UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 'M CRABBS COMPLETE SERIES OF PRECEDENTS IN CONYEYANCING AND OF (Common antr (fTommercial jForms IN ALPHABETICAL ORDER, ADAPTED TO THE PRESENT STATE OF THE LAW AND THE PRACTICE OF CONVEYANCING} ■WITH COPIOUS PEEFACES, OBSEEVATIONS AND NOTES ON THE SEVERAL DEEDS. EDITED BY J. T. CHRISTIE, ESQ., BARRISTER- AT-L AW, THE FIFTH EDITION, WITH NUMEROUS CORRECTIONS AND ADDITIONS, BY LEONARD SHELFORD, ESQ., OF THE MIDDLE TEMPLE, BARRISTER- AT-LAW. IN TWO VOLUMES. VOL. L LONDON : BUTTERWORTIIS, 7, FLEET STREET, iLab iPublisfiers to tf)e Oueen's most ({Excellent fBajcstg. HODGES, SMITH & CO., ORAFTON STREET, DUBLIN. 1859. ;2 r LONDON : PRINTED BY C. ROWORTH AND SONS, BELL YARD, TEMPLE BAR. ADVERTISEMENT. The Prefaces to this Edition have been carefully revised with reference to the great changes in the Law which have taken place of late years. In many instances it was found necessary or expedient to rewrite a considerable portion of the Prefaces. Such Forms in the last Edition of the Work as were considered obsolete or useless have been omitted. The Forms have been revised generally, and many new Forms have been introduced, so that this Edition contains a large portion of matter which is entirely new. An Index to the Prefaces, which was not contained in the last Edition, is added, and the Index to the Forms is enlarged. Upon the whole a confident expectation is entertained, that the practical usefulness of the Work to the general Practitioner and to the Student will be found to be considerably increased by the pains and labour which have been bestowed upon this Edition. 3, Brick Court, Temple, July, 1859. V93697 GENERAL TABLE OF HEADS OF PREFACES AND FORMS. Abstracts . . Page . 1-30 Accounts 30 Acknowledgments 31 Acquittances Admittances 36 38 Affidavits, Affirmations or Declarations 41 Agreements to relinquish Business to Guarantee 77 91 93 for a Lease 95 bjefore Marriage . . . 116 for a Partition . 127 between Principal and Agent . 135 for the Sale and Purchase of Estates . 156 for Sale of Copyhold Estates for Sale of Leaseholds . 163 . 167 for Sale of an Advowson . 170 Annuity secured on Copyholds Annuities, Assignments of . . . 179 . 201 . 222 Appointments of Guardians . 231 . 268 Apportionment Apprenticeship to the Sea Service . 285 . 292 . 297 to an Attorney Assignment of Arbitration . 301 . 305 . 308 Award . 331 Assignments . 344 Bonds . . . 360 Leases . . Patents . 388 . 406 Pews . . . 409 Policies of Insurance . 410 Reversionary Interests . 414 vi TABLE OF HEADS OF PREFACES AND FORMS. Page Attestations . . . . . • • • • • 427 Attornments . . . . • • • • • • ^^^ Auctions . . . . . . . . • • • • 4^*^ Particulars of Sale . . . . . . . • 442 Bargains and Sales . . . . • . • • • • 445 of Timber.. .. .. ..458 Bills of Sale of Goods .. .. .. ..462 Bonds . . . . . • • • • • • • 492 Administration . . . . • • • • 500 Receiver pending Suit . . . . . • • • 504 Post Obit .. .. .. .. ..549 Stamps on . . . . . . . . • ♦ "90 Composition . . . . • • • • • • 559 Conveyances in Trust for Creditors . . . . 584 Conditions . • . . • • • • • • 620 of Sale .. .. .. .. ..621 Confirmations . . . . . • • • • • 663 Consents . . . . . . • • • • • • "*^" Copartnership . . . . • • • • • • 673 Dissolution of . . . . . - • • 751 Covenants . . . . • • • • • • • • ' *" Stam])s on . . . • • • • • 888 for Production of Title Deeds .. .. 804 Declarations . . . . • • • • • • °1«* Deeds. I. Nature of Deeds in General .. .. •• 839 II. Requisites of a Deed .. •• •• 840 III. Formal parts of Deeds IV. Where a Deed is necessary or otherwise V. Construction of Deeds . . . . . . 867 VI. Avoiding of Deeds .. .. .. •• 870 VII. Proof of Deeds .. .. .. ..876 VIII. Admission of Parol Evidence as to Deeds .. 877 IX. Possession of Deeds . . . . . • ib. X. Stamp Duty on Deeds . . . . . . 879 Defeasances . . • • • • • • • • """ Demises . . . . . • • • • • ♦ • •^04 Deputation . . . . • • • • • • 907 Disclaimers . . . . . . • • • • 1340 Disentailing Deeds .. .. .. •• •• 910 Distress . . . . . • • • • • • • 940 Notices of .. .. .. .. ..942 Dower . . . . • « « • • • • • 9oo Enfranchisements . . . . ... • • • • 954 846 S66 TABLE OF HEADS OF PREFACES AND FORMS. Vll Page Exchanges . . . 965 Feoffments . . . . . . . 970 Gifts . , . . " . 979 Grants . 981 of Way or Road . 996 Indemnities . 998 Leases, I. Nature of Leases in General . 1012 II. Requisites to a Lease . . ib. III. Parts of a Lease . 1024 IV. Incidents to a Lease . 1029 V. Stamps on Leases . 1034 Letters of Credit . 1112 Licences . 1115 Mortoaones . . . 1119 of Copyholds . 1168 of Leaseholds . 1175 Transfer of . 1194 Stamp Duty on . 1126 Notes, Orders, Warrants, &c. . . 1200 Notices . 12U6 to Quit . 1216 Partition . 1222 Powers . 1233 of Attorney . . . ib. Purchase Deeds . 1255 Conveyance of Copyholds . 1280 Assignments of Leaseholds . 1294 Stamps on . . . 879 Recitals . 1307 Releases or Conveyances . 1324 or Discharges . 13-26 Renunciations or Disclaimers . . . 1340 Resignations . 1344 Revocations . 1345 Separation . 1347 Settlements . 1339 Stamp Duty on . . . 1367 Shipping . 1445 Bills of Lading . 1481 Bottomry and Respondentia Bonds . I486 Charter Parties . 1491 Surrenders • . • • . 1500 vin TABLE OF HEADS OF PREFACES AND FORMS. Wills 1. Definition of Will and Codicil 2. To what Wills the Act 7 Will. 4 & 1 Vict not apply 3. What may be disposed of by Will 4. Of the capacity of Persons to make Wills 5. Who may or may not be Devisees 6. Execution of Wills 7. Publication of Wills 8. Revocation of Wills 9. Lapse of Devises and Bequests 10. Provisions and Clauses in Wills 11. Construction of Wills c. 20 does Page 1508 1509 ib. 1510 1511 1518 1522 1523 1524 1525 1528 1530 TABLE OF CONTENTS. VOLUME I. No. Page ABSTRACTS OF TITLE. Preface . . . . . . . . . . . . 2 ACCOUNTS. 1. Allowance of an Account stated (with Observations) . . 30 2. Allowance of an Account stated by a Nominee appointed under the 17 Geo. 3, c. 53, for building or repairing a Parsonage (with Observations) . . . . . . 31 ACKNOWLEDGMENTS (with General Observations). 3. Acknowledgment that an Agreement entered into by one was in behalf of another . . . . . . . . 32 4. Acknowledgment of having received a Bill of Exchange for a particular Purpose . . . . . . . . ib. 5. Acknowledgment of a Debt, so as to take the Case out of the Statute of Limitations . . . . . . ih. 6. Acknowledgment of a Debt or Legacy still due, to prevent its being barred by the 3 & 4 Will. 4, c. 27, s. 40 . . 33 7. Acknowledgment of the Receipt of Deeds . . . . ib. 8. Acknowledgment by a Nominee, under the 17 Geo. 3, c. 5ii, of the Receipt of Money borrowed under the Directions of the Act . . . . . . . . . . ib. Acknowledgment of having received Mortgage Money, see post, Acquittances. f). Acknowledgment of Writings received by a Mortgagee (with Schedule) . . . . . . . . ib. 10. (I) Acknowledgment by Mortgagee in Possession of the Mortgagor's Title, so as to take the Case out of the Statute 3 & 4 Will. 4, c. 27 (with Observation) . . 34 10. (2) Acknowledgment of a Person's Title to certain Land, so as to take the Case out of the Statute 3 & 4 Will. 4, c. 27 (with Observation) . . . . . . ib. X CONTENTS OF VOL. 1. No. P^g^ 11. Acknowledgment by Trustees of the Transfer of Stock upon Trust . . . . • • • • . . oj 12. Acknowledgment by a Vendor and Wife of a Deed before the Lord Mayor of London, indorsed thereon previously to Inrolment in the Lord Mayor's Court, to bar the Wife of Dower (with Observation) . . . . ib. ACQUITTANCES. Preface . . . . . • • • • • . . 36 13. Acknowledgment of having received Mortgage Money .. 37 14. Acquittance for Purchase Money in a Conveyance . . ib. 15. Another, where the Consideration is Stock . ..38 16. Acquittance from Vendors, being Trustees under a Will, to Purchasers in equal Moieties . . . . . . ib. ADMITTANCES. 17. Admittance of a new Tenant to Copyholds (with Observa- tions) . . • . . . . • . . 39 18. Form of Admittance out of Court by the Steward of a Devisee in Fee . . . . . . . . 40 AFFIDAVITS, AFFIRMATIONS, OR DECLARATIONS. Preface . . . . . • - • • • . . 41 19. Affidavit of the Execution of Deed of Submission to Arbi- tration . . . . . . . • . . 44 20. Affidavit of the Execution of Articles of Clerkship .. 45 21. Affidavit of Execution of Assignment of Articles of Clerk- ship . . . . . • . . • • . . 46 22. Affidavitof Service of Clerkship, and of having given the Notices of Admission (with Observation) . . . . 47 23. Affidavit of the Payment of the Stamp Duty .. ..49 24. Affidavit of Execution of Bill of Sale . . .. ..50 25. Affidavit for Order to enter Satisfaction on Registry of Bill of Sale . • . . . . . • . . 51 26. Affidavit of Payment of Judgment Debt . . . . 52 27. Affidavit verifying Certificate of Acknowledgment made by a Married Woman (with Observations) . . . . ib. 28. Affidavit of the Execution of the Memorial of a Deed by one of the Witnesses (witli Observations) . . . . 55 29. Declaration of Identity of Parcels .. .. . . ib. 30. Declaration of long Possession of an Estate as Evidence of Ownership . . . . . . • • . . 5Q 31. Affidavit verifying Account of Personal Estate .. ..57 CONTENTS OF VOL. I. XI No. Page 32. Affidavit as to Real Estate, and verifying Account of Rents and Profits . . . . . . . . . . 59 33. Affidavit to prove Debt . . . . . . ..62 34. Affidavit of Auctioneer of result of Sale under a Decree of the Court of Chancery . . . . . . . . ib. 35. Affidavit verifying Abstract. . .. .. ..64 36. Affidavit verifying Engrossment .. .. ..65 37. Affidavit of Execution of Deed .. .. . . ib. 38. Affidavit of Service of Chief Clerk's Summons .. ..66 39. Affidavit of the Personal Service of a Bill or Claim .. ib. 40. Affidavit of Service of a Bill or Claim at the Dwelling- house of the Defendant .. . .. ..67 41. Affidavit of Attesting Witness in proof of the due Execution of a Will or Codicil dated after 31st December, 1837. . ib. 42. Affidavit for the Commissioners of Inland Revenue — For Executors . . . . . . . . . . 68 43. Affidavit for the Commissioners of Inland Revenue — For Administrators with the W^ill annexed . . . . 69 44. Affidavit for the Commissioners of Inland Revenue — For Administrators . . . . . . . . 70 45. Oath for Executor . . . . . . . . . . 71 46. Oath for Administrators with the Will. . . . . . ib. 47. Oath for Administrators . . . . . . . . 72 48. Justification of Sureties .. .. .. ..73 49. Affidavit of Handwriting . . . . . . . . ib. 50. Affidavit of Plight and Condition and Finding .. ..74 51. Affidavit of Search .. .. .. ..75 52. Affidavit of a Creditor on applying for Letters of Adminis- tration, where the Executor is abroad (with Observa- tion) . . . . . . . . . 76 Agreevients, Preface . . . . . . . . 77 53. Agreement for Building a House (with Observations) . . 82 54. Agreement for Building a Ship .. .. ..84 55. Agreement between a Manufacturer or other person with a Carrier, to explain and restrict the provisions of the 11 Geo. 4 & 1 Will. 4, c. 68 (with Observation) . . 85 56. Agreement for the Hire of a Coach or a Chariot. . .. 86 A'Teement to accept a Composition, see po.v^, Composition. 57. Agreement to enter into Copartnership at some future time (with Observations) . . . . . . . . 88 Agreement for Dissolution of Copartnership, see post, Co- rARTNERSHIP (DISSOLUTION). 58. Agreement by a Person to pay a Debt contracted during Infancy (with Observations) .. .. ..89 X" CONTENTS OF VOL. I. No. p asfe 59. Agreement for an Exchange (with Observation). . . . 90 Agreement for Freight, see jwsl, Shipping. CO, Agreement to relinquish a Business in favour of another (with Observations) . . . . . . . , 91 Agreements to Guarantee, Preface . . . . . . 93 61. Agreements to Guarantee the Payment of Goods furnished to a third Person.. .. ., ,. ..95 Agreements for a Lease, Preface . . . . . . ib. 62. Agreement for the Lease of a House (General Precedent). . 99 63. Agreement for the Lease of a Farm (General Precedent) . . 101 64. Agreement for Letting a Farm ,. .. ..102 65. Agreement to let a Furnished House or Apartments (with Observation) .. .. .. .... ..107 66. Agreement for a Building Lease or Building Leases (General Precedent) .. .. .. .. ..108 67. Agreement from the Lessee to demise Ground held by him under the foregoing Agreement .. .. ..112 68. Agreement to let a Field for Building . . .. ..114 69. Agreement to occupy a Cottage . . ■, .. ..115 Articles of Agreement before Marriage, Preface . . 116 70. Articles for a Settlement of the Freehold, Copyhold and Personal Property of the intended Wife, an Infant . . 117 71. Agreement that a person shall hold Title Deeds as a De- posit and for a Mortgage at some future time (with Observations) ,. .. .. ..124 72. Agreement for a Mortgage, with a Deposit of Title Deeds 125 Agreements for a Partition, Preface . . . . . . 127 73. Agreement between two Joint Tenants of Freeholds or Copyholds to make Partition .. .. .. 128 74. Agreement for Partition to be made by Commissioners 129 75. Agreement between two Joint Tenants to hold in Severalty 132 76. Agreement between Parties entitled under a Will to make equal distribution (with Observation) .. ..133 Agreements between Principal and Agent, Vreface .. 135 77. Agreement between a Brewer and a Managing Clerk (with Observation) .. .. ., .. 137 78. Agreement between a Merchant or Manufacturer and a Factor .. .. .. .. ..139 79. An Agreement with an Agent for the Sale of Articles of Manufacture .. .. .. ., .. 140 80. An Agreement with an Agent or Broker to take and dispose of Goods Abroad .. .. .. ..148 CONTENTS OF VOL. I. Xlll No. Page 81. An Agreement between a Tradesman and an Agent for the Management of his Business on the retirement or during the absence of the Principal . . . . 150 82. Agreement to form an Association for the Prosecution of Offenders . . . . . . . . . . \5o Agreements for the Sale and Purchase of Estates, Preface \56 83. Agreement for the Sale of a Freehold Estate . . . . 159 84. Another (Short Form) .. .. .. ..162 Sale of Copyhold Estates, Preface . . , . . . 163 85. Agreement for the Sale of a Copyhold Estate of Inheritance ib. 86. Agreement for the Sale of a Freehold and Copyhold Estate to an Agent (with Observation) .. .. ..164 87. Agreement between two Guardians respecting the Purchase of an Estate by them for their Infant Ward . , 166 Agreement whereby Part of Purchase Money is to remain in Purchased Lands until Minors attain Twenty-one, see post, Purchases. 88. Agreement for the Sale of Leasehold Premises, with a Covenant to take the Furniture (with Observations) 167 89. Agreement for the Purchase of Leasehold Premises .. 169 90. Agreement for the Sale of Advowson (with Observations) 170 91. Agreement for the Sale of a next Presentation to a Rectory 172 92. Agreement to assign a Boarding School, Lease of the Pre- mises and Furniture .. .. .. ..173 93. Agreement for the Sale of Standing Timber . . . . 174 Agreements following and referring to Conditions of Sale, see post. Conditions of Sale. Agreements as to Shipping, see post, Shipping. 94. Agreement for letting Purchaser into Possession before Acceptance of Title (with Observations) . . . . 176 95. Agreement that certain acts shall not be deemed a Waiver of an Agreement .. .. .. ..177 96. Agreement for settling Litigations and Questions arising under a Will . . .. ,. , . ..178 Annuity, Preface . . . . . . . . ..179 97. Agreement to grant an Annuity (with Observations) .. 183 98. Bond to secure the Payment of an 7\nnuity to a former Mistress (with Observations) .. .. ..185 Bond for securing the Payment of an Annuity, see post, Bonds. 99. Grant of an Annuity for the Life of the Grantor, secured on Vreeholds (General Precedent, with Observation) .. 187 XIV CONTENTS OF VOL. I. No. Page Grants of Annuities secured on Copyholds, Preface . . 201 100. Grant of an Annuity for the Life of the Grantee, secured on Copyholds . . . . . . . . . . 202 101. Grant of an Annuity by a Copyholder seised for an Estate for Life carved out of the Inheritance . . . . 20.5 102. Demise of a Leasehold Estate as a Collateral Security for the Payment of an Annuity for Lives . . . „ 213 103. Covenant to pay an Annuity, with an Assignment of Life Interest in Stock standing in the Names of Trustees (Concise Form) .. .. .. ..217 Assignments of Annuities, Preface . . . . . . 222 104. Assignment of an Annuity . . . . . . . . ih. 105. Assignment of an Annuity to Trustees, for the purpose of exonerating part of the Estates charged therewith . . 227 106. Release of an Annuity on a Repurchase . . . . 229 Annuities in Deeds, see Index to Precedents. Appointments, Vreface .. .. .. ..231 107. Appointment of a Freehold Estate to Children to be in- dorsed on a Deed of Release . . . . . . 235 Appointment under a Power in a Settlement, where old Uses are revoked and new ones are appointed, see post, Pur- chases. Conveyances by Appointment and Grant from a Vendor to Purchaser, see post, Purchases. 108. Appointment of Freehold and Copyhold Estates under a Power in a Settlement, with Power of Revocation where the Legal Estate is vested in the Trustees . . 237 Mortgage by Appointment and Grant, with Power of Sale, see post, Mortgages. 109. Appointment of a Jointure by virtue of a Power under a Will (with Observation) .. .. ., 241 110. Appointment and Disposition by a Married Woman (with Observation) . . . . . . . . . . 243 111. Appointment by a Mother in favour of her Son under a Power in an Act of Parliament . . . . . . 245 112. Appointment of a Portion in exercise of a Power contained in a Marriage Settlement . . . . . . 246 113. Appointment of Money to be paid by Trustees to Bankers to be drawn for by a Married Woman for her separate use or received by her . . . . . . - . 247 114. Appointment and Disposition of Money by a Married Woman . . . . . . . . . . 249 115. Appointment in pursuance of a Power to Trustees for a Term for raising Portions for Younger Children . . ib. CONTENTS OF VOL. 1. Xv No. Page i(116. Appointment of an Annuity and Portion by a Father in favour of his Daughter on her intended Marriage . . 2oi 117. Assignment of an Annuity and the sum of £ in pur- suance of the preceding Deed and upon the Trust declared by that Deed . . . . , . . . 264 118. Appointment of a Chaplain (with Observations) .. 265 119. Appointment of a Chaplain by a Bishop . . . . 266 120. Appointment of a Parish Clerk (with Observations) . . ib. 121. Appointment of a Gamekeeper (with Observations) .. 267 Appoint7nent of Guardians, Preface . . . . 26S 122. Appointment of Guardian by Father .. .. .. 269 123. Appointment of a Guardian by an Infant (with Observation) ib. 124. Appointment of Receiver to secure Rents to Mortgagee (with Observations) . . . . . . . . 270 125. Appointment of a Steward of a Manor (with Observations) 274 126. Appointment to a Stewardship of a Customary Court Baron, with the Powers created by the x\ct of 4 & 5 Vict. c. 35 275 127. A general Appointment of an Under Steward . . . . 276 128. Deputation to take a Surrender out of Court from C. D. and his Wife of Lands belonging to the Wife . . 277 129. Appointment of New Trustees by virtue of a Power in a Settlement (with Observations) . . . . . . 278 130. Appointment of New Trustees of a Marriage Settlement, and Conveyance, and Assignment by Indorsement of the Real and Leasehold Estates, subject to the Trusts thereof . . . . . . . . . . 281 131. Assignment of Leaseholds by Indorsement in pursuance of Trust in last Deed . . . . . . . . 284 Apportionment, Preface . . . . . . . . 285 132. Agreement for the Apportionment of Rent between Pur- chasers of Leaseholds held under the same Lease . . 288 133. Apportionment of an Annuity .. .. .. 292 Apprenticeship, Preface . . . , . . . . ib. 134. Indenture of Apprenticeship .. .. .. 296 Apprenticeship to the Sea Service, Preface . . . . 297 135. Indenture of Apprenticeship to the Sea Service . . 299 Clerkship to an Attorney, Preface . . . . . . 301 136. Articles of Clerkship .. .. .. .. 30i; 137. Assignment of an Apprenticeship (with Observations) . . 305 138. Assignment of Articles of Clerkship (with Observation) .. 3()() Arbitration, Preface . . . . . . . . 308 139. Agreement to refer Disputes to Arbitration (with Observa- tions) . . . . . . . . . . 318 XVI CONTENTS OF VOL. I. No. Paeje 140. Submission by Indenture .. .. .. .. 320 141. Arbitration Bond (with Observations) .. .. 322 142. Order of Submission by Judge . . . . . . 323 143. Rule of Reference at Nisi Prius when a Juror is withdrawn 325 144. Rule for making a Submission by Bond a Rule of Court , . 226 145. Order to refer all Matters in Difference in the Cause . . ib. 146. Order that an Agreement be made an Order of the Court of Chancery . . . . . . . . . . 327 147. Order to make an Award an Order of the Court of Chan- cery . . . . . . . . . . . . 328 148. Acceptance by the Arbitrators of the Appointment . . ib. 149. Appointment of a third Arbitrator or Umpire (with Obser- vation) . . . . . . . . . . ib. 150. Another .. .. ., .. .. .. 329 151. Nomination of an Umpire by Arbitrators appointed . . ib. 152. Enlargement of the Time for making an Award by the Parties in Dispute . . . . . . . . 330 153. Enlargement of the Time for making an Award by Arbitra- lOI S«* •• •• «• •• •• lU* Arvard, Preface . . . . . . . . . . 331 154. Award pursuant to a Clause in Articles of Agreement for making Repairs . . . . . . . . 333 155. Award under a Submission by Deed .. .. .. 335 156. Award of two Arbitrators under a Submission by Cross Bonds . . . . . . . . . • 336 157. Another Award under a Submission by Cross Bonds between a Surveyor and a Company . . . . . . 338 158. Award of Differences between two Copartners under a Submission by a Judge's Order . . . . . . 339 159. Award under a Submission by Order of the Lord Chan- cellor . . . . . . • . . . 341 160. Award by an Umpire . . . . . . . . 342 ARTICLES. Articles of Clerkship, see ante, Apprenticeship. Articles of Copartnership, see post, Copartnership. Articles of Marriage Settlement, see ante. Agreements. ASSIGNMENTS. Preface . . . . . . . . . . . 344 161. Assignment of an Agreement for the Purchase of an Estate 347 162. Assignment of an Agreement for the Sale of Timber for the Securing the Payment of Debts by Indorsement . . 349 CONTENTS OF VOL. I. XVll No. Page 163. Assignment of an Annuity by a Wife to Executors for dis- charging her Husband's Debt to the Testator . . 350 164. Assignment of an Annuity by Indorsement .. .. 353 165. Assignment of Exchequer Annuities . . . . . . 355 166. Assignment of Articles of Clerkship to surviving Partner ib. 167. Assignment of Articles of Clerkship by Indorsement . . 357 168. Assignment of Bill of Sale of Goods (with Observation) 358 169. Assignment of a Conditional Bill of Sale . . . . ib. Assignments of Bonds, Vxeiace .. .. .. 360 170. Assignment of a Bond ., .. .. . . ib. 171. Assignment of a Bond and Judgment by a Husband and a Wife as a Security for a Debt (with Observation) . . 362 Assignment of a Policy of Insurance to Trustees of a Mar- riage Settlement, upon the Trusts declared by Settle- ment, see post, Settlements. 172. Assignment of Part of the Cargo of a Ship . . . . 365 173. Assignment of a Debenture by way of a collateral Security. . 366 Assignment for Payment of Debts, see post. Composi- tion. 174. Assignment of a Debt by way of collateral Security (with Observation) . . . . . . . . . . 367 175. Another Assignment of a Debt (Short Form) .. .. 369 Assignment of Copartnership Debts, see post, Copartner- ship. 176. Assignment of Debt and Dividends under an Adjudication of Bankruptcy .. .. .. .. 371 177. Assignment of Dower (with Observation) . . . . 373 178. Assignment of an Executorship and Indemnity of the Ex- ecutor by a Mortgage (with Observations) . . . . 374 179. Assignment of Household Furniture and verbal Agreement for a Lease . . . . . . . . . . 376 180. Assignment by a Husband of Household Furniture, Books, Plate, Bills of Exchange, - Witness to the above-men- tioned payment and to the signing hereof CD. A. B. {vendor) E. F. £ 1000 38 ACQUITTANCES. No. XV. Stock. No. XV. Another, where the Consideration is Stock. Received and accepted the day and year first' within-written of and from the within-named (pur- chaser) the transfer of the capital sum of £ V T? rl d reduced bank annuities being the consideration Armuities. within mentioned to be transferred to me. Witness &c. No. XVI. Trustees, ( Vendors). No. XVI. Acquittance from Vendors, being Trustees under a Will, to Purchasers in equal Moieties. Obs. If there are two releases, the receipt must refer to each. We the within-named A. B. C. D. and E, F. parties to the within-written indenture do hereby acknowledge to have received on the day of the date of the within-written indenture of and from the within- named G. H. and I, K. the sum of being the full consideration money within mentioned to be by them paid to us that is one moiety thereof from the ^ £ said G. H. and the other moiety thereof from the said J. K. [// there are two releases add " And for which said sum of £ we have also signed a receipt in like manner on the back of another such indenture of release as within written."] Witness &:c. No. XVII. Of a Hew Tenant. ADMITTANCES. No. XVII. Admittance of a new Tenant to Copyholds. Obs. 1. An admittance to a copyhold is the lord's acceptance of a person into the tenancy. Admittance of a tenant for life is the ad- mittance of the remainderman where there is no custom to the contrary, Barnes v. Cook, 3 Lev. 308 ; Bean of Ely v. Caldecott, 8 Bing. 439. So the admittance of joint tenants is as of one tenant, Kitch. 122 ; 1 Gov. Watk. Copyh. 338. So also, as it should seem, in the ADMITTANCES. 39 case of coparceners, 1 Cov. Watk. 339; Rex v. Lord of (he Manor No. XVII. ofUonsall, 3 B. & C. 173. See Shelfbrd on Copyholds, pp. 101— 0/a new 104, and Suppl. pp. 53—55. *"°" * 2. By the 11 Geo. 4 & 1 Will. 4, c. 65, s. 3, an infant by his guardian or attorney, a feme covert by attorney, and a lunatic by committee, may be admitted to copyholds. If in such cases the fines be not paid -within three montlis after admittance, they may (by s. G) be demanded by a note in -writing, to be signed by the lord of the manor or his steward and left with the guardian of the infant, the feme covert or her husband, and the committee of th& lunatic. 3. Bv the 55 Geo. 3, c. 1S4, an admittance requires a stamp of <£! Stamp, -u'hen the clear yearly value exceeds 20.s'., but where it shall not exceed that value, a 5.s\ stamp, and also a fui-ther progressive duty of £1 for every entire quantity of 1080 words al)ove the first 1080, and when there is more than one admittance on the same piece of vellum or parchment, the proper duty is to be paid in respect to each. The copy of court roll of any admittance requires the same duty. By the act 13 & 14 Vict. c. 97, upon the sale or mortgage of copyhold estates, the stamp duty is reduced to 2s. Qd. upon " any admittance out of court, or the memorandum thereof, or the copy of court roll of any admittance in court," with a progressive duty of 2.?. Qd. for "every entire quantity of 1080 words over and above the first 1080 Avoi'ds." In cases where the admittance is neither upon a sale or mortgage, the stamp duty imposed by the act of 55 Geo. 3, c. 184, is still ])ayable. Manor of F. ) Be it remembered that on the day of in the county of .5 18 {Tenant) of &c. came in his proper person (a) before me A. B. lord \^or " steward"] of the manor of F. aforesaid and prayed to be admitted to all and sin- gular the customary messuages lands tenements and heredita- ments situate lying and being within and parcel of the said manor and all and singular other the premises -with the appurte- nances thereunto belonging to which said premises the said (71) became entitled as eldest son and heir-at-law of (/. H.) deceased late a copyhold or customary tenant of this manor To whom I the said A. B. as lord of the said manor personally granted seisin thereof by the rod (or " To whom the lord of the said manor by me his said steward granted &c.") To hold to him the said (T.) and his heirs for ever by copy of court roll at the will of the lord or lords for the time being [or, if the admittance be hy the (a) Or ill tlie case of an infant, feme covert, or lunatic, "by C. D. of &c. gentleituui liis [w 'Ikt'] {z-uardian [attorney w committee]." Tenant. 40 ADMITTANCES. No. XVII. steward, say in the common form " at the will of the lord"] ac- ofanew cording to the custom of the said manor by the several yearly- rents and services therefore due and of right accustomed And the said (T.) gave to the lord for his fine £ but the fealty of the said ( T. ) was respited (a) And so saving to the lord his right the said (jT.) was admitted tenant to the said premises in manner and form aforesaid. In the ) S. S. A. B. lord [or \ presence of) R. R. " steward"] &c. No.xv,i. NcXVUI. Admittance out Form of Admittance out of Court, hy the Steward, of a Devisee "^ '''"'''• in Fee (h). The manor of | Be it remembered that on the in the county of S day of in the year of our Lord B. N. of &c. came before J. S. steward of the said manor out of court that is to say at his dwelling-house situate &c. and produced and delivered to the said steward a copy of the last will and testament of C. O. late of &c. deceased whereby he the said C. O. devised all his customary or copyhold hereditaments lying within and holden of the said manor by the description of &c. unto the said B.N. his heirs and' assigns for ever accordino- to the custom of the said manor and the said B. N. by virtue of the provisions contained in the Copyhold Act 1841 prayed to be admitted to all and singular the custo- mary or copyhold hereditaments lying within and holden of the said manor so devised to him by the said C. O. as aforesaid to wit to All &c. with their appurtenances (and to which same hereditaments and premises the said C. O. was admitted at a general court held in and for the said manor on the day of ) To which said B.N. the lord of the said manor by the said steward granted seisin thereof by the rod to have and to hold all and singular the said hereditaments and premises with their appurtenances unto the said B. N. and his heirs to Exception. («) Where in the case of an infant, feme covert or lunatic, the fines are not paid on admittance, then omit this clause, and add "aud so saving" &c. (b) See Scriven on Copyholds, p. 523. ad:mittanc£s. 41 be holden of the lord by copy of court roll at the will of the No. XVlii. lord according to the custom of the said manor by fealty suit of Admittance out court the ancient annual rent or rents heriots when they shall happen and other the duties and services therefore due and of right accustomed and so (saving the rights of the lord) the said B. N. is by the said steward admitted tenant thereof and pays to the lord on such his admittance a fine certain of £ and his fealty is respited. J. S. steward. AFFIDAVITS, AFFIRMATIONS, OR DECLARATIONS. 1. Affirmations by Quakers, Mora- G. Affidavits exempt from Stamp vians, and Separatists. Duty or otherwise. 2. Declarations substituted/or Oaths 7. Affidavits in Courts of Common and Affidavits. La^v. 3. Oaths, Sfc, to be tahen in Court. 8. Affidavits in Court of Chancery. 4. Voluntary Oaths abolished. 9. Affidavits in Court of Probate. 5. Voluntary Declaration may be taken. I Sect. 1. By the 3 & 4 Will. 4, c. 49, amending and extending the Affirmations by 8 Geo. 1, c. 6, and 6 Geo. 3, c. 53, Quakers and Moravians are per- Quakers and mitted to make a solemn affirmation or declaration instead of an oath or affidavit in all cases where an oath is required, and falsely affirming is made punishable as perjury. By 3 & 4 Will. 4, c. 82, a similar Separatists, provision is extended to a description of dissenters called Separatists. See 1 & 2 Vict. c. 77. By the Common Law Procedure Act, 1854, Affirmation if any person called as a witness, or requiring or desiring to make an other cases, affidavit or deposition, shall refuse or be unwilling from alleged con- scientious motives to be sworn, the court or judge or other presiding officer or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, may permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, videlicet : — " I A. B. do solemnly sincerely and truly affirm and declare that the taking of any oath is according to my religious belief unlawful and do also solemnly sin- cerely and truly affirm and declare &c.," which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual foim, 17 & 18 Vict. c. 125, s. 20. The last provision is extended to the Court of Probate, 20 & 21 Vict, c. 77, s. 27, and to the Divorce Court, 20 & 21 Vict. c. 85, s. 49. s in 42 AFFIDAVITS. jiffidavits. Declarations substituted for oatlis and affi- davits. Oaths, &c., to be taken in court. Voluntary oaths abolished. Voluntary de- claration may be taken. Affidavits ex- empt from stamp duty or otherwise. Affidavits in Courts of Com- mon Law. Persons making false affirmations are liable to punishment for per- jury, 17 & 18 Vict. c. 125, s. 21 ; 20 & 21 Vict. c. 77, s. 27, c. 85, s. 50. 2. By the 5 & 6 Will. 4, c. 62, provisions are made for abolishing- oaths, affidavits and affirmations; by (s. 2) in all official matters relating to the excise, customs, &c. ; by (s. 9) in the case of church- wardens and sidesmen; by (s. 10) in the case of persons acting in turnpike trusts; by (s. 11) in taking out a patent; by (s. 12) in the case of pawnbrokers ; by (s. 14) in transferring stock. 3. By (s. 7) of the last-mentioned statute, oaths and affirmations are to be administered, taken and made as before in all judicial pro- ceedings in courts, or in any proceedings before magistrates by way of summary conviction. 4. By (s. 13) of the same statute, justices of the peace are not to administer or receive voluntary oaths or affidavits touching matters whereof they have no jurisdiction by statute. 5. The 18th section of the act recites that it may be necessary and proper in many cases, not therein specified, to require confirmation of written insti'uments or allegations or proof of debts, or of the execu- tion of deeds or other matters; and enacts, that any justice of the peace, notary public or other officer by law authorized to administer an oath, may take and receive the declaration of any person voluntarily mak- ino- the same before him, in the form in the schedule to that act annexed, and if any declai'ation so made shall be false or untrue in any material i)articular, the person wilfully making such false declaration shall be deemed guilty of a misdemeanor. By the 12 & 13 Vict. c. lOG, s. 246, bankrupts and the wives of bankrupts are to be examined before commissioners in bankruptcy without being sworn, after making and signing the declaration in the schedule W. to that act annexed. By the 254tb section of that act, ])ersons making false statements in the course of the examination are made liable to the penalties for peijury. 6. By the 55 Geo. 3, c. 184, affidavits not made for the imme- diate purpose of being filed or used in any court of law or equity, are liable to the stamp of 2s. Qd. for every sheet, or piece of paper, parch- ment or vellum, on which the same shall be written or authorized by law. See 4 & 5 Vict. c. 34. Affidavits relating solely to matters in bankruptcy are not liable to any stamp duty, 12 & 13 Vict. c. 103, s. 138. 7. Every affidavit to be used in any cause or civil proceeding in any of the superior courts of common law shall be drawn up in the first person, and shall be divided into paragraphs, and every para- graph shall be numbei-ed consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject. No costs shall be allowed for any affidavit or pai't of an affidavit substantially dc- AFFIDAVITS. 43 parting from this rule, Gen. R. H. T. 1853, No. 2. The addition A ffidavits. and true place of abode of every person makinf^ an affidavit shall be inserted therein, Ibid., Rule 138 ; see Chitty's Q. B., 9th ed., pp. 1512 —1530. 8. Every affidavit which includes an affirmation, to be used in the AtSdavits in Court of Chancery, shall be divided into paragraphs, and every para- chancery. graph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject, 15 & 16 Vict. c. 8G, ss. 37 — G6. All affidavits in Chancery are to be taken and expressed in the first person of the deponent. Any solicitor, party or person filing an affidavit not t iken and expressed in the first person of the deponent is not to be allowed the costs of preparing and filing such affidavit in any taxation of costs ; Gen. Ordei'S, 8th of May, 1845, Nos. 126, 128 r see Smith's Ch. Pr., pp. 407—414, 6th ed. ; Forms of Affidavits in Chancery, Ibid., pp. 93a — 966. The persons formerly stvled Masters Extraordinary in Chancery have ceased to be so stvled, and they and all persons appointed after the 15th of August, 1853, by the Lord Chancellor, to execute like duties in England, are designated " Commissioners to administer Oaths in Chancerv in Enfjland," and to possess and exercise all such powers and discharge all such duties as then appertained to the office of Master Ext)'aordinary in Chancery, by virtue of any statute or order of the Court of Chancery or of the Lord Chancellor, or usage in that behalf or otherwise, 16 & 17 Vict. c. 78, s. 1. The Lord Chancellor from time to time may appoint any ])ersons practising as solicitors within ten miles from Lincoln's Inn Hall, at their respective places of business, to administer oaths and take declarations, affirmations and attestations of honour in Chancery, who are to possess all such other powers and discharge all such other duties as aforesaid, and such persons are styled " London Com- missioners to administer ©aths in Chancery," and are entitled to charge and take a fee of one shilling and sixpence for every oath administered by them, and for every declaration, affirmation or attes- tation of honour taken by them, subject to any order of the Lord Chancellor, varying or annulling the same, 16 k. 17 Vict. c. 78, s. 2. 9. The addition and true place of abode of every person making an Affidavits in affidavit in the Court of Probate is to be inserted therein. In everv i^"""^' "' ^''^* . ' bate. affidavit made by two or more persons, the names of the several persons making it are to be written in the jurat. No affidavit will be admitted in any matter depending in the Court of Probate in the jurat of which there is an interlineation or erasure, A further order has been made, 19th October, 1858, that no affidavit will be admitted in any matter depending in the Court of Probate of which any material j)art is written on an erasure. AVheie an affidavit is made by any person who is blind, or who from his or her signature or otherwise appears to be illiterate, the legistrar [or 44 AFFIDAVITS. Affidavits. district registrar], commissioner, or other person before wljom such affidavit is made, is to state in the jm'at that the affidavit was read in the presence of the party making the same, and that such party seemed perfectly to understand the same ; and also, that the said party made his or her mark or wrote his or her signature in the presence of the registrar [or district registrar^, commissioner, or other person before whom the affidavit was made. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his proctor, solicitor or attorney, or before a clerk of his proctor, solicitor or attorney. Proctors, solicitors or attor- nies, and their clerks respectively, if acting for any other proctors, solicitors or attornies, shall be subject to the rules in respect of taking affidavits which are applicable to those in whose stead they are acting, see Rules for the Principal Registrars, Nos. 46 — 51, and for District Registrars, Nos. 61 —66 ; see similar Rules as to Affidavits for the Court for Divorce and Matrimonial Causes, Nos. 49 — 54. The following further oz-ders, 19th Oct., 1858, have been made : — 1. In every case where an affidavit is required from a subscribing wit- ness to a will or codicil, such subscribing witness shall in such affi- davit depose as to the mode in which the said will or codicil was executed and attested. 2. The draft oaths to lead grants of special or limited probate or administration, with or without the will annexed, are to be transmitted by the district registrar to the registrars of the principal registry in order to their being settled, and no such special or limited o^rant is to be issued until the draft oath to lead the same has been settled by a registrar of the principal registry. The registrars and district registrars respectively of the Court of Probate have full power to administer oaths, and all persons who, on the 11th Jan., 1858, were acting as surrogates of any ecclesiastical court, and any other persons whom thejud'ge of that court shall, under the seal of the court, appoint, shall have power to administer oaths, &c., and the persons so appointed are styled "Commissioners of her Majesty's Court of Probate," 20 & 21 Vict. c. 77, s. 27. No. XIX. Arbitration {Deed of Sub'- mission)^ No. XIX. Affidavit of the Execution of Deed of Submission to Arbitration. Ohs. Before an award can be enforced under 9 & 10 Will. 3, c. 15, the submission must be made a rule of court, for which purpose there must be an affidavit of the execution of the deed of submission by one of the witnesses ; and where there are several parties to the deed, it must be shown that all have executed the deed, Antram v. Chace, AFFIDAVITS. 45 15 East, 209 ; and see B'tddel v. Dowse, 6 B. & C. 255. As to the exemption fi-om tlie stamp duty, see Pref. 6. See post, tit. " Arbi- tration." In the Q. B. [^or oilier court of which the submission is to be made a ruleJ] I A. B. of (fcc. make oath and sav that on the dav of in the year of our Lord 18 I was present and did then see C. D. duly execute the bond [or " agreement " as the case may &e] hereunto annexed marked A. and that the said C. D. did then sion and seal and as his act and deed deliver the said bond in my presence and that the name C. D. set and subscribed thereto is of the proper handwriting of the said CD. and that the name A. B. subscribed to the said bond as the witness thereof is of my proper handwriting. Sworn &c. A. B. No. XIX. Arbitration {Bond of Sub- mission). No. XX. Affidavit of the Execution of Articles of Clerkship {a). Ohs. 1. This affidavit must be made and filed within six months of tlie execution of the articles, and the articles must be registered. If tlie affidavit is not filed within six months, the service will be reckoned from the day of filing the affidavit, unless otherwise ordered by the court, 6 & 7 Vict. c. 73, ss. 8, 9. In the Q. B. [or " C. P." or " Exch. of Pleas."] I A. B, of gentleman make(&) oath and say I. That by articles of clerkship bearing date the day of in the year of our Lord one thousand eight hundred and fifty made between A. A. gentleman one of tlie attornies of her Majesty's Court of Queen's Bench [or " Com- mon Pleas" or " Exchequer of Pleas"] at Westminster of the one part and C. C. of and D. C. of son of the said C. C. of the other part The said D. C. for the con- (a) This affidavit is required by the 6 & 7 Vict. c. 73, ss. 8, 10. (b) Where the articled clerk has graduated at Oxford, Cambridge, Dub- lin, London or Durham, he should join in the above affidavit, or make a sepa- rate one, and state "That I have taken the degree of bachelor of arts [or " bachelor of laws"] in the University of and that I took such degree vitliin si.\ [or "eight"] years next after the day when I was matriculated in the said Uuiversity and that the articles of clerkship bearing date the day of and made between &c. were made within four years next after the day when I took such degree." See 6 & 7 \'ict. c. 73, s. 7. No. XX. Articles of Clerkship, Execution). 46 AFFIDAVITS. No. XX. Articles of Clerkship, (^Execution.) sideration therein mentioned did by and with the consent of the said C. C. put place and bind himself clerk to the said A. A. to serve him in the business profession and practice of an attorney at law [and sohcitor in Chancery] from the day of the date of the said articles for the term of five years thence next ensuing and fully to be complete and ended And which said articles were in due form of law executed by the said A. A. C. C. and D. C. on the day of one thousand eight hundred and fifty [or " on the day of the date thereof"] in my presence and of one F. F. and that the name W. W. set and subscribed to the said articles as a witness to the due execution thereof is my handwriting and that the name F. F. also set and subscribed to the said articles as a witness to the due execution thereof is the proper handwriting of the said F. F. 2. That the said A. A. at the time of the execution of the said articles was and still is duly admitted an attorney of the said Courts of Q. B. C. P. and Exch. and a sohcitor in the said Court of Chancery. [// not an attorney of all the Courts or not a solicitor in Chancery alter this accordingly.'] Sworn this day of 185 Before me A. B. No. XXI. ytusignment Articles, No. XXI. '/ Affidavit of Execution of Assignment of Articles of Clerkship. In the I W. W. of &c. make oath and say — 1. That by an assignment of articles of clerkship bearing date the day of in the year of our Lord one thou- sand eioht hundred and made between A. A. one of the attornies of her Majesty's Court of Queen's Bench Common Pleas and Exchequer of Pleas at Westminster and a solicitor of the High Court of Chancery of the first part C. C. of D. C. {the clerk) son of the said C. C. of the second part and E. F. of gentleman one of the attornies of her Majesty's said Courts and a solicitor in the High Court of Chancery of the third part After reciting certain articles of clerkship bear- ing date the day of one thousand eight hundred and and made between the said A. A. of the one part and the said C. C. and D. C. of the other part the said D. C. did by and with the consent of the said C. C. put place AFFIDAVITS. 47 and bind himself clerk to the said A. A. for the term of five No. XXL years thence next ensuino- and fully to be complete and ended Assignment of . . . Articles. It was witnessed that the said A. A. did at the request of the said C. C. and D. C. assign transfer and set over unto the said E. F. the services of the said D. C. for all the rest residue and remainder then to come and unexpired of the said term of five years And the said D. C. did with the consent of the said C. C. and for the consideration therein mentioned put place and bind himself clerk to the said E. F. to serve him in the profes- sion of an attorney at law and solicitor in Chancery from the day of the date of the said assignment of articles for the re- mainder of the said term and which said assignment of articles was in due form of law executed by the said A. A. C. C, D. C. and E. F. on the day of one thousand eight hundred and 2. And I forther say that I was present on the said day of one thousand eight hundred and and did see the said A. A. C. C. D. C. and E. F. duly sign seal and deliver the said assignment of articles and that the names or signatures A. A. C. C. D. C. and E. F. set and subscribed thereto are in the proper handswriting of the said A. A. C. C. D. C. and E. F. and that the name or signature W. W. written at the foot of the said assignment of articles as a witness attesting the execution thereof is in my own handwriting. Sworn &:c. W. W. No. XXII. Affidavit of Service of Clerkship (a), and of having given the Notices of Admission. Obs. This and the following affidavit are sworn before a judge at chambers. To this affidavit the articles and assignment (if any) must be annexed, with an exhibit indorsed thus : — " These are the articles of clei'kship [and assignment (if any)] referred to in the an- nexed affidavit of A. B., sworn before me the day of 185 " The affidavit of due execution of tlie articles which was filed in the Master's Office within six calendar months of their execution must be procured, and all these documents, together with the exa- miner's cei'tificate, are taken to tlic clerk at the judges' chambers, No. XX I r. Service of Clerkship and Notices, (a) See 6 & 7 Vict. c. 73, s. 1 4. 48 AFFIDAVITS. No. XXII. wl)evcii)3on tlie judge grants his fiat for tlic admission, and the clei'k Service of retains the articles and assignment (if any), and tlie affidavits as to ^''Sicer^ due service and of giving the notices. Wharton's Manual for Arti- !_^!!!:_ j,igj Clerks, p. 664, 8th ed. In the Q. B. I of gentleman make oath and say 1, That I have actually and really served and was employed by of gentleman one of the attornies of her Majesty's Courts of Queen's Bench Common Pleas and Exchequer of Pleas at Westminster and a solicitor of the High Court of Chancery as his clerk in the practice of an attorney and soli- citor from the day of the date of certain articles of clerkship made betv^'een the said and and me this deponent bearing date the day of in the year 18 for the full term of Jive [or " three ^'\ years pursuant to the articles here- unto annexed [where there has been an assignment omit the words in italics and add} until the day of in the year 18 being the full term of years months and days. 2. That I was duly assigned for the remainder of the said term of five years unto of one other of the attornies of her Majesty's Court of Queen's Bench Common Pleas and Exchequer of Pleas at Westminster and a solicitor of the High Court of Chancery and that I have actually and really served and been employed by the said as his clerk in the practice of an attorney and solicitor from the day of the date of certain articles of assignment made between the said and bearing- date the day of in the year 18 being the full term of years months and days pursuant to the said articles of assignment hereunto annexed. If any part of the time have been served with a barrister or special pleader add that by virtue and under the authority of the statute in that case made and provided I have actually and bond fde been and continued as pupil and as such been employed by W. W. of Esq. from the day of 18 to the day of 18 inclusive being a period of months and days and that the said W. W. during the term of such last-mentioned service was a practising barrister [or " a person bona fide practising as a certificated special pleader*'] in England [or "Wales"] and that I have actually and really served and been employed as clerk for the full term of five [or " three"] years pursuant to the said articles of clerkship [and assignment] above mentioned. AFFIDAVITS. 49 3. That I did before the commencement of term now last past enter in the two books kept for that purpose at the chambers of each of the judges of this Honorable Court a notice in writing- purporting that E. D. of whose place [or " places"] of abode [or " service"] for the last preceding twelve months has [or "have"] been as follows [or "follow"] and who is now [or "lately was"] under articles of clerkship to A. B. of at- torney-at-law [and which articles were assigned to F. G. of attorney-at-law] intended to apply in the then next term to be admitted an attorney of her Majesty's Court of Queen's Bench at Westminster and that I did also three days at least previous to the said term leave a like notice with a clerk to the masters of this Honorable Court containing in addition to the particulars stated in the aforesaid other notices the place [or " places"] of abode [or " service"] of me this deponent for the last preceding twelve months. 4. That if the said notices or any or either of them were or was afterwards cancelled or defaced it was done without my privity or consent. Sworn &c. (Signed) No. XXII. Service of Clerkship and Notices. No. XXIII. Affidavit of the Payment of the Stamp Duty. In the Q. B. I of in the county of gentleman make oath and say 1. That the stamp duty of eighty pounds was paid in respect of certain articles of clerkship bearing date the day of 18 and made between of in the county of gentleman one of the attornies of her Majesty's Courts of Queen's Bench Common Pleas and Exchequer at Westminster and a solicitor of the High Court of Chancery of the one part and of in the county of and me this deponent of the other part as appears by the stamp impressed tliereon and that the said articles were duly executed by the respective parties thereto on the day of the date thereof and were duly registered on the day of then next as appears by the certificate of the proper officer indorsed thereon. 2. That the stamp duty of one pound fifteen shillings was VOL. I. E No. XXIII. Articles {Payment of Stamp Duty). 50 AFFIDAVITS. No. XXIII. paid in respect of a certain assignment of the said articles Articles bearing date the day of 18 and made between su'iwp'^Duiy). the said of the first part the said and me this ' deponent of the second part and of in the county of gentleman one other of the attornies of her Majesty's Courts of Queen's Bench Common Pleas and Ex- chequer at Westminster and a solicitor of the High Court of Chancery of the third part as appears by the stamp impressed thereon and that the said assignment was duly executed by the respective parties thereto on the day of the date thereof and was duly registered on the day of then next as appears by the certificate of the proper officer indorsed thereon. Sworn &c. (Signed) No. XXIV. No. XXIV. Bill of Sale Affidavit of Execution of Bill of Sale. (Execution of). ^ .-, r\ Ti ^ In the Q. d. I make oath and say 1 . That I was present on the day of one thou- sand eight hundred and fifty and did see (assignor) who is an auctioneer (a) and resides at execute a certain inden- ture or bill of sale of personal chattels of the said {assignor) bearing date the day of one thousand eight hundred and fifty and made between the said {assignor) of the one part and {assignee) of &c. of the other part a true copy of which said indenture or bill of sale and of every schedule or inventory thereto annexed or therein referred to and of every attestation of the execution thereof is hereunto annexed and that the said {assignor) did then in my presence seal and as his act and deed deliver the said indenture or bill of sale and that the same was made or given by the said (assignor) to the said {assignee) on the day of one thousand eight hundred and fifty 2. And I further say that the name or signature written (a) Under the Act 17 & 18 Vict. c. 36, the occupation of the attesting witness, as well as that of the assignor, should dulj^ be described in the affi- davit on registry, and an attornej', or an attorney's clerk, long known as such, is not duly described merely by the term " gentleman," without the mention of his profession, Tuton v. Samoner, 27 Law J., Exch. 293. See Allen V. Thompson, 25 L. J., Exch. 249; 1 Hurl. & N. 15. AFFIDAVITS. 51 at the foot of the said indenture or bill of sale is of the proper handwriting of the said {assignor) and that the name or signature subscribed to the said indenture or bill of sale as the attesting witness to the execution thereof is my own handwriting and that I am an attorney at law and reside at 3. And I further say that the execution of the said indenture or bill of sale was witnessed by Sworn No. XXV. Affidavit for Order to enter Satisfaction on Registry of Bill of Sale. In the I of in the of make oath and say 1 . That the debt or sum of for which who was then an auctioneer and resided at in the of executed a certain indenture or bill of sale of personal chattels of the said bearing date the day of one thousand eight hundred and and made between the said of the one part and of the other part a true copy of which said indenture or bill of sale was on the day of one thousand eight hundred and filed with the officer acting as the clerk of the dockets and judgments in the Court of Queen's Bench pursuant to the statute in that case made and provided hath been fully paid and satisfied by the above named to the above named 2. That I was present on the day of one thou- sand eight hundred and and did see attorney for the above named sign the consent to an order in- dorsed on the summons hereunto annexed to show cause why a memorandum of satisfaction of the aforesaid debt or sum of should not be entered on the registry of the said inden- ture or bill of sale. 3. That the name set and subscribed to the said con- sent is in the proper handwriting of the said Sworn at the day of 18 Before me No. XXIV. Bill of Sale {Execution of). If attested by deponent only, state that fact ; if by another witness also, insert his name, residence and occupation. No. XXV. Bill of Sale {Satisfaction of). e2 52 AFFIDAVITS. No. XXVI. Judgment Debt {^Payment of). No. XXVI. Affidavit of Payment of Judgment Debt. In the C. P. Between [parties to action]. of in the of make oath and say I 1. That the two several sums of for debt and for costs for which judgment was signed in this cause on the day of one thousand eight hundred and and registered with the Senior Master of tlie Court of Common Pleas pur- suant to the statute in that case made and provided charging the estate of the said defendant have been fully paid and satisfied by the above-named defendant to the above- named plaintiff. 2. That I was present on the day of one thousand eight hundred and fifty and did see attorney for the above-named plaintiff sign the consent to an order endorsed on the summons hereunto annexed to show cause why a memorandum of satisfaction of the aforesaid judgment should not be entered on the registry. 3. That the name set and subscribed to the said consent is in the proper handwriting of the said Sworn at this day of 185 Before me No. XXVII. Certificate {verifying). Contents of the affidavit. No. XXVII. Affidavit veiifying Certificate of Acknowledgment made hj a MaiTied Woman. Ohs. 1. By R. G. H. T. 4 Will. 4, 1834, revoking and amending the Rules of Michaelmas Term, 1833, the following affidavit, except where the acknowledgment is taken elsewhere than in England, Wales, or Berwick-upon-Tweed, is directed to be made by some practising attorney or solicitor of one of the Courts at Westminster, or of one of the Counties Palatine of Lancaster or Durham, and in all cases it shall be deposed, in addition to the verification of the said certificate, that the deponent [or if more than one person join in the affidavit, " that one or more of the deponents"] knew the person or persons making such acknowledgment, and that at the time of making such acknowledgment the person or persons making the same was or were of full age and competent understanding : and that one at least of the commissioners taking such acknowledgment, to the best of his knowledge and belief, is not in any manner interested in the transaction AFFIDAVITS. 53 giving occasion for the taking of such acknowledgment, or concerned No. XXVII. tlierein as attorney, solicitor, or agent, or as clerk to any attorney, Certificaie solicitor, or agent, so intei'ested or concerned ; and that the names and — ^'"^"J'J"'^)- residences of the said commissioners, and also the place or places "where such acknowledgment or acknowledgments are taken, shall be set forth in such affidavit ; and that previously to such acknowledg- ment being taken, the deponent had inquired of such married woman [or if more than one, " of each such married women"] whether she intended to give up her interest in the estate to be passed, and also the answer given thereto ; and where any such married woman, in answer to such inquiry, declares that she intends to give up her interest with- out any provision, the deponent shall state that he has no reason to doubt the truth of such declaration, and verily believes the same to be true. And where any provision has been agreed to be made, the deponent shall state that the same has been made by deed or writing, or if not actually made before, that the terms of the intended provi- sion have been reduced into writin"'; which deed or writing he verily believes has been produced to the said judge [" master," or " commissioners"]. 2. And it is hereby further ordered, that every affidavit Affidavit must shall state the parish or several parishes, or place or several places, ^^^^^ parish or , , ••1-111 • 1 . places and ana the county or counties, m which the several premises, Avherein county. any such married woman appears to be interested, shall by deed be described to be situate. 3. And it is hereby further ordered, that the affidavit shall Form of affi- be in the form hereunto annexed, subject to such variations as the "^^"^■ circumstances of the case render necessary, or such affidavit may be made, where it is found convenient, by one of the said commissioners, with such variations in the form thereof as sliall be necessary in that behalf As to alienation by married women, see 3 & 4 Will. 4, c. 74, ss. 77-91 ; 8 & 9 Vict. c. 106, ss. 6, 7; 20 & 21 Vict. c. 57; Shel- ford's Real Prop. Stat. pp. 377—413, 6th ed. 4. Affidavits of this description do not require to be stamped ; see Stamp and 4 & 5 Vict. c. 34. The fee for an acknowledgment of a married ^^'^^■ woman before a judge at chambers is lO.s., Order M. T. 1852, 1 Ell. & Bl. 261 ; and before a county court judge 1/., 19 & 20 Vict. c. 108, sched. C. In the Common Pleas. * A. B. (a) of &c. in the county of gentleman one of the attornies [^or " solicitors"] of the Court of maketh oath and (o) Where more than one join in the affidavit, "A. 13. of &c. in the county of \Jiere state trudr, profcsmm or cdUiiKj,'] jinil C. I^. of in the county of gentleman one of tlie attornies [or 'solicitors'] of the Court of Sf'verally maketh oath and say and first this deponent A. IJ. for him- eelf maketh oath and saith that he knows M. the wife of R. L." 54 AFFIDAVITS. No. XXVII. salth that he knows M. the wife of R. L. (a) in the certificate Certificate hcreiuito annexed mentioned and that the acknowledgment — ^'^^' ^"'^ ' therein mentioned was made by the said M. L. and the certifi- cate signed by the judge [or "master" or "A. B. of &c. and C. D. of &c, the commissioners in the said certificate men- tioned"] on the day and in the year therein mentioned at in the comity of in the presence of this deponent and that at tlie time of making such acknowledgment the said M. L. was of full age and competent understanding and that the said M. L. knew the said acknowledgment was intended to pass her estate in the premises respecting which such acknowledgment was made (b) And this deponent further saith that previous to the said M. L. (c) making the said acknowledgment he this de- ponent inquired of the said M. L. whether she intended to give up her interest in the estates in respect of which such acknow- ledgment was taken without having any provision made for her in lieu of or in return for or in consequence of her so giving up her interest in such estates And that in answer to such in- quiry the said M. L, (d) declared that she did intend to give up her interest in the said estates without having any provision made for her in lieu of or in return for or in consequence of her so giving up such her interest of which declaration of the said M. L. (e) this deponent has no reason to doubt the truth and verily believes the same to be true (/) A nd lastly this deponent saith that it appears by the deed acknowledged by the said M. L. (a) If more than one married woman, "and L. the wife of R. S." {b) When the acknowledgment is not taken by a judge or master, add "^ncZthis deponent further saith that to the best of this deponent's know- ledge and belief neither of the said commissioners is [or ' tlie said A. B.' or 'the said C. D. one of the said commissioners is not'] in anj' manner inte- rested in the transaction giving occasion for such acknowledgment or con- cerned therein as attorney solicitor or agent or as clerk to any attorney solicitor or agent so interested or concerned." (c) If more than one married woman, say, "the said M. L. or L. S. making this acknowledgment he this deponent inquired of each of them the said M. and L. whether she" &c. {d) Or "each of them the said M.-.L. and L. S. declared" &c. (e) Or "of each of them the said M. L. and L. S." (/■) Or "declared that a provision was to be made for her in consequence of lier giving up such her interest in the said estates And this deponent fur- ther saith that before her acknowledgment was so taken he was satisfied and does now verily believe that such provision has been made by deed or writing [or ' that the terms thereof have been reduced into writing'] And that such deed or writing has been produced to the said Judge [or 'Master' w 'Com- missioners']." AFFIDAVITS. 55 that the premises wherein she is stated to be interested are No. XXVII. described to be in the parish or place [or " parishes or places"] of CerCificatc in the county [or " counties"] of &:c. [as the case mai/ be]. See other forms of affidavits, Shelford's Real Prop. Stat. App. pp. xi. — XV. 6tli ed. No. XXVIII. Ncxxviii. jlffidavii of the Execution of the Memorial of a Deed by one of Eiecution of the Witnesses. Ohs. 1. Tliis affidavit is required by the 2 & 3 Ann. c. 4, for the Required by West Riding of Yorkshire; 5 & 6 Ann. c. 35, for the East Riding; J^^^f ^"''^'y 7 Ann. c. 20, for Middlesex ; and 8 Geo. 2, c. 6, for the North Riding of Yorkshire. By the 5 & 6 Will. 4, c. 62, the execution of a deed or will may be proved by a declaration instead of an affidavit ; see Pref. s. 5, ayite, p. 42. 2. As to whether this affidavit requires a stamp, see Pref. s. 6. A. B. [a witness to the execution of the memorial and of the deed memorializecl] of in the county of maketh oath and saith that he was present and did see the indenture bearing date &c. referred to in the memorial hereunto annexed duly executed by C. D. {grantor) [or E. F. {grantee) ] of in the county of one of the parties to the same inden- ture And this deponent further saith that he was present and did see the memorial hereunto annexed duly signed and sealed by the said C. D. [or E, P.] And that the names of this de- ponent and of [other witnesses to the memorial] in the county of set and subscribed to the said memorial as the wit- nesses to the execution thereof by the said C. D. [or E. F.] are of the respective proper handwriting of this deponent and of the said [other witnesses] [Deponent A. B.] Sworn at the public office Southampton Buildings the day of Before me G. H. IN O. A.A.1A.. nT I'l'T-v No. WIX. Declaration of the Identity of Parcels. Lh-utiiii of I A. B. do solemnly and sincerely declare as follows That 1 am of the age of years and upwards and have resided Parcels 56 AFFIDAVITS. No. XXIX. Jdenlltii of Parcels. ill the parish of for thirty years last past and that I well know the situation extent boundaries and occupation of the lands of in the said parish and that the same were for years or thereabouts in the occupation of 2. That the field called was formerly two fields called respectively and and divided from each other by a quick hedge running from north to south about years ago And that the field or meadow ground situated &c. and called by the name of was formerly and about years ago arable land when the same was laid down into pasture and hath ever since continued so. 3. That the said piece of ground called is as I well remember and verily believe the same piece of ground as was formerly called and as aforesaid And that the said piece of ground called is the same piece of ground as was formerly meadow land &c. &:c. {as the case may he). And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of an act made and passed in the sixth year of his late Majesty King William the Fourth intituled " An Act to repeal an Act of the present session of Parliament intituled An Act for the more effectual Abolition of Oaths and Affirmations taken and made in various Departments of the State and to substitute Declara- tions in lieu thereof and for the more entire Suppression of Voluntary and Extrajudicial Oaths and Affidavits and to make other Provisions for the Abolition of unnecessary Oaths." The said A. B. declared to the truth of the above declaration at in the said county of the day of 185 A. B. Before me CD. No. XXX. Possession of an Estate. No. XXX. Declaration of long Possession of an Estate as Evidence of Ownership. I A. B. do sincerely and solemnly declare that I am and have been for the space of years last \_or " have for the space of years past resided at &:c." as the case may ie] the bailiff or land steward of of &c. and that durinar the AFFIDAVITS. 57 whole of the said time (except only at short intervals) the said hath resided in the dwelling house situated [or " called"] in the said parish and occupied and enjoyed the lands and hereditaments thereunto adjoining without any interruption or claim by or from any other person or persons to the same or to the rents or profits thereof to my knowledge or belief and I have heard and believe that the said and his late father deceased have been in the possession and quiet enjoyment of the said premises for the space of years and upwards and I have heard and believe that the said took possession of the said lands &c. as heir-at-law of the said his said late father deceased [or " as purchaser thereof from of &:c." as the case may he'] and further that to the best of my know- ledge and behef such possession and enjoyment as aforesaid was adverse to and without any express assent or permission of or by C. D. of &c. or of any person claiming under him. And I make &c. [see last precedent, p. 56]. The said A. B. declared &;c. See ante, p. 56. A. B. No. XXX. Possession of ait Estate. No. XXXI. Affidavit verifying Account of Personal Estate. In Chancery. [ Title of Cause.'] We A. B. of &c. C. D. of &c. and E. F. of&c. the above-named defendants severally make oath and say as follows 1. We say that we have according to the best of our know- ledge remembrance information and belief set forth in the first schedule hereunder written a full true and particular account and inventory of the personal estate of or to which G. H. the testator in the decree [or " order"] dated made in this cause, named or referred to and who died on the day of 185 was possessed or entitled at the time of his death and not BY HIM SPECIFICALLY BEQUd^THED. 2. And we further say that save what is set forth in the said first schedule AND WHAT IS BY THE SAID TESTATOR SPECIFICALLY BE- QUEATHED the said testator was not to the best of our knowled<>e information or belief at the time of liis death possessed of or entitled to any debt or sum of money due to him from us or any No. XXXI. Accouvt of Personal Estate. Til CSC words to be inserted only when the direction is to take an account of personal estate not spc rificalhj In'- qucotlivit. 58 AFFIDAVITS. No. XXXI. or either of us on any account whatsoever nor to any leasehold Account of or Other personal estate goods chattels or effects in possession ersona ^^ reversion absolutely or contingently or otherwise howsoever. 3. And we further say that the said testator's funeral expenses have been paid and that the same consist of the items of dis- bursement numbered and in the account herein- after referred to [or if not paid it should he so stated with the amount due and to whom due], 4. And we further say that we have in the account marked A. now produced and shown to us according to the best of our knowledge information and belief set forth a full true and parti- cular account of the personal estate of the said testator not by This should HIM SPECIFICALLY BEQUEATHED whicli lias comc to our hands or nccord ^yith the ^^ ^^^^ hands of any or either of us or to the hands of any person Uruer ttiiecting .-' •' ' the account. or persons by our or any or either of our order or for our or any or either of our use with the times when the names of the per- sons from whom and on what account the same has been re- ceived and also a like account of the disbursements allowances and payments made by us or any or either of us in respect of or on account of the said testator's funeral expenses debts and per- sonal estate together with the times when the names of the per- sons to whom and the purposes for which the same were dis- bursed allowed or paid. 5. And we each speaking positively for himself and to the best of his knowledge and belief as to other persons further say that save and except as appears in the said account marked A. we have not nor hath any or either of us nor have nor hath any other person or persons by our or any or either of our order or for our or any or either of our use possessed received or got in any part of the said testator's personal estate nor any money in respect thereof and that the said account marked A. does not contain any item of disbursement allowance or payment other than such as has actually been disbursed paid or allowed on the account aforesaid. 6. And we further say that to the best of our knowledge in- formation and belief the personal estate of the said testator now outstanding or undisposed of cons^ts of the particulars set forth in the second schedule hereunder written, 7. And we further say that save what is set forth in the said second schedule there is not to the best of our knowledge infor- mation or belief any part of the said testator's personal estate now outstanding or undisposed of. AFFIDAVITS. , 59 The first schedule above referred to. ^°' ^^^^- . Account of 1. 50/. cash m tlie house. Personal Estate. 2. \00l. cash at the testator's bankers Messrs. A. and B. 3. lOOOZ. £3 per Cent. Bank Annuities standing in the tes- tator's name. 4. lOZ. due from John James for half-year's rent of house at to Michaehnas 1857. 5. 32/. 65. 8c?. balance remaining due from John Thomas on account of half-year's rent of farm at to Michael- mas 1857. 6. 300/. a debt due from Samuel Jones on a bond with interest from at per cent. 7. A leasehold house situate at held under a lease for a term of which will expire on at a rent of /. a year, underlet to James Evans for a term which w^ill expire on at a rent of 50/. a year. 8. 25/. half a year's rent due from the said James Evans to The second schedule above referred to. [ The particulars to be set forth in the same manner as above.'] Sworn &c. No. XXXII. A^i ' -n No. XXXII. Affidavit as to Real Estate, and verifying Account of Rents and Account of Rents Profits. "Z^"' Estate. In Chancery. {^Title of Cause.'] We A. B. of &c. C. b. of &c. and E. F. of « s'>o\^" j" I'le ' . ■- -■ athdavit that in the presence of the said testator. tin- testator (Signed) C. D. ''.'"y i"'^''»lf. ^ to ' tlie same as lus Sworn at on the day of 18 before me final signature [person authorized to administer oaths under the act, 20 ^ 21 Vict. c. 11, s. 27, ante, p. 44]. F 2 68 AFFIDAVITS. No.XLII. Inland Revenue- N.B. — Forms for the two leasehold clauses to be printed on tlie back of the affidavit. No. XLII. Affidavit for the Commissioners of Inland Revenue. — For Executors. In her Majesty's Court of Probate. The Principal Registry [or " The District Registry of "]. In the goods of A. B. deceased. The day of 18 I C. D. («) make oath [or " solemnly affirm"] that I am one of the executors [or " the executor"] named in the last will and testament (b) of the said A. B. late of deceased that the said deceased died on or about the day of in the year of our Lord one thousand eight hundred and at (c) [if in the District Registry add, and that the said deceased at the time of his death had a fixed place of abode within the said district of ] and that the personal estate and effects of the said deceased which he any way died possessed of or entitled to and for or in respect of which a probate of the said will is to be granted exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or persons and not beneficially [if any leaseholds insert this clause : — " Including the leasehold estate or estates for years of the said deceased whether absolute or determinable on a life or lives"] and without deducting anything on account of the debts due and owino; from the said deceased are under the value of pounds to the best of my knowledge information and belief [if no leaseholds insert this clause: — "And I [or 'we'] lastly make oath that the said deceased was not possessed of or entitled to any leasehold estate or estates for years whether absolute or determinable on a life or lives to the best of my [or ' our'] knowledge information and belief"]. (Signed) C. D. Sworn at on the day of before me [person authorized to administer oaths wider the act, 20 Sf 21 Vict. c. 77, s. 27, ante, p. 44]. (a) Insert the names, residences, and titles, or profession of the persons making the affidavit. (b) Insert codicils, if anj^. (c) Insert place of death, or set forth the reason why the same cannot be furnished. AFFIDAVITS. 69 No. XLIII. No. XLIII. Affidavit for the Commissioners of Li land Revenue. — For Admi- Inland Revenue, nistrators with the Will annexed. In her Majesty's Court of Probate. The Principal Registry [or " The District Registry of "j. In the goods of A. B. deceased. The day of 18 I C. D. of (a) the party applying for administration with the will (&) annexed of the personal estate and effects of A. B. late of deceased make oath [or " solemnly affirm"] that the said deceased died on or about the day of one thou- sand eight hundred and at (c) and that the personal estate and effects of the said deceased which he any way died possessed of or entitled to and for or in respect of which letters of administration with the said will (c?) annexed are to be granted exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or persons and N.B.— Forms not beneficially [if leaseholds insert this clause : — " Indud'mfr jof the uvo ./ u./ >-iVAvini^ leasehold the leasehold estate or estates for years of the said deceased clauses to be whether absolute or determinable on a life or lives"] and with- back d'the''^ out deducting anything on account of the debts due and owino- affidavit. from the said deceased are under the value of pounds to the best of my knowledge information and belief [if no lease- holds insert this clause :—" And I [or ' we'] lastly make oath that the said deceased was not possessed of or entitled to any lease- hold estate or estates for years whether absolute or determinable on a life or lives to the best of my [or 'our'] knowledge informa- tion and belief"]. (Signed) C. D. Sworn at on the day of before me [persons authorized to administer oaths under the act]. (a) Insert the names, residences, and titles, or professions of the persons making the affidavit. (/j) Insert codicils, if any. (f) Insert the place of death, or set forth the reason wliy the same cannot be furnished. (d) See note (a), supra. 70 AFFIDAVITS. No. XLIV. Inland Rivenue. N.B.— Forms for the two leasehold clauses to be printed at the back of the affidavit. No. XLIV. Affidavit for the Comynissioners of Inland Revenue. Administrator's. -For In her Majesty's Court of Probate. The Principal Registry \or " The District Registry of "J. In the goods of A. B. deceased. The day of 18 I C. D. of (a) the party applying for letters of adminis- tration of the personal estate and effects of the said A. B. late of make oath \or " solemnly affirm"] and say as follows That the said deceased died on or about the day of one thousand eight hundred and at (i) [if in the District Registry add, and that the said deceased at the time of his death had a fixed place of abode within the said district of ] and that the personal estate and effects of the said deceased which he any way died possessed of or entitled to and for or in respect of which letters of administration are to be granted exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person and persons and not hene^cioWy \_if leaseliolds insert this clause: — " Including the leasehold estate or estates for years of the said deceased whether absolute or determinable on a life or lives"] and without deducting anything on account of the debts due and owing from the said deceased are under the value of pounds to the best of my knowledge information and belief [if no leaseholds insert this clause: — '' And I [or 'we'] lastly make oath that the said deceased was not possessed of or entitled to any leasehold estate or estates for years whether absolute or determinable on a life or lives to the best of my [or ' our'] know- ledge information and belief"]. (Signed) C. D. Sworn at on the day of before me [person authorized to administer oaths under the act, 20 ^" 21 Vict. c. 11, s. 27, ante, p. 44]. (a) Insert the names, residences, titles or profession of the persons making the affidavit. (b) Insert place of death, or set forth the reason why the same cannot be furnished. AFFIDAVITS. 71 No. XLV. Oath for Executor. •^ Xo. XLV. In her Majesty's Court of Probate. The Principal Registry [or Executor' sOati,. " The District Registry of "]. In the goods of A. B. deceased. I C. D. of in the county of make oath and say [or " solemnly affirm"] that I believe this paper writing [or "these paper writings'"] hereto annexed to contain the true and original last will and testament [or " last will and testament with codicils"] of A. B. late of in the county of deceased and that I am the sole executor [or "one of the executors"] therein Each testa- named [or " executor according to the tenor thereof," "executor tTbTmaffd'' during life," " executrix during widowhood," or as the case may ^y 'l'^ persons be] and that I will faithfully administer the personal estate and persTnTdmi/ effects of the said testator by paying his just debts and the ">«[e"»g the legacies contained in his will [or " will and codicils"] so far as the same shall thereto extend and the law bind me that I will exhibit an inventory and render an account of my executorship whenever required by law so to do that the testator died at in the county of on the day of 18 [if in the District Registry add, and that the said deceased at the time of his death had a fixed place of abode within the said district of ] and that the whole of the personal estate and effects of the said testator does not amount in value to the sum of pounds to the best of my [or " our"] knowledge informa- tion and belief. (Signed) C. D. Sworn at this day of 18 before me E. F. No. XLVI. No. XLVr. Oath for Administrators with the Will. Achmnistmior's In her Majesty's Court of Probate. The Principal Registry [or " The District Registry of "j. In the goods of A. B. deceased. I C. D. of in the county of make oath and say [or " solemnly affirm"] that I believe this paper writing [or "these paper writings"] hereunto armexed to contain the true and original last will and testament [or " the last will and testament Oath, with Will. 72 AFFIDAVITS. No. XLVI. Administrator's Oath, with Will Each testa- mentary paper to be marked by the persons sworn and the person admi- nistering tlie oath. with codicils] of A. B. late of in the county of deceased and that the executor therein named is dead without having taken probate thereof [or as the fact may be] and that 1 am the residuary legatee in trust named therein [or as the fact may be] and that I will faithfully administer the personal estate and effects of the said deceased according to the tenor of his will [or "will and codicils"] by paying his just debts and the legacies contained in his will [or " will and codicils"] and distributing the residue of his estate according to law that I will exhibit an inventory and render an account of my administration whenever required by law so to do that the testator died at on the day of 18 [_if in the District Registry add, and that the said deceased at the time of his death had a fixed place of abode within the said district of ] and that the whole of the personal estate and effects of the said deceased does not amount in value to the sum of pounds to the best of my knowledge information and belief. (Signed) C. D. Sworn at this day of 18 before me No. XLVII. Administrator' s Oath. No. XLVII. Oath for Administrators. In her Majesty's Court of Probate. The Principal Registry [or " The District Registry of "]. In the goods of A. B. deceased. I C. D. of in the county of make oath and say [or " solemnly affirm"] that A. B. late of deceased died a bachelor without parent brother or sister uncle or aunt nephew or niece and intestate and that I am the lawful cousin gei-man and one of the next of kin of the said deceased [this must be altered in accordance with the circumstances of the case] that I will faithfully administer the personal estate and effects of the said deceased by paying his just debts and distributing the residue of his estate according to law that I will exhibit an in- ventory and render an account of my administration whenever required by law so to do that the said deceased died at on the day of 18 [if in the District Registry add, ^x\& that the said deceased at the time of his death had a fixed place of abode within the said district of ] and that the whole of the personal estate and effects of the said deceased does not AFFIDAVITS. 73 amount in value to the sum of knowledoe information and belief. Sworn at th IS day of pounds to the best of my No. XLVII. Adinhiistrator's Oath. (Signed) A. B. • 18 before me No. XLVIII. Justification of Sio^eties. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B. deceased. The day of 18 We C. D. of and E. F. of jointly and severally make oath that we are the proposed sureties on behalf of G. H. the intended administrator of all and singular the personal estate and effects of the said A, B. late of deceased in the penal sum of pounds for his faithful administration of the said personal estate and effects of the said deceased and I the said CD, for myself make oath that I am after payment of all my just debts well and truly worth in money and effects the sum of and I the said E. F. for myself make oath that I am after payment of all my just debts well and truly worth in money and effects the sum of pounds Same day the said C. D. and E. F. were duly sworn to the truth of this affidavit Before me [person authorized to administer oatJis under the act, 20 ^ 21 Vict. c. 11, s. 27, ante, p. 44]. No. XLVIII. Justijicatioii of Sureties. No. XLIX. Affidavit of Handwriting. In her Majesty's Court of Probate. The Principal Registry [or " The District Registry of "1. I A. B. of in the county of make oath [or " solemnly affirm"] that I knew and was well acquainted with C. D. late of in the county of deceased who died on the day of at [or if in District Registry add, and had at the time of his death a fixed place of abode at No. XLIX. Handwriting. 74 AFFIDAVITS. No. XLIX. within the said district of ] for many years before and Handwriting, down to the time of his death and that during such period I have frequently seen him write and also subscribe his name to writinos whereby I have become well acquainted with his manner and character of handwriting and subscription and havin<'- now with care and attention perused and inspected the paper writing hereunto annexed purporting to be and contain the last will and testament of the said deceased beginning thus " " ending thus " " and being subscribed thus (a) *' C. D." I further make oath that I verily and in my conscience believe the whole body series and contents of the said will together with the names "C D." subscribed thereto as aforesaid to be of the true and proper handwriting and subscription of the said " C. D." deceased. On the day of 18 the said A. B. vvas duly sworn at to the truth of this affidavit [or " made this solemn affirmation"] Before me E. F. [person authorized to administer oaths under the act, 20 ^ 21 Vict. c. 11, s. 27, ante, p. 44]. Finding. No. L. No. L. Condition and Affidavit of Plight and Condition and Finding. In her Majesty's Court of Probate. District Registry of I A. B. of in the county of make oath [or " solemnly affirm"] that I am the sole executor named in the paper writing now^ hereunto annexed purporting to be and contain the last will and testament of E. F. late of in the county of deceased (who died on the day of at [or if in District Registry add, and had at the time of his death a fixed place of abode at within the said district of ] ) the said will bearing date the day of beginning thus " " ending thus " " and being subscribed thus " C. D." and having viewed and perused the said will and particularly observed that [here recite the finding of the will and the various obliterations, interlineations, erasures and alterations {if any), and the general plight and condition of the will or any other matters (a) Include in these recitals the date of the will. AFFIDAVITS. /O requiring to he accounted for, and clearly trace the will from the No. L. possession of the deceased in his lifeime up to the time of making ^°"pi^^'^l'^^"^ this affidavit'] I the deponent lastly make oath that the same is ^^ — now in all respects in the same state plight and condition as when found \_or as the case may he\ On the day of 18 the said A. B. was duly • sworn at to the truth of this affidavit [or " made this solemn affirmation before me"] I..T. l^pcrson authorized to administer oaths under the ac ]. No. LI. No. LI. Affidavit of Search {b). Search for Will. In her Majesty's Court of Probate. The Principal Registry [or " The District Registry of "J. I A. B. of in the county of make oath [or "solemnly affirm"] that I am the sole executor named in the paper writing hereunto annexed purporting to be and contain the last will and testament of C. D. late of deceased who died on the day ot in the year 18 at [or if in District Registry add, and had at the time of his death a fixed place of abode at within the said district of ] the said will beginning thus " " ending thus " In witness whereof I have hereunto set my hand this day of in the year of our Lord one thousand eight hundred and fifty-four" [or as the case may he] and being thus subscribed " C. D." And referring particularly to the fact that the blank spaces originally left in the said will for the insertion of the day and month of the date thereof have never been supplied [or " that the said will is without date," or as the case may he] I further make oath [or (ft)Tl)isform "solemnly affirm"] that I have made inquiry of E. F. the soli- f.'JfSTtt citor of the said deceased and that I have also made diligent and shown by affi- carefixl search in all places where he the said deceased usually neither the kept his papers of moment and concern and in his depositories subscribed wit- . , • 1 1 1 1 ncsses Mor any m order to ascertam whether he had or had not left any other other person will but that I have been unable to discover any sucii will And I |,';" '^^'jj^sc ^° lastly make oath [or " solemnly afiirm"] that I verily believe the time ot the said deceased died without having left any will codicil or testa- the will!" ° 76 AFFIDAVITS. No. LI. mentaiy paper whatever other than the said will by me hereiii- Searchfor Will , before deposed of. A. B. On the day of 18 the said A. B. was duly sworn at to the truth of this affidavit [or " made this solemn affirmation"] before me G. H. [peison authorized to administer oaths under the act, 20 Sf 21 Vict. c. 11, s. 27, ante, p. 44]. No. LIT. No. LII. Of a Creditor. Affidavit of a Creditor on applying for Letters of Adminis- tration where the Executor is abroad. Obs. By the 38 Geo. 3, c. 87, s. 2, it is provided, that at the end of twelve calendar months after the death of a testator, if the executor is out of the jurisdiction of the courts, special administration may be granted upon the application of any creditor, next of kin or legatee, grounded upon an affidavit to the effect following. The provisions of the above act are extended to all cases where letters of administration have been gi-anted, and the person to whom administration shall have been granted shall be out of the jurisdiction of the courts of iaw and equity, 20 & 21 Vict. c. 77, s. 74. 1 A. B. of &€. do swear that there is due and owing to me on bond [or "simple contract" or "upon account unsettled," as the case may hajjpen to be'] (in which latter case he will swear to the best of his belief only) from the estate and effects of late of deceased to the best of his belief the sum of £ and that C. B. the only executor capable of acting and to whom pro- bate has been granted has departed this kingdom and is now out of the jurisdiction of her Majesty's courts of law and equity and that this deponent is desirous of (a) exhibiting a bill in her Majesty's Court of for the purpose of being paid his demand out of the assets of the said testator. (Deponent.) (a) Where it is a next of kin or legatee "of administering to the estate and effects of iScc. for the purpose of obtaining his share of the same" [or *' of obtaining the legacy given to him by the said will"]. AGREEMENTS. 77 AGREEMENTS. 1. Definition of an Agreement. 2. Parties to an Agreement. 3. Subjects of an Agreement. 4. Form of an Agreement. Deeds and Parol Agreements. 5. Signing an Agreement. 6. Pecitals in an Agreement. 7. Consideration for the Agree- ment. 8. Co7istruction of Agreements at Laio and in Equity. 9. Penalty Clause. 10. Stamps on Agreements. 1 1 . Different kinds of Agreements. Sect. 1, An agreement, in its most extensive sense, is defined to be Definition of the consent of two or more persons in constituting or dissolving some ^" agreement, legal obligation, and in that sense includes every species of assurance; but, in a more limited acceptation of the term, it implies any memo- randum, articles or minutes, entered into between two or more per- sons, either to serve as a deed of itself, or as preparatory to some more formal instrument, 1 Bac. Ab. 67. A contract or agreement not under seal may be defined to be an engagement entered into between two or more persons, whereby, in consideration of something done or to be done by the party or parties on one side, the party or parties on the other promise to do or to omit to do some act. Com. Dig. Agree- ment (A. 1) ; Bac. Ab. Agreements, Co. Litt. 47 b j Chitty on Contr. 8, 5th edit. 2. No one can enter into an agreement who has not discretion, or Parties to an the power of using it ; therefore idiots, lunatics, infants, married agreement, women, and persons under any duress or restraint, are in general in- capable of contracting, Perk. 12, 16; 4 Co. 124; 5 ib. 119; Sheph. Touch. 39; Harris v. Lee, 1 P. Wms. 483; 1 Atk. 409; 1 Fonb. Eq. 68. But the law allows infants to make contracts, with power to vacate them if they prove prejudicial; and a contract by an infant for necessaries is absolutely binding, Co. Litt. 172 a; 2 Sid. 109 ; 1 Lev. 86; Truman v. Hurst, 1 T. R. 41 ; see Chitty on Contr. pp. 136 — 148, 5th edit. And by the 9 Geo. 4, c. 14, s. 5, agreements or pro- mises made in infancy must be confirmed by writing when the party comes of full age. By the 1 Geo. 1, c. 10, for the maintenance of poor clergy, agreements entered into by guardians for infants and idiots were to be valid ; but by 11 Geo, 4 & 1 Will. 4, c. 65, s. 26, such agreements may now be made by guardians in case of infants, with the approbation of tiie Court of Chancery, and in the case of lunatics by their committees, with the consent of the Lord Chancellor. And by 6 & 7 Will. 4, c. 115, s. 1, guardians, committees and hus- bands are empowered to enter into agreements for making inclosures for infants, lunatics and femes covert. In many cases a married woman is competent to contract as if she were sole in respect of her 78 AGREEMENTS. Agreements. Subjects of an agreement. Form of an agreement. Deeds. Parol agree- ments. separate estate, Norton v. Turvill, 2 P. Wms. 144 ; Grighi/ v. Cox, 1 Ves. 517 ; 1 Foiib. Eq. 91. The executors and administrators of a party are usually named in an agreement ; but this is not necessary in order to bind his assets, as his representatives are, by intendments of law, included in his person, Ui/de v. Skinner, 2 P. Wms. 270; Wills V. Murray, 4 Exch. 865. But the word '' heirs" must not be omitted when the real estate of the party is intended to be bound ; Plowd. 439 ; 2 Saund. 136. See Wms. Executors, P. IV. B. II. ch. 1, s. 1. 3. Generally speaking, every kind of right or interest, whether of a real, personal, or mixed nature, may be the subject of an agreement; but it is requisite that it be within the power of the party contracting. And it must be such as is not forbidden by the rules of religion and morahty, or by the laws of the land. An agreement may either be executed at the beginning, as where money is paid for the thing agreed for, or it may be executory, where it is to be done at some future time. 4. Every agreement, to be effectual, ought to be full and complete, and so framed as to express with clearness and precision the stipula- tions and terms of the contract. No contract for the sale of any goods, wares, or merchandize for the price of 10/. sterling or upwards is good, except the buyer shall accept part of the goods so sold, and actually receive the same or give some earnest to bind the bargain or in part of payment, or unless some note or memorandum in writing of the bargain be made and signed by the parties to be charged by such contract, or their agents thereunto law- fully authorized, 29 Car. 2, c. 3, s. 17. The last provision is now extended to all contracts for the sale of goods of the value of lOZ. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such con- tract be actually made, procured, or provided, or fit or ready for de- livery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery, 9 Geo. 4, c. 14, s. 7. Agreements need not be under both the hand and seal of the parties. A letter takes an agreement out of the statute, not onlv in considera- tion of marriage, but also in respect to lands, Ford v. Conipton, 2 B. C. C. 32. Where agreements are under the hand and seal of the parties, they are, as to the subject-matter, sometimes called special contracts or specialties, and, as to the instrument, deeds; but where they are verbal, or only in writing under the signature of the parties, they are termed parol agreements, or absolutely agreements. The former kind of agreements are binding on the heir of the parties if named, but the latter on the personal representatives only, 2 Wms. Saund. 7, n. ; 4 ib. 136, Wilson v. Knuhleyj, 7 E. 128. By the 3 & 4 Will. 4, c. 42, s. 3, actions of debt or covenant on bonds, or other specialties, must be brought within twenty years after cause of AGREEMENTS. 79 action arises ; actions upon parol agreements must be brought within Agreements. six years after the cause of action arises, J()?ics v. Pope, 1 Wms. Saund. 37. An agreement by parol cannot dispense with, aUer, or control a deed, Sellers v. Bcckfovd, 8 Taunt. 31, S. C. ; 1 B. Moore, 400. 5. Signing is, by the Statute of Frauds, one requisite to the yali- Signing an dity of an agreement; but as a signature by one of the parties will be agreement, binding only on the party signing, it is important for both parties to sign, in order to give full efficacy to the contract, 2 Ch. Ca. 164 ; Champion v. Plumnier, 1 N. Rep. 254; Cooper v. tSmith, 15 East, 103 ; Phillimore v. Barry, 1 Campb. 513 ; Symmona v. Want, 2 Stark. 371. The signature of an authorized agent of an agreement in writinir, even tliouuh not authorized in writin<:c, but verballv only, will bind his principal. Morthck v. BuUer,\{) Ves. 311 ; WiUon v. Hart, 7 Taunt. 295; Clinan v. Cooke, Sch. & Lef. 31, 32. A cross made by one who is not able to write, may be a sufficient signing if it be sufficiently identified, Baker v. Deriixj, 8 Ad. & E. 94; and if a man be in the habit of printing or stamping his name, he will be con- sidered to have signed by his printed name, 1 Sugd. Pow. 6th edit. 30; Suunderson v. Jackson, 2 B. & P. 238; Sckneider \. Norris, 2 M. & S. 286. Where an agreement is signed by an attorney or authorized agent, he must sign in the name of his principal, not in his own name,2 Ld. Raym. 1418 ; White v. Cuyler, 6 T. R. 176 ; Wilks V. Back, 2 East, 142 ; Coles v. Trecothick, 9 Ves. 234. The signa- tui'e required by the statute need not be in any jjarticular part of the instrument, 1 Sugd. V. & P. 10th edit. 180 et seq. But it has been held, that inserting the name in the middle of a writing cannot have the effect of a legal signature, Hawkins v. Holmes, 1 P. Wms. 770; Stokes V. Moore, 1 Cox, 219. As to the attestation or signing in the Attestation of presence of witnesses, this is necessary for preserving the evidence of *"' ^g^'^ment. the deed, 1 Lev. 25 ; 1 Sid. 37. And in regard to deeds made in pursuance of powers, where the power requii'cs attestation, a deed will be void at law, where there is no mention of such attestation, 1 Sudg. Pow. 6th edit. 302. See post, tit. Attestations. 6. Recitals are not an essential part of a deed or agreement, but Recitals in an they are nevertheless proper in some cases, as they serve to explain agreement, the meaning of the witnessing part, and show the full intention of the parties, and the state of the property proposed to be dealt with. Any important variance between the I'ecitals and the witnessing part of an instrument would be a reason for suspicion that the instrument was open to question on the ground of fraud or mistake. In the case of a release (not a conveyance) the recitals are of still greater importance, as the witnessing part will not be held to extend to matters which the recitals do not show an intention to comprise. See Chitty on Con- tracts, pp. 83 — 87, 5th edit. 7. Some consideration or other is absolutely necessary to support Consideration 80 AGREEMENTS, for an agree ment. Construction of agreements in equity and at law. Agreements, an agreement, otherwise it is held to be a nudum factum, and void athiw, Plowd. 808; Dy. 336; Jones v. Ashhurnhmn, 4 East, 455; Parker v. BaijUss, 2 B. & P. 73. So if the consideration be the doing that which the law prohibits, or Avhich is offensive to decency or good morals, it will be void, Martyn v. Blithman, Yelv. 197. But any reasonable consideration, however small, will be deemed sufficient, Dy. 272 ; 1 Roll. Abr. 22, 23 ; Williamson v. Clements, 1 Taunt. 523. And if the agreement be under seal, no consideration need appear on the face of the deed ; but parol agreements are not allowed to be conclusive evidence of a sufficient consideration, Pel- lans V. 3Iierop, 3 Burr. 1670 ; Rann v. Unijhes, cited 7 T. R. 350, n. ; 1 Fonbl. Eq. 342, 347. See Broom's Legal Maxims, pp. 669-690, 2nd ed, 8. The construction of deeds and agreements is the same in equity as at law, but the performance lequired in a court of equity and that of law is different. At law, a covenant must be strictly and litei'ally performed ; in equity, it must be really and substantially performed, Eaton V. Lyon, 3 Ves. 692. Equity will relieve against a strict per- formance upon equitable circumstances, where there is no wilful neglect and misconduct, and will also enforce the performance of fair and reasonable conti-acts, even although they be by parol, where the party w^ants the thing in specie, 2 Freem. 268 ; 2 Vern. 455 ; Gunter V. JIalsey, Amb. 586; Errington v. Annesley,2 B. C. C. 443. But if the contract can be and is intended to be compensated by damages, courts of equity will not interpose, 1 P. Wms. 570; Capper v. Harris, Bunb. 135. See now stat. 21 & 22 Vict. c. 27, giving power to the Court of Chancery to award damages in certain cases. Penalty clause. 9. In contracts of an executory kind, a clause is usually inserted, stipulating for the payment of a sum of money, either by way of penalty or for liquidated or ascertained damages, in case of violating any of the articles of the contract by either party. The latter mode, by which the parties themselves fix the amount of damages, is to be pre- ferred, as it prevents the necessity of a reference to a jury for that purpose, Astley v. Welden, 2 Bos. & Pull. 346. But the intention of the parties must be clearly expressed, for the mention of the word "penalty," or "penal sum," precludes the court from considering it as liquidated damages. Smith v. Dickenson, 2 B. & P. 630 ; Astley V. Welden, uh. sup. See Chitty on Contracts, pp. 763 — 768, 5th ed. It is, however, worthy of observation, that, notwithstanding the above clause, equity will compel a specific performance of a contract where redress in the shape of damages, or otherwise, is an inadequate remedy, Hohson v. Trevor, 2 P. Wms. 191 ; Goring v. Nash, 3 Atk. 186. 10. Agreement, or any minute or memorandum of agreement made in England or Ireland, under hand only, or made in Scotland without any clause of registration (not charged otherwise than under the head Stamps on agreements, AGREEMENTS. 81 agreement in the schedule to the Act 55 Geo. 3, c. 184, nor expressly Agreements. exempted from all stamp duty), where the matter thereof shall be of the value of 20/. or upwaids, whether the same shall be only evi- dence of a contract, or obligatory upon the parties from its being a written instrument, together with every schedule, receipt, or other matter put or endorsed thereon or annexed thereto, the stamp of 2s. 6cL And where the same shall contain 2160 words or upwards, then for every entire quantity of 1080 words contained therein over and above the first 1080 words, a further progressive duty of 2s. 6d. 13 & 14 Vict. c. 97, Sched. The Stat. 55 Geo. 3, c. 184, Sched. part 1, tit. Agreement, contains Exemptions the following exemptions from all stamp duties : — ^''°"^ stamps. Memorandum or agreement for granting a lease or tack at rack- rent of any messuage, land or tenement under the yearly rent of five pounds. Memorandum or agreement for the hire of any labourer, artificer, manufacturer or menial servant. Memorandum, letter or agreement made for or relating to the sale of any goods, wares or merchandize. Memorandum or ao:reement made between the master and mariners of any ship or vessel for wages, on any voyage coastwise from port to port in Great Britain. Letters containing any agreement (not before exempted) in respect of any merchandize or evidence of such an agreement which shall pass by the post between merchants or other persons carrying on trade or commerce in Great Britain, and residing and actually being at the time of sending such letters at the distance of fifty miles from each other. A memorandum or other writing made necessary by the 9 Geo. 4, c. 14, is exempt from stamps, 9 Geo. 4, c. 14, s. 8. Contracts to serve as artificers, servants, &c. in the colonies are exempted from stamp duty, 17 & 18 Vict. c. 83, s. 21. An agreement may be stamped within fourteen days after it has Stamping been made or entered into. If not carried to be stamped within that 3"e'^w^''|is- time, a penalty of \0l. will be payable, besides the duty, 7 & 8 Vict. c. 21, s. 5. Provision is now made for stamping documents unstamped, or in- sufficiently stamped, produced as evidence at the trial of any cause, 17 & 18 Vict. c. 125, ss. 28, 29. 11. The above remarks will suffice to show the distinction between Different i'' trators and assigns covenant and agree with the said {B.) his executors administrators and assigns that he the said (O.) his heirs executors or administrators shall and will well and truly pay or cause to be paid unto the said {B.) his executors &c. the sum of £ of lawful money of Great Britain in manner fol- lowing that is to say the sum of £ part thereof at the lay- ing of the chamber floors the sum of £ other part thereof at the covering in and the sum of £ in full for the work when completely finished And that he the said ( O.) his &c. shall to find ma- and will at his or their own proper costs and charges find and *'^'"'^'^' provide all the stone brick and timber and other materials neces- sary for the building of the said house Provided always and it and allow for is hereby agreed and declared by and between the parties hereto alterations. That in case the said (O.) his executors &c. shall direct any more to be done in or about the said buildings and premises than what is contained in the said schedule hereunder written that then and in such case the said (O.) his executors administrators or assigns shall pay or cause to be paid to the said {B.) his exe- cutors or administrators so much money as such extra work shall be worth at a reasonable valuation And lastly it is hereby Arbitration P O clause. 84 -AGREEMENTS, No. LIII. Building a House. Penal clause. agreed by and between the said parties to these presents That if any dispute or difference shall happen to arise between them tonchino- the said house and buildings or the money to be paid for the same according to the admeasurement and value thereof in case the same shall be admeasured or valued or touching or concerning any alteration or addition or any other matter or thing whatsoever relating to the work hereby contracted to be done That then and in such case it shall be left to the determi- nation and award of three indifferent persons one to be named by the said (B.) his &c. and the other by the said {().) his &:c. and the third by the said two persons so to be named imme- diately after such dispute shall arise And the said parties hereto do hereby covenant and agree with and to each other that they the said parties shall and will severally stand to abide perform and keep the award and determination of the said three persons so as the same be made in writing under the hands and seals of the said arbitrators within one calendar month next after such reference Jnd{a) for the due observance of the stipulations by them mutually entered into each of them the said {B.) and (O.) by these presents doth bind himself unto the other of them in the penal sum of £ by way of liquidated damages In witness whereof the said {B.) and (O.) have set their hands the day and year first above written. {Builder) {Owner) No. LIV. Building a Ship. Covenant to build, and let to hire when finished. No. LIV. Agreement for Building a Ship. Articles &c. between {Shipbuilder) of &c. of the one part and {Merchant) of &c. of the other part Witness that the said {Builder) shall and will at his own proper costs and charges in all things build or cause to be built within the space of calendar months from the date hereof one good ship of not less than tons and not exceeding tons burthen with such materials and to be furnished and provided in such manner as in the schedule No. I. hereunto annexed is more particularly set forth And when the said ship is completed he the said {B.) will let the same to him the said {Merchant) for the said several (a) As to this penal clause, see Agreements, Pref. s. 9. AGREEMENTS. 85 voyages at such freight and demurrage and upon such terms as No. LIV. in schedule No. II. hereunto annexed are particularly mentioned buil ding a Ship . And for that purpose the said ship shall at the proper costs and charges of the said (B.) be from time to time repaired refitted and provided in all things according to the terms hereinbefore mentioned and according to the usage and customs of merchants And the said {B.) or other managing owner and the commander thereof shall and will from voyage to voyage enter into a charter- party to the said (J/.) upon the terms in the same schedule mentioned and in such charter-parties such further stipulations and provisions as are necessary and reasonable shall from time to time be inserted Atid the said ship until she has performed Ship not to be such several voyages shall not be employed upon any other ojjj'l'wise em- service or upon any other occasion whatever except in the ser- vice of the said (31.) without the consent in writing of him the said (31.) And that during such time as the said ship is in the Owner will service of the said (31.) the said (B.) his executors administrators ^?"*"o'»^ *« and assigns and all and every other the commanders owners and officers and crew of the said ship shall conform themselves in the equipment of the said ship or otherwise to all such lawful and reasonable orders and instructions as shall be eiven from time to time by the said {3f.) his executors administrators or assigns Provided always that in case of breach of these agree- ments aforesaid or any of them by or on the part of the said {B.) it shall be lawful for the said {31.) his executors &c. the said ship wholly to reject from his service and also to recover satisfaction for the damages occasioned by any such breach of agreement or to seek any other such remedies as he or they shall think fit In witness whereof Sec. Schedules referred to — No. I. Dimensions of the ship and inventory of stores. II. The charter-party. No. LV. No. LV. Agreement between a 3Tanufacturer or other Person with a Car- Carrier, rier, to explain and restrict the Provisions of the 1 1 Geo. 4 ^ 1 Will. 4, c. 68. Obs. By the Carriers' Act, 11 Geo. 4 & 1 Will. 4, c. 6S, the com- mon law liability of carriers is much qualified ; but as by s. G of that 86 AGREEMENTS. No. LV. Carrier. act it is provided that it should not affect any special contracts, it is frequently necessary to enter into express agreements suited to the particular circumstances of the case. By the 8 & 9 Vict. c. 42, canal companies are authorized to carry as common carriers upon their le- spective canals, rivers or navigations, and to sue and be sued as carriers ; and the provisions in force relating to common carriers are made to apply to such companies. By " The Railway Clauses Consolidation Act, 1845," 8 & 9 Vict. c. 20, s. 89, it is enacted, that nothing in that act or in the special act should extend to charge or make liable the company further or in any other case than where stage-coach pro- prietors and common carriers would be liable, nor should extend in any degree to deprive the company of any protection or privilege which common carriers or stage-coach proprietors might be entitled to, but on the contrary, the company should at all times be entitled to the benefit of every such protection and privilege. See Shelford on Railways, pp. 482—493, 3rd ed. Memorandum of an Agreement entered into the day of in the year of our Lord between (Carrier) of Sec. Agreement to of the one part and (Manufacturer &c.) of the other part Wit- of goodsf ^'"'^ nesseth That he the said (C.) for himself his executors, &c. doth hereby agree vi^ith the said (M.) that he the said (C.) shall and w^ill at all times take charge of and convey all goods of vidiatever description which shall be offered and committed to the charge of him the said (C.) by the said (M.) and will truly and safely deliver the same to any persons to whom they may be addressed whether the goods be specified or enumerated or otherwise and whatever may be the value of such goods provided the same do not exceed the sum of £ and if exceeding that value then after the rate of £ per centum for the alleged excess in value And the said (M.) doth hereby agree with the said ( C.) that he the said (M.) his executors &:c. shall and will from time to time as and when any goods are committed by him the said (M. ) to the charge of the said (C.) pay or cause to be paid to the said (C.) his executors &:c. such per-centage as aforesaid together with the usual charge for the same in respect of weight and distance. In ivitness, &c. except above a certain value. No. LVI. Coachmaker. Coachmaker agrees to pro- vide coach, No. LVI. Agreement for the Hire of a Coach or Chariot. Memorandum Sec. That the said (Coachmaker) doth agree with the said (Employer) that he the said (C.) his executors and AGREEMENTS. 87 administrators shall and will at his or their own proper charge No. LVI. on or before the day of next provide (a) a new hand- Coachmaker. some well-built chariot with a o;ood hammercloth and harness for one pair of horses with all other accoutrements to the reasonable good liking of the said {E.) for the period of determinable nevertheless as hereinafter mentioned after the rate of for each month And that he the said (C) his executors &:c. shall and to keep the and will at their own proper charge keep the said chariot and ^^""^ ^" repair, harness &c. in good and proper order save and except any sashes or glass which may be accidentally or otherwise broken while the said chariot is in the use of the said {E.) {b) And in con- Employer sideration of the premises the said {E.) doth hereby agree that gt^'^uYatc/hfre he the said {E.) his executors administrators or assigns shall and will on the day of in each month during the subsist- ence of this agreement well and truly pay or cause to be paid unto the said (C) his executors administrators or assigns the sum of £ as aforesaid Provided cdicays that in case the Dissolution of said {E.) depart this life during the subsistence of these presents ^g'^'^ement. the same shall be considered as at an end and determined on the expiration of next thereafter and that the said {E.) or his executors &c. shall not be obliged to pay more than the propor- tion of the month which may then have elapsed And it is here- by further agreed by and between the said parties that on either of them the said {E.) or (C) giving to the other days' {or months') notice of his intention to put an end to this agreement the same shall after the expiration of the said notice absolutely cease and be void. In witness &c. Agreement to accept a Composition— see post, Composition. (a) If the agreement be with a livery-stable-keeper for the hire of a pair of horses, say — "Two good strong gentle and active horses well matched and a good skilful and civil driver to tlie reasonable good liking of the siiid {E.) and in case the said driver or horses be disabled then he the said (Z.) shall provide other like horses or driver as aforesaid." {h) If it be so agreed, say — " Or except such damages as may happen to the said chariot by over- turning or other violence, whether under the care of the coachman or ser- vant of the said (£)." 88 AGREEMENTS. No. LVII. Copartnership. Parties. Terms of agree- ment. Deeds of co- partnership to be executed. Covenants and clauses to be inserted in the deed. No. LVII. Agreement to enter into Copartnership at some future Time. Ohs. 1. It seems that a court of equity will decree the specific per- formance of a contract for a copartnership, provided it is to continue for a definite period, Buxton v. Luter, 3 Atk. 383 ; Anon. 2 Ves. 629; but not otherwise, Walker v. Harris, 1 Anstr. 245. See Colly er on Part., eh. 2, s. 2. 2. In an agreement of this kind should be inserted all conditions and covenants which are not usual ; as, for instance, in regard to sur- vivorship, since the good-will of a profession, if not of a trade, will survive on the death of either party, Farr v. Pearce, 3 Madd. 74. This ought therefore to be provided for by express stipulation. (As to copartnership, see further. Copartnership.) Articles Sec. Between A. B. of &c. of the one part and C. D. of kc. of the other part Witness That the said A. B. doth here- by agree to take the said C. D. into copartnership with him in his trade or business of for the space of seven years and to assign to him a moiety of his interest in the house vi^herein the said trade is now carried on the said copartnership to com- mence from the day of next ensuing on the terms and conditions following that is to say That the said C. D. shall pay to the said A. B. on or before the said day of the sum of £ as a premium or fee to be admitted into the said copartnership That the stock in the said trade shall be valued on or before the day of by two indifferent persons one to be chosen by the said A. B. and the other by the said C. D. and in case they cannot agree by an umpire to be chosen by the said arbitrators That the said C. D. shall advance a sum equal to half the amount of the said valuation to be paid within the space of calendar months after the commence- ment of the said copartnership That a proper deed or instru- ment in writing shall be prepared within the space of six weeks from the date of these presents at the joint expense of the said parties in which deed it shall be provided and declared That the capital stock shall consist of £ and that if either party be minded to bring in a further capital the said joint stock shall be liable to make good the same with interest after the rate of five pounds per centum per annum That neither of the parties shall at any time during the continuance of the said term be concerned in any other trade That all the insurable part of the stock shall be insured at the expense of the joint trade That no apprentices AGREEMENTS. 89 shall be taken nor servants dismissed or hired without the mutual No. LVII. consent of the said parties That the premiums with appren- Copartnership. tices shall be added to the joint stock That books of accounts shall be kept in the usual manner and be open to the inspection of the said parties lliat true and just accounts of the joint trade shall be made half yearly and the surplus proceeds be divided equally and proportionally between them That neither of the parties shall apply the partnership monies to his own use nor buy and sell accept and give bills compound and release debts nor do any other thing to affect the joint trade without the con- sent of the other That if either of the said parties shall happen to die before the expiration of the said term no benefit of sur- vivorship shall accrue to or be taken by the other of them T7iat disputes shall be referred to arbitration and all other covenants provisoes and stipulations clauses and agreements shall be in- serted as are usual in deeds of copartnership of a like kind. In witness &c. Agreement for Dissolution of Copartnership, — see post^ Copartnership (Dissolution). No. LVIII. No. LVIII. Agreement by a Person to pay a Debt contracted during Infancy. Debtor and Obs. No action can be maintained for charging any person upon (infant). any promise made after full age to pay any debt contracted during infancy, or upon any ratification of any promise or simple contract made during infancy, unless such promise or ratification be made by some writing, signed by the party to be charged therewith, 9 Geo. 4, c. 14, s. 5. Any writing made necessary by that act is exempt from stamp duty, Ibid. s. 8. I A. B. of &c. being now of full age do hereby promise and agree with and to (C) of &c. that in consideration -of the debt contracted with him during my infancy being a just and bond fide debt I will pay him the sum of £ the amount thereof after the expiration of months from the day of Witness my hand A. B. 90 AGREEMENTS. No. LIX. Exchange. Recital of title. Agreement to make ex- change ; to furnish ab- stract ; to execute conveyances mutual ; No. LIX. Agreement for an ilxchange. Obs. As to the nature of an exchange, see Exchange. As to the stamps, see Agreement, Pref. s. 10. Articles of Sec. Between A. B. of S. of the one part and C. D. of Sec. of the other part Whereas the said A. B. is seised to him and his heirs (a) of certain lands situated at in the county of and the said C. D. is also in like manner seised to him and his heirs of certain messuages or tenement and land situate &c. And whereas the said A. B. and C. D. have agreed to make an exchange of their respective premises and hereditaments {b) Now these presents witness That each of them the said A. B. and C. D. so far as relates to his own acts and deeds doth hereby for himself and his respective heirs executors and administrators agree with the other of them in manner following that is to say that each of them the said A. B. and C. D. shall and will on or before the day of next at his own expense make or deliver or cause to be made and delivered unto the other of them a full complete and perfect abstract of his title to the said premises to be exchanged (c) And if the counsel of the respective parties shall be of opinion that each of them the said A. B. and C. D. has a good title to his respective pre- mises that each of them the said A. B. and CD. shall and will on or before the day of now next ensuing execute at the expense of the other of them such convey- ances and assurances together with all necessary covenants as shall by their respective counsel be reasonably advised the said CD. likewise receiving the sum of £ for equality of (a) If the premises are copyhold, recite '' Whereas the said A. B. is seised to him and his heirs according to the custom of the manor of of certain copyhold or customary lands situate &c. And the said C. D. is also seised of &c." If leasehold, recite " Whereas the said A. B. is possessed of a certain messuage or tenement and premises situate &c. and held by a certain inden- ture of lease bearing date on or about the day of 18 and made between [lessor] of the one part and said A. B. of the other part subject to the rents and covenants therein contained on the part of tlie lessee or tenant to be paid done and performed And the said C. D. is also &c." (h) If the premises are leasehold, omit the words "hereditaments." ((?) If the premises are leasehold, say " but in this abstract the said A. B. or C. D. shall not be required to show his lessor's title. See Agreements for a Lease, s. 6. AGREEMENTS. 91 exchange (a) And lastly that each of the said parties shall be No. LIX. entitled to the rents and profits of the said premises so to be to Exchange. them respectively assured from the day of now next to receive ensuing up to which time all taxes rates and other charges what- ''^"'^' ^^' soever payable in respect to the said premises shall be paid by the party conveying the same In witness &:c. Agreement for Freight— see post, Shipping. No. LX. ^ .^ No. LX. Agreement to relinquish a Business in Favour of Another. Good-will (Business). Obs. 1. The good-will of a business has been frequently recognized A good-will is in courts of equity as a valuable interest, Xennedi/ v. Lee, 3 Mer. 441 ; pr'^perty. Cook v. Collitigriclgp, Jac. 607 ; and so under certain circumstances in courts of law, Ex parte Farlow, 2 B. & Ad. 341 ; S. P., R. v. Hungerfurd M. Company, 4 B. & Ad. 592 ; but not where the profits arise from confidence in the personal skill of the party, as in the case of surgeons or attornies, Farr v. Pearce, 3 Madd. 78; Spirer V. James, cited Collyer on Part. 82. See article 7 Jur. Part II. pp. 358, 366. There cannot be a decree for the specific per- formance of a contract to purchase a good-will alone, unconnected with business premises, by reason of the uncertainty of the subject matter. But when a good-will is entirely or mainly annexed to the premises, and the contract is for the sale of the premises and good- will, there is not the slightest ground for doubt that such a contract is a fit matter for a decree in a suit for specific performance, Darhey V. Whitaker, 4 Drew. 139, 140, Per Kindersley, V. C. (a) Where sum to be paid for equality of exchange is not previously Provision as to settled tlie following may be inserted " And it is hereby agreed that it shall eijuaJity of ex- be referred to E. F. of &c. and G. H. of &.c. and in case of their differing in '^'*^"°^- opinion to an umpire to be chosen by tliem to decide and determine whotlier any and what sum of money by way of equality of exchange shall be paid by either or wiiich of the said parties hereto to the other of them And each of the said parties hereto agrees to pay such sum of money by way of equality of exchange to the other of them as the said referees or umpire shall order and direct and it is hereby agreed that the costs and charges of the said referees or umpire shall be equally paid by the parties hereto" See post, tit. Exchange, Pref. 92 AGREEMENTS. No. LX. Good- will {Business). Stamp. T. S. agrees to relinquish her business ; to grant lease of premises. I. N. W. agrees to take busi- ness, fixtures, &c., to accept lease. 2. In Lyhurn v. Wai-rington an agreement to give up a trade was held not to require an ad valorem stamp, not being considered as dis- tinct substantive property ; but an agreement for the sale of goods, as well as good-will for a given sum, requires a stamp, South v. Finch, 3 Bing. N. C. 506 ; S. C. 4 Scott, 293 ; see further, post, Assign- ment of Good- Will. Memorandam of an agreement made this day of &c. Between I. S, of &:c. widow and relict of W, S, late of &c. de- ceased of the first part I. N. W. of &c. of the second part and {Surety) of &c. of the third part as follow The said I. S. in con- sideration of the agreement hereinafter contained on the part of the said I.N. W. doth hereby for herself her executors and ad- ministrators agree with the said I. N. W. his executors and ad- ministrators That she the said I. S. shall and will on the day of next relinquish the business of lately used and carried on by the said W. S. her late husband deceased and now continued to be carried on by the said I. S. at aforesaid to in and in favour of the said I. N. W. And also in due form of law effectually transfer and assign to him the said I. N. W. all the stock fixtures utensils and implements in trade used in and belonoino- to the said business at such prices and under such valuation and settlement as hereinafter mentioned And also shall and will grant a lease to him the said I. N. W. of the dwell- inghouse shops warehouse and premises wherein the said I. S. now resides and wherein the said business is now carried on for the term of years from the day of in- stant at or under the yearly rent of payable quarterly clear of all taxes and deductions whatsoever And the said I. N. W. doth hereby for himself his executors and adminis- trators agree wath the said I. S. her executors and adminis- trators to accept and take the said stock fixtures utensils and implements in trade and pay and secure to be paid in manner as hereinafter expressed such a sum of money for such stock fix- tures utensils and implements in trade and also the good-will of the said business as the same shall be valued at and agreed on by two arbitrators to be chosen one by the said I. S. and the other by the said I. N. W. or in case they shall dis- agree in making such valuation Then such a sum of money as shall be settled by a third person to be chosen as umpire by them the said arbitrators And also that he the said I.N. W. shall and wall accept and take a lease of the said dw ellinghouse shop and premises upon the terms aforesaid and at his own AGREEMENTS. 93 expense execute the lease and a counterpart thereof in which No. LX. said lease shall be contained all usual and proper covenants and pood-wiii ' ' . {Business). particularly a covenant for payment of rent as hereinbefore mentioned And shall and will on the day of next pav or &c. unto the said I. S. one third part of the amount of such valuation as aforesaid And shall and will give the joint and several bond of himself and the said (S.) as a security for the payment of the remainder of the sum at which the said stock &c. shall be valued by four equal successive annual instalments the first annual instalment to be paid on the day of 18 together with interest after the ra^te of 51. per cent, per annum upon the remainder of the sum at which the said stock &c. shall be valued as aforesaid So that upon payment of each annual instalment of the principal the whole of the interest then due shall be paid to the said I, S. And the said (>S.) in consider- ation of the premises and as surety for and on behalf of the said I. N. W. his son shall and will pay to the said I. S, the sum so agreed to be paid by the said I. N. W. as the third part of the amount of such valuation as aforesaid on the said day of instant And also shall and will join with the said I.N. W, in such security as aforesaid for the payment of the residue of the sum at which such stock fixtures utensils implements and good- will shall be valued with interest as aforesaid In witness &c. AGREEMENTS TO GUARANTEE. 1 . Guarantee must be in Writing. Exceptions to the Rule. 2. Consideration. 3. Consideration need not appear by Writing. 4. Guarantee to or for a Firm to cease upon a change in the Firm, except in Special Cases. 5. Representation of Character. 6. Stamp. Sect. 1. By the 4th section of the Statute of Frauds an agreement Guarantee to pay the debt of another, must, in order to ffive a cause of action, '"'.'^' '"^ '" be in writing;, Saunders v. Waliefield, 4 B. & Aid. 595 ; but if a party ^ "' ./ ? ' r J ExcL'])tioiis to actually make payments for another, a rosponsibilitv may be inferred the rule. from the circumstances, without any promise in writing, Shaw v. Woodcock, 7 B. & C. 73; and if a party admits a binding guarantee by paying money into court, on a count charging him with it, it will not be neccssaj-y to prove a written pi-omise, Middleton v. Brewer, 1 Peake, 15. See Chitty on Contracts, pp. 446 -452, 5th ed. 94 AGREEMENTS. Agreements. Consideration must appear. Consideration need not ap- pear by writing. Guarantee to or for a firm to cease upon a change in the firm, except in special cases. Representa- tions of cha- racter. Stamp. 2. Formerly the writing must contain the consideration for the promise as well as the promise itself, Saunders y .Wakefield, ub. sup. ; therefore a promise to pay for goods to be supplied in future was good, because the supplying the goods was the consideration; but a promise to pay for goods already furnished was bad for want of such consider- ation, Wood V. Benson, 2 Cr. & J. 94 ; S. C. 2 Tyrw. 74 ; unless it was stated that the thing done in favour of a third party had been done at the guarantor's request, Payne v. Wilson, 7 B. & C. 423. 3. No special promise to be made by any person after the 29th July, 1856, to answer for the debt, defeult or miscarriage of another per- son, being in writing, and signed by the party to be charged there- with, or by some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to char"<^^- by so doing they discourage fraud and perjury, which it was the object of the statute to prevent, 1 Eq. Ca, Ab. 19; 2 Ch. Ca. 135; 1 Vern. 151 ; 2 Freem. 268. A delivery and taking possession may be a sufficient part performance of an agreement for a lease to ex- clude a defence founded on the Statute of Frauds, Pain v. Coombs, 1 De G. & J. 34. A mandamus will not be granted under 17 & 18 Vict. c. 125, s. 68, commanding the defendant to prepare a lease in accordance with an agreement to grant one, Benson v. Paul, 6 El. & Bl. 273. 5. Agreements for a lease should be clear and explicit on all Agreements material points. This is so much the more important as it has been ex^Hch" ^^ expressly decided, that nothing can be added by parol to an agree- ment which is reduced into writing, 1 Sugd. V. & P. 10th ed. 218. Where an agreement omits to specify the term or number of years for which the lease is to be granted, or if the rent be not specified, or the time when the term is to commence is omitted, or there is no mention respecting the payment of taxes, no parol evidence can be adduced to supply the omission, Clinan v. Cool/e, 1 Sch. & Lef. 22; Woollam V, Uearn, 7 Vcs. 221; Pym v. Dlarkhurne, 3 Ves. 34; Rich V. Jackson, 4 B. C. C. 514; The Marquis I'ownsend v. Stan- groom, 6 Ves. 334, n. So in an agreement for a building lease, the nature of the building must be specified, or the agreement cannot be enforced, Moseley v. Virgin, 3 Ves. 184. 6. A covenant against assigning or under-letting is not deemed Covenants not a usual covenant, and must therefore be expressly stipulated in the '''^^^'S"- contract, if it is intended to be inserted in the lease, Henderson v. Hay, 3 B. C. C. 632 ; Veie v. Loveden, 12 Ves. 179 ; Church v. Brown, 15 Ves. 258. So under a covenant to repair, a lessee will be To repair, liable to rebuild if a house is burnt down, unless the clause be added, "damage by fire or tempest or other inevitable accidents excepted," VOL. I. Ij 98 AGREEMENTS. For a Lease. Bullock V. Dommitt, 6 T. R. 650; Pym V. Blachhurne,^ Ves. 34. j^ .^ ^ usual to insert a covenant for insurance by tlie lessee, Avhich 1 o pay rent. ... obviates this question ; but a tenant vrill still be liable under his covenant to pay rent, although the house is burnt down, unless it be stipulated in the contract that there should be a- suspension of rent in case of accidents by fire, All. 27; Monk v. Cooper, 2 Stra. 703; Belfour v. Weston, 1 T. R. 312 ; Baker v. Ilulzayfel, 4 Taunt. 45 ; Holzapfel V. Baker, 18 Ves. 115. And the tenant has no equity to compel his landlord to expend the money received from an insurance office in rebuilding, Leeda v. Cheetham, 1 Sim. 146; his only remedy in that case being to give notice to quit, Pindar v. Ainslet/, cited 1 T. R. 312; Byni y. Bhtckburne, 3 Ves. 34. A tenant holding pre- mises upon condition of keeping them in good and tenantable repair, was held bound to reinstate them after being totally destroyed by an accidental fire, and it was decided that he could not escape from the liability to rebuild by declining any longer to hold the premises. To pay taxes. Gre(j(j V. Coates, 23 Beav. 33. A reservation of rent " free from all and all manner of taxes" is now held to extend to the land tax and all taxes subsequently imposed, Bradbwrij v. Wright, Dougl. 602; Amjield V. White, 1 R. & M. 246; Sweet v. Seager, 2 C. B. (N. S.) 119; Smith v. Humble, 15 C. B. 321; see 5 & 6 Vict. c. 35. Where an exception is intended to be made, it ought to be expressly stipulated in the agreement. An agreement for a lease contains no implied engagement for general warranty of the land, nor for de- livery of an abstract of the lessor's title, G/villim v. Stone, 3 Taunt. For production 433 ; Temple V. Brorvn, 6 ib. 00. The right of the lessee to inspect the lessor's title is however admitted in all cases, Waring v. Mackreth, Forr. 138 ; except in the case of a bishop. Fane v. Spenser, 2 Madd. 438 ; and specific performance of an agreement will not be enforced when the title is not clearly made out, a lessee being considered as a purchaser pro tanto, Fildes v. Hooker, 2 Mer. 424. But as in many cases lessors may object to produce their title, and in others it may be of great impoi'tance to the lessee to be assured of the title of his lessor, care should be taken to make this a part of the contract wherever the interests of either party require it. Duration of 7. On the principle that deeds ought to be construed most in favour of the grantee, it has been decided, that where an agreement contains a power to determine a lease at the end of seven, fourteen, or twenty- one years, it shall be in the power of the lessee to determine, and not of the lessor, unless it be expressly so stipulated, Dann v. Spurrier, 3 B. & P. 399; Doe v. Dixon, 9 E. 15; Price v. Dyer, 17 Ves. 303 ; see Giddens v. Dudd, 3 Drew. 485. Usual cove- 8. Under the clause " usual covenants " are to be understood such as are usual in reference to the nature of the property, the term "usual" being the same as "reasonable," "fair." Where, in an nants. AGREEMENTS. 