CHAPTER XXVII.

OF PROCEEDINGS IN THE COURTS OF EQUITY.

BEFORE we enter on the proposed subject of the ensuing chapter, viz., the nature and method of proceedings in the courts of equity, (1) it will be proper to recollect the observations which were made in the beginning of this book (a) on the principal tribunals of that kind, acknowledged by the constitution of Eng

(a) Pages 45, 50, 78.

(1) [That the courts of equity and courts of law are not opposed to each other, and often concur in the exercise of their powers, to promote the ends of substantial justice. is not now disputed. It is said that matters of fact should be left to courts of law for the decision of a jury : iRidgway's Parl. Car. 9; and issues are oftentimes directed for that purpose; yet "there is no doubt," says Lord Eldon, "that according to the constitution of this court, it may take upon itself the decision of every fact put in issue upon the record." And again, "This court has a right (to be exercised very tenderly and sparingly) of deciding without issues." 9 Ves. 168. The general rule is, that a court of equity will never exercise jurisdiction over criminal proceedings. Yet in a case where the plaintiff's indicted defendant's agent at the sessions, where the plaintiffs themselves were judges, for a breach of the peace, Lord Hardwicke made an order to restrain the prosecution till after hearing of the cause and further order; and where a bill is brought to quiet possession, if the plaintiff afterwards prefer an indictment for forcible entry, this court will stop the proceedings upon such indictment. 2 Atk. 302. The court of chancery has no jurisdiction to prevent a crime, except in the protection of infants. Therefore, it is said, that the publication of a libel cannot be restrained: 2 Swanst. 413. Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. The court of chancery has a concurrent jurisdiction with the admiralty: Gilb. Eq. Rep. 228; and may repeal letters of reprisal, after a peace, though there is a clause in the patent that no treaty of peace shall prejudice it. 1 Vern. 54. So equity may relieve after verdict in K. B. or C. P., and even grant a perpetual injunction after five trials at law on the same point and verdicts the same way; but equity is very tender in the exercise of this power. 2 P. Wms. 425; 10 Mod. 1. And a court of equity will not review the orders of the exchequer as a court of revenue; nor interfere where that court, as a court of revenue, is competent to decide the subject matter. 3 Ridgw. P. C. 80.

Matters arising out of England. A question concerning the right and title to the Isle of Man may be determined in a court of chancery. 1 Ves. 202. Where the defendant is in England, though the cause of the suit arose in the plantations, if the bill be brought here, the court agens in personam may, by compulsion of the person, force him to do justice, for the jurisdiction of the chancellor is not ousted: 3 Atk. 589; see 1 Jac. and W. 27; and this although in general all questions respecting real estates belong to the country where they are situate. Eiliott e. Lord Minto, 6 Mod. 16.

1. It is assistant to the common law, by removing legal impediments to a fair decision of a question depending in those courts; as, preventing the setting up of outstanding terms, &c. 5 Mad. 428; 2 J. and W. 391.

2. It acts concurrently with the common law, by compelling a discovery which may enable those courts to decide according to the real facts and justice of the case; as, where the discovery is to ascertain whether the defendant did not promise to marry: Forrest, Rep. 42; or to disprove the defendant's plea, that he had made no promise within six years, and to compel him to state whether he has not promised within that time; 5 Mad. 331; but he has a right to protect himself in equity by the statute of limitations, from a discovery as to the original consideration of the debt, or whether it has since been paid. 5 Mad. 331. So he may be required to disclose whether he is an alien or not: 2 Ves. Sen. 287, 494; but where a discovery would subject a party to penalty or forfeiture, it is not to be obtained: 1 Ves. 56; 2 Ch. Rep. 68; 2 Atk. 392; 2 Ves. 265; 1 Eq. Ab. 131, p. 10; except in cases under the stockjobbing act (7 Geo. II, c. 8, s. 1; 2 Marsh. Rep. 125), and some other particular provisions. Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 393; vide Mitf. Pl. 150: It exercises concurrent jurisdiction, in perpetuating testimony in danger of being lost before it can be used; by preserving property during litigation; by counteracting fraudulent judgments; by setting bounds to oppressive litigation; and in cases of fraud, accident, mistake, account, partition and dower. 3. It claims exclusive jurisdiction in matters of trust and confidence, and whenever, upon the principles of universal justice, the interference of a court of judicature is necessary to prevent a wrong, and the positive law is silent. 1 Fonb. Eq. p. 9, n. (f.)

