: 'iMJ^A OCTOBER, 1907, VALUABLE LAW WORKS PUBLISHED BT STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, LONDON, W.C. Temperley's Merchant Shipping Acts, 1894 to 1907. XtMmd Edition. By ROBERT TEMPERLEY, Solicitor, HUBERT STUART Barrister-at-Law, and ALFRED BUCKNILL, Barrister-at-Law. MOORE, Royal SKO. Godefroi's ] Edition. B at-Law. -ft Heywood < HEY WOO] AUTHORS Masters in 3 Campbell's Blackstone': of "Ruling Roscoe's Di Actions at T tees. Third LING, Barristers- 3y ARTHUR Edition. By the the Office of the Bounded on ;er-at-Law, Editor ;he Trial of rVELL, Barrister- at-Law. '1 Knowles' I T TXTT\71TD CTTV Injuries to Workmen; UlNl VUlXdl 1 I on Act, 1906, and of the Case Rules and Forms. De Hart '* OF CALIFORNIA S*'3o6- ' 2SS LOS ANGELES lW SIM ' EY ' Addison's 1 Wrongs and their Renu > GORDON and WALTER 8w. 1906. Price II. 18s. clot) Addison or SCHOOL OF LAW ,aw of Con- tracts. Tent T TRD AD V AM E. GORDON, Barristers-s LIBRARY Fry's Treat F Contracts. By the Ri iV. D. RAWLINS, K.C. Royi Leake's Pri -Fifth Edit. By A. E. R ce II. 12*. cloth. Hart's La-w [EBER HAKT, LL.D., Bar Burge's Co _^~*Jolonial ari-d Foreign Laws Generally and in their Conflict with each other. New and Enlarged Edition. By A. WOOD RENTON, Puisne Judge, Ceylon, and G. G. PHILLIMORE, Barrister-at-Law, assisted by Experts in the several systems of Law. five Voh. Royal Svo. Price, net, SI. 8s. cloth. Jackson and Gosset's Investigation of Title. Being a "Practical Treatise and Alphabetical Digest of the Law connected with the Title to Land, with Precedents of Requisitions. By W. HOWLAND JACKSON and THOROLD GOSSET, Barristers-at-Law. Third Edition. By W. HOWLAND JACKSON, Barrister-at-Law. Demy Svo. 1907. Price 15s. cloth. Wang's German Civil Code. Translated and annotated, with an Historical Introduction and Appendices. By CHUNG HUI WANG, D.C.L. Royal Sro. 1907. Price 25s. cloth. , A Catalogue of New Law Works post free on application. STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, LONDON, f Bullen and Leake's Precedents of Pleadings in Actions in the King's Bench Division of the High Court of Justice. With Notes. Sixth Edition. By CYRIL DODD, K.C., and T. WILLES CHITTY, Barrister-at-Law, a Master of the Supreme Court. Royal Svo. 1905. Price II. 18*. cloth. Smith's Compendium of Mercantile Law. Eleventh Edit. By EDWARD LOUIS DE HART and RALPH ILIFF SIMEY, Barristers- at- Law. Two Vols. Royal Svo. 1905. Price 11. Is. cloth. Dart's Vendors and Purchasers. Seventh Edition. By BENJAMIN L. CHERRY, G. E. TYRRELL. ARTHUR DICKSON and ISAAC MARSHALL, assisted bv L. H. ELPHIXSTONE, Barristers-at-Law. Ttco Volt. Royal Svo. 1905. Price 37. 15*. cloth. Prideaux's Precedents in Conveyancing. With Disserta- tions on its Law and Practice. Nineteenth Edition. By JOHN WHITCOMBE and BEXJAMIN LENNARD CHERRY, Barristers-at-Law. Two Vols. Royal Svo. 1904. Price 3/. 10*. cloth. Brickdale and Sheldon's Land Transfer Acts. By C. FORTESCUE BRICKDALE, Registrar at the Land Registry, and W. R. SHELDON, Barristers-at-Law. Second Edition. Royal Svo. 1905. Price 25s. cloth. Webster's Law relating to Particulars and Conditions of Sale on a Sale of Land Third 'Edition. By W. F. WEBSTER, Barrister-at- Law. Royal Svo. 1907- Price 25*. cloth. Everest and Strode's Law of Estoppel. Second Edition. By L. F. EVEREST, Barrister-at-Law. Demy Svo. 1907. Price 25*. cloth. Archbold's Pleading, Evidence and Practice in Criminal Cases. With the Statutes, Precedents of Indictments. &c. Twenty-third Edition. By WILLIAM F. CRATES and GUY STEPHENSON, Barristers - at - Law, Demy Svo. 1905. Price II. 15*. half morocco. Cohen's London Building Acts, 1894 to 1905. With Introductions and Notes, &c. By E. ARAKIE COHEX, Barrister-at-Law. Royal Svo. 1906. Price 25*. cloth. Kennedy's Treatise on the Law of Civil Salvage. By The Right Hon. LORD JUSTICE KENNEDY. Second Edition. By A. R, KENNEDY, Barrister-at-Law. Royal Svo. 1907. Price 15*. cloth. Sebastian's Law of Trade-Mark Registration under the Trade-Marks Act, 1905. By LEWIS BOYD SEBASTIAN, Barrister-at-Law, Author of " The Law of Trade-Marks," &c. Royal Svo. 1906. Price Is. 6d. cloth. Coote's Treatise on the Law of Mortgages. Seventh Edition. By SYDNEY EDWARD WILLIAMS, Barrister-at-Law, Author of "The Law Relating to Legal Representatives, "&c. Two Vols. Roy. Svo. 1904. Price 31. 3*. cloth. Cripps' Treatise on the Principles of the Law of Com- pensation. By C. A. CRIPPS, K.C. Fifth Edition. By the AUTHOR, assisted by A. T. LAWRENCE, Barrister-at-Law. Royal Svo. 1905. Price 11. 6*. cloth. Carver's Treatise on the Law relating to the Carriage of Goods by Sea. Fourth Edition. By THOMAS GILBERT CARVER, K.C. Royal Svo. 1905. Price II. 16*. cloth. ieveking'b German Law relating to the Carriage of Goods by Sea. By Dr. ALFRED SIEVEKING, of Hamburg. Demy Svo. 1907. Price 15*. cloth. Ridges' Constitutional Law of England. By E. WAVELL RIDGES, Barrister-at-Law. Demy Svo. 1905. Price 12*. 6d. cloth. Wills' Theory and Practice of the Law of Evidence. By WM. WILLS. Barrister-at-Law. Second Edition. By the Author and THORNTON LA WES, Barrister-at-Law. Demy Svo. 1907. Price 15*. cloth. Russell's Railway Rates and Charges Orders, with Expla- natory Notes and Decisions. By HAROLD RUSSELL, Barrister-at-Law. Royal SSvo. 1907. Price 10*. 6d. cloth. 1 ** A large Stock of Second-hand Law Report* and Text-book* on Sale. ( 2 ) LEGAL REPRESENTATIVES. A CONCISE TREATISE ri^ THE LAW RELATING TO LEGAL KEPEESENTATIVES KEAL AND PEKSONAL. SYDNEY E. WILLIAMS, h AUTHOR OF "THE LAW AND PRACTICE RELATING TO PETITIONS.' " FORENSIC FACTS AND FALLACIES," ETC LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, U.';i lu 1899. BRADBURY, AUNEW, & CO. LI)., HKIMKRS, LONDON AND TONBKIDOE. ri PREFACE. THE object of this little work is to give, in as short a form as possible, a summary of the law of legal representatives as modified by the Land Transfer Act, 1897. In aiming at conciseness something of compre- hensiveness has of course had to be sacrificed, but it is hoped that little or nothing of real importance has been omitted. Branches of the subject, such as probate practice and death duties, have necessarily received but very inadequate notice in the present treatise. For the sake of brevity the time-honoured custom of prefixing "in the goods of" to probate cases has been departed from ; and for a like reason only one case has generally been cited as an authority, but such case will generally be found to include others bearing on the same subject. The author desires to express his deep obligation to the classical work on Executors by the late Mr. Justice Williams. TKMPLK, Innt, 1899. CONTENTS. CHAPTER I. OP THE. OFFICE OF EXECUTOR. I'AGK Who may be executor .......... 1 The appointment of executors ........ 4 How the appointment may be qualified 6 When the office may be transmitted 7 Executors de son tort 9 Refusal or acceptance of office 13 Probate jurisdiction 1(5 What may be done before probate 17 CHAPTER II. OF THE OFFICE OF ADMINISTRATOR. What may be done before administration 20 General administration -21 Administration cum testamento aniiexo ...... 25 Administration de bonis non 1 Administration durante minore letate ....... "28 Administration pewlente lite 30 Administration durante absentia 32 Administration durante dementia 34 Other limited administrations 35 The bond 36 CHAPTER 111. THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRATION. Revocation and it* effect . 40 CONTENTS. CHAPTER IV. OF THE ESTATE OF REPRESENTATIVES GENERALLY. I'AUK Tin- quantity of the estate The ni$ iton, &.c. . . . !)."> CHAPTER IX. THE PAYMENT OF DEATH DUTIES. Estate iluty 97 Settlement- estate duty 100 Legacy anil succession duties ........ 101 CHAPTER X. THE PAYMENT OF DEBTS. Funeral and other debts having priority 104 Debts of record 108 Specialty and simple contract debts Ill Preference by executor 113 Retainer . . . . . . . . . . . 11. "> Set-oil against legacies ......... 120 Extinguishment of executor** debt . . . . . . .\-2-2, CHAPTER XL THE PAYMENT OF LEGACIES. Legacy to executor 126 Abatement of 130 Assent to 132 Time for payment 13(> Appropriation ........... 138 To whom paid . . . . . . . . . . .139 Interest 142 Refunding 143 Payment of residue 144 CHAPTER XII. Or DISTRIBUTION UNDER THE STATUTE 147 X CONTENTS. CHAPTER XIII. PACK ASSETS 150 CHAPTER XIV. THE LIABILITY OF REPRESENTATIVES FOR THE ACTS OF DECEASED. On contract 155 On tort 156 CHAPTER XV. THE LIABILITY OF REPRESENTATIVES FOR THEIR OWN ACTS. On contract ........... 170 Demstavit ........ . . .175 Account ............ 186 CHAPTER XVI. THE REMEDIES FOR REPRESENTATIVES 192 CHAPTER XVII. THE REMEDIES AGAINST REPRESENTATIVES 204 APPENDIX. THE LAND TRANSFER ACT, 1897, PART I. 231 TABLE OF CASES. PAOB A BHIS v. Winter, 3 Swans. 579, 11 110 Abbott r. Abbott, 2 Pliilliin. 578 36 - r. Parfitt, L. R. 6 Q. B. 346 70, 193, -202 Abdullah r. Rickards, 4 Times R. 622 91 Aberdein, lie, (1896) W. N. 154 107 Ackland r. Pring, 2 M. & Gr. 937 ; 10 L. J. C. P. 231 ... 54 Adams r. Barry, 2 Coll. 290 . . 224 Adcock r. Adams, (1896) 2 Ch. 345 ; 65 L. J. Ch. 760 ; 75 L. T. 136 ; 44 W. R. 644 119 Aird, lie, 1 Hagg. Eccl. 336 5 Akerman, AV, (1891) 3 Ch. 212 ; 61 L. J. Ch. 34 ; 65 L. T. 194 ; 40 W. R. 12 121, 193 Akers r. Dupuy, 1 Magg. 473 27 Alexander's Case, 15 Sol. J. 788 164 Alexander /. Mullins, 2 R. & M. 568 205 Allan -. Gott, L. R. 7 Ch. 439 . 153 Allen, lie, Adcock r. Adams 119 - r. Humphrys, 8 P. D. 16 ; 52 L. J. P. D. A. 24 ; 48 L. T. 125 22 Almes v. Alines, 2 Hagg. App. 155 28 Alsager r. Rowley, 6 Ves. 748 222 Alston, Re, (1892) P. 142 ; 61 L. J. P. 92 ; 66 L. T. 591 . . .22 Alton r. M. R. Co., 19 C. B. N. S. 213 :iillie r. Baillie, L. E. 5 Eq. 175 197 Baily, Re, 1 P. & D. 628 ; 20 L. T. 278 ; 17 W. E. 401 . . . 6 Bain r. Brand, 1 App. Cas. 762 (51 - v. Sadler, 12 Eq. 570 ; 40 L. J. Ch. 791 ; 19 W. B, 1077 . . 117 Bainbrigge v. Blair, 8 Beav. 588 ; 9 Jur. 765 189 Baird's Case, 5 Ch. 725 ; 23 L. T. 424 ; 18 W. II. 1094 . . .162 Baker, Re, Collins v. Rhodes 125,185 Re, Nichols v. Baker 115 221 TABLE OF CASES. XI 11 I'AOK Baker r. Fanner, L. R. 7 Cli. 537 131,134 - r. Martin, 8 Sim. 25 12.) Ballanl --. Mi.rsdni, 14 C. 1). 374 ; 49 L. J. Ch. 614; 42 L. T. 763 ; 28 W. R. 914 80, 121 Hanks, R., 45 W. R. 206 . 105 Barber, lie, 34 ('.]). 77 18!) fie, Burgess f. Vinnicdme . . . . . . . 189 - r. Mackrell, 12 C. D. 538 191,210 - r. Tebbit, 29 C. 1). 893 ; 54 L. J. Ch. 954 ; 52 L. T. 906 . 127 V. Walker, 15 W. R. 728 221 Barclay v. Owen, 60 L. T. 220 81 Baring, AV, (1893) 1 Ch. 61 167 Barker, 7.V, Buxtou r. Campbell 134, 196 r. Birch, 1 De G. & S. 376 222 r. Ivimey, (1897) 1 Ch. 536 ; 66 L. J. Ch. 282 ; 76 L. T. 116 ; 45 W. R. 495 182 - .-. Talcot, 1 Yem. 473 51 Barnard /-. Pinufrett, 5 M. & ( '. 03 ; 10 L. J. Ch. 124 . . . .211 Barnesli-y /. Powell, 1 Ves. Sen. 119 . 39 Barnett, AV, (1898) P.. 145 ; 67 L. J. P. 85 ; 78 L. T. 391 . . 25, 76 Barrr. Barr, (1876) W. N. 44 32 Barrett, AV, Whitaker r. Barrett, 43 C. D. 70 ; 59 L. J. Ch. 218 ; 38 W. R. 59 89,114 Barry r. Rush, 1 T. R. 691 172 Barton r. Hassanl, 3 Dr. & W. 461 187 - v. L. & X. W. R., 24 Q. B. D. 77 ; 59 L. J. Q. B. 33 ; 62 L. T. 164 93, 162 - /-. X. S. R., 38 C. D. 458 ; 57 L. J. Ch. 800 ; 3(5 W. K. 754 . 93 Basham, lie, Haiinay V. Hashum, 23 C. D. 195; 52 L. J. Ch. 408 . 228 Baskett, AV, 78 L. T. 843 3 Batthyany . Wallord, 36 C. I). 269 ; 56 L. J. Ch. 881 ; 57 L. T. 206 156 Brad v. Fardell, 7 De G. M. & ('.. 628 . . . . . . 181 Baxter r. Cray, 3 M. & Or. 771 UK) Bayley r. Hayley, 11 Beav. 256 ' 198 Bayne, AV, I'S.'A- T. 132 8 Beatty, AV, L. R. Ir. 29 C. 1). 290 125 Beck r. Rebow, 1 P. W. 94 61 Beckett r. Ramsdale, 31 C. 1). 177 ; 55 L. J. Ch. 241 ; 54 L. T. 2i'2 160,217 Bedell r. Constable, Vaugli. 182 7 Beemnn, AV, (1896) 1 Cli. 48 ; 65 L. J. Ch. 190 ; 73 L. T. 555 ; 44 W. R. 247 . 120 Beer, AV, 2 Rob. 349 TABLE OF CASES. PAGE Bellew v. Bellew, 4 S. & T. 58 31 Bennett r. Lytton, 2 J. & H. 155 199 v. Rebbeck, 63 L. J. Ch. 596 86 Bentinck r. Bentinck, (1897) 1 Ch. 673 ; 66 L. J. Ch. 359 ; 76 L. T. 284 106 Beresford v. Browning, 20 Eq. 564 ; 1 C. D. 34 ; 45 L. J. Ch. 36 . 160 Berry r. Gibbons, 8 Ch. 747 ; 42 L. J. Ch. 231 ; 28 L. T. 5 ; 21 W. R. 255 . 78, 85 ,.. Usher, 11 Ves. 87 122 Beswick v. Orpen, 16 C. D. 202 ; 50 L. J. Ch. 25 ; 43 L. T. 728 121, 194 Bethell /-. Abraham, 17 Eq. 24 ; 43 L. J. Ch. 180 .... 178 r. Bethell, 34 C. D. 561 ; 56 L. J. Ch. 334 ; 56 L. T. 92 . 197 Betty, lie, (1899) 1 Ch. 821 . ' , 167, 168 Bignell v. Harpur, 4 Exch. 773 . .170 Bill v. Kinaston, 2 Atk. 82 137 Billing r. Brogden, 38 C. D. 546 ; 59 L. T. 650 ; 37 W. R, 84 . .91 Billinglmrst v. Spearman, 1 Salk. 297 54 Binns, lie, (1896) 2 Ch. 584 ; 65 L. J. Ch. 83 ; 75 L. T. 99 . . 121 Birch, Re, 27 C. D. 622 ; 54 L. J. Ch. 119 ; 51 L. T. 777 ; 33 W. R. 72 . . .124 Blackborough r. Davis, 1 Salk. 38 ; IP. W. 41 117 Blackett v. Blackett, 24 L. T. 276 ; 19 W. R, 559 . . . .206 Blackford, lie, 27 C. D. 676 225 Blackmore r. White, (1899) 1 Q. B. 293 156 Blackwell, Re, 2 P. D. 72 4 Blake, Re, 29 C. D. 913 199 - v. Blake, 2 S. & L. 26 208 Blasson r. Blasson, 2 De G. J. & S. 665 148 Blenkinsop r. Foster, 3 Y. & C. 207 209 Blogg r. Johnson, 2 Ch. 225 ; 16 L. T. 306 ; 15 W. R, 626 . . 187 Blount, lie, 27 W. R. 865 219 Bluett i: Jessop, Jac. 240 227 Blundell, 40 C. D. 370 184 Board, Re, (1895) 1 Ch. 499 78, 153 Boatwright r. Boatwright, 17 Eq. 71 ; 43 L. J. Ch. 12 ; 29 L. T. 603 196 Boddicott r. Dalzeel, 2 Lee, 296 5 Boddy v. Dawes, 1 Keen, 362 143 Bulger r. Arch, 10 Exch. 333 ; 24 L. J. Ex. 19 43 Bolton v. Powell, 2 D. M. & G. 1 37 Bonney v. Ridgard, 1 Cox, 145 ... 87 Bootle r. Blundell, 1 Mer. 220 .... 153 I '...-worth, Re, 58 L. J. Ch. 432 199,210 Bothaniley v. Sherson, 20 Eq. 304 ... 168 TABLE OF CASES. XV PACK Bothomly v. Fairfax, 1 P. W. 334 Ill Bourne r. Bourne, 2 Ha. 35 56 Bowden r. LayLmd, 26 C. D. 783 ; 54 L. J. Ch. 040 . . 17, 176, 214 Bowen, Re, 20 C. D. 538 211 - r. Phillips, (1897) 1 Ch. 174 ; 66 L. J. Ch. 165 ; 75 L. T. 628 ; 45 W. R. 286 2 Bowes, Re, 37 C. D. 128 ; 57 L. J. Ch. 4.-).-) ; 58 L. T. 309 ; 36 W. R. 393 165 Bowker r. Evans, 15 Q. B. D. 565 72 Bowles r. Hyatt, 38 C. D. 609 ; 57 L. J. Ch. 777 ; 59 L. T. 297 . 214 Boxall r. Boxall, 27 C. D. 220 ; 53 L. J. Ch. 838 ; 32 W. R. 896 .41 Boyd i: Brooks, 34 Beav. 7 ; 34 L. J. Ch. 605 119- Boyse, Re, 15 C. D. 591 ; 49 L. J. Ch. 689 ; 29 W. R. 169 . 109, 198 Bracken, Ee, 43 C. D. 1 ; 59 L. J. Ch. 18 ; 61 L. T. 531 ; 38 W. R. 48 125 Bradley r. Heath, 3 Sim. 543 171 Bradshaw r. Lancashire, &c., 10 C. P. 189 ; 44 L. J. C. P. 148 . . 66 Braithwaite, Re, 21 C. D. 121 138 I'.iu-sington r. Ault, 2 Bing. 197 18 Bray r. Tofield, 18 C. D. 551 ; 50 L. J. Ch. 811 ; 45 L. T. 464 ; 30 W. R. 55 219- Brewster c. Prior, 55 L. T. 271 ; 35 W. R. 251 213 Bricer. Stokes, 11 Ves. 319 185 - /-. Wilson, 3 N. & M. 518 173 Bridge, Re, 56 L. J. Ch. 779 218 Brier r. Evison, 26 C. D. 238 ; 51 L. T. 133 ; 33 W. R. 20. . 182, 184 Briesemann, Re, (1894) P. 260 ; 63 L. J. P. 159 3 Brings r. Wilson, 5 D. M. & G. 12 197 Bi-iiidley r. Partridge, 13 C. D. 654 ; 28 W. R. 711 . . . 179, 181 British Guardian, &c., Re, 14 C. D. 335 ; 49 L. J. Ch. 4S . . . 164 Brogden, Re. See Billing v. Brogden 91 Broker r. Charter, Cro. Eliz. 92 135 Bromage r. Lloyd, 1 Exch. 32 90 Brooke p. Brooke, (1894) 2 Ch. 600 ; 64 L. J. Ch. 21 ; 71 L. T. 398 . 174, 202. - r. Haymes, 6 Eq. 25 14, 15, 144 Broughton r. Broughton, 5 De G. M. & G. 160 189 Brown, In the good* of, 2 P. D. 110 5 - Re, 80 L. T. 360 35 - v. De Tastet, Jac. 284 . 201 - v. Douthwaite, 1 Madd. 446 222 - v. Gordon, 16 Beav. 302 ; 22 L. J. Ch. 65 .... 195 Brut-re v. Pembertou, 12 Ves. 386 .... . 187 Bryant, Re, (1896) P. 159 ; 65 L. J. Ch. 96 23- lirydes. Wotton, 1 V. & B. 134 12^ TABLE OF CASES. PAUK Uul.b r. Yelverton, 13 Eq. 131 ; 40 L. J. Ch. 38 . . . .127 Biu-han's Case, 4 App. Cas. 549 . ..... 162 IJuc-k r. Robson, 10 Eq. 629 ..... . 161 Buckley r. Barber, 6 Ex. 104 ; 20 L. J. Ex. 114 . . . . 13 Budgctt r. Budgett, (1895) 1 Ch. 202 ....... 200 Bullock r. Downes, 9 H. L. C. 1 ........ 224 - r. Wheatley, 1 Coll. 130 ....... 179, 181 Bulmer's Case, 33 Beav. 435 ........ 163 Bulmer r. Buhner, 25 C. D. 409 ........ 65 Bulwer r. Bulwer, 2 B. & A. 470 ....... 59 Bui-dick r. Gariick, 5 Ch. 233 ; 39 L. J. Ch. 369 ; 18 W. R. 387 . 42, 188 Bunion *-. Morgan, 2 P. & D. 371 ....... 35 Burge r. Brutton, 2 Ha. 373 . ....... 118 Burgess r. Burgess, 1 Coll. 367 ........ 128 - r. Vinnicome, 31 C. D. 665 ; 55 L. J. Ch. 373 . . . 181) Burke v. Jones, 2 V. & B. 275 ........ 223 Burrage, He, 62 L. T. N. S. 752 ........ .215 Burrows r. Walls, 5 D. M. & G. 233 ..... . . 185 Burton r. Roberts, 29 L. J. Eq. 484 ....... 198 Butler, Exparte, I Atk. 213 ; Anibl. 74 ...... 46 - Re, (1898) P. 9 ; 67 L. J. P. 15 ; 46 W. R. 445 . . 35 Buxton r. Buxton, 1 M. & Cr. 80 ...... 179, 181 - r. ( 'ampbell, (1892) 2 Ch. 491 ; 62 L. J. Ch. 76 . . 134, 196 Byrcball r. Bradford, 6 Madd. 240 ....... 137 CAIUIURX, 7.V, 46 L. T. 848 ......... 227 Cadlmry r. Smith, 9 Eq. 37 . . . . . . . .212 Calver r. Laxton, 31 C. D. 440 ; 55 L. J. Ch. 350 ; 53 L. T. 856 115, 116 Ciimpi-. Cue, 31 C. D. 460 ........ 145,146 CampLi-ll. />'.' parte, 16 C. D. 981 ....... 219 r. J'e, 2 Hag. 555 ..... . . . .35 - r. Campbell, 2 Y. & C. 607 ....... 190' - r. - - 16 C. D. 189 ; 43 L. T. 727 ..... 116 - r. Radnor, 1 Bro. C. C. 271 ....... 213 Caney v. Bond, 6 Beav. 486 ...... , .178 Carlyon, He, 56 L. J. Ch. 219 ........ 218 Can- r. Ingleby, 1 De G. & S. 362 ....... 131 Canon r. ^laclaren, 5 H. L. C. 441 ; 24 L. J. Ch. 620 : 3 W. R. 597 106, 197 Cartwright's Case, 1 Freeni. 258 ..... , . . 28 Cartwriht, He, 1 P. D. 422 ..... . . 37 Cary r. Hills, 15 Eq. 79 ; 42 L. J. Ch. 100 ; 28 L. T. 6 . . . 11 Cassidy, lit; 4 Hagg. 360 ...... 33 TABLE OF CASES. XV11 PAGE Catherwood r. Chabancl, 1 B. & C. 150 51, 96 Caver. Roberts 8 Sim. 214 148 Chamberlain, Re, 1 P. D. 316 ; 36 L. J. P. & M. 52 . . . . 41 - v. Williamson. 2 M. & S. 408 66 Chambers v. Howell, 11 Beav. 6 88 - w. Kinghani, 10 C. I). 743 ; 48 L. J. Ch. 169 . . . .48 r. Mine-bin, 7 Yes. 198 184 Chapman, Re, 72 L. T. 66 200 Re, Cocks v. Chapman 138, 144 - r. Dalton, Plowden, 236 . . . . - . . . .70 - v. Day, 48 L. T. 907 72 - r. Mason, 40 L. T. 678 198, 220 Chappell, He, (1894) P. 98 ; 63 L. J. P. 98 ; 70 L. T. 245 ... 3 Chappie, Re, Newton r. Chapman 189 Charles r. Jones, 33 C. D. 80 228 Charlton r. Durham, 4 Ch. 433 ; 38 L. J. Ch. 183 ; 20 L. T. 467 87, 91 Chauncey r. Graydon, 2 Atk. 616 71 Cherry v. Boultbee, 4 M. & Cr. 442 121 ClK-liire, &c., Rt, 32 C. D. 301 162 Childs r. Monins, 2 B. & B. 460 171 Christian c. Adamson, (1869) W. N. 208 213 -r. Devereux, 12 Sim. 264 129 Christison v. Bolam, 36 C. D. 223 ; 57 L. J. Ch. 221 ; 57 L. T. 250 . 193 Christmas/-. Jones, (1897) 2 Ch. 190; 66 L. J. Ch.439; 45W.R.598. .121,193 Churchill, Re, 39 C. D. 174 ; 58 L. J. Ch. 136 ; 59 L. T. 597 ; 36 W. R. 805 119 Clark r. Clark, 9 App. Cas. 733 ; 53 L. J. P. C. 99 ; 51 L. T. 750. .88, 186 - v. Hougham, 2 B. & C. 149 70 Clarke r. Ormonde, Jac. 108 60 Clegg r. Rowland, 3 Eq. 368 ; 36 L. J. Ch. 137 .... 125, 223 Cliff r. Rowland, 3 Eq. 368 . 203 Clough r. Bond, 3 M. & Cr. 496 ; 8 L. J. Ch. 51 .... 182 -- r. Dixon. 10 Sim. 564 221 Coales, Rt, 78 L. J. 820 14 Cobbettr. Glutton, 2 C. & P. 471 83 Cobham c. Dalton, 10 Ch: 655 214 Cockburn r. Raphael, 2 S. & S. 453 190 Cockerell r. Barber, 2 Russ. 585 128, 190 Cockle r. Treacy, (1896) 2 Ir. R. 267 229 Cockroft, Re, 24 C. D. 94 167 v. JJhick, 2 W. P. 298 117 Cocks v. Chapman, (1896) 2 Ch. 763 ; 65 L. J. Ch. 8!)2 ; 75 L. T. \m ; 45 W. R. 67 117, 178 Coghill r. Freelove, 3 Mod. 326 164 L.R. l> TABLE OF CASES. Cole v. Miles, 10 Ha. 179 PAGK 92 v. Wade, 16 Ves. 45 95 Cole^rave v. Dias, 2 B. & C. 76 . Coles r. Davis, 76 L. T. 771 Collier, Re, 2 S. & T. 444 33 Collins v. Rhodes, 20 C. D. 230 ; 51 L. J. Ch. 315 ; 4T> L. T. 658 ; 30 W. R 858 . . . ; -^ 125 Collinson v. Lister, 20 Beav. 356 87, 174 Collis v. Robins, 1 D. & S. 131 . .. . . . . . 200 Colman, Ex parte, 2 Dea. & C. 584 . Colston v. Morris, 6 Madd. 89 . 137 Colvin v. Fraser, 2 Hagg. 613 . 31 Combe's Case, 9 Co. 75 b. , , , 90 Compton, Re, Norton v. Compton . . . . . 115,118 t?. Bloxham, 2 Coll. 201 39, 127 Concha v. Concha, 11 App. Gas. 541 ; 56 L. J. Ch. 257 ; 55 L. T. 522 39 v. Murietta, 40 C. D. 543 ; 60 L. T. 798 164 Conduit* v. Soane, 1 Coll. 285 137 Connop v. Hay ward, 1 Y. & C. 33 211 Consett v. Bell, 1 Y. & C. 569 222 Cook v. Culverhouse, (1896) 2 Ch. 251 ; 65 L. J. Ch. 484 ; 74 L. T. 347 . . . . 53, 134 v. Martyn, 2 Atk. 3 . 212 Cooke, Be, (1895) P. 68 ; 64 L. J. P. 35 ; 72 L. T. 121 ; 43 W. R. 428 3 Re, 4 C. D. 454 . 95 - v. Stevens, (1897) 1 Ch. 422 ; 66 L. J. Ch. 155 ; 76 L. T. 18 ; 45 W. R. 284 . . . 14, 210 Coombs v. Coombs, 1 P. & D 288 Cooper v. Jarman, 3 Eq. 98 ; 36 L. J. Ch. 85 ; 15 W. R, 142 . . 156 - v. Thornton, 3 Bro. C. C. 96 139 Coote v. Whittington, 16 Eq. 534 ; 42 L. J. Ch. 846 ; 29 L. T. 206 ; 21 W. R. 837 ... . . 11 Cope, .Re, 15 P. D. 107; 59 L. J. P. 94 . .; . . . .36 - v. Cope, 16 C. D. 49 . ... . . . . . .29 Coppard v. Allen, 2 D. J. S. 173 . . .- . . . .222 Coppin v. Coppin, 2 P. W. 296 . . . . ... . .143 Cordeux v. Trasler, 34 L. J. P. M. 127 23 Cormack, Re, (1891) P. 151 ; 60 L. J. P. 96 ; 63 L. T. 70 . . . 36 Corner v. Shew, 3 M. & W. 350 ; 7 L. J. Ex. 105 . . . 170, 173 Corporation, &c. v. Swainson, 1 Ves. Sen. 75 212 < 'unsellis, Re, Lawton r. Elwes 189 Costeker v. Horrox, 3 Y. & C. 530 208 Coulthart v. Clementson, 5 Q. B. D. 42 . . . . . .168 TABLE OF CASES. PACK Courtenay r. Williams, 3 Ha. 539 ...... 193 Coward r. Gregory, 2 C. P. 153 ; 36 L. J. C. P. 1 ; 15 L. T. 27!) ; 15 W. R. 170 ........... 156 < 'owper r. Fletcher, 34 L. J. Q. B. 187 ...... 95 Cradock v. Piper, 1 Mac. & G. 664 ; 19 L. J. Ch. 107 ... 189 Crallan r. Oulton, 3 Beav. 1 ........ 224 Crampton v. Walker, 31 L. R. Ir. 437 ...... 122 Crawford r. Forshaw, (1891) 2 Ch. 261 ; 60 L. J. Ch. 683 ; 65 L. T. 32 ; 39 W. R. 484 ........ 16, 94 - r. Whittal, Dougl. 4, n. . . . ..... 70 Cringan, Re, I Hagg. 548 ......... 5 Crofton v. Crofton, 15 C. D. 591 ; 49 L. J. Ch. 689 ; 29 W. R. 169 109, 198 Croly 9. W, 1,1, 3 D. M. & G. 993 ....... 131 Crosse r. Cocke, 3 Keb. 116 ........ 118 Crosskill v. Bower, 32 Beav. 86 ........ 187 Crowder r. Stewart, 16 C. D. 368 ; 50 L. J. Ch. 136 ; 29 W. R. 331 . 118 Crowle t. Russell, 4 C. P. D. 186 ; 48 L. J. Q. B. 76 ; 39 L. T. 320 ; 27 W. R. 84 ........... 198 Cruickshank v. Duffin, 13 Eq. 555 ; 41 L. J. Ch. 317 ; 26 L. T. 121 ; 20 W. R. 354 ........... 86 Cubbidge c. Boatwright, 1 Russ. 549 ....... 51 Culverhouse, Re, Cook r. Culverhouse .... 53, 100, 134 Cunningham r. Foot, 3 App. Cas. 974 ..... 224, 225 < 'urtis r. Blow, 2 B. & A. 426 ........ 212 - v. Vernon, 3 T. R. 587 ; 2 H. Bl. 18 . . . . 12, 43 Curtius r. Caledonian, &c., 19 C. D. 534 ...... 206 Cutbush r. Cutbush, 1 Beav. 184 ; 8 L. J. Ch. 175 . . . .174 DA CCNHA, Re, I Hagg. 237 ........ 29 Dagley r. Tolferry, 1 P. W. 285 ........ 139 Darke, Re, 1 S. & T. 516 ......... 1 - --. Martyn, 1 Beav. 525 ........ 182 Darthez r. \Vinter, 2 S. & S. 536 ....... 205 Dartnall, Re, (1895) 1 Ch. 474 ; 64 L. J. Ch. 341 ; 72 L. T. 404 ; 43 W. R. 644 ........... 199 Davenport r. Stafford, 14 Beav. 319 ; 14 L. J. Ch. 414 . . .187 David v. Frowd, 1 M. & K. 100 ....... 120, I'^i Davidson v. Illidge, 27 C. D. 478 ; 53 L. J. c 'li. !i!)l ; 51 L. T. 523 ; 33 W. R. 18 ....... . . . .117 Davies, Re, 38 C. D. 210 ......... 218 - r. Brecknell, L. R. 2 P. & D. 177 ...... 17 - r. Hodgson, 25 Beav. 177 ; 27 L. J. Ch. 449 . . . .185 - r. Xicolson, 2 De G. & J. 693 ; 27 L. J. Ch. 719 . . 23, li'ti XX TABLE OF CASES. PAGE Davies r. Parry, (1899) 1 Ch. 602 ; 68 L. J. C'h. 34(! . . . .116 r. Ridge, 3 Esp. 101 21S ?-. Williams, 34 C. D. 553 ; 56 L. J. Ch. 123 ; 55 L. T. 633 79, 196 Davis, Re, 4 S. & T. 213 . .. . 24 Ke, Evans r. Moore . . . . . ". . .196, 225 r. Spurling, 1 R. & M. 66 183 Dawson r. Kearton, 3 Sm. & G. 186 ; 25 L. J. Oh. 166 . . .112 Day, Re, 67 L. J. Ch. 619 . ". . "-...' 156 Dean, Ee, 21 C. I). 518 -. . . .41 - r. Allen, 1 Beav. 1 . . ... .' . . . . li4 De Chatelain r. Pontigny, 1 S. & T. 34 ..'..'. . . .31 DeCordovafcDeCordova,4App.Ca.692;4lL. T.43; 28W.R.105 91, 186 De Penny r. Christie, (1891) 2 Ch. 63,; 63 L. J. Ch. 518 ; 39 W. R. 517 10G 1 >e Rosaz, Re, 2 P. D. 66 ; 46 L. J. P, & M, 6 . . . . . 3, 6 Dendy, Re, 3 De G. F. & J. 350 127 Denton r. Davy, 1 Moo. P. C. 40 . 19<> Devitt v. Kearney, L. R. Ir. 13 C. D. 45 86 Dick tr. Fra^er, (1897) 2 Ch. 181 ; 66 L. .1. Ch. 630 ; 45 AV. R. 628 . 92 Dickinson, Re, (1891) P. 292 ; 60 L. J. P. 94 ; 64 L. T. 808 . . 22 - Re, (1884) W. N. 199 '.'.... . . .199 Dicks r. Hare, 44 C. D. 236 ; 59 L. J. Ch. 375 ; 62 L. T. 819 . .218 Digby v. Boycott, 4 Ha. 444 . . . . . . . . 136 Dinu-s r. Scott, 4 Russ. 195. 180 Dimsdale r. Budding, 1 Y. & C. 265 211 Din-le*. Coppen, 79 L. T. 693 . 121 Dix I-. Barford, 19 Beav. 409 ..." 134 - /. Reed, 1 S. & S. 237 . 127 Dixon v. Dixon, 9 C. D. 587 . . . 185 Dobbs r. Brain, (1892) 2 Q, B. 2.07 ; 61 L.. J. Q. B. 749 ; 67 L. T, 371 37 Dodds r. Tuke, 25 C. D. 617 ; 53 L. J. Ch. 598 ; 32 W. R. 424 . . 229 Dodgson, Re, 1 S. & T. 259 . . . . . . . .35 Dodson v. Sammell, 1 Dr. & Sm. 575 124 Doe v. Guy, 3 East, 120 . . 134,205 v. Sturgess, 7 Taunt. 233 . .135 Oollond v. Johnson, 2 Sm. & G. 301 . . . . . .110 Donald r. Bather, 16 Beav. 26 . . . . . . .221 Donovan, Re, 78 L. T. 567 22 Dnrnfbrd r. Dornford, 12 Ves. 130 178 honjrhtv r. Townson, 43 C. D. 1 ; 59 L. J. Ch. 18 ; 61 L. T. 531 ; 38 W. R. 48 125 Douglas r. Forrest, 4 Bing. 704 . 196 Dove r. Everard, 1 R. & M. 231 15 Dowdeswell r. Dowdeswell, 9 C. D. 294 221 TABLE OF CASES. \\i Dowse r. Gorton, (1891) 1 A. C. 190 ; 63 L. J. Ch. 745 ; 64 L. T. 809 ; 40 W. R. 17 174,201 Dowsett v. Culver, (1892) 1 Ch.210 ;,61 L. .1. Ch. 153 ; 66 L. T. 36<> 138 Doyle.r. Blake, 2 S. & L. 231 .. 13, 1M Dra-c ,-. H;trt..pp, 28 C. D. 414 . 192 Dre\vry v. Thaoker, 3 S\v. 543 211 Drohiiu i: Drohan, 1 B. & B. 185 ....... 89 Drue c. Baylie, 1 Frcem. 402 51, 84 Dudley r. Warde, Aiubl. 113 62 Duff's Case, 32 C. D. 301 163 Duncan, Re, (1899) 1 Ch. 387 ; 68 L. J. Ch. 253 ... 64, 158 - v t Lawson, 41 C. D. 394 ; 58 L. J. Ch. 502 ; 60 L. T. 732 ; 37 W. R. 524 149 - ,: Watts, 16 Beav. 204 126 Dnpleix t: De Roven, 2 Yern. 540 109 KAMKS DL Hacon, 18 C. D. 347 ; 50 L. J. Ch. 740 ; 29 W. R. 877 . 150 Karl, /,'. 1 P. & D. 450 ; 36 L. J. P. & M. 127 ; 16 L. T. 799 . . 3 Easton r. Landor, 67 L. T. 833 200 Eaton r. Dailies, (1894) \V. X. 32 ; 70 L. T. 761 . . . . 4, 207 K.-iv-> /. Hi, kson, 30 Beav. 136 142 K< . Ciu. r. X. K. l{ly.. 4 C. D. 860 226 Edmonds, jBxjjorfe, 30 W. R. 432 107 Edwards . Edwards, 10 Ha. App. 63 209 Klaml v. Medlund, 41 C. D. 476 ; 58 L. J. Ch. 572 : (0 L. T. 851 ; 37 W. |{. 7.-).-} 181 Elliott v. Dearsley, 16 C. D. 3-2-2 15(5 -r. Elliott 9 M. & W. 28; 11 L. J. Ex. 3 133 r. Kemp, 7 M. & W. 313 ; 10 L. J. Ex. 321 .... 44 El worthy r. Sandford, 3 H. & C. 330 . 12 Emm, t 9. Kiniii.-t, 17 C. D. 142 ; 50 L. J. Ch. 341 ; 44 L. T. 173 . 188 Etheri.l-v v. Womeialey, 29 C. D. 557 ; 33 W. 15. !J35 . . .198 Eton Coll. r. Beauchamp, 1 Ch. Cas. 121 74 European Ass. f. Radclitt'e, 7 C. D. 733; 26 W. . 417 ... 114 Kvsins, 7,V, 15 P. D. 215 ; 60 L. .T. P. Is : c:j L. T. 254 . . .30 - w. Evans, 34 C. D. 597 ; 56 L. T. 768 ; 35 W. H. 586 . . 202 - t: Jackson, 8 Sim. 217 ; 6 L. J. Ch. H 89 - v. Moore, (1891) 3 Ch. 119 ; 65 L. T. 128 ; 39 W. H. 524 196, 225 Everson v. Matthew, 3 W. R. 159 198 Ewer v. Corbet, 1 P. W. 148 86 Ewing, Re, I Hagg. 381 29 - r. Orr-Ewing, 9 App. (.'as. 34 ; 53 L. -I. ( 'li. 435 ; 50 L. T. 401 ; 32 W. R. 573 . 149, 150 TABLE OF CASES. piai FAIRCLOUGH r. Marshall, 4 Ex. D. 37 192 Farhall r. Farhall, 7 Cli. 123 ; 41 L. J. Ch. 147 ; 25 L. T. 685 ; 20 W. R. 157 170, 215 Farman, tfe, 57 L. J. Ch. 637 . . 217 Farr i\ Newman, 4 T. R. 621 45 Farrow r. Wilson, 4 C. P. 744 ; 38 L. J. C. P. 32(5 .... 64 Fawcett, Be, 14 P. D. 152 ; 58 L. J. P. 87 ; 61 L. T. 303 . . .31 Fawkes v. Gray, 18 Ves. 131 .-..-. . . , . .137 Fearns r. Young, 10 Ves. 184 201 Fell, Be, 2 S. & T. 126 24 Fells, Re, 4 C. D. 509 ; 46 L. J. B. 23 ; 36 L. T. 38 ; 25 W. R. 382 . 175 Ferguson v. Gibson, 14 Eq. 379 ; 41 L. J. Ch. 640 . . . .119 - v. Mahon, 11 A. & E. 179 109 Fernie, Re, 6 No. of Cas. 657 2 Ferns v. Carr, 28 C. D. 409 ; 54 L. J. Ch. 478 ; 52 L. T. 348 ; 33 W. R. 604 68 Fernside v. Flint, 22 C. D. 579 225 Field v. Peckett, 29 Beav. 576 177 - v. White, 29 C. D. 358 ; 54 L. J. Ch. 950 ; 52 L. T. 825 ; 33 W. R. 604 120, 177 Fielder r. Hanger, 3 Hagg. 769 21 Finlay r. Chirney, 20 Q. B. D. 494 ; 57 L. .1. (j. B. 247 ; 58 L. T. (504 (>(> Fisher v. Dixon, 12 Cl. & F. 312. . . . . ... .61 Flemings v. Jarrat, 1 Esp. 336 . 10 Fletcher v. Rodgers, 27 W. R. 96 197 Flockton-T. Bunning, 8 Ch. 323 186, 210 Flood v. Paterson, 29 Beav. 295 ; 30 L. J. Ch. 486 . . . .204 Fludyer, Re, (1898) 2 Ch. 562 ; 67 L. J. Ch. 620 ; 79 L. T. 298 ; 47 W. R, 5 115 Forbes r. Ross, 2 Cox, 43 . . 180 Ford v. Tynte, 2 J. & H. 150 58 Fordham v. Wallis, 10 Ha. 217 ; 22 L. J. Ch. 548 . . . .197 Forrest r. Prescott, 10 Eq. 545 152 Fosbroke v. Balguy, 1 M. & K. 226 ; 2 I,. J. Ch. 135 . . . .187 Foster, Re, 2 P. & D. 304 ' . . . 6 v. Bates, 12 M. & W. 226 ; 13 L. J. Ex. 88 . . . .43 - 7.'. Foster, 2 Bro. C. C. 616 . . . . . .212 Fotherby v. Pate, 3 Atk. 604 30 Fowler, Re, 16 C. D. 723 ', . .166 v. James, (1896) 1 Ch. 48 ; 65 L. J. Ch. 190 ; 73 L. T. 555 ; 44 W. R. 247 120 Fox v. Buckley, 3 C. D. 508 ; 25 W. R, 170 130 v. Fisher, 3 B. & A. 135 . 45 TABLE OF CASES. PACK Fox r. Garrett, 28 Beav. 16 ; 29 L. J. Ch. 423 ..... 119 Foy, Re, 73 L. T. 49 .......... 24 Franks r. Cooper, 4 Ves. 763 ........ 117 Fraser v. S. C. Co., 1 A. & E. 354 ....... 69 f. Murdock, 6 App. Cas. 855 ....... 139 Freeman r. Fairlie, 1 Mer. 24 ...... 208, 210, 212 Frewen r. Relfe, 2 Bro. C. C. 220 ....... 145 Friend, Re, 78 L. T. 222 ......... 143 Fry r. Fry, 27 Beav. 144 ; 28 L. J. Ch. 591 .... 16:i, 178 - r. Tapson, 28 C. D. 268 ; 54 L. J. Ch. 224 ; :>1 L. T. 320 ; 33 W. R. 113 ........... 182 Fryer, Re, 3 K. & J. 317 ......... 210 Fuge r. Fuge, 27 L. R. Ir. 59 ........ 146 Fulwood's Case, 4 Co. 65 a ........ 68 GADD, Re, 23 C. D. 134 ......... 215 ( iardiner, Re, 9 P. D. 66 ; 53 L. J. P. 31 ; 32 W. R. 756 . . . 29 Garland, Ex parte, 10 Ves 110 ....... 174,202 Garner ?. Moore, 3 Dr. 277 ; 24 L. J. Ch. 687 ; 3 W. R. 497 . 89, 179 Garrard r. Garrard, 2 P. & D. 238 ; 19 W. R. 569 . . . 13, 15 Garrett r. Noble, 6 Sim. 504 ; 3 L. J. Ch. 159 ..... 174 (iartlishore r. Chalie, 10 Ves. 13 ........ 136 Gaskell r. Marshall, 5 C'. & P. 31 ....... 46 Gasquoine r. Gasquoine, (1894) 1 Ch. 470; 63 L. J. Ch. 377; 70 L. T. 196 ........... 184 (iaynor, He, 1 P. & D. 723 ; 38 L. J. P. 79 ...... 27 ( Jeary r. Beaumont, 3 Mer. 431 ........ 214 Gibson, Re, 1 P. & D. 105; 35 L. J. P. 114 ..... 15 Gilbert, Re, (1898) 1 Q. B. 282 ; 67 L. J. Q. B. 229 ; 77 L. T. 775 ; 4<; \V. R. 351 ......... 47, 115 Giles, Re, 34 W. R. 712 ......... 203 Be, Jones r. Pennefather ...... 116,119 - r. Dyson, 1 Stark. 32 ........ 146 Gill, Re, 3 P. &D. 113 ......... 15 Gillespie r. Alexander, 3 Russ. 130 ....... 126 Gittins i'. Steele, 1 Sw. 199 ........ 144 Gj.-rs, Re, (1899) \V. X. 77 ........ 167 Gladstone, Re, (1888) W. X. IK:, ....... 218 Glass P. Oxenham, 2 Atk. 121 . . . ... . . .221 Gleadow v. Atkin, 2 Cr. & J. 548 ; 1 L. J. Ex. 228 . . . . 95 Goodman, AV, 17 C. I). 266 ; 50 L. J. Ch. 4^5 ; 44 L. T. 527 ; 29 \V. R. 586 ........... 148 i win, Kf part?, 1 Atk. 100 ........ 241 TABLE OF CASES. PAGK Goold, Re, 4 S. & T. 20 ; 34 L. J. P. 105 . . . , . . 36 Gordon v. Trail, 8 Pr. 416 . . ..... . . ,191 (Jough v. Gough, (1891) 2 Q. B. 665 . . . '. . . . 59 Grant, Re, I P. D. 435 . . . .... . .83 - v. Grant, 1 P. & D. 654 ; 38 L. J. P. 55 . . . . . 31 Granville v. M'Neille, 7 Ha. 156; 18 L. J. Ch. 164 . . . .16 Gray v. Siggers, 15 C. D. 74 ; 29 W. R. 13 ; 19 L..J. Ch. 819 . . 181 Grayburn v. Clarkson, 3 Ch. 605 ; 37 L. J. Ch. 550 ; 18 L. T. 495 159, 179 Graysbrook v. Fox, 1 Plowd. 279 . , , . . . .40 Greaves, Re, 18 C. D. 551 ; 50 L. J. Ch. 817 ; 45 L. T. 464 . 196, 222, 226 Green, Ex parte, 1 Jac. & W. 253 140 Gregory v. Williams, 3 Mer. 590 . . . ... . .171 Gregson, Re, Christison v. Bolam 193 Greig r. Somerville, 1 R. & M. 338 . .... . .126 Gray v. Stamford, (1892) 3 Ch. 98 ; 61 L. J. Ch. 622 ; 41 W. R. 60 . 149 Griffin, e, 79 L. T. 422 217 Griffiths, Re, 26 C. D. 465 229 - v. Hamilton, 12 Ves. 298 . 38 - v. Lewis, 26 C. D. 465 . . ... . . . 229 - v. Pruen, 11 Sim. 202 . . , . . . .129 Grove v. Price, 26 Beav. 103 . . . . ' ; . . . .178 Groves v. Levi, 9 Ha. App. 47 . . . . . . . 206, 221 Guidon v. Badcock, 6 Beav. 159 ; 12 L. J. Ch. 62 .... 213 Gnrney, Re, Clifford v. Gurney, (1896) 2 Ch. 863 . . . .109 Gwyer r. Peterson, 26 Beav. 83 . . . ' . ' . . . . 220 HALDENBY v. Spofforth, 9 Beav. 195 229 Hall, Re, 33 W. R. 508 215 v. Andrews, 29 W. R. 799 87 v. Austin, 2 Coll. 570 222 -v. Elliott, Peake, N. P. C. 119 10 - v. Hallett, 1 Cox, 134 88, 186 - v. Huffam, 2 Lev. 228 . . . . . . . . 160 Hallett, Re, 13 C. D. 696 . . . 47 - v. Hallett, 13 C. D. 232 . . . . . . . . . 193 Halliwell, Re, 10 P. D. 198 ; 54 L. J. P. 32 ; 33 W. K. 371 . . 36 Haly v. Barry, 3 Ch. 452 ; 18 L. T. 490 ; 16 \V. R, 654 . . .198 Hammond, Re, 6 P. D. 104 ; 50 L. J. P. 70 ; 44 L. T. 649 ; 29 W. R. 807 33 Hampson, Re, 35 L. J. P. 1 33 Hanbury v. Spooner, 5 Beav. 630 ; 12 L. J. Ch. 434 . 127 TABLE OF CASES. XXV PAGE Hanki-y, R>', (1899) 1 Ch. 541 ; 68 L. J. Oh. 242 ; 80 L. T. 47 . . 11 5 Hankin r. Turner. See Re Ivory . 38 Hannay r. Basham, 23 C. D. 195 ; 52 L. J. Ch. 408 ; 48 L. T. 470 ; 31 W. R, 743 228 Hanson r. Stubbs, 8 C. D. 155 ; 47 L. J. Ch. 671 ; 26 W. R. 73(5 . 109 Harbin i: Darby, 28 Beav. 325 ; 29 L. J. Ch. 622 ... 189, 191 Harcourt r. White, 28 Beav. 809 224 Hardy, Re, 17 C. D. 798 131 Han-, lie, 6 Bing. 163 72 Harford r. Browning, 1 Cox, 302 . . . ... . .129 Hargreaves, Re, Dicks v. Hare 218 - r. Mitchell, 6 Madd. 326 224 Harkness and Allsopp, Re, (1896) 2 Ch. 358 ; 65 L. J. Ch. 726 ; 74 L. T. 652 ; 44 W. R. 683 78, !)0 Harman r. Harman, 2 Show. 492 105 Harper, Re, (1899) P. 59 26 Harrald, 7tV, 52 L. J. Ch. 436 217 Harris, 7iV, 2 P. & D. 83 7 - /-. Saundcrs, 4 B. & C. 411 .109 Harrison, Re, 30 C. D. 390 39 /,'-, 34 r. U. 214 167 - If,-, Lutiim-r r. Harrison, 32 C. D. 395 .... 116,119 - v. Harrison, 2 H. & M. 237 ; 33 L. J. Ch. 647 ... 146 - r. Rowley, 4 Ves. 212 128 Harris* c. Fawcett, 15 Ec[. 311 168 Hartley, Re, (1899) P. 40 ; 68 L. J. P. 16 ; 47 W. R. 287 . . 25. 75 Harvey r. Harvey, 2 Stra. 1141 61 Hastings, Re, 4 P. D. 73 24 - 7,v, Shirreff v. Hastings, 6 C. D. 610 Ill Hatchard r. Mcge, 18 Q. B. D. 771 ; 56 L. J. Q. B. 3!)7; "><; L. T. (i<;2 65 HathornthwaitL- v. Russell, 2 Atk. 127 207 Havers r. Havers, Barnard. 23 29 Hawkins, Re, 33 Beav. 570; 34 L. J. Ch. 80 127 Hay, Re, 1 P. & D. 51;35L. J. P. 3; 13 L. T. 335; 14 W. R 147 . 22 - r. Bowen, 5 Beav. 616 199 Haymes v. Matthews, 1 S. & T. 460 23 Haynes, Re, 3 Curt. 75 1 Hearn r. Wells, 1 Coll. 333 47 Heath v. Chilton, 12 M. & W. 632 50 H.-dges v. Hedges, Prec. Ch. 269 <">-' Heigliington v. Grant, 5 M. & Cr. 258 KS8 Henderson, Re, 2 Times R. 322 2iT, v. M'lver, 3 Madd. 275 . . H) XXvi TABLE OF CASES. PACK. Henderson-Roe v. Kitchen, 42 C. D. 302 ; 58 L. J. Ch. 860 ; 61 L. T. 363 ; 37 W. R. 705 . . . . '. . . . . .140- Henry v. Lewis, 22 C. D. 397 197 Herbert r. Pigott, 2 C. & M. 384 91 Herlakenden's Case, 4 Co. 63 58- Hertford r. Lichi, 9 Beav. 11 . .222 Hewes r. Hewes, 4 Sim. 1 211 Hewett r. Foster, 6 Beav. 259 . -. 183 Hey wood, Re, (1897) 2 Ch. 593; 67 L. J. Ch. 25; 77 L. T. 423; 46 W. R. 72 . . 107, lia Hibernian Bank r. Lander, (1898) 1 Ir. R. 262 . ; . . 200, 229 Hickling r. Boyer, 3 Mac. & G. 635 . . 168 Hill's Case, 20 Eq. 585 ; 44 L. J. Ch. 423 ; 32 L. T. 747 ; 23 W. R. 646 163^ Hill r. Curtis, 1 Eq. 90 ; 35 L. J. Ch. 133 11 - r. Gomine, 1 Beav. 540 176 v. Simpson, 7 Ves. 152 87 Hillersden r. Grove, 21 Beav. 518 14& Hilliard v. Fulford, 4 C. D. 389 ; 46 L. J. Ch. 43 .... 144 Hinings v. Hinings, 2 H. & M. 32 141 Hirst v. Smith, 7 T. R. 182 50- - v. Tolson, 2 Mac. & G. 134 ; 19 L. J. Ch. 441 .... 168 Hitchen v. Birks, 10 Eq. 471 ; 18 W. R. 1015 32 Hodgkinson, Re, (1895) 2 Ch. 190 227 Hodgson, Re, Beckett v. Ramsdale 160, 217 - v. Fox, 9 C. D. 673 ; 48 L. J. Ch. 52 ; 27 W. R. 38 . . . 121 Holden r. Kynaston, 2 Benv. 204 222 Holland v. Prior, 1 M. & K. 237 222 Hollingsworth r. (irasett, 15 Sim. 52 128 Holli.s r. Smith, 10 East, 293 . . .' 69 Holme ?:. Hammond, L. R. 7 Ex. 218; -20 W. R. 747 . . . . 175 Hood, Re, (1896) 1 Ch. 270 202 Hooper v. Summersett, Wightw. 16 10 Hope v. Hope, (1892) 2 Ch. 33(3 ; 61 L. J. Ch. 441 ; 6(5 L. T. 522 ; 40 W. R. 522 . . . 57 Hopkinson v. Roe, 1 Beav. 180 190- Horrell r. Witts, 1 P. & D. 103 ; 35 L. J. P. 55 ; 14 L. T. 258 . . 31 Horsley r. Chaloner, 2 Ves. Sen. 85 212; Hoskin, lie, 6 C. D. 281 ; 46 L. J. Ch. 817 ; 35 L. T. 935 ; 25 W. R, 779 151 Houghton r. Franklin, 1 S. & S. 390 137 Houseman v. Houseman, 1 C. D. 535 ; 34 L. T. 633 ; 24 W. R. 592 . 41 Hovey r. Blakeman, 4 Ves. 596 184 How v. Winterton, (1892) 2 Ch. 626; 65 L. J. Ch. 832; 75 L. T. 40; 45 W. R. 103 . 196- TABLE OF CASES. XXVll PAOK Howard v. Baillie, 2 H. Bl. 618 173 Howe v. Dartmouth, 7 Yes. 137 181 Hubback, Re, 29 C. D. 934 118 Hughes v. Coles, 27 C. D. 231 225 - v. Empson, 22 Beav. 181 179, 181 - v. Wynne, 1 T. & R. 307 223 Hulkes, Re, Powell v. Hulkes, 33 C. D. 552 . . .142, 185, 188 Hull r. Christian, 17 Eq. 546; 22 W. R. 61 1 129 Humberston r. Humberstou, 1 P. W. 332 128 Hume v. Lopes, (1892) A. C. 112; 61 L. J. (Mi. 423; 66 L. T. 425 ; 40 W. R. 593 181) Humphrey r. Moore, 2 Atk. 108 200 Hunt, Re, (1896) P. 288 ; 66 L. J. P. 8 ; 45 W. R. 236 . . .2, 36 - /. Wenham, (1892) 3 Ch. 59; 61 L. J. Cli. 565; 67 L. T. 648; 40 W. R. 636 114,117 Hunter v. Young, 4 Ex. D. 256; 41 L. T. 142 ; 27 \V. R. 657 125, 203, 223 Hursell v. Bird, 65 L. T. 709 10 Huttoii r. Rossiter, 24 L. J. Ch. 106 212 Hyam r. Helm, 24 C. D. 531 197 Hyatt, Re, Bowles v. Hyatt, 38 C. D. 609 214 Hyslop r. Chamberlain, (1894) 3 Ch. 522 ; 64 L. J. Ch. 168 . . 122 IHLER, Re, 3 P. & D. 50; 42 L. J. P. 18 ; 28 L. T. 479; 21 W. R. 550 23 Illidge, Re, Davidson r. Illidge . . . . . . . .117 Ingle r. Partridge, 34 Beav. 411 209 - r. Richards, 28 Beav. 366 22*; Jngleby, Re, 13 L. R. Ir. 326 95 Irby t: Irby, 24 Beav. 525 114 Irvin r. Ironmonger, 2 R. & M. 531 137 Irving, Re, 1 P. & D. 658 ; 35 L. J. P. 83 ; 20 L. T. 6S4 . . 37 Isted ?. Stanley, Dyer, 372 19 Ivory, Re, Hankin r. Turner 38 JACKSON r. Paulet, 2 Rol>. 344 6 - v. Tiirqnand, L. R. 4 H. L. 305 163 - r. Whitehead, 3 Phillim. 577 15 Jncumb r. Harwood, 2 Yes. Sen. 265 ....... 91 James, Ks jHirte, 8 Yes. 346 187 Es jxu-tc, 9 Ch. 609 45 - r. Buena, &c., (1896) 1 Ch. 456 ; (55 L. J. < 'h. 284 ; 74 L. T. 1 ; 44 \V. H. 372 162 - r. Dean, 1 1 A'es. 33 .54 Jay r. Johnstone, (1893) 1 y. B. 189 224 TABLE OF CASES. I'AGK Jenks r. Clifden, (1897) 1 Ch. 694; 66 L. J. Cli. 338; 76 L. T. 382; 45 W. R. 4-24 . . . . . ... . . 65 Jenney r. Andrews, 6 Madcl. 264 . 73 Jennison r. Lexington, 1 P. W. 555 68 Jervis r. Wolferstan, 18 Eq. 18; 43 L. J. Ch. 809; 30 L. T. 452 123, 143 Jesse v. Bennett, 6 De G. M. & G. 609 206 Job r. Job, 6 C. D. 562; 26 W. R. 206 . ,-. . . . 151, 179 Jobson P. Palmer, (1893) I Ch. 71 .' 182 John v. Bradbury, 1 P. & D. 245 29 - t>. John, (1898) 2 Ch. 573; 67 L. J. Ch. 616; 79 L. T. 362; 47 W. R. 52 . . . 75 Johnson, Re, I Ch. 325 . 207 Re, Shearman r. Robinson . . . . . . .174 - Re, Sly v. Blake . . . 196,224 - r. Mills, 1 Ves. Sen. 282 138 Johnston v. Aston, 1 S. & S. 73 ., 208 Jolliffe, Ex parte, 8 Beav. 168 ; 14 L. J. Ch. 134 38 Jones, Re, 2 S. & T. 155 . 4 Re, Calver v. Laxton 115 Re, Christmas r. Jones . . . . . . . .121 - v. Evans, 2 C. D. 420 ; 24 W. R. 778 . . . 116 - v. Jukes, 2 Ves. Sen. 518 .114 v. Lewis, 2 Ves. Sen. 240 179 - v. Morrell, 2 Sim. 252 187 - v. Pennefather, (1896) 1 Ch. 956 ; 65 L. J. Ch. 419 ; 74 L. T. 21 ; 44 W. R. 283 . . . . . . . 116,119 - v. Simes, 43 C. D. 607 ; 59 L. J. Ch. 351 ; 62 L. T. 447 . 195 -'v. Stohwasser, 16 C. D. 177 ; 50 L. J. Ch. 624 ; 44 L. T. 333 ; 29 W. R. 497 87 - r. Strafford, 3 P. W. 88 . .29 Joseph, Re, 1 R. & M. 496 172 Joy r. Campbell, 1 S. & L. 339 189 J libber i: Jubber, 9 Sim. 503 129 KAY, Re, (1897) 2 Ch. 518 ; 66 L. J. Ch. 759 ; 46 W. R. 74 . . 125 KcL-ne v. Dee, 1 Al. & N. 496 43 Kellow r. Westcombe, 1 Freem. 122 JO Kelly ?. Kelly, 8 Ir. Eq. 403 167 Kemp P. Westbrook, 1 Ves. 278 71 Kenny ,<. Ryan, (1897) 1 Ir. R, 513 11 Kent r. Pickering, 2 Keen, 1 ; 6 L. J. Ch. 375 120 Ki.ld r. Kidd, (1894) W. N. 73 ; 70 L. T. 648 ; 42 W. R, 571 . . 174 TABLE OF CASES. XXIX FAOE Kimlerley o. Jarvis, 22 Beav. 23 46 King,, Re, 8 P. D. 162 ; 31 W. R. 843 27 - r. Jones, 4 M. & S. 188 66 - v. St. Dunstan, 4 B. & C. 686 61 Kingston, Ex parte, 6 Ch. 632 182 Kirby's Case, 15 Sol. J. 922 . 164 Kirkman r. Booth, 11 Beav. 273 ; 18 L. .T. Ch. 75 . . . 174, 190 Kitchen r. Ibbetson, 17 Eq. 46 45 Klccbe, Re, 28 C. D. 175 ; 54 L. J. Ch. 297 ; 52 L. T. 19 ; 33 W. R, 391 106, 150 Knapman r. Wreford, 18 C. D. 300 ; 50 L. J. Ch. 629 ; 45 L. T. 102 121, 194 Knatchbull r. Feariihead, 3 M. & Cr. 120 199- .Knight, I!,; 2(5 C. D. 82 . 228- - t>. Roberts, 76 L. T. 479 ... . . . . . . 178 Knolle'8 Case, Dyer, 5 68 Kuox, lie, (1895) 2 Ch. 483 200- LABOUCHERK r. Tapper, 11 Moo. P. C. 198 ; 5 \V. R. 797 . . . 201 Laing, Re, (1899) 1 Ch. 232 179- Laml'ueo i: Cassavilli, 11 Eq. 439 220 Lambardi r. OKler, 17 Beav. 542 193 Lambert, 7tV, Staiiton r. Lambert 147 Laming r. Gee, 10 C. D. 715; 48 L. J. Ch. 196 ; 40 L. T. 33 ; 27 W. R. 227 191, 210' Land Credit, Re, (1872) AV. N. 210 203 Land r. Land, 43 L. J. Ch. 311 174 Langford, Re, I P. & D. 458 ; 37 L. J. P. 20 6 - r. Mahoney, 4 Dr. & "W. 107 50 Langley, Re, (1899) W. N. 23 ; 68 L. J. Ch. 361 116 Latch v. Latch, 10 Ch. 464 ; 44 L. J. Ch. 445 ; 23 W. R. 686 . 198, 205 Latimer v. Harrison, 32 C. D. 395 ; 55 L. J. Ch. 687 ; 34 W. R. 736 . 116 Laundy r. Williams, 2 P. W. 478 136- Laury r. Aldred, 2 Brownl. & G. 183 12 Laver v. Botham, (1895) 1 Q. B. 59 ; 64 L. J. Q. B. 110 ; 71 L. T. 570 107, 120 Lawton r. Lawton, 3 Atk. 13 62 Lazonby v. Rawson, 4 D. M. & G. 536 ' 212 Leach, Be, 80 L. T. 170 . . ' . . . . . 36 Leask, Re, (1891 )W. N. 159 204,218 Lee, Re, (1898) 2 Ir. R. 81 29- - v. Binns, (1897) 2 Ch. 584 ; 65 L. ,7. ( 'li. 83 ; 75 L. T. 99 . . 21 c. Brown, 4 Yes. 362 . . . . . . .141 XXX TABLE OF CASES, PAGE Lee r. Wilson, (1892) 1 Ch. 86 ; 61 L. J. Ch. 38 ; 40 W. R. 204 . 186 Leeke, Ex parte, 2 Bro. 597 214 Lcggott r. G. N. Ky., 1 Q. B. D. 599 ; 42 L. J. Q. B. 557 ... 66 Leman, Re, (1898) P. 215 . . . . 22 Leng, Re, Tarn r. Emmerson , .118 Lepine, Re, Dowsett v. Culver . . . ... . .138 Leven v. Melville, 15 P. D. 22 ; 59 L. J. P. 35 5 Leveson v. Beaks, (1891) 3 Ch. 422 ; 60 L. J. Ch. 793 ; 65 L. T. 406 122 Lewis r. Lewis, 13 Beav. 82 H>1 v. Matthews, 8 Eq. 277 ; 38 L. J. Ch. 510 .... 128 v . Nobbs, 8 C. D. 591 ; 47 L. J. Ch. 662 ; 26 W. R. 631 . 183 v. Trask, 21 C. D. 864 , ' , . . . . . 228 Lighten, Re, 1 Hagg. 235 . ... , . . . . . 6 Lincoln v. Windsor, 9 Ha. 158 189 v. Wright, 4 Beav. 427 184 Liverpool, &c. r. Walker, 4 De G. & J. 24 . . . . . .160 Livesey v. Livesey, 3 Russ, 287 ...-,.... 144 Lloyd r. Mason, 4 Ha. 132 106 Lloyd's v. Harper, 16 C. D. 219 ; 50 L. J. Ch. 140 ; 43 L. T. 408 . 168 Loane r. Casey, 2 W. Bl. 965 . . 120 Lonergan v. Hoban, (1896) 1 Ir. R. 401 . . . . . .84 Long r. Symes, 3 Hagg. 774 15 Lord-Adv. v. Fleming, (1897) A. C. 145 99 Lord r. Purchase, 17 Beav. 171 209 Lorimer, Be, 2 S. & T. 473 ; 31 L. J. P. 189 8, 13 Love, Re, 29 C. D. 348 228 - r. Honeybourne, 4 D. & R. 814 . . . . . . . .172 Lovett, lie, Ambler v. Lindsay 206 Low, Re, (1894) 1 Ch. 147 110 - v. Bouverie, (1891) 3 Ch. 82 ; 60 L. J. Ch. 594 ; 65 L. T. 533 ; 40 W. R. 50 186 Lowe, Re, 60 L. T. 599 . . ... . . . . 134 - Re, 3 S. & T. 478 ; 33 L. J. P. & M. 155 . . . . . 6 - v. Peskell, 16 C. B. 500 . , 122 Lowis v. Rumney, 4 Eq. 451 177 Lowry, Re, 3 P. & D. 157 ; 43 L. J. P. 34 ; 22 W. R, 352 ; 30 L. T. 695 5 - r. Futton, 9 Sim. 115 221 Lucey r. Walrond, 3 Bing. 841 ; 6 L. J. C. P. 290 . . .173 Luke r. Tonkin, 21 C. D. 757 ; 46 L. T. 684 ; 30 W. R. 874 . . 191 Lunhain r. Bltmdell, 4 Jur. N. S. 3 182 Lynch v. Bellew, 3 Phillim. 424 7 TABLE OF CASES. XXXL PAGE Lyon r. Baker, 5 De G. & S. 622 189 Lysayht /. Edwards, 2 C. D. 499 167 Lyitc-ltoii <. Cross, 3 B. &C. 322 113 M'KwAN v. Crombie, 25 C. D. 175 228 M'Fc-rran . M'Ferran, (1871) 1 Ir. R. 66 218 M'Leod r. Drummond, 17 Ves. 168 46, 87 M -Mullen r. O'Reilly, 15 Ir. Ch. R. 251 86 M'Myn, Re, Ligfatbown r. M'Myn 104 M'Nuillie r. Acton, 4 D. M. & G. 744 ; 23 L. J. (Jh. 11 ; 2 L. T. Ill 86, 2H2 M-K.-a, Re, 32 C, D. 613 219 MacJonald, Re, Dick v. Fraser 92 Mm kenzie r. Taylor, 7 Beav. 467 180 Maclean r. Dawson, 27 Beav. 369 204 Macpherson r. Maephersou, 1 H. L. C. 243 183 Maddisnn r. Andrew, 1 Ves. Sen. 59 71 i. 7,Y, 20 C. D. 54.5 ; 51 L. J. Ch. 560 ; 46 L. T. 432 ; 30 W. R. < . 108 Mnndur v. Harris, 27 C. I). 169 ; 54 L. J. Cli. 143 ; 51 L. T. 380 ; 32 W. R. 941 2 Mann, AY, (1891) P. 293 ; 60 L. J. P. 95 ; 40 \V. R. 141 . . . 35 Manning, Re, 30 C. D. 480 215 - r. Purcell, 5 D. M. & U. 55 39 Manael, lif, 33 W. R. I'll 215 Mara r. Browne, (1896) 1 Ch. 199 182 Markwi-11's 2 190 May, Re, Crawford v. May, 45 C. D. 499; 60 L. J. Ch. :*l : <::] L. T. .575 ; 38 W. R. 765 108, 115, 118 9. Newton, 34 C. D. 345 223 M aver, Re, 3 P. & D. 39 ; 42 L. J. P. 57 ; 29 L. T. 247 . . 24 TABLE OF CASES. PAGE Mayer r. Murray, 8 C. D. 424 . 119 May hew, Be, 5 C. D. 596 ; 46 L. J. Gh. 552 ; 37 L. T. 48 ; 25 W. R. 521 . . .229 Mayor of B. ,: Murray, 7 D. M. & G. 497 188 Mi-iid r. Om-ry, 3 Atk. 237 87, 132 Me. Hand, fie, Eland v. Medland 181 Mendes r. Guedella, 2 J. & H. 259 . . . ., . . .183 Mi>ey, &c. r. Xaylor, 9 Q. B. D. 648 108 Mi-ssenger r. Andrews, 4 Russ. 478 . . . . . . .129 Mctcalfe, Rt, 1 Add. 343 .... . . . - .35 -Re, 13 C. D. 236 . . 126 Meyrick r. Anderson, 14 Q. B. 719 11 Midgley r. Crowther, (1895) 2 Ch. 56 ; 64 L. J. Ch. 537 ; 72 L. T. 762 ; 43 W. R. 571 . . .181 r. Midgley, (1893) 3 Ch. 282 ; 62 L. J. Ch. 905 ; 69 L. T. 241 ; 41 W. R. 659 . 114, 117 Mid. Rly. Co. r. Silvester, (1895) 1 Ch. 572 ; 64 L. J. Ch. 390 . . 168 Miles r. Durnford, 2 D. M. & G. 641 95 Miller r. Douglas, 56 L. J, Ch. 91 ; 56 L. T. 583 : 3T> W..R. 122 . . 93 Mills v. Roberts, 1 R. & M. 555 143 Milnes r. Sherwin, 33 W. R. 927 . . 79 Mohuraidu r. Pitchey, (1894) A. C. 437 ; 63 L. J. P. C. 90 ; 71 L. T. 99 . . . 14, 38, 205 Molony r. Brooke, 45 C. D. 569 ; 59 L. J. Ch. 810 ; 63 L. T. 521 ; 39 W. R. 139 178, 207 Monk, He, 35 C. J). 588 ; 56 L. J. Ch. 809 ; 56 L. T. 856 ; 35 \V. R. 691 113 Monsell r. Armstrong, 14 Eq. 423 ; 41 L. J. Ch. 415'. . . .30 Moody, Ex parte, 2 Rose, 413 . . ... . . . 214 Moore, Re, (1891) P. 299 ; 60 L. J. P. 98 22 - Be, (1892) P. 145 ; 61 L. J. P. 119 24 -r. Morris, 13 Eq. 140 206' r. Petchell, 22 Bear. 172 . . '.' 224 Morant, He, 3 P. & D. 151 ; 43 L. J. P. 16 15 Mordaunt v. Clarke, 1 P. & D. 592 ; 38 L. J. P. 45 ; 19 L. T. 610 . 13 More's Case, Cro. Eliz. 26 89- Morewood r. Currey, 28 W. R. 213 . . . . . . .212 Morgan, Re, 18 C. D. 93 ; 50 L. J. Ch. 834 ; 45 L. T. 183 ; 30 W. R, 223 . . . . . .... . 46, 85, 167 - r. Abergavenny, 8 C. B. 768 . . . . . .58 - ?. Richardson, (1896) 1 Ch. 512 ; 65 L. J. Ch. 512 ; 74 L. T. 12 13& r. Thomas, 8 Exch. 302; 22 L. J. Ex. 131 .... 21 Morison r. Morison, 4 M. & Cr. 216 . 190- TABLE OF CASES. XXXlll PAOI M..n-i> r. Morris, 10 C'h. 68 ; 44 L. J. Ch. 178; 31 L. T. 41)1 ; 23 W. R. 120 IL>O Muitinu-r r. Paull, 2 P. & D. 85 ; 39 L. J. P. 47 ; 18 W. R. 901 . 31 Bfortlock v. Leathes, 3 Her. 491 208,212 Motley ?. Rendall, L. R. 6 Q. B. 338; 40 L. J. g. B. Ill . . . 193 Moses v. Levi, 3 Y. & C. 359 .183 Mountford r. Gibson, 4 East, 440 . 9, 12 Moyk- r. Movie, 2 R. & M. 710 . ..-.-. . . 182,184 Muggeridge, He, 10 Eq. 443 ; 39 L. J. Ch. 620 ; 18 W. R. 963 . . 161 Munns r. Burn, 35 C. D. 266 ; 35 W. R. 790 T . . . .196 Murguia, Be, 9 P. D. 236 ; 53 L. J. P. 47 ; 32 \V. R. 799 ... 8 Murray r. E. J. Co., 5 B. & Al. 204 . . . . . . ' . 42 -- 77. Sanger, (1873) W. N. 79 . 128 NARES, Be, 13 P. D. 35 . . . . . . . . .22 Nation v. Tozer, 1 C. M. & R. 174 ; 3 L. J. Ex. 234 ... . . 93 Neeves r. Barrage, 14 Q. B. 504 ; 19 L. J. Q. B. 68 . . . . 89 Neil, Re, (1882) W. N. 46 214 - Re, 62 L. T. 649 218 Nelson r. Searle, 4 M. & W. 7!.', 171 New Z., &c. v. Peacock, (1894) 1 Q. B. 622 ; 63 L. J. Q. B. 227 ; 70 L. T. 110 162 Newman r. Barton, 2 Vern. 205 . . . . . . . .143 Newton, Re, 3 Curt. 428 35 v. Chapman, 27 C. D. 584 ; 51 L. T. 748 ; 33 W. K. 236 . 189 - r. Met. Ry. Co., 1 Dr. & S. 583 18 - v. Sherry, 1 C. P. D. 246 ; 45 L. J. C. P. 257 ; 34 L. T. l^l . 1 1'.'i Nk-holls ?. Jiulson, 3 Atk. 301 205 Nichols v. Baker, 44 C. T). 262 ; 59 L. J. Ch. 661 ; 62 L. T. 817 ; 38 W. R. 417 115, 221 Nicholson, Be, (1895) W. N. 106 . ' 188 Nickels, Re, (1898) 1 Ch. 630 ; 67 L. J. Ch. 40(5 ; 78 L. T. 37!t ; 46 W. R. 422 138 Nield v. Smith, 14 Ves. 491 168 Nightingaje r. Lawsou, 1 Cox, 23 201 Nokes v. Seppings, 2 Phill. 