Landmark Cases in Equity 9781474200790, 9781849461542

Landmark Cases in Equity continues the series of essay collections which began with Landmark Cases in the Law of Restitu

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Landmark Cases in Equity
 9781474200790, 9781849461542

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Preface Readers of our previous volumes of Landmark Cases essays—on the law of restitution, contract and tort—will notice something different about Landmark Cases in Equity. It is twice the length of its predecessors. This expansion is not meant to suggest that equity is somehow more important than the other topics, or that there are twice as many landmark cases in equity as there are in restitution, contract or tort. The reason is rather that we were fortunate enough to obtain funding from the Society of Legal Scholars to hold a significantly larger event than the workshops out of which the earlier volumes were born: a two-day conference at the Faculty of Laws, University College London, at which earlier versions of the essays in this volume were presented to a large audience of equity scholars, legal historians, judges, legal practitioners and students. We are most grateful to the Society of Legal Scholars, and also to Richard Hart of Hart Publishing, for their financial support, without which staging the event would not have been possible. We are also grateful to Lisa Penfold, the UCL Faculty of Laws events manager, for her expert professional assistance in making the occasion a rewarding experience for all who attended. Although it is longer than its predecessors, readers of our earlier volumes will recognise many features of Landmark Cases in Equity. The authors were given a free choice of topic and methodological approach, and a wide range of equitable doctrines is investigated in this volume. Some authors have chosen to examine their cases within the framework of their contemporary settings, others to take a longer view and to consider the impact which their cases have had on the thinking of subsequent generations. Some have focused their attention on purely doctrinal developments, while others have looked at the social, economic or political background to their case. A variety of topics is addressed, including the nature of the courts’ equitable jurisdiction (The Earl of Oxford’s Case; Penn v Lord Baltimore; Re Earl of Sefton), the development (or non-development) of property rights in equity (Burgess v Wheate; Tulk v Moxhay; Ramsden v Dyson; National Provincial Bank Ltd v Ainsworth), constraints on the powers of settlors to create charitable trusts (Morice v Bishop of Durham; National Anti-Vivisection Soc v IRC), the duties of trustees and other fiduciaries (North-West Transportation Co Ltd v Beatty; Regal (Hastings) Ltd v Gulliver; Boardman v Phipps), remedies for breach of trust and breach of fiduciary duty (Re Hallett’s Estate; Nocton v Lord Ashburton; Paragon Finance plc v DB Thakerar & Co (a firm)), and the evolution of constructive and resulting trusts (Coke v Fountaine; Lord Grey v Lady Grey;

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Gissing v Gissing). Recurring themes include a concern with classification, the dominance of particular individuals in the development of equitable principles, equity’s relevance to political questions (both domestically and abroad), and the interpenetration of equity and common law. Since this is likely to be the last of the Landmark Cases series that we edit together, we should like to take this opportunity to express our thanks to all of the authors of essays in the volumes on restitution, contract, tort and equity. We hope that these volumes show that the study of individual cases, as pioneered by the late Brian Simpson, is a flourishing and fruitful form of academic literature. There is much to be gained from reassessing what we know about the cases by which we habitually orientate ourselves. Charles Mitchell and Paul Mitchell University College London

Contributors Lionel Bently is Herchel Smith Professor of Intellectual Property, and Director of the Centre of Intellectual Property and Information Law, at the University of Cambridge, and a Professorial Fellow of Emmanuel College, Cambridge. Michael Bryan is an Emeritus Professor of Law at the University of Melbourne. Christian Daly is a Lecturer in Law at BPP Law School. Alison Dunn is a Senior Lecturer in Law at Newcastle University. The Hon Justice James Edelman is a Justice of the Supreme Court of Western Australia. Jonathan Garton is an Associate Professor (Reader) in Law at the University of Warwick. Joshua Getzler is a Fellow and Tutor in Law at St Hugh’s College, Oxford, Professor of Law and Legal History at the University of Oxford, and Conjoint Professor of Law at the University of New South Wales. Jamie Glister is a Senior Lecturer in Law at the University of Sydney. David Ibbetson is Regius Professor of Civil Law in the University of Cambridge, and a Fellow of Corpus Christi College, Cambridge. Ying Khai Liew is a Lecturer in Law at King’s College London. Catharine MacMillan is a Reader in Legal History at Queen Mary, University of London. Mike Macnair is Ann Smart Fellow and Tutor in Law at St Hugh’s College, Oxford. Paul Matthews is a Visiting Professor of Law at King’s College London, a consultant solicitor with Withers LLP, a deputy chancery master, a recorder in the specialist civil jurisdiction and coroner for the City of London. Ben McFarlane is a Fellow and Tutor in Law at Trinity College, Oxford, and a Reader in Property Law at the University of Oxford. John Mee is a Professor of Law at University College Cork. Charles Mitchell is a Professor of Law at University College London.

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Paul Mitchell is a Professor of Laws at University College London. Richard Nolan is a Fellow and Tutor in Law at St John’s College, Cambridge, a Reader in Corporate and Trust Law at the University of Cambridge, and a barrister at Erskine Chambers, Lincoln’s Inn. Nick Piška is a Lecturer in Law at the University of Kent. Charlotte Smith is a Senior Lecturer in Law, and Co-Director of the Forum for Legal and Historical Research, at the University of Reading. Lionel Smith is James McGill Professor of Law, and Director of the Paul-André Crépeau Centre for Private and Comparative Law, at McGill University. Chantal Stebbings is Professor of Law and Legal History, and Director of the Centre for Legal History Research, at the University of Exeter. Graham Virgo is a Fellow and Senior Tutor of Downing College, Cambridge, Professor of English Private Law at the University of Cambridge, and a Bencher of Lincoln’s Inn.

Table of Cases Aas v Benham [1891] Ch 244 (CA) ............................................................ 593, 597 Abbey National Building Society v Cann [1991] 1 AC 56 (HL) ......................... 431 Abbot v Burton (1708) 2 Salk 590, 91 ER 494 .................................................. 134 Abernethy v Hutchinson (1824–25) 1 H & Tw 28, 47 ER 1313, (1825) LJ Ch (OS) 209 ..................................... 241, 247, 248, 254, 255, 256, 261 Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ......................... 259 Adamson, ex parte (1878) 8 Ch App 807........................................................... 490 A-G v Bishop of Oxford (1786) ......................................................................... 185 A-G v Doyley (1735) 4 Vin 485, 2 Eq Cas Ab 194, 22 ER 167 .................. 190, 194 A-G v Duke of Leeds (1833) 2 My & K 343, 39 ER 974 ........................... 117, 146 A-G v Guardian (No 2) [1990] AC 109 (HL) ............................. 260, 262, 266, 671 A-G v Ironmongers’ Company (1834) 2 My & K 576, 39 ER 1064 .................................................................................................... 189 A-G v Jonathan Cape [1976] QB 752 .......................................................... 260–61 A-G v Lady Downing (1767) Wilmot 1, 97 ER 1 ......................................... 183–86 A-G v Marquis of Ailesbury (1887) 12 App Cas 672 ......................................... 467 A-G v Mayor etc of Coventry (1700) 3 Madd 353, 56 ER 535 ............................ 60 A-G v Whorwood (1750) 1 Ves Sen 534, 27 ER 1188 ................................. 181–82 A-G (ex rel Elisha & Ors) v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 98 ALR 327........................................................... 306 A-G for Hong Kong v Reid [1994] 1 AC 324 (PC)............................. 603, 671, 672 A-G of Ontario v Mercer (1883) 8 App Cas 767.......................................... 116–17 A-G of Victoria (ex rel Archbishop Harkianakis) v St John the Prodromos Greek Orthodox Community Inc [2000] VSC 12 ................... 306 Agip (Africa) Ltd v Jackson [1990] Ch 265, [1991] Ch 547 (CA) ................................................................. 381–82, 387, 665 AIB Group (UK) Plc v Mark Redler & Co (a firm) [2012] EWHC 35 (Ch)............................................................................................... 645 AID/Watch Inc v Commissioner of Taxation [2010] HCA 42, (2010) 241 CLR 539 ........................................................................ 199, 554–55 Alec Lobb v Total Oil [1985] 1 WLR 173 (CA) ................................................. 354 Allen v Rea Brothers Trustees Ltd [2002] EWCA Civ 85, (2002) 4 ITELR 627 ....................................................................................... 665 Allen v Snyder [1977] 2 NSWLR 685 ................................................................ 666 Amalgamated Investment Ltd v Texas Commerce Bank Ltd [1982] QB 84 (CA) ......................................................................... 578 Ambrose v Ambrose (1716) 1 P Wms 321, 24 ER 407......................................... 60 Anchor Line (Henderson Brothers) Ltd, In re [1937] Ch 483 (Ch D) ................. 111 Anderson v McPherson [No 2] [2012] WASC 19 ................................................. 83

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Andrew v Wrigley (1792) 4 Bro CC 125, 29 ER 812 ......................................... 659 Anglia Roman Catholic Trustee v Milthorn Engineering Ltd, 18 Trust Law International, 160 ..................................................................... 153 Angus v Angus (1737) West Temp Hardwicke 23, 25 ER 800............................ 102 Anon (1683) 2 Ventris 361, 86 ER 486 ................................................................ 60 Anon (1692) 2 Freem 123, 22 ER 1100 ............................................................... 60 Anon 2 P Wms 75, 24 ER 646 ............................................................................. 99 Appleton v Appleton [1965] 1 WLR 25 (CA)................................... .563, 574, 615, 620, 624 Apsley and Ruswell’s Case 1 Rolle 192, 81 ER 424, 1 Rolle 218, 81 ER 443 .................................................................................... 28 Archbold v Scully (1861) 9 HLC 360, 11 ER 769 .............................................. 651 Argyll (Duchess of) v Argyll (Duke of) see Duchess of Argyll v Duke of Argyll Arklow Investments Ltd v Maclean [2000] 1 WLR 594 (PC) ............................. 489 Armitage v Nurse [1998] Ch 241 (CA) ...................................................... 354, 491 Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch) ....................................................................................... 672 Ashburn Anstalt v Arnold [1989] Ch 1 (CA)...................................................... 564 Astor’s Settlement Trusts, Re [1952] Ch 534 (Ch D) .................................. 159, 199 Atkinson v Leonard (1791) 3 Bro CC 218, 29 ER 499....................................... 104 Australian Elizabethan Theatre Trust, Re (1991) 30 FCR 491 ........................... 666 Baden (No 2), Re [1972] 2 All ER 1304 (CA) .................................................... 228 Bagus Investments Ltd v Kastening 2010 JRC 144, 2010 JLR 355..................... 664 Bailiff of Burford v Lenthall (1743) 2 Atk 553, 26 ER 731 ................................ 189 Bairstow v Queens Moat Houses plc [2001] EWCA Civ 712, [2001] 2 BCLC 531 ........................................................................................ 663 Baker v Read (1854) 18 Beav 398, 52 ER 157 ........................................... 650, 651 Baker v Sutton (1836) 1 Keen 224, 48 ER 292................................................... 195 Balfour v Balfour [1919] 2 KB 571 (CA) ............................................................ 623 Bank of Credit & Commerce International (Overseas) Ltd (in liq) v Jan unreported 17 November 1999 (Ch D) ...................................... 670 Bank of Credit & Commerce International SA v Saadi [2005] EWHC 2256 (QB) .......................................................................................... 670 Bank of Ireland v Pexxnet Ltd [2010] EWHC 1872 (Comm) ............................. 672 Bank of Montreal v Stuart [1911] AC 120 (PC) ................................................. 484 Banner Homes Holdings Ltd v Luff Developments Ltd (No 2) [2000] Ch 372 (CA) ....................................................................... 663, 666, 667 Bannister v Bannister [1948] 2 All ER 133 (CA) .................. 439, 446, 447–48, 451 Banque Belge pour l’Etranger v Hambrouck [1921] 1 KB 321 (CA).................................................................................. 386–87, 665 Barclay v Russell (1793) 3 Ves Jun 424, 30 ER 1087 ......................................... 147 Barclay’s Bank plc v O’Brien [1994] 1 AC 180 (HL) ............................ 354, 568–69 Barclays Bank Ltd v Bird [1954] 2 WLR 319 (Ch D) ......................... 561, 562, 567 Barker v Stickney [1919] 1 KB 121 (CA)............................................ 220, 226, 229 Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 (CA) ............................................................................................ 385

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Barnes v Addy (1874) LR 9 Ch App 244............................................................ 665 Barney, Re [1892] 2 Ch 265 (Ch D) ................................................................... 665 Barnhart v Greenshields (1853) 9 Moo PC 18, 14 ER 204 ................................. 565 Barron v Martin (1815) 19 Ves Jun 327, 34 ER 539 .......................... 653, 655, 657 Barron v Potter [1914] 1 Ch 895 (Ch D) ............................................................ 527 Barrow v Wadkin (1857) 24 Beav 1, 53 ER 257 ................................................ 147 Barrow’s Case (1880) 14 Ch D 432 (CA) ............................................................. 77 Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] 1 Ch 539 (Ch D) .............. 490 Bartlett v Pickersgill (1760) 1 Cox 15, 29 ER 1041...................................... 435–36 Bates’ Case (1606) Lane 22, 145 ER 267 ............................................................. 24 Bath v Standard Land Co Ltd [1911] 1 Ch 618 (CA) ......................................... 668 Bathurst CC v PWC Properties Pty Ltd (1998) 195 CLR 566 ............................ 666 Baugh v Price (1752) 1 Wil K B 320, 95 ER 640 ................................................ 333 Bax, ex parte (1751) 2 Ves Sen 388, 28 ER 248 ................................................. 490 BCE Inc v 1976 Debentureholders [2008] SCC 69, [2008] 3 SCR 560............... 411 Beale v Symonds (1853) 16 Beav 406, 51 ER 835 .............................................. 146 Beall v Smith (1873) LR 9 Ch App 85 ................................................................ 460 Beaney (dec’d), Re [1978] 1 WLR 770 (Ch D) ..................................................... 79 Beatty v Neelon (1885) 9 OR 385 (Ch D) 387, (1885) 12 OAR 50 (CA), (1886) 13 SCR 1 (SCC) .............................. 401–2, 406 Beatty v North–West Transportation Co (1884) 6 OR 300 (Ch D), (1885) 11 OAR 205 (CA), (1886) 12 SCR 598 (SCC) .................................................... 404, 406–8, 413–14 Beatty v Oille (1886) 12 SCR 706 ...................................................................... 404 Beaumont v Oliveira (1868–69) LR 6 Eq 53, LR 4 Ch 31 .................................. 199 Beckford v Wade (1805) 17 Ves Jun 87, 34 ER 34 ............................................. 659 Beckley v Newland (1723) 2 P Wms 182, 24 ER 691................................... 60, 333 Beemer v Brownridge [1934] 1 WWR 545 (Sask CA) ........................................ 432 Bell Group v Westpac (No 9) [2008] WASC 239 ................................................ 664 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250 (CA) ................................................................................................... 645 Bendall v McWhirter [1952] 2 QB 466 (CA)................................. 559–61, 564–65, 573, 577 Benjamin, Re [1902] 1 Ch 723 (Ch D) ............................................................... 145 Bennet v Davis (1725) 2 P Wms 316, 24 ER 746 ............................................... 575 Bennett, ex parte (1805) 10 Ves Jun 381, 32 ER 893 ......................................... 668 Beridge, Re (1884) 50 LT 653 ............................................................................ 466 Berney v Pitt (1686) 2 Vern CC 14, 23 ER 620, (1686) 2 Ch Rep 396, 21 ER 697 .............................................................................. 332 Bertie v Falkland (1697) 3 Ch Cas 129, 1 Salk 231, 91 ER 205 ......................... 130 Berty v Falkland 12 Mod 182, 88 ER 1248.......................................................... 60 Beverley’s Case (1603) 4 Co Rep 123b, 76 ER 1118 .......................................... 461 Beynon v Cook (1875) LR 10 Ch App 389 ........................................................ 354 Binions v Evans [1972] Ch 359 (CA) ................................................. 564, 572, 578 Birt v Burt (1879) 11 Ch D 773n ....................................................................... 371 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384 ........................................................................................ 593

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Bishop of Cape Town v Bishop of Natal (1869) 6 Moo PC NS 203, 16 ER 702 ............................................................... 311, 326 Bishop of Cloyne v Young (1750) 2 Ves Sen 91, 28 ER 60 ......................... 187, 190 Bishop of Natal v Gladstone (1866) LR 3 Eq 1 ............................................ 305–28 Bishop of Natal v Green (1868) 18 LT 112 ................................................ 311, 326 Bishop of Natal, Re (1864) 3 Moo PC (NS) 115, 16 ER 43 (PC) .................................................................. 311–15, 318, 321, 324 Biss, Re [1903] 2 Ch 40 (CA) ..................................................................... 596, 670 Blake, Re (1889) 60 LT 663 ............................................................................... 655 Blake, Re [1932] 1 Ch 54 (Ch D) ....................................................................... 659 Blomley v Ryan (1956) 99 CLR 362 (HCA) ....................................................... 354 Bloye’s WT, Re (1849) 1 Mac & G 488, 41 ER 1354 ......................................... 668 Blyth v Fladgate [1891] 1 Ch 237 (Ch D)........................................................... 665 Boardman v Phipps [1967] 2 AC 46, [1966] 3 WLR 1009, [1966] 3 All ER 721 (HL)........................................................ 499, 517–18, 522, 580, 581–610 Bofinger v Kingsway Group Ltd [2009] HCA 44, (2009) 239 CLR 269 ...................................................................................... 497 Bolkiah v KPMG [1999] 2 AC 222 (HL)............................................................ 592 Bonanza Creek Gold Mining Co v R [1916] 1 AC 566 (PC) .............................. 412 Bonar Law Memorial Trust v Inland Revenue Commissioners (1933) 17 TC 508 .................................................................. 541 Bond, Re [1901] 1 Ch 15 (Ch D) ............................................................... 147, 148 Bonney v Ridgard (1784) 1 Cox 145, 29 ER 1101 ..................................... 652, 659 Boscawen v Bajwa [1996] 1 WLR 328 (CA) .............................................. 383, 387 Bostitch Inc v McGarry & Cole Ltd [1964] RPC 173 ........................................ 259 Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch D 389 ............... 480, 514 Boswell v Coaks (No 1) (1886) LR 11 App Cas 232 .......................................... 668 Boumediene v Bush 553 US 723 (2008) ............................................................... 66 Bowling v Bank of New Haven 219 Ky 731 (1927) ........................................... 388 Bowman v Secular Society [1917] AC 406 (HL)........................... 199, 539, 541–43 Box v Barclays Bank plc [1998] Lloyd’s Rep Bank 185 (Ch D) .......................... 672 Bradley-Hole v Cusen [1953] 1 All ER 87 (CA) ......................................... 560, 561 Bramwell v Bramwell [1942] 1 KB 370 (CA) ..................................................... 561 Brandon v Robinson (1811) 18 Ves 429, 34 ER 379 .......................................... 576 Bray v Ford [1896] AC 44 (HL) ......................................................................... 514 Brazilian Rubber Plantations & Estates Ltd, Re [1911] 1 Ch 425 (Ch D) ............................................................................ 504 Bree v Holbech (1781) 2 Doug 654, 99 ER 415 ................................................. 478 Breen v Williams (1996) 186 CLR 71 ................................................................ 497 Brian Collins (Engineers) Ltd v Charles Roberts & Co Ltd [1965] RPC 429 ............................................................................................. 259 Bridgeman v Green (1755) 2 Ves Sen 627, 28 ER 399 .................................. 49, 177 Briggs v Penny (1849) 3 De G & Sm 525, 64 ER 590 ........................................ 199 Briggs v Penny (1851) 3 Mac & G 546, 42 ER 371 ............................................. 36 Bright v Legerton (1860) 29 Beav 60, 54 ER 548, (1861) 2 De G F & J 606, 45 ER 755 ..................................................... 656, 657

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Bristol & West Building Society v Mothew [1998] Ch 1 (CA) ............ 497, 644, 645 British Mutual Investment Co v Cobbold (1875) LR 19 Eq 627 ........................ 493 British Red Cross Balkan Fund, Re [1914] 2 Ch 419 (Ch D).............................. 385 British South Africa Co v Companhia de Moçambique [1893] AC 602 (HL) .................................................................................................... 88 Brittlebank v Goodwin (1868) LR 5 Eq 545 .............................................. 655, 656 Bromley v Smith (1859) 26 Beav 644, 53 ER 1047 ............................................ 331 Brooks v Muckleston [1909] 2 Ch 519 (Ch D)................................................... 651 Brown v Adams (1869) LR 4 Ch 764 ................................................. 366, 371, 373 Brown v Brown [1993] NSWCA 38, (1993) 31 NSWLR 582 .................. 79–80, 82 Brown v Higgs (1803) 8 Ves Jun 573, 32 ER 473 .............................................. 190 Brown v Inland Revenue Commissioners [1965] AC 244 (HL) .......................... 520 Brown v Savage (1674) 73 SS 103 ........................................................................ 45 Brown v Yeall unreported, noted in Moggridge v Thackwell ...................... 181, 195 Brownlie v Campbell (1880) LR 5 App Cas 925 ................................................ 487 Bulmer, Re [1937] Ch 499 (CA) ......................................................................... 668 Burdick v Garrick (1870) LR 5 Ch App CA (Ch) 233 ................................ 433, 495 Burge, Re (1887) 57 LT 364 ............................................................................... 655 Burgess v Wheate (1759) 1 Wm Bl 123, 96 ER 67, 1 Eden 177, 28 ER 652 ............................................................................ 115–55 Burland v Earle (1900) 27 OAC 540 (CA), [1902] AC 83 (PC) ................................................................................. 409, 414 Burns v Burns [1984] Ch 317 (CA) ............................................ 575, 580, 629, 636 Burrowes v Locke (1805) 10 Ves 470, 32 ER 927 .............................. 480, 486, 487 Byrnes v Kendle [2011] HCA 26 ........................................................................ 191 Cadd v Cadd (1909) 9 CLR 171 (HCA)....................................................... 79, 433 Cadogan Petroleum plc v Tolley [2011] EWHC 2286 (Ch), [2012] 1 P. & C.R. DG5 ................................................................................ 670 Caffrey v Darby (1801) 6 Ves Sen 489, 31 ER 1159 .......................................... 596 Caird v Sime (1887) 12 App Cas 326 (HL) .................................................. 257–58 Calvin v Smith (1608) 7 Co Rep 1a, 77 ER 399 ................................................. 311 Campbell v Mirror Group Newspapers [2004] UKHL 22, [2004] 2 AC 457 ...................................................................................... 264–66 Campbell Discount Co Ltd v Bridge [1961] 2 WLR 596 (CA) ........................... 561 Campden Hill Ltd v Chakrani [2005] EWHC 911 (Ch) ..................................... 382 Canadian Oil Works Corp, Re (1875) LR 10 Ch App 593 ................................. 668 Candler v Crane, Christmas & Co [1951] 2 KB 164 (CA) ................................. 496 Cann v Wilson (1888) 39 Ch D 39..................................................................... 479 Cartwright v Pettus (1675) 2 Ch Ca 214, 22 ER 916 ......................................... 100 Casborne v Scarfe (1737) 1 Atk 603, 26 ER 377................................................ 429 Case of Tanistry (1608) Dav 28, 80 ER 516 ......................................................... 25 Catt v Tourle (1869) LR 4 Ch App 654.............................................................. 219 Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] Ch 353............................... 647 Caudrey’s Case (1591) 5 Co Rep 1a, 77 ER 1 .................................................... 320 Cave v Mackenzie (1877) 46 LJ Ch 564 (Ch)..................................... 434, 435, 436 Cedric Slack & Partners Ltd (in liq) v Slack [2010] EWCA Civ 204............................................................................................... 670

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Central Bank of Nigeria v Williams [2012] EWCA Civ 415 ....................... 647, 664 Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168 ........................................................... 549 Central London Property Trust Co Ltd v High Trees House Ltd [1947] KB 130 .............................................................................. 222 Chalmer v Bradley (1819) 1 J & W 51, 37 ER 294 ............................................ 655 Chameleon Mining NL v Murchison Metals Ltd [2012] FCAFC 6 ........................................................................................................ 605 Chan v Zacharia (1984) 154 CLR 178....................................... 520, 596, 610, 669 Chapman, Re [1896] 2 Ch 763 (CA).................................................................. 490 Charitable Corp v Sutton (1742) 2 Atk 400, 26 ER 642, 9 Mod 349, 88 ER 500........................................................................... 165, 492 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 (HCA) ........................ 79 Chase Manhattan Bank v Israel-British Bank (London) Ltd [1981] Ch 105 (Ch D) ............................................................................ 606, 672 Cheung v Worldcup Investments Inc [2008] HKCFA 78 ................................ 71, 84 Chichester Diocesan Fund v Simpson [1944] AC 341 (HL) ................................ 199 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433 ..................................... 609 Cholmondeley v Clinton (1820) 2 J & W 1, 37 ER 527 .............. 648, 650–51, 652, 654–55, 656 Christ’s Hospital v Grainger (1849) 1 M & G 460, 41 ER 1343 ................ 655, 656 Christian Revival Crusade Inc v Milne & Ors [2007] SADC 125....................... 306 Chudleigh’s Case (1595) 1 Co Rep 113b, 76 ER 261 ......................................... 229 Church of England BS v Piskor [1954] Ch 553 (CA) .......................................... 431 Churcher v Street [1959] 1 All ER 23 (Ch D) ............................................. 560, 577 City Equitable Fire Insurance Co, Re [1925] Ch 407 (CA) ................................. 504 Clare v Joseph [1907] 2 KB 369 ......................................................................... 668 Clark v Browne (1854) 2 Sm & Giff 524, 65 ER 510 .......................................... 36 Clark v Cutland [2003] EWCA Civ 810, [2004] 1 WLR 783 ............................. 665 Clarkson v Davies [1923] AC 100 (HL) ............................................................. 649 Clarkson v Hanway (1723) 2 P Wms 203, 24 ER 700 ......................................... 60 Clayton’s Case see Devaynes v Noble Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 (CA) ............................................................................................... 139 Clore v Theatrical Properties [1936] 3 All ER 483 ............................................. 564 Cobb v Cobb [1955] 1 WLR 731 (CA) ...................................... 562, 563, 620, 641 Coco v Clark [1968] FSR 415 (Ch D) ................................................................ 259 Coke v Fountain (1686) 1 Vern 413, 23 ER 554 .................................................. 55 Coke v Fountaine (1676) 73 and 79 SS, 77 SS 362, 3 Swanst 585, 36 ER 984 ............................................................. 33–61, 82, 130 Colburn v Simms (1843) 2 Hare 543, 67 ER 224............................................... 608 Colchester v Law (1873) LR 16 Eq 253 ............................................................. 147 Cole v Gibbons, Martin v Cole (1734) 3 P W 290, 24 ER 1070......................... 333 Coleman Taymar Ltd v Oakes [2001] 2 BCLC 749 (Ch D) ................................ 517 Colin Gwyer & Associates Ltd v London Wharf (Limehouse) Ltd [2003] 2 BCLC 153 (Ch D).......................................... 526, 527 Collard v Hare (1831) 2 Russ & M 675, 39 ER 552.......................................... 659

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Collins v Plumb (1810) 16 Ves Jr 454, 33 ER 1057 ........................................... 212 Colonial Bishoprics Fund 1841, Re [1935] Ch 148 (Ch D) ................ 307, 311, 326 Colonial Trusts Corp, ex p Bradshaw, Re (1879) 15 Ch D 465 .......................... 229 Colt v Woollaston (1723) 2 P Wms 154, 24 ER 679 .......................................... 480 Comes Arglasse v Muschamp (1682) 1 Vern 75, 23 ER 322 .............................. 100 Commerzbank AG v IMB Morgan plc [2004] EWHC 2771 (Ch), [2005] 1 Lloyd’s Rep 298 ......................................... 385, 672 Commissioners of Inland Revenue v G Angus & Co (1889) 23 QBD 579.......................................................................................... 87 Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 (HL) ...................................................................... 192, 199, 534, 537–38, 541 Commissioner of Stamp Duties v Byrnes [1911] AC 386 (PC) ....................... 80–81 Committee for Privileges v The Aylesford Peerage (1886) LR 11 App Cas 1 ...... 353 Communities Economic Development Fund v Canadian Pickles Corp [1991] 3 SCR 388 ...................................................................... 412 Companhia de Moçambique v British South Africa Co [1892] 2 QB 358 (CA) ...................................................................................... 88 Connolly Bros (No 2), Re [1912] 2 Ch 25 (CA) ................................................ .431 Cook v Duckenfield (1743) 2 Atk 562, 26 ER 737............................................. 186 Cooke v Chilcott (1876) 3 Ch D 694 ................................................................. 221 Cooke v Fountain (1680) 1 Ventris 347, 86 ER 224 ............................................ 44 Cooke, ex parte (1876) 4 Ch D 123 ........................................................... 371, 373 Cooper v MacDonald (1877) 7 Ch D 288 .......................................................... 575 Cooper v PRG Powerhouse Ltd [2008] EWHC 498 (Ch), [2008] 2 All ER (Comm) 964 ......................................................................... 200 Coote v Jecks (1872) 13 LR Eq 597 ................................................................... 111 Corbett v Brown (1831) 8 Bing 33, 131 ER 312 ................................................ 478 Corbyn v French (1799) 4 Ves Jun 418, 31 ER 213 ................................... 182, 185 Cornfoot v Fowke (1840) 6 M & W 358 ........................................................... 479 Corporation of Gloucester v Osborn (1846–7) 1 HLC 272, 9 ER 760 ................. 36 Countess of Bristol v Hungerford (1709) 2 Vern 645, 23 ER 1021 ...................... 47 Courtney, ex parte Pollard, In re (1840) Mont & Ch 239 .............. 110–11, 113–14 Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 901 (Ch D) ........................................................................... 431 Cowcher v Cowcher [1972] 1 WLR 425 (Fam D) .............................................. 572 Cox v Jones [2004] EWHC 1486 (Ch), [2004] 2 FLR 1010 ............................... 667 Cox v Parker (1856) 23 Beav 168, 52 ER 1072 ................................................. 146 Cradock v Owen (1854) 2 Sm & Giff 241, 65 ER 382 Cranston, Re [1898] 1 IR 446 (CA Ireland) ....................................................... 535 Crédit Lyonnais Bank v Burch [1997] CLC 95 ................................................... 354 Cresswell v Potter [1978] 1 WLR 255 (Ch D) .................................................... 354 Crop v Norton (1740) 2 Atk 74, 26 ER 445, Barn CC 179, 27 ER 603, 9 Mod 233, 88 ER 418 ................................................................ 631 Cross, Re (1882) 20 Ch D 109 ........................................................................... 657 Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619, (2011) 4 ITELR 615 ....................................................................................... 663

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Crowley’s Case (1818) 2 Swanst 1, 36 ER 514..................................................... 35 Cullen v Lowndes (1771) unreported ................................................................. 245 Cullum, Re [1924] 1 Ch 540 (Ch D) .................................................................. 147 Cunnack v Edwards [1896] 2 Ch 679 ................................................................ 147 D&C Builders Ltd v Rees [1966] 2 QB 617 (CA)............................................... 212 D’Jan of London Ltd, Re, Copp v D’Jan [1994] 1 BCLC 561 (Ch D) ................ 504 Da Costa v De Paz (1754) Dick 249, 21 ER 268, Amb 228, 27 ER 150, 2 Swanst 532, 36 ER 715 .............................. 185–86, 197 Dale v Inland Revenue Commissioners [1954] AC 11 (HL) ............................... 515 Dale, ex parte (1879) 11 Ch D 722 ........................................ 367–69, 376, 378–80 Damberg v Damberg [2001] NSWCA 87, (2001) 52 NSWLR 492 ...................... 83 Dann v Spurrier (1802) 7 Ves Jun 231, 32 ER 94 ................................. 284–86, 297 Daraydan Holdings Ltd v Solland International Ltd [2004] EWHC 622 (Ch), [2005] Ch 119 ........................................................ 671 Dart Industries Inc v Décor Corp Pty Ltd [1993] HCA 54, (1993) 179 CLR 101 ...................................................................................... 608 Davall v New River Co (1849) 3 De G & Sm 394, 64 ER 531........................... 146 Davis v Duke of Marlborough (1819) 2 Swan 108, 36 ER 555 .......... 331, 332, 333 Davis Contractors Ltd v Fareham UDC [1956] AC 696 (HL) ............................ 624 Davy v Garrett (1878) 7 Ch D 473 .................................................................... 645 De Bussche v Alt (1878) 8 Ch D 286.................................................................. 514 de Mattos v Gibson (1849) 4 De G & J 276, 45 ER 108...................... 218–21, 226 De Themmines v De Bonneval (1828) 5 Russ 288, 38 ER 1035 ......................... 541 DEG-Deutsche Investitions- und Entwicklungsgesellschaft mbH v Koshy (No 2) [2002] 1 BCLC 478 (Ch D) .......................................... 664 Denley’s Trust Deed, Re [1969] 1 Ch 373 (Ch D) .............................................. 200 Derry v Peek (1889) 14 App Cas 337 (HL) ............................ 481–88, 493, 495–97 Deschamps v Miller [1908] 1 Ch 856 (Ch D) ............................................... 112–14 Devaynes v Noble, Clayton’s Case (1816) 1 Mer 572 ........... 358, 366–69, 372–73, 384–85, 391 Dewdney, ex parte (1809) 15 Ves Jun 479, 33 ER 836 ....................................... 657 Dexter Motors Ltd v Mitcalfe [1938] NZLR 804 .............................................. 388 DHN Food Distributors Ltd v Tower Hamlets [1976] 1 WLR 852 (CA)............ 578 Dick v Alston [1913] SC (HL) 57 ....................................................................... 484 Dickens v Hawksley [1934] 1 Ch 267 (CA) ....................................................... 251 Dillwyn v Llewelyn (1862) 4 De GF & J 517, 45 ER 1285 .................. 77, 605, 662 Diplock’s Estate, Re [1948] Ch 465 (CA) ............................ 357, 366, 381, 384–85, 387, 665 Dixon v Wilkinson (1859) 4 De G & J 508, 45 ER 198 ..................................... 484 Docker v Somes (1834) 2 My & Keen 655, 39 ER 1095 .................................... 489 Doctor Bonham’s Case (1610) 8 Co Rep 113, 77 ER 646 .................................... 30 Dodsworth v Dodsworth (1973) 228 EG 1115 (CA).......................................... 604 Doe d Leicester v Biggs (1809) 2 Taunt 109, 127 ER 1016 ................................ 151 Doe d Toone v Copestake 6 East 328, 102 ER 1313 .......................................... 198 Donaldson v Beckett (1774) 2 Bro PC 145, 1 ER 837 (HL) ............... 239, 247, 251 Donoghue v Stevenson [1932] 1 AC 562 (HL) ................................................... 496 Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595, [2006] QB 125 .......... 264–66

Table of Cases

xix

Douglas v Hello! Ltd (No 5) [2003] EMLR 30 .................................................. 265 Douglas, In re (1887) LR 35 Ch D 472 (CA) ....................................... 199, 534–35 Downes v Grazebrook (1817) 3 Mer 200, 36 ER 77 .......................................... 668 Drummond, Re (1836) 1 My & Cr 627, 40 ER 516 .......................................... 466 Drury v Smith (1716) 1 P Wms 404, 24 ER 446 .................................................. 60 Du Boulay v Raggett (1989) 58 P & CR 138 (Ch D) ......................................... 435 Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366 ................................................................................................ 663, 664 Duchess of Argyll v Duke of Argyll [1967] Ch 302 (Ch D) .................. 261–62, 264 Duckwari plc (No 2), Re [1999] Ch 253 (CA) ................................................... 663 Duder v Amsterdamsch Trustees Kantoor [1902] 2 Ch 132 (Ch D) ................... 111 Duke of Bedford v Trustees of the British Museum (1822) 2 My & K 552, 39 ER 1055 ................................................................... 211, 213 Duke of Marlborough, Re [1894] 2 Ch 133 (Ch D) ........................................... 449 Duke of Norfolk v Howard (1681) 2 Ch Cas 14, 22 ER 939, (1683) 1 Vern 163, 23 ER 388 ....................................................................... 130 Duke of Queensberry v Shebbeare (1758) 2 Eden 329, 28 ER 924............. 241, 247 Duke of Rutland v Duchess of Rutland (1723) 2 P Wms 210, 24 ER 703 ........................................................................................................ 60 Dumas, ex parte (1754) 1 Atk 232, 26 ER 149 .................................. 367, 370, 389 Dutton v Howell (1693) Show 24, 1 ER 17 ......................................................... 99 Dyer v Dyer (1788) 2 Cox Eq Cas 92, 30 ER 42 .................................... 76–78, 630 Dyke v Walford (1846) 5 Moo PC 434, 13 ER 557 ........................................... 147 Dyson Holdings v Fox [1976] QB 503 (CA) ...................................................... 577 Dyson Technology Ltd v Curtis [2010] EWHC 3289 (Ch) ......................... 603, 671 Eales v England (1702) Precedents in Chancery 200, 24 ER 96.......................... 190 Earl of Aldborough v Trye (1840) 7 Cl & F 436, 7 ER 1136 ............................. 334 Earl of Anglesey v Annesley (1741) 1 Bro HL 289, 1 ER 573 .............................. 95 Earl of Arglasse v Muschamp (1684) 1 Vern CC 237, 23 ER 438 ...................... 332 Earl of Aylesford v Morris (1873) LR 8 Ch App 484 ................................... 329–55 Earl of Aylesford, In re, Machell v Poulett, The Times, 20 April 1886, 4 ............................................................................................. 353 Earl of Aylesford’s Family Settlement, In re Poulett v Finch, The Times, 7 May 1885, 11 ........................................................................... 353 Earl Cadogan v Sportelli [2007] 1 EGLR 253 ...................................................... 10 Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125, 28 ER 82 .......................................................................... 330–32, 334, 341, 344 Earl of Kildare v Eustace (1686) 1 Vern 419, 23 ER 559 ............................... 100–1 Earl of Oxford’s Case (1615) Ch Rep 1, 21 ER 485 ........................... 1–32, 284–87 Earl of Pembroke’s Case (1379) Rot Parl 60–61 ................................................. 194 Earl of Plymouth v Hickman (1690) 2 Vern 167, 23 ER 712 ............................... 60 Earl of Portmore v Taylor (1831) 4 Sim 182, 58 ER 69 ..................................... 333 Earl of Sefton, Re [1898] 2 Ch 378 (CA) ..................................................... 453–72 Earl of Suffolk v Greenvill (1641) 3 Ch Rep 89, 21 ER 738 ............................... 130 Early v Garrett (1829) 9 B & C 928, 109 ER 345 .............................................. 478 East-India Co v Vincent (1740) 2 Atk 83, 26 ER 451......................................... 297 Edgeware Highway Board v Harrow Gas Co (1874) LR 10 QB 92.................... 437

xx

Table of Cases

Edwards v Burt (1852) 2 De G M & G 55, 42 ER 791 ...................................... 334 El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717 (Ch D)............... 387, 672 Elibank v Montolieu (1801) 5 Ves 737, 31 ER 832 ............................................ 576 Elkington & Co v Hurter [1892] 2 Ch 452 (Ch D) ............................................ 482 Ellenborough, Re [1903] 1 Ch 697 (Ch D) ................................................ 436, 441 Elliot v Cordell (1820) 5 Madd 149, 56 ER 852 ................................................ 575 Elliot v Elliot (1677) 2 Chan Cas 231, 22 ER 922.................................... 75–77, 82 Ellis v Selby (1836) 1 My & Cr 286, 40 ER 384 ................................................ 199 Ellison v Ellison (1802) 6 Ves Jun 656, 31 ER 1243........................................... 437 Equitable Life v Bowley [2003] EWHC 2263 (Comm), [2004] 1 BCLC 180 ........................................................................................ 504 Erlanger v New Sombrero Phosphate Co (1878) LR 3 App Cas 1218 .......................................................................... 608, 651–52 Errington v Errington & Woods [1952] 1 KB 290 (CA) ..................................... 564 Evans v Bicknell (1801) 6 Ves Jun 174, 31 ER 998 .................... 478, 479, 480, 482 Evans v Chesshire (1806) Ves Sen Supp 300, 28 ER 532 .................................... 331 Evans v Llewellyn (1787) 12 Bro CC 150, 29 ER 86.......................................... 331 Eves v Eves [1975] 1 WLR 1338 (CA) ....................................................... 572, 579 Ewing v Orr Ewing (1883) 9 App Cas 34............................................................. 88 Exchange Banking Co, Re (1882) 21 Ch D 519 ................................................. 658 Exchange Telegraph v Central News [1897] 2 Ch 48 (Ch D) ............................. 257 Exchange Telegraph v Gregory [1896] 1 QB 147 (CA)....................................... 257 Eyre v Countess of Shaftesbury (1722) 2 P Wm 103 .......................................... 579 Eyre v Hughes (1876) LR 2 Ch D 148 ............................................................... 354 Eyre-Williams, Re [1923] 2 Ch 533 (Ch D) ........................................................ 659 F & C Alternative Investments (Holdings) Ltd v Barthelemy [2011] EWHC 1731 (Ch) ............................................................................... 497 Fane v Fane (1681) 1 Vern 30, 23 ER 284 ......................................................... 187 Farepak Food and Gifts Ltd, Re [2006] EWHC 3272 (Ch), [2007] 2 BCLC 1, [2009] EWHC 2580 (Ch), [2010] 1 BCLC 444 ................ 672 Farrow Finance Co Ltd (in liq) v Farrow Properties Ltd (in liq) [1999] 1 VR 584 ................................................................................. 666 Fattal v Walbrook Trustees (Jersey) Ltd [2010] EWHC 2767 (Ch), [2012] Bus LR D7 ........................................................................ 644 Fawcett v Whitehouse (1829) 1 Russ & M 132, 39 ER 51................................. 668 Feilden v Slater (1869) LR 7 Eq 523 .................................................................. 221 Ferris v Weaven [1952] 2 All ER 233 ................................................................. 560 FHR European Ventures LLP v Mankarious [2011] EWHC 2999 (Ch)........................................................................................... 670 Finch v Throckmorton (1597) BL MS Harl 6686 f 222v ............................ 2, 31, 32 Fisher v Brooker [2009] UKHL 41, [2009] Bus LR 1334 ................................... 651 Floyd v Nangle (1747) 3 Atk 567, 26 ER 1127 .................................................. 484 Foley v Hill (1844) 1 Ph 399, 41 ER 683 ........................................................... 654 Formby v Barker [1903] 2 Ch 539 (CA)............................................. 220, 223, 226 Forrester v Waller (1741) unreported ......................................................... 245, 247 Foskett v McKeown [1997] 3 All ER 392 (CA), [2001] 1 AC 102 (HL) ......................................................... 383, 387, 388–90, 580, 665

Table of Cases

xxi

Foster v Charles (1830) 6 Bing 396, 130 ER 1333 ............................................. 478 Foster v Vassall (1747) 3 Atk 587, 26 ER 1138 ......................................... 103, 109 Fountain v Coke (1674) 1 Mod 107, 86 ER 768 .................................................. 43 Fountain v Gnales (1687) Comberbach 59, 90 ER 343 ........................................ 44 Fountain v Guavers (1683) 2 Shower KB 333, 89 ER 971 ................................... 44 Fountain v Guavers (1683) Skinner 146, 90 ER 68 .............................................. 44 Foveaux, Re [1895] 2 Ch 501 (Ch D) .......................................................... 534–39 Franks v Bollans (1868) LR 3 Ch App 717 ........................................................ 668 Fraser Edmiston Pty Ltd v AGT (Qld) Pty Ltd [1988] 2 Qd 1 (QSC) ................. 609 Fribance v Fribance [1957] 1 WLR 384 (CA)..................................................... 620 Friend v Brooker [2009] HCA 21, (2009) 239 CLR 129 .................................... 497 Frith v Cartland (1865) 2 Hem & M 417, 71 ER 525................................ 366, 371 Fry v Lane (1889) LR 40 Ch D 312 ................................................................... 354 Furnis v Leicester (1619) Cro Jac 474, 79 ER 404 ............................................. 478 Furs Ltd v Tomkies (1936) 54 CLR 583 ............................................................. 668 Futter v Futter [2010] EWHC 449 (Ch), [2010] STC 982 .......................... 146, 666 Galambos v Perez [2009] SCC 48, [2009] 3 SCR 247 ........................................ 497 Gallard v Hawkins (1884) 27 Ch D 298 ............................................................ 148 Gallard, Re [1897] 2 QB 8 ................................................................................. 659 Gambrell v Nivens 275 SW 3d 529 (2008)......................................................... 203 Gardner v Hart (1676) 73 SS 329 ........................................................................ 45 Garmonsway v Raglan Developments Ltd [2009] NZHC 488 ........................... 664 Garrett v Wilkinson (1848) 2 De G & Sm 244, 64 ER 110 .................................. 78 Gartside v Outram (1856) 3 Ju (NS) 39 ..................................................... 254, 261 Gascoigne v Thwing (1685) 1 Vern 366, 23 ER 526 ............................................ 60 Gawton v Lord Dacres (1590) 1 Leo 220, 74 ER 201 ........................................ 588 Gee v Pritchard, (1818) 2 Swanst 402, 36 ER 670 ..................................... 245, 252 Gibbons v Wright (1954) 91 CLR 423 (HCA) ..................................................... 79 Gibbs v Rumsey (1813) 2 Ves & Bea 294, 35 ER 331 ................................ 187, 198 Gilchester Properties Ltd v Comm [1948] 1 All ER 493 ..................................... 482 Gillies v Keogh [1989] 2 NZLR 327 .................................................................. 636 Gilmour v Coats [1949] AC 426 (HL) ............................................... 199, 541, 548 Gissing v Gissing [1971] AC 886 (HL) ......................................... 572, 574, 611–42 Giumelli v Giumelli [1999] HCA 10, (1999) 196 CLR 101................ 604, 662, 664 Glamorganshire Iron & Coal Co v Irvine (1866) 4 F & F 947, 176 ER 861 ...... 478 Glanvill’s Case, see Glanville v Courtney Glanville v Courtney 2 Bulst 301, 80 ER 1139, Cro Jac 343, 79 ER 294, 1 Rolle 111, 81 ER 365, 1 Rolle 219, 81 ER 444, Moo 838, 72 ER 839, 118 SS 440 ............................................. 3, 28 Godbold v Freestone (1694) 3 Lev 406, 83 ER 753 ........................................... 134 Goldie v Getley (No 3) [2011] WASC 132 ......................................................... 664 Goode v Martin [2001] EWCA Civ 1899, [2002] 1 WLR 1828 ......................... 644 Googe and Smith’s Case (1615) 1 Rolle 278, 81 ER 487, 3 Bulst 115, 81 ER 98 ............................................................................ 2, 20, 31 Gordon v Gordon (1821) 3 Swanst 400, 36 ER 910 .......................................... 146 Gore v Gore (1722) 10 Mod 501, 88 ER 827 .................................................... 130 Gorringe v Taylor (1596) C 33/91 f 424, 117 SS 210 no 235, 224 no 332 ........... 28

xxii Table of Cases Gosman, Re (1880) 15 Ch D 67......................................................... 145, 146, 147 Gowland v De Faria (1810) 17 Ves Jun 20, 34 ER 8 .......................................... 331 Grand Junction Canal Co v Dimes (1850) 2 H & T 92, 47 ER 1610 .................................................................................................... 668 Grant v Edwards [1986] Ch 638 (CA) ....................................... 575, 636, 639, 642 Gray v Johnston (1868) LR 3 HL 1.................................................................... 665 Green v Bridgeman (1757) Wilmot 58, 97 ER 22 ................................................. 49 Green’s WT, Re [1985] 3 All ER 455 (Ch D) ...................................................... 145 Greenhalgh v Arderne Cinemas Ltd [1951] Ch 286 (CA) ................................... 410 Greenwood v Bennett [1973] 1 QB 195 (CA)..................................................... 598 Gregory v Gregory (1815) G Coop 201, 35 ER 530........................................... 652 Grey v Grey (1677) 1 Chan Cas 296, 22 ER 809, Rep Temp Finch 338, 23 ER 185, 2 Freem 6 .............................................. 63–85 Griggs (R) Group Ltd v Evans [2004] EWHC 1088 (Ch), [2005] Ch 153 .................................................................................. 100, 112–13 Grimstone, ex parte (1771) 2 Ves 74, 30 ER 527 ............................................... 466 Grove-Grady, Re [1929] 1 Ch 557 (CA)......................................... 535–36, 540–41 Guavers v Fountain (1687) 2 Freeman 99, 22 ER 1083 ....................................... 47 Guinness plc v Saunders (1987) 3 BCC 271 (Ch D), [1990] 2 AC 663 (HL) ............................................................................ 523, 668 Gwembe Valley Development Co Ltd v Koshy (No 3) [2002] 1 BCLC 478 (Ch D), [2003] EWCA Civ 1048, [2004] 1 BCLC 131 .................. 669 Gwynne v Heaton (1778) 1 Bro CC 1, 28 ER 949 ..................................... 331, 344 Gwynne, Re (1912) 5 DLR 713 (CA Ont).......................................................... 535 H v H (1947) 63 TLR 645 ......................................................................... 560, 563 H v S [2002] EWCA Civ 79, [2003] QB 965...................................................... 667 H’s Settlement, Re [1909] 2 Ch 260 (Ch D) ....................................................... 579 Hall v Ewin (1888) LR 37 Ch D 74 ................................................................... 203 Hallett’s Estate, Re; Knatchbull v Hallett; Cotterill v Hallett (1879–80) 13 Ch D 696 (CA) ................................................................... 357–92 Halton International Inc v Guernroy Ltd [2006] EWCA Civ 801, [2006] WTLR 1241 ........................................................................................ 670 Hancock v Smith (1889) 41 Ch D 456 (CA) ...................................................... 384 Harcourt v White (1860) 28 Beav 303, 54 ER 382 .................................... 650, 651 Harding v Glyn (1739) 1 Atk 469, 26 ER 299 ................................................... 190 Hardwicke v Johnson [1978] 1 WLR 683 (CA) ................................................. 636 Harford v Lloyd (1855) 20 Beav 310, 52 ER 622 .............................................. 371 Harris v Horwell (1708) Gilb Rep 11, 25 ER 8 .................................................... 60 Harris v Truman (1881) 7 QBD 340, affd (1882) 9 QBD 264 (CA) ........... 377, 378 Harrison v Gurney (1821) 2 Jac & W 563, 37 ER 743 ...................................... 108 Hartley v Cummings (1847) 5 CB 247, 136 ER 871 .......................................... 438 Harwood v Tooke (1812) 2 Sim 192, 57 ER 76 ................................................. 333 Hastings, Re (1887) 35 Ch D 94 ................................................................ 653, 655 Hastings Bass, Re [1975] Ch 25 (CA) ................................................................ 225 Haycraft v Creasy (1801) 2 East 92, 102 ER 303............................................... 479 Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403 (CA) ...................................................................................... 221–23

Table of Cases

xxiii

Heard v Pilley (1869) 4 Ch App 548 (CA) ......................................... 434, 435, 436 Heath v Pugh (1881) 6 QBD 345 (CA) 428, affd (1882) LR 7 App Cas 235 (HL) .......................................................................................... 428 Heaven v Pender (1882) LR 11 QBD 503 .......................................................... 496 Hedley Byrne and Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL) .......................................................................................... 495, 496 Henchman v A-G (1826) 2 Sim & St 498, 57 ER 436 ........................................ 117 Henchman v A-G (1834) 3 My & K 485, 40 ER 185......................................... 148 Henderson v Merrett Syndicates Ltd (No 1) [1995] 2 AC 145 (HL)........... 497, 669 Heningbrook v Steel (1676) 73 SS 301 ................................................................. 45 Hercy v Dinwoody (1793) 2 Ves Jun 87, 30 ER 536 .................................. 650, 651 Heseltine v Heseltine [1971] 1 WLR 342 (CA)................................................... 579 Heskell v Continental Express Ltd [1950] 1 All ER 1033................................... 496 Hicks v Powell (1869) LR 4 Ch App 741 ........................................................... 113 Hicks v Sallitt (1854) 3 De G M & G 782, 43 ER 307....................................... 654 Hilton v Barker Booth and Eastwood (a firm) [2005] UKHL 8, [2005] 1 WLR 567 ......................................................................................... 497 Hine v Hine [1962] 1 WLR 1124 (CA) .............................................. 563, 616, 620 Hitchcock v Giddings (1817) 4 Price 135 ........................................................... 481 Hoburn Aero Components Ltd’s Air-Raid Distress Fund, Re [1946] Ch 86 (Ch D) ................................................................................. 385 Hodgson v Marks [1971] Ch 892 (CA) .............................................................. 449 Hodle v Healey (1819) 6 Madd 181, 56 ER 1062 ...................................... 652, 653 Holland v Holland (1869) LR 4 Ch 449 ............................................................ 655 Holmes, Re (1827) 4 Russ 182, 38 ER 774 ........................................................ 579 Holroyd v Marshall (1862) 10 HL Cas 191, 11 ER 999 ............................ 436, 437 Holthausen, ex parte (1874) LR 9 Ch App 722.................................................. 111 Hood, Re [1931] 1 Ch 240 (CA) ........................................................................ 542 Hope v Hope (1854) De GM & G 328, 43 ER 534 ........................................... 579 Hopkinson, Re [1948] 1 All ER 346 .................................................................. 545 Hopper v Conyers (1866) 2 LR Eq 549...................................................... 389, 390 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41............................................................................................ 593, 669 Hovenden v Lord Annesley (1806) 2 Sch & Lef 607 ...................... 648–50, 654–57 How v Stile (1675) 2 Levinz 126, 83 ER 481 ....................................................... 43 How v Stile (1675) 3 Keble 430, 84 ER 805 ........................................................ 43 How v Stiles (1674) 3 Keble 283, 84 ER 722 ....................................................... 43 How v Style (1674) 1 Freeman 384, 89 ER 286 ................................................... 43 Howard E Perry & Co Ltd v British Railways Board [1980] 1 WLR 1375 (Ch D) ....................................................................................... 605 HR v JAPT [1997] OPLR 123............................................................................ 668 Hughes v La Baia Ltd [2011] UKPC 9, [2011] 2 P & CR DG7 .......................... 651 Hughes v Lloyd [2007] EWHC 3133 (Ch), [2008] WTLR 473 .................. 667, 668 Huguenin v Baseley (1807) 14 Ves Jun 275, 33 ER 526 ..................................... 177 Hummeltenberg, Re [1923] 1 Ch 237 (Ch D) .................................................... 540 Hunt v Luck [1901] 1 Ch 45 (Ch D) .................................................................. 567 Hunt v Severs [1994] 2 AC 350 (HL) ................................................................. 667

xxiv

Table of Cases

Hunter, In re, Hunter v Attorney–General [1899] AC 309 (HL)......................... 199 Hurst v Picture Theatres Ltd [1915] 1 KB 1 (CA) .............................................. 564 Hussey v Palmer [1972] 1 WLR 1286 (CA) ............................................... 578, 579 Iliffe v Trafford [2001] All ER (D) 306 (Dec) ..................................................... 491 Indata Equipment Supplies Ltd v ACL Ltd [1998] FSR 248 (CA) ...................... 489 Independent Trustee Services Ltd v GP Noble Trustees Ltd [2009] EWHC 161 (Ch), [2012] EWCA Civ 195 ..................................... 665–66 Inland Revenue Commissioners v Baddeley [1955] AC 572 (HL)............... 192, 199 Inland Revenue Commissioners v Temperance Council of Christian Churches of England and Wales (1926) 136 LT 27 ..................... 542 International Corona Resources Ltd v LAC Minerals Ltd (1987) 25 DLR (4th) 504, affd [1989] 2 SCR 574 .......................................... 669 Isaac v Gompertz (1786) unreported .................................................................. 186 Jackson v Cator (1800) 5 Ves Jun 688, 31 ER 806............................................. 297 Jackson v Hobhouse (1817) 2 Mer 483, 35 ER 1025 ......................................... 576 Jackson v Petrie (1804) 10 Ves Jun 164, 32 ER 807 ........................................... 107 Jacobus Estates Ltd v Marler (1913) 114 LT 640n (HL) .................................... 500 James Roscoe (Bolton) Ltd v Winder [1915] 1 Ch 62 (Ch D) ..................... 383, 607 James v Allen (1817) 3 Mer 17, 36 ER 7...................................................... 198–99 James v Smith [1891] 1 Ch 384 (Ch D) .............................................................. 435 James v Williams [2000] Ch 1 (CA) ................................................................... 667 James, ex parte (1803) 8 Ves 337, 32 ER 385 ............................................ 514, 522 Jansen v Jansen [1965] 3 All ER 363 (CA) ......................................................... 563 Jasmine Trustees Ltd v Wells & Hind (a firm) [2007] EWHC 38 (Ch), [2008] Ch 194.............................................................. 663, 666 JD Wetherspoon plc v Van de Berg & Co Ltd [2009] EWHC 639 (Ch)..................................................................................... 664, 670 Jefferys v Boosey (1854) 4 HLC 814, 10 ER 681 (HL)................................. 248–53 Jenkin’s and Randall’s Contract, Re [1903] 2 Ch 362 (Ch D)............................. 599 Jenks’ Case (1676) 6 St Tr 1189 ........................................................................... 35 Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P & CR 8 .............................. 640 Jermy v Best (1819) 1 Sim 373, 57 ER 617 ........................................................ 650 Jess B Woodcock & Sons v Hobbs [1955] 1 WLR 152 (CA) ...................... 559, 560 Jesse v Bennett (1856) 6 De G M & G 609, 43 ER 1370 ................................... 665 JJ Harrison (Properties) Ltd v Harrison [2001] EWCA Civ 1467, [2002] 1 BCLC 162........................................................................ 670 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19, (2010) 241 CLR 1................................................ 497, 605, 607 John v Dodwell & Co Ltd [1918] AC 563 (PC) ................................................. 665 Johnson v Gallagher (1861) 3 D F & J 494, 45 ER 969 ..................................... 653 Johnstone v Beattie (1843) 10 Cl & F 42, 8 ER 657 .......................................... 579 Jones v Kernott [2009] EWHC 1713 (Ch), [2010] WLR 2401, [2010] EWCA Civ 578, [2010] WLR 2401, [2011] UKSC 53, [2011] 3 WLR 1121 .................................................................. 612–14, 617–19, 621–22, 626–28, 632–34, 636–38, 641–42 Jones v Nabbs (1718) Gilb Rep 146, 25 ER 102 .................................................. 60

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xxv

Jones v Smith [1954] 1 WLR 1089 (Ch D) ......................................................... 565 Jones v Tuberville (1792) 2 Ves Jun 11, 30 ER 498 .................................... 651, 654 Jones, Re (1929) 45 TLR 259 ............................................................................ 541 Jyske Bank (Gibraltar) Ltd v Spjeldnaes [1999] 2 BCLC 101 (Ch D) ................. 666 Kauter v Hilton (1953) 90 CLR 86 (HCA)........................................................... 79 Kaye v Robertson [1991] FSR 62 (CA) .............................................................. 264 Keech v Sandford (1726) Sel Cas Ch 61, 25 ER 223 .................. 187, 292, 604, 670 Keene, Re [1922] 2 Ch 475 (CA) ....................................................................... 595 Kelly & Co, ex parte (1879) 11 Ch D 306 ......................................................... 490 Kelly v Cooper [1993] AC 205 (PC)................................................................... 593 Kemp v Kemp (1801) 5 Ves Jun 849, 31 ER 891 ............................................... 188 Kendar v Milward (1702) 2 Vern 440, 23 ER 882 ............................................... 60 Kennedy v Earl of Cassillis (1818) 2 Swan 313, 36 ER 635 ............................... 108 Keppell v Bailey (1834) 2 My & K 517, 39 ER 1042 .................... 210–10, 212–13, 219–20, 227, 232, 299 Kernott v Jones see Jones v Kernott Kerr v Baranow 2011 SCC 10, [2011] 1 SCR 269 ..................................... 611, 630 Kerr, Re [1927] NZLR 177 ................................................................................ 388 Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd [2004] EWHC 2547 (Ch), [2005] 2 P & CR 8 affd [2005] EWCA Civ 1355, [2006] 1 P & CR DG20 ................................................................. 663 Kinder v Miller (1701) Prec Ch 171, 24 ER 83 .................................................... 60 King v David Allen & Sons [1916] 2 AC 54 (HL) ...................................... 226, 564 King v Hamlet (1835) 3 Cl & F 218, 6 ER 1419........................................ 333, 346 Kirk v Webb (1698) 2 Freem 229, 22 ER 1177, Prec Ch 84, 24 ER 41 ................ 60 Kirkby Ravensworth Hospital, ex parte (1808) 15 Ves Jun 305, 33 ER 770 ...................................................................................................... 189 Kirkham v Peel (1880) 28 WR 941, affd (1880) 44 LT 195 (CA) ................. 378–79 Kitechnology BV & Ors v Unicor GmbH Plastmaschinen & Ors [1995] FSR 765 (CA)...................................................................................... 262 Knight v Knight (1840) 3 Beav 148, 49 ER 58 ........................................... 159, 427 Knight, Re (1937) 2 DLR 285 (Ont SC) ............................................................. 548 Knox v Gye (1872) LR 5 HL 656............................................... 653, 654, 655, 657 LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14 (SCC) .......................................................................... 605, 671 Minera Aquiline Argentina SA v IMA Exploration Inc (2007) 10 WWR 648 ................................................................................................. 671 Lady Astley v Fountaine (1673) Rep t Finch 4, 23 ER 3................................. 48, 59 Lady Bellasis v Compton (1693) 2 Vern 294, 23 ER 790 ..................................... 60 Lady Gorge’s Case (1634) unreported, cited in Crisp v Pratt (1634/5) Cro Car 549, 79 ER 1072, Prolegomena, ch 13, s 10 ............. 73, 74, 75 Lake v Gibson (1729) 1 Eq Ca Abr 290 ............................................................. 631 Lamb v Evans [1893] 1 Ch 218 (CA) ......................................................... 244, 254 Lamplugh v Lamplugh (1709) 1 P Wms 111, 24 ER 316 ..................................... 77 Lancaster v Handle Artists Management Ltd unreported, 15 September 2007, [2008] EWCA Civ 1111 ................................................. 670

xxvi

Table of Cases

Lands Allotment Co, Re [1894] 1 Ch 616 (CA) ................................................. 658 Lane v Dighton (1762) Amb 409, 22 ER 274..................................................... 389 Lashmar, Re, Moody v Penfold [1891] 1 Ch 258 (CA)......................... 115, 150–52 Last v Rosenfeld [1972] 2 NSWLR 923 (NSW SC) ............................................ 432 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265 (HCA)........................................................................... 566 Latimer v Commissioners of Inland Revenue [2004] UKPC 13, [2004] 1 WLR 1466 ....................................................................................... 645 Lavelle v Lavelle [2004] EWCA Civ 223, [2004] 2 FCR 418 ............................... 73 Law Society v Habitable Concepts Ltd [2010] EWHC 1449 (Ch) ...................... 645 Law Society v Isaac & Isaac International Holdings Ltd [2010] EWHC 1670 (Ch), [2011] WTLR 425 ........................................................... 645 Le Cren Clarke, Re [1996] 1 WLR 288 (Ch D) .................................................. 541 Leahy v A–G for New South Wales [1959] AC 457 (PC).................................... 199 Leakins v Clissel (1663) 1 Sid 146, 82 ER 1022 ................................................. 478 Lee v Lee [1952] 2 QB 489n .............................................................................. 563 Lehman Brothers International (Europe), Re [2009] EWHC 3228 (Ch), [2010] 2 BCLC 301 ...................................................................... 357 Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 (HL) ............ 231 Leslie Engineers Ltd [1976] 1 WLR 292 (Ch D) ................................................. 357 Lewis v Madocks (1810) 17 Ves 48, 34 ER 19 ................................................... 389 Lincoln v Wright (1859) 4 De G & J 16, 45 ER 6 ................................................ 79 Lind, Re [1915] 2 Ch 345 (CA).......................................................................... 437 Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 ........................................... 651 Lindsley v Woodfull [2004] EWCA Civ 165, [2004] 2 BCLC 131...................... 669 Lister v Pickford (1865) 34 Beav 576, 55 ER 757 .............................................. 655 Lister and Co v Stubbs (1890) 45 Ch D 1 .................................................. 380, 671 Lloyd’s Bank Ltd v Bundy [1975] QB 326 (CA) ................................................. 354 Lloyd’s Bank Ltd v Oliver’s Trustee [1953] 1 WLR 1460 (Ch D) ....................... 562 Lloyds Bank Plc v Rosset [1991] 1 AC 107 (HL) ............................... 575, 619, 636 Lloyds TSB Bank Plc v Markandan & Uddin (a firm) [2012] EWCA Civ 65................................................................................................. 645 Lockey v Lockey (1719) Prec Ch 518, 24 ER 232 ...................................... 653, 657 Lomax v Ripley (1855) 3 Sm & G 48, 65 ER 558.............................................. 191 London & South Western Rwy Co v Gomm (1881) 20 Ch D 562 ....... 222–24, 231 London Borough of Hounslow v Twickenham Garden Development Ltd [1971] Ch 233 (Ch D) ........................................................ 564 Long v Bishop of Cape Town (1863) 1 Moo PC NS 411, 15 ER 756 ........................................................................................ 311–16, 321 Lonrho plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) .......................................... 662 Loosemore v Tiverton and North Devon Railway Co (1883) LT 162 ................. 376 Lord Ashburton v Pape [1913] 2 Ch 469 (CA)................................................... 476 Lord Chedworth v Edwards (1802) 8 Ves June 46, 32 ER 268........................... 370 Lord Compton’s Case (1587) 3 Leo 197, 74 ER 629.......................................... 229 Lord Cranstown v Johnston (1796) 3 Ves Jun 170, 30 ER 952 ...... 110–11, 113–14 Lord Dacre of the South, Re (1535) ................................................................... 194 Lord Falkland v Bertie (1696) 2 Vern 333, 23 ER 814 ......................................... 60

Table of Cases

xxvii

Lord Mohun v Lady Mohun (1671) Prolegomena 242......................................... 58 Lord North & Lord Dacres v Millett (1593) 117 SS 197 No [10] ........................ 45 Lord Pawlet’s Case (1685) 2 Vent 366, 86 ER 489 ............................................. 135 Lord Portarlington v Soulby (1834) 3 My & K 104, 40 ER 40 .......................... 108 Lord Provost, Magistrates and Town Council of Edinburgh v The Lord Advocate (1879) 4 App Cas 823 ..................................................... 390 Lord Winsor’s Case (1611) Ley 31, 80 ER 608 .................................................... 13 Love v Baker (1665) 1 Ch Ca 67, 22 ER 698 ..................................................... 108 Love v L’Estrange (1727) 5 Bro PC 59, 2 ER 532............................................... 135 Low v Bouverie [1891] 3 Ch 82 (CA)................................................................. 482 Luker v Dennis (1877) 7 Ch D 227 .............................................................. 219–20 Lumley v Gye (1853) 2 El & Bl 216, 118 ER 749 .............................................. 219 Lumley v Wagner (1852) 1 De GM & G 604, 42 ER 687 .................................. 219 Luxor (Eastbourne) Ltd v Cooper [1939] 1 All ER 623 (KBD), [1939] 4 All ER 411 (CA), [1941] AC 108 (HL) ........................... 500, 501, 502, 508, 515 Lyde v Barnard (1836) 1 M & W 101, 150 ER 363 ........................................... 479 Lyell v Kennedy (1889) 14 App Cas 437 ...................................... 378–79, 588, 661 Lysaght v Edwards (1876) LR 2 Ch 499 (Ch) .................................................... 434 Macduff, In re [1896] 2 Ch 451 (CA) ................................................................ 199 Macklin v Richardson (1770) Amb 694, 27 ER 491 .......................................... 247 Macmillan v Dent [1907] 1 Ch 107 (CA) ........................................................... 251 Magdalen College Case, Warren v Smith (1615) 1 Rolle 151, 81 ER 394, 11 Co Rep 66, 77 ER 1235, Cro Jac 364, 79 ER 312 ...................................................................... 2, 11, 12, 13, 16, 20, 27 Maguire v Makaronis (1997) 188 CLR 449 ....................................................... 669 Mainstream Properties Ltd v Young [2007] UKHL 21, [2008] AC 1.................. 266 Manby v Scott (1659) 1 Sid 109, 82 ER 1000 .................................................... 560 Manisty’s Settlement [1974] Ch 17 (Ch D) ......................................................... 200 Mann v Stephens (1846) 15 Sim 377, 60 ER 665 ................................. 213–14, 224 Mansell v Mansell (1732) 2 P Wms 678............................................................. 665 Mansell v Valley Printing Co [1908] 1 Ch 567 (Ch D) ....................................... 251 Marquess of Northampton v Pollock (1890) 45 Ch D 190 (CA) ........................ 429 Marriott, Re (1808) 2 Molloy 516 ..................................................................... 467 Mars UK Ltd v Teknowledge Ltd [1999] EWHC 226 (Pat), [2000] FSR 138 .............................................................................................. 595 Martin v Strachan (1742) 2 Stra 1179, 93 ER 1111, Rolle, Abr, vol 2, fo 780 ........................................................................................... 134 Mason, Re [1928] 1 Ch 385............................................................................... 659 Masters of Bedford Charity, In re (1819) 2 Swanst 470, 36 ER 696 ................... 186 Matthias v Yetts (1882) 46 LT (NS) 497 ............................................................ 479 Mayer v Townsend (1841) 3 Beav 443, 49 ER 174 .............................................. 36 Mayor Aldermen and Burgesses of Gloucester v Wood (1843) 3 Hare 131, 67 ER 326 .................................................................................... 36 MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675 (CA)............................................................................... 229 McCormick v Grogan (1869) LR 4 HL 82 ......................................................... 663

xxviii Table of Cases McGovern v A-G [1982] Ch 321 (Ch D).................................................... 540, 544 McLaughlin v Duffill [2008] EWCA Civ 1627, [2010] Ch 1 .............................. 434 McPhail v Doulton [1971] AC 424 (HL)............................................ 200, 228, 580 McPherson v Watt (1877) 3 App Cas 254 .......................................................... 668 Mercer and Moore, Re (1880) 14 Ch D 287 ...................................................... 118 Meredith v Heneage (1824) 1 Simons 542, 57 ER 681....................................... 191 Merrick v Harvey (1649) Nels 48, 21 ER 786...................................................... 45 Merriman v Ward (1860) 1 J & H 371, 70 ER 790 ........................................... 373 Merriman v Williams (1882) LR 7 App Cas 484 ........................................ 307, 311 Merryweather v Moore [1892] 2 Ch 518 (Ch D) ............................................... 254 Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc [1990] 1 QB 391 (CA) .................................................................................... 666 Metropolitan Bank v Heiron (1880) 5 Ex D 319................................ 380, 480, 658 Metropolitan Petar v Mitreski [2003] NSWSC 262............................................ 306 Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 (Ch D) .................... 200 Meux v Smith (1843) 11 Sim 410, 59 ER 931.................................................... 431 Middleton v Baldock [1950] 1 All ER 708 ................................................. 565, 577 Middleton v Pollock (1876) 4 Ch D 49 .............................................................. 378 Middleton v Spicer (1783) 1 Bro CC 201, 28 ER 1083 ...................................... 146 Midland Bank v Cooke [1995] 4 All ER 562 (CA) ..................... 574, 580, 630, 637 Midland Bank Trust Co Ltd v Green [1981] AC 513 (HL)................................. 446 Millar v Taylor (1769) 4 Burr 2303, 98 ER 201 ......................................... 240, 247 Miller v Bain [2002] 1 BCLC 266 (Ch D) .......................................................... 670 Mills v Drewitt (1855) 20 Beav 632, 52 ER 748 ................................................ 657 Moens v Heyworth (1842) 10 M & W 147, 152 ER 418................................... 479 Moggridge v Thackwell (1802) 7 Ves Jun 36, 32 ER 15...................... 163, 181–83, 186, 194, 198 Montagu’s Settlement, Re [1987] Ch 264 (Ch D) ............................................... 665 Morgan v Stephens (1861) 3 Giff 226, 66 ER 392 ............................................. 665 Morice v Bishop of Durham (1804) 9 Ves Jun 399, 32 ER 65 (MR), (1805) 10 Ves Jun522, 32 ER 947 (LC) ....................... 157–201 Morison v Moat (1851) 9 Hare 241, 68 ER 492 ....................... 254, 255, 257, 259, 260, 261, 262 Morland v Cook (1868) LR 6 Eq 252 ................................................................ 221 Morris v Whiting (1913) 15 DLR 254 (Manitoba KB) ....................................... 432 Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 (BCCA) ....................... 354 Mortlock v Buller (1804) 10 Ves Jun 292, 32 ER 857 ........................................ 435 Mouat, Re [1899] 1 Ch 831 (Ch D) ................................................................... 380 Mountain v Styak [1922] NZLR 131 ................................................................. 448 Movitex Ltd v Bulfield [1988] BCLC 104 (Ch D)............................................... 526 Moxhay v Inderwick (1847) 1 De G & Sm 708, 63 ER 1261 ........................ 208–9 Muggeridge v Stanton (1859) 1 De G, F & J 107, 45 ER 300 .............................. 36 Mumford v Gething (1859) 7 CB (NS) 305, 141 ER 834 ................................... 438 Murad v Al-Saraj [2005] EWCA Civ 959, [2005] WTLR 1573 ................. 523, 597 Murray v Heath (1831) 1 B & Ald 804, 109 ER 985 ......................................... 254 Mutton v Peat [1899] 2 Ch 556 (Ch D) ............................................................. 384 Nab v Nab 10 Mod 404, 88 ER 783 .................................................................... 60

Table of Cases

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Nabb Brothers Ltd v Lloyds Bank International (Guernsey) Ltd [2005] EWHC 405 (Ch) ......................................................... 664 Nabob of Arcot v East India Co (1791) 3 Bro CC 292, 29 ER 544, (1792) 4 Bro CC 180, 29 ER 841 .................................................. 96 National Anti–Vivisection Society v Inland Revenue Commissioners [1946] KB 185 (CA), [1948] AC 31 (HL) ........................ 529–55 National Discount Co of Ireland v Burr, The Times, 23 January 1885, 3 ........... 353 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (HL) ............................................................... 557–80, 616, 635 National Provincial Bank Ltd v Hastings Car Mart Ltd [1964] Ch 9 (Ch D), [1964] Ch 665 (CA) ....................................... 559 National Westminster Bank v Morgan [1985] AC 686 (HL) .............................. 354 Navy Health Ltd v Federal Commissioner of Taxation (2007) 163 FCR 1 ......... 547 Nelan v Downes (1919) 23 CLR 546 (HCA) ..................................................... 548 Nelson v Nelson [1995] HCA 25, (1995) 184 CLR 538 ................................ 76, 84 Ness v O’Neil [1916] 1 KB 706 (CA) ................................................................. 428 Neste Oy v Lloyd’s Bank Plc [1983] 2 Lloyds Rep 658 ...................................... 672 Nevil v Saunders (1686) 1 Vern 415, 23 ER 555, 1 Eq Cas Abr 383 .................. 150 Nevill v Snelling (1880) LR 15 Ch D 679........................................................... 354 Neville Estates v Madden [1962] Ch 832 (Ch D) ............................................... 548 New Zealand Netherlands Society ‘Oranje’ Inc Ltd v Kuys [1973] 1 WLR 1126 (PC) ............................................................... 523, 593, 669 New, Re [1901] 2 Ch 534 (Ch D)....................................................................... 600 Newbery v James (1817) 2 Mer 446, 35 ER 1011.............................................. 255 Newgrosh v Newgrosh (1950) 210 LT Jo 108 .................................................... 562 Newton v Preston (1699) Prec Ch 103, 24 ER 50 ................................................ 60 Nichrotherm Electrical Co Ltd v Percy [1956] RPC 272, [1957] RPC 207 (CA) ..................................................................................... 259 Nightingale v Goulbourn (1848) 2 Ph 594, 41 ER 1072 .................................... 199 Niru Battery Manufacturing Co v Milestone Trading Ltd (No 1) [2002] EWHC 1425 (Comm), [2002] 2 All ER (Comm) 705 .............. 672 Nisbet & Potts’ Contract, Re [1905] 1 Ch 391 (Ch D), [1906] 1 Ch 386 (CA) .................................................... 224, 227, 229, 231, 656 Nocton v Lord Ashburton [1914] AC 932 (HL)................................... 473–98, 500 Nolan v Nolan [2004] VSCA 109 ...................................................................... 667 Norman v Theodore Goddard [1991] BCLC 1028 (Ch D) ................................. 504 Norris v Chambres (1861) 29 Beav 246, 54 ER 621, (1861) 3 De GF & J 583, 45 ER 1004 ...................................................... 112–14 North v Crompton (1671) 1 Ch Cas 176, 22 ER 759 .................................. 52, 187 North-West Transportation Co Ltd v Beatty (1887) 12 App Cas 589 (PC).............................................................................. 393–422 Norton v Florence Land and Public Works Co (1877) 7 Ch D 332 .................... 114 Nott v Hill (1682) 1 Vern 167, 23 ER 391 ......................................................... 331 O’Connor v Hart [1985] 1 NZLR 159 (JCPC)................................................... 354 O’Hanlon v Logue [1906] 1 IR 247 ........................................................... 548, 549 O’Rorke v Bolingbroke (1877) LR 2 App Cas 814............................................. 354 Oatway, Re [1903] 2 Ch 356 (Ch D)............................................................ 382–83

xxx Table of Cases Obee v Bishop (1859) 1 De G F & J 137, 45 ER 311 ......................................... 655 OBG v Allan [2008] 1 AC 1 (HL) ...................................................................... 262 Okeover v Lady Pettus, Reports, case 347............................................................ 82 Old Colony Trust Co v Welch (1938) 25 F Supp 45 (DC Mass) ......................... 535 Old Gate Estates Ltd v Alexander [1949] 2 All ER 822 (CA) ............................. 565 Oldham v Litchford (1705) 2 Freem 284, 22 ER 1214......................................... 60 Ommanney v Butcher (1823) Turn & R 260, 37 ER 1098 ................................. 191 Onslow v Wallis (1849) 1 Mac & G 506, 41 ER 1361 ................................. 149–52 Organ v Sandwell [1921] VLR 622 (SC Vic) 630 ............................................... 432 Ormrod v Huth (1845) 14 M & W 401 ............................................................. 478 Orr, Re (1917) 40 OLR 567 ............................................................................... 548 Osbond v Morgan (1851) 9 Hare 43.................................................................. 576 Oxenden v Lord Compton (1793) 2 Ves Jun 69, 30 ER 527 ...................... 461, 466 Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211 ............................................................................. 575, 614–15, 637–39 P & O Nedlloyd BV v Arab Metals Co (The UB Tiger) (No 2) [2006] EWCA Civ 1717, [2007] 1 WLR 2288 .................... 651, 656, 657 Page v Hewetts Solicitors (a firm) [2011] EWHC 2449 (Ch), [2012] 1 P & CR DG3 ................................................................................... 670 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 ................................................ 437 Palin v Gathercole (1844) 1 Coll 565, 63 ER 545 .............................................. 245 Pallant v Morgan [1953] Ch 43 (Ch D)........................................ 439–40, 663, 667 Panama, New Zealand and Australian Royal Mail Co (1870) 5 Ch App 318 ..................................................................................... 229 Panweld Trading Pte Ltd v Yong Kheng Leong [2012] SGHC 57 ........................................................................................ 648, 664, 670 Papamichael v National Westminster Bank plc (No 2) [2003] EWHC 164 (Comm), [2003] 1 Lloyd’s Rep 341 ................................. 672 Paragon Finance plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400 (CA) .................................................................... 377, 450, 643–72 Pares, Re (1879) 12 Ch D 333 ........................................................................... 459 Parker v Brooke (1804) 9 Ves 583, 32 ER 729 ................................................... 575 Parsons v Spooner (1846) 5 Hare 102, 67 ER 845 ............................................. 591 Partington v Reynolds (1858) 4 Drew 253, 62 ER 98 ........................................ 490 Pascoe v Turner [1979] 1 WLR 431 (CA) .......................................................... 605 Pasley v Freeman (1789) 3 TR 51, 100 ER 450............................................ 478–81 Patman v Harland (1881) LR 17 Ch D 353 ....................................................... 221 Paul (Printing Machinery) Ltd v Southern Instruments [1964] RPC 118 ......................................................................................................... 259 Pavesich v New England Life Insurance Co 50 SE 68 (1905) (Georgia SC) ............................................................................................. 263–64 Peachy v Duke of Somerset (1721) 1 Stra 447, 93 ER 626 ................................. 140 Peacock v Evans (1809) 16 Ves Jun 512, 33 ER 1079 ................................ 331, 333 Pearne v Lisle (1749) Amb 75, 27 ER 47 ........................................................... 104 Pechar (deceased), Re [1969] NZLR 574 ........................................................... 671 Peconic Industrial Development Ltd v Chio Ho Cheong [2009] HKFCA 16, [2009] WTLR 999 ...................................................................... 648

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Pecore v Pecore [2007] SCC 17, [2007] 1 SCR 795 (SCC) ............................. 73, 84 Peek v Derry (1887) 37 Ch D 541 ...................................................................... 479 Peek v Gurney (1873) LR 6 HL 377 (HL) .................................................. 486, 491 Peffer v Rigg [1977] 1 WLR 285 (Ch D) ............................................................ 666 Penn v Lord Baltimore (No 1) (1745) Ridgeway Cases temp Hardwicke 332, 27 ER 847 ...................................................... 88, 91, 93–95, 98 Penn v Lord Baltimore (1755) Dick 273, 21 ER 273 ............................................ 98 Penn v Lord Baltimore (No 2) (1750) 1 Ves Sen 444, 27 ER 1132 ............... 87–114 Pennell v Deffell (1853) 4 De G M & G 372, 43 ER 551 ............... 366–68, 371–73 Perceval v Phipps (1813) 2 V&B 19, 35 ER 225 ................................................ 247 Permanent Building Society v Wheeler (1994) 14 ACSR 109 ............................. 497 Permanent Trustee Co v Scales (1930) 30 SR (NSW) 391 Eq ............................. 432 Peso Silver Mines Ltd v Cropper (1965) 56 DLR (2d) 117 (BCCA), [1966] SCR 673, (1966) 58 DLR (2d) 1 (SCC)........................................................ 500, 505, 523, 526–27 Peter Pan Manufacturing Corp v Corsets Silhouette Ltd [1964] 1 WLR 96 (Ch D) ........................................................................................... 259 Peterson v Parrys and Hickman (1597) C 33/93 f 125, 117 SS 263 no 248 ........................................................................................... 29 Pettitt v Pettitt [1968] 1 WLR 443 (CA), [1970] AC 777 (HL) ................. 562, 563, 572, 574, 577, 611–42 Phillips v Phillips (1862) 4 De G F & J 208, 45 ER 1164 ................................... 565 Phipps v Boardman [1964] 1 WLR 993, [1964] 2 All ER 187 (Ch D), [1965] Ch 992, [1965] 2 WLR 839 (CA), affd sub nom Boardman v Phipps......................................................................... 581–610 Pickering v Stamford (1795) 2 Ves Jun 581, 30 ER 787 ..................................... 651 Pierson v Garnet (1786–87) 2 Bro CC 38, 29 ER 20 .......................... 190, 193, 197 Pike v Hoare (1763) 2 Eden 182, 28 ER 867, Amb 428, 27 ER 286 .................. 109 Pilmer v Duke Group Ltd (in liq) [2001] HCA 31, 207 CLR 165 .............. 497, 593 Pinkett v Wright (1843) 2 Hare 120, 67 ER 50, affd (1846) 12 Cl & Fin 764 (HL) .................................................................................... 372 Pitt v Holt [2011] EWCA Civ 197, [2011] 3 WLR 19........................ 225, 497, 665 Pitt v Pelham (1670) 1 Ch Rep 149, 21 ER 574, 1 Ch Cas 176, 22 ER 750, 2 Freem 134, 22 ER 1110 ........................................................ 36, 58 Plunkett v Barclays Bank Ltd [1936] 2 KB 107 .................................................. 377 Pole v Pole (1747/8) Ves Sen Supp 54, 28 ER 454 ................................................ 77 Pollard v Photographic Co (1888) 40 Ch D 345 ........................................ 254, 255 Pope v Curl 2 Atk 342, 26 ER 608..................................................... 245, 247, 252 Port Line Ltd v Ben Line Steamers Ltd [1958] 2 QB 146.................................... 220 Porter’s Case (1592) 1 Co Rep 22b, 76 ER 50 ................................................... 163 Portman Building Society v Hamlyn Taylor Neck (a firm) [1998] 4 All ER 202 (CA) .......................................................................................... 646 Powell v Merrett (1853) 1 Sm & Giff 381, 65 ER 167 ....................................... 147 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 (HL) ..................... 542 Preston v Dania (1872) LR 8 Ex 19 ................................................... 342, 344, 355 Price v Blakemore (1843) 6 Beav 507, 49 ER 922 .............................................. 389

xxxii Table of Cases Primeau v Granfield 184 F 480 (1911) ....................................................... 383, 388 Prince Albert v Strange (1849) 2 De G & Sm 652, 64 ER 293, (1850) 13 Jurist (OS) 45, 1 Mac & G 25, 45 ER 1171, 1 H & Tw 1, 47 ER 1302, (1850) 13 Jurist (OS) 109 (LC) ....................... 235–67 Public Trustee v A-G (1997) 42 NSWLR 600..................................................... 555 Pullan v Koe [1913] 1 Ch 9 (Ch D) .................................................................... 135 Pulvers (a firm) v Chan [2007] EWHC 2406 (Ch), [2008] PNLR 9.................... 645 Pybus v Smith (1790) 1 Ves 189, 30 ER 294 ...................................................... 490 Pype v Spinola (after 1558) c3/143/81.................................................................... 7 Quennell v Maltby [1979] 1 WLR 318 .............................................................. 578 R v Coggan (1805) 6 East 431, 102 ER 1352 ............................................ 117, 148 R v Eton College (1857) 8 El & Bl 610, 120 ER 228 ................................. 310–311 R v Fletcher (1862) Le & Ca 180, 169 ER 1353 .................................................. 36 R v Inhabitants of North Nibley (1792) 5 Term Reports 21, 101 ER 12 ............ 160 Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 ......................................... 306 Ramsden v Dyson (1866) LR 1 HL 129 (HL) .............................. 27, 269–304, 640 Ramshire v Bolton (1869) 8 LR Eq 294 ..................................................... 481, 491 Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 ............................................... 671 Read’s Case (1605) 5 Co Rep 33b, 77 ER 103 ........................................... 490, 588 Redgrave v Hurd (1881) 20 Ch D 1 ........................................................... 386, 481 Reese River Silver Mining Co v Smith (1869) LR 4 HL 64................................. 481 Reeves v Pope [1914] 2 KB 284 (CA) ................................................................. 565 Regal (Hastings) v Gulliver [1967] 2 AC 134, [1942] 1 All ER 378 (HL) .......................................................................... 499–528, 668 Regentcrest plc v Cohen [2001] 2 BCLC 81 (Ch D) ........................................... 514 Rhodes v Bate (1865) LR 1 Ch 252.................................................................... 484 Rhone v Stephens [1994] 2 AC 310 (HL) ........................................................... 222 Richardson v Hamilton (1733) unreported .................................................. 95, 106 Richardson, Re [1920] 1 Ch 423 (CA) ............................................................... 650 Riddle v Emerson (1682) 1 Vern 108, 23 ER 348 ................................................ 60 Riddle v Riddle (1952) 85 CLR 202................................................................... 600 Rimmer v Rimmer [1953] 1 QB 63 (CA) ................................................... 562, 574 Rither v Tempest (1581) Ch C Ch 145, 21 ER 186, 117 SS 370 No [10] .......................................................................................... 45 Robb v Green [1895] 2 QB 1 ....................................................................... 254–55 Roberdeau v Rous (1738) 1 Atk 543, 26 ER 342 ........................................... 102–3 Robertson v Wilkie (1753) Amb 177, 27 ER 119............................................... 104 Robins v Incentive Dynamics Pty Ltd (2003) 45 ACSR 244 ............................... 666 Robinson v National Bank of Scotland Ltd [1916] SC (HL) 154.................. 493–94 Robinson, Re [1911] 1 Ch 502 (Ch D)............................................................... 659 Rochefoucauld v Boustead (1896) 65 LJ Ch 794 (Ch D), [1897] 1 Ch 196 (CA) ........................................................ 79, 423–52, 657, 663 Rock Permanent Benefit Building Society v Kettlewell [1956] EGD 315............. 561 Rogers v Hosegood [1900] 2 Ch 388 (CA)................................................... 223–24 Rolfe v Gregory (1865) 4 De G J & S 576, 46 ER 1042..................................... 665 Roper v Radcliffe (1712) 9 Mod 181, 88 ER 387 ................................................ 47 Roper v Williams (1822) Turn & R 18, 37 ER 999 ............................................ 211

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xxxiii

Rosenfeldt v Olson [1985] 2 WWR 502............................................................. 671 Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 ................................................................... 354, 569 Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC) ............................................ 564 Royal North Shore Hospital of Sydney v A–G (1928) 60 CLR 396............................................................................................ 554, 555 Rushworth’s Case (1676) 2 Freem Chy 13, 22 ER 1026 .................................... 520 Russell-Cooke Trust Co v Prentis [2002] EWHC 2227 (Ch), [2003] 2 All ER 478 ....................................................................................... 385 Ryall v Rolle (1749) 1 Atk 165, 26 ER 107 ............................................... 367, 370 Ryall v Rowles (1750) 1 Ves Snr 348, 27 ER 1074............................................. 130 Salmon, Re (1889) 42 Ch D 351 ........................................................................ 492 Salomon v A Salomon and Co Ltd [1897] AC 22 (HL) ...................................... 400 Salt v Cooper (1880) 16 Ch D 544............................................................. 363, 386 Saltman v Campbell (1948) 65 RPC 203 (HC, CA) ............................. 258–59, 262 Samuel v Newbold [1906] AC 461 (HL) ............................................................ 355 Saunders v Vautier (1841) 4 Beav 115, 49 ER 282 (MR), Cr & Ph 240, 41 ER 482 (LC)........................................................ 135, 188, 586 Saunders and Benning v Smith and Maxwell (1838) 3 My & Cr 710, 40 ER 1100 ......................................................................... 235 Savage v Hubble [1953] EGD 150 ..................................................................... 560 Sayers, ex parte (1800) 5 Ves Jun 169, 31 ER 528 ............................................. 367 Scales v Baker (1859) 28 Beav 91, 54 ER 300 .................................................... 390 Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 (PC)....................................... 200 Schobelt v Barber (1966) 60 DLR (2d) 519 ........................................................ 671 Schroeder v Mendl (1877) 37 LT 452................................................................. 491 Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793 (Ch D) ................................................................................. 118 Scott v Scott (1963) 109 CLR 649 ..................................................... 388, 389, 668 Scott v Surman (1742) Willes 400, 125 ER 1235 ............................................... 367 Scowcroft, Re [1898] 2 Ch 638 (Ch D) .............................................................. 541 Scroope v Scroope (1663) 1 Ch Cas 27, 22 ER 677, 2 Freem Ch 171, 22 ER 1138, Prolegomena, ch 13, s 2 ........................ 73, 75, 83 Security Trust Co v Royal Bank of Canada [1976] AC 503 (PC)........................ 431 Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073 (Ch D) ......................................................................... 664 Sempra Metals Ltd v IRC [2007] UKHL 34, [2008] AC 561 ............................. 391 Shales v Shales (1701) 2 Freem 252, 22 ER 1191 ........................................... 60, 77 Shallcross v Oldham (1862) 2 J & H 609, 70 ER 1202...................................... 433 Shalson v Russo [2003] EWHC 1637 (Ch), [2005] Ch 281................ 383, 387, 672 Shapland v Smith (1780) 1 Bro CC 75, 28 ER 994 ............................................ 128 Sharp v Jackson [1899] AC 419 (HL) ................................................................ 359 Sharpe, Re [1892] 1 Ch 154 (CA) ...................................................................... 658 Sharpe (A Bankrupt), Re [1980] 1 WLR 219 (Ch D).......................................... 567 Shaw v Foster (1872) LR 5 HL 321 ................................................................... 434 Shell UK Ltd v Total UK Ltd [2011] QB 86 (CA) .............................................. .231 Shelly v Nash (1818) 3 Madd 232, 56 ER 494 ........................................... 331, 346

xxxiv Table of Cases Shephard v Cartwright [1953] Ch 728 (CA), revd on different point [1955] AC 431 (HL) ..................................... 73, 649–50, 660–62 Short v Short [1960] 3 All ER 6 ......................................................................... 577 Shrewsbury v Blount (1841) 2 Man & G 475, 133 ER 836 ............................... 479 Silverstone v Silverstone [1953] 1 All ER 556 (PDAD) ............................... 560, 577 Sinclair v Brougham [1914] AC 398 (HL) ................................. 357, 376, 380, 381, 382, 387, 485, 564 Sinclair Investment Holdings SA v Versailles Trade Finance Ltd (in admin recship) [2007] EWHC 915 (Ch), (2007) 10 ITELR 58 ....................................................................................... 664 Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2010] EWHC 1614 (Ch), [2011] WTLR 839, affd [2011] EWCA Civ 347, [2011] Bus LR 1126 ............ 380, 603, 663, 670–72 Singh v Anand [2007] EWHC 3346 (Ch) ........................................................... 451 Sir George Sands’ Case (1676) Hard 405, 145 ER 520, (1679) Hard 488, 145 ER 561, (1667) 1 Sid 403, 82 ER 1182, 2 Freem 129, (1669) 3 Ch Rep 33, 21 ER 720, (1670) Nelson 130, 21 ER 808 ............................ 137, 139, 140, 143 Sir John Fryar v Vernon (1724) 9 Mod 124, 88 ER 355, Select Cases Temp King 5, 25 ER 191 ............................................................ 101 Sir John Fryer v Bernard (1724) 2 P Wms 261, 24 ER 722 ................................ 101 Skett v Whitmore (1705) 2 Freem 280, 22 ER 1211 ............................................ 60 Sleight v Lawson (1857) 3 K & J 292, 69 ER 1119............................................ 490 Slim v Croucher (1860) 1 De G F & J 518, 45 ER 462 ................ 480–83, 488, 491 Smethurst v Hastings (1884) 30 Ch D 490 ......................................................... 492 Smith v Baker (1737) 1 Atk 385, 26 ER 246 .................................................. 77–78 Smith v Chadwick (1882) 20 Ch D 27, overturned on different grounds (1884) LR 9 App Cas 187 (HL) .......................................... 479 Smith v Clay (1767) 3 Bro CC 646n, 29 ER 743.................................. 650, 652–53 Smith v Kay (1859) 7 HLC 750, 11 ER 299n..................................................... 346 Smith v Matthews (1861) 3 De G F & J 139, 45 ER 831 ................................... 432 Smith v Pococke (1854) 2 Drew 197, 61 ER 694 ............................................... 656 Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254 (HL) ............................................... 644 Smith’s Will Trusts, Re [1962] 1 WLR 763 (CA) ................................................ 552 Smout v Ilbery (1842) 10 M & W 1, 152 ER 357 .............................................. 479 Soar v Ashwell [1893] 2 QB 390 (CA) ....................................................... 659, 661 Solowij & Ors v The Parish of St Michael & Ors [2002] SASC 408 .................. 306 South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 (HL) ................................................................................ 644 Southwood v A-G [2000] WTLR 1199 (CA)...................................................... 547 Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072 (PC) ....................... 357 Springette v Defoe [1992] 2 FLR 388 (CA) ........................................................ 634 Spycatcher see A-G v Guardian (No 2) Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 .......... 572, 575, 580, 612–15, 618–21, 626–27, 636–37, 639, 641–42

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Stackhouse v Barnston (1805) 10 Ves Jun 453, 32 ER 921 ................ 650, 652, 654 Stamford’s Case (1574) 2 Leo 223, 74 ER 496................................................... 588 State of South Australia v State of Victoria [1914] AC 283 (PC) .......................... 96 Statek Corp v Alford [2008] EWHC 32 (Ch), [2008] WTLR 108 .............. 647, 670 Stenning, Re [1895] 2 Ch 433 (Ch D) .......................................................... 384–85 Stewart v Stewart [1948] 1 KB 507 (CA) ........................................................... 560 Stiles v Cowper (1748) 3 Atk 692, 26 ER 1198 ................................................. 297 Stokes v Anderson [1991] 1 FLR 391 (CA) ................................................ 637, 639 Stone v Stone (1869) LR 5 Ch 74 ....................................................................... 656 Strachan, Re (1876) 4 Ch D 123 ........................................................................ 665 Strathmore v Bowes (1788) 2 Cox Eq Cas 28, 30 ER 14.................................... 575 Street v Denham [1954] 1 WLR 624 .......................................... 559, 560, 561, 578 Strode v Strode (1672) 2 Ch Cas 196, 22 ER 908, Reports, case 211, Prolegomena, ch 13, s 13 .................................................... 74 Sturgis v Champneys (1839) 5 My & Cr 97, 41 ER 308 .................................... 576 Suhner & Co AG v Transradio Ltd [1967] RPC 329.......................................... 259 Sutton, Re, Stone v A–G (1885) LR 28 Ch D 464 .............................................. 187 Swift v Hawkins (1768) 1 Dallas 17................................................................... 105 Swiss Bank v Lloyd’s Bank [1979] Ch 548 (Ch D) ............................................. 220 Syndicat Northcrest v Amselem [2004] SCC 47, [2004] 2 SCR 551 ................... 548 Taddy & Co v Sterious & Co [1904] 1 Ch 354 (Ch D) .............................. 226, 229 Tailby v Official Receiver (1888) 13 App Cas 523 (HL) ..................................... 437 Talbot v Jevers [1917] 2 Ch 363 (CA) ................................................................ 148 Tanfield v Davenport (1638) Tothill 114 ............................................................ 576 Tapp v Lee (1803) 3 Bos & P 367, 127 ER 200 ................................................. 478 Target Holdings Ltd v Priestley (1999) 79 P & CR 305 (Ch D).......................... 434 Target Holdings Ltd v Redferns (a firm) [1996] AC 421 (HL) ............................ 645 Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 (Ch D).................................................................................... 574 Taylor v Davies [1920] AC 636 (PC) .......................................................... 649, 668 Taylor v Haygarth (1844) 14 Sim 8, 60 ER 259 ................................. 146, 147, 148 Taylor v McHale [1948] EGD 299 ..................................................................... 565 Taylor v Plumer (1815) 3 M & S 562, 105 ER 721 ............................ 367, 371, 386 Taylor, Re (1900) 81 LT 812 .............................................................................. 657 Tchenguiz v Imerman [2011] EWCA Civ, [2011] Fam 116 .................. 244, 265–66 Terrapin Ltd v Builders’ Supply Co (Hayes) Ltd [1967] RPC 375, [1960] RPC 12, (CA)...................................................................... 259 Thompson v Earthy [1951] 2 All ER 235 ................................................... 560, 565 Thompson v Stanhope (1774) Amb 737, 27 ER 476 .................................. 245, 247 Thompson’s Trusts (1856) 22 Beav 506, 52 ER 1203 ........................................ 148 Thomson v Shakespeare (1859) Johnson 612, 70 ER 564, affd (1860) 1 De GF & J 399, 45 ER 413....................................................... 199 Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776..................................... 605 Thornton v Howe (1862) 31 Beav 14, 54 ER 1042 ...................................... 548–49 Tilley’s Will Trusts, Re [1967] Ch 1179 (Ch D) .......................................... 382, 388 Tilt, Re (1896) 40 Sol Jo 224 (Ch D).................................................................. 436 Tipping v Clarke (1843) 2 Hare 383, 67 ER 157 ....................... 241, 254, 255, 261 Tito v Waddell (No 2) [1977] Ch 106 (Ch D) .................................................... 668

xxxvi Table of Cases Tollemache, Re [1903] 1 Ch 457 (Ch D) ............................................................ 600 Toller v Carteret (1705) 2 Vern 494, 23 ER 916 ................................................ 102 Tonson v Collins (1761) 1 Bl W 321, 96 ER 180 ............................................... 247 Topp v Roberts (1636) Toth 27, 21 ER 113 ......................................................... 45 Townley v Bedwell (1801) 6 Ves Jun 194, 31 ER 1008 ...................................... 182 Transvaal Lands Co v New Belgium (Transvaal) Land and Development Co [1914] 2 Ch 488 (CA) ......................................................... 668 Trustees of the Property of Jones and Sons v Jones [1997] Ch 159 (CA) ............ 387 Tulk v Metropolitan Board of Works (1867) LR 3 QB 94 .................................. 216 Tulk v Metropolitan Board of Works (1868) LR 3 QB 682 (Exchq)................... 216 Tulk v Moxhay (1848) 2 Ph 774, 41 ER 1143, (1848) 1 Ha & Tw 105, 47 ER 1435, (1848) 18 LJ Ch 83 .................................. 203–33 Tullett v Armstrong (1839) 1 Beav 1, 48 ER 838 ............................................... 576 Turner v Jacob [2006] EWHC 1317 (Ch), [2008] WTLR 307............................ 383 Turner v Robinson (1860) 10 Ir Ch R 121 (MR), 510 (CA in Ch) ............. 248, 251 Twedell v Twedell (1822) TR 1, 37 ER 992 ....................................................... 333 Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164 ........... 200, 645, 672 Twyne’s Case 3 Co Rep 80b, 76 ER 809 .............................................................. 58 UB Tiger, The see P & O Nedlloyd BV v Arab Metals Co UCB Home Loans Corp Ltd v Carr [2000] Lloyd’s Rep PN 754 ................ 645, 670 UCB Home Loans Corp Ltd v Grace unreported, 15 December 2010 (Ch D).............................................................................. 645 Ulrich v Ulrich [1968] 1 WLR 180 (CA) ............................................................ 635 Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2006] FSR 17 ................................................................................................ 603 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 (HL) ............................. 661 United Dominions Ltd v Brian Pty Ltd (1985) 157 CLR 1 ................................. 589 United Pan-Europe Communications NV v Deutsche Bank AG [2000] 2 BCLC 461 (CA)..................................................................... 669, 671 University of London v Yarrow (1857) 1 De G & J 72, 44 ER 649 .................... 534 Vaughan v Vaughan [1953] 1 All ER 209 (CA) .................................................. 561 Venables v Hornby [2002] EWCA Civ 1277, [2002] STC 148 ........................... 665 Verge v Somerville [1924] AC 496 (HL) ............................................................. 543 Vezey v Jamson (1822) 1 Simons & Stuart 69, 57 ER 27 ................................... 198 Wainwright v Home Office [2004] 2 AC 406 (HL) ............................................ 264 Walker v Denne (1793) 2 Ves Jun 170, 30 ER 577 ............................................. 148 Walsh v Deloitte & Touche Inc [2001] UKPC 58, [2002] 4 LRC 454 ................ 669 Walsh v Lonsdale (1882) 21 Ch D 9 .................................................................. 386 Ward, Re (1862) 31 Beav 1, 54 ER 1037 ........................................................... 481 Warman International Ltd v Dwyer (1995) 182 CLR 544 .......................... 520, 609 Warman v Seaman (1674) 1 Freeman 306, 22 ER 1227 ....................................... 59 Warren v Smith see Magdalen College Case Wassell v Leggatt [1896] 1 Ch 554 ............................................................. 575, 659 Watchel v Watchel [1973] Fam 72 (CA) ............................................................. 577 Watson, Re [1973] 1 WLR 1472 (Ch D) ............................................................ 541 Webb v Mansell, The Times, 1 February 1877, 11 ............................................. 355 Webb v Rose (1732) unreported................................................................. 245, 247

