covenanted with one another and not for their assigns; but the Defendant, having notice of the covenant, was held to be bound by it.

It was argued in Whatman v. Gibson (9 Šim. 196), and the Vice-Chancellor of England seems to have acquiesced in the view, that the covenant did not run with the land for the benefit of the parties then before him; for the lands had gone through several hands on both sides, and the Plaintiff and Defendant derived their title by assignment from different persons who were parties to the deed of covenant. The Vice-Chancellor of England, during the argument, seems to have inclined against the Plaintiff. He says, "Fleming" (the original owner) [68] "contained in himself both the future covenantors and the future covenantees. I do not see how a party can covenant with himself; besides, the Plaintiff never executed this deed. How, then, can he claim relief under it?" When he comes to give judgment the Vice-Chancellor says that the Defendant "admits, by his answer, that he does threaten and intend to use the house numbered 7 as a family hotel and tavern. There can be no doubt, therefore, that he has brought himself within the words of the covenant in the deed." He then observes, that "though neither the conveyance to Cull nor the conveyance to Austin (under which the parties severally claim) has been produced" (in that respect it resembled this case), "yet" he proceeds, "I must take it as a fact that those deeds recited that Cull and Austin had executed the deed of February 1799; and with respect to that deed, it seems to me that the matter is to be considered in this Court, not merely with reference to the form in which the covenants are expressed, but also with reference to what is contained in the preliminary part of the deed, namely, that Fleming had determined and proposed, and did thereby expressly declare, that it should be a general and indispensable condition of the sale of all or any part of the land intended to form the row that the several proprietors of such land, respectively, for the time being, should observe and abide by the several stipulations and regulations thereinafter contained or expressed in regard to the several houses to be erected thereon, and in all other particulars. Then follow the stipulations. . . . One of them is that none of the proprietors of any of the several lots or parcels of land intended to form the row shall, at any time or times, . . . on any of the several lots or parcels of land which shall be to them respectively belonging for the time being" use the trade or business of a tavern or ale-house keeper. Then he says, "It is quite clear that all parties who executed this deed were bound by it; and the only question is whether, there being an agreement, [69] all persons who come in as devisees or assignees under those who took with notice of the deed are not bound by it? I see no reason why such an agreement should not be binding in equity on the parties so coming in with notice. 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." Therefore, taking the deed between Jones and Shewell alone, these two parties, having clearly agreed with each other that the property should be laid out in a particular way, all those who come in under them are bound in equity by their covenants, if they had notice of them.

Mr. Elderton's objection remains. He says that Shewell himself could not come here for this relief, because he did not perform the agreement on his part. Shewell's agreement was that he would procure Morris to enter into certain covenants. I think, however, that this question has not been fairly raised in this case. No doubt there are no such covenants as were agreed upon in the conveyance to Morris; but the Defendants were bound to state, if they intended so to insist, that Jones never had in any other form such covenants as Shewell agreed to procure for him. It may at this moment be possible that, among other papers in the Defendants' possession, there may be a deed in which Morris has covenanted with Jones to the same effect as was stipulated in the agreement. I think, therefore, that the Defendants are not now entitled at the Bar to insist upon that objection, in order to prevent the parties who come in under Shewell having the relief to which Shewell himself would have been entitled, because the point has never been properly raised against them. The real difficulty which I have felt is as to the delay which has occurred. As to the words of the covenant, I have none. The delay is not by any means satisfactorily explained, [70] and if it were not for the peculiar course of conduct taken by the Defendants,

and the certainty that they were acting with the full knowledge that, from the first moment when the Plaintiff knew that the covenant was about to be infringed, he intended to assert his rights, and that they spent every farthing which they have laid out with that knowledge; and if it were not also for the fact that they had in their own possession the very measure of their rights, I should have said that the delay which has taken place would have prevented the Plaintiff from obtaining relief by this interlocutory proceeding; and if the Defendants had given an undertaking to abide by the order of the Court at the hearing I should not have done anything until that time.

His Honour recapitulated the circumstances which had occurred relative to the building, and the delay in suing, observing that the Plaintiff's delay was partly excused by the difficulty of obtaining information concerning the covenants, which the Defendants could have supplied but would not, and concluded by making an order granting an injunction, prefaced by a declaration to the following effect:

Order that the Defendants declining to abide by such order as the Court may make at the hearing of the cause, with reference to the removal of the building erected or to be erected in front of a line extending 33 feet 6 inches, running northwards from and in continuation of the front of the Plaintiff's house or any part of such building, be restrained from proceeding with or erecting any building in front of such line.

