not devisees of any part of the estate, they held the deeds. relating to that part, in trust for him; there was no fraud; they were bona fide devisees; the only doubt was, whether the words used in the will were sufficiently comprehensive. to carry the farm in question. There Lord THURLOW, and the House of Lords on the appeal, were clearly of opinion, that non-claim on the fine levied pending that suit should not be made use of to prejudice the legal title. That case is always cited with approbation. The principle therefore is fully established with reference to the statute of limitations, and the statute of fines. The same principle is also established by what the court does upon the statute of frauds. The statute of frauds says that no action or suit. shall be maintained on an agreement relating to lands which is not in writing, signed by the party to be charged with it; and yet the court is in the daily habit of relieving, where the party seeking relief has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief. The first case (apparently) of this kind was Foxcraft v. Lyster, cited 2 Vern. 456, and reported in Colles's Parl. Cas. 108. That case was decided on a principle acted upon in courts of law, though not applicable by the modes of proceeding in a court of law to the particular case. It was against conscience to suffer the party who had entered and expended his money on the faith of parol agreement to be treated as a trespasser, and the other party to enjoy the advantage of the money he had laid out: At law fraud destroys rights. If I mix my corn with another's, he takes all; but if I induce another to mix his corn with mine, I cannot then insist on having the whole: The law in that case does not give me his corn. The case of Foxcraft v. Lyster therefore I conceive was decided on clear principle; though whether the cases founded on that case have been all so well considered I will not take upon me to say. But it appears 1802. BOND V. HOPKINS. 1802. BOND V. HOPKINS. from these cases that courts of equity have decided on equitable grounds, in contradiction to the positive enactment of the statute of frauds, though their proceedings are in words included in it; whereas they are not included in the words of the enactment of the statute of limitations. All these cases were discussed in Pulteney v. Warren, 6 Ves. jun. 73. It was there decided to be against conscience to use an advantage which the party had gained by delay produced by himself, through the acts of the courts of law and equity; and though these courts had not made the terms for the party injured which they should have done, yet it was held that that omission should not prejudice him. The words of Lord ELDON are these: "If there be a principle on which "courts of justice ought to act without scruple, it is "this: to relieve parties against the injustice occasioned by "its own acts or oversights, at the instance of the party against whom the relief is sought." That case is unquestionable. There, accident had produced this consequence; that no action could be brought at law. What difference is there between the case where no action could be brought, and that where no effectual action could be brought? It would be very strange that a party having no pretence finally to relief in equity, should get it, in effect, by the delay occasioned by the pretence under which he obtained the interference of the court in his favour.(a) Under these circumstances I have no difficulty in holding that the statute of limitations, in the manner it has been insisted on, should not operate as a bar, if the lapse of time, since the title to equitable relief began, does not prevent relief in equity on that title: and this brings me to the second part of the case; whether the party now applying has come into this court in time. (a) Vid. Duval v. Terry, Show. Parl. Cas. 15. Semble on this principle interest given beyond the penalty, on a bond. The bill of 1776 is to be taken as that on which this suit is now depending. I cannot take it up on the bills of 1755 or 1756; for though not dismissed, they were to a certain degree abandoned. Under colour of the will which was set up by the defendants, their possession was protected by a court of equity during the suit instituted by them, so that I must take their possession, as protected by the statute against relief in equity, to be only from 1770, when their suit was finally dismissed, Therefore the bill of 1776 is in ample time. If Dr. Bond had lived to 1776, he would have had a clear title to put out of the way what was occasioned by the act of the court, assuming jurisdiction of the whole question, and acting in a way that would have deprived Dr. Bond of the whole estate, if it had decided against him. If the suit had lasted till 1776, there could be no doubt of this. It would be monstrous to say otherwise; it would be monstrous to say, "you have succeeded in impeaching the will on which "the whole of the case of the other party was put, but in "effect that will has