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Webb v Stenton (1881) 11 QBD 518.................................................................. 490 Wedgwood, Re [1915] 1 Ch 113 (CA) ......................................................... 535–36 Weir v Bell (1878) 3 Ex D 238 ........................................................................... 478 Wellesley v Duke of Beaufort (1827) 2 Russ 1, 38 ER 236 ......................... 460, 579 Wellesley v Wellesley (1828) 2 Bli NS 124, 4 ER 1078 ....................................... 460 Wells, Re [1933] Ch 29 (CA) ..................................................................... 128, 147 Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 (HL) .................................................. 78, 144–45, 375, 380, 387, 391, 605, 665, 672 Westfield v Davidson (1887) 3 TLR 362 ............................................................ 478 Westminster Bank Ltd v Lee [1955] 2 All ER 883 (Ch D) ............ 560, 565, 567–68 Wethered v Wethered (1828) 2 Sim 183, 57 ER 757 .......................................... 333 Whatman v Gibson (1838) 9 Sim 196, 59 ER 333 ...................... 213–14, 218, 223, 224, 227–28 Whicker v Hume (1851) 14 Beav 509, 51 ER 381 ............................................. 199 Whitecomb v Jacob (1710) 1 Salk 160, 91 ER 149 .................................... 367, 370 Widdowson v Harrington (1820) 1 J & W 533, 37 ER 471 ............................... 650 Wilder v Pigott (1882) 22 Ch D 263 .................................................................. 466 Williams v Bishop of Salisbury; Wilson v Fendall (1863) 2 Moo PC NS 375, 15 ER 943 ....................................................................... 325 Williams v Commissioners of Inland Revenue [1965] NZLR 395 ...................... 436 Williams v Lord Lonsdale (1798) 3 Ves Jun 752, 30 ER 1255.............. 117, 146–48 Williams v Williams (1817) 3 Mer 157, 36 ER 61.............................................. 255 Williams and Glyn’s Bank v Boland [1981] AC 487 (HL) .................................. 569 Willoughby, Re (1885) 30 Ch D 324 .................................................................. 579 Wilson v Hart (1817) 7 Taunt 295, 129 ER 118 ................................................ 434 Wilson v Hart (1866) 1 Ch App 463 ............................................................ 220–21 Wilson v Moore (1834) 1 My & K 126, 39 ER 629........................................... 665 Windham v Windham (1668/9) 2 Freem Ch 127, 22 ER 1103, 3 Chan Rep 22, 21 ER 717, Prolegomena, ch 13, s 5 ................................. 52, 73 Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 (HL) ............................................................. 564 Wintle v Nye [1959] 1 All ER 552 (HL)............................................................... 47 Wiseman v Beake (1690) 2 Vern 121, 23 ER 688 ............................................... 331 Wood, Re [1896] 2 Ch 596 (Ch D) .................................................................... 153 Wratten v Hunter [1978] 2 NSWLR 367 (NSW SC) .......................................... 432 Wray v Steele (1814) 2 V & B 388, 35 ER 366 .................................................. 631 Wylde v A-G (NSW) [1948] HCA 49, (1948) 78 CLR 224 ................................ 306 Yovatt v Winyard (1820) 1 Jac & W 394, 37 ER 425 ....................... 254, 255, 256, 261, 262 Zong, The, Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629........................... 170

Table of Legislation National Legislation (alphabetical) Act for the Encouragement of Learning, etc 1710 .............................. 239, 247, 251 Administration of Estates Act 1925 s 45(1)(d) ........................................................................................................ 118 s 46(1)(vi) ....................................................................................................... 118 Administration of Justice (Miscellaneous Provisions) Act 1938 s 12 ................................................................................................................ 118 Agricultural Holdings Act 1975 ......................................................................... 294 Animals (Scientific Procedures) Act 1986 ........................................................... 534 Bankruptcy Act 1861 ......................................................................................... 346 Bankruptcy Act 1869 s 23 ................................................................................................................ 118 Business Corporations Act 1985 (Can)......................................................... 415–17 Pt XX ............................................................................................................. 417 s 2(1) .............................................................................................................. 416 s 6(4) .............................................................................................................. 417 s 106(3) .......................................................................................................... 417 s 109(1) .......................................................................................................... 417 s 120 ........................................................................................................ 415–16 (7) ......................................................................................................... 415–17 (c) ............................................................................................................ 416 (8) ............................................................................................................... 416 s 173 .............................................................................................................. 417 s 183 .............................................................................................................. 417 s 188(5) .......................................................................................................... 417 s 189 .............................................................................................................. 417 s 238 .............................................................................................................. 421 ss 239–40 ....................................................................................................... 417 s 241 ...................................................................................................... 417, 421 s 242 ...................................................................................................... 417, 422 Business Corporations Act [2011] (Quebec) ss 122–33 ....................................................................................................... 416 s 132 ........................................................................................................ 416–17 s 133 .............................................................................................................. 417 Business Corporations Act 1978 (Sask) s 115(8.1) ....................................................................................................... 416 Business Corporations Act 2002 (BC) s 149 .............................................................................................................. 416 Chantries Act 1545 ............................................................................................ 164 Chantries Act 1547 ............................................................................................ 164

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Charitable Uses Act 1601 .................................................. 160, 162, 189, 195, 197 preamble ........................................................................................................ 543 Charitable Uses Act 1736 ....................................................... 165–66, 182–84, 190 Charitable Uses Act 1891 ................................................................................... 165 Charities Act 2006 ss 1–3 ............................................................................................................. 160 s 2 .................................................................................................................. 554 s 3(2) .............................................................................................................. 541 s 4 .................................................................................................................. 160 Charities Act 2011 Pt 6................................................................................................................. 549 s 3(2)(i) ........................................................................................................... 551 (l) ................................................................................................................ 551 s 4(2) .............................................................................................................. 541 Church Discipline Act 1840 s 16 ................................................................................................................ 324 Civil Partnership Act 2004 ................................................................................. 574 s 65 ................................................................................................................ 615 Civil Procedure Acts Repeal Act 1879 ................................................................ 118 Civil Procedure Rules 1998 (SI 1998/3132) r 5(2) .............................................................................................................. 644 (5) ............................................................................................................... 644 r 17.4 ............................................................................................................. 644 Pt 64 PD para 64A.1A ........................................................................... 524, 601 Common Law Procedure Act 1852 s 24 ................................................................................................................ 118 Common Law Procedure Act 1854 s 78 ................................................................................................................ 605 Common Law Procedure Act 1860 .................................................................... 344 Companies Act 1929 s 152 .............................................................................................................. 526 s 372 ...................................................................................................... 513, 517 Companies Act 1948 .......................................................................................... 587 s 205 .............................................................................................................. 526 Companies Act 1985 ss 309A–309C ................................................................................................ 526 Companies Act 2006 Pt 10 ch 2 ....................................................................................................... 524 s 170(4) .......................................................................................................... 524 s 174 .............................................................................................................. 504 s 175 ..............................................................................................524, 525, 526 (4)–(6) ......................................................................................................... 524 s 176 ........................................................................................................ 524–25 (4) .......................................................................................520, 521, 525, 528 s 180(4) .......................................................................................................... 524 (a)............................................................................................................ 525 (b) ........................................................................................................... 525

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s 232 .............................................................................................................. 526 (4) ...............................................................................................524, 525, 526 s 239(3) .......................................................................................................... 416 Companies (Table A) Regulations 1929 ............................................................. 527 reg 72 ............................................................................................................. 526 Companies (Table A) Regulations 1948 reg 84 ............................................................................................................. 526 Companies (Tables A to F) Regulations 1985 (SI 1985/805) reg 70 ............................................................................................................. 526 reg 85 ............................................................................................................. 526 Constitutional Reform Act 2005 Pt 2................................................................................................................. 120 Copyright Act 1911 ........................................................................... 245, 253, 261 s 31 ................................................................................................253, 257, 262 Copyright Act 1956 s 46(4) ............................................................................................................ 262 Copyright, Designs and Patents Act 1988 s 171(1)(e) ...................................................................................................... 262 Court of Chancery Act 1852 .............................................................................. 460 Court of Chancery Procedure Act 1852 s 61 ................................................................................................................ 129 Cruel Treatment of Cattle Act 1822 ................................................................... 531 s 1 .................................................................................................................. 531 Cruelty to Animals Act 1835.............................................................................. 531 Cruelty to Animals Act 1849.............................................................................. 531 Cruelty to Animals Act 1854.............................................................................. 531 s 3 .................................................................................................................. 531 Cruelty to Animals Act 1876.............................................532–34, 536–37, 539–40 s 2 .................................................................................................................. 533 s 3(1) ...................................................................................................... 533, 534 (2) ............................................................................................................... 533 (3) ............................................................................................................... 533 (4) ............................................................................................................... 533 (6) ............................................................................................................... 533 s 5 .................................................................................................................. 533 s 12 ................................................................................................................ 533 s 22 ................................................................................................................ 533 De Prerogativa Regis see Land of Lunatics Act 1324 Directors Liability Act 1890 ............................................................................... 483 Divorce Reform Act 1969 .................................................................................. 578 Earl Aylesford’s Estate (Amendment) Act 1882 .................................................. 353 Family Law Act 1996 ss 30–33 ......................................................................................................... 573 Felony Act 1870 s 1 .................................................................................................................. 139 Forfeiture Act 1870 s 1 .................................................................................................................. 118

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Table of Legislation

Forfeiture Act 1982 ............................................................................................ 139 Habeas Corpus Act 1679 ..................................................................................... 66 Huddersfield Improvement Act 1848 ......................................................... 272, 282 Human Rights Act 1998 .............................................................................. 264–66 Income Tax Act 1918 s 37 ................................................................................................................ 535 Infants’ Property Act 1830 s 28 ................................................................................................................ 462 Infants’ Relief Act 1874 ..................................................................................... 355 Inheritance Act 1833 .................................................................................. 134, 155 Insolvency Act 1986 s 178 .............................................................................................................. 118 Intestates Estates Act 1884 s 4 ..................................................................................................118, 150, 153 Irish Land Act 1870 ........................................................................................... 296 Joint Stock Companies Letters Patent Act 1869 (Can) ....................................... 400 Knackers Act 1844 ............................................................................................. 531 Land Charges Act 1972...................................................................................... 573 s 2 .................................................................................................................. 573 s 4 .......................................................................................................... 569, 573 Land of Idiots Act 1324 ..................................................................................... 462 Land of Lunatics Act 1324 (De Prerogativa Regis) ................ 461–62, 464–66, 579 Land Registration Act 1925 ............................................................................... 573 s 70(1)(g) .......................................................................................... 559, 569–70 Land Registration Act 2002 ............................................................................... 154 s 29 .................................................................................................................... 573 s 34 ................................................................................................................ 573 s 79(1) ............................................................................................................ 154 (2) ............................................................................................................... 154 sch 1(2) .......................................................................................................... 569 sch 3(2) .......................................................................................................... 569 Larceny Act 1901 ............................................................................................... 361 Law of Property Act 1925 s 40 ................................................................................................................ 434 s 53(1)(b) ............................................423, 426, 432, 434, 436, 442–49, 451–52 (2) ...............................................................................436, 442, 443, 447, 450 s 62 ................................................................................................................ 570 s 148 .............................................................................................................. 118 s 199 .............................................................................................................. 567 Law of Property Amendment Act 1859 ...................................................... 134, 155 Law of Property (Miscellaneous Provisions) Act 1989 s 2 .................................................................................................................. 434 Law Reform (Husband and Wife) Act 1962 ....................................................... 561 Law Reform (Married Women and Tortfeasors) Act 1935 s 2 .................................................................................................................. 576 Law Reform (Miscellaneous Provisions) Act 1949 ............................................. 579 Law Reform (Miscellaneous Provisions) Act 1970 s 2(1) .............................................................................................................. 615

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xliii

Laws relating to Usury and to the Enrolment of Annuities Act 1854.................. 334 Limitation Act 1623 s 1 .......................................................................................................... 650, 654 s 3 .................................................................................................................. 650 Limitation Act 1939 ........................................................................................... 662 s 26(6) ............................................................................................................ 661 s 19 .......................................................................................................... 649–50 Limitation Act 1980 s 2 .................................................................................................................. 647 s 21 .......................................................................................................... 647–49 (1)........................................................................................................... 645, 648 (a) ....................................................................................................... 646, 647 s 32 ................................................................................................................ 646 (1)(b)........................................................................................................... 661 s 35 ................................................................................................................ 644 Lord Aylesford’s Estate Act 1882 ....................................................................... 352 Lord Aylesford’s Estate (Amendment) Act 1884 s 4 .................................................................................................................. 352 Lord Tenterden’s Act see Statute of Frauds Amendment Act 1828 Lunacy Act 1842 ................................................................................................ 457 Lunacy Act 1890 ........................................................................................ 465, 471 ss 90–107 ....................................................................................................... 457 s 108(2) .......................................................................................................... 463 s 117 .............................................................................................................. 463 s 120 .............................................................................................................. 463 s 124 ...................................................................................................... 463, 467 s 128 .............................................................................................................. 467 Lunacy Regulation Act 1853 ........................................................................ 462–63 s 26 ................................................................................................................ 459 s 42 ................................................................................................................ 457 s 116 .............................................................................................................. 463 Magna Carta 1215 s 32 ................................................................................................................ 118 Married Women’s Property Act 1882 s 17 .......................................................................................... 560–63, 616, 641 Married Women’s Property Acts 1870–93 .......................................................... 576 Married Women’s (Restraint on Anticipation) Act 1949 s 1 .................................................................................................................. 576 Matrimonial Causes Act 1973............................................................................ 611 Matrimonial Causes (Property and Maintenance) Act 1958 s 2 .................................................................................................................. 559 Matrimonial Homes Act 1967 ..................................................................... 575–76 s 2 .................................................................................................................. 573 Matrimonial Proceedings and Property Act 1970 ............................................... 611 s 37 ........................................................................................................ 611, 615 Mental Health Act 1959 .................................................................................... 468 Misrepresentation Act 1967 s 2(1) .............................................................................................................. 496

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Money-lenders Act 1900 .................................................................................... 355 Parry Sound Town Act 1950 (Ont) s 1 .................................................................................................................. 395 Poisoned Flesh Prohibition Act 1864.................................................................. 531 Praemunire Statute 1353 ................................................................................ 21, 31 Praemunire Statute 1402 ............................................................................ 3, 21, 31 Property of Lunatics Act 1852 s 1 .................................................................................................................. 462 Property (Relationships) Act (NZ) s 4 .................................................................................................................... 84 Ramsden Estate Act 1867 .............................................................................. 302–3 Ramsden’s Estate (Leasing) Act 1859 ....................................... 279, 283–84, 302–3 Registration Act 1864 (Ind)................................................................................ 113 Sales of Reversions amending Act 1867 ..................................................... 334, 341 Settled Land Act 1882 ........................................................................................ 352 Solicitors Act 1888 ............................................................................................. 361 Stamp Duties Act 1898 (NSW)............................................................................. 81 s 49(2)(A)(e) ..................................................................................................... 81 Statute of Anne, see Act for the Encouragement of Learning, etc 1710 Statute of Elizabeth, see Charitable Uses Act 1601 Statute of Frauds 1677 ................................................................................... 37, 75 s 4 ..................................................................................................434, 435, 436 s 6 .................................................................................................................. 479 s 7 ................................................................. 423, 426, 435, 439, 443, 444, 451 ss 7–9 ............................................................................................................... 59 s 8 ......................................................................................58, 60, 436, 442, 442 Statute of Frauds Amendment Act 1828............................................................. 479 Statute of Tenures 1660 ..................................................................................... 118 Statute of Uses 1536............................................................. 26, 119, 137, 150, 151 Statute of Wills 1540.......................................................................................... 163 Supreme Court of Judicature Act 1873 ................................................ 362–63, 375 s 25(11) .......................................................................................................... 386 Supreme Court of Judicature Acts 1873–75 ....................................................... 571 Torts (Interference with Goods) Act 1977 s 3(1)(a) .......................................................................................................... 605 (b) ............................................................................................................... 605 Town and Country Planning Act 1947 ................................................................. 84 Town Gardens Protection Act 1863 s 1 .................................................................................................................. 215 Trustee Act 1888 s 1(3) .............................................................................................................. 649 s 8 .................................................................................................................. 649 Trustee Act 1925 ........................................................................................ 583, 600 s 1 .................................................................................................................. 583 s 57 ................................................................................................................ 601 (1) ............................................................................................................... 600 s 61 ................................................................................................146, 601, 646 s 68(17) .................................................................................................. 646, 649

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xlv

Variation of Trusts Act 1958 .............................................................................. 600

National Legislation (Regnal Year) 27 Edw III c 1 (1353) ........................................................................................... 31 17 Ric II c 6 (1393) ............................................................................................ 491 4 Hen IV c 23 (1402) ........................................................................................... 31 4 Hen VII c 4 (1488) ............................................................................................ 12 32 Hen VIII c 46 (1540) ..................................................................................... 460 13 Eliz c 5 (1571) ................................................................................................. 77 13 Eliz c 10 (1571) ......................................................................................... 16–17 s 2 ...................................................................................................................... 5 14 Eliz c 11 (1572) ............................................................................................... 16 s 5 .................................................................................................................... 16 18 Eliz c 2 (1576) ..................................................................................... 12, 16–17 12 Car II c 24 (1660) ......................................................................................... 460 2 & 3 An c 12 (1703)........................................................................................... 67 3 Geo II c 30 (1729) ........................................................................................... 124 59 Geo III c 60 (1819)........................................................................................ 315 7 & 8 Vic c 21 (1844) .................................................................. 272–73, 285, 289 11 & 12 Vic c 14 (1848) .................................................................................... 272 14 & 15 Vic c 83 (1851) .................................................................................... 460

International Treaties and Conventions Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1962 .......................................................................................... 578 Convention on the Nationality of Married Women 1957 ................................... 578 Convention on the Political Rights of Women 1952 ........................................... 578 European Human Rights Convention 1950 Art 8 ............................................................................................................... 265

1 The Earl of Oxford’s Case (1615) DAVID IBBETSON*

A. INTRODUCTION

I

T IS THE fate of cases, over time, to be classified and pigeon-holed to the extent that their original sense, or senses, are eroded out of view. The Earl of Oxford’s Case1 is no exception to this. It appears in White and Tudor’s Leading Cases in Equity2 as the principal case dealing with relations between Chancery and the Common Law, reflecting the very sharp focus on this issue in the reported judgment; and recent legal historians have placed it firmly in the context of the dispute over jurisdiction between Sir Edward Coke and Thomas Egerton, Lord Ellesmere.3 This was, undoubtedly, one of the issues in the case. As with most Equity cases in the

* I am grateful to Steven Churches, David Hoyle, Richard Hoyle, Neil Jones, Colin Lizieri, Mike Macnair, Richard Nolan and Graham Virgo for assistance and comments; they bear no responsibility for errors or misinterpretations that remain. Particular thanks are due to the Master, Fellows and Scholars of Magdalene College, Cambridge, for permission to consult and quote from their archives. Unless otherwise stated, manuscript references are to sources in The National Archives, London. Other conventional abbreviations used are: MCC—Magdalene College Cambridge; HLS—Harvard Law School; BL—British Library; CUL—Cambridge University Library; HMC—Historical Manuscripts Commission. Many of the archival documents are transcribed and translated by Nina Green at . When referring to State Papers I have added references to the volume and page of the relevant calendars: Letters and Papers Foreign and Domestic, Henry VIII (‘L & P’), Calendar of State Papers, Domestic, Elizabeth (‘CSPD’). The dating of the documents by the editors of the calendars is very unreliable. Spelling has been modernised throughout. 1 (1615) Chan Rep 1, 21 ER 485. The very brief report at Tot 126, 28 ER 143 sub nom Comes Oxon’ v Neeth, is of no value. 2 EP Hewitt and JB Richardson (eds), White and Tudor’s Leading Cases in Equity, 9th edn (London, Sweet & Maxwell, 1928) 1.615. 3 JP Dawson, ‘Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616’ (1941) 36 Illinois Law Review 127; JH Baker, ‘The Common Lawyers and the Chancery: 1616’ (1969) 4 Irish Jurist 368; LA Knafla, Law and Politics in Jacobean England (Cambridge, CUP, 1977) 171–73; M Fortier, The Culture of Equity in Early Modern England (Aldershot, Ashgate, 2005) 76–81 (cf ‘Coke, Ellesmere, and James I’ (1998) 51 Renaissance Quarterly 1255). See too CW Brooks, Law Politics and Society in Early Modern England (Cambridge, CUP, 2008) 142–52.

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period, it existed in relation to an actual or a potential decision at Common Law, in this case the decision of the Court of King’s Bench in the Magdalen College Case, Warren v Smith.4 The Magdalen College Case had held for one party in the complex of litigation, Magdalene College Cambridge, acting through its Master Barnaby Goche and its Bursar John Smith, while the Earl of Oxford’s Case in Chancery found for the other party, Henry, the Earl of Oxford. It was unavoidable, therefore, that the issue of the proper relationship between Common Law and Equity should have been raised. Moreover, alongside the Magdalen College Case and the Earl of Oxford’s Case there was a reported habeas corpus action, Googe and Smith’s Case,5 in which the King’s Bench was asked to rule on the legitimacy of imprisonment by order of the Chancery when there had already been a judgment at Common Law. But careful reading of the records suggests that it was only one issue in the case, and a relatively minor one at that. Ellesmere’s speech, as reported, was directed at this point alone; but there is some room for doubt whether it was ever actually delivered, and it should not be allowed to mask the broader issues in the litigation. It is as well to sketch in this background at the start.6 The question whether Chancery had a power to act after judgment had been given at Common Law had been rumbling since the early years of the sixteenth century.7 The matter had been formally discussed by the Common Law judges in Finch v Throckmorton in 1597,8 and had there been resolved against Chancery intervention. Egerton, then Lord Keeper and not yet created Lord Ellesmere and elevated to the office of Lord Chancellor, may for the time being have accepted this. However, a contemporary poem to him by the poet Samuel Daniel, whose patron Egerton was, portrays him as holding the balance between the excessive rigour of the law and the rule of unbridled conscience;9 and it may be that this reflects Egerton’s own perception of his role. In any event, from the beginning of the reign of James I he began to award injunctions against the enforcement of Common Law judgments, to the disapproval of the Common Law judges. Thomas Fleming, Chief Justice of the King’s Bench from 1607, oversaw the use of legal means against these Chancery injunctions: habeas corpus applications to release those imprisoned by the Chancery for refusing to obey such 4

(1615) 1 Rolle 151, 81 ER 394; 11 Co Rep 66, 77 ER 1235; Cro Jac 364, 79 ER 312. (1615) 1 Rolle 278, 81 ER 487. 6 Dawson (n 3); Baker (n 3); Knafla (n 3) 155–81. 7 JH Baker, Oxford History of the Laws of England, VI (Oxford, OUP, 2003) 173–79. 8 Finch v Throckmorton (1597) BL MS Harl 6686 f 222v (Coke’s MS report), 118 S[elden] S[ociety] 441; Coke, Third Institute, 124; Fourth Institute, 86. Dawson (n 3) 134–35. 9 S Daniel, A panegyrike congratulatorie deliuered to the Kings most excellent Maiestie at Burleigh Harrington in Rutlandshire (1603), sig C, ‘To Sir Tho: Egerton Knight, Lord Keeper of the Great Seale of England’. For Daniel and his relation to Egerton, see J Pitcher, ‘Samuel Daniel’s Gift of Books to Lord Chancellor Egerton’ (2005) 17 Medieval and Renaissance Drama in England 216. 5

The Earl of Oxford’s Case 3 injunctions, and threats of indictments under the Statute of Praemunire (1402) for acting contrary to Common Law judgments. The situation was exacerbated when Fleming was succeeded by Coke in 1613. In Glanville v Courtney (1614–15)10 the friction between the two courts—and between the two men—came to a head with the Chancery re-imprisoning a man who had been released on habeas corpus by the King’s Bench; and an attempt to resolve the problem in Parliament came to nothing. At this point the Earl of Oxford’s Case arose, its report focusing on the legitimacy of the Chancery decree. The whole question was then referred to the Privy Council, and in June 1616 the King himself gave a speech in the Star Chamber affirming the legitimacy of Chancery intervention.11 Yet behind the litigation were the parties, the facts and the eventual result. Neither the college nor the Earl of Oxford would have been particularly interested in the legal niceties or the fight between the Chief Justice and the Lord Chancellor; they simply wanted to win. We can reconstruct the facts behind the dispute in some detail, and in doing so we may cast some doubt on the story which has been told by biographers and by historians of Magdalene College and the University of Cambridge, who have not always appreciated the significance of the legal devices which were used or the subtleties of the parties’ tactics in the litigation and in their attempts to get the conflict resolved in their own interests. This chapter will examine in turn the land transactions which constitute the factual background to the litigation, the litigation itself and its contextual significance, and lastly the issue for which the Earl of Oxford’s Case has, for better or worse, become famous.

B. THE LAND TRANSACTIONS

Travel north by punt from the centre of Cambridge, and within a few minutes you reach Magdalene College. There, on a modern building, is a gargoyle of a sixteenth-century Genoese moneylender, Benedict Spinola. Spinola is vilified in college tradition as the man who in 1575 cheated the college out of a potentially very valuable plot of land in London, began to build on it, and in a few years sold it on to the Earl of Oxford at a great profit. It is these transactions that we must examine carefully. The land which was to be the subject of the dispute was originally the property of the Priory of Holy Trinity, Christchurch. It had been surrendered to the Crown in 1532 as a result of unpaid debts, and had been granted

10 Glanville v Courtney 2 Bulst 301, 80 ER 1139; Cro Jac 343, 79 ER 294; 1 Rolle 111, 81 ER 365; 1 Rolle 219, 81 ER 444; Moo 838, 72 ER 839; 118 SS 440. 11 JP Sommerville (ed), King James VI and I: Political Writings (Cambridge, CUP, 1995) 204, esp at 215.

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to Thomas, Lord Audley in 1534.12 Audley died in 1544, and it came to the newly-founded Magdalene College under his will, together with the rectory of the church of St Catherine Cree.13 Just outside the city walls, the land was known as the ‘Great’ or ‘Convent’ (or ‘Covent’) garden, and was approximately seven acres in extent. It lay between Bishopsgate to the west and Aldgate to the east, and was bounded to the south by Houndsditch and to the north by Hog Lane, later known as Petticoat Lane.14 For the time being it was little more than low-grade land, leased to one Thomas Casye at a rent of £9 per year;15 the Chancery litigation of the early seventeenth century was to describe it as having been a laystall, or rubbish tip, for the city of London.16 Almost immediately the land and rectory were leased for 50 years to Laurence Owen, a gunfounder whose property was contiguous to the college’s land, at a rent of £20 per year.17 According to the report of the commissioners enquiring into the affairs of the University in 1546, the rent was divided into two parts, £11 for the rectory and £9 for the land.18 This was a significant part of the college’s total annual income of £44.9s.6d.19 There was nothing unlawful in the college’s making a lease for 50 years, but Audley’s executors clearly thought that it was unwise. Exercising the power to make statutes for the college granted to them under Audley’s will, they therefore took steps to provide that the college might in future make leases for at the most 10 years.20 They were, however, very slow, and it was not until 1555 that the statutes were in fact given to the college.21 Already, in 1547, the then Master Richard Carr and the fellows had made a lease of the reversion of the land for a further 21 years, from 1595 to 1616, to one Richard Noke, point-maker of Cambridge, at the same rent of £20 per year.22

12

Victoria County History, London, vol 1, 471. PCC will dated 19 April 1544, proved 18 Feb 1545: PROB 11/31 f 3. 14 P Cunich and R Hyam, ‘Lost Inheritance: the College’s City of London Property at Aldgate’ (1991–92) 36 Magdalene College Magazine and Record (New Series) 42, 43–44. 15 PROB 11/31 f 3, at f 5. 16 C 78/291 no 18 m 2. 17 Lease referred to in C66/1128 m 6. 18 E 315/440 f 33v. To the same effect, Earl of Oxford’s Case 1 Chan Rep 1, 21 ER 485 erroneously printed as £40 and £9 (for variants between print and manuscript reports of the case, see below text after n 167); the same figure is given in SP 1/196 f 73 (L & P 19.2 477). The statement in SP 12/103 f 11 (CSPD 1547-80 493) that the division was £12.10s for the rectory and £7.10s for the land is inaccurate, but suggests that in reality it might have been treated as a lump sum payment of £20. 19 E 315/440 ff 32–33v; P Cunich, D Hoyle, E Duffy and R Hyam, A History of Magdalene College Cambridge, 1428–1988 (Cambridge, CUP, 1994) 47. 20 SP 12/103 f 3 (CSPD 1547–80 493); SP 15/39 f 141 (CSPD Addenda 1580–1625 520); SP 1/196 f 73 (L & P 19.2 477). 21 Cunich et al (n 19) 55. 22 SP 12/103 f 11 (CSPD 1547–80 493); date from patent making grant to Spinola. For Noke, who had been irregularly appointed university stationer some years previously, see D McKitterick, History of Cambridge University Press, vol 1 (Cambridge, CUP, 1992) 46–47. 13

The Earl of Oxford’s Case 5 Magdalene was not at all a wealthy college, ‘by far the poorest of the colleges in Cambridge’ at this time.23 By the early 1570s, under the mastership of Roger Kelke, matters had become so bad that tradesmen were refusing to deal with the college, and only provided necessaries on the credit of the President, William Bulkeley.24 It was in this context that it turned to its land in London to see if it was possible to increase the revenue from it. Contact was made between Kelke and Benedict Spinola, a Genoese merchant, moneylender to the Queen and one of the wealthiest men in London,25 who was by then renting part of the Covent garden.26 The proposal was that the land should be conveyed in fee farm to Spinola at a rent of £15 per year (perhaps originally £30), substantially more than what the college was then receiving.27 Not all the Fellows were in favour of this, and one, John Bell, petitioned Lord Burghley to intervene to prevent the transfer.28 But Bell’s voice was clearly unable to prevail in the college, since in December 1574 it moved to grant the land to Spinola, together with the rectory. This was not altogether simple. Leaving aside the limitation of leases to 10 years in the college’s own statutes,29 any grant to Spinola would come up against a parliamentary statute of 1571 which, inter alia, rendered void any feoffment or lease for more than 21 years or three lives made by a college to any person or persons, bodies politic or corporate.30 In an attempt to get round this restriction, the college and Spinola undertook some rather complex manoeuvres: instead of conveying the property directly to Spinola, it was agreed to use the Queen as an intermediary. The essence of

23

Cunich et al (n 19) 47. Ibid, 75–76, quoting SP 12/127 f 28 (dated 12 December 1578). 25 For Spinola, see GD Ramsay, ‘The Undoing of the Italian Mercantile Colony in Sixteenth Century London’ in NB Harte and KG Ponting (eds), Textile History and Economic History (Manchester, Manchester University Press, 1973) 22, 41–43. 26 Spinola’s name appears on a list of those renting land at this time (clearly as sub-tenants from the college: SP 12/288 f 63 (CSPD 1601–03 313) (undated)). See too SP 1/196 f 73 (L & P 19.2, 477), where John Bell, a fellow of the college, refers to ‘one Benedict Spinola, having obtained part of the said former term in parcel of the said gardens’. The editors’ dating of this document to 1544 is impossible, since Bell could not have held his fellowship until c1570 (JA Venn, Alumni Cantabrigienses (Cambridge, CUP, 1922), sub nom). 27 SP 12/288 f 63 (CSPD 1601–03 313) refers to ‘one of the college tenants so that he may have the gardens only, in fee farm, will presently pay to the college by year’ £30; but the first use of the word ‘college’ is interlined as an addition, so it may well be that this refers to Spinola, who was the college’s sub-tenant. If so, it suggests that he might originally have been offering to pay the larger sum to the college. 28 SP 1/196 f 73 (L & P 19.2 477). 29 Above, n 20. 30 Stat 13 Eliz c 10 s 2 (Statutes of the Realm, 4 544). For the statute and the colleges’ response, see S Bendall, C Brooke and P Collinson, History of Emmanuel College, Cambridge (Woodbridge, Boydell Press, 1999) 129–31. The Queen was not above ignoring the statute: in 1579 she granted Merton College’s manor of Malden to the Earl of Arundel for 2,000 years at a rent of £40 per year: GH Martin and JRL Highfield, History of Merton College, Oxford (Oxford, OUP, 1997) 169. 24

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the agreement was encapsulated in the five provisions of an indenture of 10 December 1574:31 a)

the college covenanted to grant to the Queen the rectory and the Covent garden, receiving £25 per year for the rectory and £15 per year for the garden; b) in exchange, Spinola covenanted to obtain from the Queen the rectory and the garden, provided that the college had duly made the conveyance to her; c) provided all this occurred, the college undertook to use its best endeavours to obtain parliamentary confirmation of the grant of the garden to Spinola; d) Spinola covenanted to convey the rectory to the college’s nominee, free of any incumbrances imposed on it by him; and e) Spinola covenanted to make a further deed to the college giving a right to distrain for unpaid rent, with a backstop right of re-entry should the rent be still unpaid after a year. In pursuance of this agreement, three days later the college by separate indentures granted the garden and the rectory to the Queen, at rents of £15 per year and £25 per year respectively, with a proviso that if she did not convey them to Spinola by 1 April 1575 the college’s grants to her would be void and the college would have a right of re-entry. The indentures were duly acknowledged in the Chancery on 26 January 1575 by the college’s attorneys: that of the land by Roland Broughton of the Inner Temple and that of the rectory by Thomas Walter of Gray’s Inn.32 Three days later, by separate letters patent under the great seal, the Queen granted the garden and the rectory to Spinola in fee.33 The traditional analysis of this transaction sees Spinola as the villain of the piece, laying his hands on valuable property for far less than its true value; Burghley is portrayed as Spinola’s willing accomplice, serving his royal mistress by obtaining such favourable terms for the royal moneylender; and Kelke is treated as cravenly following Burghley’s will however much this was to the disadvantage of the college.34 There is, for sure, evidence to support this analysis. John Bell’s petition to Burghley, cited above, points to Spinola as the moving force behind the transaction; a letter from Kelke to Burghley dated 26 January 1575 speaks of him and the fellows having ‘satisfied your request 31

MCC A/27/5. MCC A/27/6; A/27/7. It is not clear why separate attorneys should have been used. In the recognisance relating to the rectory, Walter is expressly vouched for by Broughton. 33 C 66/1128 m 6, m 13 Calendar of Patent Rolls 1572–75, nos 2841, 2851. 34 EK Purnell, Magdalene College (London, Robinson, 1904) 65–77, vi (‘fraud, at which the highest in the land connived’); Cunich et al (n 19) 77–79; V Morgan, A History of the University of Cambridge, II, 1546–1750 (Cambridge, CUP, 2004) 175–76; D Pearson, Edward de Vere (1550–1604) (Aldershot, Ashgate, 2005) 46–47. 32

The Earl of Oxford’s Case 7 touching Mr Spinola with all diligence and dutiful obedience accordingly, though not without evil report of some evil disposed persons’;35 and there is no doubt that Kelke, like many others in Cambridge and elsewhere in England, had sought Burghley’s assistance in getting preferment. None the less, there is real room for doubt whether things were quite so underhand. It is abundantly clear from Kelke’s letter to Burghley that the latter had been putting pressure on the college in some way and for some reason, but it does not follow that his purpose was to despoil the college to the advantage of Spinola. The principal content of the letter was the reform of the college’s statutes, requesting that Burghley should first cause them to be sealed by the Queen with the great seal before ‘sending them home’, so that they should have as much authority as the founder’s statutes, which had themselves been made under the great seal. The number of fellowships was a matter for the statutes—it had been fixed at six in the reformed statutes of 156536—and although there are no accurate lists of Fellows at this time, it is known that there was a speedy turnover and not infrequent vacancies.37 It would be little wonder that this was a matter of concern when the statutes were being amended, and that pressure might be put on the college to raise its income in order to support its statutory number of Fellows. Such an interpretation is consistent with an undated document commenting on changes which might be made to the college’s statutes, which ends apparently inconsequentially with a reference to the sum of £20, ‘which yearly shall grow by the grant in fee farm to Mr Benedict Spinola’, which would provide an income of £6.13s.4d for each of two Fellows to be appointed, with the balance of £6.13s.4d to remain for the general purposes of the college.38 Further evidence points against Burghley’s close involvement in the transaction between Spinola and the college. On 21 January 1575, one Thomas Wattes wrote to him to say that following Burghley’s instructions he had approached the Solicitor-General, Thomas Bromley, who had told him that Mr Hurleston of the Inner Temple was acquainted with the details of the college’s conveyance to Spinola; we know from other sources that Hurleston acted as Spinola’s lawyer.39 Wattes then passed on to Burghley the details which he had obtained from Hurleston.40 If Burghley was 35

SP 12/103 f 14 (CSPD 1547–80 494). Cunich et al (n 19) 55. 37 Ibid, 69. 38 SP 1/244 f 238, 239v (L & P Addenda 1.2 558). There is no apparent warrant for the editors’ attribution of this document to 1544. 39 REQ 2/178/60/2, Spinola’s answer to a petition in the Court of Requests from Julio Borgarucci in 1580, signed by Hurleston as his counsel. For this action, see below, n 61. Bromley himself had acted for Spinola in a Chancery case: Pype v Spinola (after 1558) C3/143/81. 40 SP 12/103 f 11 (CSPD 1547–80 493), dated 21 January 1575. It may be no coincidence that the College’s attorney and the draftsman of the indenture of 10 December between the college and Spinola was another Inner Templar, Rowland Broughton. 36

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attempting to discover exactly what the college was doing as late as this, it is highly unlikely that he was collaborating with Spinola in a plot to further the latter’s interests at the expense of the college. A more plausible reading of the evidence is that Burghley had been alerted to the concerns whether the transaction was in the college’s interests by the petition of John Bell and a further one to the same effect, dated 8 January 1575, from Thomas Barber, one of Audley’s executors,41 and that he was taking steps to discover exactly what it was that the college was doing. The nub of the matter, surely, is that by the time of Kelke’s mastership, Magdalene was abjectly poor. In the absence of another benefactor—a hoped-for benefaction from the Duke of Norfolk in 1564 had never materialised, and the first major gift since the college’s foundation, a donation from Sir Christopher Wray, was not to arrive until 158942—if the college was to survive it had no obvious alternative but to increase the income from its existing assets; and the only exploitable asset which it had was its Aldgate property.43 The real problem was not that the college was being hoodwinked by an Italian moneylender, blind to the potential value of the land which was said by Bell to be then producing a rental income (by subleases, evidently) of over £60 per year and which would be expected to produce double that when the leases ended and it finally returned into the hands of the college.44 It was that the leases granted in the 1540s still had more than 40 years left to run. It seems clear that Spinola was intending to break the existing leases of the land and rectory. Exactly how this was to occur is not clear. It may be that he was going to buy out the existing lessees, it may be that he was going to bully them out, it may be that he was going to use a combination of these. It is possible, even, that he had a legal right to do this because of the peculiarity of the grant to him via the Queen: the contemporary law books suggest that a grant of land in fee by the Crown without express reservations of any lesser rights would normally pass a full, unencumbered title to the grantee.45 In any event, it is known that at about this time he was harrying John Casye (the successor of Richard Casye, who was farming the Aldgate land in 1544) with threats to dispossess him,46 and in a 41

SP 12/103 f 3 (CSPD 1547–80 493). Cunich et al (n 19) 76, 88–90. 43 Its other main asset was a rentcharge of £20 per year on the manor of Purleigh, Essex; but this had been fixed by Parliament in 1543 and was not able to be changed: ibid, 43–44. 44 SP 12/288 f 63 (CSPD 1601–03 313), probably dating from this time, lists 22 tenants paying a total of £39.17s.8d to Casye for lands in half of the Great Garden and a further nine paying £16.15s.6d to one Gibson for lands in the other half of the Great Garden, with Gibson receiving also £13 for the parsonage. 45 Brooke Abridgement, Patentes, 3, 39. This would not mean that the sub-lessees were without remedy, but it would only have been a remedy in damages; Spinola would still have been able to get control of the land in order to develop it. 46 SP 12/146 f 213 (CSPD 1547–80 701). 42

The Earl of Oxford’s Case 9 memorandum to Burghley in 1577, Richard Howland, Kelke’s successor as Master of Magdalene, stated that, ‘as Mr Spinola can better certify you’, the leases were by then utterly void.47 It is only the destruction of the lease that explains the otherwise incomprehensible transaction relating to the rectory: the transfer from the college to the Crown and from the Crown to Spinola, with a condition that Spinola should reconvey it to the college or its nominee. The whole purpose of this, according to Lord Ellesmere in the later litigation, was that the college should have the rectory free of the lease.48 To assess the transactions of 1574/75, and Spinola’s behaviour, we should begin with the grant of the rectory. Pulling the pieces together, before the college parted with it, it was receiving a rent of £11 per year, and according to the rental of c1574 its tenant had sub-leased it for £13 per year.49 The actual income from it was probably little in excess of the £25 per year which Spinola had agreed to pay for it: Howland’s memorandum to Burghley in 1577 says that the college was trying to find someone else to whom it could be assigned, but the only person who was willing to take it at a rate the same as or greater than Spinola was currently paying was of dubious financial credit,50 and when a lease of it was made in 1578 the agreed rent was £28 per year.51 In effect, Spinola was guaranteeing the college something like the full commercial rent until a better lessee should have been found, and taking upon himself the responsibility of breaking the existing lease. Small wonder that when the rectory was leased to Ralph Parys of Dullingham, near Cambridge, in 1578, Spinola is described—by the college—as having been acting as its ‘trustee’.52 The land, though, was a different matter. It was later to be said in Chancery that it was Spinola’s intention to turn the waste ground into garden plots and to build houses on these, and that he cleared and fenced the land, creating 50 plots which he leased out to individuals who built houses on them and himself building a house on part of the land which he retained.53 When he attempted to sell it on to his countryman Julio Borgarucci in 1579, it was said that its rental value by then was £180 per year, its capital value something in excess of £2,000;54 and when it was in fact sold later that year the purchase price was £2,500. Spinola had obvi47

HMC 13 Salisbury, no 509. C 78/291 no 18 m 3, m 5. 49 SP 12/288 f 63 (CSPD 1601–03 313). 50 HMC 13 Salisbury no 509. 51 MCC A/27/10. 52 MCC A/27/10, college’s annotation; Purnell (n 34) 72–73. 53 C 78/291 no 18. Although this was an ex parte statement, taken to be true simply because it was formally unchallenged, there is no reason to doubt its fundamental veracity; if anything, it would have been in the petitioners’ interest to have downplayed the extent of Spinola’s development. 54 REQ 2/178/60/1. The figures may not be wholly accurate, since they appear in Borgarucci’s ex parte petition in the Court of Requests; but he would have had no reason to 48

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ously made a very substantial profit. We do, however, have to be careful not to exaggerate this, since we do not know how much he had had to pay out to break the pre-existing leases or to develop the land, nor what his liabilities were to his own lessees against which he was to guarantee the Earl of Oxford.55 That Spinola should have made a profit is hardly a cause for surprise: he was a shrewd businessman with a very large amount of capital which could be invested in the improvement of the land. The real question is how far the college had made a bad bargain. Taking together the transactions relating to the land and the rectory, as was clearly the parties’ intention, the college was in effect conveying its freehold reversion in the land to Spinola in exchange for an immediate doubling of its rentcharge from £20 to £40.56 The calculation of the value of freehold reversions is fraught with difficulty even today;57 still less was it a science in the sixteenth century. However, making a number of assumptions which would have looked reasonable in 1575, and ignoring completely the college’s impecuniosity (and hence the risk that it would have to sell at an inopportune moment), the capital value of the freehold reversion on the land would have been little more than £200.58 If anything, even this is an exaggeration of the value on sixteenth-century approaches, for reversionary interests tended then to be

misrepresent them significantly. Spinola’s reply is at REQ 2/178/60/2. See Pearson (n 34) 47 (erroneously stating that the rental value was £1,900 per year). 55

C 54/1080 no 6. In fact this underestimates the college’s gain, since the income from the rectory would increase if the value of the rectory increased as the college could call for its retransfer to it at any time; it was only the charge on the land that was fixed. 57 For the calculation and its difficulties, see Earl Cadogan v Sportelli [2007] 1 EGLR 253. I am grateful to Professor Colin Lizieri for explaining the theory behind the valuation of reversionary interests; errors in its application are mine alone. 58 The reversion is calculated as MVO/(1+d)t, where MVO is the current market value, d the ‘deferment rate’, and t the number of years until the reversion; the deferment rate is defined as RRFR + RP—RG, where RRFR is the ‘real risk free rate’ (ie the risk-free rate of interest), RP the ‘risk premium’ (ie the risk that the property might have to be sold at an inopportune time), and RG the rate of growth (ie the real growth in value). In making the calculation I have made the following assumptions: – MVO = £1200, calculated as 20 times the rental value obtained from SP 12/288 f 63 (CSPD 1601–03 313) (a factor of 20 is that normally used in calculating the relation between capital and rental at this time, though it is probably a slight overestimate); this is broadly in line with the estimate of John Bell in SP 1/196 f 73 (L & P 19.2 477). – RRFR = 6% (from G Clark, ‘The Cost of Capital and Medieval Agricultural Technique,’ (1988) 26 Explorations in Economic History 265, 273, Table 3 (treating the nominal rate as the real rate, as would have been normal at this time: see Clark, ibid, 268). – RP = 0 (see text). – RG = 1.71 (based on the estimate of John Bell that the rental income from the land would have doubled by the time the leases had ended). – t = 41 (the number of years remaining under the leases). Applying these assumptions, the value of the reversion is estimated at £214. 56

The Earl of Oxford’s Case 11 undervalued.59 Set against this is the value to the college of the increase in the rentcharge by £20 per year. This can be approximately capitalised by multiplying by 20, producing a value of £400. There is therefore no solid justification for the criticism of Spinola or those members of college who supported the sale. Of course, with hindsight, it would soon have been evident that the increase in the value of the land was far greater and far more rapid than would have been predicted; but that was only because of the sale to Spinola, followed by his breaking of the existing leases and investing in the development of the land; and we cannot take hindsight into account in evaluating the transaction. After 1579 Spinola drops out of the picture. As noted above, the sale to Borgarucci did not take place, and instead agreement was made with the Earl of Oxford that the land would be sold to three of his servants (presumably acting as nominees for the Earl) for £2,500, payable by instalments,60 with Borgarucci seemingly to receive a commission of £100.61 It is easy to conjecture why the land was not put into Oxford’s own name: apart from the fact that his personal finances were in a disastrous state, he had a few days previously challenged Sir Philip Sidney to a duel and might reasonably have feared for his life.62 In the event, this transaction ran into difficulties too. According to Spinola’s account, the first instalment of £500 was paid but not the balance, and as a result the sale may in theory have been avoided,63 though Oxford’s nominees none the less granted leases over parts of the land.64 By this stage the precise whereabouts of title to the land was thoroughly confused.65 In the early summer of 1580 steps were taken to clear it up. On 14 June, Oxford’s nominees made an indenture conveying the land to

59

I am grateful to Professor Richard Hoyle for this information. The indenture, dated 27 August 1579, is referred to in the later indenture to Oxford, C 54/1080 no 6. Spinola had had many previous dealings with Oxford; in particular, while Oxford was travelling in Continental Europe after 1575 Spinola had been a channel for communication—and more importantly cash—between him and his father-in-law, Lord Burghley. 61 This was to be the subject of a claim by Borgarucci in the Court of Requests in 1580: REQ 2/178/60. The outcome of this is not known (the entry book of the Court of Requests for this year does not survive), but it is likely that the claim came to nought as a result of Spinola’s death. An endorsement on the petition shows that process issued against Spinola on 15 June 1580, within a few weeks he had fallen ill and was making his will (PROB 11/62 f 294, dated 6 July 1580), and he was buried in St Gabriel Fenchurch on 15 August 1580 (so recorded in Parish Register). 62 Pearson (n 34) especially ch 3; AH Nelson, Monstrous Adversary: The Life of Edward de Vere, 17th Earl of Oxford (Liverpool, Liverpool University Press, 2003) 195–200. 63 REQ 2/178/60/2. 64 C 54/1080 no 5. 65 In 1608 an inquisition post mortem on the death of Oxford derived title from the servants, while the special verdict in the Magdalen College Case derived it from Spinola: C142/305/103; KB 27/1426 m 288. 60

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Oxford himself,66 and one day later Spinola did the same.67 The first of these preserved the rights of the two men to whom leases had been made, presumably with Oxford’s consent, but in the second Spinola covenanted to save Oxford harmless against claims which might in the future be made by anyone tracing their rights through him. As well, it seems that there may have been doubts whether the college might not still have had rights, presumably on the basis that the conveyance of 1574/75 was of questionable validity. It had clearly been seen in 1574 that there might be difficulties— hence the term in the indenture between the college and Spinola that the college would seek parliamentary confirmation of the grant—and in 1576 a statute had been passed ratifying grants which had been made to or by the Queen.68 However, there may still have been questions; justifiably so, since in the event the King’s Bench was to hold in the Magdalen College Case that this statute had not made this grant good.69 If there was uncertainty, this might have been brought to the surface through the Lincoln’s Inn reading of Lent 1582 on the effects of the 1576 statute on grants by the Queen’s letters patent, by Thomas Egerton.70 Very shortly after this, no doubt to strengthen Oxford’s position, Roland Broughton, the draftsman of that conveyance and the college’s attorney, himself made a fine of all the lands to Oxford in consideration of £200.71 It is not clear why the fine should have been made by Broughton rather than the college, but since a fine was conclusive against third parties after five years72 it may simply have been a matter of convenience for Broughton to have done it, though it is perhaps more likely that it was an attempt to avoid the effects of the 1571 statute by making it appear that the grant was not in law made by the college.73 In any event, the intended effect must have been that the college’s potential rights were being bought out for £200. This in effect marks the end of the property transactions giving rise to the Earl of Oxford’s Case. Oxford was to convey the land away in 1591 for the benefit of his second wife, Elizabeth Trentham, part of a complex marriage settlement, but an inquisition post mortem taken after his death 66

C 54/1080 no 5. C 54/1080 no 6. 68 Stat 18 Eliz c 2 (Statutes of the Realm 4 608). 69 Below, 15–18. 70 CUL MS Dd 11.87 f 152, BL MS Harl 5265 ff 136–37; BL MS Harg 207 ff 58, 64, 65v. The surviving notes on the reading do not reveal this point to have been dealt with specifically, though it did deal with the requirement that grants to the Queen required good consideration: below, text at n 105. 71 CP 25/2/170/2949 no 5. 72 Stat 4 Hen VII c 4; Co Litt 262. For the operation of fines, which had changed little in its fundamentals since the twelfth century, see GJ Turner, Calendar of the Feet of Fines relating to the County of Huntingdon (Cambridge, CUP, 1913) cxxiv–cli. A contemporary description of the practice of making fines is Thomas Powell, The Attourneys Academy (London, B Fisher, 1623) 125–29. 73 See below, text at n 108. 67

The Earl of Oxford’s Case 13 in 1604 shows that he died seised of the land, which therefore descended to his heir.74 It was against the heir that the college was to take action in an attempt to recover the property.

C. THE LITIGATION

Oxford died on 24 June 1604. An inquisition post mortem on his Essex lands, taken in the September of that year, makes no mention of the London property, but since it was out of the county we should not necessarily expect it to do so.75 There is no doubt, though, that it was still in the hands of the Oxford family, and at Michaelmas 1606 Barnaby Goche,76 now Master of Magdalene, accepted the rent of £15 from one of the tenants of the Covent Garden, Edward Hamond, giving him an unsealed receipt to this effect.77 However, the college soon began to move to question the position. On 5 February 1607, Goche, acting on behalf of the college, formally ejected Sir Francis Castillion, the lessee of one of the houses on the land, and made a lease for six years to John Smith, the Bursar of the college. This was not a pure fiction—the document making the lease was presented in evidence in the King’s Bench in the Magdalen College Case—but there is no doubt that the lease was made with a view to an action of ejectment being subsequently brought.78 Castillion re-entered immediately and continued to occupy the land,79 but nothing further happened for a while. Matters seem to have been brought to a head when the next year’s payment fell due to the college: at Michaelmas 1607, Castillion was once again ejected, but this time the college remained in possession.80 The intention was no doubt to precipitate an action of ejectment at Common Law, but the new Earl was still a minor in wardship, and he—or more likely his representatives—brought suit in the Court of Wards against the college for its intrusion into the land. The case was first heard in June 1608, when the plantiff’s claim and the defendants’ defence were brought before the court.81 The court, however, at first declined jurisdiction. The inquisition of 1604 had made no reference 74

C 142/305/103. C 142/286/165. HE Bell, Court of Wards and Liveries (Cambridge, CUP, 1953) 69–76, esp at 73–74, citing Lord Winsor’s Case (1611) Ley 31, 80 ER 608. 76 For Goche, see A Thrush and JP Ferris (eds), History of Parliament, House of Commons 1604–1629, vol 4 (Cambridge, CUP, 2010) 405, sub nom Barnaby Gooch. I adopt the spelling used by Goche himself. 77 The receipt, transcribed in full in KB 27/1426 m 288, does not say on whose behalf Hamond was acting. Except where noted otherwise, the information which follows in this paragraph is derived from the special verdict in Warren v Smith, the Magdalene College Case, KB 27/1426 m 288, substantially reproduced in 11 Co Rep 66, 67–68; 77 ER 1235, 1236–39. 78 WARD 9/530 f 337, describing this as an entry for trial of the title. 79 Ibid. 80 Ibid. 81 WARD 9/530 f 185. 75

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to lands outside Essex, and in the absence of an inquisition post mortem to the effect that the former Earl had died seised of these lands there could be no issue touching the wardship. It was therefore ordered that a further inquisition be taken as a matter of urgency, and that the parties should agree on the names of ‘indifferent commissioners’ to do this. John Smith, the college’s Bursar, was subsequently to complain that the college had not had any part in the appointment of the commissioners and had not been able to bring witnesses before them;82 but be that as it may, the inquisition was duly made on 17 August 1608.83 Three findings of the inquisition are pertinent: first, that the Earl had died seised of the Covent Garden in fee; secondly, that the lands were worth £5 per year; and, thirdly, that the commissioners did not know who had been receiving the profits since the death of the former Earl. The first of these was something which the college had wanted to question before the inquisition was made, on the basis that the land had been conveyed away in 1591;84 though it is not clear why it should have mattered to the college specifically that it was the alienees rather than the Earl who were seised. The second point, that the land was worth only £5 per year, causes more of an eyebrow to be raised, given that it was already said to have been worth more than £2,000 in 1580 and even then producing rents of £180 per year. The explanation seems to be that the Earl’s sub-leases, or at least many of them, had been made in exchange for capital payments and only a nominal peppercorn rent.85 This too perhaps explains the third point: if the rents really were that minimal, it is understandable that there might have been doubt as to who—if anybody—had received them. Once the inquisition had been taken, the new Earl’s claim in the Court of Wards could proceed. On 19 October it was argued by Attorney-General Henry Hobart, the Recorder of London Henry Montagu and Lawrence Hyde on the part of the Earl; and Serjeant Augustine Nicholls and John Manningham86 on the part of the college, where it was said that the college was seeking to traverse the inquisition, ie to have it overturned. In the light of this the case was adjourned, the college to retain possession of the land provided it gave a bond to keep the house in repair and to account for mesne profits should it eventually lose the action.87 In time, the college

82

WARD 9/530 f 253. C142/305/103. 84 WARD 9/530 f 253; above, text at n 74. 85 This was said to be the case with the land in question in the Court of Wards, which Castillion was holding at a peppercorn rent (WARD 9/530 f 337), and in the later Chancery proceedings it was stated that the Earl of Oxford had made leases for great sums of money which he had taken as fines (C 78/291 no 18). 86 Manningham was a former student of Magdalene, and it is tempting to guess that it was he who had seen the possibility of reversing the effects of the 1575 transaction. 87 WARD 9/530 f 271v, amended f 337, continued f 436v. 83

The Earl of Oxford’s Case 15 formulated its traverse, and in February 1609 the case re-emerged, this time with the college as plaintiff.88 It proceeded slowly. By the end of May the parties had agreed that there need be no examination of witnesses,89 but it took another year for the court to resolve, after receiving advice from the judges, that the right should be decided at Common Law on a special verdict agreeing all the relevant facts.90 Pursuant to this, Sir Francis Castillion re-entered the land. On 20 December 1610 he made a formal lease for two years to one John Warren, and on 23 December Warren was ejected by John Smith, the college’s Bursar and lessee.91 All was set now for the bringing of an action of ejectment, by this time the normal method of trying title to land.92 The action was brought in the Hilary Term of 1611, and pleaded to issue in the Easter Term of that year.93 The jury found a lengthy special verdict detailing the circumstances set out above and focusing on the legality of the grant of 1574/75; since it refers also to the Acts of Parliament of 1571 and 1576, we may well suspect that the verdict was in truth an agreed statement of facts and issues produced by the parties’ lawyers, on the basis of the issues previously identified in the Court of Wards. The case was argued several times between Hilary Term 1613 and Hilary Term 1615.94 No conclusion was reached. At first it seems that Fleming CJ was inclined to uphold the grant and find against the college,95 but Coke, who had succeeded him as Chief Justice of the King’s Bench in October 1613, seems from the start to have favoured the college’s case.96 Perhaps because of this, while the argument in the King’s Bench was still depending, an attempt was made on the part of the Earl to protect his position by presenting a bill in Parliament to confirm the grant of 1574/75, but this was

88 WARD 9/530 f 504v. SP 15/39 f 141 (CSPD Addenda 1580–1625 520) looks to be a draft of the college’s grounds for the traverse, but the document is badly mutilated so we cannot be sure. 89 WARD 9/531 f 108. 90 WARD 9/532 f 109 (16 May 1610). It was later said that there was a further decree made in Trinity Term 1610 which formulated the special verdict to be found (C 78/291 no 18, m 4); I have not been able to discover this. For the use of the judges in making decisions in the Court of Wards, see Bell (n 75) 98–100. 91 KB 27/1426 m 288. 92 JH Baker, Introduction to English Legal History, 4th edn (London, Butterworths, 2002) 301–03. 93 KB 27/1426 m 288. 94 According to the report in 1 Rolle 151 it was argued in Easter and Michaelmas Terms 1613 and Hilary Term 1614. There are manuscript reports from Hilary 1613 (HLS MS 109 f 23, CUL MS Ii 5.26 f 38v) and Michaelmas 1613 (HLS 109 ff 25, 27) and also Hilary Term 1615 (HLS 109 f 27v). 95 HLS 109 f 23. 96 HLS 109 f 27v.

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abortive.97 The issues were finally brought to a head in the Court of King’s Bench in the Easter Term of 1615 and judgment given for the college.98 The arguments in the King’s Bench in the Magdalen College Case need not be analysed in detail. All the reports show that they were structured in the same way, with four principal points. Most important was that the initial grant from the college to the Queen was avoided by the statute of 1571. It had already been resolved by the judges that the statute did apply to grants of this type,99 and the arguments on both sides were effectively a reprise of those which had arisen earlier. They revolved largely around the question whether the statute bound the Queen, an aspect of the larger and constitutionally more interesting question of when statutes bound the Crown and when they did not. On its proper construction, however, the 1571 statute disabled the college (and other ecclesiastical corporations) from making grants rather than disabling others from receiving property, so the question of the applicability of the statute to the Queen did not directly arise. This point was made by Coke CJ in Hilary Term 1615,100 and unanimously so held by the court giving judgment the following term.101 Given this, it had to be decided whether the grant to the Queen had been subsequently validated. The first possibility was that this had been done by a later statute. An act of 1572,102 excluding from the operation of the 1571 Act grants of houses (with less than 10 acres of land appurtenant to them) in cities, boroughs and suburbs, was at first relied upon, but this was eventually abandoned on the grounds that it had not been expressly referred to in the special verdict of the jury.103 Alternatively, it might have been affected by the statute of 1576.104 This rendered good grants which had been made to the Queen on good consideration,105 but on the facts of 97 Commons Journals, 13 May 1614. A draft of the bill is in BL MS Harl 6806 art 78, transcribed (somewhat inaccurately) in Purnell (n 34) 76–77. 98 (1615) 1 Rolle 151, 81 ER 394; 11 Co Rep 67, 77 ER 1235; Cro Jac 364, 79 ER 312. 99 The Case of Ecclesiastical Persons (1601) 5 Co Rep 14, 77 ER 69. The point is referred to in the reading of Lewis Prowd in Lincoln’s Inn in 1606, noting that his original opinion had been that such grants were good since they could not be supposed to have been fraudulent (CUL MS Dd 5.50 f 38v at 39v); the fifth volume of Coke’s Reports, containing this case, had been published in 1605. 100 HLS 109 f 27v at f 28 (not in the brief report of the argument that term in 1 Rolle 151, 163; 81 ER 394, 402–03). It had been conceded by the Earl’s counsel from the start that if this was the proper construction of the statute then the conveyance would have been void: HLS 109 f 23, per Hyde. 101 1 Rolle 151, 163; 81 ER 394, 402–03. 102 Stat 14 Eliz c 11 s 5 (Statutes of the Realm 4 601). 103 HLS 109 f 27v at f 28, per Mountague KS. The argument had formerly been put forward strongly by Hobart A-G (1 Rolle 151, 158; HLS 109 f 25 at f 25v) and Hyde (HLS 109 f 23, CUL MS Ii 5.26 f 38v). 104 Stat 18 Eliz c 2 (Statutes of the Realm 4 608). 105 More accurately, the statute read ‘for any sum or sums of Money or other Considerations’; it was argued in the Exchequer Chamber that this had a wider meaning than the consideration

The Earl of Oxford’s Case 17 this case the college was to receive no consideration from the Queen, since her conveyance to Spinola was to take effect before the annual rent next fell due.106 Consequently the initial grant to the Queen was void. The second part of the statute validated grants made by the Queen, but it was said by Croke J that the statute served only to give effect to voidable grants, not those which were absolutely void;107 and since the 1571 act was quite clear that the grant by the college was void and this had not been cured by the first part of the 1576 act, it followed that the grant by the Queen to Spinola was also ineffective. A second possibility was that the fine levied by Rowland Broughton in 1582108 was conclusive against the college. The normal rule was that a fine was effective even against third parties after five years had elapsed from the proclamation of the fine in the Common Pleas.109 However, the court held that the 1571 statute was sufficiently broadly worded to catch fines, even those levied by third parties: it referred to grants ‘made had done or suffered’, and the non-claim constituted a ‘sufferance’.110 Were the law otherwise, it was said by Haughton J, the 1571 statute would have been a dead letter, since any college could allow a stranger to enter onto its land and levy a fine, and then sit back for five years until the transferee’s title had fully ripened. We may suspect that this may have been exactly what the college had attempted to do. Lastly, it was argued that Goche’s receipt of the rent from Hamond in 1606 precluded the college from making its claim. But there was nothing formally to suggest that he was acting with the authority of the college, and the receipt was not under seal (presumably the college’s seal111 is meant), and the court was therefore clearly of the opinion that the college was not barred by this either. Indeed, according to Dodderidge J, Haughton J had thought the point so obvious that it was not even worth arguing.112 Throughout, the reasoning of both counsel and judges is markedly formalist. Although an abundance of case law was cited, it was in effect largely an exercise in statutory interpretation; and as such it has to be said that the analysis was impeccable. Thomas Egerton, Lord Ellesmere, was that would have been sufficient to raise a use, and that the requirement was therefore satisfied since the grant from the college to the Queen had recited that it was made ‘for divers considerations ... thereunto moving’ the Master and fellows: HLS 1081 f 48v, 52v. 106 1 Rolle 151, 169; 81 ER 394, 407. In his reading on the statute in 1582, Egerton had examined the question of what constituted value: BL MS Harg 207 f 58, BL MS Harl 5265 f 136v. 107 1 Rolle 151, 170–71; 81 ER 394, 408. 108 Above, n 71. 109 Above, n 72. 110 1 Rolle 151, 171; 81 ER 394, 408–09. 111 Somewhat piquantly, this had been a gift to the college from none other than Benedict Spinola. 112 1 Rolle 151, 172; 81 ER 394, 409.

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later to observe that the court had overturned an understanding of the law which had continued for many years,113 but this fails to do justice either to the length of the arguments or to the care with which they were crafted. What is noteworthy is this very formalism. Nowhere was it ever suggested that it might have been remotely relevant that Spinola, the Earls of Oxford and their tenants had spent a great deal of money developing the land, and that the college might have been attempting to make a wholly unjustified windfall profit. The Earl of Oxford—still a minor—was no doubt understandably aggrieved by the decision. Apparently immediately he brought a writ of error to remove the case to the Exchequer Chamber.114 No less speedily, he went to Chancery, this time joining as co-plaintiff one Thomas Wood, another tenant who had been dispossessed by the college and whose land had been leased to John Smith, the bursar.115 The first entry of the case in the Chancery Decree Books is on 26 June 1615, a matter of weeks after the decision of the King’s Bench.116 The Earl’s bill has not been discovered in the Chancery records, but its gist may be reconstructed from the decree roll, checked against the report of the Earl of Oxford’s Case in the Chancery Reports and the proceedings noted in the Chancery decree books and the Masters’ report. After giving the facts at length, it picked out the following points: since the grant by the college in 1574/75, Spinola, the late Earl of Oxford and his tenants had expended a very considerable sum of money—£10,000 it was said—on the development of the land; the Earl and his tenants had given penal bonds for quiet possession to those to whom they had made leases, which bonds would be forfeit if the college was able to reclaim the property; those who had purchased leases had relied on the fact that the land had originally been granted to Spinola by the Queen’s letters patent, the strongest guarantee of a good title; and that the purpose of the grant had been to improve to the greatest extent possible the college’s financial position, a purpose which had been fulfilled:117 It being her Majesty’s Intent, That the college should be advanced greatly in Profit, by having the Rectory to them and their Successors discharged of the Lease

113

C 78/291 no 17, m 7. Noted in the margin of KB 27/1426 m 288 as having been received on 12 May 1615. There are reports of arguments in the Exchequer Chamber in HLS 1081 f 48v and HLS 2068 f 1. Coke’s report of the decision of the King’s Bench was already in print, and was expressly addressed by Serjeant Moore: HLS 1081 f 48v at ff 51, 52v. Process on the writ of error was subsequently discontinued. 115 MCC A/27/14, dated 20 December 1607. 116 C 33/128 f 1234; the entry in the decree rolls gives 9 June as the date of the petition (C 78/291 no 18). At 1 Chan Rep 1, 3; 21 ER 485, 485 it is said that the bill in Chancery was preferred before the judgment of the King’s Bench had been entered on the roll. 117 1 Chan Rep 1, 1–2; 21 ER 485, 485, the first paragraph significantly corrected by comparison with the manuscripts. The gain to the college is marked with a cross in the margin of the decree roll. 114

The Earl of Oxford’s Case 19 for Years … And that Spinola and his heirs should have only the garden paying £15 per annum being the uttermost rent … Note; the college is hereby advanced £1700 more than they should have been if the former Lease had continued, which is not yet expired.

The petition would have raised matters which the college might have wished to dispute: the amount of money spent on the development of the land, the amount at risk from penal bonds, whether the college had made any profit and, if so, how much. The defendants Goche and Smith, though, refused to answer, but instead demurred to the bill and entered a plea which in effect restated the Common Law finding that the grant of 1574/75 was void. The basis for the demurrer, again reconstructed from the decree roll, was—significantly—not that the claim had already been adjudged at Common Law, but rather that the matters raised by the petitioners were appropriate to be determined at Common Law and not in Chancery, together with a denial that the erection of a ‘colony’ of buildings could affect the Common-Law rights of the owner of the land.118 The matter was immediately referred to two of the Masters in Chancery, and in the light of their report that the demurrer was insufficient, dated the following day,119 it was ordered that the defendants should answer the substance of the petition.120 They refused to do so on the grounds that the matter was not within the jurisdiction of the Chancery, Smith saying that he was acting on the advice of Goche and Goche saying that he was acting on the advice of his counsel, and on 21 October 1615 the two men were committed to the Fleet prison for contempt.121 One can only speculate as to the conversation at dinner in Magdalene when the news arrived that the Master and Bursar had been sent to gaol. Three weeks later the Chancery turned the screw tighter, requiring an answer to have been made within one week on pain of

118 C78/291 no 18 m 3: ‘[T]he matters in the said bill contained were aptly determinable and to be determined by the common laws of this realm and not in this honourable court, neither did the same contain sufficient cause to draw into examination and question in this court matter of title and the validity and invalidity of estates derived from the said college which if they were ineffectual in law to debar the said college as of the complainants own showing they appeared to be as the defendant alleged then were not the same by colony of buildings upon any other persons loud and unjust pretence of recompense of the same things which was not warrantable by law of any sort to take away the right of the college neither were such unreasonable estates tending to the disherison of the said college and not warranted by law to be questioned in equity.’ 119 C38/22 (unfoliated). The report was based on three grounds: that the college had received full consideration for the land; that a large amount of money had been spent on the development of it; and that at the time of the original grant it was generally thought that a conveyance via the Queen would take the grant outside the statutory restrictions. 120 C 33/128 f 1259v. 121 C 33/130 f 39 (deleted), 53.

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forfeiting £200.122 Meanwhile, the two men had brought a writ of habeas corpus to the King’s Bench. The intransigence of Goche and Smith and the bringing of habeas corpus brought into focus the whole question of the relationship between Common Law and Chancery, and it is for this that the case has become a landmark in the eyes of posterity. This context will be examined in due course,123 but it was, of course, only peripherally relevant to the parties, for whom the real question was—as it always had been—whether the college could recover back the land which it had conveyed away in 1574/75. The spotlight was only briefly on the habeas corpus case.124 The King’s Bench was divided over the question whether the Chancery suit could be said to have been brought in respect of the same cause of action as the Magdalen College Case at Common Law, for the co-plaintiffs with the Earl were different in the two cases, and hence presumptively the actions were being brought for different plots of land in the Covent Garden.125 Dodderidge J was inclined to overlook this, since the reality of the situation was that both the Common-Law and Chancery claims were concerned with the underlying freehold of the Earl of Oxford. Coke CJ, however, stressed the technical point, and the court ordered that the Earl’s bill and the associated documentation in the Chancery suit be brought into the King’s Bench so that it could be verified whether or not the actions were being brought for the same matter.126 When the bill was produced the court seems to have leaned in favour of the applicants, but in the event, the Chancery backed off. On 30 November, Lord Ellesmere ordered that Goche and Smith be released from the Fleet, but should be required to give sureties that they would attend the Chancery every day until given leave to depart.127 Their attendance in the Chancery was duly noted every sitting day of the court in Hilary Term 1616, at the end of which their sureties were released, though Goche and Smith were again required to attend day to day in the Easter Term.128 After two weeks of formal attendance, it seems that argument in the case was heard on 2 May.129 Again, Lord Ellesmere LC demonstrated a marked 122 C 33/129 f 134v. It is to this point that the reported Earl of Oxford’s Case probably belongs: below n 170. 123 Below, 27–32. 124 For the growth of habeas corpus at this time, see P Halliday, Habeas Corpus (Cambridge, Mass, Belknap, 2010). 125 Googe and Smith’s Case (1615) 1 Rolle 277, 81 ER 487; 3 Bulst 115, 81 ER 98; HLS 109 f 102v. 126 It is worthy of note that Coke was generally unsympathetic to habeas corpus actions aiming to overrule Chancery orders to imprison: Halliday (n 124) 91. 127 C 33/130 f 232v, noted at 1 Rolle 277, 278; 81 ER 487, 487. 128 C 33/130 f 462. 129 C 33/129 f 728. The first half of the entry is deleted (and marked as vacated), but the continuation at f 728v is not; the parallel entry in C 33/130 f 620 says merely that the defendants appeared. Though it may not have been relevant as part of the legal record, there is no good reason to reject the factual accuracy of the deleted entry.

The Earl of Oxford’s Case 21 reluctance to rush to judgment. The bill contained ‘divers matters of great equity … meet to be received in this court’,130 and nothing in it brought into question the proceedings in the Court of Wards or in the King’s Bench. The implication of this was that the defendants’ demurrer was not wellfounded, and Ellesmere said that he would proceed to give judgment to that effect in one week’s time unless Goche had by then waived the demurrer and answered to the bill. Ellesmere’s judgment was given on 6 May 1616.131 Right to the end he was urging the defendants to waive their demurrer and answer the points made in the petition, but Goche refused to do so despite the advice of his counsel that he should. Instead he insisted on the finality of the judgment at Common Law, making reference to the Statutes of Praemunire132 and referring to a recent case in Chancery on the application of the 1571 statute. Goche, a Doctor of Laws, was by this time making the arguments himself— his counsel is recorded as having agreed that the arguments were irrelevant and having said that he had tried to convince Goche of this—but Ellesmere none the less dealt with them carefully. Judgment was therefore decreed for the plaintiffs, the defendants having been taken to have confessed by their demurrer all the facts alleged in the petition, and an injunction was issued that the Earl and his tenants have quiet enjoyment of the lands and that all suits at Common Law be stayed. This, one might have thought, would be the end of the matter, but Goche did not give up. Towards the end of 1616 the case took another turn. At Michaelmas, one Thomas Mosse, no doubt acting as the Earl’s representative, arrived with witnesses at Magdalene to tender the £15 annual rent and the arrears which had accrued over the previous nine years. They said that they had waited in the college hall from 3.00 in the afternoon until sunset, but nobody from the college would come to accept the money from them. A further petition was brought, this time requiring the college to accept the rent, and on the college’s refusal to do so it was ordered that the money be paid into court and that depositions be taken from witnesses to the tender which could be used in any future proceedings, protecting the Earl from the risk that the witnesses might have died in the meantime.133 Still Goche remained intransigent, refusing to accept the rent as it fell due, and thereby creating the impression that the Earl’s title was not secure so that he could not deal with it freely. In 1619 he petitioned the King for confirmation of the decree of 1616.134 James referred the matter to Francis Bacon, now

130

C 33/129 f 728 (deleted). C 78/291 no 17. Curiously, the decree book makes no mention of this, noting simply the defendants’ routine appearance: C 33/130 f 626. 132 Below, text at n 186. 133 C 33/132 ff 342v, 600v. 134 Details from C 78/291 no 17. 131

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Lord Chancellor, the two Chief Justices, Montagu of the King’s Bench and Hobart of the Common Pleas, and the Chief Baron, Tanfield, requiring them to certify their opinions in the matter.135 The case was yet again argued by counsel, though unfortunately no report of this has been discovered. It was only now, after more than 10 years in the courts, that the substance of the Earl’s case was subjected to judicial consideration. The basis of his position, as expressed in the original Chancery petition, was in effect that the college should be estopped from reclaiming the land, at least without paying compensation for the improvements:136 those holding it had spent a good deal of money on the improvements and had put far more at risk through the giving of penal bonds, all of which they had done in good faith and in the apparently reasonable belief that the Queen’s letters patent had given an irrefrangible title; and the college had in no sense been cheated by the transaction or even taken advantage of, but on the contrary had made a considerable profit out of it. The Lord Chancellor, Chief Justices and Chief Baron largely accepted this. Whatever the true interpretation of the statute of 1576, ever since it had been enacted the view of lawyers had been that grants made by letters patent were good in law; as a consequence, very large sums of money had been expended by individuals in the belief that their estates were good, and no fault could be imputed to them for having been mistaken in this belief. In sum, it was not appropriate to dispossess bona fide purchasers who had remained in possession for many decades.137 On receipt of this certification, the King instructed Lord Chancellor Bacon to affirm Ellesmere’s earlier decree, saying that it was properly part of the King’s function ‘to take care and provide that the rigour of the law might be so tempered with equity as that his majesty’s subiects might not by colour of law be pressed with any hard and avoidable extremities.’138 John Manningham, still counsel for Goche and the college, argued that in refusing the rent they were not in any way impugning Ellesmere’s decree, but Bacon rejected this since the refusal could not be interpreted in any other way than as implying that they still had a claim over the land.139 In the light of this, a final decree was made requiring the college to accept the rent as it fell due and give acquittance under

135 Montagu and Hobart had argued the Earl’s case as counsel, but it would be wrong to conclude from that that they must have been biased in favour of him when sitting in a judicial capacity. 136 It is clear from the college’s demurrer (above, n 118) that the Earl would have been satisfied with this. The situation would therefore have been exactly the same as in Roman law if a vindicatio had been brought and the defendant raised an exceptio doli. 137 Summarised in C 78/291 no 17. 138 Ibid, m 8. 139 C 33/314 f 921v.

The Earl of Oxford’s Case 23 seal for it and ordering that no further litigation over the original decree be permitted.140 An injunction to this effect was served on the college.141 Goche then turned to Parliament, having been elected as MP for Cambridge University in 1621.142 He first attempted to proceed by way of petition, but it was resolved that he should instead proceed by bill.143 Although as yet the only issue was whether Goche should be allowed to speak since the matter might have been thought to be his own cause, Sir Edward Coke’s recorded remarks show that the point of substance might still have been a matter in dispute:144 It is a great grievance that the parliament shall say, be it enacted that all such Leases shall be void, and the Chancellor, be it decreed that it shall be good; for it was done in Magdalen College Case, whereof Gouch spoke. The writ of error after that one judge had argued for the judgment was discontinued. The chancellor that made the decree held a lease from a college upon the same title. This particular involves a general; it toucheth every man in his inheritance.

The bill to avoid the Chancery decree against the college was duly presented, justified on the grounds that the Chancery should not decide matters of inheritance,145 but lack of time meant that it was not fully debated or enacted. Re-elected to the 1624 Parliament, Goche again introduced a bill to overturn the decree, at the same time as the Earl of Oxford introduced a bill into the House of Lords to confirm it.146 Although Oxford’s bill made better progress, both bills stalled in committee and neither was enacted. This, finally, put an end to the matter, at least for a while: on several occasions since the college has investigated the re-opening of the question.147

D. THE ISSUES IN THE LITIGATION

It is impossible to capture in any simple way what this complex of litigation was ‘really’ about. For Goche and the college, no doubt, it was seen as a

140 141 142

C 78/291 no 17, m 8. MCC A/27/16. Thrush and Ferris (n 76) 408. He had unsuccessfully stood for election in 1614: ibid,

407. 143 W Notestein et al, Commons Debates 1621 (New Haven, Conn, Yale University Press, 1935) vol 3, 158; vol 4, 299; vol 5, 139, 366. For procedure by petition, appropriate to the redress of a private grievance, see Coke, Fourth Institute, 10–11. The 1621 parliamentary proceedings are concisely described in Thrush and Ferris (n 76), 408. 144 Notestein et al (n 143) vol 5, 139. For all his rhetoric, it is noteworthy that in 1613 Coke himself had intended to buy the lease of the manor of Cressingham, Norfolk, which had been conveyed to the Queen by the Dean and Chapter of Norwich: JP Collier (ed), The Egerton Papers (London, Camden Society, 1840) 462; I owe this reference to Dr Steven Churches. 145 Notestein et al (n 143) vol 3, 197; noted also vol 2, 353; vol 4, 317. 146 For the 1624 proceedings, Thrush and Ferris (n 76) 412. 147 Cunich et al (n 19) 82–83.

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matter of attempting to recover valuable land out of which they believed that they had been in some sense cheated in the 1570s. For the Earl of Oxford, no doubt, it was seen as a matter of retaining valuable land which he had always thought to be his, and where he was at risk of losing many thousands of pounds if his tenants were evicted from property which they had developed at considerable expense and in the belief that their rights were well-grounded. Both sides surely thought they were right, both were willing to exploit the potentials of the English legal and political system to press their own claims, and probably both were frustrated by the ability and willingness of the other side to do so. For the historian, the most important feature is the jurisdictional plurality which characterised the early-modern legal system: the dispute was located in turn before the Court of Wards, the King’s Bench, the Exchequer Chamber, the Chancery, the Chief Justices and Chief Baron acting on commission from the King, and finally in Parliament. In such a world, finality was a goal which could hardly be achieved where both parties were tenacious and determined to succeed. As well, we cannot help pausing in an attempt to understand how Parliament in 1571 might have legislated to outlaw transactions whereby colleges parted with their lands for lengthy terms of years or in perpetuity, only for the Queen to be used as an instrument to avoid the statute, with Parliament then unable effectively to deal with the problems created thereby. For the lawyers, the issue at the heart of the dispute was the inviolability of Common-Law property rights. This was the basis of Goche’s and Smith’s demurrer in the Chancery—that the determination of property rights was a matter purely for the Common Law and not for the emergent equity of the Court of Chancery—and it lay behind Goche’s bill in the 1621 Parliament, that the Chancery should not meddle in matters of inheritance.148 This whole issue of the inviolability of property rights was a dominant theme in the political discourse of the reign of James I, intimately connected with arguments about the protection of individual liberty.149 Its principal focus was the legitimacy or illegitimacy of extra-parliamentary taxation. It had been held by the Court of Exchequer in Bates’ Case in 1606150 that the King had a general power to levy taxes—in this case a levy on the importation of currants—for the public good. This decision, and the way in which it was being implemented, was a matter for sustained criticism in the Parliament of 1610: taxation at the will of the King was tantamount to the taking of

148

Above, n 118, n 145. JP Sommerville, Politics and Ideology in England, 1603–1640 (London, Longman, 1986) 145–63. 150 Bates’ Case (1606) Lane 22, 145 ER 267. 149

The Earl of Oxford’s Case 25 property without consent, something which was improper.151 For William Hakewill, certainty was the hallmark of the Common Law;152 the Common Law could be seen as the guarantor of the stability of property rights. Similar concerns lay behind the discussion of the Irish custom of tanistry, according to which land descended not according to some predetermined and certain rule, but to the kinsman who was deemed the most worthy. A statute of 1570153 had made it possible for the current tanist to convert his interest into a Common Law estate by surrender to the Crown and regrant, but tanistry had not itself been abolished. In the early seventeenth century a move was made to do this, led by Sir John Davies, the Attorney-General in Ireland.154 One aspect of this attack on tanistry was the argument that it was a custom which should not be admitted as valid by the Common Law. It did not satisfy the basic minimal criterion of reasonableness, argued Davies in the Irish King’s Bench.155 If the line of descent was not certain, the occupant for the time being would have no incentive to develop or improve the land; it encouraged crime, since men could have no confidence that their wives or children would be provided for after their death; and it went against the maxim of the Common Law that there could be no abeyance of the freehold. In sum, ‘A commonwealth cannot survive without certain ownership of land.’156 The Case of Tanistry might not at first have been familiar to lawyers in England, but the publication of Davies’s report of it in 1615, in a volume dedicated to Ellesmere, would have ensured its entry into the legal consciousness. That established property rights should be afforded strong protection by the law is no doubt something on which Magdalene and the Earl of Oxford would have agreed. The difference between them was that the college was arguing that property rights were to be identified solely by reference to the Common Law, whereas the Earl was placing greater weight on the fact that he and his tenants had been in occupation of the land for several decades and had in good faith spent a great deal of money in the development of it. This was the truly contested territory in the case, and the decision in favour of the Earl reflected two important points. First was that Common Law

151 See, eg, the speech of Thomas Hedley in the debate over impositions in 1610: ER Foster (ed), Proceedings in Parliament 1610 (New Haven, Conn, Yale University Press, 1966) 188–89; Sommerville (n 149) 153–54. 152 W Hakewill The Libertie of the Subject: Against the Pretended Power of Impositions. Maintained by an Argument in Parliament Anno 7o Jacobi Regis (London, 1641) 10: ‘That the Common-Law of England (as also all other wise Laws in the World) delight in certainty, and abandon incertainty, as the mother of all debate and confusion, than which nothing is more odious in Law.’ 153 Stat 12 Eliz c 4. 154 HS Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge, CUP, 1985) 55–81. 155 Case of Tanistry (1608) Dav 28, 80 ER 516. 156 Ibid, 33–34; 522–23.

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did not have a monopoly over the determination of rights of real property, second that—in modern terms—the Court of Chancery had the power to manipulate property rights based on the working of what we would see as a broad principle of estoppel. With hindsight, the first of these looks as if it could hardly have been controversial, and the speed with which the Masters in Chancery reported that Goche’s demurrer was ill-founded157 suggests that this is how they saw the matter too. However, it might not have been quite so clear-cut at the time. Sixteenth-century Chancellors had rather vacillated over the question of the extent to which they could or should interfere with property, commonly preferring to do so indirectly rather than directly,158 and what we think of today as Chancery’s property institutions were not yet established. Since 1536 the Statute of Uses had operated to convert most uses into legal estates, except where the feoffees had active duties to perform.159 The passive trust, based on the use upon a use, was only just beginning to emerge, and the uncertainty which it introduced was a matter for criticism by Common Lawyers;160 it was not until the time of Lord Nottingham later in the seventeenth century that it was to be truly established, and even then it was arguable that the beneficiary’s interest was a purely personal right.161 The equity of redemption was still in the process of gestation;162 and equitable rights such as restrictive covenants were still centuries away. While for the modern lawyer the proprietary consequences of equitable rights are absolutely fundamental (though no longer centred on interests in real property), matters could have turned out very differently indeed. It is no exaggeration to say that had the Earl of Oxford’s Case upheld Goche’s demurrer, the subsequent history of the English law of property could have been unrecognisably different. The second point, the operation of a broad principle of estoppel, is more technical. The Chancery decree roll shows that an idea of this sort was the basis of the Chancery judgment: Spinola, the Earl of Oxford and their tenants had expended very considerable sums on buildings; they had acted in 157

A single day: above, n 119. E Henderson, ‘Legal Rights to Land in the Early Chancery’ (1982) 26 American Journal of Legal History 97. 159 Such active uses did not compromise the dominance of the Common Law, since they were not concerned with the whereabouts of what we would today regard as beneficial ownership, only with how the undoubted holders of the fee simple should exercise their property rights. 160 NG Jones, ‘Trusts in England after the Statute of Uses: A View from the 16th Century’ in R Helmholz and R Zimmermann (eds), Itinera Fiduciae (Berlin, Duncker & Humblot, 1998) 173. Baker (n 92) 309. See in particular the Reading of Henry Sherfield on the Statute of Wills (Lincoln’s Inn, 1623), in JH Baker and SFC Milsom, Sources of English Legal History (2nd edn by Sir John Baker, Oxford, OUP, 2010) 149. 161 M Macnair, ‘The Conceptual Basis of Trusts in the Later 17th and Early 18th Centuries’ in Helmholz and Zimmermann (eds) (n 160) 207. 162 GJ Turner, The Equity of Redemption (Cambridge, CUP, 1931) 27–28, 37–38. 158

The Earl of Oxford’s Case 27 good faith throughout, and in the reasonable belief that they had good title; the college had not been overreached but had itself made a considerable profit.163 The last of these points may have been particularly important, for it is marked with a cross in the margin of the decree roll. Estoppels had long been recognised as a matter of Common Law, but only where there had been a positive act or representation by the person estopped.164 Here there had been no such positive conduct, and it was presumably for this reason that the issue was not raised in the Common Law proceedings in the Magdalen College Case. Indeed, the word ‘estoppel’ was nowhere used in the Chancery proceedings in the Earl of Oxford’s Case, and the printed report of the case focuses on the issue of the relationship between Chancery and the Common Law courts rather than the substantive ground of the decree in Equity. Equitable estoppel, as a basis of proprietary claims, hardly existed in the eighteenth century—the section devoted to it in Viner’s Abridgment165 is exiguous, for example—and it was not until the middle of the nineteenth century that this aspect of the Earl of Oxford’s Case was to be resurrected, as one of the foundational authorities for the formulation of the idea of estoppel by acquiescence in Ramsden v Dyson.166 But this could not be expressed as the formal basis of the decision in the Earl of Oxford’s Case, for as yet the conceptual vocabulary was not there to do so.

E. ‘THE EARL OF OXFORD’S CASE’

The heading of the Earl of Oxford’s Case167 in the Chancery Reports reads: ‘The Earl of Oxford’s Case in Chancery. With the Lord Chancellor’s Arguments, touching the Jurisdiction of the said Court. Mich. 13 Jac. I.’ The most noteworthy thing about this is the date, Michaelmas Term 1615, for the Chancery record has no trace of any judgment being given in the case in that term. It was, it is true, a busy term, with the Chancery much concerned with the contumacy of Goche and Smith;168 but the first

163

C 78/291 no 18. See, eg, J Rastell, Exposition of Certaine Difficult and Obscure Words, and Termes of the Lawes of this Realme (Assignee of Charles Yetsweirt, decd, 1595), f 84 and Co Litt 352, both of which are expressed in terms of a person being estopped by his own acts or writings. 165 Viner, Abridgement, Estoppel, F (a). 166 Ramsden v Dyson (1866) LR 1 HL 129, 134. On this case, see the essay by N Piška in ch 9 of this volume. 167 (1615) 1 Chan Rep 1, 21 ER 485. I have compared the printed text to a selection of manuscript versions (CUL MS Gg 2.31 f 211v, CUL MS Mm 1.43 p 466, BL MS Harl 1767 f 29v, BL MS Harl 4265 f 67, BL MS Harg 227 f 279v, BL MS Harg 249 f 148v, BL MS Harg 269 f 25v, BL MS Lansd 613 f 31v, BL MS Stowe 296 f 65). All are substantially similar; points where the manuscripts vary from the printed text in some significant way are noted where appropriate. 168 C 33/130 ff 39, 53, 235, 232v. 164

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substantive decree in the case was on 6 May 1616, approximately six months later.169 The date therefore gives the context for the report: it is concerned solely with the propriety of imprisoning the defendants for their contempt in refusing to answer the Earl’s bill.170 The way in which this issue is formulated reflects contemporary concerns. It need not have done so: Goche and Smith might have argued that it was their right to demur to the Earl’s petition, taking the risk that the demurrer would be decided against them, and that consequently the Chancellor’s requirement that they waive their demurrer and answer the petition was illegal. However, in 1615 the whole question whether the Chancery had a power to require a successful party to release a judgment at Common Law and to commit him to prison when he refused to do so was very much centre-stage. Matters had come to a head in Trinity Term, in Glanvill’s Case.171 Contrary to Ellesmere’s insistence on the legitimacy of doing so, Coke had led the Common Law judges to the opposite conclusion and had ordered Glanvill’s release on habeas corpus. At the legal heart of Glanvill’s Case, and of Apsley and Ruswell’s Case172 at the same time, was whether a return to habeas corpus that the applicant was imprisoned by the order of the Chancery was good in itself, or whether the cause for which the imprisonment had been ordered had to be shown so that the King’s Bench could evaluate its sufficiency. Ellesmere’s reasoning suggests that Goche and Smith were trying to place themselves within the Common-Law principle of Glanvill’s Case, and his careful analysis looks to be directed at taking the case outside it. The first point established by Ellesmere was that the Earl had a good claim in Equity or conscience.173 In the absence of any answer by the defendants, it was said to be legitimate for the court to proceed on the basis of the facts alleged in the bill: Gorringe v Taylor.174 This settled, the position in Equity could be considered on its merits. Here the Earl and his tenants had expended very considerable sums of money on the development of the land, and it was not conscionable for the defendants to insist on their strict legal rights without compensating the plaintiffs. Chancery

169

Above, text at n 131. Above, text at n 124. 171 Glanvill’s Case 1 Rolle 111, 81 ER 365; 2 Bulst 301, 80 ER 1139; Moo 838, 72 ER 939; Cro Jac 343, 79 ER 294. This paragraph largely summarises JH Baker, ‘The Common Lawyers and the Chancery: 1616’ (1969) 4 Irish Jurist 368, 374–76. 172 Apsley and Ruswell’s Case 1 Rolle 192, 81 ER 424; 1 Rolle 218, 81 ER 443. 173 1 Chan Rep 1, 1–7; 21 ER 485, 485–86. For the role of conscience at this time, see D Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (Aldershot, Ashgate, 2010) esp at 157–58. 174 Gorringe v Taylor (1596) C 33/91 f 424; 117 SS 210 no 235, 224 no 332 (not on this point). The reference to the case is omitted from the printed version. 170

The Earl of Oxford’s Case 29 authority was cited for this too: Peterson v Parrys and Hickman.175 In that case land had been held by a husband and wife jointly; the husband made a lease, the lessee expended considerable sums in developing the land, and after the husband’s death the wife initiated an action of ejectment to recover the land from the lessee. The Chancery refused to order a staying of the Common-Law action, but only on the basis that the lessee would be compensated in full for the value of the improvements. The situation in the Earl of Oxford’s Case was exactly the same, said Lord Ellesmere: ‘The Plaintiff in this Case only desires to be satisfied of the true Value of the new Building and Planting since the Conveyance, and convenient Allowance for the Purchase.’176 This was sufficient to set down an independent basis for the Chancery action. It should be noted that there is here a mismatch between the report of the case and the Chancery record. The report gives the reasons why the Earl’s claim should succeed, but the record shows emphatically that this was not decided in Michaelmas Term 1615 but continued to be at issue until May 1616. We might strongly suspect that the report of the case does not represent Ellesmere’s actual decision in 1615 but is a formalised version of his argument prepared for independent circulation. However, since it is this argument which is being examined, we may gloss over this mismatch. Ellesmere’s reasoning to justify the intervention was subtle. The first limb was to show that Chancery might legitimately intervene after a judgment at law, provided that the grounds of the judgment were not themselves questioned.177 Hence it was possible to have recourse to Chancery where an action was brought at Common Law to enforce a bond, where it was asserted that the money due under the bond had already been paid (this not being a defence at Common Law). At this point (at the bottom of page 8 of the printed report) there is a small but important linguistic shift: instead of speaking of the intervention of Chancery, he moves to referring to the intervention of Equity after judgment at Common Law. The first example of this, relief against penal bonds, was indeed a case of Chancery involvement; but immediately thereafter the focus shifts to Common-Law intervention by the writ of audita querela, a remedy available to reverse the effect of a judgment at law on the basis of material extraneous to the initial claim,178 described by Ellesmere as a ‘Latin Bill in Equity’. Hence, there was room for Equity to neutralise the effect of Common-Law judgments, both through the Court of Chancery and in the Common Law courts themselves.

175 Peterson v Parrys and Hickman (1597) C 33/93 f 125; 117 SS 263 no 248 (not on this point). 176 1 Chan Rep 1, 6; 21 ER 485, 486. 177 1 Chan Rep 1, 7–11; 21 ER 485, 486–87. The words ‘And for the Judgment’, marking the beginning of the section, form a header in the manuscripts. 178 TFT Plucknett, Legislation of Edward I (Oxford, OUP, 1949) 145–46.

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Where the enforcement of the judgment was unconscionable, it was for the Chancellor to frustrate it by operating on the conscience of the party; and ‘in such cases the Judges also play the Chancellors’.179 The boldness, and importance, of the linguistic shift from ‘Chancery’ to ‘Equity’ becomes clear at this point: if Equity in truth fell within the jurisdiction of the Common Law judges then the objection to the Chancellor’s intervening collapsed from being a point of high constitutional principle into a relatively insignificant squabble about which court had jurisdiction. The second limb of Ellesmere’s argument, dealing with the question whether judgments based on statutes were subject to different rules,180 similarly built on the use of Equity by Common Lawyers. Coke himself had reported Doctor Bonham’s Case,181 in which it had been said that the equitable underpinning of statutes was open to examination. More generally, the judges regularly construed statutes according to the ‘equity’ of them, interpreting them more widely where this was desirable in the public interest.182 ‘Equity’ in the latter context meant something very different from ‘fairness’, but Ellesmere glossed over this: the use of the same word served to knit the two ideas together. And just as the Common Lawyers used ideas of Equity to interpret or disapply statutes, so too should the Court of Chancery do so. In these two parts of his argument, Ellesmere had united together the two principal approaches to Equity which are found in the late sixteenth and early seventeenth centuries. On the one hand, it was something which underpinned the law; as he described it, it was something applied by both the Chancery and the Courts of Common Law. On the other, it existed outside the Common Law, functioning to correct its excessive rigour. A decade or so before the Earl of Oxford’s Case, Edward Hake had made a similar point,183 though he went on to differentiate between the Equity of the Common Law and the Equity of the Chancery, whereas Ellesmere was concerned to downplay these differences. In doing so Ellesmere was able to demonstrate that the Common Lawyers and the Chancery were doing

179 1 Chan Rep 1, 10–11; 21 ER 485, 487. The final part of this section of Ellesmere’s arguments appears rather differently ordered in the manuscripts, but is the same in substance as the print. 180 1 Chan Rep 1, 11–14; 21 ER 485, 487–88. In the manuscripts the opening words, ‘This is a Judgment upon a Statute-Law’ form the header of the section. 181 Doctor Bonham’s Case (1610) 8 Co Rep 113, 77 ER 646. See IS Williams, ‘Dr Bonham’s Case and “Void” Statutes’ (2006) 27 Journal of Legal History 111, with further references. 182 SE Thorne, ‘The Equity of a Statute and Heydon’s Case’ (1936) 31 Illinois Law Review 202; S Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent (Tubingen, Mohr Siebeck 2001) 685–91. 183 DEC Yale (ed), Epieikeia: A Dialogue on Equity in Three Parts (New Haven, Conn, Yale University Press, 1953). For the various forms of the idea of equity in the sixteenth century, see M Fortier, The Culture of Equity in Early Modern England (Aldershot, Ashgate, 2005) 59–76.

The Earl of Oxford’s Case 31 the same thing: giving effect to the moral ideas underpinning the law and mitigating the effects of a too rigid application of the Common Law. This led on to the third limb of the argument in the Earl of Oxford’s Case, whether there was anything in English law which precluded the Chancery from acting in this way.184 This final section of Ellesmere’s reasoning is markedly less polished than the first two sections; it is noteworthy that the manuscripts tend to peter out towards the end, reflecting this relative scrappiness. It is not difficult to surmise why he appears to have taken less care over the argument here: by the Michaelmas Term of 1615 he had already dealt with the point at issue at some length in his A Breviate or Discourse for the Kinges learned Councell, which is dated in the September of that year.185 The question was whether there was any statute that prevented the Chancery from acting contrary to an antecedent judgment at Common Law. In particular, it was by this time being argued principally that the Statutes of Praemunire of 1353 and 1402, which prohibited the bringing into question of decisions of the King’s courts and imposed criminal penalties for doing so, were broad enough to apply to the bringing of Chancery suits after a Common-Law judgment.186 This had been the judges’ main reason for denying the power of Chancery in Finch v Throckmorton in 1597,187 and Coke was to suggest in Googe and Smith’s Case188 that this was correct and that the statutes did apply to the Chancery. Ellesmere, in his Breviate and more sketchily in the Earl of Oxford’s Case, argued— probably correctly, as a matter of history—that they did not do so but were concerned with references to the papal courts after judgment had been given in England. Whether they should be applied was ultimately a political question, which was to be decided by the King in favour of the Chancery in his Star Chamber speech in 1616.189 It has already been argued that the characterisation of the Earl of Oxford’s Case as a leading case in Equity is somewhat misleading, a consequence of the concentration on Ellesmere’s reported speech rather than on the substance of the case, though if the substantial point in issue had been reported, no doubt it would have become a leading case on the question of estoppel by silence. The characterisation, though, is misleading in another

184 1 Chan Rep 1, 14–end; 21 ER 485, 488–89. The opening words, ‘The Law of the Land speaks not against this’, are marked as a header in the manuscripts. 185 Edited in LA Knafla, Law and Politics in Jacobean England (Cambridge, CUP, 1977) 319. 186 Stat 27 Edw III stat 1, c 1 (Statutes of the Realm 1 329); Stat 4 Hen IV c 23 (Statutes of the Realm 2 142). Coke, Third Institute, 119–27. 187 Finch v Throckmorton BL MS Harl 6686 f 222v; the section of the report dealing with this point is heavily annotated by Coke. 188 Googe and Smith’s Case (1615) 1 Rolle 277, 81 ER 487; 3 Bulst 115, 81 ER 98. 189 Above, n 11.

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way, too, the consequence of the English lawyer’s near monofocal obsession with case law. ‘The Earl of Oxford’s Case’, as reported, gave only one side of a highly disputed question—the other side might be thought to have been given in the unreported decision in Finch v Throckmorton190—and in no sense decided the issue. The credit for that lies outside the cases, the courts and the law; it was a product of politics and the exercise of the King’s will. But in a world in which historians’ sense of constitutional propriety was shaped by the deposition of a King and the dual authority of the legislature and the courts, there was little room for this to hold its place as the legal basis of the relationship between the Chancery and the Courts of Common Law.

190

Above, n 187.

2 Coke v Fountaine (1676) MIKE MACNAIR

A. INTRODUCTION

C

OKE V FOUNTAINE is an odd sort of landmark—perhaps one which was initially missed. Lord Nottingham’s decision has been frequently cited in modern times on the classification of trusts, and on the nature and limits of equity. It was heard by Lord Nottingham together with the two Chief Justices, which would prima facie imply that the case would be a leading one. Other aspects of the litigation were reported and subsequently cited. But this particular stage of a litigation which ran between 1672 and 1690 was not printed, and not cited from manuscript; it was only in the nineteenth century that it began to be cited. In this chapter I examine the reception of the case, its background and the nature of Lord Nottingham’s reasoning. I suggest that the reason for the original non-reporting of the decision is that it appeared to be merely one on the facts.

B. THE LANDMARK

The landmark is the judgment of Lord Nottingham, given at a hearing in May 1676 before himself, North CJ and Rainsford CJ.1 Though the plaintiff had made more general claims in the original bill, the judgments discuss specifically claims to two leases, and a rentcharge of £1,000 pa, which the plaintiff at this stage claimed were either in trust, or granted by way of security. The Chief Justices advised and Lord Nottingham decided that the leases were in trust to attend the inheritance, but the rentcharge was a gift to the defendant by the grantor.

1 DEC Yale (ed), Lord Nottingham’s Chancery Cases, 2 vols (London, Bernard Quaritch for the Selden Society) vol 73 (1957) and vol 79 (1961), cited hereafter as 73 and 79 SS; 73 SS 362, 3 Swanst 585, 36 ER 984.

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In the course of giving judgment Lord Nottingham made some very general statements, both about trusts and about the nature of equity, which became in modern times landmark statements. In particular:2 All trusts are either, first, express trusts, which are raised and created by act of the parties, or implied trusts, which are raised or created by act or construction of law; again, express trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts; and that is, when the Court, upon consideration of all circumstances presumes there was a declaration, either by word or writing, though the plain and direct proof thereof be not extant.… There is one good, general, and infallible rule that goes to both these kinds of trusts; it is such a general rule as never deceives; a general rule to which there is no exception, and that is this; the law never implies, the Court never presumes a trust, but in case of absolute necessity. The reason of this rule is sacred; for if the Chancery do once take liberty to construe a trust by implication of law, or to presume a trust, unnecessarily, a way is opened to the Lord Chancellor to construe or presume any man in England out of his estate; and so at last every case in court will become casus pro amico.

And, after reviewing the evidence and circumstances,3 If after all this a man will still suppose that there was a secret trust, security, or agreement between the parties to re-purchase this rent, which no bill charges, no proof can make out, and the defendant denies upon oath, then it must be such a trust, security, or agreement as is only between a man and his confessor. With such a conscience as is only naturalis et interna this Court has nothing to do; the conscience by which I am to proceed is merely civilis et politica and tied to certain measures; and it is infinitely better for the public that a trust, security, or agreement, which is wholly secret, should miscarry, than that men should lose their estates by the mere fancy and imagination of a chancellor. The rule of nullus recedat a cancellaria sine remedio, was never meant of English proceedings, but only of original writs, when the case would bear one; and so the Chancellor in 5 Hen 7, understood it, for otherwise says he, no man need to be confessed.

In modern equity textbooks these passages are used for two purposes. The first is the use of the first paragraph of the first passage quoted, as introducing the classification of trusts into express or implied trusts. The second is the use of the second passage in ‘history sections’ as representing a historical moment at which Chancellors rejected earlier conceptions of equity and

2 3

73 SS 365, 3 Swanst 591–92, 36 ER 987. 73 SS 371, 3 Swanst 600–01, 36 ER 990.

Coke v Fountaine 35 conscience which were more linked to the forum internum.4 The latter use is shared by historical works.5

C. ITS RECEPTION

What is remarkable about this landmark is that it was not observed until so much later. This was a hearing before the Lord Chancellor and two of the three Chief Justices, with very striking general statements from Lord Nottingham—the sort of case which commonly was reported and later cited. There were reporters active in Chancery at this time—Freeman, and the reporters whose work was printed in 3 Reports in Chancery and 1 and 2 Cases in Chancery. Other aspects of the litigation were reported. Yet, apart from Lord Nottingham’s own report, this judgment went unreported. Neither was it cited from manuscript reports, or from the records, in the printed reports and treatises in the ensuing century and a half. It was only when Swanston printed Lord Nottingham’s report in 1827 in his own reports of cases in Chancery that it began to be cited. The immediate background is that in Crowley’s Case,6 Lord Eldon was pressed with an argument from Jenks’ Case (1676) as to the jurisdiction of the Court of Chancery to grant habeas corpus in vacation. Lord Eldon then cited Jenks’ case from Lord Nottingham’s manuscript. At some date between the completion of Swanston’s first volume in 1820 and the publication of the second in 1822, Lord Eldon gave Swanston a copy of Lord Nottingham’s manuscript, and Swanston thereafter included cases from Lord Nottingham in the notes.7 The larger context is therefore a particular authority conferred on Lord Nottingham’s views by Lord Eldon.

4 Eg HM Hanbury and J Martin, Modern Equity, 17th edn (London, Sweet & Maxwell, 2005) 13 (classification of trusts), 95 (against implying trusts from precatory words); AJ Oakley (ed), Parker & Mellows, The Modern Law of Trusts, 8th edn (London, Sweet & Maxwell, 2005) 37 (classification of trusts); EH Burn and GJ Virgo, Maudsley & Burn’s Trusts and Trustees: Cases and Materials, 6th edn (London, Butterworth, 2002) 57 (classification of trusts); A Hudson, Equity and Trusts, 6th edn (Abingdon, Routledge, 2010) 35, 36 (conscience). 5 Eg JH Baker, An Introduction to English Legal History, 4th edn (London, Butterworth, 2002) 110. DR Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (Farnham, Ashgate, 2010) ch 8, attempts to contextualise Lord Nottingham’s statements about conscience in relation to contemporary casuistry and Nottingham’s practice in other cases, and properly plays down (as Spence did, below n 9) the extent to which they represented a watershed. In ‘Equity and Conscience’ (2007) 27 OJLS 659, 680, I represent the case as displaying the end of an older concept of ‘conscience’ which could be separated from moral reasoning and given operative legal effects. 6 Crowley’s Case (1818) 2 Swanst 1, 36 ER 514. 7 Ibid, 5–10, 516–18 (counsel); 11ff, 518ff (Lord Eldon); 83, 539 (Swanston’s note of Lord Eldon’s giving him the manuscript copy). Jenks’ case is reported as Jenkes’ Case 6 St Tr 1189, but as Francis Jenks in Lord Nottingham’s reports, 73 SS 423, 425.

