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The second, which is, in truth, an inevitable consequence of the first, consists in the practice of com RUMOURS are current that changes of immense ex-pelling the party charged with a wrong, or a liability, tent and importance are contemplated with reference to proceedings in Chancery; changes involving an entire revolution in the system of the Masters' offices, and a translation to those offices from the superior courts, of the entire department of administratory suits. The system adopted in proceedings in Chancery is admirable, taken with reference to the subjects for which it was originally destined. But, in the course of time, the jurisdiction of Chancery has, from the extent and flexibility of its powers, and the absence of any other jurisdiction possessing sufficient attributes, been extended to subjects for which it was not originally destined, and for which many of the peculiarities of its procedure are totally unnecessary. At the same time, the class of interests, in reference to which the jurisdiction of Chancery is the only one that the institutions of this country provide for the administration of justice, has become so extended, that a large portion of the business of Chancery now consists of suits of a character requiring, it is true, to be dealt with according to the principles of equity, but not requiring at all the peculiar machinery of equity procedure. And of subjects for suits of this class, an infinite number is left without the protection of any judicial adjudication, because equity, the only jurisdiction at all adapted to deal with them, is inaccessible by reason of its peculiar procedure. The principal peculiarities of equity are two, one of principle, the other of procedure. The first consists, speaking, of course, in a very general manner, in this: that equity does not confine itself to the consideration of the absolute legal rights of parties, but treats those rights as held for, or controlled by, the liabilities which, in conscience, the parties have intended mutually to VOL. X. G to lay open the recesses of his conscience, and divulge all that he knows, or believes, or thinks, in relation to the subject-matter of inquiry. To meet the exigences of these two features of equity jurisdiction, all the machinery of Chancery proceedings has been calculated, and is thoroughly well adapted: not only is it well adapted for the purpose, but, perhaps, it may be said, that no very different system could be found at all practically effective, and, at the same time, bearable, consistently with the ideas and habits of men living under a free government. But when the same system, with all its guards, and checks, and delays, intended to soften and make tolerable the pressure of its inquisitorial character, comes to be applied to cases where there is no fraud, or suspicion of fraud,-no concealment, or thought of concealment,-no necessity for any exercise of inquisitorial powers on the one hand, or of protective. delays on the other;-when, in such cases, the long bill, with its charges and inevitable interrogatories, and the minute answer, with its equally inevitable statements and traverses, almost unavoidably repeating each other under the fear of a possible exception, form the foundation of a suit; and the formal state of facts, and affidavits, and written reports, together with long written petitions to the court upon every trifling matter, and references to the Master to inform the court what it ought to do, form the bulky sequel; then it is impossible not to see that a most unnecessarily cumbrous and tedious mode of proceeding is applied to objects, for which it was never intended, and for which it is ill adapted. Where parties differ about the existence or terms of a contract; where persons filling, or believed to fill, fiduciary character, assert their absolute title, and refuse H PERFORMANCE OF AN AGREEMENT. A very recent decision (Rolfe v. Rolfe, ante, p. 61) appears to establish an important distinction in reference to the doctrine of those cases, in which it has been held, that equity will not decree an agreement to be specifically performed, unless it can execute the whole of the agreement, and that, when it cannot execute the whole agreement, it will not restrain by injunction breach of a negative covenant calculated to protect the positive branch of the agreement. (Kemble v. Kean, 6 Sim. 333; Kimberley v. Jennings, Id. 340; Hills v. Croll, 9Jur.645). The qualification engrafted by Rolfe v. Rolfe, upon the distinction shewn by that case to be not inconsistent with doctrine of these cases, or, to speak more accurately, the entire agreement, but the quasi agreement, constituted by the covenant not to do some particular thing, can be considered as a distinct and separate agreement, and if the bill does not pray specific performance of the compound agreement, but only an injunction to restrain the breach of the negative covenant, then equity may interfere by injunction to enforce that distinct part of the agreement which is protected by a covenant to abstain from doing certain things, although it may see that it has no power to enforce the specific performance of the other part of the