estate in strict settlement by giving only a bare estate for life with remainder to the issue in tail. There is this distinction also observed in a court of Equity in respect to the interests of volunteers claiming the benefit of a trust-" A declaration of trust," says Lord Langdale, 2 Keen. 134, "is considered in a court of equity as equivalent to a transfer of the legal interest in a court of law; and if the transaction by which the trust is created be complete, it will not be disturbed for want of consideration.—If the transaction rest upon an agreement not conferring the legal interest, if it be an executory contract, this court in the absence of consideration will not give effect to it." The courts of equity have in many instances abated the rigour of the old and favorite maxim, "Ignorantia juris non excusat," by holding that it was in regard to the public that ignorance cannot be pleaded in excuse of crimes, but does not hold in civil cases (r). And equity has in several instances relieved the party from the effects of a contract founded on a misapprehension of law; and lord Thurlow once said that money paid on a mistaken notion of law might be set right at any length of time (s). And it is now a settled rule that whenever one contracting party is ignorant of his rights, and that ignorance is taken advantage of by the other, equity will relieve (t). (r) Lansdowne v. Lansdowne, Mos. 364. (s) Jones v. Morgan, 1 Bro. C. C. 219. (t) Jarvis v. Duke, 1 Vern. 19. Gee v. Spencer, Ib. 32. Broderick v. Broderick, 4 vin. Ab. 534. 1 P. Wms. 239. Bowles 1 Sch. & Lef. 209. Murray v. Palmer, 2 Sch. & Lef. 474. Evans v. Llewellyn, 2 Bro. c. c. 150. East India Co. v. Donald, 9 Ves. 275. Clifton v. Cockburn, 3 My. & K. 76. CHAPTER II. ACCOUNT. ALTHOUGH a party filing his bill in a court of Equity in cases of an account, may be entitled to his remedy at common law, yet the advantages of proceeding in equity in almost all matters of this nature, have been so sensibly felt by a long and steady experience, that by degrees this court has obtained a concurrent jurisdiction with those of common law. It is said that the ground upon which equity first began to assume this power, was the difficulty of obtaining complete justice in the courts of common law, for although the action of account lies at common law, yet when the accounts are brought before the auditors of these courts there is so much difficulty and delay in settling them, especially if they be long and intricate, that recourse is now seldom had at law for that purpose; a court of Equity having the advantage by its mode of proceeding being peculiarly adapted for the task of investigating matters of account as between adverse parties, and compelling the payment of whatever balance is found due to the party entitled (a). The objection to a court of law for taking a long arithmetical account is pretty clearly laid down by Mr. Justice Taunton in Ferguson v. Sprang (3 New & Man 665), which was a question of usury where A, in consideration of £200 (a) Mitf. p. 120. 4th Edit. granted to B an annuity or rent charge for 60 years charged upon certain messuages. "It is difficult," says the learned judge, "for us to say by how much this reservation of £20 a year for 60 years will exceed the principal and interest at 5 per cent. We cannot compute it. It is too difficult a question for the court to take judicial notice of. If this were a question, whether ten were more than five, or that two and two made four, the court would take judicial notice of it. Here the question depends upon a difficult calculation, and ought therefore to be inquired into by a jury." This case coming before the K. B. on a demurrer, L. C. Justice Denman, in reference to Fennday v. Wrightwick, 1 Rus. & My. 45 and the power of a court of Chancery in taking matters of account, said, "that was of no authority, as the Master of the Rolls might have acted there in the capacity of a court and of a jury also;" "which," said his honor the V. C. in Chillingworth v. Chillingworth 8 Sim. 413,"contains the pith of the case, namely, that the Master of the Rolls sat as jury as well as a judge, as I do." A right to account being founded upon the same principle whether at law or in equity, it follows that whenever a party cannot recover at law, he is generally remediless in a court of Equity (b). A bill for an account may sometimes be filed between a tradesman and his customer, especially where securities have been obtained from an extravagant or inexperienced young man by means of misrepresentation (c), and in a MS., 14th December, 1791, in the court of exchequer (d), Lord Chief Justice Eyre expressed an opinion that dealings between a tradesman and his customer are the subject of account in a (b) 13 Ves. 278. (c) Lord Courtenay v. Godschall, 9 Ves. 473. (d) Wellings v. Cooper. court of Equity, not however if their dealings have been confined to a single payment, but where there had been a series of demands on one side, and payments on the other. A court of Equity will not entertain a suit if the subject be capable of proof and a matter of set-off at law-because in general, where the party may have his remedy in a court of law, equity will not interfere. Thus, where as between landlord and tenant the accounts are too varied and complicated to be taken at law, the tenant may file his bill for that purpose; yet, if the tenant's counter demand amount to a legal set-off, he will have no relief in equity (e). A bill for an account will also lie against a factor or his representatives on behalf of his principal, unless the factor be an infant (. An heir, for the purpose of filing a bill in equity for an account, must aver upon the record that there exists an impediment to his recovering at law, and this averment must be capable of proof, as that the defendant has in his possession the title deeds necessary to maintain his title, or alleging that there are outstanding terms which prevent his recovering at law, or any other obstacles which may prevent it; equity then directs the heir to bring an ejectment providing that the defendant shall not set up at law any term, whether satisfied or not (g). These impediments being put out of the way, a trial is had before the proper tribunal: the parties then come back to the court of Equity for the account, the title deeds, papers, &c. This process is called an equitable ejectment, and the bill an equitable bill. This method of proceeding is generally preferred to that of directing issues, the granting of which is discretionary with the court (h). (e) Townrow v. Benson, 3 Madd. Rep. 203. (f) Smalley v. Smalley, 1 Eq. Abr. 6. (g) Pemberton v. Pemberton, 13 Ves. 297. 4 Ves. 66. We have before observed, in respect of the right to account, that where a party cannot recover at law he is without remedy at equity: the same principle holds in like manner where an account is directed to be taken of rents and profits of estates; for as upon a legal title six years only of mesne profits are recoverable at law, so where a trust estate is recoverable in equity, the account of rents and profits is not allowed to extend beyond six years (i), unless in the case of an infant, where an account will be ordered from the time the infant's title accrued; for every person entering on the estate of an infant is considered as his guardian or bailiff (j). An exception is also made where the plaintiff has been kept out of possession by unfair means on the defendant's part, such as misrepresentation, concealment, or fraud (k). An account of partership transactions is also a matter for the jurisdiction of a court of Equity, and it seems not necessary now that the bill should for that purpose pray a dissolution of partnership (1), although formerly held otherwise. It is much to be regretted that the law upon this subject should have so fluctuated with the conflicting opinions of the several judges who have been called upon to adjudicate a point of so much importance to the commercial world; for since the decision of Harrison v. Armitage, referred to in the margin, the case of Loscombe v. Russell (m) came before the court, in which a bill was filed by one partner against his copartners, to have the accounts of the partnership taken without praying a dissolution-to this bill the defendants (i) Stackhouse v. Barnston, 10 Ves. 469. (1) arrison v. Armitage, 4 Madd. Rep. 143. (m) 4 Sim. 8. |