followed.*-He adhered to, and strengthened, the salutary doctrine that deeds obtained by the undue exercise of spiritual ascendency will be set aside as fraudulent.t-His decision that the Chancellor has authority to take a child from the custody of an immoral parent, to be placed under a guardian appointed by the Court, was violently attacked, and certainly would be mischievous if acted upon, unless in very rare and extraordinary cases; but, upon appeal, it was affirmed by the unanimous judgment of the House of Lords.‡-I will only mention one more of the doctrines he established, which was, perhaps, the most useful of all, that the procedure of the Court of Chancery must accommodate itself to the growing necessities of society,-upon which he relaxed the strict rule, that all individuals interested must be made parties; and, in spite of his horror of joint-stock companies, he allowed a bill to be filed by several persons on behalf of themselves, and all others the proprietors of an unincorporated institution.§ Although much more in the habit of doubting than overturning judgments brought before him on appeal, he did not shrink from his duty when he was clearly convinced that they were wrong. Thus, upon the abstruse question, whether a power could consist with the fee, Sir Pye exparte, 28 Ves. 149. † 14 Ves. 273; Hugenen v. Beasely. This is the case in which Sir S. Romilly made his best speech. + 2 Russell, 1. § 16 Ves. 321. This case is highly praised by Lord Cottenham. 1 Mylne & Craig, 636. A distinguished equity counsel, very familiarly acquainted with all Lord Eldon's decisions, and fully competent to appreciate their merits, has been good enough to point out to me the following, which are considered by him as the best calculated to show the noble Judge's extraordinary powers : Crowley's case, 2 Swanston, I, respecting the issuing of a writ of habeas corpus by the Chancellor in vacation, and commitments by Commissioners of Bankrupts. Gee v. Pritchard, 2 Swanston, 402, respecting the right of a person who addresses letters to another to obtain an injunction against the publication of them. Gibson v. Jeyes, 6 Vesey, 266, respecting dealings of purchase and sale between a solicitor and his client. Aldrech v. Cooper, 8 Vesey, 381, respecting the right of simple contract creditors to come upon the real estate in the marshalling of assets. Morice v. Bishop of Durham, 10 Vesey, 522, respecting the effect of a bequest in trust for "objects of benevolence and liberality," without specifying them. Mills v. Farmer, Merivale, 55, respecting the effect of a bequest for a charitable purpose, without specifying it; and Ex parte Rawson, Jacob, 274, in which he held that, "where part of the account between two mercantile houses which become bankrupt consists of bills that may be proved against both estates, there can be no proof in respect of those bills as between the two houses, unless there is a surplus after satisfying the holders of the bills." This indication may be useful to the student. I had intended, at all risks, to enter much more elaborately into the consideration of Lord Eldon's decisions, but want of space entirely debars me from the attempt, having already exceeded my original limits by two heavy octavos. William Grant having rejected the seeming absurdity of giving a special power where there was already an absolute dominion, Lord Eldon, more deeply versed in the laws of real property, held that the two things might be united in the same individual; and his decision was approved of by the profession.* So, the same respected Judge having held that a charitable trust was too vague for the Court to execute, Lord Eldon ruled that it came within the class of privileged legacies, saying: “To give effect to a bequest in favour of a charity, the Court will supply the place of an executor, and carry into effect that which in the case of individuals must have failed altogether. This distinction has proceeded partly, perhaps, on the principles in the Roman law which we do not at this time perfectly comprehend,t-and partly, no doubt, on the religious notions which formerly obtained in this country, according to which it fell to the ordinary's province to distribute in case of intestacy."-In the famous case of Cholmondeley v. Clinton, he was unwilling to take upon himself the reversal of Sir William Grant's decree; but, when it had been reversed on a rehearing before Sir Thomas Plumer, he heartily concurred in the salutary doctrine, that "adverse possession for twenty years is a bar to equitable relief as well as to an ejectment,"-on which rests the recent statute of limitations.