THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW P i/A _4W UBR^R^ LOS A«ixELBS^^««^^ PRINCIPLES OL'' THE LAAV OF PERSONAL PROPEllTY. PEINCIPLES LAW OF PERSONAL PEOPERTY, INTENDED FOE THE USE OE STUDENTS IN CONYEYANCING. BY THE LATE JOSHUA WILLIAMS (■! OK LINCOLN'S INN, SOMETIMK ONE OF THE CONVEVANCING COUNSEL TO THE COURT OF CHANCERY, AND AFTERWARDS ONE OF HER LATE MAJESTY'S COUNSEL. Iibc Seventeentb jeDttioii BY HIS SON T. CYPRIAN WILLIAMS OF LINX'OLn's inn, BARIUSTER-AT-LAW, LL.B. ; ONE OF I HE uqMJkWANCi; TO THE COURT '"^S^ Al'THOR OK "A TREATISE ON THE LAW OF VENDOR A^^jMfecH A%BR, " AND " WILLIAMS ON IIKAL y^lf^Br." ^ ^ 4ff c^5' EDITOR OF LONDON: SWEET AND MAXWELL, Limited, 3, CHANCERY LANE. TORONTO : THE CARSWELL COMPANY, Limited, 19, DUNCAN STREET. 1913. T \9I3 First Edition published . . . 1848 Second „ » . . 1853 Third . . 185G Fourth . . 1860 Fifth . . 1864 Sixth . . 1866 Seventh . . 1870 Eighth . . 1873 Ninth . . 1876 Tenth . . 1878 Eleventh „ ,, (the last prepared by the Ai ithor) 1881 Twelfth „ (by the present Editor) . . . . 1884 Thirteenth „ >> !, • • . . 1887 Fourteenth „ ,, (largely rewritten) . . 1894 Fifteenth ,. . . 1900 Sixteenth „ ,. . . 1900 PEEFACE TO thp: seventeenth edition. In this edition the alterations made in the law since the publication of the last edition have been incorporated, and the text has been revised throughout. The main statutory changes are those made by the Patents and Designs Act, 1907, the Copyright Act, 1911, the Trade Marks Act, 1905, the Companies Acts of 1907 and 1908, the Finance Act of 1910, and the Married Women's Property Act, 1907. The Bankruptcy Act, 1913, was passed too late to allow of its being incor- porated in the text, but such of its provisions as affect the subject-matter of the book are noticed in the Addenda. The law as to the liability of chattels to distress has been more fully stated than before (a), and a table of the things privileged from distress added. New paragraphs have been added on the priority of maritime liens as between themselves {b), and as to the seizure in execution and sale of growing crops (c). The law as to the assignment of rights (a) Pp. 104— lOG. (c) p. 151. (b) P. 129. *^An-^ ^fl VI PREFACE TO THE SEVENTEENTH EDITION. of action in tort and in contract has been restated (d). The difference between legal and equitable assets in the order of payment of a dead man's debts has been more definitely stated (e). A table of the investments in which trustees may by law invest trust money has been added (f). The provisions of the various Statutes of Limita- tion as to choses in action have been restated (q). And the precedent in the Appendix of a marriage settlement has been revised (li). 7, Stone Buildings, Lincoln's Inn, 28t/i August, 1913. (d) Pp. 168—171, 199—201. (g) Pp. 597—608. (e) Pp. 220—223. {h) Appendix (C) ; p. 643. (/) P- 417. PEE FACE TO THE FOURTEENTH EDITION. In preparing the present edition, the editor has ventured to work with a free hand. While following the main design of the original book, he has not scrupled to rewrite, to add or to excise, wherever he has judged it expedient to do so ; with the result that the book now contains a very large proportion of his own work. The main additions relate to the ownership of goods, and its history, and to the possession and aliena- tion of goods, and the title thereto ; and it is hoped that the consideration of these subjects at greater length than before will be justified by their importance. In other respects, the editor has done his utmost to restore the simplicity and brevity which were characteristic of the original text ; and that he has not been altogether unsuc- cessful in the direction of brevity, is shown by the fact that, although the additional matter amounts to more than fifty pages, the whole book is shorter by fourteen pages than the previous edition. Nor does this fairly represent the whole gain ; for a large amount of statute law now printed in type VIU PREFACE TO THE FOURTEENTH EDITION. uniform witli tlie rest of the text, was printed in smaller type in the former edition. The editor has specially endeavoured to condense his state- ment of statute law, a peculiarly difBcult and dangerous task. It may be mentioned, in par- ticular, that the whole of the introductory chapter is new. For part of the substance of it, the editor is indebted to the learning contained in Professor Ames's articles on the Disseisin of Chattels in the Harvard Laio Revieic ; he also owes much to discussion of the subject with his friend Professor Maitland. With respect to other parts of the editor's own work, he desires to express his sense of obligation to the treatises of Mr. Justice 0. W. Holmes on the Common Law, of Sir Frederick Pollock and Mr. Justice Wright on Possession, and of Sir Frederick Pollock and Sir William Anson on Contracts. An entirely new index to the book and to the cases, year-books, and statutes cited, has been prepared by Mr. Kenneth F. Wood, of Lincoln's Lm. Stone Buildings, Lincoln's Inn, 30^A July, 1894. TABLE OF CONTENTS. PAGE INDF.X TO CASES CITED xiii INDEX TO YEAR-BOOKS CITED . . . Ixxix INDEX TO STATUTES CITED .... Ixxxi ADDENDA xcvii INTRODUCTORY CHAPTER. Of the Subjects and Nature of Personal Property 1 § 1. Of the Difference between Real and Personal Property ....... 1 § 2. Of the Remedies for the Recovery of Good.s . 6 § 3. Of Things in Possession and in Action . . 28 PART I. OF CHOSES IN POSSESSION .... 46 CHAPTER I. Of Ownership with and without Possession . 46 § 1. Of Ownership in Possession and its Acquisition 46 § 2. Of Ownership without Possession ... 52 X TABLE OF CONTENTS. CHAPTER II. PAGE Of the Alienation of Choses in Possession . . 69 § I. Of the Means of Transferring the Ownership OF Chattels ....... 69 § 2. Of Alienation for Debt ..... 103 CHAPTER III. Of Ships 118 CHAPTER IV. Of Chattels which descend to the Heir . . 137 PART II. OF CHOSES IN ACTION 158 CHAPTER I. Of Actions ex delicto . . . . . .158 CHAPTER II. Of Contracts ........ 172 CHAPTER III. Of Debts 218 CHAPTER IV. Of Bankruptcy ....... 266 TABLE OF CONTENTS. CHAPTER V. Of Insurance CHAPTER VI. Of Personal Annuities, Stocks and Shares CHAPTER VII. XI PAGE 304 312 Of Patents and Copyrights . . 347 §1. Of Patents .... . 347 §2. Of Copyright .... . 368 §3. Of Copyright in Designs . 380 §4. Of Trade Marks . 382 §5. Of Trade Names . 389 §6. Of Goodwill .... . 390 PART III. OF PERSONAL ESTATE GENERALLY CHAPTER I. Of Settlements of Personal Property CHAPTER II. Of Joint Ownership and Joint Liability CHAPTER III. Of A Will 393 393 451 476 XU TABLE OF CONTENTS. CHAPTER IV. PAGE Of Intestacy ........ 515 CHAPTER V. Of the Mutual Rights of Husband and Wife . 532 § 1. At Common Law and in Equity prior to 1883 . 532 § 2. Under the Married Women's Property Act, 1882 557 § 3. Of Judicial Separation and Divorce . . 576 PART IV. OF TITLE 586 § 1. To Choses in Possession ..... 586 § 2. To Choses in Action . . . . . 597 Appendix (A.) Of the Bills of Sale Acts . . 623 Appendix (B.) Form of Letters Patent . . 640 Appendix (C.) Form of Marriage Settlement . 643 GENERAL INDEX 657 INDEX TO CASES CITED. PAGE A. v. M 582 A. B. & Co. (No. 2), Re . 275 Abbot, Ex parte. Re C4o\irlav 109 V. Blofield . . ". 537 V. Smith . . .461 Abbott V. Wolsey . .81 Worthington & Co., Ld.v 115 Abercorris Slate, &c., Co., Levy V. . . . . 345 Abergavenny (E. of), Mor- gan V. . . . . 1 54 Abingdon (Lord), Clarke v. . 238 Abraham, WeUs v. . .55 Abrahams, Re . . .010 Acaster, Rogers v. . . 543 Accidental Death Insurance Co., Shilhng v. . . 305 Acraman, Carr v. . . 100 Acton V. Acton . . . 504 M'Neilhe v. . . 469 V. White . . .549 V. Woodgate . .441 Adam, Wilkinson v. . 509, 510 Adams, Gummer v. . . 258 Poole V. . . . 309 V. Waller . . .609 Westlake v. . 181 Adamson v. Jarvis . . 461 Adcock, Ross v. . . .166 Addenbrooke, Foley v. . 454 Addington, Ex parte . . 230 Addison, Kemble v. . .631 V. Round ... 54 Adie, Clark v. . .351 Affleck V. Hammond . 300, 301 Aflalo, Goom v. . . .84 Lawrence & Bullen, Ld. ?; 375 Africano, The . . 129, 131 Agar V. George . . .431 V. Lisle ... 17 Agar-EUis, Re . . .193 Agra Bank, Ex parte . .617 FAQE Ainslie, Re . . . 149, 150 Akerman, Re . . . 610 Akrokerri Mines v. Economic Bank . . . .200 Aktiebolaget, &c., Hjorth & Co., Re . . . . 385 Alabaster v. Harness . .193 Albert Baker & Co., Re 386, 387 Alcock V. Smith ... 25 Alderson, Maddison v. . .84, 85 Aldridge v. Aldridge . 584, 585 Alexander, The . . .131 Alexander v. Alexander . 410 Dover v. . . . 510 Alford, SunboU v. . . 63 Alger V. Parrott . . . 403 Alhambra Palace Co., Phil- lips V 200 Allam, Ex parte . . . 635 Allatt V. Carr . . . 100 Allcard v. Walker . 543, 580 Allen, Brown v. . . . 503 Festing v. . . . 404 V. Smith ... 63 Alleyn v. Alleyn . . . 505 Allnutt, Re, Pott v. Brassey 432 All wood V. Hey wood . . 140 Alsager v. Spalding . . 265 Alsbury, Re . . . 399 Alsop, Ex parte . . 261, 264 Alsop's Patent, Re . . 360 Alton V. Harrison . .116 Wilmot V. . .199, 201 Altree v. Altrce . . . 637 Amalgamated Pictorials, Bowden Bros. v. . . 369 Amalgamated Society of Car- penters, Russell V. . . 196 Ambler, Re . . 244 (c), 570 Amcotts, Phelp v. . . 433 American Leather-Cloth Co., Ld., Lcather-Cloth Co., Ld. V. . . 382, 383, 384 American Tobacco Co., HanfstaengI v. . , . 371 XIV INDEX TO CASES CITED. PAGE PAGE Amicable Assurance Office, Armstrong, Henry v. . 440 Pearson v. . ■ ■ 436 Tullettv. . . 548, 549 Amicable Insurance Society Army and Navy Hotel Co., V. Bolland 305 Rosst; 039 Amies v. Skillern . 452 Armytage, Re, Ex parte Amis, Witt v. 482 Moore and Robin- Amyot, Ex parte . 319 son's Banking Co. . 629 Browne v. . 399, 400 V. Armytage 576 Anchor Reversionary Co., Arnold, Johnson v. 448 Ld., Marriott v. 123 Arrow Shipping Co. v. Tyne Anderson, Re 615 Improvement Commis- Currie v. 81 sioners .... 25 V. Lady Hay 578 Arthur, Jones v. . 256 V. Martindale 454 Artistic Colour Printing Petty V. 573 Co., Re, Ex parte Four- V. Radeliffe . 169 drinier .... 624 Smith V. 332 Artisans', &c., Corpn., Re . 613 V. Vicary 155 Arton, Pugh v. . 144 Andrew v. Andrew 396 Ascherson v. Tredegar, &c.. Andrews' Trusts, Re 295 Co., Ld 249 Andrews, i?e (1902, 2 Ch. 394) 482 Ash V. Invicta Mfg. Co. 390 Re, Ex parte Barrow 265 Ashburner, Fletcher v. . 419 V. Diggs 232 V. M'Guire . 504 Hands v. 229 Warden v. . 399 Kempe v. 454 Ashby, Re . 441 V. Salt . 193 ■ V. Ashby 541 Angerstein, Re 449 V. James 609 Tidswell v. . 306 Lloyd V. . . . 473 Angler v. Stannard 427 Reynolds w. 25,143,144 ,148 Anglesey, Re 245,513 Vere v. . . . 473 Anglo-American Telegraph Ashcomb's case . 37 Co., Ld., Reid-Newfound Ashford, Davies v. 420 land Co. v. 428 Ashley v. Ashley . 305 Anglo-Austrian Bank, Em- Burge V. . . . 195 bericos v. . 25 Ashwell, Re ... 292 Annandale, Brown v. . 352 Soar V. . . . 611 Ansdell v. Ansdell 582 Ashworth v. Outram . 546 ,555 Antoniadi v. Smith . 7 6,632 Askew, Carey v. . 478 Antrobus, Cunningham v. 540 Newton v. . 439 V. Smith 70 Aspinall v. Pickford 64 Apolhnaris Co., Fisher v. 192 Associated Portland Cement Apollinaris Trade Mark, Re 385 Manufacturers, Tolhurst v. 199, Apollo, The . 132 201 Applebee, Re 487 Astbury v. Astbury 605 Appleby, Pickering v. 318 Astley V. Weldon 215 Arbouin, Pritchard v. 509 Atcheson, ScarpelUni v. 537 Arbuthnot, Fyfe v. 99 Atkinson, Re . . . 546 Arcedeckne, ^e . 247 V. Bell .... 77 Archangel Maritime Insur V. Bradford, &c.. Build- ancoCo., North of Englanc I ing Society . 608 Pure Oil Cake Co. v. . 311 V. Denby . .197 ,265 Archdale, Tautz v. 245 Atkyns v. Kinnier . 214 ,215 Archer y. Gardiner 539 Atlantic Mutual Insurance V. Kelly 431 Co. V. Huth 136 Archibald, Sievcwright v. 84 Atlas, The .... 128 Arkle, WilUams v. 514 Attenborough, Clutton v. 202, Armitago. Re 397 209 Armorj^ v. Delamirie . 48, 51,54 Kirkham v. . 79 INDEX TO CASES CITED. XV PAGE Attenborough, Morley v. 595 Oppenheimer v. . 23 V. Solomon . 494 Att.-Gen. v. Bouwens 344 V. Brunning 221 V. Caldwell . 507 V. Campbell . 493 V. Clarkson . 446 V. Dobree . 445 • V. Fairley 446 V. Folce 493 Glubb V. . 509 V. Greaves . 507 V. Hawkins . 445 V. Heywood 444 V. Hope 492 V. Jefierys . 514 V. Jewish Colonization Assn. . 493 V. Johnson (1903 , i K. B. 617) 444 V. (1907, 2 K. B. 885) . 493 V. Leonard . 226 — — Lethbridge v. 445 V. Malkin 403 V. Mangles . 448 V. Meyrick . 507 V. Milne 443 ,446 V. Moore 51 V. Murray . 445 — — V. Napier 493 New York Breweries Co. V. . 493 V. Owen 446 V. Seccombo 444 V. Trustees of British Museum 51 V. Tyndall . 508 Winans v. (1904, A. c'. 287) . 481 V. (1910, A. C. 27) 344, 493 V. Worrall . 444 Attwator, Ex parte. Re Turner . 625 V. Attwater . 504 Aubin V. Daly 312 Auckland Union, Guardians of, C!hapman & Co. v. 160 Auldjo, Wallace v. 539 Aurora, The 131 Austin V. Mead . 482 Australian Steam Naviga- tion Co. V. Morse 136 Automatic, &c., Co., Ld., Woolfe V. 360 Auty, Teal v. 152 PAGE Avery, Re . . . . 494 V. Langford . .194 Avery's Patent, Re . . 367 A. W. Gamage, Ld., Werner Motors, Ld. v. . . . 380 Axford V. Reid . . . 556 Axtell, Young v. . . 468 Ayerst v. Jenkins . . 196 Aylesbury Dairy Co., Frost V. 596 Aylesford (Lady) v. G. W. Railway Co. . . . 562 Ayres, Re . . . . 485 Ayton V. Ayton . . . 512 B. Babington, Stuart v. . .413 Back, Cairney v. . . 252 Bacon, Re . . . . 557 Bacon's Will, Re . . 513 Badcock, Saddlers' Co. v. . 308 Badeley v. ConsoUdated Bank . . . 252, 470 Badger v. Shaw . . 113, 624 Badische Anilin, &c. v. Basle Chemical Works . 361 V. Hickson . 361 V. Isler 43 363 V. Levinstein 351 Badman, Pinto v. 383 ,388 Baerselman, Kemp v. . 200 Baggott V. Meux . 550 Baglan Hall Colliery Co. Re 335 Bagley v. Mollard 510 Bagot, &c., Co. V. Clipper, &c., Co. . 199 Bagueley v. Hawlcy 595 Bagwell V. Dry . 511 513 Law V. 441 Bailey v. Birchall 65 Cheshire v. . 60 V. Edwards . 248 Read v. 466 V. Sweeting . 84 V. Thurston 199 300 Baily, Snollgrove v. 482 Bain v. Loscher . 511 V. Sadler 221 Bainbridgc, Re . 614 Campbell v. 431 V. Firmstone 181 Hedloy v. 472, 474 Bainbriggc v. Blair 425 Baine, Willing v. 452 Baines v. Geary . 194 V. Wright . 264 Baines & Co., Hanfstaengl v. 372 XVI INDEX TO CASES CITED. Wilson & FAQE Bainton v. Ward . . 40G Baker, Be . . . 243, 302 V. Bayldon . 539 V. Bradley . . .549 V. Courage . . .001 Forster v. . . .39 V. Henderson . . 66 Heslopv. . . 112,279 Lyon V. . . . 425 V. Sampson V. Sebright Balcarres & Co. Co. V. Balch V. Symes Balcombe v. Balcombe Baldey v. Parker . Baldry, Norman v. Baldwin v. BiUingsley . Balguy, Broadhurst v. Balkis Consolidated Co. v Tomkinson Ball, Ex parte. Re Shepherd Caldwell V. . V. Warwick . Balls, lie . Glasscock v. V. Thick Balm, Clark v. Bamford, Be Brown v. Banham, Reddaway v. Bank of England, Chiir Frankhn v, Howard v. V. Lunn V. Moffatt V. Parsons Raphael v. Richardson v. Scott V. SuffeU V. V. Vaghano . Bankos, Mamer v. Bankruptcy Notice, Be Banks, Bell v. V. Gibson Banner v. Lowe . Witt V. Bannister, Brice v. Eichholtz V. Haley v. Moodie v. Barber, Be, Ex parte Stan- ford . . .636 V. Barber . . . 511 Buckley v. . . . 454 V. Fox . . .236 Knight V. . . 318, 342 574 150 461 66 584 82 498 37 426 338 55 134 . 169 610, 611 . 209 . 30 . 639 . 272 . 549 . 389 chilli;. 322 . 323 555, 556 321, 323 323 323 590 330 319 178 591 23 216 249 391 399 634 40, 199 594 415 604 PAGE 74 202 64 143 625 62 197 120 483 526 594 63 344 298 53 539 463 585 196 . 415 . 222 . 100 . 219 . 506 189, 615 . 273 . 600 194, Barber v. Meyerstein . Mills V. ... Barchard, Savill v. Barclay, Ex parte (5 De G., M. & G. 403) Ex parte. Be Joyce Hammonds v. V. Pearson . Barclay & Co., Ld. v. Poole. Barden, Be . Barham, Moor v. Power V. Baring v. Day Baring Bros., Venables Barker, Be . V. Furlong . V. Lea . - — — Price V. Stamper v. . Underwood v. Barlow, Errat v. . Nunn V. Reeves v. Barnard, Fhnt v. Earl of Glcngall v. Lyde v. Barnes, Ex parte . V. Glenton . V. London, Edinburgh and Glasgow Life Insurance Co. . 306 Monti V. . . . 143 Skey V. . . . 414 Barnett, Brandao v. . . 64 V. Howard . . . 564 V. King . . .289 Perry v. . . . 343 Vanv. . . .420 Barnett' s Trusts, Be . . 527 Barrack v. M'Culloch . . 434 Barrett, Carey v. . 256, 263 Barrow, Ex parte. Be Andrews 26 V. Gray ... 35 Lysons v. . . . 488 Barrows, Hall v. . . 383, 391 Barry, Haly v. . . .321 Bartholomew, Drybutter v. . 327 Ehrman v. . . . 194 Bartlett v. Bartlett . . 614 V. GiUard . . .505 Barton, Bcckton v. . . 506 V. Briscoe . . . 549 V. Gainer . . . 258 Heap V. . . . 146 Williams v. . . 23, 592 Barton's Will, Be . . 535 Bartrop, Eyre v. . . .248 Baskervllle, Brown v. . . 257 INDEX TO CASES CITED. XVI I PAGE Basle Chemical Works, Badische Anilin, &c. v. . 361 Basset v. Maynard . . 51 Way V. . . . 465 Bastable, Re . . . 281 Bastard, Nicholls v. . .57 Bateman, Brown v. . 99, 100 V. Davis . . . 418 V. Faber . . .548 Harvey v. . . .35 Bates, Ex parte . . . 289 Duckv. . . .377 Fosters. . . .518 Bateson v. Gosling . , 248 Bath V. Bath . . ,616 Bath Electric Tramways, Ld., Longman v. . .338 Batstone v. Salter . . 439 Batten, Re . . .261 Baum, Ex parte. Re Edwards 168 Re, Ex parte Cooper . 272 Baumann v. James . . 187 Baxter, Matthews v. . .175 TarHng v. . . .78 Bayes, Lee v. . . . 587 Bayldon, Baker v. . . 539 Bayley, Proctor v. . .160 Williams v. . . .192 Baylis v. Bishop of London . 601 Chowne v. . . .102 Bazeley v. Fordcr . . 574 Beak, Re . . . .300 Beak's Estate, Re . . 436 Bealo i;. Beale . . 410,411 Beall, Re . . . .614 Bean, Lepine v. . . . 510 Beard, Boulton v. . . 427 V. Egerton . . . 353 Beauchamp, Harris v. . 111,253 Lovell V. . . . 268 V. Powley ... 60 Beauchemin, Larocque v. . 336 Beauclerk, Paquin v. 503, 575, 576 Beaufoy, Campbell v. . . 480 Beaumont, Re . . . 482 V. Kayo . . . 570 V. Olivcira . . . 508 V. Reeve . . 180, 192 Beavan, Re . . . .175 V. Earl of Oxford . 321 V. McDonnell . 102,175 Bechuanaland Exploration Co. t'. London Trading Bank . . 41,344 Beebe, Faiuitleroy v. Beck, Newton v. . V. Pierce Ward V. W.P.P. 420 139 569 120 Beckett, Blaiberg v. Donaldson v. V. Tower Assets C' Beckford, Greening v. Beckham v. Drake Beckton v. Barton Beddington, Re . Beddow, Gillingham v. Beech v. Keep Beedom, Hooley v. Beer, Re V. Beer Foakes v. Beeson, Dawson v. Beesty, Studdy v. Begbie, Fenwick v. V. Phosphate Co. . Behrend's Trust, Re Belding v. Read Belham, Re . Bell, Atkinson v. V. Banks V. Bidgood Bowlby V. Hamilton v. Harmer v. Hobson V. Meux V. Potts V. — — - Sanderson v. Belton V. Hodges Benas, Ogden v. . Benedict, Montague v. PAGE . 636 . 369 . 96 . 616 168,464 . 506 . 506 . 392 . 437 . 626 . 299 . 399 . 256 . 392 . 208 . 625 Sewage . 190 299, 300 . 99 222,519 . 77 . 249 . 232 . 342 . 113 126, 130 . 619 . 615 . 190 . 63 . 268 . 206 . 645, 572. 573 546, 548 503 300 Bennet v. Davis . Bennett, Ex parte Re Cox V. . V. White Bensley v. Bignold Benson v. Maude . Shaw V. Bentall v. Burn . Bentinck, Re Bentley v. Mackay Vilmont v. . Benwell, Ex parte Benyon tK Benyon V. Maddison Benz&Co.'s Application, Re Bcrchtoldt, Countess of, Earl of Lonsdale v. . Beresford v. Browning Bern, Hardy v. Bernard, Coggs v. Bemardy, Rees v. Berncs, Stanley v. 564 257 191 498 322 82 223, 225 438. 439 15,590 199,283 . 582 . 402 385 403 . 465 . 238 57, 60, 61 . 193 . 480 XVlll INDEX TO CASES CITED. PAGE Bcrney, West v. . . .411 Berriclgo v. Berridgc . . 247 Borriman v. Peacock . . 153 Bcrringtou v. Evans . 227, 433 Price u. , . .102 Berry, Re, Ex parte Wilkin- son . . . .272 Longbottom v. . . 143 Besant, Re ... 193 V. Wood . . 584, 585 Betjemann, Dowling v. . 20 Bcttcrbcc V. Davis . . 256 Betts, Re . . . .272 V. Burch . . .215 Comfort V. . . .39 De Vitre v. . . . 360 V. Gibbins . . .461 V. liimpton . . . 537 V. Menzies . . .351 Neilson v. . . . 366 Betty, Smith v. . . 259, 609 Bevan, Ex parte . . . 467 V. Waters . . .63 Bewit, Whitfield v. . .153 Beyfus v. Lawley . . 406 Bickersteth, Littledale v. . 509 Biddell v. E. Clemens Horst Co 311 Bid-der v. Bridges . .257 Biddlecombe v. Bond . . 86 Bidgood, Bell v. . . . 232 Biffin V. Bignell . . . 575 Biggs V. Evans ... 23 Bignell, Biffin v. . . . 575 Bignold, Bensley v. . . 191 Bilham, Boyd, Ld. v. . 104 (i) Bill V. Cureton . . .439 Billingsley, Baldwin v. . 37 Lady Shore v. . . 452 Bindley, Felthouse v. . .176 Bingham, Pardo v. . . 604 Binks, Harland v. . .441 Binnington v. Walhs . .192 Binns, Re . . . . 289 Swallow V. . . . 414 Binstead, Re . . . 270 Birch, Sharpe v. . . .631 Birchall, Bailey v. . .65 Bird V. Brown ... 89 V. Gammon . . .188 ■ Morleyv. . . 452,511 V. Philpott . . .300 V. Ralph . . .166 Strong V. . . . 258 Birkley v. Presgrave . . 136 Birkmyr v. Darnell . . 185 Birmingham, &c., Co., Re . 38G Powell V. .■ . .390 PAGE Birmingham, &c.. Society v. Lane .... 566 Birmingham County Court Judge, R.v.. . . 229 Birstall Candle Co. v. Daniels 109 Birtles, Piggott v. . 104 (ii) Bi.schoffsheim, Callisher v. . 181 Bishop, Ex parte, Re Tonnies 295 V. Bishop . . 581, 584 V. Eihot . . .149 V. Montague . 14, 17, 53 Bishopp V. Colebrook . . 542 Bissell, Re . . . .270 Bisset V. Burgess . . .167 Bittlestone v. Cook . .271 Black V. Williams . . 120 WiUisv. . . .433 Black & Co.'s case . . 244 Blackburn, Hobson v. . . 508 Blackburne, Strode v. . . 140 Blacklole, Harvie v. . . 13 Blacklow V. Laws . . 547 Blackpool, &c., Co., Fuller v. 372 15, 54, 156 parte, Re 624, 630 636 631 Co., Ed Blades v. Higgs Blaiberg, Ex Toomer V. Beckett V. Parke Blaina Furnaces monds v. . Blair, Bainbrigge V. Nugent Blake's case Patent, Re Blake, Ex parte Re t\ Brjaie Dundas v. V. Gale V. Izard Mennie v. V. White Blakelock, Stevenson v. Blaksley's Trusts, Re . Blanchard, Re Bland v. Dawes . Fuggle V. McCulloch V. Bland's Settlement, Re Blank v. Footman Blantern, Collins v. Bligh V. Brent Blight, Loveacres d. Mudge v. Blisset V. Cranwell Blockley, Re . . . Blofield, Abbot v. Blood V. Blood Bloomfield, Colverson v. 345 425 603 256 354 431 497 531 610 115,498 99, 100 . 14 . 248 . 64 . 320 131, 1.32 . 547 450, 514 . 436 . 431 . 380 . 192 . 455 457 457 525 537 582 231 INDEX TO CASES CITED. XIX PAGE PAGE Blount V. Burrow. 483 Boucas V. Cooke . 375 Blow, i?e . . . 601 Bouch, Re, Sproule v. Bouch 398 Bloxam v. Elsee . 392 Boucher, Prescott v. . 538 V. Favre 480 Boucicault v. Chattcrton 373 V. Sanders . 86 V. Delafield . 373 Blumberg v. Life Interests Boughton, Knight v. . 400 &c., Corporation 256 Lord St. John v. . 603 Bkmdell, Re 5C )5, 550 Boulton V. Beard 427 Blunden v. Desart 65,66 V. Bull 353 Blurton, Kirk v. . 473 Hornblower v. 351 Blythe, Ex parte . 466 V. Prentice . 574 Fenton v. 632 Bourdillon v. Roche 255 V. Granville . 431 Bourn, i?e( 1893, 1 Ch. 188). 495 Boaler v. Mayor . 248 ^e (1906, 1 Ch. 697) . 487 Board of Trade, Turquand v 279 ■ Dowbiggen v. 246 Bodega Co., Ld., Be . 601 V. Fosbrooke . 5 1, 70 Bodley v. Reynolds 93 V. Freeth 327 Bodman, Be 346 Hawken v. . 473 Bogg, JIason v. . 243 V. Swan & Edgar, Boldero, Godsall v. 306 Ld 383 Lushington v. 153 Boutts V. Elhs . 482 Bolitho V. (iidloy . 563 Bouverie, Low v. 615 Bolland, Ex parte. Re Clint 295 Bouwens, Att.-Gen. v. . 344 Ex parte. Re Roper 62 9,631 Bowden, Re . . . 428 Amicable Insurance Esposito V. . 190 Society v. 395 Sinnott v. . . 252 , 309 Bozon V. 65 Bowden Bros. v. Amalga- V. Disney 305 mated Pictorials 369 r. Young 321 Bower v. Hett 294 Bolton, Re . 510 V. Marris 260 V. Buckenham 248 Nicholson v. 81 V. Curre 428 Boweren, Grj'mes v. 144 V. Salmon . 248 Bowers, Taylor v. 197 Bolton's Library, Ld., Mason Bowes, Countess of Strath- V 269 more V 545 Bona, The . 136 Bowker v. Evans 171 Bonacina, Re 183 Bowlby, Re ... 416 Bond, Biddleoombe r. . 86 V. Bell 342 Smith V. 237 Bowles, Re . . . 404 411 Bonham, Re, Ex parte Post- V. Rudd 178 master-General 219 Bowles' case 153 Bonnard v. Dott . 197 Bowley, Reynolds v. . 468 Boosey, Cha])pell v. 372 Bowman, Mullen v. 513 Jeffer3'^s v. . .3(3 9,372 Tilleyv. . .588 590 Booth V. Booth . 426 Bowring, Standing v. . 439 Kirkman v. . 469 Bown, Re, O'Halloran v. King 550 Martindalc v. 75, 11 5, 624 Bowser v. Cox 248 Whale V. . 494 Bowshcr, Davis v. 64 Boothby, Morley v. 184 Bowyer v. Woodman . 605 Boothroyd, Winfield v. 20 Boxall. Scorell i'. . 152 Borland's Tru.stee v. Steel 32 5, 338 Boyd V. Boyd 525 Borman. Scarborough v. 548 V. Shorrock . 625 Borwick, Threfall v. . 63 Ld. V. Bilham . 104 (i) Bosanquet. AVebster r. 214 Boydell v. M 'Michael . 149 Boss V. Godsall . 418 Boylo V. Bishop of Peter- Boswell, Rr . 601 borough . 409 Botfield, Bradburne v. 454 London and Provin- Bothamley v. Sherson . 503 cial Bank i\ . h2 556 XX INDEX TO CASES CITED. PAGE Bozon V. BoUand . . 65 Braccbridgc v. Cook . . 535 Bracegirdle v. Hcald . .188 Bracken, Re . . . 499 Bradburne v. Botfield . . 454 Bradford Banking Co. v. Briggs . . 341, 342 Rouse V. . . 249, 4G9 Bradford, &c.. Building .Society, Atkin.son v. . 608 Bradford Old Bank, Walker v. 40, 199 Bradlaugh v. Newdegate . 193 Bradley, Baker v. . . 549 V. Copley . . 54, 94 Hampshire v. . . 426 Perkins v. . . . 102 Seed V. . . . 637 Wren v. . . . 584 Bradshaw, Custance i\ . 455 Yeoman v. . . . 240 Brady v. Todd . . .572 Brady], Burridge v. . . 505 Bragg, Carlisle, &c.. Bank- ing Co. V. . . .198 Braithwaite v. Britain . . 465 Kirton v. . . . 256 V. Skinner ... 36 Brail, Re . . . .295 Brand, Parsons v. . . 637 Whitfield i;. . .113 Brandao v. Barnett . . 64 Brandley Mining Co., Jenkin- son V. . . . . 639 Brandon, Ex parte, Re Trench 269 V. Robinson . . 548 Brandt, Sharman v. . .84 Brassey, Pott t;. . . . 432 Brearey, Roundell v. . . 433 Brearley, Ramsden v. . . 579 Brekke, Orient Co., Ld. v. . 311 Bremer's Patent, Re . . 368 Bremridge, Evans v. . . 463 Brent, Bhgh v. . . . 455 Brereton v. Edwards . 253, 325 Breton's Estate, Re, Breton V. WooUven . . 70, 535 Brett i\ Grcenwell . . 539 Briant, Re . . . .539 Philpot V. . . . 249 Brice V. Bannister . 40, 199 V. Stokes . . .426 Brick, &c., Co., Jameson v. . 300 Bridge v. Bridge . . . 439 1\ Cage . . .196 V. Yates . . . 452 Bridget, Re . . . .508 Bridges, Re . . . . 289 Bridges, Bidder v. Etty V. V. Hawkesworth . Brierley v. Kendall Brig Nestor, The Briggs, Re . ■ Bradford Banking Co. I'. . V. Chamberlain V. AVilson Briggs & Co., Re . Bright's Trusts, Re Brighton Club Co. combe v. Brindley, Re PAGE . 257 319, 616 . 52 94 127 302 341, 342 . 543 . 609 . 472 . 613 Dun- . 245 . 264 Brinsmead v. Brinsmead & Sons , . .390 V. Harrison . . 93, 460 Brinsmead & Sons v. Brinsmead . . . 390 Briscoe, Barton v. . . 549 V. Briscoe . . 65, 66 • Hanchett v. . . 542 Bristead v. Wilkins . . 322 Bristol, &c., Co. v. Fiat Motors, Ld. . . . 596 Bristo\\- V. Warde . . 410 Britain, Braithwaite v. . 465 V. Rossiter . . 85, 185 British Automobile, &c., Ld., Pye v. . . 214, 216 British Cash, &c., Ld. v. Lamson Stove, &c., Ld. . 193 British Drug Houses' Trade Mark, Re . . . .386 British Empire Shipping Co. V. Somes .... 63 British, &c.. Finance Cor- poration V. Couper . . 333 British, &c., Co., Metropoli- tan Gas Meters v. . . 367 British Motor Syndicate v. Taylor . . . .361 British Mutoscope Co. v. Homer .... British Oil, &c., Ld.. Mor- daunt V. . British Radio, &c., Co., Marconi v. . . . British S. Africa Co., Com- panhia de Mozambique v. British Steam Navigation Co. V. Commissioners of Inland Revenue Briton, &c., Ass., Ld., Mason v. . Broad, Driver v. . Woolley V. . 43 87 351 21 345 116 345 381 INDEX TO CASES CITED. XXI PAGE Broadhurst v. Balguy . . 426 Broadmead, Dilkes v. . 114, 115 Broadsmith, Tomlinson v. . 472 Brockett, Chambcrlaj-ne v. . 509 Bromhead, Wilkins v. . .77 Bromley v. Brunton . 436, 482 Glegg V. 40, 99, 169, 170, 181, 201, 252, 438 V. Smith , . .196 Bronk v. Broomhall . .125 Brook, Ex parte . . 144, 146 Brooke, Ex parte . . .171 Be . . . 148, 627 V. Enderby . . . 469 V. Haj-nes . . .486 V. Mitchell ... 54 Brooks , Ex pa rte , Re Fo w ler 112 V. Keith . . .431 Pearce v. . . .196 Broom v. Broom . . . 455 Broomhall, Bronk v. . . 125 Broughton v. Broughtoii . 425 Browing, Dodd v. . . 27 Brown, Ex parte. Re Reed . 025 Ex parte. Re Smith . 232 V. Allen . . 503 V. Annandale . . 352 V. Bamford . . 549 V. Baskerville . . 257 V. Bateman . 99, 100 Bird V. ... 89 Burns' Trustee v. 269, 292 Collins' Co. V. . . 384 V. Dimbleby . . 564 V. Lee .... 247 Leroux v. . . 84, 184 V. Pocock . . . 548 Read w. ... 39 Richardson v. . . 594 Stanton v. . . . 155 f. Tanner . . .135 Wakefield v. . . 454 V. Weatherby . . 4(i5 Brown & Co. v. Hutchinson 470 Scott V. & Gregory, Ld Browne v. Amjot V. Carr V. Cavendish • Chapman v. ■ V. Gibbons . V. Hammond Pfleger v. V. Savage Browning, Beresford v Dodd V. Brownlow, Nixon v. Brownrigg, Bryson v. . 190, 197 Re . 610 . 399, 400 . 249 . 441 . 428 . 599 , 512, 513 . 256, 265 . 615 . 465 27 . 329 . 482 PAGE Brownsmith, Wilson v. . 504 Bruce, i?e . . 608 609, 610 Brumridge v. Brumridge . 427 Brunning, Att.-Gen. v. . 221 Brunton, Bromley v. . 436, 482 V. Electrical Engineer- ing Cpn. . 345 ■ English, &c., In- vestment Co. v. 345, 613 Brutton and Burne\', Ld. ,Re 336 Bruyere, Pepin v. . 480 Bryan v. Clay . 167 Bryans v. Nix . 74 Bryant, Laythoarp v. . . 187 Bryce, Cannan v. . 196 Brydone's Settlement, R( c . 650 Brj^ne, Blake v. . . 531 Bryon, Re . . 510 Bryson i\ Brounrigg . . 482 Buchanan, Fleming v. . 406 Buck V. Robson . 40 Sutton V. 22, 58 Buckenham, Bolton v. . 248 Buckett, Rose v. . . 168 Buckhurst's case . . 138 Buckland v. Buckland . 432, 559 Buckleton, Heilbut & Co . V. 595 Buckle\% Ex parte 472,473 V. Barber . 454 V. Crawford . . 229 V. Gross 48,51 Earl of Stafford v. 312,313 AVigram v. . . 613 Buckmeister, Foong Tai i >. . 131 Bude, &c., Rail. Co., Lee V. . 329 Budgett, Re . 466 Bulkeley, Swindell v. . . 608 Bull, Boulton V. . . 353 V. Faulkner . 66 Bullen V. Sharp . . 470 Bulley V. Bulley . . 65 Bullock V. Dodds . 168 Llojals' Bank v. . . 591 Bulteel V. Plummer . 408 Bumpus, Re 244 (a), 268, 292 Bunn V. Markham . 483 Burch, Betts v. . . 215 Burchell, Eastland v. . 574, 575 V. Wilde . . 391 Burdett, Stirling v. . 248 Burdick, Sewell v. 74,134 Burdiss, Carr v. . 75 Burford, Dix v. . . 426 Burge V. Ashley . . 195 Burgess, Bisset v. . 167 V. Burgess . . 390 Tappenden v. . 261 Williams v. . . 232 XXll INDEX TO CASES CITED. PAGE Burghardt, Re . 272 Burghart, Lane v. . 185 Burgis V. Constantine . . 120 Burke, Re . . . . 417 ■ • V. Jones . 610 Burn, Bentall v. . . 82 — — V. Burn . 474 V. Carvalho . 30,37,97 ■ — — Stone V. . 389 Burnaby v. Equitable R ever- sionary Interest Socie ;ty . 458 Burnaby's Settled Esl .ates, Re ... . . 140 Burnand v. Rodocanacl li . 310 Burnell, Foley v. . . 449 — — Gale V. 94,99 Burnett, Lumsden v. . . 106 V. Mann . 525 Burns, The . . 126 Burns' Trustee v. Brow n 269,293 Burrell, Krehl v. . . 160 Buri'idge v. Bradjd . 505 Burrough v. Moss . 537 Burrow, Blount v. . 483 Burro wes, Stuart v. . 490 Burrows, Keith v. . 135 Burt, Piddocke v. . 473 Burton, Davis v. . . 636 Goode V. . 139 V. Hughes . . 58 V. Sturgeon . . 581 Bury, Petrie v. . 451 Bush, Hart v. . 82 Pickering v. . 592 ■ V. Shipman . . 264 Bushell V. Wheeler . 81 Busk V. Davies . 78 ■ V. Fearon . 135 Butcher v. Butcher . 431 Freestone v. . 572 V. Jackson . . 412 V. Stead . 296 Butler, Falkner v. . 410 Lee V. . . 88 V. Rice . 255 Corporation of Scar- borough V. . 258 V. Wearing . . 293 V. \Vildman . . 136 Butler's Trusts, Re 4 52,458,535 Butlin, Hawtry v. . 625 Butlin's Trusts, Re . 555 Butterfield, Re . . 469 Butterw orth. Re . . 295, 434 Button, Re (1 K. B. fi( 32) . 273 Re (2 K. B. 180) 26,112 Buxton, Ross v. . . 65 Bjers, Wilkinson v. . 257 Byng, Hoare v. . ■ V. Lord Strafford . Byrn v. Godfrey . PAGE 402 402 258 C. Cadogan v. Earl of Essex . 418 V. Lyric Theatre . . 253 Cage, Bridge v. . . . 196 Cahill V. Cahill . . 584, 585 Cahn V. Pockett's, &o., Co. 80, 88,90 Cam V. Moon . 73, 482, 483 Caine v. Coulson . . . 256 Caird v. Sime . . 369 Cairney v. Back . . . 252 Caklow V. Pixell . . .167 Caldwell, Att.-Gen. v. . . 507 V. Ball . . . .134 California Fig Syrup Co., Re 385 Caliph, The . . . 133, 164 CaUisher v. Bischoffsheira . 181 Calvert v. Thomas . . 636 V. London Dock Co. . 248 Calye's case . . . .61 Camm, Goulder v. . . 549 Cammcll v. Sew cll . . 25 Campbell, Re . . . 446 — Att.-Gen. v. . . 493 V. Bainbridge . .431 V. Beaufoy . . . 480 V. Campbell (2 M. & C. 25) . 426 V. (L. R. 1 Eq. 383) 507 V. Gillespie . . . 429 — — V. Home . . . 412 Campbell's Policies, Re . 430 Campion v. Cotton . .180 Camroux, Molton v. . 102, 175 Canali, Valentini ik . .174 Candlish, Wilkinson v. . 255 Cann, Re . . . .629 Cannan v. Bryce . . . 196 Cannings v. Flower . . 415 Cannington v. Nuttall . .351 Cannon, Smith v. . . 272 Capeyron, Chasteauneuf v. . 121 Capital and Counties Bank v. Gordon . . . 206 McCarthy v. . . 292 Capper, Ex parte . . .215 n.v 42 Reeves v. . . . 95 Capron v. Capron . .401 Caralampi, Tuther v. . . 238 Carbery (Lord), Freke v. . 480 INDEX TO CASES CITED. XXlll PAGE Carbolic Smoke Ball Co.. Carlillw. . . 17 6,181,184 Careless, Rachfield v. . 513 Carew, Clive v. 548 Carey v. Askew . 478 V. Barrett . 256, 263 — — Collins V. 425 Cargo ex Sultan . 135 Carlill V. Carbolic Smoke BaUCo. . 176,181,184 Cowan V. , 252 Carlisle (Earl of), Lechmere v. 420 Carlisle, &c.. Banking Co. v. Bragg 198 Carlon, Clack v. . 425 Carlton Bank, Davidson V. . 634 Carnatic Rail. Co., Reg. V. . 555 Came, Consolidated Car Heating Co. v. . 351 Carney v. Plimmer 195 Carnley, Wilson v. 584 Carpenter v. Deen 634 Pitts V. 257 V. Smith 351 Tebbs V. 314 Carr v. Acraman . 100 Allatt V. 100 Brow nc v. . 249 V. Burdiss . 75 Carrick, Freshney v. . 113 Carringdon, Deering v. 35 Carrington, Ex parte . 267 ■ — ■ — V. Harway . 171 Carruthers, Parkin v. . 41)8 Carstairs, Ex parte 248 Maltby v. . 248 Carte, Emden v. . 199 ,300 ,301 Carter v. Carter . 430 V. Crick 594 Edwards v. . 173 554 V. Taggart . 400 540 V. Whalley . 469 Carter and Kcndcrdine'sC on- tract, lie . 295 Carter Medicine Co.s Trade Mark, Be . 385 Cartwright v. Cartwright 583, 584 Taylor v. 507 V. Vawdry . 509 Carvalho, Burn v. 50, 37, 97 Carver, Waugh v. ' . 468 473 Case, Hartley v. . 208 South Carolina Bank v. 473 Casey's Patents, Be . 363, 364 Cassa Maritima of Genoa, Kleinwort & Co. v. . 128,135 Cassels V. Stewart . . 459 Cas.son v. Churchley Cassyn, Wilflete v. Castellain v. Preston Castelli v. Cook . Castle, Pear v. V. Sworder . Castlegate S.S. Co., Morgan V 127 Castrique v. Imrie 25, 26, 49, 126 PAGE . 75, 84, 626, 637 . 27 . 170,308 . 132 . 557 72,82 Cates, Shaw v. Catford, Be . Cathcart, Hood-Barrs v. Catlow V. Catlow . Caton V. Caton Catterall v. Hindle Caucasian Trading Corpora- tion, Ex parte . Caulfield v. Maguire Cautley, Poster v. Cave V. Cave Farquharson v. Fitzroy v. V. Roberts . Cavendish, Brow ne v. . V. Geaves Cawdor, The Cayley, Phillips r. Ccila, The .... Cellular Clothing Co. v. Maxton .... Chadwicli v. Doleman . Chaine, Hamilton v. Challinor, Ex parte, Be Rollers 428 64 564 65 187 255 269 246 . 408 . 591 . 483 35, 39, 200 . 527 . 441 . 37 . 1.32 . 407 131 389 410 029 629 Challoner v. Robinson 104, 104 (i) Chaloner, Horsley v. . . 500 Chamberlain, Briggs v. . 543 Coltman v. . . .124 V. Wilhamson . . 165 Chamljcrlayiu' v. Brockctt . 509 Chambers, Cliillingw ortli v. . 461 V. (Joldwin . . . 415 Hutchins v. . . . 105 ■ V. Miller . . . 254 Champetnown v. Scott . 66 Chanipney v. Dnvy . . 509 Channon v. Patch . .153 Chant, Be . . . . 601 Chanter v. Deuhurst . . 363 Chaplin, Ex parte, Be Sinchiir 272 — ■ — V. Rogers ... 73 V. Viney . . . 255 Chapman, Be, Ex parte Johnson . 272, 629 V. Brow ne . . . 428 V. Esgar . . . 221 Fitzgerald v. . . 581 XXIV INDEX TO CASES CITED. Chapman, Howse v. Leicester v, May V. V. Michaelson V. Milvain . • V. Spiller V. Thumblethorp Chapman & Co. v. Guardians of Auckland Union Chappell V. Boosey V. Purday . Chappie, Ee, Ex parte Izard Newton Chap- PAGE 507 587 209 197 331 595 14 160 372 369 113, 633 Co., Ld. Ee man .... Chard v. Jervis . Charing Cross Advance and Deposit Bank, Ex parte, Ee Parker Charles, Ex parte Charles A. Vogeler Cooke V. . Charles Amelia, The Charles Bright & Co . SeUar v. . Charles^ orth, Malcolm v. V. Hermann V. Mills Chartered Mercantile Banlc of India, &c., Minna Craig Steamship Co. v. Chase, Goodman v. Chasemore v. Turner . 182, 600 Chasteauneuf v. Capeyron . 121 Chatterton, Boucicault v. . 373 Cheavin v. Walker . . 383 Cheesman, Clement v. . 436, 482 Chenej^, Gillespie v. . . 596 Cherry v. Heming . .186 Chesham's Settlement, Ee . 449 Cheshire v. Bailey . . 60 Cheslyn v. Dalby . .188 Loder v. . . .35 Chester, Taylor v. . .196 Chesterfield's Settled Es- tates, Ee . . 142, 144, 149 425 229 629 171 267 126 346 540 197 96 25 185 Cheyne, Eccles v. Chichester, Coventry v. Smith V. Chidell V. GaLsworthj' . Child, i?e . Children, Paul v. Chilhngworth v. Chambers Chinery, Ex parte Chioggia, The Chirney, Finlay v. Chiswell, Gray v. Chitty, Cooper v. 512 506 65 100 270 510 461 270 135 163 465 17 PAGE Cholmeley v. Paxton . . 153 Chowne v. Baylis . . 102 Christie, Ee . . . 286 V. Taunton & Co. . 38 Christmas, Preston v. . . 256 Church's Trustee v. Hibbard 229 ChurchiU, Ee . . .498 V. Bank of England . 322 Guy V. . . 168, 169 V. Small . . .140 Churchill (Lord), Ee . 223, 247 Churchley, Casson v. 75, 84, 626, 637 Churchward v. Churchward 582 V. Studdy . . .156 Churton v. Douglas . .391 Cigala's Settlement, Ee . 493 Cit}' of London Court, Judge of the, R. t>. . . . 127 City of London Electric Lighting Co., Shelter v. . 160 City of London Steam Packet Co., Fenton v. . . .134 City of London Bank, Summers v. . . . 556 Clack V. Carlon . . . 425 Clancy v. Pigott . . .184 Clanmorris, Thomson v. . 606 Clare, Ridgway v. . . 465 Claridge, Hollis v. . .66 Seal V 631 Clark, Ee, Ex parte Beard- more . . .300 ■ Ee, Ex parte Schultze . 570 V. Adie . . .351 V. Balm . . .632 V. Clark . . 584, 585 Dixon V. . . 255, 256 France v. . 57, 340, 341 V. Gaskarth . 104 (ii) Hasluck V. . . . 303 Issack V. . . .17 • • V. London General Omnibus Co., Ld. . 163 Singer Manufacturing Co. V. . 587 Smith V. . 205 Clarke, Ee (35 Ch. D. 109) . 99 Ee, Ex parte Buckley . 472, 473 — — V. Lord Abingdon . 238 Groves v. . 539 V. MiUwall Dock Co. 104 (I) V. Earl of Ormonde . 496 V. Seton . 237 ■ V. Shee . 590 Wride v. . 221 Clarke's Design, Ee . 380 INDEX TO CASES CITED. XXV PAGE Clarke's Trusts, Re . . 550 Clarkson, Att.-Gen. v. . . 446 Wikli;. . . .237 Claugh V. French . . 233 Claj', Bryan v. . . . 167 Clayton, Re . . .521 V. Kynaston . 460, 463 V. Le Roy . 15, 17, 54, 589 V. Peat . . .341 Clayton and Barclay's Con- tract, Re . . . .300 Clayton's case . . 259 Clears, Real and Personal Advance Co. v. Cleaver, Re . V. Mutual, &c.. Association Clegg V. Clegg Pott V. V. Rowland . Clement v. Cheesman Clements, Re t'. London & Ry. Co. V. Matthews Walker v. . Clemo^\•, Re . Clifden, Re . Clifford, Re . V. Laton Clift V. Schwabe . Clifton, Fox V. . . . Climie v. Wood . Climpson v. Coles Cline's Estate, Re Clint, Re ... . Clinton's Trusts, Re Clipper, &c., Co., Bagot & Co. V. . . . . Clissold V. Cratchley . Clive V. Carew Close V. Close V. Waterhouse Clossman v. AA'hite Clough V. L. & N. W. Ry. Co V. Samuel . Clulow's Trusts, Re Clutterbuck's Settlement, Re 432 Clutton V. Attenborough 202, 209 Coal Co-operative Society, 0. N. Ry. Co. V. . \ Coates V. Moore Cobb V. Cobb Furber v. Cochrane v. Entwhistle v. . 637 V. Moore . . 69, 70, 75 Cock, Lashbrook v. . . 457 Cockburn, Daubeney v. . 412 637 . 636 Life . 308 . 433 . 240 . 499 436, 482 . 416 N. W. . 174 . 98—100 . 609 . 493 . 602 . 504 . 574 . 305 . 327 . 143 . 629 . 400 . 295 . 431 199 2.54 548 248 64 16 85 99, 271 399, 400 639 631, 637 . 575 . 636 PAGE Cockerell v. Essex (Earl of) . 402 Cockran, Randal v. . . 170 Cocksedge v. Cocksedge . 583 Codrington v. Codrington . 581 Coggs V. Bernard . 57, 60, 61 Coghlan, Re . . . 430 Cohen, Re . . . 270, 281 V. MitcheU . . 169,299, 300 Palmer v. . . . 171 Cohn, Oettinger V. . .211 Cole V. Eley ... 65 Kearsley v. . . 463 Mouflet V. . . .194 n. North- Western Bank 586 Colebrook, Bishopp v. . . 542 Colegrave v. Dias Santos . 143 Coleman v. Smith . . 386 Coleridge, West Yorkshire Darracq Agency, Ld. v. . 263 Coles, CUmpson v. . . 629 Hughes i;. . . . 611 Vibarti;. . . .220 Colgate & Co.'s Mark, Re . 385 Collector of Customs, Rex v. 454 Collett, Meryon v. . . 403 V. Morrison . . . 306 Collier, Mumford v. . . ()29 Sayers v. . . 160, 161 Collingridge v. Royal Ex- change Corporation . . 309 ColHns V. Blantern . .192 V. Carey . . . 425 Hobby V. . . . 543 V. Lamport . . .123 Lowndes v. . . . 245 V. Martin . . .209 — — Miller v. . . . 543 Sanderson v. . . 60 Collins' Co. V. Brown . . 384 Collinson, Holderness v. . 64 Collis, Fletcher v. . . 428 Colljcr V. Isaacs . . . 99 Colonial Bank v. \\'hinncj' 29, 43, 254, 341, 343, 392, 617 V. Williams . . . 344 Colonial Trusts Corporation, Re 345 Coltman v. Chamberlain . 124 Columbian Fire Proofing Co., Ld., Re ... . 346 Colvcrson v. Bloomfielil . 231 Colvin, Wilton v. . . 431 Combined, &c., Machine Co., Re 252 Comfort V. Betts . . 39 Hallt). . .629 XXVI INDEX TO CASES CITEH. PAGE PAGE Commissioners of Inland Coope V. Cresswell . . 604 Revenue, British V. Twyman . . 247 Steam Navigation Cooper, Ex parte, Be Bau m. 272 Co. V. . . . 345 Be, Cooper v. Vesey . 139 Hadgett v. . 423 Be, Ex parte Hall . 296 Onslow V. . 397 iZe(1913, ICh. 350) . 416 Compagnie Industrielle des V. Chitty . 17 Petroles, Be . . 38£ ,386 V. Cooper . 531 Companhia de Mo(;ambique Davidson v. . 178 V. British S. Africa Co. 21 EdAvards v. . . 434 Comptoir d'Escompte de EUesmere Brewery Co. v. 247 Paris, Roger v. 89 V. Griffin . 343 C'ompton, Re . . . 487 Haynes v. . . 65 Peter v. . 185, 186 , 187 Hill t;. . . 578 Comi^troUer-General of Pa- V. Kendall . 182,600 tents, Eastman, &c., Loveridge v. . 613 Co. V. . . . 385 V. Macdonald . 506 — R.v 357 Roberts v. . . 542 Conduitt V. Soane 396 V. Shepherd . 93 Conelly v. Steer . 632 V. Willomatt . 59 Congrcve v. Evetts 100 V. Woolfit . . 150 Conibeer, Be . . . 295 Cope, Be . . . . 484 Conrad, Guild v. . 185 Holder v. . 574 Consolidated Banlv, Badeley V. Rowlands . 191 V 252 ,470 Waugh V. . 601 Consolidated Car Heating Copis V. Middleton . 246 Co. V. Carne 351 Copland, Edmondson v. . 255 Consolidated Co. v. Curtis 5 3,54 Coplc}- V. Bradle}' 54,94 Consolidated Credit Corpora- Coppen, Dingle v. 606, 609 tion V. Gosney . 636 Coppin, Dillon v. . 70, 437 Tomlinson v. 638 ■ — — V. Lloyd . 363 Consolidated Exploration Co. Thrustout d. Levick V. 485 V. ilusgrave 192 Corbet, E^er v. . . 494 Constable v. Constable 401 Cordell, Elliott v. . 540 Constable's (Sir H.) case 51 Cordwell's Estate, Be . . 610 Constancia, The . 130 Cork Steamship Co., Ld., Constantine, Burgis v. 120 Dennis & Sons, Ld. v. , Addenda Wellock V. . 53 Corles, Dipple v. . . 180 Constantinidi v. Coixstantundi 582 Cornforth v. Smithard . . 182 Cook, Bittlestone v. 271 Cornmell v. Keith . 431 Bracebridge v. 535 Cornthwaite v. Frith . . 441 Castelli v. . 132 CornwaUis, Lassells v. . . 406 V. Fowler 215 Corpn. of Scarborough V. V. Gregson . 221 Butler . . 258 Jakeman v. . 183 Corrance v. Corrance . . 582 Skene v. . . . 602 Corsellis, Be . 425 V. Wright . 181 Cory v.- 0\\'ners of the Mecca 259 Cooke, Boucas v. . 375 Cottee, Knott v. . . 426 V. Charles A. Vogeler Co. 267 Cotterell, Shardlow v. . . 187 Freman v- ■ 588 Cotton, Ex parte . . 635 V. PuUer 579 Be . 416 Maskelyne v. 261 Campion v. . . 181 Stones V. . . . 578 R.V.. 13 Cookson V. Cookson 455 Coulson, Caine v. . . 256 Duke of Somerset r. . 20 Countess of Lauderdale, The 132 — — V. Rea}' 420 County of Durham Elec- V. S\vire 623 trical, &c., Co. V. Inland Coombs V. Coombs 517 1 Revenue Commissioners . 83 INDEX TO CASES CITED. XXVU PAGE ] PAGE Couper, British, &c., Finance Crofton V. Poole . 300 Corporation v. . . 333 Crofts, Parton v. . 84 Courage, Baker v. . 601 Crompe, Martin v. 454 Court of W'ards, Molhvo, Crom^jton, Shaw v. 603 March & Co. v. . 470 Cronmire, Ee 570 Courtenay v. Williams 608, 610 Croockewit v. Fletcher 178 Cousins, Goodlock v. . 26 Crook V. Hill 510 ,511 Couston, Ee . 113 — HiU V. . 510 Coveneigh, Dawkes v. . 55 — ■ — V. Morley 271 Coventry v. Chichester . 506 Croom, Ee . 277 V. Coventry . . 431 Crosby v. Leng . 55 Coverdale v. Eastwood . 181 V. Wads worth 152 Co\\an V. Carlill . . 252 Cross, Ee . . . 319 V. Milbourn . . 196 Ee, Ex parte Payne 272 Coward and Adam's Pur- Lotan V. 61 chase, Re . 579 Lyttleton v. 220 Cowburn, Be, Ex parte Firth 629 V. Sprigg . 2o8 Cowell V. Simpson 64, 67 Crossley v. Dixon 3()3 Cowern v. Nield . . 174 V. Dobson . 461 Cox, Ee . 509 Pennington v. 255 V. Bennett . . 564 Crossley Bros., Ld. v. Lee 104 (I), Bow ser v. . . 248 144 146 V. Harper . 107 Crossman v. R. . 444 V. Hickman . 470, 472 Crouch V. Credit Foncier 204 .343 Cox Moore v. Peruvian V. Martin 36 Corpn., Ld. . 345 Croughton's Trusts, Ee 550 Coxw ell, Wilson v. . 234 Crow V. Robinson 321 Craddock, Lake v. . 454 Croxton v. May . 539 Cradock v. Piper . . 425 Croydon Canal Co., Hodges v. 606 Craig, Downes v. . . 167 Cruttwell V. Lye . , 391 Nurse v. . 575 Cubitt, Stansfield v. 113 ,624 Crallan v. Oulton . 610 Cublcy, Pigot v. . 5 7,59 Cramer v. Moore . . 431 Cuenod v. Leshe 544, 545 570 ,579 Crane v. Ormerod . 588 Cuffe, ife . 524 Cranefeldt, Freake r. 608,611 CuUen V. Knowles 454 Cranle_)- v. Hillary . 264 Cullingworth v. Lloyd . 264 Cranraer's case . 505 Cullwick V. Swindell . 143 Cranwell, Blisset v. . 457 Culverhouse, Ee . 484 Cratchley, Clissold v. . 254 Cummings v. Stewart . 361 Craven, Ex parte . . 296 Cundy v. Lindsaj- 198 586 .590 Landauer v. . 311 Cunningham, Ex parte 273 Crawcour v. Salter . 113 V. Antrobus . 540 Crawford, Buckley v. . 229 Dillon V. 230 Crawford's Settlement, Ee . 581 Cuno, Ee . . . 558 Craythornc v. Swinburne . 247 Cunynghamc v. Thurlow 412 Crealock, Heath v. . 139 Cureton, Bill v. . 439 Crcars v. Hunter . . 181 Curl V. Webster . 392 Credit Co. v. Pott . 629 Curling v. Flight . 618 Credit Foncier, Crouch V. 204,343 Curre, Bolton v. . 428 Creed v. Perry . 542 Currey, Ee . 432 ,549 Cresswell, Coope v. . 604 Wilmer v. . 461 Creyke, Dawes v. . . 578 Currie v. Anderson 81 Crick, Carter v. . . 594 V. McKnight 126 ,127 Crimdon, The . 126 V. Misa 180 Cripps r. Hartnoll . 185 Wotherspoon v. . 390 Cripps & Co., Ee . . 294 Curtis, Consolidated Co. t . 5 3,54 Crispin, Doglioni v. 480, 522 Worthington ?'. . 306 Cristall, Ferguson v. 54,58 Cusack V. Robinson . 81 XXVlll INDEX TO CASES CITED. Custance v. Bradshaw , Cutbush V. Cutbush Outfield, Wardroper v. Cutler, Ee . PAGE 455 409 400 539 D. Daglish, Ex parte, Re Wild . Daintrey, Ee . .271 Dalby, Cheslyn v. — ■ — V. India and London Life Assurance Co. . Dale, Drayton v. . Dallas, Ee . . . 013 Dalton, Ee . Oakey and Sons v. Daly, Aubin v. . Dalzell, Lynch v. . Danby, Trimmer v. . 400 Daniel v. Dudley . Hunter v. . Kirwan v. . Daniel's Trust, Ee Daniels, Birstall Candle Co. v. Dann, Ex parte, Ee Parker Danubian Sugar Factories, Ld. V. Inland Revenue Commrs. . Darby v. Darby . V. Harris Daring, The Darley v. Tennant Darling, Finlay v. Darlington District Stock Banking Co parte Darlow, Hickson v. Darnell, Birkmyr v. Darnford, Ozard v. Darrali, Hales v. . Darrell v. Tibbitts Dartmouth (Lord), Howe v 625 290 188 306 300 615 563 165 312 308 430 403 193 441 431 109 272 . 172 . 455 104 (I), 146 . 130 . 605 . 432 Joint , Ex 630 Darton, Moore v. Dashwood v. Magniac Norton v. Daubeney v. Cockburn Davall, Lamond v. Davenport, Ee Elliot V. . . 403, V. Marshall . Daveron, Ee Davey v. Williamson . 27, David and Matthews, Ee David Moseley & Sons, Dun lop, &c., Co. V. Davids, Jones v. 473 ,633 185 575 505 308 221, 314 482 153 143 412 92 558 511 430 420 HI 391 351 246 Davidson, Ee V. Carlton Bank V. Cooper Davidsson v. Hill Davies, Ee . V. Ashford . Busk V. i;. E. of Dysart Evans v. V. Humphreys V. Jenkins . V. Makuna . V. Penton V. Perry V. Kees V. Stainbank V. Vernon Davies' Policy Trusts, Ee D'Avigdor, Roope v. Davis, Ee Bateman v. Bennet v. Betterbee v. V. Bowsher . V. Burton V. Davis Entwistle v. V. Freethy . Godfrey v. . V. Cioodman V. Harris V. Hutchings V. Petrie Pitchford v. Shipley V. ... 78 V. Usher . . .638 Davis & Co., Ee . . . 199 Davison, Whitehorn v. . 590 Davy, Champney v. . . 509 Dawber, Foster v. . . 259 Dawes, Bland v. . . . 547 V. Creyke . . .578 V. Peck ... 82 V. Tredwell . . .431 Dawkes v. Coveneigh . . 55 Dawson v. Beeson . . 392 V. Dawson . . . 506 V. Great Northern & City Ry. Co. . . 40, 169, 200 — Labouchere v. . 391, 392 Pearson v. Rhodes v. . . . 275 Row V. . . . 36 Day, Baring v. . . .63 Hulkesw. . . .321 Palmer v. . . . 290 Wallisv. . . .194 PAGE . 420 . 634 . 178 . 164 . 497 . 420 . 78 . 141 . 49 . 248 . 637 . 192 . 215 . 519 95, 636 . 248 65, 139, 141 . 307 . 55 . 602 . 418 546, 548 . 256 . 64 . 636 . 471 . 507 . 252 509, 510 . 630 104(1), 111 427, 428 261, 292 327 INDEX TO CASES CITED. XXIX Dean, Re Higginson & V. Hogg V. James Deane, Royal AVarrant Holders Assn. v. Deare v. Soutten Dearie v. Hall De Bathe, AVcldon v. B. 1 K. B. 2 K. B. PAGE 598 134 256 . 383 . 574 38, ()13 . 502 Debenham v. Mellon 545, 572, 573 De Blacquiere, Hunt v. 574, 579 Vandergucht v. . De Braam v. Ford Debtor, Re & (1898, 2 Q 576) Re a (1905, 1 K. B. 374) Re a (1908, 344) Re a (1908, 684) Re a (1909, 1 K. B. 430) Re a (1912, 2 K. B. 533) Re a (1912, 3 K. B. 242) i?e a Judgment (1908, 2 B. 474) De Bulmes, Montgomery v. De Burgh Lawson, Re . De Castro, Willis v. De Clifford's Estate, Re Deddington Steamship Co., Ld., V. Inland Revenue Commrs. .... Dedire, Freemoult v. . Dee Estates, Ld., Re . Decks V. Strutt . Deelcy v. Lloyds' Bank, Ld. Deen, Carpenter v. Deerhurst, Seaton v. . Deering v. Carringdon De Falbe, Re . 144, 148, 149 De Fries, Masson, Templier & Co. V. . . . 535, 558 Defries v. Milnc . 40, 169, 201 K. 578 637 267 230 270 290 292 270 270 230 568 463 428 125 433 66 36 260 634 219 35 Re Defries & Sons, Ld Deg V. Deg . De Greuch}' v. Wills . De Hoghton v. Money De La Crouce, Hambidge v. Delafield, Boucicault v. De la (larde v. Lenipriere Delamirie, Armory ?'. 48, 51, 54 Delbridge, Richards v. . 27, 70, 97, 435 Delhasse, Ex parte. Re Mege- vand . . . 470, 471 257 221 556 169 474 373 539 PAGE . 597 96, 100 . 581 . 464 197, 265 . 299 Dell, Miller v. Delobbel Flipo, Morris v. De Lossy v. De Lossy . De Mautort v. Saunders Denby, Atkinson v. Dennis, Re . Dennis & Sons, Ld. v. Cork Steamship Co., Ld . Addenda Denny, Flory v. . . 75, 95 Dent, Macmillan v. . . 374 Denton, Fairlie v. . . 32 Denton's Estate, Re . . 247 D'Epineuil (Count), Re . 99 De Pass, Lj^ons v. . . 589 ■ ^VinalltJ. . . .252 De Proven, Duplex ?;. . . 227 Derbj^shire, Re . . . 240 De Ros' Trust, Re . 431, 432 Dering v. Earl of Winchelsea 247, 461 . 292 65, 66 . 412 . 189 259, 465, 469 . 497 Rail. Desanges, Thomas v. Desart, Blunden v. Desbrisay, Fearon v. Devaux v. Steinkeller Devaynes ik Noble Devereux, Re ■ — — v. Kilkenny, &c. Co. . . ■ . Deverges v. Sandeman De Vitre v. Betts Dewdney, Ex parte Dewhurst, Chanter v. Dias Santos, Colegravc Dibb V. Walker . Dickinson i\ Dilh^yn V. Dodds V. Kitchen . Orr V. . V. Teesdalc . Dicks V. Yates Dickson, Re Dictator, The Diestal v. Stephenson Diggs, Andrc\\s v. Dilkes V. Broadmcad Dillon, Re . V. Coppin V. Cunningham Dillwyn, Dickinson v. Dimbleby, Brown v. Dingle v. Coppen Dipple I'. Corles . Diprosc. Johnson v. Discoverers, &c., Ld., Rr Disney, Bolland v. Dive, Re . . . Dix I'. Burford 57, 329 341 . 366 . 609 . 363 . 143 . 604 . 430 . 175 . 123 . 124 . 610 . 384 . 416 126, 127 . 214 . 232 114, 115 . 482 70, 437 . 230 . 430 . 564 606, 609 . 180 94. 637 . 338, 339 . 305 427, 428 . 426 XXX INDEX TO CASES CITED. Dixie, Wood v. Dixon, Ex parte . ■ Re V. Clark ■ Crossley v. . Duncan v. . Fisher v. Juson V. V. London Small Arms Co. Lucas V. Mangles v. . Steel V. V. Yates Dobree, Att.-Gen. t Ruddell V. . Dobson, Crossley v. Stocks V. Dodd V. Browing V. Dodd Lewen v. Dodds, Bullock v. Dickinson v. Doe d. Birtwhistle v. Vardill d. Esdaile v. Mitchell , d. Stace v. Wheeler Doglioni v. Crispin Doleman, Chadwick v. . Dollond V. Johnson Kensington v. Doman, Haj-nes v. Dominj' , Thompson v. Donald v. Suckling Donaldson v. Beckett . V. Donaldson Doncaster v. Doncaster Donellan v. Read Donnis, Edwards v. Doorman i'. Jenkins Dorin v. Dorin Dormer v. Ward . Dorrien, Lucas v. Dorril, Routledge v. Dott, Bonnard v. Douglas, Churton v. V. Douglas . Mackay v. . — — V. Russell . Douglas, Norman & Co., lie Dover v. Alexander Dover, Ld., v. Niirnberger, &c., AYolff Do\\ biggen v. Bourne . Dowden v. Pook . Dowding's Settlement Trusts, Be Dowling V. Betjemann Downe i\ Fletcher PAGE . 116 . 263 . 237 255, 256 . 363 174 149 106 . 354 . 83 37, 38 . 247 78, 86, 89 . 445 . 483 . 461 . 37 . 27 . 580 . 457 . 168 . 175 480 292 . 486 480, 522 . 410 227, 235 . 547 . 195 . 134 54,58 . 369 437, 439 . 401 186, 188 . 382 . 60 . 510 . 582 . 74 413 197 391 481 434 134 67 510 380 246 195 430 20 556 411 PAGE Downes v. Craig . . .167 V. Jennings . . '. 545 Do\Miman, Motley v. . . 383 Downs, England v. . . 545 Drake, Ex parte, Be Ware 15, 93, 588 Beckham v. . 168, 464 London & AA'estminster Loan and Discount Co. v. 148 Drayton v. Dale . . .300 Dresel v. Ellis . . . 564 Drew V. Nunn . . . 573 DrewTy v. Thacker . . 496 Driffield, Leak v. . . . 563 Driscoll, Watts v. . . 460 Driver v. Broad . . . 345 V. Mawdeslcy . .441 • Pooley V. . 468, 470—472 V. Scott . . . 426 Drummond, Evans v. . . 469 M'Leod V. . . . 494 V. Parish . . .478 V. Van Ingen . . 595 Drummond's case . . 335 Drury Buildings Estate Co., Nicholson v. . . . 579 Druyff. Hume v. . . .231 Dry, Bagwell t;. . . 511,513 Drybutter v. Bartholomew . 327 Drysdale, Nevin v. . . 506 Du Bocket, Be . . .510 Dubost, Ex parte ... 70 Dubo^^■ski v. Goldstein . 194 Duck V. Bates . . . 377 V. Mayeu . . .460 Dudley, Daniel v. . . 403 V. Warde . . .149 Duff V. East India Co. . 473 Gordon v. . . 503 Duffield V. Elwes . . 258, 482 Potter V. . . .187 Duffy's Trust, Be . . 540 Duigiian, Ex parte, Re Bissell Duke of Bedford, The Duke, Sheppard v. Dulancy v. Merry Duncan, Be . V. Dixon — — V. Garrett . V. Lawson . Duncan, Fox & Co. v. North and South Wales Bank Duncombe v. Brighton Club Co. . . . . 245 Ward V. . 38, 613, 615 Dundas v. Blake . . . 610 w. Dutens . . 42,321 . 270 129, 130 . 602 . 261 . 166 . 174 . 30 480, 523 207 INDEX TO CASES CITED. XXXI PAGE Dunganiion (Lord), Kcr v. . 395 Dunham, Mills v. . . 194 Dunklc\- V. Dunkley . . 539 Dunkley & Son, Be . . 293 Dunlop Rubber Co., Ld., William Brandt's Sons & Co. V. . . . 40, 438 Dunlop, &c., Co. V. David Moscley & Sons 351 Dunn, AVood v. . 253 Dunnicliff v. Mallett 43 457 Dupleix, The 126 127 Duplex V. De Proven . 227 Duppa, Be . 500 Durant, James v. 431 V. Prestwood 525 Durham v. Robertson . 39 458 Dutens, Dundas v. 42 ,321 Dutton V. Morrison 261 V. Thompson 440 Dyer v. Pearson . 23 Dyke v. Walford . 516 Dysart (Earl of), Da vies r. . 141 E. 433 199 570 265 575 588 473 608 Eardlej' v. Owen . Earl V. Lubbock . Earle v. Kingscote Mare v. Earnshaw v. Earnshaw Eastgate, Be East India Co., Duff v. Murray v. . East and West India Dock Co., Clvn. Mills & Co. v. . Eastland V Burchcll . 574,575 Eastman, &c., Co. ?'. Comp- troller of Patents Easton v. London V. London Joint Stock Bank .... Eastwood, Coverdale v. V. Kcnjon . Eaton V. Southbv Ebbern i\ Fowler Eccles V. Chcyne . Ecclesiastical Commissioners V. Upjohn . Addenda 74 385 141 344 181 180 20 510 512 V. Wodehousc E. Clemens Horst Co., Bidden 1^. Economic, &c., Society v. L^sboriie .... Economic Bank, Akrokerri Mines v. . Eddowes, Kirk r. 166 311 226 206 507 Eddystone Marine Insurance Co., Be ... . Edelstein v. Schuler EdeLsten v. Vick . Edgcome, Be . . . Edgeberry v. Stephens Edison Bell, &c., Co., Ld., National Phonograph Co., Ld. V Edmonds v. Blaina Furnaces Co. . . . Goodtitle d. Richards v. — — V. Low Prosser v. . Edmondson v. Copland Edmunds v. Edmunds . PAGE 336 344 383 229 353 593 345 402 . 505 . 169 . 255 . 251. 252, 434 Edsun, Smarte v. . . 462 Edward Nelson & Co., Ld. v. Faber .... 345 Edwards, Be . . . 430 Be, Exparleiiaum . 168 Bailey v. . . . 248 Brereton v. . . 253, 325 V. Carter . . 173, 554 V. Cooper . . .434 V. Countess of Warwick 399 V. Donnis . . . 382 V. Freeman . . . 520 ■ • V. Hall . . .507 f. Harben . . .115 V. Hood-Barrs . . 463 V. Jones . 70, 436, 483 V. Marcus . . .631 V. Pearson . . . 595 V. Picard . 43, 392 Saunders v. . . . 599 V. Tuck . . .448 ■ r. Walters . . 258,259 V. Weokes . . .258 Whiteley v. . . . 563 Woodham Smith v. . 230 Egerton, Beard v. . . 353 Headt;. . .139 Egginton, Simpson r. . . 255 Egmont's Settled Estates, Be 449 Egmont's Trusts, Be . . 449 Ehrlich, Hanan v. . 186, 187 Ehrman v. Bartholomew . 194 Ehrmann Bros., Hunt, &c., & Co. V 389 Eichholtz V. Bannister . 595 Eilbeck, Be . . . .240 Elcom, Be . . .543 Electrical Enginecrmg Cor- poration, Brunton v. . 345 Eley, Cole v. ... 65 Elgood, Saffcry v. . .105 XXXll INDEX TO CASES CITED. PAGE Elibank (Lady) v. Montolieu 539 (Lord), Murray v. 539, 540 Elin, The . . . 127, 130 Eliza Cornish, The . 129, 132 EUenborough, Re . 99, 438 Ellens, The Two . . .131 Ellesmcre Brewery Co. v. Cooper Elliott, Ex parte Holson, Ld, Re . In the goods of Bishop V. ■ V. Cordell V. Davenport V. Ince • Lyons v. V. Merriman Myers v. V. Yates Ellis, Ex parte. Re Ellis Boutts V. Dresel v. V. Glover & V. Houston Ellis's Settlement Ellis's Trusts, Re \ Ellison V. Ellison V. Elwin V. L3'ddon Elmore v. Stone Elsee, Bloxham v Elton, Ex parte Oilman v. Elvy V. Norwood Elwes, Duffield v. V. Maw Elwin, Ellison v. Embericos v. Anglo-Austrian Bank .... 25 Emden v. Carte . 199, 300, 301 Emma Silver Mining Co. v. Grant .... 289 Emmett v. Norton . . 575 Empire Palace, Hanfstaengl V 43,372 Empress, The Enderby, Brooke v. England, The England, Re V. Downs King V. . . . English & Colonial Syndicate, Pritchett v. . . . English & Scottish Law Life Assurance Assn., Wigan v. English, &c.. Investment Co. V. Brunton . . 345, 613 Englishman, The, and The Australia .... 461 . 247 . 55 . 579 . 149 . 540 403,511 . 102 104 494 636 106 272 482 564 143 . 510 . 430 . 550 70, 438, 439 . 541, 5-54 . 410 72, 73 . 392 . 466 104 (I) . 606 . 258, 482 . 144 541,554 . 132 . 469 132 603, 604 . 545 67 252 181 PAGE Ennis, Sutton v. . . . 400 Enohin v. Wylie . . . 522 Entwistle, Cochrane v. . 637 V. Davis . . . 507 Equitable Reversionary In- terest Society, Burnaby v. 458 Errat v. Barlow . . .415 Erskine's Trust . . .539 Esgar, Chapman v. . .221 Espinasse, Petre v. . . 439 Esposito V. Bowden . .190 Essex (Earl of), Cadogan v. . 418 Cockerell v. . . . 402 Ether ington v. Parrott . 572 Ettricke v. Ettricke . . 457 Etty z\ Bridges . . 319,616 European Co. v. Royal Mail Co 123 Eustace, i?e . . 115,609 Evans, Re . . . .302 Berrington v. . 227, 433 Biggs V. . . .23 Bowker v. . . . 171 V. Bremridge . . 463 V. Davies ... 49 V. Drummond . . 469 Field?;. . . .549 Leggt;. . 54,67,107,588 Mercantile Bank London v. V. Nichol V. Rival Granite ries, Ld V. Roberts • V. Scott Stevens v. V. Stokes Watkins v Wegg-Prosser t Wilkinson v. V. Williams V. Wills Eve, Re Everall, Holt v. Everard, Gough v. Walter v. Everett, Eyre v. Rutter V. Evershed, Wallace v. Evetts, Congreve v. E. AV. A., Re Ewer V. Corbet . Ewington, Pickford v. Exchange Telegraph Co. v. Gregory . E^'re V. Bartrop V. Everett ' ■ Hutton V. of 39 54 Quar- 345, 346 151, 152 . 415 . 105 . 330 . 636 226, 460 . 83 . 227 . 229 . 510 . 307 . 72 . 174 . 249 . 614 . 345 . 100 . 463 . 494 . 37 369 248 249 46Q INDEX TO C ASES CITED. XXXlll PAGE PAGE Eyre, Ward v. 24.5 Ferrar's case 335. 336 Eyres v. Faulkland 395 Festing v. Allen . . 404 Fettiplace v. Gorgci . 547 Fewings, Ex parte . 226 F. Fiat Motors, Ld., Re . 368 , Bristol, &c., Co.. Ld. V. 596 Faber, Bateman v. 548 Field V. Evans . 549 Ed. Nelson & Co. V. Megaw . 37 Ld. V. . . . 345 Schauer v. . . 380 Fairley v. At t. -Gen. 446 Yea V. . 138 Fairlie v. Denton. 32 Fielden, AVestmorelanc , &c., Faithful!, Ee 270 Co. V. . 340 Falk, Kemp v. 90 Fielder, Proudley v. . 547 Falkner v. Butler 410 Field wick. Re 563, 568 — — - Gorton v. . . 1 01 (n) Figg V. Moore 109. 293 Farebrother v. Simmons 84 Findlater, Siegert v. . 389 Farina v. Home . 74,82 Fine Cotton, &c., Assn. Har- Farmer, Green v. . 257 wood V. . . 390 Farnham, Re . 2( )8, 294 Finlay v. Chirnej' . 163 Farquhar, Re 477 V. Darling . . 432 M'Queen v. . 412 Finney, Foden v. . . 538 Farquharson v. Cave . 483 Firmin v. Pulham . 426 V. King . 586, of J7,591 Firmstone, Bainbridge V. . 181 Farr, Meredith v. 510 Firth, Ex parte. Re Cowburn 629 V. Newman . 485 Fisher v. ApoUinaris Co. . 1 92 Farrant v. Thompson . U 19, 588 V. Dixon . 149 Farrcll, Jones v. . 37 V. Roberts . . 207 Farren, Kemble v. .2 4,215 V. Shirlc}' . . 430 Faulder, Harper v. 140 V. Smith 64 Faulkland, Eyres v. 395 Fitch V. Jones 195,212 Faulkner, Bull v. . ()() V. Sutton . 256 Johnson v. . lOi (e [), 105 Fitzgerald v. Chapman . 581 Fauntleroy v. Beebe . 420 Fitzhardinge v. Purcell 50, 156 Favre, Bloxham v. 480 Fitzroy v. Cave . 35, 39, 200 Fear v. Castle 557 Flemine v. Buchanan . 406 Feara, Polgrenn v. 141 Griffiths V. . 305. 306 Feari.«, Hill v. 391 ■ Lloyd V. . 311 Fearnhcad, KnatchbuU v. 498 Lord Advocate v. . 444 Fearnside v. Flint 603 V. Smith . 168 Fearon, Busk v. . 135 Fletcher, Ex parte . 614 V. Desbrisay 412 Re . 505 Feather v. The Queen . 354 V. Ashburner . 419 Peatherstone v. Hutchinson 196 V. Collis . 428 Felce, Att.-Gen. v. 493 Croockewit v. . 178 Fell, Sinclair v. . 580 Downe v. . 556 Fells V. Read 20 — — Lech mere v. . 188 Felthouse v. Bindley . 176 Flew. Re . 277 Fenning, Stainbank v. . 1. >8, 129 Flight, Curling v. . 618 Fennings v. Lord Grenvilh ^ 50 Flint V. Barnard . . 