The matters over which the court of chancery maintains an equitable jurisdiction have been arranged in the following alphabetical order; and as this analysis has the recommendation of practical utility, we shall proceed to embody the principal rules and decisions under each head respectively.

land; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.

I have already (b) attempted to trace (though very concisely) the history, rise, and progress, of the extraordinary court, or court of equity, in chancery. The

(b) Page 50, &c.

I. ACCIDENT AND MISTAKE.

II. ACCOUNT.

III. FRAUD.

IV. INFANTS.

V. SPECIFIC PERFORMANCE OF AGREEMENTS.

VI. TRUSTS.

I. ACCIDENT AND MISTAKE. By accident is meant, where a case is distinguished from others of the like nature by unusual circumstances, for the court of chancery cannot control the maxims of the common law, because of general inconvenience; but only where the observation of a rule is attended with some unusual and particular inconveinence. 10 Mod. 1.

1. Bonds, &c. Equity will relieve against the loss of deeds (3 V. and B. 54), or bonds (5 Ves. 235; 6id. 812), but not if the bond be voluntary. 1 Ch. Ca. 77. It will also set up a bond so lost or destroyed, against sureties, though the principal be out of the jurisdiction. 3 Atk. 93: 1 Ch. Ca. 77; 9 Ves. 464. Bonds made joint, instead of several, may be modified according to intent in some cases. 2 Atk. 33; 9 Ves. 118; 17 id. 514; 1 Meriv. 564.

2. Boundaries, &c. Equity will ascertain the boundaries or fix the value, where lands have been intermixed by unity of possession. 2 Meriv. 507; 1 Swanst. 9. So to distinguish copyhold from freehold lands within the manor. 4 Ves. 180; Nels. 14.

3. Penalties, Forfeitures, &c., incurred by accident, are relieved against (2 Vern. 594; 1 Stra. 453; 1 Bro. C. C. 418; 2 Sch. and Lef. 685), where the thing may be done afterwards, or a compensation made for it. 1 Ch. Ca. 24; 2 Ventr. 352; 9 Mod. 22; 18 Ves. 63. But no relief is given in the case of a voluntary composition, payable at a fixed period. Amb. 332. See 1 Vern. 210; 2 Atk. 527; 3 id. 585; 16 Ves. 372. Equity will not relieve against the payment of stipu lated, or, as they are sometimes called, liquidated damages: 2 Atk. 194; Finch, 117; 2 Ch. Ca. 198; 6 Bro. P. C. 470; 1 Cox. 27; 2 Bos. and P. 346; 3 Atk. 395; and forfeitures under acts of parliament, or conditions in law, which do not admit of compensation, or a forfeiture which may be considered as a limitation of an estate, which determines it when it happens, cannot be re lieved against. 1 Ball and Batt. 373, 478; 1 Stra. 447, 452; Prec. Ch. 574.

4. Mistake. A defective conveyance to charitable uses is always aided; 1 Eden, 14; 2 Vern 755; Prec. Ch. 16; 2 Vern. 453; Hob. 136; but neither a mistake in a fine (if after death of con usor), or in the names in a recovery, are supplied, especially against a purchaser: 2 Vern. 3; Ambl. 102. Nor an erroneous recovery in the manorial court. 1 Vern. 367. Mistakes in a deed or contract, founded on good consideration, may be rectified. 1 Ves. 317; 2 Atk. 203. And if a bargain and sale be made and not enrolled within six months, equity will compel the vendor to make a good title, by executing another bargain and sale which may be enrolled. 6 Ves. 745. A conveyance defective in form may be rectified (1 Eq. Ab, 320; 1 P. Wms. 279), even against assignees (2 Vern. 564; 1 Atk. 162; 4 Bro. C. C. 472), or against representatives. 1 Anst. 14. So defects in surrenders of copyhold. 2 Vern. 564; Salk. 449; 2 Vern. 151. But not the omission of formalities required by act of parliament in conveyances. 5 Ves. 240, 3 Bro. C. C. 571; 13 Ves. 588; 15 id. 60; 6 id. 745; 11 id. 626. Defects in the mode of conveyance may be remedied. 4 Bro. C. C. 352. So the execution of powers. 2 P. Wms. 623.

