Mistakes in Wills-Acquittance supplied.

636

priate terms; if, however, a testator uses a different description, but plainly points out what he means, it is not so much a mistake that is corrected, but that his description of the person or thing is adopted.

A devise void at law for a mis-recital of a grant, and by reason of an attornment, was holpen in equity (a), but there is no longer one rule for the construction of devises at law, and another in equity, as has already been observed.

Where an obligation was in fact discharged, but an acquittance was omitted to be taken, the Court of Chancery, as observed in the last chapter, would not permit the security to be put in force.

In an early case on this subject recorded in the Year Books, which occurred temp. Edw. IV., the chancellor took the opinions of the judges, and he then decided, that although a statute merchant could not be discharged by payment without acquittance being matter of record, even when the payment was admitted,-that in case of a deed, payment was sufficient in equity, and therefore the chancellor granted a subpoena in that case, which arose on a deed, though contrary to the opinion of the judges whom he consulted (b). In a case 20 James I., a scrivener had the setting forth of the defendant's money; he lent it to the plaintiff, who paid it at the day stipulated in the bond to the scrivener, who became insolvent; the principal sued on the bond; the court decreed that it should be cancelled (c). This case may possibly be referred to mistake or ignorance of fact and of law, as the party paying might naturally conclude that the scrivener was the agent to receive, he having been the agent to [*637] lend; the particular grounds of the decision do not appear. In a case of this description, temp. Edw. IV., namely, where a person had paid off a mortgage without taking an acquittance, the doctrine of the Roman law before adverted to, nec stultis solere succurri, sed errantibus (d), was urged before Stillington, Bishop of Bath and Wells, who was then Chancellor: he replied, Deus est procurator fatuorum (a favorite maxim); and contrary to the opinion of the judges, he ordered the mortgage deed. to be canceled (e).

To the head of relief against mistake or inadvertence, as well as general principles of equity, may also perhaps be referred the jurisdiction which the Court of Chancery entertained from the earliest times, of not permitting a security to be enforced simpliciter where there was a collateral agreement regulating the amount to be recovered but not noticed in the security itself, and which, therefore, could not be adverted to at law (ƒ).

The Court of Chancery also relieved parties from the legal conseqences of their mistakes, or even inadvertence. In one case the plaintiff being son and heir of his father, who died intestate, entered into the house whereof his father died seised in fee, and possessed himself of certain small parcels of the goods of his father who had died intestate, to the

(a) Toth. 143, 38 Eliz.

(b) Brooke, Conscience, 23; 22 Edw. IV. 6; et v. 7 Hen. VII. 12; C. P. C. Append. 558; Crompton, 43 a, et v. supra.

(c) Toth. 273. By the terms of the bond the money was payable to the defendant.

(d) Dig. xxii. 5. 9, § 5; sup. p. 632.

(e) Cary, p. 23, 24.

(f) Bill by Provost and Scholars of King's College, Cambridge, Cal. vol. i. p. 106-7; temp. Edw. IV.

637

Relief of grounds of Natural Justice.

value of 51.; and the defendant having an obligation of 4001. made by the father to him, for performing the covenants of an indenture, sued the son as executor de son tort to his father, and upon the testimony of some witnesses that the plantiff had sold or given away the said small parcels of goods, a verdict passed for the defendant for the whole 400.; thereupon an injunction was granted to stay judgment and all other actions to be commenced by the defendant against the plaintiff, upon the same obligation, until the matter should be heard, or otherwise determined by the court (a).

SECTION IV. Other instances of Control of Legal Rights on Principles of Equity and Natural Justice-Principal and Surety-Election.

We discover in the records of the times which we are now contemplating, the application of the principles of equity and natural justice, to control legal rights in several other instances, besides those which *are mentioned in the preceding chapters, which, though with [*638] many modifications and corrections, appear to have formed the basis of some other heads of the modern equitable jurisdiction. The most important instance is the interference of the Court of Chancery on behalf of the sureties as against the creditor.

A case on this subject occurs in the reign of Edward IV.; a part of the debt had been received by the executrix of the creditor from the principal debtor, and she had agreed that he should have further time to pay the remainder. Bishop Stillington, Chancellor, held, that this agreement to give time to the principal debtor was an election to take him alone as the debtor; if, said the Chancellor, an agreement had been entered into by the creditor and principal debtor, that the debt should be discharged by a debtor of the principal creditor, the surety would have had the advantage of it (b); and the Chancellor discharged the surety.

The doctrine, that time given to the principal discharges the surety, has been followed in the Court of Chancery, not, however, as now settled on the broad ground of Chancellor Stillington (c); but mainly because if the surety were called upon, he would have to enforce payment from the principal contrary to the agreement (d). It is now settled, and here also lex sequitur æquitatem, that a contract to give time to the principal is a good discharge at law, as well as in equity, though a mere promise to give time, without consideration, is not (e). But the Court of Chancery still retains its original jurisdiction (f).