219 Fenton v. Blythe . 632 Fearnside v. . 603 V. City of London St can Jones V. . 152 Packet Co. . 134 FlintofF, Horner v. . 215 Trueman v. . 182 Florence, Re, Ex paric Fenwick v. Begbie 625 Wingfield . . 113 t'. Greewell . . 427 Mulliner v. . 63.93 Ferguson v. Cristall 54,58 Florence Land and 1 ^ublie Saintor r. . 214 Works Co., Re . . 345 Fernie, Young v. . . 351 Flory V. Denny . 75,95 W.P.P. C XXXIV INDEX TO CASES CITED. PAGE Flower. Be . . . .41.3 Cannings v. . . .415 Flower's cave . . . 435 Fludyer, Re . . . 220 Foakes v. Beer . . . 25fi Foden v. Finney . . .538 Foley V. Addenbrookc . . 454 V. Burnell . . . 449 V. Hill . . .240 Paget V. . . . 605 Foljambe, Ogilvie v. . . 187 Follows, Be . . . 269 Fooks, Pride v. . . . 426 Foong Tai v. Buckmeister . 131 Footman, Blank v. . . 380 Forbes v. Jackson . 246, 247 Ford, Be (1900, 1 Q. B. 264) 293 i?e(1902, 2Ch. 605) . 525 • De Braam v. . . 637 V. Kettle . . . 631 V. Peering . . . 140 • Wilson V. . . . 574 Forder, Bazeley v. . . 574 Forester, Upmann v. . . 383 Forster v. Baker ... 39 Fort, Be . . . .472 Fosbrooke, Bourne v. . 51, 70 Foster v. Bates . . .518 V. Cautley . . .408 V. Dawber . . . 259 Haynes v. . . . 554 V. Mackinnon . . 198 V. Pearson . . . 590 V. Weston . . . 245 Fothergill, Hardy v. 199, 219, 289 ■ — — V. RoA^land ... 20 FothergilFs Estate, Be . 449 Fountaine, Be . . . 428 Fourdrin v. GoA\dey . . 505 Fourdrinier, Ex parte, Be Artistic Colour Printing Co 624 Foweraker, Simultaneous, &c., Syndicate z;. . .111 Fowkes V. Pascoe . 439, 507 Fowle, Stonor v. . . . 230 Fowler, Be, Ex parte Brooks 112 Cook V. . . . 215 Ebbern v. . . . 510 V. Fo^^ ler . . . 505 HoUins V. . . . 53 Marshall v. . . . 539 Fox, Be . . . .603 Barber v. . . . 236 V. Clifton . . .327 Freakley r. . . .487 Lowe V. . . . 562 Millington v. . . 383 Fox, Webb v. Fox & Jacobs, Be Foxall, Phillips v. Foxley, Ex parte. Be Foy, Montgomery v. France v. Clark . V. Gaudet . Francis v. Grover V. Hawkesley V. Viner Frankland, The . Franklin v. Bank of En V. Hosier Major V. V. Neate Franks, Ex parte . Eraser, Be (L. R. 1 P 327) PAGE . 300 . 291 . 248 Morse 272 . 64 57. 340, 341 . 93 gland 605 182 512 461 323 63 . 385 30, 57, 59 . 267 & D. . 521 J?e(1892, 2Q. B. 633) — — Henthorn v. Mather v. V. Murdoch . V. Palmer Frazer, Oppenheimer v Freake v. Cranefeldt Freakley v. Fox . Frecker, Norton v. . . 609 Freeland v. Pearson . . 512 Freeman, Ex parte . . 467 Edwards v. . . . 520 V. Lomas . . . 257 V. Pope . . . 434 Freemoult v. Dedire . . 433 Freestone v. Butcher . . 572 Freeth. Bourne v. . . 327 Freethy, Davis v. . . 252 Froke v. Lord Carbery . 480 Freman v. Cooke . . . 588 French, Be . . . .274 Claugh V. . . . 233 Frere, Thomason v. . . 456 Freshfield's Trust, Be . . 613 Freshney v. Carrick . .113 Friar, Grey v. . . . 238 Fripp, Hunt v. . . . 300 Frisby, Be . . . . 603 Frith, Cornthwaite v. . .441 Fritz V. Hobson . . .160 Froglev, Be . . . .510 Frost, 'i?e . . . .287 V. Aylesbury Dairy Co. 596 Frowd V. Frowd . . .580 ■ Moore v. . . . 425 Fruhauf v. Grosvenor . . 208 Fry, Ex parte . . . 467 V. Smellie . , .341 271, 468 . 176 143, 625 . 469 . 425 . 23, 587, 592 608,611 . 487 INDEX TO CASES CITED. XXXV Fryer, Ex parte . Fryman's Estate, Re . Fuente's Trade Marks, Re . Fugale V. Bland . . 450, Fulbrook, Tate v. . 372, Fullalove, Occleston v. Fuller, Re . V. Blackpool, &c., Co. Cooke V. V. Redman . • V. Redmond Fullerton v. Provincial Bank of Ireland Fulton, Saxby v. Furber v. Cobb . Furlong, Barker v. Furness, Risdon, &c., Works White V. Furniss v. Leicester Fyfe V. Arbuthnot G. Gadban, Musurus Bey v. Gaffee, Iti re Gainer, Barton v. Galbraith v. Grimshaw Gale, Blake v. . .11 ■ • V. Burnell . Griffiths V. . V. Walsh Gallagher. Johnson v. Galsworthy, ChidcU v. V. Strutt Games, Ex parte . Gammon, Bird v. Gandell, Rodick v. Gandy v. Gandy (.30 Ch. 1), 57) . 199, V. — (7 P. D. KiS) Garden, White v. Gardiner, Re Archer v. Thompson v. Gardner v. Gardner V. Garratt . ■ Gurnell v. . V. Iredale V. London, Chatham & Dover Rail. Co. V. Marshal] . Pearce v. ■ Prested Miners C( Gardom, Ex parte Garland, Ex parte Gamer v. Hannyngton PAGE . 230 244 (b) 383 514 374 510 425 372 579 609 227 181 212 (i36 53 3.38 G4 594 99 600 549 258 252 498 ,99 512 208 .546 100 214 272 188 37 584 584 590 562 539 84 548 496 37 337 345 .539 187 85 473 469 140 Garner, Ld., Prested Miners PAGE Co. V. ... 188 Garnet, Pierson v. . 410 Garnett, Holroyde v. . . 229 Garrard v. Lord Lauderdale 441 Garratt, Gardner v. 496 Garrett, Duncan v. 30 Garwood's Trusts, Re . 460 Gascoigne, Sherrard v. 155 Gaskarth, Clark v. 104 (II) Gaskell, Huntley v. 481 Lee V. . . 146 14 7, 150 Gaslight & Coke Co. V Hardy 104 (I) Patterson v. 35 1,352 Gaters v. Madeley 537 Gatt^ard v. Knee 478 Gaudet, France v. 93 Gaunt, Speight v. 427 Gayler, Howell v. 403 Gaze, Love v. 513 Geake v. Ross 245 Geary, Baines v. . 194 Geaves, CavendLsh v. . 38 Gedge v. Royal Exchangf Corpn. 195, 196 Gee V. Gurney 412 Geen, Societe Generale d( Paris V. . 263, 264 Geisel, Robinson v. 461 Geldard, Robinson v. . 508 Gelmini v. Moriggia ()00 Gemma, The 125 General Horticultural Co. ,R Ex parte Whitehouse 252 General Smith, The 127 Genese v. Lascelles 230 Gent V. Harris 539 Gentry, Re . 274 George, Re . 416 Agar V. 431 V. Howard . 439 Pitts V. 376 Gerard v. Lewis . 35 Gory, Humphrey v. (505 Gcstetner's Trade Mark, Re 385 Gibbeson, Greenham v. 418 Gibbins, Betts v. 461 Gil)bon, Re . 448 Kempe v. 604 Gibbons, Bro\\Tie v. 599 Gibbs, Lindsay ;;. 135 — — National Society, & C. V 3(i0 Giblin V. McMullen - . (iO Gibson, Banks v. 391 V. Hammersmith Ry Co. 146 V. Minet m 9,201 c2 XXXVl INDEX TO CASES CITED. PAGE 1 PAGE Gibson, Wilkinson v. . 577, 58] Goctz, Jonas & Co., Be 614 Gidley, Bolitho v. 563 Gold Coast, &c., Ld., Smith v. 185 Gieve, Be . . 195 Golding, Davis & Co., Ex Gifford, Ex parte 248. 463 parte .... 89 Nugent V. 494 Goldschmidt v. Ober- Gilbert, ffe . 487 rheinische Metallwerke . 253 V. Lewis 547 Goldsmid v. Goldsmid . 411 V. Overton . 437 Goldstein, Dubowski v. 194 Richardson v. 375 Goldstrom v. Tallerman 636 Gill. Be . . . 517 Gokh\ in, Chambers v. . 415 — V. Shellej' . 510 Golf Agency, Nisbet & Co. v. 374 Weiner v. 79 Gomley v. A\'ood . 425 Gillard, Bartlett v. 505 Gomme, Hill v. 498 Gillespie J Be 290 Goode V. Burton . 139 Campbell v. 429 Gooden v. Gooden 578 V. Cheney . 596 Goodfcllo^^• v. Prince . 389 Gillette, &c., Co. v. Li na. Goodlock V. Cousins 26 &c., Co. . 360 Goodman v. Chase 185 Gillingham v. Beddow . 392 Davis V. . . . 630 GUman v. Elton . 104 (I) 1 — ■ — V. Harvey . 590 Gilmour v. Supple 78 V. Robinson 251 Ginger, Be . 113 Goodman's Trusts, Be . 523 Girdlestone, Watts v. . 426 Goodson, Haly v. 132 Gist, Be . . . 526 Goodtitle d. Richards v. Ed- Gladstone v. Padwick . 108 116 monds . . . . 402 Glanvill, Be 564 Good^^•in v. Robarts 25, 344 ,591 Glasdir Copper Works, Ld.. Goodwin & Co., Ld., Laden- Be . 144 148 burg V. . . . . 250 Glasgow, The 129 132 Goom V. Aflalo . 84 Glasgow, &c., Investment Gordon, Capital & Counties Society, Westminster Fire Bank v. 206 Office V. . 309 V. Duff 503 Glasscock v. Balls 209 ■ V. Gordon (15 R. R. 88) 510 Glasspoole v. Young . 588 V. (1904, P. 163) . 564 Gledstane v. Hewitt 16 GA\"vthor V. 184 Glegg V. Bromley 40, 99 169, 170, V. Harper 17, 23, 54, 55, 58 "181,201 ,252 ,438 Jones V. . . . 590 Glendinning, Ex parte . 264 — ■ — Nanson v. . 466 — — Hope V. 64 Norcott V. . 505 Glengall (Earl of) v. Barnard 506 V. Silber 63 Glejiton, Barnes v. 600 Gorele}^ Ex parte ?09 Glenville v. Sclig, &c., Co. . 377 Gorges, Fettiplace v. . 547 Gloahec, Pease v. 85 ,590 Gorgier v. Mieville 344 Glossop, AVilson v. 574 ,575 Gorrie, Graves & Co. v. 370 Glover & Hobson. L( . V. Gorringe, Hobson v. 143 Ellis . . ■ . 143 V. Ir\\cll India Rubber Glubb V. Att.-Gen. 509 Works . . 37 Ghm, Mills & Co. v. East and Gorton v. Falkner . 104 (ill West India Dock Co. 74 Gosling. Bateson v. 248 Glynne v. Thorpe 233 Gosman, Be . . . 245 Goddard v. O'Brien 257 Gosney, Consolidated Credit Shears v. 293 Cpn. V 6P6 ■ V. Snow 545 Goudie, Be . 514 Godfrej% Byrn v. 258 Gough V. Everard 72 V. Davis 509 ,510 V. Wood 25 V. Turnbull . 469 Gould, Be . 303 Godsall V. Boldero 306 Weldon v. . 64 Boss V. 418 Goulder v. Camm 549 INDEX TO CASES CITED. XXXVll PAUK Gourlay, Be, Ex parte Abbot 109 Co. Government Stock, &c V. Manila Ry. Co. Gowan v. Wright Gowdej^ Pourdrin v. Grafftey v. Humpage Graham v. Graham V. Hope V. Johnson . V. Londonderry Mills V. Gramophone Co., Be V. Magazine Holder Co. Grant, Emma Silver Mining Co. V. . V. Grant Household Fire In- surance Company (Limited) v. V. Vaughan Grantham v. Hawley Granville, Blytho v. Grassi, Be . Gratitudine, The Graves & Co. v. Gorrie Graves v. Weld Gray, Be Barrow v. V. Chisuell V. Limericiv (Earl (jf) V. Mathias Roberts v. Rogers V. V. Smitli Gray & New Land, &c., Assn., Be . Graydon, Be G. E. Ry. Co. V. Lords Trustee Pulling V. Taylor v. Great Northern Railway Co V. Coal Co-operative Society . Harwood v. . Rym V. . . . Thairwali v. Great Northern & City Rail. Co., Dawson v. 40, 1()9, 200 G. \V. Rail. Co.. Jeffries V. . 51 Lady Aylesiord v. . 562 V. London & County Rank . 200, 207, 587 Rouch V. . . . 292 Shaw V. . . . (U Great Yarmouth, &c., Co., W estrupp V. . . . 131 Greaves, Att.-Gen. v. . . 507 . 345 . 232 . 505 403, 431 . 505 . 469 . 38 535, 530 16 . 385 380 289 238 170 34 98 431 480 135 370 151 504 35 465 410 . 192 Addenda (53 . 391 300 301 96 , 165 81, 85 639 351 163 255 PAGE Greaves, Shuttle worth V. 503 — ■ — Steward v. . 331 Greedy v. Lavender 542 Green, Be (2 De G. F & j! 121) . 499 (1911, 2 Ch. 275) 525 V. Farmer . 257 Hardy v. 99 433 V. Humphreys 600 Load V. 85 588 V. Marsh 629 Marshall v. . 150 152 Mathers v. . 457 Miller v. 104 (u) Price V. 190 212 ■ Stephens v. 613 616 V. Wynn 248 Green's Apphcation, Be 368 Greenham v. Gibbeson 418 Greening v. Beckford 616 Greenwell, Brett v. 539 V. Greenwell 415 Greenwood, Be . 505 Hickley v. . 634 Greer, Be 298 ■ V. Young 65 Greese, Richardson v. 505 Greewell, Fen wick v. 420 Gregg V. \Vells 25 Gregory, Exchange Tcle- graph Co. v. 309 • Muspratt V. . 105 Gregson, Be 424 Cook V. 221 Grenville (Lord), Fenningsw. 50 Gresham, Wiles v. 418 Grey v. Friar 238 V. Stuart 431 Grey's Settlements, Be 549 Grice v. Richardson 87 Griffin, Be . 436 438 Cooper V. 343 Lee V. 7! i, 83 Griffith, Ex parte, Be Wil- coxon . . . 290 Be . . . 400, 401 V. Hughes . . . 428 v. Ricketts . . 419,441 Griffiths Settlement, Be . 512 Griffiths V. Fleming . 305, 300 V. Gale . . . 512 V. Perry ... 80 CJrignion v. Grignion . . 30 Grimshaw, Galbraith v. . 252 Grimwade, Lound ^^ . . 196 Grissell, Be . . . .267 Groenings, Moul v. . . 380 Groome, Hetherington v. . 636 XXXVlll INDEX TO CASES CITED. CJroos, Re Gross, Buckley v. Grosvenor, Fruhauf v. Grote, Liinbard v. Grovcr, Francis v. Whittingstall v. Groves v. Clarke . V. Perkins . Grymes v. Bo^veren (;}uardian, The tiudgeon, Hopkins v. Guedalla, Re . 218 Montefiore v. oOtt Guibert, Lloyd v. Guild V. Conrad . Gullick, Wolmershausen PAGE . 481 48, 51 . 208 . 411 . 005 . 465 . 539 . 539 . 144 . 131 70, 84 , 275. 406 , 518, 616 127 185 247, 248 258 318 37 412 503 67 135 Gummer v. Adams Gunn, Pawle v. . Gurnell v. Gardner Gurney, Gee v. — ■ — Palliser ^'. Guthrie, Hev.'ison v. — Leslie v. Gutta Percha, &c., Co. of Toronto, JKe . . . 380 Gutteridge, Simmons v. . 487 Guyi;. Churchill . . 108, 109 Styles y. . . . 426 Gwythor v. Gordon . .184 Gyles, McCheane v. . .403 H. H. V. W. . . . Hackney Furnishing Co. Watts Hadfield, Rushworth v. Hadgett v. Commissioners of Inland Revenue Hadley, Re . ■ V. Beedom . Haigh, Howdcn v. Hale, Ex parte, Re Binns V. Saloon Omnibus Co. Hales V. Darrall . Halesham v. Young Hale}- V. Bannister Halford v. Kymer Halifax, Perr^-er v. Hall, Ex parte. Re Cooper ■ Re ■ Re, Branston v. Weight man — V. Barrows — V. Comfort — Dearie v. — Edwards v. 383. 38. 584 104 04 423 221 1)20 265 289 116 505 473 415 306 36 296 360 510 391 629 613 507 PAGE Hall V. Hall . . .440 Heath v. . . . 36 V. Hewer . . .410 V. Hugonin . . . 542 Moss V. . . .248 V. Norfolk Estuary Co. 329 V. Palmer . ." .192 V. Pickard . . . 62 Pinkney v. . ' . . 473 Stanton v. . . . 540 Stepnej', &c., Co. v. . 359 V. Whiteman . . 637 Hallas V. Robinson 21, 28, 99, 100 Hallen v. Runder . 14(), 150 Hallett V. Wigram . .136 Hallett's Estate, Re . . 260 Halle well, Ha\\ker v. . . 212 Halliday v. Holgate 53, 55, 57, 58 Streatfield v. . . 462 Halthin, Steinmitz v. . . 539 Haly V. Barry . . .321 V. Goodson . . .132 Hambidge v. De la Crouee . 474 Hames v. Hames . . . 403 Hamilton 17. Bell . . .113 V. Chaine . . . 629 V. Hamilton . . 554 V. Hector . . . 584 Kendall v. 460, 464, 465 V. Kirwan . . .412 Ottaway v. . . . 574 V. Vaughan-Sherrin, &c., Co. . . . 174 Woolfi;. . . .212 Hamilton, Young & Co., Re 74, 87, 95, 98 Hamlj'n v. Houston Hammersmith R3'. Gibson v. . Hammond, Affleck v. Browne v. . — — V. Hammond — — Henry v. V. Hocking . Holme V. Jennings v. . V. Messenger ■ V. Scliofield . Hammonds v. Barclay Hampshire v. Bradley- Hanan v. Ehrlich Hanbury v. Kirkland Hance v. Harding Hanchett v. Briscoe Hancock, Re 258, 2' V. Hancock . — — V. Hey^ood Moss V. 473 Co.', 146 '. 300 301 . 512 513 431 611 . 633 636 . 468 470 322 36 460 62 427 .' 186 187 426 295 542 72, 300 301 432 456 '. 25, 590 INDEX TO CASES CITED. XXXIX PAUE 425, 426 . 5(i2 Hancock, Turner v, Handfonl, Ee . . . Hands v. Andrews Hanforth, Howell v. Hanfstaengl v. American To- bacco Co. V, Baines & Co. . i\ Empire Palace 43, 372 V. W. H. Smith & Sons . 372 Hanfstaengl & Co. v. HoUoway . Hankey, Ee . Hannay, Smurthwaite v. Hannyngton, Garner v. Hanrott, Wombwell v. Hansom v. Keating Hanson, Scarlett v. Harben, Edwards v. Harburg, &c., Co. v. Harding, Ex 'parte Hance v. V. Harding . Hardvvick, Ex Hubbard . Hardy v. Bern V. Fothergill 229 399 371 372 371, 380 . 234 . 49 . 140 408. 409 . 538 . 110 . 115 Martin . 185 . 113, «24 . 295 . 438 parte, Ee 96 . 238 199, 219, 289 Gaslight & Coke Co. r. 104 (i) V. Green . . 99. 433 Hare v. Horton . . . 143 Hyat V. . . . 472 Rummens v. . . 258 Hargreave v. Spink . 15, 589 Hargreavea, Re . . 220, 241 Nuttall V. . . 356,' 308 Harkin, Robinson v. . . 461 Harkness and Allsopp's Con- tract, Ee . . . 485, 567 Harland v. Binks . .441 Harle v. Jarman . . . 585 Harley v. Harle\- . . 125, 543 Harmerv. Beir . . 126, 130 Harness, Alabaster v. . .1 93 Harnett v. Macdougall . 549 Harper, Cox v. . . .107 V. Faulder . . .1-10 Gordon v. 17, 23. 54, 55, 58 Nicholson v. . . 88 Harriman v. Harriman . 580 Harrington v. Price Harris, Ex parte . Ee V. B(>aucluimp Darby v. Davis V. Gent V. Hatton t\ . V. Lloyd — — Richardson v. . 138 . 466 . 50S 111.253 104 (I). 146 104 (I), 111 . 539 . 237 . 510 . 629 Harris v. Rothw ell Shepherd v. Weiner v. Harrison, Ee, Ex parte Sheriff of Essex Ee, Harrison v. Higson PAGE 352 426 23 294 510, 111 Alton V. . . . 416 Brinsmead v. . 93, 560 r. Harrison (2 H. & M. 237) . . 513 V. — (1910, 1 K. B. 35) 584 V. Jackson (7 T. R. 207) 474 V. (7 Ch. D. 339) . 504 t'. Kirk . . .114 V. Owen . . . 258 IK Paynter . . .251 Pelton V. . . 562, 564 Harrison & Co., United Tele phone Co Harrop v. Howard Harse v. Pearl & Co Hart, Ee V. Bush Ireland v. ■ V. Stephens . Hartford v. Jones Hartley v. Case . Heap V. — ■ — V. Pendarves HartnoU, Cripps v. Hartop V. Hoare . Hartopp V. Hartopp . — — Simpson v. . Harvey v. Bateman Goodman v. V. Harvey . Pratt V. • Thompson v. Harvey's Estate, Ee Harvie v. Blacklo'.e Harway, Carrington v. Harwood, Fine Cotton, &c. Assn. V. V. Great Northern Rail Co. . . Haseldine, Re Haslar, Tatham v. Haslewood v. Pope Hasluck V. Clark . V. Pedley Hassell v. Hawkins Lowthian v. Hastie's Trusts, Ee Hastings, Ee Lady • ■ (Lord), Scott ('. Hatchard v. Mege Hatfield v. Minet . 352 . 549 197,306 268, 295 82 .338,341 537 63 208 361 153 185 587 582 04(1) 35 590 498 509 574 513 13 171 390' 351 510 210 221 303 401 505 223 510 550 321 165 525 xl INDEX TO CARES CITED. PAGE PAGE Hatschck's Patents, Ei . 368 Heather Bell, The . 123 Hatton, lie . . 2(J4 Heathman, Kelly v. . 359 V. Haij-is . 2'M llcbdon V. West . . 305 Haiixwcll, Ex 'purle , Re Uecht, Hunt r. . . 81 Hciiiing\\ay . 271 Hccquard, Re . 273 Jlawken v. Bouino . 473 Hector, Hamilton v. . . 584 Hawker v. Halle\\ ell . 212 Hedley v. Bainbridge . 472.474 Hawkes, Re . 60 Heilbut & Co. v. Buckleton 595 V. Hubback . . 549 Helby v. Matthews 59, 88 Hawkesley, Francis v. . 182 Hellicar, Powell v. . 483 Hawkes worth, Bridges V. . 52 Helsby, Re . . 267 Hawkins, Re . 578 Heming, Cherry v. . 186 ■ — — Att.-Gen. v. . 445 Hemingway, Re, Ex parte ■ Hassell v. . . 505 Hauxweil . 271 V. Rutt . 255 Henderson, Baker v. . . 66 Hawley, Bagueley v. . 595 Wilkinson v. . 465 Grantham v. 98 V. Williams . . 591 Hawtry v. Biitlin . 625 Henderson's Patent, Re . 350 Hay, Ex parte. . 467 Heneage v. Hunloke . 410 V. Palmer . 39; Henley & Co., Re . 224 (Lady), Anderson V. . 578 Henning, Whittle v. , 542 Haydon v. Haydon . 230 Henrich Bjorn, The 126 ,127,131 Hayes v. Hayes . . 503 Henry v. Armstrong . . 440 ■ Massy v. . 547 V. Hammond . 611 Haygarth, Taylor v. . 527 ■ • V. Smith . 603 Hayley, Hojje i\ . . 100 Henry Latham & Sons, Ld. Hayman, Ex parte, Re Pnls- V. Johnstone White . . 194 ford . . 468 Henshaw, WiUiamst;. . . 452 Haymen, Stapleton v. . 120 Hensman, Williams v. . . 458 Haynes, Re, Ex patie Henthorn v. Fraser . 176 National Mer cantile Henty iK Wrey . . 412 Bank . . 629, 631 Herbert v. Sayer . . 300 Brooke v. . 48G Sinnett v. . . 509 V. Cooper . 65 Herdman v. Wheeler . . 204 V. Doman . . 195 Hereward, The . 133 V. Foster . 554 Heriot, Hood-Barrs v. . 450, Hayter, Pliillipson v. 572.573 563. 564 Hay\\ard, Re . 487 Herlakenden's case 150, 153 ■ — — Jelks V. 59, 588 Herman v. Jeuchner . 192, 196 Hazeldine's Trusts, Re . 602 Hermann v. CharlesM'orth . 197 H. B., Re . . 271 Hermitage v. Kilpin . . 229 Head, Re . 466 Herring, Re 345, 346 V. Egerton . . 139 Hertford v. Lowther . . 42 • March v. . 539 Heseltine v. Simmons . . 635 Heald, Bracegirdle v. . 188 Hesilrige, M'Donnell v. . 439 Healey, Spence v. . 256 Heslop V. Baker . 112,279 Heap V. Barton . . 146 Hesse v. Stevenson . 392 V. Hai't ley . . .361 Hetherington v. Groome . 636 Heard v. Heard . . 58() Hett, Bower v. . . 294 V. Stamford . . 544 HewGT, Re, Ex parte Kahcn . 631, Thorne v. . 428 633 Heath, Re . . 524 Hall V. . 410 V. Crealock . . 139 Hewett, Re, Ex parte Levene 562 V. Hall . 36 Re, Hewett v. Hallett 452, 458 V. Key . 248 Hewison v. Guthrie . 67 Heath's Patent, Re 43 Hewitt, Gledstane v. . . 16 Heather, Re . 506 V. Kaye 436,482 Richards v. . 401,465 Webb V. 248, 256 INDEX TO CASES CITED. xU PAGE 1 PAGE Hoywood, lid 241, 24.3, 244 (b) Hiram Maxim Lamp Co ,Re 257 Allwootl V. . 140 Hirst V. West Riding U lion Att.-CJc-n. V . 444 Banking Co., Ld. 189 — — Hancock v. . 450 Hirth, Re . 271 Hibbard, C^hurch's Trustee v 229 Hiscock, Re 478 Hibbcrt, Simond v. 04 Hiscox, Willis v. . 420 ,427 Hibblewhite v. McMorino 341 Hitchins v. Kilkenny, &c.. Hichens, Young v. 51 Rail. Co. . 329 Hickbed, Penson v. 35 Hitchman v. Stewart . 247 Hickley v. Greenwood . 634 V. Walton . 143 149 Hickman, Cox v. . 470 472 H. N. Brock & Co., Ld. , Re 385 Hickson, Badischc Anilin, Hoare v. Byng 402 &e. V. . 301 Hartop V. 587 — — V. Darlo^^■ . ()30 , 033 V. Hornby . 431 Higgins V. Pitt . 265 — — King V. 460 V. 8argent . 245 V. Parker 395 Seed V. 359 Hobby V. Collins . 543 Higginson & Dean, Re 527 , 598 Hobson, Re . 293 Higgs, Blades v. . .1 5, 54 , 156 V. Bell . 019 Sibley v. 630 V. Blackburn 508 Hilbert, Tate v. . 43() .482 ,483 Fritz V. 100 Hildersheirn, Be . 472 V. Gorringe . 143 Hill, i?e 449 V. Thelluson 108 V. Cooper 578 Hockaday, Re 635 ■ V. Crook 510 Hocking, Hammond v. 634 ,630 Crook V. 510 ,511 Hockley, Steadman v. . ()(> Davidsson v. 10-1 Hodge, Walter v. 482 V. Fearis 391 Hodges, Belton v. 268 Fole\' V. 240 ■ — ■ — V. Croydon Canal Co. . 606 V. Gomme . 498 Hodgson, Re 465 , 469 u. Hill (1897, IQ.B. 483) 393 Holland v. . 143 V. (1902, P. 140) . 575 Holtby V. . 5t)2 Johnson v. . 03 V. Loy 89 ■ — — V. Kirk wood 031 Mallalieu v. . 190 V. Scott ()1 Nash V. 259 Smith V. 603 V. Shaw 24() V. Spencer . 192 V. Sidney 168 V. Thompson 353 Hodson, Re . 554 Thorneloe v. 390 V. Observer Life Assur- Warburton v. 321 ance Society 305 Hillary, Cranley v. 204 \\^allis V. 520 Hillman, Kx parte. Re Pum- Wcardale, &c., Co. V. . 037 fri-y . 295 Hogarth v. Jackson 50 Tapfield v. . 99 Hogg, Dean v. 134 Hills i;. Hills 483 ■ — - — V. Skeen 473 Hilton V. Tucker . 7 2,96 Holdcn, Stokes v. 102 HinchlilTet;. HinchlifTc 506 Holder v. Cope . 574 Hinchinbrook (Lord), I ord Holderness v. CoUinson ()4 Shipljrook i\ 42{> V. Rankin . 113 Hindle, Catterali v. 255 Holford, Re 416 Hindloy v. Westmeath ( Mar- V. Phipps 427 quis of) . 584 Holgate, Hallidaj- v. . 5 J, 55, Hingston v. Wendt 130 57, 58 Hinton v. Pinkc . 503 Holland, Re 188 ■;;. Sparkes . 210 V. Hodgson . 143 Hiort V. L. & N. W. Ry. Co! 93 V. Hughes . 221 ,314 Hirachand Punamchant V. Ideal Bedding Co. Ld. Tem])lc 255 V. . . 434,450 ,513 xlii INDEX TO CASES CITED. PAGE PAGE Holland, M. T. Shaw & Co., Hopper, The 127 Ld. V. Addenda Horlock, Re . . . 505 Serpy v. 372 S\\ eetapple v. 431 Taylor v. 001 Hornblower v. Boulton 351 Holliday, Watson v. 289 Hornby, Hoare v. 431 Hollier, Ravenshaw v. 441 Home and Hellard, Re 345 Hollins V. Fowler 53 Horner, Re . 510 Hollinshead, Reid v. 472 V. Flintoff . 215 Hollis V. Claridge 66 Hornsby v. Miller 113 HoUowaj', Hanfstaengl & Co. Hornsey Local Board v. V. . . . . 371 ,380 Monarch, &e., Socy. 602 Holman v. Stephens 256 Horsley v. Chaloner 500 Holme V. Hammond . 468 ,470 Horton, Hare v. . 143 Holmes, Re . 616 Langton v. . 100 ■ ■;;. Mackrell . 182 Richardson v. 461 V. Millage 253 Wells I'. 186 V. Mitchell . 185 Horwood V. Smith 589 V. Prescott . 404 Hosier, Franklin v. 63 Holroyd v. Marshall 99 ,100 Hotham v. Somerville . 140 Holroyde v. Garnett . 229 Hough V. Windus 109 Holt, Re . . . 428 Houghton, Re . . . 495 V. Everall . 307 V. Houghton 455 • Wren v. 596 V. Matthews 64 Holtby V. Hodgson 562 Houldsworth, Ulingworth v. 346 Holyland v. Lewin 512 Houliston V. Smyth 574 Homan, Owen v. . 248 Houlton's case 469 Homberger, Yeatman v. 389 Household Fire Insurance Home, Campbell v. 412 Co. V. Grant 176 Farina v. 7 4,82 Houston, Hamlyn v. . 473 Home Marine Insurance Co. Houstoun, Ellis v. 610 V. Smith . 310 How, Jones v. . . . 433 Homer, British Mutoscope Pidding v. . 383 Co. i;. 43 V. Winterton 428 Homewood, Leader v. . 144 Howard, Re . . . 470 Homfra}', Phillips v. . 166 V. Bank of England 555 ,556 Honey, Ex parte . 467 Barnett v. . 564 Honner v. Morton 541 George v. . . . 439 Honywood v. Hon3'wood 153 Harrop v. . 549 Hood, Wilson v. . 65 V. Howard . 36 Hood-Barrs v. Cathcart 564 V. Refuge Friendly ■ Edwards v. . 463 Society . 306 ■ V. Heriot . 450 ,5(33 , 564 V. Rhodes . 426 Hoop, The . 190 V. Sadler 343 Hooper v. Ramsbottom 140 Howarth, Samuel v. 248 V. Smart 115 Howden v. Haigh 265 Hooson, Lister v. 294 Howe V. Lord Dartmouth 221 .314 Hope, Re . . . 229 Howell, Re . 288 Att.-Gen. v. 492 V. Gayler 403 V. Glendinning 64 V. Hanforth . 399 Graham v. . 469 V. M'lvers . 37 V. Hayley 100 Howes, Re . 270 Hope Johnstone, Re . 584 Morris v. . . . 403 Hopkins, Re 243 ■ — — V. Prudential Assurance V. Gudgeon . '76, 84 Co 436 V. Prescott . 196 Howse V. Chapman 507 ■ Tugman v. . 547 Hoyle, Re . 185 Hopkinson i'. Lee 454 Hoyles, Re . . 480 ,507 Hopkinson's Patent, Re 350 Hubback, Hawkes v. . 549 INDEX TO CASES CITED. xliii PAGE PAGE Hubbard, Ex parte, Ke Hard- Hunt, Trego v. . 392 wick 96 — — &c., & Co. iJ. Ehrmann V. Hubbard . 582 Bros. 389 Hubbersty v. Mane fiester, Hunter, Crears v. . 181 Sheffield, &c.. Rail. Co. . 329 V. Daniel . 193 Hucks, VVilley v. . 294 Jarrett v. . 187 Hudson, Ex parte. Me AValton 264 V. Nockolds . . 605 Be 483 ■ V. Walters . 591 V. Hudson . 54 ■ V. Young 115 Smith V. 81 Huntings Oliver v. 187 ■ V. Spencer . . 482. 506 Huntley v. Gaskell 481 ■ Watkinson v. 458 V. Russell . 16() Hugi^ins, Ex parte 283 Hurst V. Jennings 238 Hughes, Be, Ex parte Hughes 268 Pinney v. 490 Be, Brandon v. H ughes 578, Smith V. 441 579 Husbands, Ex parte 467 Burton v. 58 Hutchings, Davis v. . 42 7, 428 ■ V. Coles 611 V. Smith 541 Griffith V. . 428 Hutchins v. Chambers . 105 Holland v. . . 221 ,314 Hutchinson, Brown & Co. v 470 V. Kelly (505 Featherston v. 196 V. Little . 035 636 Huth, Atlantic Mutual In Oldham v. . 420 surance Co. v. 130 V. Pump House Hotel ■ ■ V. Lamport . 130 Co. . 39 199 Hutley V. Hutley 193 ■ Rann v. . 177- -180 Hutton V. Eyre . 460 ■ Smith V. 198 Huxtable, Ex parte. Be Stoveld V. . 73 Conibeer .... 295 V. Stubbs 441 Hj^ams V. Stuart King 190, ■ Vinden v. . 202 206 19 5, 212 V. Wynne . . 237 610 Hyat V. Hare 472 Hughes' Trusts, Be 614 Hyatt, Be . 601 Hugill V. Masker . 85 Hyde v. Price 245 Hugonin, Hall v. . 542 V. Wrench . 176 Huish, Be . 505 Hylton V. Pollard 27 Hulkes V. Day 321 Hymas v. Ogden . 20 Hulse, Be . 148 Humble v. Mitchell 42,318 342 I. M'lver V. . 4(58 469 Hume, Be . 508 Ibbetson, Ex parte. Be Moore 199, V. Druyff 231 614 Whicker v. . 480 Ideal Redding Co.. Ld. v. Humfrey v. Cery . 605 Holland . . ' 434, 45 0, 513 Humpage, Grafftey v. ; 403 431 Idle's case .... 154 Humphreys. Davies v. 248 Ilfracombe Rail. Co., Picker- Gi'een v. 600 ing V. . . 3 7. 321 Jones V. '. 39, 458 V. Poltimore 329 Humphries, Be, Hm th V. Illidge, Be . 221 Millidge . 510 Illing\\orth v. Houldsworth . 346 Humphris, R. v. . 441 Imperial Loan Co. v. Stone . 175 Hunloke, Heneage v. 410 Imrie, Castrique v. 25, 26, 4 9, 126 Hunt V. De Blacquiere 574, 579 Inee, Elliot v. . . . 102 V. Fripp 300 Ind, Coope & Co., Ld., Be . 345 V. Hecht 81 Indemnity & Insurance Co. V. Hunt 584 Montgomery r. 136 Knight V. 265 India and London Life Assur V. Peacock . 612 a nee Co., Dalby t'. . 300 Pinney v. 518 India, The .... 127 xliv INDEX TO OASES CITED. Ingham, lie . Simpson v. . Ingilby, Walburn v. ■ Winn V. Ingram, Harris v. Inland Revenue (Commrs. of), County of Dur- ham Electrical, &c., Co. V. . . . Danubian Sugar Fac- tories, Ld. V. Diddington Steamship Co., Ld. V. Hadgett v. . ■ — — Onslow V. . Inman, Nash v. . Innes, Re . Penny v. . Powlest;. . . 310, Insole, Re . Invicta Mfg. Co., Ash v. Iredale, Gardner v. Ireland v. Hart . . 338, Ironmonger, Lane v. Irons V. Smallpiece Irvine, Rannie v. . Irving, Mercer v. . Irwell India Rubber Works, Gorringe v. . . . Isaack v. Clark Isaacs, Collyer v. . RoUs V. . . . West of England, &c., Co. V Isler, Badische Anilin, &c. v. Ives, Re, Ex parte Addington Iveson, Other v. . Izard, Ex parte. Re Chappie Blake v. 99, AUE 139 259 327 150 229 83 172 125 423 397 174 435 207 311 578 390 337 341 572 70 194 215 37 17 99 352 308 43, 363 230 461 113. 633 100 J., Re ... Jablochkoff's Patent, Re Jackson, Re Butcher v. . Forbes v. Harrison r. (7 T. 207) V. (7 Ch. D. 339) Hogarth v. . V. Jackson (1 Dru. 91) Morgan v. . Natl. Provl. Bank of England v. Nottage V. . . 606 . 354 . 617 . 412 246. 247 R. . 474 504 50 412 155 596 373 PAGE Jackson, Purdcw v. . . 541 R.v 582 V. Rotax, &c., Co. . 596 Rous V. . . .413 — ■ — Sinclair v. . . . 606 Thorpe v. . . . 465 —^ V. Wallington . .491 V. Watson . . 1 64 Jackson's Will, Re . .431 Jacob, Re . . . .407 Jacobs, Meux V. . 143,146,625 Jacques, Re . . . . 50() Jacquet v. Jacquet . . 610 Jakeman v. Cook . . 183' James, Re . . . ■ 558 Ashbyw. . .609 Baiunann v. . .187 Dean v. . . . 256 V. Durant . . .431 Johns V. . . .441 V. Kerr . . . 169 Richards v. . . . 624 V. Thomas . . .237 Walter v. . . . 255 James Jones & Sons, Ld. v. Tankerville . 147,150,152 James Keith, &c.,Ld., Rain- ford v. . . . 338,342 Jameson v. Brick, &c., Co. . 300 .lanson, Ex parte . 46() 467 Jardine, Scarf v. . 464 469 Jarman, Harle v. 585 To\\ nsend ?'. 194 391 Jarrett v. Hunter 187 Jarvis, Adamson v. 461 Smith V. 472 Jassy, The Jay V. Johnstone 127 601 V. Ladler 382 V. Robinson 562 566 J. B. Brooks & Co. V. Lycett's, &c., Co. 360 Jeffereys v. Small Jeffery, Re, Arnold v Burt . 454 416 Jefferyes, Watts v. 321 Jefferys, Att.-Gen. v. 514 V. Boosey . Jeffries v. G. W. Railway 369 Co. 372 51 Jelks V. Hayward 59 588 Jenkins, Ayerst v. 196 Davies v. 637 Doorman v. . 60 Perry v. Richardson v. 608 234 Jenkinson, Re 112 ■ — ■ — V. Brandley Mining Co! 639 Jenkyn v. Vaughan 434 Jenkyns v. Us borne 89 INDEX TO CASES CITED. xlv . 51 . 192, 19(> Assn., . 493 . 189 . 639 336 131 lie PAGE Jermes, Re . . . .234 Jennings, Do\n nes v. . . 545 V. Hammond . . 322 ■ Hurst V. . . . 238 V. Mather . . .280 Raw lings v. . . .314 Reeve r. . . 186,187 V. Rigby . . 234, 235 JervLs. Chard v. . . . 229 Radburn v. . . .312 V. WoLferstan . 115,498 Jervoise v. Jervoise . . 535 Jessop V. Watson Jesup, Rackham v. Jcuchner, Herman v. Jewish Colonization Att.-Cen. V. Jewsbury, Swift v. Joannon, Reid v. . Johannesburg Hotel Co. John, The ^ . . . John Harper & Co. v. Wriglit & Butler . . . .380 John Roberts & Co., Re, . 298 Johns V. James . . . 441 Johnson, Ex ■pnHc, Re Chap- man . . 272, 629 Re (1903, 1 Ch. 821) 522 — — Re, Shearman v. Robin son Re, Sly V. Blake . V. Arnold • ^Att.-Gcn. V. (1903, 1 K. B. 617) V. (1907. 2 K. B 885) . V. Diprose Dollond V. V. Faulkner ■ V. (iallaghci Orahani v. V. Hill .... V. Johnson . V. Lancashire and York- shire Railway Co. V. Lander V. Newnes . V. Pickering . 52 V. St. Peter's Church- wardens V. Stear Worrell v. Johnson's Patent, He (L. R. 4 P. C. 75) . . 354 (1908. 4 Ch. 487) . . 350 (No. 2) (1909, 1 Ch. 114) 350 Johnston, Re, Cockercll v. Earl of Essex . . .402 469 603 448 444 493 94. 637 . 227; 235 104 (II), 105 . 546 . 38 63 . 512 93 578 375 107 200 57, 59 66 PAGE Johnston v. Orr-Ewing . 383 Orr-Ewing v. . . 382 Rawson v. . . .86 V. Sumner . . 574, 575 Johnstone, Jay v. . .601 V. Marks . . . 174 Johnstone White, Henry Leetham & Sons. Ld. v. . 194 Jolly V. Roes . . 572, 573 Jones, Re, Ex parte Lovering 112 Ex parte. Re Grissell . 267 Ex parte. Re Jones . 268 V. Arthur . . . 256 Burke v. . . . 610 V. Davids . . . 246 Edwards v. . 70, 436, 483 V. Farrell ... 37 Fitch V. . . 195, 212 V. Flint . . .152 V. Gordon . . . 590 Hartford v. . . .63 V. How . . .433 V. Humphreys . 39, 458 V. Just . . .595 V. Lock ... 70 Macoubrey v. . .410 V. Merionethshire Build- ing Soe. Merr^'weathcr v. V. Ogle V. Padgett . Phillips V. . V. Powell Reilly v. — ■ — Rogers v. Scott V. V. Waite Jones Bros., Re . Jones, Llovd & Co. Jones' Will, Re . Joseph r. Lyons . R( . 192 . 584 . 400 . 595 19 104 (I) . 214 . 161 . 611 . 584 . 264 . 336 . 431 28, 99, 100 Joseph Crosfii-ld & Sons, Re 385 .Joyce, Ife . . . . 625 Judkins v. Judkins . . 577 J ud kins' Trusts, Re . .416 .Ju'lson. Nicholls v. . . 505 Jidscs, Kilshaw i'. . . 470 Julius, Wetherell v. . . 168 .In son »'. Dixon . . .106 Just, Jones v. . . . 595 Kahen, Ex parte. Re Hewer . 631, 633 Kain. Shepherd v. . . 594 Karnak, The . . 128,135 Kattenburg, Seroka v. . 570 xlvi INDEX TO CASES CITED. Kay, Re Kaye, Beaumont v. ■ He\\itt V. Keane, Mornington v. Kearley v. Thomson Kearsley v. Cole . ■ Morris v. Keating, Hansom v. ■ Marsh v. — Smith V. Keats, Williams v. Keeley, Winch v. Keep, Beech v. Keet, Be . Keightley v. Watson Keir v. Leeman . Keith, Brooks v. . V. Burrows . Cornmell v. . Rees V. Keke-\vich v. Manning Kelland, Wilson v. Kellond, Kelly v. Kelly, Archer r. . • V. Heathman Hughes V. . V. Kellond . V. Selwyn V. Solari Thomas v. . Kelner, Tempest v. Kemble v. Addison ■ — — V. Farren Kemp. Baerselman v. V. Talk Philanthropic Soc V. Westbrook Kempe v. Andre\\ s ■ — — V. Gibbon Kendall, Brierley v ■ — ■ — Cooper V. V. Hamilton ■ — ■ — Smith i\ Kennedy, Ex parte V. Kennedy . Molony v. . ■ — ■ — V. Thomas . Kennaj', Rogers v. Kenrick v. La\vi'ence Kensington, Ex parte V. Dollond . Kensington, &c., Co., Fox V. Kent, The . Kent County Gas, &c Ld., Be . Kent's case . Kenyon, Eastwood v. PAGE . 428 . 570 436, 482 . 433 . 197 . 4()3 . 455 . 538 . 55 . 441 . 468 35,37 . 437 . 299 . 454 . 192 . 431 . 135 . 431 . 540 437, 439 . 345 . 101 . 431 . 359 . 605 . 101 . 613 . 601 101, 634 . 30 . 631 214, 215 . 200 . 90 508 . 94 . 454 . 604 . 94 182, 600 460, 464, 465 . 34 . 466 . 584 . 547 . 211 30, 54 . 371 . 466 . 547 V. Lane- 351, 356 . 132 Co. 300, 467 . 336 . 180 PAGE Ker t^. Lord Dungannan . 395 Kerr, James v. . . .169 Kershaw, Whittaker v. . 498 Kettle, Ford v. . . . 631 Key, Heath v. . . . 248 Kharaskhoma, &c., Syndicate, Be 336 Kidderminster Overseers, Richards i'. . . . 639 Kidson v. Turner . .183 Kilkenny, &c.. Rail. Co., Devereux v. . . 329 Hitchins v. . . . 329 Kilpin, Hermitage v. . . 229 V. Ratley ... 73 Kilshaw t^. Jukes . . . 470 Kimpton, Betts v. . . 537 Kincaid, Be . . . . 539 King,i?e(1904, ICh. 363) . 436, 438, 494 Be (1907, 1 Ch. 72) . 498 The. See R. Barnett v. . V. England . • Farquharson v. . 289 . 67 586, 587 591 V. Hoare May V. . . . O'Halloran v. V. Phoenix Assurance Co. . V. Victoria Insurance Co. . Wilkinson v. King and Beesley, Be . Kingham, Reader v. Kingscote, Earl v. Kingsford v. Merry Kingsley's Trust, Be . Kingston, Miller & Co. i'. Thomas Kingston & Co. Kington v. Kington Kinnaird v. Trollope . V. Webster . Kinnier, Atkyns v. Kirby v. Potter Kirk V. Blurton V. Eddowes ■ Harrison v. ■ V. Todd Kirkham v. Attenborough ■ — ■ — Needham v. Kirkland, Hanbury v. . V. Peatfield . . 602, 603 Kirkman v. Booth . . 469 Kirkpatrick v. Tattersall . 182 Kirkwood, Hill v. . . 631 Kirton v, Braithwaite . . 256 460 258 550 254 170, 171 . 23 . 226 . 185 . 570 . 590 . 579 I'. 390 254 . 255 . 260 214. 215 . 503 . 473 . 507 . 114 . 166 . 79 . 433 . 426 INDEX TO CASES CITED. xlvii PAGE Kirwan v. Daniel 441 Hamilton v. 412 Kitchen, Dickinson v. . 123 Kitchin, Young v. 40 Kitson, Re . 223 Klaber and Steinberg's Patent, Re, 360 Klein\\ort & Co. v. Ca ssa Maritima of Genoa 128 135 Kloebc, Re . 522 Knatchbull v. Fernhead 498 Knee, Gattward v. 478 Knight, Re . 89 V. Barber 318 342 V. Boughton 400 ■ V. Hunt 265 Knott V. Cottee . 426 Knowles, Gullen v. 454 Knox's Trusts, Re 423 Koe, Pullan v. 100 611 Kong Magnus, The 126 Kramer v. Wavmark . 171 Krehl v. Burrell . 160 Kruger v. AVilcox 67 Ku^'per's Policy Trusts, Re 307 Kymer, Halford v. 306 Kynaston, Clayton v. . 460 463 Lacy V. 463 Kyne v. Moore 192 Kynoch. Ld. v. Row lands 5 1,52 Labouchere v. Dawson 391, 392 Lacey, Re . . 602, 607, 609 Thompson v. . . 63 Lack, Thompson v. . 248, 463 Lacon, Re . . . . 507 Lacons v. \\'ai-moll . 220, 601 Lacy, Re ... . 513 V. Kynaston . . 463 Ladbrooke, AVheclhouse v. . 238 Ladenburg v. Goodwin & Co. Ld 250 Ladler, Jay v. . . . 382 Lagan, The . . . .131 Laing. Tucker v. . . . 249 Lake, Re (1903, 1 K. B. 151) 38 (63L.T.416) . . 603 V. Craddock . . 454 Tyler v. . . . 547 Williams v. . . 185, 187 Lakeman v. Mountstephen . 185 Simpson v. . . .169 Larabe v. Orton . . 438 Lambert's case . . . 472 • Estate, Re . . 524, 568 PAGE Lambert v. Taylor . . 606 Lambourn v. McLellan 144, 146 Lamond v. Davall . . 92 Lampert's case . . . 394 Lamport, Collins v. . . 123 Huth V. . . . 136 Lamson, Stove, &c., Ld., British Cash, &c.,Ld.,t'. . 193 Lancashire & Yorkshire R}-. Co., Johnson v. . . 93 Lancashire Cotton Spinning Co., Re . . . .244 Land's Patent, Re . . 349 Landauer v. Craven . . 311 Lander, Johnson v. . . 578 Lane, Birmingham, &c.. Society v. i>. Burghart . V. Ironmonger May I'. Walter v. Lane -Fox, Re — — V. Kensington, &c., Co . 566 . 185 572 169, 200 . 374 . 434 351, 356 425 194 616 436 . 454 . 100 564, 571 . 336 Langdale, Re . . . Langford, Avery v. Langley, Mutual Life Ass. v< V. Thomas . Langston, Wetherell t'. Langton v. Horton Larner ik Larner . Larocque v. Beauchemin Lascelles, Genesc t\ Lashbrook v. Cock Lassells v. Cornwallis . Last, Preist v. . Laton, Clifford i: Lauderdale, Lord, Garrai'd v. Lauri v. Renad . Lavatcr, Walton v. 4.3, 363, 457 Lavell, Magee v. . . . 215 Lavender, Greedy v. Laveiy v. Pursell haw V. Bagwell . i\ Local Board of Red- ditch . V. London Indisputable Life Policy Co. Searle v. . . . Lawley, Re . Beyfus V. . Lawrance, Re . . . Lawrence, Re . . . Kenrick v. . V. LawTcnce Sellers V. . & Bullen, Ld. v. Aflalo. Laws, Blacklow v. 230 457 406 596 574 441 380 542 152 441 214 306 437 499 406 66 283 371 400 167 375 547 xlviii INDEX TO OASES CITED- PAGE Lawson, Duncan v. . 480, 523 Seear i'. . . .168 Lawiion v. Lawton . . 148 Laxon & Co., Ec . . . 334 Laj'thoarp v. Bn^ant . .187 Lea, Barker v. . . . 539 1;. Whitaker . 214,216 Leader v. Homewood . . 144 Leak v. Driffield . .563 Leake v. Loveday . 51, 54 Learoyd v. Whitelcy . . 426 Leather, Lister v. . .351 MeUor v. . . .14 Leather Cloth Co., Ld. v. American Leather Cloth Co., Ld. . . 382, 383, 384 Leathes v. Leathes Leaveslej', Be Lechmere v. Earl of Carlisle V. Fletcher . Leckie, Palyart v. Lecouturier v. Rey Lee V. Bayes — — • Brown v. V. Bude, &c., Ry. Co V. Butler Crossley Bros 140 321 420 188 197 389 587 247 329 Uhv. 104(1), 144, 146 146, 147, 150 78, 83 . 454 . 264 . 436 . 209 . 243 . 512 . 547 . 146 . 564 549, 563 . 410 V. Gaskell V. Griffin Hopkinson v. V. Lockhart V. Magrath Morris v. — — V. Nuttall V. Pain • — ■ — V. Prideaux V. Risdon Sprange v. Stogdon V. Waring v. V. Young . . .418 Leeds, &c.. Theatres, Ld., Re .... 257 Leeman, Keir V. . . .192 Leeming, Re . . . 504 Legg V. Evans . 54, 67, 107, 588 Legh V. Legh . . .37 Leicester v. Chapman . . 587 Furniss v. . . . 594 ■ V. Rose . . . 265 Leigh V. Taylor . . 144, 148 Wright V. . . .166 Leighton v. Leighton . 506, 507 ^ V. Wales . . .214 Lempriere, De la Garde v. . 539 Lenclon v. London Road Car Co. . . . .165 PAGE Leng, Re . . . 243, 495 Crosby v. . . .55 Leonard, Att.-Gen. v. . . 226 Leopold Cassella & Co., Re . 385 Lepine v. Bean . . . 510 Leroux v. Brown . . 84, 184 Le Roy, Clayton v. 15, 17, 54, 589 Leschallas v. Woolf . .144 Lescher, Bain v. . . .511 Leslie, Ex parte . . . 289 Cuenod v. 544, 545, 570, 579 ■ V. Guthrie . . . 135 Leslie v. Leslie (1908, P. 99) . 578, 582 V (1911, P. 203) . 578 Main waring v. . . 574 Singx). . . .410 Lethbridge v. Att.-Gen. . 445 Lett, Stahlschmidt v. . . 609 Levasseur v. Mason and Barry 111 Le Vasseur v. Scratton 541, 554 Levinstein, Badische Anilin und Soda Fabrik v. . . 351 Levy V. Abercorris Slate, &c., Co. . . . 345 V. Stogdon . . .602 V. Walker . . .391 Lewcn v. Dodd . . . 457 Lewin, Holjdand v. . . 512 Lewers v. Earl of Shaftesbury 160 Lewis, Re . . . . 494 Gerard v. . . .35 ■ — — Gilbert v. . . . 547 V. Madocks . . 99, 433 V. Marling . . . 351 ■ V. Nobbs . . . 426 Solicitor to the Treasury y : 483 Lickbarrow v. Mason . . 89 Liddlow V. W^ilmot . . 574 Life Interests, &c., Corpora- tion, Blumberg v. . . 256 Liford's case . . . 153 Limbard v. Grote . .411 Limerick (Earl of). Gray v. . 410 Lincoln v. Windsor . . 425 Lindsay, Cundy v. 198, 586, 590 ?-OGibbs . . .135 Lingard, Ex parte . . 216 Lingen v. Sowray . . 420 Linotype Co.'s Trade Mark, Re .... 385 Linton v. Linton . . . 578 Trollope t'. . . .553 Lisle, Agar v. . . .17 Lister v. Hooson . . . 294 V. Leather . . . 351 V. Lister . . .581 INDEX TO CASES CITED. xlix PAGE Lister, Tidd v. . . . 540 Little, Hughes v. . . 635, 636 Littledale v. Bickersteth . 509 Liverpool Marine Credit Co. V. Wilson . Livcsay v. Redfern Lizzie, The Llanwarne, Re Llewcllin, Be Re. Llewellin v. Williams 65 606, 608 473 135 504 135 521 153 Lloyd, Re V. Ashby Coppin V. Cullingworth v. V. Fleming V. Guibert Harris v. Powell V. V. Prichard V. Tench Lloyd-Edwards, Re Lloyds Bank v. Bullock Deeley v. I'. Pearson Load V. Green Lobb V. Stanley Lock, Jones v. Locke, Palmer v. Lockhart, Lee v. V. Reilly Lockj'er, Pym v. Loder v. Cheslyn Lodge V. National Union Investment Co V. Pritehard Lodge's Patent, Re Loeschman v. Machin . Loftus, Ricketts v. Lomas, Freeman v. V. Wright London, Easton v. London ( Bishop of), Baylis v. London and County Bank v. G. W. Ry. Co 207, 587 V. London & River Plate Bank Picker v. V. Taylor v, V. Terry London and Globe Finance Corporation, Re London and Midland Bank v Mitchell . London and N. W. Ry. Co. Clements v. Clough V. Hiort V. 363 264 311 127 510 261 431 527 245 591 260 615 5, 588 187 70 614 264 247 507 35 197 465 351 23 409 257 239 141 601 206, . 590 344, 586 458 259 64 608 P.4GE London and Provincial Bank V. Bovle . . . 550 Powell V. . 329, 340, 341, 617, 618 London and Provincial, &c., Insurance Co., Ld., William Pickersgill & Sons, Ld., v. 310, 311 London and S. \V. Ry. Co., Mears v. . . 61, 62 Singer Manufacturing Co. V. . . . 62 Wallis V. . . . 64 London and Westminster Loan and Discount Co. v. Drake . . .148 London and Yorkshire Bank V. White . . . .96 London, C. & D. Ry. Co., Gardner v. . . 345 V. S. E. Rway. Co. . 245 London City and Midland Bank, Lj'on i\ . .144 London Dock Co., Calvert v. 248 London, Edinburgh & Glas- g(jw Life Insurance Co., Barnes v. . . . . 306 London General Omnibus Co., Ld., Clark v. . . 163 London Indisputable Life Policy Co., Law v. . . 306 London Joint Stock Bank, Easton v. . . 344 V. Simmons . . . 344 London Pressed Hinge Co., Re 345 London Road Car Co., Len- don V. . . . . 165 London Small Arms Co., Dixon V. . . . . 354 London Trading Bank, Bechuanaland E.xplora- tion Co. V. . . 41, 344 Londonderry, R. v. . . 329 Londonderry and Coleraine R}'. Co., (Jraham v. 174 85 93 W.P.P. Long V. Millar V. Symes Ward, Lock & Co. v. . Longbottoin r. Berry . Longman v. Bath Electric Tramways, Ld. Longstaffe v. Meagoe . Lonsdale, Prideaux v. . Lonsdale ( Earl of ),i'. Countess of Berchtoldt . Riggr. d 535, 53f) 187 491 375 143 338 143 545 403 157 INDEX TO CASES CITED. PAGE Loog, Singer Manufacturing Co. V. . . 383, 389, 390 Loraine v. Loraine 581 582 Lord, Milroy v. 435 437 V. Price 54,67 Lord's Trustee, G. E Ry. Co. V. 96 Lord Advocate v. Fleming . 444 Lorriman v. Lorriman 581 Lotan V. Cross 61 Louis Tussaud, Ld., Be 390 Lound V. Grimwade 196 Love V. Gaze 513 Willson V. . 215 Loveacres (/. Mudge v. Blight 457 Loveday, Leake v. 5 1. 54 Lovegrove, Phipps v. 38 Loveland, Be 510 Lovell V. Beauchamp 268 • — — V. Newton . 555 Loveridge v. Cooper 613 Levering, Ex parte 112 Low, Be, Bland w. Low 109 Be, Ex 'parte Argentine Gold Fields 270 V. Bouverie ()15 ■ Edmonds v. 505 V. Routledge 372 Low Moor Iron Co., Pro- vincial Bill Posting C o. i-. 104(i), 146 Lowe, Banner v. . 399 V. Fox 562 0. Peers 193 Low is V. Rumney 009 Lowman, Be 401 Lowndes v. Collins 243 — — V. Norton 153 Lowther, Hertford v. 42 Lowthian v. Hassel 223 Loy, Hodgson v. . 89 Luard's case 544 Lubbock, Earl v. . 199 Lucan, Be . 438 Lucas V. Dixon . 83 V. Dorrien . 74 Smith V. 554 Tamvaco v. . 311 V. Wilkinson 255 Lucy's case . 181 Lumley, 7?e(1894, 3Ch . 135) 564 i?e(189(i, 2Ch. 69 0) . 559, 560 V. Simmons . 636 Ward V. 258 Lumsden v. Burnett 106 Luna,&c.. Co., CJillctto , &o.'. Co. V. 360 PAGE Lunn, Bank of England v. . 321, 323 V. Thornton . 99, 100 Lush, Sharp v. . . 484, 495 Lushington v. Boldero . . 153 493 J. B. . 360 . 410 . 189, 615 . 144 . 391 . 308 . 267 . 566 . 425 Lyall V. Lyall Lycett's, &c., Co., Brooks & Co. v. Lyddon v. Ellison Lyde v. Barnard . V. Russell Lj^e, Cruttw ell v. . Lynch v. Dalzell . Lynes, Be . V. Robinson Lyon V. Baker V. Lontlon City and Mid- land Bank . . .144 Lyon & Co., Wenman v. . 626 Lyons v. De Pass . . 589 V. Elliott . . .104 Joseph i;. . 21,28,99,100 V. Tucker . . . 632 Lyric Theatre, Cadogan v. . 253 Lj'sons V. Barrow . . 488 Lyttleton v. Cross . . 220 M. M., A.v 582 Maas V. Pepper ... 96 Macbeth, North and South Wales Bank v. . 202, 206 Reid V. McCarthy v. Capital & Coun- 79 ties Bank . 292 M'Causland i!. O'Callagh an . 223, 244 McCheane v. Gyles (No. 2) . 463 M'Culloch, Barrack v. . . 434 — — V. Bland . 426 Macdonald, Cooper v. . . 506 R. I'. . . 56 Walter v. . 205 M'Donnell, Beavan v. . 102, 175 V. Hesilrige . . 439 Macdougall, Harnett v. . 549 M'Ewan v. Smith 74, 86 Macfadyan, Be . 467 M'Farlane's Claim . 289 M'George, Ex parte. Be Stevens . . 269 McGregor v. McGregor 584, 585 McGruther v. Pitcher . . 593 M'Guiie, Ashburner v. . . 504 McHenry, Be . 278 Sharp V. . 636 INDEX TO CASES CITED. PAGE 1 Machin, Loeschman v. 23 1 M'lver V. Humble . 468, 469 M'lvers, Howell v. 37 Mack V. Postle 616 Mackay, Re 602 Bentley v. . . 438, 439 ■ — — V. Douglas . 434 Mackenzie, lie . 104 (l), 107 V. Mackenzie 403 ■ — — Sandeman v. 410 M'Kenzie's Settlement, Be 431 M'Kenzie's Trusts, Be . 447 McKerrell, Be 450 Mackinnon, Foster v. . 198 V. Stewart . 441 Mackintosh v. Pogose . 295 V. Trotter . 142 Macklin v. Richardson 369 McKnight, Currie v. 126 127 Mackrell, Holmes v. 182 Maclean, Sanders v. 74 McLellan, Lambourn v. 144 , 146 Macleod v. Drummond 494 V. Power 460 M 'Michael, Boydell v. . 149 Macmillan v. Dent 374 McMorine, Hibblewhite v 341 McMullcn, Giblin v. 60 M'Murdo, Be . 244 (a) ,477 M'Myn, Be . 243 ,247 M'Neilhe v. Acton 469 Macoubrey v. Jones 410 M'Queen v. Farquhar . 412 Maddison v. Alderson . 84, 85 Benyon v. . 402 Madeley, Gaters v. 537 Madocks, Lewis v. 9S ,433 Magazine Holder Co., Gramo- phone Co. V. 380 Magee v. Lavell . 215 Torkington v. 40, 19V , 200 Maggi, Be, Winehouse V. Winehouse 22: i, 243 Magniac, Dashwood i'. 153 Magnus, Be . 295 Magrath, Lee v. . 436 Maguirc, Caulfield v. 246 Mainwaring v. Leslie . 574 Mainwaring's Settlement Be 431 Major V. Franklin 385 Makuna, Davies v. 192 Malam, Be . 399 Malbon, Wells v. . 581 Malcolm v. Charlesworth 540 Malcolmson, Plimpton v. 35 1,353 Malkin, Att.-Gcn. v. . 403 Mallalieu v. Hodgson . 190 Mallan v. May 196 Mallett, Dunniclifl v. MaUott V. Wilson Malone v. Minoughan Malt by v. Carstairs Man V. Shifiner . Manby v. Scott . PAGE 43, 457 . 439 . 140 . 248 . 64 545, 572, 575 . 493, 494 Banking Co. Ill 329 !4 Manchester, Re Manchester, &c, V. Parkinson Manchester, Sheifield, &c., Rway. Co., Hub- bersty v. V. North Central Wag- gon Co. .... Manders v. Williams . 22, 57 Mangles, Att.-Gen. v. . . 448 V. Dixon . . 37, 38 Naylor v. . . 64 Manila Ry., Co., Govern- ment Stock, &c., Co. V. . 345 Mann, Burnett v. . . 525 Manning, Re . . . 275 Kekewich v. . 437, 439 Manning, Matthew, case of . 394 Manor, The .... Mansell v. VaUey Printing Co Mansfield, Powj's v. March v. Head V. Russell • — — Shrager v, South V. . . . Marchant v. Morton — — Parker v. . . . Marconi v. British Radio, &c., Co Marcus, Edwards v. Mare v. Earle V. Warner . Margaiet Mitchell, The Margrett, Ramsay v. . Market overt. The case of . Markham, Bunn v. Markhani and Darter's case Markland. The . Marks, Johnstone v. Marlborough (The Duke of) V. St. John Marling, Lewis v. Marlow v. PitfeUd Marner r. Bankes Marreco ik Richardson 257, 601 Marriage, Neave & Co., Re , 105 Marriot v. Marriot Marriott v. The Anchor Re- versionary Co., Ld. . Marris, Bower v. . V. Ingram . d2 123 369 507 . 539 114,498 . 295 . 35 . 38 240 351 . 631 . 265 . 265 129, 132 84 589 483 336 129 174 166 351 174 23 477 123 260 229 lii INDEX TO CASES CITED. PAGE PAGE Marsden v. Savillc-st. Foun- Matthews v. Newby 36 dry and Engineering Co. . 353, Walker v. . 589 354 — V. Whittle . 556 Marsh, Green v. . G29 Maude, Benson v. 498 ■ — ■ — V. Keating . 55 Maugham v. Sharpe 94 Stone V. 55 MaM-, Elwes v. 144 Marshall, Davenport v 430 Mawdesley, Driver v. . 441 V. Fowler 539 Maxim Nordenfelt, &c. Co". Gardner v. . 539 V. Nordenfelt . 194 V. Green 150 152 Maxton, Cellular Clothing Holroyd v. . 99 100 Co. V. . . . 389 V. Marshall . 584, 585 Maxwell's Trusts, Re . 399 Norrish v. . 37 May V. Chapman . 209 Marshfield, lie 606 Croxton v. . 639 Marston, Ex parte 327 331 • V. King 258 ■ Stevens v. . 628 V. Lane 169 ,200 Martin, Collins v. 209 Mallan v. 196 V. Crorape . 454 Mayeu, Duck v. . 460 - — ■ — Crouch V. 36 Maynard, Basset v. 51 Harburg, &c., Co. V. . 185 Mayor, Boaler v . 248 V. Martin 415 Squire v. 149 V. Nadel 251 Mead, Re, Austin v. Mead 482 • Rogers v. 104 Meads, Taylor v. . 546 V. Sedgwick 617 Meagoe, Longstaff v. . 143 Townsend v. 504 Mears v. London and S. W. Martindale, Anderson i h 454 Ry. Co. 61, 62 V. Booth . 7 5, 115, 624 V. Western Canada &c. V. Smith 78 Co 256 Taylor v. 313 Mecca, The . 131 Marvin, Re . . 2S 0, 235 488 Mecca (Owners of), Cor\' V. . 259 Maskelyne v. Cooke 261 Medina v. Stoughton . 594 Masker, Hugill v. 85 Megaw, Field v. . 37 Mason v. Bogg 243 Mege, Hatchard ". 165 V. Bolton's Librar y, Ld'. 269 Megevand, Re, Ex parte Del- V. Briton, &c., j 4ssn., hasse 470 ,471 Ld. . 116 Meller, Paine v. . 309 Lickbarrow v. 89 Mellison, Re 303 ■ V. Morgan . 537 Mellon, Debenham v. 545,572 ,573 • V. Sainsburj^ 170 Mellor V. Leather 14 • Sharman v. . 112 Melvill, Otter v. . 431 ■ Sidwell V. 182 MelvDle v. Mirror of Life Co. 374 Mason and Barry, Leva isseur — — V. Stringer . 636 V 111 Menck, National Phonograph Mason and Taylor, Re 6() Co. of Australia, Ld. v. 593 594 Massam v. Thorley's ( Jattle Mennie v. Blake . 14 Food Co. 389 390 Mentney v. Petty 526 Masson, Templier & Co. V. De Menzies, Ex parte 175 Fries 535 558 Betts V. 351 Massy v. Hayes . 547 Mercantile Bank of London, Mather v. Fraser 143, 625 Evans v. . 39 — — • Jennings v. . 280 Mercer, Ex parte . 295 Mathers v. Green . 457 ■ V. Irving 215 Mathewson's case 258 Sawyer v. 234 Mathias, Gray v. . 192 Merchant Banking Co. of Matthews v. Baxter . 175 London w. Phoenix, &c., Co. 87 Clements v. . 98- -100 Mercier, Ex parte . . 434 ■ Helby v. . 59, 88 i V. Williams . 556 ' Houghton V. 64 1 Williams v. . 431, 556 INDEX TO CASES CITED, liii TAOE PAGE Meredith v. Fair 510 Miller, Chambers v. 254 Meredyth v. Meredyth . 582 V. Collins 543 Merioiiethshire, &c., Building V. Dell 597 Society, Jones v. 192 V. Green 104 (II) Merrett, Powell v. 527 — — Hornsby v. . 113 Merriman. Elliott v. 494 V. Miller 482 V. ^\'ard 2(50 V. Race 25 Merry, Dulancy v. 261 Rossiter v. . 187 Kingsford v. 590 Spackman v. 113 Merryweather v. Jones 584 Milles, Smith v. . 22 V. Nixan 4«1 Millidge, Smith v. 510 Mersey Docks and Harbour Millington v. Fox 383 Bd., Union Credit Mills. Re . . . 264 Bank v. 54 V. Barber 202 Williams v. . 103 V. Charles worth . 96 Mersey Steel & Iron Co. v. V. Dunham . 194 Naylor .... 258 V. Graham . 16 Meryon v. Collett 403 Millwall Dock Co. v. Clarl e 104(1) Messenger, Hammond v. 36 Milne, Ex parte . 261 Metcalf, Wise v. . 166 A.-G. V. 443 ,446 Meters, Ld. v. Metropolitan Defries v. . 40, 169 ,201 Gas Meters 366 • Stott V. 427 Meter Cabs, Ld., Re 65 ^^'almsley v. 143 Metropolitan Bank, Rum- Milner, Ex parte . 263 ,265 ball v. . . .344 ,591 Milroy v. Lord 435 ,437 Metropolitan Gas Meters v. Milvain v. Chapman . 331 British, &c., Co. 367 Minet, Gibson v. . 201 ,204 Meters, Ld. v. 366 Hatfield v. . 525 Meux, Baggott v. 550 Minna Craig Steamship Co. v. V. Bell .... 615 Chartered Mercantile B ink V. Jacobs . 143, 14(5 , 625 of India, &c. 25 Meyerstein, Barber v. . 74 Minnit v. Whinery 473 Meymot, Ex parte 268 Minoughan, Malone v. . 140 Meyrick, Attornej'-Goneral v. 507 Mirror of Life Co., Melville M. Haddon v. R. P. Banner- V. . . 374 man & Son 381 Misa, Currie v. 180 Michaelson, Chapman v. 197 Mitchel ('. Reynolds 194 Micholl V. Michell 400 Mitchell, i?e "^ . 249 Michell's Trusts, Re 431 Brooke v. 54 Michelmore v. Mudge . 541 Cohen v. . 1()9, 299 300 Mid Kent Fruit Factory, Re 290 Doe d., Esdaile v. 292 Mid Wales Ry. Co., Watson v. 38 ■ Holmes v. . 185 Middlcton, Copis v. 246 ■ Humble v. . 42, 318, 342 Midgloy V. Midgley 609 London & Midla md Midland Rail. Co. v. Pj-c 579 Bank r. 608 Turner ik . (iOl V. Mitchell . 583 Midwinter v. Midwinter 581 Whitby V. . 404 Mieville, Gorgier v. 344 Mitchelson v. Piper 223 Milbourn, Cowan v. 196 Moet V. Pickering 64 Miles V. New Zealand Alford M.ilfatt, Bank of Knglaiu r. 323 Estate (yO. ISl i\I(iUar(l. Haglev v. 510 Mill, The Queen v. 359 Mollett ('. Wac'kerbarth 178 Millage, Holmes v. 253 Molluo. March & Co. v. Court Millar, Long v. . 187 of Wards . 470 ■ V. 'J'aylor 369 Mdlony V. Kennedy- 547 Millar and Lang, Lil. v. Polak 371, Molton V. Camroux 102, 175 376 1 Monarch, &c. Socy., Horn> ey Miller, Re ... . 240 1 Local Board v. . 602 liv INDEX TO CASES CITED. PAGE 606 169 166 254 Monckton v. Payne Money, De Hoghton v. Monk, Re . Monro, Ex parte . ]\Iontagu, Ex parte. Re O'Brien V. Earl of San(l^^■ich . Montague v. Benedict . 572, 573 Bishop V. . . 14, 17, 53 Montefiore v. Guedalla . 506, 518, 616 Ramsgate Victoria Hotel Co. V. . . . Montgomery v. De Bulmes , ■ ■ V. Foy .... V. Indemnity, &c.. In- surance Co. . V. Thompson Monti V. Barnes . Montolieu, Lady Elibank v Moodie v. Bannister Moon, Ex parte . Cain V. . 73, 482, 483 Moor V. Barham . . . 526 Moore, Ex parte. Re Faithful 270 Re, Ex parte Ibbetson . 1 99 , 614 ^e(39Ch. D. 116) Att.-Gen. v. Coates V. Cochrane v. . Cramer v. V. Darton Figg V. V. Frowd Kyne v. . . . ■ i;. "Moore (1 Coll. 84) . V. (L. R. 18 Eq. 11) . . . V. Morris V. North Western Bank 97 506 545, 176 230 64 136 389 143 539 604 278 . 584 . 51 631, 637 69, 70, 75 . 431 . 482 109, 293 . 425 . 192 549 435 549 338, 340 615 • Porter v. . . V. Singer Manufactur- ing Co 67 Moore and Robinson's Bank- ing Co., Ex parte . . 629 Mordaunt v. British Oil, &c.. Ld .87 Morel V. Westmorland . 464, 573 Morgan v. Abergavenny (Earl of) V. Castlegate V. Jackson . Mason v. Nanney v. . Osborn v. 154 S.S. Co. 127 . 155 . 537 325. 329, 340 . 540 PAGE Morgan, Page v. . . 81 Rickman v. . . . 506 V. Rowlands . .601 — V. Russell . . .152 V. Seaward . . .351 Smith V. . . . 243 V. Steble . . .168 Moriggia, Gelmini v. . . 600 Morland, Waite v. . . 578 Morley v. Attenborough . 594 V. Bird . . 452, 511 V. Boothby . . .184 Crook V. . . . 271 V. Pincombe . 104 (l) Roddam v. . . . 604 Scott V. . . 562, 563 Wright V. . . .541 Mornington v. Keane . . 433 Morrall, R. v. . . . 606 Morrieson, Re . . . 581 Morris, Re . . . .67 — Re, Ex parte Webster 631 V. Delobbel Flipo 96, 100 V. Howes . . .403 V. Kearsley . . . 455 V.Lee . . . . 209 — — Moore v. . . . 549 Duke of Newcastle v. . 268 Morris, Taunton v. . 539-541 Morrison, CoUett v. . . 306 Dutton V. . . . 261 Morritt, Re, Ex parte Official Receiver . . . 94, 636 Morse, Re . . . .272 ■ Australian Steam Navi- gation Co. V. . . . 136 Morton, Honner v. . . 541 Marcliant v. . . 38 — V. Tibbett . . .81 Moseley, Nj^e v. . . .192 Moss, Re . . . .249 Burrough v. . . 537 V. Hall . . .248 V. Hancock . 25, 590 Motley V. Downman . . 383 Mottram, Walker v. . . 392 Mouat, Re . . . .434 Mouflet V. Cole . . .194 Moul V. Groenings . . 380 Moules, Rhodes v. . . 473 Moulis V. Owen . . .212 Mountstephen, Lakeman v. . 185 M. T. Shaw & Co., Ld. v. Holland . . . Addenda Mudge, Re . . . .431 Michelmore v. . .541 Mullen V. Bo«Tnan . .513 MuUiner v. Florence . 63, 93 INDEX TO CASES CITED. Iv PAGE MuUings, Phillips v. . . 440 Mumford v. Collier . . 629 Munday, Be . . . 635 Munro, Ex parte . . . 614 Murdoch, Fraser v. . . 469 Murgatroyd v. Wright . .109 Murray, Att.-Gen. v. . . 445 V. East India Co. . 608 V. Lord Elibank . 539, 540 V. Pinkett . . .617 Musgrave, Consolidated Ex- ploration Co. V. . .192 Muspratt v. Gregory . .105 Musurus Bey v. Gadban . 600 Mutton V. Peat . . .260 Mutual, &c. Life Assn., Cleaver I). . . . 308 Mutual Life Assurance v. Langley .... 616 Myers v. Elliot . . . 636 V. Perigal . . . 507 N. Nadel, Martin v. . . . 251 Nanney v. Morgan 325, 329, 340 Nanson v. Gordon . . 466 Napier, Att.-Gen. v. Nares, Re . Nash V. Hodgson . V. Inman National Bank v. Silkc National Bank of New Zea land. Ward v. . National Debenture, &c. Cor- poration, Re . National Mercantile Bank, Ex -parte. Re Haj-nes 629, 631 National Phonograph Co., Ld. V. Edison Bell &c., Co., Ld 593 National Phonograph Co. of Australia, Ld. v. Menck 593, 594 National Provincial Bank of England V. Jackson . 591 Perry v. . . 32, 249 .Small V. . . 148, (527 National Society, &c. v. Gibl)s 360 National Starch Co., AV . 385 National Telephone Co., Ld. V. Postmaster-General Addenda National Union Investment Co., Lodge V. . . .197 Natt, Re ... . 524 Nautik, The . . .126 Nawton, Woadson v. . . 51 Naylor i'. Mangles . . 64 493 581 259 174 207 248 334 PAGE Naylor, Merse}' Steel and Iron Co. V. . . 258 Wharton v. . 104 (i), 151 Neate, Franklin v. . 30, 57, 59 Needham v. Kirkham . . 433 V. Smith . . . 433 Webb V. . . . 517 Neilson v. Betts . . . 366 Nelson, The. . . .128 Neptune Marine Insurance Co., Pellas V. . . . 257 Neptune, The . . .127 Nerinckx, Van Gheluive v. . 227 Nesbitt, Robinson v. . .37 Netherseal, Rex v. . . 489 Nevin, Re . . . .193 V. Drysdale . . . 506 Newall, Re . . . .351 NewBalkis, &c., Ld., Randt, &c., Co. V. . . . 325 Newbon, Wakefield v. . . 65 Newbould and Tippetts" Con- tract, Re . . . . 559 Newby, ilatthews v. . .36 Newcastle, Duke of v. Morris 268 Newdegate, Bradlaugh v. . 193 New Eberhardt Co., Re .175 Newfoundland Govt. v. New- foundland Ry. Co. . . 38 New foundland R}'. Co., New- foundland Govt. V. . .38 New Ixion, &c., Co. v. Spils- burv . . . .364 New Land Development As- sociation and Gray, Re . 300 Newlands v. Paynter . . 548 Ncwlove V. Shrewsbury 95, 9() Newman, Re, Ex parte Brooke 171 Re, Ex parte Capper . 215 Farr v. . . . 485 V. New man . . . 307 Pi=^ge V. . . . 245 Nev.nes, .Johnson v. . . 375 Newnham v. Stevenson . 51 New South Wales Taxation Comnirs. v. Palmer . . 219 Newton, Ex parte . . 425 V. Askew . . . 439 V. Beck . . .139 Lovell V. . . . 555 V. Sherry . . 499, 519 Newton's Patents, Re . . 350 New York Breweries Co. v. Attornej-General . . 493 New York Taxi-cab Co., Ld., Re 345 New Zealand Alford Estate Co., Miles v. . . "il Ivi INDEX TO CASES CITED. PAGE 1 PAGE Nichol, Evans v. . 54 North Western Bank, Cole v. 586 Nichol's case 256 Moore v. . . 338, 340 NichoUs V. Bastard 57 Norton v. Dashwood . . 148 V. Judson 505 Emmett v. . . 575 ■ V. Norris 264 ■ V. Frecker . . 609 • V. Rosewarne 343 Lowndes v. . . 153 V. Stretton . 196 Savage v. . 321 Nichols V. Nixey . 280 V. Yates . 252 Nicholson v. Bower 81 Norwood, Elvy v. . 606 V. Drury Buildings , Es- Nottage V. Jackson . 374 tate Co. 579 Nottingham, &c. Bldg. Soc , V. Harper . 88 Thurstani;. . . 101,174 V. Revill 248 ,463 Nugent, Blair v. . . 608 NickoU, Ex parte . 271 V. Gifford . 493 Nicol's case . 337 Names v. Scipio . . 314 NicoUs, Smith t\ . 227 Nunn V. Barlo\\' . . 222 Nield, Cowern v. . 174 Drew V. . 573 Nisbet & Co. v. Golf Ag( 3ncy 374 Niirnberger &c. Wolff, Dover Nix, Bryans v. 74 Ld. V. . . . 380 Nixan, Merryweather v. 461 Nurse v. Craig . 575 Nixey, Nicholls v. 280 Nuttall, Cannington v. . 351 Nixon V. Brownlow 329 V. Hargreaves . 356, 368 Noakes, Warwicke v. . 255 ■ Lee V. . 243 Nobbs, Le^^■is v. . 426 Nve V. Moseley . . 192 Noble, Devaynes v. 25 G , 465 469 Nymph, The . 126 Vulliamy v. . 469 V. Willock 546 ,558 0. Nockolds, Hunter v. . 605 Noel V. Noel 582 Oakey & Sons v. Dalton . 165 Norbury v. Norbury 314 Oast ler. Ex parte . . 271 Norcott V. Gordon 505 Oberrheinische Metalh^erke Nordenfclt, Maxim Norden- Goldschmidt v. .' 253 felt, &c., Co. V. 194 O'Brien, Re, Ex parte Mon Norfolk Estuary Co., Hall v. 329 tagu . 97 Norman v. Baldry 498 Goddard v. . . 257 V. Norman . 584 Observer Life Assurance So V. Ricketts . 255 ciety, Hodson v. . 305 V. Thompson 256 263 O'Callaghan, M'Causland v. 223, V. ViJlars 580 244 Normandy, The . 126 Occleston v. Fullalove . . 510 Norris, Nicholls v. 264 Ocean, The . 127 Norrish v. Marshall 37 Ockenden, Ex parte 63 North, Re . . 269 O'Connell, Re 430 North American Land, &c.'. Oettinger v. Cohn 211 Co. V. Watkins . 611 Official Receiver, Ex parte North Central Waggon Co'. Re Gould 303 V. Manchester, Sheffield, Ex parte. Re Morritt 9 4,636 &c. Raih\ay Co. 84 Ex parte, Re Stephensoi 1 261 North of England, &c.. Co! Ex parte, Re Watson 96 V. Archangel Maritime In- Tailby v. . . 9 9, 100 surance Co. 311 Ogden V. Benas . 206 North and South Wales Hymas v. 20 Bank, Duncan, Fox Ogilvie V. Foljambe 187 & Co. V. 207 Ogle, Jones v. 400 ■ V. Macbeth . 202, 206 O'Hagan, Viditz v. 554 North Star, The . 136 O'Halloran v. King 550 Northcote, Skrymsher v. 513 Oldham v. Hughes 420 Northey i'. Northey . 536 Oliveira, Beaumont v. . 508 INDEX TO GASES CITED. Ivii PAGE PAGE Oliver, Ex parte . 265 Padstow, &c.. Assurance V. Hunting . 187 Assn., Re . . 332 Polglass V. . 256 Padwick, Gladstone v. . 108, 116 V. Smith 509 Page V. Morgan . . 81 Ommanney, Robinson v. 289 V. Newman . . 245 Onslo«- V. Commissioners of V. Page . 511 Inland Revenue . 397 Paget V. Foley . 605 ■ V. Onslow . 523 Pain, Lee v. . 512 Onward, The . . . 135 V. Whitaker . 58 Ooregum, &c., Co. v. Roper 335, Paine, Meller v. . . 309 336 Painter, Re . . 272 Opera, Ld., Re . . . 345 Painton, Tyrrell v. . 450, 513 Oppenheim, Wittman v. 383 Palles, Simmonds v. . 441 Oppenheimer, Re . 400 ,401 Palliser v. Gurney . 563 ■ V. Attenborough . 23 Palmer, Re . . 513 V. Frazer . 23, 587 ,592 V. Cohen . 171 Oram, Ex parte . . 263 , 264 V. Day . 290 Orient Co., Ld. v. Brekke . 311 Eraser v. . 425 Orienta, The 127 Hall V. . 192 Oriental Bank Corporation, Hay V. . 399 Re, Ex parte the Cro'\\'n . 223 V. Locke . 614 Oriental Financial Corpora- New South Wales Taxa tion V. Overend & Co. 248 , 249 tion Commrs. v. . 219 Orleans Motor Co., Ld., Re . 346 Sir T.'s case . 29 Ormerod, Crane v. 588 Vandenberg ik . 70 Ormonde, Earl of, Clarke v. 496 V. Wakefield . 544 Orr V. Dickinson . 124 V. Wheeler . . 412 Orr-Ewing v. Johnston 382 Whitehead v. . 518, 521 Johnston v. . 383 V. Wick, &c., Co. . 461 Orton, Lambe v. . 438 ■ Willis V. . 129 Osborn v. Morgan 540 Palmer s, &c., Co., Re . . 38 Osborne, Silk v. . 300 Palyart v. Lecky . . 197 O'Shea, Re . 195 Panama, &c., Roval Mail Co J O'Shea's Settlement, Re 293 Re . . \ 345 Other V. Iveson . 461 Pannell, Swift v. . .114, 626 Ottaway v. Hamilton . 574 Pape V. AVestacott . 255 Otter V. Melvill . 431 Paquin v. Beauclerk 563, 575, 576 Ottos Kopje, &c., Ld., Re . 338 Paquine v. Snary . 575 Oulton, Crallan v. 610 Pardo V. Bingham . 604 Outram, Ashworth v. . 