II. ACCOUNT. Mutual dealings and demands between parties, which are too complex to be accurately taken by trial at law, may be adjusted in equity: 1 Sch. and Lefroy, 309; 13 Ves. 278, 279; 1 Mad. Ch. 86, and note (i); but if the subject be matter of set-off at law, and capable of proof, a bill will not lie: 6 Ves. 186; and the difficulty in adjusting the account constitutes no legal objection to an action. 5 Taunt. 481; 1 Marsh. 115; 2 Camp. 238.

III. FRAUD. Equity has so great an abhorrence of fraud, that it will set aside its own decrees if founded thereupon; and a bill lies to vacate letters patent obtained by fraud. 13 Vin. Ab. 543, pl. 9; 1 Vern. 277. All deceitful practices and artful devices, contrary to the plain rules of common honesty, are frauds at common law, and punishable there; but for some frauds or deceits there is no remedy at law, in which cases they are cognizable in equity, as one of the chief branches of its original jurisdiction. 2 Ch. Ca. 103; Finch, 161; 2 P. Wins. 270; 2 Vern. 189; 2 Atk. 324; 3 P Wms. 130; Bridg. Ind. tit. Fraud. pl. 1. Where a person is prevented by fraud from executing a deed, equity will regard it as already done. 1 Jac. and W. 99.

1. Trustees are in no case permitted to purchase from themselves the trust estate (1 Vern. 465), nor their solicitor. 3 Mer. 200. Nor in bankruptcy are the commissioners (6 Ves. 617), or assignees (6 Ves. 627), nor their solicitors. 10 Ves. 381. Nor committee or keeper of a lunatic (13 Ves. 156), nor an executor (1 Ves. and B. 170; 1 Cox. 134), nor governors of charities. 17 Ves. 500.

same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer; with a distinction, however, as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those peculiar to the chancery.

2. Attorney and Client. Fraud in transactions between attorney and client is guarded against most watchfully. 2 Ves. J. 201; 1 Mad. Ch. 114, 115, 116.

3. Heirs, Sailors, &c. Equity will protect improvident heirs against agreements binding on their future expectancies, negotiated during some temporary embarrassment, provided such agreement manifest great inadequacy of consideration. 1 Vern. 169; 2 id. 27; 1 P. W. 310; 1 Bro. C. C. 1; 2 Ves. 157. It will also set aside unequal contracts obtained from sailors respecting their prize-money: Newl. Cont. 443; 1 Wils. 229; 2 Ves. 281, 516; and the fourth section of 20 Geo. III, c. 24, declares all bargains, &c., concerning any share of a prize taken from any of his majesty's enemies, &c., void. Vid. Newl. Cont. 444

4. Guardian. Fraud between guardian and ward is also the subject of strict cognizance in the court of chancery. For the details under this head, see book 1, ch. xvii, and notes.

5. Injunctions. In a modern work the subject of injunctions is considered under the head of fraud: see 1 Mad. Ch. 125; but it seems to deserve a distinct consideration. An injunction is a method by which the court of chancery interferes to prevent the commission of fraud and mischief. The exercise of this authority may be obtained, 1st. To stay proceedings in other courts. 2d. To restrain infringements of patents. 3d. To stay waste. 4th. To preserve copyright. 5th. To restrain negotiation of bills, &c., or the transfer of stock. 6th. To prevent nuisances, and in most cases where the rights of others are invaded, and the remedy by action at law is too remote to prevent increasing damage. See 1 Mad. Ch. 157 to 165. An injunction to stay proceedings at law does not extend to a distress for rent. 1 Jac. and W. 392. Nor has equity any jurisdiction to stop goods in transitu in any case, nor will the court restrain the sailing of a vessel for such purpose by injunction. 2 Jac. and W. 349.

