1802.

BOND

V.

HOPKINS.

decree upon sequestration was had against the heir of Elizabeth M'Geough, and the bill taken pro confesso against him. The defendant Rose Hopkins relied on the illegitimacy of Dr. Bond, and the alleged will of Henry Bond in 1754, devising Bondville to Henry Hopkins, who bequeathed the same to defendant Rose and her husband for life; and she insisted on the possession of herself and those under whom she derived since 1755, as a bar to the plaintiff's relief. The cause came on to be heard by the master of the rolls; when his honour was pleased to decree, that the bill should be retained for a year, with liberty for the plaintiff to bring his ejectment, and directed that neither the statute of limitations nor any temporary bar should be set up. From this decree there was an appeal to the Lord CHANCELLOR on behalf of the defendant, which now came on to be heard.

Mr. Curran, Mr. Ponsonby and Mr. O'Grady for the plaintiff, argued that he was not only entitled to the relief which had been granted, but that the decree at the rolls ought to have gone further, and restored him at once to the possession. The defendant Rose Hopkins has no title, but rests solely on the weakness of the plaintiff's title; possession not having been in him, or those under whom he derives, since 1754: but the present suit is to be considered as a continuation of that instituted by the bill which was filed by Dr. Bond, in 1755, and amended in 1756; and though the present bill is informal in the prayer of it, and purports to be an original bill in the nature of a bill of revivor, when it should have been a supplemental bill, that is but a defect in form; and the defendant not having demurred to it on that ground shall not be admitted to avail herself of this objection at the hearing; but the plaintiff should now be entitled to all equity substantially claimed. The present bill charges the bills of 1756 and 1776 and the decree of 1770, and prays the benefit of that decree. The suit since

1776 has been kept alive by the several orders made, and the proceedings which have been taken in it, and the present bill was filed in three years after the plaintiff came of age. Then if this is to be taken as a suit pending since the bills of 1755 and 1756, the plaintiff has a clear title to have the fines, and the lapse of time since, put out of the way, upon any proceeding the court may now think fit to direct at law. Dr. Bond on his return from America, found the defendants, who claimed under an alledged will of his father, in possesion of his property and title-deeds; it was impossible therefore for him to proceed at law without the assistance sought by the bill of 1755. Any ejectment brought by him without such aid could be only experimental: these bills therefore were properly filed by him: and under the cases of Pincke v. Thornycroft, 1 Bro. C. C. 289 ; S. C. Dom. Proc. 1784;(a) Cruise on fines 174; and M Kenzie v. Powis, 4 Bro. P. C. 328, the plaintiff, standing in the place of Dr Bond, is entitled to have the lapse of time and the fine levied pending that suit, put out of the way; and that bill never having been dismissed, is to be taken as a lis pendens, since 1755, and the present bill as grafted on it; but, 2dly. Though the plaintiff should not be entitled to have the lapse of time put out of the way, on the ground of the suit instituted by Dr. Bond, in 1755, he is entitled to it in consequence of the suit instituted by the defendants in 1757, and continued to the dismissal of their bill in 1770. By that suit they elected an equitable jurisdiction, and brought the other party into it: thus by transferring the jurisdiction they held their possession until 1770, protected by the authority of the court, and Dr. Bond was in the mean time prevented from proceeding at law: therefore time cannot be taken to have run against Dr. Bond or those deriving under him, down to 1770, until which time the possession of the defendants was protected by the court; Pulteney v. Warren, 6 Ves. jun. 73. Even courts of law

(a) 4 Bro. Par. Cas. 92. 2nd edition, by Tomline.

1802.

BOND

V.

HOPKINS.

1802.

BOND

บ.

HOPKINS

will not allow a party to avail himself of the lapse of time occasioned by his default, at his own instance; Michell v. Cue, 2 Burr. 660. The possession also was originally obtained by the defendants by fraud, and under colour of a fabricated will; and a court of equity will never allow a possession so obtained to be protected either by the statute of limitations or even by a fine, 2 Atk. 381; Ib. 388; 1 Ves. 289; 2 Ves. 476. And the defendants must be held to the title under which they entered, and shall not be allowed now to set it up as a mere wrongful possession. It was also contended, that as this was a case of fraud, the court had original jurisdiction to give full relief, and might decree the plaintiff to be restored to the possession; and under all the circumstances he was now entitled to such a decree.

