Thus, if a testator devises land to trustees to sell for the payment of debts, the assets resulting from the execution of the trust are equitable assets upon the plain intent of the testator, notwithstanding the trustees are also made his executors; for by directing the sale to be for the payment of debts generally, he excludes all preferences; and the property would not otherwise be primarily liable to the payment of simple contract debts. And the same principle applies, if the testator merely charges his lands with the payment of his debts. The marshalling of these assets, as it is termed, in the course of administration, is merely such an arrangement of the different funds, as shall enable all the parties having equities thereon to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction out of a portion of these funds.

As incident to accounts, the courts of equity have also a concurrent jurisdiction with the courts of common law over all dealings in partnership; and this because the remedies furnished by the latter in disputes arising between partners are very inadequate to meet the varied difficulties which ordinarily present themselves in such cases. The courts of law can only award damages for breach of any particular stipulation entered into between the parties. A court of equity can adapt the remedy it affords to the ever-varying exigencies of each particular case. The Court of Chancery has for this reason long possessed an almost exclusive jurisdiction over questions between partners, and has consequently been entrusted with the dissolution and winding up of joint-stock companies; for which purpurpose peculiar powers have been conferred upon it by several

statutes.

5. But it would be endless to point out the several avenues in human affairs, and in this commercial age, which lead to or end in accounts; and I proceed, therefore, to the next head of concurrent jurisdiction, that, namely, which the courts of equity early acquired over almost all matters of fraud; all matters in the private knowledge of the party, which, though concealed, are binding in conscience, and all judgments at law obtained through such fraud or concealment. And this not by impeachment or reversing the judgment itself, but by prohibiting the plaintiff from taking any advantage of a judgment obtained by suppressing the truth; and which, had the same facts appeared on the trial, as now are discovered, he would never have obtained at all. Such cases are the peculiar care of the courts of equity; which, to relieve them, have been said to go not only beyond, but even contrary to the rules of law, although the justice of this remark is more than questionable,

as all our courts have judiciously avoided laying down any minute rules as to what shall, or shall not, constitute fraud.

For besides cases of actual and intentional fraud, the courts of equity recognize what are called constructive frauds, or such acts or contracts as, although not originating in any evil design to defraud or injure another, yet have a tendency to deceive, or to violate public or private confidence, and are therefore deemed worthy of repression equally with frauds of the more gross and palpable sort. Marriage brokage-bonds, for instance, by which one party engages to compensate another for negotiating an advantageous marriage for him, are considered fraudulent, as being injurious to public policy; and against them equity has relieved the party bound, and even assisted him to recover money already paid. Among constructive frauds, the courts of equity will also class a settlement made secretly by a woman, in contemplation of marriage, of her own property to her separate use, without her intended husband's privity; which will be held void, as in derogation of the marital rights of the husband, and a fraud upon his just expectations. And a secret conveyance made by a woman, under the like circumstances, in favour of a person for whom she is under no moral obligation to provide, will be similarly treated. But if she only reasonably provide for her children by a former marriage, such an arrangement will, in the absence of any deception practised on the intended husband, stand good. Conditions annexed to gifts, legacies, and devises in restraint of marriage, if they be of a general nature, are also looked upon as against public policy, and have been placed by courts of equity among constructive frauds.

Bargains in restraint of trade are fraudulent and void, as well in equity as at law, if general and unlimited in their nature; but are not so considered if they only apply to particular places and persons. The former are construed to be a fraud upon the public, as tending to promote monopoly and to discourage enterprise and fair competition. But a contract with another that he shall not carry on a particular trade within a particular limit or for a specified time may be good. All agreements, however, founded upon corrupt considerations and all contracts for buying, selling, or procuring of public offices, are fraudulent and void, as having a tendency to diminish the respectability and purity of officers, and thus to injure the public interest.

Under this branch of jurisdiction may be mentioned two grounds of interference by the Court of Chancery, viz., accident and mistake; the former applying in cases of such unforeseen events, acts, or omissions as are not the result of any negligence or misconduct of the party seeking relief; the latter where something has been done

or omitted, from ignorance, surprise, imposition, or misplaced confidence. Thus in the case of the loss or destruction of a deed or other instrument, the courts of equity will interfere, on a proper indemnity being given, to prevent the accident being taken advantage of by the party liable. So the court will alter and reform a written agreement; when, by mistake, it contains either less or more than the parties intended.

6. The last, and a wholly distinct head of concurrent jurisdiction to which I shall refer, is that exercised by the courts of equity in reference to a widow's claim to dower: in the partition of lands between joint-tenants, tenants in common, or coparceners; ant in settling of the boundaries of estates, where a confusion of these has taken place.

