The jurisdiction in these cases was founded on the Grounds for principle of equity that it was better to prevent than delivering up. to relieve. If an instrument was of such turpitude that it ought not to be used or enforced, it was against conscience for the party holding it to retain it, since he could only retain it for some sinister purpose. If it was a negotiable instrument, it might also have been. used for a fraudulent or improper purpose to the injury of some one or other. If it was a deed purporting to convey lands or other hereditaments, its existence in an uncancelled state necessarily had a tendency to throw a cloud over the title. If it was a mere written agreement, solemn or otherwise, while it existed it was always liable to be applied to improper purposes, and it might be vexatiously litigated at a distance of time, when the proper evidence to repel the claim might have been lost or obscured (0). delivered up, But where the illegality of the agreement, deed, or (b.) When not other instrument appeared upon the face of it, so that and upon what its nullity could admit of no doubt, and its capacity grounds. therefore to be made the means of perpetrating some further wrong was wholly paralysed, there was not the same reason for the interference of a court of equity, to direct it to be cancelled or delivered up. In such a case there could be no danger that the lapse of time would deprive the party of his full means of defence; nor could such a paper throw a cloud over any right or title, or diminish any one's security, or be used as a means of vexatious litigation, or other and sensible injury. And, accordingly, it was fully established that in such cases courts of equity would not interpose their authority to order a delivery up of void instruments (p). (0) St. 700; Bromley v. Holland, 7 Ves. 20, 21; Kemp v. Prior, 7 Ves. 248, 249. (p) Simpson v. Lord Howden, 3 Mylne & Cr. 97; Bromley v. Holland, 7 Ves. 16; Threlfall v. Lunt, 7 Sim. 627; Hurd v. Billington, 6 Gr. 145; St. 700 a. Judicature The jurisdiction of courts of equity on this subject was analogous to the jurisdiction, quia timet, already explained (g). The Judicature Acts, 1873-75, as we have seen, Acts, effect of. have not in any material respect altered the jurisdiction in equity as regards actions in the nature of bills quia timet; and we have to ask ourselves here, whether these same Acts have in any material respect altered the jurisdiction in equity as regards the cancellation of voidable and the delivery up of void instruments. Firstly, every ground of defence and every variety of relief and of protection and prevention being equally available in and equally procurable from all the divisions of the High Court of Justice, as well the Common Law as the Chancery Divisions, it is clear that the jurisdiction in equity in such matters, so far as it survives, is no longer auxiliary, but is strictly speaking concurrent, although (for reasons of convenience) it is by the Judicature Act, 1873 (r), assigned to the Chancery Division as portion of its exclusive jurisdiction. Then, secondly, any jurisdiction which equity derived from the fact that certain defences on equitable grounds might not be available in an action at law on the instrument, all that jurisdiction must be considered to have ceased with the reason of it ceasing; and we have seen, that the reason of it has in fact now ceased. Then what portion of the jurisdiction remains? It seems, only that portion of the jurisdiction now remains which was founded upon the consideration of future perils or wrongs being done to some one or other through the non-cancellation or non-delivery up of the void or voidable instrument, not being perils or wrongs resulting or possibly resulting from the former imperfect condition of the law, but being perils or wrongs un (q) Part iv., chap. iii., supra. See also Peake v. Highfield, 1 Russ. 559; St. 701. (r) § 34, sub-sect. 3. connected with judicial proceedings, and which may therefore be designated perils or wrongs in pais. It appears, therefore, that the High Court of Justice in its Chancery Division will now entertain jurisdiction for the cancellation of voidable and for the delivery up of void instruments, in all those cases (and apparently in those cases only) in which there would be the circumstances necessary to support an action in the nature of a bill quia timet as above explained. Court of Probate. Equity deals with wills in cidentally. CHAPTER V. BILLS TO ESTABLISH WILLS. ALTHOUGH courts of equity had no general jurisdiction over wills, the proper court having been as regards personalty the Ecclesiastical Court, and latterly the Court of Probate its successor (a), and as regards realty the Court of Common Pleas or of the Queen's Bench, and latterly (upon citation of the heir and devisee) the Court of Probate (b), yet whenever a will came incidentally into question before courts of equity, as when these courts were called upon to execute the trusts of the will, they necessarily acquired some jurisdiction regarding wills (c). In such a case, if the validity of the will was admitted, or already established elsewhere, the courts of equity acted upon it to the fullest extent; but if the parties contested the validity of the will and the same had not been established elsewhere, the court of equity in which the cause was depending would have caused the validity of the will to be established, and for that purpose would either have directed an issue or issues to be tried at the assizes, and upon the finding, or ultimate finding, would have declared the will established, or would itself have tried the question and established the will on its own finding, which latter course was called proving the will in Chancery per testes (d); and if the will were once established, a per (b) Ibid. (a) 20 & 21 Vict., c. 77, ss. 61, 62. petual injunction would have been decreed against the heir (e). come into establish a But further, it was often the principal object of a Devisee may suit in equity, as when brought by devisees, to establish equity to the validity of the will being a will of real estate, and, will against to obtain thereupon a perpetual injunction against the heir-at-law. heir-at-law, to prevent him from contesting its validity in future (f). In such cases the jurisdiction exercised by courts of equity was analogous to that exercised in cases of bills quia timet, and was founded upon the like considerations, in order to give security and repose to titles, while the evidence for them was abundant (g). And their jurisdiction was assumed because the devisee had no power to actively litigate the validity of the will at law, but was obliged to wait until the heir at law commenced an ejectment at law, which action the heir might indeed commence at once, but might also put off until the evidence in support of the will was grown obscure. the heir-at-law Accordingly, in the case of Boyse v. Rossborough (h), Even though it was decided that a devisee in possession was entitled has brought to have the will established against the heir-at-law of no ejectment. the testator, although the heir had brought no action of ejectment against the devisee, although no trusts were declared by the will, and although it was not necessary to administer the estate under the direction of the Court of Chancery. And it was further deter- Devisee may mined, that the Court of Chancery had power to estab- will against lish a will against parties claiming under a prior will, an adverse and disputing the plaintiff's claim, a devisee being establish a all setting up right. (e) St. 1445-47. (g) St. 1447. (f) Bootle v. Blundell, 19 Ves. 494, 509. (h) Kay, 71; 1 K. & J. 124; 3 De G. M. & G. 817; 6 H. L. Cas. I. |