546 555 Pardoe, Re . . 602 Overend & Co., Oriental Paris, The . . 65 Financial Corporation v. . 248, Sparrow v. . 214 249 Parish, Drummond v. . 478 Overhill's Trust, Re . 510 Parke, Blaiberg i'. 631 Overton, Gilbert v. 437 Parker, i?e (1901, 1 Ch. 408) 513 Owen, Re . 602 i?e, (1910, ICh. 581 449 Att.-Gen. v. 446 Re, Ex parte Charing Eardley v. . 433 Cross, &c.. Bank (529 Harrison v. . 258 Re, Ex parte Dann 272 V. Homan 248 Re, Ex parte Turcjuand 113, Moulis V. 212 632 Owen's Patent. Re 3()0 Re, Morgan v. Hill 247 Oxford, Earl of, Bcavan v. . 321 Re, Wignall v. Park 508 Ozard v. Darnford 575 Baldey v. 82 ■ Hoare f. 395 P. V. Marchant 240 Pacific, The 131 Stanes v. 425 Padgett, Jones v. 595 Watson V. . 239 Iviii INDEX TO CASES CITED. PAGE PAGE Parker's Policies, Re . 307 Pearson, Barclay v. . 197 Parkin, Re . 544 V. Da\^son . . 82 ■ V. Carruthers 468 Dyer v. . 73 Parkinson, Manchester, &c., Edwards v. . . 595 Banking Co. v. . 111 Foster v. . 590 Parkyns, Ross v. . 470 Freeland v. . . 512 Parlement Beige, The . 127 Lloyds Bank v. . . 615 Parrott, Alger v. . 403 V. Pearson . . 392 ■ ■ Etherington v. 572 V. Wilcock . . 301 Parry, Re . 295 Pease v. Gloahec . 85, 590 Parsons, Re . 632 Peat, Clayton v. . . 341 ■ Ex parte. Re To^\'nsend 95, Mutton V. . . 260 626 Peatland, Kirkland ih 602, 603 Bank of England V. . 323 Peck, Dawes v. . 82 ■ — — V. Brand 637 Peckham v. Taylor . 437 Parton v. Crofts . 84 Redder' s Settlement T rusts. Partridge, Wheldale v. 419 Re . . 431 Partridge, Jones & Co., Ld! Pedlej^ Hasluck v. . 401 V. Plasycoed Collieries Co., Peel V. Tatlock . . 249 Ld 67 Peel's Settlement, Re . 507 Pascoe, Fowkes v. 439 507 Peering, Ford v. . . 140 Pass, Poole v. 427 Peers, Lowe v. . 193 Patch, Channon v. 153 Pell's case . . 335 Patent Derrick Co., Thames Pellas V. Neptune Marine Ironworks Co. v. 63 Insurance Co. . . 257 Patent Lionite Co., Thomas Pelly V. Wathen . 65, 66 V 244 Pelton V. Harrison 562, 563 Patience, Re 481 Pemberton, Ex parte . 65 Paton V. Sheppard 399 Pendarves, Hartley v. . 153 Stackemann v. 375 Pendlebury v. Walker 247, 265 Patrick, Re . 435 437 Pennell v. Reynolds . 272 Patterson v. Gaslight and Pennington v. Crossley . 255 Coke Co. . 351 352 Pennistone, Waterfall v. . 625 Paul V. Children . 510 Penny v. Innes . 207 V. Paul 439 • V. Penny . 494 Pawle V. Gunn 318 Penoyre, Wood v. . 498 PaAvley v. Pawley 564 Penson v. Hickbed . 35 Paxton, Cholraelcy v. . 153 Penton, Davies v. . 215 Payne, Ex parte 272 Penwarden v. Roberts . 631 ■ Monckton v. 606 Pepin V. Bruyere . . 480 V. Wilson 59 Pepper, Maas v. . 96 Paynter, Harrison v. . 251 Percy, Re . 402 Newlands v. 548 Perigal, M.yers v. . . 507 Peach's Patent, Re 350 Perkins v. Bradley . 102 Peacock, Berriman v. . 153 Groves v. . 539 Hunt V. 612 Walker v. . . 192 ■ • V. Purvis 104 (I) Perry v. Barnett . . 343 Peacock's Estate, Re . 507 Creed v. . 542 Peake, Ex parte . 466 Davies v. . 519 Pearce, Ex parte . 636 ■ Griffiths V. . . 86 Re . . . 279 V. Jenkins . . 608 V. Brooks 196 ■;;. National Prov incial V. Gardner . 187 Bank of Engl and . 32, ■ Rolls V. 436 ,482 249 Pearl & Co., Harse v. . 197 ,306 ■ V. Truefitt . . 383 Pearly v. Smith . 399 Perryer v. Halifax . 36 Pearson v. Amicable A ssur- Peruvian Corpn. Ld., Cox ance Office 436 Moore V, , . 345 INDEX TO GASES CITED. lix PAGE 1 PAGE Fetch V. Tutin 98 1 Pickering v. Appleby . . 318 Peter v. Compton 185 186, 187 V. Bush . 592 V. Rich 247 V. Ilfracombe R. Co. 37, 321 Peterborough (Bishop of)". Johnson v. . 52, 107 Boyle V. . 409 Moet V. . 64 Peters v. Soame . 36 Pickett, Seymour v. . 259 Petre v. Espinasse 439 Pickford, Aspinall v. . . 64 Petrie v. Bury 451 V. Ewington . 37 ■ Davis V. 261, 292 Picksley, Reuss v. 187, 188 Pettitt, Thompson v. . 95 Picton, Shaw v. . . 259 Petty V. Anderson 573 Pidding v. How . . 383 ^ — Mentney v. . 526 Piddocke v. Burt . . 473 V. Stywarcl . 455 Pidgley v. Rawling . 153 Peverett, Re 490 Pierce, Beck v. . 569 Pej'toe's case 256 V. Thornley . . 541 Pfleger v. Browne 256, 265 Piercy, Re . 399 Phelp V. Amcotts 433 Pierson v. Garnet . 410 Philanthropic Society V. Piggott V. Birtles . 104 (II) Kemp 508 Clancy v. . 184 Philips V. Robinson 138 Wilder v. . 554 Phillippart v. William White- Wilson V. 408, 409 lev, Ld. . 385 Pigot V. Cubley . 57,59 Phillips, Re . 268 Pilck, Shower v. . . 73 V. Alhambra Palace Co. 200 Pillans V. Van Mierop . 180 ■ V. Cayley 407 Pilley V. Robinson . 461 V. Foxall 248 • Saint V. . 148 ■ • V. Homfray . 166 Pilling, i?e( 1903, 2 K. B. 50) 277 ■ V. Jones 19 — (1906,2 K. B. 64 1^ . 284 V. Mullings . 440 Pinchon's case . 233 V. Phillips (4 De G., Pincombe, Morley v. 104 (I) F. & J. 208) . 591 Pinet V. Pinet, Ld. . 390 (1 M. & K. 649) . 455 Pink, Re . . 258, 487 (2 Vern. 430) 457 Pinke, Hinton v. . . 5C3 Rodwell V. . 152 Pinkett, Murray v. . 617 Swann v. 189 ,615 Pinkney v. Hall . . 473 Phillips' Trusts, Re 613 , 615 Pinnel's ca.se . 256 Phillipson v. Haytcr . 572 ,573 Pinney v. Hunt . . 518 Philpot V. Briant 249 V. Hurst . 490 Philpott, Ex parte 261 Pinto V. Badman . 383, 388 ■ Bird V. 300 Piper, Cradock v. . 425 V. St. George's Hospital 509 ■ Mitchelson . . 223 Phipps, Holford v. 427 Pitcher, McCJruther v. . 593 V. Lovegrove 38 Pitchford v. Davis . 327 Phccnix Assurance Co., King Pitfeikl, Marlow v. . 174 V 254 Pitt, The . . 131 Phoenix, &c., Co., Merchants' — ■ — • Higgins V. . . 265 Banking Co. of Pitts V. Carpenter . 257 Loi\don V. 87 V. George . 376 ■ V. Spooner . 309 Pixell, Caldow v. . . 167 Phosphate Sewage Co., Beg- , Plaice, Russell v. , . 494 bie V. . . . 190 Plasycoed Collieries Co., Photo Co., Pollard v. . 375 Ld. V. Partridge, Jc )nes & Picard, Edwards v. 43 ,392 Co., Ld. . . 67 Pickard, Re . 508 Piatt, Ranson v. . . 60 Hall V. . . 62 Player, Re . . 294 V. Sears 25 Plimmer, Carney v. . 195 Picker v. London and Comity Plimpton V. MaJcolmsc )n 351, 353 Bank 34^ ,586 V. Spiller . 352 Ix INDEX TO CASES CITED. PAGK PAGE Plumnier, Ex parte 288 Pott V. Brassey . . 432 ^e(lPhil. 56) . 466 — V. Clegg 240 i?e(1900, 2 Q. B. 790). 294 — — Credit Co. v. 629 Bulteel V. . 408 Watson Laidlaw & Co. v. 366 Plumptre's Marriage Settle- Potter V. Duffield 187 ment, Re . 430 Kirby v. 503 Plymouth (Earl of), Ridout v. 535 Pottinger, Ex parte. Re Pockett's, &c., Co., Cahn v. 80, 88, Stewart . 239 90 Potts, Re, Ex parte Taylor . 514 Pocock, Brown v. 548 V. Bell . 190 Roberts v. . 504 Powe, Shafto v. . 227 Pogose, Mackintosh v. . 295 Po^\ell, Re . 271 Polak, Miller & Lang, Ld. v. 371, V. Birmingham, &c. ,Co". 390 376 — — V. Hellicar . 483 Polglass V. Oliver . 256 Jones V. 104 (I) Polgrenn v. Feara 141 V. Lloyd 261 Policj' No. 6402 of Scottish, V. London and Provin- &c., Assurance Society, cial Bank 329 340, 341, Re 439 617 ,618 Pollard, Hylton v. 27 V. Merrett . 527 V. Photo Co. 375 V. Powell 440 ■ V. Pollard . 582 — — V. Rees 165 , 166 Pollard's Settlement, Re 550 Power V. Barham 594 Pollitt, Re . . . 292 ,293 McLeod V. . 460 Pollock V. Pollock 401 Powers, Re . 603 ,604 Poltimore, Ilfracombe, &c., Powles V. Innes . 310 ,311 Railway Co. v. . 329 Powley, Beauchamp v. 60 Ponsford v. Union Bank of Powys V. Mansfield 507 London . . .268 292 Prance v. Sympson 182 Ponsonby v. Ponsonbv 582 Prater, Re . 42 Pontida, The . ". 128 135 Pratt V. Harvey . 509 Pook, Dowden v. . 195 Wallis V. 596 Poole V. Adams . 309 Preist V. Last 596 Barclay & Co., Ld. v. . 120 Premier Underwriting A 5sn., Crofton V. . 300 Ld., Re . . . 339 V. Pass 427 Prentice, Boulton v. 574 Poole's case . . . 146 150 Prescot, Snee v. . 89 Poole's Estate, Re 555 Prescott V. Boucher 538 Pooley V. Driver . 468, 470-472 Holmes v. . 404 Pope, Re ... . 295 Hopkins v. . 196 Freeman v. . 434 Presgrave, Birkley v. . 136 Haslewood v. 221 Prested Miners Co. v. Gar dner 85 Rusden v. . 135 V. Garner, Ld. 188 Pope's Electric Lamp Co., Preston, Castellain v. 170 308 Re 385 ■ — ■ — V. Christmas 256 Popplewell, Ex parte, Re Rayner v. . 309 Storey . . . 629 631 Prestwood, Durant v. . 525 Porter v. Moore . 615 Price, Re, Stafford v. Stafford 557 — ■ — Sprye v. . . . 193 ■ V. Barker 463 ■ Watts V. . . . 321 V. Berrington 102 Portland (Duke of), Top- V. Green 196, 214 ham v 412 Harrington v. 138 Post Card, &c. Co. v. Samuel 363 Hj^de V. 245 Postle, Mack v. . 616 ■ Lord V. 54, 67 Postmaster-C4cneral, Ex parte. Read v. 461, 607 Re Bonham 219 V. Richardson 184 National Telephone Co., Prichard, Lloyd v. 431 Ld. V. . . . Addenda 1 Pride v. Fooks 426 INDEX TO CASES CITED, Ixi PAGE 545 547 72 389 128 131 513 509 465 37 219 and Prideaux v. Lonsdale . Lee V. . Prigoshen, iiJr Prince, Goodfellow v. . Prince of Saxe-Coburg, The Princess Alice, The Pring V. Pring Pritchard v. Arbouin . Lodge V. . . . Riccard v. . Thomas v. . Pritchett v. English Colonial Syndicate Proctor V. Bayley Prole V. Soady . 541, 580, 581 Prosser v. Edmonds . .169 Protheroe, Williams v. Proudlej' v. Fielder Provincial Bank of Ireland, Fullerton v. . . . Provincial Bill Posting Co. v. Low Moor Iron Co. 104 (i) Provincial Union Bank, Rose- field V. . . . . Prudential Assurance Howes V. . Pryor v. Pryor Prj^se, Be . Pugh V. Arton V. Riley Cj'cle Co. V. Stringfield Taylor v. Pulham, Firman v. Pullan V. Koe PuUen V. Purbecke Pulling V. G. E. Ry. Co. 252 160 200 547 180 146 637 Co., )18, 436 412 521 . 144 . 380 . 454 . 545 . 426 100, 611 . 109 . 165 Ex parte Co. Pulsford, Re, Hayman . Pumfrey, Be Pump House Hotel Hughes V. Purbecke, Pullen v. Purcell, Fitzhardinge v, Purdaj', Chappell v. Purde^\■ v. Jackson Pursell, Lavery v. Purvis, Peacock v. Pye V. British Automobile, &c., Ld. . 214 Midland Railway Co. ?> Pym V. Great Northern Rail way Co. V. Lockyer . Sweet V. Q. Queen, The. See R. Quickens Trusts, Be 468 295 39, 199 . 109 50, 156 . 369 . 541 . 152 104 (I) 216 579 163 507 67 309 R. PAGE R., Be . . . . . 160 V. Birmingham Count}' Court Judge . . 229 V. Capper ... 42 V. Carnatic Railw ay Co. 555 V. Collector of Customs 454 V. Comptroller-General of Patents . . 357 V. Cotton ... 13 Grossman v. . . 444 Feather v. . . . 354 V. Humphris . . 441 V. Jackson . . . 583 V. Judge of City of Lon- don Court . . 127 V. Londonderry, &c., Railway Co. . . 329 V. Lords of the Treasury 399 V. M'Donald . . 56 V. Mill . . . .359 V. Morrall . . . 606 V. Netherseal . . 489 V. Read . . . 156 Rustomjee v. . . 606 V. Sampson . . . 595 V. Sankey ... 66 V. Townley . . .154 V. Twine ... 30 V. Wheeler . . .351 V. Wilson . . . 268 Race, Miller v. . . .25 Rachfield v. Careless . . 513 Rackham v. Jesup . . 51 Witherby v. . . 543 Radburn v. Jervis . . 312 Radcliffe, Be . . . 220 Anderson v. . .169 Raggi, Be . . . Addenda Rainford v. James Keith, &c., Ld 338, 342 Ralph, Bird v. . . .166 Ralston v. Smith . . . 359 Ralston's Patent, Be . . 367 Ram, Ex parte . . .612 Ramsay v. Margrett . . 84 Ramsbottom, Hooper v. . 140 Ramsden v. Brearley . . 579 V. Smith . . .431 Ramsgate Victoria Hotel Co. V. Montefiore . . .176 Randal v. Cockran . . 1 70 Randall v. Randall . . 455 V. Russell . . . 396 Tappenden v. . .197 Randt, &c., Co. v. New Balkis, &c., Ld. . . 325 Rankin, Holderness v. . . 113 Ixii INDEX TO CASES CITED. PAGE 1 PAGE Rankin v. Weguelin 482 Reid V. Reid (31 Ch. D. 402) 557 Rann v. Hughes . 177- -180 V. (33 Ch. D. 220) 539 Rannie v. Irvine . 194 ■ — — V. Teakle 572 Ranson v. Piatt . 60 — — West V. 616 Raphael v. Bank of Eng and 590 Reid Newfoundland C 3. V. Rapid Road Transit Co. , Re 66 Anglo-American Telegraph Rashleigh, Tremayne v. 430, 580 Co., Ld. . 428 Ratley, Kilpin v. . 73 Reilly v. Jones 214 Rattenbury, Ee . 505 Lockhart v. . 247 Ravenshaw v. HoUier . 441 Reindel v. Scliell . 215 Rawling, Pidgley v. 153 Reis, Re 99, 199, 268, 289, 295 ,433 Rawlings v. Jennings . 314 Reliance, The 128 Rawlinson, Williams v. 260 Remington v. Stevens . 609 Rawson v. Johnston 86 Renad, Lauri v. . 380 Rayner v. Preston 309 Reneaux v. Teakle 573 Saffron Walden, &c., Republic of Costa Rica v. Building Society v. . 613 Strousberg 251 Read v. Bailey . 466 Reuss V. Picksley 187 188 ■ — ■ — Belding v. . 99 Revill, Nicholson v. 248 463 V. Brown 39 Rex. See R. Donellan v. . 180, 188 Rey, Lecouturier v. 389 Fells V. 20 Reynolds v. Ashby 25, ■ V. Price 461 607 143, 144 148 — R. «;. . 156 Bodley v. 93 Reader v. Kingham 185 V. Bowley . 468 Real and Personal Advance Mitchel V. . 194 Co. V. Clears 037 Pennell v. 272 Reay, Cookson v. 420 ■ — — ■ Robinson v. 209 V. Richardson 256 Rhoades, Re 244 (A) Reddaway v. Banham . 389 Rhodes, Re . 175 Redditch, Local Boart of', V. Dawson . 275 Law V. . . . 214 Howard v. . 420 Redfern, Livesay v. 504 ■ V. Monies 473 Redman, Fuller v. 009 ■ V. Smethurst 008 Redmond, Fuller v. 227 Stewart i'. . 321 Reed and BoA^'en, Ex parte . 277 R. J. Lea's Application ,Re'. 385 Re, Ex -parte Brow 11 025 Riccard v. Pritchard . 37 — — V. Wilmot . 115 , 116 Rice, Butler v. 255 Rees, Davies v. . 95 ,636 V. Shute 404 V. Bernardy 193 ■ Weall V. 500 Jolly V. 572 ,573 Rich, Peter v. 247 V. Keith 540 Richards v. Delbridge . 27, Powell V. 165 , 166 70, 97 435 Reeve, Beaumont v. 180 , 192 V. Heather . 461 ,405 V. Jennings . 186 , 187 V. James 624 Tatham v. . 195 V. Kidderminster Over- V. Whitmore 100 seers 639 Reeves v. Barlow 100 V. Richards . 537 V. Capper 95 V. Syms 258 Refuge Friendly Society, — — Wilding V. . 441 Howard v. 306 Richardson, Ex parte . 469 Regina. See R. Re 436 Reichardt v. Sapte 370 V. Bank of England . 330 Reid, Re . . . 481 V. Brown 594 — Axford V. 556 V. Gilbert 375 V. Hollinshead 472 V. Greese 505 V. Joannon . 639 Grice v. 87 • V. Macbeth . 79 V. Harris 629 INDEX TO CASES CITED. Ixiii Richardson v. Horton • V. Jenkins • — — Macklin v. Marreco v. Price V. Reay v. St. Thomas' s Hospital 257 PAGE 461 234 3(i9 (501 184 256 PAGE 280 . 115 . 460 . 473 419, 441 . 409 V. Smallwood Warwick v. Riches, Be . Ricketts, Griffith ■;;. Loftus Norman v. . . . 255 Rickman v. Morgan . . 506 Ridgway, Re . . .72 V. Clare . . . 465 ■ V. Wharton . . .187 Ridler, Re . . . .434 Ridley v. Ridley . . .186 Ridout V. Earl of Plymouth 535 Rigby, Jennings v. . 234, 235 Rigel, The . . . . 133 Rigg V. Earl of Lonsdale . 157 Riley Cycle Co. , Pugh v. . 380 Rileys, Ld., Re . . . 261 Rio Tinto, The . . 127, 131 Ripley v. Water\\ orth . . 323 Ripon City, The . . 126, 127 Risdon, Lee v. . . . 146 &c.. Works V. Furness 338 Rival Granite Quarries, Ld., Evans v. . . . 345, 346 Robarts, Goodwin v. 25, 344, 591 Robert Peel's (Sir) Settled Estates, Re . .417 Tab. Roberts, Re . 199, 300, 301 ■ Re, Ex parte Brook Re, Evans v. Roberts Re, Goodchap Roberts Cave V. V. Cooper Evans v. Fisher v. ■ V. Gray Penwarden v. V. Pocock V. Roberts (11 N. S. V. (13 Q. 794) . ■ — — Ryal V. Shoolbred v. V. Spicer V. Walker . V. Wyatt Robertson, Durham v. 144 84 151, 215 527 542 152 . 207 Addenda . 631 . 504 Jur. 912) . 438 B. D. 634—636 . 94 . 300 . 547 . 102 . 54 39, 458 Robertson, South Western Loan and Discount Co. v. Robins v. Robins 104 160) 322 578 578 601 . 548 104 (I) . 321 . 81 . 508 . 461 251 28, 99, 100 . 461 562 Robinson, Re (27 Ch. D (1911, 1 Ch. 502) Brandon v. . Challoner v. Crow V. Cusack V. V. Geldard . V. Geisel Goodman v. Hallas V. • V. Harkin Jay V. . V. Lynes V. Nesbitt . • V. Omnianney Philips V. Pilley V. V. Reynolds . V. Robinson . Shearman v. V. Wheelwright Robinson's Patent, Re Robinson's Settlement, Re Robson, Re Buck V. Roby, Re Roche, BourdiUon v, Roddam v. Morley Rodick V. Gandell Rodocanachi, Burnand v. Rodway, Sanders v Rodwell V. Phillips Roe, Taylor v. Roger V. The Comptoir d'Es compte de Paris Rogers, Re . . 283, 300, 301 Re, Ex parte Challinor 629 V. Acaster . — — Chaplin v. . ■ V. GiT&y V. Jones V. Kenna}' . V. Martin V. Spence Steers v. V. Whiteley . Rogers' Trusts, Re Rolle, Ryall v. Rolls V. Isaacs V. Pearce Rolph, Ex parte, Re Spindler Roope V. D'Avigdor 566 566 37 289 138 461 209 426 469 548 352 197 42 . 40 513,514 . 255 . 604 . 37 . 310 . 584 . 152 . 226 89 543 73 63 , 161 30, 54 . 104 , 168 . 457 , 252 . 399 . 113 . 352 436, 482 629 55 Roots V. Williamson 338, 340, 617 618 Roper, Re . . . .568 Ixiv INDEX TO CASES CITED. PAGE Roper, Re, Ex parte Bolland 629, 631 Ooreguin, &c., Co. V. Roper Roscorla v. Thomas Rose V. Buckett . Leicester v. . V. Rose Rosefield v. Provincial Union Bank .... Rosenthal, Young v. . Rose-H-arne, Nicholls v. Rosier, Shackell v. Ross V, Adcock . ■ V. Army & Navy Hotel Co. . . . V. Buxton . ■ Geake v. . . . V. Parkyns . Ross' Trusts Rossiter, Britain v. V. Miller Rotax & Co., Jackson v. Rothwell, Harris v. Rouch V. Great Western Rail Co Round, Addison v. Roundell v. Brearey Round wood Colliery Co., Re Rous V. Jackson . Rouse V. Bradford Banking Co Routledge v. Dorril ■ Low V. Row V. Dawson . Rowcliffe, Wood v. Rowe, Re . Rowland, Clegg v. Fothergill v. ■ and Crankshaw, Re Rowlands, Cope v. ■ Kynoch, Ld. v. . Morgan v. . Rowles, Ryall v. . Ro■^^•ley v. Ro\\'ley Royal Arch, The . Royal Bank of Scotland v. Tottenham Royal Exchange Corporation, Collingridge v. Gedget^. . . 195 Royal Mail Co., European Co. V. . . .^ . Royal Warrant Holders' Assn. V. Deane .... Rojle, Re . 335, 336 505 181, 594 168 265 584 637 351 343 190 166 639 . 65 . 245 . 470 524, 549 85, 185 187 596 352 292 54 433 628 413 249, 469 411,413 . 372 . 36 . 20 . 255 . 499 . 20 . 468 . 191 51, 52 . 601 72, 254 . 584 . 129 205 309 196 123 383 497 PAGE R. P. Bannerman & Son, M. H addon v. . . .381 Rudd V. Bowles . . .178 Ruddell V. Dobree . . 482 Rudge V. Winnall . .150 Ruding, Spalding v. . .90 Rumball v. Metropolitan Bank . . . 344,591 Rummens v. Hare . . 258 Rumney, Lowis «;. . . 609 Runder, Hallcn v. . 146, 150 Rusden v. Pope . . 123, 135 Rushforth v. Hadfield . . 64 Russell, Ex parte. Re Butter- worth . 295, 434 V. Amalgamated So- ciety of Carpenters . 196 Douglas V. . . .134 Huntley v. . . .166 Lyde v. . . . 144 March v. . .1 14, 498 Morgan v. . . .152 V. Plaice . . . 494 Randall v. . . . 396 Rustomjee i>. R. . . . 606 Rutland, Duke of, v. Duchess of Rutland . . .525 Rutt, Ha\\kins v. . . 255 Rutter V. Everett . .614 Ryal V. Roberts ... 94 Ryall v.Rolle . . .113 V. Rowles . . 72, 254 Ryder v. Womb well . .174 Ryley, Re . . . .275 S. Saddlers' Co. v. Badcock . 308 Sadler, Bain v. . . .221 Howard v. . . . 343 Webbv. . . .403 Whiteman v. . .191 Safety Explosives, Ld., Re . 6() Saffery v. Elgood . . 104 Welton V. . . 335, 336 Saffron Walden, &c., Build- ing Society v. Rayner . 613 Sainsbui'y, Mason v. . .170 Saint V. Pilley . . . 148 St. George's Hospital, Phil- pott V 509 St. John (Lord) v. Boughton 603 Duke of Marlborough v. 166 St. Peter's Churchwardens, Johnson v. . . . 200 St. Thomas's Hospital v. Richardson . . . 280 Sainter v. Ferguson . .214 Salaman, Re . . . 503 INDEX TO CASES CITED. Ixv PAGE Salmon, Bolton v. . 248 Salomon v. Salomon & Co. . 322 Saloon Omnibus Co., Hale v. 116 Salt, Andrew s v. . . 193 ■ — ■ — Stead V. . 474 Salter, Batstone v. . 439 CraA\cour v. . 113 Sampson, Baker v. . 574 ■ Reg. V. . 595 Samson, Re . . 234 Samuda, Zwinger v. . 74 Samuel, Clough v. 99, 271 V. Howarth . . 248 • Post Card, &c., C 0. V. . 363 • AUen & Sons, Ld , Re . 143 Sandeman, Deverges v 57, 341 V. Mackenzie . 410 Sanders, Bloxara v. . 86 V. Maclean . . 74 V. Rodway . . 584 Sanderson v. Bell , . 63 V. Collins . 60 Sandwich, Lord, ca.se o^ f . 412 ■ Earl of, Montagu V. . 506 Sandys, \A'arburton v. 421, 422 Sanger v. Sanger . . 556 Sankey, Rex v. . . 66 Saptc, Rcichardt v. . 371 Saracen, The . 129 Sargent, Higgins v. . 245 Sargent's case . 341 Saumarez, Re . 262 Saunders, Re . 283 De Mautort v. . 464 ■ V. EdM-ards . . 599 • V. Sun Life, &c., C 0. . 390 V. Wakefield . 184 V. White . 637 V. Wiel . 380 Savage, Browne v. , 615 V. Norton . . 321 Savill V. Bare hard . 64 Saville Street Foundry Engi- neering Co., Marsden V. . 353, 354 Sawyer v. Mercer . 234 Whittem v. . . 539 Saxby v. Fulton . . 2T2 Sayer, Herbert v. . 300 Sayers v. Collier . 160, 161 Scarborough v. Borraar 1 . 548 Scarborough, Corporat on of V. Butler . . 258 Scarf V. Jardine . 464, 469 Scarlett v. Hanson . 110 Scarpellini v. Atcheson . 537 Scattergood v. Sylveste r . 15 Schauer i'. Field . . 380 PAGE Schell, Reiudel v. . .215 Schembri, Somerville v. . 382 Schmitz, Ex parte . . 270 SchoHeld, Hammond v. . 460 Scholey, Scott v. . . .110 Scholfield V. Spooner . . 432 Schuler, Edelstein v. . . 344 Sch^^•abe, Clift v. . . . 305 Scipio, Numes v. . . .318 Scorell V. Boxall . . . 152 Scotia, The . . . .127 Scott, Re (1901, 1 Q. B. 228) 512 Re (1903, 1 Ch. 1) .507 ■ Re, Ex parte Scott . 271 tJ. Bank of England . 319 V. Brown & Co. . 190, 197 Campernown v. . . 66 Driver v. . . . 426 Evans v. . . . 415 V. Lord Hastings . .321 Hillt; 61 1;. Jones . . . 611 Manby v. . 545, 572, 575 V. Moi-ley . . 562, 563 v. Scholey . . .110 1;. Shepherd . . . 17 V. Spashett . . 539, 540 Scott & Co., Strang & Co. v. 136 Scottish Union, &c.. Simp son V. . . . Scratton, Le Vasseur v. Seabrook, Re Seal V. Claridge Searle v. Law Sears, Pickard v. . Seaton v. Deerhurst ■ V. Seaton Seaward, Morgan v. Sebright, Baker v. Seccombe, A.-G. v. Secretary of State for War v. Wynne Sedgwick, Martin v. Seear v. Lawson . Seebohm, Warne v. Seed V. Bradley . V. Higgins . Segredo, The Selig, &c., Co., Glenville v. Selina, The . Sellar v. Chas. Bright & Co., Ld 346 Selwyn, Kelly v. . . . 613 Semet and Solvay's Patent, Be . . . . 350, 354 Seroka v. Kattenburg . . 570 Serpy v. Holland . . .372 Seton, Clarke v. . . 237 54 309 541, 554 407 631 437 25 219 553 351 150 444 104 (I) 617 168 3()9 637 358 129, 132 377 130 W.P.P. Ixvi INDEX TO CASES CITED. Severn, &c., Ry. Co., Re Sewell, Re . • V. Burdick . Caramell v. . Seymour v. Pickett Seyton, Re . Shackell v. Rosier Shaftesbury, Earl of, Lewers PAGE 613 219 74, 134 25 Shafto V. Power . Shardlow v. Cotterell . Sharman v. Brandt V. Mason South Staffordshire Water Co. v. Sharp, Bullen v. . . . 470 ■ V. Lush . . 494, 495 V. McHenry . . . 635 Sharpe v. Birch . . .631 ■ Maugham v. . . 94 Shaw, Badger v. . .113. 624 V. Benson . . . 322 ■ V. Gates . . .428 V. Crompton . . 603 V. G. W. Ry. Co. . .61 • ■ Hodgson V. . . . 246 • V. Picton . . . 259 Shearman v. Robinson . 469 Shears v. Goddard . . 293 Shee, Clarke v. . . . 590 Sheen, Ex -parte. Re AVin- stanley . . . .272 Shelfer v. City of London, &c., Co 160 Shelley, Gill v. . . .510 Shepard, Stainbank v. . 128, 129 Shepherd, Re, Ex parte Ball 55 Cooper V. . . .93 V. Harris . . . 426 V. Kain . . . 594 Scott V. ... 17 Sheppard v. Duke . . 602 ■ Patonu. . . .399 V. ShepiDard . . 574 Sherrard v. Gascoigne . . 155 V. Sherrard . . . 399 Sherrington v. Yates . . 537 Sherry, Re . . - .259 Newton v. . . 499, 519 Sherson, Bothamley v. . 503 Sherwood, Re . . . 425 ■ Southey v. . . . 369 Shew & Co., Skinner & Co. v. 367 Shewen v. Vanderhorst . 609 Shields, i?e . . . 439,507 Shiffner, Man v. . . . 64 Shilling V. Accidental Death Insurance Co, . • . 305 259 307 190 160 227 187 84 112 PAGE 199, 283, 301 V. Lord . 426 . 78 . 264 . 430 300 452 588 625 391 73 295 95, 96 464 503 636 257 368 168 182 389 84 63 300 207 35 Shine, Re Shipbrook (Lord) Hinchinbrook . Shipley v. Davis . Shipman, Bush v. Shirley, Fisher v. Shoolbred v. Roberts . Shore, Lady v. Billingsley Shorey, Sodeau v. Shorrock, Boyd v. Shove, Thynne v. Shower v. Pilck . Shrager v. March . Shrewsbury, Newlove v. Shute, Rice v. Shuttleworth v. Greaves Sibley v. Higgs . Sibree v. Tripp Siddell, Vickers & Co. v. Sidney, Hodgson v. Sidwell V. Mason . Siegert v. Findlater Sievewright v. Archibald Silber, Gordon v. Silk V. Osborne . Silke, National Bank v. Silkstone and Haigh Moor Coal Co., Wheatley v. . 345 Sime, Caird v. . . . 369 Simmonds v. Palles . . 441 Simmons, Farebrother v. . 84 — — V. Gutteridge . . 487 Heseltine v. . . 635 London Joint Stocli Bank v. . . . 344 Lumley v. . . . 636 ■ V. Swift ... 78 V. Woodward . . 637 Simon, Re . . . .267 Simond v. Hibbert . . 64 Siraonds v. White . .136 Simonson, Re . .271, 293 Simpson, Cowell v. . 64, 67 V. Egginton . . . 255 V. Hartopp . . 104 (i) — — V. Ingham . . . 259 % — V. Lamb . . .169 V. Scottish Union, &c. 309 Thompson v. . .412 V. Thomson . . .170 Sims V. Thomas . . 434, 605 Simultaneous &c. Syndicate V. Foweraker . . .111 Sinclair, Re, Ex parte Chap- lin .. . 272 Re, Ex parte Payne . 293 V. Fell . . . .580 — ■ — V. Jackson . . . 606 INDEX TO CASES CITED. Ixvii PAGE Sing V. Leslie . . .410 Singer Manufacturing Co. v. Clark . . .587 V. London and S. W. Ry. Co. . . 62 V. Loog . 383, 389, 390 Moore v. . . .67 V. Wilson . . 383, 390 Sinnett v. Herbert . . 509 Sinnott v. Bowden . 252, 309 Sirdar Rubber Co. v. Walling- ton . . . . .351 Sisters, The . . . 131, 132 Skarf V. Soulby . . . 434 Skeen, Hogg v. . . . 473 Skene v. Cook . . . 602 Skey V. Barnes . . .414 Skillern, Amies v. . . 452 Skinner, Re . . . . 497 Braithwaite v. . . 36 V. Upshaw ... 62 Skinner & Co. v. She^\■ & Co. 367 Skip, Ward v. . . .70 Skipper v. Tucker . . 39 Skrymsher v. Northcote . 513 Slater, i?e . . . 504.511 ■ Stubbs V. . . .341 Slatter v. Slatter . . . 585 Slazenger & Sons v. Spalding 383, 384 Sleech v. Thorington . . 503 Slingsby's case . . 451, 454 Small, Churchill v. . . 140 Jeffereys v. . . . 454 V. National Provincial Bank of England . 148, 627 Smallpiecc, Irons t\ Smallwood, Richardson v. . Smart, Hooper v. TanTier v. . V. Tranter . Smarte v. Edsun . Smellie, Fry v. . Smethurst, Rhodes v. . Smith, Be (1903, 1 Ch. 373) Re, Ex parte Brown Re, Hands v. And^e^\ s Re, Robson v. Tidy Abbot V. . . . Alcock V. . Allen V. . . . V. Anderson Antoniadi v. Antrobus v. . V. Betty V. Bond Bromley v. . — V. Cannon . 70 115 115 600 538 462 341 608 ()50 232 229 . 431 . 461 . 25 . 63 . .332 76, 632 . 70 259. 609 . 237 . 196 . 272 Smith, Carpenter v. V. Chichester V. Clark Coleman v. . Fisher v. Fleming v. . V. Gold Coast, &c Gray v. Henry v. V. Hill Home Maiine ance Co. v. Horwood V. . V. Hudson . V. Hughes . V. Hurst Hutchings v. V. Jarvis V. Keating . V. Kendall . V. Lucas M'Ewan v. . Martindale v. V. Milles V. Millidge . V. Morgan . Needham v. V. Nicolls V. Oliver Pearly v. Ralston v. . Ramsden i'. . V. Smith (ID. &I; V. (2 Cr. i 231) . V. Timms Turner i\ Vernon t\ Wallis V. Walter v. Young V. Smithard, Cornforth v. Smithcrs v. AVheatley Smurthwaitc ?». Hann Smyth, Houliston v. Willson V. . Snary, Paquine v. Snee v. Prescot . Sneezum, Re, Ex parte Snell, Re . Snellgrove v. Baily Snow, Goddard v. ■ — — ^\'ilbraham v. Snowdon, Ex parte Soad,y, Prole v. Soamc, Peters v. . Soane, Conduitt v. Soar V. AshwcU . Ld. P.A.GE 351 65 205 386 64 168 185 391 603 603 310 589 81 198 441 541 472 441 34 554 , 86 78 22 510 243 433 227 509 399 359 431 499 74 !14- 472, '^y 684) M. . 615 . 272 . 38 . 309 216 59 431 182 474 49 574 579 575 89 289 66 482 545 54 248 541, 580, 581 . 36 . 396 . 6U e2 Davis Ixviii INDEX TO CASES CITED. PAGE Societe Generale tie Paris v. Geen . , 203,264 • V. Walker . . . 338, 340, 341, 617, 618 Sodeau v. Shorey 588 Softlaw V. Welch . 563 Solari, Kelly v. . 001 Solicitor to the Treasury v. Lewis .... 483 Sellers v. LaMrence 167 Solomon, Attenborough v. . 494 Solomons, Re . . . 297 Soltykoff, jRe 174 Somerset, Re . . 420 428 ■ Duke of, V. Cookson . 20 Somerville, Hotham v. 140 V. Schembri . 382 Somes, British Empire Ship- ping Co. V. . . . 63 Sophie, The .... 131 Souch V. Strawbridge . 180 Soulby, Skarf v. . 434 South V. March . 35 South American, &c., Co., Re 232 South Carolina Bank v. Case 473 S. E. Raihvay Co., L. C. & D. Railway Co. v. South Staffordshire Water Co. V. Sharnian South-Western Loan and Dis- count Co. V. Robertson Southby, Eaton v. Southcote's case . Southern Counties Deposit Bank, Tuck v. . Southey v. Sherwood . Southport, &c., Banking Co. V. Thompson . Southwood, Wild v. Soutten, Deare v. Sowiay, Lingen v. Spackman, Re . . . V. Miller V. Timbrell . Spalding, Alsager v. V. Ruding . Slazenger & Sons v. 245 322 20 11 76 369 Spargo's caae Sparkes, Hinton v. Sparrow, Ex parte ■ V. Paris Spashett, Scott v. Speight, Re, Speight Gaunt Spence v. Healey ■ Rogers v. 143 . 293 . 574 . 420 . 268 . 113 . 114 . 265 . 90 . 383, 384 . 335 . 216 . 116 . 214 539, 540 ■L'. . 427 . 250 . 168 351 311 PAGE Spence v. Union Marine In- surance Co. ... 49 Spencer, Hill v. . . .192 Hudson V. . . 482, 506 ■ V. Spencer . . .410 Spettigue, White v. . . 586 Spicer, Roberts v. . . 547 V. Spicer . . .491 Spiers, Thompson v. . 014, 010 Spiller, Chapman v. . . 595 Plimpton V. . Spillers and Bakers, Ld. Sti-ass V. . Spilsburv, Nc\\- Ixion. &c. Co. u. "^ . . . . 304 Spindler, Re, Ex furic Rol})h 029 Spink, Hargreave v. . 15, 589 Spirett V. Willows . . 539 Spooncr, Phoenix, &c., Co. f Scholfield v. Vandenbergh v. Sprague, Ex parte Sprange v. Lee Spratt, Re . Sprigg, Cross v. . Sproule, Bouch v. Sprye v. Porter . Squib V. Wyn Squire v. Mayor . V. Whitton . Stackemann v. Paton Stafford (Earl of) v. Buckley Stahlschmidt v. Lett Stainbank, Davies v. V. Penning V. Shepard Stallw ood, Tharpe v. Stamford, Heard i'. Stam])er i>. Barker Standard Manufacturing Co.. Re Standing v. Bowring Stanes v. Parker . Stanford, Ex parte Staniland v. Willott Stanley v. Bernes Lobb V. Stannard, Angler v. Stansfield v. Cubitt Stanton v. Brown V. Hall Webb V. Stapleton v. Haymen Starr, Sturge v. . Stead, Butcher v. — IK Salt . Steadman v. Hockley 309 432 83 467 564 419 258 398 193 30 149 248 375 312, 313 009 248 128, 129 128, 129 . 518 . 544 . 585 111, 639 . 439 . 425 . 636 . 483 . 480 . 187 . 427 113, 024 . 155 . 540 . 251 . 120 . 591 . 296 . 474 . 66 INDEX TO CASES CITED. Ixix PAGE 57,59 . 168 . 25(5 . 325, 338 , 247 . 473 . G32 . 457 , 189 , 539 , 2«0 . 251 146 . 610 . 353 613, 614 . 537 . 256 . 38 . 65 . 261 . 214 . 359 . 593 65 110 144. Stear, Johnson i\ Steble, Morgan v. 8tcc(ls V. iStceds . ytocl, Borland's Trustee v. V. Dixon Steele, Swan v. Steer, Connelly v. Steers v. Rogers . Steinkeller, Devaux v Steinmitz v. Halthin Stenning, lie Stennings, White v. Stephens, Ex parte Re Edgeberr3^ v. V. Green Hart V. Holman v. . V. Venables . V. Weston . Stephenson, Be . Diestal v. Stepne}', &c., Co. ;'. Hall Sterious, Taddy v. Sterling, Ex parte Stern v. Tegner . Stevens, Be, Ex parte Me- George . . .269 ■ V. Evans . . . 105 V. Marston . . . 628 Remington v. . . 609 V. Trevor-Garrick . .559 Stevenson v. Blakeloek . 64 Hesse v. . . . 392 Newnham v. . .51 Tohv. . . .605 Steward v. Greaves . .331 Stewart, Be, Ex parte Pot- tinger . . .239 (1908, 2 Ch. 251). . 435 Casscls V. . . . 459 Chunmings v. . . 361 Hitcliman v. . . 247 Mackinnon ?'. . . 441 1^. Rhodes . . .321 Stiles, Be . . . . 492 Stirling v. Hurdott . . 248 Stoeks V. Dohson . . 37 Stoddart »'. rnion 'i'nist, Ld. 38 Stogdon V. Lee . . 549, 563 Levy V. . . . 602 Stokes, Brice r>. . . . 426 Evans v. . . . 330 V. Holden . . .102 Stone, Ex parte . . . 467 V. Burn . . . 389 Elmore v. . . 72, 73 PAGE Stone, Imperial Loan Co. v. 175 V. Marsh ... 55 Stone's Estate, Be . . 614 Stones V. Cooke . . . 578 Stonor V. Fowle . . . 230 Stonor's Trusts, Be . . 432 Stooke V. Tajdor . . . 257 Store}-, Be, Ex parte Popple- well . . . 629, 631 Stott V. Milne . . .427 Stoughton, Medina v. . . 594 Stoveld V. Hughes . . 73 Strafford (Lord), Byng v. . 402 Strang & Co. v. Scott & Co. 136 Strass V. Spillers & Bakers, Ld 311 Strathmore, Countess of, v. Bowes .... 545 Strawbridge, Souch v. . . 186 Stray, Ex parte . . 261, 264 Streatfield v. Halliday . . 462 Stretton, Nieholls v.. . 196 Stringer, Melville v. . . 636 Stringfield, Pugh v. . . 454 Strode v. Blackburnc . . 140 Strong, Be . . . . 229 V. Bird . . .258 Strousberg, Republic of Costa Rica V. Strugnell, Wilson v. Strutt, Deeks v. . ■ Galsworth}' v. Stuart, Be . V. Babington V. Burrowes Grey v. Stuart King, Hyanio v. . 251 . 192 . 36 . 214 . 428 . 413 . 490 . 431 190, 195, 212 Stubbins, Ex parte. Be Wil- kinson . . . .269 Stubbs, Be . . . .497 Hughes ('. . . . 441 V. Slater . . . 34 1 Stucley, Be . . 002, 608 Studds D. Watson . . 187 Studdy V. Beesty . . 208 Churchward v. . . 15() Sturge V. Starr . . 591 Sturgeon, Burton v. . . 581 Sturgis, Wek'hman v. . . 518 Styles V. (iuy . . . 426 Styward, Petty v. . . 455 Suckling. Donald i\ . 54, 58 Suffell ('. Bank of England . 178 Sully, Be, Ex parte Wallis . 112 Summers, Jir . . . 297 ■ i>. City Bank . . 556 Sumner, Johnston v. 574, 575 Ixx INDEX TO CASES CITED. PAGE 1 PAG E Sun Life, &c., Co., Saunders v. 390 Tasker v. Tasker . 53 5 Siiiibolf V. Alford 63 Tasmania, The 126 Supple, Cilniour v. 78 Tate V. Ful brook . 372, 374 Surman v. Wharton 568 V. Hilbert . 436, 482, 483 Sutton V. Buck . 22,58 1 Withington v. 255 V. Ennis 400 Tat ham v. Haslar 210 Fitch V. 256 V. Reeve 195 V. Sutton 603 Tatlock, Peel v. . 249 Svensden v. Wallace . 136 Tatter sail, Kirkpa trick V. 182 Swain, Re . 428 Taunton v. Morris 539—541 Swallow V. Binns . 414 & Co., Christie V. 38 Swan V. Steele 473 Tautz V. Archdale 245 Swan & Edgar, Ld., Bourne Taylor, Ex parte . 514 V. ... 383 Re (1901, 1 K. b". 744) 299 Swann v. Phillips 189 615 Re (1910, 1 K. B. 562) 290 Swans, The case of 154 V. Bowers . 197 Swayne v. Swayne 616 British Motor Syndi- Sweet V. Pym 67 cate V. . 361 Sweetapple v. Horlock 431 V. Cartwright 507 Sweeting, Bailey v. 84 ■ V. Chester . . 196 Swift V. -Jewsbury 189 ■ V. G. E. Ry. Co 81, 85 ■ ■ V. Pannell . 114 626 V. Haygarth 527 • Simmons v. . 78 V. Holland . 601 Swinbanks, Ex parte . 255 Lambert v. . 606 Swinburne, Craythorne v. 247 Leigh V. 144, 148 Swindell v. Bulkeley . 608 V. London & County • Cullwick V. . 143 Bank . 458 Swinton, Willoughby v. 238 V. Martindale 313 Swire, Cookson v. 623 V. Meads 546 Sworder, Castle v. 7 2, 82 Millar v. 369 Sydney Cove, The 130 • Peckham v. 437 Sylph, The . 133 V. Pugh 545 Sj'lvester, Scattergood v. 15 V. Roe 226 Symes, Balch v. . 66 Stooke V. 257 Long V. 491 V. Taylor 525 Symonds, Thompson v. 377 V. Turnbull . 322 Williams v. . 616 • Wallis V. 403 Sympson, Prance v. 182 Re Mason and 66 Syras, Richards v. 258 Stileman and Under wood, Re . 66,67 Taylor's Patent, Re 368 T. Teakle, Reid v. . Reneaux v. . 572 573 Taddy v. Sterious 593 Teal V. Auty 152 Taggart, Carter v. 400 , 540 Teale, Re . 293 Tagus, The . 130 Tebbs V. Carpenter 314 Tailby v. Official Receiver 99 , 100 Teesdale, Dickinson V. . 610 Tallerman, Coldstrom v. 636 Tegner, Stern v. . 110 Tamvaco v. Lucas 311 Tempest, Ex parte 296 Tankard, Re 294 V. Kelner 30 Tankerville, James Jones & V. Tempest 508 .Sons, Ld. V. . 147, 150 , 152 Temple, Hirachand Punam Tanner, Brown v. 135 chand v. . 255 V. Smart 600 Templeton v. Warrington 414 Tapfield v. Hillman . 99 Tench, Lloyd v. . 52 5, 527 Tappenden v. Burgess . 261 Tennaiit. Ex parte. R V. Randall . 197 Howard . ". 470 Tarling v. Baxter 78 Darley v. . 605 INDEX TO CASES CITED. Ixxi PAGE Teofani's Trade Mark, Re 385, 386 Tergeste, The . 63, 126, 130 Terrell, Willcock v. . . 392 Terry, London and Count}' Bank v. . . 259 Co Co Yates V. Teynhani (Lord) v. We Thacker, Drewry v. Thairlwall v. G. N. Ry Thames Iron Works Patent Derrick Co. Tharpe v. Stallwood Thatcher's Trusts, Re TheUuson, Hobson v. Theta, The . Thick, Balls v. . Thomas, Calvert v. V. Desanges . James v. V. Kelly Kennedy v. . Langley v. . V. Patent Lionitc V. Pritchard Roscorla v. . Sims V. Kingston & Co., Kings ton Miller & Co. v. Thomason v. Frere Thompson, Re V. Dominy . Button V. Farrant v. . V. (Gardiner . V. Harvey . Hill V. . V. Lacey V. Lack Montgomery t'. Norman v. . V. Simpson . Southport, &c., ing Co. V. V. Spiers V. Symonds . Thompson's Patent, Re Thompsons' Trusts, R Thomson v. Clanmorr • Kearley v. . V. Pettitt . Simpson v. . V. Thomson . Thorington, Sleech v. Thorley's Cattle Food Massam v. Thorne v. Heard . Tlinriu'loe c. Hill . Thornley, Pierce v 37, 252 ) . 410 496 Co! 2.55 . V. 63 518 416 108 133 30 636 292 237 101, 634 211 436 D. . 244 219 181. 594 434 605 ngs- 390 456 411 134 440 149 588 84 574 353 63 248 463 389 256 263 412 ink- 143 614 ,616 377 351 102 606 197 170 582 503 Co., 389 , 390 428 390 541 PAGE Thornley v. Thorulc>' . . 581 Thornton, Lunn v. " . 99, 100 Thorpe, Glynne v. . . 233 V. Jackson . . . 465 Williams v. . . (il4, 616 Thrcfall v. Borwick . . 63 Thrclfall v. Wilson . . 485 Thrustout d. Levick v. Coppin .... 485 Tliumblethorpe, Chapman v. 14 Thurlow, Re . . . 27() Cunynghame v. . .412 Thurso New Gas Co., Re . 244 Thurstan v. Nottingham, &c.. Building Society . 101,174 Thurston, Bailey v. . 199, 300 Thynne, Re . 29, 393, 396, 627 V. Shove . . .391 Tibbett, Morton v. . .81 Tibbltts, Darrell v. . . 308 Tidd V. Lister . . .540 TidsMcU V. Angerstein . . 306 Tilley v. Bowman . 588, 590 Timhrell, Spackman t'. . 114 Timmis, Re . . . .428 Timms, Smith v. . . . 272 Tippetts & NewbouM's Con- tract, Re . . . . 550 Tipping I'. Tipping . . 536 Tobias & Co., /?e. . . 298 Todd. Kx parte . . .295 Brady ?'. . . . 572 Kirk V. . . .166 V. Wilson . . .425 Toft V. Stevenson . . 605 Toleman, Re . . .521 Tolhurst V. Associated Port- land Cement Manufac- turers . . . 199, 201 Tomkinson, Balkis Consoli- dated Co. V. . . . 33S Tomlinson v. Broadsmith 472 r. Consf)lidatcd Crciiit Cpn 638 Tiinnies, Re . . . . 295 Toomer, Re, Ex parti' Hlai berg .... 624, 630 Toi)ham v. Duke of P..r(land 412 'l'o))|)intr. Ex parte . . 4(i6 Torkington r. -Magec 40, 199, 200 Tottenham, Royal Bank of Scotland v. ' . . . 205 Tower Assets Co., Beckett r. 96 Towidey. R. v. . . .154 Towiu'oc, Wiiihtnum r. . 469 Townscnd i". .larman . 194, 391 ('. Martin . . . 504 Re, Ex parte Parsons 95, 626 Ixxii INDEX TO CASES CITED. PAGE To^\'Ilsend (Lord) v. WynA- ham 535 Traders', &c., Co., Re . . 244 Tranter, Smart v. . . 538 Treasury, Lords of the, The Queen v. . . 399 • — — Solicitor to the, v. Lewis 483 Tredegar, &c., Co., Ld., Asch- erson v. . . . . 249 Tredwell, Dawes v. . .431 Trego V. Hunt . . .392 Tremayne v. Rashleigh 430, 580 Tremont, The . . .120 Trench, Be, Ex farte Bran- don 269 TrethoAvan, Re, Ex parte Tweedy . . . .625 Trevor, Ex parte, Re Burg- hardt . . . .272 Trevor-Garrick, Stevens v. . 559 Trimmer v. Danby . 400, 436 Tripp, Sibree v. . . . 257 Tritton, Re . . . 393, 396 Trollope, Kinnaird v. . . 255 — — V. Linton . . . 553 Trotter, Mackintosh v. . 142 Truefitt, Perry v. . . 383 Trneman v. Fenton . .182 Trufort, Re . . . 480, 522 Trustees of British Museum, Att.-Gen. v. . . .51 Tuck, Edwards v. . . 448 - — — V. Southern Counties Deposit Bank . . .76 Tucker, hi the goods of . 489 — Re . . . 469 Hilton V. . . 72, 96 V. Laing . . . 249 -— — Lyons v. . . . 632 Skipper v. . . .39 Tuer V. Turner . . . 543 Tugman v. Hopkins . . 547 Tullett V. Armstrong . 548, 549 Turcan, Re . . . 99, 433 Turnbull, i?e . . 562,567 Godfrey v. . . . 469 — Taylors. . . .322 Turner, Re, Ex parte Att- Mater . . . 625 ■ — — Re, Barker v. Ivimey 428 Chasemore v. . 182, 600 V. Hancock . . 425, 426 ■ — ■ — Kidson v. . . .183 V. Midland Ry. Co. . 601 V. Smith ... 38 TueTV. . . .543 ^_ I,. Turner (2 Amb. 776) 313 r. (4 Sim. 430) . 415 PAGE Turner v. Vaughan . .192 Wardw. ... 72 — V. Willis . . . 609 Wood v. . . .482 Turqiiand, Ex parte. Re Parker . 113,632 V. Board of Trade . 279 Turton v. Turton . . 390 Tussaud's Estate, Re . . 506 Tuther v. Caralampi . . 238 Tutin, Petch v. . . .98 T\veed}% Ex parte . . 625 Twentyman v. Twentyman . 581 Twigg''s Estate, Re . . 524 Twine, R. v. . . .30 Twyman, Coope v. . . 247 Twyne's case . . 115,623 Tyler v. Lake . . .547 Tyndall, Attornev-General v. 508 White V. ". . . 462 Tyne Improvement Commis- sioners, Arrow Shipping Co. u 25 Tyirell v. Paint on . 450, 513 U. Underwood v. Barker . 194, 196 V. Underwood . . 256 Union, The . . . .130 LTnion Bank of London, Ponsford v. . . 268, 292 Union Bank of Manchester, Ex parte .... 617 Union Credit Bank v. Mersey Docks and Harbour Board 54 Union Marine Insurance Co. , Spence v. . . . .49 Union Trust, Ld., Stoddart &c.. United Telephone Co. Harrison & Co. LTpfill V. Wright . Upjohn, Ecclesiastical Conimrs. v. Upmann v. Forrester Upshaw, Skinner v. Usborne, Economic, Society v. Jenkyns v. . Usher, Davis v. . Utopia, The Vagliano, Bank of England v. Valentini v. Canali \'aliant. The 38 352 196 Addenda 383 62 226 89 638 126 591 174 132 INDEX TO CASES CITED. Ixxiii Vallance, Re . . . Vallc}' Printing Co., Mansell V. . . . . . Van V. Barnett . Van(len})crg v. Palmer Vandenborgh v. Spooncr \'ande2)iitt, Wiseman v. Vandergiuht v. De Blac- quiere .... Vanderhorst, Sliewen v. Van der Leeuw's Trade Mark, Re. Van rielder's Patents, Re Van (iheluive u. Nerinckx . Van Ingen, Drunimond v. . Van Mieroj), Pillans v. . \'aii.sittart, Re . . 294 I'.-V^ansittart Vardill, Doe d. Birtw histle i\ Vardon's Trusts, Re Varley v. VVhipp . Vaughan, (Jrant v. Jenkyn v. . Turner v. . . . Walmsk\y v. Vaughan-Sherrin, &(■., Hamilton v. Vautin, Re . Va\\(lry, Cartwright v. Veal V. Veal Venables v. Baring ■ Stephens v. . Venn, Re . . . Vera Cruz (No. 2), The Venture, The Vere v. Ashby Veritas, The Verity, Wilkinson v. Co., 511 Vernon, Davies v. V. Smith Verrell's Contract, Re Vil)art V. Coles Vicary, Anderson v. Vick, Eldesten v. Vickers, Re . & Co. V. Siddeli Victor V. Victor . . 129 20 (if), 139 o'jO, 199. 289, Victoria, The Victoria Insurance Co., King 170, Re Victoria Steamboats, Viditz V. O'Hagan Villars, Norman v. Vilmont v. Bentley Vinall V. De Pass Vinden v. Hughes Vine, E.r farie liA\. 15, 202, 1()8, PAGE 192 309 420 70 83 89 578 009 380 350 227 595 180 , 295 585 480 554 78 34 434 192 409 174 273 509 482 344 38 513 133 120 473 130 597 141 309 494 220 155 383 500 308 219, 578 132 171 345 554 580 590 252 20() 301 PAGE Viner v. Francis . 512 Vine}- V. Chaplin . 255 Vint, Windhill Local Board V. '. . . . . 192 Von Hafen, Re . 487 Voss, Rd . . . . 555 \'ron Colliery Co., Re . 244 Vulliamy v. Noble 409 w. W., H.V.. Wackerbarth, Mollett v. Wadsworth, Crosl)y ii Wain y. Warlters Wainsfoid, Warner v. Waite, Jones v. . V. Morland . Wakefield v. Bro\\n V. Newbon . Palmer v. Saunders v. . W' alburn v. Ingilby \Vales, Leighton v. Walford, Dyke v. V. Walford . Walker, Re . Allcard i'. V. Bradford Old B Cheavin v. . V. Clements . Dibb V. Levy V. V. Matthews V. Mottram . Pendleburj- v. v. Perkins . — ■ — Roberts v. . Societe Gencrale Paris V. . 4:v ank 24 de 340, 017 Woodmeston v. ^Vallace v. Auldjo V. Evcrshed . Svcndsen v. . V. Woodgate Wallas, Re . Waller, Adams v. Wallington, Jackson v. Sirdar Rubber Co Wallis, Re (1902, 1 K. B. 719) Re, Ex parte Sully Binnington i'. V. Day 584 178 152 184 519 584 578 454 05 544 184 327 214 510 498 448 , 580 40, 199 383 (i09 004 391 589 392 ,205 192 102 338, 341, 618 548 539 345 130 03 581 009 491 351 37, 015 112 192 194 Ixxiv INDEX TO CASES CITED. PAGE , PAGE Wallis V. Hoclsoii . 526 Wasdale, Re . . . 613 V. London and South- Wason, Walsh v. . 539 western Ry. Co. . 64 Waterer v. Waterer 455 V. Pratt 596 Waterfall v. Pennistone 625 V. Smith 214- -216 AVaterhouse, Close v. . 64 V. Taylor 403 W'aterpark, Young v. . 408 Walmsley v. Milne 143 Waters, Ex parte. Re Hoyle 289 V. Vaughan . 409 ■ Bevan v. . . . 63 Walah, Gale v. 208 Waterw orth, Ripley v. 323 V. Walsh 527 Wathen, Pelly v. . . 6 5, 66 V. Wason 539 Watkins, Ex parte. Re Walter v. Everard 174 Couston 113 V. Hodge 482 ■ V. Evans ()36 V. James 255 North American Land, V. Lane 374 &c., Co. V. 611 V. Macdonald 205 V. Watkins . 581 V. Smith 59 Watkinson v. Hudson . 458 Walters, Edwards v. 258 259 Watmough's Trusts, In re . 509 ■ Hunter v. 591 Watson, Re, Ex parte John- ■ V. Walters . 226 ston . .109 ,230 Walton, Re, Ex parte Hudson 204 Re, Ex parte Official Hitchman v. 143 149 Receiver 96 V. Lavator . 43, 363 457 V. HoUiday . 289 Warburton v. Hill 321 Jackson v. . 164 V. Sand3's 421 422 Jessoji V. . 525 Ward, Re . . . 283 Keightley v. 454 Sainton v. . 406 Laidlaw & Co. v. Pott . 366 V. Beck 120 • V. Mid Wales Ry. Co. . 38 Dormer v. . 582 V. Parker 239 V. Duncombe 38, 613 615 Studds V. . . . 187 V. Eyre 245 Watt V. Watt 547 V. Lumley . 258 Watts, Re . 507 Merriman v. 260 V. Driscoll . 460 V. National Bank of V. Girdlestone 426 New Zealand 248 Hackney Furnishing V. Skip 72 Co. V. . 104 V. Turner 72 V. Je fiery es . 321 V. Yates 540 V. Porter 321 Lock & Co. V. Long 375 Waugh V. Carver . . 468 473 Warde, Bristow v. 410 V. Cope 601 Dudley v. 149 Way V. Basset 465 Warden v. Ashburner . 399 Way s Trusts, Re 37, 437 439 Wardroper v. Cutfield . 400 Wa\'mark, Kramer 2>. . 171 Ware, Re, Ex parte Drake 15, Weal I V. Rice 506 93 588 Weardale, &c., Co. v. Hodson 637 Waring v. Lee 410 Wearing, Butk»r v. 293 Warlters, Wain v. 184 Weatherby, Brown v. . 465 Warmoll, Lacons v. 220 601 Webb V. Fox 300 Warne v. Seebohm 369 V. Hewitt . . 248 256 Warner, Mare v. . 265 V. Needham 517 ■ V. Wainsford 519 V. Sadler 403 Warrington, Templeton 414 V. Stanton . 251 Warrior, The 131 ■ Tevnham (Lord) v. 410 W^arwick, Ball v. . 169 Webb's Policy, i?e 014 (Countess of), Edwards Webster, Ex parte, Re Morris 631 V. . 399 Re .... 253 V. Richardson 460 V. Bosanquet 214 Warwicke v. Noakes . 255 Curl V. . . . 392 INDEX TO CASES CITED. Ixxv PAGE PAGE Webster, Kinnaird v. . 2()0 Westmoreland, &c., Co. V. V. Webster . 469 Fielden . 340 Wedinore, Rr . 505 Westmorland, Moi-el V. 464 573 Weekes, Edwards v. 258 Weston, Re . 482 585 Weetou V. Woodcock . 144 Foster v. 245 ^Ve,ii,<; Prosser v. Evans 22G ,460 Stephens v. . 65 W'emielin, Rankin v. . 482 Weston's case 338 Weightman, Wood v. . 499 Westropp's Divorce Bill 577 Weiner v. Gill 79 Westrup V. Great Yarmouth, V. Harris 23 &c., Co. . 131 Weinigcr's Policy, Be . 616 \\'estzinthus. Re . 90 Welch, Softla\\- v. 563 Wetherell v. Julius 168 Welchnian, Re . . , 539 — — V. Langston . 454 V. Sturgis 518 W. & G. Ducros, Ld. ,Re 385 Weld, Craves v. . 151 W. H. Smith & Sons Hanfs- Weldon, Astley v. 215 taeiigl V. . 372 V. de Bathe . 562 Whale V. Booth . 494 V. Gould 64 Whaley, Re . 149 V. Weldon . 582 Whalley, Carter v. 469 V. Winslow . 562 Wharton v. Nay lor 104 (I), 151 Wellesley v. Wellesley . 433 Ridgw aj- V. . 187 Wellock V. (^onstantine 53 Surman v. . 568 Wells, Re ... . 487 Wheatley t'. Silkstone and V. Abraham . 55 Haigh Moor Coal Gregg V. . . . 25 Co. 345 V. Horton 186 V. Smithers . 472 474 V. Malbon . 581 Wheeler, Re 563, 610 Welton V. Satfery . :535 336 Bushell i\ . 81 Wenborn & Co., Re 244 Doc (I. Staee ?'. 486 Wendt, Kingston v. 136 Herd man i'. 204 Wcnliani, Re . . . 609 Palmer v. 412 Wen man i\ Lyon & Co. 626 R. V. . 351 W'ensley, Re 521 Wheeler's Settlemen , Re 267 560 Werner Motors, Ld. v. A. W. Wheelhouse V. Ladbrooke 238 Carnage, Ld. 380 Wheelwright, Robinson v 548 West, Re ... . 484 Wheldale v. Partridg e . 419 V. Berney 411 Wheljidale's rase . 178 Hebdon ?;. . 305 Whicker v. Hume 480 V. Jleid 611) Wiiinery. Minnit v. 473 West London Commercial Whiimev. Colonial Bank i 29, Hank, AV .... 224 43, 254, 341, 343, 392 617 West of England, t*tc., Co. r. Whipp, \'arlev v. 78 Isaacs .... 308 Whitaker, y^'"(34 Ch. D. 2 27) 432 West Riding Union P.ank- /?e(42Ch. D. 119) 209, 437 ing Co., I.,(l., Hirst r. 189 Re{Um, 1 Ch. 9) 223, West Yoi'kshirc Darracq 239 243 Agency, lA. r. Coleridge 2<)3 /?e(1904, 1 Ch. 299) 223. AVestacott, l*a])e r. 255 244 302 Westbrook, Kemp v. . 94 Lea V. . 214 216 AV'estern Canada, &c., Co., Pain V. 58 Mears v. .... 256 Whitbv V. Mitchell 404 Wcstlake v. Adams 181 White^ Re . 343 West land, Wiseman v. 140 Acton V. 549 \\'es(meath (Marquis of) Bennett v. . 257 Hindley v. 584 Blake v. 248 Westminster Fire Oflice r. Clossman v. . 16 Glasgow, &e.. Society 309 V. Furness . 04 Westmoreland, The 126 V. Garden . 85 590 Ixxvi INDEX TO CASES CITED. PAGE 1 PAGE White, London & Yorkshire Wilkinson v. Adam 609 510 Bank v. . 9(5 ■ V. Byers 257 Saunders v. . . 037 V. Candlish . 255 Simonds v. . . 130 V. Evans 83 — — V. Spettiguc . 586 V. Gibson 577 581 V. Stennings . 251 V. Henderson . 465 V. Tyndall . . 402 V. King . 23 Yates V. . 170 Lucas V. 255 Whitehead, Be . . 505 V. Verity 20 597 — ■ — V. Pahiaer . 518, 521 AVilks, Re . 458 AMiitehorn v. Davison . 590 \\'illc3- V. Hucks . 294 AVhitehouse, Ex fart e. Re William Brandt's Sons & Co. General Horticu Itural V. Dunlop Rubber Co., Ld. 40, Co. . . 252 438 & Co., Re . . 340 William Edge & Sons V. Whitelej' v. Edwards . 503 William Niccoll & S ons 389 Learoyd v. . . 426 William F. SafEard, The 130 Rogers v. . 252 William Niccoll & Sons, Wil- Whiteman, Hall v. . 637 liam Edge & Sons v. . 389 V. Sadler . 191 William Pickersgill & Sons, Whitfield V. Bew it . 153 Ld. V. London & Provincial V. Brand . 113 &c., Insurance Co., Ld 310 ,311 Whitfield" s Bedsteads, Re . 385 William Watson & Co., Re . 112 AVhitmore, Reeve v. . 100 William Whiteley, Ld., Philli- Whittakcr v. Kershaw . 498 part V. . . . 385 A\'hittem v. Sa^^yer . 539 Williams, Re 235 Whittingham, In re . 579 Re, Ex parte Pearce 636 Whittingstall v. Grovei . 465 Re, Jones v. Williams . 241, Whittle V. Henning . 542 243 • Matthews v. . 550 i2e,Williams v. Williams 222 Whitton, Squire v. . 248 V. Arkle 514 Wick, &c., Co., Palmei V. . 461 V. Barton 23 592 Wickham, Xenos v. . 178 V. Bayley 192 Wiel, Saunders v. . 380 Black V. 120 Wigan V. English & Sc ottish V. Burgess . 232 Law Life Assurance Assn. 181 Colonial Bank v. . 344 Wightman v. Townroe . 469 Courtenay v. 008 610 Wigram v. Buckley . 613 Evans v. 227 • Hallett V. ." . 136 Henderson v. 591 Wilbraham v. Snow . 54 V. Hensha\\' . 452 Wilcock, Pearson v. . 301 V. Hensman 458 Wilcox, Kruger v. . 67 V. Keats 468 Wilcoxon, Re . 296 V. Lake 185 187 AVild, Re . . 025 V. Manders . 22,57 V. Clark son . . 237 V. Mercier . 431 556 V. Southwood . 293 Mercier v. . 556 Wilde, Burchell v. . 391 V. Mersey Docks < md Wilder v. Pigott . . 554 Harbour Board 163 Wilding V. Richards . 441 V. Protheroe 200 Wildman, Butler v. . 136 V. Rawlinson 200 V. Wildman . 42, 314 V. Symonds . 616 Wiles V. Gresham . 418 V. Thorpe 014 616 Wilflete V. Cassyn . 27 V. Williams . 406 Wilkins, Bristead v. . 322 — — and Duchess of New- V. Bromhead . 77 castle's Contract, Re 138 Wilkinson, Ex furte , Re Williams' Settlement, Re 431 Berry . . 272 Williamson, Chamberlain V. 165 ■ Re, Ex parte Stu bbins 269 Davey v. 27 111 INDEX TO CASES CITED. Ixxvii PAGE PAGE Williamson, Roots v. 338, 340, Winan's Patent, Re 354 617 618 A\'inch V. Kceley . 35, 37 Willing V. Baine . 452 AVinchelsca (Earl of) Dering Willis, Re . 628 V 247 461 V. Black 433 Winder, Ex parte. Re Win- V. De Castro 463 stanley 272 V. Hiscox 426 427 AVindhill Local Board v. Vint 192 V. Palmer . 129 Windsor, Lincoln v. 425 Turner v. 609 Windus, Hough v. 109 Willock, Noble v. 546 558 Winfield v. Boothrovd 20 ■ — — V. Terrell 392 Wingfield & Blew, lie . 574 579 Willomatt, Cooper v. 59 Ex parte, Re Florence 113 Willott, Staniland v. 483 Winkfield, The 22, 48, 51, 61, 62 Willoughby v. S\\inton 238 Winn V. Ingilby . 150 Willows, Spirett v. 539 Winnall, Rudge v. 150 Wills, De Greuchy v. 556 Winslow, A^'cldon v. 562 Evans v. 229 Winstanley, Re . 272 Willson V. Love . 215 Winter v. Winter 73 V. Smyth 579 Winterton, How v. 428 Wilmer v. Currcy 461 Wise V. Metcalf . 166 ^^'ilmot V. Alton . 199 201 A\'iseman v. Vandeputt 89 Liddlow V. . 574 V. \\'estland 140 Reed v. 115 116 Witherby v. Rackhain . 543 Wilson, Re, Ex parte Vii le 168 301 Withington v. Tate 255 Re Alexander v. ( Jalder 497 \\'itt. Re . . . 64 Bnggs V. . 609 V. Amis 482 V. Brownsmith 504 V. Banner . (i34 V. Carnley . 584 Wittman v. Oppenheim 383 V. Coxwell . 234 Woadson v. Na^^■ton . 51 V. Ford 574 W'odehouse, Ecclesiastical V. Glossop . 574 575 Commissioners v. 166 V. Hood 65 \\'olfcrstan, Jcrvis v. . 1 15 498 V. KcUand . 345 Wolmershausen v. Gullick . 247, Liverpool Marine Credit 248 Co. V. 135 Wolsey, Abbott v. 81 Mallott V. . 439 Wolverhampton & Stafford- ■ Paj'ne v. 59 shire Banking Co., Ex parte 192 V. Piggott . 408 409 Womb\\ell v. Hanrott . 408 409 R-eg. V. 268 Ryder v. 174 Singer Manufac uring Woraersley, Re . 497 Co. V. . 383 390 ^Vood, Re . 201 V. Strugnell . 192 Re, Ex parte Woolfe 635 Threlfallt^. . 485 Besant v. 584 585 Todd V. 425 Climie v. 143 V. Wilson (L. R. 1 4Eq'. V. Dixie 116 32) 135 V. Dunn 253 V. (2 Keen, 249) 426 Gomley v. . 425 V. (1 H.L. C . 538) 584 Gough V. 25 ^i;. — (1911, 1 K. B. V. Penoyrc . 498 327) . 488 V. Rowcliffe . 20 & Co. v. Balcarres &co! 461 V. Turner 482 Sir M. Mar van's E state, V. Weightinan 499 Re . . ■ . (i46 V. Wood 251 Wilton V. Colvin . 431 Wood's Trade Mark, Re 383 Winans i'. Att.-Cien. (1 304, ' Woodcock, Wecton v. . 144 A. C. 28 7) . 481 ^^'oodgate, Acton v. 441 V. (li)lO, A. C. 27) 344, \A'allace v. . 63 493 Woodham Smith v. Edwards 230 Ixxviii INDEX TO CASES CITED. PAGE 1 p AGE Woodin, Be . . 416 ' Wynne, Secretarj' of State for Woodman, Bo«'yer v. . . 605 War V. . . . 104 (I) Woodmeston v. Walker 548 Wythes, Be . 140 Woodward, Simmons v , 637 Woolf V. Hamilton . 212 Leschalles v. . 144 X. Woolfe, Ex parte . . 635 V. Automatic, &j Co., Xenos V. Wickham 178 Ld. . . 360 Woolfit, Cooper v. . 150 Woolley V. Broad . 381 Y. Woolven, Breton v. . 70 Worcester, Be . 617 Yates, Be . 143, 148, 627 629 Worrall, Att.-Gen. v. . 444 Bridge v. 452 Worrell v. Johnson 66 Dicks V. 384 Worsley, Be . 267 Dixon V. . . 78, 86, 89 Worthington v. Curtis . 306 — Elliott V. . 106 — & Co., Ld. V. Abb ott . 115 Norton v. 252 Wotherspoon v. Currie . 390 Sherrington v. 537 Wragg, Ld., Be . 335, 336 — — V. Terry 37 252 Wren v. Bradley . . 584 Ward V. 540 ■ V. Holt . 596 V. White 170 Wrench, Hyde v. . . 176 & Kellett's Patent, Be 350 Wrey, Henty v. . . 412 Yea V. Field 138 Wride v. Clarke . . 221 Yeatman v. Homberger 389 Wright, Baines v. . 264 Yeoman i'. Bradshaw . 240 Cook V. . 181 Young, Be . 471 C4owan v. . 232 V. Axtell 468 V. Leigh . 166 Bolland v. . 321 Lomas v. . 239 V. Fernic 351 V. Morley . 541 Classpoole v. 588 Murgatroyd v. . 109 Greer v. 65 Upfell V. . . 196 Halesham v. 478 & Butler, John I- arper V. Hichens . 51 & Co. V. . . 380 Hunter v. 115 Wright's Trust, Be . 65 V. Kitchin . 40 Wuterich's Patent, Be . 350 • Lee V. . 418 Wyatt, Roberts v. . 54 V. Rosenthal 351 W'ych, Be . . 425 V. Smith 481 Wylie, Be . . 558 V. Waterpark 408 ■ Enohin v. . . 522 Wyn, Squib v. . 36 Wyndham, Townsend Lord) . 535 . 248 Z. v. . Wynn, Green v. . Zeta, The 126 Wynne, Hughes v. . 237, Zodiac, The 128 610 Zwinger v. Samuda 74 INDEX TO YEAK-BOOKS CITED. 21 Eclw. I. 137 (assigns) 21 & 22 Eclw. I. 467 (action for stolen goods) . 30 & 31 Edw. I. 508, 512—514, 526 (forfeit on theft) 32 & 33 Edw. I. 54 (replevin) .... 16 Edw. II. 490 (trespass de bonis asportatis) . (detinue) .... 2 Edw. III. 2, pi. 5 (detinue against the tinder of goods 8 Edw. III. 10, pi. 30 (property in thief) . 24 Edw. 111. 41a, pi. 22 (detinue) . 43 Edw. III. 2!». pi. 11 (detinue) 44 Edw. 111. 33, 1)1. 38 (tre.spass on the case) . 48 Edw. III. 20, ])1. 8 (actions by bailor and bailee) 22 Ass., pi. 37 (choses in possession and in action) 27 Ass., pi. t)4 (property in trespasser) pi. »)!) (appeal of theft) 2 Hen. IV. 12, pi. 51 (trespass de bonis asportatin) 7 Hen. IV. 14, pi. 18 (bailee's obligation) 28b, pi. 5 (replevin) 11 Hen. IV. 17, pi. 39 (bailees action of replevin) 24b (bailee's action of trespass) 46b, pi. 26 (detinue) 12 Hen. IV. 18, pi. 12 (bailee's action of detinue) 9 Hen. V. 14, pi. 22 (detinue) .... 3 Hen. VI. 55b, 56a (animals /^rce natura) 9 Hen. VI. 6, pi. ()4 (chose in action) 45, ])1. 28 (market overt) 64, pi. 17 (power of attorney) 19 Hen. VI. 65, pi. 5 (remedies of dispossessed owni 32 Hen. VI. 1, pi. 3 (peaieable retaking ; market ov 33 Hen. VI. 1, pi. 3 (bailee's obligation) . 5, pi. 15 (trespass do bonis asporfati'i) (market overt) . . 26, pi. 12 (detinue against the finder of 34 Hen. VI. 30, pi. 15 (i)o\\er of attorney) 37 Hen. VI. 13, pi. 3 (power of attorney) 2 Edw. IV. 5, pi. 9 (trespass ; bailor's action) . 16, j)l. 8 (remedies of dispossessed owner) 5 Edw. I\'. 8, pi. 22 (chose in at^tion) 7 Edw. IX. 20, pi. 21 (grant of chattels) . 10 Edw. I\'. 18, pi. 23 (sale of goods) 12 Edw. IV. 13, pi. 10 (trover) 13 Edw. IV. 3, pi. 7 (action of theft) 17 Edw. IV. 1, pi. 2 (sale of goods) . 18 Edw. IV. 21, pi. 1 (sale of goods) 21 Edw. IV'. 74, pi. 6 (trespass de bonis asportatis) r) ert) good 11, PAGE 33 8 9 14 13 16 16 12 16 16 179 11,22 28 12 8 12 59 14 22,48 22 16 22 16 154 28, 29 15 35 14 15 59 13 15 16 35 35 22 14 31 75 70 17 7 70 70 13 13, Ixxx INDEX TO YEAR-BOOKS CITED. 22 Edw. IV. 10, pi. 29 (hirer's possession) 2 Ric. III. 14, pi. 39 (trover) . 2 Hen. VII. 11, pi. 9 (bailee's obligation). 4 Hen. VII. 5, pi. 1 (action of theft) (trespass dc bonis asportatis 5 Hen. VII. 15, 16, pi. 6 (change in nature of goods) 6 Hen. VII. 7, pi. 4 (remedies of dispossessed owner) 9, pi. 4 (detinue) . 10 Hen. VII. 7, pi. 14 (detinue) 13 Hen. VII. 10, pi. 11 (taker of goods) . 14 Hen. VII. 12, pi. 22 (remedies of dispossessed o\v 15 Hen. VII. 2, pi. 3 (power of attorney) . 16 Hen. VII. 3a, pi. 7 (trespass ; bailor's action) 20 Hen. VII. 1, pi. 1 (distress) .... 21 Hen. VII. 14b, pi. 23 (bailee's possession) . 39, pi. 49 (trespass ; bailor's action) 12 Hen. VIII. 10b (taker of goods) . P.\GE 23 17 59 7 13 25, 26 14 16 16 51 14 35 13, 22 13 48 13,22 . 51 INDEX TO STATUTES CITED. 13 Edw. I. c. 1 [De Bonis) c. 18 {fdeyit) . c. 19 (intestates) 18 Edw. I. c. 1 (Quia Emptores) 1 Edw. III. St. 2, c. 14 (maintenance) 4 Edw. III. c. 7 (action by executors) 25 Edw. III. c. 5 (executors) . 31 Edw. III. c. 11 (administrator) . 1 Ric. II. c. 14 (maintenance) 7 Ric. II. c. 15 (maintenance) 21 Hen. VIII. c. 5 (next of kin) c. 11 (restitution of stolen 27 Hen. VIII. c. 10 (Statute of Uses) 32 Hen. VIII. c. 1 (wills) . c. 9 (maintenance) c. 37 (arrears of rent) 34 & 35 Hen. VIII. c. 4 (bankruptcy) 37 Hen. VIII. c. 9 (interest) . 2 & 3 Phil. & Mary, c. 7 (stolen horses) 13 Eliz. c. 5 (gifts for defrauding creditor c. 7 (bankrupts) . 14 Eliz. c. 11,8. 18 (dilapidations) . 27 Eliz. c. 4 (voluntary settlement) . 31 Eliz. c. 12 (stolen horses) . 43 Eliz. c. 2 (distress) 1 Jac. I. c. 15 (bankruptcy) . 21 Jac. I. c. 3 (patents) . c. 16 (Statute of Limitations) good? . 3, 520, 85, 147, 183, 188, c. 19 (bankruptcy) . 12 Car. II. c. 24 (wills) / . 17 Car. II. c. 8 (judgment after death) 22 & 23 Car. II. c. 10 (di.stribution) . 29 Car. II. c. 3 (Statute of Frauds) . s. 4 (contract in wTiting) s. 5 (will of real estate) s. 7 (trusts) 8. 9 (trusts) s. 16 (writ of fieri faciim) s. 17 (sale of goods) . as. 19 — 21 (nuncupative testament) . s. 22 (revocation of will of personal estate) s. 23 (soldiers and marines) s. 25 (husband) ..... I Jac. II. c. 17 (distribution) 3, W.P.P. / 103, 11 206, 2( 26, 182 266, 268, . 347, 188,259, 597- 112. PAGE . 313 . 107 . 516 . 2, 33 . 35 . 163 . 162 3, 517 . 35 . 35 . 517 . 10 139, 397 2 . 35 . 538 266, 279 . 245 15, 589 434, 624 279, 287 . 167 . 441 15, 589 . 106 269, 271 348, 352 428.461, 600, ()07 219, 266 2 . 171 523, 525 69 433, 499 . 478 . 27 97, 438 . 108 80, 81, 147, 317, 342 . 477 . 478 . 479 3, 524 523, 525 Ixxxii INDEX TO STATUTES CITED. 2 Will. & Mary, sess. 1, c. 5, ss. 2, 3 (distress for rent) 1) notes) 4 & 5 Will. & Mary, e. 2 (custom of York) 5 & G Will. & Mary, c. 20 (incorporated companies) 7 & 8 Will. III. c.'38 (custom of Wales) 8 & 9 Will. III. c. 11 (judgments) . . c. 20 (stock in Bank of England 9 & 10 Will. III. c. 44 (East India shares) 2 & 3 Anne, c. 5 (custom of York) . 3 & 4 Anne, c. 8 [c. 9 in RufiheadJ (promissory 4 Anne, c. 16 (nuncupative testaments) c. 17 (bankruptcy) 4 & 5 Anne, c. 2 (bail bonds) . c. 3 (joint debtors) c. 10 (bond debts) 7 Anne c. 12 (distress) 7 Anne, c. 25 (promissory note) 8 Anne, c. 18 (landlord's rent) . c. 19 (copyright) 9 Anne, c. 14 (money won at play) . 1 Geo. I. Stat. 2, c. 19 (stock) . 6 Geo. I. c. 18 (Royal Exchange and London Ass. Corporation) 7 Geo. I. c. 31 (bankrupts) 11 Geo. I. c. 18 (custom of London) 2 Geo. XL c. 22 (set-off) .... c. 25 (larceny of securities) 4 Geo. 11. c. 28 (rent seek) 5 Geo. II. c. 30 (bankrupts) 8 Geo. II. c. 13 (cop3'right in prints, &c.) c. 24 (set-off) .... 9 Geo. II. c. 32 (stamps) .... c. 36 (mortmain) 11 Geo. II. c. 19 (replevin bonds) 17 Geo. II. c. 38 (parish debt) . 19 Geo. II. c. 37 (marine insurance) 4 Geo. III. c. 33 (bankrupts) . 7 Geo. III. c. 38 (copyright in prints) 14 Geo. III. c. 48 (life insurance) 0. 78 (Metropolitan Building Act) 17 Geo. III. c. 57 (copyright in prints, &c.) 36 Geo. III. c. 52 (legacy duty) 38 Geo. III. c. 87 (infant and absent executors 39 & 40 Geo. III. c. 98 (accumulation) . 46 Geo. III. c. 135 (bankruptcy) 49 Geo. III. c. 121 (bankruptcy) 53 Geo. III. c. 159 (limitation of shipowner's liability) 54 Geo. III. c. 56 (cojiyright in sculptures, &c 55 Geo. III. c. 184 (stamps) 56 Geo. III. c. 50 (seizure of goods) c. 60 (unclaimed dividends) c. 137 (bankruptcy) 292 59 Geo. III. c. 46 (appeal of larceny) ..... 10 3 Geo. IV. c. 39 (A\arrants of attorney and cognovits) . . 232 5 Geo. IV. c. 98 (bankruptcy) 266 6 Geo. IV. c. 16 (bankruptcV) . 112, 182, 219, 254, 258, 261, 266, 268, 269, 270, 271, 287, 288, 289, 291, 292, 296, 406, 461 c. 91 (public officer) 330 PAGE . 67, 104, 105 . 476 . 326 . 476 . 238 42, 43, 326 42, 326 . 476 34, 201, 204 . 477 . 258 38 '. 600, 607 . 237, 256 104 (I) 34, 201, 204 . 107 43, 369 . 211 42, 44, 315, 323 326 291 . 476 . 257 . 42 . 105 258, 279, 296 . 370, 371 . 257 . 102 . 507 38, 104 (u) . 240 . 195, 305 . 268, 271 . 370 . 191, 305 . 309 . 370 483, 500, 503 . 484, 520 . 405 . 258, 292 287, 291, 292 . 127 370, 371, 380 492, 493, 500—502, 527 151 612 INDEX TO STATUTES CITED. Ixxxiii PAQB 7 Geo. IV. c. 6 (bills and notes) 203 c. 40 (banking companies) .... 330, 331 7 & 8 Geo. IV. c. 28 (forfeiture) 103 c. 29 (stolen goods) 10, 24 c. 53 (excise) ....... 26 9 Geo. IV. c. 14 (written contracts) . . 80, 182, 188, 189, 601, 607, 009 c. 65 (bank note) 203 11 Geo. IV. & 1 Will. IV. c. 20 (seamen's \vills) . . .479 c. 38 (insolvency) .... 267 c. 40 (executors trustees of residue) . 