99 agreement for a lease, it is stipulated that it shall contain "such cove- For a Lease. nants as are usual in leases of lands," &c., in the neighbourhood, it appears that a court of equity will enforce specific performance, J3oardina)i v. Mostyn, 6 Vcs. 467. Under a contract for a lease of a mill, to contain "all usual and necessary covenants and provisoes," and particularly a covenant, on the part of the lessee, to keep the mill in good tenantable repair : it was held, that the lessee was not entitled to have introduced into the covenant the words " damages by fire or tempest only excepted," Sharp v. MiUhjan, 23 Beav. 419. As a Not to carry on school has; been held to come under the general clause, " not to cairy ^"^ trade. on any trade," it must be expressly stipulated, if any exception is to be made. Likewise, as it appears doubtful whether, if a house be As to interven- destroyed before the tenancy commences, a person shall be bound by "^^ accidents. his contract, it is advisable to make provision for this event in the agreement, Phillipson v. Leigh, 1 Esp. 397. 9. A memorandum or agreement for granting a lease or tack at Exemption rack rent, under the yearly rent of 5/., is exempted from the usual j '" stamp agreement stamp, ante, p. 81 : but it lias been held that such an agreement is not within the exception, if the interest agreed for be a beneficial one. Doe v. Boulcot, 2 Esp. 595. (As to Leases, see further, post, Leases.) No. LXII. No.LXlI. Agreement for the Lease of a House. Lease of a {General Precedent.) House. Articles of &c. Between {lessor) of &c. of the one part and Parties. (lessee) of &:c. of the other part whereby the said {lessor) agrees by indenture of lease to be executed on or before the day of next ensuing to demise and let unto the said (fewe) All Lessor agrees that messuage or tenement with the coach-house stable garden &c. *" '^'"'se. [ILere describe parcels particular Ig.] To hold the same to the Term. said {lessee) his executors and administrators from the day of next ensuing for the term of years (a) at the yearly Rent, rent of £ clear of all taxes parliamentary parochial or otherwise {b) and payable quarterly at the four usual festivals In Covenants on which lease shall be contained covenants on the part of the 138^8^0' to "V'^ rent. (a) " Determinable at the end of seven fourteen or twenty-one years." Proviso for de- And if it be so agreed, add " at the will as well of the said [lessor] as of temiining the the said [lessee]." Sect. 7. ''''"'•• {b) " Except the land-tax or sewers-rate," &c. [as the case may he]. Sect. 6. II 2 To insure. 100 AGREEMENTS. No. LXII. said {lessee) to pay the rent (a) to repair the premises (b) and to Lease of a deUver up the same at the end of the said term in eood and House. • \ A 7 1 • 1 •! • r- tenantable repair (c) And also to insure the said premises from loss by fire during the said term in one of the insurance offices in London or Westminster to be approved of by the said (lesso?-) To rebuild. for the sum of £ And also to rebuild or repair the said To repair. premises if destroyed or damaged by fire or otherwise And also not to assign (d) or underlet the said premises without the licence of the said {lessor) with all other usual (e) and rea- sonable covenants and a proviso for the re-entry of the said (lessor) his heirs and assigns in case of non-payment of the rent for the space of days after either of the said days of payment or of the non-performance of the covenants (/) And Covenants on that there shall also be contained in the said lease a covenant lessor!' ° ^^ ^^ ^^^^ P^^^ °^ *^^^ ^^^^ {lessor) his heirs executors and admi- nistrators for quiet enjoyment by the said {lessee) his executors and administrators of the said premises during the said term upon payment of the rent and performance of the covenants {g) Expense of And {h) it is hereby agreed by the said parties hereto that the ao-reements and expense of preparing these presents and the said lease and a ^^^^- counterpart thereof shall be paid and borne by the said parties equally And{i) lastly it is mutually agreed by and between Suspension of («) " Yearly and every year during the said term unless the house should '^^"'•- be burnt down or destroyed by any inevitable accident." Sect. 6. Lessee not to {b) It is usual to insert the exception, " damages by fire tempest and other rebuild. inevitable accidents excepted." Sect. 6. {c) If the covenant to insure be omitted, and the above exception be inserted, then add " except as last excepted." {d) As to this covenant, see sect. 6. And also, if it be so agreed, add "nor carry nor suffer to be carried on upon the said premises any kind of trade," or " any offensive or noisy trade." See sect. 6. {e) As to usual covenants, see sect. 8. (/") And if it be a public-house, add " and also a like proviso for the re-entry of the said [lessor'\ in case the said [lessee] shall suffer the said prenn'ses to be converted into a private house or shop without the consent in writing of the said [lessor'] for that purpose first obtained." This is now so general a stipulation in such leases that it has been held that it would be included under the words " all usual " covenants, Bennett v. Woinack, 7 B. & C. 627. (^r) As to the production of the lessor's title, see sect. 6. {h} Or, as more usual, "the said [lessee] doth hereby agree to accept such lease as aforesaid and to execute a counterpart thereof and to pay the expense of these presents and also of the said lease and counterpart." {i) See sect. 6. AGREEMENTS. 101 the parties hereto that the destruction of the said premises by fire or other cause before the execution of the said lease shall not [or " shall," as the case may he^^ in anywise alter or vacate this contract. In icitness whereof (a) the said parties have hereunto set their hand the day of 18 No. LXII. Leafte of a House. No. LXIII. No. LXIII. Lease of a Farm. Agreement for the Lease of a Farm. {General Precedent.) Articles of &c. Between &c. [see last precedent] The said (lessor) doth hereby agree to grant and the said (lessee) to accept a lease of All that farm and lands belonging to the said (lessor) situate &c. To hold the same for the term of years from the day of now last past at the yearly rent of clear of &:c. to be paid half yearly on the day of and the day of the first payment to be made on the day of now next ensuing And the said indenture Covenants in of lease shall contain the following covenants on the part of the the part of the said (lessee) that is to say To keep the tillage of the said lands lessee. in due course of husbandry and to manage the same in a good and husbandmanlike manner Not to sow or set more than acres of the said premises with potatoes carrots cabbages or other vegetables except turnips half of which at least are to be fed off and not carried off To keep and preserve the buildings gates and fences belonging to the said premises in good and sufficient repair during the said term [except the same be da- maged by fire or any other inevitable accident] To cleanse and scour yearly roods of hedges and ditches where it is most wanted Not to grub up destroy or injure any of the trees grow- ing on the said premises Not to sell any straw hay or manure during the said term To give a fresh coat of manure to every acre of the arable land once in years and to every acre of the pasture land once in years To allow the said (lesso?-) and his gamekeeper and bailiffs to come upon any part of the (n) If the agreement be entered into by the agent of eitlier party, say " the said [lessor] or [lessee^ lias liereunto set his hand by the said [agnit] his attorney lawfully constituted." [As to signing agreements, see Agjibk- MENTS, 6. 5]. 102 AGREEMENTS. No. LXIII. said grounds hereby demised at any time he or they may think Lease of a proper for the purpose of hunting shooting coursing or kilhng of game [add covenant to insure, not to assign, for re-entry on non- Farm, Covenants on payment of rent, Sfc. as in the last precedent'] A nd also the follow- the part ot the j^^ covenants on the part of the said ( lessor) That the said (lessee) may at all times dig marl and clay for the improvement of the lands and also sufficient gravel to keep the roads in repair And also that he may cut underwood and brushwood and lop pollard- trees above the age of for reasonable estovers and as much rough timber as may be needful for the repairs of the said pre- mises And also [covenant for quiet enjoyment, as in the last precedent]. In witness Sec. No. LXIV. Letting a Farm, Tenancy from year to year. Reservation of timber. No. LXIV. Agreement for Letting a Farm. An Agreement made this day of 185 between (landlord) of the one part and the (tenant) of the other part The said (landlord) in consideration of the rent hereinafter re- served and of the conditions and agreements to be performed by the said (tenant) doth hereby agree to let to farm and the said (tenant) doth hereby agree to rent and take to farm the mes- suage farm lands and premises described in the schedule here- under written at the rent and under the terms and conditions hereinafter expressed (that is to say) 1. The said premises are let from year to year commencing on the 29th day of September 185 at the annual rent of £ clear of all deductions (except the land-tax) to be paid quarterly on the 25th day of March the 24th day of June the 29th day of September and the 25th day of December the last payment of rent previous to the tenant quitting to be made on the 1st instead of the 29th day of September The (tenant) to pay all rent-charges in lieu of tithes and all rates and taxes (ex- cept land tax) Provided always that notwithstanding any of the provisions herein contained the tenancy may be determined at the end of the first or any subsequent year by either party giving six calendar months' clear notice to quit. 2. The said (landlord) reserves all timber trees pollards poles and underwoods of every description with full power of entering on the said premises to cut down convert carry away and AGREEMENTS. 1 03 manage the same and to enclose and plant any portion of the No. LXIV. said premises due compensation being made with a free passage Letung^j^arnu and right of way to all woods plantations and coverts. 3. The said (landlord) reserves all game wild fowl and fish Game. with full liberty for himself servants and others having his per- mission to enter on the said premises for the purpose of sporting- killing or taking the same and full liberty at all times to view the state and condition of the premises. 4. The tenant not to cut down lop or crop any of the timber Tenant not to trees pollards poles or underwood but to preserve the same and all fruit trees from injury. 5. The tenant to preserve all the hedges and not to lop or To preserve crop the same except against roads and not to cut the hedges ° ' less than years' growth or at any improper season of the year And upon cutting the hedges to well scour and cleanse out the ditches adjoining thereto and to back fence those cut in the pasture lands for the space of three years at least after such cutting and where ditches are required and they are not of suf- ficient depth to carry off the water then to make them efficient for such purpose. 6. The tenant to give notice to the said (landlord) or his Notice to cut agent in the month of October or November of all the hedges ^^'^ ^^^' intended to be cut that season to the end that the young trees or saplings may be marked to be left growing and to pay five pounds for every tree or sapling that is cropped or injured with the knowledge or consent of the said tenant. 7. The tenant to reside in the dwelling-house belonging to the To reside in said farm and to keep and leave the house and all the out- buildings (accidents by fire or tempest excepted) and also all walls sheep and cattle pens gates stiles pales rails hedges ditches ways and watercourses belonging to the said premises in good order and repair being found by the said {landlord) timber in the rough state bricks or stone lime stone tiles or slates neces- sary for the purpose the said {tenant) finding at his own expense all other materials workmanship and carriage. 8. The tenant not to plough or to convert into tillage any Not to plough part of the said farm which is now meadow pasture or swade P^^'"'^' "" • under a penalty of fifty pounds per acre additional rent and at that rate for any quantity greater or less than an acre and not to mow or cut any of the said lands twice in any one year for hay or seed nor any of the meadows where not properly watered 104 AGREEMENTS. No. LXIV. more than two years in succession without manuring the same Leitin g a Farm, vvithout the consent in writing of the said {landlord). Mode of culti- 9. The tenant to manage and cultivate the farm in a good scribedr*^" and husbandlike manner according to a four or five-course system as hereinafter specified The said {tenant) to spend yearly during his tenancy all the hay straw fodder and chaff on the said farm (except as hereinafter mentioned , and not to sell any part of such hay straw fodder or chaff from off the said premises (except straw for the use of the said (landlord) as here- inafter mentioned) and not to use any stubble for fuel. 10. The tenant on quitting to leave on the premises one half of the hay the produce of the last year and one half of the wheat straw properly stacked up to be taken at a spending price by the said {landlord) or by his in-coming tenant. 11. The said {tenant) subject to the provisions of clause nine to properly seed or lay down (with a crop of barley after turnips) in a good clean state of cultivation one tenth part of the arable land with sainfoin and so keep the same And previous to ploughing or breaking up any part of the said sainfoin lay to seed down the like quantity (as near as the size of the fields Avill admit) in the same manner as before described and to leave that quantity when he quits the farm And vipon ploughing or breaking up any part of the sainfoin lay the same to be pared and burned for a turnip crop and the land to be then brought into a regular four-course system hereinafter described No such sainfoin lay to remain unbroken up more than five years. 12. The tenant subject to the provisions of clause nine to cultivate the remaining part of the arable land not sown with sainfoin in a regular four-course system or -five-course system the four-course system being as follows the land first to be properly and effectually fallowed for turnips mangel wurzel or other green crop (which crops are to be consumed on the farm except where the land in the opinion of the said {landlord) or his agent shall be too heavy for that purpose) second barley or oats third not less than one-eighth with grass seeds and the re- maining part with beans peas or pulse the same to be well hoed twice at least and fourth wheat or other crop of corn or grain and then to begin the course again by a winter's fallow for tur- nips mangel wurzel or other green crop all such green crops to be consumed on the premises except as aforesaid The five- course system is the same as above except that the tenant is to AGREEMENTS. 105 be at liberty to let the seeds lie two years No deviation will be No. LXiv. allowed from this course of tillao;e. Letting a Fa rm. 13. The tenant to weed the grain regularly every year and to mow or cut down all thistles or rushes to prevent their seeding. 14. The tenant not to grow in any one year more than one- Restriction as twentieth part of the said arable land with potatoes and these to crops. be consumed on the farm not to seed more than one-half of the clover crop and not to grow more than one acre of turnip seed without the consent in writing of (landlord) previously ob- tained. 15. The tenant not to let assign or part with the possession Not to assign, of any part of the said farm or premises (except cottages) or his interest therein under a penalty of twenty pomids per acre addi- tional rent as liquidated damages. 16. The tenant if Hving within ten miles of to perform To perform for the said {landlord) at the rate of one day's team work with j^"^*^ *^°'" ''^"'^' two horses and one proper person for every fifty pounds of rent when required (except at hay and com harvest) without being paid for the same. 17. The tenant if living within ten miles of when re- To deliver quired to find and provide for the said (landlord) and to deliver ^'^'^"'* the same at two tons of good clean wheat straw for every fifty pounds of rent and to be paid for the same at the rate of thirty-five shillings per ton. 18. The tenant upon quitting the said farm to leave in the To leave hay, yards of the same farm all the hay straw and fodder arising from '^' the crop of the last year converted into manure for the use of the said {landlord) or his incoming tenant (except as before excepted) without any compensation for the same and to be allowed the use of the barns and yards till the 25th day of March following for the purpose of consuming and converting the same therein but if the grain is not all then thrashed out to be allowed the use of the barns till the 24th day of June leaving the straw and chaff for the use of the in-coming tenant. 19. The tenant after notice to quit the said farm to allow the Power for land- said {landlord) or his in-coming tenant to enter upon the clover lays or grass or lands that shall be in course to be sown with wheat on or after the first day of July for the purpose of ma- nuring ploughing and sowing the same and the liberty of carry- ing out the manure from the yards or other places where it may be found and from that time to have convenient stable room for 106 AGREEMENTS. No. LXIV. Letting a Farm. Tenant to sow seeds. Allowance to be made to tenant on quitting. Number of sheep to be kept. Power of re- entry for non- payment of rent. his horses and straw for Htter and a sleeping room for his ser- vants without any compensation. 20. The tenant previous to quitting the said farm in the last year of his occupancy to sow the lands that shall come and be in course to be so sown with clover grass seeds or sainfoin with his spring crops of grain at the option of the said {landlord) or of his in-coming tenant and to fallow and properly prepare and sow with turnips mangel wurzel or other green manure crop at the option of the said {landlord) or of his in-coming tenant the lands that shall be in course to be so sown and to well hoe the same and at the request of the said {landlord) or of his in-coming tenant to manure plough and sow the clover lays or the lands that shall be in course to be sown with wheat beino; paid for such acts of husbandry Provided nevertheless that the said {landlord) or his in-coming tenant shall have the option to enter upon the said turnip lands on the 25th day of March to do the said acts of husbandry. 21. The tenant upon quitting the said farm to be paid for the clover and grass seeds and sainfoin which he has sown with the barley or oats in the spring and for the turnips mangel wurzel or other green crop which he has sown and also for any wheat he has sown accordino; to a valuation made in the usual manner But the said {landlord ) or his in-coming tenant shall be at liberty at his or the said tenant's option to provide the grass clover sainfoin seeds and wheat and the said {landlord)or his in-coming tenant shall be at liberty with his own or the said tenant's ser- vants and horses to sow and harrow in the same and also to fallow and prepare and sow with turnips mangel wurzel or other green manuring crop the lands which shall be in course to be so sown and to enter the yards and take out the dung from the same at any time after the 2oth day of March in the said last year without paying anything to the going off tenant for such liberty to sow grass seed provided the tenant shall not after ten days' notice from the said {landlord) or his agent or the in-coming tenant do and perform the several acts aforesaid in a good and husbandlike manner. 22. The tenant in the last year of his holding to keep as many sheep on the said farm as he has been accustomed to keep in preceding years. 23. And it is hereby mutually agreed in case the rent hereby reserved shall be in arrear for twenty-one days after the same AGREEMENT*;. 107 shall have become due having been first lawfully demanded and no sufficient distress being found upon the premises hereby agreed to be demised that then the said (landlord) shall and may enter upon the said premises or any part thereof" in the name of the whole and repossess and enjoy the same as if this Agreement had not been made. Witness the hands of the parties the day and year first above written. Witness to the signing by Schedule of Messuage, Farm and Lands in the Parish of , in the County of , referred to in the before- written Agreement. No. on Map. Names of Fields. Description of Fields. House, Outbuildings, Garden and Yards The Home Meadow The Home Ground Pasture. Arable . Quantities. A. R. P. 1 30 10 2 20 12 1 20 No. LXIV. Letting a Farm. Agreement by Trustees for letting Premises during the 3Iinority of a Child, see post, Leases. No. LXV. Agreement to Let a Furnished House or Apartments. Ohs. A covenant that the landlord may distrain for rent is not ne- cessary in an instrument of this kind, as it is held that a distress may be had upon any goods of the tenant, as well for furnished as unfur- nished lodgings, Newman v. Anderton, 2 N. R. 242. Memorandum of an agreement Between (lessor) of &:c. of the one part and (lessee) of &c. of the other part as follows That the said (lessor) agrees to let and the said (lessee) to take all that messuage or dwelling-house situate &c. [or " all those the first and second floors belonging to &c." as the case may be] together with all the furniture fixtures crockery and all other things men- tioned and comprised in the schedule hereunder written for the No. LXV. To Let Fur- nished House. 108 AGREEMENTS. No. LXV. To Let. Fur- nished House. space of months to be computed from the date of these presents at the rent of £ per quarter [or " month"] [to be paid quarterly {or " monthly")] And the said (lessee) agrees that at the expiration of the said months he the said (lessee) shall and will deliver up the said dwelling-house [or " first and second floors &c."] together with the fixtures and furniture as aforesaid in as good a condition as the same now are reasonable wear and tear thereof excepted and shall and will replace any of the crockery and china or other utensils that shall be broken or otherwise damaged In witness &c. The schedule or inventory referred to in the above agreement. No. LXVI. Building Lease. Parties. Agreement to grant leases at certain periods. Parcels. Term. Rents. No. LXVI. Agreement for a Building Lease or Building Leases. (General Precedent.) Articles of kc. Between {intended lessor) of &:c. of the one part and (intended lessee) of (fee. of the other part as follow that is to say First the said (lessor) in consideration of the rents and covenants hereinafter reserved and contained and on the part of the said (lessee) to be paid and performed doth hereby agree with the said (lessee) his executors administrators and assigns That when and so soon as the messuages or tenements hereinafter men- tioned shall be built and covered in the areas thereof formed and the foot and carriage ways and pavements finished as here- inafter is mentioned to the approbation of the surveyor of the said (lessor) then he the said (lessor-) shall and will by good and sufficient indentures of lease to be prepared by the solicitor of the said (lessor) at the costs and charges of the said (lessee) grant and demise unto the said (lessee) his executors adminis- trators and assigns All that piece or parcel of ground &c. situate &c. which said pieces or parcels of ground are respec- tively delineated in the plan hereunto annexed and are therein marked with letters AAA &:c. and also the several messuages or tenements to be erected and built thereon with their appur- tenances for the term of ninety-nine years to be computed from next ensuing at the several rents following that is to say for the ground whereon the six houses are hereinafter agreed to be erected within three years from 18 at the rent of a AGREEMENTS. 1 09 peppercorn for the first three years and at the several yearly rents No. LXVI. to be apportioned as hereinafter is mentioned amounting together Building Lease. in the whole to the yearly rent or sum of £ during the re- mainder of the said intended term And for the ground whereon the six houses are as hereinafter agreed to be erected within four years from &c. And for the ground &c. \Jiere set out as before, Payable quar- varying in the numbers of houses, years and rents'\ the same rents aH jaxes. amounting in the whole to the sum of £ to be paid quar- terly clear of the land tax sewers rate and all other taxes rates assessments and impositions whatsoever parliamentary parochial or otherwise which the said premises are or may hereafter be liable to (the property tax only excepted) (a) in consideration whereof the said (lessee) doth for himself his executors admi- nistrators and assigns covenant and agree with the said (lessor) his heirs and assigns in manner following that is to say that he the said (lessee) his executors or administrators shall and will at Agreement by his and their own proper costs and charges under the inspection ^nd cover in and to the approbation of the surveyor of the said (lessor) well certain mes- . 1 . , . suages, and substantially build and cover in on the said pieces or parcels of ground second-rate messuages or tenements within the respective periods following that is to say six messuages or tene- ments on the piece or parcel of ground &c. [here set out the buildings on the several pieces or parcels of ground, and the times when they are to be built and covered in] which said mes- suages or tenements shall be built and finished conformably in conformably to every respect to the plan and elevation drawn in the margin of ^'^ ^ '^"' these presents and the several floors or stories thereof shall be of the several heights in the clear following that is to say the basement story feet &c. and they shall be feet in front and feet in depth Aiid also that the said houses with good ma- shall be built with hard bricks and all other materials equally ^'^'^'^''' good and shall be carried up and continued in every respect agreeably to the Act of Parliament for building houses in the cities of London and Westminster And the said (lessee) his to make areas ,- executors or administrators shall and will make areas to the (a) If it be so agreed, say, " And further that the said (lessor) his heirs or assigns shall at his own expense within days from the date hereof furnish the solicitor of the said (lessee) with an abstract of liis title to the said pieces or parcels of land and also permit him to inspect tlie deeds and evidences tliereof so far as may be requisite to show the authority of him the said (lessor) to grant the said leases in consideration whereof, &c." As to this clause, see Agrkements ybr a Lease, sect. G. 110 AGREEMENTS. No. LXVI. Building Lease. to slate the root's ; to make foot- ways ami pave- ments ; to pave carri- age ways. Apportionment of rents ; Covenants in leases. To finish the buildings; to pay rent and taxes ; to repair ; to paint ; to insure ; to rebuild in case of fire ; said houses feet wide in the clear and inclose the same with a Portland stone kirh and ii'on rails A7id shall slate the roofs of the houses and close board the same and make good lead or iron water pipes to convey the water into the drains And also make a footway to the said several houses feet in width and pave the same with good Yorkshire paving and a granite kerb And also pave the carriage way in front of the said houses And it is hereby further agreed that the said rent shall be apportioned and divided in the leases so to be granted as aforesaid at the rate of shillings per foot on the front of each house unless the said (lessor) his heirs or assigns and the said {lessee) his executors or administrators shall agree that the same shall be otherwise ap- portioned And the said (lessee) doth also hereby agree to accept such leases to be granted as aforesaid and to execute counter- parts thereof and to pay the expenses of preparing these presents and the said leases and counterparts (a) And in the said leases shall be contained the following covenants on the part of the said (lessee) that is to say to complete the said messuages or tenements in a substantial and workmanlike manner with all proper fixtures and fastenings to the same Also to pay the said rent and the land tax and all other taxes rates assessments and impositions whatsoever payable in respect of the said premises hereby agreed to be demised as aforesaid Also to repair amend support and keep the same premises at all times during the said term with or without notice from the said (lessor-) his heirs or assigns in good and substantial repair Also to paint the external wood and iron work of the same premises twice in oil colours every fourth year Also to insure the premises for the full value of so much thereof as can be damaged by fire in some public office of insurance from fire in London or Westminster and to keep the same so insured during the said term and to produce and show to the said (lessor) his heirs or assigns or his or their steward aoent or receiver of rents for the time being from time to time the receipts given by or on the behalf of such office acknowledging the payment of the premiums on the policy whereby the same premises are to be insured for the succeeding year And also in case any of the dwelling-houses erections or (a) Sometimes instead of enumerating the covenants, it may be only neces- sary to say, " All such covenants provisoes and agreements as are inserted in the lease granted by the said llessor] to A. B. &c., except &c." [an the case may he\ AGREEMENTS. Ill buildings shotild be destroyed by fire to rebuild or substantially No. LXVI. re})air the same according to the original ])lan Also to pay a fair Building Lease. and just proportion of" all expenses and charges for renewing or to contribute • 1 • ■ • 11 ,. towards repair- repannng pavements renewnig cleansmg or repan ing walls gutters i,jg pavements, pipes drains and watercourses which shall be used in common by ^^- > the occupier of the demised premises and the occupiers of any other messuages or dwelling-houses already erected or hereafter to be erected on any part of the now estate of the said (lessor) or of any other person near or adjoining thereto Also to leave the to leave pre- premises at the end of the said term hereby agreed to be demised ""pa^'" ^°°' in good and substantial repair together with all marble and other chimney-pieces mantel-pieces hearths covings jambs foot-pieces and slabs sash and other windows casements w'indow-shutters doors locks kevs bolts bars and all other fasteniniis whatsoever also marble and other water-closets cisterns and things thereunto belonging and all wainscot partitions fixed presses dressers shelves drawers pipes pumps posts pales and rails and other fixtures fixed or fastened to the premises or which shall be found thereon or on any part thereof during the last seven years of the said term Also to permit the said {lessor) his heirs or assigns To permit and his or their respective agents surveyors and workmen to enter thTp'remlsesr^ upon the said premises hereby agreed to be demised at any time or times during the said term for the purpose of surveying the same and examining if any and what repairs are or may be want- ing and to repair within three calendar months to the approbation and satisfaction of the surveyor for the time being of the said (lessor) every defect which shall be found upon such survey and of which notice in writing shall be given at or upon the said pre- mises Also to permit the said (lessor) his heirs or assigns or their respective agents surveyors and workmen to enter into and upon the said premises or any part thereof at any time or times during the last seven years of the said term for the purpose of taking a schedule or schedules of the fixtures thereon or upon any part thereof Also to prevent the said (lessee) his executors administrators or assigns from cutting maiming or injuring any of the principal timbers or walls of the said building or from letting or converting the same into any shop for trade, or suffer- ing any open or public show of business therein without the licence of the said (lessor) his heirs or assigns in writing for that purpose first had and obtained and from committing or suffering any annoyance to the other lessees or occupiers of any other messuages or dwelling-houses lands and hereditaments of 112 AGREEMENTS. No. LXVI. or belonging to the said (lessor) his heirs or assigns near or Building Lease, adjoining to the said premises hereby agreed to be demised Also a clause for re-entry on non-payment of the rent days after each day of payment And all other clauses covenants and agreements usual or necessary to be inserted in leases of the like kind And also a covenant on the part of the said {lessor) his heirs or assigns for the quiet enjoyment of the pre- mises hereby agreed to be demised against any person or persons claiming under him or them the said {lessee) his executors admi- nistrators and assigns paying the rents and performing the cove- nants and agreements hereby on his part agreed to be paid done Disputes to be and performed And it is hereby lastly agreed that if any doubt settled by arbi- (Jigp^te or difference shall happen as to any covenant or agree- ments in the said intended lease to be contained or the construc- tion of these presents in respect thereof the same shall be referred to two indifferent persons to be respectively named by each party as arbitrators between them and in case such arbi- trators shall not make their award in writing within days after reference to them made the same shall be referred to a third indifferent person to be forthwith named and appointed by the said two arbitrators as umpire to determine the same within days next thereafter and which submission shall at the instance of either of the parties hereto be made a rule of her Majesty's Court of Queen's Bench at Westminster. Jn witness &cc. No. LXVII. No. LXVI I. Under-Lease. Agreement to let Agreement from the Lessee to demise Ground held by him under the foregoing Agreement. Articles of Agreement made and entered into J^etween (lessee) of &c. of the one part and {under-lessees) of &c. of the other part as follows The said {L.) in consideration of the rent and covenants hereinafter agreed to be paid and performed doth hereby agree to let unto them the said {U.) and to each of them their respective executors administrators or assigns when and as soon as they shall have erected and built the messuages and tenements hereinafter covenanted by them to be erected and he andgrantlease. the said {L.) shall be lawfully enabled thereunto to grant and execute to them a good and valid lease or demise by indenture of All that kc. as the same is more particularly described in the AGREEMENTS. 113 plan drawn in the margin of these presents with all ways paths No. LXVii. passages lights easements waters watercourses profits and ap- Uii-r- Lease. purtenances whatsoever to the said premises belonging or any- wise appertaining To hold the same piece or parcel kc. unto the said {U.) their respective executors administrators and assigns as tenants in common and not as joint tenants from now last past for and during and unto the full end and term of years and three quarters of another year at and under the yearly rent of £ payable quarterly for the first three years of the said term and at and under the yearly rent of £ payable quarterly during the then remainder of the said term clear of the land tax sewers rate and all other rates taxes and assessments whatever [the property tax only excepted] And it is hereby agreed that in such lease shall be contained all and every the like covenants clauses provisoes conditions restrictions and aoree- ments as are contained in the lease by virtue whereof the said {L.) shall then hold the said premises [except &c.] And also a covenant for the said (Z.> his executors administrators and as- signs to indemnify them the said (U.) their executors administra- tors and assigns respectively from the payment of any other or former rent or rents than those which shall be reserved by the said intended lease and from all costs and damages by reason of the nonpayment thereof and all other demands whatsoever And the said (6^".) for themselves and their respective executors &c. do hereby agree with the said (Z.) his &:c. to take the said pre- mises &c. from &c. for the said term at the yearly rents afore- said and that they shall and will pay the said rents in time and manner aforesaid clear of all taxes &c. as aforesaid And also shall within the space of years to be computed from the day of last past erect build and set up upon the said piece or parcel of ground hereby agreed to be demised one messuage or tenement conformably in every respect to the plan kc. [See last precedent] ylwr/a/50 that the said house shall be built (fee. And ih-dit the said {U.) shall and will make areas &c. and slate kc. A nd also make a footway &c. And also pave kc. And the said {U.) do also hereby agree to accept added to the seems, cannot be inserted, W heate\. Hall, 17 Ves. 80; Sugd. Pow. articles. 178,6th edit. But where marriage articles contained a clause for all usual powers, it has been decided, that powers of sale and exchanrre come within this clause, and ought to be inserted in the settlement, PeaheY. Penl'mgfon, 2 Ves. & B. 311. (As to settlements, see further Settlemexts.) No. LXX. No. LXX. Articles for a Settlement of the Freehold, Copyhold and Personal Marriage Property of the intended Wife, an Infant. Articles. This Indenture made the day of in the Parties, year of the reign of &c. and in the year of our Lord 18 Between (Intended Wife) spinster &c. of the first i)art ( Guardian or Father) of &:c. of the second part (Intended Husband) of &c. of the third part and ( Trustees) of the fourth part Whereas a Recital of marriage is intended to be shortly had and solemnized between ''•"'Cfment for the said (/. H) and said (/. W.) And whereas the said (/. W.) '^ '"'"'■"'^"'• will attain her age of twenty-one years the day of next ensuing And whereas by the last will and testament of Lady will at- W. C. late of &c. deceased bearing date on or about &c and '"'" '^"-''" ''^^'^' 118 AGREEMENTS. No. LXX. Marriage Articles. is seised of free- hold estates, &c. under a will. Agreement that the lady's pro- perty shall be settled. Testatum. Husband and wife to concur, in conveying real estates, upon trust for sale. several codicils thereto (fee. the said (/. W.) is seised of or enti- tled to divers freehold and copyhold estates and is possessed of or entitled to a share of personal estate to a considerable amount and eventually may become seised or possessed of or entitled to other freehold copyhold and personal estates under and by virtue of the same last will and codicils thereto And ivhereas on the treaty for the said marriage it was agreed by and between the said (/. W.) and (/. H.) with the approbation of the said (Guar- dian) testified by his signing and sealing these presents that the said freehold copyhold and personal estates or the share or re- spective shares of the said personal estate of which the said (/. W.) is or of which she or the said (/. H.) in her right from time to time shall be or become seised of or entitled to under or by virtue of the said will and codicils as aforesaid shall be settled upon the trusts and for the ends intents and purposes and under and subject to the powers provisoes declarations and aoreements hereinafter directed and aoreed to be limited expressed and declared of and concerning the same JYoiv this Indenture witnesseth That in consideration of the said intended marriage he the said (/. H.) doth hereby for himself his heirs ex- ecutors and administrators Andlihe said (/. IF.) with the consent and approbation of the soid (Guardian) testified by his executing these presents doth hereby so far as she can or may at law or in equity for herself her heirs executors and administrators cove- nant with the said (T.) their executors and administrators That in case the said intended marriage shall take effect and the said (/. W.) shall live to attain the age of twenty-one years of age They the said (/. H.) and (/. W.) and all other necessary parties shall and will at the costs and charges of him the said (/. H.) as soon as conveniently may be after the said (/, W.) shall have attained her said age of twenty-one years by such ways and means as by the counsel of the said (T.) or the survivor of them or the executors or administrators of such survivor shall be advised or required effectually convey surrender and assure or cause and procure to be conveyed surrendered and assured the said freehold and copyhold hereditaments to which the said (/. W.) now is or at anytime hereafter may become entitled under the said will and codicils unto and to the use of the said ( T.) their heirs and assigns upon the trusts and for the intents and purposes and with under and subject to the powers and provisions herein- after mentioned (that is to say) Upon trust that they the said ( T.) and the survivor of them and the heirs and assigns of such AGREEMENTS. 119 survivor do and shall at any time or times with the consent in No. LXX. writing of the said (/. H.) and (/. W.) his intended wife during^ Marriage » . Articles. their joint lives and after the decease of either of them then with the consent in writins; of the survivor of them and after the decease of the survivor of them at the discretion of the said trustees or trustee for the time being absolutely sell and dispose of the said hereditaments and premises hereinbefore agreed to be conveyed and surrendered respectively either entirely and altogether or in parcels by public auction or private contract with full power upon any such sale to make any stipulations as to title or evidence of title or otherwise as the said trustees or trustee shall deem proper and also with power to buy in or rescind any contract for sale of the said premises or any part thereof and to resell the same without being responsible for any loss which may be occasioned thereby with a provision that the Trustees' re- receipt or receipts in writing of the trustees or trustee for the time being for the purchase-money of the premises sold shall be an etfectual discharge or effectual discharges to the pur- chaser or purchasers for the money therein respectively acknow- ledged to be received and that such purchaser or purchasers shall not be concerned to see to the application of his or their purchase-money or be answerable for the loss misapplication or non-application thereof ^nc? with a power to enable the trus- Power to lease, tees or trustee for the time being at any time or times during the lives of the said (/. H.) and (/. W.) and the life of the sur- vivor of them with their his or her consent in writing and after the decease of such survivor at the discretion of the said trus- tees or trustee for the time being and in the mean time and until the said hereditaments and premises shall be sold in pur- suance of the trusts aforesaid to make and execute any lease or leases of the same premises or any of them or any part thereof for any term not exceeding twenty-one years to take effect in possession at the best yearly rent or rents which can be reason- ably obtained without any fine or other benefit in the nature of a fine provided that every such lease be not made without impeachment of waste and do contain a covenant for the pay- ment of the rent and such other usual and proper covenants as tlie said trustees or trustee shall think proper and also a con- dition of re-entry on non-payment for a period not less than twenty-eight days of the rent thereby reserved and on non-ob- servance of any of the covenants or conditions therein contained and provided a counterpart of every deed of lease be executed 120 AGREEMENTS. No. LXX. Marriage Articles. Application of rents until sale. Trusts of monies arising from sale. Further tes- tatum. Covenant as to personal estate. Trust to con- vert personalty into money. by tlie lessee And with a declaration that until the said here- ditaments and premises shall be so sold as aforesaid the said trustees or trustee shall and do pay and apply the rents issues and profits of the same premises or the unsold part or parts thereof respectively in the manner in which the interest of the money to be produced by such sale would for the time being be applicable under the trusts hereinafter contained in case such sale were then actually made And it is hereby further agreed and declared that the said trustees or trustee shall hold the monies which shall arise from any sale made in pursuance of the aforesaid trusts upon trust in the first place by with and out of the same monies to reimburse themselves or him- self or pay or discharge all the costs and expenses incurred in or about such sale or otherwise in respect of the premises and in the next place to apply such monies upon the same trusts as are hereinafter declared concerning the monies to be received in respect of the personal estate of the said (/. W.) And this Indenture further loitnesseth That in pursuance of the said agreement in this behalf and in consideration of the said intended marriage the said (/. H.) doth hereby for himself his heirs executors and administrators and the said (7. W.) with such consent and approbation and so testified as aforesaid doth hereby so far as she can or may at law or in equity for herself her heirs executors and administrators covenant with the said {T.) their executors administrators and assigns that in case the said intended marriage shall take effect They the said (/, H.) and (/. W.) or their respective executors or administrators shall and will at the costs and charges of the said (/. H.) his exe- cutors or administrators from time to time as soon as the case will admit make do and execute or cause to be made done and executed all such assionments acts deeds matters and thinos whatsoever as will effectually vest all such personal estate what- soever as the said(/. II'.) is now in anywise entitled to or as she the said (/. W.) or the said (/. H.) in her right shall at any time or times during the joint lives of them the said (/. H.) and (/. W.) become in anywise entitled to under the said recited will and codicils respectively and every part thereof respectively in the said {T.) or the survivor of them or the executors adminis- trators or assigns of such survivor upon the trusts and with the powers hereinafter declared of and concerning the same (that is to say) Upon trust from time to time when and as such per- sonal estate shall fall into possession or become payable or AGREEMENTS. 121 transferable to or receivable by the said trustees or trustee for No. LXX. the time being to call in and receive sell and dispose of and Marriage convert into money the same personal estate and every part thereof and to lay out and invest the money arising therefrom To invest pro- and also the monies to arise from the sale of the said freehold and copyhold estates hereinbefore agreed to be conveyed as aforesaid in the names or name of the said trustees or trustee for the time being either in the public funds or parliamentary stocks of Great Britain or at interest upon government or real securities in England but not in Ireland and to alter vary and transpose the same stocks funds or securities from time to time as to them or him shall seem reasonable yet so that during the lives of the said (/. H.) and (/. W.) and the life of the survivor of them every such alteration variation and transposition shall be made with their his or her consent in writing And vpon Interest pay- trust to pay the interest dividends and annual proceeds of ^ j-l° all the said trust monies stocks funds or securities to or permit the same to be received by the said (/. H.) and his assigns during his life And after his decease to or by remainder the said (/. W.) and her assigns during her hfe And^°^'^^^°''^'^^- after the decease of the survivor of them the said (/. H.) and (/. W.) to stand possessed of all the said trust monies stocks funds and securities and the interest dividends and an- nual produce thereof In trust for all and every or such one Trusts for d or more exclusively of the others or other of the children and hnsban" an child of the said intended marriage at such age day or time or vvife shall ap- respective ages days or times And if more than one in such shares and proportions and with such provisions for their re- spective maintenance and education or advancement and with such annual sums of money and limitations over for the benefit of the said children or some or one of them and upon such con- ditions with such restrictions and in such manner as the said (/. II.) and (/. W.) his intended wife shall during their joint lives by any deed or deeds instrument or instruments in writing with or without power of revocation and new appointment to be by them both sealed and delivered in the presence of and attested by two or more credil)le witnesses jointly direct or appoint And in default of such joint direction or ap])ointnient or as suvivnr and so far as every or any such direction or appointment shall ^^'^ appoint. not extend then as the survivor of them the said (/. H.) ;nid (/. W.) his intended wife by any deed or deeds instrument or instruments in writing with or without power of revocation or new appointment to be by him or her sealed and delivered in the 122 AGREEMENTS. No. LXX. Marriage Articles. In default of appointment for children equally. Hotchpot clause. Maintenance. Advancement. presence of and attested by two or more credible witnesses or by his or her last will and testament or any codicil or codicils in writing to be by him or her signed in the presence of two or more credible witnesses shall from time to time direct or ap- point and in default of any such direction or appointment or so far as any such direction or appointment shall not extend in trust for all and every the children and child of the said intended marriage who being a son or sons shall attain the age of twenty- one years or who being a daughter or daughters shall attain that age or marry to be divided between or among such children If more than one in equal shares and if there shall be but one such child the whole to be in trust for that one child But no child taking any share or shares of the said trust monies stocks funds and securities under any appointment or appointments to be made by the said (/. H.) and {I.W.) or the survivor of them under the aforesaid powers in that behalf or either of them shall be entitled to any share of the unappointed part of the said trust monies stocks funds and securities without bringing his or her appointed share or shares into hotchpot and accounting for the same accordingly And upon further trust after the death of the said survivor of them the said (/. H.) and (/. W.) and until the vesting of the portions of the children of the said intended mar- riage under the trust aforesaid to pay and apply all or any part of the interest dividends or annual produce of the portion or portions to which any such child or children shall or may for the time being be entitled in expectancy for or towards his her or their maintenance and education respectively and to accumu- late the residue thereof in the public stocks or funds or upon such securities as aforesaid for the benefit of the person or per- sons who shall ultimately become entitled to the principal and with power for the said trustees or trustee for the time being at any time or times after the decease of the survivor of them the said (/. //.) and (/. W.) or in the lifetime of them or either of them in case they he or she shall so direct by any writing or writings under their his or her hands or hand to levy and raise any part or parts of the then expectant or then vested portion or portions of any child or children of the said intended marriage under the trusts aforesaid not exceeding in the whole for any one such child one moiety or equal half part or share of his or her then expectant or then vested portion and to pay and apply the same for his her or their preferment advancement or benefit in such manner as the said trustees or trustee shall in their or his discretion think fit And upon further trust that if there AGREEMENTS. 123 shall be no child of the said intended marriasie who beincr a No. LXX. son shall attain the age of twenty-one years or being a daughter Marriage shall attain that age or marry then and in such case the said '- — {T.) and the survivor of them and the executors administrators J^-^^^ ^^ ^1°^ and assigns of such survivor shall from and after the decease of children, the said (/. H.) and such default or failure of children of the said intended marriage as aforesaid stand and be possessed of and interested in all and sinoular the said trust monies stocks funds and securities and the dividends interest and annual pro- duce thereof and all the accumulations of the same if any or such part thereof respectively as shall not have been applied or disposed of under any of the trusts powers or authorities afore- said upon the trusts following (that is to say) If the said (/. IF.) shall survive the said (/. H.) in trust for her the said (/. W.) her executors administrators and assigns But if the said (/. W.) shall die in the lifetime of the said (/. H.) then in trust for such person or persons and for such intents and pur- poses as the said (/. W.) in her lifetime notwithstanding her coverture shall by her last will and testament in writing or any codicil or codicils thereto or any writing or writings purporting to be a will or codicil to be signed by her in the presence of and attested by two or more credible witnesses direct or appoint A?id in default of such direction or appointment in trust for the person or persons who by virtue of the statute of distribution of intestates' effects would at the decease of the said (/. W.) have become entitled to her personal estate if she had died intestate luimarried and without issue and such persons if more than one to take in the shares in which they would have become entitled to such personal estate And it is hereby agreed and declared Clauses to be that in any conveyances settlement or settlements of any real |"^'^'"''^|' ^" ^^'" or personal estate which may be made in pursuance of these presents there shall be inserted the usual power for trustees to give receipts and all other proper clauses declarations and agree- ments for enabling the several trustees to be therein named to execute and perform the several trusts to be in them reposed And also a power or proviso for the ajjpointment of any new trustee or trustees by the said (/. 11.) and (/. W.) or the sur- vivor of them or the executors or administrators of such sur- vivor either in addition to the acting trustees or trustee for the time being or in the place or stead of any trustee or trustees for the time being under such settlement who shall die or desire to be discharged from or decline or become incapable to act in tlu^ 124 AGREEMENTS. No. LXX. Marriage Articles. aforesaid trusts A nd also proper clauses agreements and declara- tions for the indemnity of the said trustees and for authorizing and empowering them to deduct and retain the costs and ex- penses to be incurred by them in or about the execution of any of the aforesaid trusts or powers And also such further and other clauses provisions powers agreements and declarations as well for the further explaining these presents as for the conve- nience use or benefit of all or any of the parties to such settle- ment or of any person or persons interested in the premises as the said ( T.) or the survivor of them or the executors or admi- nistrators of such survivor shall think proper and reasonable or as usual in such cases In witness Sec. No. LXXI, Equitable Mortgage. No. LXXI. Agreement that a Person shall hold Title Deeds as a Deposit and for a Mortgage at some future time. Ohs. 1. It is a rule in equity, grounded on the decision of Lord Thurlow, in Russell v. Russell, 1 B. C. C. 269, that a mere deposit amounts to an equitable mortgage; but as the question respecting the intention of the parties has been frequently raised, a writing is abso- lutely necessary, in order to prevent litigation. See Shelford on Bankruptcy, pp. 291—294, 2nd. edit. 2. A mere agreement to mortgage, where there is no deposit of title deeds, will not in equity defeat the legal claims of other parties, Finch V. Winchelsea (E.), 1 P. Wms., and ought not therefore to be substituted in any case for a regular mortgage. Articles kc. Between {Borrower) of &c. of the one part and {Lender) of &c. of the other part Witness That in consideration of the said (Z.) having on or about the day of instant transferred into the name of the said {B.) the sum of £ 3 per cent. Consolidated Bank Annuities the property of the said (Z.) for the accommodation of the said {B.) and by way of loan to him the said {B.) the said {B.) Hath deposited and by these presents Doth declare that he hath deposited with the said (Z.) and in his hands put the several deeds and papers mentioned or enumerated in the schedule to these presents being deeds and papers which relate to or concern the title of all that piece or parcel of ground messuage (fee. {parcels) with the rights members and appurtenances To the intent that the same deeds and the same piece or parcel of ground messuage &:c. and the fee- simple and inheritance thereof may be a security to the said (Z.) AGREEMENTS. 126 his executors administrators and assigns for the transfer by the said (JB.) and his executors or administrators of the sum of <£ 3 per cent. ConsoHdated Bank Annuities and for the payment in the meantime by the said(ii.) his heirs executors administrators and assigns to the said (Z.) his executors &c. of the dividends which would have become payable on or for the said sum of £ 3 per cent. &c. if the same had not been so transferred as aforesaid And the said (H.) doth hereby agree on or before the day of next ensuing to purchase or cause to be purchased the sum of £ 3 per cent. Consolidated Bank Annuities and to transfer the same into the name of the said (Z.) and to pay the amount of the intermediate dividends thereon to the said (Z.) his executors &c. without any abatement or deduc- tion whatsoever A7id moreover if the said sum of £ 3 per cent. &c. and amount of dividends should remain on this security at any time after the day of next ensuing then he the said {B.) his heirs executors or administrators shall and will at any time thereafter at his and their own costs and charges upon the request of the said (Z.) his executors kc. by such conveyances assignments and assurances as he or they or his or their counsel shall in that behalf advise well and effectually convey the said piece or parcel of ground messuage &c. with their and every of their appurtenances unto the said (Z.) his heirs executors kc. free from all incumbrances subject never- theless to a proviso for redemption thereof to be contained in such conveyances together with all such other covenants clauses and stipulations as are usual in mortgages of a like kind In witness &c. No. LXXI. Equitable Murtnase. No. LXXII. Agreement fur a MorUjmje with a Deposit of Title Deeds. Memorandum of an agreement made &c. Between {Mort- fjfjfjor) of &c. of one part and {Mortgagee) of &c. of the other part Whereas the said {mortgagor) stands justly and truly indebted to the said {mortgagee) in the sum of £ and for securing the repayment thereof with interest after the rate of £ per cent, per annum hath this day deposited in his hands the title deeds and writings relating to a freehold estate at in the county of specified in the schedule hereunder written or hereunto annexed Now therefore the said {mort- No. LXXII. Equitable Mortgage. 126 AGREEMENTS. No. LXXII. fjagor) doth hereby agree with the said {mortgagee) that if the Equitable gr^jj g^jj^ of £ with interest thereon after the rate afore- ^'"'^^"^^- gj^-(^ gi^jj^U j^qI- |3e paid to the said (mortgagee) his executors ad- ministrators or assigns on or before the day of next ensuino- the date hereof that then and in such case the said (mortgagor) and all other necessary parties (if any) shall and will immediately afterwards at the request of the said (mort- gagee) his executors administrators or assigns but at the proper costs and charo-es of the said (mortgagor) his executors or ad- ministrators well and effectually convey and assure the said freehold estate free from incumbrances by such assurances as the said (mortgagee) his executors administrators or assigns or his or their counsel in the law shall approve unto and to the use of the said (mortgagee) his heirs and assigns subject never- theless to redemption on the repayment of the said sum of £ with interest for the same after the rate aforesaid at the times and in manner to be therein mentioned. And it is hereby agreed that the said conveyance shall con- tain the usual covenants for title and for further assurance and all other provisoes declarations and covenants usually inserted in morto-aoes of the like nature And that in the said conveyance shall be inserted a power for the said (mortgagee) his exe- cutors administiators or assigns in case of default being made in payment of the said sum of £ and interest six months after notice for the payment thereof to sell the whole or any part of the said estate by public auction or private contract sub- ject to any reasonable conditions of sale and to apply the money arising from any such sale or a sufficient part thereof in pay- ment of the expenses incident to such sale and of the principal and interest monies due to the said (mortgagee) his executors administrators or assigns by virtue of the said mortgage And it is hereby ftu'ther agreed between the said parties hereto that the said deeds and writings and the estate therein comprised shall not be redeemed or redeemable by the said (.mortgagor) his heirs or assigns until payment of the said sum of £ together with interest for the same after the rate aforesaid Wit- ness our hands the day and year first above written. The schedule to which the above agreement refers. AGREEMENTS. 127 AGREEMENTS FOR A PARTITION 1. Partition by Parol, xohere for- merly good or otherwise. 2. Effect of a Parol Agreement to hold in Severalty. 3. Agreements sometimes necessary. 4. Stipulations as to Costs. o. A Deed now necessary. Sect. 1, At common law, copnrceners might have made partition Partition, by parol without deed, Litt. s. 250; also tenants in common might have made partition by parol, if they afterwards executed the parti- tion by livery of seisin. A pai-ol partition between joint-tenants of freeholds was not good, Dyer, 350 b; Co. Litt. 169 a; Cro. Eliz. 95. But joint-tenants as well as tenants in common might have made par- tition of a terms of years without deed, Dyer, 350 b ; Cro. Eliz. 95. The author of tlie " Commentaries," and after him Mr. Cruise, ob- serve, that " the Statute of Frauds has abolished this distinction, and made a deed necessary in all cases." It was, however, the more general opinion, that a writing only was necessary on partition by co- parceners, and a wi'iting executed with livery of seisin by tenants in common, 2 Coram. 324; 4 Cru. Dig. 96, s. 16; Oaklet/ v. Smith, Ambl. 368; Allnat on Part. 130. 2. An agreement between joint-tenants to hold in severalty will Effect of a operate in equitv to sever the ioint-tenancy, so that the jus occre- P^''°^ agree- ,. • 1 "n • 1 . . , -, \ ^ ment to hold scendi, or right ot survivorship, is destroyed, 2 Comm. 185; Brown in severalty. V. Raindle, 3 Ves. jun. 256. But it appears that a mere verbal agreement will not be sufficient ; there must be some note or writing, 2 B. C. C. 220 ; 1 Vern. 472 ; 2 Cru. Dig. 513. So a parol agree- ment for equality of partition, put in execution and long acquiesced in, if entered into by parties having a right to contract, will be esta- blished in equity, Ireland v. Rittle, 1 Atk. 542. But a partition under an agreement made by the husbands of two joint-tenants will not bind tlie inheritance of the wives, unless they be parties thereto, Ireland \. Rittle, 1 Atk. 542 ; 2 Cru. Dig. 513. A parol agree- ment to make partition by the guardian of an infant tenant in com- mon will be binding, if confirmed by the infant after his coming of age by granting leases or otherwise, Whaley v. Dan%son, 2 Soh. & Lef. 367. Also a parol partition between tenants in tail will be bind- ing on the issue, 2 Vern. 233. Courts of equity may decree a parti- tion of lands of copyhold or customary tenure, 4 & 5 Vict. c. 35, s. 85. Before that act a bill in equity did not lie for the partition of such lands, Ilurncastle v. Charlesn:orth, 11' Sim. 315; Jupc v. Morshead, 6 Beav. 213; Oakley v. Smith, Ambl. 368 ; S. C. lilden, 261. A partition by parol and separate possession cannot be ques- tioned after having been acted on for more than twenty years, Paine v. Rijder, 24 Beav. 151. A-rrooments q ' 1 1 1 1 • • 1 ■ SOIIUtilllCS IIC- o. Allliough joint-tenants anfl tenants iii common arc compellahle, ccssary. 128 AGREEMENTS. Partition. by tlic 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, to make partition, yet this will not obviate the necessity for an agreement, particulai'ly where delay is likely to arise in executing the partition. Stipulations as 4. It was formerly held, that, in the absence of all stipulation, the to costs. expense was to be borne equally by all parties, however unequal their interest, Norris v. Le Neve, 3 Atk. 81 ; Cornish v. Gesf, 2 Cox's Cas. 27. This doctrine appears, however, to have been since over- ruled, Calmachj v. Calmadtj, 2 Ves. jun. 568; an express provision on this point ought therefore to be inserted in the agreement. 5. By the 8 & 9 Vict. c. 106, s. 3, partitions of any tenements or hereditaments, not being copyhold, made after the 1st day of October, 1845, are void at law, unless made by deed. No.LXXIII. No. LXXIII. Partition Agreement between tico Joint Tenants of Freeholds or (Joint Tenants). ^ 777. 7 7-1 .•■• Copylioids to make Jr'artition. Parties. Articles &c. Between A. B. of &:c. of the one part and C. D. of &c. of the other part Whereas under or by virtue of the last Recital of will &c. {or as the case may be) the said A. B. and C. D. are seised to them and their heirs in equal shares and proportions as joint- tenants in possession of certain messuages lands and heredita- Agreementto ments situate at &c. And whereas the said A. B. and C. D. are ma e partition, ^gg^j.^^^^ ^^ making such partition thereof as is hereinafter parti- Testatum. cularly expressed JVow these presents witness and each of them the said A. B. and C. D. doth for himself respectively and for his respective heirs executors and administrators agree with the other of them his heirs &C: in manner following that is to say (a) That the messuages &c. situate at kc. shall henceforth become Part of tlie ^|^g ^^-^Iq property of the said A. B. his heirs and assigns and the TDrGlTlisCS to D6- L I J long to the one, Scc. of the Said C. D. &c. And that it shall be referred to (Arbi- and part to the ^^^^^^) Qf ^^^ ^q settle the equivalent in money or otherwise by Partition made (^a) If the partition is to be made by commissioners, instead of this and the y conmiib- subsequent clause, sav " That a partition and division of all and singular the sioners or tneir 1 ' „ i <= umpire. said messuages lands and hereditaments into two separate allotments as nearly as may be shall be made by (one commissioyier) of &c. a commissioner nomi- nated by and on behalf of the said A. B. and {other coimnissioner) of &c. a commissioner nominated by and on behalf of the said C. D. or by the umpire to be chosen by them Ajid that the said (C.) or their umpire shall appor- tion each of the allotments in severalty to the said A. B. and C. D. and decide what sum of money shall be paid for equality of partition &c. And also that each of them the said A. B. and C. D. shall and will join" &c. {See above.) AGREEMENTS. 129 way of compensation for equality of partition and to decide to No. LXXIII. which of the said parties the title deeds relatino- to the said , ^ Panition . . {Joint lenants). hereditaments shall be delivered yl«rt that the said parties will stand and abide by the judgment of the said {A.) And also Parties to exe- that each of them the said A. B. and C D. shall and will join conveyances. and concur in making and doing all such acts deeds convey- ances and assurances as the other of them his heirs or assigns or his or their counsel shall think necessary for parting and severing the several messuages lands and hereditaments so devised to them the said A. B. and CD. and for conveying the said mes- suages lands and hereditaments situate at &:c. in severalty unto the said A. B. his heirs and assigns and the several messuages lands and hereditaments situate at &c. in severalty unto the said C. D. his heirs and assigns and that the party to whom the said title deeds shall be delivered shall enter into the usual covenant with the other party for the production of the said title deeds and for furnishing attested or other copies of the same deeds at the expense of the party requiring the same And lastly that Costs, the costs [a) and expenses of the said conveyances and assur- ances shall .be borne and paid by the person oi persons in whose favour the same shall be made and executed and that all other costs and expenses attending the said partition shall be borne equally between the said parties In witness kc. No. LXXIV. No. LXXIV. Agreement for Partition to be made by Commissioners, Partition. And u'hereas the said A. and B. have mutually agreed to effec- tuate a partition of the said messuages lands and heredita- ments upon the terms and in the manner hereinafter mentioned Now these presejits witness that the said A. doth hereby agree Witness that with the said B. and the said B. doth hereby agree with the said ||eVi;Ki"hy^ A. in manner following that is to say That a partition and divi- commissioners, sion of all and singular the said messuages lands and heredita- ments into two separate allotments of equal value or as nearly so as circumstances will permit shall be made as soon as con- veniently may be by {commissioner) of &c. a commissioner nominated by and on the behalf of the said A. and {another com- missioner) of &c. a commissioner nominated by and on the behalf (fl) As to the cotts, see sect. 4. VOL,. I. K 130 AGREEMENTS. No.LXXIV. Partition. and if they dis- thc decision of their um]iire to be final. Commissioners or umpire to decide wliat allotment each party shall have ; and the equality of par- tition money. Parties to exe- cute mutual conveyances. Commissioners or umpire to decide who shall pay mort- gage money. of the said B. And that if the said commissioners should differ in opinion touching the said intended partition or the mode of carrying the same into effect or touching any matter relating thereto then and in every such case the subject-matter of every such difference of opinion shall be reduced into writing and shall be referred to an umpire to be named by the said commissioners before they proceed on the said arbitration or the valuation or arrangement for that purpose /Jnd that the determination or decision of such umpire upon the matter or matters so to be referred to him shall be final binding and con- clusive both upon the said commissioners and upon the parties hereto And that when and so soon as such partition or division shall have been made the said commissioners or in the case of their difference the said umpire shall decide which of the said allotments shall be taken in severalty by the said A. and which of the said allotments shall be taken in severalty by the said B. And that it shall be lawful fur the said commissioners or in case of their difference the said umpire to decide and determine whe- ther any and what sum of money shall be paid for equality of partition and by which of the parties such money shall be paid And that when it shall have been determined which of the said allotments shall betaken in severalty by the said A. and which of the said allotments shall be taken in severalty by the said B. and whether any and what sum of money shall be paid for equality of partition and by which of the said parties such money shall be paid the said parties respectively and their respective heirs or assigns shall with all convenient speed make do and execute all such acts deeds or assurances as the counsel of the said parties respectively or their respective heirs or assigns shall advise or require for the purpose of conveying and assuring such of the said allotments as shall have been decided in manner aforesaid to be taken in severalty by the said A. with their appurtenances unto and to the use of the said A. his heirs and assigns or to such uses and in such manner as he or they shall direct or appoint and for the purpose of conveying and assuring such of the said allotments as shall have been decided in man- ner aforesaid to be taken in severalty by the said B. with their appurtenances unto and to the use of the said B. his heirs and as- signs or to such uses and in such manner as he or they shall direct or appoint [And that such provisions shall be made for the pay- ment by the respective parties of their shares of the monies due or to become due on the said mortgages respectively as by the said AGREEMENTS. 131 commissioners or their umpire shall in that behalf be directed] No. LXXIV. Jind it is hereby further agreed that the said commissioners Partition. shall be and they are hereby authorized to make a survey of the Commissioners said estates and to cause a map or plan to be drawn thereof makeTsurvey. and that the costs charges and expenses of preparing engrossing and executing this present agreement or in anywise relating All costs r f thereto and of making such partition or division as aforesaid bonie'equdly! and of making such survey and such map as aforesaid and all other costs charges and expenses incurred or to be incurred in or about such partition or division or in anywise relating thereto [except the costs charges and expenses of the respective con- veyances of the allotments to be taken in severalty] shall be paid and borne by the said A. and B. in equal proportions ^nc?that the expense of the conveyances of the allotments to be taken in severalty by the said A. shall be borne by the said A. And that Each party to the expense of the conveyances of the allotments to be taken in P^y costs of his ' •-!->' ^^^'^ convey- severalty by the said B. shall be borne by him And it is ance. hereby further agreed and declared that the said commissioners Commissioner or their umpire shall decide to which of the said parties the "'' "^P''"^ '» J .. { 1 • 1 1 1 1 ■ decide wlio custody ot the several title deeds relatmg to the said heredita- shall have the ments shall respectively belong and by whom and in what pro- ^'^''^ ^^^'^'^^' portions the expenses of any attested copies or covenants for production of deeds which may be necessary shall be borne [or " That if either of the parties to the said intended partition Expenses of should require an attested copy or attested copies of any of ^^p^^^t-^^ copies, . . *^ &'c. to be pciid, the title deeds or title deed in the custody of the other party hy the requir- to the said partition or to have a deed of covenant for the pro- "'° V'^'^^Y- duction of any such title deed or title deeds then and in such case the expense of making such attested copy or copies and the expenses attending the framing engrossing and executing such deed of covenant shall be paid by the party requiring the same"] And for the due execution and observance of the agreements Nomine pcenae. hereinbefore contained on the part of the said A. and B. the said A. and B. do hereby bind themselves their heirs executors and administrators the one to the other of them in the sum of pounds In witness &.c. The schedule to which the above agreement refers. K 2 132 AGREEMENTS. No. LXXV. Partition (Severalty). Recital of co- partnership. That the par- ties have made a division. Testatum. I. D. covenants to convey and assure to C, D. his share ; No. LXXV. Agreement between two Joint-Tenants to hold in severalty. Articles &c. Between I. D. of &c. of the one part and C. D. of (Src. of the other part Whereas the said I. D. and C. D. have for many years exercised and carried on in copartnership the trade of and as such partners have at different times purchased and acquired the several freehold and leasehold estates mentioned or referred to in the schedules hereunder written or hereunto an- nexed marked with the letters A. and B. and the same have been purchased and acquired by and out of the capital or stock in trade on account of the said copartnership or joint trade and they are beneficially entitled to the same estates in equal shares and proportions Ayid ivhereas the said partners are desirous of making an equal division of the said freehold and leasehold premises between themselves and for that juirpose have pro- ceeded to make a valuation thereof and having fully considered the nature and tenure of the different estates comprised in the said two schedules and the value thereof have mutually agreed that the estates mentioned and referred to in the said schedule marked with the letter A. shall from the day of now next ensuing be considered as the sole and exclusive estate and pro- perty of and shall henceforth be held in severalty by the said I. D. and that the estates mentioned in the said schedule marked with the letter B. shall be considered as the sole and exclusive estate and property of and shall henceforth be held in severalty by the said C. D. JVoiv these presents witness That in pursuance of the said agreement and for giving effect to the same and in consideration of the agreement hereinafter contained on the part of the said C. D. he the said I. D. doth hereby for himself his heirs executors and administrators agree with the said C. D. his heirs executors and administrators in manner following that is to say That he the said I. D. and every person claiming and to claim by from through or under him shall and will from time to time and at all times hereafter at the reasonable request and at the costs and char2:es of the said C. D. his heirs executors or admi- nistrators make and execute or join in making and executing all such acts matters and things assignments conveyances and as- surances in the law as shall be requisite and necessary for as- signing conveying and assuring the several freehold and leasehold hereditaments referred to in the schedule marked with the letter B. and all the estate right title and interest of him the said I, D. AGREEMENTS. 133 into and out of the same unto and to the use of the said C. D. No. Lxxv. his heirs executors and assigns according to the respective nature Partition and tenure thereof as he or they shall direct or appoint And '^'^'™ ^ further That in the meantime and until such conveyances assign- and in the ments and assurances shall be made or executed as aforesaid it "J-g" enjoy-'^ shall be lawful for the said C. D. his heirs executors administra- ™e»t. tors and assigns from time to time and at all times hereafter ac- cording to the respective tenures thereof peaceably and quietly to have hold occupy possess and enjoy the several freehold and leasehold estates specified in the said schedule B. and to receive and take the rents issues and profits thereof from the day of 18 for his and their own exclusive use and benefit w^ithout any let hindrance or interruption of from or by the said I. D. his heirs executors administrators and assigns or any other person or persons claiming or to claim by from through or under him them or any of them And these presents further witness Further testa- That in consideration of the agreement hereinbefore contained "'"' on the part of the said I. D. he the said C D. doth hereby for C. D. cove- himself 1 1 i 1 ^ of the said (C.) he the said (P.) doth hereby covenant and agree that he the said (P.) shall and will yearly and every year during the said term of years determinable as herein men- tioned well and truly pay unto the said (C) by half-yearly pay- ments on the day of and the day of the clear yearly sum of £ of &c. without any deduction whatsoever the first half-yearly payment thereof to be made on the and an allow- day of And shall and will always yearly and every year ance in propor- ^^^^r^^^, ^j^g g^id term pay (a) to the said (C.) over and above the tion to tlie c T 1 n -, -11 gains of the yearly sum of £ so much lawful money as will amount or "''^^' be equivalent to one th part of the clear gains or profits of or arisino- from the said trade or business so to be carried on by the said (C.) as managing clerk after deducting the said sum of £ and all other debts and dues which shall be paid or payable in respect of the said trade and also all losses and damages which shall happen to the said trade by reason of bad debts or otherwise And also in case of the death of either of them the said (P.) and (C.) during the said term shall and will pay unto the said (C.) his executors or administrators a pro- portional part of the said yearly payments so covenanted to be made to him as aforesaid from the last of such respective days of payment next preceding his decease up to the day of his Principal to be decease And finalhj it is hereby declared and agreed by and at liberty to between the parties hereto That it shall be lawful for the said dismiss clerk. J . . (P.) at any time to determine these presents upon giving unto the said (C.) three months' notice thereof in writing and on the (a) As to the perception of profits by way of remuneration, see ante, sect. 10. AGREEMENTS. 139 expiration of the said three months and the payment of what No. LXXVII. shall be due unto the said (C) every article clause and covenant Brewer and Mu- hereinbefore mentioned shall cease and be void anything herein " s^"S contained to the contrary in anv wise notwithstanding; In witness kc. No. LXXVIII. No.LXXVIII. Agreement between a Merchant, or Manufacturer, and a Factor. Merchant and Factor. Articles &c. Between &c. Witness That for the considerations Factor aorees &c. the said {Factor) for himself &;c. doth agree &c. that he *^^ ^'-^^^ charge the said {F.) shall and will during the term of years from sale. the date of these presents accept and take into his charge and trust all such goods wares and merchandizes as he the said (P.) shall send and consign to him the said {F.) and also shall and will use his best endeavours to sell and dispose of the same to the best profit and advantage A nd also that he the said {F.) Factor to rcn- shall and will keep a true account of all such goods as the said stated't'imesV" (P.) shall from time to time assign to him or that may come into his hands and of all sales barters and other transactions concerning the same and (a) shall every months make true payment and delivery unto the said (P.) his &c. of all such monies securities and other things as shall be received by the said (P.) for the said wares and merchandizes And at the to deliver up expiration or sooner determination of the said term shall and ""^old goods; will deliver up unto the said (P.) all such goods wares and merchandizes as shall remain unsold in the custody of the said (P.) And also that the said (P.) shall not nor will give credit not to give to any persons or person for a greater length of time than crecit; months without the consent in writing of the said (P.) And not to carry on also that he the said (P.) shall not during the said term deal or ^ny other trade. trade as a factor for any other person for the buying and scllin"- of any goods wares or merchandize whatsoever [_or " any wares or goods of a like kind," as the case may be] And the said (P.) Frlncipal in consideration of the said agency doth hereby agree with flfc'ioTa yt^arly salary. (a) If the fuctor bo ubroadsay, ''And slvall iinincdiatL'ly remit home to the said (P.) all monies bills and other securities received on account of such sales." 140 AGREEMENTS. No.LXXVIII. the said (F.) that he the said (P.) shall and will (a) pay unto Merchant and ^he Said {F.) yearly and every year the sum of £ so long '^-^-^ — as he shall continue the factor of the said (P.) under the present asreement In witness &c. No. LXXIX. No. LXXIX. J ^ent or Factor ^^ Agreement with an Agent for the Sale of Articles of Manu- {Sale of Goods). fcicture. Articles of Agreement entered into this day of in the year of our Lord 18 Between (the Principals) of (Sec. of the one part and {the Agent) of &;c. of the other Recital of ap- P^^"^ Whereas the said (P.) are agents and manufacturers of pointment of at their works at aforesaid and in order to ^^^" ' increase the sale of their said goods and commodities being desirous of keeping a stock of the various articles of their manufacture at for the London markets have agreed with the said {A.) to become their agent in disposing of the same Covenant by upon the terms and conditions hereinafter mentioned Now these agent to dispose jjycseMs icitness That for the considerations hereinafter men- of manufactures -^ , -, t t t n ^ • ir- i • i • consigned to tioned he (5) the said (^1.) doth hereby tor hmiselt his heirs ex- ecutors and administrators covenant promise declare and agree with and to the said (P.) and each of them respectively and their respective executors administrators and assigns that he the said {A.) shall and will during the term of years to be computed from the day of the date of these presents (but deter- minable nevertheless as hereinafter mentioned) accept and re- ceive all such o-oods wares and merchandize as shall be sent or consigned to him by the said (P.) or any or either of them (c) and carefully deposit the same in warehouses or other proper places him (a) Or, if it be so agreed, say "shall and will allow the said {F.) his exe- cutors or administrators the sum of £ for every 100 pounds' worth of goods sold and so in proportion for any less sum than lOOZ. by way of com- mission And also the annual sum of £ by way of salary for his trouble." Agents copart- {h) If there be several agents in copartnership, say "Tliey the said {A.) n^vs. for themselves severally and respectively and for their several- and respective heirs executors and administrators but not the one for the other of them or for the heirs executors or administrators or for the acts deeds or defaults of the other of them do and each of them dotli hereby covenant &c." as above. Copirtners. {(^) If copartners, say "And any other person or persons who may be co- partner or copartners with them or either of them for the time being," and so throughout. AGREEMENTS. 141 And also shall and will use his best endeavours and means to No. LXXIX. sell and dispose of the same at such price or sum or prices or ^^''"' "f Factor . 1 . ... , , [Sale of Goods ). sums as he shall be requn-ed m writmg by and under the hands of the said (P.) or any or either of them or for such further ^^ ^^^^ Pf''^'^' _ ' •' _ Sec, as prin- or other price or sum or prices or sums as can or ought to be cipals shall had or obtained for the same according to the rise or advance ^^^^ ' in the current or market price thereof and at the expense and costs of him the said (^-1) deliver the same to the several pur- chasers thereof and in all cases where he shall not receive any express directions relative thereto will so act therein as will to And in default the best of his judgment be most beneficial to them the said "jj best'o"his° (P.) And also shall and will from time to time on the first day judgment. of every month send and transmit to the said (P.) and to the survivors and survivor of them a full clear and correct state- ment in Avriting of all orders he shall have received and exe- cuted and of all goods which may have come to his hands and of all such thereof as he may have sold and to whom and whe- ther for ready money or on credit and likewise of all such other matters transactions and things as may in anywise con- cern the said agency business and which may have taken place during the preceding month And further That he the said (.4.^ Will not act as his clerks agents or servants shall not nor will without the con- ^.!'^^ ^^^"^ ^"^ _ o _ other persons. sent in writing of the said (P.) or the survivors or survivor of them first had and obtained at any time or times within the said period or term of years take or execute any order or direction for vending or disposing of nor shall nor will vend or dispose of or seek or endeavour to vend or dispose of any or other merchandize of the nature or kind aforesaid for or on account of himself the said (A.) his heirs executors administrators or assigns or for or on account of any joerson or persons whomsoever other than and except them the said (P.) their executors administrators or assigns Provided always if principals nevertheless that in case the said (P.) their respective executors '^'^ t ^ o s))ection ot tl>e relative to the matters aforesaid shall at all times durins; the principals. said term be and remain open and exposed to the free access and inspection of them the said (P.) their respective executors administrators and assigns or any or either of them who shall have free and unrestrained liberty and power as well during the continuance of the said term of years as at all reasonable times within the space of one month from the expiration or other determination thereof to transcribe and copy out the same or any parts thereof at his or their free will and pleasure either by themselves or himself or his or their respective clerks or agents and upon the final settlement and winding up of the said agency business shall and will give and deliver up the same books documents and writings undefaced and unobliterated to the said (P.) And it is hereby further agreed and declared by and Accounts to be between the parties hereto that they shall and will duiing the S'momhZ^ continuance of the said agreement on the day of VOL. 1. 146 AGREEMENTS. Agent or Factor {Sale of Goods). No. LXXIX. and the day of in every year or within the space of next thereafter (unless prevented by sickness or other unavoidable cause and then as soon after the removal of such cause as may be) settle and account together respecting the receipts and payments and other the matters and things relative to the said sale and disposition of the articles and things afore- said for which purpose a particular true and faithful statement or account in writing shall previously to such day of and day of in every year be prepared by the said {A.) and clearly written in a proper book or ledger of all receipts and payments and other dealings and transactions which shall have occurred or been had or entered into concern- ing the same and in such manner and form and to the intent that the real state and condition thereof may in all things fully and clearly appear and every such account and statement when admitted approved and signed by the said T)arties respectively and the balance due upon the foot thereof paid by the parties against whom the same may be shall at all times thereafter be binding and conclusive upon them and every of them and shall not afterwards be opened or unravelled unless some manifest error or mistake shall be discovered or appear therein within the space of twelve calendar months next thereafter one fair copy of which said account shall if required be delivered to and retained by each of the said parties for his own proper use and it is hereby agreed that in the settlement of every such account interest shall or may be charged by and allowed to the said {A.) upon all balances and arrears of balances although in any such balance or balances may be included interest upon any former Either party to balance or balances (a) Provided always and it is further dissolve the contract on notice. Settled ac- counts to be conclusive. Interest. Dissolution of agency. («) Tlie above clause for vacating the agreement between the parties may be as follows: — " Provided always and it is hereby also agreed that if the said {A.) shall at any time before the expiration of the said term of years be desirous of giving up the said agency business it shall and may be lawful for him so to do upon giving six calendar months' previous notice in writing of such liis intention to the said (P.) or the survivors or survivor of them or by leaving such notice at their or his usual place or places of abode And it is also agreed that if the said (-P.) or the survivors or sur- vivor of them shall at any time before the expiration of the said term of years be minded and desirous to discharge tlie said (^4.) from being such agent as aforesaid it shall be lawful for them or him so to do upon giving six calendar months' previous notice in writing to the said (A.) of such intention by leaving the same at the counting-house for the time being AGREEMEXTS. 147 agreed by and between all the said parties hereto that if any or No. LXXix. either of them be minded or desirous to dissolve the contract or ;:^"^"' "/ ^"f'"'- , . . {Sale of Goods'). agreement hereby entered mto at any time durmg the said term of years herein before limited for the continuance thereof and one of them shall oive six calendar months' notice in writino- under his hand unto the other of them of such his mind or desire, that then and upon such notice the said parties do hereby covenant and agree that from and after the expiration of the said six calendar months this present contract and these presents shall cease and determine anything herein contained to the con- trary thereof in anywise notwithstanding and then and in such case the said accounts shall be settled and adjusted by and be- tween the said parties to the day on which such notice shall expire in the same manner as if the same term had expired by lapse of time Provided always and it is hereby also agreed by Agent not to the said (P.) that the said (A.) shall not be answerable for anv ^ ^'i^^^'-'^^'e - tor involuntary loss or damage which may happen to any goods or merchandize losses, which shall be sent or consigned to him until or before the same shall come to his hands or within his custody nor for any loss or damage which may happen to any goods or merchandize which have actually come to his hands or custody or committed to his care or charge unless such loss or damage shall happen through his wilful default or neglect Aiid in furtherance of Power ofattor- these premises they the said (P.) have made ordained consti- '^2'° '''''^'''^ tuted and appointed and by these presents do make ordain con- stitute and appoint the said (A.) their true and lawful attorney for them in their names and for their use to sue for recover and receive all such sum and sums of money as shall or may be due or owing from any person or persons for or on account of any goods or merchandizes sold by him as their agent as aforesaid and to give receipts and sufficient discharges for the same (which said receipts and discharges shall exonerate all and every person and persons from being in anywise accountable for the application thereof) [And do hereby also give unto him the said (A.) full power and authority to depute and appoint any other person or persons under him for any of the pur])oses aforesaid] And it is hereby lastly agreed and declared by and between the Disputes to be parties hereto that in case any dispute or question shall arise '•r''^'' ^"'^ '" '"■- between them with respect to the carrying these presents into of the said (A.) or otherwise any thing licrein contained to the contrary not- withstanding." I. 2 148 AGREEMENTS. No. LXXIX. effect or otherwise in relation thereto the same shall be referred j4gent or Factor ^q ^-^^^ jjg decided by two indifferent persons («) one to be named (Sale of Goods). by the said (P.) and the other by the said {A.) and in case of difference between them then by any third person to be by such two persons named and the opinion of such two persons or of such third person or of any two of them shall be binding and conclusive upon each of the said parties hereto and their respective heirs executors and administrators and by them sub- mitted to accordingly without further controversy and which said submission shall be by mutual bonds and such other reci- procal stipulations as are usual or proper in like cases In wit- ness &c. No. LXXX. Broker. Witness that agent will take charge and sell, &c. and account for produce. No. LXXX. An Agreement with an Agent or Broker to take and dispose of Goods abroad. Articles of Agreement made and entered into this day of in the year of our Lord Between the {Principal) of &:c. of the one part and the {Agent or Factor) now at &:c. but about to proceed to beyond the seas of the other part Whereas the said (P.) has shipped with the said {A.) on board the good ship or vessel called whereof is master now bound to aforesaid divers goods wares and merchandizes to the amount and value of ster- ling or thereabouts and hath intrusted the same to the care of the said {A.) as his agent or factor to sell and dispose of the same at aforesaid upon the terms and conditions hereinafter mentioned Now these presents ivitness That the said (^1.) hath agreed and doth hereby covenant with the said (P.) as follows that is to say that he the said (A.) will take the said goods wares and merchandizes with him to aforesaid and there sell and dispose of or use his best means and endeavours to sell and dispose of the same to the best advantage and for the most money that can be obtained for the same And from time to time will remit home to him the said (P.) in good bills of Reference to (a) Or, if so agreed, " To the determination and final decision of of given person. ^^^ whose determination in writing under his hand shall he binding and con- clusive on all parties hereto and not to be litigated or questioned by either of them or their respective representatives." AGREEMENTS. 149 exchange or otherwise all sums of money which shall arise No. LXXX. from such sale and disposition with a true and faithfid account Broker. of the sales and prices of each and every of the same A nd Principal will the said (P.) doth hereby covenant promise and agree with and consignments, to the said {A.) that he the said (P.) will from time to time during the term of years to be computed from the day of the date hereof (if they the said principal and agent shall both so long live) but determinable nevertheless as hereinafter men- tioned on receiving from the said {A.) the remittances or pro- duce arising from the sale of the said goods wares and mer- chandizes ship and consign to him the said {A.) such further or other goods wares and merchandizes as will keep up a stock in the hands and custody of the said {A.) of or to the amount or value of sterling And the said {A.) doth Agent will sell hereby in like manner as aforesaid covenant promise and agree ^"^^^g°°'-' with and to the said (P.) that he the said {A.) shall and will from time to time during the said term of years deter- minable nevertheless as hereinafter mentioned sell and dispose of the said goods wares and merchandizes so to be hereafter shipped and consigned to him from time to time to the best advantage and for the most money that can be procured for the same And shall and will immediately thereupon remit home and remit the to the said (P.) in manner aforesaid all such sums of money ^"^°' ^^^' as shall or may arise from the sale or disposition thereof with a true and particular account of the sales and prices of the same respectively And also that he the said {A.) shall not nor Agent will not will during the said term of years purchase or receive for ^^^^^^ ^"^ sale any goods wares or merchandizes whatsoever in his own name or on his own account or in the name or on account of any other person or persons than of him the said (P.) A7id it is Agent to have hereby agreed and declared by and between the parties hereto <^o'"""'s^i°"- that he the said {A.) shall be entitled to and shall have and re- tain the sum of £ for every £100 (and so in proportion for any less sum) which shall arise or be made by or from the sale or disposition of the goods wares and merchandizes so now or hereafter to be intrusted to the care of or shipped and consigned to liim the said {A.) and also all necessary customary and reasonable expenses attending the same And the said {A.) A^ent will doth hereby further in the manner aforesaid covenant promise 1' accounts. and agree that he the said {A.) shall and will from time to time and at all times during the said term of years keep or cause to be kept all usual and proper books of account of 150 AGREEMENTS. No. LXXX. Broker. Principal or Lis ai)))oiiitee may inspect books. and concernino; all goods wares and merchandizes which he the said (A.) shall from time to time receive from the said (P.) and of all sums of money bills of exchange or other securities which he or they shall receive for or on account of the said goods wares and merchandizes And it is hereby further agreed and declared by and between the said parties hereto that he the said (P.) [oi- " his lawful attorney or attornies or appointee or appointees lawfully authorized in that behalf"] shall or lawfully may from time to time and at all times during the said term of years have at all seasonable times full and free liberty to inspect view and examine the books of accounts so to be kept by him the said (A.) as aforesaid and to take or cause to be taken any extracts from or copies of the same or any part thereof and that he the said (A.) shall and will from time to time produce the said books of accounts unto the said (P.) [and his lawful attorney or attornies or appointee or appointees] for that purpose Provided always [^^c. either party to dissolve contract on notice, ante, p. 146] In witness Sfc. No. LXXXI. Agent. Recitals. Witness agent to manage and trade with the present stock. No. LXXXI. An Agreement between a Tradesman and an Agent, for the Management of his Business, on the Retirement or during the Absence of the Principal. Variations where there are Sureties on the Part of the Agent. Articles of Agreement entered into and concluded upon this day of in the year of our Lord Between [the Principal) of &c. of the one part and {the Agent) of &c. of the other part Whereas the said (P.) being desirous of retiring from the active management of the said trade or business of [or if so, " being about to reside abroad for an uncertain period during which time he will be unable to attend to the management of the said trade or business of "] has agreed with the said (A.) to conduct and manage the same for the term of years [or " during the absence of the said (P.)"] upon and for the terms and conditions hereinafter mentioned Noiv these presents witness that for and in consideration of the covenants and agreements hereinafter contained on the part of the said {A.) to be performed the said (P.) doth covenant pro- mise and agree with and to the said (A.) that he the said {A.) AGREEMENTS. 151 shall and may during the term of years if they the said ^o. LXXXI. parties shall so long live [if so agreed, "and the said (P.) shall ^°^"^- so long continue to reside abroad"] (unless the said term shall sooner cease under the proviso for that purpose hereinafter contained) to be computed from the date oi' these presents deal and trade with and sell and dispose of the stock in trade of him the said (P.) now in &c. and manage and improve the same in such manner as to him the said (^4.) (under the direction of the said (P.) when given and in default thereof then of his own discretion) shall seem meet And that he the said (A.) shall and And purchase may by and out of the money which shall arise by such sale dis- ° ^" ^°° position or dealing with the said stock in trade from time to time purchase and procure by ready money or on usual credit such other goods or merchandize as shall be requisite to keep up and continue the said stock in trade of a like nature or description of goods wares and merchandizes and of equal quantity and quality And by and out of the proceeds which shall from time Out of proceeds to time arise from all and every or any of the said sales dispo- "P^y^^" • sitions and trade and dealing do and shall in the first place well and truly pay the yearly rent of the house shop and warehouses whereon or in which the said trade or business now is or for the time being shall or may be carried on together with all parlia- mentary and parochial taxes rates and duties which now are or for the time being shall be payable for or in respect thereof and such sums of money as may be requisite to perform the several covenants and agreements on the tenant's part to be performed in relation thereto And in the next place do and shall pay (a) To pay princi- to him the said (P.) or his assigns yearly and every year P^' ^" a"""")'- during the said term one clear annuity or yearly sum of by equal half-yearly payments on the day of and the day of in each year without any deduction or abatement whatsoever And subject thereto do and shall or Residue for lawfully may retain- the residue and surplus of the said profits ^S^"*- [or " the sum of £10 per cent, upon the gross produce of the said stock and trade or business"] to and for his own sole use and benefit as a recompense and satisfaction for his care and (a) If the agent is to have a salary out of the proceeds, say, " And in the Salary, next place do and shall retain unto and for himself the said (^1.) out of and from the proceeds and receipts of the said trade or business the clear annual sum of £ by equal quarterly payments on &c. in every year to and for his own use and benefit by way of salary or recompense for his time trouble and attention in or to the same." 152 AGREEMENTS. No. LXXXI. Agent. A,s;ent uill be faithful. Will keep ac- counts. Agent will not trade on his own account. Agent will ac- count once a year. trouble in the sale and management of the said stock and con- ductino- the said trade or business (a) And the said {A.) in consideration of the premises aforesaid doth hereby covenant and agree with the said (P.) that he the said {A.) will at all times during the said term of years to be computed and determinable as hereinafter mentioned diligently apply himself to the care and management of the said stock trade and busi- ness according to the best of his skill abilities and judgment and apply and dispose of the money which shall arise there- from in the manner hereinbefore expressed or declared concern- ino' the same and according to the true intent and meaning of these presents And also shall and will from time to time during the said term make true and correct entries in proper books of account to be kept for that purpose of all goods wares and merchandizes and stock in trade which shall from time to time be purchased or sold and of all monies which shall be paid and received for or on account of the same and shall and will at all seasonable times in the daytime permit the same to be inspected and copies of or extracts taken from the same or any part thereof by the said (P.) or such other person or persons as he shall lawfully appoint for that purpose And further That he the said {A) shall not nor will at any time during the said term or during such part thereof as these pre- sents shall continue in full force and effect directly and openly or indirectly and privately buy or sell or in anywise trade or deal in the trade or business of &c. or any of the goods com- modities or articles now or heretofore customarily dealt in by the said (P.) in the name or on account of himself the said {A,) nor otherwise than in the name of the said (P.) only and for the ends and according to the true intent and meaning of these presents nor shall nor will do any act or thing whatsoever whereby the said present or any future stock in trade or any part thereof shall or may be attached extended or taken in execution or otherwise prejudicially affected And /:dso That at Christmas next and also at every succeeding Christmas during the continuance of the said term determinable as here- inafter mentioned or oftener if thereto required by the said (a) If the surplus is to be paid to the principal, say, " And do and shall well and truly account for and pay over the residue or surplus of the net gains or profits if any by half yearly payments unto him the said (P.) his executors administrators or assigns to and for his and their own use and benefit." AGREEMENTS. 153 (P.) he the said (A.) shall and will state and make out a full No. LXXxr. account and statement in writing of the stock then being in ^gent. the said trade and also of the profits of the said trade during the preceding year and deliver the same under the hand of him the said (A.) to the said (P.) in order that the exact and true state of the said business in all respects may appear And Agent will, at that at the expiration or other sooner determination of the said orteTnrckl'°ver term of years he the said (A.) shall and will deliver up up stock in to him the said (P.) the stock then remaining on hand and all books of account securities vouchers and documents relative to the said trade or business for his or their own use and benefit and which said stock in trade shall then be or be made up by the said (A.) of the value of losses by bad debts delay of goods and other inevitable casualties only excepted [Add proviso for vacating the agreement on notice bg either party, ante, p. 146, and clause referring diffei^ences to arbitration, Sfc. (a)] In witness Sec. No. LXXXII. No.LXXXII. Agreement to form an Association for the Prosecution of Prosecution of Offenders {b). ''^"''"''- Articles &c. Between A. B., C. D. and E. F. of the one part and the other persons whose names are hereunto sub- (a) If there be sureties on the part of the agent, add, " And the said (S.) Sureties. hereby jointly and severally agree to pay and satisfy to him the said (P.) any damage or loss he may sustain in consequence of any breach of this agreement on the part of him the said {A.) by giving credit for goods sold or delivered so as the same shall not exceed the sum of £ which said sum of £ or such part thereof as shall at an}' time appear to be deficient it is hereby agreed shall be considered a debt due from each and evcrj' or eitlier of them the said (.S'.) and shall and may be recovered and recoverable in any court of law or equity in the same manner as any other debt or debts con- tracted by him or them are or may be recovered And it is hereby further arjreed by the said (A. and S.) that in case the payments to be made to the said (P.) shall at any time be in arrear for twenty-one days he the said (P.) shall be at liberty to sell and dispose of all or any of the household goods furniture and other effects of him the said (A.) for and towards the payment and satisfaction of such arrears in such and the same manner as if the same household goods furniture and otlicr effects had been and were tiie actual property of him tlic said (P)." (b) See a fuller form for this purpose in 1 Jarm. Conv. by Sweet. 154 AGREEMENTS. No.LXXXII. Prosecution of Offenders. Parties mu- tually agree to assist in bring- ing offenders to justice ; to authorize certain attor- nies to prose- cute ; to offer rewards for detecting offenders, and procure a pardon for ac- complices; and to sub- scribe for de- fraying the ex- penses ; scribed of the other part &c. Whereas robberies and felonies have of late become very daring and frequent within the town- ship of in the county of and the neighbour- hood thereof and it is deemed absolutely necessary to enter into an association for the prosecution of offenders Now we whose names are hereto subscribed do hereby each for himself and herself promise and agree with and to the others of them That we will use our utmost and best endeavours to apprehend all and every person and persons whomsoever who shall be guilty of or commit any robbery burglary larceny felony or other cri- minal offence against the person or property of us or any of us or by means whereof we or any of us or of our property shall be affected or injured And shall and will prosecute to con- viction all such offenders And for that purpose we do hereby nominate appoint and empower M. W. and C. H. attornies at law or either of them but nevertheless under the direction and control of the committee hereinafter mentioned to take and use all lawful ways and means to prosecute convict and bring to justice all and every such offender or offenders And we agree for the better discovering and bringing to justice of such offend- ers that we will give such reward to any person or persons who shall inform and give evidence against such offender or offenders as shall be thought proper by the committee to be constituted as hereinafter mentioned And in case it shall be necessary that we will use our best endeavours to procure a free pardon for any accomplice or accomplices who shall be concerned in any of the offences aforesaid and shall make a full discovery and give evidence thereof so that one or more of such other offender or offenders may be convicted and brought to justice on such information and discovery {a) And for the purposes aforesaid we do hereby further agree for the present to advance and sub- scribe the sum of shillings to defray the expenses of prosecutions and rewards and such other necessary and inci- (a) If the expenses are to be raised by a rate, say, ''And for the purposes aforesaid we hereby agree that all costs charges and expenses whatsoever which shall be incurred and sustained in any manner in or about the prose- cution of such offenders and carrying the present agreement into effect shall be paid and raised by us and every of us jointly by an equal and propor- tional pound rate and assessment in proportion to the yearly value of the messuages lands tenements and hereditaments by us respectively held and oc- cupied within the said township according to the value at which the same are rated for the relief of the poor within the same townshij)." AGREEMENTS. 155 dental expenses as shall or may be incurred thereby and also No.LXXXll. from time to time whenever required to advance and subscribe Prosecution of 1 /. 1 ,. Offenders. such iurther sums of money for the purposes aforesaid as the said committee shall deem expedient in that behalf And that all the costs charges rewards and expenses whatsoever which shall be incurred and sustained in any manner in or about the prosecution of such offenders and in carrying this agreement into effect shall be paid out of the said subscription-funds which shall be lodged in the hands of I. H. and Co. bankers for the purposes aforesaid And it is hereby mutually agreed by and toelectacom- between the parties hereto that any five of the same parties to ^u^Uy ^"" be elected annually out of the whole number at a meetino- to be convened for that puipose shall be a committee for the time being who shall have the sole management and direction of the association which said committee is hereby authorized and em- powered to make such further and other orders and regulations for effecting the purposes aforesaid as they or three of them shall deem expedient and necessary Provided always that this association shall extend only to persons and property residing and being within the said township and neighbourhood and five miles thereof and not elsewhere any thing hereinbefore contained to the contrary thereof in anywise notwithstanding («) As wit- ness our hands this day of 18 (a) Also add, if necessary, Provided further that if any of us whose names are hereunto subscribed shall at any time hereafter leave and depart from the said township and sliall not hold occupy or enjoy any messuages lauds tene- ments or hereditaments within the same township then we so departing shall be immediately discharged from this agreement on paying up his her or their proportion of expense thus incurred (if any) in carrying into effect the i)ur- poses of the said association." 156 AGREEMENTS. AGREEMENTS FOR THE SALE AND PURCHASE OF ESTATES. 1. Agreement must be in Writing. 2. Agreement ivhen void or otherivise. Construction of Agreements for Sale. 8. Stipulation as to the Title. 4. As to necessary Parties. As to subsisting Leases. Consideration. JExpejise of preparing Convey- ance. 5. 6. 7. 8. Consequences of the Contract. JRepresentatives of Vendor must complete Contract. Liability of Purchaser. Purchaser entitled to interme- diate Profits. Time of the Essence of the Con- tract. 9. Penal Clause. binding Agreement not Sect. 1. By the Statute of Frauds, an agreement for the sale of an estate of any lands, tenements or hereditaments, or any interest in or concerning the same, will not be binding until it is reduced into writing, even although a deposit has been paid, Blagden v. Drud- hear, 12 Ves. 466 ; but a note or letter will take a case out of the statute, FordY. Complin, 2 B. C. C. 32. An agreement for the sale of timber or potatoes growing upon the land has been held not to be within the statute, because they are mere chattels, and the contract does not confer any exclusive right to the land for a time. Hob. 173 ; Ld. Raym, 182; Parker v. Stanniland, HE. 362; EmmersonN. Heelis, 2 Taunt. 38. Where there is an agreement for the sale of real and personal property together, it is held to be an entire contract; and if void as to the land will be void in toto, Couke v. Tombs, 2 Anst. 425; see further 1 Sugd. V. & P. 142, ct seq. 10th edit.; also Crabb's Dig. p. ii. tit. Frauds (Statute of;. 2. An agreement for a sale ought to be drawn with great care, so as to contain every important particular. Nothing can be added by parol evidence to supply an omission in an agreement after it has been correctly reduced into writing, provided it was drawn according to the intention of the parties at the time, Omerod v. Hardvian, 5 Construction of Ves. 730. Neither in the construction of agreements will the acts of agreements for ^.j-^g parties, tending to show their own conception of the meaninix, be taken into consideration, Clifton v. Walmesley, 5 T. R. 564; Iggul- den V. May, 7 East, 237 ; 9 Ves. 325 ; see further as to how far parol evidence is admissible to vary or annul written agreements, 1 Sugd. V. & P. chap. iii. sect. viii. ix. ; Dig. p. ii. tit. Frauds (Statute of). 3. Notwithstanding the clause, '* Provided the title be approved by the purchaser's counsel," yet, if it appear to a Court of Equity to be good, a purchaser will be bound to comj>lete the contract, Agreement when void or otherwise. Stipulation as to the tide. AGREEMENTS. 157 altlioiigli it may be objected to by his counsel, Lewis v. Lechmere, Sale of an 10 Mod. 505; Cawfield v. Gilbert, 4 Esp. 221 ; unless it be other- Estate^ ^ wise expressly stipulated by the parties. 4. As to the words " necessary parties," usually inserted in agree- As to necessary ments, they are particularly important when the estate is purchased P^'" '^^" of trustees or executors, as without such stipulation, it appears that a purchaser cannot insist on any of the cestui que trusts being parties, nor upon any other covenants fi'om the trustees or executors, except that they have not incumbered, Waheman v. Duchess of Rutland, 3 \es. 236, 505. 5. If a person contract for the purchase of an estate with notice As to subsist- of a subsisting lease, he will be considered conusant of the contents ^ of the lease, and be bound by his contract, although such lease should contain covenants contrary to the custom of the country. A purchaser ought, therefore, either to inspect the lease, or obtain a covenant from the vendor, that it contains such covenants only as are justified by the custom of the country, Taylor v. Stihbert, 2 Ves. jun. 440 ; Daniels v. Davison, 16 V^es. 249 ; Bailetj v. Richardson, 9 Hare, 734; 3 Sugd. V. & P. 449, 10th edit., 1052, 11th ed. 6. The consideration in an agreement for the sale of an estate must Consideration, be either cei-tain or reducible to a certainty. A contract for the sale of an estate at so many years' jnirchase, or at so much per acre, in- stead of a specified sum, has been deemed a sufficient certainty of price, 3Iilnes v. Gerij, 14 Ves. 408; Shannon v. Bradstreet, 1 Sch. & Lef. 73. 7. The expense of preparing a conveyance must, according to the Expense of established practice of the profession, be borne by the purchaser, if ^!^y||',"^'g_^ ''""" there is no express stipulation to the contrary, 2 Ves. jun. 155. And it appears also now lo be decided, that he must prepare and tender the conveyance to the vendor, Baxter v. Lewis, Forr. 61 ; 1 Sugd. V. & P. 376, 10th edit,, 262, 11th ed. But, as this is a doubtful matter, it ought to be expressly stipulated in the agreement. 8. Where an agreement has been entered into to sell an estate, the Consequences heirs of the vendor are bound by the contract, although not expressly °' *'"^ contiact. named. Gill v. Vermnden, 2 Freem. 199. By 11 Geo. 4 & 1 Will. Rei)reseuta- 4, c. 60, s. 16, the i-epresentatives of any deceased vendor, wei-e to ^^^.^^^^ vlmior be trustees for the pui'chaser after a decree for a specific perforin- must complete ance; so likewise persons in whose names purchases are made; so, ^^oi'^ract. by 8. 17, tenants for life, &c., of estates devised in settlement might be directed to convey after a decree for specific performance, see 13 & 14 Vict. c. 60, s. 30; and by 11 Geo. 4 & 1 Will. 4, c. do, s, 27, committees of lunatics are authorized to convey in perfoimance of covenants under direction of the Lord Chancellor. By the 4 & 5 Will. 4, 0.23, 8.2, if a mortgagee or trustee ol' any land died williout an heir, the Court of Chancery might appoint a person to convey, see 13 & 14 Vict. c. 60, ss. 15, 19.^ By the 5 & (5 Will. 4, c. 17, 158 AGREEMENTS. Sale of an Estate. Liability of purchaser. Purchaser en- titled to inter- mediate profits. the act of 1 Will. 4, c. 65, so far as extends to the renewal of leases, which any person of full age and not under disahility would be com- pelled to renew, is extended to Ireland. By the 1 & 2 Vict, c, 69, when the money due on mortgage had been paid to the executor or administrator of a deceased mortgagee, who should have died without being in possession of the land, or in receipt of the rents and profits, the Court of Chanceiy was empowered to appoint a person to convey in the place of an heir or devisee who should be out of the jurisdiction of the Court, or of whom it might not be known whether he were living or dead, or who might refuse to convey. The stat. 11 Geo. 4 & 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23; and 1 & 2 Vict. c. 69, are now repealed by 13 & 14 Vict, c 60, s. 1. But by 13 & 14 Vict. c. 60, the Court of Chancery is authorized to make ordei-s conveying lands vested in lunatic or infant trustees or mortgagees, or in trustees out of the jurisdiction of the Court, or in several trustees, of whom it shall not be known which survived, or when it shall be uncertain whether the trustees last seised be living, or when the trustee last seised shall have died intestate and without an heir, or when it shall not be known who was his heii' or devisee, or where a trustee ]'efuse to con- vey, or in the place of the heir or devisee who shall be out of the jurisdiction of the Court, or who cannot be found, or who shall refuse to convey, of any mortgagee who shall have died without having entered into possession, or in the case of such mortgagee having died intestate and without an heir, or of its being unknown who is his heir or devisee. In all cases under the last-mentioned act the Lord Chan- cellor or Court of Chancery may appoint a pei'son to convey instead of making an order conveying the land. See 15 & 16 Vict. c. 55, to extend the provisions of " The Trustee Act, 1850." See Shel- ford's Real Prop. Stat. pp. 605—634, 6th edit. So a purchaser, being considered in equity to be owner of the estate from the time agreed on for completing the contract, is liable to any loss which may happen to the estate between the agreement and the execution of the conveyance, Puine v. Meller, 6 Ves. 349; 1 Sugd. V. & P. 277, 10th edit. If, thei-efore, the subject of the contract be that which may be destroyed by fire, it is prudent to stipulate, either that the purchaser should insure, or that the vendor should keep on the in- surance. By the same rule, a purchaser will be entitled to any benefit which may accrue to the estate in the intermediate time ; as if a per- son agi'ee to give an annuity for the life of the vendor, or other con- tingent consideration for an estate, and the vendoi' die before the conveyance is made, the purchaser will be entitled to a specific per- formance of his contract, unless it be expressly stipulated to the contrary, Mortimer v. Capper, 1 B. C. C. 156; Jackson v. Lever, 3 ib. 605 ; 9 Ves. 246. Another consequence of the general i-ule in equity, that what is agreed to be done is considered done, is, that the purchaser who contracts for the purchase ol'an estate will be entitled Estate. AGREEMENTS. 159 to the rent, and the vendor to interest for his money, until the execu- Sale of an tion of the conveyance, Seto7i v. Sladc, 1 Ves. 274. But as tlie rate of interest to be paid by the purchaser is not fully settled, and frequent disputes arise on account of the delays on one side or the other, it seems desirable that these points should be determined by some ex- press stipulation, Sugd. V. & P. Ch. XVI. s. 1. Another conse- quence of the rule above mentioned is, that an agreement to surrender copyhold lands -will o])erate to bar the widow's free-bench, although the husband die before the surrender is perfected. Hinton v. Hinfon, 2 Ves. 631 ; Brorvn v. Rainclle, 3 Ves. jun. 256; but as to dower, see Dower. In sales b}' private agreement it is usual to fix a time for Time of the essence c ' contract. completing the contract. By express stipulation time may be made '^^^'^"'^^ °' '^"^ of the essence of the contract. Sugd. V. & P. pp. 305, 306, 11th ed. 9. As to the penal clause very frequently inserted in agreements of Penal clause. this kind, see ante, Agreements, sect. 9, p. 80; see also further, post, Purchases. No. LXXXIII. N0.LXXX11I. A qreement for the Sale of a Freehold JEstate. ^"^^ "^ ^ J ■> Freehold. Articles &c. Between {Vendor) of &c. for himself his heirs (f/) Parties. executors and administrators of the one part and {Purchaser) of (Src. for himself &:c. {h) of the other part Witness That the Vendor agrees said (F.) doth hereby agree with the said (P.) to sell to him '° ^'^'l' the said (P.) All those messuages lands &:c. {parcels) with the appurtenances for the sum of £ (c) to be paid at the time and in the manner hereinafter expressed Ayid that he the said {V.) shall and will within weeks from the date hereof at to furnish ab- his own expense furnish the solicitor of the said (P.) with a stract ot title; fiill and satisfactory abstract of the title of him the said {V.) to the whole of the said premises And will also at his own expense deduce a clear title thereto {d) And also that he the (a) As to the word " lieirs," see a?ite, Agrekmekts, Pref. sect. 2. (6) Or " by bis attorney or agent." {c) Or, if it be so iigrcecl, say "after the rate of years' piircliase accord- ing to the present annual value of ." Or "for an annuity or clear yearly rent-charge of £ payable to the said {V.) during his lite by half-yearly payments on the day of and the day of anil to be cliarged on the said premises and further secured by tlie bond of the said (P.) with a warrant of attorney fur entering up judgment thereon." As to the considera- tion, see ante, sect. 6- {d) Further provisions are sometimes made as to objections and evidence of title. "Tliat the said {V.) shall on or before the diiy of deliver or 160 AGREEMENTS. said (F.) or his heirs and all other necessary parties (a) shall and will on or before the day of next ensuing (b) on receiving from the said (P.) his executors or administrators the sum of £ at the request costs and charges of him the said (P.) his executors &c. execute a proper conveyance for conveying and assuring the inheritance and fee-simple of and in the said messuages lands and hereditaments with the appurtenances unto the said (P.) his heirs and assigns free from all incumbrances (c) In consideration whereof the said (P.) hereby agrees with the said {V.) That provided the counsel of the said (P.) shall ap- prove of the title of the said {V.) to the said premises he the said (P.) his heirs executors administrators or assig-ns on the execution of such conveyance as aforesaid shall and will (cZ) pay the said sum of £ unto the said {V.) his executors or administrators (e) AjicI it is hereby further agreed by and cause to be delivered to the said (P.) or his solicitor an abstract of the title of him the said (F,) to the said freehold messuage or tenement and premises and that all objections and requisitions in respect of such title shall be made b}' the said (P.) or his solicitor and sent by him to the said office of the said Mr. within daj's from the delivery of the abstract And all objections or requisitions which shall not be made within such time as aforesaid shall be Production of considered to be waived That the production and inspection of any deeds or No.LXXXIlI, Sale of Freehold. that necessary parties shall join in exe- cuting convey- ance. Purchaser agrees to pay purchase- money. Objection to title, when to be delivered. deeds, &c. What to be evidence. Other documents not in the possession of the said (F.) and the procuring and making of all certificates attested ofi^ce or other coj)ies of or extracts from any deeds wills or other documents and of all declarations or other evidences whatsoever not in his possession which may be required whether for the purpose of verifying the abstract or otherwise shall be at the expense of the said (P.) That all recitals and statements contained in any deeds wills or other instruments of title dated twenty years or upwards prior to the date of this agreement shall be deemed conclusive evidence of the facts and matters therein recited or stated." (a) As to necessary parties, see ante, sect. 4. {h) If the consideration be an annuity, say " on having the said annuity secured to the said (F. ) in manner as aforesaid." (c) If there be subsisting leases, and if it be so agreed, say, " except only leases at rack-rent not exceeding years and containing only usual cove- nants," see ante, sect. 3. {d) If the consideration be an annuity, say, " well and effectually grant the said annuity or clear yearly sum of £ unto the said (T'.)aud secure the same upon the premises in manner as aforesaid." (e) If there be timber to be taken at a valuation, say, ^^And shall and will also pay for all the timber growing on the said estate such sum of money as the same shall be valued at bj^ two indifierent persons to be chosen the one by the said (F.) and the other by the said (P.) or an umpire to be chosen by them In which said valuation it is agreed that all trees which shall be of the value of or upwards shall be accounted timber And in case it AGREEMENTS. 161 between the said (F.) and (P.) as follows viz. that the said No.LXXXiii. conveyance shall be prepared by and at the expense of the ^"^^ "f said (P.) except a release of incumbrances or an assignment of outstandinp; terms if not before assigned A7id that the Conveyance at ^ o purchaser s ex- same shall be settled and approved of on tlie parts of the said pense. (F.) and (P.) by their respective counsel And that each of Vendor to pay them the said ( V,) and (P.) shall pay the fees of his own counsel ^^^^^ J^y/'' ^ And that the rates taxes and outgoings payable for or in respect of the said premises to the day of shall be dis- charged by the said (F.) his executors and administrators And Purchaser to also that the said (P.) his heirs or assigns shall have receive &c."from'th? and take the rents and profits of the said messuages and pre- same day. mises from the day of next ensuing for his and their own proper use And {a) if the said conveyance shall Purchaser to not be executed by the necessary parties and the said purchase- Ivom'a^siven money not paid on or before the said day of then day. the said (P.) shall from the same day pay interest for the said purchase-money (b) at the rate of £ per centum per annum And further that any trifling error or omission which may appear to have been made with respect to the quantity or other description of the said premises [so that the same be not essen- tially different in quality from those herein described] shall not vacate the contract but a reasonable abatement shall be made by the said {V.) his executors &c. And further that any loss or damage which may happen to the said premises by fire or otherwise or any benefit (c) which may accrue to it between should be necessary to postpone the valuation until the fall of the leaf that the said (P.) shall give to tiie said (F.) a bond in a sufficient penaltj' con- ditioned for the payment of the sum at which the said timber shall be valued within one calendar month after such valuation." (a) Or, if it be so agreed, say, ^' And'ii the said (F.) shall not deliver an Time the es. abstract of his title to the said (P.) or his solicitor before the expiration of ^'^^'^^ o^'^'^*^ one calendar month from the date hereof or if in the opinion of the counsel of ^""'"'^'• the said (P.) he the said (F.) shall not deduce a good and marketable title to the whole of the said premises then or in either of the said cases this pre- sent contract shall at the ojition of the said (P. ) be to all intents and ])ur- poses void and all reasonable expenses incurred by him in investigating the title shall be borne by the said (F.) his heirs executors or administrators." A similar provision may also be inserted in case the purchase-money be not paid on the day iijjpoirited. As to the consequences of the contract, see ante, sect. 8. {b) As to the payment of interest, see ante, sect. 8. (c) As to the consequences of the contract in this respect, see ante, sect. 8. VOL. I. HI 162 AGREEMENTS. No.LXXXIir. Sale of Freehold. the date of these presents and the completion of the purchase shall not in anywise affect or vacate this contract {d) In witness whereof the said {V.) and (P.) have hereunto set their hands the day and year first above written. No. LXXXIV. Anotlier {short Form). No. LXXXIV. Another {short Form). Memorandum of an agreement made the day of Between &c. The said (F.) in consideration of the sum of £ of lawful money of Great Britain to be paid to him by the said (P.) and also of the agreement hereinafter mentioned doth agree with the said (P.) that he the said (F.) shall and will at his own cost and charges make out a good title and at the costs and charges of the said (P.) convey and assure to him and his heirs in such manner as counsel shall advise a good estate in fee-sim]3le in All the allotment or allotments to be allowed and set out to him upon the commons or waste grounds of N. in the county of by the commissioners empowered by an act of parliament lately passed for the inclosure thereof for or in respect of all his the said (F.'s) estate in the commons aforesaid And the said (P.) doth hereby agree with the said (F.) That he the said (P.) shall and will at his own expense prepare such conveyances and assurances as aforesaid and also when and as soon as the said commissioners shall make and execute their award pay to the said (F.) the sum of £ as and for the purchase-money And also shall and will pay and discharge all sums of money which shall be occasioned by the obtaining the said act of parliament And also all the charges of dividing allottino- and settino- out the said allotment so con- tracted to be sold as aforesaid and of the award to be made by the said commissioners touching the same which the said (F.) would have been or shall be liable to pay in respect of the said allotment As witness our hands. (d) If it be necessary, say, " And further that if any of the title deeds or writings relating to the said premises shall be found to concern other pro- perty of the said (F.) they shall be retained by him on his delivering at his own expense true and attested copies duly stamped and on his entering into the usual covenant to be prepared at his own expense for producing the originals.' AGREEMENTS. 163 SALE OF COPYHOLD ESTATES. 1. Agreement to sell defeats Free- bench. 2. Purchaser to pay Expense of Admittance. 3. Steicard authorized to demand Fines. 4. To prepare Swrender. Sect. L A widow will be defeated in equity of her free-bench of Agreement to lands, of which her husband died seised, by his agreement for the f^} '•'^f'^a^s sale, although he die before the surrender, Hinton v. Hinton, 2 Ves. 63L 2. In the absence of any stipulation to the contrary, the expense of Purchaser to the surrender and admittance, including the fine to the lord, which is ^''1^ expense of 11 'ii- -n Ti/..