agreement, consisting of a positive agreement to do something. to give information which can only be obtained from THE DOCTRINE OF EQUITY AS TO PARTIAL themselves; where transactions have taken place between men, in which fraud is imputed by the one and denied by the other party;-in these, and the great variety of other instances in which not only are parties hostile to each other, but much that affects the transaction must remain undiscovered, unless the party charged can be put to discharge his conscience by answering a keen inquiry; it is intelligible that a minute string of allegations, followed by an equally minute and inquisitorial string of interrogatories should be necessary; and that all the consequential arrangements of well-considered written evidence, and inquiries addressed to the Masters, and guards against surprise, by the interposition of the court, and the advice and advocacy of coun-them, is this: that, if the agreement is not strictly one sel at every step, should be not only beneficial, but indispensable, to prevent oppression. But it is not so intelligible how, in a suit in which nothing is required, for instance, but to ascertain who are the persons constituting a particular class described by a testator, or who are the testator's next of kin, and then the decision of the court upon the construction of the will-any useful purpose is answered by a bill, with all the parts of a hostile bill; and several answers; and a hearing, to do nothing but direct the Master to make inquiries; and then inquiries conducted with all the forms of hostile proceedings; and, lastly, a hearing on further directions; the result of the whole being an amount of delay and expense, which effectually prevent the jurisdiction being of any use whatever, where the property in question is not, at the very least, of 5007. in value. Suits of this class, and of the purely administratory class, are, it is said, to be entirely withdrawn from the active interference of the court, and are to be wholly disposed of, under a simple order of reference, by the Masters of the Court of Chancery, whose courts are, for that purpose, to be greatly altered in constitution, and to be open to the public. The proposed plans will, doubtless, before long, be brought in detail before Parliament, and till then we shall content ourselves with this brief notice to our equity readers, of the revolutions that they may expect. It cannot be doubted, that alterations in the practice in equity in this direction, ifment, and an injunction in the meantime; so that it made with even moderate prudence, will be very beneficial to the public; and, while we doubt as little that the great body of the Profession would be ready, for such an object, to make sacrifices, if need be, we do not, at the same time, see any reason to anticipate that a change, simplifying and reducing the expense of proceedings in administratory and amicable suits, would produce any permanently injurious effect upon the status of the Profession. In Kimberley v. Jennings (6 Sim. 340) there were certain stipulations, intended to be of a positive character, but too vaguely expressed to be capable of being specifically executed; and a certain other stipulation in the nature of a covenant not to do particular acts. The court was of opinion, that the two agreements were fore, although the bill did not in that case pray specific blended and dependant upon each other; and, thereperformance, but only, as in Rolfe v. Rolfe, an injunc tion to restrain a breach of the covenant, it was held, that such a bill could not be sustained, because, among other reasons, it was not such an agreement as the court could perform in the whole, and, therefore, it could not perform any part of it. In Kemble v. Kean (6 Sim. 333) the court also appears to have considered the negative provision of the compound agreement, as inseparable from, and a mere auxiliary to, the positive provision. In that case the bill prayed specific performance of the whole agreeis, on both points, distinguishable from Rolfe v. Rolfe. In the very recent case of Hills v. Croll (9 Jur. 645) the terms of the agreement were expressed in a rather complicated way; but, in substance, it came to this: that Hills agreed to supply Croll with acids, and Croll agreed to purchase from Hills and from no other person. The bill prayed a specific performance of the agreement, and an injunction in the meantime to restrain Croll from purchasing acids from any one but the plaintiff. Lord Lyndhurst said, the court had no power to compel Hills to manufacture acids; and, therefore, as the agreement could not in its entirety be performed, the court would not compel a specific performance by injunction of any part. Nothing fell from the Lord Chancellor, in Hills v. Croll, to shew that he considered the two branches of the agreement inseparable, or that he attached any imnot separate. And it may be thought, that, in fact, portance to the question, whether they were or were the two branches of the agreement were as separable as were those of the agreement in Rolfe v. Rolfe; for an agreement between A. and B., that A. shall purchase certain things of B., unless it involves in itself an agreement that B. shall sell them to A., (Pordage v. Cole, 1 Saund. 