagor himself ; nor against a surety; but only against his heir, to avoid circuity of action (g). The reason given is, that the bond debt, except as against the heir, is not a charge on the land. And tacking takes place only when the party holds both securities in the same right. For if a prior mortgagee takes an assignment of a third mortgage, as a trustee only for another person, he will not be allowed to tack two mortgages together, to the prejudice of intervening incumbrancers (h). § 419. It cannot be denied, that some of these distinctions are extremely thin, and stand upon very artificial and unsatisfactory reasoning. The account of the matter given by Lord Hardwicke («'), is probably the true one. But it is a little difficult to perceive how the foundation could support such a superstructure, or rather, why the 11 Ves. 609; Lacey v. Ingle, 2 Ph. 413. See Mayor of Brecon v. Seymour, 26 Beav. 548. (c) Averall v. Wade, LI. & G. 252 ; Beavan v. Earl of Oxford, 6 De G. M. & G. 507. (d) Higgin v. Lyddal, 1 Ch. Cas. 149; Mackreth v. Symmons, 15 Ves. 354. (e) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Wyllie v. Pollen, 3 De G. J. & S. 596; Hopkinson v. Bolt, 9 H. L. C. 514; West v. Waiiams, [1899] 1 Ch. 132. (/) Shepherd v. Titley, 2 Atk. 352; Ex parte Knott, 11 Ves'. 617; Lacey v. Ingle, 2 Ph. 413. , (g) Lowthian'v. Hasel, 3 Bro. C. C. 163; Morret v. Paske, 2 Atk. 51; Price v. Fastnedge, Ambler 685, and Mr. Blunt's note; Jones v. Smith, 2 Ves. Jun. 376; Adams v. Glaxton, 6 Ves. 229 ; Forbes v. Jackson, 19 Ch. D. 615. See Thomas v. Thomas, 22 Beav. 341; Talbot v. Frere, 9 Ch. D. 568. (h) Morret v. Paske, 2 Atk. 53. (i) Worthy v. Birkhead, 2 Ves. Sen. 574 ; ante, § 415. 172 EQUITY JURISPRUDENCE. [CH. VII. intelligible equity of the case, upon the principles of natural justice, should not be rigorously applied to it. Courts of equity have found no difficulty in applying it, where the puisne incumbrancer has bought in a prior equitable incumbrance ; for in such cases they have declared, that where the puisne incumbrancer has not obtained the legal title ; or where the legal title is vested in a trustee ; or where he takes in autre droit; the incumbrances shall be paid in the order of their priority in point of time, according to the maxim^ above mentioned (fc). The reasonable principle is here adopted, that he who has the better right to call for the legal title, or for its protection, shall prevail. § 420. The civil law has proceeded upon a far more intelligible and just doctrine on this subject. It wholly repudiates the doctrine of tacking; and gives the fullest effect to the maxim, Qui prior est in tempore, potior est in jure, excluding it only in cases of fraud, or of consent, or of a superior equity (J). § 421. But, whatever may be thought as to the foundation of the doctrine of tacking in courts of equity, it is now firmly established. It is, however, to be taken with this most important qualification, that the party who seeks to avail himself of it is a bond fide purchaser, without notice of the prior or intermediate incumbrance, at the time when he took his security; for if he then had such notice, he has not the slightest claim to the protection or assistance of a court of equity ; and he will not be allowed to tack the amount of his subsequent advance, or by purchasing a prior incumbrance, to tack his own tainted mortgage or other title to the latter (m). § 422. Another instance of the application of this wholesome doctrine of constructive fraud, arising from notice, may be seen in the dealings with executors and other persons, holding a fiduciary character, and third persons colluding with them in violation of their trust. Thus, purchases from executors of the personal property of their testa- tor are ordinarily obligatory and valid notwithstanding they may be affected with some peculiar trusts or equities in the hands of the executors. For the purchaser cannot be presumed to know that the sale may not be required in order to discharge the debts of the testator, for which they are legally bound, before all other claims. But, if the purchaser knows or must be deemed to have known that the executor is wasting and turning the testator's estate into money, the more easily to run away with it, or for any other unlawful purpose, he will be deemed particeps criminis, and his purchase set aside as fraudulent (n). (k) Barnett v. Weston, 12 Ves. 130; Frere v. Moore, 8 Pri. 475 ; London £ County Bank v. Goddard, [1897] 1 Ch. 642; Tarjlor v. London & County Bank, [1901] 2 Ch. 231. (0 See Dig. Lib. 20, tit. 4, f. 16. (m) Brace v. Duchess of Marlborough, 2 P. Will. 491, 495; Hopkinson v. Bolt, 9 H. L. C. 574; West v. Williams, [1899] 1 Ch. 132. (n) Hill v. Simpson, 7 Ves. 152; McLeod v. Drummond, 14 Ves. 359; 17 Ves. 153; Walker v. Taylor, 8 Jur. N. S. 681. 5 420 425.] CONSTRUCTIVE FRAUD. l73 § 423. The reason for this diversity of doctrine has been fully stated by Sir William Grant. " It is true ' ' (said he) ' ' that executors are, in equity, mere trustees for the performance of the will; yet in many respects, and for many purposes, third persons are entitled to consider them absolute owners. The mere circumstance that they are executors will not vitiate any transaction with them; for the power of disposition is generally incident, being frequently necessary. And a stranger shall not be put to examine whether, in the particular instance, that power has been discreetly exercised. But, from that proposition, that a third person is not bound to look to the trust in every respect, and for every purpose, it does not follow that, dealing with the executor for the assets, he may equally look upon him as absolute owner, and wholly overlook his character as trustee, when he knows the executor is applying the assets to a purpose wholly foreign to his trust. No decision necessarily leads to such a consequence " (o). The same doctrine is applied to the cases of executors or administrators colluding with the debtors to the estate, either to retain or to waste the assets; for, in such cases, the creditors will be allowed to sue the debtors directly in equity, making the executor or administra- tor also a party to the action, although, ordinarily, the executor or administrator only can sue for the debts due to the deceased (p). Indeed, the doctrine may be even more generally stated ; that he who has voluntarily concurred in the commission of a fraud by another, shall never be permitted to obtain a profit thereby against those who have been thus defrauded. § 424. It seems at one time to have been thought, that no person but a creditor, or a specific legatee of the property, could question the validity of a disposition made of assets by an executor, however fraudulent it might be. But that doctrine is so repugnant to true principles, that it could scarcely be maintained whenever it came to be thoroughly sifted (q). It is now well understood that pecuniary and residuary legatees may question the validity of such a disposition; and, indeed, residuary legatees stand upon a stronger ground than pecuniary legatees generally; for, in a sense, they have a lien on the fund, and may go into equity to enforce it upon the fund (r). § 425. The author then proceeded to consider under the present head of constructive fraud, voluntary conveyances of freehold lands (s), in regard to subsequent purchasers. This class was founded, in a great measure, if not altogether, upon the provisions of the statute of (o) Hill v. Simpson, 7 Ves. 166. (p) Burroughs v. Elton, 11 Ves. 29; Holland v. Prior, 1 Myl. & K. 237; Travis v.. Milne, 9 Hare 141; Yeatman v. Yeatman, 7 Ch. D. 210. (q) Mead v. Lord Orrery, 3 Atk. 235. (r) Hill V. Simpson, 7 "Ves. 152; McLeod v. Drummond, 14 Ves. 859; s.c. 17 Ves- 169. is) Price v. Jenkins, 5 Ch. D. 619. 174 EQUITY JURISPRUDENCE. [CH. VII. 27 Eliz. c. 4, which did not apply to personal estate (i). The object of that statute was, to give full protection to subsequent purchasers from the grantor, against mere volunteers, under prior conveyances. As betvi^een the parties themselves, such conveyances are positively binding, and cannot be disturbed; for the statute does not reach such cases (m). § 426. It was for a long period of time a much litigated question whether the effect of the statute was to avoid all voluntary convey- ances (that is, all such as were made merely in consideration of natural love or affection, or were mere gifts), although made bond fide, in favour of all subsequent purchasers, with or without notice; or whether it applied only to conveyances made with a fraudulent intent, and to purchasers without notice. After no inconsiderable diversity of judicial opinion, the doctrine was at length estabUshed (whether in conformity to the language or intent of the statute is exceedingly questionable), that all such conveyances were void as to subsequent purchasers, whether they were purchasers with or without notice, although the original conveyance was bona fide, and without the slightest admixture of intentional fraud; upon the ground that the statute in every such case infers fraud, and will not suffer the presumption to be gainsaid (x). The doctrine, however, was admitted to be full of difficulties; and it was accepted rather upon the pressure of authorities, and the vast extent to which titles had been acquired and held under it, than upon any notion that it had a firm foundation in reason and a just construction of the statute. The rule stare decisis, was here applied to give repose and security to titles fairly acquired, upon the faith of judicial decisions {y). Eventually the legislature intervened, and by the Voluntary Conveyances Act, 1893 (56 & 57 Vict, c. 21), voluntary conveyances of freehold lands cannot be defeated by a subsequent sale for value unless fraudulent in fact in their inception. § 435. The civil law proceeded upon the same enlightened policy. In the case of alienations of movables, and immovables, bond fide purchasers for a valuable consideration, having no knowledge of any fraudulent intent of the grantor or debtor, were protected. " Ait praetor; Quae fraudationis causa gesta erunt, cum eo, qui fraudem non ignoraverit, actionem dabo " (z). Upon this, there follows this com- ment. " Hoc Edictum eum coercet, qui sciens eum in fraudem creditorum hoc facere, suscepit, quod in fraudem creditorum fiebat. Quare, si quid in fraudem creditorum factum sit, si tamen is, qui cepit, .ignoravit, cessare videntur verba Edicti " (a). And the very case is (t) Jones v. Groucher, 1 Sim. & St. 315. (u) Smith V. Garland, 1 Mer. 123; Johnson v. Legard, T. & E. 281. (x) Doe V. Manning, 9 East 58. iy) Trowell v. Shenton, 8 Ch. D. 318; Godfreij v. Poole, 13 App. Cas. 497. .(«) Dig. Lib. 42, tit. 8, f. 1. (0) Ibid. f. 6, § 8. § 426 — 439.] CONSTRUCTIVE FRAUD. 175 afterwards put, of a bond fide purchaser from a fraudulent grantee, the validity of whose purchase is unequivocally affirmed. " Is, qui a debitore, cujus bona possessa sunt, sciens rem emit, iterum alii bona fide ementi vendidit; quaesitum sit, an secundus emptor conveneri potest? Sed verier est Sabini sententia, bona fide emptorem non teneri ; quia dolus ei duntaxat nocere debeat, qui eum admisit ; quemad- modum diximus, non teneri eum, si ab ipso debitore ignorans emerit. Is autem, qui dolo malo emit, bona fide autem ementi vendidit, in solidum pretium rei, quod accepit, tenebitur " (fa). The same doctrine is fully recognized by Voet (c). And its intrinsic justice is so persuasive and satisfactory, that whether derived from Roman sources or not, it would have been truly surprising not to have found it embodied in the jurisprudence of England. § 436. Ind-eed, the principle is more broad and comprehensive ; and, although not absolutely universal (for there are anomalies in the case of judgment creditors, and the case of dower) (d) ; yet it is generally true, and applies to cases of every sort, where an equity is sought to be enforced against a bond fide purchaser of the legal estate without notice, or even against a bond fide purchaser, not having the legal estate, where he has a better right or title to call for the legal estate than the other party. It applies, therefore, to cases of accident and mistake, as well as to cases of fraud, which, however remediable between the original parties, are not relievable, as against such purchasers, under such circumstances. § 439. We have thus gone over the principal grounds upon which courts of equity grant relief in cases of accident, mistake, and fraud. And here the flexibility of courts of equity in adapting their judgments to the actual relief required by the parties is strikingly illustrated. Accident, mistake, and fraud are of an infinite variety in form, character, and circumstances, and are incapable of being adjusted by any single and uniform rule. Of each of them one might say, " Mille trahit varies adverse sole colores." The beautiful character, pervading excellence, if one may say, of equity jurisprudence is, that it varies its adjustments and proportions, so as to meet the very form and pressure of each particular case in all its complex habitudes. Thus, to present a summary of what has been already stated, if conveyances or other instruments are fraudulently or improperly obtained, they are decreed to be given up and cancelled. If they are money securities, on which the money has been paid, the money is decreed to be paid back. If they are deeds, or other muniments of title, detained from the rightful party, they are decreed to be delivered up. If they are deeds suppressed or spoliated, the paity is decreed to hold the same (6) Dig. Lib. 42, tit. 8, f. 9. (c) 2 Voet, Comm. Lib. 42, tit. 8, § 10, p.l05. (d) See ante, § 108, 381, 410; post, § 630. 176 EQUITY JURISPRUDENCE. [CH. VII. rights as if they were in his possession and power. If there has been any undue concealment, or misrepresentation, or specific promise collusively broken, the injured party is placed in the same situation, and the other party is compelled to do the same acts, as if all had been transacted with the utmost good faith. If the party says nothing, but by his expressive silence misleads another to his injury, he is com- pellable to make good the loss; and his own title, if the case requires it, is made subservient to that of the confiding purchaser. If a party, by fraud or misrepresentation, induces another to do an act injurious to a third person, he is made responsible for it. If, by fraud or mis- representation, he prevents acts from being done, equity treats the case, as to him, as if it were done; and makes him a trustee for the other. If a will is revoked by a fraudulent deed, the revocation is treated as a nullity. If a devisee obtains a devise by fraud, he is treated as a trustee of the injured parties. In all these, and many other cases which might be mentioned, courts of equity undo what has been done, if wrong ; and do what has been left undone, if right. § 440. We may conclude this head, by calling the attention of the reader to the remark (which has been necessarily introduced in another place), that courts of equity will exercise a concurrent juris- diction with courts of law in all matters of fraud, excepting only of fraud in obtaining a will, which, if of real estate, was consistently referred to a court of law to decide it, and which, if of personal estate, was cognizable in the Court of Probate. But, even in this ease, the bill might be retained, to abide the decision in the proper court, and relief be decreed according to the event. No other excepted case is known to exist; and it is not easy to discern the grounds upon which this exception stands, in point of reason or principle, although it is. clearly settled by authority. But where the fraud did not go to the whole will, but only to some particular clause ; or where the fraud was in unduly obtaining the consent of the next of kin to the probate, courts of equity laid hold of these circumstances to declare the executor a trustee for the next of kin (e). (e) Allen v. McPherson, 1 H. L. C. 191; Meluish v. Milton, 3 Ch. D. 27; Priest- man V. Thomas, 9 P. D. 210. § 440 — 442.] ACCOUNT. 17T CHAPTER VIII. ACCOUNT. § 441. Having disposed of these three great heads of concurrent equitable jurisdiction in matters of accident, mistake, and fraud, the undisputed possession of which has belonged to courts of equity from the earliest period which can be traced out in our judicial annals, we may now pass to others of a different and less extensive character. We allude to the heads, where the jurisdiction, although it may attach upon any or all of the grounds above mentioned, is not necessarily dependent upon them, and, in fact, is exercised in a variety of cases where they do not apply, upon another distinct ground, namely, that the subject-matter is, per se, within the scope of equitable jurisdiction. Among these are matters of account, and, as incident thereto, matters of apportionment, contribution, and average ; liens, rents, and profits ; waste; matters of administration, legacies, and marshalling of assets; confusion of boundaries ; matters of dower ; marshalling of securities ; matters of partition ; matters of partnership ; and, lastly, matters of rent, so far as they are not embraced in the preceding head of Account. § 442. Xet us begin with matters of Account. One of the most ancient forms of action at the common law is the action of account. But the modes of proceeding in that action, although aided from time to time by statutable provisions, were found so very dilatory, incon- venient, and unsatisfactory, that as soon as courts of equity began to assume jurisdiction in matters of account, as they did at a very early period, the remedy at law began to decline; and, although some efforts were made in subsequent times to resuscitate it in England, it fell into almost total disuse (a). Courts of equity for a long time exercised a general jurisdiction in all cases of mutual accounts, upon the ground of the inadequacy of the remedy at law ; and extfended the remedy to a vast variety of cases (such as to implied and constructive trusts) to which the remedy at law never was applied (b). The jurisdiction extended, not only to cases of an equit- (a) See Att.-Gen. v. Dublin Corporation, 3 Bli. N. S. 314. In Godfrey v. Saunders, 3 Wils. 73, 113, 117, which is one of the few modern actions of account in England, Lord Chief Justice Wilmot said (p. 117), " I am glad to see this action of account is revived in this court." But the parliamentary commissioners, in their second report on the common law, 8th March, 1830 (pp. 9, 25, 26), had no scruple to admit its inconvenience and dilatorinees, and that it had gone into disuse. (b) See Corporation of Carlisle v. Wilson, 13 Ves. 275. E.J. 12 178 EQUITY JURISPRUDENCE. [CH. VIII. able nature, but to many cases where the form of the account was purely legal, and the items, constituting the account, were founded on obligations purely legal. § 443. The difficulties in the modes of proceeding in common law actions of account, and the' convenience of the modes of proceeding in suits in equity, to attain the ends of substantial justice, are stated in an elementary work of solid reputation, with great clearness and force. The language of one learned author is as follows: " The proceedings in this action being difficult, dilatory, and expensive, it is now seldom used, especially if the party have other remedy, as debt, covenant, case, or if the demand be of consequence, and the matter of an intricate nature; for, in such a case, it is more advisable to resort to a court of equity, where matters of accompt are more commodiously adjusted, and determined more advantageously for both parties ; the plaintiff being entitled to a discovery of books, papers, and the defendant's oath; and, on the other hand, the defendant being allowed to discount the sums paid or expended by him ; to discharge himself of sums under forty shillings by his own oath ; and if by answer or other writing he charges himself, by the same to discharge himself, which will be good, if there be no other evidence. Further, all reasonable allowances are made to him ; and if after the accompt is stated, anything be due to him upon the balance, he is entitled to a decree in his favour " (c). § 444. To expound and justify the truth of these remarks, it may be well to take a short review of the old action of account, and to see to what narrow boundaries it was confined, and by what embarrass- ments it was surrounded. § 445. At the common law, an action of account lay only in cases where there was either a privity in deed, by the consent of the party, as against a bailiff or receiver appointed by the party, or a privity in law, ex provisione legis, as against a guardian in socage (d). An ex- ception, indeed, or rather an extension of the rule, was, for the benefit of trade and the advancement of commerce, allowed in favour of and between merchants; and therefore, by the law-merchant, one naming himself a merchant might have an account against another, naming him a merchant, and charge him as receiver (e). But, in truth, in almost every supposable case of this sort, there was an established privity of contract. With this exception, however (if such it be), the action was strictly confined to bailiffs, receivers, and guardians, in socage (/). So strictly was this privity of contract construed, that (c) Bac. Abr. Accompt. See, also, Att.-Gen. v. Dublin Corporation, 3 Bli. N. S. 312. (d) 1 Co. Litt. 90 b ; ibid. 172 o ; 2 Ponbl. Eq. B. 2, ch. 7, § 6, and note ; Bac. Abr. Accompt, A. ; Com. Dig. Accompt, A. 1 ; 2 Inst. 379. (e) Co. Litt. 172 a; Earl of Devonshire's case, 11 Co. 89. {/) BuUer, N. P. 127; 1 Eq. Abr. 5, note (a); 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note (n); Co. Litt. 172 a; 2 Inst. 379. § 443—446.] ACCOUNT. 179 the action did not lie by or against executors and administrators. The statute of 13 Edw. 3, c. 28, gave it to the executors of a merchant; the statute of 25 Edw. 3, c. 5, gave it to the executors of executors; and the statute of 31 Edw. 3, c. 11, to administrators (g). But it was not until the statute of 3 & 4 Anne, c. 16, that it lay against executors and administrators of guardians, bailiffs, and receivers (h). § 446. But in all cases of this latter sort, although there was no remedy at the common law, yet a bill in equity might be maintained for an account against the personal representatives of guardians, bailiffs, and receivers; and such was the usual remedy prior to the remedial statute of Anne (?). And no action of account lay at the common law against wrongdoers (fc) ; or by one joint-tenant, or tenant in common, or his executors or administrators, against the other, as bailiff, for receiving more than his share ; or against his executors or administra- tors, unless there was some special contract between them, whereby the one made the other his bailiff ; for the relation itself was held not to create any privity of contract by operation of law (!)■ This defect was afterwards cured by the statute of the 3 & 4 Anne, c. 16 (m). The common law was strict, as to who was to be accounted a bailiff or receiver; for a bailiff was understood to be one who had the adminis- tration and charge of lands, goods, and chattels, to make the best benefit for the owner, and against whom, therefore, an action of account lie for the profits, which he had made, or might, by his industry or care, have reasonably made : his reasonable charges and expenses being deducted (n). A receiver was one who received money to the use of another to render an account ; but upon his account he was not allowed his expenses and charges, except in the case of merchant receivers. And this exception was provided (as it was said) by the law of the land in favour of merchants, and for the advancement of trade and traffic (o). So that it will be at once perceived, from these cases (and many others might be mentioned (p)) that the remedy at the common law was very narrow ; and although it was afterwards enlarged, that would not of itself displace the jurisdiction originally vested in courts of equity. (g) Co. Litt. 90 b. (h) Ibid. ; Buller, N. P. 127 ; Earl of Devonshire's Case, 11 Co. 89. (t) 1 Eq. Cas. Abr. 5, note (o). (k) Bac. Abr. Accompt, B. We shall presently see that courts of equity fre- quently administer relief in cases of account against wrongdoers. See Bac. Abr. Accompt, B. ; Bosanquet v. Dashwood, Cas. temp. Talb. 38, 41. (Z) Co. Litt. 172, and Harg. note (8) ; Co. Litt. 186 o, 119 b, and Harg. note (83) ; Wheeler v. Home, Willes 208 ; Bac. Abr. Accompt, A. ; 1 Saund. 216, Williams's note. (m) 3 Black. Coram. 364. (n) Co. Litt. 172. (o) Ibid. 172 ffl. (p) See Bac. Abr. Accompt, B., C. ; Com. Dig. Accompt, A., B., D. ; 8 Eeevea 337, 836, 839; 3 Beeyes 337 ; 3 Reeves 75, 76 ; 4 Reeves 388. 180 EQUITY JURISPRUDENCE. [CH. VIII. § 446a. In the next place, as to the modes of proceeding in actions of account. At the common law, before either the statute of Marlebridge, c. 23, or of Westminster 2nd, c. 11, there were two methods of proceeding against an accountant; one, by which the party, to whom he was accountable, might, by consent of the accountant, either take the account himself, or assign an auditor or auditors to take it; and then have his action of debt for the arrearages; or, in more modern times, an action on the case, or insimul computassent . And the accountant, if aggrieved, might have his writ of ex parte talis, to re-examine the account in the exchequer. The other proceeding of the plaintiff was, in the first instance, by way of a writ of account. The process, by which this latter remedy might be made more effectual, is particularly described in the statute of Marlebridge, and the statute of Westminster 2nd, upon which it is unnecessary to dwell (5). § 447. In the action of account, there were two distinct courses of proceeding. In the first place, the party might interpose any matter in abatement or bar of the proceeding ; and if he failed in it, then there was an interlocutory judgment, that he should account {quod computet) before auditors (r). After this judgment was entered, it was the duty of the court to assign auditors, who were armed with authority to convene the parties before them, de die in diem, at any time or place they should appoint until the accounting was determined. The time by which the account was to be settled was prefixed by the court. But, if the account were of a long or confused nature, the court would, upon the application of the parties, enlarge the time. In taking the account, the auditors in an action of account at the common law could not administer an oath, except in one or two particular cases. But, under the statute of 3 & 4 Anne, c. 16, the auditors were empowered to administer an oath, and examine the parties touching the matters in question, in cases within that Act (s). § 448. If, in the progress of the cause before the auditors, when the items were successively brought under review, any controversy should arise before the auditors, as to charging or discharging any items, the parties had a right, if the points involved matters of fact, to make up and join issues upon such items respiectively ; and, if the points involved matters in law, they had a right in like manner to put in and join demurrers upon each distinct item. These issues, when so made up, were to be certified, by the auditors, to the court; and then the matters of law were decided by the court; and the matters of fact were tried by a jury, after which the accounts were settled by the auditors according to the results of these trials. From this circumstance the proceedings before the auditors were often (q) Com. Dig. Accompt, A., and note (a); 3 Reeves 75, 76. (r) 3 Black. Coram. 164; O'Connor v. Spaight, 1 Sch. & Lefr. 309. (s) Co. Litt. 199, and Harg. note (83); Wheeler v. Home, Willes i208, 210; 1 Selwyn, N. P. 6; Buller, N. P. 127; Bao Abr. Wager of Laio, C. § 446o — 450.] ACCOUNT. 181 tedious, expensive, and inconvenient (<),- And, indeed, as different points both of fact and law might arise in different stages of the suit and in different examinations before the auditors, as vcell after as before such issues had been joined and tried, it ought not to be sur- prising, that the cause should be procrastinated for a great length of time, by its transition from one tribunal to another, for the various purposes incident to a due settlement of its merits. And besides these difficulties, there were many actions of account in which the defen- dant might wage his law, and thus escape from answering his adversary's claim (m). § 449. This summary view of the modes of proceeding in the action of account is sufficient to show, that it was a very unfit instrument to ascertain and adjust the real merits of long, complicated, and cross accounts. In the first place, it was inapplicable to a vast variety of cases of equitable claims, of constructive trusts, of fraudulent con- trivances and of tortious misconduct. In the next place, there was a want of due power to draw out the proper proofs from the party's own conscience ; so that if evidence aliunde was unattainable, there was, and there could be, no effective redress. And it has been well observed by Mr. Justice Blackstone, that, notwithstanding all the legislative provisions in aid of the common-law action of account, " it is found by experience, that the most ready and effectual way to settle these matters of account is by a 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 " {x). § 450. Courts of equity, in suits of this nature, proceed, in many respects, in analogy to what is done at law. The cause is referred to a master (acting as an auditor), before whom an account is taken, and he is armed with the fullest powers, not only to examine the parties on oath, but to make all the inquiries by testimony under oath, and by documents and books and vouchers, to be produced by the parties, which are necessary for the due administration of justice. And when his report is made to the court, any objections which have been made before the master, and any exceptions taken to his report, may be re-examined by the court at the instance of the parties, and the whole case is moulded as, ex ssquo et bono, may be required {y). The court may, besides, bring all the proper parties in interest before it, where there are different parties concerned in interest; and, if any doubt arises upon any particular demand, it may direct the same to be ascertained by an issue and verdict at law. So that there cannot be {t)Ex ■parte Bax, 2 Ves. 388; Bac. Abr. Accompt, P.; BuUer, N. P. 127, 128; Yelverton, 202, Metcalf's note (1). («) Com. Dig. Pleader, 2 W. 45; Co. Litt. 90 b ; ibid. 295 b ; Archer's case, Cro. Eliz. 579; Bac. Abr. Wager of Law, D., G. (x) 3 Black. Comm. 164. ly) Ex parte Bax, 2 Ves. 388. 182 EQUITY JURISPRUDENCE. [CH. VIII. any real doubt that the remedy in equity, in cases of account, is generally more complete and adequate than it is or can be at law (»). § 451. This has, accordingly, been considered in modern times as the true foundation of the jurisdiction. Mr. Justice Blackstone has, indeed, placed it upon the sole ground of the right of the courts of equity to compel a discovery — ' ' For want ' ' (said he) ' ' of this dis- covery at law, the courts of equity have acquired a concurrent juris- diction with every dther court in matters of account " (a). But this, although a strong, yet is not the sole ground of the jurisdiction. The whole machinery of courts of equity is better adapted to the purpose of an account in general; and in many cases, independent of the searching power of discovery, and supposing a court of law to possess it, it would be impossible for the latter to do entire justice between the parties; for equitable rights and claims, not cognizable at law, are often involved in the contest. Lord Eedesdale has justly said that, in a complicated account, a court of law would be incompetent to examine it at Nisi Prius with all the necessary accuracy (c). This is the principle on which courts of equity constantly act, by taking cognizance of matters which, though cognizable at law, are yet so involved with a complex account, that it cannot be properly taken at law; and until the result of the account is known, the justice of the case cannot appear (d). Matters of account (he had added) may, indeed, be made the subject of an action ; but an account of this sort is not a proper subject for this mode of proceeding. The old mode of proceeding upon the writ of account shows it. The only judgment was, that the party should account, and then the account was taken by the auditors. The court never went into it (e). § 452. It is not improbable that, originally, in cases of account, which might be cognizable at law, courts of equity interfered upon the special ground of accident, mistake, or fraud. If so, the ground was very soon enlarged, and embraced mixed cases not governed by these matters. The courts soon arrived at the conclusion that the true principle upon which they should entertain suits for an account in matters cognizable at law was, that either a court of law could not give any remedy at all, or not so complete a remedy as courts of equity. And the moment this principle was adopted in its just extent, the concurrent jurisdiction became almost universal, and reached almost instantaneously its present boundaries (/). (z) Corporation of Carlisle v. Wilson, 13 Ves. 278, 279. (o) 3 Black. Comm. 437. (c) O'Connor v. Spaight, 1 Sch. & Lefr. 930. See White v. Williams, 8 Ves. 193. (d) O'Connor v. Spaight, 1 Sch. & Lefr. 309; Harrington v. Churchward, 29 L J. Ch. 521. (e) Cooper, Eq PI. 134. (/) Corporation oj Carlisle v. Wilson, 13 Ves. 278. § 451—459.] ACCOUNT. 183 § 453. In virtue of this general jurisdiction in matters of account, courts of equity exercise a very ample authority over matters appa- rently not very closely connected vs'ith it, but whiclj naturally, if not necessarily, attach to such a jurisdiction. Mr. Justice Blackstone has said: " As incident to accounts, they take a concurrent cognizance of the administration of personal assets; consequently, of debts, legacies, the distribution of the residue, and the conduct of executors and administrators. As incident to accounts, they also take the concurrent jurisdiction of tithes and all questions relating thereto; of all dealings in partnership and many other mercantile transactions ; and so of bailiffs, factors, and receivers. It would be endless to point out all the several avenues in human afiairs, and in this commercial age, vchich lead to or end in accounts " (g). But it is far from being admitted that the sole origin of equity jurisdiction on these subjects arises from this source. It is one, but not the sole source. In many of these cases, as well as in others, which will hereafter be considered, in which accounts may be taken as incidents to the relief granted, there are other distinct, if not independent, sources of jurisdiction; and especially one source, which is the peculiar attribute of courts of equity, the jurisdiction over trusts, not merely express, but implied and constructive. § 458. Courts of equity also entertained jurisdiction in matters of account, not only when there were mutual accounts, but also when the accounts to be examined were on one side only, and a discovery was wanted in aid of the account, and was obtained. But where there were no mutual demands but a single matter on one side, and no discovery was required, a court of equity would not entertain juris- diction of the suit, although there might be payments on the other side, which might be set oS ; for in such a case, there was not only a com- plete remedy at law, but there was nothing requiring the peculiar aid of equity, to ascertain or adjust the claim (h). To found the juris- diction, in cases of a claim of this sort, there should be a series of transactions on one side, and of payments on the other. § 469. So that, on the whole, it may be laid down as a general doctrine, that in matters of account, growing out of privity of con- tract, courts of equity had a general jurisdiction where there were mutual accounts (and a fortiori, where the accounts were complicated), and also where the accounts were on one side, but a discovery was sought, and was material to the relief. And, on the other hand, where the accounts were all on one side, and discovery was not sought, or if sought was not required; and also, where there was a single matter on the side of the plaintiff seeking relief, and mere sets off on the other (g) 3 Black. Coram. 437. (h) Hoare v. Ootencin, 1 Bro. C. C. 27; Mackenzie v. Johnston, i Mad. 374; Massey v. Banner, 4 Mad. 418; Frietas v. Don Santos, 1 Y. & J. 574; Blyth v. Whiffin, 27 L. T. 330. 184 EQUITY JURISPRUDENCE . [CH. VIII. side, and no discovery was sought or required ; in all such cases courts of equity would decline taking jurisdiction of the cause. The reason being that if no peculiar remedial process or functions of a court of equity was required, the claim would become a bare money claim and the court would merely administer the same functions in the same way as a court of law would in the suit. In short, it would act as a court of law (z). § 459a. So far as England is concerned the preceding discussion has become of academical interest, By force of the Judicature Act, 1873 (36 & 87 Vict. c. 66), s. 24, legal and equitable rights are concur- rently administered in all actions, but by force of section 84, sub-sec- tion 8 of the ■ same statute matters of account are allocated to the Chancery Division, which alone has the proper administrative machinery. Actions for an account involving the taking of an account may come before the King's Bench Division, and in that event the provisions of section 14 of the Arbitration Act, 1889 (52 & 53 Vict, c. 49), enable the judge to refer cases, if the question in dispute consists wholly or in part of matters of account, to a " special referee or arbitrator " or to an " official referee or officer of the court." § 459b. By the Eules of the Supreme Court, 1883, Order XV. r. 1, where a writ of summons has been indorsed for an account under Order III. r. 8, of the same Eules, or where the indorsement involves taking an account, if the defendant either fails to appear, or does not, after appearance by affidavit or otherwise, satisfy the court or a judge that there is some preliminary question to be tried, an order for the proper accounts, with all necessary inquiries and directions, now usual in the Chancery Division in similar cases, shall be forthwith made. § 459c. Appropriation. In matters of account where several debts are due by the debtor to the creditor, it often becomes material to ascertain to what debt a particular payment made by the debtor is to be applied. This is called in our law the appropriation of payments. It is called in the foreign law the imputation of payments (k), a phrase apparently borrowed from the Eoman law, where the doctrine of the appropriation of payments is carefully examined, and the leading distinctions applicable to it amply discussed (l). The doctrine may, of course, find a place wherever there exist separate and independent debts between the parties ; but it is chiefly in cases of running accounts between debtor and creditor, where various payments have been made and various credits have been given at different times, that its applica- tion is felt in its full force and importance, especially where the dealings have been with a firm, as, for example, with bankers, and one (i) Hoare v. Cotencin, 1 Bro. C. C. 27; Mackenzie v. Johnston, i Mad. 374; Massey v. Banner, 4 Mad. 413; Frietas v. Don Santos, 1 Y. & J. 574; Blyth v. Whiffin, 27 L. T. 330. (k) Pothier on Oblig. by Evans, n. 528 (ibid. n. 661, Fr. edit. 1824). (l) Pothier, Pand. Lib. 46, tit. 3, n. 89 to 103. § 459a— 459d!.] account. 185 or more of the partners have deceased, and the customer still continues his dealings with the new firm, or the survivors of the old firm, and moneys have been paid in, and drawn out, from time to time (m). The same question often occurs, in cases of public officers, where sureties have given different bonds, at different times, for the faithful performance of the official duties, in respect of moneys received by them at different periods, embracing one or more of the bonds. How, in such cases, where running accounts are kept of debts and payments, of credits and receipts, are the payments, made at different times, before and after the change of the firm, or the change of sureties, to be appropriated? In the first place, in the case of running accounts between parties, where there are various items of debt on one side, and various items of credit on the other side, occurring at different times, and no special appropriation of the payments is made by either party, the successive payments or credits are to be applied to the discharge of the items of debit, antecedently due, in the order of time in which they stand in the accounts ; or, in other words, each item of payment or credit is applied in extinguishment of the earliest items of debt standing in the account, until the whole payment or credit is exhausted (n). In the next place, where there are no running accounts between the parties, and the debtor himself makes no special appropriation of any payment, there the creditor is generally at liberty to apply that pay- ment to any one or more of the debts which the debtor owes him, whether it be upon an account or otherwise (o). § 459d. The Roman law proceeded, in a great measure, if not altogether, upon similar principles. But according to that law, the election was to be made at the time of payment, as well in the case of the creditor as in that of the debtor : " In re prsesenti, hoc est statim atque solutum est: — 'Caeterum pdstea non permittitur " (p). If neither applied the payment, the law made the appropriation according to certain rules of presumption depending on the nature of the debts or the priority in which they were incurred. And as it was the actuiil intention of the debtor, that would, in the first instance, have governed ; so it was his presumable intention that was first resorted to as the rule by which the application was to be determined. In the absence, there- fore, of any express declaration by either, the inquiry was, What application would be most beneficial to the debtor? The payment was consequently applied to the most burdensome debt, — to one that carried interest, rather than to that which carried none, — to one (m) Bank of Scotland v. Christie, 8 CI. & P. 214. (n) Clayton's Case, 1 Meriv. 572; Bodenlmm v. Purchas, 2 B. & Aid. 39; Simson v. Cooke, 1 Bing. 452; Simson v. Ingham, 2 B. & C. 65; Copland v. Toulmin, 7 CI. & F. 349; Bank of Scotland v. Christie, 8 CI. & P. 214. (o) Bosanquet v. Wray, 6 Taunt. 597; Brooke v. Enderby, 2 Brod. & Bing. 70; Kinnaird v. Webster, 10 Ch. D. 139; In re Sherry: London and County Bank v. Terry, 25 Ch. D. 692. (p) Dig. Lib. 46, tit. 3, f. 5. 186 EQUITY JURISPRUDENCE. [CH. VIII- secured by a penalty, rather than to that which rested on a simple stipulation ; — and if the debts were equal, then to that which had been first contracted. " In his vero, quae prassenti die debentur, constat, yuctiens indistincte quid solvitur, in graviorem causam videri 3olutuin, Bi autem nulla prsegravet, — id est si omnia nomina similia fuerint, antiquiorem " (g). Pothier, in his edition of the Pandects, has collected together all the texts of the Eoman law on this subject (?■) ; and he has summed up the general results in his treatise on Obligations (s). § 459e. In the actual application of the doctrine to cases of partnership, where a change of the firm has occurred by a dissolution by death or otherwise, the rule is, that the estate of the deceased or retiring partner is liable only to the extent of the balance due to any (9) Dig. Lib. 46, tit. 3, f. 5. (r) Pothier, Pand. Lib. 46, tit. 3, art. 1, n. 89 to 99. (s) Pothier, Oblig. by Evans, n. 528 to 535 ; ibid. n. 561 to n. 572, French, 2nd edit. 1829. It may not be without use to insert here the leading rules stated by Pothier : " First Eule. The debtor has the power of declaring on account of what debt he intends to apply the sum which he pays. The reason which Ulpian gives is evident, ' possumus enim certam legem dicere, ei quod solvimus.' According to our rule, although regularly the interest should be paid before the principal, yet if the debtor of the principal and interest, upon paying a sum of money, has declared that he paid on account of the principal, the creditor who has agreed to receive it cannot after-ftrards contest such application. Second Eule. If the debtor, at the time of paying, makes no application, the creditor to whom the money is due, for different causes, may make the application by the acquittance which he gives. It is requisite, 1st, that this application be made at the instant; 2nd, that it be equitable. Third Rule. When the application has neither been made by the debtor nor by the creditor, it ought to be made to that debt which the debtor at the time had the most interest to discharge. The application should rather be made to a debt which is not contested than to one that is ; rather to a debt which was due at the time of payment than to one which was not. Among several debts which are due the application ought rather to be made to the debt for which the debtor was liable to be imprisoned than to debts merely civil, in respect of which process could only issue against his effects. Among civil debts the application should rather be made to those which produce interest than to those which do not. The application ought rather to be made to an hypothecatory debt than to another. The application ought rather to be made to the debt for which the debtor had given sureties than to those which he owed singly. The reason is, that in discharging it, he discharges hmself from two creditors — from his principal creditor and from his surety, whom he is obliged to indemnify. Now, a debtor has more interest to be acquitted against two than against a single creditor. The application ought rather to be made for a, debt of which the person who has paid was principal debtor, than to those which he owed as surety for other persons. Fourth Eule. If the debts are of an equal nature, and such that the debtor had no interest in acquitting one rather than the other, the application should be made to that of the longest standing- Observe, that of two debts contracted the same day, but with different terms, which are both expired, the debt of which the term was the shorter, and consequently which expired sooner, is understood to be the more ancient. Fifth Eule. If the different debts are of the same date, and in other respects equal, the application should be made proportionately to each. Sixth Eule. In debts which are of a nature to produce interest, the application is made to the interest before the principal. This holds good even if the acquittance, imported that the sum was paid to the account of the principal and interest, ' in sortem et usuras.' The clause is understood in this sense, that the sum is received to the account of the principal after the interest is satisfied. Observe, that if the sum paid exceeds what is due for interest, the remainder is applied to the principal, even if the application had been expressly made to the interest, without mentioning the principal." § 459e— 459/.] account. 187 creditor at the time of the dissolution ; and that if the creditor continues to keep a running account with the survivors, or the new firm, and sums are paid to them by the- creditor, and sums are drawn on their firm, and paid by them, and are charged and credited to the general account, and blended together as a common fund, without any distinc- tion between the sums due to the creditor by the old firm and the new ; in such a case, the sums paid to the creditor are deemed to be paid upon the general blended account, and go to extinguish, pro tanto, the balance of the old firm, in the order of the earliest items thereof. " In such a case " (it has been said by a very able judge), " there is no room lor any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into the account. Presumably, it is the sum first paid in that is first drawn out. It is the first it«m on the debit side of the account that is discharged, or reduced by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts. When there has been a continuation of dealings, in what way can it be ascertained whether the specific balance, due on a given day, has or has not been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made? You are not to take the account backwards, and strike the balance at the head, instead of the foot of it. A man's banker breaks, owing him, on the whole account, a balance of £1,000. It would surprise one to hear the customer say : ' I have been fortunate enough to draw out all that I paid in during the last four years; but there is £1,000 which I paid in five years ago, that I hold myself never to have drawn out; and, therefore, if I can find anybody who was answerable for the debts of the banking-house, such as they stood five years ago, I have a right to say, that it is that specific sum which is still due to me, and not the £1,000 that I paid in last week ' " (i). This principle, as the language of the learned judge imports, only applies to an account current (u), and the creditor may be entitled to close the old account, and open a fresh one, and make that appropria- tion which shall be most favourable to him (x). § 459/. On the other hand, if, under the like circumstances, moneys have been received by the new firm, and drawn out by the creditor from time to time, and upon the whole, the original balance due to the creditor has been increased, but never at any time been diminished, in the hands of the firm; in such a case, the items of payment made by the new firm are still to be applied to the extinguish- ment of the balance of the old firm, and will discharge the share of the (t) Sir William Grant in Clayton's Case, 1 Meriv. 608, 609. (u) The Mecca, [1897] A. C. 286. (x) In re Sherry; London and County Bk. v. Terry, 25 Ch. D. 692. 188 EQUITY JURISPRUDENCE [CH. VIII. deceased or retiring partner to that extent, but no farther ; for, in such a case, the general rule as to running accounts is applied with its full force (y). A fortiori, where payments* have been made, and no new ■sums have been deposited by the creditor with the new firm, the payments will be applied in extinguishment, pro tanto, of the balance due by the old firm, in the order of the items thereof (a). § 459gr. The cases which we have hitherto been considering, are cases of running accounts ; and, under such circumstances, the rule will apply equally to cases where a part of the debt is secured by a guaranty or by sureties as well as where there are no such parties (a). But, where there are no such running accounts, if no special appro- priation is made by the debtor, the creditor may, as we have seen (b), apply the money to any legal demand which he has against the debtor, whether it be a balance of an old account, or of a new account; for in •such a case the interest of third persons is not concerned, and the case of running accounts constitutes, as it were, an implied appropriation by the parties to the account generally (c). And payments made generally by a debtor to his creditor may be applied by the creditor to a balance due to the creditor, although other debts have since been incurred, upon which the debtor has given a bond, with a surety, for security thereof (d). A creditor, having several debts due from the same debtor, has a right to ascribe a payment made indefinitely and without appropriation by his debtor, to whichever debt he may see fit to apply it, and is entitled to make this appropriation and election even at the latest hour, and whether a reasonable period after the payment has elapsed or not (e). § 459/i. The rule in Clayton's Case does not apply to the case of a trustee or any other person in a fiduciary position, who has paid trust money in to his account at his banker's, and mixed it with his own money, and afterwards drawn out money by cheques in the ordinary manner, on the ground that we must presume a man' intended to act rightly, unless we have proof to the contrary, and that therefore a {y) Palmer's Case, 1 Meriv. 623, 624; Sleech's Case, 1 Meriv. 538; Bodenham v. Furchas, 2 B. & Aid. 39. See In re Mason, 3 Mont. Deac. & De G. 490; Law Maga- zine, May 1845, p. 184. (z) Sleech's Case, 1 Meriv. 538, &c. (a) Where a compromise of three different debts was made for a sum less than their face, payment to be made by instalments, and if any instalment not paid, creditor to be remitted to his original rights, and on the first debt a judgment had been recovered, making it a lien on land : Held, that as against subsequent incumbrancers an instalment must be applied pro ratA to the three debts. Thompson v. Hudson, li. R. 6 Ch. 320. (fc) Ante, § 459 b. (c) Bosanquet v. Wray, 6 Taunt. 597; Brooke v. Enderby, 2 Brod. & Bing. 70. (d) Kirby v. Duke of Marlborough, 2 M. & S. 18; Williams v. Rawlinson, 3 Bing. 71. (e) Clayton's Case, 1 Mer. 606 ; Simson v. Ingham, 2 B. & C. 65 ; Hooper v. Keay, 1 Q. B. D. 178; Friend v. Young, [1897] 2 Ch. 421; Seymour v. Pickett, [1905] 1 K. B. 715. § 46%— 462.] ACCOUNT. 189 trustee must be considered to have drawn out his own money, in prefer- ence to the trust money, unless clearly intended for the purposes of the' trust (/). It was held also in the case which decided this point by ^^y, J-. that as between two cestuis que trust whose money the trustee has paid in to his own account at the banker's, the rule in Clayton's Case does apply, but the Court of Appeal pronounced no opinion on this point. § 460. In cases of account not founded in any such privity of con- tract, but founded upon relations and duties required by law, or upon torts and constructive trust, for which equitable redress is sought, it is more difficult to trace out a distinct line, where the legal remedy ends, and the equitable jurisdiction begins. § 461. In our subsequent examination of this branch of jurisdiction, it certainly would not be going beyond its first boundaries to include within it all subjects which arise from the two great sources already indicated, and terminate in matters of account ; namely, first, such as have their foundation in contract, or quasi contract, and, secondly, such as have their foundation in trusts, actual or constructive, or in torts affecting property. But, as many cases included under one head are often connected with principles belonging to the other, and as the jurisdiction of courts of equity is often exercised upon various grounds, not completely embraced in either ; or upon mixed considerations ; it will be more convenient, and perhaps not less philosophical, to treat the various topics under their own appropriate heads, without any nice discrimination between them. We may thus bring together in this place such topics only as do not seem to belong to more enlarged sub- jects, or such as do not require any elaborate discussion, or such as peculiarly furnish matter of illustration of the general principles which regulate the jurisdiction. § 462. Let us, then, in the first place, bring together some cases arising ex contractu, or quasi ex contractu, and involving accounts. And here, one of the most general heads is that of agency, where one person is employed to transact the business of another for a recompense or compensation. The most important agencies of this sort which fall under the cognizance of courts of equity, are those of solicitors, factors, bailiffs, consignees, receivers, and stewards. In most agencies of this sort, there are mutual accounts between the parties ; or, if the account is on one side, as the relation naturally gives rise to great personal confidence between the parties, it rarely happens that the principal is able, in cases of controversy, to establish his rights, or to ascertain the true state, of the accounts, without resorting to a discovery from the agent. Indeed, in cases of factorage and consignments, and general receipts and disbursements of money by receivers and stewards, it can scarcely be possible, if the relation has long subsisted, that very (/) Knatohbull v. Hughes Hallett, 13 Ch. D. 696. 190 EQUITY JURISPRUDENCE. [CH. VIII. intricate and perplexing accounts should not have arisen, where, inde- pendently of a discovery, the remedy of the principal would be utterly nugatory, or grossly defective. It would be rare, that specific sales and purchases, and the charges growing out of them, could be ascer- tained and traced out with any reasonable certainty; and still more rare, that every receipt and disbursement could be verified by direct and positive evidence. Courts of equity in all such agencies require that the agent should keep regular accounts of all his transactions, with suitable vouchers (g). And it is obvious, that if he can suppress all means of access to his books of account and vouchers, the principal would be utterly without redress, except by the searching power of discovery, and the close inspection of all books, under the authority and guidance of a master in chambers. The legal obligation of an agent to keep accounts may be displaced by the terms of his appoint- ment, and this may be inferred from a course of dealing between the principal and his agent (h). Besides, agents are not only responsible for a due account of all the property of their principals, but also for all profits which they have clandestinely obtained by any improper use of that property (;). And the only adequate means of reaching such profits must be by discovery. In cases of fraud, also, it is almost impracticable to thread all the intricacies of its combinations, except by searching the conscience of the party, and examining his books and vouchers (fe). An agent could not maintain a suit in equity against his principal for an account unless he made out a special case, and a servant who was to be remunerated by a share of the profits stood in the same situation (1). § 463. In agencies also of a single nature, such as a single consign- ment, or the delivery of money to be laid out in the purchase of an estate, or of a cargo of goods ; or to he paid over to a third person ; although a suit at law may be often maintainable, yet, if the thing lie in privity of contract and personal confidence, the aid of a court of equity is often indispensable for the attainment of justice. Even when not indispensable, it may often be exceedingly convenient and effectual, and prevent a multiplicity of suits. The party in such cases often has an election of remedy. This doctrine was expounded with great clearness and force by Lord Chief Justice Willes, in delivering the opinion of the court, in a celebrated case. Speaking of the pro- priety of sometimes resorting to a suit at law, he said: " Though a l)ill in equity may be proper in several of these cases, yet an action (g) Pearce v. Green, 1 Jac. & Walk. 135; Clarke v. Tipping, 9 Beav. 284; Make- peace v. Rogers, i De G. J. & S. 649. See Gookes v. Cookes, 9 Jur. N. S. 843. (h) Tindall v. Powell, 4 Jur. N. S. 944. Cj. Lord Salisbury v. Wilkinson, cited 6 Vea. 48. (i) Massey v. Davies, 2 Vea. Jun. 318. (k) Earl of Hariwicke v. Vernon, 14 Ves. 510. (I) Harrington v. Churchward, 29 L. J. Ch. 521; Smith v. Leveaux, 2 De G J & &. 1. § 463—465.] ACCOUNT. 191 at law will lie likewise. As if I pay money to another, to lay out in the purchase of a particular estate, or any other thing, I may either bring a bill against him, considering him as a trustee, and praying that hfi may lay out the money in that specific thing; or I may bring an action against him, as for so much money had and received for my use. Courts of equity always retain such bills, when they are brought under the notion of a trust; and therefore, in this very case [a con- signment to a factor for sale], they have often given relief, where the party might have had his remedy at law, if he had thought proper to proceed in that way " (m). § 464. Perhaps the doctrine here laid down, although generally true, is a little too broadly stated. The true source of jurisdiction in such cases, is not the mere notion of a virtual trust; for then equity jurisdiction would cover every case of bailment. But it took its rise from the necessity of reaching the facts by a discovery ; and having jurisdiction for such a purpose, the court, to avoid multiplicity of suits, then proceeded to administer the proper relief (n). And hence it is that in the case of a single consignment to a factor for sale, a court of equity would entertain the suit for relief, as well as discovery; there being accounts and disbursements involved, which, generally speaking, could not be so thoroughly investigated at law (o), although (as we have seen) a court of equity was cautious of entertaining suits upon a single trans- action, where there were not mutual accounts. Nay, so far had the doctrine been carried, that even though the case might appear, as a matter of account, to be perfectly remediable at law ; yet if the parties had gone on to a hearing of the merits of the cause, without any preliminary objection being taken to the jurisdiction of the court upon this ground, the court would not then suffer it to prevail, but would administer suitable relief. § 465. Cases of account between trustees and cestuis que trust may properly be deemed confidential agencies, and are peculiarly within the appropriate jurisdiction of courts of equity. The same general rules apply here, as in other cases of agency. A trustee is never permitted to make any profit to himself in any of the concerns of his trust (p). On the other hand, he is not liable for any loss which occurs in the discharge of his duties, unless he has been guilty of negligence, malversation, or fraud, the burden being upon him to show matter of justification in order to relieve himself from liability (q). The same doctrine is applicable to cases of guardians and wards, and other (m) Scott V. Surman, Willes 405. (n) Ante, § 71 ; 3 Black. Coram. 437 ; Mackenzie v. Johnston, 4 Mad. 374 ; Pearce V. Green, 1 Jac. & Walk. 135. (o) Mackenzie v. Johnston, i Mad. 374; Barry v. Stevens, 31 Beav. 258. (p) Fox V. Mackreth, 2 Bro. C. C. 400; 2 Cox 158, 320; 4 Bro. P. C. 258; Docker V. Somes, 2 M. & K. 655. (g) Jones v. Lewis, 2 Ves. Sen. 241; Job v. Job, 7 Ch. D. 562; Briggs v. Massey, 51 L. J. Ch. 447 ; In re Brogden ; Billing v. Brogden, 38 Ch. D. 546. 192 EQUITY JUEISPRUDENCE. [CH- VlII, relations of a similar nature. Directors of private companies are not allowed to make a clandestine profit out of their dealings with the companies which they manage (r). § 466. Cases of account between partners, between part-owners of ships, and between owners of ships and the masters, fall under the like considerations. They all involve peculiar agencies like those of bailiffs, or managers of property, and require the same operative power of discovery, and the same interposition of equity (s). The learned author compared the liability of a co-owner of property to account in equity (f) or under the statute of 4 Anne, c. 16, to his co-owner for receiving more than his share to that of a bailiff, but this view has been judicially denied (u). § 467. In many cases of frauds by an agent a court of common law cannot administer effectual remedies; as, for instance, it cannot give damages against his estate for a loss arising from his tort-s, when such torts die with the person ; and a fortiori, the rule will apply to courts of equity, which did not, as the Chancery Division is bound to do by the Judipature Act, 1873, entertain suits for damages. But, where the tort arises, in the course of an agency, from a fraud of the agent, and respects property, courts of equity did treat the loss sustained as a debt against his estate (a;). § 468. Courts of equity adopt very enlarged views in regard to the rights and duties of agents; and in all cases where the duty of keeping regular accounts and vouchers is imposed upon them, they will take care that the omission to do so shall not be used as a means of escaping responsibility, or of obtaining undue recompense. If an accountable party does not keep proper and regular accounts and retain vouchers (where it is customary to give receipts) (y), the court may make a penal order, fixing the accountable party with a sum arbitrarily assessed (z) ; further than this he vs'ill not be allowed the compensation vy^hich otherwise would belong to his agency (a). Upon similar grounds, as an agent is bound to keep the property of his principal distinct from his own, if he mixes it up with his own, the whole will be taken, both at law and in equity, to be the property of the principal until the agent puts the subject-matter under such circumstances that it may be (r) Benson v. Heathorn, 1 Y. & C. Ch. 326; Tyrrell v. Bank of London, 10 H L. C. 26. (s) Green v. Briggs, 6 Hare, 395; Turquand v. Wilson, 1 Ch. D. 85. (t) Denys v. Shuckburgh, i Y. & C. Ex. 42; Job v. Cordeaux, i W. R. 806; Job V. Potton, L. E. 20 Bq. 84. (u) Kennedy v. De Trafford, [1897] A. C. 180. (x) Lord Hardwicke v. Vernon, 4 Ves. 418. iy) Skipieorth v. Skipworth, 9 L. J. N. S. Ch. 182; Cookes v. Gookes, 9 Jur. N S. 843. (z) Walmsley v. Walmsley, 3 Jo. & L. 556; Duke of Leeds v. Earl of Amherst 20 Beav. 239. (a) WJnte v. Lady Lincoln, 8 "Ves. 363; Gray v. Haiq, 20 Beav. 219. Gf. Andrews V. Ramsay, [1903] 2 K. B. 635. § 464 — 470.] ACCOUNT — appoetionment. 193 distinguished as satisfactorily as it might have been before the unauthorized mixture on his part (b). In other words, the agent is put to the necessity of showing clearly what part of the property belongs to him; and soi far as he is unable to do this, it is treated as the property of his principal. Courts of equity do not in these oases proceed upon the notion that strict justice is done between the parties; but upon the ground that it is the only justice that can be done; and that it would be inequitable to suffer the fra,ud or negligence of the agent to prejudice the rights of his principal (c). § 469. Another head is that of Apportionment, Contribution, and General Average, which are in some measure blended together, and require and terminate in accounts. In most of these cases, a discovery is indispensable for the purposes of justice ; and where this does not occur, there were other distinct grounds for the exercise of equity jurisdiction, in order to avoid circuity and multiplicity of actions. Some cases of this nature spring from contract; others, again, from a legal duty, independent of contract; and others, again, from the principles of natural justice, confirming the known maxim of the law, Qui sentit ccnnmoduvt, sentire debet et onus. The two latter may, therefore, properly be classed among obligations resulting quasi ex contractu (d). This will abundantly appear in the sequel of these Commentaries. § 470. And first, as to Apportionment and Conteibution, which may conveniently be treated together. Lord Coke has remarked that the word apportionment " cometh of the word portio, quasi partio, which signifieth a part of the whole, and apportion signifieth a division of a rent, common, &o., or a making of it into parts " (e). It is sometimes used to denote the distribution of a common fund, or entire subject among all those who have a title to a portion of it (/). Sometimes, indeed, in a more loose but an analogous sense, it is used to denote the contribution, which is to be made by different persons, having distinct rights, towsCrds the discharge of a common burden or charge to be borne by all of them. In respect, then, to apportionment in its application to contracts in general, it is the known and familiar principle of the common law, that an entire contract is not apportionable. The reason seems to be, that as the contract is founded upon a consideration dependent upon the entire performance of the act, and if from any cause it is not wholly per- formed, the casus foederis does not arise, and the law will not make provisions for exigencies which the parties have neglected to provide (6) Lupton V. White, 15 Ves. 432; re Oatway ; Hertslet v. Oatway, [1903] 2 Ch. 356. (c) Lupton V. White, 16 Ves. 432, 441. id) Dering v. Ear), of Winchelsea, 1 Cox 318 ; s.c. 2 Bros. & Pul. 270. (e) Co. Litt. 1476. (/) Ex parte Smyth, 1 Swanst. 338, 339, the reporter's note. E.J. 13 194 EQUITY JURISPRUDENCE. [CH. VIII. for themselves. Under such circumstances, it is deemed wholly immaterial to the rights of the other party, whether the non- performance has arisen from the design or negligence of the party bound to perform it, or to inevitable casualty or accident (g). In each case the contract has not been completely executed. The same rule is applied to cases where the payment is to be made under a contract upon the occurrence of a certain event or upon certain conditions. In the application of this doctrine of the common law, courts of equity have generally, but not universally, adopted the maxim, Mquitas sequitur legem (h). Whether rightly or wrongly, it is now too late to inquire, although, as a new question, there is much doubt, whether in so adopting the maxim they have not in many eases deserted the principles of natural justice and equity, as well as the analogies by which they were governed in other instances, in which they have granted relief. We have already had occasion to cite cases in which this rigid doctrine as to non-apportionment has been applied (i). There are, however, some exceptions to the rule both at law and in equity, which we shall presently have occasion to consider, and some in which courts of equity have granted relief, where it would at least be denied at law (fc). § 471. At the common law, the cases were few in which an apportionment under contract was allowed, and general doctrine being against it, unless specially stipulated by the parties. Thus, for instance, where a person was appointed collector of rents for another, and was to receive £100 per annum for his services; and he died at the end of three-quarters of the year, while in the service ; it was held, that his executor could not recover £75 for the three-quarters' service, upon the ground that the contract was entire, and there could be no apportionment; for the maxim of the law is. Annua nee debitum judex non separat ipsum (I). So, where the mate of a ship engaged for a voyage at thirty guineas for the voyage, and died during the voyage, it was held, that at law there could be no appor- tionment of the wages (m). § 472. Courts of equity, to a considerable extent, act upon this maxirn of the common law in regard to contracts. The Court of Chancery, upon some supposed equity, allowed a claim in special cases, for the return of an apportioned part of an apprenticeship (g) Paradine v. Jane, Aleyn 26, 27; Story on Bailments, § 36; Ex parte Smyth, 1 Swanst. 338, 339, the reporter's note, and cases cited. (h) Post, § 483. (i) Ante, §§ 101 to 104. (ft) Post, §§ 472, 479. (!) Co. Litt. 150o,- Countess of Plymouth v. ThrogmoHon, 1 Salk. 65, 3 Mod. 153. (m) Cutter v. Powell, 6 T. E. 320. See now Merchant Shipping Act, 1894, ss. 156, 157, and Button v. Thompson, L. E. 4 C. P. 330. in) Hirst v. Tolson, 2 Mac. & G. 34; Webb v. England, 29 Beav. 44. See ante, § 89. § 471 — 475.] ACCOUNT — apportionment. • 195 premium (n). Even a court of common law was beguiled into committing the same error where the master was a solicitor, and deciding " according to law and conscience, and not by any technical rules " in the exercise of an assumed jurisdiction over solicitors as officers of the court (o). In modem times a general or particular jurisdiction to disregard the law of contract has been disclaimed (p). " Courts of equity do not rectify contracts," said James, V.