I

UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY

TREATISE
ON THE

PRINCIPLES AND PRACTICE

OF THE

HIGH COURT OF CHANCEJtY;

UNDER THE FOLLOWING HEADS;

I.

COMMON LAW JURISDICTION

OF THE CHANCELLOR.

II.

EQUITY JURISDICTION OF

THE CHANCELLOR.

By

III.

STATUTORY JURISDICTION

OF THE CHANCELLOR.
IV. SPECIALLY
DELEGATED
JURISDICTION
OF
THE
CHANCELLOR.

HENRY MADDOCK,

Esq.

OF LINCOLN'S INN, BARRISTER AT LAW.

IN

TWO VOLUMES.
VOL.

I.

LONDON:
PRINTED FOR W. CLARKE AND SONS. LAW BOOKSELLER*,,
PORTUGAL-STREET, LINCOLN'S INN.

1815.

\815

W.

Flint, SI. Sepulchre's, l.ondo*.

TO

THE RIGHT HONOURABLE

JOHN LORD ELDON,

BARON ELDON, OF ELDON,

IN

THE COUNTY OF DURHAM,

LORD HIGH CHANCELLOR OF THE UNITED KINGDOM,

THE FOLLOWING TREATISE,

!S

RESPECTFULLY INSCRIBED.

7U077O

PREFACE.

J.

HE

following

leisure hours

from

duty

of

Work

is

the result of the

several years.

Desirous

and inclination, to acquaint

myself with the principles and practice of

the Court of Chancery, I resolved, early
in

my

professional studies, to read

all

the

Chancery Reports of reputation and authority, beginning with the most modern, and
concluding with the most ancient. This
course of reading I pursued always with my
pen in my hand, extracting the principles
and the practice, as I read, and arranging
them under such heads as seemed the
most natural and convenient. This is the
secret history of the design and execution of this

Work, which was

tended only for private use.

taken an easier course

originally in-

might have
might have apI

plied myself to the treatises, several of them

able ones,

many of

which have been written, on

the subjects of the following

Work,

and have made a compilation of compila-

PREFACE.

VI

was repugnant to my feelings,

being neither satisfactory, nor just.

tions; but this

as

To

collect a multiplicity of particulars

under general heads, and to

refer a variety

common

of operations to their

principle,

has been justly observed to be the object

of science

but

if it

were true, that the

Chancellor in the exercise of

tion,

acted only, as

is

his Jurisdic-

vulgarly supposed,

according to an unbounded discretion, nunc

severius,

expedire,

nunc mitius agendo prout xiderint

it

would be a

folly to

attempt to

systematise the doctrines of the Chancery;

for

what would be the use of principles,

if

they were of so fluctuating a nature that

Chancellors might regard or disregard them
as they

thought proper

In respect to

Court does, indeed, from necessity, use a discretion, and it is the most
painful part of its duty but in other respects, the system of our Courts of Equity
is a laboured connected system, governedby
established Rules, and bound downhy
precedents, from which the judges do not
depart, although the reason of some of them
may, perhaps, be liable to objection.
In cases of Trust and of Fraud, Chan-?
costs, the

cellors,

it is

true,

have been unwilling to set

bounds to their jurisdiction, and say how

"

"

PREFACE.

Vll

Jar, in cases of that description, they will

go

yet so

they have gone, the prin-

far as

down, are binding authority.

There are, " says Lord Redesdale, "

ciples laid
**

cer-

tain principles on which Courts

of Equity act,
The cases which

which arc very well settled.

occur arc

various

fixed principles.
this respect

hut they

Courts

are

decided

of Equity have

on

no more discretionary power than

Courts of Law.

They decide new cases as they

arise by the principles

on which former cases

have been decided, and

may

thus illustrate or

enlarge the operation of those principles

the principles are as fixed

and certain

but

as the

principles on which the Courts of Common

Law

proceed*
If Chancellors were not guided by Prece-

dent, there ought to be

cery.

fifty

decided point

cussed, but

if

is

affairs

now never

dis-

Precedents were of no avail,

each case must be argued on

and the

Courts of Chan-

of

first

principles,

mankind could not be

carried on.
It seldom happens that a case comes before

the Chancellor unaffected by previous decision:

one, I remember, before agreat Judge,

and he begins

his decision

had doubts upon

*

Bond

v.

Having

Wilt for twenty years.

this

Hopkins,

by saying,

Sen. and Lefr. 428, 9.

PREFACE*

VU1

Had

<$*c."

there been eases in point, that

eminent Man, equal to

and superior to

ar.y,

most of his Predecessors, would have decided

in five minutes, what he had been twenty
years doubting upon.

Lord Nottingham, disapproving of some

some warmth

cases cited to him, said with

ie

Law

that he xcoutd alter the

in that point

;'*

but Lord Talbot, when this saying was mentioned to him, observed, " I do not see how
any thing less than an act of Parliament can
" If," said his Lordship,
alter the Law ? "
" the

Law

as

convenient,

it

it

now

will

be a good reason for the

Legislature to alter

Law

stands, be thought in-

it

but

till

that

is

done,

must take place ."

In the Case of Fry and Porter Lord Ch,
J. Vaughan, who was called in to the assist^
ance of the Chancellor, said " he wondered
what

is

11

at present

',

to hear

of citing of Precedents in matter

of Equity

that Equity

for if there be
is

Equity

in a case,

an universal truth, and there

can be no precedent in

it

so that in

Precedent that can be produced,

if it

any

be the

same with this case, the Reason and Equity

is the same in itself; and if the Precedent be
f

rV'rmnnv. Goo'Uiam, Ch.

Rtep.
*

II

Wms.

41

J.

h
*

?.ft.

v.

Stamford, 3 P.

lb,
1

Mod.

Leach,

p. 300. Edit,

by

PREFACE.

IX

not the same with this case, it is not to be

cited, being not to that purpose;" but tin

Lord Keeper Bridgman vindicated the

of Precedents. " Certainly," says he,

'

use

Pre-

cedents are very necessary and useful to us,

for in them we may find the reasons of the

and besides, the authority of those who made them, is much to be

regarded. We shall suppose they did it
upon great consideration, and weighing of
the matter; and it would be very strange, and

Equity to guide

very

ill

us,

if we should disturb

and

set aside

what

has been the course for a long series of time

and ages" L. C. Baron Hale said, " I know

there is no intrinsical difference in cases by
Precedents
in a case

but there

wherein a

where a man

is

Man

sees, (and

is

a great difference
is

to

make, and

to follow) a Pre-

cedent: in the one case a Man is more

strictly bound up, but in the other he may

take a greater liberty and latitude; for if a

Man be in doubt, in a'quilibrio, concerning a
case,

whether

it

be equitable or no, in prudetermine according as the

dence he will
Precedents have been, especially if they
have been made by Men of good authority
for learning, &c. and have been continued
or pursued."

One

is

little

surprised at an expression

PREFACE.

Lord Northing ton's, upon a Precedent

quoted before him, a decision of Lord Hardof

wicke. " If is." said he,

"an authority for the

Master of the Rolls. But I feel only one
air hority, that of the House of Lords, which
is a

superior Court

anv influence on

He is

no other authority has

my Judgment

14

."

Re-

the only Chancellor, since the

volution,

who

has used such Language.

was the expressed opinion of Lord

It

Macclesfield, never to shake

any settled re-

solution touching property, or the Title of

Land

it

common good

being for the

that

these should be certain and known, however

ill

grounded the

As to

first

resolution might be'.

inconveniencies,

if

the

Law is

clear,

they afford no argument of weight with the

Judge.

The

them they
;

Legislature only can remedy

are properly considered only in

a case where the Court entertains doubts

Often

is

Judge, even

".

Court of

in a

Equity, compelled to exclaim, "

yield to

the authority, but not to the reason of thq

Cases"."
It was the opinion of

k
Attorney General against
Tyndall, Ambl. GIG.
Wagstaffv. Wagstaff, 2 P.
Wins. 258,9.
m Pike against Hoare, Ambl,
1

Lord Thurlow, that,

and see what is said in

430
Sparrow v. Hardcastle, Ainbl.
227. and in 2 Atk. 560.
bee 2 Bro. C. C, 80.
;

*>

PREFACE.

"

for the

\l

purpose of securing properly, and

the due administration of Justice in a free

country, judges ought to abide constantly

by

real

Rules

principles,

and by such beneficial

may

some reasonable

as

afford

ment without applying

.judg-

a superior

to

tri-

,,J

bunal \

No man

criticised

more upon Rules

laid

down by other Judges, than Lord Thurlow ;

but no man was more rigid in observing
them when he could once deduce them >\
Thesame observation may be made of Lord
Eldon. Nobody criticises judgments more,
or sees more clearly the wisdom,
errors of his predecessors

or

the

but no one has

adhered more pertinaciously to established

Rules.

From many

considerations one might ex-

pect that the Court of Chancery would ex-

The Chan-

hibit an almost perfect system.

cellor always

is,

and must

be,

of transcen-

His Decisions are not, neinstantaneous he may take what

dent talent.
cessarily,

time he pleases to decide; no hasty, ofthand, nisi priiis opinion, is required of him.

Such

are the subjects

cides, that

Rro. C. C.

"

See what

all

upon which he de-

party prejudices
Alvanley

4C,->.

in

and pasHinchliffe

v
;

is

said

by Lord

Hinchlrffe, 3 Yes. o'-7.

PREFACE.

Xll

They are
come be-

and influence are excluded.

sions

only questions of Property that

No

he Chancellor.

fore

Prosecu-

State

Misdemeanors in a word, no question which involves Punishment, or where Damages are

no Treasons, no Libels, no

tions,

sought, ate brought before the Chancellor's

Tribunal

so that his Decisions are sub-

ject to no

undue

bias of

any kind. There

when the Court

the Chance.lor, in what way to

was, to be sure, a time,

wrote to
decide

been

at

but

this

an end.

abuse has long, very long,

No

to perfection where
Professors, to

keep

Science will ever

it is

the Interest of the

impe,rfect

it

come

but what

Interest can our Chancellors have, in keep-

ing the Chancery System imperfect, and to

what

is

to be

Distinctions
ft

ascribed

such a variety of

General Rules are easily framed, but the

application of

them

creates considerable

which the Rule isnot sufficiently comprehensive to meet each

circumstance, which may enter into and
difliculty in all cases in

affect the particular case :"

hence, distinc-

tions unavoidably arise.

Some of

these niceties, have arisen from

the pride of Intellect

excites

that pride,

which

minds to triumph over their Pre-

PREFACE.
decessors in Office

to

XI11

shew their

errors,

and establish wiser systems than those they

But while each Chancellor

thinks for himself, they seem to forget man-

constructed.

kind

they shew themselves wiser perhaps

than those who went before them, "plus

sages que

but by their

sages"

les

ences, they bewilder the

{Suitor,

differ-

who only

wants some certain Rule on which he

may

rely.

Another cause of the magnitude of the

Chancery System, arises in a great degree,
from what is, certainly, a noble error, the
humanity of the Chancellors. To help an
individual hardship, ageneral inconvenience
is

often occasioned;

the

Law

is

strained,

and ingenious distinctions are created.

I flatter myself this Work will prove
useful to all ranks of

the Profession, and

more

young Student.

especially, to the

We have,

it is

true,

detached Treatises on

equitable Subjects,and also the Reports ofthe

Proceedings in Courts of Equity, which, cer-

many

tainly, are so

Principles

but

rich

Mines of equitable

be expected that
a young Student, warm with the fascinating charms of the Classics, and the gene-

tfous

Studies

is

of

it

to

the University,

should
read with any patience, a variety of Treatises,

and pore over a long

series

of vo-

PREFACE.

XIV

luminous Reports, before he has imbibed

some elementary Principles on the Subject,

and obtained some sort of cine to the vast
labyrinth

before him.

Blackstonc in

his

Commentaries alludes occasionally to our

Courts of Equity but his Treatment of
the subject, though much to be admired so
far as it extends, must yet be allowed to
afford a very trifling knowledge of the prin;

one of

ciples of Equity.

It

the most deficient

parts of that excellent

He has

Work.

is,

in truth,

an admirable view of

oriven

part of theLawsof England, and particularly

Common Law but we look in vain

that unrivalled Work for any detail-

of the
into

ed information relative to the Principles

and Doctrines of the Court of Chancery.

What

little

Blackstone

there says of the

Court of Chancery is sketched with admirand fortunate

able spirit and correctness
had it been, if such a genius had been applied to analize and unfold the principles
;

of that Court.
11

the

is

first

reduce

very surprising that this should be

attempt that has been made to

into

one comprehensive view,

all

the Doctrines of the Court of Chancery.

Lord Nottingham, who has been called

" the Father of Equity," appears to have
planned, and

partly to

have executed a

PREFACE.

Work

of this description

XV
but he lived

in

the infancy of the Science.

It

seems to have been the general opi-

nion, that sueh a

Work

opus desperatum

but the more we

the

more we

shall

was impracticable,

be

convinced,

the Doctrines of the Court of

are

reflect,

reducible into System.

that

Chancery
Before the

time of Sir Matthew Hale, the Common

Law was considered as incapable of being
reduced into System, by reason, it was said,
of the indigestedness of
plicity of the Cases

and the multibut Sir Matthew Hale

it,

was not of that opinion, and he immediately began his famous Analysis, and fully shewed he had reason to be so.
On
the foundation of that Treatise, Blackstone
built his immortal
it

Work. In

seems to me, that

all

like

manner,

the proceedings in

the Court of Chancery are referable to some

fixed principles;

and are

as

capable of being-

treated of systematically as the

Common

Law.
Lord Nottingham observes of Sir
Matthew Hale, that he looked upon Equity
as part of the

Common

the grounds of
as

it,

Law, and one of

and therefore

as

he could, he did always reduce

near
it

to

Rules and Principles that men

might study it as a science, and not think
certain

PREFACE.

XVI

the administration of
bitrary in

it

had any thing ar-

it ".

The Lex Pretoria

of Ch. Baron Gilbert,

of which I have a copy in manuscript

the

by Mr. Ballow and the

Principles of Equity by Lord Kaims, have
each their respective merits but neither of
them exhibits that arrangement and comprehension which the subject seems of
deserve, and require.
The hex Pretoria is a very confined and
Treatise of Equity

unfinished sketch.

The work,

entitled, Principles

too theoretical,

is

of Equity ,

and founded more on

Scotch Law, than on the decisions of English

Courts of Equity, and has never been looked

up

Equity,

many

The

an authority.

to as

a masterly work, and possesses too

is

excellencies to be hurt

criticism

Treatise on

but with

all

its

by any

merits,

be confessed to be not sufficiently

little

must
compreit

hensive or methodical, and like the other

works

have noticed, unavoidably deficient

in the information to

be gathered from the

modern Reports, by which the doctrines of

the Court of Chancery have been so much
illustrated

and enlarged.

See Burnet's Life and

Death of Hale, p. 170. The
great man mentioned by the
1

Mr. Fonblanquei

Bishop in 172. was Lord Nottingham.

PREFACE.

XV11

the Editor of the last-mentioned Work, has

up to the period at which he wrote, nine-

died one of

its

defects,

the modern decisions

by

his references to

but his notes, learned,

useful and able as they are, are unavoidably

desultory and unconnected, and have ren-

more glaring the remaining deIf the

ficiencies of the original Work.
Editor's delicacy had permitted him to
recast the whole treatise, we should, probably, have been furnished with a complete
such as might be expected from
work

dered

still

and long experience.

his great abilities,

From

on which this treatise

have had occasion to

the plan

was composed,

borrow but little from the works I have

mentioned none at all from Lord Kaims's
work and in those few instances where I
have received assistance from them, or from
,

other Works,

have acknowledged the

obligation.

The

first

object of every student ought

to be to study
trines of his

the elements of the doc-

Art,

and

in

almost

the

all

such Works aie to be found,

" Whosoever," says Lord Chancellor Fortescue r a " desires to get a competent under-

Sciences,

standing in any

by

faculty

or science,

means be well instructed

all
'

FortesLue

de

Laud. Ang. Cb,

C

S.

must
in the

PREFACE.

XV111

Principles thereof;

the Principles

by reasoning from

for

which

are universally ac-

knowledged and uncontested, we arrive

length at the

whoever

final

causes of things

ignorant of these

is

Principles, Causes, and

Science,

must needs be

so that

three,

are

known

known,

too, at

the

least

the

Elements of any
fatally ignorant

the Science itself; on the other hand,

these

at

Science

in general

when

itself

and

of

is

in the

main, though not distinctly and complete5

ly.'

All those vast frightful volumes, termed

Reports, would no longer appal the Student,

he had but a guide, in the mighty maze

if

before

from

him
first

for cases are

principles

but corollaries

they

are proper

enough, nay indispensable, as works for occasional Reference, but are wholly impro-

per to be

studied as elementary

Books.

Without method, though full of various

knowledge, to use the Language of the
Institutes, " they cause the

Student either

wholly to abandon his Studies, or bring him

late

through a

knowledge

of labours to that

series

which

might otherwise
have attained with ease and expedition*."
x

s.

Just. Instit. Lib. 1. Tit. 1.

2.

I cannot here deny myself

the pleasure of remarking hot?
greatly the profession i* in-

debted

to

Mr. Vesey,Jun.

for his

he

Reports of Cases in Chancery,

for a series of years.
Thej are
for
the judgment
t>hewn in the selection and for
their extraordinary tidelity and,
exactness.

valuable

PREFACE.

Xix

Unless the principles of Chancery Science

are mastered,
cation,

requires incessant appli-

it

and a stupendous memory to re-

tain every particular decision

but when

once the principles are thoroughly acquired, the

application needs not be so inces-

and the memory, without any extra-

sant,

ordinary

effort,

recal, as occasion

may

up and
every im-

store

easily

will

require,

portant case which has been presented to

the mind, either

"

am

by reading or experience.

inclined to believe," says an accu-

rate observer of the

human mind, " both from

a theoretical view of the subject, and from my

own

observations, as far as they have reach-

ed,

that

if

we wish

the particulars

to fix

of our knowledge very permanently in the

memory, the most effectual way of doing

."
it, is to refer them to general principles
In the execution of this Work, I have
y

confined myself
matters, which

the consideration

to

exclusively

fall

of

under the

cognizance of the Chancellor, or concurIt is

rently with other Courts of Equity.
true,

that a question of mere

Law

is

often

discussed in Courts of Equity, and this

frequently
y

is

necessary, before equitable re-

Stewart's Elements of tTie

Human
of the

Mind,

Philosophy

c 2

p. 425.

PREFACE.

XX

be administered

can

lief

such points

arise,

but whenever

the Chancellor follows the

Law, and such points

are

determined, in

conformity with the decisions of the

mon Law

Courts.

But though such ques-

tions do often collaterally arise,

every point of

Law

Com-

is

and almost

occasionally brought

and our Equity Reports

abound with them, yet I think it unnecesinto discussion,

sary to detail the Principles of the decisions

of

and

points

of Law,

reasons.

Because,

Chancellor on

the

this,

for several

though the opinion of the Chancellor even

on a point of Law, must always be looked

up

to

with great respect, yet, certainly,

such points are decided with more of weight

Common Law

the

in

Courts,

since the

Judges are numerous, and their studies have

been peculiarly devoted to the learning on
such subjects. The opinion of the Chancellor

on a point of
in

Common Law,

cannot be put

competition with an express decision of

the

Common Law

ject.

It

is

Courts on the same sub-

therefore to the decisions of the

Common Law

Courts, that reference should

be made, on such points.

Indeed,

if

the

any doubt on a mere point

Chancellor

lias

of Law,

the point has not been clearly

settled

if

by

Common Law

determinations,.

PREFACE.
it is

XXI

Court
opinion; and though

his constant habit to refer to a

of Common

Law

for its

Chancellor

the

speaking,

strictly

is

not

upon the answer of a Court of

bound

to act

Law %

yet that opinion always governs the

Chancellor

a plain proof this of

eminent authority

in

its

Common Law

pre.Sci-

ence.

Of questions

of

Law

the Judges are the

" If," says the

sworn and proper Judges.

Lord Keeper Bridgman, who had called some

of the Judges to his assistance, " I were of
another opinion, yet I would be bound by
the opinion of my Lords the Judges ."
In a case in which Lord Hardwicke had
received the opinion of a Court of Common Law on a case sent by him, he ob3

served, " I shall not send

it

Law

again to

and however I might have doubted, if I had

sat in the King's Bench, on the argument in
point of Law, yet I shall not depart from
the opinion of those learned Judges

And

in

."

another Case, where the Chan-

had called upon some of the Judges

to assist him in a case before the Court, he
observes, " If I had even now a doubt concellor

UVes.
*

SI 3.

32.

Fry and Farter,

Mod.

fikins agnins*

A rub!,

lb-3.

Macklish,

PREPACEc

XXII

cerning

it,

should have held myself bound

by the opinion of the Judges

a matter

as

within their conuzance, in like manner, as

if I

had sent

which

this to be

ease, the

Law,

tried at

in

Court always decrees con-

sequentially to the Trial

."

this of the

binding

Courts of

Common Law upon

plain proof

effect of the decisions

of

Chan-

the

cellor.

To

introduce questions of pure

Law

in

on Equity, renders the work incapable of system, confused, and irnmethodical, and is an amalgamation which serves-

treatise

only

embarrass the reader.

to

believe,

It

is,

one of the principal causes that

Equity
I have
Principles to system and method.
therefore, as much as possible avoided any
has

obstructed the reduction of

notice of

Common Law

doctrines

ensuing work, and must refer

to

Common Law

My
work,

my

in

the

readers

writers, for such learning.

was to prefix to this

View, of the Rise and

original design

An

historical

Progress of the Chancellor's Authority ; conceiving it be a natural and proper introduc-

The enquiry, cost me great Labour,,

and much antiquarian research; but as I
tion.

See Chesterfield

v.

Janson,

2 Ves. 15^. and what Lord

Eldon says

in

Dashwood

Peyton, 18 Vea. 97.

v*

PREFACE.
bad mixed with
Chancellors

it,

the

XXlii

characters of the

the anecdotes concerning them

connected with the administration of Justice

the various disputes

Chancery

the progress from arbitrary dis-

cretion to fixed Rules

Jurisdiction

Writers

ments

respecting the

a vindication of the

from the cavils of various

a suggestion of possible improve-

and other matters incidentally relating to it my materials extended so much

beyond what I originally intended, a short
;

dissertation, that they amounted to a volume

and

as inquiries of this description are suit-

able only to the taste of a few, and the publication

would

have

very
considerably
encreased the size and price of the Work,
without contributing much to its utility,
I

dropped

this part of

my

design,

though

not without some reluctance, as the subject

was a favourite one.

Many persons

have conceived a prejudice

against the Court of Chancery, and have considered it, as an huge overgrown excrescence,

which called

for the

Legislature

but this

pruning knife of the

is
the lan^ua^e of

presuming ignorance. Some defects it has;

the machinery of the great System has, till
lately,

after

been too slow

in

its

motions

contemplating the System

but

in all its

PREFACE.

XXIV

parts, visiting its foundations, and

its benefits,

it is

in

\\

itnessing

my humble apprehension,

a most beneficent system, and of unpar-

wisdom and

ralleled

occasionally,
ciples

all

utility

exhibiting,

subtlety of the dis-

the

of Loyo-la, but employing

to aid

it

the sacred cause of Justice,

To some, the numerous citations of cases

may seem like an ostentation of reading;

Man

but every professional

is

fully aware,

that the greatest merit in a legal Writer

will

not compensate for the want of cases

in support of his positions.

In an English

Court of Justice, the veriest dolt that ever

stammered a sentence, would be more attended to with a case

with

all his

thorities

in point,

than Cicero

eloquence, unsupported by au-

and

it is fit

it

should be

how, otherwise, can Law be, what

to be, a certain Rule of Conduct.

Old Buildings, Lincoln 's Inn,

Nor. 1.1814.

so,

it

for

ought

TABLE OF COxNTEXTS.
VOL.

CHAP.

I.

COMMON LAW JURISDICTION OF THE CHANCELLOR.

P

(1

mission of the Officers of the Court

Proceedings in the Petty

Ordering Writs

to be

Bag

made

Office

ge.

ib. etc.

out by the Cursitors

Original Writs returnable into the King's Bench

or

Common Pleas

Supplicavit

.11

12

Writs of Error
Quashing and superseding of Writs

15, etc.

Writ of Replevin
Writ de Cautione admiltanda
.

.18

Writ de homine replegiando

19

14

.It

CHAP.

ib.

Removal of Coroners

18

Writ of Melius inquirendo

Teste of Original Writs
.

14

Patents

10

Writ of Certiorari
Writs of Prohibition

Writ de Ventre inspiciendo

II.

EQUITY JURISDICTION OF THE CHANCELLOR

221

ACCIDENT AND MISTAKE,

/.

Accidents, relieved against

Lost

Bonds and Deeds

VOL.

I.

&

22

82,

eh

XXVI

TABLE OF CONTENTS.

TABLE OF CONTENTS.
prevention of praud.
To restrain

\\\\i

Continued.
the infringement

Page.

of Patents 113

To stay Waste
To restrain .sale of Books and printed
Music or Prints
To restrain Assignment of negotiable
.

Securities

To

hy

115

123

127

restrain in other Miscellaneous Cases 129

Bills of Peace

TABLE OF CONTENT^.

XXVlii

Page.

FRA CD.

Coiii in ued.

In Insurances

Verdict

In

234

236

In Judgment

In Decree

ib.

Assignment of Dower

Cto

Me Zaa?

Custom

244

Jointure

of'

247

252

execut ion of Deeds

Fraudulent Devises

Enabling another

By destroying

251

London

By prevention of

Employing

243,

appointments under Powers

On Power to
0>z

240, etc.

influence

i? V illusory

238

On Covenants
Undue

237

In Probate
//?

ib.

to

253

commit a Fraud

256

257

or concealing Deeds

Puffers at Sales

257

Purchasing with notice of an unregistered

Conveyance

260

Form

261

of Relief in Cases of
INFANTS.

Authority of Chancellor over

Custody of when taken from Parent

Guardianship of
.

262, 263

263, 264

Maintenance of
Marriages of Infant Wards of Chancery
Agreements of, before Marriage
.

Infant Trustees
SPECIFIC

262

271

282

ii.

558

PERFORMANCE OF AGREEMENTS.
286

Origin of the Jurisdiction in these Cases

Effect of a Contract in Equity
Vhen specific performance decreed

Specific

ib.

vol.

performance of

288

287

Contracts for

Chattels, in general refused,

295

Stat. 29 Car.

298

2. c. 3. 8, 4.

What a signing under

this

Statute

ib,

TABLE OF CONTEXTS.

XXiX
Pag..

performance of AGREEMENT.

specific

Agreement respecting Lands

Parol

where /here has been a

enforced,

pari performance

What

Continued.

is

299, 300

considered a pari performance

303

Whether Agreement for a separate maintenance is enforceable

305

Parol Agreement for a Partition

309

Specific Performance of Covenants

to

renew a Li

to

procure Wife

to purchase
to settle

312

309

to

acknowledge a Fine 310

Lands

313

a particular Estate

ib.

Specific Performance of Direction by IVillto

lay out

When

specific

Money

purchase of Land

in the

Performance refused

Agreement

to

build

to refer to

319

316

Arbitration

320
321

Concealment,

Fraud, Surprise, Mistake,

Misrepresentation, or other unfairness, a

ground

to resist

a specific Performance

a parol waiver of
Illegal Agreement

So,

the

Agreement
.

325

Voluntary Agreement

ib.

328

Because Agreement a breach of Trust

Where there are Laches

328

Because Plaintiff" has failed

his part of (he Agreement

Where
with

Felony

to

321

323

perform
.

331

Misconduct in party

or

whom Agreement has been made for

a Lease

Or Insolvency

332

333

Because of Elopement or Adultery of Wife,

seeking a specific Performance of Articles for

a Jointure

Public Policy a ground

fie

Performance

332

to

resist
,

a sped'

TABLE OFCONTENTS.

XXX

Page.

SPECIFIC

PERFORMANCE OF AGREEMENT.

Continued.

335

Agreement signed by one Party

Inadequacy of Price

336

Want of Certainty
Want of Title

ib.

341

Of Compensation

342

356

Incidents to a specific Performance

208, 212,282

Reference of Bill for

TRUSTS.

Trusts described

Articles before

353, 359

Construction of

360

Marriage

50, 360

Fine affecting

Recovery

361

ib.

Power of Cestui que Trust over Trust Estate 362

363

Potcer of Trustee over Trust Estate

Express, created by

Deed

365

Marriage Settlement

in

366

in Conveyances to Purchasers

406

way

of Mortgage or
otherwise for Payment of Debts
412
in Assignments of Choses in Action
433

in Conveyances by

Created by Will

437

441

of Wills
Devises on, for payment of Debts and Le-

Rules in

the Construction

Vol.

gacies

Executory

ii.

480, etc.
440, 445

Vindication of Lord Hardwicke's Doctrine

in

Bagshaw and Spencer

Implied

Arising

out of
Administrator

Office

466

of Executor

or

466

Administration of Assets
t

451 etc.

466, etc.

or personal, legal or equi-

473
1

Payment of Debts

2.

of Legacies

474
ii-

TABLE OF CONTENTS.

VOL.
TRUSTS.

XVXi

II.

Contin ued.
Page.

Jurisdiction in cases of Legaoie*

Causti mortis

Donatio

Specific

Vested

Lapsed

.12

19

Conditional

24

When Legacy satisfaction

When Legatee put to an election

33

,.

To Charity
Interest

on

.64

Accumulative

Ademption of

.74
'*

Of Residue

81

Abatement of
By purchases

93
97

name of another
with
notice of a Trust
purchases
By
in

Lien of Vendor
Resulting

0i>

97, 107
1

J3?/

Trustees or Executors

J3?/

Governors and others of a Charity

Trustees

to

103
1

Breaches of

Allowances

40
49

129, etc.

Removal of Trustee

ib. etc.

131

133

CHANCERY PRACTICE.
how commenced
Frame of Bills
Suit

Letter missive
%

'

and Subpoena
.

135
ib. etc.

Parties to Bills

Appearance

ot>

bJ

TABLE OF CONTENTS,

XXXH

chancery practice.

Page-

Continued.

Motions after Bitt filed and before Answer

For an Injunction

a Receiver

187

199

206

for a specific Performance

For a reference to see if two Suits are for

same purpose

to

213

swer separately

215

defend in formd pauperis

For security for Costs

To amend Flea

216
ib.

212

may an-

That a Defendant a Feme Covert

For leave

ib.

a Bill

refer a Bill of Foreclosure, or

the

202
208

answer

199

reference of Title
to

187,223

To amend Bitt
To take Bill pro confesso
To examine Witnesses de bene esse
For payment of Money into Court

To

182

For time

172

a Writ of Xe Exeat
a Guardian

For a

170

220

To slay Proceedings till cross bill answered 221

To refer Bill for Scandal or Impertinence 221
For leave to withdraw a Demurrer
ib
For a

lieference to see if Suit

is for the
an
Infant
224
of
That Answer may be taken without Signature ib.
Demurrer
ib.

benefit

Plea

Answer

'

235

259

Replication and- Rejoinder

275

Motions after Demurrer; Plea or Answer, and

before Decree

273

such as,
to refer

nence

Answer for Scandal or Imperti.

277

TABLE OF CONTENTS.

XX\..i
Page.

chancery PRACTICE.

Continued.

Thai Plaintiff may

elect to

or in Equity

For a Reference as

280

to Title,

on a Rill

for a specific performance

282

an Injunction
For amendment of Pleadings
To dismiss Bill
To

Law

sue at

dissolve

282

286

295

For product ion of Deeds, <S;c.

For payment of Money into Court
To take Bill and Answer off the File
For a Commission
nesses

examine

to

99

304
307

Witib.

For examination of a Plaintiff or a

Defendant as a Witness

315

To enlarge Publication

317

For

examination

Witnesses after

of

Publication

320

To prove Exhibits vied voce at

hearing

325

Civss Rill

to

Of

directing

an

343

hear Judgment

Decree

330

down Cause

Subpoena

326

Evidence
Selling

the

Issue, a

Case, or

Law

Motions after Decree

363
370
373

To rectify Minutes of a Decree

To suspend the execution of a Decree
To restrain a Creditor from suing at

Law

346

an Action at

Rehearing

344

To enlarge Time for payment of Mortgage Money

ib.

375

376

377

TABLE OF CONTENTS.

XXX IV

Page

chancery

Continued.

PRACTICE.

may

That Trustee
tate

Es-

tease Infant's

378

For payment of Money out of or

Court

into,

378

'

For leave

to prosecute or

a Decree

come in under
378

To confirm Report nisi, or absolue

For a new Trial of an Issue
For Defendant''s Examination

may

That Purchaser
chase

in

purchase Money

file

may

legatee
Master's Report

383

a Bill, or that

to

389

395

of Revivor
Supplemental Bill

ib.

Farther Directions
.

386

Exceptions

382

may

That Executor

396-

401
408

Bill of Review

.413

434

Petitions in

ib.

or by the purchaser thai he

may pay

Costs

381

com/pleat his pur-

To open Biddings

Appeal

379

Causes

441

Accountant General

chap.

442

in.

STATUTORY JURISDICTION.
In Admiralty Cases

Under

14

tices to

cy

15

8. c.

Aliens

Under 25 Hen.

2. respecting

of Delegates

Under i he Statu I es

19. s. 4*

Bankruptcy

Commission of Bankrupt

449

respecting Court

in

Appren-

8. c.

447

Hen.

ib.

451

454

xxxv

TABLE OF CONTENTS,

Page

STATUTORY JURISDICTION. Continued.

Commission
joint

Bankrupt

<>/'

and separate

461

superseding of

467

second

475

454, 476

Petitioning Creditor's Debt

Act of Bankruptcy

481

Provisional Assignment

483

Effect of Commission upon

of the Bankrupt

Property

the

485

Proof of Debts
Of Lien and Set-off

498

510

Election of Creditors

515

Stoppages in Transitu

518

Svrrender and Examination of Bankrupt

51P

Assignees

524

duty of
Dividend

of

Surplus

552

Habeas Corpus Act

Infant Trustees

Marriage Act

Act

554
557
558

.561

Private Acts

553

Justices of the Peace

549

City of London Tithes

friendly Society

547

.548

Arbitration Act

543

Charitable Uses

Jews

535

Bankrupt" s Allowance

531

Certificate
effect

527

561

562
ih.

XXXVi

TABLE OF CONTENTS.

CHAP.

IV.

SPECIALLY DELEGATED JURISDICTION.

NAMES OF

ABEL
v.

Heathcote

v.

391

v.

201,2:21,396
Abinsjdon, Lord,
Abrahall r. Bub

Abraham

v.

v.

Butter
.

Dodgson

ii.

287

i.

115

ii.

228

ii. 110
Ackrovd v. Suiithson
Acton v. Market
ii. 179
.
Adair v. JVew River Company ii.
147, 148
Adair v. Shaw i. 460, ii. 103,
113, 424
ii. 540
Adams, exparte
Adams v. Bohun
ii. 204
i. 518
v. Buckland

v.

Gale
Merrick

v.

Pierce

v.

Weare
Addison v. Dawson
v. Hindmarsh
- v. Walker
Adlington v, Cann
Agar v. Fairfax

ii.
i.
i.

v.

i.

476
385
324

ii.592

437, 4 10

ii.

ii.

i.

117

30

i. 240
199,201

.
i. 9, 10
Aiscough, exparte
ii.
403
Akerman, exparte
Akers v. Chancey
ii. 205
.
ii. 338
Alam v. Jourdan
.
Albans, St. Duke of v. Beauclerk
.

ii.

Alardes v. Cambel
Alcock, exparte
Alder jou v, Temple

Aldrich

Cooper

v.

203, 407,

i.

499

ii.

Abell exparte

Abergaveny

ii.

390
ii. 404
Abergaveny ii.

Nodes

CASES.

72, 73
ii.
ii.
i,

556
463
4 i2
:

Aldridgev. Mesner

Allan

v.

i.

Thompson

Allan

v.

542
290
ii. 73
ii. 467

Allen, exparte
Allen, v. Allen

ii.

i.

Callow

v.
v.

Downes

v.

Hancoru
Harding
Pendlebury

v.

v.

148

i.

155, 158
i.300, ii. 346
i.

Bower

v.

147, 148

ii.

121

i.

337

i.

391
57
105
391

i.

250

i.

:j91

ii.

Poulton
Aller v. Jones
Allerton v. Knowell
Alexander v. Alexander
v. M'Cullock
v.

i.
i.

Lady Gresham i. 493

Deschamps i. 28(5,329,
342, 343
v.

Alley

v.

Alleyne

Alpha

Alleyne

v.

v.

Alsager

Payman

v.

v.

177,

Johnson

ii.

Rowley

ii.

290
279
152

i.

136

i.

ii.

Alston

\.

Alston

A mas v. Korner
Amrsbury v. Browne
Amhurst
Ainler

v.

Amsinck
Ancaster

i.

v. Dowling
Amler
v.

Barclay

v.

\.

v.

Dwyer

413
318

ii.184, ls;

Mayer

193
i.

i.

rson, exparte

27

ii.

475

ii.560
i.

ii.

489, 490
159j 327

xxxvm

NAMES OF

CASES,

Vol. Page.

Anderson

Andree

v.

v.

Andrew

Clarke

v.

Eminerson

v.

v.

Eminot

v.

Palmer

Androvin

i.
ii.

Poilblanc

v.

Aniel, exparte

v.

ii.

Clarke

Angerstein

v.

Annaud

Hunt
Honeywood

v.

ii.

ii.

181

i.

509

Lord, Case ii. 590

Marchioness of,
ii. 585, 588
exparte
i. 321
Annesley v. Ashurst
Ansliev. Medlycott i. 209,282,
ii.

v.

East India

86
327

i.
i.

Appleyard v. Seton
Apreece v. Apreece
Archer v. Mosse
v.Pope
v.

ii.

i.

i.

v.

Company

ii-

v. Swanton
Armstrong, exparte
Arnold v. Arnold

v.

Ashton

Thompson

ii.

ii.257

v.

Chapman

v.

Kempstead

Arrowsmith, exparte
Arthington v. I'awkes
Artis, exparte

Arundell, Lady, v. Phipps

Pitt

Trevilieu

Ascough v. Johnson
Ash v. Rode
.

220
214

503

ii.

591
i.46&

ii.

Ashton

8, 10, 11,

ii.

255
148
436

75,

Ashurst v. Eyre
Askenhurst v. James

Askew

v.

Astley

Aston
Aston

ii.

i.

Com-

Poulterer's

pany
v.

v.
v.

336

ii.

Astell v.

Montgomery
Weldon

40

ii.

33
Aston i. 193, 392. ii. 300
Lord Exeter
i. 166.
i.

30O
80
433
260

ii.

Astrey's case

*-

Atherton v. Worth
Atkins v. Fan*
v. Hiccocks
v.

Hill

i.

i.
.

i.

18

ii.
ii.

300
i. 439
Atkinson v. Hutchinson
v. Leonard i. 23. ii. 185
v. Turner
ii. 12
v.

Wright

ii.

6, 299,

ii.

36

v.

Andrew

ii.

v.

Webb

Attorney General

55, 57
v. Backhouse ii. 130, 255

of
v. Corporation
Bedford
.
ii. 59, 62
v.

Berryman

16

v.

ii.

317

v.

ii.

591

v.

8
i. 502
ii. 48
ii. 474
i. 132
ii. 509

v.

v.

Black
ii. 59
Bishop of Chester ii. 53
Boultbee
ii. 58
Bower
ii. 112
Bowles ii. 51, 52, 54
Bowyer
ii. 58, 112
Breeton
ii. 139

v.

Brewer's

i.

i.

ii.

v.

v.

206
369
424

East India

Arm iter

v.

i.

Snatt

Nabob of,

Lord,

177
11,64

ii.

Ardglasse v. Muschamp
Armitage, exparte

<

77
367

v. Bailie

216

Company

Smith

v.

Arcot,

ii.

Kirkhall

s,

Antrobus

v.

Ashley, exparte
Ashe's Case
Ashley v. Pococke

85, 88

152
ii.
197
i. 307
154, 287

v.

Annandale

Ashly

272,
ii. 17

i.

lO,

8,

115,398,421

ii.

Smith
Angier

v.

362
384
442
204

ii.

Partington

v.

Angier

Ashburnham

230,

i.

ii.

11, 75,

Trinity Hall Col. ii.4l

against Wrigley

Andrews

Vol. Pagp.i

Ashburnerv. M'Guire

402
ii. 296
270
ii.
ii. 89
ii.

'

v.

Maltby
Palmer

v.

v.

v.

v.

Lord Clarendon

v.
v.

ii.
i.

130
313
227

i.

42-3

ii.

v.

109,

41

Company

53

425
Bucknall ii. 140, 148
Butler i. 364. ii. 105
Caldwell
i. 502

i.

i.

ii.

v.

Clarke

i.

91,

ii.

(54

ii.

56

NAMES OF

v.

ii.

v.

Crispin

v.

Davis

v.

Day

i.

v.
v.

v.

53

Smart

i.

v.

Gubu

v.

Haberdasher's:

Com-

Harrow School

ii.

Hartley

n.

Heath

Green

ii.

pany

ii.

Herrick

v.

Hooper

v.

Hudson

v.

ii.

ITS

- v.

Nichol

- v.

Oglander

- v.

Owen

ii.

58
130

- v.

Packhurst
Parker
v Parkin

ii.

592

- v.

ii.

139

ii.

ii.

Sparkes
v.Talbot
v.

v.
v.
v.
v.

'Fancied
Tiler

i.

ii.

11,77
ii. 580, 584
ii. 53, 54

V Parnthei
V Parsons
V P
ii. 63
v. Trice ii, 50, 59, 60, 01

Pref.

i.

53,
i.

ii.

58

487
50, 51
i.

ii.

53, 54,

ii.

58
Whiteley

v.

ii.

57, 58,
139, 396

Whorewood

v.

i.

387.
v.

Williams
Winchelsea

v.

Wyburgh

v.

ii.

v.

Halsey

v.

Ward

v.

312,
137

ii.

53

49, 58
145, 343

ii.
ii.

- v. Youne
o
Atwood v. Atwood
Aubrey v. Popkin
Audley v. Audley

Awbrey

viii.

54
212
i; 261,439.
ii. 198, 583
ii.

v.

Austen
Avelyn

61

53
592
Tomkyns 502. ii. 52
Tonna ii. 59. ii. 427
Turner
ii. 412

v.

59

ii.

ii.

v.

ii.

ii.

v.

139

ii.

Tyndal
497, 502.
Vernon
v. Vigors
v. Wansay
Ward
Weymouth
~ Whitehurst

(U
5o
242,390
ii. 63
ii.
89
ii. 94
ii. 54

59
Merrick
ii. 51, 52
ii. 59, 00
Middleton
Milner
i.
316
Minshall
ii. 57, 58
Mountnorris
i. 502
. v. Nash
ii. 53
- v. Newcombe
ii. 289

63, 421

ii.

139, 441

ii.

v.

Hutchinson
Jackson ii. 139,147,234
Janes
ii. 139
Johnson
ii. 59
Johnstone
i.
82. ii.
106, 108
Leigh
ii. 62
Lock
ii.
62

Mayor

ii.

v.

'

v. Griffith

v.

Kuper
Sandys

V.

v.

v.

v.

55, 474
ii. 295, '297
Finch
Foundling Hospital ii.

ii.

ii.

Siderfin

v.

v.

Scott

iI reaves

v.

-~

v.

v.

i.

5s
62
ii. 91
ii. 56
i.
40S

Pyle

v.

v.

v.

13

Vol

Attorney General
v. Rigbj
Robins

174

Doughty
Downing

ii.

288, 289, 291.

298, 803, 305

Fowler
Goulding

56

62
ii. 56
ii.
57
i. 502
58, 130
ii. 130
ii. 57

v.

ii.

51, '294,
v. Dixie ii. 129, 551,589
v.

Cooke

Paee.

Vol.

Attorney General

201

ii.
i.

I!)

ii.

96
586

ii.

106

i.

i.

ii.

499.

10, 77, 105

King

Axe v. Clarke
Ay let v. Easy
v. Dodd

i.

233

ii.

180

319
ii. 59, 428
Ayliffv. Murray
i. 91,475.
ii. 131, 330
Aynsworth v. Pratchett
i. 274
Ayres v. Willis
ii. 43, 47
ii.

B.

Babbington

v.

Greenwood

i.

370
46

ii.

Buck

v.

Andrews

ii.

99, 101

NAMES OF CASES.

xl

Bad-well's Case

Bacon
Baden

457,

ii.

v.

Bacon

v.

Countess of Pembroke
i. 291

ii.

Badger, ex parte
Badrtck v. Stephens
Bagnal v. Bagnal
Baeot v. Ouditon
Bagwell v. Dry

Bagshaw

Spencer
Elkins

v.

i.

508
75
ii. 405
i. 472
ii. 86
ii. 287
357, 433
481, 482.

i.

372
341
ii. 246
ii. 533
i. 485
i. 495
ii. 585
i. 85
ii. 250
i. 310
ii. 220
i. 423
.

Hammond

/.

ii.

Baillie
Sibbald
Bainbridge, ex parte
-.

Dixon

Baio.es v.

Bainton v. Ward
Baker, ex parte

v.

Athil
Bird
Child

v.

Duinaresque

v.
v.

v.

Harris

v.

Hart

v.

Hall

v.

Holmes

i.

112.

Vol. Vug*.

Bang-ley, ex parte

Bank v. Farquis
Bank of England

v.

368

v.

v.

Payne

v.

Pritchard

v.

White

227, 206,
268, 207

ii.

232, 273

Baldwin

Bale
-

Ball

v.
v.
v.
v.

ii.

236
149

i.

436

i.

Balcli v. Wastall
.

322

i.

ii.

v.

Billiiigsley

v.

Johnson

v.

IVluck.nvn

ii.
ii.

Coleman
Newton

i.
i.

85

405
360
325

Balsh v. Hyam
Banbury's, ord,

ii.

Case

Banbury v.
Banbury Claim

Bancroft v. Warden
Baadier, ex parte

i.

Lin good i. 97, 98,

336. ii. 329

ii. 113
v. Soane
Allen
i. 437. ii. 13
i. 128
v. Baker

v.

Bar-net v.

Saxby
Weston

Barney

Blake

v.

v.

i.

278
256

i.

100

ii.

Barnsley, ex parte

ii.

569, 575,

576
Powell i. 212, 237,
238, 261. ii. 206,321,435
Barret v. Beckford
ii. 34
v. Blagrave
i. 138
v.

Barton

ii.

153
227

ii.

405

i.

ii.

177

13

208
133
217,

i.

Lunn

218

301
ii.
ii.

ii.

v.

337
310
i. 406

ii. 404
ii. 272
v. Tristran
ii. 9, 17,64, 420
i. 253
Barrough v. Greenough
Barrow, ex parte
ii. 480
Bartholomew v. May
i. 477
Bartlett v. Hawker
i. 158

Coutts i.278, 280. ii. 160

Montgomery i. 308, 390,

Balmaine v. Snore
Balmanno v. Lumley

Barnes

158

ii.

Mellish

81

ii.

536, 538

32
12
v. Morris i. 273
Banks, ex parte
ii. 465
v. Den sham
i. 50
v. Sutton
i. 360, 363
Barbone v. Trent
i.
04, 172
Barclay v. Russell
ii. 85,167
v. Wainwright ii. 37, 73
Barfit, exparte
ii. 526
Barring v. Nash
i.
199, 201,
202
Bark v. Harris
ii. 234
Barker v. Dacie
ii. 227
i. 161.
ii. 282
v Duinaresque
v Goodair
i. 112, 113
ii. 464, 487
v. Vansomar
i. 241
v. Wyld
ii. 275
Barnard v. Large
i. 394, 395
Barnardiston v. Fane
i. 37

366, 367,

ii.

ii.

"2*2

ii.

Butson

v.

ii.

v.

Bailey

Vol. Page.
4(H), 469

v. Gore
Banington v. Home
~
v. O'Brien

v.
v.

Barton

Coke

Barwell v. Parker
Barwis, ex parte

ii.

i.

ii.
i.

28

285, ii. 426

i. 433, 488
ii.

469

VUIJ'S OF CASES.

xh

Vol. Page.

Bsk

Dal way

v.

Baskerville

B ni >*.

v.
v.

Bassevi

Batch

Clapham

i.

Nos worthy

1.

303
409

ii.

4 19

ii.

213

Sena

v.

Bustard

v.

51, 289
i.
Buskerville
160
i.

Clarke

v.

Andrews

v.

ii.

Bate, ex parte

Hate

Bates

ii.

v.

Murray

v.

W'.llue

v.

Dandy

v.

Graves

i.

1 1

Beaalieu, Lord,

381

ii.
I.

258

i.

141

Montague

S9

i.

Lord v. Lord Bradford i. 4S8

Lord v. Sherwin i. 130, 141
Bathurst, Earl, v. Barden i. 132
v. Murray
279, 281
ii. 13
Batsford v. Kehbel
Batson v. Lingreeii
i. 481,49 4
Batten v. Earnley
i. 181
i. 215
Batty v. Lloyd

Berty

v.

Reed

v.

ii.

Bax, ex parte
Baxter's Case

Bawdes

v.

ii.

ii.

Am hurst

i.

Adams

ii.

v.

Bishop
De Walkeirs

ii.

v.

El kins

Buy ley

v.

v.

v.

420
389

ii.

i.

Corporation

57

299
246
13
224
494

of Leo-

417
ii. 89
v. Powell
i. 08
Baylisv. Attorney General
i. 319
Baynes v. Baynes
ii. 07
v. Dixon
Bavuhain v. Guv's Hospital i. 34
i. 11
Baynum v. Bay num.
i. 40, 248
Bax v. Wliitbread
i. 201
Baxter v. Knollys
)i. 373
v. Wilson
i. 405
Beale v. Beale
i. 69
Beamonl v. Fell
ii
Bean, expa.te
473
i- 320
Beard v. Nuthall
ii. 403
v. Earl Powia
i. 277
v. Travera
ii. 470
Beaseiey v. Beasley
BeatrifTv. Smith
211,200
minster

i.

34.

\QL.

I.

ii.

<i

Lord Cardigan

v.

Boultbee
Hutchinson

v.
v.

chinell

i.91

Thorpe
Arnold

v.
15i

v.

159
18

i.

i.

ii.

4S!)

i.

390

i.0 16
ii.

79

65,

354
303

i.

Wilman

v.

220

i.

Beck, ex parte
v. Weld)
Beckett v. Beckett
Beck ford v. Beckford
v. Tobin
v. ^ ade

139

ii.

ii.

i.
187
Newland
ii. 217
Beekman v. Le Grange
Bedford, Duke of, v. Cokei. 243
ii. 400
Beilby, exparte
i. 417
Belch v. Harvey
ii. 534
Belchier, exparte

Beckley

v.

Parsons

v.

119, 123,

ii.

198

Baugh

21

i.

ii.46

Beaumont

141,20(5, 207,

Heard

v.

383,384,387

Bath's, Earl of, Case

Hat

-'5'

i.

261.
V.

236

04,

i.

i.

121
34

i.

l'a\ Icy

v.

547

ii.

Scales

v.

Bateman

Vol. Pa

Duke or,

Beaufort,

Bel four

v.

Weston

Bell, in matter of

ii.

Cundall

v.

Phyne

v.

v.

v.

v.
v.

378
85
i. 120
202, 203
ii. 25
ii. 34
i.

Jones

ii.

Erwin
Uthwaite
Russell

i.
95*
310, 342

ii.

Belton, exparte

Bempde

ii.

Johnstone
Bencraft v. Rich
Benfield, exparte
v.

v.

Benger

v.

Bengough

Solomons

i.

ii.

Walker

ii.
i.

- v.

v.

Edwards

v.

Lee

v.

Vade

i.

9S

34, 35
27, 92
ii.

Ratchelor
Davis

v.

407

487, 501

ii.

Drew
v.

509
517

ii.30(>
ii.

Bennett, exparte

!<>;{

ii.

Bellassis v.

Bellew

10,

ii.

Read
Walker

Bellamy

41

i.

499.

i.

ats.
v.

33
572

i.

531
87

ii.

363, 376
i.428
411 ii 253,
i.

261
v.

ii.

139, 147, 5(8

Whitehead

Coll.v.

Carey

ii.

"I

298,115,

41S
Benson

v.

Baldwin

20

NAMES OF CASES.

xlii

Vol. Page-.

Vol. Pajre.

Benson

310
k 310
L 33
ii. 358

v. Bellasis

Benson
Gibson
Vernon

v.
v.

v.

Benyon

i.

Benyon

v.

ii.

73, 74

v.

Collins

i.

v.

Maddisou

ii.

400
13

Berk hainpstead free school ii. 550

Berks v. Wigau
ii. 277
Berney v. Fitt
L98
Berkley v. Bryraer
ii, 283

Daugh

348
Rvder
ii. 329
Marquis of Donnegal

v.
v..

Bernal

v.

i.

ii.

Berrisford v. Mrlward

Berry

Ask ham

v.
v.

Usher

v.

Wade

185

257
i. 485
108, 110
i. 310
i.

ii.

Lord Falkland

i.
35,
262, 374

Bertie v.

L 202
ii. -04
Bateman
Bettesworth v. Dean and Chapter
of St. Paul's
i.
288,308
Best

Stamford

v.

Bethuen

v.

Bevan, exparte
ji. 403,
Bevant v. Pope
i.
ii. 5G8,
Beverley's Case
Bevershain v. Thringhold i.
Bias

303
502
135
i. 57
i. 480

Bias

v.

Biekhatn

v.
v.

'

Cross

v.

Bicknell

i.205

Cough,
Page

u 470
iL40
100
ii. 417
ii. 79
i. 432
182
i.
i. 99

Biddlev. Biddle

Biddulph
Bigghton

v.

Biddulph

ii.

Grubb
Bigglestou v. Grubb
v.

Bignol

v.

Bill v.

Kynaston

Bignol

v. Price
Billinghurst, exparte

Billingslev
Billon

v.

Crickett

v.

Hyde

Bindon, Lord,

ii.5M
i.
179

Walker

v.

4<>5

i.

273

130
207
Bird v. Harrison
ii. 302
v. Lefevre
ii. 81,574
v. Hardwieke
i. 173
Biscoe v. Perkins
345, 304, 300
Bishop v. Church
i. 1, 428.

Birch

Birchill,

i.

ii.

v.

v.

Bearfoot

Coleman

Birch v. Blagrave
v.

Webster

i.

v.

Willis

ii.

83
317
79. ii. 330
i. 02

Ellames

i.

ii.
i.
i.

i.

431

298
242
420

338
442

i.468

Black hall v. Combs

Black born v. Ed-hy
Blackburn v. Gregsons
Blackborough v. Davis
Blaeket v. l-an^lands
Blackshaw v. Rogers
Blackwell v. Harper

65
240
i. 409
i. 13
ii. 237
ii. 10
i. 126
v. Nash
i. 331, 333
Blackwood, ats.
176
Blacoe v. Wilkinson
110
Blades v. Blades
260
Blagden v. Bradbear
208
Blake v. Blake
305
v. Buubury
ii. 40, 44
East IndiaCompany i. 33
v. Lei;h
i. 2G7
Blakeway v.^Strafford
i. 482,

B lam ire

v.

i.

i.

Gildart

Blewit's cae

Bligh

i.

13
134

ii.

476

ii.

Blauchard v. Hill
Bland, ex parte
Blanford v. Tliackerell
i. 493.
Blatch v. Wilder

ii.

ii.
ii.

v.

ii.

Lord Darnlev

v.

ii.

51

354
589
296

501.
355, 303
i.

Blinkhorn v. Feast ii. 79,88,89,90

Bl it he's Case
i. 236
Blois v. Lady Hereford
i. 283
v. Martin
.371
Blount v. Bestland
ii. 2
v. Blount i. 350, 351.
ii.

v.

Morrettik 93,94,399,

v.

Blower

380

Burrow
Doughty
Meyrick

v.

ii.

v,

331,512, 514,515

v.

Bissell v. Axtell

486, 5J3
Earl of Suffolk

v.

Binstead

i.

i.

ii.

Bowdeu
v. Domnutt i.
Bingham v. Bingham
Binford

Holt
ex parte

v.

ii.423
ii.

397

ii.

435
40O

Bluck v. Fawcett
Bine v. Marshall
Blundell v. Buttargh
Blunden v. Barker

372
129
i. 338
i. 370

ii.

ii.

NAMES OF CASES.

xliii

Vol. Pag.

Itlunt v. Clitherow

Blyth

v.

Bodicoate

ii.444

Tastet

ii. 405
Boeve v. Shipwith
:*">
Bold v. Corbett
i.
ii.
Bolger v, Maekell
12,429
Bolton School, ex parte
ii. 563
Duke of, v. Williams
i.
486. ii. 441
Bonbonus, ex parte ii. 462, 464
Bond& Hill, ex parte ii. 465,466
v. Hopkins i. Pref. vii. 421
v. Kent
ii. 107
v. Duke of Newcastle ii. 158
i. 390, 391
v. Simmons
,

Bonham

v.

Newcombe

41.

i.

ii.

10

i. 427
Bonithonv. Hack more
Bonner v. Bonner i. 4S0, 4S7, 502
Bonney v. Ridgard
302
i.
Booth v. Booth
ii. 12, IS
s
352
v. Dick
ii.
v. Rich
ii. 354
Boraine's Case
i.
17

Good ere

Borretv.

i.

488

Bosanquet v. Dashwood
i. 242
Bostock v. Blakeney ii. 120, 127
384
Bosville v. Brander
i.
Boswell v. Corant
i. 493
Bosworth School, ex parte ii. 589
i.
361.
Botteler v. Allingham
ii.

ii.

Botts v. Verelest

ii

Boughton

v.

Boughtoo

i.

517
202

223.

ii.

47
Boulbee

v.

Stubbs
v. Alleyne

i.

191

205
ii. 304
Bourke v. Bothwell
v. Bridgman
i. 82
v. Lord Macdonald ii. 158
v. llicketts ii. 00, 08,70

Bourdillon

ii.

Bourne, ex parte
v.

Bovey

v.

Dodson
Smith

l>oweii, e\ parte

Bower v. Carter
Bowers v. Cator
v.

Litile.\ood

i.

ii.

4ol

495,496
ii.

101

v.

235.

i.

Bowles

v.

Hunter
Rogers

Bowman
Bowyer

v.

v.

ii.

Stewart

v.

170

Boycott v. Cotton

90, 92

180, 200,

i.

Lygon
M c Evoy

259
330

ii.

207,
405. ii. 21
ii.273

ii.
i.

Boyd

v.

Wills

Boyle

v.

Bishop of Peterborough
i. 3 4, 247, 2 .9
Lysaght
i. 34

v.

Boyntou

i.

4."0

ii.

101

Pack hurst

v.

Bow hee

v. Grills

Bowlter

v.

Hunter

ii.

85

i.
iS-_:
Bracken v. Bent ley
Brace v. Duchess of Marlborough

i.

Bradish

Gee

v.

v.
v.

421, 434

i.
ii.

Bradley

248, 138
i.

59

ii.

31

Bradley
Prixoto

ii.
!'J
v. Out ram
ii. 146
Bradwinv. Harper
Bramley v. Alt
i. 257
Brandlyn v. Order. 159. ii.248,
258
Brasbridge v.WopdrofJe ii. !'(>,'>;:

Brad.->haw

Brasskigton

v. Brassington-ii.

Bray v.
Braybrooke

v.

Brecton

Da; kin

v.

Inskip

i.

v.

30

i.

Brend
Brereton v. Game!
Brend

345, 364.
ii. 164
i.

:>i\>

ii.

410
255

ii.

i. 38, 384, :JS7

Fercer
ii. 105
Brettell, ex parte
I 93
Brewett v. Mitchell
Brian v. Acton
L 328
ii. 119, 123
Brice v. Stokes
i. 229
Brickly \ Doninngton

Brett

v.

Bridgev. Abbott
Bridges v. Hitchcox
v. Mitchell
v.

473
245

Bridgman

i.

302

Bridgwater,

i.

519

v.
v.

e 2

ii.
i.

Duke

79
19
474, 482
242
Edwards
. 25
ii.

Dove
Green

i.

of, v,

20

309

i.

Wood

i.

ii.

17

ii.

Bowlcer

192

ii.

Strathmore

v.

231, 2-32

Botterill, ex parte

Vol.

Bowersbank v. Collassnu
Bowes, ex parte ii. 47!,

i.

v. St. era

De

v.

Mostyn

198, 58'i

ii. 283
300,304,
."340. ii. 128
i. 200

Elmhirst

v.

Boardman

Boehm

ii.

i.

NAMES OF

xliv

CASES'.
Vol. Fag*.

Vol. ?a?p.

Eynon
v. Woodward

Bright

v.

i.
.

i.

206
4(8

Briscoe v. Cartwright
i. 58
Bristol, Earl of, v. Hungerford
i.

Bromley

v.

Smith

ii.

ats.

'ii.

Goodere

v.

ii.

v. Jeffereys

Holland

v.

102
149

459, 499,
540, 548
i.337

23, 184,
186. ii. 423
i.

ii. 77
Bromsdonv. Winter
i. 97, 99
Brooke v. Galley
v. Lord Hertford
j Lord,
i. 200. ii. 353
ii. 225
v. Hewitt
ii. 377
Brookes v. Reynolds
ii. 34
Broughton v. Errington
ii. 93, 95
Brown v. Allen
Browne, ex parte ii. 457, 400,
408, 473, 502
i. 2S, 427
v. Barkham
i. 00
v. Browne
ii. 528
v. Bullen
ii. 295
v. Byne
v. Carter
i. 246

'

'

v.

Chapman

v.

Clarke

v.

Dawson

v.

He

v.

Harris

v,

Heathcote

v.

Lee

v.

Litton

v.

O'Dea

v.

v.

i.

Higden

v.

Parry
Pring

i.

ii.

145

ii.

Laet
Elton

Higgs

401

385
30
451
385

i.

v.

v.

ii.

i.

i.

434, 487,
490, 497

46. ii.81,371,
ii.
ii.

436
406
402

117, 123

241
ii. 47
i. 62

i.

Quilter
Raindall

v.
v.

i.

v.

Rhabau

v.

Selwyn
Williamson

'

422

i. 249, 250
Bristowe v. Ward
i. 208
Broderick v. Broderick
Broderip v. Phillips
ii. 228
ii. 574
Brodie v. Barry
i. 300
v. St. Paul
i. 401
Brome v. Berkley
v Monk
i. 283. ii. 41
ii. 580
Bromfield, ex parte
ii. 419
v. Chichester

Bromhead

Browne

v.

Browneil

v.

31,33
i. 292
i. 346
i. 471
ii. 252

Browuell

19

i.

Browning v. Barton
Brownsword v. Edwards

i.

393

i. 373.
228, 239, 254
Brudenel v. Boughton i. 482, 48(3
Brudenel v. Elwes i. 49, 50, 53

ii.

Bruen

Bruen

v.

Brummell

v.

ii.

Prothero

i.

23

475

v. M'Pherson
ii. 107
Brunker, ex parte
ii. 183
Brnyere v. Pemberton ii. 121,441
Bryant, ex parte ii. 455,458,468,

503, 518

Spike

v.

Brydges

i.

Landen
v. Buchannan
Draper
v.

i.

Buchannan

i.

Buck

i.

v.

v. Fawcett
Buckeridge v. I u grain
Buckinghamshire, Earl
Drury
Buckhouse v. Crosby

Bucklandv. Hajl
Buckle v. A ties
v.

05
475
483
332
208
439
486

ii.

v. Phillips

ii.
i.

of,

V.

i.369
i.

i.
i.

323
333
408

216,287,326
Williams
i. 493

Mitchell

i.

Buckley v.
Buckmaster v. Harropi. 291,302
Bucks, Duchess of, v. Sheffield
ii.357
ii. 90
BufTar v. Bred ford
Bufford v. Bradford
ii. 87
ii. 180
Bulley v. Ovey
Bullock, ex parte ii. 242,409,474
i. 495
v. Fladgate
v.
v.

v.

Menzies
Richardson
Sadliere

v.

Burdett

v.

Burdou

v.
v.

Burden
Rockley
Dean
Kennedy

ii.

349

i.

174

ii.

Case
Bulstrode v. Bradley
v. Litchmere
's

Burden

ii.

391
137
259
471

i.
ii.

390
363
375, 386
i. 418

91. ii.
ii. 105,

i.

i.

Burford, Corporat. of,v. Lenthall

ii.

415,429, 551,566

\U

NWMES OF CASES.
Vol

304.

i.

Burgh v. Francis
Bink v. Brov
Burke v. Vicars
11

ii.

242,243
ii. 159

ii.

517
L 361, 362
i.

v.

Griffin

Burueli v. Martin
Burnett v. Burnett
v. Kinnaston

ii.2*l

i.383

357
in 94
n. 459
ii.

Burridge v. Bradyl
Burrow 's case

Lock

v.

v.

ii.

559
45
475
200

ii.

109

ii.

i.

Know I ton
Afalvon

v.

v.

Matton

v.

Pierpont

i.

i.

501, 506

Bush v. Western
Bushnan v. Pell
Bnsshell

Butcher

v.

Bnsshell

Cooke

v.

Duncombe

i.

ii.

ii.

251

i.

262
5 13

ii,
i.

v.

il>.

478

ii.

Campbell, exparte
ii. 505
v. Campbell
ii. N3
v. French i. 07, ii. 270
v. Leach
i. 48, 50
Radnor ii. 73
v. Earl
Campion, exparte
i. 427
v. Cotton
i. 219
v. Walker
i. 94
Cann v. Cann i. 152, 209, 324,
431
Cannell v. Buckle i. 282, 283,

288
Canning

Cad man

v.

Cagev
Cahill

Homer

Darby

Russi
v.

ii.

i.

'>21

121,421, 493

II

Shepherd

v.

Hickes

v.

ii.

500, 501

i.

i:.

v.

27

20

411

i.

Harris

i.

296

51
47,71,
72
i.

ii.

Goodinge

v.

Carleton

4 Li

i.

Cardwell v. Mackrill
Carey v. Askew i. 181,

ii.

Brightwell

90

85,
ii.326
i.

287
304
Carlisle,
of,
v.
Lord
Berkley
ii. 194
Earl of, v. Globe ii. 409
Corporation of v. Wilson
i. 69
Carlos v. Brooke
ii. 321
Carnan v. Bowles i. 126, ii.2H(>
Menzies
Smith
Countess

v.

ii.

v.

Carnatic,

Nabob

Carr

v.

v.

v.

ii.

of, v.

Company

ii.

East India
220, 240

Carr
Eastabrooke i.391,
Ellison

i.

35,

ii.

46

ii.

38

57,318

37 2
Carrington v. Holly
ii. 298
Cairou, Heir of, v. Bark
i. 425
Carruthers v. Carruthcrs i. 282,
283, 369
Carte v. Ball
ii.
149
v

Caft're\ v.

33

44*2

ii.

71

322

ties,

i.

('ami. art

(upper

307
Butterworth v. Bailey ii. 288,333
v. Robinson
i. 126
Bntriche v. Broadliurst
ii.
46
Buxton v. Lister
ii. 427
Byne v. Potter
i. ISO
B}

199,201
307, ii.81

i.
i.

iMoreton

257

401,402,

Butter6eld

Vivian
exparte

v.

ii.

i.

Butt, exparte

>

Cam part

Calmady
Rous

v.

Cant, exparte
Capel v. Gi idler

404

v.

Camden v.

i.

Every
Freeman

Butterfield

Cambridge

i.

S'tapeley

v.

v.

v.

140

Butler, es parte
ii.
v. Buileri. 273,478.

v.

Mince

v.

321,

ii.

322,323
ii. 517, 518
ii. 393

Callow, exparte

Calma.lv

>17

ii.

342,361

i.

Roehefort

386

432
303
403, 494

Easts

v.

i.

248,240,251
!s
Churchill ii. 509, 5 >

v.
v.

Callaghan

i.

v.IJutcherji.
v.

337
i.42

ii.

Burt v. Barlow
Burton, ex parte
v/Hastinga

4-27

ii.

la inereau

v.

275

i.

Theobald

v.

230
i. 42

Vol.

Calcot, exparte
Calcraft v. Roebuck

Humphrey ii. 25,28,29

v.

Burn v.
Burnaby

117

i.

Wheate

v.

Uurlton

P.iro.

Lamb

Burgensv.

'Lay lor

i .

NAMES OF CASES.

xlvl

Carte
Carter, ex parte
v.

Crawley

De Bruuc
v.

-21

ii.

v.

Chandos, Duchess

507
158

i.

ii.

Paschall

383,

i.

Chaplin i. 194, 243,

290, ii. 33, 34

v.

Cooper

v.

Chapman

v.

I'uv
1

i.

i.

Bond
Browne

172, 17(5
199, 212

v.

Gibson

57

v.

Koops
Landsdown

Abbott

v.

ii.

i.440

v.

Bertie

v.

Coodinge

471

i.

428
i. 303
192, 413

Stafford
Casborne v. lnglis
v.

ii.

v. Scarfe
i.
Cassleton, Lord, v. Fansliaw

Cass v. Ruddle
Caswell, ex parte
Cathcartv. Lewis
itor, ex parte
Cut ton, ex parte
( ator
v. Earl
of

ii.

330
507

i.

ii.

510

ii.

ii.583

Pembroke

ii.

105, 107

Cave

v.

v.

Pulteney

ii.

Hoiibrd
Challnor v. Murball
v.

Chambers

v.

v.

ii. 378
i. 51
Chambers
Goldwin i. 82, 275,

71, 131, 151

i. 08,
Minchin

435, 430,
v.

ii.

ii.

v.

43

ii.

21
i.280

Cave

11,119, 122

Thomson

ii.

233

i. 18
Chamberlaine, ex parte'
Chamberlaine
v.
i.

v.
v.

Champ

Knapp

Mood

v.

Champion,
-,

Chanrey

Dummer

e>:

v.
v.

v.

ii.
i.

ii.

parte

Wiuham

ii.
i.

Graydon
Tahourdin

i.

115,

ii.

174
189

ii.
i.

ii.
i.
ii.
i.

v.

28

155, 171,

232
404
341

497
387

Talbot

'.'.1,22,210

i.

497

57,58
i. 75
ii. 242
ii. 238
ii. 105

Turner
Tanner
Chappeaurouge v. Carteaux ii.
184
v.

Charitable Corporation

Sutton,

v.

ii.

Charles, ex parte

Andrews
Charman
Box

i.

v.

Chase v.
Chassaing

v.

ii.
i.

Parsonage

Chave v. Farrant
Chaver v. Spurling
Chaworth v. Beech ii.
v. Hooper
Chedworth, Lord, v.

113

480, 544
493, 499

ii.

v.

Chasman

358

511, 514

280
38
ii. 25
9, 11,409
ii. 10
Edwards
i. 128
i.
378
ii. 18
i.

ii.

Chesslyn v. Smith
Chester v. Painter
Chesterfield v. Jansen i. Pref.
xxii. 99, 101, 208, 226
Cheval v. Nicholls i. 2G0, ii. 257
Chicote v. Lequesne
ii. 555
Child v. Lord Abingdon ii. 383
ii. 115, 249
v. Gibson
Chitty v. Chitty
i. 309
v.
i. 498,
Parker

348
548

234, ii.252

ii.

Chandler, ex parte
v. Beard
v. Gardiner
Chandless v. Price
Chandos, Duke of,

253

i.

53, 57
45, 55, 56,
ii.

v.

148, 153

ii.

'

C ivan, Lady,

v.

488

i.440

v. Blissett

v.

i.

Hateley
Pulteney

v.

v.

i.

v.

i.

Green

180

ii.

Ansell

172
173

Ellison

-v.

v.

585

ii.

Chaplin

387, 434

Cartwright

ex parte

of,

425, 55S

i.

v.

Carteret, Lord,

343

1.

Blctsoe

v.

Vol. Page.

PA^e.

Vol.

Carte

111,152

ii.

Sel wyn

Cholmondeley,
Oxford

ii.

Lord,

v.

205

Earl of

152
514
v. Attorney General i. 257
Chumley, ex parte ii. 583, 585
Church v. Browne
i. 339, 340
Churchill v. lady Hobsonii. 123
Chute v. Lady Dacre
ii. 287
Cicil v. Plaistow
i. 22G
i.

Christie, ex parte

ii.

Civil v.

Kich

i.

509, 511

NAMES

<>K

CASKS.

xlvii

Vol. Page.

Burk
White

Clanrichard

Clapham
Clare

v.

ii.

Clare

v.

ii.
v. Wordell
Clarendon v. Hornby

Claridge v. lloare
Clarke, ex parte
.

ii.

ii.

254

61, 466,

;">N3

v.

Lord Abingdon

v.

Byne

v.

Capron

ii.

Clerk
v. Grant
v. Guise

ii.

v.

i.

v.

v.

Clarkson

ii.

i.

24, 115

325
442

i.

ii.

Seymour
i.

Clowe v. Ballard
Clowes v. Higginson
Bishop

Clovne,

v.

Cold
Cole

Corbett

Colebrook

Coleman

of,

v.

Young

ii.
ii..

Ravie
Richards

Cockel

v.

Cocking

v.

Cockraine

i.

i.

ii.

Blantire

146,

155
G89, ii. 25

Pratt

v.

D nke

02
427

i.

ii.

9, 11
\lbans

ii.

of St.

42<i

420,425,480
Brangwin
ii. 90
i.

Colesworth v.
v. Jones
i.
434
v. Trecothick i. 93, 98, 213,
299, 322, ii. 339
Collet

v.

Collet

i.

v.

De

i.

v.

Golls

Wollaston

i.

v.

Collins

i.

v.

Goodhall

v.

Cough

Collins

ii.
ii.

v. Griffith

v.

Plumb
Pluminer

v.
v.

Collis v.

v.

Col man

Wakeman

i.

Blackburne
v.

Sarrell

v.Seymour
Colson
Colt v. Woolaston
Colwall v. Shadwell
Colygame, ex parte
Combe, ex parte
I

v.

110, 111
ii.

i,

327,

Co son

154,155
i. 133
i. 294
i.

Swayne

318
424
330
294
244
248
191,

i.

ii.

111,232

Thompson

Phips

ii,

Coles

ii

581
183

227
239

i.497
217

Jones

i.

101
1.321,322

Cock

v.

i.

Winch

41

97, 101
i.

i.

Clutterfouck v.
Cockayne, ex parte
v.

i.
i.

Coleman

v.

v.

400
282, 283

89,90,91,
92, 312
Smith
L 493

Cockburne

v.

v.

81, 85, 80, 87, 8S,

v.

ii. 310,310,317
Low ten
i.
185,
ii. 430

v.

i.

Clough

ii.338

II

i.
i.

480

ii.

v. Farewell
141, ii. 308
Colchester v. Colchester
ii. 371
.Mayor &c. of, v.

Warden

Gresham

v.

v.

V.

115
334
300
213

i.

ii.

ord Foley i. 398,

402, ii. 21

Cuker

Cleaver v. Spurting i, ill, ii. 31

ii. 3(>7
Cleeve v. Gascoigne
Clennell v. Lewthwaite ii. 84, 85
u. 150
Clerkson v. Bowyer
i. 500, ii. 95
Clifton v. Burt
i. 299
Clinan v. Cooke
i. 472
Clinton v. Hooper

dough

109

v,

v.

Claverinj
v. Hill

-<- v.

i.

Woden

v.

v.

v.

v.

(odd

i.484.

Clavering's Case

lavton

432

ii.38,66,93, 04

Hanway

v.

2*i.

i.

Gibbons
Gibson
Robins

Thorpe
Turton
Wilson

v.

ii.

Cohen v. Cunningham
Coke v. Fountain

491

i.

170

,.

325
ii. 368
ii. 28
ii. 334

Sewell

v.

Worthington

v.

t.

Coekshott, ex parte

ii.

v. Montgomery
v. Pinker
v. Perium
v. Seton

Cocks

Coffin

499
592
322

40,

ii.

Jennings

v.

v. Bl...

v. Parker
ii. 190
Cooper ii. 277,278, 379
Coglar v. Coglar
ii. 183

490,

i.

Cockroft

CodringtoD

-J00

i.

401

Vol. Pa

237
ii. 285
i. 307
401,403

v.

274
227

185, 320,
219, 421
i. 248, ii. 71
ii.

i.

i.
i.
i.
i,

440
200
318
385
429

NAMES OF

xlviii

CASE!?.

Vol. P:.pe
i. 430,527
Coining, ex parte
i. 308
Compton v. Collinson
.

v.

Oxendon ii.
590
ii.
80

ord, v.

Sale

Congreve v. Congreve
Coinnusbv, LordjV. Sir

ii.

10

Jos. Jekyll

ii. 227
ii. 340
Conollyy. Lord Howe
257
i.
v. Parsons
Constantine v. Constantine i. 4 12,

4?o
i. 516
Constablev, Constable
C mere v. Lord Abergavenuy
i. 137
i. 100
Cooke's Case
Cook, ex parte ii, 462, 404, 4(i5,

Arnham

v.

<

505, 5(10
55, 57, 58, 59

v.

Broom head

v.

V\h\ worth

319
238, 321
ii.

i.

v.Cooke i. 408, 411. ii.155

v. Duckenlield
ii. <i3

ii. 187, 349

y. Gwyn
v. Martin
ii. 138
v. Parsons
i. 493. ii. 354
i. 97
v. Setree
v. Tombs i. 298,301, 394
v. Wiggins
i. 398
Cookson v. Ellison i. 172. ii. 260,
207
Coornbes v. Gibson
i. 484
Cooper, ex parte
ii. 450
v. Cooper
i. 58
v. Donne
j. 341, 346
ii. 529
v. Pepvs
v. Thornton
ii. 97, 341
Coote v. Coote
ii. 205
Cooth v. Jackson i. 300, 303, 304,
334, 338. ii. 265, 418
Copeland v. Gallant
ii. 493
v. Stanton
ii. 314
v. Wheeler
ii.273
Copley v. Copley
ii. 33
499. ii. 105,
Coppin v. Coppip
100
Corbet v. Barker
i. 417, 418

Corbyn

French

v.

ii.

Vol. Pag*.
19, 50, 52,

53,
Cordell v. Modeu
Conlvseil v Mackarill
Corneforth v. Geer
Cornish v. Mew
Corser, ex parte
Cornwallis's, Lord, Case

Cory

Cory

v.

Cotterell

i.

Hampson

v.

i.

it.

104

ii.

05
505
ii. 502
i. 495
239, 245
35;*, 496
i.

i.

Purchase

v.

20?,

i.

439
294
ii. US
ii. 302
i. 236
ii.

Cotter v. Layer
Cottiugton v, Fletcher

Cotton

Harvey
King

v.
v.

Lutterell
Stratton

v.

Couch

i.

v.

45,

ii.

430
48

ii.

i. 121
v. Mapplesden
Courtney, Lord, v. Godschall i. 70
Courtown, Lord, v. Ward i. 120
Cousins v. Smith ii. 145, 178, 233
ii. 311
Coutsv, Pickering
Coventry, Lord, v. Burslem i. 202
--v. Coventry i. 47,312,

Conrthope

320

Corbettv. Corbett
>

's

v.

~-

v.

Davenant
Tottenham

i.294
Lord, Case
Ladv, v. Lord Coventry

Lord,

's,

i.

v.

441
v.

Clarke

v.

Seott

i.

i.

ii.

392, 395,

390
Cowstad v. Coley
Cowtanv. Williams

ii.

144

140, 148
Cox's Case
i. 13, 490. ii. 377
v. Bassett i. 4SG, 487. ii. 63
i.

Bateman

v.

ii.

Belitha
v. Col ley

v.

v.

Higford

303

v.

Quantock

i.

201

208, 209

138, 140
514. ii. 23, 46

Cowsladev. Cornish

i.

i.

31*2

Lady Coventry
i. 318

Mayor, &c. v. Attorney

General
ii, 05
Cowell v. Simpson
ii. 511
i. 121
Cow per, Lord, v. Baker
v.
Lord Cow per i. 259,

151. ii. 207,

305, 306

Case

58
80

Coysgarne
Crabtree

v.

v.

Jones

Bramble

i.

114

510
i.
159
i. 37
ii. 82
ii. 214
290, 294
i.

xhx

NAMES OF CASES.
Vol. Pajre.

i.321

Craig

v.

liohon

217
307
229

ii.

ii.
Cranbornv. Dalraahoy
Crane v. Drake
i.
Cranmer, ex parte ii. 508, 571,

573,575
Cranmer's Case
Craiibtown,

Lord,

ii.

i.

237,

ii.

Wright

ii.

Crawle
awley v. Clarke

ii.

Craven
Crawle

v.
v.

Crawshaw

v.

Collins

37

Johnston

v.

i.

i.

302
280

exparte

ii.

462,476

157
433
i. 55. ii. 71, 72
ii. 517
Cripps v. Tee
i. 42
Crisp, exparte
ii. 4G2, 474, 507
Crisp v. Perrit
ii. 402
Crockat v. Croekat
ii. 75, 77
i.
Crockford v. Alexander
121
Croft v. Linsey and another i. 40
i.
V.Powell
413
v. Pyke
i. 77, 471, ii. 342
Crommelin v, Crommelin ii, 29
Croinpe v. Barrow
i. 49,50
Cromptou v. S ile
ii, 30
Crooke v. De Vaudes
ii. 83, 85
Crosby v. Murray
ii. 43
i. 207
v. Wadsworth
Cross v. Andrews
ii. 592
Crossing v. Scudamore
i. 44
Crosly v. Carrington
ii. 555
Crouch v. Martin
i. 437
Crowder v. Clowes
ii. 74
Crowe v. Ballard
i, 213

Cressett v. Milton

Creswell v. Byron
Crickett v. Dolby
Crinsoz, exparte

ii.

Barley

VtOrby Hunter

205, 290

i.

Cull v. Showell
10
ii.
Cullen v. J)uke of Queensburj

ii.

145
179
545

ii.

518

ii.

Culley v. Hickling
Cutne, exparte
Cundall, exparte

Cunningham

Currie
Curtis

ii.

v.

Cunuingham ii.
373,440

v.

Moody

Pj
v. Curtis

v.

'

317
428

i.

95,

ii.

187, 10S,

i.

351

ii.

Hatton

v.

v.Perry
v. Price
v.

Curry
Cusac

50

ii.

42, 43, ii. 102

i. 222, 253

i.

Smallbridge

ii.

v. Pile

409
73
51

ii.

Cusac
Cutlet v. Smith
Cutt's, Sir John, Case
Cutter v. Power
y.

i.

ii.

17(>

57G
i. 33

ii.

i.

Croyston v. B;ines
i. '305
Cruise v. Bishop of London
v.

1:1

i.

flutter

v.

D.

ii.

Cruse

Lye

49-2

102
Cray v. Mansfield
i. 95,
ii. 82
-v.Willis
ii. 589
Creagh, exparte
v. Wilson
ii. 25
ii. 221
Creswick v. Creswick
Creuze v. Hunter i. 489, ii. 378,
396
v. Lowth
i. 489, ii. 441
Cr..'w,

Cud

v.

14

165

77, 78,
ii.

Vo

Crutwell

ii.
i.

Da

Costa

Dagley

v.

Dalbiac

Dale

v.

Da Costa
Crump

v.

v.

Dalbiac

224, 388
290, 202
L77, b78.

ii.

ii.

i.

472
43

Smithwicke

i.

Daley, exparte
i. 17
Daley v. Desbouverie
ii. 24
Dalston v. Coatsworth
i. 258
ii. 520
Dalton, exparte
ii. 319
v. Carr
Daniels v. Davison i. 300,363,
ii. 10 J, 255
v. Ship with
i. 419
Dann v. Spurrier
i. 216
ii. 00
exparte
i.
Dauvers \. Manning
7
i. 423, ii. 127
Darcey v. Hall
.

<

Darkin v. Marye
Darlpy v. Darley
Darling v. Stamford
Darlington, Earl

of,
i.

Darnel

v.

ii. 363
273,376
ii. 315

i.

v.

48,

Pulteney
43, 34?

ii.

Rayney

1!)2

Darrell v. Molesworth
Darwent v, VValtou

110
203

Darwin v, Clarke
Daughbigny v. Davallon

ii.

27:!

ii.

ii.

ii.

20
12

299

ii,243

NAMES OF CASES

Vol. Va^e.

Vo'. Pago.

Darston

Earl of Oxford

v.

i.

ii.

Darwent

ii.
Walton
Lord Bulkley

v.

Dashwood

v.

Blythway
Peyton i.

v.

Davenhill

v.

v.

ii.

Foley

v.

Russell

v.

i.

Edward*

v.

Gardiner
Jones
Lee
St rat h more

v.

v.

Trotter

v.

v.

Dawson

i.

183,

ii.

185
v. Killett
v.

Day

v.
v.

Parratt

Merry

. 14
ii.

j.

Newman

I.

421
117

330

4
Deacon v. Smith i. 312,313,481
Deaue v. Test i. 443,445, ii. 10,16
D*an of Dublin v. Dowgate i. 10
ii. 87
D*an v. Dal ton
i. 227, ii. 430
DeWenham v. Ox
ii. 80
Debese v. Mann
De Carriere v. De Calonne ii.182,
183
ii. 51,57
Decosta v. De Pas
i. 235
Decosta v. S'candrett
ii. 540
they, exparte
ii. 2
Decks v. Strutt
ii. 511
Decze, exparte
ii. 500
Degge, Simon, exparte
i. 494, ii. 124
Deggv.Degg
ii. 288
Dc-'ggs v. Colebrook

v.

Tri

"

"

v.

"

87

211

122
429
i. 475
ii. 15
i.

ii.

Dennison, exparte
IWkliu'jrton

i. 81
Denton v. Skellard
i. 350
Denton v. Stewart.
Derby, Earl of, v. Duke of Athoil
i.

Deschamps

82,

ii.
ii.

Dench v. Bamptoa
Denn v. Russell

520, 521

v.

202, 204, 391

De Mazar v. Pybus
De Minckuitz v. Udney

ii.

27, 31

ii.

i.

i.

i.

ii.

De Manneville

v.

Denvent

Attorney Genera) ii.

263, 272
i. 324, 350
Daw v. Barber
i. 307
Daw" v. Lord Chatham
ii. 80
Dawson v. Clarke

Davison

146
295
ii. 159
Deiancy v. Wallis
ii. 423
Deli Hi n v- Gale
i. 08
Delmare v.RobeHo
De Manneville v. Crompton
i. 209, ii. 124

De Golls v. Ward
De Graves v. Lane

312
ii. 170
ii. 258
474, 402

West

v.

ii.

i.

Topp

v.

ii.

421
ii. 90, 201
ii. 49
i. 483, 501

Davis
v.

89
39
208
12S

82,
ii.

Davies v. Austen i. 435,

Davis v. Lord Brownlow

v.

421

Pref.

ii.

1) ewey

Davidson

440

i.

301
518, 519,

Davers

v.

ii.

wit
ii.
94
Fletcher
Lord Bulkeley ii. 30

v.

Davers

468
341
142

v.

101, 171,

White

Desanthuns, exparte

Desbody

v.

Boyville

Descartet

v.

Dennett
v.

i.

Vanneck

ii.

of,

dish

Dick

v.

Milligan

471
2!)

ii.

32
492
403

ii.

157

27,

493
ii. 39
17, 18
i. 432
i.

Devism v. Millo
Devon v. Walls

Dewduey, exparte

ii.

i.

Deth'uk v. Carravan
Devese v. Pountet

Duke

240
144

ii.

Detastet, exparte
De Til Ion v. Sidney

Devonshire,

ii.

ii.

ii.

v.

Caven-

i.49
479, 503,
ii.

510
550

ii. 185
v. Swinton
i. 229
Dickinson v. Lockyer
Dickes v. Lambert ii. 85, 88, 00
i. 428
Digby v. Craggs
i. 411
Dighton v. Green vil

588
250
ii. 130
i. 114,125
i. 389
Diramock v. Atkinson
i. 70
Dinwiddie v. Bailey
ii. 485
Dixon, exparte
ii. 340
v. Dixon
v. Parker
ii. 297, 310
i. 442
Dobbins v. Bowman
ii. 251
Doble v. Cridland
ii. 487
D'Obree, exparte
ib.
Dobsoa v. Leadbeater

Dikes, exparte
Dillon v. Alvarez
v. Francis
Ditty v. Doig

ii.

ii.

NAMES OF

(ASKS.

Horner

v.

Dodsley

v.

442

Draper

113, 126,

Drewe

'*54,

ii.

Kinuersley

i.

287
i. 177, ii. 400
Dodson v. .ludd
ii. 2
Doc v. Guy
Doe Oil dein. of Bristow, v. Pegg
i. 412
of Dacosta v. Wharton

Doe

Borlan

v.

Corp
v. Hanson
Drew v. Power
v. Vernon

v.

Drinkwater

Drohan
Druce

v.

185

i.

48
Simpson

Wilier

i.

on dim. White

v.

i.357
Doiley v. Sparrat
Doleraine v. Browne

367

i.

79 80,

i.

206
Dolderv.Bank ofEnglaud ii. 290
v. Lord Huntingfield ii.
'227, 200, 290
i. 319
Dolman, exparte
i. 470
v. Weston
ii.211
Donev. Peacocke
.

Donlevy, exparte
Donne's Case

Donne

Lewis

v.

ii.

Denison

i.

474,
v.

78
573
549

ii.
ii.

i. (>7
Door v. Geary
55
Doran v. Ross
v. Simpson i. 229, ii. 153
Dormer 's Case ii. 569, 581, 585
Dormer v. Fortescue i. 72, 73,
74, 102, 197,198,408, ii. 225,
227, 230, 281, 349, 405
i.

Dornibid

Dornford

v.

i.
ii.

Doughty
Douglas

Dove

v.

ues

v.
v.

Bull
Clay

10S
377

ii.
ii.

Dove
v.

491,
115

ii.301

Company

Last India

ii.

Dun

exp:irte

v.

i.

85
90,

4S

Ib5

ii.

Duteus

v.

i.

221, 298,
ii.

Dungev

Angove

v.

Dunn v. Allen
Dunne v. barrel
Dunny

v. hi

more

i.

414

142, 143,
144, 145

397
347
412

ii.

ii.
ii.

Duplessis, exparte

i.

19

ii. 228
Durant v. Redman
Durbaue v. Knight ii. 390, 421
ii. 282
Durnfordv. Lane
Durour v. 3Iotteux
ii. SI
Dins ley, Lord, v. Fitzhardlo5, 158
inge
i.
i. 134
Durston v. Sandys
Duttou v. Morrison
112,431.
ii. 4C4

Dwyer
Dyer

Lade

ii.

17

i.

v.

Dundass

Draper's Case
Draper's Companj

255,
Davis

i.

Cotes

v.

i.

230

310, '370
ii. 34, 43

i. 352, 433
Kent
ii. 150
Dnncoinbe v. Hansley

223

ii.

314

75, 77
i.

i.

v. Drury
v.Hooke

Dnnch

100
Downshire, Marquis of, v. Lady
ii. 181
Saundys
i. 118,
Dowset \. Sweet
i. GS
l)<>\ ley v. Powis
i. 3C2
Drake v. Robinson
i. 56, 57
Drakeford v. Wilks
ii. 32

v.Thomas

ii.

283,309
i. 227
v. Molius
i. 120
ii. 489
v. Mann
Duckworth, exparte
u. 474
i. 4U8
Dudley v. Dudlev
i. 186, ii. 430
Duffv. Atkirisou
ii. 494, 511
Dumas, exparte
Duminer v. Corporation of Chipii. 129, 147
penham

Drurv

i.

Lord, Case
Donovan, exparte
-'s,

343

82, 211
n.

:J->1

ii.

Stewart

342, 343
i.

l.

Drohan

v.

v.

530, 531
ii.185

Dounegal, Marquis of,

Dow

i.

Falconer

v.

211

i.

ib.

Routledge

v.

J'. .'.'.

Vol.

Vol. Patre.

Docker

Lvsaght
Lord Craven

v.

v.

Dyer

v.
v.

llargrave

V.

Timewell

Dyke
Dyose

v.

v,

Sylvester

ii.

81

413
ii. 99
310, 342
ii. 430
i. 24S
i.

Dyose

ii.

E.
Eacl es v England

95

ii. 20
Lingood
ii. 337, 338
ii. 451
Eagleton v. Kingston
Ealesr. Englaud
304

v.

NAMES OF

lil

CASES.
Tol. Page.

Vo!. Pnye.

Eames

Hancock

v.

Ellibank, Lord,

23
i. 310
443. ii. 45
ii.

Earlom v. Saunders
East v. Cooke
i.
Ka-t India Company v. Bodam
i. 22,23.
ii.37l
Campbell

v.

v.

Clavell

v.

Donald

v.

Evans

v.

Henchman

v.

Neave

i.
i.

64.

Elliot v.

339

60.

Saudys
v. Vincent
Ryal
Thoruberry
v.

East

v.

v.

Eastabrooke

v.

Eastwood

Vinke

Scott
Easthamv. Liddell
v.

i.

ii.
i.

280

ii.
i.

39.

ii.

30,

37
30,31
ii. 99
Echiift'v. Baldwin i. 294, ii. 258
Eden's Moreton Case
ii, 125
v. Foster
ii. 00
-, Sir John, v. Earl of Bute
ii. 374
Edgell v. Haywood
i. 241
Edmonds v. Bovey
i. 421
v. Townshend
i. 389
Edmund son v. Hartley
ii. 252
Edwards, ex parte
i. 204.
Eaton

Lyon
Ebrand v. Dancer
r.

i.

471,479,514
ii. 489
Carrol
ii. 410
Freeman
i, 34, 507,
ii.

v.

- v.

v.

v.

Moore

ii.

98

Countess of Warwick
i. 290, 326, 327
Effingham, Lady, v. Sir John

v.

Napper
,

ii.

Lord,

v.

Ekius

ii.

v.

Dormer

v.

Macklish

Eld.idge v. Porter
Ek-ock v, Glegg

353

Lord Borts-

mouth
<

228, 470,

ii.

456, 494
70, 71

Walker

v.

Ellison

Airey

v.

ii.

I 484.

ii.

89
10,

131

278
ii. 79,80
i. 327
183, 229
ii. 463

Burgess

v.
v.

Cookson

v.

Ellison

ii.

Elmsliev. Macauley i.
Elton, exparte
v. Elton
i. 55. ii. 18, 71
Elwin v. Elwin
ii. 14
Ely, Dean and Chapter of, v.

Warren

Emery

Emmerson
Emperor

340

ii.

Wase

v.

Heelis

v.

v.

311, 337,
ii. 537, 557

i.

Rolfe

299
398
i. 212
n. 69
i.

i.

Englefield v. Englefield
Entwistle v. Markland
i. 274
Errat v. Barlow
Errington v. Attorney Gen. ii. 203
v, Avnesly
i. 29, 330
v.

Chapman

i.

274

ii.

v.

Esdell

v.

Ward

Buchannan

71

n.360
i.

ii.

417,

228

i. 378, 380
Essex v. Atkins
ii. 184
Etches v. Lance
Eton College v. Beauchamp i. 25
i.
209, 409,
Evans v. Bicknell
410,412. ii. 338
i. 98
v. Cheshire

v.

Cogan

Evans
v. Lewellvn
Evelyn v. Evelyn

v.

ii.

292

ii.

185

i.

209

ii.283

v.

i. 403, 404,
477, 478, 519. ii. 23
Foster
ii. 559, 5iiQ

353

v.

Templar

i.
i.

406
202

378

i.

ii.

Applebee

508, 509, 510, 511, 514, 517,

518. ii. 90
~
v. Craves
i. 493
-

i.

v. Ellis

186, 220

i.

337

Atkinson

v.

173
210
428
173

i.

100

i.

482

227

Merriman

ex parte

Ellis,

143,

ii.

ii.

Hele

v.

227
i.

512,513,514
ii. 19, 20

v. Elliot
v.

109, 173
ii. 225,

i.

v.

Davenport

v.

338,

ii.

140
i. 388. ii.
Montolieu i.388
Collier i. 400, 506, 511,

,Lady,

232
S26

ii.

Montolieu

v.

Pref, xxi

ii.

i.

216

NAMES OF CASES.
Everett

Vol.

T't.'P.

ii.

4i 4,

Backhouse

V.

Ewelme Hospital

v.

544
Andover i.

1)11

Vol.

Fellows

Mitchell

v.

Head

Fells v.

Fenhoulet

Corbett
Wallace

229
Exell v.
i. 401, 464
Eylesv. Ward
ii. 388
Eyre's Case
318
Evrev. Countess of Shrewsbury
i. 263, 264, 265,278,282
v.Wake
ii. 574
F.ytou v. Eyton
i. 258, 259
v.

i.

221, 222

Browne
Hughes

v.
v.

199

Feigns, executors

499.

i.

n.

FentOD

ii.

306

i.

172

Gore

of, v.

i.

v.

Rfoystyn

Enever

l'airlainl v.

ii.

Freeman
Fairman v. Green
Fairly

v.

Falkland, Lord,

Fallows

v.

Fane

Bench

v.

v.

ii.
i.

Bertie

Wilkinson

ii.

Farewell v. Coker
Farr v. Newman

Fanshaw

152
433
378
274

i.

Fanshaw
Burroughs

35,

i.

444
308, 402
i. 515
ii. 434
i. 467

i.

Fabrics

.-.

lis

i.

Passavant

v.

141

Ewer

i'<

ii.

Feme, ex parte
Ferrand
Ferrur
Ferrars

ii.

57 S
179
221

ii.

258

ii.

Prentice

v.

i.

Ferrer
v. C'berry
Ferrers \. Ferrers
Ferreges v. Robinson
Fetti place v. Georges
v.

489, 4<H

i,

i.

i.

475

375, 377,

37S
Feversham

Watson
Evans
v.

Fidelle v.
Field v. Jackson

Fielding

v.

14

94
i. S8
ii. 328

Clayton
Finch v. Finch

241

297

ii.

Fife v.

173.

331

ii.
i.

Bound
Win wood

v.

i.

i. 47,
103, 172.
41. 98, 100,147,274

ii,

Nesbridge

377
502,477
119, 120
i. 120

v.

Newnhaiu

v.

Squire

140
259
ii. 52

v. Karl of

Winchelsea i.42,

Farrar v. Lewis
ii. 177
Farrington v. Knightly
ii. 3
Faulconberg, Lord, v. Pierce ii.

Findlay

v.

Farnham

v.

Farr, ex parte

Farrant

Faulder

v.

Lee

v.

Lovell

v.

Fawcet

v.

Fawell

i.

v. Silk

ii.

Stuart
Fotheraill

ii.

ii.
ii.

3G9
ii. 578
137, 270

Gee

i.

v.

Lowther

i.

v.

Fawkener

Heelis

ii.

Watts

226
303

105, 107

511,512,
ii. 291
Fearnsv. Young
i. 68. ii. 422
Fearon, ex parte
i. 206. ii. 451
Featherstone v. Cooper
ii. 557
Featherstonehaugh v. Fenwick
v.

Feize

v.

Randall

i.

78. ii.492
220. ii. 543

Fell, ex parte

v.
v.
v.

lege

294,314,303.
Fisher's Case

Fisher

Bay ley

v.

Company

Fishmonger's

i.

v.
v.

128
142,

410, 411

217,307.

Burk

ii.

4SS
250

Faueonbridge

ii.

255, 25

Succomb

v.

Fitzhugh

v.

Lee
Clarke

Flanders

v.

Flarty

Odium

v.

East

i.

ii.

Fitzgerald

Fleetwood

v.

i.

Fletcher, ex parte

v.

Dodd

.- v.

ii.

ii.

493
344
458, 580
i.

ii.

i.

ii.

Robinson

282
202

ii.

Ash burner

Master of Christ's Colii. 101

v.

ii.

159.

Green

Bathurst

ii.

i.

ii.

Fitzerv. Fitzer

v.

Browne
Lutwidge

v.

India House
Fitton v. 3Iacclesfield

78
144, 150
ii. 333
i.

397,404
ii. 296
ii. 459
ii. 286

ii.

Wood

v.

i.

i.

i.
i.

165

ii.

v.

v.

ii.
ii.

2S9.

109

509

195, 198
i. 2 13

NAMES OF

liv

CASES.
Vol. Pa*e,

Vol. Page.

Fletcher
Flint

v.

Tollett

i.

319.

Brandon

v.

Field

v.

Flower
Floyed

v.

Floyer

v.

Herbert
Powis
Laving ton
Shcrrard

v.

v.

Foden

Ford

i.

320

Penn
Fraine v. Dawson

ii.

137

Franco

i.

131

i.
173, 185
Franco i. 383. ii. 141
Frank v. Frank
i. 62, 326
Frankland v. Franklaud ii. 308,

342
i. 415
i. 213
344, 350
i. 515
i. 1S2
ii. 398
i. 340

v.

j.

v.

v.

140

ii.

Cocker
Howlet
Foley v. Burnet
Folkes v. Western
Folkingham v. Croft
Fonerau v. Fonerau
Fludyer

ii.

ii.

314
Franklin's Case
v.

v.

v.

(58

v.

312
339
7G

v.

i.

v.

Compton

ii.

Fleming

ii.

v.

Peering

v.

Franklyn

227
312
i. 260
343, 367
ii.

Forderv. Wade
Fordes v. Denniston

ii.

Ford
Forrester's Case
v.

i.

v.

v.

Vassal

v.

Foster

v.
v.

Hale
Marchant

v.

Munt

502
47, 49

ii.

291

ii.
i.
ii.
ii.

Dear
Freeland v. Johnson
Freeman, ex parte ii.
French

v.

v.

Foulds v. Midgley
Fountaine v. Caine

Fowkev, Hunt
v. I.rvv.n
i.

250
ii. 340
ii. 342
41, 47
ii.

i.

100
354
i. 512
515
i. 513,
392. ii. 37,38
i. 471
i.

ii.

Macreth i. C4, 92, 94.

289, 304, 370, 37!, 387
*01
i.
Foxcroft v. Lyster
ii.

v.
v.

Foy

v.

Pans

i.
ii.

87

37, 54

276,

46

ii.
ii.

136

221, 253
436, 468,
470, 473, 478
i. 411
Barnes
101
i.
Bishop
ii.

Freeman

i.

87

Goodham

i.

Pref.

Freemantle v. Banks
Freemoult v. Dedire

i.

314, 480,

v.

French

v.

Baron

v.

Davis

84, 87, 89

v.

Foy

v.

163

ii.

Frederick i.
289, 293, 294.

v.

v.

v.

Frewen
Frewin

v.
v.

v.

Fritwell

Fry

v.

ii.

Hobson
Roe
Relf
Charlton

v.

481
427
47, 49
ii. 122
ii. 159
ii. 84
i. 395
i.

Preston

ii.

Kaye

Porter

34

i.

Frith, ex parte

Frost

viii.

ii.

76, 303

5^4, 589

Wassail
Fotherby v. Harrridge
v. Pate
Fothero-ill v. Fother"ill

David

v.

i.

v.

Fowlerv. Fowler,
Pox v. Fox

361

ii.

Blagden
Cooke i. 484.

316
530
379
Jii. 313
ii.

ii.

Fraser v. Bailie
Frederick v. Aynscombe

479
v.

ii.

Colquhoun
Fenn

v.

125

i.

ii. 40
Cotton

i. 477,
v. Lord Leigh
478, 503, 505
Forsyth v. Grant
ii. 44
Foster, ex parte
ii.
458, 476,

v.

451
Lord Brownlow
i. 333
ii. 382
Colquhoun
i. 229
Feme
i. 44
Franklinii. 116
Frith
ib.
Smith
Thornburgh i. 285

v.

168, 188, 189,

i.

i.

v.

v.

v.

227
302
ii. 3

ii.

Alvares
Bolton

v.

70
ii.

Fordyce

v.

13, 14,

Poyntz

v.

Foy

ii.
i.

Pref.

viii.

319
429
390
xxi.

24
48S
75, 76
ii,

Flood
v. Morris
Fuller's Case
Fryer

ii.

v.

ii.

519,
i.
Furnival v. Crew
i.
Fursacre v. Robinson
ii. 541,
Fydell, ex parte
ii.

521

309
326
543

names of cases-

It

Vol. Page.

G.
Gage v. Bulkelev i. 147.
v. Lord Stafford

Lady

v.

Strafford

Gainsborough,
Clifford

249
ii. 214
ii. 218
ii.

Countess of, v.
i. 64. ii. 336, 340
Lord
Lady,

Gainsborough
Gale v. l.iiido
Gallivan v. Evans

238
118

ii.

Garbut

Hilton

v.

Gardenner, ex
- v.

Gardiner

ii.

Gibbs

Mason

Gardner,

ii.

of,

Bradley

Donovan

Garland, ex parte
v. Garland
Garlicke V. Pearson

Gam

ii.

ii.

Gam

v.

i.

v.

Mevrick

v.

Ward

Carthshore

v.

v.

Gascoigne
GaskelTv.

v.

110
Bott
h. 65,66, 68
v. Clarke
i.
351
v. Doll
ii. 66
v. Jeyes i. 95, 213, ii. 573
v. Lord Mountfort
i. 57,

Paterson

v.

Rogers

510
i. 372
ii. 280
ii. 505
192, 193
174, 178
i. 57

v.

Scudamore

i.

v.

Seevington

ii.

v.

Smith
Whitacre

Kinven

v.

ii. 72
i.420
i.

312, 313.

Isherwood

07
91.

i.

410
98

i.

289
250
328
357
269

15
< u
k
ii. 151
v. Durdin
Gawler v. Standewicke ii. 14, 21
v. Wade
ii. 153
< .a) tor, ex parte
ii. 472, 473
Geary v. Pearcroft
i. 364
v. Sheridan
ii. 351
14,

i.
i.

i.

164
114

ii.

240

Hort

v.

i.
i.

203.

ii.

191
146,

370
Manley
Gilbert, ex parte

Boorman

v.

Matthews
Verdedun
v. Watson
am, ex parte
v. Locke
v.

Girling

i.

160
123
287
291

ii.

32i

ii.
ii.

v.

n. *

Severn
Lee

..25

Gladwin v. Hitchman
Glaister v.

221

i.

Wray

v.

17

379

588, 590

>

Gillet v.

Gil more

585

ii.

v.

114

ii.

-ii.

Gill v. Attorney General

Gil

ii.

ii.

Gildart v. Moss
Gildeniehi v. Chamock

Hewer

388, 396.

488

ii.

Glanville

Glass

v.

v.

Fenning

v.

Payne

Gleuorchy, Lord,
Glover

227

i.
i

Oxenham

ii.

v.

v.

Bates

v.

Faulkener

43*

i.
.

ii.

ii.

249,

Girlbrd,exparte

114, 119,205,

ii.

i 1

1.285
108,

v.

i.

Thwing
Harman

ii.

Skin-

v.

ii.

Garthside

499.

i.

v.

i.88

Chahe

ii.ll

v.

393, 397

Ongier

Gibson

..

Cotton

323,

295,

328
506, 474

514
Garrett v. Pretty
ii. 25, 26, 29
Gason v. Wordsworth ii. 203, 205
Gartside v. Gartside
ii. 252
- v. Isherwood
ii. 357
v. Rate-line
i. 259
i.309
Garth v. Baldwin

Cole

171, 187

Garnons v. Bernard
Garon v. Trip pet

v.

v.

ii.

v.

i.

300, 327,

ii.

ex parte
Assignees

220,495
m.530

i.

Cau nt

v.

528

ii.

ii.

373, 374

i.

324

ii. 18
477, 539

Shannon

v.
v.

ner
Garforth
Garish v.

parte

157

v. Hills

ii.
154
Galston v. Hancock
Gallon v. Hancock i. 408, 505. ii.

{71

61

i.

Gibbons, ex parte
v.

502

ii.

91

ii.
i.

Vo'. P..?*.

Gedge, ex parte
Gee v. Spencer
Gell v. I lay ward
George v.
v. Mil bank

Bosville

51
;:>:,
i-

447,450
i. SC9
ii.

NAMES OF CASES.

lvi

Vol.

Glover v. Portington

307
Clyde v. \\ right
ii. 70
Glynue v. Bank of England
i. 22. ii. 324, 332, 359
Goate v. Fryer
ii. 377
Goddard v. Pritchard
ii. 109
Godfrey v. Boucher
ii. 550
Strothorf

v.

- v.

v.

v.

Gofton

v.

v.

Goman

v.

Davis

ii.

Turner
Watson

474
234, 482
ii.

Mill

i.

Sedsrwick
Salisbury

4U

ii.

Spray

v.

Goodwyn

v. 4.ister

ii.

Good) ere v. Lake

Goold v. Tankard
Gordon v. Plunket
v. Ray nes
v. Rothby
v. Simpkinson

ii.

ii.

ii.

v.

558
39a
400
219
21

ii.

202.

Gore

123

i.

Purdon

ii.

304

i.

175,

ii.
ii.

149
370

Gorge's, Lady, Case

ii. 100
Goring, ex parte
ii. 527
v. Nash
i. 41, 287, 327

Gosling

v.

Dorney

Tracey
Gould v. Tancred
Gosfl v.

Gourlay

v.

Duke

i.

473
324
i.
425,427,
ii. 410, 412
208,

Londonderry

ii.

Grave

81
Gravenor v. Ilallum
ii. 82
ii. 44
Graves v. Boyle
v. Budgell ii. 320, 301,

Gray

v.

White

v.

Powell

Chiswell

v.
v.
's,

Mathias
Lord, Case

Graydon

i.
v. Hickes
Greatorex v. Cary
Green, exparte
v.Belchier i. 403,485. ii.7l
v. Charnock
ii. 217, 218
v. Ekins
i. 53, 81, 90

v.

Lowes

v.

Pigot

v.

P ritzier

v.
v.

179, 180.

ii.

14

279
01, 239
i.

Rutherforth ii.
Smith i. 289, 290, 291,
Stevens

v.

Greenaway

v.

325
450

i.

Adams

350.

i.

393
302
ii. 497
ii. 509
ii. 548
ii. 210
ii.

Greenhill
Greening, ex parte
Greenway, ex parte
Gregg, ex parte
Greenhill

v.

i.

Gregorv. Lord Arundell

Gregory v. Molesworth
Grey, ex parte

v.

Minnethorpe

25
519

132

i.
i.

Cockerill

ii.

444
209
i. 493
ii. 355
i. 180
ii. 99
30. ii. 29
ii. 47
ii. 547
i.

Kentish

ii.

90, 91,92
ii. 79,

Lord Salisbury

v.

v.

134

i.

v.

98, 99

30
377

ii.

i.

i.
i.

v.

ii.

of Somerset

Gowland v. De Faria
Graydon v. LIU key
Graham, exparte

Graham

Granard, Earl, v. Dunkin i. 125

Granger, exparte ii. 500,509,540
ii. 200
Grant V. Barber
v. Jackson
i.
170
v.Stone
i. 4
Granville v. Duchess of Beaufort

323
283

i.

v.

17

24, 1G2
i.420, 427
i.

Gompertz v.
"i. 348. ii.
Gong v. Radford
i. 411
Good v. Blewit
ii. 145
Gooday v. Butcher
i. 44
Good fellow v.Burchetti. 4G8.ii.39
Good ha li v. Harris
i. 278
Goodier v. Ashton
ii. 352
Goodinge v. Goodinge
i. 08
v. Woodhamsii. 272,284
280
Goodman v. Purcell
i. 490
Goodright v. Sales
i. 408
Goodtitle v. Morgan
i. 255
Goodwin v. Archer
ii. 217
v. Goodwin i. 55. ii. 289

Graham

i.

Godwin, exparte
-'

Vol. Page.

P.'i-TP.

ii.412

Gricev. Goodwin
Griegnier, ex parte
Grid Is v. Gansall
Grier, ex parte
Grierson v. Eyre
Grieves v. Case

353,

ii.

354
534
ii. 434
385, 387
i. 470
ii.

i.

ii.
ii.

ii.

ii.
i.

ii.

358
534
315
547
113

54, 5G

HA
\

Griffin

I>.

Vo\

Nansoii

i.

-',

Taylor

i.

319

Griffith

v.

Hamilton

v.

Harrison

II

Haberghara

194,197
85,86,87,

v. \

ere
n.

Grimes

\.

Grimmett

G rimstone, ex

parte

Hales

ii.

514

v.

530, 547

v.

Grosvenor, ex parte
ii. 517
Sir Richard, ex parte

v.

Potts

v.

ii.

v.

Lane

i.

Grove, ex parte

ii.

v. Dubois
Grumbleton, ex parte
Guavers v. Fountaine

Gudgeon
finest v.

Guidot

ii.

ii.

i.
Guidot
Holland

v.

i.

316.ii.
i.

v.

Noyes

v.

Potter

Guise

v.

i.

Gulatorr, ex parte
v.

Guralej
v.

v.

Gurish

Dale
Fontleroy

362
518
330
108
405.

Halsej

v.

v. 1)oih)\

an

Gurney v. Longman
Guth v. Guth
Gwillim
Gwinett

v.

v.

Stone
Bannister

Gwyne, ex parte

Gwj nne

v.

v.

Heaton
Lethbridge

GyrTord, ex parte
Gyles v. Wilcox
v. Hall

VOL.

I.

i,\
ii.

370
457
458
269

220.

i.

301,2
ii. 419
i.
i.

124
307

350
i. 113
in 519
i. 37
ii. 375
i.

i.
i

i.

191
126

428

ii.

15
165
158

n.

252

n.

165

473.

ii.

i.

57 s
330, 337

i.
i.

401,402
100, 3:57

270
310
i.
54

i.

i.

ii.

2(17

i.227

Smith

ii.

v.

Terry

v.

Warren

Hamilton

300

ii.

i.

i. 427
Lady Ger-

Denny

v.
,

104, -242

Prior

Gunter

ii.

39,40

21
287,338. ii. 578
i. 102
Hallett v. Bousfield
i. 28
Hallifax v. Hi-gins
ii. 215
Halsam, exparte
i.
342,343
Halsey v. Grant
i. 41
Halston's Case
Hambling v. Lyster ii. 14, 74, 70
i. 424
Hamerton v. Rogers

11

ii.65

Guise

287

ii.

Hardy
Hewer

v.

v.

ii.

ii,

Butler
Carter
Daniel!
Hall

11

i.

v. Ramsden
Homphray

(juillam

i.

i.

389
517
513

i.

v.

129

470, 477

i.

v.

i.

Curratt

v.

12

i.

ii.381

Webb

Hall, ex parte

v. Lord Bruce
20
ii. 505, 507,
Groom, ex parte

Gun

amp

v. Sntton
Halfhide v. Fenning
Haley v. Shaftoe

~>1

Rolliston

183

ii.

v. Slial'to

565, 566,
582, 586, 591

v.

525
ii. 53
ii.
139

French

v.

Grimmett

Hail

ii.

ase

32

i.

HarTey

v.

Hairby v. Emmett
Hale v. Cox

293, 420

Grignier, ex parte

1,439,

Haigh, ex parte

Wood

\.

i.

Leonard

v.

Hague

90
49
ii. 00
i. 213
366
i.

Rogers
Sprat by

v.

lak

Haffej

89,

\ incenl

v.

18(

ii.

ii.

I\il

ol.

\.

CASES.

t'i

102, 124

v.

Griffith

Vuiilt:

VIES

Duke of,

v.

Duke

of,

rard
,

v.

Mohun
v.

Hamley
Hamlyn

301
Lord

ii-

\.

v.

Hammond

Worley

i.

Fisher

Lee

i.

ii.

v.

Anderson
Douglas

v.

Toulmin

v.

i.
103
470. 506

Hamond v. Word-worth
Hampden v. Hampden

503

165, 363
ii.

5l!>

i.70
il.
ii.
i.

546
425
258
467

ii.
Hamper, ex parte
120
v. Hodges
Hanaj v.M'Entireii. 177,184,185

Hampton

i.

NAMES OF

lviii

CASES.

Vol. Pnge.

Hanbury v. Hanburv
ii. 33
Hanby v. Roberts i. 408,500,502,
503

Hancom

v.

Allen

Hancox

v.

Abbey

Handeock,

Han key,

116
i. 475,470
ii. 558, 500
ii. 548
ii. 505

at;-.

Hammond

v.

Simpson

i.

v.

Vernon

ii.

515

v.

Stevens

ii.

141

Hannis

v.

Packer
Gardiner

i.

480

104, 121,
132, 130. ii. 177, 285
v. Graham
ii. 12,13
Harcourt v. Sherrard
ii. 287
v.

i.

v.

Hardcastle

Weymouth

v.

ii.

v.

Glynn

i.

Kardins

v.

Ilardwicke

v.

Forth
Harrison

v.

Hogg

Myud

ii.

ii.

v.

Rumsev

v.

Southcote

ii.

i.

i.

90
206

I!.

104

Vernon

Hardy v. Reeves
Hare v. Shearwood

Harton

v.

i.

357
70
490
470

i.

132

i.

ii.
i.

v.

Aston
Ashley

v.

Desbonverie

v.

East India

Company

v.

Harvey

i.

Harvey

v.

ii.26,
i.

Harman

v.

Camm

v.

Fisher

Harmood

v.

Oglamler

Thomas,

Sir

60
432

gue
Harwood

i.

113

Hase v. Groves
Haslewood v. Pope

474.

71,72

ii.
,

i.

i.

360

ii.

ii.6

v.

v.

Toc.ke
i.

Mountain 359
i. 437
i. 33
57, 500,

n.351
Harrison, exparte

ii.5I4

Kurt v. King
Kartopp v. Hartopp

i.

ii.

Whi'ttnore
Harrington v. Du Chattel
v.

v.

Harris

Wheeler

v.

Barnes

v.

Da u beney

v.

Harris

v.

Jngledew

v.

James

Mitchel
Pollard
v.

79
i. 134
i. 329
ii. 53
ii. 290
ii.

Simpson

v.

V. Smithers
Haster v. Weston
Hastings, exparte

Hatch

Tremenhere

55.

ii.

ii.
i.

ii.
i.

ii.

325
200
234
403
95.

417

ii.

211

ii.58S

Hatch

v.

ii.

503
432
497

ii.

103

i.

Haye's Case
Hayter v. Rod
Hathornwaite v. Russel

453.

ii.

407

i.

131.

i.

189
88
ii. 71

i.428
i.

v.

Harris

518

34, 79

Hassel

46

275, 376.

Haimerv. Plane

511.

i.

ii.

302
481 494
i.

27

283, 284, 285,

332

i.

Harqrave v. Tindal
Hurland v. Trigg

255

ii.

ii.

-,l.ord, v.

255

54, 217.

Hartford, Mayor of, v. Poor of

Hartford
ii. -301
Hartjm v. Bank of England ii. 12
Hartley v. Hobsou
ii. 177

Harton

149
53
ii. 174
ri. 354
40. ii 6
ii. 224

164, 173,

i.

Middlehurst

v.

21

400
356

ii.

ii.

Hart

52. 496.

i.

ii.

Ridley

v.

13

258
IIS
235

ii.

Hartop, ex parte
Hartwell v. Chitters
v. Hartwell
Harty v. Shrader

i.

Edge

- v.

v.

v.

ii.

ii.

108

ii.

Hard ham v. Roberts

Harding v. Cox

Foreman

370

ii.

Chettle
Sinithson

v.

v.

v. iNaylor

81

Hanne
Hanson

Ruckle

ii.

ex parte

v.

Vol. P.ige.
v.

Harrison

ii.

Hatton

v.

Haughton

Haws

v.

Hatton
v.

Harrison

Haws

v Warner
Ilawes v. Wyatt

Ilawkes

ii.

v.

Saunders

442

i.

i.

500.

ii.
i.

31
264

ii.

RAMI

01

JiX

Vol

Hawkins, ex parte
Crook
v

-- V.

Leiffh

Middleditch

V.

i.

Obeen

- v.

-J8

i.

1.

v.

i.

ii.

Hay, exparte
Hoyden, exparte
Hayes v.Hayes
Hayford r. Benlpws
Haynes v. Mico

ii.
ii.

ii.

ii.

Egerton

v.

Head

i.

Bance
Heard v. Stamford
Hearle v. Greenbank
v.

i.

i.

Barber

v.

i.

255
ii. 342
424,481
viii.

i.

389

41, 47

ii.

Pereival

Fleet

107

i.

Paignon

i.

Robinson

v.

Hemming

v.

Henehman

v.

HnnkLey
Aver

Henderson, exparte

Hendy

v.

Heneage

v.

- v.

Huy
Meggs

ii.201

v.

v.

Heneage
Hnnloeke
Kvance

25
145
409
340
402
23

ii.
ii.
ii.
i.

ii.

Stephenson

v.

Henegal

577
i. 56

Tarrant

v.

i. 424.
487, 501
v. Dean and Chapter of
\\ estmiuster
i.. 299
Hereford, Bishop of, v. Adams

ii.

i.

i.54
il>.
ii.

310

58
328

ii.

Hercey

v.
v.

Birch

i.

Dinwoody

79, 60,

i.

206

Home

v.
v.

Heron

Mcers
Meyrick

i.9l

500

i.

Heron
Hertford, Marquis

i.240

v.

of,

v.

Bone
330
4G, 50
i.

Hervey v. Ilervey
Hesketh v. Lee
Hester v. Weston
Hewart v. Semple
Hewitt v. M'Cartney
v. Hewitt

Hibbert

201
541
15, 83
ii. 144

213, 214
Heatley v. Thomas
i.
377, 370
Hebbletwaite v. Cartwright i. 402
Hedges v. Caxdonel ii. 3S{), 4-10
Hell, in the matter of'ii. 500,508,

Helston

n.270
i. 279

ii.

ii. 70, 71
Perry
Heathcote, Sir John, v. Sir John

Hellier

Durand

ii.

v.

v.

v.

42

373. ii.332

Herbert's Case
exparte

v.Wright
Hewson v. Tooky
Hibbard v. Lambe

511, 512, 513

Heath

v.

ii.

Pref.

v.Ogilrie
Heath, exparte
v.

114

i.

250.
300.

ii.

Hearne

Hepburn

i.

Phillips

v.

ii-

v.

Heames

185
20

i.

Paget

Company

Henley

38

202

i.

v. Stillingfleet

Head

1S9
110

i.

Hoyterv.-Stapilton
Haywood v. Diinsdale
v.

558
502
422
224
518
403

ii.
ii.

Hand

v.

152

i.

Penfold
Taylor

v.

Haws

388
^;!), 304
334, 336
55, 57, 58
ii.

Royal Exchange Assu-

v.

ranee

201

ii.

Day
Holmes

v.

Vol

Henkle

:{50

ii.

i.

i.285
ii.

ii.
ii.

i.

407.ii.

Ill

n.

317

v.

i.

Mill

Higdenv. "Williamson
Higgins, exparte

ii.

ii.

v.

V.

Crawford
Dowler

ii.

i.

gg inson s case
Hia Jpn v. Sv'ddal
v. Crawford
1

ii.

Hilbert, exparte

306
245
307
519

i.422

Higham, exparte
Highway v. Banner

43

220
i. 58
i. 326
ii. 329
ii. 424
i. 429
ii. 489
477, 535
i.

Hickeu v. Hicken
Hiek v. Phillips
Hicks v. Con vers
Hide v. Hetwood
v.

134

u. 55.

Rollestone
Hibhlethwaite's Case

Hiern

234
272
213
134

ii.

i.

79

i.389
i.
ii.

53.

ii,

40

583, 586

Hildersley v. Deviscber
ii. 311
Hildyard v. Cres^y
ii. 279
Hill, exparte
ii. 500, 541
v. Adams
i.
408, 410.
ii. 151
337

f2

NAMES OF

lx

Vol. Pace.
11

V.

CASK?.

NAMES OF CASKS.
Vol. Pap
Hotlghton, expnrte
ii. 101
v. Geltey
ii. '-'AT
Houson \. Earl Wilmington
ii. 300
Hovendon v. Lord .Anneslcv 1.302
Hovey v. Blakeman
400.
i.

122, L23

ii.

Hon

\.

Chapman

v.

Wilden

Howard

i.

481.

i.

Brairhuaite

\.

'J4

ii.

v.

Hopkins

Howard
Jem molt

low den

Howe
I

[owse

J|o\

le

237

i.

51

ii.

53

337,

ii.

i.

College

v.Hughes

482

v.

Hulme Tenant
Humble v. Bill
.

Hume v.Edwards

i.

513, 514.

Humphreys

v.

i.

37

i.

228

509, 511,
ii. 94, 95

IJumphrej

v.

Bullen

i.

Hunsden

Hunt

v,

heney
Matthew
\

ii.
ii.

ii.

v.

Priest

v.

To

i.

4-21

19, 81

423, 124
i. 211
ii.

199

423

303
480
182
163

Price

i.

-'377

Skynner

i.

';<>:

i.

219

i.

Biscoe

v.

Hvln.n

\.

Morgan

v.

i.
102, 103
105. ii. :J0O

i.

Rhodes'

v.

i.

211, 339

May

i.

Vaughan

v.

v.

ii.

.Mitchell

ii.

Monice

v.

i.

Innes v.Jackson
v.

Johnson

v.

Mitchell

ii.

309

v.

Irish V.

Rooke

v.

ii.

lth.

Ives
i

Ivie

Ivy

\.
.i

ii.443

'

i.

v.

112.

ii.

56, 327,
i.

Harris

285
352
370

104
188
40;j, 40!, 485

i.

v.

i.

Medea lfe
v.

20!)

309
ii, 280
i. 60
u. 79
ii. 50

Humpage
Beane

i.

Gompertz

v.

11

143

14, 15
i.

Kittle

Irnhani v. Child
Irod v. Hurst
l^aae v. De 1'riez
v.

360
315
410
ii.

Twyne

Inwood
Inland

12, 13,
i.

Gilbert

Kckew

230,259
ii

i.

v.

Ingram

v.

.Ms
Morre
v. Tu\ It-ur
Humpheys v. Moore
v.

104',

exparte i. 204,
205, 268. ii. 41, :J47
Inchiquin, Lord, v. French i. 475
v. O'Brien
i. 480
I nekton v. Northcotei. 382,472,
506. ii. 70, 71

ii.

Humphry

ii.

llchester, Marl of,

95, 179
407, 508,

29

I.

Iuham

v.
Baselv i- 95, 208,
224,25:3. ii. 188,301, 75

ii.

ii.

Ibbotson
Iggulden

272,508.
17, 197
ii. 105, 107
427. ii. 395

Huguenin
\

Hyde

Inglet

i.

Kearney
Williams i.

Greenhill

14
14

Massareene
ii.
190

Lord

v.

ii.

ii.

Hammond

v.

Hvlton

of Morden
i.
130
ii.

v.

Hyde

i.
1:4
ii.4G4

l)oull>en

Trustees

v.

v.

Hudson's, Lady, Case

v. Hudson i. 471,514,518
Hugginsv. York Buildings Company
ii. 230,249,
120
Hughes, exparte
i. 91. ii. 527
v.

v.

2 13

ii.

Manning
Mannington

v.

Hutchin v.
Hutchinson

139

320
ii. 78

i.

lewson

Hutcheon

185

ii.

Husbands

v.

v.

339,440
i. 325

v.

v.

493

ii.

Hubbard, ex parte
Huddlestone v. Briscoe

uson

184 185

Noyles

Parrat

Chapman

Pollard

Petit

Howell

v.

v.

v.

ii.
ii,

Husband

Husbands
1

ii.

v.

v.

Duppa

\
\

i.

Rogers

v.

v.

Howell

i.

v.
v,
I

i.

(arris

M'Cray

v.

,36G

257
414
38, 323
i. 407

Castle
!

425
213

ii.

Hunter

Husband

i.

ich

i.

100

J.

Jackman

v.

Mitchell

i.

185, 1^'

226.

ii.

124

vames of

Jxii

Vol.

Jackson, exparte
v. Butler

ii.

i.

Cat or

v.

i.

Eyre
v. Ferrand
v. Jackson

ii.

evef
V Petrie
V Purnell
V Rawlins

Jacobs

Jacobson

v.

v.

Ogilby

295, 297

153

ii.

i.

ii.

v.

272
432
307
209

Peck

v.

Jolley

Stainbridjre

ii.

-- v.

Alephsin

i.

Bougett
Colbeck

ii.

478

v.

-- v.

ii.

v.

Collier

v.

Coxeter
Davis

v.

v.

v.

Jones

i.

3 10.

-- v.

Morgan

ii.

Jenour

Looks
Merlon

v.

Seilick

v.

i.

ii.

ii.

Jervis v.

ii.

i.

Jenour

Jern'mgharn v. Gla6S
Jerrard v. Saunders
Jervoise v.

Wi

Coll.

ii.

Duke
White

v.

n.
i.

2o

Jesson v. Jesson
Jessy p v. Duport
Jesus Coll. v Bloom

i.

208
200
ii. 33
ii. 204

v.

Suffolk

v.

Thomas

v.

Tuberville

71. 123.

v.

Williams

ii.

.'con v. Ru Rh
ii. 113
Jewson v. Moulson i. 380, 387
Johnson, exparte ii. 520,521,541,

559

Jordan

i.

ii. 191
330, 331
i.

ii.

v.

ii.

v.

Joseph

3-30,

v.

Mott

482.

337,

340
56
ii. 235
ii. 59
28, 413
ii. 283
i. 4C8
ii.

Saw kins

Cox
v. Doubleday

i.

437
184

225,280
ii. 25, 29
ii. 250

Jortin, exparte

Jury

219

244
308
01, 440
ii. 209
ii. 237

i.

ii.

ii.

i.

ii.

Earl of Strafford

187

i.

ISO.

51
119

i.

v. Roe
v.Sampson

- v

ii.

i.

Marsh

v.

408

i.

-v. Pawlett
- v. Pengree
-v. Pugh
- v. Price

Duke

v.

v.

170, 409.

Bruton

v.

290
210
439
180

.-

137,250,200

i.

344

142,143,
289, 405

ii.

Juke?

103
in 22

i.

v.

S80, 381.

Langhtori
Lewis

- v.

Martin
Mitchell

v.

48,

ii.

- v.

Jennings

451

49
415
ii. 200
430. d.496
i.

273. ii.75,/7
Jeffs v. Wood
ii. 36, f>04
Jenkins v. Hvlesi. 344, 345,349.
Jeffreys

184

ii.

ii.

Harris

- v.

ii.

i.444
ii.

v. Cibbons

v.

426
473,477
ii. 175
ii.

v.

471

i.

East
Jones, exparte
_J

90

ii,

Cower

v.

96

193, 196
i.201

ii.

Jolliffe v.

402
v. Keymier
ii. 512
v. Oades
i.
415
Janson, Sir Thos. ?. Kaney ii. 338
Jason's, Sir Robert
i. 100
v.Jervia
i. 219
Jebb v. Abbott
i. 490
Jewries v. Harrison
ii. 423
v. Renons
i. 398
Jeffreys

ii.

i.238
ii. 408
i. 323
i. 325
399,400

ii.

492
229

ii.

i.180

Twist

Jolland, ats.

385.

i.

Jaroinbv. Harwood
James, exparte
v. Dore

v.

33

i.

Williams

la Craze
Johnson

v.

ii.

ii.

i.

291
184

i.

i.

Ooodman

De

v.

v.

Shepherd

Amyatt

v.

417
82

ii.

85,110

ii.

v.

Cnrtis

Medlicott
Northey
Nott

Saunders

v.

v.

273, 48a.

Hall
v.

Browne

v.

v.

Jacob

429

v.

21

ii.

-- v,

Johnson

187
211

ii.
i.

Vol. Vipe.

P.-12-r'.

472, 509

v.

case?.

i.

NAMES OF CASES.

Ixiii
Vo'. r.

Vol. Pa',".

Campbell \\. 122, 123, 233

i. 321
Joynes v. Statham
n. 43
Judd v. Pratt
Jos y,

K.
Kaiu v. Hamilton
Hampshire \ Young

ii.

34
234
522

i.

&74

i.
i.

Kaye

v.

Boulti n

Kebble, ex parte
Keeble v. Thompson
Keeling v. Browne
Keenv. Stuckley
Keighley v. Browne

Mackrell
Squire

v.

Kempe v. Antill
v. Kempe
.

Prior

v.

i.

203.

Kendarv. Milward
Kenebel

\.

Kennedy

Scrafton

v.

Daly

">

i.

Kentish v. Kentish
Kenyona v. Worthington
Kerrick v. Barnsby
Kerry, ex parte

Townsend
v. Atwood
Key v. Brads haw
Kidney v. Coussmaker

Eustace
Countess

4S4

i.

ii.377
i.
ii.

Kettle v.
Kettleby

220, 221, 473, 481,

Kightley v. Kightley
Kildare, Earl of, "v.

Killiwrew v. Killigrew
Kilmurry's, Lady, case

206
478

55

i.

>i
i.

v.

Smith

v.

Wightman

236

v.

v,

27

ii.

82

10,

278

11,04

Webb

ii.

98

Ravensworth Hospital
ii. 129, 550, 551
ii. 127
Kirkham v. Chadwick
i. 302

v. Smith
i. 371
v. Kirkinan
ii. 109
v. Milles
ii. 395
Kirkpatrickv. Love

Kirkby

v.

Kitehin

v.

Kittear v.

406
509
ii. 53
ii. 29

Bartsh

Raynes

ii.
'

ii.

Knapp v. Williams
Knight \. Cameron

Maclein

ii.

ii.

ii.

Knight

1.433
ii. 24l

242
329
170

ii.

Kircudbright, Lord, v. Lady Kiri. 513

cudbright
ii- 409
Kirk, ex parte
ii. 141
v. Clarke
ii. 315
v. Kirk

v.

163

101

ii.

i.

v.

Hobson

292

ii.

John

v.

22

ii.

ii.

Barker

i.55,500
Sir

409
309

i.

Duplessia

57, 50,
42, 111

418

100, 169
i.

v.

i.

ii.

ii.

of,

'

401

ii.

308

i.
i.

Kinworthy v. Allen
Kir by v. Potter

Stainsby

Bridgman
Kent

Manissal
Martin

v.

532

'

v.

v.

ii.

125

84,88,111
i.

Kinsman

424

i.

ii.

4li>

103,104

ii.

Dennison

Hake

i.

ii. 88
ii. 110
Kennel v. Abbot
ii. 542
Rennet, ex parte
ii. 211
Kenrick v. Clayton
ii. 403
Kensington* ex parte
L207,27l
Kent, exparte

v.

v*.

v.

358

ii.

86
245

i.

ii.

ii.

180

i.

v. Withers
Kingeotev. Bainsley
Kingdon v. bridges
Kinnersley v. Simpson
Kinsey v. Kinsey
v. Yardley

Westbrooke

Kendall, exparte

1,

i.203
24S, 249, 250,
251
180
i.

Squire

v.
v.

i.

ii.

Miller

v.

20
ii. 529
ii. 256
i. 517
305, 400
ii. 357

Kelyway v. Kelyway
v.

21

v.

i. 258
Lord Huusdon
i. 57, 183, 425
v. King
ii. 372
r.Wightman

i.329
ii.

Clarke

i121
King, exparte i. 11. ii. 471, 478.
485, 510, 523, 53H, 563
i. 308
v. Brewer
ii. 447, 449
v. Cnvi-w
i. 379
v. Del aval

lis
1.483,500

ii.

v.

Kinchant v. Kinchant
Kinder v, Jones

ii.

Keiley v. Monk
Keith, exparte
Kellsall v. Ben net

Kemp

Kingston

v.Jfoseley

i.

117, 184,
ii. 191
ii.
i.

i.

153
490

120. 121
ii.

10

n.
Knollys v. .Alcott
Knott, exparte i. 422, 424. ii.

198
143
259

v.

Lord Plymouth

lxi V

iMES OF

CASK.-.
Vol. Page.

Vo!. Page.

Knowell, exparte

ii.

Kuoulesv. Broom

ii.

v. Haughton
Knox v.Browne

v. Si

170
75

207
204
548

ii.

mm on ds

Kock, ex [jaite
Koningsby, Lord,

51(>

ii.

ii.

Jekyll

v. Sir J.

100
17

ii.

Koops, ex parte

i.

Langley

Browne
Lord Oxford

v.

- v.

Lacon

v.

Lansdowne

Hogg

Lasliley v.
v.

SO

Lathrop
Latoueh

Mertinsi. 291. 301, 303,

Laundy

v.

Briggs

v.
v.

i.

504
92

30-1,

Lace}

ex parte

Moore

v.

Lacon

i.

ii.

v. Mertms
Lake ats-

v.

i.

Causefield

Craddoek
v. De Lambert
v. Decon
v.. Gibson
v. Lake

Lamb

Thomas
Milnes

v.

Lambert

Lam lee

v.

i.

200
ii. 312
ii. 102
ii. 133
ii. 180
ii. 102
ii. 02
i. 417
377, 385

Lambert

Hannam

v.

24 (i
198

ii.

v.

v.

24'>,

ii.
i.

11

231,2 34
i. 433

Lampet's case
Lampltighv. Lamplughii. 99,100
i. 89
v. Smith

457
ii. 78
ii. 383
ii. 473

Lanchester, exparte
1

and

v.

ii.

Devaynes

down

Elderton
Lane, exparte

u.

v.

Langdale
Langford

v.

v,

Langdale
Gascoyne

119,

122
v.

Pitt

i.

291, 349

tiny
.

v.

Sandm.^

Lan^taffv. Fenwick
v. Taylor

i.

ii.

i.

87,

384
81),

92
00, 427
ii. 432

421

i.

180, 227

204, 208,214

241,410

Lawson

v.

Barker

v.

Lawson

v.

Stitch

Lay ton, exparte

Leach v. Deane
Leacroft

v.

ii.

152
89
ii.7, 75
4G7, 409, 470
ii.

ii.

4, 88,

Lead better, ats,

Leake v. Morris

320

i.

Maynard

i.487
ii.
i.

Leaverland, exparte

ii.

Lechmere

i.

v.
v.

Lechmere

Lord Carlisle

i.

Lewis
Le Cornpte, exparte
Ledwich, exparte

ii.

Legard

ii.

V.

v.

Sheffield

v.

Alston

v.

Brown
Cox

v.
v.

280
304
544

289,
290, 312, 327
i
397
Charlton

v.

2<;8

ii.

i.

Lawlor, Lessee of, v. Murray i. 15

i- 400
Lawrence v. Blatchford
335
i.
v. Butler

ii.

ii.

Lane's Case

i.

Hooper

v.

ii.

i.

ii.

Law

ii.

v.

18, 19

Lee, exparte

ii.

Iloblis

Newdigate
Wiiliams

i.

125

Dighton

v.

495
133

i.

Williams

374
130
179
444

v.

v.

v.

Lawley

501

ii.

351

Marsh
Lord Dunsany

v.

Amicable Society of

Lancaster,

(il

i.

ii.

ii.472, 520
Lavender, exparte
Law v. East India Company i. 191

i.282

Briggs

v.

01,

4:J0

i. 428
Laugston, exparte
L
v. Bovlston i. 142, 143,
Lanoy v. Duke of Atholl i. 203,
275. 477
ii. 270
Lansdowne v. Elderton

Lassels v. Cornwallis
L.

42

i.

SirRobt. Henley
Lee

Muggridge
Pascoe
Prieaux

Wallwyu
Warner
Willock
Leech v. Leech

i.

ii.

ii.

313
320
509
382
275
479
i.70

ii.
i.

i.

128
313

23,41
i.

ii.
i.

392
377
270
370

i.412

402
340
ii. 70

ii.

ii.

MES OF

\.\

Pa ? e.

Vol

Duke

Leeds,

of,

Radnor

l.onl

i.

25.

lxv

f'ASKS.

351

ii.

V..1

.Ancy

Lillia v.

i.

377.

v.

Lord

Countess

of, v.

Lincoln, Lady,

ii

Lurl ofStraf-

26
ii. 504
ii. 507
ii. 475
ii. -LA
i. 323
291,312,315
i. 309

ford
Leers, exparte

Lees, exparte

L'Fit

L'Batt

v.

Legal

Miller

v.

Legard

v,

Legate

\.

Hodges

l.i

Joliusou

v.

Legg

Sew ell

Goldwiae
icester, exparte
v.

ii.

Ixo^e

v.

Barry
LutkiQs

v.

Thomas

52
455, 470
.. 22G
i. 251

i.

it

123

ii.

i. -){;-)

w.

Leighton's, Co!. Case

145
i. 17

Leightoni. 72,141,142
ii. 535
Leman, exparte
v.

Newnham

v.

Lempster, Lord,

ii.

156,163

Lord Porafret

v.

168, 189
312. ii. 98,
i.

Lcnch

I.erich v.

i.

L25

LeNeve

\.

Leonard

v.

LeNevei. 2C0.
Ansel!
Leonard

Lr\

itt v.

Le^in

v.

Need ham
Lew in l.

New castle
Eboral
Lindopp
Liugard v. Bromley
\.
Lord Darby
\

v.

v.

Freke

v.

Morgan

v.

Nangle
Pead

v.

wkner

i.

v.
\

Linguet
Lindsey

v.

(i(i.

-r.A

ii.

252

i.415

Lister

ii.528

Lister

v.

91, 1)3

i.

Litchfield, Earl of, in re.

Lit! le,

Buckley
Li ttle hales v. Gascoyue
Livesey v. Wilson
v.

Lloyd, exparte

Baldwin
Cardy

v.

v
v.

i.

ii.

Collett

i.

v.

v.

Jones
Loaring i. 191
Maejcworth

v.

Makearn

ii

Duke

i.

Hereford

i.

i.

339

140, 407,
408,

ii.

i.

el!

145
191

ii.

317

i.

Passinguain

353

i.

ii.

-237

188,

u.

4<iS

Read

ui.

Tench

174

Williams

l!
i.

98,108
i.

i.

407

517. 510
488, 500.
n.

Lobb, exparte
Lock v. Bromley
v. Lock
Lockey
Lockey
Loci- yer v. Savage
'^

20

355.

i.

ii.

225
542

380,387,390.

'1A

99, 100,

Spillett

Stoddart

493

400

Scott

'.50

of Montrose

ii.
ii.

'

Posvis

432,433
ii. 518

n.

18-3

329, 348

Griffith

ii.

92

116
290
i. 4
5, 508
352,353,490

Joluies

V.

15

ii.

i..

v.

V.

..

ii.

v.

v.

533

ii.

expaite

Littlelmry

192

ii.

ISO

...

v.

523

i.

Linthwaite, exparte

543
302. ii. 226
i. 405
i. 90

Piercy

v.

382

338

i.

v.

idderdalc

ii.

ii.521,

Croucher
Eade
Sea wen

ats.

ii.'.'

472.

i.

Freeman
Lickbarrow v. Mason
I

i.

485
290,291

i.

Lin good, exparte

ii.

row

v.

v.

57
192
L 481,
i.

Rattray

Chase

Hi
of

"4s_>.

Sowray
Lingham v. Sturdy

Lin gen

Lewis, exparte
v.

! 15

i.

ii.

i.

70.

Duke

ii.

ii238, 252,
265, "207, 269

v. Earl of Sussex i. 450.

ii. 110
I.e Texier v. Margravine of Lnii. 147
spach
?.
ii. 33
ter v. Gai land

v.

i.