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Thereafter, attempts were made in court to use Lord Nottingham’s argument that implied or presumptive trusts should only be imposed in cases of ‘absolute necessity’, but these attempts had no success.8 The case was more popular with the treatise writers: the first passage was used, as it still is, as a reference point on the classification of trusts,9 and the second was used, as it still is, to distinguish equity from private conscience and rebut Selden’s ‘chancellor’s foot’ tag.10 It was also used (by way of Lord Nottingham’s citation of Pitt v Pelham) as authority that a disposition with a direction to pay debts amounted to a trust for payment of debts,11 for the proposition that parol evidence is admissible to rebut the presumption of

8 Mayer v Townsend (1841) 3 Beav 443, 445; 49 ER 174, 175 (counsel for defendant; rejected); Mayor Aldermen and Burgesses of Gloucester v Wood (1843) 3 Hare 131, 135; 67 ER 326, 328 (counsel for plaintiffs) 142, 330 (Wigram VC; distinguished); on appeal, Corporation of Gloucester v Osborn (1846–7) 1 HLC 272, 278; 9 ER 760, 763 (counsel for plaintiffs; the appeal was dismissed, the Law Lords not finding it necessary to refer to the point); Briggs v Penny (1851) 3 Mac & G 546, 553; 42 ER 371, 374 (cited by counsel for defendants; decree for plaintiff); Clark v Browne (1854) 2 Sm & Giff 524, 528; 65 ER 510, 513 (counsel for plaintiff; rejected); Muggeridge v Stanton (1859) 1 De G, F & J 107, 116; 45 ER 300, 303 (counsel for defendant; rejected). In R v Fletcher (1862) Le & Ca 180, 169 ER 1353, counsel for the Crown used Lord Nottingham’s statement on the classification of trusts in argument at 198, 1363, but this use appears to be merely introductory to the point at issue (the statute under which defendant was convicted of misappropriating trust funds required an express trust declared in writing; the question was whether the rules of a savings bank fell within this provision). 9 The references in this note and down to n 14 derive from a search for ‘Cook v Fountain’ and dates 1827–1914 in full text on the Making of Modern Law database, and therefore have a slightly random character. I have set on one side references purely to the competence of executors as witnesses and a number of other minor uses of the case. H Jickling, A Practical Treatise on the Analogy between Legal and Equitable Estates (London, Stevens & Sons, Sweet & Maxwell, 1829) ii, 27–28, fn (a); J Hill, A Practical Treatise on the Law Relating to Trustees (London, Stevens & Norton, 1845) 55, fn (a); GW Spence, The Equitable Jurisdiction of the Court of Chancery (Philadelphia, Pa, Lea & Blanchard, 1846) ii, 3; J Story, Commentaries on Equity Jurisprudence as administered in England and America, 4th edn (Boston, Little, Brown, 1846) ii, 602; JJS Wharton, The Principles of Conveyancing (Philadelphia, Pa, T&W Johnson, 1851) 395; JN Pomeroy, A Treatise of Equity Jurisprudence, as administered in the USA (San Francisco, CA, AL Barratt & Co, 1881) i, 134, fn1; J Barbee Miner, Institutes of Common and Statute Law, 3rd edn (Richmond, VA, np, 1892) ii, 218; W Gray Hart, A Digest of the Law Relating to Private Trusts and Trustees (London, Law Notes Publishing Co, 1909) 13. 10 Hill (n 9) 80; Spence (n 9) i, 416–17; Pomeroy (n 9) 47; TE Holland, The Elements of Jurisprudence, 10th edn (New York, OUP, 1906) 71; G Spencer Bower, The Law Relating to Actionable Misrepresentation (London, Butterworth, 1911), 417. 11 Pitt v Pelham (1670) 1 Ch Rep 149, 21 ER 574, 1 Ch Cas 176, 22 ER 750, 2 Freem 134, 22 ER 1110; DEC Yale (ed), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge, CUP, 1965) 240. The ruling is actually that an express trust to trustees to pay debts imposes an implied trust to cooperate on the heir, but the general point is a legitimate inference from it. EB Sugden, A Practical Treatise on Powers, 6th edn (London, Sweet, 1836) 135, fn (p); Spence (n 9) i, 508–09; T Lewin, A Practical Treatise of the Law of Trusts, 6th edn (London, Maxwell, 1863) 123, fn (e); JW Perry, A Treatise on the Law of Trusts and Trustees, 5th edn (Boston, Mass, Little, Brown, 1899) 150, fn 2.

Coke v Fountaine 37 resulting trust,12 for the principle of parsimony in implied trusts13 and for the proposition—controversial in modern times—that a voluntary conveyance does not give rise to a presumption of resulting trust.14 There was a range of treatise writers, however, who did not use it at all.15 Why was there this delay in recognising Coke v Fountaine as an important case? Part of the story, I suggest, is the background of the case and the limited significance of this particular decision either in the course of the litigation between the parties, or in the law stated by Lord Nottingham. The other part is the greater legal significance in the field of an event a little less than a year later:16 the passage of the Statute of Frauds 1677.

D. THE BACKGROUND

The plaintiff Robert Coke was cousin and heres factus of John Coke of Holkham the younger, whose transactions with the defendant Andrew Fountaine formed the subject of the litigation. John Coke the younger was the son and heir of John Coke of Holkham the elder, who was second surviving son of Sir Edward Coke, the former Chief Justice. John the elder in 1612 married Merriel, daughter and heiress of Anthony Wheatley of Holkham.17 John the younger was his youngest

12 Spence (n 9) ii, 214, fn (c). R Storry Deans, The Student’s Legal History, 2nd edn (London, Stevens, 1905) 124, rather remarkably attributes the doctrine of presumption of advancement to Coke v Fountaine. 13 J Lord Campbell, Lives of the Lord Chancellors, 2nd edn (London, John Murray, 1846) iii, 419; TH Haddan, Outlines of the Administrative Jurisdiction of the Court of Chancery (London, Maxwell, 1862) 212–13 (misattributed to North CJ); S Warren, A Popular and Practical Introduction to Law Studies, 3rd edn (London, Maxwell, 1863) i, 625; Perry (n 11) i, 232 (rejecting the requirement of necessity). 14 Hill (n 9) 72–73; Spence (n 9) ii, 198; Haddan (n 13) 213, fn (a); Perry (n 11) i, 220, fn 4; JA Strahan, Strahan’s Leading Cases in Equity (London, Butterworth, 1909) 193. 15 G Jeremy, A Treatise on the Equitable Jurisdiction of the Court of Chancery (London, J & WT Clarke, 1828) was perhaps written before Swanston published the case; and Joseph Parkes’s A History of the Court of Chancery of the same year (London, Longman et al, 1828) uses only historical sources. But the case is not cited in any 19th-century edition of Snell available on The Making of Modern Law database (Principles of Equity, 1st edn (London, Stevens & Haynes, 1868) to the 12th edn by Archibald Brown, 1898), and I have not found more than an (erroneous) table of cases reference to it in any edition of White & Tudor’s Leading Cases on Equity before the 7th edition by Thomas Snow (London, Sweet & Maxwell, 1897), which uses it for the classification of trusts (ii, 694) and for the presumption of advancement (ii, 817, fn (d)). The information in this note is the product of a search in The Making of Modern Law database for ‘equity’ in title and dates between 1827 and 1900, followed by consultation of the Tables of Cases where the books had them; I have not thought it worth reporting in this footnote the silence of a large number of other less significant books. 16 Royal Assent 16 April 1677. Journals of the House of Lords (London, 1767–1830) (cited hereafter by the conventional abbreviation LJ) xiii, 118–21. Available at , accessed 14 March 2011. 17 CW James, Chief Justice Coke: his family and descendants at Holkham (London, Country Life, 1929) 93.

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son but the only one to survive him. He was baptised 8 September 1635, a year after his grandfather’s death.18 John the elder took the Parliamentary side in the civil war. He inherited the ‘grand estate’, ie the main body of Sir Edward’s very large estate (valued at £8,200 a year in the 1650s), on the death without surviving issue of his brother Sir Robert Coke of Huntingfield in 1652. John the younger was not sent to either of the Universities, but entered the Inner Temple at the age of 17 in 1652.19 There he met Andrew Fountaine, who was slightly his junior. Fountaine was born about 1637, the son of Brigg Fountaine, an Inner Temple barrister of possible Royalist leanings from a Norfolk gentry family. Andrew entered the Inner Temple in 1655 at the age of 18.20 After overlapping as students at the Inn for two years (1655–57), Coke and Fountaine left the Inner Temple in 1657 without passing the bar, to travel together on the Continent. It is perhaps possible that they were implicated in the fringes of the Royalist plotting of the period, since Coke was proposed as a Knight of the Royal Oak, the projected order of knighthood for staunch Royalists which was proposed in 1660–61 but in fact abandoned.21 Certainly, Coke was for some reason estranged from his father at this time and down to the latter’s death.22 Defence depositions in the Chancery cause suggest that John the younger and Andrew returned in 1660 and stayed, down to the death of John Coke the elder in 1661, with Brigg Fountaine; but John Coke the younger was still travelling in 1664, and the depositions suggest that Andrew Fountaine continued to accompany him.23 Whatever its nature, it seems clear that

18 BD Henning (ed) The House of Commons 1660–1690 (London, Secker & Warburg for the History of Parliament Trust, 1983) (cited hereafter as Hist Parl Commons 1660–1690), sub nom. Sir Edward Coke died 3 September 1634. 19 Ibid. J & JA Venn, Alumni Cantabrigienses, sub nom., confuses this John with his elder brother of the same name, born 1614, matriculated at Trinity College 1631, who died in 1633: , consulted 15 March 2011. 20 Hist Parl Commons 1660–1690, sub nom. 21 Ibid, snn. James (n 17), followed by Hist Parl, supposes that the nominee was John Coke the elder, in which case his estate was ‘grossly undervalued’ at £1,000 pa, but given James’s evidence (ch 14) of John the elder’s parliamentarism, and (at 102) his anticipated interest in ‘Socinian pieces’, and the complete absence of any evidence of his being suspect by the Cromwellian government (unlike his brother Henry: James, ch 16) or in any way ‘suffering’ for the King, it seems far more likely that John the younger was contemplated. 22 The bill (printed in AKR Kiralfy, A Source Book of English Law (London, Sweet & Maxwell, 1957) 271) blamed Fountaine’s machinations. Either political differences, or if the relationship between Coke and Fountaine was suspected of being sexual, would be equally possible explanations. But the point that Coke was estranged from his father and, as a result, short of money until his father died, was common ground of both sides in the litigation. 23 Hist Parl Commons 1660–1690, sub nom, has him meeting Philip Skippon in Florence in 1664, John Coke then being en route to Constantinople. Depositions in Kiralfy (n 22) 273–77.

Coke v Fountaine 39 the relationship between the two was an affective one rather than a purely business one. On his father’s death John the younger succeeded as tenant in tail in possession to the whole ‘grand estate’; the Middle Templar William Gwavas, who was ruled by the Court of Exchequer in 1678 to have been Coke’s receiver of rents from 1662 on, estimated Coke’s income at £10,000 a year—around £15.3m a year using average earnings to approximate modern values.24 The estate was, however, heavily encumbered. The Chief Justice had paid £32,000 of his sons’ debts, and John Coke the elder’s son Edward died in 1655 in debt to the tune of £40,000.25 In December 1661, soon after succeeding his father, John Coke the younger granted Andrew Fountaine a rentcharge of £1,000 a year, charged on the manors of Flitcham, Amner, Appleton and Minster Lovell.26 In the next few years he also entered into a series of transactions with him which substantially enriched Fountaine. In 1663 Coke barred the outstanding settlements by common recovery, and in the same year he granted a lease to Fountaine of Farnham Royal (Bucks) for 100 years at £35 pa rent, and in October 1665 leased lands in Mileham (Burghwood Manor, Mileham, Norfolk) to Fountaine for 40 years at £100 pa rent.27 In November 1665, he resettled the freehold by lease and release to the use of himself for life, with the usual powers, remainder to Andrew Fountaine and his brother James Fountaine to preserve contingent remainders, with remainders over including the ones which took effect: to his cousin Robert Coke of Thorington (grandson of John the elder’s younger brother Henry Coke) for 99 years determinable on death, remainder to Robert Coke’s eldest son in tail male. The two Fountaines also served as the ‘feoffees’ (strictly lessees and releasees) through whom the estate passed

24 WC Borlase, ‘Autobiographical Notice of William Gwavas, extracted from his Common Place Book, 1710’ (1878–81) 6 Journal of the Royal Institution of Cornwall 176, 178. Modern value from , consulted 24 March 2011. The ruling is in the June 1678 decree, PRO E126/13 fo 75r at fo 77v; Fountaine continued to dispute it in the House of Lords (Historical Manuscripts Commission, 11th Report, appendix Part II, HL MSS 1678–88, 115) and in the House of Commons in 1694 (Journals of the House of Commons (London, 1760) (hereafter CJ), vol x, 138), alleging that Gwavas acted down to 1668 as solicitor for both Coke and himself. 25 James (n 17) 80, 104. 26 4 December. This date is in the bill: Kiralfy (n 22) 271. The date was not disputed in the litigation. See James (n 17) 106 for the manors charged. 27 The bill and answer as summarised in the 1676 decree, TNA PRO C33/247 fo 606v at 606v, 607r. Farnham Royal is near Sir Edward Coke CJ’s country residence at Stoke Poges; he had bought it in 1630 (‘Parishes: Farnham Royal with Seer Green’, A History of the County of Buckingham: Volume 3 (1925), 225–31; available at , accessed 15 March 2011).

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by virtue of the Statute of Uses. During this period Coke’s will also made Fountaine an executor.28 Meanwhile, Fountaine was permitted to receive substantial rents and entry fines on the re-letting of various properties, and invested a substantial part of the money received in his own name. Between the early 1660s and December 1668 Coke gave Fountaine a series of nine releases of all demands in law and equity. In the Exchequer pleadings and decree a difference is made between the ‘general releases’ down to 1664, and ‘special releases’ between 1664 and 1668, but the distinction appears to be an artificial one driven by the limits of the plaintiffs’ evidence.29 The most plausible explanation of these transactions is one which was actually suggested by the plaintiffs’ bills in Exchequer and Chancery, and discussed in modified form, but then immediately discarded, in Lord Nottingham’s judgment. That is, that Coke did in fact intend to make large money gifts, of £20,000 or thereabouts, to Fountaine, out of income; but that he thought that he might die before the intended gifts were completed, that the gifts would be challenged after his death and that they might be hard to defend; and that he therefore gave Fountaine legal interests intended as securities to protect Fountaine, after Coke’s death, from the claims of Coke’s heirs and representatives. By his answer in the Exchequer, Fountaine said that Coke had promised him £20,000, though what was proved by witnesses in Chancery was merely a general intention on John Coke’s part that ‘as Andrew had shared the sour, so he should share the sweets’. Fountaine at some point shortly before 1670 married a widow, Theophila Wells, who was a distant relative of Coke,30 and in a 1670 letter Coke said that he was glad to see him settled.31 In 1669–70 Coke’s relations with Fountaine seem to have cooled. In 1669 they were negotiating, seemingly at arm’s length, for Coke to buy out the 1661 rentcharge.32 In the 1670 letter cited above, Coke asked Fountaine to send him title deeds which were in his 28 The will making Fountaine executor is dated c 1663 by William Synstead in his deposition; Kiralfy, (n 22) 275 at No 7. 29 TNA PRO E126/13 fo 75r at fo 75v. 30 Historical Manuscripts Commission 11th Report, appendix Part II, HL MSS 1678–88, 115. The relationship is that Ann Coke, sister of the Chief Justice, married Francis Stubbe (); their grandson Edmund Stubbe, DD, Fellow of Trinity College Cambridge and Rector of Huntingfield, Norfolk (CH Cooper, Athenae Cantabrigienses (Cambridge, Deighton, Bell, 1858–1913, 3vv, ii, 112), was the father of Theophila Stubbe, who married (1) William Wells or Welles of Halvergate, Norfolk (2) Andrew Fountaine; Hist Parl Commons 1660–1690, sub nom. Fountaine, Andrew. 31 Hist Parl Commons 1660–1690, sub nom., does not give a date. Anthony Cubitt’s deposition, Kiralfy (n 22) 276, gives the marriage as the end of the intimacy between Cook and Fountaine. For the 1670 letter, see James (n 17) 107. 32 Fountaine’s answer in the Chancery proceedings, TNA PRO C10/133/22 (also recited in Lord Nottingham’s decree, PRO C33/247 fo 606v at 607r–v).

Coke v Fountaine 41 possession, since Coke was himself entering into negotiations with a view to marriage. Fountaine’s response was abrupt if not rude, and he certainly failed to produce some of the deeds. But Coke did not commence litigation against him, and Lord Nottingham in his judgment said that ‘there did remain a kindness between them even after the letter’.33 In late July 1671, while visiting his cousin Captain Robert Coke of Nonsuch (1623–81, son of the Chief Justice’s youngest son Clement), apparently with Gwavas, Coke was struck down by an ‘appopleticall distemper’ (ie, a sudden and disabling illness producing initial loss of consciousness)34 of which he died aged 36, still unmarried, on 1 August. Gwavas drafted for Coke a will, executed 28 July, a trust lease of the same date, and a codicil executed 31 July.35 The will and codicil gave Coke’s copyholds (as the facts fell out) to Robert Coke of Thorington for life, remainder to his heirs male; £1,000 each to the seven children of his sisters, charged on Holkham; £500 each to the children of Robert Coke of Nonsuch; and various other minor legacies, chiefly to servants.36 It gave the whole of Coke’s personalty to Robert Coke of Nonsuch, John Coke’s sister Elizabeth Cobb and Gwavas, by name, and in the final clause appointed the same three as executors.37 The trust lease of 28 July 1671 gave Robert Coke of Nonsuch and Gwavas a 500year lease of the Holkham estates, in trust to pay debts and legacies, and after four years after debts and legacies paid, to attend the inheritance.38 The freehold estate passed under the 1665 resettlement to Robert Coke of Thorington, who thus became Robert Coke of Holkham. Theophila Fountaine died in 1671–72 in or shortly after giving birth to a daughter, also called Theophila, who died aged six months on 19 March 1671/72.39 Fountaine on 29 April 1672 married Sarah Chicheley; the marriage was not a happy one due to his drinking, but her connections provided Fountaine with a seat in the Exclusion Parliaments—where, though listed as

33

James (n 17) 107–08; Lord Nottingham, 73 SS 370. I am indebted to Prof John Morris for his explanation of the 17th-century meaning of this phrase (personal communication). 35 Coke v Gwavas, Coke & Cobb, plaintiff’s bill recited in the decree (1682) TNA PRO E126/14 fo 39v (not contradicted in defendants Coke and Gwavas’s joint answer, and the court (unusually) comments on the evidence that the will was all in Gwavas’s handwriting at fo 41r). The probate sentence, TNA PRO PROB11/337, gives the place of death as Nonsuch. 36 Coke v Cobb in the HL, Historical Manuscripts Commission, 12th Report, appendix Part V, HL MSS 1689–90, 253, at 253–54. 37 The probate of the will at TNA PRO PROB11/337 fo 128. 38 Information from the Exchequer decree in Coke v Gwavas above n 35. 9 Mod 187, 88 ER 390, misreports the date of the lease as 23 July. 39 See . Fountaine had bought Brookmans, North Mimms, Herts, in 1666: ‘Parishes: North Mimms’, A History of the County of Hertford: volume 2 (1908), 251–61, available at , accessed 16 September 2011; the purchase was attacked in Lady Astley v Fountaine (below nn 59-61 and text there). 34

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a court supporter, he voted for the first Exclusion Bill.40 He lived till 1707, and his son, also called Andrew (1676–1753), was knighted by William III and became famous as a ‘virtuoso’ and amateur architect.41 Robert Coke of Holkham in 1674 married Lady Anne Osborne, daughter of Thomas Osborne, Earl of Danby (later Marquess of Carmarthen and Duke of Leeds). He ran himself heavily into debt in 1675 campaigning in the court interest for the King’s Lynn parliamentary constituency vice Francis North AG who had been appointed Chief Justice of the Common Pleas, and was bailed out by Danby, who as a result took over Robert’s financial affairs. Robert died of smallpox in January 1678/79, leaving his infant son and heir Edward (born 1676) in the legal guardianship of his mother and the de facto guardianship of his grandfather Danby.42 The effect of this marriage is that from c 1674–75 the litigation may have been affected by the fortunes of Danby, and hence by high politics. Danby was Lord Treasurer and what would later be called Prime Minister (1673–79). In this period, though unsuccessful at law, Coke and the executors had partial successes both in Chancery and in the equity side of the Exchequer. Danby fell from office in March 1679 and was sent to the Tower pending impeachment and Bill of Attainder proceedings in April of that year, remaining in the Tower until February 1684. He was fully cleared and reintegrated in politics as one of the central Tory leaders on the accession of James II; but as a leader of the Anglican party, he moved into opposition in 1687, signed the invitation to William III to invade, and was again a minister in 1690–95.43 In the latter period the Coke family had considerable success as various aspects of the litigation reached the House of Lords.

E. THE LITIGATION

Efforts to claw back what the various plaintiffs saw as Fountaine’s ill-gotten gains began rapidly after John Coke the younger’s death. The attack was fourpronged. The first element was self-help by Robert Coke of Holkham, leading to litigation in King’s Bench in which Fountaine was largely successful. 40 Hist Parl Commons 1660–1690, sn. Fountaine’s counsel at several stages of the Chancery proceedings in the 1670s included the later Whigs Serjeant Maynard and Anthony Keck, while Robert Coke could be found represented by the Attorney-General, Solicitor-General, Sir William Montagu A-G to the Queen, and the later Tory Sir John Churchill; eg TNA PRO C 33/239 fos 51v, 60r, C33/243 fo 74r, 247r, 270v; for the lawyers’ political affiliations, see Hist Parl Commons 1660–1690, sub nominibus. This suggests a little more political involvement than Hist Parl recognises. 41 HCG Matthew, BH Harrison & L Goldman (eds) The Oxford Dictionary of National Biography Online (Oxford, OUP, 2004), sub nom. 42 Hist Parl Commons 1660–1690, sub nom.; James (n 17) 135–36. 43 Oxford Dictionary of National Biography, sub nom.

Coke v Fountaine 43 The second was litigation by the executors in the equity side of the Exchequer, in which they claimed that several investments in Fountaine’s name were, in fact, made with John Coke the younger’s money and in trust for him, and attacked the releases. The third was Chancery litigation by John Coke the younger’s sisters, his heirs general, making similar claims. The fourth was the Chancery litigation brought by Robert Coke of Holkham, in the course of which Lord Nottingham’s judgment was delivered. All four began at around the same time, though the Chancery litigation was first; it is most convenient to treat it last, however, because our main concern is with Lord Nottingham’s judgment in Robert Coke’s Chancery proceedings.

(1) At Law Robert Coke of Holkham took possession by self-help of some of the property leased to Fountaine, forcing Fountaine to bring an ejectment against him in King’s Bench. This case, How d Fountaine v Style d Coke (1674–75), was quite widely reported.44 A jury found a special verdict that John Coke the younger, having leased to Fountaine for 99 years,45 two years later made a settlement by conveyance by lease and release to Fountaine and another, to the use of Coke for life with various remainders over. The defendant’s argument was that Fountaine’s acceptance of the lease stage of the lease and release amounted to a surrender of the prior lease. The King’s Bench, led by Hale CJ, rejected this argument, preferring the argument of Francis Pemberton (later Chief Justice) to that of Richard Weston (later Baron of the Exchequer): the lease and release to uses was a single conveyance of the freehold under the Statute of Uses, which therefore left the prior lease intact. This was an important decision on the operation of the Statute of Uses, and frequently cited. As we have already seen, in Robert Coke’s Chancery proceedings, to which we shall return later in more detail, the outcome as of 1676 was that the leases were held to be in trust, but that the rentcharge of £1,000 pa was held not to be—though in the course of reaching this conclusion, Lord Nottingham remarked that, having not enforced payment during the life of John Coke the younger, Fountaine would now be at some difficulty in enforcing payment at law, because he was not seised of the rent.46

44 Fountain v Coke (1674) 1 Modern 107, 86 ER 768; How v Style (1674) 1 Freeman 384, 89 ER 286, (Howe) (1675) 1 Freeman 392, 89 ER 291; How v Stile (1675) 2 Levinz 126, 83 ER 481; How v Stiles (1674) 3 Keble 283, 84 ER 722, (v Stile) (1675) 3 Keble 430, 84 ER 805. 45 James (n 17) 106, has 49 years. The recital in the decree, above n 27 and text there (100 years of Farnham Royal, 40 years of Mileham) seems most likely to be correct. 46 73 SS 370–71, 3 Swanst 600, 36 ER 990.

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Robert Coke did indeed withhold payment, and this gave rise to litigation between Fountaine, Coke and the executors, in King’s Bench, reported by several reporters under dates between 1680 and 1687.47 The first step was an ejectment against Robert Coke, Fountaine claiming under a right of entry for non-payment contained in the rentcharge deed. The point reported in 1680 was simply that Gwavas was offered as a witness for the defence, but rejected on the ground of interest.48 Fountaine then proceeded to sue Gwavas as surviving executor (Robert Coke of Nonsuch having died in 1681) in covenant for arrears of the rentcharge under John Coke’s covenant for payment in the rentcharge deed. Gwavas pleaded in bar of the action Fountaine’s entry under the right of entry, claiming (in modern terms) that taking possession, and an action on the covenant to pay, were alternative and not cumulative remedies. The case was argued in both 1683 and 1687 without being reported as coming to a conclusion, though the judicial statements are largely against Gwavas’s counsel’s arguments.49

(2) In the Exchequer The second prong of the attack was proceedings by the executors against Fountaine in the equity side of the Exchequer. The bill in this suit was filed in Easter Term 1672.50 It charged that Fountaine, being aware of Coke’s expectations, had set out to exploit him by prevailing on him to travel to France against the will of Coke’s father, and to give him a bond of £5,000 by way of gift; that the rentcharge of £1,000 was merely security for this gift. Coke, it alleged, arranged that Fountaine ‘as his friend should undertake the general management of his affairs especially in the letting of his estate’, but that Gwavas was nonetheless appointed receiver of Coke’s ‘ffynes, rents and other moneyes’ in 1662 and remained in post until Coke’s death. Fountaine, it should be said, claimed that Gwavas acted for both him and Coke down to 1668; the matter was highly significant in relation to Gwavas’s competence as a witness, and the admissibility and credibility of accounts prepared by Gwavas which were at the centre of the executors’ claim. Fountaine, the bill claimed, received £8,000 of Coke’s money which was released to him by releases down to 1664, in discharge of the £5,000 bond and ‘as a further bounty’. The releases between 1664 and 1668 were, it alleged, obtained by ‘surprise’ (vitiated by non-disclosure) and used 47 Cooke v Fountain [recte Fountain v Cooke] (1680) 1 Ventris 347, 86 ER 224; Fountain v Guavers (1683) 2 Shower KB 333, 89 ER 971; Fountain v Guavers (1683) Skinner 146, 90 ER 68; Fountain v Gnales (1687) Comberbach 59, 90 ER 343. 48 (1680) 1 Ventris 347, 86 ER 224. 49 None of the reports (above n 47) is particularly satisfactory. 50 What follows is derived from the decree, PRO E126/13 fo 75r, which recites the pleadings and some of the prior orders in extenso.

Coke v Fountaine 45 over-general words, being intended to release only sums actually received from Coke and accounted for by Fountaine. It then went on to particularise moneys and securities which had been taken in Fountaine’s name or that of nominees, or which were in Fountaine’s hands, which, it claimed, were actually investments of John Coke’s money for which Fountaine should account. It is unnecessary to particularise these claims further for present purposes except for one—£5,000 lent to Sir Robert Holte of Aston, Warwickshire, on the security of an assignment of a prior mortgage to James Perrott, which became the subject of specific proceedings in the 1680s and 90s.51 The claim thus involved three equities. The first—not particularised in the recitals of the decree—is the form of fraud which would in more modern times be called ‘undue influence’. There is more on this in the Chancery proceedings and it will be discussed there. The second is ‘surprise’ (nondisclosure as a vitiating factor), to attack the releases between 1664 and 1668. The third is ‘general words’ to attack the same releases; this was an established head of the mistake jurisdiction of courts of equity in relation to general releases.52 Fountaine disclaimed any interest in the £5,000 bond; pleaded in bar the releases; and offered to account for all transactions after the date of the last release, 29 December 1668; otherwise traversing all the allegations of the bill. In June 1672 the court allowed the plea as to the releases down to 1664 but rejected it as to those between 1664 and 1668, while reserving the benefit of the plea to the hearing. At some date between 1671 and 1676, Robert Coke of Nonsuch and Gwavas bought Elizabeth Cobbe’s interest in the executorship for £1,200. In 1676 they contracted in writing with Robert Coke of Holkham for the sale of the assets of the executorship and the trust lease for £3,600 to be

51 For Holte see Hist Parl Commons 1660–90, sub nom. The proceedings are discussed below n 55 and text there, and at nn 91–95 and text there. 52 Relief against unintended effects of general words in conveyances was available in equity by the 1580s: Rither v Tempest (1581) Ch C Ch 145, 21 ER 186, 117 SS 370 No [10]; Lord North & Lord Dacres v Millett (1593) 117 SS 197 No [144] per Egerton AG arg. The first reported application of the idea to a release appears to be Topp v Roberts (1636) Toth 27, 21 ER 113, slightly more clearly stated in W Sheppard, The Faithful Councellor: or the Marrow of the Law in English (London, 1651) ‘625–26’ (pagination is inconsistent); cf also Merrick v Harvey (1649) Nels 48, 21 ER 786. Sheppard (at ‘625’) states the basis of the relief to be the general mistake jurisdiction. The absence of earlier reports is probably due to the deficiencies of the early Chancery reports. There are several cases in Lord Nottingham’s reports: eg Brown v Savage (1674) 73 SS 103; Heningbrook v Steel (1676) 73 SS 301; Gardner v Hart (1676) 73 SS 329. The common law position evolved from an initial view in the mid–late 16th century that intentions were irrelevant, since releases were to be construed strictly against the grantor, to willingness by the later 17th century to take into account at least those more limited purposes recited in the same document as a general release: [M Bacon et al], The New Abridgment, 6th edn by H Gwillim (London, 1807), tit Release, v, 680, & sub-tit (K), 710–12, has an outline of the history using most of the relevant cases.

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paid to Coke of Nonsuch, £3,500 to Gwavas and £1,200 still owing to be paid to Cobbe.53 These transactions (besides being a clear breach of trust on the part of Gwavas and Coke of Nonsuch) strongly imply either that the executors at the date of the sale of Elizabeth Cobbe’s interest had no honest belief in the success of the claims against Fountaine, or that Elizabeth Cobbe was cheated. The case came to be decreed in the Exchequer 10 June 1678. One group of securities was decreed to be Coke’s, and Fountaine to account to the executors for these. A second group of claims—the Holte mortgage and £1,000, part of money lent to Alderman Backwell—was sent for trial at law, both on the issue whether the money was Coke’s, but the Holte mortgage also on the issue whether Coke had given the money, or the mortgage, to Fountaine. In relation to a third group of securities the court held that they were proved to belong to Fountaine beneficially, and dismissed the bill. Though the decree does not state the relevant law applied, it must be clear that it is not grounded either on undue influence (which would have affected the releases down to 1664 as well as those down to 1668) or on surprise (which would have prima facie affected the 1664–68 transactions uniformly); it must be based on the ‘general words’ doctrine. Fountaine, on 5 April 1679 (promptly after the fall of Danby), appealed to the House of Lords, but the parliaments between that date and 1681 were dominated by the Exclusion question and repeatedly prorogued, and the appeal got no further until 1685. Edward Coke (or, rather, his guardians) then cross-appealed; but the only order then made was discovery against Gwavas.54 Parliament not sitting continuously, the Exchequer did not regard the appeal as staying the proceedings. Substantive arguments continued into 1682 on exceptions to the Auditor’s report on the account, and since Fountaine had not been prepared to proceed to trial under the handicap of being required to admit that Gwavas was Coke’s receiver of rents, the Holte mortgage came back to be heard in court and was decreed for the executors in 1682.55 In 1687, Gwavas applied in the Exchequer for a sequestration against Fountaine by way of execution of the prior decree. This case was reported, the question argued being whether sequestration was available to

53 Gwavas’s answer, recited in the decree in Coke v Gwavas PRO E126/14 fo 39v at 40v, recites the agreement with Robert Coke of Nonsuch, which itself recited the agreement with Cobbe. 54 Historical Manuscripts Commission 11th Report, appendix Part II, HL MSS 1678–88, 115–18. LJ xiv, 55, 23/06/1685; he had not complied by November, ibid. xiv 79 12/11/1685, when Edward Coke was also given permission to cross-appeal. 55 TNA PRO E126/13 fos 315v, 323r–324r, 342r, 363r, 386r–387r.

Coke v Fountaine 47 enforce a claim in personam: it was agreed by 3:1 that it was, Montagu CB dissenting.56 Edward Coke’s guardians had, meanwhile, succeeded in January 1683 in obtaining a decree in the Exchequer against the executors and Gwavas as surviving trustee, that the personalty was to be applied in ease of the realty and that the four-year gap after payment of debts and legacies in the trusts of the trust lease was to be taken to attend the inheritance. This decision is not in contemporary printed reports, but was cited from memory, manuscript or the record in 1709 and 1712.57 The result was that Gwavas was liable to account to Edward Coke, and hence he remained in the proceedings as a mere trustee and became a competent witness, though perhaps not a very credible one.58

(3) In Chancery: John Coke’s Heirs General John Coke’s sisters surviving at his death and the children of his deceased sisters exhibited their bill in Chancery on 18 April 1673. It claimed straightforwardly that John Coke had contracted in 1666 to buy the Manor of Brookmans and other lands in Hertfordshire; the purchase money was raised out of John Coke’s estate, but the conveyance was taken in Fountaine’s name in trust for Coke; and that as Coke’s heirs general they succeeded to his beneficial interest (which, if it existed, had not been disposed of either by the 1665 settlement or by Coke’s will). Fountaine by answer denied the trust or any antecedent knowledge of the purchase by Coke; and as to the purchase money pleaded Coke’s release of all actions and demands on 29 December 1668, and demurred on two grounds: (a) that the executors were necessary parties; and (b) that he was not obliged to make discovery of the financing of the purchase until the plaintiffs had proved the trust.59

56

Guavers v Fountain (1687) 2 Freeman 99, 22 ER 1083. TNA PRO E126/14 fo. 39v-41v. The emphasis in the decree on Gwavas’s drafting the will suggests that its legal ground is close to the rule in Wintle v Nye [1959] 1 All ER 552. The order did, however, provide for the Auditor taking the account to settle compensation for Gwavas’s work as executor. Cited briefly in Countess of Bristol v Hungerford (1709) 2 Vern 645, 23 ER 1021; more fully by Parker CJ in Roper v Radcliffe (1712) 9 Mod 181, 187; 88 ER 387, 390. 58 His son, the Cornish antiquary William Gwavas (1676–1741), commented that his father ‘succeeding in [sic] an Incumbered Estate, and also engaged in a Law Suite with the Duke of Leeds, by being Executor to Mr John Coke, Left ye Estate much further in Debt, and my Mother with Eleven Infant Children liveing, and 13 Several Law Suites depending at his death’: Borlase (n 24) 178. 59 TNA PRO C10/183/4, also summarised in the entry of the hearing of the plea and demurrer C33/241 fos 84v–85r. 57

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On 4 November 1673 the court (probably Grimston MR) reserved the benefit of the plea to hearing (as was standard practice); disallowed the demurrer for want of proper parties, without giving reasons; and allowed the demurrer to discovery, with the proviso that if the plaintiffs proved the trust, Fountaine should then be examined on interrogatories as to the finances. This decision was not reported at the time but was extracted by William Nelson in his collection of ‘reports’ taken from the decree and order books of the time of Lord Nottingham.60 The effect of the decision was to cripple the plaintiffs’ claim. After a series of delays for them to examine witnesses and an attempt on their part to introduce the evidence in the Exchequer cause, on 6 June 1676 they failed to appear at hearing and Lord Nottingham dismissed their bill with costs.61

(4) In Chancery: Robert Coke Robert Coke’s Chancery proceedings started very quickly after John Coke’s death.62 His bill charged that Fountaine had deliberately set out from the start to exploit Coke by setting him at odds with his father, inducing him to borrow money on his expectations on the (common) basis that bonds were given for two or three times the sum actually lent,63 and persuading him to go overseas. It alleged that Fountaine procured Coke to promise him a gift of £5,000 by penalty bond, and then, finding after John the elder’s death that John the younger was merely tenant in tail under Sir Edward’s settlement, so that the penalty bond would be of doubtful value in the event of John the younger’s death, procured the rentcharge by representing it to be a security for the £5,000. It went on to charge that in July 1663,

60 TNA PRO C 33/241 fo 84v. Lady Astley v Fountaine (1673) Rep t Finch 4, 23 ER 3. Despite the case being reported in W Nelson (ed), Reports of cases decreed in the High Court of Chancery, during the time Sir Heneage Finch, … was Lord Chancellor (London, R Gosling, W Mears, and J Hooke, 1725), the decision reported is not, in fact, by Lord Nottingham. It was made five days before Nottingham’s appointment, probably by Grimston MR rather than Shaftesbury C, since the draftsmen of orders at this period commonly identify as such those orders on matters of substance actually made by the Lord Chancellor or Lord Keeper and this decision is not so identified. 61 TNA PRO C33/241 fo 663v, C33/245 fos 157r, 244r, 265v, 300r, the final decision at 793r. 62 The first order in the cause was made 29 November 1671: TNA PRO C33/237 fo 61r (for special service of process at the defendant’s lodgings in Bloomsbury). That said, the bill, TNA PRO C10/113/22, is dated as filed in Easter Term 1672. 63 JL Barton, ‘The Enforcement of Hard Bargains’ (1987) 103 LQR 118 discusses the equity doctrine in this area: the lender to an expectant heir was considered to be entitled to a significant risk premium in the light of the risk that the heir-presumptive in question would predecease his ancestor, so that inequality of value on its own was rarely enough to interfere with the transaction.

Coke v Fountaine 49 Fountain let several premises to tenants in Coke’s name and received part of the fines in cash; the total amounting to more than the (alleged) original gift of £5,000, for which the rentcharge was merely a security. Fountaine, it claimed, had received nearly £30,000 of Coke’s money. But though paid any real demand, Fountaine was now litigating and levying distresses to enforce the rentcharge.64 The substantial equities charged by the bill were thus two. The first was fraud, of the form that would later be called ‘undue influence’.65 The second was that the rentcharge was merely security for the prior legal demand of £5,000, and that Fountaine had received this through the leasehold transactions or otherwise. Fountaine by answer denied the fraud, asserting that the influence in 1657 was of Coke on him and not the other way round, denied that the rentcharge and leases were a security or trust, pleaded the releases, and asserted that the rentcharge was satisfied down to the last release in December 1668 by the money Coke had released to him and that he had demanded payment under the rentcharge on 10 May 1669 but then entered into negotiations with Coke to sell it back to him.66 After extensive procedural manoeuvrings, the parties reached issue in 1674 and witnesses were examined on commission in January 1674/75.67

64 The bill also claimed discovery and delivery up of the 1665 settlement and other title deeds relating to the estate (which were in Fountaine’s hands as trustee to preserve contingent remainders), and alleged the rentcharge and leases were invalidated by subsequent transactions between the parties. Fountaine demurred to the invalidation claim as merely at law and the plaintiff struck this claim out of the bill. The delivery up claim gave rise to considerable argument, since the full extent of the plaintiff’s claim on this front would avoid Fountaine’s legal title before hearing of the principal cause, ending with an order by Grimston MR (7 November 1672) that Fountaine was to produce to a Master deeds not concerned with the rentcharge and leases, varied to make it more favourable to the plaintiffs by Shaftesbury C on 21 November. Shaftesbury’s order was so seriously wrong that Finch A-G (later Lord Nottingham) and Francis North S-G (later CJCP and Lord Keeper), who had before appeared for the plaintiff, appeared for the defendant to have it reversed. PRO C33/237 fos 255r, 454v, 504r, 718r, 741r–v, C33/239 fos 51v–52r, 60r, 68v, 85r. 65 Eg Bridgman v Green (1755) 2 Vesey Senior 627, 28 ER 399, Green v Bridgeman (1757) Wilmot 58, 97 ER 22, a case which has some similarities to the alleged facts of the Coke v Fountain litigation though (a) it was brought by the person allegedly influenced, and (b) the social distance between the gentleman Bridgman and the menial servant Green was far greater than that between John Coke the younger and Andrew Fountaine, both gentry and law students merely differing dramatically in their inheritance expectations. In modern terms the claim would clearly have to be of actual, not presumed, undue influence. 66 The answer as recited in the entry of the 1676 hearing, TNA PRO C33/241 at fos 607r–v. 67 Kiralfy (n 22) 273. 29 January 26 Car 2 is (just) 1674/75, not 1673/74, Charles I having been executed 30 January 1648/49. (The dating problem involved is that court records were dated by regnal year and law term, and Anno Domini dates were at this period given on the basis that the new year started on 25 March, so that it is easy to get the chronology wrong by a year in relation to events dated in January–March. More generally, the dates given are as they appear in the records or reports, hence Old Style (Julian calendar) not New Style (Gregorian calendar).)

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The defendant’s interrogatories reflect the focus of the case, going entirely to the fraud question and to John Coke the younger’s actual intention to confer substantial benefits on Andrew Fountaine. It came to hearing in July 1675, when the only issue Lord Nottingham thought worth noting was Gwavas’s competence as a witness (on the basis of complete non-recognition of the scope of Gwavas’s claims to beneficial interests under the will and trust deed, he took it that the interest was too minor to lead to bias).68 Lord Nottingham did not then make a decree, since ‘there were once some hopes of a composure’.69 The case was brought to rehearing in 1676 before the Lord Chancellor and the two Chief Justices; judgment was evidently reserved, and Lord Nottingham reports only the judgments delivered in May. Danby will have had good reasons to expect a positive result, since all three judges were political colleagues in the ‘church/court party’ he had been constructing, and Nottingham and North had at earlier stages of the proceedings appeared for Robert Coke.70 The decree was perhaps more ambiguous than he might have hoped, but probably about as adverse to Fountaine as was possible on the evidence, given the interplay between these proceedings and the claims in the Exchequer. It is clear from the judgments that the plaintiff’s core fraud case could not be made out. This left behind two issues. The first was the claim that the rentcharge was a security. As Lord Nottingham pointed out,71 if this was the real intention, it must have been a security for intended gifts of around £20,000 (which Fountaine said in his answer in the Exchequer Coke had promised him), not for £5,000 (otherwise it would have enormously oversecured the claim). This interpretation would, as I have said above, probably be consistent with John Coke’s conduct towards Fountaine in the 1660s and with the other transactions in that period under which Fountaine received very substantial sums of money. But for the Court of Chancery to make this finding would substantially weaken the executors’ claim in the litigation in the Exchequer, still pending, where investments in Fountaine’s name were attacked as made with Coke’s money and Coke’s release of Fountaine’s accounts attacked as not intending to give him the money he 68

73 SS 185. 73 SS 363; 3 Swanst 588, 36 ER 986, reads ‘compromise’. In the absence of a decree there is no entry in the records. 70 Hist Parl Commons 1660–1690, sub nominibus. Pace Yale’s account in Oxford Dictionary of National Biography, sub nom., and in his introduction to 73 SS, Nottingham was certainly an independent political actor and is identified in the short biography of Danby in Oxford Dictionary of National Biography, sub nom., as a leader of one of the parliamentary groups that coalesced to form the Danby ‘court party’. As a result, North and Rainsford, who were promoted to Chief Justice in 1675 and 1676 respectively, should prima facie be seen as in debt to Nottingham, rather than to Danby, for their promotions. Nottingham and North appeared for Coke, above n 40. 71 73 SS 369, 3 Swanst 598, 36 ER 989. 69

Coke v Fountaine 51 had actually received. If the rentcharge was a security, these transactions were probably gifts. Finding the rentcharge to be a gift gave Fountaine little, because of the limits on his ability to enforce it at law and the fact that as a volunteer he was not entitled to the aid of equity to enforce it.72 It conversely implied that the subsequent transactions were probably not gifts, strengthening the executors’ case in the Exchequer and Coke’s argument on the leases in the instant hearing (below). The remaining issue was whether the leases of Farnham Royal and Mileham were gifts to Fountaine, or in trust to attend the inheritance. This was a case not made in the plaintiff’s bill, which asserted fraud or security, and not argued in 1675.73 The fact that it was in these circumstances permitted to be argued was a violation of the Chancery’s basic procedural norms and of natural justice. The normal rule was that once issue had been joined, and a fortiori once the depositions had been published, there could be no amendment of the plaintiff’s bill except in very exceptional cases. The reason for the rule was, in fact, given by Lord Nottingham in his Prolegomena, written around the time that he took up the seals.74 The risk of late amendments was that the defendant would be ‘ambushed’ by a new case after the interrogatories on which the defendant’s witnesses would be examined had been settled. After publication of the depositions was a fortiori because there could be no new examinations after publication. The defendant might, therefore, have possible testimonial evidence to disprove the new case, which he was absolutely barred from using by the Chancery’s procedural rules. The operation of these rules could be avoided in early Chancery practice by examining witnesses ad informandam conscientiam iudicis, or in the later practice by ordering a trial at law on the new issue; more generally available was to dismiss the plaintiff’s bill without prejudice to a new bill based on the new argument.75 In this case none of these options was taken; and the case provides a beautiful example of the ambush problem. The case made down to the 1675 hearing was entirely one of fraud (in modern terms actual undue influence). Even the allegation that the rentcharge was a security was subordinated to this charge, by virtue of the claim that it was a security for a bond which was itself fraudulently obtained. The defendant’s interrogatories and the testimony they elicited were entirely addressed to disproving the allegation of fraud and proving that John Coke the younger had a free intention to make gifts to Andrew Fountaine. Lord Nottingham, in fact,

72

Lord Nottingham, cited above n 46. Lord Nottingham at 73 SS 369, 3 Swanst 598, 36 ER 989. 74 Yale (ed) (n 11) 301. 75 M Macnair, Law of Proof in Early Modern Equity (Berlin, Duncker & Humblot, 1999) 51–54. 73

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says that this evidence was irrelevant to the issue of trust or no trust (of the leases) which had been raised at the second hearing.76 But the court decreed for the plaintiff without giving the defendant an opportunity to lead evidence to rebut the plaintiff’s new case advanced at the second hearing. No explanation for this severe procedural irregularity is given; the point is merely not addressed. The problems do not stop there but continue in Lord Nottingham’s analysis of the evidence on trust or no trust of the leases. If we suppose that the plaintiff in the case had been a creditor of John Coke the younger or a subsequent purchaser of the land in question, this evidence would be open and shut for the plaintiff: Coke and Fountaine certainly both continued after the grant of the leases to act as if the title was in Coke, and this would be enough to establish a trust to defraud creditors even without the Fraudulent Conveyances Acts of 1571 and 1584, which would avoid the effect of the leases at law.77 But Robert Coke of Holkham was not a creditor or purchaser but a volunteer—claiming, as he did, under John Coke the younger’s voluntary 1665 settlement. As between two volunteers, any presumption of trust could certainly be rebutted by evidence of intention to give to the transferee.78 The purpose of Lord Nottingham’s discussion of the classification of trusts, quoted at the beginning of this chapter, is precisely to avoid this line of reasoning: this trust, he says, is not an implied trust (as a resulting use was implied on a voluntary conveyance) but an express trust proved by ‘violent presumptions’, meaning here strong circumstantial evidence as opposed to any presumption of law, that there was an express declaration of trust, now lost, to hold the leases as terms attendant on the inheritance. It has to be said that if so, they were very odd terms attendant: unusually short, with a single trustee only, and created only to attend the inheritance rather than in the first place to raise portions, etc.79 Lord Nottingham’s claim that Fountaine’s evidence of Coke’s animus donandi was irrelevant because it applied to both the leases and the rentcharge was evidently artificial. Fountaine no more took seisin of the rent in Coke’s life than he took possession under the leases; and North CJ said that his failure to take seisin under the rentcharge could be explained by

76

73 SS 364–65, 3 Swanst 590–91, 36 ER 986. W Roberts, A Treatise on the Construction of the Statutes 13 Eliz. c. 5 and 27 Eliz. c. 4 relating to voluntary and fraudulent conveyances (London, J Butterworth, 1800), though late, is a convenient treatment of this branch of the law. 78 Lord Nottingham in fact cites (73 SS 365–66, 3 Swanst 592, 36 ER 987) two of the relevant cases, North v Crompton (1671) 1 Ch Cas 176, 22 ER 759 (express evidence of intention to give) and Yale (ed) (n 11) 241 No 4, and Windham v Windham (1669) Yale (ed) (n 11) 241 No 5 (on the presumption of advancement). 79 Yale discusses the doctrine of terms attendant on the inheritance in his ‘Introduction’ to 79 SS, at 150–60. 77

Coke v Fountaine 53 deference to his benefactor (though North later contradicted himself on the point).80 The failure to take possession under the leases is the core of both North’s and Nottingham’s arguments for a trust;81 and it could be perfectly well explained in the same way. As I have said above, the most probable real explanation is that all the transactions were intended to give Fountaine investable money immediately, and protection from Coke’s heirs and representatives in case Coke died. It could thus be legitimately argued that the rentcharge and leases were no more than securities, and Fountaine should therefore account as mortgagee and, if found to have been satisfied, reconvey. But, as Lord Nottingham said, to make this case would certainly require that the executors be made real parties to the Chancery litigation, ie that the Chancery and Exchequer bills both be dismissed and the whole litigation—including Coke’s claim that Gwavas was a pure trustee—consolidated in one of the two courts. In this case, since Gwavas and Robert Coke of Nonsuch claimed a beneficial interest in the whole of John Coke’s personalty, unless Gwavas was found to be a pure trustee, he would quite clearly be an incompetent witness, contrary to Lord Nottingham’s 1675 decision. Paradoxical as it seems, we are now in a position to explain Lord Nottingham’s famous dicta—as irony: [I]f the Chancery do once take liberty to construe a trust by implication of law, or to presume a trust, unnecessarily, a way is opened to the Lord Chancellor to construe or presume any man in England out of his estate; and so at last every case in court will become casus pro amico.

But this case was precisely casus pro amico. Not perhaps in its usual sense of a case the outcome of which was so evenly balanced that the judge could properly decide either way,82 but in the underlying sense of the Latin. Nottingham, North and Rainsford were helping out a friend—Danby—by more than somewhat arbitrary reasoning out of line with normal Chancery procedure and with Lord Nottingham’s usual approach to ‘trust or gift’ cases. Lord Nottingham’s rhetoric about parsimony in implied, presumed or construed trusts, and about the nature of conscience in equity, ‘protests too much’: his actual decision is, in fact, dubiously consistent with principle or precedent. This is not in itself a sufficient explanation of the failure to report the decision. For judges to do favours in litigation for their friends and political colleagues was commonplace in this period: so much so, that Roger North

80

73 SS 362, 363, 3 Swanst 587, 36 ER 985. North 73 SS 362–63, 3 Swanst 587–88, 36 ER 985; Nottingham 73 SS 366, 3 Swanst 593, 36 ER 987. 82 Cf U Falk, ‘In dubio pro amico: Zur Gutachtenpraxis im gemeinen Recht’ (2000) Forum historiae iuris, at , consulted March 21 2011. 81

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reports one Whig litigant being markedly surprised by Francis North as Lord Keeper not displaying bias against him.83 Doing favours was not the same thing as overt corruption, and hence would not be a good reason for not reporting a case which decided a significant point of law. However, when the May 1676 judgments are ‘unpacked’, there is, in fact, very little law in them. Beyond Lord Nottingham’s opening and closing flourishes on implied trusts and on equity, quoted at the beginning of this chapter, the bulk of his judgment is analysis of the circumstantial evidence, to reach the conclusion that a trust was actually intended. It is, in other words, not clear how much reportable law there is in the May 1676 judgments. I shall return to this point in the final part of the chapter. The 1676 decree was not the end of the Chancery proceedings. After Nottingham’s death, Edward Coke’s guardians re-opened the claim, responding to North LK’s more or less open invitation to litigants disappointed by Lord Nottingham to re-open their cases.84 It appears from the plaintiff’s bill that the 1676 decree had not been executed at the time of Robert Coke’s death in 1679 and the suit had thereby abated.85 The new bill therefore claimed relief against the leases as well as the rentcharge. Fountaine pleaded the prior proceedings, but North LK on 30 October 1684 overruled this plea (rather than saving the benefit to hearing) on the ground that as remainderman, Edward Coke was not bound at all by the proceedings of his father as tenant for life.86 In November 1686 the counsel for the plaintiff applied ex parte to Jeffreys C for an order to allow them to use the depositions in the former cause and obtained an order nisi. The defendants showed cause, on the ground that the plaintiffs having asserted that they were not bound by the prior proceedings due to lack of privity and had this accepted by North LK overruling Fountaine’s plea, they could not claim the benefit of the proceedings either. Jeffreys agreed and revoked the order nisi. This decision

83 M Chan (ed), The Life of Lord Keeper North by Roger North (Lampeter, Edwin Mellen, 1995) 107–08. 84 GW Keeton, Lord Chancellor Jeffreys and the Stuart Cause (London, Macdonald, 1965) ch 18, discusses the effects on Jeffreys’ work as Chancellor. The invitation is reflected in the contemporary indexes at TNA PRO IND1/1640–1652 in the reappearance of cases which had disappeared from them due to reaching decree in years between 1674 and 1681, and in the decree and order books themselves increasing in length quite sharply, by around 30–50%, from C33/261 (1683–4). 85 As recited in P’s application 18 November 1686, TNA PRO C33/267 fo 442r-v. The plaintiff had put in a bill of revivor of the former proceedings in Easter Term 1683 but had been advised he could not safely proceed on it, and therefore dismissed it 16 November of that year: TNA PRO C33/259 fo 532r, 261 fo 49v. Process to compel answer to the new bill grounded on P’s title as remainderman was issued on 8 April 1684: ibid, fo 330r. 86 TNA PRO C33/263 fo 41v.

Coke v Fountaine 55 was inaccurately reported by Thomas Vernon as a decision on whether Fountaine could use the depositions.87 Jeffreys’ ruling sent the plaintiff’s lawyers on a desperate hunt for either some evidence, or some other legal argument for using the evidence from the prior proceedings. They now began to resist an early hearing and Fountaine’s counsel to seek one.88 In this way the proceedings were overtaken by the revolution of 1688. The cause finally came to hearing on 20 November 1689 before the Lords Commissioners of the Great Seal, Maynard, Keck and Rawlinson. The lack of success of the plaintiff’s later attempts to get round Jeffreys’ order on the depositions would make it relatively unsurprising that the plaintiff would not succeed, even if it were not also true that two of the three Lords Commissioners (Maynard and Keck) had acted for Fountaine in much of the preceding litigation. The court ‘saw no cause in equity to relieve the plaintiff’ and dismissed the bill.89 It does not appear that the plaintiff tried an appeal to the House of Lords, or that Edward Coke attempted to reopen the cause in Chancery when he came of age in 1697.90

(5) In Parliament On 9 January 1690, Fountaine’s appeal from the 1678 Exchequer decree reached decision in the House of Lords, which ordered a trial at law of two issues in relation to the Holte mortgage: (a) whether the money was John Coke’s money; and (b) whether, if so, John Coke ever gave it to Fountaine.91 Counsel were then heard in relation to other loans, and on 24 January Fountaine’s appeal from the Exchequer decree was dismissed in relation to these. On 4 April 1690, Coke’s cross-appeal was heard. Coke’s counsel were able in the House of Lords to re-open the fraud/undue influence claim which had been rejected on the facts by both the Exchequer in 1672 and

87 TNA PRO C33/267 fos. 442r (18 Nov), 169r (25 Nov); Coke v Fountain (1686) 1 Vern 413, 23 ER 554 (1 Eq Ca Ab 227, 21 ER 1008, merely abridges Vernon). 88 TNA PRO C33/269 fos 381v–382r (20 Feb 1688, Jeffreys confirms the former order), 647r (14 June 1688, Jeffreys refuses to extend time to examine witnesses further), 866v, 868r (14 and 18 July 1688, orders for the production of the 1669 correspondence between Coke and Fountaine), 1006v (order for the production of Gwavas’s accounts used in the Exchequer cause). 89 TNA PRO C33/271 fo 478v. 90 For the first point the absence of any entry in LJ xiv–xv, which volumes cover the period; for the second, similar absence from TNA PRO IND1/1670 for 1697–98. 91 LJ xiv 406 09/01/1690.

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the Chancery in 1676.92 Presumably on this basis the appeal was allowed in relation to the £1,000 lent to Alderman Backwell, and on 12 April in relation to other loans. At this time the words ‘by any means other than general releases’ were added to the order for trial at law.93 Since Gwavas was a mere trustee, in effect, Edward Coke (or rather his grandfather Carmarthen acting on his behalf) had now swept the board in the Exchequer litigation. Fountaine kept fighting, though—and not completely unsuccessfully. Though the House of Lords’ decree prevented John Coke’s releases being given in evidence at the trial at law in relation to the Holte mortgage, with the result that Fountaine boycotted the trial and Edward Coke’s guardians obtained a verdict by default, the judges advised that the legal title could be divested out of Fountaine only by act of parliament. An estate bill was brought in for this purpose, passed and sent to the Commons—where it was, rather unusually, defeated on second reading.94 Holte tried again by petitioning the Commons in January 1694. The petition was referred to a committee which recommended bringing in a bill to the same effect as the Lords’ bill. Both Fountaine and Gwavas’s widow petitioned against this bill on the ground that the decisions in equity and in the House of Lords were wrong. The Committee reported that the proposed bill would not prejudice the legal rights (if any) of either; but the House again rejected the bill.95 These decisions are not reported by the parliamentary diarists, so that it is not clear whether they were simply intended to disoblige Carmarthen, or reflected real doubts about the justice of the Lords’ judicial decisions in the case.

F. DOCTRINAL CONTENT

Lord Nottingham’s 1676 judgment in Coke v Fountaine states three points of law for which it has since been cited. In order of appearance, the first is the classification of trusts as either express or implied, with constructive trusts being implied from the face of the documents, and presumed trusts express. The second is the doctrine of parsimony in the use of implied or presumptive trusts. The third is the proposition that the Chancellor cannot enforce ‘such a trust, security, or agreement as is only between a man and his confessor’ and that ‘With such a conscience as is only naturalis et interna this Court has nothing to do; the conscience by which I am to proceed is 92 Historical Manuscripts Commission 11th Report, Appendix II, House of Lords MSS 1678–88, 115 at 117 (K). 93 LJ xiv 449, 4/04/1690, 462, 12/04/1690, 464, 14/04/1690. 94 LJ xiv 697–99, 22/12/1691, xv, 6–8, 30/12/1691, 16–18 5/1/1692, 23–24, 11/1/1692, 26–28, 13/01/1692; CJ x, 627–28, 14/01/1692, 657, 08/02/1692. 95 CJ xi, 53, 11/01/1694, 60, 16/01/1694, 74, 01/02/1694, 76, 02/02/1694, 137–38, 24/03/1694.

Coke v Fountaine 57 merely civilis et politica and tied to certain measures.’ The question is why these points were not reported at the time or cited before Swanston printed Lord Nottingham’s report. It will be most convenient to dispose of the ‘conscience’ point first, before proceeding to the issues of the classification of trusts and the doctrine of parsimony in implied or presumptive trusts.

(1) Conscience This issue has been studied in more detail elsewhere. Spence was, I think, the first to make the point that the distinction between the availability of remedies in Chancery on the one hand, and being ‘bound in conscience’ in the sense of the forum internum on the other, was not new with Nottingham but went back to Archbishop Morton LC in 1489 and to St German’s Doctor and Student.96 Nottingham’s distinction between ‘political’ conscience and ‘internal’ conscience in this context goes back at least to the pseudo-Egertonian Certaine Observations (1651).97 David Yale reasserted the point in his ‘Introduction’ to the first volume of Lord Nottingham’s Reports.98 Most recently, Dennis Klinck’s thorough study Conscience, Equity and the Court of Chancery in Early Modern England, moving to and fro between English religious conscience casuistry and the Chancellors, makes the point yet again.99 Nottingham appears to moderns to be a turning point in a transition from unregulated to regulated conscience, because we have had since 1725 the pseudo-reports collected by William Nelson as Rep t Finch and since Swanston some of Lord Nottingham’s own reports, which allows us to compare him as an individual Chancellor with the later Chancellors in ways which are not possible for Egerton, Coventry, the Interregnum Commissioners or Clarendon. But regularity, reporting and precedent in Chancery pretty clearly go back to Egerton, and the doctrine that a decree for the plaintiff requires that the plaintiff’s claim be in some way pleaded and proved probably dates to the same period.100 It would be better if the writers of modern equity textbooks were to cite some of the literature

96 Spence (n 9) i, 416–17, citing ‘4 Hen 7 Ellesmere 48’ = YB Hil 4 Hen VII fo 4, 5 pl 8, as cited in [Thomas Egerton, Lord Ellesmere pseud] Certaine Observations concerning the Office of Lord Chancellor (London, Henry Twyford & John Place, 1651) 48, and C St German, Doctor & Student c 18 (97 SS 107–111). 97 Egerton (n 96) 48–49. 98 73 SS xlvi–xlvii. 99 Klinck (n 5) ch 8. 100 M Macnair, ‘The nature and function of the early Chancery Reports’ in C Stebbings (ed), Law Reporting in Britain (London, Hambledon, 1995) 123; Macnair (n 75) are relatively recent arguments for these points.

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rather than citing Coke v Fountaine.101 The present point, however, is that a hypothetical contemporary reporter would not have seen Nottingham doing more, in this passage, than stating established and stable doctrine.

(2) Classification of Trusts Lord Nottingham’s classification of trusts looks odd to modern eyes: we generally distinguish between express trusts on the one hand, and implied, resulting or constructive trusts on the other. In Nottingham’s Coke v Fountaine classification, in contrast, implied trusts ‘by act or construction of law’ arise either by the operation of rules of law, as in the case of transfers in fraud of creditors, or by construction of the terms of an instrument, as in the examples he gives, where a trust is implied in order to give effect to an express disposition which would otherwise be invalid or ineffective.102 Other trusts—resulting trusts included—are express trusts established by ‘proof, or violent and necessary presumption’. As has been noticed, the application of this classification would give a very much narrower operation to section 8 of the Statute of Frauds than it was in fact given. The ‘express trust’ which is ‘declared either by word or writing’ and the declaration of which appears by presumption, looks particularly odd. Its explanation is a change in the meaning of ‘presumption’ which at the date of Coke v Fountaine and for some time before and afterwards meant not simply a legal rule which shifts the burden of proof, but also an item of (more or less strong) circumstantial evidence to be weighed in a calculus of proofs whose centre is the requirement of two witnesses or the equivalent to prove any matter.103 However, the classification in Coke v Fountaine does not in the least represent a view consistently held by Lord Nottingham. His Prolegomena does not draw these distinctions in this way; and he heard a significant number of cases which raised the issue, and both before and after Coke v Fountaine used the expressions ‘implied trust’, ‘presumptive trust’ and ‘constructive trust’ to a considerable extent interchangeably.104

101 An extreme example is Hudson (n 4), for whom Coke v Fountaine stands in for any reference to the literature—even Yale’s discussion of Nottingham and precedent in his introduction to 73 SS (xxxvii–cxxiv) in the very same volume as the report of the case. 102 Fraud: Yale (ed) (n 11) 239, citing Twyne’s Case 3 Co Rep 80b, 81b–82a; 76 ER 809, 814–15, and cf Roberts (n 77). Otherwise ineffective: Lord Nottingham 73 SS 365 cites Pitt v Pelham (1670) 1 Ch Rep 149, 21 ER 574, 1 Ch Cas 176, 22 ER 750, 2 Freem 134, 22 ER 1110, Prolegomena 240, and Lord Mohun v Lady Mohun (1671) Prolegomena 242, (323 not SP). 103 Macnair (n 75) 267–72. 104 Yale, 79 SS ‘Introduction’, 101–35 is the most convenient review.

Coke v Fountaine 59 The particular features of the case in a sense impose the shape of the classification. In the first place, it is hard to analyse any lease as a purely voluntary transaction so as to generate a presumption of resulting trust—if nothing else, there will be covenants binding on the lessee; and both the leases in question were at a rent.105 The second is that a resulting trust of these leases would not produce the result that they were attendant on the inheritance (as decreed), but that they were in John Coke the younger in fee simple. They would then descend not on Robert Coke, but on John Coke the younger’s surviving sisters in equal shares and the children of his deceased sisters per stirpes—the claim which was made and failed in Lady Astley v Fountaine. The decree only makes sense if the finding is, indeed, one of express trust proved by circumstantial evidence—and Nottingham’s classification of trusts is fitted to these particular circumstances. I have also given reasons above for supposing that classification in this way was instrumental, as allowing Lord Nottingham to ‘throw … quite out of the case’ the defendant’s substantial evidence of Coke’s animus donandi.106

(3) Parsimony in the Use of Implied and Presumptive Trusts Lord Nottingham says that ‘the law never implies, the Court never presumes a trust, but in case of absolute necessity’. Unlike the classification of trusts, this—at least in a general sense that the court should be parsimonious in relation to implied, presumptive or constructive trusts—was Lord Nottingham’s settled view. It is possible that in immediate terms this told against reporting the case: there were other reported cases in which Nottingham had made the same point, which lacked the ambiguities of Coke v Fountaine.107 Here the problem is that, though late seventeenthand early eighteenth-century lawyers shared the view that the court should be parsimonious in relation to implied, presumptive or constructive trusts, Lord Nottingham—and, in particular, Coke v Fountaine—is not given as authority for it. The probable explanation is the effect of sections 7–9 of the Statute of Frauds 1677. The Statute had been in gestation for some time when

105 Warman v Seaman (1674) 1 Freeman 306, 308; 22 ER 1227, 1228: ‘[I]f a lease for years be made without any consideration, there will be a resulting trust to the lessor; but if there be any consideration, there can be no resulting trust.’ Lord Nottingham’s report, 73 SS 197, 217, 248, at 218 appears to correspond to the hearing reported by Freeman, but Lord Nottingham’s note is more limited. The rent in the lease of Farnham Royal was clearly nominal, being slightly less than the rent due from Coke to the Crown (Lord Nottingham, 73 SS 185), but since Burghwood in Mileham was not a large manor (in medieval times half a knight’s fee), £100 pa might possibly be a market rent for the property. 106 Above, text after n 76; the passage quoted is at 73 SS 365, 3 Swanst 591, 36 ER 986. 107 Yale, passage cited above n 104, is again the most convenient review of the evidence.

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Coke v Fountaine was decided. Heneage Finch A-G (as he then was) had made the proposal in the February 1671 Commons debate on land registration.108 His 1673 first draft bill (which would have required declaration of trust of land by deed) contained the exception ‘where any Conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise or result by the implication or construction of law’; this was only lightly amended in Francis North’s 1675 second bill, and ended as section 8 of the 1677 Act.109 It must, therefore, have been clear to the profession, first, that the rules of proof of express trusts of land were going to be changed by statute in the near future, and, secondly, that there would be some exemption for imputed trusts which would require reconsideration of the scope of these. After the Act was passed, the question of the interpretation of section 8 and the relationship to imputed trusts was inevitably posed. The courts did not go down the possible road suggested by Lord Nottingham’s classification comments in Coke v Fountaine, of holding that the presumed resulting trust was a presumed express trust and therefore caught by the statute and abolished.110 They did, however, use the Statute as grounds for a markedly parsimonious approach to imputed trusts, almost reaching the point of abolition by this route.111 The same approach was argued for parol evidence of trusts dehors a will of land or otherwise offered to vary the effect of the will.112

108

79 SS 966 at 978. W Holdsworth, A History of English Law (London, Methuen & Co Ltd, 1924) VI, App I. 110 Riddle v Emerson (1682) 1 Vern 108, 23 ER 348; Anon (1683) 2 Ventris 361, 86 ER 486; Gascoigne v Thwing (1685) 1 Vern 366, 23 ER 526; Earl of Plymouth v Hickman (1690) 2 Vern 167, 23 ER 712; Anon (1692) 2 Freem 123, 22 ER 1100; Lady Bellasis v Compton (1693) 2 Vern 294, 23 ER 790. 111 Kirk v Webb (1698) 2 Freem 229, 22 ER 1177, Prec Ch 84, 24 ER 41, Somers C, Powell J, Trevor MR concurring in the decree but dissenting on the reasoning, aff’d HL (Prec Ch 88, 24 ER 42); Newton v Preston (1699) Prec Ch 103, 24 ER 50; AG v Mayor etc of Coventry (1700) 3 Madd 353, 365; 56 ER 535, 539 per Holt CJ; Shales v Shales (1701) 2 Freem 252, 22 ER 1191, though admitting there can be resulting trusts in some cases; Kinder v Miller (1701) Prec Ch 171, 24 ER 83, Kendar v Milward (1702) 2 Vern 440, 23 ER 882, Wright LK rvsg Trevor MR); Skett v Whitmore (1705) 2 Freem 280, 22 ER 1211; Ambrose v Ambrose (1716) 1 P Wms 321, 24 ER 407; Beckley v Newland (1723) 2 P Wms (1723) 182, 185; 24 ER 691, 692 per Lord Macclesfield C, though the observation may be silently influenced by the presumption of advancement; Clarkson v Hanway (1723) 2 P Wms 203, 205; 24 ER 700, 701 per Jekyll MR. 112 Oldham v Litchford (1705) 2 Freem 284, 22 ER 1214; Lord Falkland v Bertie (1696) 2 Vern 333, 337; 23 ER 814, 816 per Treby CJ (Berty v Falkland) 12 Mod 182, 183; 88 ER 1248, 1249 per Holt CJ; Sir Jeffrey Gilbert, The History & Practice of the High Court of Chancery ([early 1720s] Dublin 1756) 105–06. But not consistently; on the other side are Harris v Horwell (1708) Gilb Rep 11, 25 ER 8; Drury v Smith (1716) 1 P Wms 404, 24 ER 446 (donatio mortis causa); Jones v Nabbs (1718) Gilb Rep 146, 25 ER 102 (Nab v Nab) 10 Modern 404, 88 ER 783; Duke of Rutland v Duchess of Rutland (1723) 2 P Wms 210, 24 ER 703. 109

Coke v Fountaine 61 It is, then, unsurprising that Coke v Fountaine should not be cited on this issue. The statements of an eminent Chancellor are, no doubt, good authority; but they are not as good authority as the policy of a statute.

G. CONCLUSION

I did not set out, when I agreed to write on Coke v Fountaine, to create a ‘debunking’ piece. I thought that the case would have noteworthy things to say to us about the early evolution of implied, resulting and constructive trusts. What I have found instead is a passing decision in the course of a larger litigation, which ‘rests on its particular facts’ in quite a strong sense and was not influential in its own time, but which was resurrected in the nineteenth century and then applied to the purposes of some, but not all, treatise writers on equity and its history. Its modern citation seems to be principally a result of the tendency of textbooks to copy uncritically from older textbooks.

3 Grey v Grey (1677) JAMIE GLISTER*

A. INTRODUCTION

G

REY V GREY concerned the ownership of Gosfield Hall, a small manor house between Halstead and Braintree in Essex.1 It had been purchased by a father in the name of his son, but there was doubt over whether the son was supposed to take the house absolutely or be his father’s trustee. Although the case turned on the ownership of the house, that question was important only because of various debts that had been charged upon it by later owners, and neither plaintiff nor defendant regularly lived there. Even then the dispute was not a particularly valuable one, and it nearly settled out of court. The case was by far the most trivial of many legal troubles that the unsuccessful plaintiff, Ford Grey, would encounter during his lifetime. Yet it is a landmark in equity for two reasons: because it was the first to articulate what we now know as the presumption of advancement, and because of the effect (unintended, I will argue) that Lord Nottingham’s judgment in Grey v Grey has since had on the law and theory of resulting trusts.2

* I should like to thank Jim Davis of the Halstead Heritage Museum for his help in relation to the story of Gosfield Hall, and Neil Jones and Mike Macnair for their comments at the seminar. Dates are old style but where appropriate are given as, eg, 1671/2. References below to ‘Reports’ are to those compiled in DEC Yale (ed), Lord Nottingham’s Chancery Cases Vols I and II (London, Selden Society, 1957 and 1961). References to the ‘Prolegomena’ are to DEC Yale (ed), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge, CUP, 1965). 1 This 1677 case is reported in several places: 1 Chan Cas 296, 22 ER 809; Rep Temp Finch 338, 23 ER 185; 2 Freem 6. In the appendix to the second volume of his reports, Swanston called these accounts ‘extremely imperfect’ and reproduced a report from Lord Nottingham’s MS: 2 Swanst 594, 36 ER 742. The best account, which is also taken from Lord Nottingham’s MS, is found in Lord Nottingham’s Reports, where the first hearing of Grey v Grey appears as case 526, the full hearing as case 643, and a later hearing (essentially an appeal against the master’s calculations) as case 833. Interestingly, the evidence that the case turned on was actually adduced in an earlier action: see section D below. 2 Sir Heneage Finch was made Lord Keeper in November 1673. Two months later he was created Baron Finch of Daventry. On 19 December 1675 he was promoted to Lord Chancellor, and in 1681 he was elevated in the peerage as the Earl of Nottingham: see E Foss, Biographica Juridica (London, John Murray, 1870) 252–53. For convenience he is referred to throughout as Lord Nottingham.

64

Jamie Glister B. GOSFIELD HALL

Although small, Gosfield Hall was built to be defended. It had four wings enclosing a central courtyard, with no external windows on the ground floor and only heavily barricaded windows above. Perhaps the builder wanted to avoid Henry VIII’s tax on castles, or perhaps that tax had led to such designs becoming fashionable. Either way, the original Gosfield Hall was built by Sir John Wentworth between 1539 and 1561,3 and on his death in 1567 the house passed to his daughter Anne. Elizabeth I visited Anne there twice, and the Queen’s Gallery above the west wing’s archway is named in her honour.4 On Anne’s death the house passed to her cousin, and in 1613 it was inherited by another Sir John Wentworth.5 This Wentworth has been described as extravagant and Gosfield’s black sheep,6 and he was eventually forced to sell the house to Sir John Garrard. In the meantime Wentworth’s eldest daughter, Cecilia Wentworth,7 had been born and brought up at Gosfield. In June 1619 she married William Grey there, and a few years later William was created the 1st Baron Grey of Wark.8 From Sir John Garrard the house passed through several hands before ending up with Lord Dacre who held in right of his wife Elizabeth. On 16 January 1653/4 they sold Gosfield for £13,000 to Thomas Grey, the eldest living son of William Grey and Cecelia Wentworth. Although the case of Grey v Grey was not heard for nearly a quarter of a century, it was this purchase on which the case turned. It being accepted that William provided the purchase money, was the purchase an advancement for Thomas or was

3 Wentworth is named as the builder in J Norden, Speculi Britanniae Pars: An Historical and Chorographical Description of the County of Essex (1594, repr London, Camden Society, 1840) 37, and he inherited the manor in 1539. Elizabeth I visited the house in 1561. 4 The gallery is now called Queen Charlotte’s Gallery, presumably to fit in with the marketing of Gosfield as a Georgian manor. However, there seems little doubt that the relevant queen was actually Elizabeth I: see, eg, A Mee (ed), The King’s England—Essex (London, Hodder and Stoughton, 1942) 150. 5 Anne’s cousin was John Wentworth (b 1540). On his death in 1588 it passed to his own son John (b 1564), who died in 1613 and passed it to his son John (b 1583). This last John Wentworth was created a baronet in 1611 and died in 1631. He married Catherine Finch, daughter of Sir Moyle Finch and Elizabeth Heneage, and aunt of the Heneage Finch who was to become Lord Nottingham. So close were the families of Wentworth and Finch that two brothers and sisters married each other: Sir John Wentworth married Catherine Finch, and Cecily Wentworth married Thomas Finch, 2nd Earl of Winchilsea. Lord Nottingham and Ford Grey were therefore first cousins twice removed: Nottingham’s grandparents were Grey’s great-great-grandparents. See the family tree at the end of this chapter. 6 LM Bates and P Gorton, The Story of Gosfield Hall (London, Country Houses Association, 1988). 7 Cecilia is also variously called Cecily, Priscilla and Anne. 8 S Bolton, The Extinct Peerage of England (London, J & F Rivington, 1769) 133; P Morant, The History and Antiquities of the County of Essex (1763–68; repr Wakefield, EP Publishing, 1978) vol ii, 382. Wark was a castle in Northumberland that was also owned by the Grey family. ‘Grey’ and ‘Wark’ are used in this chapter, but various sources give spellings of ‘Gray’, ‘Werk’, ‘Werke’ and ‘Warke’.

Grey v Grey 65 Thomas a trustee for William? As we will see, Lord Nottingham held that the purchase was an advancement. But regardless of his intentions in respect of property ownership, it is pleasant to note that William bought Gosfield because it was his wife’s childhood home. There might even have been some nagging involved: William is reported as saying that ‘Gosfield was the inheritance of my son’s mother, else had better have bought Hatton Garden’.9 The son Thomas predeceased the father William, and Thomas left Gosfield to William in his will. There is some uncertainty about when Thomas died: some sources have 1654,10 whereas others have 16 February 1671/2.11 The confusion probably arises because Thomas’s will, by which he gave Gosfield to William, was dated 1654.12 However, Thomas executed a codicil of legacies on 11 February 1671/2, and his will was proved on 22 February 1671/2,13 so we can safely assume that he died between those dates. Clearly unconcerned with certainty of subject-matter, Thomas directed his trustees to hold his ‘best necklace of pearls’ for his sister, to hold his ‘fairest diamond ring’ for Sir Ellis Leighton,14 and to divide his clothes equally between his two footmen. Thomas also left a gold tankard to his nephew Ford Grey. On William’s death Gosfield passed to his other son Ralph, the 2nd Baron Grey of Wark, who died less than a year after his father. On Ralph’s death in 1675 it was inherited by his own son Ford, who as the 3rd Baron is the ‘Lord Grey’ in the case of Grey v Grey.

C. FORD GREY

Ford Grey, who died in 1701, is one of the most interesting characters of his age. Although he died as the Earl of Tankerville and Lord Privy Seal, he has been described as cowardly and perfidious,15 the basest of traitors.16 Recent assessments have tended to be kinder.17 Born in either July or December

9

Reports, case 643. WL Rutton, Three Branches of the Family of Wentworth (London, Mitchell and Hughes, 1891) 177; Morant (n 8) vol ii, 382; Bates and Gorton (n 6). 11 Morant (n 8) vol i, 47; V Gibbs in The Complete Peerage (London, St Catherine Press, 1926) vol vi, 169; Notes and Queries, 22 December 1951, 553. Morant actually gives 1671/2, while the later two sources simply give 1672. The two dates are the same: 16 February 1671 came before 25 March, so fell in the calendar year 1672. The official year was changed to 1 January–31 December by the Calendar (New Style) Act 1750 (24 Geo 2 c 23). 12 In fact 11 January 1654/5. 13 TNA Prob/11/338 image 1216. 14 Son of Dr Alexander Leighton, the Scottish puritan who in the reign of Charles I had his nose slit and his ears cut off for criticising the church prelacy. 15 Dartmouth et al, Bishop Burnet’s History of the Reign of King James The Second (Oxford, OUP, 1852) 56. 16 J Pollock, The Popish Plot (London, Duckworth & Co, 1903) 239. 17 RL Greaves, biography in Oxford Dictionary of National Biography (Online) (2004), available at , accessed 28 June 2011; C Price, 10

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1655,18 he married Mary Berkeley in summer 1674, and their daughter, also Mary, was born in May 1675. Later that year he succeeded his father Ralph as the 3rd Lord Grey of Wark, and he took his seat in the House of Lords in February 1677/8. He is famously reported as being responsible for the passing of the Habeas Corpus Act 1679, when, as one of the tellers, he deliberately miscounted the number of peers who had divided in favour of the bill. The other teller was apparently drunk and did not notice:19 Lord Grey and Lord Norris were named to be the tellers: Lord Norris, being a man subject to vapours, was not at all times attentive to what he was doing: so a very fat Lord coming in, Lord Grey counted him for ten as a jest at first: but seeing Lord Norris had not observed it, he went on with this misreckoning of ten: so it was reported to the House, and declared that they who were for the bill were the majority, though it indeed went on the other side.

As a Protestant Whig, Grey was concerned at the prospect of James, Duke of York, succeeding his brother Charles II. A member of the Green Ribbon Club, Grey plotted with the Duke of Monmouth and the Earl of Shaftesbury. In an attempt to prevent Tories being elected as sheriffs of the Corporation of London,20 Grey instigated a riot in the Guildhall in June 1682 and was fined 1,000 marks. This is particularly notable because Grey’s alibi was that he had been negotiating a sale of Gosfield Hall and so could not have been at the Guildhall at the relevant time.21 He later took part in the failed Rye House plot of 1683 to assassinate Charles and the Duke of York. Grey was captured and sent to the Tower, but he escaped and fled to the Continent when the sergeant charged with escorting him fell asleep—possibly because Grey had got him drunk.22 In June 1683 the

Cold Caleb—The Scandalous Life of Ford Grey First Earl of Tankerville (London, Andrew Melrose, 1956) 13: ‘certainly a scamp [but not] a villain’. 18 Price notes that the East Harting church register records one Ford Grey dying on 20 July 1655, and the St Paul’s, Covent Garden, register records another being born on 6 December 1655: Price (n 17) 20. Other sources have 20 July 1655 as the date of Ford’s christening: Gibbs (n 11) 169; Greaves (n 17). The hearing of Grey v Grey was delayed from June 1676 because Ford was not yet 21. Although this does not decide in favour of either date, we are told that Lord Nottingham delayed the case until November, ‘at which time he will be of age’, which suggests that Ford was born earlier than December: Reports, case 526. 19 G Burnet, Bishop Burnet’s History of his Own Time, vol ii (Oxford, Clarendon Press 1823) 250–51, quoted in WD Christie, Life of the First Earl of Shaftesbury, vol ii (London, Macmillan & Co, 1871) 335–36. Christie confirms that the story is probably true, since the number of voting peers exceeded the number of peers recorded as present in the House that day. How far the 1679 Act extended the prerogative writ of habeas corpus recently assumed great importance in the Guantanamo Bay detainee case of Boumediene v Bush 553 US 723 (2008); see T Bingham, The Rule of Law (London, Penguin, 2010) 22–23. 20 To the chagrin of Charles II, Lord Shaftesbury had earlier been acquitted of treason because the Whig sheriffs had chosen a favourable jury: Price (n 17) 72. 21 The Dictionary of National Biography (Oxford, OUP, 1973 ed) vol viii, 625. 22 G Roberts, Life of James, Duke of Monmouth (London, Longman et al, 1844) 148; compare Price (n 17) 132. Grey had an earlier escape when muskets, bandoliers, bullet moulds

Grey v Grey 67 King issued a general proclamation for the arrest of the Rye House plotters, offering a reward of £500 each. Grey did not take his wife Mary with him into hiding, but he did take her sister Harriet. The two had been conducting a scandalous affair for some time (at one point Grey spent two days locked in Harriet’s closet),23 and Grey had even been convicted of ‘debauching’ her.24 Undaunted, the two continued their liaison, and Harriet eventually joined Grey in Holland and gave birth to a child there. After two years on the Continent, and following the succession of James II, Grey returned to England as second in command of the Monmouth Rebellion. The invaders landed at Lyme Regis on 11 June 1685 but were soon defeated at the Battle of Sedgemoor on 6 July. Grey and Monmouth were captured a few days later and were taken to London. Monmouth was executed on 15 July, but Grey was temporarily—or so it seemed at the time—spared the axe. James II wrote that ‘his execution cannot be so soone by reason of some forms, wch are requisite to be complyed with’.25 The reason is not clear, but it might be that Charles II’s failure to call another Parliament after March 1681 meant that Grey’s attainder had not been properly passed.26 Other correspondence quoted by Price points to a possible defect in the original writ of outlawry,27 which may be a reference to the same thing. Ralph suggests that Grey was eventually spared at the behest of the Earl of Rochester so that the Earl could continue to enjoy the profits of Grey’s entailed estate. These had been promised to Rochester by Charles II when Grey fled.28 Grey was formally pardoned on 12 November 1685 and his title was restored in June 1686. Under William and Mary he became a Privy

and armour were found at his London house. Grey’s defence was that they were for use on his estates. Unconvinced, the Privy Council bound him over to keep the peace: Price (n 17) 128. 23 Price (n 17) 61. The relationship was utterly sensational and was even the subject of a roman à clef by Aphra Behn, Love-Letters Between a Nobleman and His Sister (London, 1684–87). Interestingly, Grey had originally been famous for being cuckolded by his friend Monmouth. 24 He was convicted in November 1682 but never punished because the Attorney General entered a nolle prosequi: The Trial of Ford Lord Grey of Werk (London, 1716) 94; State Trials vol ix, 127. 25 Letter from James II to the Prince of Orange, quoted in Price (n 17) 195. 26 Monmouth’s attainder was passed only after the invasion: 1 Ja II c 2. Entries from the Treasury Entry Book suggest that Grey was attainted in April 1684, but this could not have been by Act of Parliament: see Entry Book 11 Dec 1683 and 16 May 1684 in W Shaw (ed), Calendar of Treasury Books, Vol 8 1685–1689 (London, 1923). 27 Price (n 17) 197. 28 J Ralph, History of England (London, Cogan and Waller, 1744). In fact Grey was also required to give up most of his unentailed estate to Rochester as the price of his pardon. This was eventually restored to him by the Committee on Privileges in 1692, but that decision was then effectively reversed by 2&3 An c 12, a private Act passed after Ford had died and when Ralph, his younger brother and heir, was overseas as the Governor of Barbados.

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Counsellor and in 1695 he was created Earl of Tankerville.29 In later years Grey was First Lord of the Treasury, a Lord Justice of the Realm, and the Lord Privy Seal. He died on 24 June 1701 and was buried in East Harting in Sussex.

D. HISTORY OF GREY V GREY

The history and facts of Grey v Grey are quite complicated because they involve two separate actions by different members of the Grey family. That said, the essential question was simply whether William’s purchase of Gosfield in Thomas’s name had been an advancement or a trust. The answer to this question determined whether later gifts to junior members of the Grey family had been properly charged on Gosfield. On his death in February 1671/2, Thomas left Gosfield to his father William. However, the devise was not made to William and his heirs. Assuming an initial advancement and not a trust, this could only have operated as a life interest for William and the remainder would have automatically descended to Thomas’s younger brother Ralph. On the other hand, if Gosfield had always been held on trust then Thomas’s death would simply have meant the death of William’s trustee. In the summer of 1672, William resettled Gosfield to trustees on trust for himself for life, thereafter to raise £12,000 for his younger grandsons, Ralph Jr and Charles, and also to provide an amount for his daughter Catharine. Ralph Jr and Charles were Ford’s younger brothers and Catharine was Ford’s aunt. If Thomas had not initially held Gosfield on trust then these charges would fail as to Gosfield and would need to be transferred to William’s other estates (which already had many encumbrances). In that case Ralph Sr would have been entitled to Gosfield by descent from Thomas, William would have only ever held a life interest, and William’s settlement of 1672 would relevantly have failed. In short, the 1672 settlement required the initial purchase to have been made on trust. William, the head of the family for over 50 years, died in the summer of 1674 and the feuding began. Ralph Sr declared that his father had never been seised in fee of Gosfield and he was immediately sued by his sister Catharine and her husband Charles North, the 1st Baron Grey of Rolleston, in an attempt to protect Catharine’s interest under William’s settlement.30 29 Tankerville, or Tancarville, is a village in Normandy. Ford Grey’s ancestor John Grey was created Earl Tankerville in 1418 by Henry V for service during the Hundred Years War. That creation became extinct when the 3rd Earl was attainted in the reign of Henry VI. Ford Grey was the only holder of the title during its second creation. Charles Bennet, Ford Grey’s son-in-law, was created Earl Tankerville in its third creation in 1714. The current Earl, Peter Grey Bennet, is the 10th Earl in its third creation. 30 TNA C6/62/54.

Grey v Grey 69 This bill of complaint is where we learn that William paid the purchase money and treated Gosfield as his own even when Thomas was still alive. William would, for example, treat about its sale and collect rents in his own name. According to Catharine and Charles, Thomas was of the same mind as his father. Their bill rhetorically asked if Thomas ‘did more concern himself upon the account of any interest he had in [Gosfield] in the receipt of the rents issues and profits thereof than he did in the rents issues and profits of his father’s northern estate’.31 Ralph did not reply to the bill until January 1674/5, by which time he had already conveyed Gosfield to trustees to pay the debts and legacies in his own will. In his reply, Ralph said that he believed the Gosfield purchase money was a free gift to Thomas:32 [Ralph] verily believed the said money was a free gift of the said William Lord Grey to the said Mr Thomas Grey by way of advancement of the said Mr Grey who at the time of the said purchase was his son and heir apparent and will not … make it liable to any trust for the said William Lord Grey but the same ought to be taken and looked upon as a purchase for Mr Grey by the father to the son and not as a trust.

It is this slightly earlier Grey v Grey that really deserves a place in legal history, but it was never decided because Ralph himself died in June 1675. Ralph’s will included legacies of £2,000 for each of his younger children, Catherine, Ralph Jr and Charles; and a further amount of £4,000 initially left to Catherine by William but later a debt of Ralph as William’s executor. Under Ralph’s settlement of 1674/5 these bequests were to be charged on Gosfield. Of course, Ralph’s settlement was the opposite of William’s because it could only have worked if the initial purchase for Thomas had been an advancement. If the purchase had been a trust then Ralph’s settlement would have failed because on William’s death the most that Ralph would have received was a life interest.33 Ralph’s settlement would only have been effective if Ralph had been entitled to Gosfield by virtue of it going fully to Thomas on purchase, then on Thomas’s death by descent to Ralph, albeit subject to William for life. Soon after Ralph’s death, Ford brought a bill against his mother Lady Katherine and his father’s trustees to decide how and by whom Ralph’s debts would be paid.34 Ford wanted the initial purchase of Gosfield to

31

Ibid. TNA C6/62/53. 33 In fact the 1672 settlement was to William for life, then on trust for 99 years to raise money for William’s grandchildren and daughter Catharine, then to Ralph for life. 34 TNA C6/76/84. George, Earl of Berkeley, Ford’s father-in-law, was his next friend. At one point the two sides were close to an agreement, with Ford offering to pay £18,000 of the legacies for his younger siblings. But Ford was not of age when the case first came before Lord Nottingham, so no decree by consent could be made: Reports, case 526. When the case 32

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have been on trust because then Ralph’s settlement would have failed as to Gosfield and the £10,000 charged to the children (plus Ralph’s other debts)35 would have been payable out of Ralph’s personal estate, which he had left to Lady Katherine. Lady Katherine, on the other hand, wanted the initial purchase to be an advancement because then the amounts charged by Ralph on Gosfield would be valid and although the £12,000 charged by William would fail as to Gosfield it would still be chargeable on other lands. Importantly, Lady Katherine further argued that Ralph’s personal estate was immune from his debts and that they should only be taken from Gosfield. Indeed, this was the real point of the second Grey v Grey and all the pleadings are concerned with whether Ralph somehow attempted by the 1674/5 settlement to insulate his personal estate from his debts.36 Lord Nottingham eventually decided that William’s original purchase for Thomas was an advancement, meaning that Ralph’s settlement was valid and that on this point Lady Katherine won. However, he also decided that nothing in Ralph’s settlement precluded Ford from proceeding against the personal estate. On this point Nottingham held that Lady Katherine lost and Ford won:37 in the case of an heir, ’tis clear that he is concerned that no more of the land be sold than is necessary, and hath right in equity to demand that the personal estate may ease him, as far as it will go; from which right no implication can exclude him.

It is clear that Ford exercised this right because a year later his mother unsuccessfully asked to be allowed to keep her jewels and chamber plate.38 In contesting these items Ford might look rather petty, since Ralph’s personal estate was so small that it would not have gone far in satisfying his debts. That said, Lady Katherine also had the separate personal estates of William and Thomas Grey to support her.

returned, Ford increased the offer to £19,000 and Lady Katherine agreed to pay the remaining £3,000, but for unknown reasons the agreement fell apart: Reports, case 643. 35 These were assessed in August 1675 and included a £2,000 judgment debt, £5,020 in bonds, and £850 in smaller debts including £43 to his lawyer and £17 to the fishmonger: TNA C6/76/84. 36 TNA C6/76/62 contains the answers of Ralph’s trustees to Ford’s bill. Each denied any knowledge of any arrangement with respect to Ralph’s personal estate coming in aid of his debts. 37 Reports, case 643. Lord Nottingham thought that, in respect of heirs, an express settlement clause could exempt a personal estate from being applied to ease the land. But a clause to that effect would not be implied, and even an express clause could not exclude the rights of creditors to go against the personal estate. 38 Reports, case 833. The reasoning given is rather at odds with that in the main case. Instead of noting the absence of an express clause in Ralph’s settlement, Lord Nottingham held that Ford ought to prevail ‘because in consequence it concerns all the creditors, whose security is weakened if the assets be diminished’.

Grey v Grey 71 At the very start of the case, Lord Nottingham said that he would be ‘glad to avoid the delivery of any opinion, because I foresee that a victory on either side can never produce the peace of it, but will rather occasion great and perhaps endless breaches’.39 This proved a prescient comment as Ford’s aunt Catharine and her husband Charles, by now the 5th Baron North of Kirtling, repeatedly tried to get a share of Gosfield. They were unsuccessful in 1679,40 and gave up only when even Charles North’s younger brother, Sir Francis North LK, who succeeded Lord Nottingham, found against them in 1682/3.41

E. REASONING IN GREY V GREY

Although a few cases were mentioned in Lord Nottingham’s judgment, the decision in Grey v Grey was reached by the application of general principle rather than specific authority. The first question was whether William Grey’s payment of the purchase price meant that a trust resulted to him. If not, perhaps a trust for William could still be established separately. In modern terminology, the first question concerns the application of a presumption of advancement or a presumption of resulting trust, whereas the second question concerns the rebuttal of a presumption of advancement. This was not the language used by Lord Nottingham, and the judgment does not address the questions quite so discretely,42 but it is clear that the same issues were identified. It is worth setting out the main part of the judgment in full:43 Upon these facts the law will best appear by these steps. 1. Generally and prima facie, as they say, a purchase in the name of a stranger is a trust, for want of a consideration, but a purchase in the name of a son is no trust, for the consideration is apparent. 2. But yet it may be a trust, if it be so declared antecedently or subsequently, under the hand and seal of both parties. 3. Nay, it may be a trust, if it be so declared by parol, and both parties uniformly concur in that declaration. 4. The parol declarations in this case are both ways; the father and son sometimes declaring for, and sometimes against, themselves. 5. Therefore, there being no certain proof to rest on as to parol declarations, the matter is left to construction and interpretation of law. 6. And herein the great question is, whether the law will

39

Reports, case 643. TNA C6/35/100. 41 TNA C6/294/74. Sir Francis North was made Lord Keeper on Lord Nottingham’s death in December 1682. He was created the 1st Baron Guilford in 1683: Foss (n 2) 485. 42 Modern judges often conflate the two questions too: see, eg, Cheung v Worldcup Investments Inc [2008] HKCFA 78 [8] (Litton NPJ) [44] (Lord Scott NPJ), discussed in J Glister, ‘The Presumption of Advancement’ in C Mitchell (ed), Constructive and Resulting Trusts (Oxford, Hart Publishing, 2010) 290–91. 43 Reports, case 643. Also see the Prolegomena, ch 14, s 5, which makes it clear that resulting uses and resulting trusts are to be analysed in the same way. 40

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admit of any constructive trust at all between father and son. For if it will, the evidences of a trust must arise from the acts done by Lord William and submitted to by the son [and these] are incomparably greater and more valuable than the evidence against the trust can be, which stand chiefly upon words.44 But I am of the opinion that the law will never admit any implication of a trust between father and son: 1. For the natural consideration of blood and affection is so apparently predominant that those acts which would imply a trust in a stranger will not do so in a son. And therefore the father who would check and control the operation of nature ought to provide for himself by some instrument or some clear proof of a declaration of trust, and not depend upon any implications of law; for there is no necessity to give way to constructive trusts, but great justice and conscience in restraining such constructions. 2. The wisdom of the common law did so; for all the books are agreed on this point, that a feoffment to a stranger without a consideration raised an use to the feoffor, but a feoffment to the son without other consideration raised no use by implication to the father, for the consideration of blood settled the use in the son, and made it an advancement. How can this Court justify itself to the world, if it should be so arbitrary as to make the law of trusts to differ from the law of uses in the same case?

The extract makes clear that no trust is presumed when property is purchased by a father in the name of his son. That does not mean the son cannot be a trustee, but this would require ‘some instrument or some clear proof of a declaration of trust’. These are what Ford Grey needed, but none could be found in Grey v Grey. There being no relevant instrument, the only evidence concerned the deeds and words of the parties. On one hand William had taken profits, made leases, developed the property at his expense, instructed lawyers to draw up a settlement and treated about its sale. All of these suggest that the purchase was a trust. On the other hand William had said that Gosfield was his son’s property and, later, that he had no title but by Thomas’s will. As we have seen, Lord Nottingham found the ‘parol declarations’ evidence inconclusive. Then, turning to the evidence of William’s deeds, Nottingham said that even though such evidence certainly pointed towards a trust rather than an advancement, the evidence would not be considered. This needs careful explanation. Although the language has changed, it is submitted that Lord Nottingham was saying that the ‘presumption’ of advancement, as we now call it, cannot be rebutted merely by evidence

44 The section ‘For if it will … chiefly upon words’ was not included by Swanston. It was therefore essentially lost until Mr Yale published Lord Nottingham’s Reports with the Selden Society in 1961. This is a particularly important point, given that the passage makes it very clear that the presumption of advancement ought not to be rebutted merely by evidence that the donor did not have that intention.

Grey v Grey 73 of intention.45 A father may make his son a trustee with an instrument, and parol evidence may also be used to establish that the son took as a trustee,46 but deeds cannot be used as evidence to establish a trust. That is, the presumption of advancement is not a presumption of intention that can be rebutted by evidence inconsistent with that intention; instead it is a default position that can be departed from only on proof of a declared trust. In other words, the presumption of advancement is the absence of a presumption of resulting trust, not a counterpart of it.47

(1) Case References Lord Nottingham also referred to four cases, each of which he had earlier noted in chapter 13 of his Prolegomena.48 None of these was directly on point in relation to Grey v Grey, but part of the value of the case is that—at least at first—it distilled a coherent principle from the existing case law. The earliest, Lady Gorge’s case, does not appear to have been reported.49 However, from references in later authority it appears to decide that a resulting trust will not be found when a father purchases property in the sole name of his infant child.50 In the next, Scroope v Scroope,51 Hide CJ held that a trust would not result when the father purchased property in the joint names of himself and his son. Bridgeman LK expanded this in Windham v Windham to hold that a father’s sole receipt of rents in a father–son joint names case would not be evidence of a trust as it would be in the case of property held in joint names by strangers.52 The fourth case, 45 The evidence mentioned in Grey v Grey happened after the purchase of Gosfield. Lord Nottingham did not see this as important in Grey, but compare the rule in Shephard v Cartwright [1955] AC 431 (HL). However, that rule has been strongly criticised as failing to distinguish between later evidence that goes to pre-purchase intention (which ought to be admissible) and later evidence that goes to post-purchase intention (which ought not): E Fung, ‘The scope of the rule in Shephard v Cartwright’ (2006) 122 LQR 651. Lord Phillips MR refused to apply the strict rule in Lavelle v Lavelle [2004] EWCA Civ 223, [2004] 2 FCR 418, and the Supreme Court of Canada rejected it in Pecore v Pecore [2007] SCC 17, [2007] 1 SCR 795 [56]–[59]. 46 Although see the discussion in n 61 below. 47 See J Glister ‘Is There a Presumption of Advancement?’ (2011) 33 Sydney Law Review 39. 48 Chapter 13 of the Prolegomena is entitled ‘Where trust shall be raised by construction and implication of law, and where not’. 49 This 1634 decision is not reported but is cited in Crisp v Pratt (1634/5) Cro Car 549, 550; 79 ER 1072, 1074; Prolegomena, ch 13, s 10. It is also referred to, as Sir Sidney Mountague’s Case, in one report of Scroope v Scroope (1663) 1 Ch Cas 27, 28; 22 ER 677, 677. Mountague bought land from the Earl of Lincoln, who had bought it in the name of his daughter Lady Gorge. 50 Prolegomena, ch 13, s 10. 51 Scroope v Scroope (1663) 1 Ch Cas 27, 22 ER 677; 2 Freem Ch 171, 22 ER 1138; Prolegomena, ch 13, s 2. The report of Grey provides that after Scroope was decided a concealed deed was found, which showed that the trust had indeed been declared. 52 Windham v Windham (1668/9) 2 Freem Ch 127, 22 ER 1103; 3 Chan Rep 22, 21 ER 717; Prolegomena, ch 13, s 5.

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Strode v Strode,53 was also a joint tenant case, and in the report of Grey v Grey it is cited alongside the other two. However, an interesting comment from Bridgeman LK in Strode v Strode appears in the Prolegomena:54 But if the purchase be made in the name of the son alone, and not in the name of the father also as joint purchaser, and the father paid all the money, received all the profits, made all the leases &c, there a trust shall arise to the father by implication, and no advancement shall be intended.

Given that Strode v Strode was actually a joint tenant case, this is obiter. Nevertheless, it is interesting because if applied to Grey v Grey it would have led to a different outcome. And Bridgeman LK clearly considered the issue because he distinguished Lady Gorge’s case by noting that there the father had received profits on behalf of his infant daughter. In Grey v Grey, Lord Nottingham quickly rejected infancy or guardianship as the determining factor,55 and similarly rejected any distinction between a father taking profits in a joint tenant case and one taking profits when land was held solely by his son: 56 Plainly this difference could not be the reason of these resolutions; for had the father been joint purchaser with a stranger, and received all the profits without contradiction or suit in equity, the perceptions of profits would have been evidence of a trust, yet there it might be said still one joint tenant may by law receive all. Therefore it was the sonship, not the joint tenancy, which ruled those cases.

This all suggests that, for Lord Nottingham, the crucial factor was sonship and not joint tenancy or age. And at this point in the judgment Grey v Grey looks like a convincing and important decision: it rationalises previous case law, does so consistently with the law on resulting uses, and creates a straightforward rule that depends simply on the recipient being a child of the donor. Unfortunately, and instead of leaving it there, Lord Nottingham proceeded to create an exception that was unnecessary to decide the case, was inconsistent with the law of uses, was itself soon abandoned, and which has arguably confused the general law of resulting trusts ever since.

(2) Existing Provision There is nothing in Lord Nottingham’s Prolegomena, and nothing in the earlier cases referred to in Grey v Grey, that mentions the concept of existing

53 Strode v Strode (1672) 2 Ch Cas 196, 22 ER 908; Reports, case 211; Prolegomena, ch 13, s 13. The English Reports give the date as 1674 but the Prolegomena gives it as 1672, which must be correct as Bridgeman LK decided the case. 54 Prolegomena, ch 13, s 13. 55 ‘For a purchase in the name of an infant stranger with perception of profits &c will be evidence of a trust’: Reports, case 643. 56 Reports, case 643.

Grey v Grey 75 provision. That is, there is nothing to suggest that a distinction ought to be drawn according to whether recipient sons were already advanced when the property was purchased in their names. Lady Gorge’s case had dealt with infancy rather than unadvanced adults,57 and the reports of the other three cases do not suggest that existing provision was a consideration. Although it is perfectly possible that such cases occurred but were not reported, or were reported but those reports have not survived, I have been unable to find any case before Grey v Grey that hints at existing provision being an issue. Nonetheless, towards the end of his judgment in Grey v Grey, Lord Nottingham said:58 Lastly, the difference I rely upon is this: where the son is not at all or but in part advanced as here; there if he suffer the father, who purchased in his name, to receive the profits &c, this act of reverence and good manners will not contradict the nature of things and turn a presumptive advancement into a trust … But if the son be married in his father’s lifetime, and by his father’s consent, and a settlement be thereupon made whereby the son appears to be fully advanced and in a manner emancipated, there a subsequent purchase by the father in the name of such a son, with perception of profits &c by the father, will be evidence of a trust; for all presumption of an advancement ceases.

