You are on page 1of 620

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

D