319 h), does not seem at all necessarily de pendant upon any further covenant in the instrument, that B. shall sell to A. It might be the intention of the agreement that A. should undertake, by a distinct covenant, to purchase of B., if he purchased at all, whether B. was bound to sell, or not. However, this question does not seem to have been in any way presented to, or considered by, the court, in Hills v. Croll. But the bill prayed specific performance of the whole agreement, and in that it differs from Rolfe v. Rolfe. In Hooper v. Brodrick, (11 Sim. 47), which was cited in Rolfe v. Rolfe, the point did not arise. That was not a case in which there was a positive covenant to do something, protected by a negative covenant that the covenantor should not do acts inconsistent with the performance of the positive agreement; but a case in which there was merely a positive covenant by the assignee of premises used as an inn, that he would use and keep open the premises as an inn. There was, it is true, a negative covenant, that he should not do any act whereby a license might be forfeited or refused; but that, it is obvious, was not a covenant intended to enforce the actual performance of the covenant to use the house as an inn, but only to enforce his taking care that it should not become impossible for him to use the house according to the covenant; and that was the point upon which the judgment turned. The court held, that it could not enjoin the defendant from not keeping the house open as an inn, which would have been ordering him to keep it open as an inn; but held, that it could restrain him from doing acts which would make it impossible for him to perform his positive co venant. It certainly is difficult to avoid the impression, that, in Rolfe v. Rolfe, the court was struggling to find some distinction, to enable it to escape from the doctrine of the preceding cases. For the agreement by the plaintiffs to employ the defendant as a cutter, which was treated by the court as a separate agreement, was expressed to be in pursuance and further performance of the said agreement, and in consideration of the premises; and, on looking back to the commencement of the instrument, we find that the agreement was, that, in consideration of certain pecuniary equivalents, the plaintiff's father and his brother were to assign their shares in the partnership business to the plaintiff; and the covenant by the defendant not to carry on trade on his own account, was in consideration of the premises, as well as the subsequent agreement by the plaintiff to employ him. It may be contended, therefore, that all the three stipulations, viz. the stipulation for a pecuniary pay ment, the stipulation that the defendant should not carry on business on his own account, and the stipulation that he should be employed, formed together one consideration of one agreement. The principle of the decision is, however, unaffected by the question, whether the agreements were or not, in fact, distinct; the court having decided the case upon the assumption that they were so, and holding, that, where the two branches of an apparently single agreement are, in substance, distinct, and the bill does not pray specific performance of the whole agreement, but only an injunction to restrain the breach of the negative agreement, the court has jurisdiction to grant such an injunction, notwithstanding the doctrine of Kimberley v. Jennings, Kean v. Kemble, and Hills v. Croll. The necessary precaution to be kept in view in framing agreements of this sort will, therefore, in future, be to keep the two branches of the agreement, if two branches there must be, as independent as possible; and the struggle, in taking existing cases out of the inconvenient, and, as we humbly venture to think, most inequitable, doctrine of Kemble v. Kean and Kimberley v. Jennings, will be to shew that the intention was not to make the negative covenant protect the positive one, which would be to connect them; but that the positive one was meant to enforce some act, and the negative one to prevent the doing of certain other acts, inconsistent (of their own merits, and quite irrespectively of the doing or not doing of the first act) with the views of the parties. It will, we apprehend, be more frequently found practicable to use the precaution with reference to future instruments, than to succeed in the argument with reference to existing ones. ON DESCENT AMONGST COPARCENERS. The attention of the writer of these remarks has been very recently drawn to a point in the law of descent amongst coparceners, on which, in his opinion, an erroneous doctrine has been propagated. The point in question is as follows:-Suppose a man to be the purchaser of freehold land, and to die seised of it intestate, leaving two daughters, (say Susanna and Catherine), but no sons. It is clear that the land will then descend to the two daughters, Susanna and Catherine, in equal shares as coparceners. Let us now suppose that the daughter Catherine dies intestate and without having disposed of her moiety in her lifetime, leaving issue one son. Under these circumstances, (supposing the decease of Catherine to have taken place on or after the 1st January, 