-ir ^ admittance. not payable until admittance, Mex v. Ld. of the Manor of Umdon, 2 T. R. 484, must be borne by the purchaser, Drury v. Mann, I Atk. 96, although the vendor agrees to surrender at his own expense, Graham v. Sime, 1 East, 632. But if the vendor have not been previously admitted, he must bear the expense of his own admittance, in order to enable him to make a surrender to the purchaser, 1 Atk. 96, n. 3. The 48 Geo. 3, c. 149, s. 34, authorizes stewards, previously to Steward autlio- the acceptance of any surrender, or the granting or making of any rized to demand admittance, voluntary grant, or licence to demise in court, to demand the payment of all lawful fees for the same, and for the copy of court- roll to bo made thereof, with the stamp duty payable on such copy of court-roll. 4. Whei-e it is the custom of the manor for the steward to prepare To prepare the surrender, he may insist upon so doing, Rex v. Rlgge, 2 B. & Aid. surrender. 550. No. LXXXV. No. LXXXV Agreement for the Sale of a Copyhold Estate of Inheritance. Sale of Articles &:c. Between &:c. Witness That the said (Vendor) (a) vendor a olds. Vendor agrees to furnish ab- stract, and to surrender pre- mises ; and enter into covenants for title. Purchaser agrees to pay purchase- money and expenses, &c. deliver unto the said (P.) within one month from the date hereof at his own expense a full and satisfactory abstract of the title of him the said (F.) thereto And also that he the said {V. and all other necessary parties (if any) shall and will on or before the day of next ensuing duly surrender the said premises according to the custom of the said manor to the use of the said (P.) his heirs and assigns or as he or they shall direct to be hoi den at the will of the lord of the said manor free from all incumbrances whatsoever except the quit-rents and the cus- tomary dues and services from the day of And that the said ( V.) shall at the time of such surrender enter into the usual covenants for the title And the said (P.) doth hereby promise and agree That on such surrender beino; made and such cove- nants being executed as aforesaid he the said (P.) shall and will pay to the said (F.) the said sum of £ of &c. And shall pay the (b) expenses of the said surrender (c) and all fees (d) and fines upon the surrender and admission of the said {P.) to the said premises and that the said deed of covenants shall be pre- pared by and at the expense of the said {P.) [See other pro- visions, ante, p. 161] In witness &c. No. LXXXVI. Purchase by Asent. No. LXXXVI. Agreement for the Sale of a Freehold and Copyhold Estate to an Agent. Obs. As to when an agent must be authorized by a writing and when by parol, see ante, Pi'ef. Principal and Agent. Articles Sec. Wit7iess That the said ( Vendors) do hereby agree with the said {Agent for purchaser) as agent as aforesaid to sell to him and the said (A.) as such agent doth* hereby agree to purchase of the said (F.) All that freehold and copyhold mes- suage or tenement and farm with the barn stables yards gardens orchards lands meadows pastures feedings commonage timber and other trees rights members and appurtenances thereunto be- longing which premises are situate at &c. and contain by survey 24 acres [and which said lands are to be taken at that measure- ment be the same more or less] and are now in the occupation (b) As to expenses, see ante, sect. 2. (c) Preparing surrenders, see ante, sect. 4. (d) Payment of fees, see ante, sect. 3. AGREEMENTS. 165 of &c. or their undertenants at or for the price of £ No. LXXXVI. whereof £ have been paid by (A.) before the execution Purcjiase by . Agent. of these presents to the said {V.) as they do hereby respectively acknowledge Anclihe said (T^.) do hereby further agree with the said {A.) as such agent that they the said {V.) shall at their expense deduce a clear title to the said hereditaments and pre- mises and shall on or before the day of next on receiving from the said (Purchaser) or (A.) or either of them the sum of £ residue of the said purchase-money at the costs of the said (P.) or (A.) execute at aforesaid a proper con- veyance surrender and assurance to be settled by their respective counsel for conveying and assuring the fee-simple and inherit- ance of the same premises unto the said (P.) his heirs or assigns or unto such person or persons as he or thev shall appoint free from all incumbrances except the land tax of and a quit rent of payable to the manor of at And the said (A.) as such agent as aforesaid hereby agrees with the said (1^.) that he shall &c. [pay 'purcliase-money) And it is hereby agreed by and between the parties hereto that all taxes rates and outgoings payable for the said premises on the said day of shall be paid by the said {V.) And that the said (P.) shall be put in quiet possession of the premises at that time and be entitled to the rents and profits thereof thenceforth And also that the said (P.) shall be entitled to take the growing crops of corn hay and clover at a valuation to be made thereof by two indifferent persons one to be chosen by the said (V.) and the other by the said (P.) or in case they shall disagree then by a third person to be chosen by such two persons such valuation to be made and concluded between the day of and the day of next and immediately after the completion thereof possession of the said crops shall be delivered to the said (P.) upon the paying to the said (F.) a deposit of £ per cent, in part of the amount of such valuation [and giving secu- rity for payment of the remainder thereof on the said day of next] but in case the said (P.) shall decline to take the said crops then the said (F.) shall be at liberty either to harvest or sell the same by public auction or private contract And it is further agreed that the said (7^.) shall pay [for certain fixtures enumerated'\ also for the muck mixtures or compost and the labour also for all such other things as are customary between an outgoing and incoming tenant as the same shall be agrcetl upon and valued by the said two indifferent persons or third person 166 AGREEMENTS. No. LXXXVI. as aforesaid And that such valuation shall be made three weeks before Michaelmas and the amount thereof paid to the said (K) on the said day of In witness &c. Purchase hy A sent. Received the day and year first above written of and from the said (P.) by the hands of the said {A.) as such agent aforesaid the sum of £ in part of the consideration money to be paid to us. Witness G. B. {Vendors) No. LXXXVII. By Guardians. No. LXXXVII. Agreement between two Guardians respecting the Purchase of an Estate hy them for their Infant Ward. Articles of kc. Between A. B. of &:c. of the one part and B.C. of Sec. of the other part Whereas the said A. B. and B. C. are testamentary guardians of E. D. an infant under the age of 21 years And tvhereas the said E. D. is under the will of his uncle tenant in tail of the manor of G. in &c. And whereas certain lands and hereditaments at in part of the estates of the coheiresses of &c. some time since were offered to sale and the same have been purchased by and conveyed to the said A. B. and B, C. their heirs and assigns at or for the price or sum of £ And whereas the said lands &c. lie contiguous to or intermixed with the estates of which the said E. D. is tenant in tail under the will of his said uncle and are in all respects a desirable purchase for the said E. D. and the said A. B. and B. C. agreed to purchase the same and being possessed of cer- tain sums of money belonging to the said E. D. the infant they the said A. B. and B. C. advanced the sum of £ part of the said monies in the purchase of the said estate JVow these presents ivitness and it is hereby declared between and by the said A. B. and B. C. in manner following that is to say That the sum of £ advanced by them in purchase of the said estate at was the proper money of the said E. D. the in- fant and by them the said A. B. and B. C. advanced out of his personal estate and that when and as soon as the said E. D. shall attain the age of 21 years he the said E. D. shall be offered the said purchase on condition of his agreeing to ratify and confirm the said purchase and all accounts and transactions relating AGREEMENTS. 167 thereto and that if he shall accept and agree to the said pvn'chase on these terms Then and in that case the said estate shall be immediately conveyed to him the said E. D. his heirs or assigns or as he or they shall direct or appoint but that if the said E. D. shall refuse to accept the said purchase upon the terms aforesaid Then and in that case they the said A. B. and B, C. their heirs and assigns shall retain the same for their own proper use and benefit and shall be considered as having originally purchased the same with their own respective monies advanced by them respectively in equal shares and proportions and under an agree- ment that there shall be no survivoi'ship between them and shall hold the same as if originally seised thereof as tenants in com- mon in fee-simple and not as joint tenants And further that every benefit or advantage which may be derived or any loss or detriment wdiich may be sustained by reason of their having made the said purchase shall be borne by them the said A. B. and B, C. and their respective heirs executors and administrators in equal shares and proportions In witness &c. No. LXXXMI. By Guardians. Agreement whereljy Part of Purchase Money is to remain in Purchased Lands until Minors attain 21 — see post, Pur- chases. No. LXXXVIII. Agreement for the Sale of Leasehold Premises, with a Covenant to take the Furniture. 1 . Executors bomid by Agreement. 2. Production of Lessor's Title. 3. Indemnity against Rents and Co- venants. 4. Taking a New Lease. 5. Not Assigning without Lessor's Consent. No. LXXXVIII. Sale of Leaseholds. Sect. 1. An agreement for the sale of a leasehold interest will be Executors bindirifT on the personal representatives, althoutih not named, Smith "°""^ y V. Watson, Bunb. 55. 2. Provision oiin-lit to be made in the contract to assijin a lease as Production of to the production of the lessor's title. A court of equity will not ^'^^'^°^' ^ ""'''' compel specific performance where the vendor is plaintifi', uidcss he can show a good title in the lessor to the estate out of which it i»< 168 AGREEMENTS. No. LXXXVIII. Sale of Leaseholds. Indemnity against rents and covenants. Taking a new lease. Not assigning without con- sent. Vendor .agrees to assign pre- mises for the residue of the tenn. Purchaser agrees to pay purchase- money. Furniture to be taken at a valuation. granted ; and, consequently, a vendor who is cither unwilling; or un- able to show a title must expressly stipulate to that effect in the con- tract, White V. Foljamhe, 11 Ves. 337; DeverellY. Ld. Bolton, 18 ib. 505 ; Fildes v. Hooker, 2 Mer. 424 3. A purchaser of a leasehold is bound to indemnify the lessee against the rents and covenants in a lease, although the vendor may not, at the time of the contract, have made any stipulation to that effect. See Assignments of Leases, post; Staines v. Morris, 1 Ves. & Bea. 18. 4. Under a contract for the residue of a term, a purchaser will not be compellable to take a new lease. Mason v. Corder, 7 Taunt. 9. 5. Where there is a clause in a lease against assigning without the lessor's consent, the vendor is bound to procure such consent, Lloyd V. Crisp, 5 Taunt. 249; 3Iason v. Corder, 7 Taunt. 9; S.C.I Marsh. 232. Ai'ticles &CC. Between (fee. as follow The said (Vendor) in consideration of the sum of £ to be paid as hereinafter is mentioned doth hereby for himself his (fee. (a) agree with the said {Purchaser) his &c. that he the said (V.) shall and will on or before the day of convey unto the said (P.) at his own costs and charges All that leasehold messuage &c. (parcels) for the residue of the term now to come and unexpired granted to the said (F.) by virtue of an indenture of lease bearing date on or about the day of subject to such payments con- ditions and covenants as in the said lease are reserved to be paid kept and performed by the lessee (b) in consideration whereof the said (P.) doth hereby agree with the said {V.) that he the said (P.) shall and will well and truly pay unto the said ( V.) his executors or administrators the sum of £ of lawful money of Great Britain on or before the day of and on the execution of the conveyance by which the said premises are to be granted and conveyed as aforesaid in full for the purchase of the said premises And it is hereby further agreed by the parties hereto that such household furniture goods and effects as the said (F.) shall think proper to leave in and about the said pre- mises at the time that he shall quit possession thereof shall im- mediately afterwards be valued and appraised by two indifferent persons which the said parties hereby agree to choose for that (a) As to the naming of executors, &c., see ante, sect. 1. (b) As to the necessity of any stipulation in the contract for indemnifying the vendor against the rents and covenants in the lease, see ante, sect. 3. Also as to the covenant respecting the title of the lessor, see ante, sect. 2. AGREEMENTS. 169 purpose and that the same shall be taken by the said (P.) ac- No. cordino; to such appraisement Ayidia) the said (P.) doth hereby \ , . ' . . , ijale oj agree that he the said (P.) shall and will within months Leaseholds. after the said appraisement shall be delivered to him pay such pyrcha aser sum of money as the same household furniture [or " stock" &c.] agrees to pay shall be appraised or valued at as aforesaid In uitness kc. ^lien valued. No. LXXXIX. jj^ Lxxxix. Agreement for the Purchase of Leasehold Premises. Purchase of Leaseholds. Articles of Agreement made this day of in the year Between {Vendor) of (fee. of the one part and {Pur- chaser) of (fee. of the other part as follows that is to say The said {V.) doth hereby agree to sell and the said (P.) doth agree Agreement for to purchase at the sum of £ All that leasehold messuage P"'^'= ^^^'-'• (fee. situate (fee with the piece or parcel of meadow ground abutting and adjoining (fee. containing by estimation (fee. acres be the same more or less for the residue now to come of a term of years commencing from the day of granted to the said {V.) by an indenture of lease bearing date the day of in the year and expressed to be made between &c. And it is hereby agreed that all fixtures Fixtures to be now upon the said premises [and mentioned in a schedule ^^'^^".^'^ i: r L ^ valuation. hereunto annexed] shall be taken by the said (P.) at a valua- tion to be made thereof in the usual way That the said {V.) Vendor to de- will deliver unto the said (P.) or his soHcitor within one I'^er abstract, calendar month from the date hereof an abstract of the title of him the said {V.) from the commencement of the said terra but not further back [or " and of the original or ground land- lord of the said premises"] And upon receiving the said sum To execute of £ will at the expense of the said (P.) execute an assignment, assignment of the said premises for the whole of the then re- {a) If the agreement be to sell the stock of a farm, say, " And the said (F.) doth a^ree to bargain and sell to the said (-P.) All the corn grain grass and roots now growing on the said farm or being in or upon any j)art of the said ])reniises And also all the horses cows pigs carts waggons ])longhs and all other live and dead stock belonging to the said (F.) and on the said \)yc- mis(;s the wljoh; to be taken at an appraiscmi-nt or valuation to be made by two indifferent ])crsons whom the said jiurtics hereby agree to choose &c. for that purpose and that the same shall be taken &c." {as above). 170 AGREEMENTS. No. LXXXIX. Piircltase of Leasehohh. Purchase- money to be paid. Costs in case of defective title. Errors in de- scription noi to vacate contract sidue of the said term [or " for a term wanting one day of the said residue at the option of the said (P-)"] and dehver up the said indenture of lease and all assignments thereof if any unto the said (P.) And upon the execution of such assignment as aforesaid the said (P.) will pay the said purchase-money or the sum of £ with the valued price of such fixtures And at the request and expense of the said ( V.) will execute a bond or a deed of covenant at the option of the said (F.) to pay the rent and to perform and observe the covenants contained in the said indenture of lease and to indemnify the said (F.) therefrom And the said (P.) shall be entitled to the in- crease and produce of the said premises from the day of now next [or " last"] up to which time all rent taxes and other outgoings shall be cleared by the said (F.) And &c. [time to be of the essence of the contract, see ante, p. 161, n. (a) ] That in case the said contract shall be abandoned for defect of title all reasonable costs and expenses paid or sustained by the said (P.) in investigating the said title or in insuring the said premises against loss by fire shall be borne and paid by the said (F.) And further that any error in the length of the term of years now to come in the premises (so that such term be an original and not an under or derivative term) shall not vacate this agreement but a reasonable abate- ment shall be made or equivalent given as the case may require to be ascertained in case of difference by the opinion of a surveyor in the usual manner In witness &;c. No. XC. Sale of an Advoivson, No. XC. Agreement for the Sale of an Advowson. Ohs. 1. The grant of an advowson during a vacancy is void, quoad the next presentation, Grei/ v. Ilesheth, Ambl. 258. The purchase of an advowson in fee, even if the incumbent, to the knowledge of both parties, be in a dying state, is notsimoniacal, if it be without the privity of the clerk afterwards presented, and with no view to his presentation. Fox v. The Bishop of Cheater, 2 B. & C. 635 ; Barrett V. Gluh, Dick. 516 ; Ahton v. Athnj, 6 Nev. & M. 686. By the 12 Ann. s. 2, c. 12, if any clerk purchase for himself the next presenta- tion, and is presented thereon, the next presentation is void. 2. If a church become vacant by the promotion of the incumbent to a bishopric, the queen, by her prerogative, has the next prescnta- AGREEMENTS. 171 tion ; provision is therefore frequently made for this event in the con- No. XC. tract for the purchase of an advowson. "^"'^ "/ an Advowson. Articles of Agreement made and entered into this day of Between {Vendor) of kc. for himself his heirs execu- tors and administrators of the one part and {Purchaser) of kc. for himself his heirs executors and administrators of the other part as follows viz. The said (F.) doth hereby agree with the said (P.) to sell All that advowson donation right of pa- Advowson. tronage and presentation of in and to the rectory and parish church of with the rights members and appurtenances and the inheritance thereof free from all incumbrances whatso- ever charged upon or in anywise affecting the said advowson or the incumbent thereof save and except the land-tax amount- ing to £ per annum a tenth amounting to £ per annum synodals and procurations amounting to £ to him at or for the price or sum of £ and that he the said ( V. ) will within one month from the date hereof at his own Vendor to show expense make and deliver unto the said (P.) or his solicitor an ^°° abstract of the title of him the said (F.) to the said advowson and will also at his own expense deduce a clear title thereto And also that the said (F) or his heirs and all other necessary parties shall and will on or before the day of next on receiving from the said (P.) his executors or administrators the said sum of £ at the costs and charges of him the said (P.) his heirs executors administrators or assigns execute Convey to a proper conveyance for conveying and assuring the fee simple ^"'^^ ^'^^^^' and inheritance of and in all the said advowson with the appurtenances unto the said (P.) his heirs or assigns [or " as he or they shall direct"] free from all incumbrances except as aforesaid And shall in the said conveyance enter into the Covenant for usual covenant for the production of all deeds evidences and jgeds.'^*'"" ° writings concerning the said advowson and for the delivery from time to time at the request and exjjense of the said (P.) his heirs or assigns of attested or other copies of the same deeds evidences and writings And the said (P.) hereby agrees with the said (F) that he the said (P.) his heirs executors administrators or assigns shall and will on the execution of such conveyance as aforesaid pay the sum of £ unto the said (F.) his executors or administrators And it is hereby Payment of further agreed by and between the said (F) and (P.) as follows ''•'^P^""-'''^^' viz. That the conveyance shall be prepared by and at the expense of the said {P.) and tliat the same shall be settled 172 AGREEMENTS. No. XC. and approved of on the parts of the said (F.) and (P.) by Sale of their respective counsel and that each of tliem the said {V.) an Advoicson. -t^ ■, ■,-, if /•!• ^ a i • • and (P.) shall pay the lees oi his ovv^n counsel And it is In case the hereby further agreed and declared by and between the parties cant'^to lireTent hereto That in case of the death resignation cession deprivation nominee of the or relinquishment of the said (F.) on or before the day of next ensuing he the said(F.) his heirs &c. shall and will duly present such parson to the said rectory as the said Promotion of (P.) shall nominate And that if the presentation should v'^ho !ric^ ^° ^ devolve on the crown in consequence of the present incumbent being promoted to a bishopric before the day of then and in such case so much of the purchase-money as shall be equal to the value of the next presentation to be ascertained by two indifferent persons to be appointed in the usual manner or by their referee to be chosen by them if they disagree shall be retained by the said (P.) [or " this contract shall not be affected thereby nor shall the said (P.) be entitled to any de- duction out of the said purchase-money" as the case may he. See ante, p. 161, /or other clauses to he inserted when necessai-y .'\ No. XCI. Next Presentation No. XCI. Agreement for the Sale of a next Presentation to a Rectory. Articles of Agreement made this day of 18 Between (Vendor) of &c. for himself his heirs executors and administrators of the one part and {Purchaser) of &c. for him- self his heirs executors and administrators of the other part The said ( V.) agrees to sell to the said (P.) for the sum of £ the first and next turn nomination and presentation of and to the rectory and parish church of in the county of which shall or may happen next after the date hereof by the death resignation cession or deprivation of the present incumbent thereof or by any other ways or means whatsoever And also to deliver unto the said (P.) within months after the date hereof an abstract in the usual manner of the title of the said (F.) to grant the next presentation of and to the said rectory and parish church And also on receiving the said sum of £ to execute a grant or other assurance of the next presentation to the said rectory and parish church unto the said (P.) his executors administrators or assigns or as he or AGREEMENTS. 173 they shall direct in which all proper and necessary parties and ^o. XCI. persons beneficially interested in the purchase-money shall join p^^^^X^on. and which shall contain the usual and proper covenants for title quiet enjoyment and further assurance and shall be prepared by and at the expense of the said (P.) And also to deliver at his own charges to the said (P.) at the execution of the said conveyance true and attested copies of the several title deeds evi- dences and writings relating to the said rectory and parish church and by the same conveyance covenant in the usual manner to pro- duce the same title deeds evidences and writings and to permit the said (P.) to have future copies thereof at his own cost And the said (P.) agrees upon the execution of the said con- veyance to pay to the said ( V.) the sura of £ \^Add clause, time to he the essence of the contract, see ante, p. 161, n. (a)] And it is further agreed that if the present or any succeeding incumbent of the said rectory should at any time hereafter durino- his incumbency of the said rectory be created a bishop whereby the right of presentation to the same rectory may de- volve to the crown then the said (P."* shall have the first or next turn or right of presentation to the said rectory after the crown In witness Sec. No. XCI I. Agreement to assign a Boardiny- School, Lease of the Premises, Saieofa Board- and Furniture. '"^ ^'^"'^• Articles of &c. Between ( Vendors) of &:c. of the one part and {Purchaser) of the other part Wit7iess That for and in considera- tion of the sum of £ to be paid on the day of next ensuing they the said (V.) do hereby agree to relinquish Vendor agrees and assign All that the boarding-school conducted by them at wiiro'ftho^' °^ " and All that the messuage or tenement garden and scliool and the premises where the same has been heretofore carried on and to " " ' execute on receipt thereof a good and valid assignment in the law of the said boarding-school and premises and also the in- denture of lease by which the said (K.) hold the same for the residue of the term then to come and unexpired but subject to the rent and covenants therein reserved and contained together also solicits of also with the two policies of insurance whereby the said premises '"''"'■""'=^- 174 AGREEMENTS. No.XCTI. Sale of a Board- iiiff School. Purchaser agrees to pay consideration. Valuation. Purchaser agrees to pay the amount. and the household furniture goods and effects therein contained are insured from fire And also shall and will pay all rent and taxes due for the said messuage up to the said day of now ensuing And the said (P.) doth hereby agree with the said (F.) that she the said (P.) shall and will on the said day of well and truly pay to them the said ( V.) the full sum of £ of lawful &:c. as a premium or consideration for the said boarding-school messuage &c. and shall and will accept such assignment thereof respectively as is hereinbefore mentioned And it is hereby mutually agreed by the parties hereto that a valuation shall forthwith be made of the household furniture goods chattels linen fixtures and things which are in and upon the said premises by two persons one to be chosen by the said (F.) and the other by the said (P.) And the said (P.) doth hereby agree to pay unto the said (F.) calendar months after the said day of next ensuing the full amount at which the said furniture and effects shall have been valued In witness &c. No. xciir. Pur chase of 'Timber. No. XCIII. Agreement for the Sale of standing Timber. An Agreement made &c. Between (Fy the words " jierceive" and " receive.' To whom granted. Apportionment ot" annuity and rent-charge. prop(M-ty, that wlion p-antcd with words of inheritance, it is descondi- hlc, nnd <'-oes to the heir to the oxchision of the executor, Turner v. Turner, Amhl. 782; Stafford v. Buckley, 2 Yes. sen. 179; Auhiii V. Dale, 4 B. & Aid. 59 ; Co. Litt. 144 b. If a man seised of land jrrant a yearly rent, issuable out of the land, to another in fee-tail or for term of life, &c., with a clause of distress, this is a rent-charge. The ])rincipnl difference between an annuity and a rent-charge is the remedy which tlie law gives for the recovery of the arrears. If an annuity issue out of land, as it now most commonly does, the grantee has his election to bring a writ of annuity, and, charging it upon the person, to make it personal, or to disti'ain upon the land so as to make it real, Co. Litt. 144 a. But he cannot have them both to- gether, for if he recover by a writ of annuity, then the land is dis- charged of the distress ; but if he distrain for the arrears, and avow the taking of the distress in a court of record, then is the land charged, and the person of the grantor discharged, Litt. s. 219. As few grants of aimuities are without a covenant for payment expressed or implied, an action of covenant may be, and now mostly is, brought for the recovery of the arrears when a distress cannot be made. When the grantor of an annuity wishes his person to be discharged, and his land charged, a clause to that effect may be inserted in the deed, Litt. s. 220. 2. To make a good grant of an annuity, no particular technical mode of expression is necessary. If, therefore, a person intending to grant a rent-charge, do it in such a manner that it shall be void as a rent, it will be good as an annuity, for the words *'to perceive" or " receive,'' is a sufHcient charge on the person of the grantor, 1 Roll. Abr. 227 ; 2 Vin. Abr. 507, [E]. 3. If a rent'Charge be granted to a man and his heirs, he shall not have a writ of annuity against the heir of the grantor, although he has assets, unless the grant be for him and his heirs, Plowd. 457 ; Co. Litt. 144 b. But in the case of a corporation, which has a perpetual continuance, the successoi's will be bound, although not named, Harg. Co. Litt. 144, n. 2. Questions sometimes arise under wills, whether annuities are given in perpetuity or for lives only, Manserrjh v- Camp- bell, 4 Jur. (N. S.) 1207; Hedges v. Harpur, Id. 1209. 4. By the old law, if a man had a rent-charge to him and his heirs, issuing out of certain lands, and he purchased any parcel of those lands to him and his heirs, all the rent-charge became extinct, be- cause it could not be apportioned, Litt. s. 222. So likewise an an- nuity, if it were not made chargeable on the person, before the purchase. Dyer, 140; Gilb. Rents, 152. So a rent-charge, not being apportionable, if it were made payable half-yearly or quarterly, and the annuitant died in the interval between the days of payment, nothing was due for the time he lived, unless by express stipulation, Pearly v. Smith, 3 Atk. 200. VVhetlier an annuity chargeable on AXXl ITY. 181 the person only, and not on the lands, were suhject to the same rule. Annuity. appears to have been doubtful, Edivards v. Countess of Warwich, 2 P. Wms. 176. The law of apportionment has since been altered by the 4 & 5 Will. 4, c. 22 ; but as it does not appear to have removed all doubts, it will be safer to insert the usual stipulation for the pay- ment of the annuity for the intervening time that has elapsed between the last payment and the decease of the annuitant. 5. Annuities by way of rent-charge are frequently granted to a When an an- person and his heirs for a life or lives instead of being granted for """y ^^ *"^"^' •T c' » cliarge goes to years, determinable with the decease of a person or the decease of the the heir, survivor of several persons, when such an annuity is derived out of and depends on a freehold interest, the annuity will on intestacy be transmissible, and belong to the heirs and not to the executors or administi-ators. But eveiy annuity granted out of a chattel interest ■will be a chattel interest, although it be limited to the grantee and his heirs for a life or lives, 1 Prest. Abst. 446. See Afhinson v. Baker, 4 T. R. 429. If a rent-charge be granted to a man during the life of another, and the grantee dies during the life of the cestui que vie, the right to the rent-charge vests in the personal representa- tive of the grantee, Bearpark v. Hutchinson, 7 Bing. 178; 4 Moore & P. 848. Such an estate is also devisable by the grantee. lb. See 7 Will. 4 & 1 Vict. c. 26, s 6. When therefore it is the grantee's intention that an annuity or rent-charge, for the life of the grantor or the lives of nominees, should form part of his personal estate, it should be limited to him, his executors, administrators and assigns, for a term of years, if the grantor, nominee or nominees, or the sur- vivor of them, should so long live. Such an express limitation, how- ever, does not appear to be necessary in the grant of a personal an- nuity pur autre vie, because it is not a freehold, but only a chattel, Sacory v. Dyer, Ambl. 139; 1 Dick, 162; nor in a grant of an annuity or r^nt-charge out of a term of years, for this is good for so many years as the term continues, and it is not determined by the death of the grantee, Cro. Eliz. 183; 7 Co. 25 a; 1 Roll. Abr. 831, pi. 3. A rent-charge for life as a freehold interest cannot in point of estate exist by force of a title under a term of years, 7 Co. 23, 24 ; 2 Prest. Abst. 2. 6. If a man be possessed of land for a term of years in the right When a wife is of his wife, and grant a rent-charge and die, the wife shall avoid the ijy\"erh4b;md' charo-e, because she does not claim under her husband. But the husband's alienation of the term itself, or any part of it, binds the wife surviving, Hargr. Co. Lit. 184 a, n.l; Butl. Co. Litt. 331a,n. 1. See 1 Rop. on Husband and Wife, 173. Therefore where the husband charges an aninjity on his wife's term for years, he should also abso- lutely assign the term uj)on trusts for securing the annuity. 7. By tile 32 Hen. 8, c. 34, a power of distress is given to grantees Power of ilis^ tress. 182 ANNUITY. Jnnuittj. and assifjnces of reversions, their heirs, executors, successors and as- si>iiis ; and by the 32 Hen. 8, c. 37, the sanrie power is given to the executors and administrators of tenants in fee-simple, fee-tail, and for life : this power is extended by 4 Geo. 2, c. 28, to arrears of rent seek, rents of assize, and chief rents or quit rents. See 3 & 4 Will. 4, c. 42, s. 37. Power of entry. 8. A power of entiy, as well as a power of distress, is usually given to the grantee of an annuity, or rent-charge, or to his representatives, in default of payment for a certain number of days. If this be limited by way of use, it takes effect from the Statute of Uses ; but if in a o-rant of rent, to be issuing out of certain lands, a proviso, condition or covenant be inserted, that if the rent be in arrear, the grantee may enter; in that case he or his assignee may enter by virtue of such pro- viso, Butl. Co. Litt. 203 a, n. 1, unless it be otherwise expressly stipulated. (As to the clauses of distress and entry in the case of copyholds, see Grant of an Annuity secured on Copyholds.) Warrant of 9. In order to make the person of the grantor as well as his estate attorney, bond, jj^j^jg \i jg usual to secure tlie payment of the annuity or rent-charge and covenant to ' n • -, iii pay. either by a warrant of attorney to confess judgment, or by a bond, or by a covenant to pay, very frequently by a bond or covenant, as well as a warrant of attorney ; but where there is a covenant to pay, a bond does not add to the security, and is therefore a superfluous expense. When a warrant of attorney is taken, judgment ought to be entered up immediately. Wild v. Sands, 2 Stra. 7, 8; Corvie v. Allaway, 8 T. R. 257. But in order to obviate the consequences of any omission so to do, a provision is mostly inserted, dispensing with the necessity to revive judgment. Redemption of 10. An annuity may be redeemable, but it is not necessarily so ; annuity. ^^^ j|. jg ^^^^ redeemable, unless there be a special provision to that effect in the deed granting it, Coverleyy. Burrell, 5 B. & Aid. 257; which ought in no case to be omitted, where it is intended by the parties that it should be redeemed. Effect of mak- 11. In the grant of an annuitv as in other cases, where a trust is ing the receipts j.rjjgg(j ]3y (jggj qj. ^\[\ foj. ggig ^f ^n estate, a clause that the receipts ot trustees valid •' i • i i i discharges. of trustees shall be sufficient discharges, is mostly inserted, and rarely ought to be omitted; as equity will in some cases bind purchasers to see the money applied according to the trust, if they be not expressly released by the authority of the trust, Abbott v. Gibbs, 1 Eq. Ab. 358; Balfour v. Welland, 16 Ves. 151. Life annuities 12. By Stat. 17 & 18 Vict. c. 90, the stat. 53 Geo. 3, c. 141, rc- and rent- quiring a memorial of annuity deeds to be enrolled was repealed, but charges not to^ ^ . . ^ -, r^ ^ k -i -^r * rrji atiect lands as transactions previous to the 10th August, 18o4, are not arrected by to purchasers, such repeal. The stat. 18 & 19 Vict. c. 15, s. 12, recites that by memorandum reason of the. repeal of the act 53 Geo. 3, c. 141, requiring the en- left with senior rolment of life annuities or rent-charges, purchasers were no longer master. ANNUITY. 183 enabled to ascertain by searcb what life annuities or rent-charo;es may Annuiiy. have been granted by their vendors or othei's, and then enacts : — Any annuity or rent-charge granted alter the 26tli April, 1855, otherwise than by marriage settlement for one or more life or lives, or for any term of years or greater estate, determinable on one or more life or lives, shall not affect any lands, tenements or hereditaments as to pur- chasers, mortgagees or creditoi's, unless and until a memorandum or minute containing the name and the usual or last known j)lace of abode, and the title, trade or profession of the pei-son whose estate is intended to be affected thereby, and the date of the deed, bond, in- strument or assurance whereby the annuity or rent-charge is granted, and the annual sum or sums to be paid shall be left with the senior master of the Court of Common Pleas at Westminster, who shall forthwith enter the particulars aforesaid in a book in alphabetical order bv the name of the person whose estate is intended to be affected by the annuity or rent-charge, together with the year and the day of the month when every such memorandum or minute is so left with him, and he shall be entitled for every such entry to the sum of two shillings and sixpence, and all persons shall be at liberty to search the same book, together with tlie other books or registers in the office, on payment of the sum of one shilling. The registry of annuities or rent-charges given by will is not required, 18 & 19 Vict. c. 15, s. 14. 13. The grant of an annuity being a species of conveyance, an ad Stamp. valorem stamp is required for an annuity deed by the 13 & 14 Vict. 0. 97. (As to an agreement to grant an annuity and assignment of au annuity, see the subsequent precedents.) No. XCVII. ^„. xcvii. Agreement to grant an Annuity. Agrcfwfnt in Obs. 1. An agreement for the grant of an annuity is sometimes ^'^""^ Ainunttj. entered into for the purpose of completing the transaction at some ,„ay'enteriiito future period, and may be entered into on the part of a feme covert, an agrceiuent with respect to her independent property, Essex v. Atkins, 14 Ves. jj^^j'jif" 542. Such an agreement need not be memorialized, as it was not within the 53 Geo. 3, c. 141 ; Jackson v. Lever, 3 B. C. C. 605 ; Neild V. Smith, 14 Ves. 491 ; but it was frequently required by way of pre- caution. 2. Specific performance of an agreement to grant an annuity, as a Spcciik- pc r- consideration for the purchase of an estate, will be enforced, although ioinianco wluti . . . eiiforccil. the vendor die previous to the com];)letion of the contract, Mortimer V. Capper, 1 B. C. C. 156; Jackson y. Lever, 3 B. C. C. 605; Faine v. Mellor, 6 Ves. 352; Coles v. Trecothich, 9 Ves. 246; Kenny v. Wexham, 6 Madd. 355. Articles &c. Between (grantor) of Sec. of the one part and (Jrantor a^Trccs lo y;iaiit annuity. (grantee) of &:c. of the other part Witness That the said (grantor) ^""'•"" "" 184 ANNUITY. No. XCVII. Asreement to grant Annuity. To secure pay- ment by war- rant of attorney. To make out good title, convey mes- suages, &c., and pay all ex- penses. Grantor to pay the considera- tion money. in consideration (a) of the sum of £ doth hereby agree to grant inito the said {(jrantee) an annuity or clear yearly sum of £ {h) during the hfe of the said {yrantor) to be paid quarterly from the time of granting the same with a proportional part (c) up to and inchisive of the day of his death to be charged upon and issuing out of all those freehold messuages tenements and hereditaments of the said {grantor) situate at in the county of and to be further secured by the bond and warrant of attorney to confess jud^'inent of the said {(jrantor) And the said (grantor) shall and will deliver unto the said {grantee) on or before the day of next a full and perfect abstract of the title of him the said {grantor) to the said messuages tenements and here- ditaments {d) And also shall and will demise or convey by sufficient and proper conveyances the same hereditaments and premises unto a person or persons to be named by the said {grantee) in such manner and form and with such powers pro- visoes conditions covenants and agreements in the said deeds or instruments to be contained as are usual in like cases particu- larly a proviso enabling the said (grantor) to repurchase the said annuity on giving six calendar months' notice for that purpose and on paying all arrears &c. (e) And that the charges and the expenses attending the granting and securing the said an- nuity shall be borne by the said (grantor) And the said {grantee) in consideration of the premises doth hereby agree to pay unto the said (grantor) the sum of £ at the time of the exe- cution of the said securities (or the sum of £ at the execu- tion of &c. and the further sum of £ on the day of &c. as the case may be.) (a) If the purchase- money be not all paid at once, then say, "The sum of £ at the execution of the said securities and the further sum of £ witliin the space of calendar months next ensuing." (b) Or, if it be so agreed, "during the life of the grantee," or "during the lives of nominees or the longest liver of them," or " for a term of years determinable on lives." (c) As to the reason for this clause, see Pref. s. 4. (d) If the annuity be secured on leasehold premises, and it be so agreed, say, " But the said (grantor) shall not be required to produce further evi- dence of his title to the said premises than the said lease and all deeds relating thereto." See ante, Agreement to grant a Lease, s. 6, p. 98. ((') If the annuity be granted during the life of the grantor, add, "Also a covenant that the said (grani or) shall at his own expense appear at any office in London or Westminster that his life may be insured." If necessary also add, " And also that the said {grantor) shall at his own expense insure such parts of the said premises as are liable to be dauiaged or destroyed by tire." ANNUITY. 185 No. XCVIII. . N0.XCVI11. Bond to secure Bond to seciire the Payment of an Annuity to a former Mistress. "jnnuit" Obs. 1. It is a rule both of law and equity, that ex turpi contractu illegality of actio nan oritur ; any consideration, therefore, which is against the consideration rules and claims of decency will vitiate the contract ; but courts of law as well as those of equity distinguish between considerations past and considerations future, and consequently a bond purpoi-ting to be in consideration of past cohabitation between the obligor and the obligee has been held to be good, 2 Wils. 339 ; Ambl. 641 ; Forr, 153; 1 Fonbl. Eq. 228. 2. A bond given as a collateral security for the payment of an an- Stamp, nuity upon the original creation and sale thereof, where the same shall be granted or conveyed or secured by any other deed or instrument, is liable to and charged with the ad valorem duty imposed by law on conveyances upon the sale of any property : where such ad valorem duty shall not exceed 20.v., such bond shall be chargeable with a stamp duty of equal amount with the said ad valorem, duty; and where such ad valorem duty shall exceed 20s., such bond shall be chargeable with the duty of 20.<. A bond given as the only or principal security for the payment of any annuity upon the original creation and sale thereof, the same ad valorem duty as on a conveyance in consideration of the sum or value given or agreed to be given for the purchase of such annuity. A bond given to secure an annuity without any valuable consideration is charged with a stamp duty of 1/., where the annuity does not exceed 50/. per annum ; 2/., where the annuity exceeds 50/. and is under 100/. ; and where the same exceeds 100/., 2/. for every 100/. and fractional part of 100/.— 13 & 14 Vict. c. 97, Sched. tit. Bond. Know all Men hy these presents &.c. (see Bond.) Whereas Recital of by indenture bearing date the day of and made ig^J^ trsccu're between the above bounden ( Obligor) of the one part and the paymLnt of an said (Trustees) of the other part certain hereditaments therein described situate lying and being &c. were demised and assured by the said (O.) to the said (T.) their executors administrators and assigns from the day of the decease of the said (O.) during thie term of years without impeachment of waste /// ti'ust yearly and every year after the decease of the said (O.) during the life of H. H. therein named and described by the ways and means therein mentioned to raise and levy one an- nuity or yearly sum of £ free from all taxes and deduc- ti(jns whatsoever and to pay and ap])ly the same by two half yearly j)ayments on the day of and the day 186 ANNUITY. No. XCVIII. of in every year the first payment to be made on such of Bond to secure ^j^c [^.^id days as sliould happen next after the decease of him the "'"" ^' — said (O.) into the proper hands of her the said H. H. whether covert or sole or unto her order to be signed by any note or writing from time to time after each of the said half-yearly payments should have become due but not otherwise for her sole and separate use benefit and disposal during her life inde- pendent of any future husband And so that she might not whether covert or sole at any time or times whatsoever make any assignment or disposition by way of anticipation of the said annuity of £ or any part thereof which should not actually have accrued or become due to the intent that the same might not be subject or liable to the debts of any future husband of the said H. H. but always remain for her maintenance and support And it was thereby declared that the receipt and receipts of the said H. H. or of the person to whom she might appoint the said annuity or any part thereof to be paid in manner aforesaid should notwithstanding her coverture (if married) be a sufficient release and discharge for the same or so much thereof as in such receipt Of grant of an or receipts should be expressed to be received And whereas in annuity. consideration of the past services of the said H. H. and from motives of concern for her interest the said (O.) is desirous of settling upon her an annuity of £ to commence imme- diately in addition to the said annuity of £ secured to her by the last in part recited indenture and for the purpose of carry- ing the intention of the said ( O.) into effect he hath executed the above-written bond subject to the condition hereinafter contained Condition, for making void the same Now the condition of the above- written obligation is That if the above bounden ( O.) shall and do henceforth yearly and every year during the life of the said H, H. well and truly pay unto the said {T.) or the survivor of them or the executors or administrators of such survivor (in ad- dition to the said annuity of £ secured by the said in part recited indenture) one annuity or yearly sum of £ free from all taxes and without any deduction whatsoever by equal half-yearly payments on the day of and the day of in every year the first of such half-yearly payments to be made on the day of next ensuing the date of the above-written bond {a) to the intent that the same {a) If it be so agreed, add, '' or if the said H. H. shall happen to die be- tween any of tlie said feasts or quarter days whereon the said annuity is made ANNUITY. 187 may be applied by them the said (T.) and the survivor Ecc. Upon No. XCVlll. such trusts for the separate use of tlie said II. II. as in the said ^""^ to secure in part recited indenture are expressed concerning the said an- nuity of £ Then kc. (see post, Bonds.) Annuity. Bond for Payment of an Aniiuity — see post, Bonds. No.XCIX. ,, ,.^,,, No. XCIX. Grant of an Annuity for the Life of the Grantor secured on Grant of Freeholds. {General Precedent.) ^'^FrieliZs^ Ohs. As to stamps required for this deed, see ante, Pref. s. 13. Stamp. TJiis Indenture made the day of in the year of our Lord 18 Between {grantor) of &:c. of the first part {grantee) of Parties. &c. of the second part {trustee) of &c. a trustee named and ap- pointed by the said {grantee) for the purposes hereinafter men- tioned of the third part and {receiver) of &:c. of the fourth part Whereas the said {grantor) is seised of or entitled to the several Recital of messuages lands and hereditaments hereinafter particularly de- ^'^'*'"- scribed for an estate of freehold during the term of his natural life And whereas the said {grantee) hath contracted with the said of contract for {grantor) for the absolute purchase of one annuity or clear yearly P"^'^^'''^'-'- rent-charge or sum of £ during the life of the said {grantor, or grantee, or nominees, " or the survivor of them," as the case may be) free from taxes and without any deduction whatever subject nevertheless to a proviso or agreement for the repurchase of the same hereinafter contained (a) And whereas for securing the pay- Of warrant of ment of the said annuity or clear yearly sum of £ the said ^"^""^y* payable to them respectively then if the said {obligor) his heirs &c. shall and do pay or cause to be paid unto the said (7".) or the survivor of them, his executors or administrators, a proportionate part of such annuity or yearly sum according to the time which the said H. H. may happen to live after the then last quarter's payment shall become due to the said H. 11. without any deduction or abatement Avhatsoever." (a) If it be so agreed, say, ^' And ichercas the said {grantoT) by his bond or obligation in writing bearing even date with these presents hatb become bound to the said (grantee) in the penal sum of £ with tlie conditinn 188 ANNUITY. No. XCIX. Grant of, secured on Freeholds. Of aniuiity to be secured on the freeliokls. Testatum. Grant of an- nuity. Habendum. (f/ranfor) by his certain warrant of attorney bearing even date with these presents hath authorized A. B. and CD. attornies of her Majesty's Court of Queen's Bench to confess judgment against him in an action of debt for the sum of £ and costs of suit A nd whereas it was agreed upon the treaty for the purchase of the said annuity that for the further securing unto the said {(jrantee) liis executors administrators and assigns payment of the said annuity or &c. of £ the same should be charged upon and issuing out of the said messuages or tenements lands and hereditaments And it was further agreed between them the said {grantor) and {grantee) that the costs and expenses attend- ing the contract for the said annuity and for preparing and per- fecting the securities for the same should be borne and paid by the said {grantor) And it was also agreed that the said {receiver) should be appointed receiver of the rents of the said hereditaments as hereinafter mentioned Now this Indenture witnesseth That in pursuance of the said in part recited agreement and in considera- tion of the sum of £ of lawful money of Great Britain to the said {grantor) in hand well and truly paid by the said {grantee) at or before the sealing and delivery of these presents the receipt whereof the said {grantor) doth hereby acknowledge and of and from the same and every part thereof doth acquit release and discharge the said {grantee) his executors and administrators by these presents He the said {grantor) Doth hereby give grant bargain and sell unto the said {grantee) his executors adminis- trators and assigns during the natural life of the said {grantor) One annuity or clear yearly rent-charge or sum of £ to be issuing and payable out of and charged and chargeable upon All that messuage or tenements &:c. To have and to hold receive perceive and take the said annuity or yearly rent-charge or sum of £ unto the said {grantee) his executors admi- nistrators and assigns henceforth during the natural life of the said {grantor) {a) to be paid and payable to him the said {grantee) his executors administrators and assigns at or in the tliereunder written for making void the same upon payment of the said annuity or yearly sum at the times and in manner hereinafter mentioned." As to the necessity of a bond, see ante, Pref. sect. 9. (a) Or " of the said {grantee,)" or " during the natural lives of the said {nominees) or during the life of the survivor of them," or " for and during the term of 99 years if the said {grantor) or if the said {nominees) or the sur* vivor of them should so long live." ANNUITY. 189 Common Dinino;-IIall of the Inner Temple in the county of No. XClX. Middlesex by four equal quarterly payments between the hours Grant oj\ of &c. on the day of the day of the Freeholds. day of" and the day of in every year free from all taxes and without any deduction or abatement whatsoever the first quarterly payment to be made on the day of now next ensuing (a) And in case the said (grantee) should die in the interval between any of the said quarterly days of pay- ment then also a proportionate (b) part of the said annuity for the time which at the decease of the said {grantor) shall have elapsed for the quarterly payment then growing due such pro- portionate part to be paid within days after the decease of the said (grantor) And the said (grantor) for himself his heirs Covenant to executors and administrators doth hereby covenant promise and P'*^ a"'>u»ty' agree with and to the said (grantee) his executors administrators and assigns That he the said (grantor) his heirs executors or administrators shall and will well and truly pay or cause to be paid unto him the said (grantee) his executors administrators or assigns the said annuity or yearly rent-charge or sum of £ during the life of him the said (grantor) at or upon the days and in the manner hereinbefore appointed for the payment thereof and also such proportionate part as aforesaid And the Clause of dis- said (grantor) for himself his heirs executors administrators *^"'^'*^' and assigns doth hereby grant covenant and agree with and to the said (grantee) his executors administrators and assigns That in case the said annuity or yearly rent-charge or sum of £ shall happen to be due and unpaid for the space of twenty-one days next after any of the said days or times hereinbefore ap- pointed for the payment thereof Then and in every such case and so often as it shall happen it shall and may be lawful to and for the said (grantee) his executors administrators and assigns into and upon the said messuages tenements lands here- ditaments and premises so charged with the payment of the said annuity or into or upon any ])art thereof to enter and distrain for the same annuity and all arrears thereof and to dispose according to law as landlords may for rent reserved upon leases for years of the distress and distresses then and there found to (a) k% to the necessity of this clause, see ante, Pref. sect. .3, and also Apportionment. (h) Before the 4 & 5 Will. 4, c. 22, (see pos^, tit. Appoutionmknt) this clause was absolutely necessary where it was intended that the annuity should be apportioned. 190 ANNUITY!. No. XCIX. the intent that thereby the said annuity or yearly &:c. of Grmit of, £ and all arrears thereof shall be fully paid and satis- Freehoids. ficd tos^ether with all costs charges and expenses whatsoever sustained and occasioned by nonpayment or attending such Clause of entry, distresses as aforesaid And fiirther That in case the said annuity or any part thereof shall be behind or unpaid for the space of forty days next after any of the days or times herein- before appointed for the payment thereof [although no formal demand shall have been made thereof] Then and so often it shall and may be lawful to and for the said {grantee) his execu- tors administrators and assigns into and upon the said premises or into or upon any part thereof in the name of the whole to enter and the same to have hold and enjoy and the rents and profits thereof and of every part thereof to receive and take to and for his and their own use and benefit until he or they shall be thereby and therewith or otherwise fully paid and satisfied the said annuity and the arrears due at the time of such entry and which shall afterwards accrue and grow due during such time as he the said {grantee) his executors administrators or as- signs shall continue in possession of the said premises after such entry together with all costs damages and expenses occasioned by nonpayment thereof as aforesaid and all such costs and expenses as shall be incurred by the said {grantee) in keeping the said messuages tenements and hereditaments in good and tenantable repair (a) such possession when taken to be without * impeachment of waste other than wilfid and malicious waste {h) Further testa- A7id this Indenture further witnesseth That in further pursuance of the said agreement and for the further securing the payment of the said annuity or clear yearly sum of £ he the said {grantor) at the request and by the direction of the said {grantee) [testified by his sealing and delivering of these presents] Doth {a) A rent-charge was secured ou a house, with power, when in arrear, to enter and receive the rents until all arrears and costs, charges and expenses occasioned by the non-payment should be satisfied. The rent-charge being in arrear, the grantee entered, and, the house being greatly dilapidated and untenanted, he repaired and let it : it was held, that the question whether the grantee of the rent-charge was entitled to be allowed the monies expended by him in repairing the property was one to be determined at Jaw ; and that if he was not entitled thereto at law, neither was he in equity. Hooper v. Cooke, 20 Beav. 639 ; 1 Jur., N. S. 949; 25 Law J., Ch. 62; affirmed on appeal, 25 Law J., Ch. 467. {b) If the grantor be tenant for life, add, "as far as the said {grantor) can grant that privilege." turn, ANNUITY. • 191 hereby grant and demise unto the said (T.) his executors admi- No. XCIX. nistrators and assigns All those the several messuages or tene- ^''""^ "■f* ments lands and hereditaments with the appurtenances herein- Freeholds. before mentioned and charged with the payment of the said De,„;geof annuity with all outhouses &:c. {general words) To have and to lands to trustee hold the said messuages or tenements lands hereditaments and premises hereby granted and demised with the appurtenances unto the said ( T.)his executors administrators and assigns from the day next before the day of the date of these presents for and during the term of ninety-nine years thence next ensuing and fully to be completed and ended without impeachment of waste if the said [grantor) shall so long live Upon the trusts nevertheless and to Upon trusts. and for the ends intents and purposes hereinafter expressed and declared concerning the same that is to say Upon trust in the To permit first place to permit and suffer the said (grantor) to receive and fhe'relusliul^ take the rents issues and profits of the said hereby demised pre- profits, mises with the appurtenances until default shall happen to be made in payment of the said annuity or some part thereof on or at the days and times and in manner hereinbefore appointed for payment of the same And upon this further trust That in case To raise arrears the said annuity or yearly sum of £ or any part thereof ^X J"°>'tg^g'^ ""^ shall happen to be behind or unpaid by the space of forty days next after any of the said days or times of payment then and so often as the same shall happen the said (T.) his executors admi- nistrators or assigns do and shall by and out of the rents issues and profits of the said messuages and premises or any part thereof or by demising leasing mortgaging or selling the same premises or any part thereof for all or any part of the said term of ninety-nine years or by such other ways or means as the said (71) his executors administrators or assigns shall seem meet raise and levy such sum or sums of money as shall be sufficient to pay and satisfy the said annuity or yearly rent- charge of £ or so much thereof as from time to time shall happen to be in arrear and unpaid together with all such losses costs charges damages and expenses as the said (grantee) and (7'.) or either of them their or either of their executors ad- ministrators or assigns shall sustain or incur in consequence of the nonpayment of the same annuity or in the execution of the trusts hereinbefore declared AjuI shall apply the monies arising tliereby in or towards the j)ayment or satisfaction thereof ac- cordingly and the surplus of such monies (if any) to the said 192 ANNUITY. No. XCIX. Grant of, secured un Freeholds. Contracts, &c. of trustee good without consent of grantor. Indemnity to trustees. Receipts of trustees to be good dis- charges. {qrantor) bis executors administrators or assigns (a) And shall permit and suffer the said {(jrantor) and his assigns to receive the surplus (if any) of the rents issues and profits of the said mes- suages hereditaments and premises as aforesaid to and for his and their own use and benefit And for the purpose of facili- tating any such sale or mortgage it is hereby declared and aoreed by the parties to these presents that all contracts sales mortgages assignments and things which shall be entered into made and executed by the said {T.) his executors &;c. of or concerning the said messuages or tenements and premises or any part thereof shall to all intents and purposes be as valid and eti'ectual in the law as the same would have been if the said {grantor) had actually joined in and executed the same Provided always and it is hereby further declared and agreed by and between the parties hereto That the said {T.) his executors administrators or assigns or any of them shall not be answerable for any loss which may happen to the said premises in the ex- ecution of the trusts hereinbefore expressed unless the same shall happen through his or their own wilful default And that the receipt or receipts of him the said (T.) his executors &c. for any monies payable to him or them by virtue of these presents shall be a sufficient discharge (&) or discharges unto the person or persons paying the same and that the person or persons making such payments shall not be bound or liable to see to the applica- tion of such monies or be answerable or accountable for the loss misapplication or non-application thereof nor be obliged to inquire or ascertain whether such sales or mortgages shall be necessary for all or any of the purposes hereinbefore mentioned Provided (a) If it be so agreed, saj', " And from and after and subject to the pay- ments aforesaid Upoji trust to lay out and invest the residue and surplus of the monies which shall arise and be pi'oduced by such sale or sales in the name or names of him the said (T'.) his &c. in the purchase of a competent share or competent shares of the parliamentary stocks or funds of Great Britain or at interest upon government securities to be fi'om time to time altered varied and transposed in for and upon such funds or securities of the same or like nature as often as the said (7".) his heirs &c. shall think fit and to stand possessed of and interested in such stocks &c. upon the trusts follow- ing that is to say That the said (T.) his &c. shall during the life of the said {grantor) pay and satisfy unto the said {grantee) his executors &c. the said annuity or yearly &c. of &c. expressed to be hereby granted at the days and times and in manner hereinbefore appointed for payment thereof." {b) As to the effect of this clause, see Pi'ef. sect. 11. ANNUITY. 193 always that it is hereby further declared and agreed That when No. XCIX. all the trusts hereinbefore declared concerning the said term of ^''""^ "/> ninety-nine years shall in all things be fully satisfied and per- Freeholds. formed or shall have become unnecessary or incapable of beino- performed Then and thenceforth the said term or so much Cesser of term, thereof as shall not be disposed of under the trusts aforesaid shall cease determine and be absolutely void And the said Covenants. {grantor) for himself his heirs executors administrators and as- signs doth hereby covenant promise and agree with and to the said (grantee) his executors &:c. and as a separate covenant with the said (7'.) his executors administrators and assigns in manner following that is to say That he the said {grantor) now at the time of the sealing and delivery of these presents hath in him- self full power and absolute authority to charge all and sin- Grantor has gTilar the said messuages or tenements lands and hereditaments P°"<^!'" charge hereby charged and made chargeable with the payment of the said annuity or yearly sum of £ and also to demise the same with the appurtenances unto the said {T.) his executors administrators and assigns for the said term of ninety-nine years determinable as aforesaid upon the trusts and according to the true intent of these presents And also that the said premises shall and may during the same term determinable as aforesaid be peaceably and quietly holden and enjoyed as a security for the said annuity without any hindrance interrup- tion claim or demand whatsoever from or by him the said {grantor) his executors administrators or assigns or any other person or persons whomsoever And that free and clear and freely Free from in- and clearly acquitted exonerated and discharged by him the said •^"'"•^'•ances. {grantor) his executors and administrators of and from and against all and all manner of former estates rights charges and incumbrances whatsoever vlwc/ further that he the said {grantor) his heirs executors and administrators and every other person having or lawfully or equitably claiming or who shall or may have or claim any estate right title trust and interest whatsoever either at law or in equity in to or out of the said hereditaments and premises hereby granted and demised and any part thereof shall and will from time to time and at all times hereafter during the continuance of this security upon every reasonable request of the said {grantee) his executors &c. but until such sale or mortgage shall be made at the costs and charges of the said {grantor) his heirs executors or administrators and after such sale or mortgage then at the costs and charges of the person VOL. I. o 194 ANNUITY. No. XCIX. Grant of, secured on Free)iol(h. And for further assurance. That ji^antor will appear at insurance office. And not leave the kingdom without giving notice. Covenant to insure build- ings against fire. or persons requiring the same make do and execute all such further and other lawful and reasonable acts deeds matters and things whatsoever for the more effectually granting demising and assuring the said premises unto the said {T.) his executors &c. for and during the then remainder of the said term of ninety- nine years determinable as aforesaid Uiion the trusts herein- before declared as by the said {grantee) his executors kc. or his or their counsel in the law shall be lawfully and reasonably advised or devised and required And moreover that the said {grantor) shall and will from time to time during the continuance of the said annuity at the request of the said {grantee) his ex- ecutors &c. appear in person at office or any other office for life insurances within the cities of London and Westminster or send such notice in writing of his place of abode together with a certificate or certificates of the state of his health for the purpose of enabling the said {grantee) his executors &c. to insure or keep insured at the cost and charges of the said {grantor) his executors administrators or assigns any sum or sums of money not exceeding £ upon the life of him the said {grantor) And further that he the said {grantor) shall not nor will at any time hereafter during his life depart from or leave the kingdom or go or travel upon the seas or reside in foreign parts without giving every time sufficient notice in writing to the said {grantee) his executors &c. of his intention so to do in order to enable him the said {grantee) his executors &:c. to make known the same if necessary at the said office so that the additional premium or premiums if any to be thereby incurred for the purpose of keep- ing on foot the said policy of insurance on the life of the said {grantor) may be paid And also that he the said {grantor) shall not nor will do any act or thing whatsoever whereby or by means whereof any policy or policies for effecting such insurance as aforesaid shall become void or voidable or otherwise prejudiced or impeached And further that he the said {grantoi-) shall and will during the continuance of the said annuity insure or cause to be insured against loss or damage by fire in one of the London or Westminster insurance offices the messuages buildings and erections hereby demised or intended so to be in the sum of £ at least and dehver over unto the said {grantee) his executors administrators or assigns the policy or policies to be obtained in respect of such insurance and the receipts and vouchers from time to time to be obtained for or in respect of the premiums and expenses of such insurance and that in case ANNUITY, 195 the said {grantor) shall neglect so to do then it shall be lawful for ^o- XCIX. but not obligatory upon the said {grantee) his executors admi- ^/.^"^/{'^ nistrators and assigns in the like manner to insure and continue Freeholds. insured the same when and so long during the continuance of the said annuity as he or they may think proper and in such sum or sums not exceeding the said sum of £ as he or they may think proper And that the monies to be advanced by the said (grantee) his executors administrators or assigns for the premiums and expenses of and for effecting and continuing such insurance shall be a charge upon the said messuages lands and hereditaments hereby demised or intended so to be and shall and may forthwith after the advancement thereof be raised and paid by all or any of the ways and means herein- before provided for the recovery payment and satisfaction of the said annuity And it is hereby agreed and declared between and by the parties to these presents that in the event of any damage or loss happening by fire to the said messuages build- ings and erections or any part thereof the monies to be received in respect of the insurance thereof shall be laid out in rebuild- ing or repairing the premises so destroyed or damaged And the surplus if any of the last-mentioned monies shall be held upon the like trusts as are hereinbefore declared concerning the monies to be raised under the trusts of the said term of ninety- nine years determinable as aforesaid Provided always and it is hereby declared and agreed by and between the parties hereto That the said warrant of attorney and the judgment to be Warrantor entered up by virtue thereof are intended only as a collateral terKlc'd m'lly as security for the payment of the said annuity or yearly &c. on collateral se- er at the several days and in the manner hereinbefore appointed for payment thereof as aforesaid And that no execution or ex- ecutions shall be issued or taken out upon the said judgment unless and until some payment of the said annuity shall be in arrear for the space of twenty-one days next after some or one of the said days hereinbefore appointed for payment thereof as afore- said Provided nevertheless that when and so>'often as the said annuity shall be so in arrear then and in such case it shall be lawful for the said {grantee) his executors &c. to sue out such execution for recovering all or any part of the said annuity and all costs and charges, which the said {grantee) his executors &c. shall bear pay sustain or be put unto by reason of the non- payment of the same Provided always and it is hereby declared and agreed between and by the said {grantee) and {grantor) that o 2 196 ANNUITY. No. XCIX. Grant of, secured on Freeholds. Power to re- purchase. The grantee will assign an- nuity, &c. after the decease of the said {grantor) and full payment to the said {grantee) his executors administrators or assigns of the said annuity yearly rent or sum of £ and all arrears thereof up to the day of the decease of the said {grantor) and of all such costs charges and expenses as aforesaid the said {grantee) his executors administrators or assigns shall at the request costs and charges of the heirs executors or administrators of the said {grantor) acknowledge satisfaction upon the said judgment on the record thereof in due form of law or do any further or other reasonable acts matters or things that may then be re- quired in regard thereto so that for the doing thereof he the said {grantee) his executors administrators or assigns be not compelled or compellable to travel from his her or their place or places of abode And it is hereby declared and agreed by and between the parties to these presents and particularly the said {grantee) for himself his heirs executors and administrators doth hereby covenant promise and agree with and to the said {grantor) his heirs executors administrators and assigns That in case the said {grantor) or his assigns at any time after the expiration of yeai'S from the date hereof be desirous of (a) purchasing the said annuity or yearly rent-charge or sum of £ and of such his or their desire shall give unto the said {grantee) his executors administrators or assigns six calendar months' notice in writing under his hand or in heu of such notice shall pay in advance one half-year's payment of the same annuity Then and in such case from and immediately after the expiration of such notice or upon such payment in lieu thereof and upon payment by him the said {grantor) his executors &c. of the sum of £ for the repurchase of the same annuity together with all arrears and other sums which shall be then due for in respect of the same he the said {grantee) his executors &c. shall and will at the request costs &c. of the said {grantor) his executors &c. assign release and surrender or otherwise dispose of the said annuity or yearly &c. and all the then subsisting securities for the '"Same and also all and singular the heredita- ments and premises hereby made chargeable with the payment thereof for the residue then remaining and unexpired of the said term of ninety-nine years or so much thereof as shall not have been disposed of under or by virtue of the trusts herein- before expressed and shall acknowledge or cause satisfaction to be acknowledged on record of the said judgment [if any] And {a) As to the necessity of this clause, see ante, Pref. sect. 10. of receiver of rents. ANNUITY. 197 also at the like request costs and charges of the said (grantor) No.XClX. his executors &c. assign unto the said {grantor) his executors ^'""^ "/> &c. the benefit of any policy of insurance (a) which may have Freeholds. been effected by the said {grantee) his executors &c. and ' which shall be then subsisting and in force or capable of being- kept on foot or renewed in such manner and form as he the said {grantor) his executors &;c. or his or their counsel in the law shall reasonably require And this Indenture further witnesseth Testatum. That in pursuance of the said agreement in this behalf he the said {grantor) and {trustee) by the direction and on the nomi- nation of the said {grantee) testified by his executing these pre- sents doth by these presents constitute and appoint the said Appointment {receiver) receiver agent and attorney from time to time in the names of the said {grantor) and {trustee) or in the name of either of them or otherwise during the said term of ninety-nine years determinable as aforesaid to ask demand collect and receive all and every the rents and profits of all and singular the said mes- suages lands hereditaments and premises hereinbefore granted and demised or intended so to be with their appurtenances of and from the present and future tenants and occupiers thereof respectively as and when the same shall from time to time be- come due and payable A nd in case of non-payment thereof to Powerof action, take and use such lawful remedies for recoverino; and obtainin 1 , /., P secured on annuity or yearly rent-charge of pounds or any part thereof Freeholds. or from using or exercising all or any of the powers or remedies ~ hereinbefore given limited or reserved to him or them for en- forcing such payment or for obtaining possession of the said messuages tenements lands and premises so charged therewith as aforesaid or any part thereof And also shall not prevent nor nor trustee be construed to restrain the said (trustee) his executors ad- f^o"! ^^^ecuting ^ ■' the trusts. ministrators or assigns from executing or exercising all or any of the trusts powers or authorities hereinbefore reposed given limited or reserved to him or them] In witness &c. GRANTS OF ANNUITIES SECURED ON COPYHOLDS. 1. Grant by Surrender. i 3, Warrant of Attorney a Se- 2. Estates of Surrenderor and Sur- I curity. renderee until Admission. Sect. 1. Where an annuity is to be secured on copyholds, it is Grant by sur- usual either to covenant to make a surrender, or, which is the safer '■e"^^'^- course, to make a previous surrender on condition, with a deed of grant, containing the usual covenants. A demise to a trustee is not commonly made, as no tei-m can be granted without the hcence of the lord for longer than one year. 2. Where an actual surrender is made, the surrenderor remains Estate of sur- tenant to the lord until admission, insomuch, that prior to the 55 Geo. ''e'"l<^''°*' ^^^ 3, c. 192, see 7 Will. 4 & 1 Vict. c. 26, the surrenderor could not, after until admit- such surrender, devise the copyholds Avithout a previous surrender to ^'^"*^^- his will, Kencbel v. Scrafion, 8 Ves. 30; Doe v. Wroot, 5 E. 130; Coote, Morg. 111. So likewise a surrenderee, not being tenant until admittance, cannot in the meantime pass the lands, although he may make an equitable transfer of them, Doe v. Tofield, 11 E. 246; nor recover actual possession of the premises on default; but the surren- deror being considered in equity as trustee for the surrenderee, lluld- fast V. Clapham, 1 T. R. 600, it is not usual for him to be admitted until default, in oider to avoid the fees for admission and peribrmuuce of the customary services. 3. Formerly a judgment would not attach upon copyholds, although Wanam of at- it would bind the goods of the copyholder, and give priority, as in ^"'""^y " '"^^'■"" 202 ANNUITY. Secured on other cases, 2 Eq. Ca. Ab. 222. By 1 & 2 Vict. c. 110, s. 11, under °^y ° . *L_ the writ of elegit, may be taken all lands and hereditaments, including Copyholds ha- ij^,j(jg ^nd hereditaments of copyhold or customary tenure, of which ble to execution ." . , on judgment. the person against whom execution is sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up judin<>- the said customary or copyhold lands hereditaments and pre- mises with the payment of the said annuity or yearly sum of £ and for the further and more effectual limiting and assur- ing the same premises to the use of the said E. F. his heirs and assigns upon the trusts aforesaid and according to the true intent and meaning of these presents as by the said C. D. his VOL. 1. p er assur- ance. 210 ANNl'ITY. No. CI. executors administrators or assigns or the said E. F. his heirs or Secure don assi^ns or his their or any of their counsel learned in the law Cojii/liolds. ^ 111-1 I'll ■ shall be lawfully and reasonably devised or advised and re- As to insurance quired And moreover that he the said A. B. shall not nor °^^^^^' will at any time or times hereafter depart from nor leave the kingdom on military service or otherwise without first giving to the said C. D. his executors administrators or assigns one D calendar month's notice thereof in writing under the hand of him the said A. B. Aiid that the said A. B. shall and will from time to time and at all times during his life at the request of the. said C. D. his executors administrators or assigns appear in person as often as there shall be occasion upon having reasonable notice at any office or place of insurance or send to such office notice of the place of abode of him the said A. B. and if neces- sary vouchers or certificates of the state of his health in order that the said C. D. his executors administrators and assigns may be enabled to insure his and their interest in the life of the said A. B. in such manner as he or they may think advisable [Wheyi the estate is large, it may here be desirable to insert the ordinary form of an aypointment of a rcceirer of the rents, see ante, Agreement as pp.197 — 201] And this Indenture further witnesseth And it IS 10 ju gment. j^gj-g^^y declared and agreed by and between the said parties to these presents that the judgment to be entered up against the said A. B. as aforesaid upon the said recited warrant of attorney is intended and agreed to be a fiirther security to the said C. D. his executors administrators and assigns for the said annuity or yearly sum of £ and such proportionate part thereof as aforesaid but that no execution or executions shall be issued or taken upon such judgment unless and until the said annuity or yearly sum or some part thereof or such proportionate part thereof shall be in arrear for the sjmce of thirty-one days next after the same shall become due and payable A nd that in case the said annuity or yearly sum of £ or any part thereof or such proportionate part thereof shall be behind and unpaid by the space of thirty-one days then and in such case and so often as the same shall happen it shall and may be lawful to and for the said C. D. his executors administrators or assigns to sue out such execution or executions upon or by virtue of the said judgment as he or they shall see fit for the recovery of the arrears of the said annuity and all costs and expenses which he or they shall bear pay or sustain for or by reason of the non- payment thereof A7id it is hereby further declared and agreed ANXLITY. 211 that the said C. D. his executors administrators or assigns shall No. CI. by with and out of the money to be recovered or raised by Secured on '' J ^ J Copyholds, the ways and means last mentioned pay and satisfy himself and themselves all arrears of the said annuity or yearly sum of £ and all costs charges and expenses occasioned by non-pay- ment thereof and shall pay the residue and surplus of the monies so to be recovered or raised to the said A. B. his executors ad- ministrators or assigns for his and their own use and benefit Provided always Euid it is hereby agreed and declared by and between the said parties to these presents that it shall not be necessary for the said C. D. his executors administrators or assigns to revive or cause to be revived the said judgment or do any act matter or thing to keep the same on foot notwithstanding the same judgment shall have been entered of record for the space of one year or upwards and that the said A. B. his heirs executors or administrators shall not nor will have or take nor attempt by any ways or means whatsoever to have or take any advantage of the want of reviving or keeping the said judgment on foot and that if he or they shall attempt so to do by action or other proceeding or proceedings whatsoever this present agreement shall or may be pleaded or shown in bar thereto any rule or practice of the Court of Queen's Bench to the contrary thereof in anywise notwithstanding Provided nevertheless that after the decease of the said A. B. and full payment to the said C. D. his executors administrators and assigns of the said annuity or yearly sum of £ and all arrears thereof up to the day of the decease of the said A. B. and of all such costs charges and expenses as aforesaid the said C. D. his executors administrators or assigns shall and will at the request costs and char"'es o'i the heirs executors or administrators of the said A. B. acknowledge satisfaction upon the record of the said judgment in due form of law or do any further or other reasonable act or acts matters or things that may then be required in regard thereto so that for the doing thereof the said C. D. his executors administrators or assigns be not compellable to travel from his or their usual place or jjlaces of abode Provided always and it Power to re- is hereby declared and agreed by and between the said C. D. P"'''^^'^^^- and the said A. B. that in case the said A. B. shall at any time after the exjjiration of two years to be comjjuted from the day of the date of these presents be desirous of re-purchasing the said annuity or yearly sum of £ and shall give to llie said C. D. his executors administrators or assigns three calendar months' p2 212 ANNUITY, Copyholds. No. CI. notice in writing of such desire and upon the expiration of the S:'ciire(i on g^id notice or at any time afterwards and on giving such notice as aforesaid shall well and truly pay or cause to be paid to the said C. D. his executors administrators or assigns the full sum of £ being the consideration money for the purchase of the said annuity and do and shall also well and truly pay or cause to be paid to the said C. D.his executors administrators or assigns all sums of money that shall then be due to him or them for or on account of the said annuity of £ and also a proportionate part of the same annuity up to and inclusive of the day of re- purchasing the same and shall also well and truly pay or cause to be paid to the said E. F. his heirs or assigns all sums of money which shall then be due to him or them for or on account of such costs charges and expenses as shall have been advanced paid or incurred by him or them in the execution of the trusts aforesaid then and in that case the said C. D. his executors ad- ministrators or assigns shall and will accept and take the said sum of £ as and for the price of re-purchase and in satis- faction and full discharge of the said annuity of £ and upon the request and at the costs and charges of the said A. B. his heirs executors or administrators the said C. D. his executors administrators or assigns shall and will acknowledge satisfaction upon the record of the said judgment and then and in such case the said annuity of £ and the several covenants and agree- ments powers and remedies hereinbefore contained for payment and security of the said annuity shall cease and be void to all intents and purposes whatsoever and then also the said E. F. his heirs or assigns shall and will at the request costs and charges of the said A. B. re-surrender and re-assure all and sino;ular the said customary or copyhold hereditaments and premises with their appurtenances to the use of the said A. B. and his assigns for his hfe subject nevertheless and without prejudice to any such sales or mortgages which may be made at any time here- after under and by virtue of the trusts hereinbefoi'e contained and then also the said C. D. his executors administrators or assigns shall and will at the like request costs and charges of the said A. B, assign and transfer to him the said A. B. his executors administrators or assigns for his and their own use and benefit any policy or policies of insurance which may have been effected by the said C. D. upon the life of the said A. B. in connexion with this present security In witness &c. ANNUITY. 21 No. CII. No. CII. Demise of a Leasehold Estate as a Collateral Security for the Secured on Payment of an Annuity for Lives. ease^o^.^ o Tliis Indenture kc. Between {grantor) of kc. of the one part Recital of {grantee) of kc. of the other part Whereas by indenture bear- ^^^^' ing date kc. and made between {original lessor) tlierein de- scribed of the one part and (lessee) also therein described of the other part For the considerations therein mentioned the said (lessor) did demise unto the said (lessee) his executors ad- ministrators and assigns All that piece or parcel of ground &c. To hold the same with the appurtenances unto the said (lessee) his executors administrators and assigns from the day of then last past during the term of years tlience next ensuing under the clear yearly rent of £ payable quarterly on the days therein mentioned And subject to the several covenants agreements and provisoes therein contained And whereas by divers mesne assignments and other acts in the Mesne assign- law particularly by indenture of assignment bearing date on or "^'^"'s- about the day of and made between {assignor) therein described of the one part and the said {grantor) of the other part the said piece or parcel of ground messuage buildings and other the premises comprised in the said recited indenture were assigned to or became vested in the said {grantor) And whereas Contract for the said (grantor) in consideration of the sum of £ to be purchase. to him paid by the said (grantee) hath agreed to grant unto him the said {grantee) his executors administrators and assigns one annuity &:c. during the natural lives of (nominees) and the life of the survivor of them Ayid for better securing the payment of the Bond, said annuity to the said {grantee) he the said (grantor) by his bond &c. bearing even date herewith and executed immediately before these presents is and stands bound to the said (grantee) his executors administrators and assigns in the penal sum of £ with a condition thereunder written that if the said {grantor) his executors administrators or assigns should and did well and truly pay unto the said (grantee) his executors &c. during the lives of the said {N) and the life of the longest liver of them the annuity or &:c. of £ clear of all taxes charges and deductions whatsoever [naine the days] or on the days anil in manner therein mentioned then the said bond to be void And 214 ANNUITY. trusts. No. CII. whereas previous to the granting of the said annuity he the said Secured on (^grantor) agreed to assign the messuage tenements and premises — '^J!fmi^l^ gQ assioned to and vested in him as aforesaid as a further secu- Agreement to ^,j, ^^^ payment of the same annuity in such manner as is here- inafter mentioned and expressed Now Sec. in pursuance and per- formance of the said agreement and in consideration of &c. to the said {grantor) in &:c. paid by the s,Q\dL {grantee) at &c. in full for the absolute purchase of the said annuity so granted and payable to him the said {grantee) by the said bond as aforesaid the receipt &c. and for &c. payment &c. unto &c. {grantee) his &c. during the lives (fee. He the said {grantor) Doth demise unto the said {grantee) his executors administrators and assigns All that (fee. comprised in and demised by the said indenture of lease as hereinbefore is mentioned with their rights easements Habencium. and appurtenances To have and to hold the said messuage (fee. unto the said {grantee) his executors (fee. for the residue of the said term of years except the last three days of the Declaration of said term subject to the proviso hereinafter contained Upon trust for the better securing the payment of the said annuity or (fee. of £ according to the true intent and meaning of the said in part recited bond but upon trust {to permit grantor to re- ceive rents until default, see ante, p. 191) and upon further trust That in case the said annuity or any part thereof shall be un- paid for thirty days after any day appointed for the payment thereof by the said recited .bond it shall be lawful for the said {grantee) his executors (fee. during the lives ed Avith the said annuitv of £ and every part thereof with the appurtenances To hold the same unto the said ( T.) his executors administrators and assigns from the day next before the day of the date of the now reciting indenture for and during and unto the full end and term of years thence next ensuing and fully to be complete and ended if the said {grantor) should so long live Upon the trusts therein expressed and declared of and concerning the same And by the now reciting indenture it was also agreed that the said {grantor) should be at liberty at any time thereafter to repurchase the said annuity at the price and on the terms therein mentioned And whereas the payment Warrant of at- of the said annuity was further secured by a judgment confessed ° " ^" in her Majesty's Court of Queen's Bench at Westminster by virtue of a warrant of attorney from the {grantor) for that pur- pose And whereas the said {assignor) did effect an insurance Insurance, with the office of on the life of the said {grantor) for the sum of £ to be paid to the said (assignor) or his executors on the decease of the said {grantor) in consideration of the annual premium of £ And whereas the said {as- signee) hath contracted and agreed with the said {assignor) for the absolute purchase of the said annuity at the price or sum of £ Now this Indenture witnesseth That in pursuance of the Testatum, said agreement and in consideration of the sum of £ of ^c. to the said {assignor) paid by &:c. the receipt whereof &c. He the said {assignor) doth by these presents bargain sell assign transfer and set over unto the said {assignee) his executors admi- nistrators and assigns All that the said annuity of £ in and by the said in part recited indenture granted secured and made payable unto the said {assignor) his executors administrators and assigns as hereinbefore mentioned and all arrears thereof and all and every sum and sums of money to become due and payable for and on account of the said annuity together with all remedies and powers in and by the said in part recited indenture given for recovering and receiving the same And also the judgment entered upon the said warrant of attorney and all benefit and advantage of the said judgment and all sum and sums of money to be recovered or obtained by virtue thereof And also the said policy of insurance and all and every sum and sums of money secured or recoverable thereon And all the right title interest trust property possession claim and demand whatsoever both at 224 ANNUITY. Power of at- torney. No. CIV. law and in equity of him the said {assignor) of in to or out of Assignme nt, tj^g same annuity judgment pohcy of insurance and premises Habendum. and every part thereof To have and to hold receive and enjoy the same annuity (fee. and all arrears and growing payments thereof together with the said powers and remedies and means for enforcing the same and the said judgment and policy of insurance and all and singular other the premises hereby as- signed unto the said {assignee) his executors administrators and assigns from the day of now last past during the natural life of the said {grantor) as fully absolutely and bene- ficially to all intents and purposes whatsoever as he the said {assignor) might have held and enjoyed them if these presents had not been made And in consideration of the premises the said {assignor) doth by these presents appoint the said {assignee) his executors administrators and assigns to be the attorney and attornies of the said {assignor') his executors and administrators to demand recover and receive the annuity hereby assigned or intended so to be and to give receipts and other discharges for the same respectively and on non-payment thereof or any part thereof respectively in his or their name or names but at the risk and costs of the said {assignee) his executors administrators or assigns to bring commence carry on and prosecute any action suit or other proceeding for compelling payment thereof and generally to execute and perform any other act deed or thing relative to the premises as fully as the said {assignor) his exe- cutors or administrators might or could have done in his or their own person or persons in case these presents had not been executed and to appoint a substitute or substitutes for all or any of the purposes aforesaid and whatsoever the said {assignee) his executors administrators or assigns or his or their substitute or substitutes shall lawfully do in the premises the said {as- signor) doth hereby for himself his executors and administrators covenant and agree with the said {assignee) his executors admi- nistrators and assigns to allow and confirm And this Inden- ture further icitnesseth That for the considerations aforesaid and also in consideration of (fee. to the said {assignor s trustee) in (fee. paid by the said {assignee's trustee) (fee. He the {assignoi^'' s T.) by the direction of the said {assignor) and at the request and nomi- nation of the said {assignee) testified by their severally executing Assignment by these presents doth hereby bargain sell and assign And the auothei-'^'^^ ^° said {assignor) at the like request and appointment of the said {assignee) doth hereby assign and confirm unto the said {assignee s Further testa tuni. ANNUITY. 225 T.) his executors administrators and assigns All those the said No. CIV. messuages and tenements lands and hereditaments &c. in and Assignment. by the said in part recited indenture demised unto the said {assignor s T.) his executors &c. And all the estate right title interest term and terms of years &c. claim and demand what- soever of him the said {assignoi-' s 2\) and {assignor) or either of them of in to or out of the same To have &c. the mes- suages and tenements lands hereditaments and all and singular other the premises hereby assigned or otherwise assured or in- tended so to be and every part thereof with the appurtenances unto the said {assignor s T.) his executors administrators and assigns henceforth for and during all the residue and remainder of the said term of years now to come and unexpired Upon the trusts nevertheless and to and for the ends intents and Declaration of ])urposes in or by the said indenture declared or expressed con- '^''"^'^®* cerning the same and in such manner that all the benefit and advantage of the same trusts in favour of the said {assignor) his executors administrators and assigns shall henceforth belong to and be received and enjoyed by the said {assignee) his executors administrators and assigns according to the true intent and mean- ing of these presents (a) And the said {assignor's T.) for himself Covenant by his executors administrators and assigns doth hereby covenant and \\^^^°\^q h^th^ declare with and to the said {assignee's T.) his executors- adminis- done no act to trators and assigns by these presents That he the said {assignor s T.) hath not at any time heretofore made done executed committed or knowingly or wilfully suffered any act matter or thing whatso- ever whereby or by reason or means whereof the said messuages («) If, instead of assigning the term to a new trustee, the old trustee be continued, omit tlie further testatum, and say, "And it is licroby declared Declaration of and agreed by and between the jjarties to tliese presents and particularly the ^'""*^'^ '** ^° ''"^ said {T.) at the request and instance of the said {assignor) doth hereby for himself his heirs executors administrators and assigns covenant and declare with and to the said {assirjnee) his executors administrators and assigns Tiiat lie the said {T.) his executors administrators and assigns shall and will from time to time and at all times hereafter during the continuance of the said term of years stand possessed of and be interested in the said messuages and tenements lands and heieditaments subject as aforesaid Upon flic trusts and to and for the ends intents and purposes expressed and declared of and concerning the same nevertheless so and in such manner that all benefit and advantage of the same trusts in favour of the said {assignor) his executors administrators and assigns shall henceforth belong to and be received and enjoyed by the said {assignee) his executors administrators and assigns And tlie said {T.) doth hereby &c." {covenant that he has done no act to incumber, as above). VOL. I. Q 226 ANNUITY. assignor. Annuity sub- sisting, good right to assign. No act to in- cumber. No. CIV. and tenements lands and hereditaments hereby assigned or other- Assignment. ^jgg assured or intended so to be or the term of years therein or any part thereof are is can shall or may be impeached charged incumbered or prejudicially affected in any way whatso- Covenants from ever And the said (assignor') for himself his heirs executors and administrators doth hereby covenant and agree with the said (assignee) his executors administrators and assigns That for and notwithstanding any act deed matter or thing by him the said (assignor) made done committed or knowingly suffered to the contrary the said annuity &:c. of £ is now subsisting and unredeemed and good and valid both at law and in equity and also the several securities given for the same are now in force And that he the said (assigno?') hath at the time of executing these presents good right and full power and authority to bargain sell and assign the said annuity and other the premises hereby assigned or otherwise assured or intended so to be in manner aforesaid And further that he the said (assignor) hath not at any time heretofore done or knowingly or willingly suffered nor shall nor will make do or suffer any act deed matter or thing- whatsoever whereby or by reason whereof the said annuity or any part thereof or any of the premises hereby assigned or other- wise assured or intended so to be are is can or may be impeached charged incumbered or in anywise prejudicially affected or the said warrant of attorney and policy of insurance or either of them are is can or may be in any way assigned satisfied released va- cated or extinguished in consequence of which the said (assignee) shall may or can be prevented or hindered from receiving or taking the said annuity or &c. of £ or any part thereof as and when the same from time to time shall become due and payable And that he the said (assignor) his executors administra- tors and assigns shall and will from time to time at the reasonable request and at the costs and charges of the said (assignee) his executors kc. make do and execute all and every such further and other lawful and reasonable acts deeds assignments and assur- ances in the law whatsoever for the further better more perfectly and absolutely assigning and assuring the said annuity judg- ment policy of insurance and premises unto and to the use of the said (assignee), his executors administrators and assigns and for better enabling him and them to recover and receive the said annuity and all future payments thereof in such manner and form as by the said (assignee) his executors administra- tors or assigns or his or their counsel in the law shall be rea- Further assur- ance. to in- as- ANNUITY. 227 sonably advised devised or required provided that the person No. Civ. or persons required to make the same shall not be compelled Assignmeui. or compellable to go or travel from his or their respective places of abode for the doing thereof And the said {assignee) for him- Covenant by self his heirs executors and administrators doth hereby covenant f ^'5?'}^*^ with the said {assignor) his heirs executors or administrators signor from that he the said {assignee) his heirs executors and administrators quenre'oThis or some or one of them shall and will save defend keep harmless "'*'^<^ ^^'"S and indemnified the said {assignor) his heirs executors and administrators and his and their lands tenements goods and chattels of from and against all costs charges damages and ex- penses whatsoever which can shall or may be sustained or incurred or which may become payable for or by reason or in consequence of any action or suit or actions or suits which shall or may be brought or prosecuted in the name or names of the said {assignor) his executors or administrators or any of them under or by virtue of. any power or authority hereby given or in pursuance hereof to be given to the said {assignee) his ex- ecutors administrators or assigns so as the same do not arise or accrue through the collusion or act of the said {assignor) his executors or administrators In witness &c. No. CV. No. CV. Assignment of Anmdty to Trustees for the purpose of exonerating Equitable Part of the Estates charged therewith {a). Release. This Indenture made &c. Between {Annuitant) of &;c. of the first part {Owner) of &c. of the second part A. B. (a trustee for a term of years for securing the annuity) of the third part and C. and D. of &c. of the fourth part Whereas [Recital of a will giving an annuity of £500 to the annuitant for her life with powers of distress and entry and a limitation of a term of 600 years to A. B. upon trusts for better securing the annuity with remainder to the owner in fee] And whereas the said {().) hath contracted for the sale of certain parts of the hereditaments mentioned in the schedule to these presents and may hereafter dispose of (a) This form has been frequently adopted to obviate tlic objection that a person having a rent-charge, by releasing his right in part of the laud charged, extinguishes at law tlie whole rent-cliargc. u2 228 ANNUITY. No. CV. other parts of the said hereditaments and the said {A.) hatli Eqiiiiubie therefore uj)on tlie apphcation of the said (O.) agreed that the "il!^!!: — same hereditaments should be discharged from the said annuity or yearly rent Now this Indenture witnesseth That in pursuance of the said aoreement and in consideration of the sum of lOs. of lawful money of Great Britain to the said (^1.) paid by the said C. and D. at or before the seahng and delivery of these pre- sents the receipt whereof is hereby acknowledged she the said {A.) doth by these presents grant bargain sell and assign unto the said C. and D. and their executors administrators and as- signs All that the annuity or yearly rent of £500 devised to the said {A.) by the said will of the said {testator) and all powers and remedies vested in the said {A.) for enforcing payment of the said annuity or yearly rent when in arrear And all the estate right title and interest of her the said {A.) in or to the same annuity or yearly rent To have and to hold the said annuity or yearly rent hereby assigned or intended so to be unto the said C. and D. and their executors administrators and as- sio-ns In trust that the said C. and D. or the survivor of them or the executors administrators or assigns of such survivor do henceforth forbear from claiming or enforcing payment of the same annuity or yearly rent from or out of the several heredita- ments mentioned in the schedule to these presents or any of the same or the appurtenances thereunto belonging And in trust that the said C. and D. or the survivor of them or the executors administrators or assigns of such survivor do from time to time receive and enforce payment of the same annuity or yearly rent from and out of the several other hereditaments devised by the said will of the said {T.) solely and exclusively of the heredita- ments mentioned in the schedule to these presents and their appurtenances and do from time to time pay over the said an- nuity or yearly rent as and when the same shall be so received unto the said {A.) for her own use and benefit And this Inden- ture lastly witnesseth and the said A. B. doth hereby declare and agree and the said ( O.) doth hereby direct and appoint That the said A. B. his executors administrators and assigns shall henceforth stand and be possessed of all such of the manors and hereditaments comprised in the said term of 600 years as are not specified in the schedule to these presents in trust that the same manors and hereditaments may be the sole and exclusive fund for payment of the said annuity or yearly rent of £500 in exoneration of the hereditaments comprised in the said schedule ANNUITY. 2'29 [^Covenant hy annuitant against incumbrances Provisoes for the No. CV. appointment and indemnitij of the trustees^ In witness &c. Equitable Ihe schedule &c. No. CVI. No. CVI. Release of an Annuity on a Re-purchase. Release of an Annuity, This Indenture made &:c. Between (releasor) of &:c. of the first Recitals, part {trustee) a trustee named for and on behalf o{ {releasee) of (fcc. of the second part and {releasee) of (fee. of the third part WJiereas by Indenture &c. {recite grant of annuity see Assign- ment of Annuity) And whereas kc. {recite warrant of attorney) And whereas the annuity is still subsisting and all arrears of the Annuity still same have been paid up to the day of the date of these presents ^" ^'^''"S* as the said {releasor) doth hereby acknowledge And whereas the said {releasee) hath agreed with the said {releasor) for tiie re- purchase of the said annuity of £ at or for the price or sum of £ and it hath been thereupon agreed that the said annuity and the securities for the same should be released and the said term of ninety-nine years be surrendered in manner hereinafter mentioned Now this Indenture witnesseth That in Testatum. ])ursuance of the said agreement and in consideration of the sum of £ of lawful money of Great Britain to the said {releasor) in hand paid by the said {releasee) the receipt (fee. He the said {releasor) Doth hereby release and for ever discharge the said {releasee) his heirs executors administrators and assigns and every of them ^nrf the said messuage hereditaments and pre- mises charged with the payment of the said annuity of £ under and by virtue of the said recited indenture and every of them and every part and parcel thereof from the same annuity and all future payments thereof and from all powers and reme- dies for recovering and enforcing the payment thereof And also from all actions suits causes of action and suit costs charges damages expenses claims and demands whatsoever for or on account of the same annuity or any part thereof or any other security executed or given for the same or in anywise relating thereto And this Indenture further witnesseth. That in further Further testa- pursuance of the said agreement and in consideration of the """■ 230 ANNUITY. No. CVI. premises He the said {T.) at the request and by the direction of Rdeaxe of an the said {releasor) testified &c. doth hereby release surrender """'^^' — and yield up unto the said {releasee) All that messuage (fee. and all and singvdar other the premises which by the said herein- ' before in part recited indenture were demised to the said {7\) his executors &c. for the term &c. determinable as aforesaid with their and every of their appurtenances And all the estate &c. To the intent that the said term of ninety-nine years shall henceforth be merged and extinguished in the freehold and Covenant inheritance of the same premises And each of them the said against incum- /^g^^^^^^^N ^^^^ (7^) gg far as relates to his own acts deeds and defaults Doth hereby for himself his heirs executors and admi- nistrators covenant and declare with and to the said {releasee) his executors administrators and assigns that they the said {re- leasor) and ( T.) have not nor hath either of them at any time here- tofore made done committed or executed or been parties or party or privy to any act deed matter or thing whatsoever whereby or by reason or means whereof the said {releasor) is prevented or hindered from releasing the said annuity of £ and other premises hereinbefore released or intended so to be or whereby or by reason or means whereof the said annuity and other pre- mises hereby released or intended so to be or any of them or any part or parts thereof are is can shall or may be assigned charged affected or incumbered in title estate or otherwise how- soever In witness (fee. Annuities in Deeds, see Index to Precedents. APPOIxNTMENTS. 231 APPOINTMENTS. 1. Definition. Appointments in Execution OF A Power. 2. Operation of an Appointment in Execution of a Poicer. 3. Appointments by Femes Covert. 4. Requisites of an Appointrnait. 5. Poicer of Revocation. G. Distributive Appointments. Exclusive Appointments. lUusort/ Appointment Act, 11 Geo. 4 cV 1 Will. 4, c. 46. 7. Effect of certain Words in Ap- pointments. 8. Stamp Duty on Appointments. Appointments delegating an Authority. 9. Delegation of Authority. 10. Naked Authority, by lohom ex- ercised. 1 1 . Distinction heticeen a nahed Au- thority and one coupled with an Interest. 12. Delegated Authority, how to be executed. 13. Not to be delegated. Sect. 1. An appointment as a deed may be considered in two ways, Definition, either as a relative and dependent in-trument, springing- out of and derivinjT its force from the Statute of Uses ; or as an irrelative and independent instrument, delegating an authority to one person to act for or in behalf of another, 1 Wood's Conv. 465. Appointments in Execution of a Power. 2. An appointment, in the first sense of the word, is an instrument Operation of an adapted for carrvinff into effect those particular modifications of uses »PPoint'"'^"t '" 1 .' o I execution ot a which are denominated powers. Thus, suppose an estate be conveyed power. to A. and his heirs to the use of B. for life, remainder to such son as B. shall appoint, and B. appoints to the use of his first son ; then the use vests in the son by the appointment, and the possession by tlie statute, which union of the use and possession constitutes what is termed the legal estate. The appointment operates not as a convey- ance, but as the limitation of the use; the right to make tins desig- nation is termed the power ; the exercise of the power is termed an ai)pointnient; the person exercising it the appointor, and the person taking under it the appointee, Butler's Co. Litt. 271 b, n. An ap- pointment is, therefore, controlled by the pre-existing instrument on which it is founded; for, in notion of law, any one taking by virtue of an appointment is considered as taking under the instrument giving the power ; with this restriction, however, that reference must be had to the nature of the instruments in construing the validity of an :i])- jiointment. If the power be executed by will, the interest of the ap- pointee, who is considered in the light of a devisee, will be ambulatory and revocable like tlie will itself, and conscr|ueiitly sul)j(ct to the chance of a lapyc, if the ajijiointcc die in the lirclime of the apj)oinlor, 232 APPOINTMENTS. Appointments. Diihe of Marlhorovgh v. Godolphin, 2 Ves. 61 ; but if made by any ~ otbev instrument or deed, not in its nature revocable, the property upon which it attaches will be absolutely vested in the appointee, in like manner as if he had been named in the original conveyance. It follows, likewise, from the nature of this instrument, that no limitation in an appointment will be valid, unless it would have been so, if it had been made by the conveyance creating the power. Limitations, therefore, to the unborn children of an unborn child are void, because the law would not permit such a conveyance, as tending to a pei'- petuity, Robinson v. Hardcastle, 2 T. R. 241. See Sugd. Pow. Ch. II. s. 3. Appointment 3. Where powers of appointment are given to women over real or hy Jemes covert. pgj.gQj^aJ estates, to be executed by them, notwithstanding coverture, or whether covert or sole, an appointment may be made by them in execution of such powers. An appointment is applicable, under the sanction of the Court of Chancery, to the disposition of separate pro- perty by a feme covert, who, though disabled at common law to make a will or regular conveyance, is allowed in equity a disposing power notwithstanding her coverture, and the instrument by which she exer- cises this power, whether in the shape of a will or otherwise, is con- sidered as taking effect in the nature of an appointment. And in cases where married women are entitled to separate property in the hands of trustees, tlieir appointment will be valid, although the trus- tees are not parties thereto. Peacock v. 3Ionh, 2 Ves. 190 ; Mippon V. Dawding, Ambl. 565. 4. Where a person may dispose of an estate either under a power of appointment or as absolute owner of it, it is necessary, if he wish to convey under the power, to recite or refer to it ; but when a dispo- sition can only take effect as an appointment, it is not absolutely ne- cessary to refer to or recite the deed creating the power, if it suffi- ciently appear that the party intend exercising it, 6 Co. 17 ; Cro. Eliz. 877. It is usual, in deeds of appointment, for the party exercising the power to declare, that he acts not only in exercise of that particular power, but also of every other power enabhng him in that behalf. This latter clause is said in some cases to have reached powers that were understood to be extinguished, 1 Sugd. Pow. 243, 6th edit. Likewise every incidental circumstance prescribed in the creation of the power ought to be complied with in the instrument by which the power is executed, lb. 264. If a writing is required, a disposition by parol is not vahd, 1 Vern. 340. If a seal be required, a writing under hand will not be sufficient. So likewise as to signing, attestation, number and quality of witnesses, consent of particular persons, giving notice, &c., 1 Sugd. Pow. 294, 6th edit. If a deed be expressly re- quired, it cannot be executed by will, Darlington v. Pulteney, Cowp. 260 ; but where a power is given generally, without any restriction as to the mode of execution, as " by any writing' or instrument," it may- Requisites of an appoint- ment. APPOINTMENTS. 233 be exercised by deed or will. See Collard v. Sampson, 4 De G. Mac. Appointments. & G. 224. (As to a]ipointments in a will, see ;?o. VOL. I. s 258 APrOINTMENTS. No. CXVI. Annitity and Portion. Proviso for cesser of term. (that is to say) In trust to permit the person or persons entitled for the time beins to the said manors and other hereditaments in remainder or reversion immediately expectant upon the deter- mination of the said term of 200 years to receive and take the rents issues and profits of the said manors and other heredita- ments until the said annual sum or yearly rent-charge of £ or some part thereof shall be in arrear and unpaid by the space of sixty days next after the same ought to be paid as aforesaid And in case and so often as the same annual sum or yearly rent-charge or any part thereof shall be in arrear and unpaid by the said space of sixty days then and so often as the same shall happen (although no formal demand shall have been made of the said annual sum or yearly rent-charge or the arrears thereof) Upon trust that the said A. and B. or the survivor of them or the exe- cutors administrators and assigns of such survivor do and shall by and out of the rents and profits of the said manors and other hereditaments or by demising- leasing mortgaging or selling the same for all or any part of the said term of 200 years or by bringing actions against the tenants or occupiers of the premises for the recovery of the rents then in arrear or by more than one of or by all the ways and means hereinbefore mentioned or by any other reasonable ways and means raise and pay to the said (/. W.) and her assigns all the arrears of the said annual sum or yearly rent-charge of £ and all such costs charges damages and expenses as the said (/. W.) and her assigns or the said A. and B. or the survivor of them or the executors adminis- trators or assigns of such survivor shall sustain expend or be put unto by reason of the nonpayment thereof and do and shall pay the surplus if any of the monies raised by the ways and means afore- said to the person or persons who for the time being shall be en- titled to the said manors and other hereditaments in remainder or reversion immediately expectant on the determination of the said term of 200 years to and for his and their own use and benefit Provided always and it is hereby agreed and declared between and by the parties to these present That when all and every the trusts of the said terAi of 200 years shall be fully performed or shall become unnecessary or incapable of taking effect and when the said A. and B. their executors administrators and assigns shall be paid and satisfied all costs charges da- mages and expenses which they or any of them shall bear pay incur or be put unto by reason or on account of the execution of the trusts hereby in them reposed or in anywise relating APPOINTMENTS. 259 thereto (which costs and expenses may be raised by all or any of No. CXVI. the means aforesaid) the said term of 200 years shall (but -^"""'Xv ""fi 1 • 1 • 1 • !• T " • 1 • 1 1 11 Portion. subject and without prejudice to any disposition which shall • have been made of the same in exercise of the trusts herein- before expressed and contained) cease determine and be void And this Indenture further wit nesscth That in pursuance and fur- Appointment ther performance of the said agreement so far as the same chir^'ed"on" relates to the said sum of £ agreed by the said {father) estate. to be charged by him for the portion of the said (/. W.) in exercise of the power of charging with portions to the said (father) given or limited by the said recited indenture of settlement and for the considerations hereinbefore mentioned and pursuant to and by force and virtue and in part exercise and execution of the said last-mentioned power and of every other power or autho- rity enabling the said (father) in this behalf he the said {father) doth by this deed or instrument in writing by him sealed and delivered and so intended to be attested as hereinbefore is men- tioned (but subject and without prejudice as hereinbefore is mentioned) Subject and charge the manors and other heredita- ments hereinbefore charged or intended so to be with the said annual sum or yearly rent-charge of £ with their rights members appurtenances and the reversion and reversions re- mainder and remainders yearly and other rents issues and pro- fits thereof and of every part and parcel thereof to and with the payment of the said sum of £ of la\A'ful money of Great Britain to the said (/. W.) and to be an interest vested in her the said (7. W.) immediately upon or after \he solemnization of the said intended marriage and to be from thenceforth attended with interest after the rate of £5 for every hundred by the year to be paid by two even and equal half-yearly payments in every year the first half-yearly payment of the same to be made at the ex])iration of six calendar months next after the solemnization of the said intended marriage And it is hereby agreed and Declaration as declared between and by the parties to these presents that im- ^^ '^ort^on Yo' mediately or as soon as lawfully may be after the sealing and trustees. delivery of these presents the said (/. W.) shall by the said in- denture hereinbefore mentioned to be already prepared and engrossed and to be endorsed on this present indenture assign the said sum of £ and the interest thereof to the said C. and D. their executors administrators and assigns upon the trusts hereinafter expressed and contained of or concerning the same And this Indenture also witnesseth That in pursuance s2 260 APPOINTMENTS. No. CXVI. Annuitii and Portion. Limitation of term of years to receive por- tion. and further performance of the said agreement and for further securino- the said sum of £ and faciHtatinai ty to agreements hereinafter contained on the part of the said {second demm'tVagainst party) he the said {first party) doth hereby for himself his exe- ^^^ portion of cutors administrators and assigns covenant with the said {second party) his executors administrators and assigns in the manner following (that is to say) that he the said {first party) his exe- cut(jrs &c. shall and will from time to time and at all times hereafter during the residue now to come and unexpired of the said term of years by the said recited indenture of lease granted as aforesaid well and truly pay or cause to be paid unto the said {original lessor) his executors administrators or assigns or such other person or persons as shall from time to time be entitled to receive the said ground rent or yearly sum of £ reserved by the said recited indenture of lease the clear yearly rent or sum of £ being one {the proportion) ])art of VOL. I. U 290 APPORTIONMENT. No. CXXXII. the said ground rent or yearly sum when and as the same under Q/" ^"f- and according to the true intent and meaning of the same inden- And perform ture of lease shall become due and payable And also that he covenants and ^j-^g g^|^ / j^^.gf parhi) his cxecutors &c. shall and will durino; the indemnity ^j i J ' ^ o against original continuance of the said term perform fulfil and keep all and ^'^^'^' singular the covenants provisoes and agreements contained in the said recited indenture of lease on the part of the said (lessee) his executors &:c. to be kept done and performed so far as such covenants provisoes and agreements relate to or concern or ought to be kept done and performed in respect or on account of the said messuage or tenement and premises so purchased by him the said {first party) as aforesaid and comprised in the herein- before firstly in part recited indenture of assignment and of and from the said {proportion) part of the said yearly ground rent or sum of £ and of and from all and every the said covenants provisoes and agreements in the said indenture of lease contained so far as the same respectively relate to or concern or ought to be kept and observed in respect or on account of the said messuage or tenement and premises so purchased by him the said {first party) as aforesaid and all costs charges damages and expenses which he the said {second party) his executors &c. shall sustain or be liable unto for or by reason of any breach neglect or default of or by him the said {first •party) his executors &c. of or concerning the same shall and will at all times and from time to time save defend and keep harmless and indemnified him the said (second jjarfy) his executors &;c. and his and their lands and Power of dis- tenements goods and chattels And moreover that in case the tress oudetault. g-jij {second party) his executors &c. shall at any time or times hereafter pay bear or sustain any sum or sums of money loss costs charges or expenses for or by reason of the said appor- tioned yearly rent or sum of £ not being duly paid or of the covenants and agreements in the said in part recited indenture of lease not being observed or performed by the said (first party) his executors &c. as aforesaid according to the true intent and meaning of these presents Then and in every such case and so often as the same shall happen it shall be lawful for the said {second painty) his executors &c. into and upon the messuage or tenement and premises so purchased by the said {first jiarty) and comprised or intended to be comprised in the said firstly in part recited indenture of assignment to enter and distrain for all and every such sum or sums of money costs charges and expenses which he the said {second party) his exe- cutors &c. shall so pay bear or sustain And the distress and APPORTIONMENT. 291 distresses then and there found to deal with according to due No. CXXXII. course of law in like manner in all things as in the case of dis- ^S ^^ent. tress for non-payment of rent reserved on common leases to the intent that thereby he the said {second party) his executors &c. shall and may be fully paid and satisfied all and every such sum and sums of money costs charges and expenses as afore- said And this Indenture further witnesseth That in further further pursuance of the said in part recited conditions of sale and of LikVcovTnant the hereinbefore in part recited agreements on the part of the by the second s?L\d {second party) and for and in consideration of the covenants Urstf witli like and aoreements hereinbefore contained on the part of the said power of cUs- . - n • tress. {first party) he the said {second party) doth hereby for himself his executors administrators and assigns covenant with the said {first party) his executors administrators and assigns in the manner following (that is to say) that he the said {second party) shall and will Sec. [add similar covenants &)C. by the second party as are before entered into by the first party] And each of the Further as- said parties hereto doth hereby covenant and agree with the ^"'^"'^^• other of them that they respectively shall and will at the request in writing and at the expense of the other of them do and exe- cute all such further acts and deeds as shall be deemed requisite to carry these presents into effect according to the true intent and meaning thereof, and of the said parties hereto [And if either of the parties has a right to the lease by which the rent is reserved under the condition of sale or otherwise add here a cove- nant by the party retaining it with the other to produce the lease Production of when required as follows] And the said {pai'ty retaining the '^^^^" lease) doth hereby for himself his executors administrators and assigns covenant with the said {other party) his executors admi- nistrators and assigns that he the s.^\d.( first party)\i\& executors &c. shall and will from time to time and at all times hereafter during the residue now to come of the term of years upon the reasonable request and at the expense of the said {second party) his executors &c. not being prevented by fire or other inevitable accident produce and show forth or cause to be pro- duced and shown forth unto the said {second party < his executors &c. or to his or their counsel or solicitor or at any trial or hearing in any court of law or equity or otherwise as occasion may re- quire the said in part recited indenture of lease of the day of and at or upon the like request and expense or occasion permit him or them to take or to cause to be taken copies of or extracts from the same or of any part thereof In witness &c. u2 292 APPORTIONMENT. No.CXXXIII. Of Annuity. No. CXXXIII. Apportionment of Annnity. And ill case the said {grantor or grantee as the case mag be) should die in the interval between any of the said quarterly days of payment then also a proportionate part of the said annuity for the time which at the decease of the said (grantor) shall have elapsed of the quarterly payment growing due. See ante, pp. 189, 218. APPRENTICESHIP. 1. Definition of an Apprentice, 2. Statutory Provinions as to Ap- prentices. Qualification to he an Apothecary. 3. Articles of AppreJiticeship by In- denture. By Deed. 4. Inrolment of Indentures. 5. Stump Duty on Indentures. Exemption of Parish Indentures. Premium actually paid. 0. Infmt cannot bind himself. 7. Apprenticeship how assignable. Definition of an apprentice. Statutory pro- visions as to apijrentices. Sect. 1. The word apprentice, from apprendre, to learn, signifies a learner of a trade ; therefore, the covenant by the master to teach the other a trade, and the latter was to do nothing ulterior to the employment in that trade, was held by Lord Ellenborough to be a contract apprendre ; in the true sense of the word it constituted an apprenticeship within the meaning of the legislative expression. It. v. luluihitaiits of Muinhavi, 1 E. 531 ; Chit, on App. 24. 2. By the 5 Eliz. c. 4, all persons were prohibited from following any trade, who had not served an apprenticeship of seven years ; but this and other regulations respecting the qualifications of persons entitled to take and become apprentices, &c., have since been repealed j first, by the 12 Ann. st. 2, c. 3, s. 9, as to distillers of brandy from British malt; by the 17 Geo. 3, c. 55, s. 5, as to hatters and felt- makers ; and generally by the 54 Geo. 3, c. 96, which enacts, that any person may take or become an apprentice, although not accord- ing to the provisions of the 5 Eliz. c. 4. By the municipal act, 5 & 6 Will. 4, c. 76, s. 14, which does not extend to London, all such customs and bye-laws of coi'poi'ations as had the effect of prohibiting trades and occupations to persons who had not served as apprentices were done away with. Other statutes have likewise been passed relative to apprentices to particular trades and professions. The APPRENTICESHIP. 293 42 Geo. 3, c. 73; 1 & 2 AVill. 4, c. 39; 3 & 4 Will. 4, c. 103, Apprenticeship. contain many regulations for the purpose of preserving the health and morals of the children put apprentices to the cotton and other manufactories. The 43 Eliz. c. 2 (amended by 32 Geo. 3, c. 5), and still more by 56 Geo. 3, c. 139, contains several provisions as to the binding out or assigning over parish apprentices to businesses in general; the 4 & 5 Will. 4, c. 35, repealed and re-enacted with amendments by 3 & 4 Vict. c. 85, applies to apprentices put out to chimney-sweepers ; and 17 & 18 Vict. c. 104, ss. 141 — 145, to apprentices put out to the sea service. By 7 & 8 Vict. c. 101, s. 13, persons are not compellable to receive any poor child as an apprentice. The manner in which parish apprentices are to be bound and main- tained is now placed under the control of the poor law commissioners, ■who have power to introduce new rules from time to time as they may think fit, 4 & 5 Will. 4, c. 76, s. 15; see also s. 61, Rerj. v. St.' Mary Magdalen, Bermondsey, 2 Ell. & Bl. 809. By 7 & 8 Vict, c. 101, s. 12, the poor law commissioners are to prescribe the duties of masters of poor apprentices, and masters neglecting to fulfil them are liable to a penalty. The guardians of an union or parish are to bind poor children ap])rentices instead of the overseers. The 14 & 15 Vict. c. 11, provides for the better protection of apprentices under the care and control of others as a[)prentices, and enables the guar- dians and overseers of the poor to prosecute in certain cases. By the 55 Geo. 3, c. 194, and 6 Geo. 4, c. 133, no person shall be Qualification admitted to any examination for a certificate of his qualification to tobeanapothe- cary. act or practise as an apothecary, unless he shall produce proof to the court of examiners of his having served an apprenticeship of not less than five years to an apothecary, or to a member of the Royal College of Surgeons in London, Edinburgh or Dublin, or to a sur- geon in his Majesty's army or navy. As to articles of Clerkship, see font, p. 301. 3. One cannot be bound an apprentice without deed, 1 Salk. 68. Articles of ap- By the 5 Eliz. c. 5, articles of apprenticeship are required to be P|^|.'^ture'''' ^'^ indented, in the case of apprentices to husbandry, to owners of ships, fishers on the seas, &c. ; and by the 43 Eliz. c. 2, also, in the case of apprentices put out by the parish ; by the 54 Geo. 3, c. 46, indentures made according to the [)rovisions of 5 Eliz. c. 4, which are otherwise valid, are to be so, notwithstanding the I'cpeal of that statute. Al- By deed, though the 31 Geo. 2, c. 11, s. 2, has dispensed with the necessity of having the deed indented, it is still necessary that the binding shoidd be by deed, R. v. Inhabitants of Ditrhinfjham, 4 T. R. 769. By the 8 Ann. c. 9, s. 35, indentures must bear date the day they are executed. 4. In London, and some other places, the indentures must be in- inrolmrnt of iiiileiitiir(.s. 294 APPRENTICESHIP. Apprenticeship, rolled before the chamberlain within a year, and the apprentice mus. be present at the iin-olment and acknowledge them, Bac. Abr. Mast. andSer. A.; 1 Mod. 271. Stamp duty on 5. By the 55 Geo. 3, c. 184, indentures of apprenticeship must be indentures. impressed with the following stamp duties. If the premium be under 30/., 1/. ; if 30/. and under 50/., 21. ; if 50/. and under 100/., 3/. ; if 100/. and under 200/., 6/. ; if 200/. and under 300/., 12/. ; if 300/. and under 400/., 20/. ; if 400/. and under 500/., 25/. ; if 500/. and under 600/., 30/. ; if 600/. and under 800/, 40/. ; if 800/. and under 1000/., 50/. ; if 1000/. and upwards, 60/. ; and where there is no premium, and the instrument contains no more than 1080 words, 1/. ; and if above that number of words, 1/. \bs. By the 13 & 14 Vict. c. 97, a progressive duty of \0s. is imposed for every entire quantity of 1080 words above the first 1080 words, with a proviso that no higher amount of progressive duty should be charged than was payable before the passing of the last-mentioned act. A duplicate is charge- able with a duty of 5s., and a progressive stamp of 25. Qd. for every entire quantity of 1080 v/ords after the first 1080 words. Where no sum of money or other matter or thing shall be paid, given, assigned or conveyed, or be secured to be paid, given, assigned or conveyed to or for the use or benefit of the master or mistress, with or in respect of any apprentice, clerk or servant, a duty of 2s. Qd. is imposed on the indenture or other instrument or writing containing the covenants, articles, or agreements for or relating to the service of any apprentice, clerk, or servant who shall be put or placed to or with any master or mistress, or to or with any new master or mistress, either by assignment, transfer, or turnover; or upon the death, absence, or incapacity of the former master or mistress, or otherwise to learn any pi-ofession, trade or employment whatsoever (except articles of clerkship or apprenticeship to any attorney or solicitor or other person in order to admission in any court or in any office in any court) or any writing whatsoever (except as aforesaid) whereby any such assignment, transfer or turnover, may be effectuated or ascer- tained. 16 & 17 Vict. c. 59, Sched. tit. Apprenticeship. All indentures of apprenticeship, bonds, contracts and agreements, entered into in the United Kingdom for or relating to the service in any of her Majesty's colonies or possessions abroad, of any person as an artificer, clerk, domestic servant, handicraftsman, mechanic, gar- dener, servant in husbandry or labourer, are exempted from all stamp duty. 17 & 18 Vict. c. 83, s. 21. Exemption of Indentures for placing out poor children apprentices, at the sole parish inden- charge of any parish, or at the charge of any public charity, or pursuant to the 32 Geo. 3, for the further regulation of parish apprentices are exempt from all stamp duties. This exemption has been held not to be confined to mere compulsory bindings under the 42 Eliz. c. 2, but APPRENTICESHIP. 