The Court of Common Pleas often interferes to amend a Fine, or a Recovery, where there has been a clear mistake; but that court has refused to alter a recovery by substituting one joint tenant to the præcipe for his companion (t). And where the tenant should have appeared in Hilary term, and he did not appear till Easter term, the Court would not permit the appearance to be entered as of Hilary Term (u); and Gibbs, C. J. observed, "It would be better if indulgences of this description were granted in no case; but certainly it should be done but very rarely (x).

Where a Deed is made on good consideration, (it is different where the Conveyance is voluntary (y), unless it be in favour of a Wife, or a legitimate Child) (*), Equity will supply a defect in the execution (a); the Court having equal Jurisdiction to relieve in respect of a plain mistake in contracts in Writing, as against frauds in Contracts: so that if reduced into Writing contrary to the intent of the Parties, on pro

and see dictum in Williamson v. Codrington, 1 Ves. 514.

(z) Vane v. Fletcher, 1 P. Wms. 354. Bonham and New combe, 2 Vent. 365. Thomson In v. Attfield, 1 Vern. 40. Cold v. Corbett, Prec. Ch. 8, the court seem to have thought it had a discretion as to relieving a mistake in a voluntary conveyance, sed qu. That the child must be legitimate to have relief, see Watts v. Bullas, 1 P. Wms. 60.

(a) Anon. 2 Freem. 256; but see the doubt expressed in Halton's case, 2 Leon. 2d part p. 8.

per proof, that will be rectified (b). By proper proof, is meant, reasonable presumption," as some say (c), and as others have said, "strong irrefragable evidence (d)." And it is an essential ingredient to any relief under this head, that it should be on an Accident perfectly distinct from the sense of the Instrument (e).

If a Bargain and Sale be made, and it is not enrolled within six months, Equity will compel the Vendor to make a good title by executing another Bargain and Sale, which may be enrolled (ƒ).

If a defective Conveyance be made, as a Mortgage in Fee by way of Feoffment, without livery, Equity will make good this defective Conveyance, and this, though, after such incomplete Feoffiment, a Judgment is confessed to a third person, whose debt did not originally affect the Land (g). Where a Rent was settled upon a Woman by way of Jointure, but she had no power of distress, or other remedy at Law, the payment according to the intent of the Conveyance, was decreed in Equity (h). And a defective Conveyance will not only be made good against the Party, but also as against his Assignees (i) or Representatives (k).

Cas. Abr. 1 vol. p. 320, cited arg. 1 P. Wms. 279. S. C. under name of Burgh v. Burgh, Finch 28; but see what Mr. Fonblanque observes on this case, Treatise of Equity, 1 vol. p. 37, in note, Edit. 2nd.

(h) 1 Ch. Rep. 5.

(i) Taylor v. Wheeler, 2 Vern. 564; and see 1 Atk. 162. Cripps v. Jee, 4 Bro. C. C. 472.

(k) Moree v. Faulkener, 1 Anst. 14.

to

pay

Where a Copyhold was mortgaged, but the Surrender not having been presented within the time limited by the Custom, was void, and the Mortgagor afterwards became a Bankrupt, such defective Surrender was, on a Bill filed against his Assignees, in effect made good; for the Assignees were directed the Plaintiff his Principal, Interest and Costs, or to be foreclosed (1). Cases proceeding on the same Principle are numerous (m). But where certain formalities in Conveyances are required by Act of Parliament, and these are omitted, the Court cannot remedy the omission: as, for instance, where the Instrument wants the necessary stamps (n). So, where a Bill of Sale of a Ship was made as a collateral Security, and the Papers, &c. were delivered, but there was no recital in the Bill of Sale of the Registry, as is required by the 26th Geo. III. c. 60, Lord Thurlow held it could not be supplied in Equity (0), 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 (p).

Mistakes in Deeds are sometimes remedied by the construction given to them; for it is a general Principle, that where a Man has expressed a clear

Taylor and Wheeler, 2 Vern. 564. S. C. Salk. 449. (m) See Dale and Smithwick, 2 Vern. 151.