As we will see, the great problem with this passage is that it undermines the rest of the reasoning. Having said, in modern terms, that the law does not apply a presumption of resulting trust in a father–son case, Lord Nottingham then appears to say that sonship is simply relevant to the father’s intention. This is only a subtle difference, but it is a theoretically important one. A few months after Grey v Grey, Lord Nottingham decided the case of Elliot v Elliot.59 This was another advancement case, with the difference being that the son in whose name property was purchased was already ‘emancipated’. He had been married for 25 years and already had much property of his own. After referring to the general position, where no trust was implied between father and son, Nottingham said: 60 But on the other side to say that in no case any trust shall be implied between father and son, and that a father can never trust a son unless there be an express declaration of that trust in writing,61 seems very hard, for though the common

57

The recipient in Scroope (n 51) may also have been an infant at the relevant time. Reports, case 643. 59 Elliot v Elliot (1677) 2 Chan Cas 231, 22 ER 922; Reports, cases 690 and 751. The case was initially heard on 14 July 1677, with a fuller hearing on 22 November 1677. 60 Reports, case 751. 61 An interesting comment, which suggests that trusts of land arising on rebuttal of a presumption of advancement in fact do require writing under the Statute of Frauds. And Lord Nottingham was one of the main authors of that legislation: see GP Costigan, ‘The Date and Authorship of the Statute of Frauds’ (1912–13) 26 Harvard Law Review 329. This would only strengthen the argument that no presumption of resulting trust exists in advancement cases. 58

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law went so far in the case of uses, it was not necessary equity should do so in case of trusts. What then are the true bounds to these constructive or implied trusts between father and son? … [W]here the son hath been long married and fully advanced already … and is himself become the head of a new family, which is this present case, there whatever circumstance would prove a trust between strangers the same do also prove a trust between such a father and such a son.

The use of ‘prove’ in the last sentence is slightly confusing because it suggests that the actions of the parties are relevant at this point in the analysis. But I suggest that the passage as a whole be read as saying that the law will imply a trust over purchases made in the names of advanced children. (Indeed, in the first hearing of Elliot v Elliot Nottingham uses ‘imply’ instead of ‘prove’ when making exactly the same point.)62 Given that Lord Nottingham still saw unadvanced cases as being analogous to the law of uses, and given that Elliot v Elliot was decided on the basis of legal presumption rather than factual analysis,63 the position is rather confusing. At the very least it can be said that Nottingham thought the two should be treated differently, even though they both involve fathers and sons. Yet this difference in treatment undermined the main point: rather than see the recipient as fully entitled by virtue of his relationship with the donor, instead the law viewed that relationship as merely evidence that the father probably intended to make a gift. The disparity was highlighted by Eyre CB a century later in Dyer v Dyer:64 It is the established doctrine of a court of equity, that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove that the circumstance of one or more of the nominees, being a child or children of the purchaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence.

But compare AW Scott and WL, Fratcher The Law of Trusts, 4th edn (Boston, Little, Brown, 1989) para [443], quoted with approval by Deane and Gummow JJ in Nelson v Nelson [1995] HCA 25, (1995) 184 CLR 538, 548: ‘This reasoning is somewhat artificial; but trusts arising where the evidence shows an intention to create a trust when land is purchased in the name of a relative were considered to be resulting trusts before the enactment of the Statute of Frauds, and that statute expressly excepts resulting trusts from its operation.’ Either way, in the modern law it is indubitably the case that trusts of land found on rebuttal of a presumption of advancement do not require written evidence. 62

Reports, case 690. Unlike many of the cases, Elliot v Elliot did not involve a father receiving rents and treating the property as his own for a considerable time. There being few relevant facts, the case was essentially decided on the basis of which presumption applied: see Reports, case 751, ‘it being not a question of fact, but a question of law how far a trust was implied in this case’. 64 Dyer v Dyer (1788) 2 Cox 91, 93–94; 30 ER 42, 43 (original emphasis). 63

Grey v Grey 77 By 1788, sonship was being seen merely as evidence that a gift was probably intended (rather than as a factor precluding a presumption of resulting trust). The Lord Chief Baron went on: 65 I think it would have been a more simple doctrine, if the children had been considered as purchasers for a valuable consideration. Natural love and affection raised a use at common law; surely then it will rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have prevented some very nice distinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be of course evidence admitted on the other side. Thus it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides.

Of course, the point is that in Grey v Grey children were seen as providing consideration, or at least they were supposed to be. If in that case Lord Nottingham had not commented on the advanced/unadvanced distinction then this would have been very clear. Unfortunately the distinction was drawn, and Elliot v Elliot quickly followed.66 Sonship was now relevant as a mere ‘circumstance of evidence’. This distinction between advanced and unadvanced children was initially important. It was decisive in Elliot v Elliot, the reports of subsequent cases specifically mention children ‘unprovided for’,67 and in Lamplugh v Lamplugh it appears that argument was heard on whether or not the son was already advanced.68 That all said, the distinction lasted for only a century or so. In Smith v Baker the Lord Chancellor refused to examine whether a wife was already advanced, reasoning that the husband might

65 Ibid, 94, 44. The reference to ‘valuable’ consideration should not be taken too literally, especially since it is immediately followed by a reference to natural love and affection. The distinction is important: valuable consideration would mean that a trust interest could be defeated by a trustee father simply transferring legal title to his ignorant son (even if the father could not himself then take free title from the son: Barrow’s Case (1880) 14 Ch D 432 (CA) 445). The maxim that equity will not assist a volunteer would also have no application to family situations, meaning that Dillwyn v Llewelyn (1862) 4 De GF & J 517, 45 ER 1285 could have been decided on much simpler grounds. Only valuable consideration, which included marriage consideration but not natural love and affection, allowed the grantee to come within the exception in 13 Eliz 1 c 5 (1571) in relation to assignments made with intent to defraud creditors: see K Ryan, ‘Equity and the Doctrine of Consideration’ (1963–66) 2 Adelaide Law Review 189, 192–94; J Getzler, ‘Assignment of Future Property and Preferences’ in J Glister and P Ridge (eds), Fault Lines in Equity (Oxford, Hart Publishing, 2012). 66 It is possible that Lord Nottingham had the coming case of Elliot v Elliot in his mind when deciding Grey v Grey, although there was a gap between them. The main judgment in Grey was delivered on 26 March 1677 and the record of the first hearing of Elliot is dated 14 July 1677. The last Grey hearing, which came a few months after Elliot was decided, relied on a distinction between sons provided and unprovided for: Reports, case 833. 67 Shales v Shales (1701) 2 Freem 252, 22 ER 1191; Pole v Pole (1747/8) Ves Sen Supp 54, 28 ER 454. 68 Lamplugh v Lamplugh (1709) 1 P Wms 111, 24 ER 316.

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not think that any existing provision was sufficient.69 The same reasoning, that the court cannot accurately judge whether someone is provided for or not, was also applied in Dyer v Dyer, where Eyre CB also rejected the distinction.70 Since that case the distinction has simply been forgotten.71 This ‘clear difference’,72 which was not necessary to decide Grey v Grey, which did not exist in the old law of uses, which was not relevant to any of the cases mentioned in Grey v Grey, and which is not referred to in the Prolegomena or in earlier cases that I can find, was abolished. Unfortunately, its legacy—of the presumption of advancement being merely a presumption of intention—has remained. F. PRACTICAL DIFFERENCES73

In the modern law we speak of the presumption of resulting trust and the presumption of advancement. The exact content of the presumption of resulting trust is a matter of debate: Swadling has argued that it is a presumption that the donor declared a trust for himself;74 Birks and Chambers that the donor lacked the intention to pass beneficial title to the recipient;75 Penner that it remedies the failure of the donor to make his intention sufficiently explicit.76 The point will not be in issue in cases where the evidence is sufficient to make any presumption redundant, but in hard cases it can be important because the exact content of the presumption informs the way that evidence is used to rebut it.77 Ought the recipient to establish that the donor did intend to pass beneficial title, or is it enough to show evidence inconsistent with a declaration of trust? It is similarly important to identify the exact content of the presumption of advancement. Is it a presumption of intention to make a gift, which, on rebuttal of that

69

Smith v Baker (1737) 1 Atk 385, 386; 26 ER 246, 247. Dyer (n 64) 94, 44: ‘not very solidly taken or uniformly adhered to’. 71 While it is not surprising that the concepts of ‘a provision’ or ‘being advanced’ are not discussed in recent cases, even cases from the 19th century do not distinguish between advanced and unadvanced recipients: see, eg, Garrett v Wilkinson (1848) 2 De G & Sm 244, 64 ER 110, where the fact that the son was the parent’s solicitor was important, but not that he was clearly an emancipated adult. 72 Reports, case 643. 73 The arguments in this section are explained more fully in Glister (n 47). 74 W Swadling, ‘A New Role for Resulting Trusts?’ (1996) 16 Legal Studies 110, and, by the same author, ‘Explaining Resulting Trusts’ (2008) 124 LQR 72. 75 P Birks, ‘Restitution and Resulting Trusts’ in S Goldstein (ed), Equity and Contemporary Legal Developments (Jerusalem, Hamaccabi Press, 1992) 335; R Chambers, Resulting Trusts (Oxford, Clarendon Press, 1997). 76 J Penner, ‘Resulting Trusts and Unjust Enrichment: Three Controversies’ in Mitchell (ed) (n 42) 249–57. 77 The classic example of this is Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 (HL). 70

Grey v Grey 79 presumption of intention, leaves an underlying resulting trust? Or is it in fact a description of a default position—the legal result—with no operative presumption at all?78 There are two scenarios where this distinction might be practically important in the sense that it would determine the outcome of a case. First, where the donor’s intention is impossible to effectuate; second, where the donor has simply failed to form any view as to what should happen to the property. Consider a donor who lacks the intention to make a gift but who also lacks the intention to do anything else. Such evidence would be enough to rebut a presumption of positive intention to give because an evidential lack of such intention is inconsistent with a presumption that such intention exists. But it would not rebut under the second model because there would be no evidence that the donor intended a result different from that which the legal title indicated. Similarly if the donor intended something ineffective: the evidence of this intention would rebut under the first model, but the ineffective intention would not affect the full legal title under the second. Having said that the distinction will be practically important in such cases, I concede that those cases will rarely arise. In terms of ineffective intention, equity already classifies rather undefined or uncertain intentions into the categories of trust, gift, conditional gift, etc. Even the more problematic constructions, like revocable gifts, can be accommodated.79 In short, it is unlikely that a donor’s intention will be incapable of being translated into legal terms. Furthermore, if the problem is a failure to comply with formalities in declaring a trust of land then the doctrine in Rochefoucauld v Boustead can apply.80 It will also be rare to find that a donor had no intention whatsoever in respect of property but that they did possess capacity to transfer it.81 Chambers has identified a case where this appeared to occur: Brown v Brown,82 a decision of the New South Wales Court of Appeal. In that case

78 A presumption of intention may be called a ‘true’ presumption and a description of a default position a ‘false’ presumption: P Murphy, Murphy on Evidence, 11th edn (Oxford, OUP, 2009) 679–81. See also, to the same effect, JD Heydon, Cross on Evidence, 8th Aus edn (Chatswood, LexisNexis, 2010) para [7240]. 79 Eg Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 (HCA). See also Kauter v Hilton (1953) 90 CLR 86 (HCA) (revocable trust). 80 Rochefoucauld v Boustead [1897] 1 Ch 196 (CA), discussed further by Y Liew in ch 14 of this volume. See also Lincoln v Wright (1859) 4 De G & J 16, 22; 45 ER 6, 9; Cadd v Cadd (1909) 9 CLR 171 (HCA) 187. It is true that this doctrine will (at least probably) not protect a third party intended beneficiary, only the donor: see TG Youdan, ‘Formalities for trusts of land and the doctrine in Rochefoucauld v Boustead’ (1984) 43 CLJ 306; JD Feltham, ‘Informal trusts and third parties’ [1987] Conv 246; TG Youdan, ‘Informal trusts and third parties: a response’ [1988] Conv 267. 81 A transfer made to a volunteer when the donor lacked capacity is void, so legal title will not pass: Gibbons v Wright (1954) 91 CLR 423 (HCA) 437–38; Re Beaney (dec’d) [1978] 1 WLR 770 (ChD). I leave aside the question of stolen property. 82 Brown v Brown [1993] NSWCA 38; (1993) 31 NSWLR 582.

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Mrs Brown contributed money towards property that was put in the names of her two sons. A presumption of advancement applied but the outcome was a trust for Mrs Brown. This means that the presumption of advancement was rebutted, but Gleeson CJ apparently found it to be rebutted by evidence of a lack of intention: he noted that none of the parties ‘thought through the consequences of their transaction, or made any agreement about title to the land that was being purchased’.83 Gleeson CJ also quoted the finding of the trial judge that the mother ‘did not intend that the beneficial ownership of the property should be otherwise than in proportion to contributions made by her and the defendants to the purchase price’.84 These remarks suggest that evidential proof of a lack of intention to give was enough to rebut the presumption of advancement. That said, it might be that Brown v Brown cannot support the weight that Chambers ascribes to it.85 Although Bryson J at trial did conclude that Mrs Brown ‘did not intend that the beneficial ownership of the property should be otherwise than in proportion’, which is a negative construction, earlier he had found that Mrs Brown ‘contributed her money in the contemplation which ordinary reasonable people would have that, without giving any legal definition to their rights, the people who contributed the purchase money would have corresponding interests in the property’.86 This finding is framed in positive terms. Moreover, there is a very good reason why Bryson J concluded his judgment with a negative construction of intention: at trial the defendant sons had not raised the presumption of advancement in their favour, so the judge had treated the case as involving a presumption of resulting trust. That is, the evidence was assessed against whether a presumption of resulting trust would be rebutted. So it is hardly surprising that Bryson J concluded negatively that Mrs Brown ‘did not intend that the beneficial ownership of the property should be otherwise than in proportion’, even though he had actually found that Mrs Brown positively intended to retain an interest. There is also some authority for the position that a mere lack of intention to give is not sufficient to rebut the presumption of advancement, and interestingly the judge in that case relied on Grey v Grey. In Commissioner of Stamp Duties v Byrnes,87 an Australian case before the Privy Council,

83

Ibid, 586. Cripps JA agreed with Gleeson CJ. Brown v Brown (Bryson J, unreported, 29 October 1990) 21; cited in Brown (n 82) 587. Gleeson CJ took this to mean that Mrs Brown had formed no intention in respect of the beneficial ownership, not that Mrs Brown had positively intended the proportions to be the same. 85 Chambers (n 75) 26; R Chambers, ‘Is There a Presumption of Resulting Trust?’ in Mitchell (ed) (n 42) 283–84. Extrajudicially, Lord Millett has also said that the presumption of advancement in Brown v Brown was rebutted on the basis that the mother had not formed any intention at all: PJ Millett, ‘Restitution and Constructive Trusts’ (1998) 114 LQR 399, 401. 86 Brown (NSWSC) (n 84) 17. 87 Commissioner of Stamp Duties v Byrnes [1911] AC 386 (PC). 84

Grey v Grey 81 a wealthy father purchased several properties in the name of his sons. The father received the rents and paid for the rates and repairs. The Commissioner argued that, for the purposes of the Stamp Duties Act 1898 (NSW), the father owned the properties at the time of his death and his estate was therefore liable to tax. Argument proceeded on the basis that if an implied reservation to the father could be shown then tax would be payable under section 49(2) (A)(e). So the question was whether the father had impliedly reserved an interest in the properties within the meaning of the Act. This is a different question from whether a presumption of advancement had been rebutted, but Lord Macnaghten relied on Grey v Grey in finding that a benefit had not been reserved to the father. It was held that the father’s receipt of rents was not evidence of a retained benefit, in the same way that such evidence would not rebut a presumption of advancement. Interestingly, there was also evidence that the father had formed no view as to the ownership of the properties:88 [The son] Charles stated positively that there was no arrangement or understanding whatever on the occasion of any one of the three purchases as to what should be done with the property or the rents coming from it.

The opinion is very short, and it appears that rebuttal of the presumption of advancement was not argued by the Commissioner, so the case should be treated with caution. However, it does seem that the father’s lack of intention to give—which was freely admitted by the son—did not mean that a benefit had been retained by the father. Yet if it is proved by evidence or admission that a donor lacks an intention to benefit, and if the presumption of advancement is a presumption that such an intention exists, then the outcome in Byrnes should have been different.

G. THEORETICAL CONSIDERATIONS

The section above argued that the practical effect of the distinction between the two competing models might be small, or at least rarely seen. But it does have implications for academic theory. If the presumption of advancement is analysed as Grey v Grey suggests it ought to be, then Chambers’ recent argument about a resulting trust simply being a default position must be

88

Ibid, 390.

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wrong.89 I think it is clear from Grey v Grey,90 and from comments in Elliot v Elliot,91 that Lord Nottingham conceived of the presumption of advancement as being a description of when the presumption of resulting trust did not apply. That the presumption of advancement was then seen as a presumption of intention is something of an accident; the result of an attempt to distinguish between advanced and unadvanced children. Yet that distinction could successfully have been drawn by employing the concept of an informally-expressed express trust, which is what I suggest Lord Nottingham is referring to in the following passage from Cook v Fountain:92 All trusts are either, first, express trusts, which are raised and created by act of the party, or implied trusts, which are raised or created by act or construction of law. Again, express trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts; and that is when the Court, upon consideration of all circumstances, presumes there was a declaration, either by word or writing, though the plain and direct proof thereof be not extant. In the case in question there is no pretence of any proof that there was a trust declared either by word or in writing; so the trust, if there be any, must either be implied by the law or presumed by the Court.

Again the terminology is confusing because we now take the words to mean different things, but it is suggested that these ‘presumptive’ trusts are informally-expressed express trusts, which concern the actual conduct of the parties, whereas implied trusts are those where the law implies a trust.93 Elliot v Elliot makes clear that resulting trusts in cases of children already provided for are implied by law, but perhaps the problem of existing provision could have been addressed under the head of ‘violent and necessary presumption’.94 Then it would have been a species of express trust, dependent upon the actions of the parties. It would not affect the default position that the law itself did not imply a trust in father–child cases.

89 That is, the idea that a resulting trust is a default position (a ‘false’ presumption), and the presumption of advancement is a ‘true’ presumption: see Chambers, ‘Presumption’ (n 85). Note also that Chambers also argues in Resulting Trusts that the trust in Brown v Brown did not depend on a presumption of resulting trust but was autonomously established by evidence of a lack of intention to benefit: (n 75) 33. 90 It is made particularly clear by the short passage that was not included in Mr Swanston’s reports: see n 44 above. 91 See n 61. 92 Reports, case 500. See further ch 2 by M Macnair in this volume. 93 See P Matthews, ‘The Words Which Are Not There: A Partial History of the Constructive Trust’ in Mitchell (ed) (n 42) 7–17. 94 See also Okeover v Lady Pettus, Reports, case 347: ‘[I] did presume that a trust had been so declared by word or writing, though the same could not now be made to appear. … [S]ome presumptions are so manifest and so violent that it is impossible to resist the evidence and conviction of them.’

Grey v Grey 83 It should be admitted that one problem with this analysis is that the long passage in Grey v Grey quoted at the start of section E above does not leave much room for these informal express trusts. Instead it talks only of manifestly-proved express trusts and of implied-by-law trusts. I argued above that this passage shows that the presumption of advancement cannot be rebutted by deeds that go to evidence of intention. Of course, the reason for that is that evidence of intention is only partially relevant to the question of whether a trust was actually declared (and this is the relevant question if the starting point is the legal result). But perhaps that passage can be read as allowing evidence of deeds that would necessarily indicate that an express trust had actually been declared. Either way, it remains true that the presumption of advancement was afterwards seen as a simple presumption of intention. This shift was accidental and unnecessary, but it has had implications for the theoretical arguments surrounding resulting trusts. The notion that a presumption of advancement can be rebutted purely by showing a lack of intention to benefit strengthens the general case that resulting trusts arise because the provider of property did not intend to benefit the recipient. But if that turns out to be untrue—ie, if a lack of intention to benefit does not by itself produce a resulting trust in advancement cases—then that theory is undermined to at least some extent.95 That, in short, is the argument advanced here.

H. CONCLUSION

Ford Grey had several brushes with the law. He was convicted of debauching his sister-in-law, was fined for causing a riot, was caught with weaponry that he probably intended to use against the heir to the throne, and was nearly hanged for treason. He would be surprised, and probably a little disappointed, to learn that lawyers remember him for a comparatively trivial dispute over a house that he never lived in. Nonetheless, the quarrel over Gosfield Hall is still mentioned today: as recently as 2001, Heydon JA referred to Lord Nottingham’s ‘celebrated judgment on the presumption of advancement in Grey v Grey’.96 Indeed, Grey v Grey was the first case to use the phrase ‘presumption of advancement’,97 and even if the future of

95 It could not be stated generally that ‘the resulting trust fulfils the very important function of ensuring that unintended benefits are returned’: Chambers, ‘Presumption’ (n 85) 286. 96 Damberg v Damberg [2001] NSWCA 87, (2001) 52 NSWLR 492 [3]. See also Anderson v McPherson [No 2] [2012] WASC 19 (Edelman J). 97 Albeit that similar constructions already existed; eg, the Prolegomena, ch 13, s 2, records that in Scroope v Scroope ‘the law shall not imply a trust … but rather an advancement’.

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that doctrine is uncertain, it cannot be denied that it remains a part of the modern law.98 Grey v Grey is therefore a landmark for two contradictory reasons: first, because it rationalised the previous case law and presented a coherent principle; second, because Lord Nottingham immediately undermined that principle by introducing a distinction that was not necessary to decide the case. Although that distinction was itself soon abandoned, its initial existence caused the operation of the presumption of advancement to differ from what it would otherwise have been.

I. GOSFIELD HALL TODAY

Gosfield Hall eventually left the Grey family in March 1691 when it was sold to Sir Thomas Millington. In 1715 it was bought by John Knight, who reportedly ‘rebuilt it in a nondescript manner untrammelled by architectural precedent’.99 Luckily for Gosfield, Knight’s successor Earl Nugent made more sympathetic alterations to the house. On the Earl’s death in 1788 the House passed to his son-in-law, the Marquis of Buckingham. During Buckingham’s tenure the exiled Louis XVIII stayed at Gosfield between 1807 and 1809, and the King’s Room is named for him. The house was later owned by Samuel Courtauld (son of the founder of the fabric business), and it housed American troops during the Second World War. After the war the dilapidated Gosfield Hall was reluctantly bought by Essex County Council before being quickly sold to the Country Houses Association, who converted it into retirement flats.100 Since that body’s liquidation in 2003 the house has been refurbished and is now managed by Country Weddings Ltd. Gosfield Hall won Wedding Ideas magazine’s ‘Best Wedding Venue’ prize for 2011, and at the time of writing it can be hired for £4,000 plus VAT.

98 The presumption of advancement has been legislatively abolished in respect of married couples in New Zealand: Property (Relationships) Act 1976, s 4. Legislation exists in England and Wales and Northern Ireland that would abolish the presumption only in respect of future property dealings, but at the time of writing it has not been brought into force: see J Glister, ‘Section 199 of the Equality Act 2010: How Not to Abolish the Presumption of Advancement’ (2010) 73 MLR 807. Other countries have tended to extend the presumption relationships, rather than abolish the presumption completely: eg Nelson (n 61); Cheung (n 42). Pecore (n 45), which is the most recent decision of an ultimate appellate court, confirms that the presumption of advancement continues to exist. 99 Rutton (n 10) 178. 100 The Council had been forced to buy Gosfield because it had been made subject to a Building Preservation Order under the Town and Country Planning Act 1947.

Grey v Grey 85 APPENDIX: THE FAMILIES OF GREY, WENTWORTH AND FINCH John Wentworth

Moyle Finch =

Elizabeth Heneage

1564 – 1613

1550? – 1614

1556 – 1632/3

Cecily Wentworth = Thomas Finch John Wentworth = Catherine Finch Heneage Finch = Frances Bell d 1642

1575? – 1634

1583 – 1631

William Grey

Ralph Grey

1622? – 1671/2 ‘Purchaser’ of Gosfield

1630 – 1675 2nd B Grey

1595 – 1631

= Cecelia Wentworth

1593 – 1674 1st B Grey of Wark

Thomas Grey

1588 – 1639

1601 – 1666/7

=

Heneage Finch 1621 – 1682 1st E Nongham

Katherine Ford

Catharine Grey = Charles North

1634 – 1682?

d 1694

Ford Grey

Ralph Grey

1655 – 1701 3rd B Grey

1661 – 1706 4th B Grey

Charles Grey

1635 – 1690/1 1st B Grey of Rolleston

Catherine Grey

4 Penn v Lord Baltimore (1750) PAUL MITCHELL*

A. INTRODUCTION

E

QUITY ACTS IN personam. It has to. If it acted in rem, it would create a system of titles rivalling—and conflicting with—titles at common law. The result would be chaos. Thus, to take a simple example, when a court grants specific performance against a defaulting vendor of land, the decree does not transfer title to the land; it orders the vendor to do what is required to make such a transfer occur. At the same time, equity offers the vendor a powerful incentive to comply: failure to perform exposes him to fines or imprisonment for contempt of court. The rule that equity acts in personam is a restriction necessary for legal coherence. But restrictions can be surprisingly liberating. Since equity is not concerned with the property itself, only with the person who has an obligation as regards that property, it does not matter if the property lies outside the court’s jurisdiction. So long as the defendant is within the jurisdiction, an order can be made against him that requires him to deal with the property in a particular way. As Lindley LJ put it, in Commissioners of Inland Revenue v G Angus & Co,1 a judgment for specific performance does not transfer the property to the purchaser. This is obvious enough if we consider the jurisdiction of the Court to decree the specific performance of an agreement for the purchase of land situate in a foreign country. Ever since Penn v Lord Baltimore the Court of Chancery has exercised that jurisdiction. But why? Because it did not affect or profess to affect by its decree the property itself; it acted only in personam and compelled the vendor to do whatever was necessary to be done, either in this country or abroad, to transfer the property to the purchaser.

In treating Penn v Lord Baltimore2 as the foundation of equity’s jurisdiction over foreign land, Lindley LJ was following established opinion. The case * I would like to thank Joshua Getzler and CGJ Morse for their comments on an earlier draft. 1 Commissioners of Inland Revenue v G Angus & Co (1889) 23 QBD 579, 596. 2 Penn v Lord Baltimore (1750) 1 Ves Sen 444, 27 ER 1132.

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had been (and continued to be) used to support that proposition in successive editions of White and Tudor’s Leading Cases in Equity,3 and six years earlier, in Ewing v Orr Ewing,4 it had been cited by the House of Lords as an illustration of ‘elementary principles’.5 The case continues to be good law, although it has been subject to trenchant criticism. In particular, both judges and commentators have noted that the principle from Penn v Lord Baltimore has an uneasy relationship with the general principle of private international law that the courts will not determine title to foreign land.6 As Lord Esher MR explained, for equity to order a defendant to effect a transfer of title to land abroad, was ‘open to the strong objection, that the Court is doing indirectly what it dare not do directly’.7 ‘It seems to me,’ he continued, that [Penn v Lord Baltimore] breaks the comity of national consent, because such a contract [concerning land abroad] deals with rights resulting from the ownership of land … by the consent of nations … a dispute as to such rights is among nations to be treated as a local action to be tried in the forum rei sitae.8

This essay shows that, whilst Penn v Lord Baltimore9 undoubtedly does support the proposition that equity has jurisdiction affecting foreign land in certain circumstances, it is not a matter of ‘elementary’ principle. On the contrary, both the jurisdiction itself and the role of Penn v Lord Baltimore in establishing it are complex and controversial. The case we know as Penn v Lord Baltimore, decided in 1750, should really be known as Penn v Lord Baltimore (No 2). Penn v Lord Baltimore (No 1), decided five years earlier and reported by Ridgeway,10 covers some of the same ground as the later case (including the jurisdiction point). In addition, there is a wealth of case law on equity’s ability to affect foreign land (and foreign litigation), stretching back to the mid-seventeenth century. This case law offers a variety of reasons in support of the jurisdiction, and highlights the imperial political context in which the decisions were being made. The imperial context is in fact a strong theme in Penn v Lord Baltimore (Nos 1 and 2), but lawyers’ traditional habit of summarising and extracting pithy principles from complex texts has meant that, over time, the political nuance has been lost.

3 See, eg, F White and O Tudor, A Selection of Leading Cases in Equity, 2nd edn (London, Maxwell, 1858) 2.767; E Hewitt and J Richardson (eds), White and Tudor’s Leading Cases in Equity, 9th edn (London, Maxwell, 1928) 1.638. 4 Ewing v Orr Ewing (1883) 9 App Cas 34. 5 Ibid, at 40 (Earl of Selborne LC). 6 British South Africa Company v Companhia de Moçambique [1893] AC 602. 7 Companhia de Moçambique v British South Africa Company [1892] 2 QB 358 (CA) 404–05. 8 Ibid, 405. See further L Collins (ed), Dicey, Morris and Collins on the Conflict of Laws, 14th edn (London, Sweet & Maxwell, 2006) vol 2, 23R-021 ff, particularly 23-050. 9 Penn (n 2). 10 Pen v Lord Baltimore (1745) Ridgeway Cases temp Hardwicke 332, 27 ER 847.

Penn v Lord Baltimore 89 In short, this chapter argues that the principle for which Penn v Lord Baltimore (No 2) stands was shaped by the empire. It is a principle about the relationship between Britain and its colonies. Furthermore, the way in which the application of the principle developed was, similarly, responsive to imperial commercial needs. The imperial context also explains why the criticisms made of Penn v Lord Baltimore today did not feature in the eighteenth-century cases: there was, quite simply, no comity of nations issue in a question between Britain and one of her overseas possessions.

B. THE EVENTS

Lord Hardwicke LC’s decision in Penn v Lord Baltimore (No 2) in 1750 was merely one stage of an ongoing dispute that had been simmering since the 1680s.11 Lord Baltimore was the proprietor of Maryland, a colony created by a charter granted to the first Lord Baltimore in 1632. The colony’s territory was extensive, but was limited in two ways that would later become troublesome. First, its northern boundary was 40°N latitude; second, it contained only ‘hactenus terra inculta’, that is to say, land not cultivated by other Europeans. In 1680 William Penn petitioned Charles II for territory for a colony, and in 1681 Charles granted him a large area north of 40°N latitude. For the most part, the boundary with Maryland was to run along the line of 40°N; however, one section of the boundary was to take the form of part of a circle, radius 12 miles, drawn from the centre of the town of Newcastle. This unique boundary shape was dictated by the Duke of York, who had territory in Delaware. It probably looked quite neat on a map but, as we shall see, it proved challenging to mark out. Penn seems initially to have been satisfied with the territory granted to him, but in 1682 he was dismayed to discover that the line of 40°N had been marked inaccurately. The true line was in fact further north. This was a problem, not so much on account of the reduction in area of the territory (which was still vast) but because it potentially deprived Penn’s colony of access to the Delaware River. Penn’s solution was to obtain territory with direct sea access from the Duke of York. The Duke had been granted land on the Delaware peninsula, and in New Amsterdam, following his military successes against the Dutch in 1674. In 1682 Penn prevailed on the Duke to grant him those Delaware

11 This section draws on the accounts in J Latrobe, The History of Mason and Dixon’s Line (Philadelphia, Pa, Historical Society of Pennsylvania, 1855) and J Veech, Mason and Dixon’s Line: A History (Pittsburgh, Pa, Haven, 1857), and on the chronology of events prepared by the Penns’ counsel, William Murray, for the proceedings between the parties before the King in Council and later published in S Hazard (ed), The Register of Pennsylvania (Philadelphia, Pa, Geddes, 1828) vol 2, 200–03, 209–16.

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possessions. At this point, however, Lord Baltimore made his own claim to the Duke of York’s territories in Delaware. The Dutch settlements there, he argued, had been seized by the Dutch in 1655 from a group of Swedes and Finns, who had established themselves only in 1638. In 1632, when the Maryland charter was granted, that land had been uncultivated by Europeans, and was, therefore, part of Maryland. Penn set to work in the hope of finding evidence of some European settlement prior to 1632 in the area. His agents managed to track down several elderly settlers, whose testimony showed a Dutch settlement as early as 1624, and a Dutch purchase of the area (from native Americans) in 1629. Baltimore, realising that his position was weakening, went to London to press for a hearing before the Lords of Trade and Plantations, before things got any worse. Penn followed him, but in such a panic that he left behind the crucial depositions.12 Their Lordships deferred the hearing. Once the documents had arrived, the case was heard. In November 1685 the Lords made their report, in which they rejected Baltimore’s claim to the entirety of the Delaware peninsula and ruled that, for the avoidance of further dispute, the peninsula should be split down the middle—the western half going go Baltimore, the eastern half remaining with the Crown.13 This result effectively confirmed Penn’s position, for the Crown had granted the land to the Duke of York, who had, in turn, granted it to Penn. Baltimore had lost the battle, but he was not about to concede the war. Charles II had died shortly before the Lords’ decision, and had been succeeded by his brother, the Duke of York. Baltimore must have realised that he was unlikely to have much success through legal channels until there was a new monarch, and changed his strategy accordingly. Now he would simply use force to assert his claims on the ground, terrorising those settlers who refused to acknowledge his position. At the same time, he and his faction would adopt the most obstructive, unco-operative approach to litigation that they possibly could. The aim was to force a compromise on more generous terms than his strict charter rights allowed. The Baltimore faction pursued this strategy successfully for nearly 50 years, combining legal time-wasting with strong-arm tactics. In the 1730s a new phase began, with the Baltimores showing some signs of wanting to negotiate final boundaries. Eventually, in 1732, an agreement was reached with the Penns. For our purposes, it had three key provisions.

12 N Wainwright, ‘The Missing Evidence; Penn v Baltimore’ (1956) 80 Pennsylvania Magazine of History and Biography 227; A Dunlap and C Weslager, ‘More Missing Evidence: Two Depositions By Early Swedish Settlers’ (1967) 91 Pennsylvania Magazine of History and Biography 35. 13 The text of the Lords’ decision is reproduced in ‘Wm Penn and Lord Baltimore’, Hazard (ed) (n 11) vol 2, 227.

Penn v Lord Baltimore 91 First, the Delaware peninsula would be divided as provided by the Lords in 1685. Second, the northern boundary of Maryland would no longer be 40°N latitude; instead, a line would be drawn by reference to various landmarks. Third, part of the boundary would still consist of a circle drawn 12 miles from Newcastle. If the Penns thought that the 1732 agreement signified a fundamental change of approach by the Baltimores, they were quickly disappointed. The agreement had provided for both sides to appoint commissioners, who would work together to mark out the boundaries. The Baltimore commissioners promptly started taking unmeritorious technical points, claiming, for instance, that the provision for a circle 12 miles from the centre of Newcastle meant that the circumference of such a circle should be 12 miles. A circle of that circumference would have a radius of about four miles. Progress stalled. Meanwhile, Marylanders, led by Thomas Cressap, were coercing and terrorising settlers into renouncing their allegiance to Pennsylvania. The Baltimores then opened a further line of attack, petitioning the King in Council in August 1734 for a confirmatory grant of all the lands in Maryland’s original charter, without restriction as to prior cultivation. The Penns counter-petitioned. In May 1735 the King ordered that the matter should be adjourned until the end of Michaelmas Term, so as to give the Penns ‘an opportunity to proceed in a Court of Equity, to obtain relief upon the said articles so insisted upon by them’.14 Once that time had elapsed, either party was to be at liberty to apply to the Committee for Plantation Affairs. The Penns promptly brought a bill in Chancery for specific performance of the 1732 agreement. The Baltimore faction continued to force matters on the ground, leading the Penns to apply to the Lords for orders restraining violent disturbances. In 1737 the Lords agreed, and also prohibited the governors of either colony from granting land in the disputed area. A further order of 1738 reflected the terms of an agreed ceasefire, under which grants of vacant lands were to be permitted.

C. THE CHANCERY LITIGATION

The Penns’ bill for specific performance of the 1732 agreement made its first appearance in the law reports in relation to a hearing in 1745.15 The defendant raised three points against it. First, the claimant lacked title to sue. Second, the court lacked jurisdiction. Third, the proper parties were not before the court. The first two points failed, but the third succeeded. 14 Hazard (ed) (n 11) vol 2, 211 (taken from the chronology prepared by the Penns’ counsel, William Murray). 15 Pen (n 10).

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Dealing with the jurisdiction issue first, Lord Hardwicke LC held that the position of the parties as colonial proprietors was akin to that of feudatory lords, such as lords marchers, within England. A dispute between lords marchers was actionable in the Court of King’s Bench, since that was where a writ of error lay from the court of the marches. A writ of error lay to the King in Council from courts in ‘the provinces’,16 so it appeared at first sight that the claim should be determined by the King in Council. However, he continued, ‘a court of equity-jurisdiction is in personam, and therefore can extend it wherever the parties persons are within its jurisdiction’.17 Lord Hardwicke LC disposed of the title to sue issue briefly, and then addressed the defendant’s argument that the Attorney-General should have been made a party. He analysed the position as follows:18 [T]he most material ground for making him a party is, that this agreement which is said to concern the proprietors of the said provinces only, will and must in the course and nature of it determine and affect the private properties of the subjects of those several provinces: For here are powers of government, jurisdiction, legislation, raising subsidies, together with all kinds of military powers granted by these deeds: If, in such case, proprietory Lords are to alter the bounds of their provinces, without the privity and consent of the crown, by whom alone such powers are vested, directed and disposed, consider the inconveniences that must follow; this is no less than transferring lands into different jurisdictions, legislations, &c you subject the people to different government, different assemblies, laws, courts, taxes, to which they never assented by their delegates.

The claimants were given liberty to amend their bill. Five years later the same case was back before the same judge. In Penn v Lord Baltimore (No 2)19 the defendants now took four main points: (a)

the court had no jurisdiction—the jurisdiction was solely in the King in Council; (b) the parties had no power to settle boundaries through their own acts— such an agreement amounted to an alienation, which was beyond the proprietors’ powers; (c) the Court should not put the agreement into effect without the consent of the planters and tenants who would be affected by it; (d) the agreement was not a proper one to enforce. The fourth point had eight sub-headings: (i) the agreement was merely voluntary; (ii) the time for performance had lapsed;

16 17 18 19

Ibid, 334, 847. Ibid, 335, 847. Ibid, 336–37, 848. Penn (n 2).

Penn v Lord Baltimore 93 (iii)

the agreement effectively provided for a submission of differences to arbitration, which could not be supplied by the Court; (iv) the defendant had been imposed on, or surprised, by the terms of the agreement; (v) the defendant had ‘grossly’20 mistaken his original rights; (vi) the terms of the agreement were too uncertain; (vii) the claimant could not perform any covenant to convey territory on the Delaware peninsula, since that territory was the property of the Crown; (viii) the Court could not make an effective decree. Lord Hardwicke began his judgment with the observation that the case was ‘of a nature worthy the judicature of a Roman senate rather than of a single judge’.21 However, he continued, the relief sought was ‘the common and ordinary equity dispensed by this court’, in the form of specific performance. The immediate effect of this opening passage was one of ambiguity: the case was both suitable and unsuitable for the Court of Chancery. This was a theme to which Lord Hardwicke would return at the conclusion of his judgment. He then moved on to deal with the defendant’s first point. As in Pen v Lord Baltimore (No 1), Lord Hardwicke LC agreed that the original jurisdiction over colonial boundaries was with the King in Council. However, rather than asserting (as he had done in the earlier case) that equity’s in personam jurisdiction allowed it to intervene when the defendant was within the jurisdiction, he took a more sophisticated approach. In this case, he explained, no original jurisdiction was necessary, because the court was being asked to enforce a contractual agreement made in England. The court could not have decreed the boundaries, but it could enforce the parties’ agreement as to what those boundaries were. Rather than equity jurisdiction cutting across the jurisdiction of the King in Council, equity was now portrayed as assisting and complementing that jurisdiction. The second point was disposed of on two alternative bases. On the first alternative, the settlement of boundaries by agreement did not amount to alienation at all, for ‘the boundaries so settled are presumed to be the true and ancient limits’.22 On the second alternative, assuming that there was alienation, such alienation was permissible under the colonial charters, provided that the colonies were not ‘dismembered’. This was because the grants were in common socage, not in capite of the Crown. The defendant’s third objection also failed. The tenure of the planters would not be altered by the parties’ agreement. In that sense, the situation

20 21 22

Ibid, 445, 1133. Ibid, 446, 1134. Ibid, 448, 1135.

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was analogous to disputes between lords over the boundaries of a manor; in such cases the boundaries ‘may be settled in suits between the lords of these manors without making the tenants parties’.23 An additional reason why the planters did not need to be parties was that ‘if there is no fraud or collusion, it must be presumed to be the true limits being made between parties in an adversary interest’.24 Pausing here before we examine the defendant’s multi-part fourth objection, three themes may be highlighted in the judge’s analysis. First, the presumption that the parties’ agreement was merely ascertaining the ancient boundaries was, on the facts of this case, unreal. The Baltimores’ strategy over the course of the previous 70 years had been to force a compromise on terms more favourable to them than the original grant. Second, the legal concepts employed were strikingly feudal: tenure in socage, tenure in capite, disputes between lords of the manor. There is no sense that the colonial context was a new problem, to which such concepts were inapplicable. Third, the application of feudal analogies to the issue whether the planters should be parties concealed a deeper question. As Lord Hardwicke LC himself had highlighted, in Pen v Lord Baltimore (No 1),25 the interests of planters could not simply be disregarded. In the earlier case, those interests were protected by seeking the Attorney-General’s approval, but the terms in which Lord Hardwicke LC analysed the position—particularly his reference to settlers being subjected to taxation without the agreement of their representatives—had more radical implications. Hardwicke’s feudal analysis in the later case eliminated those revolutionary overtones, but, as with his suggestion that the agreement defined ancient boundaries, the law was closing its eyes to the political reality. The defendant’s fourth objection was also rejected. The agreement was not purely voluntary—consideration was provided by ‘the settling boundaries, and peace and quiet’.26 Lapse of time was not a problem either, particularly since the delay had not been caused by the party seeking specific performance. The agreement was not like an agreement to arbitrate, because it contained ‘distinct, independent covenants’,27 and there was no evidence of imposition. The mistake issue required closer analysis. Baltimore’s charter had specified the northern boundary of Maryland at 40°N latitude. In theory, that should have been a fixed line, but advances in mathematics and surveying over the course of the previous century had revealed inaccuracies in earlier maps and geographical calculations. Over the course of time the correct

23 24 25 26 27

Ibid, 449, 1136. Ibid, 450, 1136. Pen (n 10), text at n 18. Penn (n 2) 450, 1136. Ibid.

Penn v Lord Baltimore 95 40°N line was shown to be significantly further north than previously thought, but in 1750 it was still impossible to eliminate errors of two to three miles. The parties had, therefore, clearly been mistaken about the original location of Maryland’s northern boundary—such a mistake was unavoidable—but, as Lord Hardwicke LC pointed out, such a mistake affected only the original boundaries, by making them doubtful. The newlyagreed boundaries were not defined by 40°N. In modern terms, we would say that the mistake as to the original boundaries was not fundamental. The uncertainty issue, which had been much relied on by Lord Baltimore’s commissioners, concerned the circular section of the boundary. The circle was to be drawn from the centre of Newcastle. But where, exactly, was that? A note of impatience can be detected in Lord Hardwicke’s response: ‘[T]he middle of Newcastle, as near as can be computed must be found …’28 Carrying out this terse instruction would not prove straightforward. The defendant’s penultimate point was that the claimant lacked the ability to perform his side of the agreement in relation to ‘the lower counties’. This was the territory acquired from the Duke of York in 1682. In fact, the agreement did not call for the conveyance of any part of the lower counties, but Lord Hardwicke LC took the opportunity to assert that ‘full and actual possession is sufficient title to maintain a suit for settling boundaries’.29 ‘In cases of this kind,’ he continued,30 of two great territories held of the crown, I will say once for all, that long possession and enjoyment, peopling and cultivating countries, is one of the best evidence of title to lands or districts of lands in America, that can be … for the great beneficial advantages, arising to the crown from settling, &c, is, that the navigation and the commerce of this country is thereby improved.

Finally, we reach the point for which Penn v Lord Baltimore is remembered today—that a decree concerning foreign land can be made. Lord Hardwicke LC set out the principle crisply: ‘[T]he court cannot inforce their own decree in rem, in the present case: but that is not an objection against making a decree in the cause; for the strict primary decree in this court as a court of equity is in personam…’31 This was very much the same approach he had taken in Pen v Lord Baltimore (No 1), but he now also referred to authorities supporting his position: Richardson v Hamilton, concerning a house in Philadelphia, and the case of Lord Anglesey, which concerned Irish estates.32

28

Ibid, 453, 1138. Ibid. 30 Ibid, 454, 1138. 31 Ibid, 454, 1139. 32 No report of the judgment in either case seems to have survived. Lord Anglesey’s case in the Court of Chancery was probably ancillary to the House of Lords’ decision in Earl of Anglesey v Annesley (1741) 1 Bro HL 289, 1 ER 573. 29

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Each of the defendant’s 11 objections had failed. But, despite this, the conclusion of Lord Hardwicke LC’s judgment was rather ambivalent. The most that could be done against the defendant was to enforce the decree ‘by process of contempt and sequestration’.33 If the claimant wanted more, he would have to ‘resort to another jurisdiction’,34 that is, the King in Council. Lord Hardwicke concluded by noting that the order of the Lords of Trade and Plantations, which had sent the case to Chancery in the first place, had envisaged such further proceedings. This classic equity case was not, it seems, really suitable for the Court of Chancery after all. When Penn v Lord Baltimore (No 2) is seen in its entirety, and in the context of both the earlier proceedings and the factual basis of the dispute, the case can be seen to be far more complex and sophisticated than previously appreciated. At its most fundamental level, Penn v Lord Baltimore (No 2) was about English law’s ability to regulate a very specific kind of colonisation, which was characterised by the private enterprise of colonial proprietors exploiting territory distributed to them in London. The private status of those proprietors brought them within the jurisdiction of the ordinary courts, despite the fact that their powers and operations made them more akin to sovereigns.35 The London-based distribution of territory, using maps, rulers and compasses, was bound to cause difficulty whenever the proprietors sought to delineate their territory.36 The law’s response, as seen in Penn v Lord Baltimore (No 2), involved a sophisticated combination of analytical techniques. Some of those techniques involved analogies with existing categories. For instance, to the extent that an agreement to settle boundaries could be compared to a compromise agreement between private parties more generally, it was subject to orthodox contractual doctrines like consideration, certainty of terms, mistake, etc. To the extent that a dispute between colonial proprietors resembled a dispute between lords of manors, the colonists themselves needed to play no part. In other ways, however, Lord Hardwicke LC acknowledged that the situation was novel, and called for legal solutions driven by policy—thus, for instance, his assertion that ‘long possession and enjoyment, peopling and cultivating countries, is one of the best evidence of title to lands or districts of lands in America’. The use of equity’s in personam jurisdiction to affect foreign land lay somewhere between orthodoxy and outright novelty. The Court of Chancery had always needed to be mindful of trespassing into common law domains—hence its emphasis on the person—and equitable decrees

33

Penn (n 2) 454, 1139. Ibid. 35 Cf the treatment of the East India Company in Nabob of Arcot v East India Company (1791) 3 Bro CC 292, 29 ER 544; (1792) 4 Bro CC 180, 29 ER 841. 36 For a similar problem, concerning longitude, see State of South Australia v State of Victoria [1914] AC 283. 34

Penn v Lord Baltimore 97 concerning foreign land were not without precedent. On the other hand, as Lord Hardwicke LC realised, the decree in personam was a less than ideal remedy, since it could only provide a strong incentive to the defendant to perform his obligations. Furthermore, once the defendant was outside the jurisdiction, the equitable decree in personam could not reach him. This was particularly unsatisfactory where the security and prosperity of a large number of colonists depended on the defendant’s compliance with the court’s order. The facts of Penn v Lord Baltimore (No 2) provided a vivid illustration of the problem: the Baltimores’ track record hardly suggested that they would be chastened by a judge 2,000 miles away delivering strictures about acting according to conscience.

D. PENN V LORD BALTIMORE 1750–62

The Baltimores responded to Lord Hardwicke’s decree against them in their traditional fashion. Commissioners from Maryland and Pennsylvania were appointed to lay out the boundary together, and the Maryland commissioners were quickly taking technical points about both the radius and the centre of the circular section. They argued that the 12-mile radius had to be measured on the surface—that is, by laying the measuring chains flat on the ground. Where the terrain was undulating this would, of course, mean that the horizontal distance from the centre of the circle to its circumference was less than 12 miles. The Maryland commissioners claimed that several such surface measurements should be made, in different directions, and that an average should then be taken of the distances, measured horizontally, between the centre of the circle and the ends of those lines. That average figure should form the radius of the circle. The Pennsylvania commissioners’ response to this nonsense was a model of dignity: ‘[T]he Words [of the decree are] so clear that in Our Opinions any endeavour to explain will rather serve to obscure than illustrate them.’37 Nevertheless, the Maryland commissioners insisted, bringing the surveying work to a halt. Apparently the matter had to be referred back to Lord Hardwicke, who clarified that horizontal measurements were required.38 The dispute over the centre of Newcastle had elements of farce. John Watson, the Assistant Surveyor to the Pennsylvania Commissioners, reported in his diary for 17 September 1750 that ‘after some Debate’ it was agreed that the court house should be taken as the centre of Newcastle.39 This uncharacteristically

37 J Jordan, ‘Penn versus Baltimore. Journal of John Watson, Assistant Surveyor to the Commissioners of the Province of Pennsylvania, 1750’ (1914) 38 Pennsylvania Magazine of History and Biography 385, 399. 38 Latrobe (n 11) 25. 39 Jordan (n 37) 390.

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sensible solution was soon shown to have been based on a misunderstanding. The Maryland commissioners had handed the Pennsylvania commissioners a map with a pin-hole in it, which Watson had (naively) assumed marked the court house. In fact, Watson later reported, it was40 since discovered to be intended for the Center of Gravity of the Town of New Castle, which it seems the Maryland Surveyors and Mathematicians attempted to find in this rediculous (sic) Manner Viz—having made an exact plan of the Survey of the Town; upon a Piece of Paper, they carefully pared away the Edges by the Draught, untill no more than the Draught was left, when sticking a Pin thro it, they suspended it—thereby in different places untill they found a place whereby it might be suspended horizontally, wch Point or place they accepted as the Center of Gravity.

The death of Lord Baltimore prompted further litigation, with his son denying that he was bound by his father’s agreement with the Penns. A very shortly-reported hearing in 1755 showed that the Baltimores were still trying to drag things out,41 and there were further negotiations between the parties, which culminated in a new agreement in May 1761. It is tempting to infer some real feeling behind the formal language of the preamble to the agreement, which stated that the indenture ‘witnesseth that for putting a final and perpetual end forever to all Disputes and Differences between the Parties’, the boundaries had been agreed as set out.42 Nearly 80 years after it had begun, the dispute was finally settled. The parties appointed two surveyors, Charles Mason and Jeremiah Dixon, to lay out what would later become known as the Mason-Dixon Line. They completed their work in 1762.

E. THE LAW OF THE COLONIES

By the time of the decisions in Penn v Lord Baltimore (Nos 1 and 2), Britain was rich in colonial possessions, which had been acquired through a variety of methods, ranging from conquest to commerce. The acquisition of such possessions created (at least) two obvious legal problems, on which Penn v Lord Baltimore could shed light. First, what was the law governing those colonial possessions? Second, what role should English courts play in enforcing that law (whatever it was)? Neither question was new when Penn v Lord Baltimore was decided. Unlike other colonial powers, such as Spain, the British governments of the seventeenth and eighteenth centuries did not systematically impose their

40 41 42

Ibid, 401–02. Penn v Lord Baltimore (1755) Dick 273, 21 ER 273. C 12/17/2, 22 May 1761 (National Archive).

Penn v Lord Baltimore 99 own national law on the colonies.43 The problem was left to the courts, and by 1750 the position seemed to be reasonably clear. In a crucial anonymous case from 1722, the Privy Council was reported as having set out three propositions:44 1st, That if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England; … 2dly, Where the King of England conquers a country … the conqueror, by saving the lives of the people conquered, gains a right and property in such people; in consequence of which he may impose upon them what laws he pleases. But, 3dly, Until such laws given by the conquering prince, the laws and customs of the conquered country shall hold place.

These carefully delineated categories drew a sharp distinction between newly-settled territory (where English law applied) and conquered territory (governed by the royal prerogative). Colonists strongly preferred to be governed by English law, not for merely patriotic reasons but because it offered some individual liberties and protection against abuse of power, which government by royal prerogative did not. In other words, the application of English law was not something resented by colonists, it was positively desired.45 The application of English law in the colonies, however, did not necessarily entail the jurisdiction of English courts over colonial disputes. A complex body of rules developed, with the position of equity being particularly problematic. One view, encapsulated in the submissions of counsel to the House of Lords in Dutton v Howell, was that the jurisdiction was extensive:46 These Plantations are Parcel of the Realm, as Counties Palatine are: Their Rights and Interests are Every Day determined in Chancery here, only that for Necessity and Encouragement of Trade and Commerce, they make Plantation Lands as Assets in certain Cases to pay Debts; in all other Things they make Rules for them according to the common Course of English Equity: The Distance or the Contiguity of the Thing, makes no Alteration in the Case.

This passage would be reproduced in contemporary works of reference,47 and may well have been a common assumption. Counsel also regarded jurisdiction over Irish matters as straightforward, observing that under the 43 See generally B McPherson, ‘The Mystery of Anonymous (1722)’ (2001) 75 Australian Law Journal 169. 44 Anonymous 2 P Wms 75, 75–76; 24 ER 646, 646. 45 McPherson (n 43) 179; B McPherson, ‘How Equity Reached the Colonies’ (2005) 5 Queensland University of Technology Law and Justice Journal 102, 102–03. 46 Dutton v Howell (1693) Show 24, 33; 1 ER 17, 23. 47 T Cunningham, A New and Complete Law-Dictionary, 3rd edn (London, JF & C Rivington, 1783) vol 1, 724 (under ‘Foreign plantations’); C Viner, A General Abridgment of Law and Equity, 2nd edn (London, Robinson, Payne and Brook, 1793) vol 13, 411–12.

100 Paul Mitchell common law, a writ of error issued from Irish courts to England. Since Lord Hardwicke would rely on the Irish position in Penn v Lord Baltimore, it is important to investigate whether this assertion was correct.

(1) Ireland An examination of the equity cases concerning land in Ireland demonstrates that the position was nowhere near as clear as counsel in Dutton v Howell had suggested. Thus, in Cartwright v Pettus,48 a bill against joint tenants of lands in Ireland, asking for an account of profits and partition of the lands, was allowed as to the account but disallowed as to the partition. Lord Nottingham LC observed that the partition procedure would require the award of a commission into Ireland, which was beyond his powers. In Comes Arglasse v Muschamp,49 by contrast, a bill for relief against an annuity charged on Irish lands, which was alleged to have been obtained by fraud, was allowed. Lord Nottingham LC was clearly persuaded by counsel’s emphasis on the role of the court being ‘to relieve against frauds and cheats’,50 as he commented that ‘[t]his is surely only a jest put upon the jurisdiction of this court by the common lawyers’.51 Lord Nottingham LC also referred to Archer and Preston, where, apparently, the Court of Chancery had assumed jurisdiction in a case concerning a contract for the sale of land in Ireland. The report of Comes Arglasse v Muschamp suggested that the doctrine later relied on in Penn v Lord Baltimore was beginning to take shape. Counsel also highlighted an issue that the Lord Chancellor did not address but which highlighted a fundamental difficulty: if Irish law permitted the behaviour alleged to be fraudulent, he argued, ‘this court had then the greater reason to retain this cause, and see justice done’.52 As we shall see, the potential for equity’s in personam jurisdiction to interpose obligations on claimants which would not be imposed by the law of the place where the property was situated, has continued to trouble the courts into the present century.53 Four years after Comes Arglasse v Muschamp, in Earl of Kildare v Eustace,54 a very different approach to jurisdiction over Irish land was being espoused. Responding to a submission that Ireland was a conquered 48

Cartwright v Pettus (1675) 2 Ch Ca 214, 22 ER 916. Comes Arglasse v Muschamp (1682) 1 Vern 75, 23 ER 322. 50 Ibid, 76, 322. 51 Ibid, 77, 322. 52 Ibid, 76, 322. 53 R Griggs Group Ltd v Evans [2004] EWHC 1088 (Ch), [2005] Ch 153. See further section F(2) below. 54 Earl of Kildare v Eustace (1686) 1 Vern 419, 23 ER 559. 49

Penn v Lord Baltimore 101 country, ‘and a decree of this court may as well bind land in Ireland, as by every day’s practice it doth lands that lie in foreign plantations’,55 and a further argument that ‘the courts in England were proper expositors of the Irish laws; nay their judgment is to controul the opinion of the judges in Ireland, as upon writs of error’,56 the court assumed jurisdiction. The Lord Chancellor, Lord Beddingfield CJ and Lord Atkins CB held that ‘the judges in England were proper expositors of the Irish laws’.57 This was a jurisdiction based on political submission, not on the niceties of equitable principles. The uneasy relationship between political reality and equitable doctrine was highlighted in Sir John Fryer v Bernard.58 Here there was a motion for sequestration of the defendant’s estate in Ireland for contempt of court. The Master of the Rolls, Sir Joseph Jekyll, refused the motion, holding that ‘the process of this court could not affect any lands in Ireland’.59 A more detailed report reveals that the claimant sought to rely on a case concerning sequestration in North Carolina, where the Chancellor had said that that remedy might be available. Jekyll MR doubted that this could be correct: he recalled a bill having been brought in Parliament to extend judgments to the plantations, and that bill being rejected. The implication (it seems) was that judgments could not extend to the plantations under current law. He also hinted that such an extension would be politically problematic: ‘[A]s to the plantations, it is particularly odd as it affects the King’s sovereignty in council over them…’60 This point—that the true jurisdiction was in the King in Council—would resurface in Penn v Lord Baltimore. On appeal, Lord Macclesfield LC reversed the decision. A sequestration could be granted affecting land in Ireland, because English courts ‘have a superintendent power over those in Ireland, and therefore writs of error lie in BR [Banco Regis—ie, the Court of King’s Bench] in England to reverse judgments in BR in Ireland’.61 For other plantations, such as North Carolina, the position was different: such sequestration ‘should … be directed by the King in Council, where alone an appeal lies from decrees in the plantations’.62 As in Earl of Kildare v Eustace, the focus was on political superiority, not equitable doctrine. Thus it can be seen that when, in Penn v Lord Baltimore (No 2), Lord Hardwicke LC invoked one of his own (unreported) decisions concerning

55

Ibid, 419, 559. Ibid, 421, 560. 57 Ibid, 422, 561. 58 Sir John Fryar v Vernon (1724) 9 Mod 124, 88 ER 355; Select Cases Temp King 5, 25 ER 191; Sir John Fryer v Bernard (1724) 2 P Wms 261, 24 ER 722. 59 Sir John Fryar v Vernon (1724) 9 Mod 124, 124; 88 ER 355, 355. 60 Sir John Fryar v Vernon (1724) Select Cases Temp King 5, 6; 25 ER 191, 191. 61 Sir John Fryer v Bernard (1724) 2 P Wms 261, 262; 24 ER 722, 723. 62 Ibid, 262, 723. 56

102 Paul Mitchell estates in Ireland, it did not necessarily follow that a similar jurisdiction must exist for Pennsylvanian land. The most recent authority treated Ireland as a special case, with courts that were subject to writs of error in the King’s Bench in London. Lord Hardwicke LC could hardly have been unaware of Ireland’s unusual position, since one of his most important political speeches had argued that Ireland, as a conquered country, was automatically bound by Parliamentary legislation.63 No one had ever suggested that writs of error to the King’s Bench in London lay from all colonial courts, so any general equitable power relating to land abroad could only be found in an elaboration of general principle derived from non-Irish situations.

(2) General Principles of Jurisdiction One significant, early development in the formulation of principles governing equity’s jurisdiction over foreign land (outside Ireland) occurred in 1705, where the Court of Chancery assumed jurisdiction in a case brought by the mortgagee of the island of Sark against its owner.64 ‘The Court of Chancery,’ it was said, ‘had … a jurisdiction, the defendant being served with the process here, et aequitas agit in personam…’65 This seems to have been the first time that equity’s focus on the person (rather than the property) was expressly used to expand its jurisdiction. It was a powerful point, the full importance of which would only be fully developed by Lord Hardwicke in three cases that he decided before Penn v Lord Baltimore (No 2). In Angus v Angus,66 a bill was brought for possession of land in Scotland, for discovery of rents and deeds, and for fraud in obtaining the deeds. The defendant pleaded that the court had no jurisdiction over lands in Scotland. Lord Hardwicke LC overruled the plea in relation to the fraud and discovery, since the court would ‘act upon the person’.67 As he explained, this principle had international implications—it would apply just as well to land in France as it did to land in Scotland. The part of the bill claiming possession, however, was more problematic: all that the court could do was to order the defendant to transfer possession. A year later, in Roberdeau v Rous,68 Lord Hardwicke LC was developing similar ideas in a case concerning possession of land at St Christopher’s. Possession could not be granted because69

63 P Thomas, ‘Yorke, Philip’, Oxford Dictionary of National Biography (online edition, 2011). 64 Toller v Carteret (1705) 2 Vern 494, 23 ER 916. 65 Ibid, 495, 917. 66 Angus v Angus (1737) West Temp Hardwicke 23, 25 ER 800. 67 Ibid, 23, 801. 68 Roberdeau v Rous (1738) 1 Atk 543, 26 ER 342. 69 Ibid, 544, 342.

Penn v Lord Baltimore 103 this court has no jurisdiction so as to put persons into possession, in a place, where they have their own methods on such occasions, to which the party may have recourse; the present bill, therefore, is carrying the jurisdiction of this court further than it ever was before … Lands in the plantations are no more under the jurisdiction of this court, than lands in Scotland, for it only agit in personam.

However, that was not to say that the court was powerless: an injunction could be granted ordering the delivery of possession, just as the court could order specific performance of a sale of plantation estates.70 The final case, Foster v Vassall,71 developed the ideas a stage further. The bill was brought against executors, by the testator’s son, praying for an account and payment. The defendant pleaded that both parties resided in Jamaica; the claimant had already sued him in the Jamaica Court of Chancery in 1745, where the defendant had put in an answer and account; furthermore, all relevant matters lay in Jamaica. Lord Hardwicke LC overruled the plea on the ground that it was technically defective, and acknowledged that, had the pleading been formally sound, it would have raised a ‘considerable question’.72 His description of the problem hinted at how he would have resolved it:73 The different courts of equity are held under the same crown, though, in different dominions, and therefore, considering this [ie the Court of Chancery in Jamaica] as a court abroad, the point of jurisdiction is the same as if in Ireland; and it is certain where the provision is in England, let the cause of suit arise in Ireland, or the plantations, if the bill be brought in England, as the defendant is here, the courts do agere in personam, and may, by compulsion of the person, and process of the court, compel him to do justice.

Such an approach, he acknowledged, might well result in the ‘inconvenience’74 of two suits concerning the same matter. Lord Hardwicke LC did not elaborate further, but it is perhaps implicit in the passage quoted above that he did not envisage the two suits causing anything more than ‘inconvenience’: since both courts were applying the same equity, both should reach the same result. Lurking in the background was the question of what should happen if the laws of the country where the land was situated reached a conclusion different from English equity. Some indication of how Lord Hardwicke LC would have answered this question may be gleaned from his decisions on the use of the writ ne exeat regno against foreigners. The writ prevented the defendant from leaving the jurisdiction of the court so as to evade Chancery process and deprive the

70 71 72 73 74

Ibid, 544, 342. Foster v Vassall (1747) 3 Atk 587, 26 ER 1138. Ibid, 589, 1139. Ibid. Ibid, 589, 1140.

104 Paul Mitchell claimant of his remedy.75 In Pearne v Lisle,76 the defendant was being sued for rent due for the hire of 14 slaves at Antigua, and for redelivery of the slaves. In discharging a previous order granting the writ, Lord Hardwicke LC commented that:77 The person of the defendant is amenable, for he is a native of Antigua; he is going to Antigua: his effects, and likewise the Negroes, are there … It is a colony subject to England, and the plaintiff may have justice done him in the Courts there.

He elaborated on this further in Robertson v Wilkie:78 It is a reason that generally prevails with me not to grant such writ, where one of the parties corresponding or dealing lives out of the kingdom, and the transactions are on the faith of having justice in the place where the parties respectively reside. And so it has been held where one lived in England, and the other in one of the plantations or settlements belonging to England, which are governed by the same laws, except some few peculiar to the place.

However, he continued, these reasons did not hold good where an action between two merchants would be held either at Gibraltar or Minorca if the defendant was allowed to leave England. In Gibraltar, ‘the jurisdiction is not adapted to determining property and accounts between merchants’. In Minorca, the ‘Spanish method of justice prevails’.79 Lord Hardwicke’s reasoning in Robertson v Wilkie was later doubted by Lord Thurlow LC: ‘justice,’ he observed, ‘would be equally certain’,80 whether at Gibraltar or Minorca. That criticism, however, seems to miss Lord Hardwicke’s point. For Hardwicke, the certainty of justice somewhere, under some legal system or other, was not sufficient for the Court of Chancery to relinquish its hold over the defendant. What was needed, as in Pearne v Lisle, was ready access to justice according to English law. If that was not available, the Court of Chancery would step in.

(3) Pennsylvania As it happened, Lord Hardwicke had recently acted on the understanding that the Court of Chancery would intervene if justice according to English law was unavailable, when, in Penn v Lord Baltimore, he ordered specific performance that had to take place in Pennsylvania. At that time Pennsylvania had 75 See generally J Beames, A Brief View of the Writ Ne Exeat Regno, as an Equitable Process, 2nd edn (London, Pheney, Sweet, Maxwell & Stevens, 1824); on the application of the writ to foreigners, see 64–68. 76 Pearne v Lisle (1749) Amb 75, 27 ER 47. 77 Ibid, 77, 48. 78 Robertson v Wilkie (1753) Amb 177, 177; 27 ER 119, 119. 79 Ibid, 177, 119. 80 Atkinson v Leonard (1791) 3 Bro CC 218, 223; 29 ER 499, 502.

Penn v Lord Baltimore 105 no courts of equity, it only had courts of common law.81 Those common law courts would later incorporate various aspects of equity, but the first reported case to begin that process of incorporation did not occur until 1768.82 Even when large parts of equity had been accepted by the Pennsylvania courts, they were still unable to devise a common law replicant of specific performance: the closest equivalent was an award of conditional damages, which overvalued the property in question in the hope that the defendant would be persuaded to return the property rather than overpay for it.83 It is important to emphasise that Pennsylvania’s lack of an equity court was not an accident, nor an oversight. Penn’s charter had granted him the right to set up such a court, but he had decided not to, apparently being struck by the happy position of the native Americans, who were not ‘perplexed by Chancery suits’.84 Penn’s decision was also probably influenced by Chancery’s reputation for arbitrariness. Lord Nottingham’s attempts to place equity on a more principled basis would improve its reputation in time, but in the early 1680s, when Penn’s decision was being made, Nottingham’s judgments had hardly been reported at all.85 The General Assembly of Pennsylvania seems to have taken a more optimistic view of equity, and made several attempts to create equity jurisdictions. All of these attempts, however, were repealed by the British Parliament, until, in 1720, a Court of Equity was finally created. The Court sat for 16 years, but was then effectively abolished by the colonists. The reasons for the abolition are striking: the objection was not to the content of equity doctrine in itself but to the method of administering it. As was typical of equity in the colonies,86 it was not administered by specialist Chancery judges, steeped in equity principles; it was administered by the Governor, either alone or in Council. The governors claimed this right on the basis that, like the Lord Chancellor in England, they held the great seal for their respective provinces.87 Whilst that might make the Governor’s

81 See generally S Fisher, ‘The Administration of Equity Through Common Law Forms’ (1885) 1 LQR 455; S Liverant and W Hitchler, ‘A History of Equity in Pennsylvania’ (1932– 1933) 37 Dickinson Law Review 156. 82 Swift v Hawkins (1768) 1 Dallas 17. 83 Fisher (n 81) 461–62. The conditional damages technique closely resembles the classical Roman solution to the same problem: B Nicholas, An Introduction to Roman Law (Oxford, Clarendon Press, 1975) 101–02; D Johnston, Roman Law in Context (Cambridge, CUP, 1999) 117–18. 84 Fisher (n 81) 455; Liverant and Hitchler (n 81) 158. Penn also envied their freedom from bills of lading. 85 B McPherson, ‘How Equity Reached the Colonies’ (2005) 5 Queensland University of Technology Law and Justice Journal 102 at 105; D Yale, ‘Finch, Heneage’, Oxford Dictionary of National Biography (n 63). 86 McPherson (n 85) 106–09. 87 Ibid, 106. See further J Smith and L Hershkowitz, ‘Courts of Equity in the Province of New York: The Cosby Controversy, 1732–1736’ (1972) 16 American Journal of Legal History 1 at 9–11.

106 Paul Mitchell administration of equity technically defensible, the reality of the King’s representative sitting as a judge with special responsibility for property was unacceptable to many colonists. It was exactly the kind of arbitrary royal power that they had travelled halfway round the world to escape. The pressure began to build in Pennsylvania from 1726, with the colonists arguing that the Court of Chancery was contrary to the guarantee in Pennsylvania’s Charter of Privileges that no one could be required to answer a complaint relating to property before the Governor or Council.88 Meanwhile, events in the neighbouring province of New York highlighted the potential for abuse of the Governor’s Chancery powers,89 which seem to have spurred on the Pennsylvania Assembly, in 1735, to pass a resolution that the Court of Equity was, indeed, contrary to the Charter of Privileges. The Attorney-General and Solicitor-General in England were asked for their view, and replied that the Court was not contrary to the Charter. The Assembly responded by introducing a bill to remove all Chancery powers from the Governor, but in the meantime the Governor had died, and his successor made no attempt to exercise any Chancery powers. The history of equity in eighteenth-century Pennsylvania casts light on Penn v Lord Baltimore in two ways. First, it shows that the authority which Lord Hardwicke referred to in support of equity’s jurisdiction over land in Pennsylvania—Richardson v Hamilton (1733)—was decided under conditions very different from those in Penn v Lord Baltimore. In Richardson specific performance was theoretically available from the Pennsylvania Court of Equity; by the time of the decision in Penn it was not. So, whilst Richardson could be interpreted as an English court applying the same equity that applied in Pennsylvania, Penn could not be justified on that basis. However, although no record of a judgment in Richardson v Hamilton has survived, it seems to have been a more complicated case than Lord Hardwicke’s brief reference to it suggested. The case was concerned with confiscation of property under a private act of the Pennsylvania Assembly, which had subsequently been disallowed by an Order in Council.90 The claimants failed to regain possession in Pennsylvania, but were granted an order for delivery of possession in the Court of Chancery in England. It is not entirely clear why the claimants had not previously applied to the Court of Equity in Pennsylvania, especially since the Governor (who would have sat in the case) had some sympathy with the

88

Liverant and Hitchler (n 81) 163–64. Smith and Hershkowitz (n 87). 90 J Smith, Appeals to the Privy Council from the American Plantations (New York, Columbia University Press, 1950) at 628–31. Additional background on the case may be found in P Wilson Coldham, ‘Clarke, Curtis, and Richardson, of Barbados, Delaware and Philadelphia’ (1973) 61 National Genealogical Society Quarterly 3. 89

Penn v Lord Baltimore 107 claimants’ complaints. Part of the explanation may well have been that the Richardsons realised that any equity suit in Pennsylvania was likely to be ineffective. By 1733 the Governor’s Chancery powers were being questioned, and for him (effectively) to overrule the Pennsylvania Assembly would have almost certainly precipitated a crisis. Certainly the Richardsons’ adversary, Alexander Hamilton, could have been relied upon to make political capital out of any such decree by the Governor, and indeed to have made a point of disobeying it: his republican sympathies were well known, and he would soon be demonstrating his formidable combination of political and legal abilities in New York, in the trial of the radical printer, Peter Zenger.91 The Richardsons may well have chosen London as the venue for their Chancery claim in an attempt to exert pressure on Hamilton, whilst simultaneously limiting his opportunity to score political points. Unfortunately there seems to be no record of the judgment of Lord King LC, so we have no way of knowing whether he gave any consideration to the fact that the claimants were not availing themselves of a theoretically available, but practically unattractive, local equitable remedy. The second way in which the Pennsylvania position casts light on Penn v Lord Baltimore is by showing the strikingly political dimension of the court’s decision to grant specific performance. The Pennsylvania colonists had decided to do away with their court of equity, because it smacked of remote royal interference; yet here was a judge, thousands of miles away, giving orders for the demarcation of their territory. Chancery doctrines were being invoked to justify central control over colonial land, despite the colonists’ emphatic local rejection of those doctrines. The irony may not have been lost on William Penn’s descendants, that they were having to rely on an institution that Penn himself had decided they were better off without.

F. THE APPLICATION OF PENN V LORD BALTIMORE

(1) Expansion In the 50 years or so after the decision in Penn v Lord Baltimore, the doctrine that equity acted in personam and could, therefore, affect property outside the jurisdiction, took root to such an extent that Lord Eldon LC, in 1804, could assert that ‘[t]here is no doubt of the jurisdiction upon contracts as to land in the West Indies, if the persons are here’.92 As in Penn v Lord Baltimore itself, the primary focus was on colonial land; as the

91 92

Smith and Hershkowitz (n 87) at 41. Jackson v Petrie (1804) 10 Ves Jun 164, 165; 32 ER 807, 807.

108 Paul Mitchell colonies expanded, so did the practical importance of the principle itself. Colonial expansion also brought the principle to bear on legal regimes where it was not quite so easy to distinguish between in rem and in personam effect. Thus, for instance, six eminent counsels’ advice was sought by the East India Company as to whether Lord Clive could sue in Chancery to enforce a jaghire of Indian land.93 Lord Hardwicke’s son, Charles Yorke, emphasised the in personam principle, but seems to have been in a minority in concluding that the jaghire was like a claim for rent, which raised no issue of title.94 Thurlow, who gave the most elaborate opinion the other way, took the view that95 if the contract were concerning a real subject, always extant in a foreign independant [sic] country, always in the actual disposition of their justice, I should think the English court of chancery ought not to interpose in it … [T]he court of chancery here cannot strip a rent of that relation which in point of title it bears to the land, so far as to decree upon it, any more than an action could be maintained here for the use and occupation of lands in France.

The in personam principle also opened the way for injunctions restraining proceedings in other jurisdictions.96 The possibility of such injunctions had initially been denied, despite the bar’s opinion to the contrary,97 but by the early nineteenth century there were signs that judicial attitudes were changing. Thus, in Harrison v Gurney98 Lord Eldon LC granted an injunction restraining proceedings by trustees in Ireland, although the precise basis for doing so was not discussed. Three years earlier, in Kennedy v Earl of Cassillis,99 the same judge had refused an injunction sought against the Court of Session, on the basis that such an injunction could never be enforced100—clearly an injunction addressed to the court itself was not the solution. The principled basis for an injunction restraining proceedings elsewhere was finally articulated by Lord Brougham LC in Lord Portarlington v Soulby.101 There, relying expressly on Penn v Lord Baltimore, Lord Brougham LC explained that the jurisdiction was102 grounded, like all other jurisdiction of the Court, not upon any pretension to the exercise of judicial and administrative rights abroad, but on the circumstance of

93 A jaghire was (typically) a short-term grant of land by an Indian ruler to a successful military commander, made in recognition of military service. 94 F Hargrave, Collectanea Juridica (London, W Clarke, 1810) vol 1, 247–48. 95 Ibid, 254–55. Cf St Pierre v South American Stores (Gath and Chaves) Limited [1936] 1 KB 382. 96 D Altaras, ‘The anti-suit injunction: historical overview’ (2009) 75(3) Arbitration 327. 97 Love v Baker (1665) 1 Ch Ca 67, 22 ER 698. 98 Harrison v Gurney (1821) 2 Jac & W 563, 37 ER 743. 99 Kennedy v Earl of Cassillis (1818) 2 Swan 313, 36 ER 635. 100 Ibid, 322, 638. 101 Lord Portarlington v Soulby (1834) 3 My & K 104, 40 ER 40. 102 Ibid, 108, 41–42.

Penn v Lord Baltimore 109 the person of the party on whom this order is being made being within the power of this Court.

The most significant application of Penn v Lord Baltimore concerned situations where the law of the place where the land was situated was different from English law. As we have seen in the previous section, the decision in Penn v Lord Baltimore itself could only be justified on the assumption that the Court of Chancery in London could give a remedy despite no similar remedy being available in the place where the land was situated. However, the point had not been expressly considered, and in Pike v Hoare,103 decided 13 years after Penn v Lord Baltimore, a very different approach was taken. The claim was, essentially, a challenge to the validity of a will made by the claimant’s brother; all the land affected by the will lay in Pennsylvania. Lord Northington LC regarded the latter fact as crucial:104 I build my opinion materially on the fact of the lands lying in Pennsylvania, for a will of lands lying in any of the colonies is not triable in Westminster Hall; if it were, it would be introductive of great confusion, and be very detrimental to the colonies. We have colonies and factories in the four quarters of the world, and each colony and factory have distinct laws of their own. Judges in Westminster Hall are not acquainted with the laws of the several colonies and factories; they are local. In Penn v Lord Baltimore, Lord Hardwicke made the distinction, and said, it was the contract that gave the court jurisdiction in that case; the principles of equity being the same in all places.

The bill was refused. Although Lord Northington LC claimed to be acting on the principles set out in Penn v Lord Baltimore, his reasoning could not be supported by that case. The principles of equity were not the same in Pennsylvania and England—Pennsylvania provided no specific remedies, England did. But Lord Northington LC was not mistaken in attributing the idea that equity was the same in all places to Lord Hardwicke: Hardwicke had said almost exactly that in Foster v Vassall.105 Lord Northington LC was, perhaps, trying to return the law to the narrower position that Hardwicke had espoused before Penn v Lord Baltimore. That earlier position certainly had the advantage of eliminating clashes between the courts of different jurisdictions, but it would have effectively limited the Penn v Lord Baltimore principle to British colonies where equity had not been modified. Had Lord Northington LC’s view prevailed, we would hear little of Penn v Lord Baltimore today.

103 104 105

Pike v Hoare (1763) 2 Eden 182, 28 ER 867; Amb 428, 27 ER 286. (1763) 2 Eden 183–84, 28 ER 867. (1747) 3 Atk 587, 26 ER 1138. Discussed above, text at n 73.

110 Paul Mitchell However, Lord Northington’s view did not prevail. In Lord Cranstown v Johnston,106 Arden MR explicitly established the crucial principle that even if the law of the place where the land was situated would refuse a remedy, equity could intervene—relying on the in personam jurisdiction—to prevent fraud. Thus, where a creditor had forced a judicial sale of the debtor’s estate in St Christopher’s (in the West Indies), and had acquired that estate at an under-value, an equitable remedy was available, despite the fact that, under the statute law of St Christopher’s, the sale was unimpeachable. Arden MR’s analysis was forthright:107 [W]ith regard to any contract made or equity in this country respecting lands in a foreign country, particularly the British dominions, this Court will hold the same jurisdiction, as if they were situated in England … [The creditor] has gained an advantage, which neither the law of this country nor of any other country would permit. I will lay down the rule as broad as this: this Court will not permit him to avail himself of the law of any other country to do what would be gross injustice.

This emphasis on English law concepts of fraud and contract would be reaffirmed by Cottenham LC in In re Courtney, ex parte Pollard,108 with a significant caveat:109 If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment, the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities.

As the editors of Dicey, Morris and Collins point out, it is not entirely clear how stringent a prohibition is needed,110 but from the facts of Lord Cranstown v Johnston (which Lord Cottenham LC cited), it is clearly insufficient to prevent a Chancery decree to show that the foreign law makes no provision for fraud. Similarly, the facts of In re Courtney, ex parte Pollard concerned an equitable mortgage of land in Scotland; Scots law did not recognise equitable mortgages, but that did not prevent the English Court of Chancery making an in personam order to enforce one.

106

Lord Cranstown v Johnston (1796) 3 Ves Jun 170, 30 ER 952. Ibid, 182–83, 959. 108 In re Courtney, ex parte Pollard (1840) Mont & Ch 239. 109 Ibid, 250–51. 110 L Collins (ed), Dicey, Morris and Collins on the Conflict of Laws, 14th edn (London, Sweet & Maxwell, 2006) vol 2, 23-045. 107

Penn v Lord Baltimore 111 The disregard for foreign law shown in Lord Cranstown v Johnston and In re Courtney, ex parte Pollard troubled Joseph Story, who observed that111 the doctrine of the English Courts of Chancery, on this head of jurisdiction, seems carried to an extent, which may perhaps, in some cases, not find a perfect warrant in the general principles of international public law; and, therefore, it must have a very uncertain basis, as to its recognition in foreign countries, so far as it may be supposed to be founded on the comity of nations.

The Lord Cranstown case, he felt, could only be justified by the fact that all the parties were British subjects, and the original judgment was on a British island.112 Such caution, however, did not prevail, and during the course of the nineteenth and twentieth centuries, the doctrine from Penn v Lord Baltimore was applied to property all over the world, from Scottish cottages,113 to Shanghai houses114 and Brazilian sugar plantations.115 As Francis Palmer was quick to recognise, and the courts later acknowledged,116 the in personam principle had a valuable commercial aspect: it allowed owners of land abroad to raise finance, without having to go to the trouble and expense of having to satisfy local legal requirements; and it also made loans secured on foreign land more attractive to lenders, who were not obliged to enforce their rights in foreign courts. Thus, in the fourth edition of his Company Precedents, Palmer stated that117 land situate abroad, but belonging to a company registered here, can in most cases be effectually charged in favour of debenture holders or their trustees, without regard to the formalities required by the local law in relation to transfers or mortgages. For it was settled long since that the Court of Chancery, by virtue of its jurisdiction in personam, would, as between persons resident here, enforce equities in regard to foreign land. Penn v Lord Baltimore …

Palmer also recognised that the equitable interest of the creditor was not perfectly protected, in the sense that it might be displaced by other charges satisfying the relevant foreign law. ‘But,’ he continued, ‘this is a risk which in may cases the parties are contented to run; the principal object being to give the debenture holders a preference over general creditors of the company, and

111 J Story, Commentaries on the Conflict of Laws, 5th edn (Boston, Mass, Little, Brown and Company, 1857) at 888. 112 Ibid, 889. 113 Coote v Jecks (1872) 13 LR Eq 597. 114 Ex parte Holthausen (1874) LR 9 Ch App 722. 115 Duder v Amsterdamsch Trustees Kantoor [1902] 2 Ch 132. 116 In re The Anchor Line (Henderson Brothers) Limited [1937] 1 Ch 483. 117 F Palmer, Company Precedents, 4th edn (London, Stevens & Sons, 1888) 378.

112 Paul Mitchell not to fetter the company in dealing with its property.’118 Palmer obviously had in mind British companies raising finance from British lenders, secured against overseas assets. For such companies, the Penn v Lord Baltimore principle meant that commerce and conscience walked hand in hand.

(2) Third Parties Although the dominant theme in the development of the principle from Penn v Lord Baltimore was one of broadening and generalising, one significant limitation emerged relating to third parties. Whilst equity would intervene to enforce contracts, and to prevent fraud as between the perpetrator and victim, it would not protect equitable rights against third parties. Thus, for instance, in the leading case of Norris v Chambres,119 the director of a company had advanced £40,000 of his own funds for the purchase by the company of a mine in Prussia. The purchase fell through, but the vendor retained the part-payment. The mine was later sold to another (related) company, with the vendor giving credit for £40,000 already received. The court held that no declaration of lien over the mine in favour of the director’s estate could be made. Sir John Romilly MR made it clear that he had reservations about the Penn v Lord Baltimore principle generally, and was certainly not prepared to extend it.120 The decision was affirmed by Lord Campbell LC, who observed that the principle from Penn v Lord Baltimore ‘was founded on any contract or privity’ between the parties.121 A similar approach was taken later in Deschamps v Miller.122 This limitation on the principle has troubled judges and commentators. As Peter Prescott QC pointed out in R Griggs Group Ltd v Evans,123 third party purchasers of land with notice of the claimant’s interest would, prima facie, be regarded as fraudulent, using that word in its broad equitable sense. It therefore seems to be a contradiction in terms to state that the Penn v Lord Baltimore principle is used to restrain fraud, but does not apply to third party purchasers with notice. Peter Prescott QC took the view that Norris v Chambres124 and Deschamps v Miller125 have now been overtaken by more modern developments in private international law. 118 Ibid, 379. Cf the more cautious approach taken by Palmer’s later editors: eg, A Topham (ed), Palmer’s Company Law: A Practical Handbook for Lawyers and Business Men, 10th edn (London, Stevens, 1916) 274. 119 Norris v Chambres (1861) 29 Beav 246, 54 ER 621; (1861) 3 De GF & J 583, 45 ER 1004. 120 (1861) 29 Beav 246, 253–55; 54 ER 621, 624–25. 121 (1861) 3 De GF & J 583, 584; 45 ER 1004, 1005. 122 Deschamps v Miller [1908] 1 Ch 856. 123 R Griggs Group Ltd v Evans [2004] EWHC 1088 (Ch), [2005] Ch 153. 124 Norris v Chambres (n 119). 125 Deschamps v Miller (n 122).

Penn v Lord Baltimore 113 Today, he explained, such cases would not be seen as raising a question of jurisdiction, but as raising a question of choice of law.126 Assuming that the approach of Peter Prescott QC is adopted by the appellate courts, the third party issue no longer causes practical difficulties today. However, the reasons why the courts found the issue so difficult illustrate a fundamental feature of the Penn v Lord Baltimore principle. At a broad level, the theme running through the speeches in Norris v Chambres127 and Deschamps v Miller128 was that it could not be right simply to apply English equitable rules without reference to foreign law. Unfortunately there was strong authority—in the form of the decisions in Lord Cranstown v Johnston129 and In re Courtney, ex parte Pollard130—that no such reference could be made. Rather than proceeding in a manner that they were convinced would be incorrect, the courts chose to limit the application of the Penn v Lord Baltimore principle so as to exclude third party cases. In fact, what cases like Norris v Chambres and Deschamps v Miller illustrated was that the assessment of fraud without reference to foreign law was fundamentally flawed. The point was demonstrated by Hicks v Powell,131 a decision of Lord Hatherley LC. There, a house in Madras had been conveyed to the claimant by the vendor, but the conveyance had not been registered. A year later, the vendor purported to mortgage the same house to the defendant, who had notice of the earlier conveyance but relied on the fact that the prior conveyance was not registered. The mortgage deed was registered. Under the Indian Registration Act 1864, all deeds of conveyance were required to be registered within 12 months of conveyance taking place; any deeds not so registered could not be produced in evidence. Lord Hatherley LC refused the claimant’s application for a declaration of priority, commenting:132 There is great difficulty in understanding how, in the case of a covenant which could not be enforced if the parties were in India, a right to sue can arise from the circumstance of the person sought to be charged changing his residence before the institution of the suit.

‘It would be very strange…’ he added, ‘if the claimant could obtain rights over land in India through an action in England, which could not have been obtained in the Indian courts…’.133

126 127 128 129 130 131 132 133

Griggs (n 123) at [90]–[110]. Norris v Chambres (n 119). Deschamps v Miller (n 122). Lord Cranstown (n 106). Courtney (n 108). Hicks v Powell (1869) LR 4 Ch App 741. Ibid, 745. Ibid, 746.

114 Paul Mitchell Although he did not quite put it in this way, the problem that Lord Hatherley LC had identified was that equitable fraud was relative, not absolute. What might be fraud in one system need not be fraud in another. Thus where, as in India, the system of registration provided that unregistered transfers were to be of no effect, it was not fraudulent for a third party with notice of such a transaction to rely on his strict legal rights; where no registration scheme was in place, the third party with notice was likely to be fraudulent. The real problem in Norris v Chambres and Deschamps v Miller was not that the defendants were third parties with notice; it was that the courts could not make any sensible decision about fraud without information about the foreign legal system.134 In essence, the problem went back to the unqualified assertions in Lord Cranstown v Johnston and In re Courtney, ex parte Pollard that foreign law should be disregarded.

G. CONCLUSION

Penn v Lord Baltimore is a landmark case for more reasons than are traditionally recognised. It provides an invaluable insight into the legal machinery of colonialism, demonstrating how a wide range of legal concepts from sources as diverse as feudalism and compromise agreements could be harnessed to solve essentially novel problems. It also highlights the peculiar, private-enterprise nature of early colonial ventures, and the way that the law responded by resolving disputes within a private law framework. At the level of general equity doctrine, its landmark status derives not from having created the in personam doctrine, but from having facilitated a particular approach to it, whereby English courts were given licence to supplement foreign law. As this essay has shown, this licence to give remedies where they were not available abroad gave English courts extensive powers over colonial land, and allowed land abroad to be readily used as security for loans. In short, Penn v Lord Baltimore had both political and commercial significance, in addition to its undoubted importance as a landmark case in equity.

134 This point is perhaps hinted at by Jessel MR in Norton v Florence Land and Public Works Company (1877) 7 Ch D 332 at 336.

5 Burgess v Wheate (1759) PAUL MATTHEWS

In this case a controversy has arisen as to which of two trustees is to keep certain property which was not intended for either of them. Mr Penfold is in the happy position of having got it, and the question is whether … Mr Moody is entitled to take it away from him. (Lindley LJ in Re Lashmar1)

A. INTRODUCTION

U

NLIKE THE WARRING trustees in the quotation set out above, this chapter has something for everyone. It tries to cover a number of different issues all arising out of one case, a Jane Austen saga of its day. This is the story of an inheritance claim that goes wrong. The pedigree is long, the legal transactions complex. Eventually there is a death, and no will. The heir on the mother’s side comes forward, and fails. The Crown steps in to make a claim, because there is no other heir, and equally fails. And the result is that the trustee, who all along has sat on the property as trustee, scoops the pool. Consternation. My story begins with a few words about the feudal doctrine of escheat, a necessary introduction to what follows. For the Crown’s claim, which looms large, is based on it. Then we look briefly at the political context in which the case was decided, before examining the facts, the judges, and the arguments and decision. Then we look at subsequent developments. What we see is the law of trusts emerging from the grip of the medieval land law system, to make its own way forward. The case of Burgess v Wheate2 is a three-way fight between heir, Crown and trustee. The elephant in the room, unmentioned by any of the protagonists but at the forefront of all of their minds, is the notion of conscience, by which trusts take effect, and without which they bind in honour only.

1 2

Re Lashmar, Moody v Penfold [1891] 1 Ch 258, 266. Burgess v Wheate (1759) 1 Wm Bl 123, 96 ER 67; 1 Eden 177, 28 ER 652.

116 Paul Matthews B. ESCHEAT

What follows focuses heavily on the doctrine of escheat, and so we must explain it. The word escheat is interesting from both an etymological and a legal point of view. It is a word of Norman rather than Anglo-Saxon origin. Escheat is derived from the Norman verb eschier, or escheir or eschoir.3 Like many words in Norman and in modern French, the initial ‘es’ (or ‘é’) indicates an ‘s’ in other languages derived from Latin, such as Italian or even English. Thus échelle for scalo or scale, estomac for stomaco or stomach, école for scuola or school, and so on. So the natural etymology of escheat is from scadere, to fall down, to run out. The past participle of eschier was eschet4 or eschete.5 The infinitive of the verb also occurs in the form chier6 (compare the Latin cadere, to fall). The idea is that a (property) right has come to an end, has fallen in.7 It has reached its natural limit. At the same time, it is clearly related to other words, such as the late Norman escheance,8 or the modern French échéance or (more remotely) the English ‘chance’. This has the idea of the happening of an event, the time that a thing is to happen. Certainly the modern French échéance (expiry, maturity date) gives us the idea of a payment or other action becoming due (‘à l’échéance’). As Coke puts it: ‘“Escheat” is a word of art, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated’.9 In English law escheat refers to the idea that a property right comes to an end, or perhaps ‘reverts’ to another. The technically correct meaning is the former, but the popular meaning is the latter, thus misusing the word ‘revert’.10 However, escheat is a part of the doctrine of tenures, and not of the doctrine of estates. And it applied only to estates in fee simple. Thus at common law such an estate escheated on the failure of the heirs of the tenant (called propter defectum tenentis, or sometimes propter defectum sanguinis), or on his committing a gross breach of the feudal bond, originally called felony (propter delictum tenentis). Unlike, say, a life estate or an estate tail, it was no part of the limitation of the fee simple estate that it should come to an end. Indeed, the basic idea of a fee simple was a grant to

3 There are other variants too. See W Rothwell et al (eds), Anglo-Norman Dictionary, 2nd edn (London, Maney, 2005) vol 2, 991. 4 Ibid. 5 See J Baker, Manual of Law French, 2nd edn (Aldershot, Scolar, 1990) 105. 6 Ibid, 70 (chier), 105 (eschier). 7 Cyprian Williams (1931) 75 SJ 843: ‘[I]t simply means the falling-in of the land to the lord.’ 8 See eg G Terrien, Commentaires du Droict Civil, 2nd edn (Paris, Iacques Du Puys, 1578) Liv VI, Ch 1, 193–94, discussing escheance as a means of acquiring property. 9 Co Litt 13a. See also ibid at 92b, referring to escheat as a ‘casual profit’ happening to the lord by ‘chance and unlooked for.’ 10 A-G of Ontario v Mercer (1883) 8 App Cas 767, 772, per Lord Selborne LC.

Burgess v Wheate 117 A and his heirs forever. It was instead a consequence of the fact that—by accident rather than design—there was either no longer a tenant at all or the feudal relationship had been irreparably broken by the tenant’s act. But a life estate did not ‘escheat’ to the lord on the death of, or the commission of felony by, the life tenant, although it certainly came to an end. Nor did an estate tail ‘escheat’ to the lord on the death of the tenant in tail without heirs of the body of the original grantee, or on his committing felony at a time when there was no such heir. Again, of course, it too came to an end. But—in either case—at that point a further limitation took effect, and another estate, in remainder or reversion, as the case might be, fell into possession. The escheat being the consequence of tenure, the beneficiary of the escheat was always the immediate lord in the feudal pyramid. However, despite what Glanvill said,11 the lord did not take as ultimate heir of the former tenant. This was not a doctrine of inheritance, whereby the lord succeeded to the rights of the tenant. Instead the tenant’s rights ended, and the lord’s own pre-existing right came back into possession.12 If the land was held directly of the Crown then the lord to whom the land escheated was the Crown, but not if it was held of some mesne lord.13 But every escheat eliminated a mesne lord from the feudal ladder, and the statute Quia Emptores14 prohibited adding any new ones. Escheat was made commoner by limits on inter vivos alienation, and the lack of a power of testation, of land, and also by restrictive rules about who could inherit it. One such rule prohibited inheritance through the half-blood. Another prevented inheritance by ascendants. A third—relevant in Burgess v Wheate itself—would not allow lands that had descended to an heir of the previous owner on his father’s side to pass to the heir of the later deceased on the mother’s. So by Tudor times most of the intermediate links in the feudal structure had vanished,15 and English land—including that concerned in Burgess v Wheate—was mostly held directly of the Crown.16 Even where it was not, and the land escheated to a mesne lord, the Crown nevertheless had a limited, direct right in cases of felony to enjoy the land for a year and a day, and to subject it to ‘waste’. In the case of high treason the Crown

11 GDG Hall (ed and tr), The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill (Oxford, Clarendon Press, 1993) VII, 17, ‘De ultimis heredibus’. 12 A-G of Ontario (n 10) 772, per Lord Selborne LC. 13 Ibid, per Lord Selborne LC. 14 18 Edw 1 (1290), c 1. 15 AWB Simpson, An Introduction to the History of the Land Law (Oxford, OUP, 1961) 22. 16 Copyhold land was an exception. Hence cases such as Williams v Lord Lonsdale (1798) 3 Ves Jr 752, 30 ER 1255; R v Coggan (1805) 6 East 431, 102 ER 1352; Henchman v A-G (1826) 2 Sim & St 498, 57 ER 436; A-G v Duke of Leeds (1833) 2 My & K 343, 39 ER 974.

118 Paul Matthews had an even larger right at common law,17 to take the land itself (so-called ‘forfeiture’), and in the face of that any mesne lord’s right to escheat could not prevail.18 These royal rights were known as ‘prerogatives’, just like that to treasure trove, bona vacantia19 and so on. The doctrine of escheat was unaffected by the reduction in the number of tenures in 1660.20 However both forfeiture and escheat for felony were abolished by statute in 1870.21 This statute did not affect escheat for outlawry,22 although outlawry itself was progressively abolished in English law in 185223 and 187924 in civil cases, and in 1938 in criminal cases.25 Escheat for want of heirs was actually extended in 1884,26 for the first time to cover equitable estates and interests,27 and also incorporeal hereditaments (eg rentcharges, rights of common, markets, etc) which, not being held of a lord, could not previously have been the subject of escheat. But escheat for want of heirs (as extended) was abolished in 1925. It was replaced by extending the right of the Crown to bona vacantia, as part of the assimilation of the rules of inheritance to realty to those applying to the inheritance of personalty.28 Henceforward the Crown always took, and not only when it was the immediate feudal lord. A further kind of escheat was actually invented by the bankruptcy legislation of the nineteenth century, as a result of the provision that the trustee in bankruptcy of a bankrupt could disclaim his onerous property, which would then revert to the person entitled on the determination of the estate or interest of the bankrupt.29 This rule still applies today, even in the context of corporate insolvency.30

17

Confirmed by statute 25 Edw III, st 5, c 2. This may go back at least to the seizure by King John of the terrae Normanorum in England after the split between Normandy and England in 1204: F Pollock and FW Maitland, The History of English Law before the Time of Edward I, 2nd edn (Cambridge, CUP, 1911) vol 1, 332. In Magna Carta 1215, s 32, the Crown specifically renounced any claim to forfeiture for felony. 19 That is, chattels with no owner. It did not extend to real property until 1926. 20 By the Statute of Tenures, 12 Car II, c 24. 21 33 & 34 Vict c 23, s 1. 22 Bracton, f 130a; 3 Co Inst 212. 23 Common Law Procedure Act 1852, s 24 (‘outlawry on mesne process’: a method of enforcing appearance in an action). 24 Civil Procedure Acts Repeal Act 1879 (‘outlawry after judgment’: a means of enforcing judgment). 25 Administration of Justice (Miscellaneous Provisions) Act 1938, s 12. 26 Intestates Estates Act 1884, 47 & 48 Vict c 71, s 4. 27 To anticipate, this reversed the effect of the main part of the decision in Burgess v Wheate. 28 Law of Property Act 1922, s 148; Administration of Estates Act 1925, ss 45(1)(d), 46(1)(vi). 29 Bankruptcy Act 1869, s 23; Re Mercer and Moore (1880) 14 Ch D 287. 30 Insolvency Act 1986, s 178; Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793. 18

Burgess v Wheate 119 During the modern era, following the Restoration in 1660 and the development of the trust and the strict settlement, the big problem with the doctrine of escheat was its impact on trusts. In relation to uses before the Statute of Uses the position had been simple: the right of escheat attached only to the legal estate, and the use was not affected. So there could be no escheat or forfeiture of the use on the death without heirs, or on the felony or treason of the cestui que use. On the other hand, if the estate of a sole feoffee to uses escheated or was forfeited, the lord or the Crown—who took by title paramount and had no privity with the cestui que use—was not bound by the use. One of the issues in Burgess v Wheate was whether the same answers were to be given after the Statute of Uses in relation to trusts.

C. THE POLITICAL SITUATION IN 1757–59

Whatever judges—and, for that matter, politicians—may say, judicial decision-making does not take place uninfluenced by political events. Even if judges in the English tradition do not consciously bend their decisions to suit political masters, they are still made in a particular socio-political context. So it is useful to have in mind the political situation at the time that the case of Burgess v Wheate was argued and decided. King George II had succeeded his father, the Hanoverian George I, in 1727. He did not get on with his own son Frederick, Prince of Wales, whose political group was known as the Leicester House Party, after Frederick’s house in what is now Leicester Square, London. It was a time of political instability, even though the King’s party, the Whigs, were the dominant political party in Parliament. In 1745 the Stuart Young Pretender ‘Bonnie Prince Charlie’ had raised an army in Scotland and advanced on London, getting as far as Derby before retreating and being beaten at Culloden. In Continental Europe the War of the Austrian Succession raged from 1740 to 1748, pitting Austria, Britain and The Netherlands against France and Prussia. Even after that was over, France and Britain continued to rival each other in India and in America. In 1751 the Prince of Wales died, leaving his eldest son George as the heir apparent to George II. In 1754 the Prime Minister Henry Pelham died, and his brother the Duke of Newcastle succeeded him. War broke out between France and Britain in America over the colonies there, and spilled over into Europe in 1756, the start of the so-called Seven Years’ War. The French invaded Minorca, a British possession, and Admiral John Byng was sent, with an inadequate force, to counter them, but failed to do so, with the well-known consequences. The Government collapsed, and the Duke of Devonshire took over as Prime Minister. But war continued, and went from bad to worse.

120 Paul Matthews In April 1757, George II dismissed the Government, and after a hiatus Newcastle resumed as Prime Minister, with Pitt the Younger as Secretary of State. Pitt’s efforts turned the tide and the British defeated the French in North America, after Wolfe took Quebec in 1759, and British ships conquered the West Indies. In October 1760 George II died, to be succeeded by his grandson George III, who had the tory views of his late father, rather than the whig views of his grandfather. It was a turbulent time. And the problems with American colonies were only just beginning. It is important to notice, too, that judges at this time were not divorced from politics. Most of the Chief Justices and Lord Chancellors, and some of the puisne judges too, had previously been Members of Parliament (MPs) and law officers. All three judges in our case had been MPs, and two of them law officers. Indeed, being Attorney-General gave a kind of moral claim to one of the important judicial offices—usually the Chief Justice of the Court of King’s Bench—well into the twentieth century.31 And the Chief Justice and the Lord Chancellor usually were members of the Government, with a seat in the Cabinet.32 Indeed, Lord Hardwicke sat in the Cabinet even after he resigned as Lord Chancellor in 1756.33

D. THE FACTS OF THE CASE

Now we must turn to the facts of the case. As often happens with landed families, the story starts further back than you might expect. In 1668 Lawrence Bathurst owned the legal estate in fee simple absolute in possession in a certain manor and advowson in Gloucestershire. In order to raise money on the security of the land but still remain the legal owner of it, he granted a lease for 1,000 years of a part of the manor containing a mill (referred to hereafter as ‘the mill’) to trustees for himself, and then

31 The last Attorney-General to move directly to become Lord Chief Justice was Sir Gordon Hewart (Viscount Hewart CJ) in 1922. The last Lord Chief Justice to have previously held ministerial office was Viscount Caldecote, who was Lord Chief Justice 1940–46, and who had previously (successively) been Attorney-General, Minister for Co-ordination of Defence, Secretary of State for Dominion Affairs and Lord Chancellor. More recently Attorneys-General have gone on to become Lords Chancellor, such as Sir Reginald Manningham-Buller (Viscount Dilhorne), Sir Elwyn Jones (Lord Elwyn-Jones) and Sir Michael Havers (Lord Havers). And some recent Solicitors-General have obtained judicial office too: eg Sir Jocelyn Simon (Simon P, Lord Simon of Glaisdale), Sir Lynn Ungoed-Thomas (Ungoed-Thomas J) and Sir Ross Cranston (Cranston J). 32 The last Lord Chief Justice to sit in the Cabinet was Lord Ellenborough, in 1806. The last Lord Chancellor to sit as a judge in the House of Lords was Lord Irvine of Lairg, in 2001. His successor, Lord Falconer, elected not to do so. The Lord Chancellor is now no longer a judge at all: Constitutional Reform Act 2005, Pt 2. 33 Conversely a lawyer might come under pressure not to take a political post, such as Lord Hardwicke’s second son Philip Yorke, who succumbed to pressure to be appointed Lord Chancellor in 1770 but then thought better of it and committed suicide.