6. Bills of Peace, which form an essential check on litigation. 1 Bro. P. C. 266; 2 id. 217; Bunb. 158; 1 P. W. 671; Prec. Ch. 262; 1 Stra. 404. For this purpose a perpetual injunction will be granted. See 10 Mod. 1; 1 Bro. P. C. 268. This bill cannot hold in disputes between two persons only. 2 Atk. 483, 391; 4 Bro. C. C. 157; Vin. tit. Ch. 425, pl. 35; 3 P. W. 156. 7. Bill of Interpleader will lie to prevent fraud or injustice, where two or more parties claim adversely to each other, from him in possession; (otherwise it will not lie, 1 Mer. 405) for in such case, it is necessary the two claimants should settle their rights before the person holding possession be required to give up to either. 2 Ves. J. 310; Mitf. Pl. 39; 1 Mad. Ch. 173; and on the same principle,

8. Bills or Writs of Certiorari, to remove a cause from an inferior, or incompetent, jurisdiction.

9. Bills to perpetuate testimony in danger of being lost before the right can be ascertained. 10. Bills to discover evidence in possession of defendant, whereof plaintiff would be otherwise wholly deprived, or of deeds, &c., in defendant's custody.'

11. Bills of Quia Timet for the purpose of preventing a possible future injury, and thereby quieting men's minds and estates, &c. 1 Madd. Ch. 224; Newl. on Contr. 93, 493.

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12. Bills for the delivering up of Deeds. As where an instrument is void at common law, as being against the policy of the law, it belongs to the jurisdiction of equity to order it to be delivered up. 11 Ves. 535. In Mayor, &c., of Colchester v. Lowton, Lord Eldon says: 'My opinion has always been (differing from others) that a court of equity has jurisdiction and duty to order a void deed to be delivered up, and placed with those whose property may be affected by it, if it remains in other hands." 1 Ves, and B. 244.

13. Bills for apportionment or contribution between persons standing in particular relations one to another. 5 Ves. 792; 2 Freem. 97.

14. For Dower and partition.

15. To establish moduses.

16. Bills to marshal securities.

17. Bills to secure property in litigation in other courts. And,

18, and lastly. Bills to compel lords of manors to hold courts, or to admit copyholders and bills to reverse erroneous judgments in copyhold courts. Vide 1 Madd. Ch. 242 to 253.

IV. INFANTS. The protection and care which the court of chancery exercises over infants have already been incidentally noticed. Vide book 1, cc. xvi, xvii, and notes.

Wards of Court. To make a child a ward of court, it is sufficient to file a bill; and it is a contempt to marry a ward of court, though the infant's father be living. Ambl. 301. The court of chancery, representing the king as parens patriæ, has jurisdiction to control the right of the father to the possession of his infant; but the court of K. B. has not any portion of that delegated authority, The court of chancery will restrain the father from removing his child, or doing any act towards removing it out of the jurisdiction. So will the court refuse the possession of the child to its mother, if she has withdrawn herself from her husband. 10 Ves. 52; Co. Lit. 89, (a), n. 70; 2 Fonb. Tr. Eq. 224, n. (a); 2 Bro. C. C. 499; 1 P. W. 705; 4 Bro. C. C. 101; 2 P. W. 102. The court retains its jurisdiction over the prop erty of a ward of court after twenty-one, if it remains in court; and if the ward marries, will

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1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in [ *427 ] every feudal view; but *resulted to the king in his court of chancery together with the general protection (c) of all other infants in the king

(c) F. N. B. 27

order a proper settlement to be made, or reform an improper one, unless the ward consents to the settlement either in court or under a commission. 2 Sim. and Stu. 123, n. (a). In case the husband assign the property of the wife, who is a ward of court, it shall not prevail, but the court will direct even the whole of the property in question to be settled on the wife and her children, and the assignee will not be entitled even to the arrear of interest accrued since the marriage. 3 Ves. 506.

V. SPECIFIC PERFORMANCE OF AGREEMENTS. The jurisdiction of the courts of equity, ir matters of this kind, though certainly as ancient as the reign of Edward IV, did not obtain an unresisting and uniform acquiescence on the part of the public till many years afterwards. See 1 Roll. Rep. 354; 2 id. 443; Latch. 172.

