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1802.

BOND

v. HOPKINS.

possession whilst it was so protected, as a mere unlawful posa session. I'must therefore distingush the possession to 1770, protected as it was by the court, under colour of these instruments set up as the will and codicik of Henry Bond; from the subsequent possession ; and on that ground alone I think there is sufficient to support the decree of the master of the rolls. I think the decree ought to have gone fur. ther. But before I discuss that part of the case, I think it important that the question raised against the decree as it stands, on the statute of limitations, should be fully discussed.

The statute The statute of limitations(a) does not apply in terms of limitations does not apply

to proceedings in courts of equity, it applies to particuin terms to pro- lar actions at common law, and limits the time within ceedings in equity. which they shall be brought, according to the nature of these

actions; but it does not say there shall be no recovery any other mode of proceeding. The first part of the preamble applies to particular writs; the second part to quiet possessions ; and the enactment proceeds on the first part only. At the time of passing that act in this country, suits in equity were very common; and the manner in which courts of equity had considered the statute of limitations in England was well understood. Therefore this act must be considered as having passed with full knowledge on the part of the legislature of the construction put upon a similar statute in England, in proceedings in courts of equity; and that courts of equity would not probably be considered

as affected by it, otherwise than as courts had been consiBut equitable dered as affected by tfle English act; that is, it would be titles are affect. considered as affecting equitable titles, by analogy to it. ed by analogy to the statute of

911! 2 limitations.

There are certain prineiples on which courts of equity act, which are very well settled. The cases which occur

(a) 10 Car. 1. 8eas. 2, c. 6.

1802.

BOND

HOPKINS:

are various ; but they are decided on fixed principles. Courts of equity have in this respect no more discretionary power than courts of law. - They decide new cases as they arise by the principles on which former cases have been decided, and may thuş sillustrate or enlarge the operation of those principles, but the principles are as fixed and certain as the principles on which the courts of common law proceed.

1

Nothing is better established in courts of equity, (and it was established long before this act) than that where a title exists at law and in conscience, and the effectual assertion of it at law is unconscientiously obstructed, relief should be given in equity; and that where a title exists in conscience though there be none at law, relief should also, though in a different mode, be given in equity. Both these cases are considered by courts of equity as affected by the statute of limitations : that is, if the equitable title be not sued upon within the time within which a legal title of the same nature ought to be sued upon, to prevent the bar created by the statute, the court; acting bý analogy to the statute, will not relieve. If the party be guilty of such laches in prosecuting his equitable title as would bar him; if his title were solely at law, he shall be barred in equity ; but that is all the operation this statute has orought to have on proceedings in equity; and the statue having been made in this country after these principles had been fully esta blished by the decisions of the courts of equity in England on the statute of limitations made in that country, it must have been the intent of the legislature here to leave it open to courts of equity, guided by theit established principles, to determine how far the statute should be applied to their proceedings. If a court of equity goes beyond the line which it ought to adopt as, 'its limit, there is a court of last resort which may correct its errors: if that court should act so as to alter instead of declaring the law, the legisla

1802.

BOND

ture may interfere ; but if the court of last resort decides, and the legislature acquiesces, the law must be taken to be according to the decision.

Hopkins.

One acknowledged principle on which courts of equity give relief, is to prevent an advantage gained at law from being used against conscience. There are two modes by which the court gives relief in such cases; one direct, the other indirect: in the first mode, it acts by giving of itself full relief; in the second, by enabling the party to try his title at law, without the impediments which may against conscience be opposed at law to his proceedings. Many instances of these may be put; a person having a right in equity may not have a right to bring an action at law. He may be compelled to come into equity to obtain leave to proceed at law in the name of the person having the legal right. So, a party inay have a title at law, if temporary bars were out of the way; it happens frequently from the complication of titles to lands, especially in this country, (where such titles are generally much more complicated than in England) that the true question cannot be got at at law, without the interferance of a court of equity, or the agreement of the parties. Whether this court will interfere to take from one in favour of another that which would be a defence at law, depends on what is called good conscience. In this country the registry act prevents the discussion of questions on equal equities which often arises in England: as for instance, in England, á later incumbrancer without notice may gain an advantage at law over a former; and a court of equity does not consider itself warranted to take away his advantage: a satisfied term may protect the inheritance, and it is the custom to procure assignments of such ; and a bona fida purchaser is allowed to use it for his protection, if in point of conscience he ought to use it; that is, if he be a purchaser without notice. And