69.

(a) North v. Kelewich, 2 Eliz.; Cary, p.

(b) Brooke, Conscience, 3, 9 Edw. IV. 41; Crompton, 44 a; C. P. Cooper, Append. p. 515; it is also cited by Lord Ellesmere, p. 102. In p. 566, et seq. Mr. Cooper's Appendix, there are some valuable notes of cases on the general law of principal and surety, from the earliest period.

(c) In Skip v. Huey, 3 Atk. 93, the doctrine of novation, as between the surety and the creditor, by his having taken notes in lieu of the original bond, is recognized.

(d) Per Lord Eldon, English v. Darley,2 Bos. & P. 62; Wright v. Simpson, 6 Ves. 714. 734.

(e) V. int. al. Oakley v. Pasheller, 4 Clarke & Finelly, 207. 233; in Chanc. Bell v. Banks, 3 Scott, N. R., 497; Clarke v. Wilson, 3 Mees. & Wel. 208, at law; C. P. Coop. App. 569. 588.

(f)"It is common," said Lord Eldon, "for suitors to apply here to be discharged from bills of exchange from which they might be discharged at law, the original jurisdiction being here; very many injunctions have been

Relief of Sureties-Election.

638

In a case temp. Car. I., a surety was relieved from his obligation on a bond which had been continued for a long time without his privity, he thinking the same to be paid; and there are other cases of a similar nature in that and the preceding reign (a). But it is now settled that *it is the business of the surety, (he being a guarantee for the payment) to see that the principal debtor pays, not that of the [639] creditor (b).

The surety on paying the debt, is entitled, on grounds of general equity, independent of contract, to every advantage which the principal would have had, and to have the benefit of all the creditors' securities that have not been discharged whether he knew of them or not; and the surety, generally speaking, may come into the Court of Chancery, and apply for the purpose of compelling the principal debtor to pay and deliver him from the obligation (c).

In a case cited and approved by Lord Ellesmere, the husband had made a lease of the wife's land, and the lessee being ignoraut of the defeasible title built upon the land, was at great charge therein; the husband died, and the wife avoided the lease at law; but, as it was so much the more worth to her, she was compelled by the Court of Chancery to yield a recompense for the building, and the bettering of the land (d).

Election. It may not be inappropriate here to introduce the doctrine of the Court of Chancery in regard to Election (e), which is founded on natural justice. "The doctrine of Election," says a very eminent and intelligent modern writer, "originates in inconsistent and alternative donations, a plurality of gifts with an intention express or implied that one shall be a substitute for the rest. In the judgment of tribunals therefore whose decision is regulated by that intention, the donor will be entitled not to both benefits but to the choice of either.

"If the individual to whom, by an instrument of donation a benefit is offered possesses a previous claim on the author of the instrument, and an intention appears that he shall not both receive the benefit and enforce the claim, the same principal of executing the purpose of the donor requires the donee to elect between his original and his substituted rights; the gift being designed as a satisfaction of the claim, he cannot accept the former without renouncing the latter.

"Another instance of the application of this doctrine arises where the owner of an estate having in an instrument of donation, applied to the property of another expressions which, if that property were his own

granted to restrain proceedings on bills of exchange, where time given would have af forded a good defence at law, on the rule that sureties are discharged by time given to the principal. We had bills in this court before that doctrine prevailed at law. The fact that that doctrine now constitutes a legal defence, is no reason why the equitable jurisdiction of this court should not be maintained," Hawkshaw v. Parkins, 2 Swanst. 545.

(a) Toth. 279; ibid. 280, temp. Jac. I., bond not put in suit for twelve years. See C. P. Cooper, Append. 565.

(b) Lord Eldon, Wright v. Simpson, 6 Ves. 734; et v. Anon. A.D. 1820; C. P. Cooper, App. 621. It is the same at law, Trent Navigation v. Harley, 10 East, 34. 40.

(c) 1 Eq. Ab. 78; 1 Vern. 189; 2 Bro. 582.

(d) Peterson v. Hickman, cited by Lord Ellesmere, and acted upon in the Earl of Orford's case, 1 Rep. Ch. 3.