Leife v. Saltinystone
v.

30:2

i.

v.

Leigh

ii.

i.

Leek, exparte

Pelham

i.

65

ii.

439

i.

195

74,303
n. 50(i

SAMES OF CASES,

IXYI

Vol. Page.

Lodge and Fendall, Assignees

exparte

Lomax

4<>7

ii.

Lokerv. Roke

i.

London Assurance Company

East India Company
v.

Mayor of,

-,City

Fyt<

Bolt

v.

Levy

-, v.

173

lii.

i.

ii. 301
103,173

Mitford i. 336
v . Nash i. 320,

of, v.
,

324
Richmond
i.
336

v.

ii. 217
Lonergan v. Rokeby
Longv. Burton
ii.
294, 316,
327
v. Lamina
i. 435
ii.
70
v. Long

v.

Short

v.

Steward

Longman
Lonsdale

v.
v.

Littledale

v.

Lord, exparte
Lothian, Marquis

of, v.

v.
v.

Morgan

v.

Lowe

v.

v.

Lo.wndes

Lowndes

Copeland
Lowther v. Andover
v.

V.

ii.

555
175

Garforth
ii. 270
i.

370

i.

153

477
186,213
i. 334
i.

v.
v.
v.
v.

v.

v.
v.

Evans
Lucas

v.

Temple

ii.

123

n.

349

i. 171
104,27;,
Car rill
i.336
ii. 22
Condon
ii. 170
Hamper
Lowther
i. 91,
i. 142
Ray
-

ii.

421

31)4

ii.

430

ii.

320,

i.

430
231
ii. 272
ii. 300
ii. 555
ii. 590
265 ii. 582
ii.

Wilson
Ludlam's Case
Ludlow, exparte
i.
Luke, Parish of, v. Parish of St.
i. L39
Leonard, Shoreditch
Lund, exparte ii. 451, 477, 571
Lupton v. White i. 83. ii. 333,

Lurgan v. Bowen
Lush v. Wilkinson

ii.

300
376

220, 221

506
204
i. 514
Lutwyche v. Lutwyche
v. Win ford
i. 353
Luxton v. Stephens
ii. 426
Lyclclel v. Weston
i. 347
Lydiat v. Sir John Foach
ii. 02
i. 25
Lyifard v. Coward
i. 85
Lyggon v. Strutt
ii. 582
Lyne, exparte
Lynn v. Willis
ii. 353
Lyon v. Chandos
i. 398, 402
v. Dmnbell
ii. 295
ii. 425
Lyre v. Parnell
Lutkins

Leigh
Lutterell v. Reynell

Lyster

v.

Dolland

v.

i.

500,'

ii.

i.76, 418,

497
Lyttleton, exparte

Lytton

v.

ii.

Lytton

ii.

591

410

M.
Maberly

Carlton

v, Spillett

Commerford

491
ii. 71

i.

Lowthian against Hassel

Lloyd v. Mar

v.

Mabank

ii.

Cal croft

12')

i.

v. Collins
v.

Lowson

234.

ii.

Milford
Lancaster
Barchard
Leesh

Lovel

120

ii

i.

Love v.
Lovedon

96

8,

ii.

ii
270
Ca Hi ford
Church ii. 113, 117,
118

Lord,

-,

v.

v.

Webbi. 120

,v.

Lucas

v.

4-3

ii.

of, v.

v.

ii.273

Hankey

London, Bishop

Vol. P.iS".

Geriam

Lubiere

227
274

ii.

Lomax

v.

of,

v.
v.

Metcalfe

ii.

Turton

Macclesfield, Earl of,

i.

v.

Blake
ii.

Fitton
Maccormic v. Boiler
v.

342
272

i.
i.

383
436
380
348

i.
Macdonald v. Hanson
ii, 591
Macdougal, exparte
v v. Shurmer
57, 58
Macher v. Foundling Hospital
i. 34
ii. 574
Machin v. Salkeld
i. 27
Mackenzie v. Mackenzie
i. 419
v. Robinson
ii. 472
Mackerness, ex parte
i

NAMES OF

CASKS.

lxvil
Vol. Pa?e.

Vol. Paje.
ii. 50
Mackintosh v. Townsend
Macklin against Richardson

v.

12G
229
418
180

12"),

i.

Macleod

Drummond

i.

ii.

Mackreth

i.

Swumon6

v.

^Iurlar

v.

100,

ii.

Markham

ii. 170
ii
Markland, exparte
504
Marlborough, Duke of, v. Lord
Godolphin i. 439, 44:). ii. 19
v. Duch<
ii. 223
Marlborough
Duchess of, v. Sir
,

Thomas Wheat

100

Macnamara
Macqueen

Jones

i.

Forquhar

i.

v.

v.

57, 187,
ii. 131
240, 342

428

ii.

Macauley

v. Philips

Maekworth's,
Case

Sir

i.

380, 388,
389, 390

Macreth

v.

ii.

v.

Clifton

ii.

Thomas
Symonds

v.

Andrews

222
240
400

i.

409,

i.

ii.

257,418
504,530

i.

249,250.

ii.

Macwilliams, exparte

Maddison

5t85

i.

Brings

v.

v.

Jackson

v.

Maddox

ii.
ii.

153

257, 311,

340
Magrath v. Lord Muskerry i. 34
Maguire v. Allen
"ii. 188
Maine v. Melbourne
i. 304
Mai re, ex parte
ii. 559
Maitland v. Wilson
ii. 237
Makeham v. Hooper
i. 502
Malcolm v. Martin ii. 66,69, 70
Maliu v. Keighley
Mallabar v. Mallabar
Mallach v. Galton
Qfamel v. Bowles

ii.

i.50
ii. 353

417
332
i. 197,198
Manaton v. Squire
Maugham v. Masson i. 470,483
ii. 290
Mansrlemaa v. Prosser
Manlove v. Bale and Brnton
i. 427
Maiming v. Herbert
ii. 23
v. Lechmere
11. (M2
v. Snootier
i. 474
exparte
ii. 380
Mum ell v. Mensell i. 393, 394
March v. Head
i. 388
M.i re, e\| .arte
ii. 500
Margerum v. Sandiford
i. 4*9
Margrave v. Lady Hooke i, 425

JMjiii v.

Ward

Marriott

v.

Marryat
Mursden

v.

ii.

ii.

v.

Panshal

v.

.Marsh

!..)

Evans

v.

387

ii.

341,345, 364
Hampton
I. 04
Towuley
i. 459
Bound
ii. 203
i.

92

ii.

exparte

Howe

-- v.

v.

Martin

421

i.

Marsh field v. Weston

Marston v. Gowan
Martin, ex parte
v. Kerridge

312

ii.

Lee
Marshall v. Frank
v

ii.

255

ii.

ii.

i.

i.

Mason

i.

Armitage

4G9, 470,
ii.

Marton, ex parte
Mascall v. Mascall
Maskeen v. Cote
v.

55
465, 475
ii. 362
i.

1:3

ii.

Madox

Marlow v.Smith

Humphrey's,

v.

Wilkinson

v.

mi

583
37, 89

ii.

ii.

214, 21
296, 2:51

ii. 329
Gardiner
ii.288
Massareene v. London
ii.
117
Massey v. Davis
i. 378
Master v. Fuller
v. Kirton
i. 78
Masters v. Bl'liet
ii. 242
i. 480, t
v. Masters

v.

ii.

73,94

Matthews, ex parte
ii. 517
v. Bishop of Bath and
Bristol Well*
i. 260
i. 423
v. Curtwright
v. Matthews ii. 37, 38,
v.

Stockdale

v.

Stubbs

v.

Wallwyn
Warner

i.

ii.
i.

S2,

39
120

383
43G

ii. 451
V.
Maundrell v.Maundrell i.498,410

Maw

v.

Harding

Mawer v. Mawer
Mawson, exparte
Mawsou v. Stack
Maxwell

v.

Phillips

i.

ii.
ii.
i.
ii.

519
109
543
226
171

NAMES OF CASE.v

txviii

Vol. Pag;*;

Vol. Pasrc.

Maxwell

Wettenall

r.

ii.

May

v.

Lewen

v.

Wood

Maybank
Maylin

v.

488
G5, 07
ii. 89
i.

473
'294

Mill v. Mill

ii.

Hoper
Hochin

i.

Mayne v.
Mead v. Lord Orrery

ii.
i.

18
19

228, 42G

193
i. 21
v. Webb
Meudovvs v. Duchess of Kingston
ii.

248
220

ii.

Meaghan, ex parte
Meal v. Meal

i.

ION
43, 252,
i.

Meastair v. Gillespie

i.

Medlicott's Case

ii.

O'Donncl

v.

253
479
205,

i.

...

i. 363
v. Martin
Meers, Sir Thomas, v. Lord Stuurii. 261
ton
i. 322
Meeres v. Ainsell

Medly

Meliorucchy

v.

Meliorucchy

217

ii.

Mellish

v.

Da

v.

Mellish

Costa
i.

i.

GG,

v. Williams
Mellor v Lees

Mendes

260, 267

272,443
ii. 410
i. 415

Mendes

v.

i.265

v. Payne
Mentney v. Petty
Menzeyv. Walker
Mercer v. Hall

Mentii

Meredith

v.

Merevvether

331

ii.

220,

Mertins v. Joliffe
Metcalfe v. Beckwith

v.

Ives

ii.
i.

257
202

i.
114, 145,
14o, 148, 170
i.

65,

405

Pulvertoft i.21G ii.188

ii. 363, 524
Meymot, exparte
ii. 505
Michell, exparte
Micklethwaite v.Calverly ii. 236
v.

Middlecorribe

Middleton

v.

v.

v.
.

v.

Marlow

Cator
Clitherow
Dodswell
Messenger

v.

v.

Suiter

i.

ii.

220
55

ii.

5(5

188
ii. 17
ii. 5

u.

i.

19
281

i.

342

ii.

i.384
ii.5-18

555
404
- v.
ii. 305
ii. 280
Milner v. Golding
v. Lord liarewood ii. 320
i. 00
v. Milner
i. 377
Milnes v. Busk
i. 337,338
v. Gery
v. Slater i. 444, 474, 475
Mills, ats.

v.

ii.

Banks
Handson

Milsington,Lord,

i.

v.

Earl of Port-

Earl Thauet
Minor, ex parte

ii.

156
330
380

Lord Mohun

ii.

401

more
Milward

v.

Minshull

v.

ii.
i.

ii. 537, 538

Mitchell, ex parte
Justice Case i.278
's, 31
.

Dors
Draper

239,406,434

Harvey

Warren

v.

i.

45

4G0, 523

ii.

250
26, 30

Mellish

v.

fteare

v.

133

ii.

Millet v. Rouse
Milligan v. Cnoke
Millner v. Colrner
31 ills, exparte

47,

392

ii.

Bower

ii.

i.

1G7
320, 321

ii.

v.

i.

i.

70
583
611

ii.

Millard v. Eyre
Miller v. Miller
v.

226

i.

ii.

'

517, 519

Wynn
v.

313

ii.
i.

i.

Mildmay, ex parte
v. Hungerford
v. Mildmay
Miles v. Lingham

ii.

ISiooks

v.

Middleton v. Lord Onslow

Mi bourne v. Fisher

v.

Harris
Mitford, exparte
v.

v.

Mitford

ii.
i.

ii.

165
252

ii.

505

ii.
i.

237.
i.

70

121

372, 382,

383,385,387. ii. 487,489

L334
Mithwold v. Walbank
ii. 295
M'Mahon v. Sisson
i. 2-18
Moccato v. Lonsada
i. 256
v. Murgatroyd
423
ii
ii. 280
Moeber v. llec(\
ii. 145
Moffat v. Farquharson
i. 502, 505
Mogg v. Hodges
i. 120
v. Mogg
Moggridge v. Thackwell ii. 20>
57, G3, 73, 42o
ii. 71
Mole v. .Mole
Molesworth v. Molesvorth ii^ 13,
14

NAMES OF CASES.

lxhc

Vol. Pn-p.
v.

Luard

v.

Powell

Melineux
Molloy

Mondrey
Monuins

v.

v.

Mondrey
Monnins

Montford, Lord,

Monkhouse
Bedford

'

v.
ii,

\.

v.

Moor

!27

v.

Dillingham

79,80

v.

13,

ii.

12, 13,

ii.

v.

Steele

Walters

v.
v.

v.

Stephenson

v.

v.

ii.

151

v.

186

Mossop

v.

v.

Moore
45,

64,406,410
i.

200.

25?
192
ii. S7
i. 107

ii.

Mordaunt

v.

Hooper

v.

Hnssey
Thorold

v.

Sir

Richard,

ii.

Earl of

Scarborough
Mores v. Huish
Moreton v. Tmville
Morgan, exparte
v.

Scudamore
ii.

-- v.

v.

v.

i.

392

i.

-178

ii.

291

i.

4-0

i.

135.

388, 399, 400

Hani

ii.

Mather
Slaughter

ii.
i.

Morison v. Tumour
Morley, exparte

i.

ii.

228
506
340
299
57

Morouey v. O'Dea i. 420. ii. 423

Morrei v. Paslce
i. 422, 423
Morrice v. Bank of England
i.

v.

Burrough

Hankey

Morris, exparte

50">.

ii.
i.

355
326

ii.

181

ii.

54S

12

312
336

ii.

94.
i.

ii.

03, '215,

Davis

ii.

101

Orchard
ii. 339
Mortlockev. Buller i. 188,204.
321, 328, 342, 349
Morton, ex parte
ii. 510
Mosely v. Virgin
1.320

ii.

2~8, 392.

l<>8

i.

v.

Macoamara

ii.

i.228

324
v.

Meynell

Dickens

310,311
i.

Roach
v. Royal
i.
Mortimer v. Capper

v.

v.

i.

Cullo( k

Beck with
Faulkener

v.

i.

ii.

ii. 490
107,198
409,411

ii.

v.

395, 396

elsh

Morecock

More,

Morse

ii.

Elme
LeNeve
c

ii. 57, SO
390. 405,
31, 40,46

i.

'in.')

ii.
i.

Copper Company
ii. 250
Moore v.Aylet
ii. 331
v. Bennet
ii. '2.">7
v. Foley
i.
309

513.

Corporation
of
876, 877,437

Holmes

129

Durham

Burroughs

;>75,

v.

v. -V\

v.

[;.
i.

231
Lord Cado-

14
Montacute v. Maxwell i. 297,8
Monteith v. Taylor
ii. 290
Montgomerie v. the Marquis of
i. 4-20
Bath

Moody

ley

ii.

Monk

Lord

'/I

Lessees of Lord

v.

Bishop of

ii.

v.

I!.

Vol. P.u'c.

Morris

v.

Sfi

Monk

i.

122
241

I.

Irvin

v.

285

ii.

Ward

ii.

Eadoa
Atwood

116

22
i.213
v. I'rouie
ii. 489, 492
Motteux v. Mackreth
ii. 317
Moule, exparte
ii. 4( S, 473
Mounstuart v. Mounstuart i.264
Mountague, Lord, v. Dudman

Moth

v.

v.

i.

i. 161
Lord Sandwich
i.
221

Monntford, exparte

i.

44, 207,

272.
v.

Tavlor

ii.
i.

188
108
102
333

Moj st- v. (Jiles

ii.
Moyses v. Little
i.
Mucklestone v. Browne i. 175.
240. ii. 89, 137,139,227
Mulvauy v. Dillon
ii. ol7, 342
Mumma v. Mumma
ii. 99
Munday against Earl Ilow i. 272

Munday

i.

Murat v. Gorden
Murphy, exparte i. 220.
Murray v. Lord Ellibank

i.

ii.

l!>7

437
502

i. 3S8,
389, 390

v.Shadwell
Muscottv. Halhead
Musgrovev. Dashwood

214
222
i. 292

ii.
ii,

ixx

STAMES

01'

CASES.
Vol. Pa^e.

Vol. Page.

.Mussel

Morgan

v.

i.237

Newton
Niceol

100
i. 51

v.

Nan nock
Nantes
Napier

v.

ii.

Hoi ton

i.

Chalie

354
T-'aylor v. Taylor
ii. 295, 296
Neale, exparte
ii. 582
v. Nonis
ii. 200
v. Wadeson
ii. 222
Neave v. Nottingham
ii. 487
Need ham v. .Smith ii. 323, 440
Needier v. Deeble
i. 428
Neil so n v. Cord ell
ii. 294
Nelson v. Old held
i. 207
Nelthorpe v. Pennyman ii. 384
Nerott v. Wallace
H.522
Nesbit v. Tredennick
ii, 120
Nevarre v. Rutton
i. 75
Neve v. Weston
ii. 250
Neville v. Saunders
i. 357
v. Wilkinson
i. 209, 233
Newburgh v. Uickerstafi
i. 74
-, Earl of, v. Wrei. 100.
ii. 250
Newcastle., Duchess of, exparte
ii. 563
N< wcom.be v. Ronham
i. 415
Newhouse v. MilbanE
i. 12
rv. M it ford
ii. 374
Newland v. Champion
i. 229.
ii.

153
ii. 90

Newman

06.

r
'

v.

Kearsley

v.

v.

Osborn
Judson

v.

Leeson

i.

v.

Maynard

i.

i.409
ii. 174
ii. 71
ii.

~ .
,

393
Browne

v.

-,

ii.113

:<7S

Northltiirh v.

v.
v.

Payne
Rogers

v.

Wallis

New

River

483
45
94, 90
ii.

Company

v.

i.330
i. 104
Graves
i.

Newsham

v.

Newstead

v.

Gray

i.

Johnston

113.
ii.

ii.

138

418

85,80,88,

89,90

v.

Searles

Newton, exparte
v. Bennett

Champernon

ii.

i.

i.

ii.
i.

494.

ii.

'222

534
120

ii.

Way

v.

v.

i.

Luscombe

Frecker
v. Mascall
v. Norton
Turville

i.

87

25
361

i.

i.

v.

v.

ii.

Duke

Northlike, exparte
Nortlieyv. Strange
Northumberland, Earl of,
of Aylesford

Norton

361

i.

Lord, v. Purdon
v. Far! of Strafford

Hodgson

v.

287
434
177,211
i. 26
i. 429
ii. 275
i. 216
ii.

v. Wilkinson
Noseworthy v. Bassett
North v. Ansel!

Duke
i.

Kennedy
Neve

v.
v.

v.

Newman

of, v.

of Devonshire
Norris v. Bacon

Northcote

Johnson

Normanby, Marquiss

207

v.

38
63
28

Nicholson v. Pattison
i. 24
Nightingale v. Dodd
ii. 310

i. 196
v. Law son
Nisbet v. Murray
ii. 89,91,183
i. 191
v. Smith
Nobkissen v. Hastings ii. 220,236
ii. 532
Nockhold, exparte
Noel v. Iveson
i. 303
i. 230. ii. 96
v. Robinson
Norcott v. Norcott
ii. 438
Norfolk's, Duke of, Case i. 360,

i..'!8l

v.

215

Howe

ii.

"

i.

Gould

v.

v.
*~"

391
555

v.

Barton
Cartooy
Godfrey

v.

ii.

ii.
i.

ii.

39
270

i.

ii.

v.

"

Lady Efhngham

v.

v.

---

480
377

i.

Coi'roek

v.

v,

Nicholls, exparte

N.

Prowse
Nandick v, Wilkes
Nairn

Rowse
Wiseman

v.

ii.

ii.

37
206
582

ii.

v.

21

Earl

ii.

31

i74
i. 338, 440
i.513
378. ii. 208

Nott v. Hill
i. 89, 98, 100
Nourse v. Finch
ii. 88, 90
ii. 377
Novosielski v. Wakefield
Now Ian, exparte
ii. 523, 524

JL-VMF.S
\

Noysoialioad Ship, Case

13,

14

Nugent
Nurse

v. (I y fiord

i.

Groom

v.

Nutbrowne

v.

Denne

v.

Duke

0.

Chapman

Li.

O'Brien

v.

417, 430
i. 119

.O'Connor
O'Calagl an

410
ii. 30

it.

looper

Ockenden, exparte
O'Connor v. Cooke

v.

ii.-">ll

304
i. 69
ii. 434
i. 208

ii.

Spaight

O'Dea

<)'[), a v.

Odell, exparte
Ogilvie v. Hearne

ii.

Ogle, exparte
's Case

572
530
i. 15
ii. 98
i. 300, 333
ii. 19, 20
i. 404
ii. 134
i. 207, 209
i. 321
ii. 204
ii.

O'llara v. O'Neal
O'Herlily v. Hedges

Oke v. Heath
Okeden v. Okeden
O'Keefev. Calthorpe
v. Casay
Oldfield

v.

Round

Oldham

v.

Carleton

v.

Casey

v.

Hands

2<>9

i.

95
317

i.

v.Hughs
v. Oldham

218, 351,
409, 444
ii.

Ogverv. Haywood

i.

ii.

183, 184

Oliphant

ii.

Oliver

ii

v. Hendrie
Frew en
v. Hamilton
Omerod v. Hard-man
v.

ii.

O'Neal
Onions

v.

Mead

v.

Tyrer

50
00

i.

50G

i.

Ihitcliinson
ii.

Or me v. Smith
Onnsby, in re.

ii.

ii.

29
410,428

of Leeds

73,

ii.

71

Tenant
v. Usher
Osbrey v. Bury
Osgoodev. Strode

Osman

v.

Osmell

v.

i.

183

ii.

h.

430, 138

393
371

i.

327.

i.

Fitzroy

ii.

i.

310
38i

i.

2 2l

ii.

Probert

Osmond v. Fitzroy
Osmyn v. Duke

of

Cleveland

233
21G
i. 200, 302
Oughterlony v. Lord Powisii. 245
i. 310
Out read v. Round
Owen v. Curzon
ii. 399

i. 294
v. Davis
v, Foulkes
ii. 384
i.

Manning
Otway v. Hudson

Otley

v.

v. Griffith

v.

Jones

v.

Owen

i.

i.

72.

v.

ii.

4:59

ii.

335
84
120

ii.

Williams
Oxburgh v. Fine-ham
Oxenden, exparte
v.

ii.

403

ii.

ii.512

Lord Compton
ii.

505,500 ,585,5SG

Oxenden
i. 391
Oxford and Cambridge Universities v. Richardson
i. 17,113
Lord, v. Ladv Rodney
i. 478
v.

Oxley

v.

Pack

v.

Lee

185

i.

P.

Bathurst

G{)

v.

Cooke

v.

Lever
Neal

v.

v.

bury
Paine v. Miller
- v.

91.

-'s

332,330
ii. 75

Palk

131, 197

Palmer

v.

i.

ii.
i.

519

ii.

251

ii.

232

ii. 82,83
Page
Archbishop of Cunter-

v.

Paice

495
371
523

i.

Packer v. Wyndham
Page, exparte

i.

v.

9G

ii.

v.

189

ii.

345, 347
103, 430, 437
i.

Only v. Walker
ii. 339
Onslow v
j.38
Ord v. Wilkinson i. 105. ii. 2 l_>
Order. Heming
i. 417
v. Huddlebtoue ii. 238,289,
242
O'Reiley, exparte
19
i.

Ormond

ji.

131,

i.

199, 296

Oates v.
O'Brien

Vol. Pa.-e

Orr v. Kaines
Osborne v. Browne

2*28
ii.

Thornton

v.

ixxi

Page.

.1.

of,

OF CASES.

Sydney

i.7

Case
Lord Clinton

ii.
i.

ii.

v,

03, S(}
289, 290

ii.

i.

Alicot*

302
433.

150, 289
i.

518

NAMES OP CASES.

Lxxii

Vol. Pn

Palmer

ord Aylesbury

v. T
v.

Elliot

v.

Jones

\.

Mason

v.

i.

L21, 131
180. ii. 71

ii.
i.

Neve
v. Palmer
v.Price
Panquet, exparte
l.

ii.

230

Asm

ii.

v.

Blackburne
Blythmore
Brookes i. 473

v.

ii.

184
215
158

\.

104
i. 190, 201
Gerrard
i. 491
Hutchinson
Parker
i. 50. ii. 27
ii. 390
Prout

v.

516
>!, 417
ii. 207
ii. 530
ii.

v.

v.
v.

Parkes v. White
Parkinson v. Ingram

i.

ii

v.

ii.

Powlett

v.

v.

v.

Haycraft

Baron

ii.

v.

Cratchfield

ii.

v.

Grove

ii.

v.

Piper

Pearnev. Lisle

v.

Morgan

Pearson

v.

ii.

ii.

137,273,

294
75, 77

Partridge ii.
Patterson v. Slaughter ii. 220,
290,328, 411
Patonv. Rogers
i. 342. ii. 283
Patrick v. Harrison
ii. 170

Compton

v.

Paw let

v.
v.

ii.

Attorney General i. 416

Delaval
i. 378
156
Ingrey
i. 138,
Bishop of London ii. 143

v.

v.

Paxton, exparte
's Case
v.

ii.

Douglas

ii.

460,461
ii. 207
312, 370,
377, 395

Payler, exparte

ii.

Payley

ii.

Payne

v.

Field
Collier

v.

Payne

v.

i.

55.

36, 39
i.
173.

426
524

48, 05, 67,

ii.

ib.

I 'el lew v.
Pel ling v. Armitage

ii.
i.

ii.

>

322.

i.

i.

Pemberton

v.

Pemberton

ii. 1

50S
507

19,443
ii,

73

ii.

Pembroke, Earl

364, 308, 396

of,

v.

Bowden
i.

ii.

Lord Baltimore
S22.

Peacocke
Penny v. Edgar
Pentland v. Stokes
v.

Peploe, exparte
Pereira, exparte
Perkins v. Baynton
v. Proctor
v.

Thornton

Perrot v. Perrot
Perry v. Barker

v.

Murston

289
202

ii.

187

i.

304

i.

194,
v.

339
73,
188.

i.

Pendergrast v. Sanbergue
Pendleton v. Mackrory
Pengall, Lord, v. Ross
Penhryn, Lord, v. Hughes

Penn

53
368
279

209,210

i.

Mathers

v.

33

317

i.

ii.

Anderson
Gregory

v.
v.

Pember

190

207, 429

ii.

exparte
's Case

Pelliam

ii.
ii.

ii.

Belsher
Brereton

v.

-- v.

Peril ey,

190.

Simpson

Pearsal v.

Pearson

i.

307
379
292
145

292, 298,

i.

v.

Paul

of

26, 37

i.

v.

Pearce

472
Partridge

76

of Bedford
ii.293
Evans i. 98, 99, 213
Monk i. 217, 228,
320, 373, 375, 377
Peacocke
i. 78.
ii. 189, 300

375, 473

392
Parnell v. Lyon
ii. 29
Parr, exparte
ii. 520
Farry v. Owen
ii. 230, 434
v. Rogers
i. 159
Parsons, exparte ii. 457,458,478
v. Freeman
i. 478
v. Parsons
i. 68
Parrot v. Bowden
ii. 241
Parteriche

v.

188

i.

Duke

Duke

v.

ii.

Appleton

v.

Peacocke

55

i.

ii.

~~.

Vol. Page.

Peace v. Chamberlaine
Peachy, Sir Henry, v.
Somerset

2:30

i.

Pupil Ion v. Voice

Paradice v. Sheppard
Pai ker exparte
.

305
507

ii.

i.

ii.
i.

ii.
ii.
i.

ii.
ii.
ii.
i.
i.
i.

i.

192,

419
287,

239
212
286
370
208
582
120
523
332
117
421
417

NAMES OF CASES.

lxxiii

Vol. P.ge.

Ferry

Phillips

v.

125,355,372,

ii.

374,410,413
Whitehead

\.

70,71, 410

517
i. 413
ii.
41
i. 256

Pett'sCase
Pettat

Petfr

i.

Ellis

v.

Ptttiwood

Prescott
Russell

v.

55.

i.

ii.

v.

Peterborough v. Mortlocke ii. 10

n 314
Peters v. Robinson
Petit v.Smith
i.
87,80, 91,92
i. 189
Petre v. Petre
Lord, exparte
Pettiward v. Preecott

i. -27.")

Peyton

v.

74

i.

Green
Philips v. Gibbons
Phillips v. Atkinson
v.

342
212

ii.
ii.

Duke of Bucks

ii.

100

i.

3-21.

ICG
205
150

ii.

v.

Carey

ii.

v.

Carew

i.

v.

i. 06,
Chainberlaine
442, 443

ii.

v.

Crawford
Gibbons
Paget

v.

Phillips

i.

v.

v.

i. 180
211,241
ii. 07

471, 475.
128, 175

ii.

Shaw
Vaughan

v.

v.

4S3
422
282

ii.
i.

Phippsv. Earl of Anglesea i.

v. Bishop of Bath
ii. 100
ii. 374
Pickard v. Muttheson
i. 2-3, 41
Pickering v. Keeling
v. Lord Stamford i. 70,
80,205. ii. 40, 52, 31
ii. 126
v. Vowler
Pickett v. Loggan i. 20G,212,214,
339.

ii.

210, 24*, 358

Browne

Piddock

v.

Pierce

v.

Taylor

1.180

v.

Waving

i.

Pierpoint
Piers

\.

v.

Lord Cheney

103
403

i.

i.472

Piers

Garnett
v. Shore
Pietj \. Ktace
Pike v. Home

Pierson

310

ii.

v.

ii.

ii.
i.

Pref.

White
Piling v. Armitage
v.

VOL.

I.

Stanhope*

viii

58
338

i.

ii.

Pilkington's,Sir Lionel, Case

*

271
120

i.

i.

ii,

138
211

Vol. Pae.

Pinckev. Cnrteis
v. Thornyeroft
Pipon v. Pipon
Pitcairne

Pitcher

i.

Ogbourne

v.

Helliar

v.

ii.

Pitt's

Case

Benyon
Lord Carnelford
Cholmondeley

v.
v.

v.

i.520
ii. 84
ii.7

83
72

i.

Fellows

v.

331
251
517
231
Ins

ii.

ii.

Hunt

235,386
40
v. Mackreth
ii. 289
v. Duke of Richmond ii. 399
v. Snowden
ii. 48,
107
v. Willis
ii. 337
Pitts v. Page
ii. 425
v.

v. .lack

v.

i.

-on

i.

Short

Plunknet

Kirk

v.

Plumbe v.Fluit
Plummer v. May
Plunkct

228
395

i.

40G

250, 429

i.

172.

i.

Pensou

v.

i.

ii.

Piatt v. Sprigg

147

ii.

404, 400.

i.

148,230,253
i. 494
Plymouth, Countess of, v. Bladou
ii. 282
Plyston v. Berrv
ii. 29
Pock ley v. Pock ley
i. 470, 505
ii.

Pierson

v.

Pocockv. Riddingtonii. 120,585

v. Pole
ii. 100
v. Lord Somers
ii. 01, 92
Polexfen v. Moore
i. 280, 400.
ii.
107
Pollen v. Husband
i. 431
Pomfret v. Lord Windsor i. 405.

Pole

ii.

320
480

i.

44(5

ii.

Pond foot, exparte

Poole

Poole

v.
v.

Rudd

i.

Pool v. Shergold
Pooley v. Ray
Pone v. Bish

i.

352

200, 343

v.

Crashaw

i.

03
252
380

v.

Curl

i.

125

v.

Onslow
Simpson

v.

Popham

v.

Bam field

v.

Horner

Portier v.

Dela Cour

Portington

Portmore

v.

v.

Tarbock

Morris

i.

ii.

425
i. 348
35, 86
ii. 375
ii. 210
ii. 437
i. 00
i.

i.

NAMES OF CASES.

Jxxiv

Portsmouth, Lord,

v.

Vol. Page.

Vol. Page.

Lord Effing-

Pringle v. Hodgson i. 385, 388

i. 387, 390
Prior v. Hill
i. 51.
Pritchardv. Quinchant

ham

411, 412

ii.

Portvne

Roberts

v.

v.

Chapman

v.

Keene

v.

Potter

Potter

Leighton
. Reynolds
Poulett's Case
Poulc v. Poulet
Powell v. Arderne
v. Cleaver

ii.

'285

i.

227

301,335

v.

270
ii. 70

ii.

ii.

<

v.

v.

234

ii.

200. ii. 79
114. 123, 537

325

i.

351
ii. 31

Price
i. 54
v. Robins
i. 483, 493
Powis v. Andrews i.200, ii. 191
v. Burdett
i. 398
v. Corbett
i. 424
--- v.

Powlet, Earl,

Pownal

Herbert

v.

King

v.

Pratt v. Sladon

it.

Tessier
Prescott, exparte
v.

Preston

ii.514

Long

v.

ii.

Parker

r.

v.

v.
v.

Fastnedge

v.

Gaultier

v.
v.

James
Hundreds

v.

Seys

v.

Shaw

ii.
i.
i.

175.

i.

of,

ii.

v.

Lamb

Wilkinson
Stebbing
v.

Prime

v.

Prince

Bromley

FTeyliu

v.

v.

-'s

v.

Loman

Case

ii.

227
i.

14

282

280, 389, 391

Prideaux
Pridgeon's Case
ii.

Primrose

184

i.

Priddey, exparte

Priestley v.

ii.

&c.

v.Williams
Prideaux

ii.
ii.

Rridgman
Dyer

v.

17

380
330
247
434
204
328
424

i.

Prettyman

exparte

Pri< e,

12,
ii.

Wasey

v.

Prettyman

118
ii. 555
85, SO
ii.

.240,242
ii. 275

Taylor

v.

v.

i.

Morgan i.
Cowper

46.

ii.

556
ii. 409
ii. 385
550, 553

Proud

ii.507

214
500
82
i.
i. 512
ii. 475
i.

ii.

Turner

v.

Proudfoot, exparte

Prowse

Abingdon

v.

22
46
ii. 470
ii. 38
61. ii. 29
ii. 307

Smith

v.

Ready
Smith
Hunter

v.

Pulsford

v.

Pulteney

v.

v.

Shelton

Purefoy v. Purefoy
Purse v. Snaplin
Pusejr v. Desbouverie

Pybus

v.

ii.

21

ii.
i,

i.

ii.

Pusey

v.

Pushman

Smith

433
7,10
i. 61
ib.

ii.6

v. Felliter
i.

357, 377, 378,

380
Py e

Daubuz

i.

George

i.

v.

420, 430
ii.

v.
,

exparte
v.

i.

327.

ii.

i.

v.

i.

ii.
i.

489-

303, 393
78, 79, 80:

Pvke

418
315
534
244

i.

Warren

i.

i.

77
316
ii. 109
i. 133
71, 72
i. 320
17,

i. 40,
Pulvertoft v. Pulvertoft
i. 205.
Purcel v. Macnamara
382, 387,
ii. 320, 321, 322,
389, 394

v.

Williams
Pvlev. Pyle
Pyncentv. Pyncent
Py ne v. Dor

390, 533,

ii.

Darlington

Fyke

ii.

21,
ii.

Pulestou, exparte
Pullen v. Cressy
v.

494.

i.

ii.

Pugh

<'17

i.

Combs

v.

40,506
i.417

Oates
Prodgers v. Phrazier
Proof v. Hines
Prosser, exparte

ii.

281

ii.

v.

i.

Morgan

v.

21

v.

Procter

i.

Evans ii.
Knowler
Marty n

v.

190

ii.

289
506

ii.

Probert v. Clifford

289, 291.

i.

il.

Potts

52

i.

104.

i.

189.

ii.
i.

332
303
234
314
115

Q.

Beck ford

Quarrel!

v.

Quick

Staines

ii.

190,304,
f.

305
467

ii.
Quilter v. Mussendine
ii.
Quintin, exparte
513.,

246
514

v.

NAMES OF CASES.

lxxv

Vol. Pa-re.

R.
Richefield
Kadclifl'e

Careless

v.

ii.

Warrington

v.

80

328,

i.

348
H56
i. 410
ii.
J 44
ii. 127
ii. 09

32!),

Radford v. Wilson
Radnor v. Vandebendy
Rainsford v. Taynton
Rakestraw v. Brewer

ii.

Raymond v. Broadbelt
Ramkissensent v. Barker

ii.

221,

243,319
Ramsbottom v. Gosden
i. 322
Ramsdenv. Hylton i. 211, 294
Randall v. Bookey
483. ii. 110
v. Head
ii. 266
Randal v. Morgan
i. 222, 297
v. Randall
i. 320, 328
i.

v.

Ranelagh
Raphael

i.50

Willis
v.

Hayes

v,

Thornehill

v.

Boehm

Vol. Pa ire.

Regina

i.

183, 192
ii.

434

114, 115,

ii.

de Bewdley
i. 23. ii. 368
i
Rennesey v. Parrot
ii. 70
Rennison v. Ashley
i. 166
ii. 130
Reresby v. Farrer
v. New land i. 400, 401,
Ballivos

v.

402
Revet v. Braham
i. 110
Reynish v. Martin ii. 25, 20, 29
Reynolds, exparte
i. 91. ii.53l
Reynoldsonv. Perkins
ii. 110
Rex v. Blatch
i. 16
v. Burrard
i. 15
v. Fowler
15
i.
ii. 521
v. Penot
v. Sneller
i. 10
v. WhitstapleCompany i.75
Rhodes, exparte
ii. 475
Rich v. Coekell
i. 379. ii. 40
v. Jackson
i. 323
Richards
Chambers i. 377,

379, 380

421
Rashley
Rattray

v.

Masters
Darlev

v.

George

v.

Ravenhill v. Dansey
Raw v. Chichester

Rawlins

422
ii. 327
ii. 429
399, 403
ii. 120
ii.

i.

i. 27-")
Goldfrap
v. Powell ii. 37.290,371
Rawson, exparte ii. 102,405,471
Rawstonev. Bentley
i. 34
Raj \. Fenwick
ii.
153
Raymond's, Lord, Case
i.277
Raymond v. Broadbelt
ii. 00

Noble

v.

Symes

Richardson

v.

v.

ii.

i. 122
364,368,

Chapman
Greese

ii.

ii.

v.

Rayner v. Julien
Read v. Bowers
v. Brook man
v. Devuynes
'

v.

v.

Litchfield

v.

Phillips

Reade

v.

Snell

v.

Truelove

i.

ii.

Rider

ii.

v.Kidder

75
75
293, 573

v.

Ridout

v.

Dowding

v.

Lewis

lt7

v.

Payne
Lord Plymouth

i.

ii.

183

370,
ii.

Ridges

v.

v.

122

Reay v. Hopper
i. 487
Redding v. Wilks
i. 298, 3U4
Redington v. Redington i. 191,
"
10-3. ii. 99
Redman v. Redman
i. 230
K< es v. Parkinson
ii. 2S2
Reeve, exparte
ii. 466,548
Reeves v. Brymer
i. 272
v. Reeve*
i. 188

Rigby

v.

ii.

Morrison

ii.

Darwin

ii.

i.dO

473
05

i.

i.

485,

500
Macnamara ii. 380,383,
384

v. Sykes
Rigge \ Bowater
Rightson v. Overton

11

l.

Rimene, exparte
Riotter's Case
v.

73,

i.

Rigg

Ripley

184
425

ii.98,101

Wager

v.

520

ii.

ii.

Bayley

v.

38

237.

261, 352

Ridgeway

73,304.

:,

i.

235
i.
132
23. ii. 13S
ii. 93
i. 475
ii.

v.

Tayleur

v.

Ricketts, exparte
Ricov. Gaultier

ii.

i.

22, 36,

Richmond

369
120

7,

Waterworth

NAMES OF

Ixxvf

Vol.

Rippon
Ritchie

I'ajrc.

v.

Dawuincr

i.

v.

Rowley
Aylw\ n

n.

v.

Rivers's Case
, Earl,

374

Earl Derby

OS

404.

i.

Brahara

v.

Roach

Garvan

v.

ii.

23
177

203, 205, 275,

277
Ilavnps

v.

Roake

Robert

ii.

ii. 225,
240, 301

570

ii.

ii.226

82

ii.

Dixwell

357,447,

i.

449, 450
,

TIartrey

Kuffin
IMassey
.

i.

83.

ii.
i.

Pocork

Romuev

ats.

Rondeau

v.

ii.

i.

227, 233,

ii. 90,291, 292

John
i. 301
Wilkie
ii. 185
Bavasor
i. 434
Lord Byron i. 129

Robinson

v.
v.

v.

Cummings

v.
v.

Litton

v.
v.

ii.

i.

114, 115,

Roome

v.

Rose

Calland

v.

v.
v.

Tickell

v.

Tonge

Wardell
Calze
Cranwell
Hetheriugton

v.

Roddam

Roche v. Hart
Roden v. Snrth
Roel>uck v. Dean

ii.

ii.

ii.
ii.
ii.

ii.

55

487
122
ii. 79

i.
i.

Bennett
ii.

i.27
522, 502

373

i.
i.

107, 108

Rougemont

v. Royal Exchange
Assurance Company
ii. 204
Roundell v. Currer
ii. 378
Rous v. North
i. 181
Routledge v. Burrell
i.23
v. Derriel
48, 249

Row v. Dawson

Rowe v.
v.
v.

Rowth
Roy v.

ii.

434
2 3

ii.

274

i.

Gudy,eon
Jackson

'390

i.

v.Teed
Rowlandson, exparte
Rowley v. Ridley

ii.

238, 209
ii.
ii.

518
315

Howell
ii. 119, 121
Dnkfcor'Beauforti. 33,240
Royal Bank of Scotland, exparte
ii.541
v.

Ruck v. Kennegal
Rudge v. Hopkins
v.

i.

Runt

Atkinson

Hammond

v.

Long

78
50
370
507

i.

184,185
ii. 321
i.

217

83
547
i. 420
ii. 483
ii.

i.

428,

Cooper

Whittle
Rutherford v. Dawson
v.

v.

149

77,

ii.

ii.

v.

Russell
v. Smithies
, exparte
v.

253

ii.

v.

v.

i.

ii.

Rumbold

Rush v. Higgs
Rush forth, exparte
Russell v. Ashby

358

13, 14

103
i.

Rose

v.

284
530

186
ii. 120
14, 18, 19

475, 504

v. Ewer
Rotheram v. Fanshaw

97
499

183,

ii.

i.

Ross, exparte

ii.
i.

v.

'

Rose

Rumbold

Lord Rokebv ii.156

Taylor ii. 108, 110
Stevenson
i. 14

204, 210

Rosewell's Case

131

v.

ii.

ii.

Cunninjjhame

v.

78,80
i.402

Roome

Rnfiin, exparte

Pett

i.

Wyatt

119
v.

v.

v.

301,

i.

114,342
Davison i. 409,410
Gee
i. 477, 499
Hardcastle
ii. 44
426.

484
490
i.
33

ii.

ii.

Rooke, exparte

v. St.
v.

RbbsOn

52
415
352

i.

Roberts

Robe

211

ii.

Kingsley
*

Skillicorne

313

ii.

575, 578,582

Cook

v.

Vol. Pj?c.
n. 270, 340

Rolfe v. Patterson
Rosewell v. Bennett
Rolt v. Rolt

74.

i.

Clayton
.

347

i.

Milehamp

v.

Roberts, exparte
's Case

0:}

ii.

K dd
Roberdeau v. Rous
v.

v.

Gore
Mackenzie

v.

235-

ii.

Rivet

Rogers

i.3rt

i.

v.

CASES,

Miller

ii.

i.432
ii.

310
305

ii.

297

i.

NA.MES OF C

XX

Vol. Page.

Rutland, Duke of, v. Duchess

of Rutland i.4(i7. ii. 88, 89, 01
Rutter v. Gutter
i. 515
Ryall v. Rowlesi.256. ii. 495,012
v. Ryall i. 490. ii. 98, 124,
125
Ryan v. Macmarth
i. 1H4
Ryder v. Bentham
i.
129

Danbuz
Ryves v. Coleman

Rye

v.

- v.

i.

ii.

Ryvea

420
348
"227

ii.

O
oansuaa

Sackvijle

Sabberton
Ayleworth

v.

v.

Saddington

v.

i.
i.

Kinsman

390

i.

ex parte
ii. 543
v. Hobbsii. 118, 122, 123

ISadler,

Jackson

v.

Commonalty

Sadler's

226

i.

Case

of,

ii.57G

Saggittarv v, Hyde
Salkeldv. Salkeld
v. Science

i.

217, 500
ii.

ii.

Savignon

Sullis v.

i.

252
237
279

Salmon, Dr. v. Hamburgh Coin

ii. 300
pany
Salter, exparte i. 2G7, 208, 271
Hite
Melruish

v.

Saltern
Salt's

v.

ii.
i.

Case

Salvadore

ii.

Thornton
Salway
v.

Salway v.
Samines v. Rickman

ii.

Samudo

v.

Furtado

Samwell

v.

Wake

Sanders v. Pope
Sanderson v. Walker

San ford

v.

309
258
524

ii.

102

i.

272

i. 489.
390, 421

403
474

ii.
i.

27, 31
92, 93,

i.
i.

94. ii. 421, 422

ii. 321, 322, 324

ii. 392
Biddulph
ii. 314,315
Sand ford v. Paul
-^ v. Remington ii. 312,
313
Sandon, exparte
ii. 456,465
Sands v. Sands
ii. 309
Sandys v. Sandys
i. 401, 402
Sangossa v. Watson
ii. 424

v.

v.

East India

Sansbury

v.

Read

Company
ii,

143
13

ii.

119,

Sawyer

Bowyer

v.

'''

ii.

192

i,

ii.

4r,{)

exparte

541,042
ii. 393

Serjeson v. Cruise
Sarth v. Blanfry
Saul v. Wilson

194
i.47

i.

549

ii.

Saunders v. Dehew
i.3G3, 409
Saunderson v. Class
i. 90
Savage v. Carroll i. 300. ii. 201

367
155

Bragington
Sant v. Wilson
Saumarez, Jolm De,

8.

Sabberton

Vljl

T,

v.

v.

v.

Foster
Smiillbroke

i.394

v.Taylor
SavilJe's Case, Mr.

V.

>

Savory

i.

321,323

Saville

ii.77
ii. 383
173,272
ii. 537

193.

i.

Dyer
Saumarez, exparte
v.

ii.

Saunders v. Earle
Sawley v. Cower
Sawyer v. Bletsoe
Sax ton v. Davis
Say and Sele, Ford

ii.
i.

ii.

Fail

of,

v.

511

ii.

422

Parker

187

i.

Scarth, exparte

513
400

ii.

Burton

v.

13

254

ii.248
ii.

Sayer, exparte

Scarborough

120

i,

Blackett

v.

'220

ii.

460,526
ScheHinger v. Bluckerby ii. 493
Schenck v. Legh
i. 398, 299
Scholefield v. Whitehead i. 320
ii.

Schoole v. Wall
Schrieber v. Fateward
Scott, exparte

v.

Fawcett

i.

Hough

v.
v.

Mackintosh

v.

Murray

v.
v.

Nesbit
Scholey

v.

Scott

v.

Tyler

421
281
ii. 470
199, 201
ii.
158
ii. 285
i. 322
ii. 385
i.

i.

i.20f)
i.

229.

Vernon
Scrafton v. Quincey
Scriven v. Tapley

ii.

25, 28

v.

Scroope

v.

Scroope

Scudamore, exparte
v. Wlhte
Seurfield

Seagood

v.
v.

40(j

i.

Howes
Meale

ii.
i,

25

201
:j^!>

i.

ii.

ii.

ii.
i.

Of)

497
i. 79
1

18

304

NAMES OF

lxxviii

CASES.
Vol. Page,

Vol. Page.

201
v. Seagrave i. 2C0, 333
i. 477
Seal v. Brownton
ii. 479, 581
Seaman, ex parte
i. 342
v. Vawdry
Seamer v. Bingham i. 282,284
ii. 354
Searle v. Lane
Sedgwicke v. Hargrave i, 311,
345

Seagrave

v.

Edwards

ii.

v.

Wat kins

ii.186

v.

i.

317

v.

ii.

421

Jago
Hi nd
Seilez v. Greathead
Selby v. Alston
Seely
Seers

v.

Selby

Seley v.
Sellack

Wood

i.

ii.

Harris

v.

v.

v.

v.

i.

ii.

237

i.

361

G7, G8

314
ii. 369
ii. 26

ii.

Brid^man

Semphill v. Bayley
Senhouse v. Earl

25:

168, 171,
189. ii. 104
i.
47, ii. 587
i.

Sergison v. Sealey
ii. 353
Serle v. St. Eloy
ii. 407
Setcole v. Healey
Seton v. Slade i. 28, 289, 291,
329, 343, 415. ii. 293, 428
i. 27
Sewell v. Masson
ii. 183, 185
Sliaftoe v. Shaftoe
Shaftsbury, Lord, v. Arrowsmith
i. 165. ii. 148
.
v. Shaftshury ii. 78
Shakeshaft, ex parte ii. 117, 504
i. 484
Shalcross v. Finden
ii. 512
Shank, ex parte
ii. 81
Shanley v. Baker
Shannon v. Bradstreet i. 46,47,
292, 293, 334,412

18
i. 357, 361
Shapland v.
ii. 517
Sliarpe, ex parte
v. Carter
ii. 1 88, 232

ii. 117
v. Gamon
v. Earl
of Scarborough
i. 418, 491
ii. 266
Shaw v. Chine
-ii. 81
v. Cunliffe

v.

Shannon
Smith

Wright

v.

Sheberry

v.

Weigh

ii.

165

ii.

398

v.

Sheffield v. Lord
.

Shelborne

Sherman

v.

22
79
272
179
156
359

ii.

Sherman

v.

171

i.

Collins

v.

Sherwood

Clarke

v.

v.

i.

Smith
White

i.

ii.

ii.
Shine v. Gough
ii.
Ship v. Harwood
Shipbrooke, Lord, v. Lord Hinchinbrookei.277.ii. 122,128,
396, 441
i. 494
Shiphard v. Lutwidge
Shirley v. Lord Ferrers i. 152,

v.

Martin

v.

Stratton

Watts
Shirt v. West by
Sholbread v. Macmaster
Shore, Lady, v. Billingsly
v.

Short

Wood

v.

Shudal

186
227
i. 321
i. 418
ii. 67
ii. 179
ii. 82
i. 318
78,79

i.

ii.
Jekyll
ShuttlewoTth v. Laycock

v.

i,

424,

425
Shrewsbury, Countess
Earl of Shrewsbury
Sibley
Sibley

v.

192
ii. 20

i.

Cooke

v.

Perry

i.

486.

i.

446

v.

of,

ii.

8, 11,

Sibthorpe

v.

Sidgier

v.

Birch

ii.

68
20
382

v.

Tyte

ii.

201

i.

341.

ii. 40, 47
Mulgravei.346
-- v. Lord Orrery
i. 367
Shelburne v. Inchiquin i. 42, 60
i. 260. ii. 257
Sheldon v. Cox
i. 403
v. Dormer
ii. 567
v. Forteseue
i. 202, 203
Shelly v.
208
Shelton ats. *
ii. 260
Shepherd v. Roberts
i. 192
v. Wright
i. 423
v. Tilley
ii. 376
Sheppard v. Kent

Sneddon

Sidney

i.

Briggs
Goodiich

v.

-107

ii.

Thornton
Selwood v. Mild may
*
Selwyn v.
Selwin

89, 91
i.

Dawson
Lewen

Sellers v.

Sellon

218
305
ii. 267

ii.

Shaw

Moxon

ii.

ii. 181
Hetherington
ii. 249
v. Perry
333.
i. 308,
v. Sidney

v.
.

334
357
i. 25

ii.

Silvester v.

Silway

v.

Wilson

Compton

i.

NAMES OF

CASES.

Jxx.x

Vol. Page.

Silk

255, 494
Lord Kinnaird
v.
i. 166, 170. ii. 107
Vallance ii. 7, 8, 10,

Prime

v.

Simmonds

Simmons

v.

i.

Simpson, exparte

ii.

Vol. P3<\

Smith
~-

v.

Cooke

v.

Duffield

v.

i.

77

v.

175, 404,

v.

Hibernia

v.

i.
i

ii.

Company

525

Vaughan

v.

Sims

v.

Yickars

i.

Naylor

ii.

Sinclair v. Hone
Sisson v. Shaw
v.

i.

Bernard

v.

Warner

ii.

Marshall

ii.

v.

Moon

i.

v.

Ktade

287
501
ii. 182
23, 191

i.

298
30

ii.

ii.

161

i.

390.

i.

ii.

95
334

i.

181

27
22G
i, 33
i. 403
i.

i.

Fitzwilliams

Wing

i.

71

Hamilton
ii. 245, 340
v. Onions
i. 122
Prujean
i. 487. ii. 51
ii. 447
Wolfe

Smith, exparte

77.

i.

407, 502,
532, 559

ii.

v.

Althns

v.

Aykvvell

v.

Baker i. 58.
Barnes

ii.

v.

ii-

Bate
i. 209.
Broeklesby

ii.

v,

Broomhead

ii.

v.

Bra nning
i.
Lord Camelford i.
Cave
ii.

v.
v.

v.

v.

Clarke
Clay

i.

i.

257.

80.

ii.

ii.

ii.

i.

i.

170

583
433
472
227
473
372
334

347,

410, 437

118
285
158
102
i.35

ii.
i.

22
173

Serle
ii. 270
Smith i.27G, 283, 309,
514. ii. 21,103
v. Turner
ii. 350
v. Wilmer
i. 16
expaite
ii. 4S3
Smitherv. Willock
ii. 13
Smithey v. Kdmoudson
ii. 472
Smithier v. Lewis
i. 109
Smithson v. Thompson
i. 424
Snelley v. Flatman
11
i.
v.

v.

'

Snellgrove v. Bailey
i. 23. ii. 5
Snellsou v. Corbet
i. 507
Siieyd v. Snevd
i. 238
Sockett v. Wray i. 377, 37S, 381
Solley v. Cower
i. 473, 490
Somerset, Duke of, v. Cook-on
i.

Fotherby

v.

Somerville

v.
v.

v.

Sommerville

i.

Chapman
Mackay

i.

ii.

190
150
309
269

Mackler
ii. 285
v.
Sommerville
i.

Souley v. blaster
Southcote, expaite

98,1(4
ii. 199

v.

v.

4G7. ii.350

393
227.

i.

ii*

v.

v.

Smulley v. Small ey
Small man v. Lord

v.

Kempson
Low

05, 08, 69

Sleeman v. Sleeman
Slocombe v. (irubb
Sloman v. Walter
Small v. Beachley

v.

v.

ii.

ii.10,

Smart

v.

30
442
590
335

i.

V.

Slanoy v. Styles
Shinning v. Style
Sleech v. Thorington

v.

152

ii.

Harwood
Huey

v.

Hoskins

ii.

v.

v.

v.

71

272.

Skeffington v.
Skip, exparte

Skipp

ii.

Morris
Partridge

ii.

158

ii.144,

i.

Doughty

v.
v.

Sitwell

59.

i.

35
401
327
559

n.

Evans
French
Hibbard

123, 188

i.

ii.

517
365

571, 572,

578
v.

Watson
ii.

444.
80, 88, 90, 91

Southwell v. Abdey
South Sea Company

v.

i.

i. 337
Bumstead

ii.

v.

Wymonds

Southby v. Stonehouae
Sou den v. Sowden i. 313.
Spalding v. Shalmer

i.
i.

252
205
374

ii.

125

i.

352

NAMES OF

ixxx

CASES.
Vol. Pafrf.

Yo!. Pa?>.
ii. 33
Sparkes v. Cator
Sparks v. Company of Liverpool

Water Works
Sparret

Sparrow

ii.

Hardcastle

v.

38
543

i.

Spiller

v.

i.

Standisb

Stanhope

i.

Lynn

Spearing

v.

Speed

v.

Phillips

Speldt

v.

Lechmere

Spence

v.
v.

i.

Bryan
Bryant

ii.210
ii.216

v.

ii. 15
Bullock
Earl of Chesterfield
i. 267
Spencer
i. 240

v.

Wray

v.

v.

S purling

v.

ii.

Toll

i.

Spe'.tigue v. Carpenter

ii.

Spink v. Lewis
Spragg v. Binkes

v.

397
447
555

ii.

ii.
i.

Fitzgerald
ii.

v.

John
278
ii. 31 9
Stace v, Mabbot
i.
279
Sjackpole's C;tse
ii. 20
Stackpoole v. Beaumont
.
v. Howell
ii. 93
v. O'Callighan ii. 217
Stack house v. Barnston i. 73.
John, Lord

v.

Ladv,
i.

St.

308.

ii.

ii.

'Standen

v.

Edwards

v.

i.

ii.

378
381

434
579
i. 307
ii. 75

i.

ii.

i.

400, 401,
517, 519

Habergham

397
110
509
422
395

i.

ii.

Stanton

v. Piatt

Stanyford

i.

Sadler

v.

v.

i.

Tudor

Stapilton v. Scott

ii.

343, 344,

i.

346

Stapleton

v.

Stapilton i. 62, 324,

327. ii. 139

v.

Cheales

v. Colville

ii.
i.

v.

Conway

i.490. ii.09

Palmer
Shenard

i.

14
171

ii.

515
357

ii.

Staunton v. Oldham
Stebbing v. Walkey
Steed v. Cragh
Steel, exparte
Stevens v. Bagwell
Stewart v. Stewart
Steele v. Wright
Stent v. Robinson
Stephens, ex parte

i.67

i.310
ii.

474, 480

82
ISO
i. 33
ii, 71
ii.

ii.

ii.

512,514

v.

Lord Viscount Batei. 215

ii. 159
Cini

v.

Olive

v.

i.

Trueinan
Stephenson v. Gardener

220, 308

v.

i.
i.

ii.

v.

FIoul ditch

Wilson
Crawley
Roehefort

i.

v.

Stt

Sterne, ex parte

Stevens

Avery
Dethick
Praed

v.

v.

v.

327
200,
211

151
04

i.
i.

12

475, 470

v.
v.

410
220

i.
v. Plank
Stamford Friendly Society ii. 501
v. Hobart
i. 447, 450

Marshall

Stanfield

244

Stafford v. City of London ii. 142

Staines v. Morris i. 341, 348.

v.

Potter
Stanley

ii.

Lee

v.

22G

Hancock i. 329,348
Glynne i. 470. ii. 07
Squib v. VV'ynn
i. 434
i. 330
Squire v. Baker
v. Compton
i. 408
i. 473
v. Dean
ii. 219
Squirrel v. Squirrell
St.

v,

v.

81

v.

Spurway

Stanley, exparte

13

i. 305.
287, 290

3(0

ii.

549

ii.

Sprigg v-, Sprigg

Spurret v. Spill er
Spurrier

294
213
43, 253
ii. 314
ii. 487

170.

i.

Earl Verney

v.

i.

Spencer's Case
-

314

224

i.

Roberts

v.

ii.

Allen

v.

400, 410,
411

Pref. x.

Speake

v.

ii.

Cope

v.

354, 412

Speake

Radley

v.

i.

308

380, 381
i.

ii.
i.

i.

389
319
435
400
161

NAMES OF CASES.

lxxxi

Vol. Paae.

Stevens
Stewart

v.

Savage

v.

East India

v.

Rowe

v.

Worral
Ashdown.

279

i.

Company
1*47

ii.

Rtileman

v.

Stockley

v.

Stoekwtll v. Terry
Stokes, exparte
v. M'Kerrel
Stone v. Evans
v. Lidderdale

i.

v.

Supple

v.

01, 239,

Surrey

ii.

ii.

493

ii.

180

108
570
272

ii.
i.

71,

i.

104,237,251,255
Stoughton's Case
ii. 570
Stowell, Lord, v. Cole
Strachey v. Francis

Sutton

v.

Harris

Stratford

Strathmore
Stratton

Hogan

v.

v.

Howes

ii.

Best

v.

Grymes

v.

401
i. 120
ii. 47, 49
ii. 304
ii. 2(8
285, 280
ii. 43
ii. 25
40, 41

Strange
Street

Harris

v.

Lord,

Rigby

v.

i.

ii.

33, 321.

ii.

Stribblcliill v.*Brett

S:ribley

Hawkie

v.

Strickland

Strode

v.

Aldridtre

Blackburne

v.

v. Little
v.

Stroud
Strutt
Stuart

Parker

v.

Deacon

v.

Marshall

v.

v.

Baker
Tavlor

Stubba v.
Stud holme

v.

3
30
252

ii.

Smith

v.

Hodgson

231
301

i.

ii.

240,

i.

253
109
ii. 240
i. 28
i.

166

i.

ii.

592
80

i.

ii.

5!)

ii.

348

i.

180

02

ii.

Corporation

of,

Wilson
ii. 324
Sutton v. Earl of Scarborough
v.

i.

147, 175.

tv. Stone

23S

ii.

420.

i.

105,

ii.

418
Swannock v. Lyfford
Sweet v. Anderson
v.

Partridge
Southcote

v.

Young

v.

Sweetapple
Swift

v.

408, 410
l.

ii.
i.

171.

ii.

Bindon

i.

ii.

Sydebotham

v.

Hastings
Da Costa

The

v.

ii.

ii.
i.

ii.

v.

Tweed

468
193

587
394
501,

ii.

Countess

Burre

Symondons

258
205
290

182, 1>3
ii,

Sylva v.
Syniance v. Tattam
Symes, exparte
i. 173.

Symonds

35

354, 443
ii.

Swift

v.

Sykes

v.

i.

51.

i.

ii.

358. ii. 193

Hospital of.

i.

ii.

Streatfield v. Streatfield

408
525,535
ii. 480

ii.

Coldtield,

07, 110
i.

(i3

ii.

i.

v.Jones
Sutton
Case

543
i. 80

ii.

Stnalley

v.

I(i5

i.

Brady
Thorpe
Lowson

Surtees, exparte
Sutton, exparte

ii.

v.

Howard

331, 437.

i.

Stouehouse v. Stouehouse
Stone's Case
Storke v. Storke
Story v. Lord Windsor

Strahan
Strange

v.

221

v. Tnffin
JStonehenge v. Evelyn

Sumner

290

324
425
ii. 473
ii. 323
ii. 20

v !>

ii.229, 232
v.

i.

ii.

Sturgis v. (oil.
i. 379
i. 79, 309
Sturt v. Mellish
Styles v. Cowper
i. '293
Sutfolk, Earl of, v. Green
i. 155

i.

Bailey

Stockley

f>47

Pan

I.

ii.

21!).

ii.

Attorney General

v.

v.

TingcomLe

v.

99, 100

Si iles, ex parte

420

i.

217,

i.

ii.

Stint

327

ii.

V.

Study

i.

524
de
2<1

305

T.

Tabor

Grover
i. 414
Taggartv, Taggart
i. 52, 54
Tait, exparte
ii. 4(:4
v. Lord Northwiek
i. 475,
470, 488. ii. 384
Tamworth v. Lord Ferrers ii. 119
Taner v. hie
ii. 419
Tanfield v. Davenport
i. 385
Tankerville, Lord, v. Fawcet i. 478
Tanner v, Wise
i.
104
Tappen v. Norman
ii. 223, 317
Tarbuck v. Marbury
i. 431
v.

NAMES OF

Ixxxii

CASES.

Vol. Pase.

Vol. Pas*.

472 Thomas v.
ii. 279
v. Hilhert
v. Bennet
i. 403
i. 292. ii.37
'
Tat ton v. Molineux
v. Britwell
i. 307
i.483
Tawney v. Crowther
i. 298
v. Davis
ii. 378
Taylor's Case
v. Daw kins
11. 522, 524
ii. 192, 379
'
v. Freeman i. 434, 435
v. Allen
i. 131
v. Atwood
v. Hodson
ii. 345
i. 518

i. 208
v. Ketteriche
v. Beech
i. 519
v. Llewellyn
v. Bouchier
ii. 438
ii.271

v. Field
v. Oakley
i. 77, 112.
i. 121
v. Thomas
ii. 4C2, 462, 464
i. 251
v. Haylin
i.
ii. 205
82 Thompson's Case

i. 228
exparte
v. Hawlins
ii. 459
v. Johnson
ii. 71
v. Attfield
i. 41
221
i. 208
v. Jones
i. 218,
v. Harrison
i. 31
v. Jones
ii. 158
v. Knight
v. Leitch
ii. 186
v. Stanhope
i. 125
ii. 435
v. Lambe
ii. 293, 394
v. Lewis
26(5,
i. 325
ii. 211,
v. Milner
v. Thompson
ii. 437
267

i. 290
i. 495, 496
Neville
v. Towne
ii, 314
v. Tooke
Pophatn i. 35. ii. 347,
ii. 440
433
v. Waller
409
ii. 470
exparte
v. Sharpe
v
ii. 99 Thorn v. Watkins
v. Taylor
i. 157
i. 43
Thome v. Pitt
ii. 399, 401
v. Wheeler
ii 272
Thornhill v. Evans
i. 214, 427
v. Wrench
ii. 38
Thornton v. Dallas
ii. 544
Teacoek v. Falkener
v. Dixon
ii. 103
Temple v. Bank of England
ii. 109
174
v. Hawley
ii. 152,
v. Rouse
ii. 459
ii. 400
Thorpe, ex parte
ii. 490
i. 267
v. Goodhall
Tenham, Lady, v. Barret
- Lord, v. Herbert
i, 136,
ii. 275
Thurston v. De Chair
tm
i. 211
140, 267 Thyne v. Thyne
437 Til lot* on v. Ganson
ii. 280
Tennet v. Bishop
ii. 560
Tinney v. Tinney
ii. 47
Tenniliteaw, exparte
ii. 426
Tipping v. Tipping i, 501,506
Teneur v. Tenour
i. 506
Tirrell's, Lady, Case
i. 24
Terresey v. Gory
i, 268
Tittenson v. Peat
i. 82, 234,
Terry v. Terry
ii. 252
Tewv. Earl of Winterton i. 472,
i. 115
489, 490, 491. ii. 291 Toby v. Molyns
i. 350. ii. 229
Texier v. Margravine of Anspach Todd v. Gee
Tate

v.

Austin

i.

'

i.

"lhanet

Tharpe

v.
v.

Paterson

Tharpe

i.

ii.

172 Toliett
143
192 Tolson

v.
v.

v.

Fletcher
Toilet
Collins

i.
i.

362

47, 56, 495

ii. 33, 38

i.284 Tom kin v. Lethbridge ii. 270,

Tlu obald v. Dt fay
i. 366,
444
ThelluMjn v. Woodford
i. 496
442. n. 41 Tomkrns v. Tomkins
i. 198
Tomkinson, exparte
Til ley v. Bridges
ii, 523
Earl of Tomlmson, exparte ii. 571, 572
Thomond, Earl of,
ii. 76
251,
Suffolk
v. Dighton
i.
374
i. 272
Thomas, ex parte

NAMES OF

CASES.

Vol. Page.

Tomliiison

v. Gill

ii.

Tongsma v. Pfiel
Took v. Took

ii.

Tookev. Hastings
Topi in v. Stuart

i.

184
223
242
313

n.

.';->

Harrison

v.

Topping

ii,

ii.

394
ii. 37
i. 23
i. 515

Pi^ott

v.

i.

Totson v. Collins
Totty v. Nesbit

Touke

Lewen

v.

Toulinin

Price

v.

i.

22, 43.

138

ii.

Tourle v. Rand
Tourton v. Flower
Tourville

Naish

v.

Townshend

v.

v.

Ill

118
74, 75
ii. 122
i. 208
ii.

Ash

i.

Barber

Lowheld
Maiquis of,

Stani. 42, 301, 321, 323

i.
Townsend
352,

groom

ii.

ji.

v.

..

i.

i.

i.

Challoner

v.

Tucktield

ii.

v.

v.

362
,

Lord,

Tracey, Vise*,
Trafford

v.

v.

v.

v.

Wvndham

i. 218,
Hereford

Ash ton

Boehm

490

ii.

115,

i.

194
403

i.

i.

317, 318.

124
583
547
374

109, 114, 119,

Tranmer, exparte
ii.
Trap, exparte
ii.
Travell v. Travell
i.
Travers v. Buckley
ii. 144,
ii.

v.

Lord Stafford

Trebec

v. Keith
Treblecock's Case
Trefusis v. Clinton
Trelawney v. Williams

i.
i.

ii.
i.

3-tO

ii.
i.

Trender, exparte

i.

255
05, 120
i. 50
ii. 409
ii.

ii.

15

19

383
239
307
208
348
307

ii.
ii.

Tremaine v. Tremaine
Trenchard v. Wauley
Treney v. Hanning
Trent v. Hanning
Trevannion v. Moss
Treves v. Townshend
Trevor v. Trevor
Trig well, expaite

101

374

i.

(i0

ii.

497, 499

i.

92
427
Troughtorj v. Gittey ii. 491, 535
Tristham v. Melhuioh
i. 33G
i. 309
Tritton v. Foote
Trouliton v. Trouyhton i. 424
495
i. 258
Tucker v. Phipps
v. Tim rstan
i. 41G
v. Wilson
i. 419
ii.

House

Trinity

420
228
434
475
307
250

i.

Tower v. Lord Rous

Towkes v. Chadd
Towle v. Rand
Townley v. Bedwell

Vol. Page.

Trimblestown v. Colt
Trimmer v. Bayoe

v.

v.

i.20O
i. 58
380, 387

v.

v.

Tullit

Tully

v.

Tuck

v.

Tally
Houlditch

Tullit

ii.

Buller

Auson
v. Samvne
Tudway v. Bourne
Tuffnel v. Page

Tudor

79, 80.

Ryal

i.

ii,

540,
i.
ii.

57
45
120

ii.32

Tupper, exparte
Turing, exparte
Turner, exparte

542

i.

ii.
ii.

491
591

507, 52(5

ii.

Edward, Case i.38G

v. Burleigh
ii, 319, 320
331
v, Morgan
i. 200
v. Richmond
i. 422
v. Turner
i. 3G8, 435.
ii. 219, 352, 419
Turton v. Benson
i. 231, 435
Turwin v, Gibson
ii. 435
i. 187
Tutton v. Molineux
Twiiitcs, exparte
ii. 459
Tweddell v. Tweddell i. 478, 479
Twine's Case
i. Ill
Twining v. Morrice
i. 257,321
ii. 337
Twig v. Fy field
ii. 380
i. 450
Twisden v. Lock
v. Twisden
ii. 34, 30
i.9S
Twistleton v. Griffiths
ii. 514
Twogood, exparte
v. Swanston
82.
i.
.

's,

Sir

ii.

Twort

v.
v.

Tynt

v.

Dayreli

Twort
Tynt

Tyrconnel, Lord,
Ancaster
Tyrel v. Hope
v. Tyrrel

5 IS

434
i.121, 123
ii.

i.

Duke
i.

ii.

191
of

252,340
492,493
ii.

05, 71

NAMES OF

Ixxxw

CASES.
Vol. Pace.

Vol. Page.

Tyrrell's Case

355

i.

Verney

Underbill

v.

Ilorwocd

i.

59, 186,

213

Underwood

v.
v.

Unett

Hitchcoxi,21 8,295
Morris
n. 25

Wilkes

v.

ii. 42
and Cam-

Universities of Oxford

bridge v. Richardson i. 17,113

University, Coll. Oxford, v. Foxcraft

Upham,
Upton

303
432
476

ii.

Unwinv. Oliver

i.

exparte

ii.

Bassett

v.

491.

i.

384
ii. 87, 92
249. 250
i. 119
ii.

Urqhart
Urlin v.

King
Hudson

v.

Usbome

v.

Utterson

v.

Usborne
Mair

183, 229.
ii. 152, 225
ii. 367, 566
i.

v.

Vernon
Halfpenny

v.

Uvedale

v.

Uvedale

ii.

ii.

Lord,

Uxbridge,

Vaillant v.

v.

ii.

311

v.

Farrar

Thomas

Vennor, exparte
Vere v. Loveden
Vernon, exparte
v.

Vawdrey

i.

ii.

Wadeson

v.

113,

ii.

ii.
i.

viii.

v . Smith

i.

Whorwood

Pref.

44,

360

377, 379
ii.

Wake

14

30
514

27,

i.

314
27

i.

North
Moocato

v.

117

48
198
Wakeman v. Duchess of Rutland
ii. 142
Wakerell v. Delight
ii. 213
Wakelin v. Walthall
ii. 338
Walcotv. Hall
ii. 13, 504
v. Walker
i. 124
Waldo v. Caley
ii. 63, 375
Waldron v. Forrester
i. 361
Walker v. Burroughs
i. 221.
ii. 491
i. 180
v. Cooke
v. Denne
i. 290. ii. 109
v. Easterby
ii. 217,218
i. 12
v. Fauderheide
ii. 557
v. Frobisher
v. Jackson
i. 474, 475
v. Meager
i. 473
Wakefield

v.

v.

16

14,

287

45,

i.

Calcroft

W&gstaffe, exparte
v. Wagstaffe

140
560
1

ii.

Wad ley v.
Wafer

v.

i.

ii.

W.

v.

ii.

461

558
47
464
373

ii.

ii.

Wade v.Paget

ii.55
8,

i.

ii.

Fernandez
Longdate

v.

63, 321
i.

128

ii.

Vizard v.
Voguel, exparte
Vowles v. Young

v.

v.

v.

ii. 380
Tale v. Davenport
Vancouver v. Bliss
ii. 415, 416
Vandenanker v. Desborough
ii. 490
Vanderzee v. Aclom i.247, 248
v. Willis
i. 424, 429
Vane v. Lord Barnard
i. 116
v.Fletcher
i. 41
Vannison v. South Sea Company
ii. 167
Vann v. Bttmett
ii- 188, 206
v. Clarke
ii. 21, 22
Varnee's Case
i. 100
ii. 374
Vaughan v. Blake

i.

Vincent, exparte

Waite

232

81
47, 291, 314
i.

243
Villareal v. Lord Galway
ii. 40
Villers v. Beaumont
i. 325
Villiers v. Villiers
i. 51,408

Wake

ii.

290

ii.

Vicars v. Attorney General

54

423, 424
Staveland

Dodmead

Vernon v.
Vez v. Emery

354.

i.

ii.

Verney
Vernon

*- v.

221

i.

Lord Ferrers

v.

Macnamara

v.

v.

ii.

Child

i.

Nightingale
i.257
Preswicke ii. 336, 350
Shore i. 275. ii. 14, 17
i. 353.
Small wood
ii. 151

v.

Thomas

v.

Walker

v.

Wcatherall
Wingrield

v.

i.

ii. 316
302,362
i. 270
ii, 317

NAMKS Or CASE*
Vol. Pape.

Wall v. Busby
Wallace v. Pomfret
Waller v. Childs

ii.
ii.

291

30, 37, :j8

502
v. Cox
i. 299
v. King
ii. 557
W alley v.Walley
ii. 12G
Wall is v. Hoclson
i. 518
v. Duke of Portland ii. 232
v. Thomas
ii. 374
Walpole, Lord, v. Lord Oxford
i.

i.295.

Walter v. Moody
Walters v. Taj lot

Waltham

i.

ii.

Brou nton

v.

ii.

394
189

Watts

v. St.

Paul

i.

Turner
Wardell v. Dent
v.

v.

2(14

ii.

4,

ii.

310

Morris

i. 202.
304, 375
Minor Canons of

ii.

Warden and

St. Paul's v. Cricketti.80.ii.368

Morris

202.

364,375
ii. 510
Wardourv. Beresford
i. 259
Ware v. Horwood
i. 64
Waring v. Ward
i.499. ii. 24
Warmistry v. Tanfield
i. 437
Warner, exparte
i. 200
v. Baynes
i. 200
v. Conduit
ii. 245
v. North
ii. 549
v. Watkins i. 62. ii. 529
Warren, exparte
ii. 581
v. Stawell
ii. 153
v. Warren
ii. 33
Warrington, Lord, v. Booth i.4S4
Warter v.
i. 274
Warwick, exparte
ii. 510
, Countess of, v. Edwards
i. 291
v.

Warder, exparte

v.

Birch

v.

Duke

51, 53.

i.

v.

Low

ii. 385, 380

Northumberi. 201
ii. 350

of

land

Watt

414
Walton v. Hobbs
ii. 338
V. Walton
ii. 90
Walwyn v. Lee
i. 190. ii. 255
Wankford v. Wankford
i. 471
Warburton v. Warburton i. 404.
ii. 410
Ward v. Bradley
i. 54
Ward v. Kepple
ii. 434
v. Duke of
Northumberland
ii. 234
v. Periam
ii. 555

exparte
ii. 517, 518

Warwick

ii. 104
Waters v. Taylor
ii. 252
Watkins v. Lea
i. 3C8
Watkyns v. Watkynsi. 391. ii. 3;J4
Watson, exparte
ii. 469

L39

ii.

v.

<'

Pa^.

Vol

Warwick

Grove

v.

v.

Weatherall

41,45, 55,59

i.

Thomas
v.

.-{()(>

i.

Bullas

v.

91

i.

Ball

v.

204.

i.

X H

220

i.

Geering

i.

333.

ii.

Weavers Company

v.

i.

Webb's, Mr. Case

v. Claverden
v. Conyers
v.

Rorke

v.

Earl

491

Hay ward
15, 10
i.

12(i

ii.
i.

227
140

i.

420

of Shaft sbury

134
540
v. Webb
i. 515. ii. 95
Webber v. Smith
i. 33
Websterv. Birch more
ii. 340
v. Bishop
ii. 557
Webster v. Hale
ii. 8,67, 68
-- v. Webster ii. 82, 85, 245
Weedon v. Fell
ii. 22, 287
Weeks v. Cole
ii. 219
v. Gore
i. 58, 470
ii.

Ward

v.

Staker

v.

ii.

Welby

ii.

v.

Duke

i.

of
i.

Wei ford

Beazely

v.

132

Rutland
135, 140
i.298
i.70

Wellings v. Cooper
Wells v. Corbvn

312
90
-- v. Price
i. 281
v. Wood
i). 290
Wenman's, Lord, Case
ii. 571
Wentworth v. De Virginy i. 326
West, exparte
ii. 10
v. Errissey
i. 51, 52, 54
v. Skipp i. 70, 77. ii. 40S,
495
ii. 384
v. Vincent
i

v.

Westly

Myddleton

v.

Clarke

Wetherell, exparte

ii.

i.

94,

ii.

i.

123
429

names of

Ixxxvi

cases.

Vol. Pa<rc.

Vol. Paa<.

313,511
Weymouth v. Boyer
i, 176
Whaley v. Norton i. 223. ii. 334
Whapnam v. Wingfield
i. 79
Wharam v. Broughton ii. 352,
"
363, 390, 404
Wharton v. May
i. 215
v. Wharton i. 41. ii.290
Whateley v. Kemp
i. 53
v. Smith
ii. 317
i. 346
Wheate v. Hall

148
188
v. Faussi ft
i. 23
Whitley v. Whitley
ii. 176
Whitmillv. Farrell
i. 288
Whit.nore, exparte
ii. 183
Whittey v. Price
i. 99
Whittingharn v. Burgoyne i. 228
Whittonv. Russell
i. 39, 253
Whitworth v. Davis
i. 172,

268
25, 27

24
143
Widmore v. Woodroffe
ii. 50
Wigg v. Tiler
ii. 566, 585
QT
- v. Wigwigg
ii. 103, 105
Wikes'sCase
i.364
Wilcox v. Drake
i.263
v. Wilcox i. 312. ii. 165
Wild v. Wills
i. 197
Wild man v. Wildman i. 382, 384,

We}- land

v.

Weyland

Wheeler, exparte

Wheldale

Bingham

v.

Caryl

v.

Newton

v.

Whitall
Partridge

ii.
i.
i.

Wicks

219, 221
303, 312
i.

i.

ii.

ii.

231

ii.

v.

i.

v.

v.

Whitelocke's Case
Whitfield, exparte

i.

35

290.

v.

Golding

Marshall

i.

ii.

ii. 109, 418

Wheldale ii. 350,504
Whelpdale v. Cookson
i. 92
Whicherly v. Whicherly ii. 342
Whistler v. Webster i. 48. ii. 40
388
Wiley v. Pistor
ii. 301, 193
Whjsler v. Main waring
i. 320
ii. 328
Whitaker v. Rush
Wilford v. Braseley
i. 436
i. 308
Whitbread v. Brockhurst i. 302. Wilkes v.Wilkes
i. 45, 47
Wilkie v. Holmes
ii. 238
i. 124. 126
v. St. John
Wilkiiis v. Aikin
ii. 16, 17
v. Hunt
ii. 123. ii. 422
Whitchurch, exparte ii. 181, 529,
v. Ternegan i. 81, 224
530
ii. 190,193
v. Williams
v. Boris
j. 305
v. Willis
i.398. ii. 98
v. Golding
i.
162
Wilkinson v. Belcher
ii. 207
v. Hyde "
i. 140
v. Braytitld
i. 213
Whiicombe v. Whitcombe i. 56
v. Coher
ii. 170
ii. 532
White, exparte
v. Stafford ii. 125,126
v. Carter
i. 446
Willanv. Willan i. 188, 328.
v. Damon
i. 215, 287
ii. 375,412
ii. 86
v. Evans
Willats v. Cay
i. 380, 389
v. Folnambe i. 343, 348.
Williams, exparte
i.
ii. 415
77, 78.
ii. 479
Fussell
ii. 321, 440
v. Duke of Bolton
ii. 218
v Great head
1>
--._ v
i. 114, 381
ii. 297
i.
Hall
v. Child
ii. 399
i. 282
v. Hay ward
i. 483, 500
v. Lupton
ii. 302
v. Chitty
ii.108, 110
v. Coade
v. Lady Lincoln
83
v. Sansora
v. Cooke
ii. 401
i. 216, 220
ii. 267
v. Stringer
i. 216
v. Farrington
v. Taylor
v. Floyer
ii. 312
ii. 290
v. Williams
ii. 205
ii. 406v. Kinder
v. White
ii. 56
v. Lam.be i.l7l.ii.258
ii. 259
v. Wilson
v. Lane
384, 427
ii. 420
v. Longfellow
Wmtelocke v. Baker ii. 310, 318

v.

i.

fc

AMES OF

i.WWli

CASKS-

Vol. Page.

Vol. Paee.

Williams

v.
v.

Macuamara

v.

v.

Mellish
Sorrel
Springfield

v.

Williams

v.

Winyates

v.

lord Lonsdale

v.

i.

869

i.

119
411
436

i.

422

i.

ii.

ii.

inchester,Bishop

of, v. Foufriier

v.

Payne

ii.

150, 151

L421.

Knight
i.
71

v.

ii.

284

Wind

144
187

Windham

603, 538,
539, 540

ii.

\\

66, 115,

Wynne

Williamson, exparte

i.

i. 496
Clarke
v. Oodrington i. 41,
217, 326
ii. 20
Willing v. Baine
Willi ogham v. Joice i. 332, 333
v. Macintosh ii. 252
Willis, exparte
i. 431

Jekyll

v.

Win&or

v.

Hilton

v.

Winsor

v.

I.ifebury

ii.

81,

ii.

353
550

142, 143

ii.

v.

i. 301
Willoughbv i. 406,
408, 409
Williams v. Thompson
ii. 201
Wills v. Daw kins
i. 377
v. Puh
ii. 295
v. Slade
i. 200
v. Stradling
302,303

v.

Shorral

Willoughby

v.

Wilmot

v.

Woodhouse
ii.

Wilson, exparte
v.
v.

18.

i.

ii.

ii.

457
185

ii.

v. Dabbs
v. Dennison
Fielding
Foreman
v. Ginger
Grace
v. lvat
Pack

ii.
i.

373
196

313
300
v.
ii. 223
ii. 84,87
v.
i. 500
v. Pio-ott
i. 249
v.Spencer ii. 21, 22, 23

v. Lord John Townshend

ii. 40, 42, 49
Wilton, Lord De Grey, v. Saxon
i. 120, 133
Win v. Fletcher
ii. 242
Winch v. James
i. 270
v. Winchester
i. 343
Winchekea v. Earl of Norcliffe
i. 209, 518
v.

i.

ii.

'

"

Winchester, Bishop

of,
ii.

v.

Beavor

151, 200

291
ii. 91

i.

Atkinson

v.

v.

Whaley

Wood, exparte

W ood
T

v.

ii.

320
394
333
439
390
317

i.

Wilmington v. Foley
Winter v. Blount
WirdmarJ v. Kent
Wiseman v. Mason
Witts v. Campbell

i.
i.

ii.
i.

ii.

472, 507, 520,

521, 531

Downes

96, 96, 102.

i.

378

ii.

v.

Ilamerton ii. 320, 321

Penoyre ii. 14, 15, 69,

v.

Story

v.
-

70

Woodcock

Duke

v.

261

ii.

of Dorset

398

i.

11

i.254

v.

Wingfield

i.233.
38, 468

Boswell
Brownsmilh

55

Winged

ii.

Windham

v.

Woodcraft

v.

King

v.

May

v.

Kynastou
Burton

v.

i.

177.

ii.

12

Woodgate v. Fuller
Woodhouse v. Hoskins
v.

296
150

ii.

i.

258

ii.

200

i.

31)5

Shipley

23:J

i.

Woodman v. Blake
Woods v. Huntingford

i.

35

478,

i.

47!)

Woodward

v.

Gyles

King
Woolam v. Hearn
Woolaston v. Wright
-

i.

v.

33,

i.

38

181

ii.

321, 322

Woolbridge v. Hilton
Woollands v. Crowcher
389,390.

i.

147

ii.

5-30

i.

ii.

380 r
289

v, oolley v. Drag
42t;
Woolnough v. Woulnough i. 362
Wools v. Walley
SS
Woolstoncroft v. Long
254,256
Worgan v. Rvder
ii. 430
i.

i.

i.

NAMES OF

Jjtxxviii

CASES.
Vol. Page.

Vol. P;.?-.

Worge

v.

Bradley
Marlar

41-1

ii.

i. 38G. ii. 489

Worral v.
Worsat v. Marr
i. 385
Worseley v. De Mattosi. 20S,200,
433
i. 422
Wortley v. Birkhead

Wras:g, exparte
Wrayv. Williams
Wrea v. Kirton
Wren v. Kirton
Wright, exparte

v.

Atkins

v.

Bond

v.

Braine

v.

Cadogan

v.

Dannah

ii.

Hall

v.

Hunter
Mayer
Morley

408
ii.
196
ii. 380
500, 584
ii. 173
ii. 282
i.

ii.

v. Englefield
v.

575, 577

i.

i.

ii.

178

i.

373

i.335
374, 440
ii. 81
161, 190

Wych

v.

East

v.

Meal

Company

India

247
172
481
406

ii.
i.

Wydown's Case

Wynch

Wynn

ii.

Packington

v.

i.

Morgan

v.

i.249

Williams
Wynne, Dr. v. Bampton
v.

410
294
ii. 6

i.

i.

Hawkins
Lord Newborough
ii. 193,197

v.
v.

Y.
Yallop, exparte

Yate

v.

Yates

ii.

592

i.

v.

Boen

v.

Fettiplace

v.

Hambly

i.

ii.

21

72, 415, 417.

ii.

Yea

ii.

102
74
344

ii.

Yallop
Bolland
v.

151,305

v.

Fou raker

383, 385,

v.

Frere

ii.

390

v.

Yea

ii.

4-32

v.

387.391
Nutt
i.290. ii. 336
Pearson
i. 357, 440
Felling
ii. 440
Proud
i. 102

v.

Rutter

v.

v.

v.
v.

v.

i.

v.

Simpson
Wright

41
191

2,

i.
i.

434, 437.

Ill

ii.

Wrightson
Wrottesley

Hudson

v.
v.

Bendish

i.

ii.

260

ii.246"

York, Archbishop of, v.

Buildings Company

i.

i.

Mayor

of,

v.
i.

Young

v.

Peachy

91

Pilkington
136, 137, 160

Clarke

v.

19

Mac-

v.

kenzie

386, 389.

i.

ii.

v.

302

ii.

i.

i.

323

243, 245.

98
410
290

ii.

Keighly
_. v. Walter
v.

i.

77. ii.
i. 65,

261,

262, 207

Wybourne

v.

Ross

ii.

546

Zouch

v.

Woolston

i.

45

TREATISE,
Sfc.

\ LL

matters determinable by the Chancellor, in

the Court of Chancery,

may be classed under

one or other of the following heads

I.

THE COMMON LAW JURISDICTION,

II.

THE EQUITY JURISDICTION.

III.

IV.

THE STATUTORY JURISDICTION.

THE SPECIALLY DELEGATED JURISDICTION.

VOL.

I.

COMMON LAW

JTT

U ISB2CT SCN

CHA

COMMON LAW JURISDICTION OF

TJH&

CHANCELLOR.

^pHE

Chancellor

by the common law,

is,

vested with various powers.

He

is

in-

a privy

counsellor and prolocutor of the Plouse of Lords;,

as well as patron of the King's livings

value of twenty marks per

books
1

He

*.

See 38

EdwT

13Edw. 4.3.

is also,

3. 3.

annum

in

under the
the King's*

bv the common law,

and

11 Hen. 4. 80.
F, N. B. 83 K. 4to ed. It appears from the Rolls of Parliament in the time of Edw. 3.
that it had previously been
the usage for the Chancelgive all the King's
lors to
livings, taxed (by the subsidy
assessments) at twenty marks,
or under, to the clerks, tcho
were then actually cleri or
clergymen, who had long laboured in the court of Chancery ; but that the Bishop of
Lincoln, when he was chancellor, had given such livings
to his own and other clerks,
contrary to the pleasure of the
King and the ancient usage ;
andthereforeit was recommend*

a con-

ed to the King by the Counto command the Chancellor to give such livings only
to ihs clerks of Chanwy, the
Exchequer, and the other
or courts at
two benches
cil,

West minster- 1 Jail, 4 Edw.

3,

No. 51. quot. Gibson's Codex, 704.

But since the
new valuation of benefices,
or the King's books in the
lime of Henry the Eighth, and
the clerks ceased to be in orders, the Chancellor has had
the absolute disposal of all the
king's livings, even where the
presentation devolves to the
crown by lapse, of the value
of twenty pounds a year, oj
under, in the King's books. It
does not appear how thi* eu>

OF THE CHANCELLOR.

may award precepts

The Parthe peace.

pervator of the peace, and

and take recognizances

liament

Chancellor, and

kept

in

for

summoned by

is

all

by the

issued

writs

the Acts passed, are enrolled and

Chancery^^But

these matters, and the

learning respectinsfufem. are not here intended to

be treated

of,

but only.p^p parts of his

common

law jurisdiction, as have been made

the subject

of discussion before the Chancellor

the court of

These

Chancery.
kinds

I.

The Admission of

Such

who

in

consist, principally, of three

as the Cursitors

are nominated,

Chancellor

*.

common law
2.

Officers

of the Court;

and Masters

in

Chancery ,

admitted, and sworn by the

Another part of the Chancellor's

authority

is

in respect of,

Bag

Proceedings in the Petty

Office*

In this court, the Chancellor has, by the com-

mon

law, jurisdiction to hold a plea of scire facias

larked patronage was obtained by

the Chancellor, but
it
was probably by private
grant of the Crown, from a
consideration that the twenty
marks in the time of Edward
the third, were equivalent to
twenty pounds in the time of
Henry the Eighth, Gibs. 764.
1 Burn. Feci. Law, 129. quot.
3 vol.. Black. Com. p. 47. :n
note by Mr. Christian.
in Scot/and, too, at a very
early period, the Chancellor of
that country seems to have
exercised a right of presentation somewhat similar t
the
Chancellor of England; for

William
year 1309,
de Becercoles, the Scottish
Chancellor, presented a petition to the Kinsj in Parliament,
praying that he might have
the gift
of all the Kind's
churches, us former Chancel*
lurs used to have
and this
prayer was granted, as to those
benefices which did not exceed ten pounds per annum.
Ryley's Placita, 613, 14. &c.
See also Prynne, quo*. Chal-

in the

mers
im.
b

aledonia,

Vid.

&c. p. 00.

B a

Vol.

I.

p.

Judicial Authority^

COMMON LAW JUKISDICTIOW

to repeal the King's Utters patent*,

monstrans

dc droit*,

of petition.?,

of

traverses

scire

office,

upon recognizances*, executions upon

statutes, &c. which being registered in this court,
the process issued out of tlie same, and was refacias

and entered

turnable there,

the Petti/ Bag*.

All

in

the

personal

office, called

actions by- or

against any officer or minister of the court, in re-

spect of his service or attendance,

in this

court

When, however,
the

Chancellor

a demurrer

cannot

try

it,

was ordered

may do

judgment

record
is

given

to be

and

was given out of term

it

drawn up the next term \

a writ of scire facias

to repeal a charter,

joined, the record

is

is

issued out of the

upon issue being

transmitted into the

Officeof the King's Bench, and the cause

at the bar of that court

The

into

be given by the Chancellor,

can

unless in term; and where

Petty Bag

he

as

but must deliver the

",

nojudgment

When

be brought

parties proceed to issue,

the

the King's Bench, where

it

may

e.

Crown
is

jurisdiction of the Chancellor in this

being so very limited,

tried

11

Court

is

the reason, probably, that

As to pro4 Tnst. 79.

cecdings on a scire J'ucias, and
lor cancelling
a judgment

than by a scire facia* in

Chancery. [Grant v. Stone, 1
Vera. 213.] And see latch.
1 Eq. Ca. Abr 128. Cro. Car.

letters

patent,

case, 8 Co.
4

1,

s>ee

Prime's

&c

See the form ofajudgment

upon a monstrans de droit,
8 Co. 404.
*
entered
Recognizances
into in pursuance of an order of the court of Chaneery
will not be allowed
to be sued upon, otherwise

."J.

13.
'

4 Inst. 80.

2 Bac. Abr.. 13G k

"Ibid.
Ambl. 296.
k
As was the case in. Re*
gina v. Ballivos, 8cv. d Beimi-ley, 1 P. Wins. 207,
*

'

F THE CHANCELLOR.

seldom resorted

is

found

and that so

to,

the hooks respecting

in

said to be nearly obsolete

be

little is to

has been

It

it.

very important part of the Chancellor's

mon law

com-

authority respects,

The ordering or directing Writs

3.

made

to be

out

by the Cursitors,

awarded out of the

Chancery by the Chancellor; and his power, in
this respect, is defined by the common law and if
All original

wrks

are

he exceeds his authority,

such order

in

or

does not pursue

it

law has appointed, the party

as the

by exception may abate such writ m

The work

entitled Register Brevium, contains the particulars

of

the writs, nearly

all

two hundred

issued by the Chancellor; and

ably

commented

upon

it

in

number,

most

has been

by litzherbert

in

his

Natitra Brevium* which book, together with

the

commentary upon

it,

by Sir Matthew Hale, has

completely exhausted the subject.

On
court

termed

account of

its

Chancery

of
the

forge

officina justitice

times, and

thus

issuing

of writs, the

process

in

and shop of

of
all

originals",

writs issued from thence at

the fountain of justice

accessible

was

time

to the king's

subjects.

all

was always

The manner

which the business there was conducted seems

in

to be thus

the party complaining to the justices

King's courl for

of

tlu*

to

the Chancellor (in person, perhaps, originally)

1 Wood-es, Lett. 125.

Plowd. Rep. 74.

relief,

"

used to be referred

UmUud's Archoon,

p 49.

COMMON LAW JURISDICTION

and

him the nature of his injury, and

prayed some method of redress, and thereupon the
related to

Chancellor framed

a writ so as to

obtain him the

When

specific redress he wanted.

this

had been

Jong the practice, such a variety of forms had

been devised, that there seldom arose a case

much

which

it

ment

the old forms were adhered to, and

was required

to exercise

precedents of established authority in

cellor's office.

At

in

judg-

became
the Chan-

length the making of writs

be a matter of course, and the business

grew

to

very

much

was confided

to

the

Chancellor's clerks, called clerici cancellaria,

and

increasing,

it

since, cursitores cancellarice,

strict

observance

of the old forms rendered them so sacred, that in

time any alteration

of them was esteemed

an

alteration- of the law, and therefore could not be

by the Great Council; nor was it

unusual for a plaintiff, where no writ could be

done but
found

Chancery that suited

in

to Parliament for a

new one

his case, to apply

These applications were so inconvenient that

the statute of Westminster the second was passed,

(13 Edw. 1. c. 24.) by which it was provided

that, " whensoever from thenceforth in one case a
writ shall
Jike case,

quiring

be found
falling

like

in

the Chancery-, and in a

under the same

remedy,

right,

and

re-

no precedent of a writ

can be produced, the clerks of Chancery shall

agree in

forming a new one, and

if

they cannot

See Reeves's History of the English Law, 1 vol. p. 60.

CK THE CHANCr.I.LOR.
t*r;rec, it

adjourned to the next parlia-

shall be

ment, where a writ

the learned

shall

the

in

be framed by consent of

law, lest

it

happen

the

for

future that the court of our lord the kin:; be deThis

ficient in doing justice to the suitors". "

" with a

(somewhat

Blachstonc

sa\s

statute,

accuracy

little

'Chancers', and a

hastily)

the

of

the clerks

iut

lktle liberality

the judges,

in

by extending rather than narrowing the remedial

effects of the writ, miglit have effectually answered

all

purposes of a court of equity,

the

except that ofobtaining a discovery by the oath

of

defendants"

the

New

writs were

suance of

afterwards

this statute,

and attention

framed

in

pur-

but always with great care

the Chancellor, sometimes, ask-

ing the advice of the Chief Justices of both

Benches, and the Chief fiaroa of the Exche-

quer v

These original wits are returnable into the

JCing's Bench or Common Bteas^
The writs returnable into the
original

The
1.

Common

writs, as

Picas, are generally

well in real as personal actions.

writs returnable into the King's Bench,

Assizes of novel disseisin, in

(where the

bench

sits;

custodier,

Writs that suppose

2.

have quoted Sir William

p
q

Comment,

p. 50,1.

vi et

armis,

ravish latent of icard, ejection c

lllachstoue's translation of the

tut. in preference to the corninon translations ; 6ee 3 vol.

are,

same county

the

a personal wrong or force, as trespass

tjectionc

all

'208.

77.

Com. 3

vol. p. 51.

See Painenoticed,

v.
]

Sidney, Dvr
Sch. and Lcfr.

COMMON LAW

4.

rcai,

Writs

ot

All writs or suits for the king ,

1

JirtiKB vi laicd;

whether

JUIUSDICTIOS"

3.

personal, or mixt, as writs of right

quare impedit, quare non admissit, SfC

though, saith Sir Matthew Hale, some books are

contrary, and therefore this hath been ordinarily

6.

Common

the

in

Writs of replevin;

5.

Actions of conspiracy, actions upon the case,

and regularly
cept debt,

some

personal actions,

writs in

all

detinue,

covenant,

instances, writs of annuity

Some
all

Pleas;

pay a

original writs

ex-

account, and, in
1
.

king

fine to the

as

and persona]

writs in real actions, assizes, &c.

actions, as in debt.

Many of the
now employed

enumerated

writs above

proceeding

for the

in

are

not

Ejectme7it y

introduced in the reign of Henry the Seventh, has

in a great degree

tions"
is

so

occasioned the disuse of

much

so, that the writ

almost the only real action

common

use

Such

1
.

most

writs, are, for the

officers,

law

Applioriginal

executed by inferior

part,

sel-

but when they do, the Court, as

brevium, judge according to the rules of

u
.

T
Vid. " Discourse concerning the Courts of* King's

Bench and
Lord
Vol.

to

relate

before the Chancellor in Court for his

consideration
oj/icina

relating

as

and are so much of course, that they

dom come

ac-

remains in

resorted to.

still

to the Chancellor

cations

that

writs, however,

to personal actions, are

real

of quare impedit

Common

Pleas,

Chief Justice
I.

Harg. Tracts,

by

Hale."
p. 3<i0.

ll

See Booth on Real Action^;

Co. l.itt. 239. a. n. 1.
ii Black. Com.
p. 251.

liar.
l

St-e ex
Atk. 770.

pa'rte

Vennor t 3

OF THE CHANCELLOR.

Whilst Tenures remained

as

they were at the

rommon law, they occasioned much business on

the common law side of the court of Chancery.
And previous to the erection of the Court of
Wards,

of

in the reign

part of the

transacted

business
.in

Henry

the Eighth, a great

concerning wardships was

the court of Chancery

and

after

the institution of that court, and before the tak-

away of wardships from the Crown, by the

ing

statute,

12th of Charles II.) considerable busi-

ness relating to tenures remained

in

the court of

Chancery by reason of inquisitions returned

there,

and proceedings upon them v

So little is to be found in the Chancery Reports
.

respecting the exercise of the Chancellor's com-

mon law
mains

authority, that scarcely any thing re-

to be

added on

this head,

except some few

detached remarks.
1.

The writ de ventre impiciendo

common

right

though not
is

it is

found

to be

in Fitzherbert's

is

obtainable of

in the Register,

Natura Brevium, and

issued for the security of the next heir, tenant

in tail
tail,

w
,

or

or hares /actus
for life*,

to

*,

as a devisee in fee, in

guard them against

suppo-

sititious births.

The

general effect of the cases

is, that the court

has considered this as a writ for the furtherance

'

See

Judicial

Authority,

&c,

Ex
P.

3^1.

See

ex

parte

Wallop,

2 Dick. 7(7.

Wax.

parte Aiscough,

592,

S,

C,

2
Mos.

* See the
ra>es mentiontioned by Mr. Cox in note (It

to Aiscou nil's case.

COMMON

10

LATV JURISDICTION

of justice, and that

ought to issue whenever

it

the justice of the case requires

The

writ,

appears, has been issued in cases

it

but such an application of

personal estate*;

of

it

power

has been considered as a stretch of

it

If the

may

widow marry

issue

tody of the

again, yet

still

but instead of being placed

sheriff,

she

is

'.

writ

the
in

the cus-

permitted to remain with

her husband, on his entering into a recognizance

remove from

that she should not

his house,

and

some of the women returned by the sheriff

should see her every day, and three or more be
that

present at her delivery

The

first

writ

see whether the

paritura; and

she

if

issued on these occasions

widow be with

d
;

where the

sheriff

but the court has held

occasion to execute the writ

ner, provided

time, free

people of

access

A supplicavit

court,

Ex

upon

Pleas,

(where the

to

keep her safe-

that there
in that strict

is

no

man-

have, from time to

widow, and might be

has often been granted by the

filed

parte Wallop, 4 Bro.

is

articles

C. C. 98.
* See case
cited
in
p. 391.
b
Co. Lit. 8 b n. 3.
c
Cro. Jac. 685.

skill

to the

present at the birth

II.

and quwndo

returnable,) to a castle (so are the old au-

thorities),
ly

to

removed by a second writ

Common

issuing out of the

first is

child,

is

the jury find her with child, then

(in strictness)

is

on oath,
d

Cro. Jac. 685, C.

See ex parte Aiscough,
2 P. Wnis. 594.
f
As to this writ, see F.
N. B. 183.
e

Mos.

(an afrirma-

Or THE CHANCELLOR.

do

not

tion will

11

of assault and battery, and

,)

that the party goes in tear of his

life

but

lat-

seems, the writ has been refused, and

the party grieved directed to apply to the justices of
terly,

it

the peace h .

exceptions

In a very early case (in 1631) where

were taken to

the articles as being-

too general, and production of a certificate of good

behaviour, the Court referred

two justices

to

it

of the peace to examine the truth of the articles

and that the question of the suppliThe

cavit should be stayed in the mean time \
k
Court, it seems, uses a discretion on thesubject
and

certificate,

but

general, the Court of Chancery and

in

also

the King's Bench, in case of articles of the peace,

at the

end of

a year,

if

nothing

new happens,

dis-

charge a party committed for want of finding sure-

Sometimes the security

ties'.

and the master

is

of the

the

abilities

will

not discharge

denying the
affidavit

facts,

but

vance appear,

ed

is

lessened'",

directed not to be strict as to

sureties"

but the

a supplicavit on an
for

it

where

will

not

try

combination

court

affidavit

them on

or

contri-

the supplicavit will be discharg-

III.

With

respect to the Writ of Certiorari

t
Ex parte Crumblcton,
2 At k. 70.
h
2 P.
Wavering's csfce,
Wins. "i02. As to the uutli-

of justices of the peact in

cases, bec F. N. B. i&7.
v.
fiatman,
1
Snelley
Dick. 0.

rity

Bat/num
Ambl. 64.
'

334.

Ex

parte King,

Ambl.

',

it

Lui/iuim,

" Id. ibid.

"
Kx parte Sir R, Grosvenor, 3 P. Wms. 11-J.

Ex

tlu-.-c
'

v.

parte

2-10. S. C.

Kiug Ambl.
57&
a

2 Vera.

Fov the general doctrine

as to a writ of certiorari, see
'

F. N. 13.518.

COMMOK LAW JURISDICTION

12

has been holden,

Court of record,

it

where

that

issuing either out of the

in a

a certiorari,

Court of King's Bench,

Court of Chancery

or the

a replevin is

may be removed by
<l

Where

certiorari

issues with a view to use the record as evidence,

the tenor,

returned,

if

tervails the plea of

record

is

to

nul

tiel

record

the proceeding upon

removed, whether
for in

but when the

be proceeded upon, the record

must be returned"; and there

when

and coun-

sufficient,

is

it

itself

no difference

is

the record

is

to be

be before judgment, or

both cases the record

after,

must be remov-

itself

ed

IV. As to Writs of Prohibition*,

termined that,
for a matter

if

one be sued,

out of

its

it

has been de-

in an inferior court,

jurisdiction, the defendant

either have a prohibition from one of the com-

may
mon law courts of Westminster-hall, or, as this
may happen in a vacation when only the Chancery
is open, that Court may be moved for a prohibiupon

tion",

the

fact

a petition',

arose

out

of

and

affidavit

But

if it

WoodB. 554.
N.
Kinaston, 2 Atk. :j17.
8. C. 1 Dick. 2:j3.
1
a.
2
13. 548, n.
F.
Atk. 318.

craft

v.

Kinasv.
Woodcraft
2 Atk. 318. Sarki 117.

ton,
1

The coctrine

writs
set forth at
as to

of prohibition is
large in F. N. B. 03. &c.

out of the jurisv.

Hurris, 7 Yes.

254.
v

See

Atk.

51(5.

Hill

v.

Turner, 1

Newhouse

Mil-

v.

bank, 1 Vein. 276.

Walker

'

v.

Fanderheide,

Dick. 330.
x

505.

is

Iveson

"

which

appears on the face of

the declaration, that the matter

^

and

the jurisdiction,

that the defendant tendered a foreign plea,

was refused".

that

Ik-

Wms,

-:><J

Anon.

I.

470, 7.; but .st*e, on this

subject, Iveson v. Harris, 7
Yes. 251.

OF THE CHANCELLOR.
diction of

13

court, then a prohibition will he

tlic

granted without an oath of having tendered the

foreign plea

y
.

prohibition does not

an inferior court

has pleaded

the defendant

after

lie to

there

for,

by

pleading-, the defendant submits to the jurisdic-

lies,

at the instance of the king a prohibition

But

tion.

If a pro-

though the defendant has pleaded.

hibition has been granted, the court will issue a

supersedeas, if there is ah

affidavit that the

z

arose within the jurisdiction

If a prohibition has

cause

been granted by the court of

Chancery impromdt, the court

will grant a super-

must obey the

writ, whether improperly issued or not it has no
b
discretion; to disobey it would be a contempt .
The Spiritual Court has jurisdiction over Grammar Schools but in a case where the libel was for
teaching schools generally, without saying what

sedeas

11

but the

inferior court

school, the Chancellor granted a prohibition

So,

if

c
.

the Spiritual Court has granted admini-

wrong person,

stration to a

resort

may be had

in

vacation time to the Chancellor, for a prohibition,

returnable

into the King's

Bench

or

Common

Pleas*.

Court of Prize, or other inferior court, misconstrue their jurisdiction, it is, it seems, a ground
If a

of prohibition
r

"

'
;

but where a question

1 P. Wms. 470.
Anon. 1 Vera. 301.
1 P. Wuis. 470.
Iveson
v.
Harris,

Yes. 254, 5.
c
Cox's case,
29,

P.

Wms.

incidental

Blackboroitgh

Wms.

v.

Davis,

43.
'
Arg. in the case of the
Danish ship Noysomhed, 7
Yes. 595.

is

P.

COMMON LAW JURISDICTION

14

principal question,

the

to

Court of Prize ha*

jurisdiction, and a prohibition will not be grantf

ed

V. The

teste

corporations,

of original writs against hundreds,

heirs,

and

But

writs

same day

cursitors, the

by the practice of the

the writs are bespoke s
is,

all

several other cases,

in

it is

not so with

and where a capias was taken out on

the 31st of January, and the original

on which

was founded made out on the same day, but

it

on

tested

the

common
and the

preceding

teste-day

6th

of October, the

Michaelmas

before

n*n assumpsit

and then moved

infra sex unnos,

that the teste of the writ might

made
fused

Term,

defendant pleaded noti assumpsit, and

be altered and

the motion

the 31st of January,

was

re-

h
.

VI. Writs of error are due of right, in all cases*

except treason and felony
and writs of error
in criminal cases, will be ordered to be sealed,
'

provided they are

A Horn cy

first

General k

signed and allowed by the

VII. The Chancellor will not order ^mandatory

writ to the

Chief Justice of the King's Bench

sign a hill of exceptions,

though such

issued to a judge of an inferior

of the Sheriff's Court in

f
Case
of the Danish
ship Nousomhcd, 7 Ves. 593.

&e.
h

Price
1 P.

v.

Wms.

Robinson

Hundreds

437.
v.
Stevenson,

Ambl. 375.
2 Sal k. 504.
4

of,

London
k

court,
',

a writ

to

has

the judge

for instance.

Craule v. Craw'e,
170 and see what

Vern.

1
is

the Rioter s case, \

Vein. 176. 3 Mod. 42. Sid. (59,
Ld. Kaym. 154.

said

'

in

The

Vera. 175.

Rioters'

case, I

OF THE CHANCELLOR.

An

VIII.

15

on petition, be allowed

original, will

to be filed, after a writ of error

brought to reverse a

judgment, where the omission proceeds from the

mistake or
it

arises

from the ignorance of the clerk

excuses have been admitted

has been

also,

but not where

illness of the attorney,

elapsed

far

must be commenced within a

and where the time had been so

that the

as

had been a bar,

versed

for a robbery,

suit

time

limited

if

of limitations

statute

the judgment should

be

re-

IX.

has been said that after a writ has once

It

issued,

de

is

it

officio,

thing further to do in

and the Chancellor has noit p

But

this doctrine

not seem warranted by the cases.

admitted that the Chancellor

before

Slender

given in cases of quare impedit,

and inactions against the hundred

where the

ra

Such permission,

11

it is

returned*

seems to be

It

may quash

but not after

does

a writ

nor before

it is

returned, unless error appears on the face of

it*

and even then the properest way,

would be by
turnable

plea in -the court

where

it

it

seems,

was

re-

1
.

though returned, may on application

be superseded by the Chancellor

But

a writ

Anonymous,

1 P.

Wms.

411.
n

Anonymous, 3

P.

Wms.

314.

IP.

Wms.

412.

and

see

3 Lev. 347.
p

Osjver
59.

v.

Anonymous,

Atk.

'

Weaver's

Hay ward, 3 Atk.

Rex

Haywood.

Ambl.

237.

Ex parte Little, 3 Atk.

479. and see King v. Fowler.
Sal k. 293. and Trebec v. Keith
2 Atk. 498.

v.

\Vms 435.

Burrard,

P.

Lessee

Murray,

Company

y.

3G3.

of
Lawlor v.
Sch. and Left. 76.

COMMON LAW

16

An

JUIUSDICT 10>f

executrix, in custody under a Writ de exx

communicato capiendo

by a creditor

citation

moved

but

And

an inventory,

the court refused to su-

followed of course

it

significavit*.

a supersedeas to a writ

De

excommunicato

though

has been denied,

capiendo

was general and uncertain

cavit

disputing the debt upon

persede the writ, and said,

upon the

appearing to

to exhibit

for a supersedeas,

equitable grounds

not

for

proceed being by habeas corpus

the

method

the
;

signiji-

to

but where an

appeal was brought, a supersedeas has been grant-

ed

".

Jfa cursitor
the

writ

of an

alters the return

a

be superseded

will

unless

it is

resealed

for

Ad

verbal,

may be superseded by

the

Chancellor, quia improvide emanavit

writ of

only

writ of error

is

it

and

altered as to mistakes merely literal

and

original,

quod damnum has been quashed

insufficiency in

the

equivalent required

d
,

and has been set aside for surprize in the execution of

it '.

According
cases

where

See as to

Edward Coke
in all those
man is excommunicated by the
f

to Sir
a

this

writ,

F.

The

Kinr;

v.

Blatch,

Rex

Smith

v. Sneller, 1

v.

Wilmer, 3 Atk,

Dean of Dublin, &c.

Dowgate,

5 Ves. 113.
a

505.

\. B. 144.

Vem.

24.

294.

nbtd. p. 000.

700.

v.

W. 351.

Exparte Armitajje, Atnbl,

Company v.
Weaver's
Hay ward, 3 Atk. 302. and see

1 P.

Exparte

12Co. 67.

tion."

Vernier,

3 Atk.

Prohibi-

title

OF THE CHANCELLOR.

Bishop against law, he

Chancery directed

commanding him

*'.

to patents,

on an application

that

have a writ out of

shall

to the Bishop,

him
X. With respect

to assail

17

has been holden

it

Lord Chancellor

to the

to

withhold the Great Seal from a patent, he will only

consider whether

it is

Crown ought

ther the

or ousrht not to grant

but there are three stages

posed
his

While

1st,

is

it

and not whe-

legal or not,

in

which

it

it

''

may be op-

under the consideration of

When it comes to the Privy

When it comes to the Great Seal

Majesty; 2d,

Seal ;and 3d,

Since the union of Great Britain and Ireland

the Great Seals are kept distinct for patents

The Chancellor

will not sign

k
.

a patent for a

which does not put the parties under

some controiil, even though there should be no
and the Court has expressed
caveat against it
theatre,

cautious

itself as

how

a patent for a grant of

may
It

it

affixes the

Warden of

Great Seal to

the Fleet, as

it

occasion a general escape of the prisoners"

has been holden, also, that after a patent has

passed the Great

Seal, the time

for

enrolment

cannot be enlarged without an act of parliament"

however,

if,

mistake,

the

new

enrolment was

by

7 EtUv. 4.

14. Boraine's

Caae,16Ves.346.
" Ex parte Ualv, Vern.
Scriv.499.

'lb.
Oxford

Universities

&

'

v.

Cambridge

I,

v
parte O'Reilev, 1 Ves.

Leighton's

case,

2 Vern. 174.
n

and

Ex

jun,113.
m Col.

599.

Richardson,

Ves. 70-).

VOL.

delayed

patent might be obtained, and

Ex

parte

Koops, G Ve>.

COMMON LAW JURISDICTION"

IS

induced

the officers, probably,

fees

remit

to

their

XI. Coroners may be removed by the Chancelmisbehave or live out of the

lor, where they
county; but

as theirs is an office of freehold, the

court will not,

when

last place

coroner

is

coronatore exone-

an affidavit of service at the

of his abode

extend so

the court

De

to issue

way, order a writ

rando, until there

the Coroner goes out of the

nor does the authority of

to appoint

far as

another

but the choice of the new one must be

by a majority of freeholders p
XII. A writ of R ep levin q may be obtained, not
merely where there has been a distress, as is generally imagined, but in all cases where a person
.

takes goods out of the possession of the person

who

upon his giving security,

appear whether the goods are right-

applies for the writ,

until

it

shall

fully taken

but

if

A. be in possession of goods

which B. claims

in

a property, Replevin

the proper writ to try that right

The court

will

not,

it

on motion, supersede a
is

made

s
.

XIIL A writ De caufione admittanda}

allowed to issue, unless

not

writ of Replevin, unless a fraudulent use

of

is

Ex

parte

Beck,

Bro.

C. C. 578.
* 3 Atk. 184.
q For
the doctrine as to a
writ of Replevin, see F. N. B.
155.
In re. Wilson, 1 Schoales
I

it

will not

be

appears upon affidavit,

and

Lefr. 321.

320. Shannon
327.
s

v.

Shannon,

ib.

Anon. 2 Atk. 237.

l

JV.

Ex parte
Sch. and Lefr.

n.

Cham berlai ne, 1

See as
B. 144.

to

this writ, F.

OF

CHANCELLOR.

TIIC

Bishop has

that the

refused

If)

admit of cau-

to

tion".

XIV. The

writ

Dc

homine replegiando

original, suable of right,

and returnable

may

join

suing out

in

supersedeable
plead fo

wife,

has

it

Two

writ

this

Chancery

in

in the

it,

on petition or motion,

a court of law".

in

an

is

persons

It

not

is

but the party must

court where

returnable

it is

*.

been determined, cannot obtain

this writ against her

husband

a
.

XV. The writ of Melius inquirendo is another of

common law writs issued by the Chancellor,

the

and noticed

In regard to this writ,

a

if

person

is

office

conclusive on

a Melius inquirendum

may

b
.

has been holden that,

it

found by

is

alien, this is not

the party

Natura Brevium

in Fitzherbert's

issue

an

not to be

Crown, but
upon which, if

the
;

again found not to be an alien,

Crown is bound
XVI. Writs of Ne

the

tion, writs

exeat regno, writs of Injunc-

of Certiorari, and by

way

of process,

enforcement of process, will be else-

or for the

where considered.

XVII. It has been observed in an able controversial work d said to be composed by Mr. Yorke,
,

Earl of Hardwicke e ),

(afterwards

Archbishop of York v.
,
I Vera. 119.
Treblecock's case, 1 Atk.

C33.
y
1

F. N. B. 66. F.
1 Atk. 683.

Atwood

3. c. 13.

and

see

&

3 Edw.

0.

c
Duplessis, 2
Exparte
Ves. 538. &c. and p. 555.
* Judicial authority of the
Master of the Rolls, p.* 83.
e

See

Bishop Hurd's

of Warburton,
;

is

c. 8.

Atwood, Free.

v.

Ch. 492.
P. 572.

Edw.

that there

36
C 2

Life

COMMON LAW JURISDICTION

20

no one species of
on the

common

all

the judicial acts performed

law side of the court of Chancery,

of which there are not instances of their being

also

performed

by the Master of the

but this has been a matter of

and

it

has been as positively

much
said,

to be the better opinion, that

the

Rolls

controversy,

and

it

seems

Master of the

Rolls has no original jurisdiction respecting matters arising

on the

of Chancery

The view,

mon

common

law side of the court

f
.

thus taken, of the Chancellor's com-

law jurisdiction

is

necessarily very

limited

being, as before observed, confined to such parts

of

it

have come into discussion

as

of Chancery.
ticularize

Lloyd

It

and describe

v.

Scott,

in the court

would require a volume,

it,

2 Dick.

570. See also, History of the

to par-

in its full extent.

Chancery, and Legal Judica.

ture, &c.

OF THE CHANCELLOR.

CHAP.

21

II.

EQUITY JURISDICTION OF THE CHANCELLOR.

TJY

generality of

the

the

older

writers,

Equity Jurisdiction of the Chancellor

but by the word Accident,

mean, when a case

is

de-

Fraud, Trust and Ac-

scribed under three heads

cident

is

the

they

usually

distinguished from

others

of the like nature by unusual circumstances

It will,

der the

however, be more convenient to consi-

Equity

(except what

be

of the Chancellor

under

of hereafter)

treated

heads

Jurisdiction

relates to the Practice,

the

which

will

following

Accident and Mistake.

2.

Account.

3.

Fraud.

4.

Infants.

5.

Specific

Performance of Agreements.

6. Trusts.

According, even to this enlarged classification

of the subject,

it

may

not

be very obvious

how

the great multiplicity of doctrines arising out of

the Equity Jurisdiction, can be included; but on

consulting the divisions and subdivisions of each

head,

it

will

be found,

that,

without any very

arbitrary classification, they include every branch

of Equity.

See Lucas,

1. 3.

Prec. Ch. 2.1],

EQUITY JURISDICTION.

I.

Accident and Mistake.

not under the very extended signification

It is

of the term, Accident, before alluded

subject

now

is

according to

intended to be treated
ordinary

its

to,

that the

of,

but only

and more restrained

sense.

The Jurisdiction

of the Chancellor in cases of

Accidents has been long established

have been relieved against

to

VI I. and from
c

Student,
ports'

':

they appear

in the reign
s

of Henry

Book, Doctor and

from Sir George Cary's Re-

as

appears, they continued to be relieved

it

the

against in
tainly,

Germain

St.

as well

succeeding reign, and now, cer-

form an acknowledged branch of Equity

Relief.

Where a Bond is lost, (unless it be a voluntary

Bond%) relief will be given in Equity' ; but no
and the
relief is given there., upon a lost note s
:

reason

that at law, the party could not recover

is,

without a

profert,

and giving oyer of the bond

but profert and oyer was not necessary

at law

East

upon
India

d
c

Company

v.

Pasch. 7 Hen. VII.

p. 12.

P. 2.

Underwood v.Slaney,

Ch.

Cas, 77.
f

Toulmin

Mobsop

v.

to recover

41.; but see what is said in

Toulmin v. Price, 5 Ves. 238.
and Walmesley and Child, 1
Ves. 34). By 9 and 10 Win.
s. 8. relief was given
law in the case of a lost
Bill of Exchange.
h
See 1 Ves. 393. and 2 Ves.

3. c. 17.

at
v.

Price,

5 Ves.

238.

Eadon,
16
and see Glynn
Bank of England, 2 Ve>.

Ves. 430.;

a lost note': proving of the contents

Boddum, 9 Ves. 466.

c

v.

41.

Walmesley v. Child, 1 Ves.

345. and see Glynn v. Bank
'

ACCIDENT AND MISTAKE.

being sufficient, and nothing standing in the plain-

And

tiff's

way.

Law,

in the case of a lost

though, of late years, Courts of

with a profert and oycr

first

Bond have dispensed

,a doctrine, which when

broached, seems to have startled Lord Hard-

wicke

and has excited

quent Judges

m
;

had jurisdiction, they

though the

much

original

on retaining

still insist

Court of Equity

Law, no longer

also set

and

it.

this,

exists".

will not only give relief

againstthe Principal,, where a bond

or cancelled

it,

ground of the Jurisdiction,

the inability to recover at

surprize in subse-

yet Courts of Equity having once

is lost

burnt,

by accident or mistake, but will

up against a surety in such Bond p

though the Principal be out of the Ju-

risdiction of the

Court ^ So, where a Rent-charge

granted by deed, and the deed happens to be

is

lost, a

copy cannot be read

in

evidence at law

because the party must declare with

in curia, as the defendant is entitled

the original

up

so that the plaintiff

a profert hie

to oyer of

must

either set

a prescriptive title to the Rent, from a con-

of England, 2 Ves. 41. and

Snellgrove v. Bailey, 3 Atk.
214.
k
See Read v. Brookman, 3
T. R. 151. Hendy v. Stephenson, 10 East 55. ^ee also, as to
a burnt bond, Routledge v.
Barrel, 1 H. Black. 254. totty
v. Nesbit, 3 T. R. 153.
See Whitfield v. Faussett,
1 Ves. 389. &c. and what he
1

had previously said

in

2 Atk.

61.

m See what

is said Exparte
Greenway,
Ves. 812, S13.
and in East India Company v.
Boddam, 9 Ves. 404.

See

what Lord Thurlow

says in Atkinson and Leonard,

3 Bro. 218. and see East India

Company v. Hoddam, 9 Ves.

464. &c, Bromley v. Holland,
7 Ves. 19.
"East India Company v.
Boddam, 9 Ves. 464. the ease
of* a
lost bond
see Fickering v. Keeling, 1 Ch. Rep.
78. Bonnain v. Newcombe, 2
Ventr. 305. Lee v. Sir Robert
Henley, 1 Vera. 37.
''Skip v. Huey, 3 Atk. 93.
the case of a burnt bond,
" East India Co. v. Boddam,
9 Ves. 404.
;

EQUITY JURISDICTION.

21

he must

and uninterrupted payment, or

stant

be relieved against the accident of

brincr a bill to

the original's being lost \

The Court, however,

to prevent fraud, has in

the cases of lost securities, prescribed conditions,

on which they administer

Deed

If a

mand

arises,

relief.

upon which the

or Instrument,
is lost,

and only a discovery

unnecessary

affidavit of the loss is

an

man would

cannot be supposed a
only

but
e.

relief

bring a Bill

beyond the discovery,

or the
payment of the debt
1

re-execution of a lost deed

must be annexed

loss

for it

prayed

is

have

to

g.

sought,

discovery of a deed he was possessed of;

for a
if

is

de-

title

an affidavit of the

and the want of

be a Q-round of demurrer
cerns the

",

If the

of lands, and possession

to be established, such affidavit

it,

deed

would

lost conis

prayed

must be annexed.

So, on the loss of a Bond, and a Bill

filed, in

con-

sequence, to be paid the amount, a Bill of Disco-

very
the
v

not sufficient

is

money

but

it

thereon, and an

must

be, to be

affidavit

paid

must be

an-

nexed*.

And,

it

a Trial at
insists

seems, that in cases of this description,

Law

upon

it y .

2 Atk. 01.
Whitworth and (Moulding,
1 Eq. Abr. 14. & C. 2 P. Wms.
s

p. 541. Godfrey v. 'turner, 1

Vera. 247. 1 Ch. Cos. 11.
Anon. 1 Vern. 180. Prec. Ch.
536.: the case contra, 1 Vern,
59. seems a mistake.
1
1 Vern. 217. 1 Cha. Cas.

231. Whitchurch
P. Wins, 541.

Defendant

will be directed, if the

v.

Golding,

Rootham

Anst. 859.
w
Nicholson
Vern. 31(1.
*

Walmesley

v.

v.

v.

Dawson,

15

Pattison,

Child, 1 Ves.

Teresey v.
Gory,
344,5.
Finch, 301. Anon. 2 Freem.
71.
y Clavering
Clavering-.
v.
2 Ves. 233,

ACCIDENT AND MISTAKE.

It

appears to be upon the principle of relieving

by loss of deeds, that grants

presumed or supplied. Where,

against accidents,
are, in

many

cases,

been in possession

a person has

therefore,

for a

great length of time without interruption, Equity

will

supply

those circumstances,

all

ceremonies, which the

Law deems

necessary to the

operation of the original conveyance

as Livery,

&c. and will not allow such posses-

a Surrender

or formal

sion to be disturbed

So, where rent has been paid

twenty years, Equity will presume a grant b

Common

where

years,

Equity

been inclosed

has

will

presume

and

man

is

intitled

the remedy

length of time

very

difficult,

has interfered and given

which

bills

are called Bills

solet.

The Court
where

a rent out of

law

and from

is

lost,

or

upon the founda-

rent for a long time,

founded

has even gone so

upon the

far, as to

give

the nature of the rent, as there are

at law,

be set forth

to

at

relief,

payment of the

many kinds

to

the Court of Chancery

tion only of

relief,

persons inter-

thrown open

Quit Rents*

lands, as Chief Rents*, or

become

all

will not allow it to be

And where

for thirty

the Inclosure to

have been with the consent of

ested,

And

has not been known,

but then

all

so as

the terre-tenants of

the lands, out of which the rent issues, must be

7

Lyford

Coward,

v.

Vern.

105.
'

Ibid.

Steward
516.
c

Silway

v.

v.

Bridger,2Vern.

Corapton, 1 Vern.

32.
d

Duke

of

Sir Francis

P. C. 368.

Bridgwater v.
Edwards, (} Bro.
Tomans' Ed. and

Eton College v.
Beauchamp, 1 Ch. Cas. 121. 1 Eq.
Abr. 32(B) and 3C4.
e
Holder v. Chamburgh, 3
P. Wms. 257; but see North v.
see

Earl of Stratford, 3 P. Wms.

148. Duke of Leeds against
New Radnor, 2 Bro. C. C. 3-40.
and 51 S.

EQUITYJUIUSDICTION.

2(5

brought before the Court, the better to enable

make

to

a compleat decree

So, where there

remedy

at

to distrain,
also,

Law,

it

no

a clear right to rent, but

is

no demesne Lands on which

as

Equity will give

relief 5

as

will

it

where, from a confusion of Boundaries, no

1

Land can be found for a distress'

On the same ground, of accident, a Lord of
a Manor may file a Bill for a Commission to distinguish Copyhold Lands withia the Manor from
Freehold, and compounded from uncompounded
.

Copyholds, and to ascertain the boundaries

and

they cannot be distinguished, to set ou: Lands

of the Tenant of equal value with so much of the

if

Copyhold Lands

And

as

though, in

cannot be distinguished
of Bills

cases

Boundaries, the interest of one party

to
is

ascertain

more

in-

considerable than the interest of another, yet they

must equally bear the expence of a Commission

to settle Boundaries, and the separating of Freek
hold and Copyhold Land
.

Equity
is

it

relieves against penalties,

and originally,

on the ground of accident.

instance, against non-payment of

apprehended,

It relieves, for

money

at a certain

day

',

as in the

common

case of

a bond for the payment of money, or of a Mortgage,

where the Title of the Mortgagee has become abso-

Law.

lute at
f

Benson

v.

It relieves also against forfeitures

Baldwyn,

Atk.

598. and see Bouverie against

Prentice, 1 Bro. C. C. 200.
6 Duke of Leeds v.
Powell,
1 Ves. 171.
h
4

lb.

172.

Duke

Strafford,

of Leeds v. Earl of
4 Vcs. 180.

of

Norris v. Le Neve, 3 Atk.

83.

See Grimstone v. Lord

Bruce, 2 Vern. 594. Sir Henry
'

Peachy and Duke of Somer1 Str, 453. Sloman v.

Walter, 1 Bro. C. C.418.
set,

ACCIDENT AND MISTAKE.

Relief, however,

copyholds.

is

dispensed only in

those cases where the Court can do

the other party

him

into as

for,

good

seems,

it

27

with safety to

it

if

it

cannot put

a condition as if the

agreement

had been performed, the Court will not relieve m

It will

only relieve where the thing

afterwards* or a compensation

may

made for

be done

but un-

it ";

compensation can be given, so as to put

less a full

the party precisely in the

same

situation, a

Court

of Equity will not interfere; for such a Jurisdic-

would be

tion

irbitrary

ceptions to this rule

tain,

and

one of which

voluntary composition

There are some ex-

the voluntary bounty of the

complied with

Where a

it is

creditor to remit

must be

strictly

inserted merely to

secure

part of the debt, and the terms

p

where a
time cer-

In such case,

manner.

in a certain

is,

to be paid at a

is

penalty

is

the enjoyment of a collateral object, the enjoy-

ment

of the object

considered as the principal

is

intent of the Deed, and the penalty only as accessional,

and therefore only to secure the damage

really incurred

of the bond

is

and

sued

will be granted,

for

and an

Jicatus will be directed*

m Rose
n

Cage

v.

such cases,

in

at law,

issue,

if

the penalty

an injunction

quantum

danuii-

1
.

Rose, Ambl'. 332.

Russell, 2 Ventr.
352. Descartott v. Denaet,
9 Mod. 22. Davis v. West, 12
Ves. 475. and see Wadeson v.
Caloraft, 10 Ves. 67. Hill and
Barclay. 18 Ves. 63.
" Sanders
v. Pope, 12 Ves.
v.

291. WafVrv.Moccato, 9 Mod.

112, 113.

ler,

Rose against Rose, Am332.; and see 8ewell v.

Masson, 1 Vera. 210. 1 Ch.

Cas.
110. Exparte Bennet,
2 Atk. 527. Leigh v. Barry,
3 Atk. 585. Mackenzie v. MacJO Ves. 37'2.
against
1 Bro. C. C. 418.
kensie.
q

Sloman

Walter,

EQUITY JURISDICTION.

28

been

It has

be a mortgage at

said, that if there

5 per cent, with a condition to take 4 per cent,

if regularly

paid

or a mortgage at 4 per cent,

to have 5 per cent,

5 per cent,

not regularly paid,

if

regarded in Equity only as

is

to secure the 4 per cent.

penalty

a.

and the party

lieved from paying the 5 per cent,

the

is

re-

by paying the

4 per cent, and putting the other party in the same

condition as
that

the 4 per cent, had been paid

if

by paying him

is,

cent, as

if it

position, however, in

upon the 4 per

Interest

had been received

its

at the time

full

5
.

This

extent, does not

seem warranted by, the authorities; and the rule

rather appears to
lent

on mortgage

have been,
at

that if

money be

4 per cent, Interest, but

if

not punctually paid, then to pay Interest at the

rate of 5 per cent, a

Court of Equity

will consi-

der the 5 percent, but asnonmie poena,

lieve \

unless there

where Interest

Interest"; but

per cent, and

cepted, and

will not relieve

is
x

of a penalty

Where

reserved at 5

is

not punctually paid, the Court

because

this latter

though substantially the same,

y

re-

duly paid, 4 per cent, to be ac-

if

it

and

has been a long arrear of

is

agreement,

not in the form

Bond was given

for the

performance

of covenants to build a bridge, which, from circum8

Seton v. Slade, 7 Ves.

273,4.
'Holies v. Vyse, 2 Vern.
290. Strode v. Parker, 2 Vern.
316.
u

Brown

Wms.
x

v.

Barkham, IP.

652.
Vern. 290. Hallifax and

Higgins, 2 Vera. 134. Strode

and Parker, ib. 316. Jory v.
Cox, Prec. Ch. 160. Nicholls
v. Maynard, 3 Atk. 520. 3 Bl.
Cemm. 432.
y See
Arg. 2 vol. Hargr.
Jurisconsult.
218.

Exercitations,

ACCIDENT AND MISTAKE.

became impracticable, and the sum agreed

stances
for,

29

was granted

actually paid, an Injunction

to

on the bond, and an Issue, Quan-

restrain an action

sum mention-

tum Damni/icatus, was ordered, the

ed in the Bond being considered as a Penalty 1 .

The

of Covenants

construction

Equity

as at

the same in

is

Law, but the performance of them

is

considered very differently in Courts of'Law and

Equity.

At Law,

literally

performed

it

Covenant must be

in

Equity

',

is

it

strictly

and

sufficient if

be really and substantially performed according

and meaning of the

to the true intent

circumstances will admit

far as

avoidable accident,

if

by

fraud,

parties, so

but

by

if

by un-

surprize,

or

ignorance, not wilful, parties have been prevented

from executing
interfere

the party

it

literally,

a Court of Equity will

and upon compensation being made,

having done every thing in his power,

and being prevented, by the means alluded

give

relief.

to, will

This doctrine was formerly carried

to a length that

became

in

some degree alarming

terms and conditions of Covenants having been

construed, as only

in

times that has been

now

terrorem; but in modern

much

restrained

perfectly understood that even in

chase of an estate,

if

money

it

is

the pur-

has been covenanted

to be paid at a given day, if

day, at law, an action will lie

and

it is
;

but

not paid at the

if

the partv can

shew, that he took the means of paying it, and has

been prevented by accidents not

J

in his

power, the

Errington against Ayuesly, 2 Bro. C. C. 341,

EQUITY JURISDICTION.

30

Court

will dispense

with the

of

because, as

was formerly

it

it

the essence of the contract

essence of the

contract

performance

strict

said,

but

it

is

it

m ay

not of

be of the

and the party cannot

avail himself of equitable circumstances, unless

he

shews that there has been no wilful neglect or

misconduct on hispart\

Lord Stanhopes

In a case where, previous to

Act, a tender was made, in

Bank Notes,

of Rent

secured by covenant, and from pique was refused,

and payment

made

a Bill

procuring
;

Coin insisted upon, and a distress

was

filed for relief,

on the ground of

scarcity of Coin, and the difficulty of

the great

time

in

it,

and

for

an Injunction in the mean

but the Master of the Rolls, (Sir William

Grant)

the Chancellor, refused the

sitting for

Injunction, because he thought the Party could

not be relieved against his covenant, and that to
relieve

thority

him would be

to

assume a

legislative au-

Where

a Lease for Life, or for Years,

upon a condition of Re-entry

or that the Lease shall be
assigns

or aliens

it

void,

if

the Lessee

this

and such a Forfeiture against which

knovnwhat

shall

a
Eiton
G92, 3.
c
Bra; v.

Lyon,

June 1612. MSS,

after-

without Licence,

it

the court willnot relieve, because, it is said, it

v.

made

a Forfeiture,

without Licence, and,

wards, the Lessee assign

is a forfeiture,

for

is

is

un-

be the measure of the damages

3 Bio.

Wafer

v,

112. quot.

~, Seal, 25th

e
.

Moccato, 9 Mod.
by Lord Chan, in

Sanders v. Pope,

ACCIDENT AND MISTAKE,

after

If,

31

such a covenant, the Lessee dies indebted,

and his Executors

the Lease for

sell

payment of

the debts, Equity will, in favor of creditors, relieve

f

against the Forfeiture

But though
lieve against a

many

the Court does in

cases re-

Breach of Covenant, yet there

is

no

branch of the Jurisdiction of the Court more

delicate than that
right

e
y

diction

and

it

which goes

to restrain a legal

has been termed a dangerous Juris-

''.

In cases of a contract by Lease to pay Rent,

with a Covenant and clause of Re-entry on non-

payment,

Court of Equity

will

relieve

the

Tenant on payment of the Rent, with Interest

and allExpences, (an inadequate
not

let

Relief,)

him be turned out of Possession

such cases
that the loss

it is

is

and will

',

for

in

said (not convincingly perhaps)

certain,

and may be recompensed

by damages.
So, relief has been given against a Forfeiture,

and a right of Re-entry, incurred by not laying

out, according to covenant, a specific

pairs,'m a given time

Tenant had omitted

And

to

'

in re-

where the

keep the Premises in Re-

1 Ch. Cas. 170.

See Sanders v. Pope,12 Ves.
289.
h
Hill v. Barclay, 10 Ves.
406.
Francis's Max. in Equity,
Sanders v. Pope, 12 Ves. 289.
and see Davis v. West, 12 Ves.
475. Descartott v. Dennett,
9 Mod. 22. Hill and Barclay,
'

in a case

sum

18 Ves. 58. 59. GO. and see

Taylor v. Knight, Vin. Abr.
tit.
Chancery, (V.) Ca. 31.
The same Relief may be
had at Law under the Stat. 4
G. 2. c. 28. s. 23, 4.
k
Sanders v. Pope, 12 Ves.
282. and see Brown and Quilter, Anibl, 619.

EQUITY JURISDICTION.

32
as he

pair,

had covenanted to do, and an Eject-

ment was brought on the usual clause of Re-entry,

and Possession taken, Relief was given But Lord
1

Eldon seems not

sions, or to

to

have concurred in these deci-

admit that Relief could be administer-

ed, unless in cases of Accident

and Surprize; the

fect of Weather, for instance, or permissive

repair, the

and

want of

Landlord standing by and looking on m

seems clear that

it

ef-

the Tenant's conduct

if

with reference to his covenant has been gross and

Relief would not be

rubious,

nor will

much

relief

be granted,

to

him n

Premises being

out of repair, and the Landlord making a

Tenant refuses

requisition to repair, the

ply

the

if

given

to

com-

Wherever, indeed, there has been a wilful,

voluntary,

breach of a Covenant,

Equity will not relieve p

made 100 under

Lessee covenanted to

repair,

and he, afterwards,

Leases, and the Rent was behind,

and the Premises out of

Lease was avoided

at

repair,

Law

and the original

for the

non-payment

of Rent, Relief against the Forfeiture

in Equity,

on a

Court of

In one case, where the

pay the Rent and to

Bill filed

was given

by some of the under

Lessees, and their payment of the Rent in arrear

and repairing the houses, but the Court would not

1

Hack

v.

Leonard, 9 Mod.

90.

Hill

and Barclay, 18 Ves.

62.

"See
404.

Hill v.Barclay,

16 Ves.

18 Ves. 64. 406.

PDescartet v. Dennet,9 Mod.
22. Eaton and Lyon, 3 Bro. 693.
Hill and Barclay, 18 Ves. 62,

ACCIDENT AND MISTAKH.

apportion the Rent, but held that such Lessees

might compel the other under Lessees to contribute q

Notwithstanding some dicta

to the contrary,

that

decision 9

to

damage by

repair,

excepted, he cannot be relieved from the pay-

fire

ment of Rent,
fire

appears, at length, to be settled,

it

Tenant covenants

if a

and

but,

such case

would
If a

it

if

the premises

has been said, that

if

the Tenant in

offers to surrender his Lease, the

relieve", but that

Covenant be

pay a certain

Court

seems questionable.

some

to do, or not to do,

ticular act, or doing

or neglecting to do

it,

by

are destroyed

par-

it,

to

sum by way of liquidated damages,

Courts of Equity will not relieve against the pay-

ment of such damages v

poena

as

And where

Bond

the Revenue, such fraud

and

for that reason the

is

Webber

tioned

and Wright, menDoe v. Sandham, 1

Camden v. Morefrom MSS. 2 Selwyn

Abr. 414.
Hase v. Groves, 3 Anst.
687. Holtzapffel v.
Baker,
l8Ves. 115. and see on this
r,
Belfour v. Weston,
I Durnf.
and East 310. and
me cases there mentioned.
u
Cutter v. Power,
T. R.
'

I,

Roy

v.

Duke

x
.

of Beaufort,

Ponsonby

v.

Adams,

Bro. P.

C. 417.
w
Benson v.. Gibson, 8 Atk.
395. Woodward v. Gyles, 2
Vein. Hi).
x
Benson v. Gibson, 3 Atk.
39G.

023.

VOL.

will not relieve

470. Street v. Kigby, fi Ves.

818. Astley v.
Weldon, 2
Bos. anil Pul. 352. Sinai v.
Fitzwilliams, Prec. Ch. 102.

T. R. 708.
ton, cited

nomine

2 Atk. 194. Blake v. East

India Company, Finch 117.
itolfe v. Patterson, C Bro. P.C.

(ill).

in

considered as a Crime,

v. Smith, 2 Vera.
See 16 Vesi 406.
See Browne v. Quiltcr,

Steele

is

given not to defraud

is

Court

103.

Ambl.

where there

Leases to prevent a Tenant from plough-

in

ing".

EQUITY JURISDICTION.

34

If there be a

Covenant

Lease against using

in a

Premises as a Shop, or Warehouse for any Trade,

wkhout Licence

and a Trade

in Writing,

is

carried

on without such Licence, the Court will not relieve against an Ejectment. Nor would a Licence
to carry

Licence

on one Trade, be considered

to carry

on any Trade

as a general

y
.

If a Right of Renewal of a Lease be forfeited

by

Laches of the Tenant, Courts of Equity will not

7

give relief

but

if

the Lessee has lost his right

the fraud of the Lessor,

part,

or accident,
a

Equity will relieve

Cases of

on

by

own

his

this descrip-

tion have been very frequent in Ireland*', where,

said, one seventh of the

it is

held under

is

renewable Leases

found necessary

by which
relieved

whole Landed Property

;

and

it

was

an Act of Parliament

to pass

the Tenant

is

d
,

on certain conditions

e
.

Where
rate of so

there

was a Lessee of

much per wey, and

a Colliery at the

the Colliery became

not worth working, the Lessee was relieved against

the future Rent, and the
y

Macher

v. Foundling Hos18 Ves. 188.

Bayley v. Corporation of

pital,
z

Leominster, 1 Ves.jun. 470. S.

