in:s'^:i^ii^mms^ ■OF Tij: Jurisdiction yM^ and PleMmas ■of. ■' ■ BY ■■■ Olnrttpll ICaui Bt\)aa{ ICtbrary ilaraljaU lEquttg OloUertion (gift nf E. 3. iUaratjaU, Cffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 260 185 ^ /m ^ INSTITUTE JUEISDICTION MD OP THE EQUITY JUEISPEUDENCE AND PLEADINGS HIGH COURT OF CHANCERY; jFovm» U0eli in ^vattitt, AND WITH A COI^CISE VIEW OF THE EQUITY JUEISDICTION OF THE COUNTY COURTS. BY WILLIAM GKIFFITH, ESQ., B.A., B ABBI STEB-AT-Xi AW. LONDON : H. SWEET, 3, CHANCERY LA]SrE, FLEET STREET, Sain JSooitscUei anil iPutilieiin. 1868. (o^^TO roNDON : PRINTED BY C. KOWOKTH AND SONS, NEWTON STREET, HIGH HOLBORH. PREFACE. In venturing to adopt thes title given by the Emperor Justinian to one of his much celebrated law reforms, I have intended to exhi|;jit the character of the present treatise as an educational manual. I have attempted to excite the attention of the student by interesting historical information, to assist his apprehension by conciseness, to strengthen his judgment by giving to each principle its proper weight, and to facilitate his recollection by logical and scientific arrangement. In citing cases and other authorities I have not sought to prove what is universally admitted ; and when it seemed neces- sary to substantiate a rule or principle, or their working, I have avoided incumbering the memory by multiplying references. I have consulted most, if not aU, the writers of repute, but I have made it a rule to draw, where possible, from the fountain sources. Still a special acknowledgment is due to the learned Header on Equity to the four Inns of Court, whose lectures I had the advantage of hearing twelve years since. Keeping these objects in view I have at the same time been diligent to make the manual useful to the Practitioner in Chambers, in the County Courts, and in the High Court, by the citation of the latest authorities of moment, 7, Crown Office Kow, Temple, E.C. March, 1868. Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084260185 EQUITY JURISPRUDENCE. GENEKAL PART. INTEODTJCTION. PAGE The Origin and History of the High Court of Chancery, and of the Equity Jurisdiction administered in the Superior and Inferior Courts of England . . . . , . . . 1 Maxims 20 Trusts. History 28 Definition 29 How far Equity follows the Rules of the Common Law . . 29 Parties to a Trust 30 Express Trusts. Notion .. .. .. .. .. .. ..31 Species of .. •• ' -■ ■• .. .. ..31 Modes of creating .. .. .. .. .. .•32 Writing when requisite . . . . . . . . . . 33 Incomplete Conveyance .. .. ., ..33 ' Choses in Action, Legal . . . . . . . . 34 Acceptance by Trustee . . . . . . . . ..Si Disclaimer' . . . . . . • • . . . . . . 35 Discharge . . . . • • ■ . . . . . . . 3d Estate of Trustee 37 Breach of Trust 42 Investments .. .. .. ■• ■• .. ..43 Attainder or Conviction of Trustee 45 Truslee Relief Acts 46 Remedies of a Cestui que Trust 47 vi GENERAL PART. PAGE. Implied Trusts. Notion ■'"' I. Words precatory .. .. •- •■ ..51 II. Charges of Debts and Legacies 51 III. and IV. Satisfaction 51 V, Gift, Trust and Power 52 VI. Conversion .. •• •• •• •• .-56 VII. Purchase in another's Name — Advancement — Parol Evidence . . • • . . ■ . . • . . 57 VIII. Joint Tenancy 59 Constructive Trusts. Notion . . . . . . . . . . . . . . 60 I. Creditors following Assets . . . . . . . . 60 II. Notice 61 III. Contracts of Sale .. .. 62 IV. Wrongful Alienation of Trust Property . . . . 64 V. Renewable Leaseholds and Copyholds . . . . 65 VI. Repairs and Improvements .. .. .. ..65 VII. Cohabitation 66 Charitable Trusts.' History . . . . . . . . . . . . . . 66 Grammar Schools ■ ■ ■ . . . . . _ . . . 68 43Eliz. C.4 68 Cypres . . . . . . . . . . . . . . . . 70 9 Geo. II. c. 36 .. .. _ 70 Secret Trusts 72 Recent Statutes .. .. .'. .. .. ..73 Accident. Notion . . . . . . . . . . . . • . . 75 Contract, unconditional . . . . . . . . . . 75 Subsequent Act of Parliament . . . . . . . . 76 Covenants to Insure . . . . . , . . . . . . 76 Apportionment on Death . . . . . . . . 79 and 80 Lost Instruments . . . . . . . . , . . . 79 Mistake. Notion .. .. .. ..81 Mistake of Law, of Fact . . . . . . . . ..81 GENERAL PART. VU PACE Mistake — continued. Compromises and Releases . . . . . . . . . . 88 Restitutio in Integrum . . . . . . . . . . 81 Family Settlements , . 85 Parol Evidence 86 Rectification of Instruments . . . . . . . . . . 87 SPECIAL PART. CONNUBIUM, OR THE JURISPRUDENCE PER- TAINING TO MARRIED WOMEN. How far Equity follows the Rules of the Common Law . . 89 Dower and Jointure . . . . . . ' . . . , 90 Separate Estate and Equitable Powers . . . . 93 Equity to a Settlement 97 COMMERCIUM, OR THE JURISPRUDENCE PERTAIN- ING TO CONTRACTS AND ADMINISTRATION. History 102 General Principles .. .. .. .. .. ..108 Contracts AND THEIR Specific Performance .. .. 109 Contract for the Sale of Land .. .. .. .,112 Speci6c Performance of a Contract for the Sale of Land on the ground of Part Performance .. .. ..117 Accounts .. .. •• •• •• .• .. .. 121 Partnership •• •> 123 yiU SPECIAL PART. PAGE Mortgages. jSpecieg of Securities for Loans . . . . ■ • • • 127 Suretyship .. ■• •■ ..127 pledge or Pawn ,. .. •■ •• •• •• 128 Equitable Mortgage ., . i. , 129 Legal Mortgage • • < • . . • . ■ • • • 130 Form 130 Conditional Sale . . .. .. ■■ ■• ..131 Equity of Redemption as a Remedy .. .. ..132 Foreclosure .. .. ■• .. .. .. 133 Sale 134 Equity of Redemption, how affected by the Common Law Rules touching Property . . . . . . 136 Sub-Mortgages 137 Mortgage of Wife's Property .. .. .. ..138 Payment of Principal or Interest by Tenant for Life or Reversioner .. .. .. .. .. 139 Powers to raise Money .. .. 140 Statutory Powers to sell, give Receipts, Insure and appoint Receivers .. .. .. .. ..140 Lien , 147 Judgments . . . . . . . . . . . . . . 149 Administration of the Estate of a Deceased Person. I. The Property. Liability of Real Property for Debts .. .. ..155 Order of applying Property to pay Debts . . . . 156 17& 18 Vict, u. 113^ 30&3i Vict. c. 69 .. ..157 Specific and Demonstrative Legacies .. .< 158 Legal and Equitable Assets .. .. .. .. 159 Order of Payment of Debts 159 II. Executors and Administrators. (1.) Their Title .. , .. .. 160 15 & 16 Vict. c. 86, s. 42, r. 9 160 Court of Probate Act, s. 62 160 (2.) Their Duties 162 Administration Decrees .. .. .. ..163 SPECIAL PART. IX CIVITAS, OR THE JURISPRUDENCE PER- TAINING TO INFANTS AND LUNATICS. Infants. page Court of Wards 161 Chancery Jurisdiction . . . . . . . . . . 1 64 Leases and Sales ., .. .. .. .. .. 165 Conversion of Property by Guardian .. .. ..166 Conveyance of a Stranger's Property in Infant's Name . . 166 Maintenance, 23 & 24 Vict. c. 145, s. 26 167 Marriage .. .. *.. .. .. .. ., 169 Guardian of the Person 170 Accounts .. .. .. .. .. .. ..172 Lunatics. Jurisdiction . . . . . . . . . . . . . . 172 Beverley's Case .. .. .. .. .. .. 173 17 Edw. II., Stat. I. cc. 9 & IQ 173 Commissions de Lunatico inquirendo .. .. .. 173 Asylums 173 FRAUD. Fraud. Duress.. .. .. .. .. .. .. .. 175 Lord Coke and Sir William Blackstone . . . . . , 175 Jurisdiction of Court of Probate .. .. .. ..177 Jurisdiction of Common Law Courts .. .. ..177 Its Nature and Effect, I. In Cases of Contracts and Instruments generally .. 179 The Execution of Powers " ..183 II. In Cases of Particular Contracts. Insurance .. .. ■■ .. .. ..186 Sale by Auction 187 Dealings with Reversionary Interests .. .. 188 Principal and Surety . . .. .. .. .. 191 Mortgagor and Mortgagee .. .. .. ..192 Marital Rights 194 III. In Cases of Particular Relationships. Religious Adviser .. •• .. .. ..195 Guardian and Ward .. .. .. .. .. 198 IV. In Cases evading the Policy of the Law. Illegal Contracts 2('0 Composition Deeds . . . . . . . . . . 200- Decree obtained by Fraud .. .. .. .. 201 TABLE OF CASES CITED. Ackroyd v. Smithson . . Adlington v. Canns Adsells e. Hives Att.-G. V. Brackenbury V. Corporation of Nor- wich ». Lady Downing V. Marchant . . V. Sands I). St. John's Hospital Sherborne Grammar PAGE . 56 . 72 . 27 . 5i School - V. Ward Aldborough v. Tyre . ; Allen V. Macpherson . . Anguez v. Anguez Arbuckle, In re Armstrong ». Armstrong Austin ». Tawney V. Austin Avrey V. Hall . . Baker !). Bradley .. ..199 Barrett ». Hartley .. ..43 Barrow v. Barrow . . ..99 Barwick v. English Joint Stock Company 180 Bateman v. Boynton 249 Baylis v. Watkjn . . . . 264 Beavan ». Lord" Oxford .. 138 Beevon ». Luck .. ..137 Beverley's case .. ,. 173 Blackett v. Bates .. ..Ill Black ». Ottoman Bank .. 192 Blagrave v. Routh .. ..122 Blair ». Bromley .. .. 178 Blundell's Trusts . . . . 68 Boson B. Statham .. .,72 Bostock 1). Floyer . . . . 49 Bradford v. Romney . . . . 87 Brancker ». Came . . . . 242 252 54 70 23 70 70 71 189 185 251 168 110 62 171 34 Bremner's case Bridges v. Longman Bright V. Legerton Bristow o. Whitmore Brooke v. Mostyn Brown v. Mayor &c., of London Brumfit V. Morton Buckinghamshire, Earl of, Drury . . Burdon v, Barkus Burgess v. Wheate Burnett, In re . . Calverley v. Williams . . . . 82 Cann v. Cann . .' ' . . . . 83 Carter ». Boehm . . . . 187 Catley v. Sampson . . . . 156 Caton D. Caton . . .. 119, 120 Chadwick v. Turner . . . . 62 Chambers I). Crabbe .. 194,199 Chesterfield v. Janssen . , 190 Christ Church, In re . . . . 69 Churchill v. Dibben . . . . 94 Clarke v. Hilton , . . . 55 V. Royal Panopticon . . 140 Clayton v. Renton . . . . 283 Clowes V. Higginson . . . . 82 Coggs B. Barnard . . . . J28 Collier B. M'Bean .. ..115 Collingwood v. Russell , . 41 Cook V. Crawford . . . . 45 Cooke s. Lamotte .. ..195 Cooper ». Cresswell .. ..156 I). Phibbs . . . . 82 Coppard o. Allen . . . . 48 Cornfoot ». Fowke . . . . 130 Corsellis ». Patman .. ..136 Cotelung ». Basset . . . . 26 Cowen's case . . . . . , 200 Craven B. Stubbins .. .. 172 Cresswell ». Dewell . . . . 49 PAGE , 149 . 140 , 49 . 148 83, 202 76 61 91 125 72 219 TABLE OF CASES CITED. XI Curtis V. Curtis ». Piatt., PAGE . 93 . 259 Daniel v. Arkwright . . . . 87 Dann ». Spurrier . . . . 26 Daugars v. Rivaz . . . . 70 Davies v. Davies . . . . 199 Dendy v. Gary 87 ' Dimes v. The Proprietors of the Grand Junction Canal .. 17 Doe V. Hawthorn . . . . 73 V. Howells .. .. 73 Donald V. Suckling .. ..128 Donaldson v. Gillott .. ..186 Downes V. Jennings .. ..194 Durell V. Pritchard . . . . 259 Durham v. Crackles . . . . 98 Dyer v. Dyer 57 Dyke V. Kendall .. .. 91 Eaton i>. Watts 51 Edwards II. Burt .. .. 188 Eland V. Baker 185 Ellice B. Roupell .. 229,235 Elliot ». Merryman .. ..141 Ellison V. Ellison . . . . 34 Essell « Hayward .. ..126 Eyre t). Shaftesbury .. .. 170 Farrant v. Blanchford . . . . 49 Ferguson ». Wilson . . 242, 260 Fettiplace v. George . . . . 97 Fisher v. Brierley . . . . 73 Fleming v. Buchanan . . . . 159 Fletcher u.Ashburner .. .. 56 In the goods of . . 3.5 Foley V. Hill 23 Ford J). Olden 193 Frith V. Cartland . . . . 50 Fuller II. Taylor . . . . 247 Galloway v. The Mayor of Lon- don 246 Gardner v. London, Chatham and Dover Railway Co. . . 155 Garrard V. Lauderdale.. .. 48 Gilbert i>. Lewis . . 224, 233 Graham v. Wickham . . . . 52 PAGE Gray «. Whalley .. ..252 Greatham v. Cotton . . . . 42 Green ». Baverstock .. ..187 V. Rutherford . . . . 70 Hanslip v. Kitton . . . . 84 Hatch V. Hatch . . . . 198 Haynes v. Cooper . . . . 149 Heathcote ». North Stafford- shire Railway Company . . 252 Hereford v. Ravenhill . . . . 56 Hickesv. Cooke .. ..193 Hilli). Hill 171 ». Turner 170 Hindley v. Emery . . . . 260 Hoare v. Wilson . . . . 237 Hodgkinson ti. Quin . . . . 40 Holdich V. Holdich . . . . 92 Homfray t). Fothergill.. .. 110 Hopper V. Cdnyers . . . . 50 Hume V. Pocock .. .. 115 V. Richardson . . . . 45 Hunter V. Atkyns .. .. 195 Hunt ». Hunt 251 Hythe v. East 2. Cheetham Leigh V. Birch . . Le Neve ». Le Neve 239 66 186 96 248 79 72 33 6» 133 34 153 186 190 176 122 260 78 236' 62 xu TABLE OF CASES CITED. PAGE Lewers v. Shaftesbury, Earl of 111, 260 Lockhart ». Hardy . . ..134 London and North Western Railw. Co. «. Lancashire and Yorkshire Railw. Co. 249 Lucas V. Jones . . • • . . 73 MacDonald v. Walker. Madrid Bank . . Manby v. Bewicke Martin v. Martin Mertens v. Haigh Metcalfe's Will ' Miles V. Fresland Millard v. Harvey Minton v. Kirwood . Mirehouse v. Scaife . Mixer's case Moens v. Heyworth Moggridge v. Thackwell Molyneaux's case Morgan v. Higgins Mortimer v. Bell Moss, In re .. • V. Barton Murray v. Elibank .. 45 .. 25 .. 227 .. 168 .. 239 .. 197 .. 151 .. 118 .. 115 .. 157 .. 181 ., 180 .. 66 .. no .. 122 .. 187 .. 148 .. Ill .. 99 84 Natal, Bishop of, v. Gladstone Newall V. The Telegraph Con struction Company . . 239 Newberry, In re .. .. 171 New Brunswick and Canada Railway and Land Co. ». Conybeare.. .. .. 181 NichoU V. Jowell Noble ti. Bank of England NortclifFe v. Warburton Nottidge V. Prince Nottley V. Palmer Nunn D. Fabian O'Brien v. Lewis .. O'Hara u. Chain Overend, Gurney & Co. (Qakes and Peek, Cases of ) Owen V. Homan Oxford, Earl of 175 Paine it. Hutchinson . . ..110 116 80 149 195 168 118 149 93 182 190 PAGE 179 , 93 , 151 124 Paisley v. Freeman Parker v. Sowerby Partridge o. Foster Payn v. Hornby Peto V. Brighton, Uckfield and Tonbridge Railw. Co. Porter's case . . . . . . 67 Postlethwaite v. Lewthwaite . . 65 Price I). Ley . . . . . . 82 V. Salusbury Pye, Ex parte . . Ramsden v. Dyson Ransome v. Burgess Reid II. Reid . . Robinson v. Lowater Aobson V. Flight Rolfe V. Perry . . Rose V. Watson Rowlands v. Evans Rowley v, Rowley Russel V. Russel Russell's Estate Russian Vyksounsky Works Company ■ Sabine v. Heape Salter v. Adey . . Scholefield v. Lockwood Shattock V, Shattock . Shirley v. Fagg.. . Sichel t>. Mosenthal Simpson, In re . . V. HoUiday . Smith V. Barnes Solomon v. Solomon . Spencer (Earl) v. Peek V. Jack Stainton v. The Carron Iron Co. Stamford, Spalding and Boston Banking Company v. Ball Stapleton V. Stapleton . . Steele v. North Metropolitan Railway Company Stephens ». The South Devon Railway Company Stewart v. The Great Western Railway Company .. 251 Strathmore D. Bowes .. .. 194 Stuart V. Moore .. 1, 171, 205 111 118 39 .. 119 167, 168 .. 30 .. 40 55, 65 .. 157 .. 63 .. 126 .. 251 .. 129 .. 166 Iron .. 113 .. 40 .. 126 .. 138 95, 96 .. 245 .. 124 ,. 219 .. 261 .. 48 .. 157 .. 229 .. 264 83 133 85 252 252 TABLE OF CASES CITED. xm PAGE Sutton V. Rees . . .. .. 139 Swabey v. Sutton .. .. 236 Swaine v. Great Northern Rail- way Company . . . . 264 Sweeting ti. Sweeting .. ..72 Tapply V. Sheather Tarsey's Trusts Taylor v. Mead Thomas v. Cross V. Hobler .. 131 94 93,95 .. 149 225, 224 Tidd V. Lister . . Topham (Lady) v. Portland (Duke of ) .. .. 184 Troughton B. Binkes .. ..138 Troutbeck v. Boughey . . 96 TuUoch ». Tulloch .. ..135 Tyrrel's case . . . . . . 28 Venezuela, Central Railway Co. of, i>. Kisch .. ..180 Vernon's case .. .. ..91 Wade V. Baker Wakley i). Froggart 165 251 Walls ». JefFyres Walter v. Turner Warburton v. Warburton Warde, In re . . Waters o. Shaftesbury, Earl of Webb's Policy .. Webb V. Roche Webster v. Cook t). Le Hunt . . Western Bank of Scotland v. Addie 181 Wickham «. Marquis of Bath 71, 73 Widmore v. Woodroffe . . 69 Wilcocks V. Wilcocks . . . . 52 Wild V. Banning . . . . 52 Wilkinson v. Gibson . . • . 100 Williams v. Bayley .. ..175 ». Williams.. 86, 245, 251 Willoughby ». Brideoake .. 26, 189 Wilson V. Hart 62 1). West Hartlepool Rail- way and Harbour Company 111 Winscom, In re .. ..171 PAGE . 151 . 153 . 93 . 44 183 . 218 . 193 . 191 . 148 Young V. Fernie .. 267 *«• The current Law Reports of Cases decided by the Courts are cited without the letters L. R. The citation of prior reports is distinguished. TABLE OF STATUTES CITED. PAGE Magna Charta . . . . . . . . . . . '. . . 67 Statute of Northampton . • . . • ■ > • • • • • 6 Statute of Elegit, 13 Edw. 1, 0. 18 .. .. .. 149,150 De Mercatoribus, 13 Edw. 1 . . . . 106 ISEdw. 1, 0. 24 8 De Prarogativa Regis, 17 Edw. 2, St. 1, CO. 9, 10 .. 30,173 Statute of the Staple, 27 Edw. 3,0.9 106 17 Richard 2 8 Statuteof Uses, 27 Hen. 8, t. 10 11,28 88Hen. 8, 0. 20 29 84 & 3S Hen. 8, c. 4 12 lEdw. 6, c. 14 .. 67 13 ElSl. c. 5, and 27 Eliz. c. 4 200 43 EliU. d. 4 68 C.12 12 21Jamesl>c. 3 .. ..104 12 Charles 2, c. 24 170 29 Charles 2, c. 3, Statute of Frauds 33, 1 1 8 5 William & Mary, c. 20 .. 105 12 & 13 William & Mary, u. 20 1 3 & 4 Anne, c. S ! 7 Anne, t. 25 104 4&SAnne, C.16 .14 I2Geo. l,cc. 32, 38 15,208 3Geo. 2,0.3 16 9Geo.2,c. 36 70 30 Geo. 3, c. 62, 5. 32 210 52 Geo. 3, u. 101 fS 53 Geo. 3, i;. 24 . , 18 1 Will. 4,0. 65, ss. 12, 16, 17 2U 3 & 4 Will. 4, c. 27 27 .;. 105 91 4 & 5 Will. 4, 0. 22 79 7 Will. 4 8e 1 Vict. c. 26, s. 25 56 2&3Viet. 0. 54 170 5 Vict. c. 5 17 8& 9 Vict. c. 106 .. 31 c. 112 3-i 10 & 11 Vict. c. 92, and 12 & 13 Vict. 0. 74 .. .. 210,217 12 8j 13 Vict. u. 109 9 IS & 14 Vict. ^. 35 247 ss. 19—25 .. 256 IS & 14 Vict. c. 60, and IS & 16 Vict. u. 55 .. .. 45,210 14 & 15 Vict. c. 87 17,107 c-^Oi 65 TABLE OF STATUTES CITED. XV PAGE 15 & 16 Vict. t. 80 17,209,211 vi. J6, s. 6 248 s. 15 215 H. 26 240 ss. 28—41 . . . . 242 = 42 169 ss. 45, 47 243 ss. 48, iiS .. .. ' 134 s. 56 135 s. 62 266 16 & 17 Vict. c. 137 73 17 & 18 Vict. c. 104 ..' 110,111 t. 125 18,250 18 & 19 Vict. c. Ill 105 c. 124 74 c. 147 170 19 & 20 Vict. c. 97 105 20 & 21 Vict. c. 57 98 c. 77, s. 62 160 u. 85, ss. 21—25 97 u. cxlvii .. .. .. .. .. ..76 21 & 22 Vict. c. 27 18,259 22 & 23 Vict. c. 35, ss. 4—7 76 ss. 14—18 38 ss. 26, 31 46 ss. 27—29 256 s. 32 43 23 & 21 Vict. u. 136 74 u. 145, ss. 11 — 24 140 ss. 27, 28 36 s. 29 40 ss. 31—34 146 24 & 25 Vict. L-. 9 72 c. 1.34 107 25 & 26 Vict. c. 42 18,265 c. 89 105 26 & 27 Vict. c. 106 .. .. .. .. .. .. 72 27 & 28 Vict. c. 13 72 c. 112 153 28 & 29 Vict. c. 99 19 30 & 31 Vict. c. 64 17 c. 132 44 u. 142 282 ERRATA The reader is requested to make the following corrections :— ^ Page 2, line 15, for "Jias" substitute " have." „ 18, „ 8, for " 12*," substitute " 125." „ 18, ,, 29, erase " now." ,,175, „ 12, before " fraLud," insert " moral." „ 192, „ 27, B 2 INTRODUCTION. tical importance, the Great Seal changes hands whenever one cahinet council goes out of office and a new one is appointed. This instrument, called by some the clavis regni, authenticates the most solemn acts of the State ; and the use which has been made of it has caused the impeachment in the House of Lords, by the Commons of England, of more than one minister of the Crown. It is not, however, within our purpose to discuss questions of political history; though, in tracing the history of the Chancery and its equity jurisdiction, we may be permitted in- cidentaUy to aUude to them, and to show how the duties of a simple secretary or door-keeper has developed into those of the highest law officer in the kingdom — the visitor of charities of royal foundation as keeper of the regal conscience, speaker of the House of Lords, appointer of aU magistrates and judges, and himself presiding judge in equity. Two etymologies of the word Chancellor or Cancellarius have been offered, between which Lord Campbell has declined deciding. The first is that of Sir Edward Coke, who derives the word from the verb canceUo, and makes the chancellor an officer to cancel invalid grants of the king, by drawing cancelli or lattice-like lines upon them. But an officer to draw the royal grants must exist before they could be cancelled, and the cancelling would be the exceptional duty of such an officer ; and, again, the analogy of Latin etymology requires the word cancellator, not cancellarius. The second INTEODUCTION. 3 derives the word from cancelli, as signifying the open bars of a gate, and makes the cancellarius to be the officer or usher of such gate or chancel (b). Thus much is clear that, before Justinian had codified the Roman Law, there was attached to the then courts of justice an officer called canceUa- rius, who acted as a registrar or an actuary, and made and kept the acts of the court. Since then we find the tmiversities of learning presided over by chancellors and bishops, assisted in the adminis- tration of their .dioceses by similar officers, and hence the books sometimes speak of the lord chan- cellor as the king's chancellor. After the conversion of the Saxons to Chris- tianity, a particular priest had charge of the king's chapel, was his confessor or keeper of his con- science, and also had custody of the great seal, (S) From a passage in the works of Ammianiis Marcellinus, f . 330, de advocatis, " Cnmqne intra cancellomm septa et agi coepe- riint alicnjus fortunse," we may conclude that a portion of the tribunals was partitioned off with canceUi. In the time of Theo- dosins the cancellarius had become a law officer of some import- ance. Thus we read in the Codex Theodosianus, I. xii., " Nnllns jadicum ad proyinciam sibi commissam secnm ducere audeat cni domestici, vel cancellarii nomen imponat nee profectum ad se un- decunque suscipiat, ne famae nota cum bonomm pnblicatione plec- tatnr. Periculo enim primatum officii cancellarios sub fide ges- tomm electos judicibus appUcari jnbemus, ita nt post depositam administrationem per continuum triennimn nee militam deserant et ProTincialibus prsesentiam sni exhibeant, quo Tolentibus sit accn- sandi eos facultas." From this passage we may infer that the cancellarius was the actuary or registrar, the person who com- mitted to writing and kept the acta of the court. He may also have been the grapharius, or the person to reduce to form the plead- ings of the litigants. Constantine, Novella x., et Leges Longobar- dorum, ii. 40. It is easy to see how the cancellarius, the court- keeper of an autocratic emperor, " penes quem legnm dictandarum et rescriptorum ad preces Bupplicum jus erat," would be a high officer of state. — 1 Gibbon, 353; Codex Theodosianus, X. i. vilL Comment. MarvU. b2 4 INTRODUCTION. and issued writs and grants. His influence in the Wittenagemote, which was the highest court of justice, as well as the general council of the realm, would be great (c). The Norman Conquest swept the country. The military system of feudalism, with all its burdens on land and owner, many of whose rules stiU per- plex the student of real property and endanger the inheritances of families, was superinduced over the then common law of England. Pope Alexander had assisted the enterprise of the conqueror, and the Norman bishops were allowed to withdraw from the county courts, and to establish their own ecclesiastical courts, which at one time seemed likely to originate a system of equity. Stated meetings of a free representative council, like the Wittenagemote, were dangerous to the tyrant. He instituted in its place a court which constantly attended him, called the aula regis or aula regia. It was composed of the great officers of state, pre^ sided over by the chief justiciary, and assisted, as occasion required, by the other justices and the greater barons. It was the privy council of a monarch, not a parliament of the people. In France, Hugh Capet, the great feudatory, had dispossessed the reigning family of Charlemagne. With such an example before him, William avoided {d) the attaching the jura regalia of coin- ing money, of waging private war, of exemption (c) 1 Campbell's Lives of the Chancellors, (rf) Compare a similar policv of Artaxerxes the Persian, A D 226.— 1 Gibbon, 215. INTRODUCTION. - 5 from public tribute (except the feudal aids), of freedom from legislative control, and of the ex- clusive exercise of original judicature, to the pos- sessions of his earls or comites. The judicial power in the county was not attached to the hereditary- dignity, but was to be exercised by an oflScer chosen yearly, called the vicecomes, the sheriflF, or shire reeve, of the -present day. It is true that iu .the manor courts the lord's men did suit and sought justice, but the jurisdiction of these courts was limited, and the lord himself might be com- pelled by the sheriff to do justice in the county court; while the aula regis issued its writs to every part of the country, and exercised a general control, as well as administered justice to special applicants. As these applications became nimie- rous, the custom arose of sending letters missive to the sheriff or other officer, directing him to take cognizance of the particular matter. This was the origin of commissions. It was with the right and proper ordering of such cases, and with the issue of the writs and commissions, that the cancel- larius was concerned ; and accordingly we find our most ancient law writers, Bracton, Glanville, and Fleta, speaking of the Chancery as the officina justitise, not as a court. Indeed, if equity was administered, it was by the aula regis itself, which, possessing legislative fxmctions, was above the forms and letter of the law, and, representing the military force of the kingdom, occasionally excited respect even in the minds of the turbulent feudal lords. In the unsettled.reign of Stephen the nobles in- 6 INTRODUCTION. creased the ntunber of their retainers, and fortified their strongholds and castles. The sheriff was unable or unwilling to enforce the law. The par- liament of Northampton (a.i>. 1176) attempted a remedy by appointing justices in eyre or itinere, to make circuits of the land once in seven years. This was the origin of the present system of cir- cuits by the queen's justices and barons, who de- clare the law which the sheriff still executes. The bishops taking advantage from the time, partly in the interest of justice, partly actuated by the love of power, introduced into the ecclesiastical courts an action pro laesione fidei. The universal and equitable character of such an action might have drawn to their courts all the civil business of the kingdom. In the reign of Henry II. ecclesiastical encroach- ments were stopped by the Constitutions of Claren- don. These Constitutions, writes Hume (e), were calculated to prevent the chief abuses which had prevailed in ecclesiastical affairs, and to put an effectual stop to the usurpations of the Church, which, gradually stealing on, had threatened the total destruction of the civil power. Henry, there- fore, by reducing those ancient customs of the realm to writing, and by collecting them in a body, endeavoured to prevent all future dispute with regard to them ; and by passing so many ec- clesiastical ordinances in a national and civil assembly, he fully established the superiority of the legislature above all papal decrees or spiritual (e) 1 History, 394. INTRODUCTION. 7 canons, and gained a signal victory over the eccle- siastics. In lliis reign, a committee selected from the aula regis, assisting or assisted by the Lord High Treasurer, had cognizance of disputes touching the revenue. A special cancellarius was appointed to issue writs for the department. To this appoint- ment is attributed by some the origin of the equity jurisdiction which the Common Law Court of Exchequer till recently possessed. Perhaps the more correct view of the origin is that, in consider- ing the items of a bill of accounts, common law rules of pleading cannot be used. Li setting off credits and other claims, in weighing the amounts, in balancing totals, principles of equity or equality of benefit and burden must be adopted. Another committee had cognizance of the common pleas or ordinary actions, in which any member of the conmiunity might be plaintiff or defendant. The High Constable and Earl Marshal had cognizance of questions of martial or military law, that is, the law governing soldiers as such, and military matters as distinct from civil (/). The criminal jurisdiction devolved upon the King's or Queen's Bench. To John's reign some ascribe the estab- lishment of the common law, because Magna Charta enacted that the Court of Common Pleas should no longer follow the king's person, but be always held at Westminster. The reign of Henry III. is memorable for the Parliamentary {/) Charge of Cockbnrn, L. C. J., to the grand jnir.— Qneen V. Nelson, Qneen v. Brand, April 11, 1867. 8 INTRODUCTION. representation conferred on the commons. As the aula regis had administered equity, so occa- sionally did Parliament, and, when the Parliament was not sitting, the krag's ordinary council. Edward I. abstained from appointing a chief justiciary, who in previous reigns had possessed Tice-regal power. This increased the importance and power of the Chancellor. On the other hand, the statute 13 Edw. I. c. 24 {g'), which enacted that the clerks in Chancery should provide writs for a new and general form of action known as an action on the case to be tried in the ordinary courts, must have restricted his jurisdiction. The reigns of Edward III. and his three suc- cessors exhibit many instances in which the House of Commons sought to exercise judicial powers. This perhaps necessitated, or showed the necessity of, the development of the Chancery jurisdiction, which in the seventeenth year of Eichard II, was so regular in its exercise that an Act was passed enabling the Chancellor to award damages when a writ had been obtained by an untrue suggestion. This reign being an important epoch in the history of the Chancery, it may be useful to stun up the results already attained. In the times of Cicero, qancelli signified a bar or barrier. Under the Koman Emperors the cancellarius was a door- (g) " As often as it shall happen in the Chancery that in one case a wnt is found, and in a like case falling under the same right and requiring like remedy, no writ is to he found, the clerks of the Chancery shall agree in making a writ or adjourn the complaint to the next parliament, and write the cases in which they cannot agree and refer them to the next parliament." ' INTRODUCTION. 9 keeper ; not a portreeve, but the keeper of the bar or chancel of the imperial court. After the govern- ment had been removed to Constantinople, and while the civil law was being systematized, the name was applied to the actuary or registrar of courts of justice. In the Saxon times of our own history the king's chancellor was his confessor, and the actuary and reg^trar of the royal grants. This is the earliest origin of the ordinary legal as distin- guished from the equity jurisdiction of the Chan- cery, which, even at the present day, holds plea, upon a scire facias, to repeal and cancel the king's letters patent (h). In the Norman period the Chan- cery was the officina justitiae, out of which writs, in- cluding the ordinary ones for actions in the common courts, issued — out of which, in our own times, all original writs that pass the Great Seal, all commis- sions of charitable uses, sewers, idiocy, and the like, do issue, as w;ell as bills in Chancery, writs for elections to serve in Parliament, and writs for the election of bishops. The writs which the subject could claim ex debito justitiae were formerly kept in a hamper, the others in a small bag. The hamper, or hanaper, has vanished from the Chan- cery nomenclature. But the petit bag office stiU exists, and is regulated by the 12 & 13 Vict. c. 109. Lastly, we have seen the Chancellor, in the turbu- lent times succeeding the Conquest, exercising an exceptional jurisdiction, called into existence by the violence of the barons and the impotence of the (/t) 12 & 13 Vict, c, 19. b5 10 INTEODUCTION, sheriffs, as much as by the defects and rigorous forms of the common law. This is the origin of that equity jurisdiction which embraces questions of private oppression, fraud, trust and accident, the whole law of family settlements and compKcated questions of account. The law touching the civitas and its forfeiture is still preserved to the criminal jurisdiction of the common law courts. How it was they lost so large a portion over the connubiiun and commercium we now continue to investigate. The rigorous rules and heavy burdens of the feudal system had caused the invention of uses of the land. One person held the legal ownership, or right of property, on a promise or trust to allow another, or a monastery, to have the rents and profits or enjoy the use. The obligation of this trust was ignored by the common lawj but considered by the Chaticery binding in conscience. JohndeWaltham, Master of the Rolls, and several times entrusted with the Great Seal as deputy to the Chancellor, improved or invented the famous writ of subpoena, by which a dishonest trustee might be compelled to appear, to give up his accounts^ if necessary to convey the legal estate, and specifically to perform any contract. The Chancery gained another advantage over the Common Law Courts, from its obliging the defendant to confess on oath aU he knew of the matter. This was the origin of an extensive, and, tin the recent Acts relating to evidence, an im- portant branch of the auxiliary jurisdiction of the Chancery, under which a plaintiff or defendant INTEODUCTION. 1 1 in an action might come into equity and obtain a discovery from his adversary which would be vainly sought elsewhere. Now that obligations in conscience, whether un- recognized by the common law, or recognized but not enforced, received the sanction of the Chancery, one might imagine that the golden age of ethics had come ; that the casuistry of the sdioolmen would reform the State, and render domestic life more sweet. Not so ! Though equity supple- mented the law in questions of trust and fraud, it confined and confines its remedies to cases where property is in question, and to agreements founded on a valuable consideration. An intended marriage, however, no less than money, is, if solemnized, valu- able to support an agreement for settlement of pro- perty on the parties married and their issue. The wars of the houses of York and Lancaster diminished the power of Parliament, and stopped its interference with questions of private justice. A statute of Henry VIII. abolished uses of land, but the Common Law Courts, interpreting the statute according to the letter, the Chancery re- gained its jurisdiction under the new name of trusts. Title deeds would be frequently enrolled in the Chancery offices, and a new source of busi- ness had its origin in enforcing the recognizances which parties entered into for performance of con- tracts connected therewith. The mercantile classes had been increasing in wealth and numbers, but the common courts were incompetent to deal with many commercial ques- 12 INTRODUCTION. tions. The simple rules of such courts were not adapted to comprehend a multiplicity of parties or a complication of rights. Their distributive justice took cognizance of questions between man and man ; but the accounts of partners, and the issues of bankruptcy, called for fresh remedies. 34 & 35 Hen. VIII. c. 4, subjected persons "who do make bankrupt" to a commission issuing out of Chancery. 43 Eliz. c. 12 originated a jurisdiction touching marine policies of assurance by merchant adven- turers ; but the Act being badly drawn this branch of the law merchant remained with the common courts. In the reign of James I. a dispute between that great master of the law. Sir Edward Coke, Lord Chief Justice of the Queen's Bench, and Lord Chancellor EUesmere, manifests and illustrates the growth of the controlling jurisdiction exercised over litigants in other courts. An action was tried before Sir E. Coke, in which one of the plaintiff's witnesses, it was said, was kept away by the other side ; and the verdict was con- sequently given for the defendant. The plaintiff filed a biU in Chancery to compel the defendant to make a discovery, which the latter, refusing to do, was committed for contempt. 4 Hen, IV. c. 22 had enacted that judgments at law should be irrevocable unless by attaint or writ of error. Indictments for a prffimxmire were accordingly preferred against the suitor, solicitor, counsel, and a master in Chan- cery. King James directed Bacon and others to search for precedents. They reported that since INTEODUCTION. 