-C. (pp). The proper course is to make a return of the premium the subject- matter of express stipulation (q). An apportioned part of a premium paid upon entering into a partnership may be recovered under section 40 of the Partnership Act, 1890 (53 & 54 Viot. c. 39), which embodies the earlier law (r), and is in these terms: "Where one partner has paid a premium to another on entering into a partnership for a fixed term, and the partnership is dissolved before the expiration of that term otherwise than by the death of a partner, the court may order the repayment of the premium, or of such part thereof as it thinks just, having regard to the terms of the partnership contract and to the length of time during which the partnership has continued ; unless (a) the dissolution is wholly or chiefly due to the misconduct of the partner who' paid the premium, or (b) the partnership has been dissolved by an agreement containing no provision for a return of any part of the premium." In the case of a partner- ship, the amount to be returned is ascertained as a simple proportion sum (s). This could never be justified if the rule applied to an apprenticeship, for the value of the services of an apprentice increases progressively. § 475. In regard to rents, the general rule at the common law leaned strongly against any apportionment thereof. Hence it was well established, that, in case of the death of a tenant for life, in the interval between two periods, at each of which a portion of rent becomes due from the lessee, no rent could be recovered for the occupation since the first of these periods (t). The rule seems to have been rested on two propositions : 1st, That the entire contract cannot be apportioned. 2nd, That under a lease with a periodical reservation of rent, the contract for the payment of each portion is distinct and entire. Hence it followed, that, on the determination of a lease by the death of the lessor before the day appointed for the payment of (o) Ex parte Bayley, 9 B. & C. 691. (p) Whincup V. Hughes, L. B. 6 C. P. 78; Craven v. Stubbing, 34 L. J. Ch. 126; Ferns v. Carr, 28 Ch. D. 409. (pp) Mackenzie v. Coulson, L. E. 8 Eq. 375. (q) Derby v. Humber, L. E. 2 C. P. 247. (r) Lee v. Page, 30 L. J. Ch. 857; Atwood v. Maude, L. E. 3 Ch. 369; Lyon v. Tweddell, 17 Ch. D. 529; Edmunds v. Robinson, 29 Ch. D. 170; Yates v. Cousins, 60 L. T. 535 ; Belfield v. Bourne, [1894] 1 Ch. 521. (s) Pease v. Hewitt, 31 Beav. 22; Wilson v. Johnstone, L. E. 16 Bq. 606. (t) Clun's Case, 10 Co. 127 ; Ex .parte Smyth, 1 Swanst. 338, and note. 196 ■ EQUITY JURISPRUDENCE. [CH. VIII. the rent, the event, on the conapletion of which the payment was stipulated, namely, occupation of the lands during the period stipu- lated, never occurring, no rent became payable, and in respect of time, apportionment was not in any case permitted. § 475a. There is a rule of administration, known as the rule in Howe V. Lord Dartmouth {v.), which is discussed hereafter (x), and which entitles a remainderman of settled residuary estate (y) to require wasting property to be converted and invested in permanent securities. The tenant for life enjoys a correlative right where reversionary property falls into possession subsequently to the death of the testator to claim an apportioned part of the fund on the footing that it represents income (z). And where the testator's residuary estate consists of a debt which, owing to the insolvency of the debtor, is not received until after the testator's death, the tenant for life is entitled to an apportioned part of the sum received on the footing that it is interest (a). § 476. The common law rule as to apportionment was entirely done away with by the Apportionment Act, 1870 (33 & 34 Vict. c. 35), which embodies and extends earlier enactments (b) to the same effect and provides, s. 2: "From and after the passing of this Act, all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved, or made payable under any instrument in writing or otherwise), shall, like interest on money lent, be considered as accruing from day to day, and shall be apportion- able in respect of time accordingly." S. 3: " The apportioned part of any such rent, annuity, dividend, or other payment, shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment, when the entire portion of which such apportioned part shall form part shall become due and payable, and not before ; and in the case of a rent, annuity, or other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not so determined, and not before." S. 4: "All persons and their respective, heirs, executors, administrators, and assigns, and also the executors, administrators, and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such, apportioned parts as aforesaid when payable (allowing proportionate parts of all just allowances), as they respectively would have had for recovering such entire portions as aforesaid if entitled thereto respectively; (u) 6 Ves. 96. (x) § 1269. (y) Bethune v. Kennedy, 1 M. & Cr. 114; In re Van Stranbenzee ; Boustead v. Cooper, [1901] 2 Oh. 779. (z) In re Earl of Chesterfield's Trusts, 24 Ch. D. 643. (a) Turner v. Newport, 2 Ph. 14. (b) 11 Geo. 2, c. 19, s. 15 ; 4 & 5 Will. 4, c. 22. § 475a — 478.] account — apportionment. 197 provided that persons liable to pay rents reserved out of or charged on lands or other hereditaments of any tenure, and the same lands or other hereditaments shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically ; but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this Act, or otherwise, would have been entitled to such entire or con- tinuing rent, such apportioned part shall be recoverable from such heir or other person by the executors, or other parties entitled under this Act to the same, by action at law, or suit in equity." By s. 7, the provisions of the Act are not to extend to any case in which it is or shall expressly be stipulated that no apportionment shall take place .(c). § 477. On the other hand, cases may easily be stated where apportionment of a common charge, or, more properly speaking, where contribution towards a common charge, seems indispensable for the purposes of justice, and accordingly has been declared by the common law in the nature of an apportionment towards the discharge of a common burden. Thus, if a man, owning several acres of land, was bound in a judgment or statute or recognizance operating as a lien on the land, and afterwards he aliened one acre to A., another to B., and another to C, &c. ; there, if one alienee, was compelled, in order to save his land, to pay the judgment, statute, or recognizance, he was entitled at the common law to contribution from the other alienees (d). The same principle was applied in the^ike case, where the land descended to parceners who made partition ;• and then, one was compelled to pay the whole charge ; contribution would lie against the other parceners. The same doctrine was also applied to co- feoffees of the land, or of different parts of the land. In all these cases (and others might be mentioned), a writ of contribution would lie at the common law, or in virtue of the statute of Marlbridge (e). § 478. But there were many difficulties in proceeding in cases where an apportionment or contribution was allowed at the common law ; for, where the parties were numerous, as each was Uable to con- tribute only for his own portion, separate actions and verdicts were necessary against each. And thus a multiplicity of suits might take place, and no judgment in one suit was conclusive in regard to the amount of contribution in a suit against another person. The like difficulty might arise in cases where an apportionment was to be (c) The Apportionment Act does not apply to payments under order of court : Jodrell V. Jodrell, L. E. 7 Eq. 461; nor to parish rates : In re Wearmouth Crown Glass Company, 19 Ch. D. 640. See also Barker v. Perowne, 18 Ch. D. 180. (d) HarbeH's Case, 3 Co. 12, 13. (e) See Harbert's Case, 3 Co. lib ; Bering v. Earl of Winchelsea, 1 Cox 321 ; s.c. 2 Bos. & Pul. 270; Co. Litt. 165 a; Pitzherbert, Nat. Brev. 16. 198 EQUITY JURISPRUDENCE. [CH. VIII. made under a contract for the payment of money or rent, where the parties were numerous and the circumstances complicated. Whereat^. in equity, all parties could at once be brought before the court in a single suit; and the decree apportioning the rent was thus con- clusive upon all the parties in interest (/). § 479. But the ground of equity jurisdiction, in cases of appor- tionment of rent and other charges and claims, did not arise solely from the defective nature of the remedy at common law, where such a remedy existed. It extended to a great variety of cases where no remedy at all existed in law, and yet where, ex sequo et bono, the party was entitled to relief (g). Thus, for instance, where a plaintiff was lessee of divers lands upon which an entire rent was reserved, and afterwards the inhabitants of the town, where part of the lands lay, claimed a right of common in part of the lands so let, and, upon a trial, succeeded in establishing their right; in this case there could be no apportionment of the rent at law, because, although a right of common was recovered, there was no eviction of the land. But it was not doubted that in equity a bill was maintainable for an apportion- ment, if a suitable case for relief were made out (h). So where, by an ancient composition, a rent was payable in lieu of tithes, and the lands came into the seisin and possession of divers grantees, the composition would be apportioned among them in equity, though there might be no redress at law (i). So, where money is to be laid out in land, if the party who is entitled to the land in fee, when purchased, dies before it is purchased, the money being in the meantime secured on a mortgage, and the interest made payable half-yearly, the interest will be apportioned .in equity between the heir and the administrator of the party so entitled, if he dies before the half-yearly payment is due (fc). So, where portions are payable to daughters at eighteen or marriage, and, until the portions are due, maintenance is to be allowed, payable half-yearly at specific times, if one of the daughters should come of age in an intermediate period, the maintenance will be apportioned in equity (l). § 483. But a far more important and beneficial exercise of equity jurisdiction, in cases of apportionment and contribution, is, when incumbrances, fines, and other charges on real estate are required to be paid off, or are actually paid ofP, by some of the parties in interest (m). This subject has already come incidentally under our (/) Post, § 483 to 488. (g) Ante, § 472. (/i) Com. Dig. Chancery, 2 E., 4 N. 9; Jew v. Thirkenell, 1 Ch. Cas. 31; b.c. 3 Ch. Eep. 11. (i) Com. Dig. Chancery, 4 N. 6, cites Saville, 5. See Ayvsley v. Woodsworth, 2 Vea. & B. 331. (k) Edwards v. Countess of Warwick, 2 P. Will. 176. (!) Hay v. Palmer, 2 P. Will. 501. See also now, as to these, the Apportionment Act, 1870, supra. (m) Averall v. Wade, LI. & G. 252. § 479 — 485.] ACCOUNT — contribution — charges. 199 notice (n), but it requires a more ample examination in this place. In most cases of this sort there is no remedy at law, from the extreme uncertainty of ascertaining the relative proportions which difEerent persons, having interests of a very different nature, quality, and duration in the subject-matter, ought to pay. And when there is a remedy, it is inconvenient and imperfect, because it involves multiplicity of suits, and opens the whole matter for contestation anew in every successive litigation (o). § 484. The subject may be illustrated by one of the most common cases, that of an apportionment and contribution towards a mortgage upon an estate where the interest is required to be kept down or the incumbrance to be paid. Let us suppose a case where different parcels of land or other property are included in the same mortgage, and these different parcels or properties are aiterwards aliened to different purchasers or donees, each holding in fee and severalty the parcel sold or conveyed to himself. In such a case each purchaser or- donee is bound to contribute to the discharge of the common burden or charge in proportion to the value which his parcel bears to the whole included in the mortgage (p). But to ascertain the relative values of each is a matter of great nicety and difficulty; and unless all the different purchasers could be joined in a single suit, as before the Judicature Act, 1873, they could be in equity, although not at law, the most serious embarrassments might arise in fixing the proportion of each purchaser, and in making it conclusive upon all others. § 485. So, if there are different persons having different interests in an estate under mortgage, as, for instance, parceners, tenants for life or in tail, remaindermen, tenants in dower or for a term of years, or for other limited interests, it is obvious that the question of appor- tionment and contribution in redeeming the mortgage, as well as in payment of interest, may involve the most important and intricate inquiries ; and, to do entire justice, it may be indispensable that all the parties in interest should actually be brought before the court. Now, in a suit at the common law, this was absolutely impossible; for no persons could be made parties except those whose interest was joint and of the same nature and character, and was immediate and vested in possession. So that resort to a court of equity, where all these interests can be brought before the court and definitely ascer- tained and disposed of, is indispensable. If to this we add that, in most cases of mortgage, an account of what has been paid upon the mortgage, either by direct payments or by perception of the rents and profits of the estate, is necessary to be taken, we shall at once see that the machinery of a court of common law was very ill adapted to in) Ante, § 477. (o) Ante, § 477, 478. (p) Aldrich v. Cooper, 8 Ves. 382; Johnson v. Child, 4 Hare, 87; In re Athill; Athill V. Athill, 16 Ch. D. 211 ; In re Jones, Farrington v. Forrester, [1893] 2 Ch. 461. 200 EQUITY JURISPRUDENCE. [CH. VIII. any such purpose. But if we add, further, to all this, that there may be mesne incumbrances (5) and other cross equities between some of the parties, all of which are required to be adjusted in order to arrive at a just result, aJid to attain the fuU end of the law by closing up all future litigation, we shall not fail to be convinced that the only appropriate, adequate, and effectual remedy must be administered in equity. Indeed, from its very nature, as we shall have occasion to see fully hereafter, the jurisdiction over mortgages belongs peculiarly and exclusively to courts of equity. § 486. Very delicate, and often very intricate, questions arise in the adjustment of the rights and duties of the different parties in interest in the inheritance. In the first place, in regard to the paying off of incumbrances. Where a tenant in fee simple pays off an incumbrance the presumption is that there is a merger, and a transfer to a trustee for his benefit is not conclusive evidence that he desired to keep it alive (r). If a tenant in tail in possession pays off an incumbrance, it wiU ordinarily be treated as extinguished ; and the remainderman cannot be called upon for contribution unless the tenant in tail has kept alive the incumbrance, or preserved the benefit of it to himself by some suitable assignment, or has done some other act or thing which imports a positive intention to hold himself out as a creditor of the estate in lieu of the mortgage. The reason for this doctrine is, that a tenant in tail can, if he pleases, become the absolute owner of the estate; and, therefore, his discharge of incumbrances is treated as made in the character of owner, unless he clearly shows that he intends to discharge them and become a creditor thereby (s). But the like doctrine does not apply to a tenant in tail in remainder, whose estate may be altogether defeated by the birth of issue of another person ; for it must be inferred that such a tenant in tail, in paying off an incumbrance without an assignment, means to keep the charge alive (t). A fortiori, the doctrine will not apply to the case of a tenant in tail who is restrained by statute from barring his estate tail or to the case of a tenant for life paying off an in- cumbrance ; for, if he should pay it off without taking an assignment, he would be deemed to be a creditor to the amount paid, upon the ground that there can be no presumption that, with his limited interest, he could intend to exonerate the estate (u). He cannot be presumed, prima facie, to discharge the estate from the debt, for that would be to discharge the estate of another person fmm the debt. But, in both (q) Barnes v. Racster, 1 Y. & C. Ch. 401 ; Flint v. Howard, [1893] 2 Ch. 54. (r) Hood V. Phillips, 3 Beav. 513. (s) Kirkham v. Smith, 1 Ves. Sen. 258; Jones v. Morgan, 1 Bro. Ch. C. 206. (t) Wigsell v. Wigsell, 2 Sim. & Stu. 364; Horton v. Smith, S K. & J. 624. («) Countess of Shrewsbury v. Earl of Shrewsbury , 1 Ves. Jun. 227; Faulkner v. Daniel, 3 Hare, 217 ; In re Harvey; Harvey v. Hobday, 1896, 1 Ch. 137. § 486 — 488.] ACCOUNT — contribution — charges. 201 cases, the presumption may be rebutted by circumstances which demonstrate a contrary intention. § 487. In respect to the discharge of incumbrances, it was for- merly a rule in equity, that the tenant for life and the reversioner, or remainderman, were bound to contribute towards the payment of incumbrances, in a positive proportion, fixed by the court; so that they paid a gross sum, in proportion to their interests in the estate. The usual proportion was, for the tenant for life to pay one-third, and the remainderman or reversioner to pay two-thirds of the charge. A similar rule was applied to cases of fines paid upon the renewal of leases. But the rule is now, in both cases, entirely exploded; and a far more reasonable rule is adopted. It is this : that the tenant shall contribute beyond the interest, in proportion to the benefit he derives from the liquidation of the debt, and the con- sequent cessation of annual payments of interest during his life (which of course will depend much upon his age and the computation of the value of his life) ; and it will be referred to a master, to ascertain and report what proportion of the capital sum due the tenant for life ought, upon this basis, to pay, and what ought to be borne by the remainderman or reversioner {x). If the estate is sold to discharge incumbrances (as the incumbrancer may insist that it shall be), in such a case, the surplus, beyond what is necessary to discharge the incumbrances, is to be applied as follows : the income thereof is to go to the tenant for life, during his life ; and then the whole capital is to be paid over to the remainderman or rever- sioner (j/). § 488. In regard to the interest due upon mortgages and other incumbrances, the question often arises by whom and in what manner it is to be paid. And here the general rule is, that a tenant for life as between himself and the remainderman is bound to keep down and pay the interest, although he is under no obligation to pay ofi the principal {z). But a tenant in tail is not bound to keep down the interest; and if he does, his personal representative has no right to be allowed the sums so paid, as a charge on the estate (a). The reason of this distinction is, that a tenant in tail, discharging the interest, is supposed to do it, as owner, for the benefit of the estate. He is not compellable to pay the interest; because he has the power, at any time, to make himself absolute owner against the remainderman and {x) White V. White, 5 Ves. 24, 9 Ves. 554; Allan v. Backhouse, 2 Ves. & B. 65. (J/) Waring v. Coventry, 2 M. & K. 406; Wrixon v. Vize, 2 Dm. & War. 192; Makings v. Makings, 1 De G. P. & J. 470. See Redington v. Redington, 1 Ball & B. 131. (z) Penrhyn v. Hughes, 5 Ves. 107 ; White v. White, 4 Ves. 33; Lloyd y. Johnes, 9 Ves. 37. Many cases may occur of far more complicated adjustments than are here stated; but in a treatise like the present, little more than the general rules can b?, indicated. (o) Amesbury v. Brown, 1 Ves. Sen. 480, 481. 202 EQUITY JURISPRUDENCE. [CH. VIII. reversioner. The latter have no equity to compel him, in their favour, to keep down the interest, inasmuch, as if they take anything, it is solely by his forbearance, and, of course, they must take it cum onere (b). § 489. These remarks may suffice to -show (for it is not our purpose to bring the minute distinctions upon these important subjects under a full review (c) ) the beneficial operations of courts of equity, in appor- tionments and contributions, upon this confessedly intricate subject; and, also, how utterly inadequate a court of common law would be to do complete justice, in a vast variety of cases, which may easily be suggested. Without some proceedings, in the nature of an account before a master, there would be no suitable elements, upon which any court of justice could dispose of the merits of such cases, so as to suppress future litigation, or to administer to the conflicting rights of different parties. § 490. Another class of cases, which still more fully illustrates the importance and value of this branch of equity jurisdiction, is that of General Average, a subject of daily occurrence in maritime and commercial operations. General average, in the sense of the maritime law, means a general contribution, that is to be made by all parties in interests, towards a loss or expense, which is voluntarily sustained or incurred for the benefit of all (d). The principle upon which this contribution is founded, is not the result of contract, but has its origin in the plain dictates of natural law (e). It has been more immediately derived to us from the positive declarations of the Roman law, which borrowed it from the more ancient text of the Rhodian jurisprudence. Thus, the Rhodian law, in cases of jettison, declared, that, " If goods are thrown overboard in order to lighten a ship, the loss, incurred for the sake of all, shall be made good by the contribu- tion of all. ' Lege Rhodia ' (says the Digest), ' cavetur, ut si levandse navis gratia jactus mercium factus est, omnium contributione sar- ciatur, quod pro omnibus datum est ' " (/). But the principle is by no means confined to cases of jettison; but it is applied to all other sacrifices of property, sums paid, and expenses voluntarily incurred in the course of maritime voyages for the common benefit of all persons (b) There is an exception to the general rule, that a tenant in tail is not bound to keep down the interest, which confirms, rather than impugns, the general rule. I£ the tenant in tail is an infant, his guardian or trustee will, in that case, be required to keep down the interest. The reason is, that the infant, of his own free will, cannot bar the remainder, and make himself absolute owner. Sergeson v. Sealey, 2 Atk. 416, and Mr. Saunders's note (1) ; Surges v. Mawbey, T. & R. 167. (c) See 1 Bridgeman's Digest, Average and Contribution, III.; 1 Chitty, Eq. Dig. Apportionment. id) Abbott, Shipping, Pt. 3, ch. 8, § 1, p. 342; Moore, 297 ; Vin. Abr. Contribution and Average, A. pi. 1, 2, 26. (e) Bering v. Earl of Winchelsea, 1 Cox 318, 323; s.c. 2 Bos. & Pul. 270, 274; Stirling v. Forrester, 3 Bligh 590, 596. (/) Dig. Lib. 14, tit. 2, f. 1. § 489 491,] ACCOUNT — contribution — AVERAGE. 203 concerned in the adventure. The principle has, indeed, been confined to a sacrifice of property, and the contribution confined to the pro pert.y saved thereby, although it certainly might have gone farther, and have required a corresponding apportionment of the loss or sacrifice of property upon all persons, whose lives have been preserved thereby, upon the same common sense of danger, and purchase of safety, alluded to by Juvenal, when, in a similar case, his friend desired his life to be saved by a sacrifice of his property : Fundite, quae mea sunt etium puVcherrima. § 491. General average being, then, as has been already stated, not confined to cases of jettison, but extending to other losses and expenditures for the common benefit, it may readily be perceived how difficult it would be for a court of law to apportion and adjust the amount, which is to be paid by each distinct interest, which is involved in the common calamity and expenditure. Take, for instance, the common case of a general ship or packet, trading between Liver- pool and New York, and having on board various shipments of goods, not unfrequently exceeding a hundred in number, consigned to different persons, as owners or consignees; and suppose a case of general average to arise during the voyage, and the loss or expenditure to be apportioned among all these various shippers according to their respective interests, and the amount which the whole cargo is to contribute to the reimbursement thereof. By the general rule of the maritime law, in all cases of general average, the ship, the freight for the voyage, and the cargo on board, are to contribute to such re- imbursement, according to their relative values. The first step in the process of general average, is to ascertain the amount of the loss for which contribution is to be made, as, for instance, in the case of jettison, the value of the property thrown overboard, or sacrificed for the common preservation. The value is generally indefinite and unascertained, and, from its very nature, rarely admits of an exact and fixed computation. The same remark applies to the case of ascertainment of the value of the contributory interest, the ship, the freight, and the cargo. These are generally differently estimated by different persons, and rarely admit of a positive and indisputable estimation in price or value. Now, as the owners of the ship, and the freight, and the cargo, may be, and generally are, in the supposed case, different persons, having a separate interest, and often an adverse interest to each other, it is obvious, that unless all the persons in interest can be made parties in one common • suit, so as to have the whole adjustment rriade at once, and made binding upon all of them, infinite embarrassments must arise, in ascertaining and apportioning the general average. In a proceeding at the common law, every party, having a sole and distinct interest, had formerly to be separately 204 EQUITY JURISPRUDENCE. [CH. VIII. sued (g); and as the verdict and judgment in one case was not only not conclusive, but not even admissible evidence in another suit, as it was res inter alios acta,; and as the amount to be recovered in each case depended upon the value of all the interests to be affected, which, of course, might be differently estimated by different juries, it is manifest that the grossest injilstice, or the most oppressive litigation, might taJse place in all cases of general average on board of general ships. A court of equity, having authority to bring all the parties before it, and to refer the whole matter to a master, to take an account, and to adjust the whole apportionment at once, afforded a safe, convenient and expeditious remedy. And it was accordingly a mode of remedy in all cases, where a controversy arose, and a court of equity existed in the place, capable of administering the remedy (K). But claims for general average were usually determined in common law courts. The court of. Admiralty had no jurisdiction to entertain .an active claim for general average (?'), but the Admiralty Division, as a branch of the High Court, has acquired full jurisdiction in the matter (fe), and one which is frequently exercised. § 492. Another class of cases, to illustrate the beneficial effects of ■equity jurisdiction over matters of account, is that of Contribution BETWEEN Sureties, who are bound for the same principal, and upon his default, one of them is compelled to pay the money, or to perform any other obligation, for which they all became bound. In cases of -this sort, the surety who has paid more than his proper proportion, is entitled to receive contribution from all the others, for what he has ■done in relieving them from a common burden {I). The common law courts also allowed a surety who had paid more than his aliquot ■share to recover from a co-surety the amount of the excess (m), but the aliquot share of liability was fixed at the csommon law by reference to the number of sureties originally bound, and if one of the sureties became insolvent, a surety singled out by the creditor ■as a defendant might find his liability exceed his contemplated proportion (n). The equitable rule, which is that now prevailing, ascertained the proportionate liability by reference to the solvent sureties (o). Eegard must, however, be had to the contract of the parties. Parties who have become bound by separate instrument and at separate dates, may nevertheless be co-sureties (p); on the (g) Abbott, Shipping, Pt. 3, ch. 8, § 17. {h) Ibid. ; Shepherd v. Wright, Show. Pari. Cas. 18 ; Hallett v. Bousefleld, 18 ■Vea. 190, 191. (i) See Cargo ex Galam, 2 Moo. P. C. N. S. 216. (k) The Oquendo, 38 L. T. 151. (l) Derivg v. Earl of Winchelsea, 1 Cox, 318. (■m) Kemp v. Einden, 12 M. & "W. 421. in) Browne v. Lee, 6 B. & G. 689. (o) Hitchman v. Stewart, 3 Drew. 271; Dallas v. Walls, 29 L. T. 599. i presenti, solven- dum in juturo (p) ; and whether he has a mortgage or not (g). Bills of (g) Com. Dig. Chancery, 3 G. 6. Oi) Rush V. Higgs, i Ves. Jun. 638, 643. (t) Ibid. (fc) Wright v. Bluck, 1 Vern. 106. See Walsh v. Stoddart. i Dr. and War. 159. (!) Dulwich College v. Johnson, 2 Vern. 49. (to) Monice v. Bank of England, Gas. temp. Talb. 217; Perry v. Phelips, 10 Vea. 38. (n) Woodgate v. Field, 2 Hare, 211. (o) See the case of The Creditors of Sir Charles Cox, 3 P. Will. 343. (p) Whitmore v. Oxborrow, 2 Y. & C, Ch. 13. (g) Greenwood v. Firth, 2 Hare 241, note; Aldridge v. Westbrook, 5 Beav. 138. § 545 — 548a.] administration. 233 this sort have been allowed upon the mere principle that, as executors and administrators have vast powers of preference at law, courts of equity ought, upon the principle that equality is equity, to interpose upon the application of any creditor by such a bill, to secure a distribution of the assets without preference to any one or more creditors (r). And as a decree in equity is held of equal dignity and importance with a judgment at law, a decree upon a bill of this sort, being for the benefit of all creditors, makes them all creditors by decree upon aji equality with creditors by judgment, so as to exclude, from the time of such decree, all preferences in favour of the latter (s). § 548. The usual decree, in the case of creditors' bills against the executor or administrator, is (as it is commonly phrased) quod computet, that is to say, it directs the master to take the accounts between the deceased and all his creditors; and to cause the creditors, upon due public notice, to come before him to prove their debts, at a certain place, and within a limited period; and it also directs the master to take an account of all the personal estaiie of the deceased in the hands of the executor or administrator, and the same to be applied in payment of the debts and other charges, in a due course of administration (t). In all cases of this sort, any person interested in estate as beneficiary or creditor is entitled to appear before the master, and may there, if he chooses, contest the claim of any other person claiming to be a creditor, in the same manner as if it were an adversary suit (u). § 548a.. Under the practice introduced by the Eules of the Supreme Court 1883, 0. LV., r. 4, it is usual to apply for administration of the real and personal estate of a deceased person by a summons designated an originating summons, and if the plaintiS resorts to a writ he may be visited with the increased costs of choosing the more expensive remedy (x). And in matters- within the jurisdiction of the County Court, should resort to that tribunal at the risk of being under the life penalty (y). There is no reason why the Bankruptcy Court should be resorted to in preference to the High Court (a). The persons entitled to sue out a summons for administration in the High Court are, by Order LV., rules 3 & 4, the executors and (r) Rush v. Higgs, i Ves. Jun. 638, 643; Gilpin v. Lady Southampton, 18 Ves. 469. (s) Morrice v. Bank of England, Cas. temp. Talb. 217 ; Perry v. Phelips, 10 Ves. 38, 39, 40; Brooks v. Reynolds, 1 Bro. C. C. 183; Paxton v. Douglas, 8 Ves. 520. (t) The Creditors of Sir Charles Cox, 3 P. Will. 343. (m) Shewen v. Vanderhorst, 1 Euss. & M. 347; Fuller v. Redman, 26 Beav. 614; Moodie v. Bannister, 4 Drew. 482, In re Wenham, Hunt v. Wenham [1892] 8 Ch. 59 ; Midgley v. Midgley [1898] 3 Ch. 282. (x) In re Johnson, Wragg v. Shand, 53 L. T. 136; In re Francke, Drake v. Francke, 57 L. J. Ch. 437. (y) See Browne v. Rye, L. E. 16 Eq. 343; Crozier v. Dowsett, 31 Ch. D. 67. (z) In re Baker, Nichols v. Baker, 44 Ch. D. 262. 234 EQUITY JURISPEUDENCE. [CH. IX. administrators of a deceased person, or a creditor, devisee, legat-ee, next of kin, or heir at law of a deceased person. § 549. As soon as the decree to account was made in such a suit, brought in behalf of all the creditors, and not before, the executor or administrator was, before the Judicature Act, 1873, entitled to an injxmction out of Chancery, to prevent any of the creditors from suing him at law, or proceeding in any suits already commenced, except under the direction and control of the court of equity, where the decree was passed (a). The object of the court, under such circum- stances, was to compel all the creditors to come in and prove their debts before the master; and to have the proper payments and discharges made under the authority of the court; so that the executor or administrator might not be harassed by multiplicity of suits, or a race of diligence be encouraged between different creditors, each striving for an undue mastery and preference. And this action of the court presupposed, that all the legal rights of every creditor, and the validity of his debt, might be, and, indeed, must be, determined in equity, upon the same principles as it would be at law (b). But, in order to prevent any abuse of such bills, by connivance between an executor or administrator and a creditor, it was a common practice to grant an injunction only, when the answer or afi&davit of the executor or administrator stated the amount of the assets, and upon the terms of his bringing the assets into court, or obeying such other order of the court, as the circumstances of the case might require (c). The same remedial justice was applied, where the application, instead of being made by creditors, was made by legatees or trustees (d). Now by the Judicature Act, 1873, s. 24, sub-s. 5, the same result would be obtained by an application to the court in which the creditor is suing, to stay proceedings on the ground that an administration action is pending in the Chancery Division; or by a counter-claim for ad- ministration followed by an application for a transfer of the action to the Chancery Division. § 550. The considerations already mentioned apply to cases where the assets are purely of a legal nature ; and no peculiar circumstances require the interposition of courts of equity, except those appertaining to the necessity of taking an account, and having a discovery, and decreeing a final settlement of the estate. But in a great variety of cases, the jurisdiction of courts of equity became indispensable, from the fact, that no other courts possessed any adequate jurisdiction to (o) Morrice v. Bank of England, Cas. temp. Talb. 217; Brooks v. Reynolds, 1 Bro. C. C. 183, and Mr. Belt's note; Clarke v. Earl of Ormonde, Jac. 122; In re Roberts, Fowler v. Roberts, 2 Giff. 226; Marriage v. Skiggs, 4 De G. & J 4. (b) Whitaker v. Wright, 2 Hare 310. (c) Gilpin V. Lady Southampton, 18 Ves. 469; Clarke v. Earl of Ormonde, Jac. 122; Lee v. Park, 1 Keen 714; Mitford, Plead, by Jeremy 311. (d) Brooks v. Reynolds, 1 Bro. C. C. 183; Perry v. Phelips, 10 Ves. 38; Jackson V. Leap, 1 J. & W. 231 and note. § 549 552.] ADMINISTRATION. 235 reach the entire merits, or dispose of the entire merits. This was necessarily the case where there were equitable assets as well as legal assets, and, also, where the assets were required to be marshalled, in order to a full and perfect administration of the estate, and to prevent any creditor, legatee, or distributee from being deprived of his own proper benefit, by reason of any prior claims which might obstruct it. § 551. And, first, in relation to equitable assets. That portion only of the assets of the deceased party are deemed legal assets which by law are directly hable, in the hands of his executor or administrator, to the payment of debts and legacies. It is not within the design of these Commentaries to enter into a minute examination of what are deemed legal assets. But, generally speaking, they may be defined as assets which come into the hands and power of an executor or administrator, or such as he is entrusted with by law, virtute officii, to dispose of in the course of administration. In other words, whatever an executor or administrator takes qua executor or administrator, or in respect to his office, or which he can recover in any court of equity as well as of law, is to be considered as legal assets (e). § 552. Equitable assets are, on the other hand, aU assets which are chargeable with the payment of debts or legacies in equity ; and which do not fall under the description of legal assets. They are called equitable assets, because the creditor of the deceased could formerly only obtain payment out of them, by the aid and instrumen- tality of a court of equity (/). They are also called equitable for another reason; and that is, that the rules of distribution by which they are governed are different from those of the distribution of legal assets {g). In general, it may be said, that equitable assets are of two kinds; the first is, where assets are created such by the intent of the party; the second is, where they result from the nature of the estate made chargeable. Thus, for instance, if a testator devises land to trustees, to sell for the payment of debts, the assets resulting from the execution of the trust, are equitable assets upon the plain intent of the testator, notwithstanding the trustees are also made his executors, for, by directing the sale 'to be for the payment of debts generally, he excludes all preferences, and the property would not before the Administration of Estates Act, 1833 (3 & 4 Will. 4, c. 104), otherwise have been liable to the payment of simple contract debts {h). The same principle applies, if the testator merely charges his lands (e) Cook V. Gregson, 3 Drew. 547; Christy v. Courtenay, 26 Beav. 140; AU.-Gen, V. Brunning, 8 H. L. C. 258. (/) In re Power, Acworth v. Storie [1901], 2 Ch. 665. (g) Talbot v. Frere, 8 Ch. D. 568; Walters v. Walters, 18 Ch. D. 182. (/i) Newton v. Bennet, 1 Bro. C. C. 135; Silk v. Prime, 1 Bro. C. C. 138, noter Clay V. Willis, 1 B. & C. 364; Barker v May, 9 B. & C. 489; Bain v. Sadler, L. E. 12 Eq. 570. 236 EQUITY JURISPRUDENCE. [CH. IX. with the payment of his debts (0- On the other hand, if the estate be of an equitable nature, and be chargeable with debts, the fund is to be deemed equitable assets, unless by some statute it is expressly made legal assets; for it cannot be reached except through the instrumentality of a court of equity. And it may be laid down as a general principle, that everything is considered as equitable Eissets, which the debtor has made subject to his debts generally, and which, without his act, would not have been subject to the payment of his debts generally (fe). § 553. In the course of the administration of assets, courts of ■equity followed the same rules in regard to legal assets, which were formerly adopted by courts of law; and gave the same priority to the different classes of creditors, which was enjoyed at law; thus main- taining a practical exposition of the maxim, Mquitas sequitur legem (I). In the like manner, courts of equity recognized and enforced all ante- cedent liens, claims, and charges in rem, existing upon the property according to their priorities; whether these charges were of a legal or of an equitable nature, and whether the assets were legal or equit- able (m). One of these priorities was that enjoyed by specialty creditors over creditors by simple contract which was abolished as from January 1, 1870, by the Administration of Estates Act, 1869 (32 & 33 Vict. c. 46), sometimes still called Hinde Palmer's Act. This ■statute expressly preserves the full force of any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt. § 554. But in regard to equitable assets (subject to the exception already stated), courts of equity, in the actual administration of them, adopted very different rules from those formerly adopted in courts of law in the administration of legal assets. Thus, in equity, it was and is a general rule that equitable assets shall be distributed equally, and ■pari passu, among all the creditors, without any reference to the priority or dignity of the debts; for courts of equity regard all debts in conscience as equal jure naturali, and equally entitled to be paid; and here they follow their own favourite maxim that equality is equity ; JEquitas est quasi sequalitas. And if the fund falls short, all the creditors are required to abate in proportion (n). § 554a. The rules which the Court of Chancery applied in the administration of .estates were part of the lex fori, and priorities were determined according to the English law, and not according to that (i) Silk v. Prime, 1 Bro. C. C. 138 n. ; Price v. North, 1 Ph. 85. (k) Silk V. Prime, 1 Bro. C. C. 138 n. (l) Att.-Gen. v. Brunning, 8 H. L. C. 258; Morrice v. Bank of England, Cas. •temp. Talb. 220, 221. (m) Freemoult v. Dedire, 1 P. Wms. 429; Pope v. Gwinn, 8 Ves. 28, note. (n) Creditors of Sir Charles Cox, 3 P. Wins. 343; In re Poole, Thompson v. Ben- net, 6 Ch. D. 739. § 553 555.] ADMINISTKATION. 237 of the law of the country where an obligation was incurred (o), but the court gave full effect to charges upon property created by a contract entered into outside its jurisdiction (p). A secured creditor formerly possessed the right of realizing his security, and proving for the whole debt in competition with the unsecured creditors, not receiving in the result more than 20s. in the £1. In the case of an insolvent estate this worked what was deemed a serious injustice to the unsecured creditors, and has been altered by the introduction of the bankruptcy rule by the Judicature Act, 1878 (86 & 37 Vict. c. 66), s. 10. The secured creditor where the estate is insolvent must now adopt one of four courses, (1) rely entirely on his security ; or (2) reahze his security and prove for the balance ; or (8) value his security and prove for the balance ; or (4) surrender his security and prove for the whole debt. If he adopts courses (1) or (3) his security may be redeemed at the face value or the assessed value as the case may be, and in the latter event subject to the right of the creditor to amend his valuation in the event of a clear mistake or a change of circumstances, unless he has accept'ed payment (q). § 555. It frequently happens, also, that lands and other property, not strictly legal assets, are charged, not only with the payment of debts, but also with the payment of legacies. In that case, all the legatees take pari passu; and if the equitable assets (after payment of the debts) are not sufficient to pay all the legacies, the legatees are all required to abate in proportion, unless some priority is specially given by the testator to particular legatees; for, prima facie, the testator must be presumed to have considered that he had assets sufficient to answer all the legacies and to intend that all his legacies- shall be equally paid (r). But suppose the case to be, that the equit- able assets are sufficient to pay all the debts ; but, after such payment' not sufficient to pay any of the legacies; and the property is charged with the payment of both debts and legacies. In such a conflict of rights, the question must arise, whether the creditors and legatees are to share in proportion, pari passu; or the creditors are to enjoy a priority of satisfaction out of the equitable assets. This was formerly a matter of no inconsiderable doubt ; and it was contended with much- apparent strength of reasoning that, as both creditors and legatees, in such a case, take out of the fund by the bounty of the testator, and not of strict right, they. ought to share in proportion, pari passu. After some struggle in the courts of equity upon this point, it was at (o) Pardo v. Bingham, L. B. 6 Eq. 485. (p) In re de Nicols, de Nicols v. Curlier, [1900] 2 Ch. 410. See Lashley v. Hog, 2' Coop. t. Cott, 449. (q) See Exp. Drake, In re Ware, 5 Ch. D. 866; Gouldery v. Bartrum, 19 Ch. D. 394; Exp. Norris, In re Sadler, 17 Q. B. D. 728; Exp. Nat. Prov. Bk. of England,. In re Newton [1896] 2 Q. B. 403. (r) Beeston v. Booth, 4 Mad. 161 ; Thwaites v. Foreman, 1 Coll. 409; affd. 10 Jur. 483 ; In re Harris, Harris v. Harris, [1912] 2 Ch. 241. 238 EQUITY JURISPRUDENCE. [CH. IX. length settled that, although as between themselves, in regard to equitable assets, the creditors- are all equal, and are to share in propor- tion, pari passu; yet, as between them and legatees, the creditors are entitled to a priority and preference ; and that legatees can take nothing until the debts are all paid (s). § 556. The ground of this decision was, that it is the duty of every man to be just before he is generous; and no one can well doubt the moral obligation of any man to provide for the payment of all his debts. The presumption, therefore, in the absence of all other words, showing a different intent (which intent would, however, no longer prevail), was, and is, that a testator means to provide first, for the discharge of his moral duties, and next, for the objects of his bounty, and not to confound the one with the other. For, otherwise, the testator would, in truth, and in foro conscientise , be disposing of another's property, and not making gifts ultra ses alienum. The good sense of this latter reasoning can scarcely escape observation. It proceeds upon the just and benignant interpretation of the intention of the party to fulfil his moral obligations in the just order which natural law would assign to them. § 557. In cases where the assets were partly legal, and partly equitable, courts of equity would not interfere to take away the legal preference of any creditors to the legal assets. But, if any creditor had been partly paid out of the legal assets by insisting on his preference, and he sought satisfaction of the residue of his debt out of the equitable assets, he would be postponed, till all the other creditors, not possessing such a preference, had received out of such equitable assets an equal proportion of their respective debts (t). This doctrine is founded upon and flows from that which we have been already considering, that in natural justice and conscience aU debts are equal; that the debtor himself is equally bound to satisfy them all; and that equality is equity. When, therefore, a court of equity was called upon to assist a creditor, it had a right to insist, before relief was granted, that he who seeks equity shall do equity ; that he should not make use of the law in his own favour to exclude equity ; and at the same time insist that equity should aid the defects of the law, to the injury of equally meritorious claimants. The usual decree in cases of this sort was, that the creditor who had exhausted (or should exhaust) any part of the testator's estate in satisfaction of his debts, should not come upon or receive any further satisfaction out of the residue of the testator's estate (or the equitable assets) until the other creditors should thereout be made up equal with him (u). This is sometimes called marshalling the assets; but that appellation more (s) Walker v. Meager, 2 P. Wms. 560; Kidney v. Coussmaker, 12 Ves. 136. (t) Chapman v. Esqar, 1 Sm. & G. 575 ; Bain v. Sadler, L. E. 12 Eq. 570. («) See Aldrich v. Cooper, 8 Ves. 382. § 556 — 559.] ADMINISTRATION. 239 appropriately belongs (as we shall immediately see) to another mode of equitable interference. The present is rather an exercise of equit- able jurisdiction in refusing relief, unless upon the terms of doing equity. § 558. In the next place, as to marshalling assets (strictly so called) in the course of the administration (x). In the sense of the lexi- cographers, to marshal, is to arrange or rank in order ; and in this sense, the marshalling of assets would be, to arrange or rank assets in the due order of administration. This primary sense of the language has been transferred into the vocabulary of courts of equity ; and has there received a somewhat peculiar and technical sense, although still germane to its original signification. In the sense of the courts of equity, the marshalling of assets is such an arrangement of the difEerent funds under administration as shall enable all the parties, having equities thereon, to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction, out of a portion of these fimds. THius, where there exist two or more funds, and there are several claimants against them, and at law one of the parties may resort to either fund for satisfaction, but the others can come upon one only ; there, courts of equity exercise the authority to marshal (as it is called) the funds, and by this means enable the parties whose remedy at law is- confined to one fund only, to receive due satisfaction (y). The general principle upon which t courts of equity interfere in these cases is, that, without such inter- ference, he who had a title to the double fund would possess £Ui uni'easonable power of defeating the claimants upon either fund, by taking his satisfaction out of the other, to the exclusion of them. So that, in fact, it would be entirely in his election, whether they should receive any satisfaction or not. Now, courts of equity treat such an exercise of power as wholly unjust and unconscientious; and therefore will interfere, not, indeed, to modify or absolutely to destroy the power, but to prevent it from being made an instrument of caprice, injustice, or imposition. Equity, it affording redress in such cases, does little more than apply the maxim. Nemo ex alterius detrimento fieri debet locupletior (z). § 559. And this principle is by no means confined to the adminis- tration of assets; but it is applied to a vast variety of other cases (as we shall hereafter see); as, for instance, to cases of two mortgages where one covers two estates, and the other but one ; to cases of extents by the Crown; and, indeed, to cases of double securities generally (a). It may be laid down as the general rule of the courts of equity in cases of this sort, that, if a creditor has two funds, and in the exercise of (x) Post, § § 633 to 643. (y) Aldrich v. Cooper, 8 Ves. 382; In re Cornwall, 3 Dru. & War. 173. (z) See Mills v. Eden, 10 Mod. 499; ante, §§ 327, 499; post, §§ 633 to 642. (a) Aldrich v. Cooper, 8 Ves. 382; In re Cornwall, 3 Dra. & War. 173. 240 EQUITY JURISPRUDENCE. [OH. IX. his undoubted right pursues his remedy against one or other of his securities, a creditor with a security over one of the funds shall be- compensated to the extent to which he has been disappointed by the election of the other creditor (&). The rule has been extended to the case of other persons standing in a similar predicament. Where a person mortgages two properties to secure one and the same sum of money, and afterwards devises them to different beneficiaries, the charges are apportioned upon the properties according to their respec- tive values, and the beneficiary who pays more than the apportioned part may recover the excess from the other beneficiary, unless it clearly appear that the parties have agreed that the properties shall stand security in specific order (c). So where an agent mortgaged property of his principal for his personal debt in excess of his authority, and the mortgagee enforced his right to repayment against the principal's property, the principal was held entitled to enforce against the property of the agent liberated by this act of the mortgagee so much of the sum advanced by the mortgagee as exceeded that which the agent was authorized to raise (d). The rule is applicable whether the properties mortgaged be land (e), or personalty (/), or partly one and partly the other (g). § 560. But, although the rule is so general, yet it is not to be understood without some qualifications. It is never applied except where it can be done without injustice to the creditor, or other party in interest, having a title to the double fund, and also without injustice to the common debtor (h). Nor is it applied in favour of persons who are not common creditors of the same common debtor, except upon some special equity. ITius, a creditor of A. has no right, unless some peculiar equity intervenes, to insist that a creditor of A. and B. shall proceed against B.'s estate alone for the satisfaction of his debt, so that he may thereby receive a greater dividend from A.'s estate (t). So, where a creditor is a creditor upon two estates for the same debt, he "will be entitled to receive dividends to the full amount from both estates, until he has been fully satisfied for his debt; for his title in such a case is not to be made to yield in favour of either estate, or the creditors of either to his own prejudice (fc). It has, indeed, been said by Lord Hardwicke, that courts of equity have no right to marshal (b) Clifton V. Burt, 1 P. Wms. 678 and Mr. Cox's note. (c) Aldrich V. Cooper, 8 Ves. 382; Johnson v. Child, i Hare, 87; In re Athill, Athill V. Athill, 16 Ch. D. 211. (d) Ex parte Skyrme, In re Burge, Woodall if Co. [1912] 1 K. B. 393. (e) Aldrich v. Cooper, 8 Ves. 382; In re Athill, Athill v. Athill, 16 Ch. D. 211. (J) Ex parte Skyrme, In re Burge, Woodall & Co. [1912] 1 K. B. 393. ig) In re Cornwall, 3 Dru. & War. 173; Johnson v. Child, i Hare, 87. (h) Barnes v. Rackster, 1 Y. & C. Ch. 401 ; Earl of Clarendon v Barham, 1 Y. & C. Ch. 688; Flint v. Howard [1893] 2 Ch. 54. (j) Ex parte Kendall, 17 Ves. 514; post, §§ 642 to 645. (ft) Bonser v. Cox, 6 Beav. 84. § 560 — 563.] ADMINISTRATION. 241 the assets of a person who is alive, but only the real and personal assets of a person deceased ; for the assets are not subject to the juris- diction of equity until his death (Z). But this language is to be understood with reference to the case in which it was spoken; for there is no doubt that there may be a marshalling of the real and personal assets of living persons under particular circumstances, where peculiar equities attach upon the one or the other; although such cases are very rare (m). § 561. The rule of courts of equity, in marshalling assets in the course of administration, is, that every claimant upon the assets of a deceased person shall be satisfied, as far as such assets can, by any arrangement consistent with the nature of their respective claims, be appHed in satisfaction thereof {n). The rule must necessarily, in its application to the actual circumstances of different cases, admit, nay, must require, very different modifications of relief. It may be illus- trated by the suggestion of a few cases, which present its application in a clear view, and show the limitations belonging to it. § 562. In tlie first place, before the Administration of Estates Act, 1833 (3 & 4 Will. 4, c. 104), if a specialty creditor received satisfaction out of the personal assets of the deceased, a simple contract creditor (who had before the statute no claim except upon the personal assets) in equity stood in the place of the specialty creditor against the real assets, so far as the latter had exhausted the personal assets in pay- ment of his debts, and no farther. But the court would not, in cases of this sort, extend the relief to creditors farther than the nature of the contract would justify it. Therefore it must have been a specialty creditor of the person whose assets were in question ; such a one as might have had a remedy against both the real and personal estate of the deceased debtor, or against either of them. For it was not every specialty creditor in whose place the simple contract creditors could come to affect the real assets. If the specialty creditor himself could not affect the real estate, as, if the heirs were not bound by the specialty; or if there were no personal covenant binding the party to pay ; or if the creditors were not creditors of the same person, and had not any demand against both funds, as being the property of the same person; in these and the like cases, there was no ground for the inter- position of courts of equity (o). § 568. On the other hand, if a specialty creditor, having a right to resort to two funds, had not as yet received satisfaction out of either, (/) Lacam v. MerUns, 1 Ve«. Sen. 312. (m) See Ex parte Kendall, 17 Ves. 514; Barnes v. Rackster, 1 T. & C. Ch. 401; Earl of Clarendon v. Barham, 1 T. & C. Ch. 688; Flint v. Howard [1893] 2 Ch. 54; Ex parte Skyrme, In re Barge Woodall & Co. [1912] 1 K. B. 393. (n) See Clifton v. Burt, 1 P. Will. 679, Mr. Cox's valuable note (1), from which I have freely drawn. (o) Clifton V. Burt, 1 P. Will. 679, Cox's note (1) ; Aldrich v. Cooper, 8 Ves. 382 ; Ex parte Kendall, 17 Ves. 514. ' E.J. 16 242 EQUITY JUHISPRUDENCE. [OH. IX. a court of equity would not interfere, either to throw him for satis- faction upon the fund which could be effected by him only, to the intent that the other fund should be clear for him who can have access to the latter only; or put the creditor to his election between the one fund and the other. There are, indeed, many cases in which it has been, said that a doubly secured creditor is " thrown on " a particular security in exoneration or relief of another, but it would be contrary to all equitable principles to interfere with a party claiming for value in the ex,ercise of his proprietary rights. According to the true prin- ciple, if the creditor resorted to the fund, upon which alone the other party had any security, it would decree satisfaction pro tanto to the latter out of the other fund (p). The usual decree in such cases was, that " in case any of the specialty creditors should exhaust any part of the personal estate, then the simple contract creditors were to stand in their place, and receive a satisfa<^tion pro tanto out of" the real assets (g). § 564. The same principle applied to the case of a mortgagee, who exhausted the personal estate in the payment of his debt. In such a case the simple contract creditors were allowed to stand in the place of the mortgagee, in regard to the real estate bound by the mort- gage (r). And, where the personal assets had been so applied in discharge of a mortgage, the simple contract creditors might, in furtherance of the same principle, have compelled the heir to refund so much of the personal assets as had been applied to pay ofi the mortgage (s). § 564a. It was formerly doubted whether the same principle applied to the case of a vendor of an estate, whose unpaid purchase-money was, after the death of the purchaser, paid out of his personal estate. But it was afterwards settled that, in such a case, the simple contract creditors of the purchaser should stand in the place of the vendor, with respect to his lien on the estate so sold, against the devisee, as well as against the heir of the same estate (i). But by force of the Real Estate Charges Act, 1867 (30 & 31 Vict. c. 69), this illustration can no longer arise in practice, as the heir or devisee would have to refund the balance so paid in any event. § 565. In general, legatees were entitled to the same equities where the personal estate was exhausted by specialty creditors ; for they would otherwise have been without any means of receiving the bounty of the testator (m). So they were permitted, in like manner, to stand in the place of the specialty creditors, against the real assets (p) Hatherley, Jj.C— Dolphin v. Aylward, L. E. 4 H. L. & J. 501. (g) Davies v. Tofp, 1 Bro. C. C. 526; Aldrich v. Cooper, 8 Ves. 382; Sproule v Prior, 8 Sim. 189. (r) Aldrich v. Cooper, 8 Ves. 382. (s) Wilson V. Fielding, 2 Vern. 763. (t) Selby V. Selby, 4 Euss. 336. (u) Tipping v. Tipping, 1 P. Wms. 730; Burton v. Pierpoint, 2 P. Wms. 81. § 564 — 566a.] administration. 243 descended to the heir (x). So they were permitted, in like manner, to stand in the place of a mortgagee, who had exhausted the personal estate in paying his mortgage. And their equity would prevail, not only in cases where the mortgaged prernises had descended to the heir-at-law ; but also where they had been devised to a devisee, who is to take subject to the mortgage (y). But their equity will not prevail against a devisee of the real estate not mortgaged, whether he be a specific or a residuary devisee, residuary devises being now specific by force of the Inheritance Act, 1833 (3 & 4 Will. 4, c. 106); for he also took by the bounty of the testator; and between persons, equally taking by the bounty of the testator, equity would not interfere, unless the testator had clearly shown some ground of preference or priority of the one over the other (z). So that there was a distinction between the case where the estate was devised, and there were specialty creditors, and the case where it was devised, and there was a mortgage on it. In the latter case, the legatees stood in the place of the mort- gagee, if he exhausted the personal assets ; in the former case, they did not stand in the place of the specialty creditors. The reason assigned is, that a specialty debt is no lien on land in the hands of the obligor, or his heir or devisee. But a mortgage is a lien, and an estate in the land. By a devise of land mortgaged, nothing passes but the equity of redemption, if it is a mortgage in fee; if it is for years, the reversion and equity of redemption pass. § 566. In like manner, where lands are subjected to the payment of all debts, legatees are permitted to stand, in regard to such lands, in the place of simple contract creditors, who have come upon the personal estate, and exhausted it so far as to prevent a satisfaction of their legacies (a). So, where legacies given by a will are charged on real estate, but legacies by codicil are not; the former legatees will be compelled to resort to real assets, if there is a deficiency of the assets to satisfy both (b). § 566a. Upon analogous grounds, if the subject-matter of a specific legacy is pledged, mortgaged or otherwise incumbered by the testator, the specific legatee is entitled to have the property redeemed by the executor, out of the general assets of the testator, unless the in- cumbrance exceed the value of the property, in which event his right is limited to that value (c). (x) Clifton V. Burt, 1 P. Wms. 678, and Cox's note; Fenhoulet v. Passavant, 1 Dick. 253. (y) Lutkins v. Leigh, Caa. temp. Talb. 53; Forrester v. Leigh, Ambler, 171; Lomas v. Wright, 2 M. & K. 769 ; Porcher v. Wilson, 14 W. E. 1011 ; Lord Lilford v. Powys-Keck, 35 Beav. 77. (z) Clifton v. Burt, 1 P. Wms. 678; and Cox's note; Biederman v. Seymour, 3 Beav. 368; Mirehou^e v. Scaife, 2 M. & Cr. 695. (a) Paterson v. Scott, 1 De G., M. & G. 531; In re Salt, Brothwood v. Keeling [1895] 2 Ch. 203. (b) Norman v. Morrill, i Ves. 769. (c) Knight v. Davis, 3 Myl. & K. 358; Bothamley v. Sherson, L. R. 20 Eq. 304. 244 EQUITY JURISPRUDENCE. [CH. IX. § 567. The dcwtrine adopted in all these cases, of allowing one creditor to stand in the place of another having two funds to resort to, and electing to take satisfaction out of one, to which alone another creditor can resort, was probably transferred from the civil law into equity jurisprudence. It is certainly founded in principles of natural justice; and it early worked its way, undei* the title of substitution, into the civil law, where it was applied in a very large and liberal manner. But upon this subject we shall have occasion to speak hereafter in another place (d). § 568. There were other ca^es in which the marshalling of assets was in like manner enforced in courts of equity; as, for instance, in favour of the widow of a person deceased. After the death of the husband, his creditors could not take his widow's necessary apparel in satisfaction of their debts (e). With this exception, a widow's paraphernalia were generally subject to the payment of the debts of her husband. But, in favour of the widow, and to preserve her paraphernalia, courts of equity will interfere, by turning creditors entitled to proceed against real assets or funds, over to these assets and funds for satisfaction. And if the paraphernalia have been actually taken by creditors in satisfaction of their debts, the widow will be allowed to stand in their place, and the assets will be marshalled so as to give her a compensation pro tanto (/). § 569. So long as the Mortmain Act (9 Geo. 2, c. 36) was in force, legacies or bequests by will to charitable uses, payable out of real estate, or charged on real estate, or to arise from the sale of real estate, were utterly void. And courts of equity, following out the intent and object of the statute, refused to interfere in favour of legatees of personal property for charity, by marshalling assets for this purpose in any case whatever; as, by throwing the debts or legacies on real assets for payment; or, by allowing the charity legatees to stand in the place of any creditor or legatee who had exhausted the personal estate, against the real assets, but would give effect to an express direction of the testator that charitable legacies were to be paid out of pure personalty in priority to all other charges (gr). Since the Mortmain and Charitable Uses Act, 1891, marshalling as applied to charities will be of little importance. § 570. Hitherto we have been speaking of marshalling assets in favour of creditors, legatees, or widows. But it is not to be under- stood that these are the only persons entitled to the benefit of this wholesome doctrine of courts of equity. Heirs-at-law and devisees (d) Post, § 635, 636, 637. (e) Black. Comm. 436; Noy's Maxims, ch. 49; Townshend v. Windham, 2 Ves. 7. (/) Earn on Assets, ch. 18, pp. 363, 354, and the cases there cited; Aldrich v. Cooper, 8 Vea. 397. See Masson TempUer cC Co. v. De Fries [1909] 2 K. B. 831. (g) Philanthropic Sac. v. Kemp, 4 Beav. 681; Robinson v. Geldard, 3 Mac. & G. 735; Beaumont v. Olivera, L. E. 4 Ch. 309; Miles v. Harrison, L. E. 9 Ch. 316. § 567 — 571]. ADMINISTRATION. 245 are, in a great variety of cases, entitled to the protection resulting from the just application of this equitable remedy. Thus, for instance, if an heir or devisee of real estate is sued by a bond-creditor, he may, in many cases, be entitled to stand in the place of such specialty creditor against the personal estate of the deceased testator or intestate (h). § 571. In order more fully to comprehend the nature and limita- tions of this doctrine, it is necessary to state that, in the view of courts of equity, the personal estate of the deceased constitutes the primary and natural fund for the payment of his debts; and they will direct it to be applied in the first instance to that purpose, unless from the will of the deceased, or from some other controlling equities, it is clear that it ought not to be so applied (?'). But, in the order of satisfaction out of the personal estate of the deceased, if it is not sufficient for all purposes, creditors are preferred to legatees; specific legatees are preferred to the heir and devisee of the real estate, charged with specialties or with the payment of debts (fc) ; the devisee of mortgaged premises is preferred to the heir-at-law of descended estates (I) ; and a fortiori the devisee of premises not mortgaged is pre- ferred to the heir-at-law (m). The natural inference is that the testator intended effect to be given to all his specific gifts, and specific legatees and specific devisees contribute rateably in proportion to the respective values of the subject-matter to make good to creditors any deficiency in the assets (n). Where the equities of the legatees and devisees are equal, which (as we have seen) is sometimes the case, courts of equity remain neutral, and silently suffer the law to prevail (o). But where the personal assets are sufficient to pay all the debts and legacies and other charges, there the heir or devisee, who has been compelled to pay a debt or an incumbrance of his ancestor or testator, binding upon him, is entitled (unless there be some other equity which repels the claim) to have the debt paid out of thci personal assets in preference to the residuary legatees o:r distributees. Thus, for instance, if a specialty debt or mortgage of an ancestor or testator is paid by the heir or devisee, he is entitled to have it paid out of the personal assets in the hands of the executor, (h) Mogg v. Hodges, 2 Ves. Sen. 62; Galton v. Hancock, 2 Atk. 424, 425. (j) See Co. Litt. 208 b, Butler's note (106). (k) Cope V. Cope, 2 Salk. 449. (I) Toller on Executors, B. 3, ch. 8, p. 418 ; Howell v. Price, 1 P. Will. 294, Mr. Cox's note; Cope v. Cope, 2 Salk. 449, Mr. Evans's note. (m) Chaplin v. Chaplin, 3 P. Will. 364; Davies v. Topp, 1 Bro. C. C. 824; Manning v. Spooner, 3 "Ves. 114. (n) Tombs v. Boch, 2 Coll. 490; Hensman v. Fryer, L. E. 3 Ch. 420; Lancefield V. Iggulden, L. E. 10 Ch. 136. (o) The whole subject was largely discussed in Davies v. Tropp, 1 Bro. C. C. 524, and in Mr. Cox's note to Howell v. Price, 1 P. Will. 294; and Evelyn v. Evelyn, 2 P. Will. 664; Bootle v. Blundell, 1 Meriv. 215 to 238; Earn on Assets, ch. 28, §§ 1 to 4, ch. 29, §§ 1 to4. 246 EQUITY JURISPRUDENCE. [CH. IX. unless the testator, by express words or other manifest intention, has clearly exempted the personal assets from the payment (p). In considering these cases the student must remember the change introduced by the Eeal Estates Charges Act, 1854, 1867, and 1877 (17 & 18 Vict. c. 113, 30 & 81 Vict. c. 69, and 40 & 41 Vict. c. 34), which cast upon the successor to real estate the burden of charges existing thereon, unless the ancestor or testator has made express provision to the contrary. But this would not affect the right of the mortgagee to pursue his remedies which are left unaffected by the statutes, and accordingly the principles of marshalling acquire a new importance for the purpose of adjusting the burden according to its true incidence. § 572. What constitutes proof of am intended exemption by the testator is not, in many cases, ascertainable upon abstract principles, but depends upon circumstances (g). It is certain, however, that a devise of all the testator's real estate, subject to the payment of his debts, or a devise of a particular estate, subject to the payment of debts, is not alone sufficient to exempt the personal estate (r). But, on the other hand, if the real estate is directed to be sold for the payment of debts, and the personal estate is expressly bequeathed to legatees, there the personal estate will, by necessary implication, be exempted (s). § 573. The doctrine of the court, in aU cases of this sort, is supposed to be founded upon the saxne principle; that is, to follow out the intention of the t-estator. The personal estate is deemed the natural and primary fund for the payment of all debts; and the testator is presumed to act upon this legal doctrine until he shows some other distinct and unequivocal intention. The general rule, therefore, of courts of equity, although sometimes delivered in one form and sometimes in another, is (as Lord Hardwicke has expressed it) that the personal estate shall be first applied to the payment of debts, unless there be express words, or a plain intention of the testator to exempt his personal estate, or to give his personal estate as a specific legacy ; for he may do this, as well as give the bulk of his real estate by way of specific legacy (i). § 574. But, although the personal estate is thus decreed the general and primary fund for the payment of debts, and still remains so, notwithstanding the real estate is also collaterally chargeable ; yet the rule was otherwise, or rather was differently applied, where the {p\ Howell V. Price, 1 P. Will. 291, 294, and Cox's note (1); Duke of Ancasterv. Mayer', 1 Bro. C. C. 454; Tower v. Lord Rous, 18 Ves. 132. (g) Bootle v. Blundell, 1 Mer. 193. (r) Ouseley v. Anstruther, 10 Beav. 453; Whieldon v. Spode, 15 Beav. 537; Wells V. Row, 48 L. J. Ch. 476. (s) Plenty v. West, 16 Beav. 173; Gilbertson v. Gilbertson, 34 Beav. 854. (t) Walker v. Jackson, 2 Atk. 625; ante, § 556; Powell v. Riley, 12 Eq. 175. § 572 — 574a..] administration. 