A. The meaning of the maxim is, that equity discountenances laches. It would, in case of laches, in many cases, be impossible to interfere without doing injustice to third persons. In general, nothing can call a court of equity into activity but conscience, good faith, and reasonable diligence (see Sm. Man. sect. 33.)

Q.-Does equality mean equity? How is this exemplified in the case of a joint purchase?

A.—It is a maxim that "Equity is equality." Therefore equity leans against joint tenancy, on account of the jus accrescendi attendant and the equality being one of chance merely. Consequently, on a joint purchase by two persons who advanced the purchase money in unequal shares, the survivor will be held a trustee for the deceased's representatives to the amount he advanced: (Sm. Man. sect. 35; Lake v. Gibson; Lake v. Craddock, 1 L. C. Eq. 161, 162, 3rd edit.)

Q.-Will the court give relief where one party has no more equity than another, or will it leave the parties to their legal remedy?

A. It is a maxim that "Where the equities are equal, the law prevails." The court will, therefore, only enforce the legal remedy (St. Eq. § 64 c.; Sm. Man. sect. 34), which may be obtained in any division of the High Court.

Q.-Would the court grant relief in favour of legatees or devisees under a will defectively executed? Give the reason for your answer and mention the maxim of equity applicable thereto.

A.-No; the court cannot grant relief in such a case, on the principle that Equity follows the law.'

Q.-Give an instance of the application of the maxim that there is equal equity the law must prevail."

"Where

A.-The following exemplifies this maxim: If a trustee sells to a bonâ fide purchaser for value, without notice of the trust, and passes to him the legal estate, the legal title of the purchaser prevails over the equitable one of the cestui que trust: (St. Eq. § 64 c., and notes; Bassett v. Nosworthy, 2 L. C. Eq. 1 et seq., 2nd edit.; Sm. Man. sect. 34.)

Q.-Explain the maxim "Qui prior est tempore potior est jure," and the limitations of its application.

A. This means that, where equities are equal, the first in time shall prevail. This is the last rule resorted to, and a court of equity will not prefer one to another until it finds, on an examination of their respective merits, that there is no other sufficient ground of preference between them: (see St. Eq. 23, 24, 4th edit.)

Q.-Discuss briefly the defence of a purchaser for valuable consideration without notice, giving cases in which it is and is not sustainable.

A.—The purchaser by such plea admits that a good title did not pass to him it likewise assumes a conflict between a legal and an equitable title, or between the holder of a title legal or equitable, and a person who is trying to assert an equity against him. Such plea cannot be used by a person having an equitable title against another having equal equity who is prior in point of time.

If the purchaser without notice has the legal estate in addition, or the

best right to call for it, his claim is indisputable, as where the equities are equal the law prevails: (see Sug. Eq. pp. 26-28, 4th edit.)

Q-Explain the meaning and effect of the maxim that "Equity acts in personam, the law acts in rem.”

A.—This means that equity could give relief by proceeding against the contracting parties themselves, while a court of law only adjudicated upon titles completed by actual conveyance. Thus, if A. agreed to sell, and B. to purchase, real estate, equity could, though the property be situate abroad, compel either A. or B., if within the jurisdiction, to fulfil his contract in specie; whereas a court of law had no power to order a conveyance, but only to give damages for breach of the contract, or to decide upon the conveyance when actually made: (see Penn v. Lord Baltimore, 2 L. C. Eq. 837, 853, 3rd edit.)

So at law, an agreement not by deed for the use of an easement conferred no title, and might be recalled though value had been paid for it: (Wood v. Leadbitter, 13 M. & W. 838.) But in equity such an agreement would, if for value, be enforced, and the owner of the servient tenement compelled to execute a proper deed of grant: (Duke of Devonshire v. Eglin, 14 Beav. 530; and see Haynes' Eq. 22, 23.)

Q.-Mention any general maxims that occur to you, with illustrations of their practical working.

A.-In addition to what has already been said, we may add that another maxim is that "Equity looks upon that as done which is agreed to be done," as illustrated infra.

Q. What is meant by the equitable doctrine of constructive conversion?

A.-It is that money directed to be employed in the purchase of land, and land directed to be turned into money, are generally regarded as that species of property into which they are directed to be converted. For equity looks upon that as done which ought to be done : (Sm. Man. sect. 42; Fletcher v. Ashburner, 1 L. C. Eq. 659, 2nd edit.)