19 208 Norburn v. Norbnrn, (1894) 1 g. B. 448 ; <;:{ I. .1. g. B. 341 ; 70 L T. 411 . . 110, 159 Norrington, Re, Brindley v. Partridge 179, 181 Northard r. Proctor, 1 C. D. 4 206 Northey r. Cock, 1 Add. 329 31 Norton v. Compton, 30 C. D. \:> ; 54 L. .1. ('!.. 9U4 . . . .115 - r. Dashwood, (1896) 2 Ch. 497 61 L.R. c XXXIV TABLE OF CASES. PAGE Norton v. Turvill, 2 P. W. 145 211 Nunn v. Barlow, 1 S. & S. 588 116 Nussey, Re, 78 L. T. 169 4 Nutter v. Holland, (1894) 3 Ch. 408 209 OAKEY, Re, (1896) P. 7 ; 65 L. J. P. 38 ; 44 W. R. 432 . . . 36 v. Dalton, 35 C. D. 700 ; 57 L. T. 18 ; 35 W. R. 709 . 65, 195 Oceanic, &c. v. Sutherberry, 16 C. D. 243 ; 50 L. J. Ch. 308 ; 43 L. T. 743 . 78, 88 Oliphant, Re, 1 S. & T. 525 5 Oriental Bank, Re, 28 C. D. 643 . 108 Orleans, Re, 1 S. & T. 255 .29 Orpen, Re, Beswick v. Orpen 121, 194 Orr v. Kaines, 2 Ves. Sen. 194 . .143 v. Newton, 2 Cox, 274 _ . . 15, 185 Ottley v. Gilby, 8 Beav. 602 ; 14 L. J. Ch. 177 186 Overington v. Ward, 34 Beav. 175 207 Owen, Re, Poe v. Shortt, L. R. Ir. 23 C. D. 328 119 - Re, 66 L. T. 718 229 - v. Delamere, 15 Eq. 139 ; 42 L. J. Ch. 232 ; 27 L. T. 647 ; 21 W. R. 218 215 r. Richmond, (1895) W. N. 29 188 Oxenham v. Clapp, 2 B. & Ad. 309 . . . ... . 12 PADGET v. Priest, 2 T. R. 97 11 Page v. Page, 2 P. W. 488 . . . 145 Palmer v. Reiffenstein, 1 M. & G. 94 72 Paradice v. Shepherd, 1 Dick. 136 198 Parker v. Ringham, 33 Beav. 535 . 109 Parker's Trusts, Re, (1894) 1 Ch. 707 ; 63 L. J. Ch. 316 ; 70 L. T. 1(!5 . . . . .' 39,75 Parkin, Re, (1892) 3 Ch. 510 -. . .168 Parsons v. Parsons, 8 Eq. 260 ; 17 W. R. 1005 .... 67, 137 - v. Saffery, 9 Pr. 578 146 Partington v. Att.-Gen., L. R. 4 H. L. 109 21 Patten v. Patten, 1 Al. & N. 493 43 - r. Reid, 6 L. J. Q. B. 281 166 Paiiil v. Simpson, 9 Q. B. 365 ; 15 L. J. Q. B. 382 . . .10 Paxton, Re, 14 P. D. 40 ; 58 L. J. P. 55 ; 60 L. T. 513 . . . 36 Payne i. Evans, 18 Eq. 356 186 v. Little, 22 Beav. 69 200 213 - r. Mortimer, 4 De G. & J. 447 ; 28 L. J. Ch. 716 . . ' 112 r. Tanner, 55 L. J. Ch. 611 ; 34 W. R. 314 213 TABLE OF CASES. XXXV PAGE Peacock r. ( 'oiling, 54 L. J. Ch. 743 228 Peake v. Ledger, 8 Ha. 213 . . . .' . . . ... 198 Pearce e. Radclytt'e, r>0 L. J. Ch. 317 ; 44 L. T. 96 ; 29 W. R. 420 . 186 Pearson r. Henry, 5 T. R. 6 .. . . . '. . . .172 c. Parrott, 1 Ves. Sen. 236 71 - v. Pearson, 1 S. & L. 11 142 P.rk K Gurney, L. R. 6 H. L. 377 ; 43 L. J. Ch. 19 ; 22 W. R. 29 . 164 Peel, Re, 2 P. & D. 46 ; 39 L. J. P. 36 ; 22 L. T. 417 ... 4 Pemberton /. Barnes, (1899) 1 Ch. 544 75 Penny r. Penny, 11 C. D. 440 104 - .-. Watts, 2 Phill. 149 ; 16 L. J. Ch. 146 .... 204 Peppercorn v. Way man, 5 De G. & S. 230 94 Perry r. Phillips, 10 Ves. 34 Ill Philanthropic Soc. K. Hobson, 2 M. & K. 357 211 Phillips, Re, 2 Add. 335 35. - r. Deal, 32 Beav. 26 114,177 - V. Hartley, 8 C. & P. 121 20 - e. Homfray, 24 C. D. 439 ; 52 L. J. Ch. 833 ; 49 L. T. 5 ; 32 W. R. 6 157 - r. Jones 28 Sol. J. 360 207 v. Phillips, 32 Beav. 26 195 - /-. - ,2 Freein. 11 178 Pickering r. Stamford, 2 Ves. 583 191 Piety r. Stace, 4 Ves. 622 187 Piggott c. Cm-n, (5 Sim. 74 127 Pinede, J!>, \-2 C. 1). 667 7:', Pinney >: Hunt, 6 C. D. 100 ; 20 W. K. 69 38 Pollard <. Doyle, 1 Dr. & S. 319 189 Ponsonby, lie, (1895; P. 287 ; 64 L. J. P. 119 ; 44 W. R. 240 . . 3 Portlock /. Gardner, 1 Ha. 604 -2-24 Pottinger, E* pnrte, 8 C. D. 621 ; 47 L. J. Bk. 43 . : . .112 Pountney, U>-, 4 Hagg. 290 22 Powell f. Evans, 5 Ves. 843 179, 181 - r. Graham, 7 Taunt. 580 ; 1 Moo. 305 . . . . 156, 170 - v. Hulkes, 33 C. D. 552 ; 55 L. J. Ch. 846 ; 34 W. K. 733 . 142, 185, 188 r. Rees, 7 A. & E. 426 158 Powers, 7.V, 3uC. D. 2!J1 218 P..wis, AV, 34 L. J. P. & M. 55 36 I'r.-ston /-. Melville, 8 Cl. & F. 1 . 24 Price, Re, 11 C. D. 163 i^ Prince, Re, (1898) 2 Ch. 22:> ; (57 L. .1. < 'li. 531 ; 78 L. T. 790 . . 1e, Re, Masonic, &c. r. Sharpe . . . . . . 164, 223 Sliaw, Es.parte, I Gl. & J. 127 .814 Shearman v. Robinson, 15 C. D. 548 ; 49 L. J. Ch. 745 ; 43 L. T. 372 174 Shephard, Re, Atkins r. Shephard 159 Sheppard, Pe, (1897) 2 Ch. 67 74 Sheweii v. Vanderhorst, 1 R. & M. 347 ; 1 L. J. Ch. 107 . . 114, 177 Shirreff v. Hastings, 6 C. D. 610 ; 25 W. R. 842 . . . .111 Shoosmith, Pe, (1894) P. 3 ; 63 L. J. P. 64 ; 70 L. T. 809 . . . 22 Shorey, Pe, 79 L. T. 349 ; 47 W. R. 188 215 Simmons, Es. parte, 16 Q. B. D. 308 45 - r. Gutteridge, 13 Ves. 264 122 Simpson r. Gutteridge, 1 Madd. 609 92 M..rley, 2 K. & J. 71 . . 84 Sims r. Doughty, 5 Ye.*. 243 93, 121 Sinclair, Re, 66 L. J. Ch. 514 131 Skeffington r. Budd, 9 Cl. & F. 219 51 Slade's Case, 4 Co. 95 . . . . . . . . . .69 Slaney r. Watney, 2 Eq. 418 ; 35 L. J. Ch. 7f^3 127 Slanning r. Style, 3 P. W. 336 137 Slater r. Alvey, 2 P. & D. 154 17 Slaughter r. May, 1 Salk. 42 34 Sk-et, Re, (1894) 2 Q. B. 797 20 Slnman r. Bank of England, 14 Sim. 475 142 Sly r. Blake, 29 C. D. 964 ; 52 L. T. 682 ; 33 W. K. 502 . . 196, 224 Sinethurst r. Tomlin, 2 S. & T. 143 2 Smith, Re, Henderson-Roe r. Kitchen 140 - r. Armitage, 24 C. D. 727 ; 52 L. J. Cli. 711 ; 49 L. T. 23:. . 210 - v. Dale, 18 C. D. 561 ; 50 L. J. Ch. 352 ; 44 L. T. 40o ; 21 W. R. 330 228 - r. Everett, 27 Beav. 440 ; 2!) L. J. Ch. 230 .... 91 - r. Langford, 2 Beav. 362 190 - v. Smith, Yelv. 130 94 Sneesby v. Thorne, 7 D. M. & G. 39!) 92 Somerset, Re, 1 P. & D. & r >0 ::.". Speight r. Gaunt, 9 App. Cas. 1 ; 53 L. J. Ch. 419 ; 50 L. T. 330 ; 32 W. R. 435 1H2, 184 Spence's Caw, 17 Beav. 203 102 Spicer r. James, 2 M. & K. 387 118 Spunvay r. GJynn, 9 Ves. 483 ML' xl TABLE OF CASES. PAGE Sj.vrr r. Hyatt, 20 Beav. 621 75 St. John r. Bawdripp, Noy, 43 155 Stacey v. Elph, 1 M. & K. 195 . . . . t . . . . 15 Stacpoole, Re, 2 S. & T. 316 36 - i: Howell, 13 Ves. 417 127 Stafford r. Buckley, 2 Ves. Sen. 171 67 Stalilschmidt r. Lett, 1 Sm. & G. 415 115,120 Staines v. Morris, 1 V. & B. 8 165 Stainton, Re, 2 P. & E. 212 ; 40 L. J. P. 25 ; 24 L. T. 320 ; 19 W. R. 567 23 - r. Carron Co., 18 Beav. 146 3, 222 Stammers v. Elliott, 3 Ch. 195 ; 37 L. J. Cli. 353 ; 18 L. T. 1 ; 16 W. R. 489 . . . 121 Stanton r. Lambert, 39 C. D. 626 ; 57 L. J. Ch. 927 ; 59 L. T. 429 . 147 Stark, Re, 1 P. & D. 76 ; 35 L. J. P. 42 ; 14 W. R. 349 . . . 36 Steer c. Steer, 2 Dr. & S. 311 .206 Stephens v. Hotham, 1 K. & J. 571 . ". . . '. . .167 - r. Venables, 31 Beav. 124 141 Stephenson, Re, 1 P. & D. 287 ; 36 L. J. P. 20 . . . . .. . 22 Sterndale r. Hankinson, 1 Sim. 393 226 Stevens, Re, (1898) P. 126 . 13 Re, Cooke v. Stevens 14, 210 - . Phelips, 10 Ch. 417 ; 23 W. R. 716 169 Stevenson r. Liverpool, L. R. 10 Q. B. 81 ; 31 L. T. 673 ; 23 W. R, 246 133 Stick ney r. Sewell, 1 M. & Cr. 8 180 Stiles, Re, (1898) P. 12 16 Storer v. Prestage, 3 Madd. 168 .137 Stony v. Walsh, 18 Beav. 559 87 Stott v. Lord, 31 L. J. Ch. 391 ; 5 L. T. 817 ; 10 W. R. 284 . 91, 92 Strange r. Harris, 3 Bro. C. C. 365 208 Stratton v. Linton, 31 L. J. P. & M. 48 23 Strickland c. Symons, 26 C. D. 245 ; 53 L. J. Ch. 582 ; 32 W. R. 889 202, 215 Stronghill v. Anstey, 1 D. M. & G. 635 87 Styles t?. Guy, 1 Mac. & G. 422 178.184 Surinan v. Wharton, (1891) 1 Q. B. 491 21, 57 Suttonr. Sntton, 22 C. D. 511 225 Swindell r. Bulkeley, 18 Q. B. D. 250 ; 56 L. J. Q. B. 613 . . 196 Swinfen v. Swinfen, 29 Beav. 211 182 Swire, Re, 21 C. D. 647 220 Sykes r. Sykes, 5 C. P. 113 ; 39 L. J. C. P. 179 ; 18 W. R. 551 . 11 Symons, Re, Luke v. Tonkin . . 191 TABLE OF CASES. xli PAGE TALBOT r. Frere, 9 C. 1). 568 ; 27 W. R. 148 118 - v. Marshfield, 3 Ch. 622 ; 37 L. J. Ch. 52 ; 19 L. T. 223 . IM; Tanqueray-Willaume, Re, 20 C. D. 465 . . . . . . 88 Tarn v. Commercial, &c., 12 Q. B. D. 294 ; 50 L. T. 365 . '. .19 - v. Emmerson, (1895) 1 Ch. 652 ; 64 L. J. Ch. 468 ; 43 W. R. 406 118 Tasker v. Tasker, (1895) P. 1 .62 Tayler r. Hawkins, 8 Ves. 209 . .87 Taylor v. Johnson, 2 P. W. 504 . . . . . . . .143 - v. Alartindale, 12 Sim. 158 .^- . 137 - r. Roe, (1894) 1 Ch. 413 . . 110 - v. Shum, 1 B. & P. 21 164 - r. Tabrum, 6 Sim. 281 .178 - v. Taylor, 10 Eq. 477 ; 39 L. J. Ch. 676 . . ' . 123, 163 - v. , 20 Eq. 155 ; 44 L. J. Ch. 718 . . . . 120, 13 - r. , 6 P. D. 29 ; 40 L. J. P. & M. 45 . . . . 32 - v. Wade, (1894) 1 Ch. 671 ; 63 L. J. Hi. 424 ; 70 L. T. :r>6 . 121 Taynton >\ Hannay, 3 B. & P. 26 33 Tebbs /. Carpenter, 4 Madd. 290 178 Teece, Re, (1896) P. 6 ; 65 L. J. P. 41 ; 73 L T. 631 ; 44 W. It. 4<>o -2'3 Tempest r. Camoys, 21 C. D. 571 215 Tern-11 .-. Matthews, 1 Mac. & G. 433 1*3 Tharpe v. Stallwood, 5 M. & Gr. 760 43 Thomas, Re, 1 Phill. 159 45 - Re, 34 C. D. 166 167 - v. Montgomery, 1 R. & M. 729 136, 138 Thompson, Re, (1896) 1 Ir. R. 356 30 - v. Cooper, 1 Coll. 81 118 - r. Dunn, 5 Ch. 573 215 - r. Harding, 2 E. & B. 630 12 - ' . Stanhope, Ambl. 734 195 - v. \Vaithman, 3 Dr. 628 195 Thorley, Re, Thorley r. Massam, (1891) 2 Ch. 613 ; 60 L. J. Ch. 537 ; 64 L. T. 515 126 Thome r. Kerr, 2 K. & J. 54 214 - o. Thome, (1893) 3 Ch. 196 ; 63 L. J. Ch. 38 ; 69 L. T. 378... 86, 133 Threlfall v. Wilson, 8 P. D. 18 96 Tichborne v. Tichborne, 1 P. & D. 730 ; 38 L. J. P. & M. 55 . . 30 _ v . _ , 2 P. & D. 41 ; 39 L. J. P. & M. 22 ; 22 L. T. 22 . 32 Toleman, Re, West wood v. Booker 221 Tomlin v. Beck, 1 T. & R. 438 10 Tomlinson, Re, 6 P. D. 209 ; 50 L. J. P. 74 ; 30 W. R. 61 . . .76 xlii TABLE OF CASES. PAGE Tomlinson t. Gill, Ambl. 330 171 Toplis v. Hiirrell, 19 Beav. 423 183 Torre r. Browne, 5 H. L. C. 555 142 Tottenham, Re, (1896) 1 Ch. 628 ' . 219 Townend . Townend, 1 Giff. 201 212 Townseud v. Townsend, 23 C. D. 100 . . . ' . . . .220 Townson v. Tickell, 3 B. & Al. 40 136 Trafford r. Blanc, 36 C. D. 600 ; 57 L. J. Ch. 135 ; 57 L. T. 674 ; 36 W. B. 163 149 Trail v. Bull, 1 Coll. 352 135 Trattlev. King, T. Jones, 170 .44 Tredwell, Re, 65 L. T. 742 . . . 138 Trethewy r. Helyar, 4 C. D. 53 144 Trott . Buchanan, 28 C. D. 446 ; 54 L. J. Ch. 678 ; 52 L. T. 248 ; 33 W. R. 339 . . < 152, 153 Trufort, Re, Trafford v. Blanc 149 Turner, Re, 12 P. D. 18 ; 56 L. J. Ch. P. 41 ; 57 L. T. 372 ; 35 W. R. 384 .24 Re, Barker r. Ivimey 182 v. Buck, 18 Eq. 301 142 -v. Cox, 6 Moo. P. &C. 317 ....'... 106 - r. Hardey, 9 M. & W. 770 92 r . Watson, (1896) 1 Ch. 925 ; 65 L. J. Ch. 553 ; 74 L. T. 453 121 Turwin r. Gibson, 3 Atk. 720 106 TwigK v. Black, (1892) 1 Ch. 579 ; 61 L. J. Ch. 444 ; 66 L. T. 604 ; 40 W. R, 297 148 Twycross v. Grant, 4 C. P. D. 40 ; 46 L. J. C. P. 636 . 64 Tyler v. Bell, 2 M. & Cr. 89 . . . . . . . 204 - v. Jones, 2 B. & C. 144 72 Tyson v. Chambers, 9 M. & W. 460 44 UNDERWOOD v. Stevens, 1 Mer. 712 184 Utterson v. Hair, 2 Ves. 95 . . . 2 VAX BUNAS v. Piffard, 13 W. R. 425 220 Van Gelder v. Sowerby, 44 C. D. 374 . . . . . . 192 Van Gheluive v. Nerinckx, 21 C. D. 189 ; 51 L. J. Ch. 929; 47 L. T. 46 110 Vane and Rigden, 5 Ch. 663 ; 39 L. J. Ch. 797 ; 18 W. R. 1092 . 86 Veiga, Re, 3 S. & T. 13 ; 32 L. J. P. & M. 9 15 Velho r. Leite, 3 S. & T. 456 7 Venn and Furze, Re, (1894) 2 Ch. 101 ; 63 L. J. Ch. 303 ; 70 L. T. 312 ; 4-2 \V. R. 440 . . . 78, 88 TABLE OF CASES. PAOK Veret r. Duprez, 6 E tl . 329 ; 18 L. T. 501 ; 16 W. R, 750 ... .32 Vibart v. Coles, 24 Q. B. D. 364 ; 59 L. J. Q. B. 152 . . . .114 Vi.-kera v. Bell, 4 De G. J. & S. 274 ; 4 Jur. (X. S.) 376 . . ." 15 Vim-cut, Re, 26 W. R. 94 ......... 219 Y.-wles, Re, 32 C. D. 273 ; 55 L. J. Ch. 661 ; 34 W. R. 639 . . 228 Vulliamy v. Noble, 3 Her. 614 ...... . .160 YVM- f . Foster, L. R. 7 H. L. 318 ; 44 L. J. Ch. 37 ; 31 L. T. 177 ; 23 W. R. 355 ........... 186 WALKER, Re, 59 L. J. Ch. 386 ....... 180 r. Sy mends, 3 Sw. 58 ........ 185 - v. Walker, 20 W. R. 162 . . . . . . . .179 - r. Wetherell, 6 Ve.. 474 . ....... 140 Wall r. Bushby, 1 Bro. 484 ........ 211 Walsh f. Gladstone, 1 Phil. 294 ........ 39 - f. Walsh, 1 Dr. 64 ......... 139 Walters r. Walters, 18 C. D. 182 ; 29 W. R. 888 ; 44 L. T. 769 . .116 Wankfonl r. Wankford, 1 Salk. 301 ....... 18 Warren, lie, 32 W. R. 916 ......... 91 Watson, Re, 19 Q. B. D. 234 ; 56 L. J. Q. B. 619 ; 57 L. T. 215 . 43, 173 - Re, (1893) 1 Q. B. 21 ........ 110 ll>\ Turner v. Watson ........ 121 - v. Toone, 6 Madd. 153 ........ 88 Wrall, Re, 42 C. D. 674 ......... 184 W-bb, Re, 13 P. D. 71 ; 57 L. J. P. 36 ; 58 L. T. 683 ; 36 \Y. R. 847 29 - 7-. Kirby, 7 1). M. & G. 376 ....... 34 - r. Xeedlmni, 1 Add. 494 ........ 23 Webber /-. Webber, 1 S. & S. 311 ....... 138 Webster --. Webster, 10 Ves. 93 ........ 225 Wedderburn r. Wudderburn, 4 M. & Cr. 41 ; 8 L. J. Ch. 177 . . 186 We,-ks o. Gore, 3 P. W. 184 ........ 118 Welrhmun r. Sturgis, 18 Q. B. 552 ; 18 L. J. Q. B. 211 . . 43 Wells. /,'.. .Mnlonyr. Brooke ....... 178,207 Weiihani. /,', Hunt /. Weiiham ....... 114, 177 Werdernmn r. Societe, &c., 19 C 1 . D. 246 ...... 192 Wrst p. Wilby, 3 Phillim. 375 ........ 29 West \v, I'. I). 71 ; 47 L. J. P. & M. 87 ; 39 L. T. 127 . 16 Wheldale r. Wheldale, 16 Yes. 37(> . . . . . .214 Wliiiicuj. <: Hughes, 6 C. P. 78 ; 40 L. J. C. P. 104 . . . . 169 Whistler, 1!,-, 35 < '. I). f>(> I ; 5(5 L. J, Ch. 827 ; 57 L. T. 79 ; 35 W. R. 662 224 xliv TABLE OF CASES. PAGE Whitaker, AV, 4-2 C. D. 119 ; 58 L. J. Ch. 487 ; 61 L. T. 102 ; 37 W. R. 673 112 - v. Barrett, 43 C. D. 70 ; 59 L. J. Ch. 218 ; 38 W. R. 59 . 89, 114, 177 White, Re, (1898) 1 Ch. 297 ....... 127, 189 - r. Barton, 18 Beav. 192 . 208 - v. Cordwell, 20 Eq. 644 : 44 L. J. Ch. 746 ; 23 W. R. 826.. .121, 193 Whitehead v. Taylor, 10 A. & E. 210 ; 2 P. & D. 367 . -. . . 42 Whiteley, Re, 33 C. D. 347 . 228 Whittaker r. Kershaw, 45 C. D. 320 ; 60 L. J. f'h. 9 ; 63 L. T. 203 ; 39 W. R. 23 123, 144 Whittle v. Kenning, 2 Beav. 396 212 Widdowson r. Duck, 2 Mer. 494 .180 Wieland v. Bird, (1894) P. 262 ; 33 L. J. P. 162 ; 71 L. T. 267 . . 31 Wightwick v. Lord, 6 H. L. C. 217 ; 26 L. J. Ch. 825 ; 5 W. R. 713 . 180 Wigley v. Ash ton, 3 B. & Al. 101 .179 Wilcocks, Re, 67 L. T. 528 . . 36 Wilde, Re, 13 P. D. 1 ; 57 L. J. P. 7 ; 57 L. T. 815 . . . . 27 Wildes v. Davies, 1 Sm. & G. 475 128 Wilkes v. Sannion, 7 C. D. 188 201 Wilkins v. Fry, 1 Mer. 266. . . . . . . .165 Wilkinson, Me, (1892) P. 227 ; 61 L. J. P. 134 ; 67 L. T. 238 . . 5 - r. Wilkinson, 2 S. & S. 237 . '. . . . . . 190 Willey, Re, (1890) W. N. 1 . . 3 Williams, Re, 40 W. R. 636 217 - Re, Davies v. Williams . . . . .. . . 79,196 - r. Arkle, L. R. 7 H. L. 615 ; 4o L. J. Ch. 590 ; 33 L. T. 187 146 - v. Breedon, 1 Bos. & P. 330 . . .'. . . .65 - v. HeaLes, 9 C. P. 177 ; 43 L. J. C. P. 80 ; 22 W. R, 317 . 10 - v. Innes, 1 Camp. 364 . .151 - v. Lee, 3 Atk. 223 205 - r. Wilkins, 2 Phillim. 100 ....... 23 - v. Williams, 15 Eq. 270 ; 42 L. J. Ch. 158 ; 21 W. R. 160 . 110 - r. - , 20 C. D. 659 ; 51 L. J. Ch. 385 ; 46 L. T. 275. ..104, 173 Willis v. Kibble, 1 Beav. 559 190 Wilmot r. . Jenkins, 1 Beav. 401 131 Wilson v. Cox well, 23 C. D. 764 ; 52 L. J. Ch. 975 . . . .115 - v. Dunsany, 18 Beav. 293 Ill - v. Moore, 1 M. & K. 337 85 - v. Rhodes, 8 C. D. 777 133 v. Tucker, 3 Stark. 154 155 Winchester, B. of v. Knight, 1 P. W. 406 158 Wingrove v. Thompson, 11 C. D. 419 ; 27 W. R. 910 206 TABLE OF CASES. xlv PAQI Wise p. Metcalfe, 10 B. & C. 299 ; 5 M. & K. 235 . . . 15! Wollaston r. Wollaston, 7 C. D. 58 ; 47 L. J. I'll. 117 ; 37 L. T. 631 . 218 Wolverhampton v. Marston, 7 H. & N. 148 84 Womersley, Re, Etheridge r. Womersley . . . . . .198 Wood, Re, (1896) 2 Ch. 596. . . 146 r. Gaynon, Anibl. 395 ........ 61 - r. Penoyre, 13 Ves. 333 84 - v. Weightman, 13 Eq. 436; 26 L. T. 385 ; 20 W. K. 459 . 125 v. Wood, 21 W. R. 135 203 Woudgate P. Field, 2 Ha. 211 ; 11 L. J. Ch. 321 . . .211, 219, 2-2-2 \V,.odhouse r. Woodhouse, 8 Eq. 514 ; 38 L. J. Ch. 481 . .223 Wooll.'y r. ( 'lark, 5 B. & Al. 744 42 Wonnald v. Muzeen, 17 C. D. 167 131 Worthington v. Barlow, 7 T. R. 453 172 Wright, Re, 79 L. T. 473 2, 3 AViigl.-y .-. Svkes, 21 Beav. 337 85 AVroughton v. Colquhoun, 1 De G. & S. 357 131 \\mut r. Dawes, 25 Beav. 369 193 YAITES r. Gough, Yelv. 33 51 Yare v. Harrison, 2 Cox, 377 . . 208 Yeatmanv. Yeatman, 7 C. 1). 210 ; 47 L. J. Ch. 6 ; 38 L. T. 374. .. -2-2-2, 2:i York, Re, 36 C. D. 233 221 Young, Re, 1 P. & D. 186 ; 35 L. J. P. & M. 126 ; 14 L. T. 634 ; 14 W. R. 821 37 /-. Walter, 9 Yes. 365 212 Youngs, He, 30 C. D. 431 210 TABLE OF STATUTES. PAGK 43 Eli/, c. 8 119 22 & 23 Car. 2, c. 10 . 148 29 Car. 2, c. 3 . . 171 3 & 4 Wm. & M. c. 42 . . . ' 158 4 & 5 Wm. & M. c. 24 156 17 Geo. 2, c. 38, s. 3 107 36 Geo. 3, c. 52 130 38 Geo. 3, c. 87 29, 32 55 Geo. 3, c. 184 14, 107 57 Geo. 3, c. 29, s. 51 108 1 Wm. 4, c. 40 145 3 & 4 Win. 4, c. 27 (Limitations) ...... 44, 79, 195 c. 42 (Limitations) 65,83,113,158 c, 104 117 1 Viet c. 26 (Wills Act, 1837), s*. 3, 6 . . . . 55, 71, 151 9 & 10 Viet. c. 93 (Lord Campbell's Act) 65 17 & 18 Viet. c. 113 (Locke King's Act) 152 19 & 20 Viet c. 97 (Mercantile Law Amendment Act) . . 172, 195 20 & 21 Viet. c. 77 (Court of Probate Act, 1857) 3, 15, 17, 30, 31, 33, 38, 40 c. 85 (Matrimonial Causes Act) 22 21 & 22 Viet c. 95 (Court of Probate Act, 1858) . . 13, 17, 33, 44 22 & 23 Viet. c. 35 (Lord St. Leonards' Act) ... 72, 124, 125 23 & 24 Viet c. 38 (Law of Property Act, 1860) . . . 110,196 25 & 26 Viet c. 89 (Companies Act, 1862) 67, 161 26 & 27 Viet. c. 57 107 c. 87, s. 14 107 27 & 28 Viet c. 95 66 30 & 31 Viet c. 23 (Re-insurance) 90 c. 69 (Locke King's Amendment Act) .... 152 32 & 33 Viet c. 46 (Hinde Palmer's Act) .... 111,114,115 33 & 34 Viet c. 14 (Naturalization Act, 1870) 2 c. 23 (Felony Act, 1870) 141 xlviii TABLE OF STATUTES. PAGE 33 & 34 Viet. c. 35 (Apportionment Act, 1870) 68 c. 71 (National Debt Act), s. 23 ... 67, 93, 132 34 & 35 Viet. c. 43 (Ecclesiastical Dilapidations Act) . . . 113, 158 36 & 37 Viet. c. 52 (Intestates' Widows and Children Act, 1873) . .17 c. 66 (Judicature Act, 1873), s. 25. . . 48, 68, 198 37 & 38 Viet. c. 57 (Real Property Limitation Act, 1874) . . 196, 224 38 & 39 Viet. c. 27 (Intestates' Widows and Children Act, 1875) . 17 c. 77 (Judicature Act, 1875), s. 10 . . . 108, 112, 115 40 & 41 Viet c. 34 (Locke King's Amendment Act, 1877) . . .152 43 & 44 Viet. c. 42 (Employers' Liability Act, 1880) .... 66 44 Viet. c. 12, s. 40 14 44 & 45 A'ict. c. 41 (Conveyancing Act, 1881) . 48, 55, 89, 95, 140, 142 45 & 46 Viet. c. 38 (Settled Land Act, 1882) 157 c. 61 (Bills of Exchange Act, 1882) . . . .89 c. 75 (Married Women's Property Act) 21, 52, 56, 69, 141, 185 46 & 47 Viet. c. 52 (Bankruptcy Act, 1883) ... 45, 69, 104 c. 57 (Patents Act, 1883) ...... 67 c. 61 (Agricultural Holdings Act, 1883) . . . . 59 51 & 52 Viet. c. 59 (Trustee Act, 1888) 223 c. 62 (Preferential Payments in Bankruptcy Act) . 107, 111 53 Viet. c. 5 (Lunacy Act, 1890) 3, 34 53 & 54 Viet. c. 29 (Intestates' Estates Act, 1890) . . . .147 c. 39 (Partnership Act, 1890) .... 160, 161 c. 63 (Companies Act, 1890) . . . . .164 50 & 57 Viet. c. 53 (Trustee Act, 1893) 80, 90, 95, 142, 166, 180, 182, 183, 185, 209 57 & 58 Viet. c. 30 (Finance Act, 1894) ...... 97 59 & 60 Viet. c. 25 (Friendly Societies Act, 1896) .... 107 c. 28 (Finance Act, 1896) 98 c. ;35 (Judicial Trustees Act, 1896) . . 159, 175, 207 60 & 61 Viet. c. 37 (Workmen's Compensation Act) .... 66 c. 65 (Land Transfer Act, 1897) .... jiassim THE LAW KELATIXG TO CHAPTER I. OF THE OFFICE OF EXECUTOR. Who may be Executor. GENERALLY speaking, all persons capable of making wills, and some others besides, are capable of being made executors. From the earliest time it has been a rule that every person may be an executor, saving such as are expressly forbidden. Swinb. pt. 5, s. 1. It seems to be admitted that the king may be an The king, executor ; in which case he appoints persons to execute the will. Godolp. ii. 1 (2) ; Wms. 183. It seems to be now settled that a corporation aggregate Corporations. may be named as executor ; and on their being so named they may appoint persons to receive administration with the will annexed, who are sworn like other administrators. Re Darke, 1 Sw. & T. 516. There seems to be no doubt that a corporation sole can be an executor. Went. 39 ; Re Haynes, 3 Curt. 75. Where a limited company were appointed executors the Company. Court granted administration with the will annexed to the general manager as their nominee. Re Hunt, (1896) P. 288 ; 66 L. J. P. 8. Where a firm was appointed, it was held that the Firm. L.R. B 2 THE OFFICE OF EXECUTOR. appointment was not of the firm, but of the persons com- posing it individually, and that each of the members was entitled to prove. Re Fernie, 6 Notes of Gas. 657. Alien. Under the Naturalization Act, 1870, an alien is now capable of being an executor or administrator. See sect. 2. Infant. An infant may be appointed executor how young so ever he be. Went. p. 390. But if he is sole executor, he is, by 38 Geo. 3, c. 87, s. 6, disqualified from acting during minority, and adminis- tration cum testamento annexo will be granted to the guardian or other person until he is of age. Post, p. 28. But if he is one of several, and one is of full age, no administration ought to be granted, for he who is of full age may execute the will. Wms. 185. It has been said that if it be a woman infant who is made executrix, and her husband be of age and assent, the husband shall have the execution of the will. Went. 392. Feme corert. A married woman may be an executrix or administratrix, and can act independently of her husband in all respects as 'if she were a feme sole. M. W. P. Act, 1882, ss. 24, 18. Felon. It seems that an outlaw or felon may act as executor. Wms. 186; Smethurst v. Tomlin, 2 Svv. & T. 143; but see Re Mander, 6 Q. B. 867. And by the Trustee Act, 1893, s. 48, trust estates of an executor are not affected by his becoming a convict ; and the Court cannot appoint another executor in his place (sect. 25 (3) ; Re Willey, W. N. 1890, 1), except under the Jud. Trustees Act. The Court will in some cases pass over an executor, but not by reason of his bad character only. Re Samson, 3 P. & D. 48 ; Re Wright, 79 L. T. 473 ; Bowen v. Phillips, infra. Pauper. The Court cannot refuse to grant probate to a person on account of his poverty or insolvency. Bankrupt. But the Chancery Divisiou will restrain an insolvent or bankrupt executor from acting and appoint a receiver ; and if it is necessary to bring actions to recover the effects, it will compel him to allow his name to be used (Uterson v. WHO MAY BE. Mair, 2 Ves. Jun. 95) ; but it cannot appoint another executor in bis place, lie Willey, supra. But wbere tbere is a co-executor willing to continue to act, tbe Court will not require tbe appointment of a receiver. Boicen v. Phillips, (1897) 1 Ch. 174 ; 66 L. J. Ch. 165. If, bowever, a person known by tbe testator to be a bankrupt is appointed, such person cannot, on the ground of insolvency alone, be controlled by tbe appointment of a receiver. Staintoii v. Carron, 18 Beav. 146. Idiots and lunatics are incapable of being executors or Lunatic, administrators. Godolph. ii. 6 (2). Therefore if an executor become insane the Court will grant administration to another. Post, p. 34. And where a single administrator becomes insane and a person is appointed under sect. 116 of the Lunacy Act, 1890, with only specified powers, the Court will make a grant to another of tbe next of kin for the use of such administrator, impounding the original grant. Re Cooke, (1895) P. 68. A grant may be made durante corporis aut animi vitio. Therefore where a person appointed executor was too ill to be served with a citation to accept or refuse probate, administration with the will annexed was granted to a residuary legatee for life for the use and benefit of the executor till his recovery. Re Ponsonby, (1895) P. 287. Foreigners residing abroad may be executors and may take Foreigner, probate limited to the English assets. Re Briesemann t 72 L. T. 268 ; and see Re Earl, L. K. 1 P. & D. 450. But by Court of Probate Act, 1857, s. 73, an executor may be passed over if resident abroad and if it is convenient to grant administration with the will annexed to some other person. Re Wright, 79 L. T. .473. Where it is shown that a testator has misdescribed the Uncertain name and residence of an executor, probate may be granted ycr i n * to the executor in his real name and as of his real residence. Re Baskett, 78 L. T. 843 ; and see Re Chappell, (1894) P. 98 ; Re De Rosaz, 2 P. D. 66. B2 THE OFFICE OF EXECUTOR. But the ambiguity must be real. Ee Peel, 2 P. & D. 46. And the appointment may be void for uncertainty. Be Blachvell, 2 P. D. 72. Tlie Appointment of Executors. An executor can derive his office from a testamentary appointment only. Re Willey, W. N. 1890, 1. His appointment may be either express or implied ; and in the latter case he is usually called executor according to> the tenor. Executor For although no one is nominated in the will by the wordi according to . ,, , , the tenor. executor, yet it by any word or circumlocution the testator recommend or commit to one or more the charge and office or the rights which appertain to an executor, it amounts to constituting him or them to be executors. Went. 20. Thus if he declares that A. B. shall have his goods after his death to pay his debts or otherwise dispose of; or commits all his goods to the administration of A. B. ; or makes A. B. lord of all his goods ; or leaves the residue of all his goods to A. B., it will amount to the appoint- ment of such persons as executors according to the tenor.. Wms. 189. So where a testator appointed persons to carry out his. will and for the due execution of his will, they were held to be executors according to the tenor and entitled to probate. Ee Russell, (1892) P. 380. And a reference in a marginal note to certain persons as executors, whose express appointment as executors has been cancelled, but who are left trustees of the will, may have the effect of appointing them executors, and not only according to the tenor. Re Nussey, 78 L. T. 169. But a mere trustee is not entitled to probate as executor according to the tenor. Re Jones, 2 S. & T. 155 ; and see Eafcw v. tiaines, (1894) W. N. 32 ; 70 L. T. 761. So where property is given to trustees for particular purposes, or persons without any general power to receive THE APPOINTMENT OF. 5 and pay what is due to and from the estate, which is the office of an executor, such trustees are not entitled to prohate as executors according to the tenor. Boddicott v. Dalzeel, 2 Lee, 294 ; Re Leven, 15 P. D. 22. But where the testator expressed a wish that his trustees should pay his debts, they were held executors according to the tenor. Re Wilkinson, (1892) P. 227. Nor is a universal legatee so entitled, though he may take out administration with the will annexed. Re Oliphant, 1 S. &. T. 525. In short, unless the Court can gather from the will that the person named is required to pay debts and generally administer the estate, it will not grant probate to him as executor according to the tenor. Re Puncliard, L. E; 2 P. & D. 369 ; Re Lowry, L. K. 3 P. & D. 157 ; Re Brown, 2 P. D. 110. There is no objection either in principle or practice to admit an executor according to the tenor to probate jointly with an executor expressly nominated. Re Brown, supra. An executor may also be appointed by necessary iinplica- By tion, as where the testator says, " I will that A. B. be my im P lication - executor if C. D. will not," in which case C. D. may be admitted, if he please, into the executorship. There is a great distinction between an executor and a coadjutor or overseer, the latter having no power to administer, but only to counsel and advise. As to what words amount only to the appointment of a coadjutor, see Wentw. 2. And an executor expressly appointed for a limited purpose in a will may be appointed general executor by a codicil by implication merely. Re Aird, 1 Hagg. 336. Instances occur of granting probate to persons nominated Testator may by those authorised by the testator so to nominate. Thus e egate * where legatees were authorised to appoint two persons to execute the testamentary bequests, probate was granted to the nominees as executors. B,c Crinyan, 1 Hagg. 548. THE OFFICE OF EXECUTOR. Substituted executors. Power of survivor to appoint another. Uncertainty. A testator may appoint several executors in several degrees, as where he makes A. his executor, but if he will not, then 1 he makes B., and if he will not, then he makes C. his executor ; in which case A. is said to be instituted executor in the first degree, B. is said to be substituted in the second degree, and so on. lie Lane/ford, L. R. 1 P. & D.' 458. But if an instituted executor once accepts the office, and afterwards dies intestate, the substitutes are all excluded (Swinb. pt. 4, s. 19 (10)), unless the testator otherwise expressly provides. Re Lighten, 1 Hagg. 235 ; Re Foster, L. R. 2 P. & D. 304. Where there are two or more executors, power may be given to the survivor to appoint another. Re Deiclimait, 3 Curt. 123 ; Jackson v. Paulet, 2 Robert. 344. Where a testator appoints executors, and afterwards appoints a person or persons as " sole " executor or executors, the first appointment is revoked. Re Lowe, 3 Sw. & Tr. 478 ; Re Baily, L. R, 1 P. & D. 628. An appointment may be bad for uncertainty, as where a testator appoints "two of my sons" or "one of my sisters." Re Blackwell, 2 P. D. 72 ; and see Re De Rosaz, 2 P. D. 66, as to parol evidence. Time. How Appointment may le qualified. The appointment of executor may be qualified as to time or place, or subject-matter ; or the creation of the office may be conditional. The time may be limited when the person appointed shall begin or shall cease to be executor. Thus an executor may be appointed as at the expiration of five years after the death of the testator, or at an uncertain time, as upon the death or marriage of his son (Swinb. pt. 4, s. 17) ; or when he shall come of age (Went. 22) ; or on the death of the original executor. Re Lif/h ton, 1 Hagg. 235. HOW QUALIFIED. Likewise an executor may be appointed for a particular period, as for five years next after the testator's death, or during minority, or during widowhood, or until death or marriage. Swinb. pt. 4, s. 17. In these cases if the testator does not appoint a person to act before or after the time limited, an administrator cum tt'stamento annexo will be appointed. In like manner the appointment may be limited in point Place, of place. Thus the testator may make different executors for his goods in different counties or districts, or in various countries. Swiub. pt. 4, s. 18 ; Vellio v. Leitc, 3 Sw. & Tr. 456 ; Re Harris, L. K. 2 P. & D. 83. Again, the power of an executor may be limited as to Subject- subject-matter. Thus an executor may be made of a particular thing, as of his household goods, or of his cattle, or of his debts due to him (Went. 29) ; and one for general and another for limited purposes. Lynch v. Bellew, 3 Phillim. 424. But though there may be separate executors of different parts of the assets, yet quoad creditors they are all executors and may be sued as one executor. Hose v. Bartlctt, Cro. Car. 293. Lastly, the appointment may be conditional, and the Conditional, condition may be either precedent or subsequent. Thus the appointment may be conditional on his giving security to pay legacies, or on his proving the will within three months, or on his paying his debt due to the testator. Wms. 202. Devolution of the Office. An executor cannot assign the executorship. Becldett v. Constable, Vaugh. 182. But the interest vested in him as sole executor may, The executor generally speaking, be continued by his executor, who to all ren^senTTthe intents and purposes is the executor of the original testator. fin *t testator. So long as the chain of representation is unbroken by THE OFFICE OF EXECUTOR. Kepresenta- tion survives. In what cases the chain is broken. any intestacy, the ultimate executor is the representative of every preceding testator. The rule is the same though the original probate is a limited one. Re Beer, 2 Rob. 349. But a limited probate will not continue the chain of representation, lie Bayne, 1 S. & T. 132. But if the first executor dies intestate, then his administrator is not such a representative ; and an administrator dc bonis non of the original testator must be appointed. Where a sole executor dies either before the testator or before probate, the office does not devolve, but an administrator cum testamcnto annexo must be appointed. Wankford v. W., post, p. 19. Where there are several executors and one dies the whole representation survives, and will be transmitted ultimately to the executor of the surviving executor, unless he dies intestate. Went. 215. Where an executor renounces probate the representation shall devolve as if he had not been appointed executor. 20 & 21 Viet. c. 77, s. 79. Where an executor to whom power is reserved survives his acting co-executor and does not appear when cited, the chain of executorship is continued in the executors of the acting executor without any fresh grant from the Court. Ee Reid, (1896) P. 129. So on the death of an executor without having renounced or taken probate, the executor of the survivor of two acting executors becomes the representative of the original testator. Re Lorimer, 2 Sw. & T. 471. A grant to the attorney of an executor does not break the chain of representation. Re Murguia, 9 P. D. 236. The conditions under which the chain of executorship is broken in law have been thus enumerated in Tristram & Coote's P. P., p. 173, 10th ed. :- 1. When the immediate sole acting executor dies intestate or testate without appointing an executor. WHEN TRANSMITTED. 2. When the survivor of the immediate acting executors dies intestate. 3. When the remote sole acting executor, to whom an executorship has been transmitted downwards per catcnam, dies intestate. 4. When the survivor of the remote acting executors dies intestate. 5. When the remote executor or executors renounce the probate of their own testator's will, or have been cited .and do not appear. 6. When the remote executor or executors die without having proved their own testator's will. 7. When of two or more executors who have died after probate taken by them, it is impossible to show which survived the other or others. 8. When one of the executors, having renounced before 1st January, 1858, has survived the other executor or executors. Executor de son Tort. If one who is neither executor nor administrator inter- meddles with the assets or otherwise acts as executor, he thereby makes himself an executor de son tort. A single act of intermeddling may be sufficient for the What con- purpose, if it be such as may induce the creditor to think executor that the party so intermeddling was the rightful executor. SO>1 tort. Mountford v. Gibson, 4 East, 441, 451. But acts of necessity do not bind. 3 Hagg. 774. A very slight circumstance of intermeddling will make An executor de son tort. Indeed almost any kind of meddling, however slight, is enough. Thus it has been said that milking the cows, even by the widow of the deceased, will constitute such an executorship Blake, 2 Sch. & L. 239. prove, The time within which he must decide to accept or refuse is uncertain, and left to the discretion of the Judge. Swinb. pt. 6, s. 4. Xo action lies for neglect to take out probate, and the plaintiff's only remedy is to cite the executor in the Probate Division. Re Stevens, (1898) 1 Ch. 162. If he refuse, administration cum testamcnto annejco will be granted to another. Garrard v. G., post, p. 15. Where an executor dies before taking out probate, or does not appear when cited, he will be treated as if he had renounced. 21 & 22 Viet. c. 95, s. 16 ; Re Lorimcr, 2 Sw. & T. 471 ; but see Re Ponsonby, ante, p. 3. But if he once administer, he will be deemed to have unless he 1 la- accepted, and the Court may compel him to prove the will. Mordaunt v. Clarke, L. R. 1 P. & D. 592; lie Stevens, (1898) 1 Ch. 162. 14 THE OFFICE OF EXECUTOR. And if an executor have intermeddled with the estate he may be compelled, on the application of a legatee, to take up probate, though he appears an undesirable person to fill the office of executor. Re Coates, 78 L. T. 820. And if any person take possession of, and in any manner administer any part of, the effects of the deceased he will be liable to a penalty if he does not prove within six months of testator's death. 55 Geo. 3, c. 184, s. 37 ; 44 Viet. c. 12, s. 40 ; Att.-Gen. v. New York Breweries Co,, (1898) 1 Q. B. 205. An executor of an executor, who has accepted the executorship of the latter testator, cannot renounce the executorship of the former. Brooke v. Haymes, L. R. 6 Eq. 25. The Court, however, may accept the executor's refusal, notwithstanding he has administered. Went. 91. After intermeddling, a renunciation is invalid and ought to be cancelled, lie Badenach, 3 Sw. & T. 465. Thus if an executor apply before probate for payment of a debt, though unsuccessfully, he cannot afterwards renounce. Cooke v. Stevens, (1897) 1 Ch. 422. The executor is liable to be sued, although administra- tion be granted to another, if he has once administered. See post, Chap. XV. But he cannot be sued by a creditor unless he has either administered or proved the will. Mohamidu v. Pitcliey, (1894) A. C. 437. Wbatamounts With respect to what acts will amount to an administering, ministering. * wo ru l es m ay be laid down, viz. : 1. That whatever the executor does with relation to the goods which shows an intention to take upon him the executorship will regularly amount to an administration. 2. That whatever acts will make a man liable as an executor de son tort will be deemed an election of the executorship. Ante, p. 9. Hence if he applies for payment of a debt (Cooke v. Stevens, supra), or seizes a stranger's goods which he REFUSAL OB ACCEPTANCE. 15 supposes belong to the testator, with intent to administer^ this will make him executor. Bac. Abr. Exor., E. 10. But if he seizes the testator's goods, claiming a property in them himself, though the claim is unfounded, this will not make him executor. Ibid. Where in answer to an inquiry an executor wrote that he was one of the executors, this was held sufficient evidence that he had acted. Vickers v. Bell, 10 Jur. N. S. 876. But an executor is not to be considered as acting by merely assisting a co-executor, or acting as his agent. On- v. Newton, 2 Cox, 274 ; Staccy v. Elph, 1 M. & K. 195 ; Dove v. Everard, I R. & M. 231. An executor may renounce after he is sworn (Jackson Renunciation. v. Whitehead, 3 Phillim. 577) ; but not after he has taken probate. Re Veiga, 32 L. J. P. M. & A. 9. Renunciation cannot be verbal, but it need not be How executor under seal, and may be by attorney. Re Gibson, 1 P. & D. 105 ; Ee Rosser, 3 S. & T. 490. Until the refusal is recorded no person can take out administration (Long v. Symes, 3 Hagg. 776) ; and until it is recorded it can be withdrawn. Re Morant, L. R. 3 P. & D. 151. Administration will not be granted on the consent of the executor. Garrard v. Garrard, L. R. 2 P. & D. 238 ; Re Reid, (1896) P. 129. If a party renounce in person, he takes the usual oath ; but if he renounce by proxy, the oath is dispensed with. If he refuse to take the oath, this amounts to a refusal of the office. Toller, 42. An executor cannot in part refuse. He must refuse entirely or not at all. Brooke v. Hai/mcs, L. R. 6 Eq. 25. Where an executor renounces probate, his executorship shall wholly cease, and the representation of the testator shall be committed as if such person had not been appointed executor. 20 & 21 Viet. c. 77, s. 79 ; Re Gill, L. R. 3 P. & D. 113. But the old practice which, in a proper case, allowed a Retracting renunciation. 16 THE OFFICE OF EXECUTOR. Cannot take representa- tion in another character. co-executor to retract his renunciation, is not abrogated by this Act. Re Stiles, (1898) P. 12. So where one of two executors absconded after taking probate, the Court allowed his co-executor, who had renounced, to retract his renunciation and take probate- Re Stiles, supra. Semble, that retraction will not be allowed after administration has been granted. Ibid. By Rule 50 P. R. (Non-contentious Business) no person who renounces probate of a will or letters of administration in one character is to be allowed to take representation in another character ; but see Re Wheelwright, 3 P. D. 71 ; Re Russell, L. R. 1 P. & D. 634. Where a power is given to executors they cannot exercise it if they renounce (Crawford v. Forshaw, (1891) 2 Oh- 261) ; but those who act may exercise the power. Granville v. M'Neilc, 7 Ha. 156. Where an executor is a creditor and neither acts nor proves, he can sue the other executor. Rawlinson v. Shaic f 3 T. R. 557. Of Probate. Jurisdiction in all matters relating to the grant and 1 revocation of probate of wills or of administration is now vested in the Probate Division. Executor The consequence is that an executor cannot assert his. hS'Stle^t?- title in an y otller Court without showing that he has. out probate, previously established it in the Probate Division, the usual proof of which is a copy of the will under the seal of the. Court, which is called the probate. This (or letters of administration with the will annexed where there is no executor) is legal evidence of the will in any question respecting personalty or realty. 60 & 61 Viet. c. 65. The probate is, however, merely evidence. The executor PROBATE. 17 derives his title from the will itself, and the property vests in him from the testator's death. Hence the probate is said to relate back to the testator's death. Post, p. 42. The executor is in a sense trustee for the legatees ; and now he is also trustee for the devisees, that is, when the estate is clear, or he has assented. 60 & 61 Viet. c. 65, s. 2 (1) ; lit Smith, 42 C. D. 302 ; Re Marsden, 26 C. D. 783. County Courts have jurisdiction in all contentious County business, i.e. grants or revocations of grants of probate or letters of administration, provided 1. The deceased lived at his death in the district where the application is made. 2. His personal estate, without deducting debts, was under 200/., and his real estate under 300L, exclusive of charges. Davics v. Brecknell, L. R. 2 P. & D. 177. The Probate Court may remit cases to the County Court. 20 & 21 Viet. c. 77, s. 59 ; 21 & 22 Viet. c. 95, s. 12 ; Slat<>r v. Alcey, L. E. 2 P. & D. 154. As to practice, see County Court Rules, 1889, Ord. 49. As to appeals, see 20 & 21 Viet. c. 77, s. 58 ; R. S. C. 1883, Ord. 59, r. 4. And see Intestates' Widows and Children Acts, 1873 and 1875, as to the administration of small estates under 100Z. What the Executor may do before Probate. The executor may do almost all the acts which are incident to his office before probate, except only some of those which relate to suits. He may take possession of the assets and dispose of What acts them, pay, release or receive debts, distrain for rent, and assent to or pay legacies. Wms. 251. He may enter on the testator's terms for years, and may now take possession of his real estate. 60 & 61 Viet. c. 65, s. 2, sub-s. 2. L.R. c 18 THE OFFICE OF EXECUTOR. Cannot main- tain actions. But may commence them. And though he should die before proving the will, yet do these acts stand good. In a word, the executor's death before probate determines the executorship, but does not avoid it. Wankford v. W., infra. But if such acts are relied on for title, or sought to be enforced, the probate must be produced. Thus, though the executor, before probate, can give a valid title to an assignee or specific legatee or devisee, yet if it be necessary to support that title by deducing it from the executor, this can only be done by producing the probate. And if the executor die before probate, letters of administration cum testamento annexo must be produced instead. Post, p. 19. Nor is a purchaser bound to pay the purchase money till probate, because the executor cannot give a complete indemnity. Neicton v. M. K. Co., 1 l)r. & Sm. 583 ; and see Re Stevens, (1898) 1 Ch. 162. An executor cannot maintain actions before probate, except such as are founded on his actual possession ; and in those actions where he relies on his constructive posses- sion as executor he will, generally speaking, have to produce the probate at the trial. Tarn v. Commercial, os, p.74. Chattels real, though not of much importance in them- Real estate selves, have become of some interest in consequence of the Land Transfer Act, 1897, which provides that on the real, death of any person after 1st January, 1898, his real estate shall devolve on his personal representative as if it were a chattel real, and that all enactments and rules of law relating to the effect of probate or letters of administration 54 PERSONAL ESTATE IN POSSESSION. as respects chattels real and as respects the dealing with chattels real before probate or administration shall apply to real estate so far as the same are applicable, except that some or one of several representatives cannot sell or transfer real estate. Sect. 2 (2). Real estate, therefore, unlike real chattels, is not to be disposed of by some or one only of several representatives. But it will pass, by the mere assent of the executors, to the devisee without conveyance. Sect. 3 (1). The chattels real which went to the executor or adminis- trator were not confined to leases for years of lands, but extended to chattel interests in incorporeal hereditaments, such as leases for years of commons, tithes, fairs, markets, and the like. Terms of Former!}' only leases and terms of a chattel quality that is, chattels real went to the executor or administrator, but he had no interest in the freehold terms or leases. All leases and terms, however, of a person dying after 1897, now vest in his representative. A lease for years made to a man and his heirs went to his executor, and so did a lease for years made to a corporation sole and his successors. Co. Lit. 46 b. And so did the estate of a tenant from year to year. James v. Dean, 11 Yes. 393. Even when a term for years is specifically devised, it will in the first instance vest in the executor for the usual purposes to which the assets shall be applied, and the legatee has no right to enter without the executor's assent. Post, Chap. XI. This proposition also applies to real estate of any person dying after 1st January, 1898. 60 & 61 Yict. c. 65. If the testator had a term for years, this vests in his personal representative, and he cannot refuse it though it be worth nothing, for the executorship or administratorship is entire and must be renounced in toto or not at all. Billinyhurst v. Spearman, 1 Salk. 297 ; Ackland v. Pring, 2 M. & G. 937. But he may, it seems, surrender a lease which is a damnosa CHATTELS REAL. 55 hereditas. Reid v. Tenterden, 4 Tyr. Ill ; and see 4 Tyr. 120, n. As to his liability under the covenants of a lease where there are no assets, see post, Chap. XIV. Estates pur autrc rie and mortgage estates are not, strictly speaking, chattels real, but may be conveniently dealt with here. With respect to estates pur tint re rie where there is no Estates /;r disposition by will and no special occupant thereof, they will go to the personal representative ; and if they come to the executor or administrator either by reason of special occupancy or by virtue of the Act (1 Viet. c. 26, s. G), they shall be assets in his hands and go in the same manner as personal estate. Reynolds \. Wright, 2 D. F. & J. 590. An estate pur au.tr e rie where the heir is special occupant is, however, real estate, and will, it seems, devolve as such under the Land Transfer Act, 1897. Post, p. 74. With regard to mortgages, the mortgage debt always Mortgages. went to the personal representative, even where the legal estate went to the heir or devisee. And by the Conv. Act, 1881, all estates vested in any person solely by way of mortgage must devolve on the personal representative of any person dying after 31st December, 1881. But a mortgagee might, as between his real and personal representative, by declaration convert the mortgage as well as any other part of his personal estate into laud and make it pass accordingly. Wms. 603. And though as to persons dying after 1st January, 1898, their real and personal representative will be the same, yet questions will still arise as between the persons beneficially entitled to the real and personal estate respectively, for the Land Transfer Act does not alter the rights of the persons beneficially entitled. So, too, where a mortgage merges, questions may still arise as between the persons entitled to the personal estate and those entitled to the real estate. 