247 charge of the debt was principally and primarily upon the real estate, and the personal security of covenant was only collateral; for the primary fund ought in conscience, in all cases, to exonerate the auxiliary fund {u). Having regard to the statutes next to be noticed, it seems unnecessary to preserve the discussion of this topic by the learned author. § 574a. The law as to the primary liability of the general personal estate to pay mortgages and other charges on lands devised or descended has been entirely altered by the Eeal Estate Charges Act, 1854 (17 & 18 Vict. c. 113), and amending Acts. This Act enacted that, ' ' when any person shall, after the passing of this Act, die seised of or entitled to any interest in any land -o socio actio magis ad personales invicem prsesta- tiones pertinet, quam ad communem rerum divisionem (o). Etsi non omnes, qui rem communem habent, sed certi ex his dividere desiderant, hoc judicium inter eos accipi potest " (p). § 649. But, independently of considerations of this sort, which might have brought many cases of partition into the Court of Chancery, in very early times, from the manifest defect of any remedy at law, there must, have been many oases, where bills for partition were properly entertainable upon the ordinary ground of a discovery wanted, or of other equities, intervening between the parties (q). Lord Lough- borpugh, upon one occasion, said that there is no original jurisdiction in chancery in partition, which is a proceeding at the common law (r). This may be true sub modo, where the party is completely remediable at law; but not otherwise. On another occasion his lordship said : " A party, choosing to have a partition, has the law open to him; there is no equity for it. But the jurisdiction of this court obtained upon a principle of convenience. It is not for the court to say, one party shall not hold his estate, as he pleases ; but another person has also the same right to enjoy his part, as he pleases; and, therefore, to have the estate divided. The law has provided, that one shall not defeat the right of the other to the divided estate. Then the only question is, whether (m) Dib. Lib. 12, tit. 6, f. 26, § 4 ; 2 Black. Comm. 185, note (c). (n) Cod. Lib. 3, tit. 37, f. 5 ult. (o) Dig. Lib. 10, tit. 3, f. 1. (p) Dig. Lib. 10, tit. 3, f. 8; Fulbeck's Parallel, B. 2, pp. 57, 68; Brsk. Inst. B. 3, tit. 3, § 56; 1 Stair's Inst. 48. (q) See Watson v. Duke of Northumberlavd, 11 Ves. 155, arguendo. (r) Mundy v. Mundy, 2 Ves. Jun. 124. 276 EQUITY JURISPRUDENCE. [CH. XIV. the legal mode of proceeding is so convenient, as the means this court affords, to settle the interests between them with perfect fairness and equality? It is evident that the commission is much more convenient than the writ; the valuation of these proportions is much more con- sidered: the interests of all parties are much better attended to; and it is a work carried on for the common benefit of both " (s). § 650. This language (it must certainly be admitted) is sufficiently loose and general. But it appears to be by no means a just description of the true nature and reason of the jurisdiction of courts of equity in oases of partition. It is not a jurisdiction founded at all in mere con- venience; but in the judicial incompetency of the courts of common law, to furnish a plain, complete, and adequate remedy for such cases ; for the writ of partition at the common law was a real action, a cum- brous, oppressive, and highly technical form of procedure finally abohshed by statute 3 & 4 WiU. 4, c. 27, s. 36. After that date the jurisdiction of the Court of Chancery became exclusive, and is now vested in the Chancery Division of the High Court by section 34, sub- section 3 of the Judicature Act, 1873 (36 & 37 Vict. c. 66). The true ground is far more correctly stated by Lord Eedesdale, in his admirable treatise on Pleadings in Equity. " In eases of partition of an estate," says he, " if the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have led to applications to courts of equity for partitions, which are efieoted by first ascertaining the rights of the several persons interested ; and then issuing a commission to make the partition required; and, upon the return of the commissioners, and confirmation of that return by the court, the partition is finally completed by mutual conveyances of the allotments made to the several parties " (i). According to the modern practice, the rights of the parties are adjusted by means of a reference to chambers. § 651. The ground, here stated, is of a complication of titles, as the true foundation of the jurisdiction. But it is not even here expressed with entire legal precision. However complicated the titles of the parties might be, still, if they could be thoroughly investigated at law, in the usual course of proceedings in the common-law courts, there would seem to be no sufficient reason for transferring the juris- diction of such cases to the courts of equity. The true expression of the doctrine should have been, that courts of equity interfere in cases of such a complication of titles, because the remedy at law is inadequate and imperfect, without the aid of a court of equity to promote a dis- covery, or to remove obstructions to the right, or to grant some other equitable redress (u). (s) Cahnady v. Calmady, 2 Ves. Jrrn. 570. See also Baring v Nash, 1 Ves & B. 555. (t) Mitford, Eq. PI. by Jeremy, 120; 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (/), pp. 120, 121. (m) Agar v. Fairfax, 17 Ves. 533. § 650 — 654.] PARTITION. 277 § 652. " Partition at law " (said Lord Eedesdale), " and in equity, are different things. The first operates by the judgment of a court of law, and delivering up possession in pursuance of it; which con- cludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties; and, if the parties be not competent to execute the conveyances, the partition cannot be effec- tually had " {x). Hence, if the infancy of the parties, or other circumstances, prevented such mutual conveyances, the decree could only extend to make the partition, give possession, and order enjoyment accordingly, until eSectual conveyances could be made. If the defect arose from infancy, the infant must have had a day after attaining twenty-one years to show cause against the decree. If a contingent remainder, not barrable or extinguishable, were limited to a person not in existence, the conveyance could not be made until he came into being, and was capable, or until the contingency was determined. An executory devisee might occasion a similar embarrassment. And, in either of these cases, a supplemental bill was necessary to carry the original decree into execution (y). The difficulties indicated have been removed by legislation the effect of which will be discussed hereafter. § 653. It is upon this account, that Lord Hardwicke has spoken of the remedy by partition in equity, as being discretionary, and not a matter of right in the parties. "Here" (said he) "the reason" (that the plaintiff should show a title in himself, and not allege, generally, that he is in possession of a moiety of the land) " is because conveyances are directed, and not a partition only, which makes it discretionary, in this court, where a plaintiff has a legal title (whether) they (it) will grant a partition or not; and where there are suspicious circumstances in the plaintiff's title, the court will leave him to law" (z). His lordship was here speaking of legal titles; for, in the same case, he expressly stated, that, where the bill for a partition was founded on an equitable title, a court of equity might determine it; or otherwise, there would be no remedy (a). And, indeed, if there are no suspicious circumstances, but the title is clear at law, the remedy for a partition in equity is as much a matter of right, as at law (b). § 654. In regard to partitions, there was also another distinct ground upon which the jurisdiction of courts of equity was maintain- able, as it constituted a part of its appropriate and peculiar remedial justice. It is, that courts of equity were not restrained, as courts of law were, to a mere partition or allotment of the lands and other real estate between the parties, according to their respective interests in {x) Whaley v. Dawson, 2 Sch. & Lefr. 371, 372. iy) Mitford, Eq. PI. by Jeremy, 120, 121. (z) Cartwright v. Pultney, 2 Atk. 380. (a) Cartwright v. Pultney, 2 Atk. 380. (b) Baring v. Nash, 1 Ves. & B. 555, 556; Parker v. Gerrard, Ambler 236, and Mr. Blunt 's note. 278 EQUITY JURISPRUDENCE. [CH. XIV. the same, and having regard to the true value thereof; but courts of equity might, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compen- sation to one of the parties for owelty or equality of partition, so as to prevent any injustice or unavoidable inequality (c). This a court of common law was not at liberty to do; for when a partition was awarded by such a court, the exigency of the writ was, that the sheriff should cause, by a jury of twelve men, a partition to be made of the premises between the parties, regard being had to the true value thereof; without any authority to mate compensation for any in- equality in any other manner (d). This was in itself a sufficient ground of equity jurisdiction. § 655. Cases of a different nature, involving equitable compensa- tion, to which a court of law is utterly inadequate, may easily be put; such, for instance, as cases, where one party has laid out large sums in improvements on the estate. For, although, under such circum- stances, the money so laid out does not, in strictness, constitute a lien on the estate (e) ; yet, a court of equity will not grant a partition without first directing an account, and compelling the party applying for partition to make due compensation (/). So, where one tenant in common has been in personal occupation or in the exclusive per- ception of the rents and profits, on a bill for a partition, the court will fix him with an occupation rent or direct an account of the rents and profits received (g). So, where one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements; or if that cannot be done, he will be entitled to a compensation for those improvements (h). § 656. Indeed, in a great variety of eases, especially where the property is of a very complicated nature, as to rights, easements, modes of enjoyment, and interfering claims, the interposition of a court seems indispensable for the purposes of justice. For since partition is ordinarily a matter of right, no difficulty in making a partition is (c) Co. Litt. 176 a and fc ; ibid. 168 a. See Earl of Clarendo7i v. Hornby, 1 P. "Will. 446; Warner v. Baynes, Ambler 589; Storey v. Johnson-, 2 Y. & C. 586; Mole v. Mansfield, 15 Sim. 41. (d) Kay v. Johnston, 21 Beav. 536. (e) Co. Litt. 167 a; Com. Dig. Pleader, 3 F. 4. Littleton (§ 251) has spoken of a rent-charge in cases of partition for owelty or equality in partition. But this not in a case of compulsory partition by writ; but of a voluntary partition by deed cr parol, as the context abundantly shows. Co. Litt. 169 b ; Litt. § 260, 852. (/) Swan V. Swan, 8 Price 518; In re Jones, Farrington v. Forester, [1893] 2 Oh. 461. (g) Hill V. Fulbrook, 1 Jac. 574; Pascoe v. Swan, 27 Beav. 508; Teasdale v. Sanderson, 33 Beav. 634. (h) See Parker v. Trigg, W. N. (1874), p. 27; Watson v. Gass, 51 L. J. Ch. 480; Williams v. Williams, 68 L. J. Ch. 628; Kenrick v. Mountstephen, 48 W. B. 141. § 655—658.] PARTITION. 279 allowed to prevail in equity, whatever may be the case at law, as the powers of the court are adequate to a full and just compensatory adjustment (i). There have been cases disposed of in equity which seemed almost impracticable for allotment at law, as in the case of the Cold Bath Fields, in which Lord Hardwicke did not hesitate to act, notwithstanding the admitted difficulties (fc). The Court of Chancery would order a partition if there were parties before the court, who possessed competent present interests, such as a tenant for life, or for years (Z); but not parties entitled in reversion or remainder expectant upon a present interest (m), and the order so made was binding upon those parties only who were before the court, and those whom they virtually represent as parties entitled in remainder although not yet in existence (n) : and the interests of third persons are not affected (o). And it is not an unimportant ingredient in the exercise of equity jurisdiction, in cases of partition, that the parties in interest may be brought before the court, far more extensively than they can be by any processes known to the courts ofi law, for the purpose of doing complete justice (p). It is no longer necessary to make all persons interested parties to the proceedings in the first instance (g). § 657. In equity, too (and it would seem that the same rule prevails at law, though this has sometimes been doubted), where there are divers parcels of lands, messuages, and houses, partition need not be made of each estate separately, so as to give to each party his moiety or other portion in every estate. But the whole of one estate may be allotted to one, and the whole of another estate to the other, provided that his equal share is allotted to each (?■). But it is obvious that, at law, such a partition can rarely be conveniently made, because the court cannot decree compensation, so as to make up for any inequality, which must ordinarily occur in the allotment of different estates to each party. In equity it is in the ordinary course (s). § 658. It is upon some or all of these grounds, the necessity of a discovery of titles, the inadequacy of the remedy at law, the difficulty of making the appropriate and indispensable compensatory adjust- ments, the peculiar remedial processes of courts of equity, and their ability to clear away all immediate obstructions against complete justice, that these courts have assumed a general concurrent juris- (i) Ante, § 653. (it) Warner v. Baynes, Ambler 589. (l) Wills V. Slade, 6 Ves. 498; Baring v. Nash, 1 Ves. & B. 555; Gaskell v Gaskell, 6 Sim. 643; Heaton v. Dearden, 16 Beav. 147. (m) Evans v. Bagshaw, L. E. 5 Ch. 840. (n) Story on Bq. PI. § 144 to 148; Gaskell v. Gasskell, 6 Sim. 643. (o) Agar v. Fairfax, 17 Ves. 544; Watkins v. Williams, 3 Mao. & G. 622. (p) Anon., 3 Swanst. 139, note (b). iq) Partition Act, 1868 (31 & 32 Vict. c. 40), s. 9. (r) Earl of Clarendon v. Hornby, 1 P. Will. 446; Peers v. Needham, 19 Beav. 316. (s) Ante, § 664. 280 EQUITY JURISPRUDENCE. [CH. XIV. diction with courts of law in all cases of partition. So that, it is not now deemed necessary to state, in the bill, any peculiar ground of equitable interference (t). And, unless I am greatly misled in my judgment, this review of the true sources and objects of this concurrent jurisdiction demonstrates, in the most satisfactory manner, how ill- founded the animadversions of Mr. Hargrave (already cited) are, upon the exercise of this jurisdiction (u). But the most conclusive proof in its favour is, that, wherever it exists, it has almost entirely superseded any resort to courts of law to obtain a partition. In making partition, however, courts of equity generally follow the analogies of the law; and will decree in such cases, as the courts of law recognize as fit for their interference (x). But courts of equity are not therefore to be understood as limiting their jurisdiction in partition to cases cognizable or relievable at law; for there is no doubt, that they may interfere in cases where a partition would not lie at law (y) ; as, for instance, in the case where an equitable title is set up (a) or where the estate to be divided is incorporeal. With regard to equitable estates a distinction must be drawn between those cases in which trustees hold property upon trust for sale, and those in which they merely have a power of sale. In the former case there could be no partition, for in the eyes of a court of equity the parties would only be entitled to the j)roperty in its converted state, unless all the parties being sui juris elected to take the property in its unconverted "state (a). § 658a. Many improvements in procedure in partition actions have been introduced by the Partition Act, 1868 (31 & 32 Vict. c. 40), and the Partition Act, 1876 (39 & 40 Vict. c. 17), the most material being the power to order a sale and division of the proceeds, against the will of one or more of the parties interested. Prior to this statute if the only outstanding interest was vested in an infant the court could by a side wind, if a sale were in fact beneficial to the infant, make an order to that effect (6) ; but against the wish of an adult part owner there could be no sale (c). Under sect. 3 of the Act of 1868, the court .is invested with a discretion to order a sale upon the application, of any of the parties interested, and notwithstanding the dissent or dis- ability of any others of them " if it appears to the court that by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circum- (t) Mitford, Eq. PI. by Jeremy, 120. (a) Ante, § 646. (x) Ante, § 646; Wills v. Slade, 6 Vea. 498; Baring v, Nash, 1 Ves. & B. 55S. (y) Swan v. Swan, 8 Price 519. (z) Cartwright v. Pultney, 2 Atk. 380; Com. Dig. Chancery, 4 E., Partition; ante, § 653. (o) Biggs v. Peacock, 22 Ch. D. 284; Boyd v. Allen, 24 Ch. D. 622. (b) Davis v. Turvey, 32 Beav. 554 ; Huhbard v. Hubbard, 2 H. & M. 88. (c) Griffies v. Griffies, 8 L. T. 758. § 658a..] PARTITION. 281 stance," a sale and distribution of the proceeds would be more bene- ficial to the parties (i). By sect. 4 of the same statute, " the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property ' ' may force a sale unless the court " sees good reason to the contrary " (e). The only instance in which opposition has been successfully made to an application for a sale under sect. 4, was where it appeared that the party asking for a sale was actuated by spite or ill-will (/). There is also a power to order a sale on the application of any party "unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale " (g). (d) Pitt V. Jones, 5 App. Cas. 659. (e) Pemberton v. Barnes, L. E. 6 Ch. 685; Porter v. Lopes, 7 Ch. D. 358. (/) Saxton V. BaHley, 48 L. J. Ch. S19. Ig) WiUiams v. Games, L. E. 10 Ch. 204; Richardson v. Feary, 39 Ch. D. 45. 282 EQUITY JURISPRUDENCE. [OH. XV. CHAPTER XV. PARTNERSHIP. § 659. Another head of concurrent jurisdiction arising from similar causes is in relation to Partnership (a). In cases of this nature, where a remedy at law actually exists, it is often found to be very imperfect, inconvenient, and circuitous. But in a very great variety of cases, there is, in fact, no remedy at all at law to meet the exigency of the case. We shall, in the first instance, take notice of such remedies as exist at law; and then proceed to the consideration of others, which are peculiar to courts of equity. § 660. And here it may be pi'oper to begin by a reference to that, which is, in its own nature, preliminary to all other inquiries, to wit, the actual existence of the partnership itself. Although, in many cases, written articles or instruments of partnership exist, as the foundation of the joint concerns ; yet, in many other cases, the partnership itself exists merely in parol; and even in cases of written articles, there are many defects and omissions, which the parties have left unprovided for. Now a controversy may arise in regard to the existence of the partnership between the partners themselves, or between them and third persons. In each case its existence may ^mainly depend upon the discovery which formerly could only be obtained through the instrumentality of a court of equity. If written articles exist, they may be suppressed or concealed; if none exist it may be impracticable to obtain due knowledge of the partnership by any competent witnesses in the ordinary course of law. But, in by far the most numerous and important class of cases, that of secret and dormant partners, ther« ordinarily was not any adequate means at law to get at the names or numbers of the partners. In all such cases, the powers of a court of equity were most effective by means of a bill of discovery, in bringing out all the facts, as well (o) See Com. Dig. Chancery, 3 V. 6. By the Judicature Act, 1873, s. 3i, sub-s. 3. the dissolution of partnerships, or the taking of partnership or other accounts, is assigned to the Chancery Division of tlifi High Court of Justice. The law of partner- ship has been codified by the Act to Declare and Amend the Law of Partnership (53 & 54 Vict. c. 39). This Act defines " Partnership " as follows : " Partnership is the relation which subsists between persons carrying on a business in common with a view to profit." § 659—663.] PARTNERSHIP. 283 in controversies between the partners themselves, as between them and third persons. § 661. But admitting a partnership to exist, let us now proceed to consider what were formerly the remedies at law which exist between the partners themselves. These, of course, were formerly dependent upon the nature of the partnership, and the grievance for which a remedy is sought. If the articles of partnership were under seal, and any violation of any of the stipulations therein contained existed, it might be, and was, properly, remediable by an action of covenant (b). If there were written articles not under seal, or the partnership was by a parol agreement, the proper remedy for any breach of the stipula- tions was by an action of assumpsit. But, as we shall presently see, both these remedies were utterly inadequate to provide for many exigencies and injuries, which might arise out of the violation of partnership rights and duties. § 662. The most extensive, and generally the most operative, remedy at law, between partners, was an action of account. This was the appropriate, and, except under very peculiar circumstances, was the only, remedy, at the common law, for the final adjustment and settlement of partnership transactions. It is a very ancient remedy between partners, in which one, naming himself a merchant, may sue his partner for a reasonable account, naming him a merchant, and charging him as the receiver of the moneys of himself, arising from whatever cause or contract, for the common profit of both, according to the law-merchant (c). § 663. But it is wholly unnecessary to dwell upon the inadequacy of this remedy in cases of partnership, as all the remarks already made in respect to the dilatory, cumbrous, and inconvenient pro- ceedings in actions of account (d), apply, with augmented force, to cases of partnership where it is absolutely impossible, in many cases, to settle the concerns of the partnership, without the production of books, vouchers, and other documents belonging to the partner- ship, and the personal examination of the partners themselves. So intimate is the confidence and so universal the community of interest and operations between partners, that no proceedings, not including a thorough and minute discovery, can enable any court to arrive at the meaaas of doing even reasonable justice between them. And, in addition to the common difficulties in ordinary cases, the death of either partner puts an end, at the common law, to any means of enforcing this remedy by account; for it being founded in privity between the parties, no suit lay by or against the personal representative of the deceased partner to compel an account (e). (b) Schlencker v. Moxsy, 3 B. & C. 789. (c) Co. Litt. 172 a; Pitz. P. B. 117, D. . 403. (a) Rowell v. Satchell, [1903] 2 Ch. 212. (b) Spicer v. Martin, 14 App. Cas. 12 ; In re Birmingham and District Land Go, V. Allday, [1893] 1 Ch. 342. 312 EQUITY JURISPRUDENCE. [CH. XVII. a suit; otherwise the bill was dismissed (o). And, hence the opinion has been expressed, that, unless damages were recoverable at law, no suit could be maintained in equity, for a specific performance. But the whole class of cases of specific performance of contracts respecting real estate, where the contract is by parol, and there has been a part performance, or where the t-erms of the contract have not been strictly complied with, and yet equity relieves the party, are proofs that the right to maintain a suit in equity, to compel a specific performance, does not, and cannot properly be said to depend upon the party's having a right to maintain a suit at law for damages. In cases of specific performance, courts of equity sometimes follow the law, and sometimes go far beyond the law; and their doctrines, if not wholly independent of the point, whether damages would be given at law, are not in general dependent upon it. Whoever should assume the existence of a right to damages in an action at law, as the true test of the jurisdiction in equity, would find himself involved in endless perplexity; for sometimes damages were formerly recover- able at law, where courts of equitj' would not decree a specific per- formance (d), and, on the other hand, damages might not be recover- able at law, and yet relief would be granted in equity (e). Under the present practice, where a party fails to substantiate his claim to specific performance, but is entitled to damages as the appropriate rehef, it is the duty of the court- to proceed at once to assess them (/). § 742. In truth, the exercise of this whole branch of equity juris- prudence, respecting the rescission and specific performance of contracts, is not a matter of right in either party; but it is a matter of discretion in the court {g); not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of 4 that sound and reasonable discretion which governs itself as far as it may, by general rules and principles; but at the same time, which withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties (h). On this account it is not possible to lay down any rules and principles, which are of absolute obligation and authority in all cases; and, therefore, it would be a waste of time to attempt to limit the principles, or the exceptions, which the complicated transactions of the parties, and the ever-changing habits of society, may, at different times, and under (c) Dodsley v. Kinnersley, Ambler 406. (d) Shrewsbury and Birmingham Ry. v. L. ,(■ N. W. Ry.^ 17 Q. B. 652; in equity 6 H. L. C. 113. (e) Lester v. Foxcroft, Colles P. C. 108; Coles v. Pilkington, L. E. 19 Eq. 174. (/) Tamplin v. James, 15 Ch. D. 215; Olley v. Fisher. 34 Ch. D. 367. ig) Clowes v. Higginson, 1 Ves. & B. 527; Scott v. Alvarez, [1895] 2 Ch. 603. (h) Hall V. Warren, 9 Ves. 605; Revell v. Hussey, 2 Ball. & B. 280; Haywood J Cope, 25 Beav. 140; Smith v. Colbourns, [1914] 2 Ch. 533. § 742 — 746.] SPECIFIC performance. 313 different circumstances, require the coui't to recognize or consider. The most that can be done is, to bring under review some of the leading principles and exceptions which the past times have furnished, as guides to direct and aid our future inquiries. § 743. Let us now, in the next place, proceed to the consideration of the remaining and far the most numerous class of cases, in which courts of equity are called upon to decree a specific performance of contracts; that is to say, contracts respecting land. These are assigned to the Chancery Division of the High Court by section 34 of the Judicature Act, 1878 (86 & 37 Vict. c. 66). An action cannot be maintained for the specific performance of a contract where the subject- matter is land situate in a country not subject to the British crown (i). But if the land is situate in a country so subject (be it even a colony or dependency), then the action is maintainable. Accordingly, it was held by Lord Hardwicke, that the specific performance of a contract, respecting the boundaries of the colonies of Pennsylvania and Mary- land, entered into by the proprietaries, might be decreed by the Court of Chancery in England (k). The like doctrine was held in the case of an agreement respecting the Isle of Man, where a specific performance was decreed by the Court of Chancery in England, although the isle was without the realm (i). In like manner, in a contract respecting lands in Ireland, a specific performance has been decreed (m). § 744. The incapacity to enforce the decree in rem constitutes no objection to the right to entertain such a suit (n). Where, indeed, the lands lie within the reach of the process of the court., courts of equity will not exclusively rely on the proceedings in personam; but will put the successful party in possession of the lands, if the other party remains obstinate, and refuses to comply with the decree (o). § 745. But to return to the class of cases where a specific per- formance is sought on contracts respecting land, situate in the country where the suit is brought. This class may be subdivided into two heads. (1) Where relief is sought upon parol contracts within the Statute of Frauds (29 Car. 2, ch. 3) ; and (2) where it is sought under written contracts, not falling within the scope of that statute. § 746. It has been already suggested, that courts of equity are in the habit of interposing to grant relief in cases of contracts respecting real property, to a far greater ext«nt than in cases respecting (8) In re Hawthorn, Graham v. Massey, 23 Ch. D. 743. (k) Penn v. Lord Baltimore, 1 Ves. Sen. 444. (/) Earl of Athol v. Earl of Derby, 1 Ch. Gas. 221. (m) Archer v. Preston, cited 1 Vern. 77 ; s.c. 1 Bq. Abr. 133. (n) Earl of Arglasse v. Muschamp, 1 Vern. 135. (o) Penn v. Lord Baltimore, 1 Ves. Sen. 454; Roberdeau v. Rous, 1 Atk. 643; Stribley v. Hawkie, 3 ^tk. 275. 314 EQUITY JURISPHUDENCE. [CH. XVII. personal property; not, indeed, upon the ground of any distinction founded upon the mere nature of the property, as real or as personal; but, at the same time, not wholly excluding the consideration of such a distinction. In regard to contracts respecting personal estate, it is (as has already been intimated) generally true that no particular or peculiar value is attached to any one thing over another of the same kind ; and that a compensation in damages meets the full merits, as well as the full objects, of the contracts. If a man contracts for the purchase of a hundred bales of cotton, or bags of sugar or of cofiee, of a particular description or quality, if the contract is not specifically performed, he may, generally, with a sum equal to the market-price, purchase other goods of the same kind of a like description and quality ; and thus completely obtain his object, and indemnify himself against loss (p). But, in contracts respecting a specific messuage or parcel of land, the same considerations do not ordinarily apply. The locality, character, vicinage, soil, easements or accommodations of the land generally, may give it a peculiar and special value in the eyes of the purchaser ; so that it cannot be replaced by other land of the same precise value but not having the same precise local conveniences or accommodations (q) ; and, therefore, a compensation in damages would not be adequate relief. It would not attain the object desired ; and it would generally frustrate the plans of the purchaser. And hence it is, that the jurisdiction of courts of equity to decree specific performance, is, in cases of contracts respecting land, imiversally maintained; whereas, in cases respecting chattels, it is limited to special circumstances. § 747. Courts of equity, too, in cases of contracts respecting real property, have been in the habit of granting this relief, not only to a greater extent, but also under circumstances iai^ more, various and more indulgent than in cases of contracts respecting chattels. For they do not confine themselves to cases of a strict legal title to relief. Another principle, equally beneficial, is well known and established, that courts of equity will not permit the forms of law to be made the instruments of injustice; and they will, therefore, interpose against parties attempting to avail themselves of the rigid rules of law for unconscientious purposes. When, therefore, advantage is taken of a circumstance that does not admit of a strict performance in the contract, if the failure is not in a matter of substance, courts of equity will interfere (r). Thus, they are in the habit of relieving in contracts for real property, where the party, from his own inadvertence or neglect, has suffered the proper time to elapse for the punctilious performance of his contract, and from that and other circumstances, (/)) Ante, §§ 716, 717, 718 to 724. (q) Adderley v. Dixon, 1 Sim. & Stu. 607; Peers v. Lambert, 7 Beav. 546. (r) Halsey v. Grant, 13 Ves. 73; Hill v. Buckley, 17 Ves. 394; Wilson v. Williams, 3 Jur. N. S. 810; Rudd v. Lascelles, [1900] 1 Ch. 81*. § 747 — 750.] SPECIFIC performance. 315 he could not maintain an action to recover damages at law until the equitable rule was made generally applicable by section 25, sub- section 7 of the Judicature Act, 1873 (37 & 38 Vict. c. 66) (s). Even where nothing exists to prevent the parties suing at law, so many circumstances are necessary to enable him to recover, at law, that the mere formal proofs alone render it very inconvenient and hazardous so to proceed, even if the legal remedy would (as in many cases it would not) be adequate to the demands of substantial justice. § 748. On these accounts (as has been well remarked), courts of equity have enforced contracts of this sort, where no action for damages could be maintained; for, at law, the party plaintiff must have strictly performed his part; and the inconvenience of insisting upon that in all cases is sufficient to require the interference of courts of equity. They dispense with that which would make a compliance with what the law requires oppressive; and, in various cases of such contracts, they are in the constant habit of relieving a party who has acted fairly, although negligently (t). § 749. On the other hand, as the interference of courts of equity is discretionary, they will not enforce a specific performance of such contracts at the instance of the vendor, where his title is involved in difficulties which cannot be removed readily, although, perhaps, at law, an action might be maintainable against the defendant for damages for his not completing his purchase (u). § 750. Indeed, the proposition may be more generally stated, that courts of equity will not interfere to decree a specific performance, except in cases where it would be strictly equitable to make such a decree (x). There is no pretence to say, that it is the doctrine of courts of equity to carry into specific execution every contract in all cases, where that is found to be the legal intention and effect of the contract between the parties. If, in any case, the parties have so dealt with each other, in relation to the subject-matter of a contract, that the object of one party is defeated, while the other party is at liberty t-o do as he pleases, in relation to that very subject; or if, in fact, the character and condition of the property, to which the contract is attached, have been so altered, that the terms and restrictions of it are no longer applicable to the existing state of things; in such eases courts of equity will noti grant any relief, but will leave the parties to their remedy at law (y). (s) Seton V. Slade, 7 Ves. 265; Stickney v. Keeble, [1915] A. C. 386. (t) Lord Bedesdale, in Lennon v. Napper, 2 Sch. & Lefr. 684. («) Lechmere v. Brazier, 2 J. & W. 287; Fraser v. Wood, 8 Beav. 339; Nokes v. Lord Kilmorey, 1 De G. & Sm. 444. (x) Webster v. Cecil, 30 Beav. 62; Higgins v. Samels, 2 J. & H. 460; Earl of Durham v. Lsgard, 34 Beav. 611; Rudd v. Lascelles, [1900] 1 Ch. 815. (y) Duke of Bedford v. Trustees of the British Museum, 2 Myl. & K. 552. 316 EQUITY JURISPRUDENCE. [CH. XVII. § 751. Where, indeed, a contract respecting real property is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it, as it is for a court of law to give damages for the breach of it (a). And generally, it may be stated, that courts of equity will decree a specific performance, where the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed (a), but not otherwise. The form of the instrument, by which the contract appears, is wholly unimportant. Thus, if the contract appears only in the condition of a bond secured by a penalty, the court will act upon it as an agreement, and will not suffer the party to escape from a specific performance by offering to pay the penalty (b). On the other hand, if courts of equity refuse to interfere, they inflict no injury upon the plaintiff; for no decision is made, which affects his right to proceed at law for any redress by way of damages to which he may be entitled. The whole effect of the dismissal of his suit is, that he is barred of any equitable relief. § 751a. Courts of equity will also, in allowing or denying a specific performance, look not only to the nature of the transaction, but also to the character of the parties who have entered into the contract. Thus, if the purchase be made by trustees for the benefit of a cestui que trust, and there be a substantial misdescription of the premises, courts of equity will not enforce against them a specific performance with compensation, as being prejudicial to the cestui que trust and incapable of being ascertained (c). § 752. With these explanations in view, let us now proceed to examine, in the first place, in what cases a specific performance will be decreed of contracts respecting lands, where they are within the provisions of the Statut-e of Frauds (29 Car. II. c. 3). That statute declares that ' ' All interests in lands, tenements, and hereditaments, except leases for three years, not put in writing and signed by the parties or their agents authorized by writing, shall not have, nor be deemed in law or equity to have, any greater force or effect than leases or estates at will." It further enacts that, "No action shall be brought, whereby to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning the same, or upon any agreement, that is not to be performed within the space of one year from the making thereof, unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party or his lawful (z) Hall V. Warren, 9 Ves. 608; Eastern Coimties By. v. Hawkes, 5 H. L. C. 331. (a) Denton v. Stewart, 1 Cox 258; Greenaway v. Adams, 12 Ves. 395, 400. (b) Logan v. Weinholt, 1 CI. & F. 611; French v. Macale, 2 Dru. & War. 269. (c) Wedgwood v. Adams, 6 Beav. 600. § 751 — 754.] SPECIFIC PERFORMANCE. 317 agent." By the same statute, declarations of trust of land (d), created by the parties, cannot be enforced unless manifested and proved by writing; but trusts resulting by implication of law are to remain as they stood before the passing of the Act. § 753. The objects of this statute are such, as the very title indicates, to prevent the fraudulent setting up of pretended agree- ments, and then supporting them by perjury. But, besides these direct objects, there is a manifest policy in requiring all contracts of an important nature to be reduced to writing, since otherwise, from the imperfection of memory, and the honest mistakes of witnesses, it must often happen, either that the specific contract is incapable of exact proof, or that it is unintentionally varied from its precise original terms. So sensible were courts of equity of these mischiefs, that they constantly refused, before the statute, to decree a specific performance of parol contracts, unless confessed by the party in his answer, or unless they were in part performed (e). § 754. It is obvious that courts of equity are bound, as much as courts of law, by the provisions of this statute; and, therefore, they ((f) McFadden v. Jenkyns, 1 Ph. 153; Cochrane v. Moore, 25 Q. B. D. 57. (e) Lord St. Leonards, in his learned treatise on Vendors and Purchasers, ch. 4, § 2, pp. 107, 108 (7th edit.), has reviewed the cases and stated the result. " There are four cases in Tothill, which arose previously to the Statute of Frauds, and appear to be applicable to the point under consideration ; for equity, even before the Statute of Frauds, would not execute a mere parol agreement, not in part performed. In the first case, Williams v. Neville, Toth. 135, which was heard in the 38th of Eliz., relief was denied, ' because it was but a preparation for an action upon the case.' In the two next cases (Feme v. Bullosk, Toth. 206, 208; Clark v. Hackwell, id.), which came on in the 9th of Jac. 1, parol agreements were enforced, apparently on account of the payment of a very trifling part of the purchase-money ; but the particular circumstances of these cases do not appear. The last case reported in Tothill (Miller v. Blandist, Toth. 85) was decided in the 30th of Jac. 1, and the facts are distinctly stated? The bill was to be relieved concerning a promise to assure land of inheritance, of which there had not been any execution, but only 55s. paid in hand, and the bill was dis- missed. This point received a similar determination in the next case on the subject before the statute, which is reported in 1 Ch., and was determined in the 15th of Car. 2. Simmons v. Cornelius, 1 Ch. 128. So the same doctrine was adhered to in a case which occurred three years afterwards, and is reported in Freeman, Anon., 2 Freem. 128; for, although a parol agreement for a house, with 20s. paid, was decreed without further execution proved, yet it appears by the judgment, that the relief would not have been granted if the defendant, the vendor, had demurred to the bill, which he had neglected to do, but had proceeded to proof. The last case I have met with previ- ously to the statute, was decided in the 2lBt of Car. 2, Voll v. Smith, 3 Ch. 16, and there a parol agreement, upon which only 203. were paid, was carried into specific execution. This case probably turned, like the one immediately preceding it, on the neglect of the defendants to demur to the bill. It must be admitted that the foregoing decisions are not easily reconcilable ; yet, the result of them clearly is, that payment of a trifling part of the purchase-money was not ■-■ part performance of a parol agree- ment. Whether payment of a considerable sum would have availed a purchaser does not appear. In Toth. 67, a case is thus stated : ' Moyl v. Home, by reason £200 was deposited towards payment, decreed.' This case may, perhaps, be deemed an autho- rity, that, prior to the statute, the payment of a substantial part of the purchase-money would have enabled equity to specifically perform - parol agreement ; but it certainly is too vague to be relied on." Ibid., p. 120. 318 EQUITY JURISPRUDENCE. [CH. XVII. are not at liberty to disregard them (/). That they do, however, interfere in some cases within the reach of the statute, is equally certain. But they do so, not upon any notion of any right to dispense with it, but for the purpose of administering equities subservient to its true objects, or collateral to it, and independent of it (g). § 755. In the first place, then, courts of equity will enforce a specific performance of a contract within the statute, not in writing, where it is fully set forth in the statement of claim and admitted in the defence of the defendant (h). The statute is obviously designed to guard against fraud and perjury; and where there is no conflict of evidence, the ease then is taken entirely out of the mischief intended to be guarded against by the statute (i). Another reason was suggested by the learned author; and that was that the agreement, although originally by parol, became thereby evidenced by writing under the signature of the party which is a complete compliance with the terms of the statute. This reason is clearly inadmissible, for although the statutory requirements are satisfied by a writing coming into existence after the contract is entered into (k), the writing must have been in existence before action brought (I). § 756. But where the defence admits the parol agreement, and insists upon the Statute of Frauds as a defence, the question arises whether courts of equity will allow the statut-e, under such circum- stances, as a bar; or whether they will, notwithstanding the statute, decree a specific performance upon the ground of the confession. Upon this question, there has been no small conflict of judicial opinion. Lord Macclesfield expressly decreed a specific performance in such a case (m). § 757. But this opinion must now be deemed to be entirely over- ruled, and the doctrine firmly established, that even where the defence admits the parol agreement, if it insists, as it must now do (n), by way of defence, upon the protection of the statute, the defence must prevail as a competent bar (o). This doctrine seems conformable to the true intent and objects of the statute, which does not affect the (/) Emmet v. Dewhurst, 3 Mac. & G. 587 ; Caton v. Caton, L. E. 1 Ch. 137 ; 2 H. L. 127 ; May v. Piatt, [1900] 1 Ch. 616. ig) Mallet v. Halfpenny, cited Prec. Ch. at p. 404; Middleton v. Middleton, 1 J. & W. 94; Wood V. Midgley, 5 De G. M. & G. 41. (h) Att.-Gen. v. Sitwell, 1 Y. & C. Ex. at p. 583; Ex parte National Provincial Bk. of England; in re Boulter, 4 Ch. X>. 241. (i) Bacon, V.-C, Ex parte National Provincial Bk. of England, in re Boulter, 4 Ch. D. 241. (k) In re Holland, Gregg v. Holland, [1902] 2 Ch. 360. U) Lucas V. Dixon, 22 Q. B. D. 357. (m) Child V. Godolphin, 1 Dick. 39;"s.c. cited 2 Bro. C. C. 566; Child v. Comber, 3 Swanst. 423, note. (n) E. S. C. 1883, Order XIX., rule 15; Catling v. King, 5 Ch. D. 660. (o) Blagden v. Bradbear, 12 Ves. 466. § 755 — 760.] SPECIFIC performance. 319 validity of the contract, but merely the method of proof (p), and by insisting on the statute, the defendant merely exercises his right to put the plaintiff to a strict proof of his case. § 759. In the next place, courts of equity will enforce a specific performance of a contract within the statute, provided it affects land (g), where the parol agreement has been partly carried into execution. The distinct ground, upon which courts of equity interfere in cases of this sort, is, as before observed, that the statute does not affect the validity of the contract. It would, therefore, have entitled a defendant to an action for trespass quare clausum fregit, to prove a verbal agreement for a sale of land under a plea of leave or licence. Where the act of the party defendant would have been a trespass but for the verbal agreement, then the agreement may be sued upon in equity as a substantive cause of action (r). § 760. But the more difficult question is to ascertain what, in the sense of courts of equity, is to be deemed a part performance, so as to extract the case from the reach of the statute. It seems formerly to have been thought that a deposit, or security, or payment of the purchase-money, or a part of it, or at least of a considerable part of it, was such a part performance as took the case out of the statute. But that doctrine was open to much controversy, and is now finally overthrown (s). Indeed, the distinction taken in some of the cases, between the payment of a small part and the payment of a consider- able part of the purchase-money seems quite too refined and subtle ; for, independently of the difficulty of saying what shall be deemed a small, and what a considerable, part of the purchase-money, each must, upon principle, stand upon the same reason; namely, that it is a part performance in both cases, or not in either. One ground, why part payment is not now deemed a part performance, sufficient to take a case out of the statute, is, that the money can be recovered back again at law (t), and, therefore, the case admits of full and direct compensation. This ground is not, however, quit« satisfactory; for the party may become insolvent before the judgment at law can be executed. But the purchaser is also entitled to an equitable lien upon the land for the money paid by him (m). Another ground has been stated. It is, that the statute has said, in another clause (that (p) See Buckmaster v. Harrop, 7 Ves. 346; Whitbread v. Brockhurst, 1 Bro. C. C. 417; s.c. 2 Ves. & B. 153, note; Morphett v. Jones, 1 Swanst. 181 ; GUnan v. Cooke, 1 Sch. & Lefr. 41; Mr. Eaithby's note to Hollis v. Edwards, 1 Yarn. 159; Leroux v. Brown, 12 C. B. 801. (g) Britain v. Rossiter, 11 Q. B. D. 123; Maddison v. Alderson, 8 App. Cas. 467. (r) Wilson v. West Hartlepool By., 2 De G. J. & S. 475; Mills v. Haywood, 6 Ch. D. 196 ; Dickinson v. Barrow, [1904] 2 Ch. 339. (s) Clinan v. Cooke, 1 Sch. & Lefr. 22; Caddick v. Skidmore, 2 De G. & J. 62. (tj Wilde v. Fort, 4 Taunt. 334. (u) Rose V. Watson, 10 H. L. C. 672; Whitbread & Co. v. Watt, [1902] 1 Ch. 835. 320 EQUITY JURISPRUDENCE. [CH. XVII. wbich respects contracts for goods), that part payment, by way of earnest, shall operate as a part- performance. And hence, the courts have considered this clause as excluding agreements for lands, because it is to be inferred, that, when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands (x). § 761. But a more general ground, and one which has met with some favour, is, that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him, unless the agreement is fully performed (y). This is hardly accurate, although the converse holds good, namely, that where it would be a fraud upon the party in the nature of a surprise, not to give effect to the verbal agreement, the statute will be displaced. Thus, for instance, if upon a parol agreement a man is admitted into possession, he could be made a trespasser, unless allowed to set up a parol agreement for the purpose of defending himself against a charge as a trespasser, and against an action to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection; and if admissible for such a purpose, there seems no reason why it should not be admissible throughout (2). A ease still more cogent might be put, where a vendee, upon a parol agreement for a sale of land, should proceed to buUd a house on the land, in the confidence of a due completion of the contract. In such a case, there would be a manifest fraud upon the party, in permitting the vendor to escape from a due and strict fulfilment of such agree- ment (a). Such a case is certainly distinguishable from that of part payment of the purchase-money, for the latter may be repaid, and the parties are then just where they were before, especially if the money is repaid with interest. A man who has parted with his money is not in the situation of a man against whom an action may be brought, and who may otherwise suffer an irreparable injury (b). § 762. In order to make the acts such as a court of equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed. For, if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement (c). On this account, acts,. (x) Clinan v. Cooke, 1 Sch. & Lefr. 22. (y) Clinan v. Cooke, 1 Sch. & Lefr. 22. (z) Pain V. Coombs, 1 De G. & J. 34; Wilson v. West Hartlepool Ry., 4 De ft. J. & S. 475; Mills v. Hayward, 6 Ch. D. 196. See Dickinson v. Barrow, [1904] 2' Ch. 339. (a) Lester v. Foxcroft, Colles P. C. 108; Savage v. Foster, 9 Mod. 35; Coles v. Pilkington, L. E. 19 Eq. 174. (b) Wilde v. Fort, 4 Taunt. 334 ; Sutherland v. Briggs, 1 Hare 26. (c) Frame v. Dawson, 14 Ves. 386; Ex parte Hooper, 19 Ves. 479; Morphett v. § 761 — 763a..] specific performance. 321 merely introductory or ancillary to an agreement, are not considered as a part performance thereof, although they should be attended with expense. Therefore, delivering an abstract of title, giving directions for conveyances, going to view the estate, fixing upon an appraiser to value stock, making valuations, admeasuring the lands, registering conveyances, and acts of the like nature, are not sufficient to take a case out of the statute (d). They are all preliminary proceedings, and are, besides, of an equivocal character, and capable of a double interpretation ; whereas acts, to be deemed a part performance, should be so clear, certain, and definite in their object and design, as to refer exclusively to a complete and perfect agreement, of which they are a part execution. § 763. In like manner, the mere possession of the land contracted for will not be deemed a part performance, if it be obtained wrong- fully by the vendee, or if it be wholly independent of the contract. Thus, if the vendee enter into possession, not under the contract, but in violation of it, as a trespasser, the case is not taken out of the statute. So, if the vendee be a tenant in possession under the vendor; for his possession is properly referable to his tenancy, and not to the contract (e). But if the possession be delivered and obtained solely under the contract; or if, in case of tenancy, the nature of the holding be different from the original tenancy, as by the payment of a higher rent, or by other unequivocal circumstances, referable solely and exclusively to the contract; there, the possession may take the case out of the statute. Especially will it be held to do so, where the party let into possession has expended money in building or repairs, or other improvements ; for under such circumstances, if the parol contract were to be deemed a nullity, he would be liable to be treated as a trespasser; and the expenditure would not' only operate to his prejudice, but be the direct result of a fraud practised upon him (/). § 763a. It seems to be now settled that possession, taken pre- viously to, but continued after, a parol agreement, may be a sufficient act of part performance to exclude a defence founded on the Statute of Frauds, if the entry being tortious originally, the continuance in possession has been acquiesced in by the defendant, or if the possession can otherwise be referred to the (contract alleged (g). Jones, 1 Swanst. 181; Reynolds v. Waring, Younge, 346; Maddisonv. Alderson, 8 App. Cas. 467. (d) Pembroke v. Thorpe, 3 Swanst. 437 n. ; Clarke v. Wright, 1 Atk. 12; Whaley V. Bagenal, 1 Bro. P. C. 345; Frame v. Dawson, 14 Ves. 386. (e) Cole V. White, cited 1 Bro. C. C. 409; Frame v. Dawson, 14 Ves. 386; Glinan V. Cooke, 1 Sch. & L. 22; Lindsay v. Lynch, 2 Sch. & Lefr. 1. (/) Wills V. Stradling, 3 Ves. 378; Gregory v. Mighell, 18 Ves. 328; Morphett V. Jones, 1 Swanst. 172; Fabian y. Nunn, L. E. 1 Ch. 35. (3) Gregory v. Mighell, 18 Ves. 328; Hodson v. Heuland, [1896] 2 Ch. 428. 322 EQUITY JURISPRUDENCE. [CH. XVII. § 763b. In recent times the opinion has been expressed judicially that the following propositions result from the authorities : — (1) "The doctrine of part performance of a parol agreement, which enables proof of it to be given notwithstanding the Statute of Frauds, though principally applied in the case of contracts for the sale or purchase of land, or for the acquisition of an interest in land, has not been confined to those cases. (2) " Probably it would be more accurate to say it applies to all cases in which a court of equity would entertain a suit for specific performance, if the alleged contract had been in writing. (3) " The most obvious case of part performance is where the defendant is in possession of land of the plaintiff under the parol agreement. (4) ' ' The reason for the rule is that, where the defendant has stood by and allowed the plaintiff to fulfil his part of the contract, it would be fraudulent to set up the statute. (5) " But this reason applies wherever the defendant has obtained and is in possession of some substantial advantage under a parol agreement, which, if in writing, would be such as the court would direct to be specifically performed. (6) " The doctrine applies to a parol agreement for an ease- ment, though no interest in land is intended to be acquired " (h). § 764. But in order to take a case out of the statute, upon the ground of part performance of a parol contract, it is not only indis- pensable that the acts done should be clear and definite, and referable exclusively to the contract, but that the contract should also be established by competent proofs to be clear, definite, and unequivocal in all its "terms. If the terms are uncertain, or ambiguous, or not made out by satisfactory proofs, a specific performance will not (as, indeed, upon principle it should not) be decreed. The reason would seem obvious enough, for a court of equity ought not to act upon conjecture ; and one of the most important objects of the statute was, to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn written contracts. Yet it is certain that, in former tinaes, very able judges felt themselves at liberty to depart from such a reasonable course of adjudication, and granted relief, notwithstanding the uncertainty of the terms of the contract. In other words, the court framed a contract for the parties, ex lequo et bono, where it found none (i). Such a latitude of jurisdiction seems unwarrantable upon any sound principle, and, accordingly, it has been expressly renounced in more recent times (fc). It may, perhaps, be true that, in such cases of part, performance, the court has not been (h) McManus v. Cooke, 35 Ch. D. 681, 697. (i) Anon., 5 Vin. Abr. 523, pi. 40; ibid. 622, pi. 38; Anon., cited 6 Ves. 470; Allan V. Bower, 3 Bro. C. C. 149. (k) Milnes v. Gery, 14 "Ves. 400; Reynolds v. Waring, Younge, 846. § 7636 — 766.] specific performance. 323 deterred from making an inquiry, before a master, into the terms of the contract, by the mere fact that all the terms are not sufficiently before the court to enable it to make a final decree (I). But if such an inquiry should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, then the court will withhold a final decree for a specific performance (m). § 765. It must be admitted that the exceptions thus allowed do greatly trench upon the policy and objects of the Statute of Frauds; and, perhaps, there might have been as much wisdom originally in leaving the statute to its full operation, without any attempt to create exceptions, even in cases where the statute would enable the party to protect himself from a performance of his contract through a medi- tated fraud. For, even admitting that such cases might occur, they would become more and more rare as the statute became better under- stood ; and a partial evil ought not to be permitted to control a general convenience. And, indeed, it is far from being certain that these very exceptions do not assist parties in fraudulent contrivances, and increase the temptations to perjury, quit* as often as they do assist them in the promotion of good faith and the furtherance of justice. These exceptions have also led to great embarrassments in the actual adminis- tration of equity; and although in some cases one may clearly see that no great mischiefs can occur from enforcing them, yet, in others, difficulties may be stated in their practical application which compel us to pause, and to question their original propriety. § 766. Considerations of this sort have led eminent judges to declare that they would not carry the exceptions of cases from the Statute of Frauds farther than they were compelled to do. by former decisions (n). Lord Eedesdale has strongly said, " The statute was made for the purpose of preventing perjuries and frauds, and nothing can be more manifest to any person who has been in the habit of practising in courts of equity than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would probably have been that few instances of parol agreements would have occurred. Agree- ments would, from the necessity of the case, have been reduced to writing ; whereas it is manifest that the decisions on the subject have opened a new door to fraud, and that, under pretence of part execution, if possession is had in any way whatsoever, means are frequently found to put a court of equity in such a situation that, without depart- ing from its rules, it feels itself obliged to break through the statute. And, I remember, it was mentioned in one case, in argument, as a (I) Allan V. Bower, 3 Bro. C. C. 149, and Mr. Belt's notes, p. 151, notes (2), (3). (m) Lindsay v. Lynch, 2 Sch. & Lefr. 7, 8. (n) Lord Alvanley, M.E., Forster v. Hale, 3 Ves. at p. 713; Alexander, C.B., Reynolds v. Waring, Younge, at p. 350. 324 EQUITY JURISPHUDKNCE. [CH. XVII. common expression at the bar, that it had become a practice to improve gentlemen out of their estates. It is, therefore, absolutely necessary for courts of equity to niake a stand, and not carry the decisions farther " (o). § 767. We have already had occasion to see that parol agreements, even with part performance, will not be decreed to be specifically executed unless the whole terms of the contract are clear and definitely ascertained (p). The same rule applies to cases of written contracts. If they are not certain in themselves, so as to enable the court to arrive at the clear result of what all the terms are, they will not be specifically enforced (q). In the first place, it would be inequitably to carry a contract into effect where the court is left to ascertain the intentions of the parties by mere conjecture or guess; for it might be guilty of the error of decreeing precisely what the parties or one of them never did intend or contemplate (r). In the next place, if any terms are to be supplied, it must be by parol evidence ; and the admission of such evidence would let in all the mischief intended to be guarded against by the statute. Indeed, it would be inconsistent with the general principles of evidence (although there are exceptions (s) ) which are administered in courts of equity as well as in courts of law ; for the general rule in both courts is, that parol evidence is not admissible to vary or explain a written con- tract (t) ; the natural inference being that the parties regard a formal instrument as embodying the whole terms of their ultimate agreement, an inference which may be displaced by appropriate evidence (u). Evidence is admissible and indeed necessary to identify the subject- matter (x). § 768. Another exception to the statute, turning upon similar considerations, is, where the agreement is intended by the parties to be reduced to writing, according to the statute ; but it is prevented from being done by the fraud of one of the parties. In such a case, courts of equity have said that the agreement shall be specifically executed, for otherwise, the statute, designed to suppress fraud, would (o) Lindsay v. Lynch, 2 Sch. c& Lefr. 4, 5, 7. (p) Ante, §§ 751, 764o. (g) Harnett v. Yeilding, 2 Sch. & Lefr. 649; Taylor v. Partington, 7 De G. M. & G. 328; Douglas v. Baynes, [1908] A. C. 477. (r) Lindsay v. Lynch, 2 Sch. & Lefr. 7, 8; Harnett v. Yeilding, 2 Sch. & Lefr. 555 ; Holloway v. Headington, 8 Sim. 324. (s) Some of these exceptions have been already considered under the heads of Accident, Mistake, and Fraud; but the full examination of the subject belongs to a treatise on Evidence. (t) Marq. Townshend v. Stangroom, 6 Ves. 328; Rich v. Jackson, in note, 6 Ves. 334, note (c); Woollam v. Hearn, 7 "Ves. 211. («) Harris v. Rickett, 4 H. & N. 1; Loxley v. Heath, 1 De G. F. & J. 489; Legott V. Barrett, 16 Ch. D. 306; Page v. Midland Ry., [1894] 1 Ch. 11. (x) Ogilvie v. Foljambe, 3 Mer. 63; Macdonald v. Longbottom, 1 Ell. & B. 977; Shardlow v. Cotterill, 20 Ch. D. 90. § 767 — 769.] SPECIFIC performance. 325 be the greatest protection to it (y). Thus, if one agreement in writing should be proposed and drawn, and another should be fraudulently and secretly brought in and executed in lieu of the former, in this and the like cases equity would relieve. So, if instructions are given by an intended husband to prepare a marriage settlement, and he promises to have the settlement reduced to writing, and then fraudulently aJid secretly prevents it from being done, and the marriage takes effect, in consequence of false assurances and contrivances, a specific perform- ance wiU be decreed (2). But, if there has been no fraud, and no agreement to reduce the matter to writing ; but the one party has placed reliance solely upon the honour, word, or promise of the other, no relief will be granted (o) ; for in such a case the party chooses to rest upon a parol agreement, and must take the consequences (b). And the subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails •in other cases of contract. In this respect it is always treated as a peculiar case standing on its own grounds (c). So, if a man should treat for a loan of money on mortgage, and the conveyance is to be by an absolute deed of the mortgagor, and a defeasance by the mort- gagee ; and, after the absolute deed is executed, the mortgagee fraudulentlj' refuses to execute the defeasance, equity will decree a specific performance (d). So, where a father had purchased lands in fee, and on his death-bed told his eldest son that the lands were purchased with his second son's money, and that he intended to give them to him, and the eldest son promised that he should enjoy them accordingly, and the father died, and the eldest son refused to comply with his promise ; it was held that the promise should be specifically performed, upon the ground of fraud, notwifhstanding the objection that there ought to have been a declaration of the use or trust, under the statute (e). Other cases of a like character have occurred under the head of fraud, and similar considerations may apply in cases of accident and mistake, clearly and incontrovertibly made out (/). § 769. And here it is important to take notice of a distinction between the case of a plaintiff seeking a specific performance in (y) Montacute v. Maxwell, 1 P. Will. 618 ; s.c. 1 Eq. Abr. 19, Free. Ch. 526. (z) Ibid. See ante, § § 331, 374; Taylor v. Beech, 1 Vea. 297, 298; Redding V. Wilkes, 3 Bro. C. C. 400; Dund. 192; Shepard v. Jones, 21 Ch. D. 469; Henderson v. Astwood, [1894] A. C. 150. (z) Shepard v. Jones, 21 Ch. D. 469. (a) Shepard v. Jones, 21 Ch. D. 469. (b) Butler's note (1) to Co. Litt. 204 b; Keech v. Hall, Doug. 21; Moss v. Galli- more, Doug. 279. (c) Ex parte Wilscm, 2 Ves. & B. 252; In re Hoare, Hoare v. Owen, [1892] 3 Ch. 94. (.d) Van Gelder Apsimon & Co. v. Sowerby Bridge Flour Society, 44 Ch. D. 374. 420 EQUITY JUEISPEUDENCE. [CH. XXVI. mitted to do any acts jeopardizing the sufficiency of the security of the mortgagee (c). § 1018. As to what constitutes a mortgage, there is no difficulty whatever in courts of equity, although there may be technical embar- rassments in courts of law. The peurticular form or words of the con- veyance are unimportant; and it may be laid down as a general rule, subject to few exceptions, that wherever a conveyance, assignment, or other instrument, transferring an estate, is originally intended between the parties as a security for money, or for any other incumbrance whether this intention appear from the same instrument or from any other (/), it is always considered in equity as a mortgage, and conse- quently is redeemable upon the performance of the conditions or stipulations thereof (g). Even parol evidence is admissible in some cases, as in cases of fraud, accident, and mistake, to show that a con- veyance, absolute on its face, was intended between the parties to be a mere mortgage or security for money ; but the evidence is - to be regarded with suspicion (h). § 1019. So inseparable, indeed, is the equity of redemption from a mortgage, that it cannot be disannexed, even by an express agreement of the parties. If, therefore, it should be expressly stipulated, that unless the money should be paid at a particular day, or by or to a par- ticular person, the estate should be irredeemable, the stipulation would be utterly void (z). In this respect courts of equity act upon the same principle, which (we have seen) is avowed in the civil law (k) ; and most probably it has been borrowed from that source. A distinction also is taken, like that in the civil law, between a conditional purchase, or an agreement for a repurchase, and a mortgage, properly so called (l). The former, if clearly and satisfactorily proved to be a real sale, and not a mere transaction to disguise a loan, will be held valid, although every transaction of this sort is watched with jealousy (w). § 1020. Mortgages may not only be created by the express deeds and contracts of the parties, but they may also be implied in equity from the nature of the transactions between the parties; and then they are termed equitable mortgages. Thus, for instance, it is now (e) Humphreys v. Harrison, 1 Jac. & W. 581 ; King v. Smith, 2 Hare, 239. {/) Gordon v. Selby, 11 Bligh N. S. 351 ; Waters v. Mynn, 14 Jur. 341. (g) Butler's note (1) to Co. Litt. 203b. (h) Langton v. Horton, 5 Beav. 9; Holmes v. Matthews, 9 Moo. P. C. 413. (t) Butler's note (1) to Co. Litt. 204 h ; Howard v. Harris, 1 Vern. 190; Fair- clough v. Swan Brewery Co., [1912] A. C. 565. (fc) Ante, § 1009; Story on Bailm. § 345. (I) Potest ita fiere pignoris datio, hypothecffive (says the Digest), ut si intra certum tempus Don sit aoluta peeunia, jure emptoris possideat rem, justo pretio tunc sesti- mandam ; hoc enim caeu videtur quodammodo conditionalis esse venditio. Dig. Lib. 20, tit. 1, f. 16, § 9. This approaches nearer to a right of pre-emption than to a con- ditional sale. See Orby v. Trigg, 2 Eq. Cas. Abr. 599, pi. 25; s.c. .9 Mod. 2. (to) Butler's note (1) to Co. Litt. 204 h ; Goodman v. Grierson, 2 Ball & Beat. 278; Williams v. Owen, 5 M. & Cr. 303; Perry v. Meadowcroft, 4 Beav. 197- affd 12 L. J. Ch. 104. § 1018—1020.] MORTGAGES. 421 settled that if the debtor deposits his title-deeds to an estate with a creditor, as security for an antecedent debt, or upon a fresh loan of money, it is a valid agreement for a mortgage between the parties, and is not within the operation of the Statute of Frauds (n). This doctrine has sometimes been thought difficult to be maintained either upon the ground of principle or public policy. And although it is firmly established, it was at first received with no small hesitation and dis- approbation, and a disposition was strongly evinced not to enlarge its operation (o). It is generally applied to enforce parol agreements to make a mortgage, or to make a deposit of title-deeds for such a purpose ; but it is strictly confined to an actual, immediate, and bond fide deposit of the title-deeds with the creditor (p), or with some other person over whom the depositor has no control (g) ; as a security, in order to create the lien. It is not necessary that all the title-deeds relating to the property should be deposited, in order to constitute a mortgage by deposit, it is sufficient that material title-deeds have been handed over (r). The mere deposit of title-deeds by a debtor with his creditor presumptively creates an equitable mortgage by deposit (s), but in the case of a claim against the estate of a dead person usually requires to be corroborated (t). As equity looks upon that as done which has been agreed to be done, and prefers substance to form (u), as indeed does the common law (x), handing over title-deeds with a view to the execu- tion of a formal document will create a charge for moneys advanced, unless it appear that it was the intention of the parties that no charge should be created until a formal document was executed (j/). A deposit of deeds may create a charge not only for moneys contemporaneously advanced, but for subsequent advances if those be the conditions agreed upon, where the original advance is made (z), otherwise there must be evidence to displace the objection of the Statute of Frauds (a). Although the charge may be available between the immediate parties the charge may not be effectual against the adverse claim of a party claiming under the mortgagor as a bond fide purchaser for value without notice, and possessed of the legal estate (6). (n) Russell v. Russell, 1 Bro. C. C. 269, decided by Lord Thurlow, and Mr. Belt's note (1). See an excellent statement of the principle by Lord Abinger, C.B., Keys v. Williams, 3 Y. & C. Ex. 55, at p. 69. (o) Ex parte Haigh, 11 Ves. 403; Ex parte Hooper, 19 Ves. 477; 1 Mer. 7. (p) Fenwick v. Potts, 8 De G. M. & G. 506; Ex parte Broderick, 18 Q. B. D. 380, 766. (q) Lloyd v. Attwood, 3 De G. & J. 214. (r) Goodwin v. Waghorn, 4 L. J. N. S. Ch. 172 ; Lacon v. Allen, 3 Drew. 579. (s) Bozon V. Williams, 3 Y. & J. 150. (t) Chapman v. Chapman, 13 Beav. 308. («) Fairclough v. Marshall, 4 Ex. D. 37. (x) Doe v. Davies, 2 M. & W. 502. (y) Edge v. Worthington, 1 Cox. 211; Keys v. Williams, 3 Y. & C. Ex. 55; Lloyd V. Attwood, a De G. & J. 614. (z) Ex parte Longston, 17 Ves. 227; Maugham v. Ridley, 8 L. T. N. S. 309. (a) Ex parte Kensington, 2 Ves. & B. 79. (6) Bozon V. Williams, 3 Y. & J. 150; West v. Reed, 2 Hare, 249; Ratclijfe v. Barnard, L. E. 6 Ch. 652. 