C. 3 Bro. C. C. 529. Baynharn
v. Guy's Hospital, 3 Ves. 295.
*See the Irish cases in the
House of Lords, Ripon v.
Rowley, 1774. Kain v. Hamilton, 177(i.

Bateman

1779. and for a

v.

Murray,

History of

these Decisions, see Boyle v.

Covenant

in the

Lease to

Lysaght, Vernon and Scriven's

Rep. 135. and Magrath

Muskcrry, ib. 1G6.
b

Lord

Raw storne against Bcntley,

4 Bio.
c

v.

C. C. 415.

See Arg. Jackson

v. SaunSch.and Lefr. 447.

A
19 & 20 Geo. 3. c. 30.
e
See a luminous interpretation of this Act, in Jackson v.
Saunders,
1 Sch, and Lefr.
tiers,

443. etc.

ACCIDKNT AND MISTAKE.

work the

upon paying

Colliery,

that could be got

Conditions

35

the Coal

for all

f
.

Precedents

before

an Estate vests,

literally

performed

i.

to

e.

must,

be
in

performed
general,

be

and the Court will never vest

an Estate where, by reason of a Condition Prece-

dent

Law

will not vest in

it

g
.

In

many

cases

it

will relieve to prevent the divesting of an Estate,

but cannot relieve to give an Estate that never

vested

unless the

',

Remainder-men who were to

take the Estate on non-performance of the Condition,

have used any indirect practice or contrivance

prevent the performance of the Condition

to'

Where,

therefore, there

tion over in a

is

a conditional limita-

given event, in such case (unless

the condition be for payment of a certain

Money

or such as the

same situation

in the

performed"

'.

and

it is

as

sum

of

Court can put the party

if the Condition had been

not contained in a voluntary

settlement",) the breach of the Condition cannot be

relieved

Where an

Smith

Estate

2 Bro.

was devised, upon

Bertie, 2 Vern. 333. S. C. 3

Chan. Cas. 129. and 2 Freem.

Wheeler v. Whitall, 2
Freem. 9. Wallis v. Crimes,
1 Ch. Cas. 89. Woodman v.
Blake, 2Vern. 222. Bertie v.
Falkland, 2 Vein. 339.
Taylor v. Popham, 1 Bro.

220.

C. C. 1G8.

'

v.

Morris,

C. C. 311.

Popham

Vera.

"
'

83.

Bamfield,

Lord Falkland

v.

v.

Vern. 339.

Cary

v.

Bertie,

Bold v. Corbett, Prec. Ch

84.Woodmanv. Blake, 2 Vera,

'.

2 Vern.

344.
k

'

damages are contingent

Equity cannot relieve, Sweet v.
If

Audersou, 2 Bro, P, C. 430.

221. and see 1 Ch. Cas. 52.

Lord
Falkland v. Bertie,
1 Vern. 333. Clerk v, Lucy,
5 Vin. 87,

D2

EQUITY JURISDICTION,

36

condition that

release

all

if

the

first

devisee should refuse or

comply with the condition,

neglect to

demands upon the Testatrix,

to

viz.

Exe-

as

cutrix of A. or otherwise established, within six

Months after
this was held
failure in not

be relievable

her death, with a limitation over

be a conditional limitation, and a

to

executing the release was held not to

-

Nor

is

Infancy allowed as an ex-

cuse for not performing a condition precedent. If

such

a condition

possible, even

never
It

arise,

illegal

or

is,

by the Act of God, the Estate

will

relieve "\

nor can Equity

i.

e.

to

be performed

vested; for though the

after the Estate is

Court cannot

all conditions subsequent, yet

relieve against

where the Court can

any case compensate the party

in

or becomes, im-

in general, different, as to co?iclitions subse-

is,

quent,

is

in

damages

for

the "non-precise performance of the condition/' as

LordA^^Mg-Zttfmexpressed

of God, the Estate will

The Rule

dition subsequent

In

all

those

relieve".

becomes impossible by the Act

If such condition

feited

Equity will

it,

is

is

the same where the con-

unlawful

Cases

Equity relieves

not be defeated or for-

p.

which a

in

against the legal

Court of

effect

of the

Breach of a condition^ it depends upon the question whether compensation can be made; for in
k

Simpson and Vickers, 14

Ves.341.
1

Co. Lit. 20G

Cary

340. Craydon
18.

".

Vera.
Hicks, 2 Atk.

v. Bertie,
v.

"

Popham

v.

Bamfielcl,

Vern.S3.
Cary
v. Lord
1 Vern. 339. Co.

2 Bk Comm.
p

Falkland,
200.

Litt.

15(5. 7.

Perkins, Sect. 139.

ACCIDENT AND MISTAKE.

cases where a Person has

all

and

forfeited a Penalty,

can be

broken a condition

Equity

compensation

37

will relieve if there

Hut

q.

compensa-

if

tion cannot be given, and the value ofthc thing

enforcing which

for

cannot be estimated,

Equity

will

the

forfeiture

relief is

relieve

denied

against forfeitures in con-

sequence of permissive waste

but not,

waste, though

against wilful

imposed,

is
r

it

it

seems,

admits of com-

pensation

Forfeitures which do not admit of compensation,

as forfeitures

which may be considered

and which determine

tions of the Estate,

they happen, cannot be relieved against.

fore, a

bis

Tenant

own

or

for Life

if

makes

a Tenant

It

by Copy

cases of forfeiture of

If,

there-

than

affects to con-

Law

he may, they

that, relief is given in

Copyholds

Copyholder has long refused

without licence,

when

nor will Equity relieve".

has already been said

or to repair"; and

it

a greater Estate

vey a greater Estate than by

forfeit their Estates

as limita-

to

do

v
;

but

where a

suit, or service,

where he has granted

relief will

berefused

leases

x
.

Northcote against Dul<e, 2 Win. G.'TT.

cited 1 Fonb.
ami se Barnar- Eq. oS7. in note.
Bishop of
diston v. Fane, 2 Vern. 3G(>.
\\ orcester and others, 2 1 Teem.
r
See Hargr. Jurisconsult.
137.
u
Exercitations, 2 vol. 11)4.
Sir II. Peachy v. Duke of
Sir H. Peachy v. Dnke of
Somerset, 1 Str. 402. S. C.
Somerset, Free. Ch. 072, S,
Pre, ( h. 574.
'Thomas v. renter, 1 Ch.
(Vnte, p. 2C, 7.
" Cox
Ca.95. Pre. ( h. 574. But see
v. Higford, 2 Yen).
Northcote v. Duke, Ambl. (JG4.
* Sir H,
514. Nash v. Fady Darby, q.
Peachy v. Dul
Somerset, Pre. Ch. 5G8.
'

Ambl. 514.

EQUITY JURISDICTION.

S3
It is to

Penalties

mance,
their

be observed that
are inserted

this

in all those cases. where

in a case of non-perfor-

does not release the Parties from

Agreement, but they must perform

it

not-

withstanding, and have not an option to pay the

penalty and be released from the performance of

the Agreement".

The

interposition of Courts of Equity

against

Marriage conditions, in Cases of Legacies,

perhaps be considered as arising out of
to relieve against Penalties and

however

this

ject will be

we come

may

its

may
power

Forfeitures; but

be, the doctrine on

this sub-

more conveniently considered when

to treat of Legacies*.

Relief has been refused against, a Forfeiture,

under a Bye Law of an incorporated Company for

Water Works, whereby it was provided, that the

Members

shall receive notice of the Default in

paying a

call,

payment
it

and incur a

ten days after the

by non-

forfeiture

notice sent

though

appeared that the lapse arose from an

dental ignorance of the call

So,

it

Loans,

seems, as to Contractors for Government

if

a Party fails to

not be relieved

in

make

Equity % and

has been refused on

ment

acci-

an

a Deposit, he canrelief in

application

such case
to Parlia-

b
.

* Howard v. Hopkins,
2
Atk. 371. Chiliiner v. Chilliner, 2 Ves. ,528. and see Hobson v. Trevor, 2 P. Wras, 191.

sed vid. Woodward

2 Vein. 119.

v,

Gyles,

y
2

Post.

v. the Company and

Proprietors of the Liverpool

Sparks

Water-works,
a

lb. 434.

* lb.

435.

ACCIDENT AND MISTAKE.

If a Bill has

been

filed

on that ground, seeking

though the Plaintiff

waiving a forfeiture, and,

relief in a

fail

89

Court of Equity,

in obtaining that Relief,

he will be restrained from insisting on the Forfeiture at

It

is

Law

c
.

in general true, that

it

isnot in the power of

the Court to relieve against Accidents

which pre-

vent voluntary dispositions of Estates'

great case,

was resolved

it

Conveyance with

that, if a

by the King

power of Revocation

to Jamaica,

to revoke

Where a Man
period, to settle

has

in the

and he

is

where that circum-

without such presence

it,

in

Equity will allow

stance becomes impossible,

him

but

Man make

presence of four Privy Counsellors,

sent

-<m election,

within a limited

Lands or pay Money, and the

Party dies, and the Testator's affairs are for

time in confusion, nothing,

it is

said,

is

some

more usual,

than for the Court to enlarge the time, or relieve

against any lapse of
If the

rupt

g
,

it

Master of an Apprentice becomes a Bank-

or dies h , these,

dents, in respect of
tion, to order a

it

which the Court has Jurisdic-

return of part of the Apprentice

Bond v. Hopkins, 1 Sen.

and Lefr. 441.
d
Whitton v. Russel, 1 Atk.
148.
I5;itli

Cli.
1

and Montague,

Ca. 68.

Eastwood

Wms.

617.

v.

has been holden, are Acci-

Vinke, 2 P.

See Hale against

2 Pro.

Webb,

C. C. 80.

" Sec Newton v. Rowse, 1

Vein. 460; but see what is
said F6nbl. Treat. Eq. 1 vol.
372. in note,

EQUITY JURISDICTION.

40

Fee

but

if

the Master and Apprentice agree that

the Apprentice shall be discharged from his

Ap-

no Jurisdiction, on

the

there

prenticeship,

is

ground of accident,
the Apprentice Fee

of part of

to order a return
5

The mere circumstance

of a death

is

not that

species of Accident against which the Court re(unless in the cases just adverted to

lieves,

where the

Plaintiff

;)

but

was prevented from recover-

ing in Ejectment by a Rule of the Court of

Law,

and by an Injunction

occu-

who

pier,

at the instance of the

ultimately failed both in

Equity, an

Account of Mesne

Law and

was de :

Profits

creed against the Executors of the Tenant

Bill

will not lie to be

in

k
.

against the

relieved

Condition of a Bottomry Bond, the same not

performed

having been

some small circum-

in

stances'.

An

Administrator being

much more

houses, and

in

possession of several

than sufficient to pay

debts and legacies, paid them

as they

were de-

manded, and afterwards, by the Fire of London,

several of the

Houses were destroyed, which con-

stituted the greatest part of the Assets, and then, a

Debt on
was

in

Bond being claimed, the Administrator

Equity relieved

".

Having noticed the leading

'Hale and Webb, 2 Bro. C.

73.

Pulteney

Anon. V* Abr.

tit.

Con-

dition.

C. 78.
k

'

principles of the

v.

Warren, 6 Ves.

m Croffc
vil,

v.

2 Freeni.

Lindsey and
1,

C'ol-

ACCIDENT AND MISTAKE.

decisions in respect to Accident,

41

we nowproc

to consider the doctrines of Courts of Equity in

respect

of,

II. Mistake.

Court of Equity

will not

supply ^Mistake in

a Fine after the death of the Conuzot*,

nor rectify

a mistake of Names in a Recovery, especially after

a length of time and against a Purchaser

will

it

relieve against an erroneous

the Lords' Court

different

tary

A
,

unless

it

Nor

Recovery,

in

c
.

But where a Deed

(it is

made on good consideration,

where the Conveyance is volunbe

is

in favor

of a Wife, or a legitimate

Child*,) Equity will supply a defect in the execution

f
,

the Court having

equal

Jurisdiction to

relieve in respect of a plain mistake in

Writing, as against frauds

in

Wharton

Wharton, 2
Whenever Vernon
Vern. 3.
the last
is quoted, it is from
edition of that work, by Mr.
Raithby, which is rendered so
very valuable by his great industrv, research, and accuracy.
v.

b
Bell against Cundall, Aml>.
102.
c
Ash v. Rogle, 1 Vern. 307.
d
Pickering v. Keeling, 1 Ch.
Rep. 78. Bonham v. Newcombe, 2 Ventr. 305. Lee v.
Jlenley, 1 Vern. 37. contra,
"Watts v. Bui las, IP. Wms. 60;
but that case disapproved in
Goring v. Nash, 3 Atk. 188;

and
v.

see dictum in

Williamson

Codrington, 1 Ves. 514.

in

contracts

Contracts: so

Vane v. Fletcher, 1 P. Wins.

354. Dunham and Newcombe,
2 Ventr. 305. Thomson v. Attfield, 1 Vern. 40. contra, Fothergill v. Fothergill, C. C. 70.
In Cold v. Corbett, Prpc. Ch.
8.
the court seem to have
thought it had a discretion
as to relieving a mistake in a
conveyance, sed
voluntary
qu. That the child must be
legitimate to have relief, Sbe
2 Ch. C. 200.
Anon. 2 Freem. 250 but
the doubt expressed in
2 Leon. 2d
Halton's case,
'

see

part, p. 8.

EQUITY JURISDICTION.

4-2

that

if

Writing contrary to the

reduced into

intent of the Parties, on proper proof that will be

8

rectified

By

proper proof,

presumption," as some say

said,

"strong

is
h
,

meant, " reasonable

and as others have

And

irrefragable evidence ."

1

it is

an essential ingredient to any relief under this

head, that
distinct

it

should be on an Accident perfectly

from the sense of the Instrument

If a Bargain and Sale be made, and

rolled within six

months, Equity

11

not en-

it is

will

compel the

make a good title by executing another

Bargain and Sale, which may be enrolled
Vendor

to

If a defective Conveyance be made, as a

Mortgage

Fee by way of Feoffment, ttttl/tottl livery, Equity

will make good this defective Conveyance, and
in

this,

though,

Judgment

is

after

such incomplete Feoffment, a

confessed

to a third person,

debt did not originally affect the Land"

defective

Conveyance

will not only be

whose

And

made good

against the Party, but also as against his Assignees*

or Representatives

m Burgh and Francis, Eq.

g Henkle
v. Royal Exchange
Assurance Company, 1 Ves.. Cas. Abr. 1 vol. p. 320. cited
Browne, arg. 1 P. Wms. 279. S. C.
Langley
317.
v.
under name of Burgh v.
2 Atk. 203.
h
Burgh,Finch 28.; but see what
2 Atk. 33.
Shelburne v. Inchiquin, Mr. Fonblanque observes on
this case, Treatise of Equity,
I Bro. C. C. 341. 344. Burt v.
Barlow, 3 Bro. C. C. 454. and 1 vol. p. 34. in note,
n
Finch v. Earl ofWinchelsee Marq. Townshend v. Stansea, I P. Wms. 282. and see
groom, 6 Ves. 305. 338. 9.
k
Shelburne v. Inchiquin, 1 Atk. 102.
Cripps v.
Jee, 4 Bro. C.
1 Bro. C. C.350.
C. 472. Morse v. Faulkener,
Curtis and Perry, 6 Ves.
'

745.

1 Anst. 14.

ACCIDENT AND MISTAKE.

43

In like manner, where a Copyhold was mortgaged, but

sented within the time

was

not having been pre-

the Surrender

void, and the

limited

by the Custom,

Mortgagor afterwards became a

Bankrupt, such defective Surrender was, on a

Bill

good

fded against his Assignees,

;

Plaintiff his Principal, Interest

foreclosed
ciple are
ties in

made

Assignees were directed to pay the

for the

in effect

and Costs, or to be

Cases proceeding on the same Prin-

numerous q

Conveyances

But where

certain formali-

are required by

Act of Parlia-

ment, and these are omitted, the Court,

it

cannot remedy the omission:

instance,

as,

for

seems,

where the Instrument wants the necessary stamps";

or

where

a Bill of Sale of a

collateral Security,

livered,

c. 60.

and the Papers, &c. were de-

but there was no

of the Registry, as

is

recital in the Bill of Sale,

required by the 26th Geo. III.

Lord Thurlow held

plied in Equity",

Ship was made as a

it

could not be sup-

and thought he could no more

reform the Title, where the Interest was derived

under the party's own act and contract, not executed in the terms of the Statute, than he could
reform an Annuity Deed, not according to the

Annuity Act

l
.

p Taylor
and Wheeler, 2
Vern. 564. S. C. Salk. 449.
q See
Dale and Smithwick,
2 Vern. 150.
r
See what is said iaTouliain
v. Price, 5 Ves. 240.
'
Hibbert against Rolles-

ton, 3 Bro. Ch. Cas.

p. 3.
Speldt v. Lechmere, 13 Ves.
588.
See what Lord Eldon says
in Curtis and Perry, 6 Ves.
p. 745. and Mesteir and Gillepsie, 11 Ves. 020,
'

EQUITY JURISDICTION".

41

Mistakes

Deeds, are sometimes remedied by

in

them

the construction given to

Principle, that

where

and manifest intention

and hemistakcs

the

Man

for

a general

it is

has expressed a clear

to dispose of his Estate,

mode of so doing,

instrument can be considered

yet, if the

valid, in point

as

of substance, so as to effectuate the intent of the

and the

party, its informality shall be overlooked,

deed take

man makes
heirs,

by law

effect, if

it

as

where a

relation

and his

can":

feoffment to his

and he neglects to make livery of

seisin, it

is

obvious that he meant his relation should take

it

by

common conveyance but

want of that

for

he cannot do so

formality, and therefore

operate as a covenant

to

stand

seised,

it

shall

and the estate

by the

passes by the

Statute of Uses, and not

Common Law,

so as to support the intention of

the party,

magisvaleat

lit

res

has been held, that

A. and

to

his

if

quam per eat

a Trust of

x
;

but

it

Lands be limited

Heirs and Assigns, or to such as he

or they shall appoint, and cestui que trust devises

these Lands by a Will, attested but by two Witnesses, the Will

is

void

nor will

operate as an Appointment

it

be allowed to

Defects in the Execution of Powers are relieved

against in Equity, and in Equity only

z
,

and upon

the same Principles upon which relief is given in

u

The leading

case

on

this

Crossing v. Scudamore,
Franklin v.
137.
1 Ventr.
Franklin^. T. 7 Geo. 1 1. 1733.

head

?VISS.

is

x
Habergham against Vincent, 4 Bro. C. C. ISS2.

Y.

Wagstaff

Wms.
I

v.

Wagstaff,

258.

Gooday

v.

Butcher, 9 Ves.

ACCIDENT AND MISTAKE.

the case of defective Surrenders of Copyholds

which
If a

more

will be

particularly noticed hereafter.

Power is executed

for a valuable considera-

but defectively, a Court of Equity will supply

tion,

the defect, and this against a Remainder

b

one not claiming under the Power

otherwise

Where
in

Power, therefore, was

it

in the

It

to

Man

or

would be

the execution were voluntary

if

c
.

be executed

the presence of three Witnesses',

Writing, in

and

',

was executed,

in consideration

of Marriage,

prcsenoe of two Witnesses only, the defec-

tive execution

was supplied

Power was given

So, where a

to settle

on a wife,

lands not exceeding ,=400 a-year, and, on marriage, the party

clear of taxes

afterwards

and

made

they should

covenanted to

fall

reprizes,

settle

100 a

year,

and a settlement was

of lands, with covenants that

short of e4()0 a-year

would make up the deficiency

it

if

the party

was held that

the settlement was intended as an execution of the

power, and the making

it

a mistake and relievable

Generally,

it

is

a clear *400 a-year

.

a Rule, that the

of a Power cannot be supplied

The contrary doctrine in

Zouch v. Woolston, 2 Burr.

394.

1136. has long been considered

as untenable.
* Watts v. Bullas,l
P.Wins,
00. Chapman v. Gibson, 2 Bro.
.
229.
b
Cotter v. Layer, 2 P Wins.

j-3.

was

f
,

Non-Executnm

though

a defectivi

lb. 024.

Wilkie v. Holmes, stated

1 Scb. and Lefroy, j>. 66.
n. a. S. C. 1 Dick. 105. Wade
agt, Paget, 1 Bio. C. C. 3Gb.
e
Ambl. 424.
* Tullit
v.
Tullit,
2 P.
Wms. 490. Holmes v. Coghill,
7 Ves. 499. and 12 Ves. 200.

in

EQUITY JURISDICTION.

46

Execution may.
thing

done; a

is

Power

where nodefective execution, is where the

non-execution,

has not been executed according to the

terms of the power, but where

to

is

execute

it

has been intended

and that intention

it,

clared but the

is

sufficiently de-

Act declaring the intention is not

Power in the form prescribed;

an execution of the

and there, the defect

is

supplied in Equity*.

As

where, in the Execution of a Power, there was a

mistake as to the time at which the Interest should

commence,

relief has

But though the

is,

a third person

yet

Power,

is

8r

legal Effect of the

tion of a Power,
;

been given

that the property

if

Non-Execuwould go to

the Court can see

coupled with a Trust

to

that the

the execution

of

which the parly looked with confidence, the Failure

or Negligence of the

Trustee, will

mitted, in Equity, to disappoint

not be per1

those objects'

This seems now, an acknowledged Principle of

Equity, though some of the earlier cases
easily reconcileable with

case of the

phin

Duke

are not

and, in particular, the

it,

of Marlborough

v.

Lord Godol-

'.

A Court of Equity will

supply a defective Exe-

cution of a Power, as well in the case

of younger

Children, and a provision for a Wife, as in favor of

Purchasers, or Creditors*
f

Shannon

v. Bradstreet,

Scho. and Lefroy, p. 62, 3.

g Probert v. Morgan, 1 Atk.
440.
h
Bax v. Whitbread, 16 Ves.
26. and see Brown and Higgs,
in its several stages, 4 Ves.

and

in

the case

of a

708. 5 Ves. 495. 8 Ves. 561.

S. C. confirmed on appeal to
House of Lords, in 1813 ; see
also Harding v. Glyn, 1 Atk.
469.
2 Ves. Sen. 61.
* Hervey v. Hervey, 1 Atk,
'

ACCIDENT AND MISTAKE.

Wife or

Child

it

has never entered into the view

of the Court, whether the

tary or not

turing

particularly,

Covenant

is

Covenant

is

where a power

made
is

it

has been determined

a sufficient declaration of an

Intent to execute"'; and

a

it is

before

the same, even where

the

power

arises,

limited to be exercised

for Life in possession,

as

by Tenant

and he covenants when he

comes into possession he will execute

cases Courts of Equity have relieved
It has

was volun-

provision

In cases without number, upon join-

Powers

that a

47

in all those

n
.

been thought difficult to account for the

interference of Courts of Equity to supply defects,

in favor of a child, in cases of Powers; since the

attempt to execute a Power, by Will,

is

no more

than an intimation that the party means to exe-

cute

it;

but

if all

the requisite ceremonies have not

been complied with,

it

cannot be supposed that

the intention continued until his death

Where,

under a Power of Appointment among children

it is

defectively executed

563. Tollett v. Tollett, 2 P.

Wins. 490. Coventry v. Coventry, 2 P. Wms. 222, and S. C.
in Str. 590. and very fully
given at the end of Max. in
Equity the last case, Sergison
v. Sealey, 2 Atk. 415. Menzey
against Walker, For. 77. Wilkie v. Holme, 1 Dick. 165.

and

see Shannon v. Bradstreet,

Scho. and Lefr. 60.
1 Atk. 507.
m Shannon v. Bradstreet,
1 Scho. and Lefr. 63.; and see
the cases quoted by Mr, Fonbl.
1

by

a Will,

if

the children

Treatise of Equity, p. 313.

in note, such as Fothergill v.
Fothergill, 2 Freem. 250. Clifford v. Burlington, 2 Verm

379.

Coventry

v.

Coventry,

2 P. Wins. 222. Sarth v. Backfry, Gilb. 160. Vernon v. Vacnon, Ambl. 3.

n
Shannon v. Bradstreet,
1 Sch. and Lefr. 63.
c
Vid. Finch and Finch.
15 Ves. p. 51. and see what isaid in Holmes v. Coghill,
7 Ves. 506. and 12 Ves. 212.
etc.

EQUITY JURISDICTION".

48

have legacies under the Will they are put

Election
It is

to their

'.

observable that according to the opinion of

Lord Mansfield, Courts of Equity, in the treatment

of Powers originally in their nature legal, follow
the Law. " Powers," he observed, " by a Tenant
to

in Tail,
if

ma

under

Leases

the

Statute,

not executed in the requisite form, will not

admit of

relief in

Equity.

So, with respect to

powers under the Civil List Act, powers under

particular family entails, Equity can no
lieve

from them, than

Common

cases to bind the

Manq ."

is

nothing

in these

conscience of the Remainder

In later cases, however,

that if a Lease under

has been holden

Power be granted

valuable consideration,

it

for a

Court of Equity witf

relieve against a defect in the Lease, in

of form

re-

can from defects in a

it

There

Recoverv.

more

a point

1".

Mistakes

in the execution

been endeavoured
construction of

of Powers by Will have

to

be remedied by a peculiar

ills

by which Powers have been

executed. Hence, the doctrine of Cy-presjn regard

to excessive executions of

ing Real Estates.

But

powers by Will

affect-

o?Cy-pres does
under a power to

this doctrine

not apply to personalty \

If,

appoint to Children, an appointment by Will to a

Child

for Life,

with remainder to her Children,

p Whistler v. Webster, 2 Ves.

3G7.
q Earl of Darlington v.
Pulteney, Coup. 2G7.
'Doe v. Wilier, 7 T. R. 478.

see Campbell
Ambl. 740.

and
s

Koutledge

Ves. jun. 3G4.

v.

v.

is

Leach,

Dorriel,

ACCIDENT AND MISTAKE.

the excess (the remainder to the

not valid, and

children)

dered

is

void

but

remainder

this

and

unappointed

as

49

but the Court will appoint

to

is

not consi-

go accordingly,

Cy-pres, as near the

it

Power

intention of the giver of the

as

possible,

as taking an Estate-tail

and consider the child

This doctrine of Cy-pres has not, however, been

much

approved, and has gone, Lord Kenyon observes, " to the utmost verge of the Law";" and

Lord EUlon has

said, "

not proper to go one

it is

step further*/'

Where

there

is

an excess in an Appointment

under a Power executed by Deed, the doctrine of

Cy-pres

but
is

in

is

not applicable, as in the case of Wills

In a case,

void, so far as relates to the excess.

where the Power was to appoint to Chilan appointment was made to a Child

dren, and
Life,"

and

after his decease, to his

Children, with a limitation over,

no Wife or Children

Power
Life was held

of the
for

such case the appointment under the power

therefore,

for

if

Wife and

he should have

death, to an

at his

the appointment

to the

object

Child

to be clearly good, but the gift

death to his Wife and Children % was

considered as void, they not being objects within

after his

See Pittv. Jackson, 2 Bro.

51. Griffith v.Harrison,

Brudenell

v.

Elwes, 7 Ves.

C. C.

382.

J Bro. C. C. 410; and see

on this subject Harg. and
Butl. Co. Lit. 27l k n. I.
u
Brudenell v. Elwes, 1 East,

'In Duke of Devonshire v.

Cavendish, mentioned 2T. R.
245. a power to appoint to
children was construed to extend to grand-children
but
that case lias not been followed
>-ee Crompc v. Barrow, 4 Ves.

451.

Brudenell

300.

v.

Elwes, 7 Ves.

,'

(.81.

VOL.

I.

50

EQUITY JURISDICTION.

the meaning- of the Power; but the limitation over

to the object

within the Power, was held to be

good, and capable of taking effect,

no'vWife or Children at his death
So,
years,

there be a

if

power

if

the Son

left

a
.

to lease for twenty-one

and the person leases

for forty years,

this

void only for the surplus, and good within the

is

limits of the

Power b

Under this head of Mistake, Settlements of

Real or of Personal Estate will be reformed, if the
Settlement be not according to the intention of the
Articles

w^on which

If a Settlement
riage, purporting

it is

founded

executed subsequent to Marexecution of Articles

to be, in

entered into before Marriage, does

effect,

though

it

not take the

follows the words of the Articles

the Court will, on the ground of mistake'

rec-

tify

that error in the frame of the Settlement

nor

is

6
:

length of time any bar to such relief f .

In cases of Articles before Marriage, the Court

says,

taken

such and

such

Words

to denote such an intent

veyance

is

Articles

in
;

are

and the Con-

according to the intent so manifested e

Articles before Marriage containing limitations,

which according to the strict legal operation of

or either of
the words would give the parents
11

Crompe

v.

Barrow, 4 Ves.

681.

d
e

Mitford's Pleadings, 117.

Randal

"Hervey v. Hervey, 1 Atk.

560. Campbell v. Leach, Arnbl.

273

740. see also Parkerv. Parker,

Ciib. Eq. Rep. 108. decided

123. S. C.

on sarne principle.
c
Randal v. Willis, 5 Ves.
262.

'

v. Willis,

Honor v. Honor, 1 P. Wms.

2 Vern. 058.

? Brudenell
390.

5 Ves.

v.

Elwes, 7Ves.

Trevor v. Trevor, 1 Eq.

Abr. 387. and S. C. 1 P. Wins.

ACCIDENT AND MISTAKE.

them

',

such an Estate-tail

as

51

would enable the

Father alone, during the coverture, or the Surviving Parent afterwards, to bar the issue of the

Marriage under a

Settlement, limiting the

legal

Estate in the same words, Equity will rectify

and order a

strict

Settlement

the Issue

unless

it

otherwise provided for than by the Limitation

is

to the Heirs,

&c.

the Articles

in

lent in a Settlement

made

after

by an equiva-

Marriage

or from

other limitations or provisions in other Lands,

appears that the Party

tinction m
for a

knew and intended

where there has been a Purchaser

valuable consideration without notice", or
;

or

the Articles cannot be produced

The

general

of Equity
cles

it

the dis-

into

interpose

to

Courts

Marriage Arti-

carry

way

execution by

upon which

principle

of strict

Settle-

ment, notwithstanding the Articles themselves

are not penned

made

in

in that

manner,

consideration

of

is, that.

and

Articles

previous

to

Marriage, are considered as heads of Agreement,

or short notes

length

to

according

be afterwards
to

622

2 Atk. 7:3.
'StreatBeld v. Streatfield,
Cas. Temp. Talb. 170. Jones v.
Langhton, 1 Eq. Abr. 392.
Nandick
v. Wilkes,
1 Eq.
Abr. 393. C. 5. Gilb. Rep.
114. Bask v. Dalway, 3 Atk.
531.
Villiers,

"

Chambers

v.

Chambers,

Fitzg. 127. S. C. 2 Eq. 35.

at

usual course of Set-

the

.S. C. on appeal, 2 Bro.

P. C. 122. Cusack v. Cn^ack,
1 Bro.
P. C. 470. Villiers v.

drawn out

Glanville v. Payne,
40. S. C. Barn. 18.
m Chambers v.
Fitz. 127.

Howell

v.

2 Atk.

Chambers,

2Eq. Abr. 35. C. 4.

Howell, 2 Vea. 358.

Fearne on Contingent Remainders, 108. West and Erissey,2P. Wms. 349. Warwick
v.
Warwick and Kniveton,
3 Atk. 291. Pritchard agaiust
Quinchant, Ambl. 148. Cardwell v. Mackrill,
r

Cardwell
Ambl. 515.

Ambl. 515.
v.

Mackrill,

EQUITY JURISDICTION.

52
tlements

p
,

and that a provision

the marriage

is

for

the issue of

one of the great and immediate

objects of this agreement,

principal intention of

and consequently a

such agreement must be

to secure such a Settlement as shall contain an

effectual provision for that Issue
is clear,

which end,

it

cannot be answered in any degree by a

Settlement so framed as to leave

it

in

the power

of either parent alone to bar their Issue by Fine

or Recovery.

The

Issue in these cases are con-

sidered as claiming a provision in the capacity of

Purchasers

for valuable consideration,

under the

purport and intention of the stipulated terms upon

which that marriage was engaged, and which gave

them birth q
.

The Court, however,

Articles and
riage

r
,

will not interfere

Settlement are

made

both

if

before

Mar-

unless the Settlement in that case be ex-

pressed to be

made

for otherwise the

in

pursuance of the Articles*;

will suppose that the

Court

Parties had altered their Intention with respect

to the terms of the Marriage;

which they may

before the Marriage, though not afterwards

that the

Taggartv. Taggart,

1 Sch.
87. and see 2 Atk.
545. 5 Ves. 275.

and
q

and

Settlement was made in pursuance of

1-efr.

Fearne on Remainders, p.

111, 112. and see the terms of

Lord Harcourt's decree in Papillon and Voice, 2 P. Wins,
474. in note 1.
r
Legg v. Goldwise, For. 20.
West v. Erissey, 2 P. Wms.

349. This is the first case in

which the Court altered the
Settlement, and made it conformable to the articles, and
relieved on the head of mistake. See 3 Atk. 293. Portyu
against Roberts, Ambl. 317.
Roberts v. Kingsley, 1 Ves.
239.

ACCIDENT AND MISTAKE.

such new agreement and not of the

when

it

said to be

is

room

articles, all

for

But there

cluded*.

made

in

53

articles,

pursuance of the

such a supposition

is

pre-

no case hut where there

is

are articles as well as a settlement, that the Court

will construe
tail

words which create

be carried into a

to

And where the

a legal Estatel

settlement

strict

limitation in the articles gives an

Estate-tail to the wife alone, in an estate derived

from the husband, the settlement must be accordingly; because in such case it is not in the power
bar the issue,

of either of the parents alone, to

either during or after the coverture

band takes no

Estate-tail,

for the hus-

and cannot therefore bar

the issue of the marriage; and the wife cannot,

during the Coverture, do

it

without his concur-

rence: and her Estate-tail being ex provisions

the Stat. Hen. VII.

wards.

And

doing

jointly

it

it

prevents her doing

viri,

after-

it

has been held that their power of

is

not unreasonable, or inconsistent

with the probable view and intent of the settlement \ But this doctrine does not, it seems, apply to copy ho Id estates; for the stat. of

and the 32 Hen.

Where,
issue

8. c. 28.

in articles,

it is

II.

to tliem

w
.

agreed to convey to the

of the marriage, "whether Sons or Daughters,'*

See Fearne on Contingent

Reuiainders, last edition, from

page 00 to p. 107, where the
whole subject is admirably
discussed, and most of the
cases are noticed.
1

Hen.

do not extend

Warrick

v.

Warrick, 3 Atk.

294.
u
Fearne on Remainders, 94.
and see Highway against Ban-

VOL.

I.

ner, 1

deuell
lienor

Bro. C. C. 584: Bruv.

Elwes, 7 Ves. 300.
v.

Honor,

P.

m*.

Whotely v. Kemp, 2 Ves.

358. Green v. Ekins, 2 Atk.
123.

477. S. C. 3 P. ^
w
See Mr Butler's

Not

to

Fearne Contingent Remainders,

114. n.

E 3

X.

to last Edition.

EQUITY JURISDICTION.

54

they take, as tenants in common*; and

is

only a fee simple, or probably

Freehold, the settlement,

terest

it

Tenants

and

would be limited

Common,

in

it is

only a

if

Common
to

in Tail with

mere chattel Inthem absolutely as

it is

if

Estate

seems, would be upon

it

the children as Tenants in

cross remainders

if the

with a Limitation over

in

case any of them die under twenty-one and without

Issue

y
.

And though a limitation by

male of the marriage,
life

articles, to the heirs

an express estate for

after

to the father, shall be taken

mainder

to

the Jirst, &c. son,

that such a

Body must

it

to

mean

Re-

does not follow

limitation to the heirs

male of the

be equivalent to a remainder limited

to daughters', and entitle

them

to a provision in

the rectified settlement.

An
cles,

elder daughter,

is,

in the

execution of

arti-

a younger child; and a deed foundwould be rectified to that effect A

no case where the Court has consi-

accounted

ed on

'

articles

but there

is

dered a younger child as an eldest, but between

parent and children, or those
parentis

Where

stand in

loco

term

for raising portions

after an estate-tail,

the Court has

was placed

but should have been

rectified

*Taggart v. Taggart, 1 Soli.

andLetr. 84.
y lb.
and see Ward and
Bradley, 2 Vem. 23.
Powell v. Price, 2 P. Wms.
539.; but see contra Burton v.
Hastings, Gilb. Rep. 113. West
and Erissey, 2 P. Wms. 349.
Hart v. Middlehurst, 3 Atk.
371.

who

the
a

mistake

See Heneage
2 Atk. 457.

c
.

v.

before,

So

Hunloeke,

b
Hall against Hewer, Ambl.
204.
c
Uvedale v. Halfpenny, 2
P.Wins. 151. adopted in Heneage v. Hunlocke, 2 Atk. 45.
andsee 2 Yes. 334.

ACCIDENT AND MISTAKE.

settlement has been

reformed according to the

intention as declared in the recital

It'

55

A
.

Testator has by his will expressed a clear,

a'

unequivocal, intention

to pass a

Copyhold, ora

limited Interest in a Copyhold',(a remote reversion

only*

but has omitted to

;)

use of his
if

will, the

Court

make

the devise of the Copyhold

ditors

',

a Wife',

Children

11

a Surrender to the

supply the Surrender,

will

is

in

favour of Cre1

Legatee , or

Chari-

but not where there are limitations to Stran-

ty'";

gers prior to the Charity", nor in favour of

children

or of illegitimate Children

of the Testator'

The

',

principle on

Grand-

or a Sister

which

administered, seems to be, that wherever a

is

relief

man

having Power over an Estate, shews an intention

execute such Power,

to

d
Payne v. Collier, 1 Ves.
Juu. 171. Doran v. Ross, 1 Ves.
Jun. 51). S. C. 3 Bro. G. C. 28.
Kightley v. Kightley, 2 Ves.
Jun. 332.
See IMarston againstGowan,
3 Bro. C. C. 170.
1

"Cook
Wms. 287.
h

Car

v.

v.

Arnham, 3

Ellison, 3

P.

Atk. 77.

expressed in 2
Freem. 65. has been long over-

The

doubt

ruled.

lloomev. Roome, 3 Atk.

was doubted whether
extended to a
this equity
but in Hawkins and
wife
Leigh, I Atk. 387. it was held
'In

182.

it

it

did.
k

Anon. 2 Freem. 115. and

1. Hard ham v. Roberts,
'

2 Vem. 1J2.

in

discharge of natural or

'

Palmer

v.

Palmer, 2 Dick*

534.

See Harris and Ingledew,

P.
n

Wms.

08.

Ambl. 573.

Att. Gen.
against Downing.
As to grand-children, see
Kettle and Townshend, I Salk.
187. S. C. reversed in House
of Lords, Show. P. C. but this
reversal disapproved. See Hills
v. Downton, 5 Ves. 505. Watts
v. liullas, 1 P. Wins. Gl. and
note, and see Chapman against
Cibson, 3 Bro. 231. but adhered to by Lord Eldou in Perry v. Whitehead,
Ves. 544.
and see 2 Ves. 582. Elton v.
Elton, 3 Atk. 508. Goodwin
and Goodwin, 1 Ves. 228.
p Cricket v. Dolbv, 3 Ves,
12.
<
1 Ves. 128.

EQUITY JURISDICTION.

60

will operate

moral obligations, the Court

make him

the conscience of the Heir, to

that intention

r
.

The

upon

perfect

idea of supplying a Surren-

der was, originally, a bold one; and seems to have

some of the very extraordinary deupon the Statute of Charitable Uses*, 43

arisen out of

cisions

Eliz. c. 4.

At

first,

it

seems, the Court supplied the de-

fect in favour of Creditors, and then they extend-

ed the doctrine in favour of younger Children.

upon the idea, that younger children unprovided

for, must be considered as creditors *.
With respect to Creditors, a defective Surrender is not supplied, except where it is absolutely
necessary for the

payment of

would, otherwise, be unpaid.

debts,

If,

and they

therefore, Free-

hold and Copyhold Estates be charged by a

with the payment of debts

will,

so long as any Free-

hold Estate remains applicable to that purpose",

a Surrender of the

Copyhold

notwithstanding the

will not be supplied;

Testator to charge the Copyhold

rateably with,

or even in preference to, the Freehold.

r

Chapman

of the

express intention

against Gibson,

3 Bro. 230. and see Hills v.

Downton, 5 Ves. 504. Toilet
and Toilet, 2 P. Wms. 489.
See Duke's Charitable Uses,
and what is said in Kumbold
v. Rumbold, 3 Ves. 69. and
the remarkable Decision there
alluded to.
1
So said Arg. in Whitcombe v. Whitcombe, Prec.

But this

Ch.282. and see Hills v. Downton, 5 Ves. 5G3.

"
Mallabar v.
Mallabar,
For. 78. Ithell v. Beane, 1 Ves.
215. Drake v. Robinson, 1 P.

Wms. 443. Hellier

in Addenda to 3d

v.

Tarrant,

edition of

Forrester, p. 287. etc. and the

there mentioned
but
eases
;

see Bixby against El ey,

C. C. 325.

Bro.

ACCIDENT AND MISTAKE.

to

is

be understood of the

must be remembered

it

legal estate only;

that an

surrender

supplied

in

without

devise

having the legal Estate, the

for not

Testator could not surrender

Though

for

equitable Estate

of Copyhold will pass by such

w

0<

x
.

Surrender of a Copyhold will not be

favor of a

Widow,

younger children,

or

where there are Freehold and Copyhold lands,

and general words are used

Copyhold Estate
otherwise
hold

is

in

is

will,

the case of creditors; and

wanted

in the devise,

and the

if the

want of

the

for debts,

der will be supplied,

used

in the

not expressly mentioncd y ,itis

Copy-

Surren-

there be general words

if

such ns," messuages, lands,

tene-

and hereditaments,'' though the Copyhold

ments,

Estates are not expressly mentioned

z
.

Deed or
who are un-

Surrenders will be supplied in case of a

a Will

in favor of

provided

for,

ger
w

C.

for
it

the heir,

'',)

being unimportant, by

Macnamarav. Jones, 1 Bro.

482.
Monntfort,
v. Poulton,

Gibson

C.

lee

by the

will under which they

where a provision has been
either by the father or a stran-

(unless

claim the Copyhold

made

younger children,

Hawkins

v.

Lord

Ves. 489. Allen

Ves. 121. and
v. Leigh, 1 Ark.

388. Maceyv.Shurmer, 1 Atk.

390. Car v. Ellison, 3 Atk. 75.
v. King, 3 P Wma. 358.
Tuffnell v. Page, 2 Atk.
38. S. C. Barn. 6.
'See Bias v. Bias, 2 Ves.

King
*

1G4

Via. Drake

v.

Robinson,

whom

or

how he

is

P. Wins. 442. and sre also

Raslewood t. Pope, 3 P. Wins.
p. 322. Limlopp against Eborail, 3 Bro. C. C. 189. Kidney
v. Coussmaker, 12 Ves. h">7."
1

'""Rogers v. Marshall, 17 Ves

295..
b

Cooke

v.

Arnham, For

36. S. C. 3 P. Wins. 383.

also

in

Cooke v.
16 Ves.

MS.

under
Arnold, Gain

title
v.

and
of

Gam,

208. Chapman
Gibson, 3 Bro. C. C 230.

v.

EQUITY JURISDICTION.

iS

many

provided tbr c , whether by settlement, or

other

way

d
;

and the Court

not enter into a

will

consideration of the quantum of the provision

but some provision,

must

there

seems,

it

be

6
;
f
,

though doubts have been thrown out on this

point": and the provision, it has been determined,

must
it

the Bill

filed

is

'':

being said to be a rule, that the Court will not

supply the defect of

or

when

exist at the time

younger

heir,

a surrender in favor

children, to the disinherison of an

unprovided
k

But

for'.

provision for the heir,

but a child

of a wife,

is

this doctrine as to

not applied to any heir,

perhaps, a grand-child
heir in blood, but not hares actus m
,

or,

If the heir mortgage the

to an

Copyhold

out notice of the devise, and

to one, with-

have been

there

will not be

surrender

laches in the devisee, the

supplied, as against such mortgagee".

A surrender

will in

some

favour of an eldest son

cases be supplied in

as in a

case of Gavel-

c
Pike against White, 3 Bro.
C. C. 288.
d
Hawkins v. Leigh, I Atk.
380.; but see 3 Atk. 183.
e
Cooke v. Arnham, 3 P.
Wms. 283. S.C.MS. Burton v.
Floyd, 6 Vin. 50. pi. 20.
' lb.
and see Chapman v.
Gibson, 3 Bro. C. C. 229.
g
See Hills y.Downton, 5 Ves.
Fielding v. Winwood,
557.
10 Ves. 92. Tudor v. Anson,
2 Ves. 582.; but see Lord Alvaidey's remarks on Hills and

265. S. C. 2 Freem. 17. Prec.

Ch. 32.
'Hawkins v. Leigh, 1 Atk.
388. Macey v.Sharmer, 1 Atk.

Pownton, in Sugden on Powers, Appendix, No. 0. p. 550.

k
Cooper v. Cooper, 2 Vern.

380.

390. and see Briscoe

v.

Cart-

Eq. Hep. 121.

Ilicken v. Hicken, Vin. Abr.
tit. Copyhold, (M. A.) Ca. 20.
right,

Gilfc.

59.

p.
k

Chapman

v.

Gibson, 3 Bro.

C. C. 230.
'

Rogers

v.

Marshall. 17 Ves.

297.
"'

Smith

v.

Baker,

Atk.

" Weeks v. Gore, Vin. Abr.

tit.Copyhold, (M. A.) Cas. 24.

ACCIDENT AND MISTAKE.

kind Copyhold, where

59

of the will

the intent

appears to be, that the eldest son should have the

copyhold, paying a legacy thereout to the younger

son

Where

a Surrender

is

supplied for creditors, an

account will aho be directed of the rents and profrom the time the copyhold estates are held

fits

from that time the customary heir is

a mere trustee: and this, though the heir be an
to pass

for,

but in the case of

infant

younger child guilty

of great laches in not asserting his claim, (as for

Account was decreed only

from the time of filing the bill'
The plaintiff,
where a surrender is supplied, usually pays the
fourteen years,) an

costs

r
.

In cases where there are joint bonds, the Court

has in causes, as well as in bankruptcy, sometimes
inferred from the nature of the condition and

the transaction, that

and has

rectified

new bond
and, in

it

it

8
;

shall be

cases

decreeing, in a cause, that a

executed joint and several;

of bankruptcy, that proof

be made accordingly

cases, that the bond,

though

tended to

Bradley

it

be both joint

v.

Bradley, 2 Vera.

163. and the cases mentioned

in note to Watts and Bullas,
1

P.

Wms.

Kidney

GO.
v.

of

was made joint, by mistake,

being supposed
joi

only,

and several'.

Banks

v.

587. S. C.

'Simpson

shall

in

these

was

in-

Parole

Den^haw, 3 AtkVes. 03.

v.

Vauehan.2 Atk.

33.

Coussmaker,

12 Ves. 158.
* Cook v. Arnha.n,3
P. Wms.
288. in note l;and S. C. MS,

'

Uoderhill

10 Ves. 227,8.

and Horwood,

EQUITV JURISDICTION.

60

may be adduced to prove,

down in writing were contrary

evidence
taken

current intention of
served,

it

It has

parties

all

must be strong

that

words

to the con-

but, as before ob-

irrefragable evidence

w
.

been holden that a Mistake of Parties as

to the law,

is

not a ground for reforming a deed

As where an Annuity

founded on such mistake.

mi

was granted, but no power of redemption conin the deed,

tained

by the

parties

being mistakenly thought

it

would make the transaction

v
Whether ignorance

it

usurious, relief was refused

of law will entitle a party

has been doubted

So,
tion,

if

to

open an account,

w
.

two persons

bound

are

in a joint obliga-

and the obligee release one of them, not

supposing that he thereby discharged the other,

as, in

Law, he does

yet the rule, ignorantia juris

non excusat, applies, and Equity will not interfere*.

So, where a Copyhold was devised to A. for

with remainder to his

remainder to D. in
enseint of a son,

version in fee
his

own

use,

first

fee.

and other sons in

life,

tail,

A. 's wife being privement

he was advised

buy the

to

re-

from D., and take a surrender to

which would merge

his estate for

life,

and destroy the contingent remainder, there being

then no issue born.

He

accordingly bought the

reversion of the remainder-man.

"

Shelburne

Bro.

v.

Inchiquin,

C. C. 341, 344.
'Lord Imham againstChild,
1 Bro. C. C. 92. and see Lord
Portmore against Morris, 2 Bro.
C. C. 290.
1

This transaction

w
Langstaff
Ves. 400.
x

IJ

387,

arm an

v.

v.

Fenwiek, 10

Camra, 4 Via.

ACCIDENT AND"M It TAKE.

proceeded altogether on

that

brought his
relieved,

mistake of the law

for

the lord,

in

A.

the contingent remainder.

tected

pi

and inheritance being

the freehold

Q{

under these circumstances

bill

be

to

against the security given to the rever-

sioner for the purchase of the reversion, he being

under a mistake
interest,

There

but " Per Cur.

Pay

principal,

and costs, or be dismissed with costs

."

however, several cases in which a

are,

party has been relieved from the consequences of

case

it

was

the

said that,

juris non e.vcusat,''

that

Law
maxim

on Ignorance of

acts founded

was

and

one

in

" ignorantia

regard to the public,

in

ignorance cannot be pleaded in excuse of

crimes, but does not hold in civil cases. Ignorance

not mistake

is

b
,

and Relief,

it is

very clear, cannot

be given on a supposition merely that parties are

ignorant of the legal effect of their acts.
instance, a tenant for

and takes a

life

If, for

pays off an incumbrance,

release of the debt

which he paid

off,

cannot be contended he meant to continue

it

as

subsisting debt;

or

a tenant for

if

planting or otherwise, improves his

improvements

life,

estate,

it

by

such

are not claimable, as distinct from

the freehold.

Nor

will

Mistakes

of

Judgment
be
D

relieved

'Mildmay v. Hungerford,
2 Vem. 243.
See Lansdowne v. Tansriowne, Mos. ant.
Pusey v.

Stockley v. Stockley, 18 Ves.

30. Jones v. Morgan, 1 Bro.
C. C. 210. Gee and Spencer,
2 Vera. '62.

Desbouvere, 3 P. Wms. 315.

Pullen v. Ready, 2 Atk. 591.
and what is said of thatcase in

Mos.

'

'

Lansdowne
oM>4.

5 Ves. 14.

v.

Lansdowne,

EQUITY JURISDICTION.

62

Agreement or Composition of a
cause be made, the Court will not, upon the quesIf an

against.

tion

whether either party

is in

the right or wrong,

an agreement made by parties,

overturn

open and rightly informed

their eyes

And where

.'with

deeds have been executed to estaor

where there has

for a valuable

consideration',

blish the peace of a family*

been a purchaser

though parties may have acted under a mistaken

apprehension of their rights, relief has been refused.

But

Agreements

in general,

personal estate,

if

relating to real or

founded on Mistake, willfor that

As where

reason beset aside.

a person entitled

to a share in the distribution of the personal es-

makes an agreement under the

tate of an intestate,

supposition that the distributive share

and

a value,

it

turns out that

the

is

of such

share

is

of

greater value, a court of Equity will set aside

an Agreement originating in such amistake f

So, where A. purchased an estate of
in fact,

which,

JB.,

was the estate of A. A. was allowed, on

the ground of mistake, to have the purchase-money

refunded, though there was no fraud in B.

apprehended he had a

And in
c

such cases,

Browne

v.

Pring,

right to the estate

it

Ves.

8.

Frank

v.

Frank,

Stupilton

v.

Ch. Cas.

Stapilton,

Atk. 10.
c

seems, a Mistake

Corking and

who

may be

Pratt, 1 Ves.

Sen. 400.

408.
84.

Warner

v.

Wtfkins, 2 Atk.

Bingham

1 Ves. 120.

v.

Bingham,

ACCIDENT AND MISTAKE.

taken advantage

of,

even after considerable lapse

of time, (seven years, for instance*

a long acquiescence

it

nei-

'.

Another very hard case

illustrates the princi-

A Mortgage]Deed came into the hands ofan

executor,

who

receives the money^sfcured bv the

mortgage, and pays

had been

away

it

It afterwards

ditors.

bill

afti c

under the mistake, and

ther party aware of

ple:

but not

.)

satisfied in

to histestator's cre-

appears that the mortgage

for this

the testator's life-time.

was fded against the executor

overpayment, and

relief

to

be relieved

was decreed,

al-

though the money had been paid away by the

executor, and the executor was driven to sue the
creditors

whom

he had, through mistake, paid

But where both

and the
from

nature, doubtful,

agreement, and equally

a co<

rt

have been mistaken,

parties

about which they were mistaken was,

fact

its

at

of Equity has refused

time

the

unknown

to

of the

both parties,

relief.

As where

there was a contract for a piece of ground, which

was about to be inclosed, for ~20, and it turned

out to be worth .200, yet neither party knowing

the value, although the contract was to be perform-

ed infuturo, a specific performance was decreed

It has also

there to be a

knew B. was
*

in

knowing

the estate of B. of which he

P.

125.

Nicholls

if A.

ignorant, should enter into a con-

East v. Thornbcrry, 3

Wow.
'

been determined, that

Mine

Pooleyand Ray,

P.Wmfc

354.
v.

573.
Vaughao
1 Bro. 550 f

Leeson, 3 Atk.
v.

Thomas,

See the case cited by Lord

Chancellor in Mortimer ami
Gapper, 1 Bio. C, C. 158.
'

equity jurisdiction.

0*4

tract to purchase the estate of B. for the price of

the estate, without

court,

seems,

it

considering

will not set

mine,

the

aside m .

it

It is

such

essentially necessary in order to set aside

a transaction,

not only

should be taken, but

ligation in

the

which brings

it

it

party to

arise

make

from some ob-

up by mistake, and

to ignorance of a transaction

have made

it

discovery";

the

to a case offraud.

If instruments be delivered

owing

great advantage

that a

must

the

which would

conscientious to hold the instru-

ment, and proceed at Law, a court of Equity will

relieve

Equity

mispleading

will not relieve against

or the inattention of parties in a court of

neglecting a proper defence % or to

trial

proper time

in

but

recovers a debt against

if

move

Law,

for a

as

new

Law,

a plaintiff, at

the defendant,

and the

defendant afterwards finds a receipt under the

plaintiff's

hand, or that the plaintiff's

own book

appears to be crossed, Equity will relieve

this

and

seems reasonable, inasmuch as the courts of

Law would

not, in

such case, grant a new

trial*.

And, where in an action against a bankrupt, he,

for want of his commission, was unable to supm Fox

v.

Mackreath, 2 Bro.

C. C. 420.
n
lb.

East India Company v.

Donald, 9 Ves. 275.
p Stephenson
v.
AVilson,
2 Vern. 325. Blackball v.
Comb?, 2 P. Wms. 72.
q
Ware v. Horwood, 14 Ves.

Bateman

v.

Willoe, 1 Sch.

andLetr. 201.
* Countess of
Gainsborough
v. Clifford, 2 P.Wnis. 426.;but
see Barbone v. Trent, 1 Vern,
176.
'

See Marriott

7 T. R. 209.

v.

Hampton,

ACCIDENT AND .MISTAKE.

port his plea of a certificate, he

Go

was

and

relieved,

a perpetual injunction granted".

So, where a defendant tailed at law for want

of proving a copy of a judgment,

perpetual in-

such as

junction was granted, the matter being

was examinable

In regard to Mistake by Arbitrators,

holden that,

whose

in

may be

Equity

Law,

the award

but

if

a question oi

referred to an arbitrator, there,

tor

is

wrong

his

in

x
,

to set

Law be

aside

expressly

though the

arbitra-

conception of the law, the

award cannot be remedied

be not referred,

make

or in the Fact",

made

is

against the party

filed

favor the award

has been

it

an Arbitrator in his award

if

plain mistake, either in the

bill in

Law

in Equity, as well as at

if it

and though the law

y
:

be a doubtful point of law

upon which the arbitrators have decided, and the

Court on great deliberation should be of a different opinion, the award will yet be good
It has

been doubted whether altera general re-

ference to arbitration,

pending

by

parties

in

a suit, de-

Court of Chancery, and made an

Law, such order, by virtue

in the

order of a Court of

of the statute

Blackball

Wms.
"

v.

a
,

excludes the equitable jurisdic-

C Ves. 282. Young and Wulter, 9 Ves. 304.

* Anon. 3 Atk. f>44.
Young and Walter, 9 Ye?.
v. Morgan, MS.
364. S.P.
and see 14 Yes. 271. in note;

Combs, 2 P.

GO.

Kent

and

Fq. Abr. 159.

Bridgmau,
S.

C. l'ree. Ch.

233.
w

Ridout

v.

Payne, 3 Atk.

494. and S. C. 1 Ves. 11, 12.

< orueforth
v. Geer, 2 Vern.

see also

70'.. Metcalf and Ives, 1 Atk.

C3: but see Ching v. Ching,

VOL.

I.

Ching v. Ching,

(j

Ves,

282.

'

2 Atk. 494.

9 and 10

Wm.

3. c. 15,

EQUITY JURISDICTION.

66

tion over awards, in

condition of the submission

from bringing a
trator,

bill in

With

to be restrained

is

Equity against the arbi-

a plea of the award,

allowed

it

seems, would be

Mistakes in settled Accounts

respect to

they are elsewhere considered'

be observed that

if

but

it

may

an account be settled,

deed cancelled under a mistake,

obtained

If one

cases of Mistake''.

relief

here

and a

mav be

6
.

Mistakes in Wills, are frequently relieved against

Equity.

in

As where

was a mistake in a statement

in the Will, and the mistake was clear, and the
intention plain, the Court rectified the mistake acBut in all these cases,
cording to the intention
there

the mistake must appear on the face of the Will,

Evidence as to

otherwise, no relief will be given.

matter dehors the will, to shew the mistake,

sufficient

5.

The mistake must be

strable mistake;

and wherever there

take or a clear omission, recourse

the general

scope of the

will,

intention to be collected from

thing to be proved
b

a clear,

is,

that there
f

Nichols and Chalie, 14 Ves.

265
but see Browne and
Browne, 1 Vern. 158.
c
See Lingood v. Croucher,
2 Atk. 390, 7; but see ib. p.
;

506.
d
See tit. Account, post.
East India
Company
Neave, 5 Ves. 173.

v.

is

is

is

not

demon-

a clear mis-

to

be had to

and the general

it

is

but the
a mistake

first
h
.

Williams agajnst Williams,

2 Bio. C. O, 87. Milner and

Milner, 1 Ves. 100; see also
Phillips and Chamberlain, 4
Ves. 51.
6 2 Atk. 373.
1

h
See Kidout v. Dowding,
Atk. 419. Mellish and Mel-

listh,

4 Ves. 47.

ACCIDENT AND MISTAKE.

Where

a Testator

by

his Will

61

gave legacies to

A. and B. describing them, as grand-children of C.

and their residence

America, and by a codicil

in

he revoked these legacies, giving as

were dead
was held that the
and that they were entitled
the

legatees

true, it

proof of identity

a reason that

but that,
will

not

being

was not revoked,

upon

to the Legacies,

So, where the residue of three per cent. Annuities

was given

to the

two daughters of A., and A. had

three daughters: they

take,

were decreed

And, where

all,

on the ground

oi

to take equal shares'.

sum was

specific

given as a

residue and miscalculated, the real residue

allowed to pass

So where
per cent.
after her

gave a sum, part of his four

Annuities, to his wife for

decease to several relations

was admitted
such stock

at

viously sold

it

was

a testator

Bank

mis-

to

shew

that

life,

and

evidence

the testator had no

the date of the will, having preall,

and invested the produce in

Annuities, and how the mistake arose

and
upon such evidence the legacies were established'.

Long

If the testator

the legacy

had had the stock

at

the time,

would have been considered

as specijic,

and that he meant that identical stock

act of his

destroying

that subject

proof of animus revocandi

u

Campbell

v.

Freuch,

321.

Stebbing v. Walkey, 2 Bro.

t~5, and the cases mentinned in the argument of Mr.
'

(.'.

but

if it is

and any
would be a
a

denomina-

* Darners against Manning,

2 Bro. C. C. 18.
Selwood v. Mildmay, 3 Ves,
30G. See a similar eas*, Door
v. Geary, 1 Ves. '255.
'

F 2

EQUIT? JURISDICTION.

08

not the identical corpus, in that case,

tion,

thing itself cannot be found, and there

take as to the subject out of which

that will be rectified

if

the

a mis-

is

to arise,

it is

".

If a fling- or a Picture be given, and neither can

be found, the mistake cannot be rectified".

Mistake

the

in

name of

a Legatee,

may be

corrected in favor of the legatee by articles of description,

this,

evidence

of a legacy, parol

plain a nick-name, or

blank

in a will

probability

Where

9
,

if

it

it is

admissible

was
.

v.

of

insufficient.

to

the gift of a legacy

the

intention, and to

mistake as to the fund,

Wild may 3Ves.

,

lb. 310.

case, 1

v.

is

Some such evidence was

u
;

will

but there,
furnished

it

in-

reluc-

seems,

sufficient

See 5 Co. 08.

Bay lis v Attorney Gen,
2 Atk. 239.
s
See Holmes v. distance*
12 Yes. 279. Del Ware against
Kebello, 3 Bro. C. C. 440, and
S. C. 1 Yes. Jun. 412.
* Chambers
v. Winchin, 4
"

Rivera

up a

fill

affords only a high degree

Atk. 410.
Parsons, 1 Yes.
Jun. 260. S. C. noticed arg.
3 Bro. C. C. 447.
p Beaumont v. Fell,
2 P.
Wins. 140. Goodinge v. Goodinge, 1 Yes. Sen. 231, 61. Dowsett v. Sweet, Ambl. 175.
"

per-

to

310.

see Parsons

two

must be conclusive,

it

the peculiarity of the

there, arc

ad-

tantly admitted in one case

m Sel wood

to ex-

admissible

is

are plain, evidence as

So, in the case

but not to

*>,

the words used in

there

In cases where evidence

mitted and operates,

effect

is

where

name

sons of the same

shew

though both the Chris-

and 8 tin a me be mistaken p

tian

have

pointing out the person

sufficiently

intended to take", and

Yes. 070.
u

Fonnerauv. Poyntz,

C. C. 472.

Bro.

A CCO UN

doubt

warrant the admission of collateral evi-

to

dence to explain

Where

it

a Will

cancelled by mistake,

is

presumption that a

69

I.

latter will

proves void, this will not

good, which

is

the heir, but

Account.

9.

of Courts of Equity in matters

Account has been sometimes supposed

of

arisen on the ground, that

was considered

that the principle

an account where the

have

the accounting party

part}'

It

*.

upon which

courts of Equity originally entertained

that though he

to

the light of a trustee

in

seems, however,

is

relievable in Equity

The Jurisdiction

let in

or on

had a legal

might support a suit

suits
title,

at

for

was,

Law,

court of Law could not give so complete a remedy

as a court of

Equity

Equity assumed

bill

The

and

Bro.

"Onions

before auditors, has

Tyrer,

P-

4'20.

The Corporation
v.

Wilson,

and
O'Connor

11 Yes. 155.
Spaight, 1 Sch.
Lefr. 309. and 2 Ves. 388.
1 vol. Selwyn's Abridgement,
p.l. Mitford's Pleadings, p.
110.
The most recent case
of an action ofaccountj is reported in 3 Wills. 73,

279.

C.C. 4^0.
v.

of Car276,

13 Ves.

the

brought that

1'.

Wins. 345, 6.
s.-e 4 Yin. Abr. 533. and
what Lord Ersfcine pays, 13
Ves f 288.bat seelVes. Jun.
J

is

of Account, as under a

the difficulty and delay where

action into disuse

lisle

in

s&me species of Relief

in the action

account comes

*1

jurisdiction

Equity; but the great advantage of the

in

latter,

Law

and, by degrees, courts of

concurrent

cases of Account.

given at

see

v.

&

EQUITY JURISDICTION.

70

Law

If the right at
directed,

and

count follows

if
2

is

the right be established, the acand, in general, where the party

cannot recover

be doubtful, an issue

at

not sustainable.

Daw,

a bill

for

an Account

is

Dealings between a tradesman and customer ,

may be thesubject

of Account

It

is

man on

Equity, especially

obtained from an extra-

in the case of securities

vagant young

in

not, however, every case

dant owes more to the

ground

for a bill for

be mutual
series of

misrepresentation

where the defen-

plaintiff,

that forms

an Account.

demands, forming

There must

the ground

c
;

accounts on one hand, and a series of

payments on the other, and not merely one payment and one receipt and if the subject is matter
(1

of set-off\t Law, and capable of proof,

not

lie ".

The

case of

ed as standing upon
is

Dower

its

the case of a Steward

own

is

a bill will

always consider-

specialities;

and so

f
.

Where there havebeen various

Landlord and Tenant, so

as to

dealings between

produce an account

Law, and the landlord brings an ejectment for non-payment of rent,

the tenant may fde a bill, before judgment at law,

too complicated to be taken at

for an

account, on the footing of those dealings,

and to have the balance applied to the rent claim* Vid. Milbourn and Fisher,
Ves. 685. in Note.
13 Ves. 278.

Lord Courtney v. Coda9 Ves. 473. S. C. MS.

Dinwiddie v. Bailey, 6 Ves.

chall,
1

136.

d
Weliiugs and Cooper in
Exchequer, cited by Romilly,
MS. and see 9 Ves. 473.
e
Dinwiddie v. Bailey, 6 Ves.

136.
f

6 Vez. 136,

ACCOUNT.

71

ed to be due, and the tenant need not bring

The court
because

it is

gives an account in the case Mines*)

Trade'; and in the

in the nature of a

Timber cut down

case of

in the

5. g

rent under the statute, 4 Geo. I.e.

plicity of suits

though

to prevent a

multi-

as to this, if there is not

aground for an Injunction to restrain Waste, as

where more timber is threatened to be cut, the
party must go to Law'". Lord Thurlow, indeed,
appears to have thought that, where a Tenant for
life,

punishable for waste,

fells

timber, a Bill for an

account by a Remainder-man

in fee, lies against

him, on the ground, that the Tenant

made

for life has

himself Bailiff to the plaintiff";

that does not

trine in the

man must

though

seem very consistent with the docsame

take

viz.

that the remainder-

money

the timber produced,

case,

the

and not the real value of the timber, which even

Law would

acourt of

A factor
ble

to

have given him.

(unless he be an infant

',) is

compella-

account in Equity, and likewise

deceased

Co-Factor

q
;

for

and the representatives of

a Factor are accountable".

count against a conuzee, to

*
h

1 Scli. and Lefr. 305. etc.

Bishop of Winchester v.

Knight, 1 P. Wms. 400.

Storv v. Lord Windsor,
2 Atk. 030.
k
1 P. Wms. 400.
Pultenev v. Warren, G Ves.
1

89.
r.

Acsee if the conuzee upon

conuzor has a right to

m 1 P. Wms. 406. Jesus Coll.

Bloom, 3 Atk. 202.

file

a bill for an

I.ee v.

Alston,

Ves. Jun.

82. S. C. 1 Bro. C. C. 190.

Lee against Alston, 3 Bro.

C. C. 38.
p Smaller v. Smalley, 1 Eq,
A>r. 6.
q Holtscoml) v. Rivers, 1 Cli.
Cas. 127. S. C. 1 Eq. Abr. 5.
Nek. 125. S. C. 1 Eq. Abr.
r

6.

EQUITY JURISDICTION.

72

the extended value under an

but
whole debt
has been said, the Tenant by

a satisfaction for his

cases,

it

never made to pay

An

costs

recovering at

Law

these

in

elegit

is

1
.

merely as heir,

heir cannot,

an Account, unless he

file

a Bill for

an impediment

states

to his

as that, the defendant has the

deeds necessary

title

has received

elegit

that terms are in the

maintain his

to

way

title,

or

of his recovery at law

some other legal impediments, which do, or

ma) probably, prevent it: upon which probability,
or upon the fact, the Court founds its jurisdicBills of this description are what are
tion u
or

termed Ejectment

Bills,

and

these

as in

cases,

Avhere the validity of a will comes in question,

cannot be determined by a court of Equity,

it

sends

it

that

to

be

by the

determined

per tribunal, by directing

the heir

to

pro-

bring an

Ejectment, providing, at the same time, that the

defendant shall not set up

or unsatisfied

at

Law

trial

had

a term satisfied

and those obstacles being removed,

way under
Court of Law, they come back

and a
a

in that

the controVil of
for the account,

the deeds, &c. which course leaves

brances just

as

' Yates
362.
1

v.

Owen

in

giving relief

Ilambly, 2 Atk.
against

Griffith,

Anibl. 520.
"

the incum-

much incumbrances

possession had not been changed.

convenience

all

PulUneyv. Warren, 6 Ves.

in

as

There

if

the

great

that shape rather

89. and see Dormer

cue, 2 Atk. 284.
1 P.

is

See Leighton
Wins. 071.

v.

v.

Fortes-

Leitrhton,

AC COL' NT.
than by directing issues*; for the question
ther

anew

trial

should or should not be had,

trial

discussed with

whe-

much more

was had,

than

where the

satisfaction,

the court out of which

in

the issue was directed.

this description, there

is

In

bills,

must,

it

however, of

seems, be some

averment upon the Record, as well' as proof that

those obstacles do exist, which

ejectment

may

prevent an

the admission of such obstacles, by

infants, is insufficient".

With

respect to the Account ordered of Rents

and

Profits of Estates, in these and similar cases, the

where

rule appears to be, that

bill in

Equity, in respect of a

equitable
tate;

title,

mesne

anEstate

in

Court
Profits

y
;

brings his

and upon

legal title at

Law

mere

no more than

profits are recoverable,

trust, is

count of rents and

six years

trust,

man

he will in Equity recover the Es-

but as upon a

six years

so

where

recovered in Equity, the ac-

profits

is

not extended beyond

and under special circumstances, the

will only decree an

Account of Rents and

from the time of bringing the

bill.

As

where the defendant had no notice of the plaintitle, nor had the deeds and writings in his
custody, in which the plaintiff's title appeared
or where the title of the plaintiff appeared by

tiff's

deeds

in a

stranger's

custody.

So,

where there

hath been any default or laches in the plaintiff

As was done in Pemberton

and Pemberton, 13 Ves. '2*J0.
x
Pembertoq v. Pemberton,
J3 Ves. 29a
Ste Reade v. Reade, 5 Ves.
I

749, 750. Stackhouse

v.

Bam-

ston, 10 Ves. 409; but sec what

is said in Dormer v. Fr*. - ue,

3 Atk. 130.

EQUITY JURISDICTION.

74

asserting his

in not

Court has often thought

lain by, the

it

fit

to restrain

In the instance of a

to the filing of the bill.

bill

and he has

sooner*,

title

brought by an infant to have possession of

an estate, and an Account of Rents and Profits,

the Court will decree an account/rom the time of
1

the infant s title accrued; for every person

on the estate of an
ing as guardian

enters

considered as enter-

infant, is

or

who

bailiff for the infant

a
:

and

Where, indeed, there is a verdict against the infant's title he can have no Account till he has recovered at Law, and the bill
will be retained, and a trial in Ejectment diThere are other cases where the Court
rected b
so says Littleton.

merely upon a legal

will,

from the
has

tiff

filing

been

defendant
If there

kept out of the

Estate by

the

concealment of the

or

no

is

trust,

nor infant d in the case, nor

any entry made by him, who

mesne

give the account

of the Bill, as wherever the plain-

misrepresentation,

fraud,

title,

profits,

Equity

of rents and profits

is

entitled

will not decree an

until

to the

account

recovery has been

But where a discovery is necessary of the

deed under which the plaintiff's title arises, and
had f

relief is
1

See

prayed to have
Lockey

v.

Lockey,

Pree. Ch. 518.

Newburgh

produced

at all

trials at

3 Atk. 130. and Bennett

Whitehead, 2 P. Wins. 045.
where the deeds and writings
v.

"
Dormer v. Fortescue, 3
Atk. 130; see Yallop and Hoiworthy, 1 Eq. Abr. 7. New.
burgh v. Bickerstaffe, 1 Vern.
29G. and see Pettiward v.
Prescott,7 Yes. 541.

1 Vern. 295.

it

v. Bickerstaffe,

making

the plaintift'stitlewere

concealed by defend ant,Townshend v. Ash, 3 Atk. 340.

d

Roberdan

v.

Rous, 1 Atk.

544.
e

Norton

525.

v.

Frecker, 1 Atk*

ACCOUNT.

Law, and

the

be decreed,

without having the

title

no doubt

as to

Law,

established at

first

.)

have attested copies, an account of

to

profits will

if

there

is

title*.

In

all

where questions have arisen about

cases

Sharesin Wuttr-icorks, the parties have constantly

resorted to Equity for
is

a legal Estate,

Where

mesne

though

profits,

and a corporeal Inheritance

person has been ejected at Law, and

the other party has been in possession above

and no account demanded, or

years,

it

8.

tvccntij

bill filed

in

that time, the Statute of Limitations^ will bar an

account

mesne

in

Equity, as well as an action for the

profits at

extend to a trust

Law; but

this statute does not

'.

Under the head of Account,

nership Dealings
interference

nor will a Court of

for equitable

subject

form a

that Part-

is,

it

Law

Account to be taken
Partnership must not be illegal, as

Partnership

in

writing, for in such case, a bill for an

will not lie

direct a

But the

Under-

Account

b
.

been holden that a Court of Equity has

Jurisdiction against a Corporation on a bill for an
It has

Account of
ship

and

this,

not only at the

member, but of a stranger

'

Townshend

v.

Ash, 3 Atk.

3 Atk. 337.
21 Jac. 1.
1
Nevture andRutton, Vin.
Abr. Tit. Account, (D. A.)
"

pi. 7.

See

instance

of a

3 Bos. and

Till.

2S0. and

Wat-

son's Partnership 107. see also

337.

nature of a Partner-

Profits, in the

Chapman and Koops,

King v. Whitstaple Comp.

7 East. 353. what Lawrence,
Just. says.
b

Knowles

v.

Haughton,

11 Ves. IG8. S. C. MSS.

\ See 17 Ves. 315.

EQUITY JURISDICTION.

7(5

stock and

Partners are joint-tenants in the

and not only

effects,

that particular stock

in

all

in

being

at the

ship

but they continue so throughout, whatever

changes

time

mav be made

course of trade
a

his acts

for instance,

Colliery,

in the

becomes by

If a person
in

of entering into the Partner-

in

Partner,

which land

is

necessary to carry on a trade, the interest in a lease

by operation

will pass as an incident to the trade,

of Law, and

Frauds

d
.

not affected by the Statute of

is

Being thus seized per

where an Account
tled to

is

my

et

per tout,

be taken, each

to

is

enti-

be allowed against the other every thing

he has advanced or brought in as a partnership

and to charge the other

transaction,

in,

or has

taken out more than he ought: and nothing

be considered

Ac-

in that

count with what he has not brought

is

to

but his proportion of

as his share,

the residue in the balance of the Account 6 .

A Judgment

and Execution against one partner

for his separate debt,

worse condition
ances

made him

does not put the other in a

for

he must have

before the

all

the allow-

Judgment Creditor can

have the share of the other applied to him.

So,

if one

partner dies, the debts and effects sur-

vive; but the survivor, unless

ed otherwise

f
,

is

considered

it is

in

expressly provid-

Equity, (except as to

the^ooof wilt of the trade, which survives, and

partnership stock
r

p
,)

is

not

barely as a trustee for the re-

242, 3. and see Lvster

v. Dolland, 1 Ves. Jim. 4-35.
* I'orster v. Hale, 3 Ves. G9G,
5 Ves. 308.

1 Ves.

West

v.

Peace
Ves. 33.
8

Skip,
v.

Hammond

Ves. 242, 3.

Chamberlaine,
v.

Douglas,

ACCOUNT.

77

upon which footing

preservatives of the deceased,

the

Account would be taken, and nothing con-

sidered as the share of the survivor

which

from

is

tin

till

afterward

\-

continuance of the property in

the stock to the representative of the deceased

who

partner,

the survivor
So,

rupt.
sent, or

if

has a specific lien thereon, although

afterwards dies or becomes

the partnership

by effluxion of time

ihe legal interest,

that

is
',

bank-

dissolved by con-

that determines not

which continues

as before; so

the property in the stock of the partner so

going out

is

not divested thereby; but he remains

equally entitled as Joint-tenant with the other:

and

in a bill for

an Account, the stock would be

As between one

subjected for his satisfaction.

partner,

and the separate creditors of the other,

ihe separate creditors cannot affect the stock any

farther than
k

they are

that

and

if

partner could

whose

creditors

they proceed against the part-

nership property, the partners

may

file

a bill to be

quieted in the possession of the partnership effects,

and pray

for

an Account of what

is

due

to the

partner so giving a security, and for an injunction

mean time'".
Where there has been

afair dissolution of part-

between

and one by agreement

in the

nership
retains

two;

the partnership

5 Yes. 530. Sed Vid. Crtishaw

y. Tollius,

15 Yes. 227.
1 Ves. 243. and
see as to
tins,
Croft v. Pyke,
li
P.
Wms. 182. and
Ex parte
Williams,
Yes. 5. and Kxparte K umn, G Ves. 12<>, 7.
''

effects,

and afterwards

1 Ves. 243. and hee Ekp&rte

Smith, 5 Ves. 297.
k
West and Skip, lVes. 24:}
"and see Young v. Keighley,
15 Yes. 557.
'Taylor v. Fields, 15 Ves,
'

in note.

EQUITY JURISDICTION.

73

becomes

a bankrupt,

right as against

ing in specie"';

became

the joint creditors have no

what was joint property, remainfor by the agreement
the joint

separate Estate.

partnership, without any agreement for con-

may

tinuance,

be dissolved at any time

when

either party thinks proper, subject to the proper

but all the subsisting engagements

Accounts
must be woundup: and for that purpose they
;

remain with a joint interest; but they cannot

new engagements.

enter into

lution, the trade be carried

ners,

such partners are

profits

a partnership

is

an Account,

filed for

fendant from

using

account

on a

for

the

so dissolved, a bill may-

and to

restrain the de-

the partnership name, and

receiving the partnership debts

i\\

such disso-

on by any of the part-

liable to

produced by such trading

Where
be

If after

for

bill filed

an Account of partner-

ship transactions, the defendant denies that he

a partner, he

may

refuse to set forth an

Account

is
q
;

but the Court, in such case, directs an issue, as

whether

to

result of the issue

bill is

The

is

that he

then dismissed

Statute of Limitations

Exparte Ruffin, G Ves.

Exparte Williams, II Ves.
and see Exparte Fell, 10

""

Peacock

and

if

the

not a partner, the

is

Crashaw

no plea in bar to
v.

Collins,

15 Ves.

218.
p

Master

v.

Kirton, 3 Ves.

75.

Ves. 347.
n

is

'.

] 19.

3.

or not

a partnership exists

v.

Peacock,

1G

Ves. 50, 57.

" Fe;itherstonhaugh v. Fenwick, 17 Ves. 310. and see

q
Marquis of Donegal
Stewart, 3 Ves. 440.

v.

r
See Peacock v. Peacock,
15 Ves. 52. and see Binford v.
Domnutt, 4 Ves. 750.

ACCOUNT.

TD

9
but though length of time
an open Account
forms no bar to an account, as between merchant
;

and merchant^ yet

if

them hive
them dies, and

dealings between

ceased for several years, and one

of'

the surviving merchant brings a

bill

an Ac-

for

count, the Court will not decree an Account, but

remedy at

leave the plaintiff to his

Length of time cannot be

set

Law
up

1
.

as matter

dun urrer, as a compleal bar to an

demand; for length of time operates as a
law,

l>\

proprio jure

of

equitable
bar, not

but as a fact shewing acquiescence

and a party cannot avail himself of an inference

from facts on a demurrer"; but length of time may
be urged with great effect at the hearing of the
cause

rule founded

for it is a

on principles of

public policy" , that parties shall not,

forward their demands, put others

to bring

state

superable difficulties
fore, that

can

fairly

a stale

demand.

make

demand

to a

subjecting them to in-

of inconvenience

by neglecting

every presumption, there-

be made, will be made, against

Indeed, the very forbearance to

is

considered as affording a pre-

sumption either that the claimant

is

eonscious

was satisfied, or intended to relinquish it\

Court of Equity," says Lord Camden,

it

"

'

Scndamore

v.

White,

Pickering v. Lord Stami brd,

Vera. 456.

2 Ves. Jan. 280, 582,

Sherman v. Sherman, 2
Vern. 270. and see Bridges v.
Mitchell, Gdb. Eq. Rep. 225.

Doleraine v. Browne, S
liro. Ch. C. p. 633. and Whapham v. Wingfield, 4 Ves. and
Higgins v. Crawford, 2 Ves.
jun.572. Brownell v. BrowneU,

u
Doleraine against Browne,
3 Bro. C. C. 638.
w
See Hercy against Dinwoody, 4 Bro. 268.

'-i.

and

see

2 Bro. C. C. 63. and see Stmt

v. Mellish, 2 Atk. <ill>.

I.QU1TV JURISDICTION.

SO
*'

which

is

never activein

relief against

conscience

or public convenience, has always refused

demands where the party has

to stale

and acquiesced

his right,

Nothing can

its

slept

aid

upon

for a great length of time.

call forth

this

Court into

activity,

but conscience, good faith and reasonable diligence:

where these are wanting, the Court is passive and

does nothing. Laches and neglect are always discouraged; and therefore from the beginning of this
jurisdiction there
in this

was always a

limitation to suits

Court*."

Where,

therefore, a party has lain

by

for a great

length of time, and suffered an Estate to be dis-

Account *; but on
the other hand there are cases when, where parties
are not called upon to refund what has been applied, and the Accounts are clear, relief has been

tributed, he cannot insist on an

given,

notwithstanding great length of time has

elapsed

release, if

under

to a Bill for an

Account
answer

in

A
i

seal,

Account

writing

or

it

may be
b

pleaded in bar

and so may

may be

If the Bill not only

insisted

a stated

on

in an

impeaches an Ac-

count, but charges, the plaintitf has no counterpart

Smith v.Clay, Ambl. 645.
but see judgment more fully
'>'

reported, 3 Bio. C. C. 039. in

note; and see Lacon v. Briggs,
3 Atk. 105.
2
Hercy against Dinwoody,
4 Bro. 257. and see Smith v.
p. 539.
Clay, 3 Bro. C. C.
iu n. S. C. Ambl. 045. but not
See also Doleraine v.
>o full.
Browne, 3 Bro. C. C. 040.
t

As

lord
2 Ve. 581. see
Astrey's case, 2Freem. 55.
*

in Pickering v.

Stamford,
b

Mitford

Pleadings, 209,

210.
c

lb. 208.

2 Atk. 399. 3 Bro.

C. C. 170.
d

Sumner

Atk.

1.

v.

Thorpe,

ACCOUNT,

SI

and the defendant pleads a stated Account,

must annex

lu;

Answer". If error or fraud

are charged, they must be denied by the plea as
well as by way of answer
and if neither error or
to his

it

fraud

is

charged, the defendant

must by

Account is just and

knowledge and belief

aver that the stated

the best of his

Account,

stated

his plea
true, to

good and pleadable as

to be

such, need not be signed by the party

not the signing, but

the person to

for

it is

whom

the

Account is sent, keeping it by him any length of

time without making any objection, which binds
him, and prevents his entering into an open Account afterwards".
it is

among merchants,
looked upon as an allowance of an Account

current,

if

It is said, that

the merchant

object against

And with

in a

it

who

receives

it

does not

second or a third post

respect to Foreign Merchants,

if

one

Merchant sends an Account current to another in

Country, on which a balance is made
due to himself, and the other keeps it by him two
a different

years without objection,

of Merchants,

is,

that

the rule in Equity and

considered as a stated

it is

Account \

Where

Fraud appears

in a stated

Account,

the whole will be opened though of a great

years
settled

standing

11

And though

by Arbitrators,

I.

if

any

2 Vern.

27<5.

Denton

v.

Shellard, 2 Y<

v.

V aw drey ,2

>.

2W.

'

VOL.

Account be

not conclusive,

it is

TIankey v. Simpson, 3 Atk.

303.
Mitford'a Pleadings, p. 208.
F
Willis v. Jeraegan, 2 4tk.
252.

an

many

Vernon

110.

Atk.

EQUITY JURISDICTION.

82

shewn

error can be

be

Account

in the

impeach

to

filed

But

'.

Account,

a settled

it'

a Bill

specific

must be shewn '", except, perhaps, in the

case of an Attorney, where upon the face of the

Errors

Account, the Attorney admits

that he has

given credit, and produced that state of his

was entitled

that the Client

surcharge and falsify them,

some

be set aside for

to

them stand,

but, letting

it is

it

cepted' :" for

it is

to defend himself,

Rule that
though the

this

Account contain the usual words

1

sought to

is

a fixed

must be charged, and

error

but where

to have";

the Accounts are not sought

fraud,

' :

Errors ex-

impossible for the Defendant

if

under a general charge,

specifying any error,

the Plaintiff

the Defendant has heard nothing

reason for

it

upon the

Errors and gets a Decree

Where
settled

was filed for an Account, and a

Account was suggested by the Answer,
a Bill

to surcharge

settled

Tottenson

530.

and

falsify, if

Account
v.

Pout, 3 Atk.

Anon. 2 Freem. 62. Chamv.

Goldwin, 5 Ves. 837.
Dawson and Dawson, 1 Atk. 1.
"'

and see Drew

and Lef. 192.
"Matthews

v.

v.

Power,

1 Sell.

Wallwyn,

Ves. 123.
3 Bro. C. C. 200. yet see
v.

Combs, 2 Freem. 183.

in

the Decree

the Master should find

When

bers

Pnjiid

which

There must

to

but not proved, Liberty was given

any

p.

at

shew there is
proves some of those

Bill

the Plaintiff

not

may come

the hearing with the proof of those errors, of

be error enough

not

affairs,

Parties are thus at

'Chambers

v.

Goldwin, 9

Ves. 206. Taylor v. Haylin,

2 Bro. C. C. 310; and see

Bourke and Bridgman, 2 Ham.

272. Johnson against Curtis,
3 Bro. C. C. 200.
4 Twogood v.
Swanston,
Ves. 486.
r
Kinsman v. Barker, 14 Ves,
579.

/CCOUiNT.

and

Liberty, to surcharge

confined

to

mere

Liberty

is

the onus probanili

Parties can

ought

given to surcharge and

is

Court takes

inserted that

shew

to

it

it,

is

a surcharge

and that

must be on proof on

any thing

if

his side

is

at liberty

is

falsification

is

stated

which credit

for

wrong charge, he

falsify,

any of the

if

or

as

it

but

shew an omission,
is

take

always on the party having

establishes

to be, that

may

not

Law \

that Liberty; for the

Account and

they are

falsify,

of fact, but

errors

advantage of errors in

Where

S'

but that

and that makes a

between the general cases of an

great difference

open Account, and where only leave

surcharge and

is

given to

such must be made

falsify, for

out'.
It

has been laid

down

as a

Rule, to be departed

from only on very special circumstances,

Man

standing

in

the Relations of Agent, Auditor,

Land Steward, and Manager,

regular
his

Accounts of

Employer

that a

bound

is

his transactions

not only

but Accounts of Receipts

to

keep

on behalf of

Accounts of Payments,
:

and

if

he has neglected

to

keep regular Accounts, he will not be permitted

to

make

demand

for

Work and Labour

in that

character, with reference to which, he has kept no'

Account

v
.

* Roberts v. Kuffin,
2 Atk.
112. S. C. Barn. 259.

'Pit
V.

v.

CWmondeley,

White

v.

LaJv

Lincoln,

8 Ves. 3G9, 371, \i7'\ Lwptoa

v. White, 15 Ve*. 432.

>U*.

G 2

EQUITY JURISDICTION.

54

And

if

an Agent or Bailiff has confounded his

Principal's property with his

is

chargeable

whole, except what he can prove to be

for the

his

own, he

own.

Bills for Tythes, are, as matters of Account, very

frequent in the Court of Chancery

but the Juris-

diction of the Chancellor in Tythe causes,

fessedly,

tion^

not an original Jurisdiction", but was

as incidental

and Discovery.

It

and

was not

that the Jurisdiction

respect,

con-

no part of his proper and natural Jurisdic-

it is

assumed

is,

collateral to an
till

Account

after the Restoration

of the Chancellor, in this

was compleatly established y

In the 29th

CharlesII.Lord Nottingham declared thattheCourt

of Chancery had cognizance in matters of Tythe, as
well as the Exchequer, and that the Plaintiff had
his choice of the
is

Court

z
.

The Court of Exchequer

the proper Jurisdiction for Tythes

Court

that

having for Centuries taken conuzance of them

the ground of which, probably, was,

were considered

Crown, and

of the

therefore the Exchequer, as a

Court

respecting

Lord Nottingham, however, seems

origin

Gwillim,

that Tythes

as part of the possessions

of Revenue, had Jurisdiction

the

them b

to have dated

of the Exchequer Jurisdiction over

Tithe Cases, p.

790.
* lb.
2 Ves. jun.
p. 1080.
028. 5 Ves. 232. 7 Bro. P. C.
110, 111. Toml. Ed.
Vid. Mar. Co. I/itt. p. 159 s .
note 290 ; and see 1 Freeman,

303. 2 Ch. Cas. 237. there cited.

See Gwillim's Tithe Cases,
p. 1084.
a
3 Atk. 247.
b
2 Freem. 27. 2 Ch. Cas
237. Gwillim 527.

ACCOUNT.

Henry VIII

Tythes, in the reign of

some

S3

Tythe

difference in these

There

cases,

as to

proceedings in the Court of Chancery

Exchequer.

Tythes

is

and the

decreed, not for the future, but only up to

Chancery, the decree

is

but

Court of
an Account of Tythes

for

in the

to the time of the Decree, as said in

or as Lord

Hardwicke

"

to the

down even

says,

some cases d

another

in

time of the Master

for

Report';"

depending between the Parties

suit is

Ac-

Tythes may be carried on, as long as

able also, that though the

)>

Demand

It is

for

ever so small and inconsiderable, yet

Equity may be

Where the

filed for

is

Tythes be

still

clearly

the

observ-

a Bill in

the recovery of them K

Tythes

title to

made

our,

the Court of Chancery, or the Court of Exche-

quer, decrees an Account; and where a

real composition

reasonable Evidence,

it

Law before
Common Law right of
an Issue at

the practice to direct

is

they decree against the

the

from the Court of Chancerv

Bench

or

Common

Exchequer,

Court

is

tried

Pleas

is

The

tried in the

issue

Kind's

and an Issue from the

Law

on the

side of the

same

..

4()3.

Carleton

well.
c

Parson.

11

Vid. Har. Co. Litt. p. 159.

n.4. and Hard. 23<>. 1 Frcera.
303, there cited.
d
Vid. 2 Atk. 13G. 2 P.,

Wins.

modus or

and supported by

pleaded

is

2 Atk. 137.

v.

Bright-"

'
s

case,

or as Baron Clarke says, in a third case, " an

count

the

In the Exchequer, an Account of

the time of bringing the Bill

up

is

Bell v. Read, 3 Atk.

4 Bro. P. C. p. 314.Gwil-

lim, p. 730.
Vid.
Lvgon and Strutt,
2 Anstr.001. Baker and Athill,
2 Anstr. 493.

EQUITY JURISDICTION.

35

By
it

is

the 3?th

Henry VIII.
M that

directed,

the city

doubt

?.

19 and 20.

any variance

if

arise in

non-payment of Tythes, or

for

arise

ch. 12.

upon the division of any

any

if

or

rent,

Tythes. or of any assessment thereof, or upon any

other thing contained in this Decree, upon com-

made by the party

plaint

grieved, the

Mayor by

the advice of counsel shall call the parties before

him; and make a

final

end with costs,

by the direction of the Mayor and

according to the decree

to

his assessments

Mayor make

but, if the

be awarded

not an end thereof within two mouths, or

if

any

of the parties find themselves aggrieved, the Lord

Chancellor, upon complaint

three

made

months next following,

in the

same with

to

shall

But

costs."

him> within

make an end
this particular

Jurisdiction thus created did not extinguish the

antient Jurisdiction,

of Parliament

being a Rule that an Act

it

creating

special Jurisdiction,

never ousts the Jurisdiction of Westminster Hall,

without special Words'.

The

right of a

to decree an

Ac-

at the suit of a

Per-

Court of Equity

count and payment of Tythes,

son claiming such Tythes, must, as before observed,

be grounded on
to

Tythes

a clear,

unquestionable, legal right

in the Plaintiff,, or in

Hard. 116, 130. Kinaston

Millar, 2 Dick. 773. and
garden and Minor Canons of
'

and

St. Paul's
jun. 583.

v.

2 Ves.
Warden,

Crickett,

and

vid.

&c.

some person

of St.

Paul's

v.

in

Morris,

9 Ves. 155. and Antrobus and

East India Company, 13 Ves. 9.
* Strut*,
v.
Baker, 2 Ves.
jun. 028.

ACCOUNT.

87

Trust for him; theright to the Accountbeiog merely

consequential to the legal right to theTythes': and

Courts of Equity have, therefore, constantly made

a distinction

between those eases

Title of the Plaintiff, to the

generally disputed

as

Tythes claimed,

where

is

the

not

objected only,

it is

Lands from which they

that the

which

in

arc claimed arc

exempt, or discharged from payment of Tythes,

or that the Tythes

but are to be satisfied

kind,

and those cases

Tythes claimed
Title

in

not payable in

some other man-

by payment of a modus, or composition

ner, as
real

claimed are

set

is

up

which the Title

in

is

denied to the Plaintiff, and a

in

another Person.
the

description of cases,

In the

or real

first

Defendant claiming

the benefit of an exemption or discharge,

modus

to the

or of a

composition, acknowledges

original Title of the Plaintiff, as all edged

the

by him,

but qualifies that Title either by an absolute

dis-

charge from payment of the Tythes demanded, or

by

a right to satisfy that

demand, otherwise than

in kind.

In the second

description of cases-, the existence

of that Title

by payment of the Tythes

to the

Tythes

claims,

is

in

question, which

Title

in
is

these cases

thus stated,

Tythes claimed, the

if

is

in

it is

some other Person:

the Person, in
has had

whom

the

pernancy of the

Bill is in effect

'lb. and see Foxcraft v.

5 Ves. 232. and vid.

Paris,

Plaintiff

absolutely and totally denied, and

objected, that the Title

and

the

an Ejectment

7 Bro. P. C. 110, 111. Tomlios'a

Edition.

EQUITY JURISDICTION.

SS
Bill,

and

to

is

be treated like

may

Equity, which

other Bills in

be termed Ejectment

regard to which, the ordinary practice

make any

not to

is,

decree whatever, except for the purpose

of assisting the Trial of the Title at

such Assistance

is

necessary

Law, where

111

If a Rector, Impropriator, or Vicar,

for

Bills, in

Tythes, they must waive

forfeitures"

under

all

the Statute

file

a Bill

penalties
for

and

otherwise,

the Defendant would not be bound to answer ; but

in a Bill for the single value of Tythes,

necessary expressly to waive the

it is

not

treble value

p
,

the praying of the single value being considered

as a waiver of the penalties.

no bar

is

at

Law, but only

terposition of a

Waiver
ground

in

Equity

for the in-

Court of Equity, which would

grant an Injunction against suing for the penalty,

as well

upon an implied Waiver,

most express
ro

upon the

q
,

Vid. Carnons v. Bernard,

P. C. 110. 111. Tomlins's Edition; Gwillim'sTythe
Cases, p. 1470.
1 Vern, 60.

7 Bro.

as

2 and 3 Edw. 6.
Wools v. Walley, 1 Anstr.
100 ; and see Bunb. 193,

1 Anstr, 100,

bD

FRAUD,

III. Fraud.

Till
by

ber,
lor

the abolition of the Court of Star-Chamstatute, (16 Car.

Chancel-

10,) the

I. c.

does not appear to have exercised any very

extensive jurisdiction, in cases of Fraud*. In the

Star-Chamber the

plaintiff

was not only

but the defendant was punished,

relieved,

for his fraudulent

conduct: so that recourse was generally had to

that Court, in cases of Fraud.

When

it is

considered,

actions in Civil matters,

what a

may

variety of trans-

be mixed up with

Fraud, every one of which, Courts of Equity have

a power of sifting to the bottom, through the

oath of the fraudulent

against,

party,

and of relieving

some conception may be formed of the

very extensive nature of the Chancellor's Jurisdiction on that

Before

most

fruitful

proceed

founded

cases
state

we

in

to

head of Equity.
the

consideration

actual Fraud,

with a view,

"SeeNott and
son 329.

to

prevent Fraud.

Hill,

2 Ch. Cas. 120.

The

1 P.

proper to

it is

the principles that have been

of

laid

down,

doctrine on

Wms,

310. I Wil-

VO

EQUITY JURISDICTION.

this subject

heads

may

be classed under the following-

Purchases by Trustees and

1.

situations,

others, in fiduciary

of Trust Property.

and

2.

Transactions between Attorney

3.

Sales or Agreements by expectant Heirs.

4.

Gifts by

Ward to Guardian,

h.

Injunctions.

6.

Bills of Peewc.

7-

Pills of Certiorari.

8.

Bills of Interpleader.

9.

Bills to perpetuate Testimony.

10.

Bills of Discovery.

] 1

Bills

Client.

n.

Quia Timet.

12. Bills for

securing them,

the delivery

or

up of Deeds, or for
up of specific

delivering

the

Chattels.
13. Bills to enforce Contribution.
14. Bills in Cases
1.5.

of Dower and Partition,

Bills to establish a

Modus.

16. Bills to nutrshal Securities,

These Subjects
sion.

will

be considered

in

succes-

pbevcsttox or niAun.

)1

Purchases by Trustees and others in fiduciary

situations,
It is a rule

of Trust Property.

of Equity, that a Trustee shall gain

no benefit by any act done by him

that such benefit shall
trust

Upon

With a view

as trustee,

accrue to his cestui que

and more especially

this principle,

prevent Fraud', a trustee

to

but

is

not

permitted to become a purchaser of part, or the

whole, of the Estate of which he

is

trusteed

Commissioners*, Assignees'' and Solicitors, under a

,

Commission of Bankruptcy, whether bidding

for

themselves or others, are within the operation of

and are not allowed to purchase the

this rule,

bankrupt's Estate.

So, too, a

Committee

allowed to purchase the Lunatic '* Estate

f
;

is

not

nor,

it

seems, can an Executor purchase his Testator's

Effects 6 .

Governors of a Charity,

reason, are not allowed

Charity Lands

h
;

and the rule

Principcd and Steward

for

the

take leases

to

is

of

same
the

applied as between

and also, to an Agentfy

but not as between Mortgagor and Mortgagee 1 .
'

See

Holt

Holt, 1

v.

',

b
1

G Ves. 632.

Vern.
465. Ex parte Reynolds, 5 Ves.
707. Ayliffev. Murray, 2 Atk.
09.
d
Ex parte Hughes, C Ves.
6J7.
v

Bfeeres,

v.

12Ves.

6.

parte

'

Laeey, G Ves.
627 York Buildings Company
y'. Mackenzie,
8 vol. Bro. P.
C. p. 42. Toinlins's Edit.
'

l-x

Burden

v.

Burden, 18 Ves.

170.

Lister v. Lister,

Heme

Ch.

Cas. 191.

Anon. MS.

Attorney Gen. v. Lord Clarendon, 17 Ves. bO<K

Ormond v. Hutchinson,
13 Ves. 47. Beaumont v. Boultbee, 5 Ves. 485, 7 Ves. 599.
11 Ves. 358.
k
Lowther v. Lowther, 13 Yes.
95. Watt v. Grove, 2 Sch. and
'

Left.
v.

492; but KeGarthside

Isberwood, 1 Bro. C. C. 558.

See what is said in 2 8 1.
'

and

LclV. 673,

EQUITY JURISDICTION.

Q-L

Lord Hardwicke,

Whelpdale and Cookson,

in

determined that a Trustee could not even buy

a Sale by

Auction*

that decision

The

reason

at

and Lord Eldon has followed

'.

why

Trustees are not allowed to

purchase the Trust Property, seems to be, because,

from their situation, and the knowledge

ena-

it

them to acquire, they may be induced to

commit a Fraud upon their Cestui que Trust.

bles

Nor

is it

necessary, for the purpose of invalidat-

such purchases, to shew, (as was unnecessa-

ing"

rily

111

done

in a great case",) that the

Trustee has

made an advantageous purchase or that there

was Fraud '. Lord JRossli/n, it seems, was of a
but according to the more
different opinion q
recent and approved doctrine of Lord Eldon^
,

whether the Bargain be advantageous or not, the

Sale is, in every instance, bad
for if a Trustee
;

can buy in an honest case, he

ing that appearance,
firmity

Trustee

human

of
r

otherwise

reported to have said that

lord Hardwicke in Whelpdale

and Cookson, " intimated an
opinion that a Trustee might

by Auction;"
but in this he must have been
unreported,
because Lord
Hardwicke in that case expressat a

Sale

ly decided

h*t

hav-

is

could not.

m See

in-r

grossly

the Court of a

advantage of his situation

Sanderson
v.
Walker,
13 Ves. (502. In Ex parte Bennett, 10 Ves. 393. Lord Eldon

buy

may be

testimony,

So very jealous

taking

in a case

but which, from the

1
1 Ves. 9. and see Decree in
that case in 5 Ves. Jun. 6S2.

i->

may

Ex

to

parte Lacey > 2 Bro.

C. C. G27.
n
Fox against
2 Bro. C. C. 400.

Ex

Macreath,

parte Bennett, 10 Ves.

393.
p

Whelpdale

v.

Cookson,

1 Ves. 9.
q See lb. 385. 395.
and Ex
parte Lacey, 6 Ves. 627.
r
Ex parte Bennett, 10 Ves.
385.

riiEVENTlOK OF FRAUD.
benefit himself, that

93

has been held that, a Trus-

it

tee could not even purchase, for his

own

Property which the owner refused to

where there was

Cestui que Trust. As,

benefit,
to the

sell

Church

Lease, and the Trustee applied for a Renewal,

and the Lessor declared he would not renew for
the benefit of the Cestui que Trust, and thereupon,

Trustee purchased

the

(and without objec-

it,

point of morality) for

tion in

but the Court, considering

own

his

how

little

has of obtaining; a complete discovery in

held, that the Property should be

benefit;

power

it.

cases,

all

thrown back

to the Lessor rather than the Trustee should have

it

nor could the Cestui que Trust,

such circumstances,
If on a

will not

beset aside

But though the

it is

*.

found to be

Infant Cestui que Trust that

the Purchaser should be

it

seems, under

on having the Lease

insist

Purchase by a Trustee,

for the benefit of an

it

held to his Purchase,

v
.

rule be that a Trustee cannot

purchase from himself, he

is

from his Cestui que Trust,

allowed to purchase
provided there

is

and clear contract, ascertained to be such,

a jealous and scrupulous examination of all

distinct
after

the circumstances, and

there

is

no Fraud, no

concealment, no advantage taken by the Trustee,

of information acquired by him in the
of Trustee
5

v.

lb.

395; and see Brewett

MUlett, 7 Bro.

Toirilins's Edit,
v.

Dixon,

ib.

'Seethe
Lefr.

P. C. 3fi7.

and Annesley

213.

case,

p. 131.

character

r/

Sch. and

v
Sanderson
v.
13 Yes. (*)3. Lister

Walker,
v.

Lister,

6 Ves. 031.
w
Coles
and Trecotliick,
9 Ves. 246. approved by Lord

EQUITY JURISDICTION*.

91

If an Estate be vested in Trustees for Sale

benefit of an

the

Infant, and

Trustee

the

desirous of becoming a Purchaser, he

a Hill, for the

for*

may

is
file

purpose of carrying- the Trust into

Execution, under the direction of the Court, and

upon the Sale, apply to the Court

become the Purchaser, upon offering
than any other person

From many

cases,

to give

more

x
.

Transactions between Attornies

2.

for leave to

it

and

Clients.

appears that, Attornies are

not allowed to deal with their Clients upon exactly

the

same terms upon which men

deal with each other

large

may

Transactions liable to no

objection as between

at

Man

and Man, have, when

between Attorney and Client, been overturned,

on account of the danger from the influence of
Attornies or Counsel over Clients, while having
the care of their Property; and whatever mischief

may

arise in particular caseSj the

Law, with the

view of preventing public mischief, says, they

shall take no benefit derived under such circumstances.
if

If the Relation has compleatly ceased,

the influence can be rationally supposed also to

cease, a Client

may

be generous to his Attorney

or Counsel, as to any other Person

Knskine, in Morse and Royal,
12 Ves. 373. Vox v. Macreath,

2 Bro.

C.

S&undersoTJ

Ml.

400. and see

Walker, 13 Ves,

C.
v.

Campbell

v.

Walker, 5 Ves.

v.

Payne, 2 Ves.

681.
"

Newman

Jun. 201.
b
Wells and

Middleton, 4

PREVENTION OF FKAUD.
It

different

is

95

where the Attorney

is

also

Relation ofthe Client, and the Client from motives foreign

his character

to

of Attorney, and

from a view to prefer him to other Relations,

makes a conveyance
case,

supported

will be

it

to the Attorney, for in

may make

Client

Attorney or Agent'

voluntary

and

if

set aside

to his

gift

unaffected by fraud,

misrepresentation, or circumvention,
1

it

cannot he

but in such cases, third persons ought,

from motives of delicacy and prudence,

called in

for if not,

a suspicion attaches

the transaction, and so

of Equity will always

where such

a transaction

ceedings

Equity

An

such

in

give
is

so, that

party

be

upon
Court

his costs,

enquired into by pro-

may

Attorney

much

to

purchase of his Client, but in

such case the Attorney, to support his purchase,

must be

able to

shew

that he paid the full

amount

he could have obtained from any other person 8

The same Rule prevails, in a Sale by an Attorney
.

to his Client

\
Wood

Bro. P. C. 20, 245.

v.

Downes, 18 Ves. 127. Oldham

v. Hand, 2 Ves. 259; and ste
ik'llew v. Russell, 1 Ball and
Entity, 104.
s
Bellew v, Russell,
d

\ id.

W.dmesley

2 Atk. 30.
e
See Cray

v.

ib.

Booth,

Mansfield,

Ves. 37?'. Oldham v. Hand,

2 VVs. 209, 549.
'
Harris v.
Treemenhere,
p.

C Ves. 277. What is said as to

an attorney in Morse v. Royal,
12 Ves. 378. and in Wright
and Proud, 13 Ves. 138. do^s
not seem warranted by the
authorities.

v.

13 Ves.

Huguenin and Basely,

14 Ves. 800 ; Gibson v. Jeyes,

see

12; S. C.

MS. and

s
Harris v. Tn-emenhere,
15 Ves. p. 42. S. ('. MS.
h
Gibson and Jeyes, G Vei.

278.

EQUITY JURISDICTION.

QG

If an Attorney pendente

doing Business

or whilst

lite,

his Client, prevails

for

to give a Security, or to agree to

reward, the Court will interfere'

lie

is

upon him

an exorbitant
for

no Attorney

own benefit, pending

As a Guardian cannot
the suit, save his demand
take any thing from his Ward pending the Guarcan take any thing, for his
k

dianship, or at the close of

or at any period,

it,

until his influence has ceased to exist; so, the obli-

gation upon an Attorney, to refrain from taking

an extraordinary benefit

is

at least as strong

L
:

nor

will a subsequent act be considered as a confirmation of the Transaction,

unless

it

be separate and

detached, and not done under the force, pressure

and influence of the former Transaction

111

In a case where a Client had given an Attorney a

Bond or Mortgage

to secure the

of what was charged to be due to

of a

Law Suit,

payment

him on account

the Court relieved the Client, and

ordered the Bill to be taxed

on the ground of

the great power and influence that an Attorney

has over his Client

n
.

But though there

eight

where the Court

the taxation of an Attorney's Bill,

has ordered
after

are cases

seventeen

p
,

or

twenty-one years,

and an actual Security given, and even payment

*

Saunderson

v. Glass,

2Atk.

298.
k

Wood and

Dowries, IS Ves.

120. Wells and Middleton,

4 Bro. P. C. 26. 245.
1
18 Ves. 127.
m lb. 128. and see 2 Sch.
and Left. 474.

Walmesley v. Booth, 2Atk.

Newman v.
See also
Payne, 2 Ves. Jun. 199. S. C.
4 Bio. C. C. 350 j and see
Lewis and Morgan, 3 Anstr.
709.
Aubrey v. Popkin, 1 Dick.
403.
p Drapers Company v. Davis, 2 Atk. 295.
30.

TMIKVENTION 0*
yet

amounting

errors,

may

the Bill gross

The

llnle,

it

he

q
,

has been observed,,

the sake of Clients, be earned too

not, for

and so

in

imposition and fraud

to

be relieved.

must
far,

can point out

the Client

if

97

FliAUl).

prevent professional Gentlemen

as to

undertaking long

and expensive

ease, therefore,

considered upon

is

Every

suits.

own

its

cir-

cumstances, and a temperate and just consideraand where nothing

tion applied to each case
*

appears but a

trifling-

inaccuracy, the Court

\.

not set aside a Security given by the Client".

by expectant Heirs,

3. Sales

Are, with a view to

different light from Sales by other persons.

in a

The Heir of a family

that Family,

in

prevent Fraud, considered

is

dealing for an Expectancy

distinguished from

cases; and an unconscionable bargain

him,

oidinary

made with

not only looked upon as oppressive

is

in

the particular instance, and therefore avoided, but

as pernicious in prineip! -, and therefore repressed.

In

therefore, of this

cases,

description,

and

in

Drokage Bonds. Fraud is not the

Relief; it is the example and pernicious

cases of Marriage

ground

ol"

Consequences'.
Heirs, the Court
of mischief to

And

in these

cases of

upon general Principles

the Public, without requiring parrelieves

ticular evidence of actual imposition

Lord Nottingham seems,

Cooker.

Setree, 18 Yes.

127.
r

in

>b.

v.

lb. p. 120.

'

G wynne v.

C. C.

10

VOL.

I.

&c.
Ikuton,

and

see

one such

Cully,
v.

'

young

Gibbons,
v

Uro.

Brook

2.UL.

Liircood, 2
:i

II

case, to

v
;

have

35, BafrnardiAton

Atk. 135. cole

1'.

Walmesley

2 Atk. 28,9.

v.

upon them

\Vtos. -293.
v.

Jiootli,

EQUITY JURISDICTION.

9S

but Lord Jeffereys, on a rehearing,

reversed his decision w and his decree being;

denied relief

considered as just, and as discouraging a growing

practice, of " devouring

an heir," to use Lord

no attempt was made in

Cowper's expression,

Parliament to reverse

In another case, how-

it*.

Lord Nottingham seems to have agreed

with the doctrine of Lord Jeff'ereys 1 On these
Principles, where a Son, who after his Father's
ever,

death, was a remainder-man in Tail, sold his re-

mainder, at an under

expectancy may be

but the Court

Vendee

was

it

set aside

sold, provided

An

z
.

fairly sold

it is

young Heirs says, the

the Bargain was a fair onea

in favor of

shew

shall

rate,

that

Indeed, Lord Hardwicke has expressly said that,

undue advantage of an Heir's being

the taking

'

in distressed

and necessitous circumstances

the principal ground of these Decrees

Inadequacy

who

sons,
is,

more

stand upon a precisely equal footing,

its

grossness

it is

of

at large hereafter,)

in regard to

ground

itself,

(as will

Evidence of Fraud

Inadequacy,

for setting aside the contract

Berney

be seen
but

expectant Heirs, any thing that can

v. Pitt,

2Vern. 34.

Twisleton v. Griffith, IP.

Wins. 311, 212.
y Nott v. Hill,
1 Vein. 1G8.
dismissed on a re-hearing by
Lord North, hut Lord Notting ham's decree affirmed on a
rehearing by Lord Jeffereys,
2 Vera. 27.
' Twisleton v.
Griffith, 1 P.

Wms.

between Per-

Consideration

substantially be considered as

is

."

Courts of Equity, of no account, unless

in

from

of

310; and see

Wiseman

c
;

and

in

is

such

Beake, 2 Vem. 121. where

v.

Nephew, near

forty

years

was the remainder-man.

a
See what is said in Coles and
Trecothick, 9 Ves. 246. and in
Evans and Cheshire, MS.
old,

Barnardiston

v.

Lingood,

2 Atk. 134.
c
Peacock v. Evans, 16 Ves.
517 and see Gowland and,
:

De

Faria, 17 Ves. 24.

PREVENTION
case the conveyance

FUAUD.

OI'

set aside

is

99

on payment of

Principal, Interest, and Costs, the defendant being

considered as a Mortgagee

The tendency
der

all

cure,

of these deterniinations to

ren-

expectant Heirs very inse-

Bargains with

if

not impracticable, seems not to have been

considered as operating

and establishment

prevent

to

adoption

its

but, on the contrary,

some

Judges have avowed that probable consequence,

being to

as

Doctrine

them,

recommendation

of the

6
.

In most of these cases, deceit and illusion on

third persons, not parties, nor privy to

dulent Agreement, have concurred

Ancestor, or Relation, from

the Father,

whom was the

been kept

tation of the Estate has

the frau-

in the

expec-

dark

and

the Heir or Expectant has been kept from disclos-

ing his circumstances, and resorting to them for

have tended to his relief and

advice-which misrht
Q
reformation. This misleads the Ancestor,

who

been seduced to leave his Estate, not to

his

or Family, but to a set of artful persons

divided the spoil beforehand

It

has

Heir

who have

f
.

has also been determined that,

if

Tradesmen,

on various occasions, impose upon an expectant

Heir, by selling at

extravagant

of Equity will relieve

if

but

it

prices, a

Court

might be otherwise,

there were only a single instance, of a purchase".

d

See Gowland

Ws.

17

andDe

Faria,

2JJ.

v
Per Master of the Rolls in
Peacock v. Evans, 16 Ves.

fI4,
1

515.

Chesterfield
2 Ves. 157.

e
See Bill v. Price, 1 Vern.
v.
Smith.
407.
Lami-ilugh
2 Vern. 77. Whittey v. Price.
2 Vern. 78. Brooke v. Gallev,

2 Atk. 35.
and Jansen,

h2

EQUITY jurisdiction.

100

some of

In

where

taken,

from

the cases,

Heir

the

and

his Father,

distinction

is

has been

has

no

maintenance

turned

out.

upon unrea-

sonable displeasure taken by the Father; in which

Bargain

case, if the

not excessively beyond

is

the proportion of insurances for such risques, such

Bargain

allowed to stand, because

is

to supply the

but

Luxury and

would have

Seller

lost his

had died during the

in

in case the

Heir

of the Father, he ought to

life

for

such

hazard'

relieving an Heir against fraud, does

not consider whether the

comes

not

and since the

money

have a proportionable benefit

The Court,

is

Prodigality of the Heir,

keep him from starving

to

it

Estate

expectancy

in

him as heir to his father, and by descent,

or from any other relation
but the rule which
directs in such case, is the necessity that young
to

most

heirs are in for the

lays

them

Where an

open

extravagant price

and

may

be relieved so

mortgage

quantum

is

is

but

meruit,

it

verdict

for

so

after

is

it

the Heir

determined,

what was the

much

it,

stands as a security

of the goods, the mortgage will

upon the Heir,

kind.

charged for goods

taken to secure
as

far

for the unjust gain

upon

impositions of this

to

sold,

which naturally

part,

as

still
is

real

worth

be binding

found by the

'.

APostObit given by an Expectant Heir, has been

k
but if afterwards, on the death of the

held bad
h

Sir

Robert.Jason's case, Lex

Pretoria, MS. Nott and Hill,

2 Ch. Cas. 120. Barney and
Blake, ib. 130. but see *1 B;o.
C.C. 10.

'

Freeman

v.

Bishop, 2 Atk.

39. S. C. Barnard. 10.

k
Varnee's Case, 2 Freed*
03.

PREVENTION OF FRAUD.

101

person upon whose decease the Post Obit

able, the transaction

firmed,

cannot

it

is

pay-

without imposition, con-

is,

he set aside

had, except as to the Penalty

nor can relief be

ment may confirm what was

for

anew

Agreedoubtful

at first a

Bargain, though

it

could not a void one', but

the confirmation

is

not freely given

it is

Obit

whose Life

been assigned,

bo

the Obligor

die, as well as the

person

it

will not

be set aside, no proof

.

influence,

exercised in the case

4.

Where

and

was given, and the Bond has

The same protective

is

given,

it

of imposition appearing

Fraud,

not an effectual con-

Post

and Obligee of the Bond

<>n

if

the Party

firmation
If a

if

under the influence of

be poor, or distressed, or
the former transaction,

to

prevent

of,

Guardian and Ward.

Man

acts as Guardian, or Trustee

in

nature of a Guardian, for an Infant, a Court of

Equity
person

is

Ward

his

at the time
f!ie

Trust;

taken.

extremely watchful to prevent such

taking any

It

flattery, or

advantage immediately upon

and
delivering up

or Cestui que trust, coming of age,

of settling his account, or

because an undue advantage

would give an opportunity, either by

by

force,

by good usage unfairly meant,

imposed, to take such advantage:

or bad usage

v. Janson,
Chesterfield
S. C. 1 Atk. 301.
"Seel Atk. a-34 an. 1 see
1

2 Ves.

fcile

294.

v.

may be

Gibbon

s,

3 P Wins.

* Clowe v. Ballard, 1 Ye?.

jun. 215. S. C. :) Bio. C. C.
117.

Hill v. CV.llord, 1 Yes.

123.

EQUITY JURISDICTION.

102

and therefore the Principle of the Court

the same nature

with

on the head of public

is

of

Courts of Equity

relief in

Bonds obtained from young Heirs, and Rewards given to

utility,

as in

an Attorney pending a Cause, and Marriage Bro-

kageBonds. All depend on public

Court

fore the

will not suffer

in a particular instance,

unfairness

The Rule

1'.

tive of hardship

as

and the

Trouble,

and honestly
blished

it

in

though perhaps,

may

not be actual

some

cases, produc-

there
is,

it,

utility ,and there-

where there has been great

Guardian

has acted

but Courts of Equity have esta-

from a persuasion of

its utility,

necessity, and on the principle that

of humanity that one

every

Man owes

it is

a debt

to another, as

Man

is

If,

however, the Ward or Cestui que

comes of

age, and after actually being put

possession of his

into

and on

liable to be in the same circum-

stances
trust,

fairly

Estate, thinks

fit,

when

and at Liberty, to make a reasonable

by way of reward for care and trouble, and

sui juris

grant,

does this with his eyes open,

will not set

Courts of Equity

such Gift aside; but the Court

will

not permit a Gift, at the very time of accounting-

and delivering up

the Estate,

terms of doing their duty

making

that the

r
.

Conveyances of this description have been

aside not only by the Ward himself, but
p

Hylton

v.

Hylton, 2 Ves.

Sen. p. 547.
'lb. p. 540.
r
See lb. p. 540. Cray v.
Mansfield, 1 Ves. 370. Griffin
and De Veuille, 3 Wood. Lect.

set
his

in Appendix, p. 18.; and see

what is said in Wright and,
Proud, 13 Ves. 138. and in
Wood and Downes, 18 Ves.
127. Smith v. Moone, MSS.

PREVENTION OF PtlAUD.

103

Representatives", and after great length of time

On

these principles,

made by
upon

his

Ward

to

where a Gift of Stock

vrtt

Guardian, immediately

his

coming of Age, and before

had delivered over every thing

Deed

his

to his

Guardian

Ward,

the

of Gift was decreed to be delivered up to be

The Guardian insisted that the Gift

him was as a Reward for his trouble as Guar-

cancelled.
to

dian, but this

So, where a

Defence was not admitted

Husband

Marriage cove-

before his

nanted to release his Wife's Guardian of

counts

this

was held not

to be binding,

said to resemble a Marriage

all

ac-

and was

Brokage Agreement

In like manner, a voluntary Grant of an

r
.

An-

nuity by a Ward, a year after he was of Age, to

Guardian, at the

his

time when the Guardian

pretended to come to an Account and deliver up

was

the Estate to the Plaintiff,

The Lord Keeper North

set aside

said,

w
.

Release

that a

came of Age,
by the Guardian, should never by him be thought
a trick, but that it was the proper time for such
obtained, as soon as ever the Heir

a Release; but Finch said,

wise

5.

Injunctions.

Injunctions are in

general granted to prevent

Fraud, or Injustice, and

this

may be

classed

under

head of Equity.

2 Ves. 547.
Hutch v. Hatch, 9 Ves.

29-2.
u

had been held other-

it

Pierce v. Waring, cit.

2 Ves. 547, 549.
* Duke of
Hamilton aud Ux.

Lord Mohun,

v.

1 P. Wins.

118.

Hylton

v.

Hylton, 2

547.
*

Anon. Skin. 148.

Vcj.

104

EQUIT y JTJniPDTCTION.

The

Jurisdiction of the Court as to Injunctions,

has been considered as a most useful one; with-

out which, the benefit of an Equity, against proceedings at Law, could not be had

may be made

use of as

handles

Law,

obtaining justice at

it

the duty of the Court to

but as they
delay the

to

has been thought

the abuse of that Jurisdiction

possible,

much

prevent, as

as

Injunctions are discretionary, and granted

All

Of

upon the circumstances of the Case z

years, they have been allowed much more
.

liberally

than formerly

An

late

Injunction, however, can only be obtained

against a Party to the suit; and in the ordinary

in the ab-

case of an Injunction alter a Decree,

no one appearing

sence of a Creditor,

for

Counsel, which might make a difference,

he could not be proceeded against

is set

by

for,

forth

ting or

seems

it

breach of

Injunction-

prayed

as

the Injunction

An

for a

him

is

a prohibitory Writ,

a Bill in

which the

specially

Plaintiff's Title

restraining a Person from commit-

doing

an-

Act,

(other

than

criminal

which appears to be against Equity

Sometimes the Injunction preor Conscience
Acts

,)

cedes,

sometimes

and

Decree.

It

may

Travers

v.

JLowl

the Circumstances

Stafford,

2 Ves. 20.
z

Potter against

Ambl. 99.
1
Hanson
;J07.

to

Chapman,

Gardener, 7 Ves.

of the

Iveson v. Harris, 7 Ves.

257,8.
c
Mitf. Pleading, p. 124.
d

v.

subsequent

be obtained at various stages of

a suit, according to
7

is

it

See <> Mod. 16.

3 Bacon's Abr. C48.

PHEVXNTION OF FKACD.
If

the Injunction be wanted to slay waste,

other Injuries of an tqiutlly urgent nature, upon

on

the filing of the Bill, and an

e

1 1

103

will

verifying

Affidavit,

urgency and necessi ty oE the Case, the Court

00 Motion made,

In fore

the service

Subpama, and without Notice

Party % or

of the

opposite

between

Vacation, or

the

in

if

the

to

the

and Certificate

Seats, on a Petition and Affidavit,

of'the B>11 Bled, grant an Injunction immediately,

to

continue

defendant has put

the

till

answer, and the Court shall

Order concerning
the Defendant

it.

When

may move

tion, and the Court

make some

the answer

in

his

further

comes

in,

to dissolve the Injunc-

on such Motion order

will

the injunction to stand dissolved at a short day

fixed by the Court, unless cause

contrary, and whether

or contbiued

is

shewn

shall then he

it

to the

dissolved

the hearing of the cause

is on
such day determined by the Court, upon Arguments drawn lioin considering the Answer and
till

if no cause
is shewn, then,
upon Motion, and an Affidavit of the due service

Affidavit together, or

of the Order, the order for dissolving the Injunction will

be made absolute

ters of Practice,

and

when we come

to

will

but these are neu-

be more

treat

i\)\\\

considered,

of the Practice

of the

Court.

An

Injunction

is

'
An Injunction against
waste wtU begranted, though
the defendant appeal tre uay
before the motion, Aller v.
Jones, 15 Yes. p. GU5. Pei1

may be

proper, and

haps
where

might he

i*

different

had appeared Ion"

to have gfrahled the

lie

enough
plaintiff
iL>.

obtained,

to give

notice.

See

LQC^ITY JURISDICTION.

1UO
in

the following cases:

To stay proceedings

1.

in other Courts, as in the Exchequer, the Spiritual

Court,

or Court of Admiralty, or to stay proceed'

Law

To

restrain the

In-

fringement of Patents ; 3. To stay waste;

To res/rain the Sale of Books, Printed Music,

4.

ings in a Court of

2.

or

Prints; 5. To restrain the Negotiation of Bills of

Exchange, Notes,
(i.

To prevent

the

fyc.

or the Transfer

of Stock

committing of Nuisances. These

which Injunctions are

other occasions, in which

are the principal cases in

granted

but there are

they are granted, not classable under those heads,

but which
1

As

however, be considered.

will,

an Injunction

to

to

And,,

stay Proceedings in other

Such Injunction may be obtained where

a concurrent Jurisdiction, or where
there is
something is suggested which affects the equiCourts.

table right of the Party in the Proceedings in the

other Court.

Where two Courts have

same

rent Jurisdiction of the

Suit

entitled to retain the

menced, and
proceeding
It has,

brought
fendant

a concur-

thing, that Court is

in

may enjoin any

which

it

com-

is

other Court from

in the Suit.

however, been decided % that

in the

may

Exchequer

file

if

a Bill

to foreclose, the

a Bill in the

is

De-

Court of Chancery

to redeem, and that a plea" of the former Suit can-

not be sustained.

bad;

is

It

may

be true that such Plea

but the Court of Exchequer, perhaps,

might on application have given the Party

by means of an Injunction.
1

Earl of

Newburgh v. Wren,

Vern. 220

relief

PREVENTION OF FRAUD.

So

l(/7

those Cases in which the Court of

in

Chan-

cery and the Spiritual Courts have a concurrent

the Court of Chancery will

Jurisdiction,

some exceptions

(with

mentioned,) hinder
possessed

first

in

it

that

will

not

presently be

the Spiritual Court, being

of the

from

Suit,

proceeding

b
.

If a Suit

is

instituted in the Spiritual Courtfor

and a Modus

Ti/thes,

is

up

set

as a defence,

Court of Chancery or of the Exchequer

an Injunction to stay proceedings

Court

but

if

a Suit

is

thr>

will grant

in the Spiritual

there instituted

for

sub-

and the Defendant brings a

traction of Tythes,

Modus, and on the bare susrModus, moves for an Injunction to

Bill to establish a

gestion of a

stay the proceedings in the Ecclesiastical Court,

will not be granted.

admitted, the

is

If,

Modus but \( denied,

;

cannot proceed, propter

where a
Court

Bill

Modus pleaded
Court may then

indeed, the

Ecclesiastical

proceed upon the

in

Court
but

the Ecclesiastical

Modusses, some of which the

Defendant admitted, and denied the

part, the

that

iriationis defectum'-,

was brought

to establish

it

rest

and

greatest

Court of Exchequer granted an Injunc-

tion*.

The

Court' of Chancery will, on a Bill

grant an

Injunction

stay a Uusba?id

Prec. Ch. 5 10.

1 Fowler, 311;

176.

to

the Spiritual

proceedings

seeBunb.

in

filed,

Court, to

Court

that

to

Bunb. 170.

Kothtrain
3 Atk. 027.

>.

Faushaw.

equity jun IsniCTlON".

10S

gVm

obtain a Legacy

to his

Wife; because that

Court cannot oblige the Husband

to

make an

adequate Provision or Settlement on his Wife, as

the Court of Chancery will
before

it

him

will permit

"Where a Suit

oblige

to receive the

instituted

is

him

the

in

do,

to

Lcgacy

f
.

Spiritual

Court for an Infant's Legacy, by a Father, the

will grant an Injunction,

Court

not allow the

Money

Father's hands.

It

because

of an Infant to

come

will

it

into the

does not grant the Injunction,

because the Spiritual Court have not a Jurisdiction

in

or, as

all
it

it

p.

takes of Infants

In

but from the general care

Legacies,

Cases of Legacies, where there

is

a Trust,

has been said, any thing in the nature of a

Trust, the]

Court of Chancery

will grant an In-

junction, Trusts being proper only for the Cogni-

zance of that Court

An

h
.

Injunction to stay proceedings in the Ad-

miralty Court, in a Suit for the condemnation of

a

Ship, on the ground that a note

had been ob-

tained by duress from the Captain, acknowledging

the Right of capture, has been refused, as the Court

of Admiralty has sufficient Authority to investigate the circumstances

An

Injunction

may

'.

likewise be obtained to stay

proceedings in a Court of Law.

f
see also
Pr^c. Ch. 54S
Meal v. Aleal, 1 Dick. 373.
Anon. 1 Atk. 491.
g Rotheram v.
Fanshaw, 3
Atk. 029.

Such Injunctions

Anon.

Atk. 491

see

ulso 1 Dick. 98. Sionehouse

2 Dick.
Stonehouse,
Smith and Keinpson.
Anon. 3 Atk. 350.
'

v.

7b9.

PREVENTION OF FRAUD.

1")

under the Seal of the Court,

issue by the order arid

noton Account of any Supremacy which the Cour

assumes over a Court of Law, but

ma Court

Jurisdiction

in

respect of its

of Equity, by which itcon-

troulsthe Parti/, and not the Court, from proceeding

at

Law k

The Court of Chancery

in these

admits the Jurisdiction of the Court of

Law; and
junction,

the ground on which

Common

issues

the In-

making use of

that the Parties are

is,

it

cases

lie

Jurisdiction contrary to Eqlfity and Conscience

Such Injunctions
Trial, or after a

Judgment

Verdict to

if

or

to stay

Judgment, or

after

or proceedings

Execution has taken

if

Money

stay the

Sheriff; or

sta}^

Execution,

stay

to

under an Execution"
place, to

sometimes used

are

the hands of the

part only of a

in

Judgment Debt has

been levied by a Fieri facias,

may

it

issue to re-

out of a Capias ad satisfaciendum.

strain the suing

And where

such Injunctions are prayed by the

Bill, there

commonly

that the

is

Complainant

therein stated, to

is

make

Court, though he hath

a suggestion in

not able, for

good discharge

the

the

as

id

other

Equity,

Law

or that the other party proceeds at

make

such

some reasons

his defence in

penalty, and threatens to

it,

for a

Complainant

pay, or that the other Court has not jurisdiction of

the Court where

the cause, which

is

he

or that the other

files his

k
See what
630.
1

1 1

"

ill

^ec

Bill,

is

said,

v.Turner,

cognizable

Ark.

A.tk.516.

Lady Arundel and

in

Phips,
against
7;J.

Court refuses

10 Ves.

Woden,

\i

144.
Code*
Bro. C. C.

EQUITY JURISDICTION.

110

some

him

rightful advantage, or does injustice to

in the proceedings, or has not

power to do him

right".

In the Exchequer, an Injunction stays

ceedings in whatever stage they are

so in Chancery; for there,

if on

but

all

Pro-

it is

not

a service of the

commenced

Injunction the Defendant hath not

Action he cannot sue out Process

if

his

he hath, but

not served the same, or in case he hath, but hath

any Declaration, he cannot

not delivered or

filed

proceed; but

there has been a declaration,

may

if

call for a Plea,

ment, or

if that

may

tained, he
if Error

the cause

if

and

Trial,

and

want of

for

is at

it

Issue, he

he

sign a Judg-

may go on

to

hath been had and a verdict ob-

proceed to Judgment and affirm,

hath been brought; but

if

Judgment hath

been executed, and Debt and Costs levied thereon,

the SherifTcannot pay the same to the Defendant,

Execution being stayed,

order

till

Answer and

further

Where

a Defendant

ground

special

from him
granted

p
;

is

to

shew

is

abroad, there must be

that the discovery required

material, before an Injunction will be

nor will an Injunction be extended to

slay Trial just at the time of the Assizes, unless

the PlaintifTwill give Security for the Costs q .

It is

not necessary to state in detail,

rious occasions in
nPrac.

R eir.
vol.

Wyatt's Edit.

Hind,

those va-

which a Court of Equity

p. 232.

Seel

all

p. 222.

inter-

p Revet against Braham,

Bro. C. C. 640.
" Blacoe
Ves.454.

v.

Wilkinson,

2
13

PREVENTION OF FKAUD.
teres

by Injunction

It is a general

to restrain

Ill

Proceedings

Law.

at

Rule, illustrated by an abundance

of cases, that wherever a Party by Fraud, Accident, or otherwise, has an advantage in proceeding

Court of ordinary Jurisdiction,

in a

necessarily

make

Injustice, a

Court of Equity,

that

Court an

which must
Instrument of

to prevent a manifest

interpose, by restraining the Party

wrong, will

whose conscience

is

thus bound, from using the

advantage he has improperly gained".

those cases of Accident, Mistake,

which have been dilated upon, and

table relief

would be

is

restrained;

be considered.

in the

Law

in respect

riffht

Court of Equity,

will be granted

for instance,

gene-

Fraud which will hereafter

In short, wherever a legal

ceedings at Law,
If,

Account,

which equi-

in

and so he would

relieved against in a

an Injunction

or

afforded, a party proceeding at

rality of those cases of

would be

In most of

to restrain

pro-

of such legal right.

aBond, Promissory Note, Policy

of Insurance, or the like, has been unfairly procured,

Injunction

ceedings at Law.

was contrary

may be obtained against proAs where the Bond or Note,

to the Policy of the

as for bringing about a Marriage

was obtained

for

Money won

at

',

Law, and void

or where a

play

5
;

Note

where,
, or
on a Policy of Insurance, the Life insmed was, at
'

See

Mitford's

Pleadings,

H6.

'3 Atk.

50(>.

See

|0Ves,

Cork
!"'

v.

Richards,

Anstr. 851.

v..

Aml>l.(>6.

Blackwood,

:}

EQUITY JURISDICTION.

112

time of the Insurance,

the

very different from what,

v

be

in a state

of Health

was represented to

it

and other multifarious cases of a similar

description.

So, likewise, the Court will enjoin Proceedings

in Ejectment,

where otherwise the execution of

Trusts decreed by the Court, would be overturned;

where the Court had decreed

as

Conveyance of an
brought

a Partition

Estate, so that an

and

Ejectment

tended to overturn the decree of the

Court *
So, a Bill will

lie

for

discovery, and an

In-

junction to stay proceedings, on the ground of a

Verdict obtained by Collusion and Fraud*.

Execution be issued

If an

separate debt

of one Partner against the Part-

nership Effects, a Bill

Partners, to take an

such Partner, and

time;

for

on Account of

may be

filed

by the solvent

Account of what

for an

is

due

to

Injunction in the mean

under such an Execution, the Creditor

only entitled to the Interest his Debtor has in

is

the Partnership

wound up,
And upon

are

Property

as hath before

been remarked.

same

if

the

principle

commission be issued against

an act of Bankruptcy, previous
of a

Foreign

See

vol.

Attachment by
Woodeson's

Ves. 29.
y Isaac v. Ilumpage, 1 Ves.
jun. 427. S. C. li bro. C. C,
40:j.

Baker

v.

'

;30G

heci. p. 410.
'

Hart,

Accounts

after the

separate

one Partner, on
to

the

issuing

a Joint Creditor

Taylor v. Field,
and see Dulton
;

4 Ves.
v.

Mor-

and see
17 Yes. 200
Barker v. Goodair, 11 Yes. 85.
rison,

PltEVENTION OF FRAUD.

113

may he
are wound

against the Joint Property, an Injunction

obtained,

the Partnership affairs

till

up \

Put

holden, that the Chancellor

been

has

it

has no Jurisdiction to stay, by

Injunction, the

made

Process of a Court of Law, upon an Award,

a Rule of Court under the stat. 9 and 10
c.

15

would be

It

Award were made

An

different, it seems,

the course of a

in

Win.

Cause

if

3.

the

c
.

may

be obtained to restrain the

Infringement of Patents.

As, where Persons get a

2.

Injunction

Patent and have been

the invention

of

in possession

it,

(a

Sale of

considered as possession,) an In-

is

junction will be issued against a Person invading

until the right

it,

Patent
bad,

it

good

is

Law; and

tried at

may be

Chancellor

the

is

d
.

doubtful

was

If he

this,

although

whether the

clear the Patent

was

seems he would not enjoin*.

Formerly, in

Patent, on opening

the case, the

the case of a

Party

was sent

and then came back

If a

Patent

for

Law,

to

for

to establish his right

an Account'.

an invention

will not extend

is

restrained to

There

England,

it

must be a

distinct Patent

under a distinct Great

Goodair, 11 Yes.

an Issue appears to have been

directed, hut no Injunction in
the mean time; and see. Hi U

Barker

v.

78.
D

Gwinett

v.

Bannister,

11

Vcs. 530.
lb. p
d

v.

532.

University ot'Oxford,

Venn

c
See Grierson y. Eyre, 9
Ves. 341.
r
Dpdsley against Kinnersley,
Ambl. 400. Anon. 1 Vji:i,
120.

Manner and Plane, 14 Yes.

and see the Universities

ot' Oxford and Cambridge v.
Richardson, 6 Yes. 707. In
nam v. Gray, 2 Atk. 280.
I.

Ireland.

27;-).

130;

VOL.

to

EQUITY JURISDICTION.

Ill

And

Seal for Ireland*.

one Country,

confined

is

Party

enable the

the right in a Patent for

and will not

that,

to

bring the Article for Sale

to

11

into the other

There must be separate

Bills

upon

distinct

invasions of a Patent \
3.

Injunctions to stay Waste, are very frequently

applied for in Chancery

commit Waste
tion upon;
to wait

it

till

Where

the

is

and

n
,

threat

not being necessary for a Plaintiff

the
Title

Waste

actually committed

is

doubtful

is

at

disputed,

or

',

Law

m
,

it

seems,

may be

it

11

as

or other-

an Injunction will not be granted.

in general,

to

ground an Injunc-

sufficient to

between Devisee and Heir

wise

mere

But

obtained to stay

Waste, on the part of a Person or Persons, (even

of a child in ventre sa mere

having the next im-

,)

mediate vested Estate of Inheritance

in

the subject

matter of the waste.

Trustees to preserve Con-

tingent Remainders,

may, before the Contingent

Remainder-man comes
tion to stay

An

Waste p

Injunction

entitled only

to

in esse, obtain

may also be
Contingent

6Ves. 718.

lb.

'Dillyv. Doig, 2 Ves.jun.

Tenant by the CurRobinson

Garth

754.

Gibson v. Smith,
183. S. C. Barn. 491.
Field v. Jackson,
1

2 Atk.
2 Dick,

59 1

and executory Es-

v. Litton,

3 Atk.

211.

-487.
k

v.

Collyer, 6Ves.89.

Anonymous, 6 Ves. 51.

S.

also S.

Cotton, 3 Atk.
Ves. 524, 546. and
G. 1 Dick. 183. where
C.

v.

Lord Hardwicke's argument

given from his own notes.
q

- Smith

obtained by Persons
q

tates* of Inheritance, against

*

an Injunc-

ton,
*

is

Williams v. Duke of Bol-.

3 P. Wms. 268. in note 1
See Hay ward v. Stilling-

I'UEVENTIOM OF FRAUD.
test/,

who

Dower

ill

or as Guardian %

llii

but being

has a legal Estate of Inheritance,

a Trustee

Waste

not liable to an Action of

is

to

them from committing Waste, on Houses,

inhibit

Lands, or Woods, by defacing or pulling

Buildings,

may

It

him

or against

be obtained,

Tenant

against a
u

extinct

Mines, or

digging

also,

felling

down

Timber*'.

by such persons,

in Tail after possibility

of Issue

or a Tenant for Life without impeach-

ment of Waste, taking the produce of Mines

unopened, (unless they be new Pits or Shafts
the working an old vein of Coals

for

clause, " without

1

fleet,

Atk. 425;

and see

God, as by Tempest, or by a
Trespasser and by wrong, have
the first Estate of Inheritance,

v.

whether in Fee or in Tail, and

they may bring Trover for it
but it has been holdcn that a
Tenant in Tad expectant on the

Clarke and Thorpe, 2 Ves.

Ch. Ca. 32.

com:

233.

'2

or

impeachment of Waste," never

Perrot, 3 Atk. 95.

Robinson v. Litton, 3 Atk.
209, 11. Fearne on Executory
Devises, p. 530. Edit. 4.

Perrot

*,)

and extravagant Waste y the

mitting malicious

3 Wood.

determination of an Estate for

impeachment of
Waste cannot maintain Trover
for Timber cut down.
See
Whitfield v. Bewit, 2 P. Wins.
240. and S. C. 3 P. Wms.
2U8; and see Harg. and Hut.
Co. Litt. 218 b n. 2. Pyne v.
Dor, 1 T. R. 55.
u
Abrahall v. Bub, 2Fretm.
53. 278. 2 Cha. Cu. 32. Williams and Williams, 15 Ves.
419.
w
Tracev against Hereford,
2 Bio. C. C. 13S. Whitfield
v. Bewit, 2 P. Wing. 242.
x
Clavering v.
Clavering,
2 P. Wms. 388. S. C. Sel. Cas,
79.
2 Freeman, 52. 2 Cha, Ca,

Lect. 399.

Life, without

What is Timber must be

determined by the Custom of
the Country. By Custom, some
Trees are considered as Timber,
which in their nature, generally speaking, are not so, as
Ilorse-Chesnut and Lime Trees,
Birch, Beech, and As|, and
Walnut Trees. Duke Chando>
v.Talbot, 2 P. Wins. 000. Pollards, it seems, are considered
as Timber, if the Bodies of

them be sound and good

ib.

overruling

what is said in
Toby v. Molyos, Plowd. 470.
The Right to Timber belongs

who at the time of its

being severed from the Freehold, whether by the Act of
to those

32.
I

LQU1TY JURISDICTION.

116

being extended to allow

of the Estate

itself,

missive Waste y

By

destruction

very

but only to excuse from pe+-

Common Law,

the

the

the clause, without im-

peachment of Waste, only exempted

Tenant

for

Life from the penalty of the Statute, the recovery

of treble value, and the place wasted

Lewis Bowie's Case %

it

was

first

the necessary

consequence of which decision was, that

in

gene-

and unless under particular circumstances, he

was not

be restrained

to

But Courts

power

greatly,

formerly

in

Equity

Castle

Equity have restrained

in

comparison of what

re-

down

but that was not an original Case,

without precedent or judicial opinion

as appears

(the

could happen,) Lord Cowper

from pulling

his

was

it

Lord Bernard's Case,

in

strained the Tenant for Life

Ruby

of

And

strongest that

it,

J41

determined that

these words also gave the property

ral,

but did

of the thing wasted.

the properly

not give

from a Case, 5 Jac.

the Court proceeded

still

farther,

to support

Afterwards

and restrained

from cutting

down Timber ei-

ther for ornament or shelter of the

House, and from

such Tenant

cutting

for Life,

down Trees

in a Park,

in lines, or avenues, or ridings

and likewise from cutting down Trees

that were not of a proper growth to be cut

y

v.
Prec. in Cha. 454.
Copley, MS.
1
11 Co. 79; but see 3 Atk.
215.
Alston v. Alston, 2 Ves.
265, 266.
b
3 Atk. 215.

