nature of the transaction, and the absolute dominion which the appellant's necessities had given the respondent over him. Is then this a case, it is humbly asked, in which a court of equity cannot or ought not to relieve?

Third. Because even assuming, contrary to the fact, that the appellant's father was informed by the respondent or his agents of the real nature of the transaction, it would not afford a sufficient reason for withholding all relief from the appellant. The father's knowledge cannot destroy the son's equity. Where the transaction is behind the father's back, it is in general a circumstance against the lender, and forms an additional reason for the case being struck at by public policy; but it was never denied that the equity is that of the heir. Even assuming that Lord Lorton's object was to obtain a power over the appellant's expectant estate, and that with such view he encouraged the respondent to furnish the appellant with goods to the amount of 8,000l. on security of that expectant estate, in order that he (Lord Lorton) might afterwards get an assignment of the mortgage, the appellant had no knowledge of his father's views or interference, and such interference cannot defeat his own equity to be relieved from the imposition practiced upon him. In truth Lord Lorton, as the evidence proves, never did know that it was intended to advance goods and not money to his son; and when the real transaction was disclosed to him, he refused any assistance to his son, except upon the condition that the respondent would take back the goods, which he refused to do. And now the respondent's equity is made to rest upon the communications with the father. Such a defence only the more strongly marks the nature of the case against the appellant.

Fourth. Because the subsequent sale of the goods by the appellant, though it might modify, is not sufficient to deprive the appellant of the relief which equity affords to expectant heirs against oppressive bargains. The sale did not put it out of the power of the Court to administer a specific measure of relief, since the cost price and the sale price (which includes the manufacturer's and shop profit of the goods), and also the value upon a sale by public auction, and the expenses attending such a sale, all distinctly appeared in evidence. The respondent himself occasioned the sale, by his refusal to take back the goods and rescind the transaction. There are no facts or circumstances in this case to justify the conclusion that the pressure of the appellant's necessities ceased from the time he offered to return the goods to the respondent. On the contrary, it was proved in evidence that the appellant continued wholly destitute of any present property or income until December 1829; and it also appeared in evidence that the offer of assistance from the appellant's friends to redeem the goods from Mr. Robins was conditional, and depended on the respondent's agreeing to receive back the goods. This he refused to do, and the appellant was left to his fate. And if his father's qualified offer, which was not accepted, is to deprive him of his equitable title to relief, it will in future deter parents from offering in such cases a reasonable assistance to their sons; since, if it should prove ineffectual, it would be made the ground of upholding the very transaction which it was their object to avoid. Such a doctrine, it is humbly submitted, is against principle, and altogether unsanctioned by legal authority.

*No. XII.

Coussmaker v. Sewell (e), Ch. 4th May 1791.

In this cause it was referred to Master Greaves to see if a good title could be made to the estate in question. An abstract was delivered. It appeared by it, that William Perkins, an ancestor of the vendor, had made a settlement of his estate in the year 1705; but neither the settlement itself, nor any copy or abstract of it, could be produced, and the contents of it were totally unknown. In 1751 a fine was levied by Mr. Perkins and his eldest son; and in 1763 a recovery was suffered, in which Mr. Perkins and his second son (the eldest son being then dead) joined in making a tenant to the præcipe, and the second son was vouched. The estate was mortgaged in 1759, and the title was then approved of by Mr. Serjeant Hill; and from the wording of his opinion, it was collected, that the settlement of 1705 was then before him. Supposing the limitations in the settlement of 1705 to have been to the sons of that marriage successively in tail male, those estates-tail, and the remainders expectant upon them (if any) were completely barred by the fine and recovery. The counsel for the purchaser objected to the title, on the ground that the deed of 1705 was not produced, and that it might contain limitations which were not barred by the fine and recovery; and might have created charges to which the estate still continued subject.