56 PERSONAL ESTATE IN POSSESSION. Where a sale takes place in the lifetime of the mortgagor, the surplus is personal estate ; where after his death, it is real estate. Bourne v. B., 2 Ha. 35. Where land was devised to executors for payment of debts, they took only a chattel interest ; but under 1 Viet, c. 26, s. 30, the whole estate of the testator passes unless a definite term or estate is given to them. And now all freehold real estate vests in them. 60 & 61 Viet. c. 65. Personal representatives may also become entitled to chattels real by condition or remainder. And also to contingent and executory interests therein. Fearne, 554 ; post, p. 71. Chattels Heal of Wife. By sect. 1 (1) of the Married Women's Property Act, 1882, a married woman can now hold or dispose of by will or otherwise any property as her separate property as if she were &fcme sole, without the intervention of any trustee. By sect. 2 every woman married after 1st January, 1883, can hold and dispose of as if she were a feme sole all property belonging to her at the time of marriage or acquired after marriage. And by sect. 5 every woman married before 1st January, 1883, can in the same manner hold and dispose of all property her title to which accrues after the Act. Women, however, married before 1st January, 1883, in addition to the powers conferred by the Act, still retain the same power to dispose of chattels real settled to their separate use, or (if married after 9th August, 1870) of chattels real acquired by them as next of kin of an intestate, as they possessed before the Act. Sects. 19 and 22. The effect of this Act is, it seems, to extend the power which before the Act a married woman had of disposing of such chattels real as were settled to her separate use, and to give the same power to a woman married before CHATTELS REAL OF WIFE. 57 1st January, 1883, in respect of any chattels real her title to which accrues to her after that date, and to a woman married on or after 1st January, 1883, in respect of all chattels real whensoever her title to them may accrue. Wms. 607. It follows that, if the wife survive her husband, his executor or administrator has no right whatever to such chattels as by the statute are made the separate property of the wife, but the property remains in and survives to the wife. Ibid. And if the husband survive the wife, it would seem that in respect of those chattels real over which a wife by the statute has a complete power of disposal as a feme sole, if she dies intestate without disposing of them, her husband has a right to them as her administrator ; and to establish his title he must take out administration to her. Ibid. ; Hope v. Hope, (1892) 2 Ch. 336. But see Surman v. Wharton, (1891) 1 Q. B. 491. The Act does not affect the devolution of the wife's property, but only the jiig mariti. The effect of the Act appears to be merely (1) that the husband is deprived of the power of divesting his wife of her chattels real during cover- ture ; and (2) that if she does not alien them in her life- time or by will, -and the husband survive, he will take such chattels real as are affected by the Act as her administrator. Wms. 606. As to the law relating to chattels real of wife previous to the M. W. P. Act, 1882, see Wms. 608. CHATTELS PERSONAL IN POSSESSION. Chattels Animate. Such chattels animate as are tame and domestic, as Domestic horses, dogs, kine, sheep, poultry, and the like, pass to the personal representative ; but seats, generally speaking, 58 PERSONAL ESTATE IN POSSESSION. with regard to wild animals, in which a man can have 110 property transmissible to his representatives. Black. Comm. 390. A qualified property may, however, subsist in the latter class per industriam Jiominis by a man's reclaiming or taming them, though if they become wild again the property ceases ; or propter impotentiam by reason of their being unable to get away ; and these shall go to the executors or administrators. Ibid. ; Wentw. 143. Game. Deer in a legal park i.e. a park by grant or prescription conies, partridges, and other game are considered as incident to the freehold, and will now pass to the personal repre- sentative as real estate, though deer may be so tame as to pass as chattels personal. Morgan v. Abergavenny, 8 C. B. 768 ; Ford v. Tynte, 2 J. & H. 150. If, however, the deceased had only a term for years in the land, the deer, conies, and other game will go to the executor or administrator as personal estate that is, he will have a right to take as many as he pleases during the term, provided he leaves enough for stores; otherwise it would be waste. Co. Lit. 53 a ; but see 7 Ves. 488. Chattels Vegetable. Trees. Growing trees and plants are incident to the inheritance, and will pass to the representative as real estate. They may, however, by grant or reservation, be divided from the land, although in fact they remain annexed to it, and will, pass to the personal representative of the vendor or purchaser as personal estate. Wentw. 148. When trees are severed they will, generally speaking, if timber, either bylaw or custom, go to the owner of the first estate of inheritance. If not timber they will, in general, go to the tenant, and consequently his personal represen- tative. Heriakenden'a Case, 4 Co. 63. CHATTELS PERSONAL ANIMATE AND VEGETABLE. 59 Fruit and other produce follow the soil, and go to the heir until severed from the trees. Wentw. 14(5. Emblements, which are the corn and other annual crops, Erablements. go to the personal representative as against the heir, but not as against a joint tenant or a purchaser or devisee. The rule also applies to every one who has an uncertain estate or interest, if his estate determines by the act of God before severance. Thus the personal representative of a tenant for life is entitled to emblemeuts to the exclusion of the remainderman or reversioner, because in this case the estate of the tenant is determined by the act of God. Co. Lit. 55 b. The personal representatives of an incumbent of a benefice are likewise entitled to emblements of the glebe lands ; but an incumbent who resigns is not so entitled. Bulicer v. Bulicer, 2 B. & Aid. 470. The representatives of a tenant in dower, a tenant by the curtesy, and a tenant at will are entitled to emblements. Co. Lit. 55 b. Where there is a right to emblements, there is a right to free entry in order to cut and carry them away. Co. Lit. 56 a. The executors of a landlord tenant for life are entitled t'o Compensation a charge on the holding for compensation paid by them under the Agricultural Holdings Act, 1883, s. 29. Gougli v. '',., (1891) 2 Q. B. 665. Chattels Personal Inanimate. These are all the movable inanimate goods and effects Chattels of the deceased, and pass to his personal representative p as personal estate ; and, though specifically bequeathed to a legatee, will not vest in him till the executor has assented. The right, however, of the personal representative to What do not some of these is barred to some extent in favour of certain 60 PERSONAL ESTATE IN POSSESSION. special claimants : 1. Heirlooms in respect of the heir or successor 2. Fixtures in respect of the heir, or devisee, or remainderman, or reversioner. 8. Paraphernalia in respect of the widow. Heirlooms. Heirlooms are such goods and personal chattels as go by special custom to the heir along with the inheritance, and not to the personal representative of the last proprietor. Heirlooms are not devisable (Co. Lit. 185 b) ; though the owner may dispose of them during his life as he may of timber. Blackst. ii. 429. They are not land, but movables (Ibid. ii. 17) ; and therefore are not affected by the Land Transfer Act, 1897. Post, p. 75. Besides heirlooms, there are chattels in the nature of heirlooms which go in the same way to the heir. Wms. 635. Chattels may also be devised or limited in strict settle- ment, so as to be transmissible like heirlooms. But they will be the absolute property of the first person seised in tail, and on his death devolve on his personal represen- tatives. Scarsdale v. Curzon, 1 J. & H. 40. But see Jarman, ii. 548, 3rd ed., as to how this way may be obviated. A sale of heirlooms may be made under the Settled Land Act, 1882, s. 37. Although no testator can exempt any part of his personal, estate from payment of debts, yet when he directs certain effects to be treated as heirlooms it is the duty of the executors as far as possible to preserve them, and, unless compelled, not to apply them in the payment of debts. Clarke v. Ormonde, 1 Jacob, 114. Although it is the general rule that chattels of a corpora- tion sole cannot go in succession, yet there are exceptions, CHATTELS PERSONAL HEIRLOOMS AND FIXTURES. 61 not only in the case of choses in action, but in cases of chattels which go to the successor of a corporation sole in the manner of heirlooms. Thus the ornaments of the chapel of a preceding bishop belong to the succeeding bishop. Wins. 639. Fixtures. As between the personal representative and the heir, As between the old rule, Quicqnid plantatur solo, solo cedit, still obtains e^Q^j. with some rigour in favour of the inheritance, and against the right to disannex anything which has been affixed thereto. This rule has been somewhat relaxed with regard to trade fixtures ; but it has been laid down in the House of Lords that the principle upon which a departure has been made from the old rule in favour of trade has no applica- tion to a case between the heir and executor. Fisher v. Dixon, 12 Cl. & F. 312, 328. The rule is most strict between the heir and the executor. This rule has been also relaxed with regard to fix- tures set up for ornament or domestic convenience. Beck v. Eeboic, 1 P. Wms. 94 ; Hairei/ v. Harvey, 2 Stra. 1141. But on the other hand the old rule has been adhered to. Colearace v. Dias, 2 B. & C. 76 ; King v. St. Duiistan, 4 B. & C. 686 ; Bain v. Brand, 1 A. C. 762. The law 011 this point is by no means settled. As between executor and devisee, there seems no doubt AS between that if it is apparent that the intention was that the 5 fixtures should go with the freehold they will pass to the devisee, although they are of such a sort that the executor might have been entitled to them against the heir. Wood v. Gaynon, 1 Ambl. 395 ; Norton v. Dashicood, (1896) 2 Ch. 497. 62 PERSONAL ESTATE IN POSSESSION. Executor of As between executor of a tenant for life and remainder- anTremaIn- fe man > tne rule is more favourable for the executors. Herman. Especially as regards trade fixtures. Law ton v.Lawton, 8 Atk. 13 ; Dudley v. Warde, 1 Ambl. 113. With regard to the right of the executor of tenant for life against remainderman to ornamental fixtures, not a single case is to be found ; but since the law is more favourable to the executor of tenant for life than to the executor of tenant in fee, it is clear that all cases which support the right of the latter, a fortiori support the right of the former. Paraphernalia. The Married Women's Property Act has not abolished the general law as to gifts of paraphernalia. Tasker v. T., (1895) P. 1. A wife may therefore still acquire paraphernalia by gift from her husband, so as to exclude his executors or administrators. Donations mortis causa. Before leaving the subject of the estate of personal representatives in the chattels personal in possession, it may be well to mention another species of interest in the property of the deceased which vests neither in the personal representative nor the heir. This is a donatio mortis causa. Where a man lies in extremity, or being surprised with sickness and not having an opportunity of making his will, but lest he should die before he could make it he gives with his own hands his goods to his friends about him : this, if he dies, shall operate as a legacy ; but if he recovers, then the property reverts to him. Hedges v. Hedges, Prec. Chanc. 269. CHATTELS PERSONAL HEIRLOOMS AND FIXTURES. Of such a gift there are three essentials : 1. The gift must be with a Anew to the donor's death. 2. It must be conditioned to take effect only on the death of the donor by his existing disorder. 3. There must be a delivery, and the donor must part with the dominion as well as possession. Probate of it is not necessary, nor is the executor's assent. But it is liable to duty and to the debts of the testator upon deficiency of assets. See further on this subject, Wms. 681 ; Hop. Leg. c. 1 ; Brett, L. C. 31. CHAPTER VI. CHOSES IN ACTION. What actions survive. Actions for tort. Generally. ALL personal actions founded upon any obligation, contract, debt, covenant, or other duty which the deceased might have brought, survive to his personal representatives. The executor or administrator is the only representative of a deceased that the law will regard in respect of his property, and no word introduced into a contract or obliga- tion can transfer to another his exclusive rights derived from such representation. This representation in matters of contract is so com- plete that, generally speaking, it is not necessary that the executor or administrator should be named in the terms of the contract, except where personal considerations are of the foundation of the contract, as in cases of principal and agent and master and servant. Farrow v. Wilson, L. R. 4 C. P. 745. Notwithstanding the old rule, Actio personalis moritur cum persona, an executor or administrator may now have an action for all injuries to the personal estate whereby it has become less beneficial to him, whatever the form of action may be. 1 Saund. 217, n. (1). Thus he may have an action for trespass or trover ; an action to recover the price paid by the intestate for value- less shares (Ticycqoss v. Grant, 4 C. P. D. 40 ; but see Re Duncan, (1899) 1 Ch. 387) ; an action to restrain the GENERALLY. 65 infringement of a trade mark and damages (Oakey v. I>alton, 35 C. D. 700) ; an action for falsely and mali- ciously publishing a statement calculated to injure the right of property in a trade mark. Hate-hard v. Mene, 18 Q. B. D. 771 ; and other actions of a like kind. See post, Chap. XIV. But he cannot maintain an action merely because the person injured incurred in his lifetime some expenditure of money in consequence of the personal injury. Pulling v. G. E. Ey., 9 Q. B. D. 110, 112. Actions for tort to the person or to the freehold of the testator do not as a general rule survive. Went. 166 ; but see Williams v. Brcedon, 1 Bos. & Pull. 330. But it has been thought that this is not the case with regard to chattels real. Went. 169. It is conceived, therefore, that actions for tort to the freehold will now survive, since freeholds now devolve upon the representative. By 3 \- 4 Wm. 4, c. 42, s. 2, the personal representative may, within a year after the death of the testator, bring an action for injury to real estate committed within six months before the death, and the damages shall be part of the personal estate. Qntere whether this applies to chattels real. An action for damages for obstruction to ancient lights lies against executors or administrators, though the obstruction was completed more than six months before the death of the obstructor. Jenks v. Clifden, (1897) 1 Ch. 694. By Lord Campbell's Act (9 & 10 Tict. c. 93), an action is maintainable against any person causing death through wrongful act, neglect, or default. The action is to be for the benefit of certain relations, and shall be brought by the personal representative. Sect. 2. The cause of action is beyond that which the deceased would have had. Pi/ in v. G. N. RIJ., 4 Best & Sm. 406. Executors can bring an action in Chancery Division for declaration as to the persons entitled to the money. Buhner v. lJuliner, 25 Ch. D. 409. L.R. !' 66 CHOSES IN ACTION. By 27 & 28 Viet. c. 05, where no action is brought by personal representative, it may be brought by persons interested. Judgment and satisfaction under Lord Campbell's Act is not a bar to a second action for damage to the personal estate. Leggott v. G. N. Ry., 1 Q. B. D. 599. In like manner a personal representative can sue for compensation under the Employers' Liability Act, 1880, and Workmen's Compensation Act, 1897. Actions ex If a personal representative can show that damage has 'trartw n ~ accrued to the personal estate by the breach of an express or implied promise, he may sustain an action at common law, although the action is in some sort founded on a tort. Alton v. M. Ry. Co., 19 C. B. N. S. 213, 242; Bradshaw v. L. & Y. Ry., L. R. 10 C. P. 189 ; and see Leggott v. G. N. Ry., supra. The rule that the personal representative may sue on all contracts with the testator broken in his lifetime must be understood with some qualification. No action it seems is maintainable upon an express or implied promise to the deceased, where the damage con- sisted entirely of injury to the deceased and without any injury to his personal estate. Chamberlain v. Williamson, 2 M. & S. 408 ; and see Finlay v. Chirney, 20 Q. B. D. 494. A further qualification is in respect of actions upon covenants real, which in many cases survive to the heir of the covenantee, even where he takes nothing by descent. Fitz. N. B. 145. But if such a covenant is broken in the lifetime of the testator or intestate, it would seem that the rule was that the personal representative might sue upon it. But see King v. Jones, 4 M. & S. 188. It is conceived, however, that the right to sue upon covenants real will now descend to the personal representa- tives and not to the heir, since the freeholds now devolve upon the former. It seems now, however, that an executor may sue on a PARTICULAR INSTANCES. 67 contract broken in the testator's life even where there is no damage to the personal estate. Raymond v. Fitch, 2 C. M. & R. 588 ; Ricketts v. Weaver, 12 M. & W. 718. An action will lie for an executor or administrator upon a promise made to the deceased for the exclusive benefit of a third party. Bajield v. Collard, Sty. 6. PARTICULAR INSTANCES. Where the Representative is entitled to Chases in Action. An annuity is so far considered personal property that, Annuities, although granted to a man and his heirs, it is not a hereditament within the Statute of Mortmain. But on the other hand it partakes of the nature of real estate in that, when granted with words of inheritance, it descends to the heir to the exclusion of the executor. Wms. 718. Unless, however, words of inheritance are employed it will pass to the executors. Parsons v. Parsons, L. R. 8 Eq. 260, where an annuity was given to A. B. for ever. See also Stafford v. Buckley, 2 Ves. Sen. 170 ; Aubin v. Duly, 4 B. Aid. 59. Shares in companies are generally personal estate Shares. (Companies Act, 1862, s. 22) ; but shares in some of the old canal companies have been held to be real estate. Stock in the public funds is personal property ; and stock, though it was at one time doubted, it is now settled that, like all other personal property, it is assets in the hands of the executor, and till he assents the legatee has no right to the legacy. 33 & 34 Viet. c. 71, s. 23. An interest in the testator's literary property and also Copyright. ciTtain works of art may devolve on the personal representa- tive, pursuant to several statutes. Wms. 724. An interest may also vest in him by virtue of a patent Patent, granted to the testator ; and by the Patents Act, 1883, s. 34, an application may be made by the personal repre- sentative to patent an invention of the testator. F2 68 Rent. Servants. Copyhold fines. CHOSES IN ACTION. Where a man seised in fee makes a lease reserving rent, the whole rent which becomes due after his death shall go to his heir, even though expressly reserved to his executors. But if a lessee for years make an underlease the rent accruing after his death shall go to his personal representa- tive even though reserved to the heir. Where no reversion is left in the lessor and the rent is reserved to his executors, administrators, and assigns, it will go to them and not to the heir. Jennison \. Lexington, I P. Wms. 555. If the rent be reserved for years and be severed from the reversion, it may then go to the personal representative although the reversion goes to the heir. Knollc's Case, Dyer, 5 b. Arrears of rent accrued in the lifetime of the deceased shall in all cases go to the personal representative as part of his personal estate. Went. 129. By the Apportionment Act, 1870, all rents are apportion- able. By the death of a master his servant is discharged, and therefore ' the executors or administrators of the former- can bring no action to enforce the contract of service after his death. Wentw. 141. Nor has the executor or administrator, generally speak- ing, any interest in an apprentice bound to the deceased. Post, 168 ; and see Ferns v. Carr, 28 C. D. 409. If the lord of a manor admit a copyholder, but die before the fine be paid, it will go to his executors. So also of reliefs and heriots. Co. Lit. 47 b. In the case of a sole corporation no chose in action can go in succession (Fill (rood's Case, 4 Co. 65 a) ; but by custom it may. Formerly, although the deceased had in his lifetime assigned his choses in action, still upon his death they vested in his personal representative because they were not assignable. Now, however, they are assignable. Jud. Act, 1873, s. 25 (6). HUSBAND AND WIFE. 69 The executor of a bankrupt is not entitled to his choses in action, for they are vested in the trustee in bankruptcy. Bankruptcy Act, 1888, s. 50 (5). The personal representative of a wife cannot apparently recover arrears of pin-money or arrears of alimony. Wms. 785. R'talit of Personal Representatice to Choses in Action as respects Husband and Wife. The result of the Married Women's Property Act, 1882, ss. 1, 2, 5, 19, is that, with regard, to such property as by sects. 2 and 5 is made the separate property of the wife, the husband will not be able, if he survive her, to claim such property jure, mariti, but only as administrator of his wife, and this equally whether the property consists of chattels in possession or choses in action, and whether or not the choses in action have been reduced into possession. As to the law relating to women married before the Act and acquiring title before that date, see Wms. 737. Action accrues after Death of Testator or Intestate. Upon the death of the testator or intestate, if any injury Actions for is done to his goods, his personal representative may bring execute?!! "* an action for damages for the tort, either in his own name tinQ e. or in his representative capacity, and whether he ever had actual possession or not. Hollis v. Smith, 10 East, 295 ; 2 Saund. 47, n. ; Frnser v. S. C. Co., I Ad. & E. 854. As already stated, these actions may be maintained although the injury was done before probate or administra- tion granted. Ante, p. 43. Au executor as such may maintain ejectment where the testator had a lease for years or from year to year upon an ouster after his death. Slade's Case, 4 Co. 95 a. 70 CHOSES IN ACTION. Suits accru- ing in time of executor on contracts made with testator. So an executor or administrator may sue as such as well as in his own name, upon a contract made with him in his representative capacity. And this he may do not only in cases where the consideration flows from the deceased, but also where it flows directly from himself as executor. Thus an executor may sue as such not only on an account stated with him as executor concerning money due to the testator, hut also on an account stated with him as executor concerning money due to him as executor. Wms. 762. It is now firmly established that wherever the money recovered will be assets the executor may sue for it and declare in his representative character. Abbott v. Parfitt, L. R. 6 Q. B. 346. But it is not established that all the executors may join in suing on a contract Avhether they all made the contract or not. Heath v. Chilian, 12 M. & W. 632. Where an administrator as such has paid that which he ought not he may in the same character recover it back again. Clark v. Hougham, 2 B. & C. 149. An executor or administrator may bring an action on a judgment recovered by him as such., and he may sue either in his representative capacity or in his own name. Crawford v. Whittal, Dougl. 4, n. (1). In man} 7 cases an action on which the deceased himself could not have sued, may accrue to the executor or administrator in his own time, upon a contract made with the testator or intestate in his lifetime. It has already appeared that where a cause of action accrued in the lifetime of the testator on a contract made to him, without naming his executors, or to him and his assigns, such chose in action, generally speaking, is trans- mitted to the executor (ante, p. 64), and the executor can also sue on such contract, although the action does not accrue till after the death of the testator. Thus if A. covenants with B. to make him a lease, and B. dies before it is made, his executor as such may WHERE ACTION ACCRUES AFTER DEATH. 71 have an action on the covenant. Chapman v. Dalton, Plowd. 286. So if A. covenant to grant a lease to B. and his assiynx, iind B. dies before the grant of the lease, it must be made to his executors as his assigns, or they may bring covenant. Went. 215. Likewise a right to sue which never existed in the deceased may accrue to his representative by remainder or by reason of a condition made to the deceased. Went. 181. The pledger has his whole life to redeem, unless called Executor of upon by the pledgee to redeem, and on his death, without p ed & or - such a demand, his personal representative may redeem. Story's Eq. 1032 ; Kemp v. Westbroolc, I Ves. 278. Executory and Contingent Interests. Contingent and executory interests, whether in real or personal estate, are transmissible to the representatives of a party dying before the contingency, upon which they depend, takes effect. Fearne, 554 ; Wills Act, 1837, s. 3. And such interests, though they do not vest in posses- sion, may vest in right so as to be transmissible to executors or administrators. Channcey v. Graydon, 2 Atk. 616 ; Peck v. Parrott, 1 Ves. Sen. 236. But it is obvious that where the contingency is the endurance of the life of the party entitled till a particular period, the interest itself will be extinguished by the death before that period arrives, and will not be transmissible to his executors or administrators. The executor or administrator of the object of a power cannot be an appointee under it. Thus, where a wife has power to appoint among children, and one dies before nppointraent, no part can be appointed to the executor or administrator. Maddison v. Andrew, 1 Ves. Sen. 59. 72 CHOSES IN ACTION. Of the Continuing of Actions. The practice with respect to the continuance of suits when the cause of action survives to the executor or administrator of the deceased is now regulated by B. S. C., Ord. 17. As to death after judgment and before execution, see E. S. C., Ord. 42, r. 23. The authority of an arbitrator is determined by the death of either party ; but qiuere whether the death of one party of one side does so. Re Hare, 6 Bingh. N. C. 163. But by special reference an award may be made available for or against the personal representative. Tyler v. Jones, 3 B. & C. 144. Only, however, where the cause of action survives for or against the personal representative. Bowker v. Evans, 15 Q. B. D. 565. Aliter where the cause of action has been determined and damages only are referred for assessment. Chapman v. Day, 48 L. T. 907. The authority of a solicitor in a cause is determined by the death of his client, consequently further proceedings must be made by the personal representative. Palmer v. Eei/enstein, 1 M. & G. 94. By 22 & 23 Viet. c. 35, s. 26, no trustee, executor or administrator doing any act bond fide under a power of attorney is to be liable by reason of death or other avoidance of the power. CHAPTER VII. REAL ESTATE. REAL estate now devolves upon personal representatives what real as if it were a chattel real, notwithstanding any testa- estatc P asses - mentary disposition. 60 & 61 Viet. c. 65, s. 1. But this does not include property vested in the deceased with a right in any other person to take by survivorship. Ibid. Therefore the estate of a coparcener is not within this exception and will pass under the Act. See Re, Matsun, (1897) 2 Ch. 507. Xor does it include copyholds nor customary freeholds where admission is necessary. Ibid. The section applies to real estate over which the deceased executes by will a general power of appointment, though it has no application to limited powers. Whether this is so where the appointment fails by the death of the appointee in the testator's lifetime depends upon the intention of the testator. Re Pincde, 12 C. D. 667. Real and personal property, therefore, over which a general power is exercised, become assets for payment of debts. And this appears to be the case where the donee is a married woman. Re Ann, (1894) 1 Ch. 549, 555. But personal property subject to a general power does not pass to the executor virtute ojficii, and therefore, it seems, still remains equitable assets only. See Jenncy \. Andrews, 6 Madd. 264. It is assumed that equitable as well as legal estates will 74 REAL ESTATE. pass, notwithstanding the marginal note speaks only of the " legal interest." 11 C. D. 460. The term real estate ordinarily includes incorporeal hereditaments, such as advowsons, tithes, commons, offices, dignities, franchises, annuities charged on land, and rent- charges. It would seem, therefore, that these will pass, with, however, some obvious limitations. It has been suggested that the true criterion of what real estate passes under the Act is to be found in the words "notwithstanding any testamentary disposition," or, in other words, that the true test is whether the estate is devisable. There is much force in the suggestion, and it has the merit of avoiding several difficult questions. There is little doubt that a vested remainder, whether present or future, will pass to the representative jnst as a chattel real in remainder does. Went. 189. And just as contingent and executory estates and possi- bilities in chattels real, accompanied by an interest, pass to the personal representative of a person dying before the contingency takes effect, so it would seem similar interests in freeholds will pass in the same way. Fearne, 554. Ante, p. 71. An estate pur antre ric where the heir is special occu- pant will, it is thought, pass under this sub-section. Comp. sect. 4 of Conv. Act, 1881 ; Wolst. 24 ; and see lie Sheppard, (1897) 2 Ch. 67. Ante, p. 55. Money to be invested in land must in any case pass to the personal representative ; but he will, it seems, hold it as real estate. An advowson will pass to the representative as real estate, but not the right to nominate, unless the living be vacant. Cripps, 456. So, too, rent-charges will pass. Formerly representatives were only liable for arrears of rent-charge accrued during lifetime of deceased, because the land out of which it arose did not pass to them (Eton Coll. v. Beaiichamp, 1 C. C. 131) ; but now, since the LAND TRANSFER ACT, 1897. 75 land itself devolves upon them, they will apparently be liable as terre-tenant, so long as they are in possession. Rights of entry, which are devisable, will, it is thought, pass. See Pemberton v. Barnes, (1899) 1 Ch. 544. The widow's right to dower will, it is thought, be excepted from real estate so passing. Spyer\. Hyatt, 20 B. 621. Heirlooms, not being real estate and not being devisable, will not, it is thought, pass under the Act. Ante, p. 60. An annuity to A. " and his heirs " is a hereditament; but queer e whether it will pass under this section. Chattels real will continue to pass under the old law ; but qucerc whether they are " land " within sect. 3. As real estate will now devolve like a chattel real, it will not, it is thought, vest in possession until entry by the personal representative. The Act, though in its title and preamble purporting to Whether establish a real representative, does not in terms authorise executors can the appointment of real representatives, but merely pro- be appointed vides that the personal representative shall be also the real representative. As to titles of Acts, see (1899) 1 Ch. 1. It is conceived, therefore, that a testator could not appoint separate executors of his real estate, as being contrary to the spirit and policy of the Act. See Re Parker, (1894) 1 Ch. 707 ; Re Ardern, (1898) P. 147. But in any case they would have to convey as personal representatives in order to imply a covenant against incum- brances. It will be seen that the vesting is to take place 011 the When vesting death. Sect. 1 (1). But where there are no representatives the legal estate will vest in the heir-at-law, until divested by the constitution of legal representatives. John v. J., (1898) 2 Ch. 573, 576. Sed qiuere, whether this applies to executors. The Act does not bind the Crown ; and, therefore, real Crown, estate vests in the Crown by escheat, and not in the Treasury Solicitor. Re Hartley, (1899) P. 40. Probate and letters of administration may now be granted Probate of real estate. 76 REAL ESTATE. Dealings before probate. in respect of real estate only, although there is no personal estate. Sect. 1 (3). And in granting letters of administration the Court will have regard to the rights of persons interested in the real estate, and the heir, if not one of the next of kin, shall be equally entitled to the grant with the next of kin. Sect. 2 (4). All rules, orders and instructions, and the existing practice of the Court with respect to non- contentious business, shall, so far as the circumstances of each case will allow, be applicable to grants of probate and adminis- tration made under the Land Transfer Act, 1897. Paile of 20th November, 1897. It is conceived that wherever there is realty, it will always be necessary to cite the heir, even where the husband is entitled to administration. See lie Roberts, infra. Under special circumstances the husband was passed over and administration granted to the heir, lie Ardent, (1898) P. 147. Where there is no personalty the grant will be made to the heir in general terms without giving notice to the next of kin. Re Barnett, (1898) P. 145. Where the heir cannot be found, a grant ad colligenda with power to deal with the real estate will be made until the heir can be cited. Re Roberts, (1898) P. 149. Before a creditor can obtain administration it will now be necessary to cite the heir as well as the next of kin. In future the old rule that a will of a married woman merely exercising a power over real estate, though appointing an executor, was not entitled to probate will be altered. See Re Tomlinson, 6 P. D. 209. Jurisdiction is now given by the Act to grant adminis- tration to real estate. Sect. 1 (3). The devolution of the estate of representatives will now apply to real estate. See ante, p. 7. All enactments and rules of law relating to the effect of probate or letters of administration as respects chattels LAND TRANSFER ACT, 1897. 77 real, and as respects the dealings with chattels real before probate or administration, and the powers of personal representatives in respect of personal estate, apply now to real estate, so far as applicable. Sect. 2 (2). Executors can now, therefore, take possession of the real estate and deal with it, and can commence actions before probate, but probate would be necessary before the hearing or before they can give a good title. The powers of administrators over real estate before letters are far more restricted, and they cannot sell or mortgage before the grant of administration. As to what executors can do before probate, see ante, p. 17 ; and as to what administrators can do before administration, see ante, p. 20. The rules of law with respect to the payment of costs Adminis- of administration and other matters relating to the administration of personal estate apply now to real estate so far as applicable. Sect. 2 (2). The costs of administration are now therefore, it would seem, to be borne by both the real and personal estate. But see sect. 2 (3), infra. The heir or devisee need not now in the first instance be made a party to an administration suit of real estate, at least before the assent of the representative has been given. And real estate is to be administered in the same manner, subject to debts, costs, and expenses, and with the same incidents as personal estate ; but not so as to affect the order in which real and personal assets respectively are now applicable for the payment of debts or legacies, or the liability of real estate to be charged with legacies. Sect. 2 (3). The principal effect of this seems to be that all freehold real estate will be charged with the payment of debts, though not in exoneration df personal estate. Although the effect of the Act is to create a mixed fund, it is conceived that the saving proviso in sect. 2 (3) will leave the legacies primarily chargeable upon the personalty 78 REAL ESTATE. in the absence of any express direction to the contrary. See Re Board, (1895) 1 Ch. 499. The powers, rights, duties, and liabilities of personal representatives in respect of personal estate shall apply to real estate, so far as applicable, as if it were a chattel real. Sect. 2 (2). Powers over It follows that the personal representatives will, in all cases, have power to take possession of the real estate, distrain for rent, sell or otherwise dispose of it, and generally deal with it as if it were personal estate. But all the representatives must join in a sale or transfer (sect. 2 (2) ), the Act thus placing them, as regards the sale of real estate, in the position of trustees. And a judgment for administration not registered as a Us pendens would not prevent such sale or mortgage. Bern/ v. Gibbons, 8 Ch. 747. It is submitted that a sale of freeholds after twenty years will now be subject to the same rule as leaseholds. See lie Venn and Furze, post, p. 88. Having regard to He Harkness andAllsopp, (1896) 2 Ch. 358, it would seem that a married woman cannot convey real estate vested in her by the Act as legal personal repre- sentative, except with the concurrence of her husband and by deed acknowledged. Whether representatives have power to lease seems doubtful, but it is assumed that they can to the extent indicated below. In dealing with leaseholds they may grant an underlease, if necessary for the due administration of the property, but cannot give an option of purchase, though advantageous to the estate. Oceanic Co. v. Sutherberry, 16 C. D. 236. The latter part of this rule will now, no doubt, apply to freeholds, and by analogy the executors will now be entitled to grant a lease where it is necessary for the due administration of the assets. But qiitere whether a lease would be a transfer within sect. 2 (2). LAND TRANSFER ACT, 1897. 79 It would seem that a personal representative may now Retainer, retain for his debt out -of real estate. Sect. 2 (8), and post, p. 117. But an executor being also trustee for sale of realty cannot set off a debt due from the heir against real estate descended to him. Milnes v. Sherivin, 33 W. R. 927. And the principle of this decision does not seem to be affected by the Land Transfer Act. For the purpose of the Statute of Limitations, time statute of begins to run against an administrator claiming a chattel ^ imitation8 - real, not from the grant, but as from the date of the death of the intestate. 3 & 4 Wm. 4, c. 27, s. 6 ; He Williams, 34 C. D. 558. And the same rule will now apply to real estate which vests in him as representative. At any time after the death of the owner of any land, Assent, his personal representatives may assent to any devise con- tained in his will, or may convey the land to any person entitled thereto. Sect. 3. Qutere whether "land" includes copyholds or leaseholds. Keal estate, being now liable for payment of debts, will not therefore vest in the heir or devisee until the assent express or implied of the representatives, or a conveyance by them. He will, however, have an inchoate right, which will pass to his representatives as real estate. Post, p. 132. The assent will relate back to the death, and so confirm any intermediate dealings. Post, p. 134. Assent to a tenant for life will be deemed an assent to remainders, and vice versa. Post, p. 135. Entry on land by a representative who is also a devisee will not of itself be proof of assent. Burton, 306. As regards real estate, the assent of all the representa- tives would seem to be necessary. Sect. 2 (2). The assent of a married woman representative seems open to the same objection as a conveyance by her. Ante, p. 78. Assent may be given before probate, but the title of the devisee will be imperfect. Ante, p. 18. 80 REAL ESTATE. But a conveyance to the heir cannot apparently be made before the grant of administration. The assent may be retracted under certain circumstances. Post, p. 134. The real estate, after payment of debts, is now distribut- able by the personal representatives, who hold it (subject as aforesaid) as trustees for the persons beneficially entitled. Sect. 2 (1). The effect of this section seems to be to make the executors, directly the estate is clear, trustees 'of the real estate, and the rents and profits thereof, for the persons beneficially entitled as from the death of the testator ; and this would seem to amount to an implied assent or appro- priation. The result may be that the executors may lose some of their rights, as, for instance, the right of retainer or set-off. See Battard v. Marsden, 14 C. D. 374. Personal representatives may now assent to a devise in the same way as they can assent to a legacy. Or they may convey the land to the person entitled as heir, devisee, or otherwise. Sect. 3 (1). But the assent or conveyance may be made subject to a charge for the payment of any money which the represen- tatives are liable to pay, in which case all liabilities of the representatives in respect of the land shall cease, except as to anything done before the assent or conveyance. Sect. 3 (1). If, after a year from the death, the representatives fail, on request, to convey to the persons entitled, the Court may order a conveyance to be made ; or, in case of registered land, that the person be registered as proprietor. Sect. 3 (2). The application would probably be by originating sum- mons, and it is conceived that a vesting order might be made under the Trustee Act, 1893, ss. 29, 31. Where the representatives are registered, a fee will not be charged for any transfer not for valuable consideration. Sect. 3 (3). LAND TRANSFER ACT, 181)7. 81 On the production of an assent in the prescribed form (see Rules, form 46), the person named therein will be registered as proprietor. Sect. 3 (4). The representatives may, in the absence of any provision Appropria- te the contrary, and with the consent of the person tlon ' entitled, appropriate any part of the residuary estate in or towards satisfaction of his legacy or share, and may for that purpose value, in accordance with the prescribed pro- visions, the whole or any part of the property ; but notice of such appropriation must be given to all persons interested in the residuary estate. Sect. 4 (1). From the marginal note it would appear that the section refers to the appropriation of " land " only. The section does not seem to extend the powers already possessed by personal representatives with regard to the appropriation of personal estate, which powers they now have over real estate, by virtue of sect. 2. And as regards real estate the section will be of little practical use until the mode of ascertaining the value is prescribed by rules, which has not yet been done. The section does not apparently apply to an intestacy. The right of an administrator to appropriate is therefore as before the Act, with the addition of a like right as to real estate. See Barclay v. Owen, 60 L. T. 220 ; post, p. 138. A conveyance by the personal representative of real estate by way of appropriation is not a conveyance on sale within the meaning of the Stamp Act, 1891. See sect. 4 (2). By sect. 5 nothing in Part I. of the Act is to affect any Duty, duty payable in respect of real estate, nor impose any fresh duty thereon. But it may be that this only applies to the quantum of duty, and not to the manner of payment. And, qiuere, whether estate duty is now a first charge on freehold real estate which passes to the executor as such, and consequently no longer comes within the letter or spirit of sect. 9 of the Finance Act. L.R. G 82 REAL ESTATE. Again, all freehold property being now in the same position as realty devised for payment of dehts, the para- mount power of sale of the executors must, it is thought, defeat the claim to succession duty, which is only payable on the beneficial interest. It would follow, therefore, that the only claim for succession duty would be in respect of the surplus, and that a purchaser would not, any more than in the case of leaseholds, be bound to concern himself about the liability of the property to succession duty. A sale by executors for the purposes of administration will, it is thought, be as free from duty as a sale for raising estate duty under sect. 9 (5). CHAPTER POWERS OF REPRESENTATIVES. Of Powers generally. AFTER the administration is granted, the power of an administrator is eqnal to that of an executor. As we have already seen, an executor or administrator To bring has the same property in the personal effects as the act deceased had when living, and so he has the same power to hring actions to recover them. Cobbett v. Glutton, 2 C. & P. 471. But an executor de son tort cannot hring any action in right of the deceased, except where mere possession is a primil facie title. Ante, p. 18. Within a convenient time, and without force, the personal To enter representative had a right to enter the house descended house - to the heir to remove the goods ; but now it seems he is entitled to possession of the real estate. 60 & 61 Viet. c. 65. He has also a right to take deeds or other papers belonging to the deceased ; and need not give a schedule of such deeds and papers. Cobbett v. Glutton, 2 C. & P. 471. If he cannot take possession of the assets without force, he must desist, and resort to his action. Wentw. 81, 202. The personal representatives can distrain for arrears of To distrain, rent (3 & 4 Wm. 4, c. 42, s. 87) ; or any one of them may distrain alone. 3 Bac. Abr. 30. If an administrator makes an underlease of a term of years of the deceased, reserving rent to himself, his o2 84 POWERS. Absolute power of disposal. But not for his own purposes. executors, c., his executors, and not the administrator de bonis non, shall have the rent ; but it seems they can- not distrain for it (Drue v. Baylie, 1 Freem. 392, 403) ; because the reversion belongs to the administrator de bonis non ; and a reversion is necessary to found the remedy by distress. The personal representative has an absolute power of disposal over the whole of the assets ; and they cannot be followed by creditors, much less by legatees, even though specific. Simpson v. Morley, 2 K. & J. 71, 75 ; Wolvcr- liamptoii Bank v. Marston, 7 H. & N. 148. The principle is that the representative in many instances must sell in order to perform his duties, and no one would deal with him if liable afterwards to be called to account. An executor or administrator purporting to act as such will generally confer a good title upon an alienee to whom he conveys or transfers a legal estate or title, and the alienee is under no obligation to see the consideration money properly applied. Ricketts v. Lc'U'is, infra. If an executor who is also residuary legatee sells or mortgages for his own purposes an asset to a person who has no notice of unsatisfied debts or of any ground which rendered it improper, the purchase or mortgage is valid against an unsatisfied creditor, even though such purchaser or mortgagee has acquired only an equitable interest if perfected by notice. Graham v. Drummond, (1896) 1 Ch. 968. This rule, however, does not apply if the executor or Court still retains sufficient control over the asset to apply it for the benefit of creditors. Ibid. , Where there was a judgment for administration not registered as a lispendens, and the executor and residuary legatee, both with notice, assigned to a bond fide purchaser for value without notice, it was held that the assignment was effectual to vest a good title in the purchaser. Lonergan v. Hoban, (1896) 1 Ir. R. 401. But as the executor or administrator has no right to- '.KNERALLY. 