Burgess v Wheate 121 appointed that the trustees assign the lease for 500 years to a lender as security for a loan. It is important in what follows to keep firmly in mind the distinction between the mill (which was mortgaged) and the remainder of the manor (which was not). Lawrence died, appointing his widow Susannah as executrix of his will, and leaving his son, Edward, and two daughters, Ann and Mary. Thus the fee simple in the whole manor descended directly to Edward as heir at law, and the remainder of the 1,000-year term of the mill (subject to the part mortgaged) to his widow Susannah as personal representative. In 1672 Susannah assigned the remainder of the 1,000-year term by way of security for a further loan. Both security interests later became vested in John Chandler. When the son Edward died, an infant and without issue, the fee simple of the manor (subject to the mortgage terms of the mill) devolved directly upon his sisters, Ann and Mary, as coparceners, that is, in effect, legal tenants in common for one half each. Later Ann married John Greening, and Mary married George Coxeter. The effect of each marriage at common law was that each of Ann and Mary could no longer deal with her half share of the manor without the concurrence of her husband. In 1686 Ann and John made a common law settlement of her half, essentially for themselves, with remainder as they should appoint, but with a gift over to the right heirs of the survivor after the deaths of both of them without having made an appointment. In 1689 Mary, as owner of the other one half share, and George her husband, sought a partition of most of the land, and ultimately it was divided up physically between the two couples, though no conveyances were made to perfect the title on the ground. In 1693 Ann died, and in 1694 her husband John died, without having made any appointment and without issue. So their one half share of the manor descended to the heir of John, as the survivor of them. This was John’s heir on his father’s side,34 his niece Elizabeth, the daughter of his brother Thomas. In 1695 Elizabeth married Nicholas Harding, but before her marriage she entered into a common law settlement of the half share. In broad terms this conferred successive life estates on the couple and then created a tail male, but with an ultimate remainder to Elizabeth’s right heirs. In 1695 Elizabeth and Nicholas brought proceedings to perfect the partition which had been left outstanding, and to divide other lands not physically divided earlier. This led to a decree for mutual conveyances and a commission for division of the rest. In 1698 the necessary mutual conveyances were executed. The only part left outstanding was the mill, still mortgaged. George died, leaving Mary as survivor solely entitled to the other half share of the manor, and once again able to deal with it on her own. By

34 If there was both an heir on the father’s side and one on the mother’s side, the former had preference.

122 Paul Matthews this time the mortgage debt in favour of John Chandler (which affected the mill and was secured by the mortgage terms) was significant. Mary therefore conveyed her one half share in the equity of redemption of the mill to trustees for John Chandler, in substance releasing her interest in the mill to the mortgagee. In 1713 Elizabeth and Nicholas agreed to make a similar conveyance of their half of the same equity of redemption, but on terms that the trustees for the mortgagee should reconvey the whole of the mill (including Mary’s half and the mortgage terms) to them or the survivor on payment of £500.35 In 1715 Elizabeth and Nicholas made the agreed conveyance and paid the money36 (though by now John Chandler was dead and it was for the benefit of his son James Chandler). But the trustees for the mortgagee did not make the agreed reconveyances, although they had covenanted that until they did, Nicholas and Elizabeth should stand seised to the same uses and continue in possession. In 1718 Elizabeth and Nicholas made a further settlement of the land. This was to take effect subject to the settlement of 1695 and therefore to the outstanding life estates of Elizabeth and Nicholas, but this time by way of a trust, and there was a conveyance to trustees. The trustees were Sir Francis Page37 and Robert Simmons. In the events that happened, the trusts were as Elizabeth might appoint, but in default of appointment for Elizabeth absolutely. Nicholas died first, and then Elizabeth. Elizabeth and Nicholas had no children. The limitation in tail male from the settlement of 1695 therefore failed, and the life estates had run out, leaving the remainder for the right heirs of Elizabeth.38 However, that was now subject to the deed of 1718 and to the trust created by it. As to the trust estate, Elizabeth had made no appointment, so that at her death it was held for her absolutely. She left no heir on her father’s side, though the plaintiff Richard Burgess was her heir on her mother’s side. In 1738, after Elizabeth’s death, and before Burgess could make any claim, the surviving trustee Sir Francis Page39 managed to get into possession of the estate. So Burgess brought this claim against him. As maternal heir to Elizabeth’s equitable estate, his claim could be brought against the legal owner only in a court of equity.

35 This is the amount stated by Sir Thomas Clarke MR in his opinion at (1759) 1 Wm Bl 125, 96 ER 68. In the statement of facts at the beginning of the report in Eden, it is given as £150 (at 179). But nothing appears to turn on this discrepancy. 36 This fact does not appear from the statement of facts at the beginning of the report in Eden, but in the opinion of the Master of the Rolls in Blackstone’s report, at 125. 37 A barrister and former Whig MP, now King’s Sergeant, who a few months later was appointed to the bench as a Baron of the Court of Exchequer. He went on to be appointed to the Court of Common Pleas in 1726, and then in 1727 to the Court of King’s Bench, where he sat until his death in 1741. 38 The limitation to her right heirs was in effect her own estate. 39 By then in his late seventies, but still a sitting judge.

Burgess v Wheate 123 E. THE LEGAL PROCEEDINGS

As was unfortunately all too common in the Court of Chancery at this time, the proceedings were long and drawn out. The original bill by Burgess against Page was filed in July 1739. It claimed that if Page had any legal interest in the estate, he should convey it to Burgess, deliver up possession, and account for the rents and profits. Page replied that he was lawfully seised of the estate and entitled to the rents and profits. In July 1741 the case came on to be heard before the then Lord Chancellor, Lord Hardwicke. But he objected that the case could not be decided unless the Attorney-General became a party, to represent any interest of the Crown by way of escheat, or else he disclaimed any interest on behalf of the Crown. The case was stood over, and in the event the Attorney-General was made a party. In September 1741 Sir Francis Page died, and as he had no children by either of his two marriages the bill was revived against his personal and real representatives, relatives of his second wife, Frances Wheate. In February 1744, the case came back before Lord Hardwicke, who ordered that a case should be settled for the consideration of the Court of King’s Bench. The case was elaborately argued before the common law court,40 and in May 1754 the judges of that court returned the certificate of their opinions to the Lord Chancellor. They certified three matters: a)

By virtue of the deed of 1718 and the fine levied, the trustees Page and Simmons took a legal estate, namely the reversion in fee simple expectant on the deaths of Nicholas and Elizabeth without male issue. b) Even if no estate had passed to Page and Simmons, Burgess as Elizabeth’s heir at law on her mother’s side could not at common law inherit this land on her death. c) If the deed of 1718 had not been executed, or the fine levied, then similarly Burgess as Elizabeth’s heir at law on her mother’s side could not at common law inherit this land on her death. But if on the other hand the trustees for the mortgagee had conveyed the mill to Nicholas and Elizabeth, as covenanted in the release of 1713, then Burgess as Elizabeth’s heir at law on her mother’s side would inherit that on her death. Thereafter the Attorney-General filed an information on behalf of the Crown, claiming that Page had no beneficial interest of his own but was merely a trustee for Elizabeth, her appointee or heir, and that in default of such appointee or heir he was a trustee for the King, and that the land was escheated and should be conveyed by Page’s representatives to the use of the

40

The arguments are to be found in the Hargrave MSS, No 85, p 95.

124 Paul Matthews King. This information was a means for the Crown in separate proceedings to make a claim to the land. It was, as the Master of the Rolls observed, in the nature of a cross-bill. Page’s representatives filed an answer, and issue was joined. Both the original bill as revived and the new information were heard by the Court of Chancery at the same time, on 13, 14 and 15 December 1757. The arguments were complex, but only a brief note of them is given in the report by Eden (none at all in Blackstone’s report). Eden justified this course by stating that the Lord Keeper’s note book recorded the arguments, and that a less exact report of them is found in Ambler’s manuscripts.41 Judgment was then reserved (for more than a year), probably because of the complexity of the matter, and also because the three judges were not all agreed, and eventually given on 24 January 1759, nearly 20 years after the proceedings had been originally started.

F. THE JUDGES

(1) The Master of the Rolls Now we must say something about the three judges involved. The first of them was Sir Thomas Clarke, Master of the Rolls. Originally, the Lord Chancellor or Lord Keeper was the only judge of the Court of Chancery who could try suits. The Master of the Rolls was originally simply one of the several masters in chancery who dealt with administrative matters, and like them had no explicit judicial function. In particular, the Master of the Rolls was responsible for looking after the court rolls. But over time it became accepted that he could hear cases and make orders in the absence of the Lord Chancellor or Lord Keeper.42 By the eighteenth century the business of the court was such that it certainly needed a second judge.43 The matter was settled by statute in 1729.44 This provided that orders made by the Master of the Rolls should be valid subject to appeal to the Lord Chancellor, and that no order should be enrolled until the Lord Chancellor had also signed it. In effect the Master of the Rolls had become the general deputy of the Lord Chancellor, to whom there was an unfettered right of appeal.

41 (1759) 1 Eden 177, 183; 28 ER 652, 655. Another, elaborate statement of the arguments is found among Sergeant Cox’s manuscripts in Lincoln’s Inn Library, written by Fazakerley. 42 See 4 Co Inst 97; DEC Yale (ed), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge, CUP, 1965) ch II, s 6. 43 The third judge came only in 1813, with the institution of the Vice-Chancellor of England. 44 3 Geo II, c 30.

Burgess v Wheate 125 Sir Thomas Clarke was born in 1703, the son of a carpenter father and a pawnbroker mother of the parish of St Giles in the Fields, in central London. From this humble beginning he was helped to go to Westminster School by an alumnus, the son made good of another local resident, Zachary Pearce, later a bishop. In 1721 he went to Trinity College Cambridge (as Pearce had done) and became a fellow there in 1727 (as Pearce had also done). He also followed Pearce in being elected a Fellow of the Royal Society. He was called to the bar, took silk in 1740 and became a Member of Parliament in 1747. Then, in 1754, he was appointed Master of the Rolls and knighted, after William Murray (later Lord Mansfield) had turned down the position. It is said that he was offered and refused the Lord Chancellorship on the resignation of Lord Hardwicke in 1756.45 He died still in office in 1764, and was buried in the Rolls Chapel (now part of the library of King’s College).

(2) The Lord Chief Justice Next there is Lord Mansfield, the Chief Justice of the Court of King’s Bench. The office needs little introduction. William Murray was the son of Scottish nobility who was educated at Westminster School and Christ Church Oxford. He was called to the bar in 1730, elected to Parliament in 1742 and appointed Solicitor-General. In 1754, when the then AttorneyGeneral Sir Dudley Ryder was appointed Lord Chief Justice of the King’s Bench, he was promoted to Attorney-General. The Master of the Rolls, Sir John Strange, then died a few months later. His position was offered to Murray, but he declined. When Ryder died in 1756, Murray succeeded him in that post too, having been created Lord Mansfield. His sister married the Marquess of Rockingham, and he himself married the grand-daughter of the first Lord Nottingham. He resigned as Lord Chief Justice in 1788, and died in 1793. He is best known for his strong development of English commercial law during his tenure as Lord Chief Justice.

(3) The Lord Keeper The third judge was the Lord Keeper of the Great Seal. The Lord Keeper was a State official with exactly the same functions as, but a lower status than, the Lord Chancellor. This was originally the title of the person who temporarily held the Great Seal of England in the gaps between successive 45 W Holdsworth, A History of English Law (London, Methuen & Co Ltd, 1938) vol 12, 246; Oxford Dictionary of National Biography (Oxford University Press 2004, online edition January 2008 www.oxforddnb.com/view/article/5533).

126 Paul Matthews Lord Chancellors.46 But from an early date it was clear that, in functional terms, the Lord Keeper had the same authority, powers, rights and duties as the Lord Chancellor.47 There could not be a Lord Chancellor and a Lord Keeper at the same time.48 They were alternatives. So the Lord Keeper would both preside in the Court of Chancery and act as Speaker of the House of Lords. Unlike the Lord Chancellor, the Lord Keeper was usually a commoner,49 even though he sat on the Woolsack (technically outside the precincts of the House of Lords), and was usually granted a peerage at a later stage. Sir Robert Henley was in fact the last person to be appointed Lord Keeper. Normally, and as happened as in Sir Robert’s case, the Lord Keeper went on to become Lord Chancellor. Henley was born in 1708 into a family of well-off landowners, descended from a former master of the Court of King’s Bench who had amassed a fortune and employed Inigo Jones to build a large country house in Hampshire. He attended Westminster School and then Oxford University. He was called to the bar in 1732, was elected a Member of Parliament (for Bath) in 1747, was appointed recorder of Bath in 1751 and Attorney-General in 1756, and knighted. The following year he was appointed Lord Keeper. Sir Robert Henley was appointed Lord Keeper in unusual circumstances. The previous Lord Chancellor, Lord Hardwicke, had resigned in 1756, and it was not clear who would succeed him. As already noted, it is said that Sir Thomas Clarke, the Master of the Rolls, was offered and refused the position. Lord Mansfield, recently appointed Lord Chief Justice of the King’s Bench, was a candidate, but did not want to move.50 Sir John Willes, the Chief Justice of the Common Pleas, was also a candidate. In the meantime the Great Seal was put into commission, that is, Lords Commissioners were appointed to hold the seal and carry out the Lord Chancellor’s functions temporarily.51 One of the Commissioners in fact was Sir John Willes. King George II was ultimately prepared to appoint him Lord Chancellor but not to grant him a peerage, apparently on the grounds of his dissolute and immoral

46 J Baker, An Introduction to English Legal History, 4th edn (London, Butterworths, 2002) 99. 47 W Holdsworth, A History of English Law, 7th edn (London, Methuen & Co Ltd, 1956) vol 1, 410; Stat 5 Eliz 1, c 18 (1562). 48 (1768) 3 Bl Comm 47; pace Cecil, Tipping the Scales (London, Hutchinson, 1964) 82. 49 Eg Sir John Somers, 1693; Sir Nathan Wright, 1700; Sir William Cowper, 1705; Sir Simon Harcourt, 1710. Lord Finch (later Lord Nottingham), 1673, and Lord Guilford, 1683, were exceptions. 50 Had he done so, it is very probable that the result in Burgess v Wheate would have been the opposite of what it in fact was. 51 This does not nowadays happen to the Lord Chancellor’s office, but it is still the position for the office of Lord Treasurer (the Prime Minister is ‘First Lord of the Treasury’) and was the position until 1964 for that of the Lord High Admiral (Churchill, for example, was appointed First Lord of the Admiralty in 1911 and again in 1939).

Burgess v Wheate 127 private life.52 Strictly speaking it was not legally necessary for the Lord Chancellor to be a peer,53 but at this date the person appointed was nearly always granted a peerage if he did not already have one. Sir John Willes, therefore, thinking his claim a strong one, stuck out for a peerage. But the King would not budge, and Willes was passed over. Instead, in 1757 Sir Robert Henley, the Attorney-General, was appointed Lord Keeper, but, in the usual way for a Lord Keeper, without a peerage. George II was prepared to appoint him to the lower status position, but was not prepared to appoint him Lord Chancellor, or a peer, for he had adhered to the Leicester House Party of the King’s late son Frederick, Prince of Wales.54 This meant that he presided over the House of Lords even in its judicial capacity, and apparently it greatly annoyed him not to be able to intervene when his own judgments in the Court of Chancery were under appeal.55 In 1760, however, the King had to grant him a peerage (as Lord Henley) in order for him to preside, as Lord Steward, at the trial of Earl Ferrers by his peers for murder. After the death of George II later that year, his successor and grandson George III immediately promoted Henley to Lord Chancellor, and in 1764 made him Earl of Northington. He resigned as Lord Chancellor in 1766, and was appointed Lord President of the Council, until ill-health compelled retirement in 1767. He died in 1772, aged about 64.56

(4) Why Three Judges? Having discussed the judges involved, an important procedural question arises. Why were there three of them involved in this case? Unlike in the courts of common law, where the four judges in each court usually sat simultaneously, in the Court of Chancery, as is well known, the rule was that a single judge sat to try cases. This single judge was originally the Lord Chancellor or the Lord Keeper, as the case might be.57 Later, as already noted, the Master of the Rolls could deputise for either, subject to an appeal by way of rehearing before the holder of the Great Seal.58 On other, rare occasions, a single judge might be commissioned to sit for the Lord

52

See Holdsworth (n 47) vol 12, 133. See eg R Megarry, A New Miscellany at Law (Oxford, Hart Publishing, 2005) 1–3. 54 See Holdsworth (n 47) vol 12, 298–99. 55 EB Sugden, A Treatise of the Law of Property as Administered by the House of Lords (London, S Sweet, 1849) 38; A Lincoln and R McEwen (eds), Lord Eldon’s Anecdote Book (London, Stevens, 1960) 154. 56 Holdsworth (n 47). 57 3 Co Inst 84. 58 3 Bl Comm 40; J Newland, The Practice of the High Court of Chancery (London, J Butterworth, 1813) ch IX, s II, 186–91. 53

128 Paul Matthews Chancellor.59 The only exception to the rule of the single Chancery judge occurred when the Great Seal was in commission. Then there would usually be three Commissioners sitting together. But when Burgess v Wheate came to be argued before the Court of Chancery in December 1757, the Great Seal was no longer in commission. It had last been in commission some months earlier, from the resignation of Lord Hardwicke in November 1756 until the appointment of Henley as Lord Keeper in July 1757. Lord Keeper Henley was the obvious person to sit and to decide the cause, just as Lord Hardwicke LC had originally sat to hear it when it came on in 1741 but was ultimately adjourned. It was an important matter for the Court of Chancery, raising questions about the Crown’s rights to land, and the Lord Keeper was the senior judge of the court. It is true that Sir Thomas Clarke could have decided the case as Master of the Rolls, as deputy for the Lord Keeper. He did this all the time in the absence of the Lord Keeper. The only problem is that on this occasion the Lord Keeper was present and sitting as well. And it was clear that the presence of the senior judge excluded the jurisdiction of the junior. But whatever the position with the Chancery judges, why should the Lord Chief Justice of the Court of King’s Bench have been taking part? What authority did he have in the Court of Chancery? The reports of the case do not assign any explicit functions to the three judges. This may be because—as mentioned later—the reports are not contemporaneous and the reporters were not present. They simply give the judges’ opinions one after the other, the Master of the Rolls first, the Lord Chief Justice second, and the Lord Keeper third. Modern judges persist in treating the three judges as being equal members of the court and as having rendered three separate judgments, which by a majority of two to one resulted in judgment being given for the defendant Wheate.60 But there is an alternative view. There is a clue in the language used by two of the judges. First of all, Sir Thomas Clarke refers at the beginning of his opinion to the fact that the Court of King’s Bench had certified its opinion on a stated case ‘to the Lord Keeper, and he seems inclined to confirm that certificate; and that cause is now set down for further directions’.61 He says it again a little further into his opinion, after having stated the facts: ‘This claim [ie of Burgess as heir on the mother’s side] I see no ground for, considering the certificate of the judges, which Lord Keeper proposes to confirm.’62 This suggests that the Master of the Rolls is not making the decision, and that the main role in what is about to happen is reserved for

59 See eg Shapland v Smith (1780) 1 Bro CC 75, 28 ER 994, where Eyre B sat with two masters for the Lord Chancellor. 60 See eg Romer LJ in Re Wells [1933] Ch 29, 57. 61 (1759) 1 Wm Bl 123, 96 ER 67. 62 (1759) 1 Wm Bl 128, 96 ER 70; 1 Eden 177, 186; 28 ER 652, 656.

Burgess v Wheate 129 the Lord Keeper. Then, at the very end of his (lengthy and detailed) opinion, the Master of the Rolls says this: ‘These are my sentiments, my lord, and, as such, they are submitted to your lordship’s judgment.’63 This is a telling phrase. One of a bench of three judges who are not giving a joint judgment would give his own, or simply agree with one or more of the others. But, instead of giving his own judgment as an independent judge, or just agreeing, he seems to be giving advice to the judge (the Lord Keeper) who is going to give ‘judgment’. There is nothing similar in the opinion of Lord Mansfield. The reader may of course note in passing that he never refers to his ‘judgment’, only to his ‘opinion’. However, this is also the case for the Lord Keeper, and so little or nothing can be read into it. Finally, the Lord Keeper at the outset of his own opinion says this:64 There is one objection and two claims upon which I am now to deliver my opinion. I agree entirely with the Lord Chief Justice, and his Honour, as to the objection. As to the other points, I think myself very much obliged to the Lord Chief Justice, and his Honour, and return them many thanks for their learned assistance; and their free and unreserved communication of their sentiments to me, during all the time that this matter has been under consideration.

A presiding judge sitting en banc did not thank the other judges for their assistance, or for giving their opinions to him. This is the language of a judge who has to give the judgment, and has sought advice before doing so. Now, it is clear that at that time the Court of Chancery could send a case off to law, for the Court of King’s Bench to consider and determine an issue of fact or a point of law.65 Indeed, that had already happened in this case. But in addition it appears from the early seventeenth-century Coke’s Institutes that ‘in cases of weight or difficulty’ the Lord Chancellor or Lord Keeper ‘doth assist himself with some of the judges of the realm, and no greater objection can be taken hereunto then in case of the lord steward of England being the sole judge in trial of the nobility, who also is assisted with some of the judges’.66 Lord Nottingham made exactly the same point in his Prolegomena of Chancery and Equity.67

63

(1759) 1 Wm Bl 153, 96 ER 80; 1 Eden 214, 28 ER 667. (1759) 1 Eden 239, 28 ER 675. 65 3 Bl Comm 452–53. This power was abolished by the Court of Chancery Procedure Act 1852, 15 & 16 Vict c 86, s 61. 66 3 Co Inst 84. The Institutes were published between 1628 and 1644. Coke died in 1634. 67 DEC Yale (ed), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge: CUP, 1965) ch II, s 10. The Prolegomena was probably written in the early years of Lord Nottingham’s Lord Keepership, from 1673. 64

130 Paul Matthews There are a number of cases in the books where this happened.68 The Lord Chancellor or Lord Keeper was assisted by the attendance for the argument of the senior common law judges. They gave their opinions first, and then the Lord Chancellor gave judgment. Often—as in Burgess v Wheate—he thanked them for that assistance.69 Even if the other judges disagreed with the Lord Chancellor, he could still make the order as he saw fit.70 The difference between this procedure and the procedure for obtaining a certificate from the common law judges arose in a case in 1722,71 where counsel sought to challenge the reasoning in the certificate of the common law judges. Lord Macclesfield LC said72 that he thought he must be concluded by the opinion of the judges. He admitted, that in case he had sent for the Judges to have assisted him in the hearing of the cause, the reason of the Judges had not convinced him, he must have acted according to his own understanding, for it was to be his decree, not theirs (and this Lord Nottingham did in the case of The Duke of Norfolk), but that here he was not at that liberty; having not heard the arguments at law before the Judges, nor been acquainted with the grounds on which their opinion was founded; and that he looked upon the Judges here in the nature of referees.

The likely explanation, therefore, for the fact that three judges were present in the Court of Chancery in Burgess v Wheate is that the Lord Keeper was alone going to make—and did make—the decision, but that he wished before doing so to have the advice of two other judges, one of common law, the other of equity. This was a difficult case, involving the Crown’s rights, in circumstances where the Lord Keeper, an erstwhile supporter of the late Prince of Wales and therefore a political opponent of the Establishment, did not feel totally secure vis-à-vis the King and the Government, at a time of some political instability. At the time of the oral arguments, the Lord Keeper had been in post for only about five months. Nothing could be more natural than wishing to try to spread the responsibility, by taking the opinion of other judges. And the two judges concerned were well known to him, having been his contemporaries at Westminster School. This would also explain why the Master of the Rolls, the junior judge, gave his opinion first, and the Lord Keeper—on any view the presiding judge—gave his opinion last. The usual practice in the common law courts at this period, with a plurality of judges, in cases where there were separate 68 See eg Earl of Suffolk v Greenvill (1641) 3 Ch Rep 89, 21 ER 738; Cook v Fountain (1676) 3 Sw 585, 36 ER 984 (discussed by Mike Macnair in ch 2 of this book); Duke of Norfolk v Howard (1681) 2 Ch Cas 14, 22 ER 939, (1683) 1 Vern 163, 23 ER 388; Bertie v Falkland (1697) 3 Ch Cas 129, 1 Salk 231, 91 ER 205; Ryall v Rowles (1750) 1 Ves Snr 348, 27 ER 1074. 69 See eg Ryall (n 68). 70 See eg Duke of Norfolk (n 68). 71 Gore v Gore (1722) 10 Mod 501, 88 ER 827. 72 Ibid, 502, 828.

Burgess v Wheate 131 judgments delivered, was for the Chief Justice (or Chief Baron) to give judgment first, followed by the others in order of seniority. That did not happen here. But where, for example, the common law judges were called to advise the House of Lords, the judges gave their opinions before the members of the House gave theirs. That was the model for Burgess v Wheate.

G. LAW REPORTS

Before we proceed to examine the arguments and the decision, we should say a word about the available law reports. The case of Burgess v Wheate is reported in a number of sources. But the judgments themselves are found in both Sir William Blackstone’s reports, published posthumously in 1780 or 1781,73 and in those by Robert Eden, who was Lord Keeper Henley’s grandson, published in 1818.74 Neither source is therefore contemporaneous, in the sense that practitioners would have had easy access to them shortly after the decision. Indeed, Eden was not born for some 30 years after the decision. So Burgess v Wheate is one of those ghostly cases that for more than 20 years must have floated about Lincoln’s Inn in manuscript note form, in the way that, in the twentieth century before the use of computers became widespread, important but unreported Chancery cases did. Blackstone’s reports are generally of (common law) cases in the Court of King’s Bench. Presumably, therefore, the reason for the inclusion of Burgess v Wheate was the participation of Lord Mansfield. But it is not clear how Blackstone would have been able to report the case in any conventional sense. Although he had been called to the bar in 1746, and had started practice in London, his career there was slow to take off, and in 1753 he had decided ‘no longer to attend the Courts at Westminster’. Instead he devoted himself to Oxford affairs, where he was a fellow of All Souls College. Amongst other things, he gave his new course of lectures on English law, became an assessor (chief legal officer) of the vice-chancellor’s court and the first Vinerian Professor of English Law, and remodelled the board of delegates who controlled the university press. He resumed his London practice only in the latter part of 1759, after Burgess v Wheate had been decided.75 The form of his report, in effect just the three judicial opinions,

73 See JS Waterman, ‘Mansfield and Blackstone’s Commentaries’ (1934) 1 University of Chicago Law Review 549, 555. The reports were revised and reprinted in 1828, and this is the version which appears in the English Reports. 74 In 1830 Robert Eden became the 2nd Lord Henley on the death of his father, a diplomat who had married Lord Northington’s daughter and been ennobled in 1799, taking as his title the patronymic of his father-in-law. Robert Eden, himself a barrister, became a Master in Chancery from 1826 to 1840. He married the sister of Sir Robert Peel, and died in 1841, suffering from insanity. 75 See W Prest, William Blackstone (Oxford, OUP, 2008) chs 7, 8.

132 Paul Matthews printed seriatim without facts or arguments reported, suggests that he was not present at the hearing but merely received and included in his papers the texts of those opinions. His biographer, Wilfrid Prest, says that76 although his published reports include a lengthy account of judgments delivered in Chancery on 24 January 1759,77 this was evidently compiled by the veteran Tory lawyer Nicholas Fazakerly, and provided by Bamber Gasgoigne, another Lincoln’s Inn barrister.

Eden’s reports were of the decisions on the Court of Chancery during the time of Lord Northington, both as Lord Keeper and Lord Chancellor. But Eden was not born until 1789, and again, therefore, Eden was not present in court during the hearing of Burgess v Wheate. The texts of the judicial opinions of the Master of the Rolls and Lord Mansfield are virtually identical in both series of reports.78 Either Eden just copied what was already in Blackstone, or they both copied the same manuscript source. The opinion of the Lord Keeper, however, is slightly longer and more elaborate in Eden, though not significantly different. This difference may be due to the fact that Eden had access to his grandfather’s manuscripts, supplemented by references to the manuscripts of other lawyers. Moreover, the facts of the case and the arguments of counsel are not stated in Blackstone, but they are, albeit briefly, in Eden.

H. THE ARGUMENTS

Let us now turn to the arguments put forward. In point of procedure, time and logic, the first argument to be considered was that of Richard Burgess, the heir on Elizabeth’s mother’s side. On his behalf, Serjeant Hewitt and Mr Caldecot appear to have accepted that normally such an heir could not take when the land had descended to Elizabeth on her father’s side. The common law rule was that descent to land was to be traced from the last purchaser with seisin. For this purpose ‘purchaser’ included a person who took a conveyance even for no consideration (such as a donee, whether holding beneficially or as a trustee). It did not include a person who had inherited the land, as Elizabeth had. The common law rule was explicitly confirmed by the certificate of the judges to whom the case had been sent at an earlier stage. Equity followed the law in this respect, so that inheritance of trust interests would be governed by the same restrictive rule. Hence it

76

Ibid, 194. The date of the delivery of judgment in Burgess v Wheate. 78 Though Eden omits (at 186, 28 ER 656) a statement of the case in the opinion of the Master of the Rolls, which Blackstone sets out in full (at 124–28, 96 ER 68–69). 77

Burgess v Wheate 133 was not possible for Elizabeth’s heir on her mother’s side to take, because he was not an heir at all to Elizabeth’s ancestor on her father’s side. But Burgess by his counsel said that the present case was different. First, it was said that the deed of 1718 created a use for Elizabeth, which could descend to him as the heir on her mother’s side. This did not in terms conflict with the certificate of the common law judges, who had not been asked to consider the case of a use, much less that of a trust. Secondly, in any event, Elizabeth was to be considered as if she had taken a new legal estate by purchase from the trustees, and hence, in default of heirs on the father’s side, he as the heir on the mother’s side could take. The reason for so considering her as having taken a fresh estate was that Elizabeth, being in effect the sole beneficiary of the trust, could have called for a conveyance from the trustees, and if she had done this the trustees would have been obliged to make it to her. Hence, ran the argument, the maxim applied that equity regarded as done that which ought to be done, and in equity the position was as if the conveyance had in fact been made. If they had made the conveyance, Elizabeth would have been a purchaser, and the heir on her mother’s side could take in default of heirs on the father’s side. There was also a subsidiary point, which—to judge from its absence in the summary of the argument—Burgess’s counsel evidently did not run too hard because it cut across the main argument. This was that the trustees of the mortgaged mill had covenanted to convey it to Elizabeth in fee, but had not done so by the time of her death. Even if the main lands were not to be treated as having been conveyed to Elizabeth (because there was no covenant to do so), the mill at least should be. In relation to the information filed on behalf of the Crown, there appeared the Attorney-General,79 the Solicitor-General80 and three other counsel.81 Their case assumed that no other heir could take. There were a number of technical procedural points, but, in broad terms, their argument was that the equitable estate in the lands enjoyed by Elizabeth Harding escheated to the Crown on her death intestate and without heirs. Although the simplest argument to state, it engendered the most debate, and the greater part of each of the three judges’ opinions was devoted to dealing with it. Counsel for the personal and real representatives of the surviving trustee82 made no positive case for beneficial ownership of the land. They said that the deed of 1718 made no difference to the maternal heir’s claim, and that 79 Sir Charles Pratt, later Chief Justice of the Court of Common Pleas and thereafter (as Earl Camden) Lord Chancellor. He and the Solicitor-General were professional rivals throughout their careers. 80 Charles Yorke, second son of Lord Hardwicke, who later himself was appointed Lord Chancellor in succession to Lord Camden, and created Lord Morden, but committed suicide before taking up office. 81 Messrs Sewell, Hoskins and Coxe. 82 Messrs Willes, Perrot, Wilbraham and Aston.

134 Paul Matthews the Crown’s claim would materially alter the existing law of escheat. In essence, they simply rested on the twin facts of being owners at law and of being in possession of the land concerned, and said that showing that the trustee had no beneficial right was not sufficient to take the land away from them. The heir or the Crown had to show a better right, and this neither of them could do.

I. THE JUDGES’ OPINIONS

(1) The Claim of the Heir on the Mother’s Side The three judges were unanimous in their view on the claim by the heir on the mother’s side. It failed in large part, and succeeded only as to the mill. The problem was that the effect of the law83 was that an heir on the mother’s side could only succeed to an estate in tracing descent from a ‘purchaser’, and Elizabeth at first sight was not (at common law) a purchaser of any of the land. She had inherited the land from her paternal uncle, John Greening. Elizabeth’s maternal heir was not an heir of John Greening. However, he argued that the deed of 1718 conveying the fee simple reversion to the trustees made all the difference, and turned Elizabeth into a purchaser, from whom he could trace descent. Lord Mansfield84 and the Lord Keeper85 looked at the question in more or less the same way. First they considered what would have been the position if the conveyance to the trustees in 1718 had been to the use of Elizabeth. They reasoned that a use, whether express or resulting, for Elizabeth could not have descended to the maternal heir because it followed the nature of the land,86 and the land itself (as certified by the common law judges) could not have so descended. Then they held that a trust was essentially the same as a use, and so its treatment for inheritance could not be different. Hence the deed of 1718 did not turn Elizabeth into a purchaser. A small difference between them was that Lord Mansfield took the view that if the deed of 1718 (contrary to his dissenting view on the main point for the Crown) barred the escheat to the Crown, it gave the right to the maternal heir. But

83 At this date descent was traced from the last ‘purchaser’ who had seisin, though in practice this was the last person who took possession without having inherited. The rules of descent were changed by the Inheritance Act 1833 (3 & 4 Will IV, c 106), and also by the Law of Property Amendment Act 1859 (22 & 23 Vict c 35). 84 1 Eden 215, 28 ER 667. 85 1 Eden 257, 28 ER 682. 86 Relying on Abbot v Burton (1708) 2 Salk 590, 91 ER 494; Godbold v Freestone (1694) 3 Lev 406, 83 ER 753; Martin v Strachan (1742) 2 Stra 1179, 93 ER 1111; Rolle, Abr, vol 2, fo 780.

Burgess v Wheate 135 the Lord Keeper could not see how this could be.87 The deed of 1718 made no difference in the trust. In his opinion the Master of the Rolls went into more detail on the maternal heir’s claim, dealing with a specific argument raised by his counsel. The heir had additionally argued that whether or not the deed of 1718 turned Elizabeth into a purchaser for the purposes of the common law, she was at least to be treated as a purchaser in equity. This was on the basis that ‘equity regards as done that which ought to be done’ and that (after the death of her husband) she was absolutely entitled to the legal estate which they held and could have called for a conveyance of it from the trustees.88 But, as Sir Thomas Clarke MR said,89 nothing is looked on in equity as done, but what ought to have been done, not what might have been done. Nor will equity consider things in that light in favour of every body; but only of those who had a right to pray it might be done. The rule is, that it shall be either between the parties who stipulate what is to be done, or those who stand in their place. Here Mrs Harding never prayed a conveyance, and one cannot tell whether she ever would;90 and the maternal heir is not to be considered as a privy in blood, but a mere stranger.91

So this specific argument raised two separate problems for the maternal heir. First, there was no contract or covenant to transfer the fee; it was simply that Elizabeth had the right to ask for it (but never did). Secondly, even if there were (or were to be treated as being) a contract to transfer, the maternal heir, not being a party to the contract or a child of the marriage who (in the case of a covenant contained in a marriage settlement) could be treated as having given ‘marriage consideration’, was a mere volunteer and not entitled to enforce the supposed contract.92 As Sir Thomas Clarke went on to say,93 these points were reinforced by the situation regarding the mill. Unlike the greater part of the land, there was a contract or covenant by the mortgagee’s trustees to transfer the mill to Elizabeth, and the consideration had been fully paid. But the conveyance at law was never made. So in that case equity did treat the position as if the conveyance had been made. Hence Elizabeth was to that extent to be regarded in equity as a ‘purchaser’, and therefore the maternal heir could, in default of paternal heirs, inherit her (equitable) interest in the mill. Lord

87

1 Eden 257–58, 28 ER 682. This is known today as the rule in Saunders v Vautier (1841) 4 Beav 115, 49 ER 282, Cr & Ph 240, 41 ER 482, but it existed long before that case: see eg Lord Pawlet’s case (1685) 2 Vent 366, 86 ER 489; Love v L’Estrange (1727) 5 Bro PC 59, 2 ER 532. 89 1 Eden 186–87, 28 ER 656. 90 She had no need to, having her own legal life estate under the common law settlement of 1695 and her power of appointment under the settlement of 1718. 91 1 Eden 186–87, 28 ER 656. 92 Cf Pullan v Koe [ 1913] 1 Ch 9 (children within the marriage consideration). 93 1 Eden 187, 28 ER 656. 88

136 Paul Matthews Mansfield did not mention the mill in his opinion, but Lord Keeper Henley did, as shortly as possible: ‘… and therefore [the maternal heir’s] bill must be dismissed, except as to the mill, &c.’94

(2) The Claim of the Crown The claim of the Crown was to an escheat of the lands in respect of which Elizabeth had had an equitable interest or estate at the time of her death without heirs entitled to inherit, and notwithstanding that there was then a trustee who owned the legal title and constituted the feudal tenant. It was at once more complex and simpler than the claim of the maternal heir. It was more complex because it depended on an analysis of the relationship between the feudal lord and his tenant, and an extension of that relationship to the person who in equity was entitled to enjoy the property. It was simpler because there was only a single strand to the argument. Should the position with respect to tenants of the legal estate apply also to the persons entitled in equity? The three judges were split on this question. The two Chancery judges, the Master of the Rolls and the Lord Keeper, said ‘No’. The single common law judge, the Lord Chief Justice, said ‘Yes’. (a) The Master of the Rolls Sir Thomas Clarke MR called it ‘the great Question’. He approached it in three stages: a) in relation to legal estates before the invention of uses; b) in relation to uses before the Statute of Uses; c) in relation to trusts since the Statute of Uses. As to the first stage, he held that an escheat was in its nature feudal, being a right of the lord to have the land back from the tenant in certain circumstances. This was not where the estate granted expired naturally (when a reverter occurred) but when there was an accidental determination of it. Over time changes took place in the feudal relationship, such as permitting the tenant to alienate his estate, first only with the lord’s permission and then without, and then also to encumber the land, and to subject it to dower. These changes made escheat for want of heirs both less likely and less valuable to the lord. As to the second stage, he held that the cestui que use was not the tenant, and the legal estate in the land was not to be subject to encumbrances created by him, and nor to his debts. Neither was it subject to escheat on

94

1 Eden 257, 28 ER 682 (emphasis added).

Burgess v Wheate 137 the death of the cestui que use without heirs. Statute intervened to remedy some of the inconveniences of the distinction between the legal estate and the use, such as enabling the creditors of the cestui to execute against the land and the lord to have the fruits of tenure, such as wardship and heriots, against the cestui. But there was no statutory extension of the lord’s right of escheat. As to the third stage, he held that a trust was simply the same idea as a use before the statute: ‘[T]here was one use which the statute did execute, and another which it did not; so trusts succeeded uses. Aliusque et item nascitur. And as a use could not be on a use, it took the name of a trust …’95 The Master of the Rolls referred to two precedents which he regarded as in point. In relation to one, the case of a use before the Statute of Uses, and referred to only as ‘5 Ed 4, pl 18, fo 7b’, he commented:96 If the lord is at law entitled to escheat on death without heirs, or attainder of feoffee to uses, and not on the death, &c, of cestuy qui use, it strengthens the authority of the case; that if it had been determined otherwise, it would have given him a double chance for his escheat.

According to the judge, each of Brooke and Bacon commented favourably on this case in his Abridgement, though they differed as to whether the feoffee to uses could keep the property for himself (Brooke) or could not, ie had to hold it for pios usus or for the feoffor (Bacon).97 The other case was Sir George Sands’ case,98 a case of escheat for felony, involving a trust after the Statute of Uses. Ralph acquired a 99-year lease of certain lands in the manor of East Greenwich in his own name, and later bought the landlord’s interest (ie the fee simple reversion) in the same lands in the name of his son-in-law George, as trustee for himself. It is important to notice that the fee simple was held directly from the Crown,99 and not from an intermediate lord. By his will, Ralph directed that George and another person (whom he appointed his executor) convey a particular part of the estate to each of the two sons then living of George, his grandchildren, Freeman and George Junior, and the remainder to all of George’s sons by his wife Jane (Ralph’s daughter) who should be living at George’s death.

95

1 Eden 194, 28 ER 659. 1 Eden 198, 28 ER 660. 97 The judge gives no sufficient references in his judgment to enable the identification of the passages in the Abridgments of Brooke and Bacon (or even the editions) which he has in mind. 98 (1676) Hard 405, 145 ER 520; (1679) Hard 488, 145 ER 561; (1667) 1 Sid 403, 82 ER 1182; 2 Freem 129; (1669) 3 Ch Rep 33, 21 ER 720; (1670) Nelson 130, 21 ER 808. The first and third of these reports are very short. It is also summarised in Sir Matthew Hale’s posthumous Historia Placitorum Coronae: History of the Pleas of the Crown (London, Nutt and Gosling, 1736) vol 1, 249–51. 99 See Hard 405, 145 ER 520; Hale (n 98) 1, 250. 96

138 Paul Matthews After Ralph’s death in 1633, the executor renounced, and George the trustee obtained a grant of administration of the estate, thus becoming legal owner of the long lease. However, George never executed any conveyance to any of his sons. In 1635 Freeman died without issue. After Freeman’s death, George had had another son, also (confusingly) called Freeman. In 1655 George Junior was killed by Freeman the second, who being his brother was also his heir at law.100 Freeman was convicted of murder, sentenced to death and executed. This left George without any sons but still holding the legal estates (the lease and the fee simple). He also took out administration to the estate of George Junior. The Attorney-General brought an action in the Court of Exchequer against George, claiming that the trusts had been attainted by felony. The case was before the court for several years, with judgment being finally given in Easter101 Term 1669. It will be recalled that the Court of Exchequer was the only one of the common law courts to exercise an equity jurisdiction,102 so its judges had to be versed in the doctrines of equity and trusts. Only two judges, Hale CB103 and Turnor B,104 are mentioned in the reports as having decided the case, the other two judges being said to be unavailable.105 Their decision was that the equitable interest in neither the fee simple nor the lease went to the Crown. Unfortunately, even in relation to the fee simple, the language of the reports is largely of forfeiture (as of for treason) rather than escheat (for felony),106 although since the fee simple was held of the Crown any escheat would also be to the Crown, and the language makes clear that the word ‘forfeiture’ was being used in a 100 A father could not be the heir at law to his son (inheritance could go to descendants or to collaterals, but not to ascendants) until the Inheritance Act 1833. 101 The reports that give a date say that judgment was given in Easter Term, though Hale’s History of the Pleas of the Crown (n 100) vol 1, 249, says it was Michaelmas Term (in which case it must have been very early on, as Atkyns B died on 9 October 1669). 102 It was abolished in 1841. 103 Sir Matthew Hale was appointed Chief Baron of the Court of Exchequer in 1660, and in 1671 was appointed Chief Justice of the Court of King’s Bench. 104 Sir Christopher Turnor was appointed a Baron of the Court of Exchequer in 1660, and died in 1675. In Burgess v Wheate the Master of the Rolls calls him Trevor, but this must be a slip. Turnor should not be confused with Sir Edward Turnor, appointed Chief Baron in 1671, who appears to have been no relation. 105 Rainsford B had been transferred to the Court of King’s Bench in February 1669, and his successor, Littleton B, was not appointed until February 1670. In 1669 Atkyns B was then over 80 years old (the reports say he was ‘Disabled by Age’), and died in October that year, being replaced by Wyndham B only in June 1670. In addition to great age, Atkyns B may have been reluctant to take an active part in the case as his son Robert was counsel for the defendant. In Burgess v Wheate the Master of the Rolls said, however (at 1 Eden 200–201, 28 ER 661): ‘It is said that only two judges gave opinions; but no one can suppose that there were but two judges during four years in that court. If they differed, Hale would never have given his opinion without mentioning it. In his Pleas of the Crown (Vol 1 p 249), he says it was una voce resolved, so no doubt but all the judges of the court concurred.’ 106 Though Sir Matthew Hale’s own History of the Pleas of the Crown, vol 1, 250, correctly says ‘yet the trust escheted not to the crown, but Sir George held it discharged of the trust’.

Burgess v Wheate 139 loose sense: ‘And if the inheritance be forfeited for felony, it must be to the lord by escheat, which cannot be, because he hath cestui que estate for his tenant …’107 As to the fee simple, therefore, there was still a tenant (George) and so there could be no escheat. This raised the question: If the King did not take the equitable interest in the fee simple estate in the land then who did? The answer was:108 The feoffee Sir George Sands shall now hold the lands discharged of it, as in case of the grantee of a rent in fee simple, who dies without heirs, the tenant of the land shall hold it discharged of the rent because there is no other that has any title to it …

As to the lease, that was a chattel, and therefore would be forfeit to the Crown on conviction for felony.109 But this lease was never in the person attainted. Instead it was in the lessee (Ralph), or after his death in his personal representative (George). Nor was it ever intended to go to Freeman the second. And George had obtained it en autre droit (ie as personal representative) compared with the fee simple, so that it did not merge with the latter estate. As a result the Crown could not claim it, even though Freeman the second might be George Junior’s heir, because being his killer he could not inherit from him.110 Sir Thomas Clarke next considered some criticisms of Sir George Sands’ case, all of which he dismissed. The most important was the argument based on the converse situation, ie where the legal tenant died without heirs but the legal estate had been subject to a trust for third parties. This argument was that111 Hale supposes the land will, on the trustee’s attainder, or death sans heir, escheat to the crown, discharged of the trust; whereas in equity it will be liable to the trust. And then it is said, if the lord takes the estate subject to the trust, he ought to have in return a reciprocal benefit on the death of cestuy que trust without heir. I think this position and inference not warranted by any judicial determination.

He supports this view by considering the authorities in some detail. His conclusion was that, whereas the Crown took a forfeiture subject to equitable

107

2 Freem 131–32. Hard 497, 145 ER 567; cf Nelson 133, 21 ER 809; 3 Ch Rep 36, 21 ER 722 (to similar effect). 109 A rule abolished by the Felony Act 1870, s 1. 110 A rule which survived the Felony Act 1870 (see Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147), and the effect of which was mitigated by the Forfeiture Act 1982: see eg P Matthews, ‘Property, pensions and double punishment: the Forfeiture Act 1982’ [1983] Journal of Social Welfare Law 141. 111 1 Eden 201, 28 ER 661. 108

140 Paul Matthews claims, the lord took an escheat free from them.112 It seems that this was because a forfeiture was a transmission of the estate to the Crown, but the escheat came in as a matter of tenure; the estate of the tenant had simply come to an end, and the trust could not be greater than the legal estate. The trust was of a flawed asset, so to speak. But even if it had been true that the lord had taken the escheat subject to any trust, the Master of the Rolls saw no reason for the lord therefore to have ‘a reciprocal equity’113 on the death of the beneficiary without heirs, as opposed to the case where the tenant was attainted for felony. Moreover, he saw equitable escheat as giving the lord a double chance at common law, ie both on the death of the beneficiary without heirs and also on the death of the trustee, unless the court of equity would intervene, and he considered that cases of escheat should not be brought into equity. Clarke also considered and rejected the argument that the Crown (as lord) was within the trusts of the deed of 1718 as Elizabeth’s heir or appointee. This would make the lord’s claim one through the tenant (‘in the per’) rather than superior to him (‘in the post’). His conclusion was:114 I am for following the analogy of the legal escheat as well as of the legal descent, and for pursuing legal principles; because the law gives the escheat only for want of a tenant, equity must do the same. If it did not, it would be making law, instead of administering equity.

If the Crown and the maternal heir both failed, what was the position of the trustee (here, his real representatives, he having died)? Unlike Hale CB in Sir George Sands’ case, Clarke was more circumspect:115 I give no opinion of the right of the trustee. I give my opinion that neither the maternal heir nor the crown has any right. If the trustee came into a court of equity,116 I might be of opinion that he had no right … but have no occasion at present to enter into the merits of the defendant’s defence … If plaintiff has no right, defendant may hold till a better right appears; the possibility of that happening, shows the impropriety of entering into consideration of the right of the trustee. I am clearly of opinion that the invidiousness imputed to his defence, ought not to give the plaintiff a better right.

112 Lord Macclesfield had taken the same view, obiter, in Peachy v Duke of Somerset (1721) 1 Stra 447, 454; 93 ER 626, 630. 113 1 Eden 203–04, 28 ER 662. 114 1 Eden 212, 82 ER 666. 115 1 Eden 212–13, 82 ER 666. 116 It will be recalled that the surviving trustee had got into possession after Elizabeth’s death, and that it was the maternal heir and the Crown that were seeking the assistance of the Court of Chancery, rather than the trustee.

Burgess v Wheate 141 (b) The Lord Chief Justice Lord Mansfield at the outset put the trustee’s position in the litigation as follows:117 The trustee objects to the heir’s claim, because he says the deed of 1718 has made no alteration as to the beneficial estate, of which Mrs Harding died seised ex parte paterna, and opposes the king’s right, because it has changed the right of escheat, both at law and in equity; and upon a general objection, that the plaintiffs must recover upon their own strength to entitle them to relief: for it is not enough for the Plaintiffs to shew that the defendant has no right, but that they have a better, upon equitable grounds; and, in the case of a trust, must shew a better right within the terms of the creation of the trusts.

Again, therefore, it was clear that the trustee did not claim rights but asked only that the claimants show a better right than the possessor. The Lord Chief Justice divided up his opinion into four parts as follows:118 First, the nature of trusts of land, and the rules which govern them. Secondly, the nature of that right, by which the king claims in the present case. Thirdly, whether, if the trustee had died sans heir, the king must not, in that case, have taken the land in a court of equity, subject to the trust. Fourthly, I shall apply the result of this inquiry as between the king and the trustee, to the particular point immediately in judgment.

As to the first part, Lord Mansfield began by accepting that a use and a trust were essentially ‘two names for the same thing’.119 However, he considered that the practice of the Court of Chancery had changed, so that uses relating to land before the Statute of Uses were purely choses in action, ie personal, whereas trusts now were real estates. The jurisdiction in respect of uses had been narrow, but that in respect of trusts was wide. The only difference now between trusts and legal estates was ‘the forum where they are adjudged’.120 Thus, ‘the trust is the estate at law in this court [ie the Court of Chancery]’.121 And therefore,122 on clear law and reason, cestuy que trust is actually and absolutely seised of the freehold in consideration of this court; and therefore that the legal consequences of an actual seisin of a freehold, shall, in this court, follow for the benefit of one in the post.

117 118 119 120 121 122

1 Eden Ibid. 1 Eden 1 Eden 1 Eden 1 Eden

216, 82 ER 667. 217, 223, 224, 226,

82 82 82 82

ER ER ER ER

667. 670. 670. 671.

142 Paul Matthews As a result, for Lord Mansfield, the reasons why escheat did not apply to uses were not relevant to the question whether it should apply to trusts. Secondly, he considered the nature of the right of escheat. For him, escheat was originally a strict reversion in the sense that death without an heir determined the estate granted. But once the tenant could alienate without the lord’s consent, the nature of the right changed to ‘a sort of caducary123 succession’.124 And ‘therefore the lord by escheat is, in Co Litt 215 b, with accuracy considered as assign in law’.125 It was like the succession to personal estate—‘the king is last heir where no kin’.126 Thirdly, Lord Mansfield turned to the question whether on the death of the trustee without heirs the Crown took the land subject to the trust. His view was that ‘land escheated should be subject to the trust’, as ‘most consistent with the lord’s right’.127 Fourthly, the Lord Chief Justice applied these principles to the facts of the case. If the trust were the land, the lord should have an escheat. If the lord took an escheat as assignee in law then he was within the grant in the deed of 1718, being Elizabeth’s ‘assignee’. His conclusion was that128 [u]pon the whole, I think the king is entitled to a decree; but if I am wrong in the principles I go upon, or (as is possible) in the application of them, if the deed of 1718 has conveyed a new fee, and changed the line of heirs, upon which the escheat was to arise in this court as well as at law; then as between the heir ex parte materna and the trustee, I think the heir is entitled to a preference and a decree.

So Lord Mansfield would have found for the Crown. If not, he would have found for the maternal heir. (c) The Lord Keeper But Lord Mansfield’s views did not prevail. The Lord Keeper’s views on this part of the case were similar to those of the Master of the Rolls. Whether he was giving the sole judgment, with the advice of the other two judges, or was giving only one of three judgments, the result is the same. Sir Robert Henley agreed that escheat arose under the rules of tenure, and that as long as there was a tenant seised of the land there could be no escheat. It made no difference if the tenant had granted a use (before the Statute of Uses) to a cestui que use who then died without heirs. The Lord Keeper explained

123 124 125 126 127 128

Simply meaning by lapse or forfeiture. 1 Eden 228, 82 ER 672. Ibid. 1 Eden 229, 82 ER 672. Ibid. 1 Eden 237, 82 ER 675.

Burgess v Wheate 143 this as the result of the termination of the use granted, and therefore equity would not intervene and issue a subpoena directed to the feoffee to uses. Next he dismissed the argument that the Crown was an ‘assign’ within the deed of 1718. But Henley said this was meant for express assigns, and did not cover the lord on the failure of Elizabeth’s heirs. Thirdly, he dealt with the argument based on reciprocity. He expressed it as129 that the lord must have the escheat, either on the death of cestuy que trust without heirs, or on the death of the trustee without heirs, discharged of the trust; but if he cannot have the escheat in equity, while the trustee stands tenant, it would be monstrous and absurd that the cestuy que trust should be prejudiced in putting the estate in trust for the convenience of his family.

This argument too failed. There was nothing ‘absurd or injurious’ in it. The law was known, and ‘the creator of the trust determines to take the convenience of a trust, with its inconveniencies’.130 And the authorities were clear that where the tenant was seised to a use before the Statute of Uses, the death of the cestui que use without heirs did not give rise to an escheat. So, unless trusts could be distinguished from uses, that was that. Henley then discussed alleged differences between them, and concluded that he could not distinguish them to any extent relevant to this case:131 It appearing therefore to me certain, that at law there can be no escheat while there is a tenant de jure, that in equity there was none while trusts were called uses, and that trusts and uses are essentially the same, can I possibly think that I have authority to say, that every lord in England shall lose his legal right of escheat in all cases where any man for his own convenience has put his land in trust. It strikes me that this would be jus dare, not jus dicere.

He then examined Sir George Sands’ case in some detail, and held it rightly decided. In the course of this part of his opinion, he stated his view as to the policy by which the Crown cannot take the interest of the cestui que trust on the latter’s death without heirs:132 But how came the law not to devolve it on the crown quasi ultimus hœres? Because confiscations are repugnant to the genius of a free country, and the law of England seems to have confined them to the single case of a vacant possession (where they do not operate as penal forfeitures), and that not so much for the sake of the crown, as to prevent disturbances of the public peace in society.

It may be that this was an attempt to justify his decision antithetical to the Crown in a way that might find political favour. It is notable, that, like the

129 130 131 132

1 Eden 246, 82 ER 678. Ibid. 1 Eden 251–52, 82 ER 680. 1 Eden 253–54, 82 ER 681.

144 Paul Matthews Master of the Rolls, Henley made no statement as to the right of the trustee. It was all about the inability of the claimants to take the land away from him.

J. THE EFFECT OF THE DECISION

So the decision did not give the trustee or his representatives a beneficial title. It merely held that neither of the claimants was entitled to take the land away from him (except the maternal heir in relation to the mill, where there was a specifically enforceable agreement). Nothing in the decision deals with the converse case, where the maternal heir or the Crown was in possession, and the trustee sought to take the land away by force of the mere legal title. Other decisions thereafter would have to deal with that situation. On the one hand, the court accepted the ‘propertification’ of the equitable rights of the beneficiary. As Lord Mansfield had said, whereas the use had originally been seen as a personal right against the feoffee, the trust was now seen, some 400 years later, as a property right, good against the trustee and many (if not in practice most) third parties. (Where Lord Mansfield went wrong was to think that the change in attitude happened much later than it did. In particular, it did not happen at the time of the change from uses to trusts.) On the other hand, the court was refusing to extend the common law right of the lord to escheat to equitable interests arising under trusts. That right was a part of the doctrine of tenure, and the doctrine of tenure and the need for feudal services could be satisfied with the trustee as tenant at common law. If the common law courts would not look beyond the (common law) tenant/trustee, there was no need for courts of equity to extend the effect of the common law feudal system any further than that. Burgess v Wheate is a pivotal case, looking back at that old system and treating it as a thing of the past, whilst at the same time emphasising that the trust is an institution based on the conscience of the trustee being affected. If the conscience is not affected then in effect the trustee is free to deal with the property as he wishes. The case was actually all about who could do this, rather than the consequence of there being no such person. It decided that in the circumstances neither the maternal heir nor the Crown could affect the conscience of the trustee. But it also declined to say that the trustee was therefore the beneficial owner. So Burgess v Wheate depends upon the idea of conscience. This is as true today in the law of trusts as it was then. In Westdeutsche Landesbank v Islington LBC,133 for example, it was argued that the court could award compound interest where money had been paid by mistake to another who was then ordered to repay it. The majority of the House of Lords held that

133

Westdeutsche Landesbank v Islington BC [1996] AC 669.

Burgess v Wheate 145 in order for the court to have power to award compound interest there would (in this case) have to be established that there was a trust for the plaintiff. They held that there was no trust, not least because there was no relevant property in the hands of the defendant at any time when it knew of the circumstances giving rise to the obligation to repay. Lord BrowneWilkinson said:134 Equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him (express or implied trust) or which the law imposes on him by reason of his unconscionable conduct (constructive trust).

On the other hand, as shown by Burgess v Wheate, where there once was a person who could affect the conscience of the trustee, but that person has now vanished and (unusually) there is no one who can claim to succeed to the rights of that person, the trust obligation in effect disappears, either particularly or generally, as the case may be. I say ‘in effect’ because, as so often happens in trust law, we may in fact not know at first (indeed, in some cases, not for a long time) whether there is any such person or not. Hence the mechanism of the so-called Benjamin order,135 to deal with the case where a beneficiary disappears and cannot (or cannot yet) be presumed or proved to be dead. Another example is where a trustee distributes to persons he believes to be the true beneficiaries entitled what he thinks is the remaining trust property. If he is right on both counts, the trust has probably136 come to an end. But if either belief is wrong (even without fault on his part), and there are beneficiaries entitled to trust property, then the trust continues.137 It is just that he is not aware of the continuing claim on his conscience. This would have been the case, for example, if, unknown to all the parties in Burgess v Wheate, there had been a paternal heir of Elizabeth Harding waiting in the wings, to spring out, like the dénouement of a bad whodunnit, after the case was over.138 Of course, if a trustee in such a case, before learning of his error, deals with the trust property to his prejudice, this does not mean that he must be personally liable in such a case. For example, he may have

134

Ibid, 705. Re Benjamin [1902] 1 Ch 723; Re Green’s WT [1985] 3 All ER 455. 136 A weasel word to cope with problems arising from, amongst other things, the inherent possibility of setting aside the exercise of powers, etc. 137 If the trustee has in breach of trust dissipated the property, or allowed it to be destroyed, his account will be falsified, and he will be unable to say that he does not still have the property; so he cannot deny the continuing existence of trust property. Even if he could, he would still have to make equitable compensation from his own resources to replace it. 138 Cf Re Gosman (1880) 15 Ch D 67, where the next of kin only came forward six years after it had been decided that there were none. 135

146 Paul Matthews a restitutionary defence such as change of position,139 or the court may relieve him of liability under the Trustee Act 1925, s 61. Some may wonder at the morality of the trustee’s position in such a case, where there is no other claimant in equity. How can a person who takes as trustee, knowing that he is not intended to enjoy beneficially, retain the property for himself? Here the importance of the pragmatic relativism of the common law shows itself. The question being asked is not an abstract or an absolute one, ie can the trustee enjoy the property at all? Instead it is a concrete and a relative one, ie can the trustee enjoy the property of which he is the legal owner when there is no one to benefit under the terms of the trust, and no one to stand in the shoes of the settlor? The trustee’s conscience is, after all, affected only in favour of the beneficiaries and their successors in title. Thus and no further.

K. SUBSEQUENT DEVELOPMENTS IN THE LAW

(1) Case Law The decision in Burgess v Wheate was followed in a number of cases of trusts of freehold estates.140 It was also applied where the mortgagor of an estate died intestate without heirs, and the equity of redemption could not pass to anyone (including the feudal lord, by escheat), so that the mortgagee simply kept the property.141 But the law did not stand still. There were case law developments and refinements. Moreover, Burgess v Wheate did not deal with all the fact situations which might arise. Neither was it universally popular in the years after its decision. Indeed, the profession seems to have been split. Thus, in Middleton v Spicer,142 just over 20 years later,143 where property was given by will to an executor for a purpose which failed, Lord Thurlow LC initially considered that Burgess v Wheate applied. However in argument on the same occasion he said of that case that144

139 As Norris J suggested at first instance in Futter v Futter [2010] EWHC 449 (Ch), [33], reversed on other grounds, [2011] EWCA Civ 197. 140 See eg Taylor v Haygarth (1844) 14 Sim 8, 60 ER 259; Davall v New River Company (1849) 3 De G & Sm 394, 64 ER 531; Cox v Parker (1856) 23 Beav 168, 52 ER 1072; Re Gosman (1880) 15 Ch D 67. 141 Gordon v Gordon (1821) 3 Swanst 400, 36 ER 910; Att-Gen v Duke of Leeds (1833) 2 My & K 343, 39 ER 974; Beale v Symonds (1853) 16 Beav 406, 51 ER 835. 142 Middleton v Spicer (1783) 1 Bro CC 201, 28 ER 1083. 143 Note that at this date neither of Blackstone’s nor Eden’s reports of the case had yet been published, though Blackstone’s appeared shortly afterwards. 144 (1783) 1 Bro CC 201, 204–05; 28 ER 1083, 1085. More generally, see the note (2) in Eden’s report at 259–61, 82 ER 683, and 1 Belt’s Supp 368, which show the state of professional opinion at that time. In Williams v Lord Lonsdale (1798) 3 Ves Jun 752, 757;

Burgess v Wheate 147 Burgess v Wheate was determined upon divided opinions, and opinions which continue to be divided, of very learned men. The argument of the defect of a tenant seems to be a scanty one. Whether that case is such a one as binds only when it occurs speciatim, or affords a general principle, is a nice question.

But when the matter came to judgment, the Lord Chancellor had changed his mind, and the decision went on a different point. The property in that case comprised (i) copyholds subject to an existing contract to sell, and (ii) leaseholds which were given to the executors to sell and pay the proceeds to a charity falling within the mortmain legislation. The executor also received a beneficial legacy. The lands were sold and the proceeds treated as part of the personalty of the deceased.145 Hence Burgess v Wheate was irrelevant. The gift to the charity failed for mortmain. Because of their beneficial legacies, the executors were held to be trustees of the residue for the next of kin rather than beneficial owners. The problem was that there were no next of kin to be found. The Crown claimed as part of its prerogative right to bona vacantia, and succeeded. Bona vacantia extended to equitable interests. So where trustees held personalty on trust for beneficiaries who died without next-of-kin, Burgess v Wheate had no part to play. The law allowed the Crown, in right of its prerogative, to step into the shoes of the beneficiaries, and the trustees’ consciences continued to be affected. This reasoning was followed in a number of later decisions.146 The rule extended even to the equity of redemption in mortgaged leaseholds.147 A second Crown prerogative was rarer in practice, and different in scope, but produced much the same effect in practice. This was the prerogative of taking the property of aliens, who could take but not hold real property. It applied not only to direct ownership, but also to indirect ownership through trusts. Thus where trustees held real property for the benefit of aliens, the Crown could enforce the trust for its own benefit.148

30 ER 1255, 1257, Lord Eldon rather archly said ‘Burgess v Wheate, supposing it to be well decided, establishes …’ (emphasis added). And in Taylor v Haygarth (1844) 14 Sim 8, 16; 60 ER 259, 262, Shadwell V-C alluded to the poor reception of the decision in saying: ‘Whatever opinion might have been originally entertained about Burgess v Wheate, it has remained unreversed for more than eighty years …’ (emphasis added). 145 The copyholds because of the contract to sell entered into by the testator during his life, and the leaseholds because (i) they were chattels real, and (ii) they were also made subject to a trust for sale by the will. 146 Barclay v Russell (1793) 3 Ves Jun 424, 30 ER 1087; Taylor v Haygarth (1844) 14 Sim 8, 60 ER 259; Dyke v Walford (1846) 5 Moo PC 434, 13 ER 557; Powell v Merrett (1853) 1 Sm & Giff 381, 65 ER 167; Cradock v Owen (1854) 2 Sm & Giff 241, 65 ER 382; Re Gosman (1880) 15 Ch D 67; Cunnack v Edwards [1896] 2 Ch 679; Re Bond [1901] 1 Ch 15; Re Cullum [1924] 1 Ch 540; see also Colchester v Law (1873) LR 16 Eq 253. 147 Re Wells [1933] Ch 29. 148 Barrow v Wadkin (1857) 24 Beav 1, 53 ER 257.

148 Paul Matthews So far we have considered rules which applied only to one kind of property, real or personal, but not both. The question then to be asked is how far, if at all, these rules were affected by the equitable doctrine of conversion, by which realty could be regarded as personalty, and personalty as realty, because it was subject to a binding equitable obligation to turn it from one to the other. Could personalty subject to conversion be escheated to the lord as if it were realty? Could realty subject to conversion be forfeited to the Crown as if it were personalty? In relation to the rights of the Crown at least, whether by escheat, forfeiture or bona vacantia, the answer was ‘No’. Conversion was ignored in considering the Crown’s rights. It neither enlarged nor diminished them. This was held first in relation to escheat,149 then bona vacantia150 and then in relation to a forfeiture for felony.151 The point was said to be that there was no equity in the Crown to call for a conversion to be able to take property which otherwise it would not be able to take, and the court later considered that, if that was right, then so was the converse.152 The decision in Burgess v Wheate was also followed in relation to copyhold land,153 though the formalities involved in the transmission of such land complicated matters. A new copyhold tenant, whether by purchase or inheritance, had to be admitted by the lord in his manorial court, in order to try his title. It was held in 1798 that the Court of Chancery would not order the lord of the manor to admit the heir of a trustee whose beneficiaries had died intestate and without heirs, as he had no equity. Lord Eldon said: ‘How do you give me jurisdiction? Have you found any case where a person having the legal estate, and only the legal estate, can come into this court for any purpose?’154 Seven years later the same heir (or his advisers) saw the light, and crossed to the other side of Westminster Hall. The Court of King’s Bench thereupon made a common law order of mandamus against the same lord on the same facts, the court considering that, since the legal estate was in the heir, ‘that is sufficient for us to act upon in giving him all opportunity of trying his title, which is all that the admission will enable him to do’.155 All these procedural problems have now gone, of course. Copyhold land was all turned into freehold under the property reforms of 1925.

149

Walker v Denne (1793) 2 Ves Jun 170, 30 ER 577. Henchman v A-G (1834) 3 My & K 485, 40 ER 185; Taylor v Haygarth (1844) 14 Sim 8, 60 ER 259; Re Bond [1901] 1 Ch 15. 151 Re Thompson’s Trusts (1856) 22 Beav 506, 52 ER 1203; Talbot v Jevers [1917] 2 Ch 363. 152 Talbot v Jevers [1917] 2 Ch 363. 153 Henchman (n 150); Gallard v Hawkins (1884) 27 Ch D 298. 154 Williams v Lonsdale (1798) 3 Ves Jun 752, 757; 30 ER 1255, 1258. 155 R v Coggan (1805) 6 East 431, 432; 102 ER 1352, 1354. 150

Burgess v Wheate 149 The last—and potentially the most difficult—question to consider from the case law is this. Burgess v Wheate is a case where the purported heir and the Crown claimed against the trustee in possession. What would happen if the trustee was out of possession and brought his claim against the possessor? Would the claim succeed then? There are two main cases to consider. The first of these cases is Onslow v Wallis.156 A trustee (A) held a freehold property on trust for a beneficiary (B) absolutely. B made a will leaving the freehold (necessarily equitable so far as she was concerned) to the trustees of the will (C and D) on trust to sell the property, and out of the proceeds to pay her debts and some ‘legacies’ to be set out in a certain document. After B’s death, a widow and apparently without heirs, this document, however, could not be found. So the ‘legacies’ failed. But the debts survived. The first trustee (A) offered to pay B’s debts and claimed to be entitled to retain the freehold for his own benefit. The will trustees (C and D) were out of possession of the freehold, and brought these proceedings against A for a conveyance to themselves. C and D argued that they had ‘positive trusts to perform under the will’, obviously referring to the trust to pay debts, and therefore needed the legal estate from A. A argued that the court would not assist C and D, except to pay these debts (which A would pay), and therefore would not help them in these circumstances. Lord Cottenham LC in argument distinguished Burgess v Wheate, as a case which157 differs from the present. The heir at law claims in his own right, but trustees do not: they claim only because no other party is entitled. The difficulty in the way of the Defendant [ie A] is this, that, under the authority of Burgess v Wheate, he must be taken as holding, not as a party entitled, but because there is no one else to claim. The question, therefore, is whether the will has not given the Plaintiffs [ie C and D] a title against him.

So the issue was whether C and D had a title to take the legal estate in the freehold away from the first trustee. The Lord Chancellor held that they had. In Burgess v Wheate there was no one who could take the property away from the trustee in possession. Here the will trustees could do so. He proceeded on the ground158 that there are persons appointed by the owner of the property, to whom the property is to be conveyed. They are the only parties having right to it; whether or not they have power afterwards to dispose of all the beneficial interest, is a

156 157 158

Onslow v Wallis (1849) 1 Mac & G 506, 41 ER 1361. Ibid, 513, 1364. Ibid, 515, 1365.

150 Paul Matthews matter with which the Defendant Wallis, as mere owner of the legal estate, has nothing whatever to do.

The other case was Re Lashmar, Moody v Penfold.159 Factually it resembled Onslow v Wallis, though it was even more complex. Under the will of A, who died in 1859, Penfold and others held a freehold property on trust for certain life tenants, with remainder over to B absolutely. B died in 1868, long before the life tenants did. By his will, B left all his estate to Moody and another on trust for B’s widow for her life, with remainder over to B’s illegitimate son H absolutely. H, however, died in 1880, intestate and without heirs or creditors, in the lifetime of B’s widow, who died in 1886. The surviving life tenants under A’s will did not die until 1889. It was therefore only in 1889 that the question arose as to what should happen to the freehold property still vested in Penfold, by now the sole surviving trustee of A’s will. Moody (the surviving trustee of B’s will), claimed that Penfold should convey to him, even though all the beneficiaries of B’s will trust were now dead, and H had died without will, heirs or creditors who could make a claim to or upon his equitable estate.160 Hence the quotation at the head of this chapter. The Court of Appeal tested the question whether the trustee of B’s will (Moody) had any equity to take the property from Penfold, by considering what would have happened if (contrary to the facts) B at the time of his death had had a legal rather than an equitable estate in the land. What would have happened to such a legal estate under the will? Here the Statute of Uses was relevant. It will be recalled that, until it was repealed in 1925, the Statute would execute a use or trust of a legal estate in freehold land by vesting that estate in the beneficiary of the trust rather than leaving it in the trustee. Here, of course, there were two beneficiaries: B’s widow (who took a life interest) and H (who took an absolute interest in remainder). So it could vest in each for the appropriate legal estate. But it was settled law that the Statute of Uses would not execute a use or trust of land if the trustee had a duty to perform, eg to receive rents and profits from the land and pay them over to beneficiaries, or to keep a married woman’s property separate so that it did not, by vesting in her, pass under the control of her husband.161 In Onslow v Wallis, B gave the property to the trustees of her will, on trust to sell it and out of the proceeds pay debts. So the Statute had no application.

159

[1891] 1 Ch 258. He had also died before the Intestates Estates Act 1884, s 4, which extended escheat to equitable estates (and is discussed below). So the Crown or other mesne lord had no claim to stand in his shoes as such beneficiary. 161 Nevil v Saunders (1686) 1 Vern 415, 23 ER 555; 1 Eq Cas Abr 383, and cases there cited. 160

Burgess v Wheate 151 In Re Lashmar, the important factual difference from Onslow v Wallis lay in the wording of B’s will. B gave the property to the trustees of his will ‘upon trust, to pay to [B’s widow], or to permit her to receive during her life or widowhood [the income], and from and after her decease or second marriage, whichever shall first happen, upon trust for [H]’. Although that looks like a duty to pay the income to the widow, a line of authority culminating in Doe d Leicester v Biggs162 held that in a devise in trust to pay to or permit X to receive the income of property, the word ‘permit’ prevailed over the words ‘pay to’ (because it was in a will, where later words trump earlier ones), and hence it was no duty at all. Accordingly, the Statute of Uses applied to vest a legal life estate in the income beneficiary. In Re Lashmar, the Court of Appeal was unhappy about this doctrine. Lindley LJ said:163 I do not think it is a sensible decision. I do not think that case could possibly be so decided now if the question arose for the first time; and I am not disposed to extend it. On the other hand, I do not wish to shake titles, and I shall do precisely what our predecessors have always done—leave the case where it is. It is a rock ahead that everybody knows.

Indeed, Lindley LJ went on to say:164 I am not prepared to extend that case, and, in that spirit, I am not at all prepared to say that these trustees did not take165 the legal estate during the life of the testator’s widow. I think they did,166 notwithstanding Doe v Biggs.

But, as the Lord Justice expressly said, this would only mean that the trustees (Moody) took a legal estate for the life of the widow, an estate pur auter vie. What about the legal estate in remainder? It seems that that would have vested immediately on B’s death (or at any rate when the executors concluded the administration of the estate) in H. So on the death of B’s widow in 1886, the trustees’ own legal estate would have expired, leaving them with nothing. Having done this exercise, the Court of Appeal then applied the position at law by analogy to the case before them, as one of a merely equitable estate. The judges considered that, whatever might have been the position if B’s widow had died after the last life tenant under A’s will, once she had 162

(1809) 2 Taunt 109, 127 ER 1016. [1891] 1 Ch 258, 267. 164 Ibid. 165 Strictly speaking, it should have been ‘would not have taken’, because the court was considering the case hypothetically, as if B had died owning the legal freehold estate, whereas in fact he died with only an equitable estate in remainder. But this was an ex tempore judgment, after all (see also the additional comment made by Lindley LJ at the end of the judgment of Fry LJ, to repair his omission to deal with Onslow v Wallis in his own judgment). 166 ‘Would have’, for the reasons given above. 163

152 Paul Matthews died and the last life tenant survived, the trustees of B’s will could have no further claim to obtain the outstanding legal estate from Penfold on the subsequent death of that last life tenant, which occurred in 1889. Fry LJ put it in this way:167 It appears to me that the construction of the will shewed that either the [equitable interest in real estate which was vested in B] passed immediately on his death to his widow and to his son in remainder, or that, in any event, it passed on the death of the widow when the remainder took effect in possession.

And again:168 I think, therefore, that no estate remained in the trustee. The whole equitable estate vested by force of this will in the testator’s son; and John Moody has no title to claim the conveyance from the trustee of Charles’s will.

If that is right, then H had the equitable interest in remainder at the time of his death, intestate and without heirs in 1880, which meant that no one could claim in his right, so as to make any claim on the conscience of the trustee. That left Penfold in the fortunate position of being trustee of a fee simple only for a series of life tenants, who would sooner or later die out. Lindley LJ summarised the position pithily:169 It appears to me that the true way to regard this will is to look through Moody as nobody. So it comes to this. The property is in Penfold on trust for nobody at all. Therefore, he keeps it; and accordingly the appeal must be allowed.

Unlike Lord Cottenham LC in Onslow v Wallis, the Court of Appeal in Re Lashmar stated that the question whether the trustee had duties (or active duties) to perform was crucial. Indeed it was the reason why the court did not follow Onslow v Wallis. Lindley LJ said170 that [in Onslow v Wallis] the trustee had duties to perform, and if this gentleman had any duties to perform our decision would have been the other way. It is because he has none that we decide as we have done.

But from our own modern perspective, we must also notice that the significance of the idea of duties to perform was simply that it prevented the Statute of Uses from executing the trust and passing the legal estate directly to the beneficiary. In Onslow v Wallis the Statute had no effect because the trustees had clear duties to perform. After 1925, of course, all this ancient learning is irrelevant (except for enabling us to understand cases such as Re Lashmar). Where a trustee without a beneficiary for whose benefit to hold claims is not in possession of the

167 168 169 170

[1891] 1 Ch 258, 269. Ibid. [1891] 1 Ch 258, 268. [1891] 1 Ch 258, 270.

Burgess v Wheate 153 trust property, and claims it from the person who is, the question after 1925 must be, not whether he has active duties to perform, but rather whether such a trustee has been given the right to obtain the outstanding legal estate which his (equitable) settlor or testator previously had.171

(2) Legislation In considering the subsequent development of the doctrine of Burgess v Wheate, we need also to take account of legislation. As already mentioned above, the actual result in Burgess v Wheate in relation to the Crown was reversed by the Intestate Estates Act 1884, s 4, which provided that where a person dies without an heir and intestate in respect of any real estate consisting of any estate or interest whether legal or equitable in any incorporeal hereditament, or of any equitable estate or interest in any corporeal hereditament, whether devised or not devised to trustees by the will of such person, the law of escheat shall apply in the same manner as if the estate or interest above mentioned were a legal estate in corporeal hereditaments.

This extended the law of escheat in two ways. First, it extended it to incorporeal hereditaments such as easements and profits, rentcharges, rights of common and so on, which had never been subject to escheat before, because they were not the subject of feudal grant. Previously escheat had been confined to corporeal hereditaments, ie land. Secondly, it extended it to equitable estates and interests in land.172 This is a typical example of how pragmatic common law thinking makes piecemeal amendment and adapts an old institution to a new purpose. In medieval times escheat was an incident of lordship of land in the feudal system, potentially working to the advantage of everyone in that system except the tenant in possession. It had no especial function for which it had been created: instead it was the inevitable consequence of the doctrines of tenure. But in nineteenth-century England, when tenure had in effect disappeared and virtually all land was held directly of the Crown, so that there were no intermediate lords, it became a means of sweeping up ownerless realty, legal or equitable, corporeal or incorporeal, and tipping it into the State’s coffers, like the ultimus haeres of the Roman law. It was easier to amend the old feudal rules in a way which their originators would never have understood than to scrap those rules entirely and start again. Indeed, this is exactly the technique which Lord Mansfield sought to use in Burgess v Wheate. Here as elsewhere he was simply ahead of his time. And in 1925 the legislators

171 In a different context, compare East Anglia Roman Catholic Trustee v Milthorn Engineering Ltd, 18 Trust Law International, 160 at 170. 172 See eg Re Wood [1896] 2 Ch 596.

154 Paul Matthews turned from the rules of real property succession to those of succession to personalty, and simply applied the rules of bona vacantia—another Crown prerogative—to solve the same problem. Although it has nothing to do with Burgess v Wheate, I cannot forebear to mention a recent example of this phenomenon. The Land Registration Act 2002 was passed in order, amongst other things, to extend the registration of land as far as possible in England and Wales. One important category of land that had remained unregistered under the 1925 and earlier legislation was that of demesne land of the Crown. This is land owned by the Crown since the Norman Conquest, and never granted away to any subject. Even today there is a lot of it. It could not be registered, because the old system of land registration could not register the ownership of land itself (and, of course, only the Crown actually owns land), only of estates in the land. But estates are a creature—indeed, you may say, a vestige—of the old feudal system. You might have thought that, with brand-new registration legislation, it was time for a rethink. Perhaps it would be going too far in such legislation to change tack and to get rid of estates in land altogether. But why not register the ownership of land in addition to the ownership of estates in the land? That would solve the problem of the demesne land. No, that was going too far as well. The Land Registry wanted to go on registering only estates in the land. How, then, to deal with demesne land? Perhaps the Crown could grant estates in the land, which could then be registered. Yes, but it would have to be to a Crown body, not to the private sector. So the Act could have created a statutory body, controlled by the Crown, to receive and hold fee simple estates in the demesne land. For some reason this also was considered too difficult. Instead the policy adopted was to have grants made by the Crown to itself, which could then be registered in the land register. But some clever lawyer must have pointed out that, under the feudal system, which despite all assurances to the contrary was alive and kicking in the twenty-first century, a lord (including the Crown) could not grant an estate to himself. It is a bilateral relationship. Put bluntly, it takes two to tango. But to solve such a footling problem is the work of a moment for a deft legislator. Never mind the fundamentally symbiotic nature of the feudal system, retained deliberately by successive governments rather than abolishing it. Let us just solve the immediate problem. So now we have s 79(1) of the 2002 Act: Her Majesty may grant an estate in fee simple absolute in possession out of demesne land to Herself.

And s 79(2) provides that such a grant can be made only if an application is made within two months thereafter to register the estate so granted. This presses all the buttons. It allows for estates to be granted and kept under the control of the Crown, but also requires them to be registered. That it also blows

Burgess v Wheate 155 wide apart the whole idea of the feudal relationship between lord and tenant is, frankly, unimportant. This is how law is made. Welcome to the real world. Coming back to Burgess v Wheate, there was also the problem of the maternal heir. The rule that you trace the heir from the last purchaser with seisin, and not the last owner, also did not survive. The need to show seisin was removed in 1833,173 and the possibility of an heir’s tracing descent from the last owner (even if not a ‘purchaser’) was introduced in 1859.174 So if the facts of Burgess v Wheate had reoccurred after 1884, in fact the Crown still would not have succeeded, despite the 1884 Act, because since 1859 the maternal heir would have been able to come in and take.

L. CONCLUSION

The decision in Burgess v Wheate is like a salutary shock to the system. We are brought up to think that the last thing a trustee can do is to keep the property for himself. What that case shows is that, indeed, as a last resort, and only when there is no one else to affect his conscience, it really is the last thing he can do. The trustee is a true owner, and has the owner’s rights, subject only to the effect on his conscience. If and when that effect runs out, he nevertheless remains the owner, untrammelled by any equity. Of course the law has moved on since Burgess v Wheate, and the range of persons who may affect the conscience of the trustee is—quite rightly—larger than it was then. So the chances of a trustee finding himself able lawfully to enjoy the property by virtue of the disappearance of all those who might affect his conscience are correspondingly smaller. But the true principle is there, and in analysing the nature of the trust, and in explaining it to those from outside the common law tradition, we ignore it at our peril.

173 174

Inheritance Act 1833 (3 & 4 Will IV, c 106). Law of Property Amendment Act 1859 (22 & 23 Vict c 35).

6 Morice v Bishop of Durham (1805) JOSHUA GETZLER

The Three Crosses, Rembrandt van Rijn, 1653*

* From the Cracherode collection, No AN83408, British Museum. The residue of the Cracherode estate was the subject of the litigation in Morice v Bishop of Durham. For help in preparing this chapter I thank Paul Brand, Emeric Monfront, Mike Macnair, Paul Mitchell, James Oldham, and the staff of the Georgetown Law Center Special Collections.

158 Joshua Getzler A. INTRODUCTION

M

ORICE V BISHOP of Durham1 stands for the principle that the objects of an express trust must be defined with some minimal certainty. The principle operates to determine the validity and operation of fixed express trusts, precatory trusts, charitable trusts, discretionary trusts and powers, private purpose trusts and trusts of imperfect obligation. It has a special role in crafting the duties and powers of administrators and executors. It forms an important strand in the complex of ideas that make up resulting trusts. It is worth understanding a little more about the circumstances that led to this seminal case, and the constellation of reasons that led Sir William Grant MR and Lord Eldon C to decide for Mr William Morice and his sister Mary against the Lord Bishop Shute Barrington. The holding of the case was that a ‘bequest in trust for such objects of benevolence and liberality as the trustee in his own discretion shall most approve’ was void for uncertainty.2 The bequest comprised the residual personal estate of a wealthy London spinster named Ann Cracherode, who had inherited a large estate in 1799 from her brother Clayton, a clergyman renowned as a collector of art and books. After inheriting from Clayton, Ann had arranged her own testamentary affairs on the advice of the Bishop of Durham, whom she appointed her sole executor prior to her death in 1802 at the ripe age of (probably) 84 years. The Court of Chancery decreed that the failure of Ann’s trust bequest meant that the residue should pass on a resulting trust to the next of kin, Ann’s cousins William and Mary Morice, who had brought the suit against the Bishop. Sir William Grant MR held that the bequest fell outside the class of valid charitable gifts; neither could the residue vest in the Bishop as an absolute ownership interest subject to precatory instructions to pursue beneficent purposes, for Ann had overtly used the mandatory language of trust in effecting the transfer to the executor, and moreover the Bishop had abjured any personal interest at all stages of the making of the will and the executorship that followed. Lord Eldon affirmed on appeal. The case crystallised two major points of law. First, every private (that is, non-charitable) express trust must have sufficiently ascertained beneficiaries so that a court of equity can decree performance in their favour. A trust constituted with indeterminate objects, yet with some guiding

1 Morice v Bishop of Durham (1804) 9 Ves Jun 399, 32 ER 65 (MR); (1805) 10 Ves Jun 522, 32 ER 947 (LC). 2 The Vesey reports of Morice are usefully expanded by the voluminous surviving pleadings in the National Archives, London, C 13/602/15—Bill in Chancery of William and Mary Morice; Answers of Shute Barrington, the Lord Bishop of Durham, the Reverend Richard Bullock, and four others.

Morice v Bishop of Durham 159 principles addressed to the trustee to guide the distribution, cannot be rescued by re-characterisation as a power granted to a trustee to select beneficiaries or to pursue purposes at large.3 A court would find it impossible to control such a trusteeship; and if the court withdrew and left all distribution to depend on precatory intentions then this would bestow a general power tantamount to ownership which would be inconsistent with the language of entrustment. Later cases in the sphere of testamentary trusts reinterpreted this ruling as going against an uncontrollable delegation of will-making power.4 The second limb of the decision in Morice is equally important, and was probably the dominant issue in the minds of the lawyers who argued and decided the case. This was the holding that a purported public trust that gives the trustee the widest discretionary power to choose persons and purposes to benefit, and therefore exceeds the recognised heads of charity, cannot be reformed by the court to fall within the confines of charity, is not divisible into good and bad parts, and must be void. Both the first and second limbs of the case unite around the idea that the court must be able to enforce the trust, and therefore must be able to test whether a trustee has properly executed the trust in favour of its objects. Morice now appears as a key source of the modern ‘beneficiary principle’,5 the twin rule6 that every valid non-charitable trust must have identifiable beneficiaries being legal (generally human) persons with an interest in the trust assets, and that only such beneficiaries have standing to sue. Lord Eldon’s judgment also sets out an early, if cryptic, statement of the ‘three certainties’, of dispositive trust intention, object and subject, necessary for the creation of an express trust: ‘[T]he question was, whether precatory, not mandatory, words imposed a trust upon that person; and the Court has said, before those words of request or accommodation create a trust, it must be shewn, that the object and the subject are certain …’7 But the decision is equally significant for its stipulation of the validity conditions of charitable trusts, or public purpose trusts enforceable by the Court of Chancery or by the Crown via the Attorney-General or the Charity Commissioners. Morice states that charity is an inherently legal category, the boundaries of which

3 It is an interesting lacuna in the case that powers of appointment were never really argued. 4 The past operation of this rule and its modern dissolution are discussed in CD Baker, ‘Delegation of Testamentary Power after McPhail v Doulton’ (1975) 5 Adelaide Law Review 103; JD Heydon, ‘Does Statutory Reform Stultify Trusts Law Analysis?’ (2008) 6(3) Trusts Quarterly Review §2. 5 Perhaps most clearly enunciated by Roxburgh J in Re Astor’s Settlement Trusts [1952] Ch 534. 6 P Matthews, ‘From Obligation to Property, and Back Again? The Future of the NonCharitable Purpose Trusts’ in DJ Hayton (ed), Extending the Boundaries of Trusts and Similar Ring Fenced Funds (The Hague, London, Kluwer, 2002) 203. 7 (1805) 10 Ves Jun 522, 536; 32 ER 947, 952. Cf Knight v Knight (1840) 3 Beav 148, 160; 49 ER 58, 63.

160 Joshua Getzler are tested by the court through analogy from past cases and the preamble to the 1601 Charitable Uses Act, commonly referred to as ‘the Statute of Elizabeth’. Charitable purposes cannot be defined by abstract criteria such as ‘public benefit’ or ‘benevolence’ because, in Lord Eldon’s phrase, ‘there is no magic in words’,8 only the artificial reason of the law building on its own past materials. The Attorney-General had intervened in the case of Morice to argue that the Cracherode trust of residue should be perfected into a general charitable disposition under the supervision of Court or Crown, applying either the rules of cy-près or the old privilege allowing completion of an imperfect charitable disposition; but these arguments were expressly rejected. By fastening on the preamble to the 1601 Statute as a boundary to the heads of charity, Lord Eldon and Sir William Grant acted to curb charitable dispositions, and by so imposing a numerus clausus on the types of charitable giving they restrained the fancies of testators in order to keep inheritances within normal family descents. Legal restrictions on charitable giving before 1805 had focused largely (not entirely) on the manner of giving, with mortmain and deathbed constraints being imposed by legislation and extended by the interpretatio of the courts. After Morice, legal debate over the permissible extent of charitable giving focused increasingly on the content of the charitable purpose. Morice thus started a debate over proper charitable objects that continues to the present day.9 By encompassing so many bedrock principles and touching on so many practical aspects of trusts, Morice certainly appears at two centuries’ distance as a landmark case in equity; but this was not the way that contemporaries viewed it. Morice was not cited as authority for any ‘beneficiary principle’ or ‘certainty of objects’ rule until well toward the middle of the nineteenth century. Its real celebrity as a leading decision dates to the early and mid-twentieth century, as lawyers grappled with the challenge of amorphous beneficial objects in the new environments of family and corporate tax planning, corporate finance, pensions and offshore jurisdictions. The urgent problems facing lawyers at the time of Morice were rather different, and harked back to two linked issues that had troubled the legal system since before the Reformation—controlling the deathbed disherison of heirs, and restraining the putting of testamentary property into mortmain, that is 8 (1805) 10 Ves Jun 522, 542; 32 ER 947, 955; cf Rex v Inhabitants of North Nibley (1792) 5 Term Reports 21, 24; 101 ER 12, 14, per Lord Kenyon CJ. 9 The recent expansion of the classes of charity by the Charities Act 2006, ss 1–3 may have lessened the legal definitional debate but has not dispelled it. However, the debate will likely not be now conducted primarily in the courts. The Charity Commission, using its power of policy implementation under s 4 of the Act, has interpreted the public benefit requirement of s 3 to mean that proof of actual ‘public benefit’ is an added test that should be superimposed on charities clearly pursuing obviously educational, religious or other prima facie charitable purposes. To paraphrase Jeffrey Hackney’s quip (‘The Politics of the Chancery’ [1981] Current Legal Problems 113, 119), the charitable trust has become a public law wolf in public law sheep’s clothing.

Morice v Bishop of Durham 161 perpetual or ‘deadhand’ control of property by ecclesiastical bodies or other corporations. This explains why Morice was early picked up by cases and texts on mortmain and charitable uses, but remained rather invisible in the key literatures on trusts.10 The beneficiary principle had to become controversial before it could be noticed properly as a foundational doctrine. Lord Eldon avowed that the issues raised in Morice were novel.11 This claim may be glossed: the case really raised some very old problems regarding clerical execution and control of testamentary powers and charitable donation, but gave those problems a new answer. The decision awarding the residue of Ann’s estate to Morice rather than the Bishop of Durham may be seen as a curb on the ancient role of the Church in administering charitable uses and forming social and political projects alongside and in tension with secular society. It is a very late case on mortmain, as well as an early case on certainty of intention in the constitution of trusts. To understand the full significance of the case, we need to uncover the past role of the Church as a charitable and welfare organisation, then examine Anglican political philanthropy at the time of the Napoleonic wars, and finally unpick the tangled relationships of the protagonists as revealed in the litigation of 1804–05. With this historical knowledge in place, the famous judgments of Grant and Eldon take on a new hue. We shall conclude with a brief look at how Morice became a leading case, and whether its logic is still compelling in the modern law of trusts.

B. THE PAST OF CHARITABLE BEQUESTS

The practice of charity and its legal definitions have constantly mutated across English history.12 Charitable giving was long tied to testamentary 10 Morice is glancingly noted in A Highmore, A Succinct View of the History of Mortmain: and the statutes relative to Charitable Uses, 2nd edn (London, Butterworth, 1809) 132, 282; in T Lewin, A Practical Treatise on the Law of Trusts and Trustees, 1st edn (London, Maxwell, 1837) 79, 175; and in G Spence, The Equitable Jurisdiction of the Court of Chancery, 1st edn (London, Stevens and Norton, 1846–49) I, 591; II, 65, 72, 81, 223. There is nothing direct in J Fonblanque, A Treatise of Equity, 5th edn (London, Clarke, 1820), neither does it appear in EB Sugden, A Practical Treatise of Powers, 2nd edn (London, Reed and Hunter, 1815). It does not rate a mention in FT White and OD Tudor, Leading Cases in Equity, 1st edn (London, Maxwell, 1849–50), though it makes a brief appearance in later editions in the commentary on Harding v Glyn (1739) 1 Atk 469, 26 ER 299. Likewise Morice does not appear in American texts until the 1850s; tellingly, it is not cited in J Story, Commentaries on Equity Jurisprudence, 1st edn (Boston, Hilliard, Gray 1836). 11 Lord Eldon’s judgment commences with the statement: ‘This, with the single exception of Brown v Yeall (7 Ves 50, ii) is a new case’: 10 Ves Jun 535, 32 ER 952. 12 M Rubin, Charity and Community in Medieval Cambridge (Cambridge, CUP, 1987); WK Jordan, Philanthropy in England, 1480–1660 (London, Allen & Unwin, 1959); WK Jordan, The Charities of London (London, Allen & Unwin, 1960); WK Jordan, The Charities of Rural England (London, Allen & Unwin, 1961); G Jones, History of the Law of Charity 1532–1827 (Cambridge, CUP, 1969); D Owen, English Philanthropy 1660–1960

162 Joshua Getzler causes as administered by the Church. The medieval concept of charity was bound up with good works—piae causae, pious causes—that would promote redemption of the soul. To make a will invoking the assistance of the Church in making charitable donations became a normal part of a meritorious religious life. Sometimes the testator would elaborately spell out the bequests and legacies to be made, whether to benefit the local community or to contribute to wider causes including the Church itself. One common form of charitable giving was more orientated to the self of the giver than the welfare of the community: in pre-Reformation England the endowment of chantries to say masses for the departed, and so speed the progress of the soul to redemption, was a widespread and popular practice.13 Often the bequest of personalty to charitable causes would simply involve a general gift into the Church for the clergy to decide how best to apply; the Church was thus simultaneously itself an object of charity and a pathway for the execution of charitable giving to wider objects. It was also possible to justify general Church control over probate by classifying the orderly distribution of a congregant’s personal wealth at death to identified kin and friends—that is, to non-charitable objects—as itself a pious act. The regular control of probate by the Church was in England a key part of the ‘ordinary’ powers of the diocesan bishop in enforcing the law of the Church. Richard Helmholz has studied the English ecclesiastical jurisdiction over testamentary causes and probate, and he concludes that the wide extent of the Church monopoly here was anomalous. The European ius commune traced general testamentary law back to secular Roman roots, and outside charitable bequests the ecclesiastical power over testation on the Continent was marginal.14 Over time the range of piae causae or charitable purposes that were administered by the Church was expanded into new areas of social entrepreneurship. We find early fifteenth-century examples of the Church regulating bequests for the repair of roads and other such infrastructural investments, justified as pious contributions to the public weal. This public dimension of charity law thus pre-dates the 1601 Charitable Uses Act, the ‘Statute of (Cambridge, Mass, Harvard University Press, 1965); M Daunton (ed), Charity, Self-Interest and Welfare in the English Past (London, UCL Press, 1996); M Chesterman, Charities, Trusts and Social Welfare (London, Weidenfeld & Nicholson, 1979) 1–191; M Chesterman, ‘Foundations of Charity Law in the New Welfare State’ (1999) 62 MLR 333; C Mitchell and SR Moody (eds), Foundations of Charity (Oxford, Hart Publishing, 2000); G Moffat, Trusts Law, 5th edn (Cambridge, CUP, 2009) 913–1080. 13 MGA Vale, Piety, Charity and Literacy among the Yorkshire Gentry, 1370–1480 (York, St Antony’s Press, 1976); J Kreider, English Chantries: Road to Dissolution (Cambridge, Mass, Harvard University Press 1979); JH Baker, The Oxford History of the Laws of England, Volume VI, 1483–1558 (Oxford, OUP, 2003) 715–17. 14 RH Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, Volume I of The Oxford History of the Laws of England (Oxford, OUP, 2004) 387–432 (‘Testamentary Law and Probate Jurisdiction’).

Morice v Bishop of Durham 163 Elizabeth’, by some two centuries. A key element of the ecclesiastical law of charity, which was engrafted into England from general canon law, was the idea that a charitable gift administered by the Church would not fail for want of certainty. Once the quality of charity attached to a bequest, the Church had powers to apply the gift to piae causae as was expedient. This rule allowing latitude to Church executors in selection of objects was later to enter the secular jurisdiction of the Court of Chancery as the doctrine of cy-près; the Court (or the Crown) could take over a charitable but vague bequest and allocate the gift to more definite charitable objects. Lord Eldon came to review this doctrine in the 1802 case of Moggridge v Thackwell,15 decided just two years before the case of Morice: In what the doctrine originated, whether, as supposed by Lord Thurlow in White v White, in the principles of the Civil Law, as applied to charities, or in the religious notions entertained formerly in this country, I know not: but we all know, there was a period, when in this country a portion of the residue of every man’s estate was applied to charity; and the Ordinary thought himself obliged so to apply it; upon the ground, that there was a general principle of piety in the testator. … [I]f the testator has manifested a general intention to give to charity, the failure of the particular mode, in which the charity is to be effectuated, shall not destroy the charity: but, if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, though the formal intention as for the mode cannot be accomplished.

However so broad the Church’s powers over charitable and general bequests might be, there was one structural limit. The Church was not supposed to interfere with the descent of land titles, which always lay outside the probate jurisdiction and was a supposed monopoly of the common law courts. One could not give land by legal will prior to the Statute of Wills of 1540. Moreover, mortmain statutes early were instituted to restrain the devise of lands into the Church as a perpetual corporation outside the feudal hierarchy of estates.16 The Church did stray into the estates system through its involvement with the enforcement of early uses. These devices, by subjecting feoffees to informal obligations of conscience, could create powers of testation over land as well as personalty, and the use as a duty of conscience could attract Church jurisdiction. Such uses were a constant source of friction with the secular authorities and provoked legislative attack.17 The Reformation brought a more fundamental assault on Church power, with the repression of the monasteries and convents reversing centuries of mortmain accumulation by vesting Church lands in secular hands. The new landowners who were enriched by Henry VIII’s confiscations soon discovered 15

Moggridge v Thackwell (1802) 7 Ves Jun 36, 68–69; 32 ER 15, 26. Porter’s Case (1592) 1 Co Rep 22b, 76 ER 50. 17 RH Helmholz, ‘The Early Enforcement of Uses’ (1979) 79 Columbia Law Review 1503. 16

164 Joshua Getzler that the Crown’s practice of handing out the land under chivalrous tenures put a fresh noose around their necks, in the form of steeply-increased feudal dues exacted by the Crown against all their estates. Perhaps the most significant Reformation reforms redefining charity and testamentary causes were the Chantries Acts of Henry VIII (1545) and Edward VI (1547). The 1547 statute dissolved the religious houses dedicated to the saying of masses for the dead as ‘superstitious uses’, for if the doctrine of purgatory was false and inimical to true religion then it was unacceptable for the law to allow testators to tie up their property in the Church in order to help their souls through the stages of a mythical redemption. The 1547 statute required that the wealth of the chantries be reallocated after confiscation by the Crown to ‘charitable’ purposes and ‘the public good’, and some of it was indeed used to found the royally-constituted grammar schools, though the bulk of the wealth was moved into Crown or private control. It is perhaps the 1547 reform with its overt condemnation of ‘superstitious’ Catholic religious practice that welds into English trust law an hostility to non-Protestant forms of worship.18 The weakening of Church powers over charities and testamentary causes continued with a shift of jurisdiction to the Court of Chancery on the one hand and the Crown on the other.19 Chancery increasingly supervised executorships and probate to the exclusion of the Church courts, especially where trusts for payment of debt were concerned, and Chancery also increasingly claimed a power to regulate charitable trustees. Alongside this the Crown built up the power of the Elizabethan charity commissioners as an executive control mechanism.20 Tudor legislation also instituted the system of poor relief as a secular reformation of parish welfare; the Poor Laws were the coeval twin of the new secularised charity regulation.21 The start of the eighteenth century brought further innovations to the charity world. Charitable funds on a large scale might be constructed as pools of capital allowing extensions of ‘micro-credit’ to help targeted groups overcome shortfalls; they performed smoothing functions alongside the unfunded welfare transfers of the Poor Law system. An important example was the Queen Anne’s Bounty founded in 1704, which channelled wealth from Crown estates and raised bequests and legacies in order to

18

Cf P Ridge, ‘The Legal Regulation of Religious Giving’ (2006) 157 Law and Justice 17. On Chancery wresting of jurisdiction over testamentary legacies and debts from the church courts, see Jones (n 12) passim; SJ Whittaker, ‘An Historical Perspective to the “Special Equitable Action” in Re Diplock’ (1983) 4 Journal of Legal History 3; RH Helmholz, ‘Debt Claims and Probate Jurisdiction in Historical Perspective’ (1979) 23 American Journal of Legal History 68; A Hofri-Winogradow, ‘Protection of Family Property from Creditors in the Enlightenment-Era Court of Chancery’ (2008) Hebrew University Research Paper, , accessed 8 September 2011. 20 Jones (n 12) 22–56. 21 P Slack, Poverty and Policy in Tudor and Stuart England (London, Longman, 1988). 19

Morice v Bishop of Durham 165 augment the income of the poorer clergy and so strengthen the established Church. The Bounty was immediately controversial as a Crown encouragement of mortmain accumulations at the expense of the landed families, traders and manufacturers of the realm. Another important charity of that time was ‘The Charitable Corporation for Relief of the Industrious Poor, by Assisting them with Small Sums upon Pledges at Legal Interest’, chartered by the Crown in 1707. Its capital was massively enlarged to reach £600,000 by 1730, derived in effect from public revenues. The Charitable Corporation lost a vast amount of capital through defalcations, in the form of fraudulently written loans by a circle of crooked corporate servants who were not in any way monitored by the larger court of directors. It may be seen as an analogue of the South Sea Bubble that burst with such disastrous effect in 1720. Lord Hardwicke in 1742 declared the directors of the Charitable Corporation to be personally accountable for the losses, and his judgment is a foundation of the modern law of directors’ duties, and also a distant source of judicial control of executive powers in public law.22 These large charities of the earlier eighteenth century were in effect pursuing functions of welfare, industrial policy and social investment outside the remit of the parish-based relief system, in an era before centralised State bureaucracies had been invented. They were a development of the earlier Tudor models, involving Crown targeting of certain social needs. It has been argued that the unpopularity of these charities, and their tendency to funnel wealth away from family inheritances, led Parliament to respond with the 1736 Charitable Uses Act.23 This prevented any land or income immediately derived from realty being granted by will to any charity, including the Church or any religious house, but excepting certain favoured corporations, namely the colleges at Oxford, Cambridge, Eton, Winchester and Westminster. Donors could make charitable gifts of realty only if they sealed a deed of transfer before two witnesses at least 12 months before death and registered the deed at least six months prior to death. Bequests of personalty used to buy land for charity were subject to a limit of six months before death. The policy of the statute was to restrict profligate charitable giving by requiring donors to sacrifice their living wealth and do so publicly. This would restrain the subtraction of land from the estates of their heirs and prevent too much wealth going into mortmain. The 1736 statute caused continuing controversy and was subject to amendment (and countless parliamentary debates) all the way down to the Mortmain and Charitable Uses Act 1891, a sweeping reform that narrowed the statutory prohibitions to vanishing point. An early amendment to the initial Act 22

Charitable Corporation v Sutton (1742) 2 Atk 400, 26 ER 642; 9 Mod 349, 88 ER

500. 23 Jones (n 12) 105–33; C Stebbings, ‘Charity Land: A Mortmain Confusion’ (1991) 12 Journal of Legal History 7.

166 Joshua Getzler importantly relaxed the prohibition to allow testators to give or help the purchase of land for direct Church usage, for example to provide a field for a church building to be built upon; the main prohibition left in place was to stop land going to charity as capital for income. The courts took a lot of business interpreting the 1736 statute, and tended to be hawkish in its enforcement. This created a conundrum—in order to prevent land being devised to a charity, the courts strained to define charitable giving very broadly as any gift tending to public benefit. But this meant that on the personalty side, the slightest indication of a public benefit to a gift would involve the courts clamping a testamentary trust on the gift and ensuring it was taken out of the family inheritance and devoted to charitable causes, by operation of cy-près if necessary. So the 1736 Act perversely operated to keep land out of and sweep personalty into charitable uses. For donors who wished to leave their real property by will to charity, and who therefore needed to evade the 1736 Act, one solution was to leave a bequest absolutely to favoured clerics as individuals, subject to precations that they should apply the wealth to vaguely good objects, such as ‘liberal’ or ‘benevolent’ purposes. By giving the wealth to the churchman and not the Church, and by substituting broad precatory language rather than the mandatory language of trust, a gift of realty or personalty ad piam causam could be effected in evasion of the statute. The evasion tactic in effect revived testamentary practices of the pre-Reformation medieval Church. We can see the bequest in issue in Morice as just such a tactic gone askew, with the old evasion device of a precatory bequest to an individual being misapplied to personalty, and then mixed up with trust instructions that wrecked all chance of an absolute interest taking effect outside charitable regulation. Such legal tangles in recording charitable intentions were very common as the legal controls of charitable wealth were so complex. By the early nineteenth century the social charities had mutated yet again; they were more decentralised, launched by private rather than Crown initiative, and often with strong Church participation adding a more religious tinge. The Church charities, now driven by evangelical fervour, might promote individual and communal self-reliance and moral improvement rather than seeking directly to alleviate distress or maintain incomes. Richard Tawney described the new mood as follows: that the greatest of evils is idleness, that the poor are the victims not of circumstances but of their own ‘idle, irregular and wicked courses’, that the truest charity is not to enervate them by relief, but so to reform their character that relief may be unnecessary.24

24

RH Tawney, Religion and the Rise of Capitalism (London, Murray, 1926) 238.

