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been strongly advised not to delay the publication of the work, all that part containing the former Orders was at once sent to the press, thereby rendering it necessary to print the new Rules by themselves at the end; but short notes have been appended, showing their connection with, or effect upon, the provisions of the former Orders.
A circumstance, which might possibly be supposed to render a work of this kind not altogether necessary, is, that there is an opinion in some quarters to this effect, that the Court of Chancery, as now established in Upper Canada, is not likely to remain a permanent institution—that, like many other creatures of Canadian Parliamentary birth, it may soon suffer annihilation at the hands of the parent, and that indeed such an event would be rather popular than otherwise. On this subject it would be presumption to offer an opinion here. The benefit, or otherwise, of this particular Court is a question of public economy, and not of law. Those whose duty it is to consider and decide upon such questions, will no doubt give it sufficient consideration. But one conclusion is inevitable, whether this or that Court be suffered to remain or be abolished, some tribunal, having power to try causes, such as those now brought before the Court of Chancery, must exist. There must be a Court, in which claimants can have redress in cases which the present common law tribunals cannot reach. Such cases will arise, and by some Court they must be decided. This is sufficient for our purpose ; and it is therefore unnecessary to enter into an argument as to which kind of Court would be most popular for the purpose, or which system would be most efficient. If, whatever changes in the jurisdictions take place, there must still be Equity administered by some Court, (and this seems undeniable) then it must be useful for the Profession to have kept clearly before them, from time to time, as alterations take place, the Rules by which the practice in the administration of Equity is governed.
When further important alterations happen to be made in the practice, the writer hopes that he, unless some one more fitted for it shall undertake the task, will keep the Profession supplied with the necessary supplementary publications.
may not be out of place,-but chiefly with a view to those readers whose business may not have led them to pay much attention to Equity,mto refer to a few of those cases, in which the proper
relief cannot be had at law, and the intervention of some tribunal, empowered to administer Equity, becomes necessary.
A party has purchased a lot of land. He pays a portion of the purchase money, but is in arrear as to the remainder. The vendor brings an action of Ejectment and turns the purchaser out of possession. The purchaser afterwards tenders his purchase money, but the vendor refuses it, saying that the payment was not made in time, and he will not now take it. He prefers keeping the part of the purchase money which has been paid, and taking also the benefit of the improvements which the purchaser may have made. The Ejectment clearly could not have been defended. Such a purchaser can in Equity, unless there are special circumstances against him, have a specific performance of his contract, and a conveyance of the Estate on making payment. A recent case on this subject is MACDONALD vs. ELDER.-Grant's Chancery Reports, Vol. 1.
The ordinary mortgage transactions, which are constantly occurring, cannot be adjudicated upon completely by the Common Law Courts. The right of the mortgager to redeem is no unreasonable indulgence, limited, as it now is, to six months instead of twelve as formerly, after the account is taken. The Court of Chancery is the only Court by proceedings in which, this right can be foreclosed, or extinguished.
There are many cases where the right to redeem, does not rest on the express words of a mortgage in the usual form, but upon special circumstances and extrinsic evidence, which in some cases have been deemed sufficient to sustain the right to redeem, although such a permission might seem contrary to the words of the deed. Where, for instance, there has been fraud, accident, or mistake, and the holding of the deed to be an absolute conveyance would be inconsistent with the dealings between the parties. In such cases the Rules of Common Law prevent any relief being granted in those Courts, and resort is necessary to an Equitable jurisdiction. A case of this kil is LETARGE VS. DE TUYLL,-Grant's Chancery Reports, Vol. 1, p. 227 ; and the distinction is very clearly drawn in the judgment of the Court of Appeal in the case of STEWART vs. HOWLAND between the cases in which relief can, and where it cannot, be given in opposition to the words of the conveyance---in short, where the Statute of Frauds must prevail, and where it can be held inapplicable, because to use it as a shield would be to make it the means of effectuating fraud. The case of STEWART vs. HOWLAND was decided in December 1850, and will be found in Grant's Reports.
The Jurisdiction of the Court of Chancery is frequently invoked in cases of fraud, where an advantage has been gained by one party over another, who may have his advantage strengthened by having the Law on his side. This is the case often enough, where a person has, in ignorance of his actual rights, and not being in a position clearly to understand the effects of his act, executed papers which must have their full effect at Law, but which may be considered in Equity with reference to the real merits of the transaction arising out of all the circumstances. On this subject, though the case goes to other points, the reader is referred to STUART vs. IIORTON --Grant's Chancery Reports.
The Jurisdiction of Equity embraces the whole numerous class of partnership cases, and those wherein the relations of trustee and cestui-que-trust are in question.
A partnership has to be dissolved, and the affairs wound up, and in the meantime one partner desires to be protected against the fraudulent collection and expenditure of the partnership funds. A decree is made, under which the Master has to take the accounts. An injunction is granted, which prevents any improper interference with the assets; and the business is directed to be managed by a “Receiver," who, as the Agent of the Court, collects the assets, and the Court disposes of them in favour of those whom the event of the suit may show to be properly entitled. Such is the case of PRENTISS vs. BRENNAN,-Grant's Chancery Reports, Vol.1, p. 371.
An Agent or Trustee, possessing advantages with respect to
property which he may hold in such capacity, deals with it in a manner to serve his own ends, and contrary to the real interests of those for whom he acts. The interference of the Court is invoked in manner similar to that above stated. ARTHURTON VS. DALLEY,—Grant's Chancery Reports; and to these may be added, the large class of cases of administration of Testators and Intestates effects, and the management of the Estates of Infants and Lunatics.
These are a few, and very far from the whole, of the classes of cases, in which an Equitable jurisdiction under the system of laws which obtains in England and here is absolutely necessary. In whatever Court that jurisdiction may be vested, is a matter of comparatively little importance to the lawyer or to the student, or even to the public, provided that it be a Court competent for the purpose, and such as to satisfy the wants, but not to form a disproportionate drag upon the resources of the country. The Equity must be somewhere administered, and it must therefore be studied and practised. Nor will it continue to be studied and practised by a few only of the Profession. The more summary mode of proceeding, and the great reduction of costs in all the Courts, will render it almost out of the question for any one class of men to confine themselves to one branch of the Profession, however desirable that might, under some circumstances, be considered with a view to greater efficiency. These considerations, although perhaps stated at too great length, may be given as fair reasons among others for believing, that a publication of this kind may be useful.
The few authorities cited in these Introductory Remarks are selected, as being in a certain sense leading cases, and having been decided since the establishment of the new Courts.
In the ensuing pages it has not been attempted, in such explanatory notes as are given, to state what the precise practice may be under the New Orders, where any reasonable doubt may exist. And for this reason, that the practice is too new, to render it possible, that the construction of the Orders should be as yet settled by Decisions. In course of time, when other publications of this kind become necessary, the practice may be more clear. A year or two may give occasion, for instance, for many important deci
sions affecting questions upon which there are now many doubts, namely, What cases may be referred to the Master under the 75th Order ? And how far is a defendant concluded by such reference, if made before he could possibly answer the Bill ? And to what extent may the motion be resisted on affidavit ? These questions, and many more such, cannot be answered satisfactorily in the present infancy of the practice; and therefore it is hoped that the omission to attempt showing what the practice is, where it is undeniably in doubt, will be readily excused. What few annotations appear, may be useful to some ; but the chief object has been, to give all the Orders in the order of the proceedings in a Cause, and to supply a sufficient Index.