For equity recognizes not only express trusts, such as those which have been mentioned, but also implied trusts; which, again, are said either to spring out of the presumed intention of the parties, as in the conveyance of property without any consideration, or any distinct use or trust being declared, where it is consequently presumed that the intention was that it should be held by the grantee for the benefit of the grantor,-or, no such presumption of intention being raised, the trust is fixed upon the conscience of the party by operation of law, as where a party having notice of a trust, purchases the property from the trustee, in violation thereof; in which case a court of equity will compel the purchaser to carry out the trust.'

'Trusts have thus become the most extensive branch of equity jurisdiction, their administration constituting in consequence the chief occupation of the Chancery division. So much so, indeed, that special facilities have been provided by several statutes for obtaining the interference of the court, without the necessity of a suit being instituted." Of these perhaps the most important is the statute 10 & 11 Vict. c. 96, usually called the Trustee Relief Act; which enables trustees who have money in their hands, and have reason to suppose that there will be danger or difficulty in the administration of the fund on their own responsibility, at once to discharge themselves from all liability by paying the money into court, the court thereupon undertaking the administration of it amongst the parties beneficially interested, according to their respective rights and interests.'

II. 'The concurrent jurisdiction of the Court of Chancery may be said to embrace, if not all, at least a very large portion of the original jurisdiction inherent in this court in its very nature, or first conferred upon it upon the dissolution, or partition of the powers, of the Aula Regis. It did not take its rise from the introduction of technical uses or trusts, as has sometimes been erroneously supposed. Its original foundation may be more fitly referred to what Lord Coke deemed the true one, fraud, accident, and confidence. For although in many cases of this sort, the

the extended value; but equity looks upon the possession under the elegit as a mere security for the debt, and compels the tenant to account for the profits

which he has actually received, deducting all reasonable charges.

m 13 & 14 Vict. c. 35; 15 & 16 Vict. c. 86; 22 & 23 Vict. c. 35.

courts of common law have long been accustomed or enabled to afford an adequate remedy, still there are many cases of fraud, accident, and confidence, which either courts of law do not attempt to redress at all, or in which, if they do, the redress they afford is inadequate and defective. The concurrent jurisdiction of the Chancery, then, had its origin in one of two sources; either the courts of law, although they had general jurisdiction in the matter, could not give adequate specific and perfect relief, or, under the actual circumstances of the case, they could not give any relief at all. The former occurred in all cases when a simple judgment for the plaintiff or for the defendant did not meet the full merits and exigencies of the case; but a variety of adjustments, limitations, and cross claims were to be introduced and finally acted on, and a decree meeting all the circumstances of the particular case, between the very parties, was indispensable to complete distribution of justice. The latter occurred, when the object sought was incapable of being accomplished by the courts of law; as, for instance, a preventive process to restrain trespasses, nuisances, or waste. The concurrent jurisdiction of equity might therefore be said to extend to all cases of legal rights, when, under the circumstances, there was not a complete remedy at law.'

1. 'The first peculiar remedy thus obtainable in courts of equity is the writ of Injunction, the most ordinary species of which, is that which operates as a restraint upon the defendant in the exercise of his real or supposed rights; and is, therefore, sometimes called the remedial writ of injunction, to distinguish it from the judicial writ, which issues after a decree, and is in the nature of a writ of execution.'

'Of the various matters, however, which may form the subject of injunction, only a few can be referred to here." This writ may be had to restrain a party from making vexatious alienations of property pendente lite; and against tenants for life, and others having limited interests, to restrain them from committing waste. Nuisances, as we have seen, may be the subject of this

n One of the most frequent injunctions applied for was to restrain proceedings at law, either to stay trial, or, after verdict, to stay judgment, or, after judgment, to stay execution, or, if the execution has been effected, to stay the money in the

hands of the sheriff. But no cause or proceeding pending in the High Court of Justice can now be determined by prohibition or injunction; Jud. Act, 1873, s. 24.

beneficial interference, and that whether they are public or private, but more particularly in the latter case. Injunctions, again, may be granted to restrain the negotiation of bills of exchange, the sailing of a ship, the transfer of stock, or the alienation of a specific chattel; to prevent the wasting of assets or other property pending litigation; to prohibit assignees from making a dividend; to prevent parties from removing out of the jurisdiction, or from marrying, or having any intercourse, which the court disapproves of, with a ward. The infringement of a copyright or a patent frequently calls for the exercise of this beneficial process; which may also be had to restrain the fraudulent use of trade marks, or of the names, labels, or other indicia of the makers or vendors of goods and merchandize. Upon the same principle, courts of equity interfere to prohibit the disclosure of secrets communicated in the course of confidential employment.'

