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ment of the parties was embodied in the articles, and that the Marriage discrepancy between the two instruments had its origin in mistake. In this case the Court will rectify the settlement, by making it conformable to the real intention of the parties as expressed in the articles.

It has, however, been laid down by a high authority (Lord Cottenham) that in order to justify the Court in taking such a course, it is necessary that a clear intention should be proved; it must be shewn that the settlement does not carry into effect the intention of the parties. If there be merely evidence of doubtful or ambiguous words having been used, "the settlement itself is the construction which the parties have put upon those doubtful or ambiguous words" (1).

The Court, however, acts with caution in rectifying marriage settlements, and is strict in requiring evidence as to the exact nature of the contract into which the parties intended to enter, on the ground that it is impossible to undo the marriage or to replace the parties to the same positions as they were in before the marriage.

The law with regard to the subject of mistake was much Mistake. considered in a recent case (2). There the plaintiff wrote a letter offering to grant to the defendant a lease of a portion of a block of three houses, consisting of the first, second, third, and fourth floors of all three, at the rent of £500 a year, the defendant wrote in answer, accepting the offer; and a lease was executed whereby all the upper floors of the block were demised by the plaintiff to the defendant at the rent of £500.

It then appeared that the plaintiff had made a mistake, having intended to reserve the first floor in one of these houses for his own use, and also that before the receipt of the plaintiff's letter, the defendant knew of this intended reservation, and the Vice-Chancellor held that this mistake warranted a rescission of the contract, and also that the defendant should not be allowed any costs, as he was not justified in his assertion that the letter constituted a new and independent offer. In the course of his judgment, Bacon, V.C., expounded the law on the subjects of rectification and rescission of contracts as follows:"If it is a case of common mistake-a common mistake as to one stipulation out of many provisions contained in a settlement or any other deed, that upon proper evidence may be rectified-the

() The Marquis of Breadalbane v. The Marquis of Chandos, 2 My. & Cr.


(2) Paget v. Marshall, 28 Ch. D. 255.

Unilateral mistake.


tion of voluntary deeds.

Disentailing deed.


Court has the power to rectify, and that power is very often exercised. In the other class of cases, i.e. cases of what is called unilateral mistake, if the Court is satisfied that the true intention of one of the parties was to do one thing, and he by mistake has signed an agreement to do another, that agreement will not be enforced against him, but the parties will be restored to their original position, and the agreement will be treated as if it had never been entered into."

The law with regard to the rectification of voluntary deeds is somewhat peculiar.

Equity will not as it is said assist a volunteer, and accordingly a voluntary deed cannot be rectified during the lifetime of the settlor unless he consents. If you say to a man there should be a trust in favour of A. B., and he says, "I intended no such thing, I do not choose to give anything to A. B.," no amount of evidence, however conclusive, proving that he did so intend, will at all justify the Court in compelling him to introduce a clause into the deed which he does not choose to introduce now, although he might at the time have wished to have done so (1).

If, on the other hand, a man executes a voluntary deed in his lifetime declaring certain trusts, and happens to die, and it is afterwards proved, from the instructions or otherwise, that beyond all doubt the deed was not prepared in the exact manner which he intended, then the deed may be reformed, and those particular provisions necessary to carry his intention into effect may be introduced.

It was decided by the Appeal Court in a recent case that a deed of re-settlement although enrolled in Chancery as a disentailing deed might be rectified (2).

In all cases where the rectification of a deed is sought, the Court requires clear evidence of the intentions of the parties and of the fact that the mistake was mutual. The onus probandi rests upon the party who seeks to have the instrument rectified, and, as might naturally be expected, the Court views with some jealousy the evidence which is adduced to rectify an executory instrument, and its jurisdiction will be cautiously exercised (3).

In one case the Court considered an uncontradicted affidavit of the plaintiff as sufficient evidence. The order of the Court

(') Broun v. Kennedy, 33 Beav. 133; Lester v. Hodgson, L. R. 4 Eq.


(2) Hall-Dare v. Hall-Dare, 31 Ch. D. (C.A.) reversing the decision

of the Vice-Chancellor, 29 Ch. D. 133.

(3) Barrow v. Barrow, 18 Beav. 522; Wright v. Goff, 22 Beav. 207.


rectifying the settlement is sufficient to revest the legal estate in the property in the proper party without a conveyance. The practice is to endorse the rectifying order of the Court on the Practice. instrument rectified, and such order is sometimes specially initialled by the judge (1).