Vane

v.

% and

Lord Bernard, 2

Ch. 454.
Mentioned 1 Ves. 2(i5.
e
Parkinson's Case, 3 Atk,
215. 1 Ch. Cas. 166; but see
what is said in Aston v. Aston ?
Vern. 788.
d

1 Ves. 266.

S. C. Prec.

PREVENTION OF FRAUD.

1 17

even from cutting decayedT'nnber*; or cutting so

much Timber as

doctrine not to be extended*,) aTenant for Life

unimpeachable

Waste,

for

ber generally, treating

liberty to cut

is at

Husbandlike man-

in a

it

Tim-

independent of the effect upon the beauty of

ner,

the Place

Country

being

there

':

as that

le Belle) in the
it

*.

to the doctrine as to Equitable Waste,

But subject
(a

not to leave enough for Repairs

made by

no such

Law

in this

a Kins; of France, (Philip

made

fourteenth Century* which

penal to cut a Tree, qui a

este

garde pour sa

beaute.

not

It is

for the

Waste

to cut

Timber, where necessary

growth of the underwood

k

situated

neither

is

merely ornamental,

it

Waste

unless

it

in

which

to

cut Timber

it

is

was planted and

growing for ornament, such as Vistas and Avenues \

This Principle, however, does not,

Wood

tend to a

it

seems, ex11

covering thirty Acres'

extends to prevent the cutting

down

but

of Trees

planted for the purpose of excluding objects

view

it

from

n
.

If a Testator, or

Author of the Deed creating a

Tenancy

for Life,

his taste

be very disgusting, yet the taste of a Tes-

has planted for ornament, though

tator, like his Will, is binding,

1

95.

Perrot

As

to

v.

Perrot,

'J

Atk.

whom decayed Tim-

ber belongs, see Whitfield

Hewitt, 3 P. Wrns. 268.

h
'

v.

'

Burgess and Lamb, lGVeS-

183.
n

lb. 185.

Burgees

170. und Knight and Du'plessii,

2 Ves. Sen. b\j 1.

lVes: 2f>4.
16 Ves. 185.

lb. 1S5.

Day

375.
v.

Lamb, 16

Ves.

and the Court will

tfnd

Merry, IS \\i-

EQUITY JURISDICTION,

IIS

not permit a Tenant for Life to destroy Plantations

so intended

The

ornament.

for

Principle has

been extended from ornaments of the House to

Outhouses, and Grounds, and

Vistas,

Avenues, and to

all

the rides about the

Estate, for ten miles round; but,

ground

for

Plantations,

to

it is

not a sufficient

an Injunction that the Trees are orna-

mental, not to the Estate upon which they grow,

but

to the

surrounding Country.

Court

If the

has any doubt whether Trees be really ornamental

or not,

it

will direct

same time

an Issue, taking care

at the

that, if in the result of such a direction,

the Defendant should be prejudiced by not being

permitted to cut in the

shall

time, the

undertake to pay the value,

should be against him

mean

Tenant

cutting

for

the decision

n
.

has been restrained from

Life

down clumps

if

Plaintiff

of Fir, on a

Common two

Miles from the House, which had been planted

for ornament.

The terms

of Injunctions in these cases, usually

are, " that an Injunction be awarded to restrain

the Defendant, his servants,

workmen, and

agents,

from committing Waste, Spoil, or Destruction, in

the mansion or other houses, upon the Estates in
question, and from cutting

down Timber,

or other

Trees growing upon the Estate, which are planted,

or growing there for the protection or

the several mansion

Estates, or for the

shelter of

houses, belonging

to

the

ornament of the said houses,

See Marquis of Downshire

v.

Lady Sanderson, 6 Ves.

110,

PREVENTION OF FRAUD

119

which grow in lines, walks, vistas, or

wise for the ornament of the said houses,

or

otheror oi

the gardens, parks, or pleasure-grounds, thereunto

belonging; and also

his servants,

to

restrain the

Defendant,

&c. from cutting down any Timber

or other Trees, except at seasonable times, and in

u husbandlike manner, and likewise from cutting
Saplings, and
for the

young Trees not

fit

to

be cut, as mid

purposes of Timber, except in the spring

woods, and from cutting any thing

woods but

in a

in the spring

husbandlike manner, until hearing

or farther order ."

Such being the usual order in these cases, the

Court will not alter the Terms, and insert the
words, " contribute

An
is

for Life,

ornament**'

may be

Injunction

Tenant

to

obtained where there

subject to Waste, remainder for

Life dispunishable for Waste, remainder in fee; for

the Court will not suffer an agreement between

two Tenants

the

commit Waste,

for Life to

to

take place against a Remainder

Man, before the

when
power commences q

Tenant's for Life

time comes

the second
.

So, an Injunction is'obtain-

r
able against a Joi ntress or a Mortgagor%or a Mort,

gagee in Fee

See

1
,

or for

Lord Tamworth

Years v
v.

G Ves. 419. see also

the Injunction in O'Brien v.
Ferrers,

O'Brien, Ambl. 108.

* Williams
v. Maenamara,
8 Ves. 71.
Robinson v. Litton, 3 Atk.
210 and see Gartb v. Cotton,
3 Atk. 755. and the cases there
11

mentioned by Lord Hardwicke.

but

if

a Mortgagor

Ves. 2G4.
3 Atk. 723. and Usbome
v. Usbome, 1 Dick. 75. and the
several cases there mentioned.
against
Lee,
Far rant
Ambl. 105. and see Robinso.i
v. Litton, 3 Atk. 210.
T
3 Atk. 723.
*

'

EQUITY JURISDICTION.

120

cuts

Wood

and Underwood at seasonable times,

and of proper growth,

An

Waste*.

Injunction

lies also

against a Lessee

an intention of committing

for Years, manifesting

Waste *; but

be considered as

will not

it

Lessee threatening to remove Straw

to his covenant,

and Dung, contrary

not con-

is

sidered as a case of Waste, but as a breach of contract

an Injunction will

A-Iiill for

Landlord or a Termor
Lessee
tion

51

is

ground Rent against

Case

is

Tail, not likely to live

cut down

was

till

is

obtainable, on a Bill filed by the

in the

Hampton

v.

Rector from cuttill

the hearing,

Parsonage House, Out-

Pews

houses, Chancels or

Church-yard,

for repairing the

not only by

Remainder-man,

Patron of a Living to restrain

except

in

Guardian

An Injunction
Timber

his

Timber, an Injunc-

refused, on behalf of a

him

Tenant

Infant,

of age, by

a great quantity of

to restrain

the.

only a Trustee, or in such

Where an

his

An Injunc-

never granted against a Person having

like special

ting

by aground

and against an wider Lessee?.

Inheritance unless he

tion

at

lie

And

e
.

such a

Hodges, 8 Ves.

A nstr. 749

Bill lies

Waste

the Patron of a living to stay

f
;

but see ease

105.

in note there.

* 1 Roll's Ahr. 380. Bishop

of London v. Web, IP.Wms.
527. and see Lord Com town v.
Ward, 1 Seh. and Lefroy, p, 8.
Where a Lessee covenants to
manage the Land, in a Hus-

a
Furrant against Lee, Ambl.
105.
b
Farrant v. Lovell, 3 Atk.
723. Ambl. 105.
c
Prac. Regr.
d
Mr. Seville's Case, mentioned, For. 6.

band like manner, ploughing

up pasture Land is considered
as Waste, see 3 Anstr. 750 but
see Lord Grey de Wilton v.
Ves. 116. Drury v.
Saxon,
;

Molina,

Ves. 320.

Strachy

v.

Francis,

2 Atk.

210.
'

Knight against

Ambl.

170,

Moseley,

WL

PREVENTION Ci FRAUD.
but where the Living
against the

Waste

Widow

*.

is

If,

he

but

if

for

any

but he

common

pur-

it is the Custom of the Coundown underwood for any purpose

however,

may

cut

he grubs

may be

the Parsonage

down Timber,

not cut

try,

to

is

Barns and

Botes, for repairing

to

Outhouses, belonging
pose.

Rector committi:,

of the

Rector may cut Timber, and he

also entitled

may

vacant, an Injunction lies

it

up

it is

Waste.

An

Injunction

obtained, at the instance of the Attorney

General, against a Bishop to restrain the

of great quantities of Timber

Formerly,

in a case of

Trespass, unless

to a nuisance, an Injunction

felling

h
it

grew

would have been

fused'; but latterly an Injunction to stay

re-

Waste

has been granted,

in cases of Trespass, ("unless,

perhaps, where the

title is

a person having got

as

where

seems questionable whether the Lord of a

Hoskins against Feather2 Bro. C.C, 552.

Knight against Moseley,

Ambl. 176.
See Hanson
1

v. Gardiner,
7 Ves. 307. Mogg v. Mogg,
2 Dick. 670.
k
In Kinder v. Jones, 17
Ves. 110, a donbt was made
by the Chancellor, but the
Injunction in that case was
grunted afterwards
by the
Mastef of the Rolls, the dcfendants, though served with
Xiotice, not appearing.
I

;)

'.

stone,
h

possession under articles to

purchase, cuts Timber

It

disputed

Crockford

v.

Alexander,

15 Ves. p. 138; and see als

Mitchell v. Dors, 6 Ves. 147.
Hanson v. Gardiner, 7 Ves.
308. Courthopeand Mapplesden, 10 Ves. 290. but in some
of these cases the Chancellor
seemed not very clear, whether an Injunction should be
granted in a case of mere Tres-

but see Twort v. Twort,

16 Ves. 130. and Smith and
Collyer, 18 Ves. 90. Earl Cowper v. Baker, 17 Ves. 128. and
Thomas v. Oakley, 18 Vis.
pass;

184.

EQUITY JURISDICTION.

1-2-2

has a right to open Mines on the Copyra

It has been held that the Lord of
hold Land

Manor

Manor

is

confined to his legal remedy for Waste

committed by a Copyholder, and has no Equity

for an Injunction".

case has been noticed, where aTenant/or Life

may obtain

an Injunction against Waste. So where

A. is tenant for years, remainder to B. for Life, Remainder to C. in fee, and^. is doing Waste B,
though he cannot, not having the Inheritance,
bring an Action for Waste, is entitled to an In;

junction

But

if

the

Waste be of a

trivial

na-

termed melio-

and a fortiori, if it be what is

p
rating Waste, as by building on the Premises ,
the Court will not enjoin ; nor will it, in any
ture,

unless the Reversioner or

case,

be made a Party

in fee,

approve of the Waste

Remainder-man

they, possibly,

for

may

So, an Injunction between Tenants in Common against malicious Destruction may be ob-

Waste
is

what is called equitable

unless the Tenant in committing theWaste

but not against

tained,
1

Common may

insolvent 8 ; but a Tenant in

obtain

an Injunction inhibiting Waste, against another

Tenant

m Grey
berlarid,

in

v.

Common, who

Duke

of NorthumC.
S.

8 Yes. 236.

17 Ves. 281.
n

Dench

v.

occupying Tenant to

is

1 Roll Abr.
Rosewell's case, 377.
p
1 I" st 53
< 3 P. Wms. 268. n. F.

Wins. 268, note F.

-

Bampton, 4Ves.

700. but that case, it seems,was

over-ruled in Richards and
Noble, March 9th, 1807. MSS.
Mollineux v. Powell, 3 P.

Hole

v.

Thomas, 7 Ves.

589.
s

Smallman

v.

others, 3 Bro. 621.

Onions and

PREVENTION OF FRAUD,

but except under such circum-

Plaintiff";

the

123

stances, an Injunction,

it

tained between Tenants in

seems, cannot be ob-

Common

1
.

The Court, as hath been observed, interferes by

way of Injunction in case of Waste, with a view to
the prevention of the
for

Wrong; and where

a Bill

filed

is

an Injunction to stay Waste, and Waste has

been already

committed, the Court, to prevent

will not oblige the Party

multiplicity of Suits,

Action

to bring an

at

Law, but

account and satisfaction

after the

for

what

is

decree an
u

passed

but

determination of a Tenant's Estate, he

having assigned, a Bill will not

of Timber cut
necessary,

or

will

down

no

v
,

lie for

no Injunction being prayed

injury to be prevented.

indeed, a person commits Waste,

in Possession, there

an account

If,

and continues

an Injunction to stay Waste

proper*, from the probability that he will again

is

commit Waste.
4.

will

be

The Sale of Books, Printed Music, or Prints,

be restrained by Injunction, if a properground

laid for
If,

such Proceeding.

however, a Publication be of such a nature

that the

Author can maintain no Action

at

Law,

an Injunction
even upon the submission in the answer " the
a Court of Equity will not grant

'

Twort

132. S. C.
'

v.

Goodwvn

667.

Twort, 16

Ves.

MS.
v.

Sprav,2Dick.

u
Jesus College v. Bloom,
3 Atk. 202,3. S. C. Amhl. -A

Mb. 264; and

iee SWitl

v.Cooke, 3 Atk. 961.

-

\tk. 381.

EQUITY JURISDICTION,

124

Court,

for instance, will not,"

Lord Eldon,

says

" give an account of the icnhalloiscd profits of libellous Publications

."

Copyright depends upon

If the right to the

the

of cm Agreement, the Court will not grant

an Injunction against an invasion of the Copyeffect

right, until a recovery in

The

Principle on

an Action

which the Court grants In-

junctions to restrain the Sale of Books,

damages do not give adequate

relief,

Sale of Copies by the Defendant,

that

is,

and that the

is,

each in-

in

stance, not only taking a vy ay the Profit

upon the

individual book,which the Plaintiff probably would

have

sold,

extent,

but

may

injure him, to an incalculable

which no Inquiry

mages can

ascertain

doubt appears as

to

for

the purpose of da-'

But wherever

z
.

fair

the Plaintiff's legal right,

the Court always directs

to be tried,

it

and only

permits the Sale, on the Parties undertaking to

account according to the result of the Action

Where a Person was

the House of Lords to

a
.

exclusively appointed by
print a Trial before

House, and another printed and sold the

that
Trial,

an Injunction to restrain the Sale, until answer,

was granted

b
.

The. Proprietor of a copyright must

*

Walcott v.Walker, 7 Ves.

p. 1.
y lb.

Hogg

Kirby, 8 Ves.
225 and see Wilkins v. Aikin,
17 Ves. 424.
;

* See
Wilkins
17 Ves. 422.
b

v.

file

Gurney

v.

Ves. 493. S. C.

separate

v.

Aikin,

Longman, 13
MS.

PREVENTION' OF FRA.UD.
Bills against

each Bookseller taking copies of a

spurious Edition for Sale.

Books

fers his

may

made

be

Most
sought

l^'i

If a

that person,

to another,

a Party

Defendant transit

seems,

c
.

of the Cases, where an Injunction has been

restrain

to

the Sale of Books, have been

where, under color of

new work,

the old

has been republished, and copies multiplied

an Injunction

has,

applied to restrain

work
;

but

on the same principle, been

the Sale of a

Work, which,

though not the same, has been represented as the

d

same

A
is

Collection of Letters, as well as other Books,

within the intention of the Sth of

the

Act

for the

Queen Anne,

Encouragement of Learning 6 and

;

an Injunction has been

granted to restrain the

Executor of the Person to

whom

private Letters

were written, from publishing them without the

leave of the Executors of the Person who wrote

them

f
.

It has

been granted,

cation of

Law

also, to restrain the publi-

Precedents and Reports, surrepti-

tiously procured

5.

So, the publication of a Play

taken in

short

hand horn the mouth of the Performers, has been

restrained

Dilly

v.

h
.

Doicc,

2 Ve?. jun.

486.
d
'

v.

Dunkin,

Ball ana Beatty,

207.

8 Ves. 215.
Pope v. Curl, 2 Atk. 341.

Thompson

A mil.

v.

Stanhope,

737. Earl of (Jrunuid

Mr.

See Cases of Mr. Webb and

mentioned,
Forrester,

Ambl. (>1>4.
h
Macklin against Richaidi
so-.i, Ambl. 694.

EQUITY JURISDICTION,

]26
It

competent

is

Road Book,

to

any person to make a Map,

a Selection from Authors,

though the

collections,

publish their

might happen

be the same

to

Nor

is it

the

might

articles

but a person will

Work

not be permitted to copy the original

'.

all

in these cases, different persons

World; and

another

Court

Calendar, &c. such subjects being open to

of

allowable, under the pretence

of Quotation, to publish either the whole or part

of another's Work, though he

is in all

tation

may

cases very difficult to

what it
define, fair Quouse,

k
#

The invasion of another's Work is generally

made evident to the Court by the similarity of
the Inaccuracies

',

which could only proceed from

unguarded plagiarism.
An Abstract m ox fair Abridgment of a Work,
but a colorable Abridgment is not.
is allowable"
,

In regard to Engravings,
ed, that, the

Act

ly confined

to

(8

already in nature
is

II.

13.) is

not mere-

thing

been holden,

It has

that is

also, that

no answer to an application for an Injunc-

See Longman v. Winches16 Ves. 269 ; and see

Matthews v. Stockdale, 12
Wilkins v.
Ves. 270 : and
Aikin, 17 Ves. 425.
k
Wilkins v. Aikin, 17 Ves.
'

ter,

424.

Carnan against Bowles,

C. C. 84 but see Cary
Faden, 5 Ves. 24.
* Dodsley against Kinners1

t.

Ch.

engraving any
p

tion that the Prints are in

2 Bro.

has been determin-

works of Invention, but means

the designing or

it

Geo.

it

any other work, unless

and see
Arabl. 403
againt Richardson,
Ambl. 696.
n
Gyles v. Wilcox, 2 Atk.
143. S. C. Barn. 366. Bell
against Walker, 1 Bro. C. C.
451.
Butterworth v. Rcjbinson,
5 Ves. 709. 2 Atk. 143.
p Blackwell v. Harper, 2Atk.
92. S. C. Barn, 210.
ley,

Mackliu

PREVENTION OF FRAUD.
represented in the same

the* are

form'

127

maimer and

5. If

Negotiable Securities, Notes, or

affected,

by

indorsed in a mercantile manner*,

for the

an

Bills,

due

Fraud, and are, before they are

the Indorsee,

sake of commerce, will not be affected by

them
by Injunction, immediately
of the Bill, supported by an affidavit

the Fraud, and therefore the negotiation of

may

be restrained,

on the

filing

of the truth of the fraudulent circumstances stated

the Bill, lest the defendant should

in

mation of the
defeat

suit,

object

its

lently obtained,

upon

inti-

by negotiating the Security,

Bond

or

Covenant fraudu-

though assigned to a third person

for a valuable consideration,

without notice,

mains, nevertheless, impeachable for

has no remedy at

Law,

Fraud

for

or right to sue in his

re-

he

own

name, and has only an equitable remedy, which

fails

when

the

Bond

is

obtained by Fraud": so

that an Injunction to restrain an Assignment,

is,

in general, unnecessary.

Transfer of Stock has in

restrained

as

under different
Bills

Quia

where there
and
Wills'
1

timet, are filed, of

presently be made.

many
are

instances been

opposite claims

in other cases

where

which mention

will

In one case, an Injunction

was obtained to restrain a transfer of Stock standing in the name of a Steward, on strong evidence,
by affidavit, that it was the produce of his master's
q

2 Atk. 95.
Lex Proetoria, MS.
See

note.

Fonbl. Eq. 43

in

Lex

6 Ves. 172.

Praetoria,

MS,

EQUITY JURISDICTION.

128

Property; but an Injunction was refused, as to

Money

of the Steward in the Banker's hands

e
.

Injunctions to stay Nuisances, will, under

6.

circumstances be granted, but they will be ex-

tended only to such as are Nuiscuices at

fears of

Law

the

mankind, though they may be reasonable

ones, will not create a nuisance.

Nuisances are private

Nuisance

is

which

that

persons, as in stopping

Public Nuisance

is

public:

or

only particular

affects

up ancient

private nature too, as in

it

may

&c.

lights,

many

such as affects

though, at the same time,

Private

persons,

likewise be of a

the case of a hole in the

King's Highway, &c.

In the case of Public Nuisances.an Information

should be
ral

and

will

is

it

name of the Attorney Gene-

Nuisance respecting

because

the

whether he

for his consideration,

or not

file it

the

filed in

Plaintiff's

lights

lights

is

not such merely

are altered

for

then no vacant piece of ground could be built

upon

in*

London, but the Law says

be

near as to

a nuisance.

it

must be so

Seventeen feet

tance, for instance, will not constitute,

sance.

The

as a nuisance

An
e

loss of a

Prospect

is

dis-

such nui-

not considered

''.

Injunction will not, on motion, be granted

Lord Chedworth

v.

Ed-

wards, 8 Ves. p. 4C; but in a

subsequent case, MS. Lord
Eldon said he had consulted
w ith I ord Ellenborough, and
thought he hud gone too far.

Anon. 753. S. C. Fee Barnes

Baker, Arobl. 158.

'

v.

lb. 150.

Fishmongers

against
1

Dick.

East
lt>5.

Company

India

House,

PREVENTION OF FRAUD.

down

pull

to

129

blinds obstructing the

Plaintiff's

pull

no order ever being made, on motion, to

is sometimes, and
down any thing, though

but

rarely,

lights,

it.

will,

done on a decree

but the Chancellor

by consent, put the matter

in

way

of Trial

Law, and order the Scaffolding to be pulled

down, and enjoin the party from building or erecting, whereby any of the Plaintiff's Lights may be
at

obstructed,
7.

till

had

after Trial

Miscellaneous Cases in which an Injunction

has been granted.

Where

the

Defendant had a piece of Water

supplied by the same Stream from which a Mill

of the Plaintiff's was supplied, and the Defendant

sometimes kept back the Water, and

let it in,

times

such quantities that the Mill was

in

overflowed

at other

on a

Bill filed for the

purpose, an

Injunction was granted to restrain the Defendant

from preventing

it

flowing in regular quantities

k
.

seems, that the Court cannot decree or order

It

repairs to be

an order

though

may be made

that effect.

a Canal,

done,

Thus an

in

(a nice

distinction,)

terms that will have

order to repair the Banks of

and stop Gates and other Works, was

refused; but the effect of such an order was obtained,

farther

by an order

to restrain the

impeding the Plaintiff

Ryder v. Bentham, 1 Ves.

543. S. C. 1 Dick. 277. where
the order is more particularly
stated,and see Morris v. Lessees
of Lord Berkley, 2 Ves. 4&2.
'

VOL.

I.

Defendant from

in the Navigation,

k
1 Qb, Ca. 574. See also
Robinson r. Lord Byron, 1 Bro,

C. C. 5&8,

K.

EQUITY JURISDICTION.

130

" by continuing to keep the said Canals, or the

Banks, Gates, Locks, or works of the same

out of good

spectively
for Life,

repair

'."

however, has been compelled

The Court

re-

Tenant

to repair

m
.

an Injunction where there

will grant

has been a forcible Entry by Commissioners of

the Turnpike, for the purpose of digging Gravel

on Land leased

to the

Plaintiff for twenty-one

years and turned into a Garden

seems, according to
wickc, an

Injunction

had

has

lies in

so, too,

it

the case of private

ground, of which

possession

years, though in such case there

Law "but

And

the reasoning of Lord Hard-

persons entering by force into

another

that'' (says his

twenty- one

for
is

Remedy

at

Lordship,) " would be

only for a particular wrong done, and not equal to

the

Remedy

An

in

Chancery

V*

Injunction will be granted to protect the

enjoyment of a specific Chattel not properly the

It will
subject of Compensation in damages '.
1

be granted,
personal

Property,

Compensation,

to

also,

prevent the destruction of

not properly the subject of

until the rights respecting

Lanev. Newdigate, 10 Ves.

194.

m Prae. Chan. p. 200. In

v. Holt, 3 Atk. 725. a
motion was made in the nature
Birch

of an Injunction, or rather for

leave to put a Mill-dam into
the same situation it was in
before it was cut down: Lord
Hardwicke said he had known

numbers of applications

of the

it

are

kind, " but while the right

is

unheard and undetermined,

the Court have as constantly
denied the motion."
"
Hughes v. Trustees of
Morden College, 1 Ves. 188.

Hughes v. Trustees of

Morden College,

Ves. Sn.

189.
p Lady Arundel!
10 Ves. 139.

v.

Phipps,

PREVENTION OF FRAUDascertained,

upon the

parable mischief

131

principle of preventing irre-

r|

There are various other occasions where an

Injunction will be granted, but which are difficult

otherwise than

to state,

Decree

If a

made;

is

detached Propositions.

in

in

execution of a Trust,

and a Defendant thereto attempts

to controvert

LaWj the Court

a Bankrupt bring an action against his
Assignees, the Court will grant an Injunction
will grant an'Injunction*.

that at

So,

if

until the hearing

An

*.

maintained, in

many

Executor from getting

assets

may be

Injunction

cases, to prevent an

of a Testator into his Hands, upon particular cir-

cumstances

Wife,

'.

for instance,

an Executrix, has been

restrained from getting in the assets of the Testator,

her

Husband being

in the

West

Indies,

and

not amenable to the process of the Court".

But the Court

will not interfere

merely because the Executor

circumstances,
this

if

is

by Injunction,

not in affluent

the Testator himself has placed

confidence in him, without regarding his

cumstances

On

cir-

a Bill

by Creditors against the Executor,

Heir, and Purchaser, of a Real Estate charged for

payment of debts, an Injunction may be obtained

q
Nubbrowne v. Thornton,
lOVes. 1G3.
' Flower
v. Herbert, 2 Ves.

32".
s

lb. 320. etc.

'

Taylor

v.

Allen,

2 Atk.

213.

lb.

Hathornwaite
2 Atk. 12G. S. C,

K 2

v.

Russell,

Bam.

334.

QU1TY JURISDICTION.

132

payment of the purchase Money

to restrain the
w

to the Heir

In the Case of Agreements on Sales, and De-

Agreement

posits made, if the

by the time

is

not performed

an Action for his Deposit; but a Bill

him pn^ing

against

an Injunction

may be

also,

and

filed

restrain

may bring
may be filed

stipulated, the Purchaser

in

specific Performance,

mean

the

time.

An

and

Injunction,

obtained on Certificate of the Bill

Affidavit, against a surviving Partner, to

him from disposing of the joint Stock, and

receiving the outstanding debts, he being embarrassed and in prison,

perty

and misapplying the Pro-

x
.

Lord of a Manor has approved under the

Statute, and left sufficient Common of Pasture,
If a

and the Inclosures are thrown down by the Tenants, an Injunction

may be

obtained, and at the

hearing, an Issue will be directed, as to the rights-

of the Parties

An

Injunction

# Fish-ponds

lies to

An Injunction

against the

not be granted, at
established

restrain the injuring of

least,

Use of a Market

who makes

',

default at the Trial, and employs the

"*
Green
against Lowes,
3 Bro. C. C. 218.
Harty v. Schrader, 8 Ves.
318 and see on this subject
Read v. Bowers, 4 Bro. C. C.
;

441.
v.

is

brought against a Tenant

interval in doing all the mischief in

Weeks

Law

until a Title at

If an Ejectment be

>

will

Staker,

2 Vern,

300.

his

Arthington

Power,

v.

2 Vern. 350. Hanson

Fawkes,
v. Gar-

diner, 7 Ves. 309.

Earl Bathurst against Buf

den, 2 Bro. C. C. 64.
'Anon, 2 Ves. 414.

PREVENTION OF FRAUD.
an Injunction

be granted

will

133

but unless an

';

Ejectment be brought, an Injunction

will

not

lie

Tenant so misbehaving himself*.

against a

Courts of Equity

interfere,

in

many

cases, to

Breach of Covenant*: as where a Tenant

carrying off a Farm, Manure, &c. he had cove-

restrain a
is

nanted to consume upon

nant

is

it

but where a cove-

of such a description, that a breacfi of

it

can only be ascertained, in each instance, by a

Trial, the

tion

Court will not

An

interfere'.

Injunc-

has been granted to restrain a Tenant of a

Farm,

i'rom

breaking up

Meadow

of building, contrary to express

On

the same

for the

purpose

Covenants

Principles, an

Injunction has

been granted to restrain a Tenant from year to

year under notice to quit, as in the case of a
Lessee

for a longer

term, from doing damage, and

from removing the Crops,

Manure, &c. except

according to the custom of the Country

The Court with

tion to stay the
is

reluctance grants an Injunc-

working a Colliery, unless there

a breach of an express

troverted mischief

Where

there

is

Covenant, or an uncon-

'.

an Agreement for a Lease of a

Farm, and the intended Lessee

and uses

it,

" in a grossly

ner," and there

Sir

Wai.

g.

would be

Pulteney

v.

Shelton, 5 Ves. 2(j0. in note.

c
Lathrop v. Marsh, 5 Ves.
259.
d
Barret v. Blagrave, 5 Ves.
555.

is

in

possession,

unhufbandlike man-

a right of re-entry

in

See
Collins and Plumb,
1G Ves. 45-i.
f
Lord G/ey <le Wilton y.
Saxon, G Ves. 10G.
g
Onslow v.
,
1G Ves.

173.

Anon. Ambl. 209.

EQUITY JURISDICTION.

134

the
lie,

when executed,

Lease,

an Injunction will

but will not be continued, with a view to a

performance

specific

It seems, that

even

if

no

right of

Entry was to be

introduced, under an Agreement for a Lease of a

a gross case of Waste,

Farm, yet the Court seeing

(which

will in

all

cases be a Forfeiture of the

breaches of Covenant,

place wasted,) and gross

that could not well be indemnified

would

interfere

by Injunction

afterwards attempts to
in the

same

place,

Good Will of

If a Person sells the

by damages,

a Trade, and

up the same Trade,

set

under the same sign or name,

the party giving himself out as the same person,

an Injunction,

An

it

seems,

maybe

Injunction will not

obtained

lie

to

11

restrain

one

Trader from making use of the same mark with

another

b
.

Perpetual Injunctions are granted on

casions

stat.

office,

although the office was not within

5 and 6 Edvv. 6

against

lies

making an

a
ill

Bond

And such

c
.

use of it, to prevent the Incumbent

Such an Injunction,

been awarded, against proving a Will in

Gourlay v. Bukeof Somerset, 18 Yes. 72.

*

lb. 73.

See Cruttwell
Ves. 342.
*

464.

Injunction

of Resignation, the Patron

from demanding Tythes''.

also, has

oc-

against a Bond, for instance, for the pur-

chase of an
the

many

Bhmchard

v. I.ye,

v. Hill,

17

2 Atk.

Harrington

Chatel,

against

Du

Bro. C. C. 124.

a
Durston v. Sandys, 1 Vern.
411. S. (. 2 Ch. Cas. 180. S. ('.
2 Ch. Rep. 398.

PKEVLNTION" Or
the Spiritual

Court, which on a Trial

has been found to be no Will

death of the Plaintiff; nor

Representative to

But,

And

'

at

these

Law
per-

remain notwithstanding the

petual Injunctions

junction

135

IT.AL'D.

file

it

is

Hill to

necessary for his

continue the In-

'.

seems, a Bill to establish a legal Title and

it

a perpetual Injunction

never entertained by a

is

Court of Equity, unless there

are particular cir-

in the Bill,

shewing the neces-

cumstances stated

Court's interposition, either for pre-

sity of the

venting multiplicity of Suits, or other vexation,

or for

preventing an injustice irremediable by a

Law s

Court of

Perpetual Injunctions, are, generally, the object

for

which, what are termed Bills of Peace, are in-

The

stituted.

principles

are resorted to will

6.

now be

persons,

Actions

at
;

Bills

considered.

Bills of Peace.

Bills of Peace are

has a Risfht which

upon which these

made use of where

may be

different

Person

controverted bv various

times,

and the Court

will,

and

by

different

thereupon, prevent a

multiplicity of Suits ', by directing an Issue to de1

termine the Right, and ultimately an Injunction.

Another occasion where

resorted to,

is,

'

of this kind

is

where there have been repeated

* Beversliam v. Thringhold ,
Ch. Cas. 80.
Yid. the case mentioned in
Morgan v Scudamore, 2 Yes.
Jun. yo.

a Bill

See Arg. in Vf illiam Welby,

esq. App. and Duke of Ruth

land, Kesp. (J Bio. Ca. P, 575.
h
See Baker
1 Ch. Ca. 70.

v.

Shelbury,

EQUITY JURISDICTION,

13(3

attempts to

same question, and

litigate the

peated and satisfactory Trials; in which

the Court upon such a
Parties interested,

of

names of themselves, and the rest,

cases,

by

all

the

them

in

the

Bill, preferred

by some

or

will grant aper-

petual Injunction to restrain further litigation

Bills ofthis

re-

11

kind are frequent in disputes between

Lords of Manors and

and between

their Tenants,

Tenants of one Manor and another

for in

these

would be no end of bringing Actions

of Trespass, since each Action would determine
only the particular right in question, between the
Cases

there,

Plaintiff

and Defendants'.

So, where a Right of Fishing

upon the River

Oase, for nine Miles in extent, was claimed by the

who had

Corporation of York,
cised that right, but

constantly exer-

which was opposed by

dif-

ferentLords of Manors, a Bill ofthis description

was admitted,

to establish the

several opponents, for

for the

Law

it

Right against these

would have been endless

Corporation to have brought Actions at

k
.

In this case,

it

is

observable that whilst

the Suit was pending, the Plaintiffs

caused the

Agent of the Defendant

for a

to

be indicted

of the Peace in fishing in their Liberty

a motion

made

before

h
See Lord Bath v. Sherwin,
Precedents in Ch. p. 262.

Finche's Edit, and see 2 vol.

..t'Sclioal and Lef. p. 208. and
lie cases there mentioned.
'
Lord Tenham v, Herbert,

Breach

and upon

Lord Hardwicke

to stop

2 Atk. 483; and see Hanson v.

Gardiner, 7 Ves. 310.
k
Mayor of York v. Pilkington, 1 vol. Atk. 282; and see
Lord Tenham v. Herbert, 2Atk.
483.

PREVENTION OF FRAUD.

137

the Prosecution, he observed, " This Court has

not originally, and strictly, any restraining power

over Criminal prosecutions;

Defendant had

the

and

applied

in this

the

to

case, if

Attorney

General, he would have granted a noli prosequi.

" For when a complaint

is

grounded on a Civil

Right, for which an Action of Trespass would

the

Attorney General of course

grants

lie,

a noli

prosequi.

" If Actions of Trespass had been brought

Armis, this Court would have stopped them
though 1 cannot grant an Injunction, yet
certainly

make an

vi et
;

but

I may

order upon the Prosecutors to

prevent the proceeding on the Indictment.

"Supposing
where

entries

brought

was

Land
had been made, and the Bill was
it

a Suit for a right

to quiet the possession,

and

of

after that

they prefer an Indictment for a forcible entry,

which

of a double nature, as

is

Breach of the Peace, and

is

it

partakes

of a

also a Civil right, this

Court would certainly stop the proceedings upon

such indictment."
" Where Parties submit their right to the
Court, they have certainly a Jurisdiction, and
Therefore

interpose.

the

restrain

Sessions,

order

till

Plaintiffs

may

will make<>an order to

from proceeding

the hearing of the

at

the

Cause and further

."

Such

a Bill

may be brought

against a Lord, as by a

by Tenants

Lord against Tenants

'2Vol. Atk. Reports, p. 302.

Mayor, &e.
f York v. \\~
kington

as well

"; as,

m Conyers v. Lord
Abergavenny, 1 vol. Atk. 2S5.

EQUITY JURISDICTION.

13S

be paid by

for instance, to settle a general fine, to

the Copyhold Tenants of a Manor".

all

Such

been entertained at the instance of

t/icNeiv River Company to quiet them intheposa Bill has

sessionofPipeslaid through theDefendant'sField'

respecting- Suit to a Mill

and

>':

or,

Bill

where several

Tenants claim a right to the Projits of a Fair

on a

So,

shewing that one Commoner had recover-

ed one shilling, or other small damages Egainst the

Plaintiff for oppressing the

Common,

or for using

the

Common where he ought not,

the

Defendant, another Commoner,might accept of

damages for what was

like
at

and praying that

past, to prevent charges

Law, the Lor el Keeper Guildford

said,

it

was

in

r
the nature of a Bill of Peace, and was proper

There are Cases where Bills of Peace have been

brought, though there has been a general right
claimed by the Plaintiff, and yet no privity between
the Plaintiffs and Defendants, nor any general right

on the part of the Defendants, and where many

more might be concerned than those brought
as,
before the Court. Such are Bills for Duties
in the Case of the City of London v. Perkins in
the House of Lords, where the City of London
;

brought onjy

who

few persons before the Court,

dealt in those

things whereof the duty

claimed, to establish a right to

great

but because a

number of Actions may be brought, the Court

Cow per v. Clerk, 3 P.

Wins. 150. see Bunb. 41.
2 Vern.
431. New River
1

Comp.

Craves.
Lionel
Pilkington's
Case in the Duchy Court,
cited, 1 Bro. 40.
p

it

was

Sir

v.

q
Meureit v. Eastwicke, 1
Verh. 200. 1vol. Eq. Cas.
Abr. p. 79. pi. 2.
r
Pawlet v. In grey, 1 Vern.
308, 1 vol, Eq. Cas. Abr. p.

71). pi. 2.

PKEVENTIO.V OF FBAUD.
suffer

such

make

distinct

though the Defendants might

defences, and though there was

no

between them and the City*.

privity

It has

Peace

Bills,

130

been determined, however, that a

will not lie between two Parishes to

Bill

have an
t;

Issue to ascertain the boundaries of each*.

would be,"
daries of

said

all

Lord Thurlow,

t;

the Parishes in the

He

count of the Poor Laws."

of

to try the

It

Boun-

Kingdom on Acapprehended these

Issues had usually been directed by consent of the

Parties

It

seems, too, that the Court on a Bill

of this nature will not decree a perpetual Injunc-

enjoyment

tion for the

who claims

of a Party

of,

nor establish, the right

contradiction to a public

in

Highway, or a common
would be to enjoin all
the People of England". Where, therefore, a Bill
was brought to be quieted in the possession of an

right, as

a right to

Navigable River;

for that

Ancient Ferry, used with a Rope over the River

Ware, against twenty Defendants who had cut the

Rope,

with a view, as

was

it

insisted, to avoid

multiplicity of Actions, the Chancellor observed,

" Plaintiff may have trespass

a Ferry

does not

is

in nature

lie to

of an

be quieted

Highway.

A Bill

session of a

Common;

nature: this

is

lies

for cutting the

Rope:

Highway; and

a Bill

in

to be

the possession of an

quieted in the pos-

but that

is

of a different

Navigable River, and the Rope

' Harrison's
CIi.
1 vol. p.
127.
s
Parish of St. Luke, Old
Street, u-uiust the Parish of St.

Leonard, Shoieditch,

Bio.

40.
'

Id. ibid.
Miti'ord's

Heading?, 120.

EQUITY JURISDICTION.

140

to the Ferry is an obstruction of the

if Plaintiff

remedy

for

Nor can

has any such

him

at

Law

right

Navigation

there

is

proper

w ."

a Bill of this description be maintain-

where a right is disputed between two persons

x
As where a Bill was brought by one Tenant
c?i/t/
suggesting a custom for the Tenants of
Manor,
of a
ed,

the

Manor

Turves

in

of A.
the

(of

which he was one)

Manor of

have an Issue directed

cut

B. to quiet him, and to

as to the right

occasion, the Court said,

to

" This

upon

this

improper,

Bill is

and inconsistent with the nature and end of a Bill

of Peace, which

is,

that where several persons hav-

same right are disturbed, as application to

the Court to prevent expence and multiplicity of
Suits, issues will be directed, and one or two de-

ing

the.

terminations will establish the right of

concerned, on the foot of one

and the

Bill is preferred

by

all

common

all

parties

Interest,

the parties inte-

name of

rested, or a determinate

number

* Harrison's Ch. 1 vol. p. 125.

* Lord Tenham v, Herbert,
2 Atk. 483. and "Whitchurch v.
Hide, 391. see also 4 I5ro.
P. C. 157. Vin. fit. Ch. 425.
pl. 35; see also Cow per and
Clerke, 3 P. Wrns. 150. " Ac-

on the subject had been looked

and it was found that in
no instance, except that of
Bush and Western, Prec. Ch.
530. had this Court ever interfered in a mere question of
right between A. and B. they
having an immediate oppor-

cording to this distinction,"

says Lord Chancellor King,
" are the Cases, 1 Ch. Rep. 33.
and 96;" see also Fortescue,
p. 42. and 44. and the Case of
Webb and Conyers, cited, 1
Bro. 40. Wei by and the Duke
of RutlandjGBro. P. C. 575. in

whichCase,asLordThnrlowobserves in Weller and Smeaton,

1 Bro. 573. '* most of the Cases

in

the

into,

tunity of trying the right at

Law which would be definitive." The same Case is shortly

noticed in 2 I)ick. Rep. 442 ;
see S. C. cited, 2 vol.
Schoales and L. p". 209 ; see on
this subject, Finch v. Resbridge, 2 Yern. 390. and the

and

note.

HI

PREVENTION OF FRAUD.
themselves and the rest

but in this case one only

brings the Bill on the general right, and not on the

foot of

any particular distinct

kind should not merely pray Spe-

Bill of this

cial RgJief, as that the Plaintiff

the possession

the right

till

should also pray relief

petual Injunction

Law

but

Premises, or a per-

in a case

hearing was directed to be

be quieten in

tried at

is

in the

and

may

where

when
amended

cient in that respect, the Bill

ticular

and therefore

right,

the Bill was dismissed with costs

it

was deficame to an
it

in

that par-

z
.

After Jive Trials in Ejectment, and Verdicts in

all

of them, for the Earl of Bath, he brought

kind for a perpetual Injunction, and

though Lord Cowper refused to grant it, yet the

Bill of this

House of Lords on appeal granted the Injunction \

After even two satisfactory Trials of an Issue Devisavit vel non, the

to prevent

were Trials

Court,

to sell,

at

Bar

especially

if

they

c
.

devised to be sold,

and a

brought against the Trustees to oblige them

and the Heir contests the Will,

7 Harrison's
124.

Ch.

vol. 1.

p.

v.

Ando-

Vera. 266.

Lord Bath

Prec. Ch.201.

after two

Leighton and Leighton,

P.

Wms.

Ewelme Hospital

ver, 1

seems, will interpose

any farther Trial

If a Trust Estate be
Bill is

it

v.

and

Sherwtn,
S. C. as it

seems,in Lucas's Rep. p. Land

1 Bro. P. C. 266. on the appeal. See also S, C. noticed in

072.
b
Bates v.
Jun. 293.
c

See

1 Str.

P.

Graves,

Wms.

404. and

217.

Coker

Wms.

563.

v.

2 Ves.

671. S. C.
P. C.
Farewell, 2 P.

Bro.

EQUITY JUSISDICi'ION.

142
Trials the
tion

Court

grant a perpetual Injunc-

will

c
.

Lord Keeper Guildford was

of opinio) that if the matter before him had been
res Integra, he should not have made altogether
such a decree as Lord Clarendon had, whereby
the Inheritance was bound after one Trial
If the Court cannot fix upon an Issue that will
appears that the

It

comprehend
seems,

it

Law s

the subject in dispute,

interfere

Party

the

leave

all

on a

Bill

his

to

of this

remedy

at

it

will not,

kind, but

Common

7.

Bills of Interpleader.

A Bill of Interpleader, (similar in

to the doctrine of Interpleading at

Bailment*,)

is

resorted to,

some measure
Law, in cases of

where a person claim-

knowing to
whom he ought of right to render a Debt or Duty,
apprehends injury from claims made, (a mere
claim is a ground of Interpleader,) by two or more
ing no right in the subject, and not

claiming in different or separate

same Debt or the sameDuty'.

Interests,

The

Bill

the

states

the situation of the Plaintiff, the conflicting claims

upon him, and prays

'

so

that the

J.eighton v. Sir Edward

1 P. Wms. 671.
Fitton v. Macclesfield, 1

Leighton,
1

Vem.

292.

Ray

et

MS,

Lowther

Langston

v.

al,

v.

Boylston,

Ves. 109.
l

Dungey

Juu. 310.

Trin. 8 Geo. II, 1733,

may

Court may adjudge to

the Debt or Duty belongs, and that the

interplead,

whom

such claimants

that

v.

Angove, 2 Ves.

PREVENTION OF FRAUD.
Plaintiff

Money

(if

Court

and

13

be thereby indemnified. The Plain-

may

.should also

tiff

by

offer to brin^

his Bill,

the

any be due) or Property claimed into

if

such offer

the Court, upon the

made by

not

is

the

Bill,

application of either of the

Defendants, will order the Plaintiff to bring such

Property, or pay
the Bank, in the
in trust in

to

whom

the

Money

the

name of the Accountant General,

canst.',

for the benefit

have

fendants

to belong

till

to restrain

the right

motion

may

for

is

determined.

".

has brought the

But,

it

usual

And

in

support of the

seems, the PlaintifTnever

Money

into

Injunction,

Court

when
Deputy Register

In the Exchequer,

k
In Thanet v. Patterson,
laniard, 247. the Bill was
held not to be an Interpleading Bill, because it did not
contain ah offer to bring the
Money into Court; see 2 Ves.
Jun. 109. Langston v. Boylston.
In strictness perhaps it
ground of Demurrer, Mit.
is
Tr.p.vl2CL
2 Anstr. 531. in note, and
3 Anstr. 7U8.

the

till

he

though there

cases that point to a contrary doctrine

certificate of the

'

in

an Injunction, an Affidavit of the facts

be read

some

at

the claimants from proceeding

can proceed compulsorily, by

are

or Suits in Equity,

must be prayed

Injunction

form

',)

DeLaw,

If the

14

commenced Actions

(unless they are Ejectments

m

of the party

the Court at the hearing of the Cause

should decree the same

an

into Court, or into

the Plaintiff produces a

that the

Money

m 2 Ves. Jun. 101. I.angstau

Boylston,3 Bro. 36. Dungey
against Angove.
n
2 Ves. jun. 101. Langston
v. Boylston,3Bro. 30. Dungey

v.

against Angove and others.

Prac. Reg. last edition, 78.
See the Cases cited in Mr.
Hollist's Arg. 3 Bro. 30. Dun>'

gey

v.

Angove and

other*.

EQUITY JURISDICTION.

144

paid into Court,

is

a Bill for

to

grant the Injunction

Such

Motion of course

is

it

sum under ^10.

Exchequer, been dismissed

1
dignity of the Court

has in the

as being beneath the

There must be annexed

of

filing

by the

must be made

there

it,

Plaintiff, that

by Fraud

an

Affidavit

he doth not exhibit his

or Collusion with the claimants,

spontaneously for his

not swear that the

ness, affords

way

to

If the Affidavit

Prosecution
to be false

is

is

security
filed at his

Bill

but

but he need

own expence*..

made, the neglect,

in strict-

The more

annex the Affidavit

to the Bill.

ground
is

own

Bill

If no such Affidavit

usual

upon the

to the Bill, or

for a

is false,

Demurrer
the Party

liable

is

to a

but the Court will not determine

upon a Counter Affidavit

2
;

but

it

if there

be a suspicion of collusion, the Court will direct

an inquiry into the circumstances

which

in

and

in a case

Report confirmed the fraud,

the Bill

was dismissed with Costs to the Landlord, as

between Attorney and Client, to be paid by the
Plaintiff and his Solicitor, and the latter was
ordered to

shew cause why he should not be

struck off the Roll

It

a
.

must appear by the

Fowler's Prac. 29C.

2 Anst. 530.
v
To such a Bill against the
Attorney General and others,
there must be an affidavit annexed, Bunb. 303,
1

Bill

v.

that there

Ves. Jan. 248.

* JHit.

v.

some
Metcalf

Harvev.
*

v.

is

TV. 126.

2 Yes. Jun. 310. Dungey

Angove.
* 2 Ves. Jun. 304. Dungey
Angove,

PREVENTION OF FRAUD.
capable

person

shew

of interpleading,

that there

such

is

na turd as can interplead

must

It

whom

to interplead, claims a

both the Defendants

and

must
rerum

also

shew,

seeks to

it

right,

may demur:

it

in

a person

that each of the Defendants

compel

145

otherwise

the one, be-

cause the Plaintiff shews no claim of right in

him; the

because the Bill shewing no

other,

claim of right in the Co-Defendant, shews no cause

of Interpleader c
to

compel the Defendants

rights they

mur

shews no right
interplead, whatever

If the Plaintiff

may

to

may

Defendant

claim each

de-

d
.

Such

Bill lies

where the Tenant may be

liable

Rent to one of two different persons

claiming the same Rent, in privity of Tenure and
privity of Contract, as in the Case of Mortgagor
pay

to

his

and Mortgagee, Trustee and Cestui que Trust, or

vvherethe Estate

Husband

settled to the use of a

is

Woman, of which

Married

the Tenant has notice, and the

has been in the receipt of the Rent, and

differences arise

between them, and she claims the

Rent.

There may be a variety of Cases

in

which the

Tenant, not disputing the Title of the Landlord,

but affirming that Title, the Tenure and the Con-

by which the Rent

tract,
it is

uncertain to

a Bill

whom

Interpleader

ot'

payable,

is

may

file

Tenant cannot

file

to be paid,

it is

But

a Bill of Interpleader against his

b

1 Ves. Sen.

249. Metcaif

v.

Hervey.
c
.

Mitford's Treatise, p.

VOL.

I,

12&

v.

but where

Landlord, on

lb.

2 Ves. Jun- 312, Dungey

Anjjove-

EQUITY JURISDICTION.

146

by a

notice of an Ejectment
title

under a

stranger,

adverse to that of the Landlord

But

f
.

this

Rule does not hold, where

upon the act of the Landlord subsequent to the
As where a Lessee of Tithes filed such
Lease g
the question arises

a Bill against the Lessor, the Vicar, and the As-

Act of which he took

each of them
the Lease

signees under an Insolvent

the benefit subsequent to

claiming the Rent;

and the Court thereupon

directed an Action

to be brought

signees,

and

to

by the As-

be defended by the Vicar h

Lord Thomond's
filed by Tenants,
in

So,

Case, a Bill of Interpleader

was

against their Landlord,

and

persons claiming Annuities

subsequent

the

to

Lease, and the Bill was sanctioned by Sir Thomas

Seicell,

the Tenant being by the

Act of the Lessor

entangled in a question which

settle*.

If a Guardian

he could never

having an Infant in his

custody, conceals and will not produce him, but

up a Title to
gests by his Bill,
sets

and the Plaintiff sug-

himself,

Infant has a right to

that the

controvert that Title, " in such a

charged," says Lord Hardwicke, "

Case and so
I will

not say

but such a Bill might be brought to compel the

Guardian to produce him k ."
If one who is not a party to a Suit, supposes
he has a separate Interest
tion,

in the matter in ques-

and commences his Suit against the

Ibid.

See also Clarke

Byne, 13 Ves. p. 386.

9
Ves. 107. Cowtan
Williams, see also Clarke
Byne, 13 Ves. p. 385.

v.

9 Ves. 107.
Williams.

v.

v.
v.

De-

Cowtan

v.

lb.
1 Ves. Sen. 349.

Hervey.

Metcalf

PREVENTION OF FRAUD.
to be

fendant, praying
right,

to interplead,

hojder

may

first

may make

Suit

second Suit a Defendant,

and contest the right

file

J7

relieved according to his

the Plaintiff in the

Plaintiff in the

such a Bill *, and so

the

in order

meresla/cc-

may Agents

Captures".

for

Where

several Bills are brought

Person and
Infant,

prochein
will,

same thing, or

for the

where several

Amys

Case of an

in

Bills are brought,

the same

for

by the same

on motion, stay the proceedings

by several
the Court

thing,

in all

but one

Suit; but the Court will not interfere thus arbitrarily,

except

in

Cases

these

says

for,

Lord

Hardwic/ce, every person in a free Country, as this

is,

has a right to

bring his Suit and be heard

and, accordingly, he
in a

would not

Case where two

stay proceedings

had been

Bills

filed for

the

same purpose against the Defendant, the one by

the party interested himself in a Co-partnership

Account, and the other by an Assignee of that

Plaintiff,

though the^e were great marks of

being a contrivance

Bill,

its

p.

established, and that

Modus

7. might be
the Rector of Market Bos-

praying that a

of

worth, and Rector of Sibson might interplead as

to the

Tythes to be covered by the Modus, was

dismissed

**.

Prec.
Reg.
Edition.
m 6 Ves. 418.

p.

78. last

Aldridge v.
MesniT.
See 9 Ws. 73. Suttons v.
Earl of Scarborough, where
thv Pleadings, auch a Bill

stated to liuve been brought,

and an Issue directed.

is

Ambler

103.

Gage agains*

Bulkt'lv.
p
q

lb."

3 Anstr. 801. Woolaston

and others v. Wright.

12

EQUITY JURISDICTION

14S
If

on a

directed

of Interpleader,

Bill

between the Defendants,

the Suit

thereby ended as to the Plaintiff; and

tiff dies,

may

the Defendants

reviving the cause

Fund

and

in Court";

the Plain-

if

proceed without

is

if

properly instituted,
Costs, out of the

there be no fund

in

the Costs will be given against the Party

casioned the Bill

the

Costs

may be given

Defendants to an Interpleading Bill

requires this, and

is

entitled to his

is

is

If an Interpleading Bill

the Plaintiff

still

Law

Trial at

it

Court,

who

oc-

as between
v
.

Justice

has been done in a variety of

Cases; the decision to the contrary, of Dowsonand

IIardcastle
It is

v
,

not having been followed.

very obvious that Bills

may on many

of Interpleader

occasions be advantageously re-

sorted to; but the Court does not look very favour-

ably upon

them, and Lord Hardicicke expressed

himself unwilling

to

allow new

the bringing of such Bills

S.

inventions,

in

*.

Bills of Certiorari.

A Special Writ of Certiorari is frequently

for in a Bill filed

by a Defendant

a
,

prayed

in a suit in

an inferior Court of Equity, having limited Jurisdiction,

T

such

as the Courts

1 Vern. 352. last edition,

Anonymous.

2 Bro. 149.
against Thompson.
c

Ves.

of Equity in Counties

1 Ves. Jun. 3(58.

Metcalf v. Harvey, 1 Ves,
249.
a
Such a Bill cannot be filed.
x

Aldrich

419. Aldrid^e y.

Mesner.
9 Ves. 10S. Cowtan v. Wilhams, and the case in note.

by the Plaintiff,

iu the inferior
Court, Jacob's Ch, Prac. 1 vol.
080.

pttEVCNTJON OF FRAUD.

Palatine

b
,

14$

the Courts of Great Sessions in Wales

the Courts of the

Cambridge, and

two

Vnicersitics of

Courts of the

the;

'

Oxford and
of London,

Citij

and the Cinque Ports, to remove a Cause into the

Court of Chancery, upon

that the cause

is

suggestion, either

of the

that the Defendants,

or the

Court, or

Inferior

out of the Jurisdiction

Witnesses, live out of

not able, owing to

Age

tance at which they

its

Jurisdiction, and

live,

to attend

are.

or the dis-

or Infirmities,

such Inferior

Court, or cannot be compelled by the process of

such Court to be examined

there,

and that

for

these or other reasons, assigned in the Bill, equal

justice

is

This

not likely to be obtained in such Court.

Bill

does not pray that the Defendant

may

Answer, or even appear to the Bill, and consequently it prays no Writ of Subpoena*
1

When

the Party has filed his Certiorari Bill,

on Motion, and
that the Bill

by

for

and

is

ferior

will

it

a Certificate

is filed,

the

from the Six Clerk

Certiorari

Writ prayed

be granted by the Lord Chancellor,

usually directed to the Judge of the In-

Court, requiring him to certify or send to

the Court the Tenor of the Bill or Plaint

there

with the process and proceedings thereupon,

When

the Order

is

passed

and entered, the Clerk

in

Court procures the Writ, and upon the making

out and receipt of

it,

Ch. Ca. 31.

3. note 2.

Dougl.

Mitford's Pleadings, p. 40,

Bond

is

entered into,

According to some Precedents

a Subpoena is prayed; tee 2 Vol,
Jacob'.-. Chancery Prac. 033,

EQUITY JURISDICTION.

r
l )0

by the

Register,

before the

Plaintiff in the Cer-

with a surety, to the Master

tiorari Bill, together

of the Rolls, in a penalty of alO(), conditioned

that

the Plaintiff shall prove the suggestion of

his Bill in fourteen days

Writ, which

is

after the

return of the

within fourteen days

returnable

Upon

being served on the Defendant.

after its

the Writ of Certiorari being served and returned,

a motion

is

made

to

file

the

thereupon be ordered to be
the proceedings removed.
Plaintiff's

own shewing

filed,

If

which

Writ,

it

together with

appears by the

him in

in the Billjiled by

that he lives out of the Ju

the Inferior Court,

such Court, then the Plaintiff in

risdiction of

the Certiorari Bill,

tion in his Bill,

without proving any allega^

may

Motion
removed after which

obtain an order on

or Petition to retain the Bill

the Defendant must put in an answer as

cause had been originally instituted

in

which the

When
filed

Bill of Certiorari is exhibited.

are necessary,

suggestions

they must

with the Examiner, and Witnesses exa-

mined by the
Defendant
lish

the

if

the Court

in

Interrogatories to prove the

of the Certiorari Bill

be

will

is

anything

Plaintiff,

and by him only,

the

for

not permitted to examine or to pubto disprove their

Testimony.

An

order must be procured by Motion or Petition to

refer

such examination to a Master, and

Examiner

to attend

with the depositions.

Master's report must then be obtained

certifies

for the

and

The
if

he

the suggestions of the Bill to be proved,

PREVENTION OF FRAUD.

IjI

may be moved upon such

the Court

report, to

If the suggestions in the

have the Bill retained.

from circumstances, such as the

Bill cannot,

re-

moteness of the Witnesses or other good cause,

be proved within the fourteen days, further time
to

make such

proofs

may be

by an Affidavit of the

Petition supported

or a

obtained on a Motion

Circumstances.

The Proofs on this occasion, are not afterwards

made use of upon the hearing of the removed
cause but the Parties after such removal, proceed,
;

and to the examination of

in the ordinary course,

if necessary

witnesses,

for the proofs in the

Cer

are only for the purpose of giving

tiorari Bill,

the Court Jurisdiction,

If the suggestions of the Certiorari

not proved, a Procedendo

obtained,

which

is

may be

to

him

are

and
the Judge

applied

Writ directed

of the Inferior Court, requiring

Bill

to

for,

proceed

removed into a Court of

Equity, by Certiorari, &c. the Plaintiff, in the
Cause, which

in a

is

Certiorari Bill, not having sufficiently proved the

suggestions in such
Ii

upon

Bill.

a Certiorari Bill the cause

on to a hearing, the Court,

make

a Decree, or

Court

be

to

Court sends

send

it

determined

it

back

they think

and

may

sometimes the

and

Judgment, and before

v,

fit,

back to the Inferior

Stephenson

brought

after publication passed,

a Subpoena served, to hear

the hearing

if

is

Houl ditch, 2 Vern. 491,

EQUITY JURISDICTION

152
9.

Bills to perpetuate Testimony,

The very title of this Bill, explains it

Lord Keeper Egcrton expressed his
these

The

dislike

of"

Depositions are not

because, the

Bills,

use.

ordinarily published, but upon oath, that the wit-

nesses are dead, so that the Witness

by

is

not affected

the fear of temporal punishment. Indeed,

Lord

Chancellor Parker thought such Evidence eould

not amount
joined

The

to Perjury at

Law, no Issue being

f
.

Plaintiff's Title to

sets forth the

Bill

the

thing in question, or Interest in the subject, the

Matter touching which the Plaintiff

desirous

is

of acquiring evidence, the Interest in the Defendant, to contest the Title of the Plaintiff in the

subject of the proposed testimony,

nesses are old and infirm, or

that the wit-

sick, and not likely

to live, or that they are going to Sea

yond Sea

h
,

s
,

or are be-

examined

or that the facts to be

are of great importance, and no other

Witness*, or two Witnesses'

or are privy to them,

to be

whereby the

danger of losing his Testimony.

to,

but the

examined,

is,

Plaintiff is in

The

Bill

ought

also to 6tate, that the facts

about which the Wit-

f
Cann v. Cann, 1 P. Wms.
569; and see what is said by
C. Bar. Parker, 2 Eq. Abr.
402.
6 The
plaintiff will not be
allowed to examine witnesses
de bene esse, because they are
going to the East Indies, if
they are his servants, and he
might keep them at home,
Bunb. 320. Com. Dig. Tit.
Chancery R,

See what Lord Mansfield

says in Fabrigas and Moystyn,

11 vol. State Trials, p. 196.
'3 P. Wins. 77. Shirley et
al. v. Earl Ferrers, and the
cases cited in note 1. See also

Hawkins against Middleditch,

2 Bro. 641.
k
Lord Choi mondeley against
the Ear, 1 of Oxford, 4 Bro. 157.

PREVENTION' OF FRAUD.

examined cannot be immediately

nesses are to be

investigated in a Court of

Law,

material witness

is

by

likely to be lost

or departure from the

Realm

then prayed to examine

is

that before an

or

the evidence

investigation can take place,

their testimony

153

may

'.

Death,

Commission

if

be preserved, and a Subpoena

they can, to the contrary

should pray no

shews cause

to the

After the Bill

is

but the

contrary within

Bill

fourteen

not allowed to proceed m .

is filed,

the Court on an affidavit

verifying the facts as stated in the

Bill,

the Witnesses are material, will on

Petition, grant a

shew

If the Defendant

other Relief.

days, the Plaintiff

is

them, to the intent, that

also prayed to the parties interested, to

cause,

in

his

of a

Commission

if

and that

Motion

or

the Witnesses live

the Country, or beyond Sea.

If they reside

within ten miles of London it will order them to

be examined in Court, de bene esse, saving just
exceptions to the other side, which will make
their depositions valid in

against those

who

that cause only, and

are Parties to

it,

and

all

those

claiming through some or one of them", whose

interest has accrued, since the Bill

was preferred

but the Depositions must not be taken exparte,

without notice, otherwise they will be suppressed

If the Defendant afterwards answers the Bill,

the Plaintiff should reply, and

1
See as to this Mitford's
Pleadings, p. 51.
m 2 vol. Com. Dig. 291.
Cited Prac. Reg. 31.
n
Seethe opinion of the
Judges in the case oi* the Ban-

examine de novo

bury Claim pf Peerage, Dom.

Proe. delivered, on the 3UtU
May, 1801).
Lovedon against Milfurd,
4 Bro. C. C. 540.

EQUITY JURISDICTION,

134

the Witnesses before examined,

who are

alive,

and

upon the return of the Commission publication

is made of the Depositions thereby taken, with
the Depositions of the Witnesses before examined,

who were

dead before the second Commission

Depositions majr, by the consent of Parties, be

published whilst the Witnesses are alive

otherwise, depositions taken on

but

these Bills are

not, as before observed, ordinarily published, but

upon
are

oath, that the depositions of such Witnesses

necessary, and

are either

that they

dead,

and therefore incapable of being examined, in

chief, (as

they ought to be

if

possible) or so aged

or incapable, that they cannot travel or testify,

without danger to their lives

ness

is

gone

that there

Having

or, in

a moral impossibility
in

Chief

the Wit-

or that

to a great- distance

is

Examination

to

a word,

have an

r
.

stated the essential properties of a Bill

and the proceedings thereon,

of this nature,

it

what has been said,

may be proper
by the mention of some cases on the subject and
to illustrate

first,

as to the

Interest

title

to the

thing in

question, or

in the Plaintiff necessary to support the

Bill: with respect to which,

that neither a

Tenant

their Issue, can

file

it

has been decided,

in Tail in

such a

Remainder, nor

Bill to perpetuate the

Testimony to the Marriage of theTenant

Corbett, 1 Ves. and Beames*

v,

p. 335.

Corny n"s Digest, 2 vol. 292.

Sir N. Bacon's Rules,
Wyatt's Prac. Reg. 72 and 73.
2 Ves. 337 ; and see Corbett

in Tail, for

r
2 Ves. 337. and see what
Ch. Bar. Parker says, 2 Eq,
Abr. 402,

PREVENTION OF FRAUD.
a present

want of

Interest'.

cided, that the next of

155

has also been de-

It

Kin of a Lunatic, though

the Lunatic be in the most hopeless state, have

not such an Interest as qualifies them to file such
nor will such a Bill lie during the life-time
a Bill
1

of the Lunatic to perpetuate the testimony

Witnesses
v

Lunacy

to a will

made by him previous

but a vested

Interest,

of

to his

though the

least

valuable that can be conceived, gives a right to

preserve Testimony

w
.

has been determined that a Plaintiff is

It
(entitled to perpetuate the testimony of witnesses
to an usurious contract, notwithstanding his not

offering to pay

what

is

justly

due

And Lord

*.

Hardwicke has said, there is no certain distinction

laid down where a Man is forbid to perpetuate testimony as to personal demands against himself y
.

A Bill may be brought

many

in

cases,

where

to perpetuate

Testimony,

a Bill could not be brought

for relief without waiving Penalties

as in Waste,

ox in the case of a forged deed, or in the Case of

Insurances, after

Commissions

nesses beyond Sea, as to

yet,

in

many

examine Witfraudulent losses and

to

cases, fraudulent losses are subject

and are sometimes felonious %

was said by the Lord Keeper, in Gell and

to a penalty,
It

Allan
and Allan, MS.
loVes. 130.

w Dursley v.

S. C.

6 Ves. 251. Lo'.d Dursley

Fitzhardin^e.
v
lVern. 105. Sackville v.
Ayleworth, and dicta to the
'

v.

6Ves.

Fjtzhardinge,

2lil.

Atk. 450. Earl of Suffolk

Green see also what Lord
Hardwicke says, in Chaucey
v.Tahourdin, 2 Atk. 293.
* 1

v.

same Effect by Lord Eldon,

lb.
1

JHS.
y.

Atk. 450. Earl Suffolk

Green,

EQUITY JURISDICTION.

15(3

"Hay ward *,

would not allow examina-

that he

perpctuam

tions in

Common,

things as right of

Courses; or, at least, not

Such
prove a

a Bill will

till

death of

d
.

So

will

it

and before the action

a Bill was

at

filed against

after

dants might

Water

a Recovery at Law h .

So, to prove a pro-

lie,

Law

the

after

in aid of a legal title,

is

brought

the East

India

as

where

Company

Commission

to

and that the Defen-

in India,

discover

trivial

examine Witnesses to

and their Secretary, praying

examine witnesses

or

be performed

to

is

or of Ways,

to

lie

Modus dccimandi

&c. which

mise,

inemoriam, for such

rei

by what

authority

the

Plaintiff was dispossessed of a Lease for supplying

Madras with Tobacco, the Plaintiffs intending to

But in Egerton and Moshjn,
bring an Action e
.

was held

it

for perpetuating the

not be supported

f
;

was committed by
in the former case,

whom

Action brought, a

that before an

Bill

testimony of witnesses could

but in

this case the

Trespass

known Defendant, whereas

the Bill was to discover by
a

the Trespass was committed.

Where lands

are devised

by

will,

and there

is

no

occasion or opportunity to prove and establish

it at

Law,

such a

it is

Bill as

a very

common

this, against

though by the same

will,

practice to

the Heir at

Law

file
;

for

goods and chattels are be-

queathed, yet the proving the same in the Eccle1

Vern.

last

Edition, p.

812.
b
v.
lb.
p. 308. Paulet
Jnorev.
c
1 Yern. 184. Somerset v.
Fotherby,

Com. Dig.

tit.

Chancerv,

R.
e
Bro. 469. Mordalay
1
against Morton.
f
lb. 470. Mordalay against
Morton,

PJ1EVENTI0NT OF FRAUD.
siastical

Court

3k57

will be of no avail with respect to

Lands thereby devised. The Defendant having appeared and answered a Bill for this purpose,
the parties proceed to Issue as in other cases, and
the

then the Plaintiff examines

living, to the proof of

all

the Witnesses,

them

the hand -writing of such of

if

or proves

the original will,

as are

dead,

which being done and publication passed, there

After Publication of the
is an end of the Cause.
Depositions of the Witnesses, in these cases, in
order the better to perpetuate their testimony,
is

usual to inrol the pleadings, with the

Commis-

and Depositions, and

sion, Interrogatories

it

after-

wards to exemplify them under the seal of the

such exemplifications become evisupport of the title of the Devisee in all

Court, and

dence

in

Law

Courts of

and Equity

and no other proof

is

necessary of such Copies, than the production

of them
If,

in a Bill to perpetuate testimony

a right of
Bill are

Common and Way,

and not

too general,

tive of any particular right, a

for the Bill

trans,

in the

must

set

With

respect to

the charges in the

sufficiently descrip-

Demurrer

will hold

out the way exactly per

same manner

out in a Declaration

respecting

at

as

Law

it

h
;

et

ought to be set

'.

the statement in the Bill of

the matter touching which the Plaintiff

is

desirous

of acquiring evidence, Lord EUlon\\&s observed

Law of Evidence.
Teak's Evidence, p.

Gilb.
p. 19.

SO.

h
1 Ves. jnn. 449. Cresset v.
Milton, S. C. 3 Bro.C. C. 48L,
dell v. Uuwvaid, 1 Vern.
312,
'

EQUITY JURISDICTION

1;33

that great danger

that the facts

may

arise

out of such

Bills,

and

Plaintiff wishes to

which the

be

examined to, should be particularly stated*.

As to shewing the Interest of the Defendant
to contest the title of the Plaintiff in the subject,

has been determined, that, to a Bill brought to

it

perpetuate testimony as to the legitimacy of the

who were

Plaintiffs,

mainder

Infants,

in Tail, after

and entitled to a Re-

an Estate for Life, against

by those who
were the seventh and eighth in Remainder, on
the ground, that their Interests were too remote
to justify their being made Defendants, was
others in Remainder, a Demurrer,

overruled

'*

Lord Eldon put a case, where, it seems, he

thought a Demurrer would lie as where there
is an eldest son illegitimate, and a devise to him
;

by

who

his Father, in Tail,

to descend

and
first

and he also has a Son by marriage,

a dispute has arisen

was not

illegitimate

versioner should

mony
" that

in

am

file

the eldest insisting he

and the younger that the

marriage was to

"

leaves the Reversion

his"

Mother

a Bill to

and he as Re-

perpetuate testi-

not quite sure,'* says Lord Eldon ,

such a case the elder might not say, he

being in possession as Tenant in Tail, might suffer

Recovery and

destroy

the

Reversion, and

therefore Equity could not interfere" ."

1

As

to

the

Witnesses being old

seems, that a Witness

k
1

v.

is

Bartlett and Hawker, MS.

6 Ves. 251. Lord Dursley

Fitzhardinge.

not,

and

for the

infirm,

it

purpose of

m 6 Ves. 201. Lord Dursley

v.Fitzhardinge, Allan v, Allan,

MS.

PREVENTION OF FRAUD.
this Bill, considered old, unless

of age

he

159
is

seventy years

but in one case, an order was made to

examine a surviving Witness to a will, de bent

upon an affidavit that the parties concerned

esse,

and that the Witness was upwards of sixty years old, and greatly afflicted
with the Gravel .
lived in

Virginia,

With

respect to

Court of Lav,

it

a previous investigation in a

may be

rer will lie to a Bill

impediment

Law p

of this kind,

it is

there

is

no

to preserve the testimony

who may

of Witnesses old and infirm,

a Trial at

if

Plaintiff trying his Right at

to the

unless where

Demur-

observed, that a

die before

Law.

Devisee will not be allowed to examine

Witnesses, on such a
a purchaser without

Bill, to

prove a will against

notice, until the

been established by a verdict

at

Law

will
q
;

has

and

in

such case, a Purchaser may protect himself by

plea\ or demurrer'. But it is otherwise when

the Party filing the Bill, is himself in possession,
for then,

Law.

at

he has no occasion to establish his righl

On

these grounds,

that if such Bill

is filed

has been holden,

it

by one, out of possession,

having only a right to a fishery, a demurrer will

lie

"^

Ambler,

G5. *Fitzhugh

against Lee.
lb.
p

1 Vern. 441. Parry

v.
Rogers, 1 Dick. 55. Cox v.
Colley, Wyatt's Prac. Reg. 74.
I P,
Wins. 117. Philips v,

Carew, BrantUin
v.
Ord,
Atk. 571.
" 1 Vera. 354. Bechinell v.
Arnold.
1

lb.

'

Vern. 441.

Parry

v.

Rogers.
Prec.

C'h,

531,2. and see

EQUITY JURISDICTION .
-

1<?(?

"With respect to Costs in Bills of this kind, they

are never given against the

Defendant
after the

Defendant v and the

;

entitled to his costs immediately

is

commission

is

executed, provided he did

w
not examine ariy Witness

Where

a Bill

is

brought against an Heir at Law, to perpetuate

the testimony of Witnesses to the will, though

he by his answer neither confesses or denies

its

make such

validity, but leaves the Plaintiff to

proof of the due execution of it, as he shall be

advised, and though the Defendant cross examines

the Witnesses, yet he

taxed Costs
his

own

but

as to the

by makes use

if

entitled to be paid his

is

he examines Witnesses of

Execution of the Will, he there-

of the Plaintiff's Bill to perpetuate

testimony on his part, and

is

not,

it

seems, entitled

to his costs*.

10.

Every
less,

and

Bills of Discover?/.

a Bill of Discovery
to

an answer,

Bill requiring

which

that title

employed merely

is

for the

but the

is,

more or

Bill here

peculiarly given,

Discovery of

meant,
is

a Bill

facts In the

knowledge of the Defendant, or of Deeds or Writings, or other things, in his custody or Powerj
but praying no

further, or other Relief

or merely

a Commission for the examination of Witnesses

what

is

said in

v. Pilkingtort, 1

Mayor of York
Atk. 284.

v
Clifton v.
1 Atk. 610.
Orchard. The case in 2 Atk,
107. is not now the rule.

Foulds

v.

y\

Midgley, 18Ves.

138.
x
1 Sen. and Lefn 317.
* See 1 Ero. C. C. 471.

1'REVENTION OF FRAUD.

1^1

is

usually employed, in aid of the

Jurisdiction of

some other Court, (even of a

This Bill

Foreign Court

if

necessary,)

enable

to

the

Plaintiff to prosecute or defend an action, a pro-

ceeding before the Council, or any other legal

proceeding, of a nature merely civil % before a

which cannot compel

Jurisdiction

on Oath

but,

Discovery

Chancery

appears, the Court of

it

hasin some instances, refused to give this aid to the

Jurisdiction of the very inferior Courts

';

give a Discovery in aid of an arbitration

it

Bill lies also in aid

nor will

c
.

This

of proceedings in Chancery,

in order to deliver the party

of procuring Evidence

11

from the necessity

And

is

it

observable,

that wherever the assistance of a Court of Equity

upon

required,

is

equitable

circumstances, a

Discovery, for instance, a Bill will

demand; and

such case, the

in

lie for a

legal

Bill is retained,

with liberty to bring an action*.

The

Bill

Discovery
or

states
is

the matter touching which a

sought, the Interest of the Plaintiff

Defendant

in

subject,

the

and the right

of the former to require the Discovery from the

latter

f
.

*
Mitf. 150. n. 1. and see
2 Anst. 467.
J
Ld. Mouutague v.Dudinan,
2 Ves. 398.

Mitford's Pleadings, p. 52.

1 Ves. 205. Earl of
Derby v. Duke of Athol.
c
6 Ves. 821.

See also

d
Lord Montague
man, 2 Vi s. 398.

VOL.

I.

v.

Dud-

See Buxton v. Sidebotham,

2 Ves.juu. 520. see also Stevens v. Praed, 2 Ves. jun. 519,
Wright v. Hunter, 5 Ves. 792.
v. Dacie,
Barker
see also
C Ves. 088.

See to this effect Mitford's

Pleadings, p. 52.
f

EQUITY JURISDICTION.

lu:

With

accompany

respect to affidavits to

Bills

of this description, the rule appears to be that,

where

a Party

comes only for discovery of a Deed,

he need not make oath of the loss of

must do when he comes for Relief

it,

for

he

as

he

is

not allowed to translate the Jurisdiction, without

Oath made of the

is

loss of the

on the

the Discovery

face of the Bill,

it

1
Vera. 247. Godfrey v.
Turner. See also 2 P. Wins.
546. Whitchurch v. (folding,
and the cases there cited,
Anon. 2Atk. 17; and see ante

and

this

immaterial', or where
appears, there can be

would be merely imdiscovery of

general, no demurrer can be to such Bill for

be brought

for

writings in

want of an affidavit annexed ;

but if a Bill be brought for
particular
or Bond, for which there

the discovery of a

24.
h

3 Atk. 132. Dormer v.

and see Anon.
Fortescue
3 Atk. 17. There are, however, some cases which seem
;

to the contrary, such as Prece-

dents in Chancery, 536, and

1 Vein. 59. Anonymous, where
it is determined, that when a
Man exhibits a Bill for the
discovery of a deed, and prays
in hi* Bill a discovery only,
there an oath must be made
that the Plaintiff has lost the
Deed; see also Bunb. 46. and
Finch's Rep. 239. The learned
Editor of the last Edition of
Vernon, in his note to the case
in 1 Vein. 59. approves the
doctrine as stated above; but
in his note
to the subsequent case, in 1 Vern. 180.

Anonymous,

seems to adopt
the case, inPrecedentsin Chanlie

cery, 536. In Gilbert's Forum

Romanum,p.52.the distinction
is

is

a discovery

no remedy,

the constant distinction

Where

Deed

stated to be, " that if a Bill

Deed

is a proper remedy at Law,

then they must annex such
affidavit to the Bill, though it
be but for discovery, because
otherwise, the answer would
be but an unnecessary exIlinde seems to have
pence."
copied this statement of Gilbert. See Hinde's Ch. Practice
Indeed, the
1 vol. p. 143.
Books of Practice have shewn
discrimination on the
little
subject; but, the true distinction sewms to be as above

and certainly it accords with the old practice,

as appears by " The Clerk's
Tutor in Chancery," Introduction, p. 41. See also 8 Vin.

stated,

Abr.

p. 550.

Mitford's Pleadings, 155.

and the cases there mentioned :
and see 1 Bro. C. C. 96. 1 Anst.
82. Hinks v. Nelthorpe, 1 Vern.
1

204.

PREVENTION OF FRAUD.
pertinent,

and

where the

Bill

or

is

stated

by the

not enforced

therefore

avers that an

where the necessary

Bill,

1G3

action

effect in

is

Law

but

brought,

of the case

appears to be, that the Plaintiff

has a right to bring an action

he

entitled to a

is

discovery to aid that action, so alledged to be

brought, or which he appears to have a right and

an intention to bring

down,

that a person can

who are

to state

action

but

'";

is to

stances as

taken to

has never been laid

it

a Bill, not venturing

file

be brought, nor stating

such circum-

but stating

circumstances, and avowing that he

an action

to

of them

n
.

these Principles,

to a Bill

sufficient certainty,

which did not

by

has a right

Defendants,

the

against

Upon

was allowed,

whom

some

or

Demurrer

alledge with

the duties claimed

by the City of London under Letters Patent,

respect of which, a Discovery

of an

action,

were payable

See Rondeau and Wyatt,

and see
C. C. 154
4 Bro. C. C. 180. 2 Ves. jun.
56. 3 Ves. 422. Finch 30,44.
Mitford Pleadings, 151.
It is by no means necessary

3 Bro.

an action should he
brought previous to a bill of
discovery in support of an
action, Mordaly v. Moreton
and East India Company, 2
that

(he

may enable the Court, which must be

know the Law, and therefore the lia-

of the Defendants, to judge,

bilities

whom

Persons against

the

was prayed

in

in aid

If the Bill

had

S. C. 1 Bro. C. C.
4G8.
m In Finch v. Finch, 2 Ves.
294. it was said a Bill of discovery does nut lie to create
evidence for a future cause;
but see 1 Bro. C. C. 409. q.
2 Dick. G52.
n
8 Ves. 404. Mayor and
Citizens of Loudon v. Levy,
8 Ves. 398. lb.

Dick. 34.

EQUITY JURISDICTION.

Iu4

that

stated,

managed

by reason of combination,

that

and therefore there ought

action,

been so shaped
It has
of,

p.

some concealed deed of

and held, that every Heir

what Deed he

is

disinherited,

states the particular facts,

dant

may

Plaintiff

is

not Heir

by

his Bill, he

it

his

the Defen-

seems,

9
.

lb.

See li P. Wins. 295. Tanner v. Wise.

r
1 Atk. 540. Harrison v.
Southcote.
s
Seel Vid. contra, Gun and
Prior, 2 Dickens 057.
but
more at length in note to
i

Forrest's Ken. p. 88. see also

Wallis, 2 Bro.

Newman and

LordThurlow seems
doubt whether he had determined that case rightly,
143. But

to

JSeeHoyle against Noyea, 3 Bro.

489. Forrest's Reports, p. 85.
Lord Kedesdale in his, excellent Treatise, observes, that
Bill,
if the Plaintiff. by his
btates himself to have an Interest

if

plead, in bar of the discovery, that the

*8Ves. 405.

which

entitles

him

to

on the Defendant for a

discovery, though, in truth,

call

has a

on which he founds

but in such case,

Law

at

by what means, and under

right to a discovery,

claim

no need

but Lord Hardwicke carried the Rule

farther,

in

Discovery of Writings,

call for, a

unless he claims under

q

might have

it

been held that an Heir stands

nor can he

Entail

be an account

to

of the Fees in a Court of Equity,

was so

not bring an

Plaintiff could

the

it

he has no such Interest, the

Defendant may by plea, protect himself from making the
discovery, as

it

may

involve

him in difficulty and ex pence,

and perhaps may be prejudi-

him

other cases.
a Plaintiff
states himself to be Heir or
Administrator of a person
dead intestate, and in that
character seeks a discovery
from a person in possession of
cial

to

in

Thus, says he,

if

property which did belong to

the deceased, of his title thereto, or of the particulars of
which it consists ; the defendant may plead that another
person is heir or personal representative, or that the person alledged to be dead, is
living.
Mitford's Pleadings,

PREVENTION OF FRAUD.

TheTitleof an Heir,

is

him, he has nothing

do with the Deeds, unless perhaps in the case

by his Ancestor

of a Peer disinherited
he,

it

Court would remove

legal right.

Will

nor

is

not so with an Heir

beyopd the general

the

way which

Deed

in Tail

right,

an Heir

such an In-

creating the Entail, that the

would compel the production of it

IfaPlaintifThasset forth a Title

to the Defendants, he has
ing, to look into the

no

in part
*;

part the Plaintiff's title

in

if,

contradiction

title";

speak-

but

if

the

the defence, and in

for instance, the Bill

charges that by producing the Deed,

pear that the person under

that

right, generally

Defendant's

same deed constitutes

claims,

Tail;

'm

against the person holding back

Court, as

the

in order to his asserting his

no answer to an Heir

is

terest in

is

It

in Tail has,

deed,

seems, entitled to a discovery, unless there

are Incumbrances, standing in the

cannot

a legal one. [fh

set aside a will disinheriting

to

MJj

whom

it

will ap-

the Defendant

only Tenant for Life, some answer must

is

be given, and a statement of what a Defendant

p. 223. Owl against Wilkinson,

Trin. 177-J. See Forrest's Rep.
in note to p. 90. Mr. Fonbtanque in his able notes to
"theTreatiseon Equity,"2Vol.
484. n. e.hus adopted this very
reasonable doctrine; and the

Practical Register, p. 326. last

Edit, supports it, and so, also,
does a case in Finch, '''inch's

Rep.

p.

36

liut it

of consideration

more modern ease

is

deserving
be

whether
to

which

have alluded, in Forrest, ought

to be considered as correcting
the generality of the pjroposition they enforce,

See iarl of Suffolk v. Howard, 2 P. Wins. 176, but see

the observations on that ease in
Hylton v. Morgan, 6 Ves. 200
'

"
Shaftsbury
Lord
A; row smith, 4 Ve. 71.

See 13 \

lb. 25*^.

es.

251.

-and

EQUITY JURISDICTION.

\66
barely knows

must

state

and

how

believes is

the fact

is

Defendant pleaded he

by the Deed.

If the

was a Purchaser

valuable consideration,

Where

not sufficient, but he

would be

it

for

different

a Bill prayed that the Defendant might

and

state the particulars of his Pedigree as Heir,

of the

Births,

Baptisms, Marriages, &c. a De-

murrer was allowed

y
,

a Plaintiff having

no right

to a discovery unless he lays a foundation for it\

Bill of this nature lies, it seems, against third

persons for the discovery of monies paid

So

notice of a Sequestration*.

it

lies for a

after

disco-

very of Concealments of a Bankrupt's Estate h

lies, also,

It

against Assignees to discover a fraudulent

Bankruptcy, to defeat the

Plaintiff's

Execution

So, a defendant, a Lessee, has fceen compelled to

was expired

discover whether his Lease

and

to discover to

whom

or not A ;

he has assigned*.

But

the Assignee of a Lease will not be forced to dis-

cover whether the Lease has expired,

purchaser and not bound to discover

he being a

f
.

A Bill of discovery lies to ascertain Boundaries^

Such

a BilHies also for a discovery of Court Rolls,

Ledgers, &c. to be used at a Trial, relating to the

x

Deacon, 1 Ves.

38 and see Hall v. Daniel,

2 Vern. 403. and the cases in

Stroud

v.

the note.
y Ivy v. Kekewick, 2 Ves.
679.
z
Rennison v. Ashley, 2 Ves.
jun.
*

Simmonds

v.

naird, 4 Ves. 735.

b

Atk. 289.

Lord Kin-

King v. Martin, 2 Ves. 641.

Tothil, C9.

8 Vin. Abr.

536.
e

Tothil, 71.

8 Vol. Vin. Abr. 550. Fonblanque's Treatise of Equity,

2 vol. 488. I cannot find
the Case referred to in Vernon.
g Aston
v. Lord Exeter, G
Ves. 293.

PREVENTION OF FRAUD.
Plaintiff

and Defendant 6

for the discovery

or

\G~

a Note, Deed, &c. though six years

for the Statute of

a Bill

dit

may

So,

impowered

be
lies

it

by

no plea

to bring a

Lord of a Manor

very of Treasure Trun

and, as

to

such

it

Quarc impefor the disco-

seems,

in a

proper

and production of a Died

case, for the discovery

in aid

is

discover a Patron, whereby the

It lies to

''.

Party

Limitations

of

are elapsed

of an Action for a fine

under the

stat.

9G. 1. c. 29'. So it lies against a Lord of

Manor to discover Court Rolls'"; and by the

of the
a

Attorney Gen end against an Outlaw to discover his

Real and Personal Estate

or

by the Patentee of

the Goods of a Felon, or one outlawed

and

for

the

discovery of a Promise of Marriage, in aid of an

Action of Assumpsit

ing to the Plain tiff q .

or of goods pawned, belongSo,

where a Ship took

by the negligence of the Master

such a

Bill

was held

the Plaintiff

to

or Ship's

fire

Crew,

to lie for a discovery, to enable

bring his Action'; similar to the

Case of the Owner of a Wharf and Lighter, against

whom

such a

Bill

Plaintiff to bring an

was brought,
Action

lor

to enable

damages

his

the

goods

had sustained, by the negligence of the Lighter-

man \
Hard.
"
'

180.

Ch.Rep.

14.

Bunb. CO.

Tothil, 202.

Bunb.

18.

See 13 Ves. p. 240.

m 2 Ves. 621. Anonymous.
n
Hard. 22. Eq. Ca. Abr. 75.
S. C.
^ Cary Rep, 1. 21. Hard, 52,
1

Treatise of Equity, 2 vol. p.

4S1. Mr. Fonblunque's edition.
Forrest's Rep. 42.
q Hoare
against Parker,
1
Bro. C. C. 578.

Fonblanque's Treatise of
Equity, 2 vol. p. 4S1.
Sir John Heathcoate v. Sir
John fleete, 2 Venn. 442. la#t
'

'

equity JuntSDiciioir.

168

been held that

It has

Son against

if a

Bill

is

brought by

it

is

so, if for a discovery in order to

entitled

Mortgage

and the Lord Chancellor

for proper purposes^

"

Law,

an Action to be brought at

or relief sought in a Court of Equity, he

to

Deeds,

his Father for the discovery of

as auxiliary to

at

said,

determine whether in Case the Son

will not

was about marrying, and the Father

will not

discover his settlement, and what right the Son

entitled to, in that Case, he

is

But the Court

such a discovery."

way

to

new

to

have

will not give

inventions, in order to promote suits

and uneasiness

Such

ought not

in Families*.

a Bill lies against a Jointress to discover

Writings; but in such case, the Plaintiff must

agree to confirm her Jointure, and such, Serjeant

Maynard said, was

A discovery

the Course of

Chancery

has been decreed, though against.

the express words of a Will, importing that " the

declaration

of the Executor should be taken,

without being compelled thereto by

Judgment

LawV'

Creditors have a right to a

discovery

where the Creditor's Real or Personal Property

is,

in order to

So, a Bill

make

maybe

their

filed against a

edition, and see also Morse v.

Buckworth, ib. p. 443.
'
Ambler's Rep. 154,5.
Lord Lempster against Lord

Pomfret.
*

Ventris, 198.

Ford

Judgments

v.

Peer-

available

Bankrupt and

31

his

Ves. .Tun. 76. Senhouse

2 Ves. 450.
w
2 Ch. Cas. 198.
x
Vid. Mounttbrd v. Taylor,
6 Ves. 792.
ing,
v.

Earl,

MILVCNTIOS OF FRAUD.
Assignees to discover

employed

fraudulent Bankruptcy,

to defeat the Plaintiff's

A. obtains

If

Judgment

out Execution and gets

he may bring a

IC'9

it

Execution

against

15.

and takes

Bill against the

Defendant or any
Personal Estate of

B. and by that means to affect the same

Years

for

returned, Nulla Bona,

other, to discover goods or

Tenants

7
.

And

are compellable to discover the

time of the making,

Commencement and Deter-

mination of their Leases, and what Rents are

re-

served, and the times the same are payable, to the

end, that the same

may be

an Extent

liable to

Suppose a Box of Jewels was pledged

subject.

by a Person, not the Owner, but

mere Bailee

the Pawnee supposing the Person

actually the true

would be no

in obliging

it

Any

to explain,

another, only claiming the value for

was pledged,

a description that will

the subject of an Action at

wise,

him

difficulty

out that Property, of which he admits the

set

title to lie in

it

there

Court of Equity

which

in possession

Owner, and there being no reason

to think otherwise,

and

put the following Case on this

Lord Rosslyn

in a

Person

may

King

v.

file

in possession as

Martin,

2 Ves.

1
Balch v. Wast all, cited by
Mr. Vernon, 1 P. Wins. Rep.
see also 1 Vern. 301).
445
;

Toth. 281.

make

'.

Tepant, or other*

a Bill for a discovery of the Title

641.

bniitliier v. Lewis.

Law

b
3 Yes. 220. Strode v.
Blackhurne, see also 1 Vern.

307. E. 1. Company v. Evans,

and expressly to the same
lb. 407. Mftrsden v.
effect,
Panshall.

EQUITY JURISDICTION.

170

of one bringing an Ejectment against him, even

though he

is

So such a

wrong doer

against every

put on board a Ship, though insured

no

Interest

at

a sum

Counsel

may be obliged
which he had stated to his own
Person

in the

So

Case

and the

opinion,

for his

stated

facts

e
.

a Bill lies for the discovery of Assets, to enable

the Plaintiff to bring an Action at

an Executor or Administrator

Testator

came

for a

Prisage

is

Law,

but in

the Bill must charge, that Assets or

So

sum

It has been holden that a

to discover a Case,

for the value of the

Goods saved, ought to be deducted out of the

d
to be paid forInsurance

discovery of Goods,

Bill lies for the

certain, Interest or

body

against

this

case

Goods of the

to his hands'.

discovery of

due g

Wine

imported, for which

or against an Auditor for a dis-

covery whether the particular by him made

true,

King,

though he
if false

Such

is

is

Jineable, for the deceit to the

h
.

a Bill does not

lie

to

compel a Purchaser

for a valuable Consideration, without notice of the

make a discovery which may

own Title and this is " an infallible
And the Assignee of a Purchaser for a

Plaintiffs Title, to
affect

his

Rule'."

1 Ves. 248.
Metcalf
Harvey,
d
2 Vein. 71G.
e
Stanhope v. Roberts,
Atk. 214.
Ch. Ca. 220.
Hard. 138.
'

v.

lb.

Jerrard v. Saunders, 2 Ves.

Jun. 454.
see many Cases
ou this subject collected, 8
Vin. Abr. 546. and what Serj,
Mavnardsavs, 1 Ventr. 19S.
*

PREVENTION OF FRAUD.

171

valuable consideration without notice,

to the

same protection

gagee

may

On

k
.

entitled

is

ground a Mort-

this

protect himself from a discovery of his

Title Deeds, although the Plaintiffbrings his Bill

to

redeem ever so strongly

is

an exception in

a discovery

".

So, too, such a Bill will not

Nor

ing a Formedon,
.

lie

to

a Praecipe on a Voluntary

to

will

Tenant of the Freehold,

without

this Utile there

Cases where a Dowress claims

discover the Tenant

Conveyance".

but to

';

it lie

But such a

who

is

purpose of bring-

for the

there

for

to discover

ways

are

know

to

it

Bill lies for the discovery

of a Tenant to an Estate whereby to ground an

Action of Dower p
does not

lie in

siastical Court,

or in a

because that Court

1

enable the Plaintiff to

Nor does

it lie

make him

port of afresh Action.

Sweet against

It

to discover

party

a.

After a Verdict, such a Bill does not

As where

is,

Southcote,

sup-

lie in

the PlaintifTfor

Vern. 212. Sherborne

v.

Toth. 84.

Hard.

Dun v.

Abr.

131).

Cotes,

8 Vin. Abr. 537

v.

him

Clark,

lb. p. 273; see also Vin.

8 vol. p. 037. lb. 554.

Derby

to

a Bill".

to

able to prove a Letter wrote to

Lowther
C. C. 66.
against Carlton, 2 Atk. 139,
242. S. C. temp. Talbot, 186.
Barn. 358.
'Senhouse v. Earl, 2 Ves.
450.
'"
Williams against Lamb,
3 Bro. 264.
" Sherborne v. Clark, 1 Vern.
273. Stapletonv. Sherrard, lb.
p. 213. S. C. Eq. Cas. Abr. 76.
Stapleton v, Sherrard, 1

2 Bro.

capable of

is

a particular person exists, or where he

want of being

aid of the Jurisdiction of the Eccle-

enforcing a Discovery

whether

Case of Partition

Duke

Ves. 205.
2 Ves. 451

Atk. 289.

see also Earl

of Atliol,

and Anonymous,

'
Chancey
2 Atk. p. 393,

v.

Tahourdin,

EQUITY JURISDICTION.

172

by the Defendant,
up

filed a Bill

of Discovery to clear

the matter, the Defendant pleaded the Verdict,

and that the

Evidence

the

at

was given

in

and also demurred,

for

of the

effect

Trial,

Letter

want of Equity, and the Plea and Demurrer were

allowed

So

l
.

in

paid in part of an

another Case, where

Account

for

Goods, but the Re-

whole was recovered

ceipts were lost, and the

Law, and

Money was
at

a Bill of Discovery was then filed, the

Lord Keeper North

"you come

said,

a Discovery after a Verdict*

It appears to

too late for

J*

be an established Rule, that (ex-

cept in the Case of Corporations w .) a mere wit*

ness cannot be
description

made

a Defendant to a Bill of this

and therefore

*;

brought for a Discovery

Demurrer was on

in

where

Bill

was

of an Action, a

aid

ground allowed, though

this

would probably have

the discovery in this Case

proved more effectual, than the examination

Law

and though there was a charge

at

in the Bill

of an Interest in the Defendant, with reference to

which he might be used

tiff,

voir dire
1

So, a Witness to

Ch. Cases, 65. Vin. Abr.

542.
Barbone v. Brent, 1 Vera.

p. 170.
w

Wych

a Will cannot be

Ves. 42G. Finch v. Finch, 2 Ves.

493. Cookson v. Ellison, 2 Bro.
C. C. 252. Cartwright v. Hateley, 1 Ves. Jim. 202,
y Fenton v. Hughes, 7 Ves.
'

Meal, 3 P. Wins.
310t Anon. 1 Vera. 117. and
see Le Texier v. Margravine of
Anspach, 15 Ves. 159.
1
See Fluinmer v. May,
"

if

him might be examined upon the

vol.
T

by the Plain-

he waiving" the objection of Interest, and

called against

as a witness

v.

Plumrner
Finch v.
Finch, 2 V>s. 493. Whitworth
v. Davis, 1 Ves. and Bea. 549.

Jun.287 see
v. May, 1 Ves.
;

also

42(5.

PREVENTION OF FltAUD.

made

a Party, unless

where the Will

Witness answers, he must answer

a general

is

merely to

impeached

is

But

by fraudulent practices.

as obtained

It

173

fully

it'

\
not

Rule, applicable, indeed,

but to

this description of Bill,

all

kinds

of Bills, that no person can be compelled to give a

may

discovery that
tion for Felony

of Scandal
sation

a
,

c
,

or to

% or

or

him

subject

answer what

to

what may lead

and not merely what musl

f
,

e
;

is

to a

what may subject him

nature of a penalty

a Prosecu-

to

a matter

legal

accu-

to a penalty,

or any thing in the

or Forfeiture

but

if

Plaintiff waives the Penalty or Forfeiture, the

fendant must

then

ought

-all

to be

by

discover

those

who

';

but

the

De-

the waiver

can claim any part

of the penalty or forfeiture; for

if

the penalty

belongs one half to the King, and the other to a

Corporation, the waiver by the Corporation, and
not by the Attorney General also,

is

not sufficient

'.

the Defendant has cocenanted'jo answer any

But

if

Bill

of Discovery, and not to plead the Acts in-

;
Pearson against Pearson,
IBio. 293.
1
Cartwright v. Green, 8 Ves.
408.
b
See Franco v. Bolton, 3 Ves.
370.
c
Finch v. Find), 2 Ves. 492.
f Bishop of London v.Fytche,
I
Bn>. <j.s. Exparte Symes,
II Ves. 525. Mayor, &c. of
London v. Levy, 8 Ves. 405.
"Harrison v. Southcote, 1

Atk. 539. Harrison

v.

South-

2Ves. 3S9. Urownsword

Edwards, 2 Ve's. 245.
Smith v. Read, 1 Atk- 529.
Rep. 08.
Toth. 69. 2 Ch.

cote,
v.

'

Eq. Ca. Abr. 77.

u
Bird v. Hardwicke,

Vern.

109. E. I. Com. v. Sandys,

129. E. i. Com. v. Evans et
al, 300. 1 Ch. Rep. 144.
E. I. Com. v. Sa:idys, I
Vern. 129.
'

EQUITY JURISDICTION.

17-i

dieting penalties

in

such case he

is

bound

to

answer.

Barrister

ings he has

Cause

is

not bound to discover as to writ-

any thing he knows

seen, nor

as Counsellor';

but

if

in a

any thing comes to

knowledge before he was a Counsellor, or upon

his

any other account, he

In one case

it

revealed under

one not

is

obliged to

was doubted,
the

a Barrister,

condition

if

Answer m

thing were

of

Secresy

to

whether or no he would be

obliged to answer".

So an Attorney cannot be obliged

to discover

matters relative to the Estate, and Affairs of his

Client

but he

is

compellable to answer, whe-

ther there are Deeds, and also, where the

whom

they are delivered, and

and

to

last

saw the same, and

to produce

of them

Where

the

dates or

It is said a Trustee

are,

when he

whose custody

in

or discover

produce writings 9

same

but not

contents

may and ought

to

several are Partners

in

an unlawful or

Clandestine Trade, and one of them brings a Bill

of Discovery against the others, they cannot plead
that their

Answer may

subject them to the penalty

of an Act of Parliament

by

for

their going

on

in

such Trade they seemed to have entirely waived

that unlawfulness as between themselves
k
1

Strange, 1C8.

Bulstrod v. Letchmere, 2

Freeman 5.
n

I Finche's

Ventr. 197.
Gilbert's Eq.

Rep. 82.

S. C.

8 Vin. Abr. 540.

lb. 5.

p Finche's Rep. 259.

8Vin. Abr. 548.
<*

m lb.

Rep. 18G,

PREVENTION Or FRAUD.

The Court of Chancery

Law, and not suffer

its

175

Remedial

will also a

own

notions

use of to elude any beneficial law

as if a

made

to be

Trustee

does by Fraud and Combination with the Cestui

que Trust endeavour

the

stat.

Trust

only cognizable

is

will

As

law, as

if a Bill is

8
.

titled to a Discovery, a

incumbent on the
according

But where

brought

Demurrer

has been

for a

Discovery

the Plaintiff

is

will lie

only en;

for

it is

shape his Bill

to

Plaintiff,

what he has

to

it

Relief,

Case where the Party

Relief, in a

and that

Penalty or Forfeiture,

assist a

he Bill not praying

determined, that

and

in Equity,

compel a Discovery

to

any penal

of Simony, &c. under the pretence that a

Equity should not

it

to evade

a right

pray

to

entitled to the dis-

is

covery he seeks, in support of an Action, and he

prays for general

relief,

sequential to the
Injunction,

may be

it

doctrine

covery and
for the

a Plea

prayer

for

that

to
if

Relief,

observe
Bill

not
that

lie

as

modern

if

is

sought

a Demurrer, or

will hold to the Relief prayed, the

fendant cannot have the Discovery.

kinson, ll Ves. 500

and

see

an

And

the

and the discovery

' Eq.
Ca. Abr. 131. 8 vol.
Vin.Abr.-547.
3Iuckleston v. Brown, G
Ves. 02. Cordon and Simp*

con-

be brought for a dis-

purpose of the Relief,

*,

is

discovery,

Demurrer does

useful

is,

or for relief that

Price
310.
"

And

it

against James,

Brandon

v.

De-

seems,

2 Bio.

Sands, 2 Ves.

jun. 514.
x

Sutton v. Earl
y Ve>. 71.

rougfc,

S:urbo-

EQUITY JURISDICTION.

17t>

the Bill prays Relief, as well as a discovery, and

if

the discovery

Relief, a

auxiliary to the

is

murrer to the discovery alone will not hold

Upon

De-

praying nothing but a Discovery,

a Bill

the Defendant

Attorney

entitled to Costs

is

and

but Mr.

Client*;

between

as

Justice

Buller

thought the Rule thus laid down, was too general;

and was of opinion that

and goes

to the Discovery,

first

he ought not

to

file

have Costs; but

first

covery in that way, in which

each other ought

pay Costs

first to

Plaintiff

is

if

the Plaintiff

to get the dis-

Men

acting with

ask their rights, he ought

Law

In a Case at

the

a Bill for a Discovery,

without trying

files his Bill

Defendant

in justice a right

the Defendant refuses, and

thereby compelled to

to

to the

Accounts, he has

to ask for the

to, if

the Plaintiff is entitled

if

c
,

the Counsel

complained of the hardship of a Plaintiff in Equity

being obliged to pay the Costs of a Discovery

upon which Lord Kenyon observed,

that he had

once heard Lord Mansfield say, he thought in such

the Court of

a Case,

Costs paid to the

Law

at

that he

Law ought

Defendant

to allow

in Equity, as

the

Costs

was struck with the propriety of

the observation, and thought

it

would be a good

rule to be adopted.
Forest's Rep. in the Exch.

'

129.
2

is

Simmonds

v.

Lord Kin-

naird,4 Ves. 740.

a

Cartw right

v.

Weymouth

said

and
Grant v. Jackson
Peake's N. Prius, p.

others,
t.

this doctrine.

Hately,

Ves. jun. 293.

*

what
2 Ch. Cases and I have
heard Lord Eldon approve
Ves. jun. 423; see also

Boyer,

203.

PREVENTION OF FRAUD.
Defendant puts

If the

in

Vacation, and no exception

first

so that

moment

that the

in

the

in

the

he

may

it

Term

d
,

an order for payment of the Costs of the

for

discovery

it is

the

not quite accurate to say*,

Answer comes

fendant must be paid

been

taken to

eight days of the succeeding

move

Answer

his

is

177

in,

De-

the

ex pence he

the

all

has

at.

Where
sion to

a Bill prays a Discovery and a

commis-

examine Witnesses, the practice is settled

Defendant is not entitled to move

to be, that the

for his Costs,

till

the return of the commission

and even then, not to give the Defendant

Costs,

if

his

he examines Witnesses in Chief, instead

of confining himself to a Cross examination

If after the

Defendant has answered, the Suit

becomes abated,
therefore, the

it

cannot be revived

Plaintiff

was

feme

Where,

when she

sole

filed

her Bill of Discovery, and afterwards mar-

ried,

whereby the Suit abated, the

Suit,

holden. could not be revived for Costs

termination, reluctantly followed

The Defendant cannot move

Bill

as

this,

for

cause ends with

where such
d

a Bill

the Ans\cer

33.

Chancellor.

31.

v.

so stated

lor,

Hindman against Tay2 Bro. C. C. 11.

Anonymous, 8 Yes. 70: see

See

also

Banbury

v.

I.

to dismiss

and

';

in

'

Alpha

v.

Dodson

Woodcock

,9 VeS,

the

one case

Payman,

v.

such a

for

to an
1

Dick.

Juda, 10 Yes.
v.

King, 1 Atk.

280. Mos. 185. pl f 95.

k
2 Bro. 10.

io.-}.

VOL.

by Lord Eldon h

was improperly brought

Semple, 5 Yes.
by counsel, and
seemingly, assented to by the
Stewart

8G.

a hard de-

want of prosecution
y

was

it

EQUITY JURISDICTION

178

the

hearing,

whether

was,

question

the

Bill

should be dismissed, or the cause struck out of the

Paper, and his

Honor took

because, such a Bill

is

never dismissed, the words

"

of a dismission being,

cause to

course,

the latter

The Court

seeing no

relieve '."

11.

Bills

The denomination

Quia Timet.
Quia Timet was

of Bills

borrowed, probably, from the Title of some ancient

Writs

at the

Common Law;

for as

observes, " there be six Writs in

be maintained quia

timet, before

distress, or impleading, as,

his

1.

Lord Coke

Law,

A Man

may have

Writ or mesne, before he be distrained

Warranlia

2.

before he be impleaded

cJiartce,

may

that

any molestation,

3.

Monstraverunt, before any distress or vexation

4.

An

Audita querela, before any execution sued.

5.

Curia claudenda, before any default of In-

closure; 6.

A Ne injusle vexes before any distress,

or molestation.

And

these,"

says Coke,

" be

called brevia anticipantia, Writs of Prevention."

When

a Person

is

apprehensive of being sub-

jected to a future inconvenience,

probable,

or

even possible, to happen, or be occasioned, by the

neglect, inadvertence, or culpability of another;

or where any property

is

bequeathed to one,

after

the death of another in existence, and which

former

is

desirous of having secured safely for

use, against

his-

the effects of any Accident, which

See on this subject, Hodgson against Dand, 3 Bro. C. C.

475.
1

the

m Co. Litt. and see

7 Bro
P. C. 125. Toml. Ed.

PUEVENTIOX OF FRAUD.

may happen

to

179

previous to the accruing of his

it

possession, in either of these Cases, a Bill of the

above description may he exhibited, which

one instance

in the

will quiet the party's apprehensions

of a future inconvenience, by removing the Causes

which may

lead

to

and

it;

in

the other,

will

secure, for the use of the party, the property,

compelling the person

of

it,

to guarantee the

Thus,
a Bill

same by

a proper security,

".

Case decided by Sir Thomas Clarke,

in a

was

the present possession

in

subsequent disposition, or wilful

against any

destruction

by

by

filed

Legatee

for the security

of a

Legacy which the Defendant, an Executor, was

to pay at the end of Ten Years after the Death of
the Testator

and the prayer of the

Bill was, that

the Defendant might admit assets and give security or

no

pay the

particular

Money

into the

Bank; and though

were assigned, such as

reasons

wasting Assets or Insolvency in the Defendant

a decree was

the

Money

made

Defendant should pay

that the

into the Bank, and that he should have

the Interest in the

of the

Ten Years

the Plaintiff p

mean

time, and that at the

end

the Principal should be paid to

So, in a Case, where a Legacy was

left to

one

to

the Plaintiff being only

be paid at twenty-four,

twelve years old, the Father

n

Analysis of the Practice of

the Court of Chancery, p. 4-J.
Hinde's Prac. 128.
Some such reason seems to
have been assigned in the ear-

filed a Bill to invest

lier cases;

see

Ch. Case*

121.
p

Ferrand against Prentice,

Ambl.

But more fully

by lord Thurlow, in
Green and Pis,ot, 1 Bro. 105.

stated

N 2

p. 273.

EQUITY JURISDICTION.

ISO

the Lesracv in the Funds, and so

though

it

Plaintiff

was

at the

was

not

twenty-four

was decreed,

it

same time declared, that the

to the

entitled

Daughter

to her Child,

was

filed to

and

Bill

secure the Fund, and the Court held

was

upon

Estate

r
.

The Doctrine seems

Legacy be payable

entitled

part of the Personal

secured for the Legacy

-e?*/ 5

the

in default,

no Child, to one Mills; a

if

to have

Bill,

to

left

twenty-one, and

at

that a party so circumstanced

such

till

In like manner, where .=2000 was

Testator's

Money

to

be the same, whether the

at a fixed, or a future,

day; as where a Legacy was

left to

Contin-

Female

Infant to be paid at twenty-one or Marriage with

Interest at 4 per cent., but if she

sink into the Residue

on a

died before to

Bill filed, the

Court

ordered the Legacy to be paid into the Bank, in

order to secure the same, and

than

was made,

of the Child; for

it

if it

if

should be

produced

Executor would not be obliged

deficiency
least

3
.

greater Interest

In this Case, also,

for the benefit

less Interest, the

make up
there was not
to

the
the

surmise of any danger of losing the Legacy,

from the circumstances of the Defendant

1
,

In another Case, where the Testator had given

the Plaintiff
q

Walker

^15,000,

and Cooke, 15
Lord

Feb. 1781. cited by

Thin-low, 1 Bro. 105.

to be paid at

twenty-one,

p. 273; see also Studholme

and Hodgson, 3 Peer Wins. p.

Cruze,

299. Pierce v. Taylor, lb. 108.

s
Green against Pigot, 1 Bro.

17th July 1749, cited by Lord

Thurlow, in Green and Pigot,
1 Bro. 105. and mentioned in

105; but see Palmer v. Mason,

1 Atk. 505.
See S. C. 2 vol. Dick. Rep,

"Johnson

v.

De

la

errand against Prentice,

Am b.

580.

PREVENTION OF THAUD.
or Marriage, with Interest in the

she died before, to sink

if

131

mean time; hut

the Master of the Rolls

thought the Legacy must be appropriated, and

v

lie

must be observed, however, that in cases of this description the Court

will not interfere to secure the Fund, upon the
application of a Person who does not shew any
decided accordingly

It

Title".

Where one by

will

gave an Annuity out of his

personal Estate, and a Bill of this kind was

filed,

the Master of the Rolls observed, " since the

Executor has by

his

answer submitted

to

it

the

Court, whether he should give any Security, and

appears to have expressed himself in words, threat-

ening to defeat the Annuity,

let

the Master see a

sufficient part of the personal Estate set apart,

assigned

a Trustee,

to

Annuity \

And where

secure the

trust to

in

and

there has been no

such

submission by the answer, or any threats, vet the

Court has

manner interfered b
where Bills of this description have

in like

Other cases

been held proper, arc also to be found

in

the

Reports.

As, where A. being seized of Lands in Fee

granted a Rent-charge issuing thereout, and

af-

terwards devised the Lands to B. for Life, with

remainder to C. in
that such a Bill

fee,

was proper

Carey against Askew,

Bro. 58.
w

Browne

against
Dudtf. C. 321.
1
Batten v. Eurnley, 2 P.
Win-, p, 163.
bridge, 2 Bro.

and died:

to

it

compel B.

See Slanning

Wms.

r
3;J. ),(3.

2 Vern. 249.
121.

was

held,

to

3 P.
Noble,
Ch. Cus.

t. Style,

Rous
S. C. 1

pay

v.

EQUITY JURISDICTION.

182

the arrears, for fear

all

versioner; although

it

should fall on C. the Rewas urged, that this was a

remote Possibility
So, where A. was entitled to the use of Goods
.

and a Library
Plaintiff's

for Life,

who

Wife,

with remainder to the

as her

died, the Plaintiff,

Administrator, brought a Bill of this deseription to

have the Goods. &c. secured to him

after the

of A., and a decree was made accordingly

The

validity

of such

a bequest,

death

d
.

as that last

mentioned, was atone time questioned; but such

Somen

bequests were decided by Lord

valid

servation of
a Tenant

Lord

for

life

be

however, according to the ob-

It seems,

to

that the cases as

Tliurlow,

to

giving security for the Goods,

have been overruled, and the Court now demands

which, he observes,

only an Inventory,

equal Justice, and that there ought

Bill

being out of his Time,

it

for if

it

were

filed to

deliver

and Indentures, he

was ordered, that the

Defendant should either bring

a Year, or deliver up the

be danger,

Quia Timet was

up an Apprentice's Bond

more

in order to require a Security

Where

to

is

his action within

Bond and Indentures;

at the Master's

choice to stay as

long as he pleased, he would perhaps stay,

till

the

Apprentice's Witnesses were dead*.

c

Hayes

v.

Hayes,

Ch.

Cas. 22'3. S. C. 1 vol. Eq. Cas.

Abr. p. 78. pi. 4.

Wms.

p. 1.

and

to that effect

are the subsequent cases, 1 P,

Wms.

Bracken andBentley, 1 Ch.

Rep. 110. S. C. 1 Eq. Cas.

p. 500. and 051.

Foley against Burnet, 1 Bro.
279. Bill v. Kvnaston, 2 Atk.

Abr. 78.

82.

pi. 1.

Hyde and

Parrat,

IP.

Abr.

Ch. Cas. 70.

pi. 2.

S.

C.

Eq.

PREVENTION OF FRAUD.
So, also, the

183

Lord Keeper North thought,

that

B. and has a Counter Bond from

B., and the money is become payable on the
original Bond, Equity will compel B. to pay the
if A. is

bound

for

Debt, although A.
the

since

debt,

it.

not troubled or molested for

is

unreasonable that a

is

Man

should always have such aeloudhun^ over him

Bill of this nature

lies

h
.

to secure the property

of a deceased Debtor from being misapplied by

his

Executor'.

But such

Bill

must be

filed

against the Executor, and not against the Deb'ors,

fyc.

tor

of the deceased,

where the Execu-

unless,

and Debtors collude*.

If the

Executor

is insolvent,

Receiver will be appointed,

on a

Bill

who may

filed,

Money

tions; and if Persons are about to pay

bring acto

an insolvent Executor, the Court will restrain

him from receiving

Pending

it

Litigation the

danger of being

lost or injured,

a Court of Equity will

if

Property

and

is

often in

such cases,

in

interpose to preserve

it,

the Powers of the Court in which the Litigation

depending are insufficient

is

Thus, during a Suit

in

that purpose.

for

an Ecclesiastical Court

for administration of the effects of a

a Court of Equity will

Person dead,

entertain a

Bill for the

mere preservation of the Property of the deceased,

till

the

Litigation

is

Ranelaugh v. Hayes, 1
Vera. 190.
2 Atk. 212. 1 vol. of Fonbl.
Equity, p. 42. in uote.
Elmslie v. M acaulev, 3 Bro.
024.
1

fc

determined 10
'

Utterson

But the
against

Mnir,

4 Bro. t. C. 277.
m iMitford's Pleadings,
122,
123. King and King, (J Vttf.
172.

EQUITY JURISDICTION.

181

by appointing a Receiver,
upon the mere ground, that two wills are in controversy in the spiritual Court, and no suggesCourt

will not interfere

tion, that the

Property

in

is

not be secured by an

and can-

danger,

administration pendente

Lite*.

for the delivery up of Deeds, or for

12. Bills

curing them, or

up of

delivering

the

se~

specific

Chattels.

for the delivery up of Deeds, or for the

securing of them, are classable under this head.
Bills

The

Court, however, seldom interferes in cases

of this kind, and

when

it

upon Terms
Lord Thurlow seems

does, the relief is always

p.

that, as a general rule,

to

it

have been

of opinion

could not be maintained,

wherever one Party hath an Instrument

upon which he cannot maintain an action at Law,
he will be decreed in Equity to give it up q nor
that

would

he,

where a Partnership had been dissolved,

and a note afterwards given

Partnership,

demurrer,

MS.

name

by the Defendant, order

n
Richards v. Chave, 12 Ves.
Duplessis,
4G2. Knight v.
1 Ves. 324. See on this subject

v.

in the

argued on
13th June,

1812.

of the

the Plain-

Bromley v. Holland, 5 Ves.

618.
Q

See

Hilton

v.

Barrow,

1 Ves. jun. 284. and Ryan

against Macraartb, 3 Bro. C. C.

15.

PREVENTION OF FRAUD.
tiff's

name

but

to be erased

185

tins decision

not satisfactory to the Bar, at the time,

observable
of

for

not on

note did

that the

was
it

the

is

face

appear to be void, but only from collateral

it

circumstances
before

8
:

and

in

Lord Thurlow

which on the

Minshaw and Jordan,

in the case alluded to

face of

it

appeared

to

',

cited
a note

be good, was

ordered to be delivered up.

There

is

no instance,

seems, of a decree for

it

up of a Bond, which on the face of

appears to be void v and which by pleading

delivering
it

Law, may be shewn

at

be

to

Lord

void*.

JZldon, however, (differing, as he confesses, from

was of opinion,

others,) always

that a

Court of

Equity has the Jurisdiction, and duty, to order a

void

Deed

to be delivered up,

those whose Property

remains

it

it

in other

may

hands

2
;

and placed with

be affected by

it,

if

but ^voluntary Deed,

seems, will not be ordered to be delivered up,

unless fraud appears*.

Where

the Legislature declares certain

and Instruments
does, there

'

inherent in the Court of Chancery

is

3 Bro. C. C.
Vid. arg.

15.

in

Jackman

v.

Mitchell, 13 Ves. 565.

'3 Bro.CC.
v

T
JaC
k nan
r
tiv
J J Ves. o5.
,

'

Franco

19.
...

v*

* The
Mayor, &c. of Coltester v. Lowton, 1 Ves. and
Bta - 244 Hayward v. Dimsdale 17 Ye, 112.
-

Mitchell,

Colman v. Sarrel, 1 Ves.

50. S. C. 3 Bro. 12. Oxley v.
j Atk> C24
und 8ee Doe
and Routled^e, Cowp. 705.

LeCj

5 Ves.
368. But Befi what Lord Eldon
observed of that case in Biomv.

Deeds

be void, as the Annuity Act*

to

Bolton,

ley v. Holland, 7 Ves. 19.

t>

*"

17 Geo. 3

c.

26

EQUITY JURISDICTION.

186

them

a Jurisdiction to order

but

this is

Deed

be delivered up 1

void on grounds of

is

Public Policy, as where a Bond

is

given in con-

sideration of future cohabitation'

dered

always on terms

And so, where

to

will be or-

it

be delivered up, though the Plaintiff

to

be Particeps Crintinis, as he
a Marriage Brokage

Bond was given

Bond

also, in

is

And

f
.

to secure

the case of

where a

so,

one Creditor the

to

deficiency of a composition, not communicated to

the other Creditors

and where a Bond was given

Law h

procure an office contrary to

to

decreed to be delivered up

who

will

Bills

lie

to

though

was Particeps Criminis

it

was

to a person,

'.

have Promissory Notes, or

Policies of Insurance, delivered up, in cases where

a vexatious use

Court

will not order a

revocable, to

is

for the

may be made

of

them

k
;

but the

Power of Attorney, which

be delivered up

So, contracts

'.

purchase of Estates have been ordered to

be delivered up

after the

death of a Purchaser, and

a Suit instituted for an account of Assets.

e

Underhill

lOVes. 218.

v.
I

Horwood,
Byne

5 Ves. 004, was the

This was followed
case.

v. Vivian,
first

by Byne
Bromley

Potter, lb. C09.

Holland, lb. G10.
reversed on appeal, 7 Ves. 3.
v.

v.

Hoffman and Cooke, 5

what is said in
Low v. Harthard, 8 Ves. 135.
u
Seethe decree in Bromley
and Holland, which seems to
have been very carefully drawn
up, 7 Vs,29.
;

and

see

Gray
Lord

v.

Mathias, 5 Ves. 28.

St.

John

v.

Lady

St.

Ves. 535,6.and Shirley

and Ferrers there mentioned.
8
Mitchell,
v.
Jack man
and see Easta13 Ves. 581
brook v. Scott, 3 Ves. 450.

John, 1

Ves.

623. Dnff v. Atkinson, 8 Ves.

077; and see Philips and Crawford, 9 Ves. 214. S. C. 13 Ves.

475

believe

'

C.

&

Law
MS.

6 Edw. 6.
v. Law, For. 140. S.

Bromley v. Holland, 7 Ves.

21 ; and see Jervis and White,
7 Ves. 414. Kemp v. Prior,
lb. 249.

7 Ves. 28.
m Mackreth
'

Wms.

v.

C8. in n. 1.

Marlar,

2 P.

>

PREVENTION OF FRAUD.

A Bill lies

for the delivery

detained; for in

1ST

up of Deeds unjustly

an action of Trover damages only

can be obtained for the detention of the Deed, but

not the deeds themselves
If a

Conveyance

".

made

is

of an Estate with a

power of Revocation, and it is afterwards revoked,

a Bill lies to have the Conveyance delivered up".
So,
Tail,

one

if

settles

Land upon

his

Daughter

and takes a Bond from her not

waste",

or not to suffer a

Recovery

',

to

in

commit

the

Bond

will be ordered to be delivered up.

Where,

to a Bill

to

have Deeds delivered up,

the Defendant stated himself to be a Trustee for

Mortgagees, bid didnotnamc them, he was decreed

to deliver

Such

up the Deeds and pay Costs q

Bill will not lie to have a presentation
.

upon the next avoidance, delivered

up, on account of gross misconduct in obtaining

to a living,

it

r
.

In the case, of the Bankruptcy of a Person possessing Deeds, they

be ordered to be

will not

up on Petition, but a bill must be filed'.

In some cases, it seems, a Will may be applied

delivered

to be

for

delivered

ousfht not to

m Jackson

v.

vex the

Butler,

up,

Plaintiff's

2Atk.

Gilb. Eq. p. 1.
Jervis v. Bruton,

2 Vein.

251.
p

Title;

but

man, 2 Vern.233. S.C.

if it

Prec.

Ch. 28.

306.
"

an Instrument that

as

Tutton v.
Mollineux,
Moore, 809. approved 2 Vein.
251. but 6ee Freeman v. Eree-

q Earl
of Scarborough
Parker, 1 Ves. jun. 267.
McNamara v. r

v.

5 Ves. 824.
s

Ex

100.

parte Poole, 1 Ves. jun.

EQUITY JURISDICTION.

3SS

contains in

it,

any thing that has

not to be delivered up

many

validity,

it

ought

where an agreement for

There are
the sale of Lands has been ordered to be delivered
up y and in which the Court has resolved that
cases

though

it

will not specifically perform an agree-

ment, yet, where the conscience of the Party is

not affected, it will not stand neuter, but order the
contract to be delivered up, to prevent proceed-

Law

ings at

z
.

Prima facie, a Tenant for Life is entitled to

v
(unless perhaps as
the Custody of Title Deeds
against a Remainder-man whose Interest is exw
pectant on the Tenancy for Life ;) but if the
,

Deeds have got

into other hands,

and the Tenant

and does not interest him-

for

Life

self

about them, a Remainder -man>

is

satisfied,

apply to have them delivered up

Where Persons have had

it

seems,

may

x
.

successive interests, in

Real or Personal Property, Deeds have, on a

for that purpose,

Court
a

been ordered

and there are

Remainder-man

a great

Bill

to be deposited in

many

cases

where

in Tail, or a Reversioner in Fee*

has been held entitled to have the Title Deeds

secured for

his

benefit,

Life was standing out

though an Estate

for

But, in general, the Title

1
Pemberton v. Pemberton,
13 Ves. 298.
v
Ford v. Peering, 1 Ves.

*
Mortlocke v. Buller, 10
Ves. 308. see also 16 Ves, 83.
'See a case of that kind,

Hodgeson

jun. 76.
* Ivie v.
*

Atk. 430.

Ivie, 1

1 Ves. jun. 78.

See

Willan

16 Ves. 83.

v.

Willan,

v.

Bussey, 2 Atk.

89.
b
Smith v. Cooke, 3 Atk.
382. Reeves and Reeves,2 Mod,
132.

PREVENTION OF

FilAUD,

Deeds remain with the Tenant

189

for Life

and

it

has been determined that such Relief will not be

given against a Father, Tenant for Life, in favor

of his Son, Tenant in Tail

'\

which the Court interferes, are

where the Remainder-man has been a stranger to
the Tenant for Life, and not where he is Tenant

The

cases in

under a Settlement made by a Grand-

for Life

Father, with remainder to the

Son

remainder to the Grand-father; but

i(

stroying the Deeds,

his Estate, the

AH

in

such casr,

Evidence that the Father was de-

there were

the deeds

only,

in Tail

and enlarge

in order to better

Court would take the custody of

e
.

Persons concerned

ought, in these cases, to be

in

the Title Deeds,

made

Parties

f
.

A Jointress will not be compelled to bring her

Jointure Deed into Court or before a Master,
the Party requiring

unless,

Jointure
in a

it,

will confirm her

but the Court will direct her to deliver

Schedule of the Deeds, and the Court,

what

discretion, will order

produced

B.

If a Bill

be

shall or

at its

shall not

filed against

be

her to have

deeds delivered up, without an offer to confirm

her Jointure, she

Bowles

and

I.ei'r.

plead the Settlement in bar

Lord

it

v.

Steward,

233

and see

1
1

Srh.
Ye*.

Lempster

against
Lord Pomfret, Anibl. 104.
e

Pyncent v. Pyncent, 3 Atk.

571.
r

Ib.

to the delivering

;un. 70. 8 Ves. 32#.

d

up of specific
has been holden, that such a Bill will

With respect
Chattels,

may

Petre v. Petre, 3 Atk. 511.

Pyncent v. Pyncent, :3 Atk
ami see lord v. Peering,
071
1 Ves. jui.. 7tJ. Senhouse v.
I-arl, 2 Yes. 450.
Chamberlaia v. Knapp,
"
;

lAtk.

o>.

EQUITY JURISDICTION.

190

some

jie, in

cases, for the delivery of a specific

which the

to

chattel,

where the object of the suit

in damages'

Piece

1"
;

is

compensation

and of an old

f,

piece of wrought plate

of

silver Altar

an extraordinary

\ and cases of that de-

p.

scription

In Trover, the value of the deeds

Judgment

in Detinue, the
:

liable to a

a silver Tobacco Box, belonging to a club";

a Cherrystone finely engraved

value

not

as in the case

Horn

the Pusey

and

PlaintirYis entitled',

and

it is

the

is for

is

recoverable;

the Deeds, or the

Imperfection of the

Law

in

such actions, that seems to be the ground of the

Jurisdiction

in

Chancery

of the thing itself q

13.

for the specijic delivery

Bills to enforce Contribution.

Actions between Partners, to enforce a Contribution,

that

have been frequent of late, but formerly

was always effected by a

a Bill,

brought

One

it

Bill in

seems, for that purpose,

Equity

may

and

still

be

r
.

surety

may compel

another in Equity,

(and this though he be a supplemental surety %) to

contribute towards

SeeNutbrowne

''

v.

payment of
Thorn-

ton, 10 Ves. 163. S. C. M. S.

k
See Fells v. Read, 3 Ves.
71.
1

Pusey

v.

Pusey, 1 Vern.

273.

m See Duke of Somerset v.

Cookson, 3 P. Wms. 389.
Fells v. Read, 3 Ves. 71.

a debt for

which

"Pearnev. Listle, Ambl. 77.

See Lloyd v. Loaring,
6 Ves. 773. and Lowther v.
Lowther, 13 Ves. 95.
p

Vid. Wallwynv. Lee, 9 Ves.

33.'
r
Wright v. Hunter, 5 Ves.
792.
* Cook's Case, 2 Freem. 97.

PREVENTION OF FRAUD.
they were jointly bound
cipal

to discharge

is

sureties

v
,

for

though the prin-

the obligations of

all

all

the

yet they stand with regard to each other

Relation which gives

in a

191

others, that

if

rise to this right,

one pays more than

among

his proportion,

there shall be a contribution for a proportion of

the excess beyond the

events he

pay

to

is

proportion, which

w
;

but,

in

all

where any act has

been done by the obligee, that may injure the

surety, the

Court

in his favor",

very glad to lay hold of

is

and will

decree a perpetual

in

such case,

Injunction,

if

to

called upon,
restrain the

holder of the security from suing upon

therefore, the holder

If,

time

7
,

accepts

it y .

of the Security gives

composition, or discharges

it

the

Estate of the Principal, without previous notice

to the Sureties,

and a reserve of the remedies

against them, they

will stand discharged"; but

the discharge of one surety, does not discharge a

Co-sure ty

b
.

'
Toth. 14. 1 Cli. Rep. 34,
1 Eq. C. Abr. 114. ease 9 ;
and see Lloyd v. Mackworth,
Bunb. 138. Collins v. Griffith,

P. Wins. 314.
v

See on this head Tynt

Tynt, 2 P. Wms. 541.

v.

"

Ex

parte Gifford,

Ves.

808.
" Law v. East India
pany, 4 Ves. 833.
'

Nisbit

against

ComSmith,

2Bro.C. C. 583.
'

Skip

v.

Hue)-, 3 Atk. 91.

Ves.
809. note a. Rees v.
Berrington, 2 Ves. jun. 540.
Nisbit against Smith, 2 Bro.
C. C. 579. and see (> Ves. 809.
a
Ex parte Smith, 3 Bro. C.
C. 1. Ex parte Giffoid,
Ves.
v.
Berrington,
807. Rees
2 Ves. jun. 543,4. Wright v.
Simpson, 6 Ves. 734. Law v.
East India Company, 4 Ves.
S24. Boulbee v. Stubbs,18 Ves.
20.
b

805.

Ex

parte Gifford,

Ves.

feQUITY JURISDICTION

192
If

B.

A.

bound

is

maybe

compelled,

though A.

is

not sued

and

in

and has a Counterbond,

Equity, to pay the debt,

c
.

has been decreed

Contribution
Joint

for B.

between the

Estates of a Bankrupt

separate

former having paid beyond

the

proportion, a debt

its

Crown, under an Extent, the Bankrupts

to the

being jointly and separately bound

Contribution has also

Assignees

in

been enforced

among

Bankruptcy, to reimburse a payment

by one, under an

order, for a. Loss, occasioned

by

Act \

their joint

Where

damages are recovered against

entire

several Defendants guilty of a Tort, a

Court of

Justice will not interfere to enforce Contribution,

among

the

wrong doers

of a Civil obligation
If a Ship

but the non-performance

not considered as a Tort

f
.

be pledged abroad by the Master for

Expences, as
liable

is

it

may

and compellable

be, the

part-owners are

to contribute

e.

So, where goods are thrown overboard for the

safety of a

and

Ship, a right to Contribution arises

Contribution

in cases of dispute, the

recovered, either

Action

On

at

Law

the

by a Suit

Ves. 114.

be

Equity, or an

h
.

same

principle,

<Sie dict.Ranelaugh v. Hays,

Vern. 190.
d
Rogers v. Mackenzie, 4 Ves.
752.
c
Lin gar d v. Bromley, 18
1

in

may

if

a Rent-charge

is

lb. p. 110, 117.

Samsun

1 Ves.

v.

Bragington,

443.

h
Abbott on Shipping, 373 ;
and see Hallett v. Bousfield,
18 Ves. 187. Shepherd y
Wright, Sho. Pari. Cas. 18.

TREVi.NTION OF FRAUD.
granted by A. out of

wards

Lands, and he

Lands by Parcels

the

sells

his

all

sons, the Grantee of the

l'/3

after-

to divers per-

Rent may be

restrained

from levying the whole Rent upon one of the

Purchasers'.
It is a Rule, that the

down

Tenant for Life

by the Rents and

Interest

Profits

shall
;

keep

but that

Money due upon any

Portions, or the Principal

other Incumbrance shall be borne by the whole

Estate k

If therefore there be a Tenant for Life in pos-

Estate subject

an

session of

to

Mortgage,

and he omits to keep down the Interest due on

the Mortgage, out of the Rents and Profits, the

may

Reversioner

a Bill to

file

amenable, and compel the Tenant

answer

for

what has accrued due

is

And though

the

Owner

to

for

Life

to

Tenant by
u

of a charge on an Estate,

run in arrear several years,

sumed

'.

considered as Tenant for Life m

the Curtesy,

lets it

the Rents

make

it

will not

be pre-

be released, or intended to prejudicr

the remainder-man

n
.

by Act of Parliament, there be a Tenancy in

Tail unbarrable, the Tenant in Tail will be comIf,

pelled to keep

fraud not
Cary
Abr. 33.
*

to

3. S.

down
keep

it

the Interest, because

down

C. 1 Eq. Cas.

Saville v. Saville,

2 Atk.

Lord Penhryn v. Hughes,

5 Ves. 100; and see Jennings
1

Looks, 2 P. Wins. 278.

VOL.

but otherwise, a

Casbome v.

Scarfe, 1 Atk.

COG.

463. S. C- Select Cas. 32.

v.

it is

I.

n
Aston v. Aston, 1 Ves.
267 Countess of Shrewsbury v.
Earl of Shrewsbury, 3 Br#.
C. C. 126.

EQUITY JURISDICTION.

104

Tenant

in Tail

is

not obliged

keep down In

to

terest

on a Mortgage

but

the Tenant in Tail pays the Interest, the

if

unless he be an Infant

personal Representatives of that Tenant in Tail

cannot come upon the owner of the

for a satisfaction

The Tenant

Reversion

''.

for Life

must apply the Rents and

Profits during the Estate for Life, in

tion of

any Interest accrued prior

quent to the

the reduc-

as well as subse-

commencement of that Estate

upon the Tenant

old rule calling

a gross sum,

not

is

now

in force

The

s
.

for Life to
1
.

pay

Mort-

If a

gagee permits a Tenant for Life to run in arrear

and purchases the Estate

for the Interest,

for

Life,

and takes possession under that purchase,

he

bound

is

to apply the surplus rents

beyond the current

arrear

and

profits

Interest, in discharge of the

v
.

The

two funds, one productive and

taker of

the other unproductive,

Interest of the charges

must keep down the

upon them, and pay

off

the accrued Interest out of the Rents and Profits

of the Reversion, before he can take any benefit

of the Devise, and cannot throw thechargeon the

Reversion w
p Chaplin
\Vm*. 235.

See

,;

Though

v.

the Tenant for Life omits

Chaplin, 3 P.

Ameshury

Browne,

v,

Ves, 4-80, Sarjeson v. Cruise,

paentioned 1 Ves. 478.
1

Ves, 481. Redington

Rediugton,

Ball

and

v.

JJeatty,

5 Ves. 100,7. Tracey against

Marquis of Hereford, 2 Bro. C,
C. 128.

Lord Pcnhryn
5 Ves. 107.
*

v,

Hughes,

lb. p. 90.

Tracey against Vise. Here*

'

ford, 2 Bro, C. C. 128,

J43.
I

Lord Penhryn

v.

Hughes,

*RLVENTION OF FRAUD.

19")

keep down the Interest, yet as between the

to

Mortgagee and the Estate, the Mortgagee has

right to be paid out of the Estate, into whatsoever

hands

A
will

it

may come

Tenant

*.

paying off an Incumbrance

for Life,

not be presumed to mean to exonerate the

Estate y

nor

necessary for him, in order to

is it

keep alive a charge against the Estate,

Assignment from the Creditors'.

the presumption

is,

that

any

to take

But although

Tenant

by

for Life

paying off an Incumbrance upon the Estate, did

not mean thereby to exonerate the Estate, such

presumption may be rebutted and disproved by

Evidence 1

If a Lease for years from a College be limited

by Will

to persons in succession, the

man may

oblige

the

Remainder-

taker to renew, and

first

contribute to the Fine paid on such renewal

If there be a

Lease

for

b
.

Lives from a Church or

a College, and the Life of the Devisee, or Grantee

for Life, is

one of the Lives upon which the Lease

held, and

is

it is

a devise of the legal Estate, the

Tenant

for Life will not

bute to

a renewal,

Life,

be compelled to contri-

because his Interest

and that Life

is

the

in

is

only for

Lease, and the fine

and charges of renewal must be paid by the

mainder-man.

This

is

so in the case of a devise

"Lord Penluynv. Hughes,

5 Vies, J 06.
v

Redington

i Ball

v.

'lb. 142.

Redington,

andJBeatty, 140.

Ile-

lb.

See Lock and

Vern.<566,

o 2

Lock,

LQU1TY JURISDICTION.

196

of a legal Estate, and

same

it

would be the
But where

to a Cestui que trust.

in regard

the Lives are

seems

it

strangers to the

all

there the Tenant for Life

who have

ther with those

Tenant

for Life,

must contribute

toge-

a chance in the benefit

of the succession provided

for

by the Will

c
.

Sometimes the nature of the Estate bequeathed,

or the Will of the Testator, compels a renewal

but where there

is

it

no such custom

is

in the discretion of the

renew or not

renewed, there the Court has

given him being from
ing, the

use,

Tenant

would

b,e

its

for Life

for Life to

Tenant has

said, that the Estate

nature capable of renew-

renewing

in

for his

own

taking an unconscientious benefit of

The Court

the Estate.

or direction,

Tenant

But where such

therefore thought of an

much

apportionment, and that so

as

the Tenant

for Life

took for himself he should pay for; so

much

he took

as

of another,

for the benefit

he

by that other
The old, absurd, Rule of throwing one third of
the fine for Renewal, upon the Tenant for Life,
does not now prevail but the Rule now seems

should be paid

for

<l

to be, that
in

the Tenant for Life contributes only

proportion

to

always depends

the

benefit

much upon

Verney v. Verney, 1 Ves.

429, 430, Wilson against Den-

Ambl. 88.
As in Stone against Theed,
2Bro.C. C. 248.
nison,
a

Nightingale

v.

Bro. C. C. 443;
Bro. C. C. 248.
c

Lawson,

and

see

Stone against Theed, 2 Bro.

C. C. 248.

in

he

his age

takes,

which

e
.

''Supposed to be established
Verney v. Verney, 1 Ves.

428.

Ambl.

88.

Nightingale v. Lawson, 1
Bro. C. C. 440. White v.
White, 4 Ves. 24. on Rehearing, 5 Ves. 554. and on Appeal, 9 Ves. 654.
'

PRHVEN'n'oN OF FRAUD.

14. Bills for

Dower, or a Partition.

There have been doubts

on which Equity

Dower; but

1!>?

at

to the Principle

as

interfered in cases

first

of"

so early as in the Reign of Eliza-

beth, proceedings in Equity for the

Recovery of

Dower, appear to have been permitted

Dower is a mere legal demand, and it

Widow

culty under which a

f
.

is

the

diffi-

Law, from
the Lands out of which

not being able to ascertain

labours at

dowable g or the Persons against whom to

bring her Writ h and from the embarrassments ocshe

is

casioned by outstanding Terms, that entitles her to

equitable

The Law

relief.

gives her

of the Estates of her Husband, and

profits

from his death

and

and there should appear

if she

Dower

the mesne

proceeds at Law,

any Mortgage, or

to be

terms of years in her way, she would

Costs.

hands,

Equity interposes

Dower

are

is
1

and

affected,

seldom brought

incurred

in

Wild v. Wells, I Dick. 3.

Dormer v. Fortescue, 3
Manaton

Freem. 20.
See on
1

ford's

is

Dower
his

no limitation

to

and though

at

',

v.

Squire,

Widow

loses

Life-time m , yet

in

Curtis v. Curtis, 2 Bro. C. C.

031. etc.
k

Atk. 130.
h

seems,

the Death of the Heir, the

arrears

it

In Equity, as at Law., there

Law by

hence.,

and, so usefully, that Writs of

a claim of the arrears of

'

lose her

The Heir has all the Title Deeds in his

and knows what the Estates are
his con-

science therefore

all

out

Munday

v.

Munday,

V. Thorold,

Ves. Jun. 128.

9 Ves. 222.

this

subject,

Pleadings,

110,

Mordaunt

Mit111.

Lev. 375.

EQUITY JURISDICTION.

19S

Equity,

if

she has

of the Heir, she

her Bill before the death

filed

entitled to the

is

Mesne

Profits",

from the time her Title accrued", provided she

has made an Entry?; and so,
are her Representatives'

in

ease of her death,

Proceedings to obtain a Partition of Estates

are also of frequent occurrence.

The

Jurisdiction in cases of Partition appears

to have arisen in

VIII.)

consequence of the Act,

one Tenant

which makes

(5 9

Hen.

common

in

accountable to the other, so that since the Statute,

they are become as

the other

The

were Trustees the one to

earliest

Partition

it

is

instance,

however, of a

thought to be

in the

Bill

for*

time of Eliza-

Reign of James II. they were

beth'.

In the

become

frequent"; and in that of his Successor,

the Chancellor observed, " he did no

more ques-

tion the Jurisdiction of the Chancellor in these

Man

eases than he did, whether a gift to a

and

his

Heirs were a Fee-simple"*."

Proceeding's to obtain

may be

referred to

Equity

issues

Partition of Estates

this head, since

Commission of

Court of

Partition, "on

account of the extreme difficulty attending the

process of Partition at Law, where the Plaintiff

must prove
11

Curtis
C. C. 020.

"Dormer
Atk.

Curtis,

v.

he declares

his Title as

2 Bro.

Sic.

diet.

and
arg.

also the
1

Vern.

421.
v.

Fortescue,

I'-iO.

s
'

Co. Litt. 1G0*.

SeeTothill's Transactions

Il.irg.

p Tilly v.
Bridge, 2 Vern.
^
519. S. C. Prec.in Ch. 252.
" Wakefield v. Child, mentioned, 1 font*. Eq. p. 158.

of Chancery, tit. Partition.

T
l Vern. 421. 2 Ch. Ca.
189.
w
Manaton v. Squire, 2

in n.

Freem. 2G.

PREVENTION OF F11AUD.

199

Judgment

Titles of the Defendants, and

is

given

for Partition according to the respective Titl<

That

proved.

much

attended with so

is

difficulty,

that by analogy to the Jurisdiction of a

Equity,

the case of Dower, a Partition

in

obtained by Bill

And

x
.

luation of the proportions

the Interestsofall parties

It has

been

said,

than the Writ

much

tor

it

a Parti-

and that there

has been

Plaintiff has a legal Title,

is

no

but where there

in it,

not proof of Title in the Plaintiff

the other hand

the va-

better attended to>.