[71] BOYSE v. ROSSBOROUGH. Nov. 4, Dec. 5, 1853.

[S. C. affirmed, 3 De G. M. & G. 817; 43 E. R. 321; 6 H. L. C. 1; 10 E. R. 1192.] Establishing a Will against the Heir at the Suit of a Devisee of the Legal Estate. Origin of the Jurisdiction. Averment of the Defendant's Claim.

A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator's heir at law, although the heir has brought no action of ejectment against the devisee. Previously to the Statute of Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Bransby, 7 Bro. P. C. 437, A.D. 1727.

But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate was by a trial at law, the Court of Chancery reserving the power to deal with the case as justice might require.

The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir at law is so bound that a perpetual injunction would be granted against him if, after such decree, he should attempt to impeach the will.

The origin of this jurisdiction is obscure; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.

Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.

But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.

An averment in such a bill that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.

That the legal estate has been conveyed by the Plaintiff to his own trustee since the testator's death cannot give any equity to sustain such a bill.

This cause came on to be heard upon a general demurrer for want of equity. The material statements in the bill were as follows::

Cæsar Colclough died on the 23d of August 1842, leaving the Plaintiff, his widow, surviving him. At the time of his death he was seised of considerable real estate in Ireland, and he was also seised of a mansion-house, land and premises, called Boteler House, in the county of Gloucester, for an estate of inheritance in fee-simple, and he was possessed of personal estate to a considerable amount.

Cæsar Colclough, when he was of sound and disposing mind, memory and understanding, duly made and signed his last will and testament, dated the 6th of August 1842, and executed and attested as by law required; and he there-[72]-by gave and devised all and singular his real and personal estate to the Plaintiff, Jane Stratford Boyse, now the wife of Thomas Boyse, her heirs, executors, administrators and assigns, to and for her and their own absolute use and benefit, and appointed her executrix of his said will.

The testator did not revoke or alter his said will; and on the 12th of September 1842 the Plaintiff proved the same in the Prerogative Court of Canterbury, and she possessed herself of the testator's personal estate.

On the 6th of January 1846 the Plaintiff intermarried with her present husband, Thomas Boyse.

By the settlement made upon her marriage, which was dated the 6th of January 1846, and was duly made and executed between and by the Plaintiff of the first part; the said Thomas Boyse of the second part; and Thomas Thistlethwayte, since deceased, and the Defendants, Thomas Thistlethwayte the younger and Anthony Morris Storer, of the third part; the Plaintiff, with the consent of the said Thomas Boyse, conveyed to the said Thomas Thistlethwayte, Thomas Thistlethwayte the younger and Anthony Morris Storer, their heirs and assigns, the said mansion-house, land and premises, called Boteler House, with the appurtenances, to hold the same after the solemnisation of the Plaintiff's then intended marriage, to such uses and in such manner as the Plaintiff, by any deed or by her will, should, notwithstanding her coverture, appoint; and, in default of and subject to such appointment, to the use of the said Thomas Thistlethwayte, Thomas Thistlethwayte the younger and Anthony Morris Storer, their executors, administrators and assigns, during the joint lives of the Plaintiff and the said Thomas Boyse, upon trust to pay the rents and profits of the said premises to the Plaintiff for her separate use; and, at the death of the said Thomas Boyse, in case he should die before the Plaintiff, to the [73] use of the Plaintiff, her heirs and assigns, for ever; but if the Plaintiff should die in the lifetime of the said Thomas Boyse, then, after the death of the Plaintiff, to the use of the person or persons who, at her death, should answer the description of her heir or heirs at law, and the heirs and assigns of such person or persons.