Morice v Bishop of Durham 167 We shall next see how the evolution of charitable law and practice, and the new evangelical forms of disciplinary and redemptive charity, impacted on the litigation in Morice v Bishop of Durham.

C. DECIDING MORICE IN THE MIDST OF CRISIS: WAR, DISTRESS AND THE ABOLITION DEBATE

The decade up to 1804–05 was a time of insecurity in Britain. The population had grown by 50 per cent in the preceding half-century, wages had declined by 15 per cent and urbanisation of the population had doubled to 25 per cent in that same period, and there was great privation and unrest.25 War with France which had started in 1793 flared again, and the threat of invasion was only finally dispelled with Nelson’s naval victory at Trafalgar in October 1805; meanwhile, in that year Napoleon’s land armies soundly defeated Britain’s Continental allies. Increasingly embittered and partisan politics at home engrossed the ruling classes, including Lord Eldon, an unusually powerful and active Lord Chancellor who took the side of reaction against growing radical demands for democratisation and reform. William Pitt the Younger had to battle to keep his government alive in the teeth of corruption scandals and messy coalition plots, all the while preoccupied by stark military and diplomatic responsibilities. On top of this, the campaign for the abolition of the transatlantic slave trade was reaching its apogee, with William Wilberforce cajoling his friend Pitt to lead Parliament forward in this great moral cause, but with little success. Wilberforce’s amiable personality and charisma was an important factor in the long political campaign for abolition. His gift for friendship embraced Sir John Scott, then Solicitor-General and later Lord Eldon, who out of loyalty to Wilberforce uncharacteristically supported his move to set up an inquiry into the slave trade in May 1789.26 Wilberforce was also close to Shute Barrington, the foremost Anglican cleric of that time, a man of noble birth with extensive connections and influence.27 In 1791 Barrington was translated to the see of Durham, and hence sat as Prince Bishop of the County Palatine, the semi-independent dual diocese and lordship of the North that had once rivalled the Crown in wealth and power. Barrington together with Wilberforce founded and ran many charities

25 RC Allen, ‘Progress and Poverty in Early Modern Europe’ (2004) 56 Economic History Review 403. The population of the United Kingdom in 1750 stood at approximately 10 million; by 1800 it was 15–16 million; there was a population peak in 1841 of some 27 million prior to the period of famine and emigration that followed. 26 RA Melikan, John Scott, Lord Eldon 1751–1838: The Duty of Loyalty (Cambridge, CUP, 1999) 61. 27 EA Varley, ‘Shute Barrington (1734–1826)’, Oxford Dictionary of National Biography (Oxford, OUP, 2004) online edn accessed 12 July 2010.

168 Joshua Getzler across the land.28 By widespread acts of charity Barrington believed that the Anglican Church could embrace and capture the moral fervour of the evangelical movement, and help create a national consensus around Church, Crown and Parliament. He deemed it necessary for the Church to offer social improvement and political leadership in order to counter Jacobin republicanism and political Catholicism, both of which he vehemently opposed, and sometimes mixed up as a conjoined enemy, claiming that the excesses of the old clerisy had provoked atheistic rebellion in France. A characteristic mixture of evangelical and political purpose was revealed in the activities of the chief charity created by Barrington and Wilberforce together with Thomas Bernard in 1798, which was known as the ‘Society for Bettering the Condition of the Poor’. Its major goal was to boost the selfrespect and independence of the poor so they could look after themselves, through spiritual education and the encouragement of decent family households embedded in God-fearing communities. Bernard made quite clear that he opposed any distribution of money to the indigent, as provided by the unreformed Poor Laws of the time which provided family maintenance payments. These payments, he held, would undermine incentives and moral fibre, and in an open letter published in 1802 and addressed to the Bishop of Durham as the Society’s President, Bernard made his views clear:29 The Poor Laws of England have held out a false and deceitful encouragement to the population. They promise that unqualified support, that unrestricted maintenance, to the cottager’s family, which it is not possible for them to supply; thereby inducing the young labourer to marry, before he has made any provision for the married state; and, in consequence, extinguishing all prospective prudence, and all consideration for the future … Whatever encourages and promotes habits of INDUSTRY, PRUDENCE, FORESIGHT, VIRTUE, and CLEANLINESS among the poor, is beneficial to them, and to the country; whatever removes, or diminishes, the incitement to any of these qualities, is detrimental to the STATE, and pernicious to the INDIVIDUAL. This is the POLAR STAR of our benevolent affections; directing them to their true end.

The Bishop’s charitable endeavours conformed to this ideal of encouraging self-help. In a characteristic move, he once had his second wife, Jane, distribute beehives to every household in a Durham village so that the yeomen could cultivate their own honey, even as he racked their rents. Indeed it was in these years that a new consensus grew between the Evangelicals of the Church and the evangelicals of political economy that the out-door relief or income support provided by the old parish Poor Law system was no charity but a harm to the populace, leading eventually to the disciplinary 28 B Hilton, The Age of Atonement: The Influence of Evangelicalism on Social and Economic Thought 1785–1865 (Oxford, OUP, 1986) 98 ff. 29 T Bernard, Introductory Letter to the Reports of the SBCP, vol 3 (1802) at 10–11, 20–21, quoted in Hilton (n 28) 99.

Morice v Bishop of Durham 169 New Poor Law of 1834.30 It is interesting that William Wilberforce thought differently, supporting in Parliament Samuel Whitbread’s radical 1807 proposals for increased financial support to needy families. The Commons roundly rejected such a character-destroying measure.31 Wilberforce also supported Whitbread’s proposal of free and compulsory education for a two-year minimum between the ages of 7 and 14; surprisingly this measure passed the Commons, only to face defeat in the Lords, yet it is counted the legislative harbinger of the modern State educational system that emerged in 1870.32 So Wilberforce may well have taken a more radical view than Barrington and his other charitable colleagues on the proper role of charitable and State welfare provision in the conditions of his time. Whatever their respective social and theological views, Barrington and Wilberforce were certainly united in their commitment to the great cause of abolition of the slave trade. Barrington collected vast sums for charities that he controlled, exploiting his position as a fashionable cleric to launch charity events that attracted the prominent and wealthy to his table and their subscriptions to his causes; and it is likely that some of these means were spent to promote Wilberforce’s abolitionist campaign. What united these men was an evangelical belief that charitable and moral activism was essential to bind society together and bring redemption to all stations of society. Abolitionism entirely fitted into both men’s vision. The Chancery case of Morice v Bishop of Durham took place during the slave trade abolition controversy then being battled out in Parliament. It may be that partisan motives entered into the case, reflecting the political turmoil of that year. Sir William Grant MR decided Morice on 26 March 1804, a few weeks before a major show-down in the Commons over a Wilberforce abolition bill in May and June.33 Lord Eldon gave his judgment on the Morice appeal almost exactly one year later on 20 March 1805, just as the Government was tottering following revelations of corruption by Lord Melville, the First Lord of the Admiralty. The appeal case also followed on a division in the House of Commons three weeks earlier

30 Debate over the nature and impact of the reformed Poor Laws has continued against a backdrop of political conflict over the modern Welfare State, as shown by M Blaug, ‘The Myth of the Old Poor Law and the Making of the New’ (1963) 23 Journal of Economic History 151. Important recent contributions include: LH Lees, The Solidarities of Strangers: The English Poor Laws and the People, 1770–1948 (Cambridge, CUP, 1998); J Innes, ‘The Distinctiveness of the English Poor Laws, 1750–1850’ and J Harris, ‘From poor law to welfare state? A European perspective’, both in D Winch and PK O’Brien (eds), The Political Economy of British Historical Experience, 1688–1914 (Oxford, OUP, 2002); L Charlesworth, Welfare’s Forgotten Past: A Socio-Legal History of the Poor Law (London, Routledge, 2009). 31 W Hague, William Wilberforce: The Life of the Great Anti-Slave Trade Campaigner (London, Harper, 2007) 360. 32 R Fulford, Samuel Whitbread, 1764–1815: A Study in Opposition (London, Macmillan, 1967) 176–80. 33 Hague (n 31) 315–26.

170 Joshua Getzler on 28 February 1805, when another Wilberforce bill for the abolition of the slave trade was lost, followed by a further defeat on 3 March when the reintroduced bill was lost by only seven votes, reversals that demoralised Wilberforce and nearly derailed his campaign.34 Hostilities over the abolition of slavery may have played some part in the atmosphere of the case, for the Bishop of Durham, who had supported abolition with the other Bishops in the Lords, found his liberal stance brought him opposition from many parts of the Tory interest, which most definitely included John Scott, Lord Eldon. Indeed Eldon himself gave speeches from 1804 through to 1807 as Lord Chancellor from the floor of the House of Lords urging against rapid abolition.35 On 3 July 1804, on the second reading of a slave trade abolition bill in the Lords, Eldon’s biographer Twiss reports that [t]he Lord Chancellor said he did not recollect to have ever given a vote on this subject. But he thought it fair to those whose property would be ruinously affected by the Bill, to take time for deliberation, and asked of their Lordships to exercise their humanity and justice, not on partial, but upon comprehensive principles.

In those debates of 1804 Eldon insisted ‘[t]here was no man more inclined to the abolition of the slave trade than himself’, but he also held it would be a dangerous act of moral self-indulgence and injustice to force the present generation of slave-owners and traders to pay with their fortunes for this moral cause.36 Slave trading and slave holding were therefore to be tolerated and continued on the impartial principle of protecting vested rights. This was not the first time that judges reached for formal justice principles to preserve the rights of slave-owners to enjoy their human property, neither would it be the last.37 We can only speculate what might have happened had the case of Morice been decided the other way and the money gone to Wilberforce’s friend Bishop Barrington to spend as he ‘in his own discretion shall most approve of’, in the midst of that most crucial debate over the legality of slave trading. In the event, the abolition of the slave trade passed with sizeable majorities two years later, on 16 May 1807, though the transatlantic institutions of slavery took much longer to die. In the light of this controversy that so absorbed the elites in 1804–05, the repression of public charities for objects of ‘benevolence and liberality’ in the case of Morice takes on new possible meanings. The medieval bishops 34

HC Deb 28 February 1805, vol 3, cols 641–47; Hague (n 31) 293–356. H Twiss, The Public and Private Life of Chancellor Eldon (London, Murray, 1844) I, 459; II, 21–23; see also W Hazlitt, ‘Lord Eldon and Mr Wilberforce’ in The Spirit of the Age (London, Colburn, 1825) Essay 15, II, 313. 36 Melikan (n 26) 254. 37 See, eg, the discussions of The Zong, Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, in (2007) 27 Journal of Legal History 285 ff; C Mitchell and L Turano, ‘Buron v Denman (1848)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Oxford, Hart Publishing, 2010) 33–68. 35

Morice v Bishop of Durham 171 had commonly taken control of personal estates of the deceased and administered them for pious causes; Cracherode’s bequest to Barrington could be fitted into that ancient pattern. The decision in Morice headed off the direction of a sizeable bequest into the hands of a high official of the Church by a testatrix happy to see that cleric had the widest latitude in the spending of such wealth on good causes, including political causes that clearly fell outside conventional charity. Not only a desire to clarify the nature and enforceability of a private trust, not only mortmain concerns, but also a desire to reduce the clout of the Church in its control of testamentary and charitable wealth may have been engaged in this episode. A closer examination of the facts of the case shows that the court was indeed addressing issues of the role of clerics in administering succession, and attendant problems of undue influence and the fiduciary status of executors. To the facts of the case we now turn.

D. THE CRACHERODE WILLS AND THE BISHOP OF DURHAM

Ann Cracherode’s philanthropic impulses were made possible by two accidents of family: that she never married, and that her childless brother, Clayton Mordaunt Cracherode, himself a wealthy landowner and philanthropist, had failed to exhaust his estate with charitable bequests and legacies, thus leaving Ann a sizeable remnant of the Cracherode family estate.38 That Clayton Cracherode did not manage to spend his entire fortune was not through want of trying. He came from old gentry stock but took no interest in harbouring the family estate or continuing the family line, spending his entire life as a sheltered Oxford don and London cleric and cognoscente. Such were the habits of his introverted private life that he never once visited his lands at Great Wymondley in Hertfordshire, being content to draw the income as a very absent landlord. Clayton was born in 1730, the son of a British army general, who sent him to be educated at Westminster School. He went up to Christ Church, Oxford, to read classics and divinity, going on to take a Masters of Arts degree and a studentship (that is, fellowship) of the College. His duties in the College seem to have been undemanding, and he maintained his position there until his death. He also entered the Anglican priesthood and took a small living at Binsey, an ancient church on the edge of Port Meadow in Oxford. He never married,

38 Unsigned obituary, (1799) 69 Gentleman’s Magazine I, 354–56; GH Martin, ‘Cracherode, Clayton Mordaunt (1730–1799)’, Oxford Dictionary of National Biography (Oxford, OUP, 2004), online edn accessed 4 August 2010; A Griffiths, ‘The Reverend Clayton Mordaunt Cracherode (1730–99)’ in A Griffiths (ed), Landmarks in Print Collecting: Connoisseurs and Donors at the British Museum since 1753 (London, British Museum Press, 1996) 43.

172 Joshua Getzler and it was said that his whole life he never travelled except to oscillate by coach between his homes in Westminster and Oxford, being too timid to ride a horse. In 1773, at age 43, he inherited a considerable fortune, and over the next quarter of a century he spent much of his wealth on rare books, prints, coins and gems, as well as on a marvellous collection of prints by old masters. By all accounts he was learned and discriminating in his book-buying, and had refined taste and considerable enterprise as an art collector. He died in 1799, and in his will he gave almost the entire collection to the British Museum, of which he was a trustee. As a great public benefactor, he was buried in Westminster Abbey. He was said to be second only to Sir Hans Sloane in building the Museum’s collections, bringing to it some 529 works of Rembrandt and 73 of Dürer amongst the drawings and prints, and some 4,500 volumes including the first illustrated edition of Dante’s Divine Comedy (printed in 1481) and many other ancient tomes, of value near £25,000 in total. Particularly beautiful and renowned was the 1653 etching of The Three Crosses by Rembrandt. Today the British Museum lists some 4,930 items from the Cracherode bequest. Aside from the Museum bequest, Clayton’s elaborate home-made will directed some lesser bequests and legacies, made a trust to pay debts, and left the residue of his estate, realty and personalty, to his sister Ann, who was 12 years his senior, being born in 1718. Clayton died on 5 April 1799 and Ann proved the will on 17 April. So she found herself in her early eighties a woman with no immediate family and sitting on considerable wealth. It is a truth universally acknowledged, that a single elderly woman in possession of a good fortune must be in want of a charming priest. Ann was indeed to make friends with a priest very shortly, and a lofty one at that, in an episode that could almost have come from the pages of Jane Austen. It so happened that brother Clayton was also a close friend of Shute Barrington. The men had broadly similar backgrounds. Barrington had been schooled at Eton not Westminster, and was four years junior to Clayton, being born in 1734. Like Clayton, Shute’s was a story of a scion of the minor gentry moving up the social scale through Oxford and the Church. Shute was the fifth son of an Irish landowner who had been made viscount. He made his way as a scholar and after a distinguished student career at Oxford was rewarded on graduation with fellowships at Merton and Christ Church, and in due course took a Doctorate of Civil Laws. At Christ Church, where he held a canonry on top of his studentship, he would have been in close contact with Clayton Cracherode. At 35 years of age he was made Bishop of Llandaff, and he also held various other wealthy livings, including the prebendary of St Paul’s which would have put him into the thick of London society. Shute first married Diana Beuclerk, the daughter of the Duke of St Alban’s, who died in childbirth, and then Jane Guise, the daughter of a baronet, who brought him a large dowry. His personal fortune of £160,000 at death derived in part from his marriages but mainly from the emoluments

Morice v Bishop of Durham 173 of a well-rewarded career at or near the top of the Church hierarchy. The wealth of the churchmen in this era was notorious, and also a source of controversy as it was rooted in tithes and taxes that were seen to burden agriculture and business, and the fiscal emoluments and privileges of the clergy were finally curbed in legislative reforms in 1836. But all that lay in the future.39 During Barrington’s earlier career in London he drew closer to his great friend Wilberforce, and soon became his chief supporter and a major source of his funding, at a time when other clerics kept their distance. Barrington adopted Wilberforce’s anti-slave trade cause as his own, attacking that trade in 1775 as ‘a traffic as inhuman in the mode of carrying it on, as it is unjustifiable in it’s principle’.40 Wilberforce reciprocated Barrington’s admiration and support, referring to him as ‘a very sun, the centre of an entire system’.41 The two great men had much in common—born to wealth, power and privilege; urbane, sociable and well-spoken; and mixing radical fervour in religious and moral causes with the traditional views of the elite. Yet Barrington’s basic conservatism exceeded that of Wilberforce, and should not be ignored as a factor in their relationship. The Bishop demonstrated his loyalty to the Crown that had early preferred him by speaking in favour of the Anglican monopoly in public life, and even praising the Stuart monarchy and condemning the Commonwealthmen in public sermons (though his own forebears had been Roundheads). When Barrington’s father William fell victim to a court plot and lost his pension, George III reinstated his privileges and insisted that William’s son Shute be given the greater diocese of Salisbury to show the family favour. So in 1782, at the age of 48, Shute found himself ensconced in wealth and power in one of the most regarded clerical posts in England. Bishop Barrington immediately demonstrated to his new diocese his phenomenal capacities for charitable activity. He was talented both at getting and spending. He set up large charitable trusts to repair the cathedral and episcopal palace, and also to maintain the poorer clergy; this harked back to the medieval tradition of ‘pious causes’ that was evoked earlier, whereby charity was seen as nearly synonymous with the welfare of the Church. The new Bishop of Salisbury was especially successful at raising funds by public subscriptions, allowing donors to associate themselves with larger good causes, and here Barrington was helped by a well-publicised ‘anonymous’ donation by a Berkshire gentleman who toured the diocesan buildings for

39 EJ Evans, The Contentious Tithe: The Tithe Problem and English Agriculture 1750–1850 (London, Routledge & Kegan Paul, 1976); G Best, Temporal Pillars: Queen Anne’s Bounty, the Ecclesiastical Commissioners, and the Church of England (Cambridge, CUP, 1964). 40 S Barrington, Sermons, Charges and Tracts (London, Bulmer, 1811) 45. 41 JH Overton, The English Church in the Nineteenth Century, 1800–1833 (London, Longmans, Green, 1894) 89.

174 Joshua Getzler a whole day and concluded the tour by signing the subscription book and giving over a bill drawn for £1,000. The man’s credit was sound, for it was George III himself, travelling incognito in order to visit his loyal subjects and inspect the activities of a favoured bishop. Barrington certainly made charitable activity his leitmotif; for example, in a sermon in 1783 he spoke of his ‘ardent wish of contributing to the general welfare’ through philanthropy.42 But he was not all sweetness and light; in his sermons and public speeches he lambasted Methodists and dissenting evangelicals, and argued to maintain the religious disabilities against non-conformists and most especially against Catholics.43 His concept of charity was not general investment in religious life and community, but rather that respectable Anglican society should pour money into the national Church to enable it to do good works, guided by safe hands such as his. Perhaps blunting the aggression of his public political views, Barrington was known to be genial and broad-minded in his personal life. He had warm relations with evangelicals within the Church and dissenters without, closer perhaps than any other leading churchman; and he also befriended French Catholic bishops exiled by the Revolution, whom he supported materially. Shute Barrington’s star ascended still further when he became the Prince Bishop at Durham in 1791, and this led to further enlargement of his charitable enterprises. Perhaps the crown of this was Barrington’s creation of a network of educational institutions, starting with Sunday schools and eventually leading to whole systems of day schools and teacher training colleges. As a great landowner at Durham, he was adept at squeezing rents and mining royalties to pay for his charities, and his final major round of school foundations was paid for by a legal action he won for arrears of lead-mining royalties that yielded him the vast sum of £70,000. Barrington was also closely involved in charities for dissemination of bibles and other books to the poor, for the education of clergy and teachers, and for the promotion of ecclesiastical scholarship; for example, William Paley did his greatest work as a moralist and theologian in Barrington’s circle in Durham, and Barrington appointed him to a wealthy rectory to support him in old age. Barrington’s charitable activities remained thoroughly entwined with those of Wilberforce, particularly after the move to Durham. Together they created in 1796 the Society for Bettering the Condition and Improving the Comforts of the Poor, and they recruited the national clergy in droves to support it. But this was only their largest and most prominent venture; together they also started up nearly 50 other charities, with Barrington personally 42

Barrington (n 40) 76. Shute Barrington’s views of Roman Catholicism are laid out in his tract The Grounds on which the Church of England Separated from the Church of Rome Reconsidered, in a View of the Romish Doctrine of the Eucharist (London, Bulmer, 1809). 43

Morice v Bishop of Durham 175 serving as President or in some other office-holding role in maybe half of Wilberforce’s philanthropic organisations. The two men’s philanthropic partnership dominated Anglican social action at the turn of the century. Barrington saw philanthropy and faith as the twin foundations of his religion: ‘genuine Christianity’ was ‘the union of pure devotion with universal benevolence’.44 He was said to be frugal at home in order to be liberal in the world outside: ‘No one … ever better understood the true value of money, or employed it more judiciously as the instrument of virtue.’45 So how did so great a figure as Shute Barrington and one so worldly in the ways of clerical finance become embroiled in the headache of the Cracherode inheritance? Much may be learnt from the Bill and Answer in the case of Morice, together with other Chancery records touching on the case that are preserved in the National Archives.46 We must be careful in using the pleadings of the rival parties and the arguments of counsel as objective sources of fact; but where the parties managed to agree, we can be relatively certain of the forensic value of these narratives. Before moving into the details of these pleadings it is as well to set forth what can be known of the plaintiff William Morice himself.47 He was born in 1733, a first cousin of Clayton and Ann, his father being brother to Cracherode’s mother. Confusingly, Morice’s father was also named William; and his sister, the co-plaintiff, shared the name Mary with Clayton’s mother. William Morice was educated at Hertford College, Oxford, and served as a curate and then rector in London over a good half-century. From 1768 he held the post of Secretary of the Society for the Propagation of the Gospel, and organised missionary activity across the globe; in this role he became close to the Archbishop of Canterbury and the Bishop of London, luminaries of that Society. He must have greatly impressed the church elders in London, for in 1772 he became Chaplain-in-Ordinary to the King, and was made a Doctor of Divinity in 1781. He was a well-connected and important churchman in his own right, and would have had the self-confidence to challenge even a great prelate such as Shute Barrington in order to prevent the residue of his cousin’s estate leaving the family. With seven children of his own he certainly would have need of the money, as his counsel Romilly adverted to in argument. William brought the action to claim the

44

Barrington (n 40) 244. Durham County Advertiser, 8 April 1826, 4, col 1. 46 National Archives, London, C 13/602/15—Bill in Chancery of William and Mary Morice; Answers of Shute Barrington, the Lord Bishop of Durham, the Reverend Richard Bullock, and four others; C 13/1378/9—Examination of Shute Barrington, Bishop of Durham; TS 11/371—Copy Bill and Brief of the Attorney-General Spencer Perceval (with annotations of counsel, Mr John Mitford) in Morice v Bishop of Durham; the various documents are dated January–November 1803. 47 FV Mills, Sr, ‘William Morice (1733–1819)’, Oxford Dictionary of National Biography (Oxford, OUP, 2004), online edn accessed 30 July 2010. 45

176 Joshua Getzler residue of cousin Ann’s estate jointly with his sister Mary, of whom little is known. William lived at 53 Gower Street, midway between the sites where University College and the new British Museum were to be built some two decades after his great case. According to William Morice’s pleadings,48 Clayton Cracherode had died leaving real estate of over £50,000. The Bill narrated that legacies were given of £500 to the Westminster School, £100 to the Westminster Infirmary, then a conventional trust to pay debts. The residue of Clayton’s real and personal estate was said to be left to Ann. Morice may not have stated the whole of the estate value nor the terms of the will accurately; according to probate, Clayton had left behind over £100,000 in 3 per cents, yielding £2,300 per annum, as well as his lands and his vast art and book collection. His rents alone brought him £800 per annum. His legacies and bequests were in fact on a much greater scale than Morice’s Bill narrated—£1,000 each to Westminster School and Christ Church, his collections and much of his personalty to the British Museum. It was notable that Parliament bestowed upon Clayton’s various public donations an ad hoc charitable exemption from duties, a privilege embracing the legacies to the educational corporations and ‘the Books etc lately bequeathed to the British Museum’.49 Clayton also made assorted smaller bequests to friends.50 Shute Barrington was left three precious early sixteenth-century copies of the Bible from Spain and Italy, and another friend received further antique books, including one of the earliest Homeric texts extant in print. These treasures were later gifted back into the Cracherode collection at the British Museum by the recipients. The scale of Clayton’s overall and residual estate turned out to be an important issue in the will proceedings that followed Ann’s death. This was because the first important claim of Morice was that Ann was too old and frail to understand the size of her inherited fortune. Therefore her testamentary instruction directing the residue of her personal estate to the control of Barrington was vitiated by mistake or ignorance, since Ann had no idea of the great extent of that residue. According to the Bill, the octogenarian Ann was ‘very deaf so as to be constantly obliged to use an Ear Trumpet … very weak and infirm in Body … and was unacquainted with the extent of her Brother’s Fortune’. Then came what was in effect an accusation of undue influence against the good Bishop Barrington. Apparently Barrington had never met Ann Cracherode before Clayton’s

48

C 13/602/15, Bill of William and Mary Morice, dated 27 January 1803. The Times, 20 June 1799, reporting a House of Commons resolution in committee the day before. 50 Clayton’s personal papers were destroyed on his death, as his will dictated. Probate and the records of the British Museum may reveal how much of his personal estate went to the British Museum and how much was bequeathed elsewhere. 49

Morice v Bishop of Durham 177 death. But the Bishop introduced himself ‘a day or two after the Death of Clayton’, as a friend of the deceased who knew Clayton’s mind very well and who would ‘assist her in the arrangement of her affairs’ and help her distribute her estate to such objects as Clayton would have wanted. Terms for various legacies were discussed, and then the undue influence, even pressure began. According to the Bill, Barrington won Ann’s confidences and in due course insisted that he be made sole executor and residuary legatee of the personalty, for him to distribute to ‘such objects of benevolence and liberality’ as he ‘in his own discretion shall most approve of’. On the day he made this proposal, the Bill asserted, he insisted on a positive answer, else ‘he would have nothing more to do with her concerns and walked into the next room’. Ann decided to concede what the Bishop asked, for as she said, the ‘Lord Bishop was a good Man’, of ‘high rank, higher than her family’; and he would take nothing for himself but ‘an Office of Care and Trouble’. According to the Bill, Barrington then affirmed to her that he ‘refused to take the Executorship on any other condition than as a Trust, and not for his own Benefit’. Very shortly a new will by Ann had been drafted with Barrington’s assistance, leaving a £16,000 legacy to the cousin William Morice, a further £17,000 to one Reverend Richard Bullock DD, another high-born and well-connected London clergyman, and various other small legacies to kin and friends, together with the traditional clause dictating a trust to pay all debts due at death. The residue of personalty left on Ann’s death in 1802 turned out to be more than £30,000. To estimate the scale of this wealth, on an historical retail price index this would amount in present prices to £2.1 million. On an average earnings index the figure is 10 times greater. Morice prayed for this enormous gift of residue on trust to be declared ‘void for uncertainty’, but also argued that it was voidable for mistake and ignorance since Ann did not know what she was leaving, and also bad due to ‘misrepresentation’ and pressure by the Bishop. The terms of the misrepresentation were that Clayton had wanted the residue of the family wealth to go to charity, but that the Bishop had misrepresented his wish in order to induce Ann to give him the greater powers over the residue. It was further suggested that the large legacy to Bullock was tainted by the conduct of the Bishop in procuring it.51 The Reverend Bullock gave his own Answer to the Bill, protesting his bona fides and those of the Bishop, and defending his large legacy from impeachment. His own career exemplifies that union of money, religion and

51 Bridgeman v Green (1755) 2 Ves Sen 627, 28 ER 399 (per Lord Wilmot) had established that an innocent third party could not retain a benefit procured by the fraud or undue influence of another; the doctrine was affirmed by Lord Eldon shortly after Morice in Huguenin v Baseley (1807) 14 Ves Jun 275, 33 ER 526. For the relationship of the more familiar equitable undue influence with the separate probate jurisdiction over undue influence, see P Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 LQR 617, 620–26.

178 Joshua Getzler patriotism of his generation of clerics. In 1797, during a fiscal crisis caused by war, he joined a lobby of merchants under the Lord Mayor publicly advocating acceptance of convertibility of Bank of England notes,52 and in 1798 he organised a ‘voluntary subscription’ in his parish in Streatham to raise further war finance; £1,493 5s was immediately subscribed ‘with the most perfect Unanimity … and a Committee was appointed to receive the further Subscriptions of such Persons as were prevented attending here to-day’. The good parishioners then voted to thank their Reverend for his ‘impartial Conduct’ in collecting and directing their money to the good of the nation.53 He even married his daughter patriotically, to a Scottish RearAdmiral. As it turned out, his sizeable legacy from Ann survived Morice’s attack. But the Bishop was not so fortunate. What are we to make of the accusations of wrongdoing made against a noble and regarded Bishop? It may be that these were merely a conventional type of allegation, not entirely specious but added to the pleadings to lard up the case. Accusations of bad conscience might also be added in to provide a firm basis for the jurisdiction of Chancery as a court able to prove or void a will. The trying of fraud gave the Lord Chancellor a juristic cause to remove the probate from the default jurisdiction of the Prerogative Court of the Archbishop of Canterbury; trusts raised against a deceased’s estate for payment of debt could perform a similar jurisdictional function.54 We might also guess that the allegation of fraud was inserted substantively as an alternative ground of decision, a backstop, should the uncertainty argument fail. It may be that insinuating bad conduct in one’s adversary was part of the rhetorical process of argument in the Court of Conscience, tracking the classical rhetorical rules that one should make sure to blacken one’s opponents and destroy their credibility when putting one’s own case. No outright accusation of fraud or undue influence was made, simply ‘misrepresentation’ and exploitation of ‘mistake’ and ‘ignorance’, what we might now call unilateral mistake or exploitation of vulnerability vitiating full consent by the testatrix. Yet the narration of how Barrington had stormed out of the room in order to push Ann to accept his sole executorship and control of her residue, presuming on his power as a man of rank and importance, looks like something more than a conventional story. Maybe Morice even showed a certain daring in so impugning the conduct of a great Lord Bishop in open court. As it turned out, arguments concerning fraud and vitiated intention never surfaced in the two Chancery hearings of 1804 and 1805; indeed the Bishop’s good faith was anxiously affirmed at all times. We cannot know if the court’s decision to avoid the 52

The Times, 27 February 1797. The Times, 13 February 1798. 54 Helmholz (n 14) and references (n 19) above. I am grateful to Mike Macnair for the point about trusts for debt. 53

Morice v Bishop of Durham 179 will for uncertainty was driven in part by judicial unease at the Bishop’s conduct. The merits may have been against him as well as the law. What, then, was Barrington’s defence? In his Answer55 he stated that Ann at all times was of ‘perfect mental faculty’ and ‘went walking in fine weather’. She spoke clearly, ‘in distinct voice’. Before making her will she had taken an account of her estate and knew exactly its extent and what she was doing with it. Barrington claimed he himself had no idea of the extent of the estate and thought the residue likely to be ‘negligible’. Ann had initially asked Barrington to be executor, ‘and pressed him to accept the Residue for his own use which he declined … She then desired this Defendant to accept it in Trust’. Barrington asked her if she had no person to give it to; on ‘her assuring him she had not’, he agreed to proceed. Another factor was that Ann’s agent who managed her estates had quite recently lost her the sum of £800, whether through negligence or fraud it was not said. Ann had asked cousin William to manage her affairs after that incident, but then turned to her new friend Barrington for help because of his ‘high Rank compared to her Relations’. Ann some time later dictated a new will revising her legacies and providing that the residue be distributed by the Bishop to the kind of objects that her late brother might have approved; the Bishop took that to mean that he should have a ‘power’ and ‘discretion’, and recorded that instruction in the language of ‘objects of benevolence and liberality [etc]’. There seem to have been various drafts and codicils, but ultimately the will was finalised on 16 April 1801. The story of his storming from the room to force Ann’s hand the Bishop rejected, with ‘protestations of Honour’, asking why no witness of the parlour incident had been brought forward as informer.56 There is one more element of the story of the relationship of Ann and her new friend ‘of high Rank’, the Lord Bishop. Barrington included Ann in a series of London dinners and charity events between the time of their meeting in 1799 and her death three years later.57 There she could mingle with the cream of society and tastefully advertise the application of her newly-inherited wealth to good causes. The Times reported a star-studded event that took place on 27 March 1801: At a Respectable MEETING of INHABITANTS of the METROPOLIS … for the purpose … of commencing a SUBSCRIPTION for the FURTHER RELIEF of the LABOURING POOR of the Cities of London and Westminster, the Borough of Southwark, and adjacent Parishes; The LORD BISHOP of DURHAM in the Chair: Resolved unanimously, That a further Subscription be now made, for the

55

C 13/602/15, Answer of Shute Barrington, 14 May 1803. These details come from C 13/602/15, Answer of Shute Barrington, and TS 11/371, Copy Bill and Brief of the Attorney-General. 57 Death Notice, The Times, 19 July 1802, overstating Ann’s age at death as 85, again styling her ‘Mrs Anne Cracherode’. 56

180 Joshua Getzler purpose of alleviating the distresses of the Industrious Poor, by affording them certain Articles of Provision at reduced prices, and for other necessary relief.

A subscription was immediately entered, and at the head of the list of 64 subscribers stood the Bishop of Durham, who gave £52 10s, his wife, who gave £10 10s, and in the third place one ‘Mrs Cracherode’ who gave £10 10s. Forty-ninth was ‘W Wilberforce Esq, MP’, who gave £21. Many others gave £50, but Ann Cracherode (for it must have been her; ‘Mrs’ denoted a woman of rank as well as a married one) was given the greater honour. The meeting then empowered a ‘Committee for the Relief of the Industrious Poor of the Metropolis’ comprising ‘Noblemen and Gentlemen’ (including the Bishop and Wilberforce) to carry forward the good works; fresh subscriptions were invited to be received ‘at Lloyd’s Coffee-house … and by all the Bankers of the Metropolis’. We find Ann supporting a prominent London charity in March 1802, being a School for the Indigent Blind at St George’s Field. Again the Lord Bishop of Durham gave his imprimatur to this cause, serving as President. Ann gave £3 3s, alongside more than 150 other London worthies, but was unable to attend the sumptuous annual subscription dinner on 3 June; a few weeks later, on 17 July 1802, she died at her home in Queen Square, Westminster. The equity suit to overturn Ann’s bequest of residue commenced very shortly after her death in July 1802. After the initial decree in 1804, a notice was published on 23 July of that year addressed to Ann’s creditors, requiring them to bring their claims against the estate to a Master in Chancery or be excluded from the distribution.58 The appeal of March 1805 was followed swiftly by moves to execute the Morice claim; we have a notice of an auction of the Cracherode properties ‘to be peremptorily SOLD’, conducted on 30 April 1805 by the same Master in the Sale-Room of the Court of Chancery.59 And with this sale completed and the decree executed, Ann fades from public record.

E. THE LEGAL ARGUMENTS: BEFORE THE MASTER OF THE ROLLS

We have investigated the dramatis personae of this case in some detail. We may now turn to the arguments in court, which commenced before the Master of the Rolls on 7 February 1804. Counsel for Morice was Samuel Romilly, later to become a notable Solicitor-General and criminal law

58

The Times, 23 July 1804. The Times, 22 April 1805. There was a flutter of controversy whether the auction was tainted by its timing, possibly being mounted before all the public knew the confirmed results of the main litigation: see Morice v Bishop of Durham (1805) 11 Ves Jun 57, 32 ER 1009, per Lord Eldon C. 59

Morice v Bishop of Durham 181 reformer. In speaking against the Bishop’s claim to execute the residue, it is interesting what Romilly did not argue as well as what he did. The accusations of misrepresentation and undue influence contained in the pleadings seem to have been quietly dropped. This omission struck Lord Eldon as remarkable on the appeal. During the later hearing of 18 March 1805, he entered in his judicial notebook: ‘As to alledged mistake of Mrs C in making her will, that was not insisted upon at the hearing.’60 Barrington must have appreciated the tact as well as the skill of the counsel who helped defeat him, for shortly after the suit he appointed Romilly as Chancellor of the County Palatine of Durham, a lucrative post with few duties. Was there a secret or tacit pact? Romilly seized on Barrington’s statement in his Answer abjuring any personal interest in the residue: ‘This is admitted to be a trust…’ The key question then was whether the trust could take effect as a charity. The object of ‘benevolence’ might be read as a synonym for charity but not ‘liberality’, which tended to mean generous bounty to the public or to individuals at large. Romilly noted that ideas of charity and liberality changed over time: ‘Formerly [that is, in ancient Rome] exhibitions or combats by wild beasts and gladiators were considered objects of liberality.’ Today an exhibition of pictures for the public to enjoy might count as liberal provision, but this was not charitable giving comparable to the founding of a hospital. Neither would a court enforce a liberal trust to give a person or class of persons comforts. Romilly admitted there was little case law discussing uncertain objects of beneficence. The closest case was the unreported Brown v Yeall before Lord Thurlow,61 where it was decided that a trust to distribute religious books at large was ‘so absurd and impracticable, that it was impossible to execute it’, even though the goals of advancing religion and book-learning were laudable charitable objects. A modern court might say that the trust in Brown failed on the criterion of administrative unworkability. In Attorney-General v Whorwood, a 1750 case before Lord Hardwicke, a man gave his house in trust to University College, Oxford, the property to be inalienable for so long as a senior fellow should live in the house and give hospitality. The gift failed as charitable devise; Lord Hardwicke held that the addition of vague words requiring a good and civil use of the property did not add a tincture of charity to a private bequest; a benefit to one individual fellow who was expected to use the property casually to please others was private bounty only, it was a gift ‘answering no good to the college or the public’. The next question in Whorwood was whether the devised property was to go to the college absolutely, or to the heirs at law on resulting trust; this key question was reserved upon further inquiry 60 Lord Eldon, Judicial Notebook 1804–05, MS, Georgetown Law Library Special Collection, at 99. 61 Noted in Moggridge v Thackwell (1802) 7 Ves Jun 36, at 51–52; 32 ER 15, 20.

182 Joshua Getzler into the powers of the landowner as donor and of the college as donee.62 Romilly then raised the recent case of Townley v Bedwell,63 where before the Lord Chancellor he had argued to preserve a trust created to maintain a botanical garden. The testator had transferred his garden to trustees, and the residue of his personal estate to create a fund for the maintenance and enlargement of the garden. The testator also stipulated that the garden was to exist in perpetuity, ‘as I trust it will be a public benefit’. Romilly had compared this bequest to a valid trust to maintain a naval monument, but Lord Eldon had pointed out that trusts for monuments depended on the goodwill of the residuary heirs who ‘might pull it down’, that is they were merely trusts of imperfect obligation. The opposing argument of Richards, counsel for the heirs, was ‘that the object being either void, or not declared’, the property could not be converted as specified in the will instruction. Lord Eldon, agreeing that no valid charitable object had been stated, ‘asked, for whose benefit all this was to be’.64 He stressed that quite apart from mortmain constraints on perpetual charitable dedication of land by will,65 the gift of personalty to sustain the garden was void for vague objects. In the present case of Morice the roles of the two counsel in Townley v Bedwell were reversed, with Romilly now arguing for invalidity and Richards for validity. Richards was joined by Mitford representing the Attorney-General to support the charitable bequest. In the Rolls Court Richards did not directly argue that the Bishop might have taken an absolute ownership or general power subject to precatory instructions. Instead the suggestion was that if he took the property on trust to appoint to charitable objects that had failed for vagueness or impossibility, the trustee would be expected in due course to appoint to different charitable objects under the doctrine of general charitable intent. It would therefore be ‘premature’ to rush to court to avoid the initial trust whilst the trustee yet had that ‘personal trust reposed … to exercise his discretion’. For support counsel referred to Moggridge v Thackwell, an important case that had been argued elaborately before Lord Eldon two years before.66 In that case a testatrix had left a large personal residue to an executor, ‘desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters’. The court could uphold the bequest as showing a general charitable intent,

62 Attorney-General v Whorwood (1750) 1 Ves Sen 534, 27 ER 1188, per Lord Hardwicke C Romilly claimed that later report held that the next of kin obtained the property in that case, but his reference to Corbyn v French (1799) 4 Ves Jun 418, 434; 31 ER 213, 221, per Lord Redesdale reveals no such result. 63 Townley v Bedwell (1801) 6 Ves Jun 194, 31 ER 1008; there was to be another round of litigation, (1808) 14 Ves Jun 591, 33 ER 648. 64 Townley v Bedwell (n 63) 198, 1011. 65 Eg the Charitable Uses Act 1736. 66 Moggridge v Thackwell (1802) 7 Ves Jun 36, 32 ER 15.

Morice v Bishop of Durham 183 even though the instruction to benefit a certain class of clergymen selected by moral worth (and fertility) was inept; the court could still enforce the executor’s distribution to general charitable objects, allowing that he might have an eye on the precatory words appended to the bequest. Lord Thurlow had found the case marginal, and Lord Eldon reheard it after Thurlow’s death. Lord Eldon had affirmed with some reluctance, as the general intent doctrine could be pushed too hard in preventing illegal, ill-judged and inept bequests being resulted back to the innocent heirs at law. The policy mischief was that the Crown could use cy-près to whisk away failed bequests from families whenever any kind of charitable intention could be discerned on the part of a testator. In his Moggridge judgment Lord Eldon tried to reconcile the warring authorities by giving a clear statement of the operation of cy-près:67 [T]he testator’s intention of charity was the principal intention; that he meant at all events some charity; that his unlawful purpose was a mode of disappointing it; and the mode therefore was out of the question; and the intention should be carried into effect by another mode.

Applying these principles to the present case, counsel for the Bishop argued that the object in Moggridge of promoting clergymen who had proved their moral worth and their capacity for offspring ‘was as loose as can be described’, yet Lord Eldon had allowed that trust to stand. Helping persons who had fallen on hard times and whose expectations of life had been ruptured could be called ‘charity’ or ‘benevolence’—‘[t]hese are subjects upon which different opinions will be held’. Since the Cracherode will had shown an intent to pursue goals encompassing charitable giving, it could be seen as a charitable bequest choosing an inadequate mode, and the court could either wait and see if appointments were made within due confines of charity or else immediately order reappointment by cy-près. Next the great opinion of Wilmot CJ in the case of Attorney-General v Lady Downing68 was invoked by Richards and Mitford to press a generous application of cy-près. Wilmot CJ was asked to give his advice in Chancery as to the proper law regarding a charitable gift to found a new college in Cambridge. The testator, Sir George Downing, had made the will in 1717 but died a generation later in 1749, after the passing of the 1736 Charitable Uses Act which would have avoided any testamentary gift of realty or funds to purchase realty. Downing was so long-lived that all five of the executors named in the will had died. His heir at law inherited the land subject to the gift instruction, then died and gave all his property to

67 Ibid, 77; 29. Jones (n 12) 146–47 confuses Eldon’s commentary on past cases with those issues being decided presently in the court. Eldon’s tortuously discursive style makes such confusion a constant risk for the modern reader. 68 Attorney-General v Lady Downing (1767) Wilmot 1, 97 ER 1.

184 Joshua Getzler his wife. The Attorney-General then sued the wife to execute the charitable trust and endow the college. Wilmot CJ held that the 1736 Act should not operate with retrospective effect to catch wills made before its passing; and that outside the Act general issues of controlling mortmain gifts to corporations should be decided by the Crown as a question of public policy, and not decided by the courts. In any case the general charitable intent of the founder was clear, and the court should find a way to ensure a charitable use of the wealth would occur, eg by finding a trust for charity rather than a trust to build a particular form of perpetual college. The death of the trustees did not defeat the gift as the King could take over the execution. But the death of an appointee might have destroyed a power to appoint to charity. In the result cy-près was ordered and the Crown took over the execution of the trust; the funds were then applied to endow the college as had been intended. To justify the power of the court to take over failed charitable gifts, Wilmot CJ had investigated the sources of charity law in Roman as well as Church sources. The core passages of his judgment are worth recalling:69 Property, destined to superstitious uses, is given by Act of Parliament to the King, to dispose of as he pleases; and it falls properly under the cognizance of a Court of Revenue. But where property is given to mistaken charitable uses, this Court distinguishes between the charity and the use; and seeing a charitable bequest in the intention of the testator, they execute the intention, varying the use, as the King, who is the curator of all charities, and the constitutional trustee for the performance of them, pleases to direct and appoint. If it were res integra, much might be said for the heir at law; because in every other case, if the testator’s intention in specie cannot take place, the heir at law takes the estate. And as the motive inducing the disinherison in a charitable devise, is a passion for that particular charity which he has named, if that particular charity cannot take place, cessante causâ, cessaret effectus. The right of the heir at law seems to arise as naturally in this case as in any other; but instead of favouring him as in all other cases, the testator is made to disinherit him for a charity he never thought of; perhaps for a charity repugnant to the testator’s intention, and which directly opposes and encounters the charity he meant to establish. But this doctrine is now so fully settled, that it cannot be departed from; and the reason upon which it is founded, seems to be this: The donation was considered as proceeding from a general principle of piety in the testator. Charity was an expiation of sin, and to be rewarded in another state; and therefore, if political reasons negatived the particular charity given, this Court thought the merits of the charity ought not to be lost to the testator, nor to the public, and that they were carrying on his general pious intention; and they 69

Ibid, 32–34; 13–14.

Morice v Bishop of Durham 185 proceeded upon a presumption, that the principle, which produced one charity, would have been equally active in producing another, in case the testator had been told the particular charity he meditated could not take place. The Court thought one kind of charity would embalm his memory as well as another, and being equally meritorious, would entitle him to the same reward. There is a law in the Digest, which seems to have furnished a hint for varying the destination of a donation to the public.70 … It is plain they looked at the motive of the gift, the immortalizing the memory of the donor, which was the only future reward a Pagan could enjoy. For this law was made 100 years before Christianity was the religion of the Empire. The particular spectacle directed was only the means by which that future reward was to be secured. Any other spectacle would as effectually answer that purpose. They looked at the end and aim of that benefaction, and shaped the means in such a manner, as without any violation of the laws, might secure the attainment of it. The reason, which animates the law, applies as forcibly to a legacy given to a charitable use under the Christian dispensation.

Wilmot CJ concluded that since the dominant purpose of a charitable donor was to seek honour or redemption, even if the specific bequest was a ‘pillar of vanity’ that could not be executed as intended, the donor’s desire for fame or salvation continued and should be effected by the court through some other mode. The alternative solutions of either returning the assets to the heirs, or vesting the assets absolutely in the executors as an unassigned residue, were both unacceptable. Counsel for the Bishop in Morice relied heavily on Wilmot CJ’s broad view of cy-près in order to support the Cracherode bequest, but they had sampled very selectively the history of cy-près cases and had radically simplified a complex body of law. A counter to the wide doctrine of the Downing case had been developed by Sir Pepper Arden MR in the case of AttorneyGeneral v Bishop of Oxford (1786), stating that a trust disposition towards a special charitable object could not be subject to cy-près unless there was a ‘general charitable intent’.71 This was a valuable corrective to the tendency of some earlier Lord Chancellors to ride roughshod over the specific charitable intentions of donors, as in the celebrated or infamous case of Da Costa v De Paz.72 There Lord Hardwicke C had held that a bequest to a ‘Jesuba’ (ie a yeshiva or house of Jewish study) was not to be tolerated by

70 Digest of Justinian 33.2.16 (Modestinus) and 33.2.17 (Scaevola) were here quoted, recounting how a testamentary gift was made to a town to put on an annual spectacle to honour the memory of the testator. The spectacle could not go forward as planned; the proper solution was for the town elders to meet to reallocate the gift to a fresh commemoration since ‘it was unfair that the sum which the deceased had intended for the spectacle should fall to the profit of the heirs’. 71 Cited and discussed in Corbyn v French (1799) 4 Ves Jun 418, 431–32; 31 ER 213. 72 Da Costa v De Paz (1754) Dick 249, 21 ER 268; Amb 228, 27 ER 150; 2 Swanston 532, 36 ER 715.

186 Joshua Getzler an English court, and yet the donation being charitable in intent could be applied instead to a charity of the Chancellor’s choosing. He applied the funds to a foundling home that would bring up children in the Christian faith. The case was relied upon by Wilmot CJ in the Downing case in 1767 and was regarded as good law;73 but in its result Da Costa v De Paz had shocked the conscience of society. Later judges rebelled and began shaving back the operation of cy-près, particularly where religion was concerned. In the case of Isaac v Gompertz before Lord Thurlow on 17 July 1786,74 all but one of a group of legacies to support Jewish study and religion were upheld as charitable, save one legacy of funds for maintenance of a synagogue, this being reserved for the Crown to decide upon an appointment cy-près. Frederic Maitland in his late essay ‘Trust and Corporation’ supposed that trust law as a form of associational law had been an important force in allowing non-Anglican religions to function under the Anglican monopoly; he was right, but the road was bumpy.75At any rate, by the time of Morice a body of law hostile to cy-près had amassed,76 and this law would have been present to the mind of the judges. To return now to counsel’s arguments: Romilly in reply picked up the issue of who should get the residue of a failed charitable bequest. He distinguished the present case from Cook v Duckenfield,77 where a testator settled property on trust for charitable distribution to objects later to be nominated but forgot to make a codicil supplying any such instructions. It was impossible to accept that the trustee-executors could have been allowed to keep the unallocated residue in such circumstances since a trust intention was obvious. But neither could there be any finding that the property should result back to the heirs, as the testator had made clear that he wanted the fund to go to charity and not his heirs. Cy-près was therefore ordered. However, in the present case of Morice, no such charitable intention appeared: ‘It is extraordinary, if this testatrix meant charity, that she

73

(1767) Wilmot 1, 34–35; 97 ER 1, 14–15. The case was summarised by A-G Perceval in arguendo in Moggridge v Thackwell (1802) 7 Ves Jun 36, 32 ER 15. 75 FW Maitland, State, Trust and Corporation (D Runciman and M Ryan (eds)) (Cambridge, CUP, 2003) 75. Jones (n 12), 140–43 gives a valuable corrective. See, eg, In re Masters of Bedford Charity (1819) 2 Swanston 470, 36 ER 696, where Lord Eldon C refused to allow charitable funds for the education, apprenticeship and marriage of persons engaged in religious practice to be made available to Jewish children who fitted the qualifying criteria. His peroration is at 527–28, 712: ‘I apprehend that it is the duty of every judge presiding in an English Court of Justice, when he is told that there is no difference between worshipping the Supreme Being in chapel, church, or synagogue, to recollect that Christianity is part of the law of England …; that in giving construction to the charter and the acts of parliament, he is not to proceed on that principle farther than just construction requires; but to the extent of just construction of that charter and those acts, he is not at liberty to forget that Christianity is the law of the land.’ 76 Jones (n 12), 134–53. 77 Cook v Duckenfield (1743) 2 Atk 562, 26 ER 737, per Lord Hardwicke C. 74

Morice v Bishop of Durham 187 did not say so; and how she could avoid a word so likely to occur.’78 Since retention by the executor was not a possibility anymore, a resulting trust to the next of kin had to follow. It is important to examine here a case Lord Eldon mentioned later in the appeal, and which would also have been present to the lawyers’ minds in the Rolls hearing, namely, Bishop of Cloyne v Young.79 The decision held that executors holding a residue unallocated by a will could no longer presume to keep the residue as tacit beneficiaries but must result that wealth back to the heirs at law for land and heirs at will for personalty in the absence of a contrary intent for them to take any benefit from their office.80 This was a key case extending the presumption of strict accountability for fiduciaries installed by Keech v Sandford in 1726;81 prior to 1750 executors enjoyed a presumption that they could keep any residue of a deceased estate as payment for their trouble.82 Sir William Grant’s judgment in Morice was short and addressed only a handful of the points argued before him. He began by stating that ‘[t]he only question is, whether the trust … be a trust for charitable purposes. That it is upon some trust, and not for the personal benefit of the bishop is clear from the words of the Will; and is admitted by his Lordship; who expressly disclaims any beneficial interest.’ If it were not a charitable trust then it clearly would fail for lack of objects. It was ‘too indefinite to be executed by this Court,’ and ‘[t]here can be no trust, over the exercise of which this Court will not assume a control; for an uncontrollable power of disposition would be ownership, and not trust’.83 A clear trust imposed for the benefit of uncertain objects must therefore leave property undisposed that must result back to the takers in default. This was a slightly different point from that decided in Cloyne, for the residue in Morice was caused by a failure of an attempted disposition, not by a gap or privation of dispositive intention leaving property in the hands of the executor with no information

78

(1804) 9 Ves Jun 399, 404; 32 ER 656, 659. Bishop of Cloyne v Young (1750) 2 Ves Sen 91, 28 ER 60, per Lord Hardwicke C. 80 Sir William Grant MR, in a case following Morice, gave an example of when circumstances allowed executors to keep a residue of a will, namely, where the assets had been subject to a general power allowing them to appoint to themselves: Gibbs v Rumsey (1813) 2 Ves & Bea 294, 35 ER 331. He pointed out that Morice could be distinguished since the executor in that case had clearly not been intended to have any possible beneficial claim to the assets. These points regarding the default destination of unallocated residue are elaborated in Morice v Bishop of Durham (1809) 2 Ves Jun Supp 177, 34 ER 1046. Because of doubts, the presumption against executors enunciated in Bishop of Cloyne v Young was afforced 80 years later by the Executors Act 1830. 81 J Getzler, ‘Rumford Market and the Genesis of Fiduciary Obligations’ in A Burrows and A Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (Oxford, OUP, 2006) 57; DR Paling ‘The Pleadings in Keech v Sandford’ (1972) 36 Conv 159. 82 See North v Crompton (1671) 1 Ch Cas 196, 22 ER 759; Fane v Fane (1681) 1 Vern 30, 23 ER 284. 83 (1804) 9 Ves Jun 399, 404–05; 32 ER 656, 658. 79

188 Joshua Getzler about what might have been intended for it. These were two different types of automatic resulting trust, to use anachronistic language.84 Grant MR next made his well-known holding that all non-charitable trusts ‘must have a definite object’, for reasons of enforceability by the court: ‘There must be somebody, in whose favour the Court can decree performance.’85 This, as has been pointed out more than once, is a non sequitur, for even if the class of objects was amorphous, the court could still decree performance to someone who fairly fell within the class. Some further argument is necessary to explain why the court must know exactly who the beneficiaries are before decreeing performance. It may be that the equitable presumption of equality of distribution in the absence of a contrary indication meant that a complete class of definite beneficiaries had to be identified before a private trust could be recognised.86 The principle of Saunders v Vautier,87 giving the complete set of beneficiaries a power to take the legal estate, still lay in the future,88 but Grant MR’s theory nonetheless seems to look at a trust as vesting equitable estates in the beneficiaries, and the court therefore had to know who the equitable owners were before it could execute the trust. This view did not take account of the operation of discretions and power to appoint which inevitably blurred the sense of a fixed class of beneficiary-owners. Grant MR next addressed the issue of a possible charitable intent in the Cracherode bequest. He acknowledged that charities were peculiar in that cy-près was available to reform the objects where a charitable intent was present but the objects were too uncertain to be enforced. However, in this case, the choice of the words ‘liberality and benevolence’ could not be read as objects of charity and hence there was no general charitable intent. ‘That word [ie charity] in its widest sense,’ he explained,89 denotes all the good affections, men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in this Court. Here its signification is derived chiefly from the Statute of Elizabeth. Those purposes are considered charitable, which that Statute enumerates, or which by analogies are deemed within its spirit and intendment; and to some such purpose every bequest to charity generally shall be applied.

84

Cf WJ Swadling, ‘Explaining Resulting Trusts’ (2008) 124 LQR 72. (1804) 9 Ves Jun 399, 405; 32 ER 656, 658. 86 Kemp v Kemp (1801) 5 Ves Jun 849, 31 ER 891, per Sir Pepper Arden MR. 87 (1841) 4 Beav 115, 49 ER 282 (MR); (1841) Cr & Ph 240, 41 ER 482 (LC). 88 P Matthews, ‘The Comparative Importance of the Rule in Saunders v Vautier’ (2006) 122 LQR 266; J Getzler, ‘Transplantation and Mutation in Anglo-American Trust Law’ (2009) 10 Theoretical Inquiries in Law 355. 89 (1804) 9 Ves Jun 399, 405; 32 ER 656, 658–59. 85

Morice v Bishop of Durham 189 This confinement of charity to analogies to the Statute had never been stated quite so boldly or baldly before.90 Grant MR concluded that the testatrix’s choice of the words ‘liberality and benevolence’ and the purposeful avoidance of the word ‘charitable’ was done ‘in order to leave the Bishop the most unrestrained discretion’. And it followed that ‘the trusts may be completely executed without bestowing any part of this residue upon purposes strictly charitable’. The conclusion was that ‘[t]he residue therefore cannot be said to be given to charitable purposes; and, as the trust is too indefinite to be, disposed of to any other purpose, it follows, that the residue remains undisposed of; and must be distributed among the next of kin of the testatrix’.91

F. THE LEGAL ARGUMENTS: BEFORE THE LORD CHANCELLOR

On the appeal, heard before Lord Eldon on 18 March 1805, Richards as counsel for the Bishop changed tactics. Sir William Grant MR had held that legal charity was narrower than charity in common speech. Richards argued contra that the traditional list of legally-valid charities was very wide, and indeed often outstripped any common usage of the word charity; for example, the Statute of Elizabeth included repair of bridges and ports. Moreover, relief money paid to the poor was clearly charitable at law even though in effect it simply alleviated the tax burden of ratepayers who had a legal duty to pay the poor’s subsistence; one could rephrase this point to say that paying for an existing public duty to be performed was not a shift of wealth to the needy but was more in the nature of a negotiorum gestio performed to benefit the public or a large part thereof. This suggested that charity could mean just about any liberal spending that added 90 The tying of Chancery control to the Statute was the main aspect of Morice noted by Spence (n 10) I, 591, but Spence adduced cases supporting an intrinsic power to decide charitable purposes in the Court of Chancery concurrent with and separate to the Statute, implicitly contradicting Grant MR’s holding (eg Bailiff of Burford v Lenthall (1743) 2 Atk 553, 552; 26 ER 731, 733, per Lord Hardwicke C: ‘But courts of equity have in all cases done it, not from any authority, but from conscience’, referring to Charitable Corporation v Sutton (1742) 2 Atk 400, 26 ER 642; Attorney-General v Ironmongers’ Company (1834) 2 My & K 576, 581; 39 ER 1064, 1066, per Leach MR: ‘The jurisdiction of Courts of Equity with respect to charitable bequests is derived from their authority to carry into execution the trusts of any will or other instrument, and the Court is to proceed according to the intention expressed in the will or instrument’). Lord Eldon C may have seen this jurisdiction as controlling the exercise of powers rather than determining their boundaries, eg Ex parte Kirkby Ravensworth Hospital (1808) 15 Ves Jun 305, 314; 33 ER 770, 773: ‘[W]here the governors or visitors are themselves trustees; or are making a fraudulent use of such powers as they have as visitors or governors: yet it is clear, that in such cases the Court of Chancery has jurisdiction by way of information’. Cf L Shelford, Practical Treatise on the Law of Mortmain and Charitable Uses and Trusts (London, Sweet, 1836) 59, 83, 666–67. 91 (1804) 9 Ves Jun 399, 406; 32 ER 656, 659.

190 Joshua Getzler to the public benefit in any way. Richards could here draw on the stream of decisions giving an expansive view of charity as public benefit for the purposes of restricting charitable gifts under the 1736 Charitable Uses Act. The Cracherode bequest could draw on that jurisprudence safely, because it was a gift purely of personalty and was not within the remit of the Act’s prohibitions which aimed at transfers of realty. Richards also added a novel argument that he had pointedly not raised before the Master of the Rolls. He suggested that the Bishop could after all be seen as absolute owner of the residue, with a discretion to distribute governed by mere words of precation. If the objects of the trust of residue were undefined so to prevent the residuary distributing under a mandatory trust, the bequest would fail as a trust and the residuary might take absolutely. This meant that the doctrine of Bishop of Cloyne, presuming against benefit of residue to the executor, had to be confronted and neutralised. Richards argued that the large provision which had been made separately for Morice might reverse the presumption that any further residue under the estate should pass to the heirs; it should stay with the executor, who would now be subject to a precatory obligation in place of the failed mandatory trust instruction. Barrington’s disavowal of personal interest could be seen simply as a strong indication that he took the precatory obligations seriously as a man of honour. His disavowal did not amount to a rejection of the residual estate in right of full ownership; it was rather an extralegal promise to carry out the testatrix’s precations. The Attorney-General added to this the argument that the court could well supervise the trust to ensure a valid charitable disposition. The example was given of a gift to a Catholic confessor; a court could ensure that the money would not be spent on superstitious purposes invalidated at law, such as private masses, but could steer the priest toward valid charitable spending. Moreover, there was case law allowing severance of properly non-charitable heads from valid ones.92 Romilly for the plaintiffs in reply urged that a trust for ‘vague and indefinite’ objects must result back to the next-of-kin. Lord Eldon interjected to affirm that Bishop of Cloyne v Young stood for the proposition that a declaration of trust without proper specification of the objects was now presumed to give rise to a resulting trust for the next of kin, ie it did not leave an allocated residue that could be appropriated by the executor. Eldon also raised the case of Pierson v Garnet93 (which Eldon himself had argued 92

Citing Attorney-General v Doyley (1735) 4 Vin 485; 2 Eq Cas Ab 194, 22 ER 167. (1786–87) 2 Bro CC 38, 226; 29 ER 20, 126. There had been long debate in earlier cases over the status of precatory or informal trusts: see Eales v England (1702) Precedents in Chancery 200, 24 ER 96; Harding v Glyn (1739) 1 Atk 469, 26 ER 299. In the year before Morice went to court, Lord Eldon C went out of his way to affirm Pierson from the bench, distancing himself from his earlier doubts and hostility to the case: Brown v Higgs (1803) 8 Ves Jun 573, 574; 32 ER 473, 479. Long after Morice had been decided, Lord Eldon 93

Morice v Bishop of Durham 191 unsuccessfully as junior to Ambler before Kenyon MR and Lord Thurlow). He suggested that this authority went still further to hold that any testamentary language suggesting that a reception of property was made for the purpose of transmission to heirs was creative of fiduciary duties to account for the property and carry out the conveyance, even absent the traditional language of trust. In other words, the courts would be chary of finding that such informally-expressed testaments created precatory obligations only. Romilly picked up on Eldon’s line of thought and developed it. The Roman law on creating a fideicommissum was invoked to support the view that in all cases where any donative intention could be inferred in the testamentary transfer of property to an intermediary, the property goes into trust and becomes unavailable to the trustee as executor, unless there was strong evidence that he was to be in the beneficial class.94 Having done all this work to rebut the possibility of a mere precatory obligation, Romilly then argued against a finding of mandatory charitable trust. He acknowledged that the word ‘charity’ could connote almost any virtuous act in common language; and conversely that the law could find a charitable intent in the absence of any use of the word ‘charity’ or ‘charitable’. In the present case, however, the will trust had used the words ‘liberality’ and ‘benevolence’ in such a way as must expand the purpose of the trust beyond the bounds of charity. Here Romilly brought some interesting evidence from Cicero’s De Officiis, where one particular classification of civic virtues ran thus:95 Of this again there are two divisions—justice, in which is the crowning glory of the virtues and on the basis of which men are called ‘good men’; and, close akin to justice, charity, which may also be called benevolence (kindness) or liberality (generosity) [quam eandem vel benignitatem vel liberalitatem appellari licet].

Cicero goes on to show how benevolence and liberality can each work injustice, as where they lead to flattery of the object or partiality between C reaffirmed this principle in Ommanney v Butcher (1823) Turn & R 260, 37 ER 1098. For cases to the contrary, finding that precatory trusts were imperfect or voluntary only, see Meredith v Heneage (1824) 1 Simons 542, 57 ER 681; and Lomax v Ripley (1855) 3 Smale & G 48, 65 ER 558, where, however, the precatory intentions may have been tacit between the parties and never declared. The objective test for finding a binding declaration of trust has recently been affirmed in Byrnes v Kendle [2011] HCA 26, esp at [98]–[118] per Heydon and Crennan JJ. 94 D.30.1.1.1 (Ulpian) (‘Legacies are held to be equal to fideicommissa in all respects’); D.30.1.115 (Ulpian) (‘Even an expression such as “I want you to give”, “I desire you to give”, “I believe you will give”, is a fideicommissum’); D.30.1.118 (Neratius) (‘A fideicommissum left in terms such as “I require”, “I desire that you give” is valid, and even if worded “I wish my inheritance to be Titius’s”, I know that you will remit my inheritance to Titius’) (trs from A Watson (ed), Digest of Justinian (Philadelphia, University of Pennsylvania Press, 1985)). 95 (1805) 10 Ves Jun 522, 529–30; 32 ER 947, 950. I have used the translation of De Officiis by W Miller (Cambridge, Mass, Harvard University Press, 1913) 1.7. Romilly gives this passage as 1.8.

192 Joshua Getzler persons. Another suspect version of liberality is prodigality, for example providing gross entertainments or bribes to the populace, though Cicero concedes that bread and circuses had their place in regulating relationships between the orders in the Rome of his day.96 Romilly concluded these reflections by invoking the moral authority of William Paley, who classifies the species of charity and then contrasts these with ‘liberality, which is not charity in any sense of the word’:97 I mean the giving of entertainments or liquor for the sake of popularity: or the rewarding, treating, and maintaining, the companions of our diversions as hunters, shooters, fishers, and the like. I do not say, that this is criminal I only say that it is not charity; and that we are not to suppose, because, we give, and give to the poor, that it will stand in the place, or supersede the obligation, of more meritorious and disinterested bounty.

Romilly concluded that since liberality was capable of such a wide array of meanings, ‘for that very reason the Court cannot compel the executor to perform the trust; or ascertain, when there is a breach’. A trustee might spend on liberal but non-charitable objects, such as putting on picture exhibitions, horse races, or promoting inquiry into ‘the interior of Africa to contribute to raise the degraded state of society in that part of the world’; clearly none of these objects brought charitable public benefit! The objects had to be capable of regulation by law, for ‘though an improper application by the Bishop cannot be supposed, there can be no security against the disposition of the heir’. Romilly concluded by offering a four-way template of the heads of charity, which adumbrates the classical definition produced by the House of Lords in 1891:98 There are four objects, within one of which all charity, to be administered in this Court, must fall: 1st, relief of the indigent; in various ways: money: provisions: education: medical assistance &c.: 2dly, the advancement of learning: 3dly, the advancement of religion; and, 4thly, which is the most difficult, the advancement of objects of general public utility.99

Romilly then gave instances where the court had restrained odd and vague bequests as not capable of being fitted within the fourth omnibus head of public benefit. The Cracherode bequest was so wide that the court 96

De Officiis (n 95) 2.16. W Paley, Principles of Moral and Political Philosophy (London, Faulder, 1785) I, 256, cited at (1805) 10 Ves Jun 522, 530; 32 ER 947, 950. There was a certain irony in having the ideas of Paley, a client of Barrington’s, used in the argument against the Bishop. In a further twist, Paley died a few weeks after the case. 98 Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, 583, per Lord Macnaghten. In Inland Revenue Commissioners v Baddeley [1955] AC 572, 607, Lord Reid suggests ‘that Lord Macnaghten took his classification from the argument of Sir Samuel Romilly in Morice v Bishop of Durham’. 99 (1805) 10 Ves Jun 522, 530–2; 32 ER 947, 950–1, for all quotations in the above paragraph. 97

Morice v Bishop of Durham 193 could not ensure that it would be applied within the four established heads; ‘benevolent’ appointments might be within the confines of charity but might result in ‘prodigality’. Lord Eldon clearly listened carefully to this part of the argument, for in his notebook100 we find these entries towards the close of the day’s hearing: 4 Objects within which all Charity falls: 1. 2. [3.] 4.

relieving the Indigent advanc[ement]t of learning advanc[ement]t of religion advancing Objects of gen[era]l further Charity.101

Could a Trustee draw the line between when Charity ends and when Prodigality begins?102 Charity has got a fixed Sense in the Court. Benevolence has not.103

One senses that this is the moment when Romilly won the case for Morice, along the way developing a legal definition of charity that survived to the end of the twentieth century. Lord Eldon began his judgment rather surprisingly by turning the three certainties requirements for valid private trusts into an argument that perhaps no trust at all was present, and so the Bishop might be seen as taking absolutely:104 Prima facie an absolute interest was given; and the question was, whether precatory, not mandatory, words imposed a trust upon that person; and the Court has said, before those words of request or accommodation create a trust, it must be shewn, that the object and the subject are certain; and it is not immaterial to this case, that it must be shewn, that the objects are certain. If neither the objects nor the subject are certain, then the recommendation or request does not create a trust; for of necessity the alleged trustee is to execute the trust; and the property being so uncertain and indefinite, it may be conceived, the testator meant to leave it entirely to the will and pleasure of the legatee, whether he would take upon himself that, which is technically called a trust.

Pierson and the other earlier cases that characterised an informallyexpressed intention into an intention to benefit via a trust were not germane here, as the bequests in those cases had involved a vague dispositive intention but certain object and subject. In Morice there may have been language of trust intention but no clear objects, so perhaps no trust duties ever arose.

100 Lord Eldon, Judicial Notebook 1804–05, MS, Georgetown Law Library Special Collection. 101 Ibid at 103. 102 Ibid at 103a. 103 Ibid at 105a. 104 (1805) 10 Ves Jun 522, 536; 32 ER 947, 952.

194 Joshua Getzler Uncertainty of object or subject ‘are always used by the Court as evidence, that the mind of the testator was not to create a trust; and the difficulty, that would be imposed upon the Court to say, what should be so applied, or to what objects, has been the foundation of the argument, that no trust was intended’.105 Having raised this possibility as a counter-factual, Lord Eldon then put aside the argument on the basis that the will had so clearly left the residue to the Bishop on trust, that there could be no doubt he was accountable as trustee. He gave the analogy of a settlement on trust with instructions as to objects to be given to the trustee later by the settlor. This would initially create a resulting trust in favour of the settlor, subject to a shift of the beneficial interest to a later identified object, or also the creation of a power to appoint later to those objects once clearer instructions had been given. Lord Eldon was here referencing old and well-established testamentary practices of landowners whereby property would be settled on trustees inter vivos and instructions for distribution then appended by a will communicated at death. Such two-step testamentary devices had sometimes erupted into controversy, with challenges to the efficacy of ambulatory instructions or conditions added after creation of the trust; but the practice was deeply rooted.106 It therefore made good sense to state that a recipient of testamentary trust property who did not at the time of will execution or a later time up to death receive sound instructions as to objects, must hold on resulting trust for the heirs at law. Lord Eldon expressly put aside from consideration the Bishop of Durham’s disavowal of personal interest and the confidence the court might have that he would as absolute owner have carried out the precatory will of the testatrix impeccably as an upstanding and honourable man: ‘I must look only to the Will, without any bias from the nature of the disposition, or the temper and quality of the person, who is to execute the trust.’107 Lord Eldon next addressed the possibility of a proportionate division, converting half the residue under the ‘benevolent’ object to charity and letting the ‘liberal’ part result back. He rejected this solution since there was no clear authority to support it. The case of Attorney-General v Doyley108 involved a distribution to be made to ‘deserving’ maternal relations; since ‘deserving’ lacked certain meaning the court simply ordered an equal distribution to the maternal relations, who were sufficiently identified. No such perfection of the terms of the Cracherode bequest was possible. 105 Ibid, 536–37; 952–53. This statement is the main idea from Morice extracted in Lewin (n 10) 79; the requirement of certainty of objects is also mentioned at 175. 106 See eg Earl of Pembroke’s Case (1379) Rot Parl 60–61; Re Lord Dacre of the South (1535) in JH Baker, Baker and Milsom’s Sources of English Legal History, 2nd edn (Oxford, OUP, 2010) 127–32. 107 (1805) 10 Ves Jun 522, 537; 32 ER 947, 953. 108 Attorney-General v Doyley (1735) 4 Vin 485; 2 Eq Cas Ab 194, 22 ER 167, also debated at length in Moggridge v Thackwell (1802) 7 Ves Jun 36, 32 ER 15.

Morice v Bishop of Durham 195 Lord Eldon then addressed the case of Brown v Yeall, the case of an inept bequest of religious books where the mode of distribution was left absurdly vague. He indicated that he thought there was sufficiently clear charitable intent squarely in the heart of religious and educational purpose to have supported validity such that a cy-près appointment might have been possible, and he criticised Thurlow’s decision for not striving to save the bequest.109 It was unclear to Eldon why Brown should have failed when the Society for the Propagation of the Gospel, a trust for the circulation of bibles and religious books, should flourish as a charity. Perhaps here Lord Eldon was teasing the plaintiff Morice, who of course was Secretary of that Society. But Brown nonetheless stood as good authority for the principle that the court must be able practically to enforce the trust. Summarising this discussion of the authorities, Lord Eldon made the following key statement, often cited as the ratio of his judgment:110 As it is a maxim, that the execution of a trust shall be under the controul of the Court, it must be of such a nature, that it can be under that controul; so that the administration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust: a trust therefore, which, in case of mal-administration could be reformed; and a due administration directed; and then, unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided, that the Court can neither reform mal-administration, nor direct a due administration.

Where a trust was charitable, the court or the Crown could control the execution by reference to those objects authorised by the preamble to the Statute of Elizabeth, ‘or to purposes having analogy to those’. Objects were recognised as ‘charitable’ in the Court of Chancery not because they could properly be described as charitable, but simply because they were so denominated by the Statute. The problem the court faced in the present case was that the Bishop was authorised to apply the residue to ‘benevolent’ and ‘liberal’ objects that might or might not stand within the legal meaning of charity, and the court had no means to uphold the bequest and yet control the expenditure within the positive bounds of charity. ‘There is no magic in words,’ and the court was not to engage in a critical examination of the sense of ‘charity’, ‘benevolence’ and ‘liberality’ in Christian or classical cultures; rather the court was simply to look at the terms of the will to decide whether the testatrix ‘meant to repose in the Bishop a discretion, not to apply the property for his own benefit, but that would enable him to apply it to purposes more indefinite than those … sufficiently defined to be controlled and managed by this Court’. Since those indefinite purposes 109 In Baker v Sutton (1836) 1 Keen 224, 232–33; 48 ER 292, 295, Lord Langdale MR held that Lord Eldon had in effect overruled Brown to hold that support for religion was presumptively charitable. 110 (1805) 10 Ves Jun 522, 539–40; 32 ER 947, 954.

196 Joshua Getzler went beyond charity and so failed, and since the Bishop was directed to take on trust not for himself, he must hold the residue to such objects ‘as the Law will dispose of it’, which meant on resulting trust back to the heirs of the estate.111 Lord Eldon’s decision had a legislative quality, making a policy decision that charitable objects should be derived from the preamble to the 1601 Statute and so surrendering any court discretion to decide whether an object has sufficient public benefit and clarity to warrant enforcement. Why did he decide so? He had taken his lead from Sir William Grant’s judgment, but he went into far greater detail in explaining why the court should limit itself in allowing trusts for vague public benefit. Clues may be gleaned from the careful notes he took throughout the hearing, dated 18 March 1805, some of which we have already seen.112 These notes are independently interesting as they exhibit Eldon’s intellectual method during Chancery hearings. Eldon begins in his notes by observing that the trust was ‘not void’; that it was ‘good against the next of kin, if not good to a Charity’ if it enabled the Bishop ‘to execute purposes of a benevolent and liberal Nature’. So he had quickly decided that there was a trust, meaning that of the four possible destinations for the residue—Bishop, next-of-kin, charity on cy-près, or wide benevolent purposes—it could not be the first. Then comes the startling note: ‘The B[isho]p … has already bestowed considerable part of this.’ So on losing the case, Barrington would have been subject to an account to restore any distributed residue and so perform the resulting trust as required.113 Eldon then writes:114 Stat. Eliz.—speaks of Objects not Charity within the ordinary meaning of the word. Benevolent and Liberal Objects include charitable Objects, but charitable may not include benevolent but liberal objects. The Law does not therefore use the word Charity in the ordinary way.

The enforcement issue quickly surfaced: ‘Bishop must be compellable to distribute, if it is a good disposition he may select, but he must select among Objects.’ It is then hinted that the whole case might have gone the other way if ‘liberality’ had not been used in the objects: Benevolence is Charity. If Benevolence had been the only word used the b[e]q[ues]t would have been good. The word Charity need not be added … Benevolence explains charity.115

111

Ibid, 542–43; 955, for all quotations in the above paragraph. Lord Eldon, Judicial Notebook 1804–05, MS, Georgetown Law Library Special Collection. 113 Ibid at 99. 114 Ibid. 115 Ibid at 99a. 112

Morice v Bishop of Durham 197 The question then discussed is whether the objects might be interpreted ejusdem generis so that benevolence ‘which comes first’ might be assimilated to an implicit charitable intent and capture ‘liberality’ within its own confines of meaning.116 ‘If they mean distinct Things—Court has its Choice…’ Eldon then gave an example clearly drawn from the notorious cy-près case of Da Costa v De Paz: ‘Suppose it given to Foundling Hospital & Jewish Synagogue?’ Eldon then ruminated whether the case of Pierson v Garnet (which as counsel he had lost) always required that vague testamentary language desiring a distribution had to be read as making a trust: ‘Suppose in that Case Pierson was Trustee if it turned on Quantum ascertained, but the unascertained Objects were benevolent purposes.’117 The next issue addressed was the forensic search for the testatrix’s intentions: ‘What would any Lady out of Court say those Words mean?’118 The Attorney-General held that a concrete assessment of Cracherode’s intent was possible:119 ‘This is a bequest substantially to Charity—no such uncertainty in the Object as shall defeat it. The Words are expressive of achievable purposes in Testator’s Mind.’ The Attorney reasserted the privilege of charity to be carried forward by a court even if imperfectly expressed: ‘Charity a more favoured legator than any other’.120 An interesting example was then given to show that subjective intent might not control the meaning of stated objects at law, building on arguments of counsel:121 ‘Suppose a Roman Catholic was to give to his Confessor his residue for such Charitable purposes as that Confessor should appoint. The Object in the Mind of the Testator might be improper purposes. The Court can’t hold that.’ Eldon then rehearsed the arguments over proportional and equal splits when obnoxious or indefinite tests for distribution were excised from dispositions. After hearing counsel expound classical and philosophical theories of benevolence Eldon wrote: ‘I can’t define in words Liberality & Benevolence. They are too large. Court can’t execute for that reason.’122 This suggests reasons why Eldon finally cleaved to the Statute of Elizabeth as the sole guide to definition of charity; perhaps positivistic definition was the only secure anchor in a politicised and contested field; philology and philosophy were too at large to help. He also rejected the idea that it might ‘depend upon the Person what are Objects of Liberality & Benevolence’; the idea that a subjective knowledge of the field to be surveyed could give certainty 116 Just such a reinterpretation of Morice based on ejusdem generis was offered in Re Sutton, Stone v Attorney-General (1885) LR 28 Ch D 464. 117 Lord Eldon (n 112) at 99a–100. 118 Ibid at 100a. 119 Ibid. 120 Ibid at 101. 121 Ibid. 122 Ibid at 101a.

198 Joshua Getzler to indefinite objects conflicted with the decision in Moggridge.123 We have already seen his positive reaction to counsel’s setting out of four heads encompassing the possibilities of charity. So Lord Eldon affirmed the decree on 20 March 1805, ‘thinking the Trust too general’, but that the ‘Bishop was a Trustee’ and hence could not keep the property.124 The residue therefore went to the heirs at law. The vice in the bequest was in its technique, not its content. Ann Cracherode could have given her wealth away to such objects as she desired in her own lifetime; she could have left it by will to the Bishop absolutely, in the hope he would use it well; but she could not harness trust law to make a disposition conditioned by vague instructions and exceeding the bounds of charity.

G. THE INFLUENCE AND SIGNIFICANCE OF MORICE

This is not the place to begin a full-scale discussion of the influence of Morice on later law. Nonetheless, we can make a preliminary foray to conclude. The first case to examine the ratio of Morice was Doe d Toone v Copestake, decided by Lord Ellenborough in May 1805.125 He side-stepped the thrust of the case by asserting that a gift on trust to the officials from time to time of a Methodist congregation to spend as they thought fit created a general power for them to apply the wealth as they wished, and hence was not a charitable bequest colliding with the 1736 mortmain statute or with the doctrine of Morice. This was a perfect example of how denying the existence of a charitable use, and so pushing a gift outside the law, was the pragmatic method to save the gift:126 This is nothing like a devise to charitable uses. The trustees may apply the estate to any use they think fit. The will of the testator does not aim at confining them to apply it to charitable uses. If I were to guess at his meaning, I should rather suppose that be meant them to apply it to superstitious and fanatical uses: it is left to their caprice: and unless we can say that it is a devise to charitable uses, it is not within the [1736] statute. The case recently decided by the Master of the Rolls is stronger than this.

In later cases Sir William Grant MR saw the finding of mandatory trust in cases of charitable giving as lying at the heart of the ruling in Morice.127 In James v Allen (1817) he explained why the particular bequest had failed

123

Ibid at 103. Ibid at 110a. 125 Doe d Toone v Copestake 6 East 328; 102 ER 1313. 126 Ibid, 332; 1314. The tension with Morice is noted in Highmore (n 10) 94, 132. 127 Gibbs v Rumsey (1813) 2 Ves and Bea 294, 35 ER 331; to same effect, Vezey v Jamson (1822) 1 Simons & Stuart 69, 57 ER 27, per Sir John Leach V-C. 124

Morice v Bishop of Durham 199 in Morice: it was not simply the word ‘liberality’ in the objects of the will in Morice that proved fatal; a will requiring distribution to ‘benevolent’ objects was also bad, for ‘[i]f it might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute’.128 The arguments confining charitable purposes as contained in Lord Eldon’s judgment were adopted extensively in numerous cases, perhaps most notably and influentially in Page-Wood V-C’s judgment in Thomson v Shakespeare in 1859, which prevented a trust for a monument to the memory of the testator’s namesake taking effect as a charity.129 By 1896 Lindley LJ was celebrating Lord Eldon’s judgment in Morice as ‘the leading case … one of the most important upon all questions of charities’.130 The apotheosis came in 1899 when Lord Davey in the House of Lords treated Morice as the fountainhead for the modern doctrine of valid charitable trusts;131 and it was again so treated in the Lords in 1944 in the Diplock litigation.132 But the nagging policy issues that lurked within Morice, notably the attempt to distinguish charity proper and benevolence or public benefit through reference to historical rules only, were not stably resolved. Two problems could not be dispelled, namely, whether the recognised heads of charity (religion, education, relief of poverty) were subject to a supervening public benefit requirement;133 and whether the catch-all fourth head of general public benefit was capable of embracing fresh activities outside the traditional categories, such as communal recreation and political action.134 The courts felt they could not expand the heads of charity to keep abreast of changing social conditions, because judges lacked the constitutional legitimacy to expand the fiscal privileges that accompanied charitable status.135 The question then became—could they get past Morice

128 James v Allen (1817) 3 Mer 17, 19; 36 ER 7, 8, followed in Ellis v Selby (1836) 1 My & Cr 286; 40 ER 384, per Lord Cottenham C. 129 Thomson v Shakespeare (1859) Johnson 612, 70 ER 564, affd (1860) 1 De GF & J 399, 45 ER 413, and approved in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, 544, per Lord Halsbury C. For other applications of Morice, see Nightingale v Goulbourn (1848) 2 Ph 594, 41 ER 1072; Briggs v Penny (1849) 3 De G & Sm 525, 64 ER 590; Whicker v Hume (1851) 14 Beav 509, 51 ER 381; Beaumont v Oliveira (1868–69), LR 6 Eq 53, LR 4 Ch 31; In re Douglas (1887) LR 35 Ch D 472 (CA); Commissioners for Special Purposes of Income Tax v Pemsel (1889) LR 22 QBD 296 (CA). In total I have found over 200 cases to date that cite Morice in the English courts alone. 130 In re Macduff [1896] 2 Ch 451, 463 (CA). 131 In re Hunter, Hunter v Attorney-General [1899] AC 309, 323–24 (HL). 132 Chichester Diocesan Fund v Simpson [1944] AC 341, 358, per Lord Wright. 133 Gilmour v Coats [1949] AC 426; Leahy v A-G for New South Wales [1959] AC 457 (PC); M Harding, ‘Trusts for Religious Purposes and the Question of Public Benefit’ (2008) 71 MLR 159. 134 Eg Re Astor’s Settlement Trusts [1952] Ch 534; IRC v Baddeley [1955] AC 572; Bowman v Secular Society [1917] AC 406; cf Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539. 135 See, eg, Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, 563, esp 566 per Lord Bramwell (dissenting).

200 Joshua Getzler and invent non-charitable purpose trusts as a solution bringing none of the fiscal and administrative difficulties of charities? There were a number of exits from this impasse, and all were tried. One was simply to use unincorporated associations as a mixed contract-trust solution that could do the work of a purpose trust perfectly adequately; but these devices were multipartite and cumbersome, and might collide with partnership and company law. Another approach was to allow an uncertain class of persons to benefit from a non-charitable purpose trust, provided palpable benefit was brought to an identifiable core of that class.136 Another was to build upon the institution of the discretionary trust and relax the requirements of certainty for the class of potential objects; the court would no longer presume to identify a closed list of persons who could demand their share of trust property or directly enforce due execution of the trust; limited controls by the court at the suit of interested parties might still suffice, provided the court could supervise trust powers and discretions in some wise and remove errant trustees who misperformed. This solution emerged from pension cases.137 Yet another was to tolerate and expand the anomalous purpose trusts; or to promote trusts of imperfect obligation that could start to deliver some of the insolvency protection and managerial advantages of normal trusts.138 The uniting feature of these solutions was to move away from a correlative set of rights and duties tightly binding trustees and beneficiaries, and instead see the trust as a network of obligations, vesting powers of monitoring, control, enforcement and enjoyment in different groups of individuals. The first limb of Morice—that there be certain beneficiaries who alone can ask the court to decree performance in their favour—is thereby quietly jettisoned and the trust evolves out of

136 Re Denley’s Trust Deed [1969] 1 Ch 373. Goff J worried in his judgment that he was abandoning the Morice principle that the court should be able to control the trust (at 387–88). 137 Notably McPhail v Doulton [1971] AC 424. See JW Harris, ‘Trust, Power and Duty’ (1971) 87 LQR 31. Also important were In re Manisty’s Settlement [1974] Ch 17, 27–28, per Templeman J; Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587, 1617–18, per Warner J; and Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 (PC). 138 LH Leigh, ‘Trusts of Imperfect Obligation’ (1955) 18 MLR 120; L McKay, ‘Trusts for Purposes—Another View’ (1973) 37 Conv 420; NP Gravells, ‘Public Purpose Trusts’ (1977) 40 MLR 397; M Pawloski and J Summers, ‘Private Purpose Trusts: A Reform Proposal’ [2007] Conv 440. Advocacy for non-charitable purpose trusts as a type of public law institution is developed by P Baxendale-Walker, Purpose Trusts (London, Butterworths, 1999), criticised by J Penner in (2000) 14 Trust Law International 118. Following Lord Millett’s speech in Twinsectra Limited v Yardley [2002] 2 AC 164, esp [76], Quistclose trusts have controversially been characterised as private purpose trusts, eg Cooper v PRG Powerhouse Ltd [2008] EWHC 498 (Ch) per Evans-Lombe J at [12]–[24]. Debate over the fiduciary or contractual quality of purpose-impressed loans continues, see WJ Swadling (ed), The Quistclose Trust: Critical Essays (Oxford, Hart Publishing, 2004) chs 2–6; JA Glister, ‘The Nature of Quistclose Trusts: Classification and Reconciliation’ (2004) 63 CLJ 632.

Morice v Bishop of Durham 201 the form set for it in the early nineteenth century and develops a novel twenty-first-century guise.139 The counter-argument is that the classical beneficiary principle of Morice, requiring definite equitable claimants of trust property with standing to sue, has become more, not less, valuable in controlling equitable property in the modern world.140 A trust law allowing any range of obligations to be impressed on property without identifiable owner-enforcers could let in fanciful and complex rights that have the potential to destabilise insolvency priorities, stoke speculation as legal complexity masks and expands risk, and invite the creation of new-fangled perpetuities and restraints on alienation. This has already happened.141 The Morice ruling, born of a squabble over an inheritance between two high churchmen at the time of the Napoleonic wars, provided basic principles that proved their value in controlling the law of trusts over the next two centuries. It is a jurisprudential inheritance that has proved its worth, and should be passed on intact to future generations to ensure that they too enjoy a secure and workable system of trust law.

139 DJ Hayton, ‘Developing the Obligation Characteristic of Trusts’ (2001) 117 LQR 96 is the leading advocate of this new approach. See also P Parkinson, ‘Reconceptualising the Express Trust’ (2002) 61 CLJ 657; D Waters, ‘The Protector: New Wine in Old Bottles?’ in AJ Oakley (ed), Trends in Contemporary Trust Law (Oxford, OUP, 1996) 114. 140 Justifications for maintaining the beneficiary principle in a cross-jurisdictional world are given by Matthews (n 6), precursed by P Matthews, ‘The New Trusts—Obligations Without Rights?’, in Oakley (ed) (n 139) 1. 141 See Getzler (n 88); LW Waggoner, ‘US Perpetual Trusts’ (2011) 127 LQR 423.

7 Tulk v Moxhay (1848) BEN MCFARLANE*

A. INTRODUCTION

T

ULK V MOXHAY1 is a landmark case in more than one sense. The land to which it relates, in London’s Leicester Square, is well-known both to London residents and tourists visiting the capital. The case itself is, of course, familiar to practitioners, and is one of the very few equity or land law cases that students can unfailingly recall. It is regularly cited across the common law world, and has been used to justify injunctions against the display of lions in Paddington in 18882 and against the opening of a wedding chapel in Tennessee in 2008.3 However, just as Leicester Square itself has changed markedly since the mid-nineteenth century, so has our understanding of the case. The significance of Lord Cottenham’s decision is now said to consist in its foundational role in the law of restrictive covenants—it is seen as having ‘invented a new interest in land’.4 It is true that, just as the decision played a role in shaping the Leicester Square that we know today, so did it have a part in shaping the rules currently applying to restrictive covenants. This chapter will look at the impact of Tulk both on the Soho scene and on the legal landscape—asking, in particular, what the decision can tell us about the law of restrictive covenants and, more importantly, about the nature of equity and of equitable property rights. More than 160 years after the decision, a lawyer coming to Tulk is in a similar position to a tourist arriving at Leicester Square: he may feel he is at an important landmark, but

*

I am grateful to Christopher Knowles for his helpful research assistance. The ‘official’ report of the decision of Lord Cottenham LC is that of Phillips: (1848) 2 Ph 774, 41 ER 1143. A longer, but less coherent, version of Lord Cottenham’s decision is contained in the Hall and Twell reports: (1848) 1 Ha & Tw 105, 47 ER 1435. The decision is also reported at (1848) 18 LJ Ch 83. 2 Hall v Ewin (1888) LR 37 Ch D 74. 3 Gambrell v Nivens 275 SW 3d 529 (2008). 4 See eg C Harpum et al (eds), Megarry & Wade’s Law of Real Property, 7th edn (London, Sweet & Maxwell, 2008) 32-033. 1

204 Ben McFarlane may be less sure as to why it is important. The usefulness of Tulk is perhaps similar to the usefulness of the garden in Leicester Square to those tourists: it provides a pause for reflection and a chance to orientate ourselves by reference to other landmarks of which we are more sure. Equally, however, inattentive tourists may find their time in Leicester Square to be costly; and those examining the nature of equitable property rights must also be on their guard when considering Tulk. Whilst a number of valuable legal lessons can be learned from the decision, Tulk v Moxhay is one of those landmarks that is useful precisely because, if you end up there, you know have, in some respects at least, gone wrong.

B. THE BACKGROUND

(1) The Factual Background Lord Cottenham’s decision, dismissing Edward Moxhay’s motion to dissolve an injunction granted in favour of Charles Augustus Tulk, was far from the first decision concerning the use of land in the area now known as Leicester Square. The history of the land is very usefully set out in chapter XVII of volumes 33 and 34 of the Survey of London,5 to which the factual parts of this chapter are heavily indebted. The current name of the land ultimately derives from the 1630 purchase by Robert Sidney, the Second Earl of Leicester, of four acres of St Martin’s Field, at a price of £160. In a nicely proleptic twist, neighbouring residents had sought to prevent the Earl from building on the land—parishioners of St Martin’s argued that this would interfere with the various rights they had in relation to the land, including the right to dry clothes there. The dispute was referred to the Privy Council, and it was decided that the intended mansion could be built on the northern half of the land, but on two conditions: first, the Earl had to pay an annual sum to the Parish by way of compensation; secondly, the southern part of the land (thereafter known as Leicester Field) was to be6 turned into Walkes and planted with trees along the walkes, and fitt spaces left for the Inhabitantes to drye their Clothes there as they were wont, and to have free use of the place, but not to depasture it, and all the foote ways through that Close to bee used as now they are.

As a result, Leicester House was completed, on the north side of what is now Leicester Square, in 1635. 5 ‘Leicester Square Area: Leicester Estate’, in F Sheppard (ed), Survey of London, Volumes 33 and 34: St Anne Soho (London, University of London, 1966). Available online at (accessed 17 August 2011). 6 PRO, SP16/181, no 27. References for the further material discussed in this section are available in ch XVII of vols 33 and 34 of the Survey of London (n 5).

Tulk v Moxhay 205 The restrictions on the use of Leicester Field were removed, it seems, when, in 1670, Charles II granted the Earl a building licence relating both to the Field and some adjacent land also purchased by the Earl. The plan on which the licence was based envisaged a square central garden, surrounded on each side by houses built in a uniform style. In the building leases granted by the Earl, the form of each house was precisely set out and it was specified that, in the absence of permission from the Earl, no shop could be made fronting the Square. Further, posts and rails were to be set up to enclose the central garden, in which the builders agreed to plant ‘young trees of Elm’. The garden was, it seems, open to the public. In 1698, it was the scene of an actual, rather than a merely legal, duel, resulting in the death of ‘a pretty young man, Coll. Richard Coote’s son of Ireland’.7 An engraving of around 1727, by Sutton Nicholls, shows a symmetrical garden, with carefully placed trees, surrounded by a wall and railings—it is reminiscent of a smaller-scale Place des Vosges. As a result of the control retained by the Earl over the use of the houses, Leicester Square was at the time a largely residential area, pleasant enough for Leicester House to become the home of Frederick, Prince of Wales, from 1728 to his death in 1751. The Survey of London reports that, from the late seventeenth century and throughout the eighteenth century, the residents were drawn largely from ‘wealthy county families’ and included Lord Somers, then Lord Chancellor, and, later on, William Hogarth and Sir Joshua Reynolds.8 Throughout this period, the freehold to the Square and garden remained vested in the Sidney family, who were thus in a position to use rents from the houses to maintain the garden. Indeed, a bold plan to improve the garden ‘after the Manner of Lincoln’s Inn Fields’ was drawn up in 1737, and included the building of a central fountain. This plan was not put into practice,9 but an addition to the garden did occur on 19 November 1748 when, on the occasion of the Prince of Wales’s birthday, an equestrian statute of George I was unveiled. The seventh, and last, Earl of Leicester died in 1743, and his estate passed to Mary and Elizabeth Sidney, the only surviving legitimate heirs of the body of the fourth Earl. On Mary’s death in 1758, a life interest in her half share passed to Anne Howard, with remainder to Anne’s son, Sir George Yonge (MP for Honiton and fifth baronet of Effingham). It was George who initiated the Tulk family’s connection to the Square, when he sold his interest to James Stuart Tulk, a merchant from Tottenham. Elizabeth, meanwhile, died in 1783. Her half share had been very heavily mortgaged, principally to finance her successful, but ultimately ruinous, claim to the Leicester estate.

7

The reference given by the Survey of London (n 5) is as follows: PRO 6, SP32/15, no 156. The Times (8 December 1873) 9 later recalled that ‘Reynolds, in the height of his fame, received a daily levée of beauties at his house on the west side [of Leicester Square].’ 9 A plan referring both to Lincoln’s Inn and a fountain was perhaps always likely to excite controversy. 8

206 Ben McFarlane In 1785, on the application of Elizabeth’s creditors, Lord Thurlow, the Lord Chancellor, ordered a Chancery master to take an account of all the claims on Elizabeth’s estate and, if necessary, sell her share in the land. To facilitate a sale, Elizabeth’s executors sought a partition of the co-owned land, and this was ordered by the Lord Chancellor in 1787. A commission was set up to consider the terms of the partition, and their first meeting, appropriately enough, took place in a pub in Leicester Square. The certificate of partition was confirmed by the Lord Chancellor in January 1789.10 The first James Stuart Tulk had died in 1775, and his half share in the Leicester estate passed to his son (who shared his name) and other family members. On the partition, they received land on the east, south and west sides of the Square. Land on the north side of the Square, including Leicester House, was therefore available to meet Elizabeth’s debts. The Tulk family also received the garden, but subject to the condition that11 the Owners and Proprietors … shall for ever afterwards at their own sole and proper costs and charges keep and maintain the said Square garden or pleasure Ground and the railing round the same in sufficient and proper repair as a Square Garden or pleasure Ground in like manner as the same now is.

The land on the north side of the Square was sold off in 29 lots, the auction having been advertised in the London Gazette of 18 July 1789.12 Of the 16 different purchasers, many were tradesmen, and two years later, Leicester House was demolished to allow for further building. It is clear that the events of 1789 had a revolutionary effect on the character of the Square: as the editors of the Survey of London put it: ‘The division of the Leicester estate … and the subsequent demolition of Leicester House marked the beginning of the social disintegration of the square.’13 For example, some of the land within the footprint of Leicester House was used for entertainment of varying sorts: Barker’s Panorama was built in 1793, and 1809 saw the opening of a needlework gallery. The tradition continues in some form today, as the Leicester House site is now occupied by the Empire cinema. The reduction in the number of residential tenants may have made it more difficult for the Tulk family to subsidise maintenance of the garden through rents: for example, from 1839 to 1851, four houses on the east side of the Square, comprising part of the Tulk lands, stood empty whilst unsuccessful attempts were made to convert them into a theatre. Any lingering chance of reversing this shift was removed in 1843–46, as the opening of New

10 11 12 13

The partition order is available in the National Archives: C 14/1018/ L7. Ibid. The advert itself made no mention of the garden. Survey of London (n 5) vols 33 and 34, ch XVII, 425.

Tulk v Moxhay 207 Coventry Street and the widening of Cranbourn Street caused a significant increase in the traffic through the Square. By the middle of the nineteenth century, the majority of the land on the east, south and west sides of the Square remained in the Tulk family, although it had been subdivided into more than 10 distinct plots. On the death of the younger James Stuart Tulk in 1791, the right to the garden passed to his brother, John Augustus Tulk. In 1807, John Augustus made a settlement in favour of his son, Charles Augustus Tulk, who had just reached the age of 21. The land acquired by Charles included several houses around the Square, as well as the garden. Charles covenanted with his father that he and his heirs and assigns would14 at all times hereafter keep … the piece or parcel of ground in Leicester Square now used as a Garden … in its present form and in an open state uncovered by any buildings upon the same and shall and will keep … the said piece or parcel of ground now used as a Garden in neat and ornamental order.

A year later, Charles, who had studied but never practised law, conveyed the fee simple in the garden to Charles Elms, a dentist living in Leicester Square, for £210. That deed contained the famous covenants:15 And the said Charles Elms, for himself, his heirs, executors, administrators and assigns, doth covenant, promise, and agree to and with the said Charles Augustus Tulk, his heirs, executors, and administrators, in manner following—that is to say, that he, the said Charles Elms, his heirs and assigns, shall and will, from time to time, and at all times for ever hereafter, at his and their own proper costs and charges, keep and maintain the said piece or parcel of ground and square garden, and the iron railing around the same, in its present form, and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, in a neat and ornamental order; and shall not nor will take down, nor permit or suffer to be taken down or defaced, at any time or times hereafter, the equestrian statute now standing or being in the centre of the said garden, but shall and will continue to keep the same in its present situation, as it now is; and also, that it shall be lawful to and for the inhabitants of Leicester Square aforesaid, tenants of the said Charles Augustus Tulk, and of John Augustus Tulk Esq, his father, their heirs and assigns, as well as the said Charles Augustus Tulk and John Augustus Tulk, their heirs and assigns, on payment of a reasonable rent for the same, to have keys (at their own expense), and the privilege of admission therewith annually, at any time or times, into the said square garden and pleasure ground.

14

Deed of 25 Oct 1807, held at the National Archies: CP 43/899, ff 101–18. This formulation of the covenants is set out in the Hall & Twells report: (1848) 1 Hall & Twells 105, 105–06; 47 ER 1345, 1345. The formulation in the Phillips report is briefer but not materially different: (1848) 2 Ph 774, 775; 41 ER 1143, 1143. 15

208 Ben McFarlane Elms’s legatee left the garden in turn to Robert Barrow,16 who, in 1834, sold it to John Inderwick, a resident of Leicester Square, for £400. Inderwick covenanted on behalf of himself, his heirs, executors, administrators and assigns that he and they would ‘observe, perform and keep all and singular the covenants, conditions and agreements’ in the 1808 release to Elms, and would indemnify Barrow, his heirs, executors and administrators from the performance of the covenants, or any claims or costs relating to them.17 In 1839, Inderwick sold the garden by auction, the particulars of sale ingeniously describing the land as18 [a] very valuable plot of freehold ground, consisting of the extensive pleasuregrounds forming the open plot of the whole of Leicester Square, namely the valuable land lying within the railing, and containing 3926 square yards, or threequarters of an acre and ten perches (be it more or less). There is malheureusement, a covenant which restrains the possessor of the fee simple from building on this grand and unrivalled open space; an Act of Parliament, however, might remedy the difficulty; and it will perhaps be difficult for an enterprising character to withstand the temptation; but the leading feature is the certainty that, in the immense improvements which are in full progress, this square must necessarily be required, or, failing to make suitable terms with the possessor of this valuable land, an extinguisher must, of course, be at once placed upon the ground plan, which is now upon the point of adoption, namely to communicate Covent Garden with Piccadilly, thus opening a grand thoroughfare to the City of London, and giving to Her Majesty a decent and proper line of road when she honour our national theatres with a visit.

The optimistic phrasing of the particulars perhaps calls to mind the modern-day practice of ‘land banking’, whereby shares of ownership of green-belt land are advertised on the basis that current building limitations will one day be lifted.19 It is unclear whether he was personally convinced of the Queen’s need for speedy access to the West End, but Hyam Hyams was the successful bidder at the auction, paying £451. He then assigned his contract to Edward Moxhay. A former shoe-maker and ‘speculative biscuitbaker’,20 Moxhay was now, ominously enough, a builder: in 1830, he had begun work on the Hall of Commerce at 52 Threadneedle Street. It might seem that the protagonists are in place and the stage is now set for Tulk v Moxhay. First, however, a long-running dispute arose as to the terms of the sale of the garden to Moxhay. Inderwick refused to complete

16 His name is given as Robert Barron in the 1873 pleadings in Webb v Tulk and Wyld (in the National Archives: C 16/902/11), but Barrow is the form used by the court in Moxhay v Inderwick (1847) 1 De Gex & Smale 708, 63 ER 1261. 17 Moxhay v Inderwick (1847) 1 De Gex & Smale 708, 710; 63 ER 1261, 1262. 18 Moxhay (n 16) 708, 1261, 1262. 19 A Private Members Bill, The Sale of Green Belt Land Bill, introduced into the House of Commons in 2005, sought to tackle this practice. 20 W Thorndale, Old and New London: Volume 1 (1878), ch XLVI: available online at (accessed 17 August 2011).

