very difficult, the Court of Chancery has interfered and given relief, upon the foundation only of payment of the rent for a long time, which bills are called Bills founded upon the solet. The Court has even gone so far as to give relief where the nature of the rent (as there are many kinds at Law,) has not been known, so as to be set forth (n): but then all the terre-tenants of the lands out of which the rent issues must be brought before the Court, the better to enable it to make a complete decree (o).

So, where there is a clear right to rent, but no remedy at Law, as no demesne Lands on which to distrain, Equity will give relief (p); as it will also, where, from a confusion of Boundaries, no Land can be found for a distress (q).

It has long been settled, that a tenant contracts, among other obligations resulting from that relation, to keep distinct from his own property during the tenancy, and to leave clearly distinct at the end of it, his landlord's property, not in any way confounded with his own. It is therefore a common Equity that a tenant having put his landlord's property and his own together for his own convenience, in order to make the most of it during his tenancy, is bound at the end of the term to render up specifically the landlord's land; and, if he cannot, that a commission shall issue from a Court of Equity to inquire what were the Lands of the Landlord; the Court taking care, to the intent that the Tenant may discharge his obli

(n) See 1 Ch. Cas. 120.

(0) Benson v. Baldwyn, 1 Atk. 598; and see Bouverie against Prentice, 1 Bro. C. C.

(p) Duke of Leeds v. Powell, 1 Ves. 171.

(q) Ib. 172; and see Smith v. Duke of Northumberland,

gation to do what is right, as to the possession in the mean time; and if the Tenant has so confounded the Boundaries, subdividing the Land by hedges and stones, and destroying the metes and bounds, so that the Landlord's Land cannot be ascertained, the Court will inquire what was the value of the Landlord's Estate, valued fairly, but to the utmost, as against that Tenant, who has himself destroyed the possibility of the Landlord's having his own (r). The granting of Commissions to ascertain Boundaries is a very ancient branch of Equitable Jurisdiction (s). The two Writs in the Register, de rationabilibus divisis (t), and de perambulatione facienda (u), are supposed to have led to the Jurisdiction in cases of controverted boundaries (a). In Wake v. Conyers(y) Lord Northington was of opinion, that the Court has simply no Jurisdiction to settle the Boundaries of Land, unless some Equity was superinduced by act of the parties; and in that case a bill to ascertain the Boundaries of two Manors was dismissed, there being no dispute as to the soil; and Sir William Grant, Master of the Rolls, was likewise of opinion, that the circumstance of a confusion of Boundaries, furnishes, per se, no ground for the interposition of the Court (2), and refused to entertain a Bill of this description between two independent Proprietors, to force either to have his right so determined (a).

(r) The Attorney-General v. Fullarton, 2 Ves. & Bea. 264, 5; and see Redesd. Tr. Pl. 94. Ed. 3, and the cases there cited.

(s) See Mullineux v. Mullineux, Toth. 101. Spyer v. Spyer, Nels. 14.

(t) Reg. Brev. 157 b.

(u) Reg. Brev. 157.

(x) Speer v. Crawter, 2 Meriv. 416.

(y) 2 Cox 360, S. C. 1 Eden, 331.

(2) Speer v. Crawter, 2 Meriv. 418.

(a) Ib. 410, &c.

A Commission has been granted to ascertain Boundaries, and if not to be distinguished, to set out the value, upon a Bill by a Prebendary against Lessees of the Prebendal Lands, also Owners of other Lands within the Parish, with which the Prebendal Lands had become intermixed and confounded, by reason of the unity of possession (b); and on such Bill, it was held that the Prebendary is entitled to have as many Commissioners as his Lessees (c).

So, a Lord of a Manor may file a Bill for a Commission to distinguish Copyhold Lands within the Manor from Freehold, and compounded from uncompounded Copyholds, and to ascertain the Boundaries; and if they cannot be distinguished, to set out Lands of the Tenant of equal value with so much of the Copyhold Lands as cannot be distinguished (d). Though in cases of Bills to ascertain Boundaries the interest of one party is more inconsiderable than that of another, yet they must equally bear the expense of the Commission (e); unless, perhaps, where there has been fraud or neglect, by which the confusion of Boundaries has been occasioned.

