of assets were liable for debts, except the rule that real estate descended to the heir was only liable for specialty debts in which the heir was bound.1 But in equity some such rules were necessary, because, in the first place, new forms of ownership and new forms of property were recognized in equity; because, in the second place, the liability of realty to the payment of debts was often effected by testamentary directions of different kinds which subjected it to the payment of debts;2 and because, in the third place, further complications were sometimes introduced by similar directions making it liable to the payment of legacies. Thus we begin to get a number of rules as to the order in which assets are liable for debts and legacies. Further, although equity accepted as its basis the legal rules as to the order in which debts were payable out of the assets, it occasionally interfered to correct these legal rules; and, in the case of property which was not assets at law, it made considerable departures from these rules.3 In the existence of this property we can see the beginnings of the conception of equitable as distinct from legal assets; and both the order in which debts were payable out of these equitable assets, and the manner in which creditors could make them available, were beginning to cause them to differ markedly from legal assets. As a result of these developments, we begin to get various equitable rules as to the marshalling of assets. Equity took the view that, so far as possible, all creditors and legatees should be paid; and so we find that it adopted the principle that, if there is a creditor or a legatee who has two funds to resort to, and a creditor or a legatee who has only one fund, and if the former exhausts the only fund available for the latter, the latter can come upon the fund which the former might have taken. In this period this principle was applied both in favour of legatees and of creditors. But as yet the order in

2 Above 654.

1 Vol. iii 575-576. Armitage v. Metcalf (1616) 1 Ch. Cas. 74-an heir paying recovers from the executor; Cope v. Cope (n.d.) 2 Salk. 449-personal estate of a mortgagor is liable to exonerate the heir; Lord Grey v. Lady Grey (1677) 1 Ch. Cas. 296; Parker v. Dee (1674) 2 Ch. Cas. 200. 4 Vol. v 318-319.

Thus it was said in Solley v. Gower (1688) 2 Vern. at pp. 61-62 that, "the equity of redemption of an inheritance is not assets at law because the estate is forfeited; but the heir having a right in equity, that ought in equity to be liable to satisfy a bond debt"; and that, "where creditors are plaintiffs the usual decree is that the debts shall be paid in course of administration; but that is to be intended of legal assets, and not of assets in equity that are not assets at law."

Anon. (1679) 2 Ch. Cas. 5-in favour of a legatee; in Bullock v. Knight (1682) 2 Ch. Cas. at p. 117 it was said, "It is true that the land does not stand charged with the legacy originally, but there was enough of the personal estate to pay the legacy if it had been so employed; and therefore when that personal estate is employed for payment of debts in ease of the heir and lands, so much of the real estate as is eased by the personal estate shall be liable to the legacy."

7" There being a debt owing to the king, it was ordered that the king's debt

which the different kinds of assets are available for the payment of debts and legacies is by no means clearly worked out, so that the doctrines of marshalling are as yet rudimentary.

In the administration of an estate, very many of the questions arising out of the construction of testamentary instruments were questions between near relatives. They were therefore closely akin to those problems of family law, with which equity was already familiar through its jurisdiction over trusts. In solving these problems, equity made certain presumptions as to the intentions of the parties, which, in the following period, hardened into definite equitable rules. It is to these presumptions that we owe the doctrines of Satisfaction1 and Election; and it is partly to the presumption that that must be regarded as done which ought to be done, partly to the necessity, in administering estates, of adjusting the claims of those entitled to the realty and those entitled to the personalty, that we owe the beginnings of the doctrine of Conversion. During this period all these doctrines have emerged, but they have not as yet been elaborated.

Thus, the conception of the trust, experience derived from attempts to solve many of the problems of family law, and an adequate machinery for the conduct of administrative work-have all combined to give equity a large control over the law as to the administration of assets; and the first and the last of these causes gave it a control over many other branches of the law, which needed a court with the power, both of supervising accounts, and of enforcing liability for fradulent or negligent conduct disclosed by those accounts. We must now turn to some other branches of the equitable jurisdiction which rest upon somewhat different grounds.

Specific relief.

One of the ideas upon which the doctrine of Conversion rests is similar to the idea which underlies the attempt of equity to give specific relief. This is the idea that, so far as possible, a person should be made to do the exact thing which he has

should be satisfied out of the real estate, that the other creditors might be let in to have satisfaction of their debts out of the personal assets," Sagitary v. Hyde (1687) 1 Vern. 455.