422 EQUITY JUaiSPRUDENCB. [CH. XXVI. § 1021. As to the kinds of property which may be mortgaged, it may be stated that, in equity, whatever property, personal or real, is capable of an absolute sale, may be the subject of a mortgage. This is in conformity to the doctrine of the civil law: " Quod emptionem venditionemque recipit, etiam pignorationem recipere potest " (c). Therefore, rights in remainder and reversion, possibilities coupled with an interest, rents, franchises, and choses in action, are capable of being mortgaged. After considerable doubt, it is finally settled that even a mere naked possibility or expectancy, such as that of an heir or of a devisee or legatee, can validly be the subject of a mortgage (d). In this respect the civil law seems to differ from ours ; for a party might by that law mortgage property, to which he had no present title by contract or otherwise (e). § 1022. As to the persons who axe capable of mortgaging an estate, nothing need be said in this place, except so far as regards persons who have qualified interests therein, or are trustees in autre droit, or are clothed with particular powers for limited purposes. And here, very difficult questions may arise, as to the construction of such powers, and the competency of such persons to make mortgages. Thus, for example, if a power is given to trustees to sell for the purpose of raising money, a question may arise, whether they may raise money by way of mort- gage. But the solution of such questions properly belongs to a treatise on powers (/). § 1023. As to the right of redemption. From what has been already stated, it is clear that the equity of redemption is not only a subsisting estate and interest in the land in the hands of the heirs, devisees, assignees, and representatives (strictly so called) of the mortgagor ; but it is also in the hands of any other persons, who have acquired any interest in the lands mortgaged by operation of law, or otherwise, in privity of title (g). Such persons have a clear right to disengage the property from all incumbrances, in order to make their own claims beneficial or available. Hence a tenant for life, a tenant by the curtesy, a jointress, a tenant in dower, in some cases (h), a reversioner, a remain- derman, a judgment creditor, a tenant by elegit, the lord of a manor (c) Dig. Lib. 20, tit. 1, f. 9, § 1. (d) Beckley v. Newland, 2 P. Will. 182; Hobson v. Trevor, 2 P. Will. 191, decided by Lord Macclesfield ; Wright v. Wright, 1 Ves. Sen. 409, decided by Lord Hard- wicke; Wethered v. Wethered, 2 Sim. 183; Lyde v. Mynn, 1 Myl. & K. 683. (e) 1 Domat, B. 3, tit. 1, § 3, art. 6, 20. In Ex parte Arrowsmith, In re Levison, 18 Ch. D. 967, it was held that a mortgage of pew rents made by the vicar of a dis- trict church is void under the Act 13 Bliz. o. 20. But in In re Mirams, [1891] 1 Q. B. 694, it was held that the chaplain of a workhouse could make a valid mortgage of his salary, on the ground that he was not a public officer, and therefore that it was not against public policy to allow him to mortgage. Vide supra, § 294. (/) Sugden on Powers, ch. 9, § 2, p. 437; id. art. 3, pp. 472, 478 (2nd edit.); Mills V. Banks, 3 P. Will. 1, 6. ig) Co. Litt. 208, Butler's note (1). (??,) Co. Litt. 208, Butler's note (1); Swannock v. Lifford, Ambler, 6; Kinnoul v. Money, 3 Swanst. 208 ; Dawson v. Bank of Whitehaven, 6 Ch. D. 218. § 1021 1024. J MORTGAGES. 423 holding by escheat (z), and, indeed, every other person, being an incum- brancer, or having legal or equitable title, or lien therein, may insist upon a redemption of the mortgage, in order to due enforcement of their claims and interests respectively in the land (fc). When any such person does so redeem, he or she becomes substituted to the rights and interests of the original mortgagee in ijhe land, exactly as in the civil law. And in some cases (as we have already seen) a further right of priority by tacking may sometimes be required beyond what the civil law allowed (I). But no person, except a mortgagor, his heirs, or privies in estate, has a right to redeem, or to call for an accoimt, unless, indeed, it can be shown that there is collusion between them and the mortgagee. Hence it is, that a mere annuitant of the mortgagor (who has no interest in the land) has no title to redeem (m). § 1023&. By the Conveyancing Act, 1881, s. 25, it is enacted that any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for eaJe or for redemption in the alternative. And by sub-section 2 it is enacted that in any action, whether for foreclosure or for redemption, or for sale or for the raising and payment in any manner of the mortgage-money, the court, on the request of the mortgagee, or of any person interested either in the mortgage-money, or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage-money, may, if it think fit, direct a sale of the mortgaged property on such terms as it thinks fit, including, if it thinks fit, the deposit in court of a reasonable sum fixed by the court, to meet the expenses of sale and to secure performance of the terms. § 1024. As to the corresponding right of foreclosure, and other remedies for the mortgagee, to secure the due discharge of the mortgage, they naturally flow from the principles already stated. "We have already seen (n.), that, in the civil law, there were two remedies allowed to the mortgagee, a reniedy m rem, and also a remedy in personam, against the mortgagor for the debt. The general remedy in rem was by a sale by the mortgagee of the mortgaged estate, either under a judicial decree, or without such a decree, by his own voluntary act of sale, after a certain fixed notice to the debtor. In either case, the sale, if bond fide and regularly made, was valid to pass the absolute (i) Downe v. Morris, 3 Hare, 394. (k) Tarn v. Turner, 39 Ch. D. 456. (I) Ante, § § 412 to 421; ante, § 1010, and note; Com. Dig. Chancery, 4 A. 10. (m) White v. Parnther, 1 Knapp, P. C. 229; Troughton v. Binkes, 6 Ves. 672. (n) Ante, § 1007. 424 EQUITY JURISPEUDENCE. [CH. XXVI. title to the estate against the mortgagor and his heirs ; and the proceeds were first to be applied to the discharge of the debt ; and the surplus, if any, was to be paid over to the mortgagor or his representatives. This seems to have been the ordinary course in the civil law, in order to obtain satisfaction of the debt out of the mortgaged estate. But in some cases, and especially where a sale could not be made effectual, a decree might be obtained, in the nature of a foreclosure, by which, after certain judicial proceedings, the absolute dominion of the property would be passed to the mortgagee (o). This was probably the origin of the present mode of extinguishing the rights of the mortgagor by a decree of foreclosure in a court of equity. § 1025. The natural course, and certainly the most convenient and beneficial course for the mortgagor, would seem to be, for the court to follow out the civil law rules on this subject; that is to say, primarily and ordinarily, to direct a sale of the mortgaged property, giving the debtor any surplus after discharging the mortgaged debt; and, secondly, to apply the remedy of foreclosure only to special cases, where the former remedy would not apply, or might be inadequate or injurious to the interests of the parties. § 1026. In England a practice widely different prevailed. In the eyes of a court' of equity the property was regarded as of secondary importance to the money of which repayment was secured by the conveyance of the property. The mortgagee was entitled to sue the mortgagor, and failing satisfaction could then have recourse to the land (p), but if he proceeded against the property in the first instance, he was precluded from suing the mortgagor for any balance which the property had failed to satisfy, unless he could restore possession of the property to the mortgagor (g). Speaking generally, a bill for a foreclosure was deemed, in common cases, the exclusive and appro- priate remedy; and the courts of equity refused, except in special cases, to decree a compulsory sale against the will of the mortgagor. These courts, however, departed from this general rule in certain cases : (1) where the estate was deficient to pay the incumbrance (r) ; (2) where the mortgagor was dead, and there was a deficiency of personal assets (s) ; (3) where the mortgage was of a dry reversion (t) ; (4) where the mortgagor died, and the estate descended to' an infant (u) ; (5) where the mortgage was of an advowson (x) ; (6) where the mortgagor became bankrupt, and the mortgagee prayed a sale ; (0) Ante, § § 1008, 1009. (p) Lockhardt v. Hardy, 9 Beav. 349. (g) Perry v. Barker, 8 Ves. 527; 13 Ves. 198; Lockhardt v. Hardy, 9 Beav. 849; Palmer v. Hendrie, 27 Beav. 349; 28 Beav. 341. (r1 Dashioood v. Bithazey, Mos. 196. (s) Daniel v. Skipwith, 2 Bro. C. C. 155. (t) How V. Vigures, 1 Ch. Gas. 32. («) Booth V. Rich, 1 Vern. 295; Mondey v. Mondey, 1 Yes. & B. 228. (x) Mackenzie v. Robinson, 3 Atk. 569. § 1025 1028.] MORTGAGES. 425 (7) or where the mortgagor died, and the mortgagee by his bill, brought against the executor or administrator and the- heir, prayed for the sale of the mortgaged estate, alleging it to be scanty security, and for the payment of any deficiency out of the general estate of the deceased mortgagor (j/) ; (8) where the mortgage is of land, and by the local law is subject to a sale (a) ; such as, for example, in Ireland and America. § 1027. It is difficult to perceive any solid or distinct ground, upon which these exceptions stand, which would not justify the courts of equity in decreeing a sale at all times, when it is prayed for by the mortgagee, or when it would be beneficial to the mortgagor. The inconveniences -of the existing practice of foreclosure are so great, that it has become a common practice to insert in mortgages a power of sale upon default of payment. And, although Lord Eldon, at first, intimated an opinion unfavourable to such a power, as dangerous, it is now firmly established, and now by statute a power of sale unless excluded by the mortgage instrument is implied in every mortgage made by deed (a). § 1027a. By the Chancery Improvement Act (15 & 16 Vict. e. 86) power was given to the Court of Chancery to decree a sale instead of foreclosure on such terms as the court might think fit, and if the court thought fit without previously determining the prioritdes of incumbrances, or giving the usual, or any time, to redeem; and this provision has been repealed, but re-enacted and enlarged by the Conveyancing Act, 1881, s. 25. A sale can under this Act be ordered of the mortgaged property on an interlocutory application made before the trial of the action by any party interested in the equity of redemption (b). § 1028. In actions for the redemption of mortgages, where there are various persons claiming adverse rights and limited interests in the mortgaged estate, it often becomes necessary to direct how assets and securities are to be marshalled, in order to do justice between the differ- ent claimants, and to prevent irreparable mischiefs, as well as to ascer- tain the amounts and proportions in which they should contribute towards the discharge of the incumbrances common to them all. This subject, in many of its most important bearings, has already been examined in other places (c). Similar principles prevailed (as we have seen), to a great extent, in the civil law, in which the right of substi- tution was admitted as well as what was technically called the benefit (y) King v. Smith, 2 Hare, 239. (z) Stileman v. Ashdown, 2 Atk. 477, 608; s.c. Ambler 13, and Mr. Blunt 's note, p. 16, note (b); post, § 1216a. (a) Croft V. Powell, Comyns, 603; Anon., 6 Mad. 16; Gorder v. Morgan, 18 Ves. 344. See Conveyancing Act, 1881, ss. 19, 20, 21; and Conyeyancing Act, 1911, s. 5. (b) WoolUy V. Golman, 21 Oh. D. 169. (c) Ante, § § 499, 358 to 560, 564, 565, 567, 574, 633 to 636. 426 EQUITY JURISPRUDENCE. [CH. XXVI. of discussion, answering, in some measure, to our doctrine of marshalling assets and securities (d). § 1028a. In respect to the time within which a mortgage is redeem- able, it may be remarked, that there is now a statutory limitation of twelve years from the time when the mortgagee has entered into posses- sion, after breach of condition, under his title, by analogy to the ordinary limitation of rights of entry and actions of ejectment. If, therefore, the mortgagee enters into possession in his character of mortgagee, and by virtue of his mortgage alone, he is for twelve years liable to be redeemed ; but if the mortgagor permits the mortgagee to hold the possession for twelve years without accounting, or without admitting that he pos- sesses a mortgage title only, the mortgagor loses his right of redemption, and the title of a mortgagee becomes as absolute in equity, as it previ- ously was in law. In such a case the time begins to run against the mortgagor from the moment the mortgagee takes possession in his char- acter as such ; and if it has once begun to run, and no subsequent admis- sion is made by the mortgagee, it continues to run against all persons claiming under the mortgagor, whatever may be the disabilities to which they may be subjected (dd). But if the mortgagee enters, not in his character of mortgagee only, but as purchaser of the equity of redemp- tion, he must look to the title of his vendor and the validity of the con- veyance which he takes. So that, if the conveyance be such as gives him the estate of a tenant for life only in the equity of redemption, there, as he unites in himself the characters of mortgagor and mort- gagee, he is bound to keep down the interest of the mortgage like any other tenant for life for the benefit of the persons entitled to the re- mainder; and time will not run against the remainderman during the continuance of the life estate (e). § 1028b. Similar considerations will, in many respects, apply to the right of foreclosure of a mortgage. If the mortgagee has suffered the mortgagor to remain in possession for twelve years after the breach of the condition, without any payment of interest, or any admission of the debt, or other duty, the right to bring an action for foreclosure will be statute barred and extinguished (/). § 1029. These may suffice as illustrations of sorhe of the more important doctrines of courts of equity in regard to mortgages of lands, many of which are founded upon principles of justice so universal, as equally to commend themselves to the approbation of a Eoman prsetor (d) Ante, § § 494, 636, 636. (dd) Eeal Property Limitation Act, 1887 (3 & 4 Will. 4, c. 27), s. 28 ; Beal Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 7. An acknowledgment by one of two joint mortgagees and truateea is inoperative. Richardson v. Young, L. E. 6 Ch. 478. Previously the court acted by analogy to the Statutes of Limitation (see Cholmondeley V. Clinton, 2 Jac. & W. 1; 4 Bligh, N. S. 1 ; Raffety v. King, 1 Keen, 601). (e) Raffety v. King, 1 Keen, 601. (/) Eeal Property Limitation Act, 1837 (3 & 4 Will. 4, ^. 28) ; Eeal Property Limi- tation Act, 1874 (37 & 38 Vict. c. 57), s. 9. § 1028a — 1032.] mortgages. 427 and of a modem judge; administering the law of Continental Europe ex sequo et bono. § 1030. Let us now pass to a brief consideration of the doctrines of equity, applicable to mortgages and pledges of personal property. A mortgage of personal property differs from a pledge. The former is a conditional transfer or conveyance of the property itself ; and, if the condition is not duly performed, the whole title vests absolutely at law in the mortgagee, exactly as it does in the case of a mortgage of lands. The latter only passes the possession, or, at most, a special property to the pledgee, with a right of retainer, until the debt is paid, or the other engagement is fulfilled. The difference between them was well stated by a learned judge, in Jones v. Smith (g). " A mortgage is a pledge and more ; for it is an absolute pledge to become an absolute interest, if not redeemed at a certain time. A pledge is a deposit of personal effects, not to be taken back, but on payment of a certain sum, by express stipulation, or the course of trade to be a lien upon them. " § 1031. In mortgages of personal property, although the prescribed condition has not been fulfilled, there exists, as in mortgages of land, an equity of redemption, which may be asserted by the mortgagor, if he brings his action to redeem within a reasonable time {h). There is, however, a difference between mortgages of land and mortgages of per- sonal property, in regard to the rights of the mortgagee, after a breach of the condition. In the latter case, although the mortgagor could obtain foreclosure (i), he could, upon due notice, as a general rule sell the personal property mortgaged, as he could under the civil law; and the title, if the sale be bond fide made, will vest absolutely in the vendee (fe). And it makes no difference, whether the personal property mortgaged consists of goods or of stock or of personal annuities (I). But where certificate of shares or policies of life insurance are deposited with- out a memorandum the remedy is foreclosure and not sale (to). There is no statute applicable to limit the right of the mortgagee in point of time to enforce his remedy by foreclosure where the property mortgaged is personalty (w). § 1032. In cases of pledges, if a time for the redemption be fixed by the contract, still the peldgor may redeem afterwards, if he applies within a reasonable time. But if no time is fixed for the payment, the pledgor has his whole life to redeem, unless he is called upon to redeem ig) 2 Vea. Jun. 378. See also Carter v. Wake, i Ch. D. 605. {h) See Kemp v. Westbrook, 1 Ves. Sen. 278; Charter v. Watson, [1899] 1 Ch. 176. (t) Sadler v. Worley, [1894] 2 Ch. 170. (k) Tucker v. Wilson, 1 P. Will. 261; Lockwood v. Ewer, 9 Mod. 275; s.c. 2 Atk. 303. (l) Slubbs v. Slater, [1910] 1 Ch. 682. That on a mortgage of stocks, the iden- tical stocks must be returned, see Langton v. Waite, 6 Bq. 165, i Ch. 402. (m) Harrold v. Plenty, [1901] 2 Ch. 314. In) London and Midland Bank v. Mitchell, [1899] 2 Ch. 161. 428 EQUITY JURISPRUDENCE. [CH. XXVI; by the pledgee ; and in case of the death of the pledgor without such a demand, his personal representatives may redeem (o). Generally speaking, an action to redeem will not lie on the behalf of the pledgor or his representatives, as his remedy upon a tender is at law. But if any special ground is shown, or there has been an assignment of the pledge, an action will lie (p). § 1033. On the other hand, the pledgee might, according to Glan- ville, at any time bring an action at the common law to compel the pledgor to redeem by a given day ; and, if he did not then redeem, he was for ever foreclosed of his right (g). But the equitable remedy is a sale (?•). It has been also said, that the pledgee may, after the time for redemption has passed, upon due notice given to the pledgor, sell the pledge without a judicial decree of sale (s). § 1034. There is another consideration applicable to cases of mort- gages and pledges of personal property, which does not apply, or at- least is not so cogent, in cases of mortgages of land. The latter pass by formal conveyances; the former may be transferred by the mere change of possession. A subsequent advance made by a mortgagee or a pledgee of chattels would attach by taxiking to the property in favour of such mortgagee, when a like tacking might not be allowed in cases of real estate. Thus, for instance, in the case of a mortgage of real estate, the mortgagee cannot, as we have seen, compel the mortgagor, upon an application to redeem, to pay any debts subsequently con- tracted by him with, or advances made up to him by, the mortgagee, unless such new debts or advances are distinctly agreed to be made upon the security of the mortgaged property (t). But in the case of a mort- gage or pledge of chattels, the general rule, or at least the general pre- sumption, seems the other way. For it has been held, that, in such a case, without any distinct proof of any contract for that purpose, the pledge may be held, until the subsequent debt or advance is paid, as well as the original debt. The ground of this distinction is, that he wiio •seeks equity must do equity; and the plaintiff, seeking the assistance of the court, ought to pay all the moneys due tc the creditor, as it is natural to presume that the pledgee would not have lent the new sum but upon the credit of the pledge, which he had in his hands before (u). The presumption may, indeed, be rebutted by circumstances; but, un- (o) Story on Bailments, § § 308, 345, 346, 348; Glanville, Lib. 10, cap. 6, 8; Vanderzee v. Willis, 3 Bro. C. C. 21. (p) Kemp V. Westbraok, 1 Ves. Sen. 278; Jones v. Smith, 2 Ves. Jun. 872. (g) Glanville, Lib. 10, cap. 8; 1 Cain. Gas. Err. 204, 205. (r) Carter v. Wake, 4 Ch. D. 605. («) Pothonier v. Dawson, Holt N. P. 383; Nicholson v. Hooper, 4 Myl. & Cr. 179; Frgot V. Cubley, 15 C. B. N. S. 701. (t) Ante, § § 417, 418; Matthews v. Cartwright, 2 Atk. 347; Brace v. Duchess of Marlborough, 2 P. Will. 491, 492, 494; Shepherd v. Titley, 2 Atk. 352, 354; Anon., 2 Ves. 662; Lowthian v. Hasel, 3 Bro. C. C. 162; Jones v. Smith, 2 Ves. Jun. 376, 378; Ex parte Knott, 11 Ves. 617. (u) Demaindray v. Metcalf, Prec. Ch. 419; Vanderzee v. Willis, 3 Bro. C. C. 21 § 1033— 1035a.] mortgages. 42& less it is rebutted, it will generally, in favour of the lien, stand for verity against the pledgor himself, although not against his creditors, or against subsequent purchasers (a;). § 1035. It is not improbable, that this doctrine, respecting mort- gages and pledges of chattels being held as security for subsequent debts- and advances, was borrowed from the civil law, although it is appUed with some modifications in the equity jurisprudence of England. In the civil law (as we have already seen), the mortgagor or pledgor could not redeem, without discharging all the other debts which he then owed to the pledgee ; with the saving, however, in favour of the rights of other creditors and purchasers (y). § 1035a. Where property which can only reach the hands of the beneficiary in the shape of money vested in a trustee, and the beneficial interest is mortgaged by the beneficial owner, the mortgagee can acquire a better title than his assignor conveyed to him by priority of notice («). This doctrine is apphcable to absolute assignments as well as to assign- ments by way of mortgage and the general consideration of the subject will be discussed in the next chapter. {x) Demaindray v. Metcalf, Prec. Ch. 419. (,y) Ante, § 1010, and note; Cod. Lib. 8, tit. 27, 1. 1. (z) Dearie v Hall, Loveridge v. Cooper, 3 Euss. 1. 430 EQUITY J0EISPRUDENCB. [CH. XXVII. CHAPTER XXVII. ASSIGNMENTS. § 1036. In the next place, let us pass to the consideration of Assign- ments of real and personal property upon special trusts. The most important and extensive of this class of trusts is that which embraces general assignments by insolvents and other debtors for the discharge of their debts, sometimes with priorities and preferences of particular creditors, and sometimes with an equality of rights among all the credi- tors. The question of the validity of such conveyances, and under what circumstances they are deemed fraudulent, or bona fide, has been already, in some measure, considered under the head of constructive fraud (a). In general, it may be stated, that such priorities and prefer- ences are not deemed fraudulent or inequitable ; and even a stipulation on the part of the debtor, in such an assignment, that the creditors taking under it shall release and discharge him from all their further claims beyond the property assigned, will (it seems) be valid, and bind- ing on such creditors. § 1036a. In order to entitle the creditors, named in a general assignment for the benefit of creditors, to take under it, it is not neces- sary that they should be formal parties thereto (b). It will be sufficient, if they have notice of the trust in their favour and they assent to it; and, if there be no stipulation for a release, or any other condition in it, which may not be for their benefit, their assent will be presumed, until the contrary appears (c). Creditors' trust deeds are now subject to the provisions of the Deeds of Arrangement Act, 1914 (4 & 5 Geo. V. c. 47). They must be registered with the Eegistrar of Bills of Sale within seven clear days after the first execution thereof by the debtor or any creditor, or if first executed abroad within seven clear days after the time at which it would in the ordinary course of post, arrive in England, if posted within one week after the execution thereof. And it must receive the assent in writing of a majority in number and value of the creditors of the debtor, the only penalty on the creditor being that his neglect to express his dissent in writing after receiving notice in writing of the (a) Ante, § § 349, 369, 370, 378, 379; Estwiek v. Caillaud, 6 T. B. 420; Holbird v. Anderson, 5 T. E. 235; Meux v. Howell, 4 East 1; Rex v. Watson, 3, Price 6; Small V. Marwood, 9 B. & C. 300; Pickstock v. Lyster, 3 M. & S. 371. ib) Garrard v Lord Lauderdale, 3 Sim. 1; 2 Euss. & M. 451; Acton v. Wood- gate, 2 Myl. & K. 492. (c) In re Baber's Trust, L. E. 10 Eq. 554 ; post, § 1045. § 1036—1039.] ASSIGNMENTS. 431 execution of the instrument, is to preclude him from avaihng himself of the assignment as an available act of bankruptcy. § 1037. The trusts, arising under general assignments for the benefit of creditors, were, in a peculiar sense, the objects of equity jurisdiction. But the Bankruptcy Court is now charged with the judicial administra- tion of the property comprised in these assignments by the Deeds of Arrangement Act, 1914 ( 4 & 5 Geo. v. c. 47), s. 23. And this subject generally has since the Bankruptcy Act, 1914 (4 & 5 Geo. v. c. 59), lost much of its importance considered as a point of equity jurisdiction, for by s. 1 (d) of that Act, it is provided that the following {inter alia) should be deemed an act of bankruptcy, viz., that the debtor has in England or elsewhere made a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally. § 1039. In regard to particular assignments upon special trusts, there is little to be said which is not equally applicable to all cases of jurisdiction exercised over general trusts. But courts of equity take notice of assignments of property, and enforce the rights growing out of the same, in many cases, where such assignments are not recognized at law as valid or effectual to pass titles. It was a well-known rule of the common law, that no possibility, right, title, or thing in action could be granted to third persons. For it was thought that a different rule would be the occasion of muliplying contentions and suits, as it would, in effect, be transferring a lawsuit to a mere stranger. Hence a debt, or other chose in action, could not be transferred by assignment, except in case of the king, to whom and by whom, at the common law, an assignment of a chose in action could always be made ; for the policy of the rule was not supposed to apply to the king (e). So strictly was this doctrine construed, that it was even doubted whether an annuity was assignable, although assigns were mentioned in the deed creating it (/). And at law, with the exception of negotiable instruments, and some few other securities, this still continued to be the general rule, unless the debtor assented to the transfer; but if he did assent, then the right of the assignee was complete at law, so that he might maintain a direct action against the debtor upon the implied promise to pay him the same, which resulted from such assent (g). But by paragraph 5 of section 25 of the Judicature Act, 1873, it is provided that any absolute assignment in writing (not purporting to be by way of charge only) of any debt or other legal chose in action of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive such debt or chose in action, shall be, and be deemed to have been effectual in law (subject (d) See Hamilton v. Houghton, 2 Bligh 169. (e) Lampet's Case, 10 Co. 48a; Prosser v. Edmonds, 1 Y. & C. Ex. 481; Co. Litt. 2326, Butler's note (1); Com. Dig. Chancery, 2 H; Assignment, D. (/) Co. Jjitt. 144b, and Hargrave's note (1); Co. Litt. 232b, Butler's note (1). (g) Crowfoot v. Gurney, 9 Bing. 372; Hutchinson v. Heyworth, 9 A. & E. 375. 432 EQUITY JURISPRUDENCE. [CH. XXVII. to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same without the concurrence of the assignor (h). § 1040. But courts of equity give effect to assignments of interests held in trust, and whether the interests are contingent or in expectancy, including so remote an interest as a spes sucoessionis, whether they are in real or in personal estate, as well as to assignments of choses in action (i). Every such assignment is considered in equity, as in its nature amounting to a declaration of trust and to an agreement to permit the assignee to make use of the name of the assignor, in order to recover the debt, or to reduce the property into possession (k). Contingent rights and interests were not ordinarily assignable at law ; and yet they might sometimes be assigned at law if coupled with some present interest (l). So, at law, such rights and interests might pass by way of estoppel, by fine or recovery but not otherwise (■m). And by the 8 & 9 Vict. c. 106, s. 6, a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure may be disposed of by deed. But the reach of this doc- trine at law falls far short of that now entertained in equity. To make an assignment valid at law, the thing which is the subject of it must have actual or potential existence at the time of the grant or assignment (o). But courts of equity will support assignments not only of choses in action, and of contingent interests and expectancies, but also of things which have no present actual or potential existence, but rest in mere possibility ; as for example " added or substituted machinery implements and things " fixed or placed in or about a mill, or future book debts (p). And the proprietary rights of the parties when the property becomes tangible, are fixed by reference to the antecedent contract, for equity looks upon that as done which has been agreed to be done (g). (h) As to the effect of this, see Brioe v. Bannister, 3 Q. B. D. 569; Buck v. Rob- son, 3 Q. B. D. 686. It should be observed that whereas a verbal assignment is good in equity, under this Act writing is necessary. (») Fearne on Cont. Eem. by Butler, 548, 660 (7th edit.); Bum v. Carvalho, i Myl. & Cr. 690; In re Lind, Industrials Finance Syndicate, Ltd. v. Lind, [1915] 3 Ch. 345. {k) Co. Litt. 232 b, Butler's note; Durham Bros. v. Robertson, [1898] 1 Q. B. 765. (;) Shep. Touch. 238, 239, 322; Arthur v. Bokenham, 11 Mod. 162; Com. Dig. Assignment, A., c. 3. (to) Doe d. Christmas v. Oliver, 10 B. & Cress, 181; Pearne on Cont. Bern. ch. 6, § v., p. 365 (o) See Lunn v. Thornton, 1 C. B. 379; Fetch v. Tutin, 15 M. & W. 110. (p) Holroyd v. Marshall, 10 H. L. C. 191; Tailby v. Official Receiver, 13 App. Cas. 523. (q) In re Lind, Industrials Finance Synd. v Lind, [1915] 1 Ch. 744; [1915] 2 Ch. 346. § 1040, 1040a.] ASSIGNMENTS. 433 § 1040a. In the civil law, and in the jurisprudence of the modern commercial nations of continental Europe, there does not seem to have been any foundation for such an objection to the assignment of debts ; for all debts were from an early period allowed to be assigned, if not formally, at least in legal effect; and for the most part, if not in all cases, they may now be sued for in the name of the assignee (r). The Code of Justinian says, " Nominis autem venditio " (distinguishing be- tween the sale of a debt and the delegation or substitution of one debt for another or for the same debt) " et ignorante, vel invito eo, adversus quem actiones mandantur, oontrahi solet " (s). And Heineccius, after remarking that bills of exchange are for the most part drawn payable to a person or his order, says, that although this form be omitted, yet an indorsement thereof may have full effect, if the laws of the parti- cular country respecting exchange do not specially prohibit it; because an assignment thereof may be made without the knowledge and against the will of the debtor ; and he refers to the passage in the Code in proof of it (t). But he adds (which is certainly not our law), that if the bill be drawn payable to the order of Titius, it is not to be paid to Titius, but to his indorsee. " Tunc enim Titio solvi non potest, sed ejus indor- satario " (w). The same general doctrine as to the assignability of bills of exchange, payable to a party, but not to his order, is affirmed in the ordinajice of France of 1673 (art. 12), as soon as the transfer is made known to the drawee or debtor (cc). Indeed, the like doctrine prevails now in France, not only in cases of bills of exchange, but of contracts generally ; so that the assignee may now sue on them in his own name after the assignment, subject, however, to all the equities subsisting between the parties before and at the time when the debtor has notice of the assignment (y). (r) Pothier has stated the old French law upon this subject (which does not in substance probably differ from that of the other modern States of continental Europe) in very explicit terms, in his treatise on the Contract of Sale, of which an excellent translation has been made by L. S. Gushing, Esq. See also Troplong des Privil, and Hypoth. Tome 1, un 340 to 343; Troplong de la Vente un 879 to 882, un 906, 918; Code Civ. Arts. 1689 to 1692, 2112. («) Cod. Lib. 8, tit. 42, 1. 1; 1 Domat, B. i, tit. 4, § § 3, 4. (t) Heinecc. de Camb. cap. 3, § 8; id. cap. 4, § § 21 to 26. Heineccius, in a note, says, that in Pranoonia and Leipsic, no assignment is of any validity, if the formulary of its being payable to order is omitted. The present law of Prance is the same, so far as the general negotiability of bilk is concerned, and to give them circulation, un- affected by any equities between the payee and the debtor. Pardessus, Droit Comm., Tom. 2, art. 339, p. 360; Delvincourt, Instit. Droit Comm., Tom. 1, Liv. 1, tit. 7, Pt. 2, pp. 114, 115. Delvincourt says that the right of a simple bill (not payable to order) is transferable only by an act of transfer made known to the debtor. See also Merlin, Repert. Lettre et Billet de Change, § § 4, 8, pp. 196, 252 (edit. 1827). («) Heinecc. de Camb. cap. 2, § 8. (x) Juosse, sur I'Ordon. 1673, art. 30, p. 123. See also Story on Bills of Exchange, § 19 ; Greenleaf on Evid. § § 172, 190. iy) Pardessus, Droit Comm., Tom. 2, art. 313; Troplong de Priv. et Hypoth., Tom. 1 ; Troplong de la "Vente, nn. 879 to 913 ; Code Civil of France, art. 1689 to 1693 ; id. art. 2112; id. art. 1295; Locre, Esprit du Code de Comm., Tom. 1, Liv. 1, tit. 8, p. 342. B.J. 28 434 EQUITY JUEISPEUDENCE. [CH. XXVI. § 1040b. There are, however, certain cases, in which assignments will not be upheld either in equity or at law, as being against the prin- ciples of public policy. Thus, for example, the full pay, or half-pay of an officer in the army or navy, is not, upon principles of public policy, assignable, either by the party, or by operation of law («). For officers, as well upon half-pay as full pay, are liable at any time to be called into service ; and it has been well remarked, that emoluments of this sort are granted for the dignity of the state, and for the decent support of those persons who are engaged in the service of it. It would, therefore, be highly impolitic to permit them to be assigned; for persons, who are liable to be called out in the service of their country ought not to be taken from a state of poverty. And it has been added, that it might as well be contended, that the salaries of the judges, which are granted to support the dignity of the State and the administration of justice, may be assigned (a). The fact, that half-pay is intended in part as a reward for past services, does not, in any respect, change the application of the principle; for it is also designed to enable the party to be always in readiness to return to the public service, if he shall at any time oe required so to do (b). The same doctrine has been applied to the civil service, where the Government may command the future services of the party (c). But a retiring allowance or gratuity, where the party cannot be called upon to perform further duties, or receives the amount as a reward for past services may be aliened (d). In spite of the doubt expressed in previous editions, there seems no reason why an annuity payable during the pleasure of the Crown should not be assignable so long as it is continued. Obviously the terms of the grant preclude any remedy against the Crown or its agents, but the grantee may be restrained from receiving it (e). Alimony has been held to be non- assignable, but upon a different principle, namely, that it is not in the nature of property, but an allowance to provide for the daily main- tenance of the wife (/). § 1040c. An assignment of a bare right to bring aa action for a fraud, committed upon the assignor, wiU be held void, as contrary* to public poUcy, and as savouring of the character of champerty, of which we shall presently speak (gr). So, a mere right of action for a breach of trust for the like reason, is not assignable (h). On the other hand a con- veyance of property carries with it the full proprietary right of the («) Stone V. LidderdaXe, 2 Anstr. 533. (a) Davis v. Duke of Marlborough, 1 Swanst. at p. 79. (b) Stone v. Lidderdale, 2 Anst. 533. (c) Hill V. Paul, 8 Ch. & P. 296; Wells v. Foster, 8 M. & W. 149. (d) Spooner v. Payne, 1 De G. M. & G. 202; Knight v. Bulkeley, 27 L. J. Ch. 692; 15 Jur. N. S. 817; Willcock v. Terrell, 3 Ex. D. 323. (e) Knight v. Bulkeley, 27 L. J. Ch. 692; 15 Jur. N. S. 817. (/) In re Robinson, 27 Ch. D. 160. (g) Prosser v. Edmonds, 1 Y. & C. Ex. 481; post, § 1048. (h) Hill v. Boyle, L. E. i Eq. 260. § 1040b — 1045.] ASSIGNMENTS. 435 grantor to perfect his title even if it involves the bringing of an action (i). But the purchase must be bond fide, and not a mere cloak to purchase a right of action (fc). The trustee in bankruptcy has a statutory right to sell a res litigiosa (l). § 1041. The distinction between the operation of assignments at law, and the operation of them in equity, may be very familiarly shown by a few illustrations, derived from oases of bailments and consign- ments. In the common case, where money or other property is deliv- ered by a bailor to B. for the use of C, or to be delivered to C, the acceptance of the bailment amounts to an express promise from the bailee to the bailor, to deliver or pay over the property accordingly. But it was settled that the person, for whose use the money or property is so delivered could not maintain an action at law therefore against the bailee, without some further act or assent on the part of the bailee, establishing a privity between them (m). But it is certain that a remedy would lie in equity under the like circumstances (w). It may be added that no writing is necessary to the validity of an equitable assign- ment (o). Writing is indeed necessary if the assignment is to operate under par. 6 of section 25 of the Judicature Act, 1873, entitling the assignee to sue in his name, without making the assignor a party. An assignment which fails to comply with the formalities of the statute may yet be operative under the general rule ; but here the assignor must be a party to the proceedings (p). § 1045. There is another class of cases, namely, those where the question may arise of an absolute appropriation of the proceeds of an assignment or remittance, directed to be paid to particular creditors, in which courts of equity, like courts of law, will not deem the appro- priation to the creditors absolute, until the creditors have notice thereof, and have assented thereto. For, until that time, the mandate or direc- tion may be revoked or withdrawn, and some other appropriation made by the consignor or remitter of the proceeds (q). But if, upon notice, the creditors should assent thereto, and no intermediate revocation (t) Dickinson v. Burrell, L. E. 1 Eq. 337 ; Fitzroy v. Cave, [1905] 2 E. B. 364. (fc) De Hoghton v. Money, L. E. 2 Ch. 164. (l) Secar v. Lawson, 15 Ch. D. 426; Gury v. Churchill, 40 Ch. D. 481, ' (to) Williams v. Everett, 14 East, 582. (m) Ex parte South, 3 Swanst. 392; Burn v. Carvalho, 4 M. & Cr. 690, where the plaintiff having failed at law (4 B. & Ad. 382 ; 1 A. & E. 888) succeeded in equity. It is really " pedantry to refer to authorities " — per Lord Macnaghten, William Brandt's Sons d Co. V. Dunlop Rubber Co., [1905] A. C. 454. (o) Gurnell v. Gardner, 4 Giff. 626. (p) Durham Brothers v. Robertson, [1898] 1 Q. B. 765 ; William Brandt's Sons i Co. v. Dunlop Rubber Co., [1906] A. C. 454. (g) Scott v. Porcher, 3 Meriv. 662 ; Ex parte Hall, 10 Ch. D. 615 ; Wallwyn v. Coutts, 3 Meriv. 707, 708; s.o. 3 Sim. 14; Garrard v. Lord Lauderdale, 4 Euss. & Myl. 451; Gaskell v. Gaskell, 2 Y. & Jerv. 502; Maber v. Hobbs, 2 Y. & Jerv. 327; Clegg v. Reas, L. E. 7 Ch. 71; ante, § § 972, 1086a. Acquiescence, e.g., refraining to sue, as stipulated in deed, may have the same effect as direct assent. In re Baber's ■Trusts. L. E. 10 Bq. 554. 436 EQUITY JURISPRUDENCE. [CH. XXVII. should have been made by the assignor or remitter; there, in equity, the assignee or mandatary will be held bound to the creditors, and they may maintain a bill to enforce a due perfoirmance of the duty. For, although the assignee or mandatary has a perfect right, in such a case, to refuse the trust; yet he cannot act under the mandate, and receive the money, goods or proceeds, and hold them discharged from the duty thus created. The property is in his hands, clothed with the duty, by the act of parties, competent to create and establish it; and his assent is not, in strictness, necessary to give validity to it in equity (r). § 1047. The assignee takes the property assigned, subject to all equities existing between the assignor and his debtor or trustee at the date of the assignment (s) ; unless there is a contract varying the general rule (i). But the assignee may obtain a better title than his assignor possessed. The doctrine is only applicable where there is a debt or where the fund " can only reach the hands of the beneficiary or assignor in the shape of money" (u). It has no application where the property conveyanced is land (w). The rule, it cannot properly be called a prin- ciple, established by Dearie v. Hall, and Loveridge v. Cooper (x), is that when there are successive conveyances to separate parties without notice of the title of a prior assignee {y), the priority of the assignees inter se is regulated by the date at which the debtor or trustee (2) re- ceives notice of the assignee's title. It seems clear that the rule in Dearie v. Hall and Loveridge v. Cooper cannot be questioned at the present day, but the grounds upon which the decision was based have since met with scant courtesy (a). It becomes necessary, therefore, to examine the working of the rule. As between assignor and assignee the title of the assignee is complete by the assignment, be it a trust fund (b) or a debt (c), and whether voluntary or for value (d). The trustee or debtor may deal with the assignor on the footing that he is entitled to the fund or debt, until they receive notice of an actual assignment (e), (r) Ex parte South, 3 Swanst. 392; Bum v. Carvalho, 4 M. & Cr. 690; William Brandt's Sons <& Go. v. Dunlof Rubber Co., [1905] A. C. 454. (s) GouHenay v. Williams, 3 Hare 539, affd. 15 L. J. Ch. 204. (t) In re Goy & Co., Ltd., Farmer v. Goy S Go., Ltd., [1900] 2 Ch. 149. («) Per Lord Macnaghten, Ward v. Duncombe, [1893] A. C. 369, 390; Foster v. Cockerell, 3 CI. & F. 456; In re Hughes' Trusts, 2 H. & M. 89 ; Lloyds' Bank v. Pear- son, [1901] 1 Ch. 865. (w) In re Richards, Humber v. Richards, 45 Ch. D. 589; Hopkins v. Hemsworth,. [1898] 2 Ch. 347; Taylor \. London and County Bank, [1901] 2 Ch. 231. (re) Dearie v. Hall, Loveridge v. Cooper, 3 Euss. 1. iy) Newman v. Newman, 28 Ch. D. 674 ; In re Holmes, 29 Ch. D. 786. (2) Lloyd V. Banks, L. E. 8 Ch. 988. (a) Ward v. Buncombe, [1893] A. C. 369. lb) Burn v. Carvalho, 4 M. & Cr, 690. (c) Gorringe v. Irwell India Rubber and Gutta Percha Works, 34 Ch. D. 128. (d) Hughes v. Walmesley, 12 Jur. 834)!.; In re Way's Trusts, 2 De G. J. & S. 365. (e) Leslie v. Baillie, 2 Y. & C. Ch. 91; Stocks v. Dobson, i De G-. M. & G. 11;; Phipps V. Lovegrove, L. E. 16 Bq. 80; Shaw v. Foster, L. E. 5 H. L. 321. § 1047—1049.] ASSIGNMENTS. 437 but the assignor cannot defeat his own grant and is accountable for any sums of money he may receive (/). In Dearie v. Hall and Loveridge v. Cooper, one of the grounds of the decision was that the priority was a reward of superior diligence, but it has since been held that if a trustee acquired his knowledge of the transaction from a perusal of a newspaper it was sufficient {g), and it is difficult to distinguish the case of a debtor. A clear verbal notice is sufficient, but the evidence in the ease of a con- flict as to priorities is to be scanned jealously (h). § 1047a.. Before the notice can be effectually given, there must be an actual debt, or the fund must be in the hands of trustees or effectually transferred to them (i). Notice to one of several trustees (not being himself an assignor) (k) is effective so long as that trustee remains a trustee of the fund (I) ; but if he dies the priority thus gained will be dis- placed in favour of a subsequent assignee if he gives prior notice of his assignment to the then existing trustees (m). A priority once acquired by notice to all the trustees remains notwithstanding their retirement or death, and the appointment of new trustees (n-). § 1048. It is principally in cases of assignments that courts of equity have occasion to examine into the doctrine of champerty and maintenance ; and therefore it may be here proper to glance at this im- portant topic. Champerty {cam-pi partitio) is properly a bargain be- tween a plaintiff or a defendant in a cause, caynpum partire, to divide the land or other matter sued for between them, if they prevail at law ; whereupon the champertor is to carry on the party's suit at his own expense (o). Maintenance (of which champerty is a species) is properly an officious intermeddling in a suit, which no way belongs to one, by maintaining or assisting either party with money or otherwise, to prose- cute or defend it (p). Each of these is deemed an offence against public justice, and punishable accordingly, both at the common law and by statute, as tending to keep alive strife and contention, and to pervert the remedial process of the law into an engine of oppression. § 1049. It was chiefly upon the ground of champerty and mainten- ance, that the courts of common law refused to recognize the assign- ment of debts, and other rights of action and securities; although (as (/) In re Patrick, Bills v. Tatham, [1891] 1 Ch. 82. (3) Lloyd V. Banks, L. E. 3 Ch. 488. (h) In re Tichener, 35 B«av. 317. Choses in action other than trade debts " due or growing due " are no longer within the order and disposition clause : Bankruptcy Act, 1914 (4 & 5 Geo. V. 0. 59), 3. 38 (c). (i) Buller v. Plunket, 1 J. & H. 441; Stephens v. Green, [1895] 2 Ch. 148; in re Dallas, [1904] 2 Ch. 385. (k) Browne V. Savage, 4 Drew. 635; In re Dallas, [1904] 2 Ch. 385. (l) Meux V. Bell, 1 Hare 73; Ward v. Duncombe, [1893] A. C. 369. (m) Timson v. Bamsbottom, 2 Keen, 35; In re Phillips' Trusts, [1903] 1 Ch. 183. (n) In re Wasdale, Brittin v. Partridge, [1899] 1 Ch. 163. (o) Sprye v. Porter, 7 E. & B. 58; Bees v. De Bernardy, [1896] 2 Ch. 437. (p) Harris v.Brisco, 17 Q. B. D. 504; Neville v. London " Express " Newspaper, Ltd., [1919] A. C. 368. 438 EQUITY JUHISPEUDBNCE. [CH. XXVII. we have seen) the same doctrine does not prevail in equity. But still, courts of equity are ever solicitous to enforce all the principles of law respecting champerty and maintenance ; and they will not, in any case, uphold an assignment, which involves any such offensive ingredients {qi. Thus, for instance, courts of equity, equally with courts of law, will repudiate any agreement or assignment made between a creditor and a third person, to maintain a suit of the former, so that they may share the profits resulting from the success of the suit; for it will be a clear case of champerty (r). So, an assignment of a part of the subject of a pending prize suit, to a navy agent, in consideration of his undertaking to indemnify the assignor against the costs and charges of the suit, will be held void ; for it amounts to champerty, in being the unlawful main- tenance of a suit, in consideration of a bargain for part of a thing, or some profit out of it (s). The exceptions to the general rule are of certain peculiar relations recognized by the law ; such as that of father and son; or of an heir-apparent; of the husband of an heiress; or of master and servant ; or motives of charity (t) ; and the like. § 1050. But consistently with these principles, a party may pur- chase, by assignment, the whole interest of another in a contract, or security, or other property which is in litigation, provided there be nothing in the contract which savours of maintenance ; that is, provided he does not undertake to pay any costs, or make any advances beyond the mere support of the exclusive interest, which he has so acquired (u). Thus, for example, it is extremely clear, that an equitable interest, under a contract of purchase of real estate, may be the subject of sale. A person, claiming under such an original contract, in case he afterwards sells his purchase to sub-purchasers, becomes, in equity, a trustee for the persons to whom he so contrapts to sell. Without entering into any covenant for that purpose, such sub-purchasers are obliged to indemnify him from the consequence of all acts, which he must execute for their benefit. And a court of equity not only allows, but actually compels, him to permit them to use his name in all proceedings for obtaining the benefit of their contract. Such indemnity and such proceedings, under such circumstances, are not deemed maintenance. So if there be a trust estate in lands, either actual or constructive, which, however, is controverted by the trustee, the cestui que trust (or beneficiary) may, nevertheless, lawfully assign it; and the assignee may, in equity, en- force his rights to the same, if the assignment does not, in the sense above stated, savour of maintenance. iq) Reynell v. Sprye, 1 De G. M. & G. 660; Rees v. De Bernardy, [1896] 2 Ch. 437. (r) Hartley v. Russell, 2 Sim. & St. 244. (s) Stevens v. Bagwell, 16 Ves. 156. (t) 4 Black. Comm. 135; Harm v. Briscoe, 17 Q. B. D. 504. (a) Harrington v. Long, 2 M. & K. 590; Hunter v. Daniel, i Hare, 420; Fitzroy V. Gave, [1905] 2 K. B. 364. § 1050—1053.] ASSIGNMENTS. 439 § 1051. This doctrine has been fully recognized by Lord Eldon. " If G. and W. (the original vendees), during the pendency of the suit in the Exchequer, sold the estate to A. B., he would have a right in a court of equity to insist, as purchaser of the estate, that they should convey to him the fee-simple, or such title aiS they had. So insisting, he claims no more than they would be entitled to claim, if they had not sold their equitable interest. Haying sold, they become trustees of that equitable interest ; their vendee acquires the same right which they had, that is, a right to call on the original vendors indemnifying them against all costs and charges for the use of their names, to enable them to execute the sub-contrac5t, by which they have undertaken to transfer their benefits under the primary contract. If I were to suffer this doctrine to be shaken by any reference to the law of champerty or maintenance, I should violate the established habits of this court, which has always given to parties, entering into, a sub-contract, the benefit which the vendors derived from the primary contract " (x). § 1052. Upon the like grounds, where a creditor, who had insti- tuted proceedings at law and in equity against his debtor, entered into an agreement with the debtor to abandon those proceedings, and give up his securities, in consideration of the debtor's giving him a lien on other securities in the hands of another creditor, with authority to sue the latter, and agreeing to use his best endeavours to assist in adjusting his accounts with the holder, and in recovering those securities ; it was held, that the agreement was lawful, and not main- tenance; for there was no bargain, or colour of bargain, that the assignee should maintain the suit, instituted in the assignor's name, against such creditor, having the other securities, in consideration of sharing in the profits to be derived from that suit. The agreement was, in effect, nothing more thaji an assignment of the equity of redemption of the assignor in the securities held by such creditor in exchange for the prior securities held by the assignee. The authority, given to the assignee to sue such creditor, was the common legal provision in the case of an assignment of a debt or security (y). § 1053. Where, by articles of agreement for the sale of an estate, it was agreed between the vendor and purchaser, that the purchaser, bearing all the expenses of certain suits, commenced by the vendor against an occupier for by-gone rents, should have the rents so to be recovered, and also any money recovered for dilapidations, and that the purchaser, at his own expense, and indemnifying the vendor, might use the name of the vendor, in any action he might tiiink fit to com- mence therefor; it was held at the common law, that the agreement was not void for maintenance or champerty («). (x) Per Lord Eldon, in Wood v. Griffith, 1 Swanst. 56. iy) Hartley v. Russell, 2 Sim. & Stu. 244. (z) Williams v. Protheroe, 5 Bing. 309; s.c. 3 Y. & Jerv. 129. 440 EQUITY JCRISPRDDKNCE. [CH. XXVII. § 1054. Indeed, there is no principle in equity, which prevents a creditor from assigning his interest in a debt after the institution of a suit therefor as being within the statutes against champerty and maintenance. Such an assignment gives the person, to whom it is made, a right to institute a new proceeding, in order to obtain the benefit of the assignment. And the proper mode of doing this was by the assignee's filing a supplemental bill (if the suit is still pending), making the assignor and the debtor defendants. But, if the assign- ment contains an agreernent, that the assignee is to indemnify the assignor, not only against all costs incurred, and to be incurred, with reference to the subject-matter assigned, but also against all costs to be incurred in that suit for collateral objects and claims, totally distinct from the subject-matter assigned, it will be held void for maintenance {a). § 1055. So strongly are courts of equity inclined to uphold assign- ments, when bond fide made, that even the assignment of freight to be earned in future, is good in equity, and will be enforced against the party from whom it becomes due (b). So an assignment of a whale- ship, by way of mortgage, and of all oil, head-matter, and other cargo caught or brought home on a whaling voyage, will amount to a good assignment of the future cargo of oil and head-matter obtained in the voyage (c). And, whenever an assignment is made of a debt, or other personal property, although it is charged on land, as, for example, a pecuniary legacy charged on land, the assignment will be treated as an assignment of money only, and, therefore, it will not be affected by the policy of the registration laws, by which conveyances of the interests in the land are required to be registered (d). § 1056. In courts of law, these principles of courts of equity were, even before the Judicature Act, 1873, acted on to a limited extent. But still, whenever a bond or other debt was assigned, and it was necessary to sue at law for the recovery thereof, it had to be done in the name of the original creditor, the person to whom it was trans- ferred being treated rather as an attorney than as an assignee, although his rights were recognized, and protected, in some measure, at law, against the frauds of the assignor (e). § 1057. In equity, on the other hand, the assignee might always sue on such an assignment in his own name, and enforce payment of the debt directly against the debtor, making him, as well as the (a) Harrington v. Long, 2 Myl. & K. 590. The report in this case is somewhat obscure, and does not exactly present the true ground of the decision. But the argu- ment of the counsel for the defendant, in pages 558, 599, shows it. Provision for assignment of interest is now made by Rules of the Supreme Court, 1883, Order 17. (b) Douglas v. Russell, 4 Sim. 524; 1 Myl. and K. 488. (c) Langton v. Horton, 1 Hare 549, 556, 557 ; b.c. 5 Beav. 9. (d) Malcolm v. Charlesioorth , 1 Keen 63. (e) Ex parte South, 3 Swanst. 398 ; Durham Brothers v. Robertson, [1898] 1 Q. B. 765 ; Barker v. Richardson, 1 Y. & J. 362. § 1054 1057.] ASSIGNMENTS. 441 assignor (if necessary), a party to the action. The assignment of a debt does not, in equity, require even the assent of the debtor, in any manner, thereto; although, to make it effectual for all purposes, it may be important to give notice of the assignment to him ; since, until notice, he is not aflected with the trust created thereby, and the rights of third persons may intervene to the prejudice of the assignee. The ground of this doctrine is, that the creditor has, in equity, a right to dispose of his own property as he may choose ; and to require the debt to be paid to such person as he may direct, without any consultation with the debtor, who holds the debt, subject to the rights of the creditor (/). (/) Hammond v. Messenger, 9 Sim. 327. 442 EQUITY JURISPJIUDENCE. [CH. XXVIII. CHAPTER XXVIII. WILLS AND TESTAMENTS. § 1058. In the next place, let us pass to the oonsideration of express trusts of real and personal property, created by Last Wills and Testaments. These are so various in their nature and objects, and so extensive in their reach, that it would be impracticable to comprehend them within the plan of these commentaries. They are most usually created for the security of the rights and interests of infants, of femes covert, of children, and of other relations; or for the payment of debts, legacies, and portions, or for the sale or piirchase of real estate for the benefit of heirs, or others having claims upon the testator; or for objects of general or special charity. Many trusts, also, arise under wills, by construction and implication of law. But in whatever way, or for whatever purpose, or in whatever form, trusts arise under wills, they are exclusively within the jurisdiction of courts of equity. Indeed, so many arrangements, modifications, restraints, and intermediate directions are indispensable to the due administration of these trusts, that, without the interposition of courts of equity, there would, in many cases, be a total failure of justice (a). § 1059. The truth of this remark will at once be seen by the statement of a very few plain cases, to illustrate it. In the first place, trusts are often created by will, without the designation of any trustee who is to execute them ; or it may be matter of doubt, upon the terms of the will, who is the proper party. Now it is a settled' principle in courts of equity, as has been already stated, that a trust shall never fail for the want of a proper trustee (b); and, if no other is designated, courts of equity will take upon themselves the due execution of the trust. § 1060. Thus, for example, if a testator should order his real estate, or any part thereof, to be sold for the payment of his debts, without saying who should sell, in such a case a clear trust would be created. Modem legislation has rendered this example of no importance in England, for the legal estate would now vest in the personal represen- tatives of the testator, and they would be the parties to execute the (a) As to charges on real estate, for the payment of debts, see post, § 1246. (b) Ante, § 976; Co. Litt. 290, b, Butler's note (1), § 4. § 1058 1063.] WILLS AND TESTAMENTS. 443 trust and to sell and convey the land axid receive the purchase - money (c). § 1061. In the next place, let us suppose the case of a will giving power to trustees to sell an estate upon some specified trust, and they should all refuse to execute the trust, or should all die before executing it. Now, it was a well-known rule of the common law, that powers are never imperative; but the acts to be done under them were left to the free will of the parties to whom they are given. The same rule was applied at law to such powers, even when coupled with a trust. Hence, in the case supposed, the trust would at law be wholly gone. The trustees, if living, could not at law be compelled to execute the trust; and by their death the power could be entirely extinguished (d). But a court of equity regarded a special power as in the nature of a trust, and enforced its execution accordingly, either by the original trustees or substituted trustees, or in administration proceedings (e). § 1062. In regard to powers, too, some nice distinctions were taken at law, which often required the interposition of courts of equity. Thus, for instance, it was a general rule of law that a mere naked power, given to two, could not be executed by one; or, if given to three, could not be executed by two, although the other were dead ; for, in each case, it was held to be a personal trust in all the persons, unless some other language was used to the contrary. Then, suppose a testator, by his will, should give authority to A. and B. to sell his estate, and should make them his executors, in such a case, it has been said, that the survivor could not sell (/). But, if the testator should give authority to his executors (eo nomine) to sell, and should make A. and B. his executors, there, if one should die, the survivor (it has 'been said) could sell {g). Now, by force of the Trustee Act, 1893 (56 & 57 Vict. c. 53), section 22, and of the Conveyancing Act, 1911 (1 & 2 Geo. v., c. 57), section 8, a power or trust vested in two or more trustees survives and may be executed by the survivors or survivor or the personal representative of a sole or last surviving trustee, unless the instrument creating the power or trust contains a provision to the contrary. § 1063. Upon the construction of wills also many difficult questions arise, as to the nature and extent of powers, and the manner in which they are to be executed. It would occupy too great a space to enter into a general examination, even of the leading authorities upon this subject. But one or two illustrations may not be without use, rather (c) Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35), bs. 14, 15, 16; Land Transfer Act, 1897 (60 & 61 Vict. c. 65), Part 1; In re Barrow-in-Furness and RawUnson's Contract, [1903] 1 Ch. 663. (d) Co. Litt. 113 a, Hargrave's note (2). (e) Harding v. Glynn, 1 Atk. 469 ; Brown v. Higgs, i Ves. 708, 5 Ves. 495, 8 Ves. 561; In re Bradshaw, Bradshaw v. Bradshaw, [1902] 1 Ch. 436. (/) Co. Litt. 1126, 113o, and Hargrave's note (2). (3) Co. Litt. 1126. 444 EQUITY JURISPRUDENCE. [CH. XXVIII. to open the mind to some of the doubts which may arise, than to satisfy inquiries (h). Thus, for example, where a testator directed that, if his personal estate and house and lands at W. should not pay his debts, then his executors should raise the same out of his copy- hold estate; it became a question whether the terms of the power authorized a sale of the copyhold estate. It was held that they did (0. § 1064. This is a comparatively simple question. But suppose a will should contain a direction or power to raise money out of the rents and profits of an estate, to pay debts or portions, &a., a question might then arise, whether such a power would authorize a sale or mortgage of the estate under any circumstances ; as, for instance, if it were otherwise impracticable, without the most serious delays and inconveniences, to satisfy the purposes of the trust. Now, this is a point upon which great authorities have entertained opposite opinions. At one time it was held that the power should be restricted to the mere application of the annual rents and profits, but the modern cases hold to a more reasonable construction, that a conveyance for value or by way of gift of the entire income is in substance and effect a gift of the capital, unless qualified by words restricting a gift of the income to a particular time or otherwise limited, or unless the circumstances render such a construction unreasonable (k). Prima facie, therefore, the donee of the power might, if necessary for the purposes of the trust, sell or mortgage the estate. § 1064c. A power to raise money by sale or mortgage of real estate was held to authorize a mortgage with a power of sale (i). But a devise of real estate to isrustees, in fee upon triist, ' ' out of the rents, issues, and profits," " and such other means (except a sale) as they may think proper, to levy and raise sufficient to pay off the charges on the estate," does not give the trustees the power to raise the charges, either by sale, by mortgage, or by leases on fines, but they must be raised out of the rents, and the profits of timber and mines (tw). And where the testator charged certain of his lands with the payment of a mortgage upon other lands (which he also devised specially), and with the payment of his debts generally, but gave no express power of sale, it was held that the executor took a power of sale by implication, and that the purchaser of the executor took the land discharged of all equity in favour of the devisee (n). At the Qi) Sugden, Powers, chap. 4, § 1, chap. 8, § 1. (i) BatemanY. Bateman, 1 Atk. 421. (k) Allan v. Backhouse, 3 Yes. & B. 64, Jac. 631; Bootle v. Blundell, 1 Mer. 193; Metcalfe v. Hutchinson, 1 Ch. D. 481 ; In re Tubbs, Dykes v. Tubbs, [1915] 1 Ch. 540. (I) Bridges v. Longman, 24 Beav. 27; In re Ghawner's Will, L. E. 8 Bq. 569. See Earl Vane v. Rigden, L. E. 5 Ch. 663. (m) Bennett v. Wyndham, 23 Beav. 521. (n) Robinson v. Lowater, 3 De G. M. & G. 272 ; Greetham v. Colton, 34 Beav. 615. See also Gorser v. Gartwright, L. R. 7 H. L. 731. § 1064, 1065.] WILLS AND TESTAMENTS. 445 present day a mortgage by deed incorporates presumptively a power of sale by force of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 19. It has been suggested that where the trustee is not authorized to grant a power of sale he should exclude this provision. There is, however, a power to order a judicial sale under section 25, and the suggested difficulty seems unsubstantial. § 1065. In the next place, independently of the consideration of- powers, many very embarrassing questions arise as to the nature and extent of the limitations of trust, properly so called, under last wills; as to the persons who are to take; and also as to the interest they are to take in the trust property. Many of these trusts require the positive interposition and direction of courts of equity, before they can be properly or safely executed by the parties in interest, so as to protect them against future litigation and controversy. And it not unfrequently happens, that the final administration, settlement, and distribution of the assets of the testator, real and personal, must stand suspended, until the aid of some court of equity has been invoked, and a judgment is obtained, containing a declaration of the nature and extent of these trusts, of the parties who are entitled to take, and of the limitations of their respective interest; and also pro- viding means, by reference to a master, whereby the cross-equities and conflicting claims of various persons, such as creditors, trustees, legatees, devisees, heirs, and distributees, may be clearly ascertained and definitely established (o). Thus, for example, upon a will creating a trust for the payment of debts, and charging them, as well as legacies, upon the real estate of the testator, it may often be a matter of serious difficulty to ascertain, from the words of the will, whether the personal estate is to be wholly exonerated from the payment of the debts and legacies ; or whether it is to be the primary fund, and the real estate only to be auxiliary thereto. And in each case, if the charges on the real estate are not sufficient to exhaust the whole, in what manner the charges are to be borne and apportioned among the different devisees and heirs (p). Until these questions are settled by a court of equity, it will be impossible for the executors or trustees; (as the case may be) to proceed to a final settlement of the various, claims, without manifest danger of having all their proceedings over- hauled in some future proceeding (g). (o) This subject has been already somewhat considered under the heads of Account,, Administration, Legacies, and Marshalling of Securities. Ante, oh. 8, 9, 10, 13. (p) See 2 Powell on Devises, by Jarman, ch. 35, pp. 664 to 714, and notes; 1 Mad. Pr. Ch. 466 to 488. See Forrest v. Prescott, L. E. 10 Eq. 545 ; Powell v. Riley ^ L. E. 12 Eq. 175. (q) Some of these difficulties have been already touched, in considering the doc- trines respecting the marshalling of assets and securities. Ante, § § 558 to 680, 633 to 645. See also the notes of Mr. Cox to Howell v. Price, 1 P. Will. 294, note (1), and to Evelyn v. Evelyn, 2 P. Will. 664, note (1), as to the point whether the personal estate is to be deemed the primary fund for the payment of debts and legacies, or not. See also 1 Mad. Pr. Ch. 467 to 488 ; id. 498 to 506. 