Tulk v Moxhay 209 the sale unless Moxhay agreed to be bound by the covenants Inderwick himself had entered into when buying the land. In 1844, Moxhay brought a suit for specific performance, asking for a transfer of the title to the land without the need for any covenants to be made on his part. In 1847, Knight-Bruce V-C held that it was not necessary to decide if ‘any action or suit might be sustained against Mr Moxhay or Mr Inderwick upon the covenant contained in the conveyance to Mr Elms’, but that the contract of sale could not be enforced without protecting the vendor from the consequences of his own contract with Barrow.21 Moxhay therefore had the choice of being released from the contract of purchase, or of forcing a transfer on the basis that he provide a sufficient indemnity to Inderwick in relation to his potential liability under his 1839 covenants with Barrow. In the end, the transfer occurred without any covenants being made by Moxhay—Moxhay paid Barrow’s widow £120 to release Inderwick from the covenants he had made to her husband.22 In return for £571, plus not insignificant legal costs, Moxhay thus acquired a fee simple in the garden without himself having made any promises in relation to the use of the land. Moxhay immediately started to cut down the trees in the Square; Tulk, presumably fearing that Moxhay intended to build on the garden, sought an injunction to prevent Moxhay from cutting down any trees or shrubs, from removing any of the iron railing around the garden, from putting up any building, from taking down or defacing the statute of George I, from committing ‘any waster, spoil, destruction or nuisance’ or from ‘altering the present form of the said piece of ground or garden’. It is worth noting that each of Tulk and Moxhay agreed that the garden was in a ‘foul, neglected and ruinous condition’ and was a ‘most unsightly object and a disgrace and reproach to the neighbourhood’.23 The Survey of London independently confirms that, in the first half of the nineteenth century, the garden was ‘a neglected and dirty place’.24 This was, perhaps, unsurprising: the partition and sale of the Leicester estate had deprived the area of unitary control by a single owner, or small group of co-owners, making its management and maintenance more difficult. As noted above, the character of Leicester Square had changed, with a shift to commercial rather than residential tenants and a large increase in traffic. Further, whilst the 1808 covenants mention the possibility of charging local residents a rent to cover the upkeep of the garden, owners such as Elms and Inderwick had no means of obliging residents to contribute, and so the costs of maintaining 21

Moxhay (n 16). Deed of 2 March 1848. The reference given by the Survey of London (n 5) is GLC, Legal and Parliamentary Dept, D7311. 23 (1848) 11 Beav 571, 573; 50 ER 937, 939. The quotations are from counsel for Moxhay. Counsel for Tulk agreed that the garden was ‘foul and dilapidated’: ibid at 581, 941. 24 The reference given by the Survey of London (n 5) is to the Leicester Square Scrapbook, vol 1, 34. 22

210 Ben McFarlane the garden were almost certain to be disproportionate to any benefit that an individual owner such as Elms or Inderwick might receive. It is most likely that, as the particulars of the 1839 auction sale attest, the attraction of the garden to Elms and his successors in title was the prospect that the restrictive conditions on its use might be lifted by an Act of Parliament, just as the royal licence of 1670 had released the Earl of Leicester from the duty to keep the land available for the drying of clothes. Despite the poor condition of the garden, and the obligation in the 1808 covenant to keep the garden in a ‘neat and ornamental order’, it seems that the ex parte injunction granted against Moxhay in Tulk’s favour, and upheld first by Lord Langdale MR25 and then by Lord Cottenham LC, was purely negative: it prevented Moxhay from (inter alia) cutting down trees and shrubs on the garden, and from erecting any building there, but did not require him to maintain the garden, or to restore it to its previous state.26 It may be that, given the changes in the surrounding area, Tulk himself had little interest in the garden, and planned only to assert a right to stop building, so as to profit from that right by, perhaps, licensing a suitable project.27 It may also be that, due to the decision in Keppell v Bailey,28 to be discussed below, it would have seemed unduly ambitious to ask the court to impose a positive duty on a successor in title.

(2) Legal Background The Third Report of the Commissioners on the Law of Real Property, published in 1832,29 considered that the law relating to the effect of covenants on third parties was ‘defective, or imperfectly settled’30 and that ‘there is considerable difficulty in determining the extent to which the assigns of the covenantor can be charged with the obligation’.31 There were two fundamental questions, and uncertainty as to each. First, in what circumstances could the burden of a covenant ‘run at law’: that is to say, when would the covenant made by a predecessor in title impose a legal duty on a successor

25

Tulk v Moxhay (1848) 11 Beav 571, 50 ER 937. For further discussion of this aspect of Tulk v Moxhay, see C Bell, ‘Tulk v Moxhay Revisited’ [1981] Conveyancer & Property Lawyer 55 and a reply by R Griffiths, ‘Tulk v Moxhay Reclarified’ [1983] Conveyancer & Property Lawyer 29. 27 Certainly, the Tulk family did later give such a licence to James Wyld: see section C(1) below. 28 (1834) 2 My & K 517, 39 ER 1042. 29 Third Report of the Commissioners on the Law of Real Property (1832), Parliamentary Papers 1832 (484) XXIII. 30 Third Report (n 29) 45. A similar complaint has recently been made by the Law Commission of England and Wales: see Law Commission, Making Land Law Work: Easements, Covenants and Profits a Prendre (Law Com No 327, 2011) paras [5.4]–[5.20]. 31 Third Report (n 29) 46. 26

Tulk v Moxhay 211 in title to the covenantor? Secondly, if a covenant did not run at law, when, if at all, could equity intervene to enforce the covenant against the successor? Given the practical importance of freehold covenants, it is no surprise that these questions had already come before the courts. Indeed, in November 1822, Lord Eldon LC heard two claims that a covenant entered into by the defendant’s predecessor in freehold title could be used to stop building in Bloomsbury.32 In neither case was the covenant enforced; but in neither case did the Lord Chancellor state that it was impossible for such covenants to bind successors. In Roper v Williams,33 an injunction to enforce an 1816 covenant was denied on the basis of Roper’s acquiescence in the successor in title’s building on the land. Roper had initially served a notice that such building should cease, but had subsequently been ‘shown the opinion of counsel that the rights under the covenant could not be insisted on’ and so had failed to take any further steps. Lord Eldon stated that ‘[v]ery little in cases of this nature is sufficient to show acquiescence; and courts of equity will not interfere unless the most active diligence has been exerted throughout the whole proceedings’.34 In Duke of Bedford v The Trustees of the British Museum,35 the Trustees wished to extend the museum northwards and eastwards, in order to house the Elgin marbles. The Duke sought an injunction, relying on a covenant entered into, in 1675, by a predecessor in title of the Trustees. Sir John Leach denied the application, seemingly on the basis that no injunction could be granted unless it was established that the covenant ran with the land at law. When the application came before Lord Eldon, he expressed no opinion on that crucial point. Rather, he stated that even if an action at law were possible, it did not follow that an injunction would be granted. In this case, the crucial factor was that the ‘acts of the Russell family themselves had destroyed the purpose for which the covenant was inserted in the deed of June 1675’.36 For that purpose was twofold: to preserve the uninterrupted views of Southampton House, which had since been demolished; and to maintain the open character of the surrounding neighbourhood, which the Russell family themselves had since built on. As a result, it could not be shown that it would be inequitable not to grant an injunction and the applicant was left to his remedies, if any, at law. Roper v Williams and Duke of Bedford v Trustees of the British Museum each contributed to the uncertainty surrounding the effect of covenants on

32 The cases are examined in more detail by S George, ‘Tulk v Moxhay Restored—To Its Historical Context’ (1990) 12 Liverpool Law Review 173. 33 Roper v Williams (1822) Turn & R 18, 37 ER 999. 34 Ibid, 22. 35 Duke of Bedford v The Trustees of the British Museum (1822) 2 My & K 552, 39 ER 1055. 36 Ibid, 568, 1061.

212 Ben McFarlane successors in title.37 Nonetheless, these decisions may have had some role in preparing the ground for the eventual enforcement of freehold covenants against successors in title. Certainly, the Commissioners on the Law of Real Property stated that such enforcement should be developed in equity, rather than at common law, as a court of equity would have the flexibility to deny enforcement in cases of acquiescence, change of circumstances or uncertainty.38 The Third Report of the Real Property Commissioners, however, left a vital question unanswered—if equity is to enforce a freehold covenant against a successor in title, what is the conceptual basis for such intervention? One such basis was suggested, two years after the Third Report, by Sir Edward Sugden (later Lord St Leonards, Lord Chancellor) when appearing as counsel in Keppell v Bailey.39 His first argument was that the defendants were bound at common law by the positive freehold covenant entered into by their predecessors in title. His second argument was that, even if the freehold covenant in that case did not run with the land at common law,40 the notice which, prior to their purchase, the defendants had received of the existence and nature of the covenant, imposed an obligation which bound them in conscience, and which a Court of Equity would not suffer them to violate.

Lord Brougham LC’s rejection of Sugden’s first argument remains the most eloquent judicial defence of the numerus clausus principle in the common law world. His Lordship’s analysis of the second argument was clearly informed by the need not to undermine the limits thus imposed on ‘real burdens’. In his view, a covenant which does not itself create such a burden41 cannot bind such assignee by affecting his conscience. If it did, then the illegality would be of no consequence; and however wild the attempt might be to create new kinds of holding and new species of estate, and however repugnant such devices might be to the rules of law, they would prove perfectly successful in the result, because equity would enable their authors to prevail …

The seemingly conclusive nature of Keppell was challenged, however, even before the decision in Tulk v Moxhay. Certainly, the lapidary nature of Lord Brougham’s judgment did not daunt Sugden who, in his Vendors

37 See too Collins v Plumb (1810) 16 Ves Jr 454, 33 ER 1057, in which Lord Eldon relied on the uncertainty of a covenant’s terms in refusing to enforce it against a successor in title. 38 Third Report (n 29) 55. A parallel can perhaps be drawn with the more modern attempt to allow promissory estoppel to be used as a means to give effect to contractual variations— the equitable basis of the doctrine may, for example, be used to ensure that a promisee does not profit from a promise procured by pressure: see eg the approach of Lord Denning MR in D&C Builders Ltd v Rees [1966] 2 QB 617 (CA). 39 Keppell v Bailey (1834) 2 My & K 517, 39 ER 1042. 40 Ibid, 526, 1045. 41 Ibid, 547, 1053.

Tulk v Moxhay 213 and Purchasers,42 provided the most sophisticated contemporary account of the controversy surrounding the effect of covenants on successors in title, as well as setting out possible objections to Lord Brougham’s analysis. It would perhaps be dangerous to follow a commentator in the Harvard Law Review of 1891, and to use Sugden’s work as evidence that Keppell v Bailey was ‘unfavourably received by the profession’43—it rather shows that, perhaps unsurprisingly, the decision was not welcomed by losing counsel in the case.44 The significance of Sugden’s analysis rather lies in the attempt to establish a possible conceptual basis for a distinctly equitable doctrine permitting the enforcement of covenants against successors in title. Sugden’s rejoinder to Lord Brougham’s analysis rests on two key points. First, even if a covenant does not run at law, it is unnecessary and incorrect to describe it as an ‘illegality’—the covenant does operate to impose a duty on the covenantor, and that duty is one which, in a suitable case, equity may enforce by an injunction. Secondly, as part of the protection it provides to that initial duty, a court of equity may also allow a successor in title to be bound—in doing so, it would simply safeguard the initial personal obligation and therefore would not contradict the proposition that the covenant does not run at law. Sugden placed particular reliance on the analogy with a prior contract for the sale of an estate in land, arguing that it reflected precisely that model of intervention and that ‘[i]t is remarkable that the strict analogy should not have presented itself to the mind of the learned judge’.45 Support for Sugden’s attack on Keppell was soon provided by Whatman v Gibson46 and Mann v Stephens:47 in each case, an injunction was granted against a holder of a fee simple in order to prevent action contrary to a covenant entered into by his predecessor in title. Whatman concerned the enforcement of what would now be known as a building scheme, dating from 1799, designed to maintain the residential nature of the plots sold by a common vendor in Ramsgate. The report of Shadwell V-C’s48 judgment contains no reference to authority but a recognition of the practical

42 E Sugden, A Practical Treatise on the Law of Vendors & Purchasers of Estates, 11th edn (London, Butterworths, 1839) 496–507. 43 C Giddings, ‘Restrictions upon the Use of Land’ (1891) 5 Harvard Law Review 274, 274. 44 Sugden and Lord Brougham crossed swords on other occasions, with the latter’s wit apparently giving him the upper hand in the House of Commons—see W S Holdsworth, A History of English Law (London, Methuen, 1972 edn) vol 15, 646. 45 Sugden (n 42) 505. 46 Whatman v Gibson (1838) 9 Sim 196, 59 ER 333. 47 Mann v Stephens (1846) 15 Sim 377, 60 ER 665. 48 Shadwell was counsel for the Duke in Duke of Bedford v Trustees of the British Museum (n 35).

214 Ben McFarlane importance of the building scheme to maintaining the character of the locality:49 Each proprietor is manifestly interested in having all the neighbouring houses used in such a way as to preserve the general uniformity and respectability of the row, and, consequently, in preventing any of the houses from being converted into shops or taverns, which would lessen the respectability and value of the other houses.

There is no suggestion, however, of a positive basis for equitable intervention, other than notice. Indeed, in the report, the Vice-Chancellor’s view is phrased negatively: ‘I see no reason why such an agreement should not be binding in equity on the parties so coming in with notice.’50 In Mann v Stephens, the Vice-Chancellor relied on his own decision in Whatman to grant an injunction restraining the defendant from building a brewery, or any building other than a private house or ornamental cottage, erected ‘so as to be an ornament, rather than otherwise, to the surrounding property’; and, in fact, the defendant was committed for refusing to comply with the injunction. Lord Cottenham LC discharged the committal order, as there was insufficient evidence to support it. The injunction was also varied to remove the uncertain stipulation as to ornamentality, but was otherwise held to have been properly granted. This discussion of Whatman and Mann highlights the often arbitrary nature of landmark status,51 which has been denied to each of them but won by Tulk v Moxhay. One might expect that if such status were to be merited, the decision in Tulk would provide not just a further example of equity’s enforcement of a freehold covenant against a successor in title, but also a principled justification for such enforcement.

C. THE DECISION AND ITS IMPACT

(1) The Factual Impact The decision in Tulk v Moxhay did nothing to improve the condition of the Leicester Square garden, or the health of Charles August Tulk or Edward Moxhay, each of whom was dead within three months of the decision. Neither did it prevent building on the garden, which soon became the home of Wyld’s Great Globe. A forerunner of the Millennium Dome, opened to coincide with the Great Exhibition, this was a concave globe with a diameter 49

Whatman (n 46) 207, 338. Ibid. 51 AWB Simpson, A History of the Land Law, 2nd edn (Oxford, Clarendon Press, 1986) 267, suggests that only the vagaries of mid-nineteenth-century law reporting denied Mann wider recognition. 50

Tulk v Moxhay 215 of 60 feet, containing elevated platforms from which visitors viewed a scale model relief map of the earth’s surface, consisting of over 6,000 plaster-ofParis casts.52 Moxhay had died heavily in debt, largely due to the Hall of Commerce project, and his mortgagees sold the garden to James Wyld, who, in 1851, paid the Tulk family for a licence permitting him to construct the Globe and to keep it in place for 10 years. As part of this agreement, Wyld also granted two options to purchase a half share of the garden for £500, exercisable on the ending of the licence. One such option was granted to the younger John Augustus Tulk (Charles’s half-brother); the other to Charles’s heirs. Wyld also felt obliged to reach an agreement with one Henry Webb, a resident of the north side of the Square, who had not acquired any of the Tulk land but who claimed that he could prevent building on the garden by enforcing the terms of the 1789 partition. Under this agreement, entered into in July 1851, Wyld also promised to restore the garden to ‘good condition as a square garden and pleasure ground’. Despite its educational value, the Globe did little to raise the tone of the Square, and in Bleak House, the region ‘lying about the Haymarket and Leicester Square’ is described as ‘a centre of attraction to indifferent foreign hotels and indifferent foreigners, racket-courts, fighting-men, swordsmen, footguards, old china, gaming-houses, exhibitions, and a large medley of shabbiness and shrinking out of sight,’53 where, on a winter morning, ‘[b]ehind dingy blind and curtain, in upper story and garret, skulking more or less under false names, false hair, false titles, false jewellery, and false histories, a colony of brigands lie in their first sleep.’54 Indeed, in 1861, during the First Reading of the Gardens in Towns Protection Bill, Lord Redesdale informed the House of Lords that, ‘some time ago’, he had called their Lordships’ attention to the state of Leicester Square garden.55 An attempt was made to improve matters when, in 1865, the Metropolitan Board of Works, forerunner to the London County Council, announced its intention to take control of the garden. By this point, one of the options granted by Wyld in 1851 had been exercised by John Augustus Tulk. John Augustus successfully opposed the plans of the Metropolitan Board of Works, on the basis that the relevant statutory authority applied only if the garden had been ‘set apart for the use or enjoyment of the inhabitants’56 of

52 As noted in Punch (1851) vol XX, 5: ‘The World, as has often been remarked by moralists before, is exceedingly hollow; but then, if it were not, we could never have seen it for one shilling.’ Thanks to the scale of 1 inch for every 10 miles, Wyld ‘compressed volcanoes into a thimble, and condensed lakes into the size of a tea-cup!’ 53 C Dickens, Bleak House (1852–53), ch 21. 54 Ibid, ch 26. 55 Hansard, HL Deb 01 August 1861, vol 164, col 1817. 56 Act for the Protection of Garden or Ornamental Grounds in Cities and Boroughs (26 Vict c 13), s 1.

216 Ben McFarlane Leicester Square.57 Two months later, Wyld sold his half share of the garden to Charles’s seven heirs, with the result that the freehold of the garden was once again controlled by the (now extended) Tulk family.58 In 1862, the indefatigable Henry Webb brought an unsuccessful action seeking to force John Augustus to restore the garden;59 in 1873, he succeeded in obtaining an order that John Augustus remove hoardings which had been erected around the garden to advertise (inter alia) cocoa and cheap trousers,60 and it was confirmed that no building could be erected on the garden.61 There is some irony in the fact that an injunction to prevent building on the garden was thus awarded against Charles’s brother; but it is important to note that Webb was relying not on the covenant made by Elms in 1808, but rather on the 1789 partition order, as well as the terms of Wyld’s 1851 agreement with Webb.62 The condition of the garden continued to be a matter of public concern. In 1868, The Builder stated that the garden itself had ‘long been a scandal to those who have any regard for the proper maintenance of our public monuments, and for the dignity or even the decency of the metropolis of Great Britain’.63 On 8 December 1873, The Times stated that the garden had ‘long been the opprobrium of the Metropolis’ and regarded it as a visible manifestation of the ‘barbarous apathy’ of Londoners. It thundered: Only in Rome in the Papal days could neglect and decay be seen in any degree resembling the aspect of Leicester Square, and even in Rome ruin and dirt never struck the eye with such an appearance of sordid squalor … it must be confessed to our shame, as a nation proud of the faculty of self-governance, that we have allowed such a nuisance to remain unabated so long …

Perhaps stirred by this philippic, the Metropolitan Board of Works sought an Act for the compulsory purchase of the garden. While this received Royal Assent in 1874, the Board was not obliged to invoke it, as by October 1874, Albert Grant MP, who had independently decided to purchase the garden for the public, had acquired not only John Augustus’s undivided half share of the garden, but also the rights of all of the seven Tulk family members with interests in the other half share.64 The total cost to the philanthropic 57 See Tulk v Metropolitan Board of Works (1867) LR 3 QB 94 and Tulk v Metropolitan Board of Works (1868) LR 3 QB 682 (Exchq). 58 Each heir paid £142 17s 1d, making a total of £1,000—the option to purchase the half share for £500 had lapsed in 1862. 59 The pleadings are held by the National Archives: C 16/902/W 11. 60 In his answer to Webb’s 1862 bill of complaint, John Augustus had averred that none of the advertisements was ‘otherwise than of a proper and useful character’: C 16/902/W 11, p 26. 61 The order was made by the Master of the Rolls on 5 December 1873: see The Times, 8 December 1873, 9. 62 As may be seen from Webb’s 1862 bill of complaint: C 16/902/ W 11, pp 23 and 26. 63 The Builder, 25 July 1868, 542–43. 64 One of those seven had recently died in Australia, which delayed completion of the conveyancing.

Tulk v Moxhay 217 Grant was over £11,000, and he spent further sums in repairing and landscaping the garden, adding a marble fountain and busts of famous former residents of the Square, Reynolds and Hogarth included. The 1874 Report of the Board of Works noted that on 3 July 1874, at the opening ceremony of the new garden, the title transferred by Grant to the Board was to ‘the once dreary and desolate piece of ground … transformed into a beautiful garden.’

(2) The Legal Impact We have seen that, following the decision in Tulk v Moxhay, further action was required to restore the Leicester Square garden. It took even longer for order to be imposed on the law of freehold covenants. The first reported decision in Tulk v Moxhay is that of Lord Langdale MR, upholding the ex parte injunction already granted in Tulk’s favour.65 Rather than seeking to clarify the law, the Master of the Rolls acknowledged its uncertainty and anticipated, or perhaps even encouraged, a further motion by Moxhay, stating that ‘however inconvenient the contest may be to the parties themselves, it would certainly be a benefit to the public if this case should lead to an authoritative and final determination on these two questions.’66 Yet the later decision of Lord Cottenham LC did not provide such certainty. For example, in 1909, Jolly’s Restrictive Covenants Affecting Land admitted that ‘the law [as to] whether the doctrine of Tulk v Moxhay applies to a covenant personal to the covenantee and the benefit whereof cannot be annexed to any particular property, is in a state of great uncertainty.’67 The clearest part of Lord Cottenham’s short judgment is its rejection of the view that equitable intervention by way of injunction is limited to cases in which the covenant runs at law: ‘[T]he question is not whether the covenant runs with the land …’68 Lord Cottenham thus rejected the general proposition that equity has a role to play only when a defendant is subject to a legal liability. That must be correct, and is demonstrated by, for example, the power of a trust beneficiary to assert a right against a stranger receiving a trust asset. The important question, however, is whether, in the specific context of covenants, there is a positive basis on which a third party can be bound by a covenant which does not run at law. It can perhaps best

65

(1848) 11 Beav 571, 50 ER 937. Ibid, 582, 942. 67 W Jolly, Restrictive Covenants Affecting Land (London, Stevens & Sons, 1909) 24. J Ames, ‘Specific Peformance For and Against Strangers to the Contract’ (1903) 17 Harvard Law Review 174, 180, notes that there was similarly no consensus on that question in the US authorities. 68 (1848) 2 Ph 774, 777; 41 ER 1143, 1144. 66

218 Ben McFarlane be said that Lord Cottenham’s approach suggests, but does not definitively establish, three possible bases.69 The first of these possible rationales is the least convincing. Lord Cottenham states that Elms having bought his land at a discount, owing to the restrictions on its use, ‘nothing could be more inequitable that that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape the liability which he had himself undertaken’.70 On one reading of this statement, the power to award an injunction against a successor in title is justified, and thus limited, by the need to prevent an original covenantor from making an unjust profit. Such a rationale has both conceptual and practical problems. Conceptually, if the concern is to prevent the original covenantor’s unjust profit, it would seem that the response should be to impose a duty on the covenantor, rather than his successors in title. Further, if the covenantor’s unjust profit were the only concern, it is difficult to see why the successor in title’s notice of the covenant should have any role to play. Practically, the rationale cannot meet the need, identified by both the Commissioners on Real Property and Shadwell V-C in Whatman v Gibson,71 to secure the protection of a covenantee in a case where the covenantor does not seek to make a profit by selling free from the covenant. After all, Elms himself made no profit from selling the land, as it passed under his will; and, as we have seen, when Barrow sold to Inderwick he did not attempt to do so free from the restrictions on the use of the land. It is therefore no surprise that this rationale was not developed in the later case law. Two further possible rationales are evident in Lord Cottenham’s judgment, and the tension between them was the principal reason why that judgment failed to clarify the law of freehold covenants. On the first of these rationales, equitable intervention is based on the defendant’s acquisition of his rights with notice of the original promise. Lord Cottenham states:72 It is said that, the covenant being one which does not run with the land, this Court cannot enforce it; but the question is, not whether the covenant runs with

69 It should be emphasised that these are not the only possible rationales for the decision in Tulk. For an attempt to explain the doctrine in Tulk as depending on the unjust enrichment of the successor in title, see Ames (n 67). A Tettenborn, ‘Covenants, Privity of Contract, and the Purchaser of Personal Property’ [1982] CLJ 58 makes a similar argument as to the basis of the dictum of Knight Bruce LJ in de Mattos v Gibson (1849) 4 De G & J 276, 45 ER 108. The objections to an unjust enrichment analysis set out by H Stone, ‘The Equitable Rights and Liabilities of Strangers to a Contract’ (1918) 18 Columbia Law Review 291 at 298–300, do however seem to be decisive: Stone notes, for example, that ‘the profit is not unmerited unless the restriction is legally operative and upon some theory or other the purchaser is so acting as to invade the plaintiff’s equitable right’. 70 (1848) 2 Ph 774, 778; 41 ER 1143, 1144. 71 Whatman v Gibson (1838) 9 Sim 196, 59 ER 333. 72 (1848) 2 Ph 774, 777–78; 41 ER 1143, 1144.

Tulk v Moxhay 219 the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.

This reasoning is consistent with the initial promise giving the promisee a purely personal right against the promisor: it seems that the promisee’s protection against the successor in title depends on a new right, arising directly against the successor in title as a result of his own conduct.73 This analysis influenced, and initially gained support from, the famous dictum of Knight Bruce LJ in de Mattos v Gibson74 that, if he receives property with knowledge of a contract relating to it, a successor can be prevented from acting inconsistently with the terms of the contract.75 Along with Lumley v Wagner76 and Lumley v Gye,77 Tulk and de Mattos can be seen as part of a trend, developed both in equity and at common law, to prevent third party interference with contractual obligations. For example, in Luker v Dennis,78 Fry J expressly held that developments to the ‘equitable doctrine of notice’, such as the decisions in de Mattos and Catt v Tourle,79 meant that he was not bound by Lord Brougham’s statement in Keppell v Bailey that notice of a pre-existing agreement, by itself, cannot suffice to bind the conscience of a successor in title. It is worth noting in passing that, although it had been cited to him, Fry J did not refer to Tulk at all in his judgment. Whilst the influence of Tulk was felt indirectly—Fry J did rely on Catt v Tourle, in which Selwyn LJ in turn relied on Tulk—this confirms the view that Lord Cottenham’s judgment was not yet a landmark but was rather part of a broader trend to prevent knowing third party interference with contractual rights.80 It may therefore be that Tulk’s current landmark status depends on the fact that this broader trend was ultimately restricted—in

73 For the distinction, see B McFarlane, ‘Identifying Property Rights: A Reply to Mr Watt’ [2003] Conveyancer & Property Lawyer 473 and ‘Equity, Obligations and Third Parties’ [2008] Singapore Journal of Legal Studies 308. See too L Smith, ‘Transfers’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) 111. 74 de Mattos v Gibson (1849) 4 De G & J 276, 282; 45 ER 108, 110. 75 de Mattos (n 74) 282, 110. The dictum in full is as follows: ‘Reason and justice seem to prescribe that, at least as a general rule, where a man, by gift or purchase, acquires property from another, with knowledge of a previous contract, lawfully and for valuable consideration made by him with a third person, to use and employ the property for a particular purpose in a specified manner, the acquirer shall not, to the material damage of the third person, in opposition to the contract and inconsistently with it, use and employ the property in a manner not allowable to the giver or seller.’ 76 Lumley v Wagner (1852) 1 De GM & G 604, 42 ER 687. 77 Lumley v Gye (1853) 2 El & Bl 216, 118 ER 749. 78 Luker v Dennis (1877) 7 Ch D 227. 79 Catt v Tourle (1869) LR 4 Ch App 654. 80 Eg, Snell’s Equity, whilst discussing Catt v Tourle from its 2nd edition in 1872, made no mention of Tulk until its 8th edition in 1887.

220 Ben McFarlane particular, the dictum of Knight Bruce LJ in de Mattos v Gibson has been treated with caution81 and scepticism.82 In fact, by the time of Luker v Dennis, there was already strong evidence that the courts were beginning to prefer a different rationale, also present in Lord Cottenham’s judgment. The Lord Chancellor’s very brief consideration of Keppell v Bailey included the view that Lord Brougham ‘never could have meant to lay down that this Court would not enforce an equity attached to land by the owner, unless under such circumstances as would maintain an action at law’.83 On this analysis, it is not notice alone which justifies equitable intervention. Further support for this rationale comes from Lord Cottenham’s statement, earlier in the judgment, that84 if there was a mere agreement and no covenant, this Court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.

On this view, the covenantor’s initial promise does not simply give the covenantee a personal right against that covenantor, capable of being protected against successors in title who acquire their right with notice of the initial promise. Rather, by virtue of that initial promise, ‘an equity is attached to the property’, and it is that pre-existing equitable property right that may be asserted against successors in title. It is no longer the job of the covenantee to prove that the successor acquired his rights with notice of the initial promise; rather, notice is one aspect of the grounds the successor must establish in order to show that he can escape from the equity attached to the land which, prima facie, persists through the transfer of that land to the successor. This model can thus better meet the practical need of securing the protection of the covenantee, who is no longer obliged to establish the actual notice of the successor in title. This may be seen, for example, in Wilson v Hart.85 In that case, the defendant was merely a tenant from year to year—his landlord was a successor to the freehold title of the original promisor. As he had not investigated his 81 See eg Formby v Barker [1903] 2 Ch 539 (CA), in which Vaughan Williams LJ limited the scope of the dictum by seeing it as equivalent to the tort of procuring a breach of contract. This approach was followed by Browne-Wilkinson J in Swiss Bank v Lloyd’s Bank [1979] 1 Ch 548, 573. 82 See eg Barker v Stickney [1919] 1 KB 121 (CA), in which Scrutton LJ at 131–32 took the view that in relation to land, the de Mattos principle had been limited to cases where the initial promise created a restrictive covenant (a recognised equitable property right), whereas ‘as to personal property it was found that the general rule of Knight Bruce LJ was quite impracticable’; see too Port Line Ltd v Ben Line Steamers Ltd [1958] 2 QB 146. For an attempt to defend the validity of Knight Bruce LJ’s dictum in cases where a transfer of property would otherwise deny the claimant the chance of an injunction, see Tettenborn (n 69). 83 (1848) 2 Ph 774, 779; 41 ER 1143, 1145. 84 Ibid, 778; 1144. 85 Wilson v Hart (1866) 1 Ch App 463.

Tulk v Moxhay 221 landlord’s title, the defendant, prior to acquiring his tenancy, had no actual notice of a covenant not to use the land for the sale of intoxicating liquor. As a result, the defendant did not fall, for example, within the principle set out by Knight Bruce LJ in de Mattos. Nonetheless, an injunction was granted, as it was held that the defendant ought to have inquired into the title of his landlord.86 Wilson was applied in Feilden v Slater,87 in which, again, an injunction was granted to prevent the sale of alcohol from the defendant’s premises. In that case, James V-C’s interpretation of Wilson was that88 if a man will take an underlease he must be bound by all the covenants in the original lease. And although, no doubt, that was a strong instance of legislative action on the part of the Judges of this Court, one can easily see the immense amount of mischief which was intended to be obviated by it.

The courts’ developing preference for the rationale that the initial covenant may create an ‘equity attached to the property’ had important practical and conceptual consequences. Practically, the law better met the perceived need to secure the value of the covenant to the land benefitting from it, as the covenantee did not need to prove that the successor in title of the covenantor had acquired his right with notice of the initial covenant. Conceptually, when deciding if the initial promise does, by itself, create an equitable burden, it is natural to focus carefully on the precise terms of that promise. This impact of this shift in focus, away from the conduct of the successor in title and to the content of the initial promise, may be seen in a series of decisions, made in a period of 20 years or so from 1880, which played a decisive role in shaping the modern rules as to restrictive covenants. For example, the Court of Appeal’s decision in Haywood v Brunswick Permanent Building Society89 established that the ‘rule of Tulk v Moxhay’90 could not be used to enforce a positive covenant against a successor in freehold title.91 As we have seen, cases such as Wilson v Hart had determined that the ‘rule of Tulk v Moxhay’ could be used to enforce a covenant against a yearly tenant with no actual notice of the covenant; and in Haywood, Lindley LJ specifically noted that it would be ‘absurd’ for a yearly tenant

86 Wilson was applied in Patman v Harland (1881) LR 17 Ch D 353, even though in that case the lessee had been assured by his lessor that there was no restrictive covenant preventing him from using the land as an art college. 87 Feilden v Slater (1869) LR 7 Eq 523. 88 Ibid, 530. 89 Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403 (CA). 90 Ibid, 408 (Brett LJ). 91 In the period between Tulk and Haywood, there had been some evidence to the contrary: see eg Morland v Cook (1868) LR 6 Eq 252, Cooke v Chilcott (1876) 3 Ch D 694. See further S Gardner, ‘The Proprietary Effect of Contractual Obligations under Tulk v Moxhay and de Mattos v Gibson’ (1982) 98 LQR 279, 293–99.

222 Ben McFarlane to be subject to a positive burden.92 In its recent report, Making Land Law Work: Easements, Covenants and Profits à Prendre,93 the Law Commission noted precisely this point, recognising that any new statutory scheme allowing for the enforcement of positive freehold covenants must take care to define precisely which successors are to be bound.94 It is very difficult to see how such distinctions could have been drawn judicially, and this is certainly one explanation for the Court of Appeal’s decision in Haywood. The enforcement of positive duties might also have caused difficulties for the relationship between the common law and equitable rules. It may be argued that an equitable doctrine which permits for injunctions preventing action contrary to the terms of a prior promise is not in direct conflict with the common law rules as to the running of covenants, as the defendant is not made liable for breach but rather is enjoined from a particular course of action. Where positive covenants are concerned, it is more difficult to accept both a common law rule that the defendant is not liable (for example) to pay a specific sum and an equitable rule that the defendant can be forced to make such a payment. This difficulty may partly explain Lord Templeman’s statement in Rhone v Stephens:95 Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors in title without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it.

Indeed, the limitation of the Tulk doctrine to negative promises is also consonant with a common feature of equitable intervention: the acknowledgement that the defendant has a particular right is coupled with the placing of limitations on the exercise of that right.96 In contrast, the imposition of a duty to perform under the Tulk doctrine, where no such duty is recognised by the common law rules, would cause common law and equity to give different answers to the same question, and thus risk incoherence and confusion.97 The decision in Haywood was an important part of the final victory in the interpretation of the ‘doctrine in Tulk’ as resting on the recognition of a new form of equitable interest in land. The decisive moment, however, was the decision of the Court of Appeal in London & South Western Rwy Co

92

Haywood (n 89) 411. (Law Com No 327, 2011) paras 6.106–6.117. 94 The proposal is that a tenant with a lease granted for a term of seven years or less will not be bound by a positive land obligation: Law Commission (n 93) 6.109. 95 Rhone v Stephens [1994] 2 AC 310, 318. 96 Such a model can be seen, eg, in the operation of promissory estoppel: see eg Central London Property Trust Co Ltd v High Trees House Ltd [1947] KB 130. 97 For a general discussion of this danger, see A Burrows, ‘We Do This At Common Law, but That In Equity’ (2002) 22 OJLS 1. 93

Tulk v Moxhay 223 v Gomm.98 At first instance, Kay J held that the defendant was bound ‘on the principle of Tulk v Moxhay’, as he had acquired the land with notice of a predecessor’s covenant.99 Kay J also held that the covenant had not created any estate or interest in the land, and was therefore not within the rule against perpetuities. As late as December 1881, then, the notice-based rationale of Tulk still had some currency. The Court of Appeal, however, allowed Gomm’s appeal, and Lord Jessel MR’s judgment contained an influential analysis of what he called ‘the doctrine of [Tulk v Moxhay]’.100 Confirming the decision of the Court of Appeal in Haywood, Lord Jessel stated that the doctrine must be confined to restrictive covenants; but it was the conclusion he drew from this that proved particularly influential. His Lordship suggested that the doctrine of Tulk was101 either an extension in equity of the doctrine of Spencer’s Case to another line of cases, or else an extension in equity of the doctrine of negative easements; such, for instance, as a right to the access of light, which prevents the owner of the servient tenement from building so as to obstruct the light.

Lord Jessel’s reasoning draws an important link between a preference for the ‘equity attached to the property’ rationale and the placing of limits on the content of the initial promise. The analogy with leasehold covenants and easements proved particularly influential. For example, Formby v Barker102 concerned an attempt by an executor of the initial promisee to enforce a promise limiting the use of the land against a successor in title to the initial promisor. The promisee had sold the whole of his estate to the initial promisor, and so had retained no land which could benefit from the limits imposed. Building on Lord Jessel’s analysis, as well as the dicta of Collins LJ in Rogers v Hosegood,103 the Court of Appeal held that the Tulk doctrine could not apply in such a case, as the initial promise was ‘a mere personal covenant collateral to the conveyance’: just as a leasehold covenant had to benefit the estate of the landlord or tenant, and an easement had to accommodate a dominant tenement, a restrictive covenant had to benefit some land. Vaughan Williams LJ specifically considered, and rejected, the view that the Tulk doctrine ‘is based upon obligations on the conscience of a person taking an estate with notice of a restrictive covenant binding it’.104

98 London & South Western Rwy Co v Gomm (1881) 20 Ch D 562. It seems the defendant may well have been related to the defendant in Whatman v Gibson (n 46). 99 Gomm (n 98) 576. 100 Ibid, 582. 101 Ibid, 583. 102 Formby v Barker [1903] 2 Ch 539 (CA). 103 Rogers v Hosegood [1900] 2 Ch 388 (CA). 104 Formby v Barker (n 102) 551.

224 Ben McFarlane In Re Nisbet & Potts’ Contract,105 the crucial question was whether a restrictive covenant could be enforced against a squatter who had barred the title of the initial covenantor: someone who thus was not a successor in title to the covenantor, and had no notice of the initial covenant. At first instance, Farwell J, referring to Gomm and Rogers v Hosegood, stated:106 It is clear therefore that the person entitled to the benefit of the negative covenant over Blackacre has an equitable interest in Blackacre, and that such interest has the same nature and qualities as any other equitable interest in land in respect of priority, notice and the like, but that notice forms no part of the cause of action in respect of such equitable interest.

On this view, notice becomes relevant only when a third party attempts to escape from the prima facie binding effect of the equitable interest by proving himself to be a purchaser for value—this route, of course, was not open to a squatter. Neither was it open to a bona fide purchaser of the squatter’s estate, as it is ‘for the vendor to prove that he had no notice from the prior deeds, and he can only do this by producing such deeds’.107 Farwell J’s analysis was confirmed by the Court of Appeal, with Collins LJ stating that108 it seems to me that the law is clearly established in accordance with Sir George Jessel’s view of the subject, and consequently that in this case the burden of the restrictive covenant did remain imposed on the land so as to be binding upon any person who could not show that he had bought for value and without notice.

D. THE NATURE OF EQUITABLE PROPERTY RIGHTS: LESSONS FROM TULK

The importance of Tulk v Moxhay is often said to lie in its invention of a new form of equitable property right. We have seen, however, that Tulk was not the first case in which a predecessor in title’s promise not to use land in a particular way was protected against a successor to his fee simple title: Whatman v Gibson and Mann v Stephens provide two earlier examples. Similarly, Tulk itself did not decisively and authoritatively establish the nature, or even the existence, of an equitable interest in land—that conclusion was reached only after a number of later cases, decided over a period of 60 years or so. Those cases grappled with the tension, apparent in Lord Cottenham’s decision in Tulk, between two different methods by which a

105 106 107 108

Re Nisbet & Potts’ Contract [1905] 1 Ch 391 (ChD), [1906] 1 Ch 386 (CA). [1905] 1 Ch 391, 398. Re Nisbet & Potts’ Contract [1905] 1 Ch 391 (ChD), 402. [1906] 1 Ch 386 (CA) 404.

Tulk v Moxhay 225 successor may be bound: by a new direct right; or by a pre-existing right which persists through a transfer to the successor. More generally, the treatment of Tulk tells us something about landmark cases: many such cases have to be understood not as isolated high-points, but rather as one part of a more gradual development and refinement of legal principle. This is not to say that the very idea of a landmark case is misleading—even if a new principle does require further refinement to survive and flourish, its initial existence may be due to an individual flash of insight in a particular judgment. One of the past advantages of equity, certainly useful in the nineteenth century, was the general absence of juries; this allowed innovative judges the latitude to set out a new principle or concept, trusting that it was to be interpreted and applied by judges rather than laymen. Further, somewhat paradoxically, a lack of clarity as to the basis of a case may in fact assist its acquisition of landmark status: as we have seen, one of the reasons for the name recognition of Tulk is precisely that judges in later cases had to refer to the ‘doctrine in [or rule of] Tulk v Moxhay’, as the conceptual basis of that principle could not be clearly stated.109 Indeed, a further lesson to be taken from the story of Tulk110 is that judicial interpretation of a decision may include the re-characterisation of that principle. Simpson, noting that the limits imposed on the Tulk doctrine in later case law were not demanded by Lord Cottenham’s decision itself, concludes that ‘[i]n the typical manner of lawyers a new history was invented to give plausibility to these restrictions’.111 This does not mean, however, that we should necessarily be sceptical about the re-characterisation of an earlier decision. Ongoing discussion as to the correct basis of a decision is a natural and commendable aspect of judge-made law, and the doctrine of precedent does permit the re-interpretation of judicial reasoning, provided that consistency is maintained, as far as is possible, with the results of the decided cases. The later treatment of Tulk shows that even if lawyers and legal scholars may feel some doubts about putting forward a new view of a decision, such re-interpretation may in fact be welcomed by the courts. More specifically, what can the story of Tulk tell us about the nature of equitable property rights? It is here that, like those tourists pausing in Leicester Square, we need to be careful. At an abstract level, Lord Cottenham’s general method is revealing. Following Sugden’s model, discussed in section B(2) above, his Lordship started with the duty imposed on the initial promisor, and then asked if the protection given to the promisee might be extended so as to bind a successor in title to that promisor. 109

The decision in Re Hastings Bass [1975] Ch 25 (CA) provides a more recent equivalent. One which is also relevant to Re Hastings Bass (n 109): see now Pitt v Holt [2011] EWCA Civ 197. 111 A Simpson, A History of the Land Law, 2nd edn (Oxford, Clarendon Press, 1986) 259. 110

226 Ben McFarlane In addition, Lord Cottenham emphasised that the initial promise did not have to be formal: it need not be a covenant in the technical sense of a promise in a deed. This is consistent with the view, controversial but shared by a number of both past112 and current commentators,113 that there is a fundamental conceptual difference between legal property rights and equitable property rights. On one version of this view, the operation of equitable property rights consists precisely in their building on an initial duty owed by one party to another, and then allowing that duty to have an effect on a third party. In this way, Lord Cottenham’s judgment, like that of Knight Bruce LJ in de Mattos v Gibson, reveals the ‘raw doctrine’114 on which the operation of equitable property rights is based: the extension of an initial duty to a third party acquiring a right from the party initially bound. One danger of those two judgments, however, is to assume that the ‘raw doctrine’ is all that one needs to explain the operation of such rights. Such a view, or at least a view very close to it, was adopted by Stone.115 On Stone’s model, the binding effect of an equitable property right on a third party comes from the duty of such a third party not to interfere with an initial duty owed by another, such as, in this context, the duty of the initial promisor. The later refinement of Tulk, making clear that an equitable property rights exists only if the initial promise is of a particular type (for example, it must benefit some retained land of the promisee), caused a problem for Stone’s analysis, and he therefore had to regard cases such as Formby v Barker as wrongly decided.116 An alternative, and more persuasive, analysis is that those cases demonstrate the weakness of Stone’s model: it fails to distinguish between those initial duties which are protected as equitable property rights, and those which are not. For example, the approach taken by courts to promises restricting the use of chattels117 and to contractual licences of land,118 set in the second decade of the nineteenth century and continuing today, demonstrates that a successor in title’s knowledge of an initial promise relating to the use of property

112 See eg F Maitland, Equity (Cambridge, CUP, 1909), esp chs 9–11; H Stone, ‘The Nature of the Rights of the Cestui Que Trust’ (1917) 17 Columbia Law Review 467. 113 See eg R Chambers, An Introduction to Property Law in Australia, 2nd edn (Sydney, Lawbook Co, 2008) [13.90]; L Smith, ‘Trust and Patrimony’ (2008) 38 Revue Générale de Droit 379; B McFarlane, The Structure of Property Law (Oxford, Hart Publishing, 2008); B McFarlane and R Stevens, ‘The Nature of Equitable Property’ (2010) 4 Journal of Equity 1. 114 This is the expression used by S Gardner, ‘The Proprietary Effect of Contractual Obligations under Tulk v Moxhay and de Mattos v Gibson’ (1982) 98 LQR 279, 317. 115 Stone (n 112). 116 See H Stone, ‘The Equitable Rights and Liabilities of Strangers to a Contract’ (1918) 18 Columbia Law Review 291, 312–13. 117 See eg Taddy & Co v Sterious & Co [1904] 1 Ch 354; Barker v Stickney [1919] 1 KB 121 (CA). 118 See eg King v David Allen & Sons [1916] 2 AC 54 (HL).

Tulk v Moxhay 227 is not sufficient to give the promisee protection against the successor. As Gardner has noted, the limits placed by the courts on the content of equitable property rights makes clear that the ‘raw doctrine’ cannot be used to allow any duty relating to property to bind a party who later acquires that property with notice of the initial duty.119 To that extent, the limits later placed on Tulk demonstrate that, ultimately, the decision could not escape from the reasoning in Keppell v Bailey: it is for the courts, not the parties, to decide which duties are capable of binding successors, even successors with notice of those duties. So far, then, the legal story of Tulk demonstrates two key points: equitable property rights depend on the extension of an initial duty to a successor of the party initially bound; but not all duties relating to property give rise to equitable property rights. How, then, are we to decide which duties are to produce such rights? It is at this point that Tulk can no longer be used to make general conclusions about the nature of equitable property rights; indeed, it would be dangerously misleading to do so. For the development of the doctrine in Tulk can best be seen as an attempt by the courts to match the content of the equitable property right (that is, the nature of the initial promise) to the practical role performed by that right. In other words, the limits on the content of the right are dictated by the policy concerns which led to the initial recognition of the right. We have seen that those policy concerns are evident before, in and after Tulk. In Whatman v Gibson, Shadwell V-C noted the practical importance to each proprietor of a house in the Ramsgate building scheme of ‘having all the neighbouring houses used in such a way as to preserve the general uniformity and respectability of the row’.120 In Tulk itself, Lord Cottenham noted that, in the absence of a power to restrain future use when selling land, ‘it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless’.121 In Nisbet & Potts’ Contract, Cozens-Hardy LJ, justifying the binding effect of a restrictive covenant on a squatter, stated that ‘[t]he value of estates in the neighbourhood of London and all large towns, and the amenity of those estates, depend almost entirely upon the continuance of the mutual restrictive covenants affecting the user and enjoyment of property.’122 These statements support Gardner’s suggestion that the development of the Tulk doctrine consisted of ‘the adaptation of the doctrine to the particular object of a local law for the protection of amenity’.123 It is of course possible to question the benefits of allowing such ongoing restrictions to be

119 120 121 122 123

Gardner (n 114) 317–20. (1838) 9 Sim 194, 207; 59 ER 333, 338. (1848) 2 Ph 774, 777; 41 ER 1143, 1144. [1906] 1 Ch 386 (CA) 409. Gardner (n 114) 310.

228 Ben McFarlane placed on the use of land. Heller, for example, has discussed the problems attendant on an ‘anti-commons’, a situation where a number of people each have a separate right to prevent others from making a particular use of land.124 Indeed, the deplorable state of the Leicester Square garden for much of the nineteenth century provides a clear example of the ‘tragedy of the anti-commons’. Heller does, however, recognise the positive externalities that may be produced, in the right circumstances, by restrictive covenants: in a case such as Whatman, for example, a number of residents may benefit from the covenants imposed in a building scheme, and thus what one might call a ‘comedy of the anti-commons’125 may result. From an economic perspective, the aim is to strike the right balance, so that the rules as to which duties have binding effect will, overall, allow for the increased value of benefitted land to outweigh the burdens imposed on other land. In particular, it is worth noting that a reason generally given against the recognition of new burdens on land is the fact that the sale of land may therefore be made more difficult. In contrast, the possibility of imposing a binding restrictive covenant could be a crucial factor in the willingness of an owner of a large plot of land to sell parts of that land; the recognition of the restrictive covenant as an interest in land may thus, consistently with one of the principal aims of property law legislation in the nineteenth century, have facilitated the transmission of land. This is not to suggest that the judges, in refining the rules as to when a covenant may create an equitable property right, attempted to make such economic calculations. It may be the case that the recognition of a new equitable interest in land was based in part on the need to cater for a common practical aim of vendors of land. Certainly, the Third Report of the Royal Commissioners into the Law of Real Property stated that covenants attempting to limit the future use of land were of ‘frequent occurrence’;126 the popularity of such agreements may also be seen by the fact that, in 2005, Land Registry estimated that 79 per cent of registered freehold titles were subject to at least one restrictive covenant.127 A desire to give effectiveness to popular arrangements may be seen as an influence in other areas of equity, such as the relative liberalisation of certainty tests to discretionary trusts128 and the recognition of floating charges as capable of

124 M Heller, ‘The Tragedy of the Anticommons: Property in the Transition from Marx to Markets’ (1998) 111 Harvard Law Review 621. 125 The phrase ‘comedy of the commons’ was coined by C Rose, ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’ (1986) 53 University of Chicago Law Review 711, in response to G Hardin’s classic ‘The Tragedy of the Commons’ (1968) 162 Science 1243. 126 Third Report (n 29) 54. 127 Law Commission CP No 186 (2008), App A: at the time, 13,081,491 of 16,643,383 registered freehold titles were subject to a restrictive covenant. 128 See eg McPhail v Doulton [1971] AC 424; Re Baden (No 2) [1972] 2 All ER 1304.

Tulk v Moxhay 229 binding third parties;129 it may also have a role to play in the future, when current overage arrangements are put under greater scrutiny. The direct use of a particular policy concern to justify the existence, nature and operation of an equitable property right is, however, unusual. As a result, restrictive covenants are an unusual form of equitable property right. They differ from other equitable property rights in three key ways. First, the restrictive covenant can exist only in relation to land: a duty not to use a chattel in a particular way does not create an equitable property right.130 It might be said that, for example, an equitable lease or equitable easement shares that feature. In those cases, however, the source of the equitable property right is a party’s duty to grant a recognised common law property right, and the common law rules ensure that such rights can exist only in relation to land. In contrast, the limitation of restrictive covenants to land is the result of an independent equitable rule. Secondly, a restrictive covenant can be held only by a party who also holds a right in land that benefits from the duty imposed by the covenant. It might be said that an equitable easement shares this feature, but again, that requirement flows from a condition imposed on the content of the legal property right, not an independent equitable rule. Thirdly, as shown by Re Nisbet & Potts’ Contract,131 a restrictive covenant can impose a duty on a third party even if that party is not a successor in title to the initial promisor. This is not the case with other forms of equitable property right, such as the right of a beneficiary under a trust.132 Each of these features of a restrictive covenant may be explained as a consequence of the policy behind the recognition of such rights; but it is the fact that the content of such rights has been so shaped that gives restrictive covenants their anomalous status. Indeed, the conceptual oddity of restrictive covenants as a form of equitable property right has been consistently remarked on by commentators. In 1909, for example, Jolly’s view, having considered a number of possible conceptual bases, was that ‘[t]he equitable burden created by a restrictive covenant must therefore be regarded as sui generis’;133 the most recent edition of Preston & Newsom similarly concludes that ‘[a]s a matter of theory it is difficult to say exactly

129 See eg Re Panama, New Zealand and Australian Royal Mail Co (1870) 5 Ch App 318; Re Colonial Trusts Corporation, ex p Bradshaw (1879) 15 Ch D 465. 130 See eg Taddy & Co v Sterious & Co [1904] 1 Ch 354; Barker v Stickney [1919] 1 KB 121 (CA). 131 [1906] 1 Ch 386 (CA). 132 See eg The Lord Compton’s Case (1587) 3 Leo 197, 74 ER 629; Chudleigh’s Case (1595) 1 Co Rep 113b, 76 ER 261; MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675 (CA). 133 W Jolly, Restrictive Covenants Affecting Land (London, Stevens & Sons, 1909) 17.

230 Ben McFarlane what place restrictive covenants occupy in the legal scheme of things … In practice, they should be treated as sui generis.’134 One way to understand the anomalous nature of restrictive covenants is through a comparison with the classic example of an equitable property right: the right of a beneficiary of a trust. As discussed in section B(2) above, one of Sugden’s arguments in favour of the binding effect of freehold covenants on third parties consisted of an analogy with the vendor– purchaser constructive trust. One difficulty with this analysis was pointed out by Roundell Palmer, counsel for Moxhay, in Tulk v Moxhay itself. In the case of the vendor–purchaser constructive trust, a promised act by the covenantor remains unperformed, as no conveyance has been made. In recognising an equitable property right, a court of equity can therefore latch on to this duty to transfer a common law property right. In contrast, in Tulk v Moxhay itself, Tulk’s argument was that the promise made by Elms in the 1808 conveyance immediately gave Tulk a right capable of assertion against Moxhay, even though there was no further conveyance to anticipate.135 Indeed, it can further be argued that, in the vendor–purchaser constructive trust, the vendor does not come under a contractual duty to transfer land to the purchaser; he comes under a duty to transfer his right to the land. The subject-matter of the trust is therefore the vendor’s right to the land, rather than the land itself. A similar analysis applies in all trusts: the essence of the trust is that a trustee is under a duty in relation to a specific right.136 It may further be argued that this need for the initial duty to relate to a specific right may be used as a general, conceptual test for existence of an equitable property right.137 On this view, the anomalous nature of the restrictive covenant depends on the fact that it fails the general test applied in the recognition of equitable property rights. As noted by Stone, the duty of the initial promisor relates directly ‘to the physical user of the land’ and not to a specific, free-standing right of the promisor.138 In other words, the restrictive covenant gives its holder a right in relation to the land, rather than a right in relation to a right of the party initially bound.139 In this important way, the restrictive covenant is thus closer to a legal property right. This is perhaps no surprise, given the decisive influence of Lord Jessel MR’s analysis in

134 G Newsom (ed), Preston & Newsom’s Restrictive Covenants Affecting Freehold Land, 9th edn (London, Sweet & Maxwell, 1998) 1–12. 135 (1848) 11 Beav 571, 581; 50 ER 937, 942. 136 W Swadling ‘Property’ in AS Burrows (ed), English Private Law, 2nd edn (Oxford, OUP, 2007) 4-140; McFarlane and Stevens (n 113). 137 For further detail, and refinements of this test, McFarlane and Stevens (n 113); and McFarlane (n 113) Part D2. 138 Stone (n 116) 308. 139 For more detailed discussion of this point, see McFarlane and Stevens (n 113) 13–15.

Tulk v Moxhay 231 London & SW Rwy Co v Gomm140 that the doctrine in Tulk was best seen as a development of either one of two sets of common law rules. It may be argued that whilst the content of equitable property rights can be defined by a conceptual test, there is no such test to the content of legal property rights, which may be justified only consequentially, on policy grounds.141 The influence of common law may thus be seen both in the policy-based development of restrictive covenants and in their effect, normally denied to equitable property rights, of binding anyone who comes to the burdened land, irrespective of whether that party is a successor in title to the initial promisor. This analysis should not be taken to mean that the decision in Re Nisbet & Potts’ Contract, allowing a restrictive covenant to bind a squatter, is necessarily a bad one—the policy concerns behind the recognition of restrictive covenants, discussed above, certainly justify their binding effect on a third party who succeeds to the land of the initial promisor, even if he does not succeed to any right of that promisor. It does mean, however, that it would be dangerous to draw conclusions as to the general nature of equitable property rights from a case such as Re Nisbet & Potts’ Contract. For example, the recent Court of Appeal decision in Shell UK Ltd v Total UK Ltd142 held, for the first time, that a beneficiary may be able to recover damages for consequential loss suffered by the beneficiary (but not the trustee) as a result of a stranger’s interference with trust property. As a number of commentators have noted,143 the decision is problematic and appears to be contrary to previous authority.144 In particular, by equating the position of a beneficiary with that of a party holding an unencumbered legal property right,145 the Court of Appeal seems to ignore the distinctive way in which beneficial interests bind third parties: by identifying a right in the hands of the third party which is the same as, or a product of, the right initially held on trust. It would be unfortunate if a decision such as that in Re Nisbet & Potts’ Contract, based on the special nature of the restrictive covenant, were used to buttress the decision in Shell UK.

140

(1882) 20 Ch D 562, 583. See McFarlane (n 113) 137–40; and B McFarlane, ‘The Numerus Clausus Principle and Covenants Relating to Land’ in Bright (ed), Modern Studies in Property Law, vol 6 (Oxford, Hart Publishing, 2011). 142 Shell UK Ltd v Total UK Ltd [2011] QB 86 (CA). 143 See eg P Turner, ‘Consequential Economic Loss and the Trust Beneficiary’ [2010] CLJ 445; K Low, ‘Equitable Title and Economic Loss’ (2010) 126 LQR 507. 144 Such as Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 (HL). See too the cases cited in n 132 145 [2011] QB 86 (CA) [132]. 141

232 Ben McFarlane E. CONCLUSION

We have seen that Tulk v Moxhay cannot take sole credit for the existence of the current garden in Leicester Square, nor for the restrictive covenant’s current status as an equitable interest in land. The judicial interpretation and development of ‘the doctrine in Tulk v Moxhay’ suggests that, from the very start, the decision was a conclusion in search of a reason. One explanation for equity’s intervention, suggested by Lord Cottenham’s judgment, was that Moxhay had acquired his fee simple with notice of Elms’s 1808 promises. This rationale was inconsistent with the approach which had been taken in Keppell v Bailey, and has been rejected by later courts as an unjustifiable expansion of third party liability. Tulk may thus remind us of the original purpose of a landmark, as establishing a boundary and thus signifying to those who reach it that they have gone too far and strayed into forbidden territory. A second explanation for equitable intervention, again suggested by Lord Cottenham’s judgment, was that Elms’s 1808 promises had created an equity, attached to the Leicester Square garden. At one level, Tulk thus provides a useful reminder that equitable property rights depend on an extension of an initial duty to a third party. The first difficulty, however, is that we need to specify precisely which duties are allowed to count as equitable property rights and thus have this special effect on third parties. It is therefore no surprise that later cases had to fill in this gap, by defining precisely when a promise relating to the use of land creates an equitable property right. This process was complicated by the second difficulty of the ‘equity attached to the property’ rationale: equitable property rights, in general, attach not to physical things but to other rights. It has been suggested that this feature of equitable property rights provides the test needed to distinguish those duties that create mere personal rights from those that give rise to equitable property rights: we need to ask if the duty relates to a particular right of the party owing the duty. A promise that simply relates to the use of land, rather than to any specific right, fails this test. This explains why, for example, an equitable property right is created by neither a contractual licence of land nor a promise relating to the use of a chattel. In establishing the nature of the ‘equity’ in Tulk, therefore, the courts, in effect, adopted a consequentialist rather than conceptual approach, moulding the content of the equitable interest to the policy justifying its recognition. The most significant result of this consequentialist approach was that the restrictive covenant betrayed its equitable origins and came to resemble, in important respects, a legal property right. If the reforms recently proposed by the Law Commission are implemented then this metamorphosis, in England and Wales at least, will soon be completed. The equitable ‘doctrine of Tulk v Moxhay’ will be dispelled from registered land: a Tulk transferring his registered freehold title to an Elms, but wishing to control the

Tulk v Moxhay 233 future use of that land, will have to acquire a legal interest in Elms’s land, complying with the necessary formality requirements in order to do so. This change will allow for the implementation of a particular policy to which, on any model, equitable property rights are poorly suited: the imposition of positive burdens on at least some successors in title. As a result, such successors of our future Elms may be placed under a positive common law duty to maintain a garden. The seeds may have first grown in equity, but the full flowering will take place only in the more conducive setting of common law.

8 Prince Albert v Strange (1849) LIONEL BENTLY*

A. INTRODUCTION

A

CCORDING TO AWB Simpson,1 the concept of a ‘leading case’ was ‘invented’ during the mid-nineteenth century, with the first published collection of ‘leading cases’ being John Willliam Smith’s A Selection of Leading Cases in Various Branches of the Law in 1837.2 Prior to this, the standard legal publications were either law reports or treatises containing syntheses of the law of particular areas. The birth of the case-book was not straightforward: doubts surrounded the commercial viability,3 as well as the legality,4 of this new model of publication. Nevertheless, the formula—40 or so carefully selected cases in a single portable volume—proved a great success, spawning a host of imitators in Constitutional Law,5 Real

* This chapter emanates from work done preparing Gurry on Confidence: The Law of Confidentiality (Oxford, OUP, 2012). I am grateful to my co-authors, Tanya Aplin, Phill Johnson and Simon Malynicz, as well as to OUP, for allowing me to draw upon that here. 1 AWB Simpson, Leading Cases in the Common Law (Oxford, Clarendon Press, 1995) ch 1 (‘The Study of Cases’). 2 JW Smith, A Selection of Leading Cases in Various Branches of the Law (London, Maxwell, 1837). 3 As is clear from the preface, the book was something of an experiment—the author promising a second volume if the first turned out to be successful. It did, and the second volume containing a further 33 cases was promptly issued in 1840. Smith’s book was widely praised. According to Samuel Warren, ‘Memoir of the Late John William Smith, of the Inner Temple, Barrister-at-Law’ (1847) 61 (376) Blackwood’s Edinburgh Magazine 129, 144–45, ‘immediately upon its appearance, [the book] arrested the attention of all persons competent to form an opinion on the subject, as a sterling and permanent addition to the highest class of legal literature’. 4 Saunders and Benning v Smith and Maxwell (1838) 3 My & Cr 710, 40 ER 1100. 5 EC Thomas, Leading Cases in Constitutional Law Briefly Stated (London, Stevens & Haynes, 1876); 2nd edn (London, Stevens & Haynes, 1885); 3rd edn (London, Stevens & Haynes, 1901); 4th edn by CL Attenborough (London, Stevens & Haynes, 1908); 5th edn by Hugh Bellot (London, Sweet & Maxwell, 1924); 6th edn by Hugh Bellot (London, Sweet & Maxwell, 1927); 7th edn by E Slade (London, Sweet & Maxwell, 1934); 8th edn by O Hood Phillips (London, Sweet & Maxwell, 1947). In 1952, O Hood Phillips started a new series Leading cases in constitutional law/Based on ‘Thomas & Hood Phillips’ (London, Sweet & Maxwell, 1952) which went into a second edition in 1957, a third edition in 1967, a fourth in

236 Lionel Bently Property6 and Equity,7 each of which became ‘well-known and deservedly standard works’,8 and each with multiple editions. While it is true that the publication of books of ‘leading cases’ did not represent the first use of the term,9 in this period the notion of ‘leading case’ took on the status of a proper noun, with each word capitalised. The proliferation of these books and their widespread use placed the idea of ‘leading cases’ right in the centre of legal education and legal thought. Around the same time as books of leading cases started to be published,10 the Vice-Chancellor, Knight Bruce, and the Lord Chancellor, Lord Cottenham, decided Prince Albert v Strange,11 granting the Prince Consort injunctive relief to prevent the publication of a catalogue describing engravings he and Queen Victoria had made and circulated only amongst family and friends. While the case never featured in any of the nineteenth-century case-books (the subject lying outside the core concerns of the areas where such case-books emerged),12 as we shall see, Prince Albert v Strange has frequently been described as a ‘leading case’. In this chapter, I want to explore the circumstances in which such designation has been used for the case. More specifically, the chapter examines the successive re-presentation of the case, first as a case of no great legal significance and then, in turn, as a leading case in three different areas of law: copyright, breach of confidence and the protection of informational privacy.

1973 and a fifth in 1979. Following the death of Owen Phillips in 1986, Paul Jackson authored a sixth edition in 1988. 6 OD Tudor, Selection of Leading Cases on Real Property, Conveyancing, and the Construction of Wills and Deeds (London, Butterworths, 1856); 2nd edn (London, Butterworths, 1863); 3rd edn (London, Butterworths, 1879). Tudor died in 1887, and a fourth edition was issued by new editors in 1898 (London, Butterworths, 1898). 7 F White and O Tudor, A Selection of Leading Cases in Equity (London, W Maxwell, 1849–50), which went into six editions while White and Tudor were alive and a further three thereafter. The Preface explains that the plan for the book was suggested by ‘the very able volumes of the late Mr JW Smith which contain a selection of the Leading Cases principally taken from the Common Law Reports’. 8 J Haynes, The Student’s Leading Cases (London, Stevens, 1878) vii. 9 Simpson (n 1) (at 5, fn 10) acknowledges that the term appeared in cases going back as early as 1612. 10 By coincidence, one of the counsel for Strange, Samuel Warren, was the inspiration for John William Smith’s decision to attempt such a case-book. 11 Prince Albert v Strange (1849) 2 De G & Sm 652, 64 ER 293; (1850) 13 Jurist (OS) 45 (Knight Bruce V-C); 1 Mac & G 25, 45 ER 1171; 1 H & Tw 1, 47 ER 1302; (1850) 13 Jurist (OS) 109 (Lord Chancellor). 12 White and Tudor, for example, never sought to include it in their leading cases in Equity. That said, one reviewer did complain that the 4th edn of G Goldsmith, The Doctrine and Practice of Equity, or a Concise Outline of Proceedings in the High Court of Chancery (London, Benning & Co, 1849) failed to refer to the case ‘and, indeed, the other cases on copyright which have been published in the reports since the third edition of the work’: (1849) 11 Law Mag Quart Rev Juris (ns) 321.

Prince Albert v Strange 237 The changing way in which subsequent generations of lawyers have repositioned Prince Albert v Strange—its ‘legal historiography’—highlights a contradiction in the work done by the concept of a ‘leading case’. If the idea of the ‘leading case’ assumes a historical origin from which subsequent law is said to emerge, the legal historiography exposes that very instability of those historical materials as a constraint on interpretation, revealing them to be, in fact, a resource for constant reinterpretation. The status of a case as ‘leading’ is conferred only afterwards as a response to the very changes that the idea of a ‘leading case’ purports to deny. Moreover, if the idea of a leading case assumes that the meaning of the case—its ‘principle’—can be discovered from the report itself, the legal historiography highlights that such meaning does not appear from the law report alone: the meaning of the case is (as much) the product of the environment in which the case, or its report, falls to be (re-)interpreted.

B. THE DECISION IN PRINCE ALBERT V STRANGE

Prince Albert v Strange concerned the publication of a 30-page catalogue which described 63 (or so) of the etchings of Prince Albert and Queen Victoria. The catalogue had been compiled by one of the defendants, the journalist Jasper Tomsett Judge,13 to accompany an exhibition of prints taken from the royal press which Judge was proposing to hold. The 63 prints themselves had been acquired by Judge, probably (though this was not proved or admitted) for £5,14 (perhaps indirectly, via one Whittington) from Middleton,15 an employee of John Brown of Windsor, whom the Royals had entrusted to make the prints. Fifty-one copies of the catalogue, which bore Victoria’s coat of arms, and contained brief descriptions and

13 Jasper Judge had something of a history of upsetting the upper classes. In 1825, as a consequence of his writings as editor of The Cheltenham Journal, he was horsewhipped by one of his antagonists, and brought an action for damages, being awarded £500: Jasper Judge, The Trial of Judge versus Berkeley and other, Tried at Hereford on Thursday, August 4, 1825 (Cheltenham, S Harper, 1825). 14 The various negotiations leading to Judge’s purchase from Middleton in August 1848 are described in Judge’s Answer, 21 December 1848, C14/778/A70. 15 The bill of complaint refers to Middleton having taken the etchings and given them to Whittington, from whom Judge purchased them.

238 Lionel Bently appraisals of the etchings, had been printed by William Strange.16 An example of one entry was as follows:17 No 54. Two French Women, drawn and etched by Prince Albert, after E Landseer. January 10, 1842. Very extraordinary talent is here displayed by His Royal Highness. It is equal to the best of the Prince’s productions, and would be highly creditable even to the most eminent artist of the present day.

Possibly out of courtesy,18 William Strange, the publisher, sent a copy of the catalogue to the Palace, and Prince Albert responded immediately by seeking injunctive relief preventing its exhibition and publication.19 This

16 William Strange (1801–71), a printer at 21 Paternoster Row, was a significant publisher of cheap literature for the new urban working classes. His most famous publication was the weekly comic journal, Figaro in London, which is said to have had a circulation of some 70,000 in 1832. He was involved in the resistance to the newspaper stamp and other ‘taxes on knowledge’ that took place during the early 1830s, and also in various actions for libel and infringement of copyright. See Sewell v Strange, The Morning Chonicle (22 April 1839) (libel); Leader v Strange, The Era (2 December 1849) (infringement of music copyright); The Morning Post (24 February 1851) (referring to action brought against Strange for pirating the designs of covers of the Illustrated London News). Strange was insolvent in 1829, 1835, and 1840, and once again, as a consequence of the legal costs in Prince Albert v Strange: The Morning Post (4 November 1829); The Morning Post (3 November, 1835); The Examiner (11 January, 1851); In Re Strange (Court of Bankruptcy), Morning Chronicle (24 February 1851); The Morning Post (24 February 1851); The Morning Post (12 November 1853); The Morning Chronicle (14 November 1853). See, D Magee, ‘William Strange’, in Dictionery of Nineteenth-Century Journalism in Great Britain and Ireland (London: Academia Press, 2009) 606–07; and, more generally, Patricia Hollis, The Pauper Press: A Study in Working-Class Radicalism of the 1830s (OUP, 1970) 127, 128, 200, 201, 314; Louis James, Fiction for the Working Man, 1830–1850 (OUP, 1963); I McCalman, Radical Underworld: Prophets, revolutionaries and pornographers in London, 1793-1840 (Oxford: Clarendon, 1993), 219–21; J Phillips, ‘Prince Albert and the Etchings’ [1984] European Intellectual Property Review 344. In 1849, William Strange sold his business to his son, William Strange Junior, who continued in much the same vein as his father had done: publishing unstamped papers (before the stamp was repealed in 1855), printing obscene literature (such as Paul Pry and The Women of London, for which he received a three-year jail sentence in 1857), infringing copyright (Williams v Sheard, The Morning Post (24 December 1849), and tripping in and out of bankruptcy. See The Morning Post (21 September 1851); The Era (26 November 1854); The Morning Chronicle (11 May 1857). According to evidence in a case brought by William Strange Senior against a printer who had mistakenly sent material to William Strange Junior, father and son were no longer on good terms in 1852: see Strange v Savill, The Morning Chronicle (11 June 1852). 17 The comments in the catalogue were complimentary. Not all commentators were so appreciative: Reynold’s Weekly Newspaper (17 November 1850) (referring to Albert’s ‘wretched scrawls of etchings’). 18 See counsel’s submission in The Times (14 December 1848) 6. Copies were sent to six or seven other persons ‘of high rank and intimately associated with the court’ (including the Duchess of Kent, the King and Queen of Belgium, the Lady in Waiting): The Morning Chronicle (14 December 1848). But in Romilly’s submissions, the defendants sent the catalogue either in the hope that it would be ignored, so that they might argue that the Royal couple had assented to the exhibition, or so that, in order to avoid the invasion of their privacy, they would pay Strange and Judge not to hold the exhibition. The latter interpretation seemed plausible to Knight Bruce V-C: see (1849) 2 De G & Sm 652, 688; 64 ER 293, 308. 19 It is notable that Judge and Strange had collaborated in a number of publications concerning the royal household and royal affairs: JT Judge (ed), Royal Correspondence: The

Prince Albert v Strange 239 was granted ex parte,20 and in due course Judge and Strange sought to have the injunction lifted, at least as regards publication of the catalogue.21 Lengthy hearings were held first before Vice-Chancellor Knight Bruce and then, on appeal, before the Lord Chancellor. Neither the motion nor the appeal was successful, and later in 1849 Knight Bruce V-C made the injunction perpetual. Knight Bruce V-C first considered the case over the Christmas recess, and on 12 January 1849 delivered a judgment upholding the injunction. The bulk of his reasoning involved an exploration of the principles underpinning the case law on rights in manuscripts and unpublished writings, the scope of the rights conferred on the authors of such works and the extent to which the principle by reference to which such a right had been developed extended beyond literary subject matter to encompass engraving. While he acknowledged that in Donaldson v Beckett,22 the House of Lords had held that published works were protected under the Statute of Anne or not at all, he took the view that the decision did not impact upon the proposition that at common law the author of a book has the sole right of first publishing the work, a proposition which he described as ‘generally or universally agreed to be correct’.23 Having reviewed the authorities, Knight Bruce V-C went on to recognise the extensive breadth of the right to object to unauthorized publication: it included, in his view, a right to prevent translation, abridgment, summary

Private Letters of Queen Victoria and Louis Philippe, On Political and Domestic Subjects (London, W Strange, 1848) (a compilation of translations by Judge’s son, JAF Judge, of correspondence salvaged following Louis-Philippe’s rapid departure from the Tuileries in the face of the 1848 revolution, and previously published in French by Taschereau); JT Judge, Sketches of Her Majesty’s Household (London, W Strange, 1848) (a list of positions and salaries paid to members of the royal household); JT Judge, Court Jobbery: Or The Black Book of the Palace, Being An Analytical List of All the pensions Granted by the Queen (London, W Strange, 1848). A host of other books by Judge, to be published by Strange, are advertised in Royal Correspondence. See Phillips (n 16) (exploring the background to the case, in particular, Jasper Judge’s activities over the preceding decade as a highly critical reporter on royal affairs). Phillips’s view that Judge was sued because of previous criticisms he had made of the Royal household was shared by some contemporaries: Lloyd’s Weekly Newspaper (22 July 1849). Judge’s previous activities are explored at length in C Jerrold, The Married Life of Queen Victoria (London, G Bell, 1913) ch 10. 20 Against Strange on 20 October 1848; and extended against Judge on 6 November. See Daily News (7 November 1848); The Examiner (11 November 1848). Jasper Judge sent a letter to The Era (19 November 1848), in which he asked that readers refrain from forming a view as to his behaviour until he had had an opportunity to vindicate his character. 21 The Times (14 December 1848) 6 reported Knight Bruce as saying that when granting the ex parte order, ‘he had serious doubts regarding the catalogue’. See also Freeman’s Journal and Daily Commercial Advertiser (15 December 1848); The Morning Chronicle (14 December 1848). But, by admitting that the injunction against exhibition was rightly granted, counsel for the defendant effectively limited the scope of their arguments to the extent of the plaintiffs’ rights, rather than to their existence. 22 Donaldson v Beckett (1774) 2 Bro PC 145, 1 ER 837. 23 (1849) 2 De G & Sm 652, 691; 64 ER 293, 310.

240 Lionel Bently or ‘even a review’ of the unpublished matter. This, he acknowledged, was much wider than the rights of an author in a work which had been lawfully published, which could legitimately be ‘translated, abridged, analysed, exhibited in morsels, [or] complimented’.24 Then he considered the basis of such rights, with a view to determining whether they were restricted to ‘literary subjects’. He found the basis in the common law protection of ‘property’ through rules that were ‘capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce’. That notion was based on labour, so that25 wherever the produce of labour is liable to invasion in an analogous manner, there must … be a title to analogous protection and redress … To consider, then, the case of mechanical works, or works of art, executed by a man for his private amusement or private use; whatever protection these, or some of these, may have by Act of Parliament, they are not, I apprehend, deserted by the common law.

Consequently, etchings that had been kept unpublished fell to be protected, and the protection was broad enough to justify a prohibition on the description of the etchings. Strange appealed. Lord Cottenham, the Lord Chancellor, confirmed the decision of the Vice-Chancellor but, in contrast, relied on two distinct grounds.26 First, like Knight Bruce V-C, the Lord Chancellor recognised that the plaintiff had a common law ‘property right’ in the unpublished etchings,27 and that the ‘exclusivity’ implicit in such a property encompassed the actions of the defendant. Lord Cottenham LC said he considered that the ‘object and effect’ of ‘a catalogue, list or description’ of the etchings was exactly the same as the issuing or display of copies, both being ‘means of communicating knowledge and information’.28 The principle underpinning the (accepted) prohibition on copying or exhibition thus would

24

Ibid, 693; 311. Ibid, 697; 312. He referred to the statement of Yates J in Millar v Taylor (1769) 4 Burr 2303, 98 ER 201, dissenting, that ‘the immorality of pirating another man’s invention is full as great, as that of purloining his ideas’ (at 2386–87, 246). 26 1 Mac & G 25, 45 ER 1171; 1 H & Tw 1, 47 ER 1302 (Lord Chancellor). (Ibid at 42, 1178, he stated: ‘It was said by one of the learned counsel for the defendant that the injunction must rest upon the ground of property or breach of trust; both appear to me to exist.’) See also 1 H & Tw 21, 47 ER 1310. Lord Cottenham LC began, in fact (at 1 Mac & G 40–41, 45 ER 1177; 1 H & Tw 19, 47 ER 1309), by referring to a third ground for relief: the misrepresentation made in the catalogue that the exhibition had been approved of by the Royals, in so far as they supplied facsimiles of their signatures. But as the injunction extended to publication of any catalogue, this ‘wrong’ was insufficient of itself to support it. 27 While both judges accepted that such right existed in unpublished works of art, as well as literature, it is not clear they agreed as to other subject matter to which the right related. Knight Bruce V-C clearly thought the right extended to mechanical works and medical recipes (and thus would cover what we consider today to be trade secrets), but Lord Cottenham LC talked of the ‘property in the author or composer of any work, whether of literature, art or science’: 1 H & Tw 21, 47 ER 1310; 1 Mac & G 42, 45 ER 1178. 28 1 Mac & G 25, 43; 45 ER 1171, 1178; 1 H & Tw 1, 22; 47 ER 1302, 1310. 25

Prince Albert v Strange 241 justify prohibiting the publication of a description or catalogue. This right extended in scope beyond the rights conferred by statute—copyright—in published works. More specifically, the ‘cases upon abridgment, translation, extracts and criticisms from published works, have no reference whatever to the present question’.29 Lord Cottenham LC, however, added a second basis for injunctive relief. ‘This case,’ he explained, ‘by no means depends solely upon the question of property, for breach of trust, confidence, or contract, would of itself entitle the Plaintiff to an injunction’.30 He relied on three authorities: Duke of Queensberry v Shebbeare,31 Abernethy v Hutchinson32 and Tipping v Clarke,33 as well as the obiter dictum of Lord Eldon LC in Wyatt v Wilson.34 Given that the court accepted that the Royals had kept the etchings private, in the absence of any explanation from the defendant as to how he came by the etchings legitimately, the court concluded that ‘the catalogue and the descriptive and other remarks therein contained, could not have been compiled or made, except by means of the possession of the several impressions of the etchings surreptitiously and improperly obtained’.35 The impressions must have originated in ‘a breach of trust, confidence, or contract’. The evidence suggested, in fact, that it was the employee of Brown, the printer, who had committed the original breach; but even if a person to whom Albert or Victoria had given a copy had passed it on to Strange or Judge, that would ‘equally be a breach of trust, confidence, or contract’.36 As far as Strange and Judge were concerned, the case did not end with the Lord Chancellor’s judgment.37 Judge sought to raise funds to pay for his costs (which he indicated amounted to between £1,500 and £2,000) from a lecture tour,38 on which he continued to proclaim his innocence. He stated that the images had circulated freely around Windsor and Eton long before he purchased them, and that he and Strange had not planned to exhibit the etchings without the consent of the Royals. Judge made similar claims in a book published by Strange, in which Judge presented himself as the victim 29

Ibid. 1 Mac & G 25, 44; 45 ER 1171, 1178; 1 H & Tw 1, 23; 47 ER 1302, 1311. 31 Duke of Queensberry v Shebbeare (1758) 2 Eden 329, 28 ER 924 (Lord Keeper Robert Henley, later Earl of Nothington and Lord Chancellor). 32 Abernethy v Hutchinson (1824–25) 1 H & Tw 28, 47 ER 1313; (1825) LJ Ch (OS) 209. 33 Tipping v Clarke (1843) 2 Hare 383, 67 ER 157. 34 ‘If one of the late king’s physicians had kept a diary of what he heard and saw, this Court would not, in the king’s lifetime, have permitted him to print and publish it.’ Quoted at 1 Mac & G 25, 46; 45 ER 1171, 1179; 1 H & Tw 1, 25; 47 ER 1302, 1311. 35 1 Mac & G 25, 44; 45 ER 1171, 1178; 1 H & Tw 1, 23; 47 ER 1302, 1311 (emphasis added). 36 1 Mac & G 25, 45; 45 ER 1171, 1179; 1 H & Tw 1, 24; 47 ER 1302, 1311. 37 Rumours circulated that Judge and Strange were contemplating indicting Prince Albert for perjury, and that Judge might exhibit the engravings in the United States: The Belfast Newsletter (16 February 1849). 38 Liverpool Mercury (17 April 1849). 30

242 Lionel Bently of a malicious persecution by the Royal household.39 In due course, the injunction was made perpetual, and Judge was ordered to deliver up the etchings.40 The Crown did not ask for costs against Strange, but (despite coming to court in forma pauperis) costs were ordered against Judge. Knight Bruce V-C had no doubt where justice lay:41 [Judge’s] case seemed to him to be one of entire and undissembled dishonesty. It would be a slur on jurisprudence, an insult to the administration of justice in this country, if such a breach of trust, to use the mildest phrase, should be without remedy … [H]is case seemed to him to fail alike in law, equity, truth and common honesty.

According to Judge, these costs amounted to £300, and the Prince’s generosity in not asking Strange to pay meant that Judge alone bore Prince Albert’s costs.42 After taxation, Judge was called on to pay £181,43 and when he failed to pay he was jailed at Reading.44 After nearly three weeks, the Queen sent Mrs Judge a cheque for £180 to enable her to pay off the solicitors’ costs that led to Judge’s imprisonment.45 As for William Strange, he and his family had left the country for France in February 1849,46 but returned in October 1850, whereupon he faced bankruptcy proceedings. His debts of over £1,574 included a debt of £570 to his solicitor, Smith.47

C. THE INTERPRETATION OF PRINCE ALBERT AS A LEADING CASE

(1) A Case of Public Interest But No Legal Significance The immediate audience for Prince Albert v Strange was the general public. As one would expect of a case concerning the Royal family, the proceedings

39 J Judge, A Statement of Facts Relating to the Proceedings in Chancery in the Case of the ‘Royal Etchings’ (London, William Strange, 1849), reviewed in Lloyd’s Weekly Newspaper (22 July 1849); The Era (12 August 1849). 40 Lloyd’s Weekly Newspaper (3 June 1849). Judge appealed: Judge, ‘To the Editor of the Satirist’, The Satirist (18 August 1849) 370. 41 John Bull (2 June 1849) 348. 42 Letter from Judge to the Editor, Lloyd’s Weekly Newspaper (12 August 1849); ditto, The Era (12 August 1849); ditto, The Northern Star and National Trades Journal (18 August 1849). 43 Judge, The Satirist (18 August 1849) 370. 44 Judge, The Northern Star and National Trades Journal (1 September 1849); The Satirist (25 August 1849) 379. Note also the editorial sympathetic to Judge at 377. 45 The Times (12 September 1849); Liverpool Mercury (14 September 1849); John Bull (15 September 1849) 585; The Era (16 September 1849) (including letter, dated 8 September 1849, from Anson, Her Majesty’s Privy Purse, to Mrs Judge). 46 Mary Judge to Her Majesty the Queen, 25 August 1849, set out in Jasper Judge, To the Editor of the Satirist, The Satirist (22 September 1849) 407; and The Northern Star (22 September 1849). 47 In Re Strange (Court of Bankruptcy), Morning Chronicle (24 February 1851).

Prince Albert v Strange 243 excited considerable popular interest. The public gallery was crammed full during the days of the hearing,48 and the case was widely reported in the popular press and magazines across the land.49 One paper reported the issue as being one to which ‘we attach more importance than the ordinary news’.50 The Leeds Mercury explained that ‘from its extreme novelty and the many nice legal points which are involved, [the case] excites the greatest interest, not only in legal circles but throughout the country’.51 But in truth, the public’s curiosity derived not from the novelty or complexity of the legal issues, so much as from the celebrity of the participants.52 The Glasgow Herald noted that while other European sovereigns were fugitives or ‘trembling on the throne’, the fact that the British Queen was concerned with protecting her privacy was evidence of ‘the healthiness of our institutions and the absolute tranquillity of our condition’.53 Jerrold’s Weekly Newspaper also favourably compared the action of the Prince with the manner in which such an affront to the monarch might be treated elsewhere in Europe, taking satisfaction from the fact that Strange and Judge were not condemned to a dungeon without trial but rather proceeded against in a court of law.54 An editorial in The Lady’s Newspaper in February 1849 also reflected on the revolutions in many European countries the previous year, taking satisfaction in the case as an illustration of the robustness of the British constitution, including the equality before the law of ‘the prince and the peasant’. The paper, nevertheless, clearly supported the Royals both in their opting, ‘like sensible people of rank and fortune’, to spend their leisure hours in ‘cultivating the fine arts’, and in the doubtless difficult decision ‘to exert a right they incontestably have, of preventing such an intrusion on their private life’.55 Writing 14 years later, one legal commentator recalled that the ‘vulgar intrusion’ on ‘royal privacy ‘had awakened much public sympathy’.56

48 Freeman’s Journal and Daily Commercial Advertiser (15 December 1848) (‘the court was extremely crowded’); The Lady’s Newspaper (10 February 1849) (on the day that the Lord Chancellor gave judgment ‘there was a very full attendance of the bar and a crowd of strangers in the court long before his lordship sat’). 49 Liverpool Mercury (31 October 1848); Caledonian Mercury (2 November 1848) (reproducing stories from the Atlas and Literary Gazette); The Preston Guardian (11 November 1848). 50 The Atlas, reprinted in the Daily News (30 October 1848). 51 Leeds Mercury (9 December 1848); The Lady’s Newspaper (9 December 1848) (an identical comment). 52 Thus, eg, the papers reprinted Prince Albert’s affidavit and the full list and description of the etchings—achieving pretty much the same level of publicity as Strange’s catalogue. See, eg, The Morning Chronicle (7 November 1848); The Standard (7 November 1848). 53 The Glasgow Herald (30 October 1848). 54 Reprinted in Manchester Times (7 November 1848). 55 The Lady’s Newspaper (3 February 1849). 56 CP Phillips, The Law of Copyright in Works of Literature and Art and in the Application of Designs (London, Stevens & Haynes, 1863) 10.

244 Lionel Bently The case also received the attention of the legal press: the editor of the Legal Observer said he considered Albert v Strange to be the only case in the previous term that was ‘calculated to excite public attention or to create … unusual interest’.57 The Law Magazine suggested the case had legal significance, arguing that ‘stripped of its adjunctive circumstances of interest derived from the exalted station of the parties engaged … [i]t would be difficult to overrate the importance of the bearing of the principle of law adopted in this case’.58 In subsequent years the case would often be referred to by legal commentators as a ‘celebrated’ case,59 and it certainly was a case with which jurists were assumed to be familiar. In 1883, Copinger would refer to the case as one of ‘peculiar interest’ because of the ‘high position of the parties’, a comment repeated in the two subsequent editions.60 Fortyfour years after the decision, one member of the Court of Appeal was able to refer in passing to Prince Albert, calling it ‘the case with which we are all familiar’.61 In the face of such public attention, it is worth noting that Lord Cottenham denied that the case was of any great legal importance. Opening his judgment, Lord Cottenham LC stated:62 The importance which has been attached to this case arises entirely from the exalted situation of the plaintiff, and cannot be referred to any difficulty in the case itself. The precise facts may not have occurred before; but those facts clearly fall within the established principles, and the application of them is not attended with any difficulty.

Had Lord Cottenham’s statement been taken at face value, one could imagine the case would have barely made an impression outside the footnotes of the legal textbooks and journals. But no one seems to have been convinced by the Chancellor’s assertion that the legal issues fell squarely within the terms of the existing law. In fact, the case seems constantly to have been in the legal textbooks in the 160 years since the decision. But, while the decision has always been regarded as important, peculiarly, the reasons for that importance have repeatedly shifted.

57 ‘Conclusion of the Term. Commencement of the Session of Parliament’ (1849) 37 Legal Observer, Digest and Journal of Jurisprudence 265, 266 (3 February 1849). 58 ‘Right of Privacy of Authors in their Unpublished Works’ (1849) 10 Law Magazine: Or Quarterly Review of Jurisprudence (ns) 321. 59 TE Scrutton, The Laws of Copyright (London, John Murray, 1883) 119, 222; B Neill, ‘The Protection of Privacy’ (1962) 25 MLR 393, 395 (calling Prince Albert ‘celebrated’); Tchenguiz v Imerman [2011] EWCA Civ, [2011] Fam 116 at [55] (Lord Neuberger MR). 60 WA Copinger, The Law of Copyright in Works of Literature and Art, 2nd edn (London, Stevens & Haynes, 1881) 11. 61 Lamb v Evans [1893] 1 Ch 218, 236 (Kay LJ). Kay LJ (1822–97) was the oldest of the three members of the court and the only one in practice when Prince Albert v Strange was decided; Bowen LJ (1835–94) and Lindley LJ (1828–1921) were the other two judges. 62 (1850) 13 Jurist (OS) 109, 111.

Prince Albert v Strange 245 (2) A Leading Case on Copyright (‘Property’) in Unpublished Works? The first occasion (that I have found) on which Prince Albert v Strange was described as a ‘leading case’ was by C Phillips in his text on copyright in works of literature and art in 1863,63 where the author observed that ‘Prince Albert v Strange may be termed the leading case on copyright before publication.’ This was reiterated in William Kerr’s treatise on injunctions in 1867,64 and by J Shortt in his 1871 treatise on the law relating to works of literature and art.65 Scrutton, who referred to the case as ‘celebrated’, covered it in the section of his book dealing with copyright in unpublished works.66 In other commentaries, if not expressly designated a ‘leading case’, Prince Albert was primarily characterised as a case on ‘common law copyright’ or ‘property in unpublished works’,67 and offered a suitably prominent place in the analysis thereof.68 That Prince Albert should be treated by commentators as a case on common law copyright is unsurprising—this was the basis of the ViceChancellor’s decision, and one of the grounds to which the Lord Chancellor had referred. But by the mid-nineteenth century there were plenty of cases on common law copyright—in conveyancing precedents,69 unpublished law reports,70 letters,71 delivered but otherwise unpublished lectures72 and performed but unpublished plays. What did commentators mean when they identified Prince Albert as a ‘leading case’ in this field? In the Preface to A Selection of Leading Cases in Various Branches of the Law (1837), John William Smith articulated some of the goals of, and ideas that underpinned, the identification of ‘leading cases’. Smith explained that the collection was targeted both at students and practitioners, revealing thus

63

Phillips (n 56) 14. W Kerr, A Treatise on the Law and Practice of Injunctions (London, Maxwell, 1867) 183 (calling Prince Albert ‘the leading case on the subject’, a phrase which is repeated in the following three editions until the chapter is eliminated on the passage of the Copyright Act 1911). 65 J Shortt, The Law Relating to Works of Literature and Art: Embracing the Law of Copyright, the Law Relating to Newspapers, the Law Relating to Contracts (London, Cox, 1871) 50. Repeated in the 2nd edn (London, Reeves & Turner, 1884) 26. 66 Scrutton (n 59) 119, 222. 67 In the supplement to his book on injunctions, CS Drewry discussed Prince Albert only under ‘unpublished works’: CS Drewry, A Supplement to The Law and Practice of Injunctions (London, Sweet, 1849) 38–39. See Scrutton (n 59) 222–23 (treating Prince Albert v Strange as a case concerning property in unpublished artistic compositions). 68 Copinger (n 60) 11–16. 69 Webb v Rose (1732), unreported but described by R Deazley, On the Origin of the Right to Copy (Oxford, Hart Publishing, 2004) 6–7. 70 Forrester v Waller (1741) unreported. 71 Pope v Curl 2 Atk 342, 26 ER 608; Thompson v Stanhope (1774) Amb 737, 27 ER 476; Gee v Pritchard, (1818) 2 Swanst 402, 36 ER 670; Palin v Gathercole (1844) 1 Coll 565, 63 ER 545 (Vice-Chancellor). 72 Cullen v Lowndes (13 December 1771) (Lord Chancellor Apsley) (injunction to prevent publication of University of Edinburgh professor’s, Dr William Cullen, lectures). 64

246 Lionel Bently that the designation had both a pedagogical function and a more pragmatic one. As to the former, the book described the difficulties facing a student who decided to learn the law by turning to the law reports:73 [H]e finds himself astray amid the masses of accumulated lore … he feels his judgment perplexed, his choice distracted, and his immediate wish is that some guide would direct him to the leading cases, embodied in which he might discover those great principles of law of which it is necessary that he should render himself thorough master, before he can trace with accuracy the numerous ramifications with which those principles are expanded in the surrounding multitude of decisions.

Smith later claimed that this goal of acquainting students with ‘first principles’ of the law was best achieved largely by citing older cases, from time when the matter was ‘altogether novel’.74 He suggested that more recent cases, in contrast, tended to involve the application of those principles ‘to particular facts’, and so, pedagogically speaking, were less valuable.75 For the lawyer, Smith promised something much less ambitious—a ‘portable collection’. Well over a century before the photocopier, the law reports were, quite simply, too bulky and too heavy to be carried. A single volume of key cases could overcome that problem. To be successful, selection would be all important:76 The leading cases are those with the names of which he [the practising lawyer] is most familiar, which he has most frequently occasion to consult, and which, consequently, he would, if it were practicable, willingly carry into court and round the circuit with him.

Each case that was included ‘involves, and is usually cited to establish, some point of principle of real practical importance’.77 The characteristics that commentators looked for in a ‘leading case’ were manifold: the selected report must ‘embody’ a principle, distinct from the peculiar facts, and the principle enunciated must be one that is subsequently followed; the case would usually be ‘the first ’articulation of the principle; and, moreover, to be useful pedagogically, the statement of principle must be clear. This dimension of clarity was referred to by White and Tudor in the Preface to their Leading Cases in Equity:78 ‘Each of the cases chosen will, it is believed, be found either to be frequently referred to in practice, or to enumerate clearly, for the first time, some important principle of equity.’ In what ways did Prince Albert v Strange meet these criteria? The case was not breaking new ground when it held that an author would be protected

73 74 75 76 77 78

Smith (n 2) v–vi. Ibid, vii. Ibid, viii. Ibid, vi. Ibid, vi. White and Tudor (n 7) xxx.

Prince Albert v Strange 247 from unwanted disclosure of his work. There were plenty of cases establishing this going back as far as Webb v Rose in 1732; and whilst the earliest ones were unreported (and so, lacking an account of the reasoning, inapt to be described as ‘leading cases’),79 many had been reported.80 A number of those might have excluded themselves from the capacity to be described as ‘leading’, perhaps because of doubts over the quality of the reporting81 or the soundness or authoritativeness of the reasoning,82 but still, in terms of sheer age, the identification of Prince Albert v Strange was most peculiar: after all, when Phillips first described the decision as the ‘leading case’ in 1863, it was one of the most recent cases on the topic, not one of the oldest. Moreover, Lord Cottenham himself denied that the matter was at all novel, explicitly characterising the case as one that had attracted public attention by virtue of its particular facts. Given that Prince Albert v Strange seems to fail William Smith’s criteria for a ‘leading case’, why did commentators nevertheless give it this designation? There seem to be two possible reasons. The first is because, in some respects, Prince Albert v Strange did develop the law from its existing ground, so that the case could be said to indicate the scope of the protection of unpublished works better than the earlier authorities. The second reason 79 Eg, Webb v Rose (1732) and Forrester v Waller (1741) were unreported, though they were nevertheless widely cited. Webb v Rose was referred to in Tonson v Collins (1761) 1 Bl W 321, 330–31; 96 ER 180, 185. Both Webb and Forrester were referred to in Millar v Taylor (1769) 4 Burr 2303, 2330–31; 98 ER 201, 217 (Willes J), 2379, 242–43 (Yates J); Lord Mansfield referred to Webb, Forrester, Pope and Shebbeare as ‘the four cases in Chancery’ establishing an incorporeal right at common law (see ibid, 2396–98, 252–53). These showed that ‘it is agreeable to the principles of right and wrong, the fitness of things, convenience, and policy, and therefore to the common law, to protect the copy before publication’. In his dissenting judgment, rejecting common law copyright, Yates J (ibid at 2379, 242) categorised these cases as ‘causes on private trespass; surreptitiously or treacherously publishing what the owner had never made public at all, nor consented to the publication of’. Both Webb and Forrester were again cited in argument in Macklin v Richardson (1770) Amb 694, 27 ER 491, and in the judgment in Thompson v Stanhope (1774) Amb 737, 740; 27 ER 476, 478. 80 Pope v Curl (1741) 2 Atk 342, 26 ER 308; The Duke of Queensbury v Shebbeare (1758) 2 Eden 329, 28 ER 94; Thompson v Stanhope (1774) Amb 737, 27 ER 476; Perceval v Phipps (1813) 2 V&B 19, 35 ER 225; Gee v Pritchard (1818) 2 Swanst 402, 36 ER 670; Abernethy v Hutchison (1824–25) 1 H & Tw 28, 47 ER 1313; (1825) LJ Ch (OS) 209. 81 Thompson v Stanhope (n 80) was reported by the barrister, Charles Ambler, whose reputation as a reporter is not particularly impressive. JW Wallace, The Reporters Arranged and Characterized (Boston, Mass, Soule and Bugbee, 1882) 513 (claiming that in ‘many instances the language of the Judges was so erroneously reported that false ideas were given of the points decided’); VV Veeder, ‘The English Reports, 1202–1865’ (1901) 15 Harvard Law Review 1, 114–15 (stating that ‘their statement of facts is often defective, their reports of the arguments of counsel are far from lucid, and sometimes they give an incorrect report of the decree’). 82 The reasoning in Pope v Curl (n 80) might have been thought dubious because of Lord Hardwicke’s express reference to the Statute of Anne, when the Act explicitly conferred protection only on published books. The judgments of the Court of King’s Bench in Millar v Taylor (1769) 4 Burr 2303, 98 ER 201 were widely cited, but were not treated as ‘leading’, in part, no doubt, because the reasoning was obiter (the case concerning published works) and in part because the result was overturned by the House of Lords in 1774 in Donaldson v Beckett (n 22). See Perceval v Phipps (1813) 2 V&B 19, 35 ER 225 too.

248 Lionel Bently why Prince Albert might have been identified as a leading case is because of its (then) recent vintage. Such a clear reaffirmation of the principle of protection of unpublished works took on particular importance in the face of another decision of the House of Lords, Jefferys v Boosey,83 that could have been understood as rejecting common law protection of unpublished matter as an incorporeal property. Prince Albert v Strange developed the law relating to unpublished works in at least two respects. First, this was the first time the court had protected a work of visual art by these means. Lord Cottenham LC declared:84 The property of an author or composer of any work, whether of literature, art, or science, in such work unpublished, and kept for his private use or pleasure, cannot be disputed, after the long line of decisions in which that proposition has been affirmed or assumed.

Here was a generalised statement of the principle of protection of all unpublished intellectual creations. Previous cases had concerned letters or dramatic works, but there had been no case law dealing with protection of engravings or sculptures prior to publication.85 This certainly was a significant development, and in due course would come to be followed in an 1861 case on paintings.86 The second way in which Prince Albert v Strange developed contemporary protection of unpublished works lay in the extension of the scope of protection to cover the description of the content or subject of unpublished works, not just the reproduction and publication of the work itself. Lord Cottenham LC saw little distinction between reproducing unpublished works and describing them:87 The means are different, but the object and effect are similar: it is to make known to the public, more or less, the unpublished works and compositions of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or as far as he may please, from the knowledge of others.

83

See text accompanying n 91 infra. (1849) 1 Mac & G 25, 42; 41 ER 1171, 1178. 85 Engravings and sculptures, once published, were protected by statutory copyright. Paintings and drawings were not even within a statutory regime until 1862. 86 Turner v Robinson (1860) 10 Ir Ch R 121 (MR), 510 (CA in Ch). If the extension of the action to cover art (paintings, engravings and so on) was significant, there were some who thought that the scope of the common law right in unpublished matter was broader still, and could encompass unpublished inventions. Thomas Webster, the famous barrister, for example, represented to the 1871 Select Committee on Patents that ‘people have property in their inventions, so long as they keep them secret, as they have in pictures and lectures’, citing Abernethy (n 32) and Prince Albert v Strange as the grounds for such a proposition. See Report of the Select Committee on Letters Patent (1871), [601]. 87 Prince Albert v Strange (n 11) 43, 1178. 84

Prince Albert v Strange 249 Significantly, the arguments based on the right to criticise a work were treated as irrelevant:88 Cases upon abridgments, translations, extracts, and criticisms of published works have no reference whatever to the present question. They all depend on the extent and right under the acts with respect to copyright, and have no analogy to the exclusive right of the author in unpublished works, which depend entirely on the common law right of property.

Prince Albert was thus a significant intervention establishing more limited exceptions in relation to unpublished, as opposed to published, works. In defining the breadth of what would be protected, and the depth of protection, Prince Albert v Strange became the case that would most efficiently reveal the principle of the law to students seeking an understanding thereof. As Phillips explained:89 All to whom the doctrine of copyright-before-publication is interesting and new, and they may be many, should peruse and reperuse in extensu [Prince Albert v Strange] both in the regular reports and in the ‘Jurist’ ... [for] a clear judicial exposition of the principles of law upon which this copyright is based.

On that basis, despite its recent vintage, contemporaries thought it appropriate to treat the case as the ‘leading case’ on the subject.90 The second reason why it might have suited commentators to treat Prince Albert v Strange as a ‘leading case’ on property in unpublished material was because of its recent vintage. Whereas a ‘leading case’ was normally identified as the ‘origin’ of a particular legal doctrine, Prince Albert v Strange may have been chosen as a clear reaffirmation of an old principle. This was regarded as important by commentators and textbook writers precisely because a contemporary authority coming from the court of last resort, the House of Lords, had cast doubt on the whole line of authority that led to Prince Albert. The decision in question was the House of Lords’ decision of 1854 in Jefferys v Boosey.91 This was a case concerned with the protection of the published works of foreign authors, but the issue had prompted a thorough investigation of the fundamentals of common law and statutory protection of books and music. Ultimately, the case was decided by a vote of the peers, but prior to voting the House heard first the views of the judges and then three speeches from three Law Lords. Amongst the latter, the speeches of Lord Brougham and Lord St Leonard’s spoke against the existence of any ‘common law copyright’, in the sense of an incorporeal right in the work distinct from the corporeal property right in the chattel in which the work 88 89 90 91

Ibid. Phillips (n 56) 10. See, especially, Shorrt (n 65)’s summary, at 54, of why Prince Albert was important. Jefferys v Boosey (1854) 4 HLC 814, 10 ER 681.

250 Lionel Bently was first materialised (the manuscript or engraved plates). Lord Brougham acknowledged that the right of the author before publication was ‘unquestioned’ but defined it in a way that reduced it to a chattel owner’s right in the physical manuscript as opposed to a property right in an incorporeal ‘work’:92 He has the undisputed right to his manuscript; he may withold, or he may communicate it, and communicating, he may limit the number of persons to whom it is imparted, and impose such restrictions as he pleases upon their use of it. The fulfilment of the annexed conditions he may proceed to enforce, and for their breach he may claim compensation.

Having then discussed the possibility of a right after publication he concluded:93 Thus, whatever may have been the original right of the author, the publication appears to be of necessity an abandonment; as long as he kept his composition to himself, or to a select few placed under conditions, he was like the owner of a private road; none but himself or those he permitted could use it; but when he made the work public, he resembled that owner after he had abandoned it, and could not directly prohibit passengers, or exact from them a consideration for the use of it.