8.", raise money for his own purposes or otherwise than for the purpose of performing the duties of administration, so a mortgage for purposes foreign to the administration will In set aside as against a mortgagee who has notice of the purpose for which the money is raised. Iticki'tts v. Lcicis, infra. Thus an administrator has no power to mortgage leaseholds to raise money for repairs where there is no covenant to repair. Richetts v. Lewis, 20 C. D. 745. An executor as executor borrows money ostensibly for executorship purposes on the security of the testator's assets; this is a valid transaction. Berry v. Gibbons, 8 Ch. 747. A man known to be an executor borrows on the security of the assets admittedly for his own private purposes ; that is invalid. Wilson v. Moore, 1 M. & K. 337. An executor, not known to be such, borrows money for his own private purposes on the security of that which appears to be his own property, but which is really the testator's property. This was held to be invalid, but the mortgage was an equitable one, and the question was between two equitable titles, lit- Morgan, 18 C. D. 93. Sales made thirty-three and twenty-seven years after the Sales after death of the testator have been enforced. Wrigley v. Sykff, * !nt yy ears 21 B. 337 ; Sabin v. Heape, 27 B. 553. The rule that after twenty years a purchaser of real estate is put upon inquiry as to the executor's right to sell, does not apply to leaseholds. Re Venn and FHW, (1894) 2 Ch. 101. And it is submitted that the rule will no longer apply to . real estate which vests in the executor as such. Post, p. 88. The powers of personal representatives in respect of personal estate now apply to real estate so far as applicable ; but they must all join in a sale or transfer of real estate. 60 & 61 Viet. c. 65, s. 2 (2). It is thought, therefore, that personal representatives have now in all cases a power to sell real estate for payment 86 POWERS. of debts, just as they had before the Act where there was a charge of debts or legacies. But a charge of legacies on land devised beneficially in fee or in tail did not give executors a power of sale. Ee Rebbeck, (1894) W. N. 68. Mortgage. The personal representative may in his discretion and for executorship purposes mortgage the assets, even though an administration decree has been made. Berry v. Gibbons, L. E. 8 Ch. 747. Or may pledge a part of them. Russell v. Plaice. 18 Beav. 28. He may also effect a mortgage of leaseholds to a building society with a power of sale. Cmikshank v. Duffin, 13 Eq. 555 ; Thome v. T., (1893) 3 Ch. 196. He may also assign the book-debts of the testator to one of the creditors, to secure the payment of his debt, and give him a power of attorney to collect them. Vane v. Rigden, 5 Ch. 663. Collusion. On a sale or mortgage by a representative the purchaser or mortgagee is not bound to see to the application of the money unless there is fraud or collusion. Re Morgan, 18 C. D. 93. But where there is fraud or collusion the transaction cannot stand, and will be set aside. What will amount to a case of fraud will appear from the following : A sale cannot stand if the property be sold at a fraudulent undervalue. Scott v. Tyler, 2 Dick. 725 ; Ewer v. Corbett, 2 P. W. 149 ; M'Mullen v. O'Reilly, 15 Ir. Ch. E. 251. The executor cannot sell or pledge the assets for raising- money to carry on the testator's business. McNeillie v. Acton, 4 D. M. & G. 744. Though he may sell or pledge any part of the property actually employed in the business. Deritt v. Kearney, 13 L. E. Ir. 45. An administrator has no power to mortgage leaseholds of the intestate under leases not containing repairing GENERALLY. 87 covenants in order to raise money for repairing the property, and such a mortgage will be set aside as against a mortgagee who has notice of the purpose for which the money is raised. Hicketts v. Lewis, 20 C. D. 745. Nor may he sell or pledge in order to pay or secure his own debt. Scott v. Tyler, supra ; Jones v. Stilhwasser, 16 C. D. 577 ; Hill v. Simpson, 7 Yes. 169 ; lie Morgan, ante, p. 85. Or for a debt wrongfully contracted by him as executor. Collinson v. Lister, 20 Beav. 356. But if the executor be also the specific or residuary legatee he may dispose of assets in payment of his own debt. Taylor v. Hawkins, 8 Yes. 209 ; Mead v. Orrery, 3 Atk. 235 ; Starry v. If *alsh, 18 Beav. 559. But not if he is specific or residuary legatee jointly with others or subject to charges under the will. Bouncy v. Ridfjard, 1 Cox, 145 ; Hill v. Simpson, 7 Yes. 152, 170. And see Re Queales, 17 L. E. Ir. 361. Nor can he so pay his own debt if the creditor has express notice that any debt remains unsatisfied. Whale v. Booth, 4 T. B. 625, n. ; Hall v. Andrews, 20 W. R. 799. So if the purchaser or mortgagee has legal evidence that the advance is meant to be applied to the private purposes of the executor, the transaction cannot stand. M'Leod v. Dmmmond, 17 Yes. 152. And if a person owe money to a testator's estate, and be apprised that the executor means to misapply it, he cannot safely hand it over. Strouffhill v. Anstey, 1 D. M. & G. 648. A purchaser cannot purchase from the executor a chattel specifically bequeathed, if he has notice that there are no debts unpaid. Ewer v. Corbett. 2 P. AY. 149. And see M' Mullen v. O'Reilly, 15 Ir. Ch. R. 251. Mere lapse of time, though more than twenty years, does not give rise to the presumption that all the debts have been paid and that the executor has ceased to be executor. Charlton v. Jhirham, L. R. 4 Ch. 438. 88 POWERS. Executor cannot purchase assets. Power to assign leases. Or underlet. So where there had been a lapse of thirty-five years from the testator's death, and no allegation of debts, it was held that the executor could still give a receipt. Lewin, 531 ; ante, p. 85. But as to real estate the rule is that after twenty years the executors, selling under a charge of debts, must show that there are debts still unpaid. Re Tanqueray-Willaumc, 20 C. D. 465 ; Re Ryan, 17 L. E. Ir. 42. This rule, however, does not apply to a sale of lease- holds (Re Venn and Furze, (1894) 2 Ch. 101) ; and it is submitted that the ratio decidendi of Re Venn and Furze clearly applies to freeholds which vest in the representative as such under the Land Transfer Act, 1897. Where there is collusion the assets may be followed within a reasonable time (M'Leod v. Drummond, 17 Ves. 152); but in no case after twenty years. Andrew v. Wrigley, 4 B. C. C. 125. An executor cannot immediately, or by means of a trustee, purchase the assets from himself, and shall be considered a trustee for the persons interested, and shall account for the utmost advantage made by him out of such purchase. Hall v. Hallctt, 1 Cox, 134 ; Watson v. Toone, 6 Madd. 153. But an executor of a deceased partner may sell his share to the surviving partners, if it can be fairly and properly done. Chambers v. Howell, 11 Beav. 6. A sale is not avoided merely because the purchaser may, at his option, become trustee or executor, if in point of fact he never does become such. Clark v. C., 9 App. Cas. 733. A representative may dispose absolutely of a term of years, even against a specific legatee. Bac. Abr. Leases, I. 7. Or may grant an underlease if necessary for the due administration of the estate, but he cannot give an option of purchase at a future time. Oceanic Steam Co. v. Sutherberry, 16 C. D. 236. But an underlease cannot be granted where a sale is JKXEHALLY. *!) called for. Drolian v. D., 1 Ball & B. 185 ; Krans v. Jackson, 8 Sim. 217. The power to assign or underlet is restrained by a condition not to assign where the executor or administrator is named in the condition or covenant. But if not named it is doubtful whether the restriction will extend to them, though it would seem that it will not. Wins. 810; Seers v. Hind, 1 Ves. 294. But an administrator will be restrained, as assignee, where .s.s/^/s are named. More' 8 Case, Cro. Eliz. 26. Equity will not afford relief against forfeiture so occasioned. Couv. Act, 1881, s. 14. Leases, it is conceived, may now be granted of the Power to real estate which has devolved upon the representatives, where it is necessary for the due administration of the estate ; but any person taking such a lease will, it is thought, do so at the risk of having to show that it was properly granted in the due administration of the executor's office. See Oceanic, d~c. v. Sutherberry, supra. The representatives' power of disposal is not affected by Powers how the commencement of a creditor's administration action, " in^stra- but continues till judgment. Xeeres v. Burragc, 14 Q. B. tion action. 504 ; lie Barrett, 43 C. D. 70. But see Berry v. Gibbons, infra. And it has been held that a decree for administration, without any injunction or appointment of a receiver, does not take away the power of the executor to deal with the assets. Berry v. Gibbons, 8 Ch. 747. Nor release him from his duties. Garner v. Moore, 3 Drew. 277. A promissory note or bill of exchange made payable Power to to the deceased or his order, may be indorsed by his representative. And may be indorsed in such terms as to negative personal liability. Bills of Ex. Acts, 1882, s. 31 (5). Where a payee of a note indorsed it, but died before delivery, delivery by his executors without any indorsement 90 POWERS. Cannot sell by attorney. He-insurance. Election. Compromise. by them was held inefficacious. Bromage \. Lloyd, 1 Exch. 32. Where the drawee of a bill is dead, presentment for acceptance may be made to his personal representative. Bills of Ex. Act, 1882, s. 41 (1, c). The holder now has an option, and presentment is excused, and a bill may be treated as dishonoured by non-acceptance where the drawer is dead. Ibid., s. 41 (2, a). Where the drawee or acceptor of a bill is dead, and no place of payment is specified, presentment for payment must be made to a personal representative, .if such there be and can be found. Ibid., s. 45 (7). If a person indebted to another gives him a blank acceptance for a certain sum, and the donee subsequently dies, his administrator may fill up the paper as a bill payable to drawer's order, insert his own name as drawer, and enforce payment against the acceptor. Scard v. Jackson, 24 W. K. 159. Delegates non potest delegarc. Therefore where a power of sale is given to executors they cannot sell by attorney. Comic's Case, 9 Co. 75. But see now 60 & 61 Viet. c. 65, s. 2 (2). Formerly re-insurances were illegal, though the personal representatives might re-insure. But now by 30 & 31 Yict. c. 23, ss. 3, 4, Sch. D., they are legal, without any necessity for their appearing to be re-insurances on the face of them. An executor may in some cases claim by election ; as where the testator at the time of his death was entitled out of several chattels to take his choice of one or more to his' own use. Toller, 174. By the Trustee Act, 1893, s. 21, an executor or administrator may pay or allow any debt or claim on any evidence he thinks sufficient ; and may accept a com- position, compromise, abandon, submit to arbitration, or otherwise settle any debt or claim in good faith. This power may now, it seems, be exercised with respect GENERALLY. 91 to real estate devolving on the personal representatives under the Land Transfer Act, 1897. See Abdullah v. Richards, 4 Times R. 622. The power to compromise applies as much to a legatee as to debts owing to or from the testator's estate. Re Warren, 32 W. R. 916. The section does not authorise executors to enter into a compromise with respect to the validity of the will or the testamentary power of the testator. Abdullah v. Richards, 4 Times R. 622. A compromise by executors of a debt due from one of themselves would not, it seems, be upheld unless it would clearly benefit the estate. DC Cordova v. De C., 4 A. C. 692 ; Stott v. Lord, infra. The question to be considered is whether the repre- sentatives have acted in good faith ; and it is not for them to show that the transaction was a proper one, but for those impeaching it to show its impropriety. Re Broaden, 38 C. D. 546. Powers of One of Several Representatives. Co-executors, however numerous, are regarded in law as one person ; and therefore the acts of one are deemed to be acts of all. Hence a release of a debt by one is valid, and shall bind the rest. Jacomb v. Hartrood, 2 Yes. 267 ; Herbert v. Pigott, 2 C. & M. 384. But see Stott v. Lord, infra. So a receipt by one is a good discharge, though he forges the signatures of his co-executors. Charlton v. Durham, 4 Ch. 433. So one may settle an account, and in the absence of fraud it will be binding on the others, though dissenting. Xmith v. Krerett, 27 Beav. 446. . So one may probably indorse a bill of exchange. Chalmers, 5th ed. 127 ; Rey. v. Winterlottom, 2 C. Jt K. 37. 92 POWERS. So a grant or surrender of a term by one is good. .Simpson v. Gufteriage, 1 Madd. 616. And the attorument of one shall be the attornment of the other. Ibid. So the acknowledgment by one is sufficient to bind the estate and prevent the Statute of Limitations running. lie MacdonaU, (1897) 2 Ch. 181. But an acknowledgment by one executor and trustee against the will of the other, that more than six years' interest is due upon a mortgage, cannot be treated as the act of the two as regards the real estate, so as to prevent the statute running. Astbury v. A., (1898) 2 Ch. 111. tSemble, such an acknowledgment would be effectual in the case of a claim against the personal assets. Ibid. So the sale or gift by one of several executors of the goods of the deceased is the sale and gift of them all. Touchst. 484. And the purchaser of a specific legacy from one executor Avho is also the legatee is not bound to inquire whether the other executors have given their assent. Cole v. Miles, 10 Ha. 179. But where one of two executors, erroneously believing that he was acting with the authority of the other, con- tracted to sell leaseholds, it was held that the purchaser could not enforce specific performance of the contract. Sneesby v. Thorite, 7 D. M. & G. 399, And one executor cannot enter into a contract, for one executor is not the agent of another to bind him by contract. Turner v. Hanley, 9 M. & W. 770. One executor cannot without the authority of the Court sell or transfer real estate. 60 & 61 Viet. c. 65, s. 2 (2). Qiucre, whether this applies to a mortgage. Where a compromise by one executor was against the will of his co-executors, and had the effect of relieving him from a liability which he was under to the testator's estate, it was set aside. Stott v. Lord, 8 Jur. N. S. 249. Payment by a debtor, for the express purpose of OF ONE OF SEVERAL. . discharging his debt to an estate, to his own agent, who happens to be, but not to the debtor's knowledge, one of the executors of the estate, is not sufficient to discharge the debtor. Miller v. Douglas, 56 L. J. Ch. 91. In a company under the Companies Act a valid transfer may no doubt be made by one of two executors, who are noted as executors but not registered as shareholders, subject to any provisions in the articles. Buckley. But if in a company under the Companies Clauses Acts the names of the executors are placed on the register, even though under the description of executors, they become joint shareholders in their individual capacity, and any transfer must be made by all of them. Barton v. L. ,r .V. Jr. Ey. t 24 Q. B. D. 77, post, p. 162. And a transfer by one to which the signature of the other is forged does not pass a moiety of the shares or stock, but is inoperative altogether. Barton v. N. S. Ry., 38 C. D. 458. One executor cannot therefore transfer railway shares or stock, since these are governed by the Companies Clauses Act. Barton v. L. <(' A". W. lit/., supra. The Bank of England require all the executors who have proved to join in any transfer of stock standing in the name of their testator. 33 & 34 Viet. c. 71. One executor can assent to a legacy, and even his single assent to his own legacy will vest the complete title in himself. Cole v. Miles, 10 Ha. 179. And one executor can retain for his own debt ; and also out of a legacy to his co-executor in respect of a derastai'it by the latter. Sims v. Douyhty, 5 Ves. 243 ; post. One may take possession of the effects so as to cause a joint possession, but not so as to attach a liability or impose a charge on the others, as if one takes possession and enjoys a term, such enjoyment is not the enjoyment of all so as to render them chargeable. Nation v. Tozcr, I C. M. & K. 172. And so though one may dispose of the assets so as to POWEKS. bind all, he is not their agent so as to bind them by his contracts. Turner v. Hardey, supra. How far a devastavit by one will affect the others, see post, p. 183. One of several administrators stands on the same footing as one of several executors. Jacoinb v. Hancood, 2 Ves. Sen. 267 ; Smith v. Everett, 27 Beav. 454. The powers of a deceased executor or administrator go to the survivor or survivors (Trustee Act, 1893. s. 22) ; and where one renounces, those who prove can exercise the powers alone. Crawford v. Forshaw, (1891) 2 Ch. 261. But if a sole executor renounces, the power is extin- guished. Att.-Gen. v. Fletcher, 5 L. J. Ch. 75. The question whether some or one of several executors could exercise a power to sell land has been much discussed. Wms. 821. But see now L. T. Act, s. 2 (2), and as to copyholds. Peppercorn v. Way man, 5 De G. & S. 230. Now, however, as to persons dying after 1st January, 1898, the freehold real estate vests in the personal repre- sentatives, and cannot be sold by some or one of them without the authority of the Court. L. T. Act, s. 2 (2). Qufere, whether a power given to persons nominatim would survive, or indeed could be exercised at all, after the Land Transfer Act, 1879. All executors must join in bringing actions, even though some be infants. Smith v. S., Yelv. 130. But where one only has proved, he may sue alone. D. C. P. 224. If all have proved, and one sue alone, the defendant may apply to the Court to have the others joined as co-plaintiffs. . R. S. C., Ord. 16, r. 11. Generally speaking, one executor cannot sue or be sued by his co-executor, nor after the death of one can his executor be sued by the survivors for a debt due to their testator. Wentw. 75. But where an executor is also a creditor and does not prove, he can sue the other executor. Rawlinson v. Shaiv, OF ONE OF SEVERAL. 95 3 T. R. 557. And he can also sue to protect himself. Gleadow v. Atkin, 2 C. & J. 548 ; Miles v. Dtirnford, 2 De G. M. & G. 641 ; Robinson v. Harkin, (1896) 2 Ch. 415. Executors may agree that one of them shall hold the land devised to them in trust at a fixed rent, and may distrain for arrears. Cowper v. Fletcher, 34 L. J. (N. S.) Q. B. 187. But the rent must be a fair occupation rent. De Cordova v. D., 4 App. Cas. 692. Powers of Executor of Executor, Administrator de, d-c. In all cases, except of special trust or authority, the Executor of executor of an executor stands in the same position as the executor> first executor. But where a power is of a kind that indicates a personal confidence, it maatprimd facU be understood to be confined to the individual to whom it is given, and will not, except by express words, pass to others to whom, by legal trans- mission, the same character may happen to belong. Cole v. Wade, 16 Ves. 27 ; Re Cooke, 4 C. D. 454. The numerous cases on the question whether a power is a personal confidence, or transmissible with the office or estate, are almost all cases of power to sell land. The question, however, has ceased to be of much importance since the Conv. Act, 1881, a. 30, and Trustee Act, 1893, s. 22. But see Re Ingleby, * according to the law of England, among English and foreign creditors alike. He Klcebe, infra. But if foreign assets are distributed so as to give foreign creditors priority, no doubt the English Court in dis- tributing the English assets would be astute to equalise the payments and take care that no foreign creditor should receive any thin' g till the English creditors had been paid an equal amount. Ee Klcebe, 28 C. D. 175, 177. It is the practice of the Courts in all countries to retain assets within their jurisdiction for the purpose of insuring payment of debts ; and only after they are paid to allow the surplus to be remitted to the principal administrator in a foreign country. De Penny v. Clfristie, supra. A solicitor has a lien on a fund recovered for his client before the specialty creditors of the deceased client ; nor can his personal representative controvert this rule by insisting upon applying the assets in a course of administra- tion. Tnrwin v. Gibson, 3 Atk. 720; Lloyd v. Mason, 4 Ha. 132. To all other debts, those due to the Crown by record or specialty have precedence ; but only those due by record or specialty are so privileged. Went. 262 ; but see Re Bent inch-, infra. Thus fines for copyhold estate and arrears of rent are not so privileged ; and a recognizance in Chancery, by a guardian in the matter of a minor, is not a Crown debt. Wms. 855. PAYMENT OF DEBTS. 107 But it seems that if the Crown debt and that of a subject are both inferior to debts of record, the Crown shall be preferred, lie Bentinck, (1897) 1 Ch. 673 ; 3 Bac. Abr. 80. By 55 Geo. 3, c. 184, s. 45, the commissioners of stamps are authorised, in certain cases, to give credit for the duties on probates and administrations ; and by sect. 48 the duty for which credit is so given shall be a debt to the Crown, and be paid in preference to any other debt whatsoever. By the same section a representative paying any debt in preference thereto is made personally liable. It is thought that these provisions will now apply to estate duty under the Finance Act, 1894, s. 8 (1). See Hanson, 182. Next in order are certain specific debts which are by Debts given particular statutes to be preferred to all others. particular^ By the Preferential Payments in Bankruptcy Act, 1888, statutes, rates and wages are to have priority when the estate is being administered in Chancery, lie Heywood, (1897) 2 Ch. 593 ; post, p. 113. By 17 Geo. 2, c. 38, s. 3, money due to the parish by overseers is to be paid before any other debts. But guardians are not preferential creditors against the estate of a deceased pauper for maintenance, and the executor may retain before satisfying their claim. Laver v. Botham, (1895) 1 Q. B. 59. So by 59 & 60 Viet. c. 25, s. 35, the money due from an officer of a registered friendly society shall be paid in preference to any other debt or claim against his estate. Ex parte Edmonds, 30 W. R. 432; lie Miller, (20 Jan., 1893) Brabrook, 13th ed. 173 ; 51 & 52 Viet. c. 62, s. 2. But he must receive the money by virtue of his office. lie Aberdein, (1896) W. N. 154. The same rule applies to officers of savings banks. 26 & 27 Viet. c. 87, s. 14. By 26 & 27 Yict. c. 57, provision is made for the pre- ferential payment of regimental debts and the distribution of the effects of officers and soldiers in case of death. 108 PAYMENT OF DEBTS. Again, money due from the deceased as officer of paving commissioners under 57 Geo. 3, s. 51 (local Act), is to be paid in preference to other debts except Crown debts. The words in the above Acts are very wide ; sufficient as it seems to give preference against Crown debts, though perhaps they Avould not be so construed. 6 Ves. 99. The 10th section of the Jud. Act, 1875, does not introduce into the administration of insolvent estates the provision of the Bankruptcy Act that all debts with certain exceptions are to be paid pari passn. It affects only the rights of the class of secured creditors as conflicting with those of the class of unsecured creditors, and does not affect the rights inter se of the members of those classes, lie Mayai, '20 C. D. 545 ; and see lie Oriental Bank, 28 C. D. 643, 649 ; Mersey, Ac. v. Naylor, 9 Q. B. D. 648, 662. The Jud. Act does not incorporate the rules of bank- ruptcy into administration for all purposes, but only " as to the respective rights of secured and unsecured creditors, and as to the debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively." lie May, 45 C. D. 499, 502. Debts of Record. Next in priority of payment come debts of record, of which there are two sorts, viz. : (1) Judgments in courts of record ; (2) Recognizances and statutes. Judgments. Such judgments are precedent in degree not only to all debts by specialty, but to recognizances and statutes, and must be preferred by the executor or administrator whether prior in point of time or not. Therefore he must discharge a later judgment in preference to a statute or recognizance in time precedent. Went. 267. Judgments entitled to this precedence are not only those of the High Court, but also those of any court of record. DEBTS OF RECORD. 109 But an order giving leave to sign judgment under Ord. 14 against the legal representative does not give priority. Re Gurnet/, (1896) 2 Ch. 863. Nor does an order nisi to sign judgment. Hanson v. Stttlls, 8 C. D. 154. By R. S. C., Ord. 17, r. 1, there shall bo DO abatement by the death of either party between verdict and judgment, but judgment may be entered notwithstanding the death. By Ord. 41, r. 3, when any judgment is pronounced by the Court or a Judge in Court, the entry of the judgment shall be entered as of the day on which such judgment is pronounced, unless the Court or a Judge shall otherwise order, and the judgment shall take effect from that date ; but by special leave a judgment may be ante -dated or post-dated. By Ord. 41, r. 4, in all cases not within the last rule the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that day. Where a creditor obtained judgment against the executor on the same day that a decree was made for administration, it was held that the judgment and decree were obtained at the same time and that the judgment had no priority. Parker v. Ringham, 33 Beav. 535. A judgment in a foreign country is considered in our Foreign Courts merely as a debt by simple contract. Duple ix v. ]U DC Roven, 2 Yern. 540 ; Re Boyse, 15 Ch. D. 591. And an Irish judgment is not entitled to priority as an English judgment. Harris v. Sounders, 4 B. & C. 411 ; Ferguson v. Malmn, 11 A. & E. 179. But a foreign judgment, on an administration here, will be allowed any priority which it had by the law of the country under whose grant foreign assets have been remitted to England. Ibid. By the Judgments Extension Act, 1868, Irish and Scotch judgments may be registered in England and then 110 PAYMENT OF DEBTS. Judgment representative himself. liegistration. Decrees. become English judgments. Re Low, (1894) 1 Cli. 147, 158 ; and see Re Watson, (1893) 1 Q. B. 21. A judgment against the personal representative himself ^ s no ^ ^ e same as one recovered against the deceased, for it has no priority except with regard to debts of equal degree with that upon which the creditor has obtained judgment. Re Maygi, 20 C. D. 545 ; Dollond \. Johnson, Sm. & G. 301. As between the creditor and himself, however, the representative may be compelled to satisfy the judgment de bonis 2>ropriis. Abbis v. Winter, 3 Swans. 579, n. The executors of a judgment creditor are not entitled to a receiver or an injunction against the judgment debtor's property. Norburn v. N., (1894) 1 Q. B. 448. A judgment debt has no priority in bankruptcy. Every judgment debt carries interest at 4 per cent, from the time of entry. R. S. C., Ord. 42, r. 16 ; Taylor v. Roe, (1894) 1 Ch. 413. On the death of the debtor his judgment debts must be paid in full before any of his debts on bond or by simple contract. But by 23 & 24 Viet. c. 38, ss. 3, 4, in order to secure this preference the judgment must be registered or re-registered within five years before the death of the deceased in the same manner as was required in order to affect lands in the hands of purchasers or mortgagees. An unregistered judgment ranks only as a simple contract debt. Van Gliehdve v. Nerinckx, 21 Ch. D. 189. This only applies to judgments against the deceased. Therefore a judgment debt against the legal representative, though unregistered, is still entitled to priority. Williams ' v. W., L. R. 15 Eq. 270. Among judgment creditors there is no priority as to time or otherwise ; therefore, before execution, the repre- sentative may pay whom he will first. Went. 269. A decree in equity, provided it were final, was equivalent to a judgment at law. Shafto v. Poivel, 3 Lev. 355. But an order to account or for foreclosure was held to give no DEBTS OF RECORD. Ill priority, even where there was an order for payment of the result of the account. Pern/ v. Phdips, 10 Ves. 34 ; Wilson v. Dunsany, 18 Beav. 293, 299. Next in rank to judgments are recognizances and statutes. Recog- The latter, however, are practically obsolete. A recognizance is an obligation entered into before some court of record or magistrate, duly authorised, with condi- tion to do some particular act, as to keep the peace or pay a debt. It is not a record until enrolled, and until enrolment it is not entitled to precedence. Bothomly v. Fairfax, 1 P. Wins. 334. It is payable out of the personal estate of the debtor, in the event of his decease, next after judgment debts and before specialty debts. Ibid. A sum of money due from a receiver is a debt of record, so long as the recognizance exists. Seagram v. Tuck, 18 C. D. 296. Specialty and Simple Contract. Formerly next in precedence in order of payment were debts by special contract, which must have been paid before debts by simple contract. But now by 32 & 33 Viet. c. 46, in the administration Hinde- of any person dying on or before 1st January, 1870, no Falmcr ' sAct - specialty debt is to have priority, and all creditors as well specialty as simple contract shall be in equal degree and be paid accordingly out of the assets, whether legal or equitable : Provided that the Act shall not affect any lien, charge, or other security which any creditor has for payment of his debt. The Act does not prevent a judgment creditor from having priority, though his judgment be not registered. Williams v. W., 15 Eq. 270. A debt for rent has now no preference. Re Hastings, Rent. 6 C. D. 610 ; but see 51 & 52 Viet. c. 62, s. 1 (4). 112 PAYMENT OF DEBTS. Voluntary A bond or covenant or promissory note, merely voluntary, fooncte shall be postponed to simple contract debts, but must be paid by the executor before legacies. Dawson v. Kearton, 3 Sm. & G. 186 ; Re Whitaker, 42 C. D. 119. But the payee of a voluntary promissory note is not even in the administration of a solvent estate in the same position as the payee of a voluntary bond, so as to be entitled to claim against the estate after creditors for value. Re Whitaker, supra. A voluntary bond assigned for value stands upon the same footing as a bond originally given for value, and accordingly the assignee for value of an equitable interest in the money payable under a voluntary bond is not post- poned to simple contract debts. Payne v. Mortimer, 4 De G. & J. 447. But in bankruptcy voluntary bonds are paid pari passu with debts for valuable consideration. Ex parte Potinger, 8 C. D. 621. An executor must not pay a bond ex turpi causa ; such payment would amount to a devastarit. Robinson v. Gee, I Ves. 254. A distinction is drawn between contingent securities and those for future debts. The rule under the old law (which may have some application to the present) appears to have been that where it was uncertain whether anything would ever become payable on the special security it should not stand in the way of simple contract deeds ; but where a sum would certainly become due, though on a future day, the special security was entitled to priority like any other, obligation of its class. Wms. 871. Under the present law, therefore, it is conceived that a debt in futuro would have to be met by the executor, but not a contingent debt, unless the estate was insolvent, in which case the creditor might have his debt valued and prove immediately. Jud. Act, s. 10. As to appropriation to meet legacies in futuro, see post. SPECIALTY AND SIMPLE CONTRACT DEBTS. 113 As to debts by simple contract, those due to the Crown Debts b 7 simple shall, it seems, still be satisfied before debts due to contract, subjects. See Re Bentinck, (1897) 1 Ch. 673. Where the estate is insolvent and is being administered in Chancery, parochial and other local rates are, equally with wages and salaries, payable in priority to all other debts. Re Heyicood, 67 L. J. Ch. 25; (1897) 2 Ch. 593. Damages recovered by the personal representative under 3 & 4 Wm. 4, c. 42, s. 2, for injury done by the deceased to real or personal property of another, are payable as simple contract debts. Formerly damages for dilapidations were postponed to other debts, but they are now payable by the personal representative of the late incumbent, like other debts. 34 & 35 Viet. c. 43, ss. 29, 36. The sum stated in the order made by the bishop as the cost of the repairs is a debt payable to the new incumbent out of the assets pari passu with the debts of his other creditors. Re Monk, 35 C. D. 583. The question whether legacies can be paid where there is an outstanding contingent liability will be considered hereafter, as also the question whether a personal repre- sentative can be allowed payments to legatees as against creditors of whose claims he had no notice. Post, Chap. XI. An executor de son tort may defend himself, in an action by a creditor, by showing that he has applied all the assets come to his hands in the payment of debts of equal or superior degree to those upon which the action is brought. Ante, p. 11. Of Preference by the Executor. Among creditors of equal degree the representative may pay one in preference to another. Lyttleton v. Cross, 3 B. & C. 322. He may even after action brought confess judgment L.R. I PAYMENT OF DEBTS. in favour of another creditor of equal degree, or may voluntarily pay any creditor in full, though he had notice of the action. Re Raddiffe, 1 C. D. 733. He may pay statute-barred debts though the estate is insufficient. But the residuary legatee, being co-defendant, may insist on the statute being pleaded. Re Wenham, (1892) 3 Ch. 59. But he cannot prefer one creditor against another of a higher degree (Re Hankey, (1899) 1 Ch. 541) ; and his right of preference is not affected by 32 & 33 Viet. c. 46. But his election may be controlled. Thus, if one of several creditors of equal degree sue and obtain judgment against the representative, such creditor must be satisfied before the rest, and the preference of the representative is precluded. But a voluntary payment before judgment is a good payment, and will be allowed. Re Raddiffe, 7 C. D. 733 ; Vibart v. Coles, 24 Q. B. D. 364. Nothing short of an administration order will prevent the executor from paying a debt. Re Barrett, 43 C. D. 70. Where a creditor sues for himself and all other creditors, no payment to any creditor made after notice of the judgment will be allowed, though the representative has a right to stand in the place of the creditor he has paid. Jones v. Jukes, 2 Ves. 518; Irby v. /., 24 Beav. 525. After judgment an executor cannot do any act which affects the relative rights of creditors. Shewen v. Vander- horst, 2 R. & M. 75. So he cannot give an acknowledgment to take a debt out of the Statute of Limitations. Phillips v. Beal (No. 2), 32 Beav. 26. Nor pay a debt judicially declared to be barred by statute. Midgley v. M., (1893) 3 Ch. 282. RETAINER. 115 Retainer. An executor or administrator has a right to retain for Against his own debt due to him from the deceased in preference to all other creditors of equal degree. And he may retain against creditors of a higher degree where he has no notice of the existence of such higher creditors. Re Fludyer, (1898) 2 Ch. 562. This right is not affected by 32 & 33 Viet. c. 46 (Croicder v. Stewart, 16 C. D. 368), nor by sect. 10 of the Jud. Act, 1875. Re May, 45 C. D. 499. But there is no retainer in bankruptcy. Therefore the right will cease from the time of his receiving notice of the petition. Re Baker, 44 C. D. 262, 271 ; but see Re Rhoades, <1899) 1 Q. B. 905. An executor, therefore, who is only a simple contract creditor cannot retain against a specialty creditor. Wilson v. Coxwell, 23 C. D. 764 ; Re Jones, 31 C. D. 440 ; Re HanTtey, (1899) 1 Ch. 541. An executor's right of retainer is limited to so much of Against what the assets as come under his control or is paid into Court a during his lifetime. Re Compton, 30 C. D. 15 ; Re Gilbert, (1898) 1 Q. B. 282. But if the debt due to the executor largely exceeds the assets in hand, he is not bound to realise before exercising his right of retainer, but may retain such assets in specie in satisfaction of his debt. Re Gilbert, supra. If an executor asserts in his lifetime a right of retainer, but dies without having exercised it, his representatives may exercise the right for the benefit of his estate, but only as to anything which came into the actual possession or under the actual control of their testator, or which was paid into Court during his lifetime. Re Compton, 30 C. D. 15; Re Jones, 31 C. D. 440; and see post, 118. An executor may retain at any time before distribution, Time for. unless perhaps there has been concealment or improper con- duct on his part. Staltlschmidt \. Lett, 1 Sm. & G. 415, 420. j '2 116 PAYMENT OF DEBTS. The right to retainer exists notwithstanding judgment for administration in a suit by other creditors, and notwithstanding the assets came to his hands after the judgment, and notwithstanding the bond provides that the administrator shall not unduly prefer his own debt. Nimn v. Barlow, 1 Sim. & S. 588 ; Davies v. Parry, (1899) 1 Ch. 602 ; 68 L. J. Ch. 346. But he may, by submitting to an order for inquiries, be taken to have waived his right. Trevor v. Hutchins, (1896) 1 Ch. 844. But the right is not aifected by the fact that the executor sues on behalf of himself and all other creditors, and has submitted to account in the ordinary way. Campbell v. C., 16 C. D. 198. In an administration action an executor does not lose his right of retainer merely by reason of delay, if it can be explained and there are assets available. Re Giles, (1896) 1 Ch. 956. None for debt An executor who has acquired by bequest a debt from a creditor who had proved in an administration action has no- right of retainer in respect of such debt. Jones v. Evans, 2 C. D. 420. Against There is no retainer out of assets got in by a receiver. lie Jones, 31 C. D. 440. But it is otherwise where the executor hands over the assets to the receiver. Re Harrison, 32 C. D. 395 ; Re Rhoades, supra. Or pays the assets into Court. Re Giles, supra. Against costs. Where the fund in Court is insufficient, the right of retainer will prevail against the plaintiff's right to have the costs of suit satisfied, where the executor or administrator makes the payment in, or consents to the payment in- Richmond v. White, 12 C. D. 361 ; Re Langley, 68 L. J. Ch. 361; (1899) W. N. 23. Against There is no retainer out of assets that are merely equitable. Walters v. W., infra. For in equity all debts are equal ; and a court of equity RETAINER. 117 will never assist a retainer. " Unless he can show a legal right to retain, equity never gives it him : if he can show a legal right, it never takes it away from him." See Re Baker, 44 C. D. 272. Real estate is by 3 & 4 Win. 4, c. 104, made assets for Against real the payment of debts only in equity, and an executor has no right of retainer against it. Walters v. W., 18 C. D. 182. But see now 60 & 61 Viet. c. 65, s. 2 (2) ; ante, p. 79. And a trustee of an estate devised for payment of debts has no right of retainer thereout, whether he is executor or not. Bain v. Sadler, L. R. 12 Eq. 570. The right of retainer arises only where the creditor is liable to be sued at law for a debt of the same nature ; and therefore an heir or devisee, as he could not be sued at law for simple contract debts, has no right of retainer for them. Re Illidye, 27 C. D. 478. But a creditor by specialty in which the heirs were bound could sue the heir, and therefore the heir had a right of retainer. Ibid. And since the executor, as real representative, can now be sued for payment of debts, it follows that he will now have a right of retainer out of real estate. An executor or administrator may retain not only for Debt due to debts which he claims beneficially, but also for those to l which he is entitled as trustee. Sander v. Heathtield, L. R. 19 Eq. 21 ; see also Bain v. Sadler, supra. Conversely the executor or administrator may retain for debts due to another in trust for him. Cockroft v. Black, 2 P. Wins. 298 ; Franks v. Cooper, 4 Ves. 763. An administrator durante minoritate may retain for his Adminis- own debt, and also for that of the infant. Franks v. Cooper, 4 Ves. 764. So an administrator durante dementia may retain on behalf of the lunatic. Ibid. If administration be granted to a creditor, as such, and afterwards repealed, such creditor shall retain against the rightful administrator. Blackbomuali v. Davis, 1 Salk. 38. 118 PAYMENT OF DEBTS. By executor of executor. By one of several. By widow. De son tori. Under the common decree for administration against an administrator who has obtained administration as a creditor, the Master has no authority to disallow his claim to retainer, even though waived, unless there is a specific instruction to the Master to that effect. Spicer v. James, 2 M. & K. 387; Thompson v. Cooper, 1 Coll. 81.. Cf. Trevor v. Hntchins, ante, 116. An executor of a sole or surviving executor is entitled to retain either in his own right or as executor of the deceased executor, but not if he does not so survive ; and only as to assets which come under the control of the original executor, Re Compton, 30 C. D. 15 ; and see ante, p. 115. And in the same way the executor of an administrator- creditor may retain against the assets of the debtor. Weeks v. Gore, 3 P. Wms. 184. Qiuere, whether, where an executor dies, having inter- meddled, but before probate, and before any election made, his executor can retain. 3 P. Wms. 184. One of three executors, who is also one of two joint creditors, has a right of retainer in respect of his joint debt. Cron-der v. Stewart, 16 C. D. 368 ; Ee Hubback, 29 C. D. 934. One of two partners to whom a debt is due being made executor may retain ; but if he predecease the other partner the retainer is gone, and cannot be claimed by the repre- sentative of the executor. Surge v. Brutton, 2 Ha. 373 ; Talbot v. Frere, 9 C. I>. 575. If two are jointly and severally bound, and one makes the obligee his executor, he may either retain or sue the survivor. Crosse v. Cocke, 3 Keb. 116. A widow, the administratrix of her late husband, whose estate was insolvent, was allowed to retain out of assets come to her hands as administratrix the amount of a loan to him in his business out of her separate estate. Re May, 45 C. D. 499. Comp. Re Lencj, (1895) 1 Ch. 652. An executor de son tort cannot retain even for a superior debt. Ante, p. 12. RETAINER. 119 But he may under 43 Eliz. c. 8 that is, where he becomes such by gift of the assets from an administrator who has obtained the grant fraudulently. If the same person be the representative of both creditor and debtor, he may retain as representative, and it is his duty to do so. Fox v. Garrett, 28 Beav. 16 ; He Owen, 23 L. R. Ir. 328. Where two are jointly bound, one as principal and the Surety, other as surety, and the surety becomes representative of principal, he may retain. Boyd v. Brooks, 34 L. J. Ch. 605. The right of indemnity belonging to an executor who is surety for an unpaid debt of his testator creates an equit- able debt in respect of which he may retain. Re Giles, (1896) 1 Ch. 956. The executor of a surety to the Crown, who has paid the debt of his deceased principal, is entitled to the Crown's priority in the administration of the principal's estate. Re Churchill, 39 C. D. 174. As a rule the right of an executor as surety to be indemnified creates a simple contract debt only, and does not entitle him to retain against specialty creditors. Ferguson v. Gibson, L. R. 14 Eq. 379 ; but see Re Allen, infra. But a covenant to pay and indemnify the surety makes the latter a specialty creditor, and he can retain against other specialty creditors. Re Allen, (1896) 2 Ch. 345. But the executor, in order to have a right of retainer, must have paid the debt as surety wnile he has the assets in his control ; and if, when he pays the debt, there are no assets in his hands, there is no right of retainer. Re Harrison, 32 C. D. 395 ; but see Re Allen, supra; Re Giles, infra. It has, however, been held that a representative as surety is entitled to retain, though he has not paid any part of the debt, or been called upon to pay it. Re Allen, supra ; Re Giles, (1896) 1 Ch. 956. 120 PAYMENT OF DEBTS. Against co-executor. Damages. Annuity. Pauper. Statute- barred debt. Where there are co-executors or co-administrators, each being a creditor, one cannot retain to the prejudice of the other, but they must retain rateably. 11 Vin. Abr. 72. But one executor, who is a creditor, has a right to retain out of a balance due from himself and the other executor jointly. Kent v. Pickering, 2 Keen, 1. Damages which are arbitrary, such as damages founded on tort, cannot be retained. Loane v. Casey, 2 W. Black. 968. But damages for breach of pecuniary contracts, for which there is a certain standard or measure, as for breach of covenant to assign a policy, may be retained.' Re Conxion, 30 C. D. 15. An executor is not deprived of his retainer by the fact that the amount of the liability cannot be ascertained until accounts have been taken. Re Morris, L. R. 10 Ch. 68. An annuitant administratrix can only retain for arrears, and not for the estimated value of her future annuity. Be Beeman, (1896) 1 Ch. 48. The executor of a pauper can retain against the claim of guardians for maintenance. Larcr v. Bothani, (1895) 1 Q. B. 59. An executor may retain his own just debt, though barred by the Statute of Limitations. Stahlschmidt v. Lett, 1 Sm. & Gr. 415. But the Court will not order a fund to be paid out in order to enable an executor to retain such a debt. Trevor v. Hutchins, (1896) 1 Ch. 844. But he cannot retain for a debt barred by the Statute of Frauds. Field v. White, 29 C. D. 358. Set-off against Legacies. An executor or administrator may set off against a legacy or distributive share of personal estate debts presently due by the legatee or next of kin to the estate. Taylor v. T., SET-OFF. I'll 20 Eq. 155 ; Rees v. R., 60 L. T. 260; Whitev. Cordwell, 20 Eq. 644. And this is so though the debt is statute-barred. Re Akerman, (1891) 3 Ch. 212 ; but see Dingle v. Coppen, infra, The principle, however, does not apply to specific devises, nor to bequests of specific leaseholds or chattels. Ibid. But it does apply to moneys in the executor's hands representing property specifically bequeathed. Taylor v. Wade, (1894) 1 Ch. 671. The rule also applies though the legatee has assigned his legacy for value. Knapman v. Wreford, 18 C. D. 300 ; Re Jones, infra. The right also arises though the legatee has become bankrupt, where the bankruptcy occurs after the death. Cherry v. Boultliee, 4 M. & C. 442 ; Hodgson v. Fox, 9 C. D. 673 : Re Watson, (1896) 1 Ch. 925. But if the debt is proved in the bankruptcy the right of set-off is lost. Stammers v. Elliott, 3 Ch. 195 ; Re Binns, (1896) 2 Ch. 584 ; and see Re Orpen, 16 C. D. 202, where only the composition was allowed to be set off. The right is also gone where a fund has been appro- priated to meet a trust legacy. Bollard v. Marsden, 14 C. D. 374. An executor may set off against the legacy of a co-executor the amount of a devastauit committed by the latter. Sims v. Doughty, 5 Ves. 243. And an administrator may set off the costs of a probate action ordered to be paid by the next of kin. Re Jones, (1897) 2 Ch. 190. The principle that executors may set off a statute-barred debt has no application where the debtor is claiming a legal right, and not merely the testator's bounty. Dingle v. Coppen, 79 L. T. 693. 