513 c. 46 (illusory appointments) . . 407 c. 68 (Carriers Act) .... 61 1 & 2 Will. IV. c. 32 (Game Act) 155—157 c. 56 (bankruptcy court) . . .112, 254, 279 2 Will. IV. c. 39 (procedure) 18 3 & 4 Will IV. c. 15 (copyright in dramatic works) . . 370 c. 27 (limitations) . 244 (b), 428, 598, 601, 602 605, 607, 608 c. 42 (limitations) . 163, 165, 245, 428, 598, 604, 606, 607 s. 13 (wager of law) ..... 18 c. 74 (fines and recoveries) .... 543 c. 98 (bills and notes) 256 c. 104 (Administration of Estates Act, 1833) . 221 c. 105 (dower) 505 4 & 5 Will. IV. 0. 22 (apportionment of income) . . . 399 c. 94 (public officer) 330 5 & 6 Will. IV. 0. 41 securities for illegal consideration) . 211, 212 c. 50 (distress) 106 G & 7 Will. IV. c. 71 (cUstress) 105 7 Will. IV. & 1 Vict. c. 26 (wills) . 323, 402, 406, 407, 476—479, 490, 511, 512 c. 73 (public officer) . . . .330 1 & 2 Vict. c. 96 (banking comi)aniea) ..... 330 c. 110 (insolvent debtors) . . . 19,267,271 s. 12 (seizure of notes and securities) . 107, 251, 434 ss. 14, 15 (charging stock) 321, 322, 325, 343, 434 s. 16 (imprisonment) ..... 228 s. 17 (interest on judgment debt) . . 226 2 & 3 Vict. cc. 11, 29 (bankruptcy) 292 c. 71 (unclaimed stolen goods) .... 26 3 & 4 Vict. c. 65 (admiralty jurisdiction) . . . 131, 132 c. 82 (stock judgments) . . . . .321, 434 c. Ill (banking companies) ..... 330 5 Vict. c. 5 (orders affecting stock) 319,320 5 & 6 Vict. c. 45 (copyright) , . .42, 43, 369, 370, 372, 375 c. 79 (stam])s on probates) 492 c. 85 (banking companies) ..... 330 c. 116 (insolvency) 267 c. 122 (bankruptcy) . . 112,182,296,456,461 6 & 7 Vict. 0. 40 (distress) ' 104 (l) c. 66 (index to warrants of attorney) . . . 232 7 & 8 Vict. c. 12 (international copyright) .... 370 c. 32 (bank notes) . " 203 c. 66 (aliens) 101 /2 Ixxxiv INDEX TO STATUTES CITED. 7 & 8 Vict. c. 70 (arrangements between debtors and creditors) 262 c. 76 (transfer of property) ..... 392 c. 96 (insolvency) . . . 107, 228, 267, 270, 272 331 c. 113 (banking companies) . . 331 8 & 9 Vict. c. 16 (Companies Clauses Consolidation Act) 42, 44, 328 3 29,342,618 c. 18 (lands clauses consolidation) . . 328 c. 20 (railway clauses consolidation) . 64 c. 37 (legal tender) . 256 c. 62 (unclaimed dividends) . . 612 0. 76 (legacy duty) 483,500 c. 97 (stock) . 322 c. 106 (real property) . 392 c. 109 (gaming and wagering) . 195 c. 127 (execution) .... 111,228 9 & 10 Vict. c. 93 (death by accident, compensation ) 163, 164 c. 95 (small debts) . 228 10 & 11 Vict. c. 15 (distress) .... 104 (I) 0. 17 (distress) .... 104 (I) c. 78 (joint stock companies) . 331 c. 83 (aliens) .... . 101 c. 95 (copyright in colonies) . 370 c. 96 (Trustee Relief Act) . . 429 c. 102 (bankruptcy and insolvency) . 267 11 & 12 Vict. c. 43 (distress) .... . 106 12 & 13 Vict. c. 14 (distress for rates) . 106 c. 74 (trustees' relief) . . 429 c. 106 (bankruptcy) . . 266 ss. 38 — 45 (official assignee) . 279 s. 66 (who traders) . . 268 ss. 67 — 69 (acts of bankruptcy) 261, 269 s. 70 (declaration) . . 270 s. 72 (judgment debt) . 271 s. 76 (petition for arrangement ) . 270 s. 93 (petition against self) . 270 s. 102 (official assignee) . . 279 s. 125 (reputed ownership) . 112 s. 129 (one year's rent) . . 288 s. 133 (executions, &c.) . . 292 s. 139 (assignees) . 279 s. 141 (assignees) 2 !8, 254, 279 s. 142 (assignees) . 279 s. 147 (powers) . 406 s. 152 (joint debts) . . 456 ss. 166—169 (priority of debts) . 219 s. 170 (apprentice) . . 289 s. 171 (set-oft'). . 258 s. 172 (debts) . . 291 s. 190 (dividends) . . 287 s. 197 (surplus) . 287 ss. 198—200 (certificate) . 296, 461 s. 204 (promise to pay barred debt) . 183 s. 224 (arrangements by deed) . 262 sched. Z. . . 296 13 & 14 Vict. c. 35 (Court of Chancery) • . 496 c. 60 (Trustee Act, 1850) . . 423 14 & 15 Vict. c. 25 (agricultural fixtures, emblemen ts) 144, 151 INDEX TO STATUTES CITED. IxXXV FAGB 15 & 16 Vict. c. 3 (administration for crown) .... 527 c. 24 (wills amendment) 478 c. 55 (trustees) 423 c. 76 (common law procedure) . . . 21, 213 c. 83 (patent law amendment) . 43, 347, 353, 358, 360 c. 86 (summons for administration) . . . 496 16 & 17 Vict. c. 51 (succession duty) . 441—443, 452, 500—502 c. 59 (cheques) . " 206 17 & 18 Vict. c. 31 (Railway and Canal Traffic Act) . . 61 c. 36 (hills of 'sale) 624,625 c. 104 (Merchant Shipping Act) . 64, 118—127, 479 c. 125 (Common Law Procedure Act, 1854). 20, 251 18 & 19 Vict. c. 43 (marriage settlement of infants) . . 553, 559 c. ()7 (bills of exchange and promissory notes) . 211 c. 91 (merchant shipping amendment) . 121, 122, 123 c. Ill (bills of lading) .... 38,134 c. 122 (Metropolitan Building Act) . . . 309 c. 133 (Limited Lialjility Act) . . . .331 19 & 20 Vict. c. 47 (joint stock companies) .... 331 c. 79 (writs of execuition) ..... 108 c. 94 (administration) ..... 523 c. 97 (Mercantile Law Amendment Act, 1856) . 598 s. 2 (restitution of chattels) ... 20 s. 3 (consideration for promise) . . .185 s. 5 (surety) 246, 247 s. 6 (bill of exchange) . . . .203 s. 10 (infancy, coverture, lunacy) . 428, 597, 599, 600, 604 s. 1 1 (joint debtor, absence beyond seas) . 607 s. 12 (absent debtors) . ' . 428, 597, 600 s. 13 (debts, limitations) . . 182, 188, (iOl s. 14 (co-contractor's interest) . . 607, (iOS c. 108 (Small Debts Act) 13 20 & 21 Vict. c. 14 (Winding-up Acts) 331 0. 49 (joint stock com])anies) .... 331 c. 57 (disposition of wife's reversionary interest) 541, 54.3 c. 77 (Court of Probate Act, 1857) . . 3, 36, 225, 489—491, 493, 518—522 c. 79 (probates) ....... 493 c. 80 (joint stock C(>m])aiiies) .... 331 c. 85 ((!ourt for Divorce and Matrimonial Causes) 225, 576—581 21 & 22 Vict. c. 27 (Court of Chancery) 160 c. 56 (probates) ....... 493 c. 60 (joint stock companies) .... 331 c. 91 (joint stock companies) .... 331 c. 95 (executors) . 489,491,493,518,520,522 c. 108 (wife's property) .... 576 — 579 22 & 23 Vict. e. 31 (probates in United Kingdom) . . .493 c. 35 (Ijord St. Leonards' Act) — s. 21 (assignment to self) .... 619 c. 35, s. 24 (concealment of deeds) . . . 620 ss. 27, 28, 99 (administration) . . 499, 519 s. 31 (trustees) 427 c. 36 (.stamps on probates) ..... 492 c. 61 (divorce amendment) .... 576, 582 Ixxxvi INDEX TO STATUTES CITED. PAGE 23 & 24 Vict. c. 38 (amending Lord St. Leonards' Act) . 227, 231, 314, 496, 603, 620 c. 83 (infants' settlements, Ireland) . . . 553 c. 90 (game) 155 c. 106 (railways) 328 c. 126 (Common Law Procedure Act, 1860) . 13, 110,251 c. 127, s. 28 (solicitor's lien) .... 65 576, 577, 582 . 416 . 316, 612 127, 131—133, 224 c. 144 (divorce c. 145 (Lord Cranworth's Act) 24 Vict. c. 3 (transfer of stock) c. 10 (Court of Admiralty) . 24 & 25 Vict. c. 96 (restitution of stolen property) . . 10, 24, 42, 51, 590 c. 114 (domicile) 481 c. 134 (Bankruptcy Act, 1861)— ss. 19 — 27 (abolition of insolvent court) . 267 s. 69 (all debtors subject to bankrupt laws) 267, 268 ss. 70, 71 (act of bankruptcy) 261, 269 . 270 . 270 . 271 . 270 112, 279 . 219 . 296 . 296 . 461 . 262 72 (declaration of insolvency^ s. 73 (execution) ss. 76 — 85 (act of bankruptcy) s. 86 (adjudication) . ss. 108 — 129 (assignees) . s. 156 (priority of debts) . s. 157 (certificates) . s. 161 (order of discharge) s. 163 (discharge) s. 192 (trust deeds for creditors) 25 & 26 Vict. c. 63 (Merchant Shipping Act Amendment Act, 1862) 64, 120, 127 c. 68 (copyright works of art) .... 370 c. 81 (divorce) 576, 577, 582 c. 89 (Companies Act, 1862) . 41, 42, 44, 244, 331—342, 618 c. 114 (poaching) ...... 155 26 Vict. c. 28 (stock certificates) 317 26 & 27 Vict. c. 41 (lien of innkeepers) 61 c. 93 (distress) 104 (i) c. 105 (bills and notes) 203 c. 118 (Companies Claiises Consolidation Act) . 328 27 & 28 Vict. c. 32 (banks) 330 c. 44 (property of wife deserted) . . . 579 c. 56 (stamps) ....... 305 c. 95 (death bj' injury) .... 163, 164 c. 112 (register of \\Tits of execution) . . 231, 462 28 & 29 Vict. c. 72 (seamen's \nlls) 479 c. 86 (partnership . . .244 (a, b), 471, 472 c. 99 (county courts) ..... 36, 497 c. 104 (sale for crown debt) .... 105 29 & 30 Vict. c. 32 (alimony) 576, 577 c. 96 (bills of" sale) 625 30 Vict. c. 29 (sale and purchase of shares) .... 343 30 & 31 Vict. c. 35 (Criminal Law Amendment) . . .587 c. 131 (Companies Act, 1862, Amendment) . 333, 335, 336 c. 144 (Policies of Assurance Act, 1867) . 38, 307 INDEX TO STATUTES CITED. IxXXVii PAGE 31 & 32 Vict. c. 54 (judgments extension) .... 109 c. 71 (county courts admiralty jurisdiction) . 133 c. 77 (divorce appeals) ..... ;j7<) c. 86 (assignment of marine policies) . . 38,311 32 & 33 Vict. c. 46 (specialty and simple contract debts) . . 234 c. 48 (Companies Clauses Act Amendment) . 328 c. 51 (County Court Admiralty Jurisdiction Act Amendment) . . . . .133 c. 62 (Debtors Act, 1869) . . 19, 228—232, 296 c. 71 (Bankruptcy Act, 1869) . . . 266, 617 s. 4 (interpretation) ..... 38 s. 6 (petition for adjudication) . 261, 267 — 271 s. 11 (protection of certain transactions) . 292 s. 14 (appointment of trustee) . . . 279 s. 15 (property of bankrupt) . . 38, 112, 406, 614 s. 17 (devolution of property on trustee) . 38, 112,279 s. 22 (possession of property by trustee) . 38, 254 s. 25 (power of trustee) .... 406 s. 31 (liabilities provable) .... 289 s. 32 (priority of debts) . . . .219 s. 33 (apprentice) 289 s. 34 (distraint for rent, &c.) . . . 288 s. 37 (distinct contracts, &c.) . . . 467 s. 39 (mutual credit and set-off) . 257, 258 s. 45 (surplus) ...... 287 s. 48 (discharge) 296 s 49 (effect of order of discharge) . 183, 296 s 50 (discharge of joint debtor) . . . 461 s. 65 (London Court) ..... 225 s. 83 (trustee) 38 s. 87 (proceeds of sale and seizure) . . 294 s. 90 (appropriation of ])ay or salary) . 283 ss. 91, 92 (voluntary settlements and fraudu- lent preferences) . . . 295, 296 ss. 94, 95 (protection of certain transactions) 292 a. 105 (suits by trustee and bankrupts partner) ..... 456 s. Ill (choses in action) .... 38 s. 112 (bankrupt contractor) . . . 456 s. 118 (debts prior to August, 1861) . . 267 s. 120 (privilege of parliament) . . . 268 s. 125 (liquidation by arrangement) . . 2(52 s. 126 (composition with creditors) . . 262 33 Vict. c. 10 (legal tender) 256 c. 14 (naturalisation) 101,118 33 & 34 Vict. c. 23 (felony) 103, 175 c. 35 (apportionment) .... 400, 401 c. 69 (statute law revision) . . . . 315,612 c. 71 (national debt) . 42, 44, 315—317, 323, 324, 612 c. 93 (married women's property) . 307, 532, 534, 554—557, 580 c. 97 (stamp duties) . 184,306,397,423 c. 102 (oath of allegiance on naturalisation) . 101 34 & 35 Vict. c. 31 (trades union) 195 c. 41 (distress) 104 (l) IxXXviii INDEX TO STATUTES CITED. 34 & 35 Vict. c. 43 (ecclesiastical dilapidations) . . 166, 167 c. 74 (bills of exchange and proraissorj' notes) . 211 c. 112 (possession of stolen goods) ... 51 35 & 36 Vict, c 39 (naturalisation) 101 c. 44 (Court of Chancery Funds) . . . 321 c. 50 (distress) 104 (r) c. 93 (pawnbrokers) ..... 57, 587 c. 96 (ecclesiastical dilapidations) . . .166 36 Vict. c. 12 (custody of infants) 193 c. 31 (Matrimonial Causes Amendment Act) . . 576 30 & 37 Vict. c. 52 (intestates' widow s and children) . . 518 c. 66 (Supreme Court of Judicature Act, 1873) — s. 3 (union of exi.sting Courts) . .160, 224 s. 4 (original and appellate jurisdiction) . 160, 224 ss. 11, 12 (judges) 518 s. 16 (jurisdiction) . 3, 28, 36, 133, 160, 224, 396, 518, 521 s. 17 (jurisdiction) ..... 160 s. 18 (Court of Appeal) . . . 160, 224 s. 24 (law and equity to be concurrently administered) . . . .21 sub-s. 5 (no cause to be restrained by prohibition or injunction) . 496, 497 s. 25, sub-s. 2 (express trust) . . . 611 sub-s. 6 (assignment of debts and choses in action) . . 39, 311, 458 s. 31 (Probate, Divorce and Admiralty Divi- sion) ...... 518 s. 32 (divisions) 161 s. 34 (assignment of certain business to par- ticular divisions) . 3, 36, 133. 160, 161 222, 518 37 & 38 Vict. c. 37 (powers) .408 c. 50 (Married Women's Propertv Act Amend- ment) . . . . ■" . . 556, 557 c. 57 (Real Property Limitation Act, 1874) . 428, 598, 601, 602, 607, 608, 610, 611 c. 62 (infant's contracts) . . 101, 174, 182, 268 c. 78 (vendors and purchasers) .... 138 c. 83 (Supreme Court of Judicature Act, 1873, suspension) . . 28, 36, 39, 133, 160, 396 38 & 39 Vict. c. 27 (intestates' widows and children) . . 518 c. 55 (distress) ....... 106 c. 77 (Supreme Court of Judicature Act, 1875) . 28, 160, 243, 257, 396 s. 10 (amendment of rules of law) . 223, 224, 244 s. 11 (choice of division of High Court) . 161 s. 17 (Rules of Court) ... 20, 321 c. 86 (conspiracv and protection of propertv) • 195 c. 91 (register of trade-marks) . . ". 382, 384 39 & 40 Vict. c. 18 (treasury solicitor) 527 c. 22 (trades unions) . . . . . .195 c. 33 (trade-marks regi.stration) . . . 382, 384 c. 36 (forfeit of smuggled goods) . . 26, 370 c. 59 (appellate jurisdiction) .... 225 c. 70 (probates in United Kingdom) . , 493 INDEX TO STATUTES CITED. Ixxxix 40 & 41 Vict. 41 Vict. c. 13 c. 19 41 & 42 Vict. 42 & 43 Vict. 43 Vict. c. 14 c. 19 43 & 44 Vict. 44 Vict. c. 12 44 & 45 Vict. PAGE c. 26 (companies) ...... 333 c. 33 (contingent remainders) .... 404 c. 37 (trade marks) ...... 384 c. 39 (factors) 23, 87, 90 c. 51 (Indian loans ...... 555 c. 59 (India and colonial stock) .... 324 , s. 1 (acceptances) ...... 203 , s. 3 (divorce) 576, 582 c. 31 (bills of sale) . 75, 76, 84, 87, 95, 96, 97, 98, 113, 114, 117, 125, 147, 148, 152, 153, 625—633 c. 38 (innkeepers) ...... 63 c. 54 (Debtors Act, 1878) . c. 43 (Indian loans) c. 49 (distress) .... c. 59 (outlawTv) .... c. 76 (companies) c. 78 (Judicature Act Amendment) (inland revenue) .... (companies) .... c. 18 (merchant shipping amendment) c. 19 (distress for taxes) c. 35 (wild birds) c. 47 (ground game) . (Customs and Inland Revenue, 1881). . 229 . 555 . 106 . 102 . 332 232 492, 502. 503 . 333 . 119 . 106 . 155 155 443, 492, 501, 45 & 46 Vict. 527 0. 41 (Convej^ancing and Law of Property, 1881) s. 34 (vesting trust propert}' in new trustees) 422 s. 36 (trustee's receipts) .... 421 s. 37 (power for executors to compound) . 495 8. 38 (power to executors or trustees) . 421 s. 39 (restraint on anticipation) . . . 550 s. 43 (maintenance of infants) . . . 416 s. 50 (conveyance to self) .... 620 s. 59 (covenants to extend to heirs) . . 236 s. 60 (effect of joint covenant) . . . 453 s. 61 (advance on joint account) . . 455 c. 51 (wild birds) 155 c. 38 (settled land) . . . 421,447,450,651 c. 39 (Convcyaniung) ...... 633 c. 40 (copjTight^ — musical compositions) . 370, 372 c. 43 (Bills of Sale, 1882) . 75, 76, 84, 87, 95—98, 100, 101, 113, 117, 125, 147, 148, 152, 153, 626, 63a— 639 c. 50 (distress) 106 c. 56 (distress) 104 (i) c. 61 (Bills of Exchange) . . 34, 202—211, 259 c. 75 (Married Women's Propertv, 1882) . 102, 174 243, 244 (A), 267, 307, 406, 432, 435, 485, 486, 532, 557—571, 575, 580 46 & 47 Vict. c. 29 (Supreme Court funds) c. 49 (statute law revision) . c. 52 (Bankruptcy Act, 1883) s. 4 (acts of Ijankruptcy) s. 5 (receiving order) . s. 6 (creditor's petition) 321 20, 110, 160,251 243, 262, 263, 266 . 103,116,261, 267, 268, 270 . 230, 262, 272 . 264, 272, 273 s. 7 (proceedings on creditor's petition) . 272, 273, 274 XC INDEX TO STATUTES CITED. PAGE 46 & 47 Vict. c. 52, s. 8 (debtor's petition) . . . 272, 274 s. 9 (receiving order) . . . 218. 231, 275 s. 10 (receiver) 218, 275 s. 12 (f5pecial manager) .... 275 s. 13 (notice of receiving order) . . . 275 s. 15 (meetings) 2G2, 276 s. 16 (statement of affairs) .... 276 8. 17 (public examination) .... 276 s. 18 (composition) .... 262, 277 s. 20 (adjudication) .38,111,168,253,276,279 s. 21 (trustee) . . . 38,111,253,279 s. 22 (committee of inspection) . . . 279 s. 23 (power to accept composition) . . 279 ss. 24 — 27 (discovery of property) . . 280 s. 28 (discharge of bankrupt) . . . 298 s. 29 (fraudulent settlements) . . . 297 s. 30 (order of discharge) . 183, 199, 219, 249, 298, 461 s. 31 (disqualification for discharge) . . 296 s. 35 (annulling adjudication) . . . 299 s. 36 (payment of debts in full) . . .299 s. 37 (debts provable) . . 199, 289, 290 s. 38 (mutual credit and set-off) . 257, 290 s. 40 (priority of debts) . 219, 224, 239, 241, 244 (A), 287, 288, 466, 472 s. 41 (apprentices) 289 s. 42 (distraint for rent) . 244 (a), 288, 302 s. 43 (relation back of trustee's title) . 288, 292 s. 44 (description of property divisible) . 26, 38, 111, 112, 168,253,281, 614 s. 45 (restriction of rights of creditor under execution) . . .110, 252, 293 s. 46 (duties of sheriff) . . . 109, 294 s. 47 (avoidance of voluntary settlements) . 103, 116, 294, 295,433,434 s. 48 (avoidance of preferences) . 103, 116, 296 s. 49 (protection of bond fide transactions without notice) .... 293 s. 50 (possession of property bv trustee) . 38, 125,' 168, 254, 282, 283 s. 52 (sequestration of benefice) . . . 283 s. 53 (appropriation of pay or salary) . 283 s. 54 (vesting and transfer of property) . 38, 111,112,168,253,279,286 s. 55 (disclaimer of onerous property) . 199, 281, 282 . ss. 56, 57 (powers of trustee) . . 168, 279, 284, 392 s. 58 (declaration of dividends) . . . 287 s. 59 (joint and separate dividends) . . 467 s. 62 (final dividend) 287 s. 63 (no action for dividend) . . . 287 s. 64 (management of property by bankrupt) 285 s. 65 (right of bankrupt to surplus) . . 287 s. 66 (official receivers) .... 275 s. 72 (remuneration of trustee) . . . 286 s. 74 (payment of money into Bank of Eng- land) . . ." . . . .285 INDEX TO STATUTES CITED. XCl PAGE 46 & 47 Vict. r. 52, ss. 74—81 (trustee) . . . 280, 285, 28B s. 83 (official name of trustee) . . 38, 254 s. 84 (power to appoint joint trustees) . 286 s. 80 (removal of trustee) .... 286 s. 89 (control over trustee) 279, 280, 284, 285 s. 90 (appeal against trustee) . . . 285 s. 91 (control of Board of Trade over trus- tees) 280 s 92 (Courts having jurisdiction) . . 272 s. 93 (London Court united with Supreme Court) 225 s. 95 (petition) 274 s. 90 (London Bankruptcy District) . 274, 037 s. 100 (county court) . . . .272 s. 103 (judgment debtors) .... 230 s. 110 (petition against partner) . . 466 s. 113 (actions by trustee) . . . 456 s. 114 (actions on joint covenants) . . 456 s. 115 (proceedings in partnership name) . 466 s. 121 (small bankruptcies) . . .301 s. 122 (administration order by county court) ....... 301 s. 124 (privilege of parliament) . . . 268 s. 125 (administration of estate of person dying insolvent) . 114, 223, 224, 239. 241, 244 (A), 302, 303 s. 126 (debts prior to Aug., 1861) . . 267 s. 127 (power to make rules) . . . 266 s. 146 (^^Tits of elegit and levari facias) . 109 s. 149 (construction) .... 633, 637 s. 150 (provisions to bind the Crown) . 219,224, 225 s. 152 (married women) .... 267 8S. 163—167 (fraudulent debts) . . 231, 296 s. 168 (interpretation) . 38, 168, 244 (a), 253, 280, 298, 434 s. 169 (repeal) 109, 230 schedules (proof) . 109, 244 (a), 276, 290, 291,466,467 0. 57 (Patents, Designs and Trade Marks Act, 1883) . . 43, 347, 354, 355, 358, 360, 366, 384 c. 61 (Agricultural Holdings (England) Act, 1883) 145 47 Vict. c. 14 (husband and wife as witnesses) . . 565, 571 47 & 48 Vict. c. 18 (settled land) 421 c. 43 (distress) . 106 c. ()8 (Matrimonial Causes Act, 1884) . 576, 582, 583 c. 71 (Intestates' Estates Act, 1884) . . .527 48 & 49 Vict. c. 25 (East India Unclaimed Stock Act, 1885) . 612, 613 c. 50 (Metropolitan Board of Works (Monev) Act, 1885) ". .612 49 & 50 Vict. c. 33 (International Copyright Act 1886) . . 370, 379, 380 50 & 51 Vict. c. 28 (Merchandise Marks Act, 1887) . . 26, 383, 389, 596 c. 43 (Stannaries Act, 1887) ... 244 (a) c. 57 (Deeds of Arrangement Act, 1887) . 261, 262 XCn INDEX TO STATUTES CITED. PAGE 50 & 51 Vict. c. 66 (Bankruptcj^ (Discharge and Closure) Act, 1887) 296 c. 70 (appellate jurisdiction of House of Lords) . 225 51 Vict. c. 2 (National Debt (Conversion) Act, 1888) . 314—316 c. 8, s. 19 (stamp on assignment of life policy) . . 307 ss. 21, 22 (succession duty) . . ." . 500, 501 51 & 52 Vict. c. 21 (distress) c. 41 (unclaimed dividends) 104 (I, n) . 612 42 (Mortmain and Charitable Uses Act, 1888) 507 c. 43 (County Courts Acts, 1888) . . .109 s. 67 (equitable jurisdiction) . 36, 430, 497 ss 133—137 (replevin) .... 13 ss. 146, 147 (execution) . 104 (i), 109, 1 11 c. 59 (Trustee Act, 1888) .... 427, 428 c. 60 (priority of debts) ..... 244 c. 62 (Preferential Payments in Bankruptcy Act, 1888) . ". 219, 241—244 (a, b), 266, 288 52 Vict. c. 6 (National Debt Act, 1889) .... 316, 324 c. 7 (stamps on settlements, estate duty) . . . 502 52 & 53 Vict. c. 32 (Trust Investment Act, 1889) . . .417 c. 45 (Factors Act, 1889) . . 22, 74, 87—90, 592 c. 46 (lien of ship's master) .... 127 c. 49 (Arbitration Act, 1889) . . . ,216 c. 60 (company's debts) ..... 224 53 Vict. c. 5 (Lunacy Act, 1890) .... 175, 425 53 & 54 Vict. c. 24 (Deeds of Arrangement Amendment Act, 1890) 261 c. 29 (Intestates' Estates Act, 1890) . . 523, 524 c. 39 (Partnership Act, 1890) . 244 (a, b), 455, 459, 465, 468—474 c. 62 (Companies (Memorandum of Association) Act, 1890) 3.33 c. 63 (Companies (Winding-up) Act, 1890) . . 340 c. 71 (Bankruptcy Act, 1890) . . . .266 s. 1 (acts of" bankruptcy) . . 109, 269, 270 s. 2 (examination) ..... 276 s. 3 (composition) . . 219, 262, 277, 278 s. 5 (committee) . 279 s. 6 (acceptance of composition) . 279 s. 7 (arrest of debtor) . 280 ss. 8, 10 (discharge) . 297, 298 s. 11 (execution) 110, 294 s. 13 (disclaimer) . 281 s. 15 (trustee's remuneration) . 286 ss. 17, 19 (trustee) . 286 s. 18 (stay of execution) . 276 s. 20 (receiving order) 230, 292 s. 21 (administration of deceased insolvent's estate) 114 223, 302 s. 23 (interest) . . 291 s. 25 (duties of trustee) . 262 s. 26 (penal provisions) . 231 s. 28 (distress) . 244 {A) 288, 302 54 Vict. c. 8 (distress) . 105 54 & 55 Vict. c. 36 (Bills of Sale Act, 1891) . 626, 627 c. 39 (Stamp Act, 1891) s. 1 (charge of duty) . 75, 397 ss. 8, 22 (agreement) . . 184 INDEX TO STATUTES CITED. XCll PAGE 54 & 55 Vict. c. 39, s. 14 (assignment) 75 SB. 23, 52, 53, 86 (stock or marketable secu- rity) 55 Vict. 88. 32- — 39 (negotiable instruments) S3. 54 — Gl, 86 (assignment) s. 62 (conveyance and transfer t( trustee) ..... ss. 91, 93, 95, 97 (marine insurance) ss. 98—100 (life insurance) s. 118 (assignment of life policy) ss. 104—106, 122 (settlements) . 1st schedule (duties on instruments) 133, 184, 211,232,238, 306, 310, 344, 397 c. 48 (land stock) .... 417 (Tab.) c. 73 (Mortmain and Charitable Uses Act, 1891) 508, 318 . 211 40, 75, 97 new . 423 . 310 . 306 . 307 318, 397 40, 75, 83, 314 493 195 405 240 318 417 (Tab.), 418, 24, 427—429, 493, 6 (Colonial Probates Act, 1892) c. 9 (Gaming Act, 1892) 55 & 56 Vict. c. 58 (Accumulations Act, 1892) 56 Vict. c. 5 (regimental debts) c. 7 (contract notes) . 56 & 57 Vict. c. 53 (Trustee Act, 1893) . 421 503, 519, 643, 653, 654 c. 63 (Married Women's Property Act, 1893) . 174, 557, 558, 563, 564, 575 c. 71 (Sale of Goods Act, 1893) . . 77 sq., 595 s. 1 (sale and agreement to sell) . . 77, 595 ss. 3, 4 (formalities of contract) . . 80, 81, 317, 342 . 79 . 83 . 595 595, 596 77—80 91 . 587 15, 588, 589 26, 85, 92, 591 s. 5 (future goods) s. 8 (price) s. 12 (warranty of title) s. 14 (warranty of quality) ss. 16 — 19 (transfer of property) s. 20 (risk of loss) s. 21 (stolen goods) s. 22 (market overt) . 23 (voidable title) . s. 24 (stolen goods) ... 10, 15, 590 8. 25 (possession after sale) . . 24, 88 8. 26 (writs of execution) .... 108 ss. 27—29 (payment and delivery) . 74, 82, 86 s. 32 (delivery to carrier) ... 82, 90 ss. 38 — 48 (rights of unpaid seller) . 80—93 s. 52 (specific performance) . . .20 s. 61 (sales by way of security not affected) 95, 147 8. 62 (definition) . 77, 78, 86, 87, 317, 342 30 (estate duty) . 443—447, 479, 492, 493, 501 60 (merchant shipping) . 64,118—127,479 57 & 58 Vict, c c 58 & 59 Vict. c. 39 (married women 59 & 60 Vict. c. 25 (friendly societies) c. 28 (estate duty) c. 35 (judicial trustees) c. 15 (seamen's wills) . 19 (preferential pa5'ments in bankruptcy) 60 Vict. 60 & 61 Vict. c'. 65 (descent of land) 575, 580 240, 287 445, 494, 502 . 422, 428 . 479 . 244 2, 137, 222, 484, 488, 517 XCIV INDEX TO STATUTES CITED, PAGE 61 & 62 Vict. c. 9 (contract notes) 318 c. 10 (estate duty) 447 c. 26 (companies) 336 c. 46 (stamps) 318, 344 62 & 63 Vict. c. 9 (stamps) 344 63 Vict. c. 7 (estate duty) 445 63 & 64 Vict. c. 26 (Land Charges Act, 1900) . . . 227, 462 c. 32 (merchant shipping) ..... 127 c. 48 (companies) . . . 334, 336, 337, 346 0. 50 (fixtures) 146 c. 51 (money-lenders) 191 c. 62 (colonial stock) 417 (Tab.) 1 Edw. VII. c. 7 (insurance) 311 2 Edw. VII. c. 15 (musical copyright) 378 c. 28 (married women) 575, 580 c. 41 (trust investments) . . . . 417 (Tab.) 3 EdAv. VII. c. 37 (trust investments) . . . .417 (Tab.) 5 Edw. VII. c. 15 (trade marks) 383—388 6 Edw. VII. c. 17 (crossed cheques, bankers' protection) . . 206 c. 21 (ground game) ...... 155 36 (musical copyright) marine insurance) c. 41 7 Edw. VII. c. 12 c. 13 c. 18 c. 23 c. 24 c. 29 c. 50 8 Edw. VII. c. 28 c. 47 c. 53 c. 69 9 Edw. VII. c. 34 c. 42 c. 43 10 Edw. VII. c 8 378 38, 64, 136, 171, 189, 195, 196, 310, 311 merchant shippmg) . . 64, 121, 124, 127 public trustee) . 422, 430, 497, 498, 517, 519 Workmen's Compensation Act, 1906) . . 242, 244 (A), 254 divorce) ....... 581 Finance Act, 1907) .... 83, 445 Married Women's Property Act, 1907) . 432, 485, 486, 559, 567, 568 Court of Ci'iminal Appeal) .... 225 limited partnerships) .... 471, 475 Patents and Designs Act, 1907) . . .43, 347—368, 380—382, 388 Companies Act, 1907) . . . 250, 332, 334, 337, 346 Agricultural Holdings Act, 1908) . 104 (i, n), 145, 146, 244 (b) vesting lunatic's stock) .... 425 distress) 104 and (i, n) Companies Consolidation Act, 1908) . 41, 44, 224, 242, 244, 250, 258, 330—340, 342, 345, 346 distress) 104 (i) trust investments) . . . .417 (Tab.) stamps) 97 Finance Act, 1910)— ss. 54, 57 — 63 (estate, legacy and succession duty) . . . 442—446, 501, 502, 627 ss. 73, 74 (stamps) . 75, 97, 344, 397, 398, 423 ss. 77—79 (contract notes) . • . . 318, 319 s. 96 (interpretation) .... 318, 319 Second Schedule (estate duty) . . 443—446 1 & 2 Geo. V. c. 22 (bank notes) 203 c. 37 (Conveyancing Act, 1911) . . . 222, 420, 421, 544, 643 c. 38 (money-lenders) 191 c. 40 (vesting lunatic's stock) .... 425 INDEX TO STATUTES CITED. XCV PAGE 1 & 2 Geo. V. c. 41 (admiralty jurisdiction) .... 131 c. 4(5 (Copyright Act, 1911) . 42, 43, 370—380 c. 48 (Finance Act, 1911) .... 317,344 c. 57 (Maritime Conventions Act, 1911) . 133, 104, 599, 000 2 & 3 Geo. V. c. 8 (marine insurance) ..... 310 3 & 4 Geo. V. c. 25 (Companies Act, 1913) . . . Addenda c. 34 (Bankruptcy Act, 1913) . . . Addenda ERRATA. Page 15, note (/). For " Hargrove " read " Hargreave." ., 133, note (t). For " next chapter " read " Part II. Chaii „ 170, line 4. For " required " read " acquired." „ 194, note (c). For '' Tou-nend " read " Townsend.'' ADDENDA. Page 25, note (p). See Addenda to page 588, lines 8 — 13. „ 64, note (p). Add " Dennis d- Sons, Ld. v. Cork Steamship Co., Ld., 1913, 2 K. B. 393." ,, 105, note (e). Add " Ecclesiastical Commrs. v. Upjohn, 1913, 1 K. B. 501." „ 107, note [p). Stat. 8 Anne, c. 18, s. 1, is amended by 3 & 4 Geo. V. c. 34, s. 18 (2), substituting six months' for one year's arrears, unless notice be served as therein provided. „ 109, note (c). Stat. 53 & 54 Vict. c. 7, s. 1, is amended by 3 & 4 Geo. V. c. 34, s. 27, and Second Schedule. „ 174, note (m). Add after " ]Yalter\. Everard,'^ "Roberts v. Gray, 1913, 1 K. B. 520. " „ 204, note (b). Add " see M. T. Shaw d- Co., Ld. v. Holland, 1913, 2 K. B. 15." ,, 225. After Unc 4, insert " And so is the Railway and Canal Com- mission ; stat. 51 & 52 Vict. c. 25, s. 2 ; National Telephone Co., Ld. v. Postmaster-General, 1913, 2 K. B. 614, 018." „ 230, note (e). Stat. 46 & 47 Vict. c. 52, s. 103 (5), is amended by 3 & 4 Geo. V. 0. 34, s. 41. ., 244, table opposite (A). Stat. 46 & 47 Vict. c. 52, s. 42. is amended by 3 & 4 Geo. V. c. 34, s. 18. w.p.p. g XCVIU ADDENDA. Page 250. By the Bankruptcy Act, 1913 (.3 & 4 Geo. V. c. 34), .-ect. 14 (sub-s. 1), " Where a person engaged in any trade or business makes an assignment to any other person of his existing or future book debts or any class thereof, and is subsequently adjudicated bankrupt, the assignment shall be void against the trustee as regards any book debts which have not been paid at the commencement of the bankruptcy unless the assignment has been registered as if the assignment were a bill of sale given otherwise than by way of security for the payment of a sum of money, and the provisions of the Bills of Sale Act, 1878, with respect to the registration of bills of sale shall apply accordingly, subject to such necessary modifications as may be made by rules under that Act : " Provided that nothing in this section shall have effect so as to render void any assignment of book debts due at the date of the assignment from specified debtors, or of debts growing due under specified contracts, or any assignment of book debts included in a transfer of a business made bond fide and for value, or in any assignment of assets for the benefit of creditors generally." (sub-s. 2) " For the purposes of this section, ' assignments ' include assignments by way of security and other charges on book debts." „ 2.52, note (q). Stat. 53 & 54 Vict. c. 71, s. 3, has been amended by 3 & 4 Geo. V. c. 34, s. 7. Pages 261 — 264. The Bankruptcy and Deeds of Arrangement Act, 1913 (3 & 4 Geo. V. c. 34), Pait II. (ss. 28—40), contains many new provisions as to deeds of arrangement. By sect. 28, a deed of arrangement is to be void unless, before or within twenty-one days after the registration thereof, or within such extended time as therein mentioned, it has received the assent of a majority in number and value of the creditors of the debtor ; and the trustee is required to file with the Registrar of Bills of Sale a statutory declaration of such assent. By sect. 29, the trustee under a deed of arrangement is required to give security as therein mentioned, unless the majority in number and value of the creditors dispense therewith, and he is required to bank all moneys received by him. By sect. 31, if the trustee under a deed of arrangement serves in the prescribed manner on any creditor of the debtor notice in writing of the execution of the deed and of the filing of the certificate of creditors' assents, with an intimation that the creditor will not, after the expiration of one month from the service of the notice, be entitled to present a bankruptcy petition against the debtor founded on the execution of the deed, or on any other act committed by him in the course or for the purpose of the proceedings prehminary to the execution of the deed, as an act of bankruptcy, that creditor shall not, after the expiration of that period (unless the deed becomes ADDENDA, XCIX void), be entitled to present a bankruptcy petition against the debtor founded on the execution of the deed, or on any act so committed by him, as an act of bankruptcy. But where a deed of arrangement has become void by virtue of the Deeds of Arrangement Act, 1887, or this Act, the fact that a creditor has assented to the deed shall not disentitle him to present a bankruptcy petition founded on the execution of the deed of arrangement as an act of bankruptcy. By sect. 32, further provision for the trustee to render accounts and for their audit. By sect. 37, the Deeds of Arrange- ment Act, 1887, shall extend to any instrument of the classes mentioned in sect. 4 of thatAct, made after the commencement of this Act by, for, or in respect of the affairs of a debtor who was insolvent at the date of the execution of the instrument for the benefit of any three or more creditors, in like manner as if such instrument had been made by, for, or in respect of the affairs of the debtor for the benefit of his creditors generally, but no such instrument (unless it is in fact for the benefit of creditors generally) shall be deemed to be a deed of arrange- ment within the meaning of the foregoing provisions of this Part of this Act, except such of those provisions as impose penalties on trustees for failure to transmit accounts. And for the purposes of this section, any two or more joint creditors .shall be treated as a single creditor. Sects. 38 and 40 provide for the protection in certain respects of the trustee of a void deed of arrangement as against the debtor's trustee in bank- ruptcy. Page 262, note (r). Stat. 53 & 54 Vict. c. 71, s. 25 (2, b), is amended by 3 & 4 Geo. V. c. 34, s. 27, and Second Schedule. „ 267, and notes (k), (I). By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), s. 8, the expression " a debtor " in that Act and in the Bankruptcy Acts, 1883 and 1890, unless the context other- wise implies, includes any person, whether a British subject or not, who at the time when any act of bankruptcy was done or suffered by him, («) was personally present in England, (l>) or ordinarily resided or had a place of residence in England, or (c) was carrying on business in England personally, or by means of an agent or manager, or (d) was a member of a firm or partnership which carried on business in England. „ 267, lines 10—17. By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sect. 12 (sub-s. 1), " Every married woman who carries on a trade or business, whether .separately from her husband or not, shall be sul)ject to the bankruptc\' laws as if she were a feme sole." (subs. 2) " Where a married woman carries on a trade or business and a final judgment or order has been obtained against her, whether or not expressed to be payable out of her separate property, for any amount, that judgment or order shall be available for bankruptcy proceedings against her by a bank- C ADDENDA. ruptcy notice as though she were personally bound to pay the judgment debt or sum ordered to be paid." (sub-s. 3) " Where a married woman who has been adjudged bankrupt has separate property the income of which is subject to a restraint on anticipation, the court shall have power, on the appUcation of the trustee, to order that during such time as the court may order the whole or some part of such income be paid to the trustee for distribution among the creditors, and in the exercise of such power the court shall have regard to the means of subsistence available for such woman and her cliildren." (sub-s. 4) " Where a married woman has been adjudged bankrupt, her husband shall not be entitled to claim any dividend as a creditor in respect of any money or other estate lent or entrusted by him to his wife for the purposes of her trade or business until all claims of the other creditors of his wife for valuable consideration in money or money's worth have been satisfied."' Page 269, note (/). Stat. 53 & 54 Vict. c. 71, s. 1, is amended by 3 & 4 Geo. V. c. 34, s. 27, and Second Schedule. ,, 270, paragraph (jr). Sect. 4(1, gr) of the Bankruptcy Act, 1883, is amended in certain particulars by the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), s. 16. „ 273, lines 15—19 By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sect. 9 — " for paragraph (d) of sub-section ( 1 ) of section six of the principal Act (which relates to the conditions on which a creditor may present a bankruptcy petition), the following paragraph shall be substituted : — ' (d) The debtor is domiciled in England, or within a year before the date of the presentation of the petition has ordinarily resided, or had a dwelhng-house or place of business, in England, or (except in the case of a person domiciled in Scotland or Ireland or a firm or partnership having its principal place of business in Scotland or Ireland) has carried on business in England, personally or by means of an agent or manager, or (except as aforesaid) is or within the said period has been a meinber of a firm or partnership of persons which has carried on business in England bj' means of a partner or partners, or an agent or manager.' " ,, 276, line 11. The words " accepted or " in stat. 46 & 47 Vict. c. 52, s. 20 (1), were repealed by 3 & 4 Geo. V. c. 34, s. 27, and Second Schedule. „ 279, note {p). Stat. 46 & 47 Vict. c. 52, s. 22, is amended by 3 & 4 Geo. V. 0. 34, s. 17. ,. 281, note (z). See now stat. 3 & 4 Geo. V. c. 34, s. 19 (2). „ 285, fines 19—22. Stat. 46 & 47 Vict. c. 52, s. 74, is amended by 3 & 4 Geo. V. c. 34, s. 20. ADDENDA. CI Page 286, line 18. See now the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), s. 19, as to the removal of a trustee by the Board of Trade. „ 288 and notes (d), (e). Stat. 46 & 47 Vict. c. 52, s. 42, is amended by 3 & 4 Geo. V. c. 34, s. 18. „ 291, note (s). Stat. 53 & 54 Vict. c. 71, s. 23, is amended by 3 & 4 Geo. V. c. 34, s. 22. „ 293, line 13. By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sect. 10 — "a payment of money, or delivery of property, to a person subsequently adjudged bankrupt, or to a person claim- ing by assignment from him shall, notwithstanding anything in the enactments relating to bankruptcy, be a good discharge to the person papng the money or dehvering the property, if the payment or dehvery is made before the actual date on which the receiving order is made and (except in cases where the receiving order is made under sub-section (5) of section one hundred and three of the principal Act) without notice of the presentation of a bankruptcy petition, and is either pursuant to the ordinary course of business or otherwise bond fide." „ 295, Unes 12—23. By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sect. 13 — "the following sub-sections shall be substituted for sub-section (2) of section forty-seven of the Bankruptcj'^ Act, 1883, which relates to the avoidance of settlements : — ' (2) Any covenant or contract made by any person (herein- after called the settlor) in consideration of his or her marriage, either for the future payment of money for the benefit of the settlor's wife or husband, or children, or for the future settle- ment on or for the settlor's wife or husband or children of property, wherein the settlor had not at the date of the marriage any estate or interest, whether vested or contingent, in posses- sion or remainder, and not being money or property in right of the settlor's wife or husband, shall, if the settlor is adjudged bankrupt and the covenant or contract has not been executed at the date of the commencement of his bankruptcy, be void against the trustee in bankruptcy, except so far as it enables the persons entitled under the covenant or contract to claim for dividend in the settlor's bankruptcy under or in respect of the covenant or contract, but any such claim to dividend shall be postponed until all claims of the other creditors for valuable consideration in money or money's worth have been satisfied. ' (2a) Any payment of money (not being payment of premiums on a poHcy of life assurance) or any transfer of pro- perty made by the settlor in pursuance of such a covenant or contract as aforesaid shall be void against the trustee in the settlor's bankruptcy, unless the persons to whom the i)ayment or transfer was made, prove, either — ' (a) that the payment or transfer was made more than two years before the date of the commencement of the bankruptcy ; or CU ADDENDA. ' (6) that at the date of the payment or transfer the settlor was able to pay all his debts without the aid of the money so paid or the property so transferred ; or ' (c) that the payment or transfer was made in pursuance of a covenant or contract to pay or transfer money or property expected to come to the settlor from or on the death of a particular person named in the covenant or contract and was made within three months after the money or property came into the possession or under the control of the settlor : but, in the event of any such payment or transfer being declared void, the persons to whom it was made shall be entitled to claim for dividend under or in respect of the covenant or contract in like manner as if it had not been executed at the commencement of the bankruptcy.' " Page 296, note (t). Stat. 32 & 33 Vict. c. 62, ss. 11 sq., have been amended by 3 & 4 Geo. V. c. 34, ss. 2, 3, 4, 5, and First Schedule. ,^ 296, note (u). Stat. 46 & 47 Vict. c. 52, s. 31, has been repealed and replaced by 3 & 4 Geo. V. c. 34, s. 5. „ 296, line 4. After "creditor" insert "or any surety or guarantor for the debt due to such creditor " ; stat. 3 & 4 Geo. V. c. 34, s. 27, and Second Schedule. Pages 296— 298, and note (a). By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), s. 6, the period for which a bankrupt's discharge may be suspended may be a period of less than two years if the only fact proved is that his assets are not of a value equal to 10s. in the pound on the amount of his unsecured habilities. And stat. 53 & 54 Vict. c. 71, s. 8, is further amended by the same Act (s. 27, and Second Schedule). „ 299—300. By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sect. 11 (sub-s. 1), "All transactions by a bankrupt with any person dealing with him bond fide and for value in respect of property, whethei real or personal, acquired by the bankrupt after the adjudication shall, if completed before any inter- vention by the trustee, be valid against the trustee, and any estate or interest in such property which by virtue of the enactments relating to bankruptcy is vested in the trustee shall determine and pass in such manner and to such extent as may be required for giving effect to any such transaction. " This sub-section shall apply to transactions with respect to real property completed before the commencement of this Act in any case where there has not been any intervention by the trustee before that date. " For the purposes of this sub-section, the receipt of any money, security, or negotiable instrument from, or by the order or direction of, a bankrupt by his banker, and any payment and any delivery of any security or negotiable instrument ADDENDA. ClU made to, or by the order or direction of, a bankrupt bj- his banker, shall be deemed to be a transaction by the bankrupt with such banker deaUng with him for value." (sub-s. 2) " Where a banker has ascertained that a person having an account with him is an undischarged bankrupt, then, unless the banker is satisfied that the account is on behalf of some other person, it shall be his duty forthwith to inform the trustee in bankruptcy or the Board of Trade of the existence of the account, and thereafter he shall not make any payments out of the account except under an order of the court or in accordance with instructions from the trustee in bankruptcj', unless by the expiration of one month from the date of giving the information no instructions have been received from the trustee." (sub-s. 3) " In the event of a second or subsequent recei^^ng order being made against a bankrupt, any propertj'^ acquired by him since he was last adjudged bankrupt which at the date when the subsequent petition was presented had not been distributed amongst the creditors in such last preceding bankruptcy, shall (subject to any disposition thereof made by the official receiver or trustee in that bankruptcy, without knowledge of the presentation of the subsequent petition and subject to the provisions of sul)-scction (1) of this section) vest in the trustee in the subsequent bankruptcy, but any unsatisfied balance of the debts provable under the last preceding bank- ruptcy may be proved in the subsequent bankruptc}' bj^ the trustee in the last preceding bankruptcy." (sub-s. 4) " Where the trustee in any bankruptcy receives notice of a subsequent petition in bankrujitcy against the bankrupt, he shall hold any property then in his possession which has been acquired by the bankrupt since he was adjudged bankrupt until the subsequent petition has been disposed of, and, if on the subsequent petition an order of adjudication is made, he shall transfer all such property or the proceeds thereof (after deducting his costs and expenses) to the trustee in the subsequent bankruptcy." Page 302, note (o). Stat. 46 & 47 \'ict. c. 52, s. 42, is amended by 3 & 4 Geo. V. c. 34, s. 18. Pages 302, 303. By sect. 21 of the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sects. 27, 73 and. 121 of the Act of 1883 are made applicable in administration in bankrujjtcy of the estates of persons d3nng insolvent. Page 331, note (r). By the Companies Act, 1913 (3 & 4 Geo. V. c. 25), s. 1 (1), a private company is to cease to be entitled to the privileges and exemptions conferred on private companies if it makes default in compl3ing with the provisions required by sect. 121 of the Companies (Con.solidation) Act, 1908, to be included in its articles in order to constitute it a private company ; but the Court is empowered in certain cases to CIV ADDEXDA, relieve the company from these consequences. By sub-s. 2, the number of members of a private company is limited to fifty, exclusive not only of persons who are in the employment of the company, but also of persons who having been formerly in the employment of the com])any were while in such employ- ment and have continued after the determination of such employment to be members of the company. Page 392, lines 12—14. See stat. 3 & 4 Geo. V. c. 34, s. 25, as to the bankruptcy of an assignee of copyright liable to pay royalties or a share of profits to the author. „ 474, note (g). See now .stat. 3 & 4 Geo. V. c. 34, s. 24, as to the bankruptcy of the members of a hmited partnership. „ 550, hnes 3 — 9, andnote(c). See Addenda to TpsLge 261, ]ine3 10 — 17. Pages 559 (last four lines) and 560, note (g). See Addenda to page 267, lines 10—17. Page 562, notes {y), (z). See Addenda to page 267, lines 10 — 17. " 588, note {p). See stat. 3 & 4 Geo. V. c. 34, s. 23. " 588, lines 8— 13. By the Bankruptcy Act, 1913 (3 & 4 Geo. V. c. 34), sect. 15 — " Where any goods in the j^ossession of an execution debtor at the time of seizure by a sheriff, high baihff, or other officer charged with the enforcement of a writ, warrant, or other process of execution, are sold by such sheriff, high baiUiJ, or other officer, without any claim having been made to the same, the jjurchaser of the goods so sold shall acquire a good title to the goods so sold, and no person shall be entitled to recover against the sheriff, lugh bailiff, or other officer, or anyone lawfully acting under the authority of either of them, except as provided by the Bankrui:)tcy Acts, 1883 and 1890, for any sale of such goods or for paying over the proceeds thereof, prior to the receipt of a claim to the said goods unless it is proved that the person from whom recovery is sought had notice, or might by making reasonable inquiry have ascertained that the goods were not the propertj^ of the execution debtor : Provided that nothing in this section contained shall affect the right of any claimant who may prove that at the time of sale he had a title to any goods so seized and sold to any remedy to which he may be entitled against any person other than such sheriff, high baiUff, or other officer as aforesaid." „ 611, note (o). Add "but a trust to pay debts out of a mixed fund of realty and personalty takes the debts out of the statute as regards the entire debts, and not merely the proportion payable out of the realty ; Be Raggi, 1913, 2 Ch. 206." PRINCIPLES OF THE LAW OF PERSONAL PROPEPJY. INTRODUCTORY CHAPTER. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY. § 1. Of the difference betweeii Real and Personal Property. Property in English law is divided into two Real and classes, real property and personal property, and p^op^"^^ these are governed by very different rules. This great classification (a) has its origin in the fact that after the Norman Conquest land, then the main source of pubHc wealth, became subject to the law of feudal tenure, which was not applied to moveable things known as chattels or goods (b). This caused a Distinction great distinction to be drawn between propertv in betwppn . ' property in land and property in chattels. For the first principle land and of the law of feudal tenure is that the supreme Pu^P^'j*^ '" ownership of all land belongs to the Crown, and no subject can be the absolute owner of land. Subjects can at most hold freely of the King or some mesne lord the hereditary estates called fees, or estates in fee simple (c). The law of feudal tenure, moreover, (a) For a full account of the This book is hereinafter referred origin and historj' of the classifi- to as " Williams, R. P." cation of projierty aa real or per- (b) Williams, R. P. 9 — 1.5, 21st Ronal, the reader is referrecl to cd. ; see P. & M. Hist. Eni;. Law, Principles of the Law of Real ii. 148 sq. Property, Introductory Chapter, (<■) Williams, R. P. (5, 7, 19, 32, 21st ed., by the present editor. 21st ed. W.P.P. 1 2 INTRODUCTORY CHAPTER. As to liberty was restrictive of alienation ; and although tenants of alienation, jj^ ^^^ simple acquired the power of disposing of their estates by act inter vivos at a comparatively early time (d), it was not until a much later period that they were enabled to devise their estates by will (e). Chattels on the other hand remained the object of a direct and absolute ownership resembling the dominion over corporeal things conceived in Roman law (/). Nor were they ever subjected to any restriction upon alienation ; they were always transferable as well by will as in the owner's life- time : though it is true that in early times the owner of chattels could not bequeath away more than a part of them, if he left a widow or child (g). Chattels too were not only the objects of the right of free disposition, which is incident to absolute ownership, but they were also liable to satisfy their owner's debts after his death as well as in his lifetime ; a liability which was not fully imposed on fees until a very modern date (Ji). As to succes- sion after death. Another difference between fees and chattels was in the mode of succession after death. Fee simple estates passed at common law to the heir of the tenant who died possessed of them (i). And the heir was ascertained from amongst the tenant's nearest blood relations by rules, of which the most prominent preferred males to females in the same degree of relationship, and of males equally related selected the eldest as heir to the exclusion of all others (j). Originally, it would seem, the heir was (d) After stat. 18 Edw. I. c. 1 ; Williams, R. P. 66—74, 2 1st ed. (e) After stats. 32 Hen. VIII. c. I, and 12 Car. II. c. 24 ; ib. 74, 75, 244, 245. (/) See Gai. Comm. 1. ii. §§ 40 sq. ; 1. iv. §§ 3, 41, 45, 47, 48 ; Inst. 1. i. tit. i. §§ 11 sq., 40; 1. iv. tit. vi. § 1 ; Co. Litt. 145 b, 351 b. [g) Post, Part III. ch. III. (h) Williams, R. P. 2, 20, 268 —285, 21st ed. (i) They now pass to the executor or administrator on trust for the heir or devisee ; Stat. 60 & 61 Vict. c. 65, Part I. (j) Williams, R. P. 19, 85—89, 229, 21st ed. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY i also entitled to his deceased ancestor's chattels for the purpose of paying the ancestor's debts. But afterwards all title of an owner of chattels passed, on his death, either to the persons, whom he had appointed to perform his will and who were called his executors, or if he died intestate, then to the administrator of his effects, appointed in pursuance of a statute of Edward III. (Ic) from among the next friends of the deceased by the ecclesiastical authority, to whom the administration of intestates' effects had been previously committed {I). And the administrator of an intestate is bound {m) to distribute the surplus of his chattels, after payment of his debts, between his widow and children or next of kin, according to rules, which permit males and females in the same degree of relationship to share equally, giving no preference to males or to the eldest male {n). A further distinction between property in land As to the and property in goods arose from the different Jiature'of the nature of the remedies given for the deprivation of remedies for either. This distinction rests at bottom upon the oriJmUnd^ physical difference between land, which is immove- goods. able and indestructible, and goods, which are moveable and perishable. Hence a dispossessed landholder can always be restored by process of law to the identical holding, from which he has been ejected : while there is no such certainty of specific restitution in the case of goods. For goods may always be taken out of the jurisdiction, lost or (A) Stat. 31 Edw. III. e. 11. Vict. c. m, ss. 1(3, 34. (/) Williams, R. P. 20, 21, 21st (m) By stats. 22 & 23 Car. II. ed. After the year 1857 the e. 10 ; 29 Car. II. c. 3, s. 25 ; 1 administrator of an intestate's Jae. II. e. 17, s. 7 ; enforcing a effects was appointed hy the mode of distribution which the Court of Proljate. Since 1875 ecclesiastical courts had pre- he has Ijeen appointed hy the viously attempted to secure ; see Prohate Division of the"lii._'l> I Sir'!'. Raym. 497—190; 2 Court of Ju.stiie. See stats. Black. Comm. 515. 20 & 21 Vict. e. 77, s. 4 ; 30 & 37 (n) Post, Part III. ch. IV. 1—2 INTRODUCTORY CHAPTER. destroyed ; when the law can give the dispossessed owner no remedy but pecuniary compensation (o). Actions were therefore classified in English law, as real or personal, according to the nature of the relief afforded thereby (p). Real actions were those brought for the recovery of lands or tenements (q), wherein specific restitution was obtainable by process of execution issuing directly against the thing demanded (in rem). Personal actions were brought to enforce an obHgation imposed on a man personally to make reparation for a breach of contract or a wrong ; in other words they were brought to obtain pecuniary compensation for a violation of right — what the Enghsh law calls damages. Actions in which claims for both kinds of rehef were combined were called mixed actions (r). Not every kind of landholding, however, was recoverable in a real action. From the reign of Henry II., owing to the permanent estabHshment of the King's Court, and the provision of special remedies therein for dispossessed landholders, all the existing forms of landholding were submitted to the classifying action of a general judge-made law. The result was that freeholdings of land, or free tenements, were the only form of property in land admitted to be protected in the King's Court by real or mixed action. This restriction left unprotected in the King's Court, and therefore without the pale of property, the humbler form of landholding known as tenure in villenage (s). Tenure in villenage, however, gave rise to the customary property in land, which in later times obtained complete legal protection as copyhold (t). But there were in early times certain valuable interests in land, which fell short of the dignity of (o) Williams, R. P. 11, 12, {q) lb. 23—25. 21st ed. (r) lb., 23, 24. (p) Williams, R. R 23, 24, and (s) lb. 16, 17, 46, 4(), 454. n. (a), 21st ed. (<) lb. 27, 460—462. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY freehold, without incurring the degradation of villenage. The most important of these were tenancies for a term of years. Placed outside the class of free tenements, they nevertheless obtained special legal protection. But they were reckoned as chattels, and thus became the objects of the same liberty of alienation and liability for debt as attached to the ownership of other chattels. Chattel interests in land also came to be completely assimi- lated to other chattels with regard to the mode of succession after death, passing to the executor or administrator, not the heir (u). Now, as free tenements were the only things Realty ami recoverable m the reaUy, or specifically by real action, P'^r'^""^lty. they became known by the name of realty or of real things ; while things recoverable in personal actions were termed personalty, or personal things (;r). And when the word realty had thus come to denote the freehold, chattel interests in land were given the name of chattels real, because, it was Chattels real said, they concerned the realty ; while moveable "^ Personal, goods were distinguished as chattels personal, " because for the most part they belong to the person of a man, or else " (which seems the better reason) " for that they are to be recovered by personal actions " {y). In later times, however, when men began to speak of all their property or valuable rights as their estate, and to classify their estate as real or personal {z), the limits of the two classes of property were determined rather by the difference in the mode of succession after death than by the nature of the actions for their recovery. The term real estate was appropriated to the realty, which («) Williams, R. P. 20, 21, 25, 28, 21st cd. [x) lb. 25. (?/) Co. Litt. 118 b; see Wil- liams, R. P. 25, 21st ed. (2) This was hardly common hoforc the Restoration of Charles II. ; Williams, R. P. 8 and n. {d), 26 and n. (r), 21st ed. INTRODUCTORY CHAPTER. passed to the heir, or to real hereditaments ; while chattels real, which passed to the executor, were on that account placed in the class of personal estate (a). Thus in modern times what is called personal property or estate comprises all chattels, which go to the executor, be they chattels real, that is. chattel interests in land, or chattels personal, namely, moveable goods and other things, for the withholding of which damages only are recover- able (b). As the law respecting chattels real is a branch of the law of property in land, it has been noticed in the author's treatise on the " Law of Real Property ; " and chattels real will only be incidentally mentioned in the present work, which treats of chattels personal. Examination of the reme- dies for the recovery of goods. § 2. 0/ the Remedies for the Recovery of Goods. We have seen that, according to the better opinion, moveable goods are said to be called chattels personal or things personal because they are things recoverable in personal actions. How it came about, that goods were only recoverable in personal actions, will appear on examination of the various remedies for the wrongful deprivation of goods. This will also show us that, while the owner of goods, in respect of their freedom from the incidents of feudal tenure, enjoyed a fuller ownership than a freeholder in fee of land, in respect of the right to recover possession, which seems to be an essential part of the conception of ownership (c), the owner of goods was by no means so effectually protected as the free- holder of land. For the common law always gave the dispossessed freeholder the right to recover possession of his land from all others, whether he had been ejected or had parted voluntarily with («) Williams, K. P. 8, 25 — 29, prises personal hereditaments ; 21st ed. ib. 28, n. (h). (b) \\'illiams, Pv. P. 28, 29, 21st (c) lb. 2, 6, 7, 17. ed. Personal estate also com- OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY possession for a space of time, which had come to an end, and whether the person who held him out of the land had taken or received possession thereof from him directly, or by ejectment of or conveyance from the original wrongdoer or any of his suc- cessors (d). But it was only by tortuous steps that the dispossessed owner of goods acquired the right to recover possession of them as against all others, irrespective of the questions, whether he had parted with the goods against his will, or not, and whether the Avrongful withholder of the goods had taken them directly from tlie owner, or from a previous wrongful taker. In the case of land too, the common law has accorded process enabling the freeholder, and ultimately the leaseholder and the copyholder, to obtain specific restitution (e). But the process given to enforce the restitution of goods was im- perfect ; besides, the perishable nature of goods renders any certainty of restitution impossible. The most ancient remedy for an owner of goods, Action of who had lost possession of them from theft or ^^^^^" otherwise unwilhngly, was that which Bracton describes as an action of theft {actio furti) (/). A part of this remedy was the fresh pursuit of the thief or of the missing goods ; and the action lay against any person, in whose possession the goods were found, whether he were the original thief or taker, or had acquired possession of tliem, honestly or dishonestly (g), from or through the original taker (h). By these proceedings the owner might obtain both the restitution of the goods and the punishment of the thief ; for if the o^vner succeeded in maintaining the charge of theft and the goods (d) Bract, fo. 102 a, 104 a, KiO, .55 ; Britt. liv. i. ch. 1(>, 25 ; and 161, 317 b sq., 327 b. sq. sec P. & M. Hist. Eng. Law, ii. (e) Williams, R. P. 17, 18, 27, 155— 1()3. 65, 460 — iG2, 21st cd. {. 