295 extends to voluntary bindings, provided the premium is paid out of a Apprenticeship. fund raised at the public charge, M. v. St. Petrox, 4 T. R. 196; so indentures for placing out poor children at the charge of any public charity are by the same act exempt from stamp duty ; and it has been held, that where a poor person was bound apprentice at the charge of a fund bequeathed to trustees for that purpose, it was not necessary that the trustees should be parties to the indentures, R. v. Quainton, 2 M. & S. 338 ; and a private agreement without the knowledge of the trustees between the master and a third person, whereby the latter agreed to pay for the clothing and washing of the apprentice, was held not to subject the indenture to the stamp duty. But the fund must be derived from a public and not a private chaiity, to bring it within the exemption, M. v. St. Matthew (JSet/inal Green), Burr. S. C. 574 ; S. C. 1 Const. 661 ; see also R. v. Clifion, Burr. S. C. 697 j R. v. Takenham, 2 Ad. & E. 528; S. C. 4 Nev. & Man. 553. The premium actually paid must, by the 8 Ann. c. 9, s. 39; 20 Premium ac- Geo. 2, c. 45, be truly set forth in the indenture, or otherwise it is ^"'''v P^*^* void, Jachson v. Wanvickc, 7 T. R, 121 ; but if the sum paid be less than that inserted, this will not vitiate the articles, R. v. Inhabitants of Ken sham, 5 E. 309. But no indenture will, by 8 Ann. c. 9, s. 43, be admitted in evidence unless the party producing the same make oath that the sum inserted therein was all that was given or contracted for. 6. At common law, no person under the age of twenty-one can Infant cannot bind himself, for an infant can be bound by no covenant, except by himseli. the custom of London, where an infant above the age of fourteen may bind himself to a fi-eeman, and it shall be as binding as if he were of full age, 2 Roll. Abr. 305 ; 1 Mod. 271. An apprentice is considered as freed from all liability to serve after he comes of age ; but as those who engage for the infant are held to be bound by the covenants, care must be taken that the period expire at or before the apprentice attains the age of twenty-one. Ex parte Davis, 5 T. R. 715 ; Cumimj v. Hill, 3 B. & Aid. 59. The apprentice must be a party to the indenture, although put out by the parent, 2 Salk. 479. 7. An apprenticeship is not assignable without the consent of the Apprenticpship a[)prentice, Hob. 134; Pcch's Case, 1 Salk. 66. By the custom of how assignable. London, tlie executors of the master are bound, in case of his death, to place the apprentice with another master, Peck's Case, %ih. sup. In cases where a master dies shortly after an apprentice has been bound to him, a court of equity will decree that part of the pre- mium shall be refunded, 1 Vern. 460; Hirst v. Tolson, 2 Hall & T. 359, post, p, 304, n. ; and where a master becomes bankrupt it will decree, that a proportion of the premium shall be considered as a debt, and proveable under the commission, although there be no 296 Apprenticeship. APPRENTICESHIP. agreement to tluit effect, Chit. 85; Ex parte Sandbi/, 1 Atk. 149. A master is entitled to tlie whole of the time of the ap})rentice, unless it be otherwise covenanted, Thompson v. Havelock, 1 Camp. 527. See Harrison's Dig. tit. Apprentice. No. CXXXIV. Indentures. Master cove- nants to teach. And give board, &c. Apprentice covenants to serve. No. CXXXIV. Indentures of Apprenticeship. TJiis (a) Indenture made the day {b) of in the year of our Lord Between (Father) of &c. of the one part (c) (Apprentice) son of the said (F.) of the second part and (Master) of &c. of the third part Witnesseth That in consideration of the (d ) sum of £ to the said (M.) in hand (fee. paid the receipt whereof <&:c. he doth hereby admit and acknowledge he the said (M.) Doth for himself his executors and administrators covenant promise and agree with and to the said (F.) to accept the said (^.)as his apprentice during the term of years in manner as follows That he the said (M.) shall and will according to the best of his power skill and knowledge (e) teach the said (A.) in the trade or business of [or " profession of "] and all and every thing relating thereto And also shall and will during the said term find and provide the said (A.) with good and sufficient diet lodging and w^ashing fit for an apprentice (/) And the said (F.) and the said(J[.) for themselves severally and for their several executors and administrators do and each of them doth covenant promise and agree with and to the said (31.) That the said (A.) from the date hereof during the term of years shall and will truly and faithfully serve the said (7¥.)ashis apprentice and diligently attend to the said business at all times his secrets keep and his lawful commands willingly obey And shall not nor will absent himself from his master's service with- out the leave of the said (31.) nor do nor knowingly suffer any (a) When a deed indented is necessary, see ante, Pref. sect. 3. (b) Respecting the date, ib. (e) As to apprentice being a party, see ante, Pref. sect. 6. (d) As to the stamp duty, see ante, Pref. sect. 5. (e) Force of this word, see ante, Pref. sect. 1. (/) If the apprentice-hip be to a profession, as a surgeon, say, "And moreover shall and will permit and allow the said (A.) to walk or attend ou days in the week or oftener if needful the hospital of at or attend any other lectures upon medicine surgery &c." As to the medical profession, see ante, Pref. sect. 2. ArPRENTICESHlP. 297 damage to be done to the goods monies or other things whicli No. C XXX IV. shall be delivered or put into his custody or care J^wf/ shall not lode^tures of. embezzle waste or lend them to any one without his master's consent nor play at cards or other unlawful games nor haunt or frequent taverns but in all things shall and will demean and behave himself towards his master as a good and faithful ap- prentice ought (r/) And the said (-F.) doth hereby further agree Father agrees that he shall and will at all times during the said term provide the said {A.) with suitable clothes both linen and woollen and all other necessaries except board washing and lodging (b )A nd In case of it is hereby declared and agreed by and between the parties pa; t of the tee hereto That in case the said {M.) shall happen to die in the first to be repaid. or second year from the date hereof the executors and adminis- trators of the said [M.) shall pay the sum of £ out of the said sum of £ And lastly for the true performance &;c. (Penal clause, see post, p. 300.) APPRENTICESHIPS TO THE SEA SERVICE. 1. Shipping Masters to assist in Bindinj Apprentices. 2. 'Indentures of Apprenticeship hy Guardians to be witnessed by Two Justices. 3. Indentures of Apprenticeship to he exempt from Stump Duty and recorded. 4. Hides to govern Apprenticeship of Paupers. 5. Apprentices and their Indentures to be brought before Shipping Master before each Voyage in a Foreign-going Ship. 1. All sliipping masters appointed under the Merchant Shipping Act, Shipping 1854, shall, if applied to for the purpose, mvc to any board of guar- Masters to as- ' ? I 1 I 1 ' ft ... , sist in binding dians, overseers, or other persons desirous of apprenticing boys to the apprentices, sea service, and to masters and owners of ships requiring apprentices, such assistance as is in their power for facilitating the making of such apprenticeships, and may receive from persons availing themselves of such assistance such fees as may be determined in that behalf by the Eoard of Trade, with the concurrence, so far as relates to pau])cr ui)])rentices in England, of the poor law board in England, and so liir (a) As to tliis clause, see aiite, Prof. sect. 0. (h) As to the death of the master, and iiow much of the i)rcnuum must be fetunded, see ante, Pief. sect. 7. 298 APPRENTICESHIP. To Sea Service. Indentures of apprenticeship by guardians to be witnessed by two justices. Indentures of apprenticeship to be exempt from stamp duty and re- corded. Rules to govern apprenticeship of paupers. Apprentices and their in- dentures to be brought before siiipping mas- ter before each voyage in a foreign-going ship. as relates to pauper apprentices in Ireland, of the poor law commis- sioners in Ireland. 17 & 18 Vict. c. 104, s. 141. 2. In the case of every boy bound an apprentice to the sea service by any guardians or overseers of the poor, or other persons having the authority of guardians of the poor, the indentures shall be executed by the boy and the person to whom he is bound, in the presence of and shall be attested by two justices of the peace, who shall ascertain that the boy has consented to be bound, and has attained the age of twelve years, and is of sufficient health and strength, and that the master to whom the boy is to be bound is a proper person for the purpose. 17 k 18 Vict. c. 104, s. 142. 3. All indentures of apprenticeship to the sea service shall be exempt from stamp duty, and all such indentures shall be in duplicate, and every person to whom any boy is bound as an apprentice to the sea service in the United Kingdom shall, within seven days after the execution of the indentures, take and transmit the same to the regis- trar-general of seamen, or to some shipping master, and the said registrar or shipping master shall retain and record one copy, and shall indorse on the other that the same has been recorded, and shall redeliver the same to the master of the apprentice, and whenever any such indenture is assigned or cancelled, and whenever any such apprentice dies or deserts, the master of the apprentice shall, within seven days after such assignment, cancellation, death, or desertion, if the same happens within the United Kingdom, or if the same happens elsewhere, so soon afterwards as circumstances permit, notify the same, either to the said registrar of seamen or to some shipping master, to be recorded, and every person who fails to comply with the provisions of this section shall incur a penalty not exceeding 10/. 16 & 17 Vict. c. 104, s. 143. 4. Subject to the above provisions, all apprenticeships to the sea service, made by any guardians or overseers of the poor, shall, if made in Great Britain, be made in the same manner and be subject to the same laws and regulations as other apprenticeships made by the same persons, and if made in Ireland, shall be subject to the rules contained in the act 17 & 18 Vict. c. 104, s. 144. 5. Themasterof every foreign-going ship shall, before carrying any apprentice to sea, from any place in the United Kingdom, cause such apprentice to appear before the shipping master before whom the crew is engaged, and shall produce to him the indenture by which such apprentice is bound, and the assignment or assignments thereof (if any), and the name of such apprentice, with the date of the inden- ture and of the assignment or assignments thereof (if any), and the name of the port or poi-ts at which the same have been registered shall be entered on the agreement, and for any default in obeying the provisions of this section the master shall for each offence incur a penalty not exceeding ol. 17 & 18 Vict. c. 104, s. 145. APPRENTICESHIP. 299 No. CXXXV. j,„ cxxxv. Indenture of Apprenticeship to the Sea Service. ^s^^"sT- e" This Indenture made the day of one thousand eight hundred and Between aged years a native of in the county of of the first part of in the county of of the second part and (a) of in the county of of the third part Witnesseth That the said hereby voluntarily binds himself apprentice unto the said his executors administrators and assigns for the term of years from the date hereof And the said apprentice hereby covenants that during such time the said apprentice will faithfully serve his said master his executors administrators and assigns and obey his and their lawful com- mands and keep his and their secrets and will when required give to him and them true accounts of his or their goods and money which may be committed to the charge or come into the hands of the said apprentice and will in case the said apprentice enters her Majesty's service during the said term duly account for and pay or cause to be paid to his said master his executors administrators or assigns all such wages prize-money and other monies as may become payable to the said apprentice for such service and that the said apprentice w ill not during the said term do any damage to his said master his executors administrators or assigns nor will he consent to any such damage being done by others but will if possible prevent the same and give warning thereof and will not embezzle or waste the goods of his master his executors administrators or assigns nor give or lend the same to others without his or their license nor absent himself from his or their service without leave nor frequent taverns or alehouses unless upon his or their business nor play at unlawful games In consideration whereof the said master hereby covenants with the said apprentice that during the said term he the said master his executors administrators and assigns will and shall use all proper means to teach the said apprentice or cause him to be taught the business of a seaman and provide the said apprentice with sufficient meat drink lodging washing medicine and medical (a) If there is a surety, his name is to be inserted here ; but a surety is not essential. If there is not one, the part relating to him should be struck out. 300 APPRENTICESHIP. Ko. CXXXV. Indenture to Sea Service. and suigical assistance and pay to the said apprentice the sura of in manner following (that is to say) the said apprentice providing for himself all sea-bedding wearing apparel and necessaries (except such as are hereinbefore specially agreed to be provided by the said master) And it is herely agreed That if at any time during the said term the said master his executors administrators or assigns provide any necessary apparel or sea- bedding for the said apprentice he and they may deduct any sums properly expended thereon by him or them from the sums so agreed to be paid to the said apprentice as aforesaid And for the performance of the agreements herein contained each of them the said and Doth hereby bind himself his heirs executors and administrators unto the other of them his executors and administrators in the penal sum of and for the performance of the covenants on the part of the said apprentice herein contained the said (a) as surety doth hereby bind himself his heirs executors and administrators unto the said his executors and administrators in the penal sum of Provided that notwithstanding the penal stipu- lations herein contained any justice or justices of the peace may exercise such jurisdiction in respect of the said apprentice as he or they might have exercised if no such stipulations had been herein contained. In icitness whereof the said parties have hereunto set their hands and seals the day and year above written. Signed sealed and delivered in the presence of [Master]. [Appr€7itice'}. [Surety], (L. S.) (L. S.) (L. S.) Eegistered at the port of this day of 18 Signed JVote. — This indenture must be executed in duplicate, both copies must be taken to the registrar-general of seamen ; or if in the out-ports to some shipping master ; one copy will then be retained and recorded, and the other returned to the master with the necessary indorsement. (a) See note (a), ante, p. 299. APPRENTICESHIP. 301 CLERKSHIP TO AN ATTORNEY. \. Articles of Clerkship necessary. \ ^. Stamp Duty on Articles. 2. Service required under Articles. \ 1. No person is capable of bcinoj admitted and enrolled as an at- Articles of torney or solicitor unless such person shall have been bound by ^ggg^^^y]'^ °^" contract in writing to serve as clerk for and during the term of five years to a practising attorney or solicitor in England or Wales, and shall have duly served under such contract for and during the said term of five years, and also, unless such person shall, after the expira- tion of the said term of five years, have been examined and sworn in the manner directed by the act 6 & 7 Vict. c. 73, s. 3. There is a provision as to clerks to attornies of the Court of Common Pleas of the county palatine of Lancaster, or the Court of Common Pleas of the county palatine of Durham. 2. Every articled clerk shall, during the whole time and term of Service re- service to be specified in such contract, continue and be actually em- ^Jif^^^Jgg""'*^'" ployed by such attorney or solicitor in the proper business practice or employment of an attorney or solicitor, save only and except in the cases provided by the act. Id. s. 12. Persons bound for five years may serve one year with a barrister or special pleader and one year with a London agent, 6 »Sc 7 Vict. c. 73, s. 6. Any person who has taken a degree of bachelor of arts within six years after his matriculation, or the degree of bachelor of laws, within eight years after his matriculation, at the university of Oxford, Cam- bridge, Dublin, Durham, or London, may act as an attoiney or solicitor upon having served a clerkship, three years with an attorney, or part thereof not exceeding one year, with the London agent of the attorney. The period of five years is similarly shortened in favour of certain students of the Queen's colleges in L-elaiid attending lectui-es and passing examinations in the faculty of laws during two collegiate years. 14 & 15 Vict. c. 88, s. 2. An affidavit is to be made and filed Affidavit, within six months of execution of articles, and the articles to be en- rolled ; if not filed within six months the service to reckon from the day of filing, unless the Court shall otherwise direct. Tlie affidavit is to be produced on applying for admiss^ion. A book is to be kept for entering the substance of affidavits, with the names, &c. of attorney and clerk, &c., which may be searched. 6 & 7 Vict. c. 73, ss. 8— IL No attorney is to have more than two clerks at one time, or to take or retain any clerk after discontinuing business, nor whilst clerk to another. G & 7 Vict. c. 73, s. 4. Li case an allorney become bank- rupt or insolvent, or be imprisoned, any of the courts of law or 302 APPRENTICESHIP. Clerliship to Attorney. Stamp duty on articles. equity wherein such attorney or solicitor is admitted, upon the apph'- cation of the clerk, may order and direct the said contract to be discharged or assigned to such person, upon such terms, and in such manner as the said court shall think fit. 6 &; 7 Vict. c. 73, s. 5. See further,as to articles of clerkship. Affidavits, anie,pp. 45—50. 3. The stamp on articles of clerkship is 80/., 16 & 17 Vict. c. 63, s. 1, Sched., and on the counterpart 5/., with 2s. 6d. for every 1080 words above the first 1080 words. The Treasury may authorize the commissioners of inland revenue to stamp aiticles of clerkship six months after the date thereof upon payment of the duty chargeable thereon, and of the penalty. 19 & 20 Vict. c. 81, s. 3. See 7 Geo. 4, c. 44. No. CXXXVI Articles of Clerkship. Clerk cove- nants to serve No. CXXXVI. Articles of Clerkship. Articles of Agreement &c. Betw^een (3Iaster) of Sec. gentleman one of the attornies of her Majesty's Courts of Queen's Bench and Common Pleas at Westminster and a solicitor in the High Court of Chancery of the one part and {Father) of &c. and (Clerk) son of the said (F.) of the other part Witness That the said ( C.) of his own free will and by and with the consent and approbation of the said (F.) his father Dotk by these presents put place and bind himself clerk to the said (M.) to serve him from the day of the date hereof for and during and until the full end and term of five years from hence next ensuing and fully to be complete and ended And the said (F.) doth hereby for himself his executors and administrators covenant and agree with the said (M.) his executors administrators and assigns in manner following (that is to say) That the said (C.) shall and will well faithfully and diligently serve the said {M.) as his clerk in the profession of an attorney at law and solicitor in Chancery from the day of the date hereof for and during the said term of Not to destroy five years and that he the said (C) shall not at any time during the said term of five years cancel obliterate spoil destroy waste embezzle spend or make away with any of the books papers writings monies stamps or other property of the said (31.) his executors administrators or assigns or any of his clients or em- ployers which shall be deposited in his hands or entrusted to his custody or possession or to the care custody or possession of the said (C.) and that in case the said (C) shall act contrary to books or papers APPRENTICESHIP. 303 the last mentioned covenant or if he the said (31.) his executors No. cxxxvi. administrators or assigns shall sustain or suffer any loss damage ^'/''/''f."/ ° •11? Clerkship. or prejudice by the misbehaviour neglect or improper conduct of the said (C) he the said (F.) his executors or administrators Father to make shall make good and reimburse him the said {M.) the amount ,jj.,ge and value thereof And further that he the said (C.) shall and will from time to time and at all times during the said term of five years keep the secrets of the said {M.) and readily and cheerfully obey and execute his lawful and reasonable commands and shall not depart or absent himself from the service or employ of the said {M.) during the said term without his consent first obtained but shall from time to time and at all times during the said term conduct himself with all due diligence honesty sobriety and tem- perance And that he the said {F.) his executors and adminis- trators shall and will at all times during the said term at his and their proper costs and charges find and provide the said (C.) with all and all manner of necessary and becoming apparel and washing and also medicine surgery and medical advice and nursing in case of sickness And the said (C) doth hereby for himself and on his part consent and agree to and with the said {M.) his executors administrators and assigns that he the said (C,) shall and will truly and honestly and diligently serve the said {M.) at all times for and during the said term as a faithful clerk ouoht to do in all thinos whatsoever in the manner above specified In consideration w hereof and of the sum of <£ Master cove- sterling by the said {F.) to the said {M.) in hand paid at or before "fe"£'° the sealing and delivery of these presents the receipt whereof the said {M.) doth hereby acknowledge and from the same sum and every part thereof doth hereby acquit release and discharge the said {F.) his executors and administrators and every of them he the said {M.) for himself his heirs executors and administrators doth hereby covenant promise and agree with and to the said {F.) That he the said {M.) shall and will accept and take the To provide him said (C) as his clerk during the said term and find and provide ^^^^^^^l^A in- him with hoard and lod). any other practising attorney oi* solicitor, or attornies or solicitors, during the residue of the said term and service under such second or other contract in manner required by the act will be effectual, pro- vided that an affidavit be duly made and filed of the execution of such second or other contract or contracts within the time, and in the man- ner, and subject to the like regulations as are made with respect to the original contract and afhdavit of the execution thereof. 6 & 7 Vict. c. 73, s. 13. (See Form of Affidavit, ante, No. XXI. p. 46.) This Indenture made &:c. Between {old master) of Sec. of the first part (father) of &c. and (clerk) of &c. son of the said {F.) of the second part and (neiv master) of &c. an attorney of her Majesty's courts of &:c. of the third part Whereas [recite articles of clerkship] Now &zc. in consideration of the said covenants on the part and behalf of the (iY. 31.) herein- after mentioned he the said (O. 31.) at the request and by and with the consent and approbation of tlie said (F.) and (C) testified by their being parties to and executing these presents doth hereby assign transfer and set over unto the said (iV. 31.) Assignment, his executors administrators and assigns as well the said recited articles and all benefit whatsoever to be had or made thereof as also all the right interest property profit advantage claim and demand whatsoever and howsoever to arise be had or made to him the said ( O. 31.) from henceforth of the service of the said ( C.) during the now residue of the said term of years by force or virtue of the said recited articles or otherwise howsoever Covenant by {F.) with (iV. M.) (see ante p. 302) Covenant by (C.) with {N. 31.) ( ante p. 302) In consideration whereof he the said (iV. 31.) for himself &:c. doth hereby covenant &c. with the said (F.) in manner &c. That he the said (iV. 31.) shall and will accept and take the said (C) as his clerk during the residue of the said term of five years That he the said {N. 31) shall and will at all times during the said residue of &c. in the best manner he can instruct the said (C.) as his cleik in the business practised {ante p. 303) And also {if so agreed) that he the said Covenant from {N. 31.) his &c. shall and will from the day of the date hereof "'^ '"^''"• at his and their own costs and charges find allow and jjrovide the said (C.) in competent and sufficient meat &c. and thereof and therefrom save harmless and indemnified the said {(). 31.) his &c. And lastly each of them the said {O. M.) and {N. 31.) X 2 308 APPRENTICESHIP. No. CXXXVIII. Assignment (Clerkship). doth hereby severally covenant with the said (F.) that they the said (O. M.) and (iV. 31.) at the request cost and charges of the said (F.) or (C) at any time after the expiration of the said term of years shall and will severally certify the respective times of service of him the said (C) with them the said (O. 31.) and (JV. 31.) according to the general rules in such case made and provided and also to procure admittance of (C) {ante p. 303) In witness Sec. ARBITRATION. 1. Submission, how made. Bi/ Parol. By Deed. By Bond. 2. Parties to the Submission. 3. Force of an Agreement to refer to Arbitration. 4. Wliat matters may be referred. 5. Extent of Submission. 6. Power of examining on Oath given to Arbitrators. 7. Agreement in Writing may be made Pule of Court, unless contrary intention appear. 8. Time of mailing the Award. 9. Submission void or revoked. 10. Ptiblicntion of an Award. 1 1 . Costs of Peference. 12. Arbitrators, who may be. Umpire. Appointment of Arbitrators or Umpire. 13. Proceedings of Arbitrators. 14. Pequi sites of an Aioard. 15. Award by Parol or by Deed. 16. Delivery of an Award. 17. Performance of an Award. 18. Stamp Duty. Submission, how made. By parol. By deed. By bond. Sect. 1. An agreement to refer any matter in dispute, commonly called a submission, may either be purely by the act of the parties themselves, or it may be by the interposition of a court of law. In the former case the submission may be by parol, but in the latter case it appears that a submission, unless in writing, cannot, by the 9 & 10 Will. 3, c. 15, be made a rule of court, Sammwuys v. Elderley, 2 Mod. 73 ; 7 Ves. 419 ; Ansel v. Eca)i.^, 7 T. R. 1. When the sub- mission is in writing, it usually is with mutual covenants, under a penalty ; sometimes by indenture or deed poll, or by bond, each party executing an obligation to the other, Sammways v. Flderley, 2 Mod. 73. When the accession of all parties to the reference is the consideration to each to execute the submission, it is not valid as to some who have executed it until all have done so, even although it purports to refer all matters in difference between them or any two of them_, Antram v. Chase, 15 East, 209. ARBITRATION. 309 2. Every one who is capable of making a disposition of his pro- Arbitration. pertv, or a release of his rifrbt, mav be a party to a reference, but not „ . , ~ r ' ' f^'.r. ' Parties to the such as are under any natural or civil disability, as femes coverts, submission, infants, &c. An awaid made under a reference respecting freehold estates, where some of the parties to be bound by it were married women interested, is invalid, Strnchan v. Duuyall, 7 ]Moo. P. C. C. 365. A married woman may, however, be made a party to a sub- mission in any matter affecting her separate property, Butcman v. Counters of Ross, Dow. 2:^5. Those only who are parties to the submission shall be bound by it. But a man is bound by an award to which he submits for another, as a husband for his wife, Sty. 351 ; a guardian for an infant, Latch. '201 ; or one of many partners for the rest, 2 Mod. 228. See Hatton v. Roi/h, 3 H. & N. 500. An attorney may submit to arbitration for his client, CnyhiR v. Attomies. Fitzgerald, 1 Wils. 28, 58; but a submission by bond binds himself, 12 Mod. 129. The attorney on the record has authority to refer the subject of the action to arbitration, Paull v. Paull, 2 Cr. & M. 235; Filiner v. Dolhec, 3 Taunt. 486 ; Faviell v. Eastern Counties Mailivay Company^ 2 Exch. 344. If his client withdraws that authority from him, and the attorney, nevertheless, refer the cause, the validity of the reference cannot be disputed, upon showing cause against a rule for enforcing the award, and it seems that the client's only remedy is against his attorney, Sntilh v. Troitji, 6 D. & L. 679; 7 C. B. 757. It has been said that a solicitor in a suit in Chancery has no such general authority, Colwtil v. Child, 1 Ch. Rep. 154, 86, but this has been doubted, Russ. on Ai'bitration, p. 30, 2nd edit. ; Furnical V. Hofjle, 4 Russell, 142. The attorney of a next friend in an action cannot bind the infant for whom the next friend acts, IVrv/htson v. Bywater, 3 M. & W. 205; Biddell v. Dowse, 6 B. & C. 255. If an executor or administrator thinks fit to refer generally all Executors and matters in dispute to arbitration, without protesting against the ^^ininistrators. reference being taken as an admission of assets, it will amount to such an admission, Rohson v. , 2 Rose, 50 ; Barry v. Rush, 1 T. R. 691 ; Riddell v. Sutton, 5 Bing. 200. The reference should leave the question of assets open, and the arbitrator should only be authorized to make an award so far as there are assets to perform it. See Wms. on Exors. Pt. IV. Bk. 2, Ch. II. s. 1 ; Russ, on Arbi- tration, pp. 33—35, 2nd cd. Trustees, in submitting matters to arbitration, should in express terms exclude the construction of any personal liability, lb. 36. The assignees of a bankru|)t, with the leave of the Court of ]3ank- Assijrnees of ruptcy, may submit to arbitration any difference or dispute between "^"'^''"P'- the assignees and any other person, for, or on account, or by reason of anything relating to the estate and effects of the bankrupt, 12 &. 13 Vict. c. 106, s. 153. A reference bv assignees genenillv of all insolvent debtors, 310 ARBITRATION. Arbitration, matters in dispute, without protesting against the reference being taken as an admission of assets, will amount to such an admission, in the same manner as it w^ould in the case of an executor or administi-ator, Ruhson V. , 2 Rose, 50. The reference may be made a rule of a superior court of law, whether the agreement of reference contain a clause to that effect or not, 12 & 13 Vict. c. lOS, s. 154. Assignees of The assignees of insolvent debtors may submit questions to arbitra- tion with the consent of the major part, in value, of the creditors, and with the approbation of the court or of a commissioner, 1 & 2 Vict. c. 110, s. 51 ; 7 & 8 Vict. c. 96, s. 13; 5 & 6 Vict. c. 116 ; Dod v. Herring, 3 Sim. 143; 1 Russ. & M. 153. There are many other statutes which authorize the reference of dis- putes to arbitration, as the Lands Clauses Consolidation Act, 1845, the Railways Clauses Consolidation Act, 1845. (See Russ. on Arbitration, pp. 39-44, 95-100, 2nd ed.) Force of an 3. At common law, where a cause was depending, the submission S'l^Trbitra- ni'g'^t be made a rule of court before the trial. The 9 & 10 Will. 3 tion. extends this privilege to parties where no action has been bi'ought. As to the effect of an agreement or covenant to refer to arbitrators, it ■was formerly held, that such a reference was an implied stay of pro- ceedings in a court of law, 1 Mod. 24 ; but it was afterwards deter- mined by a rule of court, that no reference of a cause depending in the King's Bench should stay proceedings, unless it was expressed in the rule of reference to be agreed, that proceedings in that court should be stayed, 2 Ld Raym. 789; so likewise if no step has been taken towards a refei-ence, a mere agreement to refer will be no bar to an action. Kill v. HollisUr, 1 Wils. 129 ; it has been decided that the pendency of an arbitration cannot be pleaded in bar to an action of debt for the same demand, Harris v. Rcynohh, 7 Q. B. 71 ; and it has been frequently held, that such an agreement will not oust the courts of law or equity of their jurisdiction, Thomipson v. Char-noch, 8 T. R. 139; Street v. Right/, 6 Ves. 818; and an action is not maintainable on a covenant to refer disputes to arbitration, Taitersull V. Groote, 2 B. & P. 131 ; and even if it be expressly stipulated in the agreement, that there shall be no action or suit at law or in equity, it seems that a court of equity will not, except in particular cases, enfui-ce specific performance of such an agreement, Wateray, Taylor, 15 Ves. 10; Gourlay v. D. of Somerset, \Q Ves. 430. If the agree- ment contain a stipulation that no action shall be brought, the court will, on application, stay the proceedings in any action contrary to the agreement, Dicas v. Jay, 6 Bing. 519; Moscati v. Lawson, H. & W. 572. See Sturgis v. Curzo7i, 21 Law J., Exch. 38. If action com- Whenever the parties to any deed or instrument in writing, to be menced by one hereafter made or executed, or any of them, shall agree that any then have agreed to existing or future differences between them, or any of them, shall be ARBITRATION. 311 referred to arbitration, and any one or more of the parties so a2;reein(^, Arbitration. or anv person or persons clainiinfj throuirh or under him or them, ,^, •, T * ' ' n c- » arbitration, shall, nevertheless, commence any action at law or suit in equity court or judge against the other party or parties, or anv of them, or against any "'='>' stay pro- j . r J . J t^ J ceedings. person or persons claiming through or under him or them in respect of the matter so agreed to be refei-red, or any of them, it shall be lawful for the court in which such action or suit is brought, or a judge thereof, on application by the defendant or defendants, or any of them, after appearance and before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration, accordino^ to such atrreement as aforesaid, and that the defendant was, at the time of the brin":in/er, 2 Chit. 40. Know all Men That I A. B. of &c. am held and firmly bound to C. D. of &c. in the sum of £ of lawful money of Great Britain to be paid to the said C. D. or to his certain attorney executors administrators or assigns for which payment well and truly to be made I bind myself my heirs executors and administrators firmly by these presents Sealed with my seal Dated the day of in the year of our Lord Whereas differences have arisen and are depending between the above bounden A. B. and the above named C. D concerning the occupation management and cultivation by the said C. D. of a certain farm situate at in the county of the property of the said A. B. lately held by the said C. D. as tenant to the said A. B. and also concerning the payment of the several sums of money paid laid out and expended by the said A. B. for ploughing harrowing and manuring &c. previous to the said C. h. entering upon the same as tenant and likewise concern- ing the rent payable in respect of the said farm from the said CD. and all which differences and demands concerning the same the said parties have agreed to refer to the award judg- ment and determination of {arhitrators) arbitrators indifferently chosen by and between the said parties to award arbitrate and determine concerning the same and in case the said arbitrators cannot determine the same within the time hereunder limited then to the umpirage of a third person to be by the said {A,) chosen as umpire Now therefore the condition of the above written bond or obligation is such that if the above bounden A. B. his heirs executors and administrators and every of them ARBITRATION. 323 do and shall on his and their part and behalf in all things well No. CXLl. and truly stand to observe perform fidfil and keep the award ^°"'^- arbitration final end and determination of (^4.) arbitrators in- ditTerentlv chosen to arbitrate award adjudoe and determine upon and concerning the occupancy and management of the said farm and the sum laid out by the said A. B. in the cultivation of the same and the rent payable in respect of the same and also touchino- and concernino- all and all manner of actions causes of action suits [bills bonds specialties covenants contracts promises accounts reckonings judgments executions extents quarrels con- troversies trespasses] damages and demands whatsoever both at law and in equity had moved brought commenced sued prose- cuted done suffered or committed by or between the said ])arties so as the award of the said {A.) or any two of them be made in writing under their hands and seals ready to be delivered to the said parties in difference on or before the day of And if the said (^.) shall not make such their award of and concerning the premises within the time limited as aforesaid Then if the said A. B. his heirs executors and administrators and every of them on his and their part and behalf do and shall well and truly stand to abide by observe perform and keep the award order arbitrament umpirage final end and deter- mination of the said {umyire) being a person indifferently named and chosen by the said parties as umpire in and concerning the premises so as the said {U.) do make and publish his award and umpirage in writing under his hand and seal ready to be delivered to the said parties in difference on or before the day of (a) Then this obligation to be void or else to re- main in full force and virtue. • No. CXLII. No. CXLII. Order of Submission h/ Judge. Submhshn b,/ '' ./ v/ Judge s Order. A. B. V. C. D. Upon hearing the attorneys on both sides and by their consent I do order that this cause^ [" and all other (a) Here may be added, if necessary, ^^ And it is further agreed by and between the said A. B. and C. I), that, &c. (witnesses to be examined on oath, S(c., ante, p. 319) And also tliiit the costs &c. siiall be in the discre- tion of the referees &c. And further (submission to be made a rule of court, SfC.) Aiul it is further aijreed &c. (add any other provisions ivhich viaij be necessari/)." Sec ante, pp. 319 — 321. y2 Judge's Order. 324 ARBITRATION. No. CXLTI. matters in difference between the parties"] be referred to the Submission by award order arbitrament final end and determination of E. F. of &:c. barrister at law so as he shall make and publish his award in writing of and concerning the matters referred ready to be delivered to the said parties in difference or such of them as shall require the same {or to their respective personal represen- tatives if either of the said parties shall die before the making of the said award] on or before the day of now next ensuing or on or before any other day to which the said arbitrator shall by any writing to be endorsed hereon from time to time enlarge the time for making the said award And by the like consent I further order that the said parties shall in all things abide by perform fulfil and keep such award so to be made as aforesaid and that the costs of the said cause and the costs of the reference and award shall be in the discretion of the said arbitrator And by the like consent I further order that the said arbitrator shall be at liberty (if he shall think fit) to examine the said parties to this suit and their respective witnesses upon oath or affirmation and that the said parties do and shall produce before the said arbitrator all books deeds papers and writings in their or either of their custody or power relating to the matters in difference And I further order by and with such consent as aforesaid that neither the plaintiff nor the defendant shall bring or prosecute any action or suit at law or in equity against the said arbitrator or bring any writ of error or prefer any bill in equity against each other of and concerning the matters so as aforesaid referred and that if either party shall by affected delay or otherwise wilfully prevent the said arbitrator from making an award he shall pay such costs to the other as the Court of Queen's Bench shall think reasonable and just And by the like consent I further order that in the event of either of the said parties disputing the validity of the said award so to be made and published as aforesaid or moving the court to set the same aside this court shall have power to remit the matters hereby referred or any or either of them to the recon- sideration of the said arbitrator And by the like consent I further order that this order shall and may be made a rule of her Majesty's Court of Queen's Bench if the same court shall so please Dated the day of 18 . ARBITRATION'. 325 No. CXLIII. No. CXLIII. Rule of Reference at Nisi Prius when a Juror is u'ithclrawn. Reference at ^^ isi ifitis London to icit At the sitting of Nisi Prius held at Guikl- — *- hall in and for the city of London on &:c. and in the year of the reion of our soverei2:n &c. before the Kight Honorable Chief Justice of our Lady the Queen assigned to hold the Pleas before himself. B. V. S. — It is ordered by the court by and with the consent of the plaintiff and defendant their counsel and attornies that the last juryman sworn and impanelled in the cause be with- drawn out of the panel, and that all matters in difference between the said parties be referred to the award order arbitrament final end and determination of F. C. of the Inner Temple Esquire so as he shall make and publish his award in writing of and con- cerning the premises in question on or before the day of Hilary Term now next ensuing And that the said parties shall and do perform fulfil and keep such award so to be made by him the said arbitrator as aforesaid And it is also ordered by and with such consent as aforesaid that the costs of the said cause to be taxed shall abide the event and determination of the said award and that the costs of the said reference shall be in the discretion of the said arbitrator who shall direct and award by whom and to whom and in what manner the same shall be paid And it is likewise ordered by and with such consent as aforesaid that the plaintiff and defendant respectively shall to- gether with their respective witnesses be examined upon oath and that the said parties shall produce before the said arbitrator all books papers and writings touching and relating to the matters in difference between the said parties as the said arbi- trator shall require And it is likewise ordered by and with such consent as aforesaid that neither the plaintiff nor the defendant shall prosecute or bring any action or suit in any court of law or equity against each other of and concerning the premises in question so as aforesaid referred And it is further ordered by and with such consent as aforesaid that if either party shall by affected delay or otherwise wilfully prevent the said arbitrator from making an award he shall pay such costs to the other as the Court of Queen's Bench shall think reasonable And lastly it is ordered by the like consent as aforesaid that either of 326 No. CXLIII. Rule of Reference at Nisi Prius, ARBITRATION. the said parties sliall be at liberty to move the said Court of Queen's Bench that this order may be made a rule of that court. No. CXLIV. Submission a Rule of Court. No. CXLIV. Hide for making a Submission hy Bond a Rule of Court. A. B. V. C. D. In the Common Pleas Term &c. Upon reading the affidavit of G. H. and another and the bond or obligation with the condition thereof thereunder written bearing date &:c. duly executed by C. D. of T. Esquire to A. B. of P. Esquire the tenor and effect of which said bond and obli- gation is in the words and figures following (that is to say) Know all men &:c. \_set out the bond and condition verbatim^ It is ordered that the said bond and the condition thereof and the submission between the parties in the said condition men- tioned be and the same is hereby entered and made a rule of this court pursuant to the statute in such case made and provided. No. CXLV. Order of Reference. No. CXLV. Order to refer all Matters in Difference in the Cause. Rolls. •D , ( S. F. and others plaintiffs Between < ^ xt , ^ , ( J . H. defendant On motion of plaintiff's counsel alleging plaintiff's bill and defendant's answer and cause being at issue witnesses had been examined on the part of the plaintiff and publication had passed in the cause and plaintiff and defendant had since agreed to refer all matters in dispute between them in the cause to the award of and therefore praying that the same may be referred to his award accordingly on which and on hearing defendant's counsel who consented thereto It is ordered That all matters in difference between plaintiff and defendant in the cause be referred to the award of &c. so as the award be made ARBITRATION. 327 in writing kc. And in case the said arbitrator shall not he pre- pared to make his award at the time aforesaid the parties from time to time to apply for and consent to such enlargement of the time as the said arbitrator shall certify and the court deem reasonable And also that the costs of the suit and reference and the award lie in the discretion of the said arbitrator and that the parties and all witnesses to be by them produced if required by the said arbitrator or either party be examined upon oath to be sworn before one of the London commissioners to administer oaths in Chancery and that plaintiff be at liberty to read before the arbitrator the depositions in the cause and defendant be at liberty to examine before the arbitrator the witnesses to such depositions and that all deeds books &c. be produced to the said arbitrator and that neither party prosecute any action or suit against the arbitrator or each other concern- ing the premises and if either party shall by affected delay &c. [see Riile^ and that seven days' notice of any appointment to proceed on such reference to be given to each party and their solicitor be deemed good notice and that if either party being duly summoned neglect or refuse to attend arbitrator he be at liberty to proceed without such attendance and make his award ex parte And either party be at hberty to apply to the court to have said award made an order of the court. (See another Form, Russ. on Arbitration, pp. 736, 737, 2nd ed.) No. CXLV. Order of Jieference. No. CXLVI. Order that an Agreement be made an Order of the Court of Chancery. Whereas by Articles of Agreement bearing date &c. it is re- cited and agreed as follows [setting forth the instrument ver- batim'] Now upon motion of defendant's counsel and upon producing said agreement praying that the same may be made an order of court It is ordered that said agreement be made an order of court to be observed and performed by all parties thereto accordinji to the tenor and true meaning tliereof Mr. thereto. of counsel for the plaintiff consenting No. CXLVI. Order of Chancery, 328 ARBITRATION. No. CXLVII. Order of Chduccrii. No. CXLVII. Order to make an Award an Order of the Court of Chancery, Upon motion &c. praying the writing of award hereafter mentioned bearing date the day of in the year of our Lord 18 under the respective hands and seals of A. B. and C. D. arbitrators &c. and by them sealed and delivered being first duly stamped in the presence of E. F. may be made an order of this court and the said writing of award being now produced the same appears to be in the words and to the tenor following (that is to say) To all to whom &c. \_set out the award verbatim'] whereupon and upon hearing &c. and an affidavit made by the said &c. his lordship doth order &c. No. CXLVIII. Appointment of Arbitrators. No. CXLVIII. Acceptance by the Arbitrator's of the Appointment. We the undersigned A, B. and C. D, the referees within named and appointed do hereby accept of the appointment as arbitrators for the purposes therein expressed And for the pro- ceeding in the investigation of the matters in dispute between the parties within mentioned we appoint and fix to meet at the house of in kc. by eleven o'clock in the forenoon Witness our hands this day of 18 Witness A. B. C. D. No.CXLIX. Appointment of Umpire. Stamp. No. CXLIX. Appointment of a Third Arbitrator, or Umpire. Obs. The appointment of an umpire made in writing by the arbi- trators requires no stamp, Routledfje v. Thornton, 4 Taunt. 704. We A. B. and C. D. the arbitrators within named by this me- morandum in writing under our hands made before the entering upon the consideration of the matters referred do hereby nomi- ARBITRATION. 329 nate and appoint E* F. of kc. (a) to be the third arbitrator to No. CXLIX. act with us in the consideration and determination of the same Appointment of 1 n 1 1 I- umpire. according to the provisions of the within written rule [bond obh- — gation or indenture] As icitness &c. No. CL. Another. We the undersigned A. B. and C. D. arbitrators within named havino- considered of the matter in difference between the said parties and having heard what each of them had to offer and allege in his behalf but not havino- aoreed in relation thereto so as to enable us to make an award between the said parties do hereby in pursuance of the power and direction given to us for that purpose by the within written instrument nominate and appoint E, F. of &c, to be umpire between the said parties in determining the matters in dispute as aforesaid provided he will accept such office As witness &;c. Witness A. B. C. D. No. CL. No. CLI. No.CLI. Nomination of an Umpire by Arhitrators appointed. ^y ^'■^'''■"'o"* To all to whom Sec. Whereas by an order of the Lord High Chancellor bearing date the day of in a cause then depending in the High Court of Chancery where F. G. I. W. and K. L. were complainants and I. B. G. W. and R. N. were defendants it was then ordered by the Lord High Chancellor in Court as between the plaintiff F. G. and the defendants I. B. and G. W. that all matters in difference between the said parties in this cause should be referred to the award and determination of us [arbitrators) of &c. and that we should make our award therein on or before the first day of Trinity Term then next and in case we should not agree in opinion that we should name an umpire (a) If the consent of the third person has not been obtained, add, "on condition tliut he do within days from the date hereof by sonic writing under his hand consent to act therein accordingly." 330 No. CLI. By Arbitrators. ARBITRATION. who should make an umpirage on or before the day of Term then next And whereas we the said (arbitrators) have taken the matters so referred to us into our consideration but cannot agree in opinion concerning the same JVow know i/e That in pursuance of the power and direction aforesaid in respect to the naming of an umpire in the said matters we the said {arbi- trators) do hereby nominate and appoint &c. As vdtness (fee. No. CLI I. Time for making the Award, No. CLII. Enlargement of the Time for snaking an Award by the Parties in Disjmte. Know all &c. That we the within named A. B. and CD. for ourselves respectively and for our respective heirs executors and administrators have given and granted and by these presents do give and grant unto the within named (arbitrators) until the day of now next ensuing for making their award of and concerning the several matters and things to them re- ferred as within mentioned so that they may make their award in writing &c. on or before the day of As witness &c. No.CL.ir. N0.CLIII. Time for making Enlargement of the Time for making an Award by Arbitrators. the Award. We the undersigned (arbitrators) by virtue of the powers given to us for that purpose do hereby extend and enlarge the time for making our award until the day of now next ensuing on or before which said day our award in writing of or concerning the matters in difference within mentioned shall be made and published As witness &c. ARBITRATION. AWARD. 331 Requisites of the Award. j 2. Amount of Stamp Duty. First, must be consistent with the Submission. Second, must be certain. Third, must be mutual. Fourth, must be final. Deed Stump. Ad valorem Stamp. 3. What an Award within the Stamp Act. 4. Effect of an Improper Stamp. Fifth, must be of a Thing possible \ 5. Affidavit to support, S^c, an and lawful. I Aicard. Sect. 1. The general requisites of an award are, First, That the Requisites of award must be consistent with the submission; Secondly, That it must be certain ; Thirdly, That it must be mutually satisl'actory; Fourthly, That it must be final ; Fifthly, That it must be of a thing possible and lawful. First, lite award must he consistent with the submission. If it Must be con- be made of any other thing than what is contained in the submission, J^jJ^^ggJ^^jJ' ^^^ it is void ; as where the submission is of all differences at the time, an award as to differences subsequent to the submission is bad, Roll. Arbit. (C.) 8 S. O. ; Darnardiston v. Fowler, 10 Mod. 204; or an award that a lease should be granted from a certain time, which by the submission ought to have been awarded from a time prior, Bo7iner V. Liddell, 1 B. & B. 80 ; so under a submission of all matters in difference between A. and B., an award on matters in difference be- tween A., B., C. and D. is bad, Fisher v. Pimhh/, 11 East, 188 ; so an award of a sum of money to one of the parties, and another sum to a stranger, is good for the party himself, but void for the stranger, 2 Saund. 293. Secondly. The award must he certain. Therefore where the award Must be cer- is to give security for the payment of a sum of money, it is bad, be- ^^^^' cause uncertain what security, whether by bond or otherwise. Thine V. Ri(jhy, Cro. Jac. 314; or an award of a bond for quiet enjoyment, without appointing a certain sum, is void, Salmon's case, 5 Co. 77 ; reseiit Au-ard. practice, be stamped afterwards without penalty, if tak(Mi to the office for that purpose, within six or eight weeks after it has been executed. It may be stamped at any time on paying the penahy. When it is sought to draw up a rule for an attachment for non-per- formance of an award, it is competent to the officer of the court to object to the absence of a stamp on the award, and on that account refuse to draw up the rule, Ilill v. Slucomhe, 9 Dowl. 3-39 ; Russ. on Arbitration, pp. 249, 250, 2nd ed. 5. An affidavit to support or set aside an award formerly required Affidavit to a stamp, Templtman and Reed, 9 Dowl. 962. The 4 & 5 Vict. c. 34, ^^^^^l'' ^''- ^" s. 1, provides, that no stamp shall be necessary on any "affidavits whatsoever, whether to be read, filed or used in the courts of law or equity, or before judges, commissioners, or officers, in any action or suit, or otherwise howsoever." Wo. CLIV. No. CLIV. Award pursuant to a Clause in Articles of Agreement for Award under making Repairs. «'* Agreement. To all to wJiom these Presents shall come We the {arbitrators) send greeting Whereas by certain articles of agreement bearing Recital of an date &c. and made between A. B. of &c. gentleman of the one asrcemcnt by o _ a builder to part and C. D. of &c. builder of the other part he the said C. D. make repairs. in consideration of the sum of £ to be paid to him as hereinafter is mentioned did covenant with the said A. B. that he the said C. D. at his own proper expense would on or before the day of in a complete and work- manlike manner and with good and substantial materials of all sorts make the several alterations reparations and improve- ments to a messuage situate &c. and in such manner as therein is more particularly mentioned and set forth in consideration whereof the said A. B. did covenant with the said CD. that he should and would pay unto the said C. D. the sum of £ in manner following (that is to say) the sum of £ part thereof on the day of then next ensuing and the sum of £ residue thereof within fourteen days next after the said messuage should be completely repaired and im- proved in manner as therein before mentioned And it was To rciVr dls- thereby mutually agreed that if any dispute should arise between Ir^J-^n" "' '" the said parties relating to the performance of the said articles that then the same should be left to the decision of two indiU'crent 334 ARBITRATION. No. CLIV. Award under .an Agreement. Performance of tlie contract by the builder. Disputes between the parties. Award. Parties to exe- cute mutual re- leases. persons as arbitrators the one to be named by the said A. B. and the other by the said C. D. or to an umpire to be chosen by the said (arbitrators) And whereas the said C. D. hath at his charo-e made such aherations reparations and improvements to the said messuage pursuant to his covenant contained in the said articles and hath received of the said A. B. the sum of £ being the first payment mentioned in the said articles And ichereas some disputes have since arisen touching the re- parations made as aforesaid and the same have been referred to us the said (arbitrators) Now know ye That we the said (arbi- trators) having fully viewed and inspected the several alterations reparations and improvements done in and to the said messuage by the said C. D. do hereby award that the sum of £ shall be deducted from the said sum of £ so remaining to be paid to the said C. D. as aforesaid And we the said (arbitrators) do hereby declare award and determine that there is now justly due and ought to be paid to the said CD. exclusive of the said sum of £ so paid to him and of the said sum of £ hereby agreed by us the said (arbitrators) to be deducted as aforesaid the full sum of £ of lawful &c. which said sum of £ we do hereby order and award shall be paid by the said A. B. to the said C. D. on the day of next at the house known &c. and at the hour of in the forenoon of the same day And we do hereby further award that the sum of £ being the expense and charges incident to the arbitra- tion shall be paid by the said A. B. and C. D. in equal moieties And lastly upon payment of the said sum of £ we do hereby award and direct that the said parties shall duly execute and deliver to each other mutual releases in writing of all and every matter heretofore in difference between them and so referred to us as aforesaid if and when either party shall require the same and that the expenses of such release shall be paid by the party requiring the same In witness &cc. Received the day of 18 of the sum of £ being the amount by the annexed award directed to be paid to me and which I hereby acknowledge to have received in addition to £ heretofore received on account of my bill delivered to the said A. B. in full discharge and satisfaction of all claims and demands whatsoever which I have or ever had arrainst the said A, B. CD. ARBITRATION. 335 No. CLV. No. CLV. Award under a Submission by Deed. Award under a Submission by To all to ichom these Presents shall come {Arbitrator) of &c. Deed. sendeth greeting Whereas by a certain deed bearing date &c. and made between {debtor) of (S:c. of the first part and {trustees) trustees on behalf of themselves and the other creditors of the said {debtor) of the second part and the several persons whose names are thereunto subscribed and seals affixed being creditors of the said {debtor) of the third part and A. B. of &;c. of the fo\u'th part after reciting among other things That the said A. B. claimed that the said partnership concern of N. O. and O. P. was indebted to him in the sum of £ or some other sum or sums of money secured to him by the bond of the said N. O. and O. P. some or one of them or by some other security or securities but it was contended on the part of the said ( T.) and other the creditors of the said {D.) that he the said A. B. was not entitled to recover any part of the said debt or sum of the said partnership concern until all the creditors of the said con- cern were paid off and satisfied their full and whole debts of twenty shillings in the pound inasmuch as it appeared to them that the said A. B. at the time such security or securities were so given as aforesaid was a partner in the said concern of N. O. and O. P. and still remained a partner therein so far as respected the creditors of the said concern It was covenanted declared and agreed by and between all and every the said parties thereto that in order to settle such differences and disputes and particularly the said A. B. for himself his executors and administrators did covenant and agree to and with the said {2\) as trustees as aforesaid that the said matter in difference between them should be left to the award &cc. of &c. who should award and determine whether the said A. B. was not a partner in the said concern of N. O. and O. P. at the time &c. and whether he did or did not still remain &c. And in case it should be awarded that the said A. B. is entitled so to recover on such security or securities then he should be entitled to receive the benefit and provisions of the deed now in recital equally with t)ie other creditors of the said {JJ.) but in case it should be awarded that he was a partner in the said concern of N. O. and O. P. at the time of taking such security &c. Then he the said A. B. his heirs executors and administrators should and would whenever thereunto required 336 ARBITRATION. No. CLV. by the trustees before named grant convey assign and assure by Aicaid under a g^^j^ conveyances and assignments or other assurances as they ^"^'dIIT ^ should require unto them the said (T.) their heirs executors administrators and assigns all his interest in the partnership estate stock and effects and in all other the hereditaments and premises hereby covenanted to be assigned and conveyed to be held by them upon the trusts hereinbefore declared to and for the benefit of all other the creditors of the said (-D.) And more- over that all and every the parties hereto should and would stand to &c. the award &c. so as the same &:c. Now know ye &c. I the said (A.) having &c. do award &c. that the said A. B. was not a partner in the said concern of N. O- and O. P. at the time the said security or securities or any of them were given to him by them as aforesaid and that he the said A. B. is entitled in law to recover on the said security or securities before all the other creditors of the said concern shall have been paid their full and whole debts of (fee. in the pound In witness &c. No. CLVI. No. CLVI. Award under Award of Two Arbitrators under a Submission by Cross Bonds. Cross Bonds. , ,, itt / < 7 -j ^ \ To all to whom these Presents shall come We {one Arbitrator) Recital of arbi- of &c. and (other Arbitrator) of &c. send greeting Whereas by tration bonds. ^^^^ several bonds or obligations in writing under the respective hands and seals of A. B. of • • 1 • Cross Bonds. order and direct That each of the said jiarties shall pay then* own costs charges and exjienses of the said bonds of arbitration and their witnesses and all matters whatsoever attending and inci- dental to the said reference and that the costs and charges at- tending this my award shall be paid equally between them And lastly I do award and direct that general releases be made &c. [see first precedent, ante, p. 334] In witness kc. No. CLVIII. No. CLVIII. Award of Differences between two Copartners wndera Snhinission Award under a 7 r J ' /^ 7 Judge's Order. by a Judges Order . " To all to whom these Presents shall come I {Arbitrator) of &:c. send preeting Whereas at a sitting of Nisi Prius after Recital of term last holden at the Guildhall in and for the city of London and county of the same (a) on Wednesday the day of and by adjournment on the day of the same in the year of our Lord 18 before the Right Honorable Lord Chief Justice of the Common Pleas It was ordered by the said court in an action then and there depending between A. B. plaintiff and C. D. defendant by and with the consent of all parties their counsel and attorneys that a juror should be withdrawn and all matters in difference between the said parties should be referred to the award arbitrament final end and determination of me the said {A .) so as I should make and publish my award in writing under my hand of and concerning the premises in question on or before the day of then next ensuing And that the said parties should perform fulfil and keep such award so to be made by me the said {A.) as aforesaid And that the costs of the cause should abide the event of the said award And that the costs of the present reference should be in the discretion of me the said {A.) who should direct and award by whom to whom and in what manner the same should be paid as by the said order reference being thereto had will more fully ajij^ear And whereas the time for making and publishing the said arbitrator's award (a) Or, "at Westminster in und (or tlic county of Middlesex." z2 340 ARBITRATION. No. CLVIII. in pursuance of the said recited order hath by several rules of the jwnrd under a g^jcl Couit of Common Pleas made from time to time by and " "- — ^-i-^ with the consent of the said parties been and the same now stands Time of enlarged until the day of this present term Now know ye making: award rpj^^^ j ^^^^ ^^j^ . ^ \ havinff taken upon myself the charge and enlarged. ^ i i • • " burthen of the said reference and having inspected the copartner- ship books of account and having examined and duly considered the allegations vouchers proofs and witnesses of the said parties respectively do make and publish this my award of and concern- Award, ing the premises (that is to say) / do award order and direct That all proceedings in the said cause shall cease and be no further prosecuted And that the said C. D. shall pay &:c. [cis before, Award vnder Submission by Deed] which said sum of £ I do adjudge and declare to be justly due from the said C. D. to the said A. B. for or upon the matters contained in the declara- tions in the said cause Subject nevertheless to this proviso That if on or before the said day of the said C. D. shall pay or discharge all or any part of the balances due to the creditors C. D. to pay of the Said tirm of A. B. and C. D, then upon delivering to the A.^. a certain ^^j^ j^ ^ ^^ ^j^^ ^j^^ ^^^ pj^^^^ aforesaid proper receipts and discharges for so much as he shall have so paid the same shall be taken and deemed as payment of so much of the said sum of £ as by the said receipts and discharges shall be expressed to have been received or otherwise that he the said C. D. shall pay the whole of the said sum of £ to the said A. B. who thereout shall pay and satisfy such balances to the several persons A. B. to collect as aforesaid And I do further award order and direct That the iii^the debts, gj^-^ Q J) ^Iq ^^^ gj^j^ll permit the said A. B. to collect and re- ceive for their joint use the several debts and sums of money as follow (that is to say) [here state the names of the several debtors to the firm and the amount of their debts] And I do further award and direct That the said A. B. shall be at hberty to bring any action or actions either in his own name or in their joint names for the recovering of any debt or debts sum or sums of money hereinbefore mentioned But nevertheless if the said A. B, should bring anv actions in the name of the said C. D. without his consent first had and obtained that then the said A. B. shall save harmless and indemnify the said C. D. from all consequences charges and expenses attending any such action if the same should happen to fail and be fruitless And I do further award order and direct That the said A. B. shall not compound or compromise any action to be brought for the recovery of the said debts or ARBITRATION. 341 sums of money without the consent of the said C. D. in writing No. CLVIII. for that purpose first had and obtained And that the said A. B. '^}';"jf/X';^;_ shall within days after the payment of the said sum of £ so awarded at his own expense enter into and deliver a bond to the said C. D. in the penalty of £ with a condition To Rive a bond 1 • 1 • 1- i.1. . , to C. D. that thereunder written for maknig the same void m case he the said he will account. A. B. shall give to the said C. D. an account of his proceedings in the collecting of the said outstanding debts from time to time within six weeks after any request in writing so to do And shall also from time to time as the same debts are respectively received pay to the said C. D. one moiety thereof all reasonable expenses attending the collecting and receiving the same being first de- ducted And lastly I do hereby award order and direct That each of the said parties shall and do bear and pay his own costs of this reference And that the costs of this our award be paid in equal moieties between them (a) In witness Sec. No. CLIX. No. CLIX. Award under a Submission by Order of the Lord Chancellor. Under Lord Chancellor' s To all &c. [see last precedent'] Wliereas by a certain order made Order. by the Lord High Chancellor of Great Britain on the day chanceilor^s°''^ of in the year of &c. in a certain cause depending in the order. High Court of Chancery wherein A. B. of &c. was plaintiff and C. D. of &c. defendant It was ordered by consent of the parties and their counsel &c. among other things that the settlement of the accounts and all other matters in difference between the said ]mrties should be referred to me the said {Arbitrator) Now Award. know ye That I the said {A.) having taken upon myself [see last precedent'] do hereby award adjudge and declare the balance due C. D. to pay from the said C. D. to the said A. B. upon such settlement to be ^'' ^/^^ the sum of £ which said sum 1 do award order and direct that the said C. D. do and shall pay unto the said A. B. at i&c. And 1 do further awaid order adjudge and determine that the said A. B. shall within days after the payment of the said sum of £ at the costs and expense of the said C D. execute A. B. to exe- cute convey- - aiice. («) Where it is ordered by tlie rule of court, that the costs of ilic csuisfi shall abide the event of the award, the arbitrator has no occasion to take notice of any costs but the costs of reference. 342 ARBITRATION. No. CLIX. Under Lord Chancellor' s Order. Costs to be borne equally by the parties. such a good and effectual conveyance and assurance of the mes- suage or tenement in the occupation of the said A. B. situate &c. to and for the use of the said C. D. or as he shall direct and that he the said C. D. shall upon the execution of the said conveyance pay unto the said A. B. the sum of £ as a consideration for the same And lastly I do award (fee. That the costs charges and expenses of the suit and reference and also of this my award which I do adjudge to amount in the whole to the sum of £ shall be borne and paid by the said parties in difference in equal moieties and proportions In icltness Sec. No. CLX. Award by an Umpire. Recital of cross bonds to abide an award of arbitrators. Or of umpire. Appointment of umpire. No. CLX. Award hj an Umjjlre. To all to icliom these Presents shall come I (umpire) of (fee. send greeting Whereas A. B. of \'tth of testa tor. De!)t from hus- band to testa- tor. Pxind from liusband to executors. Executors agree to be paid by instal- ments. ASSIGNMENTS. 351 And also should on the day of and the day No. CLXill. of in each succeeding year by half-yearly payments pay Annuity. the like sura then the said bond or obligation shall be void And Juds;ment en- lohercas the payment of the said sum of £ and interest by .vananroTat- instalments as hereinbefore mentioned was further secured to torney. the said {E.) as executors as aforesaid by a warrant of attorney under the hand and seal of the said {H.) bearing date &:c. for confessino- iudirment aoainst him in an action of debt in the Court of Common Pleas at Westminster at the suit of the said {E.) for the said sum of £ And ichereas no part of the said sum of £ hath been paid by the said (H.) pursuant to the condition in the said recited bond of day of and in conse- quence of such default in payment the said (E.) entered up judg- ment pursuant to the said warrant of attorney for the sum of £ and costs of suit but no execution hath been sued out on the said judgment A?id whereas all interest hath been paid up to the day of the date of these presents And whereas the said Agreement on (H.) being at present unable to pay any part of the said principal Jo'iiKiKn^ieT ^ sum of £ the said (.4.) at his request hath agreed to transfer annuity to exe- ^ ^ 111 cutors. the said annuity or yearly sum of £ bequeathed to her as aforesaid unto the said {E.) Upon such trusts as are hereinafter declared for securing the payment of the said sum of £ and the interest thereof by instalments And in consideration thereof the said {E.) have agreed to enter into the covenants hereinafter contained for postponing the enforcement of the immediate pay- ment of the said sum of £ in manner hereinafter mentioned Now this Indenture witnesseth That in pursuance of the said re- Testatum. cited agreement on the part of the said (A.) the said (A.) at the request and by the direction of the said {H.) testified by his being a party to and executing these presents Doth hereby grant and assisn unto the said {E.) All that the said annuity or yearly sum of £ in and by the said recited will of the said I. S. deceased given and bequeathed to the said (A.) as aforesaid Together with all powers remedies and means whatsoever requisite and necessary i'or recovering receiving and giving effectual receipts releases and discharges for the same annuity and every part thereof And all the right title and interest trust property claim and demand what- soever of her the said {A.) in to and out of the same annuity or yearly sum of £ and all arrears and growing ]mynients thereof To have hold receive take and enjoy the said annuity Habendum, or yearly sum of £ and the arrears and growing payments thereof Together with the said powers remedies and means for 352 ASSIGNMENTS. No. CLXIII. Annuity. To executors. Upon trust. To ])ay princi- pal debt and interest by an- nual instal- ments. To pay surplus to assignor. Trustees to give receipts. recovering and enforcing payment thereof as aforesaid unto the said {E.) their executors administrators and assigns henceforth during the hfe of the said {A.) Nevertheless upon and for the trusts intents and purposes hereinafter expressed and declared of and concerning the same (that is to say) Upon trust that they the said {E.) or the survivors or survivor of them or the exe- cutors administrators or assigns of such survivor do and shall from time to time when and as the said annuity or yearly sura of £ shall become payable receive and retain the same annuity and every part thereof And shall and do yearly and every year until the whole of the principal sum of £ and the interest upon or in respect of the same shall be fully paid and satisfied [in case the said {A.) should so long live] by and out of the said annuity or yearly sum of £ pay and satisfy unto the said personal representatives or representative for the time beino- of the said I. S. deceased the interest which at the end of each half year shall be due and payable upon the said sum of £ or upon so much thereof as shall from time to time remain unpaid The first half-yearly payment of interest to be made at the end of six calendar months to be computed from the day of last past And also at the end of each succeeding half year by and out of the said annuity or yearly sum of £ pay and satisfy unto the personal representatives or representative for the time being of the said I. S. deceased the sum of £ in or towards the payment or satisfaction of so much of the said sum of £ by way of half-yearly instal- ments And subject and without prejudice to the payments aforesaid Upon trust that they the said (E.) their executors administrators and assigns shall and do stand possessed of and interested in the said annuity or yearly sum of £ or so much thereof as shall not be disposed of under the trusts afore- said In trust for the said {A.) and her assigns A7id it is hereby agreed and declared between and by the said parties hereto that the receipt or receipts of the said (E.) or of the survivors or sur- vivor of them or the executors administrators or assigns of such survivor shall be a good and effectual discharge for the said annuity or yearly sum of £ unto the person or persons paying the same for as much thereof as in such receipt or re- ceipts shall be expressed or acknowledged to be received and that the person or persons paying the said annuity or yearly sum or any part thereof and taking such a receipt or receipts for the same as aforesaid shall not be bound or obliged to see to the ASSIGNMENTS. 353 application or be anywise answerable or accountable for the loss No. CLXlli. misapplication or nonapplication of the money which in such Annuity. receipt or receipts shall be expressed to be received or any part thereof And in consideration of the premises the said (£".) for Covenants from themselves severally and for their respective heirs executors and administrators do hereby covenant with the said {H.) his heirs executors and administrators and every of them That they the said {E.) or any of them or any of their heirs executors administrators or assigns or the executors administrators or assigns of the said I. S. deceased shall not nor will at any time during the life of the said {A.) put the said bonds or either of them in force or Notto put bond bring commence or prosecute any suit or other proceeding at law or in equity against the said {H.) his heirs executors or adminis- trators for recovering or compelling payment of the said sum of £ or any part thereof or the interest thereof or upon or by virtue of the said judgment so entered up against the said {II) in pursuance of the said warrant of attorney as aforesaid Pro- until after the vided always and it is hereby declared and agreed by and be- signer. tween the parties hereto that in case the said (^4.) shall happen to die before the whole of the said principal sum of £ and all interest upon or in respect of the same shall be fully paid and satisfied Then and in such case it shall be lawful for the said {E.) their executors administrators or assigns or any of them or the executors for the time being of the said I. S. at any time or times after the death of the said [A.) to enforce the said recited bonds or either of them and bring commence and prosecute any action suit or other proceeding at law or in equity against the said {H.) his executors or administrators for recovering and enforcing pay- ment of the said sum of £ or any part thereof or the interest thereof In witness Sec. No. CLXIV. ^., ^,^„, Assignment of an Annuity by Indorsement. Annuity by Indorsement. To all to v;hom these Presents shall come {assignor) of iS:c. sendeth greeting Wliereas all arrears of the within menlionrd Recital that all , '^ , 1 1 r r. 1 ii an ears are paid, annuity yearly rent-ciiarge or annual sum or £ by the within written indenture granted to him the said {assignor) his executors administrators and assigns durin"; the term of his natural life as within mentioned have been fully paid and satisfied VOL. I. A A 354 ASSIGNMENTS. No. CLXIV. Annuity by I)idoi:sciiient. Habendum. Covenants from assignor. Good right to assign. Quiet enjoy- ment. Free from in- cumbrances. to the said (assignor) up to the day of the date hereof Noiv know ye That in consideration of the sum of £ of &c. by (assignee) of &:c. to the said (assignor) now well and truly paid the receipt of which is hereby acknowledged he the said (as- signor) doth grant and assign unto the said (assignee) his execu- tors administrators and assigns All the said annuity or yearly sum of £ payable and issuing out of the messuage and premises in the within mentioned indenture and thereby granted And also all the estate right interest claim and demand whatso- ever of him the said (assignor) of in and to &c. To have &c. the said annuity &c. unto the said {assignee) his executors &c. during the term of the natural life of the said (assignor) with full power and authority for him the said (assignee) his executors &c. to recover and receive the same in as large ample and beneficial a manner to all intents and purposes as he the said (assignor) might could should or ought to have enjoyed the same if these presents had not been made And the said (assignor) for himself &:c. doth hereby covenant with the said (assignee) his executors administrators and assigns that he the said (as- signor) now hath good right and full power to assign the said annuity or yearly rent-charge hereby assigned or intended so to be And also that he hath not heretofore charged discharged or incumbered the said annuity or yearly rent-charge hereby as- signed or intended so to be or any part thereof And also that he the said (assignee) his executors &c. shall and lawfully may peaceably and quietly have hold receive and enjoy the said annuity or rent-charge of £ to and for his and their proper use and benetit without any let suit trouble hindrance molesta- tion or interruption whatsoever of from or by him the said (assignor) his executors &c. or any other person or persons whatsoever and that free and clear and freely clearly and abso- lutely discharged and exonerated from all charges and incum- brances whatsoever And further that he the said (assignor) will from time to time during the life of the said (assignor) at the request of the said (assignee) but at the cost of the said ^assignor) do all such acts for further assigning and assuring the said annuity or yearly rent-charge unto the said {assignee) his executors administrators or assigns in manner aforesaid as by the said (assignee) his executors administrators or assigns shall be reasonably required In witness &c. N.B. In a case of this kind it must be considered hy the assignor whether the covenants should be restricted to his own acts and those claiming under him. ASSIGNMENTS. 355 No. CLXV. Assignment of Exchequer Annuities. Know all Men hy these Presents That for and in consideration of the sum of £ to me (assignor) of &c. in hand well and truly paid by (assignee) of &c. the receipt whereof is hereby acknowledged I the said (assignor) Do hereby grant bargain sell and assign unto the said (assignee) the several orders bearing date &:c. made unto and in the name of me the said (assignor) by virtue and in pursuance of an act of parliament passed in the year &c. entitled &:c. in consideration of the respective sums therein paid by me into the receipt of her Majesty's Ex- chequer for the same which orders are of the several numbers and for the several annuities or yearly sums payable by four equal quarterly payments for the term of years to be com- puted from the &c. as follows viz. one number [set out the several numbers^ Together with the several tallies made and struck for the purchase-money of the said respective annuities And also the said annuities or yearly sums payable by or upon the said orders respectively during the residue of the said term of years respectively and all the estate &:c. of me the said (assignor) of and in the said several orders tallies and annuities aforesaid To have &c. the said several annuities and every of them and every part thereof unto the said (assignee) his executors admi- nistrators and assigns to his and their proper use and benefit for and during; the residue &:c. of the said term of years yet to come and unexpired in as ample and beneficial a manner as the said (assignor) could have enjoyed the same if these presents had not been made free and clear from all charges and incum- brances made done or committed by me the said (assignor) or any other person or persons whomsoever In witness Sec. No. CLXV. Exchequer Annuities. No. CLXVI. Assignment of Articles of Clcrhship to surviving Partner (a). This Indenture &c. Between E. F. of &c. spinster of the first part W. D. the younger of &c. of the second part W. D. the (a) See ante, pp. 300—308. A A 2 No. CLXVI. Articles of Clerkship. 356 ASSIGNMENTS. Articles of Clerkship. Recital of ar- ticles of clerk- ship. No. CLXVI. elder of &;c. merchant and father of the said W. D. the younger of the third part and G. F. of &c. gentleman one of the attornies of her Majesty's Courts of Queen's Bench and Common Pleas at Westminster and brother and late copartner of W. F. deceased of the fourth part Whereas by an indenture of clerkship bearing date the day of and made between the said W. F. deceased late one of the attornies &c. as aforesaid of the one part and the said W. D. the elder and W. D. the younger of the other part the said W. D. the younger with the consent and approbation of his said father testified as is therein mentioned did put place and bind himself clerk to the said W. F. to serve him in the practice of an attorney at law and solicitor in Chancery from the day of the date of the said indenture for and during the term of five years from thence next ensuing and under and subject to such covenants articles and agreements as in the said indenture mentioned And ichereas the said W. F, departed this life on or about the day of last past having duly made and published his last will and testament in writing- bearing date the day of the same month of and thereby named and appointed his sister the said E. F. his ex- ecutrix of his said will who on or about the day of the said month duly proved the same in the Prerogative Court of the Archbishop of Canterbury Now this Indenture witnesseth That the said E. F. for divers good causes and considerations her thereunto moving at the desire of the said W. D. the younger and with the consent and approbation of the said W. D. the elder testified by their severally executing these presents Doth assign unto the said G. F. his executors administrators and assigns as well the said recited indenture of clerkship and all benefit thereof as also all the right interest service profit ad- vantage claim and demand whatsoever and howsoever to arise or be had from henceforth of the service of the said W, D. the younger during the now residue of the said term of five years by force and virtue of the said recited indenture or otherwise how- soever Subject nevertheless to the several covenants articles and agreements mentioned and contained in the said recited indenture on the part of the said W. F. his executors administrators or assigns to be done and performed To have and to hold the said indenture of clerkship and all benefit and advantage to arise therefrom unto the said G. F. his executors administrators and assigns from henceforth for and during all the residue of the said term of five years now to come and unexpired in as ample ASSIGNMENTS. 357 and beneficial a manner to all intents and purposes as she the No. CLXVI. said E. F. can or may assign the same but nevertheless subject "^cte'rllii^ as is hereinbefore mentioned And the said W. D. the younger doth hereby covenant and agree with the said G. F. his executors and administrators that he the said W. D. kc. shall and will well and truly serve the said G. F. during the residue of the said term of five years as such clerk as aforesaid and truly observe perform and keep all and singular the covenants articles and agreements in the said indenture of clerkship mentioned and on his part and behalf to be done and performed In witness Sec. No- CLXVII. Assignment of Articles of Clerkship hy Indorsement. By Indorsement. Know all Men hy these Presents That the said within named parties having mutually agreed to vacate the within written con- tract the within named {assignor) at the request and by and with the approbation of the within named {clerk's father) and {clerk) testified by their severally signing and sealing these presents Hath assigned and turned over the said (C) to {assignee) of &c. gentleman to serve him as his clerk under the conditions within mentioned for the remainder of the within mentioned term of years And the said {assignee) in consideration of £ Assignment to in hand well and truly paid by the said {assignor or clerk's "^wpnncipa. father, or otherwise as the case may be) Hath accepted taken and received him the within named (C) to continue and be with him as his clerk during the remainder of the within mentioned term of years under the conditions in the within written articles mentioned And in consideration of the premises they Release from the said {assignor, father and clerk) do hereby for themselves a,' j^^rL and their several executors administrators and assigns mutually release each other their executors and administrators of and from the within written articles and the performance of all the cove- nants and agreements therein contained In witness &cc. 358 ASSIGNMENTS. No, CLXVIII. Bill of Sale. Stamp. Recital of sale to vendor. Testatum. Habendum. Free from in- cumbrances. No. CLXVIII. Assignment of Bill of Sale of Goods. Ohs. 1. As to the nature of a bill of sale, see jiost, Bills of Sale. 2. An ad valorem stamp on the consideration money. To all to whom these Presents shall come {Assignor) of &;c. sendeth greeting Whereas (Vendor) of &:c. in and by his deed or bill of sale under his hand bearing date &c. did for the con- sideration therein expressed bargain sell and deliver unto me the said {assignor) my executors administrators and assigns all and every the goods implements and wares remaining and being &:c. as in the schedule or inventory to the same deed or bill of sale annexed are more particularly expressed Now know ye That in consideration of the sum of £ in hand to me well and truly paid by {assignee) of &:c. the receipt &c. I the said {as- signor) Do hereby grant assign transfer and set over in plain and open market All and every the goods wares and imple- ments in the above recited bill of sale and in the schedule thereunto annexed mentioned and thereby bargained and sold or expressed to be so as aforesaid To have and to hold all and every the goods wares and implements hereby assigned or in- tended so to be unto the said {assignee) his executors adminis- trators and assigns to and for his and their own benefit and as his and their proper goods and chattels from henceforth for ever And I the said {assignor) do hereby for myself my executors &c. covenant &:c. with the said {assignee) his &c. That the said deed or bill of sale is a good and valid instrument and that the premises hereby assigned or otherwise assured or intended so to be with the appurtenances are and shall remain and continue unto the said {assignee) his executors administrators and assigns free and clear of and from all former and other rights titles charges liens and incumbrances whatsoever done committed or suffered by the said {assignor) and the said {V.) or any other person whatsoever In witness kc. No. CLXIX. Bill of Sale. No. CLXIX. Assignment of a Conditional Bill of Sale. To all to whom these Presents shall come I {assignor) of &:c. Whereas { V.) of &;c. in and by &c. did &c. [see send greeting ASSIGNMENTS. 359 last precedent] Subject nevertheless to a proviso or condition No.CLXix. for making void the same as in the within written bill of sale is J^ aiofSaie. contained in that behalf Now knoio ye That &c. in considera- Testatum, tion kc. I the said (assic/nor) Do grant &c. unto the said (as- signee) all &c. [u-ith power to bring actions and suits in assignor's jiame] To have &c. as fully and beneficially as I the said (as- Habendum. signor) might have held and enjoyed the same Subject never- theless to the proviso for redemption as aforesaid And I the Covenants from said [assignor) do hereby for myself Sec. covenant with the said (assianee) his &c. That the said debt or sum of £ is still Debt is sub- due and owing ^Jnd that I the said (assignor) have not done or ^^.^ ^^^ ^^ .^_ suffered and shall not nor will at any time hereafter do or suffer cumber. any act whereby the said (assignee) his executors kc. shall be prevented or hindered from recovering the said debt or sum of £ heiebv assig-ned or any part thereof And also that if Further as- JO .'I p 1 -J c surance. default shall happen to be made in payment of the said sum ot £ and interest thereof I the said (assignor) my executors &c. shall and will at the request costs and charges of the said {assignee) make do and execute all such other acts deeds and things for the better enabling the said (assignee) his &c. to recover and receive the said sum of £ as by the said (assignee) his executors &c. or his or their counsel in the law shall be reason- ably advised or required And the said (assignee) doth hereby Indemnityfrom •J ^ n • 1 1 • 1 / • assignee, for himself his executors &c. covenant &c. with the said (assignor) his executors &c. That he the said (assignor) his &c. shall and will at all times hereafter save harmless and indemnified the said (assignor) his executors &c. of from and against all costs charges damages and expenses whatsoever which shall or may fall upon or become payable by the said (assignor) his executors or admi- nistrators for or by reason of any action or suit or other legal or equitable proceeding which shall or may be brought or prose- cuted in the name or names of the said (assignor) his &c. by virtue of these presents or otherwise In witness Sec. 360 ASSIGNMENTS. ASSIGNMENTS OF BONDS. 1 . Bonds not assignable at Law. 2. Bond deemed satisfied, when. 3. Notice to Obligor. 4. Stamp. Bomls not ns- sisrnable at law. Bond deemed satisfied, when. Notice to oblisror. Stamp. Sect. 1. Bonds, being choses in action, so called because they cannot be reduced into possession excejot in due course of law, are not properly assignable by the common law, 1 Inst. 232 ; therefore, if on an assignment an action is brought, it must be brought in the name of the obligee, and for the same reason a power of attorney and a covenant from the obligee not to release the debt or revoke his power must foi'm a part of every such deed. 2. No assignment of a bond should be taken, unless there be evidence that the debt is still subsisting, as the courts have made it a rule to direct the jury to find a bond satisfied after a lapse of twenty years, without demand or acknowledgment, 1 Ves. 51. This is con- firmed by 3 & 4 Will. 4, c.42, ss. 3, 5, which provides that no action of debt or covenant shall be brought upon any bond or other specialty but within twenty years, unless there be an acknowledgment in writing by the party liable or part payment on account of principal or in- terest. See Shelford's Real Prop. Stat. pp. 269—275, 6th ed, 3. On an assignment of a bond, notice must be given to the obligor, otherwise payment by him to the obligee will be good. As to the assignment of bonds and other choses in action, see further Assign- ments, Pref. sects. 2, 4, pp. 344, 346. 4. An ad valorem, duty on the consideration money, see Pref. sect. 9, p. 347. No. CLXX. ^°- CLXX. Bond. Assignment of a Bond. This Indenture made &c. Between {assignor) of &c. of the one Recital of bond, part and (assignee) of &c. of the other part Whereas (obligor) of &;c. by a certain bond or obligation under his hand and seal duly executed bearing date on or about the day of became bound to the said (assigyior) in the penal sum of £ of &c. with a condition thereunder written to be void on pay- ment by said (obligor) unto the said (assignor) his executors Agreement to administrators or assigns of the full sum of £ And money. whcreas the said (assignee) hath agreed to pay to the said (as- ASSIGNMENTS. 361 signor) the sum of £ upon having an assignment made ^'o- CLXX. to him the said {assignee) of the said in part recited bond and all ^°'"^' principal and interest due and to become due thereon in manner as hereinafter mentioned Now this Indenture icitnesseth That in Testatum, consideration of the sum of £ of &c. to the said (assignor) by the said (assignee) well and truly paid at &c. He the said (assignor) Doth hereby bargain sell and assign unto the said (assignee) his executors administrators and assigns All that the said in part recited bond or obligation and all monies here- after to become due and payable thereupon or by force or virtue thereof and all the right title benefit advantage claim and de- mand whatsoever of the said (assignor) of and in the same pre- mises and every or any part thereof To have hold receive and Habendum, take the said bond or obligation and premises hereby assigned or intended so to be unto the said (assignee) his executors administrators and assigns for his and their proper use And for Power of attor- the considerations aforesaid the said (assignor) doth hereby con- "'^y* stitute and appoint the said (assignee) his executors administrators and assigns his true and lawful attorney and attornies in the name or names of the said (assignor) his executors administra- tors or assigns to ask demand and receive all and every the sum and sums of money now due or hereafter to become due upon the said bond or obligation and on non-payment thereof or any part thereof in the name or names of the said (assignor) his executors or administrators but at the proper costs and charges of the said (assignee) his executors administrators or assigns to commence and prosecute with effect any actions or suits against the said (obligor) his executors or administrators until full satisfaction and payment of the said sum of £ And on receipt thereof to cancel or deliver up the said bond or obligation or to make and give good and sufficient releases and discharges for the sum or sums of money so received and finally in his name to do perform and execute all sucli further and other acts deeds matters and things touching the premises as the said (assignee) his executors &c. shall deem requisite lie the said (assignor) for himself &c, hereby ratifying and con- firming whatsoever the said (assignee) his executors &c. shall lawfully do in or about the premises by virtue of these presents and one or more attorney or attornies under him and them from time to time to substitute or appoint for the purposes aforesaid A7id the said {assignor) for himself his executors and m\nu- Covenuit.s. nistrators doth hereby covenant with the said (assignee) his 362 ASSIGNMENTS. No. CLXX. Bond. Bond still sub- sisting. Assignor not to receive money, nor revoke power. Assignee to in- demnify as- signor. executors &c. That the said bond at the time of the sealino- and dehvery of these presents is in full force and valid and effectual in the law and not assigned released vacated cancelled or other- wise made void And also that he the said {assignor) his exe- cutors or administrators shall not nor will at any time hereafter receive the said monies due or to become due on the said bond or obligation or any part thereof nor revoke invalidate hinder or make void these presents or any authority or power hereby given without the licence or consent of the said (assignee) his executors &:c. first had and obtained in writing for that pur- pose And the said (assignee) for himself his executors admi- nistrators and assigns doth hereby covenant &c. with the said {assignor) his executors and administrators That he the said {assignee) his &c. shall and will at all times indemnify the said {assignor) his &c. of from and against all costs charges expenses and damages which he or they or any of them shall pay sustain or be put unto for or by reason or on account of any proceedings to be had either at law or in equity on account of the premises by virtue or means of these presents so as the same do not arise or accrue through the collusion or act of the said {assignor) his executors or administrators In witness kc. No. CLXXI. No. CLXXI. Bond and Judg- Assignment of a Bond and Judgment hy a Husband and a Wife '"^"^* as a Security for a Debt. Ohs. Bonds being chases in action, a husband has not the power of assigning them ; he has only the power of reducing them into pos- session during his life. If he assign them, the assignee standing in his place may, during his life, sue in the name of the husband ; but if he die before the assignee has reduced them into possession, the right of action will survive to the wife, 1 Rop. Hus. & W. 225 ; and equity will not support the husband's assignment of a wife's bond, although made for a valuable consideration, Burnet v. Kinaston, 2 Freem. 239; S. C. 2 Yern. 401 ; Free, in Cha. 121; Parher (in Free. Cha. 412, nam. Packer') v. Wyndham, Gilb. Rep. Eq. 98. To all to whom these Presents shall come {assignor) of &c. and S. his wife late {maiden name) of (fee. spinster send greeting Recitalofbond. Whereas {obligor) of &c. in or by one bond &c. became bound unto the said {wife's maiden name) before her intermarriage with ASSIGNMENTS. 363 the said {assigtioi') in the penal sum of £ conditioned for No. CLXXI. the payment of £ and interest at a day long since past (a) Bond and Judg- And whereas default was made in payment of the said sum of £ and interest on the day mentioned in the condition of the said in part recited bond and the said ( assignor) did in term last past obtain a judgment in her Majesty's Court at Westminster in an action of debt on the said bond for the sum of £ besides costs of suit against him the said {obligor) as by the record of the judgment entered up in the same court re- ference being thereto had will more fully appear Ayid whereas the said {assignor) having occasion to borrow the sum of £ hath requested the said {assignee) to advance the same and he hath agreed so to do on having the said in part recited bond or obligation Together with the said (6) judgment assigned to him as a security for the repayment thereof Now Jiiww ye That in Testatum, consideration of &:c. to the said {assignor) and S. his wife or one of them in hand paid by the &c. the receipt of which the said {assignor) and S. his wife do hereby acknowledge and of and from the same do acquit and discharge the said {assignee) his executors &c. He the said {assignor) and S. his wife do and each of them doth hereby bargain sell and assign unto the said {assignee) his executors administrators and assigns All that the hereinbefore recited bond or obligation and also the principal and interest thereon secured as aforesaid and all and every other sum or sums of money now due or which at any future time shall become due and payable on the same Together with the said judgment (c) so recovered thereupon as aforesaid and all benefit and advantage to be had or derived thereon and all the estate right title interest property claim and demand what- soever of &c. To have &cc. the said bond&c and the said judg- Habendum, ment and all and singular the sum and sums of money thereon secured and hereby assigned and intended so to be unto the said {assignee) his executors &c. for his and their own proper use (a) If it be a judgment obtained on a warrant of attorney, saj', '^ And whereas for the better securing the ])aynicnt of tlie said sum of ,£ the said {obligor) executed a warrant of attorney bearing even date witli the said bond authorizing certain attornies therein named to confess judgment thereupon in her Majesty's Court of And whereas judgment was confessed and entered on record of the said court us of term then next ensuing as by reference tliereto will more fully ajtpear." {!)) Or, "the said warrant of attorney and judguient." (e) Or, " 80 entered up." 364 ASSIGNMENTS. No. CLXXI. in as full and ample a manner to all intents and purposes as Bond and Judg- j}^gy ^j^g gg^j^j (cissignor) and S. his wife or either of them could or might have held or enjoyed the same in case these presents had not been made Upon this condition nevertheless and it is the true intent and meaning of these presents that if they the said {assignor) and S. his wife or either of them or either of their executors administrators or assigns shall and do well and truly .pay or cause to be paid unto the said {assignee) his executors administrators or assigns the full sum of £ on the day of next ensuing Then he the said {assignee) his exe- cutors &;c. shall deliver up the said bond or obligation and judg- ment and these presents are to be cancelled and made void anything either at law or in equity herein contained to the con- Power of attor- trary thereof in anywise notwithstanding And the said {as- °^^" signor) and S. his wife do hereby constitute the said (assignee) &:c. his and their true &c. attorney or attornies in their names or in the names of their executors but for the sole and proper use and benefit of the said {assignee) his executors &c. to ask demand and receive all such sum and sums of money as now are or shall become due and payable on the said bond &c. from and after the said day of next ensuing in case the said sum of £ should not ]then be fully paid and satisfied And upon non-payment thereof or of any part thereof to sue and prosecute to effect any execution or executions or other process whatsoever as shall be deemed necessary and expedient for receiving and recovering the same A7id on payment thereof to deliver up and cancel the said bond and to give discharges for the same and to acknowledge or cause to be acknowledged satisfaction upon the said judgment and to do and act in every thing relating to the same as the said {assignor) and S. his wife or either of them might or could have done had not these presents been made He the said {assignee) his executors admi- nistrators and assigns rendering and paying to them the said {assignor) and S. his wife or either of them their or either of their executors administrators or assigns the surplus or remain- der of the said money that shall become due and payable to them the said {assignor) and S. his wife their executors or either of them on the said bond and which he the said {assignee) shall receive thereupon after deducting what shall be justly due and owing to the said {assignee) at the time of such receipt and pay- Covenants from ment And the said {assignor) doth hereby for himself his heirs the assignor. executors and administrators covenant with the said {assignee) ASSIGNMENTS. 365 his executors administrators and assigns that they the said No. CLXXI, {assignor) and S. his wife one of them or their or one of their Bond and Jud^ executors &c. shall &c. pay kc. And that the said bond kc 'a ment. [is Still subsisting Sfc. and for further assurance, as in the two last ^.° ^^^ ' precedents']. Assignment of a Bond and Policy of Insurance to IViistees of a Marriage Settlement, upon the Trusts to be declared by Settle- ment, see post, Settlements. No. CLXXIT. . . ^ ^ No. CLXXII. Assignment of Part of the Cargo of a Ship. c^^„g^ '6" To all to ichom these Presents shall come {assignors) of &:c. Whereas there is a cargo or adventure of timber on board the Recital of the ship lying at called of the burden of tons or '^'"'^°" thereabouts of which the said {assignors) are part owners And whereas the said {assignee) of &;c. hath agreed to pay the sum of £ for one part of the said cargo Now know ye That in consideration of the sum of £ so paid at or before &;c. the receipt whereof is hereby acknowledged They the said {assignors) Do hereby grant .) Noio this Indenture wit- nesseth That upon the request of the said (Z>.) lie the said (11) Doth by these presents assign unto her the said (D.) one third part of the said lands and tenements to wit All that mes- suage &c. To have and to hold unto the said (D.) for and during the natural life of the said (Z>.)in severalty by metes and bounds as for and in the name of dower and in full satisfaction of all claim which the said (Z>.) hath or ought to have of or in the said lands and tenements of which the said A. B. was seised in his 374 ASSIGNMENTS. No. CLXXVII. Dower. lifetime A7}d the said (D.) doth hereby accept the said mes- suage or tenement &c. so assigned as and for her dower and in full satisfaction of the same In witness '&c. No. CLXXVIII. Executorship. Recital. Payment of debts and le- gacies. Agreement to assign. Testatum. No. CLXXVIII. Assignment of an Executorship and Indemnity of the Executor hy a Mortgage. Ohs. 1. An executorship, being an office of trust, is not assignable (see Pref. sect. 5) otherwise than in the qualified manner of the fol- lowing precedent, which has been taken with some variations from Wood's ConveyanrAng. 2. As to the stamp, see Pref. sect. 9, p. 347. This Indenture made «&:c. Between {Heir) son and heir and also residuary legatee under the will of A. B. late of &c. deceased of the one part and {Executoi') of &c. executor of the last will and testament of the said A. B. Whereas the said A. B. did by his last will and testament in writing bearing date &:c. devise all his messuages lands tenements and hereditaments and did bequeath all his personal estate unto {E.) and E. F. (since deceased) their heirs and assigns In trust by sale or mortgage or otherwise to raise and pay his debts funeral expenses and legacies and made the said {H.) his residuary legatee And whereas the said {E.) hath by and with the privity and consent of the said {H.) paid and discharged the funeral expenses and divers debts and lega- cies of the said A. B. which are mentioned in the schedule here- unto annexed and hath delivered all discharges and acquittances which were made and given to him the said {E.) for the several sums of money so paid as the said {H.) doth hereby acknow- ledge And lohereas it hath been agreed between the said {H.) and the said {E.) that the said {H.) shall from henceforth take upon him the payment of all such legacies and sums of money as yet remain payable by force of the said last will and that the said (jEJ.) shall for that purpose assign unto the said {H.) all such goods chattels and other things as the said {E.) hath or is en- titled to as executor of the same will in such manner as is here- inafter expressed And the said {H.) hath agreed to make such lease and demise to the said {E.) as is hereinafter contained to the intent thereby to indemnify him the said {E.) Now this Indenture witnesseth That in consideration of the premises He ASSIGNMENTS. O/O the said (E.) Both grrant &c. unto the said {H.) All tJwse the ^,^,^o- „ * CL\ v\ 111 said letters of administration and probate of the will of the said £j.J^^,g^^;^;_ A. B. deceased and all the goods chattels debts securities for debts and other things which the said (E.) hath or is entitled unto as executor of the last will and testament of the said A. B. deceased the receipt of which said letters &c. the said {H.) doth hereby acknowledge To have hold receive and take the same and every of them and all the right title and interest of him the said (E.) therein and thereunto and all and singular other the premises hereby assigned unto the said (H.) his executors &c. in as large ample and beneficial a manner as he the said (E.) might have held received and taken the same by virtue of the said will And the saidC-EJ.) doth hereby give unto the said (H.) his exe- Power of at- . . toniev. cutors kc. full power and authority in the name or names of the said (£".) his executors &:c. but at the costs and charges of the said (H.) his executors &:c. and to and for his and their own use and benefit to demand receive sue for and recover all debts and all other the sums of money due and owing to the estate of the said A. B. deceased and all and every the bonds mortgages secu- rities terms interests and estates concerning or relating to the same which do or shall belong unto the said (E.) as executor of the said will of the said A. B. deceased A7id the said {E,) for No act to in- himself &;c. doth covenant (fee. with the said {H.) his executors &:c. that he the said {E.) his &c. hath not at any time heretofore made done or suffered and shall not nor will at any time or times hereafter make do or suffer any act matter or thing whereby any of the debts or sums now due and owing to the said A. B. de- ceased can or may be released discharged or otherwise And Further as- also that he shall and will at all times hereafter at the reasonable request costs and charges of the said (H.) do any further acts deeds matters and things for the further or better empowering and enabling the said {H.) his executors &c. in the name or names of the said (E.) his executors &c, to demand receive and recover all debts and sums of money due and owing to the estate of the said A. B. deceased And the said (H.) in consideration of the premises doth hereby acknowledge and declare that all the said (E.) hath done or acted in the execution of the last will and testament of the said A. B. deceased and as mentioned in the schedule hereunto annexed hath been with the privity con- sent and approbation of the said (//.) And the said (H.) doth indemnity hereby for himself his executors &c. covenant &c. with the said *^'"'" ''"-" '^^■"^• {E.) his executors &c. that he the said (//.) his heirs executors 376 ASSIGNMENTS. No. CLXXVIII. Executorship. Further testa- tum. Demise to exe- cutor. Proviso for cesser of term. Quiet enjoy- ment until de- fault. 8cc. shall and will from time to time and at all times save harm- less and keep indemnified the said (E.) his executors adminis- trators and assigns and his and their lands and tenements goods and chattels of and from all costs &c. which he or they shall or may sustain &c. by reason of any action &c. and also for or by reason of any default or failure of or in the performance of the said last will and testament of the said A. B. deceased And this Indenture further witnesseth That in further pursuance of &:c. and in consideration of kc. He &c. [demise to executor, see Mortgage by Demise'] Subject nevertheless to the proviso or condition here- inafter mentioned (that is to say) Provided always and it is hereby declared and agreed by and between the said parties hereto that if the said {H.) shall and do well and truly perform all and every the covenants and agreements herein contained on his and their part to be done and performed according to the true intent and meaning of these presents Then the said term of years of and in the said messuages or tenements hereby demised shall at the end of years next ensuing determine and be utterly void to all intents and purposes anything in these presents in any ways to the contrary notwithstanding Provided also That in the meantime and until the said {H.) shall make default in the performance of the covenants and agreements herein contained by means or occasion whereof the said {E.) his executors admi- nistrators or assigns or any of them shall sustain or be put to some trouble suit damage or expense it shall and may be lawful for the said {H.) his heirs executors administrators and assigns peaceably and quietly to have hold and enjoy the said messuages or tenements &;c. hereby demised or otherwise assured or in- tended so to be &c. and to receive and take the rents &c. with- out any let hindrance &c. of or by the said {E.) his heirs &c. And the said {H.) for himself &c. [Covenants from the heir for title.'] No. CLXXIX. Furniture. Recital of tenancy. No. CLXXIX. Assignment of Household Furniture and Verbal Agreement for a Lease. This Indenture aiade &c. Between (assignor) of &c. of the one part and (assignee) of &:c. of the other part V/hereas the said (assignor) is in possession of a messuage or tenement situate &c. as tenant to A. B. of &c. and C. D. of &c. under a yearly rent ASSIGNMENTS. 377 of £ payable quarterly Aiid whereas the said A. B. and No. CLXXIX. C. D. have verbally agreed to grant a lease of the said messuage furniture. or tenement for 21 years from the day of deter min- Verbal agree- able in the first 7 or 14 years at the option of the said (assignor) j^^^'*' S""*^"' And ichereas the s?i\& {assignee) hath contracted with the said Contract for {assignor) for the purchase of the household furniture now being purchase. in or upon the said messuage or tenement mentioned in the schedule or particular thereof hereunder written at or for the price of £ Now this Indenture witnesseth That for and in consideration of £ to the said {assignor) in &:c. by the said {assignee) well &c. paid the receipt &c. He the said {assignor) Doth hereby bargain sell and assign unto the said (assignee) his executors and administrators All and singular the household furniture and things mentioned and specified in the said sche- dule or particular thereof hereunder written and also all the estate right title interest property claim and demand whatsoever of him the said (assignor) into or out of the said messuage or tenement and premises with the appurtenances And the full benefit and advantage to arise and accrue from the said pro- mise or agreement made or entered into by the said A. B. and CD. for such lease thereof as aforesaid or for any other lease To have hold receive take and enjoy the premises hereby as- signed or intended so to be unto the said (assignee) his executors administrators and assigns for his and their use absolutely In witness kc. The schedule above referred to. No. CLXXX. No. CLXXX. Assignment hy a Husband of Household Furniture, Boohs, Plate, Goods. Bills of Exchange, Sfc, to Trustees to sell for the Payment of Debts, and to stand possessed of Surplus for the separate Use of the Wife. Ohs. A settlement after marriage in favour of a wife and children, by a person not indebted at tlie time, and not being a trader, is good against subsequent ci-editors, JJllg v. Oshorn, Ij P. Wins. 298 ; Stephens v. Olive, 2 B. C. C. 90; Kidney v. Coussmaher, 12 Vcs. 155; Battershee v. Farrinyton, 1 Swans. lOG; and although a set- tlement after marriage is fraud ulent against such persons as were creditors at the time the settlement was made, yet it is otherwise if 378 ASSIGNMENTS. No. CLXXX. sucli settlement contains a provision for payment of debts, George Goods. V. 31illbank, 9 Ves. 194. As to settlements by persons being in- solvent within the bankrupt laws, see 12 & 13 Vict. c. 106, s. 126 ; Shelford on the Law^ of Bankruptcy, pp. 210—213, 2nd ed. This Indenture made &c. Between {husband) of &c. and M. his wife of the first part and {trustees) trustees named for the purposes hereinafter mentioned of the second part Whereas the said {H.) is possessed of or entitled to divers books plate and household furniture and is also possessed of or entitled to the bills of exchange particularly mentioned in the first schedule hereunder written And whereas the said {H.) is desirous of making a provision as well for the payment of the debts now due and owing by him and mentioned in the second schedule hereto as for the said M. his wife in manner hereinafter men- tioned And hath therefore proposed and agreed to assign and make over unto the said ( T,) and the survivor of them and the executors &:c. of such survivor all the said books plate house- hold furniture bills of exchange and other particulars upon or for the intents and purposes hereinafter mentioned And whereas the said {H.) hath previously to the date and execution of these presents delivered unto the said {T.) the said books plate house- hold furniture bills of exchange and other particulars Now this Indenture witnesseth That in pursuance of the said agreement he the said {H.) Doth assign unto the said {T.) their executors &c. All and singular the said books plate and household furniture of or to which he was possessed and entitled And also the said bills of exchange particularly mentioned in the said schedule hereunder written And all the right &c. of him the said (/f) of into and out of the same premises and every of them and every part thereof To have hold take and receive all and singular the premises hereinbefore assigned or intended so to be unto the Declaration of said {!'.) their executors administrators and assigns Upon trust trusts. ^^^ ^j^gy ^j^g gg^-^j f^rji-s^ ^^^^ ^l^g survivor of them or the executors or administrators of such survivor their or his assigns do forth- with sell and convert into money the said books plate furniture and other particulars expressed to be hereby assigned and recover and receive the monies due and arising upon or payable by virtue of the said bills of exchange And do out of the monies received and to arise by such sale and conversion after deducting the costs charges and expenses of recovering and receiving the said monies pay and satisfy the debts and sums of money specified in the said second schedule hereto to the persons entitled to receive the same ASSIGNMENTS. 379 And shall and do stand possessed of or interested in the surplus No. CLXXX. of the monies to be received from or on account of the said bills ^°°'^''- of exchange or to arise by such sale and conversion as aforesaid In trust for the sole and separate use of the said M. wife of the said (H.) independently of the said (H.) and not to be subject to his debts and engagements and to pay apply and dispose of such surplus monies to and for such intents and purposes as if the said M. were 2i feme sole and unmarried And the said {H.) for him- Covenant for self his heirs executors and administrators doth covenant &c. with the said ( T.) their executors &c. that he the said {H.) shall and will from time to time and at all times hereafter make do and exe- cute all such further and other lawful and reasonable acts deeds matters and things as shall be necessary for the further assuring and assigning the premises and for the more effectually enabling the said (T.) and the survivor of them &c. to recover and receive the monies due and payable upon or to arise by virtue of the said bills of exchange as by the said (trustees) &cc. or his or their counsel in the law shall be advised or required In witness &c. surance. No. CLXXXI. No. CLXXXI. Assignment of Good-will of a Business. Good-wUi. Obs, 1. The good-will of a trade is assignable, Bunn v. Guy, 4 East, 190; 1 P. Wms. 196. But the sale of a trade does not pre- vent the vendor from setting up a similar trade, unless there be an express stipulation to restrain him from so doing, Shackle v. Baker, 14 Ves. 468. A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good ; but otherwise, if not made for a reasonable consideration ; or if made to the restraint of trade altogether, Mitchell v. Reynolds, 1 Wms. 181. An agreement by an attorney to relinquish his business, and recommend his clients to another, and not to practise himself within certain limits, is valid in law. It is now established, that the good- will of a professional business is a subject of sale equally with the good-will of a trade, Bunn v. Guy, 4 East, 190; Whittahcr v. Howe, 3 Beav. 383 ; Nicholh v. Stretton, 7 Beav. 42 ; Swallow v. IVal- linfjford, 12 Jur. 403 ; Bozon v. Faidon), 1 Mer. 459. See Austen V. iioy/.v, 24 Beav. 598 ; 4 Jur., N. S. 719 ; 27 L. J., Ch. 714, ante, p. 91 ; 1 Davidson's Conveyancing, pp. 476-480, n., 2nd cd. 2. Good-will is ''property" within the meaning of the stamp laws, and is liable to ad valorem duty on conveyance, At/arucy-Gfueral V. Potter, 18 Jur. 778 ; 10 Exch. 147 ; see 17 & 18 Vict. c. 83, s. 19. 380 ASSIGNMENTS. No. CLXXXI. Good-will. Recital of car- rying on trade. Contract for sale. Covenants. Not to carry on trade. Further testa- tum. Assignment of lease. This Indenture made &:c. Between (assignor) of &c. of the one part and (assignee) of &c. of the other part Whereas the said {assignor) hath for many years carried on the trade and business of in the house in which he now dwells and hath established a connexion in the said trade And whereas the said (assignor) hath agreed with the said (assignee) for the sale and relinquish- ment to him the said (assignee) of the said trade or business and also of the lease of the messuage or tenement where the said business is carried on at or for the price of £ to be paid as hereinafter mentioned Now this Indenture witnesseth That in consideration of the sum &c. to the said (assignor) in hand &c. paid by the said (assignee) &c. at &c. the receipt &c. He the said (assignor) Doth grant &c. unto the said (assignee) his executors &c. All and singular the good-will beneficial interest and advan- tage of the connexions and custom which he the said (assignor) now hath in the said trade or business To have hold receive and take the said good-will benefit profit and advantage to be made and obtained by and from the said trade or business And all the estate &c. To have and to hold the said premises hereby assigned or otherwise assured or intended so to be with their appurtenances unto the said (assignee) his &c. And the said (assignor) for himself Sec. his heirs &c. doth hereby covenant &;c. That he the said (assignor) shall not nor will at any time or times hereafter either solely or jointly with or as agent for any other person or persons directly or indirectly carry on or be engaged or concerned or interested in the said (a) trade or business of within miles of or any other trade or busi- ness connected therewith nor shall nor will at any time here- after do or cause to be done any act matter or thing whereby or by reason or by means whereof the said (assignee) shall or may be injured or damnified in the said trade or business And fur- ther that the said (assignor) shall and will during the space of months next hereafter conduct and superintend the said trade &c. at the risk and for the sole benefit of the said (assignee) and use his best endeavours to promote the trade of the said (assignee) to the utmost of his power and also shall and will give his personal attendance in the shop (or counting-house) as often as occasion may require during the said period And this Indenture further witnesseth That in consideration of the pre- mises &c. [see Assignment of Lease, post, pp. 389 — 392] And it (a) See ante, Obs. 1, p. 379. ASSIGNMENTS. 381 is hereby further declared and agreed by and between the said (^lyvvi parties hereto that he the said (assigjior) shall continue to reside Q^'^^^^m] in the said messuage or tenement hereby assigned or otherwise — assured or intended so to be for the space of six calendar months gije on°the° ^^' to be computed from the date hereof without paying rent or taxes premises for . 1 / . s 1 1 1 1 •^' 1 SIX months. for the same unless the said {assignee) should by writmg under his hand give the said {assignor) weeks' notice to quit the said messuao-e or tenement And further That the stock in trade Stock in trade to llP V&lll6U and the fixtures on the said premises shall within the space of one calendar month from the date hereof be valued and appraised by two indifterent persons for that purpose to be chosen the one by the said (assignor) and the other by the said {assignee) and in case they cannot agree by a third person to be chosen by tlie two arbitrators And that he the said {assignee) shall from and immediately after such valuation (a) pay the amount thereof unto the said (assignor) his executors &c. In witness &c. No. CLXXXII. No. CLXXXII. Assignment of the Good-will of a Business, and of Debts due on Good-wUi. account thereof. This Indenture made &c. Between A. B. of &:c, {vendor) of the one part and C. D. of &c. {purchaser) of the other part Whereas the said A. B. hath for many years now last past car- Recitals. ried on the trade or business of at and the same trade or business is now carried on by him at the same place And whereas the said A. B. is entitled to book and other debts due to him in respect of the said trade or business and also to divers goods wares stock in trade and other effects used in the said trade or business And whereas the particulars of the said book and other debts due to the said A. B. and also of the debts owing by the said A. B. are all entered in and appear by the books of account of the said A. B. And whereas the said A. B. hath contracted and agreed with the said C. D. for the sale to him of all his interest and good-will in the said trade or business {a) Or, "give unto the said {assignor) his exeeiitors administrators or as- signs a promissory note in writing under liis hand for payment within calendar months to be computed from the date hereof of such sums as the said stock in trade and fixtures shall be valued at as aforesaid." 382 ASSIGNMENTS. No. CLXXXII. Good- will. Assignment of good-will, &c. Power of at- torney. and of the book and other debts owing to him the said A. B, on account thereof and all other the benefit and advantage thereof upon the terms hereinafter expressed JVow this Indenture wit- nesseth That in consideration of the sum of £ of lawful money of Great Britain to the said A. B. paid by the said C. D. before the execution of these presents {the receijH &c.) and also in consideration of the covenants hereinafter contained on the part of the said C. D. he the said A. B. doth by these presents assign transfer and set over unto the said C. D. his executors administrators and assigns All that the interest and good-will of the said A. B. in the said business or trade of and also all and singular the book and other debts due and owing to the said A. B. in respect of the same business or trade and all and singular the securities for the said debts respectively or any of them and the full benefit of them and all and sinoular the contracts and enoaoements entered into and orders given to the said A. B. in respect of the same business or trade and the full benefit and profit arising from them and all and singular the goods wares merchandize stock in trade machinery and imple- ments of manufacture and trade fixtures furniture articles effects matters and things belonging to the said A. B. in respect of the same business or trade or in anywise appertaining to the same business or trade or used for the purpose of carrying on the same And all the estate right title interest property possibility claim and demand whatsoever either at law or in equity of the said A. B. in to out of or upon the same premises and every of them and every part thereof To have and to hold all and singular the premises hereinbefore expressed to be hereby assigned unto the said C. D. his executors administrators and assigns for his and their own use and benefit And for the better and more effec- tually receiving and getting in the said several debts effects and premises and enforcing the said contracts and engagements and every or any of them the said A. B. Doth by these presents nominate constitute and appoint and in his place and stead put the said C. D. his executors and administrators to be his true and lawful attorney or attornies to ask demand sue for recover receive and give effectual discharges for the said debts and other the premises hereby assigned and every of them and every part thereof And also to adjust liquidate and settle all accounts transactions matters and things whatsoever relative to the pre- mises and to compound compromise or submit to arbitration anv such debt or debts as aforesaid due and owing to the said ASSIGNMENTS. 383 A. B. or any claim or demand dispute or difference subsisting No. or to arise between the said A. B. and any other person or per- q^j ^^m sons whomsoever in respect of the premises or any part thereof in such manner as to the said C. D. his executors or administrators shall seem fit and for the purposes aforesaid to enter into give sign execute or do all or any such bonds of arbitration releases discharges instruments in writing deeds and acts whatsoever as the said CD. his executors or administrators shall think ne- cessary and proper A}id for all or any of the purposes aforesaid to use the name of the said A. B. if the said C D. his executors or administrators shall think fit and generally to execute per- form and do any deed act matter or thing relative to the pre- mises as fully to all intents and purposes as the said A. B. might or could have done in his own proper person in case these pre- sents had not been executed And for better effecting the pur- poses aforesaid the said A. B. doth authorize the said C. D. his executors or administrators from time to time to substitute and appoint one or more person or persons in his or their place or stead with all or any of the powers and authorities and for all or any of the above mentioned intents and purposes which are hereby given to the said C. D. his executors and administrators and from time to time to revoke or vary any such last mentioned appointment and whatsoever the said C. D. his executors or administrators or the person or persons so to be substituted and appointed shall lawfully do or cause to be done in or about the premises the said A. B. Doth hereby for himself his heirs exe- cutors and administrators covenant with the said C. D. his executors administrators and assigns to allow ratify and confirm And the said A. B. doth hereby for himself his heirs executors Covenants by and administrators covenant with the said C. D. his executors administrators and assigns that the said A. B. hath not at any time heretofore contracted any debt or debts or become bound bail or security or otherwise engaged or obliged to pay any debt or sum of money which can charge or affect the stock in trade goods debts effects and premises expressed to be hereby assigned or any part or parts thereof or for the recovery whereof the said C. D. his executors or administrators may be liable to be sued or prosecuted in any court of law or equity whatsoever except such debts as are entered and now apj)ear to be due or owing in the said books kept by the said A. B. for that pur- pose and which have been delivered by him to the said C. D. And that all the debts which by the said books appear to 384 ASSIGNMENTS. No. CLXXXII. Good-will. Covenants by purchaser. be due and owing to the said A. B. as aforesaid are justly due to the said A. B. And that the said contracts and orders ex- pressed to be hereby assigned are subsisting contracts and orders and in nowise vacated or countermanded And that the said A. B, hath not at any time heretofore assigned released dis- charged or received any of the said debts effects and premises or done any other acts whereby or by reason or means whereof the same may be impeached charged or incumbered in any- wise howsoever And that the said A. B. will do all such acts as are necessary for putting C. D. in possession of the good- will assigned to him by introducing him to the customers or connections in business of the said A. B. And further That the said A. B. his executors or administrators will not revoke any of the powers or authorities hereby given to the said C. D. his executors or administrators or his or their or any of their substi- tutes nor receive compound release or discharge any of the debts effects and premises expressed to be hereby assigned nor com- pound release avoid or become nonsuit in any action or suit to be brought commenced or prosecuted for or in respect of the same or any part thereof nor do commit or suffer any act de- fault matter or thing whereby or by means or reason whereof the recovery of the same premises or any part thereof may be impeded delayed or prevented nor interfere nor intermeddle with the same premises further than as the said CD. his executors administrators or assigns shall direct or require And that the said A. B. his executors or administrators shall and will from time to time and at all times hereafter on the request and at the costs and charges of the said C. D. his executors administrators or assigns Do make and execute all and every such further and other lawful acts deeds matters and things for the further better and more effectually enabling the said C. D. his executors ad- ministrators and assigns to recover receive and get in all or any of the same goods wares merchandize stock in trade debts effects and premises as by the person or persons making such request his her and their counsel in the law shall be reasonably devised advised and required And this Indenture further wit- nesseth That in consideration of the premises he the said C. D. Doth hereby for himself his heirs executors and administrators covenant with the said A. B. his executors and administrators that the said C. D. his executors or administrators shall and will well and truly with all convenient speed pay or cause to be paid all and every the debt and debts and sum and sums of money ASSIGNMENTS. 