Q.-If the vendor dies before payment of the purchase money, to whom is it payable?

A. To his personal representative; for real estate contracted or articled to be sold is considered or reputed as money; and equity considers that as done which is agreed to be done: (see Sm. Man. sect. 42; Sug. Conc. V. 122.)

Q.-What is the meaning of the expression "a conversion out and

out."

A.-A testator can by his will so change the nature of his real estate, and impress upon it the character of personal estate, as to exclude all questions concerning it between his real and personal representatives after his death. This is called "conversion out and out:" (Berry v. Usher, 11 Ves, 91; Wms. Exors. 585, 5th edit.)

Q.-A testator devises Blackacre to trustees for sale and division of the proceeds amongst six persons, one of whom dies in his lifetime; he devises the rest of his real estate to B., and bequeaths his personal estate to C. On the sale of Blackacre, who is entitled to the sixth share of the proceeds?

And if the person who at the death of the testator became entitled to that share should afterwards die intestate, before the actual receipt of the share, who would take it in that event?

A.-B., the residuary devisee, is entitled to the one-sixth share of the proceeds of the real estate directed to be sold; but, as personal estate, on his death intestate, it would vest in his administrator in trust for his next of kin (see Ackroyd v. Smithson, 1 Bourne's Chancery Cases, 502; Smith v. Caxton, 4 Madd. 484.)

Q.—What is the law that governs contracts; and, as a general rule, can a contract that is void by the law of the country where it is made be enforced here ?

A. The lex loci contractus, with the exception where the parties at the time of making the contract had a view to a different kingdom : (Chit. Cont. 91, 11th edit.) As a general rule a contract void by the law of the country where it is made cannot be enforced here. But the foreign law must be clearly proved by the party objecting.

ACCIDENT AND MISTAKE.

Question. In what cases falling under the head of accident was relief afforded in equity?

Answer.-In such unforeseen and injurious occurrences as were not attributable to mistake, neglect, or misconduct, if it could be granted with full justice, and if courts of law could not, or originally could not, afford edequate relief. As if stock, directed by will to be set apart to answer an annuity, was reduced by Act of Parliament, equity would decree the deficiency to be made up against the residuary legatees. Also in the case of destroyed, lost, or suppressed deeds; and in certain cases of defective executions of powers, &c.: (Sm. Man. tit. " Accident."

Q. What was the relief given in equity against accident? A.-The relief granted was putting the parties in the same position, as nearly as might be, as they would have been in but for the accident, if there was no adequate remedy at law and the accident occured was of an unforeseen and injurious nature (see St. Eq. tit. "Accident.")

Q.-After a contract for a sale who must bear any loss that may happen to the estate before the completion of the sale; and who is entitled to any benefit that may accrue to the estate during the same time?

A. The estate belongs to the purchaser from the time of the contract; he is therefore entitled to any benefit that may accrue to the estate after this time, and consequently will have to bear any loss which may happen to it during the same period: (see Ld. St. Leonards' Handy Book, 46, 6th edit.)

Q.-A. gives a bond to B. to secure payment of a debt, the bond is lost has B. any, and what, means to compel the payment of it?

A.-A person might always come into a court of equity for the payment of a lost bond; because, until a recent period, no relief was given at law on account of the want of a profert. And it was often proper to grant relief upon the terms of the party giving a bond of indemnity, and a court

of law could not insist on such a bond as part of the judgment (Sm. Man. sect. 75); and in equity the decree of the court was sufficient indemnity: (England v. Tredegar, L. Rep. 1 Eq. 344.) B. can now sue in any division of the High Court.

Q.-If an estate be sold for a certain sum of money and an annuity for the life of the vendor, and the vendor dies before the receipt of any of the annuity, will any relief be granted his representatives?

A.-No; for the vendor's death might have been foreseen, and provided for. It is not "an unforeseen, &c.,' occurrence: (St. Eq. § 104; Sm. Man. sect. 67.)

Q.-Define "mistake" as remediable in equity.

Give some instances in which the court will, and in which it will not, give relief on the ground of mistake.

A.—A mistake as remediable in equity may be defined to be an act which would not have been done, or an omission which would not have occurred, but from ignorance, forgetfulness, inadvertence, mental incompetence, surprise, misplaced confidence, or imposition.