446 EQUITY JURISPRUDENCE. [CH. XXVIII. § 1065a. It is entirely beyond the province of this book to deal with the interest® of beneficiaries under wills, a subject which belongs to the law of property and has nothing to do with any jurisprudence peculiar to courts of equity. It may be sufficient to indicate to the student that words of known legal import may be qualified by the general language of the will or by explanatory phrases, and that the judicial interpretation of a will may now be obtained cheaply and expeditiously under the Eules of the Supreme Court, 1883, O. LV., rule 3. § 1066. There are also some rules of construction of the words of wills, adopted by courts of equity in relation to trusts, which are differ- ent from those which are adopted by courts of law in construing the same words in relation to mere legal estates and interests. We have already had occasion to take notice of this distinction, in remarking upon the difference between executed and executory trusts. In the former, courts of equity follow the rules of law in the interpretation of the words ; in the latter, they often proceed upon an interpretation widely different (r). § 1067. In regard also to legacies and bequests of chattels and other personal property, courts of equity (as we have seen) treat all such cases as matters of trust, and the executor as a trustee for the benefit of the legatees, and as to the undisposed residue of such property, as a trustee for the next of kin (s). The rules, therefore, adopted by courts of equity, in expounding the words of wills in regard to bequests of personal pro- perty, are not precisely the same as those adopted by courts of law in interpreting the same words as to real estate. For courts of equity, having succeeded to the jurisdiction of the ecclesiastical courts over these matters, and these courts, in the interpretation of legacies being governed by the rules of the civil law, courts of equity have followed them in such interpretation, rather than the rules of the common law where they difier (i). § 1068. In the interpretation of the language of wills, also, courts of equity have gone great lengths, by creating implied or constructive trusts from mere recommendatory and precatory words of the testator. The best exposition is that stated by Lord Alvandey, " Wherever -any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed is to be controlled by the party ; and that he shall have an option to defeat it " (m). And where the object is charity, ihe established rule is followed, and a trust will be raised if a general (r) Ante, § 974. See aa to executory trusts, Thompson v. Fisher, 10 Bq. 207. (s) Ante, § § 593, 595. (f) Ante, § § 4, 602; Crooks v. De Vandes, 9 Ves. 197. (u) Malim V. Keighley, 3 Ves. 333, 335, aifd. 3 Ves. 529. See also In re Hamilton, Trench v. Hamilton, [1895] 2 Ch. 370; Comiskey v. Bowring-Hanbury , [1905] A. C. § 1065a — 1068.] wills and testaments. 447 charitable intention is expressed, although a definite charitable institu- tion is not named (x). The cases are very numerous and difficult to reconcile, and many will endorse the opinion of a very eminent judge, that the officious kindness of the court of chancery in interposing trusts where, jn many cases, the father of the family never meant to create trusts, must have been a very cruel kindness indeed " (y). And as was said at an earlier date, ' ' The first case that construed words of recom- mendation into a command, made a will for the testator; for every one knows the distinction between them. The current of decisions, has, of late years, been against converting the legatee into a trustee " (a). Those words were spoken in 1827 and have found an echo in subsequent cases (a), but the definition of Lord Alvanley has twice been endorsed in the House of Lords (b). It has been suggested that too little atten- tion has sometimes been paid to the fact that where the precatory words follow an absolute gift, the raising of a precatory trust after the death of the beneficiary infringes the rule of construction that an absolute gift shall not be cut down but by the clearest words. Still the common law furnishes cases illustrative of a similar result. Thus, where lands were devised to A. and his heirs, but if he should die without having settled or otherwise disposed of the estates so devised, or without leaving issue of his body then over, it was held that A. took an absolute estate with an executory gift over which had been defeated by A. 's conveyance (c). Without going through the cases in detail, it wiU be sufficient for the purposes of the student to note that a precatory trust has been raised upon the use of the words, " advise him to settle it " (d), " hoping " (e), " desiring " (/), " It is my dying request " (g), " It is my request " {h,), " 1 recommend" (i), " Save the prayer hereinafter contained .... convinced of the high sense of honour and probity of my son-in-law A., I entreat him " (fc), '* In full confidence " (0, " Feeling assured and (x) In re Burley, Alexander v. Burley, [1910] 1 Ch. 216. (y) James, L. J., Lambe v. Eames, L. E. 6 Ch. 597, 599. (z) Sale V. Moore, 1 Sim. 534. (a) Lambe v. Eames, L. E. 6 Ch. 597; In re Adams and the Kensington Vestry, 27 Ch. D. 394. (b) Knight v. Boughton, 11 CI. & P. 513 ; Comiskey v. Bowring -H anbury , [1905] A. C. 84. (c) Beechcroft v. Broome, 4 T. E. 441. (d) Porter v. Bolton, 5 L. J. N. S. Ch. 98. (e) Harland v. Trigg, 1 Bro. C. C. 142. (/) Gruwys v. Caiman, 8 Ves. 319; In re Oldfield, Oldfield v. Oldfield, [1904] 1 Ch. 549. (g) Pierson v. Garnett, 2 Bro. C. C. 38, 226. (h) Bernard v. Minshule, Johns. 276. (i) Lord Kingston v. Lord Lorton, 2 Hog. 166; Ford v. Fowler, 3 Beav. 146; Cholmondeley v. Cholmdndeley , 14 Sim. 690. (k) Prevost v. Clarke, 2 Mad. 458. (I) Wace V. Mallard, 25 L. J. Ch. 355; Comiskey v. Bawring -H anbury , [1905] A. C. 84. 448 EQUITY JURISPRUDENCE. [CH. XXVIII. having every confidence" (m), "Well knovs^ing " (n), "Not doubt- ing " (o), " Trusting " is a word of art, and plainly implies a trust (p). § 1071. In respect to certainty in the description of objects or per- sons in such recommendatory trusts, it may be proper to state, that it is not indispensable that the persons should be described by their names. But mere general descriptions vifill often amount to a sufficient designa- tion of the persons to take; such, for example, as " sons," " children," " family," and " relations "; if the context fixes the particular persons- who are to take, clearly and definitely. Thus a provision by vcay of precatory trust in favour of the family of A. would indicate the heir in the case of freehold lands (g), but in the case of personalty would in- clude all members related to the donee of the power, but if the power were not exercised a gift over in favour of relations or family would be restricted to children or next of kin (r). § 1073. In the next place, as to certainty in the description of pro- perty, or rather, as to what property is bequeathed. If it appears that the person upon whom a precatory trust is sought to be imposed had it in his power to diminish the capital of the property, there the trust will fail from want of a sufficiently definite subject-matter (s). § 1074. These may suffice as specimens of the curious refinements in the interpretation of wills, which courts of equity have adopted in creating constructive trusts ; in which, indeed, they have often been followed by courts of law in regard to legal estates (t). It is highly probable, that some of these refinements were borrowed from the civil law, in which the distinction between pure legacies, and legacies clothed with trusts, was well known. Thus, it is said, " Legatum, est, quod legis modo, id est imperative, testamento reUquitur. Nam ea quae precativo modo relinquuntur, fideicommissa vocantur." And again, " Fideicommissum est, quod non civilibus verbis, sed precativfe relin- quitur; neo ex rigore juris civilis proficiscitur, sed ex voluntate datur relinquentis " (u). And then, by the way of illustration, it is declared, " Fideicommittere his verbis possumus; rogo, peto, volo, mando, de- precor, cupio, injungo. Desidero, quoque et impero verba, utile faciixat fideicommissum : relinquo, vero, et commendo, nullam fideicommissi pariunt actionem " (x). Some of these shades of distinction are ex- (m) Gully V. Cregoe, 24 Beav. 185. (n) Bnggs v. Penny, 3 Mac. and G. 546 (0) Parsons v. Baker, 18 Ves. 476. (p) Baker v. Mosley, 12 Jur. 740. (g) Wright v. Atkyns, 17 Ves. 255; s.c. 19 Ves. 301; G. Coop. 116; Griffiths v. Evan, 5 Beav. 241. (r) Grant v. Lynam, 4 Euss. 292; Liley v. Hey, 1 Hare 580; In re Hutchinson and Tennant, 8 Ch. D. 540. (s) Curtis V. Rippon, 5 Mad. 434; Sale v. Moore, 1 Sim. 634; Lambe v Eames L. E. 6 Ch. 597. (1) Doe V. Smith, 5 M. & S. 126 ; Doe v. Joinville, 3 East 172. (m) Pothier, Pand. Lib. 30, tit. 1 to 3, n. 3. (x) Ibid. ; Inst. B. 2, tit. 24, § 3; Cod. Lib. 6, tit. 43, 1. 2; Dig. Lib. 31, tit. 2, f. 77 passim. § 1071 — 1074.] WILLS AND TESTAMENTS. 449 tremely nice, and almost evanescent ; especially that between the words " deprecor, peto," and " desidero," and the words " relinquo " and commendo. ' ' Again, ' ' Etiam, hoc modo ; cupio des, opto des, credo te daturum, fideicommissum est (y). Et eo modo relictum; exigo, desidero uti des, fideicommissum valet («). Verba, quibus testator ita caverat; non dubitare se, quodeumque uxor ejus cepisset liberis suis redditurum, pro fideicommisso accipienda " (a). In these last citations we may clearly trace the origin, or at least the application, of some of our modem equity doctrines. {y) Dig. Lib. 30, tit. 1, f. 115. (z) Ibid. f. 118. (a) Dig. Lib. 31, tit. 2, f. 67, § 10. E.J. 29 450 EQUITY JURISPRUDENCE. [CH. XXIX. CHAPTER XXIX. ELECTION AND SATISFACTION. § 1075. It is in cases of wills also, that the doctrine respecting Elec- tion AND Satisfaction must frequently, though not exclusively, arise in practice, and is acted upon and enforced by courts of equity. Election, in the sense here used, is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is clear intention of the person, from whom he derives one, that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party who is to take, has a choice, but he cannot enjoy the benefits of both (a). § 1076. Thus, for example, if a testator should, by his wUl, give to a legatee an absolute legacy of ten thousand pounds, or an annuity of one thousand pounds per annum during his life, at his election; it would be clear that he ought not to have both ; and that he ought to be com- pelled to make an election, whether he would take the one or the other. This would be a case of express and positive election (b). But suppose, instead of such a bequest, a testator should devise an estate belonging to his son, or heir-at-law, to a third person ; and should, in the same will, bequeath to his son, or heir-at-law, a legacy of one hundred thousand pounds, or should make him the residuary devisee of all his estate, real and personal. It would be manifest, that the testator in- tended that the son or heir should not take both, to the exclusion of the other devisee ; and therefore he ought to be put to his election which he would take ; that is, either to relinquish his own estate, or to compen- sate the party disappointed, or in the case of a testator his estate, out (o) Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 394, note (b) ; Thellusson V. Woodford, 13 Ves. 220, 2 Mad. Pr. Ch. 40 to 49 ; Jeremy on Bq. Jurisd. B. 3 Pt. 2, ch. 5, pp. 534 to 538. Mr. Swanston's note is drawn up with great ability and learn- ing ; and I have freely used it in the discussion of this topic. The whole subject of election is also most elaborately examined in Roper on Legacies by White, vol. 2, ch. 23, pp. 480 to 678, to which the attention of the learned reader is invited. It is wholly inconsistent with the nature of these Commentaries to discuss all the minute distinc- tionfi belonging to it, interesting and important as they certainly are. The subject of election has formed the subject of an exhaustive treatise, by George Serrell, Esq., M.A., LL.D., to which the reader is further referred. (b) See Parker v. Sowerby, 4 De G. M. & G. 321; Linley v. Taylor, 1 Giff. 67. § 1075 — 1078.] ELECTION AND SATISFACTION. 451 of the bequest under the will. This would be a case of implied or con- structive election (c). § 1077. Now, the ground upon which courts of equity interfere in all cases of this aort (for at law there is no direct remedy to compel an election) is, that the purposes of substantial justice may be obtained by carrying into full effect the whole intentions of the testator (d). And in regard to the cases of implied election, it has been truly remarked, that the foundation of the doctrine is still the intention of the author of the instrument ; an intention, which, extending to the whole disposi- tion, is frustrated by the failure of any part, but such intention may be repelled by the declaration in the instrument itself of a particular inten- tion inconsistent with the presumed and general intention (e). Its characteristic, in its application to these cases, is, that by equitable arrangement, full effect is given to a donation of that which is not the property of the donor. This principle is applicable to the case of invalid provisions affecting appointment under powers. If a valid appointment is made to an object of the power burdened with a provision not war- ranted by the power, the appointment will be good and the invalid pro- vision will be rejected, and as the only fund out of which compensation is to be sought is the appointed property, no case arises to which the equitable doctrine of election can apply (/). But if the donee of the power makes a gift out of his own property to the object of the power, then the appointee must make compensation out of the property so given, if he elects to defeat the wishes of the donee so far as they are invalid (g). § 1078. The doctrine of election, like many other doctrines of equity jurisprudence, appears to have been derived from the civil law. By that law, a bequest of property which the testator knew to belong to another was not void ; but it entitled the legatee to recover from his heir either the subject of his bequest, or, if the owner was unwilling to part with that at a reasonable price, the pecuniary value. Thus, it is said in the Institutes, that a testator may not only bequeath his own property, or that of his heir, but also the property of other persons ; so that the heir may be obliged to purchase and deliver it ; or, if he cannot purchase it, to give the legatee its value (h). But ordinarily, to give effect to a legacy in such a case, the testator must have known that the property so bequeathed by him belonged to another ; and not have been ignorant of the fact, and supposed the property was his own. " Haere- (c) Streatfield v. Streatfield, Oas. t. Talb. 176; Bristow v. Warde, 2 Ves. Jur. 336 ; Howells v. Jenkins, 1 De G. J. & S. 617. (d) Crosbie v. Murray, 1 Ves. Jun. 557, 559. (e) In re Vardon's Trusts, 31 Ch. D. 375; Haynes v. Foster, [1901] 1 Ch. 361. (/) Carver v. Bowles, 2 Russ. & M. 304; Woolridge v. Woolridge, Johns. 63; Churchill v. Churchill, L. B. 5 Bq. 44. (g) In re White, White v. White, 22 Ch. D. 555. (h) Inst. B. 2, tit. 20, § 4, tit. 24, § 2; Dig. Lib. 30, tit. 1, f. 30, § 7; Dig. Lib. 31, tit. 2, f. 67, § 8; 1 Swanst. 396, note. 452 EQUITY JURISPBUDBNCE. [CH. XXIX. dum etiam res proprias ' ' (says the Code) ' ' per fideicommissum relinqui posse, non ambigitur " (i). § 1079. In the civil law, also, wherever the heir or devisee took an estate under a will, containing burdensome legacies, or any disposition of his own property in the manner above mentioned, he was at liberty to accept or to renounce the inheritance. But (it has been said) he had no other alternative. He could not accept the benefit, offered by the will, and retain the property, of which it assumed to dispose, upon the terms of compensation or indemnity to the disappointed claimant. The effect, therefore, of an election to take in opposition to the will, was a renunciation of all the benefits offered by it. The effect of an election to take under the will was different according to the subject-matter. If the property, of which the will assumed to deprive the devisee, was pecuniary, he was compelled to perform the bequest to the extent of the principal and interest which he had received ; if the property was specific, then a peremptory obligation was imposed upon him to deliver that very thing, although exceeding the amoimt of the benefit conferred on him (k). § 1080. The earliest cases, in which the doctrine of election was applied in English jurisprudence, seems to have been those arising out of wills; although it has since been extended to eases arising under other instruments (I). It has been suggested on more than one occasion that Lord Redesdale stated that the doctrine of election constitutes a rule of law, as well as of equity (m). But it does not require a critical reading of the passage to appreciate that Lord Redesdale is adverting to the equivocal nature of the expression election, which may mean a right of choice which was the purely equitable doctrine, and the exer- cise of that right which was known to the common law (n), and generally referred to under the head of Estoppel, and also known in equity where it worked as an estoppel but did not oust a right to a further benefit by way of compensation. § 1081. Whatever may be the truth of the case as to the recognition of the doctrine of election in courts of law, it is very certain that it is principally enforced in courts of equity, where, indeed, the jurisdiction to compel the party to make an election is admitted to be exclusive. But, independent of this broad and general ground of jurisdiction, the doctrine must be exclusively enforced in equity, in all cases of mere trust estates ; or where there is the intervention of complicated cross (t) Cod. Lib. 6, tit. 42, 1. 25. (ft) Mr. Swanaton's note to Dillon v. Parker, 1 Swanst. 396. (!) Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 397, 400, 401; Bigland v. Huddleston, 3 Bro. C. C. 28S, note, Belt's edition, and his note (3); Green v. Green, 9 Meriv. 86; s.c. 19 Ves. 665. It appears, from Mr. Swanaton's note to Dillon v. Parker, 1 Swanst. 397; id. 443, 444, that traces of the interposition of courts of equity can be found as early aa the reign of Queen Elizabeth. (m) Birmingham v. Kirwan, 2 Sch. & L. 444, 450. (n) Lythgoe v. Vernon, 5 H. & N. 180. § 1079 — 1084.] ELECTION AND SATISFACTION. 453 equities between different persons, claiming in different degrees, and under different limitations and titles ; or where conveyances are neces- sary to be decreed ; or where the recompense is not of a nature, capable of being applied as a bar at law. Thus (to put a plain case), at the common law not collateral recompense, made in satisfaction of dower, or of a right of freehold, could be pleaded in bar of such right of freehold or of dower (o). But, in equity, it would be clearly held obligatory; and the party would be perpetually enjoined against asserting the title at law, or put to an election, as the circumstances of the case might require (p). § 1082. In the actual application of the doctrine of election, courts of equity proceed upon principles, which are wholly inc-apable of being enforced in the like manner by courts of law. Thus, for example, suppose a case of election under a will, which disposes of other property of a devisee ; and the devisee should elect to hold his own property, and renounce the benefit of the devise under the will, or (as the compendious phrase is) should elect against the will ; in such a case, it is clear that the party disappointed of his bequest or devise by such an election, would, at law, be wholly remediless. The election would terminate all the interest of the parties respec- tively in the subject-matter of the devise to them. The election to hold his own estate would, of course, maintain the original title of the devisee ; and his renunciation of the intended benefit in the estate devised to him would leave the same to fall into the residuum of the testator's estate, as property undisposed of. § 1083. But the subject is contemplated in a very different light by courts of equity ; for, in the event of such an election to take against the instrument, courts of equity will compel the devisee to make up to the disappointed claimants the amount of their interest therein ; for it is now definitely settled that the party claiming against the will does not forfeit his interest thereunder, but is bound to provide out of the property willed to him a pecuniary compensation for those disappointed by his election (g). § 1084. The reasoning, by which this doctrine is sustained, has been stated by Sir William Grant, in his usual clear and felicitous manner. " If," said he, " the will is in other respects so framed as to create a case of election, then hot only is the estate given to the heir under an implied condition that he shall confirm the whole of the will ; but, in contemplation of equity, the testator means, in case the condition shall not be complied with, to give the disappointed devisees, (o) Co. Litt. 36i); 1 Swanst. 426, 427, note. (p) Lawrence v. Lawrence, 2 Vern. 366, and Mr. Baithby's note (1) ; 1 Swanst. 398, note. (g) Bristow v. Warde, 2 Ves. Jun. 836; Howells v. Jenkins, 1 De Q. J. k S. 617. The curioua will find the conflicting decisions and dicta referred to in the notes to Gretton v. Haward, 1 Swanst. 409; and to Dillon v. Parker, 1 Swanst. 359. 454 EQUITY JURISPRUDENCE. [CH. XXIX. out of the estate over which he had a power, a benefit, correspondent to that which they are deprived of by such non-compliance. So that the devise is read, as if it were to the heir absolutely, if he confirm the will; if not, then in trust for the disappointed devisees, as to so much of the estate given to him as shall be equal in value to the estate intended for them " (?■). § 1086. In regard to the point, when an election may be insisted on, or not, everything must (it is obvious) depend upon the language of the particular vnll ; and it is difficult, therefore, to lay down many general rules on the subject. On the one hand it may be stated, that, in order to raise a case of election there must be a clear intention, expressed on the part of the testator, to give that which is not his property (s). A mere recital in a will, that A. is entitled to certain pro- perty, but not declaring the intention of the testator to give it to him, would not be a sufficient demonstration of his intention to raise an election (i). So, if a debtor, by his will, should recite the amount of the debt, erroneously overstate the sum, and direct the payment of it, and also should bequeath to the creditor a legacy; in such a case the creditor would be put to his election, unless it appeared or was to be inferred that the testator did not mean to pay the full amount of the actual debt (u). § 1087. Upon the same ground, a case of election cannot ordinarily arise where property is devised in general terms; as, a devise of "all my real estate in A.," which estate is subject to the claims of a devisee or legatee; for it is not apparent that he meant to dispose of any property but what was strictly his own, subject to that charge (x). § 1087a. Upon similar grounds, where a testatrix gave a legacy to B., in satisfaction of all claims upon the estate, he having, at the time, a claim upon the testatrix, in respect to a legacy under the will of C, it was held, that evidence of there being no other claim by B. against the testatrix, was inadmissible; and that B. was not, therefore, compellable to elect between the benefit under the wiU of the testatrix, and that of C. (y). The obvious reason for the decision is, that the language of the testatrix did not, by any means, clearly point to any extinguishment of the claim under the will of C, and might well be satisfied by supposing it used solely with reference to any claims ex directo against her estate. § 1088. It was upon this principle that, prior to the Dower Act, 1833, a doweress could claim a testamentary provision in addition to (r) Welby v. Welby, 2 Ves. & B. 190, 191. (s) Att.-Gen. v. Earl of Lonsdale, 1 Sim. 105. (t) Dashwood v. Peyton, 18 Ves. 41; Box v. Barrett, L. R. 3 Eq. 244; In ie Bagot, Paton v. Ormerod, [1893] 3 Ch. 348. («) Whitfield V. Glemment, 1 Mer. 402; In re Wood, Ward v. Wood, 32 Gh. D. 517 ; In re Kelsey, Woolley v. KeUey, [1905] 2 Ch. 465. (x) Stevens v. Stevens, 3 Drew, 697 ; 1 De G. & J. 62; Evans v. Evans, 2 N. E. 409. (y) Dixon v. Samson, 2 Y. & Coll. Ex. 566. § 1086 — 1093.] ELECTION AND SATISFACTION. 455 her dower, unless made manifestly with the intention of its being in satisfaction (0). § 1089. It is upon a similar ground, that the doctrine of election has been held not to be applicable to cases where the testator has some present interest in the estate disposed of by him, although it is not entirely his own. In such a case, unless there is an intention clearly manifested in the will, or (as it is sometimes called) a demon- stration plain, or necessary implication on his part, to dispose of the whole estate, including the interest of third persons, he will be presumed to intend to dispose of that which he might lawfully dispose of, and no more (a). § 1090. It may be stated, as a general proposition, that apart from express provision (b), there can be no case of election raised where there are gifts contained in the same instrument (c). Thus, for instance, if a man should, by his will, give a child, or other person, a legacy or portion, in lieu or satisfaction of a particular thing expressed, that would not exclude him from other benefits, although it might happen to be contrary to the will ; for courts of equity will not construe it, as meant in lieu of everything else, when the testator has said it is in lieu of a particular thing (d). § 1091. Again, if a legatee should decline one benefit charged with a portion, given him by a will, he would not be bound to decline another benefit, unclogged with any burden, given him by the same wiU (e). So, if a legatee cannot obtain a particular benefit, designed for him by a will, except by contradicting some part of it, he will not be precluded by such contradiction, from claiming other benefits under it (/). § 1092. It may be added, that the doetrine of election is not applied to the case of creditors. They may take the benefit of a devise for payment of debts, and also enforce their legal claims upon other funds disposed of by the will; for a creditor claims not as a mere volunteer, but for a valuable consideration, and ex debito jvstitiae (g). § 1093. On the other hand, it is sufficient to raise a case of elec- tion in equity, that the testator does dispose of property which is not his own, without any inquiry whether he did so, knowing it not to be (z) Bending v. Bending, 3 K. & J. 257. (a) Stevens v. Stevens, 3 Drew. 697; 1 De G. & J. 62; Evans v. Evans, 2 N. E. 409. (b) Talbot V. Earl of Radnor, 3 M. & K. 252. (c) Woolaston v. King, L. E. 8 Eq. 165; Jn re Lord Chesham, Cavendish v. Dacre, 31 Ch. D. 466. The subject is discussed at length in reference to the earlier cases in the notes to Dillon v. Parker, 1 Swanst. 359 ; and to Gretton v. Haward, 1 Swanat. 409. (d) East v. Cook, 2 Ves. Sen. 23; Dillon v. Parker, 1 Swanst. 404, 405, note. See Wilkinson v. Dent, L. E. 6 Ch. 339. (e) Andrews v. Trinity Hall, 9 Ves. 534; Warren v. Rudall, 1 Johns. & H. 1. (J) See Dillon v. Parker, 405, note. (3) Kidney v. Coussmaker, 12 Ves. 136; Cooper v. Cooper, L. E. 7 H. L. 63. '3:56 EQDITY JURISPRUDENCE. [CH. XXIX. his own, or whether he did so under the erroneous supposition that it was his own. If the property was known not to be his own, it would be a clear case of election. If it was supposed erroneously to be his own, still, there is no certainty that his intention to devise it would have been changed by the mere knowledge of the true state of the title ; and the court will not speculate upon it (h). So, although a part of the benefits proposed by a will should fail, the remainder may consti- tute a case for an election (i). § 1094. Upon the ground of intention, also, where a testator has an absolute power to dispose of the subject, and an intention is clearly expressed in his wiU to exercise that power, it will be sufficient to raise a case of election (k). The familiar illustration was that of a devise by a testator, having an absolute power to dispose of an estate, to his heir; in this case, before the Inheritance Act, 1833, the heir would have taken by descent, and the devise would have been inoperative, whether the heir admitted or disputed the wiU; yet, if the testator in his will devised an estate belonging to the heir to a third party the heir would have been put to his election between the estate devised, which came to him by the bounty of the testator, and his own claims so far as adverse to the will. § 1095. It was, at one time, supposed, that the doctrine of election was not applicable to the case of persons claiming a remote interest in property disposed of in a manner adverse to other rights; as, for instance, to a remainderman, claiming after an estate tail in the property disposed of (I). But this qualification is long since over- ruled and it is now well established, that the doctrine of election is equally applicable to all interests, whether they are immediate or remote, vested or contingent, of value or of no value, and whether these interests are in real or in personal estate (m). § 1097. Questions have also arisen in courts of equity, as to what acts or circumstances should be deemed an election on the part of the person bound to make it. Upon such a subject no general rule can be laid down; but every case must be left to be decided upon its own particular circumstances rather than upon any definite abstract doctrine. Lapse of time alone is not sufficient to conclude a party, for until he is called upon to elect he may enjoy all proprietary rights over the respective properties (n) ; and before he can be called upon to elect he is entitled to have the respective values of the properties {h) Whistler v. Webster, 2 Ves. Jun. 370; Thellusson v. Woodford, 13 Ves. 220; Welby V, Welby, 2 Ves. & B. 199 ; Mr. Swanston'a- note to Dillon v. Parker, 1 Swanst. 407; In re Brooksbank, Beauclerk v. James, 20 Ch. D. 160- (i) Newman v. Newman, 1 Bro. C. C. 186 ; 1 Swanst.' 402, note. (/c)Sugden on Po'wers, ch. 11, § 5, par. 6; Whistler y. Webster, 2 Ves. Jun.. 367. {I) See Bor v. Bor, cited 3 Bro. Pari. C. 167, note; 1 Swanst. 407, note, (m) Wilson v. Lord Townsend, 2 Ves. Jun. 697 ; Dillon v. Parker, 1 Swanst. 408, note; Webb v. Earl of Shaftesbury, 7 Ves. 488. (n) Spread v. Morgan, 11 H. L. C. 588 i-Seaton v. Seaton, 13 App. Cas. 61. § 1094 — 1097b.] ELECTION and satisfaction. 457 ascertained to enable him to form a correct opinion as to his rights (o). To conclude a party by his extra-judicial acts it is necessary to show that he knew all the facts, that the fact that he was called upon to exercise his choice was present to his mind, and that these two circumstances concurring he deliberately made his choice (p). It would perhaps be sufficient if it could be shown affirmatively that the party had made his election intentionally with an express waiver of his rights, quolibet potest renunoiare jiiri pro se introducto (g). The acts of a party entitled to a future interest are not to be regarded as so deliberate as those of a person entitled to a present interest (r). When this is ascertained affirmatively, it may be further necessary to consider, whether the party was competent to make an election; whether he can restore the other persons affected by his claim to the same situation, as if the acts had not been performed, or the acquiescence had not existed; and, whether there has been such a lapse of time as ought to preclude the court from entering upon such inquiries, upon its general doctrine of not entertaining suits upon stale demands, or after long delays (s). § 1097a. The doctrine being based upon compensation, there can be no election where there is no fund out of which the disappointed party is to be compensated (t). Where the gift is tainted with illegality, motives of policy prevent the operation of the doctrine of election, for that might attain illegal ends by indirect means (w). § 1097f?. In the case of infants, the court will elect as a result of enquiries in chambers or upon the evidence adduced in court (a;) ; and the same practice used to be followed in the case of married women prior to the passing of the Married Women's Property Act, 1882 (y). In the case of lunatics so found by inquisition, the com- mittee of the estate acts under the sanction of the Lords Justices sitting in Lunacy (z). In the case of other lunatics, the court itself exercises the right to elect (a). In the case of a married woman restrained from anticipation, the fetter may now be removed to enable her to make an election (b). (o) Whistler v. Webster, 2 Ves. Jun. 36T;, Douglas v. Douglas, L. E. 12 Eq. 617 ; Wilson V. Thornbury, L. E. 10 Ch. 239. . (p) Spread v. Morgan, 11 H. L. C. 588; Wilson v. Thornbury, L. E. 10 Ch. 239. (9) See per Parke, B., Kelly v. Solari, 9 M. & W. 54, 58, 59. (r) Padbury v. Clark, 2 Mac. & G. 298. (s) Mr. Swanaton's note to Dillon v. Parker, 1 Swanat. 382, where the principal authorities are collected. See Brice v. Brice, 2 Moll. 21. (t) Woolridge v. Woolridge, Johns. 63; Churchill v. Churchill, L. E. 5 Eq. 44; In re Vardon's Trusts, 31 Ch. D. 275; Haynes v. Foster, [1901] 1 Ch. 361. (u) In re Oliver's Settlement, Evered v. Leigh, [1905] 1 Ch. 191. (x) Lamb v. Lamb, 5 W. E. 772. (y) Wilson v. Lord Townshend, 2 Vea. Jun. 693; Cooper v. Cooper, L. E. 7 H. L. 63. - {z) In re Hewson, 23 L. 3. Ch.'256. (o) Wilder v. Piggott, 22 Ch. D. 263 (b) Conveyancing Act, 1881, a. 39. See as to the old law, Robinson v. Wheel- right, 6 De G. M. & G. 635. 458 EQUITY JURISPRUDENCE. [CH. XXIX. § 1099. These remarks may suffice on the subject of election, a doctrine of no inconsiderable nicety and difficulty in its natural administration in equity; and we shall now proceed to the kindred doctrine of Satisfaction. Satisfaction may be defined in equity to be the donation of a thing, with the intention expressed or implied that it is to be an extinguishment of some existing right or claim of the donee. It usually arises in courts of equity as a matter of presumption, where a man, being under an obligation to do an act (as to pay money), does that by wiU, which is capable of being considered as a performance or satisfaction of it, the thing performed being ejusdem generis with that which he has engaged to perform. Under such circumstances, and in the absence of all countervailing circumstances, the ordinary presumption in courts of equity is, that the testator has done the act in satisfaction of his obligation. Although the original text has been allowed to stand unaltered, it is advisable to warn the student that there is a branch of equity known as performance which has nothing to do with satisfaction, and is discussed hereafter. Another matter in respect of which the student may be led astray is the language of the judgments which speak of the gift being adeemed. In ademption properly so called the subject-matter is destroyed, in satisfaction it exists, but one provision is held to be a substitute for another. § 1100. It is certainly not a little difficult to vindicate the extent to which this doctrine has been carried in courts of equity, as a matter of presumption. What is given by a will ought, from the cliaracter of the instrument, ordinarily to be deemed as given as a mere bounty, unless a contrary intention is apparent on the face of the instrument (c) ; or, as it has been well expressed, whatever is given by a will is, prima facie, to be intended as a bounty and benevolence (d). Under such circumstances, the natural course of reasoning would be, that, in order to displace this presumption, a clear expression of a contrary intention should be made out on the face of the will (e). But the doctrine of courts of equity has proceeded upon an opposite ground ; and the donation is held to be a satisfaction, unless that conclusion is. repelled by the nature of the gift, the terms of the will, or the attendant circumstances. For it has been said that -a man shall be intended to be just, before he is kind ; and when two duties happen to interfere at the same point of time, that which is the most honest and best is to be preferred (/). § 1101. But although this may be fair reasoning, where there is a deficiency of assets to satisfy both claims or duties, yet it is utterly • (c) Clarke v. Sewell, 3 Atk. 96. (d) Eastewoode v. Vincke, 2 P. "Will. 616. (e) But see Weall v. Rice, 2 Eusa. & Myl. 267, where Sir John Leach intimates that the rule is as it ought to be, but without stating any reason. See also Jones v. Morgan, 2 Y. & Coll. 403, 412. (/) Per Lord Cottenham, L.C., in Pym v. Lockyer, 5 Myl. & Cr. 29, 35 § 1099 — 1103.] ELECTION AND SATISFACTION. 459 impossible to apply it to the great mass of eases in whieh the doctrine of implied satisfaction has prevailed, and where there has been no deficiency of assets to discharge all the claims. The truth is, that the doctrine was introduced originally upon very unsatisfactory grounds; and it now stands more upon authority than upon principle. And a strong disposition has been manifested in modem times not to enlarge the sphere of its operation; but to lay hold of any circum- stances to establish exceptions to it (g). We shall presently see that it is somewhat difierently applied in cases of creditors, properly so called, from what it is in cases of portions and advancements to children; for, in the latter cases, the presumption of satisfaction is more readily entertained and acted upon more extensively than in the former. § 1102. It is obvious, from this description of the doctrine of satis- faction, that the presumption is not conclusive, but may be rebutted by other circumstances attending the will. If the benefit given to the donee, possessing the right or claim, is different in specie from that to which he is entitled (h), the presumption of its being given in satis- faction will not arise, unless there be an express declaration («'), or a clear inference from other parts of the will, that such is the intention of the testator. The presumption may be rebutted, not only by intrinsic evidence, thus derived from the terms of the will itself, but it may also be rebutted or confirmed by extrinsic evidence, as by declara- tions of the testator touching the subject, or by written papers, explaining or confirming the intention (fc). § 1103. Thus, for example, land given by a will is not deemed to be given in satisfaction of money due to the devisee ; and money given by a will is not deemed to be given ifi satisfaction of an interest of the legatee in land ; unless there is something more in the will explanatory of the intention of the testator. Accordingly, it was laid down by Lord Hardwicke, in respect to the doctrine of satisfaction, that, when a bequest is taken to be by way of satisfaction for money already due to the donee, the thing given in satisfaction must be of the same nature, and attended with the same certainty, as the thing in lieu of which it is given; and that land is not to be taken in satisfaction for money, or money for land (I) ; or land of one tenure for land of another tenure (m). (g) Clarke v. Sewell, 3 Atk. 97; Sowden v. Sowden, 1 Cox, 165; Lady Thynne V. Earl of Glengall, 2 H. L. C. 131. (h) Chaplin v. Chaplin, 3 P. Wms. 245 ; Lechmere v. Earl of Carlisle, 3 P. Wms. 211, s.c. nom. hechmere v. Lady Lechmere, Caa. t. Talb. 80; Alleyn v. Alleyn, 2 Ves. Sen. 37. (i) See Prime v. Stebbing, 2 Ves. Sen. 409. (k) Kirk v. Eddowes, 3 Hare, 509; Powys v. Mansfield, 3 M. & C. 359; In re Lacon, Lacon v. Lacon, [1891] 2 Ch. 482 ; In re Scott, Langton v. Scott, [1903] 1 Ch. 1. See In re Shields, Corbould-Ellis v. Dales, [1912] 1 Ch. 591. (l) Bellasis v. Uthwatt, 1 Atk. 426, 427; Chaplin v. Chaplin, 3 P. Will. 247; Alleyn v. Alleyn, 2 Ve8. Sen. 37. (to) Pinnell v. Hallett, Ambler, 106. 460 EQUITY JURISPKUDENCE. [CH. XXIX. § 1104. In regard also to cases, where tKe thing given is ejuadem generis with that due to the donee, the presumption that it is given in satisfaction, does not necessarily arise ; nor is it, as has been already intimated, universally conclusive. To make the presumption of satis- faction hold in any such cases, it is necessary that the thing substituted should not be less beneficial, either in amount, or certainty, or value, or time of enjoyment, or otherwise, than the thing due or contracted for (n). The notion of satisfaction implies the doing or giving of some- thing equivalent to the right extinguished. And it would be a very unjustifiable course to arraign the justice of the testator, by presuming that he meant to ask a favour, instead of performing a duty. § 1105. But where the thing substituted is ejusdem generis, is of equal or of greater value, and much more beneficial to the donee, than his own claim ; there the presumption of an intended satisfaction is generally allowed to prevail. Whether the presumption of an intended satisfaction, pro tanto, ought to be made in any case, where the things are ejusdevi generis, but less than the claim of the donee, is a matter upon which some diversity of opinion once existed ; but the current of modem authority has established the presumption beyond dispute (o). § 1106. The learned author had in common with equally eminent equity practitioners failed to observe strictly the distinction between satisfaction properly so called and cases of the performance of agree- ments and covenants, as the cases he cites show, nor is the confusion always absent at the present day. The best exposition, subject to one correction, of the distinction is contained in the judgment of Sir Thomas Plumer (p). " An important distinction exists between satis- faction and performance. Satisfaction supposed intention; it is some- thing different from the subject of the contract, and substituted for it ; and the question always arises, was the thing done intended as a sub- stitute for the thing covenanted? a question entirely of intent: but with reference to performance, the question is. Has that identical act which the party contracted to do been done? " The. passage should be qualified, as a substantial compliance with the terms of the contract is sufficient (q). Some cases, which have actually passed into judgment, may illustrate this distinction. Thus, where A. on his marriage, by articles, covenant«d to leave his wife B., if she should survive him, £620; and that his executor should pay it in three months after his decease; and A. died intestate, and without issue, whereby his wife (who survived him) became entitled to a moiety of his personal estate, which was more than the £620; the question arose, whether the distributive (n) Blandy v. Widmore, 1 P. Will. 324, Mr. Cox's note (1); Lechmere v. Earl of Carlisle, 3 P. Will. 211; Lechmere v. Lady Lechmere, Gas. t. Talb. 80. (o) Lady Thynne v. Earl of Glengall, 2 H. L. C. 131; Atkinson v. Littlewood, L. R. 18 Eq. 593; In re Blundell, Blundell v. Blundell, [1906] 2 Ch. 222. (p) Goldsmid v. Goldsmid, 1 Swanst. 211, 219. (g) Ga-r-thshore v. Chalie, 10 Ves. 1; Bengough v. Walker, 15 Ves. 507. § 1104 1109.] ELECTION AND SATISFACTION. 461 share of B. should be deemed a satisfaction, or rather a due performance, of the covenant; for the covenant was not broken, the wife being administratrix. And it was held to be a due performance, although it is called in the report a satisfaction (r). So, where A. covenanted, by marriage articles, that his executors should, in three months after his decease, pay his wife £3,000 ; and by his will he gave all his property to his executors, in trust, to divide it in such ways, shares, and propor- tions as to them should appear right. The trust failed, whereby his estate became divisible according to the Statute of Distributions; and his wife survived him. It was held, that her distributive share, being greater than £3,000, was a satisfaction of the covenant (s). § 1107. The ground of each of these decisions seems to have been that there was no breach of the covenant; and as the widow, by mere operation of law, through the Statute of Distributions, received from her husband a larger sum than he had covenanted to pay her, it ought to be held a full performance of his covenant. These decisions do not seem to stand on a very firm foundation, as illustrations of the doctrine of satisfaction ; for (as has been well observed) considerable doubt might have been entertained, whether of two claims so distinct, the satisfaction of one ought to be considered as a satisfaction of the other. But courts of equity would now hardly deem it fit to re-examine, and upon principle to discuss the point thus settled by them, which has been at rest for more than two centuries (t). § 1108. And here it may be remarked, that the doctrine of satisfac- tion, and also of performance of covenants, arising from bequests in wills, was well known in the civil law (u) ; and it was probably derived from that source with some variations into our jurisprudence. Thus, in the Digest, a case is put of a father, covenanting on his daughter's marriage to give her a certain sum, as a dotal portion, and afterwards leaving a legacy to her to the same amount ; and it was there held that it amounted to a satisfaction of the portion (a;). And other cases are there put of a like nature, where parol evidence was held admissible to establish the intention of satisfaction (y). § 1109. Questions of satisfaction usually come before courts of equity in three classes of cases : (1) in cases of portions secured by a marriage settlement; (2) in cases of portions given by will and an advancement to the donee afterwards in the life of the testator; (3) in cases of legacies to creditors. It may be convenient as well as proper, in our brief survey of this subject, to examine the doctrine separately in respect to each of these classes; as the application of it is not, or (r) Blandy v. Widmore, 1 P. Will. 324, and Mr. Cox'e note (1). (s) Goldsmid v. Goldsmid, 1 Swanst. 211. (t) See per Cozens-Hardy, M.B., In re Roby, Howlett v. Newington, [1908] 1 Ch. 71, 74. (u) See post, § 1114. (a:) Dig. Lib. 30, tit. 1, f. 84, § 6. (i;) Dig. Lib. 30, tit. 1, f. 123. 462 EQUITY JURISPRUDENCE. [CH. XXIX. at least may not be, precisely the same throiighaut in all of them (n). The first class may be illustrated by stating the case where a portion or provision is secured to a child by marriage settlement, or otherwise ; and the parent or person standing in loco parentis, afterwards by will gives the same child a legacy, or share of residue, without expressly directing it to be in satisfaction of such portion or provision. In such a case, if the gift be of a sum as great as, or greater than, the portion or provision; if it be ejusdem generis; if it be equally certain with the latter, and subject to no contingency, not applicable to both ; and if it be shown that it is not given for a different purpose ; then it will be deemed a satisfaction in full or pro tanto (a). § 1110. We have already had occasion to intimate the doubts, which may be justly entertained, as to the correctness of the reasoning, by which courts of equity have been led to these results. As an original question, at least where the assets are suf&cient to satisfy the portion, as well as the legacy, the natural presumption would be, that the testator intended the latter as a bounty, in addition to the duty already contracted for; a bounty fit for a parent to bestow, and far more reputable to his sense of moral and religious obligation, than a mere dry performance of his positive contract, recognized by law, and resting on a valuable consideration. But here as well as in many other cases, we must be content to declare, Ita lex scripta est ; — It is established, although it may not be entirely approved. Even a small variance in the time of payment, or other trifling differences, where the value is sub- stantially the same, will not vary the application of the rule, as the present incUnation of courts of equity is against raising double por- tions (b). Being based upon the equitable presumption against double portions, it is displaced where one legatee is a stranger. (c). § 1111. The second class may be illustrated'by reference to the case, where a parent or other person in loco parentis, bequeaths a legacy or share of residue to a child or grandchild, and afterwards in his lifetime, gives a portion, or makes a provision for the same child or grandchild, without expressing it to be in lieu of the legacy. In such a case, the portion so received, or the provision so made, on marriage or otherwise (if it be certain, and not merely contingent, if no other distinct object be pointed out, and if it be ejusdem generis), will be deemed a satisfac- tion in whole or in part of the testamentary gift, or, as it is sometimes («) See HinchcUjfe v. Hinchdijfe, 3 Ves. 527, where Lord Alvanley intimated that there might be a difference between cases of portions by settlement, and cases of lega- cies by will, as to subsequent advancements. (o) Lady Thynne v. Earl of Glengall, 2 H. L. C. 131; Atkinson v. Littlewood, L. E. 18 Bq. 593; In re Tussaud, Tussaud v. Tussaud, 9 Ch. D. 363; Montague \. Earl of Sandwich, 32 Ch. D. 525; In re Blundell, Blundell v. Blundell, [1906] 2 Ch 222. (fc) Lady Thynne v. Earl of Glengall, 2 H. L. C. 131. (c) In re Heather, Pumfrey v. Fryer, [1906] 2 Ch. 230. § 1110 — 1113.] ELECTION AND SATISFACTION. 463 expressed, it will be held an ademption of the legacy (d). The expres- sion in loco parentis in this connection has been defined by Lord Cotten- ham, L.C., in the following words : " No doubt the authorities leave, in some obscurity, the question what is meant by the expression, univer- sally adopted of one in loco parentis " (e). Lord Eldon, however, in Ex parte Pye, has given to it a definition which 1 readily adopt, not only because it proceeds from his high authority, but because it seems to me to embrace aU that is necessary to work out and carry into effect the object and meaning of the rule. Lord Eldon says (/) it is a person " meaning to put himself in loco parentis, in the situation of the person described as the lawful father of the child ' ' ; but this definition must, 1 conceive, be considered as applicable to those parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child. The offices and duties of a parent are infinitely various, some having no connection whatever with making a provision for a child ; and it would be most illogical, from the mere exercise of any of such offices and duties by one not the father, to infer an intention in such person to assume also the duty of providing for the child. ' ' A brother may place himself in loco parentis to his brother (g). And the artificial relationship may exist apart from ties of blood (h). The parental duty of providing for a child exists apart from minority (i). § 1112. The ground of this doctrine seems to be, that every such legacy is to be presumed as intended by the testator to be a portion for the child or grandchild, whether called so or not; and that, after- wards, if he advances the same sum upon the child's marriage, or on any other occasion, he does it to accomplish his original object, as a portion; and that, under such circumstances, it ought to be deemed an intended satisfaction or ademption of the legacy, rather than an intended double portion. And, where the sum advanced is less than the legacy, still it may fairly be presumed, that the testator, having acted merely in the discharge of a moral obligation, may, from a change of his own views, or of his own circumstances, be satisfied that the portion ought to be less (k). § 1113. Now, to say the least of it, this is extremely artificial reasoning, and such as an ingenuous mind may find it difficult to follow. Lord Eldon has so characterized it. After admitting it to be (d) Pym v. Lockyer, 5 M. & Cr. 20; Agnew v. Pope, 1 De G. & J. 49; Monte- fiore v. Guedalla, 1 De G. F. & J. 93; Leighton v. Leighton, L. E. 18 Eq. 459; In re Pollock, Pollock V. Worrall, 28 Ch. D. 552. (e) See Powys v. Mansfield, 3 M. & Cr. 359, 366, 367. (/) 18 Ves. 140, 154. (g) Monck v. Lord Monck, 1 Ball & B. 298. (h) In re Pollock, Pollock v. Pollock, 28 Ch. D. 552. (j) Booker v. Allen, 2 Euss. & M. 270; In re Lacon, Lacon v. Lacon, [1891] 2 Ch. 482. (fc) Pym V. Lockyer, 5 M. & Cr. 29; Hopwood v. Hopwood, 7 H. L. C. 728. 464 EQUITY JURISPEUDBNCE. [CH. XXIX. the unquestionable doctrine of the court, that, where a parent gives a legacy to a child, not stating the purpose with reference to which he gives it, the court understands him as giving it as a portion, he has strongly remarked: " And, by a sort of artificial rule, in the appUca- tion of which legitimate children have been very harshly treated, upon an artificial notion that the father is paying a debt of nature, and a sort of feeling, upon what is called a leaning against double portions, if the father afterwards advances a portion on the marriage of that child, though of less amount, it is a satisfaction of the whole or in part. And, in some cases, it has gone a length consistent with the principle, but showing the fallacy of much of the reasoning, that the portion, though much less than the legacy, has been held a satisfaction in some instances, upon this ground, that the father, owing what is called a debt of nature, is the judge of that provision by which he means to satisfy it; and although, at the time of making the will, he thought he could not dis- charge that debt with less than £10,000, yet by a change of his circum- stances and of his sentiments upon moral obligation, it may be satisfied by the advance of a portion of £5,000 " (Z). In addition to this strong language, it may be added, that courts of equity make out this sort of doctrine, not upon any clear intention of the test-ator anywhere expressed by him, but they first create the intention, and then make the parent suggest all the morals and equities of the case, upon their own artificial modes of reasoning, of wliich it is not too much to say, that scarcely any testator could ever have dreamed {m). § 1114. It has been supposed, that the origin of this particular doctrine is to be found in the civil law, and that it was transferred from hence into the equity jurisprudence of England (n). But Lord Thurlow has expressed a doubt, whether the doctrine of the civil law proceeds so far, and whether it is there taken up on the idea of a debt, or is not rather considered as a presumption, repellable by evidence (o). The language attributed to his lordship on this occasion seems not exactly to express his true meaning ; for, in the equity jurisprudence of England also, the presumption may be rebutted by evidence, as the same judge pointed out in a subsequent case (p). His meaning probably was, that the matter was a mere matter of presumption, arising from the whole circumstances of the will ; and that there was no such rule in the civil law as that, in English jurisprudence, namely, that, prima facie, such a portion, subsequently given, was an ademption of the legacy. No one can doubt that, in many cases, such a presumption may arise from the circumstances. As, for example, in a case put in the civil law. A (I) Ex parte Pye and Ex parte Duhost, 18 Vea. 151. (m) Grave v. Earl of Salisbury, 1 Bro. C. C. 425. (n) See ante, § 1108. (o) Grave v. Earl of Salisbury, 1 Bro. C. C. 425, 427. (p) Debeze v. Mann, 1 Cox, 346, s.c. 2 Bro. C. C. 165, 519. See also In re Scott, Langton v. Scott, [1908] 1 Ch. 1. § 1114 1116.] ELECTION AND SATISFACTION. 465 father by his will devised certain lands to his daughter, and afterwards gave the same lands to her as a marriage portion. It was held to be an ademption of the devise. " Filia legatorum non habet actionem, si ea, quae ei in testamento reliquit, vivus pater postea in dotem dederit " (g). So, it was held in the same law, to be a revocation of the legacy of a debt, if it was afterwards collected of the debtor by the testator in his lifetime. The like rule was applied, where, after the devise of specific property, the testator alienated in his lifetime. " Testator supervivens, si earn rem, quam reliquerat, vendiderit, extinguitur fideicommissum. " These cases are so obvious, as necessary and intentional ademption of the legacies, that they require no artificial rules of interpretation to expound the intent. And yet the civil law was so far fro-m favouring ademptions, that, even in these cases, it admitted proof that the tes- tator did not intend to adeem the legacy ; the rule being, " Si rem suam legaverit testator, posteaque earn alienaverit; si non adimendi animo vendidit, nihilominus deberi " (r). And again: " Si rem suam testator legaverit eamque necessitate urgente alienaverit, fideicommissum peti posse, nisi probetur, adimere ei testatorem voluisse. Probationem autem mutatffi voluntatis ab hseredibus exigendam " (g). These cases are sufficient to show how widely variant the doctrine on this subject is in the civil law from that which now prevails in equity. § 1115. There aj"e, however, in equity jurisprudence, certain estab- lished exceptions to this doctrine of constructive satisfaction, or ademp- tion of legacies, which deserve particular notice. In the first place, at one time it was thought not to apply to the case of a devisee of a mere residue ; for it was said, that a residue is always changing. It might amount to something or be nothing ; and therefore no fair presumption could arise of its being an intended satisfaction or ademption. This opinion was shaken in Lady Thynne v. Earl of Glengall (i), in which it was held, after a full review of all the authorities, that the bequest of a residue will, according to its amount, be a satisfaction of a portion, either in full, or pro tanto, and the earlier cases to the contrary were not approved. But in Montefiore v. GuedaUa (u) the question was again considered and the decisions reviewed, and the rule declared to be one of intention, whether, and how far, a residue shall be taken as adeemed by subsequent portions given, or settled, and that it should not depend upon the mere uncertainty of the residue, or upon slight differences between the trusts and the residue, and the trusts of the settlement. The same rule is applied to all questions of ademption. § 1116. Another exception to this doctrine of constructive ademp- tion of legacies may be gathered from the qualification already annexed (g) Cod. Lib. 6, tit. 37, 1. U. (r) Inst. Lib. 2, tit. 20, § 12; ibid. § § 10, 11. • is) Dig. Lib. 32, tit. 3, f. 11, § 12; Pothier, Pand. Lib. 34, tit. i, n. 8. (t) 2 H. L. C. 181. (u) 1 De G. F. & J. 93. E.J. 30 466 EQUITY JURISPKUDENCB. [CH. XXIX. to the enunciation of it in the preceding pages. It is there Hmited to the case of a parent, or of a person standing in loco parentis. In relation to parents, it is applicable only to legitimate children; and in relation to persons standing in loco parentis, it is also applicable generally to legitimate children only, unless the party has voluntarily placed himself in loco parentis to a legatee, not standing either naturally or judicially in that predicament. All other persons are, in contemplation of la\\-, treated as strangers to the testator (x). § 1117. But this doctrine of the constructive ademption of legacies has never been applied to legacies to mere strangers, unless under very peculiar circumstances, such as where the legacy is given for a par- ticular purpose, and a gift is afterwards, in the lifetime of the partj', made exactly for the same purpose, and for none other (y). Except in cases standing upon such peculiar circumstances, and which, there- fore, seem to present a very cogent presumption of an intentional ademption, the rule prevails, that a legacy to a stranger, legitimate or illegitimate, is not adeemed by a subsequent portion or advancement in the lifetime of the testator, without some expression of such intent manifested in the instrument, or by some writing accompanying the portion or advancement and charging the conscience of the bene- ficiary (2). § 1118. The reason commonly assigned for this doctrine is, that, as there is no such obligation upon such a testator to provide for the legatee, as subsists between a parent and child, no inference can arise, that the testator intended, by the subsequent gift or advancement, to perform any such duty in prensenti, instead of performing it at his death ; and there is no reason why a person may not be entitled to as many gifts as another may choose to bestow upon him. That this reasoning is extremely unsatisfactory, as well as artificial, may be unhesitatingly pronounced. It leads to this extraordinary conclusion, that a testator, in intendment of law, means to be more bountiful to- strangers than to his own children; that, by a legacy to his children, he means not to gratify his feelings or affections, but merely to perform his duty ; but that, by a legacy to strangers, he means to gratify his feelings, affections, or caprices, without the slightest reference to his duty. What makes the doctrine still more difficult to be supported upon any general reason- ing is, that grandchildren, brothers, sisters, uncles, aunts, nephews, and nieces, as well as natural children, are deemed strangers to the testator in the sense of the rule (unless he has placed himself towards them in loco parentis); and that they are in a better condition, not only than legitimate children, but even than they would be if the testator formally (x) Suisse V. Lord Lowther, 2 Hare, 424; affirmed 12 L. J. Ch. 315. See ante, § nil. (j/) Suisse V. Lord Lowther, 2 Hare, 424, affirmed 12 L. J. Ch. 315; Pankhurst v. Howell, L. E. 6 Ch. 136 ; In re Pollock, Pollock v. Worrall, 28 Ch. D. 552. (z) In re Shields, Corbould Ellis v. Dales, [1912] 1 Ch. 591. § lllV 1121.] ELECTION AND SATISFACTION. 467 acted in loco parentis. Considerations and consequences like these may well induce us to pause upon the original propriety of the doctrine. It is, however, so generally established, that it cannot be shaken, but by overthrowing a mass of authority, which no judge would feel himself at liberty to disregard (a). § 1119. The third and last class of cases to which we have alluded as connected with the doctrine of satisfaction, is, where a legacy is given to a creditor. And here, the general rule is, that where the legacy is equal to, or greater in amount than an existing debt, where it is of the same nature ; where it is certain, and not contingent ; and where no particular motive is assigned for the gift; in all such cases the legacy is deemed a satisfaction of the debt (b). The ground of this doctrine is, that a testator shall be presumed to be just before he is kind or generous. And, therefore, although a legacy is generally to be taken as a gift, yet, when it is to a creditor, it ought to be deemed to be an act of justice, and not of bounty in the absence of all counter- vailing circumstances, a-ocording to the maxim of the civil law, " Debitor non praesumitur donare." § 1120. Some of the observations which have been already made, apply, although with diminished force, to this class of cases. For, where a man has assets, sufficient both for justice and generosity, and where the language of the instrument imports a donation, and not a payment, it seems difficult to say why the ordinary meaning of the words should not prevail. Where the sum is precisely the same with the debt, it may be admitted, that there arises some presumption, and, under many circumstances, it may be a cogent presumption of an intention to pay the debt. But, where the legacy is greater than the debtj the same force of presumption certainly does not exist; and, if it is less than the debt, then (as we shall presently see) the presumption is admitted to be gone. § 1121. It is highly probable that this doctrine was derived from the civil law, where it is clearly laid down, but with limitations and qualifications in some respects different from those which are recognized in equity jurisprudence (c). Where the debt was absolutely due, and for the same precise sum, a legacy to the same amount was (a) Lindley, L.J., In re Lacon, Lacon v. Lacon, [1891] 2 Ch. 482, 490; In re Boby, Hewlett v. Newingion, [1908] 1 Ch. 71. Questions of another nature often arise, as to what constitutes an advancement of a child, within the meaning of that term in section 5 of Statute of Distributions (22 & 23 Chas. II. ch. 10). The principal cases on the subject will be found collected in 1 Mad. Pr. Ch. 507, 616. See Taylor V. Taylor, L. E. 20 Eq. 155, where the subject of advancement was elaborately dis- cussed by Sir G. Jessel, M.E., who held that an " advancement by portion " within the meaning of the, statute is a sum given by a parent to establish a child in life or to make a provision for a child. See also Edwards v. Freeman, 2 P. Will 436; Boyd v. Boyd, L. R. 4 Eq. 305; Leighton v. Leighton, L. E. 18 Bq. 458; and Hatfield v. Minet, 8 Ch. D. 136; In re Blockley, Blockley v. Blockley, 29 Ch. D. 258. (b) Talbott V. Duke of Shrewsbury, Prec. Ch. 394. (c) Pothiei, Pand. Lib. 34, tit. 3, nn. 80 to 84. 468 EQUITY JURISPRUDENCE. [CH. XXIX. deemed a satisiaction of it. But, if there was a difference even in the time of payment, between the debt and the legacy, the latter was not a satisfaction. " Sin autem, neque modo, neque tempore, neque conditione, neque loco, debitum, differatur, inutile est legatum " (d). And so, if the legacy was more than the debt, it seems that it was not a satisfaction. " Quotdens debitor creditori sue legaret, ita inutile esse legatum, si nihil interesset creditoris ex testamento potius agere, quam ex pristina obligatdone " [e). § 1122. But, although the rule, as to a. legacy being an ademption of a debt, is now well established in equity, yet it is deemed to have so little of a solid foundation, either in general reasoning, or as a just interpretation of the intention of the testator, that slight circum- stances have been laid hold of to escape from it, and to create exceptions to it (/). The rule, therefore, is not allowed to prevail, where the legacy is of less amount than the debt, even as a satisfaction pro tanto ; nor where there is a difference in the times of payment of the debt and of the legacy ; nor where they are of a different nature as to the subject-matter or as to the interest therein; nor where a particular motive is assigned for the gift; nor where the debt is contracted subsequently to the will ; nor where the legacy is contingent or uncertain ; nor where there is an express direction in the will for the payment of debts {g) ; nor where the bequest is of a residue (h) ; nor where the debt is a negotiable security (i) ; nor where the legacy is given to the creditor's wife (k) ; nor where the debt is upon an open and running accoxmt (Z). And as to a debt, strictly so called, there is no difference, whether it is a debt due to a stranger or to a child (m). § 1123. On the other hand, where a creditor leaves a legacy to his debtor, and either takes no notice of the debt, or leaves his intention doubtful, courts of equity will not deem the legacy as either necessarily prima facie evidence of an intention to release or extinguish the debt; but they will require some evidence, either on the face of the will, or aliunde to establish such an intention (n). (d) Dig. Lib. 30 (Lib. prim, de Leg.), tit. 1, f. 29; Inst. Lib. 2, tit. 20, § 14. (e) Pothier, Pand. Lib. 34, tit. 3, n. 33. (/) See In re Horlock, Calham v. Smith, [1895] 1 Ch. 516. ig) Talbott v. Duke of Shrewsbury, Prec. Ch. 894 ; Ghauncey's Case, 1 P. Wms. 408; Rowe v. Rowe, 2 De G. & Sm. 294; In re Huish, Bradshaw v. Huish, 48 Ch. D. 260; In re Horlock, Calham v. Smith, [1895] 1 Ch. 516. (h) Barrett v. Beckford, 1 Vea. Sen. 519; Devese v. Pontet, 1 Cox, 188; s.c. Prec. Ch. by Finch, 240, note. (t) Carr v. Eastabrooke, 8 Ves. 564. (k) Hall V. Hill, 1 Dru. & War. 94. (I) Rawlins v. Powell, 1 P. Will. 299. (m) Tolson v. Collins, 4 Ves. 483. The principal cases on this subject will be found collected in 2 Eoper on Legacies, by White, ch. 17, pp. 28 to 67; 2 Fonbl. Bq. B. 4, Pt. 1, ch. 1, § 5, note (1!); Goodfellow v. Burchett, 2 Vern. 298, Mr. Eaithby's note; Chancey's Case, 1 P. Will. 410, Mr. Cox's note; 2 Mad. Pr. Ch. 33 to 49. (n) Courtenay v. Williams, 3 Hare, 589; affirmed 15 L. J. Ch. 204. § 1122 — 1123ft.] ELECTION AND SATISFACTION. 469 § 1123a-. Closely allied to the subject of election and satisfaction in cases of legacies, is the doctrine as to what is called the cumulation of legacies, or when and under what circumstances legacies given by different instruments or wills are to be deemed cumulative or not. The general rule here is, that where legacies are given by different instruments, whether will and codicil or successive codicils, the presumptdon is, prima facie, that two legacies are intended, and that the last is not a mere repetition of the former ; nor will the fact that each legacy is for the same amount in money operate to repel the presumption that they are cumulative, there must be other circum- stances to repel it (o). As, for example, if the testator connects a motive with both, and that motive is the same, the double coincidence will induce the courts to believe that repetition and not accumu- lation is intended. A fortiori, where each instrument gives precisely the same thing, as a horse, or a coach, or a particular diamond ring : or the language shows by express declaration or natural implication, that the testator intends a mere repetition, the presumption of accumulation is completely repelled (p). (o) Hooley v. Hatton, 1 Bro. C. C. 390 n. ; Russell v. Dickson, i H. L. C. 293; Wilson V. O'Leary, L. E. 7 Ch. 448; Hubbard v. Alexander, 3 Ch. D. 738. (p) Hooley v. Hatton, 1 Bro. C. C. 390 n. ; Heming v. Clutterbuck, 1 Bligh. N. S. 479; Suisse v. Lord Lowther, 2 Hare, 424, 432; affirmed 12 L. J. Ch. 315. 470 EQUITY JURISPRUDENCE. [CH. XXX. CHAPTER XXX. APPLICATION OF PURCHASE-MONEY. § 1124. In this chapter the learned author discussed a question formerly of great importance, how far a receipt of the trustee exercising a power of sale operated as a complete discharge or whether the purchaser was bound to look to the due Application op Purchase- money. This subject, therefore, although it may equally apply to other cases of trusts, created inter vivos, may be conveniently treated in this place. The doctrine was hotly assailed by many eminent persons, and its inconveniences pointed out, the most glaring arising in cases of infancy, where the parties in interest are incapable of giving a valid assent to the receipt and application of the purchase-money by the trustee (a). The principle was intelligible enough and also soimd equity. The purchaser acquired the land with notice that it was burdened with a charge, for there was no personal remedy against him, and this land belonged to the beneficiary claiming under the will or settlement burdened only with the charge (b). The question that had to be determined was whether there existed an overriding power of disposition displacing the title of the beneficiary. § 1125. Tlie doctrine was not universally true, that a purchaser, having notice of a trust, was bound to see that the trust was in all cases properly executed by the trustee. As applied to the cases of sales, authorized to be made by trustees for particular purposes (which is the subject of our present enquiries), the doctrine was not absolute, that the purchaser was bound to see that the money raised by the sale was applied to the very purposes indicated by the trust. On the contrary, there were many qualificatdone and limitations of the doctrine in its actual application to sales both of personal and of real estate. § 1126. The best method of ascertaining the true nature and extent of these qualifioations and limitations will be by a separate consideration of them, as applied to each kind of estate, since the rules which govern them are, in some respects, dissimilar, owing to the greater power which a testator has over his real, than he has (a) Mr. Butler's note to Co. Litt. 290b, note (1), § 12 ; in Balfour v. Welland, 16 Ves. 156, Sir William Grant expressed his dissatisfaction with the doctrine. See also Sugden, Vendors and Purchasers, 9th ed., vol. 2, ch. 11, pp. 30 to 56. (fc) Davis (or Davies) v. Spurling, 1 Euss. & M. 64 ; s.c. Taml. 199. § 1124 — 1128.] APPLICATION OF PURCHASE-MONEY. 