8. to the proi)erty is not in disj)ute) (e) Paston, J., Y. B. 9 Hen. until the expu-ation of ten days VI. 45, pi. 28 ; 32 Hen. VI. 1, after the date of the conviction, pi. 3 ; 33 Hen. VI. 5, pi. 15 ; 2 or, where notice of appeal or Inst. 713. leave to appeal is given within (/) See Hargrave v. Spink, ten days after the date of the 1892, 1 Q. B. 25 ; stat. 56 & 57 conviction, until the dcterinina- Vict. c. 71, s. 22 ; Clai/lon v. Le tion of the appeal. Boy, 1911, 2 K. B. 1031, 1038 .»c\vin on Trusts, 564, Cth ed. ; 878, 12th ed. (y) Williams, R. P. 174, 177, (r) Dairy v. William^son,\m», 21st cd. 2 g. R. li)4. [z) Stat. 29 Car. II. c. 3, s. 7 ; ((/) Williams, R. P. 181—184, Lew in on Trusts, 45, 47, fith ed. ; 21st ed. 55, 53, 12th ed. 28 INTRODUCTORY CHAPTER. in chattels, has not been altered by the Judicature Acts (e), which in 1875 transferred the original jurisdiction of the old superior Courts of Common Law and Equity to the High Court of Justice, and made provision for the enforcement of equitable, as well as legal, rights in every branch of that Court, and in the Court of Appeal established at the same time (/). § 3. Of things in jtossessioyi and in action. Besides the division of chattels into chattels real and personal {g), another important distinction exists among personal things. Such things are said to be in possession or in action ; or they are called, in law French, choses in possession or choses in action {h). Choses in Choses in possession are moveable goods, of which possession. thtir owner has actual possession and enjoyment, and which he can deliver over to another upon a gift or sale ; tangible things, as cattle, clothes, furniture, or the like. They are things, which may be taken and carried away by a thief, so as to be the object of larceny at common law {i) ; or which may be seized and sold by the sheriff in execution of a judgment in a personal action {k). Such things in (e) Stats. 36 & 37 Vict. c. 60, WilUams, R. P. 4—6, 30, 31, s. 16 ; 37 & 38 \'ict. c. 83 ; 38 & ' 21st cd. In 22 Ass. pi. 37, a 39 Vict. c. 77. distinction is taken between \\ hat (/) See Williams, R. P. 167, is in possession of a villein (as a 21st ed. ; Joseph v. Lyons, 1.5 rent of which he is seised) and Q. B. D. 280 ; Hallas v. Robin- what remains in action to the son, ib. 288. villein, as if obligation of debt be ((j) Ante, p. 5. made to him. The term chose in (h) The use of the term chose action is used by Paston, J., in 171 action is not very early ; al- Y. B. 9 Hen. VI. 6, pi. 64 ; and though the difference between as a ■well-known term by Sir R. corporeal things in theii' owner's Brooke (C. J. of C. B., 1544 ; ob. possession and mere rights of 1558 ; Foss, Judges, v. 360), in action is well marked in our his Abridgment (tit. Chose in earliest text-writers ; Bract, fo. action). See, too, Co. Litt. 117 a, 10 b, 61, 407 b ; Fleta, fo. 125, 351 b ; 10 Rep. 48 a. 126, 183 ; Britt. hv. i. ch. 29, § 2, (i) Ante, pp. 8, 9. and hv. ii. ch. 2, §§ 1, 10 ; see (k) Ante, p. 19. action. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY 29 early times formed the bulk of a man's chattels. The term choses in action appears to have been Choses in applied to things, to recover or realize which, if wrongfully withheld, an action must have been brought ; things, in respect of which a man had no actual possession or enjoyment, but a mere right enforceable by action (Z). The most important per- sonal things recoverable by action only were money due from another, the benefit of a contract and compensation for a wrong (m) ; and these have always been the most prominent choses in action, though not the only things to which the term has been applied {n). Choses in action, being valuable (/) Tcrmcs dc la Lej', chose in 290; 11 App. Cas. 4215; Re action; 2 Black. Comm. 389, Thynne, Idll, I Ch. 2H2. 396, 397 ; Colonial Bank v. (m) See Co. Litt. 288 b, 289 a ; Whinney, 30 Ch. D. 261, 285— ante, pp. 4, 5, 16, n. [l), 19. (n) See L. Q. R. x. 143, xi. 223. In Y. B. 9 Hen. VI. 6, pi. 64, Paston J. .seems to have .suggested that if the owner of a box of deeds bailed it to another, and the other delivered it over to a svib-hailec, the box would be a chose in action to the first bailee. Brooke's abridgment of this case [Chose in action, 13) led Lord Justice Fry to state (30 Ch. D. 288) that in 9 Hen. VI. the property in deeds in the hands of a third person was considered as a chose in action. On reference to the Year Book, it appears that Paston' s dictum does not warrant this statement, and that he clearly recognized that if the owner of chattels bailed them, he \\ould retain the property in them. It is true that at one time a man deprived of his goods bj^ a trespasser was considered to retain a mere right of action against the trespasser personally : but at that time the former was held to lose all right to the goods, so they cannot have been his things in action ; ante, p. 12. It is submitted that in modern law, at all events, the owner of a corporeal chattel, which is in another person's possession, either through bailment or wrongful taking, has not a mere chose in action : the thing is not merely in actioii to him. It has always been admitted that a Ijailor retains the jiroperty in the chattels bailed ; ante, p. 11, and nn. (/«), (A). As we have seen (ante, p. 14), it also came to be alkn\ed that, \\here goods were taken by a trespasser, the owner retained the right of property in them, which right he might assert by re-taking the goods, wherever found. Also, according to Littleton, lif 1 have a cause of action in detinue against another, and I release to him all personal actions, I may nevertheless retake my goods from him, because no right of the goods is released to him ; Litt. s. 4'.>S. Could this be so if the thing \\ere merely in action to the relea.sor V Again in Sir T. Palmer n case, 5 Rep. 24 b. Sir T. P., seised in fee of a great w ood, sold to ( '. and his assigns 600 cords of wood, to l)c taken by the assignment of Sir T. P. ; and it wa,s held that C. had an interest ^^■hich he might assign over, and not a thing in action, or a possibility only ; for it was resolved that if Sir T. P. did not as.sign them to C. on request, C. might take them without assignment. 30 INTRODUCTORY CHAPTER. things, are now included in the general term jJfoperty as well as tangible goods. But when mere rights of action are reckoned as property, they are simply regarded objectively as sources of profit, and no heed is paid to the essential difference between them and rights of ownership in possession (o). In early times, however, the true nature of rights of action was more prominent, and they were particularly distinguished from tangible property in being incapable of transfer ; for by the common law none might assign over a chose in action, save the king (jj). It has been said that this rule was made to avoid " the multiplying of contentions and suits " (q). But it appears, in truth, to have been a consequence of the early view of contract, viz. — that the obliga- tion imposed on a man by his contract, was to B}- the common la^^^, too, a husband became absolutely entitled to his wife's personal things in possession on marraige, but for her choses in action they must, as a rule, have jointly sued ; Co. Litt. 351 b. Now if the goods of a single woman were ^^■^ongfull^• dis- trained or taken from her, or bailed bj- her, and she afte^^^a^ds married, her husband alone could sue in replevin or detinue, or release her right to the goods ; Fitz. Abr. Replevin, 43 ; Moore, 25, pi. S5 ; Bac. Abr. Detinue (A). In Franklin v. Seate, 13 M. & W. 481, more- over, it was contended that the owner of a pawned chattel ha, bankruptcy; but the principle loth ed. remains unaltered with regard (s) 1 Wms. Saund. 216 a, note to injuries to the j)erson or repu- (1). The king might assign a tation ; see }wxt, Pt. II. Ch. I. chose in action certain, as a debt (t) iJract. fo. 10 b ; Britt. liv. due to him, but not an uncertain ii. ch. 2, §§ 1, 10. thing, as damages for a trespass 32 INTRODUCTORY CHAPTER. or a wrong (w). But when two persons are joined together in law by the link of an obligation arising from contract or wrong, what is created between them is a personal relation, which is, strictly speaking, incapable of assignment. For the duty of the one to the other can never be transferred : though it may be extinguished and replaced by a similar duty of the former to a third party. To make an assignment of a chose in action is therefore really to substitute a new duty to the assignee for the duty originally incurred (.r) ; and the problem was, how to effect this in the most convenient way. The desired result may obviously be attained with the consent of the person bound to the duty. The transfer intended may then be made upon the Novation. principle of novation, a term taken from Roman law and apphed therein to the extinction of an existing obligation by the creation of a new one in its place. Thus novation takes place when a duty of A. to pay a sum of money to B. is by the consent of all parties replaced by a duty of A. to pay the same sum to C. ; the new obligation of A. to C. taking away the obligation of A. to B. (y/). The necessity of obtaining the consent of the person liable to the duty was however an obstacle in the way of the ready transfer of a claim by novation after the duty Novation by had arisen. But this obstacle was avoided when the consent given required consent was given in advance at the time in advance. -^ . n,i . ti r»i of the creation of the duty. Accordmgly we hnd that in early times a form of contract was contrived in certain cases, whereby the party undertaking the (m) Ante, pp. 4, 19 ; Bract, fo. 98 b, 99 a. (x) Ames, Harvard Law Re- view, iii. 337, 339 sq.. Select Essays in Anglo-American Legal History, iii. 580, 582, 583. [y) Novation equally takes place when a duty of A. to B. is by consent of all parties replaced by a duty of C. to B. ; Gai. II. §38, III."§§ 176, 177 ; Inst. III. 29, § 3, and notes, Moyle's ed. pp. 452, 453, 405 ; Bract, fo. 101 a ; Fairlie v. Denton, 8 B. & C. 395, 400 ; Perry v. National Provincial Bank of Eiiqland^ 1911, 1 Ch. 464. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY 33 stipulated duty expressly agreed to perform it in favour either of the person named in the contract or of any person to whom he might assign his claim (z). This principle of the transfer of a claim under a contract by the consent given in advance of the party bound received its most important develop- ment under the law merchant in the case of bills of exchange. Bills of exchange appear to have been BiHg of originally devised to meet the necessity arising in exchange. mercantile transactions of making or obtaining payments in a foreign country : but in modern times they have been freely applied and recognized in inland trade or business (a). The established form of a bill of exchange was a written order from one person to another, who owed him money or had funds at his disposal, to pay a certain sum of money on a given day to a third party named or to the bearer of the order. If the person so directed to pay signified his acceptance of the obligation, he became bound to pay the sum named, when due, to any bond fide holder of the bill, who should present it for payment (6). In this way, by the consent {z) 'i'he most notable example Review, iii. 338, Select Essaj's is that of a warranty by a feoffor in Anglo-American Legal His- in favour of the feoffee, his heirs, tory, iii. 581, 582. or assigns ; a contract which, (a) See 2 Lutw. 1585 ; Macau- before the statute of Quia Emp- lay's History of England, iv. 490 tores (18 Edw. I. c. 1), placed an —492 ; Cunningham, Growth of important part in the develop- English Industry and Commerce, mcnt of the right of alienation of vol. i. (Early and Middle Ages), fee-simple estates in land ; Wil- 194, 229, 230, 326, 379 ; vol. ii. liams,R. P. 71,72, 21st cd. The (Modern Times), 222—224, 394 same principle was applied in — 390. grants of annuities to a man and (b) It will 1)0 observed that, his assigns, antl in covenants to a\ here the person on whom a bill enfeoff a man, his heirs or assigns. was drawn owed money to the See as to warranties, Bracton's drawer, the bill operated as an Note Book, case 804 ; Bract, fo. assignment of that debt pro tanto 37 b, 381 b, 390, 391 ; Britt. liv. to the payee of the bill. This ii. ch. 8, § 8 ; Fitz. Abr. Gar- assignment, however, took effect ranto, 93 ; as to annuities, Britt. by a true novation, the drawee liv. ii. ch. 10, § 3 ; Co. Litt. 144, not being liable on the bill n. (1); as to covenants, Brae- without his acceptance of it; ton's Note Book, case 804 ; Y. B. Marquard, Tractatus de Jure 21 Edw. I. 137 ; F. N. B. 145 ; Mercatorum, 1. 2, c. 12, §§ 10, 28, and see Ames, Harvard Law 33 ; 1. 3, c. 9, §§ 57 sq. W.P.P. 3 34 INTRODUCTORY CHAPTER. Promissory notes. expressed in advance of the acceptor of the bill, the right to demand payment of the money secured thereby might pass to any one, who in good faith obtained possession of the bill ; and so the right to sue on the contract made by the bill became trans- ferable by the mere delivery of the bill. This method of assignment of the right to sue on a bill of exchange was recognized by mercantile tribunals all over Europe (c). And in modern times, the custom of merchants with regard to bills of exchange was recognized and embodied in the English common law ; so that the right to sue on bills of exchange payable to a certain person, or to his order, became transferable by indorsement of the payee's name on the bill, and delivery of the bill, although the bill were not expressly made payable to bearer {(I). By a statute of Anne (e), promissory notes, which are written promises to pay a certain sum at a given time to a person named, or to his order, or to the bearer, were made assignable in the same manner as bills of exchange. Assignment of chose in action by means of power of attorney. The principle of the assignment of a duty by the consent expressed in advance of the party bound was not, however, appHed to things in action generally. With regard to these, an indirect method of assign- ment was devised in the shape of a letter of attorney from the person entitled to a right of action, empowering another to sue upon or realize the claim in the name of the person so entitled, but to retain the proceeds for his own use. The transfer of a (c) See Jenks, Early History of Negotiable Instruments, L. Q. R., ix. p. 70 ; Maitland, Select Pleas in Manorial Courts (Selden Society), 132, 153 ; Smith's Mer- cantile Law, Introd. pp. Ixx. n., Ixxxi. 11th ed. {d) See Cro. Jac. 6, 306 ; Cro. Car. 301 ; Carth. 3, 82, 83, 129, 403 ; Grant v. Vaughan, 3 Burr, 1516 ; Smith v, Kendall, 6 T. R. 123 ; Bac. Abr. Merchant (M) ; 2 Black. Comm. 466, 468. (e) Stats. 3 & 4 Anne, c. 8 (c. 9 in Ruff head) ; made perpetual by 7 Anne, c. 25, s. 3 ; and re- pealed by 45 & 46 Vict. c. 61, codifying the law as to bills of exchange and promissory notes. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY 35 chose in action by means of a power of attorney for the transferee to sue in the transferor's name for his own use appears to have been practised at a very early period (/). These means of assignment proved so effectual that during a considerable interval it was thought that they unduly stimulated litigation, and that to take advantage of them fell within the offence of maintenance, or maintaining another person in his suit (g). On this ground such powers of attorney were treated as void from the beginning of the fifteenth until nearly the end of the seventeenth century, unless given in favour of a creditor of the transferring party (h). In modern times, however, the objection of maintenance was overruled, and it was established that a chose in action was lawfully transferable at common law by means of a power of attorney enabling the transferee to sue in the name of the transferor (i). Besides legal choses in action, or things recover- Equitable choses in (/) Ames, Harvard Law Re- fessor Ames says, " The doctrine action, view, iii. 340, and n., Select of maintenance was pushed so Essays in Anglo-American Legal far that it came to be regarded|as Histor\-, iii. 583, 584 and n., the real reason for the inaliena- citing an example of a.d. 130!) bility of choses in action, and from Riley's iMemorials of Lou- the notion became current that don, p. 68 ; P. & M. Hist. Eng. no contracts were assignable, not Law, ii. 223 — 225. See A\'est, even covenants or poHcies of Symbol. § 521, for a full form of assurance and the like, although letter of attorney. expressly made payable to the ig) Prohibited by stats. 1 Edw. obligee and his assigns. Even in. St. 2, c. 14 ; 1 Ric. IL c. 14 ; bills and notes were thought 7 Ric. II. c. 15; and 32 Hen. solely to derive their assignability VIII. c. 9. from the custom of merchants. (h) Ames, Harvard Law Re- Warranties, being obviously not view, iii. 341, Select Essays in open to the objection of main- Anglo-American Legal History, tenance, continued a.ssignable, iii. 584 and n., citing Y. B. 9 Hen. and .so did annuities, although \I. 04, pi. 17;, 34 Hen. VI. 30, not without question. Perk, pi. 15 ; 37 Hen. VI. 13, pi. 3 ; 15 s. 101." Hen. VII. 2, pi. 3 ; Penson v. (i) 1 Lilly's Abr. 125 ; Deering Ilickbed, 4 Leon. 99 ; CYo. Eliz. v. Carringdon, ib. 124 ; Shep. 170; South V. March, 3 Leon. Touch. 240; 2 Black. Comra. 234 ; Harvey v. Batcman, Noy, 442 ; Winch v. Keek;/, 1 T. R. 52 ; Barrow v. Gray, Cro. Eliz. 619 ; Gerard v. Lewis, L. R. 2 551 ; Loder v. Cheslyn, 1 Sid. C. P. 305, 309 ; Fitzroy v. Cave, 212 ; Freem. C. C. 145, n. Pro- 1905, 2 K. B. 364. 3—2 36 INTRODUCTORY CHAPTER. able by action at law, there existed, after the development of the equitable jurisdiction of the Court of Chancery (/;:'), equitable choses in action or things recoverable only by suit in equity. Of these a pecuniary legacy is a familiar instance ; for which, if the executor withheld payment, the legatee could maintain no action at law (?), but was obliged to bring a suit in equity (w). By the rules of modern equity, which began to be formulated after the restoration of Charles II. (n), equitable choses in action were directly assignable from one person to another, and the assignee was enabled to sue in his own name (o). In equity, moreover, all choses in action were regarded as assignable, so that if a direct assignment were made of a legal chose in action, the assignee became entitled thereto in equity (p) ; though he could only realize the same at law by suing in the assignor's name (q). (k) See Williams, R. P. Pt. I. sion ; stats. 36 & 37 Vict. c. 66, Ch. VII. sect. 1, 21.st ed. ss. 16, 34 ; 37 & 38 Vict. c. 83. (?) Decks V. Strutt, 5 T. R. Since 1865 legacies payable out 690 ; Braiihu-aite v. Skinner, 5 of estates not exceeding 500?. in M. & W. 313. value have been recoverable in (m) Before 1858, a legacy was the county courts ; stat. 51 & 52 also recoverable in the ccclesias- Vict. c. 43, s. 67, replacing 28 & tical courts; but this remedy, 29 Vict. c. 99, s. 1. which appears to have been the (n) Williams, R. P. 166, 21st only one in early times, Avas ed. seldom used after the establish- (o) Squib v. Wyn, 1 P. W. 378, mentof the equitable jurisdiction 381; Gilb. Forum Romanum, in this behalf, the remedy in 173 ; see Bac. Tr. 312. equity being more effectual. See (p) Perryer v. Halifax, Rep. Matthews v. Newby, 1 Vern. 133 ; t. Finch, 299 ; Peters v. Soame, Howard v. Howard, ib. 134 ; 2 Vern. 428 ; Crouch v. Martin, Grignion v. Grignion, 1 Hagg. ib. 595 ; Row v. Dawson, 1 Ves. E. R. 535; Bac. Abr. Legacy Sen. 331. (M.) ; 1 Story, Eq. Jur. §§ 536— (q) Heath v. Hall, 4 Taunt. 542, 590 ; stat. 20 & 21 Vict. 326, 328. Such an assignment c. 77, s. 23. In 1875 the equit- authorized the assignee to sue at able jurisdiction of the Court of law in the assignor's name, and Chancery in respect of legacies the latter would be restrained in was transferred to the High equity from obstructing the exer- Court of Justice, and its exercise cise of this right ; Hammond v. assigned to the Chancery Divi- Messenger, 9 Sim. 327, 332 ; OF THE OBJECTS AND NATURE OP PERSONAL PROPERTY 37 But although the mere assignment of a chose in Notice of action, either at law by letter of attorney or in equity ora^chose in by direct transfer, was a suflficient relinquishment of ••action, the assignor's right in favour of the assignee (/•), a further step was necessary in order to secure effec- tively the necessary substitution of a new duty to the assignee. This was to give notice of the assign- ment to the person liable to the duty. For if, before receipt of any such notice, the person liable performed his duty to the person, to whom he was originally bound, he would be discharged from his obligation, notwithstanding that the benefit thereof had been assigned to another. But after he had received notice of assignment of the claim upon him, he was bound to perform his duty, or what remained of it, to the assignee (.5). Thus if the claim were for paj^ment of money and the person liable, notwithstanding that he had had notice of an assignment, persisted in paying the assignor, he was not discharged from his duty, but remained liable to pay over again to the assignee (t). The assignment of a chose in action was moreover subject to all equities existing between the person Mangles v. Dixon, 3 H. L. C. 702, for value ; Winch v. Krrlp)/, 1 726. And the assi<,'nment, if T. R. (il!) ; see 1 Wins. V. & T. made for valuable eoiisidciation, T.IH, T.V.), 2nd ed. would l)c eilectual in etjuity, (/) Jiurn v. VnrmUio, 4 My. & though made by parol onlv ; C'r. (iOO, 702 ; Jte Wai/s TrustK, Rodick V. (landell, 1 De (J. M. 2 l)e ({. .1. & S. Udf) ; Pickering v. & a. 7f)3, 777, 778 ; Jiircard v. Ilframmbr lit/. Co., L. R. .3 (i W Priichtml, 1 K. & ,). 277; ( ; Rubinson v. Neshitt, ih. veil v. (Iiirdncr, J) .lur. N. S. 2(i4 ; (lorringe v. Irwcll India 1220 ; Field v. Megan; L. R. Rubber Works, \U Ch. 1). 128 ; 4 C. P. ()()0. And even at law, Re Wallis, 1903, 1 K. B. 719. upon the assignment of a ehoso (s) Ashcomh's case, 1 Ch. Ca. in action, the authority to sue 232 ; Baldwin v. Billingdeji, 2 in the assignor's name was not \'ern. 232 ; Legh v. Legh, 1 li. & required to be given by deed, but P. 447 ; Norrinh v. Marshall, 5 might have been given by parol ; Madd. 475; Stock.s v. Dobso7i, Howell V. Mclvers, 4 T. R. (iiKt ; 4 De (J. M. & (i. 11 ; Yates v. Pickford v. Ewington, 4 Dowling, Terry, 1902, 1 K. R. 527. P. C. 453. It was held that the (<) Legh v. I-^egh, nbi sup. ; power to sue in the assignor's Jones v Farrell, 1 Do G. & J. name was irrevocable, if given 208. 38 INTRODUCTORY CHAPTER. liable and the assignor up to the time when the former received notice of the assignment (u) ; that is, the former might avail himself, as against the assignee seeking to enforce the claim, of every defence, by way of set-off or upon any other equit- able ground, which he would have had against the assignor, and which had accrued to him up to the time when he received notice of the assignment, but not after (x). Notice of the assignment of a chose in action was further necessary in order to complete the title of the assignee ; for if the same chose in action were assigned twice over, the claim preferred was that of the assignee, who first gave notice to the person liable of the assignment in his favour ; even though the assignment, under which he claimed, were subsequent, in point of time, to the other (y). Assignment of chose in action under statutory authority. From time to time various particular choses in action were made assignable by statute, the assignee being empowered to sue in his own name at law (z). But no legislation was directed towards the assign- ment of choses in action generally, until the Judica- (m) Mangles v. Dixon, 3 H. L. C. 702, 731 ; Graham v. Johnson, L. R. 8 Eq. 36, 43 ; Phipps V. Lovegrove, L. R. 10 Eq. 80, 88. (x) Cavendish v. Geaves, 24 Beav. 163 ; Stephens v. V enables, 30 Beav. 625 ; Watson v. Mid Wales By. Co., L. R. 2 C. P. 593 ; Christie v. Taunton d- Co., 1893, 2 Ch. 175 ; Turner v. Smitli 1901, 1 Ch. 213 ; Be Palmers, d-c, Co., 1904, 2 Ch. 741 ; Neiv- foundland Govt. v. Newfoundland By. Co., 13 App. Cas. 199, 210— 213. Cf. Stoddart v. Union Trust, Ld., 1912, 1 K. B. 181. iy) Dearie v. Hall, 3 Russ. 1 ; Ward V. Duncombe, 1893, A. C. 369 ; Marchant v. Morton, 1901, 2 K. B. 829; Be Lake, 1903, 1 K. B. 151. {z) For mstance, bail bonds by stat. 4 & 5 Anne, c. 2 (4 Anne, c. 16, in Ruffhcad), s. 20 ; reple- vin bonds by 11 Ceo. II. c. 19, s. 23 ; the contracts made by bills of lading by 18 & 19 Vict, c. Ill ; policies of life assurance by 30 & 31 Vict. c. 144 ; policies of marine insurance by 31 & 32 Vict. c. 86, now replaced by OEdw. VII. c. 41,ss. 50, 92. As to a bankrupt's choses in action, see 2 Black. Comm. 485 ; Bac. Abr. Bankrupt (F. I.) ; stats. 12 & 13 Vict. c. 106, s. 141 ; 32 & 33 Vict. c. 71, ss. 4, 15, 17, 22, 83, par. (7), 111 ; 46 & 47 Viet. c. 52, ss. 20, 21, 44, 50 (5), 54, 83, 168, ante, p. 31, n. (s). OF THE OBJECTS AND NATURE OP PERSONAL PROPERTY 39 ture Act of 1873. By that Act (a), any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual at law (subject to all equities which would have been entitled to priority over the right of the assignee if that Act had not passed (6)) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor. Upon an assign- ment of a chose in action made in comphance with this enactment, the assignee is invested with a legal, as distinguished from an equitable, right to the thing assigned, and is entitled to sue therefor in his own name (c) : but it should be noted that the statute requires an absolute {d) assignment in (a) Stat. 3G & 37 Vict. c. G(3, 190 ; or although it be made on s. 25, sub-s. 6. The commence- trust for the assignor himself ; ment of this Act was postponed Comfort v. Belts, 1891, 1 Q. B. to the 1st Nov. 1875, by stat. 737 ; Fitzroy v. Cave, 1905, 2 37 & 38 Vict. c. 83. K. B. 3()4. But an assignment (h) Above, p. 37. which is merely conditional, or (c) Bead v. Brown, 22 Q. B. D. purports to give a charge only on 128. the chose in action, or is of an (d) It has been decided that undefined part thereof, is not an unconditional assignment of a within the Act ; Durham v. man's entire legal interest in his liobertson, 1898, 1 Q. B. 705 ; chose in action may be an abso- Mercantile Bank of London v. lute assignment (not purporting Evans, 1899, 2 Q. B. 013 ; Jones to be by way of charge only) v. Humphreys, 1902, 1 K. B. 10. within the meaning of the Act, It is a question whether a legal notwithstandmg that it be made assignment can be made under to secure the payment of money the Act of part of a debt ; but due from the assignor to the the better opuiion apjiears to bo assignee and bo subject to a that it cannot ; Forster v. Baker, proviso for redemption on such 1910, 2 K. B. 630 ; contra, payment ; Htujhes v. Pump Skipper v. Tucker, ib. 030. House Hotel Co., 1902, 2 K. B. 40 INTRODUCTORY CHAPTER. writing (e) under the hand of the assignor, and notice thereof in writing ; without which the assignment will only take effect in equity according to the previous law (/). The other legal choses in action mentioned in the Act, besides debts, appear to include all those, of which the indirect assignment under the previous law, by means of a power to sue in the assignor's name (gr), was free from all objection of maintenance {h). The Act moreover makes no change in the nature of the assignment of a chose in action (i), the old rule, that it shall be subject to all equities between the person liable and the assignor, being expressly preserved {k). Modern per- sonal estate. Mortgages. Bills, notes, and cheques Government annuities oi stock. In modern times several species of property have sprung up which were unknown to the early common law. Mortgages became common when the lending of money at interest had been recognized as legal, and the modern equitable jurisdiction over the redemption of mortgages was firmly established {I). The development of modern commerce and banking has sent bills of exchange, bank-notes (m), and latterly cheques into general circulation. The funding of the National Debt, after the revolution of 1688, first afforded means for the permanent investment of capital in Government annuities or stock ; in which the investor looks rather to the enjoyment of the perpetual annuity secured to him (e) Which must be stamped as an assignment ; Buck v. liohson, 3 Q. B. D. 686 ; see stat. 54 & 55 Vict. c. 39, ss. 54 sq., 86 sq., and First Schedule. (/) Ante, p. 36, and n. [q) ; Willimn Brandt's Soris db Co. v. Dunlop Rubber Co., Ld., 1905, A. C. 454, 461, 462. (g) Ante, pp. 34, 35. (h) See Torkington v. Magee, 1902, 2 K. B. 427, reversed on the facts, 1903, 1KB. 644; Dawson v. Great Northern db City Ry. Co., 1905, 1 K. B. 260, 270 ; Dejries v. Milne, 1913, 1 Ch. 98; Glegg v. Bromley, 1912, 3 K. B. 474; see post, Pt. II. Ch. I. II. {i) Ante, p. 32. (k) See Young v. Kitchin, 3 Ex. D. 127 ; Brice v. Bannister, 3 Q. B. D. 569, 578; Walker v. Bradford Old Bank, 12 Q. B. D. 511 ; above, p. 38, n. (x). (I) See WilUams, R. P. 545 and n. (e), 546—549, 21st ed. (m) Ante, pp. 25, 33. OF THE OBJECTS AND NATURE OF PERSONAL PROPERTY 41 under Government guarantee, by way of interest, than to the repayment of his capital (n). Com- panies of merchants putting their money into joint stock for the purposes of a trading or mercantile adventure were occasionally incorporated by royal charter in the seventeenth century, or even earlier (o). But the prominence of shares in joint-stock com- shares in panics as a form of property belongs to the last joint-stock . i-i •! 11 companies. century, m which so many railway and other com- panies were constituted by special Act of Parliament, and which witnessed, since 1862, the incorporation of countless companies, for pursuing all kinds of schemes of profit, under the Companies Acts (p). Again, the borrowings of companies have given rise to debentures and debenture stock, which Dp))cnturc9. sometimes merely secure a debt against the company, but more frequently give a charge on the company's property as well. Whilst loans offered for sub- scription by foreign and colonial governments, and municipal authorities of every description have Stock produced a host of other securities — taking the form .^^^irft/ef sometimes of written instruments (/) As to the finder's position their owner being unknown ; with regard to the owner, and the wreck of the sea come to land ; cases in which he may be guilty jetsam, goods east into the sea, of larceny ia appropriating the which sink and remain under thing found to his own use, see water ; flotsam, like goods, which Bac. Abr. Trover (B.) ; Pollock float ; and ligan, goods sunk in and Wright on Possession, 171 — the sea, but tied to a cork or 187. Here it should be men- buoy. The right to have any of tioned that certam things, of these things may be and fre- which possession has been lost or quently is vested in a subject, as I I OP OWNERSHIP EST POSSESSION. 51 by any stranger, he will be entitled to use any of the owner's remedies (z) for the recovery of the goods or their value (a). And the stranger will not be enabled to set up the owner's right (jus tertii) as a defence to the action, unless he show that he acted with the owner's authority (6). The requisites of every original taking possession of goods, whether as occupant, finder, or trespasser, are the same. In each case, the sole (c) physical control of the thing must be effectively gained, with the intent to exclude the world at large : otherwise possession will not have been acquired (d). And neither an intending occupant, nor a finder or trespasser has any title to sue for the recovery of goods, of which he has not actually taken possession (e). Whether, in any particular case of alleged taking possession of goods, there has been the required physical control coupled a franchise, by grant or prescrip- tion. See Co. Litt. 114 b ; Sir Henry Constable's case, 5 Rep. 106 ; 1 Black. Comm. 291—299 ; Williams on Commons, 271, 280 —292 ; A.-G. v. Moore, 1893, 1 Ch. G7G ; A.-G. v. Trustees of British Museum, 190.3, 2 Ch. 598. (z) Ante, pp. 12—21. (a) See as to a finder. Armory V. Ddamirie, 1 Str. 505 ; (). W. Holmes, Common Law, 237 ; as to a taker, Y. B. 13 Hen. VII. 10, pi. II. ; Bro. Abr. Tresp. 433 ; Y. B. 12 Hen. VIII. 10 b. ; Basset v. Maynard, Cro. Eliz. 819; Woadson v. Nawton, 2 Str. 777 ; Rackham v. Jesup, 3 WiLs. 332. (b) Newnkam v. Stevenson, 10 C. B. 713 ; Jeffries v. Great Western By. Co., 5 E. & B. 802 ; Bourne v. Fosbrooke, 18 C. B. N. S. 515 ; The Winkfield, 1902, P. 42, 54 sq. If, however, a finder or taker of goods be law- fully deprived of the possession of them (as by lawful seizure of the goods as stolen ; see 2 Hale, P. C. 113; stats. 24 & 25 Vict, c. 96, 8. 103; 34 & 35 Vict. c. 112, R. 16 ; Archbold's Justice of the Peace, ii. 1812, 7th ed.), he cannot recover them from a stranger to whose hands the3' may afterwards come ; Buckley V. Gross, 3 B. & S. 5(56. As to the cases in which jus tertii is available as a defence to an action to recover goods, see Leake v. Loveday, 4 Man. & tJr. 972 ; Pollock and Wright on Possession, 91, 92, 147, 148. (c) See Pollock and Wright on Possession, 21. (d) Holmes, Common Law, 216 sq; and see Kynoch, Ld. v. Rowlands, 1«)12, 1 Ch. 527. (e) Thus in Young v. Ilichens, 6 Q. B. 606, the plaintiff, while fishing for pilchartls, hail nearly encompassed the lisli with a net ; but the defendant, by rowing his boat to the oi)cning, disturbeil the fish and prevented their cap- ture. The plaintiff brought tres- pass for disturbing and taking fish in his possession : but it w as held that he could not recover, as he never hful possession of the fish. 4—2 52 OF CHOSES IN POSSESSION. with the necessary intent, in a question of fact to be determined with regard to all the circum- stances (/). When possession of goods has been once acquired, it is not necessary, in order to retain it, that the effective control, which must be used to gain possession originally, should continue to be actively exercised. Possession will not be lost so long as the power of resuming effective control remains. Thus, if I leave my house uninhabited, I still remain in possession of it, and of the goods in it ; and shall continue to be possessed of them, unless some other person break into my house and occupy it, or take my goods away (g). Ownership without possession. § 2. 0/ Ownership without Possession. 1. Having thus briefly considered the acquisition of ownership and possession, and touched upon the position of an owner in possession, let us pass on to the cases in which the ownership of goods exists apart from their possession. The first instance of this which we will examine is where the owner of goods parts with their possession involuntarily ; as where he loses them or they are taken from him. The gradual establishment of the rights and remedies of an owner so deprived of possession has been already described {h). We have seen that he is held to retain the property in his goods, giving him the right to recover possession of them as against all the world ; a right which he may assert himself by peaceable retaking {i). The reader will also remember that, whilst the owner might ^maintain trespass or replevin against any one who forcibly (/) See Bridges v. Hawkes- worth, 15 Jur. 1079 ; Holmes, Common Law, 222—224 ; Pollock and Wright on Possession, 37 — 42 ; South Staffordshire Water Co. V. Shartnan, 1896, 2 Q. B. 44 ; Johnson v. Pickering, 1907, 2 K. B. 437, reversed, 1908, 1 K. B. 1. (f/) Holmes, Common Law, 210, 235 sq. ; Kynoch Ld. v. Roivlands, 1912, 1 Ch. 527. {h) Ante, pp. 6—21. (i) Ante, p. 14. OF OWNERSHIP WITHOUT POSSESSION. 53 took his goods out of his possession, he might bring detinue or trover, not only (if he chose {k) ) against an actual disturber of his possession, but also against any person who came into possession of the goods by any means and violated his right to possession of the goods by wrongfully withholding them from him (l). In modern times before the year 1833, trover, though for damages only, was found to be the most convenient remedy for an owner wrongfully deprived of his goods (m) ; and questions of the right to recover possession of goods were therefore most frequently determined in this action : although it was generally considered that detinue would lie equally with trover in such cases {n). Under the present practice it seems clear that any one entitled to recover possession of goods may, at his option, sue either for the return of the goods or their value, or else for damages for their wrongful conversion (o). At the same time it appears that the test of succeed- ing in such an action Avill be, whether the plaintiff have such a cause of action as would have enabled him to maintain trover under the old practice. It will therefore be convenient, in considering the remedy for goods wrongfully withheld, still to speak of the right to maintain trover ; although, as we have seen, the old strict forms of action are no longer used (p). Now, to maintain trover, the plaintiff must have shown a right in himself to the immediate possession of the goods, and a wrong- ful conversion (g) of them to the defendant's use. Conversion. (k) Bishop V. Montague, Cro. day v. Ilolqalr, L. R. 3 Ex. 299, Eliz. 824, Cro. Jac. 50. 302. (I) Ante, pp. 15—18. This (o) Ante, p. 21, and n. {t). must of course be taken subject (p) Ante, p 21. to the limitations mentioned, [q) As to what acts amount to ante, pp. 24 — 20. a conversion of chattels, so as to (m) Ante, p. 17, n. (6). frive rise to a liability in damages (h) 1 Lilly's Practical Kegister, to the owner, see Bae. Abr. 24, 2nd ed. ; Vin. Abr. Detinue Trover (B) ; lloUins v. Fowler, (B 9) ; Bac. Abr. Detinue, L. R. 7 H. L. 757 ; Barker v. Trover (A) ; 7 T. R. 12 ; llulli- Furlomj, 1891, 2 Ch. 172 j Con- 54 OF CHOSES IN POSSESSION. The conversion, it will be remembered, was the gist of the action ; and a mere refusal to deliver up the goods on demand was evidence of conver- sion (r). The owner of goods taken from him or lost has an immediate right to their possession ; for the property which remains in him is said to draAv with it the right to possession (s). And an action for the wrongful conversion of goods can only be maintained when the plaintiff has been in possession of the goods (f), or has such a property in them as draws to it the right to their possession {u). If the goods have been wrongfully converted by the def en - dant, the plaintiff will succeed in his action, if he should prove either way his own right to the imme- diate possession of the goods (x) ; if he should not prove such right he will fail (y). As the right to recover possession of goods is most usually enjoyed in respect of their ownership, the right to maintain trover is often stated to depend on the plaintiff's property in the goods {z) ; a right to possession of goods enjoyed in respect of a mere possession (with- out ownership) of them is also frequently spoken of as being a special kind of property therein (a). But while the use of such expressions serves to remind us how large a part of property is the right to recover possession (6), it must not mislead the solidnted Co. v. Curtis, 1892, 1 v. Evans, 6 M. & W. 36 ; Evans Q. B. 495 ; Union Credit Bank v. Nichol, 3 Man. & Cr. 614 ; V. Mersey Docks and Harbour Blades v. Iliggs, 11 H. L. C. 621. Board, 1899, 2 Q. B. 205. (y) Gordon v. Harper, 7 T. R. (r) Ante, p. 17; 2 Wms. 9; 4 R. R. 369; Ferguson v. Saund. 472 ; cf. Clayton v. Cristall, 5 Bing. 305 ; 30 R. R. Le Roy, 1911, 2 K. B. 1031. 604 ; Leake v. Loveday, 4 Man. (s) Hudson V Hudson, Latch, & Gr. 972 ; Bradley v. Copley, 1 214 ; 2 Wms. Saimd. 47 b. C. B. 685 ; Donald v. Suckling, (t) See Addison v. Bound, 4 L. R. 1 Q. B. 585 ; Lord v. Price, A. & E. 799 ; Brooke v. Mitchell, L. R. 9 Ex. 54. 6 Bing. N. C. 349. (s) 3 Black. Comm. 152, 153. (u) 2 Wms. Saund. 47 b — g. {a) See the cases cited ante, {x) Wilbraham v. Snow, 2 p. 48, n. (h) ; 2 Wms Saund. Saund. 47 ; Armory v. Delamirie, 47 a, b, d sq. ; Rogers v. Kennay, 1 Str. 505 ; Roberts v. W7jatt, 2 9 Q. B. 592. Taunt. 268 ; 11 R. R. 566 ; Legg (b) Ante, pp. 47, 48. J before prosecution ? OF OWNERSHIP WITHOUT POSSESSION. 55 student into thinldng that an action for the detention or conversion of chattels can be maintained on proof of mere ownership, without regard to the right to possession. Such is not the case. The action tries only the right to the immediate possession of the goods, and cannot be maintained by an owner, who has parted with the exclusive right to their posses- sion (c). And there is no action known to the Eng- lish law in which the right of property in chattels will be determined, apart from the right to their possession. It has been laid down that if goods be stolen or Can the otherwise feloniously obtained, the owner cannot ^^"er of 1 . • •! • c 1 1 1 stolen goods brnig any civil action for the goods or their value sue the thief against the felon, before he be prosecuted criminally ; for so should felonies be healed (d). But if the owner do bring a civil action before prosecution, it does not appear by what means the felon can raise this rule of law as a defence, or how the action can be hindered from proceeding (e). The owner may retake goods feloniously obtained from him : but it is a misdemeanor for him to receive them again upon agreement not to prosecute or to favour the offender (/). It has been already explained that if the finder Right of finder or (c) Gordon v. Harper, 7 T. R. charged a rule for a new trial U ; 4 R. R. 3G'J ; Donald v. iS kcI:- of an action of trover for a brooch ling, L. R. 1 Q. J}. 585 ; llalUdiiij obtained on tlit; ground that the V. Iloh/ate, L. R. 3 Ex. 2'.)*J. evis. hind, 4 B. & S. 782 ; Moore v. 275 ; 10 R. R. 181 ; lie Tiii/hr, Singer Manufacturing Co., 1904, Stileman and Underwood, 1891, 1 K. H. 820 ; Plasi/eoed Collieries 1 Ch. 590 ; Re DoiK/las, Nornuni. Co., Ld. v. Partridge. .Jones <{• Co. ) Elmore v. Stone, 1 Taunt. 458; 10 K R. 578; Castle v. Sworder, 6 H. & N. 828 ; Ben- jamin on Sale, 135, 2nd ed. ; 218, 5th ed. (q) See the cases cited, ante, p. 70, n. {h) ; and Be Bidgway, 15 Q. B. D. 447. I OF TRANSFERRING THE OWNERSHIP OF CHATTELS. 73 keep the goods as the donee's bailee for reward, could it be maintained that there was not an irre- vocable change of possession on the donor's part ? And if there was, the gift would appear to be per- fect (r). It seems too that an irrevocable change of possession might be estabhshed, where a donor remaining in possession of the goods given has never- theless assented to the exercise by the donee of acts of ownership over them (s). When goods are in the possession of a bailee, it GUt to bailee is held that there may be a valid gift of them from possessor. the owner to the bailee by mere word of mouth, expressing an intention of present gift (t), coupled with that change of possession which takes place, when the bailee, with the donor's consent, ceases to hold the goods as bailee and begins to hold them for his own exclusive use as owner (u). A gift may be made in the same way from the owner of goods to a finder or wrongful taker, in whose possession the goods remain {x). When goods are in the custody of a simple bailee. Constructive such as a wharfinger or carrier, the constructive „oodrarrin° possession of the bailor may be transferred to a third the custody person by the agreement of all parties that the goods bailee™^ ^ shall be held for the transferee. But the rule is that there can be no legal dehvery of the goods from the bailor to a third person without the assent (r) If a horse were given, with Stovrld v. Hughes, 14 East, 308 ; an agreement that the donor 12 R. R. 523. should keep the animal for the (t) Promise of future gift will donee, charging for his standing not do ; Shower v. Pilck, 4 Ex. and keep, surelj- the gift would 478. 1)0 complete ; see Elmore v. (u) Winter v. Winter, 9 W. R. Stone, 1 Taunt. 458. 747 ; Kilpin v. Rathy, 1892, 1 (s) Take the case of a sale of Q. 13. 582 ; Cain v. Moon, 189G, the goods by the donee (see 2 Q. J3. 283. Chaplin v. Rogers, 1 East, 192 ; (x) Shepp. Toiich. Preston's (5 R. R. 249), or of his marking ed. 240, 241. timber with his initials, as in 74 OF CHOSES IN POSSESSION. of the bailee ; and the constructive possession of the bailor is accordingly not transferred until the bailee has consented to hold the goods for the transferee (y). But when goods are at sea, the dehvery of the bill of lading, after its indorsement, is equivalent to delivery of the goods themselves ; for it is not possible in this case to make any nearer approach to an actual delivery (z). It seems 5^ on principle, that a gift of goods in the possession of a bailee for the donor will be complete when the bailee agrees to hold them for the donee, but not before ; and that a gift of goods at sea will be com- plete on delivery of the bill of lading (a). Loan for consumption. 2. On a loan for consumption {mutuum in Roman law), the ownership of the chattel lent passes to the borrower on dehvery to him of possession thereof in pursuance of the contract. Thus, if I borrow a bottle of wine to drink or money to spend, I become the owner of the wine or coins immediately upon dehvery of the same into my possession ; when the (tj) Zwinger v. Samuda, 7 Taunt. 265; 18 R. R. 476; Lucas V. Dorrien, ib. 278 ; Brijans v. Nix, 4 M. & W. 775, 791 ; Farina v. Home, 16 M. & W. 118; M'-Ewan v. Smith, 2 H. L. C. 309 ; stat. 56 & 57 Vict. c. 71, s. 29, sub-is. 3 ; Re Hamil- ton, Young & Co., 1905, 2 K. B. 772, 786, 789, 790. It appears from these authori- ties that, at common law, the bailor's constructive possession is not transferred merely by his handing over an order for deli- very of the goods. But, as we shall presently see, this rule is now modified by the Factors Act, 1889. {z) Benjamin on Sale, 673, 2nd ed. ; 845, 5th ed. ; Barber v. Meyer stein, L. R. 4 H. L. 317 ; Sanders v. Maclean, 11 Q. B. D. 327, 341 ; Burdick v. Sewell, 10 App. Cas. 74, 82, 83, 95, 96. (a) It has been the custom to draw bills of lading in triplicate. The property in goods at sea passes to the person to whom an indorsement and delivery of any one part of a bill of lading, drawn in triplicate, is first made with intent to pass the property ; Barber v. Meyerstein, L. R. 4 H. L. 317 ; Sanders v. Maclean, 11 Q. B. D. 327, 334, 335, 341. But the shipowner, or any person standmg in his place, is justified in delivering the goods on arrival to the holder of any one part of a bill of lading, drawn in the usual form, provided that the delivery be made in good faith and with- out notice or knowledge of any assignment of another part of the bill of lading ; Glyn, Mills & Co. V. East and West India Dock Co., 7 App. Cas. 591. OF TRANSFERRING THE OWNERSHIP OF CHATTELS. 75 lender parts with all property in the things lent and has nothing but the benefit of my obligation to return to him the same quantity of wine or sum of money (h). 3. The next method of alienating chattels personal Alienation is by deed. A grant of chattels personal by deed ^ ®^ " is irrevocable on the part of the grantor though made without any valuable consideration and at once transfers the property in the goods to the grantee (c). For the formality of a deed affords indisputable evidence of an intention of gift {d). And although in early times every gift of chattels, made with or mthout deed, was void unless perfected by delivery of possession (e), it was afterwards established, that a gift of chattels by deed is complete without any delivery of the goods (/). But under the Bills of Sale Act, 1878 (g), an absolute assign- ment of personal chattels by deed, not followed by delivery of possession of the chattels within seven (/)) Bract, fo. 99 a, 102 b ; the sale does not exceed 5001. L. Q. R. xi. 228. and at double that rate where it ((■) Y. R. 7 Ed. IV., fo. 20, does (except in the case of a con- pi. 21 ; 3 Rep. 26 b, 27 a ; 2 Man. veyanco or transfer of any stock & (Jr. (>91, n. ; Martindnle v. or marketable security, where Booth, 3 B. & Ad. 498 ; Carr v. the rate remains one half per Biirdis.% 1 C. M. & R. 443, 782, cent.). ; sec stats. 10 Edw. VII., 788 ; 1 C. B. 381, n. ; Parke, B., c. 8, ss. 73, 74, amending 54 & 5.5 Florif V. Denny, 7 Ex. 583 ; 31 Vict. c. 39, ss. 1, 14. 54—61, and Ch. D. 286. Voluntary convey- First Schedule ; 1 Wms. V. & P. ances of any property by deed 397, 398 and notes [q), (r), 696 sq., executed on or after the 29th 2nd ed. ; Williams, R. P. 156, April, 1910, are chargeable with n. (d), 615, n. (;;), 21st cd. the like stamp duty as convey- {d) >See Bract, fo. 100 b ; ances on sale, with the substitu- Rhej). Touch, by Preston, 224 ; tion of the value of the property Holmes on the Common Law, conveyed for the amount or 272, 273. value of the consideration for (e) Ante,, p. 69. the sale ; and the stamp must (/) Cochrane v. Moore, 25 be adjudicated. Voluntary con- Q. B. 1). 57, 64^ — 67, 73. vcyances by deed executed () is a contract Sale and whereby the seller transfers or agrees to transfer the agreement property in goods to the buyer for a money consideration, to sell, called the price. There may be a contract of sale between one part owner and another. (2.) A contract of sale may be absolute or conditional. (3.) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale ; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4.) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. Sect. 16. — Where there is a contract for the sale of Gooda must unascertained goods (q) no property in the goods is be ascer- tained. (m) Williams, V. & P. i. 5U1 fiq.; ii. 1036, 1048, lOGl, 2ad ed. (n) Benjamin on Sales, 227 sq., 2nd ed. ; 310, 5th ed., stat. 56 & 57 Vict. 0. 71, ss. 16, 17, below. (o) Stat. 56 & 57 Vict. c. 71. (p) In this act " goods " in- clude all chattels perse aal other than things in action and money ; sect. 62. (g) As of an article to be manu- factured, or of a certain quantity of goods in general {e.g., 10 tons of tiax), without a specitic identi- fication of them. See Atkinson V. Bdl, 8 B. & C. 277 ; 32 R. R. 382; Wilkina v. Bromhead, 6 78 OF CHOSES IN POSSESSION Property passes when intended to pass. Rules for ascertaining intention. transferred to the buyer unless and until tlie goods are ascertained. Sect. 17. — (1.) Where there is a contract for the sale of specific or ascertained goods (r), the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred, (s) (2.) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case. Sect. 18. — Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Rule 1.^ — ^ Where there is an unconditional contract for the sale of specific goods, in a deliverable state (t), the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of deHvery, or both, be postponed (u). Rule 2. — Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliver- able state, the property does not pass until such thing be done, and the buyer has notice thereof. Rule 3. — Where there is a contract for the sale of specific goods in a deUverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascer- taining the price, the property does not pass until such act or thing be done, and the buyer has notice thereof. Rule 4. — When goods are dehvered to the buyer on Man. & Gr. 963 ; Lee v. Griffin, 1 B. & S. 272 ; Busic v. Davies, 2 M. & S. 397; 15 R. R. 288; Shipley v. Davis, 5 Taunt. 617. (r) I.e., goods identified and agreed upon at the time a con- tract of sale is made ; sect. 62. (s) See VarleyY. IFAip;), 1900, 1 Q. B. 513. (t) I.e., in such a state that the buyer would under the con- tract be bound to take delivery of them ; sect. 62. (m) This rule codifies the modern law of sale laid down in Simmons v. Swift, 5 B. & C. 857, 862 ; 29 R. R. 438 ; Tarling v. Baxter, 6 B. & 0. 360 ; 30 R. R. 355 ; Dixon v. Yates, 5 B. & Ad. 313,340; 39R. R.489; Martin- dale V. Smith, 1 Q. B. 389 ; Gil- mour V. Supple, 11 Moo. P. C. 551, 566; Blackburn on Sale, 196, 197; 265, 266, 2nd ed. ; Benjamm on Sale, 227 — 234, 2nd ed. ; 310—314, 5th ed. It was formerly considered that no sale of goods passing the property therein could be made without payment of part of the price, unless the goods were delivered to the purchaser, or something were given in earnest of the bar- gain, or a day were fixed for delivery of the goods and pay- ment ; Shep. Touch. 224; Noy's Maxims, pp. 87—89; 2 Black. Comm. 447, 448. As to the early law of sale, see ante, p. 70, n. {e). OF TRANSFERRING THE OWNERSHIP OF CHATTELS. 79 approval or "on sale or return " or other similar terms the property therein passes to the buyer : — (a.) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction (v) : (b.) If he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Rule 5. — (1.) ^Vllerc there is a contract for the sale of unascertained (w) or future goods (.r) by description, and goods of that description and in a deUverable state are unconditionally appropriated to the contract, either by the seDer with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer (y). Such assent may be express or implied, and may be given either before or after the appropriation is made : (2.) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. Sect. 19. — (1.) \Vhere there is a contract for the sale of Reservation specific goods or where goods are subsequently appropriated of right of to the contract, the seller may, by the terms of the contract disposal, or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, not- withstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. (2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is inima facie deemed to reserve the right of disposal. (3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to (r) As pledging the goods, Kirkhnm v. AUenborough, 1897, 1 Q. B. 201 ; cf. Wciner v. Gill, 1900, 2 K. B. 57^. («/') See n. (7). p. 77, above. (x) I.e., goods to be manufac- tured or acquired by the seller after the making of the contract of sale ; sect. 5. (v) See Reid v. Mnchrth, 1904, A. C. 22.-}. 80 OF CHOSES IN POSSESSION. Formation of contract of sale. Requisites for the sale of goods of the value of lOZ. or upwards. return tlie bill of lading if he does not lionour the bill of exchange, and if he wrongfully retains the bUl of lading the property in the goods does not i^ass to him {z). The provisions above stated apply to sales of goods of any value. But the rules for the formation of a vaUd contract of sale (without which there cannot of course be any transfer of ownership) depend upon the value of the goods. Contracts for the sale of goods under the value of lOl. are governed by the common law rules for the formation of contract (a), and may be made by the mere consent of the parties however expressed, whether in writing, by word of mouth, or by their conduct (&). But in order to estabhsh a binding contract for the sale of goods of the value of lOl. or upwards, the requirements of the 4th section of the Sale of Goods Act, 1893 (c), must be satisfied. This section re-enacts, with slight alterations, the provisions {d) of the 17th section of the Statute of Frauds (e), as amended by Lord Tenterden's Act (/), and runs as follows : — Contract of Sect. 4. — (1.) A contract for the sale of any goods (g) sale for lOZ. of the value of ten jjounds or upwards shaU not be enforce- and upwards, able by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give some- thing in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3.) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to (z) See Gahn v. PocketCs (). B. Q. B. 97. 442 ; Currie v. Anderson, 2 E. & (h) Benjamin on Sales, 140, E. 592, 600 ; Page v. Morgan, 15 2nd ed. ; 222, 5th ed. Q. B. D. 228. See, however, W.P.r. 6 Oti OF CHOSES IN POSSESSION. fore, be an actual transfer of the article sold, or some part thereof, by the seller, and an actual taking possession of it by the buyer (o). The possession of a simple bailee is, however, as we have seen (p), constructively the possession of the bailor. If therefore the vendor should change his character and become the bailee of the purchaser, there may be a sufficient actual receipt in law on the part of the purchaser, although the goods still remain in the possession of the vendor (g). So if any part of the goods be delivered to an agent of the buyer, or to a carrier, whether named by liim or not, this is a sufficient receipt by the buyer himself (r) ; and if the goods should be in the possession of a ware- houseman or wharfinger at the time of sale, the receipt by the purchaser of a delivery order, pro- vided it were coupled with the assent of the bailee, would be a sufficient receipt of the goods wdthin the statute (s). The wharfinger holds the goods as the agent of the vendor until he has agreed with the purchaser to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the purchaser, and the possession of such wharfinger is that of the purchaser ; and then only is there a constructive dehvery to him (t). The requisi- The requisitions of the statute, it will be observed, the statute are in the alternative. Either the buyer must are in the accept part of the goods sold, and actually receive the same, or he must give something in earnest or (o) Baldey v. Parker, 2 B. & C. 37, 41 ; 26 R. R. 260. {p) Ante, pp. 57, 58, 71. (q) Castle v. Sworder, 6 H. & N. 828 ; Benjamin on Sales, 132, 2nd ed. ; 216, 5th ed. (r) Dawes v. Peck, 8 T. R. 330 ; 4 R. R. 675 ; Hart v. Bush, 1 E., B. & E. 494, 498 ; Benjamin on Sales, 135, 2nd ed. ; 218, 5th ed. ; stat. 56 & 57 Vict. c. 71, s. 32, sub-s. 1. (s) Bentall v. Burn, 3 B. & C. 423 ; 27 R. R. 391 ; Pearson v. Dawson, 1 E., B. & E. 448. See ante, p. 73. (t) Farina v. Hotne, 16 M. & W. 119, 123 ; Benjamin on Sales, 132, 2nd ed. ; 216, 5th ed. ; Stat. 56 & 57 Vict. c. 71, s. 29, sub-s. 3- OF TRANSFERRING THE OWNERSHIP OF CHATTELS. 83 in part payment, or some note or memorandum in writing must be signed. In the absence of the two former alternatives, therefore, sales of goods of the value of lOl. or more must be estabhshed by the evidence of a note or memorandum in writing duly Memorandum signed (u). It is generally necessary, in order to ^" writing. satisfy the statute, that the terms of the contract should so appear from the writing as to enable the Court to understand what they were. But where there is no actual agreement as to price, the price need not appear in writing ; for the law implies a promise by the buyer to pay a reasonable price {x). If, however, a price be orally agreed on, it must be shown in writing in order to satisfy the statute (y). The only signature required by the statute is that of the party to be charged or his agent, the contract thus being enforceable at the option of the party who has not signed (z). But it is settled that the memorandum must show, by name or description, who is the party in whose favour the other is to be charged, or the contract cannot be enforced (a). An auctioneer is the agent for both parties at a public sale for the purpose of signing (b). Brokers, also, as a general rule, are agents for both parties for the same purpose, and their signature to the memorandum or note of agreement is binding on both principles, if the memorandum be otherwise (it) See Lee v. GrilJin, 1 Ji. & Electrical d;c. Co. v. Inland S. 272 ; Wilkinson v. Evans\ L. Revenue Commissioners, 1!)09, 2 R. 1 0. P. 407 ; Vandenhcn/h v. K. B. ()0(), as to cases where tlie Spooner, L. R. 1 Ex. 31(i ; Lucas jirice is paj^able by instalments. V. Dixon, 22 Q. B. D. 357. An (x) Stat. 56 & 57 Vict. c. 71, agreement, letter or mcmoran- s. 8. clum made for or relating to the (//) Benjamin on Sales, 184, sale of any goods, wares or 2nd cd. ; 2fi4, 5th ed. merchandise, is exempt from all (2) //;. 188, 2nd ed. ; 269, stamp duty ; .stat. 54 & 55 \'iit. 5th ed. c. 39, First Schedule, tit. Agree- (a) lb. 169, 171, 2nd ed. ; 248, ment. This exemption does not 249, 5th ed. apply to hire-purchase agree- (b) lb 201, 2nd ed. ; 280, ."ith ments ; stat. 7 Edw. VII., c. 13, cd. 7. See County of Durlmm G— 2 84 OF CHOSES IN POSSESSION. sufficient under the statute (c). So that an entry of a sale in a broker's book, signed by him, may be sufficient evidence of the contract (d), and so may a broker's bought and sold notes, or either of them, provided there be no variance between them (e). But one of the contracting parties to a sale cannot be the agent for the other for the purpose of sign- ing a memorandum of the bargain (/). When a contract for the sale of goods is made valid solely by a memorandum in writing under the Sale of Goods Act, the memorandum must be attested and registered in accordance with the Bills of Sale Act, 1878 (g), in order to give it complete validity with regard to goods remaining in the seller's apparent possession, as against his creditors and subsequent assignees (h) : but this is not necessary in the case of transfers of goods in the ordinary course of business of any trade or calhng (i). And contracts for the sale of goods, which are complete and valid without the aid of writing, are not affected by the provisions of the Bills of Sale Act (k). Effect of non- Contracts made for the sale of goods worth lOl. or with'concir- more without complying with the conditions of the tionsofsect. 