Decree

that a

instance of not succeeding

is

better considered, and

is

a matter of right,

tion is

may be

a commission so obtained,

much more convenient

is

Court of

";

but on

observed, that as a

it is

considered as dis-

cretionary in the Court, whether they will grant

a Partition or not

and where there

are suspicious

circumstances in the Plaintiff's Title, the Court

will

the Party

leave

must,

it

appears, state

dants

Judgment for

to obtain a

Partition, the

who

not be divided.

Court

are, together

him, entitled to the whole subject

a Partition,

own

his

to enable the Plaintiff

direct inquiries to ascertain

On

Plaintiff

the Titles of the Defen-

and with the view

The

upon the Record

\ and

Title to a Moiety

Law a

to

will

with

every part of the Estate need

If there be three houses,

it

would

not be right to divide every house, for that would

"

Agar

v.

Fairfax,

17 Ves.

Jun. 552.
5

Calmady

v.

Calmady, 2

Ves. Jun. 570. Mitford's Pleadings, 110.

1
Parker against
Gerard,
Ambl. 230.
*
Cartwright v. Pulteney,
2 Atk. 380 ; and see Scott and

VOL.

I.

Fawcett, 1 Dick. 299. and

Baring v. Nash, 1 Ves. and
Bea. 556, 7.
b
Cartwright v. Pulteney,
2Atk. 380.
'

Agar

v.

Fairfax,

552. Calmadj
v.
2 Ves. Jan. 570,

O 4

1? Ves.

Calmady,

EQUITY JURISDICTION.

200

be to spoil them

but some recompence

made, either by a

Sum

to be

is

of Mori ^y, or Rent for

owelty of Partition to those that have the houses

of least value
If,

11

same, thourrh

a decree for the Partition of the

be

may

however, there be but one house, there

highly inconvenient

and where exceptions were

e
;

taken to the Report of Commissioners for the

House among

Partition of a

Jointenants, one

party complaining that she could not get to her

division, except

up

which

stairs,

were

stairs

lotted to another Person, the Chancellor

not interfere
tion of a

f
;

and where the

Cold Bath,

it

is

different

was

was decreed

it

there be but one Mill or

but

Bill

Advowson

would

for a Parti-

So

?.

it is

may come

in every

in

where there are other Lands

me and

be entitled

where there

case,

if

to be divided

which may make up the share '.

It is no objection to a Partition, that other
sons

al-

with remainders to persons

is

otherwise,

Estate

a settled

who may come

there never could be a Partition

per-

in

esse,

11

An Infant Joint- ten ant may file a Bill for a Partition, or such a Bill may be filed against him
1

and

it

will be decreed

be respited
Partition
d

P.

till

may

Clarendon
\\

ms.

v.

the Infant

Hornbv,

44(5.

Turner v. Morgan 11 Ves.

143. and see 1 P. Wins. 447.

Anou. MS.
Warner against

Baynes,
alluded to in
Barker against Gerard, Ambl.
236.
h
As to Partitions of an Advewson see Budicoute v. Steers,
;

Ambl. 589.

.*'.

<

of age m

is

Bill for

be sustained on behalf of a Joint-

'

but the Conveyance will

Matthews v. Bishop
and Wells, 2 Dick.

1 Dick. 09.

of Bath
052.

Turner v. Morgan, 11 Ves.

143. and see 1 P. Wms. 447.
k
Wills v. Slade,
Ves. 498.
Tuckheld against ''uller,
Ambl. 197. S. C. 1 Dick. 240.
'

'

"'

Lord

^irook v. Lord Hert-

ford, 2 P. Wins. 518.

197. S. C. 1 Dick. 240.

Ambl.

PREVENTION OF FRAUD.

201

tenant of a Lease for years, nor in such case, is'the

m
Reversioner a necessary Party . And a Bill for
a Partition of Tithes will lie"; but the Court has

no Jurisdiction to grant a commission of Partition,

between Tenants

Under

in

common

ofa Copyhold

commission of Partition

two

missioners, and

to four

Com-

made, one,

different returns

by two of the Commissioners, and another, by the

remaining two, the Court cannot act; but will
grant another commission directed to Jive

In cases of this kind,

missioners

mode is
With

move

said

to

yet

was

entitled to

five

only

would have rather given

than beat the expence ofa Partition.

parties'!

now

seems not

hundred

three or four

the Defendant

was decreed, and

of both

it is

where the

determined, that

and the Defendant to four or

his part
it

quash the returns

have been

to

andthough
up

to

the proper

q.

respect to Costs in cases of Partition

Plaintiff

Acres,

Com-

to be at the equal

unreasonable doctrine

This

adhered to

expence

the Rule now, seems

to be that, in cases of Partition,

no costs are given

Commission and that the costs of issuing, executing, and confirming the Commission
are borne by the Parties, in proportion to the
until the

value of their respective Interests, and no costs

allowed of the subsequent Proceedings

"Baring v. Nash,

1 Ves.

and

Baxter

495.
Scott
299.
p

see Corbett

v.

Davenant, 2Bro. C. C. 252.

Bea. 551.
n

S.C.MS, and

v.

Knollvs, 1 Ves.

q
r

v.

Watson

Fawcett, 1 Dick.
v.

Duke

of Nor11 Ves. 153.

Parker

against

Gerard.

Ambl. 237.
Agar v. Fairfax, 17 Ves.
v. Calmady
558, Calmady
s

thumberland,

lb.

EQUITY JURISDICTION".

202

a Modus.

Ij. Kills to establish

Cross

Bill, against a

not allowed to

is

Modus,

Bill to establish a

demand

file

in the nature of

for Tithes; for a

a Bill to establish

ii

Person

Modus,

disturbed by Pro-

unless he has been actual!}'

ceedings at Law, in Equity, or in the Ecclesiastical

Court

And

1
.

must

the Bill

set out the

Modus

sought to be established, with certainty or the Bill

,

Mill be dismissed
It

seems doubtful whether occupiers only, and

not owners, can have a decree for establishing

payments

in lieu of Tythes

case of that description

A Lessee
tive

establish a

to

Stacks, and

who

Bill for

custom

may make

there being only one

of a Rectory

Lease may bring a

has

made

Tythe

a deriva-

and

in kind,

of setting out Corn in

the person

who

is

entitled

to the Inheritance, a party, notwithstanding the

Tythes themselves were out

for
it

which the Account

is

in

Lease

prayed

at the

time

for otherwise

might introduce great inconveniences by a col-

lusion between the Lessees and the occupiers

16. Bills to
It has

marshal

been held, that

by which

his

Debt

is

ing an Interest in one

and see
Ves. Jun. 5G8;
Metcalf v. Beckwith, 2 P.
Wins. 377, 8. Baring v. Nash,
I Ves. and Bea. 554.
Gordon v. Simpkiuson,
II Ves. 510. Lord Coventry v.
Burslem, 2 Anst* 507." n.
4 Cwill. Tvth. 15 J0.

if

Securities.

a Party has

two Funds

secured, a Person

Fund only
v

Ekins

hav-*

has a right in

v*

Dormer, 3Atk.

534.
w
Yid. Warden, &c. of St.
Paul's v. Morris, 13 Ves. 1(>3.
* Canons of St.
Paul's v.
Crickett, 2 Ves. Jun. 563.
y

Hayterv, Stapilton, 2 Atk.

130.

rnEVENTION OF FRAUD.
Equity to compel the former
fund,

it'

both,

that

203

to resort to the other

necessary for the satisfaction of

is

A. has two Mortgages, and B.

[f therefore

has one, B. has a right to throw A, upon the

Security which B. cannot touch'.

So, where in Bankruptcy the
lays hold of all the Property,

Crown

the

ditors,

has

Crown by Extent
even against Cre-

been confined

to

such

property as would leave the Securities of Incumbrancers effectual \

In a case where the Loyalist Estates in America,

were, under the forfeiting Acts, to be sold for the

payment of debts,
for

this

was held not

be a ground

to

an Injunction to restrain an Action here on a

Bond \
But though,
liable to

if

two Funds of a Debtor

one Creditor, and only one Fund

ther, the former shall be

thrown upon that Fund,

to

which the other cannot

he

may

resort,

avail himself of his only

in

order that

Security,

done without Injustice

that can be

arc

to ano-

to the

-where

Debtor

or the Creditor, yet that principle has never been

common
who are not

pressed to the effect of Injustice to the

Much

Debtor.

common

less,

have persons

Creditors of the same Debtor, a right to

compel the Creditors of both Funds

the one,

those

in

who

order

to

to resort

to

leave a larger dividend for

the other*.
can claim against
o

Marshalling of Assets, are considered elsewhere.

Lanov

v.

Duke and Du-

chess of Atholl, 2 Atk. 44G;

see Aktrieh v. Cooper and
there, 8 Yes. 388. 395,

Mb.

b
Kempe against Antill, 2
Bro. C. C. 11.
c
EJtpa'rte Kend.aH, 17 Vc~.
&27.

EQUITY JURISDICTION.

204

Having considered the Cases

in

which

Court

we now

of Equity interferes to prevent Fraud,

proceed to the consideration of those cases, where

Equity remedies Fraud which

Judges have never ventured

mitted.

as a general proposition

what

com-

has been
to lay

down

Fraud 4

constitutes

nor can any invariable Rule be established. Fraud

is infinite,

and were a Court of Equity to lay down

Rules,

how

against

it,

dence of

they would go in extending relief

far

or to define strictly the species of Eviit,

would be crampt

the Jurisdiction

and perpetually eluded by new schemes, which

the fertility of

Man's Invention would contrive 6 .

All Frauds are cognizable in one or other of the

Courts of Justice.

Some

such turpitude,

are of

that the Criminal Courts only have Jurisdiction

over them

for

Courts of Equity do not

consider Fraud in the light of a Crime

punish

their province to
sorial

f
;

to

It is not

nor have they a cen-

Authority they interfere

Cases of Fraud

in

in a civil,

affect

The

and not a criminal point of view.

Court of Star Chamber not only gave the same Relief as

Courts of Equity

now

do, in Cases of Fraud,

but also punished the fraudulent Defendant

it

and

was the ancient course of the Court of Chan-

cery in cases of notorious Frauds, to decree a Defendant to pay exemplary costs

d
See Mortlock v. Buller,
10 Ves. 300, 7.
e
See Lord
Hardwicke's
Letter to Lord Kaimes, 1 vol.
Life of Lord Kaimes, 237 ; and

see

but that practice,

what

effect,

is

in

said to the

Lawley

v.

same

Hooper,

3 Atk. 278.
f

See Walthain

2 Atk.

43.

v.

Broughton,

FRAUD.

owing

20.)

to the difficulty of carrying

Exe-

into

it

cution, has long since been superseded.

Fraud, has been defined tobe, any kind of Artifice

by which another

is

deceived

6':

surprize,

all

is

used to cheat any one,

Fraud.

dered as Fraud

brance, that in

all

And
;

consi-

is

worthy of remem-

it is

cases of Fraud, the

not die with the Person

that

to be considered as

is

Collusion in a Court of Equity

u

trick,

way

cunning, dissembling, and other unfair

remedy does

but the same

relief

may

be obtained against the Executor of the Person

committing the Fraud': nor can the statute of

Limitations be pleaded to a Bill for the discovery

of a Fraud

k
,

length of time forming no Bar

length of time "as

"No

Lord Erskine has more than once

emphatically observed," can prevent the unkennelling'

of Fraud."

admits of some

committed

is

ought

to

But

general proposition

this

qualification; for

where the Fraud

a considerable time

state that,

years before the Bill

it

was

back, the Bill

was discovered within six

filed"; or a

waiver of the

objection as to length of time should appear on

* See
des
Pothier Traite
Obligations, Partie 1. chap. 1.
s. 1. Art. 3. s. 3.
h
Garth v. Cotton, 3 Atkyns,
757.
'Garth and Cotton, 3 Atk.
757. and the decree to that
effect, ib. p. 758.
*

liicknell v.

Gough, 3 Atk.

558.
'Pickering and Lord Stamford, 2 Ves. Jun. 280.
m MS. See also
Cottrell v.
Purchase, Forester 00.
and

S. C. in MS|. Bacon's Tract9, p.

37. 1 Ves. Jun. lt>0, 328. and

see Pickering v.

LordStamford,

2 Ves. 280.
n

Purcel

]4

Ves.

Company
3 P.

Macnamara,
Sooth
Sea

and
91.

Wnos.

v.

WymondseH,
243.

Dough

see

also

and what is
030.
Hort,
Gilford and
said in
1 vol. Scho. and Le Froy, Rep.
and in Medlicott v.
400.
and Beatty,
O'Donncll, I

Ml

160.

EQUITY JURISDICTION,

20O

Length of time always

the face of the proceeding .

forms a strong objection where

shew

acquiescence

but in no other way.

Accounts

case of a Steward keeping his

dulent manner,

can be used to

it

In*

the

in a frau-

has expressly been said, " there

it

can be no period, however remote, through which

the Court will not look for the purpose of setting

such an Account right p ."

But even
will

fraud the Court

in a case of gross

not decree an Account after a considerable

Legatees and

against Executors,

length of time,

innocent Persons, claiming under the fraudulent

party

In

q
.

cases of

all

Fraud which

not penal, a Court

is

with

of Equity has a concurrent Jurisdiction,

Courts of

Law

r
,

with the exception

in obtaining a Will, which,

Estate,

is

vel

non

and

decided upon

relates to

it

in the shape of an

Real

if

Issue devisavit

of personal Estate,

in

the Spiritual

is

touching the Fraud

v
;

though

it

exclusively

Court

may be examined by way

Parties

Fraud

always referred to the consideration of a

Court of Law,
s

where

to

as

where

of allegation

has often been

lamented, that a Court of Equity cannot take

cognizance of Fraud
Estate

Wills of personal

to

Picket v. Loggon, 14 Ves.

244.
*
Earl of Hardwicke v.
Vernon, 14 Ves. 511.
Doleraine v. Browne,
3
('. ('. 033
and see Hefty
Dinwoodv, 2 Ves. Jun. 02.
r
Colt v. Woolaston, 2 P.
Wins. 136. Bright v. Evnon,
"
I Bur. 305. 4 Inst. 84,

Bro.

as

Powis

v.

Andrews, 2 B:o n

470. Bates v. Graves,

2 Ves.jun. 208.
Keiriek v. Barnsby, 7 Bro.
P. C. 449. Toml. Edit; and
see Archer v. Mosse, 2 Vern. 8,
C.

P.

'

v.

Stephenson

v.

Gavdener s

2 P. Wins. 286.
*

C47.

Ex

parte

Fearon. 5 Ves^

FRAUIi.

807

Every question concerning the Execution and

validity of a Will under which any legal OX equi-

Land

table Estate in

only triable

claimed,

is

is

properly and

Law nor do Courts of Equity

by which aTrust only is devised,
Trial, if desired x
The Court will
at

establish a Will

without a

not, in any case, set aside a Will, without direct-

ing an Issue
If,

for

y
.

therefore, a Bill be fded to set aside a Will

Fraud, and for a Receiver, the Defendant

may

plead that the Will was duly executed, aud that

it

ought

to prevail,

upon an Issue

till

should be found to be otherwise

at

Law

it

but the Plea

cannot be extended to the Receiver, for the Court

will not suffer

its

hands to be tied up,

progress of the Cause

it

if in

the

should be necessary to

appoint a Receiver'.

But though

a Will of personal Estate proved in

the Spiritual Court, cannot, though obtained

Fraud, be controverted in Equity yet

if a

by

Party

claiming under such a Will comes for any aid in

Equity,

And
good

at

Fraud:

will not be granted

it

in

some

cases,

Law, may be
as if

it

him a

seems, a Will, though

set

aside in Equity

A. should agree

to give

for

B. Bank

amount of*lOUO, in consideration

his Lands to A., and accordingly B. does make such a Will, and//, gives
Bills to

that

the

B. should devise

Vid. what is said Are.

7 vol. Bio. 1'. C. 449. Ed"
Toinl.
3
Bates v. Graves, 2 Ves.
jkya, \). 288.

Anon. 3 Atk.
Kelson

70.

v.

17.

Oldtidd, 2 Vein.

EQUITY JURISDICTION.

*^08

B. the Bank

Bills,

to be forged,

this

may

but those Bank Bills prove

though a good Will

Law,

at

nevertheless be avoided in Equity by

Testator's Heir, for the

Fraud

the

'.

Previous to the consideration of cases of Fraud,

it is

proper to advert to some Rules laid

down upon

the subject.
1.

as a

The Rule

of

Law

as to Fraud, is considered

good Rule in Equity,

never to be presumed

which

in Equity,

Parties

not so at

who would have

Law a

at all,

obtained by Fraud,

it

must

it

will

liable,

b
.

in pari for Fraud.

be, in toto

and

be set aside in

Conveyances,

slight

grounds

set aside

but whenever Suppressio

they

setting aside

afford a

Trenchard

v.

Wanley, 2 P.

Wms. 160; and see Townshend

v. Lowfield, 3 Atk. 536. Sed
Vid. Earl of Chesterfield v.
.Tanson, 1 Atk. 351, 2. where
it is said
there may be presumptive fraud.
b
Thompson against Harri-

son,

2 Bro.C.

sufficient

ground

any Release or Conveyance

b
Goss v. Tracy, 1 P. Wins.
2S8. S. C. 2 V'ern. 700.

C. 164.

d
.

on

veri or

Suggestio falsi occur, and more especially

together,

it

Releases and Agree-

ments made by Parties wiil not be

e

if

toto,

though innocent Persons are interested under

Solemn

is

Fraud^ be released,

A Deed cannot be set aside

If set aside

Fraud

been secondarily

cannot be proceeded against

3.

that

but that may be a Fraud

Principal in a

If the

2.

is

(viz.)

both
for

e
See Myddleton v. Lord
Kenyon, 2 Ves. juri. 408. Lawley v. Hooper, 3 Atk. 281.
d
Davidsou
v.
Russell,
2 Dick. 761. Worseley v. De

Mattos, 1 Bur. 474. Huguenin

14 Ves. 273.
e
1 P. Wms. 727. 1 Atk. 10.
1 Ves. If). 2 Atk. 592.
f
See Jervis v.Duke, 1 Vern.
19. Broderick v. Broderick,

and Baseley,

FRAUD.

any Instrument

If

obtained from Persons

is

ignorant of their Rights, but

whose Rights

known

the Instrument, a

to the Party obtaining

Court of Equity
even gone

farther,

obtained from

will relieve

and have

are

Courts have

set aside

Instruments
their

Parties, ignorant of

Rights,

although no Fraud or Imposition has been prac-

tised

An Agreement

founded on

Lease,

for

statement, Vill be rescinded,

fraudulent

and an

account directed between the Parties'.

If,

indeed, a

tract,

makes

Man upon

a Treaty for any

a false representation,

Con-

whether know-

by means of which, he puts the

Party bargaining, under a mistake upon the
ingly, or not

Terms of
Equity

Bargain,

it is

a Fraud,

and relievable

in

'.

If a Person,

builds on

under the influence of mistake,

another person's ground, that person

seeing the Building, and not interfering to put the

party on his

guard,

truth, suppressio veri,

such suppression
is fraudulent,

1 P. Wms. 239. Cann v. Cann,

v.
P. Wms. 727. Bowles
Stewart, 1 Sch. and I.efr. 209.
E Broderick and Broderick,
1 P. Wms. 239. and the cases
referred to in the note.
"
Evans against Lewellyn,
2 Bro. C. C. 150.
Long v. Fletcher, 2 Fq.
1

Abr.
*

5.

Anslie

VOL.

v.

I.

and a Court

But there does not

of Equity will give relief.

of the

21 : and see Graves v. White,

Freem. 57. Scou v. Scott,
mentioned arg. 3 Ves. 458.
Nevide against Wilkinson,
l

540. Evans v.
Ves. 174, 183.
Burroughs and Lock, 10 Ves.
475. De Mannnillev. Cromuton, 1 Ves. and Bea. 355*6.
,l
Pelling ,and Armitage,
1

Bro. C.

C.

liicknell,

12 Ves. 85; See also 2 Atk,

Medlycot, 9 Vt'*.

EQUITY JURISDICTION.

210

appear to be any Case, in which a Lessee either

of a Term, or from year to year, making any im-

provement upon the Estate

Possession,

his

in

though with the complete knowledge of the Landhas been held entitled as against that Land-

lord,

lord, to

have his Lease prolonged until he

shall

the Improvements he

obtain reimbursement for

has made".

knowing the Tenant's Lease to

be bad, stands by, and allows him to make imIf a Landlord,

provements on the

faith

of the supposed good-

ness of his Lease, in such case,

would

relieve".

being Tenant in Tail,

So, too, where A.

mainder

to his brother

of the entail,
life

seems, Equity

it

makes

on

his wife for

without levying a

fine,

or

which B. who knew of the

suffering a recovery,

but does not mention any thing

of the entail, because,

as he

confessed in his

he had spoken any thing of

answer,

if

therly

a recovery,

mainder,

A. not knowing

in tail,

a settlement

for her jointure,

entail engrosses,

B.

re-

it,

his Bro-

might have cut off the

and barred

him

re-

although after the

death of A., B. recovered in Ejectment against

the

Widow by

force of the entail

yet she was

relieved in Chancery, and a perpetual Injunction

granted,
entail

for this

since,

had

Fraud
it

in

B.

in

concealing the

been disclosed, the settlement

might have been made good by a recovery

S2. East India Company v.
Vincent; and seeDannv.Spurrier, 7 Ves. 231.
" 12 Ves. 85.
but see 7 Ves.
;

231.

Pelling and Armitage,

12 Ves. 85.
p
3 Bacon's Abr. 299.

FRAUD.
So, where one

Executrix, and
his

Mother

his

211

made

his Will, and his Wife

Son afterwards prevailed on

to get the Father to

make

new

Will,

and to name him Executor, he promising to he

a Trustee only for his Mother this was consi;

dered a Fraud, and the Son held to be accountable as a Trustee

''.

So, too, there are various cases where a person

by silence contributing to a
Fraud, has been compelled to remedy the mischief

standing by, and

his fraudulent silence has occasioned'.

Upon

this

ground

that

it is,

a Landlord has

been restrained from cutting ornamental trees in

a Lawn during the Term, his conduct amounting
to a consent to the Tenant's plan of

laying out the

If a

Lawn, &c.

Conveyance by Lease and

which

in a

Release, or

by

obtained

been

gain and Sale, has

Improvement,

Bar-

means,

Court of Equity have the character of

Imposition, Fraud, Oppression, or undue Advantage,

which, indeed,

may

all

be comprehended

under the general term, Fraud, a Fine, constituting

Conveyance which is so affected,

whatever may be the effect at Law, is no bar to

part of that

'Thynev. Thyne,
290

and

determined on the same

ciple,

as

Vern.

see also other cases

Sale of Land
of articles,

and suppression

See Hunsden v. Cheney,

2 Vern. 150. the concealment
r

prill-

Mead and Webb, 4

Bro. P. C. 497. a case between

Lessor and Lessee as to a suppression of amount of Land

demised. Kamsden and Hylton,

2 Ves. 304. Release held bad
on account of the suppression
of a Settlement. Beatriff and
Smith, Eq.
Ca. Abr. 357.

150.^ Draper
and Borlan,2 Vern. 370. Comcealment of an Incumbrance,
Ihbotson and Rhodes, 2 Vern.
554. Concealment of a Mort-

of an entail, p.

gage.
'

Jackson

088.

P 5

v.

Cator, 5 Ve8.

EQUITY JURISDICTION.

212
relief

in

Equity.

under

it,

is

The Person

a Trustee;

deriving Title

and the species of Relief

[f a Continby directing a Reconveyance

gent Remainder is destroyed by a legal conveyance.
and that conveyance is obtained by Fraud,
Equity will relieve against it". And so, where a
Fine, followed by Non-claim, was levied by one
who got possession under a forged deed, a Court
1

is,

v
of Equity decreed against the fine

Letters Patent,

if

obtained by Fraud,

may be

set aside at the suit of the Attorney General

Fraudulent Instruments

may be proved

to

be

such, by facts apparent on the face of the Instru-

ment,

deration of a

the

by extrinsic Evidence. The consiDeed may be such as, of itself, to shew

as well as

Deed was

fraudulently

obtained.

Allusion

young Heirs
and Reversioners, and in what manner inadequacy
x
In
of consideration affects Contracts by them
has already been

made

to the case of

regard to Persons not standing in those situations;

mere Inadequacy of Price, unless

what

is

termed, gross inadequacy,

for annulling
i.

e. to

been
1

be performed,

if

see also

v.

Powell,

Ves.

Penne v. Peacock,
lor. 42. it was doubted how far
fraud could aflect so solemn
au act as a Fine ; but in the
In

not a ground

entered into, and understood by the

fairly

JSarnsley

289.

to

the same appears to have

Wilkinson v.
Brayfield, 2 Vern. 307. Baker
390.
Pritchard, 2 Atk.
v.
;

amount

an Agreement, though executory^

Pickett v. Loggon, 14 Ves.

234

is

it

same case in MS. no such

doubt appears.
u
Englefield v. Englefield,
Vern. 443, 44G.
v
Cartwright v. Pulteney,
2 Atk. 381.
w
Attorney Gen. v. Vernon,
1 Vern. 277,370. S. C. 2 Ch,
Reports, 353.
* A^ite,
p. 97. &c.

FRAUD.
parties,

ed:

21.'i

and capable of being specifically perform-

still less,

does such inadequacy form a ground

for rescinding an

Agreement

ally performed.

Lord Chief Baron Eyre,

executed,

i.

actu-

e.

ob-

he has been followed by

succeeding Judges,) that, " there was no case
served, (and

in

this

Price, independent of

where mere Inadequacy of

other circumstances,
set

had been held sufficient to

aside a Transaction

."

hard and unconscionable,

the Inadequacy of Price

bargain

and yet
is

such

as

may

be

valid, unless

shocks the

conscience, and amounts in itself to conclusive

and decisive evidence of Fraud

in the Transac-

tion^.

Whenever
adequate

an agreement
to

as

is

satisfy the

conscience of the

Court, by the amount of the

there

so extremely in-

inadequacy,

must have been imposition,

that

or that species

of pressure upon distress, which in the view of a

Court of Equity amounts

will give relief*.

to oppression, the

An Annuity

Court

cannot, generally

speaking, be set aside for Inadequacy of Price

x

See

Griffith v.

Spratby,

2 Bro. 180. in ii. and so Moth

v. Atwood, 5 Ves.
845. and
what is said by Lord Erskine
in

Lowther

v.

Lowther, 13 Ves.

103.
y

See Clarkson v. Hanwav,

2 P. Wms. 203. Coles and Tr'ecothiek, 9 Ves. '240 ; and see
Gibson v. Jeyes, G Ves. 273.
Crowe v. Ballard, 1 Ves. Jun.

219. Heathcote and Paignon,

C. 107 and see How
2 Bro.
v. Wilder 2 Ves. 510. Low

a
;

but

and Barchard, 8 Vcs. 137

and see 10 Ves. 31*3. and
14 Ves. 240. and what is said
by the Master of the Rolls in
Burroughs v. Lock, 10 Ves.
474.
2
Underbill and Horwood,
10 Vcs. 219. and so is Ueathcote and Paignou, 2 Bro. C.
C. 107. Peacock v. Evan*,
10 Ves. 517.
a
Plover against Sherrard,
18, Speed and
3 Anst. 752.

Ambl.

Phillip*,

EQUITY JURISDICTION.

214
if

the price be grossly inadequate,

aside

'.

What

it

may be

set

shall be termed gross inadequacy has

,

not been defined, unless the saying, "

the conscience," be a definition

was

for one

said,

would be

half of the worth, that,

relieved against

The doctrine

of the Scotch

does not apply, in

its full

what shocks

but where a
it

Sale,

has been

Law as

Men

to facile

extent, in England

but

wherever a person taking advantage of the necessities

of another,

practices

extortion,

Court

of Equity will decree the Party to refund, and

without enquiring into the

stances of the Imposition

particular circum-

d
.

Lord Eldon, however, has on

this subject put

" Suppose," says he, " that

a very strong case.

A. B. had
will give

said,

'

Make out your

Title as Heirs,

no Information or Assistance

without doing

so,

you

will take

but

if

elQOO, I will

give that sum:' considering the passages that are

met with in the Judgments of this Court,

though a valuable Property had been acquired, to
to be

which that sum was very inadequate, I will not

say whether such a case would have been reached
by the Doctrine of this Court, protecting, upon
e .' J

public principles, persons in distress

If a Eargain

which was

by subsequent

events,

Heathcote and Paignon,

C. C. 167. Lawley v.
Hooper, 3 Atk. 278. Underhill v. Horwood, 10 Ves. 219.

Bro.

Maskeen

8 Geo.

2.

v.

1733.

Cote, T.

MS,

T.

fair at

the time, becomes,

very advantageous,

the

a
Thornhill v. Evans, 2 Atk.
330.
e
See Pickett v. Loggan,
14 Ves. 240 and see on this
subject, Ardglasse v.
Muschamp, 1 Vern. 237, 239.
Proof v. Hines, Forrester 111.
:

FKAUD.

215

Vendor cannot make any claim in a Court of

Equity on the ground of inadequacy of Price*.
for instance,

If,

Man

should contract

an Estate for a Life Annuity, und

before the end of the

would
So,

execute the contract

still
if

Deed be

*.

entered into by Parties ap-

prized of their rights, in order to put

end

an

cannot be set aside

''.

In some few instances, as in Post Obits

of Reversions

and Sales by

gross inadequacy

ground of

would

not,

the Court ever

Marriage Contracts

for

unequal, and

was

give

they

in statu quo,

said in

relief

made by

even upon his death-bed,

Batty

and

Lloyd,

Venn 141. and Gowland and

De Faria, 17 Ves. 25.
1

See 3 Bro.'C. C. G05. and

Lord Eldon adopts this casein
Coles and Trecothick, 9 Ves.
240. Muctimer and Capper,
1 Bro.
*

Stephens

very

against

Lord

it

unmarry the

or

tion of aud previous to his Marriage,

See

Wicherley,

brought a Bill to be

where the Remainder-man

'

even

against

may be

Wichcrley v.

relieved against a Jointure

Life,

seems, form

it

favour of the Wife, because

in

cannot set the Wife

for

Sales

Settlements, Jointures, or

Provisions, though

Parties, as

Auction

',
1

relief.

Nor does
other

to

upon inadequate consideration,

a Suit, although
it

di< s

Court

half year, the

first

Sell

Annuity

signed, and the Party to have the

is

to

the contract

Visct.

the

Tenant

in considera-

by virtue of

Bateman,

Bro. C. C.

22.

See Wharton and May,

5 Ves. 27.
k
Nichols v. Gould, 2 Ves.
*

422.
'

35.

White

v.

Damon, 7

Ves.

EQUITY JURISDICTION.

216

power,

denied"

reserved

him

to

but

relief

was

In

these cases

all

deration,

open,

it

must be remembered, that

voidable for inadequacy of consi-

Contract,

if a

it

confirmed by the Party, with his Eyes

is

will not be relieved against

n
.

Whatever previous determinations there may

formerly have been to the contrary
fully

settled,

upon the Statute

27

it

is

Eliz.

now
c. 4.

a Statute passed to prevent Frauds on Purchasers,

that a voluntary

actual Fraud,

is,

however

Settlement,

free

from

by the operation of that Statute,

deemed fraudulent, and void, against

a subsequent

Purchaser for a valuable consideration, even where

the Purchase has been made, with notice of the
prior voluntary Settlement.

the same
effect

The

Statute receives

construction, and produces the

same

both in Law, and Equity; and a Purchaser

of an Equitable Estate for a valuable consideration,

though with notice,

is

no more affected

by a

voluntary Settlement, than the Purchaser of a

p.

legal Estate

"

hardly

wicfee,

know

an Instance," says

Lord Hard-

" where a voluntary conveyance has not

been held fraudulent against a subsequent Purchaser

m North

Wms.
n

And

."

v.

where a Power

Ansell,

P.

619.

Maskeen

v.

Cote, Trin. T.

8 Geo. 2. 1733. MSS.

See White v. Stringer,

Lev. 105.

p Buckle v. Mitchel', 18 Ves.

110. Pulvertoft v. Pulvertoft,
18 Ves. 90. Mitcalfe v. Pulertoft, 1 Ves. and Bea. 183,4.

Otley

v.

Hill

v.

is

executed under

Manning, 9 East. 59.

Bishop

of Exeter,

2 Taunt. 09. Evelyn v. Teniplar, 2 Bro. C. C. 148. said to

be incorrectly reported, 18 Ves.
and see Ambl. 288. 1 Eq.
Abr. 334.
" White v. Sansom, 3 Atk.
412. Sed Vid. Jennings v.
Sellick, 1 Vern. 407.
91.

FRAUD.

217

a voluntary settlement, and that

wards executed

Power

for a valuable consideration,

Purchaser will have the benefit of it

but

chase has been made, at an undervalue,

not, perhaps,

after-

is

the

Pur-

if

it

would

previous voluntary

invalidate the

settlement

Man makes

Conveyance of
Land, and the Alienee sells the same for a
valuable consideration, the Land is bound '.
It is observable, that where a voluntary conIf a

veyance

is

a voluntary

afterwards defeated by a Sale for valu-

no instance, of a
satisfaction being decreed against the maker of
the voluntary Conveyance, or his Estate, unless,
able consideration,

there

is

where there has been some covenant, on which

an Action, or Suit might be maintained v
.

Every voluntary conveyance of a Man, for his

own benefit, is fraudulent against Creditors w but
every voluntary conveyance is not fraudulent x
;

voluntary Conveyance of real Estate, or a Chat-

tel Interest, in

favor of a Child,

by one, not

in-

debted at the time, though he afterwards becomes

indebted,

good, as against Creditors, though not

is

against Purchasers

>',

provided there be no parti-

cular evidence, or badge of Fraud,

revocation, for
session

instance

Hart v. Middlehurst, 3 Atk.

See 1 Ves. and Bea. 183,4.
* Sagittary
v. Hyde, 2 Vern.
44. S. C. M\ Rogers v. Lang1

of pos-

.)

power of

retention

ham,

or

(a

Sed. 133.

Williamson

1 Ves. 51(5.
w
Fitzer
13.

v.

v.

Codrington,

Fitzer,

2 Atk.

Sagittary v. Hyde, 2 Vera.

44.
1

y See Russell v. Hammond,

Atk. 15,lu.
* Peacock and Monk,
1 Ves.

132.

Bates v. Graves, 2 Ves.

292. and see Stileman v. Ashdown, 2 Atk. 481; and Lord
Banbury's Case, 2 Freem. 8,

EQUITY JURISDICTION.

218

one

If

voluntarily

settles

with a

his Estate,

power of revocation, with the consent of J. S.

who is his own Relation, or one that may be
supposed to be at his command, it is fraudulent
within the Statute
of others,

who

but

be with the consent

if it

cannot be supposed to consent but

upon very good grounds,

within the Statute

it

not fraudulent

is

b
.

back an Annuity

If a Father takes

to the value

comprized in the Settlement,

of the Estate

considered as tantamount to

it

is

a continuance in

possession, and Creditors will be relieved against

such settlement.

So,

if

Bond

or Mortgage, or

Conveyance of an Estate is made, to himself and

his Wife, making her joint purchaser, obligee, or
grantee, so as to entitle her to the survivorship if

he dies in her

life,

yet that

voluntary act with

is

considered as a mere

respect

to

Creditors,

fraudulent, although as between the

the Heir or Executor,

But

if

conveyance

voluntary
debted,

it

would

one indebted at

it

Estate for

is

prevail

ike lime^

to

Wife, and
c
.

makes a mere

a Child, and dies in-

considered as

still

voluntarily,

of

part

the benefit of his Creditors

indebted, conveying

and

his

Man

being always

looked upon as meaning a Fraud on his Creditors

e
.

Settlement be made after

If a

'

Lord

2Freern.
c

Banbury's

Case,

8.

Underwood

1 Ves. 280.

v.

Hitbcox,

Marriage, in

e
Lord Townshend v. Wyndbam, 2 Ves. 10, 11; and see
1 Atk. 15. and 94. Taylor v.

Jones,

2 Atk. 600.

FRAUD.
pursuance of a'Bond
B

Marriage

'2l

or other

upon payment of

sum

Agreement before

Money

as a

Por-

Money; or even
upon an Agreement to pay Money, (provided the
Money be afterwards paid ;) this makes the Settton

new

or a

additional

of

good and valuable both

tlement

Law and

at

Equity, against Creditors, as well as Purchasers',

k
provided there be no Fraud, nor vast inadequacy ,

for

some inadequacy

unimportant

is

'.

Person before Marriage, may settle all his

Property upon his intended Wife, even his move-

and the

able effects,

of his being indebted

and of her knowing him

at the time,

not,

fact

even

Creditors,

against

Transaction

nor

is

to

band should receive a Portion with

n

tlement

And

}i

so, will

necessary that the

it

for the consideration of

be

invalidate

his

the

Hus-

Wife

m
;

Marriage protects the Set-

Real Estate form part of the

Settlement, and after the Marriage, the

Husband

build on the Land, or enfranchise Copyholds in-

cluded

in the Settlement,

yet the Creditors can-

not have the benefit of these Acts by

charge against the Wife
So,

if

f
Jason v.
286.

Bond

is

Jervis, 1

of

given on Marriage and receipt

Vern.

B
Hylton v. Biscoe, 2 Ves.
308.
h
Stileman v.Ashdown,2 Atk.
479. Jones and Marsh, For. 63.
S. C. MS. Wheeler against
Caryl, Ambl. 121
and see
Hilton v. Biscoe, 2 Ves. 308.
Browne v. Jones, 1 Atk.
190. see also ex parte Hall,
;

way

1 Ves. and Bea. 112. Prec. Ch.

101,405.
k
Ward v.Shallet, 1 Ves. 18.
See Jones v. Marsh, For.
l

05. S. C. MS.
- Browne v. Jones, 1 Atk.

190.
"
Nairn v. Prowse, 6 Ves.
759. Wheeler against Caryl,

Ambl. 121.
Campion
271.

v.

Cotton, 17 Ves.

EQUITY JURISDICTION.

220

ofa Portion, conditioned to pay a Sum, beyond

the Marriage Portion, in case of death
vency, such

Bond

is

or

insol-

good, so far as relates

to the

Property received with the Wife, but beyond that,

is

fraudulent as against Creditors

make

could

100,000, and take

do so

if

it

fraudulent

is

after

Marriage,

such Set-

sufficient ,)

contains a Provision for Debts q ,

pursuance of
s

to

made

a Settlement be

tlement, unless
in

amount
the amount of

Marriage in Scotland

is

Trader

property out of the

all his

hands of his Creditors

But

if a

a provision of that sort to the

of al000, he might

or

no bounds

for

be set to such agreements:

could

(a

Marriage

articles before

r
,

is

against such persons as were Creditors

at the time the Settlement was

made

1
;

unless

it

be

a single debt", or unless the debt be secured by

Mortgage,

in

Settlement w

which case
for to

do

it

would not

that,

it

seems

affect the

the Party

must have been

insolvent at the time

observable, that

(with the exceptions alluded

if

there be Creditors

ment,

at

and the Settlement

part of the Assets,

Ex parte Meaghan, 1 Sell.

and Left. 179. and Ex parte
Murphy, lb. p. 44. overruling
what is said by Lord Kenyon
in Staines v. Plank, 8 T. R.
369.
p

Ex

parte Hall, 18 Ves. 112.

George v. Milbanke, 9 Ves.

is

and

Beaumont

1 Ves. 27.

v.

Thorpe,

it is

to,)

on that account

all

so settled, be-

subsequent Cre-

8
See Watts v. Thomas, 2 P.
Wins. 304.
l
Kidney v. Coussmaker,
12 Ves. 155. see Middlecombe
v. Marlow, 2 Atk. 520. and
White v. Sansom, 3 Atk. 413.
v
Lush v. Wilkinson, 5 Ves.

387.
w

104.

but

the time of such Settle-

declared fraudulent,, the property

comes

Stephens against

2 Bro. C. C. 30.

Olive,

FRAUD.

221
x

ditors are let in to partake of

it

case, a subsequent Creditor filed,

what

faking

Bill, in

payment of

By

Conveyances were
were Creditors
ance was made

called, a

thus establish a fund for

own

his

debt.

Common Law,

the

is

ont

in

order to prove debts antecedent to

the Settlement", and

the

and

fraudulent

avoidable by

at the

Gifts or

Persons

who

time such Gift or Convey-

but such Gifts or Conveyances

were not avoidable by persons who became Cre-

making of them
And though a voluntary Deed, a Bond
subsequent

ditors,

stance,

is

to the

void against

Creditors, yet

if

for in-

arrears

have accrued under such Bond, these will form

a valuable consideration

and

the assignment of a Lease,

Deed may be

arrears, the

tors

if a

is

new Bond,

given

for

or

such

sustained against Credi-

'.

So, to those cases, where Property belonging to

the wife, in

Husband, by a

Bill in

Widow,

it

See Taylor
;

and

see

v.

Equity, and the Court di-

is

make a Settlement

2 Atk.
said of

that in Dundas v. Duten9,

1 Ves. Jun. 198. Arg. Moun-

tague and Lord Sandwich,

mentioned in note to 12 Ves.
p. 15t. See also Walker v. Burroughs,

Lush
384; and
y

Atk. 93.
Wilkinson, 5 Ves.

v.

see

what

will be

good

has been holden, may, previous

Jones,

what

sought by the

to a second Marriage,

COO

is

such Settlement

rects a Settlement,

against Creditors

hands,

Trustee's

is

said of

in favour

that case in Kidney v. Coussmaker, 12 Ves. 155.

' Twine's
Case, 3 Co. 83. a.
Upton and Bassett, Cro. Eliz.
444. Dyer, 294,5.
Cilham v. Locke, 9 Ves.
C12. Stiles v. Attorney General, 2 Atk. 152.
b
Wheeler against Caryl,

Ambl.

121.

EQUITY JURISDICTION.

22'2

of the children of the

first

Marriage, and of the se-

cond Marriage; and the same

be consider-

will not

ed a voluntary Settlement, or fraudulent and void

as against subsequent Creditors and Purchasers .
if

There are

Agreement before Mar-

reciting a parol

riage,

riage, is

Mar-

dicta, that a settlement after

not fraudulent against Creditors, provid-

ed the parol Agreement had actual existence

but,

it

rectly decided.

DuTens
that

does not appear, that the point has been di-

it

It

was discussed

Dundas and

in

but Lord Thurlow, though inclined

should stand good, said, it was a mere
;

matter of curiosity,
the plaintiff,

as

there referred to

it
;

if

the

first

was.

point was against

case in

Levinz

is

a Dictum, not a Decision, that

the Settlement was void

for

though a parol pro-

mise before Marriage was proved, and a

ment made

after the Marriage, yet

it

Settle-

was not made

with such a correspondence to the parol promise,

as to appear to have been made in execution of

was held that the Court

could not connect them, but the Settlement must
it

and therefore

stand upon
after

A
it,

its

Marriage

own

it

footing, as a

mere Settlement

f
.

voluntary Settlement binds the Party making-

nor can he alter

it,

how much

soever he

may

be inclined to do so, unless there be a power of

revocation s . " He must lie down under his own

e
Newstead
Atk. 264.

v.

Searles,

1 Ves. jun. 1<J6.

2 Lev. 146.

Randal

v.

Morgan, 12 Ves.

74.

See Ambl. 260.

FRAUD.
void only as against Creditors

It is

folly."

223

only to the extent,

in

which

it

may

and

be necessary

to deal with the Estate for their satisfaction,

as if

is

purpose,

To

never had been made.

it

it is

Settlement

it

every other

good; satisfy the Creditors, and the

stands

Nor would

'.

Will, avoid a voluntary

and never cancelled

subsequent

Deed, kept by the maker,

'."

Weakness of mind does not appear to be a sufficient

ground to invalidate an Instrument.

According

to Sir

gives a Bond,

Trust

the obtaining

in

would not

set

the obligor,
will not

Joseph Jekyl, "if a weak

if

Man

there be no Fraud or breach

if

it

it,

of

Court of Equity

aside only for the weakness of

he be compos mentis

measure the

Court
Understand-

for the

size of People's

ings or Capacities, there being no such thing as

an equitable incapacity where there

Capacity
that

it

14

Lord Hardwieke,

/'

was not

sufficient to

set aside an

to be in fact

unconscionable bargain, yet

it

with

his eyes

relieve

him,

unless

Party

contracting with

means

made

into

use

Whaley

v.

Boughton

v.

open,

hard

v.

Norton,

Bou^hton,

for

and

person will enter

Equity will

not

in the

some undue
draw him into such

him,

of to

1 Vcrn. 483.

1 Atk. 625.

if a

very

in it

he can shew Fraud

12 Ves. 103. 100. Curtis

Price.

Agree-

indiscretion in

one of the Parties who had engaged

it

a legal

also, clearly held,

ment, to suggest weakness and

supposing

is

or

Osmond and Fitzrov, 3

Wms. 131. S. C. MS. under
the name of Osmyn v. Duke oi
P.

Cleveland,

EQUITY JURISDICTION.

22-1

Lord Thurlow, however, according

to some of the Reports, appears not to have
m " that
concurred in this doctrine, and observed
an Agreement

in

almost every case upon this subject, a prin-

cipal ingredient

was a degree of weakness,

and that

of legal incapacity

mond and

no

Fitzroy,

been given,

if

relief

short

in the case of Os-

probably would have

the Court had not considered Lord

more liable to Imposition, than

It seems, however,
the generality of Mankind."
that the relief in Osmond and Fitzroy, was given,
not on the ground of the weakness of the Party,
Southampton

as

but principally on account of the relation

which the

Bond

tained the
ginally

stood

Parties

in that case,

while an Infant,

or

ob-

having been

ori-

care of the

to take

hired

who

the Servant

young Lord

during his travels, which

Trust, the Court thought, continued

the servant remained in the service
in the

Report

pears that

of Griffin

who was

Woodeson,

counsel in the

set aside the voluntary

is

cause,

deed of a'weak

Deed

Sir Joseph Jekyl in

he said that,

of

or profuseness, for those reasons

merely, where no fraud appears, as was laid

by

ap-

it

Court

that the

not non compos, nor any

Improvidence

so long as

and, indeed,

and Deveuill by Mr.

Lord Thnrlow admitted

would not
man, who

in

Osmond and

down

Fitzroy

but

" Sir Joseph Jekyl might have been

Willis and Ternegan, 2 Atk.

251: see also Stanhope v. Cope,

2 Atk. 231. and what Lord

Eldon says in Huguenin and
Baseley,14 Yes. 290.

Griffin v. Deveuille,

tioned
to

3 P.

in

Mr.

Wms.

Cox's

130. n.

1.

mennote

I..ALD.

pleased to add, that from these Ingredients

tl.

might be made and evidenced a collection of

was fraud and misrepresentation

that there

and accordingly,

in this

fact,

used;'*

very case, Lord Thnrlow

decided that the circumstances of the case, and

the situation of the Parties, collectively, shewed,

was deceived, abused, and circumvented, and he declared the Deed which had
that the Plaintiff

been obtained to be void. He further observed,

(according to Mr. Woodcsons note,) that the
case of

Osmond and

could not be sup-

Fitzrorj

ported, but on the mixed ground of

Lord South*

amptons extreme weakness of understanding, as

well as the situation of Osmond".
Of the two
accounts of what Lord Tkurlow
appears to differ

Mr. Cox's

it

said,

Mr.

much from Mr. Woodcson

might

be.

Co.v's

from

inferred that weakness of

mind, short of being non compos mentis, may be

aground for setting aside a deed; but from the

other it may fairly be inferred that weakness of
mind alone, would not be sufficient to set aside a
deed, and that doctrine appears to be the most

conformable with authorities.

Excessive old age, with weakness of mind,

bea ground

conveyance obtained

for setting aside a

tinder such circumstances

was obtained from

but where a Lease

woman who was upwards

seventy-five years of age, for

Value of the Lease,

and

still it

Vol.

Append,

VOL.

less

than

the

some proof of

fraud,

invalidate a transaction".

Woodeson'a Lect.

p. 18.

I.

much

of

was held unimpeachable,

that old age, without

would not

may

Peail.

Ves. Jun.

19.

Le\V,s

\*.

2CG

EQUITY "JURISDICTION*

Underhand agreements
Equity.

in

If a

arc also relieved again;-?

Debtor compromise with

his

Creditors, and

deed of composition

acted upon as

if

signed by the Creditors, and one

of the Creditors, unknown to the

the Creditors
his

Debtor a

it

would be

such security
as well as in

where

is

Equity

to

obtains from

fraudulent and invalid

now

is

known

security for his composi-

collateral

tion, this security

rest (if

different p ,)

signed, or

is

considered as bad

It

And

at Laic,

has even been held that

a Creditor, apparently accepts,

and gives a

receipt for, a composition, in order to enable the

Debtor

to

demand, such security

a security for the rest of his

is

but takes

deceive his other Creditors,

void, although there

the Creditors,
the Fraud*.

is

no joint agreement among

nor any one

is

in fact deceived

But such agreement

rs

bad, only,

by
it

seems, as to the Creditors, and cannot be relieved

against at the instance merely of the Debtor,

has himself been guilty

who

1
.

Under the head of Underhand Agreements may

be ranked Marriage Brokage Bonds.

The

Civil

Law

allowed the pro.iene tec, or match-

makers, to receive a reward for" their pains; and

Lord Somers decreed

curing a Marriage,

in favor

of a

Bond

the procuring Of a

Law

being a good consideration

at

p
See IJibblfthwaite's case,
mentioned; 13 V'es. 586, 7.
Mawsorj y. Stock, 6 Ves.300.

Child v. Danbridge,
2
Verm 71. Middleton v. I.or<l
Onslow, 1 P. Wins. 7i. 8. Spurret v. Spiller,
1 Atk.
105.

'See Jack man

fFitstcriifld arid Jan*9en,2^ es.

J50. Sadler and Jackson, Exparte, 15 Ves. p. 52. and see 3

Ves* 45G. Eastabrooke v. Scott.

for pro-

Marriage

fur an
v.

AssumpMitchell,

13 Ves. 586. and Leicester ^.

Kose, 4 East, :>72. ovei-ruling
Feize v. RandanS <i T. R. 140.
s
Fawcett and another v.
Gee, -i Anstr, 910.
Small v..Beachley > 2Yern.
H02 but see Cecil and Plaistow, i Anstr. 202; andrawcett
and Gee, 3 Anstr. Q10.
'

1 Bro. Civil

Law. 79,

*'"

but his decree was reversed

',

Lords': and

WJW

now

it is

relieve against

in t\i& House

of

clearly Settled, that Equity

Bonds given

of a Marriage"; and

tor the

procuring

not only decree such Bonds

sum paid to be rethey being introductire of infinite jmis-

to be delivered up, but also a

funded

chirl-:

and

as relief in these cases

given on
grounds of public convenience, such Bonds do
not admit of confirmation, though, perhaps, (a sort
is

of confirmation) the remedy of the Party

released 7

The Court on

these

may

be

occasions docs

not interpose in respect of the particular damage

to the Party; but from a public consideration,

Marriage greatly concerning the Public

Bonds tend

to introduce

and every contract relating

be free and open*':

sets the

Bond

gredient of public
set such
ligor,

Bonds
sought

Another
v

Cas.

Potter

\N ins.

relief,

sort of

v.

ground

it-

is

that

one, yet the Court

were not

for the in-

the Court,

would not

it

aside at the instance of the.ob-

Keen

crimirds ; and

or Hall,

70.

where the ob-

costs have not been given

6
.

Underhand Agreementis, where

noticed
70. and 302.

Pari.

If

policy,

who is particeps

ligor has

this

a proper

aside.

Such

Marriage ought to

to

and on

though the match be

improvident Marriages.

3 P.

w
Drury v. Hook, 1 Vein,
Tievilieu,
412. Arundel v.
1 Ch. Ren. 47. Hall v. Porter,
3 lev. 411. sho. P. C. 7o.
(ilanville v.
Penning, 3 Ch;
liep. 18 Toth. 27. Cole and
Gibson, 1 Yes. 507. Smith v.
Eykwell, 8 Atk. 668.
x
Suiirii v. Brumn r 2 Yens.

3 P. Wins. 394.
Shirty v. Martin, men*
tioned in note 1, tu Roberts
and Roberts, 3 P. Wins. 71.

'

S. (\

v and
Law, For. 142.
MS. Debcnhaiu v. Ox, 1
..

Ves.277.

Cole

v.

Gibson, 1

Yes. 500,

Roberts

Wms.

70.

v.

1 Ves. 277.

392.

Q2

Roberts, 3 P.

Debenham

\ es. '277.

v.

Ox,

EQUITY JURISDICTION

2'2S

Man

under the Crown

office of trust or service

it is

of turpitude and cognizable by the

a contract

Jurisdiction of Equity'

advanced

procure another an

his Interest to

sells

commission

procuring a

for

money was

where

as

the

in

Marines, and the Purchaser was discovered to

have worn

a livery, he

was discarded, and

it

was

held that he was entitled to a decree for the

Money
"

If,"

paid, and to be

refunded with Interest.

says the Lord Keeper Henley, " there

Precedent of such a determination,

scruples to

make

no
have no
is

one, and shall glory in it*."

Fraudulent alienations by Executors will be relieved against.

Executors

Trustees for the

many

in

respects,

Equity, mere

are, in

performance of the Will,

and

for

many

but

purposes, third

persons are entitled to consider them as complete

owners

The

f
.

absolute

power they possess over

the Property of their Testator,

Law

at

and

in

Equity, and

sary, the better to enable

is

it is

them

very large, both

considered necesto

execute their

Trust, and prevent the general inconvenience of

entangling third persons in

application the Executors

of the

Assets
d

Money produced by
f

>;

nor

"Whittingham

is it
v.

Morris

v.

Burgoyne,
M'Culloek,

4152; and see Law v.

For. 140. Haningtoi) and

Ambl.
Law,

Du

may

propose to

make

the conversion of the

of any consequence, with refe-

3 Anstr. 900.
e

inquiries, as to the

Chatel, 1 Bro. C. C. 124.

and see the late Act, 41) Ceo.
3. c. 12G.
f
7 Yes. ICG. Hill and Simpson; and see Taylor l. Hawkins, S Yes. 209.

e See
Humble and Bill,
2 Yern. 440. the doctrine of
which case appears to have
been followed, though the

decree

was

reversed

in

the

House of Lords, 1 Bro. P. C.

71. Nugent v. Ci fiord, 1 Atk.
40;J, 4. S. C. 2 Yes. 209. Elliot
v. Merriman, 2 Atk. 42. Mead
and Lord Orrery, 1} Atk.. "2J7.

220

FRAUD.

rcnce to the power of Executors, whether the

personal Estate

But

if

bequeathed on a Trust or not.

is

a person dealing

that the Executor

is

with an Executor,

Property, a Court of Equity will

(it

must be

a very strong

behalf of Persons

case

beneficially

the Testator's Will'.

If,

aware

'',)

some

cases,

interfere

on

under

entitled

one con-

for instance,

by obtaining the Tes-

certs with an Executor,

nominal price, or

tator's effects at a

is

misapplying the Testator's

under-valuc, or by applying the

purchase of other subjects

at a fraudulent

real value to the

for his

own

in extinguishing the private debt of the

behoof, or

Executor k ,

or in any other manner contrary to the duty of

the office of Executor, such concert will involve

such fraudulent Purchaser, and render him

for the full

And

it

value

even

has been said, that

negligence

been only gross

in

there has

if

Purchaser,

the

though not direct Eraud, Legatees may

the Purchase"'.

liable

If

set aside

an Executor should release a

debt of j100, for one shilling, that would not

bind a Creditor

but in case there

is

no other

Creditor except the Executor himself,

Peacock

v.

Monk,

Ves. 131.

Brickley v. Donnington, 2 Eq.

Abr. 253. Franklin v. Ferae,
Barn. 32.
h
Crane v. Drake, 2 Vern.
21G. Ewer v. Corbet, 2 P.
"Wins. 148. Jacotnb v. Harwood, 2 Ves. 208. Dickenson
v. Lockver, 4 Ves. 42,3.
See Franklyn v. Feme,
Barn. 30, 33.
Newland v.
Champion, 1 Ves. 105. Ehnslie
'

it

would

against M'Aulay, 3 Bro. C. C.

020. Utterson v. Maire, 4 Bro.
C. C. 270. S. C. 2 Ves. Jun.
95. Doran v. Simpson, 4 Ves.

005.
k

As

in Scott v.

Tyler,

Dick. 725.
See M'Leod and Drummond, 17 Ves. 1(37.
m Scott v. Tyler, 2 Dick.
725. Hill and Simpson, 7 Ves.
'

152.

230

TQVITY- JCTUSDICTICN,

bind hitn \

If an Administrator grants a

a;

Person

Hjjsgs

Lease

to-

has notice that a sale of the Pre-

who

was required by the Parties beneficially

interested,

will be set aside

it

Residuary or general Legatees, and, as

it

seem?,

Co-Execfltors. yare never permitted, in any case,

which the Executors

the disposition

to question

have made of the Assets

and pecuniary Legatees,

but Creditors,

may

specific

follow either legal or

Jlquitahle Assets, into the hands of third persons

whom

to

fraud

Why

imputable.

is

a Residuary

such cases of Fraud, be

allowed to follow the Assets, is not very obvious *.
Though a transaction with an Executor or AdLegatee should not,

in

ministrator be suspicious, yet

there has been

if

or the Person

long possession by the Purchaser,

under.whom he

Court

takes, tlfe

will not relieve".

Fraudulent Agreements on a Marriage,

lieved against,

in.

Equity:

as

put the Party contracting

to

where one

for

Marriage

are reaffects
in

one

situation by the Articles, and puts that Party in

another, and a worse situation,

ment.

If a

Fortune paid,

received back

or a

Bond

set aside

Skr. diet.

Noel

v.

for that

Robinson,

Vern. 455.

DroUu

v.

Drohan,

1 Ball

TV-arty, 185.

and

|72.
* So*:

\'$

what Lord

M'Leod

a:id

Ves. 169, 170.

in part

this

which

privately
is

given

a
;

description are
is

the open and.

r
Andrew against Wrigley,
4 Bro. C. C. 125.
a
Palmer v. Neve, 11 Ves.
107 and see Chesterfield and
;

M'Leod and Drummond,

14 Ves. 1353, and S. C. 17 Ves.
S

in

a private Agree-

of Indemnity

Underhand Agreements of
always

is

by

F.ldon* says

Drummond,

Janscn, 2 Ves. 156.

b
See Redman v. Redman,
1 Vern. 248. quot. 2 vol Blac,
Com, 309,

FBAUO.

S3|

mur

public treaty and agreement upon Marriage

ways
Agreement

not be lessened, or any

by

any-

therefore, a Son, on his Marriage,

was

private Treaty or

Where,

infringed

have :i()00 Portion with

to

his Wile, and private! v,

without notice to his Parents (Father or Mother.)

that treated tor

the

Wife's Father

to

Portion seven years

held void
effectual,

So,

pay back .1000 of the

afterwards;

Court of Equity

in a

by being assigned

where

gave a Bond to

Marriage,

the

Bond was
and not made

this
;

to Creditors' 1 .

a Father on the marriage of his Son,

gave a Bond for

Annum,

JO per

the

private

agreement of Husband and Wife being that he

should only be called upon for

Bond being

the

Lady,
Bill to

it

was held

that the Father could not

if

his

Niece

e
.

Bond from a Daughter

Fortune, unknown to her Husband,

a Father takes a

tobem

considered

the nature of a

Brocage Bond, and will be ordered

up f

file

have this Bond delivered up, though the

entitled to a
it is

Annum,

per

given to deceive the uncle of the

Uncle made no Settlement on

So,

^100

marriage

to be delivered

Upon

the

same

Principle, not only Bonds, but

a Lease granted by a Tenant

in Tail, in consi-

deration of procuring a match, has been set aside

at the Suit of a

Bond by

Remainder-man*..
a

young

c
Lanilee v.IIannam,2 Vera.
499.
1
Turton v, Benson, 1 P.
Wow. 490.

Woman

secretly given to

e
Pitcuirn v. Oybourne,
Ves. 370.
!

Anon. 2 Eq. Abr. 1ST.

StribblehiU

2 Yern. 440.

v.

Brett,

EQUITY JURISDICTION.

232
a

Man

if

she did not marry him within a certain period

after the death of her Father,

the same effect

been

on

it

his

was a Fraud on

The

Money,

he giving a Bond to

part to marry her, has

the Parent,

who was

ig-

Bond and disapproved of the mar-

norant of the
riage.

of

and principally on the ground

set aside,

that

sum

conditioned to pay him a

fraud consists in this

that the Father

thinks his child has submitted to his

opinion of

the match, and in that opinion, makes a provision

advance her

for her to

known

in marriage,

which had he

Bond he would not have done,

of the

might have done

in

would have
therefore in fraud

such a manner

prevented the marriage:

it

or

is

as

of the Father's right of disposing of his Fortune

among his

children according to their deserts

h
.

In these cases where part of the marriage Portion is agreed to be returned, there is no Fraud be-

on the Parents
or Friends of one of them, who are deceived by

tween the contracting

settling

Lands, equal

Parties, but

Portion that appears

to the

to be given, and for that reason

such Bonds are

set aside'.

Where, however, A.
his Son,

was
ture

per

and

in his settlement

power

terwards,

on the Son, there

reserved to the

any Wife

Annum,

treated for the Marriage of

whom

Father to join-

he should marry, in ^200

paying .1000 to the Son, and af-

the Father treating about

marrying a

second Wife, the Son agrees with the second

Wife's Relations to release the ^1000, and does
* Woodhouse
Shipley,
v.
2 Atk. 535. and see on this

subject Cock v. Richards,

Ves. 429. S. C. MS.
lb. 539.
'

10

FRAUD.

but takes a private Bond from the

release

it,

Father

for the

payment of

would not

cellor

being prior

the

to

in time,

In Marriage

this

\0()0, the Chan-

set aside the

would be injurious

was

to

first

Bond, because
marriage,

be preferred

much

it

which

k
.

Contracts, the happiness

Parents and Children are so

it

233

of the

at stake, that

has been held, that whoever treats fraudulently

on such an occasion, shall not only not gain, but

even lose by it. As where upon a treaty for a

Woman not having so great a poras the Man insisted upon, prevailed upon her

marriage
tion

brother to
tion,

the

',

her have

let

^160

and gave him a Bond

to

make up

for the

her por-

repayment of

The marriage was had; and the Husband

who knew nothing of the Bond, died without
The Wife survived, and after her death,
Issue.

it.

and the death of the brother, the Defendant, his

Executor, put the Bond
tiff,

her Executor

quoery

of the

is

in suit against the Plain-

but the Bond was set aside.

put by the Reporter,

Bond

if

the condition
the

had been, that in case

Wo-

Husband she should pay it,

whether she could have been relieved but Lord
thought this would have made no
Thurlow

man

survived her

ra

difference.

In a Case where a

Widow

on the Marriage of

her Son, agreed to release her jointure, that he

might make a Settlement, and the Son privately

k
Roberts
"Wms. 66.

v.

Roberts, 3 P.

See Gale v. Lindo, 1 Vern.

475. S. C. cited by Lord Chan.
"
ajid
Wilkinson,
in Neville
1

C.54G; and see what

in Wilmot against
Woodhonse, 4 Bro. C. C. 230.
1 Bro. C.

is

said

m See Neville

v.

1 Bro. C. C. 546.

Wilkiuson,

EQUITY JURISDICTION.

31

agreed to assign a Leasehold Estate to his mother,

the Agreement of the Son was set aside as Frau-

dulent".

Awards,

aside in Equity

made

Wm. 3.
seems

and

this,

Rule of a Court of Law, under the 9th

c. 15 p but, in one case, Lord Hardwicke
;

to

When

have entertained doubts'

1
.

Award does not

have submitted to make the
Award a Rule of Court, it is

Parties of age, (for an

bind an Infant',)

submission to the
a

may be set
though the Award be

fraudulently obtained,

if

contempt of Court

to dispute the order, unless

Arbi-

partiality, corruption, or misbehaviour in the

trators can be shewn; and

denial in the
that

is

Answer

of the facts charged, and if

sufficiently done, a

will be sufficient';

of the Cause,

enough

this

to

depends upon the

but

upon the

hearing*

should be

strong

if

still,

the Evidence

Award

of the

plea

convince the Court that the Arbitrators

have been guilty of corruption,

partiality, or

behaviour, itwill effectually open the plea

Insurances fraudulently obtained,
aside; as

where

countofa

may

be set

Merchant had a doubtful

Ship, and insured

his

mis-

x\c-

Ship without

acquainting the Insurers what danger the Ship

was

in, it

was held

to be a Fraud,

"Lamkv. Hannam,2 Vern.

and the Policy

Lord Lonsdale v.

465,499.

2 Ves. Jim. 451.

1
Vern. 157. Harris v.
Mitchell, 2 Vern. 485. Burton
v. Knight, 2 Vern. 514. Tittenson v. Peat, 3 Atk. 529.

q
Hampshire
2 Atk. 155.

Chicot v. Lequesne, 2 Ves.

315. Champion against Winham, Ambl. 245.

s
*

Littledale,

v.

Young,

1 Ch. Cas. 279.

Mitford's Pleadings, 209.

Lingoodv.Croucher,2Atk.

396. and S. C. p. 506.

TRAVD.

23. J

up with Costs, but

the Premium to be paid back and allowed out oi

was ordered
the Costs v

to

be delivered

So, a Policy of Insurance for insuring a

gained by Fraud, has been set aside with

both

Law

at

received on

and

Equity, and

in

Policy

the

directed

Premium

the
to

Life,

Costs,

go

in

part

of Costs

Other Frauds on Marriage besides those already

noticed, are redressed in Equity.

unmarried,

may

perty in any

whom

A Woman, while

dispose of and convey her pro-

manner she

pleases

and a Husband

she afterwards marries, without any Settle-

ment made by him,

or any inquiry

ing her fortune, cannot

concern-

impeach a conveyance,

which she has made of her property for her own

separate use
provided the conveyance was not
;

attended with such circumstances as prove the

same
So,

to be fraudulent".
if

Feme

Sole, with the privity of her in-

tended Husband conveys, before Marriage, a term

for years in trust for herself, it is

band's power

but

if

Feme

out of her Hus-

does

secretly,

on the

eve of Marriage, without the knowledge of her Husband, convey a

this

Term

for years in

if

Woman

De

Costa

v.

Scandret,

P.

Wins. 170.

Whittingham

v.

burgh, 2 Vera. 206.

Ch. 20.
*

See Bowes

v.

But

previously to Marriage con-

veys her Property without

"

for herself,

does not exclude the Husband's right >'.

though,

Trust

Thorn-

S. C. Prec.

Strathmore,

the

privity of the

House of Lords, 6 Bro. P. C.

430. Toml. Edit. S. C. 2 Bro.

G.

!345.

Draper's Case. 2 Freem.

29,30. Pitt v. Hunt, 1 Vera,
IS, S, C. 2 Ch. Cai. 73.
*

EQUITY JURISDICTION.

235

intended Husband,
fraud

it

will be considered

as a

; yet where the Deed had been made

in

contemplation of a Marriage with another Person,

and with the consent of that person, it was held
to be

unimpeachable

And where

Widow

previous to the second

made a
HusIssue by her
b
but a power
be valid

Marriage, and to the Treaty for the same,

suitable provision for the

first

band, this was held to

reserved to herself to dispose of

the remainder

on herself and Child, after the

decease of herself and child, was determined to

of a

Term

be void

settled

c
.

Bonds, to be paid

such a

Man

d
;

if

the obligor should marry

Widow,

or being a

if

she should

marry again , have been ordered to be delivered

up to be cancelled as being contrary to the
nature and design of Marriage, which ought to
6

proceed from

free

and not from

choice,

any

compulsion.
If a verdict has been obtained

of Equity will give relief

by Fraud, a Court

f
.

Law be

obtained against
Judgment at
conscience, a Court of Equity will decree the
So,

if

1
Cotton v. King, 2 P. Wms.
360. Poulson v. Wellington,

P. Wms. 535. Carleton v.

Earl of Dorset, 2 Vera. 17.
1
Strathmore v. Bowes, 2 Bro.
C. C. 345. Decree affirmed in
the House of Lords, 3d March
1789. S. C. 1 Ves. Jun. 28.

Edmonds

against Donnington mentioned in Carleton v. Earl of Dorset, 2 Vern.

contra.

17.

b
Cotton v. King, 3 P. Wms.
357,674. Hunt v. Matthews,
1 Vera. 408.
c

Blithe' s

Case,

2 Freem.

91 ,2.
d

Key

v.

Bradshaw, 2 Vern.

102.
c

Baker

v.

White, 2 Vern.

215.
f
Batemanv. Willoe,
and Lefr. p. 205.

1 Sch.

rp.AUD.

237

Party to acknowledge satisfaction on that Judg-

ment, though he has received nothing*.

Decree obtained by Fraud,

not by rehearing or appeal

may

be set aside

but upon an original

*,

the nature of a Hill of Review'.

Bill in

It

is

said, indeed, that a Decree, or Interlocutory order,

may be set aside on Petition k

Lunacy may be set aside by Bill, if

obtained by Fraud,

An

Order

in

obtained by Fraud
So,

Probate be obtained of a Will procured

if

by Fraud, the Court

oblige the Party so

will

obtaining Probate, to consent to a revocation of

the same

01
.

The Purchase
by a

of an Estate in the West India;

Creditor, under his

own execution, and which

under the circumstances appeared to be a sham

Sale

and without

and

competition,

with a view to get the Estate

contrived

at an under-value,

has been set aside*; but unless Fraud

is

proved, a

Judicial Sale, had under the Process and Judg-

ment of

Court having a competent Jurisdiction

cannot beset aside

b
.

In a case where a decree that a Will was well

proved, had

which
Court of Chan-

been obtained by consent,

afterwards, in another Suit in the

k

Barnsk'v v. Powell, 1 Ves.

289. See diet. Mitchell v. Hapris, 2 Ves. Jun. 185.
h
Gee,
Bradish against

Sheldon v.
Fort<
Aland, 3 P. Wins, 111.

Ambl.229.

Mussell against Morgan,

3 Bro. C. C. 74 ; and see Rnohxnond v. Tayleur, 1 P. Wins.
734. l.oydV. Mansell, 2 P.
Wms. 73. Barnsley v. Powell,
1 Ves. 120.
1

'

lb.

ra

Barnsley

and

Powell,

Ves. 290.

Lord Cranstown v. John*

3 Ves. 170. and S. C.
5 Ves. 277. and see White v.
ston,

Hall,
b

321,

12 Ves. 321.

White

v.

Hall,

12 Ves.

EQUITY JURISDICTION".

23S

eery was on an Issue, proved to be a forged Will,

the Chancellor restrained the setting Up of that

r

decree

So

Dower

if

be fraudulently or partially as-

signed by the Sheriff, a Court of Equity will

relieve d

Deeds procured from a drunken Man, will not,

Lord Coke obseems, be relieved against.
serves in regard to Inebriation, " Although he
it

who

is

yet

his

drunk,

is for

the time non compos mentis,

drunkenness

extenuate

his

actor offence, nor turn to his avail; but

it is

great offence

in

does not

itself,

and therefore aggra-

and doth not derogate from

vates his offence,

the act which he did during that time

as well in cases

touching his

goods, or any other thing

And

Man

his lands, his

that concerns

him e /*

is

not any reason to relieve

against any deed or agreement gained from

when

him,

and that

was the doctrine of Sir J. Jekyll\ that the

it

having been in drink,

a

life,

in

those circumstances,

unless

the

Party was drawn into drink through the manage-

him who gained the Deed.

So, too, the opinion of Lord Ilardwiche on this
subject appears to have been, that the Drunkenness of one of the parties was not sufficient to set
ment

or contrivance of

aside an agreement, unless

was taken

and therefore

some

unfair advantage

in the case before

him,

the agreement being to settle disputes in a family,

c

Barnsley

v.

Powell,

Ves.

287.
d

Hoby

218.

Sneyd

S.
v.

v.

Hoby,

Vern.

2 Ch. Cas. 160.

Sneyd, 1 Atlc. 442.
('.

4 Co. 125.
'Johnson v. Medlicott, 3. P.
Wins. p. 130. n. a. and see
Cook v. Clayworth,18Ves. 12,

1-IMUD.
a

reasonable, and

:ve

no unfair advantage appearing

he refused to set

been taken,

complaining of

ugh the party

239

when he executed

it

was drunk

it

K
.

Decisions, by such

Lawyers, are

Law

as

successive

Judges, though the reasons

ma) not be

satisfactory.

for

to

them

may, however, be obLaw, Persons in a state

It

served, that by the Scotch

o'i

aside,

it

Drunkenness, and consequently deprived

absolute.

of the exercise of reason,

cannot oblige themselves;

but a lesser deg-ce of drunkenness, which only darkens reason, has not the effect of annulling a contract
for

'.

it

Thedistinctionthustaken,seems reasonable;
never can be said that a Person

drunk, to use the Scotish term,

lias

absolute/;/

that freedom of

mind, generally esteemed necessary

to a deliberate

consent to a contract; the reasoning faculty

At Law

time deposed.

noil est factum the

will a

Court of Equity be

frailty

seems

with a Man,

who

of deliberation

to
is

and

evidence

know what he did'.

that he

It

in

bond when he was

sign the

drunk

did not

for a

has been held that upon

it

Defendant may give

made him

that they

is

less

indulgent to

be a Fraud to make

so

And
human

contract

so drunk as to be incapable
if so.

contracts of such

the

Persons would, one might think, be relievablein

Cases of glaring injustice,

Equity.

may

easily be

imagined.
Ifcincccius k

Puffendor(j'\ and Pothler m

Cory and Cory, 1 Ves. p.

11). hut Lord Eldou has
ohserved, " it is a very strong
case." vStoeklcy
38 Ves. :30, :ji.
u

Krsk. Lust.

*Cok

t.

v.

all

I\ 172. S.'C. referred to in

in
n.

Selw. Abridgment,

B. 1. Ch. 14. s. 392.

R. 1. Ch. 4. s. 6.
m Traite dea
Obligations, P,

447.

Mo!. I. ins, ijull. N.

MS.
49.3,

Stockier,

'

p.

agree

1.

Ch.

1.

9.

1. art. 4.

equity Jurisdiction.

240

inconsidering contracts, under such circumstances,

as invalid, and the admirable

thus expresses himself

of Equity,

drunkenness
yet as

is

own

procuring,

to his avail, either to derogate

lessen his
itself,

punishment

and

but

it

the time

shall not turn

from his act or to

a great offence in

it is

this holds as well to his life, his lands,

ever, Equity, as

it

seems, will relieve, in this case,

were caused by the Fraud or con-

especially if it

trivance of the other party, and he

drunk

How-

any thing concerning him*

his goods, or

sively

"Although

a kind of insanity for

of his

it is

Author of the Treatise

that

he

is

is

so eXces_

utterly deprived of the

use of reason or understanding

for

it

can by no

means be a serious and deliberate consent ."

Conveyances in Fraud of the Law are relieved
for as the Court acts to protect Individ
against
;

duals in cases of Fraud, so

a fraud

upon the Law

it

will act to prevent

itself.

Devisee, therefore,

bound

is

to

answer

charge by the Heir that the Devise was upon a

Secret Trusty or undertaking for a charitable pur-

pose, contrary to the Statute of

It is not,

the

Law

Mortmain

p.

however, considered as a Fraud on

to take

of defeating an

out a commission

Execution'

for the

or after a

obtained and before execution to convey

Party's effects

by way of mortgage

1 Vol. Treatise of Equity,

edited by Fonbl. p. 07.
p 9 Geo. 2. c. 36.
Striekland v. Aldridge, 9 Ves. 51(3.
C. MS. Mucklestone v.
S.
Browne,
Ves. 52. S. C. MS.

r
.

purpose

Judgment
all

Even

the
after

and see on this subject, Adlingtonand Cann, 3 Atk. 141.

Exparte Edmonson, 7 Ves.
303.
r

King

192.

v.

Marissal, 3 Atk.

frRAUD.

211

may

a Fieri facias, the Debtor

assign

a Legacy*

bona Jide for a valuable consideration

and
without notice, and the Assignment will be good
against the Creditor

3
.

Bond given for Silks taken Up in order to

raise Money, has been ordered to be deli-

sell to

vered up, upon payment of the

Money

Interest

So,

really raised,

method under the mask of trading,

this being a

of lending

Sum

at

an

extraordinary

of

rate

a beneficial lease gFanted

the

at

same time with a loan of Money by Lessee

to

Lessor, has been set aside, as giving to the lender

Money

a profit on the
terest

lent,

beyond

legal

In-

There has long been a struggle between Courts

who

of Equity, and persons

endeavour
Interest,

to find

and

to

have made

out schemes to get exorbitant

evade the Statutes of Usury

the Court, very wisely, hath never laid

beyond which

general rule

their

it

it

and

down any

will not go, lest

other means of avoiding the Equity of the Court

should be found out: they, therefore, always determine upon the particular circumstances of each
case

and wherever they have found the

tincture of fraud in any of these

gains, relief hath always

may be

Bill

filed

least

oppressive bar-

been given*.

to have a

Bond

delivered

up, and, the principal being discharged, to have

fedgell v.

Hay wood, 3 Atk.

367.
;

v.

Barker against Vansommarj

1 Bro.

I.eiV. 115; and Be$ Drew

Power, ib. p. 182. MoUoj v.
Irvin, 1 Scho. and Lefr. 31(K
w
Luwlev v. llooptr, 3 Atk,
279.

aud

l.\

Browne

VOL.

1-

U!.
v.

Odea,

Sch.

EQUITY JURISDICTION.

242

what has been paid over and above

repaid
Interest

It

might be different

legal

if

the Securities

lost at

Gaming and

had been delivered up*.

Money

In the Case of
paid, the Court,

the Plaintiff in

seems, would not grant

it

Other instances, where the Court has

Acts

to prevent

mentioned
*300

as

in

the Seal

interfered

Fraud of the Law, may be

where A. granted an Annuity of

a year to

Borough, and

relief,

Equity being particeps criminis

after his

Son

his

qualify

to sit

for

Son was chosen, he tore off

but the Agreement was established,

it

being an Imposition on the Public'.

So, where a Father sought by Bill, a Re-conveyance from his Son, of an Estate given to him
as a

him

qualification to enable

to sit in Parlia-

ment, the purpose being answered, the

dismissed with Costs \
mistake, and repented of

it

was

Party found his

If the

before he

his intention into execution,

Bill

had carried

and the Party did not

go into Parliament, the determination would be

different

So

13
.

if

Father, a Citizen,

makes a

voluntary conveyance to a Child to enable himself

to

so

swear he
as to

is

not worth

Sum

the

avoid being chosen

of ,1.5,000,

Sheriff, the

Child

would be entitled to the Estate

But, it seems,
a Conveyance of an Estate to qualify as a Game..
.

Keeper can be recovered back'

Bosanquetand Dashwood,

For. 37. S. C:
x
lb. 41.

MS.

y lb.
2

Anon. MSS.

See what Lord Eldon says,

in Curtis and
Perry, 6 Ves.
747. and Lord Hardwicke in
*

but there were

Birch against Blagrave,

Ambl.

265,6.'
b

against

Blagrave,

against

Blagrave,

Birch

Ambl. 266.
c

Birch

Ambl. 265, 6.
d
See Bridgman
2 Ves. 627,

v.

Green,

FRAUD.

213

circumstances of gross fraud in the case alluded

to,

which may distinguish

it.

Conveyances made of Estates in Trust, in order

them from Forfeitures for Treason or
Felony % have been set aside as against the Crown,
to screen

though good
So,

if

A. but

f
.

an Estate in Fee, or in Tail, be given to

in case

Term

as against the Party

he commits Treason within such

of Years,

is

limited over, this

clause, and will not prevent a Forfeiture

There

is

a very strong

a void

is
5

case on the subject of

Fraud on the Law, determined by the highest

been holden that Parties should

authority.

It has

be

an additional

liable to

duty, though the

imposing that duty had not

in

fact

Act

passed, the

intention of the Legislature to impose

it,

being-

publicly and sufficiently known, by means of the

House of Commons'
The
House of Commons, might ap-

printed votes of the

intention of the

pear from a vote of that House, but not the intention of the Legislature.
It is

now

usual to

make Revenue Laws

degree

retrospective,

nature,

which

if

avoid evasions

to

in

some

of this

not chargeable as a fraud on the

Revenue, are greatly injurious to

it'.

Frauds on Covenants are relieved against.

If, for

'

Young

instance, a Father covenant

v.

Peachy, 2 Atk.

258. The case of Fletcher v.

Kobinson,
Prec.
Ch. 250.
contra, was over ruled in Chaplin v. Chaplin, 3 P. Wms.233.
f
See Duke of Bedford v.
Coke,2Ves. 117.

Carte

v.

on

his

Da ugh-

Carte, 3 Atk. 180.

S. C. Auibl. 32.
h
and
Vicars
Attorney
General, 6 Bio. C. ft 491/
Toinl. Edition.

R 2

'

lb. note

by Editor.

EQUITY JURISDlCriO>.

214
tcr's

Marriage to leave her

death a

at his

and

full

equal share of his Personal Estate with his Son,

and afterwards

Funds

transfers his Personal Estate in the

name, who verbally promised

into his Son's

to pay the Father the Dividends for his

Covenants of

this nature,

are

this

life,

will be set aside as a Fraud on the Covenant

by no means cen-

They do not confine or restrict the

He may alter the nature of
Father's Powers.
or he may
his property from personal to real
surable.

give scope to projects, or indulge in a free and un-

But he

limited expence.

more

tain

is

not allowed to enter-

partial inclinations

and dispositions

towards one Child before another.

one Child

lity to

If his partia-

greater than to another,

is

he determines to make a difference

such Child, he must do

and by an unqualified

Right and

He must not

surrendering

exercise his

to take effect, not against his

is

but only
cease
If

at a

time

all

his

own

must give out and out.

power by an Act which

lie

Interest,

favor of

in

directly, absolutely,

it

gift,

and

when

his

own

own

Interest,

Interest

will

k
.

undue

influence

Court of Equity

be used to obtain a Deed, a

will set

it

aside

as if a Parent

abuses his authority over his Child, and obtains

from

it

Conveyance.

An Act

done out of a

Jones v. Martin, 6 Bro.

F. C. l-'37. and 8 vol. p. 242.
reversing decree, in Exchequer,
3 Anstr. 882. See a Note of the
Chancellor's Argument in this
1

fear

of displeasing a

'ase in the House of Lords,

5 Ves. 266. n.a.
k
Jones and Martin in House

of Lords, 5 Ves. 268, in note.

FUAUD.
Father or Mother,

not that sort of fear which

is

Contract; hut

vitiates a

Q45

a Person having ano-

if

ther under his authority

employs

treatment,

ill

or menaces, to procure a Contract, the Contract

under such circumstances, would,

seems, be

it

void; but Lord HardmcJa was of opinion, that

Son Tenant

if a

Tail and a Father Tenant fo

in

on something

Life, a^ree

younger Children,

for

of the

the benefit

and afterwards the Son com-

plains of paternal authority being exerted, though

might be something of that

there

Agreement be

if

the

reasonable, the Court will not set

aside

it

yet

sort,

Transactions of this sort between Parent and

Child will be looked

with jealousy, and so that

at

the Father shall not take an improper advantage

of his Authority

always be made

but

*;

in tune,

which

Marriage, under

moment

it is

mainder,

Tenant

for Life

the Estate, the

for Life,
it

Age

of

in a

Cory

v.

chant, I

on

Tom.

Tory, 1 Ves,

JO

1.

C. C. 300. see
subject, Pothier,

17.

and Domat's Civ.

Vol. 243.
ter, 5 Ves, 570,

L.

his

Father

for the

purpose

Father, and resettling

to his first

held, that, whatever

15ro.
tliis

the

Son taking back oulv an Estate

and see Kinchaot against Kinalso

is

in Tail in re-

joined

Recovery,

with remainder

was

immediately,

Tenant

a Son,

of raising .3000 for the

Father

celebrated, persons unborn, acquire

As where
when just

a right".

&c.

after the

and the Son has entered into an Act by

dead,
his

not

must

complaint

the

Brown

v.

Car-

and other Sons,

Equity he might

m Young

v.

Peachy, 2 Atk.

254.
'

Bower

877;

and

Cocking

v.

see

Carter,
1

v. Pratt.

Ves.

5 Ves.
401;

EQUITY JURISDICTION".

24(3

have had against that Settlement was

Marriage and acquiescence
his Father

lost

his

death of

after the

till

by

If a Son, in plentiful circumstances, gives his

Father a Bond to pay him an Annuity for his Life,

and

it is

good

done

but

if

freely

Son who
a Conveyance which
draws

and without coercion,

who

a Father

in a

is

Tenant

is

Tenant

is

in Tail to join in

Remainder,

will destroy his

upon very slender evidence

the Court

it

for Life

will relieve

Son\

the

If a

ment

Man

r
,

Warrant of Attorney to confess a Judgor if a Compromise, be obtained from a

Gaol,

in

will not,

it

seems, be good,

it

unless he has proper advice and assistance

5
;

as if

a Counsel be present*.

Frauds on Powers
in Equity.

A Party,

Some

are often the subject of Relief

of them have been adverted to.

for instance, will

execute a Power

for his

own

not be allowed to
benefit

as

where

Lord Sandwich having a Power of appointment,

and thinking one of his Children was in a consumption, appointed

with a

in favor of that child,

view, as the Court supposed, to take the chance of

getting the

But

Money

as administrator of the

Child

Browne

v.

Carter,

5 Ves.

Blackborn

Wms.
q

v.

Edgley, 1 P.

607.

Heron

v.

Heron,

2 Atk.

161.

Roy v. Duke
2 Atk, 193,
1

'

Hinton

v.

Power

Hinton, 2 Ves,

Sen. 635.

SG2.
p

the Court will not act against a Title under

a Power, upon a mere suspicion % that the

of Beaufort,

Roy

v.

Duke

of Beaufort,

2 Atk. 193.
v
See what is said in Mac
Queen v. Furquhar, 11 Ves,
479.

*RAUD.

247

had been fraudulently exercised"": as where there

Was a Purchase under the Execution of a Power of

Appointment by a Father, subject to Estates for

all
Life in him and his Wife, in favor of their Son
three joining and receiving the Money, the fair
value, which is presumed to be received according
:

to their Interests in the Estate, and the Purchaser

not bound

to see to

the

transaction appearing

fair

ment and the

abstract,

it

and the

application,

both upon the Instru-

was held

that the Pur-

chaser could not object to the Title on the ground

of a fraudulent execution of the Power".

Though

there be a

raise a portion for a

Power

in

Settlement to

younger Child,

at such time as

cannot direct

the Parent should direct, the Parent

be raised

to

it

at fourteen

Such

nature of the Power.

the Parent to raise

be necessary

It

for this

it

against the

Power only enables

own

in his

is

Life, if

would be proper so

to

it

should

do upon

the Daughter's Marriage, or for several other pur-

poses

The Cases relative

powers, have created

to Illusory Appointments, under

much difficulty

mindsof

in the

Judges, and great contrariety of opinion. At Law,

if

some

pointment

is

effectual"; but in

trine is very different.

ment,

is

that, if a

There, an Illusory Appoint-

considered as nfi aud*; and

it is

there held

Person has a power of appointment among

"lb. 11 Ves. 467.

*

ApEquity, the Doc-

share, hoiccver small, be allotted, the

lb.

y Lord Iliiiehinbrokeiigiiinst
Seymour, lBro.C.C. 3D5.

Vanderzee

v.

Aclom,

Ves. 785.
a
Boyle
borough,

v.
1

Bishop of PeterVes.Jun.310.

EQUITY JURISDICTION.

48

Children, or other objects, in such shares, manner,

and form, and

must make

such times as he thinks

at

substantial, reasonable, and not

fair,

an illusory appointment
will,

he

fit,

and of

the Court

this^

on a Billfiled for that purpose, form

Judg-

its

This doctrine, reluctantly adhered to in

ment*.

conformity to Precedents, seems to have overturn-

ed the Principle

laid

down

an illusory appointment, has surrendered

is

discretionary authority on the subject, and has

all

determining what

said, in

as far as

case, is not

any

Sum

whole

is

illusory, that

it

bound by Authority, but no

it is

to

Sum

where the

or in other words, that

in

difficulty of determining

where the Court, from the

what

in several other cases

will

farther

appointed

so small in proportion to the

be appointed, as

in

former cases

where the Proportion given has been held

illusory, the

appointment

It is very clear that

appoint

to

Power

is

allotted to

"

words,

is

wherever a Power

is

given,

and among several Persons, the

to

not well executed, unless some part

each

d
;

but

to be disposed

if

Power be

the

is

these

in

of amongst her Children

may

give

it

to

one

c
.

Baxv. Whitbread, 10 Ves.

22; and see particularly Vanderzee v. iclom, 4 Ves. 784,
5. Butcher v. Butcher, on
appeal, 18 Ves. 79. etc. Colman v. Seymour, 1 Ves. 211.
c
Butcher v. Butcher, 9 Ves.

383,

be

to

valid.

as she shall think proper," she

Child

go

JHoccata

v.

Lousada4

12 Ves. 123. and Dyke

v.

Syl-

vester,ib. 126.
d

Menzie against Walker,

Vanderzee v. Aclotn,

For. ?2.

4 Ves. 784.
e

85G.

Kemp

v.

Kemp, 5

Ves.

IIMUD.
If an

119

appointment be determined

and therefore proper

be illusory,

to

to be rectified,

the Court,

it

has been

holden, cannot do otherwise than by

decreeing

an ajual distribution f

property as

reason

sufficient

Sum

is

given,

it

of the Appointment, a

face

why

has appeared,

has been

nominal

held to be effective

and Lord A Ivan ley was of opinion, that

as

Parent and Child, a sufficient reason

sum might be proved

Power of Appointment be

such a

Power 5

of execution of the

in default

Where, upon the

and giving the

11

between

tor

giving

'.

If a

tively executed, the

part defec-

in

whole of the Fund

will not

be distributable, as in default of appointment;

much

but so

will stand,

is

well appointed

and the remainder divided

appointment

fault of
It

Fund which

of the

that

an appointment

cannot be made to a deceased Child

if

it

de-

has been long settled

And

as in

appears to be universally admitted that

under a Power of Appointment among Chil-

dren, a substantial share

may be by

it

times

in
.

different

power,

Gibson and Kinven,

07. last edition,

v.

to each Child,

Instruments, at different

for instance, of appointing a

Vein.

and see Spen-

Spencer, 5 Ves. 302.

Pocklington and Bayne, 1
Bro. C. C. 450.
b
Bristowe and Ward, 2Ves.
330. Long and Long, 5 Ves.
448 and see Kemp v. Kemp,
5 Ves. 859. Boyle v. Bishop
of Peterborough, 1 Ves. Jun.

cer

given

is

310. Spencer and Spencer,

5 Ves. 80S.
lb. 5 Ves. 368.
k
Bristow v. Warde, 2 Ves.
350. Wilson v. Pijjott, in, 857.
Routledge v. Do; nl, ib. 360.

'

Mad

lison

v.

Ves. 57. Butcher

18 Ves. 91.

"See Wilson
2 Ves. 354.

Andrew.
v.

v.

Butcher,
Pig

EQUITY JURISDICTION.

250

Fee may be executed

time to pass an Estate

several times

at

at

one

and the Fee

'for Life,

at

another".

In some of the Cases,

where there

that

Daughters
think

very

must be equally

but that

now

to divide

is

not

Sum

allowed

But

Rule of the

the

good reason does not appear,

small

among

good reason

unless a

under words of that

But,

Court.

power

such proportions as the Wife should

in

fit, it

appeared

is

has been determined

it

if

some

for giving a

very

sort,

such a disposition will not be

to one,

p.

the Person having the execution of the

if

Power has provided

way, that

is

for the

sufficient,

Person in some other

and the appointment will

not be considered as illusory q

U the words

of the power be,

iC

then to be dis-

posed of amongst her children, as she shall think

proper ;"

ham

a series of Judges, from

the present time

to

amount

have held that they

to a gift to all the objects

clusion of one

is

arc,

v.

Smith, 1 Vern.

85.
*

Astry

v.

Astry, Prec.

Ch.

256.

Kemp

v.

and

see

Kemp, 5 Ves.
Gibson v. Kinven, 1 Vein. 67. and Maddip

859

and the ex-

son v. Andrew, 1 Ves. 59.

SeeBurrell v. Burrelh Arubl.
C60.

8
.

If the

" to such of her Chil-

dren as she shall think proper/'

Borcy

an undue execution

words of the Power

Lord Notting-

that

would give

' Kemp
v. Kemp,
5 Ves.
861. Bristow v. Warde, 2 Ves.
Jun. 336.
'
See Gibson v. Kinven, 1
Vern. 66. Menzey v. Walker,
For. 72. Maddison v. Andrew,
1 Ves. 57. Alexander v. Alexander, 2 Ves. 640.
s

Kemp

656,7.

v.

Kemp, 5

Ves.

FRAUD.

51

a latitude to appoint to one only

words are, " to

amongst

all

" amongst

all or

such of

shew

my

Children

,"

or,

" to and

Child or Children""

such

such of his Children *,"

or,

or,

to

Children'," they have been held to

Power

a manifest intention to give a

anyone

point to

to ap-

Child, that should answer the

description

So, where the

one or more of his Children/*

" to any of his

or,

Power

among

of appointing

Children, will

include Children by any Marriage*.

Power

to

make a

Jointure,

fraudulently

if

As where

exercised, will be relieved against.

Jointure

to be

is

made,

in

proportion to the Por-

tion to be received, the Transaction must be

fair,

bona fide, without fraud and collusion, and therefore if it

a nominal, not a real portion, that will

is

not do.

often happens a

It

Man

with a small Portion, and he or

vance

Money

and take

it

to

make up

back; but that

is

is

v.

Thomas, 2

Vern. 513.
v

Tomlinson

Wms.

1 P.

v.

Dighton,

149.

Wollen

v.

Tanner, 5 Ves.

218.
x

Macey

389,

it is
;

Shurmer,

Atk,

the Wife

settled to her

but wherever

in

the

usual

y Leife
v. Saltingstone, in
C. P. 1 Mod. 189, 2 Lev. 104,
Carter 232.
Kemp v. Kemp, 5 Ves.

857.

Butcher
y,

if

stipulated to be applied

and reasonable manner,

in a proper

Thomas

is

Friends ad-

So

a fraud.

not allowable

the Portion of the Wife

his

Lady

that a nominal portion,

has the requisite Portion, and

separate use, that

marries a

Ves. 91.

v.

Butcher,

IS

EQUITY JURISDICTION,

lb*

way

of settling for the benefit of the family, that

will be considered as a portion received

*.

A Jointure of a " clear yearly Sum" means clear

at the
it is

time of making the Jointure, and not that

to be so during its

continuance

The

term,

clear, is

adjudged to mean, clear of Incumbrances,

and

other charges which by the course and

all

usage of the

Country,

in

which the Lands

ought be borne by the Tenant

Land-Tax and

all

borne by the Landlord

Country ought

a variety

which have been considered

;

be

to

The Books abound with

c. 18. s. 17.

but subject to the

other outgoings, which accord-

ing to such course of the

Custom of London

lie,

as a

of Cases,

fraud on the

but the Statute of

11

Geo.

I.

having enabled Freemen of London,

" to give, devise, will and dispose" of their Personal Estates, " as they shall think

those cases are

now

fit,"

most of

of no importance.

Fraud occasioned by Preventing

the execution

As

Deeds, will be relieved against in Equity.

where

Recovery was prevented by

of

Person,

with a view that the Estate should devolve upon

another, with

whom

Thurlow considered

it

any one should hold a

he was

See

benefit,

Earl of Tyrconel v.
of Ancaster, 2 Ves.

501, 2,
c

lb. 502.

lb. 504, 5.

Lord

as against conscience, that

through the fraud of another

Duke

connected,

which he derived

Q
.

e
Huguenin v. Baseley, 14
Ves. 290. see also 289 and
see Mestaer v. Gillespie, 11
Yes. 6-38. Prec. Ch. 393.
;

FRAU0.

253

has been doubted whether on the Sale of a

It

Ship, the want of an Indorsement upon the Certifias required

cate,

by the Register Acts f, though

occasioned by Fraud, can be remedied

in

so imperative are the words of the Acts

Where an Heir
a Testator

him

it

trouble,

Equity
.

apparent*, or Devisee, prevents

from charging a Legacy, by

was unnecessary
and that

taking has been

to

enforced in

himself that

give

should be paid

it

telling

such under-

Equity

';

but

if

the

promise had been made, by a person not interested, or not solely interested,

ent

it

would be

differ-

'.

With
able,

regard to Fraudulent Devises,

that before the Statute 3

bond and other specialty

did

it is

W. and M.

observc.

14.

Creditors, whose debts

not immediately affect the Lands of their

Debtors, were liable to be defrauded either by

their

Debtor devising

Lands, or by the

his

nation of the Heir before

brought against him

Statute declares
tations,

all

Ves. 0-21. 8. C.

c.

v.

GO.

to obviate these frauds, the

and appointments of

and

Gillespie,

MS. and

any action could be

Wills and Testaments, limi-

dispositions,

f
20 Geo. 3.
34 Geo. 3. c. 08.
e See
Mestaer

1 1

alie-

see

Speldt v. l.echmere, 13 Ves.

588.
h
See Chamberlaine v. Chamberlaine, 2 Preem. 'M.
Mestaer v. Gillespie, 11
Ves. 038; s<?e als,o Strickland

v.

real

Aldridge, 9 Ves. 519; and

see Ruck v. Kennegal, 1 Ves.

123. Barrough v. Greenougb,
3 Ves. 152. Ruck v. kennegal,
Ainbl. 07; see Sellack and
Harris, Vin. Abr.

tit.

Contract

and Agreement, (H.) Cas. 31.

k
See Whitton v, Russell*
1

Atk, 449.

EQUITY JURISDICTION.

254
Estates,

power

by Tenants

to dispose

by Will, fraudulent and void,

as against Creditors

and

that

by bond or other

such Creditors may

tions jointly against the

that

if

shall

simple, or having

fee

in

specialties

maintain their Ac-

Heir and Devisee

and

the Heir alien before Action brought, he

be liable to the value of the Land, and that

the Devisee shall be chargeable in the same man-

ner as the Heir would have been

By

descended.
tor

in

is

if

the Lands had

Bond

these Provisions the

Credi-

some degree protected against the Fraud

of his Debtor, or his Heir; but the statute having

expressly excepted Devises for payment of Debts,

Portions in pursuance

or for raising Children's

of any Agreement or Contract

riage

bond and other

demands do
still liable

Debtor

in their

to

made

before Mar-

whose

specialty Creditors,

nature affect the Land, are

be prejudiced by such right of their

Estate

to devise his real

vise, subject to the

payment of

for if

he de-

debts, his simple

contract Creditors will be entitled to be paid pari

passu, with such

And
by

bond

even Creditors whose demands are barred

m
the Statute of Limitations, have been let in .

If the Heir taking

or other specialty Creditors

by Descent,

See Fonbl. Eq. 1 Vol. 282,

who

Woolston
croft v. Long, 1 Ch. Cas. 32. 3
Ch. Rep. 7. Hixom v. Witham,
1 Ch. Ca. 248. Anon. 2 Ch.

3. in note,

cites

Ca. 54. Girling v. Lee, 1 Vern.

63. Child v. Stephens, 1 Vern.

or the Devisee

101. Sawley v. Gower, 2Vern.

61. Wilson v. Fielding, 2 Vern.

763.
m See Fonbl. Eq. 1 Vol. 283.
in note,

who

cites

Gofton

2 Vern. 141.
lb. note by Editor.

Mill,

v.

FRAUD.
alienate the Estate to a bonajiih Purchaser, they

themselves remain personally responsible, but the

Purchasers are not liable".
Before

the Statute,

if

vised his Estates for the

all Creditors,

whether

the

payment of

by

specialty

contract, were pari passu

benefit of the devise

";

Testator

had de-

his debts,

or simple

allowed to take the

for as the

Money

in those

cases never reached the hands of the Executors,

no Action

and the Creditor was obliged to

apply to a Court of Equity for Satisfaction
lay,

whereupon Equity not being

tied

down

to

the

Rule of Law, introduced a new method of administration

and seeing the Testator had made

no distinction between the difference of Securities

given for the payment of debts, the Court conceived that the Testator meant to do equal justice .to

all

his

Creditors

and the Statute of

11

Fraudulent Devises was supposed to be an approbation of Equitable assets, and after that Statute,

when

a devise was

made

for

payment of debts,

all

the Creditors, were, as before the Statute, allow-

ed to avail themselves of the Devise, and share

the Estate, pari passu, as equitable Assets'

As we shall have

occasion to consider the im-

portant doctrine as to Assets,

n
Matthews v. Jones,
2
Anstr. 506.
Vid. Woolston croft
v.
I.onr,Ch. Ca. 32. Anon. 2Ch,

Ca.54.

somewhat

at length.

1 Bro. C. C. 139. in n.
See the able judgment in
Silk and Prime, 1 Bro. C. C.
139. in note; S. C. 1 Dick.
384.
q

Equity jurisdiction.

jtf

Work,

in a future part of this

Subject will

this

not further be considered here.

It is laid

down as a maxim,

another to commit a Fraud,

consequences'1

As

Party enabling

that, a
is

answerable for the

a corollary from this doctrine,

was the old notion of the Court,

it

Mortgagee,

who

that a second

has the Title Deeds, without notice

of any prior incumbrance, should be preferred

because,

if

b
j

Mortgagee lends money without tak-

ing the Title Deeds, he enables the Mortgagor to

commit a Fraud c but

;

this position

has in more

recent cases been overruled, and the doctrine

is,

that the

now

mere circumstance of parting with

the Title Deeds, unless there

is

Fraud, Conceal-

ment, or some such purpose, or some concurrence

such purpose, or that gross negligence, which

in

amounts

to evidence of a

fraudulent intention*

not of itself a sufficient ground to postpone the

is

first

Mortgagee

So,

if

d
.

a Trustee permits Title

Deeds

to

go out

of his Possession, for the purpose of Fraud, and

intending to defraud one person, defrauds another,
relief

may be

obtained against him

r
.

where a Mortgagee was present whilst the

Mortgagor was in Treaty for his Son's Marriage,
So,

*Vid Bacon's Max. Max. 1(5.

Vid.Mocat.tov. Murgatroyd,
1 P. Wins. 894. Head v. Ej^erb

Wms. 281.
Vid. what J.Burnett soys
Ryall v. Rowles, 1 Ves. Sen.
300. 1 Atk. 168 ; and see what
Justice Buller says in Goodtitle v. Morgan, 1 T. R. 702.
See Peter V. Russell,
ton, 3 P.
c

2 Vern. 726. Towle v. Rand,

2 Bro. C. C. 050. Plumb v.
Fluit, 2 Ailstr. 432. and par^
ticularly in Evans v. Bicknell,
Ves. 190; see also Burnett
v. Weston, 12 Ves. 133.

See Evans and Bicknell,

Ves. 174. and what is said
in Clitfbrd v.

132.

Brooke, 13

Vefi.

FRAUD.

and

fraudulently

2j7

concealed

his

Mortgage,

Court decreed the Son, the Wife, and

Land

to hold the

Heirs

the Issue

against the Mortgagee and his

'.

Notwithstanding the general doctrine

and

yell

Christie

employs

seems now

it

that if on

settled,

price,

the

him up

a person to hid for

with

price, this

is

view

to

Bex-

pretty

well

Auction, a Vendor

Sale by

in

to

certain

prevent a sale under thai

not to he considered as fraudulent

nor can a Purchaser, on such account, refuse a

specific performance of his

person

is

Purchase

employed not merely with

prevent a Sale

at.

But

'.

undervalue, but

an

if

view

to

take

to

advantage of the eagerness of Bidders to screw up

the price, such conduct, it seems, is considered
as fraudulent'.

Where

the Bidders at an Auction, except a

all

Purchaser, are merely puffers, the Sale

lent against

any

is

fraudu-

such Purchaser; but where there are

real bidders

who

bid against each other, the

bidding of the Pullers will not render the Sale

invalid

14

It is a very old doctrine, that

destroyed

or

concealed by

v.
Berrisford
Mil ward,
2 Atk. 41). S. C. Barn. 49.
uu. 39S.
<
nnimli-y v. Alt,
Ves.

.'J

620.Conollyv. Parson8,3VeB.
025 and Bee what is ^ai<l in
'JVining end Morrice, 2 Pro.
C. C. 331. Smith v. Clark-,
}2 Ves. 447.
;

VOL.

I.

where

Deed

the Defendant,

'

Smith

v.

is

the

Clarke, 12 Ves.

4$3.
k

Howard and Castle, 6 T.

R. 042. Walker v. Nightingale,
4 Bro. P. C. l!>:?. a si edition
Attorney
Cm,
Christie
v.
I

Pro. P. C. 520.

last

edit.

equity jurisdiction;

258

and as it seems, upon

Lord Hunsdon's Case in Hobart m
If a Will, by which a Personal Legacy is given,
be destroyed or concealed by the Executor, he
may be cited in the Ecclesiastical Court but in
such Case a Court of Equity has a more effectual
Plaintiff is entitled to relief

the reason in

and a Party

Jurisdiction,

may

obtain a Decree

upon the head of Spoliation and Suppression, without being put to the difficulty of going to the
Ecclesiastical

Where

Court

Deed

n
.

or Will

is

under such Deed or

Heir, the Party claiming

on evidence of the contents of the

Will, will

Deed

suppressed by the

be decreed to hold and enjoy,

and the Heir or Suppressor of the Deed or Will
or Will

convey

to

In one case where no evidence of

p.

Deed

the contents of the

appears to have been

adduced, an interested Person,

had burnt

who

confessed he

was, by an interlocutory order q , com-

it,

mitted until he consented to admit the Deed, as

stated in the Bill

T
.

In another case,

where a

Will was suppressed, and no exact evidence was

adduced

as

the contents, the Plaintiff, the

to

Devisee, was decreed to hold and enjoy until the

Defendant produced the Will and further order \

Heard, Tot. 6'>
Eytonv. Eyton,
2 Vern. 380. S. C. Prec. Chan.
116. and 1 Bro. P. C. 151.
Bates

v.

S. C. 1 Dick. 4.

m Whitfield
1 Ves.
n

Faussett,

v.

387.

Tucker v. Phipps, 3 Atk.

3ti0.

Saltern against

Melhuish,

J P.

Dalston

Burton,

v.

Coatsworth,

Wms. 731 and

;

see

King

noticed

in

the

first

mentioned Case.
" See 1 P. Wms, 732.
r
Sanson v. RumSey , 2 Vern.
561.
s

Ambl. 249.
p

and Lord Hunsdon v. Countess

Dowager of Arundel, Hob.
100. S. C. mentioned 2 P.
Wins. 748. and Woodcroft v.

Hampden

mentioned

1 P.

v.

Hampden,

Wms.

C. 1 Bro. P. C, 250.

733. S<

FRAUD.

259

In every Case, however, of this description the

proof of the existence of the

fundamental to the Decree

1
,

Deed appears
and

to

be

usually men-

is

tioned in Decrees, affording relief in such cases.

Where

a Devisee obtained a

Decree

enjoy against the Heir, who,

to hold

and

was supposed,

it

had suppressed the Will, and pending the Suit, a

third person

made by

got an Assignment of a Mortgage

the Testator, and

then

purchased the

Equity of Redemption of the Heir with notice of

would not admit the pur-

the Will, the Court

chaser to dispute the justice of the Decree, nor

to try at

Law, whether the Will was not cancelled

by the Testator

v
.

The suppression
a strong ground

of

Deeds

will, it

seems, afford

the intervention of a Court

for

of Equity to prevent the operation of a Fine, even

in the case of a

legal Estate,

case of a Trust Estate

If a

the

Remainder-man

Remainder

is

will not allow the

of

it,

the

gets the

Deed by which
Power, and

created, into his

Tenant

Tenant

and clearly, in the

for

for Life to

Life, in

such case,

execute conveyances, and though

Cowper v. Earl Cowper,

2 P. Wins. 745 v749,75l). Such

have a sight

he

may

does not

Cowper v. Lord Cowper, 2 P.

Wins.. 749; and see Eyton v.
proof appeared in <iartside v. Eyton, Pr. Cli. 116.
' Finch v. Newnham, 2 Vern.
Katcliffe, 1 Ch. Ca. '292. Hunt
r. Matthews,
Vern. 408. 216.
w
Wardour v. Bere-ford. 1 Vern.
Bowles v. Stewart, 1 Sell,
452. uot rightly reported in- 'and Lei'r. 220.
->*.
the parucular
mentioned in
1

s9

EQUITY JURISDICTION.

260

pursue the terms of the Power, yet Equity

relieve

If a

Cestui

Bond be destroyed by the Trustee, the

que Trust may file a Bill of Discovery, and
of the Bontl

the destruction

if

will-

is

admitted, that

does away the necessity of Profert at Law, and

Liberty will be given to the Plaintiff to bring an

name

action in the

of the Trustee, and further

directions will be reserved

after the Trial y .

till

If a Person gives a voluntary

veyance

an

him

a fraud in

ance

a
,

and

in

is

Principal

Deed

Gilbert's

Lex

Praetoria,

Seagrave

v.

Seagrave,

13 Ves. 43Q.
* Atkins v. Fair, 1 Atk. 287.
S. C. more full 2 Eq. Abr. 247.
8

and

Do

Bushell v. Bushell, 1 Sch.

l.efr. 102. Worseley and
Mattes,' 1 Burr. 474.

7 Anne,

Forbes

20.
Deniston, 2 Bro.
P. C. 425. This is the leading
ca?e on the subject, and appears
to have been extremely well
considered. See 1 Sch. and
C.

v.

Lefr. 99,100.

Le Neve

v.

Le

Con-

in

Conveysuch case

as

notice to the

Appointment of Lands?

of

MS.

Notice to the Agent,

cases considered
If a

considered as

on the Statute* ; and

Middlesex be made

in

it is

will relieve

these

Money

to obtain a registered

insist

the Court

a Bill will lie

unregistered

a Register County,

in

it,

and payment of the

If one has notice of

after-

wards procures, and destroys

for a discovery

Bond, and

in

pursuance of a power

Neve, 3 Atk.C46. S. C. Amh\

430. and 1 Ves. 67. etc. Blades
v. Blades, 1 Eq. Abr. 358.
C. 3 Atk. 654. Beatriff v.
Smith, ib. p. 357. Clieval v.
Nichols, 1 Str. 664. S. C. 2.

&

Eq. Abr. 63. Hine v. Dodd,

2 Atk. 275. S. C. Barn. 258.
Wrightson and Hudson, 2 Eq
Abr. 609. Sheldon v. Cox,
Ambl.
624.
Moreeock v
Dickens, Ambl. 678. Bushel}
v. Bushell, I Sch,
and Lefr.
p. 100.
d

Lc Neve

supra,

y.

Le Neve, ut

261

will

be postponed to a

Deed,

a former

in

FRAUD.
it

Mortgage, subsequent

The

notice

to,

but registered before

it*.

may be proved by parole Evidence

upon which, however, Lord Alvanley observes,

"

regret that the Statute has been broken in

by parole evidence, and am glad

'Hardwickt, in Hine

v.

of actual fraud will do

With

Dodd
s

to

find

says, nothing short

in

which Relief

is

Deeds fraudulently obtained,

appears that, where a

Deed

is

set aside for fraud

and imposition, a reconveyance has

h

cases ,been directed; but

it

in

several

seems unnecessary, and

done ex abundanti cauteld

to have been

Lord

."

respect to the form

given, in cases of
it

upon

'.

If the

Estate has been conveyed to a third person, as

it

would

set

aside,

an Instrument, not privy to the Fraud,

be different

upon paying

and
so

so, if the

much Money,

Deed
there,

the Estate remains in the Grantee

e
Scraftonv. Quincey, 2 Ves.
413.
1

Ut supra.

Jollaud v. Stainbridge,
Ves. 480.
"See Barnesley v. Powell,
I Ves. 2S4.
[See Bates v. Grave*, 2 Vea.

is

jun. 294

till

payment,

k
.

and see Hawes and

Wyatt, 3 Bro. <J. C. 150. and

the remark on that case in
Attorney Gen. and Vigors,
8 Ves. 2*83.
k
lb. 295; and see Hawes and
Wyatt, 3 Bro. C. C. 150.

rQUiiY jrnxsoxcxxoN.

264

7F. Infants.

His Majesty
care of Infants

the

King

Patria:,

as Pater

to his

% and

care

this

entitled to the

is

delegated by

is

Court of Chancery

and as

it

seems, to that Court only, for the Court of King's

Benchhas not any of that delegated authority

c

belongs to the Chancellor

neither,

that

seems, has

it

" That Court," says a

the Court of Exchequer.

may appoint a Guardian ad litem:

when the Interest of an Infant comes

learned Writer,"
it

may

before

also,
it,

provide for

security

its

but whether

can appoint a Guardian to an Infant

it

purposes, where none

is

appointed

for general

or whether

it

can in an equal extent exercise that protective

power which watches over the

in the

Court of Chancery,

is

Interest of Infants

a point

which

not find any where solemnly determined

The Court

of Chancery, therefore,

do

d ."

it

seems,

has the exclusive care over Infants; and though

by Act of Parliament, the Court of Wards had

a particular power over Infants and Lunatics, yet
in every other respect the

Bract. Lib.

3.

c. 9. Fleta,

Ch. 2. Stamford 39.

b
Berty v. Lord Falkland,
2 Vern. 333, 342. 2 P. Wms.
119; and see 2 Atk. 315.
3 Atk. 105. Butler v. Freeman,

Law

as to Infants con-

Ambl.301. De Mannevilleand

De
c

Bfanneville,

10 Ves. 59.

2 P. Wins. 118.
Treatise

Fonbl. 2

vol.

of Equity, by
229. in note.

INFANTS.

tiuued as before; and

the power

24.

resulted back
tent

the Court of

of

them

to

the Court ever

again, in

2.

Infants,

original ex-

its

The

instance, perhaps, in

strongest

Court of Chancery has exercised

in regard to

Infants,

is

where

from a Parent the custody of

been done in

lias

Wards

was dissolved by the 12 Ch.

and Liveries
c.

when

2G3

many

such Custody

Child

instances

general, a Father has a natural

Jurisdiction

its

has taken

it

its

which the

away

but this

for though, in

and

legal right to

yet a Child has been removed

f
,

from the controul of a Father, in constant habits of

drunkenness and blasphemy
gross
lie

ill

treatment*,

had become

And

so in a case of

and even where

insolvent'.

(a

strong case)

Acting under the same

power of controul, a Father has been prevented taking his

was

where the intention

case,

abroad

k
;

with him,

Child abroad

and even

if

it

to

be suspected that the

inter-

to give security that

and oblige the Parent

he will not remove the Child, or do any act

e

51 G

Hill
;

v.

Turner,

Atk.

and see Roach and Gar-

educate him

Child will be taken abroad, the Court will

fere

in

'

Wilcox

v.

to-

Drake, 2 Dick.

GUI.
k

Cruse v. Orhy Hunter,

van, 2 Ves. 159.
'Ex parte Hopkins, 3 P. -mentioned in De Bfanneville
and De Manneville, 10 \ eg.
Wins. 154.
Vid. Case mentioned in De
55 and 03. and in Ex parte
Manneville v. De Manneville, Warner, 4 Bro. 101. and in
1 P. Wins. 704. note 1.
10 Ves. 61, 2.
h
Eyre v. Countess of ShrewsWhitfield v. Hales, 12 Ves.
'

492.

bury,'

2 P. Wms. 102.

r.QL'lTV JURISDICTION".

261

wards, or for the purpose of removing

Ward

Scotland"; nor would

make an

Jurisdiction

As

it is

of Court, would not be safe,

would not permit

the Chancellor

dian,

it,

it

even to go to

at the instance

of a Guar-

order to take the Infant out of

its

beside the plan of this

Common Law

into the

ot

"'.

the Jurisdiction
If a Child, a

out

it

which there

is

Common Law

Work,

to enter

doctrine as to Infants, (of

an abundance to be found in the

Writers.)

what

is

here said,

will

be confined to the peculiar doctrine of the Court

of Chancery on that subject; and this, (exclusive
of the Privilege of Infants

as

allowed

in

practiceof the Court) principally respects,

Guardianship;

the Maintenance;

2.

and

1.

3.

the

the

the

Marriages, of Infants.

By

1.

Common Law, a Testator cotild

the

any Testamentary Disposition

Land

not by

affect either his

or the Guardianship of his Children;

nor

does the Guardianship of Children appear to have

been made the subject of Testamentary disposition,

till

the 12 Ch. Q.c. 14.

Lord Ch.

J.

the Mother

De

h.

",)

a Statute

drawn by

to dispose ofthe Guardianship of the

De Man-

50.

Mouns^uart v. Mounstuait,

G Vc. 303.

Hale q which enables the Father (not

Manneville v.
ntville, 10 Ves. 52.

Ex

parte the Earl of

it

chester, 7 Ves. :$7u.

''Eyre v. Countess oi'Shai'tes-

bury, 2 P. Wins. 125.

r

Ex

5 ID.

parte Edwards, 3 Atk.

INFANTS.

Child

twenty-one, but

until

period

not

beyond

that;

though a Mate Infant marries, the

and

Guardianship does not determine

till

twenty-one

but by the marriage of a Female Infant before

twenty-one the Guardianship

has been recently decided, upon the Statute,

It

that a Father

may by

Will dispose of the Guar-

dianship of children born and

children by a second Wife w .
also, that a

dian

determined

is

born, including

to be

has been holden

It

Testamentary appointment of

Guar-

not revoked by a subsequent testamentary

is

appointment, not executed according to the Stc*

and not directly importing a Revocation

tute,

x
;

and that a Guardian has an Authority coupled

three Persons be appointed

with an Interest, and

if

Guardians and one

dies,

vives

the Guardianship sur-

Strictly

speaking,

cannot appoint

Father

but

to a natural child;

Testamentary Guardians

where he names Persons

in

his Will

as

Guar-

dians, the Court, on Petition, will appoint those

Persons Guardians, without a reference to the

Master

And where

1
.

a married

pointed Guardian, the

Money

Woman was

of the Infant was

ordered to be paid to her upon her separate

fceipts

'

parte
638.

Ludlow, 2 P.

Mendesv, Mendes, 3 Atk.

Ex

parte Earl ofllchcver,

v.

Eyre

v.

bury, 2 P.
'
Ware)

Countess of Shafts-

Wms.
ag&b

103.
t

St.

Paul,

2Bro. C. C. 563.

lb.

*7Ves.

7 Ves, 348.

C25. S. C. 1 Ves. 90. Roach

Garvan, 1 Yei. 100.
v

re.

Px

Wms.

ap-

p.

34S.

Wallis
Ves. 517.

v.

Campbell,

13

EQUITY JURISDICTION-.

236

Testamentary Guardian, by Statute, has

Law which

the remedies at

they have no more power

a Father has

than

b
;

all

but

Guardians in

Socage, and are but Trustees, on whose misbehaviour, or giving occasion of suspicion, the Court

of Chancery will interfere

And

r
.

has been

it

holden, that a Testamentary Guardianship

assignable

and that

Administrators

A Guardian
ger,

"

It

it

go to Executors or

will

appointed for a Child by a stran-

cannot be conceived/'

" because another thinks

though never so great, to

am by

that

means

to

which naturally belongs

Guardian

5 ;''

case, that a

So, a

says
to

fit

my

ineffectual

is

Lord

give a

is

f
.

King,

Legacy,

daughters, there-

be deprived of a

right,

me, of being

their

to

but the Court will take care

Child

expectations

not

during the Life of the Parent,

fore I

is

in

such

educated according to his

h
.

Grand-father has no power to appoint

Guardians of his Grand-son,

it

being a right

vested in the Father; but any one can give his

Estate on what conditions he pleases
are instances

and there

where a Grand-father has given his

Estate to a Grand-child, and appointed Guardians

of his Estate and Person
b

Butler against Freeman,

Arnbl.302.
c
Duke of Beaufoit

v.

Berty,

Wms

702.
d Mellish and
Da
2 Atk. 14.
e
2 P. Wms. 121.
1 P.

Costa,

and if the Father did not

f
Powell v. Cleaver, 2 Bro. C.
C. 500. Ex parte Warner,
4 Bro. 101,
e
Ex parte Hopkins. 3 P,

Wms.
b

101.

154.

2 Bro. C. C. 500. 4 Bro.

iwrA>TF.

work

Father's opposition
If there

Estate.

Court has made the

the

Will,

to the

submit

567

a Forfeiture of his Son's

to the

any Gift

is

Will, and he submits to

it,

Father in the

the Court directs and

appoints a Guardian on his presumed submission

If a testamentary

Guardian refuses

Petition, (a.Bi\\ for the purpose

be presented
but

it

act,

unnecessary,)

may

another Guardian

appoint

to

is

to

'.

w
;

that where Guardians have

has been said,

accepted the Guardianship,

if

afterwards they will

not act in the Trust, the Court will compel them,

nor will the Court appoint others

in their stead,

unless under very particular circumstances

'.

no Guardian, an Infant may,

by Petition, without suit, obtain an Order for the
m
appointment of a Person to act as Guardian ,

Where

there

is

(even where the Father

is living, if

provident Person,) and

as to

Maintenance

also

he be an im-

obtain

a reference

but though such an Order

has often been made",

it

has in some

instances

been prevented being fully carried into execution

until a Bill has been filed: as where the Property is
considerable, or it is necessary to take accounts in
the Master's Office

or

a discretionary power
1

Blake

v.

is

Leigh,

Arnbl.

Casey,

300,7.
k

and

O'Keefe

v.

Lefr. 100.

Ex

Sch.

parte Salter,

Bro. C. C. 500.
Spencer against Earl of
Chesterfield, Ambl. 140.
m Ex parte Birchill, 3 Atk.
813. Ex parte Salter, 3 Bro.
C. C. 500. S. C. 2 Dick. 700.
where subject much di?cusicd
1

when Trustees

in

whom

vested are called on to

by the Register. Ex parte Kent,
ib.
p. S8. Mellish and Da
Costa, 2 Atk. 14. Ex parte
Whitfield, '2 Atk. 315. Lady
Tenham v. Barrett, 2 Bro. P.
C. 315.
" Ex
parte Mountt'ord, 15
Ves. 445.
See
the cases mentioned

by Mr. Dickens, in Ex pane

Dick, 772

equity Jurisdiction,,

265

allow a Maintenance

The Costs

of the

Guardian

tion will be allowed to the

Petfc

in his c-

co tints q .

In some cases a Receiver has also been appointed on Petition but Lord Hardwickc thought that
1

-,

was going

far

too

The

s
.

Will never be decided

right to Guardianship

on Petition, but only on

a Bill \

Where

the Infant's Property

Court,

the

on

Petition,

is excessively

small,

appoints a Guardian,

without a reference to the Master

but where the

Property amounted to .1500, the Court would

not appoint without a reference

v
.

upon them

If the Ecclesiastical Courts take

appoint Guardians,

ex

without

officio,

a Suit

instituted for that purpose, a Quo Warranto,

seems, might issue against them, for

regard to the Guardianship of Infants

any misbehaviour be shewn

If

the Court, as

it is

Petition only

y
,

it*;

is

v.
Tottenham,
and Beatty, Irish Rep.

p. CO.

"Ex

parte Salter,

Bro.

C. C. 500.
r
Ex parte Odell, mentioned
2 Alk. 315. Ex parte Peploe,

mentioned 3 Bro. C. C. 501,

Kx
315.

and

will

by Petition

Corbet

1 Ball

parte Whitfield,

Guardian,

in a

and the proper

change a Guardian,

in

matter of Trust, has a su-

over

perintendency

it

breaking

it is

upon the Jurisdiction of the Chancery,

in

to

Atk.

'

Ex

interfere

on

application to
z
;

parte

Wins. 152.
* Wheeler,

but

it is

said,

Hopkins, 3 P.

Ex

parte, 16 Ves.

2CC.
w

Buck

v.

Draper,

3 Atk:

031.
x
Evrev. Countess of Shaft sbury, "2 P. Wms. 100.

lb. 1 17.

Vid. Earl of
7Ves. 348.

Ilchester

INFANTS.
that

Testamentary Guardian has once

if

upon him and acted

the Trust

sought to remove him

it is

*iG<>

must be

filed

as Guardian,

misconduct, a

for

it

it'

Bill

a
.

If a Testamentary Guardian be declared a

rupt,

t.ikou

will be referred to the

Master

Bank-

approve

to

of another person to act as Guardian

no objection

a Dissenter

to a

Guardian, that he

is

But

it is
.

Guardian cannot, unless authorized by the

Will so todo d change the nature of the Infant's

,

Estate, real into personalt} r , or personalty into real",

unless by

some act manifestly

They cannot do

vantage.

for the Infant's ad-

it

wantonly

f
.

Lands

purchased by the Guardian with the Infant's personal Estate, or the Rents and Profits of his Real
Estate, will, in case of his death during his

Mi-

nority, be considered

and

personalt

as

still

there seems good reason for this

Trustees could

turn

e:

for if an Infant's

and convert

his personal

pstate into Real Property, they would thereby

Law gives him

debar the Infant of the right the

of

disposing of his personal Estate at seventeen, and

might

their pleasure

at

O'Keefe

and
6

T.efr.

Smith

v.

Casey, 1 Sch.

See

Warth,

106.
v.

advance the Heir, and

Bate, 2

Dick.

631.

Diet,
I

in

Rook

and

Ves.46f.

Inwood

v.

Twyne, Ambl.

410, 420.

Corbet
1 Ball

Tottenham,
v.
and Beatty, Irish Rep.

P- 61.
* Terry
273,

v.

Terry, Free. Ch.

h'

Gibson and

Scudamore,

Dick. 45. S. C. Select cases

in Ch. p.'C3. and Mos. (5. Earl
of Winchelsea v. Nordiffe,
1 Vera. 434.
1

EQUITY JURISDICTION.

^70

prevent an Infant from providing for his younger

children

Where
Tail, cuts

Tenant in

the Guardian of an Infant

down Timber,

the

Money

produces

it

will be considered as the personal Estate of the

Infant; but if the Infant has

considered as Real Estate

Money
be so

laid

the

'Fee,

will be

it

'.

ordered to be laid out in Land, must

out

nor can there be an election to

have the Money, as there might

if

the Infant

was

of age to elect

In some cases the Personal Property of an Infant has been ordered

in the purchase of

by the Court

to be laid

out

Land, though there was no

authority in the Will for changing the nature of

the Property

but

at the

same

time,

it

has been

ordered that the Estate purchased should be conin Trust, for the Infant

veyed

his Executors

Administrators , until he should attain the

twenty-one,

Heirs

and

afterwards, for

and

age of

him and

his

If a feme purchases a

and her Heirs

for three

Church Lease

Lives and dies,

to

her

leaving

an Infant Daughter, and two of the lives die, and

the Infant's Guardian renews the Lease, this

,l

son
i

Vem. 437

; and see PierShore, 1 Atk. 483.

Tullit v. Tnllit, Ambl.

v.

870. Mason
tioned Axnbh

v.

Mason, men-

37K

See diet, in

is

Rook and

Wartli, 1 Ves. 461.

Ashburton v. Ashbnrton,
C Ves. 6 and see Sergeson v*
Sealey, 2 Atk. 413.
'

INFANTS.

anew

271

acquisition, and goes to the Heirs on the

part of the

Father

The Guardian

school to place his

Ward and
;

in

the Court will not

changing his school

and

if

he should

compel him".

refuse to go to school, will

the case of a

what

at

in being put with a private

indulge the Infant

Tutor, or

proper Judge

the

is

Female Ward, above the

In

age of

puberty and marriage, some weight will be

on the inclinat'on of the Infant,

as to

she should reside, and be educated

If Guardians disagree as to the
their

with

laid

whom

management of

Ward, the Guardianship devolves on the

Court p and where there were differences between

;

Guardians, as

to

parole Evidence

the Education of the

was held

it

govern the Court

to

2.

The

to be admissible

Indeed, in such Cases,

Intent of the Father.

6orts of Evidence,

Ward,

has

been

all

said, are received,

in its direction

Court

doctrine of the

the

q.

relative to the

Maintenance of Infants, may next be considered.

Sir Joseph Jekyll was the

first

who

ordered a

no Bill was
has since been

reference as to Maintenance, though

filed for

that

purpose

frequently practised

1
;

and

this

but the more recent course

of the Court seems to be, not to grant a Maintenance, upon Petition only, except in very special
m Mason v. Day,
Prec. Ch.
and see Pierson v. Shore,

3H>

Atk. 4S0.
n
Hall v. Hall, 3 Atk. 721
and see Anon. 2 Ves. 374.

A"OQ. 2 Vei. 375,

Wms.

Anon. 2 Ves. 56.

See Ex parte Kent, 3 Bro.

C.86. and Ex parte Salter,
lb. 500,
r

Storkev. Storke, 3P.

52.

EQUITY JURISDICTION.

27cases

as

tenanee

where there

general Rule,

Maintenance

be ordered
Maintenance
,but

fund

very small

for Main-*
;

hut, as

a,

^HCOper Annum,

In those cases where

s
.

directed without suit,

is

Costs

may

*.

also

is

the Infant has

if

a Bill should be filed

time past

a specific

is

or the property

will not in general

be allowed for

may, under particular circum-

it

stances"; but interest

is

never allowed on arrears

of Maintenance, any more than upon the arrears

of a Jointure

Where

there

dends are due

the Testator

Where

a specific

is

Legacy of Stock, Divi-

Maintenance, from the death of

for

y.

Fund

is

given as a Bounty, to a child,

the Father, if of ability, notwithstanding a Provision for maintenance in the donation,

tain the
to the

Child

7
,

lation, a

Father

is

are given

Ex

given

parte
parte

to.

a Child by a Re-*

him out of his own Pocket,

Mountfort, 15

Ves.p. 448.
1

is

notonly obliged to maintain the

Child, and provide for

Ex

it

Father \

Where Legacies

must main-

unless in cases where

Sherwood and Smith, 6 Ves,

454.

Thomas,

AmbL

140.
v
Hughes v. Hughes, 1 Bro.
C. C. 380. Hill and Chapman,
2 Bro. C. C. 231.
w Maberly and Turton, 14
Ves. 499. overruling Andrews
and Partington, 3 Bro. 00. but
see the remark on that rase
bytheSolicjtorGeneral in Hoste
v. Pratt, 3 Ves. 733 see also
Sisson v, Shaw, 9 Ves. 288.
Reeves v. Brymer, 6 Ves, 425,
.

x
Mellish and Mellish, 14
Ves. 510, 517.
y
Barrington v. Tristham,
Ves. 349.
z
Hughes against Hughes,
1 Bro. C.
C. 380. Munday
against Earl How, 4 Bro. C. C.

226; but see Hoste v. Pratt,

3 Ves. 730. where, maintenance,
being directed by the will, no.
inquiry was directed as to the
ability of the father.
1

Bro. C, C. 388.

INFANTS.

273

buthe cannot apply the Legacy to set him out

the World, or put him out an apprentice or clerk

But whether an Infant

the

b
.

have an allowance

shall

of Maintenance during

of the Father,

life

depends always upon the particular circumstances

of the case
ther he

The question

of ability

is

generally

parent must maintain bit

Child, unless totally incapable, or by

numerous family

whe-

is,

having a

he borders upon

of children,

necessity; nor will the Court direct the Interest

be applied for the

of a contingent Legacy to

Child's Maintenance, unless, from

of his Parent, he

want
is

is

in

the

danger of perishing for

And where Maintenance

Poverty

allowed,

is

it

always paid to the Parent out of the Child's

Estate

and there

is

no instance of

ducted out of a Legacy

by

left

being de-

its

a Father

to the

Child % or out of a debt due from the Father,

though insisted on by Creditors

Mother, married to

f
.

second Husband,

by the

obliged to maintain the Children

but

is

entitled to an allowance

Where

Man

had children

by

not

first s ;

Maintenance,

for

from the Interest of their fortunes

is

h
.

his

first

Wife,

and on her death married a second, and by the

Settlement, the Children of that Marriage were
expressly secured

a Maintenance,

b
Darley v. Darley, 3 Atk.
399.
r
Jackson v.Jackson, 1 Atk.
515.
d
Butler v. Buller, 3 Atk.

GO and see Jeffreys

3 Atk. 123.
;

VOL.

I.

v.

it

was held

Jeffreys v. Jeffreys, 3

Atk.

123.
lb.

'

Bank of England

v.

Morris, cited lb.

Sed Yid. 2 Ventr. 353.
Billingsly against Critchet,

Jeffreys,

''

1 Bro. C. C. 2b8.

EQUITY JURISDICTION.

274

second Wife's death, that the Father was

after the

not bound

maintain a Child by the second

to

Wife.

Maintenance

necessary, be allowed to

i[

where the chance of surviving

Infants,

among

will,

all,

and no other

contingency would take

or

be defeated
1

";

and

',

this,

under which the

Will,

in the

upon any

interest that

effect, will

where the Devisee over consents

though there be

equal

is

Infants claim the maintenance, a direction for ac-

cumulation during Minority.

But where,

Event of the

under twenty-one,

Infant's death

leaving Issue, the accumulated -Property

in the

to

is

go

In
such Issue, Maintenance is not allowed
Infant
has
not
the
the
absolute
those cases where
1

to

Maintenance

Interest,

on a Bill

only, but

purpose"

not granted on Petition

is

filed

exclusively for that

1
.

Where, from proceedings on a Bill for an Account, the Court is satisfied that the Fund is
clear, a

Residuary Legatee

in

respect of the ne-

on taking of the

cessary delay

have an allowance

for

accounts,

maintenance,

in the

may
mean

time".

When
much

so
'

Trustees are directed by will to apply

Interest as

See Greenwell

v.

may

Greemvtll,

5 Ves. 194. Errington v. Chapman, 13 Ves. 25. Ex parte

Kebble, 11

Ves. 004.

Lomax

Lomax, ib. 48.

Fairman v. Green, 10 Ves.

v.

be necessary for main12 Ves. 321.

parte Kebble,

Blaekburne, 9 .Ves. 470.

m Fairman v. Green, lOVes.
45. Sed quaere; for Ex parte
Kebble, 11 Ves. 004. was on

48.

petition.

Errat and Barlow, 14 Ves.

202. Aynsworth v. Pratchett,

1)2.

Ex

11 Ves. 004. Collis v.

Warter

v.

13 Ves-

INFANTS.

&c. the Court

taining,

270

will, if

the Infants

have

other Property, confine the maintenance to what

actually necessary

is

The strongest

case, perhaps,

where maintenance

has been allowed, was where a Testator directed

maintenance
for

Daughter

his

Sons during Minority, and

for his

till

twenty-one or

and gave her a Legacy

in case she

Marriag

should attain

twenty-one, payable, and to carry Interest from

that time; yet having married at eighteen, she

allowed maintenance
ty-one

The

was

twen-

for the interval, until

Interest of small Legacies (.=300) has been

ordered to

Mother

be paid to the

nance, upon her affidavit, that

for

mainte-

the Father was

abroad, in very embarrassed circumstances'

The Court,

it

seems, always refers

it

generally

to the Master, to consider of a proper allowance,

and does not make

large allowance, for
will,

special

a Guardian or Father are

destitute, a

v.

him

y.

Goldwin,

Burnett

Ex

to tin
v
.

parte Lord Petre, 7 Ves.

Roach

v.

Garvan,

Ves.

160.

15 Ves.

v.

Shore,

v.

Burnett,

122.
r

'

left

403.

1.

Walker

made

maintain them

to

GoldiVap, 5 VeSi

Chambers

where

distressed circum-

large allowance will be

\ldest Son, to enable

11 Ves.

in

as

and where younger children are

stances':

maintenance and education,

under circumstances, be allowed";

Rawlins
440. ^

and

reference';

Bro.

C. C, ITU.

T 2

'Harvey v. Harvey, 2 !\
Wins. 24.Lanoy v. Ouke arid
Duchess of Aihol, 2 Ait. 417.
Petre v. Petre.. 3 Atk. 511.

EQUITY JURISDICTION.

276*

It is a general rule that a

Trustee cannot,

break in upon the

the purpose of maintenance,

capital,

for

though the capital may be so small,

as

not to leave a comfortable maintenance and eduvery rarely, that the Court

cation;

and

self has

broke in upon the capital,

it is

purpose of maintenance
3.

may next be

Where Infants under

upon

the mere

for

The Marriages of Infant Wards of

of Chancery

applied

generally

to, it

Court

the care of the Court, are

be obtained.

to

the

considered.

a Treaty of Marriage,

Court ought

it-

makes

the consent of the

When the

Court

is

a referrence to the

Master, to see whether the settlement proposed

proper

is

if it is

found to be improper, the Court

will not give the Infant leave to

marry

x
.

In like manner, in the City, an Orphan Infant

cannot marry without the Licence of the Court

The Hus-

of Aldermen, on pain of commitment.

band

is

usually required to take out his Freedom

of the City, and the Court refers

Serjeant to

it

to the

approve of a proper Settlement y

And though it appears

Wife being a City Orphan, yet

punishable, for he is bound to enquire

The Marriage

is

Walker v. Wetherall, C Ves.

Smith

y.

he

is

a ravishment of the Ward, and

474.
x

still
z

of a Ward, without the consent

of the Guardian,

305.

the Party had no notice of

his

CommoR

Smith, 3 Atk.

y See Frederick v. Frederu k,

1 P. Wms. 710. etc.
Vid. note D. to Herbert's
Case, 3 P. Wms. 118.

INFANTS.

by the

severely punishable

Nor

'2.0.35.".

more resentment
riage of Infants

No act

of Westminster,

Stat,

anything a Court of
greater jealousy of, nor shews
there

is

Equity entertains

277

against, than the unlawful

Mar-

''.

of more importance to an Indi-

in Life is

vidual than Marriage

none on which the color

much depends.
Ward of the Court, (filing a
Ward of Court',) be suspected
make an improper Marriage,

of his future Life so

If an
Bill

Infant, a

makes him

of being about

to

and there bean

riage, the

affidavit of

such intended Mar-

Chancellor will grant an Injunction

communication with the

Infant, by Letter or otherwise
Hearsay Evidence of declarations, will be attended to, on such

generally to restrain

all

11

occasions 6 .

Where an

Infant

Ward

of the Court

is

sus-

pected of forming an improper Marriage, and the

Mother, her Guardian, countenances

will appoint a

Guardian

in

it,

the Court

her room, and restrain

her from giving her consent to the Marriage with-

out leave of the Court, and that the Infant should

not be married without leave of the Court, and
Infant will be restricted from receiving any

""the

Letters or Messages from her admirer'.

' 2
Inst. 440. 2 P. Wins.
110. Fitz. Nat. Brev. o"29. 2
Edit.
b

Wins. 111.
Ambl. 303. Lord RayP.

raond's case, For.GO. S. C. MS.

d
Pearce and Crutchlield,
14 Ves. 20(5
and see Lord
Raymond's Case, For. 58.
;

S. C.

MSS. Beard and Travers,

lVes.313.
e
Beard

v.

Travers, 1

Ves.

313.

See Lord Shi pb rook v.

Lord Hincbinbrooke, 2 Dick.
547,8. and the case there mentioned
and see Roach and
'

Gai van,

Dick. S8.

EQUITY JURISDICTION".

2?8

All Persons,

it

seems, concerned in the contri*

vance of the Marriage of a Ward of Court, knowing

her to be such, are punishable for the contempt e
.

If Peeresses are instrumental in the Marriage of

Ward of Court, without

the leave of the Court,

a sequestration will be issued

contempt

their

them

principal contriver of the

Ward with

for his offence,

committed

struck out of the

the Fleet, prohi-

to

Ward

no contempt

is

been

as a Justice of the

of the Court, marries after

of age, without the consent of

is

this

Commission

If a Lady, a

she

Mar-

a large fortune, has been,

bited from practising at the Bar, and has

Peace

for

Barrister, a

riage of a

against

11

Court oblige him

to

in

th.e

Court,

Husband, nor can the

the

execute a Settlement,

if

the

Husband does not seek its assistance to obtain her

Property but if the Lady be under age, it will be
;

considered as a contempt, and the Court

bled,

by Imprisonment,

make

case,

where

to

proper Settlement
a

is

ena-

compel the Husband

k
.

In a very aggravated

Guardian married

his

Ward, who

was of age, to his Son, who had no Property,

was held to be punishable by an Information '.

Where

a Marriage of a

to

Ward

it

of Court, without

consent, takes place, on a Petition by the Guardian,

all

Moore

Parties concerned will

v.

Moore, 2 Atk.

157.
h

Evre and Countess of

ghaftsbury, 2 P. Wms. 112.
'JWr. Justice Mitchells Case,
'

2 Atk. 173.

be ordered to

S.

C.

mentioned

Ambl.304.
k

Hall v. Coutts, 1 Ves. and

Beames, p. 300.
Harris, 2 P.
1 Goodhall v.

Wms.

5G0,

INFANTS.
attend, and the

not to

W.jfe's visits;

may be compelled
time, the

'",)

Husband may

charged, on executing

and restrained

and she,

leave her

to

committed, but

(though Lord Hardwickt

orders to that effect

from receiving his

some

will be

Husband

close confinement^

made some

S7fl

it

seems,

Husband

after

petition to be dis-

Settlement, approved by

the Master.

The

attendance, of a person running

personal

and marrying a Ward, has been dispensed with, on offering to go before the Master,
off with,

and make a Settlement

and

":

in

some

he

cases,

has been discharged, on undertaking to

make

Lord Eldon refused to do p

The common course of the Court is to have a
Settlement"; but

this,

reference to the Master, to see that a proper Set-

tlement shall be made, before the contempt can

be cleared

q
.

Marrying an Infant Ward of the Court

is

contempt, though the Parties concerned in such

Marriage had no notice that the Infant was a

Ward of the Court

r
;

and

though on the day the

to be a

contempt

And though
Ward
comes

Marriage in Scotland,

was

filed,

has been held

',

a Marriage has

of Court, and
to

Bill

been had with a

some years

elapse

before

the knowledge of the Court, yet

m See 8 Ves. 79.

n
against Pritzler,
Green
Ainlil. 602,
Stackhole's case, 'A Yes, 89,
Winch anil nines, 4 Yes. 387.
v Batlmrst v. Blnrm, 8 Ves,
.1

70.

Stevens
Juu. 154'

v.

Herbert's

it

Savage,
(.'use,

it

will

Vet,

^ P. Wins.

10.
s

SulU*
572.

v.

Kavijjnou, G Yes,

EQUITY JURISDICTION.

280

not suffer time to affect the right of the Court to

interpose in respect of the contempt'; but

it

will

not punish the Party in such case, unless very

strongly called upon so
If the Father

todo v

v
.

of ability, and implicated in

is

the procurement of the Marriage, the Court,

seems, will use

its

it

animadversion, to force a proper

provision from him.

