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That case was decided long after the case of Zouch v. Woolston, in 2 Bur. 1136(a.) Mr. Dunning had said in that case, “. that the execution of a power should have the same “ construction in courts of law and of equity;" this position is perfectly correct. Lord MANSFIELD had on his mind prejudices derived from his familiarity with the Scotch law, where law and equity are administered in the same courts, and where the distinction between them which subsists with us is not known, and there are many things in his decisions which shew that his mind had received a tinge on that subject not quite consistent with the constitution of England and Ireland in the administration of justice. It is a most important part of that constitution that the jurisdictions of the courts of law and equity should be kept perfectly distinct; nothing contributes more to the due administration of justice. And though they act in a great degree by the same rules, yet they act in a different manner, and their modes of affording relief are different; and any body who sees what passes in the courts of justice in Scotland, will not lament that this distinction prevails. But Lord MANSFIELD seems to have considered that it manifested liberality of sentiment to endeavour to give the courts of law the powers which are vested in courts of equity ; that it was the duty of a good judge ampliare jurisdictionem, This I think is rather a narrow view of the subject ; it is looking at particular cases rather than at the general principles of administering justice, observing small inconveniences and overlooking great ones, On this argument of Mr. Dunning, Lord MANSFIELD said that "there was good Isense in what he said," and that “whatever is a good

power or execution in equity, the statute of uses makes

good at law;" very true. But the statute does not make gond at law what was not good in equity, but which a court of equity by its peculiar mode of acting will make good, This distinction Lord MANSFIELD was much disposed to

(e) Anno Dom. 1761.


overlook : forexample; he considered contracts for leases to be leases, (a) and was followed by Mr. Justice BULLER(6). Great inconveniences ensued, which are now happily got rid of (c). A court of equity makes good a contract by de



(a) Vide Weakly ex dem. Yea v. Bucknell, Cowp. 473; Goode title v. Bailey, ibid. 587.

(6) 2 Term Rep. 581.

(c) The authority of the case of Weakley er dem. Yea v. Bucknell, was doubted by Lord THURLOW, in Lowther v. Andover, 1 Bro. Ch. C. 397 (A. D. 1784) the doctrine that an equitable title was a good defence in ejectment was much shaken by the cases of Doe v. Staple, 2 Term Rep. 684, and Doe v. Clare, 2 Term Rep. 739 (A. D. 1788). It is fully established that the legal title must prevail in ejectment in Doe v. Wharton, 8 Term Rep. 2. Vid. Doe er dem. Shewen v. Wroot, 5 East 132, and the note at the end of that case.

In Ireland, although the decisions in Cowper were followed, yet that their authority was very reluctantly admitted by gentlemen of the longest experience and most extensive practice at the bar, inay be collected from the following case.

COMMON PLEAS, May 4th, 1796.

Lessce of Lord MASSEY V. TOUCHSTONÉ. "THIS was an ejectment on the title, tried at Limerick before the Right Hon. Lord YELVERTON. Counsel for the defendant having admitted the title of lessor of the plaintiff, gave in evidence an unstamped writing to the following purport :

“We propose to pay the Right Hon. Lord Massey, for the lands “of Knockmore, fourteen shillings per acre plantation, and will 6 bind ourselves down to till four acres of the farm yearly, and to

manure the same with one hundred barrels of lime to each acre, 6 and to take no more than two crops of potatoes and one crop of

corn thereout, and let it out with corn quite level. We will plant

yearly five hundred of such trees as his Lordship will approve of, “ and preserve the same under forfeiture of the lease; the plant“ing of said trees to commence next October on getting a lease of three lives. And will build a good farın slate house on such

part of the farm as his Lordship will appoint against the first

day of Aug. 1796, under forfeiture of the lease, and will preserve “the game, and not shoot, destroy or kill the game of any kind on * that or any part of his Lordship's estate under forfeiture of the "lease ; and will permit the labourers to remain in the cabins

until the first day of September next, except one cabin, which “ will be at present required for the use of the farm. Edward "Bennet, Hugh Touchstone --April 15th, 1793.

66 In addition to the within proposal, we do hereby promise to * give notice to his Lordship at the time of our turning out the


creeing an actual lease ; a court of law cannot do so. Lord MANSFIELD inclined to hold a party bound by a contract not



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“ within mentioned lime, and also at the time of our planting the us within mentioned trees, and engage not to turn up more acres " than we shall lime as aforesaid, and if we should in any year -sonit to turn up four acres to tillage for the purpose of reclaim.

ing and manuring as aforesaid ; that in such case we shall the next and following year turn up eight acres, so as to turn up and

manure four acres yearly as aforesaid, during our term or until “the whole is reclaimed, as also to quick the bounds and all the “ ditches on both sides with white thorn. Edward Bennet, Hugh « Touchstone.

“ Memorandum of agreement between the Right Hon. Lord “ Massey and Mr. Bennet of Hounds Court and Mr. Hugh Touch"stone of Bostenstown, that his Lordship hereby agrees to set the “ farm of Knockmore to the said Bennet and Touchstone jointly " and severally for the term of three lives to be named by them, « at the rent and on the terms mentioned in the within and above

proposal, to commence on the first day of May next. Leases to be perfected at the request of either party. In witness whereof “the parties have hereto signed their names, and his Lordship his “ title of honour, this 29th April, 1793.-Massey, Edward Bennet, Hugh Touchstone. Present, Nassau Massey."