122 PAYMENT OF DEBTS. Effect of appointing creditor. Effect of appointing debtor. Extinguishment of Executor's Debt. It remains to consider how far the appointment of a creditor as executor operates as an extinguishment of his claim. The appointment alone is no extinguishment. But if the executor receives assets adequate to discharge the liability, the debt is extinguished. Lowe v. Peskell, 16 C. B. 500 ; Grampian v. Walker, infra. Therefore, if he has no assets, he may sue the heir. Wms. 1181 ; but see now 60 & 61 Viet. c. 65. The same rule applies where one of several joint debtors made the common creditor his executor (Crampton v. Walker, 31 L. R. Ir. 437) ; and also where the debtor appoints his creditor to be one of several executors, if the creditor administers. Wms. 1181, 1182. So a creditor-administrator, who has no assets, may sue an executor de son tort for the debt due to him from the intestate. Ibid. The effect in equity of appointing a debtor as executor is that the debt is considered to have been paid, and the debt is general assets for payment of debts and legacies. Berry v. Usher, 11 Yes. 90 ; Simmons v. Gutteridge, 13 Ves. 264 ; Re Price, 11 C. D. 163.. -^ The appointment of a debtor as executor is clearly not sufficient of itself to annul the debt in equity. Re Hyslop, (1894) 3 Ch. 522. But where there is some other equity besides the appoint- ment, and it can be shown that the testator intended to release the debt, it will be released, even though the executor has not proved the will. Re Applebee, (1891) 3 Ch. 422. CHAPTER XI. PAYMENT OF LEGACIES. IT is obvious that the executor must take care to clis- Executor charge all the debts of the testator before he satisfies any debts before description of legacj\ legacies. And for this purpose real as well as personal property is applicable as to persons dying after 1st January, 1898. Specifically- bequeathed property is not discharged from this liability by reason of the fact that the executor has in hand more than enough assets to pay the debts, and that the specific gifts have been made over to the specific legatees. In case of deficiency, therefore, the executor will be answerable for such legacies with interest. Davics v. Xicolson, 2 De G. & J. 693. As already stated, even voluntary bonds and covenants Voluntary must be paid in preference to legacies. Ante, p. 112. With respect to contingent debts and liabilities, a ques- Contingent tion arises whether an executor can safely pay over legacies or the residue where there is an outstanding contingent liability. The answer is, not if he has notice; otherwise he will have no answer when the claim ripens into a certain claim. Taylor v. T., L. R. 10 Eq. 477. But as against the legatees he may claim repayment of the legacies, even though he had notice of the contingent liability at the time when he distributed the estate ; but not if the liability had then ripened into a certain debt. Jervis v. Wolferstan, L. R, 18 Eq. 18; Whittalter v. Kershaw, 45 C. D. 320. 124 PAYMENT OF LEGACIES. Liability on leaseholds. Such being the law, the executor is not bound to part with the assets, where such liabilities exist, without an indemnity or impounding a sufficient part of residue for that purpose, for otherwise he would be liable to answer damages de bonis propriis without any fault of his. Where, however, the estate is administered in Court, the executor is perfectly safe ; and if he gives the Court all the information he possesses, he will be protected from all liability. Dean v. Allen, 20 Beav. 1. As regards leaseholds no indemnity is now necessary, as by Lord St. Leonards' Act (22 & 23 Viet. c. 35, s. 27), if the executor or administrator has sold the leaseholds and assigned them to a purchaser, setting apart a fund to answer any fixed sum covenanted to be laid out on the property, he may distribute the assets without making pro- vision for future breach of covenant, and will not be subject to any liability. Dodson v. Sammell, 1 Dr. & S. 575. In like manner he may avoid liability in respect of the rent and covenants contained in any conveyance on rent-charge. See sect. 28. The section does not apply to a specific bequest of lease- holds, in which case the executor will have to rely on the indemnity of the specific legatee. Dean v. Allen, 20 Beav. 1 ; Shadbolt v. Wood/all, 2 Coll. 30. Another question is whether an executor or administrator can be allowed payments to legatees or parties entitled in had no notice, distribution, as against creditors of whose claims he had no notice. Formerly it was held that mere want of notice would not excuse an executor or administrator, if he bond fide dis-> tributed the assets ; but see now Lord St. Leonards' Act, infra ; and cf. lie Fludyer, (1898) 2 Ch. 562. If, in the distribution of assets, a creditor misleads an executor, either by conduct or express authority, so as to induce him to pursue a course he would not otherwise have pursued, the creditor is precluded from complaining of an insufficiency of assets. Re Birch, 27 C. D. 622. Debts of which the executor PAYMENT OF LEGACIES. 1'25 But mere laches or non-suing for any period within the statute will not deprive a creditor of his right of requiring payment. Re Baker, 20 C. D. 230. And now by 22 & 23 Viet. c. 35, s. 29, where an executor Lord or administrator shall have given such or the like notices Act, s. 29* as would have been given by the Court of Chancery in an administration suit for creditors and others to send in their claims against the estate of the testator or intestate, such executor or administrator shall, at the expiration of the time named for sending in such claims, be at liberty to distribute the assets, having regard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of distribution ; but nothing in the Act shall prejudice the right of any creditor or claimant to follow the assets. A reasonable executor will issue advertisements as soon as possible after the death. Re Kay, (1897) 2 Ch. 518. The section is not confined to creditors, but also applies to persons claiming as next of kin. Newton v. Sherry y 1 C. P. D. 246. If proper notices are given under the Act, the represen- tative has the same protection as in an administration by the Court ; and if he continues to hold legacies as trustee he will not be liable qua executor. Cleyg v. Rowland, L. R. 3 Eq. 368 ; Hunter v. Young, 4 Ex. D. 256. \Vhat is sufficient notice depends upon the particular circumstances of each case. Re Bracken, 43 C. D. 1. But at least a month should be allowed for sending in claims. Wood v. Weight man, 13 Eq. 434 ; but see Re Bracken, supra. But an executor, with notice of a claim, is dot discharged by reason of the fact that the creditor does not come in in answer to the advertisements. Mark well's Case, 21 "W. E. 135 ; Scottish, d-c. v. Beatty, 29 L. E. Ir. 290. 126 PAYMENT OF LEGACIES. How far creditor's priority is affected by administra- tion suit. Next, it is necessary to consider how far the laches of a creditor may affect his priority over legatees where there is an administration action. Although the order directs that those who do not come in shall be excluded, yet it is usual to permit a creditor, he paying the costs, to prove his debt as long as there are assets undistributed, lie Metcalfe, 13 C. D. 236. If a creditor does not come in until after the assets are distributed, he can still sue the legatees and bring back the fund; but he cannot affect the legatees, except by suit; and he cannot affect the executor at all. David v. Froicd, 1 M. & K. 210. Where a creditor does not come in until some of the legatees have been paid in full, and there is left in Court a fund appropriated to other unpaid legatees, it seems that he is entitled to be paid out of such fund such a proportion only of his debt as would have been borne by the unpaid legacies if he had applied before the legacies were paid, and that he should be left to recover the residue from the paid legatees. Gillespie v. Alexander, 3 Euss. C. C. 130 ; Greig v. Somerville, 1 R. & M. 338. But this rule does not apply where the estate is not administered by the Court. Davies v. Nicolson, 2 De G. & J. 693. A creditor may come in as long as there are assets undistributed. Therefore, where a creditor omitted by mistake part of his claim, he was allowed to prove. Re Metcalfe, 13 C. D. 236. No preference. Legacy to Executor, An executor has no preference in regard to his own legacy, though given for his trouble ; and, in case of deficiency, it must abate. Duncan v. Watts, 16 Beav. 204. A legacy to an executor has, therefore, no priority. Nor has an annuity. Re Thorley, post, p. 129. LEGACY TO EXECUTOR. 127 The usual clause empowering a solicitor-executor to Profit costs, charge for work done is in effect a legacy of profit costs, and is liable to legacy duty. Re White, (1898) 1 Ch. 297, 299. Such profit costs, therefore, have no priority, and cannot be claimed as against creditors. Ibid. The presumption is that a legacy to a person appointed Presumption executor is given to him in that character, and it is for him to rebut that presumption. Re Appleton, 29 C. D. 893. Parol evidence may, it seems, be admitted to rebut the presumption. Ibid. The mere fact that the gift of the legacy precedes the appointment of the legatee as executor, or that the legacies to several persons appointed executors differ either in amount or subject-matter, is not enough to rebut the presumption. Ibid. Nor is it enough that the legacies are given nominatim and not to them expressly as executors. Reed v. Devaynes, 3 Bro. 95 ; Stackpoole v. Howell, 13 Ves. 417 ; Piggott v. Green, 6 Sim. 72. A legacy, therefore, given to an executor for his trouble An If a man perform services for the testator, without Work done reward, but in the expectation of a legacy, he cannot claim the legacy, but he may claim remuneration against the executor. Baxter v. Gray, 3 M. & Gr. 771 ; Shallcross v. Wright, 12 Beav. 558. If a garnishee order is made against the executors of a debtor of the judgment debtor, it ought to appear on the face of it that they are sought to be charged as executors. Stevens v. Philips, 10 Ch. 417. CHAPTER XV. LIABILITY OF REPRESENTATIVES ON THEIR OWN ACTS. Executors IN many cases the executor may be sued, as executor, on his owii a promise made by him as executor, and the judgment contracts. w jn b e j e i on i s testatoris. Ashly v. A., 1 B. & C. 444 ; Powell v. Graham, 1 Taunt. 580. But where the defendant as executor was indebted to the plaintiff for money lent to him as executor, and the defen- dant as executor promised to pay, the judgment must be de bonis propriis. Rose v. Bolder, 1 H. Black. 108 ; Farhatt v. F., L. R, 7 Ch. 123. Again, a promise by the defendant as executor for use and occupation after the death of the testator has been held to charge the defendant personally. Wif/ley v. Askton, 3 B. & A. 101 ; but see Atkins v. Humphrey, 2 C. B. 654. So where the defendant as executor was indebted to the plaintiff for goods sold and delivered to the defendant as executor, and defendant as executor promised to pay. Corner v. Shew, 3 M. & W. 350. And so the common count for interest was held to charge the executor personally, for it alleged a forbearance at his request. But a count charging him as executor on a con- tract by the testator to pay interest charged him only as executor. Bignell v. Harpur, 4 Exch. 773. In actions like the above, brought against the executor as such, a promise by him was a mere nudum factum unless there were assets ; though it was not necessary to aver that the defendant had assets. Powell v. Graham, 7 Taunt. 580. ON CONTRACT. 171 A promise by an executor or administrator to pay a debt Personal of the testator or to answer damages will not make him a * gx^^r personally liable, unless there be a sufficient consideration on hi ow n to support the promise. He is chargeable only as executor, and to the extent of the assets. Reeclt v. Kenneyal, 1 Yes. Sen. 126. And the Statute of Frauds adds a further requisite that the promise should be in writing. 29 Car. 2, c. 3, s. 4. A verbal promise by an administrator, before adminis- tration, may, however, under certain circumstances, be binding upon him afterwards. Tomlinann v. Gill, Ambl. 330; Gregory v. Williams, 3 Meriv. 590; and see Nelson v. Serif, 4 M. & W. 795. What is a valid consideration : If a creditor, at the request of an executor, forbears to VVhat is a sue him, that is a sufficient consideration to charge him consideration, personally, whether he has assets or not, at the time of the promise. Wms. 1668. An executor, promising to pay a debt at a future day, - makes the debt his own (Child n v. Monins, 2 B. & B. 460) ; and a promise to pay interest implies payment at a future day. Bradley v. Heath, 3 Sim. 543. Where a bill is indorsed to a person as executor, and he again indorses it, he becomes personally liable, unless he indorses it in such terms as to negative personal responsibility. 45 & 46 Viet. c. 61, ss. 31 (5), 16 (1), 26 (1). But where the plaintiff was assignee of a debt, and the defendant, in consideration that the plaintiff would accept the defendant as his debtor, promised to pay it, this was held not a sufficient consideration. Secus, if the promise had been in consideration of forbearance by such assignee to sue. 1 Saund. 210, n. 1. It would seem that having assets is a good consideration for a promise to pay a debt of the deceased, or to answer damages out of the executor's own estate, lieech \. Kcnneyal, 1 Ves. Sen. 126. 172 LIABILITY FOR THEIR OWN ACTS. What is a sufficient writing. Arbitration. Liability for acts of attorney. The consequence is, that if an executor or administrator promises in writing that, in consideration of having assets, he will pay a particular debt of the deceased, he may he sued in his individual capacity, and the judgment against him will be de bonis propriis. Wms. 1673. In cases like the above, where the nature of the debt is such as necessarily to make the defendant liable personally, the judgment will be de bonis propriis, though he be charged as promising as executor. Ibid. What is sufficient reduction into writing : The Statute of Frauds, 29 Car. 2, c. 3, s. 4, enacts that no action shall be brought unless the agreement, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged or some one by him authorised. It was at one time held that the consideration as well as the promise must be in writing ; but this is not now necessary. 19 & 20 Viet. c. 97, s. 3. Where an executor submits in broad terms to pay what- ever shall be awarded, and the arbitrator awards that he shall pay a certain sum, he is personally bound to per- form the award, whether he has assets or not. For if he thinks fit to refer generally, without protesting against the reference being taken as an admission of assets, it will amount to such an admission. Barry v. Rush, 1 T. E. 691 ; IVorthington v. Barlow, 7 T. E. 453 ; Riddell v. Sutton, 5 Bing. 200. ]}ut the liability may depend not only on the terms of the submission, but also on those of the award. Thus the award may direct payment out of assets, in which case the executor would not, it seems, be personally liable. Pearson v. Henry, 5 T. E. 6 ; Love v. Honeybourne, 4 D. & E. 814 ; Re Joseph, 1 E. & M. 486. By 45 & 46 Viet. c. 61, s. 16, an executor can indorse bills so as to limit or negative liability. Ante, p. 89. It seems that a power of attorney given by an executor will authorise the attorney to bind his principal by accepting ON CONTRACT. 173 bills for debts due from his testator. Howard v. Baillie, 2 H. Black. 618. With respect to funeral expenses, if an executor or Funeral administrator gives orders for the funeral, or ratifies the acts of another who has given such orders, he is liable individually for the reasonable expenses. Brice \. Wilson, 8A.&E. 349. Cf. lie Watson, 19 Q. B. D. 234; ante, p. 43. And it would seem that if an administrator, before taking out letters, orders, or sanctions orders, for the funeral, he will be bound after administration. Lucy v. Walrond, 3 Bing. N. C. 841. It appears that the executor is liable to pay funeral expenses, even without an order on his part, if he has assets. Even if he never receives assets to the amount of the funeral expenses, he is liable to pay, although he did not order the funeral. Per Jessel, Sharp v. Lush, 10 C. D. 472. Where the representative has neither given nor adopted directions for the funeral, he is liable upon an implied promise, at least where no other person is liable upon an I'.rpi-t'sis contract. Brice v. Wilson, 8 A. & E. 349, n. (f). There seems, however, to be some doubt whether the representative is personally liable on the implied promise. Corner v. Shew, 3 M. W. 356 ; but see Sharp v. Lush, supra. It would seem from lica. v. Price, 12 Q. B. D. 247, that cremation is legal, and, therefore, the representative would be entitled to, and liable for, the expenses in the same manner as burial expenses. See Williams \. W., 20 C. D. 659; ante, p. 104. With respect to the liability of representatives carrying Trade-. on business, the general principle is that a trade is not transmissible, but is put an end to by the death of the trader. Executors, therefore, have no authority in law to carry on the trade of their testator, and if they do so, except under the Court, they run great risk, even though directed by the will to do so. 174 LIABILITY FOR THEIR OWN ACTS. If the business prospers, the profits go to the estate, and the executor derives no benefit. If it loses, he will, on failure of assets, be personally responsible for the debts contracted in the business since the testator's death to the extent of his own property, also in his person, and he may be proceeded against as a bankrupt, though only a trustee. Exparte Garland, 10 Ves. 110 ; He Johnson, 15 C. D. 548. But if the executor has wronged the estate, if he has put the assets in his own pocket, the creditors cannot stand in his place. Ibid. ; post, p. 216. A direction to carry on trade does not authorise the employment of more property than was employed in it at the death. To justify executors in employing more, there must be the most positive and distinct authority for that purpose in the will itself. Kirkman v. Booth, 11 Beav. 280; Land v. Land, 43 L. J. Ch. 311. If it is impossible to carry on a trade with only the assets engaged in it at the death, the executors should apply to the Court for directions. Under the bankruptcy of an executor directed to carry on trade with a limited sum, the general assets beyond that sum are not liable. Ex parte Garland, supra ; Cutbush v. C., 1 Beav. 184. If a testator's business is properly carried on by his executors, in accordance with the will and with the assent of creditors, in the interest of creditors and beneficiaries, the executors are entitled (in priority to testator's creditors) to be indemnified out of the estate against liabilities properly incurred in carrying on the business. Dowse v. Gorton, (1891) A. C. 190 ; lie Brooke, (1894) 2 Ch. 600 ; Kidd v. K., (1894) W. N. 73. An executor cannot, without special authority, carry on the trade except for the purpose of winding it up ; but he may, and in some cases must, complete the contracts of his testator, and continue a going concern for the purpose of selling to the best advantage. Collinson v. Lister, 20 Beav. 356, 365 ; Gairett v. Noble, 6 Sim. 504 ; post, p. 201. ON CONTRACT. 175 If an executor, without any authority, trades with the assets, the testator's estate will not be liable in case of his bankruptcy, but the estate can prove for such assets as have been lost by the executor in the trade. Ex parte Garland, 10 Ves. 110. Again, the testator may qualify the power of the executor to carry on trade, and limit it to a specific part of the assets, in which case the rest of the assets will not be liable. Supra. Where the executrix and sole residuary legatee continued the business ostensibly as her own, the assets of the business in her hands were held not to be impressed with any trust in favour of the testator's creditors, lie Fells, 4 C. D. 509. A distinction must, however, be taken between executors actively trading arid executors merely sharing profits of a trade. Holme v. Hammond, L. R. 7 Ex. 218 ; Partnership Act, 1890, s. 2 (3). The tendency of the decisions is to establish the doctrine that no person who does not hold himself out as a partner is liable to third persons for the acts of persons whose profit he shares, unless he or they are really partners inter se. Lindley, 57. Deuastocit. It remains to consider what violation or neglect of duty will make the representative personally liable. But it must be remembered that he may obtain relief in a proper case under the Judicial Trustees Act, 1896, s. 3. Post, p. 182. This misconduct is called in law a di-nmt'ii-it, or wasting of assets, for which executors or administrators shall answer out of their own pockets, as far as they had, or might have had, assets. Bac. Abr. Exors. 1. An executor is personally liable in equity for all breaches Executor of the ordinary trusts which in courts of equity are i^achof trust. 176 LIABILITY FOR THEIR OWN ACTS. Abuse of assets. Mai-adminis- tration. Paying delt of inferior degree. considered to arise from his office. EC Marsden, 26 C. D. 783. If he accepts the office, he accepts the duties of the office, and in that sense becomes a trustee, and the circum- stance of taking probate is in itself an acceptance of the trust. Therefore an executor who proves the will must do all which he is directed to do as executor, and cannot say that, though executor, he is not clothed with a trust. Re Marsden, supra; and see ante, p. 17. Executors and administrators may be guilty of a devas- tavit, not only by a direct abuse of the assets, as by spending or converting them to their own use, but also by such negligence and wrong administration as will disappoint the claimants to them. An example of direct abuse is the application of the assets in payment of the executor's own debt to a third party, or where the executor collusively sells them at an undervalue. Went. 302. Instances of mal-administration are the misapplication of assets in undue expenses, or the payment of debts out of their legal order, or the assent to or payment of a legacy when the fund is not sufficient for creditors. Ante, 124. But it is not a devastavit to pay. a debt of an inferior degree before one of higher, of which the executor had no notice. Ante, pp. 105, 124. But want of notice did not excuse the executor if the assets were originally sufficient, although he bond fide paid the assets to the legatees or parties entitled. Hill v. Gomme, 1 Beav. 540. But see now 22 & 23 Viet. c. 35, s. 29; ante, p. 125. If the executor surrenders, or otherwise fails to preserve a term of years where the land is of greater yearly value than the rent, it is a derastarit. And, on the other hand, if the rent be greater, and the testator was assignee of the term, the executor may be guilty of a devastavit in not exonerating the estate by surrendering or assigning it. Ante, p. 164. DUVASTAVIT. 177 Formerly an executor compounding or releasing a debt was answerable for the same. But now by the Trustee Act, 1893, s. 21, an executor or Corn- administrator may pay or allow any debt or claim on any F evidence that he thinks sufficient. Ante, p. 90. And may, if he thinks fit, accept any composition or security, and may allow time for payment, and may com- promise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing relating to the estate, without being liable for any loss occasioned by anything so done by him in good faith. This applies only where there is no contrary intention ; but it applies to all executorships and administratorships whether constituted before or after the Act. Sect. 21 (4). An executor will be guilty of a devastavit if he applies Unnece.-ury the assets in payment of a claim which he is not bound to " pay. Shallcross v. Wriyht, 29 Beav. 576. So if he pays a bond ex turpi causa. Ante, p. 112. Or if he makes disbursements for the maintenance of the children of the deceased. A)ite, p. 140. But he will be allowed a reasonable time for breaking up the testator's domestic establishment. Field v. Peckett, 29 Beav. 576. An executor may also pay a debt due from his testator though barred by the Statute of Limitations, and not- withstanding the personal estate is insufficient (Loicis v. Ilumttey, 4 Eq. 451 ; Re Roicnson, 29 C. D. 358); but quaere whether he can do so against the declared wish of his co-executor. Midgley v. M., (1893) 3 Ch. 282. But he may not pay a debt barred by the Statute of Frauds. Re Roicnson, supra. He is not compellable to plead the Statute of Limitations ; though any person interested may do so after judgment. Shetven v. Vanderhorst, 2 R. & M. 75 ; Phillip* v. Beat, 32 Beav. 26; Re Barrett, 43 C. D. 70; Re Wcnham, (1892) 3 Ch. 59. The Court will not interfere with an executor before L.R. N 178 LIABILITY FOR THEIR OWN ACTS. judgment, except to prevent waste. Re Wells, 45 C. .D. 569 ; Bethell v. Abraham, L. R. 17 Eq. 24 ; and see Berry v. Gibbons, 8 Ch. 747. Negligence. Such acts of negligence or careless administration as defeat the rights of creditors, or legatees, or parties entitled in distribution, amount to a devastavit. Generally speaking, if an executor omit to sell property when it ought to be sold, and it be afterwards lost without any fault of his, he is liable. Phillips v. P., 2 Freem. 11 ; Taylor v. Tabrum, 7 Sim. 28 ; Fry v. Fry, 27 B. 144. There is, however, no rule that even with regard to risky securities there is an absolute unvarying obligation on executors to call them in within twelve months, regardless of the opinion of the executors as to the advisability of doing so. Re Chapman, (1896) 763, 782. It is not the duty of executors to realise mortgages created by the testator, when the realisation is not required for any testamentary purpose, and when the securities themselves are not in any peril. Ibid. 778. Executors will, however, be liable if they delay the payment of debts payable with interest. Seaman v. Everard, 2 Lev. 40; Dornford v. D., 12 Ves. 130, n. Or if they omit to sue for a debt, whereby it becomes barred or lost. Caney v. Bond, 6 Beav. 486 ; Grove v. Price, 26 Beav. 103 ; Billing v. Broaden, 38 C. D. 546 ; and see Collins v. modes, 20 C. D. 230. Or if they suffer rent to be in arrear. Tebbs v. Carpenter, 1 Madd. 296. The liability is the same whether the loss arises from omitting to call in a debt, or allowing a balance to remain" in the hands of a co-executor. Styles v. Guy, 1 Mac. & G. 422. But an executor need not take steps to enforce payment, if such steps would be fruitless. Re Broaden, 38 C. D. 546. And if he is satisfied on reasonable grounds that he could not maintain an action, he will not be guilty of default, and will be excused, lie Roberts, 76 L. T. 479. DEVASTAVIT. 179 Executors are liable for allowing assets to remain on improper investment, as for instance, upon personal security. Bidlock v. Wheatley, 1 Coll. 131 ; but see Ee Laing, (1899) 1 Ch. 132. So they are liable for not converting shares within the year (Grayburn v. Clarkson, L. R. 3 Ch. 605); unless they have power to postpone. Brindley v. Partridge, 13 C. D. 654. If the representatives refuse to take the necessary steps to get in the estate, the proper course is to apply for leave to take proceedings in their names. Walker v. W., 20 W. R. 162. Where executors, having refused an offer, afterwards sold for a considerably smaller sum, they were charged with the loss. Taylor v. Tabrum, 6 Sim. 281 ; Fry v. F., 27 Beav. 144. But where executors act bond fide and no neglect is proved, they will not usually be held liable. Rowley v. Adams, 2 H. L. C. 725 ; Button v. B., 1 M. & Cr. 80 ; Hughes v. Empson, 22 Beav. 181 ; Powell v. Evans, 5 Ves. 843 ; Marsden v. Kent, 5 C. D. 598. Re Chapman, supra. Where assets come to the hands of the executor, and are Loss of assets, afterwards lost to the estate, he is in the position of a gratuitous bailee and cannot be charged without wilful default. Job v. ,/., 6 C. D. 562. Thus if assets are stolen or lost by casualty, as by fire, Loss by the executor will not be charged. Bailey v. Gould, 4 c Y. & Coll. 221 ; Jones v. Letccs, 2 Ves. Sen. 240. It seems that executors are not bound either to insure or continue the insurance of their testator, though they may do so under the Trustee Act, 1893, s. 18. Ante, p. 166. But they will be liable if they allow a policy of life insurance to drop without any sufficient reason, even after a decree for administration has been made. Garner v. Moore, 3 Drew. 277. Where an executor or administrator improperly advances N2 180 LIABILITY FOR THEIR OWN ACTS. Loss by loans on personal security. Keeping money in hand. Not converting property given for life. money on a mortgage which would at the time of the investment be a proper investment for a smaller sum, the security will be deemed an authorised investment for such smaller sum, and the representative will only be liable to make good the sum advanced in excess thereof with interest. Trustee Act, 1893, s. 9 ; Ee Walker, 59 L. J. Ch. 386. And see sect. 8 as to what should be done before investing on mortgage. An executor cannot, after an order for administration, invest on mortgage or otherwise deal with the assets except by leave of the Court. Widdoirson \. Duck, 2 Meriv. 494, 499 ; but see Berry v. Gibbons, 8 Ch. 747 ; Re Hansel, 33 W. K. 727. A representative lending money of the deceased on personal security is guilty of a breach of trust and personally liable for any loss. But see Forbes v. Ross, 2 Cox, 116 ; Re Laing, (1899) 1 Ch. 132. Even when the executors are authorised to lend on personal security, a loan from one to the other is a breach of trust. Stickney \. Sewell, 1 M. & Cr. 8 ; but see Warwick v. Richardson, 10 M. & W. 284. An executor is not justified in unnecessarily keeping money in hand, but should invest it in authorised securities. The authorised securities are set forth in the Trustee Act, 1893, ss. 17- The power to invest in these securities is not confined to moneys awaiting investment. Hume v. Lopes, (1892) A. C. 112. Where personal property is bequeathed for life with remainder over, and not specifically, it is the duty of the executor with certain exceptions to convert it into authorised securities; and the tenant for life is entitled only upon that principle. Dimes v. Scott, 4 Russ. C. C. 195; Mackenzie v. Taylor, 7 Beav. 467; Wightu-ick v. Lord, 6 H. of L. 217. And the executor will be liable for such non-conversion DEVASTAV1T. 181 unless there was an express discretion as to investment. Baud v. Farddl, 1 D. M. & G. 628. Where executors fail to invest as authorised they are Unauthorised chargeable with the whole amount of the trust fund, together with interest. Robinson v. jR., 1 D. M. & G. 247. But they are not liable for continuing to hold an investment which has ceased to be an investment authorised by the will or by law. Trustee Act, 1894, s. 10 ; Re Medland, 41 C. D. 476. Executors ought not, without great reason, to permit money to remain upon unauthorised security longer than is absolutely necessary (Powell v. Evans, 5 Ves. 839; Bullock v. Wheatley, 1 Coll. 130) ; but where they have acted in the honest exercise of their discretion they will not be liable (Buxton v. B., 1 M. & C. 80; Marsden v. Kent, 5 C. D. 598) ; nor where they have an absolute discretion to postpone. Re Norrington, 13 C. D. 654; Gray v. Siggers, 15 C. D. 74. Where they have neglected to realise assets outstanding on an improper investment, there is no fixed period at which the loss is to be calculated. It depends on the nature of the property. Hughes v. Empson, 22 Beav. 181 ; Oral/burn v. Clarkson, L. R. 3 Ch. 606. It is not the duty of an executor to call in money invested on real security where no risk is apparent, nor to convert leaseholds unless under particular circumstances. Howe v. Dartmouth, 1 Ves. 150 ; Re Metlland, 41 C. D. 476 ; Midgley v. Crowther, (1895) 2 Ch. 56 ; Re Chapman, (1896) 2 Ch. 763. By the Laud Transfer Act, 1897, s. 3 (2), after one year from the death, a person entitled to freehold property may apply to the Court for an order on the personal representative to convey it to him. Generally speaking, if an executor appoints another to Employing receive money, and he receives it, it is the same thing a as if the executor had received it; and consequently, 182 LIABILITY FOR THEIR OWN ACTS. appointing another to receive who doei^ not repay, is. a devastavit. Wms. 1719. But this is not so where, necessarily, in the ordinary course of business, and acting with reasonable care, they employ agents. Clowjh v. Bond, 3 M. & C. 496 ; Speight v. Gaunt, 9 A. C. 1. But the agent must not be employed, nor act, outside the ordinary scope of his business. lie Brier, 26 C. D. 238 ; Fry v. Tapson, 28 C. D. 268 ; Jobson v. Palmer, (1893), 1 Ch. 71; Mara v. Browne, (1896) 1 Ch. 199; Re Turner, (1897) 1 Ch. 536. The liability of personal representatives for the acts of their agents is now considerably modified by the Trustee Act, 1893, ss. 17, '24. And by the Judicial Trustees Act, s. 3, the Court has power to relieve executors from liability where they have acted honestly and reasonably. Re Second, (&C.,pO8t,p. 183. Retaining A representative is justified in depositing money for temporary purposes in a bank of good credit, but it should be paid to a separate account. Kwinfen v. S., 29 Beav. 211 ; Ex parte Kingston, 6 Ch. 632. And he is not liable for loss in the event of failure of the bank, unless the same happens through his own wilful default. Trustee Act, 1893, s. 24. The Act, it will be seen, does not extend its indemnity to cases of wilful default, and the representative is there- fore still liable : If he allows money to lie in the bank when he ought to have invested it. Moyle v. M., 2 R. & M. 710. If he leaves it in the bank when he ought to have paid \i over to other parties. Lnnliam v. Blundell, 4 Jur. N. S. 3. If he lends money to bank on their personal security. Darke v. Marty n, 1 Beav. 525. If he keeps a larger balance at the bank than is reason- ably necessary. Astbury v. Beasley, W. N. 1869, 96. A representative may appoint a solicitor to be his agent to receive purchase money, and may appoint a solicitor or DEYA8TAVIT. 18i banker to receive policy moneys without being liable for loss, unless he allows such money to remain in their hands longer than is necessary. Trustee Act, 1893, s. 17. A derastarit by one of two executors or administrators Ih-rustarit d shall not charge the other, provided he has not intentionally c or otherwise contributed to it. Hence an executor shall not, under ordinary circum- stances, be responsible for assets come to the hands of his co-executor. But if he hands over assets to his co-executor and they are misapplied, he will be liable, unless he can show good reason for having so acted (Maepherton v. M., 1 H. L. C. 243) ; as if he acted merely as agent. JJaris v. Spurting, 1 K. & M. 66. The rule is that where, by the act of one executor, the assets come to the hands of his co-executor, the former will be liable in the same manner as if he had entrusted them to a stranger. Tnplis v. Hurrel, 19 Beav. 423. But if an executor is merely passive, he will not be liable unless he in some way contributes to enable the other to get possession, however innocently, unless he show sufficient excuse. 11 Ves. 335 ; Heicett v. Foster, 6 Beav. 259 ; but see Terrell v. Matheic, 1 Mac. & G. 433, u. (). Thus, if by agreement one is to receive one part of the assets, and another another part, each will be liable for the whole. Moses v. Leri, 3 Y. & C. 359 ; Lcicix v. Nobbs, 8 C. D. 591. Again, if executors deal with the assets on the mere representation, if false, of a co-executor, they will all be liable. 11 Ves. 252, 254. And generally where one, by want of proper inquiry and diligence, allows the other to get possession and misapply assets, he will be liable. He will be subject to the imputation of negligence, in being too remiss in not asking how he had been dealing with the assets in his hands. 11 Ves. 254 ; Mendes v. GuedeUa, 2 J. & H. 259; Re Second, d-c., 68 L. J. Ch. 196. 184 LIABILITY FOR THEIR OWN ACTS. Standing by. Indemnity elause. Liability of executor who renounces. But if one executor places assets in the hands of another in the ordinary course of business, and within the scope of his business (Chambers v. Minchin, 7 Ves. 198) ; or to enable him to administer (Hovey v. Blakrtnan, 4 Ves. 596) ; or remits money to pay debts (Joy v. Campbell, 1 Sch. & L. 341) ; or does any other act necessary in the regular course of business by which his co-executor gets sole possession, he will not be liable. Re Gasquoine, (1894) 1 Ch. 470. For he is not bound to do personally what in the regular course of business would be done through an agent. Speight v. Gaunt, 9 A. C. 1 ; Re Brier, 26 C. D. 238 ; Re BlundeU, 40 C. D. 370, 376; Re Gasquoine, supra. And where an executor may employ an agent, he may employ his co-executor as such within the ordinary scope of his business. Fry v. Tapson, 28 C. D. 268 ; Re Weall, 42 C. D. 674 ; Re Gasquoine, supra. But it is the duty of an executor to watch over and control his co-executor, and if he stands by and sees a breach of trust committed, he will be liable. Lincoln v. Wright, 4 Beav. 427 ; Styles v. Guy, I Mac. & G. 422 ; Re Second, d-c., supra. So if he allows another to retain money longer than the circumstances require, he will be liable. Lincoln v. Wright, 4 Beav. 427 ; Moyle v. M., 2 R. & M. 710 ; Trustee Act, 1893, s. 17 (3). And though he properly employs another he must still exercise his discretion in the matter. Re Weall, 42 C. D. 674. The usual indemnity clause will not exonerate him in such cases. The Trustee Act, 1893, s. 24, only expresses the law, and does not extend to cases of wilful default. Moyle v. M., supra. If an executor administer part of the assets, he will be chargeable with such as he has received, although he has renounced the executorship and paid the money to a co-executor who has proved. Doyle v. Blake, 2 Sch. & L. 231 ; Underwood \. Stevens, 1 Meriv. 712. DEVASTAVIT. 185 But an executor who has not proved is not to be considered as acting, simply because he assists a co-executor, or acts as his agent. Orr v. Newton, 2 Cox, 274 ; Stacy v. Elph, 1 M. & K. 195 ; ante, p. 15. An executor who merely joins his co-executor in an Joining in act which might have been done with equal validity by the co-executor alone, is not liable. Trustee Act, 1893, s. 24. But he must show that he joined only for the sake of conformity. Brice v. Stokes, 11 Ves. 319. Although it is true, as a general rule, that concurrence Acquiescence. in a devastacit by the parties injured by it, or acquiescence by them, will release the executors, yet the Court must inquire into all the circumstances, and ascertain whether there was really such concurrence or acquiescence as ought to relieve the executors. Walker v. Symonds, 3 Swanst. 1 ; Burrows v. Walls, 5 D. M. & G. 233, 251 ; Davies v. Hodgson, 25 Beav. 177 ; Re Baker, 20 C. D. 230 ; Dixon v. D., 9 C. D. 587 ; lie Hulkes, 33 C. D. 552. By the Trustee Act, 1893, s. 45, where an executor has committed a devastavit at the instigation of a beneficiary, the Court may impound the interest of such beneficiary by way of indemnity to the executor. A married woman executrix or administratrix is now in the position of a feme sole, and her husband will not be liable for her devastavit unless he has intermeddled. M. W. P. Act, 1882, s. 24 ; and see s. 18. And by sect. 23, her representative shall, in respect of her separate estate, have the same rights and liabilities as she would have if living. A husband taking his wife's leaseholds without adminis- tration is her representative within this section. Snrman v. Wharton, (1891) 1 Q. B. 491. As to the husband's liability, qua the representative of his wife, for her antenuptial contracts, see lie Parkin, (1892) 3 Ch. 510. 186 LIABILITY FOR THEIR OWN ACTS. Accounts. Accounts. it, is the bounden duty of representatives to keep accounts and to be constantly ready with their accounts, and also to give accurate information as to the assets. Low v. Bourerie, (1891) 3 Ch. 82; Lee v. Wilson, (1892) 1 Ch. 86 ; Ord. 55, r. 10A. But a legatee is not entitled to a copy of the accounts at the expense of the estate. Ottley v. Gilby, 8 B. 602 ; post, p. 210. An executor or administrator must account for all profits which have accrued in his own time, either spontaneously or by his own acts, out of the estate. And if he neglect to account or give explanations he may be made to pay the costs of any action instituted in consequence. Payne v. Evens, 18 Eq. 856 ; Talbot v. Marthfield, 3 Ch. 622. And so if he renders incorrect accounts. Pearcc v. lladcliffe, 29 W. R. 420. If executors carry on the trade or business of the testator the profits must be accounted for as assets. Ante, p. 174. And if the executors employ the assets in carrying on the trade for their own benefit, the legatees are entitled, at their option, either to interest at 5 per cent, on the amount of assets employed or to the profits actually made. Wedderburn v. If'., 22 Beav. 100. So where an executrix entered into a partnership with two other persons and brought in the assets as part of the capital, the other partners having notice of the trust, it was held that the executrix and the other partners were bound to make good the assets, together with all profits, or else with interest at 5 per cent. Flockton \. Punning, 8 Ch. 323 ; Vyse v. Foster, L. R. 7 H. L. 318. It is a general rule that an executor cannot be allowed, either directly or indirectly, to purchase any part of the assets, and if he does so he shall be considered a trustee, and account for the utmost extent of advantage made by him. Hall v. Hallett, 1 Cox, 134 ; De Cordova v. D., 4 A. C. 692 ; Clark v. Clark, 9 A. C. 733. ACCOUNT. 187 So if an executor compound debts or legacies, and buys them in for less than is due upon them, he shall not take any benefit. Ex partc James, 8 Ves. 346 ; Barton v. Hassard, 3 Dr. & W. 461 ; and see De Cordova \. D., supra. So where an executor of a mortgagee for a term of years purchased the equity of redemption in fee for a small sum in his own name, he was held a trustee for the estate. Fosbrook v. Balguy, 1 M. & K. 226. In short, if an executor deal with the assets in any other manner than his trust requires, he must replace any loss and account for any gain. Piety v. Stace, 4 Yes. 622 ; Crosskill v. Bower, 32 B. 86. There are two grounds on which an executor or admiuis- Interest, trator may be charged with interest : 1. That he has omitted to lay out money; 2. That he has made use of it, or committed some other misfeasance, to his own advantage. It is frequently necessary and justifiable for an executor to keep large sums in hand to answer the exigency of the testator's affairs, especially in the first year* But if he keeps money dead without any apparent reason, it becomes a breach of trust, and he will be charged with interest. But there must be a clear case of improper retention of a substantial amount. Jones v. Morrett, 2 Sim. N. S. 241, 252 ; Davenport v. Stafford, 14 Bear. 319. But an executor will not be charged with interest on money retained under a fair apprehension of his right to it. Bruere v. Pemberton, 12 Ves. 386. But he will be charged interest on sums improperly paid, or paid under a mistake as to the legal right to it. A.-G. v. Kohler, 9 H. L. C. 654; He Hulkes, 33 C. D. 552. An executor guilty of delay in accounting will not be charged interest on arrears of income unpaid. Blonff v. Johnson, L. R. 2 Ch. 225. The usual rate of interest in cases of negligence is still 188 LIABILITY FOR THEIR OWN ACTS. 4 per cent. Owen v. Richmond, (1895) W N. 29 ; Re Nicholson, Hid. 106. But under special circumstances it may be more. 1 Y. & C. 480 ; DC Cordova v. D., 4 A. C. 692. But where there has been a direct breach of trust an executor may be charged with a higher rate. But see Owen v. Richmond, supra. And it is a settled rule that if he applies money to his own use or in his trade, he will be charged at the rate of 5 per cent. L. R. 5 Ch. 241. And if employed in trade, the cestui que trusts have a right to the option of taking either interest or the profits actually made. Wedderburn v. W., 22 Beav. 100. But they must elect to take either profits for the whole period, or interest for the whole period. Vyse v. Foster, L. R. 8 Ch. 309, 384. And if an executor, being a trader, mixes assets with his own moneys, he will be charged 5 per cent. Wms. 1753. Mere misconduct, not being wilful default, is not enough to charge him with 5 per cent. A.-G. v. Afford, 4 D. M. & G. 843 ; Mayor, etc. v. Murray, 7 D. M. & G. 497 ; Re Hulkes, 33 C. D. 552. The principle on which executors have been charged with compound interest has not been clearly defined, but it may be said that a strong case of violation of duty is required. Tebbs v. Carpenter, 1 Madd. 290. It will be given when the assets have been employed in trade, or where he ought to have accumulated at compound interest. Burdick v. Garrick, L. R. 5 Ch. 233; Emmet v. E., 17 C. D. 142. A direction to the Master to take annual rests is to be considered as a direction to charge compound interest. Heighington v. Grant, 5 M. & Cr. 258. Allowances. An executor administrator is entitled to be allowed all reasonable expenses which have been incurred in the con- duct of his office, except those which arise from his own default. ACCOUNT. 189 But he shall have no allowance for personal trouble or loss of time, though he has renounced and though he has benefited the estate to the prejudice of his own affairs. Robinson v. Pett, 3 P. Wms. 249. An executor is, generally speaking, only entitled to costs out of pocket. Pollard v. Doyle, 1 D. & S. 319. An executor who is a solicitor with power to make pro- fessional charges, is only entitled to charge for services strictly professional. Harbin v. Darby, 28 Beav. 325 ; Re Chappie, 27 C. D. 584. But in special cases compen- sation may be made him by a fixed allowance. Bainbrigge v. Blair, 8 Beav. 588. But where he is authorised to make the usual profes- sional or other proper and reasonable charges, he is entitled to charges not strictly professional. Re Ames, 25 C. D. 72. But the power to charge for professional services cannot take effect against creditors. Re Barber, 31 C. D. 665. If, therefore, the estate is insolvent, it is inoperative. Re White, ante, p. 127. And is inoperative where the solicitor executor attests the will. Re Pooley, 40 C. D. 1. The rule as to out-of-pocket expenses only does not apply to the costs of an action where the solicitor acts for himself and his co-executors. In such a case he is allowed full costs, except so far as they have been increased by his being one of the parties. Cradock v. Piper, 1 Mac. & G. 664 ; Re Barber, 34 C. D. 77. This exception also applies to friendly proceedings in Chambers. Re Corsellis, 34 C. D. 675. It does not, however, apply where the solicitor executor acts for himself alone. Lyon v. Baker, 5 De G. & S. 622. Nor where he acts for himself and co-executors out of Court. Lincoln v. Windsoi-, 9 Ha. 158. Nor where he is employed as solicitor by his co-executor. Broughton v. B., 5 D. M. & G. 160. Again, an agent, who is appointed executor of his 190 LIABILITY FOR THEIR OWN ACTS. principal, is not entitled to commission after the testator's death. So a banker or surveyor, who is executor, is not entitled to the usual commission. Heighinaton v. Grant, 5 M. & Cr. 262 ; Kirkman v. Booth, 11 Beav. 273 ; Matthison v. Clarke, 3 Dr. 3. But there are cases where profits have been allowed. Willis v. Kibble, 1 Beav. 559 ; Smith v. Langford, 2 Beav. 362 ; Morison v. M., 4 M. & C. 215. In respect of assets collected in India, executors were formerly allowed the same commission here as they would have been allowed in India. Matthews v. Bagshaiv, 14 Beav. 123. And this rule extended to the collection of moneys which were in the hands of a firm in which the executor and the testator were partners. Cockerett v. Barber, 1 Sim. 23. But this is not so now. Indian Act No. II., 1874, s. 56, infra. The rule, however, still applies to assets in the West Indies. 1 Moore, P. C. 40. But no commission is payable where the remittant at the time of the remittance is in this country. Denton v. Davy, 1 Moore, P. C. 32 ; Campbell v. C., 13 Sim. 168; 2 Y. & C. 607. But now by the Indian Act II., 1874, no person shall receive commission for anything done as executor or administrator ; but this shall not prevent any executor, or other person, from having the benefit of any legacy bequeathed to him in his character of executor, or by way of commission or otherwise. Generally speaking, an executor or administrator must collect the estate himself. But he may employ an agent' where a provident owner might well employ a collector, and he will be allowed the expense so incurred. HopJdnson v. Roe, 1 Beav. 180 ; Wilkinson v. W., 2 S. & S. 237 ; Cockburn v. Raphael, 2 Sim. & S. 453. So it was held, from the nature of the accounts, that the executor was justified in employing an accountant, and the expense allowed. Henderson v. M'lver, 3 Madd. 275. ACCOUNT. 191 Again, if an executor pays a solicitor for his trouble and attendance in transacting the testator's affairs, he will be allowed such payments where they are proper and professional payments. Harbin v. Darby, 28 Beav. 325. If an executor borrows money, or advances it out of his Interest on own pocket, to pay debts which carry interest, or to satisfy "'jy!