These objections were laid before the Master; and the vendor not acquiescing in them, they were argued before him. The counsel for the purchaser avowed his client to be an unwilling purchaser, and stated his objections with great perspicuity and ability, and required of the Master, that if he did not think the title such as a court of equity was warranted to force on an unwilling purchaser, he should not report in favor of it. The original opinion of Mr. Serjeant Hill could not be produced, and the serjeant had not that recollection of what was before him at the time he gave the opinion, as enabled him to say that he had seen the settlement. Much stress was not, therefore, laid upon the opinion. On the 21st February 1791, the Master made his report, in which he stated that he had seen the opinions given by Mr. Serjeant Hill and by Mr. Shadwell, the purchaser's counsel; and that, considering the circumstances of the case, and the length of the possession since the recovery, he was of opinion a good title might be made. To this report the purchaser excepted, and the exceptions were argued before the Chancellor on the 4th May 1791, by Sir John Scott, with great earnestness; but the Chancellor over-ruled them, and the report was confirmed.

(e) Vide supra, p. 460.

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*No. XIII.

Clay v. Sharpe, Ch. Mich. Term, 1802 (ƒ).

By indenture, bearing date the 28th of November 1798, and made between Thomas Wardell of the first part, George Taylor and Ann his wife of the second part, E. Day of the third part, and William Sharpe of the fourth part, certain leasehold estates were assigned unto the said Edward Day, his executors, administrators and assigns, subject to a proviso or condition for redemption, upon Wardell's transferring into the name of Day, his executors, administrators or assigns, 2,000l. 3 per cent. consolidated Bank annuities. And it was by the indenture agreed that if default should be made contrary to the proviso or condition of redemption, it should be lawful for the said defendant, Edward Day, to sell the said leasehold premises for the best price that could be reasonably gotten for the same; and to reimburse himself the costs, charges and expenses relating to such sale; and afterwards to re-purchase the said 2,000l. 3 per cent. consolidated Bank annuities, or such part thereof as should remain due or untransferred; and the overplus of the monies to arise by the said sale, if any, to pay to the said Thomas Wardell, his executors, administrators or assigns. And the said Thomas Wardell did, by the said indenture, covenant, that in case of any sale pursuant to the power aforesaid, he the said Thomas Wardell, his executors or administrators, would join and concur therein, and execute any assignment to the purchaser or purchasers of the said premises, with the usual covenants for the title thereto; or do any reasonable act confirming such sale. But that, nevertheless, it should not be necessary that the joining of the said Thomas Wardell in any such sale or conveyance, should be essential to perfect the title, the same being intended only for satisfaction of such purchaser or purchasers.

Default was made in transferring the stock, and Day, who was a trustee, by Sharpe's directions, put up the premises for sale by public auction, at which sale the plaintiff became the purchaser.

The plaintiff's attorney prepared a draft of the assignment, in which he made Day the mortgagee, Sharpe the cestui que trust, and Wardell the mortgagor, parties; but Wardell the mortgagor having refused to execute the assignment, the plaintiff filed his bill against Day, Sharpe and Wardell, for a specific performance of the contract for sale.

To this bill the defendants put in their answers, and Wardell stated that he resisted the sale, as having been made without his consent, and at an undervalue; but before any proceedings were had, Wardell became a bankrupt, and in consequence thereof a supplemental bill was filed against his assignees.

The cause coming on to be heard the 15th of November 1802, the Chancellor decreed that the plaintiff's bills should be dismissed as against the defendants, Thomas Wardell, and his assignees, with costs, to be taxed by the Master. And it was also decreed, that the agreement entered into by the plaintiff with the defendants William Sharpe

(f) Vide supra, p. 523.

and Edward Day, for the purchase of the premises in question, be carried into execution. And that upon the plaintiff paying unto the said defendants William Sharpe and Edward Day, the residue of the purchase-money for the premises, the said defendants should execute an assignment of the lease of the said premises to the plaintiff, or as he should appoint. And that the defendants Sharpe and Day should pay to the plaintiff his costs of the said suit, so far as the bills were not dismissed, as therein before directed, to be taxed by the Master, in case the parties differed about the same.

No. XIV.

Belch v. Harvey (g), Ch. Mich. 9 Geo. II.