In Settlements of the Property of Female Wards

much

of Court,

will

depend upon the Fortune of

the Husband, and his conduct.

ries the

Woman

If a Beggar mar-

for the sake of her

Fortune, the

Court

will not permit him to touch that Fortune

but

the

if

Husband be of equal rank and

with the Ward, and

made by the one

is

be paid

such

to

as considerable

fortune

a Settlement

by the

other, attention will

circumstances w .
as

The

usual

Settlement, seems to be, to settle one- fifth of the

Dividends and Interest of the Property upon the

Husband, and the residue upon the Wife for her

sole and separate use during their Joint Lives,
with a clause to prevent anticipation", and a power

Wife to give another one-fifth

band by Will; the residue, subject
to the

to the
to

Hus-

Provi-

sion for maintenance, to accumulate, and with the

principal to go to the children at their

twenty-one or Marriage, or
that child
1

and

Ball v. Coutts, 1 Ves.

and

lb. 302.
* Ball v. Coutts, 1 Ves.
*

p.

See Chassaing

5 Ves.

17.

and

303.
v.

Parsonage,

of*

only one child, to

in the event of a

Beames, 297.

Beames,

if

ages

second Marriage^

In one case on a second

Marriage, the Wife was enabled
to settle the Interest of a
moiety of her fortune on the
second Husband. See 4 Ves.
386.
>'

INFANTS.

power

to the

Wife

261

to charge,

by way of appoint-

ment, to each child, a share not exceeding the share

of each child

by the

of no Children,
Limitation,

is,

first

Marriage

Husband

the

in default

In case

surviving,

the

of appointment, to her

next of Kin, exclusive of the Husband

z
.

In a gross case on the part of the Husband, the

Court refused even to pay his debts out of the

accumulation

Where, upon the Marriage of a Ward of the

Court, the Husband had falsely sworn she was of
age, though only fourteen, the Clergyman was
ordered to attend and was reprimanded, and the

Husband was committed, and ordered

to

be

in-

which he was, and was convicted, and

suffered the punishment of the Pillory and Im-

dicted,

On

prisonment.

his Petition

to

be discharged,

on executing a Settlement, the Chancellor would

not approve a proposal giving him any farther
than in case of his surviving his Wife,

Interest,

and no Children, and an appointment

by

his

in his favor

Wife \

Contriving a Marriage, without a due publications of Banns,

exclusive
said, a

is

of the contempt, for

Party

may and

it

has been

ought to be indicted

is

gives a Recognizance, that

y See Wells v. Price, 5 Ves.
398.
* Bathurst v. Murray, 8 Ves,
74.
1
Chassaing v. Parsonage,

Common Law,

which,

committed by the Court

the custody or care of any one, such Committee

AYhere an Infant
to

a conspiracy at

Ves. 15.
b

Millet

v,

Rowse, 7 Ves.

the Infant shall

not

419. and vid. what is said of

that case in Ball v. Coutts, 1
Ves. and Beames, p. 296.
c
Priestley v. Lamb, 6 Ves.
421. Schrieher v. Letevrerd,
2 Dick. 592. and *he c^ej
cited; and 2 P. Wins, 5G0.

EQUITY JURISDICTION.

262

marry without leave of the Court, which form

and only under special

very rarely altered,

eumstances: so that

if

is

cirr

the Infant marries, though

without the privity or knowledge, or neglect of

the Committee, yet the Recognizance

may

in strict-

whatever favor the Court upon ap-

ness, forfeited,
plication,

is,

think

shew such Committee,

to

fit

-when he appears not to have been

Dr. Davis's Case %

in fault

rt

In

the Recognizance was on ap-

" That the Infant shall

plication moderated, viz.

not marry, with the Committee's Privity, without

the Consent of the Court."

has been determined, that- a general Act of

It

Pardon, though with an exception of contempts,

extends to pardon contempts in marrying Infant

Wards

of a Court of Equity

f
.

Agreements before Marriage on behalf of Infants,

by Parents and Guardians, or by the Infant alone %

have been held binding on the Infants

11

but,

it

seems, a female Infant cannot be irrevocably bound

by an Article entered into during minority, as to

real Estate, but may refuse to be bound, and abide
by the Interest the
nothing but her

Law

own

See Eyre v. CounteRS of

Shaft,burv, 2 P. Wms. 102.
e
1 P. Wms. G98.
f
Phipps v. Earl of Anglesea,
1 P. Wms. 090.
.
Williams v. Chitty, 3 Ves.
545. see on this subject, Slo-

combe

against Glubb, 2 Bro.

C. C. 551.
h
Anslie v. Medlycott, 9 Ves.
;

and

lane, 1
see what

Dinnford and
Bro. C. ( 100; but
see

is

It has,

'.

that a female Infant

19

upon

her,

which

act after the period of ma-

jority, can fetter or affect

determined,

casts

said of that case ia

however, been

may by

a Join-

Carruthers v. Carruthers,4Bro.
C. C. 510. Canpel v. Buckle,
2 P. Wms. 244. J.acy v. 3Ioore,
3 Bro. P. C. 514. Price v.
Srys, Barn. 117. Seamer v,
Bingham, 3 Atk. 5(5.
Clough v. Clough, 5 Ves.
717. 8. C. before Lord Thurlow,
'

mentioned, 3 Woodeson, LecL

453. in note; and see what
said

in

is

Durnford and Lane*

\ Bro. C. C. 11$.

INFANTS.

turebc barred of her right

to

be competent and certain*,

Dower
upon a remote contingency,
but

And

though,

Dower,

as

not certain,

it'

283

if

in general, a

certain

as

hel

only to take place

will not bind

it

same

the

if

Father or Guardian,

on the Marriage of an Infant Child or Ward, can?

not, it seems, by Agreement bind the Interest of the
Infant in its real Estates, unless where there is
issue of the Marriage, and for that reason, Acts of

Parliament have in such cases been resorted to

make an

in order to

yet been held, that a

effectual Settlement

Feme Infant

":

",

has

it

seized in fee,

a Marriage, with consent of her Guardians,

on

may

covenant, in consideration of a competent Settle-

ment, to convey her Inheritance

and that

Court of Equity

will

to her

Husband,

execute the Agree-

ment, though no damages could be recovered at

Law

But

this doctrine

Lord

not fully settled.

is

Ilardwicke thought Connelly. Buckle went a great

way,

as

it

related to the Inheritance of the

Wife

V but there are cases," he observed, " where the

Court

will do

it:

as if the

Lands of the Wife were no

more than an adequate consideration for the Settlement that the Husband makes, and if after the
Marriage the

who would
them by

Wife should die and leave Issue,

be entitled

to

the Settlement,

it

Portions provided for

would

in that case

very reasonable to affirm that Settlement

k

v. Drury, or
Karl of Bucks", by
which name it is reported, in
5 Bj-o. P. Cases 570.
See Canruthers v. Carruthers,4 Bro.C.C. 500: and see
Smith v. Smith, 5 Yes. 189.
Clough v. Clough, 5 Ves. 710.

See

Prury

'

v.

Drury

11

be

."

m As in Blois v. Lady Here2 Vera. 501.

"Harvey v. Ashley,3Atk.613.
.Cannellv. Buckle, '1 P.

ford,

Wms. -43. approved in 3 Atk.

615. but see 1 liio. 100. and
5 Ves. 717.
p Harvey and Ashley 3 Atk.
G15.
i

EQUITY JURISDICTION,

S4

There

cases

are

to

in regard

may bind

tracting for an Infant Child

if

riage,

but then

the Child,

Child claim any thing under

the

the Settlement

Portions

where a Father con-

in possession or Contingency*,

especially

Money

it

must be

before

and in consideration of the Marriage;

Mar-

for the

Court will not suffer her to claim a benefit one

Indeed,
way, and not to be bound the other'
cases,
if a Parent or Guardian could not, in such
1

contract for the Infant, so as to bind the property,

the Husband, as

it

is

a personal thing,

entitled to the absolute

diately

And

Property in

would be
imme-

it,

upon the Marriage

though in cases of

this kind,

Parents or

Guardians act fraudulently ox corruptly, the Marriage Agreement is not therefore to be set aside, or
the Children to be stript, but the Father or Guardian will be decreed to
the

Husband

and reasonable
date

for instance,

one-third, and she has a Jointure

intrusts

Judgment

If,

female

Gentleman of great Estate, the

to her of one-tenth

Law

Infant

the Jointure will not always invali-

Infant, marries a
is

made

must be fair
but inequality between the

a Settlement.

Dower

and

*.

Settlement to bind an

Dower and

satisfaction,

a Party to the Fraud will be

if

do so likewise

make

of

the

value

made

yet as the

Parents and Guardians with the

for the Provision of Infants,

she can-

not set aside the Settlement".

* Harvey v. Ashley, 3 Atk.
613. Theobald v. Delay, 2 P.
AVms. C08. S. C. 1 Inst. 101.
H

Seamer

y.

Atk. 55.
' 3 Atk. 613.

Bingham,

'Harvey and Ashley, 3 Atk.

611.
'

Williams against Williams,

1 Bro. C. C. 152.
*

3 Atk. 612.

INFANTF.

And

those cases where the Settlement

in

voidable by
the Act3

the

Infant,

may be

it

confirmed by

of the Infant, after attaining

by receiving Interest", or accepting

is

full age, as

a Jointure for

a year and an half*.

Male Infant marries an

Ifa

by Settlement covenants
settled to certain uses,

nant y

who

adult female,

that her Estate shall be

he

bound by her Cove-

is

The favor shewn

maybe

to Infants

traced in a

variety of cases, and particularly in the Practice of

the Court, as will be seen hereafter.

Ifa Legacy

one way, and

in

given for the benefit of an Infant

is

it

cannot be so applied,

way

applied for his benefit in another

the Legacy was given to put

he became a Lunatic,

it

him

may be

it
:

as

where
and

into orders,

was applied

in hissupport*.

have been formerly the Practice, to

petition the King to direct his Judges to take a
It appears to

This Petition,

Fine or Recovery from an Infant.

referred to his Chancellor for his Report

the

King

as

to the propriety of

for;

and

if

after

what was thus petitioned

argument before him, he reported

was reasonable, the King granted

But Common Recoveries, and
Seal*.

that the Petition

a Privy

now

Fines suffered by Privy Seal, are

and private Acts of Parliament

instead

Thoruburgli,

v.

Smith

v.

Low,

Atk.

490.

Slocombe

Bro. C. C. 548.

Barton

v.

Cooke,

5 Ves.

4G3.

- x

to

Hervey v. Ashley, 3 Atk.

607, mentioned, 2 Ves. 671;
see

had recourse

Franklin
Vera. 132.

and

are

disused,

v.

Glubb,

Vid. Sir

Humphry Mack-

461
Mr. Raithby's note.
b
Hesketh v. Lee, 2Sannd.
worth's- Case, 1 Vera.

96.

ft.

EQUITY JURISDICTION.

280

5.

PERFORMANCE OF AGREEMENTS.

SPECIFIC

The

Chancellor to enforce

Jurisdiction of the

the Specific

Performance of Agreements, forms

one of the great heads of Jurisdiction in Courts

of Equity, and in the opinion of Lord Hardwicfcc,

" the most useful oneV'

By

the

Common Law,

every Covenant and Agreement, where there was

no proper Conveyance

Right of

transfer the

to

was but personal, and being

only personal, the party, if it were unperformthe thing

itself,

could only recover

ed,
fore,

man covenanted

damages.

to settle his

Marriage, or to convey them

deration, the

mages

at

Lands upon

valuable consi-

Covenantee could only recover da-

Law

breach of such Covenant

for the

but had no remedy there,

Thing

for a

there-

If,

itself.

for the

Settlement of the

much

This was thought

complete Justice, because the party

entered into the Covenant,

bound not only

to

was

in

actually to perform

who had
conscience

make compensation

breach, where he could not perform

it,

where

it

was

than

less

it,

but also

in his

power,

and, therefore, a Court of Equity interposed

The earliest

the

for

b
.

trace of the Equitable Jurisdiction

of the Court of Chancery, in decreeing Agreements^

is

supposed to be, in a case stated

Penn

v. Lord Baltimore,
440.
b
See on this subject Alley
Deschamps, 13 Ves. 226".

1 Ves.

v.

in the Year

Book

Mitford's Pleadings, p. 108.

1 vol. Sch. and Letr. 129. Lex
Pnetoria, MS.

PERFORMANCE CF AG

IFIC

of 8 K.
1

1.

where

b.

BE U

It

2S7

E2i TS.

said by Genua/, " that

it is

it

promise to build yon a house, and do not perform

my

yon

promise,

have your subpana'

Chief Justice,

Fincu.v,

upon the

And

the 21 Hep. 7. speaking

in

different remedies given in the Courts,

for

non-performance of contracts, observes, " that

if a

man

bargain with another that he shall have

his land for jlO,

and that he

by such

estate therein

a day,

make him an
and he do not make
will

the estate, an action upon the case

be observed
ges

At whatever time
into

by competent

to

may compel

to execute the estate, or imprison

very clear, that

it is

he shall only recover dama-

in that,

now

but

but by Subpoena the Chancellor

him

lies

him."

the Jurisdiction began,

if

it

is

a contract has been entered

and

Parties,

is,

in the

nature

and circumstances of it, unobjectionable, it is as

much of course in a Court of Equity, to decree a
specific performance, as

Law

The

d
.

such cases

Court,

and so

it

it

is

has

to give

is

it

at

said, has a discretion in

but

damages

it is

not an arbitrary

and capricious, but a regulated and judicial, discretion^ a discretion, governed by established
Rules of Equity

been said

It has

rectly
c

*.

and generally speaking, cor-

that in cases of Agreements, before

',

Sed.quee, if such an agree-

meat would now be enforced,

d

Hall

35; and see Buckle v. Mitchell,

18 Ves. 111.
B

see post.
v.

Warren,

9 Ves.

'White

v.

Dodsley

Ves.

Ambl. 400.

Damon, 7

Ves.

Duke

See 1 Ves. 2? J. and

and Bea. 5'27.
(

Goring

v.

Naslv,

3 Atk.

188.
h

C08.

Lord

v.

Kinner>ley,

Marquis of Normanby v.
of Devonshire, 2 Ireew.
216. "1 Vern. 159.
'

EQUITY JURISDICTION.

233

was sent

Soyncrs's time, the Party

recovered any thing by

to

Law, and

way of damages,

he

if

the Court

of Chancery entertained the Suit; but there

must

have been exceptions to this Rule, for there are

cases where the Party maybe relieved in Equity,

though no damages could be obtained at Law

as where a feme Infant seized in Fee, on a Mar:

riage,

with the consent of her Guardian.?:, cove-

nants in consideration of a competent Settlement,

convey her Inheritance

to

to her

Husband, Equity

will execute the Agreement, though no action

So, if an
would lie at Law to recover damages k
.

Agreement be made for the Sale of an Estate, and

the Vendor dies before the period when the Estate was to be conveyed, the Heir is bound to
So, upon an
convey, though no action lies.
Agreement to assign a chose in Action, Equity
will relieve, though no damages at Law would be
given for the breach of the Agreement; and there

which might be menthe proposition, therefore, of Lord Ray-

are other cases of the kind

tioned

mond

':

m
,

that a specific performance shall never be

compelled, for the not doing of which, the

Law

would not give damages, seems too broadly

down.

laid

The effect
of Land,

of a mere contract for the Purchase

is in

many

Law, from what

it is

respects

very different at

in Equity.

At Law,

the

Estate remains the Estate of the Vendor, and the

k
Cannel v. Buckle, 2 P.
Wuis. 244. see ante p. 282, 3.
See Wiseman v. Roper,
1 Ch. Rep.
158. Cary 84.
Attorney General v. Day, 1
1

Vcs. 222. Whitmill

ib. 258.
m Dr.

v.

Farrell,

Betresworth

Dean and Chapter of St.

Select.

Cas. in Ch, 08,

and

Paul's,

1:

Money

r v p l B ro u

Equity; there, in general,

contracted
tion,

to

consid

is

sequences

:red as

arise,

Con*

as

it is

had been

contract, and previous

qs a Trustee for the

considera-

and

so,

as

the time to

if

the

whether

it

from the time of his

Conveyance, consi-

for the

Purchaser, and the

Purchase Money, considered

The

Vendor*.

vided a good Title can he

made

v
,

is

Property of the Vendee

chargeable,

is

is

to

dered only as a Trustee

the Ileal

Rule, that what

foT a valuable

if it

as to the:

not so in

is

is,

281)

d<>nr\ and nearly all the con-

Freehold or Copyhold",

Vendee

It

had Ueen made at

The Vendor of the

Vendee'.
b/e

be done

e m i:nt.

it i;

Vendee

of the

that

KC or a

"'',

cteviseablc

Estate, pro-

considered as

and vendible,

by him,

even

under

general and sweeping words*, will be considered

as Assets

y
.

money,

So,

Land,

is

articled or directed to be laid out in

considered as Land, and has

dents of a real Estate

as personal Assets

7 Ves.
v. Slade,
and Bee the Reasons in

Cave

a.

"

id Holford,

!iro.

Husband may be Tenant

v

Seton

'274.

the inci-

no longer consid

It is

all

See lb. and see

Monk, 10

P.

ton

Brome

and Slade,

C. 602.

274.

4 See Frederick
v. Frederick,
P. Wms. 713. Lechmere and
Earl of (Anil,!.', 3 P, Wms.

x
Potter v. Potter,
437. (Gibson v. Lord
ford, I Ves. 494.
Paine
v. Meller,
302.

215. Bash

v.

Dalway, 3 Atk.

5;:3.
'

Attorney General and Day,

220 ; and see 3 Atk.

'

Seewhal

Sir

7 Yes.
1

Ves,

Mountfl

Ves.

Thomas Sevell

says in Fletcher

\ es,

and.

Ves.

v.

Ashburner,

G87.

1 Bro. C, C. 497.

Hinton v. Hinton, 2 Ves.

632. S. C. Ambl.277.
Green v. Smith, I Atk.
573. Polexfen v. Mooie, 3 Atk.
273.

* Earl of Pembroke v.
Bowden, 3 Ch. Rep, 115. S. ( '.
2Vem. 52. Lechmere v. Earl
of Carlisle, 3 P. Wms. 217.

VOL.

I.

EQUITY JURISDICTION.

290

by the Curtesy of it b though

(a singular decision,

constantly adhered

to,

but never approved

Dower out

cannot claim

Land by Will

of

Money,

Testator has described the

it

and by a Will

as personal Estate,

not attested by three Witnesses

much
may pass

as so

agreed to be laid out in Land,

under the Will

Wife

indeed, the

If,

Money under

as

,)

passes as

It

and will not go

a general bequest to a Legatee

Money

it

but without such

a particular interposition of the Testator, manifesting

his

intention,

it

remains as Land, and

belongs to the Devisee or Representative of the

Real, not of the personal Estate
If

8.

upon an Agreement for the purchase of an

any casualty happen after the time ap-

Estate,

pointed for the payment of the purchase

or as

some

bears the loss

k
;

Conveyance

Purchaser

and, on the other hand, he will be

principles apply also as

Representatives of the
Sweetapple

v.

Bindon, 2

between the

Vendor and Vendee

the

menEdwards
v. Countess of Warwick, 2 P.
Wms. 171 and see Wheldale

222. and the cases there

Vem. 536. Otway v. Hudson,

2 Vera.583. Chaplin v. Chaplin, 3 P. Wms. 232. Allen v.

tioned,

Allen, Mos. 123.

c
See 3 P. Wins. 234.
4 Crabtree
v. Bramble,
3
Atk. 687.
e
Green v. Smith, I Atk.
573. Lingen v. Sowray, Eq.
Cas. Abr. 175. confirmed 3 P.
Wms. 221.
Lech mere v. Earl of Carlisle, 3 P. Wms. 221. in note.
8
Vid.uoteC. to 3 P. Wins.

v.

'

the

any benefit which may accrue.

The same

cases say, between the Articles for the

purchase and a

entitled to

Money h

particularly

Partridge, 8 Yes. 235. overruling Walker v. Denne, 2Ves.

Jun. 170, 172.
h
2 Atk. 400. Stint v. Bailey,
2 P. Wms. 220.
White and Nutt, 1 P.
'

Wms.

and see Pool v.

61
Shergold, 2 Bro. C. C. 1 18.
Paine v. Meller, 6 Ves, 349.
k
Ves. 349.
;

PERFORMANCE OF AGREEMENTS.

SPECIFIC

Death of

either of the Parties to the Contract not

afifectingit
lateral

291

The Heir of the Vendee,

Heir"

,)

(even

a col-

on the com-

entitled to insist

is

pletion of a Contract to purchase Land, out of the

personal Estate of his Ancestor

the

",

and this, though

Ancestor would have had

an Estate Tail

which he might have barred

good

Agreement

one then entitled

bound

to

perform

may

tative

if

there

for

q
,

it;

enforce

Money

r
;

an

is

the Sale of an Estate, by-

of the Vendor

the Heir

is

and the personal Represen-

it

against the

such personal Representative

Purchase

not a

is

In like manner, where there

'.

effectual

but

he can neither claim the Estate, or the

title,

Money

Vendee

entitled

is

and

to

the

but where the Court holds

the Contract cannot be performed, or ought not

though

to be performed,

might, there the real

it

Estate belongs to the Heir of the Person contracting to

sell

Legavd

47S.

(..ill

s
.

If the

Land agreed

v. Hodges, - Ves.
and Vermedun, 2

Seton

Slade,
Lifebury, 2 Eq. Abr. 82; and see
Jackson against Lever, 3 lira.
C. C. G05. a very hard case; see
also Lacon v. Mertins, 3 Atk.
1. and Potter v. Potter, 1 Ves.
437.
ai
Lingen v. Sowray, i P.
Wms. 172. S. C. in Gilb. 91.
and in 10 Mod. 39. Count ss of

Freemj

199.

Ves. 274.

v.

Winged

v.

Warwick and Edwards, 2 P.

Wins. 271. approved, For. 90.
Kettleby v. Atwood, 1 Vera,
299, 471. Vernon v. Vernon,
*il>.

be sold, be

Bo

n
Seton v. Slade, 7 Ves.
274. liuckmaster v. Han op,
7 Ves. 341. andS. C. 13 Ves.

and see Langford and

2 P. Wins. 629. Parson*
and Freeman, Ainl.il. Ub\
172.

Pitt,

Vid.

Green

P.
v,

Wms.

719.
Smith, 1 Atk.

573.

1 Anstr. 14.

Baden v. Countess of Pem-

broke, 2 Vera. 315. Lacon t.

Mertras, 3 Atk. 1. 7 Ves. 425,
Attorney General v. Duv,
1 Ves. 220.
*

Wms.223

to

EQUITY JURISDICTION.

292

rough English Land, the younger Son,

after the

death of the Father, will be bound to carry the

Agreement into

and

effect';

cases of this

in all

may

description, the Creditors of the Bargainor

compel the Heir

convey the Land

to

Such

is

the converting effect of a mere Agreement, that a

Covenant by a Joint-tenant

to

sell,

severs

Law

Joint-tenancy in Equity, though not at

And where

a Surrender

by

Tenant

If a

covenants to

w
.

Copyholder, would

bar the Widow's Fiee Bench, a Contract to

Surrender, has the same effect

the

sell

or

x
.

having a power to grant,

for Life,

make such

a grant; this will,

Equity, bind the Remainder-man,

it

iu

being in the

nature of an execution of a Power.

So,

if

Tenant

for Life agrees to

make

Lease

pursuant to his power, the Remainder-man

bound

And

y.

in like

tures, will bind the

manner, contracts

for

is

Join-

Remainder-man, though made

only in pursuance of a Power to make Jointures.

Contracts for a valuable consideration to execute
a Power, or to

make

a charge of

any description

under a power, are also binding on the Remainder-

man

A
'

z
.

parol Agreement for a Lease made by a

Hinton

v.

Hinton, 2 Vern.

640.
v
Best and Stamford, 1 Salk.
35*.
w
Browne v. Raindal, 3 Ves.
257. and
v.
see Partriche
IVnvlet, 2 Atk. 54. contra diet.
2 Vein. b-:.

x
Jlinton v. Hinton, Ambl.
277. S. C. 2 Ves. 633. overruling Musgrave v. Dashwood,

2 Vem. 63.
7
Shannon v. Bradstreet,
1 Sch. and Lefr. 52.

lb. 60.

SPECIFIC PERFORMANCE OF AG RE L U

Tenant for

Life, in

23

:.N IS.

pursuance ofa Power,

if partly

performed, might be enforced against theTenant far

Life

but itseems questionable, whether

be enforced against a Rcmaindtr-man;

the Tenant for Life
will be
is

seen,

Tenant

done

is

for Life,

Upon

principally, as

it is

which does not apply

which

to the

Re-

Remainder-man,

If the

though

for

on the ground of Fraud,

personal, and

mainder-man

bound,

is

could

it

after the

acquiesced,

it

would be

the sameprinciple that what

considered as done,

the personal Estate ofa

it

death of the

is

different1*.

agreed to be

has been holden that,

Man, who

in consideration

of Marriage with an Orphan ofa Citizen of London,

covenanted

to take

up

his

Freedom of the City,

should be divided according to the Custom,

same manner,

as if the

in performance of his
It has

what

is

freedom had been taken up

Covenant c

been aid, that

in general,

is

considered as done

proper so to qualify the Rule

it

is

Agreement,

not without
for instance, to

its

Rule that

seems

it

though

it

ope-

have been men-

An

convey, does not affect

and

exceptions.

a subsequent Purchaser, without

*
Shannon r. Bradstreet,
Sch. -and l.efr. 72.
b
lb. 73. Styles v. Cowper,
3 Atk. 692,

for

rates in the various instances that

it is

contracted to be done for a valuable con-

sideration,

tioned,

in the

of the

notice

v.
Frederick
Frederick,
710. S. C

P. Wins.

455. and 4 Bro. V. C.

d

Ants, p 289

'

EQUITY JURISDICTION.

294

Agreement '; nor has

Covenant

a Recovery

or to suffer

5
,

to levy

aFine f r

the same effect as a

Fine or Recovery levied or suffered; but

Covenant
Court

Heir

will force the

bargain

Rule

an Entail

relates to

made by

his

to

the

the

comply with a

Nor does

'.

the

Dower, the Wife not being

hold, in regard to

entitled

Equity,

in

to

Ancestor

if

out of an Estate, agreed only to be

it

purchased by, and not actually conveyed to her

Husband'.

So,

Body

if

Power, make an Agreement

Lease, and the fine

is

corporate, having a

Renewal of a

for the

and a new member

paid,

introduced amongst them,

it

may be

is

doubtful,

whether the Agreement could be enforced against

such new Member k

He would

titled to his proportion

Renewal

With

certainly be en-

of the Fine, paid on the

1
.

these preliminary remarks on the effect

of a mere Agreement in Equity,

we may now

pro-

ceed to consider, what Agreements will be decreed

EchlifFe v.

Ves.

2<J7.

Baldwin,

and see

diet,

10
in

Ramsden v. Hvlton, 2 Ves.

309. Finch and' Earl of Winchelsea, 1 P.Wms. 279.
r
See Frederick v. Frederick,
1 P. W. 720 see also Prec. Ch.
279. and 425. and 2 P. Wms.
626, 052. 2 Vern. 300; and
see Ford Coventry's Case, best
reported, at the end of Francis's Maxims in Equity.
6
See Collins and Plummer,
1 P. Wms. 104. and Ford Coventry's Case at the end of
;

Maxims in Equity,
Attorney General and Day,
1 Ves. 223. Cotter and Layer,
2 P. Wms. 025. and what is
said in Kolt v. Holt, 2 P. Wms.
620. and L Atk. 9. Ambl.
278. 1 Dick. 34. 3Bro. 53S.
h
See 1 Vern. 13, 440. 2
Vern. 133, 702. and the cases
Francis's

cited before in note 4.

1

See Crabtree and Bramble,

3 Atk. 687.
k

See Dr. Wynne

Atk. 470.
>lb.

ton, 3

v.

Bamp-

PERFORMANCE OF AGREEMENTS.

SPECIFIC

The

be specifically performed.

to

2<J5

Kule

general

such Agreements must be accordI

ing to the forms prescribed by Law., and betw
Parties, able and willing to contract, and that the

seems

to be, that

Agreement must,
and fair m

The

also,

be certain and defined,

<<jual

doctrine

Parties to contract,

ability of

Equity as to the

in

general, governed

is, in

by the

Rules of Latv on that subject, except in regard to

Infants and
lias

The doctrine as

coverts.

to Infants

already been adverted to, and the contracts of

Feme
is

Feme

upon

coverts, will be observed

enlarge upon

not, therefore, necessary to

topic,

hereafter.

It

that

except only to observe, that a specific per-

formance of an Agreement will be decreed against

one,
if

who

after the

the legal Estate

the legal Estate

With

Agreement becomes a Lunatic,

is

is

vested in Trustees, but not

vested in the Lunatic himself

regard to the forms required by

Agreements,

it

is

to

be observed, that a

Agreement concerning personal

if

may be

discharged by Parol

dize;

as a Bargain for

damages

in these cases

be recovered

in

an

Owen

v.

Parol

any

to

binding, and

Com

relate to
v
,

Merchan-

or for Stock; for

may, with equal advantage,

Action, and Corn or Stock

m Vid. Lord Walpole

v.
Lord Oxford, 3 Yes. 420. Buxton and Lister, 3 Atk. 380.
Underwood and Hitcbcox, 1
Ves.279.
n

in

performance of con-

which

Chattels, oy

is

Law

but in general, a

Bill will not lie for a specific

for

Estate

reasonable and proved,

extent,

tracts

if
11

Davis, 1 Yes. 82.

Gibbons

v.

Caunt,

847, 8, 9.
p

Cud and

Rntter, Vifl. Abr.

Contract and Agreement,

(M.) C. 21. S. C. IF. Wma,
570.

tit.

EQUITY JURISDICTION,

296

bought

Such

q.

decided at La\v

be

to

cases, therefore, are left

r

Sir Joseph Jekyil decreed a

Specific performance,

in the case of a

Chattel

but Lord Macclesfield reversed his decree, and

from that time, the Rule of the Court has been not
to retain such a Bill

Cases of contracts

purchase of Lands, or things that

are of a permanent nature, and
to purchase them,

the Land, and

matters in the
ing

is

way

general

this

Contracts

for

it

relate to Realty,

person agrees

if a

on a particular liking to

is

quite a different thing from

But notwithstanddistinction between personal

of Trade.

Goods, and Contracts

there are cases where persons

cific

for the

may

Lands,

for

enforce a spe-

performance of Agreements relating to Perv

sonalty

but the Court will- weigh with great

nicety, cases of this kind w

as

where there were

Articles for the Sale of 800 ton of Iron, to be paid

for

by Instalments,

in a certain

number of

a specific performance was decreed

Man

*.

years,

So,

if

contract for the purchase of a great quan-

tity of

Timber, as a Ship Carpenter, by reason of

the vicinity of the Timber

to clear his

Laud, agrees

to apply

the

bandry

in

Land

or

if

Man

wanting

to sell his Timber, in order

to a

these cases,

particular sort of
as

Hus-

nothing can answer

the Justice of the Case, but the performance of

q
See Nutbrowne v. Thornton,
10 Yes. 101 and see Mason
and Armitage, 13 Ves. 37.
Buxton v. Lister, 3 Atk.
;

383,
8
In

Wms.

3 Alk. 083. and see Capv. Harris, Bunb. 135.

v
See Buxton v. Lister, 3
Alk. 384.

per

Mb.

Cud
070.

v.

Rutter,

IP.

385.
Taylor v.
trailed, 3 Atk.
x

Neville,
38-1.

men-

SPECIFIC r-ERFORMAXCE OF AGREEMENTS.

$07

the Contract in specie, a specific performance,

seems, will be decreed

>.

Statute (29

the

JJy

Qetion shall

it

Cur.

3.

9.

whereby

be brought,

4.)

8.

no

charge a

to

person upon arty Agreement made upon consideration of Marriage, or

upon any Contract

or Sale

of Lands, Tenements, or Hereditaments, or any"

concerning the same, an less the
upon >vhich such action shall be.
brought, or some Memorandum or Note thereof,
is in
Writing, and signed by the party charged
interest

in

or

Agreement

therewith, or

some other person thereunto by him

lawfully authorized.

The
riage,

reason of this provision, in respect to Mar-

seems

supposed so

no case can there be

to be, that in

many unguarded

expressions and

promises used, as in addresses

in order

to

Mar-

where mauy passages of Gallantry usually

occur'.
An Agreement, therefore, made by the
riage,

Husband
Writing,

Nor

before Marriage, and not reduced into

is

within the Statute

will a written

the Mar-

recognition after

the case out of the Statute

asre

Promise before Marriage, take

riage, of a Parol

But

b
.

a Letter containing the terms of a Matri-

Agreement takes the case out of the

See Buxton

v.

Lister,

Atk.385. That an Agreement

for the Sale of Timber need
not be in writing, see 1 Lord
Raym. 182, but see Crosby

P.
h

Montacute

Wms.

v.

Statute'.
Maxwell,

618,

Randall

v.

Morgan, 12

V.

9.

* Vid.wbat
is said
Arg. in
Montacute v. Maxwell, IP.

Rutcft7D; but see Hodgson

inson, Vin. Abr. tit. Contract
and Agreement, (11.) C'a. o4.
r
Bird v. Blo&e, 2 Ventr.
361. Moarev. Hart, 2 Ch.-Refi.
147. VVankford r. Fotherby,

Wins.

2Vern.S22.

and Wadsworth, 6
and

also 11

(319.

East.

(JO'2.

EastJ 362.

EQUITY JURISDICTION.

298

Marriage, however,

not considered as a paFt

is

performance of a parol agreement, made before

Marriage, so as to take

Frauds

out of the Statute of

by Auction

Sales

Frauds

it

b
,

within the Statute of

are

except Sales under a Decree

c
,

Indeed, wherever the substance of the statute

has been complied with in the material part, the

forms hav^ never been

much

insisted on

d
.

therefore, a Letter contains the terms

If,

of the

Agreement, or if it refers to another Paper, which

contains the Terms, parol Evidence will be admitted to shew what was the thing so referred to%

and renders

it

a sufficient written

a Letter has been held binding,

son

did not intend

to

Letter sent to an Agent

Agreement

and

though the Per-

be bound
h

g:

and even a

or other third person \

has been considered as a sufficient signing within

the Statute.
third person,

Whether a note, written in the

viz. " Mr. T. proposes, &c." (mak-

ing thereby an offer to purchase), amounts to a

Montacute

v.

Maxwell,

1 P. Wms. 618. Taylor v.

Beech, 1 Ves. 297; and see
diet. Redding v. Wilks, 3 Bro.

C.C.400.Du;idassandDutens,
Jun. 199.
Blagden v. Bradbear, 12

1 Ves.
1

Ves. 466.
c
Attorney General v. Day,
1 Ves. 218.
d
Welford v. Beazely, 3Atk.
503.
e
Clinan v. Cooke, 1 Sch.
and Lefr. 33. overruling what
is saidin Binstead v. Coleman,

Bunb. 65. and the dictum

in

Parteriche v. Powlett, 2 Atk.

383; and

see Brodie

and

St.

Ves. Jun. 326.

f
Tawney against Crowther,
3 Bro. C. C. 161, 319.
g Welford v. Beezely, 1 Ves.
8. S. C. 3 Atk. 503. see what
,is said 3 Taunt. 172.
h
1 Ves. 8.
Moore v. Hart, 1 Vern. 110-

Paul,

Welford and Beazeley, 3 Atk.

v. Tombs, 2 Anstr,

503. Cooke
420.

SPECIFIC PERFORMANCE OF AGREEMENTS.

contract in Writing signed

Frauds,

not decided

is

Where

there

is

contents, signs as

within the Statute of

k
.

Agreement

a compleat

and a person who

ing,

299

is

aity and

a Witness only,

in writ-

knows

the

this has

but

held a sutHcient signing within the Statute';

altering the draft of the conveyance, has not been

considered toamountto a signing of the Agree-

ment m ; and though the Party

writes

ment,

be also signed

ineffectual, unless

it is

With

respect to the signing

an Agent

by

holden,

tion,

lawful///

is

Agent need not

considered as the Agent of both Parties,

contains in
else shews,

the

itself,

or

Buyer

and

note or

his

by reference

what the Agreement

sidered as a

There

are,

as to

be decreed

to

v.

Lands

Ch.
_"

77.

Bawd

Tumour,

18

v.

a v.

Amhurst, Prec.

V.'aller v.

Cox, Vin. Abr.

is

not in

1*.

writing,

as

tit.

it

will

where a parol
is

Contract and Agreement

v.

1'reco-

Clinan v.
Cooke, 1 Sell, and Lefr. 31.
The note in 7 fast, 5C5, stating
that the Agent's Authority
must be in writing, is a mistake.
p Coles v. Trecothick,9 Ves.
thick,

252. S.

i.

sufficient to

(H.) Ca. 45. Coles

40-'.

VOL.

something

been partly performed, and

Beazely, 3 Atk.
503 ; and see Coles v. Trecothick, 9 Ves. 2^4.
m Hawkins v. Holmes, 1 P.
1

if it

has been con-

is,

memorandum

be performed

Agreement has
Morison

however, Cases where, though an

Agreement

Ves. 175.
AVelford

receipt

to

satisfy the requisition of the Statute

Wms.

has been

it

Auctioneer, on the Sale of Estates by Auc-

the Seller and

".

of an Agreement,

authorized,

that the authority of the

be in writing

An

it

the Agree-

Heelis,

u6*

Ves. 250.

C. MS. Emmerson
2 Taunt. 38.

r.

EQUITY JURISDICTION.

300

admitted, or proved

as

may be

it

parol Evidence produced

by

the cause

Master

5
.

In these

cases,

ground of Fraud

1
,

relief

administered on the

is

in suffering the Party to pro-

ceed on the Agreement, and

tiously, insist

on

its

then,

unconscien-

imperfection, and

Equity

of Fraud cognizable only in

Mr.

hearing of

on the

on some occasions, before the

or,

such cases,

in

Justice Buller observed, in

is

a species
It is true,

one or two cases",

that part performance takes a case out of the Statute, at

Law,

as well as in

Equity; but he

wards abandoned so untenable a position

Common Law
Equity. It

is

deference be

it

of

not their proper sphere of exertion.

doctrines of Equity cannot be well

stooct,

greatly in Courts

have never shone

said)

The

Judges, (with

after-

under-

but by long study, and continual practice.

Lord Eldon, speaking of Mr. Justice Buller, observed, " With all the veneration and respect due
to so great a judicial character, the point in which
seems to have

it

q See Daniel
1C Ves. 249.
r

1 Ves. 221.

Allan

v.

v.

failed,

Davidson,

Bower, 3Bro.C.

C. 149. S. C. noticed 1 Sch.

and Lefr. 37. Boardman v.
Mostyn, 6 Ves. 4C7. but see
3 Bro. C. C. 149. and 1 Ball
end Beatty, 265. and Savage
against Carroll, 1 Ball and
Beatty, 551. in which case it is
laid down that an Inquiry or
Issue is only directed, where
from contradictory Evidence

that

is,

he thought too

a doubt arises in the mind of

the Court, or Witnesses being
discredited after the case ha*
been proved, that an Inquiry or
Issue

is

directed.

Sch. and Lefroy, 130.

u
1 Bro. C. C. 417.
v
Brodie v. St. Paul, 1 Ves.
jun. 333 ; and see 1 Bro. C. C.
417.
w
See what is said in Cooth
v. Jackson, 6 Ves. 39. O'Herlihy v. Hedges, 1 Sch. and
Lefr, 123.
l

BPEGIFIC I'EBl'OUMANCEOf
confidently, that

AGREEM ENTS.

understood

lie

the Court of Equity \"

The first case in which

reli

ground of part-performance,

all

'i"l

the doctrine of

-i'

was given on the

is

frequently laid*

some

to have been Foxcraftv. Ly*ter*;but from

Reports of that Case',

seem*

rather

it

have

to

proceeded on another, and a very indisputable

ground

on the fraud of the Heir,

the Lessor,

Certain

who was

it is,

dying, executing a

however, that very soon

passing of the Statute ofFrauds

wisely, or not, has,

therefore,

ment was, and

that

luntary

Act%

the

after

but whether

sometimes, been questioned.

be clearly shewn,what the Agree-

that

it

has been partly performed

',

that an act has been done, not a

is,

to the

it

Lease.

this species of

equitable relief was administered:

If,

preventing

in

mere vo-

or merely introductory or ancillary

Agreement

d
,

but

part execution of the

substance of the Agreement, and which would not

have been done unless on account of the Agreement', an Act, in short, unequivocally referring

and resulting from, the Agreement

to,

and such,

that the Party would suffer an Injury, amounting

Fraud

to

by the Refusal

Marquis of T^wnshend v.
room, ti Ves. 833.
r
See what Lord Redesdale
says, Bond and Hopkins, I Sen.
and Lefr. 403. and Mitfqrd's
*

Treatise.

Citi 12 Vera. 456.

1
See the Report of the ease,
in Gilbert's Eq. Reports, p. 11.
and Colles' Pari, cases, 10S.

to

execute that Agrec20 Ch,

2. c. 3.

As in Robertson agairist
John, 2 Bro. C. C, 140.
c

See

Bro.

C.

('.

Sr.

412.

Lacon v. Mertins, 3 Atk. 4.

e
Cooke v. Tombs, 2 Anstr.
424. Gunter against Hal
Ainbl. 586.
Clinan v.
and Lefr, 41.
'

Cooke,

Soli,

EQUITY JURISDICTION,

502

such Case, the Agreement will be decreed

to be specifically performed 5
Wherever, therefore, a parol Agreement is
sought to be established on the ground of part

ment:

in

performance,

if

must deny the

is

acts of part

performance

The ground on which

cases

is,

pleaded, the answer

the Statute

h
.

the Court acts in

these

Frauds in refusing to

as before observed,

perform, after performance by the other Party

and not because the Agreement was not within

the original conception of the Statute

k
.

The

allowing any other construction upon the Statute

of Frauds would be to

make

it

guard and pro-

tects n to Fraud, instead of a security against

it,

as

was its design and intention

It was the opinion of Lord AlvanUy,
.

that the

Court had gone rather too far, in permitting part

performance and other circumstances, to take
cases out of the Statute, and then, unavoidably
perhaps, after establishing the Agreement to
admit parol

evidence of the contents of that

" Part performance might be evidence of some Agreement, but of what must be

Agreement.

parol Evidence. I always thought/* says he,

" the Court went a great way. They ought not to

left to

s Gunter v. Halsey, Ambl.

586. Vid. Frame and Dawson,
14 Ves. 38(5. and Lewis and

Clitherow.MS.The case contra.

and Whiting, 1 Vern.
151. cannot be considered as
Law.
h
Bowers v. Cator, 4 Ves. 91

Ilollis

Wills
378.

v.

Stradling,

Ves.

Whitbread against Broek1 Bro. C. C. 413. Hare

v. Shearwood, 1 Ves. jun. 243.
Buckmaster v. Harrop, 7 Ves.
'

hurst,

346.
k
'

1 Bro. C. C.

Walker

100.

v.

413, 417.

Walker, 2 Atk,

SPECIFIC PERFORMANCE OF AG RtEM tNTS.

have held

but

Evidence of an unknown Agreement,

it

Money

have had the

to

ought

have been

to

c:ases are

303

laid out,

repaid.

Those

Compensation.

very dissatisfactory.

to say, the Statute should

was very

It

not be

It

right

an engine of

Fraud: therefore compensation would have been

very proper.

They

have, however, gone farther

was clear, there was some Agreement,

and letting them prove it: but how does the
saying,

it

Man

circumstance of a
deal of Money,

prove that he

ninety-nine years

for

having laid out a great

is

to

have a Lease

The common

sense of the

would have been to let them bring an Action

the MGney.
/ should pause upon such a

tiling

for

case ."

Impressed, probably, with similar

Lord Eldon, early in that

which has immortalized him as

ings,

pressed a determination

feel-

judicial career
a

Lawyer, ex-

not to go one iota fur-

ther than the cases".

The

cases are

numerous

in regard to

what

are to be considered as a part performance

If the Vendee,

Sale of Lands,
this has

ance

q
;

on a parol

is let into

been held
a fortiori,

if

to

and

v.

in

lUiv,

General

v.

Ves. '221.

"Cooth v. Jack son, G Ves.

32, 37; and see whdt is said
by Lord Redesdale, in 2 Sen.
and

Lefr. 5.

the

Posscssionby the Vendor,

amount

Stradliug, 3 Ves. 382,

Attorney

for

to a part

perform-

the Party enters and improves

* Foster v. Hale, 3 Ves. 7 12.

etc; and see what is said in
Mills

Agreement

acts

See 3- Ves. Jim. 39. and

the cases there cited.
< Butcher v. Stapely, 1 Vera.

365. Py key. Williams, 2 Vera

455. Wheeler v. Newton, Tree-.
Lockey v. Lockey,
16.
Cjl.
Prec, Ch. 519. 2 Str. 783. and
the cases cited in die note,
and see Lacon v.
1 Atk. 12
Mertins, 3 Atk. I,
:

30i

EQUITY JURISDICTION".

them
or builds'; and if what was the parol
Agreement clearty appears, it will be enforced *.
The payment of Money, either in part, by way
r

of earnest, or, in
it

cases

for the

full,

seems, deemed

a part performance

In some,

are contradictory.

holden that

Money

if

v
;

not,

but the

has been

a substantial part of the

purchase

sum

purchase Money,

a part performance, but

is

paid, the twentieth part of the

for instance, is

not w

but Lord

lledesdale appears to have thought, that

of the purchase

money

performance

a part

is

it

paid, that

is

that a small

purchase,

will, in

no

ease,

payment

amount

to

Giving of Directions for

Conveyances, and taking a view of the Estate, have

been resolved, not to be a part performance*'.

Putting of a Deed into the hands of a Solicitor

to prepare a

Conveyance,

is

not a part performance

of a parol Agreement to convey \

And where

compromise, and a division

tration, acts

Agreement for a
of the Estate by Arbi-

there was a parol

done by the Arbitrators towards the

execution of their duty, such as surveying,, &c.

were not considered

r

Hawkins

Wms.
s

v.

as acts oi'pai

Holmes, IF,

770.

p. 40.

and same book,

p.

Savage and Foster, 2 Mod.

Mai

te

v.

Melbourne,

s.720, LaconandMertius,

37.
1

fr.

performa^ic^

Boardman

v.

Mostyn, G

3 Atk. 4.
x
Clinan

Ves. 470.
v

Lord Pengall and Ross,

2 Eq. Abr. 46. Leake and
Morris, 2 Ch. Cas. 135. Seagood and Meale, PrecXh. 5(50.
but see Freeman 281. and the
authorities mentioned in the
note to Clinan v. Cooke s 1 Sch,

'

r.

Cooke, 1 Sch.

and Lefr. 40. and the cases

mentioned in note (a).
* Clerk v. Wright, 1 Atk.
1

2.
*

Redding

v.

Wilkes, 3 Bro.

C. C. 400. Cook v.
2 Anstr. 425.

*Cooth

v.

Tombs,

Jackson^ 6 Ves.

4L

SPECIFIC PERFORMANCE OF ARRF.r.MrSTS.

If a Eill be filed tor the Specific

306

Performance

of a parol Agreement, and the Defendant admits

the Agreement, and submits to perform

of course be decreed

it,

it

will

''.

JUit if there be a Plea of the Statute of Frauds,

and

Agreement

no parol

answer, the Court has

Defendant

And

execute

to

no case compelled the

in

it

c
.

though the Agreement

the answer, (and

denied

yet, if

'\)

is

admitted

by

must be admitted or
the Defendant insists upon the
it

seems

Statute of Frauds, a

not be enforced

by the

confessed

it

Performance

Specific

But

will

the Defendant admits

if

the parol Agreement, and does not insist on the

Statute, he

is

taken to have renounced

Specific Performance will be decreed

It

and a

it,

f
.

seems questionable, whether an Agreement

for a separate

Maintenance, will be enforced, where

such Agreement

Husband and

articles

rests in

The

the Wife.

between the

Spiritual

Court,

being considered as having exclusive cognizance

of the rights and duties arising from the state of
.Marriage.

r
'

Ambl. 586.

Fitzgerald,

Spurrier

v.

Yes. 548.
c
Whitchurch against Bevis,
2 Bro. C: C. 667. Whatey v.
Bugenal.G Bro. P. C. 45."
(5

See Child and Godolphin,

mentioned 2 Bro. C. C. 550.

and the

principal case.

Roue

Teed, 14 Yes.
Jackson,
Ves.
SO. Blagdeu v. Bradhear, 12
Ves.
471. Prec.
Ch. 208.
*

v.

375. Cooth

VOL.

v.

I.

Cilb.

Child

Eq. Cas. 35.

Godolphin,

v.

contra
Dick.

30.
f
Cooth v. Jackson,
Ves.
37 and see Moore v. Edwards,
4 Ves. 24. Whitchurch against
Bevis, 2 Bro. C. C. 550. Whitagainst
bread
Brockhurst,
;

Bio.

General

but

C.
v.

C. 410. Attorney

Day,

Ves. 220, 1.

and Banes,
Prec. Ch. 2G0. S. C. 1 Eq.
see Croyston

EQUITY JURISDICTION.

306

The Court has never decreed an establishment

of a separation between Husband and Wife, and
compelled a Husband to pay a separate maintenance to his Wife s without some Agreement
,

Abr. ID. Symondson v. Tweed,

Ch. 374. S. C. 1 Eq.
Abr. 19.
1
During the Usurpation the
Prec.

Court of Chancery exercised

Jurisdiction in casesof alimony, there being then no spiritual coii'ts, nor any toleration
of the civil law; but upon the

reestablishment of courts christian, the Court of Chancery

no longer retained this Jurisdiction insomuch, that when
afterwards a Bill was brought
for Alimony in the Court of
;

Chancery, a demurrer was

allowed. Vid. 2 vol. Shower's
Rep. p. 283. and the cases there
cited.

From

the

decision of the

Lords Commissioners in cases

of alimony, an appeal lay to
the Protector.
In a tract published in 1054,
entitled, "Alimony arraigned, or
the Remonstrance, &c. printed
in 1054, Q." there is given the
petition to the Lords Commissioners and the decree of the
Commissioners, The mode of
proceeding on these occasions
appears on the face of the
decree.

" Lords
Commissioners.
Saturday, 24th of July 1052.
between Theodosia Ivie, plaintiff, and Thomas Ivie, her husband, defendant.
Whereas, the Plaintiff having exhibited her petition
(against the Defendant her
husband,) to be relieved for
alimony, unto which, the defendant having put in his an-

divers witnesses

swer,

for

were

examined by Commission, an4

were,

others

(by their Lord-

ships' directions,) also

examin-

ed by the Register, in the presence of counsel on both sides

and for the better clearing of
the matters, and satisfaction
of their Lordships, therein
their Lordships were also pleased themselves to examine several witnesses,
viva voce, and
the cause having taken up
many days in hearing (after
much debate, and pains spent
herein and upon full and deliberate hearing of what could
be offered on both sides
and
upon reading of the said depositions, and of the indenture,
made upon themarriage, whereby the estate of the Plaintiff's
;

is settled upon Sir John

Brampstone, Knight, and Wm.
Booth, Esq. to the uses in the

father

said indenture declared,) their

lordships were fully satisfied
that there is good cause to give
allowance for alimony to the
Plaintiff; and do order and

decree, that the Plaintiff have

paid unto her, the sum of
300 by the year, which their

Lordships intend to be had

and raised out of the Plaintiff's
father's estate,

so settled

in

the said trustees as aforesaid

until further order.
And do
therefore order, that the said
Defendant, and the said trustees, shall authorise, or

and

permit

or
she shall nominate and
appoint, from time to time,
suffer

whom

the

Plaintiff,

SPECIFIC
that purpose

PERFORMANCE OF AGREEMENTS.

307

but Lord Hardivickc seems, though

reluctantly, to have thought such an

might be decreed

';

enforce that doctrine

and there are cases which

1

Jn one case, and after great

was determined

Agreement

consideration,

that, articles of separation

it

may

be specifically enforced,

and

at the suit

though the Husband offered, by

this,

answer, to receive his wife again

cision has been disapproved
and without interrupreceive the rents and
of the said lauds and

quietly,
tion, to
profits

the several tenants off the premises are hereby ordered to

pay the same accordingly, from
our Lady-day last; and the said
trustees, and the said tenants,
in so doing, are to be saved
harmless, by the decree of the
court.
But in case the said
lands arc in a greater yearly
value, than the said ,,300 per
annum and that the said Defendant, shall at any time, sig:

nify so

much

unto

t! ir lord-

and undertake -and sufficiently secure the payment of

sbips,

300

per

of the Wife,

annum

(quarterly,

unto the said plaintiff by equal

portions, to begin from our
1 ady-day
last, then the said
defendant is hereby decreed
to pay unto the said plaintiff,
the said yearly sum of j300
accordingly, until further order a3 aforesaid.
And that the
said trustees are in such case
to permit and suffer the said
defendant and his assigns to
receive and enjoy the rents
and profits of the said faher's estate, (any thing herein

k
;

his

but that de-

by subsequent Chan-

contained

the
contrary
notwithstanding.)
Hob. Dod, Dep. Regis. The
defendant considered himself
a much
aggrieved by this
decree, and brought an action against a Mr. Williamson, who detained his wife, and
under the directions of Lord
Ch. Justice Roles, obtained a
verdict for ^100, and an exeeution afterwards issued; but
he filed his bill in Equity, for
an injunction, and it was obtained, and thereby the plaintiff and others were enjoined,
under the penalty of 500,
against
proceeding on the
Upon this, the
judgment.
plaintiff petitioned, " the Parliament forthe commonwealth
of England ;'' but what whs
to

in anywise,

done upon

this petition, does,

not appear.
b
Lady Head v. Sir Francis
Head, l'Ves. 17. S. C. 3 Atk,

550.
See for instance, Angieraud
'

Angier, Gilb. Lq. Hep. 152,3.

S. C. Prec, Ch. 49(5. Lex Pretoria,
k

MS.
Guth

Guth, 3 Bro,
v.
G14 and see Fitzer v, Fitaer,
2 Atk. 511,

X 2

EQUITY JURISDICTION'.

308
cellors',

which the Court has acted

marriage cases in

upon an Agreement
neral,

Those

though not positively overruled.

to separate,

have been,

in

ge-

where a third party has intervened, and the

agreement was not merely between the Husband

and Wife m

or

where a fortune has accrued

the Wife after separation"

been

Trust

Property,

Court of Equity

bound

in

or

where there has

obtainable

The

to

only

Wife, certainly,

in
is

not.

any degree by a deed of separation, and

be enforced as

a specific performance could not

against her p

Articles of separation are put an end

conciliation"

and

toby Re-

as against Creditors/

it

seems,

the Court will never decree an agreement for a

r

separation

unless in those cases where Trustees

undertake to indemnify the Husband against the

debts of the Wife, for that forms a valuable consideration

s
.

See Legard v. Johnson,

SVes. 361. Lord St. John v.
Lady St. John, 11 Ves. 532;
and see Wilkes v. Wiikes, 2
1

Dick. 791.
"'

Sterling

2 Vern. 385.

Crawley,
v.
Stephens and

Olive, 2 Bio. C. C. 90. Compton against Collinson, ib. 386:

and see the observation, in

Legard v. Johnson, 3 Ves. 359.

and in Lord and Lady St. John,
11 Ves. 532. see also Cooke v.
Wiggins, 10 Ves. 191.
n
bull and Montgomery,
2 Ves. 3G0 and see the observation in Legard and Johnson, 3 Ves. 360.
;

Sidney

Sidney, 3 P.
observed on ia
Legard and Johnson, 3 Ves>
350. 360.
p See Lord St. John v. Lady
St. John, 11 Ves. 533.

Wms.

v.

269.

Lord

St.

John

v.

Lady

St.

John, 11 Ves. 537.

r
Lord Hard wick e expressed
a doubt as to this in Fitzer v.
Fitzer, 2 Atk. 514; but see
the observations and decision
in Legard v. Johnson, 3 Ves,
361.
* Stephens v.
Olive, 2 Bro.
C. C. 90. and King v. Brewer,
cited ib, p. 93, in note.

STECIFIC

A parol

PERFORMANCE OF ACRtE.MCNTS.

Agreement

30<)

an equality of partition,

for

entered into between persons

who had

a right to

and accordingly put in execution, will,

though of longstanding, be established. And if a

contract,

Joint-tenant upon

equality of partition,

proper to accept of a contingent,

thinks

uncertain ad-

vantage, where one moiety of the

Land

rior value

not vacate

to the other,

Agreement"

will

it

of supethe

but the Agreement of the Husband

will not bind the Inheritance of his

is

Covenant

Wife

b
.

to renew a Lease, at the request of

the Lessee within the Term, will be enforced, even

in favor of the

Executor of the Lessee who died

before any request

made

clear contract for the perpetual

a Lease for Lives

executed

6
-,

renewal

of

or for Years, will be specifically

but a Covenant

at the expiration of one

Lease for twenty-one years, to make a new Lease,

" with all Covenants, Grants, and Articles, as in
the former Lease contained, *' will not be allowed
to operate as a
It

has been

specific

Covenant

for perpetual

Renewal \

holden, that upon a Bill for the

performance of an Agreement

for a Lease,

the Court cannot apportion the price according

to the time already expired
Ireland v. Rittle, 1 Atk.

642.

Mb.Sed.
c

Hyde

vid. Co. Pitt. 171. a.

Skynner, 2 P.
Wins. 190.
d
Furnivaland Crew, 3 Atk.
v.

83.
* Moore v. Foley,
C Ves.
232. Iggulden v. May, 9 Vea.
325. and see 3 vol. HargraVe's
Jurisconsult Exercitatioiftj, on

but,

it

appears, that

subject of
this
case.
Bridges v. Hitchcock, 1 Bro.
P. C. 522. Bettesworth Against
Dean of St. Paul's, 8 Bro. P. C.
389. Somerville v. Chapman,
the

1 Bro. C. C. 63. Trittou a^iinst

Foote, 2 Bro. C. C. (j:j(>. Kus-

sell v.

Darwin, mentioned in

note to 2 Bro. C. C. 639.

f

King

Anstr. bU,

v.

AYiglituian,

EQUITY JURISDICTION'.

310

where the Vendor of a Lease has continued in possession, and in consequence of a Suit, time has

by the

elapsed, Interest will be ordered to be paid

Purchaser, on

Purchase Money and Rent

his

respect of his Possession,

It has

by the Vendor g

long been determined, that a

in

Man may

be

decreed to procure his Wife to acknowledge a fine

of mortgaged Lands

h
;

to procure his

or

to join in a Surrender of a

Copyhold

this doctrine, recent cases agree

And

Covert agrees to join with her Husband

a Surrender,
before

it is

Wife

and with

if

in

Feme

making

or in levying a Fine, and he dies

done, a Court of Equity will compel

her to perform

the

Agreement

k
;

her conscience

being bound.
So,

if a

Husband

possessed, in right of his Wife,

of a term of years, agree with another, for an under

Lease, but dies before the Lease is executed,
the Agreement will yet be specifically performed
against the
If a

Wife

Husband covenanting

for his

Wife, states

an absolute impossibility to perform his Covenant,

and

offers to

as if the

Dyer

put the Party

Rust

v. Ilargrave,

v.

lOVes.

Whittle, Tot. 94.

Griffin v. Taylor, ib. 100.

Stephenson, 7
Ves. 474; and see Hall v.
Hardy, 3 P. Wins. 187. and
Barringtoa v. Rome, 2 Eq.
Abr. 17. PI. 7. 5 Vin. 547. the
case of a Fine agreed to be
'

Morris

same situation

Agreement had never taken

505.

and

in the

v.

procured;

place,

see also

the

Berry

v.

Wade, Finch. p. 180.

k
Baker v. Child, 2 Vein.
01. Seu vid. what is said of
that case, Eq. Cas. Abr. 02.
pi. 2.
'

Steed

against

Mod. 43. Druce

Ves. 394, 5.

v.

Cragh, 9
Dennisou,

SPECIFIC PERFORMANCE OF AGREEMENTS.

Agreement,

seems, would not be attempted to

it

be enforced"

Husband was decreed

In one case the

to join in

a Conveyance, and procure his Wife so

and
that

to
if

311

to

induce him, an alternative was added,

he did not

in the

by the Master, perform

the Plaintiff for the

do

viz.

time and manner directed

it,

he should account to

Money

received in respect

of the Agreement".
It

seems,

however,

doubtful, whether

very

under a Contract by a Husband alone,

would decree him

Lstate of his Wife, the Court

procure her to join

to sell the

Lord

to

Coicpcr refused to

enforce a specific performance of a Covenant by a

Husband, that
In one case,

his

Wife should levy

it is

laid

down

that

hand

a
if

Fine
a

Husband

convey

nia
by articles under
Wife's Lands to B., B. may prefer his Bill against
the Husband and Wife to compel a specific execution of this Agreement, and if the Wife upon

his

agrees

private examination consents, the

cree it; but

it

to

Court

will de-

was doubted, whether the Court

would decree a

specific performance, if the Bill

be preferred against the Husband only, because,

the Court should compel the
the
his

Husband

if

to convey,

Husband would compel the Wife, who is under

power and the Wife ought not by Law to
;

See Outread v. Round,

4 Yin. Abr. 20)i. pi. 4. iVlorrii
v. Stephenson, 7 Ves. 478.
n
SeeSedgwickev. Hai grave,
2 Ves. 57.
Gilbert's Lex Pretoria, 245,

Fmery

Wase, 5 Ves. 8 II
b VeS 84S:
p Outread
v.
Round, Yin.
Abr. tit. Baron and F^me,
(11. b.j Ca. 4. S. C. 2 Eq. Abr.
v.

C on Appeal,

145,

EQUITY JURISDICTION.

312

convey by means of any compulsion from the

Husband
The

''.

sought

ly

of Covenants

specific performance

in

Equity

of Lands, agrees

by

is

frequent-

and where a Person seized

Articles, to settle

Lands of a

have been held to be

certain value, the Articles

which such person was

a lien on the Lands, of

then seized, though no particular Lands were

mentioned
So,

make

in the Articles

where Tenant

such Jointure,

.=

Life,

for

500,

a Jointure of

Marriage, and of

of

in consideration

make

covenants to

10,000,

but dies without doing

been held that the Articles are

tate,

with power to

a lien

it,

it

on the Es-

and that by the execution of them,

Covenantor became a Trustee

for the

has

Feme

the

5
.

Husband is bound by his Covenant,

or his Trustees arc bound with his consent, and
with his Money, to purchase and settle Lands, and

Where

he does purchase Lands of less

value than the

Sum

but does not settle

Copyhold
for
q

71

,)

equal", or greater

he covenanted to lay out

it,

presumed

he
to

is

(unless the

See Wheeler nnd Newton,

Rep. 267.
r
Houndell

v.
Breary, 2
Vern. 482. coniirmed, 3 Atk.
327, 9. Coventry v. Coventry,

Gilh. 1CS.

Lady and Lord Coventry,

2 Mod. 19.

w
;

Land be

have made the purchase

the purpose of the Settlement y ;

Gilb. Eq. Rep. S. C. Pvec. ( h.

10. Gilb. Lex Pretoria, MS.
and see. Davis v. Jones, 1 New

for

it

is

See 2 Atk. 035. Lech mere

Carlisle, 3 l\ Wms.228.
' Wilcox v. Wjlcox, 2 Verjr,
558. relied on 2 Atk. 034,
Deacon v. Smith, 3 Atk. 323.
w
See Garthshore v, Chulie,
10 Ves. 9.
*
General
Attorney
and
Whorewood/l Ves. 541.
y Lench v.
Lench, 10 "Ves.
510; see also Wilson and Fore'

and

PERFORMANCE OF AGREEMENTS.

SPECIFIC

Man

Rule that where

and he does what

may

it is

bound

is

313

do an Act,

to

enable him to do the Act,

taken to have been done by him with the view

which he was bound

of doing that

The

seems

cases,

why

reason

it is

to

do \

held a satisfaction

Court

to be, that the

n these

will not

draw

out of the Personal Estate to the prejudice of the

Widow and younger Children, a Sum of Money,

which would be a double Provision for the eldest Son \
These cases of satisfaction, however, depend
upon the Intent of the party, and Evidence is
admissible to shew, that a purchase was not made
performance, or part performance of the Cove-

in

nant

If

Lands,

the Purchaser sells or mortgages the

will be considered

it

Evidence that

as

they were not meant to be in satisfaction of the

Covenant
struction

c
;

but a Devise will not have such con-

d
.

In one case
tract to settle

it

was held

that, if there

a partiru/ar Estate, and

breach of the contract,

it is

a question

and an issue must be directed to

damages

are, in

contract

to

which

it

was

be a conthere

try

what the

said to differ

the Ue-ister's book, 10 Ves.

520j Leehmere and Lech-

421.

01'.),

mere, For. 80.

7

Sowtleii v. Sou-den, 1 Bro.

C. C. 58:}. s. C. mentioned in

mere

v.

from a

purchase Lands, in which case Lands

80. and see Weyland
land, 2 Atfc. (4.

3 P.

of damages,

man, imperfectly reported in

2 Dick. 59:3. but stated from

note,

is

Wms.

228. I. etchLetchinere, Forester

Wer-

See Lee and Cox, 3 Atk.'

v.

Garthshore

v.

Chalie,

10

Ves. 10.
c

Deacon

v.

Smith, 3 Atk.

320.
d

97.

Tooke

v.

Hastings, 2 Vern.

EQUITY JURISDICTION.

314

would be decreed

e
be purchased

to

cases appear to have established

but previous

as the doctrine

it

of the Court, that, though a Covenant to settle

or convey particular Lands, would not, at Lau\
create a lien

upon the Lands

such a Covenant,

if for

would be deemed
and
all

yet, in Equity,

a valuable consideration,
lien

specific

on the Lands,

performance of the covenant decreed against

persons claiming under the Covenantor, exa

cept Purchasers for a valuable consideration, and

without notice of such Covenant

If one covenants, before Marriage, to settle certain

Lands on

Wife

his

devises such Lands for the

payment of debts, the

as a specific lien

covenant operates

But a covenant

and afterwards,

for life,

to settle

on the Lands.

Lands of the value of 60

a year, without mentioning any particular Lands,

does not operate as a specific

must come
Master

but the wifo

lien,

in as a Creditor in general,

and the

and she will

will value her Estate for life,

be allowed to the amount of that valuation

Where

Husband covenants

Lands

that

set-

of such an annual value, this amounts to

tled, are

a covenant

on

his part to settle

and make good

to that extent, in case of deficiency; but the value

must be calculated

at the

time of the Settlement,

h
and not to the death of the Husband
c

Wade

C. C. 368

Paget,

v.
;

and

see

Bro.

Vernon

v.

Vernon, 2 P. Wins. 594.

(
Finch v. Earl of Winch elsea, 1 P. Wms. 282. Freemoult
v.

Dedire,

Coventry

v.

P. Wms. 429.
Coventry, Gilb.

Rep.

1GC and

Max.

cit.

at end of Francis*
Fonbl. Eq. 359.

n. (d).

Freemoult

v.

Dedire, 1 P.

Wms. 429.
h

Speake

217.

v.

Speake,

Vera.

PERFORMANCE OF AfiREEMEMj,

SPECIFIC
If a

Husband covenants

Son of the Marriage, and

him

so

in fee, this is,

covenant*.
to an

Heir

It is the

to

performance of his

same, where Lands descend

sum of Money

cestor, a

Lands descend

lets

Law, who claims

at

on the eldest

to settle

far,

31j

in

place of his an-

Land

to be laid out in

v
.

All these cases of implied satisfaction, or pre-

sumed performance,

are

where the Husband or

Father has done nothing, as

to descend, without

in the suffering

any declaration

Land

what way he

But where a Will

intended they should go.

is

made, and a clear intention discernible, the con-

must be according

struction

to the

So, where parties enter into an

to the

produce of Land, the Land

affected

by the Agreement.

Will

Agreement

as

itself will

be

Where,

therefore,

there was a covenant to appropriate one third of

the produce of a real Estate to raise

Money,

it

was considered not merely

Law, but

sum

of

as a per-

sonal covenant

suable at

a lien upon

Land, and the covenantees en-

titled

If a

the

to have

it

specifically performed.

sum of Money,

belaid out

in

it

k
1

dies,

1.

lb.

Sir Prime

might be a question,

between the Heir

Representative, how

See diet. 2 Ves. 41

2 Ves. 4 LI.

it

seems, decided,

and Personal
'

say s500, be covenanted to

Freehold and Leasehold Property,

and the Covenantor

no where,

as creating

v,

Stebbing,

m Legard

muck of the

v. Hodges, 3 Bro,
C. C. 531, and 8. C. on rhearing, 4 Bio. C, C. 421.

EQUITY JURISDICTION.

31(>

money

be considered as Freehold Property

to

is

descendible to the Heir, and

hold, belonging to the

but

if

makes

in

how much

Lease-

as

personal Representative

such case the Covenantor by

a general devise of

all

his

Will

his Freehold

and

Leasehold Lands and Hereditaments, this would

pass

the^oOO".

It is observable that

directed to be laid out

particular uses,

considered as

where money
in

will,

it

Land

agreed or

is

Land, to be settled to
uninvested, be

whilst

in regard to succession,

and

accordingly goto the Heir of the person intitled

to the Inheritance in the
in the

to dispose of the

to

be purchased,

as the Land,

same manner

would have done

Land

purchased,

if

some person competent

until

Lands under the

limitation of

the uses, shall clearly^manifest and decide his intention to terminate the realizing Trust, and to

dispose

of,

have the uninvested fund again

or

considered as mere personal Property

And where

and directed

sum

of

money

given by Will,

is

out in the purchase

to be laid

of

Lands, or of Lands in a particular county, and

after they are bought to be settled upon such and

such Persons
the Court

is,

if

a Bill

to direct

duce of the money

filed,

3 Atk. 1 14.
Palteney v. Darlington,

the course of

a purchase, and the pro-

to go, as the

n
See Guidot v. Guidot,
3Atk.254.
See Attorney General and

JUilner,

is

TBro.P.

Land
C. 548.

and see Earlom

itself,

till

Toml. Ed,;
v.

Sounder;,
v. Gee,

Ambl. 242. Bradish

Ambl. 229.

PERFORMANCE

SPr.CIFIC

purchased

So,

OF AGREEMENTS.

by Will

there be a direction

if

to purchase a particular Estate,

which

317

swallow-

is

ed up by an Inundation, as happened in Essex:

or

the direction

it*

such

purchase an Estate in

to

is

county, ami

cannot be procured,

it

the

money will not go to the Executors, but in such

manner as the Rents and Profits would do, where
the Land is purchased".
And where money is agreed by articles to be
out

laid

in

who would

Land, the Party

have the

elect to have the

Land when bought, may

money paid to him, and that it

shall not be laid

out

sole Interest

same

the

iu

in case of a bequest of

wife

is

in

Tail,

Land

money

to

for

money

be

Reversion to her in

If she elects to take

fee,

it

in

v
,

And where money

Tail, the

the

laid out*.

or for her in

whether she would

it

laid

out in Land.

money, an enquiry

directed, whether she has a Settlement

on one

settled

is

devised to be laid

her and her Heirs

Teceive the money, or have

be

it

examined apart from her Husband

as to the disposition of

out

And

Land\

in

Court

is

to

be laid out

for Life,

will

is

in

Land, to

with Remainder in

pay out the

Money upon

the

application of the Tenant for Life and the Te-

Earl of Coventry v. Corentry, 2 Atk. 39(i. S. C. best

reported at the end of Francis's

Maxima inEq.
r
2 Atk.
Ves. 610.

Benson

Wms.

130.

3G9.
v.

and see 10

Benson,

P.

* Seeley v. Jago, 1
P. Win?,
389.
v
Pearson v. Brereton, 3 Atk.
71.
Binford v. Borden, 1 Ves.
Jan. 512; and see Oldham v.
llu-hcs, 2 Atk. 453. Traftbrd
v. Boehm, 3 Atk. 447. Cun-

ningham v. Moody,

1 Ve9. 17t>.

EQUITY JURISDICTION.

318

Bent

if)

Tail

x
,

provided they are not Infants

but the Wife of the Tenant

in Tail, as she

entitled to Dower out of

Money were laid out, must give

be

the Land,

r
;

would
if

the

her consent 2 .

If,

however, the Estate to be purchased was to be

Tail,

on

A.
Remainder

settled

to

Remainder to B, in
fee, the Money was not

Life,

for

in

application by

directed to be paid on an

A. and

B. because of the contingency to C. but if the

remainder was to B. in fee, or to A. in Tail, remainder to him in fee, then on such application,
a
as it was also, where
the Money was paid
h
those in Remainder consented
The old rule was > to decree the Money to one
who would be Tenant in Tail, if laid*outin Lands,
with remainders over but Lord Cowper altered
,

% and held

that doctrine

man should have

barred but by

that the

his chance, as

Remainder-

he could not be

Recovery, which required time,

and would not direct

it

to be paid in

Money and
;

the accident of the death of the Tenant in Tail in

Recovery shewed the Remain-

that case, before a

der-man's interest

in so glaring a light,

that

it

But where the remainder can be barred by Fine, the Court will

established the precedent

decree the

Money

e
.

Amlcr v. Amler, 3 Ves.

587.
> Carr against Ellison, 2 Bro.
C. C. 50. 1 P. Wms. DO, 130.
wnd 389; and

(1

see Forester,

272.
See note G. to Eyre's case,
3 I\ Wms. 14,

Short v. Wood, 1 P. Wms.

470. Trati'ord v. Boehm, 3 Atk.
447.
b
Collet v. Collet, 1 Atk. 12.
c
See Colwall v. Shadwell,
1 P. Wms. 471, 485.
d
1 Vcs. 170.
e

lb.

PERFORMANCE OF AGREEMENTS.

Sl'ECIFIC

And now, by
56.)

c.

it

40 Geo.

the Statute (39 and

actually invested in Land,

order

in

Estate Tail and Remainders over

Tenant of the

Petition of the

3.

Money

not necessary to have such

is

319

bar the

to

but upon the

Estate Tail,

first

and of, the owner of the antecedent particular

Estate,

may

if

any

in

the Lands, Courts

order the Monies subject to such Trusts to

But

be paid to the Petitioners.

the Court will not decide

tition

under

And

this

Act

be

if it

question what Estate the Party

ful

Equity

of

is

doubt-

entitled to,

upon an exparte Pe-

it

before an order can be obtained under the

Act, the Court takes care to see, by a Reference

to the
clear;

Master

and a Petition

day of Term; but

will not

the Term, as to give sufficient

to

be suffered

l
.

the vacation, the

that the

be heard on the

is

last

such a period of
time for a Recovery
at

If the application

Money

Fund

the order in Term,

to obtain

must be made

the application

purpose

for that

is

made

in

ordered to be paid to

is

the Party in case he should be living on the se-

cond day of the ensuing Term k

Having

considered those

cases

in

which a

we may now

specific performance is decreed,

pro-

ceed to notice those instances in which a Specific

Performance has been refused.

f
In such case there must be
petitions,
two
Baynes v.
Baynes, 9 Ves. 402.

Ex

parte Sterne,

6 Ves.

150.
b

57G.

'

Ex

parte Frith, 8 Yes. COO.

Es parte Bennet, Ex parte

Dolman, 6 \>s. 110. and Vid.
note

to

Fletcher

5 Yes. 12. in note.

Ex

parte Hodges, G Yes.

v.

Toilet,

EQUITY JURISDICTION.

320

The Court will not decree a specific

mance of contracts of every description.

perforIt

is

only where the party wants the thing in specie

and where the legal remedy is inadequate or

live, that a Court of Equity interferes

defec-

111

on

It is

this

ground

(as before adverted to)

that,

generally speaking,

a Bill

will not lie for the

Agreement respecting

specific performance of an
diattels

and on the same principle a Court of

Equity has refused

to decree a specific

mance of a covenant

to

for

perfor-

make good a gravel

Law

complete Justice could be done at

action for breach of the contract

pit,

in an

u
.

It has been said (though there are early dicta

to the contrary

Agreement
creed

11

to

,)

that a specific performance of an

build an

House

will not be de-

but Lord Hardwicke seems to have thought

differently

% and

decreed a specific performance

of a covenant to rebuild, though he would not of

a covenant to repair"; and

seems that

it

covenant to build, the transaction

defined, a specific performance

but

if it is

pressed

the Court could

1

Errington

v.

describe

Aynesley,

Ui3.
lb.

159.

Scliolefield

v.

Whitehead, 2 Vern. 127.

See ante, p. 267.
See lucas against Commerford, 3 Bro. C. C. 107.
fi. C. 1 Ves. Jun. 230. Errington against Aynesley, 2 Bro.
p

C, 313. Flint

v.

and

it is

what the building

2 Bro. C. C. 341.
m Mint v. Brandon, 8 Ves.
n

is in its

Brandon,

it

on a

nature

would be decreed

loose and undefined,

distinctly

if

is,

not exso that

as a subject for the

8 Yes. 1G4. contra, Holt v.

Holt, 2 Vein. 322. and diet.
1 Ves. 401.
<3Atk. 515.
'
City of London v. Nasi),
1 Ves. 12. S. C. 3 Atk. 512,
see Mosely v. Virgin, 3 Ves.
185; Hill and Barclay, 16 Ves,
to covenant to
J 84. as
pair; and see Whisler

re-

and

Mainwain, mentioned 3 Wood,

434. in note.

PERFORMANCE OF AGREEMENTS.

6PECIFIC

321

Report of the Master, the Jurisdiction docs not

apply \

not

Bill will

lie for

a specific performance of

an Agreement to refer to Arbitration

If an Estate be sold

l
.

under a Decree, a

a specific performance will not

Bill for

but the Pur-

lie,

chaser must proceed under the Decree*.

A Party

calling for the aid of a

must come,

as

it is

with clean hands

said,

Defendant, therefore, to a

formance of an

Court of Equity,
.

Bill for a specific

Agreement,

allowed to

is

A
per-

resist

by shewing, that under the circumstances, the

it,

Plaintiff

is

not entitled to the prayer of his

Bill,

by evincing, there has been an Omission or

Mistake, in the Agreement x or that it is unconas

scientious*; or

Fraud, or Surprize 1 or that there has

,

been Concealment \ Misrepresentation

intoxication, for instance

unfairness",

ing

it

and

in

Mosely

'

is

v.

is

permitted

Street

Virgin, 3 Ves.

though parol

Itigby,

Mort-

Buller, 10 Ves. 305.

*
Shirley v. Stratton, 1 Bro.
C. C. 440. Olfield v. Hound,
5 Ves. 508.

G Ves.

Anne.-doy v. Ashurst, 3 P.
Wffls. 282.
" Caduiauv. Horner, IS Ye?.
11.

"

J 1.

v.

Cadman
Buxton

v.

Horner, 18 Ves.

v. Lister,

3 Atk.

386. Phillips v. Duke of Bucks,

1 Vern. 227. Howard v. Ilopkins, 2 Atk. 370.

Jovnes v. S(atliarn,3 Atk.

388. Woolamv. Ileum, 7 Ves.
211. see 1 Ves. and Bea. 532.
Mason v. Armitage, 13 Ves.
25.
y Vaughan against Thomas,
1 Bro. C. C. 556.
* Clowes v. IiigLdnson, 1 Ves.
52G, 7. Marquis Townshend
V. Sim groom, 6
Ves.
328.
Twining v. Morriee, 2 Bro.
I.

attend-

C. C. 326. alluded to in

81S.

VOL.

for

locke

v.

inadmissible on the part of a Plaintiff,

185.
1

these cases parol Evidence of such

circumstances

Evidence

or other

234;

Savage

v.

'Taylor,

Child
erq. 71.

anil see

v.

For.

Daw-

ridge, 2 \
Scott v.
Murray, 1 Ves 2.
a
C agg v. Holme, mentioned in note to Cooke v. Clayworth, IS Ves. 14. and approved (ib.) p. 15. but see

ante, p. 238. etc.

EQUITY JURISDICTION.

3-22

to explain,

add

>

or vary a written Contract",

to,

(except incases of Fraud

,)

admissible on

is

it

the part of a Defendant to a Bill for a specific per-

formance, to shew circumstances, dehors, indepen-

dant of the Writing, making

it

inequitable to in-

terpose for the purpose of a specific performance.

AVhere, therefore, on the face of the Agreement

a specific

sum was

to be given for timber,

but

it

was shewn by parol Evidence that the Defendants

were induced to give that sum, upon an untrue
was valued by two Timber
Merchants, it was not enforced s
So, where an
Agreement was to pay so much Rent, but by the
Representation, that

it

Evidence

it

appeared the Defendant was induced

so to agree, because she thought from the Plaintiff's false

representation,

was the rent he paid,

it

a specific performance was refused'

So, in a case, where the Defendant proved that,

Agreement was executed, there

was a parol Agreement by the Plaintiff, upon
the faith of which, the Defendant executed, which
at the time the

Agreement had been unperformed, a specific

performance in favour of the Plaintiff was refused',
parol

Where

an

Ramtbottom

Agreement

Gosden,
and see
what is said in Butler v. Cooke,
1 Sch. and Lefr. 39 ; and set
Meeresv. A null, 3 Wjls. 275.
l'i nn v. Lord Baltimore, 1 Ves.
451. Baker v.Payne, 1 Ves.
400. Woolam v. Hearn, 7 Ves.
1 Yes.

lias

v.

and Bea. 166

been unfairly ob*

Coles v. Trecothiek, 9 Ves\

240. Winch v. Winchester,
1
Ves. and Bea. 375. Clowes
1 Ves. and Bea,
and Higginson,
"
520,7.*
Baker v. Paine, 1 Ves. 456,
Pembei v. Matthews, 1 Bro,
'

C. C. 52.

Robson v. Collins,
7 Ves. 139 and see Marquis
Townshend
v.
Stangroom,

383.

Ves. 328. Rich and Jackson,

4 Bro. C. C. 514. Judgment
more lullv given.
Ves. 33(3.

219.
Clark
519.

211, 219.

Buxter

'

LisUr, 3 Atk.

v.

Woollam
v.

v.

Ileum, 7 ^

Grant,

es,

14 Ves.

SPECIFIC

PERFORMANCE OF AGREEMENTS.

3"2J

tained, and the Party has been in possession, and

made
for

lasting

Improvements, he has been allowed

them, on consenting to deliver up the agree-

ment and account for the Profits, but not

goes to Law, and fails there k

it"

he

In the case of articles,

if even

sonable, or

reasonable

',

unjust or

they appear unrea-

or founded on a fraud, or

it

would be

unconscionable to give assistance, a

Court of Equity
Heir

if

some parts of them appear un-

sells a

them

will not enforce

Reversion

in the life

m
.

So, ifan

of his Father at

an under value, the Court will not, in favor of

such a Purchaser, decree a specific performance
ofa covenant for further assurance

An Agreement may

n
.

be resisted on the ground

of a parol icaivcr"; but the proof must be very

clear

If variations in an

1".

Agreement, by Parol,

be so acted upon, that the original Agreement cannot be enforced, without injury to one party, that
circumstance would be a bar to a specific performance of such original Agreement* but varia1

tions, verbally agreed

upon, are not sufficient to

prevent the execution ofa written Agreement,

the situation of the Parties, in

remains unaltered
k

Savage

v.

Taylor,

For.

'See 3 Atk. 190.

Young v. Clerk, Pieced.
Ch. 53&
" Johnson v. Nott, 1 Yern.
271.
8
Goman v. Salisbury, 1
Yern. 240. Price v. Dver,
17 Yes. 856. Legal and Miller,
"'

Yes. 299
and see this case
cited by the Chancellor,
Ves.
;

if

othef respects,

2:34.

all

ij
ote Cibbons v.Caunt,
4 Ves. 8*8. Sedvide Woollam
and Hearne, 7 Ves 511.
p Buckhouse
and Crosby,
2 Eq. Abr. 33.
q
Seethe case in 2 Eq. Abr.
48. pi. 10. unci in Yin. Abr.
Tit. Contract and Agreement,
(H.) Ca. 38. and Legal and
Miller, 2 Yes. 299.
r
See Prii;e and Dyer, 17

336.

Yes. 3U4-

EQUITY JURISDICTION.

324

An

Agreement,

the time of

There

it

ground

no

so, at

commencement^ nothing subsequent

its

can impeach

impeached, must be

if

a failure in a speculation

to

resist

forms

a specific performance

*.

however, cases, where, when a specific

are,

performance would be attended with great loss

and hardship

the Defendant, the Court

to

has

not directed a specific performance, but has

di-

rected an Issue to try what damages the Party

sustained by the nonperformance of the

Agreement u
In Family arrangements, particularly, the Court has held Parties to Agreements
which strangers would not have been bound by v
but, in general, the Court will not hold parties
acting upon their rights, doubts arising as to

has

those rights, to be bound, unless they act with

knowledge of all the doubts and difficulties

that arise
but if Parties with full knowledge act
full

upon them, though

it

a great advantage,

the

if

reasonable at the time,

lias

Parties acting

were mistaken

though

C.

Mortimer

London

Stockley

Atk.
*

v.

v.

Bro.

Nash,

Stockley, 18
v. Stapilton,

*.

and
It

v.

turns out that the

Law

Stapilton,

Counsel.,

x
.

1 Atk. 10. Can v. Can, 1 P

Wins. 727. bnt see Davy v.
Barker, 2 Atk. 491. where it i*
said, that where any extraordinary advantage happens by
an accident, it is in the discretion of the court to decree
a specific performance.
Gibbons v. Caunt, 4 Ves.

849.

1.

Stapilton

it

wrong opinion of

Weare,
and see

Capper,

Ves. 31. Stapilton

1

fair

will be binding

it

in point of

against
C. 5(i (J

v.

C. C. 150.
u
City of
3 Atk. 516.
T

upon

Atk. 404.

Adams
Bro.

Agreement was

been held that the Court will enforce such

an Agreement,

turns out that one gains

STECIFlC PERFORMANCE OF AG IlEEMENTS.

No Agreement
as, for instance,

will be enforced that

it

323

illegal;

is

be founded in champerty* or the

,

Agreement be to stifle a prosecution for Felony

no claims being allowed which cannot be sup2

medium

ported, except through the

Nor does

Agreement*.
fruitless a

Voluntary

Party making

a specific

impossible to be done.

leaves the party to his

it

Court ever do

the

thing, as to decree

mance of acts,

remedy

Conveyance

it,

of an illegal
so"

perfor-

In such case

at

Law b

good- against the

is

though cancelled % and against

subsequent voluntary conveyances, whether

all

by Deed a or Will % though the devise be for

the payment of debts'"; for the Court, as it hath
been said, " will not loose the fetters the Party
,

hath put

upon

himself,

under

own

Folly ."

his

but he must

As

been shewn

(as hath

Settlement

',)

bad

against Purchasers

and Creditors,

for a valuable consideration,

1

and

to a Purchaser,

who even

tary conveyance, there

uses,

as

even, though
Powell

>'

the

is

there

Johnson

v.

Ogilby, 3 P.

W ms. 279.
Thomson

7 Ves. 473.
b
Green

v.

v.

Thomson,

vSmith,

Atk.

073.
c

Beaumont, 1 Vera.
100, Claveriug and Hill, 1 Etj,
Villersv.

is

made

no Equity

to apply to

Money

to the
;

not

was an express covenant

'224,

is

voluntary-

voluntary conveyance

Knowler, 2 Atk,

r.

it

has notice of the volun-

the Court to lay out the purchase

same

if

made, and afterwards a Sale

is

down

lie

to

Abr. 475. S. C. Prec. Ch.

473. and 2 Vein. 473.
d
1 Ch. Rep. 173.
e
See ease determined by

Lord Somers, mentioned in

Ladv Hudson's case, Prec. Ch.
235.
f
Pale v. Newton,
4G4.

1 Vera. 101.
e

1 Vcrn,

ante p. 216. etc.

326

EQtJlTY JURISDICTION.

lay out the

Money

to the

same uses

Nor where

'.

a voluntary Conveyance has been made, will the

Court injoin the Party from selling k

But a Settlement voluntary at first may become
good afterwards as where a Father settles Lands
.

and the Husband marries her,

a Daughter,

on

in confidence of such Settlement,

forced

it

may be

en-

With

regard

to

performance of a

a specific

voluntary Agreement, there are, as Lord King observes m , Precedents both ways.
There are cases

which it has been held that an Agreement

under hand and seal, though voluntary, ought to
in

be
it

specifically decreed
.s

ii

n
;

and on the other hand,

been solemnly determined that a voluntary

conveyance cannot be enforced

the Court never

decreeing specifically without a consideration

The

appear to have taken a middle

cases

later

course, and to establish that

Court of Equity will

not interfere against volunteers

of Fraud
1

So,

Pulvertoft

18 Yes. 93

v.

and

it

Buckle

v.

Ch. 464.

"Beardv. Nutthall, I Vern.

Husband and Pollard,
mentioned 2 P. Wins. 407.
v.

Roper, 1 Ch. Ca.

Frank, ib ; and
v. Countess War-

wick, 2 P. Wms. 170. Wentworth v. Deverginy, Prec. Ch.

09.

Fursacre
Ch.

Robinson,

v.

and see
Peacock v. Monk, 1 Ves. 133.
and what is said in Underwood
v. HUchcox, 1 Ves. 280.
p Penn v.
Lord Baltimore,
1 Ves. 450. and see what is
said iu Williamson v. CodPrec. in

rington,
q

427.

Wiseman

Mitchell, 18 Ves. 112. contra

Leach v. Dean, 1 Ch. Hep. 78.
k
Pulvertoft v. Pulvertoft,
18 Ves. 84.
East India Company and
Clavell, 1V( .. Ch. 379, 380. S.
C. Gilb. R< p. 37.
Randall v. Randall, Prec.

84. Frank v.
gee Edwards

unless incases

will net interfere/or volunteers

Pulvertoft,

see

p.

475

Ves. 514.

Coventry

v.

Coventry, at

end of Francis's Maxims in Eq.

See Morrice and Burroughs,
'

Atk. 401.
s

Graham

Jun. 275.

v.

Graham,

1 Ves*

8PBCIFIG I'EitFORMAyer of
will not enforce

I'-

\<

i:

the specific performance of a

Agreement*, unless, indeed,

voluntary

cases where a specific

performance of marriage

Wherever a voluntary D<

is

<1

be specifically enforced, unless

meritorious consult ration

debts, or

such

as the

is

Trustee, the Court

to

Agreement,

the

calls

payment of

effectually made,

as Stock, for instance, transferred", or

veyed

supported

is

it

a Provision for q Wife or Child".

making

Where the Legal Conveyance

*

will never

it

what Equity

or at least

valuable,

not sufficient to

pass the subject out of the Conveyer,

those

in

been decreed, even as to Collaterals

Articles, has

by

327

r.MENTS.

Lands con-

will

execute

the Trustee, and the

as against

Author of the Trust y ; unless where the Party has

aright to put an end to it by his own act, under
z

power of Revocation
Those cases in which a voluntary conveyance

a sole

the possession of the Party during his

kept

in

Life,

and

his

in

possession

at

time of his

the

death, has been held to operate against his Will,

has been where there was a complcat conveyance^

s

Stapillon

v.

Stapilton,

and

see
Griffin v. Nanson,
Ves. 356.
Pulvertoft v.
Pulvertoft, 18 Ves. 99. Lech*

Atk. 10; and see 3 Atk.

399, 18 Ves. 110.
Goriug v, Nasli, 3 Atk.

)S9. see Osgood and Strode,

2 P. Wms. 2 45. Edwards v.

Wins, 222,

Countess Warwick, 2.P. Wmjs.

002;

Pulvertoft,

175. Pulvertoft

v.

18 Ves. 90, 92

ancj see

issaid

in

what
Stephens and True*
;

man, 1 Ves. 74. and Ithell v.

fieane, ib. p. 210.
* Col man
v. Sarel, 3 TSro.
M.S. C. 1 Ves. Jun. 50.
C.

Ellison

v.

Ellison, 6 Ves. 002;

mere
"

v.

Lord

Ellison

v.

Carlisle,

Ellison,

1*.

Ves.

and see Pulvertoft v.

Pulvertoft, IS Ves. 99, 100.
lvx parte
x

Pye, 18 Ves. 149.

v. French, 2 Atk.

Smith

243.
v
Antrolnis
Ves. 40.
z
Pulvertoft

IS Ves 99.

v.

Smith,

v.

Pulvertoft,

12

EQUITY JURISDICTION.

328

Law, of the Property: nothing

transfer in

quisite to add

to the

ment permitted
the Court was

validity of

it

the instru-

to remain uncancelled

upon

called

Will, a mere voluntary Act, as

re-

and

all

to say was, that a

much

as the

Deed,

should not be a revocation of the Deed.

Covenant by a Husband to reconveyan Es-

tate, settled

on him by Mistake,

as voluntary, but

The Court

may be

is

not considered

enforced*.

will not enforce the

performance of

mere result
would not disturb a

a voluntary Agreement for a Lease, the

but the Court

of Bounty;

Lease actually made

Agreement

pursuance of such an

in

*.

Neither will an agreement be decreed, where

the performance of

it

would be a breach of Trust*,

or produce a Forfeiture

h
.

specific performance

of an agreement for a

Partnership, has been refused, as

solved immediately afterwards

it

might be

dis-

c
.

If there has been gross laches, in a Plaintiff, a

specific performance of an

agreement

for the pur*

chase of an Estate, will not be decreed.

The
to be

doctrine, in regard to Contracts stipulated

performed within a given period, that time

not essential, has been quarrelled with

is

Randall v. Randall, 2 P.
404, see Anon. Prec.

Wms.

Ch. 101.
" Willan

v.

Willan, 16 Ves.

82.
* Mortlocke
v. Buller,
10
Ves. 292. S. C. MSS.
b
Brian v. Acton, 5 Vin. Abr.
533. pi. 33.
* Hercey v. Birch, 9 Ves.

d
;

for,

357. S, C. MSS. but see contra Buxton v. Lister, 3 Atk.

385. and Anon. 2 Ves. 629.
d This
doctrine
seems in
some degree to have arisen out
of a misreuort of Gibson v.
See
Patterson, 1 Atk. p. 12.
4 Ves. 089, 690. See RadclifTe
v. Warrington, \2 Ves. 326.
1 Ball and Beatty 68.

PERFORMANCE OF AGREEMENTS.

SPECIFIC

though time

Law,

as at

that

where

yet,

seems,

it

though there may be cases,

and cases arising out of the Conduct

f
,

of the Parties

may induce

B
,

inevitable Accident, &c.

the Court

to relieve, for the

which
Court

a discretion on the subject.

Where
years

h
,

a contract

had long

for instance, a specific

refused'; and laches,

is

speaking,

generally

not being material, or of the essence of

it

the contract

has

not so strictly regarded in Equity,

is

essential

it is

329

sufficient

of

to dissolve

lain

dormant, thirteen

performance has been

much

continuance,

less

the contract

for

where

no step had been taken from the day of the sale,

and six months had elapsed after the expiration
of the time, at which the contract was to be
completed, the conduct of the Vendor was considered as evidence of an

Contract

11

abandonment of the

So, where nothing had

been done

towards performance of the Agreement, when the

Purchaser became a Bankrupt, nor afterwards,

by a subsequent event proved

until the Premises,

to be

much more

valuable than they were at the

time the Contract took place, a specific perfor-

mance was

refused

F Keen and Stuckley, folk,

Eq. Cas. 155. Leehmere and
Lloyd
Lewis,
Lucas
503.
and Collet, 4 Bro. C. C. 409.
and the judgment in that case

in 4 Yes. jun. 6S9, 090. in note

to Harrington and Wheeler,
4 Ves. 080. Spurrier and Han-

cock, 4 Ves. 074. Guest and

Homfray, 5 Ves. 818.
f
See Hearne v. Tenant, 13
Ves. 289. and Radclitfe v.
Warrington, 12 Ves, 325.

See Setcn v. Slade, 7 V.

265.
Clifton v. Taylor, MS.
fc

Wingrield

'v.

Whaler.

Contract and
Agreement, ^L) Cj.30 ; and see
Moore v. Blake, 1 Ball and
Beatty 02.
Vin. Abr.

tit.

k
Lloyd against Collett, 4
stated in
Bro. C. C. 409. S.
note to 1 Atk. 12.

'
Alley
Ves, 225.

v.

Desehamps,

13

EQUITY JURISDICTION'.

330

was held upwards of

It

where one Party has

trifled or

century ago, that

shewn

ness in performing his part of the

backward-

Agreement, a

performance would not be decreed

specific

favour, especially

if

in

his

circumstances were altered

";

but afterwards, it became a prevailing idea, that

where an Agreement was entered into, either
might, at any time> obtain a specific per-

part}-

Lord Kenyan

formance".
the

who

first

resisted

is

that

said to have been

Jiosslyn followed his example", and

Party cannot

upon

call

ready, desirous, prompt, and

there be an

Agreement

and part of the terms

be paid by

is,

who

if it is

for

not so paid, by

Vendor

no man

Money

is

sells a

discharged

Reversion

Money, and it is ridiof making him a compensation* by

not distressed for

is

culous to talk
giving

in particu-

for the sale of a reversion,

default of the Vendee* the

from his Contract

for a

shewn himself

eagerp . If,

that the purchase

a certain time,

held, that a

Court of Equity

specific performance, unless he has

lar,

Lord

and

notion,

him

the delay
If the

Interest on the Purchase

Money during

r
.

Vendee, on a Sale by Amtion,,

his deposit at the

end of the time limited

calls, for

for

com-

pleating the purchase, and insists he will not go

on with the purchase, the Court

Grounds and Rudiments

"B

of

Law and Equity,

n

is

>ee

said in

An c

t:-.

]).

18.

Atk. 12; and what

Jones and Price, 3

92-1.

See Marquis of Hertford v.

Bene, 5 Yes. 720; and see
'

will not

compel

v. Homphray, 5 Ves.
818.
p See Milward v. Earl Thanet, f> Ves. 720. in note.
q Newman against
RogerCL
4 Bro. C. C. 391.

(iuest

b/393.

SPECIFIC

him; but

PERFORMANCE OF AG REE.MENTS.

331

Vendee acquiesces

de-

the

if

in

the

does not sufficiently declare his dissent,

lay, or

a specific performance will be decreed',

If a Plaintiff has failed

an Agreement, or
perform

it,

mance

but

1
;

if

insist

on a specific perfor-

he has performed so

if

part of

bis

has become impossible to

it

he cannot

to perform

much

of his

part of the Agreement, that he cannot be put in

statu quo,

and

the residue

u
,

is

in

no default

or

is

prevented

for not

from compleating

by the default of the defendant

it,

performing

v
,

he

is

intitled

to a specific performance.

There

however, a difference between Agreemails on Marriage being carried into Execution

is,

and other Agccements

are

considered as entire,

parties

fail

and

at

the

either of the

Agreement,

instance of such

decreed in specie, but must be

at law

if

Agreements

performance of the

in

cannot,

it

for all other

left

Party, be

to an action

but in Marriage Agreements

other-

it is

wise, for though either the relations of the

band or Wife should

their

yet

part,

performance.

the

fail

in

Children

If the

Hus-

the performance of

may

compel

Mother's Father,

for in-

hath agreed to give a Portion, and the

Husband's Father hath agreed to make a Settlement, though the Mother's Father do not give the
Portion,yet the Children may compel a Settlement;

stance,

Pinrke

against

Curtns,

4Bro. C. C. 329. Jones and

Price, 3 Anstr. 924.
1

Feversik.m

v.

Watson, Ch.
and

Cas, 26. S, c; Finch 445.

Gilb. Lex Pretoria, MS.

u
Meredith and Wynn, 2
Ch. Cas. 18, 19. "S. C. Pre.
Ch. 312. Gilb. ftep. 70. Lex
Pretoria 240,241.
' Blackwell
v. Nash, 1 Str.
035.

EQUITY JURISDICTION

332
for

non-performance on one part will be no im-

pediment

to

the Children's

receiving

benefit of the Settlement: so,

on the

if

do

in that

the

full

there be failure

same
case would be to

part of the Father's relations

the Court could

all

it is

the

Jay hold on such Estate, as he should claim, towards making good his portion of the Settlement

considered as Purchasers,

for the Children are

and

entitled to all the benefit of the

the Settlement,
a failure
If a

notwithstanding there has been

on one side

Man

Uses under

w
.

after entering into

a Contract for a

Lease commits a Felony, the Court will not enx

force. the Contract
So, if the Tenant has treated the Land in an
.

unhusbandlike manner, and has been guilty of

various breaches of covenant, for which the Lessor

had a

Court

right of re-entry, the

will not decree

a specific performance in his Favor y

Lord

Rosslyn appears to have thought,

who had

Wife

eloped or committed adultery, could not

enforce a specific

performance of

articles for a

and Lord Manners was of the same

opinion, but considered himself as bound by
Authority, and decided % as other Judges had
Jointure

Hervey v. Ashley, 3 Atk.

610. Perkins against Thornton, Ambl. 502. and see Pyke
v. Pyke, I Ves. 377; and what
Biscoe,
in Hilton v.
is said
2 Ves. 309.

"So

said in

Willingham

Joyce, 3 Ves. 1C8.

v.

Hill v.

Barclay, 18 Ves,

63.
z
See what is said in Buchanan v. Buchanan, 1 Ball
and Beattv 206.

Mh.

203.

SPECIFIC PERF0R3IANCE OF AGREEMENTS.

333

b
previously done , that such articles might, under

such circumstances, be enforced.

If the Plaintiff lias taken

wards the performance of

ment, but

all

proper steps to-

his part of the

Agree-

has been prevented compleating

it

by*

the neglect of the Defendant, his endeavours will,

both

at

Law

and

in

Equity, be considered as equi-

valent to performance'.

Insolvency admitted, and not cleared away,

weighty objection

Agreement
It

to a specific

a Lease'

for

is

performance of an

has never been determined that the Assig-

nee of a Bankrupt can compel a Landlord speciperform an Agreement to grant a Lease

fically to

Lord Rosslyn would not say it

was impossible, and would not allow a Demurrer
Bankrupt 6

to the

to a Bill for that purpose

f
;

but Sir William Grant

considered the difficulty as insurmountable

there

a Decision

is

mity with

and strong Dicta

his opinion

See Sidney v. Sidney, 3

Wras. 269.
Winter v.
Blount, 3 P. Wms. 276. in
mote
Seagrave v. Seagrave,
13Ves. 439.
c
1 Fonbl. Tr.
Eq. who
:

quotes Roll's Abr. 455,457,

Litt. s. 385; Blackwell and
Nash, 1 Sir. 033. Hatham and
East India Company, IT. R.

45a

03S.
*

Buckland and Hall, 8 Ves.

and see O'Herliky v.

Hedges,

and

k
.

Bankruptcy has been committed

P.

95;

in confor-

Bankrupt Vendee can-

not enforce a specific performance

If an act of

Scb. and

efr.

130.

See Weatheratl

v. (Jeering,

12Ves.51&
f

Brooke

v.

Hewitt, 3 Acs.

'253.
s
Weatherall v. Geering,
12 Ves. 514.
h
See Moyses v. Little,
2 Vern. 19 1.
See Willingham v. Joyce,
It;-.
3 Ves.
Buckland v.
Hall, 8 Yes. 75.
k
Franklin v. Lord Brownlow, 14 Ves. 550
'

EQUITY JURISDICTION.

33t

by the Vendor, though not followed by

mission, he cannot compel a specific

mance

a Corn-

perfc-

performance of an Agreement

specific

is

sometimes refused, on grounds of public policy.

As where

the Agreement originated in

commu-

nications to the Defendant, by the Commissioners

who

took the Depositions in a cause, and by

the Witnesses, as to the nature and effect of the

Evidence"
On the same ground the Court has refused tt>
enforce an Agreement by an Officer in the Army,
1

for an

Assignment of

or an Agree*

his half pay";

ment by a Gaoler to assign his Fees .

An Agreement must be mutual, in order

to be

enforceable.

Where

therefore

appears that nothing has

it

been done under an Agreement

the Court will

11

not, (except, perhaps, in the case of an Infant*,)

decree a specific Performance, unless the right

to compel,

The

mutual.

and Gray T

case of Hatton

shew

to

is

that

it

is

sufficient

is

often cited

that the

Agreement

should be signed by the Party against

performance

is

whom

the

sought, and so seem the current

of thecase s ; but, says Lord Rede&dalc, in hisob-

Lowe v. Lush, 14 Ves. 547.

m Co'oth v. Jackson,
Ves.
l

12.
"

Stone v.
Anstr. 533.

Mithwold
Ves. 238.

Lidderdale,
v.

Walbank, 2

Hawkins

v.

Holmes,

1 P,

Wins. 770.
See diet,

in

Shannon

v.

Bradstreet, 1 Sch. and Lefr.

p. 58.
r
2 Ch, Cas. 1G4. S. C. 1 Eq.

Ah>. 21.

SPECIFIC PERFORMANCE OF AGREEMENTS.

333

that case, " to give the Statute

such

servations

on

a construction

Frauds, for

it

would make it really a Statute of

would enable any person who had

procured another to sign an Agreement to make

own

it

depend on

it

should be an Agreement or not

his

In the case of Haiton

on

and pleasure, whether

will

."

much

Gray, so

v.

relied

on the subject, the ground

as the leading case

of the decree for a specific performance appears,

(not indeed

but

in the

note in Eq. Cas. Abr.

in the short

Report

in

Chancery Cases',)

to have

been, that the Plaintiff drew up the Agreement

in his

on his

own

hand, and that procuring B. to sign

part, the signing of B.

was not only

it,

a sign-

ing for himself, but as authorised by the Plaintiff

T

and therefore if B. had

Agreement
Court
corneintoa
of Equity against A. the Court

to close the

would have decreed the Agreement

The

reasoning of the Case

is

against

A.

rather strained, but

the case shews, the Agreement must be mutual

and therefore, with

all

due deference,

Lord Redesdale and others y seem

as

it

was

justly considered,

It

is,

not,

to Suppose, a

case where the Agreement was not considered

mutual, but the contrary.

as

therefore, "when

an authority in favor of his

Lordship's interpretation of the Statute.

If the

ami

Agreement be signed only by

Lawrence
Left".

v.

Butler, 1 Sch.

"20.

y
2 Ch, ('as.
Pretoria, Ms,

>

\{\\

" Sed. vid. Wright

nub, 2 Camub. 20U,

at;d

Lex

Lex Pwtoria, M*.

New land on Contracts ,171.
Roberts on

Frauds, p.
of Vend,
ami Purch. 04. Ut Edit,
1

">">.

124, Sugdeii's

v,

Dan-

the Party

Law

EQUITY JURISDICTION.

33(5

who

seeks a specific performance,

not be decreed

it will

The

has been

been

more than

able

that

a
,

under the

not necessary, in this

is

it

very low price

for a
b

very clear

already considered

head of Fraud, and

place, to say

is

Inadequacy of Price upon con-

effect of

tracts

it

where a Sale

has"

or extremely unreason-

the Court will not enforce a specific perfor-

mance; but where by some occurrence, subsequent

Agreement,

to the

becomes

it

a beneficial bar-

gain, or turns out to be a losing concern, the

will be

decreed

vantage forming no objection

d

formance

subsequent

accidental

same

to a specific per-

Where, however, there has been

such an alteration of the Property that

be enjoyed according

to the

it

cannot

stipulations of the

Agreement, a specific performance has been

fused

is

Agreement,

a ivant of certainty in the terms of the

it

will not

be decreed; as where a Te-

nant in Tail, with power to

*

Hall

v.

770.

v. Carril, 1

I Eq. Abr.
Holmes, 1 P.
Contra. Lowther

Butler,

Hawkins

Wms.

v.

Veni. 221.

Collet against Woolaston,

Bio. C. C. 208. see also Day

Newman,

v.

mentioned

Newlaud on Contracts,

in

p. 06.

S. C. 10 Ves. 300.
b

re-

If there

20.

ad-

Barnardiston

v.

Ling-

wood, Barn. 341. see I Eq.

Abr. p. 17. in margin. See
Anon. 2 Ch. Cas. 17/ Hick v.
Phillips, Prec. Ch. 575
and
see Preston and Wasey, Prec.
Ch. 70. S. C. 2 Eq. A Dr. 55;
;

make

a Jointure, arti-

and also the cases mentioned

Tristam and Melhuish, Yin. Abr. Tit. Contract
and Agreement, (P.") Ca. 10,
Squire and Baker, ib.Ca. 12,
c
City of London v. Richin margin.

mond,2 Vern.

423. S. C. Prec,
Ch. 150; and seeCass v. Ruddie, 2 Vern. 280. but see cases
on a contrary principle, Ch.
Ca. 19. Awbry and King, 2
Vern. 472.
d
e

Anon. MS.

City of London v, Mitford.

14 Ves. 4L

SPECIFIC PERFORMANCE OF AGREEMENTS.

in consideration

cled,

Marriage,

oi*

what amount, and the Wife

trix

brought a

Bill for

make

to

what Lauds,

Jointure, without saying out of

33|

died, and her

or lo

Execu-

an account of the Profits of

the Lands articled to be settled, the Bill was dis-

missed

Man

where a

So,

Marriage, promises by

in consideration

pay

letter, to

a Fortune, without reducing

Execution

Many

8
.

Agreement

But the Court

tain

the want of certainty

h
.

will, if

it

can, execute an uncer-

Agreement, by reducing

and where a thing

a specific

it 'into

other cases have been de-

cided on the same principle

in the

Daughter

any certainty,

to

it

a Court of Equity cannot carry

his

of

is

to

to a certainty';

it

be done, but no time fixed,

the Court has, in several cases, decreed a perfor-

mance,

in a reasonable

An Agreement
be enforced

and

';

k
.

to sell, at a fair valuation,

if

the

to be ascertained

are

time

Terms

of an iVgreement

by an Award, and are so

ascertained, a

Court of Equity

Agreement,

any thing

if

may

is

will enforce the

done

to be

as Estates to be conveyed, Sec. m

but

in specie;

if

there

is

not a valid Award, as agreed upon, the Court

will
f

not specifically

perform the

Agreement,

k
Southwell v. Abdev, Hil.
6 Ceo. 2. 1732. MS. "contra
2 Cli. Rep. \J.
Emery v. W;ise, 5 Yes.

Elliot v. Hele, t Vern. 40G.

Hall and Butler, Gilh. Rop.

LexPraetoria, MSS. 1 Eq. Abr.
20.
See Bromley v. Jefferies,
2 Vern. 415. and Emery and
Waae, 5 Ves. S49.
See Allen and Harding,
2 Eq. Ca. Abr. 17. pi. 6.

'

11

v. Gery, 14 Yes.
407.
m As to this see Hall v.

Hardy, 3 P. Wms. 180,

VOL.

I.

846. Milnes

EQUITY JURISDICTION-.

33S

unless there has been acquiescence; or the Agree-*

ment, evidenced by the Award, has been in part

performed

but where the

';

Award

has not been

partly performed, a specific performance has been

.

refused

The

subject matter of an Agreement, in order

must, as before observed, be clear-

to be enforced,

ly defined

many

but in Agreements between

parties,

things not particularized, are understood as

agreed upon.
instance, a

If, for

Man

covenants to

sell a

Fee-

simple Estate, free from incumbrances, and says

no more,

covenant, alone, entitles the pur-

this

chaser to proper covenants.

It

is

well settled

what are the proper covenants, where the Vendor

was himself a Purchaser for a valuable consideration, or where he acquired the Property by
descent, or

by purchase, but not

for a valuable

consideration.

Person agreeing to

must covenant

that he

convey,

Estate

is

in fee;

free

sell

is

an Estate

seized,

for quiet

and has power to

enjoyment

from Incumbrances;

assurance: and

if

the

in fee-simple

and

that the
for further

Vendor purchased

the

Estate for a valuable consideration, and obtained

proper covenants for the Title, he must deliver,
or covenant to

Blundell

v.

produce, his Title Deeds, and

Brettargli,

17

Ves. 232. Cooth v. Jackson,

6 Ves. 34. Milnes v. Gery,

14 Ves. 400. overruling Hall

and Warren, 9 Ves. 005. as to

this point

and

see

Norton

v.

Mascall, 2 Vern. 24.

Bishop and Webster, 1 Eq.
Abr. 51. S, C. Precedents in
Ch.

Specific performance of agreements.

covenant against his

dor's Title

is

own

acts only.

It"

333

Ven-

by Descent, Devise, or otherwise

as a Purchaser, not for a valuable consideration,

the Vendor must covenant, not only

but against the

least,

acts of the last Purchaser; or at

of the Person immediately preceding him

And

if

Covenants should extend

it is

Acts

his

to

the

reasonable

but

was not known whether there was an

reduced

in

if

in-

Money

and the consideration

termediate Heir,
is

'.

under such .circumstances,

the sale takes place

it

there should have been an intermediate

Heir supposed to be dead,

that

for himself,

proportion to the doubt upon the

Title in that respect, there

no need of

is

a cove-

nant against the Acts of such Heir q .

Where

an Estate

agreed to be sold for the

is

payment of Debts, and no surplus remains, the

Court will not require the Heir to covenant any
farther than for his

own Acts

r
;

and the rule

the same in such case, as to a Devisee

but

is

if

Sale be decreed, and after such sale a considerable

surplus comes to the Heir at

Law

or Devisee,

the Heir has been directed to covenant that neither he, nor the immediate ancestor under

he claims; and

whom

the case of a Devisee, thi

in

neither he nor his Devisor, have done any act to

incumber'.
*Vid. Church and Brown,
15 Ves. 263. in note by Mr.
Vesey. Loyd v. Griffith,3 Atk.
and
267. 2 Bos. and Pull. 22
**>e Sugd. Vend, and Purch.
;

etc.

and

Loyd

v. Griffith,

2; 7.

'lb. 2(8^

p. 457, etc. last

Ed. sec also 14 Ves. 239.

z

Vid. Pickett and Loggon,

14 Ves. 239.

3 Atk.

EQUITY JURISDICTION".

340

Where

there

a Lease,

more, this
nants

is

Agreement for
number of years, and no

simply an

for a certain

the usual Cove-

entitles a Party to

'.

In an Agreement between Landlord and Tenant, the

word

clear

',

is

construed, clear of all Out-

goings, Incumbrances and extraordinary Charges,

not according to the custom of the Country, as

Tithes, Poor-rates,

and Church-rates, which are

natural charges on the Tenant

It

seems now

u
.

fully established,

cases to the contrary

v
,

that an

though there are

Agreement

for a

Lease, with usual Covenants, does not include a

Covenant against alienation without licence w

If the Agreement were, to grant a farm Lease
.

and customary covenants of the

neighbourhood, what such usual and customary
Covenants are, might be made the subject of inwith

the usual

quiry before the Master".

He who
bound

takes the assignment of a Term,

to give a

Covenant of Indemnity

is

to the

Assignor, against the payment of the Rents, and

the performance of the covenants: and there

Church

no

between the cases of an assignment

distinction

is

v.

Browne,

15

Ves. 258.

"Lord Tyrconnelv.

v. Slaughter, 1

Esp. N. P.

8.

Duke of

Ancaster, Anihl. 240.

v
Vere and Lovedon, 12 Ves.
179. Jones v. Jones, 12 Ves.
186. following Folkingham v.
Croft, 3 Anstr. 700. Morgan

Church v. Browne, 15 Ves,

258. and Browne v. Raban,
15 Ves. 528. following Henderson v. Hay, 3 Bro. C. C.
032.
*

Boardman,

Ves. 471.

v.

Mostyn, 6

SPECIFIC PERFORMANCE OF AGREEMENTS.

by the

Of all

and by an Assignee of

original Lessee,

that original Lessee

objections to a specific performance, the

want of a Title, is that which

urged by a Defendant.

A Purchaser
Title

'',

341

is

most frequently

not obliged to take an Equitable

is

unless where Estates are sold under a de-

cree, before a Master'"; but has a right to insist

having a clear Legal

Title,

commencing

at

upon
hast

sixty years anterior to the time of his purchase

and sometimes

a longer period,

for

where there

are remainders, after existing Estates Tail

a
.

made to a Title, the Chancellor may be called upon to decide, whether a

good Legal Title can be made but as this is a pure
question of Law, if the Chancellor has any doubt,
If objections are

he usually

refers

such doubts

for the

opinion of

Court of Law, the most authoritative forum on

such points. The Equity Reports abound with
a

decisions on objections

made

to Titles,

but the

consideration of such of them as relate merely to

questions of Law,
\\*ork.

is

not within the design of this

In treating of this subject,

fore confine ourselves

arise

Interest

of the

Stains v. Morris,

Vendor, and the Interest

IS Yes.

Beard,
cruated,

Cooper

v.

Denne, 4 Bro.

C. C. M>. S. C. 1 Yes.

Jun.

565.
c

such questions as can

difference in value between the

13.
b

shall there-

only in Courts of Equity.

If there be a
real

to

we

Sugd. Vend, and P.urcb.

271 ; and see Chandler and

Dick.

and

392.

there

Marlow and
Wnra. 198. and

als.o

Smith, 2 P.
v. Wright, 3 Yes. 22.

Shaw
*

&c.

Sagd. Vend. &c.

p.'25'J,

EQUITY JURISDICTION.

342

represented as proposed for Sale, (though inno6

cently misrepresented ,) the Purchaser

entitled if he chooses

to abide

is, it

by the Purchaser,

to have such difference deducted from

chase Money', by

way

can the Vendor,

seems,

it

refuse

is

in value,

is

h
:

Pur-

his
;

nor

if

the

of compensation*

Master, on a reference to him,

tain the difference

seems,

and

unable to ascer-

but the Purchaser

content to take such Interest as can be con-

veyed

to him,

with such Indemnity, as under

circumstances

the

all

the Master shall think just

and reasonable, a Decree

to that effect will,

at

the instance of the Purchaser, be made.

It

is

true, generally,

a Purchaser

may,

if

but not universally

that

',

he pleases, accept, nay

insist

on compensation, if he undertakes on his part to

do what the Court shall order k ; but the Vendor
cannot,

it

seems, (except where the Party gets,

substantially, that for

which he contracts

upon the Purchaser's taking

Hill v.

Buckley, 17 Ves.

Ves.

'

Paton

and Bea.
Milligan
I

Seaman

v.

16

what said in
Vawdry, 16 Ves.

and. see
v.

Cooke,

275, ami 290.

8 See
Halsey
13 Ves. 77.

is

and

Grant,

h
Mortlocke v. Buller, 10
Ves. 316. but see the case as
to an agreement to assign a
lease, mentioned 1 Fpnbl. 212.
and what is said 1 Ves. and
Bea. 225.

,)

insist

a compensation.

therefore, a Purchaser agrees to

401.

If,

buy a Freehold

v.

Rogers, 1 Ves,

p. 353.

lb.

See Calcraft v. Roebuck,

1 Ve6. Jun. 221. Drewe and
Corp, 9 Ves. 368. Halsey and
Grant, 13 Ves. 78 and see
*

Horniblow v. Shirley, ib. 81.

Dyer and Hargrave, 10 Ves.
c
Queen v. Farquhar,
507.
11 Ves. 467. Alley and Deschamps, 13 Ves. 228.

SrEGHFIC PERFORMANCE OF AGRCEMENTS.

that

is

Copyhold

If a contract be for a

,n
.

one

to accept

be compelled

Estate, he cannot

343

House

and a Wharf, the Wharf being the principal

ducement
it

Purchaser

to the purchase, a

so, if

Land be represented

Leasehold adjoining, and

is

will not,

House only

seems, be obliged to take the

And

in-

with

as Freehold,

found

to

be Lease-

bold only, the Purchase would not be enforced

Lessee,

who

described his Interest as

Term,

years, the residue of a

brances, but

who

".

fifty

from Incum-

free

had only three years of

in fact

an old Term, and a reversionary term from another

Lessor, and old Incumbrances not

discharged, could not,

it

a specific performance

shewn

to be

was determined, enforce

Purchaser has been held not to be entitled to

an abatement for a deficiency in the quantity of

acres

sold,

where the particular described the

Estate as containing

" be

the

by estimation,

same more or

Where

Bill

mance of

contract

less'

is filed

for the

m 4 Bro. C. C. 497. 9 Ves.

n
That was Lord Erskine's
opinion in Stapylton and Scott,
13 Ves. 427. contrary to Sir
Thos. Sew el's decision, mentioned in Seton v. Slade, 7 Ves.
270; and see what is there said
by Lord Eldon, and the case
as to tythe there mentioned
and9ee PooleagainstShergold,
2 Bro, C. C. 118. see also

many acres,

specific

perfor-

purchase of Real

for the

8G8.

so

.'*

Halsey and Grant, 13 Ves. p.

78. but see Drewe and Hanson,
6 Ves. G75.
Fordyee and Ford, 4 Bro.
C. C. 498 ; and see Drewe v.
Corp, 9 Ves. 3(>S.and Alley and"
Deschamps, 13 Ves. 228.
v White
v. Folgambe,
11
Ves. 337.
q

Winch

1 Ves.

v.

Winchester,

and Bea 375,

EQUITY JURISDICTION.

344

Estate, the Defendant, in ordinary cases, may, if

he chooses, have a Reference

see

if

a good; Title can be

to the Master,

made

to

and the Court

never acts upon the

fact, that a satisfactory ab-

stract of

was delivered

the

Title

unless the

Party has clearly bound himself to accept the

Title

upon the

abstract", as

for a considerable time,

to the abstract

abstract being

by taking possession

and making no objection

But the circumstance of an

s
.

shewn

to a Purchaser, previous to

the filing of a Bill for a specific performance, in

which the

of Title appears,

defect

bind the Purchaser

state

Though

e
.

any objection

to the Title as

may

and the reason seems

to be, that

pelled

to

it

appears in

on a reference

Misist

produce

all

power

his custody or

and solid objections

by the ordinary

these cases, the other Party

in

not

the Party cannot

the abstract, yet he

Decree,

does

is

com-,

the deeds, papers, &c. in

;

from which reasonable

to the Title

which would never have

may

fallen

be furnished,

under the view

of the Purchaser, unless the Court

wrung from

the conscience of the Vendor that sort of infor-

mation, which a Purchaser could by no other

means acquire

may be

Inquiries and Examinations also

by which the

directed,

way,

gifted in a
Jenkins

v.

'Fleetwood

v.

Hiles,

in

which

6 Ves.

Green, 15 Ves,

it

Title

may be

never could, upon a

594; and see Fludyer v. Cocker,

12 Ves. 25.
l
Stapylton v. Scott, 16 Ves,
274.

SPECIFIC PERFORMANCE OF AGREEMENTS.

as the

Vendor thought

Defendant, however, against

whom a specific

mere abstract, authenticated

proper

T
.

performance
Fight

his

345

to

is

prayed,

may by

and

a reference,

upon

his

answer waive

upon the

call

his objections to the Title;

Court

to decide

but

such case the answer must be unequivocal,

in

and the Defendant must not be drawn into it by

surprise or fraud, and want of full information, and
its propriety not rendered disputable by any subsequent discovery

And

highly reasonable, for

this

Title,

and the Evidence,

irremoveable objections to the

are

would be an

it

seems

clearly appears to the

if it

Court, upon the Pleadings

that there

course

idle

and unnecessary ex-

pence to the Parties, to make a reference to the

Master

x
.

"I have heard

it

said,"

says Sir Thomas Clarke,

"aTitle purchased under a Court of Equity, must

be like Caesar's Wife, even without any suspicion

and certainly the Court will

;"

always

pause, where doubts raised

sonable and

and will

fair,

upon a Title, are reanot compel a Purchaser

to take Property, not marketable 7 .

establish

it

as a

Many

cases

Rule (impugned, indeed, in a

very recent decision',) that though in the JudgT

6 Ves. G53.

Jenkins v. Hiles,
Ves.
C53, (555.
x
See Omerod v. Hardmaq,
5 Ves. 731.
7

Sedgewick
? Ves. 57
v

See Marlow and Smith, 1

Wins. p. 201 and Lord
Braybroke v. Inskip, 8 Ves.
'

v.

Hargrave,

P.

428.

See
1 Ves.

Piscoe

and Bea.

v.

Perkins,

192, 3.

EQUltY JURISDICTION*

34fr

mentof

the Court, the better opinion

Title can be made, yet,

if

there

is

is,

that a

a considerable,

a rational, doubt, the Court has not attached so

much

own

credit to its

opinion, as to compel a

Purchaser to take the Title, but leaves the Parties to

Law

and

whether the doubt

this,

as to

the quantity of the

Seller

is

Nor will

Estate of which the

upon

possessed, or

arises

legal* objection.

a case for the opinion of a

Court of Law,

r
be directed, without the Purchaser's consent and
;

if after a certificate of the

Court of King's Bench,

the Chancellor retains a doubt, a Purchaser will

not be compelled to take the Title

d
,

but may-

require another case, directed to another Court

And where

the objectioa has been respecting

the legitimacy of a Party, the Court has said there

are

many cases in which

Jury will collect the fact

circumstances, in which

of legitimacy from

might be

attended

with so

much

it

reasonable

doubt, that the Court would not compel a Purchaser to take

verdict

it,

merely because there was ^

f
.

But though the Court will not force a doubtful

Title upon a Purchaser, yet in these cases, it
seems, the Court will govern itself by a moral
certainty
b

for

Stapylton

it

v. Scott,

is

impossible, in the nature of

16 Ves.

274 and see Rose v. Calland,

5 Ves. 188,189. and Cooper v.
Denne, 1 Ves. Jun. 5C5. and
;

Wheateand
I

Uoake

v.

Hall, 17 Ves. 80.

Kidd, 5 Ves, 647.

Sheffield v.Lord

Mulgrave,

2 Ves. Jun. 529.

e
Trent v. Hanning, 10 Ves.
500.
f

See Lord

Braybroke

Inskip, 8 Ves. 428.

v.

PERFORMANCE OF AGREEMENTS.

SPECIFIC

things, there should be a mathematical

of a good Title

Hi*?

certainty

1
.

There are frequently suggestions of old

entails,

and often doubts, what Issue persons have

whether more or fewer

left,

and yet these were never

allowed to be objections of that force, as to overturn a Title to an

It is

Estate

no objection,

rived under a grant from the

Crown,

a reservation of Royal Mines,

been an exercise of the

there ever will

Crown

if

that there

there has never

no instance where the

of Royal

reservation

Mines, without any right of Entry, that

Man's Estate, and dig up

search for such Mines

once opened, they can

restrain

though,

has

it

come upon

granted a licence to any person to

another

is

right, or a probability that

for there is

only a bare

has

de-

for instance, to a Title,

his

Soil

and

when they are

the Owner of the

working them, and can either work

Soil from

them themselves,
work them c

or grant

a licence for others to

Where

the Title

is

but there are Terms

clear,

or Incumbrances to be got in, the established

course

is,

the Title

that

the

Master reports

and a Reference

approve a Conveyance
arises,

whether

all

made

is

in

favor of

to him,

the parties to a proper

veyance are brought before the Court, and

appears

all

Weaton, 3 Atk.

lb,

if it

made

Parties

d
,

Hj.

See Arg. in Omevod

Ilardman, 5 Ves. 725.
*

J20.
*

v.

Con-

necessary Parties are not before the

Court, such Persons must be

1 -yd daJ

to

and then the Question

r*

equity jurisdiction:

348
otherwise,

Costs'

would be

the Bill

An

with

dismissed

Exception, therefore, cannot be tak-

en to the Master's Report of a good

Title,

on the

ground that the Trustee of an outstanding term

a Lunatic, for that

is

a question of Conveyance,

is

not of Title*.
It

seems doubtful, whether upon a Contract to

sell a

Lease, the Vendor

is

bound

to

make out

f
but the prevailthat the Lessor has a good Title
;

ing opinion appears to be, that he is; and in general,

it

it,

where the convenience of the case requires

provided in

is

or in

Particulars of Sale,

private Agreements, that the Purchaser shall not

insist

on seeing the Lessor's

Title.

If Assignees exhibit to sale a Freehold Estate

of Inheritance, not marking by the Contract, that

they meant to

sell

any thing more than

it

shall

turn out the Bankrupt had, they are bound, as

other persons are, to
tance, free from

a Title to the Inheri-

Incumbrances g but an Executor,

;

not bound to covenant for the Title

selling, is

When

make

Conveyances

are directed,

11

by a Decree,

they must be settled by the like kind of Rule as

men

of

Judgment among Conveyancers would

direct',
*

See Loyde

Atk. 267.
e
Berkley

v.

Griffith,

v.
v.

Daugh,

10

dofftrine in

Pope

Simpson, 5 Ves. 145.

S. P.

ruling the

Ex

parte Trender, MSS. see

Hancock,
Spurrier v.
4 Ves. 067. Macdonald and
Hanson, 12 Ves. 277.
h
Staines v. Morris, 18 Yes.

Ves. 380.

also

'White v. Foljambe, 11 Ves.

337; and see Radcliffe v.
Warrington, 12 Ves. 320. and
Gompertz v.
12 Ves. 17.

White v. Foljambe, 11
Ves. 345. and see Macdonald
and Hanson, 12 Ves. 277, over-

17.
'

267,

Loyd

v.

Griffith,

3 Atk.

SrECIFIC PERFORMANCE OF AGREEMENTS.

It

Vendor should

for a specific performance, that the

have a good Title at

seems, that

the time of the

Sale, for

14

and the Decree of the Court

cases always

to inquire

is

suf-

is

in these

whether the Seller caw,

make

not whether he could,

of executing the Agreement

a Title at the time

Purchaser, therefore, cannot insist on being:

discharged from his Purchase,

Report of a defective
ble of being

dor getting

upon

Master's Report

the Master's

same

Title, if the

made good within

where the

as

it

he can, even by an Act of Parlia-

if

ment, obtain a Title before the Report, that

if)

not necessary, in order to obtain a Decree

is

ficient

,'j

is

capa-

a reasonable time

that the

is,

Ven-

in a Term,, or getting administration,

&c, will have a Title

but the Court will put

the Vendor under terms to procure

that speedi-

ly.

The Court

will not

distance of years,

he

is

ready to

come

to

make

to the

good

specific performance.

description,

suffer a Plaintiff, at the

Title,

Court and say,

and

call

Cases, however,

must be governed by

for a

of this

circumstan-

ces".

When, on
that a

the

a Reference to the Master, he reports

good Title

Vendee may

to
file

Purchase cannot be made,

a Bill against the

Langford r. Pitt, 2 P.
630. Mortlocke v. Builer,
10 Ves. 315
und see
Jenkins v. Biles, 6 Ves. G54.
Wynn and Morgan, 7 Ves,

Wms.

205, 6.

'

Langford v.

Vendor

Pitt,

to

2 P.Wms.

630.

m Coffin

and Cooper,

14

Ves. 205.
n

Wvnn

v.

Morgan, 7 Vts
v. Hiles. 6 Vw

205,0. Jenkins
640.

EQUITV JURISDICTION *
-

3.50

have the Contract delivered up

but

it

seems,

that compensation will not be granted for the loss

sustained by the failure of the Contract, though

in the alternative, a specific

the Bill pray,

per-

formance, or an Issue, or an Enquiry before the

Master with

view

to

damages

that being

properly the subject of an Action

t, Stewart

power

his

out of
if not

his

more

In Denton

observable the defendant had

it is

p.

it

in

Agreement, and put it

power pending the Suit. " That Case,
to perform the

supportable on that distinction,

says Lord Eldon,

is

not,"

" according to the principles

of the Court*."

may be

It

proper to observe in conclusion of

subject of Equity, that

this fruitful

if

the Pur-

chaser does not pay the Purchase-money at the

time fixed, he will be chargeable with Interest;

must bear any loss, so likewise will he

be entitled to any profits that arise from the Esand

tate

as he

s
.

In general,

if

a Purchaser

is let

into possession

and perception of the Rents and Profits of the

purchased Estates, he must pay Interest for his
Purchase-money
there

may

1
;

but

it

395.

Gwillim

v.

Stone, 14 Ves.

128.

17 Ves. 270. in note, menalso, 1 Fonbl, Eq. 43.

and 2 vol, 438.
*

tione.

not

be a case where he

Todd and Gee, 17 Ves. 273.

overrule
to
which seems
Greenaway v. Adams, 12 Ves.

is

universally so

shall

u
:

not pay In-

17 Ves. 276.
Davy v. Barber, 2 Atk.
490.
l
Flndyer v. Cocker,
S
12 Ves. 25. Blount v. Blount,
3 Atk. 037.
u
See Blount v. Blount, 3
s

Atk.6J7.

SPECIFIC PERFORMANCE OF AGREEMENTS.

notwithstanding he has the Rents and

terest,

Profits

351

as

where there

are objections to the Title,

and the Purchase-money lays unproductive, and

the Vendor

and afterwards

Vendee

the

will be

Rents and

made good, the

is

and the

entitled to the Estate

Profits,

chase-money

Title

circumstance,

that

notice of

has

and the Vendor

without

only,

Pur-

to the

And

interest".

though, generally, a Purchaser cannot be called

upon
he

Money,

for his

until he has a Title, yet

islet into Possession

where

upon a mutual apprehen-

made

sion that the Title could be immediately

without

he cannot,

good,

express

retain the possession, without,

Interest for the

Where

the

ficulties, in

Purchase-money

Contract,

paying

at least,
7
.

Vendee has created unnecessary difrespect of the Conveyance made to

him, he v ill be ordered to pay Interest from the

>

time he ought to have executed the Conveyance'.

It

seems doubtful whether when Interest

able,

it is

at four or at five per

Cent.

The

was four per Cent. x but in a very recent

five per Cent, was awarded y
,

is

old

pay-

Rule

decision,

Money

paid in as earnest at the Sale of

Estate, in whatever
u

manner

See on this subject PowMartyn, S Yes. 146.

Cibson v, Clarke, 1 Ves.

ell v.
v

and Bea. 502.

w

Blount

v.

Child

v.

an

payment

buck, 1 Yes. jun. 221 and see

Sugd. Vend, and Purcli. 404.
last Edition, and cases cited in
;

note.

Blount, 3 Atk.

C37.
x

laid out,

is

Lord Abingdon,
v. Roe-

\ Ye?, jun. 94. Calcraft

Waldron v. Forester, F.xch.

30 June 1SU7, particularly
mentioned Sugd. Vend, and

Purch, 405,6, &c.

EQUITY JURISDICTION,

352

much

for so

of the Purchase-money 2 . If laid out

without opposition from the Seller

presumed

be with his assent.

to

the authority of the Court,

on both a

under

If laid out

be binding

will

it

If a Vendee,

who

has not compleated his Pur-

chase for want of a Title

his

must be

it

being made, deposits

Purchase-money, in the Purchase of Stock*

and gives notice of such deposit

Vendor,

to the

have the effect of stopping Interest

this will

the Vendee runs

all

but

the hazard of the rise and

ot the Funds, nor in case of a rise, can the

dor claim the benefit

fall

Ven-

b
*

Where

a Trust is raised by Deed or Will for

payment
of Debts or Legacies generally % (and
the
the Rule is the same where there is a general
charge,) and afterwards a specific disposition d ,

a Purchaser or Mortgagee of real Estate

as he

is,

is

not

Money,

obliged to see to the application of his

where there

is

a Schedule, or particulariz-

ing of the Debts % unless there be any collusion

between the Purchaser and the Trustee or Exe~

cutor

f
.

If

more Land

sold than

is

is

sufficient

to pay the Debts, that will not prejudice a Pur-

chaser

s.

But though

a general charge does not

oblige a Purchaser before a Suit,

1
Doyley against Powis, 2
Bro. C. C. 32."
* Poole
against Rudd, 3
Bro. C. C. 49.
b

Roberts

v.

Massey,

13

Ves. 561.
c See
Co. Lit. 290. b.
d
Ves. 654. in n.
lthell v. Beane, 1 Ves. 21 5,

Dunch

v.

Spalding

to see to the

Kent, 1 Vern 200,1

Shalmer, 1 Vera.

v.

301. Hardwicke v.
Anstr. 109.
f

Mynd,

Rogers against Skillicorne,

189. Lloyd v. Baldwin,

Ambl.

1 Ves. 173.
Spalding
Vein. U0L

v.

Shalrnert

TRUSTS.

application of the

menced,

it

plication h

seems,

Money, yet after a Suit comlie is bound to see to the ap-

And where

Lands

Act of Parliament,

Trustees, by

for a particular purpose,

Mortgagee

353

is

it

Money

the

to see

arc

vested

in

mortgaged

to be

incumbent on the
applied according-

iy-

Purchaser of an Estate under the Decree of

the Court,

Mode

not answerable for the

is

in

which the Estate has been sold by the Court, nor

for the disposition which the Court
makes of
the

Money

k
.

TRUSTS.

VI.

We now proceed

to the consideration of Trusts,

of Jurisprudence peculiar to this coun-

a species

and of

others, the most fruitful in cases,

and comprehending a great variety of Learning
but the Rules on this subject, were in the time
of Lord Hardwicke, as he has observed, " prettv
try',

all

well

ascertainedV' and

more reduced

to

the great men,

may

Trusts,

have

by

certainty,

since

who have succeeded

still

him.

be created of Real, or

Estate; and are, either,

been

the decisions of

Personal
2.

Im-

plied: under which head of implied Trusts,

may

11

Walker
Ambl. 077.

v.

Cot'erel

'

v.

Smallwood,

Hampson,

Vera. 6.
k

103.

Express,

v.

Lloyd
1.

v.

12 Ves.
Jones, 9 Ves.

Price,

or,

05. Lutwych against Winford,

2 Bro. U. C. '248; but see
Lloyd v. Baldwin, 1 Ves. 173,
1

Curtis

VOL.

1.

T. R. 759. in N
Letter to Lord Kaims, Life
of Kaims, I Vol.243.
b

A A

EQUITY JURISDICTION.

354

be included,
or

such Trusts

all

Express Trusts,

as are not express.

by Deed,

and

resulting- Trusts,

by Will

are^

Implied Trusts

created
arise, in

general, by construction of Law, upon the acts or

situation of Parties.

Every Cestui que Trust, whether a volunteer, or

not, with, or without

consideration,

is

entitled

to the aid of a Court of Equity, to avail himself of

the benefit of the Trust

Cestui que

Trustee

is

Trust and

and,

between the

as

Trustee,

his

(unless the

such by Implication only) the Statute

a

of Limitations does not apply

Uses led the way to Trusts.

Indeed, Uses and

Trusts were similar in their original, and both

semble the Fidei Commission of the Civil

introduced by Augustus

The

f
.

use before the Statute of Uses s

plied, not

that

Law

re-

6
,

as

definition of an
,

may

still

be ap-

only to such uses as are not affected by

Statute, but

to Trusts'

which had

origin subsequent to the Statute,

quence of it.

It

was defined

reposed in another,

their

and in conse-

to be, a

confidence

who was made Tenant

of the

Land, or Terre-Tenant, that he should dispose of

the Land according to the intention of Cestui que
Use, or him to whose use

3P. Wms.

Townshend against Towns-

222.

hend, 1 Bro. C. C. 551. and

see Beckford v. Wade, 17 Ves.
87.
e

Bluckst. Comment. 2 Vol.

p. 327. Gilbert on Uses, p. 3.

was granted, and

it

suf-

Bacon on Uses,
Use of the Law, 153.

last Edition,

19.
f

Inst. Lib. 2. Tit. 23.

s.

1.

in proremco.

27 Hen.
Sparrow
Atk. 798.
B

8.
v.

c.

10.

Hardcastle, 3

trusts.

him

for

to take the

355

Where, therefore, a
A. and his Heirs, to the
13. and
his Heirs, A. the

Profits'.

Feoffment was made to

use of (or in Trust

for)

Tcrre-Ttnant had the legal Property and possession

of the Land, but B. the Cestui que Use, was,

Court of Equity, held

fits,

to

be entitled

Uses proved seriously inconvenient

respects;

more

and Forfeitures

especially,
to the

All the

quences of them, are enumerated

Use

executed

is

to the use,

pleat

i.

e.

as in

of the

ill

by which

Statute, the

the possession

is

is

conveyed

made com-

Lands and Tenements

Equity.

The Equitable

Cestui que Use before the Statute,

a legal Estate, and having

all

conse-

the preamble

in

and the Cestui que Use

Owner

Law

at

many

in

by avoiding wardships

Crown

to the Statute of Uses m ;

the pro-

to

and to the disposal of the Estate k

in

well

as

Estate in the

was turned into

the consequences at-

tached to a legal Estate, the Evils incident to Uses

were remedied.

The common Law Judges,

before

bunal, Uses so converted into legal

determined upon, decided

raised

>

Feoffment

and his Heirs, to the use of B. and

only the

first

use,

his

to

A.

Heirs, in

and that the second was

'

were

C. and his Heirs, the Statute executed

riowd. 352. Gilb. on Uses,

p. 1. Chudleigh's Case, 1 Rep.
121.
k

Estates,

Tri-

that, a Use could not be

upon a Use a and that on

trust for

whose

2 Black. Com. 327.

Lloyd v. Spitlet, 2 Atk.

1G0. S. C.
Barn. 384.

m 27 Hen.
30 Hen.
Dy. 1>5. A.
n

A A 2

mere

3 P. Wins. 34l.
8. c. 10.
8.

TyreU'* Case,

EQUITY JURISDICTIONS

356
nullity.

They were

They adhered,

as

tution they were

of the

Statute,

not, perhaps,

blameable

in this.

by their oaths and by the consti-

bound

to do, to the strict letter

And though by

their

rigo-

rous interpretation of the Statute, they occasion-

ed the opening again of the doors of Courts of

Equity, which the Statute had almost shut, their
inflexibility

not therefore to be lamented,

is

Sir Robert At-

that great constitutional lawyer,

kgns,

somewhat peevishly

insists

matter of exultation to every one,

as

but must be

who has soundly

reflected on the Legal Polity of this country.

The Judges

also held, that as the Statute

tions only such persons as

of others,

men-

were seized to the use

did not extend to Copyholds?, or to

it

Terms of Years, or other chattel Interests, whereof

the Termor is not seized, but only possessed; and,
therefore,

if

term of one thousand years was

limited to A. to the use of (or in Trusty for B. the

Statute did not execute this use, but

Common
Lands

La\v

They

left it as at

further held that,

are limited to Trustees to receive

over the Rents and Profits, the use

ed, but the

purposes'.

Lands remain
Where,

in

them

is

to

eery in Causes of Equity.

p Co.
Copyh. s. 54. Cro.
Car. 44. 2 Ves. 257.
Bac.
Uses 42. Poph. 76.
Dver. 369. 2 Black. Coin. 336.

and pay

not execut-

answer those

therefore, there

Enquiry
into the Jurisdiction of the Court of Chan-

where

is

Convey.

r
36 Hen. 8. Bro. Feoff, al.
Uses, 52. 2 Bl ck. Com. 33(3.
Har. Co.
Litt. 290/
n. 1.
s. 2. Treatise of Equity, Book

2.

Ch.

1. s. 4.

3j7

TRUSTS.

ance to Trustees

Trust

in

to conveif,

or to

sell

or

to

pay the Profits

in all cases,

to a

Feme Covert and

it

seems

where any controul and discretion

given to the Trustees

Profits of the Estate,

make

as

is

the application of the

in

as to

pay Annuities*, or to

repairs, or to provide for the

maintenance of

the Cestui que Trust, the legal Estate remains in

the Trustees, unexecuted by the Statute*.