^^ j, y importunate creditors, he is entitled to be repaid in priority executor, to other creditors, with interest from the time of a balance being struck. Gordon v. Trail, 8 Price, 416 ; Lewis v. L., 13 Beav. 82. If an executor receive money to which he is not entitled, as a mortgage debt which has been paid off by the testator, he must refund, although he has paid it away to creditors. 1 P. Wins. 355 ; Pickering v. Stamford, 2 Ves. 583. Just allowances are now made in any account directed by any judgment or order, without any direction for that purpose. Ord. 33, r. 8. The Court may, at any stage of the proceedings, direct accounts to be taken. Ord. 33, r. 2. An order on the footing of wilful default cannot be Wilful made unless pleaded. But if pleaded, it can be made at the hearing, or at any subsequent stage. Barber v. Mnckrdl, 12 C. D. 538 ; Mayer v. Murray, 8 C. D. 424 ; Re Symons, 21 C. D. 757. But by leave of the Court fresh proceedings may be taken, charging wilful default, when none has been pleaded. Laming v. Gee, 10 C. D. 715 ; and see Doicse v. Gorton, (1891) A. C. 190, 204 ; iwst, p. 210. CHAPTER XVI. REMEDIES FOR REPRESENTATIVES. Actions by. WHEKE there are several executors or administrators they must all join in bringing actions. Where, however, an executor renounces, he need not be made a party, nor need an absconding executor. Drage v. Hartopp, 28 C. D. 414. No cause or matter, however, will now be defeated by reason of the misjoinder or nonjoinder of parties (Ord. 16, r. 11) ; and where one of the executors is not a party he may be added as plaintiff or made a defendant. Werderman v. Societc, dec., 19 C- D. 246 ; Van G elder v. Sowerby Bridge, 44 C. D. 374 ; Fairclough v. Marshall, 4 Ex. D. 37. If one of several executors sell goods, he alone may maintain an action for the price ; and generally, if one contracts alone on his own account," he must sue alone, notwithstanding the money recovered will be assets. Ante, pp. 49, 92. If a person sues or is sued in a representative capacity, the indorsement of claim must show in what capacity he sues or is sued. Ord. 3, r. 4. Executors and administrators may sue and be sued as representing the estate without joining the persons bene- ficially interested ; but the. Court may at any stage order such persons to be joined. Ord. 16, r. 8. Claims by or against an executor or administrator, as such, may be joined with claims by or against him per- sonally, provided the latter claims have reference to the estate. Ord. 18, r. 5. REMEDIES FOR. 193 Where the cause of action accrues iu the lifetime of the deceased, the action must be brought by the executor or administrator in his representative capacity. But where after his death, it may be brought as such or not at his option. Ante, p. 69; Abbott v. Parfitt, L. R. 6 Q. B. 846; Mosely v. Randell, Ibid. 338. A creditor of the testator cannot set off the debt due to Set-off, him against a debt due from him to the executor. There can be no set-off between a debt due by a testator and a debt accruing to his executor. So, where a creditor had purchased part of the assets, he could not set off the price against his debt. Lambarde \. Older, 17 Beav. 542 ; Wrout v. Daices, 25 Beav. 369 ; Hallett v. H., 13 C. D. 232 ; lie Gregson, 36 C. D. 223. An executor or administrator may set off against a legacy or share of personal estate sums owing by the legatee or next of kin, either to the testator's estate or to the executor personally. Ree*\. R., 60 L. T. 260 ; Taylor v. T., L. R. 20 Eq. 155 ; Christmas*. Jones, (1897) 2 Ch. 190. Ante, p. 121. An executor may set off against a legacy or share of residue a statute-barred debt. Courtenay r. Williams, 3 Ha. 539 ; Akerman v. A., (1891) 3 Ch. 212. And one executor may retain out of a legacy to his co-executor the amount of a devastar.it committed by the latter. Sims v. Donyhty, 5 Ves. 243. An administrator may set off against the next of kin a statute-barred debt owing to the estate. White v. Cordiccll, 20 Eq. 644. But an executor cannot set off a debt by the heir against realty descended to him (Milne 8 v. Shcncin, 33 W. R. 927) ; and it is thought that the Land Transfer Act, 1897, will not alter this rule. Again, the rule of set-off applies though the legatee has assigned his legacy for value. Knap man v. Wreford, 18 C. D. 300; Christmas v. Jones, (1897) 2 Ch. 190; see Cole v. Muddle, 10 Ha. 186 ; post, p. 217. Or has become bankrupt after the death of the testator. L.R. o 194 REMEDIES FOR. (He Hodgson, 9 C. D. 673; lie Watson, (1896) 1 Ch. 925) ; unless the executor has proved for the debt. Stammers v. Elliott, 3 Ch. 195 ; Lee v. Binns, (1896) 2 Ch. 584. But in Re Orpen, 16 C. D. 202, it was held that the executors were only allowed to set oft' the amount of the composition made before the death, whether the executors proved the debt or not. There can be no set-off against a specific legacy. Akerman v. A., (1891) 3 Ch. 212. Nor against an appropriated fund. Ballard v. Marsdcn, 14 C. D. 374. But there may be against moneys representing profits of a share of partnership specifically bequeathed. Taylor v. Wade, (1894) 1 Ch. 671. An executor does not necessarily lose his right of set-off by paying a legacy into Court. Knapman v. Wreford, 18 C. D. 300. Evidence of As to what is sufficient evidence of an executor's title, title. U a N ^at i g required is to show that the Probate Court has given authority to administer. This is usually done by the production of the probate. But from Ord. 37, r. 4, it would seem that an office copy of the record from the Probate Registry would be good evidence of the executor's or administrator's title. The title of an administrator de lonis non is sufficiently proved by the letters of administration de uonis non, with- out those granted to the first executor or administrator. 1 B. & C. 150. Where an executor or administrator produces the probate or letters of administration in proof of his representative character, and his case shows that he sues for a greater value than the stamp, he cannot recover. The title of an administrator may be proved by the letters of administration, or exemplification thereof, or by the original book of acts directing the grant, or a copy of it under Ord. 37, r. 4. REMEDIES FOR. 195 An executor or administrator is entitled to all equitable Equitable rights and interests of the deceased, and can enforce them r in the same way. The one exception to this rule, founded on the maxim actio personalis moritur cum persona, has but little appli- cation in equity ; for instance, it does not prevent the executor obtaining an injunction to prevent the continuance of injury to property. An executor can sue for obstruction to light, although his right to damages may be barred by 3 & 4 Wm. 4, c. 42. Phillips v. Horn/ray, 24 C. D. 439 ; Jones v. Simes, 43 C. D. 607; ante, p. 65. And where injury to the deceased's estate is shown, the remedy is not confined to injunction, but extends to damages also. Oaldey v. Dalton, 35 C. D. 700 ; Jenks v. Clifden, ante, p. 65. Most of the equitable rights of the deceased can be enforced by his representatives, and in the same manner. Thus an action can be brought to protect the literary property of the deceased. Thompson v. Stanhope., Ambl. 734. An executor or administrator can, before an administra- Statutes of tion order, pay or retain a statute-barred debt, or may im admit it so as to take it out of the statute, but he cannot revive it after judgment. Phillips v. P., 32 Beav. 26 ; post, p. 197. Executors or administrators of a joint debtor are not deprived of the benefit of the Statute of Limitations by reason of payments made on account of the debt by any of the surviving debtors. 19 & 20 Viet. c. 97, s. 14. Where the deceased debtor has made the surviving debtor his executor, and the latter or his firm make payments on account of the debt, such payments will, in the absence of proof to the contrary, be taken to have no reference to the executorial character. Thompson v. Waithman, 3 Dr. 628 ; Thrown v. Gordon, 16 Beav. 302. Under the Statute of Limitations, 1833, s. 6, time begins o2 196 REMEDIES FOR. to run as against an administrator claiming a chattel interest in land from the date of the death of the intestate, and not from the date of the grant of administration. Re Williams, 34 C. D. 558. An executor or administrator when sued by creditors may, though he need not, plead the Statute of Limita- tions, except in cases of breach of trust. How v. Winterton, (1896) 2 Ch. 626. They begin to run in his favour at latest when represen- tation is taken out, or he has constituted himself executor dc son tort. Boatwright v. B., 17 Eq. 71 ; Douglas v. Forrest, 4 Bing. 686. Time which has once begun to run is not stopped ; and, therefore, it is no answer that there was no executor con- stituted until after the expiration of the time. Rhodes v. Smethurst, 6 M. & W. 351 ; and see Seagram v. Knight, 2 Ch. 633 ; Manns v. Burn, 35 C. D. 266. If, however, an action is commenced within the period, and the defendant dies before service, a new action may be brought after the period against the executor within a year from the probate. Swindell v. Bidkcley, 18 Q. B. D. 250. Where an administration action was brought by an executor, who was a creditor, against a co-executor, and some time after judgment a claim was made on a pro- missory note of the testator dated more than six years before the judgment, it was held the claim was barred. lie Greaves, 18 C. D. 551. By 23 & 24 Viet. c. 38, s. 13, no proceeding shall be brought to recover share of personal estate of intestate but within twenty years after the right accrued. Re Johnson, 29 C. D. 964. But in the case of a legacy (Buxton v. Campbell, (1892) 2 Ch. 491), or share of residue (Re Davis, (1891) 3 Ch. 119), the period is twelve years only (37 & 38 Viet. c. 57, s. 8), unless there is an express trust for the legatee. Jud. Act, 1873, s. 25. REMEDIES FOR. 197 A mere constructive trust will not prevent the statute from being a bar. lie Davis, supra. A mere acknowledgment from which no promise to pay can be inferred is not sufficient to take a debt out of the statute. Therefore an acknowledgment that a debt is just, couched in terms which prevent a promise to pay from being implied, is not effectual. Briygs v. Wilson, 5 D. M. & G. 21 ; and see Bethell v. B., 34 C. D. 561. An acknowledgment by a person filling two characters, devisee and executor, will be attributed to both, but not if he represent two distinct persons. Fordham v. Wallis, 10 Ha. 217. An acknowledgment or promise to pay by one of several executors is sufficient to take a debt out of the statute. Re Macdonald, (1897) 2 Ch. 181 ; but see infra. An acknowledgment by one of two executors and devisees in trust of real estate against the wishes of the other cannot be treated as the valid act of the two in their capacity of trustees, and is not a good acknowledgment. Astbury v. A., (1898) 2 Ch. Ill ; ante, p. 92. The Court has power to restrain proceedings in a foreign Stay of Court against an executor or administrator by persons pro within the jurisdiction. And it will do so where proceedings are improper or vexatious. Carron, <&c. v. Maclaren, 6 H. L. C. 416 ; Henry v. Lewis, 22 C. D. 397 ; Hi/am v. Helm, 24 C. D. 531. But not on the ground of mere hardship or inconvenience. Fletcher v. Rodyers, 27 TV. R. 96. The jurisdiction may be exercised whether an adminis- tration order has been made or not. Baillic v. B., L. R. 5 Eq. 175. Nothing short of an order for administration will prevent a creditor from suing the executor. Re Barrett, 43 C. D. 70. After a decree for administration the Court of Chancery used to restrain creditors from proceeding at law against 198 REMEDIES FOR. the executors or administrators, and now the latter may in a proper case stay creditors' actions by applying to the Court in which such actions are pending. 36 & 37 Viet. c. 66, s. 24 (5) ; and see R. S. C., Ord. 55, r. 10A. But a mortgagee will not be stayed. Crowle v. Russell, 4 C. P. D. 186. Nor a foreign creditor suing abroad. Carron v. Maclaren, 5 H. L. C. 441 ; Crofton v. C., 15 C. D. 591. Nor a creditor who has obtained a charging order nisi (Holy v. Barry, 3 Ch. 452) ; or judgment in a county court. lie Womcrslcy, 29 C. D. 557. And a creditor who before decree has obtained judgment against an executor will not after decree be restrained from enforcing his judgment against a garnishee. Burton v. Roberts, 29 L. J. Ex. 484. By Ord. 49, r. 5, when an order has been made for administration, the Judge may order a transfer to himself of any cause or matter brought by or against the executors or administrators ; and see Ord. 55, r. 10A. Post, p. 220. But the action, to be within the rule, must be brought against the executor qua executor. Chapman v. Mason, 40 L. T. 678. By Ord. 55, r. 10A (b), the Court ma}% when necessary to prevent proceedings by other creditors, make the usual order for administration, with a proviso that no proceedings are to be taken without leave of the Judge. An executor or administrator can in equity bring an action against another. Pcake v. Ledger, 8 Ha. 213. And one executor can sue for administration. Latch v. L., L. E. 10 Ch. 464. An executor or administrator can sue before probate or grant of administration (ante); and it appears unnecessary to allege the grant in pleading. Re Masonic, ost, p. 216. An executor who carries on the business can sue as executor for debts incurred to the estate in carrying on the trade since the testator's death. Abbott v. Parfitt, L. E. 6 Q. B. 346. For further information on this subject, see post, p. 215. Payment into By the Trustee Act, 1893, s. 42 (10 & 11 Viet. c. 96), all executors and administrators may pay or transfer money or securities into Court. And see Wolst. 232. Where money was paid in under the Trustee Eelief Act by the administrator of a supposed intestate, and afterwards, a will being discovered, the administration was revoked and probate granted, the Court ordered payment out to the executor. EC Hood, (1896) 1 Ch. 270. The proper course now, however, is not to pay funds into Court, but to take out a summons under Ord. 55. Re Giles, 34 W. R. 712. REMEDIES FOR. 203 Under 22 & 23 Viet. c. 35, s. 29, already referred to, Lord executors and administrators may distribute the assets ^ ct ' after due notice to creditors and others to send in their claims. Ante, p. 125. The section applies to claims of next of kin as well as creditors. Newton v. Sherry, I C. P. D. 246. But it does not protect executors against claims of which they have notice. He Land Credit, (1872) \V. N. 210 ; Wood v. Wood, 21 \V. R. 135. It protects them whether they have paid over the legacies or only appropriated them. Cliff v. Rowland, L. R. 3 Eq. 368; Hunter v. Young, 4 Ex. D. 256. The procedure by originating summons under Ord. 55 is Advice and so much cheaper than the procedure for the direction of ( the Court under Lord St. Leonards' Act, that the latter has been practically rendered obsolete. The opinion and direction of the Court can still be Special case, obtained by special case under Ord. 34, r. 8. CHAPTER XVII. Foreign executors. Actions against. REMEDIES AGAINST REPRESENTATIVES. No suit can be brought against any executor or adminis- trator in his official capacity in the Court of any country but that from which he derives his authority to act by virtue of the probate or administration .there granted to him. Story, Confl. s. 513. Therefore a foreign creditor cannot sue in respect of English assets until an English representative is con- stituted ; for a foreign representative cannot be sued here in his official capacity. Tyler v. Bell, 2 M. & C. 89, 100 ; Maclean \. Dan:son, 27 Beav. 21 ; Flood v. Patterson, 29 Beav. 295. But if he intermeddle, without taking out administration, he would become liable as executor de son tort to the extent of assets so received by him. Ante, p. 9. And if the estate is to be administered, the presence of an executor dc son tort before the Court will not dispense with that of a regular representative. He is only treated as executor for the purpose of being charged. Penny v. Watts, 2 Phill. C. C. 152. A creditor of a testator cannot sue the executor, unless the latter has either administered or obtained a grant of probate ; and a sale in execution of a judgment in such an action does not bind the testator's estate. Mohamidu v. Pitcliey, (1894) A. C. 437 ; Re Leasl;, (1891) W. N. 159 ; ante, p. 192. Although no action at law is against an executor for a general legacy, it is otherwise as regards a specific legacy REMEDIES AGAINST. 205 after the executor has assented. Doev. Guy, 3 East, 120; Williams v. Lee, 8 Atk. 228. Executors are also liable to he sued at law where they have ceased to hold the money as executors, or they may he treated as trustees of the fund. Re Smith, ante, p. 140. An executor or administrator is liable, as representative, to all equitable demands with regard to property which existed against the deceased at the time of his death. Toller, 479. Again, executors and administrators are, for most purposes, considered in equity as trustees, and are personally liable for all breaches of the ordinary trusts of their office. Re Marsden, infra. They are bound by a direct trust to deal properly with the assets and to apply them in due course of administration. Re Marsdcn, 26 C. D. 783, 790. A single creditor may sue for his demand out of the assets, and may, as at law, by the judgment gain a preference over other creditors in the same degree. Alexander v. Mailing, 2 R. & M. 568. But a person entitled to a share of a sum of money which is due as a debt from the testator must sue . on behalf of himself and all other parties interested in the debt, or make those other persons parties to the suit. Alexander v. Mullins, 2 R. & M. 568. Although an executor has a year allowed him to pay legacies, he is liable to be sued for debts the moment after the testator's death. Xicholls v. Judson, 2 Atk. 301 ; but see Mohamidu v. Pitchey, supra. A debtor to the estate cannot obtain a stay of proceedings brought against him by the personal representative to recover the debt, on the ground that such representative intends to misapply the money when received. Dartlier v. Winter, 2 S. & S. 536 ; but see ante, p. 87. The general rule is, that if there are several executors or Parties, administrators they must all be sued. Latch v. Z/., L. R. 10 Ch. 464. 206 EEMEDIES AGAINST. Where there is no repre- sentative. Receiver. But it is only necessary to sue such executors as have proved the will or have acted, lie Lovctt, 3 C. D. 198. Although one of two executors may sue the other without making the persons entitled parties, yet where the latter have participated in the breach of trust they are necessary parties. Jesse v. Bennett, 6 D. M. & G. 609. If during an action a defendant dies, the action can be continued against his personal representative, whether he died before or after decree. Orel 17. By Ord. 16, r. 46, where any deceased person who was interested in the matter in question has no personal repre- sentative, the Court may appoint some person to represent his estate, or proceed in the absence of any such person. This, it seems, does not apply (1) where the estate of the deceased person is that which is being administered in the suit; (2) where the interest of the deceased person is adverse to that of the plaintiff ; (3) where the repre- sentative has active duties to perform. Moore v. Morris, L. R. 13 Eq. 140 ; Groves v. Levi, 9 Ha. App. 47. Where a sole plaintiff died insolvent, the Court appointed a person to represent his estate, so as to enable the defen- dant to move to dismiss the action for want of prosecution. Wingrore v. Thompson, 11 C. D. 419. In an action by an equitable mortgagee of a policy of insurance against the company, the Court dispensed with a personal representative of the assured, the next of kin declining to take out administration. Curtius v. Caledonian, d-c., 19 C. D. 534. The Court will before probate or administration interfere on behalf of a creditor or beneficiary to protect the estate by the appointment of a receiver or manager, or both. Steer v. S., 2 D. & S. 311 ; Nortkard v. Proctor, 1 C. D. 4 ; Blackett v. B., 24 L. T. 276. An application for a receiver pending probate should not be made to the Chancery Division except under special circumstances, as, for instance, danger to assets. He Henderson, 2 Times Eep. 322. REMEDIES AGAINST. 207 The fact that an executor declines to admit assets, and that consequently, if a receiver be not appointed, the executor may prefer one creditor to another, is not sufficient. Phillips v. Jones, 28 Sol. Jo. 360. In other cases the proper Court to appoint a receiver is the Probate Court. Re Henderson, supra. The addition of a claim for administration of the estate to a claim for its protection until the appointment of a representative was held to be irregular. Ocerinnton v. Ward, 34 Beav. 175 ; Raidings v. Lambert, 1J. & H. 458. If in the case of an executor or administrator any misconduct, waste, or improper disposition of the assets is shown, the Court will instantly appoint a receiver. 12 Ves. 5 ; Richards v. Perkins, 3 Y. & C. 299. So the bankruptcy of a sole executor and trustee is a ground for such an appointment. Re Johnson, L. R. 1 Ch. 325. But the Court will not appoint a receiver because the executor may, and probably will, exercise his right of retainer to the prejudice of creditors. Re Wells, 45 C. D. 569. And the administration is not to be taken from the executor on slight grounds, such as mere poverty. Hathornthicaite v. Russell, 2 Atk. 126 ; Dan. 1669. The Trustee Act does not authorise the appointment of Removal of a trustee to discharge the duties of an executor. The c executor has certain duties to perform which cannot be taken from him ; but when the estate is cleared the Court will appoint trustees. Eaton v. Dailies, (1894) W. N. 32 ; Rud. & G. 87, 89. But under the Judicial Trustees Act, 1896, the Court has power to remove an executor and appoint a judicial trustee in his place. Re Ratcliff, (1898) 2 Ch. 352. The Court has no jurisdiction to order in a summary Executor <.f way the executor of a deceased receiver to pass his accounts. r If the balance is ascertained, the recognizances may be put in suit : otherwise an action must be brought against 208 REMEDIES AGAINST. Order for payment into Court on admission of assets. the executor, unless he consents to an order to pass the receiver's accounts. Dan. 1709. Except in the case of a creditor suing for his own debt, only so much of the estate as the executor or administrator admits to be in his hands will be ordered to be brought into Court, whether he has abused his trust or not, and without proof that the fund is in danger. Strange v. Harris, 3 Bro. C. C. 365 ; Blake v. B., 2 S. & L. 26 ; Dan. 1734. The rule is not limited to cases where there are no debts and there is no purpose for which the money is to be left outstanding, but applies where there are demands upon it to which the representative is liable. Dan. 1734 ; Yare v. Harrison, 2 Cox, 377. Where an executor admits a sum of money to be due from him, in his individual character, to his testator, the amount will be ordered to be paid into Court. Rothivell v. It., 2 S. & S. 218; Costekcr v. Horrox, 3 Y. & C. 530. And this has been done though the debts of the testator were not all paid. Morihck v. Lcathes, 2 Mer. 491. The Court in making an order adheres strictly to the rule of acting on the executor's admission only, and will refuse to proceed upon knowledge derived from any other source, Richardson v. Bank of England, 4 M. & C. 174 ; Scott v. Wheeler, 12 Beav. 366. Money admitted by an executor to be in the hands of his partner will be considered as in his own hands for the purpose of being ordered into Court. Johnston v. Aston, 1 Sim. & S. 73 ; White v. Barton, 18 Beav. 192. Comp'. Freeman v. Fairlic, 3 Mer. 39. Where an executor admits assets, he may discharge himself from payment into Court, wholly or partially, by taking credit for sums he has a right to retain or to be allowed. Roy v. Gibbon, 4 Ha. 65 ; Nokes v. Seppings, 2 Phill. 19. And where he has made payments, the amount of which REMEDIES AGAINST. 209 he does not specify, the Court will allow him to verify the amount and pay in the balance. 4 Sim. 359. Where there is a sufficient admission by the executor, he cannot avoid payment in by showing any unauthorised application or any investment or disposition which amounts to a breach of his duty as executor. Roy v. Giblton , 4 Ha. 65 ; Ingle v. Partridge, 32 Beav. 661. Or by setting up the adverse title of a third party. Lard v. Purchase, 17 Beav. 171. * But an order will not be made under Ord. 55 unless the money is actually in his handsi It is not sufficient that it has been in his hands and that he is responsible for it. X utter v. Holland, (1894) 3 Ch. 408. If there is no danger of the property being lost, a reasonable time will be allowed for bringing the fund into Court. Roy v. Gibbon, 4 Ha. 65 ; Score v. Ford, 1 Beav. 333. The appointment of a receiver by the Probate Court is not a sufficient reason for ordering payment in by the person named as executor. Reed v. Harris, 1 Sim. 639 ; Edwards v. E., 10 Ha., App. II. 63. An executor ordered to pay money into Court is not thereby deprived of his right of retainer. Ante, p. 116. Nor of his lien on the fund for his costs. Blenkinsop v. Foster, 3 Y. & C. 207. Applications for payment in, before judgment, are usually made by summons, which, if opposed, is frequently adjourned into Court. Dan. 1744. Under the Trustee Act, 1893, s. 35, the Court may, in a proper case, make vesting orders as to any stock or chose in action against any executor or administrator. Qucere, whether the Court can now make such orders with regard to land which has devolved upon them under the Land Transfer Act, 1897. Ante, p. 80. It is the bounden duty of an executor to keep proper Accounts. accounts, and to constantly have them ready. Ante, p. 186. If, therefore, he mixes the accounts with those of his L.R. p 210 REMEDIES AGAINST. own trading concerns, he will be bound to produce the books in which any part of those accounts may be inserted ; and so will his partner, if he has permitted the mixing of the accounts or the firm has dealt with the assets of the testator. Freeman v. Fairlie, 3 Mer. 43 ; and see Flockton v. Sunning, L. K. 8 Ch. 323, n. Executors, when required to furnish accounts, can demand to be paid or guaranteed the cost of so doing ; and it makes no difference that one of them is a solicitor. Re Bosworth, 58 L. J. Ch. 432. Under the usual administration decree an executor or administrator can only be charged for actual receipt by himself or his agent, not for a default of his co-trustee. Re Fryer, 3 K. & J. 317. Wilful The practice is to make them account for what they have received, not for what they might have received, but for their own default. Barber v. Mackrell, 12 C. D. 538. To make them account on the latter footing a special case must be made, and at least one act of wilful default must be averred and proved. Ibid. ; Re Youngs, 30 C. D. 431 ; Re Stevens, infra. An order charging wilful default can be made at any time during the action, on a proper case being shown. Job v. J., 6 C. D. 562 ; Barber v. Mackrell, 12 C. D. 534. And on taking the common accounts executors can be, and often are, charged with a devastavit arising on the accounts themselves. Re Stevens, (1898) 1 Ch. 162. But where a common administration order has been made against a defendant, the leave of the Court must be obtained in order to continue the action against him on the footing of wilful defaults. Laming v. Gee, 10 C. D. 715. Where there are no pleadings, a charge of wilful default can be raised by affidavit. Barber v. Mackrell, 12 C. D. 534. Where the plaintiff alleges wilful default, he must prove it at the hearing. Smith v. Armitage, 24 C. D. 727. REMEDIES AGAINST. '211 And he must show not only a loss, but a loss under such circumstances as to show default on the part of the executor or administrator. Re Brier, 26 C. D. 238 ; lie Stevens, (1898) 1 Ch. 162. Loss of interest from a debtor's refusal to pay his debt before probate is too remote a consequence of delay in proving the will to render the executor liable to account on the footing of wilful default. He Stevens, (1897) 1 Ch. 422 ; (1898) 1 Ch. 162. Particulars of the allegations of wilful default should be given in the pleading. Re Anstier, 54 L. J. Ch. 1104 ; see also Ord. 19, r. 6. Accounts on the footing of wilful default cannot be obtained under Ord. 15. Re Boiven, 20 C. D. 538. If the plaintiff's demand be uncontested or proved, and Executor the executor admits assets, the plaintiff is entitled at the hearing to an immediate order for payment without taking admitting assets. accounts. Woodgate v. Field, 2 Ha. 211 ; Connop v. Hayirard, 1 Y. & C. 33. The same doctrine prevails where the admission of assets is made before suit. Barnard v. Pnmfrett, 5 M. & C. 63 ; Dimsdale v. Dndding, 1 Y. & C. 265 ; lingers v. Soutteii, 2 Keen, 598. An admission of assets for the payment of a legacy is an admission of assets for the purposes of the suit, and extends to costs. Philanthropic Soc. v. Hobson, 2 M. K. 357. If there are several executors and some admit assets, an account may be decreed against the rest. Norton v. Tnrvill, 2 P. W. 145 ; and see Davies v. Ridge, post, p. 213. An admission of assets by the executor's answer is waived by the plaintiff's going on to an account of assets and procuring a receiver to be appointed. Wall v. Bushby, 1 Bro. 484. An admission of assets cannot be retracted unless a case of mistake be most clearly established. Dreirry v. Thacker, 3 Sw. 548 ; Roberts v. 7^., 1 Bro. 487 ; and see Hewes v. H., 4 Sim. 1. p2 212 REMEDIES AGAINST. But if a strong case be made out, this may enable the Court to relieve him from the admission. Foster v. F., 2 Bro. 619 ; Young v. Walter, 9 Ves. 365 ; Horsley v. Chaloner, 2 Ves. Sen. 85. The admission of assets will not preclude creditors from coming on a fund specifically appropriated for their benefit, although that fund may have been disposed of to a purchaser. Curtis v. Blow, 2 B. & Adol. 426. What With respect to what amounts to an admission of amounts to an admission, assets : Where an executor admits himself to have been a debtor to his testator at the time of his death, this is an admis- sion of assets to the amount of the debt. Rothwell v. R., 2 S. & S. 218 ; Mortlvck v. Leathes, 3 Mer. 491. Payment of interest on a legacy from time to time, as distinguished from a single payment, is an admission of assets to the amount of the legacy. Corporation, dr. v. Su'ainson, 1 Ves. Sen. 75; Att.-Gen. v. Chapman, 3 Beav. 255 ; see Severs v. S., 1 S. & G. 400 ; Whittle v. Henning, 2 Beav. 396. So is payment of legacy duty. Lazonby v. Rau'son, 4 D. M. & G. 556 ; infra. And where executors employed a legacy in their business, they were held to have admitted assets by entering the amount in the partnership books to the credit of the legatee. Townend v. T., 1 Giff. 201. Comp. Hutton. v. Rosseter, 24 L. J. Ch. 106 ; 7 D. M. & G. 9. Admission of assets to one legatee is, generally speaking, an admission to all. Cook v. Marty n, 2 Atk. 3. But this is not a hard-and-fast rule, and the Court will not subject executors to liabilities they never contemplated. More wood v. Currey, 28 W. R. 213. The payment of a legacy out of the executor's own money is not an admission for the payment of others. Cadbury v.. Smith, L. K. 9 Eq. 37 ; infra. Payment of legacies is an admission of assets for payment of debts. Freeman v. Fairlie, 3 Mer. 38. REMEDIES AGAINST. But the circumstances under which such payment was made may be material. Uncage v. Lane, 6 Ha. 88. Payment of annuities for several years is an admission of assets. Payne v. Little, 22 Beav. 69. So is payment of interest to a tenant for life. Pai/m- v. Tanner, 55 L. J. Ch. 611 ; Breirster v. Prior, 85 W. R. 251. Payment of probate duty is presumptive evidence of, but not an absolute admission of, assets to the extent covered by the duty. Lazonby v. Ratcson, 4 D. M. & G. 556. Where an executrix and residuary legatee confirmed by her own will a void bequest contained in the will of the testator, she was held to have admitted assets to that amount. Campbell v. Radnor, 1 Bro. 271. Where one of two executors, who were residuary legatees, had died, a payment by his representatives to the survivor out of the deceased executor's estate was not an admission of assets for payment of other legacies. Cadbury v. Smith, L. R. 9 Eq. 37. Judgment against an executor by confession or default is an admission of assets. Rock v. Leigkton, 1 Salk. 310. Submission to an arbitration award is not of itself an admission of assets. Pearson v. Henry, 5 T. R. 6 ; Danes v. Ridge, 3 Esp. 101 ; but see Wortliington v. Barlow, 7 T. R. 453. Where executors of a receiver, three years after their testator's death, applied to pass their accounts and pay in the balance, they were held to have admitted assets. Garden v. Badcock, 6 Beav. 159. An admission of assets is, however, always susceptible of explanation, and an executor cannot be bound by an admission made under circumstances with which lie was not acquainted. Payne v. Little, 22 Beav. 69. If executors refuse to admit assets without reason, they may be ordered to pay the costs occasioned by the refusal. Christian v. Adamson, (1869) W. N. 208. If, in an action against executors for a legacy, the 214 REMEDIES AGAINST. executors admit assets, and judgment is given for pay- ment of the legacy, a creditor may, it seems, recover the legacy if it was in fact paid out of the testator's assets. Re Broaden, 38 C. D. 546. The party injured by a devastavit is only a simple contract creditor of the executor, and the claim is conse- quently barred after the lapse of six years by the Statute of Limitations. Thome v. Ken; 2 K. & J. 54. But this does not, or did not before the Trustee Act, 1888, apply to an action by a beneficiary against the executor who had committed the devastavit, as the debt arose from a breach of trust from which the statute did not protect him. Re Marsden, 26 C. D. 783; Wolst. 190; post, p. 226. An executor cannot set up his own devastavit as a defence in order to claim the benefit of the Statute of Limitations. Re Hyatt, 38 C. D. 609. Bankrupt If an executor becomes bankrupt, having wasted the assets, a proof for the devastavit can be taken in under the bankruptcy. Geary v. Beaumont, 3 Mer. 431. An executor and trustee having committed a devastavit cannot prove under his own bankruptcy without an order of the Court. Ex parte Colman, 2 Dea. & C. 584. Generally speaking, such order vvill be made on the application of a bankrupt who is sole executor, but the dividends ought to be secured and not allowed to come into the bankrupt's hands. Ex parte Leeke, 2 Bro. 597 ; Ex parte Shan; 1 Glyn. & Jam. 127 ; Ex parte Moody, 2 Rose, 413. In the case of an executor committing a devastavit, and a decree for payment of the amount, the debt is considered as due from the time of the dccastavit, and not from the date of the decree. Wheldale v. W., 16 Yes. 376. A defaulting executor or administrator who becomes bankrupt is protected from attachment by sect. 10 of the Bankruptcy Act, 1883. Cobhani v. Dalton, L. R. 10 Ch. 655 ; Re Neil, (1882) W. N. 46. REMEDIES AGAINST. 215 And if he becomes bankrupt after he has been attached, he may be released. He is protected from arrest by the order in bankruptcy. lie Manning, 30 C. D. 480. The issue of a summons under Ord. 55 does not Discretion, interfere with any power or discretion of any executor or administrator, except so far as such interference may necessarily be involved in the particular relief sought. See r. 12. - Nor does a judgment for administration interfere with the exercise of such discretion, except so far as the exercise conflicts with the order. Ee Hall, 33 W. E. 508 ; Re Oadd, 23 C. D. 134 ; ante, p. 89. Nor does an administration decree prevent trustees from exercising a power of sale after the order on further consideration has been made. Ee Mansel, 33 W. R. 727. Nor does an administration decree prevent an executor dealing with the assets where there is no injunction or receiver appointed. Berry v. Gibbons, 8 Ch. 747. But the Court will prevent them from exercising their discretion improperly. Tempest v. Camay . 540 ; and see Re Vincent, 26 W. R. 94. Where a creditor sues on behalf of himself and all other creditors, and the estate is insufficient for payment of debts, he is entitled to costs as between solicitor and client. 7,v Rirhnrilxun, 14 C. D. 611 ; Re MeRea, 32 C. D. 613. If it appears in the title of the statement of claim that he so sues, the writ need not be amended. Eyre v. Cox, 24 W. R. 137 ; Re Tottenham, (1896) 1 Ch. 628. The rule applies equally to the case of a creditor who obtains conduct of an action originally commenced by a legatee or next of kin. Re Richardson, 14 C. 1). 611. An executor suing on behalf of himself and all other creditors can none the less retain his own debt. Ex jHtrtr ( 'amplell, 16 C. D. 198. There is nothing to prevent other creditors or legatees from bringing a second action for administration. 220 REMEDIES AGAINST. Stay of But when an order has been made in one action, applica- lgs ' tion should be made to have the proceedings in the other transferred, and to have the other action stayed. On the application to stay proceedings, the question is * whether the action sought to be stayed asks something more than could be obtained under the existing order. Re McRea, 25 C. D. 16 ; Lambaco v. CassaveUi, L. R. 11 Eq. 439. But even where the second suit goes further than the first, proceedings have been stayed on the executor or administrator undertaking not to object to any additions to the decree in the first action which the Judge may think fit to add in Chambers. Gicyer v. Peterson, 26 Beav. 83 ; Van Bunan v. Piffard, 13 W. R, 425. The usual practice, however, is to allow the action in which a decree has been made to proceed, and to stay the other. Seton, 5th ed. 705. If the decree has been unfairly obtained or the action improperly instituted, the Court will either not stay the other action or will give the conduct of the proceedings to the plaintiff in the other action. Rhodes v. Barret, L. R. 12 Eq. 479. Where the first action is stayed because a decree has been made in a later action, the conduct of the second action will usually be given to the plaintiff in the first action. Lambaco v. CassaveUi, L. R. 11 Eq. 439 ; Re Sirirc, 21 C. D. 647 ; Toicnsend v. T., 23 C. D. 100. Where an order for administration has been made, the Judge may transfer to himself any cause or matter pending in any Court brought against the executors or adminis- trators. Ord. 49, r. 5 ; ante, p. 198. This power of transfer takes the place of the old practice of restraining proceedings by injunction. The action to be transferred must be one brought against the executor qua executor. Chapman v. Mason, 40 L. T. 678 ; Re Timms, 26 W. R. 692. By the Bankruptcy Act, 1883, s. 125, sub-s. 4, where REMEDIES AGAINST. proceedings have been commenced in any Court for adminis- tration of the estate of a deceased debtor, such Court can, on proof that the estate is insolvent, transfer the proceedings to the Court of Bankruptcy. The transfer can be ordered after judgment for adminis- tration has been made. Re York, 36 C. D. 238 ; Senhonse v. Man-son, 52 L. T. 745. The exercise of this power is discretionary ; and the mere fact that the rights of the executor, as regards retainer and not pleading the Statute of Limitation, might be taken away by the transfer, is not a ground for the transfer. Re Baker, 44 C. D. 262. But see Re York, 36 C. D. 233. An estate cannot be administered in a Court of Equity in the absence of a personal representative. Loicry v. Fulton, 9 Sim. 104 ; dough v. DIJCOH, 10 Sim. 564; Doicdestcell v. D., 9 C. D. 294. And a limited administrator does not sufficiently represent the estate for this purpose. Ibid. Nor does a representative appointed under Ord. 16, r. 46. (in >res v. Lane, 16 Jur. 1061. Nor does an executor de son tort. Row sell v. Morris, L. R. 17 Eq. 20. But see Re Lovett, 3 C. D. 198 ; ante, p. 206. Nor does an administrator ad litcm. Dowdesiccll v. D., supra. Nor does an administrator of the executor. Barber v. Walker, 15 W. R. 728. But an administrator pendentc lite may be sued like a general administrator. Re Toleman, (1897) 1 Ch. 866. But though an infant executor has coine of age, the executor durante minore (etate is a necessary party, unless he has fully accounted. Glass v. Oxenham, 2 Atk. 121. Where an administrator is out of the jurisdiction, judg- ment for administration cannot be obtained against him. Donald v. Bather, 16 Beav. 26. In an action for a general account of assets, it seems that the representative of a deceased representative should 222 REMEDIES AGAINST. be joined as co-defendant with the continuing or present representative. Holland v. Prior, 1 M. & K. 237 ; Hall v. Austin, 2 Coll. 570 ; Coppard v. Allen, 2 D. J. & S. 173. But the representative of a deceased executor need not be so joined if it is not sought to charge the estate of the deceased executor, or if an account is waived. Masters v. Barnes, 2 Y. & C. 616. Where the executor or administrator is required to be a party, it is not sufficient that he is such by the appoint- ment of a foreign court, but he must obtain his right to represent the estate from the Probate Court of this country. Ante, p. 204. After the usual administration order every creditor has an interest in the suit, but until such order the plaintiff is dominus litis, and may settle the action by accepting payment of his debt and costs of action. Woodgate v. Field, 2 Ha. 213 ; Hold-en v. Kynaston, 2 Beav. 204 ; Re Greaves, 18 C. D. 551. As a general rule it is not necessary or proper to join legatees or next of kin as parties to an action against the executor or administrator for an account, though under special circumstances it maybe done. Brown v. Dowtlnvaite, 1 Madd. 446 ; Hertford v. Zichi, 9 Beav. 11. Unless there be collusion or insolvency, or some special case, debtors to the estate cannot be made parties to an action against the executor. Consett v. Bell, 1 Y. & C. 569 ; Barker v. Birch, 1 De G. & S. 376 ; Stainton v. Carron, 18 Beav. 146 ; Yeatman v. Y., 7 C. D. 210. The same rule applies to the case of a creditor overpaid by the executor. Alsager v. Rowley, 6 Ves. 748. But this rule has been relaxed in the case of surviving partners of the deceased, who may be made parties with the executor where it is shown that there exist assets which might be recovered, and which but for such a suit would probably be lost to the estate. Stainton v. Carron, 18 Beav. 146. Mere refusal by the representative to sue for the recovery REMEDIES AGAINST. of outstanding assets will not, in the absence of special circumstances, justify the suing of the debtor. Yeatman v. y., 7 C. D. 210. ' Where an executor has administered and paid over the residue, a creditor may follow the residue, and compel pay- ment by the residuary legatee of his debt to the extent of the residue, without making the executor a defendant to the action. Hunter v. Young, 4 Ex. D. 256 ; Clegg v. Rowland, L. R. 3 Eq. 368. Although the Court exonerates the executor or adminis- trator for payment of assets pursuant to its order, yet such a decree is not absolutely binding on absent persons who have had no opportunity of presenting their claims and have been guilty of no laches. David v. Frowd, 1 M. & K. 100 ; Sawyer v. Birch more, 1 Keen, 391. Although such absent persons have no remedy against the executor or administrator, yet they may assert their claim against the persons who have received the assets. The interests of persons not parties to the action may, however, be bound under Ord. 16. May v. Newton, 34 C. D. 345. Although suits in equity are not within the Statute of statutes of Limitations, yet they are within the spirit and meaning of it, and therefore, upon all legal demands, the Courts of Equity are bound to yield obedience to its provisions. Re Sharpe, (1892) 1 Ch. 154. And as Courts of Equity will not entertain stale demands, they have thought proper to adopt the limit of six years by analogy to the statute, lie Greaves, 18 C. D. 551 ; ante, p. 196. Subject to the provisions of the Trustee Act, 1888, the Statute of Limitations does not run against a trust. Woodhouse v. W., L. R. 8 Eq. 514. Accordingly a trust of real estate for payment of debts prevents the statute running against such debts as were not barred in the testator's lifetime. Burke v. Jones, 2 V. & B. 275; Hughes v. Wynne, 1 T. & R. 307; 224 REMEDIES AGAINST. Hargrcaves v. Michell, 6 Madd. 326 ; but see Harcourt v. White, 28 Bear. 309. But a mere charge is not sufficient for this purpose. Cunningham v. Foot, 3 A. C. 974. But a trust by will of personal estate does not prevent the operation of the statute. Scott v. Jones, 4 Cl. & F. 382. Where debts were directed to be paid out of real and personal estate, it was held that a trust had been created so as to prevent the operation of the statute. Crallan v. Oulton, 3 Beav. 1 ; Moore v. Petchell, 22 Beav. 172. Where executors sell real estate charged with debts, a purchaser is not bound to inquire whether any debts remain unpaid unless twenty years have elapsed from the testator's death. lie Tanqueray-Willaumc, 20 C. D. 465. But the rule does not in general apply to the case of an executor selling leaseholds, lie Whistler, 35 C. D. 561 ; lie Venn, (1894) 2 Ch. 101. By the Real Property Limitation Act, 1874, s. 8, no action or other proceeding shall be brought to recover any sum of money secured by any mortgage judgment or lien or otherwise charged upon or payable out of any land or rent at law or in equity, or any legacy, but within twelve years next after the right to receive the same has accrued, unless there has been some part payment or acknowledgment. This section applies to judgments generally. Jay v, Johnstone, (1893) 1 Q. B. 189. It applies to legacies payable out of personal estate, Bullock v. Downes, 9 H. L. C. 1, 14. A residue bequeathed by will is clearly within the statute. Portlock v. Gardner, 1 Ha. 604; Prior v. Horniblou-,- 2 Y. & C. 200. The right of the legatee may be barred as to assets received more than the prescribed period before the com- mencement of the suit, but not barred as to assets received since. Adams v. Barry, 2 Coll. 290 ; lie Johnson, 29 C. D. 964. A suit to recover a legacy from an executor is within the REMEDIES AGAINST. 225 section unless the legacy is vested in him on express trusts. A mere constructive trust will not prevent the statute from being a bar. Re Davis, (1891) 3 Ch. 119 ; Re Barker, <1892) 2 Ch. 491. The section does not appear to extend to intestacies, the result being that a legatee will be barred after twelve years, but next of kin not until after twenty years. Sutton v. S., 22 C. D. 511, 517. By sect. 10, no proceeding shall be brought to recover any sum of money or legacy charged upon any land or rent and secured by an express trust, or to recover arrears of rent or interest or damages in respect of such arrears, -except within the time within which the same would be recoverable if there were no such express trust. 37 & 38 Viet. c. 57, s. 10. This section seems inconsistent with the Judicature Act, 1873, s. 25 (2) ; but the first section applies as between the land charged and the cestui que trust, whilst the second one applies as between the trustee and the cestui que trust. Fernside v. Flint, 22 C. D. 579 ; Hughes v. Coles, 27 C. D. 231. By 3 & 4 Wm. 4, c. 27, s. 42, no arrears of rent or interest in respect of any money charged upon any land or rent or in respect of any legacy shall be recovered but within six years after the same became due. This does not apply where there is a trust for payment. Cunningham v. Foot, 3 A. C. 974. Nor to an annuity given by will and not charged on land. Hock v. C alien, 6 Ha. 531 ; Re Ashwcll, Johns. 