4 4t,h section of the Sale of Goods Act (Z) are not void, Goods' Act. but only unenforceable (m). And where such con- (c) lb. 203 sq., 2nd ed. ; 283, 284, 5th ed. (d) Thompson v. Gardiner, 1 C. P. D. 777. (e) Goo7n v. Aflalo, 6 B. & C. 117 ; 30 R. R. 2()2 ; Sievewright V. Archibald, 17 Q. B. 115; Parton v. Crofts, 16 C. B. N. S. 11 ; Thompson v. Gardiner, 1 C. P. D. 777 ; see Benjamin on Sales, 205—224, 2nd ed. ; 285— 297, 5th ed. ; Blackburn on Sale, ch. V. pp. 78 sq., 2nd ed. (/) Farebrother v. Simmons, .5 B. & Aid. 333 ; 24 R. R. 399 ; Sharman v. Brandt, L. R. 6 Q. B. 720. (g) Stat. 41 & 42 Vict. c. 31 ; see ss. 4, 8, 10, and s. 10 of the amending Act of 1882, stated in Appendix A. ; Ca.sson v. Church- ley, 53 L. J. Q. B. 335. (h) Re Roberts, 36 Ch. D. 196 ; Hopkins v. Gudgeon, 1906, 1 K. B. 690. (i) Stat. 41 & 42 Vict. c. 31, s. 4. [k) North, Central Waggon Co. V. Manchester, Sheffield and Lin- colnshire Ry. Co., 35 Ch. D. 191 ; 13 App. Cas. 554 ; Ramsay v. Marqrett, 1894, 2 Q. B. 18. (I) Ante, p. 80. (m) See Leroux v. Brown, 12 C. B. 801 ; Bailey v. Siveeting, 9 C. B. N. S. 843, 859 ; Maddison OF TRANSFERRINO THE OWNERSHIP OF CHATTELS. 85 tracts are of a nature to pass the property in the goods sold (n), it seems that they will confer on the buyer a voidable title to the goods (o). The con- struction of the 4th section in this respect is impor- tant with reference to section 23 of the same Act enacting that, when the seller of goods has a voidable title thereto, but his title has not been avoided at the time of sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect in title (p). For example, if specific chattels worth lOZ. be sold by word of mouth, without delivery of possession, part payment or earnest, the buyer would appear to acquire the ownership of them until the contract be avoided. And under the 23rd section a resale of the goods by the buyer in the meantime to a second purchaser buying in good faith and without notice of the defect in title would deprive the original seller of the ownership, which would otherwise re-vest in him on the avoidance of the contract. If the agreement is not to be performed within When tho the space of one year from the making thereof, then, ^^o^.^to"be^ "^ however small be the value of the goods, no action performed can be brought upon it, unless the agreement, or ^p,^"" '^ some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. This is under another pro- vision of the Statute of Frauds (<7), and will be hereafter noticed more particularly. V. y4Wcr6-o«,8 App. Cas.467,488; Clovgh v. L. d- N. ]V. Bi/. Co., BriUnn v. RossiUr, 11 Q. B. 1). L. R.7 Ex. 2(i, .34 .s^. .• Il'in/iU v. 123, 127 ; Tai/lor v. Great Maskn; 22 Q. B. D. 3<>4 ; Taylor Eastern By. Co., 1901, 1 K. B. v. (,'reaf Enstern By. Co., 1901, 1 774. K. B. 774. (n) See ante, pp. 77 — 80. (p) Sec ante, p. 25, n. (p). (o) Sqq Load V. dree n,\'>M. & iq) 2\) Car. II. e. 3, .s. 4; W. 21(>, 221 ; Wliite v. (lanlrn, Prested Miners Co., Ld. v. 10 C. B 919 ; yVr/.sr v. (llod/ur, Gardner, 1911, 1 K. B. 425. L. 11. 1 P. C. 219, 229, 2.30; 86 OF CHOSES IN POSSESSION. Possession of goods sold. Vendor's lien. Although the property in goods sold may pass, as we have seen (r), from the seller to the buyer, immediately upon the formation of a vahd contract for sale, yet the possession of the goods of course remains with the vendor until he deliver them, which he is bound to do when the purchaser is ready to pay the price, but not before, unless other\sdse agreed (s). And if the whole of the price be not duly paid or tendered, then, where the goods have been sold without any stipulation as to credit, or where the goods have been sold on credit, but the term of credit has expired, or where the buyer becomes insolvent (t), the seller remaining in posses- sion of the goods has a hen upon them ; that is to say, notwithstanding that the property in the goods may have passed to the buyer, the seller is entitled to retain possession of them until payment or tender of the whole of the price {u). And where the property in the goods has not passed to the buyer, the seller has a right of withholding delivery similar to and co-extensive with his right of lien {x). Formerly, the seller's lien remained so long as he retained actual or constructive {y) possession of the goods, notwithstanding that he had given an order upon the warehousemen or other actual custodians of the goods, authorizing them to deliver the goods to the purchaser or liis assigns (2) : although where a seller had handed over to the buyer warrants which (?•) Ante, pp. 77, 78. (.s) Rmvson v. Johnston, 1 East, 203; 6 R. R . 252 Blozam v. Sanders, 4 B. & C 941 ; 28 R. R. 519 ; stat. 56 & 57 Viet. c. 71, ss. 27, 28, 39 (2). {t) A person is deemed to be insolvent within the meaning of the Sale of Goods Act, 1893, who either has ceased to pay his debts in the ordinary course of busi- ness, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy (as to which, see post, Pt. II C'h. IV.) or not ; stat 56 & 57 Vict. c 71, s. 62 (3). At common law, the term insolvent means being under a general inability to pay debts ; Biddleconibe v. Bond, 4 A. & E. 332. («) Stat. 56 & 57 Vict. c. 71, ss. 38, 39, 41. {x) Sect. 39 (2). ly) Ante, pp. 57, 71. (2) Dixon V Yates, 5 B & Ad. 313 ; JSVEican v Smith, 2 H. L. C. 309 ; Griffiths v Perry, 1 OF TRANSFERRING THE OWNERSHIP Ot CHATTELS. 87 authorized the cleHvery of the goods to the bearer only, and were taken to represent the goods by the usage of trade, the seller was prevented from setting up his hen against the holder of the warrant (a). But in this respect the law has been altered ; and under the Factors Act, 1889, and the Sale of Goods Act, 1893, if the vendor hand over to the buyer any delivery order or other document of title (b) to the goods, and the latter transfer the same to a person who takes it in good faith and for valuable considera- tion, the vendor's lien will be defeated or postponed, according as the last-mentioned transfer were made by way of sale, or by way of pledge or other dis- position for value (c). When the goods are once delivered by the vendor out of his own actual or constructive possession, his hen is gone (d) : for hen in law is, as we have seen (e), merely a right to retain possession, and not to recover it when given up. But the vendor may exercise his right of hen, notwithstanding that he is in possession of the goods as agent or bailee or custodian for the buyer (/), Under the Factors Act, 1889, and the Sale of Goods Act, 1893 (g), where a person having bought or agreed to buy goods, obtains with the consent of Vendor's lien may be de- feated under Factors Act, Disposition of goods by- buyer in possession valid under Factors Act. E. & E. G80 ; Grice v. Richardso)i. 3 App. Cas. 319 ; see ante, p. 74 and n. (y). (a) Merchant Banking Co. of London v. Phoenix Bessemer Steel Co., 5 Ch. D. 203. (h) Including any bill of lad- ing, dock warrant, warehouse- keeper's certificate, and \\arrant or order for the deliver}' of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of the document to transfer or receive the goods thereb}' represented ; stat. 52 & 53 Vict. c. 45, s. 1 (4). Such documents are excepted from the provisions of the Bills of Sale Acts, 1878 and 1882 ; stats. 41 & 42 Vict. c. 31, s. 4 ; 45 & 46 Vict, c. 43, s. 4 ; see Re Hamilton, Youiuj d; Co., 1905, 2 K. B. 772. (c) Stat. 52 & 53 Vict. c. 45, s. 10, replacing 40 & 41 Vict, c. 39, s. 5 ; 50 & 57 Vict. c. 71, ss. 47, 62 ; cf. Mordaunt v. British Oil cfcc. U., 1910, 2 K. B. 502. {d) Stat. 50 & 57 Vict. c. 71, s. 43. (e) Ante, pp. 62, 67. (/) Stat. 56 & 57 Vict. c. 71, s. 41 (2) ; see antp, p. 82. (7) Stats. 52 & 53 Vict. c. 45, s. 9, see ss. 2 (1), 5; 56 & 57 OF CHOSES IN POSSESSION. Disposition of goods by seller in possession valid under Factors Act. the seller possession of the goods or of the documents of title thereto (fi), the latter is hable to be deprived of his hen or other right in respect of the goods by the delivery or transfer over of such goods or docu- ments for valuable consideration to any person receiving the same in good faith and without notice of the seller's lien or right. It appears that one, who has agreed to sell goods without parting with his property in them (i), may lose his property in the goods in this manner, if he allow the buj^er to obtain possession of them or of the documents of title to them {k). It will be observed that the above provisions of the Factors and Sale of Goods Acts considerably modify the effect of the common law rule that, where goods are in the possession of a simple bailee, the bailor's constructive possession is not transferred merely by handing over a dehvery order, without the assent of the bailee {I). As we have seen (m), under the same Acts, when a buyer of goods allows the vendor to remain in possession of them, or of the documents of title {n) to them, he runs the risk of having his title to the goods displaced by the dehvery or transfer for value of the goods or documents by the seller to any person receiving the same in good faith and without notice of the sale. In certain circumstances, the vendor of goods has a right to resume their possession, with which he had previously parted under a contract for sale. Vict, c 71, s. 25 (2) ; ante, p. 23, n (g). (h) See Nicholson v. Harper, 1895, 2 Ch. 415. {i) Ante, pp. 77—80. [k) Lee v. Butler, 1893, 2 Q. B. 318, where possession of furni- ture was given under a hire- purchase agreement (cf. Helby v. Matthews, 1895, A. C. 471); Cahn V. Pocketfs dkc, Co., 1899, 1 Q. B. 643, where the seller sent the bujer a bill of lading accom- panied by a draft for the price, and the buyer indorsed over the bill of lading without accepting the draft (see ante, p. 79). (I) Ante, p. 74, n. (ij). (m) See ante, p. 23, n. (g). (n) Stats. 52 & 53 \'ict. c. 45, s. 8; 56 & 57 Vict c. 71, s. 25 (1) ; see s. 48 (2). OF TRANSFERRING THE OWNERSHIP OF CHATTELS. 89 This right is called the right of stoppage in transitu ; ^^^^^J^f^^ *" and it occurs when goods are consigned entirely or partly (o) on credit from one person to another, and the consignee becomes insolvent (p) before the goods arrive. In this event the consignor (q) has a right to direct the captain of the ship, or other carrier, to deliver the goods to himself or his agent instead of to the consignee, who has thus become unable to pay for them (r). The right of stoppage in transitu First allowed was first allowed and enforced only by the Court Ij:hancery.°* of Chancery, which in the exercise of its equitable jurisdiction, considered that, in the circumstances above mentioned, it was very allowable in equity for the consignor to get his goods again into his own hands (s). But the right was subsequently acknow- ledged and enforced by the courts of law. As this right was originally of equitable origin, it cannot be expected to depend on strictly legal principles ; and the doctrines of law on this particular subject are in fact unhke its usual doctrines on other matters. Thus it is at variance with the general principles of law that a man should be allowed to transfer to another a right which he has not, or that a second purchaser should stand in a better position than his vendor {t) ; but at common law the consignee of goods may, by indorsing the bill of lading to a bond fide indorsee, defeat the consignor's right to stop in transitu (u). And now, under the Factors (o) Hodgson v. Loij, 7 T. R. 339 ; see ante, pp. 22—24. 440 ; 4 R. R. 483. (n) Lickharroiv v. Matron, 2 T. (p) See ante, p. 80, n. (t). R. ()3 ; I H. Bl. 357 ; 1 Smith, \q) Sec Stat. o() & 57 N'ict. L. C. ; 1 R. R. 425 ; Jcnkyns v. c. 71, s. 38 (2) ; Bird v. Broicn, Unhorne, 7 Man. & Gr. 078, 099 ; 4 Ex. 780. Roger \. The Comftoird' EKcompte (r) The law of stoppajje in de Paris, L. R. 2 P. C. 393. See transitu is now rei^iilated by tiio Ex parte Golding, Davis <{• Co., Sale of (ioods Act, 1893,'stat. Limifrd, He Knight, 13 Ch. D. 50 & 57 Vict. c. 71, ss. 39, 44 — IS. 028. The indorscinent and de- («) ]Vi.-<( nian v. Vandeputt, 2 livery of a l)ill of lading by way Vern. 293 ; Hnee v. Prescot, 1 of security for an advance of Atk. 245. money does not absolutely defeat (<) Dixon V. Yates, 5 H. & Ad. the consignor s right to stop the 90 OF CHOSES IN POSSESSION. Act, 1889 (x), caiid the Sale of Goods Act, 1893 (?/), where any document of title (z) to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes it in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale, the unpaid seller's right of stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of stoppage in traiisitu can only be exercised subject to the rights of the transferee. And under other provisions of the same Acts already noticed (a), the seller's right of stoppage in transitu may be lost or postponed, if the buyer obtain with his consent possession of the bill of lading or other document of title to the goods, and dehver or transfer over the same for value to any other person receiving them in good faith and without notice of the seller's right ; notwithstanding that the circumstances in which the buyer obtained possession of the document did not amount to a complete lawful transfer thereof to him {a) . A dehvery of goods to a carrier, whether named by the buyer or not, is deemed, prima facie, to be a dehvery of the goods to the buyer (h), and divests the seller's Hen for unpaid purchase-money, unless he reserve the right of disposal of the goods (c). But until the transit is completely ended, or the goods come to the actual possession of the buyer or goods in transitu. In such a {x) Stat. 52 & 53 Viet. c. 45, case, if the consignor stop the s. 10, replacing 40 & 41 Vict. goocls, the amount due to the in- c. 39, s. 5. dorsee upon his security must (y) Stat. 56 & 57 Vict. c. 71, first be satisfied ; but, subject s. 47. thereto, the consignor will be (2) A7ite, p. 87, n. (6). entitled to the goods, or the pro- (a) Ante, pp. 87, 88. Cahn v. ceeds of sale of the goods, for his PockeU's, n held to be a valid contract ; Lewis V. Madocks, 8 Ves. 150 ; 17 Ves. 48 ; 7 R. R. 10 ; Hardy V. Green, 12 ]?cav. 182 ; Fyfe v. Arlnithnot, 1 De G. & J. 406 ; ReTurcan, 40 Ch. D. 5 ; Re Reis, ubi supra. {m) Holroyd v. Marshall, 10 H. L. C. 191 ; Collyer v. Isaacs, 19 Ch. U. 342 ; Joseph v. Lijons, 15 Q. B. D. 280 ; stat. 5(5 & 57 Vict. c. 71. 8. 5 ; Re Ellenborouijh, 1903, 1 Ch. 097; Glegg v. Bromley, 1912, 3 K. B. 474. (n) See Williams, R. P. 186, 187, 21st ed. 7—2 100 OP CHOSES IN POSSESSION. subject to a contract to assign them, which is capable of being specifically enforced, the equitable interest therein passes to the intended assignee so soon as the intending assignor has acquired the legal ownership of them (o). For directly the intending assignor comes to bo the legal owner of any such chattels as he has contracted to assign, a trust is imposed upon him by the rules of equity in favour of the intended assignee. Thenceforward the former is in the position of a trustee, holding his legal rights for the benefit of the latter. The latter will not, however, be invested with the legal owner- ship of such chattels, until it be transferred to him by delivery of possession, or other effectual means {p). The Bills of Sale Act of 1882 now makes void (with certain specified exceptions), except as against the grantor, all written assignments, made by way of security for the payment of money, of (o) Langton v. Norton, 1 Hare, 549 ; Holroyd v. Marshall, 10 H. L. C 191 ; Brown V. Bateman, L. R. 2 0. P. 272; Blake v. Izard, 16 W. R. 108 ; Clements V. Matthews, 11 Q. B. D. 808; Tailby v. Official Receiver, 13 App. Cas. 523 ; Pullan v. Koe, 1913, 1 Ch. 9. {p) See Lunn v. Thornton, 1 C. B. 379 ; Clements v. Matthews, 1 1 Q. B. D. 808 ; Joseph v. Lyons 15 Q. B. D. 280; Hallas v. Robinson, ib. 288. Thus under a mortgage of chattels to be after- wards acquired, coupled with a licence to seize them, the pro- perty in such chattels is com- pletely transferred upon actual seizure thereof in pursuance of the licence ; Congreve v. Evetts, 10 Ex. 298 ; Carr v. Acraman, 11 Ex. 668; Ho-pe v. Harjley, 5 E. & B. 830 ; Allatt v. Carr, 6 W. R. 578; Chidell v. Gals- worthy, 6 C. B. N. S. 471 ; Reeve V. Whitmore, 4 De G. J. & S. 1. Under contracts assigning chat- tels, which shall afterwards come into the assignee's possession, the legal ownership of the chattels passes as soon as they are de- livered into such possession ; Reeves v. Barlow, 12 Q. B. D. 436 ; Morris v. Delobbel Flipo, 1892, 2 Ch. 352. As we have seen (ante, pp. 78 — 80), on a contract for the absolute sale of chattels to be afterwards ac- quired or manufactured by the buyer, the projierty passes, as a rule, when goods of the descrip- tion sold are unconditionally appropriated to the contract with the assent of both parties. But in this last case, unless the contract be for the sale of some specific chattel to be afterwards acquired by the seller, no equitable interest will pass to the buyer upon the mere acqui- sition by the seller of goods of the description sold ; for the court will not enforce the specific performance of a contract for the sale of goods, unless they be specified or ascertained ; see ante, p. 20, note (k), and cases cited in note (I), above. II and lunatic. OF TRANSFERRING THE OWNERSHIP OF CHATTELS. 101 any tangible goods, of which the grantor is not the true owner at the time {q). Certain exceptions are made to the general right Personal of alienating chattels on account of personal "^capacity incapacity. By the common law, an alien or foreigner was under great restrictions as to the acquirement of real estate (r) ; but was under no disability with respect of the acquirement of property in chattels personal (s). And at common law, an alien, if not an enemy, might bring personal actions (f). Under the Naturalization Act, 1870 (it), TheNaturali- an alien now stands on the same footing as a natural- jg^'o" born British subject with regard to real as well as personal property, save only in respect of owning a British ship (y). At common law, the gift or conveyance of an infant (that is, a person under the Infant, idiot age of twenty-one) is voidable (x) : but by the effect of the Infants Relief Act, 1874 {y), an infant's conveyance of any lands or goods by way of mortgage or otherwise to secure the repayment of money lent to him, is absolutely void (z). The voluntary gift or conveyance of an idiot or lunatic seems to be absolutely void (a) : but conveyances made by a lunatic or an idiot for valuable consideration appear to be voidable only on his part, if the other party knew of his mental condition, and to be valid, if the other party were dealing with him in good (7) Stat. 4r) & 4G Vict. c. 43, Vict. c. 83, and other statutes, ss. 5, (j, stated in Apj)cndix (A) ; and amended bv 33 & 34 Vict, see Kelly v. Kellond, 20 Q. B. 1). e. 102, and 35 &"3(j Vict. c. 39. 5G9, 574 ; e-purchase agreement or settlement made (1) Fixtures • Co. L^ ^^- ^- ^^' deciding that goods comprised Crossley Bros. Ld. v. P tenant's wife are protected ; Hackney Iron Co., 1909, 2 K. B? or (2) Things which cai^PO'^ition of such tenant by the consent 3 Black. Comm. 9 • M^^ circumstances that such tenant is the (3) AnimaLs /e?7E M«i (4) Things in actuaUgricultural Holdings Act, 1908, applies, or Willes, 512^516, 517. tenant, or (5) Thincfs delivered'P'^ri premises where any trade or business worked-up or manat'e<^^ tenant and the undertenant have an Simpso7i V. Hartopp, Clarke v. Millwall Doc, o'^ premises used as offices or warehouses (C) Things in the cu^'''^ calendar month after notice to remove 362 ; Wharton v. Nay\ (7) Things belongiri^s of any company or corporation on pre- 2 K. B. 845. (rector or officer, or in the employment of (8) Money, if not in Bac. Abr. Distress (B)Wiancy has been created in breach of any (9) Beasts that strat'he landlord and his immediate tenant, or thereof (as bv not mai: under a lease existing at the date of the on the land- Co. Lit ^he landlord in that behalf, expressed in 5 B. & C. 047. ^ ^ reasonable time after the circumstances „ ve come, to his knowledge. (B) By statute— (10) The goods of a n ^ -c ix i lx, (11) Machines, mat^^lly only, if there be no other specified in the Hosieij — c. 40, ss. 18, 19, 34, 3| (12) Gas meters an( . , . ■, . , . ■• ■ meters, fittings and af ^^ or profession and nnplements of hiis- Mater or electric light^- ^J a ; Simpson v. Hartopp, Willes, 512, provisions of the Gasw ," . 9 : . , „. „. , 1847 or 1863 or the £ authorities last cited ; Figgott v. Btrtles. s. 14 ; 34 & 35 Vict, c 10 & 11 Vict. c. 17, s. 25 ; 9 Edw. VII. c. ,i Holdings Act, 1908, live stock bolongins (13) Railway rolhnijto be fed at a fair price ; stat. 8 Edw. VlL Rolling Stock Protecti (14) I he ^^■eanng a^g ^j. cocks of corn were not distrainable ; and implements of hiSKj^yeg qj. eocks of corn, or corn loose or in Act, 1888, stat. ol & 5jary, or upon any hovel, stack or rick, or V. Harris, 1900, 1 Q. Ij ^(ith the rcMit were made distrainable by (15) On holdings si.^i ^11 sorts of corn and grass, hops, roots, other machinery not ))„y p^rt of the land demised A\ere made ment ^Mth hini for the, 9 . „ec Clark v. (laskarth, 8 Taunt. 431 ; not belonging to the f stat. 8 Edw. V II. c. 2„yiQn j^^y against distress ft>r a rcntcharge (16) Subject to obieo ; see ca.ses cited above and in n. («), Amendment Act, 1908p{.tion. it appears to be a question in each a declaration of ownd^.^tcnd to alter the common law respecting (a) any undertenant ^ rcntcharge as ^\■ell as distress for rent actual or custoi^ „p„„ tlie grant of a rent with power of year the full ai^^ th.i„ j^ .^t, the time of the grant available in the undertoi 3/ ,7/,,;. y. Orcen, 8 Bing. 92,'^107 ; John'\ » t ' t '^ 1 ng that gooda comprised n a 1 re protected ; Hacknctj I h "9 of the Atm ultural Holdings Act, 1908, applic loti tie > and tho undertenant have i ( t be ng goods of a 1 dt.o ) on promiaes used aa offices or warehouaca ( th goods negle ts for one calendar month after notice to remove a ato tho p em aea o belonging t a d n the offi ea o( any company or corporation on pre he f 13 a director or officer, or in the employment of 1 y has been created in breach of any such company o corporat on ■ ( X } anj undertenant, he o the nde t covenant or ae eement in t t ng bet een the landlord and his immediate tenant, c he e the unae t«nari j has been c eated under a lease existing at the date of the pas n of the A t cont a ^ to tho ish of the landlord in that behalf, expressed in Tit ng and dehve e 1 at the p emises thin a rcaaonablo time after the circumstances have ome o vith due diligence ould hare omc, to his knowledge. II —Things privilege \ conditionally only, it there be no other Buflieient distiess on the piemises — (\1 \t mnonla — II 1 n t u nent of a mau 8 t adc or profession and implements of Iiuk- I ot n a t al use Co L tt 47 a ; Simpson v. Bttrlopp, VVillcs, 512, m n J Go Ion V Fall er 4T. R. 505. I the plough a 1 sheep see authorities last cited ; Piggolt v. Birilen, 1 W W 141 45 (B) B statute— (3) On h Iding subje t to the Aox cultu al Holdings Act, 1908, live stock belon^inj toanoth pe son and taken n by th t tt 1 efod iit afuir pric- ; stat, 8 EdM-. Vlh c '>8 9<) (1) ng C opa a 1 I ,,,,!- ,.f , r i, -.i. r. i,..( .Ij-t: umible ; not belong ng t th t a t an 1 1 Stat 8 Ed \II 8 ( (4) (10) Subj t t 1 f pe fied tl la f D t 4 ) 08 to s rv " o the landlo 1 e the full annual vatu ofth p n o of suoh part thereof aa compraed n th undo tenan y (b) an\ lodj, ( ) a tl p n hat o e n th f and ot ha ng an 1: o an\ pa b th of D Clark V. Oaskartk. 8 Taunt. 431 ; 1 OF ALIENATION FOR DEBT, 105 of certain land belonging to the grantor, with power given by agreement for the grantee of the rent to distrain therefor (z), is recoverable by distraining on any goods found on the land charged with the rent in the same manner as for rent service (a). And the statutory power of sale extends to goods distrained for any rent due upon any contract whatsoever (6), thus including a rentcharge (c). The same remedy by distress and sale is given by statute (d) in the case of rent seek, as in the case of For rent rent reserved upon lease. And a distress may be '^^^^' levied under an order of the county court for recovery of a tithe rentcharge upon the lands For tithe charged there\\dth, if in the occupation of their rentcharge. owner (e). Chattels may also be seized and sold, For Crown without suit, under prerogative process duly issued ^lebts. for the purpose, to satisfy a debt due from their owner to the Crown (/). And under various statutes, the defaulter's own chattels (g) may be For rates distrained and sold to satisfy parochial or borough ta,xes. (z) See Williams, R. p. 429 A^., Practice, pt. i. bk. i., 2ncl od. ; 21st ed. ('hitty on the Prerogatives of the (a) Saffenj v. Elrjood, 1 A. & E. Crown, ch. xii. ; stat. 28 & 29 191 ; Muspratt v. Gregory, 3 M. Vict. c. 104, s. 47. & W. G77, G78 ; Johnson v. (g) Not cxccjjting those pro- Faulkner, 2 Q. B. 92.5. As to tectcd at common law from dis- thc goods privileged from such tress for rent service ; Hutchins distress, see the Table annexed. v. Chambers, 1 Burr. 579, .588 ; (6) Stat. 2 Will. & Mary, see Stevens v. Evans, 2 Burr. sess. 1. c. 5, 8. 2. 1152, 1157, 1 W. Black 284, (c) Co. Litt. 47 b, n. (7). 285 ; Re Marrkiqe, Neave cfc Co., (d) Stat. 4 Geo. II. c. 28, s. 5 ; 1896, 2 Ch. 603. A regi.stcred see Williams, R. P. 428, 21st ed. bill of sale given by way of (e) Stats. 54 Vict. c. 8, s. 2 ; security for the payment of 6 & 7 Will. IV. c. 71, s. 81 ; see money does not protect the Williams, R. P. 448, 449 and goods comprised therein from n. (r), 21st ed. The question being seized under a distress what goods are privileged from levied for taxes or poor and other such distress a])pears to be ])arochial rates upon the goods similar to that raised in the case of the mortgagor ; stat. 45 & 4G of any other rentcharge ; see Vict. c. 43, s. 14 ; ante. pp. 93 — Table annexed. 95 ; post, AppcndLx (A). (/) Sec Manning's Exchequer 106 OF CHOSES IN POSSESSION. Under the Summary Jurisdiction Acts. rates unpaid after a summons for their payment (h) ; and land tax, income tax, and inhabited house duty unpaid after demand may be recovered by distraining upon the premises charged with the amount of such tax {i), or by distraining the person so charged by his goods and chattels, and all such other chattels as are by such statutes authorised to be distrained, and by selling such distress {k). A distress may hkewise be levied by a justice's warrant under the Summary Jurisdiction Acts on the goods of a person hable to pay a pecuniary penalty, compensation or a sum of money as pro\aded in those Acts, and the goods sold to raise the amount due (l). Execution against Except in the case of seizure under a distress or prerogative process, chattels are only liable to involuntary alienation for debt, in the owner's hfetime, in execution of a judgment obtained against him, and upon his bankruptcy. If judg- ment be obtained in the High Court of Justice for (h) Stats. 43 Eliz. c. 2, s. 4 (as to poor rate) ; 5 & 6 Will. IV. c. 50, s. 34 (as to highway rate) ; 12 & 13 Vict. c. 14 (procedure) ; 38 & 39 Vict. c. 55, s. 256 (as to the general district rate) ; 45 & 46 Vict. c. 50, ss. 144—148 (borough rates). (i) These words appear to give the like power as landlords have for rent service of distraining all chattels which are upon the pre- mises ; Juson V. Dixon, 1 M. & S. 601. It is presumed, however, that the common law exceptions do not apply in the case of the taxpayer's own chattels (see note [g), above), and it is a ques- tion whether they apply in the case of other persons' goods. It is thought that none of the statutory exceptions is applic- able unless by reason of the express terms of the particular Act, or unless it should be con- sidered that this power of dis- tress should be no greater than the landlord's power of distress for the time being ; see annexed Table of things privileged from distress. {k) Stat. 43 & 44 Viet. c. 19, ss. 85, 86 ; Lumsden v. Burnett, 1898, 2 Q. B. 177; Elliott v. Yates, 1900, 2 Q. B. 370. See note (g), above, as to bills of sale. (I) Stats. 11 & 12 Vict. c. 43, s. 19 ; 47 & 48 Vict. c. 43, s. 5. The wearing apparel and bed- ding of a person and his family and, to the value of 5Z., the tools and implements of his trade, are not to be taken under a distress issued by a court of summary jurisdiction ; stat. 42 & 43 Vict, c. 49, s. 21 (2). OF ALIENATION FOR DEBT. 107 the recovery or payment of a sum of money, the judgment debtor's goods and chattels may be taken in execution and sold under the writ of fieri facias ifi- f^'-) (f^)- This writ is of very ancient date, and Writ of fieri is usually said to be given by the common law ; ^^^'^s. though some suppose that its name arose from the wording of the statute of Edward I. (n), by which the ^vrit of elegit was provided (o). The writ directs the sheriff to cause the amount of the judgment debt to be realized out of the goods and chattels of the debtor, quod fieri facias de bonis et catallis, &c. ; and a sale of the goods is made by the sheriff accordingly (p). Goods, however, are not, as lands formerly were, affected by the mere entry of a judgment of a court of law against the owner. The debtor was always allowed to aUenate his goods until the writ of execution was issued ; although by a fiction of law all judicial proceedings, writs of execution included, formerly related back to the first day of the term to which they belonged (q). Goods, therefore, which had been sold after the first day of a term, might yet practically have been seized under a writ of fi. fa. relating back to that {/») See Rules of the Supreme tion (C. 2) ; see Johnson v. Court, 1883, Order XLII. r. 3, Pickering, 1908, 1 K. B. 1. By and Appx. H. No. 1, where the stat. 8 Anne, c. 18 (c. 14 in Ruff- form of the writ of ^./a. is given, head), s. 1, amended by 7 & 8 ill) Stat. 13 Edw. T. c. 18, Vict. c. 96, s. 67, the landlord is called the Statute of West- given a right to be paid one min-ter the Second. See Wil- year's arrears of rent, or not liams, R. P. 209, 21st ed. more than four weeks' arrears (o) Bac. Abr. Execution (C). where the tenement is let at a (;)) The common law rule was weekly rent, or not more than that, under the writ of fi. fa., four terms' arrears where the the sheriff could onl}' seize such tenement is lot for any other things as he could sell ; Lefjg v. term less than a year, before any Evans, 6 M. & W. 36, 41 ; but goods taken in execution against by stat. 1 & 2 Vict. c. 110, s. 12, his tenant are removed from off the sheriff was empowered to the premises ; see Re. Mackenzie, seize money and bank notes as 1899, 2 Q. B. 566 ; Cox v. Harper well, and also tangible securities 1910, 1 Ch. 480. for money, such as bills of ex- (q) Com. Dig. tit. Execution change, notes, cheques, or bonds, (D. 2) ; Anon., 2 Vent. 218. See allof which were formerly exempt 2 Sugd. Vend. & Pur. 9th cd. from seizure ; Bac. Abr. Exccu- 198. 108 OF CHOSES IN POSSESSION. Statute of Frauds. Judgments of inferior courts. day, but subsequently issued. To remedy this evil, it is enacted in the Sale of Goods Act, 1893 (r), in place of one of the sections of the Statute of Frauds (s), that a writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff (t) to be executed ; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same. And it is further provided in the same Act of 1893 {u), in place of an enactment of 1856 (x), that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ, or any other writ by virtue of which the goods of the execution debtor might be seized or attached, had been deUvered to and remained unexecuted in the hands of the sheriff. Goods and chattels may therefore be safely alienated, although judgment exist against their owner, provided a writ of execution be not actually in the hands of the sheriff ; and even in this last event, a good title will be acquired by any person, who takes them in good faith and for valuable consideration, without notice of a writ of execution having been delivered to the sheriff and remaining unexecuted in his hands (y). Chattels {/•) Stat. 56 & 57 Vict. c. 71, s. 26. (s) Stat. 29 Car. II. c. 3, s. 16. (t) In this section the term " sheriff " inckidcs any officer charged with the enforcement of a writ of execution. (u) Stat. 56 & 57 Vict. c. 71, s. 26. (x) Stat. 19 & 20 Vict. c. 79, s. 1 ; Gladstone v. Padwick, L. R. 6 Ex. 203. See Hohson v. Thel- luson, L. R. 2 Q. B. 642, qu. ? (//) Formerly, besides the sale of goods under the writ of fieri facias, there might also bo a writ of levari facias, by which the sheriff levied the corn and other present profit which grew on the judgment debtor's lands, to- gether with the rents then due, and the cattle thereon : 2 Wms. OF ALIENATION FOR DEBT. 109 may be seized and sold in execution of judgments obtained in inferior courts (z), of which the county courts (a) are now the most important, as well as under a writ of fi.fa. issuing out of the High Court (b). And the seizure of the goods of any person under Sale or process in an action in any court, or in any civil tweiity^ono proceeding in the High Court, followed by the sale days under of the goods or their retainer by the sheriff for ^^l^^^ bf[!ik'^ twenty-one days, is now an act of bankruptcy (c). ruptcy. But an execution levied by seizure and sale of the debtor's goods is not invalid for this reason only ; and a purchaser of goods in good faith on a sale by the sheriff in all cases acquires a good title to them- as against the debtor's trustee in bank- ruptcy (d). As we shall hereafter see, under the bankruptcy law, a judgment creditor is liable, in certain cases, to be deprived of the fruits Saunders, 68 a, n. (1). But this writ, having long fallen out of use, was abolished in civil pro- ceedings by the Bankruptcy Act, 1883 ; 3 Black. Comm. 417 ; Stat. 46 & 47 Vict. c. 52, s. 146, sub-s. 2. And formerly goods might be taken in execution under the writ of elegit, by which the goods of the debtor were delivered to his creditor at an appraised value, together with possession of his lands ; Pullen v. Purhecke, 1 Ld. Raym. 346 ; Ex parte Abbot, re Gourlay, 15 Ch. D. 447 ; Hough v. Wiiidus, 12 Q. B. D. 244 ; see Williams, R. P. 269, 21st ed. But under the Bankruptcy Act, 1883, the writ of elegit no longer extends to goods ; Stat. 46 & 47 Vict. c. 52, ss. 146 (sub-s. 1), 169 and Fifth Schedule. (z) As to local inferior courts, see 3 Steph. Comm. 316 ,sq., 11th ed. ; Elphinstone & Clark on Searches, 54. (a) See stat. 51 & 52 Vict. c. 43 ss. 146 ,iq. ; and as to the time from which a writ of execution in the county court binds the goods ; Murgatroyd v. Wriyht, 1907, 2 K. B. 333; BirMall Candle Co. v. Daniels, 1908, 2 K. B. 254. [b] As to the removal of judg- ments of the inferior courts into the High Court, in order that execution may be had thereunder against the debtor's freehold lands, see Williams, R. P. 278, 21st ed. Under stat. 31 & 32 Vict. c. 54, certificates of judg- ments of the superior court,s of England, Scotland or Ireland may be registered m a superior court in the other parts of the United Kingdom, when the same proceedings may be taken on such certificate as if it \\ere a judgment of the court in which it is registered ; see Re Watson, 1893, 1 Q. B. 21 ; Re Low, 1894, 1 Ch. 147. (r) Stat. 53 & 54 Vict. c. 71. s. I ; Fiqg V. Moore, 1894, 2 Q. B ()90. (d) Stat. 46 & 47 Vict. c. 52, s. 46, sub-s. 3. 110 OF CHOSES IN POSSESSION. of an execution in favour of the creditors gener- ally (e). Debtor's own goods only can be taken in execution. The court may order a sale. Execution against equitable interests in chattels. Under the writ of ^. fa., the sheriff can only seize or sell chattels of wliich the judgment debtor is the legal owner (/). The sheriff cannot therefore so take any goods in the debtor's possession, of wliicli he has effectually assigned over the legal ownership by bill of sale or otherwise (g). But when goods or chattels have been seized in execution under process of the High Court, and any claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the court or a judge may order a sale of the whole or a part thereof, and direct the appHcation of the proceeds of the sale in such manner and upon such terms as may be just (h). And if in such case the proceeds of sale be sufficient to satisfy the amount owing to the claimant, the balance will be ordered to be paid to the execution creditor (i). Formerly, if the judgment debtor were merely entitled to an equitable interest in goods, as when they were held on trust for him or he had only an equity of redemp- tion, and execution against the goods were thus prevented at law, the judgment creditor might sue in a court of equity for assistance, and so obtain a hen in equity on his debtor's interest in the goods (k). (e) See stats. 46 & 47 Vict, c. 52, s. 45 ; 53 & 54 Vict. c. 71, s. 11, stated in the chapter on Bankruptcy, post. if) Bac. Abr. Execution (C. 3) ; Scott V. Scholey, 8 East, 467 ; 9 R. R. 487 ; see post. Part IV. The things mentioned in ss. I. (B.) 11, 12, of the Table of things privileged from distress (ante, p. 104) are, however, expressly exempted from process of execu- tion against the person in \\hose possession they are. (g) See Sairhtt v. Hanson, 12 Q. B. D. 213 ; ante, pp. 75—77, 93 ()5_ (h) drd. LVII. r. 12. This rule reproduces in effect stat. 23 & 24 Vict. c. 126, s. 13, which was repealed by stat. 46 & 47 Vict. c. 49, saving the jurisdic- tion thereby estabUshed, and re- serving the power of making rules of court as to the matters con- tained therein. (i) See Stern v. Tegner, 1898, 1 Q. B. 37 (k) Lewin on Trusts, 645 sq., 6th ed. ; 1029 sq., 12th ed. OE ALIENATION FOR DEBT. Ill And since the Judicature Acts, the same rehef may be obtained by the appointment of a receiver, where any impediment exists against taking goods in execution at law (Z). If the judgment debtor be the legal owner of the goods in his possession, but has created equitable interests therein in favour of other persons, the sheriff seizing the goods in execution of the judgment takes them subject to all such equities (m). The wearing apparel and bedding (n) of any judgment debtor or his family, and the tools and implements of liis trade (not exceeding in the whole the value of five pounds), are protected from seizure under any execution or order of any court against his goods and chattels (o). Choses in possession are also liable to aUenation Bankruptcy, for debt in their owner's lifetime in the event of his bankruptcy. When a debtor is adjudged bank- Property now rupt, all such property as may belong to or be vested vests in the in liim at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge, becomes divisible among his creditors, and vests in the official receiver as trustee for the purposes of the Bankruptcy Act, 1883, until a trustee is appointed by the creditors, and then vests in the trustee so appointed {p). The only exceptions are property held by the bankrupt on trust for any other person, and the tools (if any) of his trade, and the necessary wearing apparel and bedding of himself, his wife and children, to a value not {I) Manchester and Liverpool Davey v. Williamson, 1898, 2 District Banking Co. v. Parkin- Q. B. 194, 200 ; Simultaneous son, 22 Q. B. D. 173 ; Levasscur, d;c. Syndicate \. Foweraker, 1901, V. Mason and Barry, 1891, 2 1 Q B. 771. Q. B. 73, where the judgment (n) Sec Davis y. Harris, 1900, debtor's goods were in the 1 Q. B. 729. posses.sion of a third party having (o) Stats 8 & 9 Vict. c. 127, a lien thereon ; and see Harris s. 8 ; 51 & 52 Vict. c. 43, s 147. V. Baanchamp, ]S!)4, 1 (). 15. 801. {p) Stat. 4G & 47 Vict. c. 52, (m) lie Staiidind Maniifac- as. 20, 21, 44, 54; see the luring Co., 1891, 1 Cli. 027, 041 ; chapter on Bankruptcy below. 112 OF CHOSES IN POSSEbSION. Goods in the exceeding twenty pounds in the whole (q). And order, or ' ^^e bankruptcy law further provides (q) that the disposition of property of the bankrupt divisible amongst his as reputed creditors shall comprise all goods (r) being at the owner. commencement of the bankruptcy in the possession, order or disposition of the bankrupt, in his trade or business (s), by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof (t) ; and all such goods vest in the trustee in bankruptcy along with the bankrupt's own property (u). The true owner thus loses his property in the goods : but he is entitled to prove in the bankruptcy for their value (x). In order to bring the " reputed ownership " clauses of the bankruptcy law into operation, it must be established that the bankrupt was the reputed owner of the goods of another as well as that such goods were in the bankrupt's possession, order or disposition with the consent of the true owner (y). For the object of these provisions is to prevent traders and men of business from obtaining false credit from the possession of property which is not their own. If, therefore, there be in any trade or business a notorious custom for pei'sons engaged therein to have the possession, order or disposition of goods which are not their own, such goods will not pass to the trustee in bankruptcy of the person (q) Stat. 46 & 47 Viet. c. 52, s. 44. (r) Not including things in action other than debts due or growing due to the bankrupt in the course of his trade or busi- ness. (s) See Be Wallis, Ex parte Sully, 14 Q. B. D. 950; Be Jenkinson, 15 Q. B. D. 441 ; Sharman v. Mason, 1899, 2 Q. B. 679. (t) See Ex parte Lovering, Be Jones, L. R. 9 Ch. 621 ; Ex parte Brookes, Be Fowler, 23 Ch. D. 261 ; decided under the Bank- ruptcy Act, 1869. (u) Stat. 46 & 47 Vict. c. 52, ss. 44, 54. For the previous law, see stats. 32 & 33 Vict. c. 71, ss. 15, 17 ; 12 & 13 Vict. c. 106, s. 125; 5 & 6 Vict. c. 122, s. 59 5^. ; 1 & 2 Will. IV. c. 56, s. 7 ; 6 Geo. IV. c. 16, s. 72 ; 21 Jac. I. c. 19, s. 11; Heslop v. Baker, 6 Ex. 740. (x) Ante, p. 25, n. (p) ; Be Button, 1907, 2 K. B. 180. (y) Be William Watson d; Co., 1904, 2 K. B. 753. OF ALIENATION FOR DEBT. 118 so in possession of them. For in such a case he obtains no credit from the possession of the goods (2). As we have seen (a), goods mortgaged by bill of Goods re- sale or otherwise usually remain in the mortgagor's '^'^"^g "^ "^ _ o o a mortgagor s possession until default be made in payment accord- possession in ing to the terms of the agreement ; and a mortgagor Ijyg^ness^ ^^ does not lose the reputation of being owner of such goods, although all property in them may have passed to the mortgagee. If, therefore, any mort- gaged goods remain in the mortgagor's possession, order or disposition, in his trade or business, they will, in the event of his bankruptcy, vest in the trustee for the benefit of his creditors generally (b) ; and the mortgagee will be deprived of his ownership of the goods (c). A considerable disadvantage is thus attached to mortgages of goods employed in the mortgagor's trade or business ; and this is not removed by due registration of the mortgage under the present Bills of Sale Acts (d). Absolute assign- (z) See Whitfuekl v. Brand, 1(3 M. & W. 282 (books deposited with a booivseHcr to be sold on commission) ; Hamilton, v. Bell, 10 Ex. 545 (flocks left with a clock maker to be cleaned) ; Hol- derness v. Rankin, 4 De G. F. & J. 258, 273, 274 (an unfinished ship in a shiiibnilder's posses- sion) ; Ex ■parte. Watkins, Me CouMon, L. 11. 8 Ch. 520 (whisky left in the vendor's bonded ware- house till wanted, according to the custom of the trade in Liver- pool) ; Ex parte Wingfield, Be Florence, 10 Ch. D. 591 (a horse left with a horse-dealer on sale or return) ; Grawcour v. Salter, 18 Ch. D. 30; Ex parte Tur- qtiund. Re Parker, 14 Q. B. 1). 636 (both cases of furniture hired by hotel-keepers according to their usual eustoTn) (a) Ante, p. 94. (h) Ryall v. Rolle, 1 Atk. 165, 170; S. C. 1 Ves. sen. 348; Frcshney v. Carrtck, 1 H. & N. W.P.P. 653 ; S packman v. Miller, 12 C. B. N. S. 659; Hornshy v. Miller, 1 E. & E. 192 ; Stansfield V. Cnhitt, 2 De G. & J. 222; Badejer v. Nhaiv, 2 E. & E. 472 ; Ex parte Harding, L. R. 15 Eq. 223. (c) Ante, p. 25, n. (p). (d) Re Ginger, 1897, 2 Q B. 461 ; and eases cited in note (z), above, liy the Bills of Sale Act, 1878, grantees under bills of sale duly registered in accordance with the Act were protected against the inconvenience a})ove- mentioned. But this protection \\as Avithdrawn by the Bills of Sale Act, 1882, from all bills ot sale given by M'ay of security for the payment of moncj' ami not duly registered before the com- mencement of that Act ; stats. 41 & 42 Viet. c. 31, s. 20 ; 45 & 46 Vict. c. 43, ss. 1—3, 15 (commenced 1st Nov. 1882) ; see Ex parte Izard, Re Ghnpplr, 23 Ch. D. 409. 114 OF CHOSES IN POSSESSION. ments of chattels (e) duly registered under the Bills of Sale Act, 1878, arc however protected from the operation of the " reputed ownership " clauses of the bankruptcy law, notwithstanding that the goods remain in the assignor's possession after the assignment (/). Alienation for debt after death. On the decease of any person, his chattels have always been liable to the payment of his debts of every kind (g). The creditor's remedy is either to sue the executor or administrator (h) of the deceased, when execution can be had against the goods of the testator or intestate, or to apply under the equitable jurisdiction of the court for the administration by the court of the deceased debtor's estate {i). A creditor may also take proceedings to have the insolvent estate of his deceased debtor administered in bankruptcy. When an order is made for the administration in bankruptcy of a deceased debtor's estate, his personal as well as his real property vests first in the official receiver as trustee, and then in the trustee appointed by the creditors ; and the trustee is empowered to realize the same by sale or otherwise, and to distribute the proceeds among the creditors of the deceased (k). If a deceased debtor's goods be distributed by his executor or administrator without payment of his debts, whether through ignorance of them or otherwise, his creditors have the right to follow the goods in the hands of all persons, who may acquire them otherwise than for valuable consideration without notice of the creditor's claims (l). (e) Ante, pp. 75, 76. (/) Swift V. Pannell, 24 Ch. D. 210. (g) Ante, p. 2 ; AVilliams, R, P. 20, 21st ed. (h) Ante, p. 3. (i) See 2 Wms. Exors. 1929 aq., 7th ed. ; 1565 sq., 10th ed. ; Harrison v. Kirk, 1904, A. C. 1, 5 sq. {k) Stat. 46 & 47 Vict. c. 52, s. 125, amended by 53 & 54 Vict, c. 71, s. 21. [l) March v. Russell, 3 My. & Cr. 31, 40 — 42 ; S packman v. Tirnbrdl, 8 Sim. 253 ; Dilkes v. OF ALIENATION FOR DEBT. 115 By a statute of the reign of Elizabeth (m), the Conveyances gift or alienation of any lands, tenements, heredita- defraud ments, goods and chattels, made for the purpose of creditors, delaying, hindering or defrauding creditors, is rendered void as against them unless made upon good, which here means valuable, consideration, and bo7id fide to any person not having at the time of such gift any notice of such fraud. No such gift or alienation of chattels is therefore of any avail against the claim of a judgment creditor to take the same in execution, or the title of the debtor's trustee in bankruptcy, or against creditors who take proceedings to secure payment of their debts out of the debtor's estate after his death (n). The fraudulent purpose intended by the statute of Elizabeth can of course only be judged of by circumstances. Thus it has been held that if the owner of goods make an absolute assignment of them by deed to one of his creditors, and yet remain in the possession of the goods, such remaining in possession is a badge of fraud, which renders the assignment void, by virtue of the statute, as against the other creditors (o). But if the assignment be made by way of mortgage to secure the payment of money at a future day, with a proviso that the debtor shall remain in possession of the goods until he shall make default in payment (p), the possession of the debtor, being then consistent with the terms of the deed, is not regarded in modern times as rendering the transaction fraudulent within the meaning of the statute (q). It has been decided Broddmcad, 2 G'lff. 113 ; 2 De G («) Richnrdson v. SmaUwood, F. & J. 56(i ; Jervis v. Wolfer- Jac. 552. Stan, L. R. 18 Eq. 18 ; Hunter v (o) Tivi/nes cme, 3 Rep. 80 b Young, 4 Ex. D. 250 ; sec Hooper 1 Smiths Leading Cases, 1 V. .Sinart, 1 Ch. D. 90 ; Blake v. Edivards v. Harhen, 2 T. R. 587 Gale, 32 Ch. 13. 571 ; W orthinqton 1 R. R. 548. tfr Co., lA. V. Abbott, 1910, 1 Ch. (p) Ante, p. 94. 588, 591, 598 ; Re Eustace, 1912, (q) Edwards v. Harben, 2 T. R. 1 Ch. 561. 587 ; 1 R. R. 548 ; Marlindale v. (m) Stat. 13 Eliz. c. 5. Booth, 3 B. & Ad 498 ; Reed v. 8—2 116 OF CHOSES IN POSSESSION. Fraudulent preference of one creditor over others. that a bona fide sale or alienation of chattels, though made to secure or satisfy a creditor, is not void under the statute of Elizabeth, merely because it is made with the intention of defeating an expected execution at suit of another creditor (r). Under the bankruptcy law, however, conveyances of property made by any person unable to pay his debts as they become due out of his own money, with a view of giving one of his creditors a preference over the others, becomes void, as against his trustee in bankruptcy, if he be adjudged bankrupt on a petition presented within three months after the conveyance (s). And under the bankruptcy law {t), fraudulent conveyances of property are void, as against a trustee in bankruptcy ; and voluntary settlements of any property become void, if the settlor be adjudged bankrupt within two years after making them, and are further liable to become void, if he be adjudged bankrupt within ten years after making them, unless it can be proved that at the time of maldng the settlement he was able to pay all his debts without the aid of the property com- prised in the settlement, and that his interest in such property passed to the trustee of such settle- ment on the execution thereof. The protection of creditors against secret mortgages or assignments of chattels is also one of the objects of the Bills of Sale Wilmot, 7 Bing. 577. If the mortgagor should retain posses- sion after default in payment at the time specified, it may possibly be doubted whether the security woiilcl not then be void as against creditors under the statute of Elizabeth, for, by the terms of the deed, the mortgagor is only to enjoj' possession until default. But the better opinion is that the deed will still be good. See Davidson's Precedents, vol. ii. part 2, pp. 145—147, 4th ed ; Ex parte Sparrow, 2 De G. M. & G. 907. (?) Wood V. Dixie, 7 Q. B. 892 ; Hale V. Saloon Omnibus Co., 4 Drew. 492; Gladstone v. Pad- wick, L. R. 6 Ex. 203, 209, 211 ; and see Alton v. Harrison, L. R. 4 Ch. 622 ; Mason v. Briton, &c. Assn., Lim., 4 Times, L. R. 755. (s) Stat. 46 & 47 Vict. c. 52, s. 48. {t) Sects. 4, 47 ; see the chapter on Bankruptcy, below. OF ALIENATION FOR DEBT. 117 Acts (u), to which we have before referred (x). As Bills of Rale Acts we have seen, their scheme is to secure the pubUcity of registration for all written assurances of the property in goods, which remain in the assignor's possession. We may add that assignments of chattels required to be registered under the Bills of Sale Act, 1878 (y), may become void, for want of compUance with the Act, not only as against the assignor's execution creditors and trustee in bank- ruptcy, but also as against his assignees under any assignment for the benefit of his creditors. (u) stats. 41 & 42 Virt. o. 31 ; (A). 45 & 46 Vict. c. 43, replacint,' an (x) Ante, pp. 75, 84, 95—08. Act of 1854 ; see post. Appendix (//) Ante, pp. 75, 97. 118 OF CHOSES IN POSSESSION. CHAPTER III. OF SHIPS. There is one important class of choses in posses- sion which the poHcy of the law has rendered subject to peculiar rules, namely, ships and vessels. The law on this subject is now contained in the Merchant Shipping Act, 1894 (a), which replaced the Merchant Shipping Act, 1854 (h), and the Acts British ships, amending it. Every British ship, with a few unim- portant exceptions, is required to be registered (c) ; and no ship is to be deemed a British ship unless owned wholly by natural-born British subjects, persons duly naturalized or made denizens who have thereupon or subsequently taken the oath of allegiance to the King and are either resident in His Majesty's dominions or partners in a firm actually carrying on business in His Majesty's dominions, or bodies corporate established under and subject to the laws of some part of His Majesty's dominions and having their principal place of business in those dominions (d). Nothing contained in the Naturalization Act, 1870 (e), is to qualify an alien to be the owner of a British ship ; and any natural-born British subject, who has become a citizen or subject of any foreign state, is not qualified to be the owner of a British ship, unless he has subsequently taken the oath of allegiance to the King and is either resident in His Majesty's domi- nions or partner in a firm actually carrjring on (a) Stat. 57 & 58 Vict. c. 60. (d) Stat. 57 & 58 Vict. c. 60, (6) Stat. 17 & 18 Vict. c. 104. p. 1, replacing 17 & 18 Vict. c. (c) Stat. 57 & 58 Vict. c. 60, 104, s. 18. ss. 2, 3, replacing 17 & 18 Vict. (e) Stat 33 Vict. c. 14, s. 14 ; c. 104, s. 19. ante, p. 101. OF SHIPS. 119 business there (/). The registration of ships is made by the chief officer of customs at any port in the United Kingdom or Isle of Man approved by the commissioners of customs for the registry of ships, and by other officers in tlie colonies and possessions abroad (g). The property in every ship is divided into sixty- Property in four shares ; and, subiect to the provisions of the British ships ' ' "^ ^ divided into Merchant Shipping Act with respect to joint owners sixty-four or owners by transmission, not more than sixty- ^^'^''•^^• four individuals shall be entitled to be registered at the same time as owners of any one ship ; but this rule shall not affect the beneficial title of any number of persons, or of any company represented by or claiming under or through any registered owner or joint owner. A person shall not be entitled to be registered as owner of any fractional part of a share in a ship ; but any number of persons not exceeding five may be registered as joint owners of a ship, or of a share or shares therein. And joint owners shall be considered as constitut- ing one person only, as regards the number of persons entitled to be registered as owners, and shall not be entitled to dispose in severalty of any interest in any ship, or in any share therein in respect of which they are registered. A Corporation may be registered as owner by its corporate name {h). No notice of any trust, express, implied, or con- No trusts structive, shall be entered in the register book or the^ret^ister be receivable by the registrar ; and, subject to any rights and powers appearing by the register book to be vested in any other party, the registered owner of a ship, or of a share therein, shall have (/) Stat. 57 & 58 Vict. c. 60, 104, s. 30. s. 1, replacing 17 & 18 Vict. e. (h) Stat. 57 & 58 Vict. c. 00, 104, 3. 18. s. 5, replacing 17 & 18 Vict. c. (f/) Stat. 57 & 58 Vict. c. 00, 104, s. 37, as aiucnded by 43 & 44 a. 4, replacing 17 & 18 Vict. c. Vict. c. 18. 120 OF CHOSES IN POSSESSION. But equities may be enforced. power absolutely to dispose, in manner provided in the Act, of the ship or share, and to give effectual receipts for any money paid or advanced by way of consideration (^). But the intention of the Act is, that without prejudice to the provisions contained in the Act, for preventing notice of trusts from being entered on the register, and without prejudice to the powers of disposition and of giving receipts conferred by the Act on registered owners and mortgagees, and without prejudice to the provisions contained in the Act relating to the exclusion of unqualified persons from the ownership of British ships, interests arising under contract or other equitable interests may be enforced by or against owners and mortgagees of ships in respect of their interests therein, in the same manner as in respect of any other personal property (k). It is held, that although under these provisions the Courts may recognize and give effect to equitable interests in ships (1), they cannot (in the absence of fraud) allow an equitable title to prevail over a title obtained from the registered owner by an assurance duly made and registered in accordance with the Act. Thus an unregistered equitable charge upon a ship will be postponed to a subsequent legal mortgage made and registered as provided in the Act, even though the mortgage were taken with notice of the charge (m). Certificate of registry. Upon the completion of the registry of a ship, a certificate of registry is given {71) ; which is kept (i) Stat. 57 & 58 Vict. c. 60, s. 50, replacing 17 & 18 Vict. c. 104, a. 43. (k) Stat. 57 & 58 Vict. c. 60, s. 57, replacing 25 & 26 Vict. c. 63, s. 3 ; .see The Venture, 1908, P. 218, 230 ; Burgis v. Gondan- tine, 1908, 2 K. B. 484. (l) Ward V. Beck, 13 C. B. N. S. 668 ; Stapleton v. Haymen, 2 H . & C. 918. (m) Blach v. Williams, 1895, 1 Ch. 408 ; Barclay & Co., Ld. v. Poole, 1907, 2 Ch. 284. {n) Stat. 57 & 58 Vict. c. 60, s. 14, replacing 17 & 18 Vict, c 104, s. 44. OF SHIPS. 121 in the custody of the master, and is to be used only for the lawful navigation of the ship, and is not subject to detention by reason of any title, lien, charge, or interest whatever had or claimed by any owner, mortgagee or other person to, on, or in the ship (o). Any change occurring in the registered ownership of a ship is required to be endorsed on her certificate of registry either by the registrar of the ship's port of registry, or by the registrar of any port at which the ship arrives wlio has been advised of the change by the registrar of her port of registry (;)). Provision is made for granting a new certificate in the place of any which may be dehvered up, or may be mislaid, lost or destroyed {q). A registered ship or a share therein, when disposed Transfer of of to a person qualified to own a British ship, must *^ ^^^' be transferred by bill of sale made in the form prescribed by the Act, or as near thereto as circum- stances permit, and executed by the transferor in the presence of and attested by a witness or witnesses (r). But the transferee of a registered ship, or a share therein, is not entitled to be registered as owner thereof until he has made a declaration of transfer stating his quahfication to own a British ship, and that no unqualified person or body of persons is entitled as owner to any legal or beneficial interest in the ship or any share therein (s). The bill of sale, together with the declaration of transfer, (o) Stat. 57 & 58 Vict. c. (10, Vict. c. 104, s. 55, and 18 & 19 s. 15, replacing 17 & 18 V'ict. Vict. c. 91, s. 11. See Gluts- c. 104, s. 50 temmeiifv. Capeyron., 7 App. Cas. (p) Stat. 57 & 58 Vict. c. (10, 127. s. 20, replacing 17 & 18 Vict. (s) Stat. 57 & 58 Vict. c. 60. c. 104, s. 45. s. 25, replacing 17 & 18 Vict. (q) Stat. 57 & 58 Vict. c. GO, c. 104, .s. 56. In the case of a 88. 17, 18, 21, amended by corporation the declaration must 6 Kdw. VII., c. 48, 8. 52, and be made by the secretary or other replacing 17 & 18 Vict. c. 104, officer authorized by the corpora- 88. 47, 48, 53. tion for the purpose ; stat. 57 & (r) Stat. 57 & 58 Vict. c. 60, 58 Vict. c. 60, a. 61 (2). 88. 24, 65 (2), replacing 17 & 18 122 OF CHOSES IN POSSESSION. must then be produced to the registrar of the ship's port of registry, who thereupon enters in the register the name of the transferee as owner of the ship or share comprised in the bill of sale, and also endorses on the bill of sale the fact of such entry having been made with the date and hour thereof. All bills of sale are entered in the register book in the order of their production to the registrar (t). Mortgage of All mortgages of any ship, or share therein, are ships. ^Q ^Q ^ ^YiG form prescribed by the Act, or as near thereto as circumstances permit ; and on the pro- duction of any such instrument, the registrar of the ship's port of registry is to record the same in the register book. Mortgages shall be recorded by the registrar in the order of time in which they are produced to him for that purpose, and the registrar shall by memorandum under his hand notify on each mortgage that the same has been recorded by him, stating the day and hour of that record (u). If there are more mortgages than one registered in respect of the same ship or share, the mortgagees are entitled in priority one over the other according to the date at which each mortgage is recorded in the register book, and not according to the date of each mortgage itself, notwithstanding any express, impHed or constructive notice (v). As we have seen {x), a legal mortgage duly made and registered in accordance with the Act has priority over an unregistered equitable charge, previously created, notwithstanding that the mortgage were taken with notice of the charge. Except as far as shall be necessary for making a mortgaged ship or share (t) Stat. 57 & 58 Vict. c. 60, 19 Vict. c. 91, s. 11. s. 26, replacing 17 & 18 Vict. {v) Stat. 57 & 58 Vict. c. 60, c. 104, s. 57 s. 33, replacing 17 & 18 Vict. (u) Stat. 57 & 58 Vict. c. 60, c. 104, s. 69. ss. 31, 65 (2), replacing 17 & 18 (x) Ante, p. 120. Vict, c 104, S3. 