2. The want of a more specific remedy than could be obtained in the courts of law, gave a concurrent jurisdiction to courts of equity in a great variety of cases. To instance in executory agreements. A court of equity compels them to be carried into strict execution, unless where it is improper or impossible; the courts of law, until these powers were enlarged by the legislature, could only give' damages for their non-performance. And hence a fiction was established, that what ought to be done shall in courts of equity' be considered as being actually done, and shall relate back to the time when it ought to have been done originally; and this fiction is so closely pursued through all its consequences, that it necessarily branches out into many rules of jurisprudence, which form a certain regular system.

'Thus, every covenant to sell or transfer a thing, if there is no actual transfer, is, by the common law, considered a mere personal contract; and as such, if it is unperformed by the party, no redress can be had except in damages. That is in effect, in all cases, allowing the party the election, either to pay the damages, or to perform the contract at his sole pleasure. But equity deems such a course wholly inadequate for the purposes of justice; and considering it as a violation of moral and equitable duties, it interferes, and requires from the conscience of the offending party

• Metley v. Dowman, 3 My. & Cr. 1; Perry v. Truefitt, 6 Beav. 66; Farina v.

Silverlock, 6 De G. M'N. & G. 214.
P 1 Equ. Cas. Abr. 16.

a strict performance of what he cannot without manifest wrong refuse. And the courts, if necessary, not only enforce the contract, but award such damages to the injured party as he may have sustained by the defendant's misconduct. This jurisdiction is of very ancient date, if not coeval with the existence of courts of equity in England; and the variety of cases in which specific performance will be decreed, is consequently much too great to allow the subject to be entered upon in these elementary commentaries. The most ordinary suit of this kind is for the performance of a contract for the sale of land; which may be brought either by the seller to compel the other party to complete the purchase to which he has agreed, or by the buyer to compel the seller to make a conveyance of the land." But as, in the multiplicity of human affairs, agreements may be made respecting personal acts, personal property, and real property; in all of these cases specific performance may be had, though the extent to which it can be given must be in a great degree determined by the circumstances of each particular case.'

3. The powers of obtaining discovery were, as we have seen, at one time the peculiar feature of the courts of equity. This jurisdiction it was, indeed, which gave them a concurrent jurisdiction with the courts of common law in a large number of cases. Every original bill might formerly, indeed, be properly deemed a bill of discovery, for it invariably sought a disclosure of circumstances relating to the plaintiff's case. But that which was usually and emphatically distinguished by this appellation was, a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds, writings, or other things, in his custody or power, but seeking no relief in consequence of the discovery, although it often prayed for a stay of proceedings at law until the discovery should be made." It has been unnecessary, however, to resort to such proceedings, since the courts of law obtained the same jurisdiction to enforce discovery as the Court of Chancery.'

4. But it was unquestionably' for want of this discovery at law, that the courts of equity early acquired a concurrent jurisdiction with every other court in all matters of account; and, as

a Penn v. Lord Baltimore, 1 Ves. 446; White v. Nutts, 1 P. Wms. 61; Paine v. Mellor, 6 Ves. 349.

r

Alley v. Deschamps, 18 Ves. 228.

Story's Eq. Jur. v. ii. ch. 17.

t 1 Chan. Cas. 57. For settling accounts the common law only provided the action of Account, the proceedings in

incident to accounts, a cognizance of the administration of personal assets," consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators."

This branch of jurisdiction seems to have been thoroughly established about the close of the reign of Charles II., and for a great length of time the usual resort has been to the courts of equity; so that, generally speaking, in cases of any complication or difficulty, or where the assets are not of a legal nature, or the marshalling of them is indispensable to a due payment of the claims on the estate of the deceased, these courts have, practically, an exclusive jurisdiction.'

'The application for relief in the administration of estates is sometimes made by the executor or administrator himself, when he finds the affairs of his testator or intestate so much involved, that he cannot safely administer the estate, except under the direction of the court; but an administration suit is ordinarily instituted by creditors. A single creditor may, indeed, proceed for payment of his own debt, and seek a discovery of the assets for this purpose only; the more usual course, however, is for one or more creditors to proceed, on behalf of himself, or themselves, and all other creditors, who shall come in under the decree;" upon which an account is taken of the assets, and a due division of the estate effected.'

'And in taking this account, courts of equity deal not only with the property of the deceased which is by law directly liable, in the hands of the executor or administrator, to the payment of debts and legacies, but also with all the funds which are, in equity, chargeable with the payment of debts or legacies, and which are called equitable assets; because, in obtaining payment out of them, they can be reached only by the aid of a court of equity. 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

which were dilatory, inconvenient, and unsatisfactory. Hence the assumption by the courts of equity, at a very early period, of jurisdiction in such matters, and as a natural consequence the decline of the remedy at law. This resulted entirely from the courts of equity possessing, in these as in other cases, the VOL. III.

power of discovery; by means of which they were enabled to obtain production of books and documents, and to compel the disclosure of all matters lying only in the knowledge of the parties concerned.' Story's Eq. Jur. v. i. ch. 9.

u

2 Chan. Cas. 152.

Story's Eq. Jur. v. i. ch. 9.

R