112. Where legatees waited for payment of their legacies until a reversionary interest had fallen in, they were allowed interest from a year after the testator's death, such interest largely exceeding six years' arrears. Re Blackford, 27 C. D. 676 ; but see Webster v. IF., 10 Ves. 93. By the Trustee Act, 1888, s. 8, which applies to executors and administrators, trustees are enabled to plead the Statute of Limitations. L.R. Q 226 REMEDIES AGAINST. i The general effect of this section seems to be that when- ever an action is brought by a beneficiary against a trustee, whether in respect of land or money, and whether the defendant is sought to be charged under an express or constructive trust, the defendant will be entitled to the protection which the section gives, unless the plaintiff can prove either (1) fraud or fraudulent breach of trust, or (2) that at the time of action brought the trust property or proceeds thereof are still retained by the trustee, or (3) that previously to the bringing of the action such property or proceeds were received by the trustee and converted to his own use. If the plaintiff bring his case within one of those three, the old law will still apply ; if not, the section will take effect. Lewin, 1009. With regard to when the time begins to run, if it has once begun to run in the debtor's lifetime, it will not cease to run between his death and the time when the represen- tative is constituted. Boatwright v. B., L. R. 17 Eq. 71 ; ante. In cases of fraud or mistake the statute runs from the discovery. Ecc. Com. v. N. E. Ry., 4 C. D. 860. An executor cannot protect himself by the Statute of Limitations from payment of a debt due from himself to the testator by deferring proof "of the will. Ingle v. Richards, 28 Beav. 366. It has been held that an action by one creditor on behalf of himself and all other creditors prevents the statute run- ning against another creditor. Sterndale v. Haitkinson, 1 Sim. 393. But this is very doubtful ; and, at all events, an action for administration by one creditor, not on behalf of himself and all other creditors, does not save the claim of another creditor which was barred by the statute before judgment. EC Greaves, 18 C. D. 551. Another creditor will not be allowed in a creditor's action to set up the statute against the plaintiff whose claim is the foundation of the judgment. Dan. 1023. REMEDIES AGAINST. '227 By the Debtors Act, 1869, s. 4, a trustee or person Arrest, acting in a fiduciary capacity may be arrested or impri- soned for making default in payment of any sum in his possession or under his control, and ordered to be paid by a Court of Equity. In an action against an executor or administrator, other Costs, than an administration action, costs are in the discretion of the Court, and will generally be governed by the ordinary rule which throws them on the unsuccessful party. Where a creditor sues for his debt and is successful, the Court will direct payment of his debt and his costs out of the estate (Dan. 1175, 1219) ; but unless the estate is insufficient, no order is made as to the representative's costs, upon the principle that he may reimburse himself out of the assets. Dan. 1219 ; Bluett \. Jcssop, infra. But in an administration action his costs, as between solicitor and client, are provided for ; and even where assets are insufficient to pay debts, these costs and any charges and expenses properly incurred by him continue the first charge on the estate. Dan. 1220. But in cases of fraud, evasion, or neglect of duty the Court will not merely refuse the executor his costs, but order him to pay them or such of them as are attributable to his breach of duty. Dan. 1220. And he may be made to pay the costs of any unnecessary or vexatious proceeding. lie Cabburn, ante, p. 199. Where, on an originating summons for an account, the Judge does " not think fit to make any order as to costs," it operates as a refusal to allow the trustee his costs, and is inconsistent with his retaining them out of the estate. lie Hodykinson, (1895) 2 Ch. 190. Mere negligence, however, is not sufficient to deprive him of his costs. Morgan & Wur. 179 ; but see Dan. 1215. Costs are not in the discretion of the Court, and the representative is not to be deprived of them unless he has unreasonably instituted or carried on or resisted any proceedings. Ord. 65, r. 1. Q2 228 REMEDIES AGAINST. The rule is that a representative is entitled to his costs, including costs, charges, and expenses, unless he is guilty of such misconduct as justifies the Judge in depriving him of them. Re Love, 29 C.V. 348; &ndsee Re Knight, 1QC.~D.S2. As to what is such misconduct, see Re Radcliffe, 50 L. J. Ch. 317 ; Re Weall, 42 C. D. 674 ; Re Cabburn, 46 L. T. 848 ; Dan. 1211, et scq. An order refusing a representative his costs can be appealed from. Re Love, 29 C. D. 348. But an order allowing him costs, though guilty of mis- conduct, cannot. Charles v. Jones, 33 C. D. 80. No costs are given to a representative who is a debtor to the estate until his debt is paid. Smith v. Dale, 18 C. D. 516 ; Lewis v. Trask, 21 C. D. 864 ; Re Basham, 23 C. D. 195 ; and see McEwan v. Crombie, 25 C. D. 175. Where an executor who is indebted to the estate becomes bankrupt, his costs incurred prior to the bankruptcy are set off against the debt. Smith v. Dale, supra; Re Basham, supra; Re Vowles, 32 C. D. 243. But an executor is not entitled to his costs incurred after the bankruptcy unless he pays the debt. Re Basham, supra ; Re Vowles, supra. But now, by the Bankruptcy Act, 1883, s. 30, a bankrupt executor or administrator only remains liable to the estate for debts incurred by fraudulent breach of trust. The consequence is that where his debt is for a fraudulent breach of trust he will get no costs at all ; if the debt arise on any other ground, he will get his costs subsequent to the bankruptcy. Wms. 1940. Where the Court has derived assistance from having the executor represented in the action, it will sometimes allow him costs, though he remains a debtor to the estate. Re Basham, 23 C. D. 195. An executor who has not been guilty of dishonesty, and has made good any deficiency, will not be ordered to pay costs. Peacock v. Colling, 54 L. J. Ch. 743 ; Re Wliiteley, 33 C. D. 347. REMEDIES AGAINST. 229 Where the estate is insufficient for payment of costs, executors are entitled to payment of theirs in priority to all other parties. Dothh v. Tuke, 25 C. D. 617 ; and see Itf Mayhew, 5 C. D. 596. And they are entitled to their costs and expenses in priority to the debts incurred by them in carrying on the business lawfully and with the consent of creditors. Re On-cn, 66 L. T. 718. And in priority to those of a receiver and manager. Ramsay v. Simpson, (1899) 1 Ir. R. 69. Where a creditor proceeds against a representative, and there are no assets, the representative, if not in default, is entitled to be paid his costs by the creditor. Hibernian Bank v. Lander, (1898) 1 Ir. R. 262 ; Bluett v. Jessop, Jacob, 240. But the plaintiff is entitled to judgment for his debt and costs also against assets quando. Cockle v. Treacy, (1896) 2 Ir. R. 267. The executor of a defaulting trustee is entitled to his costs out of the assets of his testator, even though they may be insufficient to repair the breach of trust. Haldenby v. fywftorth, 9 Beav. 195 ; and see Re Griffiths, 26 C. D. 465. APPENDIX. 60 & 61 VICT. CHAP. 65. An A<'t to establish a Real Represcntatire, and to amend the Land Transfer Act, 1875. [6th August, 1897.] \VHKEEAS it is expedient to establish a real representative, and to amend the Land Transfer Act, 1875, in this Act 38 & 39 Viet, referred to as the " principal Act" : c - 87t Be it therefore enacted, &c. PART I. Establishment of a Real Representative. 1. (1.) Where real estate is vested in any person with- Devolution of out a right in any other person to take by survivorship it l ^ 1 ^^f 1 shall, on his death, notwithstanding any testamentary on death! disposition, devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him. (2.) This section shall apply to any real estate over which a person executes by will a general power of appointment, as if it were real estate vested in him. (3.) Probate and letters of administration may be granted in respect of real estate only, although there is no personal estate. (4.) The expression " real estate," in this part of this Act, shall not be deemed to include land of copyhold tenure or customary freehold in any case in ^which an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant. 232 APPENDIX. Provisions as to adminis- tration. Provision for transfer to heir or devisee. (5.) This section applies only in cases of death after the commencement of this Act. 2. (1.) Subject to the powers, rights, duties, and liabilities herein-after mentioned, the personal repre- sentatives of a deceased person shall hold the real estaie as trustees for the persons by law beneficially entitled thereto, and those persons shall have the same power of requiring a transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such personal estate. (2.) All enactments and rules of law relating to the effect of probate or letters of administration as respects chattels real, and as respects the dealing with chattels real before probate or administration, and as respects the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of personal repre- sentatives in respect of personal estate, shall apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in them or him, save that it shall not be lawful for some or one only of several joint personal representatives, without the authority of the court, to sell or transfer real estate. (3.) In the administration of the assets of a person dying after the commencement of this Act, his real estate shall be administered in the same manner, subject to the same liabilities for debt, costs, and expenses, and with the same incidents, as if it were personal estate ; provided that nothing herein contained shall alter or affect the order in which real and personal assets respectively are now applicable in or towards the payment of funeral and testa- mentary expenses, debts, or legacies, or the liability of real estate to be charged with the payment of legacies. (4.) Where a person dies possessed of real estate, the court shall, in granting letters of administration, have regard to the rights and interests of persons interested in' his real estate, and his heir-at-law, if not one of the next of kin, shall be equally entitled to the grant with the next of kin, and provision shall be made by rules of court for adapting the procedure and practice in the grant of letters of administration to the case of real estate. 3. (1.) At any time after the death of the owner of any land, his personal representatives may assent to any devise contained in his will, or may convey the land to any person APPENDIX. 233 entitled thereto as heir, devisee, or otherwise, and may make the assent or conveyance, either subject to a charge for the payment of any money which the personal repre- sentatives are liable to pay, or without any such charge ; and on such assent or conveyance, subject to a charge for all moneys (if any) which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to any acts done or contracts entered into by them before such assent or conveyance. (2.) At any time after the expiration of one year from the death of the owner of any land, if his personal repre- sentatives have failed on the request of the person entitled to the land to convey the land to that person, the court may, if it thinks fit, on the application of that person, and after notice to the personal representatives, order that the conveyance be made, or, in the case of registered land, that the person so entitled be registered as proprietor of the land, either solely or jointly with the personal representatives. (3.) Where the personal representatives of a deceased person are registered as proprietors of land on his death, a fee shall not be chargeable on any transfer of the land by them unless the transfer is for valuable consideration. (4.) The production of an assent in the prescribed form by the personal representatives of a deceased proprietor of registered land shall authorise the registrar to register the person named in the assent as proprietor of the land. 4. (1.) The personal representatives of a deceased Appropriation person may, in the absence of any express provision to of "5 '." t, * . . n . ., -i, ;. -, i satisfaction of the contrary contained in the will ot such deceased person, i efracy or with the consent of the person entitled to any legacy given share in by the deceased person or to a share in his residuary estate, estate, or, if the person entitled is a lunatic or an infant, with the consent of his committee, trustee, or guardian, appropriate any part of the residuary estate of the deceased in or towards satisfaction of that legacy or share, and may for that purpose value in accordance with the prescribed provisions the whole or any part of the property of the deceased person in such manner as they think fit. Provided that before any such appropriation is effectual, notice of such intended appropriation shall be given to all persons interested in the residuary estate, any of whom may there- upon within the prescribed time apply to the court, and 234 APPENDIX. such valuation and appropriation shall be conclusive save as otherwise directed by the court. (2.) Where any property is so appropriated a conveyance thereof by the personal representatives to the person to whom it is appropriated shall not, by reason only that the property so conveyed is accepted by the person to whom it is conveyed in or towards the satisfaction of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for a like purpose. (3.) In the case of registered land, the production of the prescribed evidence of an appropriation under this section shall authorise the registrar to register the person to whom the property is appropriated as proprietor of the land. Liability for 5. Nothing in this part of this Act shall affect any duty dut y- payable in respect of real estate or impose on real estate any other duty than is now payable in respect thereof. 25. This Act shall come into operation on the first day of January, one thousand eight hundred and ninety-eight. INDEX. ABATEMENT annuity, 131 legacies, 130 none of actions in general, 200 ABKOAD executor, 3 administration dtmmte absentia, 32 ACCEPTANCE OF OFFICE acts sufficient to show, 13 cannot be partial, 15 probate is, 15 ACCOUNTS copy of, legatee must pay costs of, 186 discharge on passing, 199 duty of executors to be ready with, 18(5 liability of executors to be sued for, 180 neglect to render, 186 one exectitor may settle, 91 sue another for, 95 taking, in Chambers, 200 ACCOUNTANT executors may charge for, when, 190 ACKNOWLEDGMENT what sufficient to bar statute, 197 ACQUIESCENCE when a defence, 185 ACT-BOOK evidence of appointment of executor, 194 286 INDEX. ACTIO PERSON ALIS MORITUR when it applies, 64 ACTION BY REPRESENTATIVES for administration, 217 trespass or trover, 64 in respect of valueless shares, 64 infringement of trade mark, 64 malicious statement, 64 parties to. See PARTIES. ADMINISTRATION action for, parties to, 222 ad colligenda, 24 ad h'tem, 35 attorney of next of kin, to, 24 costs of, order of priority, 104 executor's, priority of, 227 Court, by, a complete discharge to execiitors, 199 cum testamento annexo, when granted, 25 to whom, 26 de bonis non, when granted, 27 to whom, 28 discretion of Court as to grant of, 199 domiciled abroad, to person, 24 durante absentia, 32 corpora et animi vitio, 3 dementia, 34 minore estate, 28 foreign, 24, 204 grants of, evidence of title, 194 as to next of kin, 38 general and limited, 21 35 made only in respect of assets in this country, 24 made to part of estate, 35 not made till executor has refused, 15 on consent of executor, 15 nor without citation of parties entitled, 26 revocation of, 40 to exclusion of executor, 2 to whom made, and in what order, 21 to person domiciled abroad, 24 guardians, 28 heir to, 25 INDEX. 237 ADMINISTRATION continued. intermeddler not compelled to take, 24 joint, discouraged, 22 judgment for, not against representative abroad, 204 against administrator durante minore, 30 liability of executors under, 217 creditors cannot sue after, 197 effect of, on powers of executors, 89, 215 rights of creditors, 1 14 executor before probate, against, 204 limited to English assets, need not be, 150 originating summons, on, 199 wilful default, as for, when, 191, 210 jurisdiction to grant, 38 letters of, conclusive as to what, 38 foreign, 24 revoked representatives may reimburse themselves, 40 payments made under, valid, 40 valid till revoked, 38 liability of executors to be sued for, 30 limited doubly, 27 to legal proceedings, 35 to legacy, 35 lost will in case of, 35 not where general can be granted, 35 to particular fund, 35 to such property as wife could dispose of, 22 one renouncing in one character cannot take in another, 16 order for. See JUDGMENT FOR, supra, pendente lite, when granted, 30 renouncing, 15 retracting renunciation, 15 time for taking, 20 what amounts to, to prevent renouncing, 14 And see ADMINISTRATOR, INFANT, MARRIED WOMAN, RENOUNCE, RENUNCIATION, REVOCATION. ADMINISTRATOR abroad, 24 ad colliyenda, 24 ad litem, 35 administration, acting before, may be sued, 43 suing before, 21 appointment of, property vests on, 42 238 INDEX. ADMINISTRATOR contin ued. business, power to carry on, 201 capable of being, who is, 25 cum testamento, 25 death of joint, office survives, 49 de Ion is non, 27 tie sort tort, none, 11 difference between, and executor, 42 discretion, has not same as executor, 20 domiciled abroad, 24 distribution by, under statute, 147 (furante absentia, 32 dementia, 34 mi nor e ictate, 28 each has entire control over estate, 94 except real estate, 92 estate, vests in, 42 executor of, does not represent testator, S joint, same as joint executor, 49 jurisdiction, out of, judgment against, 204 payment to, good discharge, though will existing, 40 under revoked grant, 40 2>ende)tte lite, 30 personal and real estate vests in, 48 proceedings, cannot maintain, for more than covered by duty, 194 real estate vests in, 73 And see REAL ESTATE. reimbursement by, though grant revoked, 40 ,. revocation of grant may take steps for, 41 similarity between, and executor, 42, 94 solicitor, rights of. See SOLICITOR. title derived from administration, 42 relation back of, 43 trustee, when a, 205 And see EXECUTOR. ADMISSION OF ASSETS effect of, 211 110 estoppel to prevent account, 211 one executor, by, does not bind others, 211 retracted, when may be, 211 what amounts to, 212 ADVANCEMENT to infants, 140 INDEX. 239 ADVANCES further, by executors to secure former, 174 interest on, when allowed executors, 191 retainer of, by executors, 191 ADVERTISEMENT for creditors, statutory, 125 ADVICE of Court, executors may apply for, 203 ADVOW8ON passes as real estate to representative, 7-4 when executor may present. See CHURCH. AFFIDAVIT wilful default raised by, 210 AGENT acts done as, do not prevent renouncing, 1 1 of executor de sou tort, 1 1 charge for, when representative entitled to, 190 default of, when representative liable for, 181 of executor, 11 of co-executor, 15 employing co-executor as, 18-4 AGRICULTURAL HOLDINGS ACT executor's charge for compensation under, 59 ALIEN may be executor or administrator, 2, 25 ALIMONY, 69 ALLOWANCES, 188 AMBIGUITY in description of executor, 4 ANCIENT LIGHTS obstructing action for, 65 ANNUITY passes to executors when, 67 apportionment of, 68 abatement of, 131 executor, to, duration of, 129 has no preference, 129 time, when to be paid, 137 to A. and his heirs, 75, 137 240 INDEX. APPOINTMENT property subject to power of, passes to representative, 73 And see EXECUTOR. APPOETIONMENT ACT, 1870... 68 APPEENTICESIIIP determined by death, 68 return of premium, 168 APPROPRIATION powers of, 138 under Land Transfer Act, 81 ARBITRATION executors bound by deceased's submission, 72 may submit to, 172 whether an admission of assets, 213 reference by testator, effect of, 72 ARREARS annuity, 120, 142, 218 alimony, 69 interest on, of income, 187 pin-money, 69 rent, 68, 164 ARREST of representative for default in payment, 227 attachment, 314 ARTICLED CLERK cannot recover premium from executor, 1 68 ASSENT OP EXECUTORS doctrine of, 132 donatio mortis causa not requisite to, 63 implied or conditional, 133 legatee taking without, liable, 132 life estate, to, is assent to remainder, 135 unless executor is tenant for life, 135 necessary though executor is legatee, 134 one executor by, effectual, 136 personal liability of executor after, 134 real estate. See REAL ESTATE. release of debt, whether necessary to, 132 retractation, 134 specific legacy to, makes executor trustee, 1 34 women, married, 79 INDEX. ASSETS admission. .See ADMISSIOX. equitable, 150 foreign, 150 legal, 150 marshalling, 153 purchase of by representative. .See PURCHASE. real, 73, 151 And see ExECUTOlt, EETAINER. ASSIGN executor cannot, office, 7 ATTACHMENT OF REPRESENTATIVE, 214 ATTORNEY acts done as, do not prevent renunciation, 15 administration granted to, 24 power cannot be exercised by, 90 bills accepted by, liability of executors, 172 probate by, does not break chain, S power of, liability of executors paying money under, 142 renunciation under, 15 AWARD liability of executors on, 72 BAILEE executor a gratuitous, 179 BALANCES when executor charged with interest on, 187 BANKER default of, when representative liable, 182 Trustee Act, 182 BANK OF ENGLAND bound to recognise executors' right to stock, 132 BANKRUPT estate of, vests in representative when bankruptcy annulled, ex purte Goodwin, 1 Atk. 100 executor of bankrupt not entitled to chose in action, 68 may be restrained from acting, 2 goods left in possession of, 45 receiver appointed, 2, 45 proof for devastavit, 214 legatee, administration to trustee of, 24 L.R. R 242 INDEX. BANKRUPTCY administration of estate in, 108 petition in, by executor, 19 proof by executor for demstavit in his own, 214 of representative how it affects assets, 45 trustee in, ordered to return assets, 45 BILLS indorsement of by executor, 89 BLANK SPACE in will, 146 BODY cremation, 104 BOND administration, assignment of, 37 breach of, 37 dispensed with cannot be, 36 executed l>y other than administrator, 36 husband not required to join, 36 retainer, notwithstanding, 37 sureties, 36 voluntary, payable after simple contract debts, 112 BREACH OF PROMISE executors cannot sue or be sued, unless injury to estate, 66 BROKER default of, when executors liable, 182 BURIAL OF DECEASED expenses of, 104, 173 does not make executor de son tort, 10 BUSINESS administrator may carry on, when, 173, 201 executor may employ what assets in, 174 executors' liability for carrying on, 174, 201 cannot borrow for, 86 sharing profits, not a carrying on, when, 175 And see PARTNER, PARTNERSHIP. CAMPBELL'S ACT (LORD), 65 CHAIN OF REPRESENTATION of executors, 8 INDFX. 243 CHARGING ORDER creditor who has obtained, will not be stayed, 198 CHATTELS REAL only vest on entry, 44 action for injury to, 60 CHOSES IN ACTION of corporation sole, 68 of married woman, 69 CHURCH dilapidations, 113 next presentation, when it goes to executor, 74 when assets, 74 And see ADVOWSOX. CITATION on limited grant, 35 of executor, 13 of person entitled in priority, 26 on grant to heir, 25 to take probate, 13 disobedience to, 13 non-appearance to, 13 CLERK salary of, priority, 113 articled, premium of, 168 COADJUTOR or overseer, 5 COLLECTION OF ESTATE commission on, executor allowed, when, 190 duties of executors as to, 190 colonial allowances for, 190 liability for not collecting, 179 COLLECTOR executor may be allowed salary of, 190 COLLUSION between executor and debtor, 87, 187 vitiates sale or mortgage by executor, 86 R'2 244 INDEX. COMMISSION executors not allowed, 190 except in colonies, 190 COMPANIES ACTS, 161 COMPANY appointed executor, 1 executor de son tort, 13 executors may petition to wind up, when, 19 liquidator may obtain judgment for administration, 161 surety to administration bond, 37 And see SHAREHOLDER, DIRECTOR. COMPROMISE power of representatives to, 90 CONCUERENCE of beneficiary, when a protection, 185 CONDITIONS appointment of executor on, 7 estate by, 56 CONDUCT OF PROCEEDINGS when executors deprived of, 220 CONSENT of executor, administration not granted on mere, 15 And see CITATION. CONTINGENT INTERESTS, 71 CONTINUANCE OF ACTIONS by representative, 72 CONTRACT binds executors, though not named, 155 borrow, to, executors liable on, 170 breach of, entered into with deceased, 155 build a house, to, 156 executor cannot bind co-executor, 92 implied for remuneration, liability of executors on, 169 CONTRIBUTION between co-executors, 95 CONVERSION duties of executors as to, 144 liability for non-conversion, 180 INDEX. 245 CONVERSION confinue ambiguous, 3 conditional, 7 delegated, may be, 5 implication, by, 5 nomination, by, 5 proved by probate or act-book, 194 qualified, may be, G substitutionary, 6 uncertainty, void for, 6 appointed fund, entitled to administer, 73 250 INDEX. EXECUTOR coitthi uetl. appropriation, powers of, 138 arbitration, may go to, 172 assent to gift. See ASSENT. assets. See ASSETS. assign his office, cannot, 7 auctioneer, may not charge, 100 bailee, a gratuitous, 179 banker, default of, 182 bankrupt, 2, 45 bankruptcy of, receiver, 2, 45 bills, liability on, 89 breach of trust, liability for, 175 business, carrying on. See BUSINESS. buying debts or legacies, 187 capable of being, who is, 1 co-executor, cannot deprive, of benefit of statute, 197 bind by contract, 92 liable for acts and defaults of, 183 ought to watch over, 184 parting with control to, 183 collusion with pui'chaser, 86 commission, not allowed, 190 company. See COMPANY. compromise, power to. See COMPROMISE. conditional appointment of, 7 contracts of testator, binding on, when, 155 conversion of estate, duty of, as to, 180 corporation may be, 1 creditors. See CREDITORS. de son tort, action against, 11 acts of, how far binding on representative, 12 what, will make a man, 9 administration, cannot be compelled to take out, 24 agent of, liability of, 1 1 contracts of, 12 definition of, 9 discharge, how obtained, 1 1 duty, liable for, 13 liability of, extent of, 11 of one for another, 1 1 of rightful executor, 12 on covenants in lease, 165 2>leue ttdministrant, may plead, 11 INDEX. 251 EXECUTOR conti de son tort, privileges, has no, 11 receiving property from an, does not make an, 10 retainer by, 12 rightful executor cannot exist with, 10 sued, may be, by whom, 11, 12 debtor appointed, no extinction of debt, 122 debts, liability to pay. See DEBTS. delegating appointment of, 5 office, liable for delegate, 183 demstarit, liable for. See DEVASTAVIT. devolution of office, 7 direction of Court, may apply for, 203 director of. See DIRECTOR. discharged from office, cannot be, 3 discretion, when, may exercise. See DISCRETION. distribution. See DISTRIBUTION. (liirante miiiore cetate, 28 duty, liable for. See DUTY. dying before probate, acts of, valid, 18 each may act, but cannot bind others by contract, 92 establishment, time for breaking up, 177 executor of, powers of, 95 represents first testator, 7, 95 retainer by, 118 revocation of probate by, 41 Frauds, Statute of, may not pay debts barred by, 167 from or until a certain time, 6 funeral expenses, liable for, what, 173 gift, intended, need not be completed by, 168 " gratuity " to, void for uncertainty, 129 ill, too, to act, 3 impounding intei-est, 18-3 indemnity clause, how far a protection, 184 infant, not competent, 2 information, duty to give, 186 insure, not bound to, 166 interest charged against, 187 intermeddling, is bound to prove, 14 investment, duties of, 180, 181 judgments, bound to take notice of, 105 lease, power to grant, 88, 89 leaseholds, liability of, on, 124 legacy to executor, 126 252 INDEX. EXECUTOE continued. liability, not divisible, 15 Limitations, Statutes of. See LIMITATIONS, STATUTES OF. limited, 6 married woman, powers of, 96 mesne profits, decreed against, 157 mortgage, power to, personal estate, 86 real estate, 78 mortgagee cannot buy equity, 187 note payable to order of testator, may indorse, 89 notice of judgment, 105 office, acceptance of, what amounts to, 13 one can act, when, 91 partner, liability of representative of, 160 passed over, may be, and letters granted, 2 payment into Court by, 202, 208 to parties not entitled, 141 penalty, no action against, for, 156 personal and real estate vest in, from death, 73 poverty no ground for receiver, 2 powers of, 83 how affected by judgment, 215 preference, has right of, 113 probate, actions before, maybe commenced, 18 dying before, acts of, 18 purchase-money need not be paid before, 18* may be sued before, 19 promise to pay deceased's debts, 171 purchase assets, may not, 88 purposes or properties, for several, 7 real estate. See EEAL ESTATE. receipts of co-executor, liability on, 185 receiver. See EECEIVER. refusal of office, 13 reimbursement by, though grant revoked, 40 removal of, 3 rent-charge, liability for arrears, 74 residue, when trustee of, for next-of-kin or Crown, 145> retainer. See RETAINER. revocation of probate, may not take steps for, 41 sale, liable for improper, 179 selling for lower price than offered, 179 set-off. See SET-OFF. shareholder of, liability of, 161 INDEX. 253 EXECUTOR Cnnthmrtl. solicitor acting as. See SOLICITOR. special ca.se, may concur in, 203 suing co-executor, 16 tenor, according to the, 4 time and trouble, cannot claim for, 189 title derived from will, 42 trespass and trover, actions for, by, 18 trustee, conversion of, into, 17 use and occupation, 105 waste by deceased, action against, for, 178 who may be, 1 work done, liability of, for, 21, 43 And see ADMINISTRATOR, COSTS, MARRIED Wo MAX, REAL ESTATE, RENUNCIATION. EXECUTORS joint, one person in law, 7 rights of, inter se, 91, 94, 183 transfer of bank stock or railway shares, all must join, 93 who have proved, may sue alone, 192 EXONERATION executor obtains, by administration under the Court, 199, 223 of personal estate, 152 FELON may be executor, 2 legacy to, 141 FIRM maybe executor, 1 FIXTURES, 61 FOLLOWING ASSETS by creditors, 223 legatees must refund, when, 143 FOREIGN administration, 204 assets, 149 creditors, 106 executor, 3, 204 FORFEITURE of lease on bankruptcy, 45 254 INDEX. FORGERY probate of forged will cannot be impeached; when, 38 FRAUD of others, when executors liable for, 182 sale or mortgage by executors, vitiated by, 86 in will can only be impeached in Probate Division, 38 FRAUDS, STATUTE OF agreement by executors to be liable must be in writing, 171 executors cannot pay debt barred by, 177 FRIENDLY SOCIETY priority of debt due by deceased officer, 107 FUNERAL. See BURIAL. GAME when incident to the freehold, 58 GARNISHEE ORDER when made against executor, 169 GIFT imperfect, executor need not complete, 168 GUARANTEE executors liable on deceased's, 168 GUARDIAN grants of administration to, 28 minor and infant, of, 29 of infant executor, 2 HALF-BLOOD equally entitled in distribution, 148 whole- blood preferred on grant of administration, 23 HEIR real estate vests in, till representative constituted, 75 HEIRLOOMS, 60 HINDE-PALMER'S ACT, 111 HUSBAND need not join in wife's administration bond, 36 right to administer to wife, 21 his representatives' right to administer, 21 no liability of, for acts of wife executrix, 185 liability ijua representative for antenuptial contracts, 168 INDEX. 255 IMPOUNDING share of debtor to estate, 18o INDEMNITY, 210 clauses, how far a protection, 184 against payments under invalid grant, 40 INDIAN assets, commission on, 199 INFANT administration granted to guardian of, 2S advancement, 140 capacity for grant of administration, 2.S executor, not competent, 2 legacy to, payment of, into Court, 139 maintenance, 140 INJURY to person of deceased, Go, 66 to property by deceased, action against executors, 158 to personal property of deceased, 66 to real estate of deceased, 66 INSOLVENCY no ground for refusing probate, 2 INSURANCE allowing life, to drop, 179 INSURE executors may, but need not, 166 INTEREST advances on when allowed, 191 balances on, when executor liable for, 187 charged against executors, when, 187 compound, when charged, 188 contingent, transmissible to executors, 74 executory, in real estate, 74 grant follows the interest, 26 legacy, on, from what time, 142 legatees need not refund with, 144 INTERMEDDLING executor, cannot renounce, 14 constitutes one an executor de son tort, 9 one, not compelled to take out administration , 24 penalty on, without taking probate or administration, 14 what constitutes, 9 256 INDEX. INTESTATES' ESTATES ACTS estate of intestate under 500L go to widow, 147 INTESTATES' WIDOWS AND CHILDEEN ACTS estates under 100L, administration of, 17 INVESTMENT duties of executors as to, 181 liable for improper, 181 powers of executor as to, 180 JOINT contract, 159, 160 property does not devolve, except partnership, 48 JUDGMENT confess, executor may, to give preference, 113 effect of, for administration, 89, 126 for wilful default, 210 for simple contract debt has priority, 109 foreign, simple contract debt only, 109 notice of, executors bound to take, 105 order nisi to sign, gives no priority, 109 priority of, 110 testator, against, precedence amongst, 109 JUDICIAL TEUSTEE ACT, 182 JUEISDICTION administrator out of, judgment against, 34 County Court, 17 executor out of, ground for receiver, 2, 3 to grant probate and administration, 38 to stay proceedings before grant, 19 JUSTIFYING by sureties to administration bond, 37 LACHES, 125. And see DELAY. LAND TEANSFEE ACT, 1897, Appendix, p. 231. And sec REAL ESTATE. LEASE liability of executors under, 124, 166 offer to surrender, some protection, 55, 164, 176 power to, of representative, 78 renewal of, by, 167 forfeiture on bankruptcy of representative, 45 INDEX. 257 LEASEHOLDS assignment of, by executor, 164 administration where estate consists of, 12 5 cum onere legatees take, 168 liability of executors, 124 occupation by executors, 165 sale of, by executor, 124 specifically bequeathed vest in executor, 54 vest on entry, 44 upon assent in legatee, 134 vesting by relation, 43, 134 LEGACY administration limited to, 35 appropriation. See APPROPRIATION. assent to. See ASSENT. barred by statute, when, 196, 225 buy, executor'^may not, when, 187 discharge for, 139 distribution of, 123, 144 executor disentitled to, by misconduct, 129 takes qua executor, subject to rebuttal, 127 must act in order to have, 127 conditional on payment of debts, 129 no priority for, 126 infant to, paid into Court, 139 interest on. See INTEREST. Limitations, Statute of, when a bar, 196 preference, executor has none, 130 set-off against, 120 specific, assent to, makes executor a trustee, 134 time within which to be paid, 136, 144 vest, does not, without as.ent, 132 work done in expectation of, 169 LEGACY DUTY ACT, 101 LEGATEE duty, recovery of, from, 144 inchoate right before assent, 79, 132 taking possession without executor's assent, 132 refunding by, 143 residuary, 144 universal, not executor according to tenor, 5 L.R. S 258 INDEX. LIMITATIONS, STATUTES OF, 195, 223 acknowledgment by executors, 92, 197 action not. barred by, may be by acquiescence, 1S5 debts barred, executors may pay, 196 legacies, when barred by, 196, 224 executors may plead, though need not, 196 others than executors may plead, when, 11-4 residue when barred, 196 run against executors, when, 223 in favour of executors, when, 196 administrators, when, 44 no interval between death and grant, 44 LOCKE-KING'S ACTS, 152 LUNATIC incapable of being executor, 3 where one representative becomes, grant is revoked, 34 sole representative becomes, grant durante dementia, 3, 34 next of kin becomes, 24 MAINTENANCE out of infant's legacy or share, 140 power of executors as to, 140 MARRIED WOMAN administration to husband's estate, 22 assent by, 79 antenuptial contracts, 185 executrix, devastavit, 185 funeral expenses of, 104 grant of probate or administration to, 2, 23 husband liable for her as executrix, when, 185 legacy to, discharge for, 141 may be executrix, 2 MERGER of estates of executors, 47 MESNE PROFITS account of, against executors, 157 MISREPRESENTATION by deceased, action against executors, 164 MISTAKE payment by, 141 INDEX. 259 MONEY mixing his own and testator's, 46 MORTGAGE debts, personal estate exonerated from, 152 estate, devolution of, 55 executors power to, 85, 86 no power to mortgage for repairs, 85 one executor, by, effectual, when, 92 MORTGAGEE executor of, buying equity, 187 NECESSITY acts of, do not make executor, 9, 14 NEGLIGENCE executors liable for deceased's, when, 155 of executors, 178 NEXT OF KIN decision of P. D. conclusive as to, 38 entitled to administration, when, 23 of equal degree, 23 priority of, 23 residue, when executor trustee of, for, 145 rights of, to administration, 23 under statute, 148 set-off against share of, 121 statutory advertisements apply to, 125 widow preferred to, 22 NEXT PRESENTATION. See CHURCH. NOTICE payment of inferior debt without, 105, 115 whether one executor affected by notice to other, Ambl. 162 payment of legacy without, 143 protection by statutory, 125 OCCUPATION RENT executors liable for, 165 OFFICE of administrator, 20 executor, devolution of, 7 refusal of, 13 survives, 8 cannot be assigned, 7 82 260 INDEX. OFFICE COPY of will, evidence of executor's title, 16 ONE OF SEVERAL REPRESENTATIVES when he can act, 91 when liable for others, 183 OPTIONS executor cannot give, to purchase, 78 ORIGINAL WILL when examined in Court, 39 ORIGINATING SUMMONS, 199, 218 any question arising in administration, 218 disputed debt cannot be determined, 217 executor must plead Statute of Frauds, 218 OUTLAW may be executor, 2 PAPERS right of executor to deceased's, 83 PARAPHERNALIA wife may still acquire, 62 PARTIES TO ACTIONS creditors, 205, 219 debtor, 222 executors, all or some, 205 legatees and next of kin, 222 who represents estate, 221 PARTNER executors of, liability of, 160 discharged from liability when, 160 may apply to Court to wind up, 161 share of assets, 161 PATENT executor's interest in, 67 when granted to representative of inventor, 67 PAUPER may be executor, 2 PAUPE1US FORMA executor cannot sue or be sued in, 198 INDEX. 261 PAWN executor may redeem. 71 PAYMENT by or to one executor effectual, 91 mistaken, executors liable, 141 under revoked grant, 40 PAYMENT INTO COURT when executor may make, 202 compelled, 208 legatee not entitled to, 138 PENALTY executors not liable for, 156 on intermeddling without proving, 14 non-payment of duty, 102 PENDENTS LITE administration, 30 PERSONAL ESTATE primary liability of, 152 PERSONAL SECURITY lending money on, 180 leaving money on, 179 PIN MONEY. See ARREARS. PLEDGE. See PAWX. PLENE ADMINISTRAVIT executor de son tort may plead, 11 POLICY OF INSURANCE executors' liability for allowing to drop, 179 POSSESSION sufficient in action by representative, when, 18 requisite to charge executor de son tort, 1 1 for action by, 83 POSSIBILITY transmissible to representative, 74 POSTPONEMENT of conversion, 144 of sale, 178 262 INDEX. POVEETY no ground for receiver, 2 POWEK OF ATTOKNEY. See ATTORNEY. POWEES effect of judgment for administration, 89 exercisable by survivor, 94 before probate, 17 one executor may exercise, when, 91, 95 personal, not exercisable, 95 executors who act may exercise, 16 to compromise, 90 assign lease, 88 lease, 89 mortgage, 85, 86 sell, 84 distrain, 83 PEEFEEEKCE among creditors, 113 in grants of administration, 21 ft seq. PEESEXTATION next. See CHURCH. PEINCIPAL agent cannot sue executor of, 64 of executor de son tort, accounting to, 1 1 PEIOBITY. See DEBTS. PEOBATE acceptance of, 13 act-book, evidence of, 194 action before, 18 costs of probate, 104 after, cannot renounce, 15 citation to take, 13 conclusive when, 38 duty now estate duty, 97 dying before, acts of executor, 18 rights of, cease, 13 entitled to, who, 1 evidence, is, of appointment of executors, 38 executor dying before, 19 foreign, 204 INDEX. PROBATE contit, tie, I. forged will, of, 38 impeached when, 40 jurisdiction, 16 limited, 6 partial, 15 powers before. 1 7 real estate, evidence of will of, 3S revocation of, 40 sued, executor, befoie, 19 time, within which to be taken, 13, 14 And see DUTY, M.vr.llIEI") WoMAX, FoREIGX. PROFIT COSTS, 127 PROFITS executors accountable, 187 not set off against loss, 174, 1 s7 executor sharing, 175 PROMISSORY NOTE indorsed by executor, 8J voluntary, 112 PUB AUTRE VIE estates pass to executor when, 55 PURCHASE representative may not, from himself, 88 by executor of assets from sheriff. 47 money not payable before probate, 18 RAILWAY SHARES transfer of, 93 RATES priority of, 113 REAL ASSETS. See ASSETS. REAL ESTATE actions for injury to, 65 administration of, 77 administrator of, 79 advowson, 74 appointment, power of, over, ~-\ appropriation of, 81 264. INDEX. REAL ESTATE continued. assent, 79 assets, 73 contingent remainder, 74 conveyance to heir or devisee. 80 copyholds, 73, 79 devise, assent to, 79 duty, 81 entry, 75 escheat, 75 executor, devolves upon, 73 executory devise, 74 heir vests in, until administration, 75 injury to, 65 joint tenancy, 73 "land" in sect. 3. ..79 lease, power to, 78 legal estate in heir, 75 mortgage, 78 probate before dealings with, 77 rent-charge, 74 repairs, 166 rights of entry pass as, 75 sale, 78 tithes, 74 trustees, executors are, when, 80 widow's dower, 75 EEAL REPRESENTATIVE. See REAL ESTATE and LAND TRANSFER ACT. RECEIPTS liability of executors for, 185 one executor can give, 91 RECEIVER, 206 against trustee in bankruptcy of executor, 45 bankrupt executor, 2 whenever necessary to protect estate, 206 where misconduct by representative, 207 RECOGNIZANCE priority of, 111 REFUNDING by legatees, 143 residuary legatees, 143 INDEX. 255 REGIMENTAL DEBTS priority of, 107 RELATION BACK of title of representative, 43 RELEASE by one executor effectual, 91 administration under the Court, 199, 223 REMAINDER estates by, 56 REMOVAL of executor, 3, 207 RENEWAL of lease by executor, 167 RENOUNCE cannot renounce in part, 15 creditor executor, 16 executor not bound by agreement to accept, 13 of executor cannot renounce former will, 14 And see RENUNCIATION. RENT representative liable for, when, 165 recovery of, by representative, 68 has no preference, 111 when it goes to representative, 68 RENT-CHARGE when executors liable, 74 when protected under St. Leonards' Act, 124 passes under Land Transfer Act, 74 RENUNCIATION after acting, none, 13 attorney by, 15 discretion after, none, 15 executorship wholly ceases after, 15 filing is a refusal, 15 may be declared invalid, 14 one executor, by, effect on others, 16 partial, not allowed, 15 powers cannot be exercised after, 16 purchase of assets after, 88 26t) INDEX. RENUNCIATION- a.ntin ned. recorded, must be, before administration granted, 15 requisites of, 15 retractation of, 15 rights of executor cease on, 15 representation in another character after, 16 suing after, 16 withdrawn, can be, when, 15 REPAIRS of freeholds and copyholds, 15(5 leaseholds, 166 EEPEESEXTATION chain of, 8 RESIDUE distiibution of, 144 executor may take, when, 145 Crown takes, when, 146 RETAINER administrator put on terms not to exercise, 116 durante miiioritate, 117 dementia, 117 annuity, none in respect of, 120 assets, out of what, 116 coming in after judgment, 116 in Court, 116 legal, 150 bankruptcy, none in, 115 conduct, improper, may deprive, 115 costs, prevails against, 116 creditors of superior degree, against, when, 115 damages, for, 120 debts, for what, 1 20 statute-barred, 120 bequeathed, 116 disputed, not gone into by Master, 118 distribution, any time before, 115 executor de son tort, by, 118 of both creditor and debtor, 119 executor, 118 administrator, 118 one of several executors, 118, 120 co-executor, against, 120 INDEX. RETAINER contin m-d, joint, 120 legacy, none for, 116 legal assets, 116 not affected by Jiid. Act, 115 Iliiule-Pahner's Act, lid judgment for administration, 116 terms put upon administration, 116 pauper, 120 real estate, out of, 117 receiver, against, 116 surety, by, 119 trustee, by, 117 unascertained amount, 120 widow, by, for loan, US of whole assets, 115 RETRACTATION. See REXTTXCIATION. REVERSION estates by, vest in representative, 74 of term, when it vests, 44 REVOCATION of letters of administration, 40 probate, 40 grant, void or voidable, 40 effect of, 40 ST. LEONARDS' ACT, 124, 125, 203 SALE duties of executors on, 178 injudicious, 179 at lower piice than offered, 1 79 by one executor, 92 payment of debts for, when barred, 88 power, 84 set aside for undervalue, 176 against specific legatee, 88 SAVINGS BANK debt by officer of, priority, 107 SECURITY. See PERSONAL SECURITY, BOND. when legatee must give, against debts, 124 268 INDEX. SEBVANT representative has no interest in, 68 SET-OFF against legacy, 120 by administrator, 193 in actions by and against executors, 193 SHAREHOLDER liability of executors of, 161 SHARES pass to executor, when, 67 SHERIFF executor may purchase assets from, 47 SOLICITOR articled clerk, 168 default of, 182 executor acting as, 127 lien, 106 negligence, 155 SPECIAL CASE executor may concur in, 203 SPECIFIC LEGACY abatement, 130 sale of, 88 STAY OF PROCEEDINGS, 197, 220 until probate granted, 19 STOCK passes to representative, 67 SUCCESSION DUTY, 101 SURETY liability of executor of, 168 retainer by, 119 to administration bond, 36 SURRENDER liability for, 176 TENANT FOR LIFE executors of, liable under S. L. Act, 1882, s. 28 (5), 15 assent to, 135 INDEX. TENOR executor according to, 4 TERM surrender of, 170 TESTAMENTARY EXPENSES what included in, 104 TIMBER pusses to executor, when. 58 TIME no allowance to executors for, 189 when will to be proved, 13, 14 TITHES lease of, when it vests, 44 TORT actions for, by representatives, 64 done in executor's time, 69 TRADE. See BUSINESS. TRANSFER to C. D. of actions against executors, 198 P. D. of Chancery actions, 32 TRANSFER OF STOCK all executors must join in, 93 TRESPASS actions by executors, 18 against, 157 TRESPASSER by relation back, when, 44 TROUBLE no allowance to executors for, 189 TRUST breach of, by executor, 159 co-executor, 183 deceased, 159, 164, 229 acquiescence in, 185 lending on personal security, 180 A ni see DEVASTAVIT. 270 INDEX. TRUSTEE administration granted to, 33 administrator, when a, 205 death of, trust and mortgage estates vest in representative, 55 when executor converts himself into, 17 UNDERLEASE by representative, 88 USE AND OCCUPATION executor liable for, when, 165 VESTING of personal estate until administration, 44 real estate, 75 order, 209 VOLUNTAEY BONDS AND NOTES when paid, 112 WAGES priority of, 107 WASTE executors liable for, when, 178 WIDOW grant of administration to, 22 right to administer to husband, 22 rights under Intestates Act, 147 WIDOWEE right to administer to wife, 21 WIFE chattels, real, of, 56 WILFUL DEFAULT accounts 011 footing of, 210 executor must be charged with, 210 WILL discovery of, revocation of administration, 41 lost, administration granted until found, 35 married women, 22, 73 probate, evidence of, 38 of realty, 38 INDEX. 271 WINDING-UP petition for, before probate, 19 WORKMEN action by representative for death by accident, 66 WRIT indorsement should show representative character, 192 YEAR action for administration within, 136 allowed for payment of legacies, 136, 144 THE END. EADBUEV, AOXEW, & CO. LD., PRINTERS, LONDON AXI> TOKBUDGE TELEGRAPHIC ADDRESS- C pn f e found a very useful compendium of eon- ftitutionHl law. The more especially as it enables the student to obtain a completer view of the whole field than in obtainable from any ether book with which we are acquainted." /-yal Courts of Justice, one of the Editors of the ''Annual Practice." Second Edition. Crown 8vo. 1893. 4. " Indispensable to all commissioners." Solicitor J Journal. ORANGE RIVER. The Statute Law of the Orange River Colony. Translated. Royal 8vo. 1901. 21. 2r. OTTOMAN CIVIL LAW. Grigsby's Medjelle, or Ottoman Civil Law. Translated into English. By W. E. GRIOSBY, LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. 11. 1*. PARISH L AAV. Humphreys' Parish Councils. The Lawrekt- ing to Parish Councils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By GEOBOB HUMPHREYS, Esq., Barrister-at-Law. Royal 8vo. 1895. 10*. Steer's Parish Law. Being a Digest of the Law relating to the Civil and Ecclesiastical Government of Parishes and the Relief of the Poor. Sixth Edition. By W. H. MACNAKABA, Esq., Assistant Master of the Supreme Court, Registrar of the Court constituted under the Benefices Act, 1898. Demy 8vo. 1899. It " Of great service both to lawyers and to parochial officers." Solicitor? Jour. PARTNERSHIP. Pollock's Digest of the Law of Partnership. Eighth Edition. With an Appendix of Forms. By Sir FREDERICK POLLOCK, Bart., Barrister-at-Law, Author of "Principles of Con- tract," "The Law of Torts," &c. DemySvo. 1905. 10*. " Practitioners and students alike will welcome a new edition of this work." Law Journal. " Of the execution of the work we can speak in terms of the highest praiae. The language is simple, concise, and clear." l-nv> Magatine. "Praiseworthy in design, scholarly and complete in execution." Sat. Review. *.