For the defendants, the Solicitor General Mr. Saurin, Mr. Ball and Mr. Moore, insisted on uninterrupted possession in the defendant Rose Hopkins and those under whom she derived, from 1754 to this time, as a bar to any relief. Dr. Bond returned to this country in 1755 ; the statute then began to run against his title (if any he had): the might then have entered, or brought an ejectment, in which he might have gone upon the title of heirship, without the necessity of a single deed, by proving the reputed seizen in fee in his father and his own heirship. There was no temporary bar or trust to require the interposition of a court of equity, to enable him to try his title at law. He did not even file his bill until two years after his return, and then it was unnecessary; at all events he might after the coming in of the an swer have proceeded at law, or have filed a cross-bill to bring forward his claim in equity, if his former bills were not sufficient for the purpose. But from $1754 to 1776) there was no entry, nor action at law, nor suit prosecuted in equity by Dr. Bond; for he appears to have abandoned the bills of 1755 and 1756; then the mere pendency of a suit by the other party should not avail him as if he were pro

4

ceeding on his own. There was no injunction nor restraining order granted in that suit to prevent his proceeding at law. No receiver was appointed, so as to take the possession into the hands of the court: the plaintiffs in that cause did not offer to abide by the decision as to the whole of the estates then in question; so that Dr. Bond must have been apprised that as to Bondville he could get no relief by that suit. After the decree of 1770, when Dr. Bond got into possession by force, the court restored it to the Hopkinses, on the 4th March, 1771, under a possessory bill. The defendants' possession was a good title for them until Dr. Bond shewed his legitimacy, as to which, the dismissal of defendant's bill in 1770, decided nothing. Dr. Bond ever after declined trying that question, at a time when the defendants might have procured better evidence than now: But he defers doing so, though his legitimacy was constantly questioned by the defendants; and now his representatives come forward to try that question, after a great lapse of time, with greater advantage to themselves and disadvantage to their adversaries. The bills of 1755 and 1756 were answered i If it appeared by these answers that the defendants had possession of the title deeds, why not obtain an order to bring them into court? Or why not read these answers at law, if requisite, to account for the want of the title deeds? The bill filed in 1776 was nugatory and improper for Dr. Bond had obtained by the answers to the former bills all the discovery which was necessary; but at the time of filing that bill, the statute of limitations had run, and the court never has gone further in putting it out of the way, than when a bill is filed within the time of limitation. In cases of mere equitable titles, the court gives relief because the party cannot enter or proceed at law; and by analogy to the statute of limitations, if those titles be not proceeded upon within twenty years, the court holds them bound. But it also happens in the present com

i

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1802.

BOND

V.

HOPKINS.

1802.

BOND

υ.

HOPKINS.

plicated state of property, that a party having primarily a title at law, may find it necessary to come into equity for its aid to assist in enforcing his title at law; and if he does come in before the statute has run, the court very fairly says that the time which runs pending that suit shall not prejudice, as it would be harsh to drive him to assert his legal title at a hazard, and often without knowing whether he had a legal title: but in order to prevent the statute running in such a case, the court will require that the first proceeding be taken within twenty years after the title accruing. Here the title had accrued much more than twenty years before the bill of 1776, and this circumstance distinguishes it from Pincke v. Thornycroft, and the other cases cited for the plaintiff.

Lord CHANCellor.

I had no doubt from the first, that I ought to affirm the decree, if I should not think it right to go further. The decree enables the plaintiff to try his title at law without the impediments unconscientiously thrown in the way of that title.

The facts of the case are these: Henry Bond being seised of estates in three different counties, died in 1754, leaving a son, Dr. John Bond, who was unquestionably acknowledged by his father as legitimate, though there has been a question as to his legitimacy. This son was then in America, and the several persons who have been mentioned were about his father in different situations at the time of his death.

It must now be taken that they entered into a wicked conspiracy to obtain a will from the father, disposing of the property in their own favour. The court would struggle hard to prevent the effect of such a conspiracy to the pre