This cause was very long and intricate; but the chief question was, what length of time would bar an equity of redemption? And as to that point, Talbot, Lord Chancellor, said that courts of equity had of late years generally adhered to the time laid down in the statute of limitations with regard to ejectments, and that it was certainly right to have fixed rules in equity as well as law, that people might know how far their property extended, and where it was bound; and that he did not know any more reasonable rule in general than what the Legislature had prescribed for such possessory actions. The person claiming the equity of redemption offered some proof out of the Ecclesiastical Court to show she was an infant at the time of her marriage, which was not allowed to be read, and other proof that the marriage continued for many years, both which, taken together, would excuse the non-redemption for a long time; but my Lord Chancellor gave her liberty to file an interrogatory to prove her infancy at the time of her marriage, if she could; and said, he would then consider whether equity had also followed the statute of limitations in allowing only ten years for infants and femes covert to commence their suits after the imperfections removed, for he did not remember the Court had pursued that part of the statute; and Mr. Verney, king's counsel, cited the case of Brewer and Bakerstraw, which he believed to be about five years ago, where the father mortgaged some chambers in Gray's Inn, and died, leaving his son an infant, during which time many years were saved; and yet nineteen years after he was come of age he was permitted to redeem. But to this Mr. Fazakerly answered, there was as much reason for observing it in the one case as the other and that, in the present case, thirteen years had passed between the death of the husband and the bill filed for a redemption. This was on a supposition she could prove her infancy at the time of her marriage; for if she was then of full age, my Lord Chancellor said, the time would attach and run out against her, notwithstanding the subsequent marriage, and then she would be put off from all possibility of relief, for there would be near forty years possession against her unaccounted for. By statute 21 Jac. I. c. 16, persons having any right or title of entry must enter within

VOL. II.

(9) Vide supra, p. 611.

75

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twenty years after titles accrued; but the title of infants, femes coverts, &c. are saved, so as they commence their suits within ten years after the imperfection removed.

*This cause coming on again the same term, was ended by consent of the parties: but Lord Chancellor Talbot spoke, however, in this case, to this effect: A peaceable and quiet possession for a long time weighs greatly with me in all cases. The foundation which the Court goes on in cases of the like nature with the present, is not any presumption, that after a long space of time the party has deserted his right; but to quiet and secure men's possession, which is very reasonable to be done after twenty years' time, without some very particular circumstances: and for this cause a court of equity has generally acted in conformity to the statute of limitations. Whether the present plaintiff was an infant at the time of her marriage is to me very doubtful; but taking it she was then an infant, as the Court has not in general thought proper to exceed twenty years, where there was no disability, in imitation of the first clauses of the statute, so if I had been forced to have made a decree in the present case, I should have been of opinion that after the disability removed, the time fixed for prosecutiug in the proviso, which is ten years, should also have been observed for the proviso containing an exception of several cases out of the purview of the statute, if the parties at law should avail themselves by the proviso, they must take it under such restrictions as the Legislature hath annexed to it, and that is, to sue within ten years after the impediment ceases. Why should not the same rule govern in equity? I think there is great reason that it should. The persons who are the subject of the proviso are not disabled from suing, they are only excused from the necessity of doing it during the continuance of a legal impediment; therefore when that difficulty is removed, and nobody can say how long it may last, the time allowed after such impediment removed for their further proceedings should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms such excuse is given? If I had given my opinion on this case, I should have dismissed the bill.

No. XV.

The King against John Smith, Esq. (h), Serjeants' Inn Hall, March 2, 1804.-The judgment of the Court, as delivered by the Lord

Chief Baron.

This case of the King against Smith has occupied a great deal of the attention of the Court, and that in a great degree owing to the prodigiously extensive consequences that it may have according as it is decided in the one way or the other. We were therefore anxious to search in order to find out what materials existed on the subject. After all the pains we could take, we find them to be but few. We have found no decision or authority similar in its term to the present case; and the consequence of that is, where we can find principles

(h) Vide supra, p. 779.