385 appearing in the said books of account delivered by the said A. B. to the said C. D. to be due and owing from the said A. B. and shall and \\i\\ at all times save defend and keep harmless and indemnified the said A. B. his heirs executors and adminis- trators and his and their and every of their estates and effects from and against all costs charges losses damages and expenses which shall or may be sustained or incurred or become payable for or by reason or means of the nonpayment of the said debts or sums of money or any of them or any part thereof or for or by reason of any action suit proceeding claim or demand which shall or may be brought or prosecuted in the name of the said A. B. by virtue or under any power or authority hereby given to the said C. D. his executors and administrators or his or their or any of their substitutes Provided always That the said A. B. his executors or administrators shall not be entitled to require payment of the debts hereby covenanted to be paid by the said C. D. or of any such debts with all convenient speed as aforesaid so long; as the said A. B. his heirs executors and admi- nistrators and his and their and every of their estates and effects are indemnified and saved harmless in pursuance of the said covenant lastly herein contained [Covenant hy A. B. not to carry on trade within a specified distance, see ante, p. 380.] In witness &c. No. CLXXXII. Good-will. No. CLXXXIII. Assignment of the Moiety of a Boarding School {by Indorsement on the Articles of Copartnership). Obs. As to the stamp upon the assignment of a good-will, see ante, p. 379. To all to ichom these Presents shall come The within named (assignor) sendeth greeting Whereas the said (assignor) by virtue of the power given to her in and by the within written articles of copartnership hath contracted and agreed with (assignee) of &c. for the absolute sale to her of her share and interest in the boarding-school now carried on by the said (assignor) in copartnership with the within named I. II. under and subject to such conditions limitations and agreements as are in and by the within written articles expressed and contained Now know ye That in consideration of the sum of £ to the said (assignor) VOL. I. c c No. CLXXXIII. Good-wilL 386 ASSIGNMENTS. No. CLXXXIII. Good- will. well and truly paid the receipt &c. she the said (assignor) Doth sell and assign unto the said (assignee) All that moiety or one- half part of her the said (assignor) of and in the said boarding- school and of and in the said premises where the same is carried on and the furniture fixtures books and other materials relating to the said school and also of and in the within written articles of copartnership And all the estate right title interest property future emolument and advantage claim and demand whatsoever of her the said (assignor) of in or out of the same premises 2h have and to hold the said moiety or one-half part of and in the said boarding-school and all and singular other the premises hereby assigned or intended so to be and all future emolument and advantage to arise from the same in as full ample and bene- ficial a manner as she the said (assignor) might have enjoyed the same if these presents had not been made without any let suit &c. And that free (fee. [see Assignment of Annuity by In- dorsement, ante, p. 354] In witness &c. CLXXXIV. Judgment. Stamp. No. CLXXXIV. Assignment of a Judgment recovered by a Verdict. Ohs. 1. As to judgments and other chases in action, see Assign- ments, Pref. sect. 2, p. 344. 2. A judgment debt has been held not to be property within the meaning of the 55 Geo. 3, and therefore an assignment of such a debt does not require an ad valorem, stamp, but must have the ordinary deed stamp, Warren v. Howe, 3 D. & R. 494; 2 B. & Cr. 281. The 13 & 14 Vict. c. 97, does not appear to affect this decision. It is doubtful whether a judgment debt would not be deemed property within the stamp acts. See 1 & 2 Vict. c. 110, s. 13, Caldwell v. Dawson, 5 Exch. 1. To all to whom these Presents shall come I (assignor) of (fee. send greeting Whereas I (assignor) as of term last past recovered a judgment in her Majesty's Court of at West- minster against A. B. of (fee. for the sum of £ Now know ye That I the said (assignor) for divers good causes and considera- tions me hereunto moving Do bargain sell and assign unto (assignee) of od right to j^ ^^^ ^ggj matter or thing as aforesaid he the said (assignor) now hath in himself good right full power and abso- lute authority to assign the said messuage and premises hereby assigned or intended so to be for and during all the residue and remainder of the said term of years in manner aforesaid and according to the true intent and meaning of these presents For quiet en- And further that it shall and may be lawful to and for the said joyment. (assignee) his executors administrators and assigns from time to time and at all times hereafter during the said term of years peaceably and quietly to enter have hold occupy possess and enjoy the same messuage and premises wdth their appur- (a) If the policjr of insurance be assigned at the same time, say, '' and the said policy of insurance." (b) "Together with all benefit and advantage to accrue from the said policy of insurance." (c) As to qualified covenants, see Obs. 5. valid and sub sistina:. ASSIGNMENTS. 391 tenances and to receive and take the rents issues and profits No.CLXXXV. thereof to and for his and their own use and benefit without any ^''"^- lawful let suit trouble denial eviction interruption claim or de- mand of or by him the said {asshjnor) his executors or adminis- trators or any person or persons lawfully or equitably claiming or to claim by from under or in trust for him them or any of them And that free and clear and freely and clearly acquitted ^J^^^^J'^^J^^I."" exonerated released and for ever discharged or otherwise by the said {assignor) his executors or administrators well and suffi- ciently saved defended and kept harmless and indemnified of from and against all and all manner of former and other estates titles troubles charges and incumbrances whatsoever either already or to be hereafter made done committed or suffered by the said {assignor) his executors or administrators or by any person or persons lawfully claiming or to claim by from under or in trust for him them or any of them save and except the rents covenants conditions and agreements in and by the said herein- before recited indenture of lease reserved and contained and which on the tenant or lessee's part are or ought to be paid ob- served and performed And further that the said {assignor) his Further as- ' 1 11 1 surance. executors and administrators and all other person or persons having or claiming or who shall or may have or claim any estate right title interest property or demand whatsoever either at law or in equity of in to or out of the said messuage or tenement and premises hereby assigned or intended so to be or any of them or any part thereof by from under or in trust for the said {assignor) his executors or administrators shall and will from time to time and at all times during the said term of years at the request and proper costs and charges of the said {assignee) • his executors administrators and assigns make do and execute or cause to be made done or executed all and every such further and other lawful and reasonable acts assignments and assurances in the law whatsoever for the better more perfectly and abso- lutely assigning and assuring of the said messuage &c. for the remainder then to come and unexpired of the said term of years as by the said {assignee) his executors administrators or assigns or his or their counsel in the law shall be reasonably advised devised and required And the said {assignee) doth Covenants from hereby for himself his heirs executors administrators and assigns covenant with the said {assignor) his executors and administrators that he the said {assignee) his heirs executors administrators and assigns shall and will from time to time and at all times here- 392 ASSIGNMENTS. >;o.CLXXXV. Lease. to pay rent. to keep the covenants. Indemnity to assiarnor. after during the said term of years granted by the said in part recited indenture of lease well and truly pay or cause to be paid the yearly rent in and by the same indenture of lease reserved which henceforth shall grow due and payable in respect of the said premises hereby assigned at such time and in such manner as the same is thereby reserved and also shall and will observe perform and keep all and singular the covenants con- ditions and agreements in the said indenture of lease contained and which henceforth on the tenant or lessee's part ought to be paid observed performed and kept And shall and will from time to time and at all times hereafter save defend keep harmless and indemnified the said {assignor) \ns, heirs executors administrators and assigns and his and their lands and tenements goods and chattels from and against the payment of the said rent and the performance of the said covenants conditions and agreements and from and against all and all manner of actions suits cause and causes of action costs charges damages claims and demands whatsoever for or on account of the same or in anywise relating thereto {a) In witness &c. fixtures. (a) Where the fixtures are also to be assigned, this may be done by a further testatum, as follows : " Whereas the several fixtures and other things mentioned in the schedule hereunder written have been agreed to be taken by the said (assignee) at the price or sum of £ Now this Indenture further witnesseth That in consideration of the sum of £ to the said {assignor) paid by the said {assignee) at or before the signing and sealing these presents the receipt whereof he the said {assignor) doth hereby acknow- Assignment of ledge &c. (see the first testatum) He the said {assignor) Doth assign all and singular the stoves grates ranges coppers shelves dressers goods chattels matters and things whatsoever mentioned and set forth in the schedule here- under written or hereunto annexed and every of them and every part and parcel thereof To have &c. the said goods chattels &c. hereby assigned or intended so to be unto the said {assignor) his executors administrators and assigns as his and their own proper goods and efl^ects absolutely and for ever." Where a policy of insurance is to be assigned with a lease, then add, "And whereas by a certain deed-poll in writing bearing date &c. and being or purporting to be a policy of insurance under the hands and seals of the directors of Company he the said {assignor) hath insured the said pre- mises against damages by fire for the sum of £ And it hath been agreed that the same policy shall be assigned to the said {assignee) in manner here- inafter mentioned Now this Indenture further witnesseth That &c. and in consideration of the premises he the said {assignor) Doth assign &c. All that deed-poll or policy of &c. And all the right &c. with full power &c. [see Assignment of a Debt, ante, p. 368] To have &c. the said deed-poll &c. and all and every sum or sums &c. and all and singular" &c. [see Assignment of Policy of Insurance^. Recital of in surance. ASSIGNMENTS. O ^^93 Indorsement). No. CLXXXVI. .^x'l^xvi. Assignment of a Lease by Indorsement. Lease {by Know all Men That (assignor) of &:c. for and in consideration of the sum of &c. to him by (assignee) of &:c. paid at or before &c. the receipt &c. Doth assign to the said (assignee) his execu- tors &c. All and singular the premises comprised in the within written indenture and thereby demised to A. B. with their ap- purtenances together with the within written indenture of lease And all the estate &c. of him the said (assignor) of in or to the said premises or any part thereof by virtue of the said indenture of lease To have kc. the said messuage &c. and all and singular other the premises hereby assigned with their appurtenances unto the said (assignee) his executors &c. for and during all the residue and remainder yet to come &c. Subject and without prejudice to the rents covenants and conditions in and by the within writ- ten indenture of lease reserved and contained and which on the tenant's or lessee's part ought to be paid and performed [add covenants from, the Assignor and Assignee, as in last precedent.] NcCLXXXVII. ^^^N«^^„ Assignment of a Lease by Indorsement by an Administrator with By Indorsement Consent of the Lessor. Administrator. Know all Men by these Presents That (administrator) of &c. administrator of all and singular the goods chattels rights and credits of the within named (intestate) deceased and in conside- ration of the sum of £ of lawful money &:c. to him paid by (assignee) of &c. at or before &c. the receipt &c. [see General Precedent, ante, p. 389] Doth by and with the consent of the within named (lessor) testified by his executing these presents assign transfer and set over unto the said (assignee) his executors administrators and assigns All that &cc. and premises comprised in the within written indenture and thereby demised with their and every of their appurtenances together with the within written indenture of lease and all the estate right title and interest which he the said (administrator) as administrator of the said (intestate) as aforesaid or otherwise now hath or at any time hereafter shall or may have claim challenge or demand "of in or to all or any of the said premises with their and every of their 394 ASSIGNMExNTS. No. appurtenances by virtue of the within written indenture of lease or otherwise as the administrator of the said (w2^f5^f//e) To have By Indorsement i n i • i i .1 btj and to hold the said messuage &c. and all and smgular other the A dministrator. pj,gj^^jggg hereby assigned with their and every of their appurte- nances unto the said {assignee) his executors administrators and assigns for and during all the rest residue and remainder yet to come and unexpired of the within mentioned term of years in as full ample and beneficial a manner to all intents and purposes whatsoever as he the said {administrator) as adminis- trator might or could in any manner have held and enjoyed the same if these presents had not been made Subject to the payment of the yearly rent of £ in and by the within indenture of lease reserved and henceforth to become due and payable and to all and every the covenants conditions and agreements therein contained which on the tenant's part ought to be observed and performed And the said {administrator) for himself his heirs exe- cutors and administrators doth hereby covenant and declare to and with the said {assignor) his executors administrators and assigns that he the said {administrator) hath not at any time heretofore made done committed or executed or knowingly or willingly permitted or suifered or omitted any act deed matter or thing whatsoever whereby or by reason or means whereof the said messuages and premises hereby assigned or intended so to be are is can or shall be in any ways impeached charged affected or incumbered in title term estate or otherwise how- soever And the said {administrator) doth hereby further cove- nant &c. [Covenant for further assurance, see ante, p. 391; Covenant by Assignee, see ante, pp. 391, 392.] In witness &c. No. CLXXXVIII. Parts of Leasehold Premises. No. CLXXXVIII. Assignment of certain Parts of Leasehold Premises {of which a Partition had been made) to one of the Parties entitled thereto in severalty, subject to a proportionate Part of reserved Rents, Src Ohs. Where different parties occupy different portions of land under the same lease, and are all equally liable to the whole rent and the performance of the covenants in the lease, it is usual for them to enter into cross covenants to indemnify each other, which will accompany the deed, in which case it is like the following precedent, but the object may be effected in different ways, see further Covenants, Leases. ASSIGNMENTS. 395 This Indenture made &c. Between W. P. of &c. and others of No. the first part H. A. and others of the second part and I. R. of &c. ^ ' of the third part Whereas by indenture of lease bearing date Leasehold kc. and expressed to be made between I.D. of the first part and r enmes. the said W. P. and others of the second part It is icitnessed that Recital of lease, for the considerations therein expressed the said I. D. did demise lease and to farm let unto the several persons parties thereto of the second part their executors and administrators All &c. To have and to hold the same unto the several persons parties thereto of the second part and their executors &c. from the day of then last past for the term of years and months wanting six days subject to the clear yearly rent of £ for the first three years of the said term and the clear yearly rent of £ for the remainder of the said term and to the observance and performance of the covenants and agreements therein con- tained and on the tenant and lessee's part to be paid observed and performed And whereas the said pieces and parcels of land Division of de- mentioned and demised by the indenture hereinbefore recited else's. '^'^^" were some time since divided into thirty-six lots which are laid down and delineated in the plan or ground plot thereof drawn in the margin of these presents and a messuage and dwelling- house and offices have been erected and built upon each of the lots in the said plan or ground-plot distinguished by the num- bers And whereas the said pieces or parcels of land and the messuas;e &c. which have been so erected as aforesaid are now vested in the said W. P. &c. for the residue of the said term of Upon trust for the several persons parties hereto of the second part and the said I. R. as they the said W. P. &:c. do hereby admit and acknowledge And whereas the several Agreement by 1 /• 1 1 1 ii -ITT* parties of the persons parties hereto or the second part and the said 1. K. second part so lately determined to make a partition of and to divide in seve- tomakeapar- ... . , tition. ralty between themselves the said pieces &c. and the said mes- suages so erected and built as aforesaid And whereas such Partition made, partition or division hath accordingly been made by and between the said parties and it hath been agreed that the pieces &c. of land hereinafter described and also assigned or intended so to be with their appurtenances shall be taken and occupied by and assigned to the said 1. R. as and for his part and share in severalty of and in all and singular the said premises subject nevertheless to the payment of £ as a pro|)ortionate jiart of the said rent of reserved by the said indenture of lease hereinbefore recited and to the observance and perfoimaiice uf 396 ASSIGNMENTS. No. CLXXXVIII. Parts of Leasehold Premises. Testatum. Habendum. the covenants reserved and contained in and by the said inden- ture of lease and on the tenant's or lessee's part to be paid ob- served and performed Now this Indenture witnesseth That in pursuance of and for effectuating the said recited agreement they the said W. P. &;c. according to their several and respective estates rights and interests in the premises but not further or otherwise and at the request and by the direction of the said several persons parties hereto of the second pait testified by their severally executing these presents Do and each of them doth assign And the said several persons parties hereto of the second part according to their respective estates &c. Do and each of them doth assign and confirm unto the said I. R. his exe- cutors administrators and assigns All those several lots pieces or parcels of land and premises delineated on the said plan or ground plot drawn in the margin of these premises distinguished by the number with their and every of their rights mem- bers and appurtenances And all ways &c. A?id all the estate &c. To have and to hold the said lots &:c. and all and singular other the premises hereby assigned or intended so to be and every part and parcel of the same with their appurtenances unto the said I. R. his executors administrators and assigns from henceforth for and during all the residue and remainder of the said term of &c. therein now to come and unexpired Subject nevertheless to the payment of the yearly rent of £ as a proportionate part of the said rent of £ reserved by the said indenture And subject also to the observance and perform- ance of the covenants and agreements in the said indenture of lease contained and which on the tenant's or lessee's part are or ought to be from henceforth observed and performed And the said several persons and parties hereto of the first and second parts [covenant that they have done no act to incumber, see ante, p. 394] And the said I. R. doth hereby &c. [covenant to pay proportion of rent and performance of the covenants, ante, pp. 391, 392] In witness &c. No. No. CLXXXIX. CLXXXJX. Money. Assignment of Monies by way of collateral Security. This Indenture &:c. Between (assignor) of &c. of the one part and {assignees) trustees under the marriage settlement of the said Settlement of {assignor) of the other part Whei-eas by an indenture bearing wife's propertyv ASSIGNMENTS. 397 date &c. and made between the said (assig7io7') of the first part ^^^^^^^ {Intended wife) of Sec. spinster of the second part and the said ^/^^.y. (trustees) of the third part being a settlement made previously to and in consideration of the marriage then intended and shortly afterwards solemnized between the said (assignor) and the said {I. W.) after reciting among other things that the said (/. W.) was possessed of or entitled to various outstanding debts due to her and also a tontine annuity &c. It was witnessed That the said (/. W.) with the privily of the said (assignor) assigned unto the said (T.) All and singular the debts &c. To hold the pre- mises unto the said (trustees) their executors &:c. Upon trust after the solemnization of the said marriage to pay the dividends &c. to such persons and in such manner as she the said (/. W.) should durino- her life notwithstanding her coverture direct or appoint and in default of appointment to pay the same into the hands of the said (/. W.) for her separate use during her life and after her decease Upon trust to pay all such dividends and Trusts of the interest to the said (assignor) during his life And after his ^'^ decease In trust for the children of the said intended marriage in manner therein mentioned And whereas by an indenture bear- Annuity par- ing date &c. and made between (grantor) therein described of fi^g^^rust estate, the first part the said (assignor) of the second part and the said (T.) of the third part In consideration of the sum of £ paid by the said (T.) to the said (G.) he the said (G.) granted unto the said (assignor) during the joint natural lives of the said (G.) and the said (assignor) and the life of the longest liver of them one annuity or clear yearly sum of £ chargeable upon all the messuages lands and hereditaments of him the said (6r.) situate &c. Subject to redemption on payment of the sum of £ in maimer therein mentioned which annuity was purchased by the said (assignor) with certain of the monies which by the said settlement were assigned to the said ( T.) And whereas the said Bond given by ,. . •• 1 • liPi tlie assignor. (assignor) by bond or &c. m writmg bearmg date &c. became bound to the said (7".) for the payment of £ lent to him by them by and out of the said trust estate and which said sum is still due and owing to the said (T.) by the said (assignor) And Death of wife. whereas the said M. (assignor's wije) departed this life leaving the said (assignor) her husband and two children namely E. G. of the age of &:c. and W. G. of the age of &c. or thereabouts her surviving and upon the decease of the said (u-ife) the said ■ (assignor) became entitled to receive for his lifl^j the said interest dividends &:c. And whereas the said (assignor) hath received 398 ASSIGNMENTS. Covenant to pay. No. from the said (G.) in redemption of his aforesaid annuity the CLXXXIX ... said sum of £ for which the said (assignor) became account- Money. r ^ • ^ ^ A 1 '■ able to the said ( T.) as the trustees ot the said settlement And Warrant of at- ^./^^y.^^^^ ^lie said {assignor) hath agreed to secure the payment to the said ( T.) of the said sum of £ And in part performance of his agreement hath by his warrant of attorney bearing date &c. authorized certain attornies of her Majesty's Court of at Westminster to confess judgment against him in or as of term last term next or some subsequent term at the suit of the said trustees for the sum of £ Now this Indenture witnesseth That in pursuance and further performance of the said agreement he the said (assignor) for himself his heirs &:c. doth covenant with the said (T.) their executors (fee. in manner following (that is to say) That he the said (assignor) will pay or cause to be paid unto the said (T,) or the survivor of them or the executors &:c. of such survivor the said sum of £ at or upon the day of next without any deduction or abatement whatsoever And the said (assignor) doth hereby expressly direct authorize and empower the said (T.) or the survivor &c. to receive the said sums of £ and £ and also all interest dividends and annual or other proceeds of the before mentioned trust monies stocks funds and securities comprised in and subject to the trusts of the before recited indenture of settlement and to which he the said (assignor) is entitled for his life and from time to time when and as the same shall be received after full payment and discharge of all costs charges and expenses incurred and to be incurred in and about the execution of the aforesaid trusts to lay out or invest the residue thereof in the names of the said (T.) or the trustees or the trustee for the time being at interest until the same shall amount to the said sum of £ or so much thereof as he the said (assignor) shall contrary to his aforesaid covenant fail to Trustees not to make up and pay as hereinbefore mentioned Provided that be answerable. j^Q^j^jj^g herein contained shall obhge or require the said (T.) their executors &c. to sue or even apply for the payment of the said sum of £ or any part thereof nor shall they the said ( T.) or any or either of them be in anywise answerable for any more money or monies than they shall respectively actually Assignornotto receive ^nc? the said (assignor) for himself his executors and administrators doth hereby covenant with the said (T.) their executors administrators and assigns that he the said (assignor) shall not nor will at any time or times hereafter take receive release or discharge any part of the said trust m-onies and pre- receive trust estate. ASSIGNMENTS. 399 mises without the consent in writing; of the said (7".) first had '~^^^*'^,^ and obtained for that purpose And that he the said (assignor) 'ij],'^^^/ ' shall and will from time to time and at all times make do and '■ execute or cause to be made done and executed all and every such further and other lawful acts deeds assignments and as- surances in the law whatsoever for the further better more per- fectly and satisfactorily assuring the said sum or sums interest dividends and premises unto the said {T.) their executors admi- nistrators and assigns and for the further and more effectually enabling them to recover receive and dispose of the same In trust as aforesaid in such manner and form as by the said {T.) their executors administrators and assigns or their or any of their counsel in the law shall be reasonably devised advised or required And further that the said {msiynor) his executors Indemnity to administrators and assigns shall and will from time to time and at all times hereafter well and sufficiently save defend keep harmless and indemnify them the said {T.) each and every of them and each and every of their executors administrators and assigns and their each and every of their goods chattels lands and tenements of from and against all costs losses damages and expenses which they or either of them shall or may suffer sustain or be put unto for or by reason or means of their or either of their acts in or about the execution of the trusts of the said in part recited indenture of settlement or of having permitted or suffered any part of the said trust estate to be received by the said {assignor) contrary to the strict meaning of the said trusts or of any sums of money being due or owing by him the said (assignor) to the said trust estate or otherwise in relation thereto or to the trusts created by the said in part recited indenture of settlement And lastly that he the said (assignor) his heirs execu- tors or administrators shall and will within six months after each of the said two sons E. and W. of the said (assignor) shall attain his age of twenty-one procure from him and deliver to the said ( T.) or the survivor of them or the executors or administrators of such survivor their or his assigns a full and complete release and in- demnity in respect of the said trust premises and his claims under the said settlement Provided that nothing therein contained shall extend to injure or affect the interests of the said R. and W. or either of them in and to such parts of the said trust funds as shall then actually remain vested in the said (T.) or (fee. And further it is hereby expressly declared and agreed by and between the said parties that they the said (T.) and 400 ASSIGNMENTS. No. CLXXXIX. Money. the survivor of them and the executors or administrators of such survivor their or his assigns shall and w^ill stand possessed of and interested in the stocks and securities to be purchased with the said sum of £ hereinbefore covenanted to be paid by the said {assignor) as aforesaid or in default of such payment in the interest dividends and annual proceeds herein- before directed to be received upon such and the same trusts and subject to such and the same powers provisoes declarations and appointments as the same are or ought to be subject or liable to under or by virtue of the said in part recited indenture of settlement In witness kc. No. CXC. Money. Recitals. Testatum, Habendum. Proviso to make assign- ment void. No. CXC. Assignment of a Sum of Money hy way of Security for the Payment of another Sum. Tliis Indenture made &:c. Between (assi^wor) of &c. of the one part and {assignee) of &c. of the other part Whereas by indenture (fee. [recite settlement giving power of appointment to husband and wife'] And whereas [recite appointment of &)C. by the husband at his decease to the assignor his son] Now this Indenture witnesseth That in consideration of £ to the said {assignor) paid by the said {assignee) the receipt &c. He the said {assignor) Doth assign unto the said {assignee) his executors &c. All that the sum of £ so given and appointed unto the said {as- signor) as hereinbefore mentioned and all the estate right title interest property possibility claim and demand whatsoever both at law and in equity or otherwise howsoever of him the said {assignor) of in to out of or upon the premises hereby assigned or any part thereof respectively with full power and authority to and for the said {assignee) his executors administrators and assigns &c. [see Assignment of a Debt, ante, p. 368] To have Sec. the said sum of £ and all and singular other the premises hereby assigned unto the said {assignee) his executors administrators and assigns Subject nevertheless to the proviso or condition herein- after mentioned Provided ahcays and it is hereby agreed and and declared that if the said {assignor) his executors or adminis- trators do and shall on the day of next pay unto the said {assignee) his executors &:c. the sum of £ with ASSIGNMENTS. 401 interest for the same in the meantime at the rate of £ No. cxc. per cent, per annum without any deduction then the said (as- Money . shjnee) his executors administrators or assigns shall at any time thereafter upon the request and at the cost of the said {assiynor) his executors administrators or assigns re-assign the said pre- mises hereby assigned or intended so to be unto the said {as- siynor) his executors administrators and assigns And the said Covenant to (assignor) for himself his executors and administrators doth ^^^' hereby covenant with the said {assignee) his executors adminis- trators and assigns in manner following (that is to say) That he the said (assignor) his executors or administrators shall and will pay unto the said {assignee) his executors administrators and assigns the said sum of £ with interest after the rate aforesaid at or before the end of twelve calendar months from the date hereof And also that he the said {assignor) hath not No act to in- done &c. any act to incumber [see ante, p. 369] And that he now hath in himself good right and full power to assign assign. " the said sum and the premises hereby assigned or intended so to be unto the said {assignee) his executors administrators and assigns in manner aforesaid And further That he the said Further as- (assignor) his executors and administrators and all other persons ^"'^"^ • claiming or to claim any right title or interest of and in the said sura of £ or any part thereof by from under or in trust for him the said (assignor) his executors and administrators shall and will at all times hereafter upon every request of the said (assignee) his executors administrators and assigns but at the costs and charges of the said (assignor) his executors and admi- nistrators do make and execute all such further assignments and assurances for more perfectly and absolutely assigning and as- suring the said sum of £ unto the said (assignee) his exe- cutors administrators and assigns as by him and them or his or their counsel in the law shall be advised and required P.ovided Power of sale. always and it is hereby declared and agreed that if default shall be made in payment of the said sum of £ and interest or any part thereof contrary to the proviso and covenant herein- before contained it shall be lawful for the said (assignee) his executors administrators or assigns after the expiration of twelve calendar months from the date hereof absolutely to sell and dis- pose of the said sum of £ and premises hereby assigned freed from the ])roviso for redemption hereinbefore contained and all other ecpiity of redemption whatsuever by public auction or private contract altogether or in ])arcels subject to such con- VOL. I. * D li 402 ASSIGNMENTS, No. CXC. ditions and generally in such manner as he the said {assignee) Money. }^ig executors &c. shall think proper And to assign and assure the said sum and premises or any part or parts thereof when sold unto the purchaser or purchasers thereof as he or they shall appoint And to receive the purchase money for the same and thereout in the first place to pay the costs of such sale or sales and all other costs incident thereto and in the next place to satisfy the said sum of £ and interest hereby secured or such part thereof as shall then remain due And lastly after the payments aforesaid to pay over the ultimate residue to the said {assignor) his executors administrators or assigns Provided also and it is hereby further declared that any receipt or receipts which shall be given by the said (assignee) his executors administrators and assigns for any monies received under the power aforesaid shall be a legal and sufficient discharge or legal and sufficient dis- charges to the person or persons paying the same and fully release the said person or persons respectively from all obli- gation of seeing to the application of the said money and from all liability by reason of the misapplication or nonapplication thereof or any part thereof And that the purchaser or pur- chasers shall not be obliged to inquire whether default shall have been made in payment of the said sum of £ and interest or any part thereof contrary to the proviso or covenant herein- before contained In witness &c. Assignment of a Mortgage, see post, Mortgages. Assignment of a llortgage Term, and the Money due thereon, subject to the Trust to he declared hy a Marriage Settlement, see post, Settlement. No. CXCI. No. CXCI. Mortgage. Assignment of a Mortgage from the Executors of a Mortgagee to a Person advancing the Money where the Mortgagor is not a Party. Concurrence of Obs. 1. An assignment of a mortgage is in reality the assignment rno'^'g^sor why ^f ^ jgbt^ jij^t debt being collaterally secured by a cliarge upon a real estate, Mattheivs v. Walwyn, 4 Ves. 118. A mortgagee may assign necessary. ASSIGNMENTS. 403 without the mortgagor being a party, Newport's Case, Skinn. 483 ; No. CXCI. but the safer course is, tliat the mortgagor should join in the transfer Mor tgage. and acknowledge that the money is due. If an assignee pay arrears of interest it will not be considered pHncipal, and bear interest, unless the mortgagor concur in the assignment, Earl of Macclesfield v. Fitton, 1 Vern. 1G9; Smith v. Pemherton, 1 Ch. Cas. 68; Acken- hurst V. Jamex, 3 Atk. 271. 2. By the 13 & 14 Vict. c. 97, any transfer, assignment or dispo- sition of any mortgage or other security, provided no further sum of money be added to the principal money or stock already secured, if such principal money or stock already secured shall not exceed 1,400/., the same duty as on a mortgage for the total amount of such principal mone}' or stock; and if such principal money or stock should exceed in value 1,400/., then 1/. 15s., and a further progressive duty. This Indenture made &c. Between (assignors) executors of A. B. late of (Sec. deceased of the one part and {assignee) of &c. of the other part Whereas by an indenture bearing date the day of and made between {mortgagor) therein described of the one part and the said A. B. deceased of the other part It is witnessed That in consideration of the sum of £ to him the said {mortgagor) paid by the said A. B. he the said {mortgagor) did grant and demise unto the said A, B. his executors &:c. {inter alia) All those the messuages &c {parcels) To hold the same unto the said A. B. his executors administrators and assigns from the day of then last past for the term of years under the yearly rent of a peppercorn Subject nevertheless to a proviso therein contained for redemption upon payment by the said {mort- gagor) to the said A. B. of the sum of £ and interest on the days and times and in manner therein mentioned And whereas [recite bond given by mortgagor and testator's will appointing exe- cutors and probate thereof] And whereas the said principal sum Mortgage of £ is still due and owing unto them the said (assignors) "^""''y ^tiii => _ . . unpaid. as executors aforesaid upon or by virtue of the said recited secu- rities with an arrear of interest amounting to the sum of £ And whereas the said executors having occasion for the said principal money and interest due to them as aforesaid the said {assignee) hath at their request agreed to pay them the sum of £ upon having an assignment of the said principal sum of £ and interest due and to grow due thereon and of the said mortgaged hereditaments in manner hereinafter mentioned JVow this Indenture witnesseth That in pursuance of the said Testatum, agreement and in consideration of the sum of £ by DD 2 404 ASSIGNMENTS. No. CXCI. the said {assignee) to the said (assignors) as executors as afore- Mortgage. gg^jfj p^id at or before the sealinc; and dehvery of these presents in full of all principal money and interest now due and owing to them as executors as aforesaid upon or by virtue of the said se- curities the receipt whereof they the said (assignors) and each of them do and doth hereby acknowledge and of and from the same and every part thereof do and each of them doth hereby acquit release and discharge the said (assignee) his heirs executors ad- ministrators and assigns for ever They the said (assignors) do and each of them doth by these presents assign unto the said (assignee) his executors administrators and assigns all that the said sum of £ so due and owing to them as executors as aforesaid and secured by the hereinbefore in part recited indenture of demise and bond And all money now due or which from henceforth shall grow due by way of interest for or on account of the said principal sum of £ and the full benefit of the said recited bond and all other securities for the said sum of £ and interest And all the estate right title interest property claim and demand whatsoever of them the said (assign- ors) and each of them of into or out of the same premises and every part thereof [Together with full power and authority to ask demand sue for recover and receive and give effectual re- ceipts and discharges for the said monies hereinbefore assigned or any part thereof in the names of the said (assignors) or any of them their or any of their executors or administrators] To have hold receive and take the said principal monies and interest and all and singular other the premises hereinbefore assigned unto the said (assignee) his executors administrators and assigns for his and their own use and benefit [A power of attorney is frequently added in lieu of the above words, in brackets as fol- Power of lows'] And in consideration of the premises the said (assignors) attorney. ^^ ^^^ ^^^j^ ^^ them doth by these presents appoint the said (assignee) his executors administrators and assigns to be the attorney and attornies of the said (assignors) and each of them their and his executors and administrators to demand recover and receive the principal money and interest hereby assigned or intended so to be and to give receipts and other discharges for the same respectively And on nonpayment thereof or any part thereof respectively in their or his names or name but at the risk and cost of the said (assignee) his executors administrators or assigns to bring commence carry on and prosecute any action suit or other proceeding for compelling payment thereof and ASSIGNMENTS. 405 generally to execute and perform any other act deed or thing No. cxci. relative to the premises as fully as they the said (asslf/nors) their ^^ortgage. executors or administrators might or could have done in their or his own persons or person in case these presents had not been executed and to appoint a substitute or substitutes for all or any of the purposes aforesaid And whatsoever the said {assignee) his executors or administrators or his or their substitute or substitutes shall lawfully do in the premises the said {assignors) do hereby for themselves respectively and their respective heirs executors and administrators and not one for the other of them or the heirs executors or administrators of the other of them severally covenant and agree with the said {assignee) his executors or administrators to allow and confirm Ayid this Indentnre also wifnesseth That in further pursuance of the said agreement and for the considerations aforesaid they the said {assignors) do and each of them doth by these presents assign unto the said {as- signee) his executors administrators and assigns all and singular the messuages lands tenements and hereditaments comprised in and demised by the said indenture of the day of as hereinbefore is mentioned with their rights easements and appur- tenances And all the estate right title interest term of years property claim and demand whatsoever of them the s?L\d[assignors) or either of them of in to out of or upon the same premises or any part thereof To have and to hold the said messuages lands tenements hereditaments and premises hereby assigned or intended so to be unto the said {assignee) his executors adminis- trators and assigns for all the residue now to come of the said term of years subject to such right and equity of re- demyjtion as is now subsisting in the same premises And each Covenant by of them the said {assignors) separately and apart from each agams"hicum- other and so far only as concerns his own acts deeds and de- brances. faults doth hereby for himself his heirs executors and adminis- trators covenant with the said {assignee) his executors administra- tors and assigns that they the said {assignors) have not nor hath either of them at any time heretofore made done or executed or knowingly or willingly permitted or suffered or been parties or j)arty or privy to any act deed or thing whereby or by reason or means whereof they are in anywise prevented or hindered from assigning the said sum of £ and the interest duv. and to become due thereon or any part thereof \mto the said {assignee) his executors administrators and assigns in manner aforesaid or whereby or by reason or means whereof the said messuages and premises hereby assigned or intended so to l)e 406 ASSIGNMENTS. No. CXCI. or any of them or part thereof are or is can shall or may Mortgage. j^g impeached charged affected or incumbered in title estate or Covenant by Otherwise howsoever [ When the precedvig power of attorney assignee to in- ^^ inserted, the foUoivinq covenant is nsualh/ added 1 And the demnity. ^ J J •' -i said {assignee) doth hereby for himself his heirs executors and ad- ministrators covenant with the said {assignors) their executors and administrators That he the said {assignee) his heirs executors or administrators will at all times hereafter save harmless and keep indemnified the said (assignors) and each of them their and each of their executors and administrators and their and each of their lands and tenements goods and chattels from and against all and all manner of costs damages losses and expenses what- soever which shall or may at any time hereafter be paid or sus- tained by them or either of them for or by reason of any action or actions or suit or suits which shall or may be brought or prosecuted in the names or name of the said {assignors) or either of them their or either of their executors or administrators under or by virtue of the power or authority hereinbefore contained in that behalf or in any manner relating thereto In witness &c . ASSIGNMENTS OF PATENTS. 1. Law of Patents. 3. Stamp. 2. Covenants in Assignments. Law of patents. Sect. 1. By the 21 Jac. 1, against monopolies, a power is reserved to the crown, in sect. 6, of granting a royal patent of privilege to the true and first inventor of any new manufacture for the sole working or making such manufacture for the space of fourteen years, by virtue whereof a property becomes vested in the patentee, which passes to his executors, and is assignable as any other personal chattel, except that, by one clause of the statute, no assignment of a patent can be made to more than five persons, which provision is now abolished, see 15 & 16 Vict. c. 83. See Coryton on Patents ; 2 Davidson's Conv. pp. 117—127, 451—455, 2nd ed. Covenants in 2. In an assignment of this nature, the covenants must be so qua- assignments. \^^q{{ ^y xhe usual words, '' notwithstanding anything by him done to the contrary," as to restrict them to the acts of the assignor. This is of particular importance where the vendor is himself an assignee. It has been held, that a covenant in such an assignment for absolute ASSIGNMENTS. 407 right to convey is not restrained by the other parts of the deed, Ilex^e Patents. V. Stevenson, 3 B. & P. 565. It is said that in ordinary practice the covenants in assii^nments of letters patent are usually absolute and not qualified, 2 Davidson's Conv. p. 455, 2nd ed. 3. As to the stamp, see ante, Assignments, Pref. sect. 9, a?ite, stamp, p. 347. No. CXCII. No. CXCII. Assignment of Shares in a Patent. Patent. TJiis Indenture made (fee. Between {assignor) of &c. of the one part and (assignee) of &c. of the other part Wliereas by certain Recital of let- letters patent bearing date the &c. and duly enrolled in the High '^'^^ Patent. Court of Chancery (a) her present Majesty Did give and grant unto M. K. his executors administrators and assions the sole privilege of making paper from straw &:c. for the term of 14 years and for the respective places in the said letters patent with a prohibition to all persons whatsoever other than the said M. K. his agents and assigns to use the said invention And ichereas Assignment to by indenture bearing date the day of and made be- ''"'''S"'"^- tween the said M. K. of the one part and the said {assignor) of the other part For the consideration therein mentioned the said M. K. did grant unto the said {assignor) certain parts or shares of and in the said letters patent To hold to him the said {assignor) his executors &;c. for and during the then residue of the said term of 14 years And whereas the said {assignee) hath Contract for contracted with the said {assignor) for the sale to him of the said si*i|^iee. '^' shares in the said letters patent for the price or sum of £ Now this Indenture witnesselk That for and in consideration of the sura of £ of lawful money of Great Britain to the said {assignor) paid by the said {assignee) at &c. the receipt &c. He the said {assignor) Doth by these presents assign unto the said {assignee) All tliose the said parts or shares of and in the said letters patent And all the right title and interest of him the said {assignor) of in and to the said parts and shares of and in the said letters patent To have and to hold the said parts and shares of and in the said letters patent with all benefit and advantage to arise therefrom unto the said {assignee) his executors administrators and assigns in as full ample and beneficial a manner as he the said {assignor) by virtue of the said letters patent and the said (a) Lcttprs patont granted affer tlie 1st October, 1852, do not require eu- rolriient, see 15 & IG Vict. c. 83, s. 27. 408 ASSIGNMENTS. No. CXCII. Patent. Good right to assign shares. Quiet enjoy- ment. Further as- surance. in part recited indenture of assignment might have had or held the same if these presents had not been made for and dining all the rest and residue of the said term of 14 years And the (as- signor) doth hereby for himself his heirs executors and admi- nistrators covenant with the said (assignee) his executors admi- nistrators and assigns in manner following (that is to say) That for and notwithstanding (a) any act matter or thing to the con- trary by him done or suffered he the said (assignor) now hath good right full power and absolute authority to assign and con- vey the said parts or shares of and in the said letters patent And that he hath not by any means directly or indi- rectly forfeited any right which he ever had or might have had to the said parts or shares And that he the said (assignee) his executors administrators and assigns shall and may by virtue of these presents have receive and take all the profits and advan- tap-es whatsoever that shall or may arise from the same parts or shares without any interruption claim or demand by or from the said (assignor) his executors administrators and assigns or any other persons claiming under or in trust for him or them And also that he the said (assignor) his executors and administrators and all other persons claiming any right or interest to or in the said parts or shares hereby assigned or intended so to be under or in trust for him or them shall at all times hereafter at the request costs and charoes of the said (assignee) do make and execute all such acts deeds and assurances for more effectually assigning and as- suring the said parts or shares hereby assigned or intended so to be unto the said (assignee) his executors administrators and assio'ns as by him or them or his or their counsel in the law shall be reasonably devised advised or required In witness &c. ASSIGNMENT OF PEWS. 1. Right to Pews hy Prescription \ 2. How defended, or FacultTj, | Right to pews Sect. 1. The right to sit in a particular pew in a church arises by°prescription either from prescription, as appendant to a messuage, or from a faculty or faculty. ^^_ ^^_^^^ ^^.^^^ ^j^^ Ordinary, for he has the disposition of all pews which are not claimed by prescription, Gibs. Cod. 2-21. No tide can (a) See Sect. 2, p. iOG. ASSIGNMENTS. 409 be j^ood to a pew, either iipon prescription or upon any new grant Petos. from the ordinary, to a man and his heirs, for the pew will always tjo with the house to him that inhahits it, 1 Burn's Ecc, Law, 360 ; Stoclts V. Booth, 1 T. R. 432. By the general law of common right, all pews belong to the parishionei-s at large, but the distribution of seats among them rests with the ordinary, whose officei-s, the churchwardens, must place the parishioners according to their rank and station, but suhject to the appi-obation of the ordinary. The incumbent has no authority in seating and arraying his parishioners, except as a member of the vestry, nor are the churchwardens bound to follow the directions of the vestry, Pettman v. Bridijer, 1 Phill. 3-22. Persons having pews appurtenant to their houses cannot let them to non-resident persons, and thus by contract defeat the general right of the parish, Walter v. Garner, \ Hagg. 317—319. See Shelford's Real Prop. Stat. pp. 107-112, Gth ed. 2. In an action against the ordinary, the plaintiff must allege and How defended, prove repairs of the pew. If any repairs have been required within memory, they must be proved to have been made at the expense of the party setting up a p.-escriptive right. Mere occupancy does not annex pews to particular houses, 1 Wils. 326. A possessory right is not good against the churchwardens and the ordinary, but is sufficient to maintain a suit against a mere disturber, Pettman v. Bridger, ub. sup. No. CXCIII. No.cxciii. Assignment of a Pew. Pews. This Indenture &c. Betv^^een {Assignor) of &c. of the one part and {Assignee) of &c. of the other pait Witnesseth That for and Testatum. in consideration of the sum of £ to &c. by &c. He the said {assignor) doth by these presents assign unto the said (assignee) his executors &c. All that pew^ situate &c. and numbered as heretofore was occupied by the said {assignor) and his family And all the estate &c. To have &c. the said pew and all other Habendum, the premises hereby assigned or intended so to be To the intent that the said {assignee) and his family shall and may from hence- forth at all times hereafter peaceably and quietly enter into have use and occupy the said pew for all such uses and |)urposes as are customary in attending divine service And the said (assignor) Covenants from doth for himself &c. covenant &c. that it shall and may be law lid "^^^"'^^^ i'nr the said (assignee) peaceably and quietly to hokl and enjoy ment, &c. the said pew hereby assigned or intended so to be without the 410 ASSIGNMENTS. No. CXCIII. Pews. Power of attor- ney. Not to revoke. Covenant from assignee to pay dues, &c. and indemnify assignor. let hindrance or disturbance of the said (assignor) or his family or his or their heirs executors administrators or assigns or any person or persons lawfully claiming or to claim the same or any sitting therein by from or under them or any of them And for the better securing to the said {assignee) the full and free benefit of the said pew and premises he the said {assignor) Doth hereby make con- stitute and appoint A. B. one of the proctors of the ecclesiastical court at to appear for him the said {assignor) in the said court or elsewhere on his behalf but at the costs and charges of the said {assignee) to give and acknowledge his consent and approbation and direction for confirming the said pew to the aforesaid {assignee) and his family or otherwise according to the practice of the said court he ratifying and confirming whatsoever the said A. B. or other proctor of the said court shall as proctor or attorney for the said {assignor) lawfully do or cause &c. in the premises And further the said {assignor) promises declares and agrees not to revoke annul or defeat these presents or any autho- rity hereby given to the said proctor but from time to time to confirm and estabhsh the same And the said {assignee) doth hereby for himself his executors &c. covenant &c. that he the said {assignee) his executors &c. shall and will well and truly pay all dues rates and contributions which may be hereafter lawfully made and demanded for and concerning the said pew And do and perform all needful repairs decorations and improvements whatsoever at his own costs and charges, and wholly indemnify the said {assignor) his heirs executors and administrators there- from In witness &c. ASSIGNMENTS OF POLICIES OF INSURANCE. 1. Policies assignable. 2. Life Insurance, what. 3. Life Insurances void, when. Sums on Policies not upportion- able. Policies as- signable. Sect. 1. Policies of insurance, although choses'in action, may be assio-ned at law as well as in equity, Delany v. Stoddart, 1 T. R. 26. Such assio-nments are for the most part inserted in other deeds ; but where a policy is assigned by way of mortgage, and in some other cases, a separate deed is most convenient. ASSIGNMENTS. 411 2. A policy for the insurance of a life is a contract to pay a certain 0/ Policies. Sinn in the event of death ; it is not a contract of indemnity as a policy of ^jf^ insurance marine or fire insurance is, Dalby v. India, <^c. Assurance Company, wliat. 15 C. B. 392 ; 4 De G. & S. .462, oven-uling Godsall v. Boldero, 9 East, 72. 3. By the 14 Geo. 3, c. 48, any insurance made on the life or Life insurances lives of any persons wherein the persons for whose use or on whose ^'^^'^^ ^^ '*^"" account the policy is effected shall have no interest, is void. Every man has an insurable interest in bis own life, Wainwright v. Bland, 1 M. & Rob. 481, but to support an assurance on the life of another, the interest must be pecuniary as that of a creditor in the life of his debtor, Von Lindenau v. Desburough, 8 B. & C. 56; Morland v. Isaac, 20 Beav. 389, or that of a surety in the life of his principal. Lea v. Ilinton, 19 Beav. 324. The assignee of a chose in action of a mar- ried woman has an insurable interest in her life, Henson v. Blackwell, 4 Hare, 442. And it has been held under the above statute, that a policy of insurance effected by a father on the life of his son is void, he hav- ing no pecuniary interest therein, Malford v. Kymer, 10 B. & C. 724. As to the insurance of the expectancy of an heir or next of kin of a party living, see Lucena v. Crawford, 2 B. & P. 324 ; Cooke V. FieU,Vd L, J., Q. B. 441. 4. Annual sums payable on any policy of insurance are not subject Sums on poli- to the law of apportionment by 4 & 5 Will. 4, c. 32, s. 3. donabk."*^^"" No. CXCIV. j^^ cxciv. Assignment of a Policy of Insurance on a Ship hy an Executor. Policies of Obs. The 6 Geo. 1 , c. 18, which limited the privilege of granting policies of insurance upon ships and goods to the Royal Exchange and London Assurances, is so far repealed by 5 Geo. 4, c. 114, as to make it lawful for other corporate bodies to make such policies. To all &c. (assignor) of &c. executor of the last will and testament of A. B. deceased sendeth oreetino- Whereas the Recital of said A. B. by a certain writing or policy of insurance granted P""'^)'- by the Insurance Company bearing date the &c. and numbered under the hands and seals of directors of the said company insured the sum of £ upon the ship or vessel for her voyage from A. to L. And whereas (assignee) of &c. hath agreed with the said (assignor) for an absolute assignment to him of the said policy of insurance for the sum of £ Now these presents witness That for and in (lonsideration of &c. He the said (assignor) doth by these presents assign unto 412 ASSIGNMENTS. Habendum. No. CXCIV. the said (aftsignee) All that the said policy of insurance so effected Policies of \^y }iini the said A. B. deceased and all and every sum or sums Insurance. ", i i i • i i of money recoverable or to be received upon or by virtue of the said policy and all benefit and advantage thereof And all the right title interest property claim and demand whatsoever of him the said {assignor) as executor as aforesaid together with full power and authority to ask &c. [see Assignment of a Debt, ante, p. 368] To have hold receive and take the said policy of insurance and all sums of money recoverable thereon and all and singular other the premises hereby assigned or intended so to be unto the said (assignee) his executors &c. in as full ample and beneficial a manner as he the said (assignor) might or could have done if these presents had not been made And the said (assignor) for himself &c. doth hereby covenant &c. with &:c. the said (assignee) that he the said (assignor) hath done no act matter or thing whereby the said policy of insurance can shall or may be charged or incumbered in any way whatsoever In witness &c. No act to in- cumber. No. CXCV. Policy of Assurance. Kecital of policy. No. CXCV. Assignment of a Policy of Assurance on a Life. This Indenture made &c. Between A. B. of &c. (Vendor) of the one part and C. D. of &:c. (Purchaser) of the other part Whereas by an instrument or policy of assurance bearing date the day of and numbered under the hands and seals of the trustees or directors of the Life Assurance Company the sum of £, is assured to be paid out of the stocks or fiinds of the said company to the executors administrators or assigns of the said A. B. within six calendar months after proof of the death of the said A. B. according to the rules and practice of the said company at or under the Of contract for annual premium of £ And whereas the said A. B. hath contracted for the sale of the said policy and all benefit to be derived therefrom to the said C. D. at or for the price or sum of £, Now this Indenture tritnesseth That in consideration of the sum of £ of lawful money of Great Britain to the said A. B. paid by the said C. D. before the execution of these presents [the receipt ^^c] He the said A. B. doth hereby assign transfer and set over unto the said CD. his executors adminis- sal Assignment of policy. ASSIGNMENTS. 413 trators and assig-ns All that the said pohcy hereinbefore parti- No. CXCV. cularlv mentioned and all and every the bonuses and additions f°'*''y '>J sums and sum of money to become payable or to be received under or by virtue of the same and the full benefit of the same and all the estate title interest property possibility claim and demand whatsoever of the said A. B. of in to out of or upon the same premises and every of them and every part thereof Together Avith full power and authority to ask demand sue for recover and receive and give effectual discharges for the said sums and sum of money and every part thereof in the name or names of the said A. B. his executors or administrators or otherwise 2o have Habendum. hold receive and take the said policy monies and all other the premises hereby assigned or intended so to be unto the said CD. his executors administrators and assigns absolutely for his and their own use And the said A. B. doth hereby for himself his Covenants by heirs executors and administrators covenant with the said CD. his executors administrators and assigns in manner following (that is to say) That for and notwithstanding any act default That policy is deed matter or thing whatsoever by the said A. B. done made executed committed or knowingly or wilfully sufiered to the contrary the said policy of assurance now is a good valid and effectual policy for the sum of £ and in full force unsur- rendered unforfeited and in nowise vitiated or become void or voidable And that the said A. B. now hath good right M\ Right to assign, power and lawful and absolute authority to assign the said policy sums of money and premises hereby expressed to be assigned unto the said C. D. his executors administrators and assigns in manner aforesaid And that the said A. B. will not at any time Not to avoid hereafter do commit or suffer any act default matter or thing ^° ^'^^' whereby or by reason or means whereof the said policy shall or may be vitiated or become void or voidable or whereby or by reason or means whereof the said C D. his executors adminis- trators or assigns shall or may be hindered from recovering or receiving the money intended to be thereby assured or any part thereof And that the said A. B. his executors and administra- Further as- tors and all and every other person and persons whomsoever having or claiming or who shall or may have or claim any estate right title interest property claim or demand whatsoever either at law or in equity in to out of or upon the said policy monies and premises liereby expressed to be assigned or any of them or any part thereof by through under or in trust for him or them shall and will from time to time and at all times hereafter u[)on the request and at the costs and charges of the said C D. surance. 414 No. CXCV. Policy of Assurance. ASSIGNMENTS. his executors administrators or assigns make do and execute or cause and procure to be made done and executed all such further and other lawful acts deeds things devices assignments and as- surances in the law whatsoever in order the further better and more absolutely to assign and assure the said policy monies and premises hereby expressed to be assigned and every part thereof unto the said C. D. his executors administrators or assigns and to enable the said C. D. his executors administrators and assigns to recover receive and obtain payment of the monies intended to be assured by the said policy as by the person or persons making such request his her or their counsel in the law shall be reasonably advised devised and required so that the person or persons required to make or execute any such assur- ance be not for that purpose compelled or compellable to go or travel from his her or their usual place or respective places of abode In witness Sec. Assignment of Policy of Insurance as a Security for Money, see post, Mortgages. Assignment of a Policy of Insurance to Trustees of Settlement, see post, Settlements. ASSIGNMENTS OF REVERSIONARY INTERESTS. JReversionary Interest, when as- signable or otherioise. Effect, of Assignments by a Hus- band. The disposition by Mangled Wo- men of JReversionary Interests in Personal Estate, authorized by Statute. assignable or otherwise. Reversionary Sect. 1. Reversionary or expectant interests are not assignable at interests, when j^^^,^ j^^^g.^ y_ ^oe, 3 T. R. 88 ; 1 Fonbl. 217. And courts of equity will set aside assignments by expectant heirs, on the ground of inade- quacy of consideration, 9 Yes. 246; 16 Yes. 512; 1 Fonbl. uh. sup.; Fox V. Wrhjht, 6 Madd. 111. A voluntary assignment by deed of an equitable reversionary interest in personal property is valid, Voyle V. Hughe.% 2 Sm. & G. 18 ; 18 Jur. 341 ; 23 L. J., Chan. 238. The assignment by deed of an equitable reversionary interest in per- ASSIGNMENTS. 415 soiial property is not to bo treated as a mere agreement, and altliough Reversionary it be voluntary, is not an incomplete gift, but is a transfer of the bene- Interests. ficial interest of the assignor. Ih. 2. An assignment by a man of a contingent interest in right of his Effect of as- ■\vife will not bind the wife, either at law or in equity, if she survive fjusij"and. ^ ^ hira before he has reduced it into possession, Ld. Carteret v. PaschuU, 3 P. Wms. 199 ; Purdeiv v. Jachson, 1 Russ. 1 ; Homier v. Mor- ton, 3 Russ. 65. See 2 Davidson's Conv. pp. 111—115, 2nd ed. 3. After the thirty-first day of December, one thousand eight Married hundred and fifty-seven, it shall be lawful for every married woman discos" '"t^e- by deed to dispose of every future or reversionary interest, whether versionary in- vested or contingent, of such married woman, or her husband in her ^Q^^^/gg'tafg^"^' right, in any personal estate whatsoever to which she shall be entitled and release under any instrument made after the said thirty-first day of December, po^^ers over *' * " 1 1 such estate, one thousand eight hundred and fifty-seven (except such a settlement and also their as after mentioned), and also to release or extinguish any power which "glits to a ser- , . , . , It- 1 1 tlement out ot may be vested in or limited or reserved to her m regard to any such such estate in personal estate, as fully and effectually as she could do if she were a possession, feme sole, and also to release and extinguish her right or equity to a settlement out of any personal estate to which she, or her husband in her right, may be entitled in possession under any such instrument as aforesaid, save and except that no such disposition, release, or ex- tinguishment shall be valid unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed : provided always, that nothing herein contained shall extend to any reversionary interest to which she shall become entitled by virtue of any deed, will, or instrument by which she shall be restrained from alienating or affecting the same. 20 & 21 Vict. c. 57, s. 1. 4, Every deed to be executed in England or Wales by a married Deeds to he woman for any of the purposes of this act, shall be acknowledged by ^y'^,""';yr\'e^^^^ her, and be otherwise perfected, in the manner by 3 & 4 Will. 4, c. women in the 74, prescribed for the acknowledgment and perfecting of deeds, dis- '"yi"edV% ex- posing of interests of married women in land ; and every deed to be 4 Will. 4, c. 74, executed in Ireland by a married woman for any of the purposes of f"'' <^>si'"sinL', of '' • /> 1 • intCTests HI or the act shall be acknowledged by her and be otherwise perfected in powers over the manner, by 4 & 5 Will. 4, c. 92, prescribed for the acknowledg- I'l'ii) •" \V.'",' 1 / • ri 1 T • r- . . r • i " land or V\ ales ; mcnt and nerfectrntr of deeds, disposmg of mterests of married women , , , , J ° ' I o ...,., in Ireland, as in land ; and all and singulai- the clauses and provisions in the said i,y 4 & 5 acts concerning the disposition of lands by married women, including ^^ ''!• *> ^- ^2. the provisions for dispensing with the concurrence of the husbands of married women, in the cases in the said acts mentioned, shall ex- tend and be applicable to sucli interests in personal estate and to such powers as may be disposed of, released, or extinguished by virtue of this act, as fully and effectually as if such interests or powers were interests in or powers over land. Jb. sect. 2. 416 ASSIGNMENTS. Reversionary Interests. The powers of disposition given by this act not to in- terfere with any other powers. Act not to ex- tend to settle- ments of mar- ried women upon mairiage. Not to extend to Scotland. 5. Provided always, that the powers of disposition given to a married woman by the act shall not interfere with any power whicli independently of this act may be vested in or limited or reserved to her, so as to prevent her from exercising such power in any case, ex- cept so far as by any disposition made by her under this act she may be prevented from so doing, in consequence of such power having been suspended or extinguished by such disposition. lb. sect. 3. 6. Provided always, that the powers of disposition hereby given to a married woman shall not enable her to dispose of any interest in personal estate settled upon her by any settlement or agreement for a settlement made on the occasion of her marriage. lb. sect. 4. 7. The act does not extend to Scotland. lb. sect. 5. No. CXCVI. Reversionary Interest. No. CXCVI. Assignment of Reversionanj Interest of a Slurried Woman. This Indenture made &c. Between A. B. wife of C. D. of &:c. {Vendor) of the first part the said C. D. of the second part and E. F. of &c. {Purchaser) of the third part Whereas the said A. B. is under and by virtue of the last will and testament of G. H. of &c. bearing date the day of entitled to the reversionary interest of and in the capital sum of £ Three per cent. Consolidated Bank Annuities expectant upon the decease of S. D. of &c. And whereas the said capital sum &c. now stands in the names of {trustees) in the books of the Governor and Company of the Bank of England And xchereas the said A. B. with the concurrence of her said husband hath contracted with the said E. F. for the absolute sale of all her re- versionary right title and interest of and in the capital sum of £ Three per cent. &c. expectant upon the decease of the said S. D. at or for the price or sum of <£ Now this Indenture witnesseth That for and in consideration of the said sum of £ to the said C. D. and A. B. his wife by the said E. F. well &c. paid at &c. she the said A. B. with the concurrence of the said C. D. her husband testified by his executing these presents Doth by this deed intended to be acknowledged by her and to be otherwise perfected in the manner prescribed for the acknowledg- ment and perfecting of deeds disposing of interests of married women in land and in reversionary interests in personal estate assign and dispose of unto the said E. F. his executors admi- ASSIGNMENTS. 417 Reversionary Interest. nistrators and assigns All that the remainder or reversion of No. CXCVI her the said A. B. expectant upon and to take effect immedi- ately upon and after the decease of the said S. D. of and in all that capital sum of £ Three per cent. &c. now standing in the names of the said (T.) as aforesaid in the books of the Governor and Compsiny of the Bank of England and all the interest dividends and annual proceeds thenceforth to grow due and payable thereon And of and in all and every the stocks funds and securities in or upon which the said sum of £ Three per cent. &:c. shall or may hereafter be laid out or in- vested and the interest dividends and annual proceeds thereof And all the estate right title interest possibility claim and demand whatsoever both at law and in equity of the said A. B. and of the said C. D. in her right in to out of and upon the said premises or any part thereof Together with full power to ask demand sue for recover and receive and sign and give effectual receipts and dis- charges for the same and every part thereof in the name or names of the said A. B. and C. D. or either of them their or either of their executors or administrators To have hold receive and take the said sum of £ Three per cent. &c. and all other the premises hereby assigned and disposed of or intended so to be Subject to the estate for life of the said S. D. unto the said E. F. his executors administrators and assigns absolutely for his and their own use and benefit A7id the said C. D. doth hereby Covenants by for himself his heirs executors and administrators covenant with the said E. F. his executors administrators and assigns That for Right to as- and notwithstanding any act deed matter or thing by the said ^'^"* A. B. and C. D. or either of them done made committed or executed or knowingly or willingly suffered to the contrary she the said A. B. now hath in herself full power and authority to assign and dispose of the premises hereby assigned or in- tended so to be and every part thereof unto the said E. F. his executors administrators and assigns in manner aforesaid and that free and clear and discharged from or well and sufficiently Free from in- indemnified against all former and other assignments charges and incumbrances executed or committed by the said A. B. and C. D. or either of them And further that the said A. B. and Further as- C. D. and each of them their and each of their executors and ''"''»'"-'^- administrators and every other person having or claiming or who shall or may have or claim any right title or interest of in to or out of the said premises hereby assigned or intended so to be VOL. T. E E 418 ASSIGNMENTS. Reversionary Interest. No. CXCVI. or any part thereof by from under or in trust for them the said A. B. and C. D. or either of them or their or either of their executors or administrators shall and will at all times hereafter at the request costs and charges of the said E. F. his executors administrators or assigns make do and execute or cause to be made done and executed all such further and other acts deeds acknowledgments and things whatsoever for the further and more eH'ectually assigning and assuring the premises hereby assigned or intended so to be or any part thereof unto the said E. F. his executors administrators and assigns or for empowering and enabling him and them to recover and receive the said monies and premises as by him or them or his or their counsel in the law shall be reasonably devised advised and required In witness &c. No. CXCVII. Shares. No. CXCVII. Transfer of a Share in a Company. Obs. By the Joint Stock Companies Act, 1856, the transfer of any share in the company shall be in the Form marked F. in the schedule thereto, or to the like effect, and shall be executed both by the trans- feri-or and transferree, the transferror shall be deemed to remain a holder of such share until the name of the transferree is entered in the register book in respect thereof, 19 & 20 Vict. c. 47, s. 20. See 19 & 20 Vict. c. 47, Sched, Form F. I A. B. of in consideration of the sum of £ paid to me by C. D. of do hereby transfer to the said C. D. share [or " shares"] numbered in " The in the Company" standing in my name in the books of the company to hold unto the said C. D. his executors administrators and assisjns [or " successors and assigns"] subject to the several conditions on which I held the same at the time of the ex- ecution hereof And I the said C. D, do hereby agree to take the said share [or " shares"] subject to the same conditions As witness our hands the day of ASSIGNMENTS. 419 As to Aasignments of Shares in Joint-Stock Companies incor- porated hy Act of Parliament, see " The Companies Clauses Consolidation Act, 1845," N0.CXCVIII. N0.CXCVIII. Assignment of Shares in a Copper Mine. Shares. This Indenture made &:c. Between (assignor) of &c. of the one part and (assignee) of &c. of the other part Witnesseth That Testatum, the said (assignor) for and in consideration of &c. Doth bargain sell and assign unto the said (assignee) All those two full sixty- fourth parts shares or doles [the whole into sixty-four equal parts shares or doles to be considered as divided] of and in that copper mine commonly called &c. of or to which the said (assignor) is possessed or entitled by virtue of an indenture of &c. Together with the like parts or shares of and in all copper copper ore lead tin tin ore and all or any other metals and minerals now or hereafter to be found broken or brought up to grass in upon or out of the said copper mine or adventure or any part thereof And also of and in all tackle tools whims engines stamps mills and implements of mining whatsoever And of and in all ways paths passages easements profits commodities advantages rights members and appurtenances Aiid all the estate &c. To have &c. the said two &c. and all and singular other the premises hereby assigned or intended so to be unto the said (assignee) his executors administrators and assigns according to the custom of the stannaries of Cornwall from henceforth for and during all the residue of the term of years from the day of when the original grant was made from the lords of the soil subject to the payment of the proj)ortionable part of the lord's and bounder's dues being one-twelfth part and also to two full sixty-fourth parts or shares of all costs and charges henceforth to accrue in working trying and prosecuting the said mine and premises and to the articles regulations and agreements in the said indenture contained or that hereafter may be made or entered into pursuant to the same for facilitating and prosecuting the said mine and the affairs thereof And the said Covenants. (assignor) for himself his executors &c. doth hereby covenant &c. with the said (assignee) his executors administrators and assigns ee2 420 ASSIGNMENTS. No. CXCVIII. Shares. Lawfully pos- sessed. Good right to assign. Quiet enjoy- ment. Free from in- cumbrances. Further as- surance. in manner following (tliat is to say) That he the said (assignor) is lawfully possessed of or rightfully entitled unto the said two sixty-fourth parts &:c. A^id that for and notwithstanding any thing to the contrary by him done he hath good right and full power to grant and assign the said two &c. And that it shall and may be lawful to the said {assignee) his executors &c. from henceforth peaceably and quietly to have and hold the same and receive and take the dividends proceeds and profits thereof with- out the let &c. of the said {assignor) his &c. [see Assignment of a Lease'] subject as aforesaid ^ ncZ that the said two&c. parts &c. hereby assigned &;c. now are free and clear and freely clearly and absolutely acquitted exonerated and discharged of from and against all and all manner of gifts grants bargains sales assign- ments leases mortgages charges and incumbrances whatsoever made &:c. by the said {assignor) kc. And that the said {as- signor) and all and every other person claiming or to claim under him shall and will from time to time and at all times here- after at the reasonable request &:c. make do &c. \_For further assurance, see Assignment of a Lease]. In witness &:c. No. CXCIX. Stock. Stamp. No. CXCIX. Assignment of Growing Crojis for securing a Sum of Money. Obs. An assignment of stock and crops in trust to sell, and with the proceeds to be produced by such sale to discharge debts due to the trustees and others, has been held to require, under the 55 Geo. 3, c. 184, not an ad valorem, but a common deed stamp only, Coates v. Perrg, 6 Moore, 188; S. C. 3 B. & B. 48. * This Indenture made kc. Between {assignor) of kc. of the one Recital of debt, part and {assignee) of &;c. of the other part Whereas the said {assignor) stands justly indebted to the said (assignee) in the sum of £ for money lent and advanced And whereas the said (assignee) hath commenced an action at law against the said (as- siqnor) in her Majesty's Court of Common Pleas at Westminster and the said (assignor) hath been held to bail thereon And whereas the said (assignor) hath applied to the said (assignee) and requested him to suspend any further proceedings in the said action and hath proposed to confess the same by cognovit under his hand with liberty for the said (assignee) to enter up judgment thereon in case default shall be made in payment of Agreement to si<£ii co;)novit. ASSIGNMENTS. 421 the said sum of £ contrary to the covenant hereinafter con- No. cxcix. tained Ayid ichereas the said {assignee) liaving susj-)ended all '^''"^•'"' proceedings in the said action the said {assignor) hath signed a cognovit as hereinbefore proposed and for the better securing the payment of the said sum of £ hath also agreed to assign the several crops now growing on his farm in manner hereinafter mentioned Now this Indenture witnesseth That in consideration Testatum. of the sum of £ so due and owing from the said {assignor) to the said {assignee) as aforesaid He the said {assignor) doth by these presents grant and assign unto the said {assignee) his exe- cutors administrators and assigns All and singular the crops of com and grass now growing arising and being in and upon the farm situate lying and being in the parish of aforesaid and consisting of the following particulars (that is to say) acres of wheat acres of barley acres of meadow grass acres of beans and acres of oats and all other crops now growing on the farm [^general description'] And all the right &c. of him the said {assignor) in to out of or upon the said crops of wheat and other crops and premises hereby as- signed with full liberty for the said {assignee) his servants work- men and agents either with or without horses carts and carriages at all reasonable times hereafter as long as the said crops of wheat and other crops shall be growing standing or lying on the said several pieces of land to enter upon the same to see the state of such crops and for the purpose of cutting reaping and carrying away the same and for all necessary purposes To have hold receive and take all and singular the said crops and premises hereby assigned or intended so to be in as full large and ample a manner to all intents and purposes as if possession had been taken of the same by the course of law or as the said {assignor) might have held and enjoyed them if these presents had not been made Upon trust (a) nevertheless in case default (a) If there be a trustee, and it be so agreed, say, " That lie the said {T.) his executors administrators and assigns do and shall at any time hereafter upon the request of the said (C.) her executors administrators and aligns either absolutely sell and dispose of the said crops of corn hereinbefore assigned or intended so to be as the same are now growing to any person willing to become the purchaser thereof or do and shall ])ermit the same crops to remain on the land until they are ripe and then do and shall cut reap and carry away and absolutely dispose of the said crops as he the said (7'.) shall think fit with full power ibr him to purchase in the said growing crops at 422 ASSIGNMENTS. No. CXCIX. Stock. Declaration of trusts. Indemnity to assiguee. Contracts and receipts to be valid. Not answerable tor losses. shall be made in payment of the said sum of £ on the day and in the manner as in the covenant hereinafter is men- tioned and expressed that the said {assiynee) his executors ad- ministrators and assigns do and shall sell the several crops hereby assigned And do and shall stand possessed of and interested in all sums of money to arise from such sale or sales Upon trust in the first place to reimburse himself or themselves all costs and expenses which shall be incurred or which he or they shall pay sustain or be put unto in effecting the sale or sales as aforesaid And in the next place do and shall pay or reim- burse himself («) the said sum of £ with interest for the same as in the covenant hereinafter is mentioned and expressed jJnd after payment thereof then in trust to pay and make over the residue and surplus [if any] unto the said [assignor) his exe- cutors administrators and assigns And, it is hereby declared and agreed by and between the parties to these presents that for the purpose of carrying into execution the trust aforesaid it shall be lawful for the said [assignee) to make do and execute all such con- tracts agreements acts matters and things as shall be necessary without any further consent or concurrence of the said (assignor) And that the receipts of the said (assignee) his executors &c. for all or any sum and sums of money which shall be paid and payable for the said crops by virtue of these presents shall be valid and sufficient discharges to the person or persons paying the same And further it is hereby declared and agreed that no neglect or default shall be imputable to the said (assignee) his executors administrators or assigns for not proceeding to the sale of the said trust premises unless he or they shall be required so to do by some writing under the hand of the said (assignor) his executors &c. and that the said (assignee) his executors &c. shall not be answerable for any loss or damage which may happen to the said crops or the several pieces of land whereon they shall be growing unless occasioned by his or their wilful default and that he and they shall be respectively answerable for such sum or sums of money only as he or they shall actually receive any public auction and to resell the same at any future auction or otherwise without liability for any loss to accrue thereby and do and shall stand and be possessed of &c." see above. (a) If there be a trustee say, " In the next place do and shall pay the said (C.) her executors administrators and assigns the said sum of £ with interest &c." see above. ASSIGNMENTS. 423 And the said (assignor) doth hereby for himself his heirs exe- No. CXCIX. cutors and administrators covenant with the said (assignee) his ^^'"'''- executors administrators and assigns that he the said {assig7ior) Covenant for his heirs executors or administrators will on the day of P^y™^" • next pay to the said (assignee) his executors adminis- trators or assigns the sum of £ sterling with interest for the same in the meantime at the rate of £ per centum per annum without any deduction whatsoever In witness kc. ^^' ^^- No. CC. Assignment of Chattels real, to icliich a Person is entitled in Terms. Right of his Wife, in Trust to re-assign the same. Ohs. 1. Terms for years and other chattels real, of which a wife is or may be possessed during her coverture, will survive to her, unless the husband exercise some act of ownership in his lifetime, as by assignment or otherwise. He cannot dispose of them by will .until he has so done, as the will does not take effect until after his death, and the law vests the term in the wife immediately after the decease, Co. Litt. 351 b ; Com. Dig. Baron and Feme, E. 2 ; 1 Rop. Hus. & VV. 196. 2. As to the stamp on assignments, not charged as conveyances, see ante, Assignments, Pref. sect. 9, p. 347. This Indenture (fee. Between (Husband) of &c. of the one part and ( Trustee) of &c. of the other part Whereas the said ( //.) as husband of M. his wife formerly M. T. spinster is possessed of or entitled to divers messuages and for divers terms of years and is desirous of becoming the absolute owner of the same to the intent that he may have the right of settling and disposing of the same by will or in any other manner as he shall think fit Noio for the purposes aforesaid He the said (H.) Doth by these presents as- sign unto the said (T.) his executors &c. All those the messuages or tenements and lands whatsoever of which he the said (//.) is possessed or in which he is interested in right of his wife or as her husband for any term of years or any other chattel interest whatsoever with their and every of their appurtenances And all the estate &c. of him the said (//.) To have and to hold the Habendum, said messuages &c. and all and singular other the premises hereby assigned and every part and parcel thereof with their appurtenances unto the said ( T.) his executors administrators ;md 424 ASSIGNMENTS. No. CC. assisfns henceforth for the several residues and remainders of tlie Terms. several terms for years or other interests which the said (H.) hath in the said messuages respectively now to come and unex- pired for and during all such times terms for years and other interests as the said (//.) now hath in the said messuages &c. respectively as fully and beneficially to all intents and purposes as the said ( H.) can assign or otherwise assure the same Ner^erthe- fcs.s upon trust that the said {T.) his executors administrators and assigns do and shall immediately after the execution of these presents re-assign the said premises hereby assigned or otherwise assured with their and every of their appurtenances and all his and their estate right title &c. unto the said {H.) his executors administrators and assigns for all the then residues and re- mainders of the several terms for years or other interests of the said (T.) his executors administrators and assigns therein In witness &c. No. CCI. No. CCI. Re-assignment hy Indorsement, in Pursuance of the foregoing Deed. Know all Men hy these Presents That in execution of the trust reposed in him the within named ( Trustee) in and by the within written indenture He the said {T.) Doth by these presents assign unto the said {H.) his executors &c. All the messuages &c. whatsoever which by the within written indenture were and are assigned or otherwise assured by the said {H.) to the said ( T.) or intended so to be and every part and parcel of the same with their and every of their appurtenances And also all the estate right title interest property power claim and demand whatsoever of him the said (T.) of in to upon and over the said messuage by force or virtue of the said within written indenture or otherwise howsoever Together with the same in- denture To have and to hold the said messuages &c. and all and singular other the premises hereby assigned and every part &c. with their appurtenances unto the said {H.) his executors administrators and assigns henceforth for the several residues and remainders of the several terms for years and other interests which he the said {T.) hath in the said messuages respectively by virtue of the within written indenture and for and during all ASSIGNMENTS. 425 such time or times &c. and other interests as the said {T.) now No. CCI. hath in the said messuages &C. respectively by virtue of the ^^'"'"^' same indenture as fully and beneficially as the said (T.) can assign or otherwise assure the same In witness &.c. No. ecu. No. ecu. Assignment of a Wife's Tei-mfor Years by a Husband and a Wife to a Purchaser. Obs. A man having an absolute right to dispose of a wife's term of years (see last fyrecedent) may do so alone, but it is most usual to make the wife a party in an assignment to a purchaser. This Indenture made (fee. Between (assignor) of &c. and M. his wife [before marriage M. R. spinster] of the one part and (assignee) of &c. of the other part Whereas by an indenture bearing date (fee. and made or expressed to be made between J. H. therein described of the one part and the said M. [then M. R. spinster] of the other part For the considerations therein mentioned the said J. H. did demise and lease unto the said M. R. her executors administrators and assigns All that mes- suage Sec. with the appurtenances To hold the same unto the said M. R. her executors &c. from the day of last past for and during &c. from thence next ensuing and fully to be complete and ended subject to the rents covenants and agree- ments therein reserved and contained and on the lessee's part to be paid observed and performed And whereas the said (assignor) with the privity and approbation of the said M. his wife hath contracted and agreed with the said (assignee) for the absolute sale to him of the said messuage &:c. for the residue &c. Now this Indenture witnesseth That in pursuance of &c. and in con- sideration of the sum of £ to the said (assignor) in hand (fcc. by the said (assignee) well &c. paid the receipt &c. He the said (assignor) with the privity of M. his wife testified &c. Doth by these presents assign unto the said (assignee) his &c. All that &,c. [see Assignment of a Lease, ante, p. 389] And all the estate &;c. To have and to hold the said messuage &c. unto the said Habendum. (assignee) his &c. And the said (assignor) for himself &c. doth Covenants, hereby covenant &c. in manner following (that is to say) That A subsisting for and notwithstanding any act &c. by him the said (assignor) and M. his wife made &:c. [lease is good and suhs'isting, see Assignment of a Lease, ante, [). 300] And that for and ivA- 426 ASSIGNMENTS. No. ecu. Terms. Good right to assign. Quiet enjoy- ment. Further as- surance. Covenant from assignee to indemnify as- signor. withstanding any such act deed matter or thing as aforesaid he the said {assignor) and M. his wife or one of them have or hath (fee. in themselves himself or herself [jjood right to assign Sfc. ante, p. 390] And that it shall be lawful for the said {assignee) his &c. peaceably and quietly to have &:c. without the lawful let suit &:c. of or by him the said {assignee) and the said M. his wife or either of them their or either of their executors &:c. And that free and clear and for ever discharged or otherwise by the said {assignor) his heirs executors or administrators well and sufficiently saved defended and kept harmless and indemnified of from and against all estates &c. whatsoever either already had &c. or hereafter to be had &c. by the said (assignor) and M. his wife or either of them their or either of their executors or administrators or by any person or persons lawfully or equitably claiming or to claim by from under or in trust for them or any of them And further that he the said {assignor) his executors &c. and all and every other person or persons having or claiming &c. by from under or in trust for him the said {assignor) and M. his wife or either of them their or either of their executors &c. shall and will make and do &c. [acts for further assurance, ante, p. 391] And also that he the said {assignor) his executors and administrators shall and will ])ay the rent reserved by the aforesaid in part recited in- denture of lease up to and including Midsummer-day now next ensuing and shall and will save &:c. the said {assignor) his execu- tors administrators and assigns and his and their lands and tene- ments goods and chattels respectively from the same rent and from all costs and expenses on account of the breach or nonper- formance of any of the covenants or agreements in the said in part recited indenture on the part of the said M. her executors admi- nistrators or assigns to be performed from the commencement thereof And the said {assignee) doth hereby for himself his exe- cutors &c. covenant &c. with the said {assignor) that he the said {assignee) shall and will &c. pay the yearly rent &:c. and perform fulfil and keep all and every the covenants and agreements in the said &:c. in part recited indenture of lease contained on the part of the tenant or lessee from henceforth to be performed and from the same rents covenants and agreements and all costs and ex- penses on account of any breach neglect or default of or in payment or performance thereof as aforesaid shall and will save harmless and keep indemnified the said {assignor) and M. his wife and each of them and each of their executors &c. \_ante, p. 392] In witness Sec. ATTESTATIONS. 427 ATTESTATIONS. '[. Attestation, what. \ 2. Attestation of wills. Sect. 1. An attestation of a deed is a memorandum by the wit- Attestation, nesses who saw the same sealed and delivered, and who are to endorse ^ ''^ ' or underwrite their names thereon. A deed sealed and delivered, it is said, may be good, for the seal is the essential part of the deed, 1 Inst. 7 ; 10 Co. 93. The attestation clause of the execution of powers of appointment should be worded with reference to the for- malities prescribed by the power. It is necessary to insert the word "signed," if the appointment be required to be signed; see Sugd. Pow. 7th ed. pp. 286, et seq. ; Doe v. Burclett, 4 Ad. & Ell. 1 ; 10 CI. & Fin. 340 ; Bartholomew v. Harris, 15 Sim. 78 ; Vincent v. Bishop of Sodor and Man, 4 De G. & Sm. 294. It is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto, 17 k 18 Vict. c. 125, s. 26. 2. By the Statute of Frauds, 29 Car. 2, c. 3, all devises and Attestation of bequests of any lands or tenements devisable by the Statute of Wills, ^"'^* or by any particular custom, were required to be signed by the party devising the same, or some other person in his presence, and by his express directions, and to be attested and subscribed in presence of the devisor, by thiee or four credible witnesses. By the 7 Will. 4 & 1 Vict. c. 26, ss. 5, 6, 19, 20, 21 and 22 of the above statute are repealed. ]>y 7 VVill. 4 & 1 Vict. c. 26, s. 9, no will of either real or personal estate is now valid unless it be in writing, and signed at the foot or end thereof by the testator or by some other person in his presence, and by liis direction, and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses are to attest and shall subscribe the will in the presence of the testator, but no form of attestation is necessary. See 15 & 16 Vict. c. 24, which provides what signature to a will shall be deemed valid. If there be no attestation clause to a will, or an in- sufficient one, an affidavit is required before probate, from one of the subscribing witnesses, to prove compliance with the above statutes. See Form of Affidavit, No. XLL, ante, p. 67. 428 ATTESTATIONS. No. CCIII. No. CCIII. Deaf and Dumb. Attestation of the Execution of a Deed hy a Person Deaf and Dumb. The within written indenture was signed sealed and delivered [being first duly stamped] by the within named A, B, who being deaf and dumb but capable of reading the same was first read over by him and he seemed perfectly to understand the same in the presence of C. D. of&c. E. F. of&c. No. CCIV. Blind. No. CCIV. Attestation of the Execution of a Deed hy a Blind Person. The within written indenture was signed sealed and delivered by the within named A. B. [having been first duly stamped] and he being blind the same indenture was carefully and audibly read over to him in the presence of CD. of&c. E. F. of &c. No. CCV. Attorney. No. CCV. Attestation of the Execution of a Deed as the Attorney. Signed sealed and delivered by the within named C. D. as the attorney of the within named A. B. [being first duly stamped] in the presence of E. F. of &c. G. H. of &c. No. CCVI. Power of Attorney. No. CCVI. Attestation and Testimonium of a Deed executed under a Power of Attorney from Two. Signed sealed and delivered [being first duly stamped] by the within named A. B. as the attorney of the within named C. D. and E. F. and in the names and as the several acts and deeds of the said C. D. and E. F. in the presence of G. H. of&c. I. K. of&c. ATTESTATIONS. 429 No. CCVII. TJie Testimonium. In witness whereof A. B. of &;c. hath by virtue of a deed-poll or letter of attorney under the hands and seals of the said C. D. and E. F. bearing date the day of 18 and hereunto («) annexed put the hands and seals of the said C. D. and E. F. the day and year first above written. C. D. {seal) by A. B. his attorney. E. F. {seal) by A. B. his attorney. No. CCVII. Testimonium. No. CCVIII. Testimonium in Lease executed hy Committee on behalf of a Lunatic. In witness whereof the said {Committee) by virtue of the said act of parliament and in obedience to the order of the said Lord Chancellor [or Lords Justices] bearing date the day of in the above written indenture severally referred to and recited hath to these presents as the committee of the estate of the said {lunatic) and in his place and on his behalf subscribed the name and set the seal of the said {lunatic) [and the other above named parties to these presents except the said {lunatic) have hereunto set their hands and seals] on the day and year first above written. Attestation. Sioned sealed and delivered by the within named (committee) as the committee and in the name and on behalf of the within named {lunatic) in the presence of &;c. No. CCVIII. No. CCIX. Attestations where there happen to be Interlineations, &fc. Signed sealed and delivered [being first duly stamped] by the within ijamed A. B. the words {cojpy the words] having been (a) If the letter of attorney concern other property, a true copy of the same should be annexed. No. CCIX. Jntciliiwations. 430 ATTESTATIONS. No. CCIX. previously interlined in the fourth and fifth lines of the first skin In terlineatio ns, ^qj- " written over obliterations between" kc. as the case, may Z>e] in the presence of &c. No. CCX. No. CCX. As Attorney. Attestation of a Deed executed by one Party in Ms oum Right and as the Act of another of the Parties hy Virtue of a Power. Signed sealed and delivered [being first duly stamped] by the above named [or " within written"] A. B. with his own name and as his own act and deed and afterwards as the attorney and in the name and as the act and deed of the within named C. D. by virtue of the authority given to him the said A. B. for that purpose by the indenture of assignment from the said C. D. to him the said A. B. and which is recited in this instrument in the presence of &c. No. CCXI. Will. No. CCXI. Attestation of a Will. Signed and acknowledged by the said testator as and for his last will and testament in the presence of us present at the same time who in his presence and at his request and in the presence of each other have hereunto subscribed our names to each sheet as witnesses thereto [and if there are two parts say, " as we have also done to each sheet of another part of his will at the same time," see ante, p. 427]. No. CCXII, Testimonium, No. CCXII. Testi?nonium. of a Will. In witness whereof I the said A. B. the testator have to this my last will and testament contained in sheets of paper set my hand the day of in the year of our Lord 18 ATTESTATIONS. 431 No. CCXIII. No. CCXIII. Attestation of Warrant of Attorney. Warrant of See 1 & 2 Vict. C. 110, S. 9. _Jttorney._ The above written warrant of attorney to confess judgment was signed sealed and delivered by the above named A. B. in the presence of me of &c. one of the attornies of the court of at Westminster And\ hereby declare myself to be the attorney for and on the behalf of the said A. B. expressly named by him and attending at his request and that I informed the said A. B. of the nature and effect of the above written warrant of attorney before the same was executed And \ also declare that I subscribe my name as such attorney. ATTORNMENTS. 1. Definition of an Attornment. 3. Stamp Duty on Attornment. 2. Object of an Attoimment. Sect. 1. Attornment is, properly, the acknowledgment by the Definition of tenant of a new lord, or the agreement of the tenant to the grant of ^" attornment, the seignory of a rent, or of a reversion and remainder, see Co. Litt. 309 a. Butl. n. Since the 4 & 5 Ann. c. 16, and 11 Geo. 2, c. 19, an attornment is no longer necessary to the validity of a grant, and is therefore seldom made, except occasionally to mortgagees where the mortgagor is in tlie actual possession of the mortgaged property or a material part of it. See Jarra. Conv. by Sweet, pp. 35 — 49. 2. The object of an attornment is to enable the mortgagee to treat object of an the mortgagor as his tenant, and to distrain for interest as rent. See attornment. Pinhorn v. Souter, 8 Exch. 763 ; Walker v. Giles, 6 C. B. 662 j Doe V. Cox, 11 Q. B. 122; Doe v. Tom, 4 Q. B. 615; West v. Fritche, 3 Exch. 216. An express power to distrain for the interest of the mortgage debt is sometimes given by way of covenant from the moi'tgagor with the mortgagee, see Doe v. Olley, 12 Ad. k. Ell. 481 ; Doe v. Goodier, 10 Q B. 957; but it seems that such a cove- nant will only bind the mortgagor's goods on the land, and not those of a third party, Freeman v. Edwards, 2 Exch. 732 ; Jolly v. Ar- huthnot, 5 Jur., N. S. 80. As to the effect of an attornment by a tonant to a receiver a])pointed by the Court of Chancery, see Kvans v. Matthias, 3 Jur., N. S. 793 -, 26 L. J., Q. B. 309. 432 ATTORNMENTS. Attornments. Stamp duty on attornment. An attornment is, in some cases, made by tenants to the party who has recovei-ed the kinds by judgment in an ejectment, see 2 Jarm. Conv. by Sweet, p. 50. 3. A mere attornment, not containing an agreement to pay such rent as shall be agreed upon, requires no stamp, Cornish v. Searell, 8 B. & C. 47. A doubt has been suggested whether the insertion of an attornment clause in a mortgage may not subject the instrument to a lease stamp, 5 Sweet, Jarm. Conv. p. 515; but, according to the opinion of another learned author, an attornment is an integral part of the mortgage, and cannot have the suggested effect, 2 Davidson's Conv. p. 568, 2nd ed. No. CCXIV. No. CCXIV. Attornment hy a Mortgagor to the Mortgagee iji a Mortgage in Fee. And this Indenture further witnesseth That for the considera- tions aforesaid the said {mortgagor) Doth hereby attorn and become tenant from year to year to the said {mortgagee) his heirs and assigns for and in respect of the said premises no-w held and occupied by the said {mortgagor) at or under the yearly rent of £ free from all deductions to be paid by half-yearly pay- ments on the day of and the day of in every year And the first half-yearly payment thereof to be made on the day of now next ensuing which said yearly rent is to be applied upon and for the trusts intents and purposes hereinbefore expressed and declared And in testimony of such attornment the sum of five shillings has been paid to the said {rnortgagor) by the said {mortgagee) Provided always and it is hereby agreed and declared that if the said {mortgagor) his heirs executors administrators or assigns shall make default in payment of the said sum of £ or the interest thereof or any part thereof respectively on or at the days or times herein- before mentioned and appointed for the payment thereof respec- tively then and at any time thereafter it shall be lawful for the said {mortgagee) his heirs and assigns upon giving to the said {mortgagor) his heirs executors administrators or assigns or leaving on the premises fourteen days' previous notice in writing to enter into and upon and take possession of the said heredita- ments and premises whereof the said attornment has been so made as aforesaid and to determine and put an end to the tenancy created by the aforesaid attornment. AUCTIONS. 433 AUCTIONS. 1. What constitutes an Auction. 2. Sales hy Auction within the Statute oj" Frauds. 3. Licence to sell hy Auction. 4. Particulars and Conditions of Sale. 5. Conduct of the Sale. Auctioneer Agent for both Par- ties. Auctioneer an Agent tvithout writ- ten Authority. ImjAied Authority. Auctioneer must not exceed his Authority. 6. Biddings at the Sale. Biddings hy competent Persons. Private Biddings how far admis- sible, or otherwise. 7. DejMsit Part of Purchase Money. Payment of Deposit to Auc- tioneer. Tnterpleader Bill hy Auctioneer. Pelief under Interpleader Act. Effect of Auctioneer's Insol- vency. Investment of the Deposit. 8. Auctioneer's Liability as to Charge of Goods. Proceeds of Sale. 9. Pemuneration of Auctioneer. 10. Validity of the Contract. Particulars and Conditions of Sale. Biddings at the Sale. Provisions of the Statute of Frauds. Signing the Contract. Contract entire or otherwise. Sect. 1. An auction is a sale by competition, where the highest Whatconsti- bidder is the purchaser, but to constitute a sale by auction it is not ^^^^ ^" ^"'^" necessary that it should be conducted in any particular manner. The words of the 19 Geo. 3, c. 56, s. 3, are " by outcry, knocking down of hammer, by candle, by lot, by parcel, or by any other mode of sale at auction, or whereby the highest bidder is deemed to be the pur- chaser," and therefore a sale in a private room, where several persons were present, and a bargain was struck with one who offered the most, was held to be a sale within the auction laws, Walker v. Advocate- General, 1 Dow. 114; and anything in the nature of a bidding is within the act, as candlestick biddings, R. v. T'aylor, 13 Price, ()36 ; S. C. M'Clel. 362 ; dumb biddings and the like, Crusu v. Crisp, 3 p]ast, 340 ; but it ajjpears that where property is j)ut up to sale, and there is no person that bids, this will not be deemed an auction within the act, the bare proposal of a sum I)y an agent for the owner not being held to be a bidding, lb., and see Capp v. Tupham, 6 East, 392 ; S. C. 2 Smith, 443. The law of auctions is affected not oidy by the revenue laws, but What comjire- also by the general law reguhiting tlic transfer of property real and ['i', "'["^li of"'""^ personal. In this twofold point of view it embraces various matters auctions. VOL. I. I' '• 434 AUCTIONS. Auctions, Sales by auc- tion within the Statute of Frauds. Licence to sell by auction. Particulars and conditions of sale. Conduct of the sale. Auctioneer an agent for both parties. Auctioneer an agent without written autho- rity. Implied autho- rity. as regards the Statute of Frauds, the licence to sell by auction, the conditions of sale, the conduct of the sale, the biddings at the sale and the deposit. 2. It was for some time a matter of question, whether sales by- auction were within the Statute of Frauds. In one case it was ex- pressly decided that they were not, Simon v. Motivos, 3 Burr. 1921 ; but that case has been overruled by a variety of subsequent decisions, and it is now settled that the provisions of that act must be complied with in sales by auction, whether of real or personal estate, in the same manner as in sales by private contract. 3. No one can sell anything by auction without taking out an excise licence. The enactments regulating the licence are contained in the 19 Geo. 3, c. 56 ; 43 Geo. 3, c. 130 ; 6 Geo. 4, c. 81 ; 7 & 8 Geo. 4, c. 53; 4 & 5 Will. 4, c. 51 ; and 8 & 9 Vict. c. 15. The duties payable on sales by auction were repealed by 8 & 9 Vict. c. 15, s. 1. 4. The particulars or conditions of sale, which more immediately concern the parties themselves, are of the first importance, and require to be drawn up with special care. 5. The conduct of the sale rests with the auctioneer, who at all times was held to be an agent for the vendor, Bcxrvell v. Christie, 3 Bing. 368 ; and according to the later decisions, he has been held to be also an agent for both parties, Emmerson v. Heelis, 2 Taunt. 38 ; Kemys v. Proctor, 3 V. & B. 57 ; S. C IJ. & W. 350; and as an agent he cannot delegate his authority, and cannot therefore authorize any one, not even his own clerk, to sell without the consent of the owner of the property, Coles v. Trecothich, 9 Ves. 236; although for some purposes the clerk may also be an agent for both parties as well as the auctioneer himself, Payne v. Cave, 3 T. R. 148 ; Goshell v. Archer, 2 Ad. & Ell. 500 ; -S. C. 4 Nev. & Man. 485 ; S. C. 1 Har. & Woll. 31. An auctioneer, who is employed to sell] goods by auction, has not such an interest as will make the licence to enter the premises for that purpose irrevocable, Taplin v. Florence, 10 C. B. 744. No written authority is necessary to constitute the auctioneer an agent for both parties, the seller giving authority by his instructions to sell, and the buyer, to whom the conditions of sale, pasted on the auctioneer's box, are a sufficient notice of the terms by his bidding aloud, Si7non v. 3Iotivos, 1 Bl. 599; S. C. 3 Burr. 1921 ; Hinde v. Woodhouse, 7 East, 558 ; Emmerson v. Heelis, 2 Taunt. 38 ; Shelton V. Livius, 2 Tyrw. 436; Bird v. Boulter, 4 B. & Ad. 443; and an authority may be implied by certain acts without any verbal instruc- tions, as if the owner of a horse sent it to a common repository for the sale of horses, or the proprietoi- of goods send them to an auction room, Pickeriny v. Bush, 15 East, 42 ; and so an auctioneer's clerk can bind the purchaser as well as the vendor by an entry made in AUCTIONS. 435 their presence, as by tlieir silence when the hammer falls he is con- Auctions. sidered to have their authority to execute the contract on their behalf, Farehrother v. Si/ninons, 5 B. & Aid. 333. An auctioneer selling by auction railway shares, without disclosing the name of his principal, is personally liable for performance of the contract, though he afterwards offer to give the name of his employer, Franklin v. Lamond, 11 Jur. 780; 16 L. J., C. P. 221 ; 4 C. B. 637. An auctioneer, in conducting a sale by auction, cannot deviate from Auctioneer the strict terms of his instructions; if he does, he will be personally '""^^ "o' ^'^- amenable for the consequences, Poivell v. Sadler, cited Paley, P. & rity. A. 80 ; and therefore if he sell by private contract pi-operty intrusted to him to sell by auction, he will be held liable, Daniel v. Adams, Amb. 495 ; so if the auction duty attached on a sale through his neglect, he could not recover the same, Ca]ip v. Tophani, 6 East, 392; Jones v. JVanney, 13 Price, 76; S. C. M'Clel. 25. As to the duty and liability of the auctioneer with regard to the biddings at the sale, and the deposit after the sale, see infra. 6. To complete a sale by auction, there must be a bidding on the Biddings at the one side by one as a purchaser, and an acceptance of the bidding by ^ the auctioneer, signified by the fall of his hammer, Payne v. Cave, 3 T. R. 148 ; and before the hammer is down, the purchaser may re- tract his bidding, lb. ; but the retraction must be made loud enough to be heard by the auctioneer, otherwise it will be of no avail, Jones V. Nanney, uh. sup. The bidding must be by some person capable of being a purchaser. Biddings by and therefore a bidding by a lunatic or idiot would be void, on the '^o'upetent per- • 1 1 1 1- sons. general principle that such person cannot make a valid contract, Yates v. Uoen, 2 Str. 1104, and so a bidding by a drunken man, Filt V. Smith, 3 Campb. 38 ; and so it is not competent to an auc- tioneer to make a bidding, unless he acts as duly authorized agent, Cules V. Trecothich, 9 Ves. 248. The courts at one time discountenanced private biddings, holding Private bid- tliem to be a fraud ui)on the purchaser, JJextvell v. Christie, Cown. ' \""-^ 'IT ' J^ / _ _ _' _ 1 admissible, or 3!)5 ; and the acts of parliament, which permit a private bidding on otherwise, behalf of the vendor, were held to be made for the protection of the revenue, and not to interfere with private rights, Howard v. Castle, 6 T. R. 642 ; it seems, however, now to be settled, that a private bidding is admissible when used only to prevent the property from being sold below its real value. Smith v. Clarke, 12 Ves. 477 ; there- foi'e where a person is employed, not for a defensive purpose, but to screw up the price, the sale has been held bad, lb. 483 ; so likewise where more than one person is employed, Wheeler v. Cullier, 1 Mood. & M. 123 ; It. v. Marsh, 3 Y. & J. 331 ; so likewise whei-e, in tlie conditions of sale, it is stated that the estate is to be sold ** without reserve," iMeadorvs v. Tanner^ 3 Madd. 34. See j>ost, ]). 439. F f2 436 AUCTIONS. Deposit part of purchase money. Payment of deposit to auc- tioneer. Auctions. To obviate all questions, the vendor ought to give notice in the con- ~ ditions of sale, that the owner may bid once in the course of the sale. 7. After the completion of the sale, it is usual to require a sum to be paid down by way of deposit ; and this payment will be deemed to be in part of the purchase money, and not as a pledge, Pordage v. Cole, 1 Saund. 320 ; but it will not be deemed in equity to be sufficient part performance of a contract so as to take the cause out of the Statute of Frauds, Main v. Mdhuurne, 4 Ves. 720. If by the conditions of sale the deposit is made payable to the auc- tioneer or solicitor, the payment ought to be immediately required, Hanson v. Roberdeau, 1 Peake, 120. The auctioneer, in receiving the deposit, is deemed a mere stakeholder, and not an agent, as in the case of the sale ; and he cannot legally part with it until the sale is completed, and it appears to whom it properly belongs, Burrovgh v. Skinner, 5 Burr, 2639; and he will be answerable to the purchaser for the deposit, though he may have paid it over to the vendor, Edn-ards v. Holding, 5 Taunt. 815; >S. C. 1 Marsh. 377; but if he retain the money, he is not hable to pay interest for it, Lee v. Munn, 8 Taunt. 45 ; S. C. 1 Moore, 481 ; although he place the money in the funds, and make interest of it, Harrington v. Hoggart, 1 B. & Ad. 577 ; and it makes no difference that the vendor desires the money to be put out to interest, if the purchaser does not join in the request, lb. Where there is an adverse claim, the auctioneer may either file an interpleader bill, Farehrother v. Prattent, 5 Price, 303; S. C. 1 Dan. 64 ; Annedey v. Mtiggridge, 1 Madd. 593 ; or he may seek relief under the Interpleader Act, 1 & 2 Will. 4, c. 58, Allen v. Gillnj, 3 D. P. C. 113; see Sugd. V. & P. pp. 41, 42, 13th ed. ; but he cannot file a bill of interpleader, if he insist on retaining out of the deposit either his commission or the auction duty; for interpleader is, where the plaintiff" is wholly indiff"erent between the parties, and the right to which will be fully settled by interpleader between the defendants, Blitchell v. Hayne, 2 Sim. & Stu. 63. Where an auc- tioneer has sold the same estate to and received a deposit for it from two different parties, each of whom insists on the completion of the sale to himself, and the vendor brings an action against the auctioneer for both deposits, he cannot combine the three cases in one bill of interpleader; for the case must be one in which the fund is matter of contest between two parties, and in which the litigation between those parties will decide all their respective rights with respect to the fund, Hoggart v. Cutts, Cr. & Phill. 197- If upon a bill filed for an injunction the court order the deposit to be paid into court, it will, it seems, deduct the charges of the auctioneer, Annedey v. Muggridge, 1 Madd. 393 ; yet without prejudice to any question as to so much of the deposit as is retained, Yates v. Farebrotker, 4 Madd. 289 ; and Interpleader bill by auc- tioneer. Relief under tbe Inter- pleader Act. AUCTIONS. 437 under the Interpleader Act, an auctioneer payin^^ the deposit into Auctions. court was held entitled to receive his costs out of the fund so paid in, Pitchers v. Ednei/, 4 Binrj, N. C. 720. See Deller v. Prkhett, 15 Jur. 168; 20 L. J., Q. B. 151. Where a vendor resists the application of the purchaser that the Effect of auc- f* » * 1 deposit in the auctioneer's hands shall be paid into court, he shall be ^^^^T^ ^ *"^° ' chartred with the loss occasioned by the auctioneer's failure, Fenton V. Broirne, 14 Ves. 144 ; and where the deposit, pending any suit Investment for specific performance, is invested by order of the court, it will be ' deemed part of the purchase money, and the vendor must abide by the rise or fall of the funds, Poole v. Rudd, 3 B. C. C. 49. So where the purchaser invested the deposit, and giving notice to the vendor, the latter returned no answer, it was held, that the advantage of a rise and the loss by a fall of the stock belonged to the purchaser, Roberts v. Massey, 13 Ves. 561. See Sugd. V. & P. pp. 43, 44, 13th ed. Where tlie deposit has been paid to the vendor, and he fails to Purchaser en- complete his contract, he is answerable to the purchaser not only for ^|^^^^^ on'de- the deposit, but also for interest thereon, De Dernales v. Wood, 3 posit. Campb. 258 ; Maherbj v. Robins, 5 Taunt. 625 ; S. C. \ Marsh. 258 ; and the purchaser is entitled to interest from the time the pur- chase should have been completed, Farqiihar v. Farley, 7 Taunt. 592 ; S. C.l Moore, 323 ; recognized in JIarriiujton v. Ho(jfjart, ub. sup. ; and the case is the same if the money is paid to an agent for the vendor, Duke of Norfolk v. Wortky, 1 Campb. 337; but the plaintiff's remedy for the return of the deposit is at law, and a court of equity will not give relief in such cases, Sainshury v. Jones, 2 Beav. 462 ; yet where, after a bankrujit's estate has been sold and the purchaser has paid a deposit, the fiat is superseded, the court will order the return of the deposit, without compelling him to file a bill, Ex parte Fector, 1 Buck. 428 ; and in some cases a purchaser has Deposit not been held not entitled to a return of the deposit, as where a bill for specific performance, filed by a purchaser, has been dismissed, the court will not order the deposit to be returned, as that would be decreeing relief, Jiennet College v. Carey, 2 B. C. C. 390. So where there is an implied agreement between the seller and the buyer, that, if the former will annul the contract, the latter will not compel a return of the deposit, it appears that the jjurchaser cannot after- wards bring an action for the recovery of the dcjiosit, Clark v. Upton, 3 Man. & Ry. 89; and see Ilorford v. Wilson, 1 Taunt. 12. In rorfeiture of Sacille v. Suville, 1 P. Wms. 745, it was said, that if a purchaser '•'^I'O'*''- submitted to forfeit his deposit, a court of equity would not compel him to complete the contract ; but the reporter adds, that it was not the general law of the court at that time ; and it seems that a pnr- cliaser cannot elect to put an end lo the agreement by foifeiting the 438 AUCTIONS. Auctions. Auctioneer's liability as to charge of goods. Proceeds of sale. Remuneration of auctioneer. deposit, 1 Sugd. V. & P. p. 51, 11th ed., citinof 2 Mer. 506; 9 Ad. & Ell. 5"20 ; see further as to forfeiture, post, Conditions op Sale. 8. On tlie general principle of the auctioneer being an agent, he is bound to take as much care of the goods intrusted to him as he would take of his own ; and if loss or damage arises to it through his default, he will be liable to the owner for it, 3Ialthy v. Christie, 1 Esp. 340 ; sed secus, if it be purely accidental, lb. Goods are privileged from distress during the time they are on the premises of the auctioneer for the purpose of a sale by auction, Williams v. Holmes, 8 Exch. 861. An auctioneer is in general not responsible for the purchase-money, unless he has received it; but if he sell on credit, without the express order of his principal, he is then liable to the latter for the purchase- money, Williams v. MilUngton, 1 H. Bl. 81. When he has received the purchase-money, it is his duty to pay over the same to his em- ployer immediately ; and this he may do, although the latter is to his knowledge in insolvent circumstances, White v. Uartlett, 9 Bing. 378; S. C. 2 M. & Sc. 515 ; so where the OM'ner of goods, sold by an auctioneer, had committed an act of bankruptcy before the sale, but without the knowledge of the auctioneer, held, that payment by the latter of the proceeds to the owner was protected by the Bank- rupt Acts, Coles V. Mohins, 3 Campb. 183 ; but he will be liable to the real owner of goods, if, after a written notice that they did not belong to his employer, he persists in the selling them, llardacve\. Stewart, 5 Esp. 103; so where he sold the goods of B. as the goods of A., and suffered the buyer to pay A., he could not afterwards maintain an action for the price, Coppin v. Walker, 7 Taunt. 237 ; S. C. 2 Marsh. 497 ; and if after a sale he rescinds the contract with the buyer, without the express consent of the owner, he will be liable to him in an action of assumpsit for the proceeds of the sale, Nelson V. Aldridge, 2 Stark. 435; and where he sold goods wi'ongfully under a fi. fa., without being expressly retained by the sheriff, held, that he could not maintain an action against the latter for any breach of an implied contract of indemnity, Farehrother v. Anslet/, 1 Campb. 343. 9. An auctioneer, like every other agent, is entitled to remunera- tion, but the extent of the remuneration is a matter of stipulation ; for where there is no contract, and no usage of trade, there will be no commission, Taylor v. Brewer, 1 M. & S. 290; and he has a lien for his commission and expenses, not only upon goods in specie, but also upon the proceeds, Drinkivater v. Goodwin, Cowp. 251 ; but he may forfeit his right to all remuneration, if, by his negligence or unskilfulness, no benefit accrue to his employer from the service per- formed, Capj) v. Topham, 6 East, 392 ; or if he so act as to deprive himself of his remedy against the parties, as if he sells goods belonging to both A. and B., as the goods of A. only, and suffers the buyer to AUCTIONS. 439 settle with A. for them, without giving him notice that he had any Auctions. claim on them, he cannot recover the proceeds from the huyer, Coppin V. Wallier, 7 Taunt. 243 ; S. C. 2 Marsh. 497. 10. The validity of the contract for a sale by auction depemls upon Validity of the many circumstances : First, as to the particulars of sale, whether they *^°"'"^t' are correct or otherwise, see post, Particulars of Sale ; and as to ^"^l"-^" arsand ' J ' ' conduions ot the conditions of sale, whether they have been complied Avith or sale, otherwise, see post, Conditions of Sale. Secondly, whether the sale has been properly conducted as to the Biddings at the biddings. The employment of puffers will vitiate the sale. See ^^'^" . Sugd. V. & P. Ch. I. s. 2. Where a sale by auction is advertised or stated by the auctioneer to be without reserve, the employment by the vendor of a puffer to bid for him, without notice, rendere the sale void, and entitles the purchaser to recover back his deposit from the auctioneer, Thornett v. Haines, 15 M. & W. 367. Where property is advertised to be sold " without reserve," such advertisement is understood to exclude any interference by the vendor, either direct or indirect, which can, under any possible circumstances, affect the right of the highest bidder, whatever may be the amount of his bidding, to be declared the purchaser; and any evasion of that engagement on the part of the vendor being a violation of his contract with the public, will disentitle him to the aid of a court of equity to enforce the sale. Therefore, where previously to a sale of a life in- terest, which was advertised to be " without reserve," the vendor entered into a private agreement with another person, that the latter should bid a certain sum at the auction and be the purchaser at that sum unless a higher sum were bid, a bill by the vendor for the specific performance against a third party who had been declared the pur- chaser at the auction, though for a much higher price, was dismissed, Hohinson V. Wall, 2 Phill. C. C. 372. Thirdly, whether the provisions of the Statute of Frauds have been Provisions of complied with, In the first place, contracts for sale by auction must, ^^^ Statute of to be valid, be in writing; but it seems to Y^ now settled that an ,-, \ . " ' _ C ontracts in auctioneer, being an agent lawfidly authorized by both parties to sign writing. a contract for them, his writing down the name of the purchaser on the sale bill opposite to the lot purchased, is a note or memorandum in writing sufficient to satisfy the intent of the statute, Emmerson v. Jleelis, 2 Taunt. 38 ; and so the signature of the auctioneer on the sale of goods has been held to be within the 17th section of the same statute, Iliiide v. Whitehouse, 7 East, 558. In the next place, it has been a question, whether on sales by auc- Contract entire tion the contract is to be considered as entire or separate; and this or otherwise. seems to have depended upon whether the enjoyment of the whole was essential to the enjoyment of any part. A\'hcre, therefore, a man purchased two lots at an auction, to one of which only a title could 440 AUCTIONS. Auctions. be made, this was held to be an entire contract, and that the purchaser might rescind the same, Chambers v. Griffith, 1 Esp. 150 ; 8. P. Gibson V. Spurrier, Peake's Add. Cas. 49; sed secus, where the lots are not so complicated with each other as to render those to which there is no title necessary to the enjoyment of the rest, Poole v. Shir- goold, 2 B. C. C. 118; >S. C. 1 Cox, 273 ; but in the case of a sale of goods by auction, the contracts for different lots at different sums have been held separate both at law and in fact, James v. Shore, 1 Stark. 426, " a complete bargain being made as to each article as soon as the auctioneer has signed his name to it," per Best, J., Bahlcij V. Parker, 2 B. & C. 37; *S'. C. 3 D. & Ry. 220; therefore, where several lots are knocked down to the same bidder, each of which is under 10/., although the aggregate is above that sum, yet the statute in such case does not apply, and neither writing or delivery is neces- sary, Emmerson v. Heelis, 2 Taunt. 38 ; and on the same ground it has been decided, that where each of several lots sold is under 20/., no stamp was necessary upon the agreement for each lot. Roots v. Lord Dormer, 4 B. & Ad. 77 ; S.C.I Nev. & Man. 667. As to the case of a sale by private contract, the current of opinion is to consider the contract entire, on the principle that the having the whole of the lots may be an inducement to purchase at all, Baldey v. Parher, recog- nizing Champion v. Slioi't, 1 Campb. 52. Conditions of Sale hy Auction, see posi, Conditions of Sale. No. CCXV. Notice {appointing a Bidder). No. CCXV. Notice of appointing a Person to hid for the Owner and his Acceptance of the Appointment. Take notice that (intended bidder) is appointed by {owner) the real owner of the estate goods or effects intended to be by you put up to sale by way of auction on the day of to bid at the sale for the use and behoof of the said (O.) And take notice also that the said C. D. has agreed accord- ingly to bid at the said sale for the use and behoof of the said E. F. Witness their hands this day of 185 {owner) Witness A. B. (biddei-) To Mr. Auctioneer. AUCTIONS. 441 No. CCXVI. Notice that a Steward or Agent intends to hid for the Owner. Take notice that (steward) the steward or known agent of {owner) of &c. owner of the estate &:c. intended &c. \_see above] [the said {S.) being actually employed in the management of the sale of such estate &c.] is about to bid at the said sale for the said (O.) As witness the hand (a) of the said {S.) the day of {steward) To Mr. Auctioneer. No. CCXVI. Bidding by Stctvard, ij'-c. No. CCXVII. Notice of appointing hy a Steward or Agent a Person to hid for the Owner. Take notice that {intended Udder) is appointed by {S.) the steward or known agent of {owner) the owner of the estate &c. intended &c. [the said {S.) being actually employed in the management of the sale of such estate &c.] to bid at the said sale for the use and behoof of the said ( O.) And take notice also that the said (7. B.) hath agreed and doth intend accordingly to bid at the said sale for the use of the said (O.) As witness the hands of the said (-S.) and (/. B.) the day of {steward) Witness A. B. {intended bidder) To Mr. Auctioneer. No. CCXVII. Notice {appointing Bidder hy Steward). {a) In this case it is sufficient if the notice is signed by the steward or agent only 5 but see the form following. 442 AUCTIONS. PARTICULARS OF SALE. 1 . Description of Property. 2. Description must he accurate. 3. Description must be clear. 4. Construction of the Particulars. Trifling Variation not material. Particular Words. ^'^ More or less." " Clear yearly Pent." Extent of the Acre. 6. What deemed to he Misdescrip- tion. 6. Effect of Misdescription. If fraudulent, ivill vitiate Sale, hut not if unintentional. Compensation. Description of property. Description must be accu- rate. Description must be clear. Sect. 1 . Particulars of sale are a description of the things to be sold, Avhich may be merely a verbal statement or in writing, or there mny be a plan annexed by way of explanation. It is commonly the business of the auctioneer to draw up such particulars, but con- sidering the importance of accuracy in a document of this kind, it seems advisable, where the property is of magnitude, and the title not perfectly clear, that the matter should not be left exclusively in his hands. 2. A vendor must not only be careful to guard against misdescrip- tion, but his description must be accurate ; for " if a person, however unconversant in the actual situation of his estate, will give a descrip- tion, he must be bound by that, whether conusant of it or not;" per Lord Thurlow, C, Culverley v. Williams, 1 Ves. jun. 213; and verbal declarations by the auctioneer, by way of explanation at tlie time of the sale, will not be admitted, Gunnis v. Erhart, 1 H. Bl. 289 ; Bradsliaw v. Bennett, 5 C. & P. 48 ; and this rule prevails in equity as to law, Jenhinson v. Pepys, cited 6 Ves. 330 ; and extends to the seller as well as to the purchaser, Higginson v. Clowes, 15 Ves. 515. So where the particulars of sale described the estate as held for three lives, and one dropped before the sale, and the auc- tioneer stated the fact, held that evidence of his statement could not be received, and that the auctioneer ought to have altered the par- ticulars, JBradshaw v. Bennett, uh. sup. The alteration in the particulars and conditions of sale which have been circulated must he in writing, and the auctioneer must require particular attention to the alteration and the purchaser's signature of the copy as altered, Manser v. Back, 6 Hai'e, 443. 3. Particulars and plans should be so framed as to convey clear information to the ordinary class of persons who frequent sales by auction ; therefore, where the particulars stated that a lot was to be subject to the same rights of way over the same as were then enjoyed under the existing leases of certain houses, and a plan which was AUCTIONS. 443 referred to disclosed one way but not another over the lot, which was Partiaihrs of also then existing,— held, that the contract was not binding on the "it purchaser, Bf/hes v. Blahe, 4 Bing. N. C. 4G3 ; 6 Scott, 320 ; S. C. 1 Am. 209 ; and the reading of a lease at the time of the sale will not excuse any misdescription, Jones v. Edney, 3 Campb. 284. So where an original lease contained a power of re-entry if certain trades were carried on, and the lessee granted underleases which contained no such stipulation, and upon a sale by an assignee of the lessee it was stated that the covenant in the original lease would be inserted in underleases to be granted to the purchasers, but did not state whether the covenant was inserted in the underleases already granted, — held, that the purchaser might recover his deposit on account of such omission, as none but a very careful person would have suspected that in underleases already granted that covenant had not been inserted, Waring v. Hogfjart, 1 Ry. & Mood. 39. So in equity specific per- formance will not be decreed against a purchaser at an auction where the particulars of sale were so vague and indefinite that a purchaser could not know what he was contracting for, and might be easily misled, Steward v. AUiston, 1 Mer. 26; Trower v. Newcombe, 3 Mer. 704; Pope v. Garland, 4 Yo. & Coll. 403. 4. A particular writing for the purchase of an estate, is not a Construction of writing within the Statute of Frauds, and therefore unless the party ^^^ particulars, purchased by it, or it was shown him at the time of the purchase, — held, that he could not compel a specific performance if it contained more than the words of the conveyance would in strictness carry, Cass v. Waierhouse, Prec. Chanc. 29. A trifling variation in the description of an estate sold by auction. Trifling varia- is not material if the transaction be fair, Calcraft v. lloebuch, 1 J'J^ ""^ '"«''^- Ves. jun. 221 ; and a purchaser will not be entitled to claim a part of an estate which, though answering to the general description in the advertisement, was not included in a more particular description, Calverley v. Williams, 1 Ves. jun. 210. As a rule, the words usually employed in describing the quantity Particular " containing by estimation acres, more or less," import that the p^iess.""'"'^*^ precise quantity is not warranted; and where there is considcraWy less than was stated, the purchaser will be entitled to an abatement, Jim V. Buckley, 17 Ves. 394; and see Portinan v. Mill,2 Russ. 571. ^^ By tlie words " clear yearly rent," is to be understood clear of all "^^^J*",^'' >^'"' 'x outgoings, incumbrances, and other extraordinary cliargcs, not such as arc according to the custom of the country, as tithes, poor rates, church rates, &c., which are usual charges on the tenant. Formerly acres were either customary, that is, according to the Extent of the measure of the country, or they were by statute ; and although for " "" the most part lands were sold according to the latter measure, Wing V. Earle, Cro. El. 2(57 ; Morgan v. Tedcastle, Poph. 55 ; yet where a man agreed to convey a ceitaiu number of acres of land wliich were acre. 444 AUCTIONS. Particulars of kiiovvn by estimation, there the acres were taken according to the '^"^^' estimation of the country where the land lay, Some v. Taylor, Cro. El. 665; hut now by 5 & 6 Will. 4, c. 63, all customary measures are abolished. See Sugd. V. & P. Ch. VI. s. 3. What deemed a 5. There may be a misdescription in the particulars, either by misdescription, g^^ting things differently from what they really are, or by omitting to state what ought to be known ; as stating the property to be one mile from a borough town, which proved to be four miles, Nurfolk (Duke) V. Woiiley, 1 Carapb, 337 ; or describing a public-house as "a free house," when by a covenant in the lease it appeared that the lessee was obliged to take his beer from a particular brewer, Jones v. Edney, 3 Campb. 