13 the time of Henry VIII. the Chancery had inter- fered in a series of cases not only after a judg- ment at law, but after execution. The Attorney- General was directed to prosecute ia the Star Chamber those who had preferred the indictments, and an entry was made in the council-book that the king was judge over all judges, and that his Chan- cellor had not exceeded his jurisdiction. The genius of Lord Bacon, though it did not preserve him from the prevalent corruption of the times and consequent punishment, displayed itself in a series of orders for the regulation of business, some of which survive at the present time. The troubles of Charles I.'s reign must have checked the prosperity of the country, and the regular development of equity; but the abolition of the Star Chamber and the Court of Requests increased in all probability the jurisdiction of the Chancery. Amid the ruins of ancient institutions the Chancery survived during the Commonwealth ; and the annihilation of the feudal system and the Court of Wards rendered the Chancellor's juris- diction over the guardians of children of greater importance. The restoration of Charles II. placed the great seal in the hands of the celebrated historian. Lord Clarendon. He was succeeded by Sir Orlando Bridgman, who, during the previous troubles, had, by an ingenious mode of settling family estates with trusts for contingent remainders, preserved many of them from forfeiture. He was succeeded by that profligate statesman, the Earl of Shaftesbury. And 14 INTEODUCTION. then Sir Heneage Finch, afterwards Earl of Not- tingham, called by some the father of equity, held the great seal, and sat in the marble chair. He was the first to reduce equity to a science, by care- fully prepared and written judgments, and so to redeem it from the charge of fluctuating with the opinion of the judge. Floruit a.d. 1673, From this period the history of the Chancery of equity is to be gathered from the statute book of the realm; — the Legislature, on some occasions, en- grafting equity principles on the common law ; on other, controlling the officers of the Chancery, and regulating the orderly development of its jurisdic- tion. 4 & 5 Anne, c. 16, enacted that as in equity, so in the common law courts, a bond should not be forfeited, and the large penalty be recoverable on non-payment at the precise day; and, that. when forfeited, payment of principal, interest and costs should be a satisfaction. The close of the reign of Greorge I. was a trou- blous time for the Chancery. Certain of its officers called masters, together with the usher of the court (a new species of cancellarius), had charge of all money which formed a subject of litigation. As the officers kept for themselves all the interest, candidates for the office were willing to pay for it a high price. Parker, Earl of Macclesfield, the Lord Chancellor, took the price. One of the masters became insolvent. The money in his cus- tody was not forthcoming. An investigation fol- lowed. The conduct of the Lord Chancellor was INTEODUCTION. 15 evidently a breach of a statute of Edward VI. He was impeached by the commons at the bar of the lords, foimd guilty, and sentenced to a fine of30,000Z. An Act, 12 Geo. I. c. 33, was passed to relieve the suitors who had suffered ; and another Act, 12 Geo. I. c. 32, for better securing in future the money and effects. The latter Act took the Chan- cery banking business out of the hands of the masters and usher, and created a new officer, the accountant-general, under and by whom it is con- ducted. His duties are described in a subsequent chapter. Here we need only say that, so far as the safe custody of the money and effects, amount- ing in the year 1864 to 53,974,614/. 18s. lid. con- sols, is concerned, the system has worked well (i). This was not the only trouble. A dispute be- tween Lord Chancellor King and the Master of the Kolls, touching the jurisdiction of the latter judge and the validity of his decrees, soon followed. The registrars, it seems, supported the Chancellor, the masters the Master of the Rolls. The oppo- nents of the Master of the Kolls asserted that he was a mere delegate. His advocate, the illustrious Philip Yorke, then attorney-general, relied on a series of precedents to the contrary. The origin of the judicial power of the office is veiled. Pro- bably at first its occupant acted for the Chancellor (i) Of this stock 1,000,000?., accruing mostly from the surplus interest of investments, is to defray part of the cost of erecting the new Courts of Justice.— 28 Vict. c. 48. 16 INTRODUCTION. in equity, when called away by other important business. Waltham, to whom the Chancery is said to be indebted for the writ of subpoena, who, though subsequently Lord Treasurer, was never Lord Chancellor, but only Master of the EoUs, frequently acted for the Lord Chancellor, and there are many records of the reign of Henry VIII. in which the custos rotulorum is called vice cancellarius. A declaratory act was passed, 3 Geo. II. c, 3, which established the validity of his orders, as an independent though subordinate judge. Lord Hardwicke, whose logic was the neat hand- maid of his leamiag ; Lord Thurlow, whose rough common sense and wit were as potent as any logic ; Lord Eldon, the painstaking and laborious, and other illustrious men, have held and used the great seal, the clavis regni. They have written their lives in the history of the nation. But in Chancery they did but administer what others had initiated, developed, and consolidated. The results of their labours are to be found by the student of equity, not in ancient records, but in the judgments which they delivered, and which on some few but impor- tant legal topics we have ventured to sum up in the following chapters. The long period which elapsed between 3 Geo. II. and the accession of Queen Victoria presents but one Act of Parliament calling for notice. 53 Geo. III. c. 24, created a new judge, with the title of Vice- ChanceUor of England, the causes and other busi- INTRODUCTION. 17 ness in the equity courts being more than Lord Eldon and the Master of the Rolls could adjudicate uponO'). We have already mentioned the equity jurisdic- tion of the Court of Exchequer. In the chan- cellorship of Lord Cottenham it was determined to be expedient to transfer it to the Chancery. This was done by 5 Vict. c. 5. That Act, in con- junction with 15 & 16 Vict. c. 80, also created and rendered perpetual two more vice-chancellor- ships. The appellate jurisdiction next called for assistance. By 14 & 15 Vict. c. 83, two judges, with the title of lords justices, were appointed to form a court of appeal in equity, co-ordinate with that of the holder of the great seal. They might also sit with the holder of the great seal, and form a full court of appeal. Jurisdictions in bankruptcy and lunacy were also conferred on them. 30 & 31 Vict. c. 64, enables either of the lords justices sitting separately, or the Lord Chancellor sitting with either of them, to exercise all the jurisdiction, (j) An important case in constitutional Iscw has been decided by the Honse of Lords in construing this statute. The Grand Junc- tion Canal Company filed a bill in equity against the lord of a manor. The Vice-Chancellor granted the relief. The lord Chan- cellor affirmed the order. It appeared that the Lord Chancellor was a shareholder, partly in his own right, partly as trustee. The House of Lords held, (1) that the Lord Chancellor having such an interest as would formerly hare disqualified birn as a witness, he was disqualified as a judge, and that his order was voidable; (2) That the Vice-Chancellor was not a mere deputy, but that he had independent jurisdiction to make decrees subject to the power of the Chancellor to reverse, discharge, or alter them ; (3) That the signature of the Chancellor to the enrolment which was requisite for an appeal to the House of Lords was not affected by his interest, the case being one of necessity. Dimes v. The Proprietors of the Grand Junction Canal, 3 H. L. 759. 18 INTEODTTCTIOlir. powers, and authorities of the said court -of appeal, but excepts from the jurisdiction of a lord justice, sitting separately, the rehearing of a decree made on the hearing of a cause or on further considera- tion (A). The year 1854 is noteworthy in the history of equity jurisdiction. By 17 & 18 Vict. c. 124, the Legislature conferred on the Common Law Courts such powers as render it unnecessary for their suitors to resort to the equity courts for assistance. Discovery of the knowledge possessed by an op- ponent can now be there enforced. Matters of equitable defence and replication can be pleaded. The repetition of an actionable wrong is forbidden by a writ of injunction, and an efficacy given to a writ of mandamus, which seems to even encroach on the Chancery jurisdiction. 21 & 22 Vict. c. 27, passed at the instance of the now Lord Justice, Lord Cairns, introduced into the Chancery practice the trial of facts by jury, and empowered the judges, in cases falling within their existing jurisdiction, to award damages. In 1860 the general orders of the court, from the reign of Henry V., were consolidated under the auspices of the Lord Chancellors Chelmsford and Campbell. 25 & 26 Vict. c. 42, the Chancery Regulation Act of 1862, passed at the instance of the now Lord Justice, Sir John Eolt, renders the juris- diction more compact, directing that the judges (J) Cf. 30 & 31 Vict. c. 87, s. 13. INTEODUCTION. 19 in causes or matters shall decide every question of law, and, if they please, every question of fact, instead of sending it for decision by the common law judges. In 1865 the Legislature conferred on the county courts, not those presided over by the sheriffs, but those created under the auspices of Lord Brougham by the 9 & 10 Vict. c. 95, to administer justice amongst the poorer classes, a most important juris- diction in eight branches of equity jurisprudence. —28 & 29 Vict. c. 99. And now to the students of the. science and to the practitioners in the county courts and in the high court we commend our treatise, hoping, if not trusting, that it may prove a pleasant introduction and a usefid manual. ( 20 ) MAXIMS. HAViNa traced the history of the High Court of Chancery, and shown that the equity jurisprudence therein administered is a science which (1) recog- nizes on principles of conscience and enforces cer- tain rights not recognized by the common law ; (2) administers on like principles a better or more complete remedy where the common law courts acknowledge the right, but give no remedy or an incomplete one (a) ; we proceed to enumerate a few (a) Grotiua considers equity to be law administered not in strict- ness, but with humanity and mercy. Grotius de Jure Belli et Pacis,,lib. iii. c. 20, §47. " In arbitri officio spectandum, an electus sit in vicem judicis an cum laxiore quadam potestate, quam arbitri quasi propriam vult Seneca cum dicit : ' Melior videtur conditio caus£e bonse si ad judicem quam si ad arbitrum mittitur: quia ilium formula includit, et certos quos non excedat terminos ponit, hujus libera et nuUis adstricta vincnlis religio et detrahere aliquid potest et adjicere, et sententiam suam non prout lex aut justitia suadet, sed prout humani- tas et misericordia impulit regere.' Aristoteles quoque ' IwiEixotis, id est sequi et commodi h6minis esse ait, e!; iiairnv juSxxov n e!;' iimv ^ociXEirfltti Uvm maUe ire ad arbitrum quam in jus,' rationem adji- ciens, o yap itainnris to ETriEtXE; opa o il ZtKcurrnf tov vifjtoii Kai toutou EvExa hairnvhi svfeQn otruq to In'iEtxE? (0"X"P' Nam arbiter id quod sequum est respicit; judex legem imo arbiter ejus rei causa repertus est ut valeret aequites." Such a definition is proper when addressed to crowned heads and generals, waging wars for religions principles, but it does not cor- rectly describe our English system. Aristotle's definition 6f Imtniiq approaches nearer the idea woie" Se twv ttTToputv oTi TO l^rtstXEff ^ixtfiov j!AEv IffTiv, oti TO xaTA vojuoy 5e aXx' EVanp&iufjia, vofxifAov iiKaiw. . , . xat irriv ettrrt q ^vrti jj tou E<7riE(- Koui Evavopdwjua vofjLou ? eXXeittei Jia TO xttdoXotf. To ETrifiiKEf is a correction MAXIMS. 21 equitable principles or rules which obtain in the courts of equity. These will not exhibit a com- plete view of the science, but they may assist the memory of the student. I. Equality is equity, that is, equality of burden and benefit. E.g., where two purchasers or mort- gagees contribute unequal portions of the conside- ration money, one of them will not be allowed to take the whole estate if he survives his joint tenant, as he would do at common law (J). of legal justice. It supplements the law where it fails through its nuivers^tj. This is high philosophy, and if we had to appeal to a code instead of to precedents might, except in cases of fraud, cor- rectly describe the system. The common law student may note how the definition comprehends what is called the equity of a statute. But what is justice ? " Justitia est constans et perpetua voluntas, honeste virere, alte- mm non laedere, suum cuique tribuere." — Justinian's Institutes, I. i. " The word justice, in its most extensive signification, denotes that disposition which leads us in cases where our temper or pas- sions or interest are concerned, to determine and to act without being biassed by partial considerations. Its effects are candour and integrity." — ^Dngald Stewart. Justice, says another writer, may be divided into distributive, commutative and legal. Justice distributive is concerned in matters of government and beneficence, and is either remuneratory or pimitive; it observes an equality in dealing rewards and punishments according to each man's condition and merit, for as actions are either good or evil, for the good rewards must be assigned, and for the evil punish- ment; and herein a geometrical proportion is observed. Justice commutative is conversant in matters of commerce and in the equal commutation or charging of things, and proceeds ac- cording to arithmetical equality, without any regard to persons and circumstances. Justice legal is that which resides in the state or monarch, by whose power and authority the effects of commutative and distri- butive justice are frequently superseded or suspended; as in a dearth of com, if a person that has a stock by him will not sell it, it shall be taken from him. (J) The meaning of "equality" is well and scientifically ex- plained, Grotius de Jure Belli et Pacis, ii. c. xii. § xii. "Eeatat sequalitas in eo de quo agitur, in hoc consistens nt etiamsi 22 MAXIMS. II. Equity looks on that as done which is agreed to be done ; e.g., if a piece of land is sold, but the vendor or purchaser dies before the legal estate is conveyed, the personal representatives claim or pay the money, and the heirs convey or take the land as if everything had been completed during life time. III. Equity follows the law : this maxim obtains generally where no peculiar rule of equity inter- venes. This maxim may be illustrated (1) with reference to the rules of real property. In executed trusts the rules of the common law estate and of the use are allowed. In executory trusts, where the settlor contemplates a further instrument to carry out his estate, the rule in Shelley's case is not binding. The rules of title are observed. Thus a mortgage in equity being a merte security for repayment, the equity of redemption descends to the heir of the mortgagor ; but the rules of conveyancing are, in nee celatnm quicqnam quod dictum oportuit nee plus exactom quam deberi putabatur in re tamen deprehendatur inaequalitas quanquam sine culpa partium, puta quod vitium latebat aut de pretio erra- batnr ea quoque sit resarcienda et demendum ei qui plus habet red^ dendumque minus habenti, quia in contractu id utrimqne proposi- tum aut f uit aut esse debuit ut uterque tantundem haberent." Lib. ii. c. xii. § xi. — " In ipso actu principaM hsec desideratursequali- tas ne plus exigatur quam par est. Quod in coutractibus beneficis locum Tix potest habere. Nam si quis pro commodato aut opere in mandato aut deposito exhibenda aliquid mcrcedulae stipuletur non injuriam faciet sed contractum miscebit, id est exgratuito efficiet semipermutatorum. At in permutatoriis omnibus sollicite id ob- servandum est; nee est quod dicat quispiam id quod pars altera amplius promittit donatum censeri. Neque enim solet hie esse tales contractus ineuntium animus, nee praesumendus est nisi ap- pareat. Quod enim promittunt aut dant, credendi sunt promittere aut dare tanqnam aquale ei quod accepturi sunt utque jus sequali- tatis ratione debitum." MAXIMS. 23 many cases, relieved against : thus, if the formali- ties required in the execution of a power are neg- lected, a wife or child, a purchaser, creditor, or charity, have their remedy in equity. In two in- stances the rules of title have not been followed. Till the recent Dower Act, dower of an equitable estate did not exist. Formerly, and in the present day, there can be no escheat of a trust estate. A. made B., his son-in-law, trustee of an inheritance for the sons of B., A.'s grandchildren. There were three grandchildren, C, D., and E. D. died; E. killed his brother C, was attainted and executed. Sir Matthew Hale held that the trust of the in- heritance was not forfeitable at common law, because if it were the lord must be in by escheat, which could only be for want of a tenant ; and here the trustee was tenant, and was consequently entitled to the lands discharged of the trust (c). 2. The maxim may be illustrated by cases from the commercial law. In Foley ». Hill(. Lady Downing, Wilmot, 23. IMPLIED TRUSTS. 55 be defeated at law by the death of the person to whom it was given, the legal estate would remain in the heir at law for his own benefit ; but Equity, acting upon the trust, will compel the heir to join in the sale of the estate for the purposes designated by the testator. On the other hand, the discretion to be exercised in the execution of a power must be distinguished from the bare trust : e. g., a testator devised real estate to trustees, and gave them a power of grant- ing leases for the term of twenty-one years. The trustees disclaimed the trust, and the heir at law, who was tenant for life of a moiety, granted a lease: Lord Chancellor Westbury held that the lease was invalid (w). In King v. Denison, Lord Eldon pointed out the distinction between gifts by will upon trusts, and gifts by will subject to trusts (o). " If I give to A. and his he.irs aU my real estate charged with my debts, that is a devise to him for a particular pur- pose, but not for that purpose only. If the devise is upon trust to pay my debts, that is a devise for a particular purpose and nothing more, and the efiect of those two modes admits just this difierence : The former is the devise of an estate of inheritance for the purpose of giving the devisee the beneficial estate subject to a particular purpose ; the latter is a devise for a particular purpose, with no intention to give him any beneficial interest." (n) Eobson v. FHght, J. (65), 147. (o) 1 P. & B. 260; cited Clarke v. Hilton, by V.-C. S., 2 E. C. 810. 56 ■ TRUSTS. The analogy holds with respect to personal estate (jo). ■ VI. In analogy with the maxim, that what is agreed to be done shall be considered as done in respect of consequences, Sewell, M. E,, held that what was directed by a testator to be done should be considered as done, and that real estate ordered to be sold should be considered as personalty, and go accordingly ; but where the purpose of conversion fails, the court will consider the conversion as not ordered, and accordingly Thurlow, L. C, held, that as the heir cannot be disinherited, except by necessary implication, undisposed of personalty arising from realty reverted to him (g). In Cogan V. Stevens (r), where a gift of a sum of money was directed to be laid out in land for charitable pur- poses, and so was void as contravening the Mort- main Laws, the analogous rule was acted upon in favour of the next of kin. This case was recog- nised in Hereford v. Ravenhill (s). The failure of a devise or bequest in respect of the purposes of conversion is to be distinguished from a general failure of a devise or bequest, which is now governed by the Wills Act. Thus by 7 Will. IV. & 1 Vict. c. 26, s. 25, it is enacted, " That unless a contrary intention shall appear by the will such real estate or interest therein as shall be comprised, or intended to be comprised, in any {p) Clarke v. Hilton, supra. Iq) Aekroyd v. Smithson, 1 Br. C. C. 503; cf. Fletcher v. Aah- bumer, 1 Br. C. C. 497.' (r) Lewin, App. ni. («; 1 Beav. 481. IMPLIED TRUSTS. 57 devise in such will contained, whicli shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking eflFect, shall be included ia the residuary de- vise, if any, contained in such will." A residuary bequest of personalty possesses such a scope, independently of the Act, VII. Implied trusts may also arise where a pur- chase is made by one person in the name of another. Where the nominee is a stranger. Equity presumes that the man who pays the money intends to reap the benefit, and in accordance with such intention creates a trust in his favour ; where the nominee is a child or wife no such presumption exists, and ac- cordingly no trust is created. The analogy which Eyre, B., in Dyer v. Dyer ( t), draws between such a trust and the use which results to a person who enfeoiFs another without consideration scarcely seems to hold, for in one case the legal estate was in the cestui que use, while in the other it never was in the cestui que trust. The analogy only holds so far as it holds with all cases of trust, viz., to show that express and implied trusts, as well as uses, depend on intention of the parties. Such intention may be shown, either by parol or by written evidence, according to the nature of the transaction. Formerly, in all cases of trust, whe- ther express or implied, whether as to personalty or realty. Equity was satisfied with parol evidence of (t) 2 Cox, 92. d5 58 TRUSTS. the intention of the parties. The Statute of Frauds introduced a new regulation, and required that trusts concerning land should be evidenced by writing, except when such trusts arose by implica- tion or construction of law. Parol evidence is therefore still sufficient to prove • the circumstances from which Equity will create an implied or constructive trust in all cases where such a trust might have been created before the pass- ing of the Statute of Frauds. The doctrine which the Court of Chancery has invented in order to give to a child or wife an estate which is purchased in his or her name is called Advancement. The presumption in favour of the child, founded on natural affection and moral obligation, is balanced against the interest of the individual, and is looked upon merely as a cir- cumstance of evidence to rebut the presumption founded on such interest. Being a mere circum- stance of evidence, it was frittered away by other circumstances nicely refined, till in the case of Dyer v. Dyer, Chief Baron Eyre laid down the rule " that the son was to be taken as a purchaser for a valuable consideration, in order that all mat- ters of presumption in rebuttal of the son's claim might be avoided. This rule obviated many difficulties, but does not appear to be based on solid grounds, for if such purchase is a circumstance of evidence to rebut the trusts resulting in favour of the parent, it ought in Equity, like all other circumstances of evidence, to admit of being itself rebutted. Accordingly we find IMPLIED TRUSTS. 59 that the rule works inharmoniously with other rules of law. Thus we find it laid down, that if land be purchased in the joint names of father and son, the son, if he survives, will have the whole fee by the common law rule of the jus accrescendi, but if the son die first there will be a resulting trust to the father, whereas the common law rule would give the father the son's n^oiety by the jus accrescendi. When the purchase is made in the name of a son and a stranger, this want of harmony is not dis- cernible ; for the son, if he survives the stranger, takes the whole beneficially, and the stranger, if he survives the son, becomes trustee of the whole for the father. The doctrine of advancement obtains, in the case of persons placing themselves in loco parentis, A person is considered to be in loco parentis when he m.eans to assume any office which a parent might perform (m). VIII. In cases where at Common Law there is a joint tenancy. Equity, if possible, presumes a tenancy in common. Thus where a conveyance is taken by the pur- chasers to themselves and their heirs, but the pur- chasers advance unequal portions of the purchase- money. Equity will look upon the transaction as creating a tenancy in common. In the case of trustees the jus accrescendi is an advantage ; accordingly Equity looks upon trustees as joint tenants. Where a purchase is made for trading purposes («) Ex parte Pye, 18 Vesey, 140. 60 TRUSTS. by partners, they will be presumed to be tenants in common. Mortgages differ from purchases in that the naoney payment in the former is a loan, and not the price. A different rule accordingly obtains in Equity, where the money is advanced by two or more mortgagees, to what obtains at Common Law ; and Equity, considering the conveyance as a mere security, holds that the mortgagees are tenants in common, and not joint tenants, whether the sums advanced be equal or unequal. Since no survi- vorship will arise of itself, it is usually deemed convenient to insert a clause to the effect that the receipt of the survivor shall be a valid discharge. Jus accrescendi inter mercatores locum non habet is a rule of the Common Law as well as of Equity, though fully carried out in Equity alone. Constructive Trusts. A constructive trust is one which owes its origin to Equity, and does not depend on the intention of parties, express or implied. It arises when benefit or advantage is gained, even legally, which cannot be retained conscientiously, or so retained without paying its price. It is a prsesimiptio juris et de jure that is not re- buttable by evidence, though its enforcement may be barred by intervening equities. Thus, I. Any creditor of a deceased person, whose pro- perty has been transferred to legatees or distri- butees under the Statute of Distribution before CONSTRUCTIVE TRUSTS. 61 payment of the debt, may recover from the trans- feree or, transferees assets to the amount of the debt. This principle has been adopted by the legislature in 22 & 23 Vict. c. 35, ss. 27—29. An executor is trustee of a debt due from himself, though barred at law, and the heir of an unforeclosed mortgage in fee is trustee for those entitled to the personal estate. II. Where a person puj"chases or advances money on property, having at the time actual or constructive notice that a third person already has a prior right to or over the property, such prior right carries with it in Equity priority of remedy. A disregard of notice which is actual, not resting on rumour nor the statements of strangers, but coming from the person interested, is not to be distinguished from positive fraud. Constructive notice, however, cre- ates a constructive trust properly so called. Whenever, in the investigation of title or other- wise, recitals in deeds or other circumstances exist which ought to have put the person on inquiry, and which would have led to the discovery of another's interest, Equity considers the person neglecting to make the inquiry bound by the other's interest. Thus neglect to call for title deeds may give an equitable mortgagee, or other person holding the same, priority, though production of documents, without an opportunity of examining them, may not (a:), A condition not to call for the lessor's title fixes with notice of the same (j/). (x) Brnmfit v. Morton, V.-C. S., J. (37), 1198 {y) Robson v. FUght, L. C. W., J. (65), 147. 62 TRUSTS. Information of a partial restriction is construc- tive notice of the whole covenant {z). A Us pendens creating an incumbrance is con- structive notice. Actual notice to counsel, attorneys or agents is constructive notice. Though this must be in hostile cases, not in mere options for purchase (a). How far a person is bound by the moral or legal fraud of his agent is both at law and in equity an unsettled question. A purchaser for valuable consideration without notice is not bound by notice to his vendor. The same principle holds with respect to mortgages {b). The effect of the County and Irish Kegistration Acts calls for observation. Le Neve v. Le Neve decided that where lands in a register county were settled by a deed which was not registered, and on a subsequent marriage with notice of the former settlement, settled by a deed which was registered pursuant to 7 Anne, c. 20, the former settlement should prevail. Owing to this decision of Lord Hardwicke's the Registration Acts do not protect against actual notice. They still, however, have some effect and protect against constructive notice ; and further, to search the register is itself construc- tive notice of all that such search ought to have discovered. III. Under contracts of sale, where possession of an estate is given to a purchaser before payment of. the money, the vendor has a lien in equity on the (z) "Wikon II. Hart, V.-C. W., J. (65), 730. (a) Austin v. Tawney, 2 Ch. Ap. 147. (>) Chadwick v. Turner, 1 Ch. Ap. 310. CONSTEUCTrrE TRUSTS. 63 land for such money. This eqiiity prevails against persons coming in by act of law, as bankrupt assig- nees, even without notice. Not so if a valuable con- sideration has been paid. It may be relinquished, but the taking of additional security for the money is not conclusive evidence of relinquishment. When, however, the consideration of the convey- ance is a covenant, the lien is considered not to be relinquished, but to have no existence. • On the other hand, the purchaser has his lien for money paid when the title is not satisfactorily established. In Rose v. Watson (c), in the House of Lords, Lord Chancellor Westbury thus enun- ciated the law: — " When the owner of an estate contracts with the purchaser for the sale of it, or even for the immediate sale of it, the ownership of the estate is in equity transferred by that contract. Where the contract is undoubtedly an executory contract in this sense, viz., that the ownership of the estate is transferred, subject to the payment of the purchase-money, every portion of the pur- chase-money paid in pursuance of that contract is a part performance of the contract, executes it, and to the extent of the purchase-money so paid does in equity finally transfer to the purchaser the owner- ship of a corresponding portion of the estate." . . . " If that contract fails, and the failure is not to be attributed to any misconduct or default on the part of the purchaser, the question is a very obvious one : Is the purchaser to be deprived of the interest ia the estate which he has acquired by that bon^ fide (c) J. (64), 297. 64 TEUSTS, payment ?" "It only gives in point of fact an additional ground of complaint to the purchaser that he cannot obtain the estate he contracted for, and that being unable to obtain it by reason of the failure of the vendor, the loss to hitn is attempted to be aggravated by depriving him of the only means of acquiring the repayment of his money, — the vendor having become bankrupt, viz., by fol- lowing the interests which in respect of the payment of that money he had acquired in the estate." . . . " It was money advanced on the faith that the land, the subject of the contract, would become the pro- perty of the respondent, and being so paid as part of the purchase-money, pursuant to the contract, I think that your Lordships will have little difficulty in ruling that these sums of money thus paid formed principal sums ia respect of which a lien arose from the time of payment, in consequence of the subse- quent failure of the vendor to perform the contract, and being a lien they bore fruit consequently, that is to say, they entitled the person who is possessed of the lien to interest in respect of them." Mortgagees who advanced their money after the date of the contract were postponed. IV. We have already called attention to wrong- ful alienations of trust property. Such alienations create constructive trusts as against alienees for valuable consideration with notice, and as against voluntary alienees with or without notice. Such trusts are also created where trustees make any profit, or where agents make any illicit profit in the trust or agency respectively committed to them. CONSTRUCTIVE TRUSTS. 65 V. In leaseholds for lives and in copyholds where a person renews or obtains admission on his own account, he wiU be a trustee for all jointly inter- ested with him under the former settlement. Much of the life leasehold tenure property has changed its form under the management of the Ecclesiastical Commissioners. In Postlethwaite v. Lewthwaite (d), lessees for lives under a lease from a Dean and Chapter, which it had been for a long series of years a custom to renew, granted an underlease of part of the pro- perty, with a covenant for renewal on certain terms as often as the original lease should be renewed. The property of the Dean and Chapter passed to the Ecclesiastical Commissioners, who refused to renew the original lease, but sold the reversion in fee to the lessees under and upon the terms of 14 & 15 Vict. c. 104. Upon a bill by the underlessee to enforce the renewal of his underlease, Vice- Chancellor Wood held, that the underlessee's right to a renewal was gone, but that the reversioners were quasi trustees for him of the reversion pur- chased of the Ecclesiastical Commissioners, and bound to convey him the reversion in his portion of the property, on payment of a due proportion of the consideration given for the purchase of the property. VI. A person lawfully in possession, though the title be defective, and a joint owner, have each a Hen for money laid out in repairs and reasonable improvements. id) J. (62), 791. 66 TRUSTS. VII. If unmarried persons cohabit and have children, prim^ facie the man is trustee of moneys placed by the woman in his hands (e). Trusts Charitable. At the coronation the English monarch takes an oath to cause law and justice in mercy to be exe- cuted in all his or her judgments. Accordingly we find that one of the prerogatives of the Crown is to inform by the attorney or solicitor-general any of the courts of justice that some matter re- quires adjudication. Gifts to charities, seeing that they are mostly bestowed by will, idiots, and luna- tics, peculiarly need this aid and guardianship of the Crown. The jurisdiction is frequently spoken of as that of the Parens Patriae. This phrase, to be distinguished from patria potestas, which in the Boman law had a definite meaning in connection with an important branch of family law, is with us rather metaphorical, to express the humane care of the Crown over those thus needing its protec- tion. At the present day, where there is a general indefinite charitable purpose, not fixing itself on any object', it is in the Crown by the sign manual to declare the trust (_/"). Some have contended that the Crown had no jurisdiction in Chancery over charities till the times of Elizabeth. Various authorities, and the (e) James v. Holmes, J. f62), 553. (/) Moggridge v. Thackwell, 1 Ves. 464; 7 Ves. 36; 13 Ves. 416. TRUSTS CHARITABLE. 67 researches of the Record Commissioners, and the fact that the Crown is the fountain of justice, prove the negative. Still it was not till after the Ee- formation had broken the religious houses and scattered their lands, that the jurisdiction was likely to form a separate or concurrent branch of the Chancery Equity administration. In Justi- nian's Digest many i&stances of a benignant inter- pretation of charitable gifts are to be found. In our own country, at the accession of Edward I. the bishops took the goods of intestates to be distributed in pios usus. This was not only the origin of the jurisdiction of the Ecclesiastical Courts over wills, but leads to the conclusion that the same courts had some jurisdiction over charities. A clause in Magna Charta is directed against gifts and aliena- tions in mortmain. Porter's case (g) enumerates many statutes passed in Henry VIII. 's reign to prevent the further alienation of lands in mort- main to superstitious uses, to guilds and companies, and to suppress abbeys, priories, &c. 1 Edw. VI. c. 14, distinguishing good and charitable uses for the education of youth in virtue and piety at gram- mar schools, for the further augmentation of the Universities, and the better provision of the poor and needy, vested in the king all real and personal property theretofore disposed of for the mainte- nance of persons to pray for the souls of the dead men in purgatory, or to maintain perpetual obits, lamps, &c. These latter uses are still unlawful; formerly they (g) 1 Coke, 22 a. 68 TRUSTS, were altogether void, and the testator's representa- tive would have taken (h). Now, when they are coupled with a lawful charitable trust in the Koman Catholic religion, the funds are to be apportioned, and the whole applied to charities. — 23 & 24 Vict, c. 134. To the Act of Edward VI. most of the grammar schools in our country owe their existence. We now come to the statute whence the courts derive the technical meaning of the word charity. It is the 43 Eliz. c. 4, the Statute of Charitable Uses, which it enumerates as relief of impotentj aged and poor people, maintenance of sick and' maimed soldiers and mariners ; Schools of learning, free schools, and scholars in Universities ] repair of bridges, ports, havens, causeways, churches, sea banks and highways ; education and preferment of orphans ; relief, stock or maintenance for houses of correction ; marriages of poor maids ; supportation and help of young tradesmen, handicraftsmen and persons decayed ; relief or redemption of prisoners and captives ; aid or ease of any poor inhabitants concerning payments of fifteens, selling out of soldiers and other taxes. The cases on this head are numerous ; their prin- ciple is well summed up in Jones v. Williams (z), where it was held, that a gift to a general public use, which extends to the poor as well as the rich, as for supplying a town with water, is charitable. A gift without special directions to poor relations (7t) In re Blundell's Trusts, Jurist (62), 5. (i) 2 Ambler, 651. TEUSTS CHAEITABLE. 