1 See Smith v. Duffield (1690) 2 Vern. 177; Duffield v. Smith (1692), ibid 258; Brown v. Dawson (1705), ibid 498.

2 Pile v. Pile (1661-1662) 1 Ch. Rep. 199; Herne v. Herne (1706) 2 Vern. 555. 3 Prideux v. Gibben (1683) 2 Ch. Cas. 144; Annand v. Honeywood (1685) I Vern. 345-money given by a freeman of London to be laid out on land and settled on his eldest son is not an advancement; Randall v. Bookey (1701) 2 Vern. 425rights of the heir in case of a conversion of land into money, where the purposes for which the conversion was directed did not exhaust the money; and cp. Lingen v. Souray (1715) 1 Eq. Cas. Ab. 175 pl. 5.

VOL. VI.-42

contracted to do, or which he ought legally to do.1 In the case of the doctrine of Conversion, equity simply assumes that a legal obligation has been fulfilled and acts accordingly. In the various cases in which it gives specific relief it is obvious that legal duties, contractual or otherwise, have not been fulfilled; and equity attempts to secure their fulfilment. As in the preceding period, we can divide these cases under the three heads of contract, property, and tort.

The various forms of specific relief given in relation to the law of contract were, as yet, hardly distinct. The court, as in the preceding period, both granted specific relief in the case of executed contracts, and decreed the specific performance of executory contracts.3 There is some evidence that, till the time of Lord Somers, equity did not grant the specific performance of executory contracts, unless the plaintiff had first recovered damages at law. There was clearly a tendency to adopt this principle; but it was negatived by the House of Lords in 1728. Obviously, if it had been adopted, the equitable doctrine of part performance, of which we see signs at the close of this period, could never have arisen, because, for the breach of contracts which were unenforceable by reason of non-compliance with the statute of Frauds, no damages could have been recovered. At the same time, the existence of a tendency to adopt this principle emphasizes the discretionary character of the specific relief given by equity, and thus tends to hinder the growth of clear rules as to the kinds of contracts in which the court will give it. On the other hand, the fact that the grant

1See Tailby v. Official Receiver (1888) 13 A.C. at p. 546 per Lord Macnaghten ; Fry, Specific Performance (5th ed.) 33-34, points out that that doctrine may later have had some influence on the law on the subject of specific performance; dealing with the rule that both vendor and purchaser in a contract to buy land may enforce specific performance, he says, "The doctrine of Equity with respect to the conversion of the land into money, and of the money into land upon the execution of the contract, and the lien which the vendor has on the estate for the purchase money, and his right to enforce this by the aid of the court, are additional reasons for extending the remedy to both parties." 2 Vol. v 321.

For this distinction see Wolverhampton and Walsall Railway Co. v. London and North Western Railway Co. (1873) L.R. 16 Eq. at p. 439 per Selborne, L.C.; cp. Tailby v. Official Receiver (1888) 13 A.C. at p. 527 per Lord Macnaghten.

*Dodsley v. Kinnersley (1761) 1 Amb. at p. 406 per Clarke, M.R.; cp. Ashburner, Equity 4 n. n.

Two of the cases cited in support of it are Hollis v. Edwards (1683) 1 Vern. 159; Marquis of Normanby v. Duke of Devonshire (1697) Freeman Ch. 216; both are cases in which part performance was alleged to get out of the statute of Frauds; possibly the court thought that it was for the courts of common law to determine the enforceability of the contract by construing the statute; they seem to be quite contrary to Butcher v. Stapeley, below 659 n. 4; probably the practice was conflicting; but the principle was applied in Bettis worth v. Dean of St. Paul's (1726) Cases t. King 66 at p. 69.

S.C. I Bro. P.C. 240.

7 Above 393; below 659.

8 Cp. Gardener v. Pullen (1700) 2 Vern. 394; Cud v. Rutter (1719) 1 P. Wms. 570.

of this relief was discretionary made it possible for equity to look closely at the conduct of the parties, and to insist that it should be fair and reasonable.1 It was partly this insistence upon a high standard of honesty which was at the root of the equitable modification of the statute of Frauds, which developed into the doctrine of part performance; and partly the tendency of equity judges to restrict the operation of a statute which, being designed to meet defects in common law procedure, was much less useful when applied in courts of equity. From the first, equity insisted that the statute must not be made a cloak for fraud; and some of the earlier cases in which the plea of the statute was overruled on the ground of part performance, seem to proceed on the ground that, in the circumstances, it would be something very much like fraud on the part of the defendant not to carry out his contract.*

Generally the specific relief given in cases connected with the law of property was very similar to that given in the preceding period. The practice of issuing injunctions to quiet possession, after the title to property had been in issue in several actions of ejectment, was finally sanctioned by the House of Lords in the case of The Earl of Bath v. Sherwin. In that case there had been five trials at Bar, which had all ended in favour of the appellant. A perpetual injunction against further proceedings was granted; and thus equity helped to remove the chief remaining defect of the action of ejectment-its want of finality. Agreements between lords and commoners as to inclosure, or stinting the common, were enforced. Underlessees were sometimes relieved from a forfeiture on terms.10 In one case, in which a house had been taken by the Parliament

8

1 1 Eq. Cas. Ab. 17.