66, 67, and 18 : OF SHIPS. available as a security for the mortgage debt, the mortgagee shall not by reason of his mortgage be deemed to be the owner of the ship or share, nor shall the mortgagor be deemed to have ceased to be owner thereof (y). Every registered mortgagee shall have power absolutely to dispose of the sliip or share in respect of which he is registered, and to give effectual receipts for the purchase-money ; but where there are more persons than one registered as mortgagees of the same ship or share, a subsequent mortgagee shall not, except under the order of a court of competent jurisdiction, sell the ship or share without the concurrence of every prior mortgagee (2). A registered mortgage of a ship or share shall not be affected by any act of bankruptcy committed by the mortgagor after the record of the mortgage, notwithstanding that the mortgagor at the commencement of the bankruptcy had the ship or share in his possession, order or disposition, or was reputed owner thereof (a), and the mortgage shall be preferred to any right, claim, or interest of the bankrupt's other creditors or their trustee (6). The transfer of a mortgage of a ship or a share therein is required to be made in the form prescribed by the Act, and to be registered (c). And where a registered mortgage is discharged, the registrar shall, on production of the mortgage deed with a receipt for the mortgage money endorsed thereon, duly signed and attested, make an entry of the discharge ((/) Stat. 57 & 58 Vict. c. 60, (2) Stat. 57 & 58 Vict. c. 00, s. :U, replacing 17 & 18 Vict. s. 35, replacing 17 & 18 Vict, c. 104, s. 70. See European Co. c. 104, .s. 71. V. Royal Mail Co., 4 K. & J. 076 ; (a) AnU, p. 1 12. Dickinson v. Kitchen, 8 E. & B, (h) Stat. 57 & 58 Vict. c. 00, 789; Marriott v. The Anchor s. 30, replacing 17 & 18 Vict. Reversioimry Company, Limited. c. 104, s. 72. 2 Giff. 457 ; Collins v. Lamport, (c) Stat. 57 & 58 Vict c. 00, 4 De 0. J. & S. 500 ; Riisden v. bs. 37, 05 (2), replacing 17 & 18 Pope, L. K. 3 Ex. 2()9 ; The Vict. c. 104, .s. 73, and 18 & 19 Ilcuthcr Bell, 1901, P. 143, 272; Vict. c. 91, s. 11. The Manor, 1907, P. 339. 123 124 OP CHOSES IN POSSESSION. of the mortgage in the register book ; and on that entry being made, the estate, if any, which passed to the mortgagee, shall vest in the person in whom (having regard to intervening acts and circum- stances, if any) it would have vested if the mortgage had not been made (d). A mortgage of a ship passes to the mortgagee, under the word " ship," all articles necessary to the navigation of the ship or the prosecution of the adventure, which are on board at the date of the mortgage ; and will furtlier pass to the mortgagee all articles which may subsequently be brought on board in substitution for them (e). The Merchant Shipping Act contains provisions enabling any registered owner to empower any other person or persons to sell any entire ship, or to mortgage any ship or any share therein, at any place out of the country or possession in which the Certificates of port of registry of the ship is situate. For this mortgage purpose what are called certificates of sale or mort- gage are granted by the registrar on the conditions mentioned in the Act(/). Besides requiring the registration of absolute conveyances, mortgages and transfers of mortgage of ships, the Act further provides that the transmission of the property or of the interest of a mortgagee in any registered ship or share therein on marriage, death or bankruptcy or by any lawful means other than a transfer under the Act, shall be authenticated and registered in manner therein prescribed (g). The above are the (d) Stat. 57 & .58 Vict. c. CO, (g) Stat. 57 & 58 Vict. c. 60. s. .S2, replacing 17 & 18 Vict. ss. 27, 38, replacing 17 & 18 Vict. c. 10-4, s. 68. c. 104, ss. 58, 74. On such trans- (e) Goltman v. Chamberlain, 25 mission of the property in a ship Q. B. D. 328. or share to a person not qualitied (/) Stat. 57 & 58 Vict. c. 60, to own a British ship, he may ss. 39 — 46, amended by 6 Edw. obtain an order for sale thereof ; VII. 0. 48, s. 52, and replacing see s. 28 of the Act of 1894, 17 & 18 Vict. c. 104, ss. 76 sq. replacing a. 62 of the Act of See Orr v. Dickinson, John. 1. 1854. OF SHIPS. 1'25 principal provisions of the Act so far as relate to the conveyance of ships. For more particular informa- tion the reader must be referred to the Act itself which is of great length. It may, however, be added, that all instruments used in carrying into effect that part of the Act, which relates to the registration Exempt from of British ships and the transfer or mortgage thereof, ^ *'"^ " ^' are exempt from stamp duty (h). And that, if any Registration conveyance of a ship be procured to be registered procured by by fraud, the court may rectify the register by ordering the entry to be expunged (i). Transfers or assignments of any ship or vessel or any share thereof are excepted from the provisions of the Bills of Sale Acts (j). A ship, or any share therein, may be taken in execution and sold under the writ of fi. fa. {k). And a trustee in bankruj)tcy may transfer the bankrupt's share in ships to the same extent as the bankrupt himself might have trans- ferred the same (l). The most striking difference that there is in point Ships subject of law between ships and other chattels is owing [o^*^'"'*'™*^ to the fact that ships have been subject to maritime law, as administered by the High Court of Admiralty, of which the jurisdiction is now vested in the High Court of Justice. According to the law administered under the admiralty jurisdiction of the Court, there arc certain claims which attach upon a ship herself, irrespective of the ownership thereof. Such claims may be enforced by proceedings and process in rem, Admiralty action in rem. {h) Stat, r-,! & 58 Vict. c. GO, 1 K. B. 571. s. 721, replacing 17 & 18 Vict. (;) Stats. 41 & 42 Vict. c. 31, c. 104, s. 9 ; cf. Deddington s. 4 ; 45 & 4(5 Vict. c. 43, s. 3 • Steamship Co., Ld. v. Inland ante, pp. 75, 84, 95—98. Nevcnue Cominlssioners, 1911, {k) Ante, p. 107; Hariri/ v 2 K. B. 1001 (debcnttnc of a Harle;/, 11 Jr. Ch. 451; The shipping company creating a Gemma, 1899, P. 285. marketable security must bo (l) Stat. 46 & 47 Vict. c. 52, stamped as such). s. 50, sub-s. 3. (0 Bronk v. Broomhall, 1006, 126 OF CHOSES IN POSSESSION. Maritime lien. Collision. Salvage. that is, by an action in the Admiralty Division arresting the ship herself when lying at a port within the jurisdiction, and by sale of the ship, and application of the proceeds of sale in default of the owner's appearance to answer for the demand (w). One foundation of proceedings in rem against a ship is a maritime lien, which is not a mere right to retain possession, like a common law lien (n), but is a claim or privilege upon a thing to be carried into effect by legal process. This claim or privilege travels with the thing into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached (o). Collision {p) at sea, for which the shipowner is responsible, gives rise to a maritime lien for damages attaching upon the ship in fault ; and such a lien may be enforced against the ship, even though she may have been sold after the collision to a bond fide purchaser without notice of any such liability (g). Salvage services rendered to (m) The Tremont, 1 W. Rob. 163, 164 ; The Westmoreland, 4 Notes of Cases, 173 ; Castrique v. Imrie, L. R. 4 H L. 414 ; Rules of the Supreme Court, 1883, Order XIII.. rules 12. 13 ; The Nautik, 1895, P. 121 ; The Crimdon, 1900, P. 171 ; The Burns, 1907, P. 137. (?i) See ante, pp. 62 — 68. (o) Harmer v. Bell {The Bold Buccleuch), 7 Moo P. C. 267, 284, 285; The Hcnrich Bjorn, 10 P. D. 54 ; The Ripon CiUj, 1897, P. 226, 241 ; Currie v. McKnight, 1897, A. C. 97; The Tergcste, 1903, P. 27 : see The Tasmania, 13 P. D. 1 10 ; The, Kong Magnus, 1891, P. 223. The better opinion maritime lien ujaon a ship herself, as distinguished from a claim against her owner, is a late development of English Ad- miralty law out of the early practice of arresting the goods within the Admiral's jurisdiction of any person sued in the Admiralty Court in order to compel his appearance ; Mars- den, Select Pleas of the Court of Admiralty (Selden Socy,) i., Ix.xi.. Ixxii. ; The Dictator, 1892, P. 304, 311 ; The Ripon City, 1897, P 226, 239 sq. ; Marsden on Collisions, 70 sq., 6th ed. ; The Dupleix, 1912, P. 8, 13. (;)) See The Normandy, 1904, P. 187. seems to be that the doctrine of a {q) Harmer v. Bell, tibi sup. ; The Nymph, Swab. 86 ; The Charles Amelia. L. R. 2 A. & E. 330 ; The Utopia, 1893, A. C. 492, 499 ; see The Henrich Bjorn, 11 App. Cas. 282—284; The Zeta, 1893, A. C. OF SHIPS. 127 a ship also give rise to a maritime lien (r). And a maritime lien attaches upon a ship for mariners' wages (s). A similar lien has been given by statute for a master's wages (t), and his disbursements for which the shipowner is liable (u). But it is now settled that by the law of England there is no maritime lien for necessaries supplied to a ship (x). No admiralty action in rem can be maintained against any ship (whether man-of-war or not) which is the property of the Crown (y) or of any foreign sovereign (z) ; and such vessels cannot be made subject to any maritime lien. A maritime lien upon a ship may also be created 408. By the admiralty as well as by the common law of England the owner of a ship was fully responsible for all damages caused by her improper navigation. But other countries having in modern times introduced the rule, that the shipowner's liability in such cases should be limited to the vahie of the ship and freight, the principle of limitation of liability was adopted in this country by the legis- lature ; and the shipowner's liability, on events occurring without his actual fault or privity, is now limited by statute to an amount varying with the tonnage of his vessel. See Lloyd v. Guibert, L. R. 1 Q. B. 115 ; The. Dictator, 1892, P. 304, 313— 321 ; stat. 57 & 58 Vict. c. 00, s. 503, amended by 03 & 64 Vict. c. 32, ss. 1, 3, and 6 Edw. VII., c. 48, ss. 09, 71, and replacing 17 & 18 Vict. c. 104. ss. 504, 500, amended by 25 & 26 Vict. c."03, s. 54; and 53 Geo. III. c. 159; Marsdcn on Collisions, 140 sq., 0th ed. ; The. Hopper, No. 66, 1908, P. 126; The Dupleir., 1912, P. 8. Mariners' and master's wages. Kmg's and foreign sovereign's ships exempt. (r) See The Henrich Bjorn, 10 P. D. 44, 52 ; 11 App. Cas. 270, 279, 282. (s) Abbott on Merchant Ship- ping, 476, 5th ed. ; 283 sq., 14th ed. ; The Elm, 8 P. D. 39, 129 ; R. v. Judge of City of London Court, 25 Q. B. D. .339. (0 Stat. 57 & 58 Vict. c. 00, s. 167 (1, 3), replacing 17 /, 1897, P. 220. (x-) The Neptune, 3 Knapp. 94 ; The Ocean, 2 W. Rob. 308 ; The India, 32 L. J. N. S., P. M. & A. 186 ; The Rio Tinto, 9 App. Cas. 350 ; The Henrich Bjorn, 10 P. D. 44; 11 App. Cas. 270. The civil law and the laws of those countries which have adopted its principles, give a maritime lien for necessaries supplied to a ship ; Abbott on Merchant Shipping, 108, 5th ed. ; 177, 14th ed. ; 'l Maude & Pollock on Merchant Shipping, 90, 4th ed. The Ameri- can law gives a maritime lien for necessaries supplied to foreign ships ; see The General Smith, 4 Wheaton, 438 ; The Brig Nestor, 1 Summer, 73. The Scotch mari- time law appears to be the same as our own ; Currie v. McKnight, 1897, A. C. 97. ()/) The Scotia, 1903, A. C. 501. (;) The Parlcmcnt Beige, 5 P. U. 197 ; The Jassy, 1900, P. 270. 128 Bottomry. Maritime interest. OF CHOSES IN POSSESSION, by a bottomry bond. Bottomry is a contract whereby a vessel is hypothecated by her owner or master for the payment, in the event of her voyage terminating successfully, of money advanced to him for the necessary use of the vessel, together with interest ; which interest in consideration of the risk incurred, is generally far beyond five per cent., formerly the legal rate, and is known as maritime interest. The name of bottomry is given to such a contract because the ship's bottom or keel is said to be pledged thereby (a). It is of the essence of bottomry that the lender should take upon himself the maritime risk ; that is, that the money should be repayable only in the event of the ship's safe arrival (a). A bottomry bond does not pass the property in the ship, but attaches a claim upon her enforceable, hke any other maritime lien, by an admiralty action in rem (6). Bottomry bonds are usually given by the masters of ships at foreign ports to raise money not procurable otherwise for necessary repairs to the vessel (c). The master of a ship may charge her with the repayment of money advanced upon bottomry in a case of necessity, but not otherwise ; and only after communicating with her owner, if communication be practicable (d). And to give validity to a bottomry bond given by a ship's master there must be not only the necessity of obtaining what is requisite to enable the ship to proceed on her voyage, but also the necessity of raising the money upon bottomry on account of the impossibility of procuring it in any other way (e). A bottomry (a) The Atlas, 2 Hagg. 48, 52, 57, 73 ; Stainhank v. Penning, 1 1 C. B. 51, 87—89 ; Stainhank v. Shepard, 13 C. B. 418. (b) Stainhank v. Shejmrd, 13 C. B. 418, 441, 442. (c) The Zodiac, 1 Hagg. 325. (d) Kleinwort db Co. v. Caissa Maritima of Genoa, 2 App. Cas. 156. (e) The Nelson, 1 Hagg. 169, 175 ; The Reliance, 3 Hagg. 74 ; The Prince of Saxe Cohourg, 3 Moo. P. C. 1 ; The Karnak, L. R. 2 A. & E. 289, 2 P. C. 505 J The Pontida, 9 P. D. 102,177. OF SHIPS. 129 bond given by the owner of a ship must be based on a hke necessity in order to create a Hen giving the bondholder priority to mortgagees (/). Either the owner or master may make himself personally liable as well as the ship upon a bottomry contract (g). But the master has no authority to jnake the owner, as well as the ship, liable upon a bottomry bond ; he can bind the ship only when Salo of ship the necessity arises {h). The master of a ship has '^^ master. no authority to sell her except in a case of urgent necessity (i). It may be mentioned that the general principles Priority of on which the priority of competing maritime liens "^''^"^"^f IT J jr o hens between will be determined {k) are that, of hens arising themselves. ex contractu or quasi ex contractu for services voluntarily rendered to the ship, the last created in order of time shall first be satisfied, whilst hens arising ex delicto for damage done by the ship rank in the order in which they were in point of time incurred, and that for the purposes of the attach- ment of a maritime lien, the res affected thereby is the ship with all the claims thereon, whether by way of mortgage or previous maritime Hen, which (/) The Duke of Bedford, 2 Hagg. 294; The Royal Arch, Swab. 269. ig) Willis V. Palmer, 7 C. B. N. S. .360, 301 ; Williams & Bruce's Admiralty Practice, 47, n. (6), 3rd ed. (h) tSlainbanh v. Fenning, 11 C. B. 51, 88, 89; Stainbank v. Shepard, 13 C. B. 418. The master may, however, render the owner personally liable to repay money advanced on bottomry, by giving bills of exchange drawn on the owner . 2S. H. & N. 220; see Williams's (o) Be Cooper, 20 Ch. 1). (ill ; Conveyancing Statutes, 150 ; Be Be Inghnvi, 1803, 1 Ch. 352, 361. Ingham, 1893, 1 Ch. 352, 361. (?^) "27 Hen. VIII. c. 10. (I) Head v. EcjcrUm, 3 P. W. (q) 1 Sand. Uses, 4th cd, 119; 280 ; Heath v. Crealock, L. R. 10 5th od. 117. 140 OF CHOSES IN POSSESSION. former conveyance should be considered as powerful enough to do the same (r) ; and it has accordingly been so decided in a case in Ireland {s). The tenant of an estate in fee simple in lands possesses the highest interest which the law of England allows to any subject ; and such a tenant possesses also an absolute property in the title deeds, which he may destroy at his pleasure, or sell When the for the value of the parchment (t). But if the lands settled '^'^ to which deeds relate should be settled on any person for life or in tail, a qualified ownership will arise with respect to the deeds, different in its nature from that simple property which is usually held in chattels personal. As the lands are now held for a limited estate, so a limited interest in the deeds belongs to the tenant. The tenant for life or in tail, when in possession of the lands, being the freeholder for the time being, is entitled also to the possession of the deeds (u) ; whereas the tenant for a mere term of years of whatever length, not having the freehold or feudal possession of the lands, has no right to deeds which relate to such freehold {x) ; although deeds relating only to the term belong to such a tenant, and will pass, without any express grant, to the assignee of the term (y). The tenant for life or in tail in possession, though entitled to the possession or custody of the deeds which relate to the inheritance, has no right to injure or part (r) Sugd. Vend. & Pur. 366, held that an equitable tenant for 13th ed. ; 440, 14th ed. ; Co. life is entitled to the custody of Litt. 6 a, n. (4). the title deeds ; lie Burnahy's (s) Malone v. Minoughnn, 14 Settled Estates, 42 Ch. D. 621 ; Ir. Com. Law. Rep. 540, dissen- Be Wythes, 1893, 2 Ch. 369. tiente Haves, J. (x) Churchill v. S7)iall, 8 Ves. (t) Cro.^Eliz. 496. 323 ; Harper v. Faulder, 4 Mad. {u) Fordv. Peering, 1 Ves. jun. 129, 138 ; 20 R. R. 279 ; Wise- 76 ; Strode v. Blackhurne, 3 Ves. man v. Westland, 1 You. & Jer. 225; Garner v. Hannynglon, 22 117 ; 30 R. R. 765; Hotham v. Beav. 627 ; Allwood v. Hey wood, Somerville, 5 Beav. 360. 1 H. & C. 745 ; Leathes v. {y) Hooper v. Bamshottom, 6 Leathes, 5 Ch. D. 221. It is now Taunt. 12. OF CHATTELS WHICH DESCEND TO THE HEIR. 141 with them (2) ; he has an interest in the title deeds correspondent only to his estate in the lands ; and if he should part with the deeds, even for a valuable consideration, the remainder-man, on coming into possession of the lands, will nevertheless be entitled to the possession of the deeds, just as if the tenant for life or in tail had kept them in his own custody {a). Heir-looms, strictly so called, are now very seldom Heir-looms. to be met with. They may be defined to be such personal chattels as go, by force of a special custom, to the heir, along with the inheritance, and not to the executor or administrator of the last owner (6). The owner of an heir- loom cannot by his will bequeath the heir-loom, if he leave the land to descend to his heir ; for in such a case the force of the custom will prevail over the bequest, which, not coming into operation until after the decease of the owner, is too late to supersede the custom (c) But the owner of an heir-loom may dispose of it in his lifetime (d). According to some authorities heir-looms consist only of bulky articles, such as tables and benches fixed to the freehold (e) ; but such articles would more properly fall within the class of fixtures, of which we shall next speak. The ancient jewels of the crown are heir-looms (/). Crown jewels. And if a nobleman, knight or esquire be buried in a church, and his coat armour or other ensigns of Coat armour. honour belonging to his degree be set up, or if a tombstone be erected to his memory, his heirs may Tombstone, maintain an action against any person who may take (z) Bro. AI)r. tit. Charters de Terre, pi. 30. As to procUiftion sec Davies v. Enrl of Dy-<(irt, 20 Bcav. 405 ; Williams' Coiivey- aneing Statutes, 13. (rt) Davies v. Vernon, (^. B. 443 ; Easton v. London, 12 W. R. 53 ; 33 L. J. Exeh. 34. (h) See Co. Litt. 18 b. ; Pol- (jrenn v. Feara, 1 Gal. xxxix. ; 1 Vern. 273. (c) Co. Litt. 185 b. (d) 2 Black. Comm. 429. (e) Spcliiian's (Jlossary, voce Heir-Tiooni. See W'ms. Exors. , 720 xq., 7th ed. ; 545, 10th ed- (/) Co. Litt. 18 b. 142 OF CHOSES IN POSSESSION. Deed boxes. Popular use of the term " heir-loom.' or deface them (g). The boxes in which the title deeds of land are kept are also in the nature of heir-looms, and will belong to the heir or devisee of the land ; for such boxes " have their very creation to be the houses or habitations of deeds " (h) ; and accordingly a chest made for other uses will belong to the executor or administrator of the deceased, although title deeds should happen to be found in it. It appears that heir-looms and things in the nature of heir-looms that would descend to the heir along with certain land, will now devolve in the same way as the land (i). In popular language the term " heir-loom " is generally applied to plate, pictures or articles of property which have been assigned by deed of settlement or bequeathed by will to trustees, in trust to permit the same to be used and enjoyed by the persons for the time being in possession, under the settlement or will, of the mansion-house in which the articles may be placed. Of this kind of settlement more will be said hereafter {k). Fixtures. Fixtures are such movable articles or chattels personal as are fixed to the ground or soil, either directly or indirectly by being attached to a house or other building. The ancient common law, regarding land as of far more consequence than any chattel which could be fixed to it, always considered everything attached to the land as part of the land itself, — the maxim being quicquid plantatur solo, solo cedit (l). Hence it followed that houses them- selves, which consist of aggregates of chattels personal (namely, timber and bricks) fixed to the ig) Co. Litt. 18 b. (7i) Wentworth's Office of an Executor, 157, 14th ed. {i) Ante, pp 2, n. (i), 137. (k) See poit, Part IV. ch. i. \l) See 4 Rep. 64 a ; 1 Lord Raym. 738 ; Machintosh v. Trot- ter] 3 M. & W. 184, 186 ; Wms. on Exors., 727 sq., 7th ed. ; 551 sq., 10th ed. ; Re Chesterfield'' s Settled Estates, 1911, 1 Ch 237, 241 ; ante, p. 25, n. (m). 1 OF CHATTELS WHICH DESCEND TO THE HEIR. 143 land, were regarded as land, and passed by a con- veyance of the land without the necessity of express mention ; and this is the case at the present day (m). So now, a conveyance of a house or other building, whether absolutely or by way of mortgage, and whether taldng effect at law or in equity only (w), will comprise all ordinary fixtures, such as stoves, grates, shelves, locks, &c. (o), and also fixtures erected for the purposes of trade (p), without any express mention, unless an intention to withhold the fixtures can be gathered from the context (q). And where fixtures are attached by or with the concurrence of a mortgagor of land to any building or soil comprised in the mortgage, they become subject to the mortgagee's security, whether it were a legal mortgage or merely an equitable charge (r). So on the decease of a tenant in fee simple, the devisee of the house, or the heir at law in case of intestacy, wiU in general be beneficially entitled to (to) See WilUams, R P. 34, B. & C. 76 ; S. C. 3 Dowl. & Ry. 21st ed. 255 ; Longstuff v. Meagoe, 2 A. & (n) Ex parte Barclay, 5 Dc G. E. 167 ; Hitchrnan v. Walton, 4 M. & G. 403 ; Mcux v. Jacobs, L. M. & \N. 409 ; Ex parte Barclay, R. 7 H. L. 481 . It has been held 5 De G. M. & G. 403 ; Mather v. that, where fixtures are attached Eraser, 2 K. & J. 536. to land in such circumstances {p) Clitnie v. Wood, L. R 3 that some other person than the Ex. 257 ; 4 Ex. 328 ; Holland v. landowner has the right in equity Hodgson, L. R. 7 C. P. 328 ; to remove them (as under a hire- Meux v. Jacobs, L. R. 7 H. L. purchivse agreement), this right 481; Southport and West Lanca- of removal will be preferr(;d in shire Banking Co. v. Tfiompson, equity to the claim of a third 37 C'h. D. 64 ; Re Yates, 38 Ch. person entitled to the land under D. 112. a subsequent conveyance taiw, ZrfZ., 1907, 1 Ch. 575. Such N.S.I 15; C'ullwick v. Swindell, a right of removal would not, L. R. 3 Eq. 249 ; Longbottom v however, taivc priority over the Berry, L. R. 5 Q. B. 123 ; Hobson right of a third person tailing the v. Gorrin/je, 1897, 1 Ch. 182 ; land under a subsequent con- Monti v. Barnes, 1901, 1 Q. B. veyance at laio, unless he took 205 ; Reynolds v. Ashby, 1904, Avith notice of it ; see S.C. ; A. C. 466 ; Ellis v. Glover and ante, p. 27, Williams, R. P. Hobson, Ld., 1908, 1 K. B. 388 ; 181—183, 571, 572, 21st ed. cf. ante, n. (re). (o) Colegrave v. Dias Santos, 2 144 OF CHOSES IN POSSESSION. the fixtures set up in it (s). These rules, however, apply only to things set up on land as fixtures and so as to be an improvement to the inheritance, and not to chattels temporarily affixed to land or a building in their owner's possession for their more convenient use as chattels : but it is sometimes difficult to determine into which class some particular thing attached to land should fall (i). Fixtures of tenants for years. Agricultural fixtures. The ancient rule respecting fixtures has been greatly relaxed in favour of tenants for terms of years, who are now permitted to remove articles set up by them for the purposes of trade or of ornament or domestic convenience {u), provided they remove them before the expiration of their tenancy (x). But the old rule long prevailed with regard to agricultural fixtures, which, though set up by the tenant, became, by being fixed to the soil, the property of the landlord (y). But by the Landlord and Tenant Act, 1851 {z), any farm or other build- ing, engine or machinery erected with the consent in writing of the landlord for the time being, either for agricultural purposes or for the purposes of trade and agriculture, shall be the property of the tenant, and shall be removable by him on giving to the landlord or his agent one month's previous (s) Shep. Touch. 470; see 1 Wms. Exors. 731 sq., 7th ed. ; 555 sq., 10th ed. ; Elwes v. Maw, 2 Smith, L. C. and notes thereto ; Re Chesterfiehr s Settled Estates, 1911, 1 Ch. 237; ante, p. 137. [t] See cases cited in notes (p), (r), above; Re De Falbe, 1901, 1 Ch. 523, affd. nom. Leiyh v. Taylor, 1902, A. C. 157 ; Lyon v. London Citi/ cb Midland Bank, 1903, 2 K. B. 135 ; Reynolds v. Ashhy, 1903, 1 K. B. 87 ; 1904, A. C. 466 ; Crossleij, Bros., Ld. v. Lee, 1908, 1 K. B." 86. (ti) Grymes v. Boweren, 6 Bing. 437 ; 31 R. R. 460 ; Lambourn v. McLellan, 1903, 2 Ch. 268. (.x) Lyde v. Russell, 1 B. & Ad. 394 ; 35 R. R. 327 ; Weeton v. Woodcock, 7 M. & AV. 14 ; Leader V. Homewood, 5 C. B. N. S. 546 ; Pugh V. Arton, L. R. 8 Eq. 626 ; Ex parte Stephens, 7 Ch. D. 127 ; Ex parte Brook, In re Roberts 10 Ch. D. 100; Leschallas v. Woolf, 1908, 1 Ch. 641 ; see Re Glasdir Copper Works, Ld., 1904, 1 Ch. 819. (V) Elwes V. 3Iaw, 3 East, 38 ; 6 R. R. 523 (z) Stat. 14 & 15 A'ict. c 25, s. 3. I OF CHATTELS WHICH DESCEND TO THE HEIR. 145 notice in writing of his intention so to do, subject to the landlord's right to purchase the same by valuation in the manner provided by the Act. And now by the Agricultural Holdings Act, 1908 (a). Agricultural any engine, machinery, fencing or other fixture ^°^ ^^g affixed to a holding within the meaning of the Act (6) by a tenant and any building erected by him thereon, for which he is not under this Act or otherwise entitled to compensation (c), and which is not so affixed or erected in piu-suance of some obligation in that behalf, or instead of some fixture or building belonging to the landlord, shall be the property of and be removable by the tenant before or within a reasonable time after the termination of the tenancy. But before the removal of any fixture or building, the tenant must pay all rent owing by him, and satisfy all his other obligations to the landlord in respect to the holding ; he must not, in such removal, do any avoidable damage to any other building or other part of the holding, and he must make good all damage so occasioned thereby ; and he must not remove any fixture or building without giving one month's previous notice in writing to the landlord of his intention to remove it. And at any time before the expiration of such notice, the landlord may elect to purchase any fixture or building comprised therein ; when the same shall be left by the tenant, and shall become the property of the landlord, who shall paj^ to the (a) Stat. 8 Edw. VII. c. 28, garden, and which is not let to s. 21 (1), replacing the Agricul- the tenant during his eontinu- tural Holdings (England) Act, ance in any oflice, ai)i)<)intinent, 1883, stat. 4G & 47 Vict. c. 01, or emploj-ment licld under the s. 34. landlord ; stat. 8 Edw. VII. (b) In this Act "holding" c. 28, s. 48 (1). The provisions means an}- parcel of land held by in the text do not a])ply to any a tenant which is either wholly fixture or building ailixed or agricultural or ^^holly pastoral, erected before the 1st Jan., or in part agricultural and as to 1884 ; sect. 21 (2). the residue pastoral, or in whole (c) See ss. 1 — 9 ; A\'illianis, or in part cultivated as a market R. P. 530 — 532, 21st ed. w.p.p. 10 146 OF CHOSES IN POSSESSION. tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by arbitration (d). These provisions apply equally to a fixture or building acquired by a tenant since the 31st December, 1900 (e). Landlord's interest in fixtures removable by tenant for years. Nature of the tenant's interest in such fixtures. Fixtures set up and removable by a tenant for years are part of the landlord's reversion, so long as they remain affixed to the land ; and it is said that in strictness of law the tenant has only the right to remove them before the end of the term(/). In virtue of this right, however, the tenant is enabled to sell (g) or mortgage (h) such fixtures as his fixtures, either separately from the land, to which they are attached, or together with his own interest in the land. And such fixtures can be seized, sold and severed in execution of a writ oi fi. fa. against him {i) ; and they will pass in case of his bank- ruptcy to the creditors' trustee (k). But if the trustee in bankruptcy disclaim the lease (l), he will lose his right to sever the fixtures (m). It has been held that fixtures of this kind, while remaining actually attached to the land, though removable, are not the tenant's goods and chattels strictly so called (w), nor an interest in land ; and that they might therefore well be sold by oral agreement. (d) Stat. 8 Edw. VII. c. 28, s. 21 (1). (e) Sect. 21 (2), replacing 63 6 64 Vict. c. 50, s. 4. (/) Heaj) V. Barton, 12 C. B. 274, 278 ; Gibson v. Hammer- smith By. Co., 32 L. J. Ch. 337, 342, 343 ; Meiix v. Jacobs, L. R. 7 H. L. 480, 490, 491 ; Lee v. GasMl, 1 Q. B. D. 700, 702. The landlord cannot distrain on them for rent ; Darby v. Harris, 1 Q. B. 895 ; Crossley Bros., Ld. V. Lee, 1908, I K. B. 86; Pro- vincial Bill Posting Co. v. Low Moor Iron Co., 1909, 2 K. B. 344; see o«/e, p. 104, and Table annexed. (g) Hallen v. Runder, I C. M. & R. 266. (A) Metix V. Jacobs, L. R. 7 H. L. 481. (i) Poole's case, Salk. 368 ; see ante, p. 107. {k) Lee v. Gaskell, 1 Q. B. D. 700 ; Lamboum v. McLellan, 1903, 2 Ch. 268. (l) See AViUiams, R. P. 522, 21st ed. (m) Ex parte Stephens, 1 Ch. D. 127 ; Ex parte Brook, 10 Ch. D. 100. (n) Lee V. Risdon, 7 Taunt. 191. OF CHATTELS WHICH DESCEND TO THE HEIE. 147 without any of the formaUties prescribed by the 4th or the 17th section of the Statute of Frauds (o). But goods, as defined in the Sale of Goods Act, 1893 (p), inchide things attached to or forming part of land which are agreed to be severed before sale or under the contract of sale ; so that sales of such things so to be severed of the value of 10/. and upwards appear now to be regulated by the 4th section of that Act {q). Any instrument i7i writing, Written by which fixtures are separately assigned, or g^^^^^"^^"^ "^ charged, upon a sale or mortgage thereof, apart from separately any interest in the land to which they are attached, £°™bm'o^"'^ is a bill of sale within the meaning of the Bills of sale. Sale Acts, 1878 and 1882 (r), and must be executed and registered in the manner and form provided in those Acts, in order to attain complete validity (s). These Acts do not apply to any assignment of fixtures together with a freeJwld or leasehold interest in any land or building to which they are affixed ; except only in the case of trade machinery as defined in the Acts, which is to be deemed to be personal chattels, and whereof any disposition, which would be a bill of sale as to any other personal chattels, is to be deemed to be a bill of sale (t). But it has been decided that even such trade machinery may well pass, as an accession to the land by the mere conveyance of the land, to which it is attached, and although the land be copyhold ; and that, if such machinery be conveyed in this way and not by virtue of any express assignment thereof (o) 8tat. 29 Car. II. c. 3 ; Lee (q) See ante, p. 81 ; but cf. V. Gaskell, 1 Q. B. D. 700. See post, p. 152. as to s. 17, ante, p. 81 ; s. 4 (r) Stats. 41 & 42 Viet. c. 31, requires contracts for the sale of ss. 4, 5, 7, 8, 10, 1 1 ; 45 & 46 any interest in land to be put Vict. c. 43, ss. 3, 8, 9 ; all stated into writing and signed ; see in Apjiendix (A), pout, post. Part II., Ch. II. (s) See ante, i)p. 75, 84, 95 98. ip) Stat. 56 & 57 Vict. c. 71, {t) See stat. 41 & 42 Vict. s. til (2) ; James Jones tfc Sons, c. 31, ss. 4, 5, stated in Appendix lA. V. Tankerville, 1909, 2 Ch. (A), jmst. 440, 445, 10—2 148 OF CHOSES IN POSSESSION. Surrender of the term by the tenant. Such fixtures are an acces- sion to the land in favour of an assignee or mortgagee of the term. as a separate subject of transfer, the instrument of conveyance is not a bill of sale within the meaning of the Acts (u). If a tenant for years sell or mortgage fixtures removable by him, he cannot by surren- dering the term deprive the purchaser or mortgagee of the right to remove them within a reasonable time thereafter (v). And such fixtures, being an accession to the land, will pass, without express mention, upon any conveyance taking effect at law or in equity of the tenant's interest in the land demised to him, or will become subject to any mortgage of his interest in the land made before the fixtures were set up (x) ; so that if the tenant put up removable fixtures and then mortgage his term, or if he mortgage his term and afterwards put up such fixtures, he will have no right to remove the fixtures as against the mortgagee of the term, though they remain removable as against the landlord (y). Fixtures of tenant for life. Fixtures of tenant in fee. A relaxation of the old rule has also been made in favour of the executors of a tenant for life, who are allowed to remove fixtures set up by their testator for the purposes of trade or of ornament or domestic convenience (2). But the rule of the common law still retains much of its force as between the devisee or heir of a tenant in fee simple and his executor or administrator (a). Thus a tenant for (u) Be Yates, 38 Ch. D. 112 ; Be Brooke, 1894, 2 Ch. 600 ; cf. Small V. National Provincial Bank of England, 1894, 1 Ch. 686. {v) London and Westminster Loan and Discount Co. v. Drake, 6 C. B. N. S. 798; Saint v. Pilley, L. R. 10 Ex. 137; Be Glasdir Copper Warks, Ld., 1904, 1 Ch. 819, 824; see WiUiams, R. P. 526, 627, 21st ed. (x) Ante, p. 143, notes (n), (o). (y) Beynolds v. Ashhy, 1903, 1 K. B. 87, 99, affd. 1904, A. C. 466. (2) Lawton v. Lawton, 3 Atk. 14 ; Be De Falbe, 1901, 1 Ch. 523, affd. nom. Leigh v. Taylor, 1902, A. C. 157 ; Be Hvlse, 1905, 1 Ch. 406 ; 1 Wms. Exors. 741 sq., 7th ed. ; 563 sq., 10th ed, (a) See 1 Wms. Exors. 731 sq., 7th ed. ; 555 sq., 10th ed. ; Nor- ton V. Dashwood, 1896, 2 Ch. 497, OP CHATTELS WHICH DESCEND TO THE HEIR. 149 years may remove ornamental chimney-pieces set up by him during his tenancy (b) ; but if erected by a tenant in fee simple, they will pass with the house to the devisee or heir (c). So machinery employed in carrying on iron works or collieries may be removed by a lessee for years, if erected by him ; but if erected by a tenant in fee simple, such machinery, even though removable without injury to the freehold, will belong to the heir or the devisee of the land (d). However it seems that pier glasses fixed by nails, and not let into panels, and hangings fastened up for ornament, will now belong to the executor or administrator of a tenant in fee simple as part of his personal estate (e). Where fixtures are demised to a tenant along When fix- with the house, mill or other building in which they demised^ may happen to be, the property in the fixtures still remains in the landlord, subject to the tenant's right to the possession and use of them during his term ( / ) ; and if they should be severed from the building by the tenant or any other person, or should be separated by accident, the landlord will acquire an immediate right to the possession of them (g). In this respect they are subject to the same rules as timber, which, as we shall see, is equally a part of the inheritance until severed, and when cut becomes the personal property of the owner of the fee {h). Fixtures, which would descend with the house or building to the heir of the owner 500 ; Re Di Fame, ubi sup. ; Re Abr. 430, pi. 7 ; S. C. 2 Frcem. Whaley, 1908, 1 Ch. 65; Ra 2t!); Re Dz Falhe. ubi sup. ; cf. CheUerfield\s Settled Estates, mil, Re Whaley ; Re Chesterfield" s 1 Ch. 237. Settled Estates, uhi sup. (b) Bishop V. Elliot, 11 Ex. (/) Boijdell v. WMirhiel, 1 113. C. M. &' R. 177; Hitchmnn v. {r.) Dudley v. Warde, Amb. Walton, -t M. & W. 409. 113. (g) Farrant v. Thompson, 5 (d) Fisher v. Dixmi, 12 CI. & B. & Aid. 826; 24 R. R. 571. Fin. 312. (h) Re Ainslie, 30 Ch. D. 485. (e) Squire v. Mayor, 2 Eq. Ca. 150 OF CHOSES IN POSSESSION. of the fee on intestacy, are not in fact his goods and chattels properly so called {i). Chattels Chattels vegetable consist, as their name imports, vege a e. ^^ movable articles of a vegetable origin, such as timber, underwood, corn and fruit. All these articles, so long as they remain unsevered from the land, are for many purposes considered as part of it, and are regarded as real, and not as personal, estate accordingly (k) ; and they will pass by a conveyance or devise of the land without express mention (/). If, however, the trees should be expressly excepted out of the conveyance, they will remain the personal property of the grantor, although severed only in contemplation of law (m) ; and in like manner the trees alone may be granted by a tenant in fee simple, and will then form the personal property of the grantee, even before they are cut down (n). But if a tenant of lands in fee simple should die without having sold or devised them (o), the law then draws a distinction between such vegetable products as are the annual results Emblements, of agricultural labour, and such as are not. The former class are called by the name of emblements, and the right to reap them belongs to the executor or administrator of the deceased in exclusion of the heir {p) ; whilst the latter class descend to the heir along with the land [q). The reason of the distinc- tion appears to be that as annual crops are mainly the result of labour incurred at the expense of the {i) Winn v. Ingilby, 5 B. & Aid. 625 ; 24 R. R. 503 ; Hallen V. Rxmder, 1 C. M. & R. 266 ; Lee V. GasMl, 1 Q. B. D. 700. {k) lie Ainslic, 30 Ch. D. 485. {I) Com. Dig. tit. Biens (H). (m) HerlakenderCs case, 4 Rep. 63 b. {n) AVentworth's Office of an Executor, 14th ed. 148 ; 1 Wms. Exora. 707, 7th ed. ; 534, 10th ed. ; Marshall v. Green, 1 C. P. D. 35 ; James Jones ct- t^ons, Ld. V Tankerville, 1909, 2 Ch. 440. (o) As to a devisee, see Budge V. Winnall, 12 Beav. 357 ; Cooper V Woolfit, 2 H. & N. 122. (p) Com. Dig. tit. Biens (G) ; 1 Wms. Exors. 709 sq., 7th ed. ; 536 sq., 10th ed. {q) See ante, p. 137. OF CHATTELS WHICH DESCEND TO THE HEIR. 151 owner's personal estate, his personal estate ought to reap the benefit of the crop which results (r). Accordingly crops of corn, and grain of all kinds, flax, hemp, and everything yielding an artificial annual profit produced by labour, belong to the executor or administrator as against the heir ; whilst timber, fruit trees, grass, and clover, which do not repay within the year the labour by which they are produced, belong to the heir as part of the land (s). The right to emblements also belongs to the executor or administrator of a tenant for life {t), and to a tenant at will if dismissed from his tenancy before harvest {u). The claims of tenants at rack rent, whose tenancies may determine by the death or cesser of the estate of tenants for life, or for any other uncertain interest, are now provided for by the Landlord and Tenant Act, 1851, giving the tenants at rack rent a right to contmue to hold until the expiration of the current year of their tenancy {x). Growing crops, which are emblements, are Emblements iij. 1 J XV, •xir^i'/\ seizablc under seizable at common law under the writ oi ji. ja. [y) fi^j-^^ in execution of a judgment against their owner (2) : but standing timber and crops, which are not emblements, are not so seizable (a). In the Sale Sale of emblements, timber, etc. (/•) Wentworth's Office of an 56 Geo. III. c. 50. By stat. Executor, 14th ed. 147. 14 & 15 Viet. e. 25, s. 2, growing («) See Graves v. Welcl, 5 B. crops of the tenant of any farm & Ad. 105 ; 39 R. R. 419 ; ante, or lands seized and sold under a p. ] 37. writ of fi. fa are liable, so long as (/) Williams, R. P. 130, 21st they remain on such farm or cd.- lands, in default of sufficient («) Ibid. p. 500. distress of the tenant's goods, (x) Stat. 14 & 15 Viet. c. 25, to the rent accruing due to the s. 1. Sec \\'illiams, R. P. 130 landlord after such seizure and 21.st cd. sale ; see ante, p 107, n. (p). As (y) Antr, p. 107. to distraining on growing crops (2) Wharton v. Nai/lor, 12 for rent, see antr, p. 104, and Q. B. G73, 080 ; and cases cited Table annexed thereto, in next note. Such seizures are (a) Holt, C. J., Poole s case, subject to the provisions of stat. 1 Salk. 308 ; Evanf v. Roherts, 152 OP CHOSES IN POSSESSION. of Goods Act, 1893 (6), unless the context or subject matter otherwise requires, the term goods includes emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. And it appears that the sale of emble- ments (c) or of standing timber to be cut down at once is a sale of goods within the meaning of that Act {d). But it has been held that this enactment does not prevent a sale of things, which are part of the land, as of slag and cinders forming part of the soil and to be removed by the purchaser under the contract, from being a sale of an interest in land (e), if the terms of the contract require this construction to be placed upon it (/). Having regard to this decision, it appears to be a question whether a sale°^ immediately vesting the property in the purchaser of timber to be left to grow {g), or of growing crops, which are not emblements, to be left to ripen {h), or of a building to be taken down and the materials removed (i) is not still a sale of an interest in land, as it was under the previous Bills of Sale law (k). Growing crops when separately assigned cropT^"^^ or charged, and not assigned together with any interest in the land on which they grow, are personal chattels within the meaning of the Bills of Sale Acts of 1878 and 1882, and all documents, Avhich are bills of sale within the meaning of those Acts of 5 B. & C. 829, 832, 835, 841 ; (/) Morgan v. Rmsdl, 1909, 1 Jones V. Flint, 10 A. & E. 753, K. B. 357. 758, 760 ; Rodwell v. Phillips, (g) Teal v. Autij, 2 Brod. & B. 9 M. & W. 501, 505. 99 ; Scorell v. Boxall, 1 Y. & J. (h) Stat. 56 & 57 Vict. c. 71, 396. s. 62(l);seefm & 2(5 \'ict. c. son other than the occupier, the 114; and as to wild birds stats. occupier would not bo entitled 43 & 44 Vict. c. 3.5 ; 44 & 4.5 under the Act until the dcter- Vict. c. 51. mination of that contract, to (fZ) Stat. 43 & 44 Vict. c. 47, kill and take ground game on s. 1 ; see Morgan v. Jnckion, such land ; see s. 5. 1895, 1 Q. B. 885 ; Stariton v. (/) Stat. 23 & 24 Vict. c. 90. Brown, 1900, I Q. B. 671 ; Sher- 166 OF CHOSES IN POSSESSION. Lord of a manor. Property in game. thereon {g). And the lord of any manor or reputed manor has the right to pursue and kill the game upon the wastes or commons within the manor, and to authorize any other person or persons who shall have obtained licences to kill game to enter upon such wastes or commons for the same purpose (h). When game or other wild animals were killed on any land by any other person than the rightful owner (i), the law, with respect to the property in the game, was formerly as follows : If a man started any game within his own grounds and followed it into another's, and killed it there, the property remained in himself. And so if a stranger started game in one man's chase or free warren, and hunted it into another liberty, the property continued in the owner of the chase or warren ; this property arising from privilege, and not being changed by the act of a mere stranger. Or if a man started game on another's private grounds, and killed it there, the property belonged to him on whose ground it was killed. Whereas, if after being started there, it was killed in the grounds of a third person, the property belonged not to the owner of the first ground, because the property was local ; nor yet to the owner of the second, because it was not started in his soil ; but it vested in the person who started and killed it, though guilty of a trespass against both the owners {k). And this appears to be still the law with respect to wild animals which are not game (1). But with respect to game (m) an (g) Stat. 1 & 2 Will. IV. c. 32, s. II. (h) Sect. 10. (i) See ante, p. 49. (k) 2 Bl. Com. 419 ; Church- w%rd V. StuUy, 14 Eaat, 249; 12 R. R. 513. Tlie last propoai- tioa is, however, doubted by Lord Chelmsford in Bladts v. Higgs, 11 H. of L. Gas. 639 ; see also Fitzharclinge v. Purcell, 1908, 2 Ch. 139, 168. [1) See Blades v. Higgs, 12 C. B. N. S. 501 ; 13 C. B. N. S. 844 ; 18 .Jur. N. S. 701 ; afEd. 11 H. of L. Cas. 621 ; The Queen V. Read, 3 Q. B. D. 131; 26 W. R. 283. (r/») See ante, p. 155, n. (c). I OF CHATTELS WHICH DESCEND TO THE HEIR, 157 alteration appears to have been made by the Game Act (n), which seems to vest the property in game killed on any land by strangers, in the person having the right to kill and take the game upon the land (o). (n) Stat. 1 & 2 Wm. IV. c. 32. Lonsdale, 1 H. & N. 923. (o) Sect. 36 ; Bigg v. Earl of ( 158 ) PART II. OF CHOSES IN ACTION. CHAPTER I. OF ACTIONS EX DELICTO. It has been observed (a) tliat things personal are said to be in possession or in action ; and that the term choses in action was apphed to things, to recover or reahze which, if wrongfully withheld, an action must have been brought. Personal things in action are of course recoverable by personal actions ; and these, as we have seen {b), were brought to enforce an obligation imposed on the defendant personally to make satisfaction to the plaintiff for a wrong or for a breach of contract. Now, by the common law of England, the satisfaction which a man is bound to make for such a violation of right is the payment of money as dmnages (c). Thus the right to bring a personal action is a thing valuable in money ; and in this aspect it may be included in what is called property, using the term property in the wide sense of all the rights a man has, which Obligation. are valuable in money {d). It is, however, worthy of remark that the benefit of an obligation, being the right to some act or forbearance on the part of a particular person (e), is a right of a very different nature from the right of property or ownership, strictly so called, which is a right to some thing (o) Ante, p. 28. Damages. See ante, p. 4. (h) Ante, p. 4. {d) Ante, pp. 29, 30. (f ) Co. Litt. 257 a ; Com. Dig. (e) Bract, fo. 99, 102 a ; Britt. tit. Damages ; Bac. Abr. tit. liv. i. ch. 29, § 2. _J OF ACTIONS EX DELICTO. 159 availing against all the world. And the former right is included in property (in the wide sense of the word) only in so far as it is valuable in money, that is, capable of being exchanged for the owner- ship of money (/ ). The principle of the payment of money as com- pensation for an injury appears in our earliest laws, and is perhaps the most important step in procuring the substitution of an appeal to law for the exercise of private vengeance (g). But actions for damages, that is, to recover a sum to be assessed in the action as proportionate to the injury suffered, appear to have been developed no earlier than in the thirteenth century {h). Once introduced, however, their importance quickly increased ; and a personal action sounding (as it was said) in damages became the regular remedy for a trespass or violation of right (i). Damages still remain the appropriate compensation recoverable in an action at law for a wrong or breach of contract. Formerly actions for damages could only be brought in the courts of common law. The Court of Chancery, though it possessed special jurisdiction of its own to issue an injunction to restrain the commission or continuance of certain particular injuries, and to decree the specific performance of contracts of a special class (k), had in general no power to award damages (l). But by a statute of the year 1858, commonly called " Lord Cairns' Act," the Court of (/) See Savigii}', S^'stem des Abr. Damages (A), Traspass ; heutigen romisehen lleehts, Vol. ttnie, pp. 4, 12, n. (to) ; 13, ii. (?) ; I. §53, pp. 338—350; ante, 17, n. («) ; 19-21. p. 30. (^•) Chiefly for the piirehase or (g) See Thorpe, Ancient Laws icassing of land ; see 2 Wnis. V. and Institutes of England, Vol. I. & P. 1092, 1090 and n. («), 2nd p. 3, n. (/) ; Holmes on the ed. Common Law, Lect. 1. (/) Cilbert, P'onira Romanum, {h) P. & M. Hist. Eng. Law ii. ch. xii. p. 419 ; Story's Equity 521. Jurisprudence, ch. xix. vol. ii. (0 Co. Litt. 285, a, 2S8 ; 13ac. p. 122, 13th ed. 160 OF CHOSES IN ACTION. Judicature Acts of 1873 —1875. Divisions of High Court of Justice. Chancery was empowered to award pecuniary damages, either in addition to or in substitution for an injunction or specific performance (m). By the Judicature Acts of 1873 to 1875 the original jurisdic- tion both of the courts of common law and the Court of Chancery, and also that of the Courts of Admiralty, Probate and Divorce and Matrimonial causes, was transferred to and vested in the High Court of Justice as from the 1st of November, 1875 (n). The Act of 1873 divided the High Court of Justice into five divisions, namely, the Chancery division, the Queen's Bench division, the Common Pleas division, the Exchequer division, and the Probate, Divorce, and Admiralty division. To each of the four last-named divisions were assigned all causes and matters which, if the Act had not passed, would have been within the exclusive cognizance of the Court or Courts from which the division took its name (o). But in 1888 the Queen's Bench, Common Pleas and Exchequer divisions of the Court were united and consolidated in one division, called the Queen's (now the King's) Bench (m) Stat. 21 & 22 Vict. c. 27, s. 2, now repealed by stat. 46 & 47 Vict. c. 49, saving the juris- diction thereby estabhshed, and reserving the po\\er of making Rules of Court as to the matters contained therein : Lewers v. Earl of Shaftesbury, L. R. 2 Eq. 270 ; Krehl v. Burrell, 7 Ch. D. 551 ; 11 Ch. D. 146; Fritz v. Hobson, 14 Ch. D. 542 ; Sayers V. Collier, 28 Ch. D. 103, 107, 108 ; Chapman, Morsons d- Co. V. Guardians of Auckland Union, 23 Q. B. D. 294; Proctor v. Bayley, 42 Ch. D. 390 ; Shelf er v. City of London Electric Lighting Co., 1895, 1 Ch. 287; Re JR., 1906, 1 Ch. 730. (n) Stats. 36 & 37 Vict. c. 66, S3. 3, 4, 16, 17, 18 ; 37 & 38 Vict. 0. 83 ; 38 & 39 Vict. c. 77. These Acts established a Supreme Court of Judicature, in which were united the previously exist- ing Courts of Chancery, Queen's Bench, Common Pleas, Exche- quer, Admiralty, Probate, and Divorce and Matrimonial Causes. This Supreme Court consists of two divisions, the High Court of Justice and the Court of Appeal. To the Court of Appeal there was transferred the appellate juris- diction of the Lord Chancellor and the Court of Appeal in Chancery, of the Chancellor and Court of Appeal in Chancery of the county palatine of Lancaster, of the Court of Exchequer Chamber, and of the Privy Council on appeal from the Court of Admiralty. (o) Stat. 36 & 37 Vict. c. 66, s. 34. OF ACTIONS EX DELICTO. 161 division (p). To the Chancery division was assigned the administration of the principal matters which were previously within the exclusive jurisdiction of the Court of Chancery (including the execution of trusts {q) and the specific performance of contracts for the sale or leasing of real estate), and the exercise of the same Court's statutory jurisdiction (r). Subject to the provisions of the Judicature Acts and to any rules of Court, and to the power to transfer causes from one division to another (s), any plaintiff may assign his cause to svich one of the divisions of the High Court as he may think fit (t). Each division of the Court has now equal jurisdiction to give either an injunction or damages (u). But, although the jurisdictions of the former courts of law and equity are thus united, so that equitable as well as legal rights may now be enforced in the same Court, no change was made by the Judicature Acts in the nature of legal or of equitable rights and remedies {x). The right to bring a personal action at law, in other words, a legal chose in action, is therefore still valuable as resulting in the payment of money or damages. The infliction of a wrong, and the non-performance of a contract, are evidently the two grand sources from which personal actions ought to proceed. If one man commits a wrong against another, justice evidently requires that he should give him satisfac- tion ; and if one man enters into a contract with (/>) By an order in council (t) Stat. .38 & 39 Vict. c. 77, dated 16th Dec. 1880, made in s. 11. See Rules of the Supreme pursuance of stat. 36 & 37 Vict. Court, 1883, Ords. II., V. rr. c. 66, s. 32. 5—9. («) Ante, pp. 26—28. (u) Sayers v. Collier, 28 Ch. D. (»•) Stat. 36 & 37 Vict. c. 66, 103, 108 ; Re B., 1906, 1 Ch. 730. s. 34 ; Rogers v. Jones, 7 Ch. D. (x) Ante, p. 28, n. (/) ; Wil- 349. liams, R. P. 167, 168, 182 and (s) Rules of the Supreme n. (s), 21st ed. Court, 1883, Ord. XLIX. W.P.P. 11 162 OF CHOSES IN ACTION. Actions ex delicto and ex contractu. another, he certainly ought to keep it, or make reparation for its breach ; or if the contract be to pay a sum of money, the money ought to be duly paid. Personal actions are accordingly divided by the law of England into two great classes, actions ex delicto and actions ex contractu (y). The former arise in respect of a wrong committed, called in law-French a tort ; that is, an actionable injury, not being exclusively a breach of contract or of some purely equitable obligation, to a man's person, reputation or property (z). Assault, libel, depriva- tion or spoiling of goods (a), and trespass on land are simple instances. Actions ex contractu arise in respect of a breach of contract, either by non- payment of a sum of money agreed to be paid, which thus becomes a debt (6), or by some other non-performance of the duty of action or forbear- ance, which the contract imposed. Let us turn our attention, in the present chapter, to a right of action in tort, considered as part of the injured person's property. When it is viewed in this light, we are chiefly struck with the fact that it is the exception, not the rule, for the right to sue and the hability for damages for a wrong to be completely transmissible. 1 Transmission on death. Maxim actio personalis moritur cum persona. First, with respect to transmission on death. The ancient law, upon the principle that the right to sue and the liability for a wrong are personal to the injured party and wrong-doer respectively (c), confined the remedy by action for a tort to the joint hves of the injurer and the injured. If either party died, the right of action was at an end, the maxim being actio 'personalis moritur cum per- (y) Bract, fo. 99 a ; 3 Black. Comm. 117 ; see Professor Mait- land's note on the history of this classification in Pollock on Torts, App. A., 5th ed. (2) See 3 Black. Comm 117, 119 sq. ; Salmond on Torts, 7, 3rd ed. ; Pollock on Torts, Ch. I., 5th ed. (a) Seeajif.e, pp. 6—21, 59—62. (b) Antp, p. 31. (c) See ante, p. 31, and n. (s). OF ACTIONS EX DELICTO. 163 so7id {d). In this rule, actions ex delicto only were included (e) ; of which, however, there seem to have been more than any other in early times. But by an early statute (/), the same action was Exceptions given to the executor for any injury done to the per- ^^e party° sonal estate of the deceased in his lifetime, whereby injured, it became less beneficial to the executor, as the deceased himself might have brought in his life- time. And by a modern statute {g), an action is given to the executors or administrators of any person deceased for any injury to the real estate of such person, committed within six calender months before his death, for which an action might have been maintained by him ; so that the action be brought within one year after the death of such person ; and the damages, when recovered, are to be part of the personal estate of such person. But the principle of the common law remains in force with regard to injuries to the person or reputa- tion (h). It is, however, provided by the Fatal Accidents Act, 1846 (*), long knoAvn as " Lord Campbell's Act," that whenever the death of a person shall be caused by such wrongful act, neglect or default, as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof (k), the wrong-doer shall be liable to an action for damages, notwithstanding the death of the person injured, (d) 1 Wms. Saund. 216 a, n. Bk. III. Ch. I. § 1, 789—793 (1;. 7th ed. ; 606 sq., 10th ed. (e) Ante, p. 31, n. (r). See (?) Stat. 9 & 10 Vict. c. 93, Finlay v. Chirney, 20 Q. B. D. amended by stat. 27 & 28 Vict. 494. c. 95. See Pym v. The Great if) Stat. 4 Edw. III. c. 7, De Northern Raihvay Company, 2 bonis asportntis in vita testatoris, B. & S. 759. extended to executors of execu- (Ic) See William.^ v. Mersey tors by stat. 25 Edw. III. stat. 5, Docks d: Harbour Board, 1905, 1 c. 5. K B. 804 ; Chrk v. London (g) Stat. 3 & 4 Will. IV. c. 42, General Otnnibus Co., Ld., 1906, s. 2. 2 K. B. 648. (A) See 1 Wms. Exor.s. Pt. II. 11—2 164 OF CHOSES IN ACTION. and although the death shall have been caused under such circumstances as amount in law to felony. Under this Act, one action only can lie for the same subject-matter of complaint ; and such action must be commenced within twelve calendar months after the death of the deceased (l) in the name of his executor or administrator (m), and must be for the benefit of the wife, husband, parents, grandfather and grandmother, stepfather and stepmother, children, grandchildren and step- children of the deceased, in such shares as the jury shall direct {n). And if there shall be no executor or administrator of the person deceased, or, there being such executor or administrator, no action shall have been brought in his name within six calendar months from the death of the deceased, then such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by or in the name of such executor or administrator (o). Previously to this statute, a man who had been maimed by another could recover compensation for the injury ; but if he died of his wound, his family could obtain no recompense for the loss of a life which might have been their only dependence (p). And even now, when the death of a person is not caused, no action can be brought by his executor or administrator {I) Stat. 9 & 10 Vict. c. 93, in respect of the death of an s. 3. By the effect of the Mari- alien, where the alien could have time Conventions Act, 1911, sued, ii a,\ive ; Da vidsson v. Hill, Stat. 1 & 2 Geo. V. c. 57, s. 8, the 1901, 2 K. B. 606. above time is extended to two (o) Stat. 27 & 28 Vict. c. 95, years from the date when the s. 1. damage or loss was caused in (p) See, however, Jackson v. cases where the loss of life was Watson, 1909, 2 K. B. 193, as to caused by the fault of a ship ; recovering in an action for The Caliph, 1912, P 213. See breach of warranty damages for ante, p 133. loss of the services of a person (m) Sect. 2. whose death was caused by such (w) Sects. 