The Defendant, Mary Grey Wentworth Rossborough, the wife of the Defendant, John Thomas Rossborough, was, before her marriage with him, called Mary Grey Wentworth Colclough. The Defendants, John Thomas Rossborough and Mary Grey Wentworth, his wife, allege that the said Mary Grey Wentworth Rossborough was, at the time of the death of the said Cæsar Colclough, the testator, and that she is now the heiress at law of the said Cæsar Colclough, the testator, and they make out such heirship in manner following:

The Defendants, John Thomas Rossborough and Mary Grey Wentworth, his wife, allege, as the fact is, that Cæsar Colclough, the testator, was the eldest son and only surviving issue of Vesey Colclough, commonly called Sir Vesey Colclough; and that the said Sir Vesey Colclough was the eldest son and only surviving issue of Vesey Colclough, the grandfather; and that the next eldest brother of Vesey Colclough, the grandfather, was Adam Colclough; and that the said Adam Colclough had a son named Cæsar Colclough, and called Cæsar Colclough, the barrister; and the said Defendants allege that Cæsar Colclough, the barrister, was married to Susannah Leach, and died in the year 1822, leaving two daughters, namely, Louisa Ponsonby Colclough, who died before the testator, Cæsar Colclough, unmarried; and the said Mary Grey

Wentworth Rossborough; and the said John Thomas Rossborough and Mary Grey Wentworth, his wife, allege that, at the death of Cæsar Colclough, the testator, the Defendant, Mary Grey Went-[74]-worth Rossborough was the heiress at law of the said Caesar Colclough, the barrister; and they allege, as the fact is, that the said Cæsar Colclough, the barrister, if then living, would have been the heir at law of the said Cæsar Colclough, the testator.

In the month of September 1849 the Defendants, John Thomas Rossborough and Mary Grey Wentworth, his wife, filed their bill in the Court of Chancery in Ireland against the Plaintiff and the said Thomas Boyse, thereby stating the will of the said Cæsar Colclough, the testator, and alleging that the said Mary Grey Wentworth Rossborough was the heiress at law of Cæsar Colclough, the testator; and stating and alleging various matters for the purpose of shewing that the said will had been obtained by means of improper and undue influence exercised by the Plaintiff over the said Cæsar Colclough, the testator; and charging that the said Cæsar Colclough, the testator, was not aware of the effect of the said will, and that he was not, at the time of making the same, of sound and disposing mind and understanding, and was not possessed of sufficient bodily health and firmness, of his own unbiassed judgment, and with clear intellect, to settle his worldly affairs; and charging that the said will was wholly void by reason of the mental incapacity and unsoundness of mind of Cæsar Colclough, the testator, and also by reason of the undue and improper influence and control exercised over him before and at the time of the execution of the said will; and charging that, the said Cæsar Colclough having died intestate, the said Mary Grey Wentworth Rossborough, as his heiress at law, and John Thomas Rossborough, as her husband, were entitled to the real estates of the said Cæsar Colclough; and praying that the said will of the 6th of August 1842 might be set aside and declared void, and delivered up to be cancelled; and that, if the Court should think fit, an issue might be directed to the county of [75] Wexford to try the validity of the said will, or that the said John Thomas Rossborough and Mary Grey Wentworth, his wife, might be at liberty to proceed at law by ejectment, for the recovery of the estates devised by the said will, and for further relief.

The Plaintiff and her husband put in their answer to the said bill, and witnesses were examined on both sides in the cause; and on the 31st of January 1852 an order was made in the cause directing that an issue should be tried before a jury of the county of Wexford whether the paper-writing, dated the 6th of August 1842, was or was not the last will and testament of the said Cæsar Colclough, the testator.

The issue was tried accordingly, and resulted in a verdict against the said will; the Plaintiff and her husband applied to the Court of Chancery in Ireland for a new trial of the said issue, on various grounds, which application was refused; and a decree was made in the said cause declaring the invalidity of the said will of the 6th of August 1842.

The statements and charges introduced into the said bill filed in the Court of Chancery in Ireland, for the purpose of shewing the invalidity of the said will, were and are untrue; and the Plaintiff is advised that the order of the same Court refusing a new trial of the said issue, and the decree of the same Court declaring the invalidity of the said will, were and are erroneous; and the Plaintiff has appealed from such order and decree to the House of Lords.