1834), the question arises, to whom shall the inheritance descend? The act to amend the law of inheritance enacts, "that in every case descent shall be traced from the purchaser." In this case Catherine is clearly not the purchaser, but her father; and the descent of Catherine's moiety is accordingly to be traced from him. Who, then, as to this moiety, is his heir? Supposing that, instead of the moiety in question, some other land were, after Catherine's decease, to be given to the heir of her father, such heir would clearly be Susanna, the surviving daughter, as to one moiety of the land, and the son of Catherine as to the other moiety. It has been argued, then, that the moiety which belonged to Catherine, by descent from her father, must, on her decease, descend to the heir of her father, in the same manner as other land would have done had she been dead in her father's lifetime; that is to say, that one moiety of Catherine's moiety will descend to her surviving sister Susanna, and the other moiety of Catherine's moiety will descend to her son. This view of the case appears to have been first promulgated by a writer in the Law Magazine, in a review of the last edition of Sir Edward Sugden's Vendors and Purchasers, (23 Law Mag. 279). It was afterwards sanctioned by Mr. Hayes, who states the same doctrine in the last edition of his valuable introduction to conveyancing, (1 Hayes's Conv. 314). It appears again in Mr. Sweet's edition of Messrs. Jarman and Bythewood's Conveyancing, (vol. 1, p. 139), where an argument of considerable length will be found in support of it; and it has been subsequently adopted by Mr. Joshua Williams in his Principles of the Law of Real Property, p. 80. With deference to those gentlemen, the writer contends, that, on the decease of Catherine, her moiety will not descend equally between her surviving sister and her own son, but will descend entirely to her son. In order to arrive at our conclusion, it will be necessary to inquire, first, into the course of descent of an estate tail, under the circumstances above described, according to the old law; secondly, into the course of descent of an estate in fee simple, according to the old law, supposing the circumstances as above described, with this qualification, that neither Susanna nor Catherine shall be considered to have obtained any actual seisin of the lands. And, when these two points shall have been satisfactorily ascertained, we shall then be in a better position to place a correct interpretation on the act by which the old law of inheritance has been endeavoured to be amended. First, then, as to the course of descent of an estate tail according to the old law. Let us suppose lands to have been given to the purchaser and the heirs of his body. On his decease his two daughters, Susanna and Catherine, are clearly the heirs of his body, and as such will accordingly have become tenants in tail each of a moiety. Now, there is no proposition more frequently asserted in the old books than this: that the descent of an estate tail is per formam doni to the heirs of the body of the donee. On the decease of one heir of the body, the estate descends not to the heir of such heir, but to the heir of the body of the original donee per fornam doni. Suppose, then, that Catherine should die, her moiety would clearly have descended, by the old law, to the heir of the body of her father, the original donee in tail. Whom, then, under the above circumstances, did the law consider to be the heir of his body quoad this moiety? The Tenures of Littleton, as explained by Lord Coke's Commentary, supply us with an answer. Littleton says," Also, if lands or tenements be given to a man in tail who hath as much land in fee simple, and hath issue two daughters, and die, and his two daughters make partition between them, so as the land in fee simple is allotted to the younger daughter, in allowance for the lands and tenements in tail allotted to the elder daughter; if, after such partition made, the younger daughter alieneth her land in fee simple to another in fee, and hath issue a son or daughter, and dies, the issue may enter into the lands in tail, and hold and occupy them in purparty with her aunt." (Litt., sect. 260). On this case Lord Coke makes the following comment:-" The eldest coparcener hath, by the partition, and the matter subsequent, barred herself of her right in the fee-simple lands, insomuch as when the youngest sister alieneth the fee-simple lands and dieth, and her issue entereth into half the lands entailed, yet shall not the eldest sister enter into half of the lands in fee simple upon the alienee." (Co. Litt. 172. b.) It is evident, therefore, that Lord Coke, though well acquainted with the rule that an estate tail should descend per formam doni, yet never for a moment supposed, that, on the decease of the younger daughter, her moiety would descend half to her sister, and half to her issue; for he presumes, of course, that the issue would enter into half the lands entailed, that is, into the whole of the moiety of the lands which had originally belonged to their mother. After the decease of the younger sister, the heirs of the body of her father were no doubt the elder sister and the issue of the