(n) See what is said in Toulmin v. Pries, 5 Ves. 240.

(0) Hibbert against Rolles

ton, 3 Bro. Ch. Cas. 571; and see Speldtv. Lechmere, 13 Ves. 588. Ex parte Yallop, 15 Ves. 60.

(p) See what Lord Eldon says in Curtis and Perry, 6 Ves. 745, and Mestaer and Gillespie, 11 Ves. 626.

and manifest intention to dispose of his Estate, and he mistakes the mode of so doing, yet, if the instrument can be considered as valid, in point of substance, so as to effectuate the intent of the party, its informality shall be overlooked, and the deed take effect, if by law it can (q): as where a man makes a feoffment to a relation and his heirs, and he neglects to make livery of seisin, it is obvious that he meant his relation should take it by a common conveyance; but he cannot do so for want of that formality, and therefore it shall operate as a covenant to stand seised, and the estate passes by the Statute of Uses, and not by the Common Law, so as to support the intention of the party, ut res magis valeat quam pereat (r); but it has been held, that if a Trust of Lands be limited to A. his Heirs and Assigns, or to such as he or they shall appoint, and cestui que trust devises these Lands by a Will, attested by two Witnesses only, the Will is void; and it will be allowed to operate as an Appointment (s).

Conveyances by Bargain and Sale enrolled, which (money making no part of the consideration) could not operate by way of bargain and sale, have been allowed, in respect of the intent of the parties, to operate by way of covenant to stand seised; the consideration allowing of such construction (1)..

(q) The leading case on this head is Crossing v. Scudamore, 1 Ventr. 137. Franklin v. Franklin, E. T. 7 Geo. II. 1733, MS.

cent, 4 Bro. C. C. 382. Thompson v. Attfield, 1 Vern. 40.

(s) Wagstaff v. Wagstaff, 2 P. Wms. 258.

(t) See 2 Fonbl. Eq. p. 47,

(r) Habergham against in- n, and the cases there cited.

Defects in the Execution of Powers have, from a very early period (ú), been relieved against in Equity, and in Equity only (a), and upon the same Principle upon which relief is given in the case of defective Surrenders of Copyholds (y), which will be more particularly noticed hereafter.

If, therefore, a Power is executed for a valuable consideration, but defectively, a Court of Equity will supply the defect, and this against a Remainder-man, or one not claiming under the Power (≈). It would be otherwise if the execution were voluntary (a).

So, where a Power was to be executed in Writing, in the presence of three Witnesses, and it was executed, in consideration of Marriage, in the presence of two Witnesses only, the defective execution was supplied (b).

In an early case, where one having a Power to grant a Lease in possession, granted, for a valuable consideration, a Lease to commence in futuro, Equity relieved (c); but in a very recent decision it was held that such a Lease is bad in Equity (d), as it certainly is, at Law (e).

So, where a Power was given to settle on a wife,

(u) See Pollard v. Greenvil, 1 Cha. Cas. 10.

(x) Gooday v. Butcher, 9 Ves. 394. The contrary doctrine in Zouch v. Woolston, a Burr. 1136, has long been considered as untenable. See 1 Sch. & Lefr. 66.

(y) Watts v. Bullas, 1 P. Wms. 60. Chapman v. Gibson, 2 Bro. C. C. 229.

(z) Cotter v. Layer, a P. Wms. 623.

(a) Cotter v. Layer, 2 P. Wms. 624.

(b) Wilkie v. Holmes, stated in 1 Sch. & Lefroy, p. 60. n. a. S. C. 1 Dick. 165. Wade against Paget, 1 Bro. C. C. 368.

(c) Pollard v. Greenvil, 1 Chan. Cas. 10.

(d) Bowes v. Waterworks Company, 3 Madd. Rep.

(e) Doe v. Calvert, 2 East

376.