Although the subject of the rectifications of deeds, &c., has been specially assigned to the Chancery Division, yet it was decided soon after the Judicature Acts came into operation that where the defendant in an action in one of the other divisions of the High Court of Justice relies on an equity to have a deed set aside as part of his defence, the division in which the action is brought may give effect to such an equity, and may for that purpose treat the instrument in question as rectified or set aside (2). Attention has already been directed (ante, p. 581) to the fact that since the Judicature Act the Court can now rectify an agreement, and order specific performance in the same action (3).

(1) White v. White, L. R. 15 Eq. 247; Hanley v. Pearson, 13 Ch. D. 545, 549, where the form of order is given; Tucker v. Bennett, 38 Ch. D. 1, reversing 34 Ch.|D. 754.

() Mostyn v. The West Mostyn Coal and Iron Co., Limited, 1 C. P. D. 145; Hirschfield v. London. Brighton, and South Coast Railway Co., 2 Q. B. D. 4. (3) Olley v. Fisher, 34 Ch. D. 367. See also on the subject of rectification: Pearson v. Pearson, 27 Ch. D.

145; Caird v. Moss, 33 Ch. D. 22;
and as to mistake of fact and law:
Cooper v. Phibbs, L. R. 2 H. L. 149;
Beauchamp v. Winn, L. R. 6 H. L.
223; Rogers v. Ingham, 3 Ch. D. 351;
and notes Brett's Leading Cases in
Equity, p. 64, et seq. In Allcard v.
Skinner, 36 Ch. D. 145, where the
authorities as to setting aside gifts
are collected, the Court refused to
interfere on the ground of laches and



The law and practice with regard to the person and property of infants is of very great importance in proceedings in all divisions of the High Court (see ante, p. 386); but their chief consideration seems to fall with special appropriateness in that portion of this work which is devoted to equity, for the following reasons:

Among the subjects specially assigned to the Chancery Division by sect. 34 of the Judicature Act, 1873, are the "Wardship of Infants and the care of Infants' Estates." It is also specially provided by sect. 25, sub-sect. 10 of the Judicature Act, 1873, that, in questions relating to the custody and education of infants, the rules of equity shall prevail " (1).

To this it may be added, that even in matters in practice, the Chancery Division is made to prevail, as the rules of the Supreme Court provide, "that infants may sue as plaintiffs by their next friends, in the manner heretofore practised in the Chancery Division, and may, in like manner, defend by their guardians appointed for that purpose" (2).

Who then are infants? The Roman law fixed full age (perfecta tas) at twenty-five, and drew distinctions between different points of time under that age. The English law fixes the age of majority at twenty-one; an age said to have been arrived at by allowing one year after the time when the youth was fit to carry heavy armour, and regards all persons below that age as infants. An infant attains his majority on the first moment of the day before his twenty-first birthday. Thus, if an infant were born on the 4th December, 1868, he would attain his majority on the first moment of the 3rd December, 1889.

The law with regard to infants, so far as the business of the

(1) It was, however, decided in Re Goldsworthy, 2 Q. B. D. 75, that the Queen's Bench Division has a concurrent jurisdiction in matters relating to infants, but note, that appli

cations under the Guardianship of Infants Act, 1886, are to be made to the Chancery Division.

(2) R. S. Č. 1883, O. xvi. r. 16.


Chancery Division is concerned, may be considered under four heads:

1. Actions by and against infants.

2. The property of infants.

3. The guardianship, custody, and religious education of infants.

4. The marriage of infants, and the settlement of their property.

An infant commences an action by his next friend, and defends by guardian ad litem (1), and the Court has a power to direct an inquiry whether an action is fit and proper and is for the benefit of an infant, and it has also jurisdiction to stay the action or to remove the next friend and substitute another in his place (2).

The principle on which the Court proceeds in matters relating to infants is, that in the absence of special circumstances to justify its interference, the rights of the father are paramount. This principle is well illustrated by a case (3) which came before the Court of Appeal in 1877; an action had been commenced by a next friend without any communication being made to the father, for the administration of an estate in which infants were entitled to large contingent benefits. A judgment for administration which seems to have been and was assumed by the Court of Appeal to have been in every way proper was obtained.

The father who had no interest adverse to his children, and against whom there was no imputation, applied to be substituted a next friend. The judge of the County Palatine of Lancaster refused the application, alleging as a ground, that there was no authority for the proposition that when an action was about to be instituted a communication must be made to the father. The Court of Appeal made an order substituting the father as next friend.

"The father," said Sir George Jessel," intervenes and says, 'I am the natural guardian of my children. It is for me to consider in what way they should be maintained and educated, and it is for me to judge what is for their benefit both as regards their personal guardianship and the guardianship of their

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Actions by and against infants.

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