The bill then stated that the Plaintiff was in possession of the said mansion-house, land and premises, called Boteler House, or in receipt of the rents and profits there[76] of; and that she was also in possession of the personal property of Cæsar Colclough, the testator, bequeathed by his will; and that no attempt had been made. to impeach the said will, so far as related to the personal estate of the said testator. That the Defendants, John Thomas Rossborough and Mary Grey Wentworth, his wife, alleged that the said will of the 6th of August 1842 was invalid with regard to the mansion-house, land and premises of Boteler House aforesaid, which was the only real estate in England of which Cæsar Colclough, the testator, was seised; and that the said Defendants alleged that the said Cæsar Colclough, the testator, died intestate as to the said mansion-house, land and premises; and that the said Mary Grey Wentworth Rossborough was entitled to the same as his heiress at law, and that they claimed the same accordingly; but that they refused to take any proceedings in the V.-C. XIV.-2

Courts of this country for the purpose of determining the validity or invalidity of the said will, or of obtaining possession of the said mansion-house, land and premises; and that they desired and intended to delay such proceedings until the witnesses, by which the Plaintiff might establish the validity of the said will, many of whom were advanced in age, should have died or removed from the country, in order that the Plaintiff might be deprived of the benefit of such testimony.

The bill further stated that the Defendants, Thomas Thistlethwayte and Anthony Morris Storer, were the surviving trustees of the said indenture of settlement of the 6th of January 1846; and that they were unable, by reason of the claims made by the said John Thomas Rossborough and Mary Grey Wentworth, his wife, as aforesaid, to execute or act in the trusts of the said indenture of the 6th of January 1846; and that they required the said will of the said Cæsar Colclough to be established, and the title of the Plaintiff as his devisee to be confirmed.

[77] The bill contained the usual charge of the possession of material documents by the Defendants, Rossborough and wife; and it prayed that the said will of Cæsar Colclough, the testator, dated the 6th of August 1842, might be established; and that it might be declared that the mansion-house, land and premises, called Boteler House, passed under and were devised by the said will, and were subject to the said indenture of settlement of the 6th of January 1846: that, if the Court should think fit, an issue might be directed to try the validity of the said will: and that, for the purpose of such issue, and for the establishing of the said will, all proper and usual directions might be given.

To this bill Mary Grey Wentworth Rossborough and her husband demurred for want of equity.

Mr. J. Russell, Q.C., Mr. Younge and Mr. J. V. Prior, for the demurrer. This Court has no jurisdiction to establish a will against the heir at the suit of a mere legal devisee, who has no equitable title or interest in the property under the will. The legal devisee has no right to prevent the heir bringing ejectment, and to force him to take this particular mode of trying his right: Jones v. Jones (3 Mer. 161). The allegation that the Defendant is in possession and is taking the chance of the witnesses dying is only a foundation for a bill to perpetuate testimony. The bill contains no positive averment that the Defendant is heiress at law of the testator, but only that the Defendant so alleges, which is too vague. The question of the validity of the will is concluded by the proceedings in Ireland.

THE SOLICITOR-GENERAL, Mr. Rolt, Q.C., and Mr. Cairns, for the bill. For a long period the Court of Chancery allowed [78] bills of this kind to be filed against the heir, because of the peculiar practice at law, which permitted him to bring numerous successive actions of ejectment, notwithstanding previous verdicts against him, and afforded no means of trying the question once for all. In many of these suits, no doubt, there was some other element of equitable jurisdiction, but there are old precedents in which there was none. Lord Chancellor Cottenham, in Grove v. Bastard (2 Ph. 619), recognised distinctly the right of the Court to entertain a suit like the present; and the will in that case being objectionable, he required the legal devisees to file a bill to establish the will against the heir. [Mr. Rasch, amicus curia, informed the Court that the bill so filed was simply a bill by the legal devisees. The cestui que trusts were not parties to the bill; and it only prayed that the will might be established against the heir.] The suit instituted by Lord Cottenham's direction was contested before Vice-Chancellor Knight Bruce, who directed an issue; and it came on, upon further directions, before Vice-Chancellor Parker, on the 11th of November 1851, Grove v. Young (5 De G. & S. 38); and, on that day, His Honour made a decree, declaring the will of the testator in the cause well proved, "and that the same ought to be established and carried into execution," and ordered and declared the same accordingly. Reg. Lib. 1851, A. 103. Lord Eldon, in Bootle v. Blundell (19 Ves. 502), says that the effect of such suits upon the heir was that, if the will should be once established against him, he could never claim the devised property again; that is, that the foundation of such bills was the necessity of having the question decided once for all, and, therefore, it was not necessary to wait until there had been numerous actions of ejectment before instituting such a suit; but, in return for this advantage to the devisee, the Court of Chancery imposes upon him the obligation of