69 was held not to be charitable, but to go to the next of kin (A). By a construction put upon this statute gifts made to charities without the usual forms, such as fine and recovery, were held valid. In this they differ from ordinary trusts. Another difference is that, where a gift is made and a charitable inten- tion shown, though %uch as cannot be carried out, the court will devise a scheme akiu thereto or cypres. The same statute enacted that commissions might be awarded under the Great Seal to inquire of all gifts to such uses, and of all abuses and breaches of trust relative thereto, and to make orders for the future management of the fund, but exempted the Universities and cathedrals, and all colleges, hospitals and free schools, having special visitors or governors. The decree is returned to the Petty Bag Office, after which the questions may be con- tested in the Equity Courts as in an original suit. The mode of proceeding, being somewhat cumbrous, is seldom adopted. This exemption of charities having visitors is re- stricted to cases arising on the rules for the decision of which the visitor sits in foro domestico. Where the Crown is visitor the Lord Chancellor sits as representative (Z). If there is a dispute between the charity and a third person, the visitor being un- able to compel a specific performance or administer (k) Widmore v. Woodroffe, 2 Ambler, 636, (,1) In re Christ Chnrch, 1 Ch. App. 526. 70 TKUSTS. an oath, the Equity Courts have jurisdiction (m). So where there is a breach of trust, in preventing or neglecting the objects of the founder, the courts, and not the visitor, have jurisdiction to order a scheme to restore the proper application of the funds, or, where those objects have become im- proper, direct their application cypres (w) ; and such scheme may be altered from time to time, if circumstances require it (o). Where the charitable funds have increased, the courts will apportion the accretions, At.-G. v. Marchant ( p). This case is also important, because Vice-Chancellor Kindersley held that gifts to the poor are objectionable on principle, and refused to augment them. The reign of George II. witnessed the revival of the policy of Magna Charta and of Henry VIII. with reference to the alienation of land in mort- main. Such is the policy of 9 Geo. II. c. 36, which continues to be the law at the present day, though during the last few years modified by various sta- tutes, due to the late Sir Wniiam Atherton and Lord Westbury. Thus, sect. 1 enacts, that from and after the 24th day of June no manors, lands, tenements, rents, advowsons or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other (m) Green v. Rutherford, Hardwicke, L. C, 1 Ves. sen. 462; and Daugars v. Eivaz, M. R., J. (60), 654. (n) At.-G. V. Sherborne Grammar School, 18 Beav. 256. (p) At.-G. V. St. John's Hospital, Bath, 1 Ch. App. 92. (i?) 3 E. C. 434. r , , fv TRUSTS CHARITABLE. 71 personal estate whatsoever to be laid out or dis- posed in the purchase thereof, shall be given or conveyed, or in any ways charged or encumbered in trust or for the benefit of any charitable uses whatsoever,^ unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six calendar months after its execution, and unless such gift shall be made to take effect immediately and without power of revocation, or other clause for the benefit of the donor or those claiming under him. In the case of stock ia the public funds a transfer in the bank books six calendar months before death is suffi- cient. The British Musemn, the Universities of Cambridge and Oxford, their colleges, and the scholars on the foundations of Eton, Winchester and Westminster, are exempted. In At.-Gen. v. Ward {q), Vice-Chancellor Shadwell refused to hear an objection by third parties of non-enrolment, and, the trustees of the legal estate admitting the breach, appointed new trustees. In Wickham v. Marquis of Bath (r), Sir J. Komilly held, that a deed attested by one witness, though executed and acknowledged for the purpose of enrolment in the presence of two persons who are parties to and execute the deed, but do not sign the attestation clause, is not a deed sealed and delivered (2') 6 Hare, 477. (r) 1 E. C. 17. 72 TRUSTS. in~ the presence of two or more credible witnesses within the meaning of the Statute of Mortmain. 24 & 25 Yict. c. 9, allows reservations of mines and easements, &c., in a charitable deed, and toge- ther with 26 & 27 Yict, c. 106, 27 & 28 Yict. c. 13, gave validity to many deeds, enrolment of which had been neglected, &c. It is believed that the religious denominations have made great use of these Acts. The law was frequently evaded by secret trusts. Thus a conveyance inter vivos, or devise or bequest, was made apparently as a free gift, but in reality on the understanding or expressed wish that the taker would apply the property in mortmain. It was held by Lord Northiugton in Boson v. Statham (*), that whether or not the devisee had en- tered into an engagement, the devise of the legal estate would be void within 9 Geo. II. c. 36, This is scarcely correct ; the devise is good, though where a trust can be attached to the conscience of the devisee he will be a trustee for the heir (f). This distinction is important,, because in the absence of the heir there would be no escheat to the Crown of an -equitable interest (m). Knowledge of such a gift, and implied assent from silence or acquiescence, is sufficient to make the donee a trustee (a:). Where the donor makes a legal grant and keeps the deed, («) 1 Ed. 608. (t) Adlington ». Canns, 3 Atk. 141; Sweeting «. Sweetine,V.-C. K., J. (64), 31. ^ (it) Btirgess v. Wheate, 1 Ed. 177. (») Jones B. Badley, Lord EomUly, 3 E. C. 635. TRUSTS CHAEITABLE. 73 an agreement for a secret trust, subsequent to the conveyance, will be nugatory (y). 9 Geo. II. c. 36, s. 2, excepts transfers for a full and valuable consideration actually paid at or be- fore the making such conveyance or transfer with-? out fraud or collusion (z). Land was conveyed, in consideration of past main-i tenance of wife and children, to parish officers. It was held that enrolment of the deed was neces- sary (a) ; while in Doe v. Hawthorn (b) it was held, that a gift of a chapel on condition that a sum should be expended, and in consideration of an an- nuity of 10/. to commence after the death of the donor, did not require enrolment. Legacies are not marshalled in favour of charities. A recent case has decided that conversion of im- pure personalty, where the testator was not bound to convert, will not be presumed (c). A summary mode of obtaining redress by petition in breaches of charitable trusts, or the direction of a judge in the administration thereof, was provided by 52 Geo, III. c. 101, an Act known as Sir Samuel KomiUy's. The petition must be presented by two or more persons, with the sanction of the attorney or solicitor-general. It must also be at- tested by a solicitor. 16 & 17 Vict. c. 137, empowered Her Majesty to appoint four commissioners, a secretary and two in- (y) Ksher ®. Brierley, J. (63), 313, H. L. (a) Wickham v. Marquis of Bath, 1 E. C. 17. (ffl) Doe V. Howella, 2 B. & Ad. 744. (i) 2 B. & Aid. 96. (c) Lncas v. Jones, 4 B. C. 73. 74 TRUSTS. spectors, to form a board to inquire into the con- dition and management of charities, to sanction leases of charity lands, to give advice, to institute legal proceedings, and to compromise claims. The secretary is made a corporation sole with power to hold lands. The power of the attorney-general, acting ex officio, is preserved. Where the income of the charity is under 100/., and above 30Z., and in London even where below BOL, jurisdiction is given to a judge in chambers. Where the income is under 50/. jurisdiction was given to the district Bankruptcy and County Courts, subject to an ap- peal. The Act is amended by 18 & 19 Vict. c. 124 ; 23 & 24 Vict. c. 136. The chamber practice is regulated by Cons. Ord. 41, rr. 10—13. ( 75 ) ACCIDENT. The word is not usednn its logical sense, as denot- ing some property which is not of the essence of the thing or matter, but in the sense applied to the word by moral philosophers, who use it to signify some- thing not referable to design. EeKef on the ground of accident is not peculiar to Equity, though certaia instances are. At the Common Law an important maxim obtains. Actus Dei nemuii facit injuriam. This is paraphrased by Dr. Broom, in his valuable selection of legal maxims. It would be unreason- able that those things which are inevitable by the act of God (as storms, tempests and lightnings), which no industry can avoid or policy prevent, should be construed to the prejudice of any person in whom there has been no laches. Inevitable ac- cidents from other sources entitle to relief^ but a caution is requisite. Both at Law and in Equity if a person enters into a contract absolutely to do a certain thing, such an accident will not excuse him. I myself was lately counsel for a good clergyman, who, assisted by a committee of charitably-dis- posed gentlemen, had engaged a popular lecturer to amuse and instruct the inhabitants of the dis- trict. The arrangements were made. The au- dience assembled. A heavy snow-storm, which, the E 2 76 ACCIDENT. day being late in the season was certainly an acci- dent in the above sense of the word^ delayed the railway train, andj as the lecturer said, prevented him coming. The learned judge held that the lec- turer was bound by his contract, and therefore liable. A few simple words in the contract, such as wind and weather permitting, would have saved him. The effect of an Act of Parliament in relieving from a contract falls within the doctrines relating to accidents. The Corporation of London, for purposes con- nected with the Thames Conservancy, in the exer- cise of their legal powers raised money, and by bond secured it upon tolls and duties arising from the Thames. 20 & 21 Vict. c. cxlvii. vested these funds in Conservators. The Exchequer Chamber held that the Corporation was no longer liable on the bond (a). Bankruptcy does not relieve from covenants or agreements, except where the Acts specially provide otherwise, as in covenants in leases and conveyances, &c. Covenants to insure have been and are frequently inserted in leases and mortgages, and formerly were not unfrequently broken, so as to subject the lessee or mortgagor to a clause of forfeiture contained in the lease or mortgage. The Legislature has pro- vided relief for a breach of covenant which in many cases was accidental. Thus it is enacted by 22 & 23Vict. 0.35: — (a) Brown v. The Mayor, Commonalty and Citizens of London, J. (62), 1103. ' ACCIDENT. 77 Sect. 4. " A Court of Equity shall have power to relieve against a forfeiture for breach of a cove- nant or condition to insure against loss or damage by fire, where no loss or damage by fire has hap- pened, and the breach has, in the opinion of the court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the ap- plication to the court in conformity with the cove- nant to insure, upon such terms as to the court may seem fit." Sect. 5. " The court where relief shall be granted shall direct a record of such relief having been granted to be made by indorsement on the lease or otherwise." Sect. 6. " The court shall not have power under this Act to relieve the same person more than once in respect of the same covenant or condition : nor shall it have power to grant any relief under this Act where a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of court in favour of the person seeking the relief." Sect. 7. " The person entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire, shall, on loss or damage by fire happening, have the same ad- vantage from any then subsisting insurance relating to the building covenanted to be insured, eflPected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any per- son claiming under him, but not effected in con- formity with the covenant, as he would have from T8 ACCIDENT. an insurance effected in conformity with the co-vfe- nant." Sect. 8. " Where on the bon^fide purchase after the passing of this Act of a leasehold interest under a lease containii^ a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written receipt of the person entitled to receive the rent or his agent for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of the completion of the purchase an insurance in conformity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability by way of forfeiture or damages or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase of which the purchaser had not notice before the completion of the pur- chase ; but this provision is not to take away any remedy which the lessor or his legal representa- tives may have against the lessee or his legal repre- sentatives for breach of covenant." Sect. 9. " The preceding provisions shall be ap- plicable to leases for a term of years absolute or determinable on a life or lives or otherwise, and also to a lease for the life of the lessee, or the life or lives of any other person or persons." But even at the present day where a house is destroyed by fire no relief is given against the cove- nant for payment of rent. This was held to be law, though the landlord had received insurance money and neglected to rebuild (b). (J) Leeds v. Cheetham, 1 Sim. 146. ACCIDBNT. 79 The contingency of death is ground. for relief at the common law in cases of emblements, under the statute law for the apportionment of rent, 4 & 5 Will. IV. c. 22 ; in Equity, in cases of apprentices whose masters die during the term. Where money is directed to be laid out in land to the use of A. for life, remainder to B., and the money is laid out on mortgage, and the interest is payable every six months, should A. die within a six months' period his representative will be en- titled to a proportion of the interest. But where the interest on a bond was assigned by a lady, it was held that it did not accrue de die in diem, and that the court would not apportion it(c). At Common Law no action could be maintained on a deed without its profert or production. Equity in such a case allowed the former existence of the deed to be proved aliunde, and could administer relief on an indemnity being given. Subsequently the Common Law Courts dispensed with profert on proof of total destruction. Eegarding bills of ex- change and promissory notes the cases in Equity are not consistent with those at Law. Profert was not necessary, but it seems payment could not be enforced without giving up the bill. The Common Law Procedure Act, 1854, s. 87, enacts, that in case of an action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a judge to order that the loss of such an instrument shall not be set up, pro- (c) JoUands v. Burdett, L. J., J. (64), 349. 80 ACCIDElirT. vided an indemnity is given, to the satisfaction of a court or a judge or a master, against the claims of any other person upon such negotiable instrument. No special provision was made for bills or notes umder the amount of 20Z. (rf). The principle of the apportionment of the income of a fund on the death of a tenant for life is recog- nized in Cons. Ord. 23, r. 8. " "Where upon or after the death of any person to whom the interest or dividend of any stocks, funds, shares or securities standing in the name of the accountant-general in trust in or to the credit of any cause, matter or account, or any part of such interest or dividends, were or was payable for life, an order is made for the sale, transfer or delivery of such stocks, funds, shares or securities, or for payment of the interest or dividends to accrue due thereon subsequently to the death of such person : the same order shall also provide for the payment to the legal personal re- presentative of such person of such proportion of the interest or dividends on such stocks, funds, shares or securities as shall have accrued' between the last period of payment and the day of his death, unless the court or judge shall be of opinion that such legal personal representatives are not entitled thereto, or shall for any other reason otherwise warrant." (,d) Noble V. Bank of England, J. (63), 778. ( 81 ) MISTAKE. The term Mistake differs from the logical term misapprehension. The latter denotes a failure of the mind in forming a clear conception of an idea, the former a failure in acquiring a knowledge of matters of fact. From misapprehension, indeed, inadvertence or surprise, mistakes frequently arise. But one is a cause, the other an effect (a). Ignorantia juris neminem excusat, ignorantia facti exousat. The law is a science, and it is cul- pable negligence to draw out or enter into a con- tract without learning and weighing the part of the science which relates to the act or contract. " But no person can be presimied to be acquainted with all matters of fact ; neither is it possible, by any degree of diligence, in all cases to acquire that knowledge" (5). Facti interpretatio etiam pru- dentissimos fallit(c); and therefore an ignorance of facts does not import culpable negligence. But still, though the negligence be not gross, in many cases active diligence is requisite. (a) Some who hold with Lord Coke, 4th Institute, eh. 8, that the subjects of eqnity inrisdiction are three — covin, accident, and breach of confidence — ^make mistake a species of accident. Bnt a mistake entitles to relief as affecting the inception of a contract, while accident affects the performance of a valid contract. (J) Story, § 140. (c) Keratins i Phillimore on Jurisprudence, 96. £ 5 82 MISTAKE. Cases are to be found in the law books in which an ignorance of law seems to have been the groixnd of relief; Lord Westbury suggested an ingenious interpretation of the maxim which reconciles ap- parently conflicting authorities. Jus may be used in the sense of general law, or of a portion which appertains to an individual, viz., a private right (rf). It is a rule of general jurisprudence, which holds at Common Law and in Equity, that where there is no consensus ad idem, no mental acceptance of the proffer, there is no contract : Non videntur qui errant consentire (e). Thus Lord Chancellor Thurlow in Calverley v. Williams (/), said, " That if it were proved that one party thought that he had purchased bon^ fide what the other thought he had not sold, it was a ground to set aside the contract :" and Sir T. Plumer, in Clowes v. Hig- ginson (g), speaking of Lord Chancellor Thurlow's opinion on this point, states also, as the view of Sir W. Grrant, that the consequence of such a mistake would be, that in reality there was no agreement, but that the parties misunderstanding each other, the one proposing to buy one thing, the other to sell another, a contract so framed in mistake cannot con- sistently with justice be executed. Under similar circumstances a contract was ordered to be cancelled in Price v. Ley (h). But it is to be remembered (d) Cooper v. Phibbs, H. L., 2 E, & I. 149. (e) Digest, 50, 17, 116, 2. (/) 1 Ves. J. 210. (?) 1 Ves. & B. 524. (A) J. (63), 295. MISTAKE. 83 that parties may agree to a contract concerning in- cidents of which, not going to the root of the con- sideration, they are willingly ignorant ; they may also contract with respect to contingencies, the events of which cannot be foreknown, as in policies of assurance ; liiey may also contract by way of compromise, upon supposition of a right or doubtful right. Thus Lord Cl^ancellor Macclesfield, in Cann V. Cann (J), lays down the rule, " That an agree- ment entered into upon the supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be bind- ing, and the right shall not prevail against the agreement of the parties ; for the right must always be on the one side or the other ; and, therefore, the compromise of a doubtful right is a sufficient foun- dation of an agreement." A compromise cannot stand if there is know- ledge on the one side which is withheld from the other {k). The rule applies to compromises approved of by the court on behalf of infants. In Stainton v. The Carron Iron Company (?), Lord Justice Turner said:— "Where one of the parties has claims more or less extended against the other, the usual considerations which apply to cases of compromise, such as whether the parties under- stood their rights and questions of that nature, although perhaps they ought not wholly to be laid (i) 1 P. Wms. 723. (S) Brooke v. Mostyn, L. J., J. (64), 1114. It) 3. (fil), 645. 84 MISTAKE. out of view, cannot have the same decisive effect as might fairly be attributed to them in an ordinary case. The question in such a case ia not so much what the parties knew of their rights as what they intended to do, — whether the compromise which they have made was meant by them to cover all the claims, or to which of them it was meant to ap- ply." On appeal to the House of Lords the decree was affirmed (»w). In Hanslip v. Kitton(n), Lord Chancellor West- bury stated that it was a universal rule of law that a release is limited entirely by the recitals which precede it. In order that relief may be obtained on the ground of mistake, a restitutio in integrum must be possible, A change of condition may be fatal to the claim. This was held to be law by Lord Romilly in the Bishop of Natal v. Gladstone (o) : — " A contract was entered into by three parties to it, — the Crown, the trustees of the fund on behalf of the contributors, and the plaintiff, — and although it is true that this court will occasionally refuse specifically to enforce a contract where one of the parties who entered into it did so by mistake, and while ignorant of the real state of the case, yet, where the contract has not only been entered into, but has also been acted upon, and where it is impossible to restore all the parties to it to the same position which they were in before the contract was made, the Court of (m) J. (64), 783. (re) J. (62), 1113. (o) Bishop of Natal v, Gladstone, 3 E. C. 53. MISTAKE. 85 Chancery never annuls the contract. Who can now restore the plaintiff to his former condition in 1853 ? Assume that the contributors can truly say : We subscribed this fund to make the plaintiff a bishop, with coercive powers inherent in his own episcopal jurisdiction. We find that the plaintiff as bishop must have recourse to a court of law for that purpose, and w§ therefore annul the engage- ment. Could any court listen to such arguments, or could such a doctrine be admitted to annul the contract ? All persons are bound to know the law. Ignorance of the law, according to the hackneyed but most necessary maxim in our jurisprudence, and indeed in every jurisprudence, excuses no one. The contributors must therefore be treated as knowing, or as being bound to know, that to enforce the de- cision of the bishop he must have recourse to a court of civil jurisdiction, and that the court so resorted to would sit in judgment upon and review the cor- rectness of the decision to this extent — that the court would ascertain whether the bishop had acted within the scope of his authority, and had proceeded in a manner consonant with the principles of justice, and the plaintiff might justly say to the contribu- tors: You cannot now recede from your engage- ment, because that is made manifest to you which from the first you must or ought to have been well acquainted with." A most important class of cases involving a com- promise are those of family arrangements or settle- ments. 86 MISTAKE. Lord Chancellor Hardwicke^ in Stapilton v. Stapilton (p), ruled that where an arrangement is for the purpose of saving the honour of a father and his family, and is a reasonable agreement, if it is possible for a Court of Equity to decree a per- formance of it, it ought to be done. In Williams w. Williams (§•), the late Lord Justice Turner, a judge distinguished for his mastery of the practice of conveyancers, said : — " It has been strongly urged — that is, in argument — that cases of family arrangements extend no further than to arrange- ments for the settlement of doubtful or disputed rights. But this, I think, is a very short-sighted view of the cases as to family arrangements. They extend, as I apprehend, much further than is con- tended for on the part of the appellant, and apply, as I conceive, not merely to cases in which arrange- ments are made between members of a family for preservation of its peace, but to cases in which ar- rangements are made between them for the preser- vation of its property. The resettlement of family estates, upon an arrangement between the father and the eldest son on his attaining twenty-one, may well be considered as a branch of these cases, and certainly this court does not in such cases inquire into the quantum of consideration." At law the written contract, unless there is fraud or illegality, is conclusive. In a suit for specific performance the decree is frequently barred by the {p) 1 Atk. 2. (g) 2 C. A. 304. MISTAKE. 87 defendant proving a mistake, and Equity goes still further in that it allows such mistake to be proved by parol. But instruments may be rectified on the ground of presumed mistake, or mistake directly proved (r). Thus in cases of a loan made to two, where the instrument has merely expressed a joint obligation. Equity has considerq^ it joint and several ; and a partnership debt has been treated as several, though it is at law only joint. And a post-nuptial settle- ment will be rectified in accordance with articles entered into before marriage. And where the ar- ticles are final, and the settlement made before marriage is expressed to be in pursuance thereof, it may be rectified. But in order that a deed may be reformed, the mistake must have been an error common to both parties to the contract («). Belief in cases of conveyances with respect to the parcels, and of settlements with respect to the limitations, have been granted on the ground of a mistake by the attorney of instructions (f). In Daniel v. Arkwright (m) an appointment under a power to a child, her husband and children, by deed-poU, was rectified, and the limitation made to the child absolutely and alone, such being the in- (»•) On a bill for the rectification of a marriage settlement, where the mistake is common to both parties, relief may be decreed, without a restitutio in integrran. Harris v. Pepperell, W. N. (67), 265. (g) Bradford v. Romney, J. (62), 403, M. E. (t) V. & P. 143. («) J. (64), 764. 88 MISTAKE. tention of the appointors, wMch had been frustrated by the error of the solicitor. In Dendy v. Cary(w), Vice-Chancellor Wobd held the grantor of a Ipase liable even after execu- tion, on a parol promise to allow a right of way on faith of which the contract was entered into and alterations made in the house. (jtt) 3. (63), 845. ( 89 ) MAEEIED WOMEN. Maeeiage creates at Common Law such a legal identity of husband and wife that her capacity to enter into contracts, except as his agent, is destroyed ; her rights and liabilities on existing contracts are most of them merged in him, the rights at least to revive if he do not reduce them into posses- sion and she survives; the rents and profits of her real estate are transferred, and her power to dispose of an inheritance seriously curtailed. In Equity the rules of the common law relating to her freeholds, leaseholds, choses in action and other personalty obtain but a subordinate posi- tion. The right of dower exists, subject to the doctrines of jointure and equitable dower. She may enjoy property of any kind independent of her husband's control, which is called her separate estate. And she may claim a settlement out of her own property, and, in suits by creditors, have her husband's property marshalled in order to save her paraphernalia. In Equity marriage is a sufficient consideration for a contract before the solemniza- tion to settle their respective properties on them- selves and issue. Collateral issue could not uphold a settlement on themselves against the common law claims of creditors or purchasers for valuable con- 90 PEOPEKTY OF MAEEIED WOMEN. sideration. Settlements after marriage, and gifts from the husband to his wife, also teceive the sanc- tion of Equity, but not so far that they defeat the common law claims of others, unless, the wife, by settliag property of her own, has made herself a purchaser. The legal estate in and management of the wife's property ought to be vested in trustees. Dower. Before the Common Law Procedui:e Act, 1860, legal proceedings to obtaia dower were commenced by an original writ under the Great Seal directed to the sheriff, and made returnable to the Common Pleas. This relic of the Chancery as the oflBcina justitiEe to a superior Court of Common Law is now abolished. Before the Statute of Uses, the use not being acknowledged at Common Law, dower did not attach thereto, though it might to the legal estate, unless prevented by Equity. At the present day the heir of a person seised as trustee or mortgagee may in Equity restrain proceedings by the widow to recover dower. When most of the land was in uses, and there was little personalty in the country, it became usual to convey an estate to a woman in joint tenancy, the profits of which she would receive if she sur- vived her husband, and which was called a jointure. The Statute of Uses declared that a proper jointure should be a bar to dower. Had it not been for this enactment, dower, which being a right could not DOWER. 91 be barred till it accrued, and being to a freehold could not be barred by a collateral satisfaction, would, during coverture, have irrevocably attached to every use converted into a legal estate. Legal jointure differs from equitable in that the former derives its force from statute, the latter from contract. The former, therefore, could be made independently of the wife, whether an infant or of major years ; but if made after marriage, when the wife was no longer sui juris, she had an election of dower or jointure (a). In the latter of the two cases Lord Northington's decree ■W^as reversed by the House of Lords. An equitable jointure is a bar to that which is legal. Founded on contract it cannot be agreed to by an infant or married woman, but if the woman is sui juris, in the absence of fraud its quality and quantity are not considered (J). A contract before marriage to sell was also a bar. The custom of conveyancers moulding the trust for the purposes of a family settlement, and looking upon the common law right of dower as a complica- tion, explains why dower before 3 & 4 Will. IV. c. 105, never attached to a trust estate. Most of the clauses of the Act fall within the province of a writer on real property, but attention ought to be here directed to section 9 : " And be it further enacted, that where a husband shall devise any land out of which his widow would be entitled (a) Vernon's case, 4 Coke, f. 1; Earl of Buckinghamshire v. Drurv, 2 Ed. 60; 3 B. P. C. 492. (J) Dyke v. Kendall, 2 D., M. & G. 209. 92 PROPEETT OF MARRIED WOMEN, to dower if the same were not so devised, or any estate or interest therein to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her said husband, unless a contrary intention shall appear by will;" and to section 10, "that no gift or bequest made by any husband to or for the benefit of his widow of or out of his personal estate, or of or out of any of his land not liable to dower, shall defeat or preju- dice her rights to dower, unless a contrary in- tention shaU be declared by his will." Lord St. Leonards, in his treatise on the new staftutes re- lating to property (c), says, that these provisions appear to leave the old rules to operate as to what shall be deemed sufficient evidence of in- tention in a win to bar a wife of dower, so as to raise a case of election in the absence of ex- press declaration. These rules were well summed up by Vice-Chan- cellor Bruce in Holdich v. Holdich (ed, yet the equity being the wife's she may waive the whole without their consent at any time before it is made; but her death will not defeat her children's interest in any settlement already initiated. («) Durham v. Crackles, J. (62), 1174, "Wood, V.-C. EQUITY TO A SETTLEMENT. 99 The maxim Nemo potest transferre plus juris quam possidet applies when the entire estate in the pro- perty is the wife's. Assignees of a husband, even for a valuable consideratlonj are bound, and the claim is paramount to that of a set-off by an executor, but the maxim does not apply to a mere life in- terest, the reason being' that otherwise family affairs would be too open to inspection (y). (3) But a pay- ment previously to bill filed to the husband or his assignee by a trustee destroys her right, even though the trustee paying might have insisted on it («). The amount depends on the circimistances of the party and the conduct of the parties. Where there is already a marriage settlement, the order will be made with respect to the wife's fortune and the existing settlement. Where the husband is in- solvent and his conduct bad, even the income to which he is entitled for her support will be so settled. In Barrow v. Barrow (a). Turner, L. J., said: " The legal right of the husband to his wife's pro- perty is founded on the legal obligation to maintain her, and therefore, if owing to his misconduct, his wife is unable to live with him, this is a circumstance which cannot but affect the equitable consideration of his risht. The misconduct of the wife diminishes her equitable rights ; and it has been held that an adulteress has no equity to claim a settlement." If the domicile of the marriage contract is foreign. (y) Tidd V. Lister, 3 De G., M. & G., Cranworth, L. C. (z) Murray v. Elibank, 10 Ves, 84. (a) 24 L. J., Ch. 267; 5 D., M. & G. 782. f2 100 PROPERTY OF MARRIED WOMEHT. no equity to a settlement arises. Lex loci con- tractus regit actum. An English woman married a person with a French domicile. He had pre- viously been naturalized in France. The mar- riage ceremony was performed in the chapel of the English ambassador, marriage articles in the English form having been first executed. Eomilly, M. K, held that the Code Napoleon did not ap- ply, but that an equity attached to after-acquired property. When money, stock,, shares, or securities not ex- ceeding 200Z. in value, is or are ordered to be paid to a woman who marries, before payment the account- ant-general's office has to draw for the money or transfer, and deliver the stock, &c. to the wife and husband on proof of the marriage, and an affidavit by them of no settlement ; or, if there be a settle- ment, an affidavit by them identifying it, and one by their solicitor that it does not affect the property. Cons. Ord. I. rr. 1—3. In Wilkinson v. Gibson (S), V.-C. Wood decided that "the same consequences as to property must follow the declaration of dissolution by the Divorce Court as if the marriage contract had been annihi- lated, and the marriage tie broken on that date ; that those rights of the divorced husband which depended on the contract ceased at the same date. Accordingly, where at the date of dissolution the wife was entitled to a reversionary interest in a (*) 4 E. C. 162. EQUITY TO A SETTLEMENT. 