In the first case, the courts will assist the widow by a discovery of lands or title deeds, and remove impediments to her rendering her legal title available; in the partition of estates, the remedy afforded by courts of equity was always so much more effectual than that obtainable under a writ of partition, that the Court of Chancery early obtained, and has long possessed, an almost exclusive jurisdiction: the settling of the boundaries of estates is obviously calculated to prevent a multiplicity of suits, as well as to remedy the mischiefs that must inevitably arise from any confusion arising at the boundaries of property.

III. I now come to what has been called the auxiliary jurisdiction of the Court of Chancery, because it comprises those cases in which this court interposes, in order to enable a party to assert his right at common law.. This is a very large branch of jurisdiction; for a court of equity will always interfere to prevent a party to any proceeding at law taking an inequitable advantage of some circumstance, which must determine the judgment of the court of law, irrespective of the merits of the cause. A defendant in ejectment, for instance, will be restrained from setting up as a defence an outstanding term of years or other interest in a trustee, lessee, or mortgagee; for the party in possession ought not, in conscience, to use an accidental advantage, to protect his possession against a real right in his adversary.

Under this head, also, may be placed the powers exercised by this court in directing the cancellation of documents, and the remedy it affords to suitors, by the proceedings known as bills quia timet, bills of peace, bills for the perpetuation of testimony, and bills of interpleader. Thus,

1. A court of equity will cancel agreements and other instruments, however solemn in their form or operation, which justice or public policy, require to be annulled.

2. It will entertain a bill, quia timet, that is, a bill seeking the interference of the court to prevent a wrong or anticipated mischief; the manner in which its aid is given depending on the particular circumstances of the case. Thus it will appoint a receiver to take rents; or will order a fund to be paid into court; will direct securities to be given up, or money to be paid over; or will confine itself to the mere issue of an injunction or other remedial process.

3. A Bill of Peace is, to some extent, of the same nature. It is brought to establish and perpetuate a right claimed by the plaintiff, which, from its nature, may be controverted by different persons, at different times, and by different actions: or where separate attempts have been already made unsuccessfully to overthrow the same right, and justice requires that the party should be quieted therein. For,

1. A court of equity will not only interfere in this way, to ascertain a right, but will also do so in order to preserve the evidence of it, whenever it is in danger of being lost. If, for instance, witnesses to a disputable fact are old and infirm, a bill may be filed to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man's antagonist only waits for the death of some of them to begin his suit. This is resorted to when lands are devised by will away from the heir-at-law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity: and then, the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his costs, even though he contest the will. This is what is usually meant by proving a will in chancery; and it may be added here, that by statute 5 & 6 Vict. c. 69, a bill in chancery may be filed by any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honours, titles, estates, &c., praying the perpetuaticn of any testimony, which may be material for establishing such claim or right.

5. Finally, the chancery will afford, when necessary, a remedy similar to that now obtainable at law, and which has been already mentioned, under the name of Interpleader. This finishes our inquiry as to the matters cognisable in the courts of equity.

CHAPTER XVIII.

OF THE PROCEEDINGS IN COURTS OF EQUITY.

Bill-Its indorsements-Process thereon-Service-Appearance-Demurrer— Plea-Answer-Oath ex officio-Cross-bill-Interrogatories-DisclaimerBill taken pro confesso-Proof-Hearing-Decree-Execution—in personam -Re-hearing-Bill of review-Appeal-Order of administration— Petitions-Recapitulation.

in rem

Notices

THE first commencement of a suit in chancery is by preferring a bill to the Lord Chancellor in the style of a petition, setting forth the circumstances of the case, as some fraud, trust, or hardship; and praying relief at the chancellor's hands against the defendant. And, if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed, commanding the defendant to cease.

This bill must call all necessary parties, as defendants, before the court, otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its decency and propriety. It must also state the name and address of the solicitor for the plaintiff; it bears an indorsement commanding the defendant to appear eight days after service; and it is then filed with the clerk of records and writs.

Formerly, upon filing a bill, process of subpœna was taken out, which was a writ commanding the defendant to appear and answer to the bill, on pain of 100%. If the defendant, on service of the subpoena, did not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill, he was then said to be in contempt, and successive processes of contempt were awarded against him; the result being either that the bill was taken pro confesso, or the defendant, if taken, was committed to prison, till he put in his appearance or answer, or performed whatever else the process was issued to enforce, and also cleared his contempt by paying the costs which the plaintiff had incurred thereby.

This process to compel appearance and answer has been abolished, and a simpler and shorter proceeding is now resorted to. Instead of the subpoena, which merely gave the defendant notice of a bill having been filed, but afforded him no information of its contents, the bill itself is now served upon the defendant; or under special circumstances, upon some other person, as, for instance, his solicitor or