Court will be used by them with as little advantage to the community, as it would have been used, but for the Court's interference, by those to whom they sold it. Usury laws have driven dealings with money into a class inferior in morals, and ready to take dishonest advantages; they have made the position of a spendthrift rather worse than better, and without any advantage by way of compensation, have interrupted the free circulation of money. We suspect that the interference of Courts of Equity, to which we have just alluded, often produces results of a similar character. Indigent men fall into worse hands, are drawn into harder contracts, and after all this increase of suffering can obtain no corresponding redress, except through the vexation and protracted inquiries of a suit in equity. We attribute little weight to the principle, not unfrequently advanced, of fraud1 upon the ancestor. It is not till after his death that the inheritance sustains any injury, or is subject to any transfer; the evil is wholly unknown to him, and the Court, if it aims at his protection, seems rather to indulge sentimental feeling than to pursue any substantial benefit. We must, however, admit that we are calling in question a system of law, which, as our author observes, has prevailed under the Macedonian decree, under the Roman and many other codes of law, and has been successively enforced by our ablest chancellors. Next come those cases in which the fraud is upon strangers, and not upon any one who is an actual party to the contract. Our author's remarks shew that these cases have been the subject of the civil law, and also, from a very early period, of the common law of this country. "The common law has adopted similar principles, which have been more fully carried into effect by the statutes of 50 Edw. 3, c. 6, and 3 Hen. 7, c. 4, against fraudulent gifts of goods and chattels, and by the statute of 13 Elizabeth, c. 5, against fraudulent conveyances of lands to defeat or delay creditors, and the statute of 27 Elizabeth, c. 4, against fraudulent or voluntary conveyances of lands to defeat subsequent purchasers, which have always received a favourite and liberal construction in suppression of fraud." Voluntary conveyances, under the circumstances for which these statutes provide, are treated as 1 P. 329. fraudulent, because there is always a fair presumption of fraud, though perhaps no fraud in reality. The common doctrine of Courts of Equity is, that if property is conveyed to one person, while another pays the consideration, the conveyance is made for the benefit of the latter: equity looks to the quarter from which the consideration moves. If then no consideration is acknowledged, the same principle induces a belief that the conveying party is not acting for the benefit of any other person, but is seeking some advantage for himself. So far there is ground for suspicion. When it afterwards comes to light that he has creditors, or that he makes a fresh conveyance to a third party, an intention to commit fraud, in whichever of these positions he happens to stand, is connected in the eye of the Court with the original conveyance. It is not then without good reason that these statutes are introduced in this place, as intended to give relief against constructive fraud. The same principle of fraud introduces our author to a discussion upon notice implied or express, the registry acts, the effect of lis pendens, and the tacking of mortgages. But we cannot dwell any longer upon this portion of the treatise, except to offer to our readers the general concluding remarks, in which Mr. Justice Story brings strongly into view some of the principal advantages of proceedings in equity: "The flexibility," he says, " of Courts of Equity, too, in adapting their decrees to the actual relief required by the parties, in which their proceedings formed so marked a contrast to the proceedings at the common law, is illustrated in a striking manner in cases of accident, mistake and fraud. If a decree were in all cases required to be given in a prescribed form, the remedial justice would necessarily be very imperfect, and often wholly beside the real merits of the case. Accident, mistake and fraud are of infinite variety in form, character and circumstances; and are incapable of being adjusted by any single and uniform rule. Of each of them one might say, mille trahit varios adverso sole colores. The beautiful character or pervading excellence, if one may so say, of equity jurisprudence is, that it varies its adjustments and proportions so as to meet the very form and pressure of each particular case, in all its complex habitudes. Thus, (to present a summary of what has already been stated) if conveyances or other instruments are fraudulently or improperly obtained, they are decreed to be given up and cancelled. If they are money securities, on which the money has been paid, the money is decreed to be paid back. If they are deeds, or other muniments of title, detained from the rightful party, they are decreed to be delivered up. If they are deeds suppressed or spoliated, the party is decreed the same rights as if they were in his possession and power. If there has been any undue concealment or misrepresentation, or specific promise collusively broken, the injured party is placed in the same situation, and the other party is compelled to do the same acts, as if all had been transacted with the utmost good faith. If the party says nothing, but by his expressive silence misleads another to his injury, he is compellable to make good the loss; and his own title, if the case requires it, is made subservient to that of the confiding purchaser. If the party, by fraud or misrepresentation, induces another to do an act injurious to a third person, he is made responsible for it. If, by fraud or misrepresentation, he prevents acts from being done, equity treats the case as to him as if it were done; and makes him a trustee for the other. If a will is revoked by a fraudulent deed, the revocation is treated as a nullity. If a devisee obtains a devise by fraud, he is treated as a trustee of the injured parties. In all these and many other cases which might be mentioned, Courts of Equity undo what has been done, if wrong, and do what has been left undone, if right.” 