It

was observed by Lord I/arduiche,

Statute of Uses, " has had no other

add

at most three words

that position

to

than to

seems very questionable.

it

The

but
Sta-

professed to

and though a new species of uses, under

name

the

effect

a Conveyance*"

tute remedied the inconveniences

remedy

that the

of Trusts, afterwards sprung up, yet the

Courts of Equity took care that while they an-

swered

all

the good purposes of Uses, they should

not produce any of the inconveniences which the

Statute of

Henry

was intended

the 8th

^As Uses executed are to

ses, legal Estates,

this

Work

to treat

it

is

intents

and purpo-

not within the

on them more

s
Bac. Uses, 8. Roberts and
Diwvell, 1 Atk. 007.
Bagshaw v. Spencer, 2 Atk.
578. Wright v. Pearson, Ambl.
300.
1

all

Pybus and Smith, 3 Bro.

340. Neville v. Saunders, 1

Vein. 415. Harton v. Harton,
7 T. Rep. 052.
' Doe
on dem. White v.
Simpson, 5 East. 102. and see
Cibson v. Rogers, Ambl. 93.
* See 2 Vol. Blac. Com.
336.
tt. 12, by Mr. Christian, Silves-

to avoid.

design of

at length.

The

Wilson, 2 T. R. 444.
Shapland and Smith, 1 Bro. 75.
x
Hopkins v. Hopkins, 1
Atk. 591. BlackstoDe, 2 Com.
terv.

330. says also, with this passage

in his eye, the Statute lias had
" little oilier effect than to
make a slight alteration in the
formal words of a Conveyance.'*
1
have a very fi.U M -. note
of Hopkins v. Hopkins, but
there is no such remark as
that alluded to
Atkyns 8 Re-

port.

EQUITY JURISDICTION.

33S

doctrine as to the creation, the limitation, and the

extinguishment of uses, as well as of resulting uses,

belongs principally to the consideration of Courts

Law

of

nor

here required to observe on the

is it

various Conveyances operating under the Statute 01

Uses

such

which pass Uses by transmu-

as those

lease,

and Re'

as a Feoffment, Lease

tation of Possession,

Fine and Recovery; or those which raise Uses,

without a transmutation ofpossession, as a Bargain

and

Sale, or a covenant tq stand seized*

the doctrine of Springing

and Shifting

nor on
Uses, or

Uses operating through the medium of Powers:

such

common in modern settlements,

powers, so

as

and very prudent

2
,

of leasing, jointuring, charging,

selling, or exchanging; or of powers of revocation*

All these doctrines relate to what are considered

powers over

as legal

as such,

legal Estates, and,

(except where there has been a mistaken execu-

Power b or where the Power

Trust
upon which we have

tion of a

with a
S(

b
,)

nor have Courts

power

original or exclusive

These matters,

it

is

of Equity any

to decide

upon them.

true, are often considered

in

Equity, and a thorough knowledge of

Courts

o)

them

is

indispensable

Law

Writers, and to the

but

'These Conveyances are

well observed upon byMr. Butler in his note to Co. Litt. 275 h .
270*.
'

coupled

before ob-

are within the adjudication of Courts of

Common Law

See Sutton

Yes. 538.

is

v.

Jones,

15

it

is

to

the

Common Law
a

Common
Reports,

The subject of Powers, and

doctrine which suris treated of in a

very masterly manner iu Mr8
Sugden's work on Powers,
b
Ante, p. 44.
f See ante, p. 46,
all

the

rounds them,

TKUSTS.

must be had,

that reference

359

most authori-

for the

on these subjects.

tative decisions

Indeed, a Person having a legal Estate only, and

no

beneficial Interest, cannot,

to

Equity

any purpose

for

seems, come in-

may, however, be

It

remarked, that the Courts of

Common Law

upon the creation of

their decisions

way

it

Estates,

in

by

of Use, shew more indulgence to the intent

of the Parties, than they do in regard to the creation of Estates

It

is

by Conveyances

to Trusts,

at

Common

and Trusts only, that the Reader's

attention will here be particularly directed

" creature of Equity,'* as

the

Common' Law

which, Courts
peculiar,

and

Law*.

takes

it

called,

is

no notice,

of Equity

to that

of which

and over

have an original^ a

exclusive, Jurisdiction.

In the definition of an Use, as

it

existed before

the Statute of Uses, Trusts have already been defined.

Trust

is

in

other

words

a right in

the Cestui que Trust, to receive the Profits, and to

dispose of the Lands

in

Equity

6
,

and

confidence between Parties, that no

Law

will lie

is

such a

Action at

There may, however, be special

Trusts, as for the accumulation of Profits, the Sale

of Estates,

or the conversion of one Trust

into another,

See Williams v. LordLons3 Ves. 757.

2 Vol. Fonbl. Eq. p. 47.

dale,
d

which may preclude

in note.

'
f

Mod.

Sturt
C12.

all

Fund

power of in-

17.

r. Mellish,

2 Atk,

EQUITY JURISDICTION.

360

terference on the part of Cestui

such special Trust he

satisfied

que Trust,

until

In general, Courts of Equity in the construction

of Words, by which Trusts are limited of

real or

personal Estate, follow the Rules which Courts of

Law

have

laid

down,

in regard to the creation

and

11

limitation of legal Estates

whether the

this,

Trust be created by Deed or by Will

the words in a

Deed

mon

to both

Courts

is
k

it is

an absolute

decided by Rules comthe only difference being,

that where a Trust Estate

Will,

Whether

''.

or a Will, pass

or a limited Interest,

and

created by

is

Deed

or

determined upon in Courts of Equity,

and where a conveyance or a devise is of a legal

Estate, it is determined on in Courts of Common

Law

but the decision,

each Court, in the

in

construction of words of limitation,

is

guided by

the same Rules.

to this general Rule,

The principal exceptions

are in the cases, of Articles before

adverted to under the

head

Marriage ,already

of Mistake', and in

the cases of what are termed Executory Trusts

which

The

will presently be adverted to.

Cestui que Trust has, in

most

same power over the Trust Estate,

b Sanders on Uses,
1 Vol.
215. last Edition.
Duke of Norfolk's Case,
3 Cha. Cas. 48. Bale v. Coleroan. 1 P. Wms. 143. Garth
v. Baldwin, 2 Ves. 055. Watts

respects, the

as

owners of

P. Wms>, 108. Banks

Sutton, 2 P. Wms. 713.
Wasstatf' v. WagstarF, 2 P.

v. Ball, 1
v.

'

Wms.
k

25JJ.

See

Duke

of

Norfolk's

Case, 3 Cha. Cas. 48.

Ante, p. 50.
1

TRUSTS.

Estate

of; and the

possessed

Estates are

legal

#51

same manner

in general, liable in the

is

except

a legal Estate,

He may alien

it

and any

respect of

in

legal

Trust
as

Dower

conveyance or

as-

surance by him has the same effect and operation

upon the Trust,

as

the

Estate

Icaral

The

it

would have had,

is

same

the

regard to an equitable Interest,

if

Common

Law

as at

with

of such a nature,

that, turned into a legal Interest,

.

upon

effect of a Fine

been barred

at law,

it

would have

Recovery suffered by

a Cestui que Trust in Tail, in possession, bars

equitable remainders depending
Tail,

upon such Estate

although there was no legal tenant to the

Praecipe

To

all

p
,

but

it

does not bar a legal remainder.

bar legal remainders by

must be

there

a legal

Common

Tenant

nor will such a Recovery be

to the

Recovery,
Prsecipe

efficient, if there

q
;

be

an Estate for Life in another, prior to such Estate

Tail 1

or

if

the Estate for Life be equitable with a

legal remainder in

Recovery

table

Tenant
It

6
;

seems, an Equi-

good, although the Equitable

as to this post.

Champernon,

v.

2Ch. Cas. 03. 78. Bottelerv.

AUingham, 1 Bio. C. C. 72.
* Willis v.

ShorraU, 1 Atk.
476. and see 1 Vera. 440.
p North v. Way, 1 Win.
13.

and steBurnaby

y. Griffith,

76,7.
q

it

to the Praecipe has the legal Estate'.

North

but,

doubtful, whether there can be an equitable

is

m See

is

tail

Robinson

v.

dimming,

For. 104.$. C. 3IS.1 Atk. 473.

v. Thornton, Ambl.
Selwin
545, 099. and 1 Bro. C. C. 73.

in note. Boteler'v.
1 Bro.

AUingham,

C. C. 72.

North v. Champernon, 2
Ch. Ca. 03.78.
* Shapland v. Smith,
1 Bro.
C. C. 71. Robinson v. Cumuaing, 1 Atk. 473.
l
See this point discussed.
SugdenVcnd. and Parch. 287.
r

EQUITY JURISDICTION.

36%
disseisin, so as

to prevent an equitable

Tenant

in

Tail, suffering an equitable recovery".

It

was holden

in several cases,

IB Tail of an Equitable Estate,

cles

1
,

that the

Tenant

might by bare

arti-

or by a Devise, or a Feoffment, bar the entail"

but Lord Hardwicke decided expressly to the

contrary, and held that a Tenant in Tail of a Trust

Estate with Remainders over,

Settlement, bar the

cannot by Will or

Remainders, without a Re-

covery, any more than Tenant in Tail of a legal

Estate

x
.

Upon

its

being urged that a Lease and Release

would bar an equitable

Lord Hardwicke

Entail,

said, " It was never so determined., and

never will

The Cestui que Trust may

Estate

z
:

By

his Treason

It is subject to

a
,

it

same time the legal

or Felony

is

Title should,

a
lord Granville v, Blyth,
16 Ves.224.
T
Bates v. Bayley, 2 Vern.
226.
w Otway
v. Hudspn, 2 Vern.

Woolnough

nough, Pre.Ch. 228.

v.

Wool-

1 Vern. 14.

Kirkham against Smith,

Ambl. 518. S.C. iVes. 260. and
aee 2 Vern. 552. Legate v.
;

Sewell, IP. Wins. 91. BurnaTollett

v. Fletcher, 5 Ves. 13.

by v. Griffin, 3 Ves. 277.

Kirkham v. Smith,
Ambl. 518.

Ve.

Trust

be a Trust of

upon

it is

barred*.

same manner

Greenhill

d
e

in the

v.

Greenhill,

2 Vern. 680.
a
See 33 Hen. 8. c. 20.
b
Hob. 214. Hard. 490.
c

it.

in execution

not acted

So, Trust Estates, descend in the

260. S. C.

hope

he forfeits

it

may be taken

If the Equitable Title

the

devise

an Extent", (unless

a term of years,) and

583.

y ."

s.

2.

Hard. 405.
See29 Ch. 2. c. 3. s. 10.
Medlicot v. O'Donel, 1 Ball

and Beatty, 167. Hovendon v.

Lord Annesley, 2 Sch. and
Lefr. 630. Bonny v. Ridgard,
4 Bro. C. C. 138. Andrew v.
Wrigley, 4 Bro. C. C. 125.
Townshend v. Townsend, 4
Bro. C. C. 138.

TRUSTS.

3G3

whether Customary, (as Borough English, or Gavelkind) or otherwise': and

as legal Estates do,

there

may

by the

as

also be a posscssio fratris of

Common Law,

The Power of

there

Trust

was of an Usc

g
,

h
.

the Trustee over the legal Estate,

vested in him, exists only for the

Cestui que Trust.

He

benefit

of the

may, indeed, by means of

that power, prejudice the Cestui que Trust, by ati-

enating the Estate, either wholly, or partially, (as

in the case

of a Mortgage)

to

a purchaser, for a

valuable consideration, (a voluntary conveyance

would have

a different effect

;)

but such an abuse'

of Trust can hardly occur, unless where a Trustee

is in

possession of the Trust Estate, and even

But a Judgment against the

Commission of Bankruptcy against

then very rarely.

Trustee, or a

hinrk , will not, in Equity, affect the Estate, nor

can his Wife claim Dower, or Free bench out of it

',

nor can the Husband of a Female Trustee be entitled as

It has

Tenant by the Curtesy"

been doubted whether a Trustee will by

Treason or Felony forfeit the Trust Estate

and

it

has been questioned whether, supposing a Forfeithe Lord who

Crown claiming by

ture,

'

claims by Escheat, or the

that Title,

Banks v. Sutton, 2 P.Wms.

713. Fawcet v. Lowther,2Ve8.

304. and see 2 P. Wins. 73(5.
2 P. Wins. 713, 730.
h

Corbet's Case,

Pye v. George,
128. Saunders v.
Vein. 271. Daniels

SS\

Re|>.

P. Wins.

Dehew, 2
v.

Davison,

16 Ves. 249.
k
Finch v. Earl of Winchelsea, 1
Wins. 278. Bennett

is

bound by

the

Davis, 2 P. Wras. 318. 3 P.

Wins. 187.
note A. quot.
1 Sand, on Uses, 279. and sec
Medley y. Martin, Finch 03.
Hinton v. Hinton, 2 Ves.
Noel v. Jevon,
034, 038.
2 I'reetu. 43. Bevant v. Pope,
2 Freem.71. quot. 1 Sand, ou
v.

'

Uses. 279.
"'

157.

dishorn

v.

luglia.

7 Yin.

EQUITY JURISDICTION

3(34

Trust

n
;

but by a very recent Statute

video* that,

, it is

where Trust Property escheats

Crown, His Majesty may

pro-

to the

direct the execution of

may make grants to Trustees

or may make Grants to any per-

the Trusts, and

for that purpose,

sons for the purpose of restoring the same to any of

the family of the Persons whose Estates the same

had been,

or of rewarding any persons making

discovery of the Escheat:

but

it

does not deter-

what cases, Lands escheat for escheat,

must be remembered, may be ob defectum

mine,
it

in

ten ends ^ as well as,

Trustee

pro delicto tcnenhs.

may devise

the Trust Estate, but the

devisee takes the Estate subject to the original

Trust

But though, even under general words %

may

the Trust Estate

the Trusts under

so be devised, yet wherever

which the Trustee's Property

is

devised, are inconsistent with the supposition that

the Trust Estate was meant to be included in the

devise,

it

will be

presumed they were not intend^

ed to pass, and will not pass 1

It is
n

In

observable that by whatever means, whe-

Comyn's Digest,

Forfeiture, B.

1.

it is

Tit:

said the

Lands are not forfeited but in

Wike'a Case, Lane,54. Jenkins,
190. Cas. 92.
Hard. 40(5.
;

Brooke, Feoffment al. Uses, pi.

31. Vin. Abr. Uses, pi. 4. in
note quoted, 2 Foubl. Treat.
Fq. 108, in notes, it seems to

8 Ves. 417, Mm low and Smith,

2 F. Wins. 200.
Marlow v. Smith, IP. Wms.
97. 1 Atk. 005. in note,

v.

Bearcroft,

r
See Lord Bray broke v
lnskipp, 8 Ves. 4:J5. Reade
v. Reade, 118. 8 T. R. winch
Attorney
cases
overrule
General v.
Buller, 5 Ves.
339. and what is said 1 Bro

v.

England,

C. C. 198.

have been taken for granted;

and the only question was,
whether the Crown was bound
l>y the Trust,
which they decided in the Negative; but as
to that sue Geary
Carter 07. Eales

Prec. Chan. 200. 1 Eq. Abr.

384. in note. Burgess and
Wheate, 1 Bl. Rep. 123.
39, 40 Geo. 3. c. 88. s. 42,
*
Braybrooke v. lnskipp,

TRUSTS.
tlier

by Conveyance

tains

the absolute

Estate, though he

or otherwise,

Ownership
acquired

Law

at

of the

by an equitable

that

and both either come

Title,

Person oh.

or are after-

to. ether

wards united in hiin, the legal Instate will prevail,

and the equitable Estate

purpose of being acted upon

It
is

may

also

bequeathed

pointed, the
considers

the

totally ^r one for the

is

Court of Equity9 .
be remarked, that where Property
in

but no Trustee

Trust,

Court

ap-

is

the case of real Estate*

in

Heir at

in a

Law

Trustee

as a

and

in regard to personal Estate^ considers the per-

sonal representative as a Trustee, and will,

see to the execution of the Trust

Where

an Estate,

for

itself,

a
.

instance,

is

devised in

Trust, to a liody Corporate, which by the Statute

of Mortmain, cannot take, the Uses are not defeated

by

this deficiency of the Trustee,

tach

upon the Estate the Law

Heir

at

Law becomes

Will\
Having made

a Trustee

but

at-

and the

raises,

to the

Uses of

the

these few brief observations,

the general nature of Trusts,

upon

and limited the

bounds of our Enquiry, we may proceed

to con-

sider,
1.

Express Trusts created by Deed.

The conveniencies and

necessities of

Mankind

daily give rise to a vast variety of express Trusts,

created by

Deed

nor

is it

Selby v. Alston, 3 Ves.

342.
Vid.
White v. White, 1
Bro. C. C. 12,

here pretended to enub

Souley

c.C. 81,

v.

Master.

Bro,

EQUITY JURISDICTION

3(5(5

merate

all

of them, but only such as

are of th

most importance, and in common use such as

I. Trusts created in Marriage Settlements of real
:

or personal Property
chasers

3. In

2.

In Conveyances to Pur-

Conveyances by way of Mortgage,

or otherwise, for the

payment of Debts ; and

4.

In

real

or

Assignments of C hoses en Action.

I.

Settlements

may

personal Property,
rules

be made either of

or both

and subject

to the

by which the boundaries of Limitations and

Accumulations of personal Property are fixed

a Settlement
pleasure of the

by

may be made

according to

Personal

Settlers.

Estate may,

be rendered

a careful Settlement,

the

unalien-

able as long as real Estate.

Terms for Years, or personal

limited
Life,

Chattels,

may be

or devised in Strict Settlement to one for

and afterwards to Sons and Daughters

See 39 and 40 Geo. 3. c.

98. an Act wrongly attributed

to Lord Eldon, see 11 Yes.

148. Previous to the Act of Parliament a person might by
executory Devise, dispose of
his Property, and the accumulation of Rents and Profits for a Life or Lives in being, and 21 years, and a small
portion of time, the period of
gestation. This was one of the
points determined in the great
Case of Thelluson v. Woodford, 4 Ves. 227. or, in other
words, he might order an ac-

cumulation to go on during
that period of time-, during
^hich the Law permits the

in

Estate to lay unalienable; but

that Act, the accumulation
is limited.
A Trust by Will, for accumulation beyond the time ahlowed by the Statute, is void
Where,
only for the excess.
accumulation
therefore, the
was directed to be during a
Life, it was held not to be void

by

under that Statute, but to be

good for twenty-one years, if
the Life so long continued,
and only void for the excess,
that is to say, for so long as
the Life continued after that
Griffiths v. Vere, 9
period.
Ves. 131

and

tee

Lengdon

Simpson, 12 Yes. 295.

v,

TRL^TS.

Tail

307

and may be rendered

d
,

Heir Looms are

transmissible

but such Property cannot be

made unalienable longer than Lives

and twenty-one years

after, or

case of a

in the

If the

of Personalty

Limitations

being ,

in

posthumous Child, a few months more

executory

as

on

are

Contingencies too remote, the whole property

the

in

first

taker

and whatever
(

give a clear Estate Tail

Land,

in

words would
will give the

absolute Property in personal Estate

K
,

because no

Recovery could be suffered of such an Entail

but

this

cases,

doctrine,

common

where, against the

words, an Estate Tail

is

1
'

does not hold, in

seems,

it

is

raised,

import of the

by an ingenious

to effectuate the general

construction of a Will,
intention \

may

Estates pur autre vie

in strict Settlement

of Inheritance

byway of Remainder, like Estates

and such

nature of Estates Tail,

Remainders
d

over,

Vid. Har.. Co.

n. 7.

20\

Lit.

as

may

by
IS 6 .

n. 5.

Sheffield v. Orrery, 3 Atk.

267. Hiygins v. Dowler, 2
Vein. 660.
But that case is
incorrectly reported ae noticed
in Clare v Clare, MS. Stanley
v. Lee, 2 P. Wms. 018. Sabberton v. Sabberton, For. 55.

S.C.MS.Doileyv.Sparrat,MS.
and see Cambridge v. Rous,
8 V.s. '24. and 12 Ves. 218.
f
Jacobs v. Amyatt, 4 Bro.
C. C. 5 13.
s

be devised or limited

Tatton v.Molineux, Polex.

have Interests

in the

bar their Issue, and

alienation of

Moore 809. hie

2J.

430. Daw
Chatham, 7 Bro. P.

Atk.

Toml.

Edit.

all

the Estate

v.
v.

Ivie,

Lord

C. 453.
Butterfield
v.

Butterfield, 1 Ves. 188. Fearne

on Executory Devises 404,5.
Cth Edit. Glover against Strothoff, 2 Bro. C. C. 33. Chaiidless v. Price, 3 Ves. 90. more.
fully stated 13 Ves. 479. in
note.
h

Fordyce

539.
Chandless
480. in note.

v.

Ford, 2 Ves.

v.

Price, 13 Ves.

EQUITY JURISDICTION.

36S

pur autre

vie

nor

is

the having of Issue neceS*

k

sary to the giving effect to such alienation

An

with words of Inheritance,

as

When

Annuity cannot be entailed.

t<

security,

it;

granted in fee

of course

life

may

it

but

may be

as a qualified or

which must end

conditional fee,
solute in the

it

granted

descendible

it is

personal only

is

or

become ab-

of a particular person; but

it

can-

not be entailed, and consequently there can be no

Pemainder of
of Property

there can be no

for

it,

which

Remainder

not within the Statute dc

is

DonisK

Where

Leasehold Estate

tled with real Estate, the

by

either

words

Deed

real

Estate

one of the Tenant

will not allow

The

till

it

that

viz.

in Tail;

to

or

if

is,

till

it

it

to

until a

JJro

Reco-

the age of twenty-

Law

whereas the other

n
.

exigencies of Families give rise to various

;

nor

is it

here intended to no-

found

Settlements, but only the most important of

those that are usually resorted

shall

be enjoyed

tice all the variety of Trusts that are to be

is,

general

but the rule of

go farther

a Recovery

forms of Settlement

in

it,

Estate as long as the rules

real

very can be suffered

go

of doing

directs that

and Equity will permit

with the

will

mode

special Limitations'

are preferred, the

Law

intended to be set-

11

go along with the

of

is

Harg. Co.

Litt. 20.

n. 5.

Turner against Turner,

C C

324,5.

to.

As

in

Felhamv. Gregory,

5 Bro. C. U. 435.
n
Watkins v. Lea, 6 Yes.
041.

TRUST8.

209

In the ordinary Settlements of

Settlement by

strict

Trust
to

real

Estate

in

intended Husband, a

the

usually created, to secure a Rent-charge

is

the intended Wife, for her Lite,

case she

in

survives her Husband, in bar of Dower.

If the intended

which

Husband

has no real Estate, on

to charge a Jointure, a

in general, invested in the

sum

Funds

of

Money

name of

the

in

is,

Trustees, in Trust, upon the Husband's death, to

pay the Wife the Dividends.

Any

provision,

or precarious

it

seems, however inadequate

it

may

which an adult before

be,

Marriage agrees to accept,

will

amount

to a

of Dower,

lieu

in

good equitable Jointure.

female Infant (as hath been before observed)

may by Agreement before Marriage bar herself of

Dower Freebench p or her thirds provided the
,

provision be as certain as her thirds

q
;

but

it

has

been held, that she may, on her Husband's death,

elect to

take under the Settlement, or, to take her

Dower

or her

ment

but

r
;

if

thirds,

as if there

As

bar

herself of her

4v.>.

54.

5-2-3.

Carruthevs

v.

will

Bro.

C.

customary

C. 500.

Smith

Smith, 4 Yes, lfiO.

Glover v. B..ies,
r

Canuthcrs,

KB

Arclicr v. IV

Archer

527.
I.

it

by ngreement or composition

Earl of Buckinghamshire
and Ihurv, 5 Bro. l\ C. 570.
Chitty v Chttty, a Ves. 540.
p Walker v. Walker,
1 Ves.

VOL.

Settlement,

".

Woman may

before Marriage,

Setiic-

she does Acts after his death, shew-

ing acquiescence under the

be binding

were no

v.

p.j,

Pope,

v.

Atk.

2 Ves.
2 Ves.

EQUITY J *TIBlCX10jr<

^70

Share

where
he

thirds":

or her

considered,

leaving no Wife

regard to the
is

phanage Share of

custom, as

not considered as a pur-

w
.

Husband covenant

the

if

in

and

chaser of her third

So,

ruie, that

is

it

Wife has compounded with her Husband,

is

so

his

to release the or-

intended Wife,

ope-

this

extinguishment of the Wife's right to

rates as an

the orphanage part*.

And

Freeman of London, before Marriage,

if a

upon

settles part of his personal Estate

his intend-

ed Wife, to take effect after his death, without

mentioning

to be in bar of her

it

customary

will bar her of such customary part

this

made by a Freeman on

Jointure

his Wife,

y
;

part];

but a

and ex-

pressed to be, in bar of Dower, will not bar the

Wife's claim to a customary Share

Where
fore

tion

a Provision

Wife, in articles be-

for a

Marriage, was declared to be

of Dower, or any claim or

mon Law, Custom

*.

in full satisfac-

right

by com-

of the City, or any other

Law

Usage notwithstanding, this was held to bar the

Wife from claiming under the Statute of Distri-

or

and,

butions**;

it

seems,

1 P.
10 Mod. 451.
Readv. Shelf, 2 Atk. 644.
u
Glover v. Bates, I Atk.
1

Bliinden

Wins. 633.

v.

it

Barker,

S. C.

2 Atk. 644

and

see Love

Drnce

v.

Atk.

Lewiu

'

v.

Lewin, 3 P.

Wms.

15.
2

Vein. 6.
Dennison, 6 Ves.
393. Morris v. Burroughs, 1
Atk. 403.
v.

Ives v. Medcalfe, 1

64.

439.
v

would preclude her

Babbington

v.

Greenwood,

P. Wins. 530, S. C. Pre. Ch.

505.

"Glover v. Bates, 1 Atk,

439 see Benson v. Bellabis, 1
;

Vein. 15.

stj,

371

fium claiming her Paraphernalia under the Custom

h

of London

Provisions

expressed to

made by Settlements, though not

be in bar of Dower, amount fre-

quently to an implied

Covenant

stance, by

in

J
l

Marriage

in-

lor

;ent,

amount to an implied bar of

And where a Husband covenanted to

has been Holden

Dower

bar.

leave, or to

pay

to

Sum

death a

at his

Money

of

who, indeperidant of that En<

a Person,

to

meht,

by the relation between them, and the Provision

oftlie Law, attaching upon it, woulu take a Provision, the Covenant is to be construed with reference to that and the Court will not look upon
;

the slight difference between leaving

whether Payment

ing, or

or six

Months d

It has

where

own

is

to_be within three,

been generally

laid

Husband makes

and pay-

down

that in

all

a Settlement

cases

of

his

Estate on his Wife, in consideration of her

Fortune, the Wife's Portion, though consisting

of choses in action, and though there be no
ticular

Agreement

purpose,

for that

purchased by him, and

as

tors';

but

later cases

Husband does

Read
v.

v,

Snell,

to

go

to

considered
his

Execu-

establish that, the

not by a Settlement become a Pur-

chaser of the Fortune

Benson

seem

will

is

par-

that

2 Atk. C42.

Bellasis, 1

Vein. 15.

c
Vid. Garthshore t. Chalie,
10 Ves. 20.
Mb. 10 Ves. 13. but see
Kirk man v. Kirkinan, 2 Bro.

may

afterwards

come

e
Cleland v Clehmd, Pre.
Ch. 60. Blois v. Martin, 2 Vern.
Wvndham,
501. Packer v.
Pre. Ch. 412. a:jd see no;e
D. to a P. Wins. 199.

C. C. 95.

KB

EQUITY

372
to his

Wife,
to be

ports

if

J.C11JSDICTX0N.

the Settlement be expressed, or imin consideration of her Fortune, as

f
,

and described in the Deed itself; and

Property afterwards coming to her, and not reduced into Possession by the Husband, would

specified

but

survive to her 5 ;

if

the Settlement

sideration of the Fortune, she

h

to

titled

the contents of

or

is,

much

or

con-

in

is

may

en-

he

Settlement

the

was expressany thing comes afterwards,

plainly import that, as

ed, in such Case, if

as

if it

during the Coverture, to the Wife, the Husband

is

considered as a Purchaser, and takes

Where

there

it.

an Agreement between Hus-

is

band and Wife before Marriage, that the wife

shall have to her separate Use either the whole
parts of her

or particular

may

of

dispose

Will, and she

by

may do

it

by

either,

she

Estate,

or

by

though nothing

manner of disposing of

said of the

is

it

personal

an act in her Life,

It is dif-

it.

ferent as to her real Estate, for that will descend

Law, and that more or less benethe Husband may be Tenant for

to her heir at
ficially

Life

for

if

they have Issue

otherwise not

but

however, on her Marriage may, without a

dispose of her
to

her Heir

real Fstate,

at

Law

and prevent

but that,

it

its

fine,

going

seems, can

only be done, either by

way

over an Use.

instance, suppose a

f
Carr
57.

v.

Salwiy

In the

Taylor,

first

10 Ves.

Salwey,

of Trust, or power

Wo-

Aml.l. 092. Garforth v. Brad2 Ves. 077.

" Mitibrdv. Mitford, 9 Ves.

ley,

against

still

A Woman,

descends to her Heir at Law.

it

95,0.

TRUSTS.

man having

378

Estate before Marriage, and

a real

cither before or after Marriage,

veyance,

Marriage,

(if after

conveys that

to

during her coverture,

afterwards that

fault of

for

proper Con-

must be by Fine)

in

trust

for

herself

and

her separate Use.

Trust

shall be in

for

such Person,

by any Writing under her hand and

as she shall
seal, or in

it

it

Trustees,

by

and

nature of a Will appoint,

appointment, to her

such an appointment, that

good declaration

Law would

of the Trust, and the Heir at

de-

and she makes

lieirs,

will be a

in

be reme-

diless'.

For though,

in the

cannot make a Will

k
,

notion of the

Law,

Wife

where she has a sepa-

yet,

power over her Estate, she may dispose of it

by Will, and it must be propounded as a Will in
and if the Wife has not apthe Spiritual Court
pointed an Executor, the Court will grant adrate

ministration

to the

Husband, with the Paper

Testamentary Schedule annexed"

Whoever

takes under such Will, takes by vir-

tue of the execution of the power, and by

power coupled with the Writing, and

limitation in

in

the

But notwithstanding
is

Deed

that,

not a proper Will,

Peucocke
Wright

Monk,' 2 Ves.
against Englefield, Ambl.
4ns. Wright v.
Cadogani 6 Iko. P. C. 150.
1

v.

100.

See George against

Ambl. 627,
*

the

as if the

that Writing of appointment had

been contained
ing

or

creating the power.

and though such Writit

has

the

effect

and

See Henley v. Phillips, 2

Atk. 48.
Ross v. Ewer, 3 Atk.
!

ICO.

EQUITY JURISDICTION.

374

consequence of a Will td three intents

The words

are to

First,

-.

have the like construction as

was a proper Will

if

Secondly, Such Will is

ambulatory until the death of the Testatrix, and

it

therefore though the party taking thereby, takes

by virtue

of,

and under the power, yet notwith-

standing that, such appointee must survive the

Testatrix, before he can take

Thirdly, If they

do survive the Testatrix, they

take

can

only

from the time of the death of the Testatrix, and

do not take

from the time of the power".

as

Wire may dispose of her Estate, by

So, the

way of power

over an

Use

as if she

Use of herself for

of such persons,
Use
mainder to the
any Writing, &c. should appoint, and
the

Estate

to

the

of appointment, to her

power reserved
the same

But, a

to

own

her,

conveyed
Life,

re-

as she

by

in

right Heirs, this

and

she

is

may execute

Feme

Covert, cannot,

Heir by a bare Agreement

it

seems, bar her

without doing any

thing to alter the nature of the Estate p

pose/'

default

says Lord Hardwicke^ " a

" Sup-

Woman

hav-

ing a real Estate before Marriage, in consideration of that Marriage, enters into an

Agreement

with her Husband, that she may by writing under her hand, executed in the presence of Witnesses, or

by

.will,

dispose of her real Estate, will

n
Southby v. Stonehouse,
2Ves.6lO.
See 2 Ves. 191. and see
Travel v. Travel, 3 Atk. 711.
Tomlinson v. Deighton, IP.

p See Hodson against Lloyd,

2Bro. C. C. 543,4. George v.
but see
Aiubl. 028.
Rippon v. Dawding, Ambl.
565. and Wright v. fcuglefield,

Wms.

Ambl. 468.

149.

TRUSTS.
this

bind the Heir

ment, and

it'

Law

at

she does

'Al'j

It rests in

though

it,

may

it

Utisband from being Tenant by

that arises from his

that to the Heir

under

tlie

at

own Agreement
Law- Still she

Coverture

disability of

the act done

ami

the Instrument

if

at

hind her
curte

but what
a

is

1-

cine,

the time of

she attempts to make a Will

The

invalid.

is

the

only question that

could arise would be, whether such an Agreement

between her and her Husband would not

a right to

come

into

Court of Equity

Husband

Marriage, to compel that

and to join

into Execution,

to settle the Estate, either

such and such Uses

Agreement

as the

-jive

after the

to carry this

her

v/ith

in a

and

is

to

is

such an

Court would decree

to be far-

ance, then the question

Law

Tine

on such Trusts, or
if it

ther carried into Execution by a proper

at

her

may

Convey-

be whether her Heir

not to be bound by the consequences of

Agreement? but that is the only way in

which it could be brought in. But if the Affreement cannot be carried into Execution, though
she might have power to bar her Husband, it bethat

ing

voluntary claim from her, and the

casting the descent on her Heir at

it

could not be done'

' ;

If a

Woman

Life, she

may

in

it

seems

.''

has a separate Estate in

Equity

Per Hardwicke in Ld. Pencock v. .Mo k,2Ves. 191. and

ettipluce v. Georges, 3JJro.

C. C. 10.

Law,

Law

seli that

Land

for

Interest*/'

P;wke?. and Whites, 11 tes

and see what i> said in

2;-2.

Bui don
GO:

v.

Dean, 2 Ves. jun,

EQUITY JURISDICTION'.

376

Having thus noticed Settlements

rate use of a

Feme

Covert,

it

may

to the sepa-

be an excu-

sable digression, to advert to the principles that

have been
Estate,

down

laid

the manner in which

otherwise

nion which the Wife

rate Property

separate

may be

it

created,

and the domi-

by Settlement,

than

such

respecting

possesses over her sepaas to notice those

as well

Settle-

ments, which Courts of Equity compel Persons

make, who apply

to

them

to

to obtain Property, in

for their assistance

right of a

Feme

Covert.

The Settlement which a Person clandestinely marrying an Infant Ward of Chancery, is compellable
make, has already been considered

to

By devise,

a married

woman may

z
.

acquire a sepa-

rate Interest without the intervention of Trustees

and the

he

legal Estate

be a Trustee

will be decreed to

though Lord Cowpcr,

ject, appears

Nor

in

the

first

a separate Trust, for

has been held to

Legacy

to

livelihood of the

make him

Husband

a Trustee

the

for

Wife"

a Trustee

feme Covert, "'her

sufficient discliarge to

make

receipt to

Ante, p. 280.
Bennett v.Davis, 2 P. Wms.
316.
Harvey v. Harvey, I P.
Wins. 124. S, C. % Vera. 059.
**

it

this

So, a
he

Executors" makes the

her d

and

present to

the Wife by the Husband's Father, or even

Estate be devised to the

if an

the

case on the sub-

are technical words necessary to

Husband, "for

Wife

for the

have expressed some doubts

to

devolving on the Husband,

by a

c
Davley v. Darley, 3 Atk.
390. but see the observations
on this ease, 3 Bro. C. C. 384.
d
Lee against Prieaux, 3 Bro.
C. C. 381.

TRUSTS.

377

Stranger, during the coverture, has been consul,

ed as a Gift to her separate use

ever,

it

r-

how-

In general,

prevent the operation of

seems, that to

the marital right over the property of a married

Woman,

clear intention that

must appear

separate use

pay

trust, to

saying

shall be to her

and therefore

the Interest to her for Life,

her separate use,

to

it

is

mere

without

not sufficient:

mere intervention of Trustees never having

the

had

effect of

the

Wife

Interest in the

Personal

vesting a sole and separate

Gift

f
.

may be

made

to

Feme

Covert without a power of disposition, or with a

limited power"; but personal Property, unless tied

up where
with

all

it

enjoyed

is

incidents'

its

Feme

It is a

Woman

that a married

separately, will

is

in

Graham
SAtk. 393.

Lamb

v.

v.

Londonderry,

Millies,

5 Ves.

517.

WngstafTandSmith.O Ves.
Hyde v. Price, 3 Ves.
437 and see More v. Huish,
5 Ves. 094.
5

524.

" Fettiplaee against Georges,

Bro. C. C. 10.
Hulme v. Tenant, 1 Bro.
C. C. 21. and the observations
on that case in Nantes v. Corrack, 9 Ves. 188. LUHav. Airey,
278. Pvbus v.
I Ves. Jun.
1

Rule, therefore,

to be considered

regard to

exclusively in favor of her

so,

as a

Sole, in respect of her separate Property*;

except, perhaps,

be

gifts or contracts,

Husband k and
;

as to

Smith, 4 Rio. C. C. 340. Peacoek v. Monk, 2 Ves. 190.

Socket and Wrav, 4 Hro. C.
C. lS(i. S. U. in note to 2 Aik.
50. Heatlev v. Thomas,
15
Ves. 596. Wau-stafr'and Smith,
Ves. 524. Wills and Daw12 Ves. 581.
* See P\ bus v. Smith, 1 Ves.
J on. 189.' S. C. 3 Bro. C. C.
347. Milnes v. Busk, 2 Ves.
Jim. 498. Dalbiuc v. Dalbiac,
123. Richards
\.
10 Ves.
Chambers, 10 Ves. 580. T.re v.
Muggeridge, 18 Ves. 108. Std

t)

kin:,,

EQUITY JURISDICTlOXo

3?S

contracts with the Trustee of her separate Estate

who

not allowed to deal with her

is

She may convey away her separate Estate, her

Life Interest in

Stock,

instance"

necessary the Trustee should join in

veyance

unless his assent

",

nor

tor

is

is it

the con-

expressly rendered

necessary by the Instrument giving her that pro-

The Court

perty".

never

will

encourage the

locking up of Property, which would be the case,

if

separate property could not

be disposed of

She may grant an Annuity out of her separate

property
tract

and

8
,

i,

or

or enter

Agreement,

Note, Bond

into a

as if she

Court of Equity

r
,

Con-

were a feme sole*;

will decree a satisfaction

by the Trustees, out of her Property v

She may make a Contract, of which her Hus.

band and herself enjoy the benefit

w
,

and may

dispose of her separate property by Will*.

If a

Feme Covert living from her Husband, and

having a separate maintenance, contracts debts,

Vid. Pawlet v. Delaval, 1 Ves.
518. 2 Ves. 670. Ellis v. Atkinson, 3 Bro.565.
Dalbiac v. Dalbiac, 10
Ves. 123.
m Chesslyn v. Smith, Ves.
8
183.
n
1 Ves. 518.
Pybus v. Smith, 1
Ves.
Jun. 193,4. Essex v. Atkins,
14 Ves. 5i7.
p
Stamford
v.
Marshall,
2 Atk. 69.
See Essex v. Atkins, 14
Ves. 542. overruling Mores v.
Huish, 5 Ves. 693.
1

2 Ves.

193.

Norton

v.

turville, 2 P. Wins. 144. approved in Socket!; and \Y ray,

2 Atk. 58,
2 P. Wins. 144.
l
Master v. Fuller, 1 Ves.
Jan. 513. S. C. 4 Bro. C. C.
in note to
s

19.
v

Bullpin

v.

Clarke, 17 Ves,

365.
w Masters v. Fuller, 4 Bro.
C. C. 19. S. C. I Ves. Jun.
513. 2 Atk. 380. Stamford v.
Marshall, 2 Atk. d9.
x
Fetti place against Georges,
3 Bro. C. C. 8. S. C. 1 Ves.

37

TRUSTS.

the Creditors, by a Bill in Equity,

separate maintenance, whilst

when

that

is

Bill,

Where Money was

continues

it

but

charge the Wife's Jointure y'.

vested in Trustees in Trust

Husband and Wife, successively

for

remainder to the Children, and

for

in default

Life,

thereof

such Person as the Wife should appoint, a

deed of the Wife conveying

terest,

was, upon a Bill

established,
in

follow the

determined, and the Husband dead,

they cannot, by

to

may

Court
It

is

this

contingent In-

for that

filed

purpose,

and the consent of the Wife taken

1
.

observable that, in

all

these cases, illus-

power of a Feme Covert

trative of the absolute

over her separate Property, no Examination in

Court

is

necessary

with an Equity \
nation in Court,

power over her

to her

as

settled Property

feme covert has a power of

appointment by will with witnesses, in order prove a due
execution of her power, there

judgment

of the

Ecclesiastical Court, that the

instrument

and proof in

is

testamentary

the Courtof Chan-

eery, by the Witnesses

parting

any greater or other

exercise

by the Settlement

the

is

The Wife cannot by exami-

Jun. 40. Wa^staflfand Smith,

Ves. 521 and see Rich and
Cocki 11, in I) Ves. 375. Heatley
If a
y. Thomas, 15 Ves. 590.

must be

where she

it is,

to the
instrument, Rich v. Cockell,
9 Ves. 376. or if in the execu-

than

The

is

reserved

contrary doc-

tion of the power, witnesses

were not required to the Will,
vet in addition to the ProceedEcclesiastical
the
in
Court, there must be proof of
her signing the Will.
J Kinge
r. Delaval, 1 Vera,
320.
2
Guise v. Small, 1 Anstr.

ings

277.
a
See Sturgis v. Corp, 13
Ves. 192; and see Eraser and
Baillie, 1 Bro. C. C. 518.
b

Richards
10 Ves. 585.

v.

Chamber*,

LQUITY JURISDICTION.

3S0
trine

ruled

M'Cormic and Buller, has been over-

in
1
.

In those cases where an Examination

of the Wife

in

Court

necessary, the Property does not

is

Examination, or the inter-

pass by force of the

Court; but the Equity, by the

ronsent of the Wife, being put out of the way,

vention of the

the Court

makes

its

It is observable,

rate Estate

is

to

Decree.

however, that where the sepa-

be disposed of by the

vert only in a particular

Feme Co-

manner prescribed by the

Instrument giving the Estate, a

Feme Covert

can-

not charge her separate Estate, not even by consent in Court

unless

it

be done, eo modo, as pre-

scribed by the Instrument,

Estate

So

far as

separate Estate

the

if

Proprietor,

so far

is

she has pledged her Estate

according to her power,

the

to the uses she appoints

it

the separate

Instrument creating her

makes her

shea/eme Sole; and

creating

Trustees must hold

If the Trust

is,

to

pay the Rents and Profits to her, upon an Instru-

ment signed by her

since the last

payment, an In-

strument signed before would not do d

If,

there-

Pybus and Smilh e and other cases, the

Wife has only a power of disposing of separate Pro-

fore, as in

Stated 8 Ves. 174. in Sterand Rochefort, and in

ling

Hidiards

Chambers, 10
and see what is
same effect in Wool-

Ves.

583.

said

to

lands
178.

v.

v.

Crowcher,

* lord
Strange
Small, Ambl. 204.

12 Ves.

b
Jones and Harris, 9 Yes.
497. see also Essex v. Atkins,
14 Ves. 540.
c
Pybus v. Smith, 1 Ves. jun,

194.
d
;

against

lb. 193.

lb. 180.

TRUST 3.
perty by an Instrument in

cutes an Instrument
her separate Property

pay

to

vert,

the

money

and take a

into

381

Writing, and

site

exe-

Writing, that will bind

in

but where the Trust was,

hands of the Feme Co-

the

Rcceijjt

from

her,

in Blich

case

was held, were not justified in

joining with the Wife and selling the Property.
In one case where a Legacy was given to the Wife
the Trustees,

it

for her separate use

her Life, with remain-

during

der to such person, and tor such uses as she should

appoint &y Will, and in default of appointment to

her Executors,

it

was ordered upon her consent

to be paid to her

Husband

f
;

but

case has

this

been subsequently overruled, and the power of

disposition

only

confined

by Will

a disposition

to

Where

Feme Covert

granted an Annuity

charged upon her separate Property, and the Annuity,

owing

was held

to the fault of the Grantee, failed,

that the separate

it

Estate was not liable

money, and that there was no

Equity specifically to affect the Fund L

for the Consideration

By

marriage, the

property in

pable

oi'

all

Husband

acquires an absolute

the personal Estate of his

immediate and tangible possession, and

he marries without a Settlement, there

Newman

tioned in

Wife ca-

v.

note

Cartony, menWillats v.
1.

Cuv, "2 Atk.08.

8 Socket
v.Wray, mentioned
in note 1. to Willats v. Cay,
2 Atk. 08. S.
4 Bro. C. C.
480.

is,

as to

if

such

h
Jones and Harris, 9
494. See also Williams
Duke of Bolton, 2 Ves.
Sterling and Rochford, 8
104. See also Suckett
Wrav, 4 Brc. 480.

Ves,

and
1:38.

Ves.

aod

EQU ITY JURISDICTION".

3S2

Property, no Equity to afford her relief'; but,

her Property

is

such as can only be reduced into

Law or

possession by Action at

he has only a qualified

him
it

make

to

it

if he

Interest,

Suit in Equity*

such as will enable

an absolute Interest by reducing

into possession

Action,

it*

and

with regard to choses in

does not reduce them into Possession,

they will survive to the wife.

What
is

Wife

Interests survive to the

Equity,

in

determined, in general, by Analogy to the Rules

of Law

As

at

Law

her Choses in Action, not re-

duced into Possession by the husband, survive to

do her equitable Interests

her, so

But

survive to her in Equity.

gal Interests

in the

need

Terms

as

and other Chattels Real, of which the

gal Title

is

in

done by him

is

They

the wife.

but

them and thereby pass the

will

legal

followed

in

Equity.

survive

may

he

Interest

ther with or without consideration.

is

in

le-

being in posses-

sion already and not lying in Action

no act

some

there are

which do not admit or stand

of being reduced into possession

for years

same case

leif

assign
1

whe-

The Analogy

Equitable

Interests of

the same description

may be

same manner.

respect to Choses in Action.,

With

they are not assignable

'

See Incledon

v.

Northcote,

3 Atk. 435:
k

Mitford

Law; consequently
may be taken

Execubut it does
riot survive. Wildrnan v. Wild*
man, 9 Ves. 177.

or

it

tiou for his debts,

v.

Mitford, 9Ves.

99. &c. &c.

?

at

transferred in the

So he may forfeit the Lease

in

TRUSTS.

383

the Husband's Assignment cannot prevent

their

In strict Analogy,

legally surviving to the Wife.

therefore, equitable Interests of the nature of Glioses in

But

signment.

Equity*

in

and an Assignment

ment,

for

voluntary Assignment"
an Assignment

Where

a voluntary Assign-

for valuable

the Wife surviving

1

for a

Wife's equitable

Stock in Trust,

is

not bound by hi*

though she

had

Interest,

Dividends of

viz.

the

Bill of a

Sure-

the Assignment extending

260* but, it seems,

Husband had charged the Fund to its whole

only to elOO a year out of

the

be indemnified against past

to

and future payments

if

bound by

valuable consideration,

for a

Husband

is

assigned part of his

Assignment was enforced, upon the

ty for the

Considera-

valuable consideration

Husband

seems

distinction

made between

to have been

tion

be affected by his As-

Action ought not to

amount, or
charge

The

it,

to

any greater extent than he did

the decision

would have been

different

general Assignment in Bankruptcy has not

the effect

oi*

reducing into

Possession

Legacy

of Stock, in Trust for the Bankrupt's Wife; and

she by surviving, becomes entitled

And

so,

married

Stick transferred into the name of a

Woman,

m Burnet

v.

as

next of Kin of an Intestate,

Kcnnaston,

2 Vein 401.

On this subject, 9ee

12.

to

v.

Bates v. DaaoV,2Atk.207.
Lcml Carteret v. Paschal, 3 P.

Wins.

1!)7.

Wright

87.
v.

Morley, 11 VesJ

Franco, 4 V.

.-.

Fran-*

*)15.

11 Ves. 22.

Mitford

v.

MitfowT, 9

EQUITY JURISDICTION.

3S1

upon the death of her Husband without having

done any Act with reference to
partial transfers

Possibility of the

the Property

asserted

is

legal right, he

with him
will

claim to his Wife's Pro-

by Suit in Equity,

cannot reach

make him,

for

vested in Trustees,

in the Suit

1'.

Wife may be assigned

Where the Husband's

must be

except signing

by her, survives to her

a valuable consideration

perty

it,

as

where

who have

the

without joining her

it

and in such case, the Court

thus seeking for Equity, do

Equity, and provide for her, unless she consents to

give the Property to

him '.

If, for

instance, a

Sole Mortgagee marries, and the

Feme

Husband

files

a Bill of Foreclosure, the Court will not compel

the Mortgagor to pay the

without

his

Money

to the

making some provision

Husband,
Wife;

for his

or at least the Wife by an Application to the Court

against the

Husband and

the

money to the Huswere made for her u

prevent the payment of the

band, unless some Provision

In

all

demand

cases, indeed,

her

in

applies to the

own

Court

Wildman

v.

where the Wife has a

Husband

and the

her right, and

no Agreement previous
an established

right,

in

Rule

the

to

Wildman,

s
Bates v. Dandy, 2 Atk.
207. Hawkins v. Obyn, 2 Atk.
549.
Nenny,
v.
[ See Langham

there

marriage

v
,

is

it is

doubtful policy per-

(of

9 Ves. 174.

may

Mortgagor,

3 Ves. 469. See Milner

mer, 2 P. Wms. 639.
u

Bosville v.

Wms.
*

49.

v.

Col-

Brander, 2 P.

459,

See Brett

v. Percer,

3 Atk.

TliUSTS.

haps

that the

Husband

will not

obtain his Wife's fortune

x

J? 100

he allowed to

(unless

be

it

under

or unless, perhaps, where the Property

small, and the

Husband

without making

Freeman of London

is

is

a Provision for her;

nor does an

inadequate Provision for her by voluntary Settle-

ment
is

vary the Rule*. If the Wife

after marriage

dead, and a Legacy

is

claimed by her Husband in

her right, an inquiry will be directed whether the

Issue are provided for 1 ; and this Equity

not modern

is

early case,

to

adverted to

is

it

by the Lord Keeper Coventry

The Rule
but

consi-

The doc-

dered as founded on natural Justice.

trine

is

in a

b
.

Husband,

applies not merely to the

Persons claiming through him, whether by

operation of

Law,

or otherwise; on the

ruptcy, for instance, of the Husband,

it

Bank-

applies to

The Assignees of a Bankrupt take,

Husband would have done, subject to the

his Assignees.
as the

Equitable Interest of the Wife, and are bound to

make

a proper Settlement

property was given to

w

Brown

Wms.

3 Bro. C. C. 237.
Adams and Pierce,
3 P. Wms. 13. Sed quo. as to
this, swee the stat. 11 Geo. 1.
c. 18. which gives Freemen a
Power of bequeathing their
See

Personal Estates.
2
2 Atk. 448.
* 1 Dick.
391.
u
Tanfield
v.
Tothiir, p. 114.

VOL.

I.

In one case, half

the.

Settlement

c
Jaeobson v. Williams, 2 P.
Wins. 382. Exparte Colvgame, 1 Atk. 192. Grey v.
kentish, 1 Atk. 2S0. V
v. Marr, 2 Dick. 847. Mitford
v. Mitford, 9 Ves. 87. Wright

039.

the Wife'.

and Elton, 3 P.

Wins. 205. 2 P.

Morley, 11 Ves. 101. Lamb

Milnes, 5 Ves. 517. Fr<
v. Parsley, 3 Ves. 124. Osmell v.
Probert, 2 Ves. 680; Pringle
and Hodgson, 3 Ves. 017.
d
Browne v. Clarke, 1 Yet,
108.
v.
v.

Davenport,

EQUITY JURISDICTION,

380

before marriage,

of part of her

Property to her

separate use, does not bar her of this Equity

Rule,

So, too, the

it

e
.

seems, applies against 3

Husband

voluntary Assignee of the

and even

against a Purchaser for a valuable consideration

of the Wife's interest from the

perhaps, in the case of a Trust

Husband 5 except,
of a Term for years,

of Land, as to which Lord

Nottinghat)i

ex-

pressed great surprize, and others have entertained

doubts \

The

point,

whether the Equity of the Wife can

be barred or affected by the Husband's Assign-

ment for

a valuable consideration, was once,

much

Lord Alvanley admitted,

that

Lord

intimated

diffi-

questioned.

Hardwicke and Lord

culties

Thurlow

whether an Assignment

consideration

for a

valuable

might not support the right of the

Assignee, or at least evade this Equity

but he

observed, " J have looked into ahnost every case;

and have never

Equity does

seen

it

determined, that any such

exist in favor

of the Assignee "

1

Sir William Grant seems to have thought there

were some cases very

'

Burdon

v.

difficult

Dean, 2 Ves

jun. 607.
1

Jewson

v.

Moulson, 2Atk.

reconcile with

Turner's Case, 1 Vern. 7. Tudor and Samyne, 2 Vern. 270.

and see Jewson

v.

Moulson,

2 Atk. 420.

420.
v.
Phillips,
Macauley
4 Ves. 19. and see Wright and
R utter, 2 Ves. 711.
b
See Pitt v. Hunt, ] Vern.
*

18.

'4 Ves.

to

Sir

Edward

what Lord Thurlow

Like v. Beresford, 3 Ves,

511, 512. and see Pope v. Cra<
shaw,4Bro, C. C. 326.

19;

See

said in Worrel v. Marlar, and

Eushan v. Pell, mentioned,
1 P. Wms. 459. in note.

trusts.

387

Lord Alvanleys proposition;

for that

there

was

hardly any other ground upon which Lord Hard*

wieke" proceeded, in some of the cases before him".

But, whatever doctrine formerly existed,

clear, that

perty,

it is

now

an Assignment of all the Wife's Pro-

though

for a valuable consideration,

not avail", even

in favor of

Creditors

would

so as to

deprive the Wife of her Equity.

the Wife

If the Father of

sumofalOOO

covenants to pay a

Husband,

to the

the Wife's Estate, and

maybe

this

no part of

is

obtained without a

Settlements

Whenever

Husband

the

come

can

at

the

Estate of the Wife without the aid of a Court of

Equity, the Court cannot interfere".

pose of the Trust of a

Term which

He may dis-

he has in right

of his wife, as well as of the legal Estate of a

which he has
Settlement

s
.

in

So

her right, without

also,

if

her debt to the Husband

is filed,

a Trustee

real or personal,

who

Estate

to the

Husband,

See G rev and Kentish,

1 Atk. 280. but said to be
"arrant nonsense" as reported,
1 Dick. 494. Bates v. Dandy,
2 Atk. 203. and see Lord CarPaschall, 3 P. Wins.
199. before Lord Kin^.

teret v.

Like
606.

v.

Morley^ 11 Ves.

MS.
v.

Beresford,

or

before

if,

or hand over

real,

Wright

the Wife's Debtor pay

a Bill

chuses to pay the Rents

of the

17. S.C.

making a

has the Wife's Property,

Profits

Term

See

v. Hill,

v.

Act on

4 Bro. C. C.

Forcer, 3

Attorney

Atk.

General v.

Whorewood, 1 Ves. 539.

s
Tudor v. Samyne, 2 Vern.
270.
Mitford v. Mitford, 9Ve*.
100, 101. Jewson v. Moulson,
3 Atk. 419.
'

3 Ves.

the personal

(an improper
p Prior
139.
q Brett
405.

and

c c 2

EQUITY JURISDICTION.

388
.

the Wife has no remedy; but, after

his part*,)

discretion

the

for

Trustee, and takes

the Property,

Husband,

it

Trustee

such

a Bill Jiled,

as

makes the Court

Bill

away

his right of dealing

he had

may

seems,

cannot exercise a

previously

it

transfer

with

The

Bank Stock,

be-

Bank cannot prevent

longing to his Wife, and the

nor can a Court of Equity, in such case, in-

it,

procure a provision for her*.

terfere to

The

equitable Right which a married

has, in a

her

own

Court of Equity,

Fortune, before her

into Possession, stands

of such Courts.

The

Woman
out of

to a provision

Husband reduces

it

upon the peculiar doctrine

habit of the Court has

al-

ways been of itself, and without any application

previously made by the married Woman, to direct
an Inquiry, where Money has been carried over
her Account,

to

whether any

been made, adequate to

possessed

41

ject to that Inquiry

the Fortune she

Money

for the
;

Settlement has

is

then

carried over, sub-

and the constant course has

been to direct a Settlement, not upon the Wife

only, but upon

the Children also.

She

is

not

permitted to say she claims a Settlement for herself

and not

for her

tion not to have

Settlement
a

is

Children \

any Settlement made, but

to be

made,

See Lord Elibank v. Mon5 Ves. 743.

Murray v. Lord Elibank,

tolieu,
b

10 Ves. 90. and see Glaister

v. Hewer, 8 Ves. 206. Macauy v. Philips, 4 Ves. p. 18.
c

Wildman

t.

She has the op-

Wildman, 9

it

is

if

always directed

Ves, 176. and see Pringle v.

Hodgson, 3 Ves. C20.
"

,l

Lady Elibank

5 Ves. 743,4.
Head, 3 Atk. 721.
lieu,
'

Murray

13 Ves.

6.

v.

Mont oMarch v.

v.

Lord Elibank,

TRUSTS.

Wife and (Children

for the benefit of the

She

'.

upon examination apart from her Husband, and

full knowledge, of hef right, the same being

with

ascertained

waive

a Settlement

even

in favo>

Husband who is Insolvent', and she can do

k
that way only
an Agr< oienl out ofCourt,

of a
it in

even

a\

band,

here the
is

Wife

insufficient

apart from her Hus-

lives

'.

seems doubtfuh whether Children have any

It

substantive and independent right to claim a Settlement, out of the property of their Mother,

Settlement was

not

a right";

but

in a

to

have thought they had

subsequent case beheld

Thomas Clarke consider-

a different doctrine

".

ed the Children

having aright

as

Sir

but his Decree

was afterwards reversed by Lord

and clearly,

if

directed during her Life".

Lord Hardwicke seems

such

if

ffiorthi?igtoii

'';

there has been a decree directing a

Settlement on the Wife and Children, and she does

nothing to waive the Equity,

may waive

'

Murray

v.

it

as to herself,

Lord Elibank,

Sterling v. Kochfort, 8 Ves.

164. Wooliands v. Cfoueher,
178.
Edmonds v.
12 Ves.
Townshend, 1 Anstr. 98.
h
See Wright v Rutter, 2
Ves. G77. Dimuiock against

Atkinson, 3 Bio. ('.

195.
Willats v. Cay,
2 Atk.
07. but see ex parte Higham,
2 Ves. 579.
1

Macau lay
18.

she

but not, perhaps, as to

'

Macauluy

v.

Phillips,

Ves. 15.

13 Ves. 0,7.

Ves,

(fur in this stage

v.

Phillips,

m Murray against Lord Eli-

7.
hank, 1'J
n
GroSVenor \. Lane, 2 Atk.
180, and see 2 \ ess. 072.

lleaile

v.

Greenback,

\i

.Atk. 717.
p Scriven
against Tapley,
Ainbl. 509. see also Cockel v.
These
Phips, 1 Dick. 891.
cases arc noticed by Sir Wilbam Grant, in Murray and
Lord Elibank, 13 Ves. 7.

EQUITY JURISDICTION.

590

her Children

and she dies before the Report,

,)

the Children are entitled*.

So,

Proposal

after a

it

of a Settlement by the Husband, he dies, the

Children would have a right to have
8

into execution

the Wife

may be

on a

reversionary contingent Interest in

Wife might,
In

esse,

all

Stock";

is c. ta...ed,

the

at a future day, set aside the Contract^

these cases

Husband

Income of

Bill

taken for th sale of the

seems, unless such Consent

for, it

an Equity

for that purpose,

the

to interpose

Consent by the Wife, de bene

Wife 's

carried

it

no instance ofaDeltor

is

upon the Court

calling
for

There

is

where a Settlement

is

made,

considered as entitled to

the

Wife's Equitable Interest, unless

his

he has received some Fortune with her, or has

misbehaved v as by running away with a Ward of
,

the Court

w
,

or

is

separated from his Wife*, or

leaves her unprovided for

rupt

z
,

makes

or

See 2 Ves. 672.

Murray

v.

Dick. 343.
604.

v.

Jackson,

2 Dick.
s

A non.

become

assignment

Bank-

for

the

in Saddington

Lord Elibank,

Rowe

or has

13 Ves. 1. S. C. 10 Ves. 84.

on demurrer; and see Macauley v. Phillips, 4 Ves. 19, 20.
and also Becket and Becket,
1

a general

benefit of his Creditors

2 Ves. 672.
Glaister v. Hewer, 8 Ves.

206.

Woollands v. Crowcher,
12 Ves. 174, overturning the
Argument of Mr. Madocks

and Kinsman,

Bro. C. C. 47.
v

Macaulay

v. Phillips, 4
See Bond T. Simmons, 3 Atk. 20.
w
See Like v. Beresford, 3
Ves. 506.

Ves.

15.

* Ball and Montgomery,

4
Bro. C. C. 339. S. C. 2 Ves.
jun. 191.
y Sleech v. Thorington,
2
Ves. 562.

'Wiseman

Wms.

v.

Mason, IP.

459. in note.

Prior

v. Hill,

4 Ves. 138.

TRUSTS.

Husband who

If a

391

has received the greatest

Part

of his Wife's Portion,

wise

it

Portion

seems,
b

the small

he had received no part of her

if

make

refuses to

would be other-

(it

a Settlement

out of

Remainder of her Portion, the Fund

will be ordered to be paid into Court, and he will

be prevented from receiving the Interest of such

residue, unless he

And

is

ing the interest of

money

Wife, upon the

of the

and

treatment;

Court

starving

Husband

the Court will prevent a

d
,

in

Court, the Property

Wife's

order

will

tak-

Affidavit of
to be

it

ill

paid into

and in case of Desertion will order her

a Provision

and

Husband goes

where the

Abroad, and has assigned part of the Dividends

of Stock belonging to his Wife, without making

any Provision

the remaining Dividends

for her,

will be ordered to be paid to her

or

proper to return and maintain her

But the Court

will

with

not interfere

her

Husband h

refuses to

live

there had

been a Divorce

for

adultery by the

Money

in

See 2 Ves. 5G2.

Oxenden

Bond

494.

Simmons, 3 Atk.

21.
d

Alexander v. M'Culloek,
cited in Ball and Montgomery,
2 Ves. jun. 191. and alluded
to in De Mannville and De
Mannville, 10 Ves. 56.
e
Allerton v. Knowel, mentioned 4 Ves. 7tt9. and see

set-

be paid either to the

to

Wife or the Husband'; and

v.

the Wife
and where

if
;

Wife, the Chancellor refused to order

tled to her separate use,

he thinks

till

g.

such case, Trus-

v.

Wright

Oxenden, 2 Vern.
v.

Morley, 11 Ves.

12.
s

Watkyns
'

Atk. 97.
h
Bullock
798.
Carr v.
'

Ves. 14^-

v.

v.

Watkyns, 2

Menzies, 4Ve*.

Eastabrooke,

EQUITY JURISDICTION.

302

tees will, if necessary, be

ceeding

nance

Law

at

separate Use

recovering

Money

Sum

for her

be secured

are not recoverable "'

such case she

ance,

Wife's

cohabit together, and the

the Arrears of Pin

Money

beyond the Year";

supposed to have been

is

for

in

satisfied

the Wife lives separate and has no allow-

an account of the Arrears of Pin

will be decreed

If a

for the

Apparel and Expences, and

the Husband and Wife

Husband maintains her,

if

Property settled to her

If an annual

but

pro-

recover her separate mainte-

So, if the wife dopes, the Court will not

assist her in

Pin

to

restrained from

Feme Covert

proceed

the Trustees

Term,

Money

has Pin

Term, and runs away and

it

Money

at

lives

Law,

secured by a

in adultery,
to

and

recover the

seems they may be restrained

but

if

Husband on account of ill usage, or

other reasonable grounds, or the Husband acshe

her

left

her departure, Equity will not in-

quiesced in
terpose

1*.

To resume
by

the consideration of Trusts raised

Settlements,

of Trustees

to

we may next

consider, the creation

support contingent Remainders.

These Trusts arose out of the doctrine in Childleigh's Case q , and in Archers Case
but they
r

Moore

v.

Moore,

Atk.

270.

Lee v. Lee, 1 Dick. 321.

and 2 Dick. 800. Mildraay v.
1

Mildtnay, 1 Vein. 53.

10
Thomas v. Bennet, 2 P.
Wins. 341. and see Fowler v.
Fowler, 3 P. Wras. 353.

"See 2 Ves. 190.

Aston

v.

Aston,

Ves.

2C7.
p Sir R. More and Earl
of
Scarborough, 2 Eq. Abr, 150,
"
r

Co. 120.
ICo. 00.

TRUSTS.

not put in

practice

the time

till

Usurpation % when Sir Francis Moore

pears to have been the

case,

first

a limitation to Trustees came

v

.Estate

remainder to
it

made

to

&e. Sons

his first,

tort in

will destroy those

A.

11

for life,

in tail,

him

ap-

which such

in

question

in

limited

is

be a plain wrong and

which

first

tin

Dimcombc and l)uncombc\

use of them.

Where an

of

to

though

do an\

contingent remainder*,

(" a most barbarous thing," Lord Talbot calls

it",)

the birth of a Son, notwithstanding

his

before
legal
is

power of doing

so,

yet as in this case there

no Trustee, there can be no

trust,

nor conse-

quently any breach of trust, and therefore a Court

of Equity

may have no

nor handle
to the

cognizance of such a case,

for relief, the

matter being

Common Law. Whether

left

purely

a Tenant for Liie,

of an Equitable Estate, can destroy Contingent

Remainders, has been doubted

To prevent

y
.

inconvenience, the appoint-

this

ment of Trustees was invented, on purpose

Tenant for*Life from doing such

disable the

to
in-

jury to his issue.

If,

therefore, before the birth of a Son, a

mere

Trustee to preserve contingent Remainders,

would be

different

well as Trustee
s

if

x
,)

he were Tenant for Life, as

whether appointed under a

Garth v. Cotton, 1 Yes.

555.
3 Lev. 437.
u
Garth v. Cotton, 1 Ves.
555.
v
Mansell and Mansell, *2 P.
Wms. 681. S.
Pye v.
George* Salk. 080. Garth and
Cotton, 3 Atk. 754. These case*
1

(it

overrule what is said in Duke

of Norfolk's case, Polexf. 250,
" For. 239.
"CNbreyv. Bury, 1 Ball and
15,

58.

Hopkins v. Hopkins, Mich.

892. 1733. M*. S. C. 1 Atk.
'

&8Q,

EQUITY JURISDICTION.

394

for a valuable considera-

voluntary Settlement, or

tion, or by Will*, joins in barring such Remainders,

a breach

it is

and he

trust,

is

answerable to a

Son afterward coming into existence and so is a

Purchaser with notice % or a Person taking by
voluntary Conveyance a but, 5t seems, that only
;

Son, and not second and other Sons, have

the
b
though a
this shield thrown over their Interest
first

difference has

been made, where the limitation

by Settlement, and whereby Will;

is

as in the latter

case, all Persons are Volunteers*.

Where Trustees

preserve Contingent Re-

to

mainders are called upon to join for the purpose

ofa

Settlement, upon the Marriage of the

new

making the Tenant

eldest Son,
Life,

said, the

in

such cases,

Court will compel them

and also in some cases, though not

pose,

but under some

special circumstances

cases, and
tion to a

Tenant

Mansel

6
;

but, generally, in

he shall so long

v.

078. S. C.

Mansel, 2 P.

MS. Symance

1 Atk. 014.
Mansell and Mansell, For.
253. S. C. MS. Moody v. Wal303,307. Pye
ters, 10 Ves.
v. Gorge, IP.Wms. 128. Biscoe
v. Perkins, 1 Ves. and Bea.
491.
lb. 129. Mansell and Mansell, 2 P. Wms. 080. and MS.
^Walter and Moody, 10 Ves.
v.

Tattam,

for that

for Life, it is to the

if

has

it

d
:

pur-

particular distress, or other

mainder to Trustees during his

'

for

to join

all

where instead of the ordinary

a term of years,

Wms.

Tenant

and continuing instead of destroying, the

object of the Settlement

been

in Tail

other

limita-

Husband

live,

life,

for

with re-

to preserve

but see ib. 305, and

Topping and Piggot, 1 Eq.

304.

Ca. Abr. 385.

c
See Barnard and Large,
1 Bro. C. C. 535.
d
As in Winnington v. Foley,
1 P.

Wms. 530; and

mance

v.

Tattam,

see SyAtk. 013.

Sed Vid. Biscoe v. Perkins,

L Ves. and Bea. 492.
See Barnard and Large,

Ambl.

77.

TRUSTS.

3<)5

Contingent Remainders, the Court will leave

to the discretion of the Trustees

If the

it

Trus-

tees improperly usr their discretion, or refuse to

exercise

it

upon

the Court,

a proper occasion,

it

has been said, will interfere*.

And where
eldest Son,

the Court has, at the instance of an

ordered Trustees to join in the de-

struction of Contingent Remainders,

times imposed conditions upon

he should make a Provision

Trustees

it

has some-

the Son, as that

for a Sister

b
.

Voluntary Settlement have, upon

in a

the Bill of Creditors, claiming under a subsequent

conveyance

payment of

in trust for the

been decreed to join

And

Remainders'.

in

debts,

destroying the contingent

such Trustees, (there being

no Issue) have been decreed to join in a Sale,

where the Settlement was only of an Equity of
Redemption,

and

the Wife consented

to

the

Sale".
It has

been

said,

that Trustees ought never to

join in the destruction of contingent Remainders

without the direction of the Court

that as the

do,

what they ought

for

Trustees, in clear

'

See Woodhouse

v.

to </o,

Hoskins,

3 Atk. 24. see Argo. Moody v.

Walters, 16 Ves. 291. Fearne
on Remainders, 331. fifth edit.

and the

';

but

it

seems,

Court only decrees the Trustees to

cases there cited.

Barnard and Large, 1 Bro.

Ch.Ca. 535. Moody v. Walters,
g

16 Ves. 307.
* Frewin and Charlton, 1
Eq.
Abr. 386. quot. 16 Ves. 304.

it

cases,

is

not necessary

to apply

to

the

Basset v. Claphara, 1 P.
358. quot. 10 Ves. 305.
" Piatt v.
Spring, 2 Vein,
303.
See Fearne on Contingent
Remainders, p. 336. and Mr.
Cox's note to Basset r. Clapham, 1 P. Wms. p. 358.
'

Wms.

'

EQUITY" JURISDICTION.

396

Court m ; and that the absence of that sanction,

The

doctrine

however, involved in

difficul-

not render the act, a breach of trust.

this subject

on
ties

so

much

is,

so, that as great a

existed, has said,

upon

Judge

of deducing from them what

greater than

ever

as

a review of the cases, as to

the duties and liabilities of Trustees, "

is

will

have

The

task

is

the true principle,

abilities

well to execute.

The

cases/' says he," are uniform to this extent

that

if

Trustees, before the

first

Tenant

Tail

in

is

of age, join in destroying the remainders, they are

liable for a

breach of Trust

and so

chaser under them with notice

come

to

who have

every Pur-

we

of Trustees to preserve

the situation

Remainders,

is

but when

joined in a Recovery after

Tenant of Tail is of age, it is difficult to

say more than that no Judge in Equity has gone
the length of holding that he would punish them
the

first

as for a breach of Trust, even in a case,

would not have been

sult is, that they seem
safest rule for

venient for
that

it is

where they

directed tc join.
to

The

have laid down,

re-

as the

Trustees, but certainly most inconthe general Interests

of Mankind,

better for Trustees never to destroy the

Remainders, even

if

the

Tenant

in Tail of age

concurs, without the direction of the Court/

Trustees created by express limitation,

."

for the

purpose of preserving contingent Estates, are guilty

of a neglect of their duty, if they permit the

Tenant for

Life, liable to

m See Moody and Walters,

16 Ves. 310. Woodhouse v.
Hopkins,'3 Atk. 24.

impeachment

for

Waste,

" Lord Eldon, in Biscoe v.

Perkins, 1 Ves. and Bea. 491.

TRUSTS.
or a

Tenant pur autre

his Estate

liable for

is

who by

vie,

the nature of

Waste, to destroy Timl

Trustees to preserve con tin.

Neither ought

Remainders

397

Tenant

to permit the

for Life or y<

by the destruction of his Estate to bring forward

a Remaiuder to himself or another, for the purpose of cutting Timber p
In the case of Copy.

holds, the Lord's Estate will preserve contingent

Remainders, without any express nomination of

Trustees

for that purpose"

but Lord Eld<> seems

to doubt,

whether

tively, to

prevent Waste

Trust Terms

it is

duty

his

to interpose ac-

r
.

for the raising of Portions, are also

usual in Settlements.

Where
is

also a

Portions are thus to be raised, and there

Covenant by the

real Estate

is

considered

Settler to pay them, the

as

the primary Fund,

and the personal Estate of the Covenantor

diary only

nant be to

settle absolutely

and

it is

still

Land, and only

the party

within six months,

damages might be reco-

must

first

resort to the

in case of a deficiency, call

personal Estate
tle

same, though the Cove-

It is the

broken, so that

vered, for

Lands, and to

as tiiix*

Covenant

If there be a
raise a

upon the
to set-

term of years out of them

Covenant

for the

payment of the Portion, and only a Bond

for per.

for securing a Portion,

but no

Stansfield and Habersham,

10 Ves. 288.
p Gaitli
and Cotton, 1 Di'k.

183. 3 Atk. 751. 1 Ves. 524,

540. Stansfield and Habergham, 10 Ves. 279.

q
r

See Garth and Cotton, ib.

10 Ves.992.
Ledum n- v. Charlton,

15 Yes.
b

J3.

Edwards

Wms. 438.

v.

Freeman,

"2

P.

EQUITY JURISDICTION.

398

formance of Covenants, the Portion is not

event payable out of the personal Estate c

any

in

may make

Parents

which

Provision for children,

depend upon the condition of their

them d but to do so, the intention must

shall

surviving*

be very strongly expressed

for contrary to the ob-

vious meaning of expression,

ed by

many

it is

a Rule, establish-

decisions, that if Portions are direct-

ed to be paid

at

the age of twenty-one, or on the

marriage of Daughters, with survivorship, follow-

ed by a Provision^ that

if

they attain

those pe-

riods in the

life

of the Father, the portions shall

not be paid

till

after his death,

ly framed to obviate

(a clause original-

the difficulty arising from

the determinations that charged the reversion

by

permitting Interest to be carried on from the age

of twenty-one,

though there was an Estate

for

Life %) yet that clause will not prevent the vesting

f
for in these cases, the
in the Life of the Father ;

Court looks upon

it

as a hard thing to

impute to a

Father that he should mean, a child having attained

twenty-one, or come to

marriageable years and

formed a family, and because that Child dies in

his Life, the descendants should have nothing and
;

feeling that not to

be a probable intention in a

Edwards v. Freeman, 2 P.
437. and see 1 P. Wms.

Wms.
293.
d

Woodcock

against the
Bro. C. C.
Burdett, 9 Ves.

Duke of Dorset, 3
570. Powis
435.

v.

e
Willis v. Willis, 3 Bro. C.
C. 54. and see Emperor V.
Rolfe, 1 Ves, 208.

f
Hope v. Clifden, 6 Ves.
499. Willis v. Willis, 3 Ves. 51.
Powis v. Burdett, 9 Ves. 428.
King v. Hake, 9 Ves. 438.
Schenck v. Legh, 9 Ves. 300.
v. Renons, quot. 9
Jefferies
Ves. 311. Emperor v. Rolf,

1 Ves. 209.

TRUSTS.

Parent, the

Court have thought themselves

manage the construction

liberty to

as they

399

would not

in

of*

the Words,

the case of a Stranger, or up-

mixture of

a matter of contract, without any

on

Out where,

parental feeling*.

at

in

before-mentioned Proviso, there

addition to the
is

a further pro-

viso for a limitation over in the event of no child

at the

living

death of the Survivor of the Parents,

or of the death of all, " before the fund

as aforesaid, be payable,
is

contingent

The

''.

Portion, depends

&c." the

should, so

gift,

seems,

it

raising or not raising of a

upon the

particular penning of

the Trust, and the intention of the Instrument

Lord

*.

Hardwicke expressed his unwillingness

upon them, out of

Reversionary Terms, and refused so to raise them
upon construction or implication only k He laid it
raise portions, or interests

to

down

also as a Rule, that if a term of years, or other

Estate be limited to Trustees, for raising Portions

for

Daughters, payable at a certain time, which

have become a vested Interest, they shall not stay

till

the death of the

some

Father and Mother, unless

intention appears to postpone

them

but

if

there does, the Court will always take notice of

such intention, and postpone

the latter cases, as

it

accordingly

Brome and Berkley

and

and others,

shew, the Court has laid hold of very small grounds.

Hope

v.

Clifden,

507.
"See Schenck
300.
i

Codrington

Ves. 379,

C Ves.

k
Lyon v. Chandos, 3 Atk.
and see Ravenhill v.
417
Dansey, 2 P. Wms. 179.
Wms. 484.
[ 2 P.
;

v.

Legh, 9 Ves.

v.

Lord Foley,

;;,

EQUITY JURISDICTION,

400

that speak the intent of the Parties, to hinder the

raising of Portions in the Life of the Father

and

Lord Eldon, however, has observed,

Mother"
" The Court ought not to be eager to lay hold of
1

circumstances.

The Court, "says he,"ought to hold

an equal mind, while construing the Instrument

and

cannot agree with what

Stanley

v.

,n

is

said in

Stanley

that very small grounds are sufficient.

If they are sufficient to denote the intention, they

are not small grounds

if

they are not sufficient

Court does not act acduty, by treating them as sufficient

to denote the intention, the

cording to

its

thereby disappointing the true

Instrument

The

first

intention of the

."

cases in

which the Portion was

or-

dered to be raised in the Life of the Parent were

Graves and Maddison, and Gerrard and Gerrard*

which were followed by, some others but in the

case of Corbet and Maidwell q , Lord Cowper made
;

a stand, and said he would lay hold of any words,

to prevent being

bound by the former

decisions

1
.

his example, and re"

fused to go
one jot farther'' than the preceding

Lord

Macclesfield followed

cases

This doctrine has been followed, and Courts

will lay hold of any words, from which it can be
fairly inferred,

that

it

was not the Intention

m Stanley v. Stanley, 1
Atk.
549; and see Stevens v.Dethick,
3 Atk. 42.
n
1 Atk. 549.

lb. 380.

2 Vera. 458.

* 1

to

See what Lord Hardwicke

in Stevens v. Dethiek,
3 Atk. 41.
s
Butler v. Duncombe, 1 P.
Wms. 452. Reresby and Newland, 2 P. Wins. 99.
r

says

Salk. 159. 2 Vern. G85.

\

TUUSTS.

charge the Reversionary

tions in that manner, for
pieces, ruining

to
intl

Term with
it

Wn-

raisin-

tearing an

is

Batate

eldestSona of far/lift M,
encourages undutifulness and inipiovid< nt

marriages"

may

the

therefore,

if,

Settlement any
it

igj

tiling

appear, that

it

can

upon the context of the

collected by

l>e

which

could not be the intention

of the Parties to

Court

is

raise them in that way,

extremely eager to lay hold of it v

the

Where,

therefore, the Portion

solutely to be paid

marriage, but

was directed abtwenty-one Of

at the age of

maintenance was directed not

commence until

to

the Estate of the Trustees should

take effect in possession, the Court, on that ac-

count, refused to raise the Portion, by a Sale of

the reversionary term w .

Questions, however, of this

sort,

do not now

often arise, for negative words are usually inserted

in Settlements, to prevent Portions being raised in

the Life-time of

the.

their consent"; but

it

is

common

rather and Mother, without

where there

to direct

that

are great Folates,

upon the

deatli of

the Father, the Portions for the Daughters shall

'See Reresby

v.

Newland,

P. Wms. 93.
* See the arguments

of Lord
Chancellor and Master of Rolls,
in Brome v.
Berkley, '2 P.
Wins. 4S.">. etc. :iih1 Hall v.
Carter, 2 Atk. 365. Stevens v.
Pethick,3 Atk. 42. Reresby v.

Newland, 2 . Wins. 99. but

seethe observations in Smith
against Evans, Ambl. G34. as
to the prudence of these de-

' Clinton v. Seymour, 4

Ves.
460; and pee Brome v. Berkley, 2P. Wms. tM. see* also
Sandys v. Saudys, I P. Win-,

7i>7.

to the

I.

v.

Berkley, 2 P.

House of Lords,

:j

Bro.

P. C, 437.
* Hall v. Carter, 8 Atk. 356.
Reresby \. Newland, 2 l\
Wins. 99.

visions.

VOL.

Brome

Wm6. 484. confirmed on appeal

D D

EQUITY JURISDICTION.

240

be

raised in the Life-time of the Grand-father, so

suspend the raising of them

as not to
lives

till

after

two

If there is nothing

more than a

limitation to

the Parent for Life, with a term to raise Portions

at the age of

twenty-one, or marriage, and the In-

terests are vested, the

contingencies having hap-

pened, at which the Portions are to be paid, the

Interest

payable, and the Portions must be rais-

is

ed by Mortgage or Sale of the reversionary Term

the only manner in which they can be

Where
tions,

Term

created

is

commencing

raised

2
.

Daughters Por-

for

death of the Father

after the

and Mother, upon Trust to raise the Portions,

from mid after the commencement of the Term, and
the Father dies, leaving a daughter, the Portion

becomes

vested,

Life of the
Interest

but

Mother
is

is

not raiseable during the

1
.

payable on Portions,

they become due b but

;

liable to a contingency, Interest

where there

power

Husband with

the

revoke
y

is

Lyon

all

v.

is

to raise

they remain

not payable

c
:

as

Portions, and for

the consent of the Trustees, to

the uses, this suspends the Portion,

Chandos, 3 Atk.

Codrington

Hall

418.
*

from the time

long as

so

v.

Lord Foley,

6 Ves. 364. Stanley and Stanley, 1 Atk. 549. and see San-

Rolt
v.

v. Rolt, For.
189.
Carter, 4 Ves. 357.

See Butler v. Duncombe, 1 P.

Wms. 453. Lyon v. Chandos,
3 Atk. 416. but see the re-

dys v. Sandys, 1 P. Wms. 707.

Hebbletwait v. Cartright, For.
31. S. C. MS. under the name

mark on

of Iblethwaite v. Cartwright.
Butler and another v. Duneombe, 1 P. Wms. 448.

Wms.

that

case

in

4 Ves.

463.
c

v. Newland, 2 P.
101. affirmed Dom. Proc.
2 Bro. C. C. 487.

Reresby

403

TKLSTS.

and

it

may be revoked any time

and paid
It

before

it is

raised

d
.

has been said, there

no instance of mort-

is

gaging a Reversion for the payment of mainte-

nance given by way of Portion

seems to be

f
;

but

the

Rule

Reversionary term raised

that, a

for

securing maintenance and Portions for Daughters

shall, in cases

either,

and when

the arrears

all

of necessity, be mortgaged, to
fallen into Possession shall

and

portions,

Estates, to

means

it

pro rata, as to the value of the Estates

There are two ways of

Sale or Mortgage

by

it

Portions are charged on

in equal rates

pay

of maintenance incurred before

came into Possession

When

pay

raising

to
g

pay

be paid

Portions: one,

the other, by

perception

of Profits \
If a Portion be directed to be raised by a given
time, out of the

Rents and Projits of an Estate,

unless annual Rents and Profits are mentioned

or distinctly appear as
satisfy the charge

but

if

will

d
e

no time

payment

not be decreed

d
,

lb.

Pierpoint v. Lord Cheney,

1 P. Wms. 493. Sed Vid. what
is said of this case, 4 Ves. 404.
f
Ravenhill v. Dansey, 2 P.
Wms. 179.
'
Tate against Hilbert, 4
Bro. C. C.280.
1
Evelvn v. Evelyn, 2 P.
Wms. 009.

exclusively intended to

% the Land

for

itself
is

may

be sold

appointed, a Sale

though the

Portion

be

Trafford v. Ashton, 1 P.
Wins. 415.
c
Small v. Wing, 3 Bro. P.

C. 50;i.
d

Sheldon v. Dormer, 2
Vera. 310. Ivy v. Gilbert,
Prec. Ch. 583. S. C. 2 P.
Wms. 13. Green v. Belchier,
1 Atk. 506. Evelyn v. Evelyn,
2 P. Wms. 0C9. Raveuhiff v.

D D 2

EQUITY JURISDICTION.

401

must be

vested, but

Nor

Profits'".

Rents and

raised out of the

be decreed,

will a Sale

there be

if

power of satisfying the charge by another mode

as if there be a power to lease or to mortgage the
a

Premises

methods

Money, imply

of raising

that the

(viz.)

Trusts of Terms directing the

for all

Money

a negative,

should be raised by the

methods prescribed and not otherwise s

But where a Term

is

limited to raise Portions

younger children, the

Ilents and Profits, for

by

Heir,

it

by

raised

object

seems,

may

insist

on having the Portions

though the younger children

a Sale,

h
.

sum

Directing a gross

way

be raised by

to

Portion, does not necessarily imply, that

be

raised at once, for

Rents and
to that

and so

Profits,

sum

may be

it

laid

it

of

shall

raised out of the

up

till it

amounts

Father will, in general, be presumed to have

owes

paid the debt he

Daughter,

to a

when

in

his Life-time, he gives her in Marriage a greater

sum

than he

owed her

to suppose that he
self a

Debtor

to her,

If there be a

v.

072. Mills v. Banks, 3 P.

1.

to leave

him-

and subject to an account.

power

Gilbert, 2 P.
13. mentioned also 2 P.

Ivy

very unnatural

would choose

to charge Premises,

Dansey, 2 P. Wins. 180. Okeden v. Okeden, 1 Atk. 551.

e
2 P. Wras. 071. Earl Rivers
v. Earl Derby, 2 Vera. 72.
f

for it is

Wms.
Wms.
Wms.

Butler

1 P.

Wms.

Banks, 3 P.

and
448.

Wms.

with

Buncombe,
Mills

and

7.

h
Warburton v. War bur ton,
2 Vern. 420.
Okeden v. Okeden, 1 Atk.
551 and see Evelyn v. Evelyn,
'

P.

Wms.

006.

TRUSTS.

4Q5

Portions for younger children, an eldest Daughter,

where there

is

a Son,

Settlement goes

all to

or

where the Estate by

a remaiudcr-man,

con-

is

sidered in Equity, as & younger Child*.

When

a Father on the Marriage of a Daughter,

gives her a Portion, and she agrees to take

it

in

demand she may afterwards

Estate, this will amount to a bar of

of any

satisfaction

have on his

any claim, she may afterwards have on the Father's Estate

Portion charged on real Estate, carries In-

terest at

tion

four per Cent."

ought

-to

be raised and paid, although Inn

mentioned

terest is not

from the time the Por-

because

it

may be

ne-

cessary that Interest should be given by way of

Maintenance,

But where
children,

for there

there

is

charged

necessarily imports,
tion to be raised,

is

maybe no other
power

upon an

to raise Portions for

Estate, that

payable, or vested,

power

the Por-

that from the time

it

is

also

in the discretion of the Party, as a necessary con-

sequence of
shall

to prescribe

be given, provided

Interest

*\

four per

him,

it,

who

what

it

The Court only

Cent, where

no

04.

"Guillamy. Holland, 2 Atk.

343

by giving
specified by

interferes

rate

has a right to fix the

k
Beale v. Beale, 1 P. Win-.
044.
Morris v. Burron-hs,l Atk.
402. Metcalfe v. Ives, 1 Atk.

rate of Interest

does not exceed legal

is

Sum'

Earl

Tonifret

r.

Lord

Windsor, 2 Vee. 487.

Boycott v. Cotton, 1 Atk.
555.
v
Lewis v. Freke, 2 Ves.
Jan. 511 ; and see Boycntt f.
Cotton, 1 Atk. 552.

lb. 512.

EQUITY JURISDICTION.

40G

In cases where Parties sleep upon their rights,

and no compromise or discussion of their claims

has taken place, and where the Defendant is ignorant thereof, and there

one

side, or

is

no

on the

disability

Fraud on the other, Interest

will not

be given on a Portion, or an account directed of

Rents and

the

of the Bill

filing

Profits

the

further back, than

1
.

Limitation over of a Portion in a Settlement,

become

in case of death before a Portion shall

payable, does not prevent the Interest from vesting

and the same doctrine,

it

seems, extends to

Portions, created by Will.

Daughter's Portion secured by a Trust

Term

not extinguished, by a Devise of the Lands, to

is

the Daughter in Tail

2.

We

now

proceed
raised

usually

Deeds

by

The Trust
Term to

Purchasers.

assignment of a
to prevent

any

right to

purchased Estate

to

consider,

on

the Trusts

Conveyances

here alluded to,

a Trustee with a

is

to

the

view

Dower, attaching. on the

e
.

These Terms are, as Lord Hardwicke says,

" mere creatures of Equity, partly to protect real
and partly

Estates,

channel

Will
r

v
,

or

."

by Deed,

Barrington

to

v.

as

by way of mortgage, or

O'Brien,

and Beatty, ISO.

Lawrence v. Blatchford,

Ball
5

keep them in the right

All Terms of years created either by

ler's

notes to

for

Co. Lit. 216

a.

and 381. b.
"Willoughby v. Willoughny,

Ambl.28.
T
As to
For the various modes of

2 Vern. 457.
1

barring Dower,

see

Mr. But-

will, see

Wynch

v.

Packington, 2 Eq. Abr. 507

407

TP.USTS.

securing the payment of Jointures, Portions for

children, or, indeed, tor any other purpose, do

(without a special provision

not determine

for

that purpose,) by the performance of the trusts

for

which they

in the

continue to exist

are raised, but

Termor,

benefit

for the

owner of

of the

the Inheritance.
If,

Man

for instance, a

seized

payment of

of Lands,

of years to Trus-

grants a lease for a long term

tees, for

in fee

some other

his debts, or for

purpose, without providing that after his debts

are paid, or purpose accomplished, the term shall

cease, or attend

Equity hold

the Inheritance, yet Courts of

that, after the debts are paid, or

pose accomplished,
Lessee, and
Inheritance,

conveyance

is,

term continues in the

the

shadow, attendant on the

as its

whether declared by
to attend the

In these cases,

continuance of the term,

is,

the benefit or advantage

the

term

during

Termor permitted

frts

Inheritance or not.

to

is in

in

during the

Termor

the

but

Equity, entitled to

all

which can be made of

nor

is

the

Owner

in

any

continuance
obstruct the

acts of ownership, or in
his Estate.

the original

the legal Interest

the owner of the fee

pur-

making any assurance of

In these respects, therefore, the term

accompanies the Inheritance. Nor can

it

be disan-

nexed, (unless expressly and designedly severed*,)

By a
in the consideration of a Court of Equity.

1 Bro. P. C. 372. and cited as

authority in Hewitt against
Wright, 1 Bro. 90.

359.

Hayter

v.

Rod,

P. W'mi-

EQUITY JURISDICTION.

108

Will, therefore, not executed according to the Statute of Frauds, the

pass the term,

Term, (unless an intention

clearly expressed",)

is

severed from the Inheritance, nor will

the Inheritance does not pass

it

not

is

pass, as

follows the

It

to

descent of the Inheritance to the Heir, and on

the death of the Ancestor vests

Representative of the
benefit

1
;

nor

is

the personal

in

Ancestor, for the Heir's

ever severed in favor of an "Heir

or Executor, though there are cases

been done, in favor of Creditors

It

follows

all

where

it

has

made of the

in-

a
.

the alienations

heritance, or of any partial Estate or interest carved

b
It
out of it by Deed, by Will, or by act of Law
of
Inheritance,
and
affected
the
is an excrescence
.

in the

same manner as the Inheritance.

assets

and

is

of a Bankrupt % subject to

The

Heir

as against the

Dower

d
,

It is real

or Assignees

f
.

principal advantage derivable from

these

outstanding terms, consists in the Security they

afford to Purchasers.
* See 9 Mod. 127. 2 Collect,
Jurid. 270. quot. Sugd. Vend.

and Pureh. 302.

y

Villiers v. Villiers,

2 Atk.

72. S. C. Barn. 307.

z
2 Vein. 139. Levit v. NeedEarn.
a
Cooke v. Cooke, 2 Atk.
and see Willoughby v.
67
Willoughby, ID. and East,
Sales, 2
7(50. 'Coodright v.
;

7 Ves. 507. and 10 Ves. 240.

In these references will be
fonnd all the most important
doctrine on this subject stated, or referred to.
c
Attorney Gen. v. Sir G.
Sandys, Hard. 489.
d
Wray v. Williams, Prec.
Ch. 151.
c
Squire v. Compton, 9 Vin.
Abr. 227. pi. 00.
f

Wife. 331.
"

V id. Willoughby and Wil-

loughby, 1
T. Rep. 703.
Swan nock and Liflbrd, Co.
b
Lit. 290 . n. 1. s.
13. and
Maundrell and
Maundrell,

Dudley

v.

Dudley, Prec.

Ch. 241. Williams

Wms.

v.'

Wray,

137. Hill and

Adams, 2 Atk. 209. Dormer
and Fortescue, 3 Atk. 124.
1

P.

TRU3T3.

409

For where a Person purchases an Estate, or

takes a Mortgage- B , and obtains an assignment of
an outstanding term to a Trustee, he
secured against

is

thereby

Estate, Charges, and

Incum-

Crown

(except

brances,

upon

all

debts

''

by specialty

,)

the purchased Estate, created intermediately

between the time of granting, or to speak technically,

the raising of the

purchase

*;

Term and

but a Purchaser to avail himself of

the benefit

such

of

outstanding Term,

have paid a valuable consideration

chase must have been

no

time of the

notice, either

fair

for

must

his pur-

he

must have had

implied,
and have

express or

theirs/ and best right to call for the legal Estate

Term
With regard, however,

of the

plied, there

is,

to notice express or im-

in the case of a

Dowrcss, one very

notable exception to the generality

trine before laid

down

of the doc-

though the Purchaser

for

of an Estate has notice that the Individual of

whom

he purchased was

quently that
right

to

term

Purchaser,

wouffe attach,

be
(it

would

* See
Evans v. Bieknell,
Ves. 164. Robinson v. Davison, 1 Bro. C. C. 63.
h
Nicholls v. Howe and
other-., 2 Vera. 390.*Emg v.

Smith, mentioned in Sugd, on

Vend. andl iiieli.:J47.;mdA]>pendix of same Work, No. 15.
Kin v. Smith, 1 Wi-ht.
31.

yet

assigned to

fi

and conse-

the Wife survived her husband, a

Dower

standing
the

if

married,

if

the

out-

Trustee for

be different

if

the

k
See Willou<dibv and Willoughby, 1 T. R. 708 ami seealso Basset v. Nosworthy, Finch
Rep. 102. where the doetrine
is well stated, and was app roved
by Lord Ro-dvn in Jerrard
and Saunders, 4 Bro. C. Ci
457. Saunders v. Dehew, 2
;

Vern. 271.
*

lb.

EQUITY JURISDICTION".

410

term instead of being assigned were suffered to

remain with the Vendor's Trustee), the Vendor's

Wife cannot substantiate a claim of Dower m

But this is an anomalous case, not reconcilea.

ble with

the ordinary principles of Equity, and

the determination
sideration, that

is

vindicable only by the con-

such had long been the practice

and that a different decision

of conveyancers,

would have shaken many titles".

Another use made of these outstanding terms
where there are two Mortgages for if the
is,
second Mortgagee has no notice of the first
;

Mortgage, and can get

protect himself
If the

in a satisfied term,

he

may

Vendor of an

Estate, conceals from the

Purchaser, the existence of an outstanding term,

a fine levied by the
five years

Vendor

to the Purchaser

with

non-claim, will bar the Assignee of

the term, and the Trust passes inclusively in the

Fine;

but

term,

and

if a
it

is

Purchaser knows of an outstanding

agreed that the term should be

assigned in Trust for the Purchaser, in such case,

though the Vendor

levies a fine to the Purchaser,

the fine will operate on the Inheritance only, and

m See

Wynn

v.

Williams,

5Ves. 134.andMaundrelland
Maundrell, 7 Ves. 507. and
10 Ves. 271. S. C. MS. The
decision of Lord Somers on
which this doctrine is grounded, was affirmed in the House
of Lords, Lady Radnor v.
Vandehendy, Show. P. C. 09.
Prec. Ch. 65. 1 Eq. C. Abr.

219; and see Hill v. Adams,

2 Atk. 20S. S. C. Ambl.
6. under title of Swannock
v. Lyfford.
n
See Lady Radnor v. Vandebendy,Prec. Ch.65. Shower's

Pari. Cases, p. 69.

Vid. Evans and Bicknell,
6 Ves. 184. Robinson v. DavU

son, 1 Bro. C. C. 63.

TRUSTS.

411

not on the term v ; such being the plain

of the Parties

Where terms
mily purposes,
well

are raised by Settlements for fa-

usually provided, (always in

is

it

drawn deeds,) that

if

become unnecessary,

or

effect, or are

and

in

intent

the Trusts never arise,

or incapable

of taking

performed, that the term shall cease;

such events the term, of course, ceases,

according to the express Provision of the Deed.

Another manner

in

by way of Merger.

which a term may cease is,

Thus, if a term of years, and

the Inheritance meet, in one person, in the same

right, the

term becomes extinct

wise, where a term of years

and the Inheritance

is

is

in another

q
;

but

^other-

it is

held in one right,

r
,

where there

or

only an equitable Estate in the Inheritance, and

a Legal Estate in the term, but the term attends

the

Inheritance

and

in

such case, residuary

Legatees have no claim under the term against

the Heir s

Although terms may have ceased,

it

is

a pru-

dent rule with conveyancers, to recommend, that

nearly

may

all

terms for years, however ancient they

be, and whatever adverse possession, or fines

there

may have

been,

should be required by

Purchaser to be assigned

p Inham
Morrice, Cro.
vCar. 109. Dighton v. Greenvil,
2 Vent. 329. See also Freeman
v. Barnes, 1 Vent. 80. 1 Lev.
270. quot. in Sugden's " Law
of Vendors and Purchasers,"
p. 330. last edition.

to him, or to a

See Cooke

v.

Trustee

Cooke, 2 Atk.

G7.
r

Inst.

338\ Gong and

Radford, Hob. 3.
5
Capel v. Girdler, 9 Ves.
509.

EQUITY JURISDICTION.

412

of the Purchaser's nomination, to attend the Inheritance

'.

was once

It

held, at Law,

that a satisfied term

should not bs set up in Ejectment, and

afterwards determined that where a term

may be put

fied, it

as a question to

was

it

is satis-

the Jury,

whether an assignment may not be presumed";

but this doctrine has been much objected to as
innovation, and as injurious

an

to

the rights

and benefits which previously accrued by means

of outstanding Terms to Purchasers and Mortgagees', and

is

now wholly

But

exploded'".

reconveyance of the Legal Estate

the

even in

will,

Equity, be presumed, after great lapse of time

140 years,

With

3.

for instance x .

regard to Mortgages,

Equity, that a Mortgagee

it

is

a Rule in

only considered as a

is

and that a Mortgage, as

Trustee

Law,

only a Security for the Money, and passes

is

in

only a Chattel Interest, and does not

thing

it

conveys.

Mortgagee.

It

Nothing

the Civil

alter

real passes

to

the
the

conveys nothing in the Land;

neither Dower, or Tenancy by the Curtesy

1
-.

The

Equity of Redemption is considered as an Estate

in the Land, and may be devised*, granted or
*
See Sugden Vend, and
Purch. 330.
u
Vid Doe on dem. Bristowe
r. Pegg, 1 T. R. 758. n. Doe

on dem. Hodsden v. Staple,

2 T. Rep. 084. Doe on dem.
Da Costa v. Wharton, 8 T. R.
p. 2.
v

Evans

184,

5.

Bicknell,
Ves.
Hillary v. Walter,
v.

12 Ves.

251.
Shannon y.
Bradstreet, 1 Sch. and Lefr.
70.
w

Lee and WalWvyn, 9 Ves.

31.
x

12 Ves. 239.

3 Ch. Ca. 3 Prec. Ch. 99.

Hardcastle,
Sparrow
v.
2 Ves. Jun. 433.
Pettat v. Ellis, 9 Ves. 563.

cited
a

TRUSTS.

41.'{

such Entail and

entailed with Remainders, and

Remainders may be barred by a Fine and Recoand a Husband may be Tenant by the Cur-

very,

Mortgaged Premises
indeed, an Advowson be mortgaged, and
''.

tesy of the
It',

absolute

in

Mortgagee,

the Mortgagee, and becomes

it

seems,

having the Legal Estate

him

to

shall

nominate'

to present

entitled

is
;

but

Manor

if a

comes

void, the

not

is

must

the

Mortgagee though

Church
in

be-

possession

the Mortgagor

entitled to present, but

c

present, unless foreclosed

Mortgagor

mortgaged with

is

Advowson appendant, and

an

he

but Equity will compel

present such person as the

1

is

void, the

or rather, per-

haps, the Mortgagor must present such person as

the Mortgagee shall nominated

When, upon

Money

a mortgage,

is

made pay-

able to the Heir or Executor, in such case, before

the day, or at the day of payment, the Mortgagor

has an election to pay

But

after the

to

day of payment

be a reinfeoffment
feited at

it

'',)

which he pleases *.
is

and the Mortgage

Law, though Equity

Casbournev.Scarfe, 1 Atk.
603. S. C. whenal the Kolls,
MS. where Sir Joseph Jekvll
held there could not be a
Tenancy by the Curtesy of an
Equity of Redemption and
*ee 2 Eq. Abr. 504. as to tenancy by theCurtesy, and Roberta
and Dixwell, 1 Atk. 008.
c
Dyer v. Lord Craven,
1 Dick. 062.
d
Croft v. Powell, Com. Rep,
609. argo.
;

over, (unless there

gives

the

for-

is

Mort-

c
Arnhurst v. Datrfiog, 2
Vern.401.
.lory v. Cox, Prer. Chan.
'

71.
g

son
see

Anon. 2 Freem. 20. Right:uid

v. Overton, ib. p. 20
Canning v. Hickes, 1 Vera,

412. S. C. 2 Ch. Cas.

187;

and see 1 Ch. Rep. 2S-3. 2 Ch.

Rep. 220.
h
See RightaoD v. Overton,
2 Ereem. 21.

EQUITY JURISDICTION.

414

gagor

relief,

so as

shall

have

his

upon payment of the Money he

Land, yet Equity will not revive

the election of the Mortgagor to pay

to the

it

Heir

But if in the Mortgage neither

Heir nor Executor be mentioned, then after the
death of the Mortgagee the Law determines it to
be paid to the Executor
It has been held that,
if there be a Mortgage in Fee, and two descents
cast, and more due upon it than the value, and
or Executor.

the Mortgagor refuses to redeem, yet

it

shall

go

Executor and not to the Heir, the Equity

to the

of Redemption not being foreclosed, or released

The

principal occasions on

of Courts of Equity

upon

is

close, a

Bills filed,

k
.

which the attention

is

called towards Mortgages,

1.

to redeem;

Mortgage; and

and

2. to fore-

in respect of what are

term-

ed, 3. Equitable Mortgages.

The

1.

Mortgage

right to redeem a

is

carefully

protected by Courts of Equity, and they will not

suffer

Mortgage Deed to prebecome an absolute purthe Mortgagee upon any event what-

any Agreement

vail, that the

chase in
ever

in a

Estate shall

and the reason

borrower too

much

who, being distressed

ble to submit to
of the Lender m .

because

is,

it

puts the

in'the power of the lender,

at the time, is too inclina-

any terms proposed on the part

The Rule is, " once a Mortgage

and always a Mortgage* .''

1

Anon. 2 Freem.

lii^htson

p.

12.

Overton, lb. p. 20.

k
Tabor v. Grover, 2 Vern.
367. S. C. 2 Freem. 227.
See Howard v. Harris, 1
Vern. 190. S. C. 2 Ch. Ca. 147.
v.

Treatise of Eq. 2 Vol. 259.

James v. Oades, 2 Vern. 402.
m Tooines v. Conset, 3 Atk.

261.

"

Newcombe v.
8. Howard

Vern.

Bonham,
v.

Harris,

TRUSTS.

No Agreement

413

of the Parties

can affect the

doctrine as to Redemption in a Court of Equity

11

You

terms

Lord Eldon, " by special

Court says are the special

shall not," (says

what

alter,

this

terms of that contract

laid

upon redeeming
Agreement,

original

or a separate

Deed

But though any fetters

Mortgaged Estate, by some

."

either in the

will not avail,

with a design to wrest the

Mortgage Deed,

where

it is

advanced, an

the Term, and at another

Rent

Money advanced and

first

for the

of the term, with a proviso, that

good conveyance, and

if

according to the Proviso,

it

if

Remainder

at three years

Interest

is

the

the

Money

paid,
is

is

not paid

Interest

granted,

has been held, be irredeemably vested in

the Party

What

on

years of

then the Premises shall be reconveyed, this

will,

if

Estate be leased for .5000

years at a certain Rent for the three

end, the

done

Estate fraudulently

out of the hands of the Mortgagor, yet

Money

called a Welch Mortgage,

is

is

a perpetual

power of Redemption, subsisting for ever, and

where the Mortgagee cannot compel a redemption
or a foreclosure

1
;

but there are circumstances

which may

create a bar even in Mortgages of this

description

Vern. 33. James

v.

Oatles,

2 Vern. 402.
1

See
Floyer v. Lavington,
P. Wins. 268. and the cases

cited in
v.

that

Bonham,

case.

Newcombe

Vern. 7. S. C.
2 Ventr. 304. 2 Ch. Ca. 58,
159.
1

>eton v. Slade, 7 Ves. 273.

Mellor v. Lees, 2 A tk. 494.

'
I.inguet against Seawen,
Ves. 406.
*
Yates v. JIambly, 2 Atk.
303.

EQUITY JURISDICTION.

416

All Welch Mortgages,

it is

observable, are with-

out a Covenant to repay the Mortgage

An

Equity of Redemption

Money

4
.

considered as a

is

Title in Equity, and not merely as a Trust, from

which in many respects it materially differs u
Sir Matthew Hale says, " a Power of redemption is
.

an equitable right inherent in the Land, and binds

persons in the post or otherwise

all
is

an ancient right which the Party

in

Equity \"

is

because

it

entitled to

W here a Mortgagee has been in possession twenty

years, without

any impediment

to assert his title,

such

as

the Mortgagor

in

Imprisonment, Infancy,

Coverture, being beyond Sea, &c. (where

it is

not

by having absconded ;) or if such impediment has

been removed ten years, it is a bar to a Redemption w
And in such case, it seems, a Demurrer
.

will lie to a Bill for an

Infancy

account

may be an Answer

x
.

And

to the objection as to

length of time in not coming

to redeem,

where the time begins upon the Ancestor,

run on against his Infant Heir, as
fine at
1

Common Law y

Lawley v. Hooper, 3 Atk.

Tucker

v.

Thurstan,

17

Ves. 133.
v
Pawlet
Hard. 465.
w
Tenner

v.

Attorney Gen.

v. Tracey,
tioned in note B. to 3 P.

men-

Wms.

and see Bonney v. Ridgard, mentioned from a MS.

note in 17 Ves. 99. S. C. but

287

it

yet
will

in the case of a

280.
u

though

not to this point, 4 Bro. C. C.

125. Trash v. White, 3 Bro.
C. C. 289. Floyer v. Lasington,

1 P. Wms. 208. Anon. 3 Atk.

313. Corbett v.Barker, 1 Anstr.
38; and see 2 Anstr. 759.
Hodle v. Healey, 1 Ves. and
Bea, 539. contra Leman v.
Newman, 1 Ves. 51. Exton
v. Greaves, 1 Vern. 138.
x

Esdell against Buchanan,

S. C. 2 Ves.

4 Bro. C. C. 254.

84. Jenner v. Tracey,

mentioned n note to 3 P. Wms.

Jun.

287.
y St.

419.

John

v.

Turner, 2 Vern.

417

TRUSTS.

The Rule,

has been said,

it

is

not founded on a

but

presumption of an absolute conveyance,

merely a positive rule introduced
quieting

the Title

the sake of

lor

so long

after

neglect

redeem, analogous to the Statutes of

at

Law'.

was held

and accounts have been kept,

session even of fifty years
b

will not bar a

act

it

cery*

that he

is

Mortg

in

seems, that a pos-

And

Redemption.

an answer, for instance,

/imitations

V--a Mortgag<

by a Will, or anv

takes notice

to

however, then- have been acknow-

If,

ledgments that the Estate

old

is

everso

it

Man

other deliberate

Chan-

to a Bill in

Mortgagee, acknowledgments

of that nature will take the case out of the Rule

Mortgagor

that a

years

redeem

shall not

but the mere demand of an account,

alone sufficient to prevent

length of time
If a

of such a

the effect

Mortgagor agrees that the Mortgagee

no objection

till

to a

he

satisfied, length of

is

redemption

happens that the person

the Mortgage,
as if

it,

not

is

enter and hold

ceive

twenty

after

is

the

Tenant

'.

time

And where

it

is

so

pay the Interest on

to

same person who

for

shall

is to re-

conveyed Ins

Life has

Life Estate to the Mortgagee, there, the presump1

Corbet v. Barker, 1 Anstr.
138; and see 2 Anstr. 759.
Belch v. Harvev, M. S.
See Lake v." Thorns, 3 Ves.
and see what is said in
17
Esdell v. Buchanan, 2 \ Vs.
Jun. 84. S. C. 4 Bro. C. C.
;

and Proctor v. Cow per,

2Vern. 377. S.C.Prec, Ch.
25(>.

116.

2 Atk. 333. Yates

2 Atk. 263.
c

Perry

P.

VOL.

Wms.
I

271.

Anon.

against

Hambly,
Marston,

3 Bro. C.C. 809. Anon. 3 Atk.

314.
rt

Proctor

v.

(Jutes,

2 Atk.

140
e

[Jodie

v.

418.

L E

1 Ves.

Healev,

and Bea.540.
Orde v. Hearing,
'

v.

Vera.

EQUITY JURISDICTION,

418

does not

lion

elapse, the

The

and though twenty years

arise,

Mortgage

is

redeemable

Redemption

right of

Mortgagor, his Heirs,

is

z
.

not confined to the

Executors,

Assignees or

subsequent Incumbrancers, but extends to

whatever

sons claiming any Interest

mises, as against the Mortgagor

fore,

claiming under a void

tary) against a

deem

for the

Deed

in the

Pre-

a person, there(as

being volun-

subsequent Mortgagee,

Deed though void

per-

all

may

as to the

re-

Mort-

gagee, is binding on the Mortgagor; a fortiori,

may any

person

redeem who has acquired

valuable consideration, an

Interest in the

for a

Land

Tenant under the Mortgagor, or a Tenant

as a

Merchant, or Staple, or Tenant

by
by the Curtesy, or in Dower, or a Jointress and
Elegit, Statute

Crown may also redeem

the

Estates mortgaged, and

afterwards forfeited by the treason, or otherwise,

of the Mortgagor

a
.

by the attainder of the Mortgagee is in the hands of the Crown, a Bill lies
b
against the Attorney General to redeem
An Equity of Redemption cannot be affected
but a Judgment Creditor may
by an Execution
4
file a Bill to redeem an Incumbrance , provided
If a Mortgage

he has taken out Execution

9.

it

Morthas been determined, that a Mortgagee

With

gage,

respect to the Foreclosure of a

755,

c
Lyster
C. C. 478.

a
See 1 Fonb. Trea. Eq.
267. n. p. and the Authorities
there cited.
" Pawletv. Attorney Genl.
Hard. 465.

d
Kennedy,
Burdon v.
3 Atk. 739. King v. Manissal,
3 Atk. 192. Sharpe v. Earl of
Scarborough, 4 Ves. 542.
e
Shirley v. Watts, 3 Atk.

Corbet

v.

Barker, 3 Anstr.

200.

v.

Dolluwd, 3 Bro.

T HURTS.

may

419

a Bill ofForeclosure, without taking pos-

file

session.

Mortgagee cannot be compelled

take possession;

by so doing, he would sub-

for,

which the Court

ject himself to an account,

not force him to do

to

will

Alter the death of the Mortgagor,

personal Estate of the Mortgagor

Mortgagee may pray

Premises, in the

instance,

first

case the

in

deficient,

is

mortgaged

Sale of the

where the Heir

and personal Representative are the same Person

'.

Where an
bringing

should pray

Adcoicsoji

mortgaged,

is

of Foreclosure,

Bill

a Sale

not bound to bring a

is

Bill of Foreclosure of the

may

Equity of Redemption

Stock

mortgaged,

out a

Bill

would

be

Stock,

may

maybe

it'

sold

of a Foreclosure,

dismissed
file

And

sell

held that Excheejucr Annuities

k

Mortgagee

the

of the Advowson*.

Pawnee of stock

of the Stock, but

instead of

',

it

has been

or East India

upon

notice, with-

which,

it

seems,

But a Mortgagor of

account of what

a Bill for an

is

due, and to have a transfer.

Mortgagee of

e
lord Penrhyn
5Ves. 106.

v.

a copyhold Estate,

Hughes,

Daniel against Ship with,

2 Bro. ('. ('. 155.
g Mackenzie
v. Robinson,
3 Atk. 559.
"

Kempe

v.

Westbrooke,

'

Tucker

v.

Wma.

who

is

"Wilson,

not

P.

261. oa Appeal, 1 Bro.

P. C. 494.
k
Lockwoocl v. Ewer, 2 Atk.
303.

Ves. 278.

EE2

II..

Yes. 278.

420

EQUITY JURISDICTION.

in possession,

may

bring his

bill

against a

More-.

$agor, before admittance, for a decree of Foreclo-

and

sure,

may

he has obtained such a decree,

after

bring

Ejectment

his

for possession

of the

mortgaged Premises".

Where a

Bill

is

brought to foreclose a Mortgage

of an Estate Tail, the Court does not compel the

Tenant

Recovery,

to suffer a

in tail specifically

to make a good title to the MortThe Covenant of a Tenant in tail Mortfor further assurance, may be laid hold of

but decrees him

gagor

gagor,
as a

ground

Where

to enforce a

Recovery

a Trustee had laid

different Persons

p.

out the

Money

of

on a Mortgage, a Foreclosure

was permitted by one Cestui que Trust, as to his

Share q
And where a Mortgagee had assigned
.

the mortgaged Property to a Person in Trust, for

who advanced

three others
."Money,

a third each

one of the three was permitted

of the

Bill to foreclose,

to

file

but the other two were considered

as necessary Parties, they all being Joint-tenants'.

If a Bill filed

dismissed,

is

Time

5
,

bya Mortgagor,

the

Money

for a

Redemption,

not being paid

at

Foreclosure, and

that operates as a

the
is

equivalent to a decree for a Foreclosure*.

n

Sutton

v.

Stone,

2 Atk.

101.

Sutton

v.

Stone, 2 Atk.

v.

Rand, 2 Bio. C.
Duubuz, 3

101.
p

Tourle

C. 650. Pye and

Bro. C. C. 595.

Montgomerie v. The Marquis of Bath, 3 Ves. 5G0,

q

Lowe

v.

Morgan^ 3 Ves.

3C8.
' Stewart against
Worral, 1
Bro. C. C. 581.
Bishop of Winchester v.
Payne, 11 Ves. 199. Garth y,

Ward, 2 Atk. 174

Tin
If} after

421

and a

a Foreclosure

brings an Action

Sale, the IVlortg.:

tor the Balance,

this

gene-

in

ral opens the Foreclosure"; but where the Mort-

gagee had taken Possession a considerable time*

and the Balance was inconsiderable, a perpetual

Injunction was decreed

An

'

Mo

Executor of a

will

be restrained

from enforcing Payment, and the

Money

ordered into Court, where there

no Heir

is

In those cases where a Mortgage

the doctrine

tacking, frequently

Tacking

Act

of the Register

England

a rule

it is

as to

Country

in that

(and

Mortgagee buys

acquires a
shall,

out

in

title in

the

is

termed

Ireland by the effect

in

in

x>
,

but

in

has great appearance

it

of hardship, though fully established

third

sought to

is

what

comes under consideration.

prevented

is

the

oi'

Mortgagee who can reconvey

be redeemed,

be

will

the

first

that

),

if

Mortgage, he

Law, and having equal equity,

language of the

Cases,

provided

the second Mortgagee^

squeeze

the third

Mortgagee, when he lent his Money, had no notice of the

second Mortgage

Daslwood

v.
Blythwayj
Abr. 317i
Perry v. Barker* 8 Ves.

527. and S. C.

13

Ves.

IDS.

S. C. IMS.
w

Schdole and WiTe

v.

Sail,

the rule

Anon. freem. 2 Vol.

the S. P.

The

p. 14.

solemnly

also
in

and LetV. 177.

* G Anne, e. 2. vid. Latouch
v. Lord Dunsany, 1 Sh. and
Lefr. 157. Bond and Hopkins,
1 Scli. and Lefr, 430.
1 Seh.

'

is

2 Ves. 573.

feq. Casi

And

Marsh

v.

laid

Lee,

G.

ami

rule was

down
2 Yen*.

337. S. C. 1 Ch. Ca. 172.

wheiein that great man Sir

Matthew Hale (then Chief

Baron, was called by the Chancellor to his assistance.
See
also Edmonds v. Povey,
1
)

LQU1TY JURISDICTION.

4-2-2

the same, even though the third Mortgagee buys in

the

Mortgage, pending

first

brought by the

a Bill

second Mortgagee to redeem the

first

unless the

Suit has proceeded so far as to a Decree, and a

direction to settle Priorities

But
a third

a prior

b
.

Mortgagee who has an assignment of

Mortgage

as a

Trustee only

or

who

has a

Mortgage of the Equity of Redemption coming to

him as Executor' cannot tack the two Mort1

gages,

to

the prejudice of

intervening

incum-

brances.
If a

Judgment

or Recognizance,

Creditor, or Creditor by Statute

buys

in the first

Mortgage, he can-

not tack or unite this to his Judgment,

thereby gain a preference
his

Money on
in the

for

he did not advance

Land'; but

the Credit of the

Mortgagee buys

third

both

same

in

&c. and

in the

a Statute, (and holds

right ,) he
1

is

allowed to unite

the Statute to his third Mortgage, for the

was

if

Land

view and contemplation of the Len-

and the Judgment Creditor, by virtue of an

Elegit might bring an Ejectment, and hold upon

der

the extended value, and as he has

Vern. 1S7. Morret v. Pask, 2

Atk. 52. Brace v. Duchess of
Marlborough, 2 P. Wms.491,
495. Pre. Ch. 249. Bacon's
Tracts 55.
a
Hawkins v. Taylor, 2 A T ern.
29. Turner v. Richmond, 2
Vera. 81. 2 P. Wins. 491.
b
Win tley v. Birkhead,2Ves.
571. S. C. 3 Atk. 811. and see
Earl of Bristol v. Hungerford,

the legal in-

2 Vern. 524. Exparte Knott,

11 Ves. 019.
c

Monet

v.

Paske, 2 Atk.

53.
d

Barnet

v.

Weston, 12 Ves.

130.
e

2 P. Wins. 491,493.
Morret v. Paske, 2 Atk.
53. Stanton v. Sadler, 2 Vern.
f

30.
g Higgon v. Svddal,
1 Ch.
Ca. 149. 2 P. Wins. 493,4.

423

TRUSTS.

Court

terest in the Estate, the

from him
If a

will not

take

it

h
.

Mortgagee lends

first

Mortgagor

',

upon

a further

retain, not only against the

Sum

to the

Judgment, he may

a Statute or

Mortgagor, but against

mesne Mortgagee (provided he had no notiee of

such mesne Mortgage)

till

both

MorL

the

and Statute, or Judgment, be paid k

Where there are subsequent Incumbrances or
.

Creditors in the Case, there, a

Man,

buys

that

in

a prior Incumbrance, shall be allowed only* what

he really paid, though there was

Sum due upon

such

prior

where the Mortgagor or

deem, there

is

in

truth agreater

Incumbrance

but

Heir comes to

his

no reason that

re-

he should have

made by another
pay what is really due

the benefit of a good Bargain

Man, and must

therefore

on the Mortgage, whatever

it

be,

without respect

to what the Assignee paid '.

Where a first Incumbrancer by Judgment, has

likewise

Judgment

Mortgage, though there

it,

Court

Mort-

will not

Credi-

upon the second Judgment, unless he

Monet

v.

Paske, 2 Atk.

53.

Matthews v. Cartwright,
2 Atk. 347.
k
2 P. Wms, 494. and see
Shepherd v. Tilley, 2 Atk.
352.
Mr. Freeman puts a
similar Case, 2 litem, p. 7.
1

the

in favor of the

direct a Sale of the Estate

another

prior to the Mortgage, yet if the

gagee had no Notice of

tor,

is

will

Shepherd v. Tilley, 2 Atk.

348. Baker v. Harris, 16 Ves.
3V9.

Williams v. Springfield,
Vern. 4?>. and see Darcey
49. Phillips
v. Hall, 1 Vern.
v. Vanghan, 1 Vern. 330. Ascough v. Johnson, 2 Vern, 66,
'

EQUITY JURISDICTION.

424

pay off the Principal and

ment and Mortgage m

Interest of the

first

Judg-

Mortgagee is not permitted to tack as against

Assignees in Bankruptcy, a Mortgage subsequent
to an act of

Bankruptcy, though without notice,

the Commission",

and previous

to

Mortgage no

interest passes".

An Heir, or

for

by such

the Devisee of mortgaged Premises p ,

cannot redeem a Mortgage

Bond% though

there

is

without paying a

no Judgment

to prevent a circuity of Action

and

this,

but that Equity

does not prevail against a Purchaser, an Assignee

of the Equity of Redemption for instance

1
,

the

bond Creditor having no lien upon the Land ;

no can he tack where there are intervening Incumbrancers of a superior nature between his3

Bond

Mortsfaoe and the

nor can a

Bond be

tacked to a Mortgage as against Creditors, though

may, against the Heir". If an Estate be devised for payment of Debts, a Mortgagee canit

not tack a Bond to his Mortgage, as against the

Creditors

v
.

1 P.

s
Ex parte; Herbert, 13 Ves,
183. overruling Collet v. De
For. 05. see also I
(iolls,
Sehoales and Le Froy 152.
'
Powis v. Corbet, 3 Atk.
556.
" Hamerton
v.
Rogers, 1
Ves. jun.513. Lowthian against
IIassel,3 Uro. C. C. 102. and

Wens. 775. Anon. 2 Ves. G02.

Shuttleworth v. Laycock, 1
Vern. 245.
r
Coleman v. Winch, 1 P.
v.
Wins. 775. Troughton
Troughton, 3 Atk. 057. S, C.

see Vanderzee against. Willis,

3Bro. C. C. 23. and Coleman
v. Winch,! P. Wins. 77G.
Y
Heames -v. Banco, 3 Atk,
030. Price against Fastnedge,
Ambl. 080.

SirH. Smithson v. Thompson, 1 Atk. 520.

n
Archer v. Snatt, 2 Str.
1107.
Ex parte Knott,
11 Ves.
111

CSG.
p

3 Atk. G30. and

see

Ambl.

680.
q

Coleman

Ves. 80.

v.

Winch,

TRUSTS.
If an

Executor brings

Mortgage of a term
due; but

also

l) l)t

for
if

4-25

Bill

to

redeem

Years, he must pay a bond

the Equity of

Redemption

be assigned by the Executor, the Assigned may

redeem, without paying the Bond."
mises,

Heir of

Mortgagor of Copyhold Pre-

files a Bill to

redeem, the Defendant cannot

If the

upon tacking 'a Judgment, becatfse the

Copyhold Lands are not liable to an Execution
upon a Judgment *.
It has been holden that, where A. had two

insist

Mortgages, on different

independent Estates of

the Mortgagor, one, a deficient Security, and the

more than
redeem the

other,

not

the Mortgagor can-

sufficient,
last,

without making good the

deficiency of the other Security*'.

there are

two

separate Mortgages

Nor. where
of

different.

same Person, can a Purchaser of

the Equity of Redemption of one of them, re-

Estates to the

deem that Mortgage only

must redeem both

redeems

if he

at all,

he

In respect of the manner

to

is

be taken as

Mortgagee,
the gross
shall
w

between

which the Account

the

Mortgagor

Sum

v.

and

appears to be a Rule, that wherever

received, exceeds the Interest,

be applied to sink the Principal

Coleman

Wms.

it

in

Winch,

1 P.

77(i.

Heir of Carron and Park,

Via. Abr. Tit. Copyhold, (O.E.)
Ca. (>.
v
Shuttleworth v. Laycock,
1 Vern. 245. Margrave v. Le
Hooke, 2 Vern. 207. Pope v.
Onslow, 2 Vern. 286, and

what

is

11

it

And

said Arg. 1 Vein. 20.

observation on Pope
Onslow by Lord Efardwicke,

Seel vid.
v.

ex parte King, 1 Atk. 300.

Ex parte Carter, Ainbl.
733.
a
Gould v. Tancred, 2 Atk.
534.
in

EQUITY JURISDICTION.

4-26

where

Mortgagee enters into possession of the

and does by

Estate,

own

his

act render himself

accountable for what he receives, in discharge of

and

his Principal,
1

directed

*.

Mortgagee

will

been held, however, that

It has

enters,

Annual Rests

Interest,

by Agreement,

of the Mortgaged Lands, at a

be
if

into possession

fair Rent, in

discharge

of the Debt, this forms an exception to the general

Rule, and he will not be compelled to account

Lands

for the full value of the

Mortgagor

If the

session, he

is

is

permitted to remain

and Profits to the Mortgagee'

not even

Security becomes insufficient

A Mortgagee
out

in possession

Money any further

necessary repair

Premises

And

if

in as

in

pos-

not liable to account for the Rents

nor

if

the

6
.

is

not obliged to lay

than to keep the Estate in

is

he bound to leave the

good condition

a Mortgagee has

as he

found them g

expended Money

in sup-

porting the right of the Mortgagor to the Estate,

where
gagee

and

it

his Title has

may add

been impeached, the Mortprincipal of his debt;

this to the

shall carry

Interest

h
,

at

the

same

rate as

the Mortgage debt'.

Robinson

v.

2 Atk. 410.
c
Moroney

v.

and Smith,

117;

Webb and

dimming,

Duke of St.

v.

Albans, 3 Ves.

25.

ODea,

Rorke, 2

Sed
Sell,

Ball

Godfrey

v.

Watson, 3 Atk.

vid.

518.

and

g
Russell v.
Anstr. 96.
h
3 Atk. 518.

Lefr. 661.
d
Mead v. Lord Orrery,
3 Atk. 244.
' Higgins v. York Buildings
Company, 2 Atk. 107. Colmaa

Woolley

531.

v.

Smithies,

Drag, 2 Anstr,

TRUSTS.
If a

Mortgagee of
he

renewal Fines,

entitled to be reimbursed

is

Mortgagee

mismanagement

Leasehold Interest, pays

out of the Estate

If a

in

Possession

for it;

default

he speculates,

if

is

guilty of gross

of the Mortgaged

answerable
:

427

but he

liable

is

it is

Estate, he

only

at his

is

for wilful

own

hazard

If he turns out, or refuses, a sufficient Tenant, he

will be accountable"'.

Mortgagee

is

not allowed to

make

charge

as Receiver, if he himself has personally received

the Rents

";

and

should be paid

this,

for

though

it

his trouble in

be agreed he
receiving the

Rents"; and though a Receiver might have been

employed

at the

expence of the Mortgagor

':

but

he actually paid a Bailiff for receiving the

if

Rents, he will be allowed such payment*

upon

Interest

Interest

Mortgage

case of a

Mortgage, principal,

is

it is

not allowed in the

To make

Interest on

requisite there should

be a writing signed by the Putties, the Estate in

Land being to be charged 8

And when by a decree on a Bill of Foreclosure,
a reference is made to a Master, to see what is due,
the

k
Hamilton v. Denny, 1 Ball
and Beatty, 202. Manlove v.
Bale and Bruton,2 Vein. 84.
Hughes v. Williams, 12 Ves.

subject Could
2 Atk. 534.
"

Godfrey

v.

v.

Tancred,

Watson, 3 Atk.

Hockmore,

49; J.

518. Bonithon v.
1 Veru. 310.

m Anon. 1 Vern. 45.

B
Godfrey v. Watson, 3 Atk.
51S. Bonithon v. Hockuiore,

r
Ex parte Campion, 3 Bro.
C. C. 140. see on this subject
2 Atk. 534. Thornhill v. Evans,

1 Vein. 310.

2 Atk. 331.
*
Browne

French

Baron, 2 Atk.

v.

120.
p

Langstaffe

10 Ves. 405

v.

and

Fenwick,
see oft

this

v.

Barkham,

P.

Wins. 053. See decree in Thorn*

bill V, Evans, 2 Atk. 332." n. 1.

EQUITY JURISDICTION.

4CS

and the Master reports what is due for Principal;

Interest and Costs, Interest will, by a subsequent
what
order, be allowed upon the whole amount of
is

1
due, except, perhaps, in the case of an Infant .
If money be lent in Town on Mortgage, the

Mortgagor may give notice for payment of the

same in Town, though the Mortgagee live in Oxford; but the Mortgagor must be ready to pay at

time keep his^Money

the time, and from that

ready, to prevent Interest running on

Where
Creditors

file

five per

a Mortgage carries

and the Mortgagee

terest,

Cent. In-

with Bond

together

a Bill for a Sale of the Estate, only

four per Cent. Interest will be allowed from the

v
confirmation of the Report .

prior

Incumbrancer cannot turn interest

into principal against a subsequent

having notice

Incumbrancer

w
.

An Account settled before

Mortgagor and the

first

Master between a

Mortgagee, binds the

second Mortgagee, unless fraud and collusion

shewn
3.

is^

x
.

In respect to Equitable Mortgages,

it

has

long been settled, notwithstanding the Statute of

Frauds, (29 Car.

2. c.

:j.

s. 4.)

that a

of Title. Deeds, upon an advance of

mere deposit

Money,

out a word passing, gives an Equitable

1

See Bennett

v.

Edwards,

2 Vein. 292.
u
Gyles v. Hall, 2 P. Wms.
378 and see Bishop v. Church,
2 Ves. 372.
* Harris v. Harris,
3 Atk;

722.

w
Digby
Ambl. 612,

lien

against

with-*

y
,

even

Craggs,

* Needier v. Deeble, 1 Ch,

Ca. 299. S. C. 1 Eq. Cas. Abr.

p. 12.
y See
Ex
17 Ves. 227

parte
;

v. Russell, 1

and

Lan;ston,
see Russell

Bio. C. C. 2C9.

TRUSTS.

42 J

egainst a subsequent Purchaser without notice

and

sucl) deposit will cover

ifl t

appear by

upon the

Evidence,

how

all the title deeds

or

far

is

it

made

they were

that

faith of that Security".

yet been derided,

subsequent advances,

Jiut

tli

it

\r\

has never
V deliver
>

whether that would not be

taken* to be a sufficient deposit,

which could be
taken upon looking at the Instruments to amount
to evidence, that the Estate was meant to be a
b

security

but

it

has been held, that the delivery

for the

purpose of having a Mortgage

of deeds,

dra\vnwill not

amount

to a deposit or Equitable

Mortgage

The meaning and

object of a deposit may,

seems, be explained by parol Evidence

a cir-

cumstance which has often been lamented

it

Indeed, equitable Mortgages by the deposit of

Deeds, &c. are not favoured, especially when contradicting a written Instrument
It

that

the deposit

if

may

tention.

remains

first

is

in

the hands of a third per-

Equitable Mortgages, and a

decision frequently lamented.
\r.

when

the Deposit

the hands of the Mortgagor himself,

Mill,

13 Ves.

114.

but see Birch v. Elkunes,

2 Anstr. 431. Plumb v. Piuit,

2Anst. 432.
* But see Vanderzee against
Willis,3Bro. C.

23.

Ex

case establishing these

Hiem

proved to be the In-

is

very delicate

It is

in

it,

be considered as a deposit for the

provided that

Creditor,

seems, though no case has so determined

son, that

the

parte Wetherell,

11

Wilkinson,

12

Ves. 401.
l

Norris v.

Ves.

Ex

'

403
lis

v.
'

Ex

300,

parte

and

IJai^h,

9 Ves.
Nor-

Bee particularly

Wilkinson, 12 Ves. 199.

parte Combe, Ij Ves.

EQUITY JURISDICTION."

430

and

seems questionable, whether a mere me-

it

morandum, kept

in his

Man

parted with to the

own
in

possession, and not

whose favour

pressed, or if Deeds were put into

the Wife of the Mortgagor

f
,

it

it is

ex-

the hands of

would take the

case out of the Statute.

In the case of an Equitable Mortgage, by the

deposit of a Mortgage Deed,

no notice

is

and he makes payments

to the Mortgagor,

original Mortgagee, the

to the

if

given
to the

Assignee takes, subject

account between the Mortgagor and Mort-

gagee.

An

Equitable Mortgage will be

against Assignees

made good

as

s.

In a case, where an Assignee bought the Bankrupt's Estate,

and out of the consideration

Money

paid an Equitable Mortgagee, and took the deeds,

which Sale was afterwards set aside, on the known

it was held that the
principles of the Court
Equitable Mortgagee did not lose his lien '.
Where a Lease was deposited to secure a debt,
the depositary was, on a Bill filed by the Lessor,
11

decreed to perform the Covenants, and, take an

Assignment paying the costs of

held, he could not
to a legal
it

abandon

Conveyance, he

it

it; for

is

and

it

was

being entitled

considered as having

k
.

Vid.

Ex

parte Coming,

9 Ves, 117.
B

Jones

411. Pye
759.

v.
v.

Gibbon*, 9 Ves.
Daubuz, 2 Dick.

See ante, p. 91.

Ex

parte Morgan, 12 Ves.

0.
k

Lneas

v.

Commerford,
3 Bro.

1 Ves. .Tun. 235. S. C.

C. C. IOC.

trusts.

An Assignment
Dec;!

gives an

to i;;Mst

of Rent* and Profit s, or of

equitable

upon

and

lien;

Mortgage

;i

entitles the

Deed, for the jxu/mcnl of

created by

Trusts,

or of compositions for debts, arc frequent,

v,

'

431

and Courts

<-!'

Equity

will assist

in

the enforce-

ment of Agreements

for a composition, if obtained

without fraud, or misrepresentation "'. Underhand

Agreements, upon those occasions, have already

been observed upon, under the head of Fraud".

When

a .Man

conveys Land

for the

his debts,

and

ance,

considered as fraudulent

is

it.

An Assignment
though

of all a Trader's Propertv,

for the benefit

of

all

his creditors,

amounts

Act of Bankruptcy the reason being, that

Trader has not a right by deed, to place his Pro-

to an
a

payment of

keeps possession of the convey-

',

under a distribution, different from that

by the Bankrupt Law '. And though

per'

ore. ained

there be a provision in

the Assignment of the

whole, or nearly the whole ofa Trader's

and Effects, that the Deed

is

Estate

to be void, if a

com-

mission of Bankruptcy shall be taken out, or

all

the Creditors whose

do not sign within

to s20,

a given time, yet still

such an

Assignment,

notwithstanding

amounts

Act of Bankruptcy

Ex

to an

parte Willis, 1 Ves.Jun.

Pollen

Wins.

1-27.

Wms.

7-27.

Ex

such

condition,

f)

parte Pournr, 10 V,
Cook's Bankrupt Law,
edit. 5. p, 89; and set- Dut-

14S.

102.
'"

if

Debts amount

v. Husband,
Cannv. Cann,

Ante,

Tarbuck

Vern. 510.

p.

P.

P.

-2-20.

v.

Marbuiy,

ton v. Morrison, 17 Ves. l!>7.

'Dutton v. Morrison, 17 Ves.
197, 8.

EQUITY JURISDICTION.

432

was the repeated doctrine of Lord Mansfield?

that every act done with a view to defeat the
Bankrupt Laws, by giving a preference to CrediIt

tors, is

and

fraudulent and void,

if

by deed

an

is

Act of Bankruptcy but a Trader, it seems, may

shew a preference to particular Creditors, provid;

ed

it is

not done under the apprehension of bank-

ruptcy, and the property

so conveyed, does not

exhaust the whole Estate, or what remains

colourably

The

left

is

not

5
.

Surrender of a Copyhold Estate in favor

not an Act of Bank-

of a particular Creditor^

is

ruptcy under the

1. c.

Jac.

15. s.

2.

because

it

does not defeat or delay Creditors, the Copyhold

being neither liable to ajieri facias or an

A. brought an Action against B.

for

elegit

l
.

adultery

with his Wife, and thereupon B. assigned

his

Estate to Trustees, in Trust to pay debts mentioned in a schedule, and such other debts as he

should name within ten days

recovered

and afterwards A.

damages, and

..5000

set aside the

Deed, but

filed

a Bill to

was held not

it

to

be

fraudulent; A. being no Creditor on the execution of the Deed, and

his debt

being founded in malcficio"

r

De

recovered

after,

4 Burr. 2174. Aldersou v.

Temple, 4 Burr. 2235. Harman
v. Fisher, Cowp. 117. Rust v.
Cooper, Cowp. 629. Hassell v.

Doug!. 86. Butcher v. Easts,

Dougl, 294.
s
Jacob v. Shepherd, 1 Burr,
478. Unvvin v. Oliver, mentioned in 1 Burr. 481.
' Ex parte Cockshott, 3 Bro.

imp s on,

C. C. 502.

Worsley

1 Burr. 467.

v.

Hague

Mattos,
v.

Rollis-

ton,

Dougl.

1 Bro. C, C. 99.

89.

S.

C.

Devon v. Walls,

Lewkner v, Freeman, Prec*

Ch. 105.

433

TRUSTS.

Man,

If a

his Life, creates a Trust for pay-

in

debts, and creates a Trust term

as

that

make

in the nature

is

for the

payment,

specialty,

of a

will

it

though simple contract debts, carry

these,

interest

some

of debts, and annexes a schedule of

ment

v
.

by such Creditors

Bill

had Bigned a Deed

as

of composition arising from a Trust Estate, con-

veyed

the purpose of paying debts in general,

for

come

other Creditors refusing to

Trusts of the

Deed

been dismissed

w
;

into Execution,

carried

but,

it

seems, a

the Trust Deed, against those

Sales,

Trustees have power to

sell

Mortgage

Where
debts,

in

under

stand out, to

it

Mortgage or Mortby Mortgage, the

raised

the Estate to pay off

Deed of Trust

is

made for payment of

extends only to debts contracted

time of making the Deed

By

the

Common Law,

Barwell

v.

Parker, 2 Ves.

303.and seeCountessof Kildare

v. Hobson, 4 Bro. P. C. 1G4.
w
Athertonv. Worth, IDick.
375.
x
Dunch y. Kent, 1 Vern.
2G0. but see Athertonv. Worth,
1 Dick. 375.

VOL.

I.

at the

Chose in Action

cannot be assigned, or granted over 1

be ex-

Money by Sale or
gages," and Money is

4.

may

in, or

Vaise

that

who

has

renounce the benefit of the Trust x

seems doubtful, whether under a Trust " to

come
It

Bill

by those Creditors, who come

hibited

have the

to

in,

except in

Palk v. Lord Clinton, 12

Ves. 48.
'

Purefoy, 2 Dick.
Vern. 28. but see
Freeman, Prec. Ch.

Purefoy

28. S. C.

Lewkner

v.

v.

105.
*

F F

LampeVs

case,

10 Co. 46*.

EQUITY JURISDICTION".

434

the case of the King*

who may

either grant or re-

ceive a Chose in Action, by Assignment

but in

";

Equity, a Chose in Action may, for a consideration

a

be assigned
a

Bankruptcy

and
e
;

and in the Assignment, no

cular words are necessary

Agreement

tains an

make

the property, and

is

though

it

usually con-

Assignee to

of the Assignor to recover

And though a

Chose hi

be assigned in consideration of love and

affection

and advancement of children,

it

Chose

in Action, once, assigned,

be without notice*.

the Assignruent

'.

cannot, gene-

be afterwards assigned,

rally speaking,

good

is

against the Representatives of the Assignor

parti-

considered in the nature of a

Declaration of Trust

Action

to permit the

name

use of the

good against Creditors under

is

though

how-

If,

ever, the Purchaser of an equitable right, gives

no

notice to the Trustee of his purchase, and such

equitable right

Purchaser,
he,

it

afterwards assigned to a second

is

who

gives notice of his Assignment,

See 2 Ws. 181.

Lord Carteret

In

Paswas

consideration ;
but see
2 Vern. 595. 3 Chan. Rep. 90.
Anon.2Freem. 145. Robinson
v. iiavasor, Vin. Abr. tit. Assignment, (D) Ca. 29.

out

Squib v. Wynn, 1 P. Wins,

Soli.

mas
5u3.

Wnght v. Wright, 1
Row v. Dawson, 1
*

Ves.

Ves.

229. overruling Thoand Freeman, 2 Vern.

is.

Browne

v.

chal 1, 3 P. Wms. 199. it

held it rai^ht be assigned with-

381 ,
411.

has been thought, would be preferred

v.

Heathcote,

Atk. KiO.

Ves. 332.
Butl. Co. Lit.
3 P. Wins. 199.
'

Wright

v.

232 b

Wright,

n.

1.

Ves.

409. Feurne 550, last edition,

Tourville v. Naish, 3 P.
Wins. 307. Brace v. Dutchess
'

of Marlborough, 2
49G.

P.

Wms.

k
Sugden's Vend, and Purcb.
600. last edit, who cites Stanhope v. Earl Verney, But.
note (1.) to Co. Lit. 290",
1 Ves. 307. 9 Ves. 411.

43 J

TRU3T3.

The

Law's not allowing such

reason of the

assignments have been considered

but there seems

(as there

Common

almost

is in

Law,) since

tended

to

in

it,

of the

the provisions

all
it

refined

been wisdom

have

to

as

champerty and

maintenance, and to pass debts into the hands of

the more powerful,

who were

thus enabled to op-

press the inferior orders.

An

Assignee of a Chose in Action, as he

titled to all

takes

it,

the remedies of the

subject

same Equity

to the

liable to in the Assignor's

hands

is

en-

Seller m , so, he

n
,

as

it

was

except in the

case of the assignment of Bills of Exchange,

notes, before they are due,

by an Assignee

which may be enforced

valuable

for

or

consideration;

though no consideration was given by the Person

who

assigned

favor of Trade

Where

made

an exception

in

there

an Assignment of a Mortgage,

is

in general cases,

his risk as to

him

to

the Assignee takes

what

is

it

entirely at

due between the Mortgagor

and Mortgagee, upon taking the account from beginning to end, unless the former joins in the

assignment

1 '.