285 ; or stating in general terms that there was a covenant in the lease against carrying on any offensive trade, instead of enumerating the particular trades contained in the covenant, Fliyht V. Booth, 1 Bing. N. C. 370 -, S. C. I Scott, 170 ; or omitting to state verbally, or to show by a plan a particular right of way over a particular lot. Dykes v. Blake, 4 Bing. N. C. 463; or omitting to mention that notice had been given by the landlord of his intention to enter unless the pi-emises were jnit in repair, Stevens v. Adamson, 2 Stark. 422 ; or omitting to state that a house, which formed part of the premises demised by a lease, had been pulled down before the sale, Gramjer v. Worms, 4 Campb. 83 ; or stating that the goods to be sold belonged to one man, when in fact they belong to another, Coppiii v. JValker, 7 Taunt. 237 ; Coppin v. Craig, lb. 243. See Flight v. Barton, 3 My. & K. 282 ; King v. Wilson, 6 Beav. 124 ; Dykes v. Blake, 4 Bing. N. C. 463. If the property be held by underlease, or other property is comprised in the lease, the fact should be stated, otherwise the vendor caimot compel specific performance, Blake v. Phinn, 3 C. B. 976 ; Law v. Urlivin, 16 Sim. 377 ; 31adeley v. Booth, 2 De G. & Sm. 718. Effect of mis- 6. An error in the description of the property to be sold by auction description, if jj-^g^y ]^q s,\\c\\ as either to vacate the contract altogether, or to make it vitiate the'sale, a subject for compensation. A misdescription wilfully introduced into the particulars, whether material or not, will vitiate the sale, Norfolk (Duke) V. Worthy, ub. sup. ; for if particulars of sale by auction are calculated to entrap persons, the sale is void, Robinson v. Musgrove, but not if un- 8 C. & P. 469 ; but if the error be unintentional, and there is, as is intentional. usually the case in conditions of sale, a stipulation providing against such errors, it will at law be cured by the conditions. Leach v. 3Iul- Compensation. lett, 3 C. & P. 115 ; but " equity will enforce a sale with a compen- sation for a slight unintentional misdescription, although there is no such condition, and will not assist the seller, where there is such a condition, if the misdescription be an important one," 1 Sugd. V. & P. p. 30, llth ed., citing Stewart v. Allerton, 1 Mer. 26 ; Powell v. Doubble, MS. V. C. 15 June, 1832. The mere exhibition of plans at the sale, if the contract is silent on AUCTIONS. 445 the subject, do not afford a fjuarantec tliat improvements exhibited on Particulars of them will be carried out, Feoffees of Ileiiofs Jloypital v. Gibson, '!J: 2 Dow. 301 ; Squire v. Campbell, 1 My. & Cr. 459 ; Randall v. JIall, 4 De G. & Sm. 34:3. See a7ite, p. 442. See po.s/, Conditions of Sale. No. CCXVIII. N„.ccxv.n. Particulars of Sale by Auction (a) of a Freehold Estate (b). Particulars of J ^ ^ ' •> Sale. The several freehold pieces or parcels of land or ground situate Freehold. at in the county of containing by estimation acres (c) more or less called or known by the several names of [here set out the particulars'] and now in the occupation of [specify the several tenants, if more than one, to each piece of land, and state the nature and terms of the tenancy.'] This property is subject to a certain mortgage in fee [or " for (a) In the advertisements of sales by auction, it should be stated that the estate will be sold by auction at the place^j^nd time fixed, "unless previously sold by private contract, in which case notice of the sale will be immediately given to the public." If the particulars describe the property as " free from all incumbrances," it will be deemed a misdescription, and will vitiate the sale, if it appears after- ward that there is an annuity charged upon it, be it ever so small, Gunnis v. Er/iart, 1 H. Bl, 289. If therefore the property be charged with an annuity, say, " This property is subject to a yearly sum of £ issuing out of the same, and jjayable to {annuitant) who is now in the year of his age during the term of his natural life." {b) If it be a remainder or reversion, say, " The remainder or reversion of (reversioner) expectant upon and to take effect in possession immediately after the decease of (teruint fur life) of and in all &c." If it be an advowson, say, "The advowson donation or perpetual right of patronage and presentation of in and to the rectory or parish and parish church of in the county of (and all glube lands &c." if any appurtenant to the advowson). If it be a rent-charge, say, " The yearly rent-charge or annual sum of £ issuing out of and chargeable upon all the lands &c. situate at in the county of and payable to the said (vendor) for and during the term of his natural life under &c." {c) The acres were formerly distinguished as they were statute or customary, which, since the 5 & 6 Will. 4, c. G;J, is unnecessary, see supra, sect. 4. 446 AUCTIONS. No. CCXVIII. term of years"] for securing the principal sum of £ and Particulars of interest [or " this estate is subject to an annual rent charge of Freehold. £- in Hcu of titlics," or " tithe free,"] as the case may he. [ Where the property is copyhold, state whether the fines are certain or arbitrary, and the amount of the quit rents.~[ No. CCXIX. Leasehold. No. CCXIX. Particulars of Sale of a Leasehold Estate (a). A messuage or tenement with the yard garden and outbuild- ings &:c. situate &:c. and now in the occupation of The premises are held for the residue of a term of years under a lease dated &c. subject to a rent of £ and under the common usual covenants (h). AWARDS. See ante. Arbitration, pp. 331 — 343. BARGAINS AND SALES. Definition of a Bargain and Sale. What passes by a Bargain and Sale. Consideration. Operative Words. Requisites of a Bargain and Sale. Inrolment. Operation. Bargains and Sales of Goods. Definition of a Sect. 1. A bargain and sale is defined to be a contract, in con- sale°^'" ^' sideration of money, passing an estate in lands, tenements, and here- (a) As to the effect of misdescription of leasehold estates, see ante, Par- ticulars OF Salk, Pref. sect. 5, p. 444. {b) A covenant in a lease to pay the laud tax and sewer rate has been held to be a common and usual covenant, and that the purchaser of a lease con- taining such a covenant was not at liberty to rescind the contract on the ground of misdescription, Bennett v. Womack, 7 B. & C. 627 ; S. C.\ Man. & Ry. 644 ; and the same rule prevails in equity, Barraud v. Archer, 2 Sim. 433; S. C. 2 Russ. & My. 751. As to the omission of unusual covenants, see supra, sects. 5, 6, p. 444. BARGAINS AND SALES. 447 dilaments, by deed indented and enrolled, 2 Inst. 672. The convey- Bargains and ance of lands by bargain and sale derives its operation partly from " ''^' tlie doctrine of uses at common law, but more particularly from the Statute of Uses, 27 Hen. 8, c. 10, which executes all uses that are raised. As a use is the basis of the deed, no person can make a bar- gain and sale who is incapable of being seised to a use. A corporation cannot bargain and sell, because no use can be raised on their seisin, 10 Rep. 24 ; Gilb. Us. 285. The use cannot be limited on a bargain and sale to any but the bargainee, as the effect of the bargain and sale is only to raise a use, and a use cannot be limited upon a use, Dy. 155 ; Poph. 81 ; so that this assurance does not admit of the reservation of general powers under which the legal estate can be vested in the appointee. The estate of the bargainee, when executed, may be made subject to trusts ; but if it be intended that a use should be executed to any other person than the vendee, some other mode of conveyance should be adopted. The conveyance by bargain and sale is now seldom used, except by commissioners or others under an act of parliament, or trustees under a will or otherwise, in which case the baro-ain and sale is considered as a common law conveyance. Bar- gains and sales of an use must be carefully distinguished from bargains and sales by executors under a naked authority to sell con- tained in wills, or by other parties under an authority given by an act of parliament. Such bargains and sales pass a seisin at the com- mon law. In these cases enrolment is only necessary when it is prescribed by the power to be executed ; and uses may be declared upon the seisin of the bargainee, 3 Prest. Abstr. 90, 112 ; 2 Id. 260; 3 Prest. Conv. 483. 2. By this kind of instrument, any freeholds of inheritance, whether What passes in possession, reversion, or remainder, may be conveyed ; so, likewise, j^,^jf 5^1"^""^ whatsoever is capable of being limited to a use, as advowsons, tithes, commons, rents, profits of courts, &c. But no property can be bar- ofained and sold which is not in esse. So if a man convey his lands to another in fee with a right of way over other lands, the right of way does not pass, Cro. Jac. 190 ; 2 Co. 74 ; Sand. Us. 74. A man possessed of a term for years cannot bargain and sell it so that it may be executed by the statute ; but a man seised of a freehold may bargain and sell it for years, Gilb. Us. 85. 3. To raise a use upon a bargain and sale, there must be some Consideration, consideration of money, or money's worth as a horse rent, &c., Cro. Eliz. 394; 1 Co. 176 ; but the smallest consideration, as 5s., or even a penny, is sufficient, Sheph. Touchst. 222. The operative Avords in Operative a bargain and sale are, "bargain and sell " But any other words, which, upon valuable consideration, would have raised a use of lands, &c. at common law, will amount to a bargain and sale within the statute, as if a man covenant to stand seised to the use of another, Cro. Eliz. 101 ; 2 Inst. 672 ; 2 Sand. Us. 47. 448 BARGAINS AND SALES, Bargams and Sales. Requisites of a bargain. Inrolment. Operation. Bargains and sales of goods. 4. By tlie 27 Hen. 8, c. 19, a bargain and sale must be by deed indented, and not by deed poll, nor by print or stamp ; and the writing must be upon parchment, 2 Inst. 672 ; 3 Leon. 16. The deed must likewise be inrolled on parcliment only within six lunar months from the date, Dy. 218 ; 2 Inst. 273, 274; Sheph. Touchst. 223. A bar- gain and sale by a tenant in tail, under the 3 & 4 Will. 4, c. 74, is valid if inrolled within the time prescribed by that act, although not inrolled according to the statute 27 Hen. 8, e. 19 ; see 3 & 4 Will. 4, c. 74, s. 41. By the 5 Eliz. c. 26, bargains and sales of lands may be inrolled in the counties palatine ; by the 5 Ann, c. 18, within the West Riding of York ; and by the 6 Ann. c. 35, s. 16, within the East Riding of York, and Kingston-upon-HuU. By the 10th Ann. c. 18, s. 3, a copy of the inrolment of bargains and sales examined with the inrolment, and signed by the proper officers, and proved upon oath to be a true copy of such inrolment, shall be of the same effect as if the bargain and sale was produced. The Statute of Inrolments extends to barc'ains and sales of inheritances and freeholds only, and not to bargains and sales for years, which are good without inrolment. 5. A bargain and sale is an innocent conveyance, and operates only on what the grantor may lawfully convey, 2 Sand. Us. 54. It does not work a discontinuance, create a forfeiture, nor destroy contingent remainders. A feoffment made after the 1st October, 1845, has not any tortious operation, 8 & 9 Vict. c. 106, s. 4. 6. There may be bargains and sales of goods and chattels as well as of lands, but they need none of the formalities prescribed by the statute. But terms for years must, l)y the Statute of Frauds, be now in writing, Sheph. Touchst. Prest. Ed. 224. No. CCXX. Copyholds. No. CCXX. Bargain and Sale of Copyholds to a Purchaser under a Power given to Executors. This Indenture made the day of in the year of our Lord between A. B. of &:c. and C. D. of (fee. [executors named in and appointed by the last will and testa- ment of Ji. F, late of &c, deceased] of the one part and G, H. of &€, of the other part Whereas at a court baron or customary cottrt holden for the manor of in the county of on the day of the said E. F, was admitted tenant on the surrender of S, M. of &c. to certain customary or copy- hold hereditaments lying within and holden of the same manor and including the messuages lands and hereditaments hereinafter r.ATJGAlNR AND SALES. 449 described and intended to be hereby bargained and sold or No. CCXX. otherwise assured with their appurtenances to hold to him the Copyholds. said E. F. and his heirs according to the custom of the said manor of And tchereas the said E. F. in and by his last will and testament in writing bearing date the day of gave and devised [devise of freeholds to trustees in fee upon trusts for sale'] And the said testator did thereby authorize and em- power the said A. B. and C. D. and the survivor of them at any time after his decease [to sell copyholds and declaration that trustees' receipts should be sufficient discharges ^"c] And the said testator by his said will appointed the said A. B. and C. D. executors thereof And whereas the said E. F. departed this life on the day of without having revoked or in anywise altered his said in part recited will as far as related to his real estates so thereby devised and authorized and directed to be sold as aforesaid and the same was duly proved by the said A. B. and C D. in the Court of Probate Principal Registry on or about the day of A?id whei^eas the said A. B. and C. D. by virtue of the said power or authority in that behalf given to them by the said in part recited will of the said E. F, deceased did lately contract and agree with the said G. H, for the sale to him of the messuages lands and hereditaments hereinafter de- scribed and the customary fee simple and inheritance thereof in possession free from incumbrances (except such fines rents customs and services as are payable and to be performed to the lord or lady lords or ladies of the manor of aforesaid for the time being for and in respect of the same premises respec- tively) at or for the price or sum of £ Now this Indenture witnesseth That for carrying into effect the said recited contract and for and in consideration of the sum of £ of lawful money of Great Britain to the said A. B. and C. D. in hand well and truly paid by the said G. H. at or before the sealing and delivery of these presents the receipt whereof the said A. B. and C. D. do hereby acknowledge and from the same and every part thereof do acquit release and discharge the said G. H. his executors administrators and assigns and every of them for ever by these presents They the said A. B. and C. D. in further pur- suance and exercise of the said power or authority in this behalf given to them by the said in part recited will of the said E. F. deceased, and of all and every other powers and authorities power and authority in anywise enabling them hereunto do •.md each of them doth by these presents bargain and sell limit ap- VOL. I. G G 450 BARGAINS AND SALES. No. CCXX. point convey and assure unto the said G. H. his heirs and Coiiyhoids. assions All &c. together with all erections &c. and appurtenances whatsoever to the said hereditaments and premises belonging or in anywise appertaining and the i-eversion and reversions re- mainder and remainders rents issues and profits thereof To have and to hold all and singular the said customary or copyhold messuages lands hereditaments and premises hereby bargained and sold limited and appointed or otherwise assured or in- tended so to be with the appurtenances thereof unto and to the use of the said G. H. his heirs and. assigns for ever But nevertheless according to the custom of the said manor of and subject to the rents fines customs and services payable and to be performed to the lord or lady lords or ladies of the same manor for the time being for and in respect of the same premises or any part thereof [Several covenant by A. B. and C. D. that they had not incumbered, see post, p. 452] In witness (fee. No. CCXXI. No.CCXXI. Of Copyholds by Bargain and Sale of Copyholds by Trustees for Sale under a Trustees. Will, the Parties benef daily interested covenant for Title. Ohs. If a copyholder by his will gives a bare authority to his executors or trustees to sell, they may do so without being admitted, and the lord will be bound to admit the vendee on the payment of one fine only, 2 Wils. 400 ; Rex v. Lord of the Manor of Oundle, 1 Ad. & E. 283 ; White v. Vitty, 2 Russ. 496. This Indenture made &:c. Between ( Trustees^ trustees of and under the last will and testament of A. I. late of deceased of the first part F. H, and K. I. and A. his wife of the second part [the parties beneficially interested'^ and {Purchaser) of &c. of the third part Whereas A. I. late of deceased widow being at the date of her will hereinafter in part recited and at her decease seised and possessed of or well entitled unto the copyhold messuage or tenement and premises herein- after described with their appurtenances for an estate of in- heritance according to the custom of the manor of D. in the county of made her last will and testament in writing bearing date &c. and duly executed and attested and thereby among other things directed that the said {T.) and the sur- Recital of seisin and will. BARGAINS AND SALES. 451 vivor of them should as soon as conveniently might be after No. ccxxi. lier decease by liublic sale or private contract sell and dispose of ^J CopyiwUis by *' ' * 111 Inistefs. all that her copyhold messuage &c. with the garden and appur tenances thereunto belonging and should stand possessed of the money to be produced by such sale [after deducting the expenses thereof] In trust to divide the same between her two daughters the said F. H. widow and reUct of the then late P. H. and the said A.I. the then and now wife of the said K. I. their executors administrators and assigns for their respective sole use and benefit exclusively of their husbands And the testatrix did thereby direct that the receipt and receipts of the said (T.) should be a good and sufficient discharge and good and sufficient discharges to the purchaser or purchasers of all or any part of the said copy- hold messuage or premises And whereas the said A. I. departed this life on or about the day of without revoking or alterino- her said will leavino; the said F. H. and A. I. her sur- viving and the said (T.) proved the said will in the Prerogative Court of the Archbishop of Canterbury And whereas the said Contract for (T.) in pursuance of the trust reposed in them by the said in ])art recited will of the said A. I. deceased and with the privity con- sent and approbation of the said F. H. and K. I. and A. his wife testified by their being respectively parties to and severally seal- ing and delivering these presents have contracted and agreed with the said (P.) for the absolute sale unto her of the said copyhold messuage or tenement and premises hereinafter de- scribed free fiom all incumbrances except as hereinafter men- tioned at or for the })rice or sum of £ Now this Indenture Testatum. witnesseth That in pursuance of the said agreement and also in consideration of the sum of £ of &c. to the said {T.) as trustees as aforesaid in hand [with the like privity consent and approbation of the said F. H. and K. 1. and A. his wife testified as aforesaid] well and truly paid by the said (P.) at or before the seahng and delivery hereof the receipt of which said sum they the said {T.) do hereby respectively acknowledge and that the same is the full consideration money for the absolute purchase of the said messuage or tenement hereditaments and premises with their appurtenances free from incumbrances except as here- inafter excepted and of and from the same sum and every part thereof and all claims and demands in respect thereof they the said {T.) and also the said F. II. and K. I. and A. his wife do and each and every of them doth release and for ever discharge G G 2 452 BARGAINS AND SALES. No. CCXXI. the said (P.) her heirs executors administrators and assigns of Coptjhoids by and everv of them by these presents They the said (T.) in pur- — ' . suance exercise and execution of the power and trust in them reposed in and by the said in part recited will of the said A. I. deceased and by virtue of all and every other power and authority vested in or given to them Do and each of them doth by these presents so far as they can or lawfully may according to the custom of the said manor bargain and sell and the said F. H. and K. I. and A. his wife do and every of them doth hereby remise and release unto the said (P.) her heirs and assigns All that &c. [^description of parcels] And also all houses &c. [general words] To have and hold All and singular the copyhold messuages lands and hereditaments hereby bargained and sold or intended so to be with the appurtenances unto and to the use of the said (P.) her heirs and assigns for ever accord- ing to the custom of the said manor under and subject to the rents fines customs and services of right due and accustomed to be paid and performed to the lord or lady for the time being of the said manor in respect of the same messuages or Covenant by any part thereof Awht title or interest by from through under or in* trust for thera or any of them or the said testator (A, I.) deceased And free from in- that free and clear and freely clearly and absolutely or other- cumi^ances. wise by the said F. H. and K. I. and A. his wife some or one of them their or some or one of their heirs executors or admi- nistrators well and effectually saved defended kept harmless and indemnified from and against all former and other gifts grants bargains sales mortgages freebench and right and title of freebench wills debts legacies forfeitures estates titles charges and incumbrances whatsoever made done committed executed or knowingly suffered by the said F. H. and K. I. and A. his wife or any of thera or the said testator A. l. deceased or any person or persons cluiming or to claim by from through 454 BARGAINS AND SALES. No. CCXXI. Of Copyholds by Trustees. For further as- surance. under or in trust for them or any of them (the rents and services due and of right accustomed to be paid and performed in re- spect of the said premises always excepted) And moreover that they the said F. H. and K. I. and A. his wife respectively and every person havirtg or claiming or who shall or may at any time or times have or claim any estate right title or interest at law or in equity in to or out of the said messuage lands and hereditaments hereby bargained and sold or intended so to be or any part thereof by from through or under them or any of them or the said testator (A. I.) deceased shall and will from time to time and at all times hereafter at the request costs and charges of the said (P.) her heirs or assigns make do and execute or cause to be made done and executed all such further and other acts deeds surrenders and assurances whatsoever for the better and more effectually or satisfactorily surrendering and assuring the same messuage lands and hereditaments and every part thereof with their and every of their appurtenances to the use of the said (P.) her heirs and assigns for ever according to the custom of the manor of aforesaid Subject to the rents and services therefore due and of right accustomed as by the said (P.) her heirs or assigns or her or their counsel in the law shall be reasonably advised devised and required In witness kc. No. CCXXII. Freeholds and Copyholds. Recital of mortgage. Death and will of mortgagor and mortgagee. Devise to exe- cutors in trust to sell. No. CCXXII. Bargain and Sale of Freehold and Copt/hold Hereditaments hy Executors under a Will of a Mortgagor, with Release of Dower hy the Widow. This Indenture made &c. Between {vendors) executors and trustees under the will of {mortgagor) deceased of the first part {executors) executors and trustees of {mortgagee) of the second part {purchase?-) of &c. of the third part A. L. widow of the said {mortgagor) of the fourth part and {sub-purchaser) of &c. of the fifth part Whereas by indenture bearing date on or about the day of &c. [mortgage hy demise of freeholds and copy- holds'] And whereas &c. [recite death and will of mortgagee, leaving the executors parties of the second jmrt] And whereas &c. [recite prohate oficill] And whereas the said {mortgagor) being so seised of and entitled to the said freehold hereditaments and being also seised or possessed of the said copyhold hereditaments BARGAINS AND SALES. 455 for an estate of inheritance to him and his heirs according to the ^'o- CCXXII. custom of the said manor of and havins; duly surrendered ^'"'j''"''/'* "'"' , . , Copyliolils. the said copyhold hereditaments to the uses of his will by his last will and testament in writing duly executed and attested for the devise of lands bearing date Sec. a])pointed the said {ven- dors) executors of his said will and directed them as soon as conveniently might be after his decease to sell and dispose of all his lands &c. for the best price that could be obtained for the same either by public auction or private contract as they should think fit Aiid the said testator did declare by his said will that the receipts of the said {executors) should be sufficient discharges for the purchase monies and that the purchasers should not be obliged to see to the application or be answerable for the misapplication or nonapplication of the same And Contract of whei'eas the said {executors) in pursuance of the power given to them by the said will have contracted with the said {purchaser) for the sale to him of the said freehold and copyhold lands hereinafter described and hereby bargained and sold or intended so to be and the fee simple and inheritance thereof subject to and charged with the payment of an annuity of £ to {annuitant) the mother of the said {mortgagor) for her life but free from all other incumbrances whatsoever at or for the price of £ but no conveyance hath yet been executed in pur- suance of the said agreement And whereas the said {purchase?-) hath agreed with the said {suh-purchaser) to give up to him the said {suh-purchaser) the benefit of his said contract And whereas the principal sura of £ only remains due to the said {executors of mortgagee) under and by virtue of the herein- before recited indenture all interest in respect thereof having been paid and satisfied up to the day of the date of these pre- sents And it Ijath been agreed that the said sum of £ shall be discharged out of the said purchase-money And that the said term of years now vested in the said {trustees of the term) for securing the payment of the said sum of £ shall be assi"-ned and surrendered in manner hereinafter men- tioned And whereas the said fine covenanted to be levied by Anrreemcnt to the said [mortgagor) and A. his wife in and by the said in part '■^'''^*'«^" ^"*^'-'- recited indenture was never levied and said A. now the widow and relict of the said {mortgagor) hath agreed to join in these presents and release her dower of and in the said freehold lands and hereditaments hereby bargained and sold or iiitcnided so to be Now this Indenture witnesseth Thai in oiirsuancc iiiid jxi- 'i'«-st;.i.im .r to ' the IrecUolus. 456 BARGAINS AND SALES. No. CCXXII. formance of the said agreement and in consideration of the sum Frrefioids and ^f £ to the said (executors of mortgagee) by the said {suh- °^'''"' purchaser) immediately before the execution of these presents at the request and by the direction of the said (executors of mort- gagor) testified by their severally being parties to and executing these presents and in full satisfaction and discharge of all money due to them the said {executors of mortgagee) as such executors as aforesaid which sum they the said (executors of mortgagee) do hereby respectively acknowledge and of and from the same and every part thereof do respectively acquit release and discharge the said (executors of mortgagor) and each of them their and each of their heirs executors administrators and assigns And also in consideration of the further sum of £ being the residue of the said sum of £ to the said (executors of mortgagor) at the same time paid by the said (sub-purchaser) with the pri- vity and consent of the said (purchaser) testified by his being a party to and executing these presents the payment and receipt of which said sums of £ and £ making together the said sum of £ and that the same are in full for the absolute purchase of the said lands tenements and hereditaments respectively hereby bargained and sold or intended so to be and the fee simple and inheritance thereof subject and charged as aforesaid but free from all other incumbrances whatsoever they the said (executors of mortgagor) do hereby respectively acknow- ledge and of and from the same do hereby respectively acquit &c. the said (sub-purchaser) and the said (purchaser) and each of them their and each of their heirs kc. And also in consideration of the sum of £ to the said (purchaser) at the same time paid by the said (sub-purchaser) the receipt of vi^hich sum of £ he the said (jmrchaser) doth hereby acknowledge and of and from the same and also of and from the said sums of £ and of £ so paid by the said (sub-purchaser) as aforesaid doth hereby &c. They the said (executors of mort- gagor) pursuant to and by force and virtue and in exercise and execution of the power or authority given to and vested in them in and by the said recited will of the said (mortgagor) deceased and of every other power and authority in anywise enabling them or either of them in this behalf and at the request and by the direction of the said (purchaser) testified as aforesaid Do and each of them doth by these presents bargain sell release limit and appoint and they the said (executors of mortgagee) for the purpose of surrendering and extinguishing the said term BARGAINS AND SALES. 45' of years so vested in them as aforesaid and at the request No. ccxxil. 'freeholds an Copi)l(ul(is. and by the direction of the said {executors of mortgagor) testified freehold.^ mid as aforesaid do and each of them doth hereby assign and also surrender and release And the said (irldow) for the purpose of releasins: and extinouishino" all her dower right and title of dower and thirds and other right and interest of her the said {icidow) of and in the said freehold lands and hereditaments hereby bargained and sold or intended so to be Doth hereby remise release and quit claim unto the said {sub-purchaser) and his heirs All such and so many and such part and parts as is or are freehold of and in All &:c. [parcels] And of and in all houses outhouses [general words] And all the estate &c. To Habendum. have and to hold all such part and parts as are freehold of and in the lands and other hereditaments hereinbefore described with their and every of their rights members and appurtenances [Subject nevertheless to the payment to the said {annuitant) of one annuity or yearly rent charge of £ during her life and to the usual powers and remedies for recovering and enforcing the payment of the same which said annuity or yearly rent charge was granted or limited to the said {annuitant) by a certain indenture bearing &:c. and purporting to be a settlement made previous to the marriage of D. the elder and M. his wife then M. H. spinster] unto the said {sub-purchaser) his heirs and assigns for ever To the only use and behoof of the said {sub-purchaser) his heirs and assigns for ever And this Indenture further ivit- Further tcsta- vcsseth That in pursuance and further performance of the said copyholdJ'"^ recited agreement and for the considerations hereinbefore ex- pressed they the said {executors) at the like request and by the like direction of the said {purchaser) testified as aforesaid Do and each of them doth bargain and sell unto the said {sub-pur- chaser) his heirs and assigns All such and so many and such part or parts of the said lands and other hereditaments hereinbefore described as is or are of copyhold or customary tenure and holden of the said manor of by copy of court roll and of and in every part and parcel of the same with their and every of their rights members and appurtenances To have and to hold Maheiu'um. all such part and parts of the hereditaments hereinbefore de- scribed as are copyhold and all and singular other the copyhold hereditaments and premises hereinbefore bargained and sold or intended so to be with their and every of their rights members and appurtenances unto and to the use of the said {snh-pur- chaser) his heirs and assigns for ever at the will of the lord [or 458 BARGAINS AND SALES. No. CCXXII. " lady"] of tlie said manor according to the custom of the same Freeholds and g^j^^j jjy ^nd luider the rents suits and services therefore due and of right accustomed to be paid and performed [Several cove- nants hy (executors of mortgagor) {purchaser) {executors of mort- gagee and trustees of term) and {widow) that they have done no act to incumber, see ante, p. 452] In ivitness &c. BARGAINS AND SALES OF TIMBER. 1. Liberty to cut and carry away. 2. Timber Personal Estate or other- wise. 3. Sale of Timber by Tenant in Tail. 4. Inrolment of Bargain and Sale. 5. Stamp. Liberty to cut Sect. 1. Although on a sale of trees the liberty to cut and carry and carry away, them away is implied by law, yet it is prudent that the intention of the parties should be expressly declared as to the extent of the power to be granted to the purchaser. Timber per- 2. If the vendor of timber, who is owner of the estate in fee, do sonal estate or j^^j intend that the produce of the sale should e^o to his personal otherwise. . , , • ^ ro ^ • 1-1 representatives, a declaration to that eitect must be inserted in the bargain and sale, otherwise it has been held, that all timber which is agreed to be sold, and is cut after the vendor's death, will be part of his personal estate, see Wms. Executors, Pt. II. b. 11, ch. 2, s. 2. Sale of timber 3. A tenant in tail cannot charge the estate after his death ; if, by tenant in therefore, he affree for the sale of trees m-owinii^ on the inheritance, tail. ' o o D ^ and die before they are actually severed, the vendee will not be per- mitted to fell one tree, but the heir shall have all the trees that are not severed, as part of the inheritance, Plowd. 259; Perk. sect. 58; Liford's Case, 11 Co. 50; Poph. 194. Some provision, therefore, for the death of the tenant in tail may be necessary in a contract for the sale of the growing timber by him. Inrolinent of 4. A bargain and sale of timber need not be inrolled, unless it be bargain :uk1 conveyed with the freehold lands, 11 Co. 52, 176. See Agreement FOR Sale op Timber, ante, pp. 174 — 176. Stamp. 5. As to the stamp, see Grants. BARGAINS AND SALES. 459 No. CCXXIII. No-CCXXlII. Bargain and Sale of Timber. Of Timber. TJiis Indenture Sec. Between (Vendor) of kc of the one part Testatum. and {Purchaser) of the other Witnesseth That in consideration of the sum of £ to the said (V.) paid by the said (P.) at &c. the receipt whereof &c. He the said (F.) Doth hereby orant bargain and sell unto the said (P.) his executors admi- nistrators or assigns All and singular the trees of oak ash birch sycamore and other trees as they are set out and marked for sale standing and growing in the places as hereinafter mentioned \ parcels] Together with full (a) liberty power and authority for Liberty to cut , -r-. 1 . 11 p ii down, &c. the said (P. ) his servants agents and workmen trom the day of until the day of at all reasonable times to fell cut down grub up saw and work up the said trees and wood And also to lay and place the bark of the oak trees in convenient places for drying And to have free ingress and egress with or without horses waggons carts and carriages to enter into and upon the said premises for the purpose of taking and carrying away the said trees and wood with the bark of the oaks And also to dig and make saw pits in con- venient places in the said grounds and to cut turf and get such sods and earth as may be necessary for working and converting the said wood into charcoal doing as little damage or spoil thereby as may be and keeping in or near such parts of the said premises as shall be marked out by the said (F.) or his steward or a<'ent To have and to hold the said timber and all Habemlum. and singular other the premises hereby bargained and sold or in- tended so to be with their appurtenances unto the said (P.) his executors administrators and assigns absolutely to and for his and their proper use and benefit and as his and their own goods and chattels And the said (F.) doth for himself his heirs exe- Covenants from cutors and administrators hereby covenant with the said (P.) his ""-'"' '"■• executors administrators and assigns that he the said (F.) at the time of sealing and delivery of these presents hath in himself good right full power and lawful and absolute authority to grant Good right to bargain and sell the said timber and other trees hereby bar- "•-' gained and sold or intended so to be And that he the said {P.) For (lui.i cn- his executors administrators and assigns from time to tinu' mid J">""" • (.-/) As to this clause, see sect. 1. 460 BARGAINS AND SALES. No. CCXXIII. at all times hereafter within the sjjace of months next Of Timber, after the date of these presents shall and lawfully may have- hold take receive and enjoy all and singular the timber and other trees and premises hereby granted bargained and sold or intended so to be with their and every of their appvu'tenances and fell hew and carry away the same without any manner of hindrance interruption claim or demand whatsoever of from or by him the said (F.) his heirs executors administrators or assigns or any person or persons claiming by from through under or in Covenants from trust for him or them And the said (P.) for himself his heirs pure aser. executors and administrators doth hereby covenant with the said (F.) his executors and administrators that he shall and will within the space of months from the date of these pre- To clear away sents fell hew and cut down the said oak ash and other trees timber, &c. ^^^^ draw and take them away with the boughs lops tops and bark thereof And shall and will stock up around the body of the tree at the distance of at least feet all the roots belong- ing to the said trees for the purpose of clearing the ground Fill up saw- And also shall and will at his or their own costs and charges fill ^''^' ^' up all such saw pits as shall for the purposes aforesaid have been made by him or them And also mend and repair all the hedges and fences in and about the said lands in all such places as shall be broken or otherwise damaged or destroyed in felling hewing or carrying away the said timber («) In witness &c. Bargains and Sales of Goods. Ohs. 1. By the 29 Car. 2, c. 3, s. 17, no contract for the sale of any goods, wares and merchandizes, for the price of \Ql. sterling or up- wards, shall be allowed to be good, except the buyers shall accept part (fl) If the vendor be tenant in tail, see supra, sect. 2, and if it be so agreed, add, "And it is hereby further agreed and declared by and between the parties hereto that in case the said (F.) shall happen to die before the day of next ensuing and the said (P.) shall be prevented from felling and severing the said trees Then and in such case the executors or ad- ministrators of the said (V.) shall pay or allow unto the said ^P.) his exe- cutors administrators or assigns the value of such or so many of the said trees as shall then remain unfelled and unsevered after the rate at which the same are hereby sold." BARGAINS AND SALES. 461 of the goods so sold, and actually receive the same, or give something Of Goods. in earnest to bind the bargain, or in part of i)aynient ; or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such conti-act, or their agents lawfully thereunto authorized. This provision is extended by 9 Geo. 4, c. 14, s. 7, see ante, p. 78. 2. A bargain and sale of goods, as a separate deed, is commonly called a Bill of Sale (see Bill of Sale) ; but a bargain and sale or assignment of fixtures is frequently inserted in leases, or the assign- ments of leases, see Index to Precedents. BEQUESTS, See post, Wills. BILLS. BILL OF CREDIT, See post. Letters. BILLS OF LADING, BILLS OF SALE OF SHIPS, See post. Shipping. 462 BILLS OF SALE. BILLS OF SALE OF GOODS. Foi^ni of a Bill of Sale. Absolute or Conditional. Effect of Possession or the Want of it. Conditional Bills of Sale by way of Mortgage. What will pass hy Bill of Sale. Poicer to seize future Property. Desa'iption of Property. Licence to take future Property. Contract in Equity as to future Propei'ty. How affected by Bankruptcy. Fraudulent Assignment an act of Bankruptcy. Goods in Bankrupts'' possessioji, cVc. Trover, when not maintainable by Assignee. Bight of Assignees in Bankntptcy notrvith standing Bill of Sale. Fixtures not in Bankrupts^ order and disposition. Bight of Mortgagee to marshal. Protected Transactions with Bankrupts. Goods assigned to Trustees. 4. How affected hy Statutes relating to Insolvent Debtors. 5. Registration of Bills of Sale. Bills of Sale void unless regis- tered in Queen'' s Bench. Defeasances are to be written on same paper or parchment. Officer of Queen'' s Bench to keep Book containing particulars of. Officer entitled to Fee of Is. for Filing. Office Copies, or Extracts of, to be given on payment of Fee. Satisfaction may be entered on. Interpretation of Terms used in the Art. What must be Begistered. Description of Residence and Oc- cupation of Grantor. Description of Witnesses to. When void against Creditors. 6. Stamp. Form of a bill of sale. Absolute or condilional. Sect. 1. A bill of sale is, in its operation and form, precisely similar to a bargain and sale ; but the bill *f sale is of such things as do not savour of the realty, as goods, household furniture, &c. It may be either absolute, when the vendor wishes to convey the entii'e property to the vendee ; or conditional, when the conveyance is subject to a condition for making the same void on payment of the money advanced upon the goods. When such a deed is executed, the pro- perty in the goods passes to the vendee by delivery of possession. But when it is made absolute to a person, not followed by delivery, a presumption of fraud arises, Twyne's case, 3 Rep. 80. The mere circumstance of possession of chattels, however familiar it may be to say that it proves fraud, amounts to no more than this, that it is prima facie evidence of property in the man possessing, until a title, not fraudulent, is shown under which that possession has followed ; per Lord Bldoyi, 10 Ves. 145. The want of delivery of possession does not make a deed of sale of chattels absolutely void j it is only BILLS OF SALE. 463 evitlenco that the transfer was colorable. Where there is a ^y!^lt of O f Goods. possession, it is a question for a jury whether the bill of sale be fraudulent or not, Martindule v. Booth, 3 B. & Ad. 498. See 1 Smith's L. C. pp. 12, 13. A delivery of a single article in the name of the whole will not of itself give the purchaser such a possession as will profit him against creditors. Therefore, if an assignment be made of household furniture, and the assignor continues in possession, it is not protected against an execution at the suit of a creditor of the assignor, unless the assignment were notorious, Armstrong v. Bul- dock, Gow, 33 ; and see Smith v. Russell, 3 Taunt. 400. And it is not enough that a person is put in to keep possession jointly with the assignor, Wordall v. Smith, 1 Campb. 333. If the vendee suffers the late owner to interfere or exercise any act of ownership, it shall avoid the bill of sale as against a bond fide execution, Paget v. Perchard, 1 £sp. 205 ; for want of possession on a bill of sale is a notorious badge of fraud, which ought to be left to the jury, Martin V. Podger, 2 Bl. 702 ; S. C. b Burr. 2631. And a conveyance of chattels, unaccompanied with possession, is void, although in the same instrument be contained a valid mortgage of leasehold buildings, in which the cliattels are situated, Reed v. Blades, 5 Taunt. 212. And to prove a bill of sale fraudulent, declarations made by the vendor at the time of executing it are admissible, but not those made at another time, Phillips v. Earner, 1 Esp. 355 ; but a bill of sale made for a valuable consideration, unaccompanied with the posses- sion, is valid against the vendor, and also against a creditor with whose knowledge and assent it was given. Steel v. Brown, 1 Taunt. 381. 2. Where the conveyance is not absolute to take effect immediately. Conditional as, for instance, where it is by way of mortgage, and the mortgagee J^^Jy ^",! ,''']^!/7 is not to take possession until a default in payment of the mortgage gage. money, there, as the nature of the transaction does not call for any transmutation of possession, the absence of such transmutation seems to be no evidence of fraud, 1 Smith's L. C. p. 13, 4th ed.; Reed v. Wilmot, 7 Bing. 583; Reeves v. Capper, 5 Bing. N. R. 136. Although non-transmutation of yjossession will not make a transaction fraudulent and void when consistent with the aeed, the ti-ansaction is not protected by that circumstance, but is still open to be impeached 1)V any other presumption or pi'oof of fraud, Riches v. Evans, 9 C. & P. 640. In the case of Martindule v. Booth, 3 B. & A. 498, where A. being indebted to B. on the 8th of May, 1828, executed a bill of sale, whereby, in consideration of a further advance, he bar- gained and sold to B. all his (A.'s) household goods and furniture, &c. in and about the P. Tavern, with a proviso, that if A. should pay the money due and interest by instalments, the first of which was to be due on the 7tli of June, the deed should be void j but in del'auli of 464 BILLS OF SALE. Of Goods. payment of any of the instalments at the times appointed, it should be lawful, althou, which could not be impugned as fraudulent hy other creditors having executions against the same party, Watliins v. Birch, 4 Taunt. 823. 2. An ad valorem stamp as on a conveyance, Bccposty Puiu'iiask Deeds. 488 BILLS OF SALE. No. CCXXVIII. Goods taken in Execution. Recital of writ of execution. Execution of writ. Valuation of goods. Sale to creditor. Testatum. This Indenture &c. Between C. B. of &c. Esq. sheriff of the said county of the one part and ( Creditor) of &c. of the other part Whereas a writ o^ fieri facias issuing out of her Majesty's Court of Queen's Bench at Westminster directed to the said C. B. was received at the office of the under-sheriff commanding him that he should cause to be levied of the goods and chattels of G. L. within his bailiwick a certain debt of £ which the said ( C.) had recovered against him in the said court together with the sum of £ for damages costs and charges which the said ( C.) had sustained and expended by reason of his suit And whereas the said C. B. hath by virtue of the said writ taken in execution the stock and utensils in trade household furniture goods chattels and other effects and things particularly mentioned and set forth in the schedule hereunder written being in and upon the mes- suage yard stable and other buildings and premises now in the occupation of the said G. L. situate and being in F. in the county aforesaid and hath caused the same goods chattels and effects to be appraised by R. S. a person of competent skill who hath valued the §ame at the sum of £ And whereas the said C. B. hath agreed to assign all the said stock &c. so taken in execution as aforesaid and particularly mentioned &c. unto the said (C) for the sum of £ at which the same have been valued as aforesaid Now this Indenture witnesseth That in consideration of the sum of £ of lawful money of Great Britain by the said (C) to the said C. B. in hand paid at or before the execution of these presents the payment and re- ceipt of which said sum of £ and that the same is in full for the absolute purchase of the said stock and utensils in trade household furniture and other goods chattels and effects he the said C. B. doth hereby acknowledge and of and from the same and every part thereof doth acquit release and discharge the said (C) his executors administrators and assigns for ever He the said C. B. as sheriff as aforesaid as far as he lawfully can or may by virtue of his said office of sheriff and not further or otherwise Doth hereby bargain sell assign and set over unto the said ( C.) his executors administrators and assigns A Z/ and singular the stock and utensils in trade household furniture goods chattels and effects particularly mentioned and set forth in the schedule hereunder written and which have been taken in execution by the said C. B. by virtue of the said writ oi fieri facias of all which said goods chattels and effects hereby bargained sold and assigned the said C. B. at the time of the sealing and dehvering BILLS OF SALE. hereof hath dehvered or intends to deUver or cause to be de- hvered possession to the said (C) To have and to hold the said stock &c. unto the said (C.) his executors kc as his and their own goods chattels and effects absolutely In icitiiess whereof the said C. B. hath hereto set his hand and seal of office and the said (C) hath set his hand and seal the day and year first above written. Tlie Schedule above referred to. [Add the Schedule.] {Signature.) The above written indenture having been first duly stamped was signed with the name of C. B. sheriff of the county of F. sealed with his seal of office and delivered as his act and deed by J. C. gentleman under-sheriff of the said county in the pre- sence of W. G. Signed sealed and delivered by the above named (C) in the presence of R. M. Common Receipt for Consideration-money hy Sheriff. Mem. That at eight o'clock in the morning of the day of the date of the above written indenture T. H. the bailiff of the within named sheriff on the part and behalf of him the said sheriff and by his order delivered to the above named (C) one chair in the name and as the symbol of all the goods chattels and effects mentioned in the above written schedule or inventory in my presence. 489 No. CCXXVIII. Goods taken in Execution. No. CCXXIX. No. ccxxix. Bill of Sale for securing the Payment of a Sum of Money {with ^J""'"! if Variations, where it is given only as a Collateral Security, accompanied with a Bond or Warrant of Attorney). Obs. On the assignment of property by an instrument of this sort, there must be a complete change of ])osscssion, or the deed will be void against creditors; it is not enough tliat a person is put in to keep possession jointly with the vendor, Wardall v. Smith, 1 Cunipb. 3:33. 490 BILLS OF SALE. No. CCXXIX. Payment of Money. Recital of debt. And agreement to assign goods to creditor. Testatum. Habendum. Sale to a pur- chaser. Tills Indenture &c. Between {Debtor) of &:c. of the one part and ( Creditor) of &:c. of the other part Whereas (a) the said (D.) is indebted unto the said (C.) in the sum of £ and being at present unable to pay the same hath agreed to make such assignment or bill of sale to him of the goods chattels furniture and effects mentioned in the schedule hereunder written for better securing the ])ayment thereof as hereinafter is ex- pressed (b) Now this Indenture witnesseth That in pursuance of the said agreement and in consideration of the sum of £ so due (c) to the said ( C.) by the said (Z).) at the time of the sealing and delivery of these presents as hereinbefore is men- tioned which the said (Z).) doth hereby admit and acknowledge He the said {D.) Doth hereby bargain and sell unto the said (C.) his executors administrators and assigns All and singular the household furniture beds bedding plate china linen glass books pictures and other the goods chattels and effects men- tioned or described in or by the inventory thereof hereunder written or hereunto annexed and all the estate riglTt title interest property claim and demand whatsoever both at law and in equity of him the said {D.) of in or to the same respectively To have and to hold and take and enjoy the said household and other furniture goods &:c. and all and singular other the premises liereinbefore bargained and sold or intended so to be with their and every of their rights members and appurtenances unto the said ( C) his executors &c. to and for his and their own proper use and benefit Subject nevertheless to the proviso for re- demption of the premises hereinafter contained (that is to say) (a) If the bill of sale be made to a purchaser, say, " Whereas the said {purchaser) hath contracted with the said {vendor) for the absolute purchase of the several goods chattels furniture and etfects mentioned in the schedule hereunder written." {b) If the bill of sale be intended to accompany a bond or warrant of at- torney as a collateral security, say, " Whereas the said {debtor) hath executed a bond [or 'warrant of attorney'] in writing under his hand and seal bearing or intended to bear e%'en date with these presents in the penal sum of £ with a condition [or ' defeasance'] thereunder written for making void the same on payment of the sum of £ and interest after the rate of five per centum per annum on the day of now next ensuing And ivhereas it hath been agreed that for better securing tlie payment of the said sum of £ the said {debtor) shall execute such bill of sale of the goods and effects mentioned in the schedule hereunder written as hereinafter is ex- pressed." Now &c. (.) Doth hereby for himself his heirs executors and adminis- m'oney. trators covenant with the said (C.) his executors administrators and assigns in manner following (that is to say) That he the said (Z>.) his executors or administrators shall and will well and trrdy pay or cause to be paid unto the said (C.) his executors administrators and assigns the said sum of £ at the time and after the rate and in the manner aforesaid (c) appointed for the payment thereof according to the true intent and meaning of these presents And also [see Covenants for Right to Assign, Sec, ante, pp. 481, 482 {d).'] Bills of Sale of Ships, ^"c. see Shipping. (a) If tho bill of sale accompany a bond or warrant of attorney, say, " to- gether with the said hereinbefore in part executed bond [or ' warrant of at- torney']." (b) Where it is a purchase, this covenant must be omitted. (c) If the bill of sale accompany a bond or warrant of attorney, say, " in the manner hereinbefore and in the condition [or 'd< 'feasance'] of the said in part recited bond [or ' warrant of attorney'] appointed for the payment thereof accordingly." (d) If it be necessary, add here, " And the said {creditor) for himself &c. Covenant by doth covenant &c. with the said (debtor) by tliese presents that he the said creditor. {creditor) his executors &c. shall and will immediately after the receipt of the said sum of £ according to the true intent and meaning of the con- dition aforesaid upon the request of the said (detitor) well and truly deliver unto the said {debtor) ka. the said goods &c. and all other the premises wliich the said {creditor) received of the said {debtor) at or before the sealing and delivery of these presents in as good plight and condition as the same and every of them at this present time now are." 492 BONDS. BONDS. 3. Dffinition of a Bond. Distinction between Obligor and Obligee. Penalty. What recoverable on a Bond. Wlio may or may not he Parties to a Bond. Bond joint only. Joint and several. Several only. Effect of a Bond joint or joint and several. 4. Contribution by co-Sureties. 5. Form of a Bond. 6. Consideration. 7. Condition of a Bond. Illegality of, vitiates Bond. Construction of the Condition. 8. Form of Condition. 9. Limitation of Actions on Bonds. 10. Bonds to the Crown. 11. Stamp. Definition of a bond. Penalty. What recover- able on a bond. Who may or may not be par- ties to a bond. Sect. 1. A bond or obligation is a deed under seal, whereby one called the obligor binds himself to one called the obligee to pay- money or do some other thing. When a bond is simple, or single, that is, without a condition, it is properly an obligation ; but when a condition is annexed, as is usually the case, it is a double bond, most commonly called a bond, Sheph. Touch. 367. The obligor is generally bound in a penal sum, double the amount of the sum intended to be secured, and on his failing to perform the condition, the bond becomes forfeited at law, but equity interposes to restrain the obligee from taking more than his principal and interest. And in pursuance of the same principle, the 4 & 5 Ann. c. 16, provides, that when a bond is given to secure the payment of a sum of money, a tender of the principal sum due, with interest and costs, shall be a full satisfaction of such bond, though the same at law may be forfeited. By an equitable construction of this statute, it is held, that interest cannot be recovered upon a bond beyond the amount of the penalty, it being a settled point, both at law and in equity, that the penalty is the debt, except in particular cases. Wild v. Clarkson, 6 T. R. 303 ; Clark v. Seton, 6 Ves. 415; Branscomhe v. Scarborough, 13 L. J., N. S. 247 ; 8 Jur. 688 ; 6 Q. B. 13. 2. All persons having a legal capacity to contract may, in general, bind themselves in bonds and obligations, 4 Co. 124; 5 Co. 119. A corporation may bind themselves in an obligation under their common seal, Yin. Abr. tit. Corporation (G. 2). But an infant cannot bind himself in a bond with a penalty conditioned for payment of interest as well as principal, not even for necessaries, unless by single bill, see Hurlstone on Bonds, p. 3 ; 1 Lev. 86 ; Fuher v. Moivbray, 8 East, 330. So the bond of an idiot, or of one that is drunk at the time of making the bond, is void, 2 Stra. 1104; Bull. N. P. 172. So a BONDS. 493 bond given by a man in duress, that is, unlawful imprisonment, is Bonds. void, 2 Inst. 482 ; 4 Inst. 97 ; Allen, 92. A bond given by a married woman will bind neither her nor her husband, but is absolutely void, Bac. Abr. Oblig. (D.) ; but if she has a separate estate, it may render her liable in equity, Dullen v. Clarke, 17 Yes. 366 ; Stewart V. Kirkwall, 3 Madd. 387 ; Lee v. Muggeridge, 5 Taunt. 36. And one partner cannot bind the others by bond, unless an express power to that effect be given, Harrison v. Jackson, 7 T. R. 207. Executors and administrators are bound by the obligation of the testator, although not named, but the heir is not bound, unless named. And the heir, if named, on a defect of personal assets in the hands of. the executors and administrators, is bound to discharge the same, pro- vided he has real assets, 2 Comm. 340; Bull. N. P. 175. If the obligation be made to one and his heirs, the executors and adminis- trators shall take advantao-e of it, Slieph. Touch. 376. When two or Bond joint more bind themselves in a bond by the words, " We bind ourselves,' °" ^' and say no more, the bond is joint ; but if it be thus, " We bind our- Joint and se- selves, and each of us, our heirs, and each of our heirs, &c.," the ^^'^^^• bond is joint and several, Sheph. Touch. 376. If it be expressed in a bond that two or more persons are jointly and severally bound, and one of them does not execute the bond, it is not the joint bond of those who executed it, but only the several bond of each of the parties si'inino-, Elliott v. Davis, 2 B. & P. 338. If in a bond conditioned Several only, for the payment of a sum, it be worded thus, " For which payment to be well and faithfully made we bind ourselves and each of us for himself for the whole and entire sum of £ ," it has been held that this was a several bond only, and that the obligees, by removing the seal of one of the obligors, did not render it void as to the others, Collins V. Prosser, 1 B. & C. 682. Three obligors bound themselves "jointly," and their heirs, &c., "respectively" to pay, with a condi- tion for avoiding the bond if they or either of them, their or either of their heirs paid ; it was held to be a joint and several obligation, makino; the assets of one of them who had died liable, Tippins v. Coates, 18 Beav. 401. 3. When the obligation is joint, the obligee must sue the obligors EITectofabonJ altogether, Sheph. Touch. 375. When the obligation is joint and seve- J^^jljI'^^'J;'"/' ral, he may either sue them altogether, or each of them separately ; but he may not sue some and spare the rest, 1 Saund. 291. If the bond be joint, and one of the obligors die, the survivor oidy is charo-ed : but it is otherwise where the bond is joint and several, 2 Vern. 99. A. and B. were obligors in a joint bond ; A., who was alleged to be the principal debtor, died : it was held, that his assets were not liable in equity upon the bond, but that the liability survived to B., Uirkardson v. Ilorton, 6 Beav. 185; Jtawstone v. Parr, 3 Russ. 424, 539; Cowell v. Sikes, 2 Russ, 191. Sec Wilnicr v. Currey, 2 De G. & S. 347, the case of a joint covenant. 494 BONDS. Bonds. Contribution by co-sureties. Form of a bond. Consideration. Condition of a bond. Illegality of, vitiates bond. Construction of condition. 4. The n2;lit of contribution, as between co-sureties, is not precisely the same at law as in equity. Where several parties ai-e bound, they must be bound in one and the same penalty, to give co-sureties a right of action for contribution ; but if each is bound for a distinct penalty, it does not make the one bound for the penalty of the other. For the remedy at law is founded on the principle, that one pays that to which all are liable, Collins v. Prusser, 1 B. & C. 682. On the other hand, contribution in equity being founded on a principle of justice and equality, it is immaterial whether co-sureties give joint or separate bonds, except that in the latter case they must contribute to the amount of the security ; but if they are all jointly bound in one obligation in a penal sum, they must all contribute equally, Deering v. JEarl of Winchelsea, 2 B.'& P. 270. 5. Although the usual manner of framing a bond is the best, yet any words in a deed sealed and delivered, which appear on the face of it to have been intended as a bond, will make a good obligation, Cro. Car. 129. An obligation must be on parchment or paper, and sealed (which is indispensably requisite), otlierwise it is void, Co. Litt. 35 b ; Sheph. Touch. 376 ; Dyer, 19 a ; but signing is not essential to its validity, 2 Cro. Ehz. 642, nor any particular form of delivery, Co. Litt. 36 a. If the bond be altered by the obligee, although but in an immaterial point, he vacates the deed, 10 Co. 92; Bull. N. P. 267 ; see Hurlstone on Bonds, pp. 120, 122. A release of a bond, or a dispensation Avith its conditions, must be by deed, Sellers v. Dichford, 8 Taunt. 31 ; S. C. J. B. Moore, 460. 6. The want of a consideration to a bond affords no ground of ob- jection ; but if there be anything illegal in the consideration, the defendant is allowed to plead it in bar to the action, Fallowes v. Taylor, 7 T. R. 477. 7. If the condition of a bond be to do that which is unlawful, im- possible, or so insensible and uncertain that the meaning cannot be known, it is void, Sheph. Touch. 372 ; 2 Salk. 462. So if the condition be against the provisions of a statute, the rules and claims of decency, and the dictates of morality, it is void at law and in equity, I Fonbl. Eq. 228 ; Coleman v. Sarell, 3 Br. C. C. 12 ; Sheph. Touch, by Preston, 71. Bonds entered into for particular purposes are declared void by several statutes, as by 5 & 6 Edw. 6, c. 16, bonds given for buying or selling offices, see Hurlstone on Bonds, pp. 17, 20; by 13 Eliz. c. 5, for avoiding the debt and duty of others ; by 16 Car. 2, c. 7, and 9 Ann. c. 14, for procuring the return of a member of parliament ; by 12 Ann. c. 16 (now repealed), bonds upon usurious contracts. The condition of a bond being in favour of the obligor, as protecting him from the penalty, 1 Saund. 16, it is literally construed, and may be restrained by the recital ; as where in the condition it was recited, BONDS. 495 that a sheriff had appointed the defendant bailiff of a hundred witliin Bonds. his county, it was adjudged that the words " all warrants " in the condition itself should be intejided only all warrants which were directed to the defendant as bailiff of the said hundred, and not other warrants, cited in Lord ArUnyton v. Merrick^ 2 Saund. 411, 41 '2. This rule of construction is moi-e strictly observed in favour of sureties, where, in the condition of the bond, it was recited that the surety was bound for six months only, althou<>h the words in the condition were indefinite, ** during all the time he shall continue, &c.," Lord Ar- lington V. Merrick, 2 Saund. 411 ; see North Western Hail mi// Compayiy v. Whinsay, 10 Exch. 77 ; 23 L. J., Exch. 261. So a bond entered into by a surety for the faithful service of a clerk to any person or pei'sons (not forming an incorporated company) becomes void as soon as there is any change in the firm by death or otherwise, Wright V. Russell, 3 Wifs. 532 ; -S. C. 2 Bl. 934; Barker v. Par- ker, 1 T. R. 287; unless the condition be so worded as to provide for this contingency. Bonds frequently become inoperative by the change or death of Change or partners in a firm, unless they are so worded as to meet the change of \^^^^ ° ^^^' circumstances. A bond given by a party to three bankers conditioned for payment of all sums advanced by them at their bank, will not cover future advances made after the death of one of the partners and the admission of another, Strange v. Lee, 3 East, 484 ; Pemherton V. Oakes, 4 Russ. 154. A surety for such sums as should be ad- vanced to meet bills drawn by A. and B. as partners, or either of them, Avill not be liable for bills drawn by B. after the death of A., Simpson V. Cooke, 1 Bing. 588; Weston v. Barton, 4 Taunt. 073. It is now provided by the Mercantile Amendment Act, that a guarantee to A. by a firm shall cease upon a change in the firm except in special cases, 19 & 20 Vict. c. 97, s. 4, ante, p. 94, sect. 4. A bond or other security may be so worded as to extend to advances and transactions made or entered into after a change in tlie firm. A bond will be a continuing security, notwithstanding a change in the fii'ui, where the condition of it is to pay to bankers and eveiy other person who should become a partner in the fiim, all such sums of money not exceeding a specified amount, as the partners or any future partner should advance to the obligor, Batson v. S])eariuan, 9 Ad. & E. 298; 3 Per. & D. 77; Metcalfe v. Bruin, 12 East, 400 ; Ex jmrte Loyd, 3 Dea. 305. A bond may be set aside in equity upon the ground that it was obtained by undue infiuencc and a suppression of facts, Cooke v. Lamotie, 21 L. J., Ch. 371 ; Squire v. Watson, 1 H. L. Ca. 3:W. A court of equity will not allow a party to set up an objection to the validity of his own obligation, upon the grounds he sup- pressed at the time, but against which, if divulg(!(I, the party with whom he was dealing might have protected himself A bond 496 BONDS. Bonds, Form of con- dition. Limitation of actions on bonds. Bonds to the crown. Stamp duty, amount. was assigned for valuable consideration without notice of objection to its validity, and the obligor having applied to the assignee for a further advance, offering to give a mortgage for the whole, but stating no objection to the validity of the bond, was not allowed to endeavour to avoid the bond by evidence that it was given to secure money lost by a bet on a horse-race, Hawker v. IlaUewell, 3 Sm. & G. 194; 2 Jur., N. S. 537; affirmed on appeal, 2 Jur., N. S. 794; 25 L. J., Ch. 558 ; see 4 & 5 Will. 4, c. 41. 8. If the words at the close of the condition, " Then this condition shall be void," be omitted, the condition is void, but the obligation remains in force ; but the omission of the subsequent words, " or else shall remain in full force," is immaterial, Sheph. Touch. 371. If the condition of a bond be to pay money, or to do any other thing, and no time be named in the condition, it is now settled that the bond shall be payable on the day of the date, Farquhar v. Morris, 7 T. R. 124. When no place is mentioned for the performance of the condition, it must be done to the person of the obligee, if he be within the four seas. But although the place be named, yet if the obligee receive payment in any other place, it is sufficient to save the bond ; and by the 4 Ann. c. 4, s. 12, such payment may be pleaded in bar of any action, Har. Co. Litt. 212 n. 9. By 3 & 4 Will. 4, c. 42, s. 3, all actions on bonds are to be brought within twenty years after the cause of action accrued, pro- vided that infants, married women, lunatics, and persons beyond the seas, may bring actions beyond that time, so that they proceed within the same time after the disability is removed. By sect. 7, no part of the United Kingdom is to be considered as beyond the seas. By sect. 5, an acknowledgment in writing signed by the party liable or his agent, a part payment or satisfaction on account of principal or interest, extends the term foi- a further period of like limitation, see Shelford's Real Prop. Stat. pp. 269—274, 6th ed. 10. A bond given to the crown under 33 Hen. 8, c. 39, may be made payable to the king, his heirs or successors, Reg. v. Ellis, 4 Exch. 652 ; 19*L. J., Exch. 77; Ellis v. Reg. (in error), 6 Exch. 921. By a bond given to the crown under that statute, all the lands of the obligor are bound from that date, and as sucli bond is a voluntary act, the obligor cannot by mortgaging any portion of his lands, even under a power of appointment contained in a deed prior to the bond, render them free from liability under an extent subsequently issued upon the bond, Ih. Upon a proceeding of amoveas manus, the court may take notice of the bond upon which the extent has issued, lb. 11. The amount of stamp duty on bonds is now regulated by 13 & 14 Vict. c. 97, which imposes an ad valorem duty on the amount secured by the bond, and, if it contain 2160 words, a progressive duty (regu- lated by the sum secured) on every 1080 words beyond the first 1080. BONDS. 497 If several persons are bound under one penalty for the perfoimance of Bonds. the same matters, one stamp is sufficient, Godson v. Forbes, 1 Marsh. 531. Formerly, if the stamp was insufficient, it was a ground of nonsuit, 2 M. & S. 88 ; 2 Price, 20 ; but it is sufficient if the instru- ment bear a proper stamp when it is produced, 2 Marsh. 485; 7 Taunt. 147. By 17 & 18 Vict. c. 125, s. 29, a document may be made admissible in evidence on payment of -the duty and penalty to the officer of the court. Transfers of bonds and mortgages of public companies are exempted Exemptions, from stamp duty, if on their original issuing a composition for an ad valorem duty was paid, 16 & 17 Vict. c. 59, s. 14. Bonds by col- lectors of land tax are exempted from stamp duty, by 3 Geo. 4, c. 88 ; so receivers of land and assessed taxes, by 4 & 5 Will. 4, c. 60, s. 15 ; so bonds to prosecute commissions or fiats of bankruptcy and assign- ments thereof, also replevy bonds and assignments thereof, are exempt from stamp duty, by 5 Geo. 4, c. 41 ; so bonds by treasurers of savings banks, and also administration bonds for effects of depositors, by 9 Geo. 4, c. 92, s. 41 ; so bonds by owners of vessels to com- missioners of customs, 3 & 4 Will. 4, c. 53, s. 19 ; so bonds by licensed dealers in stamps, by 3 & 4 Will. 4, c. 98, s. 1 ; so bonds by treasurer, &c. of loan society, 5 & 6 Will. 4, c. 23, s. 5 ; 3 & 4 Vict. c. 110, s. 12 ; so bonds by collectors of highway rates, by 5 & 6 Will. 4, c. 50 ; and East India bonds, on payment of a composition, by 5 & 6 Will. 4, c. 64, s. 4. OBLIGATORY PART OF A BOND. No. CCXXX. No. ccxxx. From One to One. From One to One. Know all Men by these presents That I (obligor) of &:c. am held and firmly bound to {obligee) of kc. his executors administrators and assjo-ns in the sum of £ [double the condition, see Pref. sect. 1] to be paid to the said (obligee) his executors adminis- trators or assigns to which payment well and truly to be made I bind myself my heirs («) executors and administrators firmly by these presents. Sealed with my seal and dated this day of in the year of our Lord 1 8 (a) As to the naming of the heirs, see Pref. sect. 2. VOL. I, K K 498 BONDS. No. CCXXXI. From Two to One or more. No. CCXXXI. From Two to One or more. Know all Men hy these presents That we (obligors) of &:c. are held and firmly bound to {oUigee) in the sura of £ [double the sum to be secured'] of lawful money of Great Britain to be paid to the said {obligee) (a) or to his executors adminis- trators or assigns for which payment to be well and faithfully made we bind ourselves and each of us our and each of our heirs executors and administrators and every of them jointly and severally firmly by these presents Sealed with our seals Dated &:c. No. CCXXXII. From Three or more to One. No. CCXXXII. From Three or more to One. Know all 3Ien hj these presents That we A. B. of &c. C. D. of &c. and E. F. of kc. are held and firmly bound to Y. Y. of &c. in the sum of £ [^double the money to be secured] of lawful money of Great Britain to be paid to the said Y. Y. or to his executors administrators or assigns for which payment to be well and faithfully made we bind ourselves and every of us and any two of us our and every of our or any two (6) of our heirs executors and administrators and every of them jointly and severally firmly by these presents Sealed with our seals Dated &c. (a) If two obligees, say,, "and {other obligee) or either of them their or either of their executors administrators or assigns." If obligees are tenants in common, say, "as tenants in common their or either of their executors admi- nistrators or assigns." {b) Where there are more than two obligors words giving a power to sue two or three, &c. of them, should always be introduced as if three were jointly and severally bound, the obligee cannot sue' two of them only during the life of the third, but must either sue them all or each of them severally, unless words of this kind are introduced, Streatfield v. HalUday, 3 T. R. 782 ; 1 Sauud. 291, e, u. BONDS. 499 CONDITIONS OF BONDS. No. CCXXXIII. To Account, {Receiver.) No. CCXXXIII. Bond from a Receiver. Ohs. As to the form, &c. of the condition, see Pref. sect. 8. Know all &c. That &:c. Whereas the above named {obligee) Obligation, hath retained and employed the above bounden {obligor) to be the Recitals, receiver of the rents issues and profits of all and singular his the said {obligee's) messuages lands and tenements situate lying and being in kc. A^oic the Condition of the above written obli- Condition, gation is such That if the said {obligor) shall from time to time and at all times hereafter pay or cause to be paid unto the said {obligee) his heirs executors administrators or assigns all such sum and sums of money as shall be by him had and received of the said rents issues and profits and render to the said (obligee) his heirs &:c. a true and just account of all and every sum and sums of money that shall be by him received paid laid out and disbursed of from for or on account of the said lands or the rents kc. thereof or of for or on account of tiie said (obligee) his kc. And also will truly justly and honestly in every respect behave himself in the said office or employment of receiver of the aforesaid rents kc. Then this obligation to be void or other- wise shall remain in full force and virtue. A. B. (obligor) Signed sealed and delivered by the above named A. B. (being first duly stamped) in the presence of CD. E. F. No. CCXXXIV. ^^^^^^ Bond from the Treasurer of a Company. By Treusuni Know all kc. That &c. Whereas an act of parliament was jDasscd ()bli;,Mtion. &c. \recite act for forminn a railway or a canal company iifc. as Hetital of act , ,..,• 1 1- . rri of narliament. the case may be\ And it was among other thmgs enacted lliat it should be lawful for the said company of j)roprictors at any general meeting assembled and they were thereby re(|uirc'd iiuni time to time to nominate and a])])oint a treasurer and clcik and K K 2 500 BONDS. No. CCXXXIV. By Treasurer. Appointment of treasurer. Condition. such other officers as they should think proper And should take sufficient security from every such treasurer or other officers having- the care and custody of any money to be raised or re- ceived by virtue of the said act for the due execution of the said office as the said company of proprietors should think proper And whereas at a general meeting of the company of proprietors of holden &c. the above bounden {obligor) was appointed treasurer to the said company And upon such appointment the said (obligor) agreed to enter into a bond in a sufficient penalty for insuring to the said company the faithful discharge of his duties in the said office and in pursuance of such agreement hath executed the above written bond subject to such condition for making the same void as hereinafter is con- tained JVoio kc. That if the said (obligor) do and shall weekly during such time as he shall continue to be treasurer of the said company or oftener if thereunto required well and truly account for pay and deliver unto the committee of the said company for the time being appointed to manage the affairs of the company or unto such other person or persons as the said committee shall appoint to receive the same all such sum and sums of money books papers writings receipts vouchers matters and things which he the said (obligor) hath received or shall from time to time be intrusted with or which shall come into his hands for or on account of or to the use of the said company and their suc- cessors And also if the said {obligor) do and shall from time to time whilst he shall continue treasurer in all thinos and in all re- spects well and faithfully execute and perform the said office of treasurer Then kc. To Account by Administrator. Bond required by statute. Persons to whom grants of administration shall be com- mitted shall give bond. ADMINISTRATION BONDS. Ohs^. 1. By the 22 & 23 Car. 2, c. 10, tlie ordinary or ecclesiastical judge is required to take a bond, with two or more sureties, from the person to whom the administration of an intestate's goods is com- mitted, duly to account for such effects as shall come into his hands. So much of the acts 21 Hen. 8, c. 8; 22 & 23 Car. 2, c. 10 ; and 1 Jac. 2, c. 17, as requires any suret}^ bond, or other security to be taken from a person to whom administration shall be committed, are repealed, 20 & 21 Vict. c. 77, s. 80. Every person to whom any grant of administration shall be committed, sliall give bond to the judge of the Court of Probate to enure for the benefit of the judge BONDS. oOl for the time Heintj, and if the Court of Probate or (in the cape of a To Arrouni by frrant from the district registry) the district registrar shall require, ^''"""'^'•' "''"-- vith one or more surety or sureties (o) conditioned for duly collecting, getting in and admiuistei-ing the personal estate of the deceased, "vvbich bond shall be in such form as the judge shall from time to time by any general or special order direct ; provided that it shall not be necessary for the solicitor for the aifairs of the Treasury or the solicitor of the Duchy of Lancaster, applying for or obtaining ad- ministi-ation to the use or benefit of her Majesty, to give any such bond as aforesaid, 20 k 21 Vict. c. 77, s. 81. Such bond shall be in a penalty of double the amount under which Penalty on the estate and effects of the deceased shall be sworn, unless the court or district registi-ar, as the case may be, shall in any case think fit to direct the same to be reduced, in which case it shall be lawful for the coui't or district registrar so to do; and the court or district registrar may also direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the court or district registrar shall think reasonable, '20 & 21 Vict. c. 77, s. 82. The court may on application made on motion or petition in a Power of court summary way, and on being satisfied that the condition of any such *o assign bond, bond has been broken, order one of the registrars of the court to assign the same to some person to be named in such order ; and such person, his executors or administrators, shall thereupon be entitled to sue on the said bond in his own name both at law and in equity, as if the same had been originally given to him instead of to the judge of the court, and shall be entitled to recover thereon as trustee for all persons interested, the full amount recoveiable in respect of any breach of the condition of the said bond, 20 & 21 Vict. c. 77, s. 83. Bonds given to any archbishop, bishop, or other Bonds {riven person exercising testamentary jurisdiction in respect of grants of^ ] i "[3,58'" "^^^^ letters of administration made prior to the 11th January, 1858, or in remain iu force, respect of grants made in pursuance of the Court of Probate Act, or of the act 21 & 22 Vict. c. 95, whether taken under a commission or requisition executed before or after the said 11th January, shall enure to the benefit of the judge of the Court of Probate, and if necessary, shall be put in force in the same manuer and subject to the same rules (so far as the same may be applied to them) as if they had been given to the judge of the said court subsequently to that day, 21 & 22 Vict. c. 95, s. 15. Administration bonds are to be attested by an officer of the prin- Attestation of ,.,,..,.. 1 • • .1 iuliiiinistratiuii cipal registry, by a district registrar, or by a commissioner or other i,,,,,^, person now or hereafter to be authorized to adminisler oaths under 20 k 21 Vict. c. 77, and 21 k 22 Vict. c. 95 ; but in no case are they (a) See Affidavit of Slrf.ties, No. XLVIII., aritc, p. 73. 502 BONDS. To Account by to be attested by the proctor, solicitor, attorney, or agent of the party Administrator, ^j^^ executes them. The signature of the administrator or adminis- tratrix to such bond, if not taken in the principal registry, must be attested by the same person who administers the oath to such adminis- trator or administratrix. In all cases of limited or special administra- tion, two sureties are to be required to the administration bond, and the bond is to be given in double the amount of the property, to be placed in the possession of or dealt with by the administrator by means of the grant. The alleged value of such propei-ty is to be verified by affidavit if required. Further rules under stats. 20 & 21 Vict. c. 77, and 21 & 22 Vict. c. 95, Nos. 4, 5. 2. As to sureties and their remedies against each other, see Pref. sect. 4, ante, p. 494. Stamp duty. 3. If the estate to be administered does not exceed 20/. in value, an administration bond is exempt from all duty, otherwise it is charged, by the 55 Geo. 3, c. 184, with a 1/. stamp duty ; but bonds for ad- ministering effects of depositors in savings banks, not exceeding 50/., are exempt, 9 Geo. 4, c. 92, s. 41. No. ccxxxv. Administration. No. CCXXXV. Administration Bond. Know all Men hy these Presents That we A. B. of C. D. of and E. F. of are jointly and severally bound unto G. H. the judge of her Majesty's Court of Probate in the sum of £ of good and lawful money of Great Britain to be paid to the said G. H. or to the judge of the said Court for the time being for which payment well and truly to be made we bind ourselves and of us for the whole our heirs executors and administrators firmly by these presents Sealed with our seals Dated the day of in the year of our Lord one thousand eight hundred and The con- dition of this obligation is such that if the above named A. B. the [as the case may be] of I. J. late of deceased who died on the day of do when lawfully called on in that behalf make or cause to be made a true and perfect inven- tory of all and singular the personal estate and effects of the said deceased which have or shall come to hands possession or knowledge or into the hands and possession of any other person for and the same so made do exhibit or cause to l3e exhibited into the Principal Registry of her Majesty's Court BONDS. 503 of Probate whenever required by law so to do and the same personal estate and effect^ and all other the personal estate and effects of the said deceased at the time of death which at any time after shall come to the hands or possession of the said or into the hands or possession of any other person or persons for do well and truly administer according to law (that is to say) do pay the debts which did owe at decease And further do make or cause to be made a true and just account of said administration whenever required bylaw so to do And all the rest and residue of the said personal estate and effects do deliver and pay unto such person or per- sons as shall be entitled thereto under the Act of Parliament intituled " An Act for the better settling of Intestates Estates" And if it shall hereafter appear that any last will and testament was made by the said deceased and the executor or executors therein named do exhibit the same into the said court making request to have it allowed and approved accordingly if the said being thereunto required do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said court Then this obligation to be void and of none effect or else to remain in full force and virtue. Signed sealed and delivered in the presence of K. L. Registrar l^or " O. P. a clerk in the Principal Registry of her Majesty's Court of Probate."] No. ccxxxv. Administration. No. CCXXXVI. Administration Bond for Administrators ivith the Will. Know all Men 6fc. [ The same as in No. CCXXXV.] The condition of this obligation is such that if the above named A. B. the [as tlie case may &e] of I. J. late of deceased who died on the day of do when lawfully called on in that behalf make or cause to be made a true and perlcct inventory of all and singular the personal estate and eH'ects of the said deceased which have or shall come to hands possession or knowledge and the same so made do exhibit or cause to be exhibited into the Principal Registry of her Ma- jesty's Court of Probate whenever required by law so to do and the same personal estate and effects do well and truly No. CCXXXVI. Administration with Will. 504 BONDS. No. CCXXXVI. Administration with Will. administer (that is to say) do pay the debts of the said deceased which did owe at decease and then the legacies contained in the said will annexed to the said letters of adminis- tration so to committed as far as personal estate and effects will thereto extend and the law charge And further do make or cause to be made a true and just ac- count of said administration when shall be there- unto lawfully required And all the rest and residue of the said personal estate and effects shall deliver and pay unto such per- son or persons as shall be by law entitledt hereto Then this obligation to be void and of none effect or else to remain in full force and virtue. Signed sealed and delivered in the presence of K. L. Registrar [or " O. P. a clerk in the Principal Registry of her Majesty's Court of Probate."] No. CCXXXVI I. Receiver of Real Estate. The Court of Probate may require security from a receiver of real estate. No. CCXXXVII. Form of Bond to he executed hy a Receiver of Real Estate pending Suit. Ohs. It shall be lawful for the Court of Probate to require security by bond in such form as by any rules and orders shall fi'om time to time be directed, with or without sureties, from any receiver of the real estate of any deceased pei-son, appointed by the said court under tlie 71st section of the Court of Probate Act, 20 & 21 Vict. c. 77, and the court may, on application made on motion or in a summary way, order one of the registrars of the court to assign the same to some person to be named in such order, and such person, his executors or administrators, shall thereupon be entitled to sue on the said security or put the same in force in his or their own name or names, both at law and in equity, as if the same had been originally given to him instead of to the judge of the said court, and shall be entitled to recover thereon, as trustee for all persons interested, the full amount due in virtue thereof, 21 & 22 Vict. c. 95, s. 21. A receiver of real estate pending suit, is to give bond in the form annexed to the rules and orders, or in a form as near thereto as the circumstances of the case will admit of, with two sureties, and in a penalty of such an amount as may be directed by the judge. Further oi-ders undei- stats. 20 & 21 Vict. c. 77, and 21 & 22 Vict. c. 95, No. 24. BONDS. 505 Know all Men hii these Presents That we A. B. of &:c. CD. No. CCXXWII of &c. and E. F. of &:c. are jointly and severally bound unto the „* '.' Right Honourable Sir Cresswell Cresswell Knight the judge of Real Estate. her Majesty's Court of Probate in the sum of £ of good and lawful money of Great Britain to be paid to the said Right Honourable Sir Cresswell Cresswell or to the judge of the said court for the time being for which payment well and truly to be made we bind ourselves and every of us for the whole our heirs executors and administrators fii-mly by these presents Sealed with our seals Dated the day of in the year of our Lord one thousand eight hundred and fifty Whereas G. H. late of &c. died on the day of 18 having as asserted made and duly executed his [or "her"] last will and testament with codicil thereto bearing date respectively the [here insert dates of the testamentary/ papers] And whereas there is now pending in judgment in her Majesty's Court of Probate a certain cause or suit instituted by I. J. as one of the executors named in the said will against K. L. the natural and lawful and only next of kin of the said deceased touching and concerning the validity of the said will and codicil in which said cause or suit M. N. as the heir at law of the said G. H. has been cited to see proceedings and has entered an appearance and become a party to the said cause or suit And whereas the Right Honourable Sir Cresswell Cresswell the judge aforesaid did on the day of 185 after hearing counsel for and on behalf of all parties to the said cause or suit appoint the above bounden A. B. as and to be receiver of the real estate of the said G. H. pending the said cause or suit Now the con- dition of this obliiiation is such that if the above bounden A. B. the receiver of the real estate of the said G. H. pending the aforesaid cause or suit do when lawfully called on in that behalf make a true and perfect inventory of all the rents issues and profits of the said real estate which have or shall come to his hands possession or knowledge or into the hands possession or knowledge of any other person for him and the same so made do exhibit or cause to be exhibited into the Principal Registry of her Majesty's Court of Probate whenever required by law so to do and the same rents issues and profits do well and truly pay and appropriate according to law (that is to say) in payment and satisfaction of all charges and expenses which arc or may be or become legally charged upon and payable out of tlic said rents issues and profits and in the letting and managing the said 506 BONDS. No. ccxxxvri. Receiver of Real Estate. real estate and in performing other the duties committed to him by the judge aforesaid And further do make or cause to be made a true and just account of his administration of the said rents issues and profits whenever required by law so to do And all the rest and residue of the said rents issues and profits do deliver and pay unto such person or persons as shall be entitled thereto subject to and under the direction of the said court Then this obligation to be void and of none effect or else to remain in full force and virtue. Signed sealed and delivered by the within named in the presence of P. Q. a clerk in the principal registry or a com- missioner or Court of Probate surrogate authorized to administer oaths in the No. CCXXXVIII. By Clerk. Obligation. Recitals. Condition. No. CCXXXVIII. J^ond from a Clerk and his Surety for the faithful Execution of his Office in a Brewery. Know all Sec. Whereas &c. in and by certain articles of agreement bearing date &c. [recite agreement between the above bounden (clerk) and the said {obligees) his principals'^ And whereas upon the treaty for the engagement of the said (obligor) as such clerk he the said (surety) on the behalf and at the request of the said (obligor) did consent and agree to become surety unto the said (obligees) for the said clerk's true and faithful execution and discharge of his said office as hereinafter is mentioned JVow Sec. That if the said (obligor) do and shall at all times so long as he shall continue clerk of the said (obligees) in all things well and truly abide by perform fulfil and keep all and singular the covenants and agreements contained in the afore- said articles on his part and behalf and do and shall faithfully and diligently serve the said (obligees) and the survivors or sur- vivor of them for the full term of years mentioned in the said articles and according to the full and true intent and meaning of the said articles Then &c. JBond to secure the Payment of an Annuity to a former 31lstress, see ante, No. XCVIIL, pp. 185—187. BONDS. 507 ANNUITY BONDS. Obs. As to the stamp duty on bonds tor securing the payment of Annuity. an annuity, see 1-3 & 14 Vict. c. 97, sclicd. Bond. No. CCXXXIX. No. CCXXXIX. Bond for Payment of an Annuity {General Precedent). Payment of an Annuity. Know all &c. JVJiereas the above bounden {obliyors) have oblio-ation. contracted with the above named (obligees) to grant to them and Recital of con- the survivor of them and the executors administrators and as- "^'^^' signs of such survivor one annuity or clear yearly sum of £ for the lives of H, H. of &:c. and W. H. of &c. and the life of the survivor of them at and for the price or sum of £ And Warrant of whereas upon the treaty for the purchase of the said annuity or attorney, clear &:c. of £ it was agreed that the same should be secured by the joint and several warrant of attorney of the above bounden {obligors) for confessing judgment thereon upon which judgment is intended to be entered up as hereinafter men- tioned in that behalf And it was further agreed that the said Repurchase of annuity or &c. of £ might be repurchased at the time and ^""""y- upon the terms and conditions hereinafter mentioned in that behalf ^ /if/ a/so that the costs and charges of preparing and Costs of secu- perfecting the said securities for payment of the said annuity and '''"^^' entering up the said judgment should be borne by the said {obligors) And whereas in part performance of the said agreement the said Defeasance. {obligors) have on the day of the date of the above written obliga- tion executed a warrant of attorney bearing even date herewith empowering certain attornies therein named to confess judgment thereon jointly or severally against them in her Majesty's Court of Queen's Bench at Westminster at the suit of the said {obligees) for the sum of £ besides costs of suit as of Hilary term last Easter term next or any other subseqxient term with a con- dition or defeasance thereon indorsed that no execution should issue on the judgment intended to be entered up in j)ursuance of the said warrant of attorney until default should haj)pen to be made in payment of the said annuity on some or one of the days and times and in manner hereinafter mentioned and appointed 608 BONDS. No. CCXXXIX. Payment of an Annuity. Writ of execu- tion to recover arrears. Want of re- viving judg- ment. Terms of re- purchase. Acknowledg- ment of satis- faction. Condition. for the payment thereof when and in such case it should and might be lawful for the said (obligees) or the survivor of them or the executors administrators and assigns of such survivor to sue out one or more writ or writs of execution upon or by virtue of the said judgment for all arrears of the said annuity which should then be due And all costs charges damages and ex- penses which they or any or either of them might have been at or put unto by reason or on account of the nonpayment thereof without reviving the said judgment or doing any act matter or thing to keep the same on foot notwitlistanding the said judg- ment should have been entered of record for the space of one year or more And that the said {oUigors) or either of them their or either of their heirs executors or administrators should not nor would have receive take or attempt by any means to have receive or take any plea exception or advantage for want of reviving the said judgment or keeping the same on foot And that if they or either or any of them should attempt so to do by action motion or other legal proceeding whatsoever the now re- citing agreement might be pleaded and shown in bar thereto any rule or practice of the court or other matter or thing to the contrary notwithstanding And whereas it hath been agreed be- tween the said parties that the said (obligees) or the survivor of them or the executors administrators or assigns of such survivor shall and will accept and take the sum of £ in full for the repurchase of the said annuity or yearly sum of £ at the time and upon the terms hereinafter conditioned for the same And they have also agreed that upon the decease of the survivor of them the said H. H. and W. H. in case the said annuity shall not have been repurchased and upon full payment of the said annuity and of the proportional part (a) thereof up to and inclusive of the day of decease of such survivor and of all costs charges and expenses as aforesaid Then the said (obligees) or the survivor &c. or the executors &c. in either of the said cases shall and will at the request costs and charges of the said (obligors) or either of them or their or either of their executors administrators or assigns acknowledge satisfaction on the record of the said iudo-ment A^ow the Condition &c. That if the above bounden (obligors) or the survivor of them their or either of their heirs executors or administrators shall and do well and truly pay or cause to be paid unto the said (obligees) or the sui-vivor of them (a) As to the apporticument of rents, see ante, Apportion MENT. BONDS. 509 or the executors administrators or assigns of such survivor for No. and durino- the joint natural hves of the said H. H. and W. II. ' ' ' ' ' 1 1 1- ■ p 1 • f 1 • Pai/ment of an and the hie of the survivor of them one annuity or clear yearly Annuity. sum of £ of lawful money of Great Britain free and clear of and from all taxes charges and impositions whatsoever par- liamentary or otherwise (a) and to he paid and payable at or in the entrance to the dining hall of Lincoln's Inn in the said county of Middlesex or at such other place or places in or about London or Westminster as the said {ohliyees) or the survivor of them or the executors administrators or assigns of such survivor shall direct or appoint between the hours of eleven and twelve of the clock in the forenoon of the several respective days and times following (that is to say) [iiame the days of payment] (See ante, p. 189) And also such a like proportional part thereof as shall accrue from and after the last of the aforesaid days of payment next preceding the decease of the survivor of them the said H. H, and W. H. from and up to the day on which such decease shall happen or if the said (ohliyors) or either of them their or either of their heirs executors or administrators shall at any time after the term of five years to be computed frorn the day of the date of the above written obligation be desirous of re- purchasing the said annuity or clear yearly sum of £ and of such his or their intention shall give three calendar months' notice in writing unto the said {obligees) or the survivor of them or without or in lieu of such notice shall pay unto them or him the sum of £ being one half year's portion of the said annuity or &:c. of £ and do and shall on the expiration of such notice or on such payment in lieu thereof as the case may be well and truly pay or cause to be paid unto the said {ohliyees) or the survivor of them or the executors administrators or assigns of such survivor the sum of £ being the original purchase money of the said annuity or clear yearly sum of £ and all and every sum and sums of money which shall then be due and owing to the said {ohliyees) or the survivor of them or the executors administrators or assigns of such survivor for or on account of the said annuity kc. of £ up to and inclusive of the day of paying the same And also for and on account of all costs charges damages and expenses which they or any of (fl) It has been a common practice to add, " except tlie income or [tio- peily tax pujable on tlie same annuity," but this ajipears to be unneccMjury. See 10 & 17 Vict. c. 34, s. 40 ; 5 & Vict. c. 35, s. 103. 510 BONDS. No. CCXXXIX. Payment of an Annuity. them shall or may have been at or put unto for or on account of the nonpayment of the said annuity then the above written obli- gation shall be void and of no effect otherwise shall be and remain in full force and virtue. No. CCXL. Annuity. Obligation. Recitals. Condition. No. CCXL. Bond hy intended Husband to Trustees to secure Annuity to Jus intended Wife, Know all Men &c. Whereas a marriage hath been agreed upon and is intended to be shortly had and solemnized between the above bounden A. and B. spinster And whereas upon the treaty for the said intended marriage it was agreed (amongst other things) that the said A. should execute and give to the above named {trustees) his bond or obligation in the above mentioned penalty with such condition for making the same void as hereinafter is contained Now the Condition of the above icritten bond or obligation is such that if the said intended marriage shall take effect and the said A. shall die in the life- time of the said B. and the heirs executors or administrators of the said A. shall and do well and truly pay or cause to be paid unto the said B. and her assigns one annuity or clear yearly sum of £ of lawful money of Great Britain for and during the natural life of the said B. by four equal quarterly payments on the day of &c. [name the days] without any deduction or abatement whatsoever the first quarterly payment of the said annuity of £ to be made on such of the said days of payment as sliall happen next after the decease of the said A, if the said B. shall then be living or if the said intended marriage shall not take effect or if the said A. shall survive the said B. Then and in any of the said cases the above written bond or obligation shall be void and of no effect otherwise shall remain in full force and virtue. BONDS. 511 No. CCXLI. ,, ^^^„ No. CCXLI. Bond for securing the Payment of an Annuity to a Man and y^nnuiti/ lo a 7 • TT7'j' j^ j7 • T • Man arid liis /ns Wije jor their Lives. jj-a Know fill kc. That &;c. Wliereas the above named (obliyee) obligation. hath contracted with the above bounden (obligor) for the abso- Recitals. lute purchase of one annuity or annual sum of £ to be Contract for -1 7 7- 11- • 1 • ^ • i-r purchase of an paid unto the said {obligee) and Ins assigns during his life and annuity. after his decease to E. his wife and her assigns if she should survive him free from taxes and without any other deduction whatsoever by half yearly payments on the days hereinafter mentioned Together with a proportional part of the said an- nuity or annual sum of £ for the time which at the decease of him the said (obligee) shall have elapsed of the said annuity then growing due And the price and consideration for the purchase of the said annuity or annual sum of £ is £ sterling money of Great Britain and the sum of £ interest or share in capital joint stock Three per cent. Consoli- dated Bank Annuities And ichereas the said (obligee) hath before the execution of tlie above written bond paid the said sum of sterling money to and transferred the said sum of £ Three per cent. Consolidated Bank Annuities into the name of the said (obligor) in the books of the Governor and Company of the Bank of England which payment and transfer the said (obligor) doth hereby acknowledge And ichereas upon the treaty for the said purchase it was agreed that the costs and charges of procuring the said sum of £ upon the said annuity and of preparing and perfecting the securities for the same should be borne and paid by the said (obligor) Now the Condition. Condition kc. That if the above bounden (obligor) his executors or administrators do and shall well and truly pay unto the said (obligee) or his assigns during the term of his natural life one clear annuity or annual sum of £ by half yearly pay- ments on or at the days and times following (that is to say) on the day of and on the day of the first half yearly payment to be made on the day of next ensuing: the date of the above written bond And do wiid shall also if E. now the wife of the said (obligee) be living at his death well and truly pay or cause &c. unto the said Jv D. yearly and every year during the then remainder of iier life a like clear annuity or yearly sum of £ of &c. at or on the 512 BONDS, No. CCXLI. Annuity to a Man and Ids IVife. aforesaid half yearly days of payment the first payment of the last mentioned annuity to be made on the first of the said days which shall happen next after the decease of the said {obligee) And do and shall make all the said payments as well to the said (obligee) during his life as after his decease to the said E, D. if she survive him during the then remainder of her life without any deduction or abatement whatsoever out of either of the said annuities or yearly sums or any part thereof for or by reason of any parliamentary taxes or impositions whatsoever or for or in respect of any other matter cause or thing whatsoever And also do and shall within ten days after the decease of the said (obligee) and E. his wife respectively in case he or she shall die in the interval between any of the half yearly days of pay- ment well and truly pay unto the executors administrators or assigns of the said (obligee) or of the said E. his wife if she sur- vive him a proportional part of the said annuity or annual sum of £ for the time which at the decease of the said (obligee) or E, his wife shall have elapsed of the half yearly payment then growing due Then &c. Obligation. Recital of former bond. No. CCXLII. No. CCXLII. Annuity Bond. Bond for securing an Annuity granted by a former Bond which has been lost. Know all kc. Whereas the said (obligor) by his bond or writino- obligatory under his hand and seal bearing date &c. became bound to the said (obligee) in the sum of £ with a condition thereunder written for making the said bond void on payment by the said (obligor) his heirs executors or adminis- trators to the said (obligee) of an annuity of £ for his hfe by half yearly payments on &c. in every year And whereas all arrears of the said annuity have been paid up and in full to the day of now last past And whereas the said bond has been lost and it hath been agreed between the said (obligor) and the said (obligee) that a fresh bond to replace the one that hath been lost should be executed by the said (obligor) at the expense of the said (obligee) Now &c. if the said (obligor) his heirs &c. do and shall from time to time during the life of the said (obligee) well and truly pay or cause to be paid unto the said (obligee) or his assigns one annuity or &c. of Loss of bond. Condition. BONDS. 513 £ on &c. in every year by even Sec, payments clear of all No. CCXLII. deductions on any account whatsoever [the same to be in lieu Annuity Bond. and full satisfaction of the said annuity of £ secured to the said (obligee) by the said (obligor) as hereinbefore mentioned or recited and all arrears and half yearly payments thereof up to the day of now last past] and the first half yearly payment of £ hereby secured to become due on the day of next ensuing the date of the above written bond or obligation provided the said {obligee) shall be living at that time or if the said hereinbefore recited bond or obligation shall at any time hereafter be found or come to the hands of the said (obligee) or any other person as her agent or any action or suit at law shall be brought sued commenced or prosecuted under or by virtue of that bond or if it shall appear or be proved that any assignment hath been or shall be made by the said (obligee) of the benefit of the same bond Then and in any or either of such cases this obligation &c. Bond to a Trustee for securing an Annuity to a Married Woman purchased with her separate Property, see post, Bonds {Mar- ried Woman). Arbitration Bond, see Arbitration, ante, p. 322. Assignment of a Bond, see Assignments, pp. 360 — 364. BAIL BONDS. Sect. 1. The deffindant, when arrested, "shall remain in custody When required, until he shall have civen a hail hond to the sherirt'or shall have niado deposit of the sum indorsed in the writ of capias, according to the practice of the superior courts of law, 1 & 2 Vict. c. 110, s. 4; Arch. Pr. by Chitty, pp. 737—745, 9th cd. VOL. I. L L 514 BONDS. Bail. Form of the bond. Stamp. 2. As to the form of the bond, it is necessary that it should be made to the sheriff' himself by name of office, and that it be conditioned for the defendant's appearance at the return of the writ, and for that only, lb. uh. sup. 3. The bail bond does not require a stamp, 5 Geo. 4, c. 41 . No. CCXLIII. Common Form of a Bail Bond. Obligation. Condition. No. CCXLIII. Common Form of a Bail Bond. Know all kc. That we C. D. of &:c. {the defe rdant in the action) E. F. of kc. and G. H. of &c. {the hail) are held and firmly bound to I. K. esquire sheriff of the county of in the penal sum of £ [double the sum sworn to and indorsed on the writ^ of lawful kc. to be paid to the said sheriff or his certain attorney executors administrators or assigns for which payment well and truly to be made we bind ourselves and each of us for himself in the whole our and every of our heirs executors and administrators firmly by these presents Sealed with our seals dated &:c. The Condition of the above written obligation is such that if the above bounden C. D. do appear {a) before our sovereign lady the Queen on to answer A. B. of a plea of trespass {h) the said kc. Then this obligation to be void otherwise to remain in full force and virtue. ' C. D. (l.s.) Signed sealed and delivered by the E. F. (l.s.) above named C. D. E. F. and G. H. (l.s.) G. H. (being first duly stamped) in the presence of M. N. O. P. (a) If in the Common Pleas, say, " before her Majesty's Justices at West- minster on &c." If in the Exchequer, "before the Barons of her Majesty's Court of Exchequer at Westminster on &c." {b) Or, according to tiie ac ctiam in the process, if by original, say, "do appear &c. on &;c. wlieresoever, &c. to answer A. B. of a plea &c." {as the plea is). If in the E.\:chequer, on a writ of quo minus, say, "to answer to A. B. the Queen's debtor of a plea of trespass whereby he is less able &c." Or, if on process of contempt, say, " to answer our sovereign lady the Queen of divers trespasses contempts &c. by him lately done and committed." BONDS, 515 No. CCXLIV. No. CCXLIV. Special Bail Bond. Special Bail Bond. Know all Sec. Whereas the above bounden {obligor) was on \ \ the day of taken by the said sheriff in the bailiwick ,, . , , •^ . . -^ . _ _ Recital of of the said sheriff by virtue of the Queen's writ of capias '\s&\xedi arrest. out of her Majesty's Court of Queen's Bench [or " Common Pleas" or "Exchequer of Pleas"] bearing date at Westminster the day of to the said sheriff directed and delivered against the said C. D. and&c. \_as in theicrit] in an action at the suit of A. B. And ivhereas a copy of the said writ together with every memorandum or notice subscribed thereto and all indorsements thereon was on the execution thereof delivered to the said C. D. And whereas he is by the said writ required to cause special bail to be put in for him in the said court to the said action within eight days after execution thereof inclusive of the day of such execution JVow &c. That if the said C. D. Condition. do cause special bail to be put in for him to the said action in her Majesty's said court as required by the said writ Then &c. Sealed &c. No. CCXLV. No. CCXLV. Assignment of the Bail Bond {hy Indorsement). Assignmnit l llie 520 BONDS. No. CCXLVIII. Indemnity {Attorney's Clerk). Condition. said (obligee) of an attorney solicitor and conveyancer for and during such period as the said parties shall mutually agree upon he the said {obligee) paying unto the said {obligor) at or after the rate of £ per annum And whereas the said {surety) hath consented to join with the said {obligor) in the above written obligation as a security and protection to the said {obligee) his executors &c. of from and against all loss or damage that might be sustained by the said {obligee) by reason of the said {obligor) not duly accounting with the said {obligee) for all monies which may come to his hands or on account of the embezzlement misap- propriation conversion or wilful defacement by the said {obligor) of any deeds writings evidences or effects whatsoever which shall come into the hands or possession of the said {obligor) Now the Condition &c. That if the above bounden {obligor) and {surety) their respective heirs executors or administrators or some or one of them do and shall from time to time and at all times hereafter well and truly account to and with the said {obligee) his executors and administrators of and for all monies property and things which shall or may come into the possession custody or power of him the said {obligor) as the clerk and assistant of the said {obligee) And do and shall at all times when required pay over to the said {obligee) his executors administra- tors or assigns all and every sum and sums of money which shall on any account be or appear to be coming due to him from the said (obligor) And do and shall save protect keep harmless and indemnified the said {obligee) his executors administrators and assigns of from and against all embezzlement misappropriation misapplication and conversion by the said {obligor) to the use of the said {obligor) of any monies goods chattels and effects belonging to the said {obligee) his executors administrators or assigns or to any suitor or client And also of from and against all defacements and cancelling or mutilation by the said {obligor) without the knowledge or consent of the said {obligee) or of any person duly authorized by him of any deeds writings evidences instruments books or papers of any description what- soever which shall belong to the said {obligee) his executors or administrators or any suitor or client who shall have deposited the same with the said (obligee) or the said {obligor) as his clerk And if the said {obligor-) shall and do well and faithfully in all things serve the said (obligee) as his assistant in the practice or profession of an attorney solicitor or conveyancer as aforesaid Then kc. ♦ BONDS. 521 No. CCXLIX. ^.^. ^,^Lix. Another Form for a Merchant. Indemnity {Merchant's Now the Condition of the above written obliiration is such That curk). if the above bounden ( Clerk) shall at all times hereafter so long condition, as he the said (C) shall continue in the service of and be em- ployed by the above named {Principal) as his clerk or servant well faithfully and truly serve the said (P.) his master without consuming wasting embezzling losing misspending misapplying or unlawfully making away with any of the monies goods chattels wares merchandizes or effects whatsoever of the said (P.) his master or of any other person or persons whomsoever for which he the said (P.) his heirs executors or administrators shall or may by any law custom or usage whatsoever be anywise answer- able or responsible which shall be committed to his the said (C's) charge care custody or keeping by reason or means of his said service or being clerk as aforesaid Or if the said (C) shall neglect or refuse to account with him the said (P.) his exe- cutors administrators or assigns weekly or oftener if thereunto required by the said (P.) his executors administrators or assigns by reasonable notice in writing under his or their hands for that purpose to be given Then if the said (C.) and {surety) or one of them their or one of their heirs executors or administrators do and shall within months next after due proof thereof either by confession or otherwise make good and suthcient recompense satisfaction and payment unto the said (P.) his executors ad- ministrators or assigns for the said monies goods chattels wares merchandize or effects of him the said (P.) so lost wasted mis- spent or misapplied as aforesaid And also for all such loss damage or charge as he the said (P.) his executors or adminis- trators shall suffer sustain or be put unto for or by reason or means of his the said (CVs) neglecting or refusing to account as aforesaid Then &c. No. CCL. ^^ (.pL. Bond that an Apprentice shall perform the Articles of his To perform ^ ^ . I . Covenant*, Apprenticeship. Now &c. That if the said I. B. the son shall and do from lime to time and at all times during the said apprenticeship well and 522 No. CCL. To perform Covenants. BONDS. truly observe peform fulfil and kee]j all and every the articles covenants clauses and agreements whatsoever in the said inden- ture contained and which on his part are to be performed and shall and do from time to time and at all times during the said term be faithful and just to the said I. L. his master in all his the said I. B.'s accounts receipts payments and all other dealings and doings in anywise relating to the said trade or employment or the affairs or business of the said I. L. and all other matters and things wherein as an apprentice or servant he shall or may be employed by or concerned for the said I. L. his executors, &c. Then &c. No. CCLI. Indemnity {Partnership Accounts). Recitals of copartnership deed. Agreement by father to give a bond. Condition. No. CCLI. Bond for Performance of the Covenants in a Deed of Copart- nership by one who is admitted as a New Partner. Know all &c. Whereas by indenture dated and made between A. G. son of the above mentioned H, G. of &:c. of the first part the said J. P. of the second part and the said F, E. of the third part the said A. G. J. P. and F. E. did thereby agree to be partners in the trade or business of a brewer and in the buying of barley and all other things belonging to the said business from the day of for the term of years from thence next ensuing determinable as therein is mentioned the said business to be conducted at &c. under the names and firm of A. G. & Co. or of &c. as therein is mentioned And it was by the said indenture agreed that they the said J. P. and F. E. their executors or administrators from time to time as the same should be necessary should pay and advance in equal pro- portions so much money as would be sufficient to carry on the said business with proper vigour and effect not exceeding the sum of £ unless two of the said parties should be desirous to increase the same and in that case not to exceed £ unless with the consent of all the said parties and that the said partnership should be managed and carried on under the terms provisions covenants and agreements therein declared and con- tained And whereas the said H. G. previous to the execution of the above mentioned indenture agreed with the said J. P. and F. E. to enter into and execute the above written bond Now &c. That if the said A. G. shall well and faithfully peiform fulfil and BONDS. 323 keep all and every the terms provisions covenants and agree- No. CCLI. meats in the said indenture contained and a'ciemmty any time hereafter sustain or be put unto by reason or on account of the said in part recited bond or obligation or any matter or thins; relating thereto Then &c. {Surety). No. CCLVIII. No. CCLVIII, Bond to indemnifii aqainst vayinq Rent where the Title is in Indemnity ^'' '^ A ■ {Pai/mentof Question. /jenO- Know all &c. Whereas there is a suit depending between the Obligation. above bounden {olligor) and others touching the right and in- Recital of suit, terest in the dwelling house of the said (oblirjee) situate &:c. And whereas the said (obligee) hath agreed to pay the rent of the said house to the said (obligor) yearly as the same shall grow due upon his agreeing to indemnify him therefrom Now Sec. if the Condition, said (obligor) his &c. do and shall well and truly pay or cause to be paid all such rent sum and sums of money charges and damages whatsoever as shall by due proceedings in law be ad- judged or decreed against him the said (obligee) his executors or administrators and all other costs and damages whatsoever which he the said (obligee) his executors or administrators shall sustain or be at by reason of any action suit or forfeiture what- soever which shall or may happen to the said {obligee) his exe- cutors administrators or assigns by reason of paying the said rent or any part thereof to the said (obligor) his executors administrators or assij^ns in manner aforesaid Then &c. No. CCLIX. Indemnity [Pdi/nivnt qf Mortgage Money). No. CCLIX. Bond to indemnify the Purchaser of an Estate against Mortgage 3foneg, where no Evidence can be obtained of its having been •paid off. Know all (fee. Whereas &c. [recite mortgage deed and other Obligation deeds affecting the estate'] And whereas from the recitals con- J|J|fj^"' °^ tained in the indenture of release of the day of and the length of time since the dates and executions of the said recited indentures of the day and the day &c. there VOL. I. M M 530 BONDS. No. CCLTX. is ground to presume that the sum of £ by the indenture indemvity ^^^ secured unto the said {mortqaqee) byway of mortoaoe as (Pai/mcnt of . . ^ ^ ^ c' ' J j n& Mortgage aforesaid together with all interest upon or in respect of the said "^"'■'>- sum of £ has been long since paid off or satisfied but no positive evidence of such payment and release can be obtained ^ at present It was therefore agreed upon the treaty for the afore- said purchase that the said {P.) should be indemnified by the said (V.) against the principal sum of £ and all interest Condition, as aforesaid JVow kc. That if the above bounden (obligor) do and shall well and sufficiently save harmless &:c. the said mes- suages lands &c. comprised in and expressed to be released by an indenture of release bearing even date with the above written bond And the said (P.) and his heirs &c. in respect thereof of from and against the said sum of £ and the interest thereof and every part thereof and of from and against all actions and suits at law or in equity which shall be brought &;c. and all costs &c. in respect of the said sum of £ and interest as afore- said and for or on account of any act matter or thing in anywise relating thereto Then &c. No. CCLX. No.CCLX. Indemnity Bond of Indemnity on paying a Lost Bond. {Lost Bond), Obiio-ation. Knoiu all kc. Whereas the above named master and wardens Recitals of lost and socicty by their bond or obligation under their common seal ''°" bearing date kc. became bound to the above named {obligee) in the penal sum of £ conditioned for the payment of the sum of £ unto the executors administrators or assigns of the said {obligee) at the end of months next after the de- cease of the said {obligee) with such profits upon the same as upon the then last general audit for the stock raised by and among the members of the said society for the making and pre- paring &c. should appear to be due to him and unpaid as in and by the said bond when produced will more fully appear And whereas the said bond is alleged to be lost or so mislaid that the Satisfaction of same Cannot be found And ichereas the said master wardens the bond. .^^^^ society on the day of the date hereof at the request of the said (obligor) and on his promise of indemnity have made him Condition. full satisfaction of and for the said bond Now &c. That if the above bounden {obligor) his heirs executors or administrators or BONDS. 531 anv or either of them do and shall in case the said bond or ob- No. CCLX, liiiation shall happen to be found or come to the hands custody Iniiemmuj ^ . ' ' " Bond). or power of him them or any of them or of any other person for them deliver or cause the same to be delivered unto the then master and wardens of the said society in order to be made void cancelled and destroyed and also shall and do from time to time and at all times hereafter save and keep harmless &c. the said master wardens and their successors of and from &c. for or by reason of the said bond or obligation or any of the money thereby paid or for touching and concerning the same in anywise howsoever Then &c. No. CCLXI. No. CCLXI. Bond to indemnify a Person from a Bill that is Lost, upon his indemnity ,, (Lost Bill). granting another. Ohs. By the 8 & 9 Will. 3, c. 17, s. 3, the drawer of a bill may be required, in case it be lost, to give another bill on his being indem- nified. Know all &c. Whereas the above named (obligee) drew a bill Obligation. No. dated &c. on Messrs. A. &; Co. for the sum of £ ^^u'lf °^^°^^ payable to the order of E. D. which said note was afterwards paid to L. &: Co. and hath since by them been lost or mislaid And ivhereas the said (obligee) at the request of the said L. & Co. Anotlier bill hath given them another bill of the same value and tenor as the S'^*^"* bill so lost on their indemnifying him &c. against all claims and demands to be made upon him in respect of the said lost bill Now Sec. That if the above bounden L. & Co. or either of them Condition, or either of their heirs executors administrators or assigns do and shall at all times hereafter save and keep harmless and indem- nified the said {obligee) his executors &c. and every of them and their and every of their lands tenements goods and chattels whatsoever of and from the payment of the same bill and of and from all and all manner of actions suits claims and demands whatsoever for or on account of the same bill and of and from all damages costs and charges whatsoever which he or they may at any time hereafter sustain bear or be put unto by reason or means of the nonpayment of such lost bill And if the said L. & Co. do and shall when and as soon as the said note shall be found deliver the same to the said {obligee) Then <&:c. M M 2 532 BONDS. No. CCLXII. No. CCLXII. To Refund Bondfvom Legatee to Executor on Payment of Legacy to Refund ^^s^^y- incase of Deficiency of Assets (a). Bequest of Know all &c. [recite ivill of testator bequeathing legacy, death ^f ' of testator, and probate of his will] And whereas the amount of That the •■' • i i • i i amount of the the debts of the said testator hath not yet been ascertained but debts has not ^^ j^ believed that the assets of the said testator will be sufficient tained, but to pay his debts and the several legacies given by his said will are sufficient ^^c? whei'cas the Said (obligee) [executor] hath accordingly assets. agreed to pay to the said (obligor) his said legacy of £ Agreement to j^| entering into the above written obligation with such con- pay legacy. s » _ _ Condition that dition as is hereinafter contained Now the Condition of the above if personal written obligation is such that if the personal estate of the said estate shall , t , i, rr- • i • • j. j i j. prove insuffi- testator deceased shall not prove suthcient to pay his just debts cient to dis charge debts shall refund his proper portion, and funeral and testamentary expenses and all the pecuniary andfegacies, legacies given by his said will Then if the said (obligor) his heirs executors or administrators shall within days next after notice thereof to him or them given in that behalf and on and legatee proof of such deficiency w^ell and truly repay and refund to him the said (obligee) his executors administrators or assigns the said sum of £ so paid to him as aforesaid or so much thereof as shall be more than was coming due to him out of the per- sonal estate of the said (testator) in respect of the said legacy of £ given to him by the said in part recited will as afore- said in proportion to the other pecuniary legacies under the said and shall in- will A7id also if the said (obligor) his heirs executors or ad- cuto?fi^om''al"i ministrators shall from time to time and at all times hereafter demands. g^ye defend keep harmless and indemnified the said (obligee) his executors and administrators and the estate of the said testator of and from all costs damages and expenses which shall or may happen or come to him or them or the estate of the said tes- tator for or by reason of the said (obligee) having paid the said (obligor) the said sum of £ in full for the said legacy as aforesaid or any matter cause or thing relating thereto Then &;c. (a) As to refunding legacies, see Wms. on Executors, Part III., Bk. 3, s. 10. BONDS. No. CCLXIII. 533 No. CCLXIII. Bond of Indemnitii to a Purchaser against Two Legacies and Indemnity ■' ^ 7 • 7 7 7-\ • 7 {Charses under an Annuity charged on Hereditaments which the JJevisee has a Will). contracted to Sell. Knoiu all &c. Whereas kc [recite the ivill of R. P. whereby Obligation. he bequeathed two legacies of £ each to his two grand- JJfjJ''^'^' °^ children S. P. and T. P. upon their attaining their age of twenty - one and an annuity of £ a year to his brother H. P. and that the said testator charged the said legacies and annuity upon the hereditaments thereinafter devised to his son J. P. in fee] And whereas the said {Purchaser) hath contracted with the said (Vendor) for the absolute sale toiiim of all &c. and the same pieces or parcels of land hereditaments and premises have been duly conveyed to the said (P.) his heirs and assigns in and by an indenture bearing even date with the above written bond And ichereas upon the treaty for such purchase it was agreed by and between the said (F.) and (P.) that the said (F.) should enter into the above mentioned bond by way of indemnity to the said (P.) against the two said legacies of £ and £ and the said annuity of £ so given and bequeathed by the said will with a condition for making void the same as herein- after is expressed Now kc. That if the said (V.) his heirs exe- Condition, cutors or administrators shall pay or cause to be paid to the said S. P. and T. P. when they shall respectively attain the age of twenty-one years the said legacies or sums of £ and £ and interest according to the direction of the said will and shall at the costs and charges of the said (F.) his heirs and assigns produce and show to the said (P.) his heirs and assigns good and effectual receipts and discharges for such legacies duly signed by the said S. P. and T. P. after they shall have attained their respective ages of twenty-one years and shall at the like costs and charges give to the said (P.) his heirs and assigns true . and attested copies of such receipts and discharges if he or they shall request the same And shall pay to the said H. P. the said testator's brother the said annuity of £ when the same shall from time to time become due and payable And siudl from time to time and at all times hereafter save defend keep harm- less and indemnified the said (/-*.) his heirs and assigns and his and their lands tenements g(Kjds and chattels and particularly tiie said hereditaments and premises so purchased by the said 534 BONDS, No. CCLXIII. (P.) as aforesaid of from and against all actions suits at law or Indemnity {n equity claims demands ejectments and evictions by reason or (Cliarges under ' , r ii ■ i ^ i • r x- j a Will). on account or the said two legacies or sums ot x and £ and all interest which hath accrued or may accrue due thereon respectively and of from and against the said annuity of £ so bequeathed as aforesaid and also of from and against all costs charges and expenses which he or they may sustain expend or be put unto for or in respect of the said legacies &c. or the said annuity (fee. or any or either of them or any part or parts thereof respectively or of any matter or thing relating thereto Then &c. No. CCLXIV. No. CCLXIV. Sale. Joint and Several Bond of Indemnity on the Sale of an Estate. Obligation. Know all &c. Whereas by indenture bearing date &c. divers Recital of con- lands and hereditaments situated at were granted and con- veyance, veyed to the above bounden {obligors) in consideration of the Agreement to sum of £ And whefeas in consideration of the sum' enter into bond. ^^ £ p^j^j ^^ ^^ g^j^ (Q ) before the date of the above written bond or obligation the receipt whereof they the said (O.) do hereby acknowledge and in pursuance of an agreement in writino- bearing date and entered into with them the said (O.) they the said (O.) have agreed to enter into the above written Condition. bond &c. subject to the condition hereinafter contained Now &c. if the said (O.) or either of them their or either of their heirs executors and administrators do and shall from time to time and at all times hereafter at his and their own costs and charges save defend keep harmless and indemnified the said {Pur- chaser) his heirs appointees executors administrators or assigns and every of them and his and their and every of their lands tenements goods chattels and effects and in particular the said manor &c. hereinbetbre described of from and against all and all manner of ejectments evictions suits at law or in equity debts payments costs losses charges damages and expenses which from time to time or at any time or times hereafter shall or may be brought sued or prosecuted against or incurred paid and sus- tained by the said (P.) his heirs &c. by reason of any entry or entries claim or claims to be made in any suit at law and in equity against the said (P.) by any person or persons whomso- BONDS. 535 ever in respect of the said manor or by reason of any defect of No. CCLXIV. title [if any exist] and if the said (O.) or one of them their or one -^"^g- of their heirs executors or administrators do and shall in the event that the said (P.) his heirs &c. for the want of a title to the said manor &:c. or any part of the same shall be evicted in any suit at law or in equity pay or cause to be paid to the said (P.) his heirs &c. any sum which shall be the then value of the said manor &c. to be estimated by two indifferent persons one to be appointed by the said (O.) their heirs &c. and the other by the said (P.) his heirs Sec. or in case they cannot agree then by such person as they shall appoint or in case either party shall refuse or neglect to appoint an arbitrator then by the referee of the other party Then &c. No. CCLXV. No. CCLXV. Bond of Indemnity to Irustees under the Obligor's Marriarje Tiu/emniiy Settlement for having permitted him to convert Trust Monies to (^''"*'^^*)- his own use. Know alike. Whereas kc. [recite marriage settlement'] J.?2bligei's) or the partner or partners for the time being." N N 2 548 BONDS. Running Account. No. CCLXXV. executors or administrators to the said (obligee) (a) liis exe- cutors &:c. on or as part of the balance of an account between them either for principal money or interest money lent advanced and paid bills discounted or accepted commissions or on any other account whatsoever free and clear from all deductions &c. being the same money as is or is intended to be secured by an indenture bearing- even date with these presents and made be- tween the said (obligor) of the one part and the said [obligee) of the other part Then &;c. No. CCLXXVI. Money left in Trade. Obligation. Recital of debt from one part- ner to another. Condition. No. CCLXXVI. Bond for the Payment of Money left in Trade. Know all &c. Wliereas the above bounden {obligor) was on the day of now last past and is still indebted unto the above named {obligee) in the sum of £ for money book debts and other effects belonging to the said (obligee) as his part or share of the effects which he lately held in partnership with the said (obligor) And it was agreed that the said sum of £ should be left in the hands of the said (obligor) till the expiration of years from the day of now last past or till the decease of the said (obligor) which shall first happen provided the said (obligor) should elect or think proper to continue the said sum in his hands A^id that interest at the rate of by the year and in that proportion for any less time than a year shall be paid to the said (obligee) his executors and administrators for the said sum of £ at the times and in manner hereinafter mentioned Noio &c. That if the said (obligor) his heirs executors or administrators shall pay or cause to be paid unto the said (obligee) his executors administrators or assigns the sum of £ on the day of 18 or the day of the decease of the said (obligee) whichever shall first happen And if in the meantime and until payment of the said sum of £ the said (obligor) his heirs executors and ad- ministrators shall pay or cause &c. unto the said (obligee) his executors &c. interest for the said sum of £ at the rate of per cent, per annum half yearly upon the day of (a) Or, where there are partners, " to the said (obligees) or the partner or partners for the time being in the said house or his or their executors &c." BONDS. 549 and the day of in every year the first pay- No. CCLWVl raent to be made on the day of next ensuing pro- „ '',..' vided the said sum of £ shall not be paid ni the meantnue Trade. And in case the said sum of £ shall be paid between or in the interval of the said days of payment then also shall make payment of a proportional part of the said interest for any less time than for half a year at the same time and together with and in addition to the said principal sum of £ Then &c. POST-OBIT BONDS. 1. Definition. 2. Statutory Provisions as to. 3. Stamp Duty. Sect. 1. A post-obit bond is a security for the payment of a greater Definition, sum than the sum advanced, where either the payment depends upon a contingency, or, the payment being certain, the time of payment depends upon a contingency. This is a security of a questionable nature, the validity of which has often been disputed with success in a court of equity, where inadequacy of price is deemed to be a suffi- cient ground for affording relief against such bonds, Gowland v. De Faria, 17 Ves. 20. 