1!)1 sum of stock whicli was not settled before her marriage, and tad been the subject of a post-nuptial settlement, and after the decree the fund fell into possession, and the divorced wife took steps to realize the fund, but before it was recovered, died ; it was held that her executors were entitled. ( 102 ) COMMEKCIUM. History — General Principles of Eg[uity Jwrisdietion — Contracts and tliei/r Specific Performance— Accownts — Partnership — Mortgages — Administration. History. Having stated that the relations of society affected by law may he classed under three heads — the con- nubium, the conunercium, and the civitas, and having considered the important equity jurispru- dence connected with the first in supplementing the law of the land and upholding family settlements and regulating the rights of married women — we proceed to the second, the commercium. Few subjects afford so much material interesting to the jurist, the statesman, and the merchant, as a history of the commerce of this country. Our method forbids us to expatiate in this field. We can only direct attention to those facts which illustrate our theme. Like a traveller we may visit many lands and many a people, but our place of settlement will not be amongst them. Magna Charta presents two laws worthy of notice. (1) There shall be one measure throughout the land. Commerce was no longer rude ; it was scientific and civilizing. (2) Foreign merchants are to have liberty to come and go. Most of these merchants came from the Hanse towns. They are to be traced as early as the reign HISTOET. l03 of Henry III. Tliey received a ctarter of incor- poration. They were afterwards known as the Merchants of the Steel Yard, and continued to exist even after the religious movement in Europe had raised the merchant adventurers of the Nether- lands to importance. These latter received their first charter a.d. 1296, from Edward I. The foundation of the republic of Holland confined its operations to the side of Hamburgh. The laws of Oleron, for which Christendom was indebted to Richard I. of England, afiect the maritime juris- diction of the Admiralty Courts rather than that of the Chancery. To the Italians, who may be traced as early as the reign of Edward I., or to the Jews, we are to ascribe the origin of bills of exchange. The sixteenth century witnessed the formation and incorporation of the Eussiati, the Turkey, the African, and the Eastland companies. The present factory in Russia, wrote McCullock, has little to do besides the management of certain funds. The Turkey Company, having extended its operations as far as India, had a notable dispute with the then new East India Company. It ceased to exist a.d. 1825. The African Company, after maintaining armed forts on the coast, for which it received sub- sidies from parliament, left the stage of this world A.D. 1821. The Eastland Company was formed in opposition to the Merchants of the Steel Yard. The East India Company was an enterprise formed in the reign of Elizabeth. It is but recently that its imperial jurisdiction has been surrendered to the Crown, and forms a department of the Home 104 COMMEECIUM. Grovemment. The same epoch, which witnessed the rise of these mighty companies with their charters under the Great Seal, witnessed a great in- crease in joint adventures, and with them of marine insurances. We have already noticed 43 Eliz. c. 12, which originated a jurisdiction touching marine policies of assurance by merchant adven- turers (a). The guilds or companies of the city of London call for notice with respect to their chari- table endowments rather than their commercial enterprises. The statute of the 21st year of James I. c. 3, which forbids monopolies, but au- thorizes patents for new inventions for a limited period, while it has benefitted trade has brought many fees to attorneys-general and to solicitors- general, as well as much protracted litigation to the Superior Courts of Equity and Common Law. Some have proposed that a separate court should be established for the consideration of the scientific questions involved in patent cases. A.D. 1651, the Commonwealth wishing, as Black- stone remarks, "to clip the wings of those over- opulent and aspiring neighbours the Dutch," pro- hibited the importation of goods into England, or any of its dependencies, in any other than English bottoms, or in the ships of that European nation of which the merchandise imported was the genuine growth or manufacture. This was the origin of those navigation laws whose policy was not changed till the present reign. The act of repeal gives a limited jurisdiction to the Equity Courts, (a) Oiigin and History of the High Court of Chauoeiy, page 12. HISTORY. 105 5 "W". & M. c. 20, provided for the institution and incorporation of the Governor and Company of the Bank of England. 3 & 4 Anne, c. 9, and 7 Anne, c. 25, made pro- missory notes payable to order or bearer negotiable, placing them on the same footing as inland bills of exchange, thus further extending the equitable doctrine that choses in action are assignable. 18 & 19 Vict. c. Ill, gave to a consignee of goods named in a bill of lading, and every endorsee to whom, the property in the goods should pass upon or by reason of such consignment or endorsement, all rights of suit, and made them subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with them respectively. The right of stoppage in tran- situ and any right to freight are preserved, 19 & 20 Vict. c. 97, an Act to amend the Laws of England and Ireland affecting Trade and Com- merce, contains many and important provisions, some of which call for notice in other parts of this work. The Companies Act, 1862, renders the obtaining a charter of incorporation; or an Act of Parliament with the same object, imnecessary in ordinary cases. Hitherto we have considered commerce when successful in its operations ; but the historic picture has its shade as well as its sunshine. Trading has been, and is, alas ! frequently not the exchange of commodities, or the buying, selling or trafficking of merchandise, money, or title papers, but it is the use of fictitious capital, and it exhibits debts F 5 106 COMMEKCIUM. contracted without reasonable or probable ground of expectation of being able to pay, books of account badly if not falsely kept, rash and hazardous specu- lation missing the mark, extravagance in living indulged in for its own sake, or to obtain fictitious credit (5). These causes, and sometimes others which human prudence or honesty cannot control, lead to failure, and the trader makes bankrupt. The policy of the law in the treatment of bank- rupts has varied. In the first epoch a creditor had no other remedy than by execution on writs directed to the sherifi", and issued in the common actions. The writ authorizing the seizure of goods was and still is the fieri facias, of lands the elegit. 13 Edward I. (De mercatoribus), 27 Edward III. c. 9 (statute of the staple), created two securities for debts acknow- ledged to be due, whereby till payment the body of. the debtor might be imprisoned, his goods and lands taken. The first Bankruptcy Act is the 34 & 35 Hen. VIII. c. 4. For each bankruptcy a com- mission under the Great Seal was to issue, under authority of which all the property was seized, for rate and rate alike division among the creditors. 13 Eliz. c. 7 followed, a statute of the same series as those relating to fraudulent gifts and convey- ances. 4 Anne, c. 7, introduces the new and more merciful principle, that a creditor surrendering the whole of his property, and conforming in other regards, should in the absence of fraud be dischai^ed from further liability on his debts. The Lord Chancellor, on appeal from his com- (J) 2i & 25 Vict. c. 134, s. 221. HISTORY. 107 missioners, could not, according to some, enforce compliance with his recommendations. Partly on this, partly on that of increase of business, partly on political grounds, 1 & 2 Will. IV. c. 56, established a separate court, with one chief and three puisne judges. The judges had little to do, and the court was abolished by 10 & 11 Vict. c. 102, which transferred the appellate jurisdiction to a Vice-Chancellor to be named by the Lord Chancellor. The Bankrupt Law Consolidation Act, 1849, reconstituted the court under permanent conunissioners, with an appeal to a Vice-Chancellor. 14 & 15 Vict. c. 83, the Act establishiag the Court of the Lords Justices, transfers to them the powers, authorities and jurisdiction, original and appellate, of the Vice-Chancellor in bankruptcy. This is said to be a statutory recognition of what some have doubted — an original jurisdiction apper- taining to the Chancellor. From this court there is an appeal to the House of Lords on a special case to be certified and approved by one of the judges. The Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), passed under the auspices of Lord Chaucellor Westbury, repeals upwards of one hundred of the two hundred and seventy-eight sections of the Consolidation Act of 1849. The most important changes relate to the management of the debtor's property, which formerly were of a disproportionate cost, and to the substitution of the bankruptcy law in the room of that of insolvency, thereby enabling non-traders to obtaiu a discharge from liability. The scientific law reformer would place the 108 COMMEECIUM. winding up of a, joint stock company under the jurisdiction which administers the bankruptcy of an individual or of a private partnership. Such an arrangement, however, would call for a chief judge, assisted by one or more puisnes of equal weight with the Common Law Judges and the Vice- Chancellors. Accordingly the Companies Act of 1862 assigns the general jurisdiction for winding up companies to the English High Court of Chan- cery. A series of elaborate orders in connection therewith was issued 1 1 Nov. 1862. We are now in a position to take a general view of the principles on which the equity jurisprudence relating to commerce rests. (1) Mercantile transactions, whether resting in common and ordinary contracts of sale and ex- change, or on mercantile instruments, require an expeditious remedy for a breach ; the breach, there- fore, is better compensated by the speedy process and money damages of the conomon law than by a dilatory and reluctant specific performance, the appropriate remedy of a court of conscience or equity. (2) The Common Law Courts formerly possessed no machinery,- or no satisfactory machinery, for taking arithmetical accounts exceeding one or two items. Therefore the administration of estates, whether in partnership, bankruptcy, or on death, has devolved on the Chancery, (3) The common law rules of pleading and prin- ciples could give no relief where several persons were plaintiifs or defendants. Therefore unincor- HISTOEY. 109 porated partnerships were in many instances driven to the Chancery jurisdiction. (4) In loans of money between man and man, the common law instruments and rules proved oppres- sive and inhuman. Therefore the holder of the great seal interfered, and the law of mortgage mainly falls within his equity jurisdiction. CONTKACTS. The doctrines of the Common Law pertaining to contracts obtain in the Equity Courts, as do also the important additions which follow. (1) Marriage is a good consideration, not only as between the parties, but as affecting their issue. (2) The abuse of oflBcial or semi-ofl5.cial positions of private trust invalidates contracts. (3) Mistake, and what is called accident, are grounds of rescission or relief. (4) Where damages would not be an adequate remedy specific performance will be decreed, (5) Executory contracts touching real and per- sonal property are treated as executed, and form sources of rights affecting not only the parties, but their real and personal representatives. This doc- trine is most important with reference to a contract for the sale of land. (6) The requisites of the Statute of Frauds, where a contract relates to land and is partly performed, may be dispensed with. The three first of these heads are discussed in other parts of this work, though the doctrines touching mistake will call for further notice in the ensuing sections. 110 COMMEECIUM. Specific Performance. Where the common law remedy of damages for a hreach of contract is not adequate, equity will decree a specific performance. We have already stated that the common and ordinary contracts fall within the jurisdiction of the Common Law Courts, because where expedition is required, and a similar thing or article to that contracted for, whether consols or a carriage horse, is easily 'procured, damages meet the equity of the case. On the other hand, a contract for a particular house or piece of land must he specifically performed,(a). The Year Book, 8 Edw. lY. 4 b. exhibits the early origin of the remedy. An agreement to lend a sum of money is not enforced in equity (S). Articles of partnership may be, but the court will hesitate if there exists ill will between the parties. Sale of shares in a partnership may be enforced (c). Still more the sale of shares in a company order€d to be wound up (. Mosenthal, J. (62), 275, M. E. (o) Homfray «. Fothergill, 1 B. C. 667. {S) Paine v. Hntchinson, 3 E. C. 257i L. J., 2 D. & S. 283. (e) Armstrong v. Armstrong, 21 Beav. 78. SPECIFIC PEEFOEMANCE. Ill Act, 1862, while keeping the register clear from notice of trusts, enacts that equities may be enforced against owners and mortgages in the same manner as equities may be enforced against them in respect of any other personal property (_/). Specific per- formance of a contract to construct a railway is beyond the powers of the court to control, and therefore has been refused (ff). Turner, L. J., held, affirming the decree of the Master of the KoUs, that a covenant for the use of a railway and harbour might be enforced; Bruce, L. J., dissented (A). But specific performance of an award to execute a lease of a right to use a railway has been re- fused (i). Argumentimi ab inconvenienti plurimum valet. An agreement to let a house for three years at a yearly rent, bound the landlord to grant the tenant a lease for a term, from the expiration of the three years' occupancy, at the same rent, the tenant to keep the house in repair. Eomilly, M. E., decreed specific performance four years after the expiration of the three years (A). 21 & 22 Yict. c. 27 enables the Equity Courts to give damages where there is a right to specific performance. But the damages are given as an incident to and not in substitution of the usual remedy (J). (/) Sect. 3. (ff) Peto V. The Brighton, Uckfield and Tonbridge Bailway Com- pany—" The Times," 26th June, 1863. (A) Wilson V. West Hartlepool Railway and Harbour Company, J. (65), 124. (i) Blackett v. Bates, 1 Ch. Ap. 117. (k) Moss V. Barton, 1 E. C. Hi. (J) Lewers v. Earl of Shaflesbmy, 2 B. C. 270. 112 COMMEECIUM. It is sometimes said that there must be mutuality in the contract. By this is meant mutuality of remedy, not of consideration, for absence of the latter would, as at law, vitiate the contract itself. And the rule refers to cases where something is to be done, that is, where one promise is made in con- sideration of another. As equity cannot well en- force the substantial performance, it usually leaves the parties to their common law remedies (wi). To this rule there seems to be an exception when a party, who is freed from liability by the Statute of Frauds, prays for specific performance of a contract touching land. But a person seeking equity being bound to do equity in this case a mutuality arises when plaintifi" files his bill. Contract for the Sale of Land. This contract is so frequently to be met with in counsel's chambers, and so often calls for adjudica- tion by an equity judge, that in justice to our readers we shall consider it somewhat in detail. Sometimes these contracts are in the form of par- ticulars of the property and conditions of sale, signed in accordance with the Statute of Frauds by the parties or their agent the auctioneer. At other times in the form of articles of agreement, also signed in like accordance. The terms relate to the price, deposit, title, evidence, abstract, time ef pay- ment, and conveying, interest, and remedy for mis- description, &c. Each of these heads might form (m) The cases on railways, p. IH, CONTRACT FOR THE SALE OF LAND. 113 the subject of a chapter, as is the case in the able works on Vendors and Purchasers by Lord St. Leonards and Mr. Dart. Our method, however, does not permit us to enter upon the common law doctrines further than they are connected with equity, and of the equity doctrines many are noticed in other parts of this work. In both departments of the law a rescission of the contract by either party is allowed when the other is imable or unwilling to perform his agreement j except that ia equity — (1) Time is not of the essence of the contract ; (2) If there be but a small defect in the quantity or quality of the estate or title, specific performance with compensation will be decreed. If such misrepresentation or fraud is practised as to ground on action for deceit, the conveyance, even though, executed, may ia equity be set aside. In- adequacy of price, imless so gross as to be con- clusive evidence of fraud, or unless accompanied with circumstances of imposition and oppression, is no bar to the discretion of the court in granting specific performance. Acquiescence bars a remedy and confirmation releases a right. If the parties have been at arms-length a subsequent discovery of another objection is no ground for fresh re- sistance (w). Where the contract itself is founded on fraud or oppression, acquiescence, whilst he is under the same diflSculty and embarrassment, will not of itself bar his title to relief. To give validity to a confirmation of a voidable conveyance the party confirming must not be ignorant of his right, still (») Russian Vyksounsky Iron Works Company, 3 E. C. 790. 114 COMMEECrOM. less can his right be concealed from him by the other party. He must further know that the transaction is impeachable ; and with such know- ledge and under no influence his execution of the deed must be sponte sua. Knowing not only the fact of the defect of title, but also its consequences in law, he must be a free agent, not under the in- fluence of the previous transaction. If there is no valid rescission of the contract, and yet one party, without a defence on the ground of fraud, surprise, mistake or otherwise, objects to com- plete the sale or purchase, the other party, if he thinks damages at law an unsatisfactory remedy, may file a bill in equity praying that the agreement be specifically performed, that proper directions be given for a conveyance and for further relief. The order made may run in the following form : — " The court doth declare that the agreement in the pleadings mentioned ought to be specifically performed and carried into execution in case a good title can be made to the hereditaments comprised therein, and decree the same accordingly ; and let the following inquiries be made, that is to say : (1) An inquiry whether a good title can be made to the estates comprised in [Lot in the particulars of sale, &C.J the agreement in the plaintiffs bill mentioned ; (2) And, in case it shall appear that a good title can be niade to the said estates, an in- quiry when it was first shown that such title could be made, and that the further consideration be adjourned." The second inquiry may be important with respect to the right to rents or to interest. A clause declaring defendant bound to accept the title CONTRACT FOE THE SALE OF LAND. 115 subject to a small defect, or with an indemnity against a mortgage, is not infrequent (o). In the aboTC form we find the expression good title brought prominently forward. It is to be observed that in equity a title may be too doubtful, either in respect of a rule of law or a question of fact, to be enforced. In the Superior Courts of Common Law any title, though doubtful in equity, on which a plaintiff might recover in ejectment is good. For a list of titles which have been held good or doubtful in equity the reader is referred to Lord St. Leonard's Treatise on Vendors and Pur- chasers (13th ed. ch, 10, s. 3). To those there given the following more recent cases may be added. In Collier v. McBean (p), the estate being given, but charged in the hands of trustees with payment of debts and legacies, after payment thereof, and conveyances to the donee, his title was too doubt- ful, it not being certain whether the trustees had received an absolute fee or one determinable on payment. In Minton v, Kirwood (§'), Stuart, V. C, held that it is no sufficient objection to the title of the vendor of an enfranchised copy- hold, that a mortgagee to whom a surrender had been made had not been admitted before the en- franchisement, the deed of enfranchisement having conveyed to the vendor all the rights of the lord. In Hume v. Pocock (r), the subject of sale was all the estate, right and interest in certain lands, the (o) Seton on Decrees, 593. O) 1 Ch. Ap. 81. ^) IE. C. 449. (/■) 1 E. C. 423, 662; 1 C. A. 379. 116 COMMEECIUM. plaintiff to produce only the title from the vendor. Stuart, V. C, and the Lords Justices, held that the defendant was not at liberty to show aliunde that the plaintiff's vendor had no title. On the usual references the chief clerk certified that the plaintiff could not show a good title ; but, it appearing that the defendant had since the purchase acquired the means of curing the defect, leave was given to amend or file a supplemental bill. Nicholl v. Jowell (s) is another noteworthy case. By the will of A., made in 1838, real estate was appointed to B., a married woman. By a subsequent will of 1858, the whole of A.'s property, real and personal, was given to E. The will of 1858 was propounded by E., and probate was opposed by D., the heir at law of A. In the course of the trial a compromise was made. The compromise was signed by C, the husband of B., for himself and wife, and who, though not a party to that suit, was present in court, and by D.'s attorney for D, and B., though without any express authority from B. In a suit for the specific performance of the compromise. Wood, V.-C, held that though the married woman and her husband had taken the full benefit of the arrangement, and only at the last moment dropped the mask, yet specific performance must be refused, as the formalities required by the Act for Abolition of Fines and Hecoveries to bind her estate had not been observed. The minutes of the final decree for specific per- (») 3 E. c. 396. CONTRACT FOE THE SALE OF LAND. 117 formance usually are as follows {t) : — " Declare that the agreement in the plaintiff's bill mentioned, dated , ought to be specifically performed and carried into execution, and decree the same accordingly: (1) And let interest be computed at the rate of £ per centum per anniun on the sum of the [residue of the] purchase-money for the estate comprised in the said agreement, from the day of , when the same ought to have been paid according to the terms of the said agree- ment : (2) And let an account be taken of the rents and profits of the said estate received by the plain- tiffs or any of them, or by any other person since [Here a direction as to costs is sometimes added :] (3) And let upon the plaintiffs executing a proper conveyance of the said estate to the de- fendant (at the expense of the defendant according to the said agreement), or to whom he shall appoint, such conveyance to be settled by the judge in case the parties differ, and delivering to the defendant upon oath all deeds or writings in their custody or power relating to the said estate, the defendant pay to the plaintiffs the balance which shall be certified to remain due to them in respect of such money and interest (and costs). Liberty to apply " (m). Specific Performance of Agreements of Land on the ground of Part Performance. While treating of specific performance of agree- ments relating to lands it seems more convenient to (*) The vendor is supposed to be the plaintiff. The correspond- ing changes for a vendee plaintiff are easily made. («) Seton on Decrees, 607. 118 CdMMEBClUM. notice at the same time certain incidental doctrines which in principle appertain to the chapter on Frauds. The Statute of Frauds, it may be remem- bered, requires such contracts to be in writing and signed by the party to be charged. Where though such an agreement fails to satisfy the requisites of the statute, yet one of the parties has been induced or allowed by the other on faith in the agreement to alter his position, as, for instance, by taking pos- session, expending money in buildings, or other like acts of part performance, there equity considers it unconscientious that the statute should be insisted upon. Part performance resting on evidence, the application of the doctrine must be learnt from examples. We may premise that an inchoate agree- ment gives no more title to relief at equity than at law, and that the acts relied on must be referable to the agreement (x). Entrance into possession is an important circum- stance, so is expenditure of money in repairs or im- provements. Payment of the purchase-money does not entitle to specific performance. In Millard v. Harvey (y), where a father-in-law had promised that his son-in-law should occupy a house during life, the Master of the Rolls held that the making of repairs did not take the case out of the statute. In Nunn v. Fabian (2), Cranworth, L. C, enforced specific performance of a parol agreement to grant a lease, where the most important if not the only evidence of part performance was a signed receipt {as) Price v. Salnsbuiy, J. (63), 838. iy) 3. (64), 1167. (j) J. (66), 868. CONTEACT FOR THE SALE OF LAND. 119 for a quarter's rent at the increased rate to be paid under the lease. In accordance with the general doctrine, some of the judges have felt themselves bound to introduce in some manors a species of tenant right, that is, a right to a long lease after permitted expenditure in building. However, a majority of the judges in the House of Lords have otherwise settled the law. In Eamsden v, Dyson & Thornton (a), it was held, that if a stranger begins to build on land, supposing it to be his own, and the real owner, perceiving his mistake, leaves him to persevere in his error, a court of equity will not afterwards allow the real owner to assert his title to the land. But if a stranger builds on land, knowing it to be the property of another, equity will not afterwards prevent the real owner from claiming the land, with the benefit of all the ex- penditure upon it. So if a tenant builds on his landlord's land, he does not, in the absence of special circumstances, acquire any right ' to prevent the landlord from taking possession of the land and buildings when the tenancy has determined. The making of a will, in accordance with a parol promise of settlement before marriage, will not on the ground of part performance take the case out of the statute (5). Previously to a marriage the intended husband and wife agreed in writing that the husband should have the wife's property for his life, he paying her 80/. (a) H. L., 1 E. & I. 129. (J) Caton V. Caton, 1 C. A, 137. 120 COMMEECIUM. a year as pin money, and that she should have it after his death. They gave instructions for a settlement upon that footing. The settlement was accordingly prepared, when they agreed that they would have no settlement, the husband promising, as the wife alleged, that he would make a will giving her aU her property. The marriage took place, and the husband made a will accordingly. After his death a subsequent and different will was found. Lord Cranworth held, " that marriage being necessary in order to bring a case within the statute, to hold that it also takes the case out of the statute would be a palpable absurdity. And further, that the nature of the alleged agreement was such as hardly to admit even on the part of the party to be charged of anything like part performance. As a will is necessarily until the last moment of life revocable, a contract to make any specified bequest, even when a will having that effect has been duly prepared and executed, is in truth a contract of a negative nature, a contract not to vary what has been so executed, I do not see how there can be part performance of such a contract." The decision has been affirmed in the House of Lords (c). Where a parol variation of a contract has been in part performed, a decree for specific performance may be obtained. Though there be a written con- tract, parol evidence is admissible in equity in all cases of fraud and mistake, and even to prove the total abandonment of a contract. (c) W. N. (67), 158. ( 121 ) Accounts. Wherever an account was incidental to or con- nected with an equitable right, the jurisdiction to decree an account existed only in the Courts of Equity. Where an account was incidental to a legal right, and the items few and the balance struck, the common la^ could give adequate relief in an action of assumpsit. WTiere, however, the account was still open and involved many or com- plicated items, or where a discovery was wanted or a multitude of suits to be prevented, the only remedy was in equity ; except, to some extent, in the case of a bailiff, receiver, guardian in socage and merchant, against whom an action of account, now fallen in desuetude, was allowed by the Com- mon Law. But the Equity Courts went further. A stated account might, and still may, be opened on the ground of omission, fraud, accident or undue advantage. Sometimes the whole account is taken anew, or the creditor has leave to surcharge or the debtor to falsify particular items. A settled ac- count, especially if partaking of the nature of a release, is not readily interfered with. But even then it may be set aside, if obtained by fraud. The Common Law Courts, under their Act of 1854, have the power of referring questions of accounts to arbitrators. The debtor has a right to appropriate any pay- ments which he makes to whatever debt due to his creditor he may choose to apply it. If the debtor omits to make any such appropriation, the creditor has a right to appropriate the payment to such debts G 122 COMMEECIUM. due to him by the debtor as he may choose. In the case of running accounts, in which items of debt on one side and items of credit on the other accrue at different times and no special appro- priation of payments is made, the successive pay- ments or credits are to be applied to the discharge of the items of debt antecedently due, in the order of time in which they stand in the account. In a bill for an account, both plaintiff and de- fendant are actors and may obtain orders, and each may allege his own claim, so that before striking the balance one sum will be set off against another. If a plaintiff seeks to open a settled account, a case of fraud must be made out, and, if to surcharge or falsify, errors must be shown (d). " The relation of solicitor and client," said Lord St. Leonards (e ), " is so strong a circumstance that when the relation subsists the ordinary rule as to the settlement of accounts, so prevailing upon the mere evidence of the settlement, will not be enough, for although the party only alleges, generally, that the accounts settled are erroneous, the court will, if sufficient cause be shown, make a decree to open the accounts." " By the law of the court," said Stuart, V.-C, in Morgan v. Higgins (f), " a solieitor may vaKdly settle his accounts with his client for accepting a gross sum as a remuneration for his services, without the delivery of full and particular bills of costs. But if he settle an account with his client, (_d!) Blagrave v. Ronth, J. (57), 399, Turner, L. J. («) Lawless v. Mansfield, X Dxi & W. 605. (/) J. (59), 236. ACCOUNTS — PAETNEESHIP. 123 or if he make an arrangement with his client to accept a gross sum instead of delivering bills of costs, this court considers that the relation of solici- tor and client creates so much of what in some cases is called pressure, that imless the solicitor take the precaution of preserving the evidence to show that the settlement of accounts is a just settle- ment, or that the agreement to accept a gross sum was an agreement made fairly by the intervention of that which would put both parties on an equal footing, this court will not allow the transaction to stamd." Paetnekship. The equity doctrines concerning the contract of partnership may be divided into two classes: I. Those which relate to the connection existing between the partners, II. Those which relate to strangers. I. The simplest form of the contract is where one person supplies capital, another skill and labour. Thfe division of profits would be a question of some difficulty. But a division in proportion to the inte- rest which the one might have made in the ordinary investments, and to the salary the other might have gained in the same employment, is perhaps equit- able. Articles of partnership^ when drawn by a skilful conveyancer, are in the form of mutual covenants : as to the name of the firm and object of the business ; as to the partnership property and the proportions of the capital to be advanced; as to the mode of conducting the business ; the use of the partnership name ; keeping the accounts ; division of profits ; and as to the dissolution, &c. Equity g2 124 COMMEKCIUM. sometimes grants specific performance of such articles in their entirety, or of subsidiary stipula- tions if clear and definite (gi); yet the fact, that a partnership founded on litigation and distrust is not likely to be successful, is an objection not without weight. If accounts are to be taken, the remedy at law in covenant or assumpsit is, if not futile, very inferior ; while in equity not only may a breach of the contract, but acts injurious to the partnership, be restrained by injunction. The bankruptcy or death of a partner dissolves his partnership. Generally the articles or the acts of the partners regulate a dissolution, but in order to prevent mischief a sudden dissolution in iU faith will be restrained. Bomilly, M. R., thus states the rights as they exist at death (A). " A mortgage continues on the stock in trade as it continues from time to time. But on the death of a partner the case is altogether dif- ferent. There is, as Lord Eldon very accurately expresses it, a quasi lien ; there is, in point of fact, only a right to the specific property. The executors of the deceased partner are joint tenants with the surviving partners, and accordingly they are entitled to require the surviving partners to do one of two things, either to wind up the partnership business at once, or to fix the value of the testator's property and secure the payment of the amount. " If the executors do not apply for a receiver, but simply file a bill for the winding up of the partner- ship, I apprehend that the new stock which has (fl) Sichel '». Moseuthal, J. (62), 275. (A) Payn v. Hornby, J. (58), 446. PARTNERSHIP. 125 been acquired during the time the business has been carried on by the surviving partners belongs in the first place to the creditors who have been created by such subsequent dealings, and not to the creditors of the old partnership." A portion of the value of a goodwill belongs to the deceased partner. Real estate belonging to the partnership is, in equity, converted into personalty. And not only so during the lives of the partners ; it descends to their personal representatives. Our law admits of dissolution more readily than did the Eoman, whence we have derived so many of our rules for contracts. " Our law," said Turner, L. J., "leaves either partner at liberty to dissolve where the partnership is not for a definite period, but in giving effect to the dissolution it deals with the case according to what is just and equitable between the parties. It has indeed refused to inter- fere with the legal rights of the parties where there has been no fraud . . . but it has exercised a wide discretion in these cases, at all events, as to what shall be considered fraud." Bruce, L. J.'s opinion was the same {i). ,. Further, though the agreement is that the part- nership shall last for a certain period, yet if the business cannot be carried on but at a loss, a decree for dissolution may be obtained. And where the conduct of a partner is such as to destroy all con- fidence in him, as where one of a firm of attorneys and solicitors sold out some trust funds and appro- priated them to his own use. Lord Eomilly held (i) Bnrdon v. Barkns, ex relatione the writer, and J. (62), 656. 126 eOMMEECIUM. that the other partner may dissolve instantly (j). The court will not compel partners to carry on partnership with the committee of a lunatic, for it might involve them in continual litigation of a very onerous and expensive character, inasmuch as any question which might arise would have to be de- cided by the Lords Justices at a necessarily great expense (A). Partners, being agents, ought not to make a profit out of goods supplied to the firm; there is an exception in the case of a part owner of a ship acting as ship's husband, Aough he entered upon the duties without special agreement (I). The decree for dissolution sometimes orders ac- counts : (1) of the dealing and transactions ; (2) of the assets ; and (3) a sale of the assets, of which the goodwill may form a part. Sometimes the concern is sold, to use the phrase, as a going concern. II. We now pass to the consideration of the con- tract with respect to strangers. Joint creditors have a priority in the administration of the partner- ship efiects ; a separate creditor in that of separate estate. Thus we find Vice-Chancellor Stuart ruling that joint creditors, who had received part payment out of the joint estate in bankruptcy, were not en- titled, as separate creditors, to be paid pari passu with the separate creditors of a partner who died solvent before the bankruptcy, but only entitled to be paid out of the estate which remained after pay- ing the separate creditors. (j) Essell V. Hayward, J. (60), 690. (A) Rowlands v. Evans ; Williams v. Eowlands, The Timet, Not. 11, 1861, M. E. (I) Salter v. Adey, J. (55), 930, V.