(e) V. supra, p. 572, perhaps this subject ought to have been introduced in Chapter viii. Section 1, as it very much depends on Construction.

would amount to an effectual disposition of it to a third person, and *having by the same instrument disposed of a portion of his estate [*640] in favor of the proprietor whose rights he assumed, is understood to impose on that proprietor the obligation of either relinquishing (to the extent at least of indemnifying those whom by defeating the intended disposition he disappoints) the benefit conferred upon him by the instrument, if he asserts his own inconsistent proprietory rights; or if he accepts that benefit of completing the intended disposition by the conveyance in conformity to it of that portion of his property which it purports to affect. The foundation of this doctrine is the intention of the testator and its characteristic in its application to these cases is, that by equitable arrangement effect is given to a donation of that which is not the property of the donor; a valid gift in terms absolute, being qualified by reference to a distinct clause, which though inoperative as a conveyance affords authentic evidence of intention. The intention being assumed, the conscience of the donee is affected by the condition (though destitute of legal validity) not express but implied, annexed to the benefit proposed to him. To accept the benefit, while he declines the burthen is to defraud the design of the donor" (a).

The doctrine of the Court of Chancery as regards election, which will be fully entered upon in the next volume, appears to have been derived from the Roman law (b).

One of the earliest instances of interference (c), by the Court of Chancery to restrain the assertion of a legal claim by reason of its inconsist ency with the intention expressed or implied in an instrument conferring a benefit on the claimant, is the case of Lacy v. Anderson, 24th Elizabeth (d). In that case certain copyhold lands were devised to the widow in lieu of her thirds at law, which she had accepted and enjoyed for twenty years and now sought to recover dower of the freehold lands. The defendant demurred on the grounds that copyhold lands could not be a bar of dower. But the court was of opinion that it was inconsistent with conscience that she should have both, and she was accordingly ordered to answer. We now proceed to another head of jurisdiction, namely, where relief is given in the Court of Chancery under particular circumstances on strictly legal principles.

(a) Mr. Swanston's note (b) to Dillon v. Parker, vol. i. p. 395.

(b) Mr. Swanston, vol. i. p. 396-7, has collected the authorities from the Corpus Juris.

(e) I am still following Mr. Swanston.

(d) Choice Cases in Chancery, 155-6. In

an earlier rather obscure case, Rose v. Reinolds, 23 & 24 Eliz. ibid. p. 147, the court held that dower was barred in equity by the acceptance of a benefit designed as a recompense though not constituting a bar at law, 1 Swanst. 398, et v. supra, p. 413.

Relief on Legal Principles—Suits between Members of Corporations. *641

*CHAPTER XVII.

CASES WHERE THE FORMS OR RULES OF LAW PREVENTED ANY REMEDY BEING GIVEN IN THE PARTICULAR CASE.

THE next class of cases to be considered, in the order proposed, comprises those in which the common law recognized the right or liability, and in ordinary cases gave an effectual remedy, but was prevented, by reason of the general rules or forms which prevailed in the Courts of Common Law, from doing so in the particular case. Thus, though a Corporation had a good cause of action against one of its members, by the rules of law no action could be brought upon it; for any such action must have been brought in the name of the corporation, so that the person sued would have been one of the persons suing; but, as natural justice required that such a case should not be without remedy, the Court of Chancery, which was unfettered by technical rules, afforded a remedy.

One of the earliest bills on record is one by a corporation against the defendants, who had disturbed the corporation in the exercise of their rights, but against whom, being members of the corporation, no action at law would lie (a); the same principle applied to Partners.

The necessity for the interference of the Court of Chancery in these instances, is illustrated by a late case in the Court of King's Bench. One partner committed a fraud on his partners, by issuing bills in the partnership name for his private debt. At law the defrauded partners could not recover the bills or the money without joining their co-partner as a co-plaintiff, producing the inconsistency of a person suing on the ground of his own misconduct. The case, therefore, was left to the Court of Chancery, where, as Lord Tenterden observed, as one might sue the others, this inconsistency. was avoided (b). The jurisdiction in regard to partnership matters generally will be separately noticed.

*So, one executor could not sue another as executor, the office being entire, which rendered a resort to the Court of Chancery [*642] necessary in all such cases; though the demand might, as between. strangers, have been the subject of legal cognizance (c).

To this head also may be referred, in part, the jurisdiction which the court has entertained from a period that cannot be traced, of giving relief as well as discovery, in cases in which instruments giving legal rights have been lost or destroyed; so that, by the rules of pleading at law before adverted to (d), such rights could not be enforced or sustained at law (e); though the general jurisdiction to relieve from the effects

(a) Corp. of Plympton v. Selman, Cal. vol. ii. p. 8. This doctrine still prevails at law, and it is on this ground that one partner cannot sue another; see Bosunquet v. Wray, 6 Taunt. 597. 605, and see the next

note.

(b) Jones v. Yates, 9 Barn. & Cr. 532.538;

and Story on Partnership, 320-22; Collier on Partnership, 174, 193.

(c) Fulbeck, p. 44 a, Choice Cases in Ch. p. 118, 20 Eliz.

(d) Supra, p. 409.

(e) 1 Fonbl. 15; Mitford, p. 113.