younger; but, as to the moiety which had belonged to the younger sister, this, as clearly, was not the case: the heir of the body of the father to inherit this moiety was exclusively the issue of such younger daughter, who were entitled to the whole of it in the place of their parent. This incidental allusion of Lord Coke is as strong, if not stronger, than a direct assertion by him of the doctrine; for it seems to shew that a doubt on the subject never entered into his mind. At the end of the section of Littleton to which we have referred, it is stated that the contrary is holden M., 10 Hen. 6, scil., that the heir may not enter upon the parcener who hath the entailed land, but is put to a formedon. On this Lord Coke remarks, (Co. Litt. 173. a.), that it is no part of Littleton, and is contrary to law, and that the case is not truly vouched, for it is not in 10 Hen. 6, but in 20 Hen. 6, and yet there is but the opinion of Newton, obiter, by the way. On referring to the case in the Year Books, it appears that Yelverton contended, that, if the sister who had the fee simple aliened, and had issue, and died, the issue would be barred from the land entailed by the partition, which would be a mischief. To this Newton replied, "No sir; but he shall have formedon, and shall recover the half." (Year Book, 20 Hen. 6, 14 a). Newton, therefore, though wrong in supposing that a formedon was necessary, thought, equally with Lord Coke, that a moiety of the land was the share to be recovered. This appears to be the Newton whom Littleton calls (sect. 729) "my master Sir Richard Newton, late Chief Justice of the Common Pleas." There is another section in Littleton, which, though not conclusive, yet strongly tends in the same direction; namely, section 255, where it is said, that, if the tenements whereof two parceners make partition "be to them in fee tail, and the part of the one is better in yearly value than the part of the other, albeit they be concluded during their lives to defeat the partition, yet, if the parcener who hath the lesser part in value hath issue and die, the issue may disagree to the partition, and enter and occupy in common the other part which was allotted to her aunt, and so the other may enter and occupy in common the other part allotted to her sister, &c., as if no partition had been made." Had the law been, that, on the decease of one sister, her issue were entitled only to an undivided fourth part, it seems strange that Littleton should not have stated that they might enter into a fourth only, and that the other sister might occupy the remaining three-fourths. In addition to these authorities, there is a modern case, which, when attentively considered, is a clear authority on the same side; namely, Doe d. Gregory and Geere v. Whichelo, (8 T. R. 211). This case, so far as it relates to the point in question, was as follows: Richard Lemmon was tenant in tail of certain premises, and died, leaving issue by his first wife one son, Richard, and a daughter, Martha, and, by his second wife, three daughters, Anne, Elizabeth, and Grace. Richard Lemmon the son, as heir of the body of his father, was clearly tenant in tail of the whole premises during his life. He died, however, without issue, leaving his sister Martha of the whole blood, and his three sisters of the half blood, him surviving. Martha then intermarried with John Whichelo, and afterwards died, leaving John Whichelo the defendant her eldest son and heir of her body. John Whichelo the defendant then entered into the whole of the premises, under the impression, that, as he was heir to Richard Lemmon the son, he was entitled to the whole. In this, however, he was clearly mistaken; for the descent of an estate tail is, as we have said, traced from the purchaser, or first donee in tail, per formam doni. The heirs of the purchaser, Richard Lemmon the father, were clearly his four daughters, or their issue; for the daughters by the second wife, though of the half blood to their brother by the former wife, were, equally with their half-sister Martha, of the whole blood to their common father. The only question then is, in what shares the daughters or their issue became entitled. At the time of the ejectment all the daughters were dead. Elizabeth was dead without issue, whereupon her one equal fourth part devolved, without dispute, on her three sisters, Martha, Anne, and Grace: each of these, therefore, became entitled to one equal third part. Martha, as we have seen, died, leaving John Whichelo the defendant her eldest son and heir of her body. Anne died, leaving James Gregory, one of the lessors of the plaintiff, her grandson and heir of her body; and Grace died, leaving Diones Geere, the other lessor of the plaintiff, her only son and heir of her body. Under these circumstances, an action of ejectment was brought by James Gregory and Diones Geere for two equal third parts of the premises; and they obtained a verdict accordingly for two equal third parts, and neither more nor less. Neither the counsel engaged in the cause, nor the court, seem for a moment to have imagined that they could have been entitled to any other shares. It is evident, therefore, that the court supposed, that, on the decease of Martha, |