-C. S. PARTNERSHIP. 127 To the general rule that in running accounts the debtor, and on his omission the creditor, may apply a payment in discharge of a particular item, the case of a dissolution, by death or otherwise, is an exception ; if the old account is carried on the items are applied in extinguishment of the balance due from the old firm. Instances of this are to be found in banking more frecpiently than in other partner- ships. The dissolution or -winding up of joint stock com- panies is regulated by the Companies Act of 1862, and the ordinary practice of the Equity Courts. In this work we can but call attention to this most important Act, Mortgages. Few, if any, chapters of commercial law are more important than that portion of tlie law of debtor and creditor which relates to securities for loans. Loans are secured by bills of exchange, pro- missory notes, bonds, railway debentures, exchequer bills, coupons, sureties, pledges of personal pro- perty, mortgages of real or personal property, liens, judgments, warrants of attorney to enter up judg- ment whereon execution may be issued, decrees and stop orders on funds in Chancery. The discussion of the doctrines of mercantile in- struments belongs to a treatise on mercantile law, not to one upon equity. The contract of surety- ship is considered in the chapter on Frauds with respect to the information which in good faith a surety is entitled to. Here we only remark, that equity affords a more complete remedy when one 128 COMMEECIUM. of several sureties pays the debt than law. Thus, a bill filed against several sureties may be sustained. Where one becomes insolvent, contribution is en- forced against the others, and where one dies his representatives may be made to contribute. A Pledge or Pawn. " A pawn differs, on the one hand, from a lien, which conveys no right to sell whatever, but only a right to retain until the debt in respect of which the lien was created has been satisfied ; and, on the other hand, from a mortgage, which conveys the entire property of the thing mortgaged to the mort- gagee conditionally, so that when the condition is broken the property remains absolutely in the mortgagee; whereas a pawn never conveys the general property to the pawnee, but only a special property in the thing pawned, and the effect of a default in payment of the debt by the pawnor is not to, vest the entire property of the thing pledged in the pawnee, but to give him a power to dispose of it, accounting for the surplus; which power, if he neglect to use, the general property of the thing pawned continues in the pawnor, who has a right at any time to redeem it" (m). In the recent and instructive case of Donald v. Suckling, it was decided that a repledge does not determin,e the contract originally entered into. A. deposited debentures with B. as a security for the payment at maturity of a bill indorsed by A. and discounted by B., on the promise that B. should have power to sell or otherwise dispose of the (w) Coggs V. Barnard, 1 Sm. L. C, 4th ed. 169. MOKTGAGES. 129 debentures if the bill should not be paid when due. Before the maturity of the bill, B. deposited the debentures with C. to be kept by him as a security until the repayment of a loan from C. to B. larger than the amount of the bill. The bill was dis- honoured, and, while it still remained unpaid, A. brought detinue against C. for the debentures. The Queen's Bench held, by a majority of two, that the repledge by B. to C. did not put an end to the contract of pledge between A. and B., and B.'s in- terest and right of detainer imder it ; and that A. therefore could not maintain detinue without having paid or tendered the amount of the bill (w). The pledgor having a good remedy at law ought not to come into equity to recover his pledge. The rule is otherwise where the accounts are intricate, where discovery is wanted, or where the rights have been complicated by assignment. Mortgages. Mortgages are equitable or legal. An equitable mortgage is created by the deposit of deeds or mimiments of title with the intention of creating one. If the mortgaged property is a chose in action, notice should be given to the person liable. Such a mortgage of land may be made without any memorandum in writing, though the Statute of Frauds expressly enacts to the contrary (o). It amounts to an agreement to execute a conveyance, in) 1 Q. B. 585. (o) Kuasel ». Knssel, 1 Bro. C. C. 269. g5 130 COMMBECIUM. but the cases differ whether sale or foreclosure is the appropriate remedy. It would be an unwise thing to leave the evi- dence of such a transaction to vivt voce testimony. The deposit ought to be accompanied by a written memorandum, stating the consideration, a promise to pay the principal with interest, and to execute a legal mortgage with appropriate stipulations, and also creating an equitable charge till such execution. An equitable mortgagee should obtain possession of all the muniments of title, otherwise a fraudulent mortgagor may vest the right to the legal estate without notice in a purchaser for valuable conside- ration, who will then have priority. If the mortgagor become bankrupt, a sale will not be ordered without a special petition, the costs of which will not be allowed, unless the deposit was accompanied with a memorandum in writing. Such mortgages are undesirable except for tem- porary banking purposes, on the ground that they are postponed to prior equities not affected by negligence. Legal Mortgages. If the student will inspect the form of a legal mortgage, he will find that its first clauses pur- pose to convey the property on condition to recon- vey if the loan and interest are paid on the day agreed. This form was adopted, because for- merly, owing to feudal reasons, the land could not be charged with debts. The condition is called the proviso for redemption, concerning which we shall MORTGAGES. 131 speak hereafter more fully* Other clauses contain a covenant to pay principal and interest at a time and in manner specified. This calls for no remark. Covenants for title follow. These are usually un- restricted, differing in this from those in purchase deeds. Then follow clauses of comparatively recent introduction, called a power of sale, which are de- signed to enable the mortgagee to realize his se- curity by selling the property without resorting to a court of equity. By the agreement in Tapply v. Sheather (/>) it was recited, that the defendant was entitled to two leasehold farms, and that the plaintiff had lent to him a Certain sum and had agreed to make him further advances in consideration of the agreement thereinafter contained; and it was agreed that the said sum and such further sums as should be there- after advanced with interest should be repaid at the times therein mentioned ; but if default should be made in payment, the defendant agreed to assign to the plaintiff the leasehold farms for the residue of the terms without any further consideration, to- gether with the furniture, growing crops, Sec, at a valuation. The plaintiff agreed to pay the amount of such valuation, but the defendant refused to receive the same, alleging that the agreement was for a mortgage and not for a sale. L. C. "Westbury, in his judgment, said, the agreement did not contain the elements incident to a mortgage. In the first place there was nothing to indicate that the plaintiff was to have any (2;) J. (62), 1163. 132 COMMEECroM. security for his debt, nothing that denoted any contract for a security. If that contract existed, the rights of the mortgagee would arise to the plaintiff. But what rights of a mortgagee could his Lordship have given the plaintiff under that agreement? Could the court direct foreclosure or a valuation? Clearly not. But then it was said, that a valuation had been taken, but for what purpose was that valuation taken ? Why, for the purpose of a transfer of the property to the plain- tiff as owner, so that whether regarding the in- trinsic nature of the agreement or its intrinsic con- sequences it was incompatible with that which was incidental to a contract for a loan. The money which had been the subject of the loan had been converted into purchase-money, and the contract must be treated as one for purchase and not for a security for money. It created the relation of seller and purchaser, and not of mortgagor and mortgagee {q). Equity of Redemption. Until barred by lapse of time, generally twenty years, the mortgagor has a right to redeem his (j') When there is a doubt whether a deed is one of mortgage or conditional sale, the prima facie inference is that it is a mortgage. (1.) If the grantee pays what would be a grossly inadequate sum for the purchase. (2.) If the grantee does not enter immediately. (3.) If the grantee accounts for rents. (4.) If the grantor gires a collateral security, as a covenant, bond, judgment, or warrant of attorney. (5.) If the grantor pays the expense. In the case of a conditional sale, the repurchase must strictlv fulfil the condition. . MORTGAGES. 133 estate, though the day fixed for repayment is past, equity considering the agreement substantially per- formed on repayment of the loan with interest. On the other hand, lessees ought to pay the rents to the mortgagee, and without his consent fresh leases cannot be granted (r). If, however, the loan is not repaid on the day, the mortgagee may take posses- sion, or bring an action of ejectment, and an action on the usual covenant for repayment. Courts of Equity will not interfere with the simultaneous pursuit of the reinedies, as one alone might be in- sufficient. 7 Geo. II. c. 20, compels the mortgagee, if he bring an action on the covenant, to convey the property as mortgagor shall appoint, on pay- ment of the money, costs and interest. In the absence of any special contract {$), a mortgagee may file a bill for foreclosure any time after forfeiture and within twenty years, that is, a bill praying that the mortgagee may redeem his estate or be foreclosed. The decree, in the first in- stance, usually allows six months for redemption., The equity of redemption cannot be restricted, even by express agreement in the mortgage deed. But the maxim, once a mortgage always a mortgage, does not prevent a subsequent release of the right. If a mortgagee recover at law, but not all that is due, on a bill for foreclosure the decree will order an account including costs. An action of debt, after a decree of foreclosure, revives the right of redemp- (r) Keech v. Hall, 1 Smith's L. C, 4th ed. 440. (g) Stamford, SpsJding and Boston Banking Company i;. Ball, J. (62), 420. 134 COMMEECIUM. tion (t). And foreclosure and sale bars an action on a covenant for the residue. 15 & 16 Vict. c. 86, s. 48, makes it "lawful for the court in any suit for the foreclosure of the equity of redemption ia any mortgaged property, upon the request of the mortgagee, or of any sub- sequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, to direct a sale of such property instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct, and, if the court shall so think fit, without previously determining the priori- ties of incumbrances, or giving the usual or any time to redeem ; provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the court shall not direct any such sale without the consent of the mortgagee, or the persons claiming under him, unless the party making such request shall deposit in court a reason- able sum of money to be fixed by the court, for the ' purpose of securing the performance of such terms as the court may think fit to impose on the party making such request." Section 55 enacts : " If after a suit shall have been instituted in relation to any real estate it shall appear to the court that it will be necessary or expedient that the said real estate, or any part thereof, should be sold for the purposes of such suit, it shall be lawful for the said court to direct the (*) Lockhart v. Hardy, 9 Beav. 349. MORTGAGES. 135 same to be sold at any time after the institution thereof, and such sale shall be as valid to all intents and purposes as if directed to be made by a- decree or decretal order on the hearing of such cause, and any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or re- ceipt to the purchaser, or such other person as the court shall direct." A, sale was directed in Tulloch v. TuUoch (m), before the hearing, in order to protect the estate. Section 56. " Before any estate or interest shall be put up for sale under a decree or order of the Court of Chancery, an abstract of the title thereto shall, with the approbation of the court, be laid before some conveyancing counsel, to be approved by the court for the opinion of such counsel thereon, to the intent that the said court may be better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser or his solicitor shall be specified in the said conditions of sale." A first mortgagee filed a bill against the second and the representative of the mortgagor. On the request of the second a sale was ordered, the second paying 100/. into court to the credit of the cause. The first attempted to sell, but the attempt proved abortive. On his petition, Vice-Chancellor Stuart (u) 3 E. C. 574. 136 COMMEECIUM. made an order that the deposit be applied to indem- nify him for his costs (v). " Where a decree or order is made, whether in court or in chambers, directing any property to be sold unless otherwise ordered, the same shall be sold, with the approbation of the judge to whose court the cause or matter is attached, to the best purchaser that can be got for the same to be allowed by the judge, and all proper parties shall join in the sale and conveyance as the judge shall direct" (w). On a bill to realize a mortgage of personalty the usual order is for sale, not for foreclosure. An agreement that the mortgagee shall receive some advantage in addition to the interest is invalid ; the reason of the rule being that he is in a position to oppress the mortgagee : the question properly belongs to the chapter on Fraud, If necessary, however, for the welfare of the estate, an agent may be appointed and his salary charged. In West India mortgages the merchant used, as an additional security, to stipulate that consignments should be made to them. For receiving and disposing of the consignments they charged a percentage. This is now recognized in courts of equity. But the strict principle is enforced where the mortgagee is in possession. The maxim that equity follows the law is re- markably illustrated by its dealing with the equity of redemption. It is looked upon as land. As such it may be limited and dealt with, the mortgage («) Corsellls ». Patman, 4 E. C. 156. (m) Cons. Ord. xxxv., r. 13. . MORTGAGES. 137 being considered not an alienation but an incum- brance. The husband may be tenant hj courtesy, the wife by dower ; and if there is an intestacy it will descend to the heir. 17 & 18 Vict. c. 113, enacts that in the case of a mortgagor dying after 1854, and not having by his will or deed, or other document, signified any contrary or other intention, his equities of redemption are to descend, but to be liable for the mortgage debt. 30 & 31 Vict. c. 69, s. 1, enacts, that a general direction in a will that the debts, or that all the debts, of a testator shall be paid out of his personal estate shall not be deemed to be a declaration of an intention contrary to or other than the rule established by the foregoing act, unless such contrary or other intention shall be further declared by words expressly, or by necessary implication, referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate. A mortgagee can transfer his own or create a sub-mortgage. A mortgagor may in equity mort- gage or assign otherwise his equity of redemption. Persons claiming in priority of estate or of con- tract may exercise the corresponding rights de- volving upon them of foreclosure or redemption, but priority of right gives a preferable equity. Thus in Beevon v. Luck (a;), Vice-Chancellor Wood said, that if there are several owners of an equity of redemption holding not under the same instrument, the order of redemption follows the dates of their equities, and allowed six months to (») W. N. (67), 239. 138 COMMEECITJM. the first, then three to the second,- then three to the third cestui que trust. Simple contract credi- tors and legatees whose legacies are not charged on the land must sue for redemption by their trustees and executors (y). A third mortgagee of the land without notice of the second may, after notice, buy from the first the legal estate, and tack thereon his own debt in priority of ihe second. A judgment creditor can- not so tack (z). Where a wife's property is mortgaged, a proviso, for redemption by the husband will not affect her title. Though even here the maxim Modus et conventio vincunt legem may apply. In Scholefield v. Lockwood (a). Lord Chancellor Westbury said ; " It has long been settled in this court, that if the wife's estate be charged or pledged for debts of the husband she is entitled to have that estate exonerated. Originally, perhaps, it arose in the course of the court's administration of the hus- band's estate, the court giving the wife the benefit of the husband's contract or covenant to pay the money, and by virtue of that transfer of the legal right of ihe creditor giving the wife a claim against the hus- band's estate. But after some time the form of the doctrine assumed a different shape, and then we find the language introduced that the wife is to be regarded as a surety for the husband, and that in respect of such contract of suretyship she is entitled (y) Tronghton v. Binkes, 6 Vesey, 572. <2) Beavan v. Lord Oxford, ex relatione the writer, and 6 D., M. & G. 507. (a) J. (63), 1258. MOETGAGES. 139 to the ordinary remedies of a surety, namely, to have the debt of the principal thrown upon the property of tiie principal. " It is an extraordinary instance of the power assumed by this court (which is exemplified in many other instances) of completely superseding and set- ting aside the common law by the exercise of what was little less than legislative authority ; because the common law says that there can be no contract between the husband and wife except through the medium of a tiiird person ; but this court upon the transaction alone, without any evidence of any agreement, creates a contract of suretyship between the husband and wife, and proceeds upon that basis to give the wife as against the husband the benefit of that contract. It was an extraordinary thing to do originally, but it has been done and settled, and therefore we must abide by it." When a reversioner pays oflFa charge, an intention is presumed, in the absence of contrary circum- stances, that it is to continue. When a tenant for life does so, the presumption is otherwise. The owner of a particular estate must keep the interest down. If by agreement with a mortgagee part of an estate is sold the tenants will be entitled to their particular estates in the other parts. If a tenant for life leaves interest in arrear the remainderman may bring a suit against the personal representative. If there are two tenants for life, the remainderman cannot compel the second to devote his profits to pay arrears of interest. 140 COMMEECIUM. " A power to raise money by sale or mortgage, or both or either of those ways, authorizes a mort- gage with a power of sale {b). Yet trustees, or a body actiag under delegation with a simple power to mortgage, cannot give to a mortgagee a power to sell (c). But unless the operation of the statute is prevented by express declaration a mortgagee inay, in the cases of default enumerated in the statute, sell the estate under 23 & 24 Vict. c. 145" (d). The two first propositions of the preceding para- graph contaia views which have given rise to much Controversy. Acquiescing, however, in the law as stated by Lord St. Leonards, we proceed to Lord Cranworth's statute, 23 & 24 Vict. c. 145, im- portant with respect both to powers of sale and other powers. 23 & 24 Vict, c, 145 contains the following im- portant enactments: — Sect. 11. Where any prin- cipal money is secured or charged by deed on any hereditaments of any tenure, or on any interest therein, the person to whom such money shall for , the time being be payable, his executors, adminis- trators and assigns, shall at any time after the expiration of one year from the time when such principal money shall have become payable accord- ing to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any pre- mium on any insurance which by the terms of the deed ought to be paid by the person entitled to the (i) Bridges v. Longman, 24 Bear. 27. (c) Clarke. «. Royal Panopticon, 4 D. 26. (d) Powers, 8th ed. 425. MORTGAGES. 141 property subject to the charge, have the following powers to the same extent (but no more) as if they had been in terms conferred by the person creating the charge, namely — (1). A power to sell or concur with any other person in selling the whole or any part of the property by public auction or private contract, subject to any reasonable conditions he may think fit to make, and to rescind or vary con- tracts for sale, or buy in and resell the property from time to time in like manner. (2). A power to insure and keep insured from loss or damage by fire the whole or any part of the property (whether affixed to the freehold or not) which is in its nature insurable, and to add the premiums paid for any such insurance to the principal money secured at the • same rate of interest. (3). A power to appoint or obtain the ap- pointment of a receiver of the rents and profits of the whole or any part of the property in manner hereinafter mentioned. Sect. 12. Receipts for purchase-money given by the person or persons exercising the power of sale hereby conferred shall be sufficient discharges to the purchasers, who shall not be bound to see to the application of such purchase-money. In Elliot V. Merryman (e), the Hon. J. Vemey, M.R., held that if a trust directs that land be sold for the payment of debts generally the purchaser is not bound to see that the money be rightly applied. (e) Baniardiston's Ch. Rep. 78. 142 COMMEECnjM. On the other hand, if the trust directs that lands be sold for the payment of certain debts, mentioning in particular to whom those debts are owing,, the purchaser is bound to see that the money be applied for payment of those debts. For a discussion of the old law, and the law in- dependent of the recent statutes, the reader is re- ferred to the learned note appended to Elliot v. Merryman in 1 White & Tudor's Leading Cases in Equity, 2nd ed. p. 50, and the succinct and masterly view of Lord St. Leonards in his work on Vendors and Purchasers, 13th ed. ch. xviii. Sect. 13. No such sale as aforesaid shall be made until after six. months' notice in writing given to the person 'or one of the persons entitled to the property subject to the charge, or affixed on some conspicuous part of the property ; but when a sale has been effected in professed exercise of the powers hereby conferred, the title of the pui'ohaser shall not be liable to be impeached on the ground that no case had arisen to authorize the exercise of such power, or that no such notice as aforesaid had been given ; but any person damnified by any such un- authorized exercise of such power shall have his remedy in damages against the person selling. Sect. 14. The money arising by any sale effected as aforesaid shall be applied by the person receiving the same as follows : — first, in payment of all the expenses incident to the sale, or incurred in any attempted sale ; secondly^, in discharge of all interest and costs then due in respect of the charge in consequence whereof the sale was made ; and. MOBTGAGES. 143 thirdly, in discharge of all the principal monies then due in respect of such charge ; and the residue of such money shall be paid to the person entitled to the property subject to the charge, his heirs, executors, administrators, or assigns, as the case may be. Sect. IS. The person exercising the power of sale heareby conferred ehall have power by deed to convey or assign to and vest in the purdiaser the property sold, for all the estate and interest therein which the person who created the charge had power to dispose of, except that in the ease of copyhold hereditaments the beneficial interest only shall be conveyed to and vested in the purchaser ,by such deed. Sect. 16. At any time after the power of sale hereby conferred shall have become exerciseable, the person entitled to exercise the same shall be entitled to demand and recover from the person entitled to the property subject to the charge, all the debts and documents in his possession or power relating to the same property or to the title thereto, which he would have been entitled to demand and recover, if the same property had been conveyed, appointed, surrendered, or assigned to, and were then vested in him, for all the estate and interest which the person creating the charge had power to dispose of; and where the legal estate shall be out- standing in a trustee, the person entitled to a charge created by a person equitably entitled, or any purchaser from auch person, shall be entitled to call for a conveyance of the legal estate to the same 144 COMMEBCIUM. extent as the person creating the charge could have called for such conveyance if the charge had not been made. Sect. 17. Any person entitled to appoint or ob- tain the appointment of a receiver as aforesaid may, from time to time, if any person or persons has or have been named in the deed of charge for that purpose, appoint such person or any one of such persons to be receiver, or if no person be so named, then may by ■writing delivered to the person or any one of the persons entitled to the property subject to the charge, or aiExed on some conspicuous part of the property, require such last-mentioned person or persons to appoint a fit and proper person as receiver ; and if no such appointment be made within ten days after such requisition, then may in writing appoint any person he may think fit. Sect. 18. Every receiver appointed as aforesaid shall be deemed to be the agent of the person en- titled to the property subject to the charge, who shall be solely responsible for his acts and defaults, unless otherwise provided for in the charge. Sect. 19. Every receiver appointed as aforesaid shall have power to demand and recover and give efiectual receipts for all the rents, issues and-pro- fits of the property of which he is appointed receiver, by action, suit, distress, or otherwise, in the name either of the person entitled to the property subject to the charge, or of the person entitled to the money secured by the charge, to the full extent of the estate or interest which the person who created the charge had power to dispose of. MORTGAGES. 145 Sect. 20. Every receiver appointed as aforesaid may be removed by the like authority, or on the like requisition, provided with respect to the original appointment of a receiver, ' and new receivers may be appoioted from time to time. Sect. 21. Every receiver appointed as aforesaid shall be entitled to retain out of any money received by him, in lieu of all jcosts, charges and expenses whatsoever, such a commission, not exceeding 51. per centum on the gross amoimt of all money re- ceived, as shall be specified in his appointment ; and if no amount be specified, then 51. per centum on such gross amount. Sect. 22. Every receiver appointed as aforesaid shall, if so directed in writing by the person entitled to the money secured by the charge, insure and keep insured from loss or damage by fire, out of the money received by him, the whole or any part of the property included in the charge (whether affixed to the freehold or not) which is ia its nature insurable. Sect. 23. Every receiver appointed as aforesaid shall pay and apply all the money received by him in the first place in the discharge of all taxes, rates and assessments whatsoever, and in payment of his commission as aforesaid, and of the premiums on the insurances, if any ;. and in the next place in pay- ment of all the interest accruing due in respect of any principal money then charged on the property over which he is receiver, or on any part thereof, and, subject as aforesaid, shall pay aU the residue of such money to the person for the time being entitled to 146 COMMEECIUM. the property subject to the charge, his executors, administrators, or assigns* Sect. 24. The powers and provisions contained in this part of this Act relate only to mortgages or charges made to secure money advanced or to be advanced by way of loan, or to secure an existing or future debt. Of the clauses of the Act which relate generally (1) to powers of trustees for sale, &c., and trustees of renewable leaseholds; (2) to mortgagees; (3) to investment of trust funds, appointment and powers of trustees and executors, every one is im- portant in its relation to mortgagees. They are as follow : — Sect. 31. For the purposes of this Act a person shall be deemed to be entitled to the possession or to the receipt of the rents and income of land or personal property, although his estate may be charged or incumbered, either by himself or by any former owner or otherwise howsoever, to any ex- tent; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and iur come as aforesaid!, unless they shall concur therein. Sect. 32. None of the powers or incidents here- by conferred or annexed to particular offices, estates or circumstances shall take effect or be exercise- able if it is declared in the deed, will or other instrument creating such offices, estates or circum- stances that they shall not take effect ; and where there is no such declaration, then if any variations or limitations of any of the powers or incidents MORTGAGES— LIEN. 147 hereby conferred or annexed are contained in such deed, will or other instrument, such powers or in- cidents shall be exerciseable or shall take effect only subject to such variations or limitations. Sect. 33. Nothing in this Act contained shall be deemed to empower any trustees or other persons to deal with or affect the estates or rights of any persons soever, except to the extent to which they might have dealt with or affected the estates or rights of such persons if the deed, will or other in- strument under which such trustees or other persons are empowered to act had contained express powers for such trustees or other persons so to deal with or affect such estates or rights. Sect. 34. The provisions contained in this Act shall (except as hereinbefore otherwise provided) extend only to persons entitled or acting under a deed, will or codicU, or other instrument executed after the passing of this Act, or under a will or codicil con- firmed or revived by a codicil executed after that date. Lord St. Leonards remarks that there is nothing in the foregoing sections to which the words in the parenthesis can refer (/). Lien. A Men is the right of retaining land or goods until a certain claim is satisfied. "It is clear," said Lord Kingsdown, "that if a trustee incurs expenses in the execution of his trust he is entitled to retain them out of the trust pro- perty. If an agent makes a contract on behalf of his principal, whether with or without authority, if) Powers, ch. 19, s. 2, § 11. h2 148 COMMEBCIUM. the principal cannot at once approbate and repro- bate ; lie must adopt it altogether or not at all ; he cannot, at the same time, take the benefit which it confers and repudiate the obligation which it im- poses {g). A vendor's lien for unpaid purchase-money, and a solicitor's lien on his client's papers or fimd ia court, are ever recurring in courts of equity. For a discussion of the former the student is re- ferred to the chapter on Constructive Trusts, Sec- tion III. p. 62, To the latter we now invite his attention. There being no privity of contract between the country attorney's client and the town agent, if the client pay the bill of the country attorney without notice of the claim of the agent, the latter has no lien. The lien is subordinate to equities of third persons. A solicitor agreed to carry on the business of his clients till the hearing of the cause, without their supplying funds. A decree was made. The de- fendants appealed. The solicitor said he should allow the appeal to go by default unless funds were supplied. Another solicitor consenting to act, Vice-Chancellor Kindersley made an order for the delivery of the papers without prejudice to the first solicitor's lien, on the undertaking of the other to restore them when the appeal was disposed of (Ji). The bankruptcy of the solicitor discharges his client; the bankruptcy of the client, if the assignees do not employ his solicitor, discharges the solicitor. ' (jr) Bristow ». Whitmore, J. (62), 297. (K) Webster v. Le Hunt, The Times, July 12, 1861. LIEN — JUDGMENTS. 149 One of a firm of solicitors was a partner in a trading firm which became bankrupt (i). Lord Eomilly held on principle that the Uen continued. As the common order to tax does not affect a lien on papers for costs not within the order {j), so it does not bar a foreclosure of a mortgage to secure costs. The lien on a fund in court is confined to costs in or connected with the 'suit. It is not lost by issuing a capias satisfacere (k). It extends to alimony ordered by the judge ordinary (Z). The town agent's lien is subordinate to the right of a party to costs, but it has priority over that of the country solicitor, and it is independent of the client's interest (m). Judgments, The history of the law of judgments, so far as they affect hereditaments, is thus succinctly sketched by Lord Chancellor Westbury («). " The lien of a judgment in a superior court of common law was created by the statute of West- minster in the time of Edw. I. (o). It gave the writ of elegit, and, by a somewhat violent construc- tion of that statute, the lien of a judgment was held to affect aU lands which the debtor had at the time of the judgment, or which he acquired at any time during the pendency of the judgment, notwithstand- (i) In re Moss, 2 B. C. 345. Cj) Thomas v. Cross, J. (164), 1163, L. C. W. (k) O'Brien «. Lewis, J. (63), 620, V.-C. S.; L. J. 764. h) Bremner's case, 1 P. & D. 254. (m) Haynes v. Cooper, J. 64 (2), 26, M. R. ; Bailey v. BirchaU, J. (65), 57, V.-C. "W. in) Nortcliffe v. Warbiirton, J. (62), 855. lo) 13 Edw. L c. 18. 150 gOMMEECIUM. ing the alienation of those lands to a purchaser. The only alteration of the law was the necessity of docketing judgments, which was introduced by the statute 4 & 5 Will. & Mary, c. 20 ; so the law stood, giving a right to affect the moiety of the lands of the judgment creditor, till the passing of the stat. 1 & 2 Vict. c. 110. That altered the law materially. It gave to a judgment creditor, on certain conditions, the right to extend and take the whole of the lands, and it placed the decrees of the court of equity on an equal footing with a judgment of a court of law. With the effect of judgments at the common law our present work is not concerned, 1 & 2 Vict. c. 110, s. 13, enacts, that every judg- ment creditor shall have such and the same remedies in a court of equity, against hereditaments or any interest at law or equity therein, as he would be entitled to in case the debtor had power to charge, and had by writing agreed to charge, the property with the amount of the judgment debt and interest thereon. Previously to this Act the creditor had only a lien, and that on only a moiety of the lands, and he could obtain no assistance in equity without suing out an elegit therein [p). The same section then provides that no judgment creditor shall be entitled to proceed in equity to obtain the benefit of such charge, until after the expiration of one year from the time of entering up such judgment, nor shall such charge operate (,p) 13 Edw. I. St. 1, c. 18. JUDGMENTS. ' 151 to give the judgment creditor any preference in case of the bankruptcy of the debtor, unless entered up one year at least before the bankruptcy; Nevertheless proceedings to protect the property may be taken within a year (q). The same section also provides that the doctrine of courts of eq^uity, whereby protection is given to purchasers for valuable consideration without notice, shall not be altered or affected. Sect. 14 enacts, that stock and shares in public funds and public companies, belonging to the debtor and standing in his own name, in his own right or in the name of any person in trust for him, may be charged by an order of a judge of a superior court at Westminster with the payment of the amount for which judgment is recovered and interest there- on ; and such order shall entitle the creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the debtor : provided that no proceedings shall be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order. Semble a court of equity will not charge monies invested in the name of the Accountant-General (r), though a stop-order may be obtained, and that within the six months (*). Sect. 18 enacts, tibat all decrees and orders of courts of equity, and all rules of courts of common law, and all orders of the Lord Chancellor or of (a) Partridge v. Foster, J. (64), 741, M. E. ^) Miles V. Presland, 2 Beav. 300; In re Nowell, J. (63), 512. («) Walls V. Jeffyres, 3 M. & G. 372. 