2. As a post-obit bond is a bond for a sum certain, or at a time Statutory pro- that may be i-endered certain, and is thei-ofore a matter of computa- visions as to. tion, it is held tliat it does not come within the stat. 8 & 9 Will. 3, c. 11, s. 8; but within the stat. 4 & 5 Ann. c. IG, s. 12; Wardell V. Fermor, 2 Campb. 285 n ; Cardozo v. Hardy ^ 2 Moore, 220 ; Murray v. Earl of Stair, 2 B. & C. 82. 3. As to the stamp on the payment of a sum certain, see ante, Stamp duty. Ohs. 3, Bond for Payment of Money. No. CCLXXVII. ccLXXvil, Common Form of a Post- Obit Bond. Posi-Obit. Know all &c. Whereas the above named (obligee) hath con- Obligation, tracted and agreed with the above bounden {oblinor) for the it-cital of con- '^ 1 • I I I • I tract tor pur- jnuchase oi' the sum of £ to be paid to her tlie said jji^yj.. 550 BONDS. No. CCLXXVII. Post- Obit. Payment of consideration. Agreement to give bond. Condition. (ohlif/ce) her executors administrators or assigns in the event of A. B. departing this hfe in the lifetime of the said {ohlhjor) but not otherwise at or for the price or sum of £ And whereas in performance of the said recited contract she the said {ohligee)\\2ii\\ paid the said sum of £ of lawful &c. unto the said [obligor) at or before the sealing and delivery of the above written obligation the receipt and payment whereof accordingly the said {obligor) doth hereby acknowledge And whereas upon the treaty for the purchase of the said contingent sum of £ it was agreed that the payment thereof should be secured by among other securities the bond of the said {obligor) with the condition &c. Now &c. That if the said A. B. should depart this life in the lifetime of the said {obligor) Then and in such case if the said {obligor) his heirs executors or administrators shall pay or cause to be paid unto the said {obligee) her &c. within calendar months next after the decease of the said A. B. as aforesaid the sum of of &c. Or in case the said {obligor) shall happen to depart this life in the lifetime of the said A. B. Then &c. No. CCLXXVIII. Quiet Enjoyment, Obligation. Recital of con- tract for pur- chase. Recitals of defects in title. No. CCLXXVIII. Sond from a Vendor of an Estate for quiet Enjoyment, free from all Incumbrances, the Estate being subject to the Payment of Portions under a. Marriage Settlement. Know all kc. Whereas the above named {obligee) hath con- tracted with the above bounden {obligor) for the absolute pur- chase of all (fee. and the inheritance thereof in fee simple exone- rated and discharged from all incumbrances whatsoever for the price or sum of And lohereas upon investigating the title of the said (F.) to the said hereditaments it hath been discovered that the same are subject to the payment of certain sums of money for the portions of the younger sons and daughters of the said (F.) and M. his wife by virtue of certain indentures of &c. And ivhereas the said (F.) and M. his wife have one younger son named {T.) who is an infant under the age of twenty-one years and is therefore incompetent to release the said purchased premises and it is possible that there may be other issue hereafter born of the said (F.) and M. his wife [recite conveyance to purchaser, his heirs and assigns'] And whej^eas upon the treaty for the said purchase in consideration of the premises BONDS. 551 it was agreed that the said (T^.) should guarantee and secure to pp, ^°- ,,, the said (P.) his heirs and assigns the quiet and peaceable en- ^J.^^ joyment of the said purchased hereditaments against all persons Enjoyment. whomsoever as hereinafter is expressed A^ow &c. That if the Agreement to said (P.) his heirs and assigns shall from time to time and at ^"tey i"to a all times hereafter peaceably and quietly have hold and enjoy all (^^jj^jUjio^ and every the said lands and hereditaments conveyed and as- sured by the said recited indenture of even date with the above written obligation or intended so to be and receive and take the rents issues and profits thereof and of every part thereof without the let suit trouble eviction interruption claim or demand whatsoever of from or by any person or persons whomsoever (a) And also if the said (F.) his heirs executors or administrators shall and do from time to time and at all times hereafter well and effectually save defend keep harmless and indemnified the said (P.) his heirs and assigns and the hereditaments so con- veyed to him as aforesaid and every part thereof as well from and against the portions of the said (so7i) and other the younger children or child of the said (F.) and M. his wife if any there should be and from and against all former and other gifts grants bargains sales mortgages leases jointures dower right and title of or to dower estates titles charges and incumbrances whatsoever which now have been or which at any time hereafter may be made done executed committed suffered or created by the said (F.) or any other person or persons whomsoever (a) Then &c. No. CCLXXIX. ^^^N.^^ Condition of Bond of Indemnity against Portions. Against Ohs. It will be observed that the last precedent is for quiet enjoy- ment against all persons and against all incumbrances. The following form is applicable where an estate was limited to trustees for a term of years for raising portions for younger children, and from wliom a release could not be obtained on the sale of part of the estate. The condition is restricted to the particular claims in question, which, under ordinary circumstances, is as extensive a guarantee as the piu-chaser can reasonably require. Know all (fee. [insert the. necessary introductory recitals of facts] Condiiion to Noil) the Condition of the above written obligation is such that ",",,^1,',"" ,,or- if the above boundcn (ohliyors) or either of them tlicir or either «'"'»*• of their heirs executors or adininistratf)rs do and shall front time (a) See Obs. before next precedent. 552 BONDS. No. CCLXXIX. Against Portions. Quiet enjoy- ment. to time and at all times hereafter until the said purchased pre- mises shall be properly and legally discharged from the said term of 500 years and the trusts thereof and until such dis- charge legally executed shall be delivered to the said (P.) his heirs or assigns well and sufficiently save keep harmless and indemnified the said (P.) his heirs and assigns and the said hereditaments and premises so purchased by the said (P.) as aforesaid comprised in the same teim of from and against all claims and demands whatsoever of or by all and every or any the younger children and child of the said {settlor) and his wife and the respective executors administrators and assigns of such younger children or child or any other person or persons claiming or to claim any estate or interest from or under or in trust for them or any or either of them of in or to the said premises or the rents issues or profits thereof for or in respect of any portion or portions or any share or shares thereof which can shall or may be raised or raiseable under or by virtue of the trusts of the said term of 500 years or otherwise for or in re- spect thereof And also of from and against all costs charges damages and expenses which he the said (P.) his heirs and assigns shall or may at any time hereafter pay sustain or be put unto for or by reason thereof And also if the said (P.) his heirs and assigns shall and may from time to time and at all times hereafter have hold and quietly possess and enjoy all and every the said hereditaments and premises so purchased by him and conveyed or intended so to be as aforesaid and receive and take the rents and profits thereof and of every part thereof without any interruption denial let suit eviction claim and demand what- soever of or by any person or persons whomsoever claiming or to claim any estate right title or interest therein by from or under the aforesaid term of 500 years or the trusts thereof or any uses trusts powers or limitations contained in the said recited settle- ment affecting the said premises or otherwise in respect thereof Then &c. No. CCLXXX. Leaseholds. Obligation. Recital of leases. No. CCLXXX. Bond of IndemnitTj on the Sale of Part of the Premises held under a Lease ac/ainst the Rent reserved in tJie Lease, and for quiet Enjoyment of other Premises, in consequence of a Defect in the Title. Knoic all &:c. Whereas [recite two leases of different dates granted to obligor] And whereas [recite defect in the title of the BONDS. 553 second lease] And whereas [recite assignment of the leasehold No. CCLXXX. premises from obligor to obligee} And whereas upon the treaty Leaseholds. for the sale and the assignment expressed to be made in or by Ap;ieement to the said in part recited indenture bearing even date with the enter into bond, above written obHgation it was agreed that the said (obligor) should enter into the said bond subject to the condition herein- after contained for makin"- the same void Now &c. That if the Condition, said {obligor) his heirs executors or administrators shall from time to time and at all times hereafter well and effectually save defend keep harmless and indemnified such of the said premises as are comprised in the lease bearing date the as are expressed to be assigned by the said indenture of assignment bearing even date herewith and the said (obligee) his heirs exe- cutors administrators and assigns and every of them of from and against the said yearly rent of £ reserved in the said in part recited indenture of &c, and of from and against all actions &:c. And also if the said {obligee) his executors &:c. shall and may at all times during the residue of the said term demised by the said indenture of lease bearing date &c. peaceably Sec. have &c. such of the premises comprised in the said indenture &c. without the let suit trouble interruption or disturbance of from or by the said A. B. (fee. but subject to the covenants and agreements contained in the said indenture of lease bearing date the (fee. [the first lease] so far as the same are applicable to such of the premises as are comprised in the said indenture of assign- ment as are expressed to be thereby assigned discharged of the said yearly rent Then (fee. No. CCLXXXI. ccLxxxi. Bond to Repair a Road. Repairing a ^ Road. Know all kc. Whereas the above bounden (Obligors) have obligation. contracted and agreed with the said ( Trustees) above named at Recital of cou- their own costs and charges well and sufficiently to repair and amend from time to time and at all times wlien and where needful a certain road commonly called beginning at and extending from to comprising a distance of yards more or less And also all and singular the drains ditches af|ucducts and conduits adjoining to or under the said road for and during the term of years commencing from the 554 BONDS. No. CCLXXXI. Repairmg a Road. Condition. day of next ensuing the date of the above written obH- gation the said (O.) being paid yearly by the said {T.) during the said term after the rate of £ per mile by equal half- yearly payments in every year during the said term the first payment thereof to commence and be made on the day of next ensuing the date of the above written obligation And the said (O.) have also agreed with the said (T.) to find and provide sufficient materials and tools at their own expense at all times during the said term for the purpose of repairing and keeping in repair such part of the road as aforesaid And all the drains ditches and conduits thereof made or to be made to leave in good and sufficient repair and condition at the end of the said term but if the said (O.) or the said {T.) or any two or more of them should be dissatisfied with the said contract and should give to each other three months' notice in writing of their intention to give up or vacate the contract that then it shall and may be lawful to and for the said parties respectively giving such notice in the first or second year to vacate or make void the said contract at the expiration of such notice respec- tively and the same shall be vacated and made void accordingly Now the Condition therefore of the above written obligation is such That if the above bounden (O.) or any of them their or any of their heirs executors administrators or assigns shall at their own proper costs charges and expenses from time to time and at all times when and where needful during the said term of years well and sufficiently uphold maintain repair support cleanse and keep the said part of the said road hereinbefore described and every part thereof and all and singular the drains ditches and conduits adjoining or belonging to or under the same with all and all manner of needful repairs amendments and works whatsoever And also shall at their own expense provide suffi- cient materials and tools for the purposes aforesaid to the satis- faction of the ( T.) or such person or persons as they shall appoint according to the true intent and meaning of the said contract and of these presents And if at the end or other sooner determi- nation of the said term of years the said (O.) shall leave the same part of the said road and premises aforesaid well and sufficiently repaired and amended Then &c. BONDS. 555 No. CCLXXXII. ccLxxxii. Condition in Bond for replacing Stock. "^"stlck"^^ Ohs. An ad valorem stamp, reckoned on the value of the stock on Stamp duty, the day of the date of the bond, or either of the ten days preceding. Now kc. That if the above bounden (obligors) or either of Condition. them their or either of their heirs executors or administrators shall on or before the day of next ensuing duly purchase and transfer or cause to be purchased and transferred the sum of £ 3 per cent. &c. in the books of the Governor and Company of the Bank of England to or in the name or names of the said (obligee) his executors administrators or as- sions and do and shall in the mean time and from time to time well and truly pay or cause to be paid to the said (obligee) his executors administrators or assigns such and the same sum and sums of money as the dividends of the said sum of £ 3 ])er cent. Sec. would amount to if the same had not been sold out but had remained in his name and at such and the same several days and times as the same dividends would in that case have become payable without any deduction whatsoever [except in- come tax] Then &c. No. CCLXXXIII. ^^^N^,„ Bond of Resignation as Master of a Free-school, in case of To Resign Negligeiice, Sfc. Know all &c. Whereas the court of assistants of the above Obligation. named company in pursuance of the trust in them reposed did Recital of on (fee. elect and choose the above bounden (Obligor) to be chief schoolmaster at in the county of founded and en- dowed by &c. deceased during his diligent and faithful discharge of his duty in such behalf Now &c. That if the said (O.) from Condition, time to time and at all times hereafter during his continuance in the said place or office of schoolmaster shall observe and keep all rules and orders already made or to be made by tlie said company for the better regulation of the said school and scholars And shall diligently and carefully perform his (hity and office in the said place of chief schoolmaster of the suid school in all respects for the benefit and credit of the said school 556 BONDS. No. CCLXXXIII. To Resign Office. according to the trust in liim reposed by the said company And shall within months after notice to him given or left in writing for him at the said school under the hands of the master and wardens of the said company or any three of them peaceably and quietly leave surrender and resign his said place of chief schoolmaster together with the possession of the said school and school house with the appurtenances Then &c. No. CCLXXXIV. To Resign Living. Obligation. Recital that church is vacant. Agreement to reside. To resign in favour of pa- tron's son. No. CCLXXXIV. Bond to reside upon a Parsonage, and to resign in Favour of the Patron, Ohs. Formerly, general as well as special bonds of resignation were held good at law, and a court of equity would interfere only when a bad use was attempted to be made of such bonds ; but in the well-known case of the Bishop of London v. Ffytche, the House of Lords held that a presentation after a general bond of resignation was illegal, and consequently that a bishop could not be compelled, under such circumstances, to induct the person presented to him, 2 B. P. C. 211. Since that decision, special bonds of resignation have been held good, Lord Sondes v. Fletcher, 5 B. & A. 835 ; Fletcher v. Lord Sondes, 1 Bligh, N. S. 144 ; and by the 9 Geo. 4, c. 94, they are now, in confirmation of the common law, made valid in specified cases. See Tudor's L. C. on Real Prop. pp. 163 — 165. Know all &c. Whereas the rectory of the church of in the county of and diocese of is now vacant by the death of L H. clerk the last incumbent therein And the above named (obligee) being the patroness of the said rectory and church is about by writing under her hand and seal to present the above bounden (obligor) to the bishop of the said diocese To the end that he the said (obligor) may be admitted instituted and inducted into the said rectory and church of aforesaid And whereas the above bounden (obligor) hath agreed to be personally resi- dent in the said parish of so long as he shall continue rector or incumbent there without procuring or accepting any qualification or licence from any person or persons for dispens- ing with his the said (obligor's) residence in or upon the said parsonage And whereas the said (obligee) hath two sons who are now infants but probably one of the said sons may be desi- rous of taking holy orders and of being presented to the said BONDS. 557 rectory and the said (obligor) hatli agreed in that event to resigrn ^^j^Jj^j^, the said rectory or living upon the request of the said {obligee) y/^^^-„„ or the owner of the said rectory for the time being in order that Living. any son so taking holy orders may be presented thereunto Now &c. That if the said (obligor) shall procure himself to be Condition. legally admitted instituted and inducted into the said rectory as aforesaid And shall afterwards continue to reside in and upon the said parsonage of &c. for so long time as he shall be rector there without procuring or accepting any qualification or licence from any person or persons whomsoever whereby to dispense with the said (obligor's) residence in or upon the said parsonage And also if either of the said sons of the said (obligee) shall take orders and the said (obligee) or the owner of the said rectory for the time being shall ]iresent such son of the said (obligee) to the said rectory and if the said (obligor) within calendar months after request made to him for that purpose shall resign the said living to the bishop of the diocese for the time being and cause such resignation to be accepted so that the said rectory may become vacant And also within the same month give notice of such resignation to the said (obligee) her executors administrators or assigns Then &c. CERTIFICATES. Certificates of Acknowledgment of Deeds by Married Women, see post, Disentailing Deeds. No. CCLXXXV. cclSxv. A Certificate by the Mayor of a Corporation of the due Executi,m „/ a Execution of a Deed. City of } I A. B. mayor of the city of aforesaid do 5 hereby certify to all persons whom it may concern That C. D. of in the county of did on the day of the date hereof sign and seal and as his voluntary act and deed delivtsr 558 CERTIFICATES. No. unto E. F. of Sec. aforesaid one deed indented bearing- even date CCLXXW ,. \' with these presents made or expressed to be made between the Execution of a , ^ ' Deed. Said C. D. of the one part and the said E. F. of the other part and that he did execute the same in my presence and in the pre- sence of the witnesses whose names are indorsed on the back of the said indenture and which said indenture is annexed to this present certificate In testimony/ of the truth hereof I the said A. B. have hereunto put my hand and affixed the seal of the said city and corporation this day of &c. A. B. Mayor. ccLx^xxvi. No. CCLXXXVI. Of Mortgage A Certificate of a Mortgage being paid off. being paid off. Obs. A certificate of this kind, which is required by the Registry Acts, must be on unstamped parchment, and signed (not sealed) by the mortgagor and mortgagee in the presence of two witnesses, who must prove upon oath, before the registrar or his deputy, the signing of the same. And if the witnesses are not present at the payment of the money, the mortgagor and mortgagee must acknowledge it to be satisfied. The certificate is then to be filed by the registrar, to remain on record. In the act relating to Middlesex, the certificate is con- fined to mortgages only, and does not extend, as in the other acts, to judgments and recognizances. To the Registrar of Riding in the county of York or his lawful Deputy. We the said I. H. of &c. and D. W. of &:c. respectively mort- gagor and mortgagee in a certain indenture of mortgage bearing date the day of and made between the said I. H. of the one part and the said D. W. of the other part (a memorial whereof was registered in the said office the day of near twelve at noon in book marked or called page and number ) Do hereby certify to the said registrar or his deputy that all monies due owing and secured in the said in- denture are fully paid and satisfied in discharge thereof And we do hereby request that an entry may be made of such payment and satisfaction in the margin of the said register book opposite to the entry of the said memorial as the act of CERTIFICATES. 559 par liament in that case directs As witness our hands this _^-^'°- _. l^ L- 1-* A. A, .V \ 1 • ^^^y"^ „ OfMort^a^e 1 . -ti . being paid off. D. W. Witnesses to the signing hereof G. L. H. B. No. CCLXXXVII. Certificate of an Articled Clerk having regularhj served his Clerkship. And I do hereby cei'tifij that the said A. B. has duly and faithfully served under his articles of clerkship [or " assignment," as the case may he] bearing date &c. for the term therein ex- pressed and that he is a fit and proper person to be admitted an attorney. No. CCLXXXVII. Service of Clerkship. COMPOSITION. 1. Modes of Arrangement hetzceen a Debtor and his Creditors. Deed of Inspection. Deed of Composition. Letter of Licence. Assignment of Debtor's Estate. 2. Assignment for a Composition by Deed or Parol. 3. Assent of the Creditor expressed or implied. 4. Terms of the Contract to be strictly complied with by Debtor. 5. Wfien Securities can be retained. G. Composition Contracts must be fair. Covenant not to sue. Release. Assignment of a Person's Pro- perty in Trust, when valid. No Preference in Payments un- der a Trust Deed. 1 1 . When Assignment for benefit of Creditors is revocable. Ai-rangements by Deed undei- the Baiikrupt Law Consolidation Act, 184ree v. Tripp, 15 M. & W. 23. 3. The assent of a creditoi- to a composition contract is necessary to Assent of the . , . n. , • 1 1 • 1 -.1 1 creditor, ex- make It bindmg on hmi ; but this assent may be either expressed or pressed or implied, Butler v. Rhodes, 1 Esp. 236 ; and a verbal promise to ac- implied. cept a composition and execute the deed will prevent the creditor from suing for the original cause of action, Bradley v. Gregory, 2 Campb. 383; Reay v. White, 1 C. & M. 748. So in equity, creditors are in general as much bound by acting under a deed of composition as if they had signed the deed. Ex parte Sadler, 15 Ves. 52 ; but a creditor is not bound by a composition deed to which he is a party, if he have been induced to sign it by any misrepresentation made to him, Cooliynj v. Noyes, 6 T. R. 263 ; Wenham v. Foivle, 3 Dowl. P. C. 43. 4. If the terms of the composition are not strictly complied with by Terms of the . , 1 /. . • I !• ^- n 7 contract to be the debtor, the creditor is released from his obligation, Lranley v. strictly com- Hillary, 2 M. & S. 120; Ovghton v. J'rottcr, 2 Nev. & M. 71; plied with by and a court of equity will not relieve the debtor, if he do not strictly perform the agreement, 1 Eq. Ab. 28 ; Rose v. Rose, Ambl. 332 ; Blackenzie v. 31achenzie, 16 Ves. 372. So where the creditors had agreed to take a composition, and after the first payment the debtor became a bankrupt, it was held that the creditors were entitled to prove under the commission for the residue, Ex parte Bennet, 2 Atk. 528 ; Ex parte Vera re Palmer, 1 Rose, 281 ; Ex parte Fed, lb. 434. 5. If the composition deed contain no stipulntion respecting securi- When secu- , • 1 T I 1 1 I i I ritu-s can be ties, a creditor may retain them, provided he deduct the sum to be r^,tai„ed. recovered upon the security, and take a composition for no more than what remains due, Thomas v. Courtney, 1 B. & Aid. 1. But where a creditor having received the full amount of his composition, and given the debtor his release, recovered sums on bills formerly given as a security, such sums have been considered as money received to the debtor's use, Stoch v. Marvson, 1 B. & P. 286. So where a creditor, after having executed a deed of composition, refused to set the amount of his debt to his name, upon the ground of his having a security, he was held to have bound himself to the extent of his then existing debt, and that he could not recover upon the security, 7/^//v7/// V. Wall, 1 B. & Aid. 103; S. C. 2 Stark. 195; Holmer v. Viner, VOL. I. O O 562 COMPOSITION. Composition. Composition contracts must be fair. Covenant not to sue. 1 Esp. 131. As to filling up a blank in a deed after execution, see post, Deeds ; Hudson v. Mevett, 5 Bing. 368 ; Fazakerlij v. M'Kjiujht, 6 £11. & Bl. 795. 6. A fair and equal composition contract, without fraud or con- trivance, will be established both at law and in equity ; but any secret ao-reeraent between a debtor and a cieditor, to secure to the latter payment of a sum beyond that secured to the others, is not only void- able but absolutely void at law, Cockshott v. Bennett, 2 T. R. 763; Jackson v. Lomas, 4 T. R. 166 ; Feize v. Randall, 1 Esp. 224 ; Lewis V. Jones, 4 B. & C. 511 ; Ili(j(jins v. Pitt, 4 Exch. 312. Courts of equity will not enforce any agreements securing to some creditors who had executed a deed of composition a greater advantage than the other creditors would have under the deed, and without their knowledge. Child v. Danhridge, 2 Vern. 72; Middleton v. Onslow, 1 P. Wms. 708 ; Mawson v. Stock, 6 Ves. 300 ; Cecil v. Plaistow, 1 Anst. 202; Fawcett v. Gee, 3 Anst. 910. A composition deed contained a release of the debtor subject to a proviso, making the release void on non-payment of any of the instal- ments covenanted to be paid by the deed ; it was held, that as against a creditor who had acceded to the deed, but by means of a second arrangement had received more than the amount of the whole composition, the release was absolute, although the instalments had not been paid according to the covenant, Ex parte Oliver re Hodgson, 4 De G. & Sm. 354; see Ahager v. Spalding, 4 Bing. N. S. 407. A debtor may recover back money which he has been compelled to pay in consequence of any private bargain with a creditor, Smith v. Cuff, 6 M. & S. 160 ; yet any advantage which a creditor may obtain, not in fraud of the other creditors, has been held to be good, Feize v. Randall, 6 T. R. 146 ; and a preference may be rendered valid in equity by the agreement being notified to the other creditors and sureties, Jachman v. 3Iitchell, 13 Ves. 586; Lee v. Lochhurt, 3 My. & Cr. 302. By the 12 & 13 Vict. c. 106, s. 230, it is provided, that where, at two successive meetings of ci-editors, after due notice given, nine-tenths in number and value of those present agree to accept a composition, the court may annul the adjudication of bankruptcy. The mode of voting in deciding upon the composition is prescribed by the 231st section of the same act. In order to render a composition under those sections binding on all the creditors of the bankrupt, the offer of composition must be made to all the creditors, and not confined to nine-tenths in number and value of the creditors who have signed the composition agreement, Taylor v. Pearse, 2 H. & N. 36; 3 Jur., N. S. 917; 26 L. J., Exch. 371. 7. A covenant not to sue the debtor at all is a release, and the covenant may be pleaded in bar of an action ; but a covenant not to sue within a given time is not a release, but a covenant, and remedy COMPOSITION. 563 may be had on the covenant, Curivil v. Edrvards, 1 Show. 330 ; Composition. Lacij V. Kinaston, 1 Ld. Raym. 690 ; S. C. Holt's Rep. 178 ; S. C. 1 Salk. 575; Dean v. Nervhall, 8 T. R. 168; Ford v. Beech, 11 Q. B. 85-2 ; Webb v. Spker, 13 Q. B. 898. 8. A release of partnership debts executed by one partner concludes Release, the firm, contrary to the general rule, that one paitner cannot bind another by deed, Arton v. Booth, 4 B. Moore, 19'2; Hawhsham v. Parkins, 2 Swanst. 539; Coll. on Part. p. 311, 2nd ed. If a release is to be given to only one out of two or more joint debtors, it must be expressly so stated, otherwise it will operate as a discharge to both, Solli/ V. Forbes, 2 Brod. & Bing. 38 ; see Coll. on Part, p. 429, 2nd ed. Although a release to one partner is generally a release to all, yet a covenant not to sue one of several partners will not operate as a release to the others, because the use of such an instru- ment evidences an intention on the part of the covenantor to avoid the legal effects of a release to co-partners, Hutton v. Fijre, 1 Marsh. 603 ; Coll. on Part. p. 431, 2nd ed. 9. An assignment by a person not a trader, or not subject to the Assignment ot bankrupt laws, of all his propei'ty for the benefit of creditors, is valid, pJJJJ'^n'f,^" although a preference be given to some creditors above others, Estivick when valid. V. Cuillaud, 5 T. R. 424; and it be made to defeat a creditor of his execution, Pichstoch v. Lyster, 3 M. & S. 371 ; Estwich v. Cail- laud, 5 T. R. 420 ; Wood v. Dixie, 7 Q. B. 892 ; Harland v. Bhiks, 15 Q. B. 713. An assignment of all a trader's effects, bona fide executed to a trustee for the general benefit of all his creditors, is not void either at common law or under the 13 Eliz. c. 5, although it contains a clause empowering a trustee to employ the grantor or any other person or persons in winding up the afiairs of the grantoi-, and in collecting and getting in his estate and cttects thereby assigned, and in carrying on his trade if thought expedient by him ; if it appears from the whole scope of the deed that the carrying on of the trade was merely sub- sidiary to the general purpose of sale and distribution, Janes v. Whit- bread, 11 C. B. 406; Coales v. WilJiams, 7 Exch. 205. But care must be taken not to create a trading partnership between the creditors who sijrn the deed, by enabling tlicin to carry on the debtor's business generally by making profits out of it for the purpose of paying them- selves, for such a deed is void as to the creditors who do not execute it, and the parties executing will bo lisiMe for (h.'bts contracted by the trustees in carrying on the business, Owen v. Body, 5 Ad. & I'^ll. 28 ; IlicUman v. Cox, 18 C. B. 617 ; 27 L J., C. P., Kxch. Cli. 129. In the latter case the judges were equally divided in opinion, see In re Sluiiton Iron Company, 2 Jur., N. S. 130; 25 L. J., Cli. 142. If any trader shall execute any conveyance or assignment by deed Convcynnce of of all his estate and eficcts to a trustee or trustees for the benefit of J'r^j'JJiy J^ot an oo2 564 COMPOSITION. Composition, all the creditors of such trader, the execution of such deed shall not o, T be deemed an act of brinkiiiptcy, unless a petition for adjudication of- ruptcy, unless bankruptcy be filed within three months from the execution thereof, a petition tor provided such deed shall be executed by every such trustee within adjudication * «, •i/>iii be tiled within fifteen days after the execution thereof by the trader, and the execu- three months. j-Jq^j \yy jj^g trader and by every such trustee be attested by an attorney or solicitor, and notice thereof be given within one month after the execution thereof by such trader, in case such trader reside in London or within forty miles thereof, in the London Gazette, and also in two London daily newspapers ; and in case such trader does not reside within forty miles of London then in the London Gazette and in one London daily newspaper, and one provincial newspaper published near to such trader's residence, and such notice shall contain the date and execution of such deed, and the name and place of abode respec- tivelv of every such trustee and attorney or solicitor, 12 & 13 Vict. c. 106, s. 68. Trustees under In consequence of the provisions of the acts 12 & 13 Vict. c. 106, composition pg^ 57 gg gs to bankrupts, and the 1 & 2 Vict. c. 110, s. 59, as to dccuSa insolvent debtors, tmstees are exposed to great hazard during three months after a composition deed has been executed, on account of its liability to be rendered void by those statutes. Where the whole intei'est in a lease is vested in trustees for the benefit of creditors, they may become liable to the rents and covenants in the lease, Hijde v. Wails, 12 M. & W. 254. As to the liability of trustees under composition deeds, see Forsyth, pp. 74 — 84, 3rd ed. Where the assignment is conditional, and the condition is not per- formed by the debtor, the creditors may avoid the deed, Wiyh'sivorth v. White, 1 Stark. 218. If creditors are to execute a deed of assign- ment by a stated time, or the deed to be void if it be not executed within the time, it will be void at law, Lervis v. Jones, 4 B. & C. 511 ; but it is good in equity, if it be afterwards executed by all the creditors, Spuitisivoode v. Stockdale, Cooper, 105. As to the proviso , for making the deed void in case of non-execution by all the creditors, see Forsyth on Deeds of Composition, pp. 61 — 68, 3rd ed. When creditors In equit}^, it is not absolutely necessary that the creditor should will be entitled execute the deed, if he has assented to it, if he has acquiesced in it, or deeds"of com- a^ted under its provisions and complied with its terms, and the other position. side express no dissatisfaction, the settled law of the court is, that he is entitled to its benefits, })er Lord St. Leonard's, Field v. Donoutjh- more, 1 Dru. & W. 227; Biron v. Muunt, 24 Beav. 642. But creditors who have not acceded to a creditor's deed before the debtor has taken the benefit of the Insolvent Debtors' Act, cannot afterwards come in and claim the benefit of it, Birun v. Mount, supra. Where the deed provides for creditors executing it "or otherwise accedin't'^ entered into between any trader liable to the bankrupt laws and his Law Consoli- creditoi-s, and executed by six-sevenths in number and value of JjJJ" ^*='' the creditors whose debts amount to 10/. and upwards, is to be bindinf, 12 & 13 Vict. c. 106, s. 224. Any deed under this section is not bindin'i- on a creditor who has not executed it, unless such deed provides for the distribution of the whole of the trader's estate as in bankruptcy, Tetley v. Taylor, 1 £11. & Bl. 521 ; Drew v. Collins, 6 Exch. 670; Fisher v. Bell, 12 C. B. 363; Bloomer v. Barke, 2 Scott, N. S. 165; see Ex parte Calvert, 4 Jur., N. S. 1258; Tabor V. Edwards, 4 Scott, N. S. 1. And such a deed is invalid if it empowers the trustees to give back to the debtor effects to the value of 20/., although it may be executed by the requisite number of creditors and conveys the debtor's whole estate to the trustees. Cooper V. Thornton, 1 VA\. & Bl. 554; see Larpent v. Bibbij, 5 II. L. Ca. 48. A deed of arrangement which exccj)ts from tiic assignment the 568 Coinposiiion. Observations on Forms following. COMPOSITION. wearing apparel of the debtor and his family is void, 3Iarch v. Warwick, 1 H. & N. 158. A deed of arrangement under that act ought to provide for the distribution of all the debtor's estate amongst all his creditors, and not those only who execute the deed, lb., Irving v. Gray, 3 H. & N. 34; 4 Jur., N. S. 380 ; 27 L. J., Exch. 273. The deed is not to be effectual upon any creditor who has not signed until the expiration of three months from notice of suspension and of the deed, unless the Court of Bankruptcy shall certify that the deed has been signed by such majority of creditors, 12 k, 13 Vict. 0. 106, s. 225. The trustee or inspector (if any) or any two creditors, are to certify as to the proper number of creditors having signed, which certificate is to be filed with the registrar of the Court of Bankruptcy, lb. sect. 226. An account of the debts of the trader and of the names, &c. of his creditors, is to be annexed to the certificate and to be verified by the affidavit of the arranging debtor, lb. sect. 227. The creditors are to have the same rights as in bankruptcy, and not to be prejudiced with respect to their i-ights against third parties, lb. sect. 228. In case of administration of the trader's estate not conformable to the deed of arrangement, any creditor may apply to the Court of Bankruptcy by petition supported by affidavit, lb. sect. 229 ; see Shelford on Bank- ruptcy, pp. 435 — 441, 2nd ed. The forms of certificates of the account and of the aflidavit under the above sections, are given in the orders of the Court of Bankruptcy, see lb. pp. 598—601, 2nd ed. The following precedents of composition deeds were not framed with reference to the provisions of the Bankrupt Law Consolidation Act, and if it be desired to make them available under the 224—227 sections of that act, care must be taken -to adapt and settle them accordino^ly when the compounding debtor is subject to the bankrupt laws. A specimen of the form of such a deed will be found printed in. extenso in tlie case of Irving v. Gray, 3 H. & N. 34; 4 Jur., N. S. 380. The following precedents of deeds of composition may serve in many cases where the insolvent's affairs are not of a complicated nature, and may afford much assistance in preparing others. But deeds of this description frequently require a number of other pro- visions to meet the particular circumstances of the case, and often extend to great length, and ought to be settled by counsel. The Editor presumes that the above remarks will be fully justified by a perusal of Mr. Forsyth's Treatise on Deeds of Composition, and the numerous cases on that subject which have been reported since the publication of the last edition of that work in 1854. Moreover, the insertion of long deeds of this description is incompatible with the limits assigned to this work, and in addition, it seems probable that position COMPOSITION. 569 some important alterations in the law relating to debtors and creditors Composition. will be made by the legislature at an early period. 13. A composition deed, or other instrument of composition between Stamp on a a debtor and his creditors, requires a stamp of 11. lo.v., and if it con- ^°"'J'°*' tains 2160 words or upwards, then the further progressive dutyof lOs. for every entire number of lOSO words over and above the fii-st 1080 ; but although signed by each creditor separately, yet being one whole transaction, requires but one stamp, Bowen v. Ashley, 1 N. R. *27H, See Wills v. Bridge, 4 Exch. 193; Goodsonw Furhes, 6 Taunt. 174. No. CCLXXXVIII. ccLxxxvi>i Aareement between a Debtor and his Creditors where Inspectors ^^"'^ "f ' 1 J T 1 ■> /r- • Inspection. are appointed to superintend the Insolvent s Affairs. Ohs. As to the nature of this deed, see supra, Pref. sect. 1 ; and as to the stamp, see Pref. sect. 13. This Indenture made &c. Between {Debtor) of &c. of the first part A. and B. two of the creditors of said {D.) {Inspectors) of &;c. of the second part and {Creditors) the several other persons whose names and seals are hereunto subscribed and affixed by themselves or their respective attornies being also creditors of the said (D.) of the third part Whereas the said Recital of (Z>.) stands indebted to the several persons parties hereto of the second and third parts or their respective partners or constituents in several sums of money in the schedule hereunder written set opposite to their respective names And whereas the creditors Meeting of of the said (-D.) being satisfied that the stock and eH'ects in trade of the said {D.) are sufficient to pay his debts did resolve and Agreement for agree that it would be most advantageous to the creditors of the onnspcctors!^'' said {D.) that the said {D.) should be permitted to collect and dispose of his estate and effects under the inspection of the said (/.) who were unanimously chosen for that purpose for the term of two years from &c. last Now this Indenture witnesseth Testatum. That in pursuance of the said agreement and in consideration of the covenants hereinafter contained on the part of the said (Z>.) They the said (/.) and the several other peisons parties hereto of the third part Do and each of thoni Doth hereby Letter of [so far as they respectively may and lawfully can] give and grant unto the said {D.) full free and absolute liberty and license to manage collect get in and dispose of all his estate debts and effects or any parts thereof under the inspection and control of 670 COMPOSITION. No. CCLXXXVIIl Deed of Inspection, the said (/.) or either of them and in such manner as they shall judge to be most conducive to the benefit of the said creditors from the day of the date of these presents until the day of if the {D.) shall observe and perform the several covenants and agreements hereinafter contained and on his part to be observed and performed unless these presents shall become void by virtue of the provision in that behalf here- Covenantnotto inafter contained And each and every of them the said several arrest debtor, (.j-editors parties hereto of the second and third parts separately and apart from each other doth hereby for himself his heirs exe- cutors and administrators but not one of them for the acts and deeds of the other or others of them or for the acts and deeds of the heirs executors and administrators partner or partners of the others or other of them doth hereby covenant with the said (Z>.) his heirs executors and administrators that they the said parties hereto of the second and third parts their executors administrators partners or agents or any other person or per- sons for them or by the order authority assent consent or pro- curement of them respectively shall not nor will sue arrest prosecute molest attach detain take in custody or execution imprison or otherwise impede or incumber him the said {D.) or his estate or effects in any manner howsoever he the said (Z>.) observing and keeping the agreements herein contained and which on his part are or ought to be observed and kept And further That if any of them the said parties hereto of the second and third parts respectively or the executors administrators or partners of any of them shall so do contrary to the true intent and meaning of these presents this present letter of licence shall operate to all intents and purposes and may be pleaded in bar to the said respective debts and to any prosecution suit or action that shall or may be brought against the said {D.'s) person goods or chattels as aforesaid within the time aforesaid as effectually as if he had a general release under the hands and seals of such creditors respectively for that purpose (a) And the said {D.) doth hereby in further pursuance of the said agree- Debtor cove- nants. Effect of licence by cre- ditors. (a) A debtor conveyed his life interest in certain property in trust for cre- ditors parties to the deed, and the creditors, in consideration thereof, granted to the debtor license to reside and attend to his affairs in any place he may think proper, without any suit or molestation in his person, or in his goods, chat- tels, and effects by any such creditors ; and that in case of any suit or moles- tation by any such creditors, contrary to the true intent and meaning of such licence, the debtor should be wholly released and acquitted of the debt, COMPOSITION. 571 ment and in consideration of the said license hereinbefore given No. unto him as aforesaid for himself his heirs executors and admi- -^-^-vn nistrators covenant with the said (/.) their executors and ad- inspection. ministrators and also with each of the several parties hereto of the third part in manner following (that is to say) That the said (D.) will as soon as may be draw out and state a true and exact account in writing of all his estate and effects as well real as personal and of the several charges outgoings and incum- brances now affecting the same and bring the said estate to a To state his balance and will thereupon deliver such account after being signed ''^'-counts. by him unto the said (/.) Aiid also will if thereunto required To verify them by them the said ( /.) or either of them verify the truth of such °" *"*'''" accounts by solemn statutory declarations (a) or in such other manner as to the said (/.) shall seem expedient And further that To obey in- he the said (Z),) will at all times observe perform and execute the ^"""'=^>°"s- orders instructions and advice of them the said (/.) and each of them touching the sale disposal and management of the estate and effects of the said (Z>.) And also will use his best endea- To use his best vours about the management and collecting receiving settling 1" J'Y:?"'^u;'" and converting into money all the estate and effects of him the estate, said (D.) And also will when and so often as there shall be To deposit monies in hand arising from the said estate and effects pay the b^nkers^^"^ same into the hands of Messrs. or such other banker and bankers as the said (/.) shall direct in the names and to the account of the said (7.) And further that he the said D. will Not to dispose not at any time during the said term [unless he shall before "''"s estate •^ _ " _ >- without con- that time have paid unto the said creditors the whole of his sent. debts] convey alienate dispose of pledge or incumber any of his real or personal estate A7id also will not by himself or with Nor undertake any other person become engaged in or undertake any new trade ""^ °''*'^'' ^'^^^^' and the deed might be pleaded in bar. It was held, that this ainoiintod only to a licence by the creditor to the debtor to live unmolested, and did not operate as a release of the debt or a discharge of the debtor's estate ; and that neither a suit by the creditors against the trustees and the debtor to enforce the trusts of the deed, nor an administration suit by the creditor against the estate of the delitor, after bis decease, for payment of so much of the debt as the trust property was insufficient to pay, was barred by the trust deed, or amounted to an acquittance of the debt. It was held also, that the existence of the trust deed, and the covenants and licence therein eunlaincd, prevented the operation of tiie Statute of Limitations diiring tiie life of the debtor in respect of the debts for the payment of which the trust was created, O'Brien v. Osborne, 10 Hare, 92; 16 Jur. 9G0. (a) See u & G Will. 4, c. 02, s. 18, ante, p. 4'2. 572 COMPOSITION. No. CCLXXXVIIl Deed of Inspection. Nor give pre- ference to any creditors. Nor release debts, &c. Keep books of account. Preserve let- ters, &c. Cash to be drawn out, &c. on draft of inspectors. or commercial transaction unless with the consent of the said (7.) And will not do or suffer to be done any act deed matter or thing whatsoever whereby any of the creditors of him the said {D.) shall or may obtain security {a) or securities for his or their debt or debts or any preference or priority of payment thereof or of any part thereof contrary to the true intent and meaning- of these presents And will not release any debt or debts nor bring any action or suit for recovering any such debt or debts without the license and consent of the said (/.) or one of them And further that the said {D.) will keep proper books of account and enter or cause to be entered therein a fair just and regular account of all receipts and payments and of all such other trans- actions matters or things as shall be requisite in order to show the true state and condition of the estate and effects of him the said {D.) And also shall and will preserve all letters received from and take copies of all letters written or sent by him to all and every his correspondents or other person or persons whomsoever con- cerning the trade and business of the said {D.) or any matter connected therewith And also shall and will permit them the said (/.) or either of them to examine and inspect the same accounts papers letters and writings relating to the estate and effects of the said (Z).) when and as often as they or he shall think proper And it is hereby agreed by and between all the said parties hereto that all the monies bills notes or securities for money arising by or from the estate and effects of the said (Z).) and from the gains and profits of his said trade [and which shall be paid into such banking house as aforesaid] shall there remain and not be drawn out except for the purposes hereinafter mentioned unless the said (/•) or the inspector or inspectors for the time beino- shall in the mean time think it will be for the benefit of the estate of the said creditors to lay out and invest the same in the purchase of government funds or exchequer bills [and which they or he is empowered to do from time to time when and so often as they or he shall think proper] and that all and every sum or sums to be taken out of the said banking house for the time being for any purpose whatsoever shall be by draft to be signed by one at least of the said (/.) And it {a) The courts will set aside all securities whereby one creditor, under contracts of this kind, endeavours to obtain an undue advantage over the rest, Leicester v. Bose, 4 East, 271, recognized in Howdenw. Haujh, 3 P. & D. 661 5 see further, ante, Pref. sect. 6, p. 562. COMPOSITION. 573 is hereby further afrreed bv and between all the said parties No- . CCLXWVIII to these presents that it shall be lawful to and for the said ' \ . I , . . Deed of (/.) or the inspectors or inspector for the time being out of the inspection. monies which shall be paid to their account as aforesaid to inspectors to pay and discharoe all the debts due and owing from the said distribute ^ '-' , 1 • 1 J i. monies. (Z>.) unto any person or persons whomsoever which do not / o-j bt exceed the sum of £ respectively when the same shall under £" become due And shall in the first place pay and satisfy all the costs charges and expenses attending the preparing en- grossing and executing these presents and in the next place pay and satisfy all sums of money which in the judgment of the said (/.) or either of them shall be necessary for carrying on the said business of the said {D.) as aforesaid And in the next Allowance for place shall pay and allow unto the said (D.) such annual sum ^f debto^r. of money not exceeding £ for his maintenance and sup- port as the said (/.) or either of them or the inspectors or inspector for the time being shall think proper A7id subject to Among the rest the payments aforesaid shall and may from time to time when "ateably. and so often as there shall be in hand money sufficient to answer and pay shillings in the pound upon or in respect of the several debts now due or owing from the said (D.) to the several persons parties hereto of the second and third parts pay and distribute all such monies unto and amongst the several creditors rateably and proportionably according to the amount of their respective debts And after payment of all and singular Surplus to the aforesaid debts and sums of money and of all the costs charges and expenses occasioned by or attending the execution of the trusts declared by these presents shall pay over the sur- plus of the said trust monies unto the said (D.) his executors or administrators for his and their absolute use or as he or they shall direct or appoint And it is hereby further mutually de- Creditors to clared and agreed by and between all the said parties hereto and ^Xbwn each and every of them the said creditors parties hereto of the second and third parts sej)arately &c. [the same as the covenant, ante, p. 570] further covenant with the said (Z>.) his executors and administrators that when and so soon as all the present estate and effects of the said (Z>.) shall have been distributed among the said parties hereto of the second and third parts or otherwise applied under or by virtue of the provisions herein contained and the said (Z>.) shall have truly observed and performed all and every the covenants and agreements herein contained on his part to be performed and observed (and which the inspectors for the time being an; hereby re- 574 COMPOSITION. No. quired to certify by a memorandum to be hereon indorsed) and tliat in case all the creditors parties hereto of the second and Inspection, third parts or their executors or administrators shall not before ~~~ the day of have received the whole of their respective debts now due from the said {D.) to the said creditors re- spectively and if the said {D.) shall on the said day well and sufficiently convey assign and deliver upon oath if required unto such person or persons as shall be named by the majority in number and value of the creditors parties hereto of the second and third parts at a meeting convened by circulars sent by any creditor of the said (Z).) by the post or otherwise ten days at least before the time appointed for such meeting all such parts of his present estate and effects as shall then remain not divided or otherwise applied according to the true intent and meaning of these presents for the benefit of all the said present creditors of the said (Z).) rateably and render a full account of all his proceedings and transactions relating thereto Then and in such case the aforesaid creditors parties hereto of the second and third parts or their respective partners executors or administra- tors will upon such assignment and delivering up respectively duly execute to the said {D.) a general and effectual release thereby releasing and for ever discharging the said (Z>.) his heirs executors and administrators from all the debts and sums then due and owing from the said (-D.) to such creditors respec- tively and from all accounts actions suits claims and demands at law or in equity for recovery of the same debts respec- Proviso that if tively Provided always nevertheless and it is hereby expressly bf debtor,"&c!^ agreed to be the true intent and meaning of all the said parties this agreement hereto that if the said {D.) shall make default in performing all or any of the said covenants clauses stipulations and agree- ments hereinbefore contained and covenanted to be performed on his part or if all the creditors of the said (X>.) whose debts amount to the sum of £ [except only such creditors as are possessed of any other securities for their debts and choose to rely thereon] shall not by themselves or their respective attornies or agents thereunto legally authorized duly execute these pre- sents or a duplicate thereof or otherwise accede or agree to the terms hereof within next after the date hereof Then and in either of the said cases this present indenture and the license and liberty hereby given and every other article clause matter or thing herein contained so far as the same tend to restrain the said creditors parties hereto of the second and third parts from suing for or recovering their respective debts within the to be void. COMPOSITION. 575 time aforesaid shall cease determine and be utterly void Pro- (.(^lxxxviii vided always and it is hereby further agreed and declared by and ^^^^' ^^ between the said parties to these presents that in case the said inspection. (/.) or either of them or any inspector to be appointed as herein- p^^^^ ^^ ^p, after is mentioned shall die or shall refuse or dechne or become point new 1 1 • 1 1 1 1 i J inspectors, incapable to act in the matters and thmgs hereby delegated or entrusted to him or them as aforesaid Then and in every such case the major part in number and value of the creditors of the said (D.) present at a meeting convened by circulars sent by any creditor of the said (Z>.) to the other creditors by the post or otherwise ten days at least before the time appointed for such meeting may nominate and choose such other person or persons as they shall think fit to be an inspector or inspectors in the place or stead of such of the said inspector or inspectors who shall so die or refuse or decline or become incapable to act as aforesaid and every such person so to be chosen as aforesaid shall have the like powers and authorities in all things as the person or persons in whose room or place they or he shall have been chosen had or might exercise under or by virtue of these presents if living and continuing to act and as if the name or names of such new inspectors or inspector had been inserted in these presents instead of the names or name of the said (/.) or one of them And it is hereby further agreed and declared by and be- Imlemnity to tween all the said parties hereto that each of them the said (/.) and ">''P^'^'°'^^- all and every other the said inspector and inspectors for the time being shall be indemnified protected and saved harmless by or out of the estate and effects of the said {D.) or otherwise by his said creditors according and in proportion to the amount of their said respective debts against or in respect of all transac- tions and personal engagements matters and things whatsoever which they or either or any of them shall lawfully do or cause to be done or enter into or order or direct in or concerning the business affairs estate or effects of the said (Z).) by virtue of or in pursuance of these presents and that they the said parties hereto of the third part and every of them their and his heirs executors administrators ])rincipals and assigns shall and will from time to time and at all times allow and confirm the same in all respects And further That they the said (/.) and other the inspector or Expenses to inspectors for the time being shall be reimbursed and repaid out i',',"^j'^."^^r8. of and from the estate and effects of the said (Z>.) or otherwise by the said creditors of the said {]).) according and in |)n)por- tion to the amount of their respective debts all such costs 576 COMPOSITION. No. CCLXXXVIII Deed of Inspection. charges damages and reasonable expenses whatsoever as they or any of them shall respectively pay sustain or be put unto in about or concerning the matters and things aforesaid or in any- wise relating thereto {a) In icitness &c. No. CCLXXXIX. Agreement for a Composition. No. CCLXXXIX. Memorandum of an Agreement at a Meeting of Creditors to accept a Composition. Ohs. As this is mostly an informal instrument not under seal, it is prudent to stipulate that a more formal deed shall be executed, see Pref. s. 2. Memorandum. At a meeting of the creditors of A. B. of &c. held at on the day of It is agreed on as follows (that is to say) That >ve the creditors whose names are hereunder written have this day severally and respectively agreed for ourselves and for our several and respective executors admi- nistrators partners and assigns with the said A. B. his executors and administrators to accept the sum of shillings in the pound in full satisfaction and discharge of our respective debts within the space of calendar months from the date hereof to be secured by notes drawn upon and accepted by C. D. of &c. as the surety of the said A. B. And we the said creditors do hereby further agree that each of us the said creditors will execute a deed of composition to be forthwith duly prepared within days from the date hereof and will use our best endeavours to induce all the other creditors of the said A. B. to do the same. Witness our hands this day of A. B. CD. E. F. &c. No. CCXC. Deed of. No. CCXC. Deed of Composition. Ohs. As to the effect of such a deed, see Pref. s. 6 ; and as to the stamp, see s. 13. This Indenture made &c. Between (Debtor) of &c. of the first part (Surety) of &c. of the second part and (Creditors) the (a) See Covenant to indemnify Trustees, post, p. 596, n. COMPOSITION. 577 several persons whose names and seals are hereunto subscribed No. CCXC. and affixed by themselves or their respective attornies being ^''^'^ °-^- creditors of the said (D.) of the third part Whei-eas the said (Z).) is indebted to the several parties hereto of the third part in the sums of money respectively set opposite to their respective names at the foot of these presents and has as^reed to pay to the said several persons parties hereto of the third part within the space of days from the date of these presents the sum of shillings in the pound in full of their respective debts And the said (-S.) having agreed to become surety with the said (Z>.) for the punctual payment of the said sum of shillings in the pound within the time aforesaid Thei/ the said several creditors parties hereto have consented and agreed to accept the same in full of their respective debts and to execute and grant unto the said (Z>.) such letter of licence as hereinafter is mentioned Noio this Indenture witnessetli That Testatum, in pursuance of the said agreement on the part of the said {D.) and \S.) and in consideration of the covenants and agreements on the part of the said persons parties hereto of the third part hereinafter contained each of them the said (D.) and {S.) Doth Debtor and 1 T n ^ ■ ipi'i- ii--ii surety cove- hereby tor hmiselt his heirs executors and administrators cove- nant to pay. nant with the several persons parties hereto of the third part and each of them their and each of their executors administrators and assigns that they the said (/>.) and {S.) or one of them their or one of their heirs executors or administrators will pay unto the said several parties hereto of the third part their executors administrators or assigns on or before the day of the sum of shillino;s in the pound upon the amount of their To pny respective debts set opposite to their respective names at the toot pound. of these presents and without any deduction or abatement what- soever Provided alu-ays and it is hereby agreed and declared Proviso as to between and by the said parties to these presents That if all the concurring, &c. creditors of him the said {D.) whose debts respectively anKumt to £ or upwards shall not by themselves or their respective attornies duly authorized and appointed for that purpose duly execute these presents within the s])ace of days to be computed from the date hereof or if the said (Z).) shall be ad- judicated a bankrupt within months from the date hereof Then and in either of the said cases this present indenture and every covenant clause and agreement herein contained shall cease determine and be utterly void And this Indenture also Creditors ^ive witnesseth That in consideration of the covenants and agree- ^' ^"^^ »'-<-'>ce, VOL. I. P P 578 •COMPOSITION. No. CCXC. ments hereinbefore respectively made and entered into by the ^'^^^ °f- said {D.) and {S.) for the discharge of the said several debts in manner hereinbefore provided for They the said several credi- tors parties hereto by these presents Do and every of them doth give &c. as far as they respectively and lawfully may or can unto the said {D.) full &:c. [Letter of Licence, see Precedent, No. CCXCIL, p. 579] And the several creditors parties hereto do hereby covenant not to sue &:c. [see y)p. 570, 580] And fur- ther that if the said (D.) and (*S.) Iheir executors administrators or assigns shall duly («) observe keep and perform the several covenants and agreements hereinbefore on their parts respec- and covenant to tively Contained Then they the said several creditors of the said fii^generaf.^^^ (-Z).) parties hereto will at the costs and charges of the said (D.) his executors or administrators execute and give to him or them a general release and discharge for the said several and respective debts due and owing from the said (-D.) And{b) dehver up all bonds bills notes and other securities for the same whether given by him or any surety or sureties for him And moreover that if the said several creditors or any of them or any of their execu- tors administrators or assigns shall act contrary to the true intent and meaning of these presents Then that this present letter of licence shall and may be pleaded in bar to such debt or debts and sums of money And to any prosecution suit or other action that shall be brought against the said {D.) his executors administrators or assigns on account thereof as effectually as if the said (D.) had a general release under the hands and seals of such creditors respectively for that purpose /« witness &c. Stipulation as to securities. (a) As to tlie strict performance of the covenants by a debtor, see Pref. s. 4, p. 561. (b) As to the necessity of this stipulation, see Pref. s. 5. If the contrary be intended, it must be stipulated in express terms, and then say, " Provided always and it is hereby declared and agreed by and between the said parties to these presents tliat nothing herein contained shall extend to or be con- strued to extend to prevent the said several creditors their executors &c. [or ' the said A. B. or C. D./ as the case may &e] from commencing any action or actions suit or suits against him the said {D.) for recovering payment of the money which shall or may become due or payable to them the said several creditors respectively upon or by virtue of any notes bills or other securities which they may now hold against the estate of the said (-D.)" -♦ — COMPOSITION. 579 No. CCXCI. Another (^slwrtform). To all kc. We whose names and seals are hereunto sub- - scribed and set creditors of {Debtors) of &c. send greeting Whereas the said (jD.) are and do stand jointly indebted unto us the said creditors in divers sums of money which they are willinsi' to pay and satisfy as far as they are able Now know ye That we the said creditors who have hereto subscribed our names and affixed our seals finding that the said (D.) are by losses and otherwise disabled to pay our full debts do severally and respec- tively agree and bind ourselves our heirs executors and adminis- trators unto the said (D.) by these presents to accept of them the said (Z>.) their heirs executors and administrators after the rate of shillings in the pound in full satisfaction of all debts and sums of money which they jointly owe to us and every of us respectively the same to be paid in four equal pay- ments on the days following (that is to say) on the day of the day of the day of and the day of so as the said (i>.) for the more sure and better payment of the said several sums of money in satisfaction of our debts as aforesaid their executors or administrators do before the day of become jointly and severally bound with sufficient sureties unto us and every of us respec- tively by writing or obligation in due form of law to be made sealed and delivered to us each and every of us and to each and every of our use Provided alwar/s that neither these presents nor anything herein contained shall bind us or any or either of us who have hereunto subscribed our names and put our seals unless all and every of the creditors aforesaid shall have sealed and executed the same on or before the day of next ensuing In witness &c. No. CCXCI. Deed of. {Short.) No. CCXCII. Letter of Licence from Creditors to a Debtor. Obs. As to the effect of such a deed, see Prcf. sect. 7 ; and as to the stamp, see sect. 13. To all to whom these Presents shall come We whose respec- tive names and seals are hereunto set and affixed creditors of p p2 No. CCXCII. Letter .) should so long live And further that we the said (C.) shall not nor will sue arrest attach or prosecute the said {D.) his executors or administrators for or on account of our or any or either of our debts or demands whatsoever And moreover that if any such action arrest attachment or prosecution aforesaid be prosecuted or commenced against the said {D.) either in his person goods or chattels within the said term or period by us or any of us or by any other person or persons by or through our or either of our procurement or consent contrary to the true intent and meaning of these presents Then the said (Z).) by virtue hereof shall be henceforth and forever acquitted exonerated and discharged of and from all and every the debts claims and demands whatsoever of such of us the said creditors our respective heirs executors administrators partners or assigns by whom or by whose order means or procurement he the said (Z>.) or his goods chattels monies estates or effects shall be so arrested imprisoned attached or damnified and this present letter of hcence in any or either of the said cases shall be and operate as a release and may be pleaded in bar to the same debts COMPOSITION. 681 claims and demands and to every such action attachment arrest No. ccxcil. prosecution or process as aforesaid In witness kc. ^julnc'^ No. CCXCIII. Release from Creditors to a Debtor under a Comj>osition. Release. Ohs. As to stamp, see Pref. sect. 13. To all &c. [see last precedent^ We &c. creditors of {Debtor) Recital, of &c. send greeting Whereas the said (-D.) being unable to pay and satisfy the whole of our respective demands hath pro- posed to pay to us his several creditors the sura of shillings in the pound upon the amount of our respective debts being the sums set opposite to our respective names at the foot hereof which we do hereby declare to be the full amount of our respec- tive demands against him the said {D.) his estate and effects And we the said creditors have consented to accept such com- position in full discharge of our respective demands and to exe- cute such release as is hereinafter mentioned and contained And whereas we the said several persons whose names are here- under written have respectively received the several sums of money set opposite to our respective signatures Now therefore Release. know ye That for the consideration aforesaid we the said several creditors wdio have hereunto set our hands and seals Do and each of us doth by these presents remise release and for ever discharge the said (Z>.) his heirs executors and administrators and his and their lands goods and chattels of and from all debts claims and demands whatsoever as against him the said (Z>.) which we or any of us ever had or could claim or de- mand and also of and from all and singular the covenants con- ditions and agreements and also all actions and suits and causes of action and suit which we or any of us now have or hath or ever had or can or may have against the said {D.) his executors administrators or assigns in respect of our said debts or any other matter cause or thing whatsoever concerning the same up to the day of the date of these presents In witness &c. Debt Signature Seal Composition 682 COMPOSITION. No. CCXCIV. Release. Proviso that creditors may sue the part- ners. No. CCXCIV. Indenture of Release from Two Creditors to One of Two Partners. Ohs. As to the effect of a release to one partner, see Pref. sect. 8, p. 563. This Indenture made &c. Between {releasors) of &:c. of the one part and {releasee) of &c. of the other part Wliereas the said {re- leasee) carried on the trade or business of a merchant in partnership with I. F. of &c. under the firm of F. and E. And whereas there were various transactions between the said {releasors) and the said F. and E. and the said F. and E. having become embarrassed in their affairs stopped payment and upon the balance of accounts between the said F. and E. and the said {releasors) the said F. and E. stood indebted unto the said {releasors) in a considerable sum of money And whereas the said E. lately offered and pro- posed to the said {releasors) to pay to them the sum of £ and to give promissory notes for the sum of £ if the said {releasors) would give and execute unto the said E. a release or discharge for or in respect of the aforesaid debt or demand on the said F. and E. subject to the provisoes and restrictions hereinafter contained Now this Indenture witnesseth That in consideration of the sum of £ to the said {releasors) in &c. paid by the said {releasee) at &c. the receipt &c. And also in consideration of promissory notes given and made payable to the said {releasors) their executors administrators or assigns the receipt of which said notes (making together with the sum of so paid as aforesaid the sum of ) they the said {releasors) do hereby respectively acknowledge And pursuant to and in execution of the said agreement They the said {releasors) Bo and each of them Both hereby remise &c. [see last pre- cedenf] Provided nevertheless and it is hereby agreed and de- clared by and between the pai'ties to these presents that any matter or thing herein contained shall not release or be con- strued to release or in any manner to prejudice or affect any claim or demand which the said {releasors) or either of them have or hath or ever had or which they or either of them their or either of their executors administrators or assigns hereafter shall can or may have upon or against the said F. or upon or against the joint estate or effects of the said F. and E. in re- spect of the debts so due from the said F. and E. or any part COMPOSITION. 583 of such joint estate or effects whether the same shall be m No. ccxciv. the hands of or recoverable from F. and E. or either of them Release. or from any other person or persons whomsoever And that it shall and may be lawful for the said {releasdis) their executors administrators and assigns from time to time when and as they shall be thereto advised to commence and prosecute any actions suits or other proceeding either at law or in equity against the said E. jointly with the said F. or against the said E. his execu- tors administrators or assigns separately for the purpose of re- covering or compelling or of enabling the said {releasors) their executors administrators or assigns to recover or compel payment or satisfaction of the debt so due and owing: from the said F. and E. to the said {releasors) as aforesaid either by or out of the joint estate of the said F. and E. or by or from the said F. his exe- cutors administrators or assigns or his separate estate and effects Provided always and it is hereby further agreed and declared by Proviso in case and between the parties to these presents that in case default "^ il'^f-'"!' "» 1 ,, , I'll payment. shall be made m the due payment of any two of the before men- tioned promissory notes successively to fall due in such manner that any two of the promissory notes shall be due and unpaid at the same time Then and in such case these presents and every matter or thing herein contained shall from and immediately after such default be absolutely void and of no effect And the said sum of £ and all and every other sum or sums of money which may at any time be paid in discharge of any of the said promissory notes shall be carried to the account of the said F. and E. with the said {releasors) and all the debts claims and de- mands of the said (releasors) their executors administrators and assigns by reason or in respect of the default hereinbefore men- tioned to be due to them from the said F, and E. either upon or against F. and E. jointly or separately their or either of their executors or administrators shall from and immediately after such default be in full force and virtue as to so much of the debts so due to the said {releasors) as aforesaid as shall remain unpaid in like manner to all intents and purposes as if these presents had not been made anything herein contained to the contrary thereof in anywise notwithstanding la witness 8cc. («). (a) N.B. This deed is to be delivered as an escrow, [see next precedent,} otherwise it would be advisable that the releasors should only covenant not to sue E. 584 COMPOSITION. No. CCXCV. Memorandum indorsed on Release. No. CCXCV. Memorandum indorsed on the above Deed of Release. This deed is deposited by the within named {releasors) and by G. B. of &c. on the part of the within named {releasee) with E. L. of &c. who is to dehver it to {releasee) his executors or administrators or to his or their order after due payment of the within mentioned promissory notes according to the tenor and meaning of the within written indenture of release but in case of any default in payment of the promissory notes or any of them according to the tenor and meaning of the within written indenture E. L. is to deliver up the indenture to the said {re- leasors) their executors or administrators to be cancelled In the mean time the indenture is to remain in the hands of the said E. L. for the purposes aforesaid. See Johnson v. Baker, 4 B. & Aid. 440 ; Christie v. Winnington, 8 Exch. 290. As to delivering a deed as an escrow, see post, Deeds. CONVEYANCES IN TRUST FOR CREDITORS. 1. Validity of Deed or otherwise. 2. Power of Sale to Survivors. 3. Power to Sell or Mortgage. 4. Receipts of Trustees valid Dis- charges. 5. Liability of Purchaser. Validity of deed or otherwise. Power of sale to survivors. Sect. 1 . A conveyance for the payment of debts generally, to which no creditor is a party, and in which no particular debts are expressed, has been held to be a fraudulent conveyance within the 27 Eliz. c. 4, as against a purchaser for valuable consideration, Leech v. Leech, 1 Chan. Ca. 249; Sugd. V. & P. 929, 11th ed. ; but where a debtor between judgment and execution made an assignment of all his effects to trustees for the benefit of all his creditors, this was held not to be fraudulent and void under the 13 Eliz. c. 5, although not signed by any of the creditors, see Pichstock v. Lyster,'^ M. & S. 371. 2. A power of sale given to two or more trustees and their heirs will not survive, unless it be expressly so stipulated by the deed, Townsend v. Wilson, 3 Madd. 261 ; S. C. 1 B. k A. 608 ; see Hall V. Demes, Jac. R. 189 ; Ju7ies v. Price, 11 Sim. 557 ; Warhurton V. Sandys, 14 Sim. 622. Any question on the survivorship of a power is obviated in all instruments correctly framed, by giving the COMPOSITION. 585 power to the trustees and the survivors and survivor of them, &c., or Conveymiccs in to the trustees or trustee for the time beintr, acting in the execution of ^'^"1'/'"^ = ' ^ Creditors. the trusts. 3. As it is doubtful whether, under a trust to raise money by sale Power to sell or mortgage, the trustees having mortgaged can afterwards sell to ^^ mortgage, pay off that mortgage, Palk v. Lord Clinton, 12 Ves. 48, it may be proper to provide for this event in the deed containing such a trust. 4. If the names only of the trustees be inserted in the usual clause, Receipts of that the receipts of trustees shall be valid discharges, it is necessary ^'."•'^'ces valid for all the trustees to join in the discharge : where a trustee has only released to his co-trustee, and not absolutely renounced his trust, it has been held, that his signature is necessary to make a valid dis- charge, Creiv V. Dlcken, 4 Ves. 97. Any difficulty on this account is usually obviated by declaring that the receipts " of the trustees or trustee for the time being, acting in the execution of the trusts hereby created," shall be sufficient discharges, Sugd. V. & P. 849, 11th ed. 5. Where an estate is to be sold for the payment of debts generally, Liability of the purchaser is not bound to see to the application of the purchase- P""^*^ ^^^^^' money ; but where the debts are scheduled, he is bound so to do, unless the deed, from the terms of it, exonerates him, Sugd. V. & P. pp. 834—836, 11th ed. No. CCXCVI. No. ccxcvi. Conveyance in Conveyance of Freeholds in Trust for Creditors. ( General Trust for Precedent.) Creditors. This Indenture made the &:c. Between (Debtor) of Sec. of the one part (Trustees) of &:c. creditors of the said (D.) and trustees named and appointed on behalf of themselves and the other creditors of the said (J).) for the purposes hereinafter men- tioned of the other part Whereas [the necessary recitals~\ And whereas the said (D.) is indebted to various persons in divei-s sums of money on or other securities which he is desirous of discharging and hath agreed for the more speedy payment thereof to convey the several hereditaments hereinafter described to the said (T.) in trust to sell Now this Indenture witnessvth Testatum. That in pursuance of the said agreement He the said (D.) Doth by these presents grant and convey unto the said ( 7' ) and tlusir heirs All those messuages &c. together with all houses &c. And all the estate &c. of him the said (D.) in U) kc. To hare Habendum. and to hold the said messuages lands hereditaments ami all and 686 COMPOSITION. No. CCXCVI. Conveyance in Trust for Creditors. Trust to sell. To receive rents until sale, Contracts en- tered into by trustees to be valid. singular other the premises hereby granted unto and to the use of the said {T.) their heirs and assigns for ever upon the trusts and to and for the intents and purposes and under and subject to the powers provisoes declarations and agreements hereinafter declared concerning the same (that is to say) Upon trust that they the said {T.) or the survivor of them or the heirs or assigns of such survivor shall without any further consent of the said {D.) his heirs executors or administrators imme- diately or at any time or times after the sealing and delivery of these presents make sale of all the said messuages and tenements lands hereditaments and premises hereby granted or intended so to be or any of them or any part or parts thereof as they or he shall think fit either together and in one lot or in separate lots and either by public sale or private contract or partly by public sale and partly by private contract for such price or prices sum or sums of money as the said ( T.) or the survivor of them his heirs or assigns shall think fit with full power upon any such sale to make any stipulations as to title or evidence of title which they or he shall think fit and with full power to buy in or rescind any contract for sale of all or any part of the said hereditaments and premises which shall have been put up to sale by public auction and to resell or offer them again to sale in all or any of the modes aforesaid without being hable in any of the said cases to answer for any loss or diminution in price which may happen thereby {a) And also with like power and authority to convey and assure the said hereditaments to any ])er- son or persons who shall become the purchaser or purchasers of the same or any part thereof in such manner and form as he or they shall direct or appoint And in the mean time and until such sale or other disposition shall be made and as to such parts as re- main unsold or undisposed of Upon trust that they the said ( T.) or the survivor &c. shall enter into and upon all and singular the same hereditaments and premises and receive and take the rents issues and profits thereof and also all arrears of rent and all and every sum and sums of money which are now due to the said(i).) from all and every the tenant or tenants of the said(Z>.) Ajid it is hereby agreed and declared by and between the parties hereto that all contracts agreements sales dispositions and con- veyances acts deeds matters and things whatsoever which shall or may be entered into made done or executed by the said {T.) or the survivor &c. shall be as valid as if he the said {D.) had (a) See Taylor v. Tabrum, 6 Sim. 281. COMPOSITION. 587 joined or concurred in the same And it is hereby further No. CCXCVI. agreed and declared that the receipt and receipts in writing of Conreyance in the said ( T.) or the survivor &.c. or of the trustees or trustee for Creditors. the time being acting in the execution of the trusts of these rp , ] o ^ Trustees' re- presents for any sum or sums of money payable to them or him ceipts to be under the same trusts shall be sufficient discharge and dis- char<^es'.*" charges to any purchaser or purchasers and other persons paying the same for so much money as shall be therein ex- pressed or acknowledged to be received And that the person or persons to whom the same shall be given his her or their heirs executors administrators and assigns shall not afterwards be answerable or accountable for any loss misapplication or nonapplication thereof or of any part thereof A7ul it is hereby Declaration of further declared and agreed that the said (T.) and the survivor &c. shall stand possessed of and be interested in all and every the sum and sums of money which shall or may arise or come to their hands by any sale or disposition of the said premises or any part thereof and in respect of the rents issues or other proceeds thereof Upon the several trusts and to and for the several ends intents and purposes and under and subject to the several provisoes declarations and agreements which are de- clared contained and expressed of or concerning the same in or by a certain indenture already engrossed bearing even date with these presents and made between the said (J).) of the first part the said {T.) of the second part and the several other persons therein named as creditors of the said (D.) of the third part And the said (D.) for himself his heirs executors and adminis- trators doth hereby covenant with the said (jT.) their heirs and assigns in manner following &c. [See covenant for title to freeholds, Purchase Deeds. Clauses for appointment of new trustees, and for their indemnity and reimbursement.'\ No. CCXCVII. No. cc.Ycvir. A Trust Deed for the Benefit of Creditors, to accompany a Deed xruai need. of Conveyance or Assignment. {General Precedent.) This Indenture made &c. Between {Debtors) of &c. bankers and copartners of the first part {Trustees) of &c. of the second part and the several persons whose names and seals are hereunto set and affixed of the third ])urt Whereas the said (Z>.) lately carried on the business of bankers as aforesaid under the firm of &c. And, whereas the said {D.) became and now are indebted 588 COMPOSITION. No. CCXCVII. Trust Deed. Recital of busi- ness carried on in partnership. Of carrying on business. Of conveyance to trustees. Testatum. Declaration of trusts. on their said partnership account unto the said several persons parties to these presents of the third part in several suras of money or engagements to replace bank stock or other property And the said (Z).) are also severally indebted on their own private and separate account unto some of the said several ]5ersons who are or are intended to be parties to these presents And the said (Z).) being unable at present to pay and discharge the full amount of the debts owing by them as aforesaid it was lately proposed and agreed by and between all the parties hereto that the said (D.) should convey and assign all the estate and effects belonging to them on account of their said partnership and also that each of them should convey assign and transfer all the estate and effects belonging to him as his separate property to the said iT.) their heirs executors administrators or assigns In trust and for the purposes hereinafter mentioned And ivhereas by indenture bearing even date with these presents and made &c. the freehold copyhold leasehold and personal estate of the said {D.) have been conveyed assigned and covenanted to be surrendered by them respectively unto and to the use of the said (T.) their heirs executors administrators and assigns In trust nevertheless to make sale of the same under the powers in the now reciting indenture contained and to pay apply and dispose of the produce of such sale upon such trusts and to and for such ends intents and purposes (fee. as were declared of and concerning the same in and by an indenture therein mentioned to be already engrossed bearing even date with and made be- tween the same persons as are parties thereto Now this Inden- ture (being the indenture so referred to as aforesaid) witnesseth That in pursuance of the said agreement and for carrying the same into effect it is hereby agreed and declared between and by the parties to these presents that the said (T.) and the survivors or survivor of them and the executors admi- nistrators and assigns of such survivor shall stand and be possessed of and interested in all and singular the monies to arise by such sale of the said freehold copyhold leasehold and personal estate and effects of the said (D.) conveyed and assigned to them the said (T.) their heirs &c. as herein- before mentioned and also of and in the rents of the said free- hold copyhold and leasehold estate in the mean time until such sale thereof Upon the trusts and for the intents and purposes hereinafter declared of and concerning the same (that is to say) Upon trust that they the said (T.) or the survivors or survivor of them or the executors administrators or assigns of such sur- COMPOSITION. 589 vivor do and shall in the first place deduct retain and reimburse No. to himself and themselves all usual outgoings tor rent taxes re- pairs salaries of clerks and agents and all such other costs charges and expenses as he and they respectively shall or may "lop^y^ot. Y ^ . . r J ^ taxes, salaries, pay incur or be put unto in the execution of the trusts by these &c. presents respectively and by the said indenture reposed in him and them And in the next place do and shall apply the clear To apply sepa- residue of the produce of the separate estate of each of them the tHrpaymemof said (D.) respectively or a competent part thereof in payment of separate debts, the debts owing by him separately to such of the creditors as have executed or shall execute these presents or their re- spective executors administrators or assigns and in proportion to the amount of the debts owing them respectively without any priority or preference until each of the said creditors re- spectively or his or her executors &c. shall have received the full amount of the debts owing to him her or them and do and shall apply the residue or surplus (if any) of the produce of the separate estate of each of them the said {D.) in aid of the part- nership fund for the payment of the partnership debts until each Pny partner- of the said partnership creditors who have executed or shall '^'^'P ''^'^' execute these presents his or her executors &c. shall have re- ceived the full amount of the debts owing to him her or them respectively and do and shall apply the surplus (if any) of the share of each of them in the clear residue of the partnersiiip effects in or towards such of his separate debts for which pro- vision is hereby made as shall not have been discharged out of the clear residue of his separate estate in manner and pursuant to the directions hereinbefore contained in that behalf And and surplus (if lastly do and shall pay to each of them the said (Z>.) his execu- severaKiVbtors. tors administrators or assigns the clear residue or surplus (if any) of the produce of his separate estate as also of the surplus (if any) of his share of the produce of the partnership eil'ects subject nevertheless to the provision hereinafter contained i. e. in case any one or more of the said (JJ.) is are or shall become a creditor or creditors of the other or others of them either by having paid or paying out of the produce of his etfects or other- wise debts or the share of debts payable by the other of them Then and in that case such of them the said (Z>.) as shall be a creditor or creditors shall receive out of the surplus which \vt)uld have belonticd to such of them as shall be a debtor or debtors as aforesaid the money which shall be owing to him or them as aforesaid any thing hereinafter contained to the contrary thereof 590 COMPOSITION. No. CCXCVII. Trust Deed. Provision as to the discharging bills before they are due. To discharge extents. To discharge debts not ex- ceeding the sum of£ Power to com- pound with cre- ditors, &c. Proviso that creditors may release or ex- tend the power of compound- ing debts. in anywise notwithstanding Provided always and it is hereby- declared and agreed by and between all the parties to these presents that in case there shall be any sum or sums of money owing or to be paid by the said (D.) on bills or otherwise which are not yet payable it shall and may be lawful for the said trustee or trustees for the time being to pay the same sums or a dividend thereon on being allowed discount or rebate for the time which shall remain unexpired at the time of the payment of the same sums of money in the same manner as if the same debts had been proved or claimed under an adjudication of bankruptcy Provided also that it shall and may be lawful for the trustee or trustees for the time being if he or they shall think proper out of the trust or any other monies which shall come to his or their possession under or by virtue of the grant and as- signment and covenant to surrender bearing even date with these presents to satisfy and discharge the extents at the suit of the Crown which have been awarded against the estate and effects of the said (D.) And also after paying thereout all such costs charges and expenses as are hereinafter directed to be raised to pay the several creditors of the said (Z>.) or of any of them whose debts respectively do not exceed the sum of £ each the full amount of such debts nevertheless with this restriction that the proceeds of the partnership effects as far as the same will extend shall be applied in payment of such only of the same debts as are owing on the said partnership ac- count and that the proceeds of the separate estates of each of them the said (D.) so far as the same will extend shall be paid and applied in payment of such of the same debts as are owing by each of them the said (Z>.) respectively upon his separate ac- count [but the partnership property or the proceeds thereof may by way of loan to the separate estate of the said(Z).) be applied in payment and discharge of the money to be levied on the said extents] And that it shall and may be lawful for the said (B.) or the survivor kc. or the trustee or trustees for the time being if he or they shall see occasion and in his and their discretion think it expedient to settle and agree with any of the creditors of the said (i).) jointly and severally whose respective debts do not amount to £ and to make them such payments or compensation for the same by way of composition as they may respectively agree to accept Provided alicays that if at any meeting of the creditors to be convened for the purpose [by the trustees or trustee for the time being by notice in writing stating COMPOSITION. 591 CCXCVII. Trust Deed. the time and place of such meeting to be dehvered to the said No creditors who shall have executed or acceded to these presents or their authorized agents or forwarded to them through the post at least six days before such meeting] or it shall be deemed expedient by the major part in value of the creditors then present and it shall be then and there resolved and determined that the power and provision lastly hereinbefore contained shall be released and abandoned or shall be enlarged and extended as to the amount of the debts to be compre- hended within such provision Then and in such case the same shall be either released and abandoned by the said trustee or trustees for the time being and shall thenceforth cease and be void to all intents and purposes whatsoever but without preju- dice to any composition or agreement previously made under or by virtue of the same provision or as the circumstances of the case shall require the trustee or trustees for the time being shall be at full liberty and have full power and authority to act under such enlarged or extended power of compounding debts as the case may be And also to pay to and for all or any of the ere- To set apart ditors of the said {B.) either jointly or severally who by reason dUors abroad of infancy or other disabiUty cannot legally or without breach of trust accede to these presents the full amount of the debts owing to the same respectively and also to appropriate and set apart the amount of the debts owing to creditors in India or in parts beyond the seas who shall not before a final dividend shall be made accede to and execute these presents And finnllij if it shall be deemed necessary or expedient to retain such sum or sums of money as shall be required to answer the full amount of the debts in respect of which such appropriation is to be made the balance or surplus of debts (if any) after satisfying the debts of the creditors residing abroad or so much of the same debts as the trustee or trustees for the time being shall think fit to satisfy shall be applied in the same or like manner as the residue of the produce of the said trust estates Subject nevertheless to the provision hereinafter contained (that is to say) Provided also and notwithstanding any thing hereinbefore contained it shall and may be lawful for the said trustee or trustees for the time being to compromise settle and ascertain the amount of the debt or debts claimed by the creditor or creditors respectively and also the fund on which the party or parties is are or ought to be deemed a creditor or creditors and also to separate distinguish and allot the separate property from the ])artnership proj)erty 592 COMPOSITION. No. CCXCVII. Trust Deed. Provision as to creditors having securities. Power to com- pound debts owing to the debtors. To sell upon credit. To refer dis- putes to arbi- tration. according to the best of his or their judgment for the purpose of dividing the final residue or surplus (if any) between the said {JD.) and their representative or representatives Provided also and it is hereby declared and agreed that any creditor or cre- ditors who hath or have any security for his her or their debt or any part thereof shall or may execute these presents without prejudice to the same security or securities with the consent of the trustee or trustees for the time being and convert the same into money and receive a dividend rateably with the other cre- ditors for so much of the same debt or debts as shall not be answered and paid out of the proceeds of the same security or securities Arid that the trustee or trustees for the time being shall or may in his or their discretion compound any debt or debts owing to the said {D.) or any one or more of them and accept part thereof or give further time for payment of the same debt or debts and shall or may sue or refrain from suing for any debt or debts as they shall think proper And that the trustee or trustees for the time being shall or may make any arrangement he or they shall deem proper with any person or persons holding any securities given by the said {D.) or any of them for the purpose of procuring pos- session of the lands and property comprised in any mortgage made or security given so nevertheless as that the considera- tion or price given upon such arrangement shall not exceed the amount or value of the principal and interest And further that the said trustee or trustees for the time being shall and may sell all or any part of the trust property for money to be paid at a future day or upon credit or for security or secu- rities by way of bills of exchange or otherwise as he or they shall think advantageous And shall or may sell or convert into money all contingent interests and securities which cannot im- mediately be enforced with a prospect of advantage and all debts which shall be deemed bad or doubtful or which cannot be collected within reasonable time And shall and may be at liberty at any auction or auctions to buy in all or any part of the trust property which shall be offered for sale and to resell the same at any future auction or by private contract without being liable to answer for any loss or diminution of price upon such resale And it is hereby further declared and agreed that in case any doubt or difficulty shall arise in ascertaining the amount of any sum or sums of money due or payable to any creditor or creditors of the said (Z>.) either on their partnership COMPOSITION. ' 593 or separate account Then and in every such case the full and No. . . . . CCXCVII. exclusive power of ascertaining the amount of the same debt or Trust Deed. debts respectively shall be referred to such person or persons as the said trustee or trustees for the time being on the one part and the creditor or creditors the amount of whose debt or debts shall be called in question of the other part shall appoint for that purpose And that the award and determination of the per- son or persons so appointed shall be final and conclusive on all persons entitled to any interest or benefit under these presents And that all differences which shall arise respecting the amount of any debt or debts owing to the said (D.) or any one or more of them jointly or separately or touching or concerning any pro- perty claimed as their or any or either of their effects or belong- ing especially to any of their creditors shall be settled in the same or like manner if the trustees or trustee for the time being shall think it proper and requisite to settle the same Audit is further Power to rent provided and agreed that the trustee or trustees for the time being clerks,' &c. shall and may rent and hire such places and employ such persons and at such salaries as he or they shall think proper and necessary for carrying on the affairs of the trust and at the expense of the trust estate And also in case it shall be deemed expedient to defend To defend 1 • ■ .1 i i i i xi actions, &c. any action or suit touching or concerning the trust estate the trustees or trustee for the time being shall or may exercise his or their discretion in commencing and defending the same and shall or may retain all costs charges and expenses in anywise relating thereto by and out of the monies which shall be received by him or them by virtue of the trusts aforesaid And further that it To allow shall and may be lawful for the trustee or trustees for the time oniouselioUl being to give and deliver to each or any or either of the said (D.) furniture, &c. either the use for a time to be limited or the absolute property of all or any part of the household furniture and linen of each of the said (Z>.) anything hereinbefore contained in anywise to the contrary notwithstanding (a) And it is hereby declared and ^^^'''''V^^ "f agreed that the receipt and receipts of the trustee or trustees vaiidWis-" for the time being shall be a full and effectual discharge and cl.argcs. full and effectual discharges to all persons who shall become purchasers of the estate and effects of the said {D.) to be con- veyed and assigned and covenanted to be surrendered by the said indenture bearing even date herewith and to his her or (a) This clause should not be inserted if tin; !irrany;eincnt is to he effected under the Bankrupt Law Consolidation Act, 1849. See ante, p. ^Ml, pi. VI. VOL. I. ti 'i 594 COMPOSITION. No. CCXCVII. Trust Deed. Purchasers not liable. To make a dividend of shillings in the pound ; and further dividends. To deposit trust monies with bankers. To make out an account at stated times, to be laid before creditors. their respective heirs executors administrators and assigns for such purchase money or so much thereof as shall by such receipt or receipts be acknowledged or expressed to be received so that no such purchaser or purchasers or any of them or any or either of their heirs executors administrators or assigns shall afterwards be subject or liable to attend or see to the application of such trust monies or any part thereof or be responsible or accountable for the misapplication of such trust monies or any part thereof by reason or means of the trusts hereinbefore declared or upon any other account whatsoever And each of the said [T.) for himself severally and respectively and for his several and respec- tive executors administrators and assigns and not the one for the other of them doth hereby covenant with the said per- sons parties hereto of the third part and each of them their and each of their executors administrators and assigns that they the said {T.) or the survivors &c. shall and will from time to time as soon as conveniently may be after the date hereof make a dividend or dividends of all the trust monies which shall have been received by them or any or either of them by virtue or in pursuance of the said indenture of even date herewith unto and amongst all the creditors of the said {D.) who shall execute or accede to these presents rateably according to the several trusts hereinbefore expressed and declared concerning the same Subject nevertheless to the provisions hereinbefore contained and shall and will make the first dividend as soon as the money in hand shall be sufficient to pay shillings in the pound on the amount of the debts payable out of the same money and a further dividend from time to time as often as the money in hand shall be sufficient to pay shillings in the pound And that the money which shall from time to time be received on account of the said trust estate and all bills and securities for the same shall be deposited with Messrs. bankers in the name and names of the trustee or trustees for the time being And also shall and will once in every calendar months or oftener if they shall think proper make out a full particular of the account in the business of the trusts reposed in them as aforesaid and produce the same for the inspection of the said parties hereto of the third part at a meeting to be called for that purpose by fourteen days' notice in writing delivered to the said creditors or their authorized agents or forwarded to them through the post and at such meeting shall and will make all such statements and give all such explanations as shall be COMPOSITION. 595 requisite for the elucidation of the same accounts and shall and No. T . . CCXCVIT. will in the execution of the said trusts reposed in them as afore- ^ ' " ' Trust Deed. said act to the best of their or his judgment for the benefit and ad- vantage of all the persons interested in the same trust Provided ahi-ays and it is hereby further declared and agreed that when all the trusts hereby reposed in the said {T.) or the survivors &c. shall be fully executed and performed as far as the same shall in the opinion of the trustee or trustees for the time being be practicable the said trustee or trustees for the time being shall call a meeting of the creditors of the said (-D.) by fourteen days' notice to be delivered or forwarded as aforesaid and at such meeting shall and will produce their account respecting the trusts hereby in him and them reposed for the inspection of the creditors present at such meeting And that the major part in value of the creditors so present shall have full power by their resolution to allow the same accounts and that when so allowed they shall be binding and conclusive on all parties interested therein And that the same major part of the creditors shall also Trustees to be have full power to declare the trustee or trustees for the time being fully acquitted and released and he and they accordingly shall be acquitted and released from the trusts reposed in him and them and the trust accounts finally closed subject neverthe- less to any payment by way of final dividend of the trust money then in hand Provided alwaijs and it is hereby declared and Appointment 11 1 • .1 i ii, i • of new trustees, agreed by and between the parties to these presents that m case of the death of any one or more of the said (71) or in case any of them shall refuse decline or be incapable to act Then and in either of these cases it shall and may be lawful for the major part in value of the creditors of the said (I>.) to be present at any meeting to be convened by two or more of the creditors of the said {D.) who shall have become parties to or acceded to these presents of which meeting at least days' notice specifying the object time and place of such meeting shall be delivered to the said other creditors or their agents or forwarded to them through the post office to nominate and choose such person or persons as they shall think fit to be a trustee or trustees in the place of such trustee or trustees as shall die refuse decline or be incapable to act and every such person so to be chosen shall have the like power authority and control as any of them the said ( T.) have or can or may have by virtue of these presents And further that the said (2'.) or the survivors Indemnity to &c. or the trustee or trustees for the time being shall be charged Qq2 596 COMPOSITION. No. CCXCVII. Trust Deed, Trustees to re- imburse them- selves. To refer doubt- ful matters to a meeting of creditors. and chargeable only for such monies as the same trustee or trustees respectively shall actually receive by virtue of the trusts hereby reposed in him or them notwithstanding his their or any of their giving or signing or joining in giving and signing any receipt or receipts for the sake of conformity And that any one or more of them shall not be answerable or accountable for the other or others of them but each and every of them respectively for his own acts deeds and neglects or defaults only And that they or any or either of them shall not be answerable or ac- countable for any banker broker or other person with whom or in whose hands any part of the trust monies shall or may be deposited for safe custody or otherwise in the execution of the trusts hereinbefore mentioned or for any person or persons who shall be employed to assist them as aforesaid in the execution of the said trusts or for any other misfortune loss or damage which shall or may happen to the trust estate in the execution of the aforesaid trusts or in relation thereto unless the same shall happen by or through their own wilful negligence or default only And also that it shall and may be lawful for the trustees or trustee for the time being by and out of the monies which shall come to their or his hands by virtue of these presents to retain and reimburse himself and themselves respectively and also to allow to his and their co-trustee or co-trustees all costs charges damages and expenses which they or any of them shall or may suffer sustain expend disburse be at or put unto in or about the execution of all or any of the aforesaid trusts or otherwise by virtue of these presents (a) Provided always and it is hereby de- Covenant by creditors to indemnify the trustees against loss. {a) In some cases it seems advisable for trustees to require a covenant for their indemnity from the creditors, the following form is taken from the 8th Vol. of Byth. Conv. by Jarman, pp. 384, 385 : — And each and every of the creditors parties hereto of the third part severally separate and apart from the others of them doth hereby for himself and her- self respectively and his and her respective heirs executors and administrators and as to and concerning only the acts deeds and defaults of himself and herself respectively and his and her respective heirs executors administrators and partners covenant with the said trustees their executors and administrators that in case any trustee or any one or more of the said trustees for the time being his or their heirs executors or administrators shall sustain or incur any losses costs damages or expenses by reason of the acceptance of the trusts hereinbefore contained or any act relating thereto Then and in that case each of the said creditors parties to these presents of the third part his or her executors administrators or partners when thereunto required by the trustee or trustees for the time being his or her executors or administrators COMPOSITION. 597 clared and agreed by and between the parties to these presents ^^^°\.^^ that in case any question matter or thing shall arise in the ma- ^^J^^ ^ ^ nao-ement reoulation or conduct of the atlairs of the said (D.) or any or either of them which is not distinctly and clearly provided for by these presents and by the said indenture of &c. or in case the trustee or trustees for the time being shall not be able to determine and agree upon the course of conduct to be pursued in the management of the said trusts Then and in every such case it shall and may be lawful for the trustee or trustees for the time being to call a meeting of the creditors of the said (D.) by fourteen days' notice in writing specifying the object of such meeting and the time and place of meeting to the said creditors or their authorized aoents to be delivered to them or forwarded to them through the post office and to submit such question matter or thins to the consideration of the creditors who shall or may be present at such meeting and that the determination of the major part in value of the said creditors present at such meeting respectively shall be binding and conclusive on all parties entitled to any benefit under the trusts hereinbefore expressed and declared And further that if any question shall arise upon the true construction of these presents or of any clause or provision herein contained the same shall be submitted to Esquires Lincoln's Inn and the opinion of them or any two of them shall be binding and conclusive Provided always and notwithstanding all or any of the provisions Insolvents to . , , • T T-» v' 1 11 i ii, 1 1 r stand in the hereinbefore contamed the said {!).) shall as to the balance ot ^^^^^^ relation the accounts subsisting or to arise between them as partners or to cad. otl.er, on account of the partnership either by any payments made or bankruptcy. hereafter to be made by any or either of the said partners or out of his or their effects beyond his or their j^roportional part or shall and will answer and pay to the trustee or trustees for tlie time being: his or their heirs executors or administrators such sum or sums of money as shall be the proportion of each of same creditors respectively of the same losses costs damages and expenses and that such proportion shall be esti- mated by the full amount of all the demands of the creditors lespectively including the demands of the said trustees who are or shall become parties to these presents by executing or acceding to the same and for whicii no mort- gage or specific security is held by the same creditors so that such creditor so executing or acceding to these presents his or her executors or administrators shall contribute in proportion to his or her drmaiids respectively when com- pared with the full amount of the demands of all the creditors including tlu: said trustees who shall execute or accede (o these presents (except ns albre- said). 598 COMPOSITION. No. CCXCVII. Trust Deed. Covenants from debtors, that they have made out a true account of their estate ; will assist the trustees in managing the concerns. parts be in the same situation in all respects and have the same and like remedies as near as may be as he or they respectively would have had as to and against any one or more of them his or their executors or administrators in case they had become and had been adjudicated bankrupt and each of them had severally obtained his certificate under the same adjudication so that on the one hand no one or more of them the said (D.) his or their heirs executors or administrators may remain liable to the other or others of them his or their heirs &c. for any debt or duty which would have been discharged or relieved by such adjudication of bankruptcy and certificate thereunder and so that on the other hand no one or more of them his or their heirs executors or administrators may be discharged from any debt or duty to which he or they would have been liable in case of such bank- ruptcy and certificate under the same And each of them the said (1>.) for himself his heii'S executors and administrators and as to and concerning only the acts deeds and defaults of himself his heirs &c. doth hereby covenant with the said {T.) and each of them their and each of their executors and adminis- trators that they the said {D.) respectively have at or before the time of their respective executions of these presents made a true and faithful account and discovery to the trustees parties hereto of all the estate effects and property real and personal belonging to them as well on their partnership as on their respective private accounts and that they have not concealed withheld or embezzled any part or parts thereof and that the said books of account signed by the said (Z>.) respectively and dehvered up to the said {T.) at the time of the execution of these presents do contain a just and true account of all the part- nership and private estate effects and debts of them the said (Z>.) respectively as far as it is in their power to make out the same accounts And that they the said (D.) and every of them shall and will at any time or times hereafter when thereunto requested make such discoveries in relation to and such explanations of their affairs as the trustees or trustee for the time being shall require and shall and will assist the trustee or trustees for the time being in conducting and managing the concerns of the said trust estate in such manner as to the said tiustees shall seem rea- sonable And further that if any or either of them the said {D.) have or has wilfully concealed or shall wilfully conceal any part of his partnership or private property to the value of £ or shall be guilty of any wilful breach or default in performance COMPOSITION. 599 of his covenants herein contained or any of them Then and in No- that case on demand thereof made by any one or more of tlie ^.^^'^^ ^^^^' said creditors parties hereto of the second and third parts his • her or their executors or administrators the person or persons by whom such concealment breach or defauH has been or shall be made his or their heirs executors or administrators shall and will answer and pay to all and every the same creditor or creditors respectively his her or their executors administrators or assigns the full amount of the debts owing to the same creditor or creditors respectively or so nmch thereof as shall not have been previously received by him her or them under the trusts herein- before declared and contained And this Indenture further u'it- Letter of nesseth That in consideration of the premises they the said several parties of the second and third parts IJo and each of them Doth give and grant from the execution of these presents henceforth until the trustee or trustees for the time being by any writing under his or their hand or hands to be indorsed on these presents or a duplicate thereof shall declare the benefit of this present provision to be forfeited or otherwise determined and at an end by the nonconformity or misconduct of him or them the said t, D.) ftill and free liberty &c. [see a?ite, Letter of Licence, p. 580] and that if the said (T.) or (C) or any of them shall molest or inter- fere with the persons or effects of the said (D.) or any or either of them otherwise than in the execution of the trusts aforesaid and contrary to the true intent and meaning of these presents then the said (D.) or such one or more as shall be so molested as aforesaid or his or their heirs executors or administrators shall thenceforth be and by these presents he and they is and are clearly and for ever acquitted exonerated and discharged of and from all actions suits debts covenants securities claims and demands whatsoever at law and in equity of the creditor or creditors by whom they the said (/>). or any or either of them shall be so molested as aforesaid and that this present letter of licence may be pleaded &c. [ante, p. 578] And fur- On certificntc ther that when and so soon as the said {T.) or the survivor ^I.i'lll'rlfllJ'bc' &c. or the trustee or trustees for the time being shall by writing liisdiarRi'ilfrom under his or their hand or hands to be indorsed upon these presents certify that the said (Z>.) have conformed themselves in all respects to their or his satisfaction so as to be entitled to be discharged from their debts then and immediately after such certificate shall be indorsed thereon and signed by the trustee or trustees for the time being they the said {I).) their executors and coo COMPOSITION. No. administrators shall thenceforth be absolutely discharged of and CCXC . ^^^^ ^j^ ^^^j singular the debts and sums of money and other Trust Deed. . — demands whatsoever which are now due and owing or secured or payable by or from the said {D.) or any of them to the said cre- ditors in the way of their business and also upon their private or separate accounts respectively or upon or by virtue of any security or securities or any other considei'ation or account whatsoever and also of and from all and all manner of actions suits proceedings damages costs charges and expenses dues debts reckonings Debtors having accounts claims and demands in anywise relating thereto And tStef noTto farther that they the said creditors parties hereto of the second be sued, except ^j^^ third parts or any or either of them their or any of their exe- ormi y. ^^^^^^ ^^ administrators or partners shall not nor will for or in respect of any debt or demand now due or owing to them or any or either of them arrest or attach the person or goods of any or either of them the said (/>.) in whose favour such last mentioned certificate or certificates shall have been signed nor take his or their person or persons or his or their real or personal property in execution nor sue him or them in whose favour such last men- tioned certificate shall have been signed in any other manner than If sued for con- for conformity only And also that in case the person or persons e?pelSs'to be ii^ whose favour such last mentioned certificate or certificates repaid. g^all be signed shall appear to any action or actions suit or suits in which he or they shall be named for conformity or shall suffer the plaintiff or plaintiffs in such action or actions suit or suits to enter (as he she or they is and are hereby authorized to do) an appearance or as the case may be file common bail for the person or persons in whose favour such last mentioned certificate or certificates shall be signed such plaintiff or plaintiffs shall and will reimburse and pay to the said person or persons respectively who have obtained his or their certificate or certificates as aforesaid the full amount of all the costs charges damages and expenses which shall be incurred or sustained by such person or persons respectively by reason or on account of such actions or suits or any of them In witness (fee. COMPOSITION. 601 No. CCXCVIII. No. CCXCVIII. Assignment of Stock in Trade, Debts and Effects of Copartners Assignment by for the Benefit of Creditors. {General Precedent.) ^'rruTflr"* This Indenture made &c. Between A. and B. of &:c. carryina' ' ^ ^ ''""' on trade in copartnersbijj under the firm of A. and B. of the first part ( Trustees) of the second part and the several persons whose names and seals are hereunto set and affixed (bein*;- joint and separate creditors of the said A. and B.) of the third part Whei'eas the said A. and B. have for several years past carried on Recital of the trade or business of merchants under the firm of A. and B. f^'"';)''"^ "" business. and have become and now stand indebted on their joint account to the several persons and in the several sums set opposite to their respective names in the first schedule hereunder written And whereas the said A. is indebted on his own separate account of partners to the several persons parties to these presents of the third part ^^'"'^ indebted. in the several suras set opposite to their respective names in the second schedule hereunder written And whereas the said B. is indebted to the several persons parties hereto of the third part in the several sums set opposite to their respective names in the third schedule hereunder written And whereas the capital stock of property of or property of the said A. and B. belonging to them on their P'^ftncrs. joint account consists of a certain messuage warehouses and pre- mises situate at and demised to them the said A. and B. by a certain indenture of lease bearing date the &c. for a term of years And also of divers goods merchandize vessels bonds bills and other securities debts and effects And whereas the separate property of the said A. consists of sundry household goods furniture china plate linen and also several policies of insurance And whereas the separate property of the said B. Ofafrrecmcnt consists of (fee. [here state it] And whereas the said A. and B. ^° "^^'o"- being unable to pay to every their joint and separate creditors the whole of their respective demands have agreed to convey and assign all and singular the estate property debts and effects belonging to them as well on their joint as on their separate account unto the said (2'.) their executors administrators uiul assigns upon and for the trusts intents and purposes and with under and subject to the powers provisoes and agreements here- inafter expressed declared and contained And whereas the said (Creditors) have consented to accept the offer of the said A. and B. subject to the provisoes and agreements licrtiiniftcr 602 COMPOSITION. No. mentioned and declared Noic this Indenture witnesseth That in CCXCVIII. , . ,' pursuance of the said agreement they the said A. and B. Do Assignment fc?/ ' ^ ^ _ Copartners in and each of them Doth by these presents assign unto the said ( T.) Creditors their executors administrators and assigns All that messuage ' , : or tenement warehouses and in'emises comprised in the said General assign- . • i • i p c \ i n i ment of effects. HI part recited nidenture of &c. (a) and all the rents issues profits benefit and advantage to arise therefrom And all and singular the vessels merchandize stock in trade chattels debts and effects of them the said A. and B. as such copartners as aforesaid And also all and every the bills notes bonds policies of insurance and other securities And all other the property and effects of them the said A. and B. or either of them of M'hat nature or kind soever and wheresoever situate and being and in whosoever hands custody or power the same or any of them or any part or parts thereof now are or at any time hereafter may be with their and every of their appurtenances And all the estate right title interest claim and demand what- soever of them the said A. and B. or either of them as well jointly as separately of to in or out of the same premises and any of them respectively the wearing apparel of themselves and families excepted To have and to hold the said messuage or tenement warehouses and premises comprised in the said in- denture of lease unto the said {T.) their executors administrators and assigns for the residue now to come of the said term of years upon the trusts hereinafter declared And to have hold receive and take the said vessels merchandize stock in trade chattels debts &c. and all and singular other the premises hereby assigned or intended so to be unto the said {T.) their executors administrators and assig-ns Nevertheless as to all the Trust to sell premises hereby assigned or intended so to be Upon trust That they the said {T.) and the survivors or survivor of them or the executors or administrators of such survivor shall with all con- venient speed sell and dispose of the said messuage warehouses and premises vessels merchandize stock in trade chattels and all and singular such parts of the joint and separate estate pro- perty and effects of the said A. and B. as are saleable for such price or prices as can be reasonably gotten for the same with power to buy in the said premises or any part thereof at any sale or sales by auction and to rescind abandon or vary any contract for sale and to resell the premises which shall be so (a) It is advisable to assign leaseiiolds by a separate deed upon trusts for sale. See ante, pp. 586, 587. and convert into money. COMPOSITION. 603 bought ill or the contract for the sale of which shall be so No- ..... CCXCVIII. rescinded or abandoned as aforesaid without beni.) their executors and administrators that they the said respective covenanting parties or their respective heirs executors administrators and assigns shall not nor will at any time or times hereafter unless and until these presents shall become void under the proviso hereinafter contained commence or prosecute any action or actions suit or suits at law or in equity against tlie said {D.) or either of them their or either of their heirs exe- cutors and administrators or make any attachment of or upon their or either of their estates or effects for or by reason of any debt or debts now owing by the said (Z>.) to them or any oi' them And in case any or eithei' of the said covenanting parties their or any or either of their respective heirs executors admi- nistrators or assigns shall commence any such action suit or 608 COMPOSITION. No. attachment contrary to the true intent and meanmsf of these C C X f ' V II 1 • • ■ l^resents that then and in such case the said (-0.) respectively Assignment bi/ ' . . , . i • • Copartners in and then' respective heirs executors or administrators shall and c^"d^t ^^y P^6^^ these presents as a general release in bar of" all and ■ every such actions suits or attachments [Provided always that to^sueoTher^ ' nothing herein contained shall extend or be deemed or con- persons re- strued to extend to prevent the said creditors parties hereto or any of them or their partner or partners of their or any of their respective heirs executors administrators or assigns from suing or prosecuting any other person or persons other than the said (/).) their executors administrators or assigns who is are or shall or may be liable or accountable to pay or make good to any of the said creditors all or any part of their said respective debts either as draw^ers endorsers or acceptors of any bill or bills of exchange or promissory note or notes or as being jointly and severally bound in any bond or bonds obligation or obli- gations or other instrument whatsoever or otherwise howsoever Deed to be void as if these presents had not been made] And lastly it is hereby concurTn ^^°^^ agreed and declared between and by all and every the said limited time, parties hereto that in case any of the creditors of the said {D.) or either of them whose respective demands shall amount to the sum of £ shall not execute these presents and accede to the assignment hereby made within the space of three calendar months from the day of the date of these presents Then and in such case and from thenceforth this present indenture and every clause matter and thing herein contained shall be absolutely null and void to all intents and purposes whatsoever to the end that all the creditors of the said [D.) may have and be entitled to such remedy for recovering their said several and respective debts from the said {debtors) or either of them out of their re- spective estates and effects as they or any of them would have been entitled to if these presents had not been made Provided nevertheless and it is hereby declared that this provision shall not invalidate prejudice or affect any of the acts receipts dealings or transactions of the said (7^.) their executors or administrators (a) Although the stat. 12 & 13 Vict. c. 112, s. 228, provides, that no creditor sliall be prejudiced or aiFected by being a party to a deed under the 224th section as to his right or remedy against any other person other than the debtor, it will frequently be advisable to insert a provision for reserving to creditors their remedies against sureties. See Forsyth on Deeds of Com- position, pp. 85 — 111), 3rd ed.. Ex parte Harvey re Blakely, 4 De G., M. & G, 881. See ante, pp. 567, 568, post, p. 613. COMPOSITION. 609 under or by virtue of the powers and authorities herein con- tained but that in case this proviso shall take effect the said ( T.) their executors administrators or assigns shall and may after reimbursing themselves respectively all costs and expenses at- tending the sale conversion and getting in such part of the stock in trade credits and effects hereby assigned or intended so to be as shall then have been sold converted and got in pay over the residue or balance in their hands respectively of the monies arising therefrom And also deliver up such part or parts thereof as shall not have been sold converted and got in unto the said (2>.) their respective executors administrators or assigns for his or their own absolute use and benefit In witness &c. {a) No. CCXCVIII. Assignment by Copartners in Trust for Creditors. Schedules. I. Joint and separate debts of A. and B. 11. Separate debts of A. III. Separate debts of B. No. CCXCIX. No. CCXCIX. Assignment hy a Debtor of all his Estate and Effects for the Assignment by one Debtor in Trust for 185 Between '''''''''"' Benefit of his Creditors. This Indenture made the day of (Debtor) of &:c. of the first part (Trustee) of &:c. accountant of the second part and the several persons whose names and seals are hereunto subscribed and affixed being creditors of the said (D.) of the third part Whereas the said (D.) is indebted to various persons and being unable to pay his creditors their re- spective demands in full has determined to convey and assign all his real and personal estate whatsoever unto the said ( T.) upon the trusts and for the purposes hereinafter declared concerning the same Now this Indenture witnesseth That in consideration of Testatum, the debts so respectively owing by the said (-D.) he the said (D.) doth hereby grant bargain sell assign transfer and set over unto the said ( T.) his heirs executors administrators and assigns all and (a) In some cases it may be advisable to provide that, in the event of the deed becoming void, the trustees shall reconvey all such parts of the property as have not been sold or disposed of, and to pay over all money received under the trusts to the debtors, after retainiug out of the monies all costa incurred by the trustees. VOL. I. ^ ^ 610 COMPOSITION. Trust for Creditors. No. CCXCIX. sino;ular the lands tenements and hereditaments (if any) goods Assignment by chattels monics credits estate and effects both real and personal of or to which the said (Z>.) is seised possessed or otherwise entitled for his own benefit in any manner whatsoever except the necessary wearing apparel of himself his wife and family and except leaseholds held at rack rent (a) Together with full and free power and right of entry into and upon all and every the messuages or tenements and hereditaments wherein the goods and chattels effects and premises hereby assigned or any of them now are or hereafter may be And all the estate right title interest possession property claim and demand whatsoever of the said (Z).) of into out of or upon the premises hereby granted and assigned or intended so to be or any part thereof To have and to hold all and singular the said premises hereby respec- tively granted and assigned or intended so to be and every part thereof (subject nevertheless to any subsisting charges or in- cumbrances thereon) unto and to the use of the said {T.) his heirs executors administrators and assigns according to the nature and quality thereof respectively henceforth for ever Upon the trusts nevertheless and for the several intents and purposes hereinafter expressed and declared concerning the same And for better enabling the said {T) his executors ad- ministrators and assigns to get in and receive the said credits monies and effects hereby assigned or intended so to be the said (Z>.) hereby constitutes and appoints the said (7'.) his executors administrators and assigns to be the true and lawful attorney or attornies irrevocable of the said (D.) in his name or in the name or names of the said attorney or attornies to ask demand and receive from whomsoever it may concern all the said credits monies and effects hereby assigned or intended so to be and in case of the nonpayment or nondelivery of the same or any part thereof respectively to commence and prosecute any action (rt) Where there is any lease not giving a beneficial interest, it seems arlvisable to except it, that the trustees may not become liable to the rent and covenants. See How v. Kennett, 3 Ad. & Ell. 659 ; Carter v. Warne, Mood. & M. 479. Under an assignment to creditors by a debtor of ail his stock in trade, book and other debts, goods, securities, chattels and effects whatsoever, except the \\earing apparel of himself and his family ; it was lield, that a contingent interest in the residuary estate of a testator (to which the debtor was entitled in the event of his sister dying without a child) passed, Ivison v. Gassiot, 3 De G., M. & G. 9-58. See Liinn v. Thornton, 1 C. B. 379, ante, p. 464 ; Binger v. Cann, 3 M. & W. 343; West v. Steward, 14 M. & W. 47. Power of attor- ney. COMPOSITION. 611 or actions suit or suits at law or in equity or to take and pursue No. ccxcix. any other lawful means for enforcing the payment and dehvery of ^^'J'^JJ^"' J^ the said credits monies and effects and any part thereof and also Trust for to substitute or appoint any person or persons to act under or in 1J_^ — the place of the attorney or attornies for all or any of the pur- poses aforesaid and every such substitution at pleasure to revoke and the said (D.) hereby grants unto the said {T.) his executors administrators and assigns and to his or their substi- tute or substitutes the full power and authority of the said (/).) over the premises and hereby undertakes to ratify and confirm whatsoever the said (J".) his executors administrators or assie:ns or his or their substitute or substitutes shall lawfully do or cause to be done in or about the premises by virtue of these presents And the said {D.) for himself his heirs executors Covenants by and administrators doth hereby covenant with the said (T.) his heirs executors administrators and assigns that the said (Z).) will make a true and full discovery to the said (T.) or to make full other the trustee or trustees for the time being of these presents effects!"