* All ttandard Law Workt are kept in Stock, in law calf and other bindinyt. 26 STEVENS AND SONS, LIMITED, PATENTS. Edmunds on Patents. The Law and Practice of Letters Patent for Inventions. By LEWIS EDMUNDS, Esq., K.C. Second Edition. By T. M. STEVENS, Esq., Barrister-at-Law. Roy. 8vo. 1897. 1Z- 12*. Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 1888, Consolidated with an Index. Second Edition. By LEWIS EDMUNDS, Esq., E.G., D.Sc., LL.B. Imp. 8vo. 1895. Net, 2*. 6d. Johnson's Patentees' Manual. A Treatise on the Law and Practice of Patents for Inventions. Sixth Edition. By JAMES JOHN- SON, Esq., Barrister-at-Law ; and J. HENRY JOHNSON, Solicitor and Patent Agent. Demy 8vo. 1890. 10s. 6rf. Johnson's Epitome of Patent Laws and Practice. Third Edition. Crown 8vo. 1900. Net, 2s. &d. Morris's Patents Conveyancing. Being a Collection of Precedents in Conveyancing in relation to Letters Patent for Inventions. With Dissertations and Copious Notes on the Law and Practice. By ROBEBT MORRIS, Esq., Barrister-at-Law. Royal 8vo. 1887. II. 5s. Thompson's Handbook of Patent Law of all Countries. By WM. P. THOMPSON. Thirteenth Edition. 12mo. 1905. Net, 2*. 6d. Thompson's Handbook of British Patent Law. Thirteenth Edition. 12mo. 1905. Net, 6d. PAWNBROKING. Attenborough's Law of Pawnbroking, with the Pawnbrokers Act, 1872, and the Factors Act, 1889, and Notesthe reo n . By CHAELES L. ATTENBOBOUGH, Esq. , Barrister- at-Law. Post 8vo. 1897. Net, 3s. PEERAGE LAW. Palmer's Peerage Law in England : A Practical Treatise for Lawyers and Laymen. With an Appendix of Peerage Charters and Letters Patent (in English). By FRANCIS BEAUFORT PALMER, Esq., Bencher of the Inner Temple, Author of " Company Precedents," &c. Royal 8vo. 1907. 12s. 6cl. PLEADING. Bullen and Leake's Precedents of Pleadings in Actions in the King's Bench Division of the High Court of Justice, with Notes, Sixth Edition. By CYRIL DODD, Esq., K.C., and T. WILLES CHITTY, Esq., Barrister-at-Law, a Master of the Supreme Court. Royal 8vo. 1905. II. 18s. " The standard work on modern pleading." Law Journal. Eustace's Practical Hints on Pleading. By ALEX. ANDERSON EUSTACE, Esq., Barrister-at-Law. Demy 8vo. 1907. 5s. " Especially useful to younar solicitors and students of both branches of the legal profession." Law 2'mies,~May 11, 1907. Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice. Sixth Edition. By W. BLAKE ODGEES, LL.D., K.C., Recorder of Plymouth, Author of "A Digest of the Law of Libel and Slander." Demy 8vo. 1906. 12s. 6rf. " The student or practitioner who desires instruction and practical guidance in our modern system of pleading cannot do better than possess himself of Mr. Odgers* book." Law Journal. POISONS. Reports of Trials for Murder by Poisoning. With Chemical Introductions and Notes. By G. LATHAM BROWNE, Esq., Barrister-at-Law, and C. G. STEWAET, Senior Assistant in the Labo- ratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12. 6d. ** All standard Law Works are kept in Stock, in law calf and other bindings. 119 A 120, CHANCERY LANE, LONDON, W.O. 27 POLICIES. Farrer. Fufc "Vendors and Purchasers." POWERS. Farwell on Powers. A Concise Treatise on Powers. Second Edition. By GKOEOB FABWELL, Esq., Q.C. (now a Lord Justice of Appeal), assisted by W. R. SHELDON, Esq., Barrister- at-Law. Royal 8vo. 1893. II. 6. PRINCIPAL AND AGENT.-Wright's Law of Principal and Agent. By E. BLACKWOOD WEIGHT, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1901. 18*. " Clearly arranged and clearly written." Late Times. " May with confidence be recommended to all legal practitioners as an accu- rate and handy text book on the subjects comprised in it." Solicitors' Journal. "An excellent book." Law Quarterly Review. PRIVY COUNCIL LAW. Wheeler's Privy Council Law: A Synopsis of all the Appeals decided by the Judicial Committee (includ- ing Indian Appeals) from 1876 to 1891. Together with a precis of the Cases from the Supreme Court of Canada. By GEOEOK WHEELKB, Esq., Barrister-at-Law, and of the Judicial Department of the Privy Council. Royal 8vo. 1893. II. lit. 6d. PRIZE CASES. Reports of Prize Cases determined in the High Court of Admiralty, before the Lords Commissioners of Appeals in Prize Causes, and before the Judicial Com- mittee of the Privy Council, from 1745 to 1859. Edited by E. S. ROSCOE, Esq., Barrister-at-Law and Admiralty Registrar. 2 Vols. Royal 8vo. 1905. Net, 21. 10*. " Mr. Eoscoe has evidently edited these volumes with much care, and every student of international law, here and elsewhere, will be grateful to him." The Times. "We gladly acknowledge the excellent judgment with which Mr. Roscoe has performed his task. The English Prize Cases will be a boon to the student of international law, and in timed of naval warfare to the practitioner." Law Journal. PROBATE. Nelson's Handbook on Probate Practice (Non- Contentious), (Ireland). By HOWAED A. NELSON, Esq., Barrister- at-Law. Demy 8vo. 1901. 12*. 6rf. Powles and Oakley on Probate. Fourth Edition. Part I. THE LAW. By L. D. POWLKS, Esq., Barrister-at-Law, District Probate Registrar for Norwich. Part II. THE PRACTICE. Contentious Practice. By W. M. F. WATEBTON, Esq., Barrister-at-Law, of the Probate Registry, Somerset House. Non-Contentious Practice. By E. LOVBLL MANSBBIDGE, Esq., of the Probate Registry, Somerset House. Demy 8vo. 1906. I/. 10*. " This is a practical book by practical men, and a very complete guide to the law and practice of probate." Solicitors' Journal. PROPERTY. See alto " Real Property." Raleigh's Outline of the Law of Property. DemySvo. 1890. 7*. 6rf. Strahan's General View of the Law of Property. Fourth Edition. By J. A. STEAHAN, assisted by J. SINCLAIE BAXTKB, Esqrs., Barris- ters-at-Law. Demy 8vo. 1905. 12*. 6rf. " The student will not easily find a better general view of the law of property than that which is contained in this book." Solicitor*' Journal. " We know of no better book for the class-room." Law Times. PUBLIC MEETINGS. Chambers' Handbook for Public Meetings. Second Edition. By GKOBOK F. CIIAKBKES, Esq., Barrister-at-Law. Demy 8vo. 1888. Net, 2*. 6d. *. All standard Law Works are kept in Stock, in late calf and other bindingt. 28 STEVENS AND SONS, LIMITED, QUARTER SESSIONS. See also " Criminal Law." Pritchard's Quarter Sessions. The Jurisdiction, Practice, and Procedure of the Quarter Sessions in Judicial Matters, Criminal, Civil, and Appellate. Second Edition. By JOSEPH B. MATTHEWS and V. GBAHAM MILWABD, Esqrs., Barristers-at-Law. Demy 8vo. 1904. Publiihed at II. Us. Gd. ; reduced to net, 15*. " A most useful and comprehensive guide to Quarter Sessions practice." Law Journal. RAILWAY RATES. Darlington's Railway Rates and the Carriage of Merchandise by Railway. ByH. R. DAEXJNGTON, Esq., Barrister-at-Law. Demy 8vo. 1893. II. 5s. Russell's Railway Rates and Charges Orders. The Law under the Railway Eates and Charges Orders Confirmation Acts, 1891 and 1892, and the Railway and Canal Traffic Act, 1894, with Explanatory Notes and Decisions. By HAEOLD RUSSELL, Esq., Barrister-at-Law. Royal 8vo. 1907. 10*. 6rf. RAILWAYS. Browne and Theobald's Law of Railway Com- panies. Being a Collection of the Acts and Orders relating to Railway Companies in Great Britain and Ireland, with Notes of all the Cases decided thereon. Third Edition. By J. H. BALFOUB BBOWNE, Esq., one of His Majesty's Counsel, and FBANX BALFOTTB BBOWNE, Esq., Barrister-at-Law. Royal 8vo. 1899. 21. '2s. " Contains in a very concise form the whole law of railways." The Times. " It is difficult to find in this work any subject in connection with railways which is not dealt with." Law Times. " Practitioners who require a comprehensive treatise on railway law will find it indispensable." Law Journal. Disney's Law of Carriage by Railway. By HENET W. DISNEY, Esq., Banister-at-Law. Demy 8vo. 1905. 7*. Qd. " Contains much useful information, and can be cordially recommended to the lawyer." Law Times. " Veiy interesting and useful." Solicitors' Journal. Powell's Relation of Property to Tube Railways. By MAUEICE POWELL, Esq., Barrister-at-Law. Demy 8vo. 1903. Net Is. 6d. RATES AND RATING. Castle's Law and Practice of Rating. Fourth Edition. By EDWAED JAMES CASTLB, Esq., one of His Majesty's Counsel, &c. Royal 8vo. 1903. II. 5*. " A compendious treatise, which has earned the goodwill of the Profession on account of its conciseness, its lucidity, and its accuracy." Law Times. Hamilton and Forbes' Digest of the Statutory Law relating to the Management and Rating of Collieries. For the u b e of Colliery Owners, Viewers and Inspectors. By H. B. HANS HAMILTON and UEQUHABT A. FOBBES, Esqrs., Barristers-at-Law. Demy 8vo. 1902. Xet, 17*. Grf. " An eminently practical work." Law Times. REAL PROPERTY. Carson's Real Property Statutes, com- prising, among others, the Statutes relating to Prescription, Limita- tion of Actions, Married Women' s Property, Payment of Debts out of Real Estate, Wills, Judgments, Conveyancing, Settled Land, Partition, Trustees. Being a TenthEdition of Shelford's Real Property Statutes. By T. H. CABSON, Esq., K.C., and H. B. BOMPAS, Esq., Barrister-at-Law. Royal 8vo. 1902. \l. 15*. " Absolutely indispensable to conveyancing and equity lawyers." De Villier's History of the Legislation concerning Real and Personal Property in England during the Reign of Queen Victoria. Crown 8vo. 1901. 3s. 6d. Digby's History of the Law of Real Property. Fifth Edition. Demy 8vo. 1897. 12*. 6d. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 4 120, CHANCERY LANK, LONDON, W.O. W REAL PROPERTY continued. Lightwood's Treatise on Possession of Land : with a chapter on the Real Property Limitation Acts, 1833 and 1874. By JOHN M. LiGirrwoOD, Ecq., Barristwr-at-Law. Den^y 8vo. 1894. 16*. Maclaurin's Nature and Evidence of Title to Realty. A His- torical Sketch. By RICHARD C. MACLiUBnr, ESQ., of Lincoln's Inn. Demy 8vo. 1901. 10*. 6rf. Shelford's Real Property Statutes. Fide " Carson." Smith's Real and Personal Property. A Compendium of the Law of Real and Personal Property, primarily connected with Con- veyancing. Designed as a Second Book for Students, and as a Digest of the most useful learning for Practitioners. Sixth Edition. By the AUTHOB and J. TauBrBAJt, LL.M., Barrister -at -Law. 2 vols. Demy 8vo. 1884. 2/. 2*. " A book which he (the student) may read over and over again with profit and pleasure." Law Times. Strahan. Vide "Property." REGISTERED LAND. Vide " Land Transfer." REGISTRATION. Rogers. Vide" Elections." Fox and Smith's Registration Cases. (18861895.) Royal 8vo. Calf, net, 21. 10*. Smith's (C. Lacey) Registration Cases. Vol. I. (18951905.) Royal 8vo. Calf, net, 2/. 14*. Smith's (C. Lacey) Registration Cases. Vol. II., Part I. (1906 1907.) Royal 8vo. Net, 5*. %* Parts sold separately. Prices on application. REPORTS. Vide "English Reports." REQUISITIONS ON TITLE. Dickins. Vide "Convey- itiicing." REVERSIONS. Farrer. Fkfe "Vendors and Purchasers." RIVERS POLLUTION. Haworth's Rivers Pollution. The Statute Law relating to Rivers Pollution, containing the Rivers Pollu- tion Prevention Act*, 1876 and 1893, together with the Special Acts in force in the West Riding of Yorkshire and the County of Lancaster, and Practical Forms. Second Edition. By CHARLES JOSEPH HAWOBTH, Solicitor, B.A. (Cantab.), LL.B. (London). Roy. 12mo. 1906. Net, 10*. 6rf. ROMAN LAW. Abdy and Walker's Institutes of Justinian, Translated, with Notes, by J. T. ABDY, LL.D., and the late BBTAN WALKBB, M.A., LL.D. Crown 8vo. 1876. 16*. Abdy and Walker's Commentaries of Gaius and Rules of Ulpian. With a Translation and Notes, by J. T. ABDY, LL.D., late Regius Professor of Laws in the University of Cambridge, and the late BBYAH WALXEB, M.A., LL.D. New Edition by BBYAN WALXKB. Crown 8vo. 1885. 16*. Barham's Students' Text-Book of Roman Law. By C. NICOLAS BABHAJC, Esq., Barrister- at- Law. Demy 12mo. 1903. Net, 2*. 6rf. " A collection of notes, clearly and simply expressed, upon the principal topics of Roman Law as they are utated in the Institutes of Gaiiu and Juntiiuan. Neatly arranged, and forma a complete outline of the subject." Law Xotet. Goodwin's XII. Tables. By FBBDBBIOK GOODWIN, LL.D. London. Royal 12mo. 1886. 3*. 64. Greene's Outlines of Roman Law. Consisting chiefly of an Analysis and Summary of the Institutes. For the use of Students. By T. WHTTOOXBB QBKXNK, Barrister-at-Law. Fourth Edition. Foolscap 8vo. 1884. 7*. M. *^ All ttandard Law Works are kept in Stock, in law calf and other bindingt. 30 STEVENS AND SONS, LIMITED, ROMAN LAW continued. Grueber's Lex Aquilia. The Roman Law of Damage to Property: teing a Commentary on the Title of the Digest " Ad Legem Aqui- liam" (ix. 2). With an Introduction to the Study of the Corpus Juris Civilis. By EBWIN GEUEBEB, Dr. Jur.,M.A. 8vo. 1886. 10s. 6d. Holland's Institutes of Justinian. Second Edition. Extra fcap. 8vo. 1881. 5s. Holland and ShadwelPs Select Titles from the Digest of Jus- tinian. Demy 8vo. 1881. 14*. Monro's Digest of J ustinian. Translated. By C. H. MONEO, M.A. Vol. I. Eoyal 8vo. 1904. Net, 12s. Monro's Digest IX. 2. Lex Aquilia. Translated, with Notes, by C. H. MONEO, M.A. Crown 8vo. 1898. 5s. Monro's Digest XIX. 2, Locati Conduct!. Translated, with Notes, by C. H. MONEO, M.A. Crown 8vo. 1891. 5*. Monro's Digest XLVII. 2, De Furtis. Translated, with Notes, by C. H. MONBO, M.A. Crown 8vo. 1893. 5*. Monro's Digest XLI. 1, De Adquirendo Rerum Dominio. Trans- lated, with Notes, by C. H. MONEO, M.A. Crown 8vo. 1900. 5*. Moyle's Imperatoris lustiniani Institutionum Libri Quattuor. Fourth Edition. Demy 8vo. 1903. 16s. Moyle's Institutes of Justinian. Translated into English. Fourth Edition. Demy 8vo. 1906. 6s. Poste's Elements of Roman Law. By Gaius. With a Translation and Commentary. Fourth Edition. Demy 8vo. 1904. Net, 16s. Roby's Introduction to the Study of Justinian's Digest, con- taining an account of its composition and of the Jurists used or referred to therein. By H. J. ROBY, M.A. Demy 8vo. 1886. 9s. Roby's Justinian's Digest. Lib. VII., Tit. I. De Usufructu, with a Legal and Philological Commentary. By H. J. ROBT, M.A. Demy 8vo. 1884. 9*. Or the Two Parts complete in One Volume. Demy 8vo. 18s. Roby's Roman Private Law in the Times of Cicero and of the Antonines. By H.J. ROSY, M.A. 2vols. DemySvo. 1902. Jfet,30s. Sohm's Institutes of Roman Law. Second Edition. Demy 8vo. 1901. 18s. Walker's Selected Titles from Justinian's Digest. Annotated by the late BBYAN WALKEB, M.A., LL.D. Part I. Mandati vel Contra. Digest xvn. i. Crown 8vo. 1879. 5s. Part III. De Condictionibus. Digest xn. 1 and 4 7, and Digest xm. 13. Crown 8vo. 1881. 6s. Walker's Fragments of the Perpetual Edict of Salvius Julianus, Collected and annotated by BBYAN WALXEB, M.A., LL.D. Crown 8vo. 1877. 6s. Whewell's Grotius de Jure Belli et Pacis, with the Notes of Bar- beyrac and others ; accompanied by an abridged Translation of the Text, by W. WHEWELL, D.D. 3 vols. Demy 8vo. 1853. 12*. \* All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 31 RULING CASES. Campbell's Ruling Cases. Arranged, An- notated, and Edited by ROBEBT CAMPBELL, of Lincoln's Inn, Esq., Barrister- at- Law, Advocate of the Scotch Bar, assisted by other Members of the Bar. With American Notes by IBTOTQ BROWNE, formerly Editor of the American Reports, and the Hon. LEONARD A. JONBS, A.B., LL.B. (Harv.). Royal 8vo. 1894-1902. Half vellum, gilt top. Complete in XXVI. Volumes. Price for the set, net, 25/. *** The Volumes sold separately, net, each II. 5. I. Abandonment Action. II. Action Amendment. III. Ancient Light Banker. IV. Bankruptcy Bill of Lading. Y. Bill of Sale Conflict of Laws. VI. -Contract. VII. Conversion Counsel. VIII. -Criminal Law Deed. IX. Defamation Dramatic and Musical Copyright. X. Easement Estate. XI. Estoppel Execution. XII. Executor Indemnity. XIII. Infant Insurance. XIV. Insurance Interpretation. XV. Judge Landlord and Tenant. XVI. Larceny Mandate. XVII.- Manorial Right-Mistake. XVIII. Mortgage Negligen.ce. XIX. Negligence Partnership. XX. Patent. XXI. Payment Purchase for Value without Notice. XXII. Quo Warranto Release. XXIII.-Relief Sea. XXIV. Search Warrant Telegraph. XXV. Tenant -Wills. XXVI. Table of Cases ; Index. THIS SERIES PRESENTS- The best English Decisions (in full), From the earlier Reports to the present time, Grouped under topics alphabetically arranged. UNDER EACH TOPIC IS GUVEN'- A " Rule " of law deduced from the cases ; The early or " leading " case (in full) ; English notes abstracting collateral cases ; American notes. THE OBJECT OF THE SERIES IS- To state legal principles clearly, Through cases of accepted authority, With sufficient annotation To aid the application of these principles to any given state of facts. EXTRACTS FEOM PBESS NOTICES. "A Cyclopaedia of law .... most ably executed, learned, accurate, clear, concise ; but perhaps its chief merit is that it impresses on u* what the practising English lawyer is too apt to forget that English law really is a body of prin- ciples." The British Review. " One of the most ambitious, and ought to be, when it is complete, one of the most generally useful legal works which the present century has produced." Literature. " A perfect storehouse of the principles established and illustrated by our case law and that of the United States." Law Times. " The general scheme appears to be excellent, and its execution reflects the greatest credit on everybody concerned. It may, indeed, be said to constitute, for the present, the high-water mark of the science of book-making." Sat. Rev. " A work of unusual value and interest. . . . Each leading case or group of cases is preceded by a statement in bold type of the rule which they are quoted as establishing. The work is happy in conception, and this first volume shows that it will be adequately and successfully carried out." Solicitors' Journal. "The English Ruling Cases seem generally to have been well and carefully chosen, and a great amount of work has been expended. . . . Great accuracy and care are shown in the preparation of the Notes." IMW Quarterly Review. " The Series has been maintained at a high level of excellence." The Times. %* A U standard Law Workt art kept in Stock, in late calf and other bindings. 32 STEVENS AND SONS, LIMITED, SALES. Blackburn on Sales. A Treatise on the Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares, and Merchandise. By Lord BLACKBUBN. 2nd Edit. By J. C. GBAHAM, Esq., Barrister-at-Law. Royal 8vo. 1885. 11. Is. SALVAGE. Kennedy's Treatise on the Law of Civil Salvage. By The Right Hon. Lord Justice KENNEDY, a Lord Justice of Appeal. Second Edition. By A. R. KENNEDY, ESQ., Barrister-at- Law. Royal 8vo. 1907. 15s - "The -whole subject is explained in the present work in a manner at once lucid and interesting." Solicitors' Journal, June 8, 1907. SHERIFF LAW. Mather's Compendium of Sheriff and Exe- cution Law. Second Edition. By PHILIP E. MATHEE, Solicitor and Notary, formerly Under-Sheriff of Newcastle-on-Tyne. Royal 8vo. 1903. V- 10*. ""We think that this book will be of very great assistance to any persons who may fill the positions of high sheriff and under-sheriff from this time forth. The whole of the legal profession will derive great advantage from having this volume to consult." Law Times, " The subject is one of great practical importance, and this edition will be most valuable in the office of sheriffs and solicitors." Law Journal. SHIPPING. Carver. Vide " Carriers." Marsden's Digest of Cases relating to Shipping, Admiralty, and Insurance Law, down to the end of T897. By REGINALD G. MAESDEN, Esq., Barrister-at-Law, Author of "The Law of Collisions at Sea." Royal 8vo. 1899. 11. 10*. Pulling's Shipping Code; being the Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60). With Introduction, Notes, Tables, Rules, Orders, Forms, and a Full Index. By ALEXANDEE PULLING, Esq., Barrister-at-Law. Royal 8vo. 1894. Net, 7s. Gd. Temperley's Merchant Shipping Acts. By ROBEET TEMPEELEY, Esq., Barrister-at-Law. Second Elition, comprising the Merchant Shipping Acts, 1894 to 1906, with Notes, and an Appendix of Orders in Council, Rules and Regulalions, Official Forms, &c. By the AUTHOB, now a Solicitor of the Supreme Court, and HUBEET STUART MOOEK, Esq., Barrister-at-Law, assit-ted by ALFEED BUCKNILL, Esq., Barrister-at-Law. Royal 8vo. 1907. (Nearly ready.} SLANDER. Odgers. Fufc "Libel and Slander." SOLICITORS. Cordery's Law relating to Solicitors of the Supreme Court of Judicature. With an Appendix of Statutes and Rules, the Colonial Attornies Relief Acts, and Notes on Appoint- ments open to Solicitors, and the Right to Admission to the Colonies, to which is added an Appendix of Precedents. Third Edition. By A. COEDEEY, Esq., Barrister-at-Law. Demy 8vo. 1899. II. 1*. " The leading authority on the law relating to solicitors." Law Journal. "A complete compendium of the law." Law Times. SPECIFIC PERFORMANCE. Fry's Treatise on the Specific Performance of Contracts. By the Right Hon. Sir EDWABD FEY. Fourth Edition. By W. D. RAWLINS, Esq., K.C. Royal 8vo. 1903. 11. 16s. " The leading authority on its subject." Law Journal. "Mr. Bawlins has acquitted himself of his responsible task with signal ability." Law Times. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 4 120, CHANCERY LANE, LONDON, W.C. 33 STAMP LAWS. High mo re's Stamp Laws. Being the Stamp Acts of 1891 : -with the Acts amending and extending the same, including the Finance Act, 1902, together with other Acts imposing or relating to Stamp Duties, and Notes of Decided Cases ; also an Introduction, and an Appendix containing Tables showing the com- parison with the antecedent Law. Second Edition. By NATHANIEL JOSEPH HiomtOBK, Assistant-Solicitor of the Inland Revenue. Demy 8vo. 1902. 10*. 6d. " The recognized work on the subject." Law Quarterly Review. "This edition, like the former one, will be found of the greatest use by solicitors, officers of companies, and men of business." Law Journal. " A very comprehensive volume, fulfilling every requirement." Juttice of the Peace. " Mr. Highmore's ' Stamp Laws' leaves nothing undone." The Civilian. STATUTES, and vide " Acts of Parliament." Chitty's Statutes. The Statutes of Practical Utility, from the earliest times to 1894, with Supplemental Volume to 1901 inclusive. Arranged in Alphabetical and Chronological Order; with Notes and Indexes. Fifth Edition. By J. M. LELT, Esq., Barrister-at-Law. Royal 8vo. Complete with Index. In 14 Volumes. 1894-1902. 15/. 15*. Supplementary Volume, 1895 to 1901. Consolidated with Index. May be had separately. 21. 2*. "To those who already possess 'Chitty's Statutes' this new volume is indispensable." Law Xotes. Annual Supplements. Separately: 1895, 6*. 1896,10*. 1897,5*. 1898, Is. &d. 1899, It. 6d. 1900, 7*. 6rf. 1901, 7*. 6rf. 1902, 7*. 6rf. 1903, 7. &d. 1904, It. 6d. 1905, Is. 6d. 1906, 7*. 6d. "It is a book which no public library should be without." Spectator. "A work of permanent value to the prac tiling lawyer." Solicitor? Journal. " Indispensable in the library of every lawyer." Saturday Review. "To all concerned with the laws of England, Chitty's Statutes of Practical Utility are of essential importance, whilst to the practising lawyer they are an absolute necessity." Law Time*. "The lawyer's Bible is the 'Statutes of Practical Utility ' that they are his working tools, even more than accredited text-books or 'authorised reports.' More than one judge has been heard to say that with the ' Statutes of Practical Utility ' at bis elbow on the bench he was apprehensive of no difficulties which might arise." The Times. STATUTE LAW. Wilberforce on Statute Law. The Principle* which govern the Construction and Operation of Statutes. By E. WILBEBFOBCB, Esq., a Master of the Supreme Court. 1881. 18*. % Att standard Law Works are kept in Stock, w* l*u> calf and otktr bindings. 3t STEVENS AND SONS, LIMITED, STOCK EXCHANGE. Schwabe and Branson's Treatise on the Laws of the Stock Exchange. By WALTEE S. SCHWABE and G. A. H. BEANSOX, Esqrs., Barristers-at-Law. Demy Svo. 1905. 12*. Gd. "This book gives a clear and comprehensive account of the constitution of the London Stock Exchange and of the nature of Stock Exchange transactions, as well as of the legal rules applicable in respect thereof ."Law Quarterly Review. "A clear and practical account of 1he method in which the business of the Stock Exchange is conducted, and of the law relating thereto." Law Times. " The best guide we know to the nature of Stock Exchange transactions." TJie Spectator, "That the treatise will be acceptable to lawyers and laymen alike we have no doubt. "We have satisfied ourselves that the legal portion is a sound, and in all respects satisfactory, piece of work." Law Journal. SUCCESSION. Holdsworth and Vickers 1 Law of Succes- sion, Testamentary and Intestate. Demy Svo. 1899. 10s. 6d. SUMMARY CONVICTIONS. Paley's Law and Practice of Summary Convictions under the Summary Jurisdiction Acts, 1848 1899; including Proceedings Preliminary and Subse- quent to Convictions, and the Responsibility of Convicting Magistrates and their Officers, with the Summary Jurisdic- tion Rules, 1886, and Forms. Eighth Edition. By W. H. MACNAMABA, Esq., a Master of the Supreme Court, and RALPH NEVILLE, Esq., Barrister-at-Law. Demy Svo. 1904. 11. 5s. TAXPAYERS' GUIDES. Vide "House," "Income," and "Land Tax." THEATRES AND MUSIC HALLS. -Geary's Law of Theatres and Music Halls, including Contracts and Precedents of Contracts. By W. N. M. GEAET, J.P. With Historical Introduc- tion. By JAMES WILLIAMS, Esq., Barrister-at-Law. Svo. 1885. 5*. TITLE. Jackson and Gosset. Vide " Investigation of Title." TORTS. Addison on Torts. A Treatise on the Law of Torts ; or Wrongs and their Remedies. Eighth Edition. By WILLIAM EDWABD GOBDON, Esq., and WALTEE HUSSEY GBIFFITH, Esq., Barristers-at- Law. Royal Svo. 1906. ll. 18*. "As a practical guide to the statutory and case Jaw of torts the presett edition will be found very reliable and complete." Solicitors' Journal. " ' Addison on Torts ' is essf nt'ally the y ractitioner's text-book. The learned fdit r rs hate done their work exceeding y welt, and the eighth edition of 'Addison' will no doubt enjoy the favour of the legal profession in as high a degree as any of its predecessors." Law Journal. "The eighth edition is the mcst important that has been if sued of late yearc, mainly because it supplies a watt that has been widely felt in regard to negli- gence and illegal distress. Chapter I. has been entirely recast, and numerous changes will Le found throughout tbe tfxt. It is but natural that this edition should be larger than i s predecessors, but this increase is fully justified in every ^iay." Law Times. Bigelow's Law of Torts. By MELVILLB M. BIQBLOW, Ph.D. Harvard. Second Edition. Demy Svo. 1903. 12*. 6rf. Kenny's Selection of Cases Illustrative of the English Law of Torts. By C. S. KENNY, LL.D., Barrister-at-Law. Demy Svo. 1904. Net, 12s. Qd. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 4 120, CHANCERY LANE, LONDON, W.C. 35 TO RTS continued. Pollock's Law of Torts i a Treatise on the Principles of Obligation* arising from Civil Wrongs in the Common Law. Seventh Edition. ,By Sir FBEDEBICK POLLOCK, Bart., Barrister-at-Law. Author of "Principles of Contract," " A Digest of the Law of Partnership," &c. Demy 8vo. 1904. II. 5. " Concise, logically arranged, and accurate." Law Time*. " Incomparably the beet work that baa been written on the subject." Literature. "A book which is well worthy to stand beside the companion volume on 4 Contracts.' Unlike so many law-books, especially on this subject, it is no mere digest of cases, but bears the impress of the mind of the writer from beginning to end." Late Journal. Radcliffe and Miles' Cases Illustrating the Principles of the Law of Torts. By FBAXCIS R. Y. RADCLIFFE, Esq., K.C., and J.C. MILES, Esq., Barrister-at-Law. DemySvo. 1904. Net, 12*. 6d. TRADE MARKS. Sebastian on the Law of Trade Marks and their Registration, and matters connected therewith, including a chapter on Goodwill ; the Patents, Designs and Trade Marks Acts, 1883-8, and the Trade Marks Rules and Instructions thereunder; with Forms and Precedents; the Merchandize Marks Acts, 1887-94, and other Statutory Enactments ; the United States Statutes, 1870-82, and the Rules and Forms thereunder ; and the Treaty with the United States, 1877. By LEWIS BOYD SEBASTIAN, Esq., Barrister-at-Law. Fourth Edition. By the Author and HAEET BAIED HEMMTNO, Esq., Banister-at-Law. Royal 8vo. 1899. II. 10*. " Stands alone as an authority upon the law of trade-marks and their regis- tration." Lav> Journal. " It is rarely we come across a law book which embodies the results of yean of careful investigation and practical experience in a branch of law, or that can be unhesitatingly appealed to as a standard authority. This is what can be said of Mr. Sebastian's book." Solicitors' Journal. Sebastian's Law of Trade Mark Registration under the Trade Marks Act, 1905. By LEWIS BOTD SEBASTIAN, Esq., Barrister- at-Law. Royal 8vo. 1906. It. Gd. "Mr. Sebastian has written a brief, though instructive, Introduction to the Act of 1905, which has consolidated and amended the law relating to the Regis- tration of Trade Marks, and his notes are clear and adequate." JM\O Journal, Sept. 8, H*X5. Sebastian's Digest of Cases of Trade Mark, Trade Name, Trade Secret, Goodwill, &c., decided in the Courts of the United Kingdom, India, the Colonies, and the United States of America. By LEWIS BOYD SEBASTIAN, Esq., Barrister-at-Law. 8vo. 1879. ll.lt. " Will be of very great value to all practitioners who have to advise on matters connected with trade marks." Solicitor*' Journal. TRADE UNIONS. Assinder's Legal Position of Trade Unions. By G. F. ASSIXDEB, Esq., Barrister-at-Law. Demy 12mo. 1905. Net, 2*. 6d. " In this little work Mr. Ax-tinder has with great clearness and ability sketched the legal position of trade unions." IMV> Journal. Draper's Trade Unions and the Law. By "WABWIOC H. DBATEB, Esq., Barrister-at-Law. Demy 8vo. 1906. JVrf, 6rf. Pennant's Trade Unions and the Law. By D. F. PmnrAirr, Esq., Barrister-at-Law. Royal 12mo. 1905. 5*. * 9 * All standard Law Works are kept in Stock, in laic calf and other binding*. 36 STEVENS AND SONS, LIMITED, TRAMWAYS. Robertson's Law of Tramways and Light Rail- ways in Great Britain (3rd Edition of Button's " Tramway Acts of the United Kingdom ") : comprising the Statutes relating to Tram- ways and Light Railways in England and Scotland, with full Notes ; the Tramways and Light Railways Rules ; the Regulations, By-Laws and Memoranda issued by the Board of Trade ; the Standing Orders of Parliament; the General Orders under the Private Legislation Procedure (Scotland) Act, 1899 ; and Disser- tations on Locus Standi and Rating. By GEOEGE S. ROBEETSON, M.A., Esq., Barrister-at-Law. Royal 8vo. 1903. II. 5*. TRANSVAAL. The Statute Law of the Transvaal. Translated. Royal 8vo. 1901. 21. 2*. Transvaal Proclamations, 19001902. Revised. 1904. 8vo. II. 5s. TRUSTEES (Corporate). Allen's Law of Corporate Exe- cutors and Trustees. By EENEST KING ALLEN, Esq., Barrister- at-Law. Demy 8vo. 1906. 6s. TRUSTS AND TRUSTEES. Ellis' Trustee Acts, including a Guide for Trustees to Investments. By ABTHTJB LEE ELLIS, Esq., Barrister-at-Law. Sixth Edition. By L. W. BYENE, Esq. , Barrister- at-Law. Roy. 12mo. 1903. 6*. Godefroi's Law Relating to Trusts and Trustees. By the late HENBY GODEFBOI, of Lincoln's Inn, Esq., Barrister-at-Law. Third Edition. By WHITMOEE L. RICHAEDS and JAMES I. STIELING, Esqrs., Barristers-at-Law. Royal 8vo. 1907. 11.18s. " There is the Fame scrupulous attention to every detail of trustees* rights and duties, the fame critical analysis of all the nuances of trusts and other equitable interests, the same careful comparison of all the decisionfc-sometimes apparently conflicting on the different branches of this complicated subject, which made pievious editions so useful even to the expert." Law Journal, June 11, 1907. VENDORS AND PURCHASERS. Dart's Vendors and Pu rchasers. A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. By the late J. HENEY DAET, Esq. Seventh Edition. By BENJAMIN L. CHEEEY, one of the Editors of " Prideaux's Precedents in Conveyancing," G. E. TYEEELL, AETIIUB DicKSONand ISAAC MAESHALL, assisted by L. H. ELPHINSTONE, Esqrs., Barristers-at-Law. 2 vole. Royal 8vo. 1905. 3/. 15,. " There are traces throughout the book of an unstinted expenditure of skill and labour in the preparation of this edition which will maintain the position of the book as the foremost authority." Law Quarterly Review. " The work remains a great conveyancing classic." Law Journal. " To the young and to the staid practitioner having any pretensions to con- veyancing work, we unhesitatingly say, Procure a copy at once." Law Students' Journnl. " This work is a classic, and quite beyond our criticism. All we can do is to let our readers know that the late Mr. Dart's work is once more brought up to < 3 ate, and to advise them to put a copy on their shelves without delay." Law; Notes. Farrer's Precedents of Conditions of Sale of Real Estate, Re- versions, Policies, &c.; with exhaustive Footnotes, Introductory Chapters, and Appendices. By EBEDEBICK EDWABD FABBEB, Esq., Barrister-at-Law. Royal 8vo. 1902. 16s. " Mr. Farrer has written a rare thing a new book which will be of real value in a conveyancer's library." Law Journal. " The notes are essentially practical." Law Times. * * All standard Law Work* are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 37 VENDORS AND PURCHASERS -continued. Turner's Duties of Solicitor to Client as to Sales, Purchases, and Mortgages of Land. Second Edition. By W. L. HACOX, Eaq., Barrister-at-Law. Demy 8vo. 1893. 10*. 6d. Webster's Law Relating to Particulars and Conditions of Sale on a Sale of Land. Third Edition. By W. F. WKBSTKB, Esq., Barrister-at-Law. Roy. 8vo. 190". II. 5t. " Conveyancers will assuredly find thw volume of much value." Law Timet, April K, 1907. WAR, DECLARATION OF. Owen's Declaration of War. A Survey of the Position of Belligerents and Neutrals, with relative considerations of Shipping and Marine Insurance during War. By DOUGLAS OWEN, Esq., Barrister-at-Law. Demy 8vo. 1889. I/. 1. Owen's Maritime Warfare and Merchant Shipping. A Summary of the Rights of Capture at Sea. By DOUGLAS OWKW, Esq., Bar- rister-at-Law. Demy 8vo. 1898. Net, 2t. WATER. Bartley's Metropolis Water Act, 1902. By DOUGLAS C. BAKTLEY, Esq., Barrister-at-Law, Author of "Adulteration of Food." Royal 12mo. 1903. 6. WILLS. Theobald's Concise Treatise on the Law of Wills. Sixth Edition. By H. S. THSOBALD, Esq., one of His Majesty's Counsel. Royal 8vo. 1905. I/. 15. 'Throughout tb book we find paragraphs rewritten and alterations and corrections made, and we congratulate! the author on the present as the best and must trustworthy issue of his work which has yet appeared." Solicitor!? Journal. " Comprehensive though easy to use, and we advise all conveyancers to get a copy of it without loss of time." Late Journal. " Of great ability and value. It bears on every page trace* of care and sound judgment." Solicitor? Journal. Weaver's Precedents of Wills. A Collection of Concise Precedents of Wills, with Introduction and Notes. Second Edition. By CBABLBS WEAVKB, B.A., Solicitor. Demy 8vo. 1904. 5*. " The notes, like the forms, are clear and, so far as we have tested them, aocu- rite, and the book cannot fail to be of service to the young practitioner." Law Times. WINDING UP. -Palmer's. Vide "Company Law." WORKMEN'S COMPENSATION. Vide " Employers' Liability." Knowles' Law Relating to Compensation for Injuries to Work- men. Being an Exposition of the Workmen's Compensation Act, 1906, and of the Case Law relevant thereto. Second Edition, including the Workmen's Compennation Rules and Forms, 1907, annotated, together with all the Treasury Regulations and Orders made under the Act by the Home Office, Treasury, and Chief Registrar of Friendly Societies. By C. M. KNOWLES, Esq., Barrister-at-Law. Demy 8vo. 1907. A'tt, 8*. " There in an excellent introduction, and the various sections of the Act are fully annoted. The book is a timely on, and should be appreciated by both btanches of the legal profession." Lam Timet. " Mr. Knowles has produced an able commentary on the Act." late Journal. "The subject is treated in a nutisfactoiy way." Solicitor^ Journal. Robertson and Glegg's Digest of Cases under the Workmen's Compensation Acts. Royal 8vo. 1902. Net, 10*. WRONGS. Addison. Bigelow, Kenny, Pollock, Radcliffe and Miles. nrf"Torta." All ftandard Law Work* are kept in Stock, in law calf and other binding*. STEVENS AND SONS, LD., 1194 120, CHANCERY LANE, LONDON. THE ENGLISH REPORTS WITHIN THE REACH OF ALL. Complete RE-ISSUE of ALL THE DECISIONS prior to 1866 in about 150 volumes. objects of this great scheme of complete re-issue of all the - English Eeports up to the commencement of the Law Eeports in 1866 are now well known; the House of Lords Series in 11 Volumes, the Privy Council Series in 9 Volumes, the Chancery Series in 27 Volumes, the Bolls Court Series in 8 volumes, and the Vice-Chancellors Series in 16 Volumes, are now ready; and the King's Bench and Queen's Bench is now in course of publication. The Cases are noted with references to later decisions in which a particular case may have been overruled, or distinguished, and a reference to the titles of the digests in which similar cases will be found. Consultative Committee : The Eight Hon. THE EARL OF HALSBTJKY ; The Eight Hon. LORD ALVERSTONE, G. C.M. G. , Lord Chief Justiceof England ; The Eight Hon. LORD COLLINS, a Lord of Appeal in Ordinary ; Sir E. B. FINLAY, K.C. If^^g^ NOW ISSUED. HOUSE OF LORDS (1694 to 1866), complete in 11 vols. royal 8vo. Price net, half bound, 22. PRIVY COUNCIL (including Indian Appeals) (1809 to 1872), complete in 9 vols. Price net, half bound, 13 : 10s. CHANCERY (including Collateral Reports) (1557 to 1866), complete in 27 vols. Price net, half bound, 40 : 10s. ROLLS COURT (1829 to 1866), complete in 8 vols. Price net, half bound, 12. VICE-CHANCELLORS (1815 to 1865), complete in 16 vols. Price net, half bound, 24. H^=^ NOW PUBLISHING. KING'S BENCH and QUEEN'S BENCH (1378 to 1865), including Collateral Reports, complete in about 40 vols. Price per volume net, half bound, 80s. The Volumes are not sold separately. Full Prospectus sent on application to STEVENS & SONS, Ld,, 119 & 120, Chancery Lane, London. By Subscribing to Series A, you will save at least 1 : 5s. NINETEENTH YEAR OF SUBSCRIPTION. THE "LAWYER'S ANNUAL LIBRARY." PRACTICE CASES STA TUTES. ANNUAL PREPAID SUBSCRIPTIONS. Series A, comprising Nos. 1, 2, 3, 4 and 5 . 2 Ss., or carriage free, 2 IOS. ., B, Nos. 1, 2, 3 and 4 1 IBs., ditto 2 Os. C, Nos. 3, 4 and 5 1 1 5s., ditto 1 17s. Extra for India-paper Editions: 7s. for Series A; 3s. 6d. for Series B or C. Subscribers to the various Series will obtain the following Standard Works, delivered on the day of publication : 1. THE ANNUAL PRACTICE. By THOMAS SNOW, Barrister-at-Law; CHARLES BURNKY, a Master of the Supreme Court; and F. A. STRINGER, of the Central Office, Royal Courts of Justice. Price 25s. net. India- Paper Edition, 3s. 6d. extra. 2. THE ABC GUIDE TO THE PRACTICE OF THE SUPREME COURT. By F. A. STRINGER, one of the Editors of the "Annual Practice." Price 5s. net. 3. THE ANNUAL & QUARTERLY DIGEST of ALL the REPORTED DECISIONS in ALL the COURTS. By JOHN MEWS, Barrister-at-Law. (Issued in Three Quarterly, cumulative parts, and complete in 1 vol. royal 800., cloth.} Price 17s. net. 4. The ANNUAL STATUTES of PRACTICAL UTILITY. Alphabetically arranged, with Notes, &c., by J. M. LELY, Bar- rister-at-Law, Editor of Chitty's Statutes, &c. Royal 8vo., cloth. Price about 7s. 6d. (Published after the close of the Session."] 5. THE ANNUAL COUNTY COURTS PRACTICE. By His Honour Judge SMYLY, and W. J. BROOKS, Barrister- at-Law. Price 25s. India-Paper Edition, 3s. 6d. extra. STEVENS & SONS, Ltd,, 119 & 120, CHANCERY LANE, LONDON, Seal's Cardinal Rules of Legal Interpretation. Second Edition. Collected and Arranged by ED-WAED BEAL, Esq., Barrister-at-Law. (In preparation.) Beddoes' Concise Treatise on the Law of Mortgage. Second Edit. By W. F. BEDDOES, Esq., Barrister-at-Law. (In preparation.) Surge's Colonial Law. Commentaries on Colonial and Foreign Laws generally and in their Conflict with' each other. A new Edition. By A. WOOD RENTON, Esq., Puisne Judge, Ceylon, and G. G. PHILLIMOEE, Esq., Barrister-at-Law. In 5 vols. Royal 8vo. ( Vol. II. in the press. ) %* Full prospectus sent on application. Dicey's Digest of the Law of England with reference to the Conflict of Laws. Second Edition. By A. V. DICEY, Esq., K.C., B.C.L. (In the press.) Digest of Cases, Overruled, Approved, or otherwise specially considered in the English Courts. With extracts from the Judgments. By W. A. G. WOODS, LL.B., and J. RITCHIE, M.A., Esqrs., Barristers- at-Law. (In the press.) English Reports. A complete Re-issue of all the Decisions prior to 1866 in about 150 Volumes. Sixth Series. King's Bench and Queen's Bench. (Now publishing.) %* Full prospectus on application. Lush's Husband and Wife. Third Edition. By W. HUSSEY GEIFFITH, Esq., Barrister-at-Law. (In preparation.) Macdonell's Law of Master and Servant. Second Edition. By Sir JOHN MACDONELL, LL.D., C.B., a Master of the Supreme Court, and EDWAED A. MITCHELL INNES, Esq., Barrister-at Law. (In preparation.) Macnamara's Digest of the Law of Carriers of Goods and Pas- sengers by Land and Internal Navigation. Second Edition. By WALTEE HENEY MACNAMARA, Esq., a Master of the Supreme Court, Registrar to the Railway and Canal Commission, and W. A. ROBEETSON, Esq., Barrister-at-Law. (In preparation.) Palmer's Company Precedents. Part III. DEBENTURES AND DEBEN- TUEE STOCK. Tenth Edition. By FEANCIS BEAUFOET PALMER, Esq., Barrister-at-Law. (In preparation.) Pollo.ck's Law of Torts: a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Eighth Edition. By Sir FREDERICK POLLOCK, Bart., Barrister-at-Law. Author of 'Principles of Contract," &c. (In the press.) Robinson's Law relating to Income Tax. Second Edition. By ARTHUR ROBINSON, Esq., Barrister-at-Law. (In the press.) Talbot and Fort's Index of Cases Judicially noticed, 1865 to 1905. Second Edition. By M. R. MEHTA, Esq., Barrister-at- Law. (In the press.) Temperley's Merchant Shipping Acts, 1894 to 1906. Second Edition. By ROBEET TEMPERLEY, Esq., Solicitor, HUBERT STUART MOOEE, Esq., Banister- at-Law, and ALFRED BUCKNILL, Esq., Barrister-at-Law. (Nearly ready.) Wang's German Civil Code. Translated and annotated with an His- torical Introduction and Appendices. By CHUNG Htn WANG, D.C.L., Esq. (In the press.) Williams' Law relating to Legal Representatives: Real and Per- sonal. Second Edition. By SYDNEY E. WILLIAMS, Esq., Barrister- at-Law. (In preparation .) Woodfall's Law of Landlord and Tenant. Eighteenth Edition. By W. A. AGQS, Esq., Barrister-at-Law. (In the press.) AND SONS, LD., 119 & 120, CHANCERY LANE, LONDON. STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, LONDON. Palmer's Company Precedents. For use in relation to Companies subject to the Companies Acts. PART!.: GENERA! FORMS. Ninth Edition. By F. B. PALMER, Barrister-at-Law, assisted by the Hon. C. MACNAGHTEN, K.C.,and FRANK EVANS, Barrister-at- Law. Royal 8vo. 1906. Price 36s. cloth. PAET II. : wrNDrNG-TTP FORMS AND PRACTICE. Ninth Edition. By F. B. PALMER, assisted by FRANK EVAN'S, Barristers-at-Law. Royal 8vo. 1904. Price 32s. cloth. Palmer's Company Law. A Practical Handbook for Lawyers and Business Men. With an Appendix containing the Companies Acts, 1862 to 1900, and Rules. Fifth Edition. By FRANCIS BEAUFORT PALMER, Barrister-at-Law. Royal 8vo. 1905. Price 12s. 6d. cloth. Palmer's Peerage Law in England : A Practical Treatise for Lawyers and Laymen. With an Appendix of Peerage Charters and Letters Patent (in English). By FRANCIS BEAUFORT PALMER, Bencher of the Inner Temple, Authorof " Company Precedents," &c. JRoyal8ro. 1907. Price 12*. 6d. cloth. Russell's Treatise on the Power and Duty of an Arbi- trator, and the Law of Submissions and Awards. Ninth Edition. By EDWARD POLLOCK, an Official Referee of the Supreme Court, and H. W. POLLOCK, Barrister-at-Law. Royal 8vo. 1906. Price II. IOs. cloth. Williams' Law of Executors and Administrators. Tenth Edition. By the RIGHT HON. SIR ROLAND VAUGHAN WILLIAMS, a Lord Justice of Appeal, and ARTHUR ROBERT INGPEN, K.C. Two Vols. Royal 8vo. 1905. Price 4l.*cloth. Powles and Oakley on Probate. Fourth Edition. Revised, Re-arranged, and in great part Re-written, with a full collection of Forms. Part I.: THE LAW. By L. D. POWLES, Barrister-at-Law, District Probate Registrar for Norwich. Part II. : THE PRACTICE. CONTENTIOUS PRACTICE. By W. M. F. WATERTON, Barrister-at-Law, of the Probate Registry, Somerset House. NON-CONTENTIOUS PRACTICE. By E. LOVELL MANSBRIDGE, of the Probate Registry, Somerset House. Demy 8vo. 1906. Price II. IOs. cloth. Harris' Hints on Advocacy. Conduct of Cases, Civil and Criminal. Classes of Witnesses and Suggestions for Cross -examining them, &c., &c. By RICHARD HARRIS, K.C. Thirteenth Edition. Royal I2mo. 1906. Price Is. 6d. cloth. The Pocket Law Lexicon. Explaining- Technical Words, Phrases and Maxims of the English, Scotch and Roman Law. fourth Edition. By JOSEPH E. MORRIS, Barrister-at-Law. leap. 8w. 1905. Price 6s. 6d. cloth. Pollock's Digest of the Law of Partnership. Eighth Edition. With an Appendix of Forms. By SIR FREDERICK POLLOCK, Bart., Barrister-at-Law. Demy 8vo. 1905. Price IOs. cloth. Spencer's Agricultural Holdings (England) Acts, 1883 1900, with Explanatory Notes. Third Edition. By AUBREY J. SPENCER, Barrister-at-Law. Demy 8vo. 1906. Price 7s. 6d. cloth. Stroud's Dictionary of Words and Phrases Judicially Interpreted ; to which has been added Statutory Definitions. Second Edition. By F. STROUD, Barrister-at-Luw. In 3 Vols. Royal 8vo. 1903. Price 41. 4s. cloth. Odgers on Libel and Slander. Fourth Edition. By W. BLAKE ODGEHS, LL.D., K.C., and J. BROMLEY FAMES, Barrister-at- Law. Royal 8vo. 1905. Price \l. 12s. cloth. Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice. Sixth Edition. By W. BLAKE ODGERS, LL.D., K.C.. Recorder of Plymouth, Author of " A Digest of the Law of Libel and Slander." Demy 8vo. 1906. Price 12s. 6d. cloth. Eustace's Practical Hints on Pleading. By ALEX. ANDER- SON EUSTACE, Barrister-at-Law. Demy 8vo. 1907. Price 5s. cloth. Chambers' Handbook for Public Meetings. Third Edit. By GEO. F. CHAMBERS, Barrister-at-Law. Royal I2mo. 1907. Price, net, f 2s. 6d. cloth. j ** A Catalogue of New Law Works gratia on application. ( 3 ) W> STEVENS AND SONS, LIMITED, 119 & I THE GREATEST WORK IN LEGAL LITERATURE. KING'S BENCH SERIES now commencing. THE ENGLISH REPORTS, 1378 to 1865. FULL VERBATIM REPRINT ANNOTATED. CONSULTATIVE COMMITTEE : [Grei , The Right Hon. THE EABL OF HALSBUBY, lately Lord High Chancellor of The Right Hon. LOBD ALVEBSTONE. Lord Chief Justice of England ; The Right Hon. LOBD COLLINS, a Lord of Appeal in Ordinary ; Sir R. B. FINLA.Y, K.C., lately Attorney-General. FOLLOWING on the complete re-issue in 71 volumes of the House of Lords, Privy Council, Chancery. Rolls Court and Vice-Chancellors Reports, the KING'S BENCH SERIES is now in course of publication, and may be subscribed, for separately. This series is perhaps the most important of all the reports prior to 1865. A complete set of the originals from Belle we, 1378-1400, down to and including Best and Smith, 1861-1866, with all the collateral reporters, extends to no fewer than 250 volumes of all sizes and styles of printing. These are very costly, and would almost require a separate room for their accommodation. Subscribers will have the privilege of possessing a complete annotated reprint of all of these invaluable reports in about 40 uniform volumes in a modern and much more legible style of type, at a cost of 30s. per volume. The reports will be reprinted in strictly chronological order, and as the original pagination and machinery of reference will be maintained, references from text-books and digests will be found even more easily than in the originals. ffj^- NOW ISSUED. HOUSE OF LORDS (1694 to 1866), complete in 11 vols. royal 8vo. Price net, half bound, 22. PRIVY COUNCIL (including Indian Appeals) (1809 to 1872), complete in 9 vols. Price net, half bound, 13 : 10s. CHANCERY (including Collateral Reports) (1557 to 1866), complete in 27 vols. Price net, half bound, 40 : 10s. ROLLS COURT (1829 to 1866), complete in 8 vols. Price net, half bound, 12. VICE-CHANCELLORS (1815 to 1865), complete in 16 vols. Price net, half bound, 24. The Volumes are not sold separately. Full particulars sent on application to , STEVENS & SONS, Ld. t 119 & 120, Chancery Lane, London. * A large stock of Second -hand Law Reports and Text -books on Sab. ( * )