Realty. Thus equity enforces agreements for the purchase of lands, or things which relate to realties, but not (generally) those which relate to personal chattels, as the sale of stock, corn, hops, &c.; in such cases the remedy is at law. 3 Atk. 383; Newl. Cont. 87.

That which is agreed to be done is in equity considered as already done: 2 P. W. 222; and therefore when a husband covenants on his marriage to make a settlement charged upon his lands, which he is afterwards prevented from completing by sudden death, the heir shall make satisfaction of the settlement out of the estate. Id. 233.

Personalty. In agreements, with penalties for the breach of them, it is necessary to distinguish the cases of a penalty intended as a security, for a collateral object, from those where the contract itself has assessed the damages which the party is to pay, upon his doing or omitting to do the particular act. In these latter cases, equity will not interfere either to prevent or to enforce the act in question, or to restrain the recovery of damages after they have become due. But in the former, where it plainly appears that the specific performance of that act was the primary object of the agreement, and the penalty intended merely to operate as a collateral security for its being done, though at law the party might make his election, either to do the particular act or to pay the penalty, a court of equity will not permit him to exercise such right, but will compel him to perform the object of the agreement. Newl. Cont. c. 17. Thus, as the principle whereon a specific performance of agreement relating to personals is refused, is, that there is as complete a remedy to be obtained at law, therefore, where a party sues merely on a memorandum of agreement (a mere memorandum not being regarded as valid at law), a court of equity will give relief, for equity suffers not a right to be without a remedy. 3 Atk. 382, 385. But it is only where the legal remedy is inadequate or defective, that courts of equity interfere. 8 Ves. 163. Equity will not enforce an agreement for the transfer of stock: 10 Ves. 161; but it has been held that a bill will lie for performance of agreement for purchase of goverment stock, where it prays for the delivery of the certificates which give the legal title to stock. 1 Sim. and Stu. 590. And it seems the court will entertain a suit for the specific performance of a contract for the purchase of a debt. 5 Price, 325. So to sell the good will of a trade, and the exclusive use of a secret in dying (1 Sim. and Stu. 74) but not without great caution. See 1 P. Wms. 181.

VI. TRUSTS. Trusts may be created of real or personal estate, and are either, 1st, Express; or, 2d, Implied. Under the head of implied trusts may be included all resulting trusts, and all such trusts are not express. Express trusts are created by deed or will. Implied trusts arise, in general, by construction of law, upon the acts or situation of parties. 1 Mad. Ch. 446. 1. Lunatics. The custody of the persons and estates of lunatics was a power not originally in the crown, but was given to it by statute, for the benefit of the subject. 1 Ridgw. P. C. 224, et vid. 2 Inst. 14. And now, by the statute de prerogativa regis (17 Edw. II, c. 9 and 10), the king shall have the real estates of idiots to his own use, and he shall provide for the safe keeping of the real estates of lunatics, so that they shall have a competent maintenance, and the residue is to be kept for their use. 1 Ridgw. P. C. 519, 535. A liberal application of the property of a lunatic is made to secure every comfort his situation will admit (6 Ves, 8), without regard to expectants on estate. 1 Ves. J. 297. The power of the chancellor extends to making grants from time to time of the lunatic's estate, and as this power is derived under the sign manual, in virtue of the prerogative of the crown, the chancellor, who is usually invested with it, is responsible to the crown alone for the right exercise of it. Per Ld. Hardw., 3 Atk. 635. It is said, that since the revolution the king has always granted the surplus profits of the estate of an idiot to some of his family. Ridgw. P. C. 519, App. note 1.

2. Charities. The general controlling power of the court over charities does not extend to a charity regulated by governors under a charter, unless they have also the management of the revenues, and abuse their trust; which will not be presumed, but must be apparent, and made out by evidence. 2 Ves. Jun. 42. The internal management of a charity is the exclusive subject of visitorial jurisdiction: but, under a trust as to the revenue, ab ise by misapplication is controlled in chancery 2 Ves, and B. 134.

dom. When, therefore, a fatherless child has no other guardian, the court of chancery has a right to appoint one: and from all proceedings relative thereto, an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage the defence of the infant if a suit be commenced against him; a power which is incident to the jurisdiction of every court of justice: (d) but when the interest of a minor comes before the court judicially, in the progress of a cause, or upon a bill for that purpose filed, either tribunal indiscriminately will take care of the property of the infant.