Where the mistake is unilateral and the sufferer is the person by whom it is made, relief will not be granted unless there is some circumstance which gives rise to a presumption that there has been some undue influence, misrepresentation, imposition, mental imbecility, surprise, or confidence abused; and even where this is the case, equity will not interfere as against a bona fide purchaser for valuable consideration without notice. In regard to mistakes in matters of law and fact, see infra.

Q.-Will relief be granted against a mistake of a matter of law? A.-Not as a rule; the maxim being Ignorantia legis non excusat; yet if the mistake is one of title, arising from ignorance of a principle of law of such constant occurrence as to be understood by the community at large this gives rise to a presumption that there has been some undue influence, misrepresentation, &c., exercised, so as to entitle the party to relief (see Sm. Man. tit. 1, ch. 2.)

Q.-Ignorantia legis non excusat. Does this maxim of law apply to equity? State any one or more instances of cases that occur to you. A.-This maxim applies to equity as a general rule, as if A. and B. gave their joint bond to C., and C. releases A., supposing B. would remain liable, C. will get no relief in equity on the ground of mistake of law. So if A. has a power of appointment and executes it absolutely, without reserving a power of revocation, upon a mistake of law that being a voluntary deed it was revocable, no relief will be granted: (see St. Eq. §§ 111, 112.)

Q. Will the court relieve against acts performed under mistaken notions of fact?

A. Yes; as the maxim is Ignorantia facti excusat: (1 Co. 177.) But the mistake must be unilateral, and the fact material, not doubtful, and a fact that could not be ascertained by using ordinary diligence, and of which the other party was under a legal obligation to inform the mistaken person; for, then, a similar presumption arises to that which

EE

causes the court to give relief in certain cases of ignorance of law: (Sm. ubi sup.)

Q. What is the distinction in granting relief, under the head of mistake, between a mistake in a matter of law, and a mistake in a matter of fact?

A. This distinction we have pointed out in the two preceding answers. The ground of this distinction seems to be, that as every man is presumed to know the law, and to act upon the rights which it confers or supports, when he knows all the facts, it is culpable negligence in him to do an act or make a contract, and then to set up his ignorance of law as a defence. But no person can be presumed to be acquainted with all matters of fact; neither is it possible by any degree of diligence in all cases to acquire that knowledge; and, therefore, an ignorance of fact does not import culpable negligence (St. Eq. § 140.)

Q. What is the effect of an appointment under power exercised by the appointor, who imposes a condition to be performed by the appointee which is not authorised by the power?

A.-If the appointee is an object of the power the appointment to him will be good, but the condition invalid: (see Roach v. Trood, 3 Ch. Div. 429.)

Q.-Will the court relieve against the defective execution of a power, and on what general principles ?

A. In the absence of any countervailing equity, relief will be granted where the defect is not of the very essence of the power, and the defective execution was occasioned by accident and is in favour of a charity, or of purchasers, creditors, or a wife, or legitimate child, or an intended husband (see Sm. Man. sect. 78; Tollett v. Tollett, 1 L. C. Eq. 184, 2nd edit.)(a)

Q. When will equity grant relief in the case of the non-execution of a power?

A. Only where the power is coupled with a trust, or the non-execution was occasioned by fraud. In other cases the court will not relieve, for it would be interfering with the donee's discretion in regard to the exercise of the power: (Tollett v. Tollett, sup. ; Harding v. Glyn, 2 L. C. Eq. 789, &c., 3rd edit.; Sm. Man. sect. 79.)

Q.—If, in a will or settlement, the usual power to appoint new trustees has been omitted, will equity remedy the inconvenience; and if so, in what way?

A. Yes; the equity division of the High Court will appoint new trustees: (see 1873 Act, s. 34, sub-s. 2; St. Eq. §§ 1060, 1082.) And by the 13 & 14 Vict. c. 60, may, on petition, make an order appointing new trustees, either in substitution for, or in addition to, any existing trustee or trustees: (sect. 32.) In other cases where the Act 23 & 24 Vict. c. 145, or 44 & 45 Vict. c. 41, operates it enables the surviving trustee, or his executor or administrator, or the last retiring or continuing trustee, to appoint new trustees.

(a) But see 22 & 23 Vict. c. 35, as to mode of executing powers.