Defendant's counsel also proved the acceptance of rent by the lessor of the plaintiff from the defendants, and rested their defence. . It was argued by counsel for the plaintiff that the above recited article did not give the defendant such a legal estate as entitled him to retain the possession, as being merely equitable and executory: but the noble judge on the authorities cited, was of opinion that it was a sufficient defence, and under his direction a verdict was had for the defendant.

A conditional rule to set aside the verdict having been obtained, it was argued on the 3d and 4th of May, and on the latter day, the judges delivered their opinions, seriatim, that the rule to set aside the verdict ought to be made absolute.

Lord CARLETON, Chief Justice, went upon the ground (in which he was followed by Mr. Justice CROOKSHANK and Mr. Justice Fi. NUCANE) of the distinction between a clear and a doubtful equity, shewing that the title of the defendant in this case was of the latter description, and that even if in a court of equity it was by no means clear that he would be entitled to a decree for a specific execution ; and this ground being sufficient to support their opinions, they declineil giving any opinion on the question, whether if there had been a clear equity for the defendant, it would have availed him. Mr. Justice KELLY, (who in the course of the argument had expressed a wish that the facts of the case should be thrown into the shape of a special verdict) delivered his opinion as follows:

KELLY, Justice. I could wish that the learned Lord who deliv. ered his opinion upon this case at Nisi Prius, had had an oppor.


to set up his legal title in ejectment, and so in many other instances; forgetting what he himself had been familiar with



tunity of considering his own judgment; and I am sure he would have decided this question in another manner ; but he had the authority of a very great judge and it misled him. Let us con,sider a moment whether it would not subvert all the rules of discrimination between law and equity, if we were to say that this verdict ought to stand. Lord CARLETON with his usual cautious discretion has declined entering into a consideration of the authorities on which the argument is founded; but I will not do so; for the very

first time I ever read that case of Yea v. Bucknell in Cowper, I was astonished at it, and I saw that it would be a decision productive of very great mischief. It is admitted in this case that the plaintiff has a clear legal title, and that the defendant has no legal title, but merely an equitable one : then it becomes a question, (and till the decision in Yea v. Bucknell, it never was a question) whether a legal title should succeed in a court of law against no legal title. I have some experience in these courts, and before Cowper's Reports were published in this country, Í will venture to say that no attempt to set up an equitable defence in ejectment, where the plaintiff's title was clear at law, was ever made. See the consequences that follow from the practice. The defendant has an equitable title only; if the plaintiff cannot recocover at law, that title will remain a good defence to the defendant for ever, in every ejectment brought by the plaintiff, unless the court of law shall make itself a court of equity : if the defence is good now, it will be good twenty years hence: then see the situation of the lessor of the plaintiff-he cannot recover; the defendant holding possession, pays him no rent, names no lives, and yet remains in possession unless the plaintiff goes into a court of equity ; was there ever an instance where a man who wanted a specific execution was permitted to drive the person having the legal title, into equity where a man having a legal title was forced into equity against a person having barely an equitable title? In this very case for example, see how principle would be subverted. Suppose the defendant were driven into a court of equity; he might go thither with a clear case to entitle him to relief; but if the plaintiff is driven into equity, the defendant lies under no difficulty if he can only prove his article, whereas the plaintiff cannot succeed, for a court of equity will dismiss his bill, and tell him, “your title is at law; go into a court of law;" and then it will come to this, that the plaintiff will not be relieved either at law or in equity; at law, this article bars him ; and hav. ing a title at law, he cannot go into equity.

I have heard a distinction mentioned (it is in one of the English cases) between a clear equity and a doubtful equity. I would be glad to know how it is possible for a judge sitting in a court of law to say that any thing is a clear equity. That is a matter that depends on all the facts of the case, and not on the instrument: a judge in a


in his practice in equity, and that he would endanger half the titles in the kingdom.



Mr. Justice Buller held, that when a mortgage term had been once assigned in trust to attend the inheritance, the owner of that term could not make it a mortgage term again, and in consequence he drove the mortgagee into a court of equity and produced that very mischief which Mr. Justice Wilmot in Zouch v. Woolston considered to be a very grievous one; Lord MANSFIELD is represented by the reporter in the case of Zouch v. Woolston, as having said that after the “ statute of uses, courts of equity reasoned as they would “ have done if that statute had not been made. “ whatever is an equitable ought to be deemed a legal execu“ tion of a power; for there can be no circumstance to affect

a remainder-man personally, in conscience, when a power " is not duly executed, any more than the issue in tail or the successor of an ecclesiastical

if a lease is not duly "made." Ifthese words really dropt from Lord MANSFIELD he must have totally forgotten all that passed while he was in practice in courts of equity. This would overturn the case

And yet,


court of law has nothing to do with equity ; he must leave it to its proper tribunal ; lie cannot form such an opinion without going into all the circumstances of the case; and would a court of law permit a defendant to go into all the evidence in the case necessary to shew that he had what is called a clear equity ? for instance in this case, to prove that all the particulars of this article were performed, see what a scene of evidence you must go into. Further, the judge at Nisi Prius in this case, could not sey the defendant's title is equitable, unless he lets the plaintiff go into a case to shew that it is not; then the plaintiff must come prepared to examine witnesses as to every circumstance in the equitable agreement. Thus the judge makes himself a judge of equity in a court of Nisi Prius, and leaves it to the jury to determine whether the defendant is entitlexi to a specific execution. I have thrown out this, because in my opinion the decision in Cowper has been productive of a great deal of mischief, and this is a defence which is attempted in every ejectment.

I concur entirely with Lord CARLETON.

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