§-Sir William Grant had held, that no appointment under a power to divide settled property among children could be set aside as illusory,—thus reasoning very powerfully: To say that an illusory share must not be given, or that a substantial share must be given, is rather to raise a question than establish a rule. What is an illusory share, and what is a substantial share? Is it to be judged of upon a mere statement of the sum given, without reference to the amount of the fortune, which is the subject of the power? If so, what is the sum that must be given to exclude the interference of the Court? What is the limit of amount at which it ceases to be illusory and begins to be substantial? If it is to be considered with reference to the amount of the fortune, what is the proportion, either of the whole or of the share, that would belong to each upon an equal division? In terms, the power, though limited as to objects, is discretionary as to shares. A Court of Law says, no object can be excluded; but there it stops. Every instrument must receive the same construction from every Court. Whatever must be its true meaning, must be its meaning every where. A Court of Equity may supply defects in the execution of a power; but I cannot understand how the question, whether a power is well or ill executed, can receive a different determination in different Courts." Lord Eldon, however, said: "If a series of uniform authorities, through a course of centuries, prove that this Court has undertaken the difficult task of judging whether the execution of a power 10 Ves. 246. 66 If he had condescended to look into the writers on the civil law, he would have found these principles fully explained and defended. See Story on Equity Jurisprudence, vol. ii. 365-383. 6 was reasonable or not,-using expressions more or less vague and loose, as, that the share must be reasonable, fair, a substantial share, a provision, that the power is to be exercised consistently with justice,'-expressions that must distress the mind of any judge required to act upon them,—I should pause in giving judgment, if bound to decide upon those authorities, with reference to the principle stated in the cases now before me, which, in effect (and it would be better to do it in words,) destroys all the authorities, as no two cases will probably ever be the same. If the Court has this authority to consider whether the execution of such a trust, or a power coupled with a trust, is reasonable, it seems to me better to deny the doctrine at once than to lay down a rule that will destroy it in effect,-looking only to sums and figures, and considering in each case whether the motives and circumstances by which the judgment among the different objects was regulated, were the same.' The legislature has adopted the reasoning of Sir William Grant; and, by an act which I had the honour to introduce in the House of Commons, it is declared that no appointment shall be set aside in equity on the ground of its being illusory.t Once, at least, Lord Eldon changed his opinion. In Exparte Notte, the question being whether, where several firms are engaged in a joint adventure, the creditors of the adventure, in the event of bankruptcy and there being no joint property, may prove against the estates of the firms, or are confined to the estates of the individuals? Lord Eldon being much pressed with his own decision in Exparte Wylie, in which he had held, under similar circumstances, that the estates of the individuals only were liable, he said, "I feel bound to add, with respect to the case of Exparte Wylie, which has been so repeatedly appealed to during the argument, that as the first duty of a Judge is to endeavour, in the case before him, to decide rightly, and that his next is, if in any future case of the like kind he has reason to apprehend that his judgment was not upon such sound principles as it appeared to be when he pronounced it, that he should not hesitate to rectify his error;-looking at both these obligations, I feel myself bound to state that I must, when I decided that case, have seen it in a point of view in which, after most laborious consideration, I cannot see it now." Accordingly the proof was ordered against the estates of the several firms engaged in the joint adventure. When legal questions arose before Lord Eldon, he would send a case for the opinion of a Court of Law. He used to say that he had "all possible respect" for the Common Law Judges, which ought to have been high, for most of them were of his own nomination. But he treated them rather like school-boys, always pleased when he could * Butcher v. Butcher, 9 Ves. 393; Box v. Whitbread, 16 Ves. 18. § Lord Hardwicke palinoded more briefly, and perhaps more gracefully,merely saying, "Upon this case being re-argued and re-considered, I am thoroughly convinced that my former decree was wrong." Walmsley v. Booth, 2 Atk. 27. tell a good story against them. He took particular delight in relating how, to ascertain what estate passed to trustees under a settlement, he sent a case to the Court of King's Bench, who told him they took an estate in fee; and how he then sent the same case to the Court of Common Pleas, who certified that the trustees took no estate at all. "Now I was impertinent enough to think," he used to proceed, "that they were both wrong; I held that the trustees took a chattel interest; and, what is more, my decision satisfied all parties." * He often said, that although when sitting in the Court of Chancery he felt himself bound by former decisions, it would be otherwise if an appeal were brought in the House of Lords, and he would offer facilities for obtaining a hearing there, but he was still found to adhere to the opinion he had originally expressed. I am aware only of two cases in which his judgment was reversed, and in each of these it was on the motion of Lord Redesdale. Neither of them involved any point of general interest. The first was Stuart v. Marquis of Bute, on the construction of a will. The testator had devised and bequeathed "all and every the wagon-ways, rails, staiths, and all implements, utensils, and things used and employed," with certain collieries, to trustees, on certain trusts; and the question was, whether, under the word “ things," coals actually raised, debts due to the concern, and money of the concern in the hands of a banker, passed?