Lord St Leonard’s agreed with Lord Brougham’s view that ‘no commonlaw right exists after publication’,94 though the logic of his argument suggested that the right that existed prior to publication was more limited than that recognised by Lord Brougham. This is because Lord St Leonard’s found compelling the analogy between unpublished invention and books, and treated the only right that existed prior to publication as the right to the composition, ‘just as he has a right to any other part of his personal property’. The obvious reading of these two speeches in Jefferys v Boosey was that the only right which an author had prior to publication was the personal property right over the manuscript,95 the tangible entity, enforceable through the torts of detinue, trover or conversion. Given that the vote of the peers followed the advice of these Law Lords, one might have thought the vote an endorsement of the view that no incorporeal right existed in an unpublished work as such. Such a reading, however, contradicted the orthodox understanding expressed in the legal commentaries before the decision. And, as Ronan Deazley has explored elsewhere, such a reading was not adopted in subsequent case law or commentaries.96 The speeches of

92

Ibid, 962, 739 (Lord Brougham). Ibid, 965, 740 (Lord Brougham). 94 Ibid, 977, 744 (Lord St Leonard’s). 95 R Deazley, Rethinking Copyright: History, Theory, Language (Cheltenham, Edward Elgar, 2006) 64; citing, eg, Phillips (n 56) 2. 96 Deazley, ibid, ch 3. 93

Prince Albert v Strange 251 Lords Brougham and St Leonard’s were cited on a number of occasions,97 but were read in a way which left untouched the notion of a property right in the unpublished work. The right of the author of an unpublished work continued to be seen as as an incorporeal right in relation to the work rather than a mere chattel property in the manuscript (if any).98 Although a host of different factors influenced the manner in which the law came to ignore the views expressed in two speeches of the Law Lords,99 the recognition of Prince Albert v Strange as a leading case appears to have had a not insignificant role. After all, it was a case that was exhaustively argued by top counsel before first the Vice-Chancellor and then the Lord Chancellor. Both courts embraced an extensive scope of application of the property right in unpublished works. Prince Albert thus stood, if not as a leading case by orthodox criteria, as a strong decision in support of a common law right. Moreover, it was a decision that was difficult, if not impossible, to square with the attempt by Lord Brougham and Lord St Leonard’s to reduce ‘common law copyright’ in unpublished material to an extensive understanding of the rights of a person in his chattels.100 By highlighting Prince Albert v Strange, commentators effectively adumbrated their preferred view as to how the ‘conflict’ between Jefferys v Boosey and the common law rights should be resolved. Having said this, it is peculiar that it was the barrister CP Phillips who first adopted the language of ‘leading case’ for Prince Albert v Strange. The peculiarity of this derives from the fact that Phillips appeared to recognise, and indeed embrace, the implications of Jefferys.101 Phillips’s account of what he calls ‘copyright-before-publication’ is deeply puzzling, and seemed to contain contradictory claims, and his elevation of Prince Albert v Strange to a leading case was certainly not intended as an outright rejection of Jefferys.102 He begins by describing copyright-before-publication as the 97 Turner v Robinson [1860] Ir Ch R 121, 132 (Master of the Rolls); In Re Dickens, Dickens v Hawksley [1934] 1 Ch 267, 286 (Lord Hanworth MR), 294 (Romer LJ). 98 Macmillan v Dent [1907] 1 Ch 107, 120–21 (Fletcher Moulton LJ); Mansell v Valley Printing Co [1908] 1 Ch 567, 573 (Swinfen Eady J); [1908] 2 Ch 441, 445 (Cozens Hardy MR), 447 (Farwell LJ); In Re Dickens, Dickens v Hawksley [1934] 1 Ch 267, 288 (Lord Hanworth MR), 292 (Romer LJ), 303–04 (Maugham LJ). 99 Deazley (n 95) ch 3 (describing the way in which judges and commentators achieved this result). In part, this was possible because the decision (like that in Donaldson v Beckett in 1774) was by vote, rather than by reasoned ruling—and thus the authority of statements as to the existence (or not) of a right in unpublished works was left unclear. More significantly, the case was about rights (if any) of Boosey in a published work, so turned most clearly on interpretation of the Statute of Anne itself. As the Lord Chancellor explained, the case concerned statutory copyright, not ‘the right to publish, or to abstain from publishing a work not yet published at all’ ((1854) 4 HLC 954, 10 ER 735). Consequently, the views of Lord Brougham and Lord St Leonard’s on the common law right could be disregarded as obiter. 100 Scrutton, who could see the conflict, likewise reasoned that nothing in Jefferys v Boosey qualified the ‘direct decision’ of Prince Albert v Strange. See Scrutton (n 59) 224. 101 Phillips (n 56) 2. 102 Ibid, ch 1.

252 Lionel Bently right of first publishing the ‘original and material product of intellectual labour’ that is ‘incidental to the property exclusively vested in the absolute and lawful possessor of the material product’.103 Thus he seems to follow Jefferys v Boosey and suggest that the right is a component of the chattel property. Later, however, he says that ‘the nature of the right of an author in his unpublished works has long been known to be analogous to rights of ownership in other personal property’,104 and discusses Prince Albert v Strange as a recent, lucid exposition of that principle. This seems to treat the right as an incorporeal property right in the work that is similar in nature to chattel property rights (a view recognised most famously in the opinion of Erle J in Jefferys v Boosey that the Lords did not appear to follow). However, although Phillips commends a close reading of Prince Albert, the passages he selects to reproduce come from the judgment of Knight Bruce V-C, and at points sound not dissimilar in tone to those of Lords Brougham and St Leonard’s in Jefferys v Boosey. A further section of the chapter is given over to a re-reading of the ‘letters cases’, hitherto understood as recognising an author’s right to restrain publication, and which were difficult to explain on the basis that copyright-before-publication vested in the owner of the chattel property (the recipient of the letter). However, preferring the latter position, that the copyright-before-publication vests in the owner of the paper carrying the letter,105 Phillips offers a new reading of Pope v Curl as a case concerning a published work,106 and suggests other cases might be based on implied contract or breach of trust and confidence.107 If Phillips’s account attempts to confront contradictions between Jefferys v Boosey and the earlier cases, and sees Prince Albert as a text that assists that task, those who followed saw Prince Albert as an authoritative reaffirmation of the earlier orthodoxy that ‘copyright-before-publication’ was an incorporeal property right vesting in the author of a work, rather than a right ancillary to ownership of the chattel property in a manuscript. This was clearly the position taken by Shortt, who shared Phillips’s view of Prince Albert as authoritative but seemed to draw a very different message from it.108 Walter Copinger, who published the first edition of his work on copyright in 1870, also reiterated the common law right of the author, citing Lord Cottenham’s judgment in Prince Albert as affirmation (and not even referring to the different views of their Lordships in Jefferys).109 Scrutton, who in contrast recognised the conflict, reasoned that nothing in Jefferys v 103

Ibid, 2 (emphasis added). See also ibid, 15. Ibid, 10 (emphasis added). 105 Ibid, 34. 106 Ibid, 27. 107 Eg ibid, 31 (highlighting Gee v Pritchard (n 71) as involving a ‘breach of faith’). 108 Shortt (n 65), 50, 54. 109 W Copinger, The Law of Copyright in Works of Literature and Art (London, Stevens & Haynes, 1870) 9. 104

Prince Albert v Strange 253 Boosey qualified the ‘direct decision’ of Prince Albert v Strange.110 Prince Albert was the ‘leading case’ because it was a case on point. If the identification of Prince Albert v Strange as a leading case on common law copyright/property in unpublished matter was in some respects surprising, its status as such came to an abrupt end in 1912, when the Copyright Act 1911 abolished ‘common law copyright’ and assimilated the rights in unpublished works to those granted to published works. Section 31 declared: No person shall be entitled to copyright or any similar right in any literary, dramatic, musical, or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force ...

Transitional provisions converted existing common law rights into statutory copyright, and thereafter all newly-created works fell automatically within the single statutory regime. The effect was to formalise the scope of copyright in unpublished works and to link it more directly to copyright in published works, the case law in relation to which drove its conceptualisation. As GS Robertson said in his commentary on the Copyright Act 1911,111 ‘such distinctions as there used to be between the incidents of the common law right in unpublished works and copyright in published works have ceased to exist’. Although the potential for indefinite protection was retained, and although the rights recognised in the new regime were broader in coverage than the previously limited statutory right to print and reprint (including thereafter the right to perform, to translate and to dramatise), such statutory copyright would be infringed only by use of a substantial part of the ‘expression’ (rather than ideas) and was subject to a range of exceptions, such as fair dealing for news reporting. The effect was a largely unnoticed but historically rare cutting back in the scope of protection: authorities such as Prince Albert v Strange no longer defined either the subject matter of copyright, or the breadth of rights in unpublished works.

(3) A Leading Case on Breach of Confidence? The 1911 Act did not, however, spell the end of Prince Albert’s characterisation as a leading case. Beginning in (not coincidentally) 1912, Prince Albert v Strange starts to be viewed as a foundational moment and, as such, a ‘leading case’ in a different field of law: the action for ‘breach of confidence’, an action available to a holder of information which is not generally 110 111

See Scrutton (n 59) 224. GS Robertson, The Law of Copyright (Oxford, Clarendon Press, 1912) 42.

254 Lionel Bently available to the public against a person who has wrongfully disclosed the information in breach of some duty to keep it secret or not to use it. Prince Albert had not been viewed as a leading case on confidence in the period between the decision and 1911, and the status of ‘leading case’ in the field of breach of confidence was really secured for it only in the second half of the twentieth century. Of course, the case is referred to in late nineteenth-century discussions on the law of confidence, but largely in passing. Instead, reliance is usually placed on cases that preceded Prince Albert, such as Yovatt v Winyard,112 Abernethy v Hutchison113 and Tipping v Clarke,114 or two decisions decided shortly after Prince Albert, Morison v Moat115 and Gartside v Outram.116 For example, Edward Lloyd, in his discussion of ‘rights analogous to trade mark rights’ as encompassing cases of breach of faith or confidence,117 refers to Yovatt, Tipping and Morison, before mentioning Prince Albert.118 Similarly, William Kerr’s treatise on injunctions states that ‘[a] Court of Equity will, in the exercise of its jurisdiction to correct abuse of confidence, restrain by injunction the disclosure of confidential communications, papers and secrets’,119 and cites Morison and Gartside v Outram, rather than Prince Albert. The judicial treatment of confidentiality in the late nineteenth century offered a similar appraisal of the significance of Prince Albert, referring occasionally to Lord Cottenham’s judgment but not suggesting that the decision had any privileged status. For example, in Merryweather v Moore,120 Kekewich J referred to Prince Albert as having ‘repeated’ what Wigram V-C said in Tipping v Clarke and as a source cited by North J in Pollard.121 In Lamb v Evans, Kay LJ refers to Morison as the ‘leading case’ and in turn mentions Turner V-C’s reliance on Prince Albert.122 In Robb v

112

Yovatt v Winyard (1820) 1 Jac & W 394, 37 ER 425. Abernethy v Hutchinson (n 32). See I J Alexander, Copyright Law and the Public Interest in the Nineteenth Century (Oxford, Hart Publishing, 2010) 88–89. 114 Tipping v Clarke (1843) 2 Hare 383, 67 ER 157. But, to similar effect, see Murray v Heath (1831) 1 B & Ald 804, 109 ER 985. 115 Morison v Moat (1851) 9 Hare 241, 68 ER 492. 116 Gartside v Outram (1856) 3 Ju (NS) 39 (Page-Wood V-C). 117 E Lloyd, The Law of Trade Marks (London, Draper, 1862) 32. 118 Ibid, ch V, 42 ff. 119 W Kerr, A Treatise on the Law and Practice of Injunctions (London, Maxwell, 1867) 177. 120 Merryweather v Moore [1892] 2 Ch 518, 522. 121 Pollard v Photographic Company (1888) 40 Ch D 345. 122 Lamb v Evans [1893] 1 Ch 218, 236. He explains that ‘[t]here a man entrusted by the plaintiff with copperplates for the purpose of taking impressions for the plaintiff took surreptitiously additional impressions, which came into the hands of the defendant Strange, who published a catalogue of them. He was restrained from doing it because, as Lord Justice Turner says, he obtained them by a breach of the trust and confidence under which the things to be described in that catalogue had been entrusted to the care of the printer.’ Bowen and Lindley LJJ did not refer to Prince Albert. 113

Prince Albert v Strange 255 Green,123 Hawkins J cited Prince Albert, but (as with Kekewich J) for Lord Cottenham’s approval of Wigram V-C’s speech in Tipping v Clarke rather than as an authority in itself. On appeal,124 neither Esher MR nor AL Smith LJ referred to it, while Kay LJ refers to Morison, noting Turner V-C’s citation of Lord Cottenham’s statement that ‘[t]his case by no means depends solely upon the question of property, for a breach of trust, confidence, or contract, would of itself entitle the plaintiff to an injunction’.125 In general, Prince Albert v Strange was cited indirectly or as one of a bundle of relevant authorities.126 The case was situated as a supporting actor, rather than being offered a ‘leading’ role. The treatment of Prince Albert in this way seems largely to reflect the fact that the case was thought of neither as a key ‘first’ in the development of the law, nor as a particularly clear enunciation of a legal ‘principle’. By and large, Yovatt v Winyard was recognised as the first case in which an injunction had been awarded to prevent breach of contractual confidentiality obligations.127 In this case,128 the plaintiff, William Yovatt, had formerly been in partnership with Delabere Blaine until the latter died, leaving Yovatt the veterinary business. William Winyard was a former employee assistant or journeyman of Yovatt, under an agreement which stated that he was to learn general knowledge of business but was not to be taught the means of composing the medicines. Winyard left Yovatt’s employment and entered into business for himself. Yovatt suspected that his former employee had surreptitiously accessed the books of recipes and copied them, and was now selling the preparations, and Winyard confirmed that suspicion when he offered for a small salary not to divulge the secrets. The Lord Chancellor granted an injunction to restrain the defendant from communicating the recipes, ‘upon the ground of there having been a breach of trust and confidence’. In Abernethy v Hutchinson the court showed a willingness to imply an obligation of non-disclosure (as opposed to requiring an express stipulation) and to extend liability for breach to third party recipients.129 Here, the surgeon Sir John Abernethy brought an action to restrain systematic publication in the (then) newly-formed medical journal, The Lancet, of detailed accounts

123

Robb v Green [1895] 2 QB 1. [1895] 2 QB 315. 125 Ibid, 319 (Kay LJ). 126 One exception is Pollard v Photographic Company (n 121), where North J cited Prince Albert alone (at 354) for the proposition that ‘independently of any question as to the right at law, the Court of Chancery always had an original and independent jurisdiction to prevent what that Court considered and treated as a wrong, whether arising from a violation of an unquestionable right or from breach of contract or confidence’. 127 Although such obligations (supported by penalties) were already common, Lord Eldon LC had previously denied that they could be enforced in Chancery. See Newbery v James (1817) 2 Mer 446, 35 ER 1011; Williams v Williams (1817) 3 Mer 157, 36 ER 61. 128 Yovatt v Winyard (n 112). 129 (1825) 1 H & Tw 28, 47 ER 1313; (1825) LJ Ch (OS) 209. 124

256 Lionel Bently of the weekly lectures he had given to paying students at St Bartholomew’s Hospital. At the third lecture, Abernethy made clear his objection to the publication of the lectures, but the practice continued. The application was initially unsuccessful, being founded on copyright (‘property’) in the unpublished work, because Abernethy’s affidavit admitted that the lectures were not delivered from an existing written text (and the notes on which they were said to be based had not been produced). Lord Eldon LC declined, in those circumstances, to grant an injunction, indicating that the question of whether there could be copyright in such a work would first need to be determined in a court of law.130 However, he indicated that an action might successfully be brought on the basis of breach of contract or breach of trust, and granted leave to bring a motion on that basis.131 Abernerthy (after some delay) accordingly amended his bill, and in June 1825 an injunction was granted. The court took the view that while pupils might take notes for purposes of their own study, they were under an implied contractual duty not to publish their notes for profit. Lord Eldon LC then reasoned that ‘[a]s the lectures must have been procured in an undue manner from those who were under contract not to publish for profit, there was sufficient to authorise the Court to say the Defendants shall not publish’.132 If the student could not publish for profit, for the Defendants to do so ‘would certainly be what this Court would call a fraud in a third party’.133 In the light of Yovatt and Abernethy, it is not entirely surprising that Prince Albert v Strange was not described as a leading case, as it would not have met the contemporary understanding of being the ‘origin’ of the principle. Neither was there an authoritative restatement of the principles underpinning the laws of confidence. Instead, Lord Cottenham offered vague and unspecific reasoning, explaining the case as one in which the court134 exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this court considers and treats as a wrong, whether arising from violation of an unquestioned right, or from breach of trust, confidence, or contract, as in the present case, and in The case of Abernethy’s Lectures.

The use of the phrase ‘breach of trust, confidence, or contract’ was not a particularly clear recognition of an independent action for ‘breach of confidence’, ie a cause of action distinct from contract or fiduciary duties. Indeed,

130 131 132 133 134

The reasoning on this part is most fully reported in (1825) LJ Ch (OS) 209, 213–16. (1825) LJ Ch (OS) 209, 217–18. Ibid, 219. Ibid, 219. Prince Albert v Strange (1849) 1 Mac & G 25, 46; 41 ER 1171, 1179.

Prince Albert v Strange 257 two years later, in Morison v Moat, Turner V-C, granting an injunction to prevent revelation of a secret medicine, observed as follows:135 That the Court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been assigned for the exercise of that jurisdiction. In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence, meaning, as I conceive, that the Court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given the obligation of performing a promise on the faith of which the benefit has been conferred; but, upon whatever grounds the jurisdiction is founded, the authorities leave no doubt as to the exercise of it.

The first reference that I have found to Prince Albert v Strange being a ‘leading case’ on confidentiality dates from 1913.136 As already noted, the 1911 Act abolished common law copyright via section 31, but a proviso added that137 ‘nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence’. A number of authors saw the proviso as an opportunity to reinterpret old common law copyright cases as cases of breach of confidence. Joe Brook Richardson, a barrister from Lincoln’s Inn, writing a commentary on the Act, discussed the Prince Albert case as the ‘leading case’ on ‘rights arising out of the repose of confidence’.138 Richardson conceived these as contractual rights to restrain publication, observing that after the Act ‘their importance has greatly increased, as they are available in cases where there is no copyright’. The author predicted that, after 1912, the courts would ‘imply a contract sufficiently wide to prevent all acts which would have been breaches of the Common Law right before The Copyright Act 1911’.139 Easton, author of the fifth edition of Copinger in 1915, followed Richardson’s lead. Prince Albert was identified as a ‘leading case’ on the law of confidence, and other old cases, decided primarily as common law copyright cases, such as Caird v

135

Morison v Moat (1851) 9 Hare 241, 255; 68 ER 492, 498. JB Richardson, The Law of Copyright (London, Jordan & Co, 1913) 45. See also JM Easton (ed), The Law of Copyright in Works of Literature, Art, Architecture, Photography, Music and the Drama … by the Late Walter Arthur Copinger, 5th edn (London, Stevens and Haynes, 1915) 31 (‘a leading case on the subject’). 137 The provision was introduced as an amendment to the Act by Lord Gorrell: (1911) 10 Hansard (5th Ser), HL, 486. See R Dreben, ‘Publication and British Copyright Law’ (1956) 7 Copyright Law Symposium 3, 24 (claiming that while the 1911 Act was ‘revolutionary on its face’, the law of unpublished works remained ‘almost intact’). 138 Richardson (n 136) 44. 139 Cases such as Exchange Telegraph v Gregory [1896] 1 QB 147 (CA) and Exchange Telegraph v Central News [1897] 2 Ch 48, where the court had treated stock exchange information and information about racing results as protected by the common law right, were proposed as examples of situations that could be treated as ones of implied confidence. Richardson (n 136) 39, fn 3. 136

258 Lionel Bently Sime140 (a House of Lords decision on common law copyright in lectures), were recharacterised as cases on implied obligations to confidentiality. Like Richardson, Easton understood breach of confidence to be based on breach of a contractual obligation of secrecy, though it was acknowledged that the contractual obligation might be implied from the circumstances of the case. This pitch for Prince Albert to be regarded as a ‘leading case’ on confidence did not sit particularly easily with Easton’s simultaneous treatment of breach of confidence as a form of implied contractual obligation. After all, neither Judge nor Strange was in any relationship with Prince Albert, let alone one which might be said to be contractual. The contractual characterisation of the action for breach of confidence was dominant during the first half of the twentieth century, as is particularly apparent from the six editions of Kerr on Injunctions issued between 1867 and 1927.141 While the first four editions say the court will exercise its equitable jurisdiction to restrain breach of confidence by fastening an obligation on the conscience of the party, the 5th and 6th editions (from 1914 and 1927) see the basis of the action as contractual: In all cases where a confidential relationship can be shown to exist, the Court implies a contract on the part of a person who has derived any confidential communication through the relationship, that he will not use the information to the detriment of the person from whom he received it ... The obligation extends to those who have acquired the information at second hand from such persons.

Despite the contradiction, Copinger both claimed that ‘there must be a contract for secrecy’ and continued to call Prince Albert v Strange ‘a leading case upon the subject’ in the three editions published before and immediately after the Second World War.142 The explanation for this seems to lie in the analytical inertia that seems virtually inherent in treatises that go into multiple editions. Prince Albert was once again referred to as a leading case on confidence in Harold Fox’s The Law of Master and Servant in Relation to Industrial and Intellectual Property in 1950.143 Not insignificantly, Fox’s suggestion came two years after the Court of Appeal decision in Saltman v

140

Caird v Sime (1887) 12 App Cas 326. Kerr (n 64) 177; 2nd edn (London, Maxwell, 1878) 436; 3rd edn (London, Maxwell, 1888) 481; 4th edn by EP Hewitt, SE Williams and JM Paterson (London, Sweet & Maxwell, 1903) 420; 5th edn by John Melvin Paterson (London, Sweet & Maxwell, 1914) 503; 6th edn by JM Paterson (London, Sweet & Maxwell, 1927) 487. 142 FE Skone James, Copinger on the Law of Copyright, 6th edn (London, Sweet & Maxwell, 1927) 27; 7th edn (London, Sweet & Maxwell, 1936) 33–34; Copinger and Skone James on the Law of Copyright, 8th edn (London, Sweet & Maxwell, 1948) 34–35. 143 HG Fox, The Law of Master and Servant in Relation to Industrial and Intellectual Property (Toronto, University of Toronto Press, 1950) 103. 141

Prince Albert v Strange 259 Campbell,144 a case which might legitimately be regarded as the modern foundation of the action for breach of confidence. The case involved a complex, and unformalised, relationship between a number of companies and a potential manufacturer of hole-punches. At first instance, the claim had failed because the plaintiff was not able to establish the existence of a contractual relationship with the defendant. On appeal, the Court of Appeal held that such a contract was unnecessary, Lord Greene MR stating that ‘the obligation to respect confidence is not limited to cases where the parties are in contractual relationship’.145 Drawing together the principles that he said had been established in a number of cases, including Morison v Moat,146 the Master of the Rolls approved the following summary:147 If a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.

Although Saltman did not have an immediate impact, it started to be as referred to as the key authority in a host of cases towards the end of the 1950s and at the beginning of the 1960s.148 For the most part, these cases concerned relationships of manufacture and supply, and could have been put in pre-war terms of implied contract and inducing breach, but it was more convenient to recognise a free-standing obligation under the Saltman rubric. This line of cases concluded with the decision of Megarry J in Coco v Clark,149 where Megarry J offered an account of the law that has taken on foundational status. Megarry J suggested that the origin of the ‘action for breach of confidence’ lay in the earliest operations of the courts of Chancery, but had been obscured until ‘[i]n the middle of the last century, the great case of Prince Albert v Strange … reasserted the doctrine’.150

144

(1948) 65 RPC 203 (HC, CA). (1948) 65 RPC 203, 211. 146 Morison v Moat (n 135). 147 (1948) 65 RPC 203, 213. 148 Nichrotherm Electrical Co Ltd v Percy [1956] RPC 272, 279–80 (Harman J), [1957] RPC 207, 215 (CA); Terrapin Ltd v Builders’ Supply Co (Hayes) Ltd (31 July 1959) [1967] RPC 375, 388–89, 391, 392 (Roxburgh J) and [1960] RPC 12, 131 (CA); Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97, 102 (Havers J); Paul (Printing Machinery) Ltd v Southern Instruments (22 February1961) [1964] RPC 118, 121 (Edmund Davies J); Peter Pan Manufacturing Corporation v Corsets Silhouette Ltd (1962) [1964] 1 WLR 96, 102–03; Bostitch Inc v McGarry & Cole Ltd (31 July 1963) [1964] RPC 173, 176 (Cross J); Brian Collins (Engineers) Ltd v Charles Roberts & Co Ltd [1965] RPC 429, 431–32; Suhner & Co AG v Transradio Ltd [1967] RPC 329, 333–34 (Plowman J). 149 Coco v Clark [1968] FSR 415. 150 Ibid, 419 (Megarry J). 145

260 Lionel Bently Subsequent cases, with one or two exceptions,151 further reinforced the ‘foundational’ or ‘leading’ status of Prince Albert. In Attorney-General v Jonathan Cape,152 Widgery CJ referred to the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v Strange (1849) 1 H & T 1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence.

As literature devoted to the burgeoning case law on confidence started to proliferate, Prince Albert found itself positioned as a leading case. The Law Commission, reviewing the area of law in 1974, described Prince Albert as one of the two ‘basic cases usually cited to support the jurisdiction’.153 In the following decades, Francis Gurry, whose elegant 1984 book provided one of the first systematic treatments of the modern action, refers to Prince Albert as ‘the leading early case’,154 and John Hull, for example, in his book Commercial Secrecy,155 says that the case, along with Morison v Moat, are ‘often regarded as the foundation stones of a distinct action for breach of confidence’. More recently, Vicky Jones and Alastair Wilson QC have written that the case is ‘usually regarded as the starting point for the development of the law of confidential information’.156 Nevertheless, if we step back for a moment, the central status offered to Prince Albert looks surprising. Most obviously, the new wave of postwar cases were largely concerned with commercial confidences and the legal regulation of the movement of commercially valuable information between businesses. Yet Prince Albert had concerned the privacy of the recreational activities of the Royals. Given the existence of cases like Yovatt

151 The case is not mentioned in Lord Goff’s seminal speech in the Spycatcher case, Attorney-General v Guardian (No 2) [1990] AC 109. In fact, only Lord Griffiths referred to Prince Albert (and then merely for the proposition that an obligation of confidence will bind a third party with knowledge of the breach): ibid, 268F. The case barely gets a mention in G Jones, ‘Restitution of Benefits Obtained in Breach of Another’s Confidence’ (1970) 86 LQR 463. 152 Attorney-General v Jonathan Cape [1976] QB 752, 769. In argument, the AttorneyGeneral (Sam Silkin QC) asserted (at 755) that ‘[t]he origin of the doctrine is found in Prince Albert v Strange (1849) 1 H & T 1, where it was said that breach of confidentiality gives rise to a remedy on its own and it is not necessary to found it on breach of contract or another established remedy’. 153 Law Commission, Breach of Confidence, Working Paper No 58 (London, HMSO, 1974), [7]. 154 F Gurry, Breach of Confidence (Oxford, Clarendon, 1984) 13. 155 J Hull, Commercial Secrecy (London, Sweet & Maxwell, 1998) para 2.05, 26. 156 V Jones and A Wilson, QC, ‘Photographs, Privacy and Public Places’ [2007] European Intellectual Property Review 357, 360. Linda Clarke likewise asserts that ‘from Prince Albert v Strange onwards, the courts have been willing to grant injunctions to prevent breaches of confidence’: L Clarke, ‘Injunctions and the Human Rights Act 1998: Jurisdiction and Discretion’ (2002) 21 Civil Justice Quarterly 29, 32.

Prince Albert v Strange 261 and Morison v Moat, it seems odd that Prince Albert v Strange should have been singled out so frequently as the leading case. What, then, explains the post-war elevation of Prince Albert v Strange into a leading case on breach of confidence? I should like to suggest four possible reasons. First, in contrast with the late nineteenth century, the question that preoccupied jurists with respect to confidentiality had changed. Then the issue had been the basis for granting injunctive relief, and Yovatt v Winyard stood as the earliest authority on that issue. By the second half of the twentieth century, the courts were looking for the earliest case in which relief had been justified outside of contractual relationships: Yovatt v Winyard, Tipping v Clarke and Gartside v Outram were of no help here. Moreover, Abernethy seemed to have been put as a case of contract, and Morison v Moat certainly had contractual elements (in the form of the partnership agreement that Moat senior had broken by disclosing the recipe to his son, the defendant). Prince Albert v Strange was—despite what Richardson would have had readers believe in 1912—the earliest case in which relief had been granted in situations that could not necessarily be equated with participation in a breach of contract. Secondly, and related to this, the context in which confidentiality was now important had shifted (in part as a result of the Copyright Act 1911). Prince Albert v Strange looked like a weak authority on breach of confidence so long as common law copyright offered strong protection with fewer conditions. Once copyright in unpublished works was pinned back, confidentiality became relevant in relation to artistic confidences as much as commercial and business secrets, and thereafter the figuring of Prince Albert as a ‘leading case’ looked much more appropriate. Moreover, from the viewpoint of treatise-writers, viewing the case as one of confidentiality usefully highlighted the advantages of the action over statutory copyright for unpublished works, in particular the capacity for the law of confidence to protect information (such as the verbal description of the pictures), not merely to prevent reproduction. Thirdly, the figuring of Prince Albert as the leading case highlighted the flexibility of the action, offering space for its application to information other than commercial confidences. We have already noted its significance in Attorney-General v Jonathan Cape, the first case explicitly to apply the action to governmental information (the secrets revealed in Cabinet).157 Over a decade earlier, in Argyll v Argyll,158 Ungoed-Thomas J had referred to Prince Albert in holding that personal information was also protectable through the action for breach of confidence.159 With these developments, 157

Attorney-General v Jonathan Cape Ltd [1976] QB 752, 769. Argyll (Duchess of) v Argyll (Duke of) (1964) [1967] Ch 302. 159 Ibid, 312D (counsel for the defendant describing Prince Albert as the ‘leading case’), 318E–20E (Ungoed-Thomas J). 158

262 Lionel Bently cases like Yovatt or Morison lost their attractiveness as potential ‘leading cases’. In some ways, then, the placing of Prince Albert as a leading case on confidence became self-fulfilling, because it generated a body of law that was best organised around a case that was not itself one of commercial confidence. Lastly, the treatment of Prince Albert as a ‘leading case’ sat with a growing tendency to characterise the action for breach of confidence as ‘equitable’. If Richardson and Easton’s discussion of Prince Albert as a leading case on confidence looked odd when the dominant conception of the obligation was contractual, the identification of the case as ‘leading’ was entirely consonant with a growing orthodoxy that developed that the action for breach of confidence was ‘equitable’.160 Saltman may have been the basis of this orthodoxy, but it had received some legislative encouragement in the Copyright Act 1956. Whereas the saving in section 31 of the 1911 Act had referred to ‘any right or jurisdiction to restrain a breach of trust or confidence’, section 46(4) of the 1956 Act stated that nothing in the Act ‘shall affect the operation of any rule of equity relating to breach of trust or confidence’.161 Although the changed terms went virtually unnoticed even by the leading commentators, this seems both to have reflected and reinforced the changed mindset.

(4) A Leading Case on Informational Privacy (The Tort of Misuse of Private Information)? If the story of Prince Albert v Strange’s transmutation into a ‘leading case’ in copyright or confidence were not interesting enough, there is now a sense that the case is being repositioned as a ‘leading case’ on the protection of personal information or informational privacy. No one has yet (to my knowledge) actually applied the label, but judicial observations and the statements of commentators suggest this might not be far off. The capacity for Prince Albert to justify a legal action protecting privacy was famously recognised over a century ago by Samuel D Warren and Louis Dembitz Brandeis in the 1890 Harvard Law Review. In this article, the authors sought to discover whether the common law offered any remedy to protect the privacy of an individual, ‘[o]f the desirability—indeed 160 Ibid, 322C–D; Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109, 255 (Lord Keith) (‘independent equitable principle of confidence’), 268 (Lord Griffiths) (‘an equitable remedy’); OBG v Allan [2008] 1 AC 1, [276] (Lord Walker) (‘equitable jurisdiction’); Kitechnology BV & Ors v Unicor GmbH Plastmaschinen and Ors [1995] FSR 765, 778 (equitable jurisdiction). 161 Copyright, Designs and Patents Act 1988, s 171(1)(e) retains this language: ‘Nothing in this Part affects—(e) the operation of any rule of equity relating to breaches of trust or confidence.’

Prince Albert v Strange 263 the necessity—of some such protection, there can, it is believed, be no doubt’.162 They argued there was such a remedy, not based, perhaps as one might have expected, on extension of the law of defamation’s protection of ‘reputation’,163 but rather on case law which had protected authors and artists against unauthorised publication of their works—particularly Prince Albert v Strange.164 Using the classic methodology of searching for an ‘underlying principle’ or ‘golden thread’ to explain existing cases, the authors ‘discovered’ that the common law sought to protect ‘the right to one’s personality’. For Warren and Brandeis these cases were not properly explained as cases of ‘property’ in the products of one’s labour, but were better seen as ‘instances and applications of a general right to privacy’.165 The cases protected private ‘thoughts, emotions, and sensations’, and the authors argued that ‘these should receive the same protection, whether expressed in writing, in conduct, in conversation, in attitudes or in facial expression’.166 Prince Albert v Strange was key.167 As is well known, the Warren and Brandeis article made a very significant impact in the United States,168 and after some hesitation169 the analysis was accepted in Pavesich v New England Life Insurance Co.170 However, while Prince Albert v Strange may have proved influential in the United States, Warren and Brandeis’s interpretation never gained ground in England. Indeed, as we have seen, despite the widespread use of the language of ‘privacy’ in the plaintiff’s bill, the court judgments171 and the contemporary commentaries on the case,172 the case was explicitly decided on

162 SD Warren and LD Brandeis, ‘The Right of Privacy’ (1890) 4 Harvard Law Review 193, 196. 163 Ibid, 197–98. 164 The authors also relied on implied contract and trade secret cases: ibid, 210–14. 165 Ibid, 198. 166 Ibid, 206. 167 Ibid, 193–220. 168 WL Prosser, ‘Privacy’ (1960) 48 California Law Review 383 (‘It has come to be regarded as the outstanding example of the influence of legal periodicals upon American law’); H Kalven, Jr, ‘Privacy in Tort Law—Were Warren and Brandeis Wrong?’ (1966) 31 Law and Contemporary Problems 326, 327 (‘that most influential law review article of all’); Hirsch v SC Johnson & Son, Inc, 90 Wis 2d 379, 280 NW 2d 129, 133 (S Ct Wisconsin, 1979) (Heffernan J). 169 For the immediate case law, see Prosser, ibid, 384–85. 170 Pavesich v New England Life Insurance Co 50 SE 68 (1905) (Sup Ct, Georgia). 171 Knight Bruce V-C, for example, said he could not ‘but see that the etchings, being executed by the plaintiff and his consort for their private use, being the produce of their private labour, and belonging to themselves, they were entitled to retain them in a state of privacy, and to withhold them from publication’: (1850) 13 Jurist (OS) 45, 58. The injunction was certainly not less justified, he continued, because it sought to prevent ‘an intrusion—an unbecoming and unseemly intrusion—... if intrusion can fitly describe that which is a sordid spying into the privacy of domestic life—into the home of a family—of a family whose private life forms not their only unquestionable title to the most marked respect.’ Ibid. 172 See, eg, The Lady’s Newspaper (3 February 1849); ‘Right of Privacy of Authors in their Unpublished Works’ (1849) 10 Law Magazine or Quarterly Review of Jurisprudence (ns) 321.

264 Lionel Bently other grounds173 and, as noted, was interpreted as primarily concerned with ‘property in unpublished works’ and later as a case on ‘breach of confidence’. English lawyers representing plaintiffs whose concerns were privacy-based brought actions on recognised grounds—implied contract, defamation and even breach of confidence—most notably in Argyll v Argyll.174 While the courts were thus never really called upon to rule that there was no law of privacy in England,175 it was widely accepted right up until virtually the end of the twentieth century that there was no independent action for breach of privacy.176 Then, in Wainwright v Home Office, the House of Lords ruled expressly against such an independent tort.177 Nevertheless, the capacity of breach of confidence to protect some personal information in some circumstances was, of course, widely acknowledged. The Younger Committee stated that the action was capable of affording much greater protection of privacy than was generally realised.178 However, the capacity was significantly limited by the requirement of some sort of pre-existing relationship of confidentiality, and doubts over whether ‘strangers’ ever owed obligations of confidence.179 As is well known, things have changed dramatically since 2000. The protection of ‘informational privacy’ has been ‘shoe-horned’ into the action for breach of confidence,180 and the requirement of a ‘pre-existing’ obligation has been dropped.181 The immediate trigger for the shift was the Human Rights Act 1998, which 173 Percy Winfield observed that while the case ‘has some references in the arguments and the judgments to privacy, ... the decision proceeded on other grounds’: P Winfield, ‘Privacy’ (1931) 47 LQR 23, 24, fn 2. See also B Neill, ‘The Protection of Privacy’ (1962) 25 MLR 393, 395. 174 Argyll (n 158). 175 In fact, Percy Winfield argued in 1931 that the House of Lords retained a ‘free hand’ to recognise such a tort: Winfield (n 173) 34. 176 See eg Neill (n 173) 394 (‘It can be stated with some confidence that English law does not recognise [a right of privacy]’); Home Office, Lord Chancellor’s Office and Scottish Office, Report of the Committee on Privacy (London, HMSO, 1972) Cmnd 5012 (‘the Younger Committee’) 287 (‘English law does not recognise a right of privacy, in the sense of providing civil or criminal remedies against invasions of privacy as such’); Kaye v Robertson [1991] FSR 62. 177 Wainwright v Home Office [2004] 2 AC 406, [32] (Lord Hoffmann). See also Campbell v Mirror Group Newspapers [2004] 2 AC 457, [11] (Lord Nicholls). 178 Younger Committee (n 176) [630]; Law Commission, Breach of Confidence, Working Paper No 58 (London, HMSO, 1974) [1]. The sentiment was echoed in G Phillipson and H Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63 MLR 660, 662. 179 R Wacks, Personal Information: Privacy and the Law (Oxford, OUP, 1989) 108, 132; Phillipson and Fenwick (n 178) 670–72. 180 Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595, [2006] QB 125, [53]. Lord Phillips MR, giving judgment for the Court, indicated that the Court found it far from satisfactory ‘to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion’. 181 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, [14] (Lord Nicholls) (‘This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship.’)

Prince Albert v Strange 265 led the courts to pay greater heed than previously to the case law of the European Court of Human Rights—and, in this context, particularly to the case law on Article 8 ECHR. Although the transformation of breach of confidence into a tort of ‘misuse of private information’ (as Lord Nicholls described it in Campbell v Mirror Group Newspapers) was abrupt,182 there have been occasional attempts to link the new case law back to Prince Albert v Strange—to position that case as a ‘leading case’. In Douglas v Hello! Ltd (No 5),183 Lindsay J began his analysis thus: At the broadest level of generality it can be said that equity offers remedies where a breach of an appropriate confidence, personal or commercial, is threatened or has occurred. There is nothing new about the availability of remedies in either type of confidence—see, for example, Prince Albert v Strange (1849) 1 H & T 1, a case as to personal confidence but in which authorities on commercial confidence are cited.

On appeal, Lord Phillips of Worth Matravers MR (sitting in the Court of Appeal) sought to emphasise that Prince Albert was not merely the ‘origin’ of the law of confidence, but importantly was a case concerned with privacy:184 We now turn to consider the law of confidence as it has developed up to this point. We start with Prince Albert v Strange (1849) 1 Mac & G 25. Prince Albert obtained an injunction restraining the defendant from publishing a catalogue of etchings made by himself and Queen Victoria. One ground for the grant of this equitable remedy was that the information in the catalogue must have been obtained by breach of trust, confidence or contract. The information in question was personal, not commercial, although the defendant intended to make money out of it, and Lord Cottenham LC remarked that ‘privacy is the right invaded’.

Lord Phillips MR’s motives in drawing the link were not clear,185 but it is evident that the effect is to treat Prince Albert v Strange as if it had been decided on the basis of the protection of informational privacy, rather than merely being a seminal case on the action for breach of confidence. More recently, in Tchenguiz v Imerman, Lord Neuberger MR observed that186 [t]he earliest cases on the topic pre-date even the days of Lord Eldon LC. However, the jurisprudence really starts with a number of his decisions and then

182

[2004] 2 AC 457, 465, [14]. Douglas v Hello! Ltd (No 5) [2003] EMLR (30) 641, 701, [181]. 184 Douglas v Hello! Ltd (No 3) (n 181) 150, [54] (emphasis added). 185 While the creation of a genealogy in this way might be seen as a strategy by which to confer legitimacy on recent developments, this hardly seems to have been Lord Phillips’s motivation, given that in the previous paragraph he had expressed a degree of discomfort with using the action for breach of confidence to protect privacy interests. 186 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] Fam 116, [55]. 183

266 Lionel Bently continues throughout the nineteenth century. There are many reported cases but it is convenient to start with the celebrated case of Prince Albert v Strange ...

In the following paragraphs,187 Lord Neuberger MR (like Phillips MR in Douglas) highlighted Lord Cottenham’s statement that ‘privacy is the right invaded’, though on this occasion it was not abstracted from the surrounding proposition: ‘in the present case, where privacy is the right invaded, postponing the injunction would be equivalent to denying it altogether.’ Of course, these cases might be said to be continuing the established tradition of recognising Prince Albert as the leading case on ‘breach of confidence’,188 or even on ‘breach of confidence with respect to personal information’ (as it had been in Copinger since the section had been reworked by John Mummery for the 11th edition in 1971).189 That said, one can see that there is more to positioning Prince Albert as a ‘leading case’ on the tort of undisclosed private information. First, this would embed the new action for the protection of undisclosed private information within the seamless ‘body’ of common law. In turn, such a contextualisation might avoid the characterisation of privacy protection as ‘foreign’ and unfit for English legal culture (as some commentators have even characterised Warren and Brandeis’s intervention in the US).190 Secondly, to embed the case in this way might help to secure the longevity of the developments from the political threats to repeal the Human Rights Act 1998.191 Thirdly, placing Prince Albert centre-stage might justify reliance on the jurisprudence from the United States, which (as we have noted) grew from the Warren and Brandeis intervention that itself relied on Prince Albert. Indeed, two leading scholars have explicitly made such a claim that US jurisprudence ‘is particularly relevant to the development of a cause of action from the same roots’.192 The same root is Prince Albert v Strange. Thus there are tendencies to reposition Prince Albert as the ‘leading case’ on the protection of ‘undisclosed private information’. Of course, there are impediments too: not least, widespread belief that English law did not offer 187

[2011] Fam 116, [57]. Cf Campbell v MGN Ltd [2004] 2 AC 457, [43]–[45] (Lord Hoffmann) (referring to Prince Albert, noting the emphasis on privacy but explaining that the case depended on the prior existence of a confidential relationship between the Royal engravers and their printer). 189 EP Skone James, Copinger and Skone James on Copyright, 11th edn (London, Sweet & Maxwell, 1971) 39, [96], ‘Private and Personal Facts’. 190 James Q Whitman, ‘The Two Cultures of Privacy: Dignity Versus Liberty’ (2004) 113 Yale Law Journal 1151, 1202. 191 This latter strategy is, to a certain extent, achieved by treating the speech of Lord Goff in A-G v Guardian (No 2) [1990] 1 AC 109, 281, as a ‘turning point’ in the law: see OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21, [2008] AC 1, [272] (Lord Walker) (‘The most important single step in the course of the law’s recent development has been the speech of Lord Goff …’). To similar effect, see [2008] AC 1, 87, [307] (Baroness Hale). Most of what emanated from Lord Goff might as readily have been ignored as ‘obiter dicta’. 192 Philipson and Fenwick (n 178), 662 n 15. 188

Prince Albert v Strange 267 any claimants any such cause of action until recently. That consciousness may ultimately turn out to be too big a stumbling block to this ‘celebrated’ case becoming a ‘leading case’ for the third time in 160 years.

D. CONCLUSION

In William Smith’s conception, the use of leading cases was in part a pedagogical device, premised on the importance of learning how to elucidate legal principles from the case law. In its original conception, then, a ‘leading case ’ is one that others follow, and likely elaborate: the leading case perhaps being (as lawyers like to say) the ‘fons et origo’, or, if not foundational, a critical reformulation. Conceived in this way, the idea of a ‘leading case’ assumes that judicial development of law involves an evolutionary logic— the leading invention is a macro-shift, one that is followed by a series of refinements. Moreover, the method assumes the case as a receptacle of a legal principle that can be uncovered by the student who is able to excavate through the specific factual application. The principle is to be found by the student merely by carefully reading the case. The approach was regarded as hugely attractive in the United States, as soon as the proliferation of case law was starting to be perceived as a real problem.193 The technique was famously endorsed by Langdell at Harvard from the 1870s, and, despite subsequent shifts in legal theory, the language of the ‘leading case’ has maintained a central position in legal commentary and judicial thought ever since. The legal historiography of Prince Albert v Strange, however, highlights a contradiction intrinsic in the notion of a ‘leading case’. There can be few cases that have so frequently been referred to as a ‘leading case’ as Prince Albert, and yet the historiography shows that there have been significant shifts in what the case is supposed to represent. It has gone from being a ‘leading case’ on copyright to one on confidence, and is fast becoming one on the protection of informational privacy. Thus it is evident that the ‘principle’ that the student is expected to elicit from the case never was a matter simply residing in the case, waiting to be uncovered or to be articulated just from reading the case. The elevation of one case above another, and one principle over another, results from a process of reinterpretation that may occur long afterwards, by judges, lawyers and scholars. Commonly, the process of identifying one decision as a leading case, appealing as it inevitably does to the past, reaffirms the stability of law, at the very moment that it develops it.

193 G Ross, Leading Cases in the Commercial Law of England and Scotland (Philadelphia, Pa, T & JW Johnson, 1854–58) vol 1, iii.

9 Ramsden v Dyson (1866) NICK PIŠKA

I beg to say that in all this controversy … I have not in the slightest degree thought of, and I hope not spoken of, Sir John in his private individual character. I have simply looked upon him as a power. (Letter to the editor of the Huddersfield Chronicle, 18 April 1860)

A. PRELUDE

T

HERE ARE BROADLY two approaches to the history of landmark cases: one questions the authenticity of the case (did it introduce or make possible a turning-point in the existing legal order?), while the other questions the truth of the case (what did the case really decide?), although the former is often answered by way of the latter. Such historical investigations are premised on the belief that the case (by which is usually meant the judgment) conceals a truth that is waiting to be discovered, that the case can be unfolded in such a way as to reveal its true meaning. This is true of both doctrinal and contextual historical analyses of landmark cases. Ramsden v Dyson1 is, in many respects, a prime candidate for such treatment: although it wasn’t considered to be of much doctrinal significance at the time, it has come to be considered the foundation of the modern law of proprietary estoppel, despite an ambiguity remaining as to the nature and scope of the decision that stems from the different ways in which the majority and the more influential dissenting opinion expressed the relevant principle. However, in this chapter I refuse the temptation to pursue the ‘truth’ of the case. Instead, I approach Ramsden as the surface effect of temporally and spatially dispersed political and discursive events, and ask how local disputes encounter political struggles and mobilise the language and authority of equity. In this way I build around the juridical event a ‘polyhedron of intelligibility’, a form of description which multiplies the domains of reference, relations described and elements that are brought

1

Ramsden v Dyson (1866) LR 1 HL 129.

270 Nick Piška into relation, in order to rediscover its conditions of possibility, to make visible its singularity. In so doing I shift the question of the case, the juridical event, from its truth to its becoming.

B. PROPERTY PRACTICES AND SOCIO-ECONOMIC DEVELOPMENT IN HUDDERSFIELD

The House of Lords gave its decision in Ramsden v Dyson on 11 May 1866, but the events leading to it began just under a century earlier in what was then the small market town of Huddersfield in the West Riding district of Yorkshire. Until 1920 the vast majority of the freehold to the land in Huddersfield was held by the Ramsden family.2 The Ramsden Estate in Huddersfield begins with the marriage of William Ramsden to Joanna, the daughter of John Wode (or Wood) of Longley in Almondbury, near Huddersfield, in 1531. On her death, William inherited her dowry of land, shops and workshops in Huddersfield. William left a substantial estate to his brother John in 1580, who in turn left it to his son, who purchased the Manor of Huddersfield from Queen Elizabeth I in 1599. A major step in the industrial expansion of Huddersfield was the obtaining of a Market Charter in 1671 from Charles II by John Ramsden, a staunch Royalist and also the first baronet. The Ramsden family had also been an enterprising family of clothiers, and the market held on Tuesdays was predominately for the purchase and sale of cloth, initially held in the churchyard but in 1766 moved to the Cloth Hall built by the third baronet, Sir John Ramsden. However, it is with the fourth baronet—another Sir John Ramsden—that this story begins. Sir John inherited the freehold to Huddersfield in 1769. He was a major influence in the industrialisation of the town, building canals at his own expense and enlarging the Cloth Hall. As one pamphlet later explained, at the time Sir John inherited,3 [t]he town of Huddersfield was a small insignificant midway resting place, between Manchester and Leeds, having very little trade, and that in low woollens. No sooner had the late Sir John entered on his heritage, than he set about devising such plans and projects as would be calculated to encourage enterprize, and to render the district as productive to its landlord as its qualifications and local advantages appeared calculated to render it.

2 The following account of the early history of Huddersfield is based on C Stephenson, The Ramsdens and their Estate in Huddersfield: the Town that Bought Itself (Almondbury, Huddersfield Public Libraries, 1972). 3 ‘Idem’, The Huddersfield Tenant-Right Question, including some account of the Origin of Tenant Rights, and a brief history of the Tenant Right Movement from the period of the first interference with that tenure up to the present time (Huddersfield, 1860) v.

Ramsden v Dyson 271 Despite this, Sir John showed little interest in the active management of the Estate or in Huddersfield, visiting the area only twice during his lifetime.4 The management of the Estate was left entirely to his land steward, John Bower, and Bower’s local agent, Joseph Brook.5 Jane Springett explains the role of each:6 Bower visited Huddersfield twice a year, on rent days and to audit the accounts. He usually stayed two weeks, during which time he would examine applications for land, fix rents and, if requested, draw up leases for which he charged a fee of fifteen guineas. For the rest of the year a local part-time agent, Joseph Brook, was responsible for recording any applications for land, staking out the plots and provisionally fixing rents.

Most people held dwelling property as tenants-at-will; according to Stephenson, the first recorded lease in Huddersfield was not until 1780.7 A practice was established whereby an application would be made for a plot of land. As Bower visited only twice a year, the application would often be made through Brook, which would involve treating Brook to a pint in his pub before visiting the land, where the plot would be measured and rent fixed. The prospective tenant would then enter possession and build their property. On completion, the tenant would attend Longley Hall, where they would be entered on Sir John’s rent-roll.8 The tenant could either take a 60-year lease, renewable on the payment of a fine, usually double the rent, every 20 years forever, or they could be entered on the rent-roll without a lease, what became known as ‘tenant-right’. Brook and Bower inculcated a belief that there was no need to take a lease—indeed that it would be ‘folly’ to take a lease—that Sir John would never disturb their possession, and if they ever required a lease then one would be granted. The tenant-right property was treated in much the same way as any other form of property, with tenants being able to transfer, sell, bequeath and mortgage their tenant-right, the transaction being entered on the rent-roll at Longley Hall. Overall, it was a very informal practice, and in many respects the lease was considered a mere formality. In 1816 the way in which the fine was calculated for renewal of the 60-year lease was changed, which led to a sharp decline in the uptake of

4 J Springett, The Mechanics of Urban Land Development in Huddersfield 1770–1911 (PhD thesis, University of Leeds, 1979) 153. 5 On land stewards and agents in this period, see D Spring, The English Landed Estate in the Nineteenth Century: its Administration (Baltimore, Md, Johns Hopkins Press, 1963) 97–134. 6 J Springett, ‘Landowners and Urban Development: the Ramsden Estate and Nineteenth Century Huddersfield’ (1982) 8 Journal of Historical Geography 129, 132. 7 Stephenson (n 2) 6. 8 Jane Springett points out that even these formalities were often overlooked, with people erecting buildings without permission; and if they did so they were not made liable for arrears: Springett (n 6) 132.

272 Nick Piška leases. Springett explains that by 1840, ‘tenants viewed tenancy-at-will as a cut price perpetual lease for which no fine had to be paid’.9 However, tenant-right wasn’t simply a cut-price version of the 60-year lease; it was a property system which made possible the expansion of Huddersfield. The only way an expansion in trade could occur was with an increase in population. In the period from 1801 to 1841 Huddersfield’s population more than trebled, rising from 7,268 to 22,744.10 This required an increase in the number of dwelling houses. With a cheap alternative to the 60-year lease, working men could invest their smaller incomes in erecting dwellings without worrying about paying fines. To this end, numerous money clubs, building clubs and other mutual workers’ associations were established, where workers would pay into a fund, which would then contribute to the ‘purchase’ of the plot, with the association being entered as mortgagee on the rent-roll.11 This allowed the workers not only to build their own dwellings, but also to ‘own’ them. Sir John died in 1839. By way of will he settled the Estate on his grandson, Sir John William Ramsden (‘Ramsden’), as life tenant.12 As Ramsden was a minor, the management of the Estate fell to trustees until he came of age.13 The will did not include any power to grant leases, nor to renew existing leases, until Ramsden was of full age. This problem was resolved in 1844, when the trustees obtained a private Act of Parliament extending their leasing powers.14 The preamble to the Act, after setting out the terms of Sir John’s will and the settlements, confirmed the practice of leasing that took place up to the death of Sir John: And whereas by reason and on the Faith of the Uniformity of the System or Manner of dealing with the said Lands and Hereditaments, and the Fulfilment by the said Sir John Ramsden of the Expectations or Promises so raised or given by his Steward or Agent, many Persons were induced to erect Houses and Buildings on the said Lands and Hereditaments of the said Sir John Ramsden in the said

9

Springett (n 6) 133. Figures in Springett (n 4) 52. On the growth of Huddersfield generally, see H Marland, Medicine and Society in Wakefield and Huddersfield 1780–1870 (Cambridge, CUP, 1987) 7–51. 11 On money and building clubs in this period, see PHJH Gosden, Self-Help: Voluntary Associations in Nineteenth Century Britain (London, BT Batsford Ltd, 1973). 12 Sir John’s son, John Charles Ramsden, having died during Sir John’s lifetime. The will separated what was known as the ‘settled estate’ and the ‘devised estate’. The settled estate, created on the marriage of Sir John’s son to Isabella, made Ramsden a life tenant, with a right to break the settlement when he came of age, while the devised estate was held by trustees during Ramsden’s life, and after his death for the use of his male heirs successively. 13 The trustees included Lord Fitzwilliam and Lord Zetland, both large landowners in their own right, brothers to Ramsden’s mother, Isabella, who was also a trustee. 14 7 & 8 Vic c 21. In 1848 the trustees obtained another private Act of Parliament, in conjunction with the Huddersfield Improvements Act, mainly to give them further powers to raise capital on the Estate, but also powers relating to improvements on the Estate: 11 & 12 Vic c 14. 10

Ramsden v Dyson 273 Townships of Huddersfield and Almondbury … without written Agreements … And whereas at the Time of the Death of the said Sir John Ramsden many Persons who had applied for and taken Land as aforesaid had erected and built Houses and Buildings, and were in the Course of erecting Houses and Buildings, on the said Lands and Hereditaments, but the Leases of such Land, Houses, and Buildings had not been granted …

The Act was for those wanting a lease, but no distinction as a matter of practice was drawn between tenants entering possession and wanting a 60-year lease, and those entering possession and continuing in possession as tenant-right holders. The Act provided powers to grant 60-year leases to those who built on the basis of the tenant-right system, and to renew such leases as Sir John would have been bound to renew had he still been living, as well as giving powers to grant original leases not exceeding 60 years. During this period John Bower died and George Loch became the trustees’ land agent. Loch was careful to tend to the needs of the tenantry. As a pamphlet from the time pointed out:15 ‘The utmost unbounded confidence was placed in Mr Loch, while his intelligent and enlightened superintendence of the Estates, inspired the people with the utmost reliance in his wisdom.’ Joseph Brook was replaced by Alexander Hathorn as a full-time local agent, assisted by Thomas Brook as full-time surveyor. This signalled a change in the way the Estate was managed. Now the building processes were more strictly supervised by the land agents, who were required to send daily and weekly reports to Loch. The purpose of this was both to increase rents and to control the quality of building. Nevertheless, throughout this period the tenant-right system of acquisition, transfer and mortgage continued, and the general understanding that a lease would be granted when necessary was confirmed when the land agent deemed it necessary to grant leases to tenant-right holders in order for them to receive compensation when their land was required for the building of the railway.

C. QUESTIONS OF SECURITY: THE FIRST DEPUTATION

In 1851 the population of Huddersfield was approximately 30,880. The following year Ramsden came of age. Following the rapid growth of Huddersfield, his role was not simply that of the aristocratic landowner, but rather that of the urban landlord in Victorian England. In this context Ramsden wanted to improve the security and the efficiency of the leasing system, and appointed Mr Nelson, a London solicitor, to help him with the management of his estate, causing Loch to resign. In the years that followed, the tenantry became increasing anxious as to the security of their

15

‘Idem’ (n 3) 1.

274 Nick Piška tenure. Leaseholders were concerned with increasing rents and fines, and the tenant-right holders both with rents and the possibility of dispossession with or without compensation for the capital expended on the land. Once appointed, Nelson sought to increase both the rents and the security of tenure on the Estate. The key means of doing this was encouraging the granting of leases, which had a higher rate plus a renewal fine. However, as Springett points out, while Loch ‘was very conscious of the need to maintain the tenant’s confidence in the estate in order to promote its continued development, particularly in handling tenancies at will,’ Nelson ‘was more concerned with legality and considered tenancies-at-will detrimental to the interests of the estate since they lowered the potential annual income. The way he achieved its abolition completely undermined the confidence upon which Loch had set great store’.16 The first tactic was to refuse to permit the erection of dwellings on tenant-right tenure. A second tactic was to require the signing of a declaration in the transfer or mortgaging of tenant-right that it was held as ‘tenant-at-will’. The third was a refusal to enter transfers on the rent-roll at Longley Hall, in effect bringing to an end the system of tenant-right conveyancing, but also undermining the security of the whole property and lending market in Huddersfield.

(1) Ramsden v Swift and the Auction Incident The tension this caused with the tenantry came to a head with two events in 1858. In the Yorkshire Spring Assizes an action of ejectment was brought against Frederick Swift, a tenant-right holder, in Ramsden v Swift.17 The facts as reported are relatively brief. In 1803 Swift’s father occupied the property. In 1842 the father died, passing the leasehold in dispute to his three sons as executors. In 1853 notice to quit was served on Swift. Counsel for Swift agreed that a verdict should be returned for Ramsden. The impact of the case was crucial: it decided that as tenant-right holders had no legal title, they were simply tenants-at-will, and as such Ramsden was entitled to evict them without notice. This had obvious implications not only for the holders of tenant-right, but also for the money and building clubs and the progress of Huddersfield more generally. The spectre of the Swift case hangs over the whole tenant-right affair. Why did Ramsden want to evict Swift? On Ramsden’s behalf it was argued that Swift was withholding the benefit of the inheritance from certain beneficiaries under the will,

16

Springett (n 6) 137. Leeds Mercury (13 March 1858); The Times (15 March 1858). I used the British Library’s online 19th-century newspaper archive for this project. Footnote references to the Huddersfield Chronicle and Leeds Mercury will be HC and LM, respectively, hereafter, followed by the date of publication. 17

Ramsden v Dyson 275 and consequently Ramsden’s agent intervened to assist the beneficiaries, the costs of which were borne by the Estate, and a lease was granted to the rightful beneficiaries. A local newspaper, the Huddersfield Chronicle (‘Chronicle’), argued that things were very different; Swift was willing to carry out the terms of the will, but the Estate’s agent had refused to recognise the sale of the property in order to impose a lease with a higher rate of rent.18 The Chronicle’s concern, in principle, was that Longley Hall had appropriated jurisdiction of probate over wills concerning tenant-right. The greater concern was that it authorised the dispossession of tenant-right holders without compensation. The second event in 1858 is reported in the Chronicle as ‘Tenant-Right Confiscation on the Ramsden Estate’. The article explains that there was a19 settled design to violate and set aside the understanding upon which the owners of Tenant-right property had been induced and encouraged to build; a design, in fact, to confiscate this Tenant-right property by taking advantage of the letter of the law in violation of its spirit, and in defiance of all the claims and considerations of equity and honourable dealing.

The event was the sale at auction of tenant-right property left by the late Thomas Kilner. The auction commenced in the usual fashion, but when it came to the sale of the tenant-right property the auctioneer stated that it was his ‘painful duty’ to explain that the tenant-right property could not be sold as a consequence of information he had received that morning. This produced ‘considerable sensation in the room’. Mr Floyd, a solicitor, admitted that he had received a note from Ramsden’s solicitors, Messrs Fenton, Jones and Rayner, stating that the tenant-right was Ramsden’s and that his rights must be respected, but that he had considered this to be purely a matter of form, it having been given in numerous previous transfers. On the night before the auction, Kilner’s trustees received notice that it was at their peril if they sold the property, but that out of respect for the testator, Ramsden would be willing to transfer the property on condition that the purchasers take a lease for the term of 99 years ‘dating from the time when the late testator became possessed of the property’. Floyd added that if Ramsden were to die then the lease would be determined, so the purchasers would purchase at the risk that Ramsden could die at any moment. He then referred to the justice of the matter, the meanness of Ramsden, and how the uncertainty could have an impact on the peace and prosperity of Huddersfield. The editor commented that this event at the auction demonstrated the real intentions of the Estate, which was to undermine the old scheme of tenant-right and replace it with a new system of leasing on

18 19

Also see LM (30 May 1864); LM (31 May 1864). HC (12 June 1858).

276 Nick Piška 99-year leases, a form of building lease common to London with which Nelson was familiar.

(2) A Great Meeting at Philosophical Hall Shortly thereafter a notice was placed in the Chronicle of a meeting regarding the Ramsden Estate management.20 The notice announced that there had been a requisition to the Constable to convene a public meeting, signed by upward of 3,000 tenant-right holders and other inhabitants of Huddersfield—‘the names of quiet, sober, hardworking, and saving men— men who have toiled, and sweat, and who have almost denied themselves the necessaries of life, in their anxiety to get together the means for “a cottage of their own”’—who had together spent at least £750,000 building upon Huddersfield, previously considered good security by lending institutions. The intention was to appoint a deputation to Ramsden that no change in the system of leasing be made, particularly the introduction of 99-year leases, and that measures be immediately taken for the peace and prosperity of Huddersfield that equitably and honourably secured the tenant-right owners in possession of their properties. The meeting had the sole purpose of appointing a deputation to confer with Ramsden, clothing the appointed deputation with the moral support of the public. In July a great meeting was held at the Philosophical Hall.21 Moving the first resolution, that a deputation be appointed to wait upon Ramsden to endeavour to effect a satisfactory arrangement with respect to tenantright property, John Freeman gave an account of the property practices in Huddersfield. He stated that ‘[a] more simple and perfect system of transfer and recognition of ownership you can scarcely conceive’. Freeman pointed to the major decline in the building trade between 1854 and 1858, the cause of which he put down to the insecurity of tenure and the consequent lack of investment from money and building clubs. One Mr Clough then spoke in support of the resolution. Unlike Freeman, he stated that the tenant-right system was as bad a system as possible and that some change was needed, in particular that tenant-right and leasehold should be amalgamated under a 999-year lease. He pointed out the ‘murderous expense’ involved in the 60-year renewable leases. A second resolution appointed the deputation, and a third that the deputation would include a compilation of facts and statistics regarding the practices and benefits of tenant-right. Someone then explained the powers under the will and settlement, the effect of the 1844 and 1848 Acts, and that Ramsden could only do what was within his

20 21

HC (17 July 1858). HC (31 July 1858); LM (31 July 1858); Manchester Times (31 July 1858).

Ramsden v Dyson 277 powers. The meeting was adjourned until the deputation returned from the interview with Ramsden. In this first meeting various policy aspects of ‘tenant-right’ were brought into play. First, the economic benefit to the tenant-right owners and the money and building clubs. Secondly, the economic benefit to the Ramsden Estate of the speed with which tenant-right allowed Huddersfield to expand, therefore increasing the rent-roll. Thirdly, the economic benefit that would accrue to the Ramsden Estate if the buildings were ‘confiscated’ without compensation. Fourthly, the concern with the economic growth of Huddersfield as a market-town, and with maintaining the spirit of the population. Fifthly, the legal aspect of the claim—the powers under Ramsden’s settlement, whether the tenant-right holders were entitled to a lease, and the consequences for conveyancing and will-making. Finally, the moral claims against Ramsden, and how it would affect his honour. All these arguments were put forward by the deputation to Ramsden.

(3) The Deputation The deputation met Ramsden on 24 August 1858.22 The memorial presented to Ramsden included an historical account of tenant-right and statistics demonstrating its benefits to Huddersfield; it argued that the reason for Huddersfield’s prosperity was its distinctive property system which acted as a ‘stimulus to prudence’, ie investment in the soil. The memorial appealed to Ramsden as a young statesman—Ramsden had previously been MP for Taunton and the West Riding, and was then canvassing in the West Riding—to understand the working-man’s position. The memorial also commented on the position of the money and building clubs, and the money invested in the land. The deputation were careful not to make demands but pointed out that the 99-year ‘system of leasing would prove highly injurious both to you and to the town’, and that the buildings in Huddersfield were built in a superior manner (they were generally built of stone) to those areas which granted 99-year leases. The deputation concluded that their object in bringing the memorial was to have the issue ‘equitably arranged’. There followed a three-hour discussion with Ramsden. The deputation specifically referred to the Swift and Kilner incidents. Ramsden said he never intended to raise the ground rent to a rack rent, but wanted a fair rent for his land according to the circumstances of each plot. The deputation explained the impact of the stopping of transfers on the tenant-right system, namely that it had brought the building and property industries to a

22 The memorial presented to Ramsden and the deputation’s report were printed in the Chronicle: HC (11 December 1858). Also see LM (11 December 1858).

278 Nick Piška standstill. Ramsden expressed his regret, but he had made up his mind that a more settled system should be adopted, and again referred to inadequate rentals of tenant-right property compared to leasehold property. There was some discussion of Ramsden’s powers to grant such leases and bind his successors. Ramsden suggested leaving a statement addressed to his successor to respect 99-year leases, but the deputation pressed on Ramsden that only an Act of Parliament would be adequate. The deputation emphasised the need for security, particularly given the liabilities to which tenant-right had been subjected, such as money clubs. Ramsden also ‘expressed a very decided resolution to grant no more renewable leases, that future leases should be for a fixed term of years’ and that 99 years was as valuable, according to an actuarial valuation, as the renewable leases. The deputation was satisfied that Ramsden entertained cordial feelings towards the tenantry and that he wished to give some sort of security to the tenant-right holders. The result of the deputation was that Ramsden never intended, nor did he currently intend, to charge more than a fair and equitable rent, and that Ramsden intended to get additional leasing powers by way of Act of Parliament.

(4) A Cause for Celebration A year later a meeting was held in the Philosophical Hall in order for tenant-right holders to express their opinions on Ramsden’s Estate Bill.23 The meeting took place at 6pm, too early for many tenant-right holders to attend but necessary in order to communicate views to Ramsden that night, as the Bill was at a late stage in Parliament. It was explained that the deputation had received a letter from Nelson stating that a committee should be appointed to consult with him on the terms of the Bill. The first version of the Bill was considered objectionable by the committee, as the terms of the proposed leases deprived the tenant of much of the value of the lease through back-rentals, fines and so on. Two judges appointed to comment on the terms of the Bill made similar remarks to the deputation, so Ramsden brought a new Bill which included powers to grant 99-year and 1,000-year leases. But when the Bill went before Lord Redesdale, chair of the House of Lords committee on private bills, the power to grant 1,000-year leases was struck out. Members of the deputation went before Lord Redesdale to argue that it was of great importance to Huddersfield, and that in reality the power was no more than Ramsden already had in so far as 60-year leases were renewable for life and tenant-right holders should never be disturbed in possession. The deputation reported that Lord

23

HC (13 August 1859). Also see LM (9 August 1859).

Ramsden v Dyson 279 Redesdale would not budge, so the Bill only contained power to grant 99-year leases. A resolution was passed accepting the Bill. The meeting ended with resolutions thanking Ramsden and the deputation, and a statement that ‘the time would come when the town would see the necessity of urging upon [Ramsden] the necessity of granting long leases’ of 1,000 years. The preamble to the Ramsden’s Estate (Leasing) Act 185924 repeats much of the history of the tenant-right system as set out in the memorial, and asserts that it would be ‘expedient and just to the Persons who have so built on the Holdings or have succeeded by Purchase or otherwise to the same in the Expectation of not being so disturbed’, as well as to Ramsden and those interested in remainder in the Estate, and that provision should be made for the granting of leases on long terms of years. On the evening of 10 November 1859 the people of Huddersfield were again assembled in the Philosophical Hall, this time for the purpose of celebration. As reported in the Leeds Mercury, the Philosophical Hall ‘was the scene of a joyous festival—the respectable and numerous tenants of Sir John Ramsden being assembled for the first time in his presence, and all regarding him with the respect and confidence inspired by the resident landlord and the graceful host’.25 A number of speeches were made and many toasts proposed. Ramsden gave a speech stating, amongst other things, that he was glad the tenant-right question had been settled satisfactorily. Toasting to a prosperous and harmonious future, he said he had great pleasure in connecting the toast with the name of Thomas Crosland, a man well-known and widely respected. The Chronicle commented, ‘we hail the proceedings of Thursday as a solid foundation for a sound and enduring understanding, and a pleasant intercourse, between parties who never ought to have been estranged’.26 Jane Springett explains that during this period Ramsden lost faith in Nelson as his representative in Huddersfield, and that his days of being an absentee landlord were over. Ramsden wrote to Nelson just before the tenant-right dinner, explaining that:27 the manner in which I hitherto neglected my duties there and of the injurious extent to which it had reacted on my own character and interests. As absentee I was very ignorant of my own property and as a very ignorant and careless proprietor I delegated to you a vast amount of business which ought properly to have been discharged to myself …

Ramsden resolved to undertake business on the Estate through direct personal intercourse with the town, or else through direct instruction with 24 25 26 27

22 & 23 Vic c 4. LM (12 November 1859). HC (12 November 1859). Quoted in Springett (n 4) 168–69.

280 Nick Piška Hathorn, his resident local agent. It might, then, be thought that with Nelson gone, new powers to grant 99-year leases and Ramsden taking a more active role in the management of the Estate, things would improve. However, things were to get worse before they got better.

D. QUESTIONS OF EQUITY: THE SECOND DEPUTATION

In the same issue of the Chronicle as the deputation’s report in 1858, there appeared an editorial criticising the deputation for settling the future of Huddersfield; the decision of Ramsden not to push for 999-year leases was considered to have a potentially ‘suicidal effect’ on both Ramsden’s own interests and the interests of Huddersfield.28 The reason for this was plain: ‘Who, that is sane, would erect such buildings as are erected in Huddersfield, for a term of 99-years—then to pass away into the hands of the ground landlord?’ The editor noted the equitable claims of the tenantright owners, and stated that questions were still open and needed to be settled through public discussion. A couple of weeks after the tenant-right dinner there appeared in the Chronicle a letter to the editor, signed under the pseudonym ‘A TenantRight Owner’.29 The writer claimed that Ramsden had been placed in a false position in respect of the tenant-right holders by his ‘friends’ (ie the members of the first deputation), and that the tenant-right holders’ meeting at which the Bill was discussed, ‘as far as the tenants-at-will were concerned, was a farce—if it were not altogether “a mockery, a delusion, and a snare.”’ The writer criticised the 99-year leases for not being to the benefit of the tenant-right holders. Indeed, throughout 1859 and the first half of 1860 a series of letters appeared in the Chronicle, usually preceded by an editorial introduction, written under the pseudonym ‘Idem’, passionately critiquing the 1859 Act and emphasising the need for tenant-right action. In May 1860 these letters, together with select extracts from the editorials, were published in pamphlet form under the short-title ‘The Huddersfield TenantRight Question’.30 The focus of the pamphlet’s arguments was that 99-year leases were not to the economic benefit of the tenant-right holders and were to the economic advantage of the Ramsden Estate. First, they were not as beneficial as the tenants-right holders understood their position to be under tenant-right, ie that they would not be disturbed in possession as long as they paid their

28

HC (11 December 1858). HC (26 November 1859). 30 The full title was The Huddersfield Tenant-Right Question, including some account of the Origin of Tenant Rights, and a brief history of the Tenant Right Movement from the period of the first interference with that tenure up to the present time. 29

Ramsden v Dyson 281 rent, which was lower than that proposed under the 1859 Act, which also included more burdensome terms regarding the maintenance of the property. Secondly, they were not as beneficial as the 60-year lease to which they believed they were entitled. To this end, the pamphlet provided an economic analysis of the overall cost of rent and fines under the 60-year lease and the 99-year lease in order to demonstrate that Ramsden’s actuary was incorrect in his assertion that the 99-year lease was as valuable as the 60-year renewable lease. Thirdly, the 99-year lease gave Ramsden a windfall as the houses were built of good stone that would last 999 years. A more general concern expressed was that the quality of building in Huddersfield would drop if 99-year leases were adopted, compared to the nearby Thornhill Estate which gave 999-year leases and already had a much higher quality of building. Circulating these arguments were comments regarding Ramsden’s honour and the ‘equity’ of the tenant-right claims. In June 1860 ‘one of the largest and most enthusiastic meetings ever held in Huddersfield took place in the Philosophical-hall’.31 About 2,000 people—including female tenant-right holders, safely located in the orchestra pit—were present, most notably Frederick Robert Jones Junior, Joshua Hobson and Thomas Crosland. The purpose of the meeting was to bring to Ramsden’s attention the tenant-right owners’ dissatisfaction with the 99-year leases and to form a Tenant-Right Owners’ Defence Association (hereafter ‘TRDA’). The chair of the meeting and the TRDA was Frederick Robert Jones Junior, a supposedly reluctant public speaker and formerly a solicitor in the partnership which acted for the Ramsden Estate on matters of tenant-right, Messrs Fenton, Jones and Rayner. Jones’s opening speech stated the various objections to the 99-year leases, and a debate ensued on the justice of those leases. The tenant-right holders didn’t want to appropriate from Ramsden what was rightly his, but they expected him likewise to give the tenant-right holders their due. This balance was posed in the form of a question of equity: ‘Are the 99 years’ leases in equity that which meets the whole case, and deals out to you that which is your due?’ This question was answered by reference to the history of property practices in Huddersfield, as a local custom which Sir John knew and on which the tenants relied. Resolutions were passed criticising the 99-year leases, again reciting the history of Huddersfield and the connection of local custom with the workers, and proposing that a second deputation be sent to Ramsden. When Joshua Hobson rose to address the meeting he was greeted with great cheers. He pointed out that this was the first true tenant-right meeting, and consequently he must explain his presence as he was not a tenant-right holder. He said that the fact that he had been asked should be enough, but

31

HC (9 June 1860).

282 Nick Piška additionally his family were brought up within the system and some of them remained tenant-right holders. He criticised the previous deputation and the ‘love feasts’ that occurred on the obtaining of the 1859 Act. He then revealed Jones, chair of the TRDA, as the Chronicle’s correspondent going by the name ‘Idem’: he said that he had given up hope for the tenantright holders until Jones started his campaign against the 99-year leases. Hobson was politically radical: a key player in the Chartist movement of the early nineteenth century, one-time editor of the Chartist Northern Star, occasional correspondent for the Leeds Mercury, and from 1855 to 1871 the editor of the Chronicle, of which the proprietor was Thomas Crosland.32 He was a champion of the working man, an active campaigner unafraid of imprisonment and a great public speaker. He also had previous dealings with the Ramsden Estate. During Ramsden’s minority the conditions of Huddersfield greatly deteriorated; it has been remarked that during this period, ‘[t]he dwellers in the town centre lived in almost unbelievable insanitary conditions and state of squalor’.33 With the alarm of cholera in the late 1840s, and himself coming close to death from cholera, Hobson undertook a campaign for the improvement of Huddersfield, which led to the Huddersfield Improvement Act 1848. An exchange with the Ramsden Estate emerged as a dispute over Sir John’s will, in which he left £20,000 for the improvement of the town, which the Estate interpreted to mean the improvement of the value of the Estate for Ramsden, while Hobson interpreted it to mean improvement for the tenants of the town. In his biography of Hobson, Stanley Chadwick suggests that the seeds of the tenant-right dispute lie in this earlier clash.34 A second deputation, together with a new memorial, was sent to Ramsden.35 There was some urgency in this deputation, as the deadline for applications for 99-year leases was fast approaching. The first deputation had been cordial, involving discussion and debate. The second deputation was very different. Ramsden was in London, and so offered to pay for the deputation to travel to the capital. Jones refused this on the basis that it was improper. On their arrival, Ramsden invited the deputation to lunch. This

32 Hobson was born in 1810, in Huddersfield, and died in 1876. He was also the Poor Law Guardian of Huddersfield. On Hobson, see S Chadwick, ‘A Bold and Faithful Journalist’ Joshua Hobson 1810–1876 (Huddersfield, Kirklees Libraries and Museums Service, 1976); S Cordery, ‘Joshua Hobson and the Business of Radicalism’ (1988) 11(2) Biography 108. On Chartism, Hobson and the Chartist press, see D Thompson, The Chartists (Hounslow, Temple Smith, 1984); A Briggs (ed), Chartist Studies (London, Macmillan Press, 1959); JK Walton, Chartism (London, Routledge, 1999). 33 Chadwick (n 32) 44. 34 Ibid, 47. 35 HC (11 August 1860). See LM (28 August 1860) for the text of the memorial and Ramsden’s reply. A detailed account of the meeting is set out in the report of the next meeting of the tenant-right holders in HC (18 August 1860).

Ramsden v Dyson 283 was also refused. The deputation read Ramsden their memorial, which was more like a set of demands: That your memorialists confidently put it to you, sir, as a gentleman of birth, of education, of feeling, and of honour, and as an Englishman, whether it is proper, and just, and noble, that advantage should be taken of a scintilla of law, and an attempt made to deprive them of, or qualify, a right which in their ignorance they conceived to be unquestionable; and your memorialists feel bound fearlessly, to say they are advised, under all the circumstances of the case, that right—so equitable and so just—can be maintained, if it should be necessary.

Ramsden, in turn, read a prepared reply, suggesting that the 1859 Act was obtained for, and the terms laid down by, the tenants, and that he was unwilling to allow the question of leasing powers to be re-opened. The TRDA was a highly organised union, with an executive committee and local sub-divisions for the different districts, with Jones as chair, the Chartist Hobson as secretary and the Chronicle its key apparatus. What was at stake for the tenant-right holders in this dispute? Most materially it was their homes and the ability to provide for their families and descendants, as well as the continuing viability of the local economy and the confidence of the money clubs in investing in the tenant-right scheme. More generally, though, it was a question of principle: the tenantry’s right to the products of their labour or compensation for that labour as against its appropriation by the landlord. The TRDA, with its Chartist background, was in effect a campaign on this principle.

E. THE MOBILISATION OF EQUITY

On 13 August 1860 another meeting was held at the Philosophical Hall, lasting five hours into the night, at which the second deputation was meticulously reported.36 Tenant-right owners were also informed that the opinion of two lawyers had been sought, Mr Ellis, a recorder in Leeds, and Mr Daniel QC, a Chancery barrister, as to the position of the tenant-right holders based on the principles of equity. Ellis’s opinion was that in terms of strict law the tenants were merely tenants-at-will, and that although copyholds and customary freeholds incorporate local customs, he did not think the facts in this case went so far as to establish a custom that would alter the nature of the estate. Although Ramsden could not force current tenants into 99-year leases, as the 1859 Act was permissive only, he did have power to evict. However, Ellis was of the view that equity might intervene as there had been an oral agreement acted upon by the tenants, and if the terms could be clearly ascertained then equity would enforce 36

HC (18 August 1860).

284 Nick Piška the agreement. However, he warned that this would not necessarily bind Sir John’s or Ramsden’s successors. Daniel QC agreed: the tenants had no right at law, but the position was different in equity. Regarding those taking under Sir John when he was absolute owner, he considered they had a claim to have his representations made good. Regarding those taking under more limited interests, their position was more complicated, but Daniel QC did not consider that they could be evicted without compensation for the value of the buildings erected under the expectation of not being disturbed in possession. This right to compensation might be enforced by an injunction. Daniel QC referred to a number of cases, including The Earl of Oxford’s Case,37 but did not state the principles on which his opinion was based. He advised the tenant-right holders not to accept any increase in rent during this period so as not to disturb any equity that might have arisen, and that one or two test cases might be brought. Resolutions were then read and passed. First, that the TRDA deeply regretted Ramsden’s ‘cold and austere spirit’ towards the tenant-right owners. Secondly, that the TRDA exercise the option of not applying for 99-year leases. Thirdly, that the TRDA be brought into active operation and that a fund be collected from its members. In a letter to the editor appearing in the same issue of the Chronicle as the report of the meeting, Jones, the chair of the TRDA, set out the principles of equity relevant to the future action of the tenant-right owners. He drew attention to Daniel QC’s reference to The Earl of Oxford’s Case, in particular the reference to the law of God, equity and good conscience speaking for the claimant, and the law of the land not speaking against the claimant. He then drew an analogy between that case and the tenant-right owners’ case, and stated that ‘the Tenant-rights carried with them an equity—such an equity as had been, ages before, pointed out by Lord Ellesmere’, and that Ramsden had attempted to defeat such an equity through requiring tenants to sign a piece of paper on the transfer or mortgaging of tenant-right property saying that they held property as ‘tenant-at-will’. Jones attached no importance to this; it was regarded as a mere formality introducing no substantive change. Neither could the 1859 Act deprive them of their equity. Again citing The Earl of Oxford’s Case, he explained that in equity a person who has expended money on improvements on another’s land, and the other stands by and allows them to do so, will be entitled to be indemnified for such expenditure with pecuniary compensation; and as it is inequitable for the owner to profit from his fraud, he will be interdicted from proceeding at law. He then alluded to Dann v Spurrier,38 and said

37 38

(1615) Rep Ch 1, 21 ER 485. Discussed by David Ibbetson in ch 1 of this volume. (1802) 7 Ves Jun 231, 32 ER 94.

Ramsden v Dyson 285 that Ramsden would be compelled to compensate the tenant-right holders in equity: The Chancellor will ridicule and squash the whole—and for these reasons, namely:—that the applications have been made in fear and panic; that many tenants were not informed of the amount of the increased or revised rents which will be charged upon them; and that in no instance were the terms of lease stated. chancellors do not allow ignorant men to bind themselves when blindfolded.

After Jones’s letter, the editor of the Chronicle (Hobson) set out the relevant principles in point-by-point form, again citing The Earl of Oxford’s Case and alluding to Dann v Spurrier, to the effect that tenant-right holders could not be dispossessed or rent raised without Ramsden either giving a lease on the old terms, or providing monetary compensation to the present value of the buildings on the land. Further opinions of Daniel QC were taken and reported at a meeting of the tenant-right owners in September 1860.39 Amongst other things, he distinguished two types of case: those where there had been a promise and performance of the promise will provide a lease; and those where there was no promise but a lien would be provided for the present value of expenditure on the land which might also protect possession. He considered that the 1844 Act’s preamble provided evidence against the Ramsden Estate. Resolutions were then made to protect equitable rights by maintaining rent at its current rate, and that any attempt to dispossess a tenant-right holder would be resisted. At this point the language becomes militaristic and political: Mr Cowgill, of the Rifle Volunteer Corps for Defence of Land, stated there was more to fear of Ramsden than with Napoleon III, and that every tenant-right holder must do their duty; and Mr Halstead referred to the middle-class property reverting to the aristocracy and said that the tenant-right struggle was a process of levelling. November was a busy month in Huddersfield, as it was the month of the Ramsden Rent Audit. It also included something of a scandal and another aggregate meeting of the tenant-right owners. On 10 November 1860 the Chronicle reported what it called ‘a new element in the tenant-right agitation’ involving secret meetings between the Constable, Mr Wright Mellor, and certain members of the first deputation to Ramsden.40 This was a strange incident. Invitations had been sent by the Constable, only intended for a small group, but a much larger group attended. Once the Constable had been forced to leave, a tenant-right rally took place, with a number of the members of the first deputation changing their allegiances and remaining. This created a stronger bond between tenant-right holders against 39 40

HC (22 September 1860). Also see HC (3 November 1860). HC (17 November 1860). On the rent-audit, see HC (10 November 1860).

286 Nick Piška those who opposed them. On 19 November there was a meeting of the tenant-right owners, this time at Gymnasium Hall.41 As a consequence of the meeting of the ‘selected few’, Jones stated that the tenant-right movement had taken a potentially political turn, and moved that the TRDA was nonpolitical. This was a response to the Examiner, which had been publishing letters regarding the Chronicle’s political links, particularly the accusation that Hobson was leading the tenant-right holders into a political quagmire. A resolution was then passed appointing Jones as agent and legal representative for the tenant-right holders. In May 1861 Jones published a second pamphlet, containing two letters to the editor of the Chronicle setting out legal arguments.42 Again Jones referred to The Earl of Oxford’s Case, and then stated that43 [t]he discretion of Equity, so to speak, as then, so now, relieves any abuse which may have been superinduced by the strict requirements of law. Its province is to allay the rigour of, and to moderate, law, where law carried out to the letter might lead to oppression. It regulates the principles of law so as to prevent the application of those principles from becoming, contrary to the purpose and the wisdom of their origin, a justification for wrong-doing.

He then looked at the specific principles that might be relevant. First, part performance, and in particular that possession itself was considered to be execution of an agreement. Secondly, strict tenants-at-will were entitled in equity to emblements, that is to profits from corn sown. He considered the analogy with tenant-right to be sufficiently strong that equity would grant relief, either granting the lease to which the tenants believed they were entitled, or else paying compensation in the nature of emblements.44 Thirdly, that the tenants were neither tenants-at-will nor from year-to-year but quasi-leaseholders; they held a 60-year renewable lease in equity on the basis of part-performance and specific performance. Jones also explicitly referred to Dann v Spurrier in support of the tenant-right claim.45 The Huddersfield tenant-right question was therefore framed in terms of equity. The mobilisation of equity manifested itself in two ways: a rhetorical strategy, and a doctrinal strategy. First, the tradition of equity was invoked as part of a rhetorical strategy in which equity was tied to certain values— honour, justice, fairness—and mythologies—the historic mission of equity and its assistance of the vulnerable and ignorant, and the mythology of the

41

HC (24 November 1860). FR Jones, Can the Tenant-Right Owners be Disturbed in Possession? The Question Argued, & Authorities Adduced. TWO LETTERS Reprinted from the ‘Huddersfield Chronicle’ of May 4 & 11, 1861, Containing Proposals for a Settlement of the Question (Huddersfield, 1861). 43 Ibid, 6. 44 Ibid, 8. 45 Ibid, 15. 42

Ramsden v Dyson 287 concomitant emergence of Huddersfield from immaturity and the custom of tenant-right. Secondly, equity’s principles and doctrines were put into play in form of advice from counsel and Jones’s legal opinions. The two strategies were connected, as the doctrines of equity were often placed within the framework of equity’s jurisdiction to do justice. The Earl of Oxford’s Case was the strategic bridge, as it was put into discourse for both its doctrinal and symbolic power. Equity was mobilised and put into the public imagination, thereby galvanising support for the TRDA’s actions, through a number of mediums. Most directly, it was put into play in the various aggregate meetings of the TRDA, where Jones would give his opinions on the matter and where the opinion of counsel would be heard. However, these meetings were ‘doubled’ through their subsequent reporting in the Chronicle, thereby not only reaching a wider audience but also having the effect of confirming what had been said for those who had been present. Jones’s letters to the Chronicle and subsequent pamphlets also contributed to the mobilisation of equity within the tenant-right struggle. But what was the utility of mobilising equity within that struggle? Why was ‘equity’ such a key feature in this discourse? Most obviously, the tenantright owners only had a claim in equity, it having been held that at common law they were only tenants-at-will. However, this is not an adequate explanation for the strength and quantity of the discourse on equity, especially as equity had been associated with tenant-right before the Swift case. Instead we can point to three qualities of equity that intersect with three objectives of its mobilisation. First, an affective quality: the rhetorical strategy has an emotional intensity, exciting the human passions and fostering hope in humanity. Secondly, an authoritative quality: the doctrinal strategy functions within a juridical model which has the power to silence that which opposes it, and consequently demands respect. Thirdly, a personal quality: equity is coupled to the figure of the Chancellor, which reinforces both the affective and authorial qualities. Each of these qualities of equity contributed to the various objectives of the TRDA: to galvanise the tenant-right owners; to resist Ramsden’s strategy of rights, powers and law; and to appeal to the Lord Chancellor.

F. THE TENANT-RIGHT SUIT

November 1861 heralded a marked shift in the tenant-right struggle. The headline in the Chronicle says it all: ‘The Tenant-Right Struggle. An Impending Crisis. Notice to Quit Served Upon Leaders of the Defence Movement’.46 The notices were taken as a declaration of war, and tenant-right

46

HC (9 November 1861).

288 Nick Piška holders were told they must take action to protect their property: there must be a ‘spirit of determined and indignant resistance’ to any confiscation. The editor warned of a ‘personal antagonism’ between Ramsden and his tenants, the ‘evil effects’ of which even the young would not see the end. In an accompanying letter, Jones stated that Ramsden had immortalised himself and would regret his indiscretion forever; if he won he would be hated, and if he lost he would be despised. Jones confidently predicted that ‘the Rules of Equity will provide “a greasy pole” down which he will be necessitated to effect an inglorious descent’. In April 1862 a sixth aggregate meeting was held, where it was communicated to the TRDA that seven bills had been filed in Chancery.47 In his opening speech, Jones drew attention to the character of Chancery: Some one has well said, ‘Thank God we have a House of Lords.’ As truly may we say, ‘Thank God we have a Court of Equity;’—(cheers)—a court which while it will allow the law of the land to do its work so long as law does not interfere with justice, but which, with mildest but irresistible sway, will interpose where innocence and weakness are borne down by that arbitrariness and that despotism which, I regret to say, is sometimes found endeavouring to take advantage of bare naked legality.

It was decided to proceed with one of the seven bills, that concerning Joseph Thornton, as it covered a number of different transactions. In 1837 Thornton, ‘a twenty-five year old partner in a cloth dressing firm, decided to build a “gentleman’s residence”’.48 He applied in the usual way, was let into possession and expended around £1,850 building ‘Edge House’. Brook and Thornton’s father visited the site shortly before completion, where a discussion took place regarding the granting of a lease. Brook stated it would be folly to take a lease, that Thornton would be equally safe without one and that he could get a lease whenever he wanted. On completion Thornton stayed in possession paying the agreed rent, and was entered on the rent-roll as ‘tenant-right’. In 1845 he applied for an additional piece of land adjoining the property. Hathorn agreed, but it was stated that it was held ‘at will’. Again Thornton entered possession and expended money on the land. Finally, in 1857 he borrowed money from the Commercial Money Club, of which Lee Dyson was president. They visited Longley Hall where Dyson was entered on the rent-roll as mortgagee. They also signed forms stating that the property was ‘tenant-at-will’, although neither read the forms and in all they were at Longley Hall for approximately five minutes.

47

HC (5 April 1862). G Minter and E Minter, Discovering Old Huddersfield (5 vols 1993–2002) vol 5, 54: available at (accessed 28 June 2011). 48

Ramsden v Dyson 289 The tenant-right holders’ claim was multilayered, encompassing questions of contract, property and compensation. First, they claimed that tenantright gave them a right to perpetual possession of the land, so long as they paid the rent. Secondly, that this encompassed the right to transfer and mortgage ‘tenant-right’. Thirdly, that if they so wished they could ask for a lease, and they were entitled to be granted a 60-year lease, renewable every 20 years forever. Fourthly, that they were entitled to compensation for the improvements made to the land, namely, the capital invested in building dwelling-houses. This compensation could be satisfied through the grant of a lease, specifically the 60-year renewable lease, or else a lien on the land coupled with an injunction preventing their being disturbed until fully compensated. However, Thornton’s Bill was limited to two forms of relief. In the first instance, a declaration that the claimant was entitled to a 60-year lease. Alternatively, a declaration that the claimant was entitled to a lien on the property for the value of the improvements, with an injunction protecting possession until compensation be paid. The tenant-right case came before Stuart V-C in February 1864, with Malins QC and Mr Fielding joining Daniel QC on behalf of the TRDA, and the Attorney-General (Roundell Palmer QC), Bacon QC and Mr Barber for the Ramsden Estate.49 Stuart V-C gave his decision in favour of Thornton on 25 May 1864.50 He stated that ‘[t]his Court has gone very far in many cases to protect the possession of a tenant who has in good faith expended money on land in a reasonable confidence that his possession would not be disturbed’.51 He continued that the land had been taken for the purpose of building, and that if a rent had been fixed but not a term of years, Chancery ‘never would presume that the landlord had a right to take the immediate possession and enjoyment of the building, without any compensation, as soon as the tenant had expended his money upon it’.52 Moreover, ‘there is sufficient evidence of an understanding or agreement that the possession of the tenant should not be disturbed’.53 Regarding the language of ‘tenantat-will’, Stuart V-C stated it was merely used to distinguish those tenants who had a lease from those who did not. This was not a case of specific performance and the Bill did not pray relief on that footing; rather, the case stood on ‘an equity much higher and more positive than the discretionary and ordinary equitable jurisdiction for specific performance’.54 Stuart V-C granted a lease in accordance with the 1844 Act, with rent being fixed in the usual manner. The possibility of compensation was not considered, on 49 For the Chronicle’s coverage of the proceedings, see HC (13 February 1864); HC (20 February 1864); HC (27 February 1864); HC (5 March 1864). 50 (1864) 4 Giff 519, 66 ER 812; The Times (26 May 1864). 51 (1864) 4 Giff 519, 571; 66 ER 812, 834. 52 Ibid. 53 Ibid. 54 (1864) 4 Giff 575, 66 ER 836.

290 Nick Piška the basis that both sides thought a lease most appropriate if relief were to be granted. Following Stuart V-C’s decision a series of angry letters were exchanged on the topic, with Ramsden blaming certain people for instigating unrest, particularly Crosland who used the Chronicle as his mouthpiece and had known activists (ie Hobson) in his pay, which provoked an editorial in The Times denouncing Ramsden for attempting to force 99-year leases on his tenantry on pain of eviction, even if 99-year leases were more suitable than the tenant-right system.55 In March 1865 Jones wrote to the Chronicle to bring to readers’ attention that an appeal was likely in the tenant-right case,56 and in May an eighth meeting of the tenant-right holders was held in which Jones summed up the Chancery decision in four words: ‘No disturbance without compensation.’57 The appeal was heard during June and July 1865, with Lord Westbury the Lord Chancellor.58 Although Thornton was stated to be the respondent as well as Dyson, in truth Thornton had been replaced by his assignees, having been declared bankrupt. Shortly after the hearing had ended, Westbury LC resigned as Lord Chancellor. Opinion of the Lords was not given until 11 May 1866, with Lord Cranworth now Lord Chancellor. The majority allowed Ramsden’s appeal.59 Cranworth LC stated that in order to succeed, Thornton had to prove both a belief that he had an absolute right to a lease and that Sir John knew of that mistaken belief; but that in relation to both the 1837 and 1845 transactions Thornton had failed to establish that he believed he had an absolute right beyond that of a tenant from year-to-year, or that Sir John knew that Thornton held such a belief. Regarding the evidence presented that persons taking land without a lease would never be disturbed, Cranworth LC interpreted this to mean only that tenants could rely on the honour of the Ramsden family, which would exclude the jurisdiction of the court of equity; it meant that Ramsden would not disturb their possession, not that he could not. Cranworth LC stated that this was consistent with Jones’s evidence that investment was made on the basis of tenant-right tenure due to the confidence reposed in the honour of the Ramsden family. Regarding the evidence that persons taking possession of land without a lease might have one if only they asked for one, this was also explained in terms of reliance on the honour of the Ramsden family and that any leases granted to tenant-right holders were not evidence of a contract or right but rather a matter of favour. Moreover,

55

See LM (30 May 1864); LM (31 May 1864); The Times (1 June 1864); LM (4 June 1864). HC (11 March 1865). 57 HC (27 May 1865). 58 For the Chronicle’s coverage of the proceedings, see HC (17 June 1865); HC (24 June 1865); HC (1 July 1865); HC (8 July 1865). 59 (1866) LR 1 HL 129. 56

Ramsden v Dyson 291 in relation to the 1845 transaction, Cranworth LC stated that ‘every precaution was taken to shew to persons who took land after the death of Sir John that they were mere tenants at will’,60 with tenants being required to sign an application which had the words ‘tenant at will’ printed in large conspicuous letters so as not to be overlooked. Both Cranworth LC and Lord Wenslydale were of the view that ‘tenant at will’ was used in its proper legal sense and that the tenants must be taken to have understood it in this sense. Amongst other things, both Cranworth LC and Lord Wenslydale also doubted whether Brook was an agent capable of binding Sir John, and whether a personal equity binding against Sir John could bind the Estate. Dissenting, Lord Kingsdown stated that whether relief would be given depended on the tenant’s understanding when entering possession, which depended on the evidence regarding the terms or agreement held out by Ramsden. While the majority had interpreted the evidence such that there were two classes of tenant entering possession, one who had agreed to take a lease and another who had not, Lord Kingsdown was of the view that on taking possession there was only one class of tenant, but that some subsequently took up the leases to which they were entitled. Regarding the references to ‘tenant-at-will’, he thought rather more emphasis had been placed on these words than they deserved, and that ‘tenant at will’ had a technical meaning in the context of Huddersfield equivalent to copyhold, that is, holding at the will of the lord and according to the custom of the manor. Moreover, he considered that the circumstances in which the 1857 terms were signed were such that he could ignore them. Shortly after the decision, the Law Journal published a leader stating, for a case involving so little law and, despite ‘a huge bulk of evidence’, ‘a really narrow compass of facts’, it was curious to consider how the majority and minority could ‘arrive at conclusions diametrically opposed’.61 How might we explain this difference in the interpretation of the facts? The leader also expressed concern that the decision encouraged landlords to allow tenants to rely on their honour with impunity to the landlords themselves; but why did the tenants think equity would protect their reliance on honour, and why did the majority reject those claims?

G. EQUITY AND THE POLITICS OF TENANT-RIGHT

The tenant-right question in Huddersfield connected with wider discourses on ‘tenant-right’ and English land reform in nineteenth-century Britain. ‘Tenant-right’ has an historical connection with the agrarian community,

60 61

Ibid, 160. Reprinted in HC (28 July 1866).

292 Nick Piška and Chancery would protect vulnerable tenant-right holders against the greater excesses of power of the landowners. However, the socio-economic developments of the nineteenth century, coupled with a reform movement strongly influenced by liberal political economy, militated against the continuance of local land customs and Chancery’s continuing protection of tenant-right holders. Tenant-right had already been an issue in the seventeenth and eighteenth centuries. In an article on Keech v Sandford62 Andrew Hicks argues that that case can be understood only with comprehension of the nature of ‘tenant-right’,63 which he explains referred to ‘the customary right to renew leases to maintain possession of the land over long periods and across generations’.64 That is, tenant-right was short for ‘tenant-right of renewal’. This right of renewal operated in the ecclesiastical context, where ‘there developed a settled practice of granting a renewal to the sitting tenant so long as the fines and rents were paid’.65 Strictly speaking, the tenant right of renewal was neither a legal nor an equitable right, but rather a right to expect a favour. This caused some concern; in the eighteenth century, for example, the Old Whig or The Consistent Protestant ran an article giving reasons why a law was necessary ‘to oblige spiritual persons and bodies politick to renew their leases for customary and reasonable fines’.66 However, tenant-right was not entirely unprotected. As Hicks says, the right of renewal (the tenant-right) was treated as ‘the traceable substitute of a trust asset’ which Chancery would protect, in Keech v Sandford apparently through the imposition of a constructive trust.67 However, this does not tell the whole story of ‘tenant-right’. In particular, tenant-right was both a form of landholding in itself, not just a right of renewal, and a system of compensation for tenants-at-will, aspects that would come to prominence in the nineteenth century in the context of agricultural tenancies and the Irish land question.

(1) Tenant-Right and Agricultural Tenancies Perhaps the context in which tenant-right is best known is agricultural law concerning the right of an outgoing tenant to compensation for unexhausted

62

Keech v Sandford (1726) Sel Cas Ch 61, 25 ER 223. A Hicks, ‘The Remedial Principle of Keech v Sandford Reconsidered’ (2010) 69 CLJ 287, 295–98. 64 Ibid, 295. 65 Ibid, 295. 66 31 March 1737. 67 Hicks (n 63) 296. 63

Ramsden v Dyson 293 improvements.68 Halsbury’s Laws of England defines ‘tenant-right’ as ‘the right of the tenant to take or receive after the determination of his tenancy the benefit of the labour and capital expended by him in cleaning, tilling and sowing the land during his tenancy’.69 This is now regulated by statute, but it originated as an agricultural custom, initially regulating the termination of agricultural leases between outgoing and incoming tenants, but later developed in the context of outgoing tenants and landlords. The main function of tenant-right was to allow a fair apportionment of returns from the land to an outgoing tenant, such as crops planted. Tenant-right in this context emerged from year-to-year tenancies which were the dominant model for agricultural landholding.70 Jones states that ‘the concept of tenant right was not merely a heady idea of land reform advocates or the mysterious consequences of ancient practice’; rather, ‘it had legal precedent and a solid base upon which to theoretically expand into more general usage’.71 That legal basis was the law of emblements:72 If a tenancy was unexpectedly ended owing to some totally unforeseen circumstance, during a period in which the occupier’s crops were growing, the tenant possessed the right to enter on the land and harvest the crops, irrespective of the termination of his tenancy.

Although tenant-right did not usually apply to permanent improvements, in Lincolnshire there was a custom of compensation for permanent improvements. In the course of the nineteenth century the discourse of ‘tenant-right’ in the agricultural context took on increasing importance. As Julian McQuiston has stated:73 ‘Of all the issues within the agricultural community that agitated the British farmer during the reign of Queen Victoria, tenant right proved to be the most durable and significant.’ But what was the issue, and why was it such a problem in the nineteenth century? According to McQuiston, the issue was that agricultural improvements required an increasingly considerable amount of capital investment, and tenant farmers did not feel that they had adequate security for their investments, investments which would be taken either by the incoming tenant or by the landlord.74 With the discovery of the Lincolnshire tenant-right custom, a discourse emerged claiming tenant-right to the compensation for 68 See JR McQuiston, ‘Tenant Right: Farmer against Landlord in Victorian England 1847– 1883’ (1973) 47(2) Agricultural History 95; AW Jones, ‘Glamorgan Custom and Tenant Right’ (1983) 31(1) The Agricultural History Review 1; JR Fisher, ‘Landowners and English Tenant Right, 1845–1852’ (1983) 31(1) The Agricultural History Review 15. 69 Halsbury’s Laws of England, vol 1, 5th edn, ‘Agricultural Land’ (2008), para 364. 70 Jones (n 68) 6. 71 Ibid, 7. 72 Ibid. 73 McQuiston (n 68) 95. 74 See, in particular, McQuiston (ibid) and Fisher (n 68).

294 Nick Piška capital improvements. However, ‘law’—apparently in thrall to the ideology of freedom of contract—was unwilling to recognise any right to compensation unless improvements were made in the context of an agreement.75 In the 1840s a tenant-right movement emerged,76 and in 1848 a Parliamentary Committee investigated the possibility of a general system of tenant-right, but no statutory intervention was made until the Agricultural Holdings (England) Act 1975.77 The problem, it seems, was not so much that landlords did not pay compensation, as an unwillingness to have that custom codified. As Fisher explains:78 Many landowners recognized the justice of [tenant-right] and, indeed, that it could prove economically beneficial to themselves. However, as a class they opposed statutory recognition of the principle because of the adverse implications for their predominant role in tenurial relationships.

This was not only a struggle between the tenantry and their landlords, but also a political and ideological struggle, which in turn led to the breakdown of ‘the customary bonds of deference and responsibility that had once united all who acknowledged the primacy of the land’.79 McQuinton concludes his account of the tenant-right movement by suggesting that the conflict was80 the outward sign of the social revolution implicit in that cause. Hammered by the twin blows of an ever-developing technology and a changing economy, the traditional structure of rural England and its accompanying conventions crumbled.

(2) Tenant-Right and the Irish Land Question Tenant-right was also a political question in what has come to be known as the Irish land question, at the time also known as ‘tenant-right in Ireland’.81 Just as McQuinton described the agricultural tenant-right question as one of the most important in the nineteenth century, Timothy Guinnane and

75 See A Densham, ‘Agricultural Tenancies: Past and Present’ in S Bright (ed), Landlord and Tenant Law: Past, Present and Future (Oxford, Hart Publishing, 2006) 111–14. 76 For an account of the tenant-right movement in this context, see McQuiston (n 68) and Fisher (n 68). There was massive newspaper, pamphlet, magazine and journal output on tenant-right in this context, especially in the agricultural and farming press, but also in the legal journals. Time and space prevent further discussion here. 77 For an account of the Act and subsequent reforms, see Densham (n 75) 114–27. 78 Fisher (n 68) 15. 79 McQuiston (n 68) 97. 80 Ibid, 112–13. 81 On the Irish land question generally, see ED Steele, Irish Land and British Politics: Tenant-Right and Nationality 1865–1870 (Cambridge, CUP, 1974). On tenant-right in Ulster, see MW Dowling, Tenant Right and Agrarian Society in Ulster 1600–1870 (Dublin, Irish Academic Press, 1999).

Ramsden v Dyson 295 Ronald Miller have stated that ‘tenant-right was perhaps the most famous and vexatious land-tenure institution in nineteenth-century Ireland’.82 At the heart of the Irish land question was the feeling of historic dispossession as a consequence of English colonialism, which not only imposed English rule but also entailed a shift in ownership, with the vast amount of Irish land held by English landowners or landowners siding with English rule. Irish tenant-right was concerned not only with improvements to land, although that was an important aspect of the discourse, but also with the tenant’s right to sell the right to occupy the land. The Irish peasantry, according to strict law, had no property rights in the land, as they were tenants-at-will or sometimes yearly tenants. However, as Steele explains, ‘[w]hatever the