appointment will promote or impede the execution of the trusts, since the purpose of the appointment is, that the trusts may be better carried into execution. § 1289 c. The Court of Chancery Appeal will carry into effect an order of the Divorce Court, directing the dividends of a fund in court, to which the wife was entitled for her separate use, to be applied as though she were dead. But in the absence of persons interested in the corpus of the fund, the costs will not be thrown upon that.1] § 1290. Before concluding the subject of trusts, it may be proper to say a few words in regard to such trusts, as either attach to trust property situate in a foreign country, or are properly to be executed in a foreign country. The considerations belonging to this branch of equity jurisprudence are not, indeed, limited to cases of trust; and, therefore, we shall here bring them together in one view, as, for the most part, they are equally applicable to every subject within the reach of equitable relief. § 1291. The jurisdiction of courts of equity, in regard to trusts, as well as to other things, is not confined to cases where the subject-matter is within the absolute reach of the process of the court, called upon to act upon it; so that it can be directly and finally disposed of, or affected by the decree. If the proper parties are within the reach of the process of the court, it will be sufficient to justify the assertion of full jurisdiction over the subject-matter in controversy.2 The decrees of courts of equity do, indeed, primarily and properly, act in personam, and, at most, collaterally only in rem.3 Hence, the specific performance of a contract for the sale of lands, lying in a foreign country, will be decreed in equity, whenever the party is resident within the jurisdiction of the court. So, an injunction will, under the like circumstances, be granted to stay proceedings in a suit in a foreign country.5 § 1292. These are not, however, peculiar or privileged cases for the exercise of jurisdiction; for courts of equity will, in all other cases, where the proper parties are within the territorial sovereignty, or within the reach of the territorial process, administer full 1 Pratt v. Jenner, 12 Jur. N. s. 557; s. c. Law Rep. 1 Ch. App. 493.] * Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, 2 Paige, 606, 615; Com. Dig. Chancery, 4 W. 27. Penn v. Lord Baltimore, 1 Ves. 444; Mitchell v. Bunch, 2 Paige, 615. Ante, § 899, 900. relief, although the property in controversy is actually situate in a foreign country, unless, indeed, the relief which is asked is of a nature which the court is incapable of administering. Many instances of this sort may readily be adduced, to illustrate this general doctrine and its exceptions. Thus, a party resident in England, who is a joint-tenant of land, situate in Ireland, may be decreed to account for the profits of such land in the Court of Chancery in England.1 But a bill for a partition of lands, situate in Ireland, will not be entertained in a court of chancery in England; because (as has been said) it is in the realty, and the court cannot award a commission into Ireland; and a bill for a partition is in the nature of a writ of partition at the common law, which lyeth not in England for lands in Ireland.2 § 1293. The same doctrine is applied to cases of trusts attached to land in a foreign country. They may be enforced by a court of equity in the country where the trustee is a resident, and to whose process he may rightfully be subjected. It is also applied to cases of mortgages of lands in foreign countries. And a bill to foreclose or redeem such a mortgage may be brought in any court of equity, in any other country, where the proper parties are resident. It was aptly said, by Lord Kenyon, when Master of the Rolls, in a case then before him: " It was not much litigated that the courts of equity here have an equal right to interfere with regard to judgments and mortgages upon the lands in a foreign country, as upon lands here. Bills are often filed upon mortgages in the West Indies. The only distinction is, that this court cannot act upon the land directly, but acts upon the conscience of the person here." And, after citing some cases to this effect, he added: "These cases clearly show, that, with regard to any contract made in equity between persons in this country respecting lands in a foreign country, particularly in the British dominions, this court will hold the same jurisdiction as if they were situate in England.”5 1 Com. Dig. Chancery, 3 X. 4 W. 27; Cartwright v. Pettus, 2 Ch. Cas. 214. 2 Cartwright v. Pettus, 2 Ch. Cas. 214; Carteret v. Petty, 2 Swanst. 323; s. c. 1 Eq. Abr. C. 133; Com. Dig. Chancery, 3 X. 4 E. 4 W. 27; Earl of Kildare v. Eustace, 2 Ch. Cas. 188; s. c. 1 Vern. 419, 422; 1 Eq. Abr. 133, C. 4. * Earl of Kildare v. Eustace, 1 Vern. 419, 422; 1 Eq. Abr. 133. Toller v. Carteret, 2 Vern. 494; s. c. 1 Eq. Abr. 134, pl. 5; Com. Dig. Chancery, 3 X. 5 Lord Cranstown v. Johnston, 3 Ves. Jr. 182; Earl of Derby v. Duke of Athol, 1 Ves. 202; Gascoine v. Douglas, 2 Dick. 431. § 1294. The same doctrine is applied to cases of frauds, touching contracts or conveyances of real property situate in a foreign country. Thus, if a rent-charge is fraudulently obtained on lands lying in Ireland, a bill to set it aside will be sustained in the Court of Chancery in England, if the defendant is a resident there.1 Courts of equity have gone even further, and have, in effect, as between the parties, overhauled the judgments of foreign courts,2 and even the sales made under those judgments, where fraud has intervened in those judgments, or a grossly inequitable advantage has been taken. In such cases, they do not, indeed, disregard such judg ments, or directly annul or control them. But they arrive at the equities between the parties in the same manner as they would if the proceedings had been mere matters in pais, subject to their general jurisdiction.3 § 1295. In some instances, language has been used which may be supposed to limit the jurisdiction