-Lord Loughborough, shortly before his resignation, having held that they did, there was a re-hearing before Lord Eldon, who, after expressing much doubt, said, " Upon the whole, it is better for me to affirm the decree; not as being satisfied with the principle of it, but as I cannot make a decree with which I could be better satisfied."† 66 An appeal being brought to the House of Lords, Lord Redesdale said, that although horses, hay, and corn used in the collieries would pass, the meaning of the word "things," must be restrained to "things ejusdem generis;" and therefore that the [JUNE 28, 1813.] coals, debts, and money in dispute must go to the executor. Lord Eldon: "I think myself highly fortunate in having the assistance of my noble and learned friend, in whose view of the question I completely concur." So the decree was reversed. The other case was Jackson v. Lunes, turning on considerations still more technical, and decided by Lord Eldon on a supposed recollection of an unreported dictum of Lord Thurlow, which (according to the precedent of Anthony and Cæsar's will) he was in the habit of resorting to when at a loss for an authority. But after the hearing at the bar of the House of Lords, Lord Redesdale having expressed [A. D. 1819.] a clear opinion that the decree was wrong, Lord Eldon said: "I conceive it to have been the opinion of Lord Thurlow that in order to dispose of the equity of redemption of the wife in an estate * 1 Swanst. 32; 1 Wils. Ch. Cas. 45; 18 Ves. 325; 11 East, 458; 3 Taunt. 316; 10 Ves. 495; 1 N. R. 116; 7 East, 97; Dow, 102. † Feb. 1806; 11 Ves. 607. + 1 Dow, 73. § 16 Ves. 356. it was absolutely necessary there should be in the recitals of the instrument some expression that the parties meant it so that it was not enough to collect the intention from the limitations; but that there must be something more upon the face of the deed, to lead the wife to understand what those limitations were. It does, however, occur to me, on looking into the cases which have been referred to, that such a proposition cannot be supported, and therefore I am of opinion that the decree must be reversed." The non-reversal of decrees (as I have often had occasion to observe) is but a poor proof of the merits of a Chancellor. Lord Eldon's judicial fame rests on the surer basis of the universal respect of the profession. Amid the war of jarring factions, while he was still on the woolsack, he was considered an oracle of law, both by foes and friends; since then his authority has in no degree declined; and there is no rashness in prophesying, that, for ages to come, his opinion, where it can be discovered, will rule the cases to which it is applicable. To prove, however, that I do not reverence him like the blind worshipper of an idol, I will mention two or three of his decisions which were not quite satisfactory to Westminster Hall, and which possibly may hereafter be overturned.* He had such a horror of "forestalling and regrating," by which he had heard his grandmother at Newcastle, and afterwards his tutor at Oxford say, "the price of provisions is cruelly enhanced to the poor," that all agreements savouring even of forestalling or regrating he held to be immoral, contrary to public policy, illegal, and void. Thus, an association of wholesale grocers, instituted under the title of the“ Fruit Club," for the purpose of making purchases of inported fruits, and supplying the general trade, having brought an action against a person to whom they had sold a cargo, for the price of it, the purchaser, contending that they had not duly performed their part of the contract, filed a bill praying a discovery and an injunction. On a demurrer to the bill, Lord Eldon said, "This is not, according to the legal definition of the term, forestalling, much less regrating, still less monopolizing; but in the consideration of a Court of Equity it contains the mischief of all the three. First, there is a conspiracy against the vendors; next a conspiracy against the world at large, enabling those persons to buy at any price they may think proper; and then it is true they can if they please sell at a lower price than a fair competition in the market would produce; but it must also be recollected that they can sell on their own terms; and the manner in which that discretion would be exercised is obvious. Then, as between these parties, the complaint is, that it is immoral in the vendors not to let the purchaser have his bargain. What is that but an agreement that they shall be partners in a transaction in which they know they are acting illegally?" So the demurrer was allowed;—and on the same principle, the action at law could not be main * Of course I do so without prejudice to my right fully to concur in them after argument and further consideration, if I should ever be called upon judicially to review them in the House of Lords. |