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Equitable defences.

executor, having once received assets of his testator, cannot discharge himself under a plea of plenè administravit, against a creditor seeking satisfaction out of the testator's assets, either on the score of inevitable accident, as destruction by fire, loss by robbery or the like, or reasonable confidence disappointed, or loss by any of the various means, which afford excuse to ordinary agents and bailees, in cases of loss without any negligence on their part. (7 East, 258.) Thus in a case where an executor having received assets, and paid them over to a co-executor for the purpose of satisfying a bond-creditor, who had demanded payment from such co-executor, upon the latter applying it in payment of his own simple contract debts, it was held that the executor, who had paid him the money, could not discharge himself by the plea of the plenè administravit to an action by the bond creditor. In equity, however, although an executor is liable should he unnecessarily pay over assets to his coexecutor whereby they are embezzled or lost (Townsend v. Barker, 1 Dick. 356; Langford v. Gascoigne, 11 Ves. 333), yet if the payment were in discharge of a necessary duty, as for the purpose of satisfying creditors residing at a distance from the executor remitting such assets, he would not be liable for their loss. (Bacon v. Bacon, 5 Ves. 331; 2 Tudor's Leading Cases in Equity, 659, 660.) Again, in equity, an executor has been held not liable for the loss of assets occasioned by fire (Lady Croft v. Lyndsey, Freem. Ch. Rep. 1), or robbery (Holt v. Holt, 1 Ch. Ca. 191; Jones v. Lewis, 2 Ves. 240). In these cases an executor might have proceedings against him at law restrained; he may now plead in bar of an action the same circumstances, which would have entitled him to this relief in equity. On the other hand, the plaintiff may, by way of replication, insist upon any of those circumstances, which in equity would have rendered the executor liable, as, for instance, that the payment to the executor was unnecessarily made.

The Courts of Equity also give relief against mistakes. Although relief will not be afforded against the legal consequences of anything done in ignorance of the law, (Marshall v. Collett, 1 Y. & C. Exch. Ca. 238; Great Western Railway Company v. Cripps, 5 Hare, 91; Drew. Inj. 62,) a court of equity will frequently give relief against the legal consequences of mistakes of facts. Where, for instance, a person executed a deed, in which he, by mistake, covenanted to pay a sum of money to another, who commenced an action against him, a court of equity granted an injunction to restrain the action. (Ball v. Storie, 1 S. & S. 210, see also Drew. on Injunct. 62.)

Another very important head under which equity gives Equitable relief is that of fraud, both actual and constructive. defences. There are many cases where a court of law does not take cognizance of what is considered fraud in a court of equity. Where, for instance, the owner of an estate stands by and permits another person to expend money upon it, in ignorance of the owner's title, a court of equity will not allow him, to proceed to take advantage of his legal right, by ejecting, without compensation, the person who has made such expenditure (Hunning v. Ferrers, Gilb. Eq. Rep. 456; Stiles v. Cowper, 3 Atk. 83; Earl of Oxford's Case, 1 Ch. Rep. 1; 2 Tudor's L. C. in Eq. 442; note, p. 456). But in such cases the defendant, it would seem, must still resort to a court of equity, for how can such facts be pleaded as an equitable defence to an action of ejectment? Although the word " cause is used in s. 83, it can never have been contemplated, that the defendants in ejectment should be enabled to plead to the writ. It is clear that it is only in "personal actions" that an equitable defence may be set up by way of plea.

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Again, when a party has conveyed a reversionary or expectant interest for an inadequate value, he can set aside the transaction, in a court of equity, upon the ground that undue advantage has been taken of his position. (Gowland v. De Faria, 17 Ves. 20; Bawtree v. Watson, 3 My. & K. 339; Edwards v. Browne, 2 Coll. 100; Davies v. Cooper, 5 My. & Cr. 270.) In an action against the vendor by the purchaser, for the amount agreed to be paid, the defendant may plead, that it was the sale of a reversionary interest at an undervalue.

In these cases, in equity, the onus of proving the adequacy of the price lies upon the person dealing with the reversioner (Gowland v. De Faria, 17 Ves. 20). Quære, whether it will be so at law? Where, however, the dealing with a reversionary interest is in the nature of a family arrangement (Tweddell v. Tweddell, J. & R. 13; Heron v. Heron, 2 Atk. 160; Wallace v. Wallace, 2 D. and W. 452), or the party having a prior interest joins in the sale (Wood v. Abny, 3 Madd. 422; Wardle v. Carter, 7 Sim. 490), and, according to Lord Brougham, where the transaction was known to the father of the reversioner, or the person from whom the spes successionis was entertained (King v. Hamlet, 2 My. & K.), or if the transaction had been so acted upon as to alter the situation of the other party in his property (Ib. sed vide Sug. V. & P. 316, 11 Ed.), a court of equity will not afford relief; and where a sale of a reversionary or expectant interest has taken place by auction, the purchaser is presumed to have given an adequate price for it (Shelly v. Nash, 3 Madd. 232), unless it appears that by the con

Equitable defences.

ditions of the sale or mode of conducting it, the interests of the reversioner were not properly attended to (Fox v. Wright, 6 Madd. 111). Quære, whether such facts can be set up as avoiding a plea (s. 85) to the effect above stated?

Where an expectant or reversioner borrows money upon a post-obit bond, a court of equity will set it aside if unreasonable, or if the price be inadequate (Curwyn v. Milner, 3 P. Wms. 293, n.; Peacock v. Evans, 16 Ves. 512, and see 1 Tudor's L. C. 394). Such inadequacy of price may, it would seem, be pleaded in bar to an action upon the bond.

