The right of a Court of Equity to decree an Account and payment of Tithes, at the suit of a Person claiming such Tithes, must, as before observed, be grounded on a clear, unquestionable, legal right to Tithes in the Plaintiff, or in some person in Trust for him; the right to the Account being merely consequential to the legal right to the Tithes (t): and Courts of Equity have therefore constantly made a distinction between those cases in which the Title of Plaintiff to the Tithes claimed is not generally disputed; as, where it is objected only that the Lands from which they are claimed are exempt, or discharged from payment of Tithes; or, that the Tithes claimed are not payable in kind, but are to be satisfied in some other manner, as by payment of a modus, or composition real; and those cases, in which the Title to the Tithes claimed is denied to the Plaintiff, and a Title is set up in another Person. In the first description of cases, the Defendant claiming the benefit of an exemption or discharge, or of a modus, or real composition, acknowledges the original Title of the Plaintiff, as alleged by him, but qualifies that Title either by an absolute discharge from payment of the Tithes demanded, or by a right to satisfy that demand otherwise than by payment of the Tithes in kind. In the second description of cases, the existence of that Title to the Tithes in question, which the Plaintiff claims, is absolutely and totally denied, and it is objected, that the Title is in some other Person: and in these cases, if the Person in whom the Title is thus stated,

(t) Strutt v. Baker, 2 Ves. Jun. 628; and see Foxcraft v.

Bro. P. C. 110, 111. Tomlins's
Edition,

has had pernancy of the Tithes claimed, the Bill is in effect an Ejectment Bill, and is to be treated like other Bills in Equity, which may be termed Ejectment Bills, in regard to which, the ordinary practice is, not to make any decree whatever except for the purpose of assisting the Trial of the Title at Law, where such assistance is necessary (u).

If a Rector, Impropriator, or Vicar, file a Bill for Tithes, they must wave all penalties and forfeitures (x) under the Statute (y), for otherwise the Defendant would not be bound to answer; but in a Bill for the single value of Tithes it is not necessary expressly to wave the treble value (z), the praying of the single value being considered as a waver of the penalties. A waver in Equity is no bar at Law, but only a ground for the interposition of a Court of Equity, which would grant an Injunction against suing for the penalty, as as well upon an implied, as upon an express, waver (a).

(u) Vid. Garnons v. Barnard, 7 Bro. P. C. 110, 111, Tomlins's Edition; Gwillim's Tythe Cases, p. 1470. (x) 1 Vern. 60.

(y) 2 and 3 Edw. 6.

(z) Wools. v. Walley, 1 Anstr. 100; and see Bunb. 193.

(a) 1 Anstr. 100.

CHAP. III.

FRAUD.

UNTIL the abolition of the Court of Star-Chamber, by Statute, (16 Car. I. c. 10) the Chancellor does not appear to have exercised any very extensive jurisdiction in cases of Fraud. In that Court the plaintiff was not only relieved, but the defendant was punished for his fraudulent conduct; so that recourse was generally had there in cases of Fraud.

When it is considered, what a variety of transactions in Civil matters may 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 party, and of relieving against, some conception may be formed of the very extensive nature of the Chancellor's Jurisdiction on that most fruitful head of Equity.

Before we proceed to the consideration of cases founded in actual Fraud, it is proper to state the principles that have been laid down with a view to prevent Fraud. The doctrine on this subject may be classed under the following heads:

I. Purchases by Trustees and others, in fiduciary situations, of Trust Property.

II. Transactions between Attorney and Client.
III. Sales or Agreements by expectant Heirs.
IV. Gifts by Ward to Guardian.

VI. Bills of Peace.

VII. Bills of Interpleader.

VIII. Bills of Certiorari.

IX. Bills to perpetuate Testimony.

x. Bills of Discovery.

XI. Bills Quia Timet.

XII. Bills for the delivery up of Deeds, or for securing them, or the delivering up of specific Chattels.

XIII. Bills to enforce Contribution.

XIV. Bills in Cases of Dower and Partition.

XV. Bills to establish a Modus.

XVI. Bills to marshal Securities.

These Subjects will be considered in succession.

1. Purchases by Trustees and others, in fiduciary situations, of Trust Property.

With a view to prevent Fraud (a), a trustee is not permitted to become a purchaser from himself, of part, or the whole, of the Trust Estate (b); nor can the Solicitor of a Trustee purchase the Trust Estate (c). Commissioners (d), Assignees (e), and Solicitors (ƒ), under a Commission of Bankruptcy, whether bidding for themselves or others, are within the operation of

(a) Lister v. Lister, 6 Ves. 632.

(b) Herne v. Meeres, 1 Vern. 465. Ayliffe v. Murray, 2 Ark. 59. Ex parte Bennett, 10 Ves. 3. Coles v. Trecothick, 9 Ves. 234. Morse v. Royal, 12 Ves. 372.

(c) Downes v. Grazebrook, 3 Meriv. 200; and White v. Fussil, before V. C. Leach, 29 June 1818.

(d) Ex parte Hughes, 6 Ves. 617. Ex parte Morgan, 12 Ves. 6. Ex parte Bennett, 10 Ves. 381.

(e) Ex parte Lacey, 6 Ves. 627. York Buildings Company v. Mackenzie, 8 Browne's P. C. 42. Tomlins's Edit. Ex parte Bennet, 10 Ves. 381. Ex parte Reynolds, 5 Ves. 707.

(f) Ex parte Bennett, 10 Ves. 381, and see 12 Ves. 372.

this rule, and are not allowed to purchase the bankrupt's Estate. So, too, a Committee, it seems, or the Keeper of a Lunatic (g) is not permitted to purchase the Lunatic's Estate; nor can an Executor purchase his Testator's Effects (h). Governors of a Charity, for the same reason, are not allowed to take leases of the Charity Lands (i); and the rule is applied as between Principal and Steward (k), and also to an Agent (1); and as it seems in alienations between Mortgagor and Mortgagee (m); but a Mortgagee may, under a Decree, or a Sale in Bankruptcy, buy the mortgaged Estate, and in the latter case, come in under the Commission for the remainder of the mortgage Money not raised by the Sale (n), provided he has first obtained an order for leave to bid at such Sale (0). A Residuary Legatee has not such an Interest as prevents his purchasing under a Decree (p).

Lord Hardwicke, in Whelpdale and Cookson, determined that a Trustee could not even buy at a Sale by Auction (q); and that decision has been followed (r).

(1) Attorney-General v. Lord Clarendon, 17 Ves. 500.

(k) Ormond v. Hutchinson, 13 Ves. 47. Beaumont v. Boultbee, 5 Ves. 485. 7 Ves. 599. (1) Lowther v. Lowther, 13 Ves. 95. Watt v. Grove, 2 Sch. & Lefr. 492. Crowe v. Ballard, 2 Cox 253.

(m) See Webb v. Rorke, 2 Sch. & Lefr. 673. Gubbins

(q) 1 Ves. 9; and see Decree in that case in 5 Ves. jun. 682; and in Belt's Supp. to Vesey, P. 8.

(r) Lister v. Lister, 6 Ves. 631. Sanderson v. Walker, 13 Ves. 602. In ex parte Bennett, 10 Ves. 393, Lord Eldon is reported to have said that Lord Hardwicke, in Whelpdale