If after an assignment of a Mortgage,

Thomas

Vern.
:

"

24,>.
n

v.

Freeman,

Ves. 122. Davies

v.

Austen,

Anon. Com. Rep.

2Eq.Abr. 85.

49. S. C.

1 Ves. Jan. 247.

f>0:5.

Ex

payments

parte Lloyd, 17 Ves.

Coles v. Jones, 2 Vern.

C92. Turton and Benson, 2
Vein. 7G4. Hill and Caillovel,

p
Chambers v.
9 Ves. 204- 208.

F F 2

Goldwin,

43 G

EQUITY JURISDICTION.

made

are

to the

Mortgagee, without notice of the

Assignment, the Assignee must allow such pay-

ments

and
Mortgage be

registered, for the registry is not no-

tice for that

purpose*

this,

It is

ill

though the assignment of the

1

advised, therefore, to take an assignment

of a Mortgage without

making the Mortgagor a

sum

Party, and being satisfied as to the

due r

As between

really

the Mortgagee and the Persons

claiming under him,

without

the privity

of the

Mortgagor, they cannot add to what* is due,

settle

the account, or turn the Interest into principal

If a Mortgagor permits an Assignee to pay the

Assignor a

sum

of

Money, which

he, with the

knowledge of the Mortgagor, represents

to

be due,

he will himself be bound by the transaction*.

Legacy be assigned, the Executor, when

called upon, cannot set off a debt, due to himself
If a

from the Legatee".

If a

Bond debt be due to J9., and B. assigns it,

is bound by having notice of the as-

the Obligor

signment, and his payment to B. afterwards, will

not be a discharge as to the Assignee r

be otherwise,

ment

if

It

would

there were no notice of the Assign-

w
.

All possibilities or contingent Interests, whether

q

"Williams v. Sorrell, 4 Ves.

3S9.
r
Matthews v. Wallwyn,
4 Ves. 127.
s
lb. 128. and see Askenhurst v. James, 3 Atk. 271
but see contra the decree in

Earl

of Macclesfield v. Fitton, 1 Vern. 169. in note 1.

and Gladwin
Vein. 135.

v.

Hitchman,

2;

Chambers v. Goldwin,
9 Ves. 270.
Whitaker v. Rush, Ambl.
'

407.
v

Diet. Langley v. Lord OxAmbl. 17. 2 Vern. 540.

Baldwin v. Billingsley.

ford,
w
.

Chan. Ca. 232.

TRUSTS.

of

Ileal or

nt

Law,

437

Personal Estate, though not grantaf. li-

are, it

seems,

Equity

assignable in

well as transmissible, and deviseable

But an assignment of

x
,

as

y
.

the half pay of an officer

upon grounds of public policy, been held to

has,

though, previous to the Statute", the

be bad':

pay of a seaman might be assigned b

At Law, a Sale by an Heir of his hope of succession, is void'; though in Equity, there are cases
.

where

it

has been established'

but Lord Eldon

has expressed a serious doubt upon this point

Not only

Trust

maybe

in esse,

e
.

but the possibility of

in

Equity'. Assignments

by an Husband, of Choses

in Action, belonging to

a Trust,

assigned

his Wife, have before been adverted to

We

proceed
2.

now

to the consideration of,

Express Trusts created hy Will.

The doctrine as
its full

to

Devises and Bequests taken in

extent, and comprehending Devises and Be-

quests of Legal, as well as of Trust Estates, would,*

unavoidably, be very voluminous

but

it is

only

the consideration of Devises and Bequests in Trust,

x

Warmistry v. Tanfield,
Rep. 29; and see 1 Ch.

1 Cb.

Ca.
y

(a).

1 (Jeo. 2. st. 2. c.

Fearne on Executory De-

Crouch

54S. etc. last edit.

v.
Lidderdale, 2
Anstr. 539. Hobson and Trevor,
2 P. Wras. 191. Beckley v.
Newland, 2 P. Wins. 181.
Wright and Wright, 1 Ves.
409. Murat v. Gordon, 1 Anstr.
34. Barnes v. Allen, 1 Bro.
C. 181. S. C. stated from

note

8.

vises, p.
*

Register's book, 3 Ves. 208.

Stone

v.

14.

Martin, 2 Vera*

595.
c
Touchst. 239. Perk. G8.
Jones v. Roe, 3T. R. 88.
d
Hobson v. Trevor, 2 P.
Wms. 191. Beckley v. Newland, 2 P. Wms. 181.
l
1

Havwood

Warmistry
1 Ch.Rep. 29.

Ante 383.

v.

Tooke, MS.

v.

Tanfield,

438

LQt'ITY JURISDICTION.

which, consistently with the plan of

this

Work,

is

here necessary tobc considered; for they alone peculiarlybelong to Equitabie cognizance.
all

Devises of Land

sidered, but only

Nor

is it

Trust that will here be con-

in

such where the construction of

the words of a Will

different in Equity, from

is

the construction which the same

receive in a Court of

Law

for

words would
those cases

in

where the construction of a Court of Equity upon

is the same as in a Court of Law, Equity

words,

professes to

decisions

Law, and

follow the

must be

Common Law
most con-

resorted to, as the

clusive authorities.

Jn

those cases where there

all

devise in Trust, or where

is

an express

the Estate

is

in

hands of Trustees, a Court of Equity

is

exclu-

sively entitled to decide.

Court of

Law

the

will

not take cognizance of a Trust: and so strictly do

they adhere to this rule, that

if

a Case be sent to

them from theCourtofChancery

they will refuse to give

it, if

the Case states a Trust.

The Common Law Courts

no jurisdiction

for theiropinion,

in

such cases have

and on the other hand, generally

speaking, the Chancellor has nothing to do with

Legal

hem

Estates

but his right of deciding

as

to

often arises collaterally.

If, for

and a

instance, an Estate

Bill

is

filed

by the

is

agreed to be sold,

Vendor

to enforce

performance of the Agreement, in such

case, the Vendee may answer, " I am ready to
perform my Agreement, if you the Plaintiff can

specific

make
served,

a good Title/'
it

is

referred to

Upon

this,

as before

ob-

the Master, to consider

TRUSTS.
if a

good

title

439

can be made, and upon exceptions,

may

upon

the

Chancellor

mine

as to the legal title to the Estate.

lie

called

to

deter-

In these, and in a variety of other cases, that

might be put, the Chancellor

to decide on

the legal

is

to an

title

Common Law

the Courts of

way, be called upon

upon
though

often called
Estate,

never can,

in

any

decide upon the equitable

to

to an Estate.

title

But though

may

in these instances, the

Chancellor

be called upon to deeide a strictly legal ques-

tion, yet

he has any doubt upon the subject,

if

Parties wish to

(unless the

have a Judgment

without directing

a case,) he

case to one of the

Law Courts

usually directs a
3

thus

ledging those Courts to be, as they

acknow-

certainly are,

the most proper forum for the decision of such

We

questions.

shall

not, therefore,

mity with the plan of this work

sively confined to

Chancery

b
,

(in

which

is

confor-

exclu-

doctrine,) notice any

of those decisions which have been made upon

legal

titles

and

shall only premise, that

'here

is

no difference between Law and Equity in determining upon the effect of a testamentary act c
,

and that the Devise of

ln,u must have the same

construction as that of a legal Estate''; a Court of

Equity having

(with

some few exceptions) no

greater latitude in the construction of Wills, than

a

Court of

Law

See Attorney
Vigor, 8 Ves, 272.
'

has
Gen.

-and

" Preface.

Habergham
r

d
Atkinson v. Hutchinson,
3 P. Wins. 259.
See Duke of Marlborough
v. 1 ord Godolphio, 2 Ves. 74.
'

v.

Ves. Jun. 2o o, 0.

Vincent,

EQUITY JURISDICTION.

440

The same words which

give a

the construction of a Court of

legal

Estate, in

Law, do also

in the

same manner give a Trust Estate in a Court of

Whether an Estate in fee, in Tail, or
Equity.
or otherwise, passes,

for Lite,

same Rules

as

decided by the

is

Courts of Law, whether the

in

Devise be of a Legal or a Trust Estate, except

in the case of Executory Trusts, there being

a
between, what are termed, " Trusts
executed," and " Executory Trusts.
difference

3 '

In the case of a Trust executed, there ought to

be no difference of construction
Equity, from what there
f

a legal limitation

It

is

in a

Court of

in a

Court of Law, upon

was, indeed', the observa-

Lord Jeffcries, that the construction of

Trusts, must be governed by the intention s but,
with the exceptions adverted to, no rule is so
tion of

adhered to in Equity, and considered so

strictly

dangerous to depart from, as that the construe-*

tion of Trusts
It

is

must be the same

not so to

Tenant

for

all

collateral

as of legal Estates

purposes,

Life of an equitable

destrov contingent Remainders

The

the

Equity, and there

is

subject, peculiar to

'

Wright

v.

Pearson,

Norton

since, a

cannot

Estate,

Trusts,

is

ex-

cognizance of a Court of
a series of decisions on that

those Courts.

Ambl.

Ante, p. 393. this docis expressed doubtfully ;

trine

3(>2.
e

consideration of Executory

clusively under

11

v.

Mascall,

2 Vera,

but in Chapman

v.

Blisset,

24.

MS. Lord Talbot

h
Wright against Englefield,
Ambl. 473. Cary v. Bertie, 2

the Remainder could not be

destroyed, S. C. For. 145.

Yern.

held, clearly,

TRUSTS.

411

" This," says Lord Hardwicke

him upon
and

a devise, "

already put

is

is

in

in a case before

mere question of Law,

a proper course,

(a case

having been directed,) and unless there was something executory in

in

it

it,

ought not

meddle with

to

Equity, except there were some case already

in point determined

k .''

So, in regard to Bequests of personal Estate, de-

terminations upon them, in most cases, belong, in

preference of Courts of

Law,

of Courts of Equity

Executors or Administra-

tors are

for

to the consideration

considered merely as Trustees in a Court

of Equity, and

Persons to

all

made, are considered

whom

Bequests are

as Cestuis que Trusts,

and as

such, entitled to have their rights ascertained and

protected by a Court

Courts recourse

of Equity
had,

usually

is

and to those

to

obtain

the

benefit of a Bequest of personal property.

We

few words upon the

shall, therefore, after a

general Rules for the construction of Wills proceed

to consider
I.

Executory Trusts, and personal Bequests,

In regard to decisions upon Wills, there

is

only one general Rule of Construction, equally

for

Courts of Equity, and Courts of

the Courts are bound to

may condemn

The

the object.

be followed where

it

is

plain,

trary to the legal operation of

for in a
k
2;">0,

Law which
;

apply, however they

Intention

must

even though con-

words

in the

Will

';

Will no particular words are required to

Colaon

v,

Colson,

'1

Atk.

'

Cowper

v.

P. Wins. 741.

Earl Cowper,

EQUITY JURISDICTION.

442

pass an Estate, but any words that

shew the

m
tion of the Testator are sufficient

inten-

This inten-

Will taken

the whole

tion is to

be taken from

together,

and nothing dehors the Will can be

produced to explain the same, unless there be a

ambiguity

latent
to

have

in the

Every word

its effect.

cording to the natural and

whatever may

be the

Every word

Will".
is

bly

that

li," says

Lord

view of the Will,

tion, or

not

is

to

intention of the Testator unavoida-

requires a different construction*

11

"

if the

import"; but

grammatical con-

struction of the words of a Will,

govern

to be taken ac-

common

strict

is

A Ivan

" upon a general

lei/,

can collect the general inten-

any one particular object, and there are

expressions in the Will, in some degree militating with

inserted
I

it, if I

plainly see those expressions are

by mistake,

may

them

reject

cannot reject any words unless

they were inserted by mistake

clear,

parts of the

is

it
:

But

r
.

perfectly

and

if

two

Will are totally irreconcileable,

know

of no Rule but by taking the subsequent

words

as

an indication of a subsequent

inten-.

tionV
m Dobbins v. Bowman,
3 Atk. 409.
Andrews against Emmot,
3 Rro. C. C. j03.
Vid. Thelluson
ford, 4 Ves. 329.
v

Phillips

4 Ves.

57.

v,

v.

Wood-

Chamberlaine,

4 Ves. .311.
See accord. Haws
3 Atk. 525.
r

247

v.

Haws,

Sims v. Doughty, 5 Ves.

and see Constantine v.
;

Constantine, 6 Yea. 102.

tiiusts.

443

In the construction of Wills the Court will not

exactly consider the order of placing the words,

would

if it
t)\e

better answer the apparent intent of

Testator otherwise,

sensible

1
;

but not to kt

legatees in a Will

a limitation

in different

devisees and

".

mistake cannot be corrected, or an omission

supplied, unless

is

it

perfectly

ference from the whole

a doubt, the safest

words of art

clear,

way

is

it

in-

fair
is

comes

such
to

be

to adhere to the words".

they are to be con-

used,

are

Sy

Will, that there

Whenever

mistake or omission'.

If

and render

strued according to the technical sense, unless by

the context, or by express

uords,

it

is

plain, the

Testator did not intend them to be taken in

sense

But the Court

out by strong,

put

interpretation,

drawn from, the

The Court

provided

Law

for

bound

it is

v.

Duke

Mellish

into

consistent with the Rules of

Cooke,

King

Ves. 32.

of Marlborough
Ixnrd Godolphin, 2 Ves. 01.
49. phillips

Will

inference

v.

Mellish, 4

v.

4 Ves, Jan. 57.

Laws

that private

make, and they are not

to

altered even by the

East

plain
y

Men's Deeds and Wills by which they

are allowed

and rational

to carry the Will

settle their Estates are the

solid,

and

upon,

rest of the

are

effect,
;

by the prima

will abide

the settled meaning of the words,

facie, intention,

until driven

that

v.

Ves.

Chamberlaiae,

in his
w

Mellish

to

Courts of
v.

Men
be

Law

Mellish, 4 Ves.

50.
x

Holloway v. Ifollowav,
5 Ves. 401. ami see Ambl. 377.
T
Deane v. Test, 9 Vcs. 152,
154.

EQUITY JURISDICTION.

411
or Conscience

7
;

and

if

the Court can see a general

Intention, consistent with the rules of

Law, but

the Testator has attempted

that into

effect in a
is to

way, that

is

to carry

not permitted, the Court

give effect to the general intention, though

mode

the particular

shall fail

In some cases,

cases of Creditors, an Intention in the Testator

may

be inferred from the. purpose of his Devise,

beyond any thing he has

Where words
as tends to
It has

make

such a construction
it

good

is

b
.

two-

a Will are capable of a

in

fold construction,

express terms

said in

received

c
.

been said that though the Court can

construe and expound the words of a Testator's

them out of

Will, yet they cannot strike

tirely

d
;

and, certainly ,1a

Court

it

en-

words

will not reject

having an obvious meaning, upon a suspicion that

the Testator did not

know what he meant

words may be rejected where they

of the Will

f
;

but

are repugnant

intention manifested in

to the clear

other parts

but a positive bequest cannot be

controuled by inference and argument 5 .

It has

been observed that

if

are totally inconsistent, and

two parts of a Will

cannot possibly be

Where, how-

reconciled, the latter shall prevail.

ever, the

same thing has been by

Lord Falkland

v.

Bertie,

Milnes

v.

Holmes

v.

Vern. 337.
8
lb. 329.

306.

Mb. 311,312.

320.

lb. 312.
"Southcote
233.

v.

Watson, 3 Atk.

42.

different parts of

Jones

v,

Slater,

8 Ves.

Cradock, 3 Ves,
Colbeck, 8 Ves,

44j

TRUST.-.

the Will given to

two persons, doubts have been

they should not be joint-

entertained, whether
tenants.

meaning can be collected, but it is left

wholly doubtful in what manner that is to take
If*

Will

effect, the

is

totally void

for

uncertainty

Such are the rules adopted in respect of judgments upon Wills and it must be obvious that
a decision upon a perplexed Will, must, unavoida;

much depend on

bly, very

the judicial discre-

and cannot, in general, be

otherwise characterised, than as " the conjecture
Judge,

tion of a

of the Judge upon the meaning of the Testator,

after

hearing his intention discussed upon the

whole Will

An

2.

."

Executory Trust by

will, is

where the

Will does not give a legal Estate, but only creates

a Trust to be carried into execution
short, there

Law

the

no

such
is

is

to

k
.

distinction between Trusts Executed,

as are executory,

is

this.

for settling

his Estate,

Executory Trust,

is

and

Trust executed,

where the Testator has given complete

An

where, in

Conveyance under which

intended to take, by a general ex-

pression of Intention

The

it is left

to frame the

Party

the

is

direct gift made, but

directions

with perfect limitations.

where the Testator's

di-

rections are incomplete, and are rather minutes or

Constantinev. Constantine,

6Vei. 102.
See what Lord Eldon says,
9 Ves. p. 152. in Deane v. Test.
1

2-31.

of Lincoln v.
of Newcastle, 12 \\>.

Countess

Duke

EQITTY JURISDICTION.

416

as in

of Trusts executed,

In the cases

instructions.

legal expressions

have a

will

immediate devises

at

strict

Law, though, perhaps,

contrary to the Testator's intention

cases of Executory Trusts,

according to

it

but in the

the Court will con-

and words

and direct the Conveyance

sider the intention,

legal effect,

limitation,

of

as

" Heirs of the body," will be construed as words

of purchase,

shewn an

his Will,

be construed

is

by Will

the
'.

intention that they should not

former sense.

in the

The execution
Deed,

Testator has, by expressions in

if the

same

of Executory Trusts created by

as of Executory Trusts, created

Cases of

of Marriage Articles

this description, arising

out

been adverted

have before

to.

In the cases of Trusts executed, or immediate

'devises, the

Equity,

is

construction of Courts of
the same, because

Law and

the Testator

is

thought not to suppose, that any further conveyance will be made

thought

is

the

Trusts

to

but

mean,

to

in

Executory Trusts, he

to leave

be executed

and more accurate manner

somewhat
in

and

the Court decrees according to

not according to

to

be done,

more careful

for that reason,

the Intent, and

the strict legal effect of the

See Shaw v. Weigh,'l Eq.

Abr. 184. Jones v. Morgan,
1

1 Bro. C. C. 206. Poolev. Poole,

3 Bos. and Pul. 820.

m White v. Carter, Amb!.

91. Garth v. Baldwin,

2 Ves,

655.
n
Vid. what Lord Eldon says
12 Ves. 227.

Ante, p. 50.

417

TRUSTS*

This

terms, used

by the Testator

appears

have been

the

to

thoritatively settled, in

Sutton, which

House

doctrine

time

au-

the Attorney General v.

went from the Exchequer,

to the

of Papillon and Voice', has often been

quoted, in illustration
this subject;

legal

first

of Lords 4 .

The case
on

for

Rule of the Court

of the

for in that case,

it

is

said

rule prevailed as to that limitation

the

the

in

Will which included or carried the legal Kstate

and the intent was permitted

rule, as to that part

to controul the legal

of the same will, which was

purely executory, though the words of the Will,

were, except as to

difference, exactly the

this

same.
It will,

however, be found that,

though the

distinction between Trusts executed and executory,

is

Voice

is

well established, yet that Papillon and

not an authority for

Report of that case,

in the

it.

According to

MS.

Author's possession,

appears, that after the decree from the Rolls

appealed from, a Supplemental Bill was

it

was

filed

by

the Plaintiff, setting forth that, upon his Father's

death, he covenanted to settle the

Bentley to the use of himself

" See Glenorchy r. Bosville,

Tor. 19. S. C. MS.' Stamford v.
Hobart, 1 Bro. P. C. 288.
Huberts v. Dixwell, 1 Atk.
C07. Sperling v. Toll, 1 Ve*.
70.

Manor

for life,

Wms.
Wms.

of Great

with a Re-

733. S. C. M.S.
478, S. C. MS.
*1 Fonbl. Treat. Eq. p. 403.
Fearne o Remainders, 140.

1 P.

I*

last edition.

EQUITY JURISDICTION.

448

mainder

to his first

Counsel

for the

Son

and upon

Defendant gave Up

to the Estate of Great

which remained

tion

in Tail,

Bent ley

the first point as

and the only ques-

Chancellor to deter-

for the

mine was, what Estate the

this the

was

Plaintiff

to have, in

the Lands to be purchased, with the moiety of the

Father's personal Estate
said

is

stated in

follows: "
Life,
is,

the Chancellor

MS. Report,

Lord Chancellor

alluded

An Estate

to

to, as

one

with a Remainder to the Heirs of

his

Law, an Estate

Man

in

made

in Tail

and

if

for

body,
has

we cannot controul him and say he

have made it otherwise. I am inclined

a Will

ought

to

to think this

you

the

What

shall

Judges

;"

an Estate

in Tail,

have a case made

but

dants objected

day when
;

the

that,
to,

so

it

but

for the

Counsel

if

you

opinion of the
for the

stood over

Defen-

the next

till

the Chancellor continued of the

opinion as to the Letter of the Will

but

the Intent of S. Papillon was plainly that

be an Estate

for Life in his

will,

same

said,
it

" as

should

Son, and as they

now

come for aid from this Court, we ought to tie

them down to what was intended by the Donor:
so decreed that his Trustees

should find out a

Purchase

and that

as soon as they could,

be conveyed

to the

Plaintiff for

his

it

should

Life,

Re-

mainder to Trustees to preserve, &c. with Re-

mainder to his
It is

first

Son, &c."

very plain, therefore, that no decision was

made upon

the appeal in regard to that part of the

devise which was a Trust executed, but only on

frSVST.

that part of the devise

4 !D

which was

be cited, as

therefore, properly

cannot,

executory^ and

sion, establishing the distinction

between Trusts

executed, and Executory Trusts*

tion,

however,

is

distinc-

to, as well as in others, th at

may be mentioned.
The decisions in
Trusts, do not

That

established in the various

fully

alluded

cases before

a deci-

these

of Executory

cases,

Lord Hardwicke

arise,

says, from

upon

the Courts' making a different construction

upon a

a trust, than

circumstance
to

in

but that ;ome

legal Estate,

the will

lias

induced the Court

make a narrower construction *.

The cases have been where some

clause repug-

nant to the nature of an Estate Tail, shewed the

Donor intended only an

tate granted or given

An

Estate for Life.

by

will to

A.

the Heirs of the body of A., by the

and the well known rule

Es-

and

for Life,

to

Common Law,

in Shelley's case

h
,

gives

an Estate Tail, and the same Rule prevails with

respect to Trust Estates

by his Will
Life,
is

and

but where the Testator

directs his Trustees to convey

to the

to

A.

for

Heirs of the body of A., the Trust

considered as Executory,

on account of the

direction to the Trustees to convey, and in such

case the Court directs

how

the

Party shall con-

vey, and considers the intention of the Testator,

and orders the conveyance according

1
Roberts
G09.

VOL.

I.

v.

Dixweil, 1 Atk.

C G

1 Co. 93.

to the

form

450

EQUITY JURISDICTION.

and method of conveyancing

let it

be

power of the

in the

And where

his

power

dock the

to

ment was decreed

So, where

A.

to

be conveyed to

with remainder to the issue of her

f

settlement was decreed

strict

directed his Trustees

vested to convex),

and the Court,

Will, the Testator has

m whom
this

^'c.

is

as in cases of

the legal Estate

Marriage

Articles,

so*

best to answer the intent of the Testator

as

e
;

Testa-

in all these cases, the intention of the

but

is

an executory Trust,

power, to mould the conveyance

in its

it

should not be

entail, a strict settle-

Wherever, indeed, in a

has

it

Lands were directed

for Life,

body, a

lands

on A. and the Heirs

to be settled

of his body, with a proviso that

in

as not to

taker to destroy

first

the Contingent Remainders'

were directed

and so

must appear expressly or impliedly from ex-

tor

pressions in the Will

mere direction

h
.

to

convey an Estate

and the Heirs of his Body, will

convevance
In Wills

to him, of an Estate Tail

as in

entitle

to

A.

A.

to a

'.

Marriage Articles

l
,

cross Re-

mainders may be raised by implication.

c
See Roberts and Dixwell,
Atk. 607.
1

Huskerville

v.

Baskerville,

2 Atk. 279.
e
Leonard v. Earl of Sussex,
2 Vera. 526.
'

Glenorcliy v. Bosville, ForS. C. MS. ; and see

rester 3.

Sir
1

J.

Stamford

v.

Hobart,

Bro. P. C. 288.
B

Marryat

130,

v.

Townley, 1 Ves.

h
Stanley v. Stanley, 1G Ves,
491.
Legate v. Sewell, 1 P.Wins.
87. Bale v. Coleman, 1 P.
Wms. 142.
k
Marryatv. Townley, 1 Ves.
102, 104. Green v. Stevens,
12 Ves. 419. 17 Ves. 04.
'

603

Twisden v. Lock, Ambl,

; and see 17 Ves. 67.

ljfitXSTS

hi

where the Testator has directed

be laid out in Land, it is not material

cases

all

Money

4 31

to

whether he has used any technical terms:

be a clear intention, the Court will
intention, by correcting,

The Only

sense.

execute that

adding, or altering the

question where the Court

be the Conveyancer,

create a perpetuity;

but

if

cording to the Rule of Law,

distinction

Executory Trusts,

tablished in a variety
wicfee,

in his

supposed

to

it

will give

of cases

decision in

as to

it

effect"

Trusts executed

we have

as

Law,

Intention be ac-

the

between
is,

to

is

whetherthe Intention of

is,

the Testator be against any rule of

The

if there

seen, fully

and
es-

but Lord Hard-

Bagskaw and

Spencer,

is

have denied that there was any dis-

tinction between

them

and

thought to have

is

placed them on the same footing, by declaring that'

all Trusts are exec u ton/.

By

'.'

this observation, it

is

apprehended, Lord

Hardwicke did not mean todenv, however strongrlv

and justly he may have disapproved, the distinction
in

Equity between those cases where the Estates

nte finally limited

by the Will

itself,

without any

kind of reference to any further execution of

them, by a conveyance directed by such Will,

and those cases, where the Will

only directory,

is

and prescribes the intended limitations of some

future conveyance, or settlement, directed by the

Browne against Do Laet, 4 Br>.

G G 2

C. C. 535,

EQUITY JURISDICTION.

43'2

will to be

that

was

all

made

for the effectuating

but

he unequivocally and expressly denied,

the propriety of terming

cases,

them

" Trusts

executed.''

the former class

It

of

was the complaint

of a Logician.

The remark

of Lord Hardwicke was not

anew,

nor a hasty, off-hand notion, then, for the

time entertained by the Chancellor.

So long

ten years before, in the case of Hopkins

kins

as

and Hop-

according to the Report in Atkins, he had

expressed a similar opinion.

was owing
decision in

Besides, too, there

to the Trial of the Rebels near an in-

between the hearing and the

terval of three years,

of the

first

Bagshaw and Spencer.

MS. Reports

of this case,

Indeed, in one

with which the

Author has been favoured, his Lordship prefaces

his

Judgment with an apology

time
fairly

had been depending.

it

It

for the length

may

therefore be

concluded, that this part of the case was

maturely and anxiously considered.

error,

of

it

was not casually, or

fallen into, after

If there

was

hastily adopted,. but

an almost unprecedented length

of deliberation.

According

to

Atkyns's Report of Hopkins and

Hopkins, the Chancellor is reported to have said,

" a distinction was taken between those cases and
the present, that they were cases of extraordinary
Trusts, where the Will itself directed a
ance, and where there

is

Convey-

no Conveyance directed,

but the Trust only declared by the Will.

*

Atk. 580.

I ad-

TRUSTS.

453

mit the Court has thrown out such sort of expressions, but I think there is no difference, all
Trusts arc executor//, and whether a Conveyance
be directed by the Will or not, this Court must

when asked

decree one,

at a

proper time, but /

do not give any conclusive opinion

to oust thai dis-

tinction"

The

has had

general correctness justly

its

case

of Hopkins

by the late Earl of Rossli/n

suppose

to

The Author

Forrester

has

possession, a

in his

in

the report of the

any thing

is

impeached
is

no reason
very ex-

of that case; but certainly neither

that note, nor

in

but there

incorrect as to the passage quoted.

it

cellent note

and Hopkins

to

case by

be found, like the

marked observation upon Trusts executed and

executory, as

But

it

is

given

language attributed

wicke did use the

for in the case
cer,

Hopkins, and
ports

in

of

print

clown a doctrine

to hirp

Bagshaw and Spento Hopkins and

alluded to of

a case so long

Report of Atkins.

in the

seems highly probable, that Lord Hard-

subsequent

which there
and

are

many Re-

manuscript,

in

way

every

he

consistent

lays

with

which he had promulged in Hopkins and

Hopkins. His words are "All Trusts are in
that,

the notion of
in this

Court.

Law

executor//,

At Law,

and

are to be executed

before the Statute of Uses,

every use was a Trust, then the Statute executed the

legal Estate,

and joined it

a Trust executed

is

and therefore
and to bring it

to the use,

a Legal Estate

a Trust in Equity, the legal Estate must want to

to

Cas.
1

The

Temp. Talbot, p. 44.

best report of this case

i*

in

<lica,

Vol. Collectanea

413.

Jua-

EQUITY JURISDICTION.

45-i

be executed by a

Conveyance."

plainly and explicitly delivered,

so

doctrine

seemed only to

require to be stated, in order to be understood,

and

to carry conviction.

The

true objection of

the propriety of the term

seemed

a Scholar
rate,

and

Lord Hardwickc was

which

to

Logician and

as a

him unwarranted and inaccu-

to

as leading to confuse a subject, already

sufficiently intricate^

It

was

to this classification

He

of Trusts he so justly objected.

Law, he shook no

decisions, as

thought, and have

objected to him.

seriously,

In

as

factj

altered

some seem

no

have

to

but undeservedly
the

Term "Trust

executed*' had crept into general parlance, and

as the phrase

ever wrong in

was convenient

in argument,

original introduction, so

its

how-

we

find

Lord Hardwickc

(to

many who have

misinterpreted his sentiments)

using the same term

the great

astonishment of

in cases anterior, as

well as

subsequent to the case of Bags haw and Spencer

where he had so
of the

use of

clearly evinced the impropriety

term, though
it,

nessofits

always accompanying the

with words expressive of the inexactfirst

introduction.

Lord Mansfield,

so long the pride

and glory

of his country, on more than one occasion, coun-

tenanced Lord Hardwicke

proposition, and dis-

tinctly expressed his concurrence

with Lord Hard-

wicke. In the celebrated case of Perrin

his

Lordship upon the

first

that the distinction between

and Blake ,

argument observed,
Trusts

executed

and

TRUSTS.

Trusts executory

was not founded

observes, "

absolutely necessary, to the

existence

it

is

Trust that

of a

cause a Trust executed

bu executory,

it

within the

is

And this/' says

Uses.

in sense.

He
\<

ry

be-

Statute of

he,
Lord Hardmcki parBagshaw and Spencer" It is
thus, he calls in the aid of Lord Hardwicki *s opinion to sanction his own. gives credit to that
opinion, and delivers his own without the least
" :

ticularly remarks in

symptom

of doubt or hesitation.

In his Judgment

Perrinand Blake*, he observes,

in

that he argued

Bagshaw and Spencer in every stage of it. Thus

interested as he must have been, and anxious and
certainly well able, to

ment of Lord Hardwicke

in

every part of the Judg-

sift

in that case, afterwards

February 1769, elevated

as

he had

recently

been, to the distinguished situation of Lord Chief

Justice, with the

eyes of

all

of upwards of twenty years

upon him,

after the

a period

decision in

Ha^sliaic u)id Spencer, he confirms, in the strongest

language, the doctrine of Lord Ilardnnc/ce. But

this

is

not

Laming

h
,

all

his Lordship

and observes,
tion,

subsequent case of Long and

in a

'

there

all Trusts are

reiterates

was no

the

opinion,

solidity in the distinc-

executory."

Thus

again ad-

hering to the very words of Lord Hardwicke, and

further

observing

upon Trusts,

in

conformity

with the Chancellor^" they are to be executed by

a Conveyance, and the Parties have a right to
apply to a Court of Equity

Vol. Collectanea

dica, 316.

Juri-

for

such Conveyance

2 Burr.

110b.

"

45S

EQUITY. JURISDICTION".

With

respect therefore to the distinction between

Trusts executed and Trusts executory, the opi-

Lord Mansfield was

nion of

in

exact confor-

mity with that of Lord Hardwicke ;

phraseology almost

their very

If Lord Mansfield
Lord Hardwicke as to sup-

tallies.

so far misunderstood

pose that the Chancellor not only repudiated the

but also the cases and diswhich that Term was applied, he

term, Trust executed,

tinctions to
certainly

went

Hardwicke

far

beyond the meaning of Lord

<

After so plain, and so studied an exposure of

the impropriety of the

distinction

between what

have been called Trusts executed, and Trusts executory, proceeding too, from Characters so eminent, from as great a Chancellor, and as great a

Chief Justice
of whose great

as ever

adorned

abilities

this country,

and virtues were so nicely

Lord Chief
he hardly knew

matched, that more than once the

Justice

which

Kenyon
to think

"

protested,

w as
r

both

late

the greater man,"

it

might

have been imagined that the supposed propriety,

or the supposed necessity of the term Trust executed,

cated.

would hardly once again have been

It has,

however, found

its

vindi-

supporters, and

amongst the most formidable of these we may rank

the late able

and ingenious

indeed ipse agmen, and

JSIr.

who

has

who is
devoted many a
Fearne,

page of his profound and incomparable Essay on

Contingent Remainders,

to a long

exposure of what he considers

doctrine of

Lord Hardwicke.

to

and elaborate

be the erroneous

According

to

Mr,

TRUSTS.

Fearne%

Trust executed,

where the Trust

directly and wholly declared by the Testator

is

that

itself,

is

on the Lands immediately under the Will

to attach

is,

by the Will
to

4j7

where the Estates

itself,

arc finally limited

without any kind of reference

any further execution of them, by

ance directed by that Will

Convey-

and he describes Exe-

cutory Trusts, as being those which are only directory, or prescribe the

some

future

Mr.

limitations of

Conveyance or Settlement, directed

by the Will
them.

intended

made,

be

to

According

to

the

for

this

effectuating

mode

of

arguing,

Fcarne affixes a very different idea to the

term " Trust executed," to what Lord Hardwicke and

Lord Mansfield

affixed

to

term " Trust executed,'' they meant

become such by

By

it.

the

legal Estates

where no
subsequentConveyance wasnecessary andtosuch
the Statute of Uses,
;

an Estate they thought the term " Trust executed,''

The words

exclusively applicable.

of Lord

Hardicicke in Bags/taw and Spencer, are expressly

" a Trust executed

to this effect,

Estate
Perr'in

in other

ticularly

words

is

legal

is

observe,

in

within the Statute of Uses, or

a legal

Estate."

that neither

cuted, nor a Trust executory,

'

and the words of Lord Mansfield,

and Bla;:e, are to a similar effect. "

Trust executed

Fcarne

is

;''

definition of

it,

is

We
in a

must

par-

Trust exe-

according to Mr.

the legal and cqnita-

Contingent Remainders, 4th Edition,

p. '217. etc.

EQUITY JURISDICTION.

ble Estate united

both those Trusts as de-

for in

Conveyance by the Trustees

scribed by him, a

would be necessary
the Cestui que Trust

to give the legal Estate to

so that whether a Convey-

ance were directed by the Will or not, the Court

of Chancery must decree one at a proper time, as

Lord Hardwicke observed

kins

in

Hopkins and Hop-

and a Conveyance being

in

both cases to

be made, the Trust, the Chancellor rightly considered

tial

as in all cases executory.

part of the Trust

is,

"

One essen-

that the Trustee

is

to con-

vey the Estate at some time or other; sometimes

be done sooner, and sometimes later

it is

to

this

whether the Testator has directed

it

and

or not,

much every Testator is presumed to know.

One may therefore reasonably doubt, how it can

and so

make any

substantial difference, whether the Tes-

tator has in

words directed a Conveyance or not

since the law,

that

is,

takes notice, that the

the course of the Court,

Testator could not intend

his Estate should always remain

in the Trustees,

but that one principal confidence reposed

is

to

convey

The

couched under

:-

in

them

propriety of the distinctions

the terms

Trust executed and

executory, was always doubted of by Lord Hardicicke ;

was

but the denomination

clear

Trust executed, he

was bad.

But, says

Mr.

iived the idea that

Fearnc,

Lord Hardicicke nega-

by Trusts executed he meant

Collectanea Juridica, 413.

TRUSTS.
legal Estates, or

ferences

Uses executed

somewhat

forced,

termed, a torture

fairly

i\j[)

and then by

in-

may

be

and by what

of words,

expressions from Roberts and

terior to

lie

some

cites

I )/.ciccll,-a

Caseaw-

Bagsluno and Spencer, from which he in-

Lord Hardicicke did not mean what Ju

Bagshaw and Spencer for that must really

sists that

said in

be the Case,

if

the opinion of

and Spencer,

we do but

Lord Hardicicke

as to

Trust executed.

as

line

consider
is

how
in

explicit

Bagshaw

his idea of what was styled a

Mr. Fearne's words are these,

Lord Hardicicke did not expressly draw the

between Trusts executed and executory, it

may

be suggested, that he ranked

possibly

all

Trusts under the description of executor}', and

meant by Trusts executed,

executed.''

Can

legal Estates or

there be a doubt of

it ?

Uses

What

Mr. Fearnc considers as a possible suggestion of

the reader, was as plain as words could speak, the
very

much

point which Lord Hardicicke

and

to support,

in

laboured so

which he was seconded

by Lord Mansfield, Mr. Fearne continues, "we

are to remember he in fact negatived any such
conclusion, when he Sd'n\'\n Roberts and D ixiccll,
to be sure where an Estate has been granted or
given by Will to A. for
the body of A.

Common Law
convey

to

life,

and to the Heirs of

such a devise has been by the

united so

in the

first

him an Estate Tail

person, as to

that the

same

construction, too, had prevailed in Trust Estates

but in the Case before him he said, " there were

all

sorts of Trusts,

&c. but the

latter part of the

EQUITY JURISDICTION.

AGO

Trust was merely executory"

Now

distinguished between

Fearne, he expressly

Mr.

here, says

legal

Estates and Trusts in general, and between several

sorts of Trusts;

but therefore

sort of Trust executory,

in

terming one

he recognised a distinc-

tion between that and other Trusts that were not

so,

and clearly pointed out the nature of that

tinction

in question

by saying, the Trust

dis-

was

merely executory, and to be carried into execution,

and

referring to the very cases in

which the

between Trusts executory and

executed, had been explicitly and clearly drawn.
How it was that Mr. Fearne could promulge senline of distinction

timents such as

these,

it

difficult

is

to divine.

After Lord Hurdwicke had observed so explicitly

in

Bagshaw and Spencer that"

all

Trusts are exe-

and " that a Trust executed was

cutory,'*
Estate,'*

how could

meaning

How

it

was

a legal

be possible to doubt his

it

possible to suppose, as

Mr. Fearne has supposed, that Lord Hardwicke

did not mean to rank all Trusts under the description of executory, nor mean by Trusts executed,
legal Estates or

Uses executed

Case of Roherts and Dixwell seems by

no means to affix to the phrase " Trust executed" that sort of sanction for which Mr. Fearne

The

so strenuously contends.

give the passage at

full

It

may be

length,

proper to

and thus enable

Judgment
respecting the true and natural import of what
Lord Hardwicke has said. " To be sure where an
the reader more correctly to form his

Estate has been given or granted to

A.

for life.

TRUSTS.

and

to the Heirs of the

body of A. such

Common Law

has been by the

first

4(jt

a devise

so united in

tin-

person as to convey to him an Estate Tail

same construction too has prevailed with re-

the

spect to Trust Estates.

here arc

all

J3ut

the present case

in

sorts of Trusts, as to mortgage, sell,

&c. but the

latter part of the Trust is merely

executory, to be carried into execution after the
performance of the antecedent Trusts
the whole
;

direction therefore
are to direct

how

falls

upon

this

Court, and they

the Parties are to convey. This

Court have taken much greater

liberties in the
construction of executory Trusts, than where the
Trusts are actually executed." It cannot be

denied that Lord Hardwicke has used in this Case

the terms Trusts executed and Trusts executory, and

of the

which Mr. Fearne affixes to them

must be allowed to deny that, the propriety
terms, are any way established by that

Case.

Lord Hardwicke thought the phrase Trust

in the sense

but

it

executed improper

but as

had creptinto usage

it

with the profession, and as

was only a quarrel

with the propriety of the name, and whether so

denominated or

not,

it

did

it

not affect

stance of any of the decisions.

once

used the term, not

He

the sub-

has more than

only in the Case of

Roberts and Dixwell, and Baskervillc and Baskcrville,

as

mentioned by Mr. Fearne, but

also

in

E x ell and Wallace which is not alluded toby

Mr. Fearne but in this latter case he pointedly
'

2 Ves. 223,

EQUITY JURISDICTION,

4(3*2

shews

continued distaste of the term, by the

his

marked

phrases,

what

*\

is

called,

a Trust exe-

iC

making it executed, as it is called,*' expressions which do very sufficiently testify his

cuted"

rooted dislike

the term,

to

Trust executed; a dislike

fore observed in

the denomination,

first

promulged, as be-

Hopkins and Hopkins,

(a

Case

to

which Mr. Fearne docs not allude,) and most

his solemn,

zealously adhered to in

Judgment

in

Bagshcuo and Spencer, a Case very

long subsequent to Roberts

kerville

and

deliberate

Baskerville, so

and Dixwell, and Bas*

much relied upon by

Mr. Fearne.
It was never doubted by Lord Hardwicke but
that there were some sort of Trusts so created,
that the

Court, following Precedents, would not

interfere

with them

in

discretionary manner,

by carrying them into execution, and

that there

were others, with which the Court would

interfere,

or carry into execution, according to the

rent intent of the Party

often acted

upon such a

disapproved of
it,

if it

it,

appa-

on the contrary, he has

distinction,

though he

and would not have adopted

had not been

fortified

with Decisions

but to say that the former sort of Trusts should be

denominated Trusts executed, and the

latter kind,

Trusts executory, seemed to him, giving improper

names

to

sion of Terms,

things,

Who

and engendering a confucan write more forcibly than

Mr. Fearne himself has written upon

No

this

head

complaining Logician has ever made a better

trusts.

remark.

l
-

4(53

confusion of Terms 'in any

tends to confound the science

itself,

which

is

the very

knowledge. " Nomina

among

its

ground-work of

all

perdas

si

act

by destroying

that precision of ideas, that distinction

objects,

sci<

ccrte

distinct io

According to Mr. Fcarnc, there

must be two sorts of Trusts executed Trusts
return perditur."

executed

at

Law by

Trusts executed

in

the

Statute of Uses, and

Chancery, which appears

be incurring that sort of censure

to

confusion

for

of terms which Air. Fcarnc has so well inveigh-

ed against

Can any

in others.

other instance be

given where Lawyers have applied the same term

to express

two very

different things

other science afford such an instance

Does any

The Cases of the Earl of Stamford v. Sir John

llobart, Fapi lion and Voice, and LordG'lenorchy and
Bosville, have before been referred to. The first and
last establish

which may

the position

already alluded

to,

and

be repeated, that there are some Trusts,

Conveyance

as for instance,

where

by the Will,

which the Court

in

is

directed

will interfere

and decree an execution of such Trust, according

to the intent

and meaning of

it

and that there

are other Trusts, such as where no

Conveyance

where the Trusts are fully limited

and declared by the Instrument creating the
Trust, in which the- Court will not interfere; but
does it follow from hence that the one ought
is

directed, but

properly to be termed Trusts executory, and the

See Collectanea Jund.

1 Vol.

p. 238,

EQUITY JURISDICTION.

464
other,

Trusts executed

for really, all the ques^*

Lord Hardwicke was,

tion with

as to the propriety

men-

lie did not say, the above

of the name.

tioned decisions were bad, but though not satisfactory, lie felt the necessity of abiding by them,

and uniformly acted upon them: he only objected

to the term Trust executed, used in the discussion
of those and other Cases, and which he considered

improper expression, because

as an

had been

it

previously appropriated.

In Exell and Wallace

Lord Hardtvicke
Spencer, "
laid

before adverted to,

says, in allusion to

Bagshaw and

did not there say no weight was to be

upon the distinction" (between Trusts exe-

cuted and executory

recently before me,
there was

;)

in

out of the case

it

it

my

have that deference for

to lay

if it

had come

should then have thought

weight

little

" but that

but that

should

predecessors, as not

not intending to say,

which my predecessors did, was wrong

founded, which I desire may be remembered."
that

all

Ought Mr. Fearne

to

have omitted

this

impor-

Im-

tant passage

Is

it

not destructive of his

putation

Does

it

not shew the consistency of

Lord Hardwicke

in his opinion,

and

his submis-

sion, reluctant, undoubtedly, to the authorities

Where then was

his Error

Inthis attempted vindicationof

Lord Hardwicke,

made from the plan prescribed

Author in this Work, of stating the Decibut
without commenting upon them

a deviation has been

by the
sions,

2 Ves. 323.

TRUSTS.
feeling an

4C)5

extreme veneration

Lord Hardwic/ce.

it

deavour to rescue

seemed

for the character

of dutv to

a sort

his judicial character

of
en-

from what

appeared to be an unwarranted imputation ofa

serious Error; and

way

in the
all

in

it

is

satisfactory to think, that

which the subject

is

now

considered,

the Decisions, instead of being jarrinp and dis-

sonant, are quite reconciled

or

if

Bags/taw and

Spencer must be considered as an exception, and

that the expressions

did not bring

it

Will

of the

in

that Case,

within the doctrine, as to execu-

tory Trusts, the Decision

anomalous Case/'

as

as "

must be viewed

Mr. Fearne terms

it,

an

or at

most, a wrong conclusion from right Principles

and that Lord Hardwicke improperly considered

it,

as a case falling within the rules applied to exe-

cutory Trusts

for that

he considered

executory Case, seems to be exceedingly

There

is

it

able as he was,

an

clear.

wise observation of Lord

which Mr. Fearne, most

as

Coke,

would

" Note, Readhave done well to remember.

" the office of an Interpreter is
er/' says he
;

to

make such

construction, not only that one

and the same author be not against himself, but

also that the Resolutions or
in

one book, be not by any

expounded

Judgments reported

literal

against any Resolution or

reported in any other, but that

may

stand together T ."

yor,

i,

interpretation

3 Rep.

S4\
if

Judgment

all si Jieri possit,

EQUITY JURISDICTION.

4(56

Under

this

Head

of Executory Trusts, Devises

Payment of Debts

for the

are classable

but as

such Devises are connected with the doctrine

specting the administration of Assets,

more conveniently considered,

it

re-

be

will

as a part of that

subject.

We

now treat of Implied Trusts under

which head may be classed, the doctrine as to 1.
shall

The Administration ofAssetts

and

Executors and Administrators

2.

if

Legacies

not

for

expressly

Trustees in regard to the payment of debts and

Legacies, and the other duties of their office, are

impliedly so in the construction

We shall

Equity.

afterwards consider,

species of implied Trusts

chases

made

in the

of a Court of

which

arise

3.

That

from pur-

name of a third Person; and

4.

Resulting Trusts.

The whole

Jurisdiction of Courts of Equity in

the Administration of Assets

principle, that

it

is

founded on the

the duty of the Court to en-

is

force the execution of Trusts, and that the

cutor or Administrator
his hands,

is

bound

who

Exe-

has the Property in

to apply that Property in the

payment of Debts and Legacies, and the remainder

according

to

the Will, or,

in case of Intestacy

according to the Statute of Distributions.

The

sole ground on which Courts of Equity proceed in

Cases of this kind,

a

Adair

Lefr.

202

is

the

Shaw, 1 Sch. and

and see 2 P. Wms.

v.
;

211, 101. Elliott v. Collier,

1 Ves. 10. S. C, 3 Atk. 527.

Execution of a Trust*,

Hovey v. Blakeman, 4 Ves.

007. Ripley v. Waterworth,
7 Ves. 452 ; and see 7 Ves, 197.

TRUSTS.
It isplain that

4(J7

Executorsor Administrators

not any legal or beneficial Interest

the Pel

in

Estate, but are vested only with a legal

over

it,

just as every Trustee has a legal

over his Trust Property

Power
Power

not pass under

Jt will

'.

general words in a grant of their Property';

not

liable for their

or Bankruptcy

'";

nor (unless under particular

cumstances) vests

Husband

in the

cutrix or Administratrix
their

Crimes

f
;

',

cir-

Feme Exe-

of a

nor

is it

any

legal or beneficial

If they had

fer

it is

debts either on an Execution

forfeitable

would have

Interest in the Personal Estate, they

a power of bequeathing

it

have not; nor does

go to their Executors or

Administrators
bonis non of the

The

it

by Will,

but to the

';

first

Testator

Admiu

de

doctrines as to the administration of Assets

are clearly settled

but as Lord Hardwicki even

his time observed, " points

are

but this they

numerous enough

with regard

." It

to

in

Assets

seems, however, that

the right of the Court to decree a distribution of

Assets was not fully settled

the Lord Keeper North,

Lord

Jeff'eries, in a

b
Duke of Rutland v.
Dutchess of Rutland, 2 P.
Wins. 211; and see Humphrey v. Bullen, I Atk. 458.
c
Lord Raym. 1307.
d
Fair and Newman, 4T. K.

621.

'1 Atk, 158.

f
Quick v. Staines,
and Pul. 293.

about the time of

who overruled

to a Bill for that purpose

sor,

till

Demurrer

as did also his Succes-

Case where
s
"

a Bill

was filed

Exec.
Lloyd v. Stoddart, Ambl.
Off.

152.
'

lb.

Smith

v.

Hoskins, 3 Atk.

387.
I

Howard

134.
1 Bos.

u u 2

v.

Howard,

Vera.

EQUITY JURISDICTION.

46S

by an Executor

against a Creditor to take an

count of Assets, and

ditors,

settle the priorities of

AcCre-

which was demurred to as multifarious

Demurrer was overruled, and the Bill not

but the

only held to be proper, but a safe

cutor to take"

became

From

frequent,

Account may

and

it

that

way

for

an Exe-

time such

has been held

Suits

that an

be decreed of an Intestate's personal

Estate, notwithstanding an

and a distribution decreed

Account

before taken,

in the Spiritual

After a Suit for an Account of Assets

Court".
institut-

is

ed against an Executor in a Court of Equity, he has

not been allowed payments voluntarily made with-

out Suit

and

it

has also been holden, that a Judg-

ment confessed by an Executor, pending a Bill

in Equity, shall not be allowed upon an Account
Certainly, debts paid by an Executor
of Assets p
.

or Administrator after a decree

not be allowed

q
,

though

in

to account, will

such case they are

permitted to stand in the place of the Creditors

so paid

r
.

If there be

two Creditors, and one

files

a Bill

before the other, and obtains a final Decree, and

a Report of the Master, and that Report has been

confirmed

and then the other brings a

obtains a final
ra

Buckle

v.

decree, and his

Atles,

2 Vern.

Axtell,

2 Vern.

37.
n

Bissell v.

and

Bill,

demand

is

con-

ford, Prec. Ch. 188. Joseph v.

Mott, Prec. Ch.79.
p

Surrey

v.

Smalley, 1 Vern,

47.

457; but see Goodfellow

Bright v. Woodward, 1
Vern. 360. S. P. 2 Ch. Cas.
201. Darston v, Earl of Ox-

Burchett, 2 Vern. 299.

* 10 Ves. 34.
'
Jones v, Juke6, 2 Ves.
518,

y.

jwu

TUUST9.
firmed, the Executor

the

first

must pay him

who used

first

diligence.

If a Decree be obtained
for the

4^v

on

a Creditor's Bill'

Administration of Assets, and some of the

Law, the Court will interpose, by

restrain them but until a Decree is

Creditors sue at

Injunction, to

obtained, no Injunction can issue

If before

Decree obtained, several Creditors proceed by

dif-

ferent Bills in Equity, for satisfaction of their de-

mands, the Court will not stop the Suits, because

may be

of the priority which

this creates an

the Estate

gained

although

intanglement and difficulty upon

but after a Decree obtained, an In-

junction would be granted, because the Executor

could not plead

When

Bond

it

at

Law*.

Creditor

files

a Bill on behalf of

own

himself and others, or for his

particular debt,

is, to direct an Account of

Bond Debts of the Testator or Intestate,
with liberty to come for a satisfaction and in

the course of the Court

all the

such Case, the Court

will not aftera

Decree

for a

suffer another Bond Creditor, who has obtained Judgment, to proceed against the Estate w .

Sale,

If the

Court on the

decrees a Sale,

in

of a

Bill

Bond

which the Heir

Creditor

another Bond Creditor brings an Action at

have satisfaction out of it, upon

Ashley

for

v.

which the Estate

Pocock, 3 Atk.

208.
1

213.

sold,

Martin

v.

213.

Martin

v.

Martin, 1 Ves.

" lb.

Law

to

his pleading riens

per descent, he will be charged with the

Money

and

joins,

214.

Sum

of

he having
Martin,

Ves.

EQUITY JURISDICTION.

470

joined in the Conveyance

mon Law Court

Sale of Equity

nor would the

take notice that

but upon a

it

Com-

was done by a

by the Heir

Bill

at

Law, he would have an Injunction*.

If Creditors omit to

compel a

in Trust of Lands, to

be allowed

been

a Bill against a Devisee

file

Sale, they will not

who

a fair purchaser

to disturb

in quiet possession, for a

has

length of time,

sixteen years, for instance, of the Trust Estate

The payment of debts is the leading duty of an

The order in which Assets are admiExecutor.
nistered,

and

question, what

the

is

good

legal

Law, the consideration

not within the plan of this Work. No

debt, are pure questions of

of which

is

question that can

arisf as to

such debts

nistration- of legal Assets is

of Equity, un*il

debt be good

it is first

at

doubt, the Bill

Law

determined

in a

admi-

Court

ascertained whether the

and

Law

onty necessary to

if

the Court has a

with liberty to the

retained

is

Plaintiff to proceed at
fore, it is

in the

7
:

on

this head, there-

make

a few observa-

tions.

An

Executor or Administrator may,

as against

Creditors of equal degree, retain out of the Assets,

adebt due

to himself,

for himself

a
.

And

and

alsc a

debt due

though the Administrator die

before he appropriates the Assets in the

Martin

v.

Elliott

v.

Martin,

Ves.

214.
y

Atk. 43.

S. C.

in Trust

Merriman,
Barn.78.
'

* Hartwell
Ves. 815.
a

Cockroft

Payment

v.

Hartwell,

v.

Black, 2 P.
Gore,
B.

Wms. 298. Weeks v.

3 P. Wms. 184. in note

u:

471

STt.

of his debt, yet his Executor is entitled 11 ; but an

Executor of an Executor cannot,

tain

It

seems.

it

seems doubtful, whether an Heirbeing

a Creditor by

Bond

Executor, retain

or

Judgment, may,

like an

Law,

It is observable, also, that at

if

a Creditor

appoints his Debtor, Executor, the Debt

ting iris

and cannol be revived''; but

the Exi cutor

a deficiency

oi

ets

f
,

considered as a Trustee in

respect of the Debt, and accountable tor

of the

Personal Estate

Testator's

entitled to retain

queaths away
gift

tC

his debt,
ai,

tiis

Equity,

and Legatees, on

as to Creditors

is

in

ex-

is

debts

';" for

as part

Nor

the

if
1

it,

is

he

Testator bethe

implied

by making the Debtor Executor, may be

controuled by an express bequest of the debt'.

In regard to the payment of debts, there

anomalous

Case

which may

founded on what has been

and

it is

this.

in bar of

first

an

mentioned,

called, a subtle Equity,

an Annuity be secured by Bond

Dower, the Widow

paid, in the

If

be

is

entitled

is

be

to

place, out of the Personal Estate,

3P. Wrns. 184. in note".

Vid. Hopton v. Dryden,

'

Phillips v. Phillips,

Yelv.

Prec.

2 Freein. 11 and
see Browne and Selwyn, For.

v.

242. S.

Ch. p. iSO. See Croft

Pyke, 3 P. Wins. 18J. where
point discussed but not decided.
d
Jolley
62.

v.

Gower, 2 Vern.

Hudson v. Hudson, 1
Atk. 461. Fox v. Fox, 1 Atk.
463. Wankford v. Wankford,
v.Phillips,

S. C.
('.

Fox

iMS.

Fox, 1 Atk. -Ifi:?.

Cary v. Goodinge, 3 Bro. C.
C. 110 ; and ;>ee Yin. Abr.
v.

vol. 8. p. 198.

1 Salk. 291)

"1G0.

but

see Phillips

2 Freein. 11.

Browne

r.

242. S. C. M. S.
'lb.

Selwyn, For.

EQUITY JURISDICTION.

472

and

come upon such

would have been Liable to Dower k

in aid of that is

Real Estate, as

Where

Mortgaged, for

is

Husband, she

after all

to

a Wife's -Estate

benefit of the

right,

entitled

the

has, if she survives, a

his debts are paid, to stand as a

Creditor against his Assets', (unless

at the

time

made on the
Wife ";) but evidence is admissible to shew that
The Title of the
the Wife intended otherwise.
Wife to be exonerated, is considered as precisely
of the

Mortgage a Settlement

is

the same with that of the Heir

of the Wife's

Estate

n
.

If the

Mortgage

not for the Husband's

is

due from the Wife duin sola ,

his Assets though he join in the Mortgage are not
And where the Wife has the absolute
liable?.
debts, or for debts

Money, and appropriates it to

Husband, the Husband's Assets are

disposal of the

the use of the

not liable

On
Life,

01

the same principle,

and

if a

Father, Tenant for

Money, which is
bound to exonerate

his Son, join in raising

received by the Father, he

is

the Son's Estate from the Incumbrance

Where Husband and Wife

* Tewv. Earl of Winterton,
1 Ves. jun. 451. 8. C. o Bro.
489.
'Tate v. \ustin, 1 P. Wins.
264. S. C. 2 Vera. 89. S. C.
on Appeal, 1 Bro. P. C. 1. see
Parteriche v. Powlet, 2 Atk.

CO,

384. a.id Inledon v. North3 Atk. 430. and Lewis

against Nangle, Ambl. 150.
m Lewis v. Wangle, Ambl.
150.
Clinton against Hooper,
cote,

live together, she is

3 Bro. C. C. 201. S. C. 1 Ves.

jun. 173.
"Lewis v. Nangle, Ambl. 150.
p Bagot v. Oughton,
1 P.
Wms. 347. S. C. Fortescue,
332. Mod. Cas. 249, 381 ; and
against Hooper,
see Clinton
3 Bro. C. C. 211. S. C. 1 Ves.
jun. 188.
q Clinton v. Hooper, 3 Bro.
Ch. Ca. 213.
r
Piers v. Piers, 1 Ves. 522.

TRUSTS.

473

not entitled to an Account of her separate Estate

against his Creditor and Assignee, nor against
his Representative

an) farther back than from the

death o the Husband*, unless

the arrears

With
such

are

promised

pay

to

reap< ct to Assets

and

personal,

lie

they arc

either real

or Equitable.

legal

as constitute the

Fund

or

Legal Assets

for the

payment

of debts according to their legal priority. E<j dtablt

Assets are such as can

of a C

~>u

among

!><

reached o

of Equity, and are

tne

.11

Creditors.

di

without

the

Aid

may be

which the Debtor

and which,

ould not have been subject to

generally

hands of an

his debts generally,

1 1<

his Act,

his debts

1 1

isibh ,pari passu,

Every thing

consi.-'ovta as equitable Assets,

has nadesubj*

v
.

Equitable

Assets in the

some

respects applied

xecutor are

as legal Assets are:

in

as, first to

pay debts and then

Legacies"; but they are different in

this,

that all

the Creditors take proportionably, and not in a

course of administration, as in the case of legal

And where a Testator lets in Creditors

charge, it is now settled, whatever doubts

Assets*.

by

may

formerly

have been entertained, that

Cre-

ditors are to be paid in preference to Legatees

See Smith

v.

Lord Camel-

ford "2 Ves. jun. 710. Dalbiac

and Dalbiac, 16 Ves. 126;

and see Parkes and White, 11
Ves. 225. and Squire against
Dean, 4 Bro. C. C. 320; but
see Parker v. Brookes, 9 Ves.
588.
1

Ridout

209.

v.

Lewis,

Atk.

y.

2 Fonbl. Eq. 398. in note,

Hixon v. Witham, 1 Vein,
482. Walker v. Meaner, 2 P.
Wms. 552. S. C. Mos. 204.
Maylin v. Hoper, Cas. Temp.
Hard*. 206. contra Gosling v.
Doraey, 1 Vera. 482.
* Solley v.Gower, 2 Vera. 62.
y
Kidnej v. Coussmaker, 12
K

Ves. 155.

EQUITY JURISDICTION.

4?i

The

ordinary Administration of real

sonal Assets, in the

payment of

and per-

specialty debts,

the following order.

is in

Personal Estate, not specifically bequeathed

1.

or exempted expressly, or by
from the payment of debts.

Land

2.

express!//

plain indication

devised

for

7
,

not merely

charged with) the payment of debts \

Descended Estates

3.

b
.

Lands charged with the payment of debts c

The same administration of the assets is made
in the payment of simple contract debts, except
4.

that, as to

them, descended Estates are not

liable,

unless in those cases where the deceased Debtor

was a Trader according to the acceptation of that

word in the Bankrupt Laws d
.

The personal

Estate,

is

the fund

the payment of debts, and

natural fund
Creditors,

;"

is

first

" the

nor can a Testator, as against his

exempt the personal Estate

Testator may,

liable to

often called,

if

but the

he pleases, give his personal Es-

any other Represene

but in
of the payment of his debts

tate as against his Heir, or

tative, clear

order so to exonerate the personal Estate from the

payment of debts, the Will must contain express

a
Samwell and Wake, 1 Bro.
C. C. 145. 1 Bro. C. C. 58.
Davis v. Topp, 1 Bro. C. C.
526. S. C. 2 Bro. C. C. 259 in
note and see 1 Bro. C. C. 58.
a
1 Bro. C. C. 528.
;

"

lb.

Vid. Harmood v.Oglander,

8 Ves. 124, 5 and see Davis
and Jopp, 1 Bro. 524. Donne
;

against Lewis, 2 Bro. C. C.

203. Manning and Spooner,
3 Ves. 117. Milner v. Slater,
8 Ves. 306.
d
See Stat. 13 Eliz. c. 7.
1 Jac. 1. c. 15. s. 17.
s. 11
v
Walker v. Jackson, 2 Atk.

Bridgman and Dove,

3 Atk. 202. Attorney Gen. and
Downing, Ambl. 572, 3.
624.

words

purpose, or,

for that

mented')

plain, or necessary

words

press

doctrine

(a

manifested intent*;

a plain

RUSTS.
la-

a declaration

tantamount

inference,

It

'.

much
to

ex-

impossible to express in

is

what circumstances will be sufficient

shew tins intention; it must arise from the con-

definition,
to

text of the Will

in the

but

mode

may be

It

'.

not merely

found,

which the personal Estate

in

mode

also in the

in

which the

for the real Estate

priated to the

may

payment of the debt,

clear intention that

it

Estate

pressed

mere

it

from the payment of debts

SeeFerreges

gift

m
,

as,

where there

v.

Robinson,

Ayliftev. Murray, 2 Atk.

The first case proceed in;;
on this principle-seems to have
been Stapletou v. Colvilte, For.
202. S. C. MS,
h
Milles v. Slater, 8 Ves.

and see also Brydges vi

Phillips, 6 Ves. 507. Read v.
Litchfield, 3 Ves. 475. Brum;

incll v.

Prothero,

Burton

v.

3 Ves. 111.

Knowlton, ib. 109.

Lord Rous, 18 Ves.

',

unless

a gift to

is

and though a Will

";

132. Lord Inchiquia against

French, Ambl. 37.
Ancaster against Mayer,
1 Bro. C. C. 4U0, 462. Tait v.
Lord Northwick, 4 Ves. 823.
k

CO.

v.

to exonerate

of the Personal Estate, does not

gift

Bunb. 301. Ancaster against

Mayer, 1 Bro. C. C. 462. Hancox v. Abbey, 11 Ves. 186.

Tower

upon

any other way ex-

not in

a Wife of her Paraphernalia

305

be a specific

shew

exonerate
it

be so appro-

shall not be a burthen

is

is

payment

as to

any other Fund, though an intention

the personal

given,

real Estate

given, or the application directed to the

of that debt

is

'

11 Ves. 180.

Brummell

Prothero,

v.

3 Ves. 111. Phillips v. Phillips,

2 Bro.
m

<J.

C. 273.

Walker

2 Atk.

(.24.

S.

and
C.

Jackson,

Wils.24;

and see Bunb. 302. Ex parte

Dennison, 3 Ves. 552.
n
Boynton v. Packhurst,
1

Bro.

(J.

C. 570.

EQUITY JURISDICTION.

470

shew

a clear intent in favor of a Legatee to exo-

payment of a

nerate the personal Estate from the

by the death of the Legatee

the next of kin cannot insist on the exo-

particular debt, yet, if

it

lapses,

neration, but

devolves in the ordinary

it

The mere nomination

way

though

of an Executor,

under circumstances that would give to him beEstate, and not leave

neficially the personal

distributable to

the next of kin,

an individual

debts,

it

for the

pay-

for,

as

it is

such a devise shews nothing more than

intention that

the real

to

however anxiously provided, does

not exonerate the personal Estate

said,

of

gift

Devise of real Estate to be sold

ment of

have

will not

the same effect, as a distinct specific

it

all

an

the debts shall be paid, and that

that

Estate, if

necessary,

is

applied; but a direction

to

shall

be

apply a particular

portion of the real Estate for the payment of one

particular debt, will,

it

seems, exonerate the per-

sonal Estate as to that debt

But though

a Will

vour of a Legatee

shew

r
.

a clear intent in fa-

to exonerate the personal Estate

from the Payment of a particular debt, and by the

Hale

v.

Cox, 3

13ro.

C. C.

324.
p
Grey v. Minnethorpe,
3Ves. 100. Stapilton v. Colville, For. 202. S. C. MS.
q Tait v.
Lord Northwick,
4 Ves. 810. Dolman and Weston, 1 Dick. 20. S. C. 2 Vera.
740. Prec. Ch. 456. contra

Adams

v. Merrick, Eq. Ca.

Abr. 271. Bicknell v. Page,
2 Atk. 78.
r
Hancox v. Abbey, 11 Ves.
186: and see Spnrway v.
Glynne, 9 Ves.483. and Manghan v. Masson, 1 Ves. and Bca.

418.

tiil

477

death of the Legatee, the Legacy lapses, the next

of kin cannot insist on the Exoneration,
a
devolves in the ordinary way

but

it

who

is

Where

Mortgage

a person

Estate, and the Mortgagor covenants

owner of the
pay and

to

made by

is

dies,

though, as to the Mortgagee,

Land may be looked upon

the

on which he

relies,

as

the Security

yet the Mortgage

is

consider-

ed as a general debt, and the Land only as a Se-

and the personal Estate

curity,

is

applicable in

its

though there may be younger Children of the Mortgagor who may be no

discharge

and

this,

otherwise provided for

applied

in

also,

The

favour of

same Rule

is

the Devisee of the

would be otherwise,
if any Creditors of the Testator would lose their
debts by the Mortgage being paid out of the

Estate* and of an Heir; but

1

it

persona] Assets'.

Heir

If the

tells

Executor

the

Legacies, and that he will not press

to

him

pay

the

for the

exoneration of his Estate, and the Executor pays

upon

that assurance,

called

upon

the

afterwards, or

Executor cannot be
the Legatees be ob-

liged to refund'.

If a

man

purchases an Estate, subject to a

charge, and does no

1

Hale

v.

more than covenant with

Cox, 3 Bro. C. C.

v.

Lancaster ,2 Vern.183.

but see Lord Hardwicke

remarks on that case, 2 Atk.
487. and see Forrester against
Lord Leigh, Ambl. 173.
2 Atk. 4b7.
f
Seal against Buownton, 3
:)

Evelyn

Evelyn, 2 P.

v.

Wms.

G65. Lanoy v. Duke

and Duchess of Athol, 2 Atk.

455. Robinson
252.
c

Lovel

-324.

v.

Bartholomew

Ge, 1 Ve.
v.

May,

Atk. 487.
* See contra as to Deyiiee

Bro. C. C.
an. 185,

214. S. C. 1

Vw.

47S

EQUITY JURISDICTION.

the Vendor,

that

he

own

does not become his

personal

his

be indemnified,

shall

to be paid out of

debt,

Estate, but

remains a

it

it

charge

upon the Estate, or rather a debt of his in respect

of the Estate only

been done to take

it

and

if

upon

nothing more has

himself, the debt

must

be paid out of that Estate, and not out of his personal Estate

5.

So, if an Estate descends

to one, subject to a

Mortgage, although the Mortgage be afterwards

assigned, and

Covenant

enter into a
ed,

the Party to

will not bind

it

to

his

whom

it

descended,

pay the money borrow-

personal Estate

The

Covenant will be considered only as a Security \

But the Party may by his acts make it a debt
of his own, if from such acts it can be necessarily
inferred, that he meant to make it a debt of his

own k

if

the charge

is

part [of the price, in

case the personal Estate

liable

is

Suppose, a man makes a

ing both hjs

Contract,

real and personal Estate,

a general obligation, and part or the

his

real

as a specific

Heir

at

Law, and

Executor

his

way

of

Son

as

the personal Estate goes to the

and the question

* Butler v. Butler,
5 Ves.
538. Tweddell v. Tweddell, 2
Bro. C. C. 101. 152. Woods v.
Huntingford, 3 Ves. 131. Parsons v. Freeman, Amb. 115.
Forrester against Lord Leigh,
Ambl. 173. and see Earl of Oxford v. Lady Rodnev, 14 Yes,
'
417.
I

whole of

pledge by

Mortgage; the Estate descends upon

pledg-

the latter

by

Estate,

such

is,

who

pays the

Earl of Tankerville against

Fawcet, 2 Bro. C. C. 58.

Evelyn v. Evelyn, 2 P.
Wrns. p. CG4.
k
Woods v. Huntingford,

3 Ves. 128.
J

cr,

Billinghurst against Walk-*

2 Bro, 008,

TRUSTS.

debt

was

It

479

mixed debt of

the Father, but

the Son's onlv as owner of the collateral Pledge:

and he has aright

Therefore,

done no act

is

to adopt the debt,

personal debt,

his

it

person succeeding to an Estate of

if a

that kind has

make

upon the personal Estate.

to call

not liable; but

if

by his

his

personal

acts he has put himself

so far in the place of his Ancestor, as to

debt his own, that

as if he

was the

is

original

vious

for his

therefore,

Mortgagor

it

the

but the Court

make

that in-

perfectly clear and ob-

it is

though the Mortgagee pressing

money, the Heir

transfer of the

take

where

make

understood to be the same,

has been extremely anxious not to

ference, unless

and

Estate

is

Mortgage, and

obliged to
as

have a

no Assignee will

without some personal Covenant, upon

that transaction, he executes a

Mortgagee,

if

he does

Bond

to the

new

only for that purpose, not

it

make himself more liable, it has been

determined not to make it the personal debt of
the Party, whose original debt it was not.

meaning

to

If a Person

who

a personal debt

not have

Where

is

master of both funds charges

on the

real Estate, his

exonerated by the personal Estate

it

the benefit of the Heir,

Debt

n
.

Equity of Redemption

a Purchaser of an

dies, the personal Estate

tor's

Heir shall

will not be applied for

it

not being the Ances-

Wood v. Httntingford, 3
Ves. 181. and see Billinghurst
against Walker, 2 Bro. C. C.
008.

n
Hamilton against Worlev,
4 Bro. C. C. ]!>'J.
Pockley v. Pocklev, 1

Vein. 36, Tweddell v. Tweddell, 2 Jiro. C. C\ 307. 154.

EQUITY JURISDICTION.

480

Redemption

If an Equity of

time, the Mortgagee

of the Land, and

is

considered as possessed

passes as such.

it

Before the Statute of 3

the Heir

by lapse of

is lost

&

4 Win.

& M.

c.

14.

was not bound by Lands descending

to

him, where sold or aliened before Action brought;

and

if

an obligor devised his Land, the Devisee so

selling

was not

tute, therefore,

the statute

liable

to the obligee

was passed

and render the Heir

.

that

it

sta-

remedy the defect

to

in

Con-

to fraudulent Devises

b
,

value of assets

liable for the

Since this Statute, therefore, a Rever-

coming

sion in Fee,
as

13 Eliz. cap. 5.) of fraudulent

veyances, and to extend

aliened

11

into the Possession of a Son,

Heir to his Father,

who

died indebted by spe-

payment of such debts,

though it be devised by the Son d
So, if there be a Son and Daughter by one
Venter, and a Son by the second Venter, and the
Father dies indebted, and the Son by the first
Venter enters and is seized, and dies, the Daughcialty, is assets for the

ter is entitled

by way of

liable to her Father's debts

By
& M.

possessio fratris,

14.)

where there

is

pointment by Will, of Lands,

or Children's

Fremoult

v.

Portions,

Dedire,

IP.

Wms.

431.
b
Kinaston
204.

Clark, 2 Atk.

&

W.

any devise or ap-

for

payment of debts

according to an Agree-

See

Coleman and Winch,

IP. Wms.
v.

is

the express words of the statute (3

c.

and

277.

Kinaston

204.

lb. 205.

v.

Clarke,

2 Atk.

481

TJIUSTS.

ment

other than the

before Marriage,

Law, such Will

shall

Heir

at

And though

be of force.

the Statute prevents a devise for payment of Legacies^ so as to disappoint Creditors

does not prevent a devise

it

generally

to let

is,

though the

for

such a

simple

must come
rata\

for

in

with

there

is

lien

the other

no

relief

devise,

contract, to

the prejudice of Creditors by specialty

such cases, having no specific

specialty,

payment of debts

effect of

Creditors by

in

by

11

who,

on the Laud

in
1

Creditors pro

but in a Court of

Equity, as they could have no action against the

Heir, or against the Heir and Devisee jointly \

devise for payment of debts takes the case

entirely

out of the Statute 1 and

,

it

stands,

as

it

would have done, before the Statute was made;

and the Creditor can claim only under the Will.
therefore, an Estate be devised to Trustees, in

If,

Trust, out of the yearly Profits, to pay debts, &c.

the Creditors cannot obtain a decree for a Sale of
the Estate"1 , though had there been no devise for

payment

of debts, the specialty

Creditor would

(under the Statute) have had a right to have his

but though a bequest by
v
Will or a charge in Law or Equity for payment

debt raised by sale;

,

See Freemoult v. Dedire,

Wms. 4:30. 3 Atk. <i:j0.
Kidney v. Coussmaker, 12 Yes.

1 P.

164.

"Deacon

v.

Smith,

3 Atk.

326.
r

Hearnes

v,

Banee, 3 Atk.

CGO.

VOL.

I.

I I

2 Ves. 500. and see How

Chapman, 4 Ves. 550.
3 Woo. and Mary, c. 14.
u
Lmgard against Darin-, I

arid
'

Bro. C. C. 312.
*
Harerave v.Tindal, 1 Bro.
C. C. 135. Batsonr. Lingreen,
2 Bro. C. C. 04. Bailey v. Eikins, 7 Ves. 222,3.

EQUITY JURISDICTION.

452

of Creditors,

not

is

fraudulent within

tute of Fraudulent Devises

yet

the Sta-

a devise for

if

the payment of debts be in a manner which will

not answer

such Devise does not

the purpose,

take the case out of the Statute

Where

upon the

a Will creates a charge

payment of

for the

debts,

realty

time

relates to the

it

of the death of the Testator, and

debts he

all

contracts during his whole Life will be a charge

And

if

owing simple contract debts,

a person

barred by the Statute of Limitations, devises his

Lands
it

in

Trust to

pay his debts

the debt

is,

7
seems, according to several decisions, revived ;

but the reason of

there

is

this is not

and
Di-

easily seen,

a recent decision to the contrary

a
.

recting an Estate to be sold, does not imply that

it

must be sold

without

satisfied

And

at all events,

if

Heirs to

Land
sell,

if

is

devised to Trustees and

Money

and out of the

the Sale to pay Legacies, and

Legacy to the Heir

not be

the debts can be

at

Law

among

w Bayley v. Elkins, 7 Ves.

323. Hughes against Doulben,
2 Bro. C. C. 614. Lingard v.
Earl of Derby, 1 Bro. C. C.
311.
x
Hughes against Dolben,
2 Bro. C. C. 024. but see
Willes's Reports, p. 524.
y Brudenel v. Boughton, 2
Atk. 273. Bridman v. Dore,
3 Atk. 201.

what

'

arising

by

the rest, a

yet the Land will

Estate, nor

turned into personal

directed to be sold than

their

is

more

necessary for the

Gofton

v.

Mill,

Ch. 9.

2 Vern.
Lex

141.

Pre.

Prset.

MS. Blakeway v. Straf2 P. Wins. 373. S. C. Se-

ford,

Gilb.

lect Cas. 57. Jones v. Earl

Strafford,

of

3 P. Wms. 84.

a
Executors of Fergus v.
Gore, 1 Sch. and Lefr. 109.
and see note b .
b

42.

Elliot v.

Merryman,2 Atk.

TRUSTS.

4S3

payment of the Legacies, and the Heir has the

Surplus"; nor is there any case in which it lms
been held that the Surplus,

purpose

the

after

particular

answered, forms part of the personal

is

Estate, so as to pass

by a residuary bequest*

1
.

Cases on Wills are very numerous, upon

the

amount to a
charge of the debts upon the real Estate. The Court
is always anxious on these occasions to make a
man do that which is morally just', and hinder
him from sinning in his grave; and iu one
question, whether the terms used,

case the Court has even said, that

tor talks

been construed,

for

f
;

and a Will has

the benefit of Creditors to

men-

Estate, (though not expressly

real

by implication on general words, but

tioned)

that implication
If,

the Testa-

about debts in the beginning of his Will,

the real Estate must be charged

charge

if

may be

afterwards destroyed

therefore, a Testator says, "

legacies being
tate real

and

devise to

first

my

deducted, I devise

sell for

payment of debts

all

my

Expences might be paid

is

to a

andsatisfied

Executors," and the real Estate

vised, these

Es-

ll

If the Will directs merely that" allhis debts

funeral

debts and

amounts

personal to I. S." this

by

and
his

specifically de-

words will not charge the

real Estate

'.

Ves. and Bea. 410.

e
3 Ves. 551. 5 Ves. 301.
and 2 Ves. 312.
Williams v. Chitty, 3 Ves.

Newman v. Johnson, 1
Vern. 45.
Powell v. Robins, 7 Ves.
209. Badges v. Landen, cited
-i
Ves. 550. Keeling v. Brown,
5 Ves 359. and see a case of
this nature Davis and Gardi-

552.

ner,

c
Randall
Vern. 425.

Bookey,

v.

Manghan

v.

Masson,

2
1

'

Thomas

v.

''

'

Biitwell,2 Ves.

313.
I I

P.

Wms.

187.

EQUITY JURISDICTION.

484
So,

where

a Testator directed his Trustees

possess themselves

and

of his Estate and Substance,

pay Debts, this was held to be a eharge of

to

the debts upon the real Estate

And

seems, that wherever a Testator says,

it

" he wills, that his debts shall be

ride over every disposition,

Heir

to

at

Law,

or Devisee

paid,'' that will

either as against his

By

a devise, therefore, " after payment of hisdebts," the debts are changed m ; and if there be a

charge of

all

the Testator's Estates for

of debts, and a particular Estate

is

payment

devised to A.

the Devisee takes, subject to the debts".

general charge upon

Land

for

payment of

where the Testator has Freehold and Copyhold, renders the Copyhold liable, as well as the
debts,

Freehold

If there be a general charge of

for the

payment

Lands by Will,

of debts, and a devise afterwards

of a particular Estate for that purpose,

it

will not

restrain the general charge, unless there be express

negative words

If there be a devise of

Lands

to

debts paid, remainder to Testator's

Executors

Son

till

in Tail,

and the Son dies before the debts are paid, the
Estate of the Executors

k
Foster v. Cooke, 6 Ves.
347.
Shalcross v, Finden, 3 Ves.
739.
m lb. 738.
1

100.

Clarke

v.

Sewell, 3 Atk.

is

only a chattel Interest,

Coombes against Gibson,

Bro. C. C. 273. Kentish
against Kentish, 3 Bro. C. C.

257.
p Ellison v.
Airey, 2 Ves.
568. Lord Warrington v. Booih;
1 Bro. F. C. 455>

TRUSTS.

485

and

will not binder the Son's

the

Dower

will not

Wife of dower

commence

damages be recoverable

but

in possession,

nor

for detaining

the time of the debts being paid

Where sums are by

by the Rents and

but from

it,

b
.

Will directed to be raised,

Profits of an Estate, within a

particular time, within which, the Estate

would

not answer the charge, the Court has directed a

Court proceeded

Sale: afterwards, the

and directed
c

alone

a Sale

though

on the words Rents and Profits

this

Testator's intention

and

is
;

seldom agreeable

Profits, in a Will,

mean

Land

for

payment of debts,

and
was

e
;

payment of the

for

by Mort-

for that

purpose,

and so where there

power of making Leases

Money

If,

only the words Rents

if

Profits had been used

a

itself

Profits, or

gaging, the Land cannot be sold

might have been,

the

by perception of Rents and

it

to the

on the ground, that Rents

however, a Trust be created

as

farther,

still

order to raise

in

debts,

it

was held there

could not be a Sale, because such a power would

be frivolous,

Sale was intended

if a

this kind, a private

times resorted to
b

1 C. C. 176.

Baines v. Dixon,

In cases of

some-

is

e.

Hitchens
v.
Bitcbens,
404.
Berry v. Askham, 2 Vera.

and see

Act of Parliament

2 Vein.
26.

Ves. 41;
Belcher,

and see Green v.

1 Atk.506.
e
Vid. Ridout v. Earl of Plymouth, 2 Atk. 104. Lingard

v. Earl of Derby,
311.
'

Iw v.

Gilbert,

Bro. C. C.

Wms.

2 P.

Baines and Dixon,

13.

Ves.

42.
g

See the recommendation in

v. Plymouth, 2 Atk.

Ridout
105.

EQUITY JURISDICTION.

4S(5

Where Lands

are devised to Trustees

Money for several

Money out of the

purposes, and they raise the

Profits, the

Land

If a Real

must

re-

11

Estate be once charged by a Will

duly executed, with the payment of

all

Debts',

and Annuities, and not merely particuLegacies as " Legacies above mentioned m ,"

Legacies

lar

or " hereby given"," the Testator

give either

The

and

is

rule

so

is

afterwards

(Annuities

% unless the Testator

himself distinguishes them'

dicil.

may

Legacies or Annuities,

are held to be Legacies

by an unattested co-

many

settled in

too well established to be disturbed

has been doubted whether

it

thereby

is

discharged, and the Persons interested

sort to the Trustees

to raise

sistent

the Testator disposes of his

tested codicil,

when he

with Legacies so given

for,

and

though

in effect,

Land by an unat-

at liberty to

is

perfectly con-

it is

with the Statute of Frauds

cases

it is

burthen

it

observable that,

these have been cases, not of a primary charge,

all

but auxiliarly, and in aid of the personal Estate,

h
1

Prec. Ch. 144.

See Cox v. Bassett, 3 Ves.

1G3.
k

Brudenel

v.

Boughton,

2 Atk. 274. Buckeridge

Ingram, 2 Ves. Jun. GG5.
See 2 Ves. Jun. 6G5.

v.

m Masters

Wms.
"

v.

Masters, 1 P.

423.

Bonner

v. Bonner, 13 Ve6.
379.
See Duke of
Bolton v.
Williams, mentioned in Ha'

bergham

v.

Vincent, 2 Ves.
v. Perry,

Jun. 231 . Sibley

7 Ves, 534.

p As in Nannock v. Horton,
7 Ves. 391.
* Hyde v. Hyde, Eq. Ca.

Abr. 409. Lord Inchiquinand

O'Brien, Ambl. 33. Masters
and Masters, 1 P. Wms. 423.
Jackson and Jackson, in n. 3
to 1 P. Wms. 423. Hannis v.
Packer, Ambl. 556. Brudenell
v.

Boughton, 2 Atk. 2G8. Ha*

4S7

TRUSTS.

which

is

the primary fund

of a Real

But Legacies out

by an unattested paper

Estate given

cannot stand, unless that paper

to

is

by a Will duly executed, so

rated

with

does

not say

it

and

'

that

if

clearly referred

as to be incorpo-

a Testator

and

annuities

all

by

his Will

Lega-

all

cies he shall hereafter give shall be charges,

only, that,

if at

some future period he

shall

but

think

proper to declare Legacies and Annuities to be

charges upon the Real Estate, then the Trustees
shall

pay them out of the Real Estate,

Law

will not allow

it

will not allow a

this

the

Person by

Will duly executed, to reserve a power to charge

by

a Will not duly

If a Testator

executed

s
.

He charges

sa ys

all

the Legacies

given by his Wili upon his Real Estate, and gives

i20 to A., he
that

Legacy of

cannot create
or alter any

may by

an unattested codicil give

20

B.

to

Person in such case

new Legacies; but he may modify

before given

he cannot give fresh

Legacies upon Land, unless future Legacies are

charged; but he

may

In several cases,

bergham

substitute one for another

it

was holden

Vincent, 1 Ves.
Leacroft against
MayHard, 3 Bro. C. C. 233.
S. C. 1 Ves. Jun. 279. Reay

Jun.

v.

411.

Hopper, decided by Lord

Kenyon, and mentioned in
v.

Habergham

v. Vincent, 2 Ves.
231. Com v.
Ba^sett,
3 Ves. 103,4. Attorney Sen".
and Ward, 3 Ves, 827. Rose v.

Jiin.

Cunynghame, 12
Bonner

v,

V es.

37. etc.

Bonner, 13 Ye*. 383.

that,

Habergham

v.

upon a
Vincent,

4 Bro. C. C. 3S9. Hooper and

Goodwin, 18 Ves. lo7.
r
Smart v. Prujean, 6 V c s.
500.
* Vid. Rose v. Cunyn^haine,
12 Ves. 29 and see !' ibergham v. Vincent. 2 Ves. Jun,
236. and
Bro.
C. 370,1.
*
Attorney Oen. v. WurJ,
3 Yea. 33i.
;

'

EQUITY JURISDICTION.

48S

payment of

devise for

debts,

simple

Creditors were entitled to interest

Hardwicke decided

now

to the contrary

v
,

contract

but Lord

and such

is

the established Rule of the Court*.

Creditors are paid

according to the

Interest

nature of their debts.

Simple contract creditors

allowed them, and

this,

Real Estate, be created

no Interest

have

though a Trust out of

payment of debts

for the

and Legacies y , and even of the Interest

of the personal

in aid

Account be

If an

of debts

Estate.

stated

by the

Parties,

it

car-

b
but the
Interest from the time of stating

ries

balance of a mutual account does not carry Interest

and

c
:

no Interest
firmed'

if

an account

until the

is

decreed,

it

Master's Report

carries

con-

is

Debt consisting of Principal and Interest

computed on a Master's Report, afterwards confirmed, has the effect of a Judgment at Law.
Debts carrying Interest in their own nature,
have Interest calculated upon them in the Masbut Debts not carrying Interest have
ter's office
;

not-;

and when subsequent Interest

P. Wins. 229, 334. and

2 P. Wras. 25.
'*2 Atk. 109. 2 Ves. 3G4,
u

5S7.
*

Chapman

Harwell

3(14.

Lloyd

v.

Ansell,

MS.

Parker, 2 Ves.
Williams, 2 Atk.

v.

v.

1P8.
\"* Tait

v.

4 Ves. 8l6."

Lord Norihwick,

is

2 Ves, 3C5.

Borret

v.

calculated,

Goodere,

Diet.

428.
d
Vid. 2 Eq. Abr. p. 8, in
marg. Earl of Bath v. Earl of
Bradford, 2 Ves. 588. overruling Maxwell v. Weltenhal,
2 P. Wnis. 20.

TRUSTS.

4S9

only upon the Debts

upon which Interest

had been calculated before the Report, and no
Interest is given upon the Debts, which upon
the Report do not carry Interest
This has the
it is

appearance of hardship, but the policy of the

doctrine seems to be, to prevent those,

be most active

to

becoming
Interest

in

who ought

prosecuting a decree, from

negligent, in expectation of Interest

is

f
.

not given from the confirmation of

the Report upon

demands liquidated by

but

it,

not bearing Interest in their nature, as Legacies

and

arrears of Annuities*

seems, the

but on further direc-

Court sometimes gives In-

tions,

it

terest

on demands not carrying Interest

nature

as

in their

where Interest was not given by the

which made it

decree, because the circumstances

proper, could not appear

till

Report

the

',

or

where there has been gross and wilful misconduct

subsequent to a decree or order

for

payment, by

delay in the execution of it'; hut the single cir-

cumstance that the demand is liquidated by the

Report, or any delay that might have been prevented by the diligence of the Party claiming
e

against Lowth,
C. C. 316. overruling a
contrary doctrine determined
insamecase, 4 Bro. C. C. 157.
S. C. better reported 2 Ves.Jun.
157. and see 1 Bro. C. C. 43.
f
See what is said in Anderson v. Dwyer, 1 Sch. and Lefr.

Creuze

4 Bro.

301.
* Creuze v. Hunter, 2 Ves.
Jun. 157. Sed Vid. as to an-

unities, the

Drapers

Company

Davis, 2 Atk. 211 ; and Ferrers v. Ferrers, For. p. 2.

v.

See Margerum and Sandimentioned 2 Ves. Jun.

ford,

1G2.

See Bickham v. Cross, 2

Ves. 471 and see Sammes v.
Rickman, 2 Ves. Jun. 30; and
see Tew v. Lord Winterton,
1 Vea. Jun, 452.
'

EQUITY JURISDICTION.

-iyO

Interest, or
or'

which

is

the nature of the

dered as a

As

Jurisdiction,

ground

sufficient

Party with Interest

the necessary consequence

is

not consi-

to charge the other

14

simple Contract debts do not carry Interest,

so neither do arrears of a Jointure, nor the arrears of an annuity or Rent-charge

the

sum

is

certain and fixed

',

unless where

and there

is

either

some penalty upon the

Grantor, and Creditors will not, by such allow-

a clause of re-entry, or

ance, lose their debts

n
.

is not, in general, given

But though
upon the arrears of a Jointure , it has been

Interest

given to a Jointress, where there has been a long

and

obstinate delay of payment, and frequent

demands of the Money p

who had been

Bail in Error,

obliged

to

Bond on which an Action was brought

pay a

against

the deceased, and costs, are not to be considered

as specialty Creditors, but only as simple contract Creditors

The Master

in

computing Interest on a Bond,

not to go beyond the penalty", except under

is

k
See Mr, Vesey's note to
Creuze and Hunter, 2 Ves.

Jun. 109.
Vid. eases cited in Creuze
and Lowth, 4 Bro. C. C. 318 ;
and see Countess of Ferrers v.
Earl Ferrers, For. 3. and Anderson v. Dwyer, 1 Sch. and
Lefr. 301.
ra
For.3.
n
Morris v. Dillingham, 2
1

Anon. C62.

Stapleton v.
Ves. 428.
q

Goodman

Conway,
v.

Purcell,

2 Anst. 548.
r
Tew v. Earl of Winterton,
3 Bro. 489. and S. C. 1 Ves.
Jun. 451. Knight and Maclein,
3 Bro. 490. Mackworth v. Thomas, 5 Ves. 331. Clarke v.
Lord Abingdon, 17 Ves. 100,

TRUSTS.
special circumstances

-)u\

and

where there

so,

Bond and Judgment assigned,

Interest

is

calcu-

is

lated to the date of the Report, but not so as to

exceed

the

penalty*.

was a Bond, and

ditional Security,

also a
if

Where, however, there

Mortgage by way of ad-

the Creditor resorts only to the

Bond, he will not be allowed Interest, beyond the

amount of the penalty of

the Bond"; but

claims in respect of his Mortgage, he

Debt and whatever

to his

crued

Interest

bar of

is

not allowed on the arrears of an

Dower w

Interest

is

it

was given

allowed on a written agreement to

x
,

and also on

their nature carry Interest, as

certain^ or

all

debts that in

notes payable at a

on demand, and demand made y

not allowed upon notes payable at a day

it is

uncertain, or

upon shop

debts'; but the

in the administration of assets follows

if

in

pay by instalments

and

ac-

Interest

but

entitled

may have

annuity secured by Bond, though

day

is

he

if

Interest

would be given

at

the

Law

Court

Law

in the

shape of damages, the party claiming against the

assets in

Equity,

is

would have recovered

See Clarke

allowed
at

Seton, G Vts.

411.

v.

Lord Winterton,
C. 3 Bro. C. C.

1 Ves. 451. S.

489,

sum which

he

Law*.
x

Parker

v.

Hutchinson,

Ves. 133.

1
Sharpe v. Earl Scarborough, 3 Ves. 557.
u
Clarke v. Lord Abingdon,
17 Ves. 106.

Mb.
Tew

the

Upton

v.

Lord Ferrers, 5

Ves. 801; and see Lowndes v.

Collins, 17 Ves. '27.
Parket v. Hutchinson, 3
Ves. 135.
* SeeDornford
12 Ves. 129.

v.

Dornfoid,

EQUITY JURISDICTION.

492
Interest
assets,

quando acrid erint

Where
tates,

allowed on a Judgment, on

not

is

a person, seized

of three or four Es-

devises one Estate for the particular pur*

pose of paying his debts, that

the other Estates, though
after the devise

is

applied, and not

they descend

but

if

by a Testator, of the whole of

his Estate at the time of the devise, subject to a

general charge (not to a particular charge,

which

would make a difference) for the Payment of

debts, and he becomes possessed by devise, or purchase of another Estate, which descends, such Estate is applicable to the payment of debts, before
the Estate so generally charged with the payment
of the debts

for

when

a general charge

is

made,

applicable to the whole Estate of the Testator

no intention appears that the Estate

is so charged with a view to exonerate future
property but where a Testator charges part of
at the time,

his Estate, leaving other

part

to

descend, his

inclination, to burthen a part, in exoneration of

the rest,

is

manifest 1 .

Where Lands

devised are ordered to be sold for

the payment of Debts, and the Devisee is an Infant.

the Estate cannot be sold, until he comes of age.

In the mean time,

clare, that the

all

the Court does,

is

to de-

simple contract Creditors are enti-

tled to stand in the place of the specialty Creditors,

with

liberty

Deschamps

2Ves.716.

v.

to apply

Vanneck,

when

Davis

C.C. 528.

v.

the Infant

Toppe,

Bro,

TRUSTS.

comes of age
debts
It

403

have the Estate sold to pay their

to

'.

was formerly held

where Trustees

that

devise for the payment of debts,

Executors,

considered

Law

at

and the

Law

Devise of the Lands was

Court

Decisions

to the

which

in

case, the

be

equita-

because, as the Lands must go in a

Executor

Case, in which

all

Trustee, and

But Lord Camden,

in

the doctrine was sifted, after

quoting the case of Lewin

" And now,

in

Executor, and

course of descent, he must take as

not as

was so

It

Lands would

the

made

except where the

&c.

trust to sell,

decided,

ble Assets

also

Assets were le^al.

the

Equity followed the

his heirs, in

were

in a

v.

think the old Rule

and that wherever the Land

who are
equitable.
And

Oakley
is

observed,

overthrown,

itself is

devised to

the same persons

Executors, the Assets

will be

the

same whenever the Land

or to them

and

hold the case to be

is

their Heirs, for in

are equitable Trustees

and the specialty Creditors have

&

both cases they

The descent

*.

b
Powel v. Robins, 7 Ves.
211. and see Charles v. AnCooke
drews, 2 Mod. 151,
v. Parsons, 2 Vern. 429.
c
Edwards and Graves, Hob.
2G5. Alexander v. Lady Gresham, I Lev. 224. Dethick v.
Carravan, 1 Lev. 224. 1 Roll.
Abr. 020. G. 6. Bosvell v. Cojant, Hard. 405,

devised to them,

is

broke,

lost their

Fund.

d
Graves and Powel, 2 Vern.
248. Anon. 2 Vein. 405. see
Clutterbuck v. Smith, Prec.
Ch. 127. Blatch v. Wilder,
1 Atk. 410.
e
Anonymous, 2 Vern. 133.

2 Atkyns, 50.
See to same effect, Buckley
Williams, I Dick. 3S7.

'

v.

EQUITY JURISDICTION.

4<H

And

now

suggest a case where the

legal,

but where the Executor

can hardly

Assets would be

has a naked power to

Some Judges
if the

that

Law,

at

sell

qua Executor

11

."

appear to have been of opinion,

Testator devises his Lands to his Heir

payment of

for the

debts, and

it is

the

?ame Estate he would have taken by descent, he

takes the Land by descent, and it will not be equitable

Assets'; but

it

has been decided, that a

mere charge, that does not break the descent,

makes equitable Assets k

And where an Estate charged with the payment of debts, is devised
.

to a Stranger, the

Estate

is

equitable Assets

If a cestui que Trust of a real Estate

makes

Mortgage upon it in Fee, and devises the Equity

of Redemption to his Son, and his
Heirs,

payment of debts, and

to the

subject

debted by Bond and simple Contract

ing a

Creditor has no preference,

Where

there

is

ed to a Person,

a general

for

makes

it

such uses,

Silk v. Prime, mentioned

Newlon and Ben138. and

1 Bro. C. C.
Prowse v. Abingdon, 1

in note to

Atk. 484.
Piunket v. Pierson, 2
Atk. 00. and Degg v. Degg,
1

P.
*

Wms.

See

in note 2.

Bayley

v.

bond

intents,

reserv-

and pur-

by Will, or otherwise,
and gives him

his absolute Estate,

such a dominion over it,

net,

the

power given or

poses, as he shall appoint

see

in-

be-

but must be paid

paripassu with the other Creditors"

this

Mortgage of the whole Inheritance, and

nothing remaining in the Mortgagor,

this

dies

Elkins,

as will subject

to his

319. Shiphard v. Lutwidge, 8 Ves. 20. Hargrave v.

Tindall, 1 Bio. C. C. Batson
v. Lindegreen, 2 Bro. 94.
Piunket v. Penson, 2 Atk.
"Ves.

'

293.
'"

290.

it

Piunket v. Penson, 2 Atk.

49j

tiiusts.

debts'": so

if

Man

has a power to dispose, by ap-

pointment of a Reversion
disposition of

it,

yet

makes no

Fee, and

in

shall be Assets to satisfy

it

speeialty Creditors".

Power

Money,

to

Estate with a

charge an

unless executed,

payment of debts";

Sum

of

not Assets for the

is

though Equity will aid a

for

execution of a Power, yet the wind of

execution, generally speaking, is, as observed elsedefective

where

never supplied.

It has before

been observed*

that

if

there be an

attempt to execute a power in favor of Creditors,

but the execution

supplied

and

may be

defective, the defect

is

power be formally execut-

if a

ed, but in favour of a Volunteer, the

take the subject from that person,

who had

the Creditors of him

Put although Creditors

over Volunteers, yet

voluntary appcintment,

and give

it

to

the power'.

in these cases

a person

if

Court will

sells to

prevail

taking under a

another

for a valu-

able consideration, such Purchaser will be prefer-

red to the Creditors

If the Vendor of an Estate reserves the purchase Money, pa\ able as he shall appoint by an
m See Thompson v. Towne, 2
Vein. 319. S. C. Pre. Cli. 52.
Lassels v. Cornwaltis, 2 Vein.
405. Bullock v. Fladgate, 1
Ves. and Bea. 47S. Barnton v.
Ward, 2 Atk. 172. Trou-liton
v. Trougliton, 3 Atk. 05(. S. (.'.
I Ves. 80.
n

lb.

Lord Cormvallis's Case, 2

Freem. 279. ted vid. Bullock

v. Flugate, 1 Ves. and Bea.

Ante, p. 40.
Toilet v. Toilet,

Ante, p. 45.

2 P. Wma,

480.

Lord Cormvallis's case, 2

Freem. 27'). George v. Millbank, 9 Ves. 19Q; and see
what i> said in Holmes and
Goghtfl, 7 Ves. 489. and see
also Hinton v. Toye, 1 Atk.
405. and Beintorj v. Ward, 2
Atk. 172. Pack v. Bathurst,
3 Atk. 268,
George v. Milbanke, 9 Ves.
c

-178.
p

190.

EQUITt JURISDICTION..

4<)f>

Instrument, executed in a particular manner, and

afterwards exercises his power, the

between

his Creditors

Where Lands are

Money

will, as

and Appointees, be Assets".

devised generally for the pay-

ment of Debts, the Vendee

of the Estate need not

Money, but
the Trustee only
but if it be for the payment of
any particular debts, or for the payment of debts
in a Schedule annexed, there the Vendee is obsee to the application of the Purchase
;

liged to see to

the application

of

it

and that

although the Estate be sold under a decree w , or

pursuance of an Act of Parliament

in

x
.

Lands for the payment of Lethe Vendee must see to the discharge of

If a devise be of
gacies,

the Legacies

but

y
;

if

the devise of the

Lands be for

the payment of Debts generally, and of Legacies,

the Purchaser

is

Legacies paid:

not bound to see the Debts or

if

he were

liable,in

such

case, to

would make it necesthe Debts were paid, as they

see the Legacies paid, that

sary for

must

him

first

to see if

be discharged \

According to several cases an Equity of Redemption offreehold*, or leasehold^, Estates,

Sugd. Vend, and Purch.
144. Thomson v. Towne, 2
Vern. 319, 416.
T
Lex Pretoria MS. Tompkins v. Tompkins, Gilb. Eq.
Rep. 90. Williamson v. Clerk,
3 Bro. C. C. 96. Hardwicke v.
Mynd, 1 Anstr. 109.
w
Lloyd v. Baldwin, 1 Ves.
173.
*

Cotterell v.

Hampson, 2

Vern. 413.
Lex Pretoria, MS.
z
See Sugd. Vend, and Purch.
413. who cites J ebb v. Abbott,

and Benyon and

Rogers

v.

an

Collins, ButT.

n. (1.) to Co. Litt.

and

is

290 b .

S. 12.
Skillicorne,

Ambl.

188.
Solley v. Cower, 2 Vern.
61. Ryall v. Kyall, 1 Atk. 60.
a

Plunket v. Penson, 2 Atk,

294. see Plucknet v. Kirk,
1 Vern. 411. where point left
undetermined.
b
Hartwell against Chitters,
Ambl. 308. Scott v. Scholey,
8 East. 465. Sir Charles Cox*s
case, P. Wins. 341. overruling

and

Interest,

equitable

equitable Assets

is

but

other Cases have determined that Chattels whether

mortgaged or

personal,

real or

Testator, and redeemed by

be Asset-,

paid for

only

at

much

tor so

shall

Redemption, though recoverable

their

a% Man takes an Assignment of a

Where

sum

worth beyond the

are

th y

Equity

in

the Executor,

the hands of the Executor,

law, in
as

by the

pledged

in a Trustee's name, and the

Term

Inheritance in his

own name, so that by construction in Equity, the

Term is attendant upon the Inheritance, such
term

Equity

in

is

Assets

is

at

Assets for the payment of

Term

debts, as well as a

Law;

taken

but with this difference, that

Surplus of the

the benefit of the

the Heir has

own name,

his

in

Trust of a Term, and not the Executor,

paid; but

if a

after

debts

term be expressly declared by Deed,

to be attendant on the Inheritance, there such

Term

will not

be considered as Assets in Equity

It is a rule, (and as

cases merely

to

two funds

we have

of Assets,

seen

only, has a

compel the former

not confined

that if a Party has

liable to his claim, a

Interest in one

person having an

Equity, to

right in

to resort to the other,

if

that

necessary for the satisfaction of both'.

is

This Rule has given

overruling doubts in

Cole

Lyster
. C.

Bolland, 3 Bro. 481.

v.

and in

Ves. Jan. 431.

P. Wms. 344. n. 2.
the cases there ched.

188. S. P.
h

:j

VOL.

I.

Ante,

See

and

what

in the

'JChaptiian v.

v.

Warden,

rise to

dall,

2 Ch.
|>.

Bond, 1 Vera.
Cas. 152.

202.etc.

Attn:!

.1

Ambl.*391,

Cooper, 8 \ es.
v. Bayne, 9 Ves.

K K

admi-

v.

Tyn-

Aldrich v.
389. Trimmer
-J0 (J.

EQUITY JURISDICTION.

498

nistration of Assets,

Marshalling of

termed,

is

Assets.

Marshalling' of Assets takes place in favor of

simple contract Creditors and of Legatees, Devisees

not

and Heirs; and

in a

next of kin

in favour of

few other cases, but

d

and the Rules of

the Court, in this respect, have been considered

to be of great

consequence to the Practice of the

Court % and

as useful

possesses

for

power

as

any the Court

where there are Creditors, and

Legacies to Children, for their Portions,

Law was to
of

it

have

its full force,

was good, when

was

it

and the Creditors were

to

if

the

(though the reason

originally framed)

exhaust the personal

would be the ruin of Families f

The
Court, therefore, leans and endeavours to bring

Estate,

it

Creditors within the Rule,

of Assets

as to the Marshalling

p.

If a Bill

is filed

Administration of As-

for the

sets,

and the Court sees

that

Creditors by simple Contract, will be de-

at

any Period of the Suit,

prived of their debts, by specialty Creditors going

against their Fund, the Court will of

the Bill

is

pear for the

first

Chitty against Parker and

4 Bro. C. C. 411.
d
1 P. Wnis. G80.

others,

v.

If,

for instance, it ap-

time by the Master's Report,

that a specialty Creditor

Galton
438:

though

not framed, with that view, direct the

Assets to be marshalled.

itself,

Hancock, 2 Atk.

was paid out of the Per-

See

Ambl.

312.

Hanby against Roberts,

128.

Lacon v. Mertins, 1 Ves*

TRUSTS.

sonal Estate,

not necessary to

is

it

4 f'9

another

file

Bill, for the purpose of marshalling- the Assets

And

first,

'.

with respect to simple contract Cre-

ditors.

Where Debts by

Law

Specialty,

which

are a lien at

on the Real Estate, are discharged out of the

personal

Assets by

Executors,

in

of the

ease

Lands, the Creditors by simple Contract, are ento stand pro tanlo, in the place of the Cre-

titled

ditors

by Specialty'; and

satisfied

out of the

If a

have their debts

Lands, and the Court will

decree them to be sold

tates,

to

for that

purpose

14

Mortgagee of Freehold and Copyhold Es-

who

is

also a Specialty Creditor, exhausts

the Personal Assets, the simple contract Creditors

are entitled to stand in his place pro tanto, against

both the Freehold and Copyhold Estates

the same Principle,

Lien on the Estate,

been marshalled
Gibbs

11

v.

Upon

the benefit of the Vendor's

for the

purchase Money, has

'".

Ougier,

12 Ves.

41 G.

Fenhoulet v. Passavant,
Dick. 253. Exparte Hodgson,
2 Dick. 737.
K
See Charles v. Andrews,
2 Mod. 151, 3.
Aldrieh v. Cooper, 8 Ves.
382. '1 hf case of Kobinsen v.
Tonge, respecting Copyholds
mentioned, L P. Wins. (.NO. in
1

G Ves. 475. Macreth v. Symonds, 1"> Ves. 338. S. C. MS.

where Lord Eldoninclinesto the
same reasonable doctrine. Polexfenand Moore, 3 Atk. 277.
seeming Authority in favor
of Marshalling, appears not to
be so when corrected by the
Register's Book, see
Sugd.
Vendor and Purch. 4 1"' 6,
see also Blackburn and Greg-

note, was in this case overruled,

Kobinson v. Gee, 1 VeS. 252.
and see Waring and Ward,
7 Ves. 830. Bell v. Phyne, 7

don, 1 Bro. 424. Certainly,

Charles and Andrews, 'J

Ves. 4(H).

Cas. in Ch. 28. are authorities

against the Marshalling.

ra

Trimmer

209 j

Bayne, 9 Ves.
and see Austin v, Hatsey,
v.

J51, 3. and Coppinv. Coppin,

2 P. Wins. 291. S. C. Select

K K 2

EQUITY JURISDICTION".

500

Debt owing

If there be a

King, the Court

to the

will direct the King's debt

to

be satisfied out of

the Real Estate, that the other Creditors

maybe

have a satisfaction of their debts out of

let in to

the Personal Assets

With

n
.

respect to Legatees,

it is,

with some ex-

ceptions, a Rule, that they have a right to marshal

as against Estates descended
tates devised, unless the

subjected to Debts

Land

his

Lands devised be expressly

or are liable to a Mortgage?.

If one, seized in fee,

devises

but not as against Es-

owes debts by Bond, and

to his

Heir

in

Tail,

and gives

several Legacies, and afterwards dies leaving the

Heir

Executor, and the Heir with the per-

his

sonal Estate pays off the

means there

Bond

debts,

are not Assets to pay the Legacies,

the Legatees are without remedy, the

devised in Tail to the Heir.

wise
Fee'

if

by which

It

Land being

had been other-

such Land descended to such Heir in

It

was

held, in one case, that the Assets could

not be marshalled for the payment of Legacies

but

it

seems, will

notbe marshalled

Sagittary v. Hyde, I Vern.

Heme

v.

Meyriek,

Wins. 201.
4
See Moyd

IP.

v.

Williams,

110. Clifton v. Burt,

1 P. Wms. 679. Hanby against

Ambl. 129. Haslewood and Pope, 3 P. Wms.

321.

Lutkins

v.

in favor of

Leigh, For. 54.

MS.

Keeling- v. Browne, 5Ves.

see the reasoning in
Kightly v. Kightly, 2 Ves.
jun. 328.
" See
Williams v. Chitty, 3
Ves. 551.

362; and

2 Atk.

Roberts,

S. C.

455.

been disapproved". Though

this doctrine has

Assets,

501

TRUSTS.

an Executor or

Residuary Legatee

',

Rule,

it is

that if the Testator give by bis Will, a Lease or a

Horse, or any specific Legacy, and [eaves

by Mortgage or Bond in which the Heir

the Heir cannot compel the specific
part with his

Legacy

in

icy to his debtj

Equity stand

in

% and

in his place

for instance,

If,

his

this specific
it e

will

the same Hide

w
.

a Testator

owes a debt

for

and leasehold Estates are Mort-

real

gaged, Equity
Estate

bound,

Legatee to

yet the specific Leg

applies to pecuniar// L< gatees

which

debt

rase of the Real Estate;

and though the Creditor may subject

1

is

will charge the debt,

on the

real

order to enlarge the Fund for the paythe Legacies as well as debts x .

in

ment of

Where one by Will gave

some
it was

several Legacies,

and others not,

charged on the

real Estate,

held, that

personal Estate proved insufficient

pay

to

all

if the

the

Legacies, the Legacies charged on

the real Estate should be paid out of the same

or

if

they had been paid out

tate, the

the personal Es-

ot*

other Legatees, as to so much, should

Land y
Testator gave some Legacies by

stand in their place upon the

And where
Will,

and others bv a Codicil, and the Lands were

charged with the Legacies

with the Legacies

in

in the Codicil,

Estate was not sufficient to pay

1

See 1 Ves. 252.

Tipping v. Tipping, 1 P.
Wms. 729; and see Burton v.
Pierpont, 2 P. Wms. 81.
See ib. and sec Davis v.
Gardiner, 2 P. Wins. 190,
v

the Will, but not

and the Personal

all

Davis

tin*

v.

Legacies,

Gardiner,

P,

"Wins. 190.

Bligh

2 P. Wms.

v.

Earl

Darnjey,

EQUITY JURISDICTION.

502

the Assets were marshalled, and the Legatees in

the Will were ordered to be paid
Estate, and

that

if

was

come

the surplus, to

deficient, they were, as to

with the Legatees

in average

the Codicil, to be

in

out of the real

paid

out of the Personal

Estate \

The Court
b

pay cha-

means the Statute of

but where there
would be eluded

Legacies

rity

will not marshal Assets to

1

for

by

that

Mortmain
was a bequest of the remainder of the Testator's
;

Annuities, Mortgages, &c. to a charity,

effects,

was held, the Devise of the Mortgages was void,

but being part of the enumerated residue, the
it

Court ordered them

ment of
d

inpay-

any other part of the perhave a larger fund for the Cha-

This being said to be, not marshalling

but arranging the different species of

Assets,

6
personal Estate

If a

first

debts, before

sonal Estate, to
rity

to be applied

Legacy be charged on the

real

and personal

Estate of the Testator, the personal Estate

be

first

applied

but

if

must

the Legacy be expressly

given out of the real Estate, such Estate must

*

385

Bonner v. Bonner, 13Ves.

and see Masters v, Mas;

ters,

P.

Wins. 422. see a

case of* this kind, Hanby and

Koberts, Ambl. 127.
*
Foster against Blagden,
Ambl. 704. Hilly ard v. Taylor,
Ambl. 714. Mogg v. Hodges,
2 Ves. 52. Makeham v. Hooper,
4 Bro. C. C. 153. Waller
against Childs, Ambl. 524 ;
and see Attorney General v.
Tyndal, cited lb. p. 526. and
reported lb. p. 615. Sed vid.

Arnold

v.

Chapman, lVes. 110.

Attorney General

v.

Greaves,

and Attorney
General and Tomkyns, AmbL

Ambl.

158.

217. Attorney General v. Lord

Mountnorris, 1 Dirk. 379.
b
9 Geo. 2. c. 36.
e
Attorney General against
Tyndall, Ambl. 015.
d
Attorney General against
Caldwell, Ambl. 036.
e
lb. Reporter's note, p. 630.
but see contra 3 Bro. C.
373. 4 Bro. C. C. 156.

TRUSTS.

bear the burthen of

applicable in aid

it,

503

and the personal

not

is

f
.

If one devises his Ileal Estate, and gives pecu-

niary or specific Legacies not charged on that real

Estate, and dies, leaving specialty debts, and the
specialty Creditors exhaust the Personal Estate,

the Legatees are

not allowed to stand in their

place and

come upon

supposed

as

much

the Realty; because

to be

it

is

the intention of the

Testator that the Devisee should have the Real

Estate,

as that the

Legatees should be paid

But Legatees

are entitled to stand in the place of

Mortgagees

By

11

the

same Rule,

if

one has only

personal Estate, and gives specific as well as general

Legacies,

if

the

Creditors exhaust

the general

Assets, yet the general Legatees shall not stand in

their place

But

if

and come upon the specific Legacies'.

one having Land and personal Estate makes

his Will, being indebted

Legacies, and

specific

residue

of his real

by

specialty,

then gives

and he gives

and

the rest

and personal Estate;

if

the

Creditors exhaust the Personalty, the Legatees

may

stand in their place, and

come upon

duary Legatee, because he has only the

the resirest

and

residue^.

1
Amesbury v. Brown, 1
Ves.477.
g Haslewood
v. Tope, 3 P.
Wins. 32:}. Hanbv against

Roberts, Ambl. 128. S.

1 Dick. 104. under Dame of
Ilamley and Fisher, Forester
against Lord Leiirh, Ambl.
173,

Ambl. 173.

'Ambl.

128; and see ForLeigh, Ambl. 173.

Hanby against Roberts,

rester
k

Ambl.

v.

128, 9.

104. under
v. Fisher,

S. C.

Dick;

name of Ilamley

EQUITY JURISDICTION.

50-4

Where

Legacy was given

to

A. charged upon

the Ileal and personal Estate, and other Legacies

were given, but not charged upon the

real Estate,

and A. exhausted the personal Estate, the othey

Legatees were allowed to take satisfaction out of
the real Estate devised

The Rule

of the Court as to marshalling As-

sets, applies

only as between the real and personal

Assets of a person deceased;

for the

Court has no

right to marshal the Assets of a person

alive,

they

not being subject to such a Jurisdiction of Equity

till

his death.

Nor can

the Court extend this

relief to Creditors further than the nature of the

Contract will support

it

therefore,

specialty Creditor of the person,

real

must be a

whose Assets

in question, such as might have a

both the

it

are

remedy against

and personal Estate, or

either, of the

it not being every specialty

Debtor deceased
the simple contract Crediplace
Creditor, in whose
tors can come to afreet the real Assets, viz. where
:

the specialty Creditor himself cannot affect the

m
Assets, as where the Heirs are not bound

Recital of a debt in a deed, does not make-

a specialty debt

it

Where

n
.

the Assets are partly legal, and partly

equitable, though
legal preference

on

Equity cannot take away the

legal Assets,

yet

if one

Cre-

been partly paid out of such legal Aswhen satisfaction comes to be made out of

ditor has
sets,

Equitable Assets, the Court will postpone hir

1

lb. 127. etc.

m Lacon

v.

Martin. 1 Ves. 312.

1 Vcs. 313,

TRUSTS.
till

there

an

is

equality in satisfaction to

the

all

other Creditors out of the equitable Assets, pro*

much

portionable to so

been

as the legal

outofthe

satisfied

Devisee of

ficiency of the

Creditor

legal Asset.-,".

Mortgaged Estate

has,

on

a de-

personal Estate, a right to have

the devised Estate, exonerated out of Ileal

sets,

lias

descended on the Heir

Formerly,

As-

a Devisee

could not have aid of the personal Estate; but

afterwards

'',

it

was held,

that a particular devisee

of such Estate, should have such aid'

It

seems, that

if

the Testator devises his Estate

Law, though the devise is void, as

making the Heir take otherwise
than by descent, yet it is held to shew the Testo his

Heir

at

to the purpose of

tator's Intent that the

Heir should have

this

Land,

and therefore the Land must be applied only as

other devised

Land would

r
.

If the Heir or Devisee of the Real Estate, (for

the Rule applies to an Hares /actus, as well as

an Hares natus*,)

may

stand

in

is

tc*

sued by a Bond Creditor, he

the place of that Creditor to be re-

imbursed outofthe Personal'.

But

the Equity to have Real Estate exonerated

by Personal,
Devisee
n

Morris

subsists only between the Heir or

and the
v.

Bunk of Eng-

Galton \. Hancock, 2 A tk.

204, 430.
p Cornish v. Mew, 'Cha. Ca,
271. Pockley v. Pockley, 1
Vein. 3<>.

Forrester

Leigh, Ambl.

Leigh

v.

Lutkins, For. 53. S.C.

MS.

land, For. 220.

Legatee, and not

Residuary

Lord
against
173,
Sed Yid,

r
See note A to Chaplin v.
Chaplin, H P. Wins. 36&
1
Pockley v. Pockley,
Yen.. 37.
Mogg v. Hodges, 2 Yes;.
'

o3.

EQUITY JURISDICTION",

50(5

against specific
Creditors

much

or general Legatees,

less

v
.

If one mortgages his Fee-simple Estate, and

devises his Leasehold to A. and his Fee-simple to

B. and dies leaving no personal

visee

must take

it

cum

De-

Estate, the

and shall not charge

onere,

the Leasehold Estate specifically devised with the

Mortgage

w
.

Bona Paraphernalia
Wife's

separate Estate",)

in favor of Creditors

Heir.

(unless purchased

They

y
;

are liable

for

out of
debts

but not in favor of an

are preferred to Legatees

z
.

A Widow,

therefore, in respect of her Paraphernalia,

has a

claim to marshal the Assets as against real Estates

descended*, but not against real Assets devised*.

want of Assets, bona paraphernalia are

applied in payment of the debts of the Husband,
and contingent Assets afterwards fall in, they are
if, for

not applicable to pay the produce of the bona

paraphernalia, as they would of a specific legacy
c

applied in payment of debts

Questions as to what

an Advancement

is

fre-

quently arise in the distribution of Assets.

v
Hamilton v. Worley, 2 Ves>
jan. 65. Hawes v. Warner, 2
Vein. 477. S. C. 3 Ch. Rep.
206.
w
Oneal v. Mead, 1 P. Wms.
693. and see Lutkins v. Leigh,
Forrester 53. S. C. MS.
* Wilson v. Pack, Prec. Ch.
295.
y Ridout v. Earl of Plymouth, 2 Atk. 104. See Lady
Tirrell's Case, 2 Eq. Abr. 155.
Burton v. Pierpont, 2 P. Wms.

79.

v. Tipping, 1 Peer
730. Snelson v. Corbet,
3 Atk. 369.

Tipping

Wms.
a

Probe rt

v.

Morgan, 1 Atk.

441. Snelson v.Corbett, 3 Atk.

369.
Sed vid. Incledon v.
Northcote, 3 Atk. 438.
b
See Probert v. Clifford,
mentioned in note 1 to 2 P.
Wms. 544. S. C. Ambl. 6.
c

Burton

Wms.

79.

v. Pierpoint,

P..

trusts.

By

the Statute (22 and 23 Car.

provided,
his

507

Heir

at

2. c.

10.)

it

is

no child of the intestate, except

Law, on whom he settled, in his life

that

time, any Estate in Lauds, or pecuniary

portion

equal to the distributive shares of the other children, shall participate with

them of the Surplus

him by way of ad;

but

the Estate so given

if

vancement, be not equivalent

to their Shares,

that such part of the Surplus, as will

make

then
it

so,

shall be allotted to him.

Questions of Advancement, whether they

arise

on the Statute of Distribution, or the custom of

London, have been frequently said to receive the
same determination 3 and, certainly, the Statute
;

was

in a great

As

the custom does not affect a

or gifts

degree founded upon the custom b .

made by

affect her.

Widow's

Estate,

her, so neither does the Statute

If the Mother,

Widow, advances

therefore, being a

a child and dies intestate,

the

child advanced does not bring

from the Mother into

The

what he received
Hotchpot
.

was made to put

an end to the long contest which had been, betwixt the temporal and spiritual Courts' ; for
Statute of Distributions

when

the spiritual Court ordered any distribu-

tion,

or

to

that purpose,

for

Bond

be given by the administrator

the

Elliot t. Collier, 1 Ves. 17.

Edwards v. Freeman, 2 P.
W.449. Holt v. Frederick, 2
P. Wins. 358.
c

Holt v. Frederick, 2 P.
356,

Wms.

temporal Courts sent a

a
See an account of thi*
dispute in Palmer v. Elliot,
3 Mod. ?>8. Carter v. Crawley,
Raym. 49G.

EQUITY JURISDICTION".

08

Prohibition, being of opinion, that the administrator

had a right

to all,

and that the

spiritual

Court could not break into that right

The Statute therefore was passed, and
.

in favor

of the practice of the spiritual Court, which pro-

ceeded

to

order

distribution

Common Law Courts

the Act intended to
sion

as

the

did not prohibit them, and

make

the Children's provi-

was agreeable

which

equal,

often

as

to

the civil

Law, where goods moveable and immoveable,

Lands) are considered, as the same, though
our Law would never let the Civil Law meddle
(i.e.

with Lands

f
.

making the provision of the

Children equal, runs throughout the whole Act;

The

first, it

intention of

gives the two-thirds.of the personal Estate

mother being allowed her third) equally

among all the Children. But then the act takes
(the

into consideration,

it

of the Children

there

that

who have

received a portion or

advancement before, but not so

up

their full share

vanced but

in part,

in that case,
is

may be some

much

as to

make

such child so ad-

allowed so

much more out

of the Intestate's personal Estate, as will suffice

make his share equal to that of the other ChilThe Statute takes nothing away that has
dren.
to

been given to any of the Children, however unequal that may have been. How much soever
that

may exceed

See Hughes
Cart. 120.
1

Edwanls

anr]

the remainder of the personal

Hughes,

Lev. 233.
v.

Freeman, 2 P.

Wins. 441,2.

Humphrey
459.

v.

440. and see

Bullen, 1 Atk,

TRUSTS.

Estate

may,

by the Intestate

left
if

he pleases, keep

509

all

it.

he

if

is

'InM

not con-

would have more, tl n he must bring

Hotchpot what he has before
this

tented, but
into

at his death, the

manifestly seems to be

intention of the Act,

tin-

grounded upon the most just rule of Equity,

The Act docs what

equality*.

Parent ought for

may
tate,

Will,

happen, that as to part of

may

has]

It

Child by

provision for a

the Testator

good and just

his Children.

all

called, a Parliamentary Will

tin-

(for

personal

intestate)

die

is

C
Es-

not

an Advancement to be brought into Hotchpot

and by the same Rule, Land given by Will to

younger Child,

is

-a.

not to be brought into Hotch-

pot.

Any Land

provision to the Heir at Law, of the

however given,

intestate,

tute of Distribution, and

Hotchpot

privileged by the Sta-

is

not to be brought into

'.

Any Land of Inheritance settled by the Freeman

upon his Children, or Money given to be laid out
in Land k is not considered as an advancement
either in part, or in the whole, within the Custom
of London, for the custom affects only theocr,

sonal Lslatc of the

Edwards and Freeman, 2

P.

P.

Freeman

Wms.

Iliune
455

'Edwards and Freeman, 2

Wms. 441.

Annnnd
Vem. 34b.

v.

v.

Vem.

Pla

Ilonevwood,

if

2 P. Wms. 27

'

443.
"lb. 439, 443,

but

181. and

Lands of

and
3 Atk.

Stanl

EQUITY JURISDICTION".

510

Inheritance are given to a Child by the Freeman,

orphanage

in bar of the

part,

and accepted as such,

be binding, or at least the Child cannot

have both m
will

it

There are

a great variety of Provisions

may be made by

Parents for Children

which
and

it

could not be expected the Statute of Distribution should enumerate

all

of them.

contingent

Provision, where the contingency has happened,

a Provision, and

is

is

within the Act

and where-

ever such Provisions are to take effect in a reason-

able time, they are considered within the Act.

child

may

be provided for by Land, Freehold or

Copyhold, or by a charge upon either, or by

Money, Goods or Stock in Companies. Some Provisions
or

may

be payable to the Child when of age,

upon Marriage; and these contingencies, framed

in an infinite variety of ways, as the several cir-

cumstances of the parties may require, rendered

it impossible for the Act to mention all of them,

and therefore

make use

was proper

it

Provision

Child

is

out of

an

good consideration,

v.

Lands

settled

2 P. Wms.

274.
D

Edwards

Wms.

440.

v.

an

upon a younger

advancement, pro tanto

Belitha,

is

Annuity given by the Father

m Cox

Legislature to

Words as they have done n

made for a Child either by volun-

advancement pro tanto

rent

the

of general

tary Settlement, or for a

for

Freeman, 2 P

to

So, an

commence

lb. p. 444,
lb. 440.

aftes

611

TIVUSTS.

advancement pro tanlo ; and hy

the same reason a reversion settled on a Child,
or a portion, though payable infuturoia an a</

his death,

is fin

vancemeni pro

Where
on

tanto, as

makes

a Father

his Marriage,

may be valued 4

it

all

a Provision for

Son

the limitations in such Set-

tlement, to the Wife and Children of such Son,

are to be considered as parts of that

and
is

it is

not the Child's Estate for

to be valued

If

Money

and brought

in

advancement
life

be settled payable on a contingency,

to take effect within a reasonable time,

vancement, pro

may make a

tanlo,

and

distribution,

tingency happens, the

it

intestate, the child

is

it is

an ad-

seems that the Court

and order that

Money

if

if

the con-

be refunded

shall

In these cases of advancement,

share,

only, that

8
.

the Father dies

entitled to his testamentary

without bringing into Hotchpot the money

he has received

in

If a Child or

Father's

advancement'.
Children are advanced in the

time, they will be considered as fatty

life

advanced, unless the quantam of the advancement

appears in Writing, under

The ground

of which

is,

Father's

the

partly,

on the

hand".

difficulty

of taking an account after such a length of time

i

Edwards

Wras.
r

44-2,

v.

Freeman, 2 P.

444.

Weyland

v.

Weyland, 2

Atk. 035.

Edwards

Wms.

Edwards,

v.

Fawkener

v.

3 Atk.

Collyer, ib. 527,

Watts,

Aik.

100. Civil v. Rich, 1 Vein. 2Ui.

v.

Freeman, 2 P.

440, 448.
Hearne v. Barber, 3 Atk.
213.
u
Harvey v. Desbouverie,
For. 135. and see 1 Vein. 8<J.
1

Hume

451. Elliot

Chace

v. Ijox,
Eq. Ca. Abr.
154, 5. where a certificate is
given at length of the cu&of London, Cleaver v.
torn

Spurling,

2 P. Wmi. 020.

EQUITY JURISDICTION.

512

but principally, because you do not

know what

to bring' into Hotchpot*.

Parol Evidence of a Father's

Declaration will

not be allowed to debar a Child of

age share

its

orphan-

but proofs of declarations by the Hus-

band, of a Citizen's daughter in regard to an ad-

vancement
be read.

Marriage with such daughter,

in

may

Proofs also of declarations of the Wife,

made during the coverture of her

may be read against the second w

first

Husband,

Father advances

If a
part,

one

of' his

Children in

and the Child dies leaving Issue, and then the

Father dies intestate

the Issue of a dead Child

claiming a distributive

Hotchpot what

But Grand-children,

it

must bring

had received x

into

has been held, are not

customary share of a Freeman's per-

entitled to a

sonal Estate by the

Where an Heir
settled

share,

their Father

Custom of London

or Co-heir has a real Estate

upon him by the Father,

this

will

not

operate as an advancement, even though declared

by the Will
the Heir at

It

is

however

Elliot

v.

of an Intestate, however given,

clear,

Son

Collier,

is

and has been long

Fowke

settled,

Hotchpot any

to bring into

2 Ves.

v.

Hunt, 1 Vera.

397.

Fawkener v. Watts,

407.
x

provision to

by the Statute of Distributions \

that the eldest

16.
w

Any Land

be so\

Law

privileged

is

to

Atk.

Proud

Wms.

500.

v.

Turner,

2 P.

z
Or money to purchase a
commission, Heame v. Barber,
3 Atk. 213.
2 P. Wms. 440.

TRUSTS.

advancement
office, though
place

to

at will, as a

Gentleman Pensioner*

and so
nuity
grant

an Annuity

is

is

or

Money

an advancement,

and the value of the An-

';

if it

has ceased, according to

tlie

pay-

option of the child'.

at the

Sums of Money given by

if

is

or

calculated by the value at the date of the

ments received,
/<r,

Army',

or a commission in the

'*,

An

him of personal Property*.

purchase a Commission,

to

513

Freeman

to a

Dough*

not given as a Marriage Portion, or in pur-

suance of a Marriage Agreement,

vancement
apprentice

8
,

amount,

Money

in

it

are given,

to

put a Son

out

him up in a Trade, it is an adSo where Money is expressed to be

part of a Fortune, though of small

or sets

vancement.
advanced

not an ad-

Father gives

If the

is

is

at

an advancement

but

if

petty

sums

times, by a Father to a

different

Child, ,and not said to be as a Portion, but by

way

of present, or otherwise, they are not to be

brought into Hotchpot'

.Presents

made by

Freeman

to his Child, after

frequently living with her for several weeks at

time, have been considered only as a satisfaction

Fitzg. 2S4. Lord Kircudbright v. Lady Kircudbright,

8 Ves. 55.
b
Norton v. Norton, 3 Ves.
317. in note.
c
Hearne v. Barber, 3 Atk.
213.
d
Lord Kircudbright v. lady
Kircudbright, 8 Ves. 03.
'

lb. p. 51.

^Hume

v.

VOL.

I.

Edwards, 3 Atk.

451. Elliot and Collier, 3 Atk.

528. and see the observations of
Mr. Vernon, at die end of his
Report of Fowke v. Lewen, I

Vern. 90.
g Sed qiur.
see Norton v.
Norton, 3 P. Wins. 317. in
note O.
h
Morns v. Burroughs, 1
Atk. 402,3. Norton v. Norton,
3 P. Wins. 317. in note.

L L

EQUITY JURISDICTION.

514

and not

for her trouble,

Hotchpot

into

as a gift to

be brought

A present of a Gold Watch and WeddingClothes,

have been considered as a personal present, and
not as an advancement

So Aliment

k
.

maintenance Money, or an allow-

ance made by a Freeman

,n

versity, or in travelling.,

is

advance

to his son at the

Uni-

not considered as an

but Alimony paid by a Father to

Child, has been considered as

Money

his

an advancement

11

out by the Intestate on the Repairs

laid

of Houses, which descended to his eldest Son, as

Heir,

not an advancement to be brought into

is

It would be otherHotchpot under the Statute.

had
been
Houses
given
to the Son in
the
wise if

the Father's life-time.

Questions of

advancement

can

arise

only

amongst children, and not between an only Child

and a

Widow p

Child advanced, as well as one not advanced,

is entitled to

or Sister

a share

upon the death of

a Brother

descent of Lands in Borough English to the

youngest Son, will not prevent his having a

distributive
tate
s

Hume

v.

Edward;?, 3 Atk.
Ambl. 189.

Elliot v. Collier, 1 Ves. 1G.

S. C.

3 Atk. 527.
v. Freeman, 2 P.

Edwards

"Wrns.

4oG.

Elliot v.

Collier,

1 Ves. 15.
m 3 P. Wrns. 317. in note.
n

528.

personal Es-

452. see also

k

share of his Father's

full

Elliot v, Collyer,

3 Atk.

Smith v. Smith, 5 Ves. 721

Garon v. Trippet, Ambl.
190. and see Certificate in
Chase and Box, Eq. Cas. Abr.
p

154.
q

135.

Hudson v. Hudson, For.

Cowper v. Scott, 3 P.

Wrns. 124.
r

Lutwyche

For.27G.

v.

Lutwyche,

515

TRUSTS.

Questions relative to the administration of

i-

custom of London, have

frequent since the Statute ', which

tates according to the

been

much

gives

Freemen of the City

less

of their personal

tom.

disposing

by the Cus-

Freeman's personal property

If the

position; but

if

it

is dis-

goes according to such

dis-

he dies intestate wholly, or in

Customary

part, then the

which he

of

Estate, unfettered

posed of by Will,

to

power

part of the property as

dies intestate,

is

distributable accord-

ing to the Custom, but the testamentary part

out of the Custom, and

distributable according

is

to the Statute of Distributions

And though
City, and

lives

his Estate

is

in

London

Wife a Jointure, and

is

entitled to a Share

only Child of a Freeman of

in part,

leaves the

Country twenty Years,

the
his

of

dies,

distributable according to the custom,

and the Wife

ced

Freeman

makes

marries, and

An

is

London advan-

not obliged to bring such part into

is

Hotchpot".
If a

Man

marries an orphan

who

dies

under

twenty-one, her orphanage part does not survive

to the other children, but goes to the

unless he

is

11 Geo. 1.
Staplcton
Vera. \'-i'2.
5

Rutter

WeWb

her orphanage part,

loses

reconciled to her before his death*.

180.
110.

daughter of a Freeman, marrying without

her Father's consent,

Husband 7

"

v.

Sherard, 1

'

v.

Rutter, 1 Vera.

v.

Webb, 2 Vein.

Fane

v.

Beuch, 2 Vera.

231.

Touke

v.

Lewen,

Vera,

Hewlett,

Vein.

88.
'

354.

Foden

v.

EQUITY JURISDICTION.

3l(>

Money
phan,

only

by an Or-

to be brought into hotchpot

be brought into the orphanage part

will

x
.

By

the custom of York, a distribution takes

similar in

place in cases of intestacy,

most

re-

spects to distributions under the custom of Lon-

don, but

is

regards the

different in

Widow

The widow

is

some

points, as in

and Children of the

intestate.

entitled not only to her apparel

the furniture of her chamber, but

paraphernalia

what

also

and

to her

and with respect to the Children,

the orphanage part vests immediately on the death

of the Intestate

By

2
.

who

the custom of York, the Heir

any Land, either

reversion only
portion.

If

b
,

in
is

Fee or

in Tail

divested of

any question

all

1
,

inherits

or even in

claim to a

filial

arise in the administra-

tion of Assets respecting the

custom of the City

of York, an Issue will be directed to be tried at

Law

c
.

In respect to Wales, the doctrine of thenars

rationabilis extends to Intestate's Effects

that principality

The

within

d
.

personal Property of an intestate, wherever

situated,

must be distributed by the Law of the

x
Beck ford v. Beckford, 1
Vern. 340.
y Swinb. p. 6. s. 9. Toller's
Law of Executors, 318.
* 2 Bl.
Com. 519. 4 Burn.
Eccl. Law, 398. Toller's Law
of Executors, 319.

4Burn Eccl. Law 31 9. TolLaw of Executors 319.'

" 4 Burn Eccl. Law 319.
c
Constable v. Constable, 2

ler

Vern. 375.
d
Toller's Law of Executor*
320. 7 and 8 Wil. 3. c. 38.

TRUSTS.

j 17

country where his domicil was'.; which

may be

rebutted, or supported by circumstances

It lias

Waiter Walker,

Statute of Janus

tin

by

*.

been more than once observed, that the

Statute, of Distributions

penned

prima,

is

facie the place of his residence: but that

f
;

drawn,

said,

is

it

famous Civilian

by Sir

and

,)

tha

are very incorrectly

Second'

'',

but the construction of them

is

settled

decisions.

All questions upon the Statute of Distributions

computing the degrees of proximity of

blood, arc decided by the Rules of the Civil
as

to

Law g
By the
.

Statute of James the Second,

if after

the

death of the Father any of his children die intestate,

without Wife or Children, every Brother and

and

Sister

Representatives are entitled to

their

an equal share with the Mother

By

Common Law,

the

administer, but

nary to grant
the 21 Hen.

was

it

equal kin, which

entitled

to

and

v.

v.

(elf,

Bempde

v.

Johnstone, 3

I<)s.

22 and

if

Ch.

2.

10.

Pett's case, 1 p. Wuis, 27.

1 Jac. 2. c. 17.

this injustice

but.

f
Stanley v. Stanley, 1 Atk.
457; and see Edwards and
Freeman. S P. Win-. 114.
Lloyd v. Tench, 2 Ves. 214;
and we Wentney \. Petty,

Pr.r. (h.
"

2-'}

to

there were persons of

the surplus

5 Ves. 700.
Ves.

Then came

pleased.

ever took out administration

Pipon, Ambl. 25.

Amid. 415.
Th(
"lorne v. Wutkins, 2 V. 35.
Somi
immerville v. Sommerville,

Pipon

Burn
urn

to

the breast of the ordi-

in

which gave the administration

8.

the next of kin

was

'.

no Person had a right

whom he

to

it

WJ.

krlvuav

Wins. 34

I.

v.

Kelvwav, 2 P.
Rep.

S. C. Gilbert

1SU, 1U0. 1 Str. 71U.

MS

EQUITY JURISDICTION.

was prevented by the Statute of Distributions,

which obliges the Administrator to distribute'.
The Husband is entitled to administer to his
.

Wife

k
.

An
tator

Executor derives
;

his

Power from

If administration is granted to two,

them

his Tesl

the Administrator from the Ordinary

and one of

dies, the administration survives.

Though

a Person entitled to a distributory

share, dies within a year after the intestate, his

Interest

considered as vested, and passes to his

is

Executors or Administrators

and

holds

this

equally in lineal and collateral successions

the share does not in

all

events vest, for

if

but

there

be a posthumous child, such child takes a share

though not

Where

in esse at the Intestate's death

there

is

only one person entitled to take

the personal Estate, as next of kin, the Statute

making him

vests the right in that person,

Legatee of the party deceased

Humphrey v. Bullen, 1 Atk.

459. See as to the History of
administration what is said in
'

Hudson

and Hudson, For.

128, 9.
k
lb ; and see Edwards and
Freeman, 2 P. Wms. 441, etc.
1

Hudson

v.

Hudson,

Atk.

461.

m Hudson

v.

127. Adams
2 Vern. 514.

Hudson, For.
Buckland,

v.

Show. 25. 3 Mod. 58.

lVerrj, 403. 2 Vern, 274. Carth.
"

as a

Edwards

v. Freeman, 2 P.
441. and vid. note D.
to Davers v. Dewey, 3 P. Wms.
49. See also Hart and King in
Exchequer, Trin. 6 Geo. 1.
1720. MS.
Earl of Winchelsea v. Norcliffe, 1 Vern. 403. Wallis v.
Hodson, 2 Atk. 116. Palmer

52.

Wms.

v.

Alicot, 3 Mod. Gudgeon

Ramsden, 2 Vern. 274.

v.

p 2 P. Wms. 446. Wallis

Hodgson, 2 Atk. 116.
q 3 P. Wms. 49. note D.

v.

TRUSTS.

The

sig

following points have been decided in re-

22 and 23 Car. II.

spect to,the Statute of the

10. which as to the Estates of Femes Covert,

was explained by the subsequent Statute ol*
29 Car. II. c. 3. s. 24.
c.

If there be Uncle or Aunt's Children, and Bro-

ther or Sister's Grand-children, they take equally

If there be a

'.

Grand-mother, Uncle or Aunt,

the whole goes to the Grand-mother".

Two

Nephew and

Aunts, a

equally, per capita

If there be an Uncle,

Child,

all

a Niece,

take

'.

and a deceased Uncle's

goes to the Uncle".

A Nephew

by

a Brother,

and a

Nephew by

half Sister, take equally, per capita*.

Nephew by

a deceased

phews and Nieces by

Ne-

Brother, and

deceased Sister, take

equally, per capita

be only a Brother and a Grand-father,

If there

the Brother takes the whole

1
.

If the Intestate dies, leaving a Brother's

r

Thomas

Kctteriche,

v.

Ves. 333.
Mcntiipy v.
Ch. 593. Lloyd
Ves. 215.

Durant
Atk. 455.
1

Petit,
v.

Prec.

Tench, 2

Prestwood, 1
Llovd v. Tench,
2 Ves. 213. Page v. Cook,
mentioned 2 Ves. '214. contra
1 Domat Civil I. aw 666.
u

v.

Bowers v. Littlewood, 1 P.
Wins. 593; and see Brecton v.
Darkin, 2 V'ern. 108. Maw v.
Harding, 2 Vera. 233.

Grand-

T
Stanley v. Stanley, 1 Atk.
45G. Davers v. Dewes, 1 P.

Wms.
215.
1 P.

Lloyd \. Tench,
55.
Bowers v. Littlewood,

Wms. 595.
Stanley v. Stanley,
456. Davers v. Dewes,
w

Atk.

1
P,
50. Lloyd v. Tench,
2 Ves. 215. Bowers v. Little-

Wms.

wood, 1 P. Wms. 595.

x
Evelyn v. E?< lyn, 3 Atk.
762. S. C. Ambl. 191.

EQUITY JURISDICTION.

520
son,

and a Brother or

Daughter, the

Sister's

Daughter takes the whole

If a Bastard dies intestate, or if

any other per-

son having no Wife, Children, or kindred, dies intestate,

his

effects

devolve on

the King,

who

usually makes a grant of them \

y Pitt's

Case,l P.

END

Wms.

01

25.

" See
2 Black.
Dougl. 542.

THE FIRST VOLUME,

ii.nt, St. sepulchre s, Lundun

Com. 505.

uc soun

AA

^
rk

000 728 236

II

iii