^^ ° of all his estate and effects and that he will when thereupon required by the said {T.) or other the trustee or trustees for the time being of these presents give such further explanations of his affairs and assist the said {T.) or such other trustee or trustees for the time being as aforesaid in managing and conductincr the concerns of the said trust estate in such manner as by the said ( T.) or the said trustee or trustees shall be thought reasonable and shall be required And also that the said (Z>.) Not to release. will not release or intermeddle with the estate and effects re- spectively hereby granted and assigned or any part thereof respectively nor revoke or make void the power and authority hereinbefore given to the said {T) his executors administrators and assigns or do any act by which the same may be revoked or become void And also that the said {!).) his heirs executors Further assur- or administrators and every person whomsoever claiming under ^"'^^• him or them will from time to time and at all times hereafter at the request of the said (T.) or other the trustee or trustees for the time being of these presents but at the expense of the said trust estate make do and execute any such further and other act deed grant assignment or other assurance in the law what- soever for more effectually granting assigning or otherwise assuring the said several premises hereby granted and assigned or intended so to be unto the said {T.) or other the trustee or trustees for the time being of these presents and for enabling R R 2 612 COMPOSITION. No. CCXCIX. Assignment by one Debtor in Trust for Creditors. Trust to sell estates, to pay costs ; and creditors executing this deed, to pay interest. him or them to get in recover and receive the monies credits and effects hereby assigned and every part thereof respectively upon the trusts aforesaid and according to the true intent and meaning of these presents as by the said ( T.) or such other trustee or trustees as aforesaid or his or their counsel in the law shall be reasonably advised and required and shall be ten- dered to be made done and executed Arid this Indenture further witnesseth and it is hereby declared and agreed by and betv^^een the said parties to these presents that the said ( T.) his heirs exe- cutors administrators and assigns shall hold the said estate and effects hereby granted and assigned or intended so to be Upon trust as soon as conveniently may be after the execution of these presents to sell and dispose of all the lands tenements and hereditaments (if any) goods chattels and saleable effects either by public auction or private contract for the best price or prices that can be obtained for the same (a) and collect in all the monies and credits and out of the monies which shall be so realized in the first place pay and satisfy the costs charges and expenses incurred since the day of last in the investigation of the affairs of the said (D.) and of and relating to the preparation and execution of these presents and the carrying into execution the trusts hereby created including therein the usual professional charges of the said {T.) and other the trustee or trustees for the time being as an accountant or accountants in the matter relating to the said trusts and upon trust to divide the residue of the same monies as and when the same shall from time to time be gotten in and received and shall amount to a competent sum amongst all the creditors of the said (/>.) who shall execute or accede to these presents within three calendar months after the date hereof or the executors and administrators of the said creditors respectively in rateable proportions according to the amount of the respec- tive debts now owing by the said (Z>.) or to which he is now liable to the said creditors and in satisfaction (so far as such monies will extend) of the said debts and in case the said monies shall be more than sufficient to pay the whole amount of the principal of the said debts respectively then upon trust to pay interest for the said debts respectively after the rate of Five pounds per centum per annum to be computed upon such {a) See ante, p. 586, for a fuller trust for sale which is generally to be preferred. • COMPOSITION, 613 of the said debts as are now due from the date of these presents No. CCXCIX. and upon such of the said debts as shall become due subse- "^^J'^'Sf,? Quentlv from the day or respective days of their becoming due (a) Trust for - • Creditors. and in case after payment of the costs charges and expenses aforesaid and the several debts aforesaid with interest for the same any surplus of the said monies shall remain then upon ti-ust to pay the said surplus to the said {D.) his executors admi- nistrators or assions for his or their own use and benetit Provided Dividend may alicaijs That it shall be lawful for the said ( 7'.) or such other trus- tees or trustee as aforesaid to delay making any dividend amongst his creditors until he or they shall have sufficient to pay in the pound on their respective debts unless directed to pay a less dividend by a majority in value of creditors present at a meeting to be convened as hereinafter mentioned for that pur- pose or unless the ultimate amount on the final realization of the trust funds shall be insufficient to pay so large a dividend Provided and it is hereby declared that all monies to be re- Monies to be ceived by the said (T.) or other the trustees or trustee for the P^' time being of these presents shall be paid in the name of the said (jT.) or other the trustee or trustees for the time being as aforesaid to a separate account entitled " the trustee of (D.) in the banking house of Messrs. & Company (or such other bankers as shall be named by the majority in value of the creditors present at a meeting to be convened as hereinafter mentioned) there to remain for safe custody until a division shall be made thereof in manner aforesaid but with full power for the said ( T.) or such other trustees or trustee as aforesaid in the meantime to invest the same monies or any part thereof in the purchase of exchequer bills or the government funds or securities Provided always that the said trust monies applicable to the payment of the said creditors shall be paid and applied and the same right and equities shall prevail in respect thereof and in respect to any charge or liens on any of the trust pro- perty as if the said (Z>.) had been duly declared and adjudged a bankrupt on the day of the date of execution of these presents Provided also that nothing herein contained nor any release or Creditors- letter of Ucence to the said (/>.) which shall be executed by any ".^JgiieVp^r^J-"'* of his said creditors shall be construed to extend to exclude or served. prevent any creditor or creditors of the said {D.) from suing any person or persons who may have become bound as the surety or (a) See Bateman v. Margerison, IG Beav. 477 ; Clowes v. Waters, 21 L. J., Ch. 840. 614 COMPOSITION. No. CCXCIX. sureties of the said (i>.) or who is or are in any manner liable Assignment by fgj, ^^g payment of any debt or debts of the said {D.) but that ""'xrustfor''' the Said creditor or creditors shall have the same remedy Creditor s. against such surety or sureties as the same creditor or creditors Creditors to might have had if these presents had not been made Provided prove debts. nevertheless that no creditor or creditors of the said {D.) shall be entitled to receive any dividend or dividends by virtue of these presents until such creditor or creditors shall have verified or proved his her or their debt or respective debts by solemn statutory declaration or otherwise to the reasonable satisfaction of the said ( T.) or other the trustees or trustee for the time being of these presents and that no creditor holding any security shall be entitled to a dividend on any greater sura than shall remain due to him after realizing his security by sale of the property therein comprised for the best price that can be obtained for the same Receipts of Provided also and it is hereby further declared that the receipt trustees to be ^ ^j j^ z^'.) or Other the trustee or trustees for the time being of these presents for any monies or effects to be paid or delivered to him or them by virtue of these presents shall be effectual discharges to the person or persons paying or delivering the same and that he or they shall not be in any way responsible Trustee may for the application thereof Provided also that it shall be lawful settle accounts, ^^^ ^^^ ^^j^ ^ ji^^ ^^ ^^^^^ ^Y\e trustee or trustees for the time being to adjust and settle all accounts between the said (X>.) and his late partners or between him and any other person or persons and to submit all disputes concerning the trust affairs to arbitration or other settlement to accept any compromise or composition in respect thereof to commence or prosecute any suit or action at law or in equity relating to any part of the said trust estate or to stay proceedings therein to keep up any policies of assurance on the life of the said (/>.) at the expense of the trust estate or to surrender or otherwise dispose of the same and generally to act in relation to the said trust affairs as the said ( J'.)or other the trustee or trustees aforesaid shall in his or their discretion think most to the advantage of the trust estate and to Certain steps a])ply any of the trust monies for any such purposes Provided not to be taken nevertheless that as between the said {T.) or the trustee or consent of ere- trustees aforesaid on the one hand and the said creditors on the ditors. ^^j-jg^ hoxi^ but not so as to aflect persons dealing with the said {T.) or other the trustee or trustees aforesaid under the powers hereinbefore contained no action at law nor suit in equity shall be commenced or being now pending shall be prosecuted at the expense of the trust estate, nor shall any account claim or COMPOSITION. ' 615 demand relating to any sum or sums of money or property ex- No. CCXCIX. ceedino; in amount or value the sum of £ be adjusted ^ssipnment b;/ settled or compromised by the said {i.) or other the trustee or Trust for trustees aforesaid without the previous consent of the majority Creditors. in value of the creditors aforesaid who by themselves or their agents shall be present at a meeting convened for the ])urpose by the said {2\) or such other trustee or trustees as aforesaid (or by creditors who shall have become parties to or acceded to these presents as aforesaid whose debts shall amount in the aggregate to £ at least) of which meeting at least six days' previous notice specifying the object of such meeting and the time and place of meeting within the City of London shall have been given by the person or persons convening the meeting to the said creditors who shall have executed or acceded to these presents or their authorized agents such notice to be delivered to the said creditors or their agents or forwarded to them through the post office Provided also that it shall be lawful Allowance to for the said {T.) or such other trustee or trustees as aforesaid to make such allowance or allowances to the said (D.) out of the trust money for assisting in the preparation of the accounts and for rendering assistance in the winding up of the said affairs as to the said (T.) or such other trustee or trustees as aforesaid shall seem reasonable not exceeding the sum of £ Pro- Power to vided also and it is hereby further agreed and declared that in ^r^^te'es."^ case the said ( T.) or other the trustee or trustees for the time being of these presents or any of them shall die or become incapable or unwilling to act in the trusts aforesaid it shall be lawful for the majority in value of the said creditors who by themselves or their agents shall be present at any meeting to be convened as hereinbefore mentioned by any resolution in writing signed by the chairman of such meeting on behalf of the persons present to appoint any person or persons to act in the stead of the said {T.) or such other trustee or trustees as aforesaid and thereupon all the said trust estate and effects shall be forthwith conveyed assigned and assured so as that the same respectively may become vested in the trustee or trustees so to be appointed as aforesaid either alone or as the case may be jointly with such other trustee or trustees as aforesaid and every such new trustee and also every person who shall have been constituted a trustee to these presents by any court of competent jurisdiction and whenever more than one person shall be constituted trustees the surviving trustees or trustee shall as well before as after the 616 COMPOSITION, No.CCXCIX. trust estates shall have been conveyed transferred or assigned as Assignwent by aforesaid have such and the same powers and authorities to all Trust for intents and purposes whatsoever as if he had originally been Creditors. nominated a trustee in these presents [Clauses to be added for the indemnity and reimbursement of Trustees^ In witness Sec. No. CCC. No. CCC. Short Assign- Assignment of Personal Estate and Effects to Trustees for the ment in Trust for Creditors. Recital. General as- signment. benefit of Creditors. {Concise Form.) This Indenture made the day of one thousand eight hundred and Between {Debtor) of Sec of the first part {Three Trustees) trustees for themselves and the rest of the creditors of the said {D.) parties hereto of the second part and the several other persons whose names and seals are hereunto subscribed and set being respectively creditors of the said {D.) of the third part Whereas the said {D.) is justly indebted unto the said parties hereto of the second and third parts in the several suras set opposite to their respective names in the sche- dule hereunder written which the said {D.) is unable to pay in full and the said {D.) hath therefore proposed and hath agreed to assion all his estate and effects unto the said trustees for the benefit of his creditors as hereinafter mentioned Now this In- denture witnesseth That in pursuance of the said agreement and in consideration of the premises and of five shillings of lawful money of Great Britain to the said (Z).) in hand paid by the said trustees at or before the execution hereof the said (Z>.) Doth by these presents bargain sell assign transfer and set over unto the said trustees their executors administrators and assigns A II [describe the property~\ and all and every the stock in trade goods wares merchandizes household furniture fixtures plate linen china books of account debts sum and sums of money and all securities for money vouchers and other documents and writings and all other the personal estate and effects whatsoever and wheresoever of the said {D.) in possession reversion re- mainder or expectancy together with fiill and free possession right and title of entry in to and upon all and every of the messuages or tenements and premises wherein the said several effects and premises now are To have and to hold the said stock in trade and all other the estate effects and premises hereby assigned or intended so to be unto the said trustees their executors admi- COMPOSITION. 617 nistrators and assigns absolutely Upon trust nevertheless to col- No. CCC lect and receive or sell and dispose of the said hereby assigned ^'""■' ^"'V"- '., ,,. , r ""'"' in Trust premises and every part thereof either by juiblic sale or private /or Creditors. contract and in one or more lot or lots under such conditions of Zi^ ~~ 7. sale and for such prices as they shall think expedient and with liberty to buy in at any auction and to resell without being liable to any loss occasioned thereby and also to rescind or vary any contract for sale and with liberty to give any credit or to take any security for the purchase money or any part thereof as to the said trustees their executors or administrators shall seem proper And upon trust out of the monies to be received by To pay costs virtue of these presents to pay all costs and expenses of pro- posing preparing ingrossing and executing these presents and attending or relating to the said hereby assigned premises or the trusts hereby created And in the next place to pay retain and satisfy rateably and proportionably and without any preference or priority to themselves the said trustees and their ])artners and the other persons parties hereto of the third part who shall exe- cute these presents within from the date hereof the several debts or sums set opposite to their respective names in the said schedule hereto Subject to the covenant hereinafter contained for verifying the amounts thereof and to pay the residue (if any) of the said monies unto the said {D.) his exe- cutors administrators and assigns Provided nevertheless that such Creditors not creditors of the said {D.) as shall not execute or assent in writing excluded!' to take the benefit of these presents on or before the day of next or within such further time not exceeding thirty days as the said trustees shall by writing under their respective hands and seals declare shall be excluded from all benefit under these presents Provided always That it shall be lawful for the said Allowance to trustees [to make to the said (Z>.) such allowance or return to him such part of his household furniture working tools or effects not exceeding the value of £ as they may deem ex- pedient And also (a)] to employ the said (D.) or any other person or persons in winding up the affairs of the said (D.) and in collecting and getting in his estate and effects hereby assigned and in carrying on his trade if thought expedient by them and to allow the said (J^.) or any other person or persons so employed as aforesaid out of the said trust estate such sum and sums as to the said trustees shall seem proper And the said {JD.) JJoth hereby make constitute and a])p()int Power of attorney. (a) As to the words within brackets, see ante, p. 093. 618 COMPOSITION. No. CCC. Short ^ssign- 7nent in Trust for Creditors. Receipts. Amount of debts to be verified. Powers given to trustees. the said trustees and the survivors and survivor of them and the executors and administrators of such survivor to be his true and lawful attornies or attorney to ask demand sue for recover and receive all debts and sums of money owing to the said (Z>.) and all other the premises hereby assigned or in- tended so to be and on payment or delivery thereof or of any part thereof respectively to sign seal and execute receipts ac- quittances or other discharges for the same respectively and on nonpayment or nondehvery thereof respectively to commence and prosecute any action suit or other proceedings whatsoever for recovering and compelling the delivery or payment thereof respectively And also to adjust hquidate and finally settle all accounts dealings and transactions whatsoever relating to the said trust estate and premises and for all or any of the purposes aforesaid to use the name of the said (-D.) and whatsoever the said attornies or attorney shall lawfully do or cause to be done in the premises the said {D.) doth hereby for himself his heirs exe- cutors and administrators covenant with the said trustees their executors administrators and assigns to allow ratify and confirm Provided always and it is hereby agreed and declared that every receipt of the said trustees or trustee for the time being for any money payable to them or him by virtue of these presents shall effectually discharge the persons paying the same from being obliged to see to the application thereof or from being an- swerable or accountable for the misapplication or nonapplication thereof Provided also and it is hereby further covenanted and agreed by and between the said several parties hereto that it shall be lawful for the said trustees at the expense of the trust estate to require the amount of any debt or debts of any or either of the several creditors parties hereto to be verified by solemn statutory declaration or in such other manner as to the said trustees shall seem expedient and in the event of any such creditor or creditors refusing or faiUng so to verify his or their debt or debts then such creditor or creditors so refusing or failing as aforesaid shall lose all benefit dividends and advantaoe to be derived from or otherwise claimed under these presents anything herein contained to the contrary not- withstanding And thereupon the said trustees are hereby authorized and empowered to pay such last mentioned divi- dends or dividend unto the said {D.) his executors adminis- trators or assigns And the said trustees are authorized and empowered to pay or make such arrangements with the creditors whose debts are under £ as they the said trustees may COMPOSITION. 619 deem expedient Provided also and it is hereby declared and No. CCC. agreed that any resolution sijined by the majority in number '^'""■' -^w>"- j I r 1 T -1 1 11 1 1 • T 11 """' '" Trust and value or the creditors parties hereto shall be binding on all for Creditors. the several parties hereto and shall be eliectual for the allowance ' ~ and parsing of the accounts of the said trustees and for dis- charging them from the trusts hereof and from all claims and demands in respect thereof And that all questions relating to the said trust estate shall be decided accordino- to Endish Bank- rupt Law And further That the said trustees shall not be Trustees not to 11. answerable for the acts or receipts of each other or for any loss ^ ^^^^^^a e. or damage which may happen in the execution of the aforesaid trusts without their own respective wilful default and that when- ever the funds arising from the said trust estate shall amount to £ or upwards the same shall be paid to Messrs. & Co. bankers in the names of the said trustees and the cheques or orders for drawing out the said money or any part thereof shall be signed by two at least of the said trustees And this Release by Indenture lastly witnessefh That in consideration of the premises and of the assignment hereinbefore contained the said several creditors parties hereto of the second and third parts subject to the proviso next hereinafter contained Do and each of them doth acquit release and for ever discharge the said {!).) of and from all and all manner of debt and debts sum and sums of money bills bonds notes accounts reckonings judgments executions actions suits claims and demands whatsoever which they the said re- leasing parties or any or either of them their or any or either of their partner or partners now have or hereafter may have against the said {D.) his executors or administrators for or in respect of any debt transaction matter or thing up to the day of the date hereof Provided always and it is hereby expressly declared and Remedy agreed that the said release or releases to the said iD.) shall not •'g-i'''^' sureties » ^ ' preserved. extend or be deemed or construed to extend to any bill or bills of exchange or other security or securities which the said creditors or any of them now hold for securing their respective debts from the said (jO.) jointly with any other person or persons whom- soever but that such release and releases respectively shall merely extend to the said {!).) and not to any other person or persons and that such bill or bills of exchange security or securities shall remain valid and effectual in the law anything herein con- tained to the contrary notwithstanding Provided also and it is Release to be hereby expressly declared and agreed that in case the said (Z>.) ^■""' '" certam liath concealed or kept back any part of his estate and ellccts cases. 620 COMPOSITION. No. CCC. Short Assign- ment in Trust for Creditors. to the value of twenty pounds (except the linen and wearing apparel of himself and his wife and family) then the release here- inbefore contained shall be void and of no effect In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. The Schedule above referred to. Creditors' Signatures. Seals. Amount of Debt. CONDITIONS. 1 . Definition of a Condition. 2. Conditions precedent. Conditions subsequent. 3. Conditions by Deed. 4. Operative Words. Definition. Conditions pre- cedent. Conditions subsequent. Conditions by deed. Operative words. Sect. 1. A condition is a quality annexed to an estate, right or interest, by which the same is created, enlarged or defeated upon the happening of an uncertain event, Shepp. Touch. 117. 2. Conditions are either precedent or subsequent. Where the con- dition must be performed before the estate can commence, it is a con- dition precedent ; as if an estate be limited to A. upon condition that he marry B., the marriage is a condition precedent, and until that happens, no estate vests in A. ; but where the effect of a condition is to defeat an estate already commenced, it is a condition subsequent ; as where a lease is made on condition that the lessee shall pay to the lessor on such a day a certain sum, — here the condition is subsequent, and following the estate, and the performance tliereof continues and preserves the same. 3. An express condition cannot be annexed to an estate but by deed. For the most part, conditions are either inserted in or indorsed upon the instrument creating the estate or interest. But where the terms are inserted in a separate instrument, it is called a defeasance, see Defeasances. 4. The most apt words wherewith to make a condition in a deed are, "provided always," "nevertheless," "and these presents are upon this express condition, &c. that if, &c. j" but other words will CONDITIONS. have the same effect,'as " proviso," " it is provided and agreed," &c., Shepp. Touch. 117. As to the form of a condition in bonds, see Bonds, ante, p. 496, pi. 8 ; and as to the distinction between a con- dition and a covenant, see post, Covenants. Conditions in Deeds — see Index to Precedents. CONDITIONS OF SALE. 1. Particulars and Conditions of Sale the Basis of the Contract. 2. Evidence of the Contract. Sale of Real Property. Sale of Goods. 3. Accuracy of the Conditions. 4. Construction of the Conditions. Meaning of the word " Rent." Object of Special Conditions. Compensation Clause. No Protection against Fraud. In case of unintentional Errors. Compensation in Equity. Construed in favour of Pur- chaser. 5. Waiver of Conditions, Sfc. 6. What Stipulations ought to be in- serted in the Conditions. 7. Condition as to Biddings. Biddings for Seller. 8. Conditions as to Title. As to Title Deeds. As to production of Lessor^ s Title. Sale of Leaseholds held under one Lease in Lots. 9 Purchaser of Leaseholds bound by Covenants in Lease, when. Sale of an Underlease. Purchaser of Freehold bound to indemnify against Covenant. As to Time of making out Title • and coynpleiing Contract. Time of the Essence of the Con- tract. Months in the Computation to be Lunar or Calendar. Rule in Equity as to Time. 10. As to Title under an Exchange. ] 1. Conditim as to Conveyances. Condition as to Timber. Condition as to Fixtures. Condition as to Forfeiture of Deposit and Resale. Provision for Payment of In- terest on Purchase-money if completion of Purchase be de- layed. Conditions on Sales by Trustees or Mortgagees. Preparation of. 12, 13. 14 15 16 Sect. 1. Particulars of sale, together with the conditions of sale, Particulars and form the basis of the contract for a sale bv auction ; the former de- co'i'lii'ons ot scribing the property that is to be sold, and the latter the terms on the contract, which it is to be sold. The terms of a contract for a sale by auction are in many respects the same as when the sale is by private contract, see Agreements {ante, pp. 156—173), but there are some addi- tional matters to be considered tiiat are peculiar to that mode of sale. 622 CONDITIONS OF SALE, Conditions of 2. On sales of real property the conditions are usually made part of ■^"^^- the contract by an agreement in vvriling duly signed by the purchaser Evidence of or his agent; but in order to make the conditions evidence of thfe the contract. contract within the Statute of Fi-auds, it is necessary that there should Sale of real ^^ g^ reference to them : an entry therefore by an auctioneer, not re- proper y. fen-ing to the conditions or particulars of sale, will not be sufficient, JRamsbottom v. Tunhridge, 2 M. & S. 434. See ante, Auctions, pp. 433—445. Sale of goods. On the sale of goods, the conditions of sale annexed to the cata- logue will evidence the terms of the contract; but they must be annexed or plainly referred to, or they will not be a sufficient memo- randum to satisfy the 17th section of the Statute of Frauds, Ken- ■n-orihy v. Schofielcl, 2 B. & C. 945 ; and the bare reading the conditions before the sale will not supply the defect, ih. ; but the pasting up the conditions of sale on the auctioneer's box, as is usually done, has been held to be a sufficient notice to the buyer, Mesnard v. Aldridfje, 3 Esp. 271. Accuracy of the 3. Accuracy is as necessary in framing the conditions as in drawing conditions. ^p ^j^g particulars of sale; for when they are reduced into writing, they cannot be varied or explained by any verbal declaration made by the auctioneer at the time of the sale; not even where a party has ao-reed to be bound by the conditions and such declarations made at the sale, Higyinson v. Clowes, 15 Ves. 505 ; and this rule prevails in equity as at law, Jenhinson v. Pepys, cited 6 Ves. 330 ; Buckmaster V. Harrop, 13 Ves. 471 ; as well in favour of the seller as the buyer, Powell V. Edmunds, 12 East, 6 ; and to a sub-sale as to ari original sale, as where A. bought at a sale, after a verbal explanation given at the time, and then resold to B., who heard the explanation, this was held to be no more binding on B. than A., and therefore A. could not enforce the contract against B., Shelton v. Livius, 2 Cr. & J. 411 • S. C,2 Tyr. 420; but it seems that if a purchaser had notice of a mistake before the sale, such notice might be given in evidence against him, Gunnis v. Erhurt, 1 H. Bl. 289 ; Ogilvie v. Foljamhe, 3 Mer. 53; so it may be proved that the purchaser perused the ori- o-inal lease before the sale, Bradshawv. Bennett, 5 C. & P. 48 ; and the particulars and conditions may be altered before the sale, Fife v. Clayton, 13 Ves. 546. Fraud, mistake or surprise are respectively grounds for receiving parol evidence in defence to a bill for specific performance, but where none of these circumstances exist evidence cannot be offered to contradict, explain or vary the written contract, 3Ianser v. Bach, 6 Hare, 443. Construction of 4. It is said that the judges, in construing conditions of sale, will the conditions, endeavour to collect the meaning of the parties without incumbering themselves with the technical meaning of words ; as where the City of London let an estate by auction, and by one of the conditions it was stipulated that the purchaser should pay a certain rent before the CONDITIONS OF SALE. 623 lease was granted ; this word "rent," thoufjh properly applying; only Conditions of where the relation of landlord and tenant had commenced, was held Sale^ to be a sum of money which should be paid, Ci/i/ of London v. Dias, Meaning of the Woodfall's L. & T. by Harrison and Wollaston,' 301, 4th ed. ''"''^ " ""*•" The province of a special condition is to make known to the pur- Object of spe- chaser that he will not get that which but for the condition he would '^'"'^ conditions. be entitled to. A purchaser must take subject to that which is peculiar to and necessarily incident to the estate. Thus where a con- tract is entered into to sell a freehold, and nothing is said about the minerals, if the purchaser finds that the minerals are reserved, the title is bad, and he cannot be compelled to take it. But if, on a sale of copyholds, nothing is said as to minerals, a purchaser cannot object that the title is bad, because he cannot touch the minerals except with the consent of the lord of the manor, Mai/ ford v. Criddle, 22 Beav. 480. See Le Grand v. Whitehead, 1 Russ. 309; Crosse v. Law- rence. 9 Hare, 4G2; 16 Jur. 142; 21 L. J., Chan. 889. The court has sometimes difficulty in dealing with special conditions of sale. On the one hand it was hard to say that parties should not enter into contracts suited to their convenience and to the exigency of their titles, but, on the other hand, conditions of sale were sometimes of such a nature that it was scarcely practicable to cai-ry them into execution, consistently with the settled principles of courts of equity, Hyde v. Dallaway, 4 Beav. 608. The most important stipulation in conditions of sale is that by Compensation which vendors endeavour to protect themselves against any misde- clause, scription, declaring that it shall not annul the sale, but that compen- sation shall be given, — a clause which is, however, no protection No protection against fraudulent errors, No rfalh (Duhe) v. Worthy, 1 Campb. 337 ; "gainst fraud. and so on a sale of goods, where a ship was sold " with all faults," the vendor was held bound to disclose a latent defect, known to him- self, which it was impossible for the purchaser to discover, Mcllish v. Motteux, 1 Peake, 115; recognized in Schneider y. Heath, 3 Campb. 506 ; but it has since been decided that if the vendor used no means to conceal the defect, he might avail himself of the stipulation, Ihujle- hole V. Walters, 3 C'dmph. 154. Where the error is unintentional, Incaseofunin- tliere appears to be "no definite rule to be drawn from the decided tentional errors, cases which should determine what misstatement or misdescription in the particulars should justify a rescinding the contract, and what HJiould be the ground of compensation only," j/er Tindal, C. J., Flirjht V. Booth, 1 Bing. N. C. 370 ; S. C. 1 Scott, 190. In Writjht V. Wilson, 1 Mood. &. Rob. 207, it was held that, in the absence of fraud, however gross the negligence of the vendors, the purchaser must be bound by having bought an estate without looking at it ; and in 3IiUH v. Oddy, C. & P. 728, where the description materially affected the value, it was held that, unless the jury thought the mis- 624 CONDITIONS OF SALE. Conditions of Sale. Compensation in equity. Construed in favour of pur- chaser. description was wilful, a purchaser was not at liberty to rescind the contract. The better opinion, however, appears to be, " that where there is a pure mistake not prejudicing the purchaser, it is cured by the condition," per Best, C. J., Leach v. Midlett, 3 C. & P. 115. But where the misdescription is so material as not to be a subject of compensation, the purchaser shall be at liberty to rescind the contract altogether, as where the description was of other property than that intended to be sold, Robinson v. Blusfjrove, 2 Mood. & Rob. 92 : so where, on the sale of a lease, part of the propei-ty described, which was an essential part, was not included in the lease, but was held from year to year, Dohell v. Hutchinson, 3 Ad. & Ell. 355 : so where a lease described as containing a restriction against carrying on any offensive trades, contained also a restriction against carrying on some trades not commonly included under the term " offensive trades," Flight V. Booth, uU sup. : so where, from the nature of the case, there can be no estimate made of the diminution of the value, Sher- wood V. Robins, 1 Mood. & Malk. 194; S. C. 3 C. & P. 339 ; and in one case, where on the sale of a manor by trustees the fines were described as arbitrary, which were so on alienation only, this was held not to be such a description as entitled the purchaser to any compen- sation. White V. Cuddon, 6 Jur. 471, H. L. As to the condition about misdescriptions, see a?ite, pp. 442—444; Sugd. V. & P. Ch. I. Sect. 3. A coui-t of equity will enforce a sale with a compensation for a slight unintentional error, although there be no such condition ; and will not assist the seller where there is such a condition, if the mis- description is of importance ; therefore the bare omission to enumerate the taxes which the tenant had to pay was held not to entitle the pur- chaser to compensation, Townsend {Lord) v. Granger, cited 2 Sim. 436 ; on the other hand, where a house was described as a " brick- built dwelling-house," which proved to be built partly of brick and partly of timber, and some parts of the exterior were only lath and plaster,— the court held this not to be a subject for compensation, Powell V. Donbble, MS., cited 1 Sugd. V. & P. 52, 10th ed., 30, 11th ed. And in an earlier case, where a lease at rack-rent was de- scribed as a lease at a ground-rent, the court refused to decree a specific performance, holding the doctrine of compensation not to be applicable to cases of that description, Stewart \. Alliston, 1 Mer.26. And it seems to be now settled that a court of equity will construe conditions of sale strictly in favour of a purchaser; and if a vendor wishes to preclude him from evidence which, under ordinary circum- stances, he would be entitled to as a matter of common right, he must express himself in terms most clear and unambiguous, Symons v. James, 6 Jur. 452, V. C. K. B. Osborne v. Harvey, 7 Jur. 229. Whenever a purchaser is to be limited as to his rights respecting the title by some special condition, that condition ought to be expressed CONDITIONS OF SALE. 625 in such language as to show distinctly to Avhat extent he is to be Conditions of affected, Cruse v. Kon-ell, 25 Law J., Ch. 709. Per K., V. C. ^''- A vendor has duties inseparable from that character which he is bound to perform and cannot avoid by restrictive conditions of sale. A vendor is not justified in rescinding a contract under a restrictive condition of sale, reserving that power where he has not answered the purchaser's requisitions or made an attempt to answer the objections to the title, Greaves v. Wilson, 27 Law J., Ch. 546. See Page v. Adam, 4 Beav. 269, post, p. 649, n. Special conditions of sale are construed most strictly against the vendor. Hoy v. Smi/the, 22 Beav. 510; 2 Jur., N. S. 1011. 5. Where there is an agreement for the sale of real property, with Waiver of con- a stipulation that if the residue of the purchase-money is not paid by ^^^^°^^' ^'^• a certain day, the agreement should be void, and the vendors shall have power to resell, it was held that the money not being paid, and the purchaser continuing in possession and giving a wairant of attorney to confess judgment, was a waiver of the stipulation, Ex parte Gard- ner in re Eastern Counties Railway Company, 4 Y. & C. 503. So a parol waiver of a written agreement relating to an interest in land is void, as being in contravention of the Statute of Frauds, Stoivell v. Hobinson, 5 Scott, 296; so a purchaser, after long possession, was held to have waived his right to an investigation of the title, Hall v. Laver, 3 Y. & C. 291. 6. Much discretion. is called for in the framing conditions of sale What stipula- according to the nature of the property to be sold, so that thev should f'°"* ought to • ,, • 1 • ,•!,■ . ,. •^, be inserted in contam all necessary stipulations as to biddmgs, rescindmg the con- the conditions. tract, title, taking timber at a valuation, fixtures, and deposit — all of which have been more or less the subject of judicial decision. 7. It is a usual stipulation that " No bidding once made shall be Condition as to retracted," it having been decided that the bidder at an auction misrht {^"l''"'?*^ "«' to be retractcu. countermand his bidding at any time before the lot was actually knocked down, Payne v. Cave, 3 T. R. 148; Routledtje v. Grant, 4 Bing. 653; ante, p. 435. As to goods, see Phillips v. Bistolli, 3 Dowl. & Ry. 822. As all pufling at auctions is illegal, and the right of any bidding biddings for being made on behalf of the seller has been much questioned, unless '*'^"^'■• notice of it be previously given, the only prudent course, where the seller finds it necessary to protect himself in that way, is to make it a condition of the sale that the purchaser shall be at liberty to bid once. See ante, pp. 435, 439. 8. In the absence of stipulation, the vendor is bound to make a Conditions as good title to the property sold ; but particular stipulations are not- *° *"''^* withstanding necessary. First, as to the title deeds. Where the seller Title deeds, wishes to protect himself against the production of deeds not in his possession, he must do so in explicit terms; therefore, where the con- VOL. I. s s 626 CONDITIONS OF SALE. Conditions of Sale. Production of lessor's title. Sale of lease- holds held under one lease in lots. dition was, " that he should not be bound to produce any original deed or other documents than those in his possession, and set forth in the abstract," this was held not to restrict his liability to produce them for the purpose of making out the title, Soutlihy v. Uutt, 2 My. & Cr. 207, ante, p. 5 : so as to the expenses of searches, attested copies, and other matters connected with the making out the title, special provision ought to be made where it is not intended that they should fall on the vendor. Dare v. Tucker, 6 Ves. 460; recognized in Songhton v. Jervcl, 15 Ves. 176. In the case of leaseholds, the vendor will be bound to produce the title of his lessor, unless it be expressly stipulated to the con- trary in the conditions; and an auctioneer omitting to make it a part of his conditions cannot recover his commission, Denew v. Da- verell, 3 Campb. 451 ; but this stipulation, as it seems, will not pre- vent the purchaser from looking into the lease, if he can get access to it, and proving it to be defective, so as to vacate the contract, Shep- herd V. Keatley, 1 Cr. M. & R. 117 ; >S. C. 4 Tyr. 571, overruhng Spratt V. Jeffrey, 10 B. & C 249; and see Souter v. Drake, 5 B. & Ad. 992. See ante, pp. 3—5, 20. A purchaser of a bishop's lease cannot call for the lessor's title, Fane v. Spencer, 2 Madd. 438 ; 2 Mer. 430 n ; and the same principle is applied in practice to the lease of any other corporation which demises by virtue of the disabling statutes, and although the rule does not apply to a lease under a corporation unaffected by the disabling statutes, Purvis v. Rayer, 9 Price, 488, it is not ordinarily the practice to require in such cases the production of the title of any corporation, 1 Davidson's Conv. 478, 2nd ed. Many inconveniences arise from the purchase of the leasehold interest of one of several houses held under the same lease ; for if the lease, as is to be expected, contains covenants affecting the whole, and there be a proviso, that on breach of any covenant the landlord is to have a right to re-enter, it is evident that the purchaser of one lot may be evicted without any default of his own, but solely of another person. It is certainly a very inconvenient state of circumstances ; and the question, whether a purchaser is to be compelled to complete his purchase, depends on the nature of the contract, what he agreed to buy and under what circumstances. On the sale of leaseholds in lots, it is generally necessary to make some provision for securing to each purchaser the due payment of the entire rent and the perform- ance of the covenants in the original lease. In some cases, cross powers of distress and entry are given to the several purchasers over each other's lots, with a covenant from each purchaser to pay his proportion of the rent and to observe the covenants, see ante, pp. 288—291. In some cases, the original lease is assigned to the pur- chaser of the largest lot in value, who grants underleases of the other lots to the respective purchasers. CONDITIONS OF SALE. 627 A leasehold estate, consistinjr of two houses, held under the same Conditions of lease and subject to a orround rent of 8Z., was advertised to be sold in 'Lll two lots ; the particulars of sale stating the fact, that they were held under one lease and that the ground rent was to be equally appor- tioned. And by the eighth condition of sale it was stipulated, that if the lots should be bought by different persons, they should enter into mutual covenants to indemnify each other against more than the apportioned share of the ground rent. Nothing was said as to the special covenants contained in the lease, but the lease was inspected by the solicitor of the purchaser of Lot 2 at the sale ; it was held, that the purchaser of Lot 2 could not object to perform the contract, on the ground that he was liable to eviction by reason of a breach of covenant by the purchaser of Lot 1 with respect to the special covenants, as to which no provision was made in the conditions of sale, Paterson v. Long, 7 Jur. 1049 ; 6 Beav. 590. A purchaser of leaseholds has notice of what it is he purports to Purchaser of buy, and he will be bound by all the covenants in the lease ; but one 5,'];uf,I)"Jy''co. who contracts for a lease from a party with knowledge that he holds venants in under a leasehold title, has notice of ordinary but not of unusual ^®^^®' ^^'^"• covenants in the original lease. Covenants in restraint of trade in a tradino- locality are not considered usual covenants, Wilbraham V. Live^ey, 18 Beav. 206; Flhjht v. Barton, 3 My. & K. 282. But a purchaser who enters and takes possession of the property will be bound even by unusual covenants, as where the original lease containing unusual covenants w^s produced to his solicitor for inspection before the contract who did or might have inspected them, the purchaser was held to have purchased with notice of such cove- nants, Cosser V. Collinge, 3 My. & K. 283. On the purchase of an underlease, it is not a valid objection to the Sale of an title that the underlease may become forfeited by the non-performance underlease, of the covenants in the original lease, for such liability is incidental to every underlease, and which must be known to the purchaser. A contract to assign a lease is not satisfied by granting or assigning an underlease, Hayford v. Crkldle, 22 Beav. 477. Where the property offered for sale is held by an underlease, that fact should ajipcar in the particula)-s or in the conditions of sale. Where property was sold as a lease for ninety-nine years, which was afterwards discovered to be held by an underlease for a term of ninety-nine years wanting three days, the court refused a specific performance, Madeley v. Booth, 2 De G. & Sm. 718. See DarUntjton v. JIamilton, 1 Kay, 550. A. paid a deposit upon a contract for the purchase of the lease, &c. of a public-house. It being afterwards discovered that the house was comprised with another in an original lease, under which the lessor had a right to re-enter for a breach of covenants in respect of cither house ; it was held, that A. was not bound to accept the title with an ss2 628 CONDITIONS OF SALE. Conditions of Sale. Purchaser of freehold bound to indemnify against cove- nant. Time of making out title and completing contract. Time of the essence of the contract. indemnity, but might recover back the deposit with the expenses incurred in investigating the title, Blake v. Phimi, 3 C. B. 976. See Law V. Urlwiriy 16 Sim. 377. Leasehold property was sold subject to a condition that possession under the lease should be deemed conclusive evidence of the due per- formance or sufficient waiver of any breach of the covenants in the lease up to the completion of the sale. A covenant to keep the premises insured was broken on two occasions, one before and one subsequently to the sale ; it was held, that the condition precluded any objection, on the ground of the former breach of covenant but not of the latter, and that the purchaser was not bound to take the title, Howell v. Kiyhtley, 21 Beav. 331 ; 2 Jur., N. S. 455 j 22 L. J., Ch. 868. A vendor of freehold property, who, on his own purchase of it, had entered into a covenant to observe the covenants entered into with a former vendor, and which prohibited building on the land, put it up for sale, pursuant to particulars and conditions, noticing the existence of the covenant, but not stipulating that the purchaser should enter into any covenant on the subject. On a bill for specific performance filed by the purchaser ; it was held, that the purchaser was not entitled to a conveyance, unless on the terms of giving or providing for the vendor a sufficient indemnity against any breach of the covenant on the part of the purchaser, his heirs, appointees, or assigns, Moxhay v. Inderviick, 1 De G. & Sm. 708. It was held, also, that a covenant on the part of the purchaser, his heirs, executors, administrators, appointees, and assigns, with the vendoi-, his heirs, executors, and administrators, to the same effect, mutatis mutandis, as the covenant entered into by the vendor on his own purchase, ought to be considered as a sufficient indemnity, lb. 9. At law the time of making out the title is deemed of the essence of the contract ; therefore, on the sale of real property, the vendor must be prepared to make out a good title on the day when a purchase is to be completed, Cornish v. Rowley, cited Selw. N. P. lOth ed. ; but in an action by a purchaser against a vendor for not making out a wood title, where it was shown that no time was fixed for that purpose, it was held, that it should have been alleged in the declara- tion that a reasonable time had been allowed to the vendor, Sansom V. Rhodes, 6 Bing. N. C. 261. On the sale of goods, if the buyer neglect to remove the goods within a reasonable time, the seller may either charge him with warehouse rent or bring an action for the special damage, Greaves v. Ashlin, 3 Campb. 426 ; see also 3Iertens V. Adcock, 4 Esp. 251 ; so where the time is fixed in the conditions for the removal of the goods by the buyer, this stipulation is held to be made for the buyer, and therefore the seller must always be ready to deliver the goods on demand, Hacjedon or Maydorne v. Laing, 6 CONDITIONS OF SALE. 629 Taunt. 162 ; S. C. 1 Marsh. 514. Where, as is usual on the sale of Conditions of real property, the time for delivering the abstract of title, for the ^^ return of the abstract, for delivering draft of conveyance and com- Months in the pletiui^ the purchase, is limited in the conditions to any certain number computation to J, "^ . , , ,. "G lunar or of months, this word "month' may mean lunar or calendar, accordmg calendar. to the intention of the contracting parties, La7ig v. Gale, 1 M. & S. Ill ; and the delivery of the draft of conveyance to the purchaser is a condition precedent, lb. Though time may in equity be made of the essence of the con- Rule in equity tract, yet the strict performance of it may be waived under particular ^^ '° ''""^" circumstances, Hudson v. Bartram, 3 Madd. 495 ; see also Greg- son V. Riddle, cited 7 Ves. 268 ; Seton v. Slade, 7 Ves. 265 ; there- fore, where it was stipulated in the conditions that all objections to a title were to be taken within twenty-one days from the delivery of the abstract, or be deemed waived, and time was in that respect to be con- sidered of the essence of the contract ; it was held, that the twenty-one days did not begin to run until a perfect abstract had been delivered, Glynn v. Bell, 2 Beav. 17 ; but where time is not expressly made of the essence of the contract, and there is unnecessary delay by one of the parties, the other has a right, by notice, to limit the time for com- pleting the contract ; and upon default, to abandon the same, Taylor V. Brown, 2 Beav. 180. 10. Conditions of sale describing a title to premises as arising Title under an under an exchange, by virtue of an award of commissioners under an exchange. Inclosure Act, are satisfied by showing a title by award in respect of other lands and of common rights, without showing the further parti- culars of the exchange ; and if the vendor contracts to commence his title with the award, the purchaser has no right to inquire into the title of the lands given by the vendor in exchange for the lands con- tracted to be sold, Cattellv. Corrall, 4 Y. & C. 228. See ante, p. 17. 11. The expense of conveyances will fall on the purchaser, unless Condition as to there is an express stipulation to the contrary. conveyances. 12. Where timber and other trees are to be taken by the purchaser Condition as to at a valuation, the conditions should particularly specify what trees ^'•"'^e'"' shall be paid for as timber, the custom of the country making some trees timber which in their nature are not so, Ckundos {Duhe) v. Talbot, 2 P. Wms. 601 ; so where an estate was sold in several lots, and as to two of the lots the conditions stated that the timber was to be taken at a valuation, but the same condition was not annexed to the other lots, although there was a general condition "that all tim- ber and timberlike trees, down to \s. per stick inclusive, should be taken at a fair valuation ;" yet the piwchaser of the lots to which the condition was not annexed was held not bound to pay for the timber, Hhjgenxon v. Clowes, 15 Ves. 516. See Sugd. V. & P. pp. 36, 37, 11th edit. Lord Brooke v. Rounthwaite, 5 Hare, 298. 630 CONDITIONS OF SALE. Conditions of Sale, Condition as to fixtures. Condition as to forfeiture of deposit and re- sale. Provision for payment of in- terest on pur- cliase money if completion be delayed. 13. In the absence of stipulation, fixtures will pass with the con- veyance of a freehold house, Colegrave v. Dias Santos, 2 B. & C. 76, and see Hitchman v. Walton, 4 M. & W. 409. It is usual to stipulate that the fixtures shall be taken at a valuation ; and where this was omitted to be done, and the purchaser had taken possession, it was held, that the vendor could not maintain trover for them, Colegrave v. Dias Santos, ub. sup. See Sugd. V. & P. p. 37, 11th ed. 14. The usual condition, that, on default of the purchaser, the de- posit shall be forfeited, and the estate resold, ought not to be omitted. By virtue of this stipulation, the vendor may resell the property, and recover the loss and charges from the purchaser, see 3Iertens v. Ad- cock, 4 Esp. 251, questioned in Hagedorn v. Laing, 6 Taunt. 514; also Ex parte Hunter, 6 Ves. 94. Where the condition is, that the deposit shall be forfeited as liquidated damages, this was held to apply to the breach of any particular condition ; and that, where the party wrongfully abandoned the contract altogether, the vendor might recover damages ultra the forfeited deposit, Icely v. Grew, 6 Nev. & Man. 467 ; and where a purchaser became bankrupt after a breach of the condition, it was held, that the seller might prove the loss on a resale under the commission, Ex parte Hunter, 6 Ves. 94. See Sugd. V. & P. pp. 40 — 42, 11th ed. ; Ochenden v. Henly, 4 Jur., N. S. 999; 27L. J., Q. B. 361. 15. A condition that if " from any cause whatever the purchase shall not be completed on a day named, the purchaser shall pay interest on the purchase money," is inoperative where a good title has not been shown by the default of the vendor within the time stipu- lated; but it is operative where it is the result of accident, or of something which could not have been guarded against by the vendoi", Sherwin v. Shakspear, 17 Beav. 267 ; De Visme v. De Visme, 1 Hall & T. 408 ; 1 Mac. & G. 336 ; Rowley v. Adams, 12 Beav. 476; Robertson v. Skelton, 12 Beav. 363. See Sugd. V. & P. Ch. XVI. s. 1. A vendor cannot take advantage of his own wrong, and, by reason of it, obtain an advantage to which he would not otherwise be en- titled. If the delay in the completion of the title be the result of gross negligence, or if the difiiculty in the title is such that the ven- dor, if he minded, might have remedied it, he shall not, by reason of his negligence, obtain a larger amount of interest from the purchaser than he w^ould otherwise have been entitled to, Shermin v. Shakspear, 17 Beav. 267. Conditions of sale provided that the purchase should be completed on a given day, and that if from any cause whatever the purchase should not be completed, the purchaser should pay interest from that time till the day of completion. The title was accepted and the CONDITIONS OF SALE. 631 deeds prepared and tendered some time before the day fixed. Two Conditions (/ days before the time tlic vendor died, havinij devised her estates to _^^_Hl_ . an infant, which rendered a suit necessary to obtain completion, and delay was occasioned. After filing the bill, the purchaser paid his money into court to the general credit of the cause : it was held, that the death of the vendor was an event within the contemplation of the parties, and the purchaser was liable to pay interest ; that the pay- ment into court was not a payment to the purchaser ; and that there being no fault in either party, the decree must be without costs, Baimennan v. Clark, 3 Drew. 632; 26 L. J,, Chanc. 77. One of the conditions of an attempted sale by auction under a decree provided that the purchase should be completed on a day named, and that if, from any cause whatever, the purchase-money should not then be paid, interest should be paid from that date. The purchase was by private contract, subject to the conditions of sale, and also subject to the purchase being approved by the court. The purchase-money was a fund in court, and, after a long delay, the con- veyancing counsel approved of the title for the purchasers : it was held, that neither party being to blame for the delay, the purchasers could not be relieved from their obligation to pay interest, Stervart v. Lawson, 3 Sm. & G. 307. If a vendor delivers an abstract deducing a title by certain deeds, and documents specifying their titles, dates and contents, the verifi- cation of the abstract with those deeds and documents is a mere question of evidence, and the title is made out by the abstract as delivered. But where there are facts alleged in the abstract, for in- stance, the identity of persons or of parcels, which require evidence either oral or documentary to prove them, which evidence is not pro- duced, the production of the evidence necessary to prove such facts constitutes a question of title, Sherwin v. Shakspear, 17 Beav. 275. 16. Trustees or mortgagees with trusts or powers for sale ought to Conditions impose all necessarv and proper conditions, but ouirht not to im- "" ^'•''^'^ ^V . . ' . . trustees or pose any conditions which will reduce the value of the property or mort'ragees. involve a breach of trust, WUhmson v. Fri/, 1 Mer. 268. But strict conditions of sale, although somewhat unusual, will not on light gi'ounds be deemed of such a depreciatory character as to amount to a breach of trust or constitute an objection to the title, Uohson v. DtU, 2 Beav. 17 ; Levy v. Pcnderrjass, 2 Beav. 415. Trustees may stipulate that all objections to the title shall be taken within twenty-one days, and that if a vulnl objection be taken, they shall be at liberty lo rescind the contract on returning the deposit, Ilobson V. Bell, 2 Boav. 17. Where a trustee, without the power of giving receipts, stipulated that his receipt should be sufficient, mid that the purchaser should not require the concurrence of the parties beneficially interested, tlie court decreed a specific pcrfurriiancc, IVilkinnuu V. Ilarilcy, 15 Bciiv. \K\. 632 CONDITIONS OF SALE. Conditions of A mortgagee with power to sell, subject to special or other con- ditions of sale, is justified in selling under a condition, that in case any objection or requisition should be made, in respect of title or otherwise, which the vendor should be unwilling or unable to remove or satisfy, the vendors should be at liberty to rescind the sale, Falkner V. Equitable Reversionary/ Interest Society , 4 Jur., N. S. 1214, V. C. K. Preparation of. The preparation of conditions of sale is one of the most delicate and difficult tasks imposed on the draftsman, and can only be under- taken after a careful perusal of the abstract. The preceding observa- tions have specified most of the ordinary conditions required on the sale of property to which a perfectly good marketable title can be made, but in very many instances it will be necessary to provide by the conditions against objections which may be taken to the title by an unwilling purchaser; and at the same time great disci"etion is required lest the number and stringency of the conditions should alarm and deter intending purchasers. The subject of conditions of sale is fully discussed in 1 Davidson's Conv. pp. 439 — 541, 2nd ed,, and in 9 Byth. Conv., by Sweet, pp. 12 — 67, and in a supplement thereto by Sweet. Numerous forms of precedents of conditions of sale are also inserted in the above works. No. CCCl. Lands {Freehold). No. CCCI. Conditions of Sale of Freehold Lands. I. That the highest bidder shall be declared the purchaser and if any dispute shall arise as to the last or best bidder the estate shall be immediately put up again at the former bidding. II. No person shall advance at any one bidding less than £ or retract his or her bidding And the vendor by himself or his agent shall be at liberty to bid once for the pro- perty. III. The purchaser shall pay immediately after the sale to the auctioneer a deposit of £ per cent, in part of the pur- chase money and sign an agreement for the payment of the remainder on or before the day of 18 upon having a good title made to him All outgoings to be cleared to that time. IV. That within from the day of sale the vendor shall at his own expense prepare and deliver an abstract of his title to the purchaser or his solicitor and shall deduce a good title. V. The purchaser shall have a proper conveyance at his CONDITIONS OF SALE. 60Q own expense on payment of the remainder of the purchase No. CCCI. money and possession (a) will be given on completion of the (^/;^"^Jj^^ purchase and the purchaser will be entitled to the rents and profits from the day of 18 but if from any cause the remainder of the purchase money shall not be paid on the • day of the purchaser shall pay interest for the same (as well as for the amount at which the timber shall be valued) at the rate of £ per cent, per annum from that day to the day of payment but nevertheless this stipulation to be without prejudice to the vendor's right to insist on the performance of the last condition. VI. The purchaser to take all timber and timberlike trees and pollards down to one shilling a stick and that inclusive of also the coppice and underwood by valuation such valuation to be made by tw^o proper persons (one to be appointed by the vendor and the other by the purchaser) or their umpire on or before the day of 1 8 and the amount paid on completing the purchase of the estate. VII. If any mistake be made in the description of the pro- perty or there be any other error in the particulars of sale the same shall not annul the sale but a compensation or equivalent shall be given or taken as the case may require according to the average of the whole purchase money (on such error or mis- statement being proved) such compensation or equivalent to be settled by two referees or their umpire— one referee to be chosen by each party within ten days after notice given of the error and the umpire to be chosen by the referees immediately after their appointment. VIII. Production of title deeds {See post, pp. 639, 656). Lastly. Upon failure of complying with the above conditions the deposit (ft) shall be forfeited and the vendor shall be at full liberty (with or without notice) to resell the estate by public (a) If it be the sale of an advowson, it will be proper to add, as a distinct condition, " If any vacancy shall happen in the church by the death or resignation of the present incumbent before the comj.letion of the purchase the right of nomi- nation shall belong to the purcliaser." If it be the sale of a reversion, add, as a distinct condition, " In case any loss or damage shiiU happen by fire or otherwise to the pre- mises or any increase in value shall accrue thereto by tlie decease of the tenant for life at any time before the comjjktion of tlio purciiase, tiie same shall not in anywise vacate or affect the present sale." {b) As to the forfeiture of the deposit, &c., see ante, Prcf. sect. 14, p. 030. 634 CONDITIONS OF SALE. No. CCCI. auction or private contract and if on such resale there should be {Freehold). ^^J deficiency the purchaser shall make good such deficiency ■ ~~ to the vendor and all expenses attending such resale the same to be recoverable as liquidated damages and it shall not be neces- sary previously to tender a conveyance to the purchaser. Agreement following and referring to Conditions of Sale. It is hereby declared and agreed by and between {Vendor) the vendor of the estate mentioned in the above particular and (Purchaser) that the said {P.) has become the purchaser of Lot 4 called as in the same particular described at the sum of £ And that the sum of £ has been paid down by the said {P.) to the said {V.) by way of deposit and in part of the said purchase money And that the said particulars and conditions of sale shall be taken as the terms of agreement for the said sale and purchase respectively and be observed and fulfilled by the said (V.) and (P.) respectively in all things As witness their hands this day of 18 Witness ( Vendor) {Purchase!-) Or, Memorandum that the messuages lands tenements and here- ditaments in the foregoing particular mentioned and referred to having been put up to sale by public auction under the terms and conditions above mentioned A. B. of (fcc. became the highest bidder for the premises comprised in the first lot for the sum of £. and for the premises comprised in the fourth lot for the sum of £ Now therefore the undersigned {Attorney) as attorney for and on behalf of the said (T^.) duly authorized and appointed doth hereby agree to sell and the said A. B. doth hereby agree to purchase the said first and fourth lots at the said sums &c. respectively under the terms and conditions aforesaid and at the same time the two several sums of £ and £ were paid by the said A. B. to the said {A.) as the deposit money for the said lots respectively Witness the hands of the said parties &c. CONDITIONS OF SALE. G35 Receipt at the Foot of Conditions of Sale. No. ccci. Obs. To be signed by the auctioneer and vendor, or his agent. (Fr"'iwh) Received of A. B. of &:c. (being the purchaser of the heredi- taments mentioned in the foregoing particulars of sale) the sum of £ as the deposit and in part of the purchase money or sum of £ for the said premises subject to the conditions of sale before stated Witness rav hand &c. Instead of the foregoing Agreements, the more common practice is to add the folloicing. Memorandum. I A. B. of &c. do hereby acknowledge to have this day become the purchaser of Lot described in the within [or foregoing] particulars of sale at and for the sum of £ and having paid into the hands of the auctioneer as stakeholder the sum of £ as a deposit and in part payment of the said purchase money I hereby agree to pay the remainder of the said purchase money and complete the said purchase according to the aforesaid conditions. {Purchaser). As agent for the vendor I ratify this sale"! and acknowledge the receipt of the said } {Auctioneer). deposit of £ * Memorandum of Sale hy Private Contract of Property unsold at the Auction. I A. B. of &c. hereby acknowledge that I have this day of purchased subject to the foregoing conditions so far as the same are applicable to a sale by private contract the pro- perty described in the foregoing particulars of sale [or " Lot of the property described in the foregoing particulars of sale "] at the price of £ and that I have paid the sum of £ by way of deposit and in part payment of the said purchase money to and I hereby agree to pay the remainder of the said purchase money and to coni[)lctc the said j)urchase uc- 636 CONDITIONS OF SALE. No.CCCI. Lands. {Freehold). cording to the aforesaid conditions so far as the same are applicable to a sale by private contract. {Purchaser). As agent for the vendor I ratify this sale^i and acknowledge the receipt of the said \ {Vendor s agent). deposit of £ >* No.CCCII. Freeholds and Leaseholds. Deposit, rents and inttrest. No. CCCII. Conditions of Sale of Freeholds and Leaseholds in Lots. I. The highest bidder for each lot shall be the purchaser thereof and if any dispute shall arise between two or more bidders the lot in dispute shall be immediately put up again. II. No person shall advance less at each bidding than the sum to be named by the auctioneer on the day and at the place of sale and no bidding shall be retracted. III. The purchaser of each lot shall immediately after the sale give in his or her name and place of abode and shall pay into the hands of the auctioneers a deposit of 20Z. per cent, in part of his or her purchase money and sign an agreement to pay the remainder thereof on the day of next, at the office of (the vendor's solicitor) No. Street in the county of Middlesex when and where the several purchases are to be completed and upon payment thereof the purchaser of Lot 4 shall be entitled to the possession of that lot from the said 6th day of July and the purchaser of Lot 1 shall be en- titled to the rents and profits of that lot as from the 24th day of June 185 up to which time all outgoings payable by the vendors in respect of Lots 1 and 4 shall be cleared or allowed by them and the purchaser or purchasers of Lots 2 and 3 shall from the 29th day of September next be entitled to the pos- session or to the rents and profits of those lots respectively but if from any cause whatever the purchase of any lot shall not be completed on or before the said 6th day of July next the purchaser of such lot shall pay to the vendors interest at the rate of 51. per cent, per annum on the unpaid balance of the purchase money from that day until the purchase shall be completed notwithstanding the purchase money or any part thereof may have been lying unemployed and notice thereof may have been given to the vendors or their solicitor but this CONDITIONS OF SALE. 637 provision is not to prevent the vendors from requiring tlie com- No. CCCII. pletion on the said 6th day of July next or as soon after as Freeholds and may be or to prevent them from exercising their rights under . the last condition. IV. The title to Lot 1 shall commence with the indenture of Commence- lease dated the 10th day of August 1818 under which the premises severafiots" '° comprised in that lot are held and the purchaser of that lot shall not require the lessor's title to be deduced and the pro- duction of the receipt for the last quarter's rent shall be taken and received by the purchaser as conclusive evidence that all the covenants and conditions contained in the lease have been duly observed and performed or of a waiver of all breaches of covenant if any up to the day of the completion of the purchase and the purchaser shall be deemed to have purchased with full knowledge of the contents of the indenture of lease which or a copy thereof may be inspected for seven days previous to the day of sale between the hours of ten o'clock in the forenoon and twelve o'clock at noon at the office of the said No. Street aforesaid and also in the sale room on the day of sale The title to Lots 2 and 3 shall commence with the will dated the 12th September 1812 of a testator who died in the month of October following And the title to Lot 4 shall commence with indentures of lease and appointment and release dated the 9th and 10th October 1813 whereby the premises comprised in that lot and other premises were ap- pointed to a purchaser in pursuance of a power And the purchaser or purchasers of the said Lots 2 3 and 4 respectively shall not require the earlier titles to those lots to be deduced or require any evidence of the seisin of the said testator of the said Lots 2 and 3 or require the production of or any copy or abstract of or extract from the deed or deeds by which the said power of appointment as to Lot 4 was created or of any deeds or instruments recited or mentioned in the said indentures of the 9th and 10th October 1813 with which the title to the said Lot 4 is to commence as aforesaid or of any deeds or instruments thereby covenanted to be produced or any evidence or information as to the present custody of the prior title deeds relating to Lot 4 or the person or persons now liable to produce the same or make any objection or requisition founded on or relating to the recitals or statements contained in any t»f the instruments with which the said titles are to conunence as aforesaid And the purchaser of Lots 2 and 3 shall not requires 638 CONDITIONS OF SALE. No. CCCII. Freeholds and Leaseholds, Delivery of abstract and objections to title. What to be deemed evi- dence. any evidence of the redemption of the land tax in respect of those lots. ' V. The vendors shall within seven days after the day of sale deliver to each purchaser or his or her solicitor on application for the same at the said office of the said Mr. an abstract of the title to the lot or lots purchased by him or her and each purchaser shall within ten days after the delivery of the abstract leave at the said office of the said Mr. a statement in writing of all objections and requisitions (if any) in respect to the lot or lots purchased by him or her and in default thereof shall be considered to have absolutely accepted the title and all objections and requisitions not stated made and left within that time shall be considered as waived and any answer to any original or subsequent statement of objections or requisitions as to the title shall within seven days after the delivery of such answer be replied to by a statement in writing and any such answer not so replied to within such time shall be considered satisfactory and time shall in all respects be deemed as of the essence of this condition and in case any purchaser shall in any original or subsequent statement of objections or requisitions make take or insist on any objection or requisition as to or concerning the title to the lot or lots purchased by him or her and which he or she shall be entitled to make under these conditions or as to the conveyance surrender or other assur- ance, which objection or requisition the vendors shall be unable or unwilling to remove or comply with they shall be at full liberty (notwithstanding they may have delivered any further or amended abstract or abstracts or endeavoured to remove or comply with such objection or requisition or may have continued to treat with the purchaser by whom or for whom such objection or requisition shall be made) by any writing under their hands or the hand of their solicitor to annul and put an end to the contract altogether with respect to such lot or lots upon re- turning or tendering to the purchaser thereof the deposit money paid by him or her without interest in full satisfaction of all damages costs charges and expenses which such purchaser may sustain and the purchaser shall be precluded from all further claim. VI. All recitals and statements of deeds and other docu- ments descents deaths of parties heirships pedigrees intes- tacies and other facts stated mentioned referred to or implied in any deed or document to be abstracted shall be accepted as CONDITIONS OF SALE. C39 conclusive evidence of the contents purport and due execution No. cccir. of the deeds and documents and of the truth of the facts and Freeholds and matters therein stated mentioned referred to or imj^hed and '— the vendors shall not be required to furnish any other evidence of the identity of the property offered for sale with the pro- perty described in the several documents of title than is atforded by such documents. VII. Each purchaser shall bear the expense of and attending Expenses to be the comparison and examination of the abstract with all deeds ^°^"f ^^ ' _ purchasers. wills and other documents not in the vendor's possession in- cluding the expense of all journeys which may be necessary for the purpose and shall also bear the expense of all attested official or other copies of or extracts from any deeds wills or other documents copies of or extracts from which may be required by him or her and of all certificates or copies of or extracts from parochial or other registers statutory declarations and all other evidence whatsoever which shall be required by him or her whether for verifying the abstract or for any other purpose and no purchaser shall require the delivery of any pro- bates of wills grants of administration or other documents of record or any covenant for the production thereof. VIII. The title deeds relating to Lot 1 affect that lot exclu- Provision as to sively and will be delivered to the purchaser thereof Lots 2 3 and 4 together with other premises are subject to a mort- gage the mortgagee whereof will concur in the conveyance of them to the purchaser or purchasers thereof respectively The title deeds relating to those lots will be retained by the vendors beneficially interested under the will of the testator through whom they immediately claim in case the produce of the present sale shall be sufficient to discharge the mortgage but the same will be retained by the mortgagee in case the produce of the sale shall not be sufficient for the purpose and in either case the vendors beneficially interested as aforesaid will if required at the expense of the purchaser or purchasers of Lots 2 3 and 4 respectively enter into the usual covenant with him her or them for the production of such title deeds the covenant by the vendors to be restricted to the time of their possession of the said title deeds but in case the same shall be retained by the mortgagee such covenant shall be expressly subject to his right to retain the same as such mort- gagee and the purchaser or purchasers shall not object to such covenant on the ground that the title deeds and documents shall title deeds. 640 CONDITIONS OF SALE. No. CCCII. Freeholds and Leaseholds. Only covenant against incum- brances to be required. Outstanding terms. Conveyances to purchasers. Errors in par- ticulars. not be in the possession of the covenantors but shall be allowed to remain in the possession of the mortgagee or on the ground that such covenant may not run with the land or require that the legal estate in the premises should be vested in the cove- nantors previously to the execution of the conveyance to the purchaser or purchasers or make any other objection or requi- sition to or in relation to such covenant and the mortgagee shall not be required to enter into any covenants except the usual covenant that he has not incumbered The purchaser of Lot 1 shall take an assignment of the premises comprised therein from the surviving executor of the testator and shall not require any other covenant from him than the usual covenant that he has not incumbered and shall not require any other party to join in the assignment. IX. The purchaser or purchasers shall not require the assignment of any outstanding term unless the same and the obtaining letters of administration for vesting such term in any person or persons and the deducing proving and making out and verifying the title thereto shall be at the sole expense in all things of the purchaser requiring the same, but the completion of the purchase shall not be delayed on that account. X. Upon payment of the remainder of the purchase money at the time and place above mentioned the several lots shall at the expense of the purchaser or purchasers thereof respectively be conveyed assigned surrendered and assured to them respec- tively such purchaser or purchasers to prepare the conveyances assio-nments surrenders and assurances to them respectively and leave the same at the office of the said Mr. on or before the 1st day of July next for execution. XI. The quantities of land and the description and extent of the several lots as stated in the particulars are believed to be and shall be taken to be correct without equivalent or compen- sation on either side whether the same be more or less but if any error mistake or misstatement in any other respect shall appear to have been made in the particulars of sale such error mistake or misstatement shall not annul the sale but com- pensation or allowance shall be made by the purchaser or vendors as the case may require such compensation or allow- ance to be settled by two referees or their umpire in manner following (that is to say) each party shall within fourteen days after notice of the error mistake or misstatement shall have been given appoint one referee by writing and the referees so appointed shall before they enter upon the matter of reference CONDITIONS OF SALE. 641 appoint, an umpire by writing and the decision of such referees No. CCCII. if they agree or of such umpire if they should disagree shall ^^laslulid!^ be final And in case either party shall neglect or refuse to appoint a referee within the time aforesaid the referee appointed by the other party shall make a final decision alone. XII. If any purchaser shall fail to comply with the above Non com- ^1 , ■ V 11 V pliaiice with conditions or any of them his or her purchase money shall be conditions. absolutely forfeited and the vendors shall be at liberty either with or without notice to resell the lot sold to such purchaser either by public auction or private contract and the deficiency (if any) arising on such second sale together with all the expenses of and attending the same shall be made good by the defaulter at this present sale as and for liquidated damages And it shall not be necessary for the vendors previously to tender any conveyance to the purchaser but this condition is not to prevent the vendors from enforcing the completion of the original purchase in case they shall think proper so to do. Memorandum &c. See ante, p. 635. No. CCCIII. No.CCCIII. Conditions of Sale of a Copyhold Estate. rr.^^fl s ■' '' ^ "^ {Copyholds). I. The highest bidder to be purchaser, see ante, General Form, Art. I. II. Advance on biddings, see ante, General Form, Art. II. III. Paying deposit and signing agreement, see ante, General Form, Art. III. IV. Delivery of abstract, see ante, General Form, Art. IV. V. On payment of the remainder of the purchase money the purchaser shall have a proper surrender and the property shall be surrendered according to the custom of the manor the vendor executino- the usual covenant for title on the sale of copyhold estates of inheritance which surrender and deed of covenants shall be prepared by and at the exj)ense of the purchaser. VI. If the purchaser shall require the abstract to be certified by the steward of the manor or to be examined with the court rolls such certificate and examination shall be obtained and made by and at the expense of the purchaser. VII. All fines whether arbitrary or certain payable on the sur- VOL. I. '' '•' 642 CONDITIONS OF SALE. No. CCCIII. Lands {Copyholds). render of the vendor or the admission of the purchaser shall be paid by the purchaser. VIII. IX. X. Condition as to timber compensation and for- feiture of deposit, see ante, General Form, p. 633. No. CCCIV. Lands {Leaseholds), No. CCCIV. Conditions of Sale of a Leasehold Estate. I. and II. — See Arts. I. and II. General Form. III. That the purchaser shall pay down immediately into the hands of Mr. a deposit of 20Z. per cent, in part of the purchase money and sign &c. but in case any delay from any cause whatever should arise to prevent the completion of the contract on or before the said day of then the pur- chaser is to pay interest &c. but nevertheless this stipulation to be without prejudice &c. See Art. III. General Form. IV. The purchaser to have a proper assignment of the lease at his own expense on payment of the remainder of the purchase money and possession will be given on completing the purchase but the purchaser shall not require any other title than the leases (a) and assignments thereof with all usual covenants and the vendor {b) shall not be required to produce the title of the lessor and if any deeds certificates or other documents (not in the vendor's custody) shall be required to be produced the same to be at the purchaser's expense and all attested copies to be also at the purchaser's expense. V. There are various fixtures (an inventory whereof will be produced at the time of the sale) which the purchaser is to take at a valuation to be made thereof by two referees or their umpire and paid for at the time of completing the purchase of the estate and the purchaser may be accommodated with all or any part of the furniture at a like valuation. VI. Taking timber, see General Form, Art. VI. VII. If through mistake any article is misstated or omitted in this particular such error or errors shall not vitiate the sale but the purchaser or vendor as the case may happen shall pay (a) Or, " the purchaser shall require no other evidence of title than a lease granted bj^ indenture of demise bearing date &c." (b) As to the necessity of this stipulation, see ante, Pref. sect. 8, p. 625. CONDITIONS OF SALE. 643 or allow a proportionate value to the average of the whole pur- No. ccciv. chase money as a compensation either way. Lands Lastly. Upon failure of complying &c. see ante, General '- Form, p. 633. Memorandnm icritten under the Conditions. It is hereby agreed and declared between and by the vendor of the estate mentioned in the foregoing particular of sale [or " by A. B. of &c. his agent"] and {purchaser) of &c. [or "by C. B. of &c. his agent"] that the said (P.) has become the pur- chaser of the pieces or parcels of land and premises mentioned and comprised in the foregoing particular and that the sum of £ hath been paid down by the said (P. or A.) to the said {V. or A.) by way of deposit and in part of the said purchase money and that the said particular and conditions of sale shall be taken as the terms of agreement for the sale and purchase respectively Witness kc. No. CCCV. No. CCCV. Conditions of Sale of Estates under the Order of the Court of Under Decree Chancery {a). of Chancery. I. No person is to advance less than £ at each bidding. II. The sale is subject to a reserved bidding for each lot which has been fixed by the judge to whose court this cause is attached. III. Each purchaser is at the time of sale to subscribe his name and address to his bidding and the abstract of title and all written notices and communications and summonses are to be deemed duly delivered to and served upon the purchaser by being left for him at such address unless or until he is repre- sented by a solicitor. IV. Each purchaser is at the time of sale to pay a deposit of Wlicrc deposits £ per cent, on the amount of his purciiase money to '^^^^^ luMson '" ' the person appointed by the said judge to receive the same. appoint.d to rett'ivi- tlu'iu (a) See affidavit of auctioneer of result of sale, ante. No. XXXIV. j)]). c.-urUyfi) 62—64. {b) To be inserted only when a deposit directed. T T 2 644 CONDITIONS OF SALE. No. CCCV. V. The chief clerk of the said judge will after the sale proceed Under Decree ^^ certify the result and the day at of oj Chancery. •' . • i i • i • i the clock in the noon is appointed as the time at which the purchasers may if they think fit attend by their solicitors at the chambers of the said judge at in the county of Mid- dlesex to settle such certificate The certificate will then be settled and will in due course be signed and filed and become binding without further notice or expense to the purchasers. VI. The vendor is within days after such certificate has become binding to deliver to each purchaser or his solicitor an abstract of the title to the lot or lots purchased by him sub- ject to the stipulations contained in these conditions And each purchaser is within days after the actual delivery of the abstract to deliver at the office of solicitor at in the county of a statement in writing of his objections and re- quisitions (if any) to or on the title as deduced by such abstract and upon the expiration of such last mentioned time and in this respect time is to be deemed of the essence of the contract the title is to be considered as approved of and accepted by such purchaser subject only to such objections and requisitions if any. VII. Each purchaser is in addition to the amount of his bidding at the sale to pay the value of all timber and timber- like trees tellers and pollards (if any) on the lot purchased by him down to Is. per stick inclusive the amount thereof to be ascertained by a valuation to be made in manner following (that is to say) each party (vendor and purchaser) or their respective solicitors is within days after the chief clerk's certificate has become binding to appoint by writing one valuer and give notice in writing to the other party of such appointment and the valuers so appointed are to make such valuation but before they commence their duty they are to appoint an umpire by writing and the decision of such valuers if they agree or of such umpire if they disagree is to be final and in case the purchaser shall neglect or refuse to appoint a valuer and give notice thereof in the manner and within the time above specified the valuation is to be made by the valuer appointed by the vendor alone and his valuation is to be final. VIII. Each purchaser is under an order for that purpose to be obtained by him or in case of his neglect by the vendors at the costs of the purchaser upon application at the chambers of the said judge to pay the amount of his purchase money (after CONDITIONS OF SALE. 645 deducting the amount paid as a deposit) together with the No. CCCV. amount of the vahiation under the 7th Condition (if any) ^^y'^cLnclZ' into the Bank of England with the privity of the accountant ^ ^ , / ^ , J- n ^ • To be altered general of this court to the credit ot this cause on or if the fourth or before the day of and if the same is not so paid then sixth condition "^'"'^ J • 1 J- IS not inserted. the purchaser is to pay interest on his purchase money inchiding ^^.^ ^^ ^^ .^^ the amount of such valuation at the rate of £ per cent, accordance 1 /• ii- J U" I with the order per annum from the day of to the day on which directing the the same is actually paid deducting property tax Upon pay- sale, ment of the purchase money in manner aforesaid the purchaser J^y^JJIj^equg^^ is to be entitled to possession or to the rents and profits to the time ' „ 1 1 • 1 i.- 11 4. fixed for deli- as from the day of down to which time all out- vcringobjec- goings are to be paid by the vendors. Jirand when IX. If any error or misstatement shall appear to have been the judges- chambers and made in the above particulars such error or misstatement is not ^^^.^^^^^g^j. to annul the sale nor entitle the purchaser to be discharged from general's offices his purchase but a compensation is to be made to or by the ^^^ "^'^"' purchaser as the case may be and the amount of such compensa- tion is to be settled by the said judge at chambers. [Add to these such conditions respecting the title and title deeds as the convey- ancing counsel shall advise to be necessary or proper.'] Lastly. If the purchaser shall not pay his purchase money at the time above specified or at any other time which may be named in any order for that purpose and in all other respects perform these conditions an order may be made by the said judge upon application at chambers for the resale of the lot purchased by such purchaser and for payment by the purchaser of the deficiency (if any) in the price which may be obtained upon such resale and of all costs and expenses occasioned by such default. No. CCCVI. pj^ cccvi. Miscellaneous Conditions in the Sale of Freehold, Copyhold, and Miscellaneous. Leasehold Estates. I. The vendors shall not be required to show any title to any As to title. part of any of the lots previous to the year 1809 and as to such parts thereof as have been purchased by the late owner of the estate the purchasers thereof shall be content with the titles iukUt which they were so purchased, and shall make no objection to 646 CONDITIONS OF SALE. No. CCCVI. the same on account of any acts prior to such purchase nor shall Miscellaneous, ^^q vendors be required to produce any evidence whatever of the seisin of any former owner or owners of the estate or any part thereof nor to produce any original grant of such part of the estates as were formerly part of commons and waste grounds or to show any other title thereto than such as is conferred by upwards of forty years possession nor to point out identify or distinguish the freehold from the copyhold part or parts of any lot nor to point out the situation of or to identify the copyhold parts held of the several manors mentioned in the particular nor in case any lot is held under more than one title to distin- guish or to point out the lands held under each title nor to show a title to any land given or received in exchange by the late or any former owner or owners of any part of the estate nor to give any evidence whatever as to the identity of any lot with the descriptions in the title deeds except such as can be furnished by the deeds themselves and the other documents now in the actual possession of the vendors nor to show the title of any lord of any manor or other person upon any grant of any kind or his or their power to make such grant and all rights which have been exercised by the late or any former owner or owners of the estates for twenty years and upwards shall be deemed and taken as permanent and vested rights And as to all matters and things stated or recited as facts in any deed court roll or other document of title thirty years old or upwards such state- ments and recitals shall be accepted by the purchaser as con- clusive evidence of such facts And the commencement of the title or the abstract thereof by the vendors at an earlier period than 1809 and the production of any deed writing or other do- cument or of any evidence not required to be produced by the vendors shall not be considered as a waiver of this or of any other condition. II. The vendors shall not be required to produce any deeds or copies of deeds wills court rolls or other documents of any kind soever not already in their possession or power nor to produce enter into or obtain any covenant for the production of any such title deeds or documents nor to procure any abstracts thereof nor to point out or inquire where any such are to be found And in case the reconveyance or getting in of any legal getting in legal gg^^tc or the assignment or surrender of any outstanding term or terms of years which is or are now satisfied (whether ex- pressly assigned to attend the inheritance or not) be required by Production of certain deeds not to be required. Expenses of estate. CONDITIONS OF SALE. 647 or on behalf of any purchaser all expenses attending such re- No. CCCVl. conveyance assignment or surrender and also of tracing out and -^ tiscciiaueous. establishing the representation of such legal estate term or terms and getting in the same by whatever means shall be borne and paid by the person requiring the same and no purchaser shall on this account delay the completion of his purchase (a) And all Expense of attested official or other copies of or extracts from any deeds ^l^^^^^ '^''P'^^' wills court rolls inclosure awards acts of parliament or other instruments or assurances and all certificates of births deaths or marriages and all documents writings and evidences of title of any kind soever whether required for examination with or veri- fication of the abstract or however otherwise shall be procured and made at the expense of the parties requiring the same. III. The title to the greater part of the property in the par- Commence- ticulars shall (notwithstanding any statement in the particulars) ™^"' ' commence with a devise in of the property in the parish in which the property in the particulars is situate and as to parts of the property afterwards added to the main property with assur- ances in the years respectively and no title previous to the aforesaid respective periods shall be enquired into or objected to although referred to or existing on court rolls or capable of being produced by the vendors whether for the purpose of showing the title to terms of years or antecedent charges after- wards discharged or for proving identity or otherwise And all allotments made under the or Inclosure Acts in the years and respectively whether directly or by way of purchase or exchange shall be taken to be made as part or in respect or in lieu of or in exchange for the property pre- viously in the title and as otherwise correct and valid in all respects and the lessor's title to the leasehold shall be taken as absolutely good. IV. By far the greater part of the property in the particulars Property idcn- being as will appear in the parish of the position and ^'^'^"^ ^^ ""'l'^' boundaries thereof are shown by the map referred to in the Inclosure Award a copy whereof is in the vendor's possession and which shall be taken as sufficiently identifying such property both with previous and subsequent descriptions And as to such part of the property as is in the parish of (a) Where the conditions of sale do not provide that the purcliosijr is to pay the expense of the assignment of an unsatisfied term, tlie vendor must pay the expense, Strunge v. Hawkes, 2 Jur., M. S. 388. 648 CONDITIONS OF SALE. No. CCCVI. Miscellaneous. Expenses to be paid by pur- chaser. Production of certain deeds not to be required. the same is partially identified by some or one of the old maps in the vendor's possession and by the said Inclosure Map and the map referred to in the Inclosure Award a copy of a sufficient part whereof is in the vendor's possession and which maps shall without being shown to be connected with the present title be taken as sufficiently identifying such last mentioned property And the entire property having from time to time since the said respective awards been mostly included in general descriptions no objection shall be made as to the entire quantity of the particulars not being exactly shown or as to the quantities of the several divisions or holdings in the particulars not being shown. V. Each purchaser is to prepare and be at the expense of the necessary conveyances surrenders deed of enfranchisement and assurances by all necessary parties including existing incum- brancers and also to be at the expense of any deeds of covenant which may be required for the production of deeds and is to pay all fines fees and expenses incident to the surrender of the vendors or any other necessary parties or the admission of the purchaser and no preliminary admission to the copyholds is to be required not absolutely necessary to procure the purchaser's ad- mission And each purchaser is at his own expense to compare the abstracts with the title deeds and court rolls and on payment of the remainder of the purchase money agreeably to the condition each purchaser shall have proper conveyances sur- renders or assurances executed to him. VI. No purchaser shall object to the non-production of certain deeds and documents relating only to interests in charges or monies to arise from the sale of the property or parts thereof or otherwise only incidentally relating to the property or to the non-production of certain copies of court roll or previous leases of the leasehold property or on account of certain of the docu- ments of the title being covenanted to be produced to the railway company to whom a small portion of the estate was sold And as the documents of title relate to other property or existing interests in the property or the money to arise by the sale thereof they will be retained and each purchaser will only be entitled to the usual covenant by trustees or mortgagees limited to the time they hold the same for the production and giving copies of the same and inasmuch as the sale is made by trustees under the direction of the court no covenants for title are to be ex- pected or required. CONDITIONS OF SALE. 649 VII. That the purchaser shall within thirty days from the No. CCCVI. dehvery of the abstract deUver to the vendor's soHcitor a state- Misce llaneous. ment in writing signed by the purchaser's sohcitor specifying all Objections to the purchaser's objections and requisitions (if any) in regard to '^^"''^• the title or the evidence thereof or the abstract and every objec- tion or requisition not so specified shall be considered as abso- lutely waived and in this respect time shall be of the essence of the contract And if no such objections or requisitions shall be delivered within the time aforesaid and subject to such ob- jections and requisitions as shall be so delivered within the time aforesaid the title shall be considered as absolutely accepted by the purchaser. VIII. The purchaser shall make his objections and requisi- Objections to tions (if any) in respect of the title and of all matters appearing on the abstract particulars or conditions and send the same to the office of the vendor's solicitor within days from the day of the delivery of the abstract and in default of such objections and requisitions (if none) and subject to such (if any) shall be deemed to have accepted the title and to have waived all other objections and requisitions And if he shall insist on any objec- Power to annul tion or requisition as to the title or abstract or evidence of title ^^^^^ ^' particular conditions conveyance surrender or otherwise which the vendor shall be unable or unwilling to remove or comply with the vendor may by notice in writing to be given to the purchaser or his solicitor at any time and notwithstanding any negotiation or litigation in respect of such objection or requisi- tion armul the sale and shall thereupon return to the purchaser his deposit but without any interest costs of investigating the title or other compensation or payment whatsoever (a). (a) By conditions of sale, all objections to the title were to be taken witliin twenty-eight days from the delivery of the abstract, which, if not removed within fourteen days, the vendor was to be at liberty to annul tlic contract on payment of the deposit, but without costs. The purchaser having made an objection, which was not removed, the vendor gave notice to annul the contract. The objection being held valid, the court considered the vendor entitled to avail himself of tlie condition ; but was of opinion tluvt, if, in giving notice to annul, tlie defendant had sought imjtroprrly to escape from the performance of a duty vvhicli, by the nature of tlie contract, he was bound to perform it would have been invalid, Page v. Adam, 4 Beav. 201). The conditions of sale provided that all obj(!Ctions to the title disclosed by the abstract not taken within a certain time after delivery of the abstract to the purchaser should be deemed to be waived. It was held, that the time for objecting was not to be computed from the time of the delivery of uii 650 CONDITIONS OF SALE. No. CCCVI. IX. That the conveyance shall be prepared by the purchaser Miscellaneous, ^j^^j ^]^g Same shall be left with the vendor's solicitors for execu- Expenses to be tion at least twelve days before the time of completion All the purchaser. "^ costs of the conveyance (including the covenants to surrender) and surrenders and also the costs of any special court shall be paid by the purchaser. As to produc- That no deed will award or other document not in the ven- ments of title, dor's custody recited in any deed surrender admittance or other document dated or existing thirty years prior to the day of sale nor any copy or extract of or covenant to produce any such deed will award or other document shall be required to be produced to the purchaser for verifying the abstract or verifying Attestedcopies. recitals or for any other purpose And all attested certified office examined or other copies which shall be required by the pur- chaser for the purpose of verifying the abstract or recitals or of being kept by the purchaser or for any other purpose shall be Costs for pro- furnished by the vendor and paid for by the purchaser That deeds. the purchaser shall not be entitled to object for want of a cove- nant or of a sufficient covenant for the production of any of the deeds and that any covenant which shall be entered into by the vendor for the production of any instruments retained by him shall be prepared perused and executed in all respects at the expense of the purchaser The purchaser shall not be entitled to require the production of the original of any instrument not in the vendor's possession of which a copy or what purports to be a copy shall be produced nor to require the production of any deed or instrument noticed in any covenant to produce deeds imperfect abstract, and that the purchaser was not precluded from taking an objection which arose out of evidence called for before the expiration of the time fixed, Blacklow v. Laws, 2 Hare, 40. A condition of sale was, that in case the purchaser should raise objections to the title which the vendor should not be able or willing to remove, the vendor might rescind the contract, on notice, and repayment of the deposit to the purchaser ; and objections not delivered within fourteen days after delivery of the abstract to be treated as waived, in which respect time was to be essential. The purchaser returned the abstract with queries within the fourteen days, and the vendor answered the queries. The purchaser on the same day objected to the answers ; the correspondence on the subject of title continued for several weeks ; and then the vendor gave notice that he re- scinded the contract. It was held, that the continuance of the treaty for the completion of the title, after the first objection of the purchaser, was a waiver of the condition as to the rescinding of the contract, Morley v. Cook, 2 Hare, 100. See Cutis v. Thodey, 13 Sim. 206. CONDITIONS OF SALE. 651 unless such deeds or instrument can be procured by the vendor No. cccvi. without suit That the expense of all journeys to compare the ^ Miscellaneous. abstract with deeds court rolls or other instruments and for the Expenses to be examination thereof and all the expense relating to the produc- chaser'. ^"'^" tion thereof and all the expense of copies and extracts of ba])tismal marriage and burial registers and of the verification thereof shall be paid by the purchaser That all assignments and conveyances required by the purchaser of outstanding terms or other legal estates shall be prepared perused and executed in all things at the expense of the purchaser who shall also pay all the expense of finding and deducing a title to the person or persons in whom any such term or legal estate is vested and of taking out letters of administration if necessary to constitute a proper assignor of any such terms That all births deaths sur- Facts recited in vivorships descents numbers of children or issue heirships e^jg^oij''^ executorships intestacies and other facts and all events recited stated noticed or assumed in any instrument dated thirty years prior to the day of sale shall be taken to be sufficiently proved by such recital statement notice or assumption. X. That the purchaser shall not be entitled to require evidence Identity of of the identity of the parcels with the description in the deeds P^"^'^- or court rolls nor to require the freehold part to be in any case distinguished from the copyhold part nor to distinguish in any case the parts held under different titles or to object for want of such evidence or complete identification. XI. That the vendor shall not be required to identify set out or distinguish the copyhold parts of any lot from the freehold parts thereof nor the copyhold parts holden under one manor from those holden under any other manor or manors and in case any lot is held under more than one title the vendors shall not be required to distinguish or point out the part or parts thereof held under each title. XII. No evidence shall be required that any person who died Dower, more than twenty years since did not leave a widow or that any person who made a conveyance more than years ago was not married. XIII. The purchaser of Lot 2 shall in addition to the Timber to be purchase money and as part thereof and to be paid with the [i'^^^" "' ^"'"'*' same and with interest in case of nonpayment as aforesaid pay for all timber and tiniberlike trees pollards tellers and saplings down to one shilling per stick inclusive and for ). V. Upon failure of complying with these conditions the de- posit money shall be forfeited and all lots uncleared within the time aforesaid shall be resold by public auction or private sale and the deficiency (if any) on such resale shall be made good by the defaulter. On the sale of boohs, add, as a condition to precede the last : " The books are presumed to be perfect unless otherwise expressed but if upon collating at the place of sale any should prove defective the purchaser will be at liberty to take or reject them but the sale of any book is not to be set aside on account of stained or short leaves." (a) For other forms, and as to forma for letting by auction, see Bateman's Law of Auctions, Append. I., 149 et seq. {b) As to the effect of this condition, see antCy Pref. sect. 9, p. 028. U u2 660 No. CCCVIII. Goods. CONDITIONS OF SALE. On the sale of horses, add as follows : " A warranty of soundness when given at this repository will remain in force until twelve o'clock at noon on the day next after the day of sale when it will become complete and the re- sponsibility of the seller will terminate unless in the meantime a notice to the contrary accompanied by a certificate of a vete- rinary surgeon be delivered at in which certificate shall be set forth the cause and nature or description of the alleged unsoundness In this case the seller to have the option of pro- curing the certificate of a second veterinary surgeon (which he shall be bound to do within twenty four hours after the delivery of the purchaser's notice and certificate of unsoundness above mentioned or the sale to be void) whose opinion if it should comcide with the first shall be definite but if the opinions differ the two veterinary surgeons shall forthwith call in a third whose certificate shall be final and binding on both parties the party in the wrong to pay all the expenses." See Bywater v. Richard- son, 1 Ad. k Ell. 508. On the sale of merchandize, add as follows : " The goods to be taken with all faults and defects as they now lie to be reweighed within ten days and to be at the pur- chaser's risk from the time of weighing to be taken from the scale at the purchaser's expense and the warehouse to be cleared within two months or rent to be paid for any that may remain after that time. " Payment to be made on delivery of the bills of parcels by bills &c. and in case of default the goods to be resold forthwith and the loss (if any) made good by the defaulter. " Purchasers to pay all duties of customs. " The signing of the catalogue by the selling broker to bind both seller and purchaser." No. CCCIX. Commercial Sale. No. CCCIX. Conditions of a Commercial Sale. Obs. Since the introduction of the docks, it has become the prac- tice to dispose of warehoused goods by public sale, in the same manner as had been before adopted by the East India Company, which sales are conducted by brokers. The following conditions, which were CONDITIONS OF SALE. 661 commonly used by the East India Company at their sales, may, with No. CCCIX. slight variations, be adapted to any such commercial sales, PuUing's Commercial Treatise on the Laws, &c. of London, p. 464, '2nd ed. — I. The highest bidder to be the purchaser and if any dispute arise the same is to be decided by a show of hands or to be left to the decision of the selling broker. IL The buyers of goods at this sale are to pay all duties of customs and excise (a) which now are or may hereafter be im- posed upon the same by any act of parliament. IIL All brokers who shall buy at this sale are to take notice that they are within three days after the conclusion of the sales to declare in writing the names of their principals with their places of abode and all brokers who buy for persons in the country or abroad shall at the time they declare their principals produce their orders for the same together with the undertaking of a resident known agent in London to make good the contract Should any broker neglect to declare his principal in the manner above mentioned or buy for persons under age he shall be esteemed the principal and shall himself be obliged to pay for the goods so bought by him. IV. Every person whether broker agent or principal who shall be declared to be the best bidder for any lot or lots of goods at this sale shall make such deposits as are expressed in the cata- logue on {b) or immediately after the sale of any lot if required in default of which the lot to be put up again and shall pay the remainder of the purchase money on delivery of the warrants on or before the prompt day (c) {which is alwmjs fixed) without discount. V. In case any buyer of goods shall make default in payment of his deposit or in paying the remainder of the purchase money the goods shall be as soon after as convenient resold by public auction or private contract at the option of the selhng broker and the difference in price if any together with the expenses and interest of money or other damage shall be made good by the defaulter. VI. In all cases where the goods have been exposed to view (a) Except sugars, hides, and some others, wliich are sold duty paid, Pulling, ub. sup. (b) This is usually made a few days after, Pulling, iJ>. sup. (c) By the "promi)t day" is understood tlie day for f)aynicnt on sales of goods, not payable by bills, which varies in different trades. Pulling, ub. sup. 662 CONDITIONS OF SALE. Commercial Sale. No. CCCIX. SO as to afford oyjportunity for purchasers to exercise their own judgment no allowance whatever will be made nor will the pur- chasers be permitted to relinquish on any pretence any lots they may have bought. VII. No allowance will be made upon any goods by reason of damage or otherwise that shall remain in the warehouse after the prompt day The buyers shall be at liberty to have the packages opened at their own charge previous to the prompt day and if any goods be damaged (unless as described in the catalogue) or any pieces be wanting the buyers shall have and accept such allowance as two or more brokers shall deem rea- sonable but no allowance on any pretence whatever shall be made on any goods bought at this sale after the same have been taken away. VIII. All goods bought at this sale shall remain at the risk of the sellers until the prompt day unless previously paid for. IX. The buyers are to pay lot money as customary to the selling broker on every lot whether bought at or after the sale until the prompt day. X. The buyers are to pay warehouse rent for every lot of goods that remains in the warehouse after the prompt day also all delivery and packing charges according to the rates of tne several dock companies in whose warehouses the same may be respectively lying. No. CCCX. Sale of Ship. No. CCCX. Conditions of Sale of Ship (a). The proprietors of the ship or vessel called the now lying causing her to be exposed to sale on the conditions following viz. : The proprietors do consent and agree to and with the buyer that whosoever bids most and last in due time after he has declared his name and the broker has repeated the same shall be deemed the buyer who is immediately to pay on account one fourth part of the purchase money and the residue within one month after the sale or at the time of delivery of the bill of sale whichever may first happen and two guineas to the broker to bind the bargain On payment of the whole purchase money a legal bill of sale shall be made out to the purchaser (a) See conditions of Sale of a Ship, Wilkinson on Ships, p. 345. CONDITIONS OF SALE. 663 at his expense and the vessel with what belongs to her shall be No. cccx. delivered according to the inventory which had been exposed ^"^^ of Ship. but the said inventory shall be made good as to quantity only The vessel and stores shall be taken with all faults in the condition they now lie without any allowance for weights lengths qualities or any defects whatsoever : But in case any default shall be made by the purchaser in the payment aforementioned the money paid in part shall be for- feited to the sole use of the present proprietors and they shall be at liberty to put up and sell the said vessel again : And neither the broker or any of the present proprietors his or their heirs executors administrators or assigns shall be any- ways accountable or liable to be sued either in law or equity for the said money paid in part and forfeited as aforesaid but the buyer so neglecting shall be liable for all loss costs and damages which may accrue thereby : And for encouragement to the buyer the said vessel is put up at to advance pounds at each bidding and no less. If any difference shall arise at the sale the said vessel shall be put up again. London the (date) Messrs. A. & B. of &c. merchants have this day bought the said {ship or vessel) and stores on the above mentioned conditions of sale for the sum of Witness 1. Definition. Different Kinds of Confirmation. 2. Operative Words. 3. Requisites. \st. A good Confirmor, Sfc. Infant, 8fc. Party confii-ming must be informed of his rights. CONFIRMATIONS. Must be a free Agent. 2nd. Precedent Estate. Zrd. Estate of Confirmor. 4. Confirmation, when necessary. 5. Effect of Confirmation. 6. Stamp Duty. Sect. 1. A confirmation is a conveyance of an estate, or a right in Definition. esse, whereby a voidable estate is made sure and valid, or a particular estate is increased and enlarged, Co. Litt. 295 ;^ or, in other words, a confirmation is the approbation or assent to an estate already created, which, as far as in the confirmor's power, makes it good and valid, Gilb. Ten. 75. Estates which are absolutely void do not admit of 664 CONFIRMATIONS. Confirmations, confirmation, but those which are voidable only ; therefore a lease by- tenant for life, being merely void at his death, cannot be confirmed by the remainderman, Doe v. Butcher, 1 Doug. 50, recognized in Doe V. Archer, 1 B. & P. 531 ; but if a tenant for life makes a lease for twenty years generally, and he in the reversion confirms the lease, then that which would have determined at the death of the tenant for life becomes good and unavoidable, An7i Maijowe's case, 1 Co. 147 ; Poph. 50 ; as to leases, see further, post. Leases. So a confirmation will not add to or take from an estate a descendible quality, nor make a man capable of it, who is incapable of himself, Shep. Touch. Different kinds 312. A confirmation is either express or in deed, that is, when the act done or deed made is intended for a confirmation, or it is implied in law, when the law by construction makes a confirmation of a deed intended for another purpose ; therefore if tenant for life and his lessor make a feoff'ment by deed, this is the feoffinent of the tenant for life and the confirmation of the lessor, althoug-h there is no word of con- firmation in the deed, Plowd. 140. Operative 2. The most apt and proper words in a confirmation are, " confirm, ratify and approve;" although " give and grant" and other general words will make a good confirmation, Litt. 515; Shep. Touch. 311; Gilb. Ten. 39. And a bargain and sale which fails to operate as such for want of a consideration has been held to enure as a confirmation, Oshorn v. Churchman, Cro. Jac. 127 ; so although regularly an estate is not created by a confirmation, yet such Avords may be used in a confirmation as may increase or enlarge the estate, but that is effected by the force of those words, and is foreign to the confirmation, Butl. Co. Lit. 295, n. 1 ; Gilb. Ten. 75; as if the lessor confirms the estate of the lessee for life, and adds this clause, " without im- peachment of waste," Beaumont's case, 9 Co. 139 b ; so far as the particular estate is increased, it is not the confirming or strengthening of the tenant's estate, but the giving him a greater one. Such a deed is properly a deed of release, and not a deed of confirmation, Shep. Touch. 311. Requisites of a 3. In every good confirmation there must be — 1st. A good con- goo confirma- fji.jjiQj. ^nd a good confirmee, and a thing to be confirmed, as in other Infant. grants, and the deed must be under seal, &c. As a rule an infant after he is of full age may confirm any contract not absolutely void, Chesterfield v. Jansen, 2 Ves. 146, recognizing Cole v. Gibbons, 3 P. Wms. 290 ; but since the 9 Geo. 4, c. 14, s. 5, such confirmation must be in writing to be valid ; so any person may confirm a contract who is not ignorant of his rights, Cann v. Cann, 1 P. Wms. 723 ; and if he does it with his eyes open he will be bound, if the contract is not absolutely void for fraud, Morse v. Royal, 12 Ves. 355 ; Brayhroke {Lord) Y. Inskip, 8 Ves. 417; Ruche v. O'Brien, 1 Ball & Beat. 355. CONFIRMATIONS. 66 To give validity to a confirmation of a voidable conveyance, the Confirmations. partv confirmins; must not be iijnorant of his ned of his V. Tredennick, 2 Ball & Beat. 317. Where a person is called upon ° to join in a conveyance for the purpose of obviating a specified objec- tion to the title, he will not be bound as to any other interest of which he was not apprised, though if he is told generally that there are objections to the title, and consents to join in the conveyance it must be taken that he has inquired into the nature of the objections, and shall not afterwards raise a question as to the extent of his informa- tion, S rat/broke (Lord) v. I/iskip, 8 Ves. 417 ; Cholmondeley v. Clinton, 2 Mer. 355; Sugd. V. & P. 1021, 11th edit. A man cannot be held by any act of his to have confirmed a title, unless he was fully aware at the time not only of the fact upon which the defect of title depends, but of the consequences in point of law, Cockerell v. Chohneley, 1 Russ. & M. 420. No act of confirmation will be valid if not given freely, but under Must be a free the influence of the former transaction. Crow v. Ballard, 3 Br. C. ^o°"'' C. 117 ; see Scott v. Davis, 4 My. & Cr. 91 ; and, therefore, a deed of confirmation called for under the pressure and influence of the former transaction, when the confirming party cannot be represented to be a free agent, will not avail, Medlicot v. O' Donel, 1 Ball & Beat. 156; Morse v. RoTjal, 12 Ves. 374; Sugd. V. & P. 277, 11th edit. 2nd. There must be a precedent estate in him to whom the con- Precedent firmation is to be made, in his own or another's right ; or, at least, he s^*^^''^' must have the possession of the thing whereof the confirmation is to be made, that it may be as a foundation for the confirmation to work upon, Shep. Touch. 313. And this is the same whether the posses- sion be rightful or wrongful. If a man confirm a disseisor's estate for an hour, this passes the fee without the word '* heirs ;" because the disseisee has the fee, and when he confirms it he cannot afterwards destroy it, 1 Inst. 297 ; Gilb. Ten. 75. 3rd. The estate of the confirmor must be such as to enable him to Estate of con- make a confirmation ; therefore if tenant in tail and the issue in tail 'i>'"'or. join in a grant of the next avoidance, and the tenant in tail dies, this is not a confirmation by the issue in tail, for he had nothing at the time, 1 Roll. 482. 4. If any lease be made by any bishop, dean and the like, which Confirmation, is not warranted by the 32 Hen. 8, or within any other statute, it ^^'''^" neces- must be confirmed by the dean and chapter under their common seal; sed secus, if it be warranted by the statute, Dy. 145; 1 Inst. 300; so if a bishop grant an ancient oflico belonging to his bishopric, ahhough it be but for tlic life of the grantee, it must be coMfirincd by the dean 666 CONFIRMATIONS. Effect of a con- firmation. ConfirmatioTts. and chapter, Bishop of Salisbury's case, 10 Co. 62 ; so if tenant for life grant a rent-charge to I. S. and his heirs, in this case he in the reversion must confirm it, otherwise the grant will be good for no longer than the life of the grantor, Ann MayoKe's case, 1 Co. 147. 5. Where a man has an estate but for life, and he in the reversion confirms the estate to him and his heirs, the confirmation as to the heirs is void, because nothing new is granted by such confirmation ; but if it had been " to have and to hold the land to him and his heirs," that had amounted to a grant of the fee; for then there appears to be a further intent than merely to confirm the estate, that is, to enlarge it to him and his heirs. And my Lord Coke observes, " the habendum and the premises do in substance well agree together ; and that the habendum may enlarge the premises, but not contract it ;" Co. Litt. 299 a; Gilb. Ten. 78. A confirmation may be made of part of the land, but it cannot be made for part of an estate, if free- hold ; Co. Litt. 298 b, 299 a ; but there may be a confirmation of a lease for years for part of the term, as where a lease for 70 years is confirmed for 51, because a term for years is a divisible thing, Foard's case, 5 Co. 81 ; Farl Derby v. Taylor, 1 East, 502. 6. A confirmation simply as such, which does not create or pass any estate, is not a conveyance, and does not require an ad valorem stamp by the 55 Geo. 3, c. 184, Sched. Pt. I. ; but being mostly by deed requires a deed stamp. Any writing, however, not under seal, which confirms contracts and promises is exempt from all stamp duties by the 9 Geo. 4, c. 14. Confirmations are sometimes made by separate deeds, but they more frequently form a part of a grant, release or assignment. Stamp duty. No. CCCXI. Heir at Law, Stamp. Recitals. No. CCCXL Confirmation hy an Heir at Law of Estates devised to a Stranger. Obs. A deed stamp of 11. I5s. and a progressive duty of 105. for every 1080 words above the first 1080. This Indenture made &;c. Between (confirmor) of &c. the eldest son and heir at law &;c. of the one part and (confirmee) of &c. and devisee named in the will of &:c. of the other part Whereas the said (testator) by his last will &c. gave and devised or intended to give and devise the messuage &;c. hereinafter described unto the said (confirmee) his heirs and assigns And whereas [recite death of testator and probate of will] And whereas doubts have been entertained with respect to the validity of the said in part recited devise but the said (confirmor) being satis- CONFIRMATIONS. 667 fied that the said testator was at the time of making and pub- No. CCCXI. lishing his said ^vill of sound and disposing mind and that the ^'''"^ "' ^<'"'- same was signed and published by him as his last will and testament is desirous of confirming the said devise or otherwise conveying and assuring the said lands and hereditaments unto and to the use of the said {confirmee) and his heirs according to the true intent and meaning of the said will Now this Inden- Testatum. ture witnesseth That for the end intent and purpose aforesaid He the said {confirmor) Doth grant ratify and confirm unto the said {confirmee) (in his actual possession now being under and by virtue of the said devise) and his heirs All kc. [parcels, general words, all tJie estate, &c.] To have and to hold the said mes- Habendum, suages &c. hereby granted and confirmed or intended so to be unto and to the use and behoof of the said {confirmee) his heirs and assigns for ever And the said {confirmor) for himself his Covenant, heirs &c. doth hereby covenant with the said {confirmee) his heirs and assigns in manner following that is to say [that he hath not incumbered, see ante, p. 452] And further that for and not- Has not in- withstanding any act deed matter or thing made done committed '^"'"'^'^''^ • or knowingly suffered by him the said {coifirmor) or by or with joyment. his consent or privity He the said {confirmee) his heirs or assigns shall and may from time to time and at all times here- after peaceably and quietly have hold use occupy possess and enjoy the said messuages hereby granted and confirmed or in- tended so to be with their and every of their appurtenances without any let suit trouble hindrance molestation disturbance claim or demand whatsoever of or by the said {confirmor) his heirs or assigns or any other person or persons whomsoever now or hereafter lawfully rightfully or equitably claiming or having title to claim any estate right title or interest of in to or out of the same hereditaments and premises or any part thereof by from through under or in trust for him them or any of them [add covenant for furtlier assurance by confirmor^ In witness &c. No.CCCXII. No.cccxii. Confirmation of a Lease by the Lessor in whom the Leyal 0/ a Lean. Estate was not vested on the Execution of the Lease, but who had subsequently acquired it. This Indenture made the day of 18 Between the within named {lessor) of the one part and the within named 668 CONFIRMATIONS. No. CCCXII. Of a Lease. Recital. Appointment and con- firmation. Habendum for residue of term. Subject to the rents reserved, and the costs contained in lease. Covenant by lessee to pay the rent, (lessee) of the other part lVJie7-eas for the purpose of removing all doubt whether the term granted by the within written inden- ture is a term of legal or equitable estate the said (lessor) in whom the legal estate of inheritance is now vested hath con- sented and agreed to make and execute the demise and confir- mation hereinafter contained ]Vow this Indenture witnesseth That in pursuance and in exercise of every power and authority powers and authorities enabling the said (lessor) in this behalf by way of confirmation and as far as these presents can operate by confirmation and as far as these presents cannot operate by confirmation then by way of appointment or demise He the said (lessor) Doth by these presents direct limit and appoint and also grant demise and confirm unto the said (lessee) his executors administrators and assigns All that piece or parcel of land mes- suage or dwelling house and buildings hereditaments and pre- mises mentioned and comprised in the within written indenture and thereby demised or expressed or intended so to be and every part and parcel of the same with the appurtenances To have and to hold the said piece or parcel of land &c. hereby demised or confirmed or otherwise assured or intended so to be and every part and parcel of the same with the appurtenances unto the said (lessee) his executors administrators and assigns henceforth for and during all so much and such part of the time of the term granted or intended so to be granted by the within written indenture as is now to come and unexpired Subject nevertheless to the same or the like rent as was reserved by the within written indenture and to be payable in the same or the like manner and on the same days as that rent was made payable and subject to the same or the like covenants provisoes condi- tions or aoreements as were or are contained in the same inden- ture on the part of the said (lessee) his heirs executors adminis- trators or assigns to be paid done observed and performed And the said (lessee) Doth hereby for himself his heirs executors administrators and assigns covenant and agree with the said (lesso?') his heirs and assigns that he the said (lessee) his heirs executors administrators or assigns shall or will henceforth from time to time during the continuance of the term hereby granted or confirmed or intended so to be well and truly pay satisfy and discharge the yearly rent of £ mentioned in and reserved or intended to be reserved by the within written indenture and by these presents when and as the same rent shall henceforth be- come due and payable And from time to time during the con- CONFIRMATIONS, 669 tinuance of the same term observe perform fulfil and keep all No. CCCXII. and singular the covenants stipulations and agreements ex- Q/** L ease. pressed and contained in the within written indenture or the and perform counterpart thereof and which by and on the part and behalf juHn^re!"'^ of the said (lessee) his executors administrators and assigns are mainJer of or ought to be henceforth observed performed and kept for or in respect of the premises demised by the within written indenture or intended so to be as far as the same covenants conditions and agreements can be observed and performed with reference to the term granted or confirmed by these presents And the said Covenant by (lessor) Doth hereby for himself his heirs executors administra- 1^^^°"" ^° P*^'"' . *' form covenants tors and assigns covenant and agree with the said (lessee) his during re- executors administrators and assigns that he the said (lessor) his "em heirs executors administrators or assigns shall and will hence- forth from time to time during the continuance of the term granted or confirmed by these presents well and truly observe perform fulfil and keep all and singular the covenants stipula- tions and agreements expressed and contained in the within wn'itten indenture of lease or the counterpart thereof and which by and on the part and behalf of the said (lesso?-) his heirs ex- ecutors administrators and assigns are henceforth in respect of the messuages and other the premises demised by the within written indenture to be observed performed and kept as far as the same can be observed performed and kept with reference to the term granted or confirmed by these presents /n witness Sec. CONSENTS. No. CCCXIII. No. CCCXIII. Consent by a Mortgagor, a Tenant in Common, that the 3fort- Mortgagor, gagee may produce the Title Deeds, Ohs. Where the title deeds to the entirety of the property is in the possession of the mortgagor, and are delivered over by him to the mortgagee, the latter, it appears, is not at liberty to produce such deeds, even to the co-tenant of the mortgagor, without his express consent, Lambert v. Rogers, 2 Mer. 489. See Balls v. 3Iargrave, 3 Beav. 448 ; 4 Beav. 119 ; Hercy v. Ferrers, 4 Beav. 97. And whereas it hath been agreed that the title deeds relating to the entirety of the said premises being in the custody of the 670 No. CCCXIII. Mortgagor. CONSENTS. said {mortgagor) shall be delivered over to the said (mortgagee) and that he shall be at liberty to produce the same in manner as hereinafter mentioned Now he the said {mortgagor) for himself his heirs executors administrators and assigns doth hereby con- sent and agree with and to the said {mortgagee) his heirs exe- cutors administrators and assigns that he and they shall and lawfully may from time to time and at all times when thereunto required by the person or persons who for the time being may be lawfully or equitably entitled to the other remaining moiety or half part \or " other part or parts" as the case may he] of the said premises produce and show forth or cause to be produced &c. to him her or them his her or their heirs appointees or assigns or any of them or to his kc. counsel attorney or solicitor the said title deeds or any of them relating to the same. No. CCCXIV. Purchaser. No. CCCXIV. A Purchaser's Consent to deliver up an Agreement for the Sale of an Allotment of Common. I the undersigned do hereby consent that the agreement bearing date &c. and entered into between me and A. B. of &;c. shall be delivered up to the said A. B. to be cancelled And I hereby agree to rescind the same and do discharge the said A. B. from the performance thereof in all respects As witness my hand {Purchaser.) Consent hy Protector of a Settlement, see post, Disentailing Deeds. No. CCCXV. Vendor. No. CCCXV. Consent hy a Vendor that a Purchaser may retain Part of the Purchase Money. And this Indenture further witnesseth and it is hereby de- clared and agreed and particularly the said {cestui que trusts) do , CONSENTS. 671 liereby consent and declare that the payment as well of the said No. cccxv. principal sum of £ being the remaining part of the said yendor. purchase money as of the interest that shall become due in respect thereof shall not be required of the said (P.) during the life of the said A. B. by the said (cestui que trusts) or any of them or any of their executors administrators or assigns And also that the said sum of £ and interest shall continue and be in the hands of the said (P.) his executors administrators and assigns as a security to him and them and as a protection to the messuages and other hereditaments expressed to be hereby released against or from the (a) dower or thirds and all right and title of or to dower and all other claims and demands of her the said A. B. or of the said N. B. in her right And for that purpose that it shall and may be lawful for the said (P.) his heirs &:c. by and out of the said sum of £ and the interest thereof to pay satisfy and reimburse himself and themselves all costs charges damages and expenses which he or they shall bear sustain or be put unto And all money and costs which shall be received and enforced from or out of the said messuages and other heredita- ments expressed to be hereby released or any part thereof for or by reason or on account of the dower or thirds of the said A. B. or of any right interest claim or demand of her the said A. B. or the said N. B. in her right or for or by reason or on account of any action suit or other proceeding at law or in equity which shall or may be brought had commenced or prosecuted for esta- blishing such dower or thirds or for enforcing and establishing such other right interest claim or demand as aforesaid or other- wise in relation thereto. Conveyances, see post, Deeds, Disentailing Deeds, Pur- chase Deeds. (a) See post, Dower. THE end of vol. I. LONDON : PRINTED BY C. ROWORTH AND SONS, BELL YARD, TEMPLE BAR. i LAW LIBRAKY UNIVEKSITY OF CALIFOHNU UCSOt'Twrq. . Y LIBRARY FACIL ^^ 000 689 474 ITY II (fill 5