to cases where the lands, though situate abroad, are yet within the general sovereignty of the nation exerting the equitable jurisdiction; as, for instance, suits in the Chancery of England, in regard to contracts, trusts, frauds, and other matters, touching lands in Ireland, or in the colonies of Great Britain. Lord Hardwicke, on one occasion, said, on this subject: "The different courts of equity are held under the same crown, though in different dominions; and, therefore, considering this 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."4 But this language, properly interpreted, was meant to apply only to the case then before the court, which was a suit respecting matters arising in a British colony, and subjected to judicial decision there. Upon any other interpretation, it would be inconsistent with the principles upon which courts of equity profess to act in matters of jurisdiction. § 1296. Indeed, Lord Hardwicke himself, in another case, where a bill was brought for possession of land in Scotland, and for a disSee post, § 1576. ' Earl of Arglasse v. Muschamp, 1 Vern. 75. 'Lord Cranstown v. Johnston, 3 Ves. Jr. 170; Jackson v. Petrie, 10 Ves. 165; White v. Hall, 12 Ves. 321; Story on Conflict of Laws, § 544, 545; Com. Dig. Chancery, 3 X. 4 W. 27. 4 Foster v. Vassail, 3 Atk. 589. covery of the rents and profits, deeds and writings thereof, and of fraud in obtaining the deeds, asserted the jurisdiction as to the fraud and discovery, and said, that this would have been a good bill, as to fraud and discovery, if the lands had been in France, and the persons were resident here; for the jurisdiction of the court, as to frauds, is upon the conscience of the party.1 § 1297. The same principle has been asserted by the Supreme Court of the United States, in its broadest form; and it has been held, that, in cases of fraud, of trust, or of contract, the jurisdiction of a court of equity is sustainable, wherever the person may be found, although lands not within the jurisdiction of that court may be affected by the decree.2 § 1298. Still, it must be borne in mind, that the doctrine is not without limitations and qualifications; and that, to justify the exercise of the jurisdiction in cases touching lands in a foreign country, the relief sought must be of such a nature as the court is capable of administering in the given case. We have already seen, that a bill for a partition of lands in a foreign country will not be entertained in a court of equity, upon the ground that the relief cannot be given, by issuing a commission to such foreign country.3 Perhaps a more general reason might be given, founded upon the principles of international law; and that is, that real estate cannot be transferred, or partitioned, or charged, except according to the laws of the country in which it is situated. § 1299. Another case, illustrative of the same qualification, may be put, which has actually passed into judgment. A bill was brought, in the English Court of Chancery, for the delivery of the possession of a moiety of land in St. Christopher's, and likewise for an account of the rents and profits thereof. Upon demurrer, it was held, that the court had no jurisdiction to put persons into possession, in a place where they had their own methods on such occasions, to which the party might have recourse; for lands in the plantations (it was said) are no more under the jurisdiction of the court than lands in Scotland; for it acts in personam only. But the bill, as to the rents and profits, was retained.* § 1300. The like decision was made in another case, already 1 Angus v. Angus, 1 West, 23. Massie v. Watts, 6 Cranch, 160. 3 Ante, § 1292; Cartwright v. Pettus, 2 Ch. Cas. 214; s. c. 1 Eq. Abridg. 133; Carteret v. Petty, 2 Swanst. 323. 4 Roberdeau v. Rous, 1 Atk. 543; ante, § 1295, 1296. alluded to, upon a bill brought in the same court, for possession of lands in Scotland, and for a discovery of the rents and profits, deeds and writings thereof, and fraud in obtaining the deed. A plea was put in, insisting that the matter was without the jurisdiction of the court. But it was overruled; and the court said, that it could act upon the person as to the fraud and discovery. So, where a bequest was made for a charity to be administered in Scotland, the English Court of Chancery declined to take the administration of it into its own hands, deeming it proper to be acted on by the courts of Scotland.2 CHAPTER XXXIV. PENALTIES AND FORFEITURES. [* § 1301. Relief in equity against penalties and forfeitures. § 1302. Cases of impossibility, illegality, and repugnance. § 1303. At law such contracts held void. § 1304. Same rule generally applies to conditions. § 1305. Impossible conditions, such as no human power can accomplish. § 1306. Void conditions, precedent, defeat the estate subsequent, estate becomes absolute. § 1307. Bonds dependent upon void or impossible conditions. § 1307 a. Devise to have prayers in church. § 1308-1310. Rule of the civil law upon the subject stated. § 1311. No relief from forfeitures of, at law. § 1312. Courts of equity grant relief, in such cases, in discretion. § 1313. Interest during the period of delay is treated as compensation. § 1314. Relief granted in all cases of penalty, if compensation can be made. § 1315. This extends to forfeitures and conditions, precedent and subsequent. § 1316. This is done to prevent injustice. § 1316 a. Equity will give obligee interest beyond penalty. § 1317. The same rules obtained in the civil law. § 1318. Liquidated damages enforced in equity. § 1319. Equity will never aid in enforcing penalties. § 1320, 1321. Always relieves against penalties, but not always against forfeitures. § 1322. Probable explanation of the distinction. § 13 23. English courts hold forfeitures not relievable generally. § 1824. Equity will not interfere, unless compensation can be made. 2 Provost, &c. of Edinburgh v. Auber, Ambler, 236; Attorney General v. Lepine, 2 Swanst. 182; Emery v. Hill, 1 Russell, 112; Minet v. Vulliamy, id. 113, note; ante, § 1184 to 1186. |