Equity relieves against Penalties, and originally, it is apprehended, on the ground of accident. It relieves, for instance, against non-payment of money at a certain day (f), as in the common case of a bond for the payment of money, or of a Mortgage debt, where the Title of the Mortgagee has become absolute at

(b) Willis v. Parkinson, 2 Meriv. 507.

(c) Willis v. Parkinson, 1 Swanst. 9.

(d) Duke of Leeds v. Earl of Strafford, 4 Ves. 180. See

(e) Norris v. Le Neve, 3 Atk. 83.

(f) See Grimstone v. Lord Bruce, 2 Vern. 594. Sir Henry Peachy and Duke of Somerset, 1 Str. 453. Sloman v. Walter,

Law (g). So, in the case of an Estate sold by auction, there is a condition to forfeit the deposit if the purchase be not completed within a certain period; but the Court is in the constant habit of relieving against the lapse of time (h). Relief, however, in cases, of Penalties is dispensed only where the Court can do it with safety to the other party; for it seems, if it cannot put him into as good a condition as if the agreement had been performed, the Court will not relieve (i). It will only relieve, where the thing may be done afterwards, or a compensation made for it (k); but unless a full compensation can be given, so as to put the party precisely in the same situation, a Court of Equity will not interfere; for such a Jurisdiction would be arbitrary (1). There are some exceptions to this rule ; one of which is, where a voluntary composition is to be paid at a time certain, and in a certain manner. In such case, it is the voluntary bounty of the creditor to remit part of the debt, and the terms must be strictly complied with (m).

Where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of

Ves. 291. Wafer v. Moccato, 9 Mod. 112, 113; but see Bracebridge v. Buckley, 2 Price 200. Rolfe v. Harris, cited Ib. p. 206. Reynolds v. Pitt, cited Ib. 212, which cases seem in opposition to Sanders v. Pope.

(m) Rose against Rose, Ambler, 332; and see Sewell v. Masson, 1 Vern. 210. 1 Ch. Cas. 110. Ex parte Bennet, 2 Atk. 527. Leigh v. Barry, 3 Atk. 585. Mackenzie v. Mackenzie, 16 Ves. 372.

the object is considered as the principal intent of the Deed, and the penalty only as accessional, and therefore only to secure the damage really incurred: and in such cases, if the penalty of the bond is sued for at law, an injunction will be granted, and an issue, quantum damnificatus, directed (n).

It has been held, that if there be a mortgage at 5 per cent. with a condition to take 4 per cent. if regularly paid; or a mortgage at 4 per cent. to have 5 per cent. if not regularly paid, the 5 per cent. is regarded in Equity only as a penalty to secure the 4 per cent.; and the party is relieved from paying the 5 per cent. by paying the 4 per cent. and putting the other party in the same condition as if the 4 per cent. had been paid : that is, by paying him Interest upon the 4 per cent. as if it had been received at the time (o). This position, however, in its full extent, does not seem warranted by the authorities; and the rule rather appears to have been, that if money be lent on mortgage at 4 per cent. Interest, but if not punctually paid, then to pay Interest at the rate of 5 per cent. a Court of Equity will consider the 5 per cent. but as nomine paene, and relieve (p), unless there has been a long arrear of Interest (q), or a special agreement (r); but where Interest is reserved at 5 per cent. and if duly paid, 4 per cent. to be accepted, and it is not punctually paid, the Court will not relieve (s).

(n) Sloman against Walter, 1 Bro. C. C. 418. Hardy v. Martin, 1 Cox, 26. Keating v. Sparrow, 1 Ball & Bea. 374.

(0) Seton v. Slade, 7 Ves. 273, 4.

(p) Holles v. Vyse, 2 Vern. 290. Strode v. Parker, 2 Vern.

316. Bonafons v. Rybott, Burr, 1375; and see what Heath, Just. says in 2 Bos. & Pull. 353. (q) Brown v. Barkham, 1 P. Wms. 652.

(r) Stanhope v. Manners, 2 Eden, 197.

(s) 2 Vern. 290. Hallifax