471 over his personal, estate. In regard to real estate, it is well known that, at the common law, it was not bound, even for the specialty debts of the testator, except in the hands of his heir if specially bound ; although, by 3 W. & M. ch. 14, it was made liable for such debts in the hands of his devisee. But, as to simple contract debts, until 1833, the real estate of deceased persons was not liable generally for the payment of any such debts. The statute of 3 & 4 William IV. o. 104, had made all such real estate liable, as assets in equity, for the payment of all debts, whether due on simple contract or by specialty. But, as to personal estat«, it was at the commion law, and still remains, directly liable to the payment of all debts; or as it is commonly expressed, it goes to the executors, as assets for creditors, to be applied in a due course of administration. It is, therefore, in a strict sense, a trust fund for the payment of debts generally (c). We shall presently see, how this consideration bears upon the topic now under discussion. § 1127. The general principle of courts of equity in regard to the duty of purchasers (not especially exempted by any provision of the author of the trust), in cases of sales of property, or charges on property under trusts (for there is no difference, in point of law, between sales and charges), to see to the application of the purchase- money, was this: that, wherever the trust or charge was of a defined and limited nature, the purchaser must himself have seen that the purchase-money was applied to the proper discharge of the trust; but, wherever the trust was of a general and unlimited nature, he need not have seen to it. Thus, for example, if a trust were created to sell for the payment of a portion, or of a mortgage, there, the purchaser must have seen to the application of the purchase-money to that specified object. If, on the other hand, a trust were created, a devise made, or a charge established, by a party for the payment of debts generally, the purchaser was exempted from any such obligation (d). § 1128. Let us, in the first place, consider the doctrine, in its application to personal estate, including therein leasehold estates, which are, equally with personal chattels, subject to the payment of debts. As the personal estate was liable for the. payment of the debts of the testator generally, the purchaser of the whole, or any part of it, never was, upon the principle already stated, bound to see that the purchase-money was applied by the executor to the discharge of the debts (e); for the trust was general and unlimited, it being for the payment of all debts. It is true, that there was an apparent exception to the rule; and that is, that he must have been a bond fide purchaser, without notice, that , there were no debts; and he (c) Elliot V. Merriman, Barnard, ch. 78. (d) Elliot v. Menyman, Barnard, ch. 78; Braithwaite v. Britain, 1 Keen, 206. (e) Elliot V. Merryman, Barnard, ch. 78. 472 EQUITY JURISPRUDENCE. [CH. XXX. must not have colluded with the executor in any wilful misapplication of the assets (/). But this proceeded upon the ground of fraud, which is of itself sufficient to vacate any transaction whatsoever. § 1129. It made no difference in the application of this general doctrine as to the personal estate, that the testator had directed his real estate to be sold for the payment of his debts, whether he specified the debts or not ; or that he had made a specific bequest of a part of his personal estate for a particular purpose, or to a particular person, although such specific bequest were known to the purchaser, if he had no reason to suspect any fraudulent purpose (g). The ground of this doctrine was, that, otherwise, it would have been indispensable for a person, before he could become the purchaser of any personal estate, specifically bequeathed, to come into a court of equity to have an account taken of the assets of the testator, and of the debts due from him, and in order to ascertain whether it was necessary for the executor to sell; which would be a most serious inconvenience, and greatly retard the due settlement of estates (k). § 1130. In the next place, in regard to real estate. Where there was a devise of real estate for the payment of debts generally, or the testator charged his debts generally upon his real estate, and the money was raised by the trustee by sale or mortgage, the same rule applied as in cases of personalty, that the purchaser or mortgagee was not bound to look to the application of the purchase-money; and for the same reason, namely, the unlimited and general nature of the trust, and the difficulty of seeing to the application of the purchase or mortgage money, without an account of all the debts and assets under the superintendence of courts of equity (i). § 1131. In the case of sales of real estate for the payment of debts generally, the purchaser was not only not bound to look to the application of the purchase-money ; but, if more of the estate were sold than was sufficient for the purposes of the trust, it would not be to his prejudice. Nor would it make any difierence, in cases of this sort, whether the testator charged both his personal and real estate with payment of his debts, or the real only; for, ordinarily the personal estate, unless specially exempted, is the primary fund ; and, if exempted, still the charge on the real estate was general and unlimited. Nor would it make any difference, whether the devise directed the sale of the real estate for the payment of debts, or only charges the real estate therewith. Nor would it make any difference, that the trust was only to sell, or was a charge for so much as the personal estate is deficient to pay the debts. Nor would it make any (/) Hill V. Simpson, 7 Ves. 152; Watkins v. Cheek, 2 Sim. & St. 199. ig) Hill V. Simpson, 7 Ves. 152; Co. Litt. 290 b, Butler's note (1), § 12. (h) Ewer v. Corbet, 2 P. Will. 148; Langley v. Earl of Oxford, Ambler, 17. (») Elliot V. Merryman, Barnard, ch. 78; Robinson v. Lowater, 5 De G. M. & G. 272. § 1129 1135.] APPLICATION OF PUHCHASE-MONEY. 473 difference, that a specific part of the real estate was devised for a particular p'urpose or trust, if the whole real estate were charged with the payment of debts generally by the will (fc). If, however, the trustees had only a power to sell and not an estate devised to them, then, unless the personal estate were deficient, the power to sell did not arise (I). § 1132. But where in cases of real estate, the trust was for the payment of legacies, or of specified or scheduled debts, the rule was different; for they were ascertained; and the purchaser must have seen, and, in the view of the court of equity, he was bound to have seen, that the money was actually applied in discharge of them (m). On the other hand, cases occurred, where the devise was for the payment of debts generally, and also for the payment of legacies, and then the trust became a mixed one. In such a case, the purchaser was not bound to see to the application of the purchase-money ; because to have held him liable to see the legacies paid, would, in fact, have involved him in the necessity of taking an account of all the debts and assets (n). § 1133. Where the time directed by the devise for a sale of the real estate had arrived, and the persons entitled to the money were infants, or were unborn; there, the purchaser was not bound to see to the application of the purchase-money, because he might otherwise have been impKoated by a trust of long duration (o). But, if an estate were charged with a sum of money, payable to an infant at his majority ; there, the purchaser was bound to see the money duly paid on his arrival at age ; for the estate would remain chargeable with it in his hands (p). § 1134. Where the trusts were defined, and yet the money was not merely to be paid over to third persons, but was to be applied by the trustees to certain purposes, which required, on their part, time, deliberation, and discretion, it seems that the purchaser was not bound to see to the due application of the purchase-money; as, where it was to pay all debts which should be ascertained within eighteen months after the sale ; or where the trustees were to lay out the money in the funds, or in the purchase of other lands upon certain trusts (g). § 1135. These are some of the most important and nice distinctions which had been adopted by courts of equity upon this intricate topic ; (/c) Co. Litt. 290 b, Butler's note (1), § 12; Shaw v. Borrer, 1 Keen, 559; Ball V. Harris, i M. & Cr. 164; Corser v. Cartwright, L. E. 7 H. L. 731. (I) Shaw V. Borrer, 1 Keen, 559. (m) Elliot V. Merryman, Barnard, eh. 78; Eland v. Eland, 4 M. & Cr. 420; John- son V. Rennet, 3 Myl. & K. 624. (n) Forbes v. Peacock, 1 Ph. 717; Corser v. Cartwright, L. E. 7 H. L. 731. (o) Breedon v. Breedon, 1 Euss. & M. 413; Gillibrand v. Goold, 5 Sim. 149. (p) Dickinson v. Dickinson, 3 Bro. C. C. 19. (g) Balfour v. Wetland, 16 Ves. 151; Locke v. Lomas, 5 De G. & Sm. 326. 474 EQUITY JURISPRUDENCE. [CH. XXX. and they lead strongly to the conclusion, to which not only eminent jurists, but also eminent judges, have arrived, that it would have been far better to have held in all cases, that the party, having the right to sell, had also the right to receive the purchase-money without any further responsibility on the part of the purchaser, as to its application. § 1135a. The view taken in the text that the purchaser from a trustee ought not to be saddled with the responsibility of seeing that the purchase-money was properly applied, was adopted by the Legislature in 1860 by an enactment now embodied in section 20 of the Trustee Act, 1893 (56 & 57 Vict. c. 53), which provides that " the receipt in writing of any trustee for any money payable to him under any trust or power shall effectually exonerate the person paying the same from seeing to the application, or from being answerable for any loss or misapplication thereof." And by section 40 of the Settled Land Act, 1882, it is provided that the receipt in writing of the trustees of a settlement, or where one trustee is empowered to act of one trustee or of the personal representative or representatives of the last surviving or continuing trustee for any money or securities paid or transferred to the trustees, trustee, representatives, or representative as the case may be, effectually discharges the payer or transferor therefrom and from being bound to the application or being answerable for any loss or misapplication thereof, and, in case of a mortgagee or other person advancing money, from being concerned to see that any money advanced by him is wanted for any purpose of the Act or that no more than is wanted is raised. § 1135a— 1138.] CHARITIES. 475 CHAPTER XXXI. CHARITIES. § 1136. It is in oases of wills also that we most usually find provisions for public Charities ; and to the consideration of this subject, constituting, as it does, a large and peculiar source of equity jurisdiction under the head of trusts, we shall now proceed. § 1137. It is highly probable that the rudiments of the law of charities were derived from the Roman or civil law (a). One of the earliest fruits, of the Emperor Constantine's real or pretended zeal for Christianity was a permission to his subjects to bequeath their property to the Church (6). This permission was soon abused to so great a degree as to induce the Emperor Valentinian to enact a mortmain law, by which it was restrained (c). But this restraint was gradua,lly relaxed; and in the time of Justinian it became a fixed maxim of Eoman jurisprudence, that legacies to pious uses (which included all legacies destined for works of piety or charity, whether they related to spiritual or to temporal concerns) were entitled to peculiar favour, and to be deemed privileged testaments (d). § 1188. Thus, for example, a legacy of ornaments for a church, a legacy for the maintenance of a clergyman to instruct poor children, and a legacy for their sustenance, were esteemed legacies to pious and charitable uses (e). In all these cases the bequests had their (a) In Lord Chief Justice Wilmot's notes of his opinions (pp. 53, 54), it_is said : " Donations for public purposes were sustained in the civil law, and applied when illegal cy-pres to other purposes, one hundred years before Christianity was the religion of the Empire." And for this is cited Dig. Lib. 33, tit. 2, De Usu et Usufruc. Legatorum, §§ 16, 17. (b) Cod. Theodos. Lib. 16, tit. 2, ,1. 4. (c) Ibid. 1. 20. To those who may not be familiar with the term " mortmain," it may be proper to state that the statutes in England, which prohibit corporations from taking lands by devise, even for charities, except in certain special cases, are generally called the Statutes of Mortmain, mortuA manu, for the reason of which appellation Sir Edward Coke offers many conjectures. But (says Mr. Justice Black- stone, 1 Black. Comm. 479), there is one which seems more probable than any that he has given us, namely, that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law ; land, therefore, holden by them might, with great' propriety; be said to be held in mortud manu. The word is now commonly employed to designate all prohibitory laws which limit, restrain, or annul gifts, grants, or devises of lands and othfer corporeal hereditaments to charitable uses. See, on this subject, 2 Black. Comm. 268 to 274. (d) 2 Domat, Civil Law, B. 4, tit. 2, § 6. (e) 2 Domat, B. 4, tit. 2, § 6. 476 EQUITY JURISPRUDENCE. [CH. XXXI. charitable motives, independent of the consideration of the merit of the particular legatees. But other legacies, although not of a pious or charitable nature, but yet for objects of a pubhc nature, or for a general benefit, were also deemed entitled to the like encouragement and protection. Thus, for example, a legacy destined for some public ornament, or for some public- use, such as to build a gate for a city or for the embellishment and improvement of a public street or square, or as a prize to persons excelling in an art or science, vi^as deemed a privileged legacy, and of complete validity (/). " Si quid relictum sit civitatibus, omne valet, sive in distributionem relin- quatur, sive in opus, sive in alimenta, vel in eruditionem puerorum, sive quid aliud " (g). Again: " Civitatibus legari potest etiam, quod ad honorem omatumque civitatis pertinet. Ad omatum ; puta, quod instruendum forum, theatrum, stadium, legatum fuerit. Ad honorem ; puta, quod ad munus edendum, venationemve, ludos scenicos, ludos Circenses, rehctum fuerit; aut, quod ad divisionem singulorum civium vel epulam, relictum fuerit. Hoc amplius, quod in alimenta infirmse aetatis (puta senioribus, vel pueris, puellisque), relictum fuerit; ad honorem civitatis pertinere respondetur " (h). § 1139. The construction of testaments of this nature was most liberal ; and the legacies were never permitted to be lost, either by the uncertainty or failure of the persons or objects for which they were destined. Hence, if a legacy was given to the church, or to the poor generally, without any description of what church, or what poor, the law sustained it, by giving it in the first case to the parish church of the place where the testator hved; and in th'e latter case to the hospital of tihe same place; and if there was none, then to the poor of the same parish (i). The same rule was applied where, instead of a bare legacy, the testator appointed as his heir, or devisee, or legatee, the church of the poor. It was construed to belong to the church, or the poor of the parish, where he resided (k). So, if a legacy were given to God (as seems sometimes to have been the usage in the time of Justinian), it was construed to be a legacy to the church of the parish where the testator resided (I). § 1140. If the testator himself had designated the person by whom the charity was to be carried into effect, he was compellable to perform it. If no person was designated, the bishop or ordinary of the place of the testator's nativity might compel its due execution (m). And in all cases where the objects were indefinite, the legacy was carried into effect under the direction of the judge who had cognizance (/) Ibid. (g) Dig. Lib. 30, tit. 1, f. 117. (h) Ibid. f. 122. (t) 2 Domat, B. 4, tit. 2, § 6, art. 1, p. 169; Perriere, Diet. h. t. (fc) Ibid. art. 4, p. 169. il) Ibid. ; Novelise, 141, cap. 9. (m) 2 Domat, B. 4, tit. 2, § 6, art. 5, 169; Cod. Lib. 1, tit. 3, 1. 28, § 1. § 1139—1142.] CHARITIES. 477 of the subject {n). So, if a legacy was given for a definite object, which either was previously accomplished, or which failed, it was, neverthe- less, held valid, and applied under judicial discretion to some otlier object (o). Thus, for example, if the testator had left a legacy for building a parish church, or an apartment in a hospital, and before his death the church or apartment had been built, or it was not necessary or useful, the legacy did not become a nullity, but it was applied by the proper functionary to some other purposes of piety or charity (p). And we shall presently see, that the like doctrine has been carried to a great extent in the jurisprudence of England on the same subject. § 1141. The high authority of the Eoman law, coinciding with the religious notions of the times, could hardly fail to introduce these principles of pious legacies into the common law of England ; and the zeal and learning of the ecclesiastical tribunals must have been constantly exercised to enlarge their operation. Lord Thurlow (g) was clearly of opinion, that the doctrine of charities grew up from the ciyU law; and Lord Eldon (r), in assenting to that opinion, has judiciously remarked, that at an early period the ordinary had the power to apply a portion of every man's personal estate to charity, and when, afterwards, the statute compelled a distribution, it is not impossible that the same favour should have been extended to charity in wills, which, by their own force, purported to authorize such a distribution. Be the origin, however, what it may, it cannot be denied that many of the privileges attached to pious legacies have been for ages incorporated into the English law (s). Indeed, in former t'mes, the construction of charitable bequests was pushed to the most alarming extravagance. And although it has been in a great measure checked in later and more enlightened times, there are still some anomalies in the law on this subject which are hardly reconcilable with any sound principles of judicial interpretation, or with any proper exercise of judicial authority. § 1142. The history of the law of charities, prior to the statute of the 43rd of Elizabeth, ch. 4, which is emphatically called the Statute of Charitable Uses (<), is extremely obscure. It may, nevertheless, be useful to endeavour to trace the general outline of that history, since it may materially assist us in ascertaining how far the present (n) Ibid. ; Swinburne, Pt. 1, § 16, p. 104. (o) 2 Domat, B. 4, tit. 2, § 6, art. 6, p 170. (p) Ibid. (g) White v. White, 1 Bro. C. C. 12. • (r) Moggridge v. Thackwell, 7 "Ves. 36, 69; Mills v. Farmer, 1 Meriv. 55, 94, 95. is) Swinb. on Wills, Pt. 1, § 16, pp. 66 to 73. (t) This statute has been repealed by the Mortmain and Charitable Uses Act, 1888, but it is expressly provided by section 13, sub-s. 2 of that statute that only those objeets are to be deemed charitable which are so defined in the statute of Elizabeth. 478 EQUITY JURISPEUDBNCB. [CH. XXXI. authority and doctrines of the Court of Chancery, in regard- te charitable uses, depend upon that statute; and how far they arise from its general jurisdiction, as a court of equity, to enforce trusts, and especially to enforce trusts to pious uses. § 1143. It is not easy to arrive at any satisfactory conclusion on this head. Until a comparatively recent period, and, indeed, until the report of the Commissioners on the Public Eecords, published by Parliament in 1827 (to which our attention will be more directly drawn hereafter), few traces could be found in the volumes of printed reports, or otherwise, of the exercise of this jurisdiction, in any shape, prior to the statute of Elizabeth. The principal, if not the only cases then to be found, were decided in the courts of common law, and generally turned upon the question, whether the uses were void or not, within the statutes against superstitious uses. One of the earliest cases is Porter's Case (m); which was a devise of lands, devisable by custom, to the testator's wife, in fee, upon condition that she should assure the lands, devised for the maintenance and con- tinuance of a free school, and certain almsmen and almswomen; and it appeared that the heir had entered for a condition broken, and conveyed the same lands to the queen. It was held, that the use, being for charity, was a good and lawful use, and not void by the statutes against superstitious uses; and that the queen might well hold the land for the charitable uses. Lord Loughborough, in commenting on this case, observed: " It does not appear, that this court (that is, chancery), at that period, had cognizance upon informa- tions for the establishment of charities. Prior to the time of Lord Ellesmere {x), as far as the tradition of the times immediately following goes, there were no . such informations as that upon which 1 am now sitting (that is, an information to establish a charity); but they made out their case, as well as they could, by law " (y). § 1144. So, that the result of Lord Loughborough's researches on this point was that, until about the period of enacting the statute of Elizabeth, bills were not filed in chancery to establish charities It is remarkable, that Sir Thomas Egerton and Lord Coke, who argued Porter's Case for the queen, although they cited many antecedent cases, refer to none which were not decided at law. And the doctrine established by Porter's Case is, that if a feoffment is made to a general (tt) 1 Co. 22 b, in 34 & 35 Eliz. See also a like decision in Partridge v. Walker, cited 4 Co. 116 b ; Martiiale v. Martin, Co. Bliz. 288 ; Thetford School, 8 Co. 130. {x) Sir Thomas Egerton was made Lord Chancellor in 39 Eliz. 1696, and was created Lord Ellesmere 1 James I. 1603. {y) Att.-Gen. v. Bowyer, 3 Ves. 714, 726. In Eyre v. Countess of Shaftesbury, 2 P. Will. 119, Sir Joseph Jekyll, M.E., said : " In like manner, in case o£ charity, the king has, pro bono ■publico, an original right to superintend the case thereof; so that, abstracted from the statute of Elizabeth relating to charitable uses, and ante- cedent to it as well as Since, it has been every day's practice to file informations in chancery-, in the attorney-general's name; forthe establishment of charities." Post, § 1148; Att.-Gen. v. Brereton, Ves. 425, 427. § 1143—1147.] CHARITIES. 479 legal use, not superstitious, although indefinite, although no person is in esse, who could be the cestui que use, yet the feofifment is good; and if the use is bad, the heir of the feoffor will be entitled to enter, the legal estate remaining in him. § 1145. The absence, therefore, of all authority derived from any known antecedent equity decisions upon an occasion when they would probably have been used, if any existed, did certainly seem very much to favour the conclusion of Lord Xioughborough. And in the absence of any such known antecedent decisions, it was not a rash conjecture, for it would be but a conjecture, that Porter's Case, having established that charitable uses, not superstitious, were good at law, the Court of Chancery, in analogy to the other cases of trusts, immediately afterwards held the feoffees to such uses accountable in equity for the due execution of them ; and that the inconveniences felt in resorting to this new and anomalous proceeding, from the indefinite nature of some of the uses, gave rise, within a few years, to the statute of 43 Elizabeth, ch. 4 {z). § 1146. This view might also have some tendency to reconcile the language of Lord Loughborough with that of an opposite character, used upon other occasions by other chancellors and judges, in reference to the jurisdiction of chancery over charities (a), as it would show, that in cases of feoffments to charitable uses, bills to establish those uses might in fact have been introduced, or brought into familiar praetice, by Lord Ellesmere, about five years before the statute of Elizabeth. This would be quite consistent with the fact that such bills were not sustained where the donation was to charity generally, and no trust estate was interposed, and no legal estate was devised, to support the uses. It is very certain, that, at law, devises to charitable uses generally, without interposing a trustee, and devises to a non-existing corporation, or to an unincorporated society, would have been, and in fact were, held utterly void for want of a person having a sufficient capacity to take as devisee (b). The statute of Elizabeth, in favour of charitable uses, cured this defect (c), and. provided (as we shall hereafter have occasion more fully to consider) a new mode of enforcing such uses by a commission under the direction of the Court of Chancery. § 1147. Shortly after this statute, it becaime a matter of doubt, whether the Court of Chancery could grant relief by original bill in cases within that statute, or whether the remedy was not confined to the (z) There was, in fact, an Act passed, respecting charitable uses, in 39 Eliz. ch. 9; but it was repealed by the Act of 43 Eliz. ch. 4. Com. Dig. Charitable Uses, N.' 14. (a) See ante, § 1143, note; post, § 1148. (b) Anon., 1 Ch. Cas. 207; Att.-Gen. v. Tancred, 1 W. Bl. 90; s.o. Ambler, 351; Gollison's Case, Hob. 136; s.c. Moore, 888; Widmore v. Woodruffe, Ambler, 636, 640; Com. Dig. Devise, K. (c) Com. Dig. Charitable Uses, N. 11; Com. Dig. Chancery, 2 N. 10. 480 EQUITY JURISPRUDENCE. [CH. XXXI. proceeding by commission under the statute. That doubt remained until the reign of Charles II., when it was settled in favour of the juris- diction of the court by original bill (d). On one occasion, when this very question was argued before him, Lord Keeper Bridgman declared, " That the king, as pater patriae, may inform for any public benefit for charitable uses, before the statute of 30 [43] of Elizabeth for Charitable Uses. But it was doubted the court could not by bill take notice of that statute, so as to grant a relief according to that statute upon a bill " (e). On another occasion soon afterwards, where the devise was to a college, and was held void at law by the judges, for a misnomer, on a bill to establish the devise as a charity, the same question was argued; Lord Keeper Pinch (afterwards Lord Nottingham) held the devise good, as an appointment under the statute of Elizabeth; and he "decreed the charity, though before the statute no such decree could have been made " (/). It would seem, therefore, to have been the opinion of Lord Nottingham, that an original bill would not, before the statute of Elizabeth, lie to establish a charity, where the estate did not pass at law to which the charitable uses attached. § 1148. On the other hand, the language of other judges leads to the conclusion that antecedent to the statute of Elizabeth, the Court of Chancery did, in virtue of its inherent authority, exercise a large jurisdiction in cases of charities. In Eyrev. Shaftesbury (3), Sir Joseph Jekyll said, in the course of his reasoning on another point: " In like manner, in the case of charity, the king, pro bono publico, has an original right to superintend the care thereof, so that, abstracted from the statute of Elizabeth relating to charitable uses, and antecedent to it as well as since, it has been every day's practice, to file informa- tions in chancery, in the attorney-general's name, for the estabUshment of charities." In the Corporation of Burford v. Lenthall (h), Lord Hardwicke is reported to have said : ' ' The courts have mixed the juris- diction of bringing informations in the name of the attorney-general with the jurisdiction given them under the statute of Elizabeth, and proceed either way, according to their discretion." § 1149. In a subsequent case (i), which was an information filed by the attorney-general against the master and governors of a school, calling them t-o account in chancery, as having the general superinten- dency of all charitable donations, the same learned chancellor, in dis- (d) Att.-Gen. v. Newman, 1 Ch. Cas. 157; s.c. 1 Lev. 284; Eyre v. Countess of Shaftesbury, 2 P. Will. 119; Att.-Gen. v. Brereton, 2 Ves. 425, 427; West v. Knight, 1 Ch. Cas. 134; Anon., 1 Ch. Cas. 267; 2 Fonhl. Eq. B. 3, pi. 2, ch. 1, § 1; Parish of St. Dunstan v. Beauchamp, 1 Ch. Cas. 193. (e) Att.-Gen. v. Newman, 1 Ch. Cas. 157. (/) Anon., 1 Ch. Cas. 267. ((7) 2 P. Will. 103, 118. Cited also 7 Ves. Jun. 63, 87 ; and by Lord Justice Wilmot, in Wilmot's Notes of Cases, 24. (h) 2 Atk. 660 (1743). (i) Att.-Gen. v. Middleton, [1751] 2 Ves. Sen. 327. § 1148—1151.] CHAEITIES. 481 cussing the general jurisdiction of the Court of Chancery on this head, and distinguishing the case before him from others, because the trustees or governors were invested with the visitatorial powers, said : " Consider the nature of the foundation. It is at the petition of two private persons, by charter of the Crown, which distinguishes this ease from cases of the statute of Elizabeth on Charitable Uses, or cases before that statute in which this court exercised jurisdiction of charities at large. Since that statute, where there is a charity for the peculiar purposes therein, and no charter given by the Crown to found and regulate it, unless a particular exception out of the statute, it must be regulated by commission. But there may be a bill by information in this court, founded on its general jurisdiction; and that is from necessity; because there is no charter to regulate it, and the king has a general jurisdiction of this kind. There must be somewhere a power to regulate. But where there is a charter, with proper powers, there is no ground to come into this court to establish that charity; and it must be left to be regulated in the manner the charter has put it, or by the original rules of law. Therefore, though I have often heard it said in this court, if an information is brought to establish a charity, and praying a particular relief and mode of regulation, and the party fails in that particular relief; yet that information is not to be dismissed, but there must be a decree for the establishment (k). That is always with this distinction, where it is a charity at large ; or in its nature, before the statute of charitable uses ; but not in the case of charities incorporated and established by the king's charter, under the great seal, which are established by proper authority allowed." And again : " It is true that an information in the name of the attorney-general, as an officer of the Crown, was not a head of the statute of Charitable Uses, because that original jurisdiction was exercised in this court before. But that was always in cases now provided for by that statute; that is, charities at large, not properly and regularly provided for in charters of the Crown." § 1150. It was manifestly, therefore, the opinion of Lord Hardwicke, that, independently of the statute of Elizabeth, the Court of Chancery did exercise original jurisdiction in cases of charities at large, which he explains to mean charities not regulated by charter. But it does not appear that his attention was called to discriminate between such as could take eSect at law, by reason of the inter- position of a feofiee or devisee, capable of taking, and those where the purpose was general charity, without the interposition of any trust to carry it into effect. The same remark applies to the dictum by Sir Joseph Jekyll. § 1151. In a still later case (l), which was an information to establish a charity, and aid a conveyance in remainder to certain (k) S.p. Att.-Gen. v. Brereton, 2 Ves. Sen. 425, 427 ; post, § 1163. (Z) Att.-Gen. v. Tancred, 1 W. Bl. 90; s.c. Ambler, 351; 1 Eden, 10. E.J. 31 482 EQUITY JURISPRUDENCE. [CH. XXXI. officers of Christ's College to certain charitable uses, Lord Keeper Henley (afterwards Lord Northington) is reported to have said : ' ' The conveyance is admitted to be defective, the use being limited to certain officers of the corporation, and not to the corporate body ; eind, there- fore, there is a want of proper persons to take in perpetual succession. The only doubt is, whether the court shall supply this defect for the benefit of the charity, under the statute of Elizabeth. And I take the uniform rule of this court, before, at, and after the statute of Elizabeth, to have been, that, where the uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses. Thus, though devises to corpora- tions were void under the statute of Henry VIII., yet they were always considered as good in equity, if given to charitable uses." And he then proceeded to declare, that he was obUged, by the uniform course of precedents, to assist the conveyance; and, therefore, he established the conveyance expressly under the statute of Elizabeth. § 1152. There is some reason to question, whether the language here imputed to Lord Northington is minutely accurate. His lordship manifestly aided the conveyance, as a charity, in virtue of the statute of Elizabeth. And there is no doubt, that it has been the constant practice of the court, since that statute, to aid defects in conveyances to charitable uses. But it is by no means clear that such defects were aided, before that statute. The old cases, although arising before the statute, were deemed to be within the reach of that statute by its retrospective language ; and were expressly decided on that ground (m). The very case put of devises to corporations, which are void under the statute of Henry VIII., and are held good solely by the statute of Elizabeth, shows that his lordship was looking to that statute; for it is plain, that a devise, void by statute, cannot be made good upon any principles of general law. What, therefore, is supposed to have been stated by him, as being the practice before the statute, is probably, if not founded in the mistake of the reporter, an inadvertent statement of the learned chancellor. The same case is reported in another book, where the language reported to have been used by him is: " The constant rule of the court has always been, where a person has a power to give, and makes a defective conveyance to charitable uses, to supply it as an appointment; as in Jesus College, Collison's Case in Hobart, 136 " {n). Now, OoUison's Case was expressly held to be sustainable, only as an appointment under the statute of Elizabeth ; and this shows that the language of his lordship was probably meaat to be limited to cases governed by that statute. § 1153. In a more recent charity case. Sir Arthur Piggott in (to) Collison's Case, Hob. 136; s.c. Moore, 888; id. 822; Sir Thomas Middleton's Case, Moore, 889; Rivett's Case, Moore, 890, and the cases cited in Eaithby's note to Att.-Gen. v. Ryre, 2 Vem. 453; Duke on Charit. 74, 77, 83, 84; Bridg. on Charit. 366, 370, 379, 380; Duke on Charit. 105 to 113. (n) Ambler, 351. § 1152— 1154a.] CHARITIES. 483 argument said : ' ' The diSerence between the case of individuals and that of charities is founded on a principle which has been estabUshed ever since the statute of Charitable Uses, in the reign of Elizabeth, and has been constantly acted upon from those days to the present." Lord Eldon adopted the remark, and said: " I am fully satisfied as to all the principles laid down in the course of this argument, and to accede to them. all. ' ' His lordship then proceeded to discuss the most material of the principles and cases from the time of Elizabeth, and built his reasoning, as indeed he had built it before, upon the sup- position, that the doctrine in chancery, as now established, rested mainly on that statute (o). § 1154. Such were the principal cases, or at least the principal cases which my own researches had brought to my notice at the time when the present work was first published, wherein the jurisdiction of chancery over charities, antecedent to the statute of Elizabeth, had been directly or incidentally discussed. The circumstance that no cases, prior to that time, could then be found in equity jurisprudence ; the tradition that had passed down to our own times, that original bills to establish charities were first entertained in the time of Lord Ellesmere ; the fact, that the cases immediately succeeding that statute, in which devises, void at law, were held good in equity as charities, might have been argued and sustained upon the general jurisdiction of the court, if it then existed ; and yet were exclusively argued and decreed upon the footing of that statute ; these facts and circumstances did certainly seem to afford a strong presumption that the jurisdiction of the court to enforce charities, where no trust is interposed, and where no devisee is in esse, and where the charity is general and indefinite, both as to persons and objects, mainly rests upon the constructions (whether ill or well founded, is now of no consequence) of the statute of Elizabeth. § 1154a. This subject has undergone a more full and elaborate consideration. Lord Eldon, in a case calling for an expression of his opinion upon the point in 1826, took occasion to observe: " It may not be quite clear that these instruments, originally void, were held to be valid merely by the efiect of the 43rd of Elizabeth. It might have been supposed that there was in the court a jurisdiction to render effective an imperfect conveyance for charitable purposes; and the statute has, perhaps, been construed with reference to such, the supposed jurisdiction of this court; so that it was not by the effect of the 43rd Elizabeth alone, but by the operation of that statute on a supposed antecedent jurisdiction in the court, that void devises to charitable purposes were sustained. Out of that supposed jurisdiction this construction of the statute may have arisen " (p). In 1834, in (o) Mills V. Farmer, 1 Meriv. 55, 86, 94, 100; Moggridge v. Thackwell, 7 Ves. 36; Att.-Gen. v. Bowyer, 3 Ves. 7U, 726. (p) Att.-Gen. v. Skinners' Co., 2 Euss. 407,. 420. 484 EQUITY JURISPRUDENCE. [CH. XXXI. the case of the Brentwood Grammar School, a charity founded in the reign of Philip and Mary, came under the consideration of Sir John Leach, the Master of the EoUs, and it then appeared that the charity was mainly to found and endow a grammar school at Brentwood, and was established by a decree of the Court of Chancery as early as the 12th of Elizabeth, although it included also a provision for the support of " five poor folks in Southweald " ; and Sir John Leach, upon the bill before him for the establishment of a proper scheme for the charities, affirmed the original decree (q). Lord Eedesdale, in a very important case before the House of Lords, in 1827, expressed himself to the following effect: " We are referred to the statute of Elizabeth, with respect to charitable uses, as creating a new law upon the subject of charitable uses. That statute only created a new jurisdiction, it created no new law; it created a new and ancillary jurisdiction, a jurisdiction borrowed from the elements which I have mentioned ; a jurisdiction created by a commission to be issued out of the Court of Chancery to enquire whether the funds given for charitable purposes, had or had not been misapplied, and to see to their proper application ; but the proceedings of that commission were made subject to appeal to the Lord Chancellor, and he might reverse or affirm what they had done, or make such order as he might think fit for reversing the controlling jurisdiction of the Court of Chancery, as it existed before the passing of that st^atute; and there can be no doubt that, by information by the attorney-general, the same thing might be done. . . . While proceedings under that statute were in common practice (as appears in that collection which is called Duke's Charitable Uses) you will find it stated that in certain cases, although a com- mission might issue under the statute, an information by the attorney- general was the better remedy. In process of time, indeed, it was found that the commission of charitable uses was not the best remedy, and that it was better to resort again to the proceedings by way of information in the name of the attorney-general. The right which the attorney-general has to file an information is a right of prerogative ; the king, as purens patrise, has a right, by his proper officer, to call upon the several courts of justice, according to the nature of their several jurisdictions, to see that right is done to his subjects who are incompetent to act for themselves, as in the case of charities and other cases; the case of lunatics, where he has also a special prerogative tO' take care of the property of a lunatic, and where he niay grant the custody to a person who, as a committee, may proceed on behalf of the lunatic, or where there is no such grant the attorney-general may proceed by his information " (r). (q) Att.-Gen. v. Brentwood School, 1 Myl. & Z. 376. (t) Att.-Gen. v. Corporation of Dublin, 1 Bligh. N. S. 312, 347, 348. See also Corporation of Ludlow v. Greenhouse, 1 Bligh N. S. 61, 62, 68. § 1154b— 1156.] CHARITIES. 485 § 1154b. On a still more recent occasion in Ireland, Lord Chancellor Sugden examined the whole subject with great diligence and learning, and reviewed historically the leading authorities. The con- clusion at which he arrived was, that there is an inherent jurisdiction in equity in cases of charity, and that charity is one of those objects for which a court of equity has at all times interfered to make good that which at law was an illegal or informal gift; and that cases of charity in courts of equity in England were valid independently of and previous to the statute of Elizabeth (s). But the most authentic and at the same time the most satisfactory information upon the whole subject is to be found in the report of the Commissioners upon the Public Records published by Parliament in 1827. From this most important document it appears, by a great number of cases previous to the statute, that cases of charities where there were trustees appointed for general and indefinite charities, as well as for specific charities, were familiarly known to, and acted upon and enforced in, the Court of Chancery. In some of these cases the charities were not only of aji uncertain and indefinite nature, but, as far as can be gathered from the records, they were also cases where there were either no trustees appointed, or the trustees were not competent to take (t). § 1155. But however extensive the jurisdiction may originally have been over the subject of charities, and however large its application, it is very certain that, since the statute of Elizabeth, no bequests were deemed within the authority of chancery, and capable of being estab- lished and regulated thereby, except bequests for those purposes which that statute enumerates as charitable or which, by analogy, were deemed within its spirit and intendment (m), and this, as already noted, has been confirmed by the Mortmain and Charitable Uses Act, 1888, s. 13, sub-s. 2. A bequest may, in an enlarged sense, be charitable, and yet not within the purview of the statute. Charity, as Sir William Grant (the Master of the Rolls) has justly observed, in its widest sense, denotes all the good affections men ought to bear towards each other; in its more restricted and common sense, relief to the poor. In neither of these senses is it employed in the Court of Chancery (x). In that court it means such charitable bequests only as are within the letter and the spirit of the statute of Elizabeth. § 1156. Therefore, where a testatrix bequeathed the residue of her personal estate to the Bishop of D., to dispose of the same " to such objects of benevolence and liberality as the bishop in his own discretion (s) The Incorporated Society v. Richards, 1 Conn. & Law. 58; «.c. 1 Dm. & Warr. 258. (t) 1 Cooper's Public Eecords, 324, Calendar of Proceedings in Chancery. (a) See 2 Boper on Legacies, by White, ch. 19, § 1, pp. Ill, 112; Nash v. Morley, 5 Beav. 177, 182, 183. (x) Morice v. Bishop of Durham, 9 Ves. 399 ; s.c. 10 Ves. 522 ; Brown v. Yeall, 7 Ves. 50, note (o) ; Moggridge v. Thackwell, 7 Ves. 36; Nightingale v. Goulbum, 5 Hare, 485 ; affirmed 2 Phil. 594. 486 EQUITY JUEISPEUDENCE. [CH. XXXI. shall most approve of," and she appointed the bishop her executor; on a bill brought to establish the will, and declare the residuary bequest void, the bequest was held void, upon the ground, that objects of " benevolence and liberality " were not necessarily charitable within the statute of Elizabeth, and were, therefore, too indefinite to be executed. On that occasion, it was said by the court, that no case had yet been decided, in which the court had executed a charitable purpose, unless the will had contained a description of that which the law acknowledged to be a charitable purpose, or had devoted the property to purposes of charity in general, in the sense in which that word is used in the Court of Chancery. The devise here was of a trust of so indefinite a nature, that it could not be under the control of the court ; so that the administration of it could be reviewed by the court, or so that, if the trustee died, the court itself could execute the trust. It fell, therefore, within the rule of the court, that, where a trust is inefiectually declared, or fails, or becomes incapable of taking effect, the party taking it shall be deemed a trustee, if not for those who were to take by the will, for those who are to take under the disposition of the law. And the residue was accordingly decreed to the next of kin {y). § 1156a. Upon the like ground, a bequest of personalty to trustees to be applied "for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility," has been held void for vagueness and uncertainty, and as not being within the scope of the statute of Elizabeth (z). § 1157. Upon the like principles, a bequest in these words, "In case there is any money remaining, I should wish it to be given in pri- vate charity," has been held inoperative; for the objects are too general and indefinite, not being within the statute of Elizabeth, and not being so ascertained, that the trust could be controlled or executed by a court of equity (a). So, a bequest to trustees, " to such charitable or public purpose or purposes, person or persons, as the trustees should, in their discretion, think fit, ' ' has been held void : for it is in effect a gift in trust, to be absolutely disposed of in any manner that the trustees might think fit, consistent with the laws of the land ; which is too general and un- defined to be executed {b). So, a bequest " for such benevolent, religious, and charitable purposes, as the trustees should, in their dis- cretion, think most beneficial," has been held void, upon the ground of its generality, as it did not limit the gift to cases of charity, but extended it to those of benevolence also (c). So, a bequest to executors, of a fund, " to apply it to and for such charitable and other purposes as they shall think fit, without being accountable to any person for their iy) Monce v. Bishop of Durham, 9 Ves. 399 ; s.c. 10 Ves. 522. (2) Kendall v. Granger, 5 Beav. 300. (0) Ommaney v. Butcher, 1 Turn. & Buss. 260, 270. (b) Vezey v. Januon, 1 Sim. & Stu. 69. (c) Williams v. Kershaw, cited 1 Keen, 232. § 1156a— 1161.] CHARITIES. 487 disposition thereof," has been held void on account of its indefinite- ness (d). § 1158. So, that it appears from these eases, that, since the statute of Elizabeth, the Court of Chancery will not estabUsh any trusts for indefinite purposes of a benevolent nature, not charit^able within the purview of that statute, although there is an existing trustee, in whom it is vested ; but it will declare the trust void, and distribute the pro- perty among the next of kin. And yet, if there were an original juris- diction in chancery over all bequests, charitable in their own nature, and not superstitious, to establish and regulate them independent of the statute, it is not easy to perceive why an original bill might not be sustained in that court to establish such a bequest, especially, where a trustee is interposed to effectuate it; for the statute does not contain any prohibition of such a bequest. § 1159. A discussion of the procedure by commission established by the statute of Elizabeth, which was seldom resorted to, as noticed before, has now become unnecessary by reason of subsequent legislation although the learned author might not have been justified in ignoring it, notwithstanding it was more cumbrous and inefficient even than the chancery procedure of his day. The administration of trusts at the present day is supervised by the Charity Commissioners established by 16 & 17 Vict. c. 137, s. 17 (e). § 1160. The uses enumerated in the preamble of the statute, as charitable, are gifts for the relief of aged, impotent, and poor people ; for maintenance of sick and maimed soldiers and mariners ; for schools of learning, free schools, and scholars in universities; for repairs of bridges, ports, havens, causeways, churches, sea-banks, and highways ; for education and preferment of orphans ; for, or towards the relief, stock, or maintenance for houses of correction; for marriages of poor maids ; for supportation, aid, and help of young tradesmen, handicrafts- men, and persons decayed ; for relief or redemption of prisoners or cap- tives ; and for aid or ease of any poor inhabitants, concerning payments of fifteenths, setting out of soldiers, and other taxes. These are all the classes of uses which the statute in terms reaches. § 1161. From this summary statement of the contents of the statute, it is apparent that the authority conferred on the Court of Chaaicery, in relation to charitable uses, is very extensive; and it is not at all wonderful, considering the religious notions of the times, that the statute should have received the most liberal, not to say, in some instances, the most extravagant, interpretation. It is very easy to per- ceive how it came to pass, that, as power was give!n to the court in the most unlimited terms, to annul, diminish, alter, or enlarge the orders (d) Ellis V. Sielby, 1 Myl. & Cr. 286. (e) See Rendall v. Blair, 45 Ch. D. 139; In re Clergy Orphan Corporation, [1894] 3 Ch. 145 ; In re Gilchrist Charity, [1895] 1 Ch. 367. 488 EQUITY JURISPRUDENCE. [CH. XXXI. and decrees of the commissioners, and to sustain an original bill in favour of any party aggrieved by such order or decree, the court arrived at the conclusion that it might, by original bill, do that in the first instance which it certainly could do circuitously upon the commis- sion (/). And as in some cases, vchere the trust was for a definite object, and the trustee living, the court might, upon its ordinary juris- diction over trusts, compel an execution of it by an original bill, inde- pendently of the statute (g), we are at once let into the origin of the practice of mixing up the jurisdiction by original bill with the juris- diction under the statute, which Lord Hardwicke alluded to in the passage already quoted (h), and which at that time was inveterately established. This mixture of the jurisdiction serves also to illustrate the remark of Lord Nottingham, in the case already cited (i) ; where, upon an original bill, he decreed a devise to charity, void at law, to be good in equity, as aji appointment; although before the statute of Elizabeth no such decree could have been made. § 1162. Upon the whole, it seems now to be the better opinion, that the jurisdiction of the Court of Chancery over charities, where no trust is interposed, or where there is no person, in esse, capable of taking, or where the charity is of an indefinite nature, is to be referred to the general jurisdiction of that court, anterior to the statute of Elizabeth. This opinion is supported by the preponderating weight of the authorities, speaking to the point, and particularly by those of a very recent date, which appear to have been most thoroughly con- sidered. The language, too, of the statute, lends a confirmation to this opinion, and enables us to trace what would otherwise seem a strange anomaly, to a legitimate origin. § 1163. Be this as it may, it is very certain that the Court of Chancery will now relieve by original bill or information upon gifts and bequests, within the statute of Elizabeth; and informations by the attorney-general, to settle, establish, or direct such charitable donations, are common in practice. Indeed, the mode of proceeding by commission under the statute of Elizabeth, has been long abandoned, and the mode of proceeding by information by the attorney-general, is now become absolutely universal, so as to amount to a virtual extinguishment of the former remedy (fe). But, where the gift is not a charity within the statute, no information lies in the name of the attorney-general to enforce it (t). And if an information is brought in (/) See the Poor of St. Dunstan v. Beauchamp, 1 Ch. Gas. 193, 2 Co. Inst. 711; Corporation of Burford v. Lenthull, 2 Atk. 551. (g) Att.-Gen. v. Dixie, 13 Ves. 519; Ex parte Kirkby Ravensworth Hospital, 15 Ves, 305; Green v. Rutherforth, 1 Ves. 462; Att.-Gen. v. Earl of Clarendon, 17 Ves. 491, 499. {h) Corporation of Burford v. Lenthall, 2 Atk. 520; ante, § 1148. (j) Anon., 1 Ch. Cas. 267. (k) Corporation of Ludlow v. Greenhouse, 1 Bligh N. S. 61, 62, 68. (!) Att.-Gen. v. Hewer, 2 Vera. 387. § 1162—1164.] CHARITIES. 489 the name of the attorney-general, and it appears to be such a charity as the court ought to support, although the information is mistaken in the title or in the prayer of relief, yet the bill will not be dismissed ; but the court will support it and establish the charity in such a manner as by law it may (m). However, the jurisdiction of chancery over charities does not exist where there are local visitors appointed : for it then belongs to them and their heirs to visit and control the charity (n). § 1164. As to what charities are within the purview of the statute, it may be proper 'to say a few words in this place in addition to what has been already suggested (o), although it is impracticable to go into a thorough review of the oases (p). It is clear, that no superstitious uses are within the purview of it. When the learned author wrote, the Court of Chancery regarded all gifts in furtherance of the Eoman Catholic faith (g) and the Jewish faith (r) as falling within the purview of the preamble to the statute 1 Ed. VI. c. 14. But the doctrines of Protestant Dissenters do not seem to have fallen under a similar ban (s). It has recently been held in the House of Lords (t), that the statute has been repealed by subsequent legislation, and that a legacy may be given for masses for the dead, which was one of the illustrations given by the author. The topic suggests a contrast, namely, a gift that may be applied in furthering discussions impugning the Christian faith. This is not necessarily obnoxious as tending to promote blasphemy (u). But there are certain uses which, though not within the strict letter, are yet deemed charitable within the equity of the statute. Such is money given to maintain a preaching minister ; to maintain a schoolmaster in a parish ; for the setting-up of a hospital for the relief of poor people ; for the building of a sessions house for a city or county ; for the making of a new, or for the repairing of an old pulpit in a church ; for the buy- ing of a pulpit-cushion or pulpit-cloth; or for the setting of new bells, where there are none, or for mending of them, where they are out of order (x). (m) Att.-Gen. v. Smart, 1 Ves. Sen. 72; Att.-Gen. v. Jeames, 1 Atk. 365; Att.- Gen. V. Breton, 2 Ves. Sen. 425; Att.-Gen. v. Middleton, 2 Ves. Sen. 327; Att.-Gen. V. Parker, 1 Ves. Sen. 43; s.c. 2 Atk. 576; Att.-Gen. v. Whitley, 11 Ves. 241, 247; ante, § 1149. (n) Att.-Gen. v. Price, 3 Atk. 108; Att.-Gen. v. Governors of Harrow School, 2 Ves. Sen. 552. (o) Ante, § § 1155 to 1158. (p) They are enumerated with great particularity in Duke on Charitable Uses, by Bridgman ; in Com. Dig. Charitable Uses; 2 Eoper on Legacies, by White, ch. 19, §§ 1 to 5, pp. 109 to 164. (g) West V. Shuttleworth, 3 Myl. & K. 684. (r) Da Costa v. De Pas, 2 Swanst. 487. («) Att.-Gen. v. Hickman, 1 Eq. Cas. Abr. 193; Att.-Gen. v. Pearson, 3 Mer. 409. See, however, Shore v. Wilson, 9 CI. & P. 355. (t) Bourne v. Keane, [1919] A. C. (u) Bowman v. Secular Society, Lim. [1917] A. C. 406. ix) Duke on Charit. 105, 113; Bridgman on Duke on Charit. 354; Com. Dig. Charitable Uses, N. 1. So a bequest to keep in repair a tombstone or an ornamental window, though in memory of a particular person, is good. Hoare v. Osborne, L. E. 1 Bq. 585. 490 EQUITY JDRISPEUDENCB. [CH. XXXI. § 1165. Charities are also so highly favoured in the law, that they have always received a more liberal construction than the law will allow m gifts to individuals (y). In the first place, the same words in a will, when applied to individuals, may require a very different construction, when they are applied to the case of a charity. If a testator gives his property to such person as he shall hereafter name to be his executor, and afterwards he appoints no executor; or if, having appointed an executor, the latter dies in the lifetime of the testator, and no other person is appointed in his stead; in either of these cases, as these be- quests are to individuals, the testator will be held intestate ; and his next of kin will take the estate. But if a like bequest be given to the executor in favour of a charity, the court will, in both instances, supply the place of an executor, and carry into effect that very bequest, which, in the case of individuals, must have failed altogether (a). § 1166. Again, in the case of an individual, if an estate is devised to such person as the executor shall name, and no executor is appointed ; or, if one being appointed, he dies in the testator's lifetime, and no other is appointed in his place ; or the appointment becomes nugatory ; the bequest becomes a mere nullity. Yet such a bequest, if expressed to be for a charity, would-be good (a). So, if a legacy is given to trustees to distribute in charity, and they all die in the testator's lifetime ; although the legacy becomes thus lapsed at law (and if the trustees had taken to their own use, it would have been gone for ever), yet it will be enforced in equity (b). § 1167. Again ; although in carrying into execution a bequest to an individual, the mode, in which the legacy is to take effect, is deemed to be the substance of the legacy; yet, where the legacy is to a charity, the court will consider charity as the substance ; and in such cases, and in such cases only, if the mode pointed out fail, it will provide another mode, by which the charity may take effect, but by which no other charitable legatees can take (c). A still stronger case is, that, if the testator had expressed (d) an absolute intention to give a legacy to charitable purposes, but he has left uncertain, or to some future act, the mode by which it is to be carried into effect ; there, the court if no mode is pointed out, will of itself supply the defect, and enforce the charity (e). Therefore, it has been held, that, if a man devises a sum of money to charitable uses as he shall direct by a codicil annexed to his will, or by a note in writing, and he afterwards leaves no direction (y) 2 Eoper on Legacies, by White, ch. 19, § 5, pp. 16i to 222. (2) Moggridge v. Thackwell, 7 Ves. 36 ; Mills v. Farmer, 1 Mer. 55. (o) Moggridge v. Thackwell, 7 Ves. 36; In re Hampton, Public Trustee v. Hamp- ton, 88 L/. J. Oh. 103. (b) Moggridge v. Thackwell, 3 Bro. C. C. 517; 1 Ves. Jun. 464; 7 Ves. 36; Mills V. Farmer, 1 Mer. 55. (c) Ironmongers' Co. v. Att.-Gen., 10 CI. & F. 904. (d) Corporation of Gloucester v. Osborn, 1 H. L. C. 272; af&rming 3 Hare, 131. (e) Moggridge v. Thackwell, 7 Ves. 36. § 1165—1170.] CHARITIES. 491 by note or codicil, the court will dispose of it, to such charitable purposes as it thinks fit. So, if a testator bequeaths a sum for such a school as he shall appoint, and he appoints none, the court may apply it for what school it pleases (/). § 1168. The doctrine was pressed yet farther ; and it was established, that, if the bequest indicate a charitable intention, but the object to which it is to be applied is against the. policy of the laV, the court will lay hold of the charitable intention, and execute it for the purpose of some other charity, agreeably to the law, in the room of that contrary to it (g). Thus, before the removal of religious disabilities, a sum of money bequeathed to found a Jews' synagogue has been enforced by the court as a charity, and judicially transferred to the benefit of a found- ling hospital (h). And a bequest for the education of poor children in the Roman Catholic faith, has been decreed in chancery to be disposed of by the king at his pleasure under his sign-manual (i). § 1169. Another principle, equally well established, is, that, if the bequest be for charity, it matters not how uncertain the persons or the objects may be ; or whether the persons, who are to take, are in esse, or not; or whether the legatee be a corporation capable in law of taking or not; or whether the bequest can be carried into exact execu- tion or not; for, in all these and the like cases, the court will sustain the legacy, and give it effect according to its own principles (fe). And where a literal execution becomes inexpedient or impracticable, the court will execute it, as nearly as it can, according to the original purpose, or (as the technical expression is) oy-pres (I). This doctrine seems to have been borrowed from the Roman law ; for by that law, donations for public purposes were sustained and were applied, when illegal, oy-pres, to other purposes, at least one hundred years before Christianity became the religion of the empire (m). § 1170. Thus, a devise of lands to the churchwardens of a parish (who are not a corporation capable of holding lands), for a charitable purpose, although void at law, will be sustained in equity (n). So, if a corporation, for whose use a charity is designed, is not in esse and cannot come into existence but by some future act of the Crown, as, for instance, a gift to found a new college, which requires an act of incorporation, the gift will be held valid, and the court will execute it (o). So, if a devise be to an existing corporation by a misnomer, (/) Att.-Gen. v. Syderfin., 1 Vern. 224; s.c. 2 Freem. 261; Moggridge v. Thack- well, 7 Ves. 36; In re Davis, Harmen v. Hillyer, [1902] 1 Ch. 876. (g) Da Costa v. De Paz, 2 Swanst. 487 n. ; s.c. Cary v. Abbott, 7 Ves. 490. (h) Da Costa v. De Paz, 2 Swanst. 487 n. ; s.c. 1 Vern. 251. (i) Cary v. Abbott, 7 Ves. 490; De Themmines v. De Bonneval, 5 Euss. 292. (k) Post, § 1181. (l) Ironmongers' Co. v. Att.-Gen., 10 01. & F. 908. (m) Per Lord Justice Wilraot, Wilmot's Notes, pp. 53, 54, citing Dig. Lib. 33, tit. 2, §§ 16, 17, De Usu et Usufruct. Legatorum. (n) 1 Burn, Ecc. Law, 226; Duke, 33, 115; Com. Dig. Chancery, 2 N. 2. (o) Att.-Gen. v. Bowyer, 3 Ves. 714. 492 EQUITY JURISPRUDENCE. [CH. XXXI. which might make it void at law, it will be held good in equity (p). So, where a devise was to the poor generally, the court decreed it to be executed in favour of three public charities in London (g). So, a legacy towards establishing a bishop in America, was held good although none was yet appointed (r). So, where a bequest of £1,000 was " to the Jews' Poor, Mile End," and there were two charitable institutions for Jews at Mile End, it not appearing which of the charities was meant, the court held, that the fund ought to be applied, cy-prea, and divided the bequest between the two institutions («). § 1170a. And where a oharity is so given that there can be no objects, the court will order a new scheme to execute it. But in all cases regard must be had to the intention of the founder as originally expressed, and due provisions made for the performance of his wishes (t). And if objects may, though they do not at present, exist, the court will keep the fund for the contemplated scheme (m). And when the specified objects cease to exist, the court wiU remodel the charity (x). Thus, where there was a bequest of the residue of the testator's estate to a company, to apply the interest of a moiety " unto the redemption of British slaves in Turkey or Barbary," one- fourth to charity schools in London and its suburbs, and one- fourth towards necessitated freemen of the company ; there being no British slaves in Turkey or Barbary to redeem, the court directed a master to approve of a new scheme cy-pres ; and in that case, it further approved a scheme under which, after reserving a fund to redeem British slaves in Turkey or Barbary, other charities named by the testator were augmented (y). But on the matter finally coming before the court, the scheme was so far modified that one only of the charities, and that in a modified form, shared in the surplus (z). Where the charitable gift is of a legacy, and there is a residuary gift, upon failure of the charitable object in the lifetime of the testator there is a lapse, and consequently no place for the application of the fund cy-pres (a). (p) Anon., 1 Ch. Cas. 267; Att.-Gen. v. Piatt, Eep. temp. Finch, 221; In re Maquire, L. E. 9 Bq. 632; In re Faraker, Faraker v. Durell, [1912] 2 Ch. 488. (q) Att.-Gen. v. Peacock, Eep. temp. Finch, 245; Owens v. Bean, ibid. 395; Att.-Gen. v. Syderfin, 1 Vern. 224; B.C. 7 Ves. 48 n. ; Clifford v. Francis, 1 Freem, 330. ir) Att.-Gen. v. Bishop of Chester, 1 Bro. C. G. 444. (s) Bennett v. Hayter, 2 Beav. 81. (t) Ironmongers' Co. v. Att.-Gen., 10 CI. & F. 908; In re Lambeth Charities, 22 L. J. Ch. 959; In re Church Estate Charity, Wandsworth, L. E. 6 Ch. 296. (u) Att.-Gen. v. Oglander, 3 Bro. C. C. 166. For a case where the court after a new scheme had been reformed refused to change it for one identical with the original purpose of the charity, see Att.-Gen. v. Stewart, L. E. 14 Eq. 17. (x) Att.-Gen. v. City of London, 3 Bro. C. C. 171 ; s.c. 1 Ves. Jun. 243. (y) Att.-Gen. v. Ironmongers' Co., 2 M. & K. 676. (2) Ironmongers' Co. v. Att.-Gen., 10 CI. & F. 908. (a) In re Rymer, Rymer v. Stanfield, [1895] 1 Ch. 19. § 1170a— 1172.] CHARITIES. 493 § 1171. In further aid of charities, the court will supply all defects of conveyances, where the donor hath a capacity, and a disposable estate, and his mode of donation does not contravene the provisions of any statute (6). The doctrine is laid down with great accuracy by Duke, who says that a disposition of lands, &c., to charitable uses is good, " albeit there be defect in the deed, or in the will, by which they were first created and raised; either in the party trusted with the use, where he is misnamed, or the like; or in the party or parties for whose use, or that are to have the benefit of the use ; or where they are not well named, or the like ; or in the execution of the estate, as where livery of seisin or attornment is wanting, or the like. And, therefore, if a copyholder doth dispose of copyhold land to a charitable use without a surrender; or a tenant in tail convey land to a charitable use without a fine ; or a reversion without attornment or insolvency; and in divers such like cases, &c., this statute shall supply all the defects of assurance ; for these are good appointments within the statute " (o). But a parol devise to charity out of lands being defective as a will, which is a manner of conveyance, which the testator intended to pass it by, can have no effect, as an appointment which he did not intend {d). Yet it has, nevertheless, been held, where a married woman, administratrix of her husband, and entitled to certain personal estates belonging to him (namely, a chose in. action), afterwards intermarried, and then, during coverture, made a will, disposing of that estate, partly to his heirs, and partly to charity, that the bequest, although void at law, was good as an appointment under the statute of Elizabeth, for this reason ; ' ' that the goods in the hands of administrators are all for charitable uses ; and the ofiice of the ordinary, and of the administrator, is, to employ them to pious uses; and the kindred and children have no property nor pre-eminence but under the title of charity " (e). § 1172. With the same view, the Court of Chancery was, in former times, most astute to find out grounds to sustain charitable bequests. Thus, an appointment to charitable uses under a will, that was precedent to the statute of Elizabeth, and so was utterly void, was held to be made good by the statute (/). So, a devise, which was not within the statute, was nevertheless decreed as a (b) Case of Christ's College, 1 W. Bl. 90; Att.-aen. v. Rye, 2 Vem. 453, and Baithby's notes; Mills v. Fanner, 1 Meriv. 55; Att.-Gen. v. Bowyer, 3 "Ves. Jun. 714; Incorporated Society v. Richards, 1 Dru. & War. 268. (c) Duke on Charit. Uses, 84, 85 ; Bridgman on Duke on Charit. Uses, 355 ; Christ's Hospital v Hawes, Bridgman on Duke on Charit. Uses, 371 ; 1 Burn's Eccl. Liaw, 226; Tujfnel v. Page, 2 Atk. 37; Att.-Gen. v. Rye, 2 Vem. 453; and Eaithby's notes; Incorporated Society v. Richards, 1 Dru. & War. 258. (d) Jenner v. Harper, Free. Ch. 389; 1 Burn's Bccl. Law, 226. (e) Damus's Case, Moore, 822. And see Att.-Gen. v. Syderfin, cited and explained 7 Ves., at p. 43 n. (/) Smith v. Stowell, 1 Ch. Gas. 195; ColUson's Case, Hob. 136. 494 EQUITY JDEISPEUDENCE. [CH. XXXI charity, and governed in a manner wholly different from that con- templated by the testator, although there was nothing unlawful in his intent; the Lord Chancellor giving as his reason, Summa est ratio qucB pro religione fwcit. So, where the charity was for a weekly sermon to be preached by a person to be chosen by the greatest part of the best inhabitants of the parish, it was treated as a wild direction ; and a decree was made, that the bequests should be to maintain a catechist in the parish, to be approved by the Bishop {g). § 1173. So, although the statute of wills of Henry VIII. did not allow devises of lands to corporations to be good, yet such devises to corporations for charitable uses were held good, as appointments under the statute of Elizabeth (/i). Lord Chancellor Cowper, in a case where he was called upon to declare a charitable bequest valid, not- withstanding the will was not executed according to the statute of Frauds, and in which these cases were cited, observed : "I shall be very loth to break in upon the statute of frauds and perjuries in this case, as there are no instances where men are so easily imiposed upon, as thet time of their dying, under the pretence of charity." — " It is true, the charity of judges has carried several cases on the statute of Elizabeth to great lengths ; and this occasioned the distinction between operating by will and by appointment, which, surely, the makers of that statute never contemplated " {i). § 1174. It has been already intimated, that the disposition of modern judges has been to curb this excessive latitude of construction, assumed by the Court of Chancery in early times. But, however strange some of the doctrines already stated may seem to us, as they have seemed to Lord Bldon ; yet they cannot now be shaken without doing that (as he has said), in efEect, which no judge will avowedly take upon himself to do, to reverse decisions that have been acted upon for centuries (k). § 1175. A charity must be accepted upon the same terms upon which it is given, or it must be relinquished to the right heir; for it cajinot be altered by any new agreement between the heir of the donor and the donees (J). And where several distinct charities are given to a parish for several purposes, no agreement of the parishioners can alter or divert them to any other uses (t7?). § 1176. The doctrine of cy-pres, as applied to charities, was formerly pushed to a most extravagant length. But this sensible distinction now prevails, that the court will not decree the execution ig) Att.