been established, because the time that "has elapsed pending the suit prevents your recovery at "law." This brings the case clearly to the question, whether those who framed this statute with the full knowledge of the decisions upon a similar statute in England, did not mean that parties should have twenty years, during which it should be open to them to proceed at law and I take that to be the true intent and meaning of the act, and the reason for not including in the words of the enactment, proceedings in courts of equity. Here Dr. Bond could not bring an ejectment pending the suit instituted in 1757; the court at least conceived that he could not, and required security for the rents and profits, from the other party. On this ground therefore I conceive the operation of the statute ought to be taken from the decree of dismission in 1770. : 1802. BOND V. HOPKINS. 1802. BOND υ. HOPKINS. But there is another ground in this case for relief to be given directly by the court itself; I think, from the suit, instituted in 1757 and from the decree of 1770, a new equitable title accrued to Dr. Bond; for the result of that suit and of the decree, I conceive should be, that the parties to it should be prevented setting up the will against his title in any future litigation. That I consider is a new equitable right in Dr. Bond, accrued to him by the decision in 1770. There was also another new equitable right which he gained by those proceedings; the bill (of 1757) was brought against Dr. Bond and Mrs. M'Geough, and was calculated to bind both: it went on this ground: "We, (the plaintiffs in that bill) have no title but under the “will; we are entitled to a decree establishing the will "against both, no matter which is heir :" and perhaps the ground on which the court proceeded in directing the issue was, that an ejectment against one would not decide the title against the other: and though that bill puts in issue the legitimacy of Dr. Bond, it could only be for the purpose of compelling Dr. Bond and Mrs. M'Geough to discuss the question between themselves. The plaintiffs had no right otherwise to put the question in litigation: and suppose Dr. Bond and Mrs. M'Geough had agreed to divide the estate, and had said so by their answers; the court would not have suffered the question of legitimacy to be discussed. Mrs. M'Geough declined to be a party to the issue on the will, and Dr. Bond's representatives have now a right to say, she declined it because she admitted his legitimacy. There was no evidence on the part of Mrs. M'Geough to impeach his legitimacy; and the plaintiffs took the issue with Dr. Bond on the will, as the true heir, and have now no right to dispute his legitimacy. Therefore Dr. Bond gained also this right, by the suit in 1757, and the decree in 1770: that the persons who were plaintiffs in that suit should not set up his illegitimacy in bar of his title; and they must be taken to have offered, by their suit, to deliver up the possession to Dr. Bond or Mrs. M'Geough, whichever should appear to be the heir, if the finding should be against the will. Therefore Dr. Bond acquired a new right on this ground at the end of that suit. He might either, according to the practice of this court, have amended his bill, which was still on the file, or have filed a new one, stating the termination of the suit of 1757 by the decree of 1770, and calling for the possession on the ground of that decree. Mrs. M'Geough must indeed have been a party, and perhaps might still have tried the question of legitimacy; but the court ought in the mean time to have taken the possession from the plaintiffs in the bill of 1757; and if it allowed Mrs. M'Geough to try an issue with Dr. Bond on his legitimacy, which I think very questionable, it ought to have delivered the possession to whomsoever should be found finally to have the right, on the discussion of the question of legitimacy. The court ought not to have entertained the suit of 1757, unless such was to be the effect of it. It has been said, Doctor Bond might have filed a cross bill, and that it was his fault not to do so, or to bring forward his own bill: but he was not bound to do so. In the Attorney General, v. Whorwood 1 Ves. 584, (but imperfectly reported) the case could not have been fully decided on the bills then before the court: and on a further hearing on the 11th and 13th June, 1755, upon exceptions to the master's report, and the special matter in that report, the court directed a supplemental information to be filed by the Attorney General, to bring before the court a further question respecting two colleges not parties to the original information; and by an order of the 28th July 1755, the court gave leave to the heir at law and next of kin to file bills against the colleges, and to assert their titles. The heir at law and next of kin did so, and finally obtained decrees on their rights, the dispositions in favour of all the colleges being determined by the court to be void. Suppose. 1802. BOND V. HOPKINS. |