2. As to idiots and lunatics: the king himself used formerly to commit the custody of them to proper committees, in every particular case; but now, to avoid solicitations and the very shadow of undue partiality, a warrant is issued by the king, (e) under his royal sign manual, to the chancellor or keeper of his scal, to perform this office for him: and, if he acts improperly in granting such custodies, the complaint must be made to the king himself in council. (f) But the previous proceedings on the commission, to inquire whether or no the party be an idiot or a lunatic, are on the law side of the court of chancery, and can only be redressed (if erroneous) by writ of error in the regular course of law. (2) 3. The king, as parens patriæ, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And, therefore, whenever it is necessary, the attorney-general, at the relation of some informant (who is usually called the relator), files ex officio an information in the court of chancery to have the charity properly established. By statute also, 43 Eliz. c. 4, authority is given to the lord chancellor, or lord keeper, and to the

(d) Cro. Jac. 641. 2 Lev. 163. T. Jones, 90. (e) See book I, ch. 8. (f) 3 P. Wms. 108. Sce Reg. Br. 267.

3. Executors. Where an executor has an express legacy, the court of chancery looks upon him as a trustee with regard to the surplus, and will make him account, though the spiritual court has no such power. 1 P. W. 7. And where an executor, who was directed to lay out the testator's personalty in the funds, unnecessarily sold out stock, kept large balances in his hand, and resisted payment of debts by false pretences of outstanding demands, he was charged with five per cent interest and costs, but the court refused to make rests in the account. Jac. and W. 586. And see, on this subject, ante, book 2, ch. 32.

1

4. Marshalling Assets. The testator's whole personal property, whether devised or not, is assets both in law and equity, to which creditors by simple contract, or of any higher order, may have recourse for the satisfaction of their demands. But the testator may, by clear and explicit words, exempt his personalty from payment of debts as against the devisee of his realty, though not as against creditors. The rule in equity is, that, in case even of a specialty debt, the personal assets shall be first applied, and if deficient, and there be no devise for payment of debts, the heir shall then be charged for assets descended. 2 Atk. 426, 434. For lands are in equity a favored fund, insomuch that the heir at law, or devisee, of a mortgagor may demand to have the estate mortgaged by such devisor himself cleared out of the personalty. Vin. Ab. tit. Heir, U. pl. 35; 1 Atk. 487. And a specific devisee of a mortgaged estate is entitled to have it exonerated out of real assets descended. 3 Atk. 430, 439. But at law there is no such distinction of favor shown to lauds; a bond creditor may, if he please, proceed immediately against the heir, without suing the personal representative of his deceased debtor. As to the order in which real assets shall be applied in equity for payment of debts (after exhausting the personal effects, supposing them not exempted), the general rule is, first, to take lands devised simply for that purpose, then lands descended, and, lastly, estates specifically devised, even though they are generally charged with the payment of debts. 2 Bro. 263.

Equitable assets are such as at law cannot be reached by a creditor, as a devise in trust to pay debts, of an equity of redemption subject to a mortgage in fee, or where the descent is broken by a devise to sell for the payment of debts. 1 Vern. 411; 1 Ch. Ca. 128, n; 2 Atk. 290. But lands so devised, subject to a mortgage for years, are legal assets.]

Upon the general subject of equity jurisdiction, a brief note like the foregoing can give but very imperfect information. The treatises by Mr. Spence on the equitable jurisdiction, and by Adams and Story on equity jurisprudence, are very full and satisfactory.

Some of the United States have no distinct equity system, and the relief formerly given in equity in some cases cannot be had; in others, equity principles are administered, but under the same forms and by the same courts as common-law principles are; and in others still, the equity system is fully retained, but is administered under equitable forms by the same judges who hold the courts of common law. This last is the case with the courts of the federal government.

(2) This jurisdiction is now exercised under and regulated by statutes 16 and 17 Vic. c. 70, and 30 and 31 Vic. c. 87, and the lords justices may exercise it.