-Gen. v. Com.be, 2 Ch. Cas. 18. (h) Griffith Flood's Case, Hob. 136. (i) Att.-Gen. V. Bains, Free. Ch. 271. And see Addington v. Cann, 3 Atk. 141. (k) Moggridge v. Thackwell, 7 Ves. 36, 87. ,(l) Att.-Gen. v. Piatt, Eep. temp. Finch 221; Att.-Gen. v. Margaret d Regius Professors, Cambridge, 1 Vem. 55. (m) Man v. Ballet, 1 Vern. 43, 1 Eq. Abr. 99, pi. 4; and see Att.-Gen. v. 1 Atk. 356 ; Ambler 373. § 1173—1179.] CHARITIES. 495 of the trust of a charity in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed. In that case another mode will be adopted, consistent with the general intention; so as to execute it, although not in mode, yet in substance. If the mode should become by subsequent circumstances impossible, the general object is not to be defeated, if it can in any other way be attained. "Where there are no objects remaining to take the benefit of a charitable corporation, the court will dispose of its revenues by a new scheme, upon the principle of the original charities, cy-pres (n). A new scheme will not, however, be ordered, if the institution is a permanent one, and the object of the testator was to benefit that institution generally, although the particular trustee named may have died in the lifetime of the testator; but the legacy will be ordered to be paid over to the proper officer of the institution (o). § 1177. The general rule is, that, if lands are given in trust for any charitable uses, which the donor contemplates to last for ever, the heir never oan have the land back again (p). But if it should become impracticable to execute the charity as expressed, another similar charity will be substituted (g). § 1178. When the increased revenues of a charity are not exhausted by the original objects, the general rule as to the applica- tion of such increased revenues is, that they are not a resulting trust for the heirs-at-law ; but they are to be applied to similar charitable purp'oses and to the augmentation of the benefits of the charity (r). But there must be distinguished those cases in which the donor has manifested a desire to benefit a particular individual, but has burdened his gift with charges in favour of a charity; in this case the charity is not entitled to share in the increased revenue (s). § 1179. In former times, the disposition of chancery to assist charities was so strong, that in equity the assets of the testator were held bound to satisfy charitable uses before debts or legacies ; although at law the assets were held bound to satisfy debts before charities. But, even at law, charities were then preferred to other legacies (<). And this, indeed, was in conform.ity to the civil law, by which charitable legacies are preferred to all others. This doctrine, however, is now altered; and charitable legacies, in case of a deficiency of assets, abate in proportion, as well as other pecuniary legacies (u). (n) Ironmonger's Co. v. Att.-Gen., 10 CI. & F. 908. (o) Walsh V. Gladstone, 1 Phill. 290. (p) Att.-Gen. v. Bowyer, 3 Ves. 714. {q) In re Latymer's Charity, L. E. 7 Bq. 353. (r) Att.-Gen. v. Wax Chandlers' Co., L. E. 6 H. L. 1. is) Att.-Gen. v. Dean and Chapter of Windsor, 8 H. L. C. 369. (t) High on Mortm. 67; Swinb. on Wilk, Pt. 1, § 16, p. 72. (m) Fielding v. Bound, 1 Vem. 240, and Eaithby's note (2). 496 EQUITY JUEISPEUDBNCE. [CH. XXXI. § 1180. Courts of equity declined to marshal the testator's assets, in favour of any charitable bequests given out of a mixed fund of real and personal estate, without any distinction whether the real estate were freehold or leasehold estate, or pure personal estate, or mixed personal estate, and whether these bequests have been particular, or residuary, by refusing to direct the debts and other legacies to be paid out of the real estate, and reserving the personal to fulfil the charity, although the charity would be void as to the real estate (x). But this has been overridden by the Mortmain and Charitable Uses Act, 1891 (64 & 56 Vict. c. 73), which empowers charities to take land by devise, or money directed to be laid out in land, subject only to the obligation to convert or retain in money the subject-matter of the gift. § 1181. It has been already stated that charitable bequests are not void on account of any uncertainty as to the persons or as to the objects to which they are to be applied. Almost all the cases on this subject have been collected, compared, and commented on by Lord Eldon, with his usual diligence and ability, in two decisions. The result of these decisions is, that, if the testator has manifested a general intention to give to charity, the failure of the particular mode, by which the charity is to be effected, will not destroy the charity. For. the substantial intention being charity, equity will substitute another mode of devoting the property to charitable pur- poses, although the formal intention, as to the mode, cannot be accomplished (y). The same principle is applied when the persons or objects of the charity are uncertain, or indefinite, if the predominant intention of the testator is still to devote the property to charity (z). Thus where there was a bequest to " The Home for the Homeless," 27, Red Lion Square, London, and no such institution could be found, it was held that the gift was charitable, and did not fail (a). Upon a similar principle depends the disposition of increased revenue of funds devoted to specified objects of charity (b). § 1182. All these doctrines proceed upon the same ground, that is, the duty of the court to effectuate the general intention of the testator. And, accordingly, the application of them ceases whenever such general intention is not to be found. If, therefore, it is clearly seen that the testator had but one particular object in his mind, as, for example, to build a church if another will find the land, or to purchase a presentation to a particular school, and that purpose (x) In re Somers Cocks, Wegg Prosser v. Wegg Prosser, [1895] 2 Ch. 449. (y) Moggridge v. Thackwell, 7 Yes. 36; Mills v. Farmer, 1 Mer. 55, a.c. 19 Ves. 483. iz) In re Pyne, Lilley v. Att.-Gen., [1903] 1 Ch. 83; In re Mann, Hardy v. Att.-Gen., [1903] 1 Ch. 232. (a) In re Davis, Banner v. HUlyer, [1901] 1 Ch. 876. (b) Ante, § § 1167, 1178. § 1180—1184.] CHARITIES. 497 cannot be answered, the next of kin will taJie, there being, in such a case, no general charitable intention (c). Even in the case of gifts or bequests to superstitious uses which (as we have seen) are not held to be void, but the funds are applied in chancery to other lawful objects of charity (d), the professed ground of the doctrine is (though certainly it is a most extraordinary sort of interpretation of intention) that the party has indicated a general purpose to devote the property to charity; and, therefore, although his specified object cannot be accomplished, yet his general intention of charity is supposed to be effectuated by a.pplying the funds to other charitable objects. How courts of equity could arrive at any such conclusion, it is not easy to perceive, unless, indeed, where the nature of the gift necessarily led to tihe conclusion, that the object specified was a favourite, though not an exclusive, object of the donor. To such cases, it has, in modern times, been practically and justly limited. § 1183. Hence it has become a general principle in the law of charities, that, if the charity be of a general, indefinite, and mere private nature, or not within the scope of the statute of Elizabeth, it will be treated as utterly void, and the property will go to the next of kin. For, in such a case, as the trust is not ascertained, it must either go as an absolute gift to the individual selected to distribute it, or that individual must be a trustee for the next of kin (e). If the testator means to create a trust, and the trust is not effectually created, or fails, the next of kin must take. On the other hand, if the party selected to make the distribution is to take it, it must be upon the ground that the testator did not intend to create a trust, but to leave it entirely to the discretion of the party to apply the fund or not. The latter position is repugnant to the very purpose of the bequest; and, therefore, the interpretation is, that it is the case of a frustrated and void trust (/). A charitable bequest to an institution which comes to an end after the death of the testator, but before the legacy is paid, does not lapse {g). § 1184. It has been made a question, whether a court of equity, sitting in one jurisdiction, can execute any charitable bequests for foreign objects in another jurisdiction. The established doctrine seems to be that the English court will protect the property, but will (c) Cherry v. Mott, 1 Myl. & Cr. 123; In re White's Trusts, 33 Ch. D. 449. (d) Ante, § 1168. (e) Morice v. Bishop of Durham, 9 "Vee. 399; 10 Ves. 521 ; Ommanney v. Butcher, 1 Turn. & E. 260; Hunter v. Att.-Qen., [1899] A. C. 809; In re Davidson, Mintz v. Bourne, [1909] 1 Ch. 567. if) Morice v. Bishop of Durham, 9 Ves. 399; 10 Ves. 621; Fowler v. Garlike, 1 Euss. & M. 282; Corp. of Beverley v. Att.-Gen., 6 H. L. C. 810; Att.-Gen. v. Dean and Chapter of Windsor, 8 H. L. C. 369. (3) In re Slevin, Slevin v. Hepburn, [1891] 2 Ch. 236; In re Davis Hannen v. Hillyer, [1901] 1 Ch. 876. E.J. 32 498 EQUITY JURISPRUDENCE. [CH. XXXI. aot interf&re with the administration of the trust (h). Of course, this must be understood as subject to the implied exception, that the objects of the charities are not against the public policy or laws of the State where they are sought to be enforced, or put into execu- tion; for no State is under any obligation: to give effect to any acts of parties which contravene its own policy or laws. Upon this ground, where a bequest was given by the will of a testator in England, in trust for certain nunneries in foreign countries, it was held void, and the Court of Chancery refused to enforce it (z). § 1185. But every bequest, which, if it were to be executed- in England, would be void under its mortmain laws, is not, as a matter of course, held to be void solely on that accoimt when it is to be executed in a foreign coimtry. There must be some other ingredient, making it reprehensible hi point of public policy generally, or bring- ing it within the reach of the Mortmain Acts. Thus, for example, money bequeathed by a will to be laid out in lands abroad (as in Scotland), may be a valid bequest, and executed by an English court of equity, when money to be laid out in lands in England would be held a void bequest, as contrary to the Mortmain Acts of England (k). § 1186. Where money is bequeathed to charitable purposes abroad, which are to be executed by persons within the same territorial jurisdiction where the court of equity sits, the latter will secure the fund, and cause the charity to be administered under its own direction. But, where the charity is to be established abroad, and is to be executed by persons there, the court not having any jurisdiction to administer, it will simply order the money to be paid over to the proper persons in the foreign country, who are selected by the testator as the instruments of his benevolence ; and will leave it to the foreign local tribunals to see to its due administration (I). § 1187. It is clear, upon principle, that the Court of Chancery, merely in virtue of its general jurisdiction over trusts, independently of the special jurisdiction conferred by the statute of 43rd Elizabeth, oh. 4, must, in many cases, have a right to enforce the due per- formance of charitable bequests; for (as has been well observed) the jurisdictiqn of courts of equity, with respect to charitable bequests, is derived from their general authority to carry into execution the trusts of a will or other instrument, according to the intention ex- (h) Att.-Gen. v. Lepine, 2 Swanst. 181; Forbes v. Forbes, 18 Beav. 552; Att.. Gen. V. Sturge, 19 Beav. 597 ; In re Davis' Trust, 61 L. T. 430. (t) De Garcin v. Lawson, 4 Ves. 433, note. See as to the actual decision Bourne v. Keane, [1919] A. C. (fc) OUphant v. Hendrie, 1 Bro. C. C. 571, and Mr. Belt's note; Mackintosh v. Townsend, 16 Ves. 330. (!) Emery v. Hill, 1 Eusa. 112; Collyer v. Burnett, Taml. 79; Mitford v. Rey- nolds, 1 Phil. 185 ; Att.-Gen. v. Sturge, 19 Beav. 597 ; In re Fraser, Yates v. Fraser, 22 Ch. D. 827; In re Davis' Trusts, 61 L. T. 430. § 1185—1189.] CHARITIES. 499 pressed in that will or instrument (m). We shall presently see that this is strictly true in all cases where the charity is definite in its objects, is lawful, and is to be executed and regulated by trustees who are specially appointed for the purpose (n-). But there are many cases (as we shall also see) in which the jurisdiction exercised over charities in England can scarcely be said to belong to the Court of Chancery, as a court of equity ; and where it is to be treated as a personal delegation of authority to the Chancellor, or as an act of the Crown, through the instrumentality of that dignitary (o). § 1188. The jurisdiction exercised by tihe Chancellor, under the statute of 43rd Elizabeth, ch. 4, over charitable uses, was held to be personal in him, and not exercised in virtue of his ordinary or extraordinary jurisdiction in chancery; and in this respect it resembled the jurisdiction exercised by him in cases of idiots and lunatics, which was exercised purely as the personal delegate of the Crown (p). Where a commission was issued under that statute, any person, excepting to the decree of the commissioners, was treated as a plaintiff in an original cause in chancery, and the respondents as defendants ; and in the examination of witnesses in the cause, thus brought by way of appeal before the Chancellor, neither side was bound by what appeared before the commissioners ; but they might set forth new matter, if they thought proper. If it were not considered on such an appeal, as an original cause, the court could know nothing of the merits; for the evidence before a jury, or before the commissioners under the commission, was not taken in writing, but was vivd voce; and therefore it could not be known to the appellate court (g). § 1189. But, as the Court of Chancery might also proceed in many, although not in all, cases of charities by original bill, as well as by commission under the statute of Elizabeth, the jurisdiction became mixed in practice; that is to say, the jurisdiction of bringing informations in the name of the attorney-general was mixed with the jurisdiction given to the Chancellor by the statute (r). So that it was not always easy to ascertain in what cases he acted as a judge administering the common duties of a court of equity, and in ■what cases he acted as a mere delegate of the Crovni, administering its pecuUar duties and prerogatives. And again, there was a distinction between cases of charity, where the Chancellor was to act in the Court of Chancery, and cases where the charity was to be administered by the king, by his sign-manual. But in practice the cases have often been confounded from similar causes (s). (m) Att.-Gen. v. Ironmongers' Co., 2 Myl. & K. 581. (n) Post, § 1191. (o) Post, § § 1188, 1190. (p) 3 Black. Comm. 427, 428 (g) Corporation of Burford v. Lenthall, 2 Atk. 552; 3 Black. Comm. 427. (t) Ibid. (s) Moggridge v. .Thackwell, 7 "Vee. 83 to 86. 500 EQUITy JUEISPEUDENCE. [CH. XXXI. §■ 1190. The general doctrine in England is, that the king, as parens patrise, has a right to guard and enforce all charities of a public nature, by virtue of his general superintending power over the public interests, where no other person is intrusted with that right (t). But there does seem to be some difficulty in accepting the position advanced by the learned author that vsnherever money is given to charity generally, and indefinitely, without any trustees pointed out, who are to administer it, it might be considered as a personal trust, devolved upon the king, as a constitutional trustee, to be ad- ministered by him, for the Crown cannot be a trustee. The delegation to the Lord Chancellor by sign-msjiual may have been in the nature of tne endorsement ' ' let right be done ' ' in other cases, where a petition of right is presented for leave to implead the king in his own court. That the earlier ground stated by the author is the correct one, is supported by the cases which establish that the attorney-general must be made a party to all judicial proceedings for administering a charity whether by information (m) or by summary process (a;). In such a case, it is not, ordinarily, very important whether the Chancellor acts as the special delegate of the Crown, or the king acts under the sign-manual through his Chancellor guiding his discretion. In practice, however, it was found very difficult to distinguish in what cases the one or the other course ought, upon the strict principles of prerogative, to be adopted. For, vsihere money has been given to trustees for charity generally, without any objects selected, the charity has sometimes been administered by the king, under his sign-manual, and sometimes by the Court of Chancery. Lord Eldon, after a full review of all the cases, came to the conclusion (which is now the settled rule) that, where there is a general indefinite purpose of charity, not fixing itself upon any particular object, the disposition and administration of it are in the king by his sign-manual. But where the gift is to trustees, with general objects, or with some particular objects pointed out, there the Court of Chancery would take upon itself the administration of the charity, and execute it under a scheme to be reported by a master (y). § 1191. But where a charity is definite in its objects, and lawful in its creation, and it is to be executed and regulated by trustees, whether they are private individuals or a corporation ; there, the administration properly belongs to such trustees; and the king, as parens patrix, has no general authority to regulate or control the administration of the funds (a). In all such cases, however, if there be any abuse or misuse of the funds by the trustees, the court will (t) 3 Black. Coram. 437; Moggridge v. Thackwell, 7 Ves. 35. (u) Wellbeloved v. Jones, 1 Sim. & St. 40. (x) Att.-Qen. v. Earl of Stamford, 1 Phil. 737. iy) Moggridge v. Thackwell, 7 Vea. 36. (z) Walsh V. Gladstone, 1 Ph. 29; In re Lea, Lea v. Cooke, 84 Oh. D. 528. § 1190— 1192b.] CHARITIES. 601 interpose, at the instance of the attorney-general, or the parties in interest, to correct such abuse or misuse of the funds. But, in such cases, the interposition of the court is properly referable to its general jurisdiction, as a court of equity, to prevent abuse of a trust, and not to any original right to direct the management of a charity, or the conduct of the trustees (a.). Indeed, if the trustees of the charity should grossly abuse their trust, a court of equity may go the length of taking it away from them, and commit the administration of the charity to other hands (b). But this is no more than the court will do, in proper cases, for any gross abuse of other trusts. § 1191a. Some doctrines on the subject of what constitutes such an abuse or misuse of charitable trusts, and especially of trusts of a religious nature, by trustees, are of such deep interest and general application that they seem to require a brief notice in this place. Where property is devoted to religious purposes, it is not competent for the trustees to depart from the actual or presumed intention of the donors that the religious doctrines which they them- selves professed should be taught (c), and where the trust instrument is silent upon the subject, it is provided by section 2 of 7 & 8 Vict. c. 5, that in the case of protestant Dissenters, twenty-five years' continuous usage immediately preceding the suit is tO' be deemed conclusive evidence on the question. It is no cause for the removal of a trustee that he does not profess the religious belief or doctrine taught (d). § 1192. It seems, that, with a view to encourage the discovery of charitable donations, given for indefinite purposes, it is the practice for the Crown to reward the persons who make the communication if they can bring themselves within the scope of the charity, by giving them a part of the fund ; and the like practice, whether well or ill founded, takes place, also, in relation to escheats (e). § 1192a. A contingent gift over from one charity to another is not affected by the rule against perpetuities (/). But a contingent gift over to an individual is so affected (g). The interest of a charity in an original gift of land must arise within the limits of the rule (h). § 1192b. It seems, that the Statute of Limitations, and the bar from lapse of time, will not be allowed to prevail in cases of charitable (a) Att..Gen. v. Heelis, 2 Sim. & St. 67 ; Att.-Gen. v. Mayor of Exeter, 2 Euss. 363; Att.-Gen. v. St. John's Hospital, 2 De G. J. & S. 621. (b) Drummond v. Att.-Gen. (Ireland), 2 H. L. C. 837. (c) Att.-Gen. v. Pearson, 3 Mer. 353; Shore v. Wilson, 9 CI. & P. 353; General Assembly of Free Church of Scotland v. Lord Overtown, [1904] A. C. 515. See In re Perry's Almshouses, [1899] 1 Ch. 21. (d) Att.-Gen. v. Clifton, 32 Beav. 596; Att.-Gen. v. St. John's Hospital, Bath, 32 Beav. 696. (e) Per Tjord BIdon, in Mongridge v. Thackwell, 7 Ves. 36, 71. (/) Christ's Hospital v. Grainger, 1 Mac. & G. 460. ig) In re Bower, Lloyd Phillips v. Davis, [1893] 2 Ch. 491. (h) Worthing Corporation v. Heather, [1906] 2 Ch. 632. 502 EQUITY JURISPRUDENCE. [CH. XXXI. trusts, in the same manner as it would in cases of mere private trusts. Thus, in the case of a charitable trust, where a corporation had pur- chased with notice of the trust, and had held the property under an adverse title for one hundred and fifty years, it was decided that the corporation should reconvey the property upon the original trusts (i). § 1193. These are the principal doctrines and decisions, under the statute of Elizabeth, respecting charitable uses, which it seems most important to bring in review before the learned reader. It may not be useless to add, that the Statute of Mortmain and Charities, of the 9 Geo. 2, c. 36, very materially narrowed the extent and operation of the statute of Elizabeth ; and formed a permanent barrier against what the statute declared to be a "public mischief," which " had of late greatly increased, by many large and improvident alienations or dis- positions, made by languishing and dying persons, or others, to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs.-" This was compassed by a prohibition of all alienations of land except by deed executed by the donor twelve months before his death and enrolled. Many statutes were subsequently passed limiting the operation of the statute in favour of certain objects, but the principal Act was repealed by the Mortmain and Charitable Uses Act, 1887 (51 & 52 Vict. c. 42). The whole question is now regulated by the Act of 1888 and the Mortmain and Charitable Uses Act, 1891 (54 & 55 Vict. c. 73), which applies to the wills of testators dying after the pass- ing of the Act. Stated shortly an alienation of land inter vivos, unless upon a sale, must be by deed executed in the presence of two witnesses twelve months before the death of the assuror, including in those twelve months the days of the making of the assurance and of the death and enrolled in the Central Office of the Supreme Court of Judicature within six months after the execution thereof. If the uses are declared by a separate instrument, the separate instrument must be so enrolled within six months after the making of the assurance of the land. Personal estate being stock in the public funds, if directed to be laid out in the purchase of land for charity, must be transferred in the public books at least six months before the death of the assuror, including in those six months the days of the transfer and of the death. Other personal estate, if directed to be laid out in the purchase of land for charity, must be assured with same formalities as if the subject-matter were land. As regards gifts by will, land may now be assured by will subject to a liability to convert into money within twelve months or such extended time as the Charity Commissioners or the Court may allow, and money directed to be laid out in the purchase of land for charity is discharged from this liability. The Court or the Charity Commissioners may sanc- tion the retention of land " for actual occupation for the purposes of the charity and not as an investment." Gifts to the universities of Oxford, (t) Att.-Gen. v. Christ's Hospital, 3 Myl. & K. 344. § 1193.] CHARITIES. 603 Cambridge, London, Durham, and the Victoria and the colleges thereof, or any of the colleges of Eton, Winchester, Westminster, and Keble College, are exempted entirely from the operation of the Act. Gifts of land for a public park (limited to twenty acres if by will), a school-house for an elementary school, or for a public museum require enrolment in the books of the Charity Commissioners, within six months after the execution of the deed, or within six months aiter the death of the testator in the case of a will. 504 EQUITY JURISPRUDENCE. [CH. XXXII. CHAPTER XXXII. IMPLIED TRUSTS. § 1195. We have now, in pursuance of the plan already laid down, gone over some of the most important branches of Express Trusts (a), and shall next proceed to the consideration of some of the more usual cases of Implied Trusts, including therein cases of constructive and resulting trusts. Implied Trusts may be divided into two general classes : first, those which stand upon the presumed intention of the parties ; secondly, those which are independent of any such intention, and are forced upon the conscience of the party by operation of law ; as, for example, in cases of meditated fraud, imposition, notice of an adverse equity, and other cases of a similar nature. It has been said to be a general rule that the law never implies, and a court of equity never presumes, a trust, except in case of absolute necessity (b). Per- haps this is stating the doctrine a little too strongly. The more correct exposition of the general rule would seem to be, that a trust is never presumed or implied, as intended by the parties, unless, taking all the circumstances together, that is the fair and reasonable interpretation of their acts and transactions (c). § 1196. And, first, let us consider such implied trusts as are founded in the supposed intention of the parties. The most simple form, perhaps, in which such an implied trust can be presented, is that of money, or other property, delivered by one person to another, to be by the latter paid or delivered over to and for the benefit of a third person. In such a case (as we have seen) (d) the party so receiving the money, or other property, holds it upon a trust; a trust necessarily implied from the nature of the transaction, in favour of such beneficiary, although no express agreement has been entered into, to that effect (e). But even here, the trust is not, under all circumstances, absolute ; for if the trust is purely voluntary, and without any consideration, and the beneficiary has not become a party to it, by his express assent after notice of it, it is revocable ; and if revoked, then the original trust is gone, and an implied trust results in favour of the party who originally created it (/). (a) Ante, § § 980 to 982. (b) Lord Nottingham, Cook v. Fountain, 3 Swanst. 591, 592. (c) Fordyce v. Willis, 3 Bro. C. C. 577 ; Cocks v. Smith, 2 L. J. N. S. Ch. 205. (d) Ante, § 1041. (e) Com. Dig. Chancery, 4 W. 5. (/) Priddy v. Rose, 3 Meriv. 102; Page v. Broom, 4 Euas. 6; Wallwyn v. Coutts, § 1195 — 1198.] IMPLIED TRUSTS. 505 § 1196a. Another form in which a resulting trust may appear, is where there are certain trusts created either by will or deed, which fail in whole or in part ; or which are of such an indefinite nature that courts of equity will not carry them into effect; or which are illegal in their nature and character ; or which are fully executed, and yet leave an un- exhausted residuum. In all such cases, there will arise a resulting trust to the party creating the trusts, or to his heirs and legal representatives, as the case may require (g). § 1196b. But it was early held, in a case where the subject is very extensively discussed by eminent judges, Lord Mansfield dissenting from the decision (h), that where the trusts had all failed, by the decease of the cestui que trust, and the grantor was also deceased, without heirs, making a case for an escheat to the Crown, or lord of the manor, if the legal title had remained in the grantor, a court of equity had^no power to compel the trustee to convey the estat-e to the Crown, in order to perfect the right of escheat. This virtually, or rather practically (for the point was expressly left undecided), established the right of the trustee to hold the land. In consequence, probably, of the great weight of Lord Mansfield's authority in the opposite direction, the question was regarded, by the profession in Westminster Hall, for a long time, as hanging in chibio. But subsequent decisions of very eminent judges, finally confirmed the doctrine of the principal case in favour of the claim of the Crown (i). Lord Mansfield's view has since been established by statute by the Intestate Estates Act, 1884 (47 & 48 Vict. c. 71), s. 4 (k). § 1197. Another common transaction, which gives rise to the pre- sumption of an implied resulting use or trust, is, where a conveyance is made of land or other property without any consideration, express or implied, of any distinct use or trust stated. In such a case, the intent is presumed to be, that it shall be held by the grantee for the benefit of the grantor, as a resulting trust (I). But if there be an express declaration, that it is to be in trust, or for the use of another person, nothing will be presumed against such a declaration. And if there be either a good or a valuable consideration, there equity will immediately raise a use or trust correspondent to such consideration (m), in the absence of any controlling consideration or other circumstances. § .1198. This is in strict conformity to the rule of the common law, applied to resulting uses, which indeed were originally nothing but 3 Meriv. 707; s.c. 3 Sim. 14; GarraTd v. Lord Lauderdale, 8 Sim. 1; s.c. 2 Eusb. & Myl. 451 ; Leman v. Whitely, 4 Euse. 427. (g) Stubbs V. Sargon, 2 Keen 255 ; s.c. 3 Myl. & Cr. 507 ; Corporation of Glouces- ter V. Osborn, 1 H. L. C. 272 ; In re Abbott Fund, Smith v. Abbott, [1900] 2 Ch. 326. (h) Burgess v. Wheate, 1 W. Bl. 133; s.c. 1 Eden Ch. 177. (i) Cox'v. Parker, 22 Beav. 168. (fc) See In re Wood, Att.-Gen. v. Anderson, [1896] 2 Ch. 596. (/) Dyer v. Dyer, 2 Cox, 92; Grey v. Grey, 2 Swanst. 694; Christy v. Courtenay, 13 Beav. 96 ; In re Orme, 50 L. T. 51 ; The Venture, [1908] P. 218. (m) See post, § 1199. 506 EQUITY JURISPRUDENCE. [CH. XXXII. resulting trusts. Thus a feoSment, made without consideration, was, at a very early period of the common law, held to be made for the use of the feoffor (n). Lord Bacon, after repudiating a distinction set up in Dyer, 146 fc, assigning the origin of this doctrine to the time of the statute quia emptores, said: " The intendment of an use to the feoffor, where the feoffment was made without consideration, grew long after when uses waxed general ; and for this reason : because, when feoffments were made, it grew doubtful whether the estates were in use or in purchase, because purchases were things notorious, and uses were things secret. The Chancellor thought it more convenient to put the purchaser to prove his consideration, than the feoffor and his heirs to prove the trust; and so made the intendments towards the use, and put the proof upon the purchaser " (o). Be the origin of the doctrine, however, as it may, it is firmly established in equity jurisprudence in matters of trust. And it is not in any manner affected by the provisions of the Statute of Frauds of 29 Car. 2, c. 3; for that statute contains an express exception of trusts ' ' which shall or may arise or result by the implication or con- struction, of law, or be transferred or extinguished by an act or operation of law" (p). § 1199. The same principle applies to cases where a man makes a feoffment, or other conveyance, and parts with or limits a particular estate only, and leaves the residue undisposed of. In such a case the residue will result to the use of the feoffor or grantor, even though the feoffment or conveyance be made for a consideration. For it is the intent which guides the use ; and, here, the party having expressly declared a particular estate of the use, the presumption is, that if he had intended to part with the residue, he would have declared that in- tention also (g). Where a consideration, although purely nominal, is stated in the deed, the cases fall under two categories. If no uses are declared, the grantee will take the whole use ; and there will be no resulting use for the grantor ; because the payment, even of a nominal consideration, shows an intent, that the grantee should have some use ; and no other being specified, he must take the whole use (r). But, where a particular use is declared, there the undisposed of interest in the use results to the grantor; for the presumption, that the grantor meant to part with the whole use, is thereby repelled (s). (n) 2 Black. Comm. 330; Dyer v. Dyer, 2 Cox 92, 93; post, § 1201. (o) Bacon on Uses, 317. (p) Co. Litt. 290 b, Butler's note, § 8; Bac. Abr. Trusts (C) ; Lamplugh v. Lamp- lugh, 1 P. Will. 112, 113. (9) Co. Litt. 23; Shortridge v. Lamplugh,_2 Ld. Eaym. 798; Fybus v. Mitford, 1 Vent. 372; Benbow v. Townsend, 1 Myl. & K. 506. (r) Barker v. Keete, Freeni. K. B. 24, adopting argument in Porter's Case, 1 Co. fo. 24. (s) As the doctrine of resulting uses and trusts is founded upon a mere implica- tion of law, it may be proper here to observe, that parol evidence i« generally admis- sible for the purpose of rebutting such resulting use or trust. Benbow v. Townsend, 1 Myl. & K. S96 ; post, § 1202. § 1199—1202.] IMPLIED TRUSTS. 507 § 1200. The same principle applies to cases where the whole of the interest in land or personalty is conveyed or given by will, but for parti- cular objects and purposes, or on particular trusts. In all such cases, if those objects or purposes or trusts, by accident or otherwise, fail, and do not take effect; or, if they are all accomplished, and do not exhaust the whole property; there, a resulting trust will arise, for the benefit of the grantor or testator or for his heir or next of kin (t). § 1201. Upon similar grounds, where a man buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee in trust for the person who so pays the considera- tion money (w). This, as an established doctrine, is now not open to controversy. But there are exceptions to it, which stand upon peculiar reasons (to be presently noticed), and which are quite consistent with the general doctrine. " The clear result of all the cases, without a single exception, is " (as has been well said by an eminent judge), " that the trust of a legal estate, whether freehold, copyhold, or leasehold ; whether taken in the names of the purchaser and others jointly, or in the name of others, without the purchaser; whether in one name or several; whether jointly or successively (successive), results to the man who advances the purchase-money. This is a general proposition, supported by all the cases, and there is nothing to contradict it. And it goes on a strict analogy to the rule of the common law, that, where a feoffment is made without consideration, the use results to the feoffor" (x). In truth, it has its origin in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the money means the purchase to be for his own benefit, rather than for that of another; and that the conveyance in the name of the latter, is a matter of conveni- ence and arrangement between the parties, for other collateral purposes'. The same doctrine is applied to cases where securities are taken in the name of another person. As if A. takes a bond in the name of B., for a debt due to himself, B. will be a trustee for A. for the money {y). § 1201a.. There is an exception to the doctrine of a resulting trust in favour of a purchaser, who pays the money, and takes the conveyance in the name of a third person, which stands upon a principle of public policy, and that is, that courts of equity will never raise a resulting trust, where it would contravene the provisions of a statute or would agsist the parties in evading the provisions («). § 1202. But there are other exceptions to the doctrine of a resulting or implied trust, even where the principal has paid the purchase-money, (t) Tregonwell v. Sydenham, 3 Dow 194 ; Northen v. Carnegie, i Drew 587 ; Childers v. Ghilders, 1 De G. & J. 482 ; Ramsay v. Shelmerdine, 11 Jur. N. S. 903 ; In re Abbott Fund, Smith v. Abbott, [1900] 2 Ch. 326. (u) Rider v. Kidder, 10 Ves. 360. (x) Lord Chief Baron Byre, in Dyer v. Dyer, 2 Cox 92, 93. (y) Ebrand v. Dancer, 2 Ch. C. 26 ; s.c. 1 Bq. Abr. 382, pi. 11 ; 2 Mad. Pr. Ch. 101 ; Lloyd v. Read, 1 P. Will. 607 ; Rider v. Kidder, 10 Ves. 366. \z) Curtis V. Perry, 6 Ves. 739. See The Venture, [1908j P. 218. 508 EQUITY JURISPRUDENCE. [CH. XXXII. as has been already intimated, or, perhaps, more properly speaking, as the resulting or implied trust is, in such cases, a mere matter of pre- sumption, it may be rebutted by the other circumstances established in evidence, and even by parol proofs, which satisfactorily contradict it (a). And resulting or implied trusts in such cases may, in like manner, be rebutted, as well to part of the land, as to part of the interest in the land purchased in the name of another (6). Thus, where A. took a mort- gage in the name of B., declaring that he intended the mortgage to be for B.'s benefit, and that the principal, after his own death, should be B.'s; and A. received the interest therefor during his lifetime; it was held that the mortgage belonged to B. after the death of A. (c). But a more common case of rebutting the presumption of a trust is, where the purchase may be fairly deemed to be made for another from motives of natural love and affection. Thus, for example, if a parent should pur- chase in the name of a son, the purchase would be deemed, prima facie, as intended as an advancement; so as to rebut the presumption of a resulting trust for the parent (d). But this presumption, that it is an advancement, may be rebutted by evidence manifesting a clear inten- tion, that the son shall take as a trustee (e). § 1203. The moral obligation of a parent to provide for his children is the foundation of this exception, or rather of this rebutter of a pre- sumption ; since it is not only natural, but reasonable in the highest degree, to presume, that a parent, by purchasing in the name of a child, means a benefit for the latter, in discharge of this moral obligation, and also as a token of parental affection. This presumption in favour of the child, being thus founded in natural affection, and moral obligation, ought not to be frittered away by nice refinements. It is, perhaps, rather to be lamented, that it has been suffered to be broken in upon by any sort of evidence of a merely circumstantial nature. § 1204. The same doctrine applies to the case of securities taken in the name of a child. The presumption is, that it is intended as an advancement, unless the contrary is established in evidence (/). And the like presumption exists in the case of a purchase by a husband in the name of his wife, and of securities taken in her name (g). Indeed, the presumption was stronger in the case of a wife than of a child ; for she could not formerly be the trustee for her husband. 1205. Hence, also, it is, that where a purchase is made by a father in the joint names of himself and of a child, if the father dies, the child (o) Dyer v. Dyer, 2 Cox 92 ; Deacon v. Colquhoun, 2 Drew. 21. (6) Benbow v. Townsend, 1 Myl. & K. 506. (c) Ibid. (d) Dyer v. Dyer, 2 Cox 92; Comminsioner of Stamp Duties v. Byrnes, [1911] A. C. 386. (el Childers v. Ghilders, 1 De G. & J. 482; Curtis v. Worthington, 1 Ch. D. 419. (/) Scaioin v. Scawin, 1 Y. & C. Ch. 65 ; Christy v. Courtenay, 13 Beav. 92 ; Stock V. McAvoy, L. B. 15 Bq. 56. ig) Dunbar v. Dunbar, [1909] 2 Ch. 369. § 1203—1206.] IMPLIED TRUSTS. 609 will hold the estate, and have the benefit thereof by survivorship against the heir-at-law of the father, and against all volunteers, claiming under the father, and also against purchasers from him with notice (h). So, where a father transferred stock from his own name into the joint names of his son, and of a person whom the father and son employed as their banker to receive dividends, and the father told the banker to carry the dividends, as they were received, to the son's account, and they were accordingly received and enjoyed by the son during his father's lifetime ; it was held, that the transfer created an executive trust for the son, and that he was absolutely entitled to the stock (i). § 1206. In the case of joint purchases made by two persons, who advance and pay the purchase-money in equal proportions and take a conveyance to them and their heirs, it constitutes a joint tenancy, that is, a purchase by them jointly of the chance of survivorship ; and of course the survivor will take the whole estate. This is the rule at law ; and it prevails also in equity under the same circumstances ; for unless there are controlling t3ircumstances, equity follows the law (k). But, wherever such circumstances occur, courts of equity will lay hold of them to prevent a survivorship and create a trust; for joint tenancy is not favoured in equity (I). Thus if a joint purchase is made in the name of one of the purchasers, and the other pays or secures his share of the purchase-money, he will be entitled to his share as a resulting trust (m). So, if two persons advance a sum of money by way of mort- gage, and take a mortgage to them jointly, and one of them dies, the survivor shall not have the whole money due on the mortgage, but the representative of the deceased party shall have his proportion as a trust; for the nature of the transaction, as a loan of money, repels the pre- sumption of an intention to hold the mortgage as a joint tenancy (n). So, if two persons jointly purchase an estate, and pay unequal propor- tions of the purchase-money, and take the conveyance in their joint names, in case of the death of either of them there will be no survivor- ship ; for the very circumstance that they have paid the money in un- equal proportions excludes any presumption that they intended to bar- gain for the chance of survivorship. They are, therefore, deemed to purchase, as in the nature of partners, and to intend to hold the estate in proportion to the sums which each has advanced (o). (h) Dyer w. Dyer, 2 Cox, 92; Hepworth v. Hepworth, L. E. 11 Eq. 10. Mr. Atherley, in his Treatise on Marriage Settlements, ch. 33, pp. 473 to 484, and Mr. Sugden, in his Treatise on Vendors and Purchasers, ch. 15, § 1, 2, pp. 607 to 628 (7th edit.), have examined this whole subject with great care and ability; and the learned reader is referred to these works for a full statement of the doctrines and the cases. (i) Crabb v. Grabb, 1 Myl. & K. 511. (k) Lake v. Gibson, 1 Eq. Cas. Ab. 890, pi. 3, s.c. nam. Lake v. Craddock, S P. Wms. 158 ; Robinson v. Preston, 4 Kay, & J. 505. (/) Harrison v. Barton, IJ. & H. 287; Mercier v. Mercier, [1903] 2 Ch. 98. (m) Wray v. Steele, 2 Ves. & B. 388. (n) Rigden v. Vallier, 2 Ves. Sen. 258; s.c. 3 Atk. 731. (o) Lake v. Gibson, 1 Eq. Cas. Ab. 390, pi. 3; Lake v. Craddock, 3 P. Wms. 158. 510 EQUITY JURISPRUDENCE. [CH. XXXII. § 1207. The same rule is uniformly applied to joint purchasers in the way of trade, and for the purposes of partnership, and for other commercial transactions, by analogy to, and in expansion and further- ance of, the great maxim of the common law : ' ' Jus accrescendi inter mercatores pro beneficio commercii locum non habet" (p). In cases, therefore, where real estate is purchased for partnership purposes, and on partnership account, it is wholly immaterial in the view of a court of equity, in whose name or names the purchase is made, and the con- veyance is taken; whether in the name of one partner, or of all the partners, whether in the name of a stranger alone, or of a stranger jointly with one, partner. In all these cases, let the legal title be vested in whom it may (g), it is in equity deemed partnership property, not subject to survivorship; and the partners are deemed the cestuis que trust thereof (r). A court of law may, nay must, in general, view it only according to the state of the legal title. And if the legal title is vested in one partner, or in a stranger, a bond fide purchaser of real estate from him, having no notice, either express or constructive, of its being part- nership property, will be entitled to hold it free from any claim of the partnership. But if he has such notice, then in equity he is clearly bound by the trust; and he takes it cum onere, exactly like every other purchaser of a trust estate (s). § 12r07a. But although, generally speaking, whatever is purchased with partnership property, to be used for partnership purposes, is thus .treated as a trust for the partnership, in whosesoever name the purchase may be made ; yet there may be cases in which, from the nature of the thing purchased, the partner in whose name it is purchased may, upon a dissolution of the partnership, be entitled to hold it as his own, so that it wiU be trust property sub modo only. Thus, for example, an office may be purchased, or a licence be obtained in the name of a partner out of the partnership funds (as, for example, a stockbroker's licence, or the office of a clerk in court), to be used during the continuance of the partnership for partnership purposes, by the person obtaining the same. But it will not follow, that, upon the dissolution of the partner- ,ship, such partner is tohold the same, and act as a stockbroker, or clerk in court, performing all the duties alone for the benefit of the other partners (t). § 1208. Another illustration of the doctrine of implied and resulting trusts arises from the appointment of an executor of a last will and testa- ment. In cases of such an appointment the executor was entitled, both at law and in equity (for in this respect equity followed the law), to the whole surplus of the personal estate, after payment of all debts and (p) Co. Litt. 182a. (g) See Maugham v. Sharpe, 17 C. B. N. S. 443. (r) Wray v. Wray, [1905] 2 Ch. 359. (s) Ante, § 675; post, § § 1243, 1253. (t) Clarke v. Richards, 1 Y. & C. Ex. 351, 384, 385. § 1207—1211.] IMPLIED TRUSTS. 511 charges, for his own benefit, unless it was otherwise disposed of by the testator (u). Courts of equity did indeed lay hold of any circumstances which might rebut the presumption of such a gift to the executor; and some very nice and curious distinctions were taken, in order to escape from the operation of the general rule. In general, it may be stated, that, at law, the appointment of an executor vested in him all the per- sonal estate of the testator; and the surplus, after the payment of all debts and legacies, and residue so far as disposed of, belonged to him. But, in equity, if it could be collected from any circumstance or expres- sion in the will, that the testator intended his executor to have only the office and not the beneficial interest, such intention received effect, and the executor was deemed a trustee for those on whom the law would have east the surplus, in cases of a complete intestacy. But by the 11 Geo. IV. & 1 Will. IV., c. 40, it is provided that when any person shall die, having by will or codicil appointed any executor, such executor shall be deemed by courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Dis- tributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto, that such executor was intended to take such residue beneficially. § 1209. In like manner, at law, a testator, by the appointment of his debtor to be his executor, extinguishes his debt, and it cannot be revived ; although a debt due by an administrator would only be sus- pended. The reason of the difference is, that the one is the act of the law, and the other is the act of the party (x). But in equity a debt due by an executor is not extinguished so far as creditors are concerned; but as between beneficiajies and the executor debtor, a different con- sideration applies, for beneficiaries are volunteers, and accordingly slight circumstances are seized hold of to infer that the testator intended to release the executor from liability to account for the debt (y). Since the Judicature Act, 1873, the rule of equity will prevail. § 1211. Upon grounds of an analogous nature, the general doctrine proceeds, that, whatever acts are done by trustees in regard to the trust property, shall be deemed to be done for the benefit of the cestui que trust, and not for the benefit of the trustee. If, therefore, the trustee makes any contract, or does any act in regard to the trust estate for his own benefit, he will, nevertheless, be held responsible therefor to the cestui que trust, as upon an implied trust. Thus, for example, if a trustee should purchase a lien or mortgage on the trust estate at a discount, he would not be allowed to avail himself of the difference ; but the purchase would be held a trust for the benefit of the cestui que («) 2 Mad. Pr. Ch. 83 to 85. (x) Hudson V. Hudson, 1 Atk. 461. (]/) Brown v. Selwin, Caa. t. Talb. 240; Bym v. Godfrey, 4 Ves. 6; In re Pink, Pink v. Pink, [1912] 2 Ch. 528. 512 EQDITY JURISPRUDENCE. [CH. XXXII. trust (z). So, if a trustee should renew a lease of the trust estate, he would be held bound to account to the cestui que trust for all advantages made thereby (a). And, if a trustee should misapply the funds oi the cestui que trust, the latter if adult would have an election either to take the security, or other property in which the funds were wrongfully invested, or to demand repayment from the trustee of the original funds ; but if one of the beneficiaries is under disability the trustee is only accountable for the money (b). § 1211a. The same principle will apply to persons standing in other fiduciary relations to each other. Thus, for example, if an agent who is employed to purchase for another, purchases in his own name, or for his own account, he will be held to be a trustee of the principal at the option of another (c). And as a fiduciary relationship is established by a contract for the sale and purchase of real estate, a purchaser cannot acquire an alternative title to the property so as to defeat the rights of the vendor under the contract, while it subsists (d). Sureties who pur- chase up the securities of the principal in respect of debts for which they are sureties can only charge the principal with the price given for them (e). § 1212. In this and following sections the author glanced cursorily at the topics of conversion, and of reconversion. It is difficult to see how by the widest stretch of imagination these could be regarded as matters of implied trust, depending as they do on the character of land or money being ' ' imperatively and definitively ' ' affixed to the property irrespec- tive of its actual condition (/). The main question has already been discussed in its proper place {g). § 1215. In the next place, we may enter upon the consideration of that class of implied trusts arising from what are properly called equit- able liens ; by which we are to understand such liens as exist in equity, and of which courts of equity alone take cognizance. A lien (as has been already said) (h) is not, strictly speaking, either a jus in re or a jus ad rem ; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing. (z) Ex parte Lacey, 6 Ves. 626 ; Ex parte James, 8 Ves. 337 ; Lawless v. Mans- field, 1 Dru. & War. 557. (o) Keech v. Sandford, Sel. Gas. Ch. 61 ; James v. Dean, H Ves. 392 ; Giddings v. Giddings, 3 Euss. 241. (b) In re Salmon, Priest v. Uppleby, 42 Ch. D. 351; Power v. Banks, [1901] 2 Ch. 487 ; In re Jenkins and H. E. Randall's Contract, [1908] 2 Ch. 862. (c) Rochefoucauld v. Boustead, [1897] 1 Ch. 196. Id) Murrell v. Ooodyer, 1 De G. P. & J. 432. (e) Reed v. Norris, 2 Myl. & Cr. 361. (/) Wheldale v. Partridge, 5 Ves. 388, 8 Ves. 227. (g) Ante, § § 789 to 793. (h) Ante, § 506; Brace v. Ducliess of Marlborough, 2 P. Will. 491; Ex parte Knott, 11 Ves. 617. § 1211a — 1216a.] implied trusts. 613 § 1216. At law, a lien is usually deemed to be a right to possess and retain a thing, until some charge upon it is paid or removed (i). There are few liens which at law exist in relation to real estate. The most striking of this sort undoubtedly was, the lien of a judgment creditor upon the lands of his debtor, given by the statute of West- minster II. But this was not a specific lien on any particular land, but it was a general lien over all the real estate of the debtor, to be en- forced by an elegit or other legal process upon such part of the real estate of the debtor as the creditor might elect (k). The lien itself was treated as a consequence of the right to take out an elegit ; and it was applied not only to present real estate in possession, but also to reversionary interests in real estate (Z). This lien or charge upon the debtor's lands has since been abolished. In respect to personal property, a general lien is in all cases (with the exception only of certain maritime liens, such as seamen's wages, and bottomry bonds) recognized at law to exist only when it is connected with the possession of the thing itself {m). Where the possession is once voluntarily parted with, or is to be temporary, the lien is, at law, gone (n.). Thus, for example, the lien on goods for freight, the lien for the repairs of domestic ships, and the lien, on goods for a balance of accounts, are all extinguished by a voluntary surrender of the thing to which they are attached (o). Liens at law generally arise, either by the express agreement of the parties, or by the usage of trade, which amounts to an implied agreement, or by mere operation at law (p). • § 1216a. In enforcing liens at law, courts of equity are, in general, governed by the same rules of decision as courts of law, with reference to the nature, operation, and extent of such liens (g). But in some special cases, courts of equity will give aid to the enforcement and satis- faction of liens in a manner utterly unknown at law. Thus, where there is a specialty debt, binding the heirs, and the debtor dies, whereby a lien attaches upon all the lands descended in the hands of his heir, courts of equity will interfere in aid of the creditor, and, in proper cases, accelerate the payment of the debt by decreeing a sale and applying the proceeds in paying creditors the amount of their demand (r). At law the creditor could only take out execution against the whole lands, and hold them, as he would under an elegit, until the debt was fully paid (s). (t) Ante, § 506; Ex parte Heywood, 2 Eose, Cas. 355, 357. \k) Averall v. Wade, LI. & G., t. Sugd. 252. [1) Gilbert on Executions, 38, 39; 2 Tidd on Practice (9th edit.), 1034. (m) Jackson v. Cummins, 5 M. & W. 737; Dodsley v. Varley, 12 Ad. & BU. 632; Shaw V. Neale, 6 H. L. C. 581. (m) Hartley v. Hitchcock, 1 Stark. 408; Hatton v. Car Maintenance Co., Ltd., [1915] 1 Ch. 621. (o) Ex parte Bland, 2 Eose, 91. (p) Post, § 1240. (g) Gladstone v. Birley, 2 Meriv. 403; Oxenham v. Esdaile, 2 Y. & Jerv. 493. (r) Ante, § 628. (s) Bac. Abr. Heir and Ancestor, H. 1, 2 Tidd's Prac. (9th edit.), pp. 936 to 938. E.J. 33 514 EQUITY JURISPRUDENCE. [CH. XXXII. But courts of equity will go farther, and decree a sale of the inheritance in order to accelerate the payment of the debt, if it cannot otherwise be satisfied within a reasonable period. The same doctrine is applied to reversions after an estate for life, and even after an estate tail; fdr they will be decreed to be sold to satisfy a bond debt of the ancestor, which binds the heir, in order to accelerate the payment of the debt (<). And, indeed, courts of equity have, in the case of advowsons, gone farther; and have decreed an advowson in gross to be sold to satisfy a bond creditor; holding such an advowson to be assets at law, even if not extendible on an elegit (u). § 1217. But there are liens recognized in equity, whose existence is not known or obligation enforced at law, and in respect to which courts of equity exercise a very large and salutary jurisdiction (a;). In regard to these liens, it may be generally stated, that they arise from construc- tive trusts. They, are, therefore, wholly independent of the possession of the thing to which they are attached, as a charge or incumbrance ; and they can be enforced only in courts of equity {y). The usual course of enforcing a lien in equity, if not discharged, is by a sale of the pro- perty to which it is attached («). Of this we have a strong illustration in the well-known doctrine of courts of equity, that the vendor of land has a lien on the land for the amount of the purchase-money, not only against the vendee himself, and his heirs, and other privies in estate, but also against all subsequent purchasers having notice that the pur- chase-money remains unpaid (a.). Conversely, the purchaser acquires a lien upon the land in respect of all payments made by him under the contract, and this lien is available against all persons claiming under the vendor otherwise than as purchaser for value without notice of the lien (b). And this is rested upon a fiduciary relationship established by the contract for sale of which many examples can be given (c). § 1218. This lien of the vendor of real estate for the purchase-money is wholly independent of any possession on his part; and it attaches to the estate, as a trust, equally, whether it be actually conveyed, or only be contracted to be conveyed. It has often been objected, that the creation of such a trust by courts of equity is in contravention of the policy of the Statute of Frauds. But, whatever may be the original force of such an objection, the doctrine is now too firmly established to (t) Tyndale v. Wane, Jao. 212. («) Robinson v. Tonge, 3 P. Will. 308; 1 Bro. P. C. 114. See Tyndale v. Warre, Jac. 212, where Sir Thomas Plumer held, that an advowson in gross was not assets at law, but still, if not, it was assets in equity. (a;) Gladstone v. Birley, 2 Meriv. 403. (y) See ante, § 1047. (z) Neate v. Duke of Marlborough, 3 Myl. & Or. 407, 415. (a) Machreth v. Symmons, 16 Ves. 329. (b) Rose v. Watson, 10 H. L. C. 672; Whitehead & Co., Ltd v Watt, [1902] 1 Ch. 835. (c) Eq. Murrell v. Goodyer, 1 De G. F. & J. 432; Phillips v. Silvester, L. E. 8 Ch. 173; Clarke v. Ramuz, [1891] 2 Q. B. 456. § 1217—1220.] IMPLIED TRUSTS. 515 be shaken by any mere theoretical doubts (d). Courts of equity have proceeded upon the ground, that the trust, being raised by implication, is not within the purview of that statute; but is excepted from it. It is not, perhaps, so strong a case as that of a mortgage implied by a deposit of the title-deeds of real estate, which seems directly against the policy of the statute, but which, nevertheless, has been unhesitat- ingly sustained (e). § 1219. The principle upon which courts of equity have proceeded in establishing this lien, in the nature of a trust, is, that a person who has gotten the estate of another, ought not, in conscience, as between them, to be allowed to keep it, and not to pay the full consideration money. A third person, having full knowledge that the estate had been so obtained, ought not to be permitted to keep it without making such payment; for it attaches to him, also, as a matter of conscience and duty. It would otherwise happen that the vendee might put another person into a position better than his own, with full notice of all the facts (/). § 1220. It has been sometimes suggested, that the origin of this lien of the vendor might be attributed to the tacit consent or implied agreement of the parties. But, although in some cases it may be per- fectly reasonable to presume such a consent or agreement, the lien is not, strictly speaking, attributable to it, but stands independently of any such supposed agreement (g). On other occasions the lien has been treated as a natural equity, having its foundation in the earliest prin- ciples of courts of equity (h). Thus, it has been broadly contended, that, according to the law of all nations, the absolute dominion over property sold is not acquired by the purchaser until he has paid the price, or has otherwise satisfied it, unless the vendor has agreed to trust to the personal credit of the buyer (i). For a thing may well be deemed to be unconscientiously obtained, when the consideration is not paid (fc). Upon this ground the Roman law declared the lien to be founded in natural justice. " Tamen rectfe dieitur, et jure gentium, id est, jure naturali, id effici " (l). And, therefore, when courts of equity estab- (d) Mackfisth v. Symmons, 15 Ves. 339. (e) Ante, § 1020. (/) See Mackreth v. Symmons, 15 Ves. 340, 347, 349. (g) Nairn v. Prowse, 6 Ves. 752. (h) Chapman v. Tanner, 1 Vern. 267, 268; Blackbume v. Gregson, 1 Bro. C. C. 424. (i) By Mr. Scott and Mr. Mitford, in argument, in Blackbume v. Gregson, 1 Cox 94. (fc) Hughes v. Kearney, X Sch. & Lefr. 135. It was formerly doubted, in conse- quence of an expression which tell from Lord Hardwicke, in Pollexfen v. Moore, 3 Atk. 278, whether this lien of the vendor could exist in favour of a third person; as, for example, if the vendor, having such a lien, should exhaust the personal estate of the deceased purchaser, whether legatees should have a right to stand in his place against the real estate in the hands of the heir, as upon the marshalling of the assets. That doubt is now removed, and the affirmative established in Selby v. Selby, 4 Russ. 336. See Locke King's Act, 1877 (40 & 41 Vict. c. 84). (I) Inst. Lib. 2, tit. 1, § 41. 516 EQUITY JURISPEUDEKCE. [CH. XXXII. lished-the lien as a matter of doctrine, it had the effect of a contract, and the lien was held to prevail, although, perhaps, no actual contract had taken place (m). § 1221. The true origin of the doctrine may, with high probability, be ascribed to the Eoman law, from which it was imported into the equity jurisprudence of England (n). By the Roman law, the vendor of property sold had a privilege, or right of priority of payment, in the nature of a lien on the property, for the price for which it was sold, not only against the vendee and his representatives, but against his creditors, and also against subsequent purchasers from him. For it was a rule of that law, that, although the sale passed the title and dominion in the thing sold ; yet it also implied a condition, that the vendee should not be of the thing so sold, unless he had paid the price, or had otherwise satisfied the vendor in respect thereof, or a personal credit had been given to him without satisfaction. " Quod vendidi " (said the Digest), " non aliter fit acoipientis quam si aut pretium nobis solutum sit aut satis eo nomine factum ; vel etiam fidem habuerimus emptori sine ulla satisfac- tione (o). Ut res emptoris fiat, nihil interest, utrum solutum sit pre- tium, an eo nomine fidejussor datus sit " (p). The doctrine was still more explicitly laid down in the Institutes : ' ' Venditse vero res, et traditsB, non aliter emptori acquiruntiu:, quam si is venditori pretium solvent, vel alio modo ei satisf ecerit ; veluti expromissore aut pignore dato. Sed, si is, qui vendidit, fidem emptoris sequutus fuerit, dicendum est, statim rem emptoris fieri " (q). The rule was equally applied to the sale of movable and of immovable property; and equally applied, whether there had been a delivery of possession to the vendee or not. If there was no such delivery of possession, then the vendor might retain the property as a pledge, until the price was paid. If there was such a delivery of possession, then the vendor might follow the property into the hands of any person, to whom it had been subsequently passed, and reclaim it or the price (r). " Venditor enim, quasi pignus, retinere potest eam rem, quam vendidit " (s). And a part payment of the pric& did not exonerate the property from the privilege or hen for the residue. " Hsereditatis venditse pretium pro parte accepit " (said the Digest, quoting Sesevola), " reliquum emptore non solvente; qusesitum est, an corpora haereditaria pignoris nomine teneantur? Respondi; nihil proponi, cur non teneantur " (f). (m) Mackreth v. Symmons, 15 Ves. 329, 337. (n) Mackreth v. Symmons, 15 Ves. 329, 344. (o) Dig. Lib. 18, tit. 1, f. 19. (p) Ibid. f. 53. (q) Inst. Lib. 2, tit. 1, § 41. (r) Ibid. The same rule exists in the French law in regard to immovables. But in regard to movables, when delivered to the vendee, there is no sequel (as it is phrased in the French law) by way of privilege or lien against the property, except while it remains in the hands of the purchaser. If he has sold it, the right of privilege or lien, for the price is gone. 1 Domat, B. 3, tit. 1, § 5, art. 4, and note. (s) Id. Dig. Lib. 19, tit. 1, f. 13, § 8. (t) Dig. Lib. 18, tit. 4, f. 22 ; Pothier, Pand. Lib. 19, tit. 1, n. 5. § 1221—1223.] IMPLIED TRUSTS. 517 § 1222. This close analogy, if not this absolute identity, of the English doctrine of the lien of the vendor with that of the Eomam law of privilege on the same subject, seems to demonstrate a common origin ; although in England the lien is confined to cases of the sale of immov- ables, and it does not extend to movables, apart from the right to stop while the goods are in transitu, where there has been a transfer of pos- session (m). As regards equitable interests in settled stocks and funds, a vendor's lien may exist (a;). But in this case the matter is of slight importance in practice owing to the determination of rights by priority by notice (y). There are, however, some exceptions from the doctrine in each law, founded upon the same general principle, but admitting of some diversity in respect to its practical application. § 1223. We have seen that the lien by the Eoman law ceased (1) where the price was actually paid ; (2) where anything was taken in Satisfaction of the price, although payment had not been positively made ; (3) where a personal credit was given to the vendee, excluding any notion of a lien ; " Aut pretium nobis solutum sit ' ' (said the Digest) ; aut satis eo nomine factum ; vel etiam fidem habuerimus emptori sine uUa satisfactione " (z). Pothier has deduced the conclusion, that, in the civU law, the question, whether a personal credit was given to the vendee or not, was to be judged of by all the circumstances of the case. Whenever it was doubtful whether such credit was given or not, there it was not to be presumed, unless made certain by the vendee {a). In every other case, either a payment or a satisfaction of the price was necessary to discharge the property. The giving of a pledge or security for the price was deemed equivalent to payment. ' ' Qualibet ratione, si («) Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), sect. 39, sub-s. 1 (a), sect. 43. See McGruther v. Pitcher, [1904] 2 Ch. 306. (a) In re Stueley, SUtcley v. Kekewich, [1906] 1 Ch. 67. iy) Davies v. Thomas, [1900] 2 Ch. 462. (z) Dig. Lib. 18, tit. 1, f. 19; Inst. Lib. 2, tit. 1, § 41. Vinnius distinguishes between "^ payment and a satisfaction. " Satisfaciendi verbum generalius est, quam solvendi. Qui solvit, utique et satisfacit; at non omnis satisfactio solutio est. Satis- facit, et qui non liberatur; veluti, si quis fidejussorem vel pignora det; solutione vero obligatio toilitur." Vinnius also says, that a personal credit, given to the vendor, with- out satisfaction, is a waiver of the lien. For, commenting on the words of the Insti- tute, Sed si is, qui vendidit, fidem emptoris sequutus fuerit, he says : " Id est, fidem emptori de pretio habuerit sine uUa satisfactione." What will amount to such per- sonal credit, he adds, depends on circumstances, but an agreement for postponement of payment to a future day would be such a personal credit and would discharge the lien. " Quod ex circumstantiis aestimandum; veluti, si, dies, solutioni dicta sit." And for this he cites the Code. (Cod. Lib. 4, tit. 54, 1. 3.) He then proceeds : " Aut ei, . 660; Palmer v. Moore, [1900] A. C. 293; Jones v North Vancouver Land and Improvement Co., [1910] A. 0. 317. 556 EQUITY JURISPRUDENCE. [CH. XXXIII. policy, and received the premiums until the assured died; it was held that the compajiy was precluded from insisting on the forfeiture (o). § 1326. Where any penalty or forfeiture is imposed by statute upon the doing or omission of a certain act, there courts of equity will not interfere to mitigate the penalty or forfeiture, if incurred, for it would be in contravention of the direct expression of the legislative- will (pi). The same principle is generally (perhaps not universally) applied to cases of forfeiture founded upon the customs of manors, and the general customs of certain kinds of estates, such as copyholds ; for, in all these cases, the forfeiture is treated as properly founded upon some positive law, or some customary regulations, which had their origin in sound public policy, and ought to be enforced for the general benefit (g). (o) Wing v. Harvey, 5 Be G. M. & G. 265. (p) Curtis V. Perry, 6 Ves. 739; Thompson v. Leake, 1 Mad. 39. (g) Peachy v. Duke of Somerset, 1 Str. 447, 452; s.c. Prec. Ch. 568, 570, 674. But see Nash v. Earl of Derby, 2 Vern. 537, and Mr. Eaithby's note (1); Thomas v. Porter, 1 Ch. C. 95 ; Hill v. Barclay, 18 Ves. 64. § 1326—1329.] INFANTS. 557 CHAPTER XXXIV. INFANTS. § 1327. We shall next proceed to the consideration of another portion of the former exclusive jurisdiction of courts of equity, partly arising from the peculiar relation and personal character of the parties, who are the proper objects of it, ajid partly arising from a mixture of public and private trusts, of a large and interesting nature. The jurisdiction here alluded to, is that which is exercised over the persons and property of infants, idiots, lunatics, and married women. § 1328. And, in the first place, as to the jurisdiction over the persons and property of Infants. The origin of this, jurisdiction in chancery (a) is very obscure, and has been a matter of much judicial discussion (b). The common manner of accounting for it has been thought by a learned writer to be quite unsatisfactory (c). It is that the king is bound by the law of common right to defend his subjects, their goods, chattels, lands, and tenements ; and therefore, in the law, every royal subject is taken into the king's protection. For which reason an idiot or lunatic, who cannot defend or govern himself, or order his lands, tenements, goods, or chattels, the king, of right, as parens patriee, ought to have in his custody, and rule him and them (d). And for the same reason, the king, as parens patrix, ought to have the care of the persons and property of infants, where they have no other guardian of either (e). § 1329. The objection urged against this reasoning is, that it does not sufficiently account for the state of the former jurisdiction; for there was a marked distinction between the jurisdiction in cases of infancy, and that in cases of lunacy and idiocy. The former was exer- cised by the chancellor, in the Court of Chancery, as a part of the general delegation of the authority of the crovm, virtute officii, without any special warrant; whereas the latter was exercised by him by a separate commission under the sign-manual of the king, and not other- wise (/). It is not safe or correct, therefore, to reason from one to the (a) 3 Black. Comm. 427. (6) Wellesley v. Wellesley, 2 Bligh N. S. 136. (c) Hargrave's note (70) to Co. Litt. 89 a, § 16. (d) Ktz. N. B. 232; Eyre v. Countess of Shaftesbury, 2 P. Will. 118; Beverley's Case, 4 Co. 123, 124. (e) Eyre v. Countess of Shaftesbury, 2 P. Will. 118, 119; 3 Black. Comm. 427. (/) Co. Litt. 89 a, Hargrave's note (70), § 15; Sheldon v. Fortescue Aland, 3 P. Will. 104, 107, and Mr. Cox's note (A) ; Sherwood v. Sanderson, 19 Vea. 285. 