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

"within mentioned lime, and also at the time of our planting the "within mentioned trees, and engage not to turn up more acres "than we shall lime as aforesaid, and if we should in any year "omit 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 66 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 Sd 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 F1NUCANE) 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 declined 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. 1 could wish that the learned Lord who delivered 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 consider 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 ĈARLETON 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, I 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 reco cover 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 ha▼-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

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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. And yet, "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 person if a lease is not duly "made." If these 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

court of law has nothing to do with equity; he must leave it to its proper tribunal; he 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 say 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 entitled 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.

of Coventry v. Coventry, and all the cases on jointuring powers. The cases of tenant in tail and of ecclesiastical persons are totally different; there was no power to bind a remainder-man arising from the nature of an use previous to the statute of uses; and as to ecclesiastical persons, they are prevented by statute from making leases except pursuant to the statute; and all leases not made pursuant thereto, are expressly made void against the successors to all intents and purposes. The same reporter makes Mr. Justice WILMOT say, "it is much to be lamented that after the statute "of uses, the courts of common law had not adopted all "the rules and maxims of courts of equity." It is scarcely to be believed that this could have fallen from Mr. Justice WILMOT: and if Lord MANSFIELD found fault with the decision in the case of Rattle v. Popham, as he is represented to have done, I think with deference that there was no ground for the remark. I must therefore consider what is thus attributed by the reporter to Lord MANSFIELD and Mr. Justice WILMOT in the case of Zouch v. Woolston, as of no authority on this subject; and I think I am warranted by the decision in Campbell v. Leach, (made with the concurrence of such high authorities as Lord Chief Justice DE GREY, and Chief Baron SMYTH) in saying that a contract of this description does bind a remainder-man.

An objection has been raised from the uncertainty which the remainder-man would be under with respect to the tenure of the estate. Unquestionably this is a serious consideration, but it applies to many of the cases on jointuring powers; especially as to the lands charged, and the extent in which they were bound. But the courts have gone great lengths to assist in rendering certain what has been thus left uncertain. There are cases of contracts to make a jointure where it was impossible for the remainder-man to know how far the estate was bound without filing a bill.

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A question has been put, whether if this were a case of a parol agreement in part performed it could be enforced? That I think would raise a very distinct question; a question upon the statute of frauds, and perhaps a remainder-man might be protected by the statute, though the tenant for life would not. For the party himself is bound by a part execution of a parol agreement principally on the ground of fraud, which is personal. Such a ground could scarcely be made to apply to the case of a remainder-man unless money had been expended, and there had been an acquiescence, after the remainder vested, which were held by Lord HARDWICKE in Stiles v. Cowper,(a) in the case of an actual lease under a power, but with covenants not according to the power, to bind the remainder-man to grant a lease for the same term with covenants according to the power.

Again, this is said to be a lease in reversion: I find nothing to warrant this. It is a contract, and a contract must necessarily precede the execution of it; the writing certainly was not complete because it refers to a memorandum, to be subsequently executed. If Sir Samuel had died before the first of November, it might have been a different question, but the plaintiff was in possession under Sir Samuel at the time of his death.

The next objection is founded on the covenant to lay out 2007. in improvements; but I think this will not avoid the contract, if the rent be notwithstanding the best that can be got. Such a covenant is not necessarily a fraud. It may be made with a fraudulent intent, and when it is so made it will avoid the lease; if it were colourable, and merely for the purpose of putting money into the pocket of the tenant for life it would avoid the lease; or if it were not originally intended as a fraud but were afterwards used fraudulently

(a) 3 Atk. 692.