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V.

in the present.case, it is not disputed that temporary bars 1802. ought to be put out of the way: but it is said that the bar

BOND arising froin lapse of time ought not to be removed; why

HOPKINS. not as well as a satisfied term, if used against conscience ? But it is contended that the bar arising from the statute of limitations ought not to be removed, because the enactment of the statute is positive. The answer is, the positive enactment has nothing to do with the case. The question Bar arising is not, whether it shall operate in a case provided for by the from lapse of positive enactment of the statute, but whether it shall ope- put out of the rate in a case not provided for by the words of the act, and way in equity,

if used against to which the act can apply only so far as it governs deci- conscience. sions in courts of equity: that is, whether it shall prevent a court of equity doing justice according to good conscience, where the equitable title is not barred by lapse of time, although the legal title is so barred. It is admitted that in a case where this court may decree possession, (supposing the suit instituted in time) it will not be prevented by the statute of limitations from doing justice, by a direct decree, although before the time of making that decree, the lapse of time would bar proceedings on a legal title: but it is said, it cannot do justice indirectly ; that is, it cannot do justice where it thinks fit to put the question of title in a train of discussion at law, by directing a trial at law to ascertain facts, and the law arising on those facts; which is only one mean of doing justice used by courts of equity, and a mean used because the court will not break in on legal proceedings more than is necessary for the purposes of justice, but will suffer the course of the law to proceed as far as with justice it can. It is admitted, even in that indirect mode of administering relief, if a term for years or any other temporary bar be an impediment to justice it may be put out of the way; there is no difficulty made upon that part of the case. It is admitted, also, that where. the court is to act directly and by itself, it is not bound by the words of the statute, or by the spirit of it,

1802.

BOND

HOPKINS.

provided the suit in equity is instituted in due time. It should seem to follow (though there were no case) that when it acts indirectly, it should be no more barred by the statute than when it acts directly :: Barnesly v. Powell, 1 Ves. 285, is an authority to shew that if the court could not, from the nature of the case, do justice indirectly, by putting the title in a course of trial in another court, it ought to act upon the matter itself, and give direct relief. But it is clear that courts of equity have, under the correction of the court of Dernier Resort, and with the acquiescence of the legislature, decided on the principles on which the master of the rolls' decree is founded; M Kenzie v. Powis, 4 Bro. C. 328; Pincke v. Thornycroft, 1 Bro. C. 289. S. C. Dom. Proc. 1784, reported in Cruise on fines 366. (a) and many other cases.

In the first of these cases the appeal was on the single ground that the court of equity, had not set the statute of limitations out of the way. It is evident that courts of equity had been then in the habit of removing the statute out of the way, for so much time as had run, pending the cause in equity: the Dernier Resort thought that from the circumstances of that case, it should be put wholly out of the way. Pincke v. Thornycroft is on the same principle; the bar there had run during the suit. The fine was first thrown in the party's way, in that case, not as operating by length of time, but because he had not entered to avoid it. It might have been said, that the party should have searched whether there was a fine, before he proceeded at law; and that he was negligent in not doing so. But it was held to be against conscience to make use of a fine levied pending a suit in equity, a suit instituted for the purpose of obtaining the discovery, upon which that ejectment proceeded: the suit was a proper one : the devisees had got possession of all the title deeds: the plaintiff, as heir, had a right to call on them in the manner he did by his bill; for so far as they were

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