Upon the same principle equity will give relief, against proceedings at law, upon instruments obtained by undue influence, from persons standing in some fiduciary relation to the holder, as that of trustee and cestui que trust, guardian and ward, or any other relation in which do minion may be exercised by one person over another, (Huguenin v. Basely, 1 Tudor's L. C., and note Cooke v. Lamotte, 15 Bea, 234, Espe v. Lake, 10 Hare 260). It is presumed that such relation, and the consequences which follow from it, may be urged in a court of law on proceedings being now instituted upon such instruments.

With regard to relief against forfeitures, when a forfeiture is sought, a plea may now be put in, which formerly was only available in equity, as a ground for staying proceedings at law. Thus where a lessee covenants to do or not to do certain acts, with a clause of re-entry for breach of the covenant, and then commits such breach, equity will, under some circumstances, relieve against the strict legal consequences of breach of the obligation by the party bound. So, in some cases, when the thing to be done, the not doing of which has worked the forfeiture at law, can be specifically done, so as to put the party bonâ fide and entirely in statu quo,—or the injury can be compensated by a sum certain, or by damages capable of being estimated by some certain rule of the court, then equity will relieve, and there the facts may now be pleaded. (Drewry on Injunctions, p. 88.) The jurisdiction, which courts of equity assumed, to relieve a tenant from a forfeiture incurred by nonpayment of rent, upon a bill filed after an indefinite period, by payment of the rent due, interest and costs, was limited by the Legislature (4 Geo. II., c. 28) to cases where payment was made, on the bill being filed, within six months after judgment had and recovered in ejectment and execution executed thereon. Courts of law were, however, in the habit of relieving the lessee, by staying proceedings in ejectment, at any time before execution executed, on payment of arrears and costs, and in some cases giving security for future payments. (2, Platt on Leases, 475.)

With regard to the relation of principal and surety, Equitable courts of equity frequently give relief against proceedings Defences. at law. Where, for instance, parties appear on the face of an instrument to be bound jointly and severally, as upon a bond, if one of them only in fact joined as surety, he can in equity plead that he was only a surety; so that if the principal creditor had given time to the debtor, he would be discharged in equity, although held bound at law, (Craythorne v. Swinburne, 4 Ves. 160, 170; Clinton v. Hooper, 1 Ves. jun. 173, 3 Bro. C. C. 201.) It is presumed, that now such person may, in an action against him by the creditor, plead that he was only a surety, and that time was given to the principal debtor.

The courts of law have no power of interference in those cases, where a person has, what is termed, an equitable interest in property. Where, for instance, a tenant has contracted to purchase from his landlord the property of which he is in the occupation, if the landlord take proceedings in ejectment, the tenant must still resort to the Court of Chancery for his injunction to stay proceedings.

Numerous other instances might be given did space permit. All the cases will be found collected in Mr. Drewry's work on Injunctions.


84. Any such matter which, if it arose before or Equitable during the time for pleading, would be an answer to defence after the action by way of plea, may, if it arise after the lapse of the period during which it could be pleaded,

be set up by way of audita querela.

85. The plaintiff may reply, in answer to any plea Equitable of the defendant, facts which avoid such plea upon replication. equitable grounds; provided that such replication shall begin with the words "for replication on equitable grounds," or words to the like effect.

Two questions may arise under this section; first, whether the plaintiff may traverse the facts set forth in the plea? secondly, whether he can demur for want of equity? The section seems to permit only a replication by confession and avoidance; and it may be said, that if the facts stated in the plea are denied, or the sufficiency of the plea itself as a defence disputed, the plaintiff's course is to apply to have the plea struck out under s. 86. Neither difficulty seems capable of being set at rest by a rule of court framed under s. 97, as this is a matter of jurisdiction which can only be defined by the Legislature.


Court or judge may

strike out equitable

86. Provided always, that in case it shall appear to the court, or any judge thereof, that any such equitable plea or equitable replication cannot be dealt with by plea or repli- any court of law so as to do justice between the parties, it shall be lawful for such court or judge to order the same to be struck out, on such terms as to costs and otherwise as to such court or judge may seem reasonable.


If an equitable plea be struck out, it would seem that the defendant must, as hitherto, resort to the Court of Chancery.

Actions on lost instruments.


owners' Act.

87. In case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a judge to order that the loss of such instrument shall not be set up, provided an indemnity is given, to the satisfaction of the court or judge, or a master, against the claims of any other person upon such negotiable instrument.

The loss of a negotiable bill, given on account of a debt, is an answer to an action for the debt, as well as to one on the bill (Crowe v. Clay, 9 Ex. 604); aliter, if the bill or note be not negotiable. (Wain v. Bailey, 10 Ad. and El. 606.)

The defence can only be raised_under a plea alleging the fact (Charnley v. Grundey, 2 Com. Law Rep. 822). Such a plea may, therefore, be struck out on an indemnity being given.

88. The superior courts, or any judge thereof, may, under Ship upon summary application by rule or order, exercise such and the like jurisdiction as may, under the provisions of an Act of Parliament made and passed in the fifty-third year of the reign of his Majesty King George the Third, intituled "An Act to limit the Responsibility of Shipowners in certain cases," be exercised by any court of equity.

53. G. 3. c. 159.

"The Merchant Shipping Repeal Act, 1854 (17 and 18 Vic., c. 120), passed 11th August 1854," [the day before The Common Law Procedure Act, 1854, and which is entitled, "An Act to Repeal certain Acts and parts of Acts relating to Merchant Shipping, and to continue certain provisions in the said Acts," with the exception

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