1 We have enlarged so much upon these three great heads of concurrent equitable jurisdiction, that we are obliged to pass rapidly over the subjects which follow. They are-account in all its various shapes, matters of apportionment, contribution and average, liens, rents and profits, tithes and moduses, and waste, matters of administration, legacies, and marshalling of assets, confusion of boundaries, matters of dower, marshalling of securities, matters of partition, and matters of partnership. The course of discussion adopted upon all these subjects is to inquire in the first instance what are the general rules of statute and common law, and how far relief can be obtained independently of the Courts of Equity; afterwards to ascertain the principles upon which those Courts proceed, and to trace the application of them in the several forms which those cases assume. There is, however, one passage in the chapter upon "account," to which, as it closely affects a question constantly occurring in practice, and seems to settle it in very 1 P. 421. distinct terms, we wish to direct particular attention. The question is, whether there are any, and if any, what are the true boundaries of equity jurisdiction in matters of account cognizable at law? Some expressions in the reports would make the jurisdiction extremely wide, including every matter of contract and account.1 Some are so vague as to leave the whole to a criterion scarcely more distinct than convenience; for instance, "such an account as cannot be taken justly and fairly in a Court of Law." Other judges have said that the accounts must be complicated accounts,3 or mutual accounts.* Mr. Justice Story, after alluding to all the principal authorities, gives his version of the law in these terms: "On the whole, it may be laid down as a general doctrine, that in matters of account growing out of privity of contract, Courts of Equity have a general jurisdiction, where there are mutual accounts, (and à fortiori where these accounts are complicated,) and also where the accounts are on one side, but a discovery is sought, and is material to the relief. And on the other hand, where the accounts are all on one side, and no discovery is sought or required; and also, where there is a single matter on the side of the plaintiff seeking relief, and mere set-off on the other side, and no discovery is sought or required; in all these cases Courts of Equity will decline taking jurisdiction of the cause." We are not aware that in any other treatise there is contained any definition of matters for equitable account, which explains so satisfactorily as this passage the proper limits of the jurisdiction. The next branch of concurrent jurisdiction is that in which the peculiar remedies afforded by Courts of Equity constitute the principal, though not the sole ground of the jurisdiction. In law, for instance, the lips of the parties themselves are closed. Transactions which have taken place between the principals in the absence of witnesses, and unaccompanied with writings, are absolutely veiled from investigation A Court of Equity elicits the information by the bill of discovery. Again, a person possessed of a deed, fraudulent in its character, may fail at law in case he puts it into suit; still he keeps it in his 1 Vol. i. 438; Billon v. Hyde, 1 Atk. 127, 8. 2 Ibid. 440; Frietes v. Santos, 1 Y. & Jerv. 574. a weapon possession. Those whom it affects, are aware that he has it as of offence to be employed at a fitting opportunity, perhaps too with success, in case he is favoured by the deaths of witnesses, or by other contingencies. Relief in such a case is given by a Court of Equity, upon the principle, as it is technically called, quia timet, by the rescission, cancellation,1 or delivery up of the dangerous document. On the other hand, the person who seeks the assistance of the Court may wish not to get rid of an agreement, but to have it carried into execution. At law he can have no redress except that of a certain amount of damages, such as the jury may consider a fit compensation for the loss of the benefit of the contract. No agreement is necessary to show that in many instances such relief cannot be satisfactory, as there are many circumstances, most important to the contracting party, which cannot enter into the consideration of the jury. Here then equity steps in, and acts upon the well-known principle of placing parties in the state in which they would have stood, if the object of the contract had been honestly fulfilled. This is the decree for specific performance, which Mr. Justice Story treats under three separate classes of agreements, those which respect personal property, those which respect personal acts, and those which respect real property. In discussing the execution of these agreements, a question is introduced, on which we wish to offer some observations, as it appears to us not to have been very successfully determined. "Before Lord Somers' time, the practice used to be in bills for a specific performance to send the party to law; and if he recovered any thing by way of damages, the Court of Chancery entertained the suit, otherwise the bill was dismissed. And hence the opinion was not uncommon, that unless damages were recoverable, no suit could be maintained in equity for a specific performance." In contending against this principle, our author quotes the observation of Lord Macclesfield in the case of Camel v. Buckle. "Neither is it a true rule-that where an action cannot be brought at law on an agreement for damages, there a suit will not lie in equity for a specific performance." On examination of the cases, and |