2 Above 393.

3 Above 393; see the remarks on the case of Mallet v. Halfpenny (1699) 2 Vern. 373 in Bawdes v. Amherst (1715) Prec. in Chy. at p. 404.

Butcher v. Stapeley (1685) 1 Vern. 363-a parol agreement for purchase of land, of which possession had been delivered, was ordered to be executed as against Stapeley, a purchaser for value with notice; the lord chancellor said that, "as possession was delivered according to the agreement he took the bargain to be executed, and that Stapeley had notice of it, and that it was a contrivance between the defendants to avoid the bargain"; Lester v. Foxcroft (1700) Collis 108; but as yet the basis and limitations of the doctrine are by no means clear, above 658 n. 5; below 660-661.

Vol. v 323-324..

(1709) 4 Bro. P.C. 373; such an injunction would not be granted after one trial only, Fitton v. Macclesfield (1684) 1 Vern. at p. 293; it is referred to as an established practice in a letter to the Marquis of Halifax in 1680, Foxcroft, op. cit. i 229.

8 1 Eq. Cas. Ab. 103 pl. 4 and 5.

7 Pt. II. c. 1 § I. * Delabeere v. Beddingfield (1689) 2 Vern. 103-the court would even override objectors, "It is a proper and natural equity to have a stint decreed; and though one or two humour-some tenants stand out and will not agree, yet the court will decree it; but it is otherwise as to an enclosure."

10 Webber v. Smith (1689) 2 Vern. 103.

during the Great Rebellion and used as a hospital for the troops, the chancellor said that, if he could, he would relieve against the obligation to pay rent.1 In the two well-known cases of Pusey v. Pusey 2 and the Duke of Somerset v. Cookson, the court interfered to order the return in specie of a chattel of peculiar rarity.

The cases in which injunctions were applied for to stop the commission of torts do not materially differ from the cases which arose in the preceding period. The most common cases are those in which an injunction was applied for to prevent the commission of waste.5

Relief against the rigidity of the law.

As in the preceding period, specific relief and relief against the rigidity of the law, shade off into one another. But some of the cases falling under the latter head in the preceding period, have begun, in this period, to develop into independent heads of equitable jurisdiction. Instances are the law as to mortgages, and the law as to choses in action. A good many cases were still left but they were being systematized and reduced to rule. We can group these cases under the following heads: (i) The conduct of the parties; (ii) The law of evidence; (iii) The law of property; and (iv) The law of contract.

(i) The court relieved purchasers against accident and mistake. Thus an obligee of a bond accidentally lost was relieved in equity, and allowed to recover against the surety; and, on similar grounds, it relieved against obvious clerical errors, e.g. where in a bond to pay £200, £40 was inserted as the penalty instead of £400. It relieved also against fraud. Under the head of fraud it included both kinds of sharp practice, whether it took the form of suppressio veri or suggestio falsi, and also undue influence,9 The mere fact that a person had made a bad bargain would not

1 Harrison v. Lord North (1667) I Ch. Cas. 83.

2 (1684) 1 Vern. 273-decided partly on the ground that the horn was an heirloom -"if the land was held by the tenure of a horn . . . the heir would be well entitled to the horn at law."

3 (1735) 3 P. Wms. 390.

5

i Eq. Cas. Ab. 399-400.

4 Vol. v 324-325.

6 Underwood v. Staney (1666) I Ch. Cas. 77-78-"It was in the debate of this case said, that if a grantee in a voluntary deed, or an obligee in a voluntary bond, lose the deed or bond, they should have remedy against the grantor or obligor in equity. Tamen quære. But if so, no mistake in the principal case, where the bond was for money lent; and though the surety had no advantage, yet the obligee had parted with his money, and loss is as good a consideration for a promise as benefit or profit; " for a refusal to rectify an omission in a voluntary conveyance see Lee v. Henley (1681) 2 Vern. 37-38; below 662 and n. 6.

7 Sims v. Urry (1676) 2 Ch. Cas. 225.

8 Gee v. Spencer (1681) 1 Vern. 32 n. 1; Jarvis v. Duke (1681) 1 Vern. at p. 19. 9 Vere Essex v. Muschamp (1684) 1 Vern. 237.