152 COMMEECIUM. the Court of Review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money or any costs, charges or expenses shall be payable to any person, shall have the effect of judgments, with analogous remedies in their respective judicatures. An Act of "Will. & Mary, the present Acts 2 & 3 Vict. c. 11, 3 & 4 Vict, c, 82, 18 & 19 Vict. c. 15, provide for the protection of purchasers, mortgagees, and creditors, by requiring that judgment be regis- tered and re-registered every five years. 22 & 23 Vict, c, 35, s. 11, enacts, that the release from a judgment of part of any hereditaments charged therewith shall not affect the validity of the judgment as to the hereditaments remaining unreleased, or as to any other property not specifi- cally released, without prejudice, nevertheless, to the rights of all persons interested in the heredita- ments or property remaining unreleased and not concurring in or confirming the release. Sect. 22 makes it obligatory on the Crown to register, in order to bind the lands, tenements or hereditaments of its debtors or accountants as against purchasers, mortgagees or creditors, be- coming such after 31st December, 1859. 23 & 24 Vict. c. 38, s. 1, makes the issue and registration of a writ of execution requisite in order that the judgment may affect a purchaser for value or a mortgagee, and the execution must be enforced within three calendar months from time of registra- tion. Sect. 2 regulates the mode of registering at the Common Pleas. JUDGMENTS. 153 Sects. 3 and 4. Unregistered or unre-registered judgments are not to have a preference as against heirs, executors or administrators in the distribu- tion of the estate they represent. These two sections were necessary, owing to an inadvertency in the repeal of the Act of William & Mary (<). 27 & 28 Vict. c. 11?. — This statute, after reciting in the preamble that it is desirable to assimilate the law aflfecting freehold, copyhold and leasehold estates to that affecting purely personal estates in respect of future judgments, statutes and recog- nizances, enacts. Sect. 1. No judgment, statute or recognizance to be entered up after the passing of this Act shall affect any land (of whatever tenure), until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pur- suance of such judgment, statute or recognizance. Sect. 3. The writs are to be registered in the name of the debtor. Sect. 4. Every creditor to whom any land of his debtor shall have been actually delivered in execu- tion by virtue of any such judgment, statute or recog- nizance, and whose writ or other process of execu- tion shall be duly registered, shall be entitled forth- with, or at any time afterwards while the registry of such writ or process shall continue in force, to obtain from the Court of Chancery, upon petition (f) Walter v. Turner, J. (64), 147 ; Kemp n. Waddingham, 1 Q. B. 355. h5 154 COMMEECIUM. in a summary way, an order for the saile of his debtor's interest in such land, and every such peti- tion may be served on the debtor only ; and there- upon the court shall direct all such inquiries to be made as to the nature and particulars of the debtor's interest in such land and his title thereto as shall appear to be necessary or proper ; and in making such inquiries and generally in carrying into effect such order or sale, the practice of the said court with respect to sales of real estates of deceased per- sons for the payment of debts shall be adopted and followed as far as the same may be found conve- niently applicable. Sect. 5. If it shall appear on making such in- quiries that any other debt due on any judgment, statute or recognizance is a charge on such land, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) shall be served with notice of the said order for sale, and after such service be bound thereby, and shall be at liberty to attend the pro- ceedings under the same and to have the benefit thereof; and the proceeds of such sale shall be dis- tributed among the persons who may be found en- titled thereto, according to their respective priorities. Sect. 6, Every person claiming any interest in such land through or under the debtor, by any means subsequent to the delivery of such land in execution as aforesaid, shall be bound by every such order for sale and by all the proceedings consequent thereon. An order for sale of a railway's superfluous lands JUDGMENTS— ADMINISTEATION. 155 was made in Grardner v. London, Chatham 8s Dover Bailway Company (m), Admnisteation of the Estate of a Deceased Person. In our survey of equity jurisprudence we here come to a title which would be more properly dis- cussed in an indepelident treatise, comprehending the common law powers of executors and adminis- trators and the Probate Court practice. Having called attention to the fragmentary character of the present chapter, we proceed to consider, I. The property or estate to be administered. II. The officers who administer, their title, duties, and powers. I. The property. The English law allows the owner of property, real or personal, to direct by will or last testament the devolution thereof after his death, with even greater facility than he can during his life. Since, however, a person must be just before he is generous, all the liabilities, legal and equitable, of the deceased, must be satisfied out of some portion of his property. Formerly the liability of the heir was not co-extensive with that of the ancestor. For debts of record, such as judg- ments and deeds in which he was named, the heir was liable so far as sufficient property (from the French word assez, sufficient, called assets) de- scended to him. 29 Car, II. c. 3, makes a fee simple («) 2 C. A. 385. 156 COMMEECIUM. descending from a cestui que trust assets, 3 & 4 Wm. & Mary, c. 14, and 11 Geo. IV. & 1 WUl. IV. c. 47, makes devisees liable to be charged in the same manner as, and jointly with, the heir ; and entitles a creditor, bringing an action at law for that purpose, to make the devisee a joint defendant with the heir, or to sue the devisee alone where there is no heir liable. The devisees of an equit- able estate are within the statute, and an alienee with notice is bound, and a conveyance to new trus- tees is no bar («). 3 & 4 Will. IV. c, 104, consolidating previous enactments, makes the descending or devised realty of traders liable for simple contract debts, and the realty of every person, if not charged with or de- vised subject to the payment of debts, assets to be administered in courts of equity at suit of the cre- ditors for payment of debts, as well simple contract as specialty. A proviso is added that all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them, before any of the creditors by simple contract, or by spe- cialty, in which the heirs are not bound, shall be paid any part of their demands. The personal re- presentative of an intestate cannot file the bill (t). The property is g,pplied in payment of debts in the following order, imless a testator has manifested a contrary intention : — (1.) The personal property. (2.) Real estate devised for payment of debts. (s) Coope V. Cresswell, 2 C. A. 112. (*) Catley v. Sampson; J. (64), 993. ADMINISTRATION OF THE ESTATE, ETC. 157 (3.) Real estate in the hands of the heir. (4.) Devises charged with debts. (5.) General pecuniary legacies and residuary devises (m). (6.) Specific legacies and devises not charged with debts. (7.) Personalty, and, since 3 & 4 Will. IV. c. 104, realty actually appointed under a general power. (1.) 17 & 18 Vict. c. 113, creates an exception to the primary liability of the personal estate, by enacting that, as between persons claiming through or under a deceased person land or hereditaments charged with a debt, su) 2 H. L., E. & I. 325. Iq) Waters v. Earl of Shaftesjbvuy, 2 C. A. 236. (r) Powers, 8th ed. 606. 184 FEAUD. lent, and will enable equity to relieve. It would be difficult to draw the precise line between the jurisdiction of law and equity on this head. The sub- stantial ground upon which equity maintains almost an exclusive jurisdiction in cases of fraud is, that it is enabled to mould and cut down the fraudulent instrument according to good conscience ; whereas a court of law, if it take cognizance of the subject, must entirely defeat the instrument; it cannot maintain the execution as far as it is within the meaning of the power, and set it aside so far only as it is a fraud on the authority. Instruments executing Powers, In the important case of Lady Mary Topham v. The Duke of Portland (s), Komilly, M.E., stated that there are four classes of cases which, if estab- lished by evidence, vitiate the execution of the power. The first, when the donee appoints to the object of the power with the purpose of gaining a personal pecuniary benefit himself, such as that of a father appointing to a dying infant child, in order that he may, as next of kin, take the fund on the death of the intestate child. The second is where the instrument executing the power gives the appointee the property coupled with a condition expressed on the fape of the instrument, which con- dition, if complied with, would efiiect an object plainly foreign to the purposes for which the power was intended. The third is where the donee of the (s) Ex relatione of the wijter, and J. (62), 1083, M. E.: May 12, 1863, L. J., J. (64); 501, H. L. INSTEUMENTS EXECUTING POWERS. 185 power and the appointee agree that, if the appoint- ment be made, the appointee will deal with the fund appointed, or with a portion of it, ia a manner foreign to the purposes for which the power was intended. The fourth is where the discretion is transmitted to be exercised according to contingen- cies. Delegatus non potest delegare. On appeal to the House of Lords, it was held that, where a father having a general power of appointment in favour of his children, in order to prevent the marriage of one of his daughters with Sir W. T., appointed her share to one of his sons, upon trust for the daughter as the son should appoint; and in default of ap- pointment upon trust for the benefit of the son ; in confidence that the son would act in accordance with the wishes of the father, so that if the daughter married Sir "W. T. she should not enjoy the ap- pointee's fortune; the appointment was a fraud upon the power and void. A further illustration of the first class of cases is furnished by Eland v. Baker (t). Property was settled on husband, wife and children, with power of revoking and new appointing the uses evidently for the benefit of all the cestuis que trust. A sum of money having been lent to the father, the property was appointed to the mortgagee. Sir J. Romilly held that the appointment being fraudulent, the mortgagee could not make a good title to a pur- chaser under a power of sale in the mortgage deed. Where an unlawful condition is annexed, the (<) J. (61), 956. 185 FRAUD. gift is good and the condition void (u). If we refer to Lord St. Leonards' masterly work on Powers for prior cases, we shall find that appointments to a child likely to die, or for payment of a father's debts, or to a particular child on a bargain with the mother, she postponing her pin-money to let in a charge by the father, have been held bad. Respecting wills, we find authority to prove that a legacy given to a person only on account of an assimied character, and not from motives of affection, is void. Thus in Kennell v. Abbott (w), a legacy from a woman to a man who had sustained the character of her husband, while his wife was still living, was held void. But where a bill alleged that certain slanders fraudulently made against the plaintifif's character had induced the testator to re- voke certain legacies, it was held that the court had no jurisdiction, the probate having concluded the question (w). As no instrument fraudulently obtained can pre- vail, so no valid instrument which effectually con- veys property can lose its effect, merely by reason of its fraudulent cancellation or destruction (x), II. Passing from contracts generally and instru- ments, we find that-— Insurance. In the particular contract of insurance, where the insured usually possesses alone material infor- («) JeafEreson's trusts, 2 E. C. 276, V.-C. "Wood. (v) i Ves. 802. (w) Allen V. Macpherson, 1 Phillips, 133. (x) Donaldson v. Gillott, 3 E. C. 277. SALE— SALE BY AUCTION. 187 mation, uberrima fides is required (y). The com- mon law having adopted this rule in times past has preserved to its own jurisdiction this important branch of commercial law. The effect of with- holding material facts is to vitiate the contract. Sale-^- Sale hy Auction. In contracts for saie the maxim caveat emptor is the rule of the courts ; ralndom praise without a warranty, though the statement be false in fact, do not entitle to relief. Aliud tacere aliud est celare : while reticence, if there be no abuse of con- fidence, is no ground for relief, a ground of relief is ofiered by industrious concealment. The presence of a single puffer at a sale by public auction is, according to the Court of Com- mon Pleas, clearly some evidence of fraud (2). This proposition few moralists will deny. Yet " the usage of the Court of Chancery, in modem times at all events," says L. C. Cranworth (a), " is to stipulate expressly for the right not to sell under a fixed price, and so by implication to have the right to employ a person to bid up to that price." The rule is now settled by the Sale of Land by Auction Act, 1867, which orders(l) " That from and after the passing of the Act, whenever a sale by auction of land would be invalid at law, by reason of the employment of a puffer, the same shall be deemed invalid in equity as well as at law. ly") Carter' 1). Bochen, 3 Bur. 1906, and 1 Smith's L. C. {%) Green v. Baverstook, J. (64), 47. (a) Mortimer v. Bell, J. (65), 898; L. B., 1 C. A. 10. 188 FRAUD, (2) That the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve or subject to a reserved price, or whether a right to bid is reserved ; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowiagly any bidding from any such person. (3) Where any sale by auction of land is declared, either in the particulars or conditions of such sale, to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such auction, in such manner as he may think proper. Purchase of Reversionary Interests. Inadequacy of price or of interest sold is in the absence of distress, mistake or fraud, no ground for cancelling a conveyance ; and where the price of a reversionary or contingent interest is reasonable at the time of the contract, though totally inadequate on the accruing of the event, the vendor can enforce his contract in equity. Still persons dealing with reversionary interests, and heirs dealing with expectancies, are very likely to be imposed upon ; the court, therefore, throws upon the purchaser the necessity of proving, if the transaction be impeached, the reasonableness of the price. In Edwards v. Burt (5), the Court of Appeal in Chancery refused to act on the opinion of an actuary. Vice-Chancellor Stuart considered (J) 2 D., M. & G. 36. PURCHASE OF REVEESIONAKT IJiTTEEESTS. 189 this decision (c) as opposed to the understanding of every lawyer and man of common sense. Cam- bridge mathematicians and London actuaries may perhaps agree with this opinion ; but rules founded on average may, as remarked by Lord Cotten- ham(rf), apply with great injustice in a variety of individual cases. The life may be an extraordi- narily good or an exteaordinarily bad one. Thus we find insurance offices testing each life by a special medical examination. Still all that is required is a fair or reasonable price, but no price can with safety be considered reasonable which was not given at a properly conducted public auction, In all cases evidence of the bona fides should be preserved. It has recently been enacted by 31 Vict. c. 4, (1) That no purchase made bona fide, and without fraud or unfair dealing, of any reversionary interest in real or personal estate, shall hereafter be opened or set aside merely on the ground of undervalue ; (2) That the word " purchase" in this Act shall include any kind of contract, conveyance or agreement under or by which the beneficial interest in any kind of property may be acquired. In post-obit securities not only is there likely to be weakness on the one side, and usury on the other, but also extortion or advantage taken of that weak- ness ; — and with these there frequently concur de- ceit and illusion on other persons not privy to the fraudulent agreement. The father, ancestor or re- lation, from whom was the expectation of the estate, (c) Willonghby ■». Brideoake, J. (G5), 624. (), quoted with approval the rule laid down in Roper on Husband and Wife, that " decep- tion is inferred, if, after the commencement of the treaty for marriage, the wife attempted to make any disposition of her property without her in- tended husband's knowledge." At one time it was supposed that such a settlement by a widow upon her children by a former marriage was good. This is not borne out by recent authority (5'). III. "We now proceed to consider fraud in par- ticular relationships involving confidence. This, in many books, is considered under the head of volun- tary gifts. But it may affect purchases of estates at inadequate prices or mortgages to secure bills which were never due. In our chapter on Trusts, we said that a court of equity does not offer any assistance to render effectual a voluntary gift unless as a trust. We (0) Countess of Strathmore «. Bowes, 1 Ves. jun. 22. (i>) J. (65), 277. (j) Downea v. Jennings, M. E., J. (68), 1264. CONFIDENTIAL RELATIONSHIPS. 195 shall now see that a voluntary gift, complete so far as formalities are concerned, frequently will be set aside in equity on the ground of undue influ- ence exercised by the donee over the donor. A voluntary gift may be made to a friend or, relation, who stands not in any confidential re- lationship, as an attorney. In such a case, unless there is actual fraud,' the gift is valid. In Cooke V. Lamotte (r), however. Sir J. Romilly, departing somewhat from the ruling of Lord Brougham in Hunter v. Atkyns(s), considered that the onus probanda, that the donor knew what he was doing, lay on the donee, while in confidential relationships the additional onus was imposed of showing how the intention of the donor was produced ; the court from the relation inferring the probability of the abuse of the influence. Such are the relations of counsel, religious director, guardian, parent, trus- tee or attorney. Religious Director, The case of the religious director seems to be as old as the days of the scribes and pharisees, who de- voured widows' houses. The instances in our law reports are not numerous. One of the most remark- able, as well as most useful, for its clear statement of the law, is Nottidge v. Prince {t). Louisa J. Nottidge, in 1845, went to reside at W., in order to be near the defendant, and to place herself under M 15 Beav. 234. (S) 3My.&K. 113. (t) J. (60), 1067. k2 196 FEAUD. his religious teachings. The defendant had held two curacies in the Church of England, but had been deprived of his licences on the ground of irre- gularities, and, subsequently to such deprivation, had become the head of the Agapemone, in which establishment Miss Nottidge and three of her sisters had become residents. She was taken from the Agapemone, and upon medical certificate placed in a lunatic asylum, but after eighteen months was liberated by the commissioners in lunacy, who cer- tified that she was stiU of unsound mind on the subject of religion, but had no other indications of insanity; also that her bodily health was giving way, and might be seriously injured by prolonged confinement. The delusion was that the tabernacle of God was upon earth ; that Nottidge the defen- dant was tha.t tabernacle ; and that the spirit of God dwelt in him, his original spirit being extinct. Im- mediately after her release from the asylmn she returned to the Agapemone, and shortly afterwards transferred a siun of 3/. per cent, annuities (the whole of her property) into the defendant's name, but, as alleged by the defendant, without solicita- tion on his part and without his knowledge. In delivering his judgment Vice-Chancellor Stuart said — "Where a gift is made under the influence of delusion or deception, it cannot be valid. Whether the delusion relates to matters spiritual or matters temporal is immaterial. The strength of religious influence is far beyond that of gratitude to a guardian, trustee or attorney ; and the sajme ground of public utility which requires KELIGIOUS DIEECTOK. 197 this court to guard against such influences has its most important application to that influence which is the strongest. In Roman Catholic countries, where spiritual influence has its highest dominion, public feeling has required the interposition of an absolute and imperative check. The law of France, as stated by M. Pothier, absolutely prohibits not only all gifts by a penitent to His confessor, but all gifts to that religious community of which the con- fessor is a member." The decree made was to the efiect that the stock be transferred to the plaintiff, as the legal personal representative of Miss Louisa Jane Nottidge, and that all the dividends which had accrued due on it since her death be paid to the plaintiff. In Metcalfe's "Will (m), where E. became a nun, and went into a convient in France, and assigned all her property to trustees for the benefit of a Roman Catholic congregation, the Lords Justices held that she was not civiliter mortua, so that she was incapacitated from dealing with her property ; and differing herein from the Master of the Rolls, that the relationship did not create a presumption of undue influence, and accordingly that trustees of a will under which she claimed were not justifled in paying the fimd into court, but that on her petition payment out was to be made ac- cording to her wishes to trustees for the congrega- tion. In the judgment of Lord Justice Bruce occurs the following passage : — " To say that a («) J. (64), 287. 198 • FRAUD. lady is not to deal with her property, because, though in the full possession of her senses, she is supposed, and perhaps supposed with great proba- bility, to be under an influence which will direct her to the application of it in a manner which those, who have to adjudicate upon the case, may think unwise, — to suppose therefore that she is not to be trusted with her property is to act with a view of the powers of English courts of justice which I do not think that they possess. Guardian and Ward. This relationship gives the guardian an advantage over his ward in three ways : (1) In the confidence which a young and unsuspecting person places in apparent integrity ; (2) In superior general and special knowledge ; (3) In the influence which may be derived from improper indulgence. For each of these reasons, as well as on the ground of public utility, to prevent improper indulgence, purchases and gifts, while the relationship or its influence continues, are set aside. The general doctrine is succinctly summed up by Lord Chancellor Eldon in Hatch v. Hatch (y). " The case proved," said the Lord Chancellor, " the wisdom of the court in saying it is almost impossible in the course of the connexion of guardian and ward, attorney and client, trustee and cestui que trust, that a transac- tion shall stand purporting to be bounty for the execution of antecedent duty. There may not be (t-) 9 Vesey, 292, cited by V.-C. S. GUABDIAN AND WARD. 199 a more moral act, one that would do more credit to a young man beginning the world, or afford a better omen for the future, than if a trustee having done his duty, the cestui que trust, taking it into his fair, serious and well informed consideration, were to do an act of bounty like this. But the court cannot permit it, except quite satisfied that the act is of that nattire for the reason often given, and re- collecting that in discussing whether it is an act of rational consideration, an act of pure volition uninfluenced, that inquiry is so easily baflled in a court of justice, that instead of the spontaneous act of a friend uninfluenced, it may be the impulse of a mind misled by undue kindness or forced by oppression." Gifts from children to parents are looked upon in the same light (w). Gifts contrary to the in- tention of a deed creating powers have been already noticed. Cases involving such gifts must not be con- fused with family settlements or arrangements, nor with those cases in which the courts allow property given to the children, and for their maintenance, to be paid to poor parents. And so Lord Justice Turner, in Baker v. Bradley (a:), laid down the rule that on a child coming of age, if he or she makes a settlement of his or her property for the benefit of the family, in which the father or mother gets no benefit at all, the court will not inquire into the degree of infiu- (n) Davies ». Davies, V.-C. S., J. (63), 1002. (as) 7 D., M. & G. 597; cited in Chambers v. Crabbe by M. E.^ J. (65), 277. SGO PKAUD; ence, but consider it for the benefit of the family ; but if it is tainted with the slightest advantage to the parent, who induces the child to enter into the transaction, the whole thing is bad, unless it can be proved not merely that the child knew what the transaction was, but that she was in no respect in- fluenced by the peculiar relation in which they stood to each other. Lastly. All contracts which are a fraud on the provisions of an Act of Parliament or upon any rule of common law, such as any which infringe on the policy of any Act touching bankrupts, or any which involves champerty or restraint of trade, &c., are in equity either void or voidable if due dili- gence is used {y). Equity considers contracts with guardians to facilitate marriage, and contracts or conditions in general restraint of marriage, also void. For an able discussion of 13 Eliz. c. 5, passed to protect creditors, and of 27 Eliz. c. 4, passed to protect purchasers, the student is referred to the notes on Twyne's case, in the first volume of Smith's selection. Twyne's case is useful for its enumera- tion of circumstances indicating fraud. As, an instance of relief given against a fraud on a statute, though not expressly forbidden thereby, we cite Cowen's case {z). The Bankruptcy Act, 1862, sect. 192, empowers a certain majority of cre- ditors in number and amount of debts assenting to a deed of arrangement to bind those non-assenting. {y'y Tor the common law doctrines of illegal contracts the stu- dent is referred to " Chitty on Contracts," chapter iy. (z) 2 C. A. 563. RULES OF LAW. 201 Lord Justice Cairns in his judgment said — " In my opinion there is a statutory power given to the majority of the creditors to bind the minority. They are made the judges of the propriety of the arrangement so long as they exercise their power bon^ fide, and it certainly seems to me that it would be contrary to the spirit of the Act that this court should sit in review on their decision as regards the quantum of composition they agree to accept. But this is subject to the paramount obligation that this power, like aU other powers, must be exercised fairly, so that there may be a bona fide bargain be- tween the creditors and the debtor. If it should be found that the bargain was tainted with fraud, the arrangement will not be binding on the non-assenting creditors. If, for example, it were found that there was a bargain with some of the creditors, to give them some peculiar benefit, that would be a fraud. But even without any ingredient of fraud, if the creditors, from motives of charity and benevolence which might be highly honourable to them, were willing to give the debtor a discharge on payment of a composition wholly disproportioned to his assets, that would not be such a bargain as the Act requires, and would not bind the non-assenting minority." If a decree has been obtained by fraud it may be impeached by original bill, without the leave of the court (a), the fraud used in obtaining the decree being the principal point in issue, arid necessary to be established by proof before the propriety of the (o) Lord Redeadale, p. 92. k5 202 FRAUD, decree can be investigated. And where a decree has been so obtainedj the court will restore the parties to their former situation, whatever their rights may be. Besides cases of direct fraud in obtaining a decree, jt seems to have been considered that where a decree has been made against a trustee, the cestui que trust not being before the court, and the trust not discovered, or against a person who has made some conveyance or incumbrance not discovered, or where a decree has been made in favour of or against an heir, when the ancestor has in fact disposed by will of the subject-matter of the suit, the concealment of the trust or saibsequent conveyance, or incumbrance or will, in these several cases, ought to be treated as a fraud. It has been also said that where an improper decree has been made against an infant without actual fraud it ought to be impeached by original bill. A suit was compromised with the sanction of the Master (J), who was of opinion that the compromise would be for the benefit of one of the plaintifis, an infant. On a bill subsequently filed by the infant, the Lords Justices set aside the compromise, on the ground that the defendant, who had made one of two affidavits used before the Master, as to the value of the property the subject of the compromise, had not produced the report of the surveyor, on which that value was made out. (i) Brooke v. Mostyn, J. (64), 1114. ( 203 ) EQUITY JURISDICTION. Chap. I. — The Extent of the Jurisdiction of THE English Chancery .... page 205 Chap. II. — The Officees and their Du- ties fcge 207 (1.) The Judges. (2. ) The Record and Writ Clerks. (3.) The Examiners. (4.) The Registrars. (5.) The Accountant General. (6.) The Chief Clerks of the Judges. (7.) The Conveyancing Counsel. (8.) The Taxing Masters. (9.) Commissioners to administer Oaths in Chancery. (10.) Solicitors — and herein of Equity Counsel. Chap. III. — The Forms and Modes of present- ing Cases for Aid or Relief . . -page 214 Chambers : — Summons. Court:— (I.) Motion. (2.) Petition, and herein of Petitions under the Trustees Relief Acts. (3.) Pleadings in Chancery by Bill. (4.) Special Case. (5.) Injunction. 204 EQUITY JUEiSDICTION. Chap, IV.— Administkation of the Estate of A Deceased Person page25A: Chap. V.— Chancekt (Peoceduke) Amendment Act, 1858 page 259 Chap. VI. — Chancekt (Peoceduee) Regtila- TiON Act, 1862 page 265 Chap. VII.— Equity Time Table . . page 210 Schedule of Foems page 272 Appendix: — County Court Jurisdiction . page 282 ( 205 ) CHAPTEE I. The Extent of the Jueisdiction of the English Chancery. In using the word jurisdictioiij as distinguished from jurisprudence, we intend to signify the administra- tion of the principles of equity, as applicable to particular cases presented ia the offices or courts of the Chancery for aid or relief. The subject naturally leads to a consideration — (1.) Of its ex- tent; (2.) Of its officers and their duties; (3.) The forms for presenting cases for aid or relief to a judge in court or in chambers; (4.) Of the power exercised by injunction ; (5.) Of certain statutes amending the jurisdiction. Its Extent. — Extra territorium jus dicenti impune non paretur. One sovereign state cannot interfere with the rights of another ; therefore, no decree in equity can be obtained directly affecting lands which are foreign. The great seal is, in equity, the seal of the English courts, and a decree in rem, or affecting his status, against a Scotchman, as by appointing a guardian for him, is not obligatory on the Scotch courts. Stuart v. Moore, H. L., J. (6 1 ), 1 1 29. On the other hand, though a decree in rem may not be obtainable, one in personam, in respect of any agreement or obligation binding in natural equity. 206 EQUITY JUKISDICTION. may be and is enforced by process of contempt. Thus, in Penn v. Lord Baltimore (a). Lord Hard- wicke decreed the performance of articles for ascertaiaing the boundaries of two provinces in America. MobiHa sequimtur personam, and therefore it is said a trust affecting personalty in a foreign country will be enforced against the trustee if within the jurisdiction. But it is to be remembered that the comitas gentium respects the decrees of foreign courts even in cases of personalty. Lastly, a trust cannot be forced on persons not within the territorial jurisdiction. The United States government, not answering a communication informing them of a gift in trust for the foundation of a college for blacks, the gift was declared void. (a) 1 Ves. 444. ( 2G7 ) CHAPTER II. Of the Officers aotj their Duties. (1.) The Jvdges. ^2.) The Officers of the Cowrt — Record and Writ Clerks — Examiners — Reg^ra/rs — A ccountoMt- General — Chief Clerks of the Judges — Conveya/ncvng Counsel — Taximg Masters — Commissioners to administer Oaths in, Chan- cery — Solicitors and, herein of Eqmty Cov/nsel. (1.) Of the Judges we have said sufficient ia the chapter on the History of the Court. (2.) Record and Writ Clerks. — These officers have the care of all documents ordered to be de- posited for safe custody. They file, have the custody of, copy and amend all bills, demurrers, pleas, answers, and other pleadings and records; enter appearances, consents, notes, and memoran- dmns of service ; certify appearances and proceed- ings ; keep exhibits deposited for inspection and copying ; attend with records and exhibits on the judges of the court, or at the assizes or elsewhere ; enrol decrees and orders ; administer oaths ; and perform aU the other duties which used to be per- formed by the six clerks, sworn clerks, or writing clerks, as officers of the court in relation to suits and matters in equity, and not as attomies, solici- tors, or agents of the parties. Their duties are further defined by Cons. Ord, i, rr. 35—53. The routine of the office is shown in Braithwaite's Re- cord and Writ Practice. 208 EQUITY JIIRISDICTION. (3.) Examiners.— ThesQ oflScers formerly were appointed for the purpose only of taking the de- positions of witnesses in private and upon written interrogatories prepared by counsel. The Juris- diction Improvement Act, 15 & 16 Vict, c. 86, in- troduced the practice of public examination in the mode in use in courts of common law with respect to a witness about to go abroad, and not expected to be present at the trial of a cause. For the present practice of this office, see the section on Evidence, Chap. III. (3.), IV. p. 240. (4.) Registrars. — A registrar always attends a court when the judge is sitting. They take minutes of the orders and decrees made by the judges, and afterwards, with the assistance of cotmsel's papers, draw them up in proper form. They are then entered by the clerks in books. Calendars and indexes of such entries are made, so that the same may be conveniently referred to. The duties of the office are defined by Cons. Ord. i, rr. 17 — 33, and by Cons. Ord. xxiii. — Of Decrees and Orders. On March 15, 1860, the registrars issued a series of rules regulating tlie practice of the office. Cf. Cons. Ord. i, r. 33. (5.) The Accountant- General. — Of his office, we gave the history in our first chapter. In addition to 12 Geo. I. c. 32, its duties are defined by Cons. Ord. i, rr. 1—16, and the Court of Chancery Officers Act, 1867, ss. 11, 12. (6.) Chief Clerks of the Judges. — In our history OF THE OFnCEES AND TBfEIR DUTIES. 