558 EQUITY JURISPRUDENCE. [CH. XXXIV. other, either as to the nature of the jurisdiction or as to the practice under it (gr). § 1330. An attempt has also been made to assign a different origin to the jurisdiction, and to sustain it, by considering guardianship as in the nature of a trust; and that, therefore, the jurisdiction has a broad and general foundation, since trusts are the peculiar objects of equity jurisdiction (h). But this has been thought to be an overstrained refinement; for, although guardianship may properly be denominated a trust, in the common acceptation of the terra, yet it is not so in the technical sense in which the term is used by lawyers, or in the Court of Chancery. In the latter, trusts are invariably applied to property (and especially to real property) and not to persons (i). It may be added, that guardianship, considered as a trust, would equally be within the jurisdiction of all the courts of equity ; whereas it is limited to the chancellor, sitting in chancery (fc). § 1331. An attempt has also been made to derive the jurisdiction from the writ of Bavishment of Ward, and the writ De Recto de Custodia at the common law, but with as little success. For, indepen- dently of the consideration, that these writs were returnable into a court of common law, it is not easy to see how a jurisdiction, to decide between contending competitors for the right of guardianship, can establish a general authority, in the Court of Chancery, to appoint a guardian in all cases where one happens to be wanting (l). § 1332. It has been further suggested, that the appointment of guardians in cases where the infants had none, belonged to the chan- cellor, in the Court of Chancery, before the erection of the Court of Wards; and that, upon the abolition of that court, it reverted to the king, in his Court of Chancery, as the general protector of all the infants in the kingdom. But this (it has been objected) is rather an assertion, than a proof, of the jurisdiction ; for it is difficult to trace it back to any such ancient period. The earliest instance which has been found, of the actual exercise of the jurisdiction by the chancellor, to appoint a guardian, upon petition without bill, is said to be that of Hampden, in the year 1696. Since that period, indeed, it has been constantly exercised without its once being called in question. Mr. Hargrave has not hesitated to say, that, although the jurisdiction is now unquestionable, yet it seems to have been a usurpation, for which the best excuse was, that the case was not otherwise sufficiently pro- vided for. He has added, that, although the care of infants, as well as of idiots and lunatics, should be admitted to belong to the crown; yet. (g) Ex parte Whitfield, 2 Atk. 315; Ex parte Phillips, 19 Ves. 122. (h) See Duke of Beaufort v. Berty, 1 P. Will. 705 ; post, § 1343 to 1345. (t) Co. Litt. 89 a, Hargrave's note (70), § 17. (k) Ante, § 1328; post, § § 1343, 1351. (!) Co. Litt. 89 a, Hargrave's note (70), § 16. § 1330—1333.] INFANTS. 559 that something further is necessary to prove that the chancellor is the person constitutionally delegated to act for the king (m). § 1383. Notwithstanding the objections thus urged against the legitimacy of the origin of the jurisdiction, it is highly probable that It has a just and rightful foundation in the prerogative of the crovs'n, flovs^- ing from its general power and duty as parens patrise, to protect those who have no other lawful protector (n). It has been well said, that it will scarcely be controverted, that in every civilized state, such a super- intendence and protected power does somewhere exist. If it is not found to exist elsewhere, it seems to' be a just inference from the knoviTi prerogatives of the crown, as parens patrise, in analogous cases, to pre- sume that it vests in the crown (o). It is no slight confirmation of this inference, that it has been constantly referred to such an origin in all the judicial investigations of the matter (p), as well as in the discussions of very learned elementary writers (g). (m) Hargrave's note (70), § 16, Co. Litt. 89 a,. There is very great reason to question this conclusion of the learned author; nor is it very likely that, at so late a period as 1696, a clear usurpation of an authority of this nature should have been either claimed by the chancellor or tolerated by Parliament. In Pitzherbert 's Natura Brevium (p. 27, b), a very ancient work of great authority, it is said, that "the king, by his letters-patent, may make a general guardian for an infant, to answer for him in all actions or suits brought, or to be brought, in all manner of courts." It is added, " And the infant shall have a writ in the chancery to remove his guar- dian, directed unto the justices, and for to receive another, &o. ; and the court, at their discretion, may remove the guardian, and appoint another guardian." (n) The learned reader is referred to the elaborate note of Mr. Hargrave to Co. Litt. 89 a, note (70), § 16, for the objections to the jurisdiction, which are there fully considered; and also to the equally elaborate note of Mr. Fonblanqne (2 Fonbl. Bq. B. 2, Pt. 2, ch. 2, § 1, note a), for the answers to those objections. The view of the matter taken in the text is almost exclusively derived from the note of Mr. Fou- blanque. Lord Eldon, in De Manneville v. De Manneville, 10 Ves. 63, 64, after referring to the notes of Mr. Hargrave and Mr. Ponblanque, stated that "the latter had stated the principle very correctly." (o) See Beverley's Case, i Co. 123, 124; Brae. Lib. 3, cap. 9; Eyre v. Countess of Shaftesbury, 2 P. Will. 118, 123; Stuart v. Marquis of Bute, 9 H. L. C. 440; In re Bourgeoise, 41 Ch. D. 310; also 1 Mad. Pr. Ch. 262, 263. (p) Eyre v. Countess of Shaftesbury, 2 P. Will. 118, 123; Butler v. Freeman, Ambler, 302; Hughes v. Science, 2 Eq. Abr. 766; De Manneville v. De Manneville, 10 Ves. 63, 64. (g) 3 Black. Comm. 427; Pitz. Nat. Brev. 27; 2 Fonbl. Eq. B. 2, Pt. 2, ch. 2, § 1, note (a); 1 Mad. Pr. Ch. 262, 263. In Butler v. Freeman, Ambler, 302, Lord Hardwicke is reported to have said , with reference to this subject : ' ' This court does not act on the footing of guardianship or wardship. The latter is totally taken away by the statute of Charles II. And without claiming the former, and disclaiming the latter, it has a general right delegated by the crown as pater -patrice to interfere in particular cases for the benefit of such who are incapable to protect themselves." in the case of Hughes v. Science, cited in Ambler, 302, Mr. Blunt's note (2), the same learned judge said : " The law of the country has taken great care of infants, both their persons and estates, and particularly to prevent marriages to their disparage- ment. For that purpose it had assigned them guardians ; and if a stranger married without the guardian's consent, it was considered a ravishment of ward, and the party was deemed punishable by fine and imprisonment; and so it was, if the guardian himself married the infant to another to its disparagement. And the court has originally exercised a superintendent jurisdiction over guardians in behalf of infants, to prevent abuses, either in their persons or estates, as well as in behalf of the crown, 560 EQUITY JURISPRUDENCE. [CH. XXXIV. § 1334. Assuming, then, that the general care and superintendence of infants did originally vest in the crown, when they had no other guardian, the question by whom, and in what manner, the prerogative should be exercised, would not seem open to much controversy. Par- taking, as it does, more of the nature of a judicial administration of rights and duties in foro conscientise, than of a strict executive authority, it would naturally follow ea ratione, that it should be exercised in the Court of Chancery, as a branch of the general jurisdiction originally confided to it. Accordingly, the doctrine now commonly maintained is, that the general superintendence and protective jurisdiction of the Court of Chancery over the persons and property of infants is a delega- tion of the rights and duty of the crown ; that it belonged to that court, and was exercised by it from its first establishment; and that this general jurisdiction was not even suspended by the statute of Henry VIII., erecting the Court of Wards and Liveries (r). § 1335. The jurisdiction over idiots and lunatics was distinguishable from that over infants, in several respects. The former was a personal trust in the Lord Chancellor, and especially delegated to him under the sign-manual of the king ; and from his decree no appeal lay, except to the king in council (s). On the other hand, the latter belonged to the Court of Chancery, and it might be exercised as well by the Master of the Eolls as by the Lord Chancellor, and therefore an appeal lay from the decision of the Court of Chancery, in cases of infants, to the House of Lords (t). § 1336. It may be asked, why, if no particular warrant was neces- sary to enable the Court of Chancery to exercise its protective power and care over infants, a separate commission under the sign-manual should be necessary to confer on the chancellor the jurisdiction over and inferior lords, who had formerly a great interest in the wardship of infants. Afterwards, indeed, the Court of Wards being created, took the jurisdiction out of chancery for a tiine. But, as soon as that court came to be dissolved, the jurisdic- tion devolved again upon the court, and infants have ever since been considered as under the immediate care of chancery. Whenever a. suit is commenced here on their behalf, and even without suit, the court every day appoints guardians on petition; and the marriage of an infant to her guardian or any other without the consent of the court, where a suit is depending here in behalf of the infant, has been always treated and punished as a contempt. See Serj. Hill's MSS. vol. 6, p. 8." s.c. cited at large in Macpherson on Infants, Appendix I. See also Lord Bldon'a remarks in De Manne- ville V. De Mannemlle, 10 Ves. 63, 64. (r) 2 Ponbl. Bq. B. 2, Pt. 2, ch. 2, § 1, note (a); Morgan v. Dillon, 9 Mod. 139, 140; De Manneville v. De Manneville, 10 Ves. 52; Wellesley v. Duke of Beaufort, 2 Russ. ; Wellesley v. Wellesley, 2 Bligh N. S. 124. In the case last cited Lord Eedesdale adverted to the custom of London, admitted in the courts of common law to be valid, under which they made orders relative to infants of freemen, and enforced them by committing parties disobeying to Newgate, as a jurisdiction delegated by the crown anterior to the statute of Henry VIII. (s) Sheldon v. Fortescue Aland, 3 P. Will. 104, 107, Mr. Cox's note (A); Boch- fort V. Earl of Ely, 6 Bro. Pari. C. 329; Sherwood v. Sanderson, 19 Ves. 285; Ex parte Phillips, 19 Ves. 122, 123. (t) Oxenden v. Compton, 2 Ves. Jun. 71, 72. § 1334—1337.] INFANTS. 561 idiots and lunatics, since that also has been referred to the protecting prerogative of the crown as parens patriae. The answer which has been given (and perhaps it is a true one) is, that in point of fact, the custody of the persons and property of idiots and lunatics, or at least of those who held lands, was not anciently in the crown, but in the lord of the fee. The statut-e (De Prerogativd Regis) of 17 Edw. 2, c. 9 (or, as Lord Coke and others suppose, some earlier statute) (v), gave to the king the custody of idiots, and also vested in him the profits of the idiot's lands during his life (x). By this means the crown acquired a beneficial interest in the lands ; and as a special warrant from the crown is, in all cases, necessary to any grant of its interest, t*he separate com- mission, which gives the Lord Chancellor jurisdiction over the persons and property of idiots, may be referred to this consideration (y). With respect to lunatics, the statute of 17 Edw. 2, c. 10, enacted, that the king should provide that their lands and tenements should be kept without waste. It conferred merely a power which is not to be con- sidered as included within the general jurisdiction, antecedently conferred on the Court of Chancery ; and therefore, a separate and special com- mission became necessary for the delegation of this new power (z). There is, under the statute, a difference between the case of an idiot, and that of a lunatic, in this respect. In the case of a lunatic, the king is a mere trustee; in the case of an idiot, he has a beneficial interest (a). § 1337. But, whatever may be the true origin of the jurisdiction of the Court of Chancery over the persons and property of infants, it is now conceded, on all sides, to be firmly established, and beyond the reach of controversy. Indeed, it is a settled maxim, that the king is the universal guardian to infants, and ought, in the Court of Chancery, (a) See 2 Co. Inst. 14; 2 Beeve's Hist. ch. 12, pp. 307, 308; 1 Black. Comm. 302, 303; Fitz. N. Brev. 232. (x) Lord Coke, in 2 Inst. 14, speaking of the provision in Magna Cliarta, ch. 4, says : " At the making of this statute the king had not any prerogative in the custody of the lands of idiots during the life of the idiots ; for if he had, this act would have provided against waste, &c., committed by the committeg or assignee of the king, to be done in his possessions, as well as in the possessions of wards. But at this time the guardianship of idiots, &c. , was to the lords and others, according to the course of the common law." In Beverley's Case, 4 Co. Eep. 126, it is expressly declared, that the statute of 17 Edw. 2. c. 9, is but an affirmance or declaration of the common law. So Mr. Justice Blackstone, in his Commentaries, 1 Black. Comm. 303, treats it. Lord Coke thinks that this prerogative was given to the crown by some statute not now extant, in the reign of Edward I., after Bracton wrote his work, and before that of Britton. '2 Inst. 14. See also Lord Northington 's opinion in Ex parte Grim- stone, Ambler, 707. (y) De Manneville v. De Mannemlle, 10 Ves. 63, 64; 1 Black. Comm. 303, 304. (z) Lord Loughborough, in Oxenden v. Lord Compton, 2 Ves. Jun. 71, 72; s.c. 4 Bro. C. C. 23, considered the statute of 17 Edw. 2. c. 10, as merely in affirmance of the antecedent rights of the crown. This view was also entertained by Lord Hardwioke, Corporation of Burford v. Lenthall, 2 Atk. 553; In re Heli, 3 Atk. 635; by Lord Apsley, Ex parte Grimstone, Ambler, 707; and Lord Eldon, De Manneville V. De Manneville, 10 Ves. 63. (a) In re Fitzgerald, 2 Sch. & Lefr. 436, in which case the difference was fully expounded by Lord Eedesdale. E.J. 36 562 EQUITY JURISPRUDENCE. [CH. XXXIV. to take care of their fortunes (b). We shall now proceed to the con- sideration of some of the more important functions, connected with this authority; in the appointment and removal of guardians; in the maintenance of infants ; in the management and disposition of the pro- perty of infants ; and lastly, in the marriage of infants. § 1338. In the first place, in regard to the appointment and removal of guardians. The court (c) will appoint a suitable guardian to an infant, where there is none other, or none other who will, or can act, at least where the infant has property; for if the infant has no property, the court will perhaps not interfere. It is not, however, from any want of jurisdiction {d) that it will not interfere in such a case, but from the want of means to exercise its jurisdiction with effect; because the court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this part of its jurisdiction usefully and practically only where it has the means of doing so ; that is to say, by its having the means of applying property for the use and mainten- ance of the infant (e). Guardians appointed by the court are treated as officers of the court, and are held responsible accordingly to it (/). § 1338a. The question of who are to be appointed guardians, is generally one of discretion, merely; and the court ordinarily refers it to a master, especially if the guardianship be contested between two or more parties, to appoint guardians, leaving the person in whose cus- tody the infant actually is, to retain that custody until the coming in of the master's certificate. And if there are testamentary guardians, the court has no jurisdiction to interfere except in cases of miscon- duct (g). If the testamentary appointment, however, be one that con- templates the residence of the child in the country of its birth, and tho child be removed to a residence in England, it seems that the Court of Chancery in England may appoint guardians; and the testamentary appointment will be looked at only as an expression of the parent's preferences, to which the court will give great influence (h). § 1339. In the next place, as to the removal of guardians. The court will not only remove guardians appointed by its own authority, but it will also remove guardians at the common law, and even testa- mentary or statute guardians, whenever sufficient cause can be shown for such a purpose (i). In all such cases, the guardianship is treated (b) Wellesley v. Duke of Beaufort, 2 Euss. 19. (c) That ig, under the present practice, one of the judges of the Chancery Division of the High Court of Justice. (d) In re Fynn, 2 De G. & Sm. 457 ; Stuart v. Marquis of Bute, 9 H. L. C. 440. See In re Spence, 2 Phil. 247. (e) Lord Bldon, in Wellesley v. Duke of Beaufort, 2 Euss. 1, 21. (/) Wellesley v. Duke of Beaufort, 2 Euss. 1, 20, 21; post, § 1351. (g) In re Neale, 15 Beav. 250; Coham v. Coham, 13 Sim. 639; Miller v. Harris, 14 Sim. 540. (h) Johnstone v. Beattie, 10 CI. & P. 42; In re Bourgeoise, 41 Ch. D. 310. (»') Johnstone v. Beattie, 10 CI. & P. 42 ; Wellesley v. Wellesley, 2 Bligh N. S. 124; Smart v. SmaH, [1892] A. C. 425. § 1338—1341.] INFANTS. 663 as a delegated trust, for the benefit of the infant, and, if it is abused, 'or in danger of abuse, the court will interpose, not only by way of remedial justice, but of preventive justice. Where the conduct of the guardian is less reprehensible, and does not require so strong a measure as a removal, the court will, upon special application, interfere, and regulate, and direct the conduct of the guardian in regard to the custody, and education, and maintenance of the infant (k) ; and, if necessary, it will inhibit him from carrying the infant out of the country, and it will even appoint the school where he shall be educated (I). In like manner, it will, in proper cases, require security to be given by the guardian, if there is any danger of abuse or injury to his person or to his property (m). § 1340. The court will not only interfere to remove guardians for improper conduct, but it will also assist guardians in compelling their wards to go to the schools selected by the guardian, as well as in obtain- ing the custody of the persons of their wards, when they are detained from them. This may not only be done by any judge of the Supreme Court of Judicature by a writ of habeas corpus, but it may also be done on a petition, without any action being brought in the court (n). § 1341. The jurisdiction of the court extends to the care of the person of the infant, so far as necessary for his protection and educa- tion; and to the care of the property of the infant, for its due manage- ment and preservation, and proper application for his maintenance (o). It is upon the former ground, principally, that is to say, for the due protection and education of the infant, that the court interferes with the ordinary rights of parents as guardians by nature, or by nurture, in regard to the custody and. care of their children (p). For, although parents are entrusted with the custody of the persons, and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education in literature, and morals, and religion; and that they will be treated with kindness and affection. But, whenever the pre- sumption is removed ; whenever (for example) it is found, that a father is guilty of gross ill-treatment or cruelty towards his infant children; or that he is in constant habits of drunkenness and blasphemy, or low (k) Roach v. Garvan, 1 Ves. Sen. 160; In re McCulloch, 1 Dm. 276. (I) Campbell v. Mackay, 2 M. & Cr. 31 ; Talhot v. Duke of Shrewshury, 4 M. A Or. 672. (m) Foster v. Denny, 2 Ch. C. 237; Hanbury v. Walker, 3 Ch. C. 58; 1 Mad. Pr. Ch. 263, 264, 268, 269. (n) Eyre v. Countess of Shaftesbury, 2 P. Will. 103 ; Ex parte Hopkins, 3 P. Will. 152, and Mr. Cox's note; Da Costa v. Mellish, West, 300; s.c. 2 Swanst. 533, 537, note. (o) In re Spence, 2 Phil. 247. (p) Mr. Hargrave, in his learned notes, 66, 67, § 123, to Co. Litt. 88 b, has brought together the general principles and doctrine, applicable to guardianship by nature, guardianship by socage, and guardianship by nurture, the first and last of ■which are often confounded, and used in a loose and indeterminate sense. 564 EQUITY JURISPRUDENCE. [CH. XXXIV. and gross debauchery ; or that he professes atheistical or irreligious principles; or that his domestic associations are such as tend to the' corruption and contamination of his children; or that he otherwise acts in a manner injurious to the morals or interests of his children; in eveiy such case, the court will interfere, and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education (g). But it is only in cases of gross misconduct that paternal rights are interfered with. As between husband and wife, the custody of the children generally belongs to the husband, and the latter could not formerly alienate his right to the custody and care of the children (r). § 1341a. This subject was much considered in the case of hi re Agar-Ellis, Agar-Ellis v. Lascclles (s), where it was laid down by the Court of Appeal, that a father has a legal right to control, and direct, the education and bringing up of his children, until they attain the age of twenty-one years, even although they are wards of court, and the court will not interfere with him in the exercise of his paternal authority, except (1) where by his gross moral turpitude, he forfeits his rights; or (2) where he has, by his conduct, abdicated his paternal authority; or (3) where he seeks to remove his children, being wards of court, out of the jurisdiction, without the consent of the court. § 1342. The jurisdiction, thus asserted, to remove infant children from the custody of their parents, aJid to superintend their education and maintenance, is admitted to be of extreme delicacy, and of no inconsiderable embarrassment and responsibility. But it is neverthe- less a jurisdiction which seems indispensable to the sound morals, the good order, and the just protection of a civilized society. In a celebrated case, after it had been acted upon in chancery for one hundred and fifty years, it was attempted to be brought into question ; and . was resisted, as unfounded in the true principles of English jurisprudence. It was, however, confirmed by the House of Lords, with entire unanimity ; and on that occasion was sustained by a weight of authority and reasoning rarely equalled (i). § 1342a. In the foregoing paragraphs the author had discussed the leading principles guiding the Court of Chancery in the exercise of its inherent jurisdiction respecting the guardianship and custody of infants, subjects often confused, but quite distinct. This jurisdiction has been transferred to the Supreme Court' by sections 16 and 25, sub-section 10 iq) The cases on this subject are numerous. Shelley v. Westbrooke, Jac. 266; WellesUy v. Wellealey, 2 Bligh N. S. 134; Anonymous, 2 Sim.- N. S. 54; In re Besant, 11 Ch. D. 508; Smart v. Smart, [1892] A. C. 425; may be cited as illustra- tions of the principles stated in the text. (r) Varisittart v. Vansittart, 2 De G. & J. 249; Swift v. Swift, 4 De G. J. & S. 710. (s) In re Agar-Ellis, Agar-Ellis v. Lascelles, 24 Ch. D. 317. (t) Wellesley v. Wellesley, 2 BUgh N. S. 124. § 1341a— 1350.] inpakts. 565 of the Judicature Act, 1873 (w). These principles are still in force and are recognized and confirmed by a number of statutes which have intro- duced fresh considerations for the determination of the question, and to this extent have modified the judgment of the court on a given state of facts {xj. The first statute is 2 & 3 Vict. c. 56 (commonly called Talfourd's Act), which gave the wife for the first time a right of access to the child, and enabled the court to commit the custody of the child, if under seven years, to her care (y). This statute was repealed, but in terms re-enacted, by the Custody of Infants Act, 1873, 36 & 37 Vict. c. 12, the main alteration being that the custody of a child under sixteen years of age may be committed to the mother, and provision is made for a right of access to the infant by either parent by order of the court (a). By section 2 of the same statute a provision in a separation deed that a mother shall have the custody or control of an infant is legalized, subject to the important proviso, that ' ' no court shall enforce any such agreement if the court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto " (a). By the Guardianship of Infants Act, 1886, 49 & 50 Vict. c. 27, on the death of the father of an infant, the mother if surviving becomes the guardian of the child, either alone when the father has not appointed a guardian or jointly with any guardian appointed by the father. And the court is empowered to appoint a guardian or guardians to act jointly with the mother "if it shall think fit. ' ' The mother is also empowered to appoint a guardian to act after the death of herself and the father of an unmarried infant, and make a provisional appointment, which requires the sanction of the court, of a guardian to act jointly with the father. And the court may commit the custody of an infant to either parent with a right of access to either parent on the application of the mother, " having regard to the welfare of the infant, the conduct of the parents, and to the wishes as well of the mother as of the father. ' ' The court may now by force of the Custody of Children Act, 1891, refuse to assist a parent who has ' ' abandoned or deserted ' ' an infant or has otherwise been " unmindful of his parental duties," to put it shortly, to recover the custody of the infant. By section 8 of the Children Act, 1908, the powers of the court are further enlarged where the parent has been guilty of cruelty. § 1350. It would be a subject of curious inquiry, to ascertain the nature and extent of the parental power in the Roman law, and also the nature and extent of the powers and duties of guardians in the same law, and the manner of their appointment ; but it would lead us («). In rs Goldsworthy, 2 Q. B. D. 75. (x) See Smart v. Smart, [1892] A. C. 425. (y) Ex parte Woodward, 17 Jur. 56. (z) In re Elderton (Infants), 26 Ch. D. 220. (o) In re Besant, 11 Ch. D. .508; Besant v. Wood, 12 Ch. D. 605; Hart v. Hart, 18 Ch. D. 670. 566 EQUITY JURISPRUDENCE. [CH. XXXIV. too far from the immediate object of these Commentaries. It is highly probable that the common law, as well as the equity jurisprudence of England, has borrowed many of its doctrines on this subject from this source. Guardians (who were appointed on the death of the father) were, in the Boman law, of two sorts : (1) tutors, who were guardians of males until their age of fourteen years, and of females until their age of twelve years ; and (2) curators, who were then appointed their guardians, and continued such until the minors respectively arrived at the age of twenty-five years, which was the full majority of the Eoman law. Guardians were usually selected from the nearest relations, and might be nominated by the father or mother during their lifetime. But they were required to be appointed and confirmed by the proper judge or magistrate of the place where the minor resided; and they were removable for personal misconduct, or for ill-treatment of the minor, or for bad management of his estate. But, while any one remained guardian, he was bound to take care of the person of the minor; to provide suitable maintenance out of his estate; to super- intend his morals and education; and to exercise a prudent manage- ment over his estate (b). In many respects, indeed, the court, in the exercise of its authority over infants, implicitly follows the very dictates of the Eoman code. § 1351. It might seem, upon principle, that the jurisdiction of the court over infants ought not to have been confined to cases where a suit is depending for property in that court. It would seem to belong to the Court of Chancery, as the general delegate of the crown, acting as parens patriae., for the protection of the persons and property of those who are unable to take care of themselves, and yet possess the means of maintenance, and are without any other suitable guardian; and upon that ground, that it ought to reach all cases where the person or the property of the infant required the protection of the court, without any inquiry whether there was a ground for actual litigation or not. But, in practice, it seems to have been limited to cases where an action is actually pending, even when the whole gravafnen of the action is a mere fiction (c). § 1352. We are next led to the consideration of what constitutes an infant a ward of court, in respect to whom the court interferes in a great variety of cases, when it would not, if the infant did not stand (b) Inst. Lib. 1, tit. 20 to 26. (c) It often occurs, that a bill is filed for the eole purpose of making an infant i. ward of chancery ; but in such a case the bill always states, however untruly, that the infant has property within the jurisdiction, and the bill is brought against the person in whose supposed custody or power the property is. Johnstone v. Beattie, 10 CI. & P. 42. Why such a mere fiction should be resorted to, has never, as it seems to me, been satisfactorily explained ; and why the Lord Chancellor, exercising the prerogative of the crown as parens patr-ire, might not, in his discretion, appoint a guardian to an infant, having no other guardian, without any bill being filed, seems difficult to understand upon principle. But the practice seems founded upon narrower ground. § 1351—1354.] INFANTS. 567 in that predicament in relation to the court. Properly speaking, a ward of court is a person who is under a guardian appointed by the court (d). But, wherever an action is brought relative to the person or property of an infant, although he is not under any general guardian appointed by the court, he is treated as a ward of the court, and as being under its special cognizance and protection. But unless there is some actual litigation to which the infant is a party, a proceeding relative to an infant's property will not constitute him a ward of court (e). § 1353. In all cases where an infant is a ward of court, no act can be done affecting the person, or property, or state of the minor, unless under the express or implied direction of the court itself. Every act done without such direction is treated as a violation of the authority of the court, and the offending party will be arrested upon the proper process for the contempt, and compelled to submit to such orders and such punishment by imprisonment, as are applied to other cases of contempt. Thus, for example, it is a contempt of court to conceal or withdraw the person of the infant from the proper custody (/); to disobey the orders of the court in relation to the maintenance or educa- tion of the infant; or to marry the infant without the proper consent or approbation of the court. Of the latter more will be presently stated (gf). Indeed, when once the court has thus directly or indirectly assumed authority over the person or property of an infant, as its ward, it acts throughout with all the anxious care and vigilance of a parent; and it allows neither the guardian, nor any other person, to do any act injurious to the rights or interests of the infant. § 1354. In the next place, in regard to the maintenance of infants. Whenever the infant is a ward of court and an action is pending in the court, the court will, of course, direct a suitable maintenance for the infant, having a due regard to the rank, the future expectations, the intended profession or employment, and the property of the latter. But, where there is already a guardian in existence, not deriving his authority from the court, and where there is no action in the court touching the infant or his property, there formerly existed a doubt whether the court could interfere summarily to direct a suitable maintenance of the latter. The effect of this doubt was to allow the guardian to exercise his discretion at his own peril; and thus to leave much to his sense of duty, and much more to his habits of bold or of timid action in assuming responsibility. At present, the practice (d) Johnstone v. Beattie, 10 CI. &¥. 42; Stuart v. Marquis of Bute, 9 H. L. C. 440; Gynn v. Qilbard, 1 Dr. & Sm. 356; In re Hodges, 3 K. & J. 213; In re Graham, L. B. 10 Bq. 530. (e) In re Dalton, 6 De G. M. & G. 201 ; In re Hillary, 2 Dr. & Sm. 461 ; Ex parte Brewer, 2 Dr. & Sm. 562; Brown v. Collins, 25 Ch. D. 56. (/) Wellesley's Case, 2 Euss. & M. 159; Ramsbothatn v. Senior, L. B. 8 Bq. 575 (g) Post, § 1358. 568 EQUITY JURISPRUDENCE. [CH. XXXIV. which grew up of entertaining such an application without a formal suit is adopted, the procedure being by summonses in chambers (h). § 1354a.. But, in regard to the maintenance of infants out of their own property, it is important to difierentiate between two classes of cases, one where there is a trust for maintenance, and the other a power for maintenance. In the first case the father is entitled to have the income paid to him irrespective of his ability to maintain the infant children, and in the second his right is measured by his ability to maintain them, unless the trustees are empowered to apply the income in the maintenance of the infant children, and exercise that power in fact (j). In an exceptional case, the court has allowed maintenance to a father of large independent means (k). Another category must also be borne in mind. Where a maintenance clause fixes a sum to be allowed and directs the surplus income to be accumulated, the court may exceed the sum so fixed if a special case be made justifying the increase, unless there are additional words restricting the right to exceed that allowance (l). A mother is not regarded as bound to support her infant children, and mainten- ance is allowed irrespective of her ability (m). § 13546. The court, also, is not limited in its authority, in regard to maintenance, to cases where the infant is resident within the territorial jurisdiction of the court, or the maintenance is to be applied there. But in suitable cases, and under suitable circumstances, it will order maintenance for an infant out of the jurisdiction, taking caore to impose such conditions and restrictions on the party apply- ing for it as will secure a proper application of the money (n). § 1355. In allowing maintenance, the court will have a liberal regard to the circumstances and state of the family to which the infant belongs; as, for example, if the infant be an elder son, and the younger children have no provision made for them, an ample allowance will be allowed to the infant, so that the younger children may be maintained (o) ; or for the support of an illegitimate brother (p). Similar considerations will apply if a father of an infant is in distress or narrow circumstances (q). On the other hand, in allowing maintenance, the court usually confines itself within the limits of the income of the property. But where the property is small, and more means are necessary for the due maintenance of the infant, the court will sometimes allow the capital to be broken ()i) Rules of the Supreme Court, 1883 Order LV. r. 2 (125. (i) Brophy v. Bellamy, L. E. 8 Ch. 798; Wilson v. Turner, 22 Ch. D. 521. (k) Jervoise v. Silk, G. Coop. 52. (l) In re Walker, Walker v. Duncombe, [1901] 1 Ch. 879. (m) Haley v. Bannister, 4 Mad. 27S ; Douglas v. Andrews, 12 Beav. 310. (?i) Stephens v. James, 1 Myl. & K. 627. (o) Lanoy v. Duke of Athol, 2 Atk. 447; Burnet v. Burnet, 1 Bro. C. C. 179, and Mr. Belt's note. (p) Bradshaw v. Bradshaw, 1 Jac. & W. 647. (g) Allen v. Coster, 1 Beav. 201. § 1354a— 1357.] infants. 569 in upon (?•). But, without the express sanction of the court, a trustee or guardian will not be permitted, of his own accord, to break in upon the capital (s). § 1355a. By Lord Cranworth's Act (28 & 24 Vict. c. 145), s. 28, it was provided that, in all cases where any property is held by trustees, in trust for an infant, either absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence of any event previously to his attaining that age, it shall be lawful for such trustees, at their sole discretion, to pay to the guardians (if any) of such infant, or otherwise to apply for or towards the maintenance or .education (t) of such infant, the whole or any part of the income to which such infant may be entitled in respect of such property, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such maintenance or education or not ; and such trustees shall accumulate all the residue of such income by way of compound interest by investing the same and the resulting income therefrom in proper securities, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen; provided always that it shall be lawful for such trustees at any time, if it shall appear to them expedient, to apply the whole or any part of such accumula- tions as if the same were part of the income arising in the then current year. These provisions are in substance re-enacted by the Conveyancing Act, 1881, s. 48, sub-ss. 1, 2, and 3. But they may be excluded by a contrary intention expressed in the instrument. The intermediate income of a contingent gift cannot be applied under the section, unless the infant will become absolutely entitled to the income as an accretion to the capital (m). But where the capital is given to members of a class who shall attain twenty-one, as each has an equal chance of sharing in the fund when it becomes devisable, maintenance may be given (x).' § 1356. In the next place, in regard to the management and disposal of the property of infants. And here, the court will exercise a vigilant care over guardians in the management of the property of the infant. § 1357. Guardians should not change the personal property of the infant into real property, or the real property into personalty; since it may not only affect the rights of the infant himself, but also his representatives, if he should die under age, unless it is manifestly (r) Bridge v. Brown, 1 Y. & C. Ch. 181; Ex paHe Hays, 3 De G. & Sm. 485; In re Welch, 23 L. J. Ch. 344. (s) Walker v. Wetherell, 6 Ves. 474. it) In the Conveyancing Act, 1881, s. 43, sub-s. 2, the word benefit is added. («) In re Dickson, Hill v. Grant, 29 Ch. D. 331 ; In re Bowlby, B'owlby v. Bowlby, [1904] 2 Ch. 685. (x) In re Holford, Holford v. Holford, [1894] 3 Ch. 30; In re Jeffery, Arnold v. Burt, [1895] 2 Ch. 537. 570 EQUITY JURISPRUDENCE. [CH. XXXIV. for the benefit of the infant, change the nature of the estate; and the court will support their conduct, if the act be such as the court itself would have done, under the like circumstances, by its own order. The act of the guardian, in such a case, must not be wantonly done; but it must be for the manifest interest and convenience of the infant (y). And when the court directs any such change of property, it directs the new investment to be in trust for the benefit of those who would be entitled to it, if it had remained in its original state («). § 1358. In the next place, in regard to the marriage of infants. This is a most important and delicate duty of the court, which it exercises with grea.t caution in relation to all persons who are wards of ccfurt. No person is permitted to marry a ward of court without the express sanction of the court, even with the consent of the guardian. If a man should marry a female ward without the consent and approbation of the court, he (»), and all others concerned in aiding and abetting the act (6), will be treated as guilty of a contempt of the court; and the husband himself, even though he were ignorant that she was a ward of court, will still be deemed guilty of a contempti (c). § 1359. In all cases where the court appoints a guardian, or committee in the nature of a guardian, to have the care of an infant, it is accustomed to require the party to give a recognizance that the infant shall not marry without the leave of the court; which form is rarely altered, and only upon special circumstances. So that, if an infant should marry, though without the privity, or knowledge, or neglect of the guardian, or committee; yet the recognizance would in strictness be forfeited, w^hatever favour the court might, upon an application, think fit to extend to the party, when he should appear to have been in no fault (d). § 1360. With a view, also, to prevent the improper marriages of its wards, the court will, where there is reason to suspect an intended and improper marriage without its sanction, by an injunction, not only interdict the marriage, but also interdict communications between the ward and the admirer; and if the guardian is suspected of any (y) Inwood v. Twyne, Ambler 417, and Mr. Blunt's note; s.o. 2 Eden 148, and Mr. Eden's note. The rule seems now to be, that it is the duty of the court to pre- serve the estates of all infanta in the condition in which the ancestor has left them, unless some overwhelming necessity is shown for conversion. Marquis Camden v. Murray, 16 Ch. D. 161, at p. 171. (z) Ware v. Polhill, 11 Ves. 257; Ex parte Phillips, 19 Ves. 118; Webb v. Lord Shaftesbury, 6 Mad. 100. (a) Bathurst v. Murray, 8 Ves. 74; Field v. Brown, 17 Beav. 146; Cox v. Ben- nett, 31 L. T. 83. (b) Eyre v. Countess of Shaftesbury, 2 P. Wms. 103, 112; More v. More, 2 Atk. 157; Priestley v. Lamb, 6 Ves. 421. (c) Eyre v. Countess of Shaftesbury, 2 P. Will. 103. (d) Eyre v. Countess of Shaftesbury, 2 P. Will. 112; Dr. Davis's Case, 1 P. Will. 698. § 1358— 1361b.] INFANTS. 571 connivance, it will remove the infant from his care and custody, and place the infant under the care and custody of a committee (e). Lord Hardwicke has justly remarked, that this jurisdiction is highly important in its exercise under both of these aspects; in the first place, when it is exercised by way of punishment of such as have done any act to the prejudice of the ward; in the next place, by the still more salutary and useful exercise, by way of prevention, when it restrains persons from doing any act to disparage the ward, before the act has been completed (/). But the court has no jurisdiction to compel an infant ward of court to make a settlement of his own property because he has been guilty of contempt in marrying without leave {g). § 1361. In case of an offer of marriage of a ward, the court will refer it to a master, to ascertain and report, whether the match is a suitable! one, and also what settlement ought to be made. And where a marriage has been actually celebrated without the sanction of the court, the court will not discharge the husband, who has been committed for the contempt, until he has actually made such a settle- ment upon the female ward, as, upon a reference to a master, shall, under all the circumstances, be deemed equitable and proper. One important consideration is whether there has been any circumstance of aggravation (h). If there has been, the husband will be excluded from all direct benefit under the settlement, but a general power to the wife to appoint by will in case of default of issue is a proper provision, although the husband might ultimately derive an interest in the wife's property (i). It will not make any difference in the case, that the ward has since arrived of age, or is ready to waive her right to a settlement; for the court will protect her against her own indiscretion, and the undue influence of her husband {k). § 1361b. The court refuses to interfere with the custody of foreign guardians and their control of their wards, upon mere grounds of expediency and advantage to the wards. If there is English property belonging to the wards, English guardians will be appointed to supplement the office and duty of the foreign guardians, in case of neglect or abuse, and to bring the matter before the court for proper directions. But no interference with the control of the person of the wards by the foreign guardians will be allowed until some case of abuse is shown. The court will not in such case entertain any question of the preference of the wards and the greater advantage to them of English control or education (I). (e) Smith v. Smith, 3 Atk. 304; Pearce v. Crutchfield, 14 Ves. 206, (/) Smith V. Smith, 3 Atk. 305. (iji) In re Leigh v. Leigh, 49 Ch. D. 290. (h) Bathurst v. Murray, 8 Ves. 74; Anon., 4 Buss. 473. (i) Att.-Gen. v. Lucas, 2 Ph. 753; In re Sampson v. Wall, 25 Ch. D. 482. (&) Stevens v. Savage, 1 Ves. Jun. 154. (!) Daniel v. Newton, 8 Beav. 485; In re Dawson, Dawson v. Jay, 2 Sm. & G. 199; Nugent v. Vetsera, L. E. 2 Eq. 704; In re Bourgoise, 41 Ch. D. 610. 572 EQUITY JURISPRUDENCE. [CH. XXXV. CHAPTER XXXV. IDIOTS AND LUNATICS. § 1362. With this brief exposition of the jurisdiction and doctrines of the Court of Chancery, in regard to infants, we may dismiss the subject and proceed to the consideration of the jurisdiction in relation to Idiots and Lunatics. The remarks, which have been already made, to distinguish the jurisdiction of the court in this class of cases from that exercised in cases of infants, have, in a great measure, anticipated, and brought under discussion, the explanations proper for this place (a). If the preceding views of this subject are correct, the Court of Chancery might properly have been deemed to have had, originally, as the general delegate of the authority of the crown, as parens ■patrise, the right, not only to have the custody and protection of infants, but also of idiots and lunatics, when they have no other guardian. But this claim to an original jurisdiction had been discountenanced judicially by Lord Loughborough (b) and Lord Eldon (c), who have pointed out that the delegation to the Lord Chancellor was only for the purposes of administration; and the choice of that officer accidental and not compulsory. Since 1851, the Lords Justices have been appointed under the royal sign-manual, and by the Lunacy Act, 1890, 53 Vict. c. 5, sec. 108, the delegates of the crown are to be chosen among the holders of the Great Seal or the Judges of the Supreme Court (d). § 1363. But the statute of 17 Ed. 2, cc. 9, 10, introduced some new rights, powers, and duties of the crown; and since that period, the jurisdiction is not the same as in the case of infants, nor are the doctrines of the judge the same in all respects. Still, for the most part, they agree in substance; and, in a work like the present, there would be little utility in a more minute and comprehensive enumera- tion of the distinctions and differences between them. § 1364. But whatever may be the true origin of the authority of the crown, as to idiots and lunatics, the judges of the Court of Lunacy do not at the present day act, in all cases, under the special warrant by the sign-manual, but the jurisdiction and procedure are regulated by statute — the Lunacy Act, 1890, 53 Vict. c. 5 and (a) Ante, § 1334 to 1336. (b) Oxenden v. Lord Compton, 2 Vea. Jun. 72. (c) Ex parts Phillips, 19 Ves. 118; Sherwood v. Sanderson, 19 Ves. 28Q.- (d) In re Catheart, [1893] 1 Ch. 466. § 1362—1365.] IDIOTS and lunatics. 573 amending statute. The statute empowers the court to provide for the maintenance of idiots and lunatics, and for the care of their persons and estates; and no more (e). "When a person is ascertained to be an idiot or lunatic (/), the court proceeds to commit the custody of the person and estate of the idiot or lunatic, sometimes to the same person, and sometimes to different persons, aecordi-ng to circum- stances, and to direct for him a suitable maintenance (g). It is usual to take bond from the committees to account and submit to the orders of the court; but it is not absolutely necessary so to do (h). § 1364a. By the present construction of 3 & 4 Will. 4, c. 74, the Lord Chancellor has authority to give consent, on the part of a lunatic, tenant in tail in possession, that the first tenant in tail in remainder may bar the subsequent limitations, on a proper case being made out for the exercise of that authority (i). In the case of a devise of real and personal estate, to trustees, to apply the whole, or any part of the rents, to the maintenance of an imbecile person, it was held that the trustees could not interpose that discretionary power to oust the jurisdiction of the court; and that the trust was in exonera- tion of the private property of the cestui que trust, so that his personal representative might claim to have recouped out of the income of the trust property any sum which he may have applied out of the private property of the imbecile towards his maintenance (fc). § 1365. In regard to the manner of ascertaining whether a person is an idiot or lunatic, or not, a few words will suffice. Upon a proper petition, a commission issues out of lunacy, on which the inquiry is to be made, as to the asserted idiocy or lunacy of the party {I). The inquisition is always had and the question tried by a jury, or before a master in lunacy, whose unimpeached verdict becomes conclusive upon the fact. The commission is not confined to idiots or lunatics, strictly so called; but in modern times it is extended to all persons who, from disease or age, are incapable of managing their (e) Lysaght v. Royse, 2 Sch. & Lefr. 153. In order that the chancellor should deal with the property of a lunatic at all, it is necessary that a commission should be taken Out, or that the lunatic should be a party in a cause; otherwise the court has no jurisdiction. Gilbee v. GUbee, 1 Phil. 121. (/) As to the jurisdiction of chancery to interfere for the protection of a lunatic not found so by inquisition, see Nelson v. Buncombe, 9 Beav. 211. ig) Dormer's Case, 2 P. Will. 263; Sheldon v. Fortescue Aland, 3 P. Will. 110; Lysaght v. Boyse, 2 Sch. & Lefr. 153; Ex parte Chumley, 1 Ves. Jun. 296; Ex parte Baker, 6 Ves. 8; Ex parte Pickard, 3 Ves. & B. 127; In r,e Webb, 2 Phil. 10. (h) In re Frank, 2 Buss. 450; In re Burroughs, 2 Dru. & War. 207; Ex parte Mount, 21 L. J. Ch. 221. (i) In re Blewitt, 6 De G. M. & G. 187 ; In re Wynne, L. E. 7 Ch. 229. And property falling to a lunatic will be applied to past maintenance, though no inquisition had been had. In re Gibson, L. E. 7 Ch. 52. So, income of the separate estate of a married woman may be applied to her support when lunatic. In re Baker's Trusts, L. K. 13 Eq. 168. {k) In re Sanderson's Trusts, 8 Kay & J. 497. (I) Lunacy Act, 1890, Part III. 574 EQUITY JURISPRUDENCE. [CH. XXXV. own affairs, and therefore are properly deemed of unsound mind, or non compotes mentis (m). § 1365a. The jurisdiction of the court over lunatics is not confined to lunatics domiciled within the country; but a commission of lunacy may issue where the lunatic has lands or other property within the State, although he is domiciled abroad (n.). (m) Lunacy Act, 1890, sect. 116, sub-s. 1 (d). (n) Lunacy Act, 1890, sects. 90, 96. Southcote's Case, 2 Ves. Sen. 402. § 1365a — 1367.] married, women. 575 CHAPTER XXXVI. MARRIED WOMEN. § 1366. We may next proceed to the consideration of the pecuhar jurisdiction exercised by courts of equity, in regard to the persons and property of Married Women ; and, principally, in regard to their property. It is not our design, in these Commentaries, to enter upon any consideration of the general doctrines relative to the rights, duties, powers, and interests of husband and wife, which are recog- nised at the common law. That would properly belong to a treatise of a very different nature. It will be sufficient, for our present purpose, to examine those particulars only which are pecuhar to courts of equity, or in which a remedial justice is applied by them beyond, or unknown to, the common law. Although these doctrines are for the most part rendered obsolete by the operation of the Married Women's Property Act, 1882, from their historical importance it is considered advisable to retain them in the text. § 1367. It is well known that, at the common law, husband and wife were treated, for most purposes, as one person ; that is to say, the very being or legal existence of the woman, as a distinct person, was suspended during the marriage, or, at least, was incorporated and consolidated with that of her husband. Upon this principle, of the union of person in husband and wife, depended almost all the legal rig'hts, duties, and disabilities which either of them acquired by or during the marriage (a). For this reason, a man could not grant anything to his wife, or enter into a covenant with her; for the grant would have supposed her to possess a distinct and separate existence. And, therefore, it was also generally true, that contracts made between husband and wife, when single, were avoided by the intermarriage (b). Upon the same ground it is, that, if the wife were injured in her person or property during the marriage, she could bring no action for redress without the concurrence of her husband, neither could she be sued, without making her husband also, a party in the cause (c). All this is very different in the civil law, where the husband and wife are considered as two distinct persons; and may have separate (a) 1 Black. Coram 442. I have qualified Blackstone'a text by adding the words, " for most purposes; " for, in some respects, even at law, she is treated as a distinct person; as, for example, she may commit crimes separately from her husband; she may act as an attorney for him, or for others; she may levy a fine; she may swear articles of peace against him. (b) 1 Black. Comm. 442. (c) 1 Black. Comm. 443. 576 EQUITY JURISPRUDENCE. [CH. XXXVI. estates, contracts, debts, and injuries (d); and may also, by agreement with each other, have a community of interest, in the nature of a partnership. § 1368. Now, in courts of equity, although the principles of law, in regard to husband and wife, were recognised and not interfered with actively, yet they were not exclusively considered. On the contrary, courts of equity, for many purposes, treated the husband and wife as the civil law treats them, as distinct persons, capable (in a limited sense) of contracting with each other, of suing each other, and of having separate estates, debts, and interests (e). A wife might, in a court of equity, sue her husband, and be sued by him (/). And in cases respecting her separate estate, she might also be sued without, him (g) ; although he was ordinarily required to be joined for the sake of conformity to the rule of law, as a nominal party, when- ever he was within the jurisdiction of the court, and could be made a party (h). § 1369. In the further illustration of this subject, we shall consider, first, the cases in which contracts between husband and wife would be recognized and enforced in equity ; secondly, the manner in which a wite might acquire a separate estate, and her powers and interest, therein; thirdly, the equity of the wife to a settlement out of her own property, not reduced into the possession of her husband; and, fourthly, her claim in equity for maintenance and alimony. § 1370. And first, in regard to contracts between husband and wife. By the general rules of law, as has been already stated, the contracts made between husband and wife before marrriage became, by their matrimonial union, utterly extinguished (/). Thus, for example, if a man should give a bond to his wife, or a wife to her husband, before marriage, the contract created thereby would, at law, be discharged by the intermarriage (fc). Courts of equity, although they generally followed the same doctrine, would, in special cases, in furtherance of the manifest intentions and objects of the parties, carry into effect such a contract made before marriage between husband and wife, although it would be avoided at law (I). An agree- ment, therefore, entered into by husband and wife, before marriage, for the mutual settlement of their estates, or of the estate of either upon the other, upon the marriage, even without the intervention of trustees, would be enforced in equity, although void at law; for (d) 1 Black. Comm. 444. (e) Woodward v. Woodward, 3 De G. J. & S. 672; Butler v. Butler, 16 Q B. D. 831. (/) Cannel v. Buckle, 2 P. Will. 243, 244. (g) Dubois v. Hole, 2 Vern. 613, and Mr. Balthby's note (1). (h) See Lillia v. Airey, 1 Vea. Jun. 278. (i) Co. Litt. 112a, 187b. (k) Com. Dig. Baron d Feme, D. 1 ; Cro. Car. 551 ; Co. Litt. 264b. (I) Rippon V. Dawding, Ambler 566, and Mr. Blunt's note. § 1368 1372.] MARRIED WOMEN. 577 equity would not suffer the intention of the parties to be defeated by the very act which is designed to give effect to such a contract (rn). On this ground, where a wife, before marriage, gave a bond to her intended husband, that, in case the marriage took effect, she would convey her estate to him in fee, the bond was, after the marriage, carried into effect in equity, although it was discharged at law. Upon that occasion Lord Macclesfield, L.C., said : " It is unreasonable that the intermarriage, upon which alone the bond was to take effect, should itself be a destruction of the bond. And the foundation of that notion is, that at law the husband and wife, being one person, the husband cannot sue the wife on this agreement ; whereas, in equity, it is constant experience that the husband may sue the wife, or the wife the husband; and the husband might sue the wife upon this very agreement " (w). § 1371. If a debt were by specialty, then owing to a technicality based upon a formal procedure (o), a widow might pursue her remedies at law against the personal representatives of a covenantor with whom she had subsequently intermarried, as in the case of a bond to leave her a sum of money by will (p), or a covenant to pay an annuity (g). The reason being that there no longer existed any objection to parties at the time of action brought (r). A fortiori, such an agreement would be specifically decreed in a court of equity (s). Therefore, where a husband covenanted before marriage with his intended wife, that she should have power to dispose of £300 of her estate, he was afterwards held bound specifically to perform it (t). The wife might even execute a power to dispose of property so reserved to her, in favour of her husband. Since the Married Women's Property Act, 1882, these ante-nuptial contracts between man and woman would have full force to them whether in equity or at law. § 1372. In regard to contracts made between husband and wife after marriage, a fortiori the principles of the common law applied to pronounce them a mere nullity ; for there was deemed to be a positive incapacity in each to contract with the other. But here again, although courts of equity followed the law, they could, under particular circumstances, give full effect and validity to post-nuptial contracts. Thus,, for example, if a wife, having a separate estate, (to) Moore v. Ellis, Bunb. 205; Fursor v. Penton, 1 Vern. 408; Cotton v. Cotton, Prec. Ch. 41; s.c. 2 Vern. 290, and Mr. Eaithby'e note. («.) Cannel v. Buckle, 2 P. Will. 243, 244; B.C. 8 Eden, 252 to 254. (o) Schlencker v. Moxsy, 3 B. & C. 789; Baber v. Harris, 9 A. & E. 532. (p) Gage v. Acton, 1 Salk. 325; s.c. 1 Ld. Eaym. 516; Milbourn v. Ewart, 5 T. E. 381. (g) Fitzgerald v. Fitzgerald, L. E. 2 P. C. 83. (r) See Rose v. Poulton, 2 B. & Ad. 822. (s) Rippon V. Dawding, Ambler 566, and Mr. Blunt 's note; Prebble v. Boghurst, 1 Swanst. 309. (t) Fursor v. Penton, 1 Vern. 408, and Mr. Eaithby'B note; Wright v. Cadogan, 2 Eden, 252. E.J. 37 578 EQUITY JURISPRUDENCE. [CH. XXXVI. should, bona fide, enter into a contract with her husband, to make him a certain allowance out of the income of such separate estate for a reasonable consideration, the contract, althougfh void at law, was obligatory, and has been enforced in equity (u). So, if the husband should, after marriage, for good reasons have contracted with his wife, that she should separately possess and enjoy property be- queathed to her, the contract would have been upheld in equity (x). So, if a husband and wife for a bona fide and valuable consideration, should have agreed that he should purchase land and build a house thereon for her, and she should pay him therefor out of the proceeds of her own real estate; if he should perform the contract on his side, she also would have been compelled to perform it on her side (y). Nay, if an estate were devised to a husband for the separate use of his wife, it was considered as a trust for the wife, and he would be compelled to perform it {z). § 1373. It was upon similar grounds, that a wife might become a creditor of her husband, by acts and contracts during marriage ; and her rights, as such, would be enforced against him and his representatives. Thus, for example, if a wife should have united with her husband to pledge her estate, or otherwise to raise a sum of money out of it to pay his debts, or to answer his necessities, Whatever might be the mode adopted to carry that purpose into efiect, the transaction would, in equity, have been treated according to the true intent of the parties. She was deemed a creditor or a surety for him (if so originally understood between them) for the' sum so paid; and she was entitled to reimbursement out of his estate, and to the like privileges as belong to other creditors (a). § 1374. In respect also to gifts or grants of property by a husband to his wife after marriage, they were, ordinarily (but not universally), void at law. But courts of equity would uphold them in many cases where they were held void at law; although, in other cases, the rule of law was recognised and enforced. Thus, for example, if a husband should, by deed, have granted all his estate or property to his wife, the deed was held inoperative in equity, as it would be in law; for it could in no just sense be deemed a reasonable provision for her (w'hich was all that courts of equity held the wife entitled to); and, in giving her the whole, he would surrender all his own interest (6). (u) More v. Freeman, Bunb. 205. {x) Harvey v. Harvey, 1 P. Will. 125, 126; s.o. 2 Vern. 659, 760, and Mr. Eaithby's note. (y) Townshend v. Windham, 2 Ves. Sen. 7. (z) Barley v. Darley, 3 Atk. 399; Rich v. Cockell, 9 Ves. 375; post, § 1380. (o) Jackson v. Innes, 1 Bligh, 104. See now the Married Women's Property Act, B. 8. (b) Beard v. Beard, 3 Atk. 71. § 1373 — 1375a.] married womek. 579 § 1375. But, on the other hand, if the nature and circumstances of the gift or grant, whether it be express or implied, were such that there was no ground to suspect fraud, and it amounted only to a reasonable provision for the wife, it would, even though made after coverture, be sustained in equity (c). Thus, for example, gifts, made by the husband to the wife during the coverture, to purchase clothes, or personal ornaments, or for her separate expenditure (commonly called pin-money), and personal savings and profits made by her in her domestic management, which the husband allowed her to apply to her own separate use {d), were held to vest in her, as against her husband (but not as against his creditors), an imimpeachable right of property therein, as her exclusive and separate estate (e). It is true that courts of equity required evidence to establish such gifts as a matter of intention and fact; but, when that was established, full effect will be given to them (ee). § 1375a. Pin-money is a very peculiar sort of gift for a particular purpose and object, and, whether it is secured by a settlement or otherwise, it is still required to be applied to those purposes and objects (/). It is not deemed to be an absolute gift, or, as it is some- times said, out and out, by the husband to the wife. It is not considered like money set apart for the sole and separate use of the wife during coverture, excluding the jus mariti. But it is a sum set apart for a specific piurpose, due, or given to, the wife, in virtue of a particular arrangement, payable and paid by the husband in virtue of that arrangement, and for that specific purpose. Pin-money is a sum paid in respect to the personal expense of his wife, for her dress and pocket-money; and hence, as the very name seems to import, it has a connection with her person, and is to deck and attire it. The husband, therefore, as well as the wife, may be said to have an interest in it; for the wife is to dress (it has been said) according to his rank, and not her own. It is upon this ground that courts of equity refuse to go back to call upon the husband to pay beyond the arrears of a year, although stipulated for by a, marriage settlement; for the money is meant to dress the wife during the year, so as to keep up the dignity of the husband, and not for the accumulation of the fund. This provides a check and control to the husband. It prevents the wife from misspending the money. It secures the appropriation of the money to its natural and original purpose. It is vidth this view, quite as much as on account of the presumed satisfaction by acquiescence, that courts of equity have established (c) Walter v. Hodge, 2 Swanst. 106, 107; Lucas v. Lucas, 1 Atk. 270, 271. (d) Slanning v. Style, 3 P.' Will. 337. (e) Sir Paul Neal's case, cited in Prec. Ch. 44; Lucas v. Lucas, 1 Atk. 270; Graham v. Londonderry, 3 Atk. 393 to 395. (ee) Lloyd v. Pughe, L. E. 8 Oh. 88. (/) Jodrell V. Jodrell, 9 Beav. 45 580 EQUITY JURISPRUDENCE. [CH. XXXVI. the principle above stated, not to allow the wife to claim pin-money beyond the yeM'. On the same ground it is, that the personal repre- sentatives of the wife are not allowed to make any claim for the arrears of pin-money, not even for arrears of a year; for the allow- ance has a sole regard to the personal dress and expenses of the wife herself during that period. And hence, also, it is, that if the wife becomes insane, and remains so until her death, if the husband has maintained her, and taken suitable care of her, according to her rank and condition, courts of equity will not allow her personal repre- sentatives to' make any claim for any arrearages of pin-money, even secured by a marriage settlement (g). § 1376. Under the like consideration, in a great measure, falls the right of the wife to her paraphernalia; a term originally of Greek derivation (where it means something reserved over and above dower, or a dotal portion), and aiterwards imported into the civil law, and from thence adopted into the language or the common law (h), in which it includes all the personal apparel and ornaments of the wife, which she possesses, and which are suitable to her rank and condition in life (i). The husband in his lifetime may dispose of her paraphernalia, excepting, indeed, her necessary apparel ; and they are liable to the claims of creditors, with the like exception (k). But the wife is entitled to her paraphernalia against his representatives; for the husband cannot by will dispose of them, or leave them to his representatives (l). The court fully recognise this right of the husband and his creditors ; although in case of the latter, if there are any other assets of the husband, they will, after his death, be marshalled against his representatives in favour of the widow (m). § 1377. There is, however, a distinction upon this subject of paraphernalia, which is entitled to consideration. Where the husband, either before or after marriage, gives to his wife articles of paraphernal nature, they are not treated as absolute gifts to her, as her own separate property ; for, if they were, she might dispose of them at any time, and he could not appropriate them to his own use. But they are deemed as, technically, paraphernalia to be worn by the wife as ornaments of her person; and so to be deemed gifts suh modo only (n). (g) Howard v. Earl of Digby, 2 CI. & P. 634; s.c. 8 Bligh N. S. 324; post, § § 1396, 1425. (h) Si res dentur in ea, quae Graeci irapiiptpva dicvint, quae Galli peculium appellant. Dig. Lib. 23, tit. 3, f. 9, § 3. Aa to these the Code declared : " Ut vir in his rebus, quas extra dotem mulier habet, quas Grseci irapcfi^cpva dicvint, nuUam uxore prohibente habeat communionem, nee aliqnam ei necessitatem imponat, &c. Nnllo modo (ut dictum est) muliere prohibente, virum in paraphernis se volumus immiscere." Cod. Lib. 5, tit. 14, 1. 8. (t) 2 Black. Comm. 435. (k) 2 Black. Comm. 435, 436. Lord Townshend v. Windham, 2 Ves. 1. (0 Tipping v. Tipping, 1 P. Will. 729; Seymore v. Tresilian, 3 Atk. 358. (m) Ante, § 568; Tipping v. Tipping, 1 P. Will. 729; Tynt v. Tynt, 2 P. Will. 542, 544, and Mr. Cox's note (1) ; Probert v. Clifford, Ambler 6, and Mr. Blunt's note. (n) Ridout v. Earl of Plymouth, 2 Atk. 104. § 1376 1381.] MARRIED WOMEN. 581 But, if the like articles were bestowed upon her by a father, or by a relative, or even by a stranger, before or after marriage, they would be deemed absolute gifts to her separate use; and then, if received wiiii the consent of her husband, he could not, nor could his creditors, dispose of them any more than they could of any other property received and held to her separate use (o). § 1378. In the next place, as to the manner in which a married woman might acquire a separate estate, and as to her powers and interests therein. It is well known that the strict rules of the old common law would not permit the wife to take or enjoy any real or personal estate separate from or independent of her husband. On the other hand, courts of equity, for a great length of time, admitted the doctrine, that a married woman is capable of taking real and personal estate to her own separate and exclusive use ; and that she has also an incidental power to dispose of it. § 1379. The power to hold real and personal property to her own separate and personal use, might be, and often was, reserved to her by marriage articles, or by an actual settlement made before marriage ; and, in that case, the agreement became completely obligatory between the parties after marriage, and regulated their future rights, interests, and duties. In like manner, real and personal property might be secured for the separate and exclusive use of a married woman after marriage ; and thus the arrangement might acquire a complete obligation between the parties. § 1380. It was formerly supposed that it was necessary, that the property, of which the wife was to have the separate and exclusive use, should be vested in trustees for her benefit ; or that the agreement of the, husband should be made with persons capable of contracting with him as trustees for her benefit. But, although this course was and is always pursued in formal settlements, yet it has been established for more than two centuries, in courts of equity, that the intervention of trustees is not indispensable; and that, whenever real or personal property was given or devised, or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the intention of the parties should be effectuated in equity, and the wife's interest protected against the marital rights and claims of her husband, and of his creditors also. In all such cases, the husband was held a mere trustee for her (p); or restrained by injunction from interfering with the property (g). § 1381. The reports contain a number of cases dealing with the construction of instruments in which conveyancers, instead of simply