209 of the Accountant-General's Office, we had occasion to speak of the Masters in . Chancery, and stated that they had formerly the custody of the money of the suitors. Till recently it was their duty, as auxiliary to the judges^ to make inquiries and coUect evidence, to take accounts, transact con- veyancing, tax costs, and, generally speaking, to investigate and decide on matters preliminary to a final decree, and to work out in chambers, with the parties, the details of a decree. TJiey were independent of the judges, and in 1852, when the jurisdiction was improved, it was determined that the business arrangements of this department should also be reformed. Accordingly, 15 & 16 Vict. c. 80, made provision for the abolition of the office, and empowered the Master of the Kolls and the Vice-Chancellors to sit in chambers, and, with the assistance of chief clerks, to transact the business hitherto transacted by the masters, and generally such business as they should think might be more conveniently there disposed of than in court, such as applications for time to plead, appli- cations to amend pleadings, to produce documents, as to the conduct of suits or matters, guardianship, and maintenance or management of property. An order for the administration of a deceased's personal estate, and of his real estate, if all vested in trustees empowered to sell and give receipts, may be obtained under 15 & 16 Vict. c. 86, ss. 45, 47. In addition. Cons. Ord. xxxv, r. I, directs that the 210 EQUITY JURISDICTION. business in chambers shall comprise the following matters, that is to say : — Applications for payment to any person of the dividends or interest of any stocks, funds or se- curities standing to the credit of any cause or matter depending to the separate account of such person. Applications under the stat. 36 Geo. III. c. 52, s. 32, in all cases where the sum paid into the bank, or the stock transferred into the name of the accountant-general, under such section, does not exceed 300Z. cash, or 300Z. stock, as the case may be (a). Applications under the stat. 10 & 11 Vict. c. 96, intituled " An Act for the better securing Trust Funds and for the Relief of Trustees," and the stat. 12 & 13 Vict. e. 74, intituled « An Act for the further Relief of Trustees, in all cases where the Trust Fund does not exceed 300Z. cash, or 300Z. stock, as the case may be." Applications under the "Trustee Act, 1850," and the stat. 15 & 16 Vict. c. 55, intituled " An Act to extend the Provisions of the Trustee Act, 1850," in all cases where any decree or order shall have been made by the court for the sale or conveyance of any lands, manors, messuages, tenements or hereditaments, corporeal or incorporeal, of any tenure or description, whatever may be the estate or interest therein. Applications on behalf of infants, under stat. (a) This refers to payments into court by personal representa- tives of legacies to infants and persons beyond the seas. OF THE OPPICEES AND THEIK DUTIES. 211 1 Will. IV. c. 65, ss. 12, 16 and 17, in all cases where the infant is a ward of the court, or the ad- ministration of the estate of an infant, or the main- tenance of the infant, is under the direction of the court. The duties of the chief clerk are marked out, and the course of proceedings in chambers ordered, by the sixty-five rules of Cons. Ord. xxxv. Regu- lations for the conduct of business were issued by the judges 8th August, 1857. For forms of sum- mons and chief clerk's certificate refer to schedules A and B. (7.) Conveyancing Counsel. — The same Act which abolished the oflace of master, and authorized the appointment of chief clerks, empowered the Lord Chancellor to nominate Conveyancing Counsel, to whom the court or a judge in chambers might, should he so please, refer matters of conveyancing. Cons. Ord. ii. (8.) Taxing Masters. — These officers perform aU such duties, in relation to the taxation of costs, as were formerly referred to or performed by the masters in ordinary; and in respect hereof have all such powers and authorities as were formerly vested in their predecessors, to administer oaths, to examine witnesses and parties, to order the production and inspection of books, papers and documents, to proceed de die in diem, to make separate reports and certificates, to require that any party be represented by a separate solicitor, A party dis- 212 EQUITY JURISDICTION, satisfied with the certificate may appeal to the court. Cons. Ord. xi. (9.) Commissioners to administer Oaths in Chan- cery. — Formerly the duty of administering oaths and taking depositions throughout the country apper- tained to officers called masters extraordinary. 17 & 18 Vict. c. 83, substituted in their room "Com- missioners to administer oaths in Chancery in Eng- land," and "London Commissioners to administer oaths in Chancery." The one set cannot administer oaths within ten miles of Lincoln's Inn Hall, nor the other set without the circle. Each set may admi- nister oaths for the Chancery of the County Palatine of Lancaster. Every commissioner is to express the time when, and the place where, he shall take any affidavit, plea, answer or disclaimer, or the acknowledgment of any deed or recognizance, or do any other act incident to his office. Cons. Ord. iv. (10.) Solicitors. — The solicitors are the legal agents of the suitors and others litigant parties. They cannot practise without having their names entered on the rolls of the Chancery, and accord- ingly, though not ministers of the court, are subject to its control, and, on cause shown, liable to have their names erased. A detailed statement of the qualifications, rights and duties of these gentlemen is without our plan (5). Suffice it to say, that (>) Touching the rights, duties and privileges of an attorney, Lush's Practice of the Superior Courts of Law may be consulted with advantage. In Chancery formerly the six clerks were the only attomi?s. Comyn'a Digest. OF THE OFFICEES AND THEIE DUTIES. 213 (unless a person is unwise enough to conduct his own case) the solicitor will perform services for him in instituting and carrying on equity proceedings in the chancery courts analogous to those performed by London attornies in connection with actions in the superior courts of law. Should the person reside in the country, and the property involved be worth more than 5007., or the case be otherwise improper for a county court, the facts and proofs may be col- lected and arranged for Equity Counsel by a country attorney. Should he reside in London, the same duty may be better performed by a solicitor. In either case a solicitor must be employed to file the proceedings, obtain writs, attend in court, pay money into the accountant-general's office or receive it out, and perform other usual routine business. Where pleadings are used the solicitor must obtain the signature of counsel, that is, of a barrister practising in equity (c). The other requi- site documents are usually prepared or revised by counsel. Counsel alone are heard in court. In the judges' chambers, both counsel and solicitors appear. Cons. Ord. iii. (c) The clerks of records and writs shall not file any bill, excep- tions demurrer, plea, answer or disclaimer, unless the same be signed by counsel. Cons. Ord. viii, r. 1. 214 EQUITT JURISDICTION. CHAPTEE III. The Fokms and Modes op presenting Cases FOE Aid ok Relief. Cb^mbbert : — Summons. C'fl««r« :— (1.) Motion; (2.) Petition; (3.) Bill; (4.) Special Case; (5.) Injimction. Chamhers : — Summons. Okiginal summonses are prepared by the parties and sealed by one of the clerks of the judge from whose chambers they are issued. Cons. Ord. xxxv, r. 5. They are to be served seven clear days before _ their return. K. 7. The parties served are to enter appearances in the record and writ clerks' office, and to give notice thereof. E. 9. States of facts, charges or discharges are not to be taken in. But, when directed, copies, abstracts or extracts of or from accounts, deeds or other documents, and pedigrees and concise statements, are to be supplied for the use of the judge and his chief clerks, and copies handed to the other parties. But no copies are to be made of deeds or documents where the originals can be brought in, imless the judge shall otherwise direct. E. 26. The attendance of witnesses is procured by a summons from the chief clerk, or by a subpoena SUMMONS— MOTION. 215 issued from the record and writ clerks' oflSce, upon a note by the judge. Rr. 4, 29. Original examinations and depositions of parties and -witnesses taken by or before the chief clerk, authenticated by his signature, are to be transmitted by him to the record and writ clerks' office, to be there filed, and any party to the proceeding may have a copy thereofj» or of any part or portion thereof, upon payment of the proper fee. E.. 31. All orders made in chambers, and drawn up by the chief clerk or registrar, are to be entered in the same manner and in the same office as orders made in open court are entered. E., 32. For forms of Summons and Certificates, refer to Schedules A and B. Court: — (1.) Motion. Motions are applications made by counsel to the court without bringing in states of facts, charges, or discharges, for an order which is wanted imme- diately, and which is, in some cases, granted as a matter of course ; in others, not till after a discussion of circumstances. Motions of the former descrip- tion are called motions of course, and are made ex parte; those of the latter, special motions, and are not to be made till notice has been served on any other party interested. Most of the orders sought are interlocutory, and do not touch directly the ultimate decision. How- ever, the Improvement of Jurisdiction Act, 15 & 16 Vict. c. 86, introduced a new species of motion, by which the decree ordinarily made at the hearing 216 EQTJITT JURISDICTION. may be obtained. Sect. 15 enacted, " The pla,intiff in any suit commenced by bill shall be at liberty at any time after the time allowed to the defendant for answering the same shall have expired, but before replication, to move the court upon such notice as shall in that behalf be prescribed by order of the Lord Chancellor, for such decree or decretal order as he may think himself entitled to. Cons. Ord. xxxvi; Cons. Ord. vi, rr. 5 — 12 ; E,eg. of Registrars, r. 31 ; and also with respect to mo- tions for a decree, a General Order of October 6, 1866, Aform of Notice of Motion is given in Schedule C. (2.) Petition. Petitions resemble motions in many respects, but the application is always founded on a written document. This document may contain states of facts. The document is addressed to the Lord Chancellor or to the Master of the Rolls ; and if the petition is special it must be marked at or near the top with the name of a branch of the court, which, when the petition is in a cause, is that of the judge to whose court the cause is attached. Petitions for orders of course to the Master of the Rolls are very numerous. At the" foot of every special petition, and of every copy, a statement must be made of the persons to be served, or that no person is to be served, A form of Petition is given in Schedule D. Cons, Ord. xxxvi; Cons, Ord,vi, rr, 5 — 12; Reg, Registrars, 32—33, PETITION BY TEUSTEE. 217 The Trustee Eelief Act (10 & 11 Vict. c. 96), s. 1, enaetH, That all trustees, executors, adminis- trators, or other persons, having ia their hands any monies helonging to any trust whatever, or the major part of them, shall he at liberty, on filing an affidavit shortly describing the instrument creating the trust according to the best of their knowledge and belief, to pay the same, with the privity of the Accountant-Geueral of the High Court of Chan- cery, into the Bank of England, to the account of such Accountant-General in the matter of the par- ticular trust (describing the same by the names of the parties as accurately as may be for the purpose of distinguishing it), in trust to attend the orders of the court ; and that aE trustees or other persons having any annuities or stocks standing in their names in the books of the Governor and Company of the Bank of England, of the East India Company or South Sea Company, or any government or parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon amy trust whatever, or the major part of th^m, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said Accountant-General, with his privity in the matter of the particular trust (describing the same as aforesaid), in trust to attend! the orders of the said court ; and in every such case the receipt of one of the cashiers of the said bank for the money so paid, or in case of stocks or securities, the certificate of the proper officer of the transfer or deposit of such stocks or securities, shall 218 EQUITY JURISDICTION. be a sufficient discharge to such trustees or other persons for the money so paid, or the stocks or securities so transferred or deposited. Sect. 2 enacts, that the order for payment into or out of court is to be upon a petition in a summary way. 12 & 13 Vict. c. 74, enables a majority of the trustees to act without the concurrence of the minority. An improper application to the court by petition, or an unnecessary application by bill, renders the applicant liable for costs. No question as to whether a sum is a right sum will be entertained on petition. When a fund is paid into court, ap- plications respecting it must be under the Act. But the trustee is liable on bill for any part re- tained, though even for costs. An assurance com- pany, having received notice of conflicting claims to policy monies, paid them iato court. Costs of appearance as between solicitor and client were allowed, but no charges or expenses (a). The proceedings are regulated by Cons. Ord. xli, rr. 1—9. The Act to further amend the law of property and to relieve trustees, 22 85 23 Vict. c. 35, s. 30, enables any trustee, executor, or administrator, without the institution of a suit, to apply by petition to any judge of the High Court of Chancery, or by sum- mons upon a written statement to any such judge at chambers, for the opinion, advice or direction of such judge on any question respecting the manage- (a) Webb's PoUcy, 2 E. C. 456. PETITION BT TETJSTEE. 219 ment or administration of the trust property or the assets of any testator or intestate, such application to be served upon, or the hearing to be attended by, all persons interested in such application, or such of them as the judge shall think expedient ; and the trustee, executor, or administrator, acting upon the opinion, advice or direction given by the said judge, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator, in the subject matter of the said application; provided, nevertheless, that this act shall not extend to in- demnify any trustee, executor, or administrator, in respect of any act done in accordance with such opinion, advice or direction as aforesaid, if such trustee, executor, or administrator, shall have been guilty of any fraud, or wilful concealment or mis- representation in obtaining such opinion, advice or direction, and the costs of such application as afore- said shall be in the discretion of the judge to whom the said application shall be made. Where there is a question of construction affect- ing property of large value a bill is the proper remedy (5). The section is retrospective in its operation (c). The form of a Petition is given in Schedule D. (J). In re Simpson, 1 Johnson & H. 89. An order changing an investment to one in East India Stock may be made on a bill, though 23 & 24 Vict. c. 38, s. 10, seems to require a petition. Lucas ij.Eudd,W. 1^(68), 24. (c) In re Burnett, J. (64), 1098. l2 220 EQUITY JUKISPICTION. (3.) Pleadings in Chancery by Bill. I. A Bill in Chaneery—Itt essential Regmsites and herein of, (1.) Parties— jASdress—Besenption af Plqmtiff. (2.) Mode of Allegation. (3.) The Prayer. (4.) Writ (f Swrnmons—Pri/nbi/ng, — Mlimg—Ma/rTimg— (5.) Interrogatories— Prodmction of Bocvments. II. Bills, their several hrndg: (1.) Original. (2.) 2fot Origimal. (3.) In, the Natwe of Original. III. Modes of Be/'enoe: (1.) Benvu/rrers. (2.) Pleas. (3.) Answers. rv. Evidence. V. Motion for a Beoree. VI. 2%e Rearing. VII. Appeals: (1.) i« Chancery. (2.) To ). An answer must not be evasive. Where a de- fendant denies a fact, he must traverse or deny it directly and not by wfty of negative pregnant j as, for example, where he is interrogated whether he has received a smn of money, he must deny or tra- verse that he has received that sum or any part there- of, or else set forth what part he has received. And so where a fact is alleged with divers circumstances the defendant must not deny or traverse it literally as it is alleged in the bill, but must answer the point of substance positively and certainly. Cons. Ord. XV, r. 2. If no discovery is required, a defendant may dis- claim aU interest in the suit. This entitles him to have the bill dismissed as against him and to his costs. Though no interrogatories are served a de- fendant may put in a voluntary answer. An answer contains no protestation of the truth of the statements of the bill, for by answering the case is put into a course ia which the truth will be tested. It usually consists of more paragraphs than one, which are numbered. Counsel's signature authenticate the document. Unless the court shall otherwise direct, the answers of all persons (except persons entitled to the privilege of peerage or corporations aggregate) (j>) Hoare v. WUboii, i E. C. 1. 238 EQUITY JURISDICTION. shall be put in upon the oath of the parties putting in the same, where they are not exempted from taking an oath by any statute in that behalf. Per- sons entitled to the privilege of peerage may answer upon protestation of honour, and corporations ag- gregate shall put in their answer under their com- mbn seal. Cons. Ord. xv, r. 6. Answers are to be signed by the parties swearing or affirming the same, and such signature is to be affixed or acknowledged in the presence of the persons administering the oath or affirmation. Cons, Ord. XV, r. 5 ; Prel. Ord. r. 10. The plaintiff, if in his opinion the discovery given is insufficient, may except to the answer. Such ex- ceptions must be in writing and signed by counsel. In deciding on the sufficiency, the relevancy or materiality of the statement or question referred to is to be taken into consideration. Cons. Ord. xvi, r. 1 and 4. Scandal is also ground for exception. When an answer is accompanied by a plea or demurrer to discovery, an exception before their argument admits their validity. A further answer is similar to, and indeed is con- sidered as forming part of, the first. So an answer to an amended bill is part of the first answer to the bill. In cases where it was not prejudicial to the plaintiff, the court has permitted a supplemental answer to correct mistakes. After sufficient answer the plaintiff has to amend (if necessary) the case made by his bill. Cons. Ord. ix. Part II. 15 & 16 Vict. c. 86, s. 19, enacts that a defendant. MODES OF DEFENCE. 239 after putting in (if required) a sufi&cient answer, may, without filing any cross bill of discovery, file interrogatories for the examination of the plaintiff". A concise statement of the subjects on which dis- covery is sought must be prefixed thereto. This may be done after obtaining the common affidavit as to documents (g-). The section does not apply where a company or corporation is plaintiff" and its officers are not made parties (r). Where exceptions have been ordered to stand over till the hearing of the cause, the concise statement and interrogatories cannot be filed without leave of the court (s). A defendant may plead, demur, answer or dis- claim to separate parts of the same bill. If to the same part a plea or answer will overrule a demurrer, and an answer a plea. If an answer and disclaimer are inconsistent, the question will be taken most strongly against the defendant upon the disclaimer. After the expiration of the time allowed to the defendaiit to plead, answer or demur, not demur- ring alone, to any original or supplemental bill, or bill amended before answer, which he has been re- quired to answer, if such defendant has not filed any plea, answer, or demurrer, the plaintiff" may file a note at the record and writ clerks' office to the fol- lowing effiect : — The plaintiff" intends to proceed with his cause as if the defendant had filed an answer traversing the case made by the bill. Cons. Ord. xiii, r. 1. (j) Newall V. The Telegtaph Construction Co., 2 E. C. 756. (r) Imperial Mercantile Oredit Association v. Witham, 3 £. C. 89. (*) Mortens v. Haigh, J. (60), 1288. 240 EQUITY JURISDICTION. Where a defendant is not required to answer and does not answer, he is to be considered as having traversed the case made by the bill {t). A plaintiff may obtain a decree on bill and answer ; but seeing that at the hearing on bUl and answer he is taken to admit all the allegations in the answer, and also all the allegations in the bill made positively and not by way of pretence, such a proceeding is not often advisable,, save in friendly suits. And even in friendly suits the necessity is superseded by Lord Justice Turner's Act, 13 & 14 Vict. c. 45, which instituted a new form of proceeding called a special case, under which a decree declaratory of and settling rights vrithout further relief may be obtained. When the parties are not agreed as to the facts a replication is filed ; only one replication is to be filed in each cause, unless the court shall otherwise direct. Upon filing it the cause is to be deemed completely at issue, and each defendant may pro- ceed to verify his case by evidence, and the plaintiff may in like manner proceed as soon as notice of the replication being filed has been duly served on all the defendants who have filed an answer or plea, or against whom a traversing note has been filed, or who have not been required to answer, or have not answered. Cons. Ord. xvii, r. 2. The form of an Answer is given in Schedule J. IV. Evidence. In order to determine for what matters evidence (*) 15 & 16 Vict. c. 86, s. 26. EVIDENCE. 241 must be obtained tbe following rules must be observed: — 1. Facts are admitted either expressly or con- structively by the positions and negations of the parties in their pleadings. The plaintiff and de- fendant are each taken to admit whatever is posi- tively asserted by the other, and not denied by himself. 2. Evidence must be confined to the points in issue. 3. The burden of proving the substance of an allegation rests on him who makes it. 4. Variances between the issues and the evidence must be avoided, being ground for dismissal, not amendment of bill. Proofs consist of — (1.) Affidavits, that is, volun- tary statements made on oath to commissioners; and, (2.) Volimtary or compulsory ex parte statements before examiners. Affidavits, and examinations which are to be treated as affidavits, on being filed, subject the deponent to cross-examination and re- examination before the court, (3.) Viv^ voce depositions in court in accordance with a special order obtained on summons. Except where such order is obtained the evidence may be partly by affidavit, partly by oral statements before an ex- aminer. Parties may also agree in writing that cross-examination and re-examination shall follow immediately upon examination. This was the prac- tice under 15 & 16 Vict. c. 86. Affidavits are to be taken and expressed in the first person, and the means of knowledge are to be stated. No affidavit M 242 EQUITY JXJEISDICTION. is to be filed unless at the foot there is a memoran- dum, stating on whose part or behalf it is filed. The evidence in tjhief on both sides in any cause in which issue is joined, to be used at the hearing thereof in respect of facts and issues not included in any order for taking sAddence in chief vIt^ voce at the hearing, shall, whether taken by affidavit or before an examiner, and including cross-examina- tion and re-examination immediately foUowing his examination, be closed within eight weeks after issue joined, unless the time be enlarged by special order. Gen. Ord. February 5, 1861, r. 5. Evidence taken in a cause subsequently to the hearing is to be taken according to 15 & 16 Vict. c. 80.— 15 & 16 Vict. c. 86. The examination of a witness at the hearing may save the expense of an inquiry by the chief clerk, or an issue for trial of a doubtful fact (m). Gen. Ord. 5 February, 1861 ; Cons. Ord. xviii, xix ; and 15 & 16 Vict. c. 86, ss. 28 — 41. Motion for a Decree. In most of the cases which come before the court a decree is obtained in a speedier and less expensive manner than by putting everything in issue. The method, which is that of moving the court to make a decree, was introduced by the Improvement of Jurisdiction Act (v), sect. 15, which enacts, that the plaintiff in any suit commenced by bill shall be at («) Turner, L. J., Ferguson v. Wilson, 2 C. A. 77. (v) 15 & 16 Vict, c. 86. THE HEAEING. 243 Kberty at any time after tlie time allowed the de- fendant for answering the same shall have expired, but before replication, to move the court .upon notice for such decree or decretal order as he may think himself entitled to, and the plaintiff and defendant respectively shall be at liberty to file aflSdavits in support of and in opposition to the motion so to be made, and to use the same on the hearing of sudi motion ; and, if such motion shall be made after an answer filed in the cause, the answer shall for the purposes of the motion be treated as an affidavit. After notice and filing of plaintiff's affi- davits a defendant may yet, unless guilty of ex- cessive delay, file interrogatories, and plaintiff's be stayed till he has answered (w). Cons. Ord, xxxiii, rr. 4—9, and Gen. Ord. October 6, 1866. 77ie Hearing. It is the registrar's duty to enter a cause in the court list for hearing ; but before his doing so a certificate from the record and writ clerks' office that the pleadings are in a fit state is requisite. The briefs are prepared for counsel by the solicitors. That for the plaintiff contains copies of all the plead- ings and evidence ; that for a defendant only so much thereof as can be read for or against him. Within four weeks after closing the evidence a subpoena to hear judgment is served on the defen- dants. The cause comes on in its turn. The judge has copies (prepared by plaintiff's solicitor) of all the (w) Brancker v. Came, 2 B. C. 610. m2 244 EQUITY JUEISDICTION. pleadings and evidence. If the cause is a friendly one, the counsel, or senior counsel if more than one, may -propose the minutes of the decree. If not, the plaintiff's case is opened, the evidence read, and the arguments enforced. Defendant's counsel, in a similar manner, represent the interests of their client. After a reply for the plaintiff the judge, if he has allowed the arguments to go so far, pro- nounces his decree. This may be that preliminary inquiries be made or accounts taken {x), or the decree may settle rights to be worked out in cham- bers. A final decree is more frequently made on further consideration. Cons. Ord. xxi, and Regis- trars' Reg. March 15, 1860. For information re- specting the drawing up and preserving decrees the reader is referred to the section on the Registrars, Chap. II. (4.), p. 208. Appeals in Chancery. If either party is dissatisfied with a decree he may have the cause reheard before the same judge or before a Court of Appeal (y). He may also appeal from a rehearing by the same judge. As a general rule, no rehearing from any decree or order, or any rehearing of the case on which such decree or order is founded, is allowed, unless the same is set down for rehearing, and the requisite notice duly served, within five years. Cons. Ord. xxxi, r. 1. The first step in an appeal to be taken is to address (as) An order to this effect may be obtained on special motion. Cons. Ord. xx. (y) Introductory Chapter, p. 17. APPEALS TO THE HOUSE OF LORDS. 245 a petition of rehearing and appeal to the Lord Chan- cellor, stating the decree or order complained ■ of. Two counsel ought to add to the petition a certifi- cate that the case is one proper for rehearing before the Lord Chancellor. A deposit of 20?. must also be made, to be paid with taxed costs to the opposite party if the decree is not materially yaried. The rehearing may be before any of the Courts of Appeal, though the petition is to the Lord Chan- cellor. It does not stop proceeding on the decree or order appealed from. Cons. Ord. xxxi, rr. 2 — 4. The present practice is for the appellant to begin (2). Bills of review and other bills of that nature are noticed in the section on bills in the nature of original bills. Chap. III. (3.), II. (3.) Appeals to the House of Lords. In the opinion of Sir Matthew Hale and his learned editor, Mr. Hargrave, the House of Lords did not receive appeals from the courts of equity before the reign of Charles L, and perhaps not be- fore the civil commotions commenced. In the con- fusion following the Restoration, the House went so far as to act on a supposed original jurisdiction, During the conflict between the two Houses, in the case of Shirley v. Fagg, the House of Commons passed a vote (November 19, 1675), " That whoso-, ever shall solicit, plead or prosecute any appeal against any commoner of England, from any court of equity, before the House of Lords, shall be («) Williams v. Williams, 2 C. A. 15. 246 EQUITY JUEISDICTION. deemed and taken a betrayer of the rights and Kberties of the commons of England, and shall be proceeded against accordingly." Though in strict- ness of theory the constitutional appeal would be to the soTereign in council or to the three estates of the reakn, yet, in practice, while the Privy Coun- cil is the appeal court from the Chancellor's juris- diction derived from the sign manual, the House of Lords performs similar functions for appellants from the equity courts of the Chancery. The appeal may be immediate from a decision of the Master of the Rolls or a Vice-Chancellor, as well as from that of the Appeal Courts in Chancery, The decree or order (for an appeal lies from an interlocutory order) is first enrolled. This should be done within six months, and cannot, without leave of the Lord Chancellor or a Lord Justice, be done after five years (z). A petition is then pre- pared, which must be certified by two counsel. It is movedby a peer, and the cause proceeds, as in other courts of law and equity, in a course ordered by a system of standing orders. No fresh evidence is adduced before the Lords, though they sometimes remit the case for that purpose to the court below. The order of the House, if it reverses or varies the order of the Court of Chancery, is made an order of the court. After dismissal of a bill for an injunction not so framed as to preserve the jurisdiction, the Lords (i) Cons. Ord. xxUi, 23—28. SPECIAL CASE. 247 Justices refused to restrain the defendant during the plaintiff's appeal (a), (4.) Special Case. A special case is a form of proceeding by which persons, if they can agree as to facts, may, without the delay and expense of preliminary inquiries and accounts, obtain from a judge in court the deter- mination of any question as to any matter falling within the original jurisdiction of the High Court • of Chancery as a court of equity, or made subject to the jurisdiction of the said court by any statute not being one of the statutes relating to bankrupts. The proceeding was established by 13 & 14 Vict. c. 35, at the instance of the late Lord Justice Turner, then Mr. Turner. The Act contains an elaborate statement of the requisites the case must satisfy be- fore it can be determined by the judge. The im- portance of this method of proceeding has been diminished by the Act for the Improvement of Equity Jurisdiction, 15 & 16 Vict. c. 86, which enables the court to make a declaratory decree without administering consequent relief in the ordinary proceeding by bill, and that without filing interrogatories. (5.) Injunctions, I. Interlocutory and Mnal. II. To rettroMi Proeeedmgs in other Cowrts. I. Not only do the courts of equity investigate, adjudicate upon, and enforce equitable rights by (a) Galloway v. The Mayor of London, J. (65), 537. 248 EQUITY JURISDICTION. decree, they also interfere in a summary way to pre- vent or stay the commission of an injury by an order called an injunction. Thus, pending litigation, the property is taken into the custody ; forged bills, of exchange, and other like documents obtained throtigh fraud, and instruments which may be used wrong- fully, are ordered to be given up or cancelled. The committing of waste, the destruction of an easement, as by building opposite to windows, is restrained. An interim order for an injunction may be obtained, and that either ex parte or on notice. If the plain- tiff seeks it ex parte, he must bring all material facts to the knowledge of the court (b). An in- junction bill need not be printed in the first instance ; a written copy may be filed and served if the plaintiff imdertakes to file a printed copy within fourteen days (c). A stronger case of acquiescence is neces- sary for defence at the hearing than on an interlocu- tory motion (d). The interim order is made on the condition of the plaintiff undertaking to abide by an order to be made as to damages, in case the court should thereafter be of opinion that the defendant had sustained any damages by the injunction which the plaintiff ought to pay, and sometimes on the further condition that plaintiff will accept short notice of motion to dissolve the injunction. The utility of the remedy by injunction is very apparent in cases where, though the common law (J) Fuller V. Taylor, J. (63), 743, V.-C. Wood. (c) 15 & 16 Vict. c. 86, a. 6. (d) Johnson v. Wyatt, J. (63), 1333, L. J. INJUNCTIONS. 249 courts will give a remedy^ irreparable damage may be done meanwhile (e). Thus, where a miller let down water so as tq inundate his neighbour relief was granted. So where a railway company blocked up the access to the station of the plaintiffs, another railway company, by a strong barrier or stockade, partly on a public footpath and partly on lands belonging to the plaintiffs, and the plaintiffs filed a bill alleging that the injury would be irreparable and that the defendants had no colour of title, Vice-Chancellor "Wood granted an interim injunction to restrain the trespass, though by a stranger (/), A prayer for a writ of injunction may be added whenever required to the prayers in ordinary bills. One advantage of the addition is that the writ may be obtained, should the subsequent conduct of the defendant render it necessary, with rapidity. II. The student of Roman law can hardly have failed to perceive the analogy of the injunction to the rnterdicta exhibitoria, prohibitoria, restitutoria. It is very marked in the fact that on principles of equity the interdict restrained, as the injunction does at the present day, common law actions. We pur- pose to say a few words on the controlling power exercised by the equity courts of the Chancery, (1.) Over other courts; (2.) Over applications to parliament. (e) These cases are exceptional, for where there is an entire want of privity between plaintiff and defendant, and the defendant is a mere wrong-doer at law, the equity courts do not usually interfere. (/) London and North- Western Railway Company v. Lancashire and Yorkshire Eailway Company, 4 E. C. 174. M 5 250 EQUITY JUEISDICTION. (1 .) The dispute between Coke, L. C. J. , and EUes- mere, L. C, touching this jurisdiction is related in our chapter on the Origin and History of the Chancery. It is to be remarked that the chancery court does not act as a court of appeal ; it merely prevents an unconscientious use being made of strict legal process by fraud or accident, and bills in the nature of a new trial are discouraged. And the court will not, at least at the present day, allow its process to be made auxiliary to a new jurisdiction, as that of Inclosure Commissioners, on the mere ground that they have miscarried {g). It might have been thought that an action at law would have been rendered independent of the Chancery by those sections of the Common Law Courts Procedure Act, 1854, which enable them to award writs of injunction against the repetition of an actionable wrong, and make it lawful for the de- fendant, or the plaintiff in replevin, in any cause in which if judgment were obtained he would be entitled to relief against such judgment on equit- able grounds, to plead the facts, which entitle him to such relief, by way of defence, and for the plaintiff to avoid such plea on equitable grounds. The reason why such is not the case is that these courts cannot mould their judgments for a decision of part of a question, nor make a modified decision pro tempore, reserving for future consideration the position of claimants yet in their infancy or yet to be bom, their and other rights. The issues in the common law pleadings result in unconditional deci- (y) Bateman ;;. Boynton, 1 C. A. 368, L. J. INJUNCTIONS. 251 sions, yes or no, on the questions: Was there a right in the plaintiff? Was there a breach or injury by the defendant? It is, therefore, only where Chancery would grant a decree without condition, doing thereby final if not complete justice, that equitable defences and replications are permitted (A). Again, the new jurisdiction is permissive ; it does not abrogate, but is concurrent with, that of the Chancery (t). A defendant who is prosecuted both in Chancery and at Law for the same matter may, after complying with certain pleading regulations, obtain an order that the plaintiff elect in which court he will proceed (J). Proceedings in the Ecclesiastical, Admiralty, County, and recently in the Divorce and Matri- monial Cause Court, in a suit for restitution of conjugal rights, have been restrained. The case from the Divorce Court was that of Hunt v. Hunt. The question was the obligatory force of an agree- ment in a separation deed not to sue for restitu- tion (A). Whether that eminent equity jurist, Lord Chancellor Westbury, did not, in deciding that such an agreement was obligatory, somewhat in- fringe on the policy and intention of the act estab- lishing the Court of Divorce and Matrimonial Causes, is open to doubt (/). (A) Wakley v. Froggart, C. E., J. (63), 1248. (i) Stewart v. The Great Western Railway Company, (65), 627, L. C. Westbury. (_;■) Cons. Ord. xlii, r. 5. (k) Ex relatione the writer, and J. (62), 85. (Z) See and consider Anguez «. Angnez, 1 P. M. & D. 176; Williams v. Williams, S. K. 178 ; Kowley v. Rowley, 1 H. L., S. & D. 63. 252 EQUITY JURISDICTION. (2.) WMle the courts of equity, and law declare and enforce rights, it rests in the wisdom of the legislature to create new and abrogate old ones. It is difficult to conceive how an application to parliament can, in accordance with the theory of the constitution, be enjoined. There have been cases, however, in which such application has been in effect enjoined. The use of funds for obtaining an Act of Parliament to extend the purposes of a company has been restrained on the ground of breach of trust (m). And where the directors of a railway company gave a check for 10,000Z. to their engineer, it being supposed that the money was to be employed in applications to parliament, he was ordered to account (w). In Stevens v. The South Devon Railway Com- pany (o). Lord Komilly held that the principles applicable to private partnerships were not to be applied too strictly to companies with public duties and interests, and allowed the directors, though opposed by one class of shareholders, to apply to parliament, but not to use . for that purpose the company's funds. In Steele v. North Metropolitan Railway Company {p). Lord Chelmsford said that the court had power to restrain an application to parliament, but it was difficult to conceive a case in which it would be done. And accordingly, where (m) Heathcote v. North Staffordshire Eailway Company, 2 M. & G. 100; At.-Gen. v. Corporation of Norwich, 16 Sim. 225. {») Gray v, Whalley, T?ie Timet, 23 Feb. 1864. (o) 20 L. J., C. 491; {P) 2 C. A. 237. INJUNCTIONS. 253 an agreement as to the purchase of land had been inserted in a railway bill, and opposition in parlia- ment was consequently foregone, an application by the company to parliament to repeal the agreement was not forbidden. 254 EQUITY JURISDICTION. CHAPTEE IV. Administeation or the Estate of a Deceased Peeson. The remedies of persons having claims on the estate are facilitated by the Act for the Improve- ment of the Jurisdiction of Equity, 15 & 16 Vict, c. 86, s. 45. It is thereby provided : " That it shall be lawful for any person claiming to be a creditor or a specific pecuniary or residuary legatee, or the next of kin, or some or one of the next of kin of a deceased person, to apply for and obtain as of course, without bill or claim filed or any other preliminary proceedings, a simimons from the Master of the Rolls or any of the Vice-Chan- cellors requiring the executor or administrator, as the case may be, of such deceased person to attend before hina at chambers for the purpose of showing cause why an order for the administration of the per- sonal estate of the deceased should not be granted ; and upon proof by aflidavit of the due service of such summons, or on the appearance in person or by his solicitor or counsel of such executor or ad- ministrator, and upon proof by aflidavit of such other matters, if any, as such judge shall require, it shall be lawful for such judge, if iu his discretion he shall think fit so to do, to make the usual order for the administration of the estate of the deceased, with ADMINISTEATION OF THE ESTATE, ETC. 255 such variations, if any, as the circumstances of the case may require ; and the order so made shall have the force and effect of a decree to the like effect made on the hearing of a claim between the same parties ; provided that such judge shall have full discretionary power to grant or refuse such order, or to give any special directions touching the car- riage or execution ef such order ; and in the case of applications for any such order by two or more different persons, or classes of persons, to grant the same to such one or more of the claimants, or of the classes of claimants, as he may think fit ; and if the judge shall think proper the carriage of the order may subsequently be given to such party interested as the judge may direct." The Judges' Regulations of the 8th day of Au- gust, 1857, prescribe the mode of proceeding at chambers. From chambers there may be an ad- journment into court on farther consideration. -At the chambers of the Master of the Rolls this is the usual course. Cons. Ord. xxxv, r. 19. Sect. 47 provides a similar remedy for a creditor or a claimant imder a will, where the whole of the real estate of a deceased person is by devise vested in trustees, who are by the will empowered to sell such real estate, and authorized to give receipts for the rents and profits thereof, and for the pro- duce of the sale of such real estate. The practice is similar to that on section forty- five. The personal representative may not only on a bill, but in simple cases on motion or petition, or 256 EQUITY JURISDICTION. summons in chambers, obtain an administration order. Contingent liabilities are provided for by appropriating sums. Proper notices to creditors will bar their claims against the representative, but not prevent their following assets (a). The Act to further amend the Law of Property and to relieve Trustees, 22 & 23 Vict. c. 35, con- tains some important provisions. Sections 27 and 28. A personal representative, if he satisfy existing claims in respect of rents, covenants or agreements in leases or agreements for leases, and in conveyances on rent charges, and set apart a sum to meet any future claim in respect of any fixed and ascertained sum covenanted or agreed to be laid out on the property, and if he assign the instrument, may, with safety to himself, distribute the residue, though the creditors are not barred from following the assets. Section 29. "Where an executor or adminis- trator shaU. have given such or the like notices, as in the opinion of the. court in which such executor or administrator is sought to be charged would have been given by the Court of Chancery in an administration suit for creditors and others to send in to the executor or administrator their claims against the estate of the testator or intestate, such executor or administrator shall, at the expiration of the times named in the said notices, or the last of the said notices, for sending in such claims, be at liberty to distribute the assets of the testator (a) 13 & 14 Vict. c. 35, ss. 19—25; 22 & 23 Vict. c. 35, s. 29; 23 & 24 Vict. c. 38, s. 14. For form of order, see Seton, p. 147. ADMINISTRATION OF THE ESTATE, ETC. 257 or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets, or any part thereof so distributed, to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said aasets, or a part thereof, as the case may be ; but nothing in the present Act contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively." A personal representative who takes the steps pointed out will have the same protection as that afforded by an administration decree, and if he should have retained any legacies as trustee, after appropriating them for the benefit of the cestui que trusts, he wiU no longer be under any liability qu^ executor (5). It is lawful for any executors to pay any debts or claims upon any evidence that they may think sufficient, and to accept any composition or any security, real or personal, for any debts due to the deceased, and to allow any time for payment of any such debts as they shall think fit, and also to compromise,-compound, or submit to arbitration, all debts, accounts, claims and things whatsoever re- lating to the estate of the deceased, and for any of the purposes aforesaid to enter into, give and execute such agreements, instruments of composi- (S) Clegg V. Rowland, 3 E. C. 368. 258 EQUITY JtTBISDICTION. tion, releases and other things as they shall think expedient, without being responsible for any loss to be occasioned thereby,— 23 & 24 Vict. c. 145, s. 30. A form of ordering accounts and inquiries con- nected with administration is given in Schedule D. ( 259 ) CHAPTEE V. Chancery (Peocedtjeb) Amendment Act, 1858. Bt 21 & 22 Vict. c.«27, which is intituled An Act to amend the Course of Procedure in the High Court of Chancery-, the Court of Chancery in Ireland, and the Court of Chancery of the County Palatine of Lancaster, and which may be cited and referred to as the Chancery Amendment Act, 1858, it is enacted : — Sect. 2. " In all cases in which the Court of Chancery has jurisdiction to entertain an appUca^- tion for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, con- tract or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitu- tion for such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct." In Durell v. Pritchard(a),the Lords Justices held that the jurisdiction to grant damages rested in their discretion. In the Corporation of Hythe v. East {b), Vice-ChanceUorKindersleyheld, that, after a decree (a) 1 C. A. 244; cf. Johnson v. Wyatt, J. (63), 1333. (J) 1 E. C. 620. 260 EQUITY JURISDICTION. of specific performance of a covenant, an order for assessing damages for a breach was not to be added, being a supplemental decree upon facts which had subsequently occurred. In Lewers v. Earl of Shaftesbury (c), Vice-Chancellor Wood held, that damages being only in addition or substitution for specific performance, unless the agreement is proved, no damages can be given (, defendants. E.F. i BILL OF COMPLAINT. To the Right Honorable Frederic Baron Chelmsford, of Chelmsford, in the county of Essex, Lord High Chancellor of Great Britain, Humbly complaining showeth unto his lordship. A. B., of Guild- ford-street, in the county of Middlesex, gentleman, the above, named plaintiff, as follows : — 1. The defendant C. D., being seised in fee simple of a farm called , in the parish of , in the county of , with the appurtenances, did by an Indenture dated , and made between the defendant C. D. of the one part, and the plaintiff of the other part, grant and convey the said farm with the appurtenances unto and to the use of the plaintiff, his heirs and assigns, subject to a proviso for redemption thereof in case the defendant C. D., his heirs, executors, administrators or assigns, should on pay to the plaintiff, his executors, administrators or assigns, the sum of £ , with interest thereon at the rate of ag per centum per annum, as by the said Indenture will appear. 2. The whole of the said sum of £ , together with interest thereon at the rate aforesaid, is now due to the plaintiff. 3. The defendant E. F. claims to have some charge upon the farms and premises comprised in the said Indenture of Mortgage of the day of , which charge is subsequent to the plaintiff's said mortgage. 4. The plaintiff has frequently applied to the defendants C. D. and E. F., and required them either to pay the said debt, or else to release the equity of redemption of the premises, but they have refused so to do. 5. The defendants C. D. and E. F. pretend that there are some other mortgages, charges or incumbrances affecting the premises, but they refuse to discover the particulars thereof. 6. There are divers oak, elm and other timber and timber-like trees growing and standing on the farm and lands comprised in the said Indenture of Mortgage of.the day of , which trees and timber are a material part of the plaintiff's said security ; and if the same or any of them be felled and taken away the said mort- 276 SCHEDULES OF FORMS. gaged premises would be an insufScient security to the plaintiff for the money due thereon. 7. The defendant C. D., who is in possession of the said farm, has marked for felling a large quantity of the said oak and elm trees and other timber, and he has by handbills, published on the last, announced the same fur sale, and he threatens and in- tends forthwith to cut down and dispose of a considerable quantity of the said trees and timber on the said farm. Prayer. The plaintiff prays as follows : — 1. That an account maybe taken of what is due for principal and interest on the said mortgage. 2. That the defendants C. D. and &. F. may be decreed to pay the plaintiff the amount which shall be so found due, together with his costs of this suit, by a short day to be appointed for that purpose, or in default thereof that the defendants C. D. and E. P., and all persons claiming under thenl, may be absolutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant C. D. may be restrained by the injunc- tion of this honourable court from felling, cutting, or dis- posing of any of the timber or timber-like trees now stand- ing or growing in or upon the said farm and premises comprised in the said Indenture of Mortgage or any part thereof. 4i. That the plaintiff may have such further or other relief as the nature of the case may require. The defendants to this Bill of Complaint are CD. E.F. [^Signature of Counsel.} Note. — This bill is filed by Messrs. , of Brunswick-square, in the county of Middlesex, Solicitors for the above-named plaintiff. SCHEDULE F. Writ of Summons to be indorsed on the Copy of the Bill served. ViCTOKIA R. To the within-named defendants C. D. and E. F. greeting: We command you, and each of you, that within eight days after service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in our High Court of Chancery to the within-named bill of complaint of the within- named A. B., and that you observe what our said court shall direct. Witness ourselves SCHEDULES OP FOEMS. 277 at Westminster, the twenty-ninth day of October, in the thirty-first year of our reign. ' ..^""•~^^ you fail to comply with the above directions the plain - tin may enter an appearance for you, and you will be liable to be arrested and imprisoned and to have a decree made against you in your absence. ^ •' r.-^^'P^^,"""^^ ^™ *° ^^ entered at the Record and Writ Clerks' Udice, Chancery Lane, London. Solicitor, Brunswick-square, Middlesex. SCHEDULE G. Form of Interrogatories in a Foreclosure Suit. In Chancery. Between A. B., plaintiff, and C.DA & > , defendants. E. F.J Interrogatories for the examination of the above-named defen- dants, in answer to the plaintiff's Bill of Complaint. 1. Does not the defendant E. F. claim to have some charge on the farm and premises comprised in the Indenture of Mortgage of day in the plaintifi^s Bill mentioned ? 2. What are the particulars of such charge if any, the date, nature and short effect of the security, and what is due thereon ? 3. Are there or is there any other mortgages or mortgage, charges or charge, incumbrances or incumbrance in any and what manner affecting the aforesaid premises or any part thereof? 4. Set forth the particulars of such mortgages or mortgage, charges or charge, incumbrances or incumbrance ; the date, nature and short effect of the security; what is now due thereon, and who is or are entitled thereto respectively ; and when and by whom, and in what manner every such mortgage, charge or incumbrance was created. The defendant C. D. is required to answer all these interroga- tories. The defendant E. F. is required to answer the interrogatories numbered 1 and 2. [Signature of Counsel ] 278 SCHEDULES OF FOEMS. SCHEDULE H. Form of Demurrer. In Chancery, Between A. B., plaintiff, and C. D., defendant. The demurrer of C. D., defendant to the Bill of Complaint of the above-named plaintiff. The defendant by protestation not [confessing or] acknowledging all or any of the matters or things in the said Bill of Complaint contained to he true, in such manner and form as the same are therein set forth and alleged, doth demur to the said bill ; and for cause of demurrer shaweth Wherefore and for divers other good causes of demurrer appearing in the said bill the defendant doth demur thereto, and humbly demands the judgment of this honourable court whether he will be compelled to make any answer; and also prays that he may be hence dismissed with his costs and charges in this behalf sustained. \C(mnseVs sig'nature.'\ SCHEDULE L Form of Plea. Note. — Having given a demurrer to the whole bill, we now give a plea to a part, with answer to the residue. In Chancery. Between A. B,, plaintiff, and C. D., defendant [or defendants]. The plea of C. D., the above-named defendant to part, and the answer of the same defendant to the residue of the Bill of Complaint of the above-named plaintiff'. The [This] defendant by protestation not acknowledging all or ,any of the matters or things in the said Bill of Complaint contained to be true, in such manner and form as the same are therein set forth and alleged, as to so much of the relief as is sought in respect of the case made by paragraphs of the hill, and also as to all the discovery thereby sought, except the discovery sought by or in respect of , doth plead, an(l for plea doth say All which matters and things the defendant does aver to he true, and does plead in bar to so much of the bill as is hereby pleaded to, and craves the judgment of this honourable court whether he is compellable to make any further answer thereto, and prays hence to be dismissed with his costs [in respect of the part of the bill so pleaded to]. SCHEDULES OP FOBMS. 279 And for answer to the residue ^or excepted parts] of the bill, the [or this] defendant says, 1 [Counsel's signature.'] SCHEDULE J. Form oj" Answer. In Chancery. Between A. B., plaintiff, .. and C. D.-j & > , defendants. E. F.) The answer of E. F., one of the above-named defendants to the bill of complaint of the above-named plaintiff. In answer to the said bill, I, C. D., say as follows: — 1. I believe that the defendant E. F. does claim to have a charge upon the farm and premises comprised in the Indenture of Mortgage of the day of in the plaintiffs bill mentioned. 2. Such charge was created by an Indenture bearing date and made between myself of the one part, and the said defendant E. F. of the other part, whereby I granted and conveyed the said farm and premises,' subject to the mortgage made by the said Inden- ture of the day of , unto the defendant E. F., for securing the sum of £ , and interest at the rate of , and the amount due thereon is the said sum of , with interest thereon from the date of such mortgage. 3. To the best of my knowledge, remembrance and belief, there is not any other mortgage, charge or incumbrance affecting the aforesaid premises. W. G. l^Signature of Counsel.] Sworn by the defendant C. D., at before me, Y. Z., Record and Writ Clerk, [or A London Commissioner to administer oaths in Chancery, or A Commissioner to administer oaths in Chancery in England.] SCHEDULE K. Form of Replication. Between A. B., plaintiff, and C. D., E. F., G. H., &c. defendants. The plaintiff in this cause hereby joins issue with the defendant C. D. [aH the defendants who have answered or pleaded, or against 280 SCHEDULES OF FORMS. uthom a traversing note has been filed, or who have not been required to answer and have not answered the bilQ, and will hear the cause on bill and answer against the defendant £. F. [a/Z the defendants against whom the cause is to be heard on bill and anitwerl and on the order to take the bill as confessed against the defendant G. H. [a« the ease matj ie.] SCHEDULE L. Commencement of a Decree made at the Hearing of a Cause. Lord Chancellor, \pr Lord Justices, or Lord \ Justice , or Master of the Rolls, ]• [Date and titk.] or Vice-Chancellor ]. ) This cause coming [on the day of and] this day to be heard and debated before the Right honourable the Lord High Chancellor of Great Britain [or the Lords Justices, or the Lord Jus- tice, or the Right HonouraUe the Master of the Rolls, or this court], in the presence of counsel learned for the plaintiff and the defen- dants [or for the plaintiff and the defendants A. and B., no one appearing -for the defendants C. and D., although they were duly served with a subpoena to hear judgment in this cause, as by the affidavit of filed the day of appears], and the pleadings in this cause being opened upon debate of the matter and hearing [the said affidavit — enter all the evidence read, ^c] what was alleged by the counsel on both sides [or for the plaintiff and the said de- fendants], his Lordship [or their Lordships, his Honour, or this court] doth order and decree. SCHEDULE M. Form of ordering Accounts and Inquiries connected with Administration. This court doth order and decree that the following accounts and inquiry be taken and made ; that is to say, 1. An account of the personal estate not specifically bequeathed of A. B., deceased, and the testator in the pleadings named, come to the hands of 2. An account of the testator's debts. 3. An account of the testator's funeral expenses. 4. An account of the testator's legacies and annuities (if any) given by the testator's will. 5. An inquiry what parts (if any) of the testator's said personal estate are outstanding and undisposed of ? And it is ordered that the testator's personal estate not specifically bequeathed be applied in payment of his debts and funeral expenses in a due course of administration, and then in payment of the lega- cies and annuities (if any) given by his will. SCHEDULES OP FORMS. 281 If ordered. And it is ordered that the following farther inciuiries and accounts be made and taken ; that is to say, 6. An inquiry what real estate the testator was seised of or en- titled to at the time of his death. 7. An account of the rents and profits of the testator's real estate received by, &c. 8. An inquiry what incumbrances (if any) affect the testator's real estate, or any and what parts thereof. ff ordered. 9. An account of what is due to such of the incumbrancers as shall consent to the sale hereinafter directed in respect of their incumbrances. 10. An inquiry what are the priorities of such last-mentioned incumbrances. 11. And it is ordered that the testator's real estate be sold, with the approbation of the judge, &c. And it is ordered that the further consideration of this cause be adjourned and any of the parties are at liberty to apply as they may be adviseU. APPENDIX. An Act to confer on the County Courts a limited Jurisdiction in Equity (28 & 29 Victoria, c. 99).— TAe County Courts Act, 1867 (30 & 31 Victoria, c, 142). 28 & 29 Vict. c. 99.— Wiereas it is desirable to confer on the county courts jurisdiction in equity, be it enacted by the Queen's most excel- lent majesty, by and with the advice and consent of the lords spiritual and temporal and commons in this present parliament, assembled and by the authority of the same, as follows : — Sect. 1. The county courts held by -virtue of an Act passed in the session of parliament holden in the ninth and tenth years of the reign of her Majesty, chapter ninety-five, shall have and exercise all the power and authority of the High Court of Chancery in the suits or matters hereinafter mentioned, that is to say, — (1.) In all suits by creditors' legatees (whether specific, pecuniary or residuary), devisees (whether in trust or otherwise), heirs at law or next of kin, in which the personal, or real or personal, and real estate against or for an account or administration APPENDIX. 283 of which the demand may be made, shall not ex- ceed in amount or value the sum of five hundred pounds. (2.) In all suits for the execution of trusts in which the trust estate or fund shall iiot exceed in amount or value the sum of 500/. Constructive trusts are included (a). (3.) In all suits for foreclosure or redemption, or for enforcing any charge or lien where the mortgage charge or lien shall not exceed in amount the sum of 500Z. (4.) In all suits for specific performance, or for the delivering up or canceUing any agreement for the sale or purchase of any property where the pur- ■chase-money shall not exceed the sum of 500Z. " The jurisdiction maybe exercised in all suits for specific performance of or for the reforming, deli- vering up, or cancelling of any agreement for the ^ale, purchase or lease of any property where, in the case of a sale or purchase, the purchase money, or, in case of a lease, the value of the property, shall not exceed 500Z."— 30 & 31 Vict. c. 142, s. 9. (5.) In all proceedings under the Trustees Relief Acts, or under the Trustee Acts or under any of such Acts in which the trust estate or fund to which the proceeding relates shall not exceed the sum of 500/. " Any monies, annuities, stocks or securities vested in any persons as trustees, executors, ad- ministrators or otherwise, upon trusts within the (d) Clayton v. Eenton, 4 E. C. 158. 284 APPENDIX. meaning of 10 & 11 Vict, c; 96, an Act 'for better securing trust funds and for the relief of trustees,' where the sum does not exceed in amount or value the sum of five hundred pounds, upon the filing by such trustees or other persons, or the major part of them, to or with the registrar of the County Court within the district of which such persons or any of them shall reside, an affidavit shortly describing the instrument creating the trust according to the best of their knowledge, may, in the case of money, be paid into the Post Office Savings Bank established in the town in which the County Court is held in the name of the registrar of such court, in trust to attend the orders of the court, and upon such per- sons filing with the registrar the receipt or other document given to them by the officer of the said bank, the registrar shall record the same and give to them an acknowledgment in such form as may be directed by any rule of practice, which acknow- ledgment shall be a sufficient discharge to such persons for the money so paid : and in the case of stocks or securities may be transferred or deposited into or in the names of the treasurer and registrars of such court in trust to attend the orders of the court, and the certificate of the proper officer of the transfer or deposit of such stocks or securities shall be a sufficient discharge to such persons for the stocks or securities so transferred or deposited ; provided that where there is not a treasurer, a per- son shall be nominated by rule of practice, to whom the transfer or deposit, in conjunction with the re- gistrar, may be made "—30 & 31 Vict. c. 142, s. 24. APPENDIX. 285 " For the purposes of the last section all the powers and authorities given to the Court of Chan- cery by 12 & 13 Vict. c. 74, for the further relief of trustees, shall be possessed and exercised by the County Courts, and any order made by virtue of such powers and authorities shall fully protect and indemnify all persons acting under or in pursuance of such order."— 30 ^& 31 Vict. c. 142, s. 25. (6.) In all proceedings relating to the mainte- nance or advancement of infants, in which the property of the infant shall not exceed in amount or value the sum of 500/. (7.) In all suits for the dissolution or winding-up of any partnership in which the whole property, stock and credits of such partnership shall not exceed in amount or value the sum of 500/. (8.) In all proceedings for orders in the nature of injunctions, where the same are requisite for grant- ing relief in any matter in which jurisdiction is given by this Act to the county court, or for stay of proceedings at law to recover any debt provable under a decree for the administration of an estate made by the court to which the application for the order to stay proceedings is made. Sect. 3 with 30 & 31 Vict. c. 142, s. 8, provides for transfers of suits from a County Court to the Court of Chancery, and from the Court of Chancery to a County Court, Sect. 5 empowers a judge of a County Court to order any legacy or sum of money to which an in- fant or person beyond the seas may be entitled to be paid into the Bank of England in accordance with 36 Geo. III. c. 52, s. 32. 286 APPENDIX.' Sect, 18 enables aggrieved parties in suits or matters to appeal to the Vice-Chancellor appointed by 1jie Lord Chancellor to hear County Court appeals. Since the 1st day of January, 1868, a new code of rules, orders and forms for regulating the practice of the County Courts in Equity has come into force. ( 287 ) INDEX. Accident, 75 — 80. contract, unconditional, 75. effect of subsequent act of parliament on, 76. covenants to insure against fire, 76 — 78, death, apportionment on, 79. lost instruments, 79, 80. Accountant-general, 14, 208. origin of office, 14, 15. Accounts, when relief granted at common law, when in equity, 121. stated and settled accounts, errors, fraud, 121, 122. between solicitor and client, 122. infants, 172. Administration of the estate of a deceased person, 155—163, 254—256. land, its liability for debts, 155, 156. order in which property is applied in payment of debts, 156, 157. exoneration of personalty, 157, 158. specific and demonstrative legacies, 158. legal and equitable assets, 159. order in which debts are paid out of legal assets, 159. executor's title, 160—162. probate of will of realty, 160, 161. executor's duties and powers, 162, 163. procedure by bill, 253. motion, petition or summons, 254. procedure without applying in Chancery, 256, 282. Advancement, 57. Allegations in pleadings, mode of, 223. Answer, 236. Appeals in Chancery, 244. to the House of Lords, 245. Apportionment, 79, 80. 288 INDEX. Bankruptcy, 106—108. Bills, their extrinsic essentials, 220 — 227. their several kinds, 227 — 231. form, 275. (See also page 220.) Blackstone, Sir W., on Fraud, 176. Cancelling of documents, 248 — 283. Chancelloe, etymology, 2. creation of, 1. Vice-, 16, 17. Chambers, 208. Chancery, origin and history, 1 — 19. Charity, what is a, 68. history of jurisdiction, 66 — 72. visitor's power, 69. cypres,' 70. Mortmain Act and recent amending acts, 70 — 73. secret trusts, 72. ■ commissioners and other new jurisdictions, 73, 74i. Chief Clerks, 208. Coke, C. J., dispute with EUesmere, L. C, 12. Commerce, its history, 102 — 108. equity jurisdiction over, 108, 109. Commissioners to administer oaths in Chancery, 211. Common Law Courts, questions not to be sent to, 265. Compromise, 83, 202. Contracts, principles of, peculiar to equity jurisprudence, 109. for sale of land, 112—118. form, 112. rescission, 113. specific performance, 117. Conversion, 56. County Courts new equity jurisdiction, 19, 282. transfer of causes between Court of Chancery and County Courts, 285. Court of wards, 164. Cypres, 70. INDEX. 289 Damages, 257. Death, apportionment on, 79, 80. Debts, charge of, 51. Decrees, 208, 2+4. motion for, 242. Delivery and cancelling of documents, 248, 283. Defence to a bill in equity, modes of, 232—240. Demurrer, 232. • Dower, 90. Equality is equity, 21. Equities being equal, the law must prevail, 24. Equity follows the law, 22, 136. looks on that as done which is agreed to be done, 22. of redemption, 136. to a settlement, 97. Evidence, equity follows the law, 24. to rebut an equity, 51, 57, 58. in a suit, 240—242. facts to be proved, 240. mode of proof, 240—242. in cases of mistake, 86. Executor, duties, 162. power to sell realty, 39 — 42. title, 160. See Administration. Family settlements, 85. Forms of pleadings and other proceedings in suits and matters, 270—279. Fraud, generally, 175 — 176. concurrent jurisdiction, 177. classified, 179. I. Contracts generally, instruments, 179—183. powers, 183 — 186. II. Particular contracts, 186 insurance, 186. sale, 187- sale by auction, 187. O 290 INDEX. F R AU D — continued, II. Particular contracts — continued. reversionary interests, 188. principal and surety, 191. mortgagor and mortgagee, 192. marriage, 194. III. Particular relationships, 194—202. religious adviser, 195. guardian and ward, 198. IV. Rules of law, 200—202. composition deeds, 200. decree, 201. Hearing a cause, 243. House of Lords, appeal to, 245. Infants, court of wards, 1 64. chancery jurisdiction, 164, 16-3. leases and sales of land, 165. conversion of infant's property by guardian, 166. conveyance of mortgaged estates and of stock, 166. in infant's name by the court, 167. duties of parents, 167 — 169. maintenance, 169, 170. marriage, 169. guardian of the person, 170—172. accounts, 172. Injunctions, 247 — 253. interlocutory and final, 247 — 249. to stay irreparable damage, 248. to restrain proceedings in other courts of law, 249. applications to parliament, 252. Insurance, fire, 76. life, 186. Joint tenancy, 59, 60. ' Jointure, 90. Judgments, history, 149, 150. effect inequity, 150. of decrees and orders of equity courts, 150. charging order on stock and shares, 151. requisites as against purchasers, 152. petition for sale of land, 153. Jurisdiction, extent, 205, 206. INDEX. 291 Jury, trial by, 259—264. Legacies, charge of, 51. Lien, 147—149. vendor's, for unpaid purchase-money, 62. of trustee or agent, 147. solicitor's lien, 148, 149. Lords Justices, 17. Lost instruments, 79, 80. Master op the Rolls, origin and power, 15. Married women, equity doctrines generally, 89. dower and jointure, 90 — 93. separate estate and equitable powers, 93 — 97. equity to a settlement after marriage, 97—101. mortgage, 138. Maxims, 20—27. equality is equity, 21. equity looks on that as done which is agreed to be done, 22. equity follows the law, 22. where equities are equal the law must prevail, 24. where a legal advantage is gained against conscience it cannot be retained, 24. See also page 25. Mistake, 81—88. of law, of fact, 81—83. releases or compromises, 83 — 85. restitutio in integrum requisite to relief, 84. family settlements, 85. parol evidence, 86. rectification of instruments, 87. Mortgages, sureties, 127. pledge or pawn, 128, 129. equitable mortgages, i29, 130. legal mortgages, 130. conditional sale, 130. remedies of mortgagor and mortgagee, 132 — 136. interest only allowed, 136'. nature of equity of redemption, 136. sub- mortgages, 137, 138. mortgage of wife's property, 138. payment, &c., by tenant for life or reversioner, 139. power to mortgage, 39—42. powers to raise money, 140. powers to sell, give receipts, insure and appoint receivers, 140-147. o2 292 INDKX. Mortmain Act, 70. Motions, 215. Notice, actual, 61. constructive, 61. registration acts, 62. Officers of the court and their duties, 207 — 213. See also page 203. Orders, general. Consolidated — I. rr. 1— 16j 17— 33.. 208. II. .. 211. III. .. 213. VI. rr. S— 12..216. XVII. r. 2..210. XVIII. .. 242. XIX. .. 242. XXI. .. 244. XXIII. .. 208. r. 8.. 80. rr. 25— 28.. 246. XXXI. .. 244. XXXIlI.rr. 4— 9..243. XXXV. r. 1 . . 209 . rr. 7, 9, 26, 4 and 29, 32.. 214. 215. r: 13.. 136. XXXVI. ..216. XL. ..212. XLI. rr. 10-13.. 74. rr. 26— 52.. 264. XLII. r. 5.. 251. February 5, 1861.. 242. October 6, 1866.. 243. Parties, 221. Partnership, form of contract, 123. as between the partners, 123. specific performance, 1 24. dissolution, accountSj conversion, profit, 126. with respect to strangers, 126. Pawn, 128. Petitions, 216—219. by judgment creditor for sale of land, 15.3. by trustees, 217 — 219. INDEX. 293 Plea, 233. Power, coupled with a trust, 53. equitable, 93. to raise money, 140. to sell, give receipts, and appoint receivers, 14'0 — 11-7. Prayer of a bill, 224. Purchase-money, lien for, 62. Reforming agreements,''87, 283. Registrars, 208. Releases, 83. Sale, power of, 39 — 42. Satisfaction, 25, 51. Secret trusts, 72. Solicitors, 122, 148, 212. Special case, 247. 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