2, 5. An action breach, may be brought under this Act OF ACTIONS EX DELICTO. 165 for any injury which affected him personally, if it did not touch his f)roperty (d., which may be denoted bj- an adhesive stamp, to be cancelled by the person by whom the agree- ment is first executed ; stat. 54 & 55 Vict. c. 39, First Schedule, tit. Agreement and sa. 8, 22, replacing the Stamp Act, 1870 ; see Gwt/thor v. Gordon 3 Times L. R. 461 ; Oarlill v. Carbolic Smoke Ball Co., 1892, 2 Q. B. 484, 489, 490 ; affirmed 1893, 1 Q. B. 256. (m) Leroux v. Brown, 12 C. B. 801 ; see Pollock on Contract, 649—652. 7th ed. (n) 5 East, 10; 2 Smith, L. C. (o) Saunders v. Wakefield, 4 B. & A. 595; 23 R. R. 409; Morley v. Boothhy, 3 Bing. 107 ; Clancy v. Piggolt, 2 A. & E. 473 ; 1 Wms. Saund. 211, n. (d) ; Price V Richardson, 15 M. & W, 539. OF CONTRACTS. 185 default, or miscarriage of another person, being in writing and duly signed, shall be invaUd to support an action, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document (p). The phrase in the statute to ansiuer for the debt, f '^T*|!^!'^| default or miscarriage of another person, means fault or mis- to answer for a debt, default or miscarriage for damage. ivhich that other remains liable (g). Thus, where Goodman v. one party to an agreement verbally promised the other, that, in consideration of his discharging from custody a third person whom he had taken in execution for debt, he, the first party, would pay the debt, it was held that action might well be brought on this promise, although it was not put in writing (r). For this was not a promise to answer for the debt of another person, to which that other remained liable, but to pay a debt from which the other was discharged. It was an original promise to pay and not a collateral promise to guar- antee, which is the meaning in the statute of the words " answer for." The words " any agreement. Space of one that is not to be performed within the space of making. one year from the making thereof," have been held to mean an agreement which appears from its terms incapable of performance within the year (.s). Thus where one man promised another, ^e«erv. for one guinea, to give him a certain number on (p) Stat. 19 & 20 Vict. c. 97, A promise to indemnify a person s. 3. See Holmes v. Mitchell, 7 in consideration of his accepting C. B. N. S. .301 ; WilUaTTis v. a liahilitv is not within the Lake, 2 E. & E. 349 ; Re Hoyle, statute ; 6'wtW v. Conrad, 1894, 1893, 1 Ch. 84. 2 Q. B. 885. (q) 1 Wms. >Saund. 211 b, n. (r) Goodimtv v. Chase, 1 B. & (2) ; Notes to Birkmyr v. Dar- A. 297 ; 19 R. R. 322. See also nell, 1 iSniith, L. C ; Cripps v. Jmhc v. J3un/hart, 1 Q. B. 933. Hartnoll. 4 B. & S. 414 ; Eexider (.«) >See Britain v. Rossiter, U V. Kinghnm, 13 C. B. N. S. 344; Q. B. D. 123; Smith v. Gold Lakeman v. Mountstephen, L. R. Coast, (fcc, Ld, 1903, 1 K. B. 285, 7 H. of L. 17 ; Harhurq, ,f,T., Co. 538, V. Martin, 1902, 1 K. B. 778, 186 OF CHOSES IN ACTION. Wells V. Horton. Hanan v. Ehrlich. Donellan Read. Reeve v. Jennings. the day of his marriage, it was held that a writing was unnecessary, for the marriage might have happened within the year {t). So a contract by A. that his executor shall pay 10,000Z. need not be in writing (w), for the death of A. and payment of the money may all take place within a twelve- month. But an agreement for two years' service, terminable on either side by six months' notice, must be in writing {x). It has also been held that, in order to bring an agi'eement within this clause of the statute, so as to render writing necessary, both parts of the agreement must be such as are not to be performed within a year from the making thereof. Thus where a landlord agreed to lay out 50L in improvements, in consideration of the tenant undertaking to pay him 51. a year during the remainder of his term (of which several years were unexpired), it was held that writing was unnecessary {y) ; for although the tenant's part of the agreement was not to be performed within a year, the landlord's part might reasonably have been so. This construction, however, has not been applied where one part of the agreement, though it might possibly be performed within the year, is not in the nature of an entire consideration to be executed or given all at one time, and the parties contemplated the continuance of the agreement beyond the year. Thus, where an oral agreement for service with a dairyman, not specifying any term but determinable by a week's notice on either side, stipulated that the servant should not carry on the business of a dairyman within a specified area for thirty six months after quitting the {t) Peter v. Compton, Skin. 353 ; 1 Smith, L. C ; Souch v. Strawhridge, 2 C. B. 808. (u) Wells V. Horton, 4 Bing. 40; 29 R. R. 498; Ridley v. Ridley, 34 Beav. 478. (x) Hanan v. Ehrlich, 1911, 2 K. B. 1056 ; 1912, A. C. 39. (y) Donellan v. Read, 3 B. & Ad. 899 ; 37 R. R. 588 ; Cherry V. Hcming, 4 Ex. 631. I OF CONTRACTS. 187 service, this stipulation was held to be unenforceable by the master for want of writing (z). The above decisions have considerably narrowed the operation of the statute, and have left remaining much of the mischief, arising from reliance on memory only, which it was the intention of the statute to obviate, by requiring written evidence (a). As we have seen, except as above provided in the case of guaran- tees (6), the whole of the agreement must be in writing ; so that the memorandum must show who are the parties to the contract, or the contract cannot be enforced (c). But the statute only requires the Signed by the writing to be signed by the party to be charged ; charged. and it is not necessary that the other party should sign it {d). And as the Act requires signing only, and not subscribing, it has been held that the necessary signature may be placed in any part of the document, provided that the name be inserted in such a manner as to govern the whole memoran- dum (e). The Statutory note in writing need not be contained in one document ; it may be made out from several documents, if they can be con- nected together, and it constantly happens that a contract in writing is made out from letters or other informal memoranda (/ ). And the required note need not be written at the time of entering into the agreement, but may well be made at any (2) Reeve v. Jennings, 1910, 2 (e) Ogilvie v. Foljamhe, 3 Mer. K. B. 527 ; see also Hanan v. .'iS ; Lohh v. Stanley, 5 Q. B. Ehrlich, ubi sup. 574 ; Caton v. Caton, L. R. 2 (a) See notes to Peter v. Comp- H. L. 127, 143. ton, 1 Smith, 1.. C. (/) Rid{iwny v. Wharton, 6 (6) Ante, Y). 185. H. L. C. 238; Barimann v. (c) Williams v. Tjukf, 2 E. & E. James, L. R. 3 Ch. 508 ; Lonq v. 349 ; Rossiter v. Miller, 3 App. Millar, 4 C. P. D. 450 ; Shardlorv Caa. 1124, 1141 ; Potter v. Duf- v. Coitrrell, 20 Ch. D. 90 ; Studds field, L. R. 18 Eq. 4 ; Jarrett v. v. Watson, 28 Ch. D. 305 ; Oliver Hunter, MGh.T>.\9,2. v. Hunting, 44 Ch. D. 205; ((/) Laythoarp v. Bryant, 2 Pearce v. Gardner, 1897, 1 Q. B. Bing. N. C. 735 ; Reuss v. Picks- 088. ley, L. R. 1 Ex. 342. 188 OF CHOSES IN ACTION. time afterwards, before an action is brought to enforce the contract (g). It has been held that an offer in writing specifying all the terms of a proposed agreement, and signed by the proposer, may be a sufficient memorandum to bind him under the statute, notwithstanding that the offer was accepted not in writing, but by conduct only (h). Sale of goods worth 10/. or The fourth section of the Sale of Goods Act, 1893, which has taken the place of the seventeenth section of the Statute of Frauds, and relates to contracts for the sale of goods worth lOL or more, has been aheady noticed (^). Agreements for the sale of goods but not to be performed on either side within the year are also governed by the fourth section of the Statute of Frauds (k). Lord Tenter- den's Act. Written acknowledg- ment required to take the case out of the Statute of Limitations. The next statute which requires our notice is commonly called Lord Tenterden's Act (l). By this statute no acknowledgment or promise by words only can take any case of simple contract out of the operation of the Statute of Limitations (m), or deprive any party of the benefit thereof, unless such acknowledgement or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby (n). The effect of such a promise has already been referred to (o). The statute makes no mention of any signature by an agent ; but by the Mercantile Law Amendment (g) Re HoUarul, 1902, 2 Ch. 360. (h) ReiLss V, Picksley, L. R. 1 Ex. 342 ; ante, p. 176. {i) Ante, p. 80. (k) Prested Miners^ Co., Id. v. Garner, Ld., 1910, 2 K. B. 776 ; 1911, I K. B. 425; see Brace- girdle V. Heald, 1 B. & A. 722, 727 ; Donellan v. Read, 1 B. & Ad. 899, 906. (0 Stat. 9 Geo IV, c. 14. {m) Stat. 21 Jac. L c. 16, s. 3. [n) See Lechmere v. Fletcher, 1 C. & M. 623 ; Bird v. Gammon, 3 Bing. N. C. 883 ; CheAyn v. DaJhy, 4 You. & Coll. 238. Nothing contained in stat. 9 Geo. IV. e. 14 (see s. 1), is to alter the efiect of any payment of principal or interest to pre- vent a debt from being barred by the Statute of Limitations. (o) Ante, p. 182. OF CONTRACTS. 189 Act, 1856, the signature of an agent was rendered sufficient (jp). Lord Tenterden's Act further ^^Jfof cha"- enacts (q), that no action shall be brought whereby racter, &c. to charge any person upon or by reason of any representation or assurance made or given con- cerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, unless such representation or assurance be made in writing signed by the party to be charged therewith. There appears to be some error in the word " upon " in this enactment, which, as it stands, is superfluous (r). And it has been doubted whether a representation made to a purchaser by the trustee of some property that the property was encumbered to a less extent than was actually the case, was a representation concerning the ability of the vendor within the meaning of the statute (s). The better opinion seems to be that such a representation is within the statute, and ought consequently to be obtained in writing. There are a few other cases, besides those affected by the Statute of Frauds and Lord Ten- terden's Act, in which contracts are by law required to be in writing, or in some other special form (t). Thus contracts of marine insurance are required to be embodied in a pohcy signed by the insurer, or they will not be admissible in evidence (u). 4. There must be nothing unlawful in the object Legality of of the agreement, or it camiot be enforced. For, contract. (p) Stat. 19 & 20 Vict. c. 97, & W. 101 ; Swatm v. Phillips, 8 s. 13. A. & K. 4ol ; Dcvaux v Stein- (q) Stat. 9 Geo. IV. c. 14, s. G. keller, 6 Bing. N. C. 84. (r) See 1 M. & W. 104, 123 ; (<) Sec Pollock on Contract, Swift V. Jewsbury, L. R. 9 Q. B- 145 tq., 7th ed. 301; Hirst V. West Riding Union (m) Stat. G Edw. VII. c, 41, Banking Co., Ld., 1901, 2 K. B. ss. 22, 24; see post, Part II. 560. Ch. V. (s) See Lyde v. Barnard, 1 M. 190 OF CHOSES IN ACTION. as we have seen (x), a contract gives a right to acts or forbearances on the part of another or others ; and if the acts or forbearances contemplated by an agreement be unlawful, the law will not enforce them, and the agreement is void. Agreements may, however, be void as unlawful, not only because they contemplate some illegal act, that is, some act forbidden by common law or statute, but also if their object be the commission of some act, dis- couraged though not absolutely forbidden by law, on the ground either of its immorality or of its being against pubhc policy. And there are agree- ments which are simply made void, but not pro- hibited by statute ; so that it is not an illegal act to enter into or to perform them, but they are merely invalid and cannot therefore be enforced at law {y). It is beyond the scope of this work to discuss fully the various grounds on which agreements may be void for illegality (z). A few examples must suffice. Agreements First, as to agreements contemplating illegal contemplat- j a i , ing illegal acts. Any agreement to commit a crime, an ^cts. indictable offence or a civil wrong is generally void (a). So that an agreement involving the publication of a libel (6), or the commission of a fraud on a third party, is void (c). It is illegal to trade with the inhabitants of hostile states without the licence of the Crown ; and contracts made in violation of this rule are void (d). Again, some contracts are expressly forbidden by statute ; (z) Ante, p. 173. (c) Mallalieu v. Hodgson, 16 (y) See Hyatns v. Stuart King, Q. B. 689 ; Begbie v. Phosphate 1908, 2 K. B. 696, 707—711, Sewage Co., L. R. 10 Q. B. 491, 725—728. 499 ; Scott v. Brown d: Co., 1892, (z) See Pollock on Contract, 2 Q. B. 724. ch. vii. p. 273, 7th ed. (d) The Hoop, 1 C. Rob. 196 ; (a) Ibid. 276, 278, 7th ed. Potts v. Bell, 8 T. R. 548 ; 5 (6) Shackell v. Rosier, 2 Bing. R. R. 452 ; Esposito v Bowden, N. C. 634. 7 E. & B. 763. I OF CONTRACTS. 191 1900. others are impliedly prohibited by the infliction of a penalty or otherwise (e). And in the latter case, contracts made in violation of the statute are void, as well as in the former (/). The following instances may be given : — ^Insurances upon any life or other event, in which the person taking the benefit of the insurance has no interest, are prohibited by sta- tute (a). Every money-lender is required to be <^ontracts ' "^ ^ ^ contravening registered under the Money-lenders Act, 1900 (^), the Money- and to carry on his business of money-lending in lexifiers Act. and at his registered name and address only, and is prohibited from entering any agreement in the course of such business with respect to the advance and repayment of money, or from taking any secu- rity for money in the course of such business, otherwise than in his registered name. All agree- ments entered into and securities taken in con- travention of these provisions are therefore void (i) ; though they may be validated under the Money- lenders Act, 1911, in favour of a bond fide assignee or holder for value, not being himself a money- lender, without notice of the defect or any person deriving title under him (k). Unquahfied persons are prohibited by statute from practising as medical advisers ; so that an agreement contemplating the (e) See Pollock on Contract, Appendix (G.), p. 707, 7th ed. (/) Btnsley v. Bignold, 5 B. & A. 335 ; 24 R. R. 401 ; Cope v. RowUinds, 2 M. & W. 149 ; see Whiteman v. Sadler, 1910, A. C. 514, 525—527 ; Pollock on Con- tract, 293, 7th ed. (g) Stat. 14 Geo. III. c. 48, which does not extend to in- surance of ships, goods, or mer- chandises ; see fost. Part II. Ch. V. (h) Stat. 63 & 64 Vict. c. 51, s. 2 ( 1 ) ; see sect. 6 for the definition of a money-lender. (/) Bonnard v. Dott, 1906, 1 Ch. 740 ; Chapman v. Michael- son, 1909, 1 Ch. 238; Whitetnari V. Sadler, 1910, A. C. 514; Re Robinson, 1911, 1 Ch. 230; Re Cumphell, 1911, 2 K. B. 992; Re Robinsons Settlejnent, 1912, 1 Ch. 717. (/t) Stat. 1 & 2 Geo. V. c. 38, s. 1, also validating any payment or transfer of money or property made bond fide by any person on the faith of the validity of any such agreement or security ^^ith- out notice of the defect, but re- quiring the money-lender in this and in the above case to indem- nify the borrower or any other person who is prejudiced by virtue of this enactment. 192 OF CHOSES IN ACTION. Agreement unlawful for immorality. practice of the medical profession by an unqualified person is void (l). The best instance of an agreement held to be unlawful on the ground of immorahty is an agree- ment between a man and a woman contemplating future cohabitation. Such an agreement is alto- gether void (m). If, however, a promise be made in consideration of past cohabitation, the agreement is not void as unlawful (n). But as such a past consideration cannot support a promise, the agree- ment will not be binding unless made under seal (o). Agreements ^g ^q what agreements are unlawful as being unlawful as . '^ ° against public against public policy, all that can be said here is policy. Maintenance. that there are certain kinds of agreements which have been judicially held to be against the common weal (|)). One instance is afforded by agreements tending to impede the course of justice ; as agree- ments for stifling a criminal prosecution for some offence, which cannot also be the subject of an action for damages, or is an offence against the public (g), or agreements to indemnify a surety for a person admitted to bail or ordered to find bail for his good behaviour against loss by his default (r). Agree- (l) Davies v. Makuna, 29 Ch. D. 596. (j«) Walker v. Perkins, 1 W. Black. 517 ; 3 Burr. 1568 ; Gray V. Mathias, 5 Yes. 286. (n) Turner v. Vaughan, 2 Wils. 339 ; Hill v. Spencer, Amb. 641, 836; Oray v. Mathias, 5 Yes. 286 ; 5 R. R. 48 ; Hall v. Palmer 3 Hare, 532 ; Kyne v. Moore, 1 S. & S. 61 ; 2 S. & S. 260 ; Nye V. Moseley, 6 B. & C. 133 ; 30 R. R. 26b ; Be Vallance, 26 Ch. D. 353. (o) Binnington v. Wallis, 4 B. & A. 650 ; Beaumont v. Beeve, 8 Q. B. 483. See ante, pp. 177, 181. (p) See Pollock on Contract, 312 sq., 7th ed. (q) Collins v. Blanteryi, 2 Wils. 341 ; 1 Smith, L. C. ; Keir v. Leeman, 6 Q. B. 308; 9 Q. B. 371 ; Williams v. Bayley, L. R. 1 H. L. 200 ; Fisher v. Apolli- naris Co., L. R. 10 Ch. 297 ; Ex parte Wolverhampton and Staf- fordshire Banking Co., 14 Q. B. D. 32 ; Windhill Local Board v. Vint, 45 Ch. D. 351 ; Jones v. Merionethshire, d-c. Building Society, 1892, 1 Ch. 173. (;■) Wilson v. Strugnell, 7 Q. B. D. 548 ; Herman v. Jeuchner, 15 Q. B. D. 561 ; Consolidated Exploration Co. v. Mtisgrare 1900, 1 Ch. 37. OF CONTRACTS. 19a ments void for similar reasons (s) are agreements involving maintenance (t), or champerty (u). Agree- Champeit}'. ments by a father to forego his right to the custody of his children or his discretion as to their educa- tion, are generally void as against public policy (x). Again, some agreements are void as tending unduly to restrict individual freedom of action (y), as agreements in restraint of marriage {z) or of trade. The law, which determines what contracts are void Contracts in as being in restraint of trade, is the result of two trade, conflicting principles of public policy. On the one hand, it is for the advantage of the community that every person should be allowed the full exercise of , his trade or profession ; upon this ground it has been established, as a rule, that all contracts are void which impose an unreasonable restraint upon the exercise of a man's lawful calling. On the other hand, it is equally for the public welfare that every man should be free to make the best bargain he can either for his own labour or skill or for the result of his own capable conduct of his business in the shape of its goodwill. And for this reason it has been admitted that a contract may be well made for valuable consideration (a) imposing a reasonable (s) See Hunter v. Daniel, 4 Ch. ^22, (53(5 ; see Re Agar-ElUs, Hare, 420, 431 ; Sprye. v. Porter, 10 Ch. D. 49 ; 24 Ch. D. 317 ; 7 E. & B. 58 ; Ilutley v. Hutlei/, Be Ne.vin, 1891, 2 Ch. 299. As L. R. 8 Q. B. 112 ; British Cash, to agreements in separation tfcc, Ld. V. Lamson Stove, <(-c., deeds giving the custfidy or Ld., 1908, 1 K. B. 1006 ; Pollock control of the children to the on Contract, 335, 7th ed. Tho naother, see now stat. 3(i Vict, fact that maintenance is an c. 12, s. 2 ; Re Besunt, 11 Ch. D. actionable offence furnishes 508. another ground for holding such (y) Pollock on Contract, 349, agreements void ; see Bac. Abr. 7th ed. Maintenance; Bradlaughv New- {z) Lowe v. Peers, 4 Burr. 2225 (legate, 11 Q. B. D. 1 ; Alabaster (promise by Peers under seal not V. Harness, 1895, 1 Q. B. 339 ; to marrv any one but Mrs. Lowe, ante, p. 190. and if lie did, to pay her 1,000/. (/) Ante, p. 35. within three months after he (m) Ante, j>. 169 ; Rees v. Ber- should have married any one nardy, 189(5, 2 Ch. 437. else, held void). (x) Andrews v. Salt, L. R. 8 (a) Such a contract must be w.p.p, 13 194 OF CHOSES IN ACTION. restriction on a man's following his trade or busi- ness (6). Questions of the vahdity of a restraint on trade generally arise in cases where one person stipulates that another, to wliom he is to impart instruction or give employment in his business, shall not afterwards enter mto competition with him, or where the vendor of the goodwill of a business agrees not to compete with the purchaser ; indeed it is only for the protection of some business, in which the person imposing the restraint is interested, that an agreement of this kind can well be made, as otherwise the restraint would be unreasonable and void (c). To give examples, a contract is not rendered void by having for its object the restraint of a person from trading in a particular place, or within a reasonable distance from any particular place {d), for he may carry on trade elsewhere ; nor is a contract void which restrains a person from serving a particular class of customers (e) (for there are plenty of others to be found), or which binds a person to be the servant for life in his trade to another (/), for this is not in restraint of trade when it is to be carried on for his life. And agreements may lawfully be made restricting the manner in which a trade is to be worked {g). It was for a long time considered that made for valuable consideration Kay, 663, 667 ; Pollock on Con- in order to be good, even though tract, 363, 7th ed., where the made by deed ; see ajite, pp. 177, cases are collected. The dis- 178. tance is reckoned as measured on (6) See Pollock on Conti'act, a map ; Maufiet v. Cole, L. R. 8 353, 361 sq., 7th ed. ; 3Iitchcl Ex. 32. V. Reynolds, 1 Smith, L. C. ; (e) Rannie v. Irvine, 7 Man. & Maxim Norde7ifelt, =. V. & P. 863, defendant as the condition of 864, 2nd ed. his signing a composition deed 198 OF CHOSES IN ACTION. on the ground of mistake, misrepresentation, fraud, duress, or inidue influence. The examination of this branch of tlie law of contract would be out of place in a book treating of rights acquired by contract only as part of a man's property. It is fully discussed in Sir F. Pollock's valuable " Principles of Contract " (a), and in the editor's treatise on the " Law of Vendor and Purchaser " (6). All that can be said here is this : — Mistake may be such as to exclude any true consent between the parties, in which case there can be but a void agreement between them (c) ; or mistake may occur in the expression of a true consent, in which case it can generally be rectified {d). Contracts induced by misrepresentation, fraud, duress, or undue influence are not void, but are voidable at the option of the party misled, deceived, coerced, or unduly influenced (e). Contracts As we liavc Seen (/), a contract gives rise to rights parties ^^ against particular persons only. And the only thereto. persons against whom such rights can be enforced are parties to the contract, or their executors or administrators, or their principals in the case of contracts made by agents (g). Conversely, as a general rule, no one can sue upon a contract who is not a party to it, save as the executor, administrator, (a) Ch. IX. — XII., 7lh ed. selling them to Blenkiron & Co. ; \b) Vol. I., pp. 747 i-q., 2nd Carlisle, dc, Banking Co. v. ed. Bragg, 1911, 1 K. B. 489; 1 (c) See Foster v. Mackinnon, \A'ms. V. & P. 748 sq.. and L. R. 4 C. P. 704, where defen- Addenda to Vol. II., 2nd ed. dant indorsed a bill of exchange [d) See 1 AVms. V. & P. 780 believing he was signing a sq., 2nd ed. guarantee ; Smith v. Hughes, (e) See 1 Wms. V. & P. 748, L. R. 6 Q. B. 597, where the 749, 805 sq., 2nd ed. question \\'as whether plaintiff (/) Ante, p. 173. had sold certain oats to defen- (g) See Pollock on Contract, dant as old oats ; Cundy v. 197 sq., 7th ed. ; 2 Wms. V. & P. Lindsay, 3 App. Cas. 459, M'here 1081 sq., 2nd ed. ; ante, p. 31, the respondents delivered goods n. (r). to Blenkarn believing they were OF CONTRACTS. 199 assign, or principal of some party thereto (h). When Bankruptcy. a party to a contract is adjudged bankrupt, the benefit of the contract passes, as a rule, to his trustee in bankruptcy (i), who is, however, at liberty to disclaim any onerous or unprofitable contract made by the bankrupt within the time and upon the conditions specified in the Bankruptcy Act, 1883 (k). And as a rule, any habihty to pay money or money's worth on breach of contract and any Habihty on contract to pay or capable of resulting in the payment of money or money's Avortli is provable in and will be discharged by the bankruptcy of the party liable (l). The term chose in action is applied to the benefit of an obligation arising from contract, whether resulting in the payment of a certain sum of money or sounding in damages only, notwithstanding that no action can be maintained thereon before there has been a breach of the contract. The benefit of Assignment . , • . 1 /. • 1 1 1 • j^i of contracts. a contract is therefore assignable, as a rule, m the same manner as other choses in action {m). If, (h) See Pollock on Contract, below ; cf. Hardy v. Folhergill, 197 sq., 7th ed. ; 2 Wms. V. & P. 13 App. Cas. 351, and Victor v. 1081 sq., 1083, 2nd ed. ; Candy Victor, 1912, 1 K. B. 247, with V. Gandij, 30 Ch. D. 57 ; Barjot, Re Reis, 1904, 2 K. B. 7(59 ; and die. Go. V. Clipper, dc, Co., see Wms. V. & P. I. 54(3, 547, 1902, 1 Ch. 146, 155 ; Earl v. II. 1023, 2nd ed. Lvhhock, 1905, 1 K. B. 253; (m) Litt. s. 512; Co. Litt. antc,Tp. 31, n. (r). 144 b, n. (1), 292 b; 2 Black. (»') See Emdcii v. Carte, 17 Ch. Comiu 397, 43() ; Ex parte Ibbet- D. Ifj9, 768 ; Ex parte Bemvell, son. Re Moore, 8 Ch. D. 519 ; 14Q. B. D. 301; iie 67u/te, 1892, Brice v. Bannister, 3 Q. B. D. 1 Q. B. D. 522 ; Wilmot v. Alton, 569 ; Walker v. Bradford Old 1897, 1 Q. B. 17; Re Roberts, Bank; 12 Q B. D. 511; Re Davis 1900, 1 Q. B. 122 ; cf. Bailey v. a> Co., 22 Q. B. D. 193 ; L. Q. R. Thurston, 1903, 1 K. B. 137; xi. 230, 231; Hughes v. Pump and see 1 Wms. V. & P. 54(5 sq.. Hotel Co., 1902, 2 K. B. 190 ; 552 sq., 2nd ed. Torkiiujton v. Magee, ib. 427, (k) Stat. 46 & 47 Vict. c. 52, reversed on the facts only, 1903, s. 55. 1 K. B. 644 ; Tolhurst v. Asso- (I) See sects. 37, 30 (2) ; stated dated PortlaTul Cement ManU' in the chapter on Bankruptcy facturers, 1903, A. C. 414. 200 OF CHOSES IN ACTION. however, an obligation under a contract was intended to be for the exchisive use of some or one of the contracting parties personally, the benefit of it is not assignable (n). As we have seen (o), before the year 1875, choses in action were assignable in equity, but not, as a rule, at law, otherwise than by giving the assignee a power of attorney enabling him to sue thereon in the assignor's name ; and they are now directly assignable in the manner and under the conditions specified in the Judicature Act of 1873. But things in action, of which the indirect assignment was void before this Act for maintenance or otherwise, cannot be directly assigned over by virtue of its provisions {p). And the opinion has been judicially expressed that the things in action assignable under this Act do not include the mere right to sue for damages for a past breach of contract (g). This opinion, however, must of course be confined to the right to sue for unliquidated (that is, unascertained) damages for breach of contract. It can have no application to the breach of a promise to pay money, which gives rise to a debt (r). And it appears that a right to sue for unliquidated damages for a past breach of contract resulting in damage to or depreciation in value of property may be assigned over in connection with a transfer of the property ; as where a landlord grants to another his reversion on a lease for years and assigns to the grantee his right to sue the lessee for past breaches of the covenants in the lease (s). («,) Kemp V. Brtprselman, 1906, 434, reversed on the facts, 1903, 2 K. B. <>04 ; cf . Phillips v. 1 K. B. 044 ; Dawson v. Great Alhambrn Palace Co., 1901, 1 Northern ii-k. 104; sec Williams, R. P. 281— 382; Cfuipman V. Esgar, 1 Sm. 284, 21st ed.; cases cited in n. (z) & Ciff. 575 ; Williams on Real above ; Re lllidge, 27 Ch. D. 478, Assets, 4, 7, 117 ; Setonon JudR- 483, 484; Williams on Real mcnts, lf508, 7th ed. Assets, 4 — 7, 14, 23—26 ; ante, (2) Bain V. Sadler, L. R. 12 Eq. p. 114. 570 ; Walter^i v. Walters, 18 Ch. 222 OF CHOSES IN ACTION. It is a question whether the Land Transfer Act, 1897 (e), which provides for the vesting of a dead man's real estate in his personal representatives and for the payment of his debts thereout, has had the effect of converting such real estate into legal assets : but it has been decided that an executor has no right of retainer out of such real estate (/) ; and it appears that it was not the intention of this Act to give to any creditor any priority or preference, to which he would not before the Act have been entitled in case of payment of his debt out of the dead man's real assets {g). Administra- tion of deceased persons' estates by the Court. The administration of the estates of deceased persons is an important branch of the jurisdiction of the Court of Chancery transferred in 1875 to the High Court of Justice (h), and it is assigned to the Chancery Division (i). After an order for adminis- tration under the direction of the Court has been obtained — and it may be granted on the application either of a creditor (k), or the executor or adminis- trator (1), or a legatee (m) — creditors can be pre- vented from pursuing their remedies at law (n), and they must prove their debts in the administration proceedings, and await the satisfaction of their claims in the due course of the administration of the estate. And after such an order has been made on behalf of creditors generally, an executor or administrator may no longer prefer one creditor to another (o) : but he may still exercise his right of retainer (p). Formerly an order for administra- (k) Ante, p. 114. (I) Post, Part III. Ch. iii. and (e) ss. 1- V., c R. P. (/) 52. ig) (h) {i) s. 34. Stat. 60 & 61 Vict. c. 65, -5, amended by 1 & 2 Geo. , 37, s. 12 ; see Williams, 219, 220, 283, 284, 21st ed. Re Williams, 1904, 1 Ch. See S. C. Ante, p. 160. Stat. 36 & 37 Vict. c. 66, (m) Ante, p. 36, and n. (m). (n) Post, Part III. Ch. iii. (o) Wms. Exors. ii. 1036, 7th ed. ; i. 783, 10th ed. (2^) Nunn v. Barlow, 1 S. & S. 588 ; Re Belham, 1901, 2 Ch. 52. OF DEBTS. 223 tion did not affect the legal priorities of debts : but it is now established that, according to the true construction of an enactment of the Judicature Act, 1875 (q), in the administration by the Court of the insolvent estates of deceased persons the same rules are to be observed with respect to the priority of debts as are for the time being in force under the law of bankruptcy (r). It appears, however, that this enactment does not bind the Crown (s) ; and the Crown privilege of priority of payment seems to remain untouched, although the estate be administered by the Court {t). The rules applied by the Court in the administration of equitable assets have been already stated {u). In accordance with the same principles, any creditors, who have been paid before the administration order in priority or preference to others according to the rules of the administration of legal assets out of Court (x), will not be allowed to receive anything under the administration of the estate by the Court until the other creditors have received enough to place them on an equal footing with those so preferred (y). Under the Bankruptcy Act, 1883 (z), an order may Administra- be made by a Court exercising bankruptcy juris- l^^^^^ ^i^^' diction for the administration of the insolvent deceased estate of a deceased debtor according to the law of sotve*iitestate. bankruptcy ; but such an order can only be obtained on the application of a creditor (a), or by order of a Court in which the estate is being administered. If such an order be made, the priority of debts is (<7) Stat. 38 & 39 Vict. c. 77, Benlinrk, 1897, 1 Ch. 673. s. 10. (m) Ante, pp. 220, 221. (r) i?e Whitaker, 1901, 1 Ch. 9, \x) Ante, pp. 219, 220. overruling Be Maggi, 20 Ch. D. {y) Louihian v. Hassel, 4 Bro. 545 ; and see Re Whitaker, 1904, C. C. 1()7 ; MitcheUon v. Piper, 8 1 Ch. 299 ; 3rCnmlnnd v. O'Cal- Sim. 64. laghan, 1904, 1 I. R. 37(). (z) Stat. 46 & 47 Vict. c. 52, (.s) See ante, p. 219, n. {k). s. 125, amended by 53 & 54 Vict. (t) See Be Oriental Bank Cor- e. 71, s. 21 ; see next chapter, pora^ion, 28 Ch. D. 643, 645, 649 ; (a) Re Kitson, 1911, 2 K. B. Be Churchill, 39 Ch. D. 174 ; Be 109. 224 OF CHOSES IN ACTION. entirely determined by the bankruptcy rules, and the Crown is placed on an equal footing with the Winding-up other creditors (6). The winding-up of joint-stock companies, companies is a process analogous to that of the bankruptcy of a natural person (c) ; and in such proceedings the order of payment of the debts is now governed by the bankruptcy rules (d), except that the Crown appears to retain its ancient privi- leges (e). Let us now examine the above-mentioned classes of debts more particularly. Debts of record. Courts of record. The class of debt which conferred the highest privileges is that of debts of record. These are debts due by the evidence of a Court of record ; that is, properly speaking, a Court of which the proceedings are enrolled or recorded, and the records are indisputable evidence of its proceedings (/). But every Court, by having power given to it to fine and imprison, is thereby made a Court of record (g). Such Courts are either supreme, superior, or inferior. The supreme Court is the High Court of Parliament (h). The principal superior Courts are now the two divisions of the Supreme Court of Judicature established by the Judicature Acts — namely, the High Court of Justice and the Court of Appeal (i) — and the (b) Stat. 46 & 47 Vict. c. 52, ss. 40, 125, 150 ; see lie Williams, 36 Ch. D. 573, 577—582. (c) See post, Part II. Ch. vi. (d) Stat. 8 Edw. VIT. c. (iO, ss. 207, 209, replacing 38 & 39 Vict. c. 77, s. 10, as now con- strued, and 52 & 53 Vict. c. 60, s. 4 ; post, pp. 243. n. (z), 244 ; ante, p. 223, n. (r). (e) See cases cited ante, p. 223, n. (t) ; Be Henley d; Co., 9 Ch. D. 469 ; Be West Londo7i Com- mercial Bank, 38 Ch. D. 364. (/) Black. Comm. ii. 465, iii. 24; Williams, R. P. 285. and n. (x), 2Ist ed. {(/) Bac. Abr. Courts (D 2). ('/(,) Bac. Abr. Courts (D 1). (i) Stat. 36 & 37 Vict. c. 66, ss. 3, 4, 16, 18 ; sec a7ite, p. 160, and n. {n). The old Courts of common law derived out of the King's Court, namely — the Courts of King's Bench, Common Pleas and Exchequer, and the Court of Chancery — were all superior Courts of record : Bac A'br.Courts (D, 1); WiUiams, R. P. 9 and n. (e), ] 62, 21st ed. The High Court of Admiralty was not originally a Court of record, but was made so by Stat. 24 Vict. c. 10, s. 14, The Ecclesiastical Courts were not OF DEBTS. 2^5 House of Lords (k). The Courts of Chancery of the counties Palatine of Lancaster and Durham are superior Courts of record (l). And the Court of Criminal Appeal is a superior Court of record (m). The inferior Courts of record may be said, gene- Inferior rally, to consist of the County Courts, and of record, ° certain local Courts (n). Debts of record do not, however, confer the same Crown debts. advantages on all creditors equally, for there is one creditor whose claims are paramount to all others, namely, the Crown. In order to enjoy this priority, the Crown debt is required to be a debt of record (o), or a debt by specialty, that is, secured by deed (jj) ; though if the debt be by simple contract without such security, it has preference over the other simple contract creditors of the debtor (g). As mentioned above (r), the Crown might formerly enforce payment of the whole debt due to it, not- withstanding the debtor's bankruptcy : but under the Bankruptcy Act, 1883 (s), debts due to the Crown are payable on an equal footing with those Courts of record : but the Court of Probate and the Court of Divorce and Matrimonial Causes, to which the ecclesiastical juris- diction in these matters was transferred in the year 1858, were Courts of record ; stats. 20 & 2] Vict. c. 77, ss. 4, 23 ; 20 & 21 Vict. c. 85, s. 6. So was the London Court of Bankruptcy united by the Bankruptcy Act, 1883, with the Supreme Court of Judicature ; stats. 32 & 33 Vict. c. 71, s. 65 ; 46 & 47 Vict. c. 52, s. 93. (k) Bac. Abr. Courts (D 1). The appellate jurisdiction of the House of Lords is now govern(!d by the Appellate Jurisdiction Acts, 1876 and 1887; stats. 39 & 40 Vict. c. 59 ; 50 & 51 Vict. c. 70. (l) Bac. Abr. Courts (D 1) ; sec Williams, R. P. 277, n. (p), W.P.P. 21st cd. (m) Stat. 7 Edw. VII. c. 23, s. 1 (7). (rt) Ante, p. 109. (o) Debts found to bo due to the Crown by the prerogative process of an inquest of olifice are debts of record, as well as debts due to the Crown by judg- ment in anj'^ ordinary proceed- ings in a Court of record ; 3 Black. Comm. 258 ; Wentworth Exors. 262, 263, 14th ed. ; Manning's Exchequer Practice, 1, 2nd ed. ; Chitty Prerogative, 265—271. ip) Wms. Exors. ii. 991—993, 7th ed. ; i. 756, 10th ed. (q) Re Bentinck, 1897, 1 Ch. 673. (r) Ante, p. 219. (.s^) Stat. 46 & 47 Vict. c. 52, s. 150. 15 226 OF CHOSES IN ACTION, of other creditors in case of the debtor's bankruptcy or of the administration of his estate in bankruptcy- after his death. The claims of the Crown, however, appear to remam paramount in the administration of the deceased debtor's estate out of Court, or in the Chancery Division (t), in the winding-up of joint stock companies (u), and in other cases (x). The hen of the Crown on the lands of its debtors by record or specialty, and also on the lands of accountants to the Crown, is mentioned in the author's Treatise on the Principles of the Law of Real Property (y). The privilege of the Crown to enforce payment of its debt by prerogative process against the body, lands and goods of its debtor is also referred to in the same work (y), and has been mentioned in the present volume (z). Judgment debt. A judgment debt carries interest. Of all debts which one subject may owe to another, that which formerly conferred the most important remedy is a judgment debt, or a debt which is due by the judgrnent of a Court of record (a). As such a debt is due by the evidence of a Court of record, it is of course a debt of record. Every judgment debt carries interest at the rate of 4/. per cent, per annum from the time of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment (b). In the administration of a (t) Ante, pp. 219, 222. (u) Ante, p. 224. (a;) A.-G. v. Leonard, 38 Ch. D. 622. (y) Page 285, 21st ed. (2) Ante, p. 105. (a) By the common law, every judgment for the recovery of a sum of money is a judgment debt, ^\hether given on account of a debt or damages arising by contract or of damages for a wrong ; ante, pp. 171 n. (i), 213. And when judgment is given to recover a debt, the original liabihty is, as a rule, merged in the judgment ; Ex parte Feicings, 25 Ch. D. 338 ; Wegg Prosser v. Evans, 1895, 1 Q. B. 108 ; Be King and Beesley, ib. 189 ; Econo- mic, dkc. Society v. Usborne, 1902, A. C. 147. (b) Stat. 1 & 2 Vict. c. 110, s. 17 ; Taylor v. Boe, 1894, 1 Ch. 413. See Rules of the Supreme Court, 1883, Ord. XLII. r. IG, and Appendix H, No. 1. OF DEBTS. 227 deceased debtor's estate out of Court, his judgment Judgment debts are required to be paid in full by his executors ^^ pref'erenc^e or administrators out of his personal estate before in adminis- Pi.Ti,! •! • 1 , i/\ tratioii out of any of his debts by special or simple contract (c), Court. By a statute of the year 1860, in order to secure this preference, the judgment was required to be regis- tered or re-registered within five years before the death of the testator or intestate, in the same manner as was required in order to affect lands in the hands of purchasers or mortgagees {d). But these enact- Registration ments were repealed by the Land Charges Act, debts no ^" 1900 (e), as from the commencement of that Act (/) ; longer since when it appears that judgment debts are again entitled to their common law priority in administration out of Court, although they be not registered ; and that the executor or administrator will be taken to have notice of them, whether he be actually aware of them or not (g). As between themselves, such judgment debts are payable rateably, and not in the order of their date {h). The decree of a Court of equity was equivalent to the judgment of a Court of law (i). And the privilege of priority of payment extends to the judgments of every Court of record, whether superior or inferior ; but the judgment of a foreign Court is entitled to no precedence over a simple contract debt {k). In banlo-uptcy, however, and in tiic No proferenoe of judgment (f) Wcntworth's Executors, Beav. GOO ; Evans v. Williams, 2 2()r) sq., 14th ed. ; Wms. Exors. Dr. & Sm. 324 ; and cf. ante, 996, 7th ed. ; 762 10th ed. ; Ber- p. 220. rinyton v. Evans, 3 Y. & Col. 384 ; {h) Wentworth Exors. 269, anlc, p. 220. 14th ed. ; Wms. Exors. ii. 1004, (d) Stat. 23 & 24 Vict. c. 38, 7th ed. ; i. 766, 10th ed. ; Dollond ss. 3,4. SeeWilhams, R. P. 271, v. Johnson, 2 Sm. & Giff. .301, 272, 21st ed. Under this Act an 304. unregistered judgment debt had (t) Shafto v. Powe, 3 Lev. no priority over a simple contract 355. debt ; Van Gheluive v. Nerinckx, (k) Duplex v. De Proven, 2 21 Ch. D. 189. Vern. 540. See also Smith v. (e) Stat. 63 & 64 Vict. c. 26, Nicolh, 5 Ring. N. C. 208. As s. 5. to Scotch and Irish judgments, (/) 1st July, 1901 ; s. 6 (2). sec ante, p. 109, n. (i). (g) See Fuller v. Redmond, 20 16—2 228 OF CHOSES IN ACTION. debts in bankruptcy. administration in bankruptcy of the insolvent estates of deceased debtors no priority is given to creditors who have obtained judgment against the debtor, but, after satisfaction of the preferential claims, all debts are paid rateably (/). And the same rule now obtains in the administration by the Court of the insolvent estates of deceased debtors, and in the winding-up of companies (m). Remedies of judgment creditors. Imprison- ment by writ of capias ad satisfacien- dum. The Debtors Act, 18G9. The remedies of the creditor by judgment of any of the superior Courts, against the real estate of his debtor, are mentioned in the author's Treatise on the Principles of the Law of Real Property (>?). The remedies against the choses in possession of the debtor have been referred to in a previous part of the present work (o). The remedies in respect of the choses in action of the debtor will be hereafter mentioned. In addition to these remedies, such a judgment creditor might formerly have imprisoned the person of his debtor by means of the writ of capias ad satisfaciendum (p) ; but should he have done so, he would have rehnquished all right and title to the benefit of any charge or security which he might have obtained by virtue of his judgment (q). But the Debtors Act, 1809, which came into opera- tion on the 1st of January, 1870, now provides that, with the exceptions therein mentioned, no person shall be arrested or imprisoned for making default (Z) Ante. pp. 219, 223. {m) Ante, pp. 223, n. {r), 224. {))) Pp. 208 sq.. 21st ed. (o) siiite, pp. 103 sq. Ip) Bac. Abr. tit. Execution (C)3. (q) Bac. Abr. tit. Execution (D); Stat. 1 & 2 Vict. c. 110, s. 16. If, however, the debt should not have exceeded 201., the debtor could not have been imprisoned without a previous summons and examination before a commissioner of bankruptcy' or a judge of a county court, who M'oukl have ordered the commit- ment of the debtor only in case of fraud or other ill behaviour ; and the imi^risonment \\oukl not then liave operated as any satisfaction of the debt. See stats. 7 & 8 Vict, c. 9(5, s. 57 ; 8 & 9 Vict. c. 127 ; 9 & 10 Vict. c. 95, ss. 99, 103. OP DJ5BTS. 229 in payment of a sum of money (r). Power is, how- Section 5 of ever, reserved by section 5 of the Act, for any Court j^^^^ isgd"^^ to commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt, or instalment of any debt, due from him in pursuance of any order or judgment of that or any other competent Court (s). But this jurisdiction is only to be exercised where it is proved to the satisfaction Proof of of the Court that the person making default either ^aTment. has or has had since the date of the order or judg- ment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects to pay the same (t). In the case of any Court, other than the superior Courts {)■) ,Stat. 32 & 33 Vict. c. 62, s. 4 ; Buckley v. Crawford, 1893, 1 Q. B. 105 ; R. v. Birmingham County Court Judge, 1902, 2 K. B. 283. Tlie exceptions are : (1) Default in payment of a penalty, other than a penalty in respect of any contract. (2) Default in payment of any sum recoverable summarily before a justice or justices of the peace. (3) Default by a trustee or person acting in a fiduciary capacity, and ordered by a Court of Equity to pay any sum in his possession or under his control. (4) Default by an attorney or solicitor in paj'- mcnt of costs when ordered to pay costs for misconduct as such, or in paynient of a sum of money when ordered to pay the same in his character of an officer of the Court making the order ; see Re Hope, L. R. 7 Ch. .523 ; Re Strong, 32 Ch. D. 342. (.5) Default in payment for tlie benefit of creditors of any portion of a salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorised to make an order. (6) Default in payment of sums in respect of the pa3-ment of wliich orders are in the Act authorised to be made. But no person is to be imprisoned in any of the excepted cases for a longer period than one year. Imprisonment is awarded in these cases as a punishment for an oi?ence, and not as a remedy to obtain payment of the sum due ; Re Smith, Hands v. Andrews, 1893, 2 Ch. 1 ; Re Edgcome, 1902, 2 K. B. 403 ; Church's Trustee v. Hihhard, 1902, 2 Ch. 784. By stat. 41 & 42 Vict. c. 'A, in any case coming within the exceptions Nos. (3) & (4), the Court may inquire into the case and (subject to the provisoes containcil in s. 4 of the Act of 1869) maj' grant or refuse, either absolutely or upon terms, any application for a writ of attachment, or other process or order for arrest or imprisonment, and any application to stay the operation of any such \\rit, process, or order, or for discharge from arrest or imprisonment thereunder ; see Harris v. Irujram, 13 Ch. D. 338 ; Holroyde v. (larnctt, 20 Ch. D. 532. {s) 8tat. 32 & 33 \Mct. c. 62, (/) Stat. 32 & 33 Vict. c. 62, s. 5 ; Hermitage v. Kilpin, L. R. s. 5 ; see Chard v. Jervis, 9 Q. B. 9 Ex. 205 ; Evans v. Wills, I D. 178. C. P. D. 229. 230 OF CHOSES EST ACTION. Order for payment by instalments. of law and equity {u), this jurisdiction is subject to certain other restrictions {x). The Act provides that no imprisonment under this section shall operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods or chattels, of the person imprisoned, in the same manner as if such imprisonment had not taken place {y). Imprisonment under this section is punitive, and is not an execution of the judgment (z). For the purposes of section 5 of the Act, any Court may direct any debt due from any person, in pursuance of any order or judgment of that or any other competent Court, to be paid by instalments (a). So long as an order for payment by instalments remains in force, the right to issue execution on the judgment is suspended (6). But execution may issue for any unpaid instalment (c). The jurisdiction and powers of the High Court, under section 5 of the Debtors Act, 1869, are now exercised by the judge to whom bankruptcy business is for the time being assigned (d). And by the orcJrinSl Bankruptcy Act, 1883 (e), where under section 5 of the Debtors Act, 1869, application is made by a judgment creditor to a Court having bankruptcy jurisdiction, for the committal of a judgment debtor, the Court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of Receiving order in lieu (u) See ante, pp. 224, 225. (;r) Sect. 5 ; see stat. 46 & 47 Viet. c. 52, ss. 103 (4), 169. (.'/) Sect. 5. (») Stonor V. Fowle, 13 App. Cas. 20; Be Watson, 1893, 1 Q. B. 21 ; Haydon v. Haydon, 1911,2K. B. 191. (a) Stat. 32 & 33 Vict. c. 62, s. 5 ; Dillon v. Cunningham, L. R. 8 Ex. 23 ; Re Ives, 'Ex parte Addington, 16 Q. B. D. 665. (b) Montgomery v. De Bnlmes, 1898, 2 Q. B. 420. "(c) Woodham Smith v. Ed- ivards, 1908, 2 K. B. 899. (d) Bankruptcy Rules, 188(5, Nos. 3, 355, made under stat. 46 & 47 Vict. c. 52, s. 103; Genese v. Lascelles, 13 Q. B. D. 901. (e) Stat. 46 & 47 Vict. c. 52, s. 103, sub-s. 5 ; see Bankruptcy Rules, 1886, Nos. 35.5—361 ; Ex parte Fryer, 17 Q. B. D. 718; stat. 53 & 54 Vict. c. 71, s. 20 ; Be a debtor, 1905, 1 K. B. 374. OF DEBTS. 231 the judgment creditor, and on payment by him of the prescribed fee, make a receiving order against the debtor ; and in such case the judgment debtor shall be deemed to have committed an act of bankruptcy at the time the order is made, A receiving order is the first order made m bankruptcy proceedings (/). Ai-rest on mesne process {g) is allowed by the Debtors Act, 1869, under certain circumstances, if the debtor is about to quit England (h). Provision is also made by the same Act for the punishment of fraudulent debtors by imprisonment for any time not exceeding two years with or without hard labour (i). Judgment may be given against the defendant in judgment an action with his consent, as well as in consequence ^y consent. of a verdict or decision against him (k). And it is a Judge's order. (/) Stat. 46 & 47 Vict. c. 52, 8s. 5, 9 ; ante, p. 218. (g) Ante, p. 18, n. {d). {h) Stat. 32 & 33 Vict. c. 62, s. 6 ; Hume v. Druijff, L. R. 8 Ex. 214 ; Colversoii V. Bloom field, 29 Ch. D. 341. See Rules of the Suprcuie Court, 1883, Order LXIX. (i) Stat. 32 & 33 Vict. c. 62, s. 1 1 sq. ; see 46 & 47 Vict. c. 52, s. 163 ; .53 & 54 Vict. c. 71, s. 26. (k) This might take place, under the old common law procedure, by his voluntary default in omitting to plead any defence to the action, which \\'as called nihil dicil, or by his failing to instruct his attorney, whose .statement of that circum- stance was called non sum informatiis, or by a cognovit actionem, or more shortly cog- novit, by which the defendant confessed the action, and suffered judgment to be at once entered up against him ; 3 Black. Comm. 397 ; Stephen on Pleadmg, 120. Formerly also it was a very common practice for a debtor to give his creditor a icnrrant of attorney to enter up judgment against him, by way of security for the debt : but since the Acts of 1860 and 1864, whereby judg- ments ceased to operate as a charge on the debtor's lands, this method of securing a debt has become almost obsolete ; see stats. 23 & 24 Vict. c. 38 ; 27 & 28 Vict. c. 112; Williams, R. P. 272—275, 21st ed. A warrant of attorney was an authority from the intended debtor to certain attorneys to appear for him in an action of debt at suit of the intended creditor, for the amount of the intendetl judgment, and there- upon to confess the action or suffer judgment to go by default, and to permit judgment to be forthwith entered up against the intended debtor for the amount, besides costs of suit. It was generally executed as a security for a smaller sum of money, usually one-half of the amount of the judgment debt, and was accordingly accom- panied by a defeazance, declaring that it was given onlj' as a security for the smaller sum and interest, and that no execution 232 OF CHOSES IN ACTION. common practice for the parties to an action to recover a debt, where no defence is made, to obtain by consent a judge's order, authorising the plaintiff to enter up judgment against the defendant, or to issue execution against him, either at once and unconditionally (l), or more frequently at a future time, conditionally on the non-payment of whatever amount may be agreed on (m). Judgments suffered by consent have the same effect as those recovered against the defendant's will (n). All such judge's orders as before mentioned are required to be filed in the Central Office of the Supreme Court (o) within twenty-one days after the making of the order, otherwise the order and any judgment signed or entered up thereon, and any execution issued on such judgment shall be void (p). Recogniz- ances and statutes. In addition to judgment debts, other debts of should issue on the judgment to be entered up in pursuance of the \\'arrant, imtil default should have been made in payment of such sum and interest at the time agreed on : but that, in case of default, execution might be issued. The defeazance must have been \\ritten on the same paper or parchment as the warrant itself, other-wise the ^^■arrant was void ; Reg. Gen., Hil. 1853, s. 27 ; stats. 3 Geo. IV. c. 39, s. 4 ; 32 & 33 Vict. c. 62, s. 26. Warrants of attorney to confess judgment for securing any sum or sums of money are, with some exceptions, liable to the same duty (one-eighth per cent, on the money secured) as mortgages for the like purposes : Stat. 54 & 55 Vict. c. 39, First Schedule ; Wilhams, R. P. 550, n. (v), 21st ed. (/) A judgment obtained on a judge's order for immediate judgment and execution is the same thing as a judgment by nihil (licit or confession ; Bell v. Bidgood, 8 C. B. 763 ; Andrews v. Diggs, 4 Ex. 827. (m) See Archbold's Queen's Bench Practice, 1294, 1297, 14th ed. {n) Re South American, cfcc. Co., 1895, 1 Ch. 37. (o) Formerly in the office of the Court of Queen's Bench ; see Stat. 42 & 43 Vict. c. 78, s. 5. (p) Stat. 32 & 33 Vict. c. 62, s. 27 ; see Gowan v. Wright, 18 Q. B. D. 201 ; Re Smith, Ex parte Broum, 20 Q. B. D. 321. This Act (see ss. 24—28) ex- tended to judge's orders the requirement of filing already imposed by stat. 3 Geo. IV. c. 39, ss. 1, 3, in the case of all warrants of attorney, with the dcfeazances thereto, and cognovits ; see Williams v. Burgess, 12 A. & E. 635. A list of such warrants, cognovits and judge's orders, and also an index of the names of the givers, is directed to be kept open to public inspection and search ; stats. 3 Geo. IV, c. 39, s. 5 ; 6 & 7 Vict. c. 66 ; 32 & 33 Vict, c, 62, s. 28. OF DEBTS. 233 record are recognizances when duly enrolled {q), and statutes merchant, statutes staple and recognizances in the nature of statutes staple. The three last are now quite obsolete. A recognizance is an obhgation entered into before some Court of record or magis- trate duly authorized, with condition to do some particular act, as to appear at the assizes, to keep the peace, or to pay a debt (r). It is payable out of the personal estate of the debtor, in the event of his decease and of the administration of his estate out of Court, next after judgment debts {s). But in bankruptcy and in the administration of the estate of a deceased debtor in bankruptcy or in the Chancery Division, both judgment debts and recog- nizances are placed on a level with ordinary debts {t). Next in importance to debts of record are specialty Specialty debts, or debts secured by special contract contained t^<^'^*^- in a deed [u). These are of two kinds, — debts by specialty in which the heirs of the debtors are bound, and debts by specialty in which the heirs are not bound. On the decease of the debtor, both these classes of specialty debts have always stood on a level so far as regards their payment out of the personal estate of the debtor. They formerly ranked next after debts of record, and took prece- dence of all debts by simple contract {x), with the exception of money owing for arrears of rent, to Arrears of which the feudal principles of our law gave an '^°"*' importance equal to that of debts secured by deed {y). Debts by specialty in which the heirs were bound Precedence of had, however, precedence over those in which the specialties . ^ bmdiiig the heirs were not bound, in case the real estate of heir. {q) Glynne v. Thorpe, 1 B. & («) 2 Black. Conim. 4(55. See Aid. 153. antp, \>. 177. (/•) 2 Black. Comm. 341. [x] /'i«f/(OJi'sco.se, 9Rep. 88 b. (.s) 2 Wms. Exors. lOOO, 7th (/y) Wcntworth's Executors, cd. ; 7()7, 10th cd. See ante, p. 2S4, 14th cd. ; Claugh v. French, 222. 2 Coll. 277. (t) Sec ante, pp. 222, 223. 234 OF CHOSES IN ACTION. Priority of specialty debts abolished. Judgments against executors. the debtor should have been resorted to on his decease (2) ; unless he should have charged his real estates by his will with the payment of his debts, in which case all the creditors of every kind would have been paid out of the produce of such real estates, without any preference (a). But an Act passed in the year 1869 abolished the distinction as to priority of payment which formerly existed between the specialty and simple contract debts of deceased persons (6) ; providing that in the adminis- tration of the estates of persons dying after that year all creditors, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets (whether legal or equitable) of such deceased persons ; without prejudice, nevertheless, to any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt. It has been held that since this Act an executor may prefer a simple contract debt to the prejudice of a creditor by deed (c). Here it may be observed that, in the administration of a deceased debtor's estate out of Court, creditors who have obtained judgment against the executor or administrator in respect of a liability incurred by the testator or intestate, are entitled to be paid in priority to other creditors of equal degree who have not so recovered judgment {d). Since the last-mentioned Act, it has been decided (;) See Williams, R. P. 280, 21st ed. ; Richardson v. Jenkins, 1 Drew. 477, 483. (a) WiUiams, R. P. 281—283, 21st ed. (6) Stat. 32 & 33 Vict. c. 46. The public are indebted for this important Act to the late Mr. J. Hinde Palmer, Q.C. (c) Be Samson, 1900, 2 Ch. 584, overruling i?e Hankey, 1899, 1 Ch. 541, and apparently dis- approving of Wilson V. Coxwell, 23 Ch. D. 764, and Re Jones, 31 Ch. D. 440, in \\'hicli it was decided that, notwithstanding this Act, an executor caimot retain a simple contract debt to the prejudice of a creditor by deed ; see ante, p. 220. But the C. A. dechned in Re Samson to decide the point as to retainer ; and the rule in Wilson v. Coxwell has subsequently been followed by Neville, J., in Re Jennes, 53 Sol. J. 376. (d) Savyyer v. Mercer, 1 T. R. 690 ; Jennings v. Righy, 33 Beav. OF DEBTS. 235 that a judgment against an executor on a simple contract debt of the testator's should be satisfied in preference to his debts incurred by special contract, but not so secured by judgment (e). As between themselves, judgments against an executor or administrator ought to be paid in priority according to the date of the judgment, not rateably (/). But if the deceased debtor's insolvent estate be adminis- tered by the Court, either in the Chancery Division or in bankruptcy, judgments against his executor or administrator will have no priority over and will be payable rateably with his other debts (g). Debts by special contract have not and never have had any priority over simple contract debts in the event of the debtor's bankruptcy (h). For the sake of the advantage of priority which might have been gained on the decease of the debtor, his heirs were usually bound in every specialty debt. The deed creating the debt may be a deed of covenant, or a bond, or a contract under seal. The old form Covenant, of a covenant ran thus : " And the said (debtor) doth hereby for himself and his heirs, executors and administrators, covenant with the said {creditor), his executors and administrators," to pay, &c. A bond Bond, was in the following form : " Know all men by these presents, that I {debtor), of {such a place), am held and firmly bound to {creditm), of {such a 2^?«ce), in the penal sum of 1,000L of lawful money of Great Britain, to be paid to the said {creditor), or to his certain attorney, executors, administrators, or 198 ; see VVentworth, Exors. 2(51 (e) Re William.-^, L. R. 15 Eq. —282, 14th ed. ; Wins. Exors. ii. 270. 999, 1021, 1029, 7th cd. ; i. 7(53, (/) Dollond v. Johmon, 2 Sm. 764, 780. 10th cd. ; Ra Marvin, & (4iflF. 301 ; of. ante, p. 227, and 1905, 2 Ch. 490. 8uch judgments n. (//.). were not required to he registered (f/) 8ec anle, p. 223, and n. (r). in order to ohtain ])riority ; Jen- (h) 2 Blaek. Comm. 487 ; anle, nings v. Righy, uhi sup. ; see p. 219. ante, p. 227. 236 OF CHOSES IN ACTION". assigns, for which payment to be well and truly made I bind myself, my heirs, executors and adminis- trators, and every of them, firmly by these presents. Sealed with my seal. Dated this 1st day of January, 1848." In both of the above cases it will be observed that the executors and administrators were bound as well as the heirs. This, however, was not absolutely necessary ; and the covenant or bond would formerly have been equally effectual if the heirs only had been named in it (i). By the Con- veyancing Act, 1881 {k), a covenant, and a contract under seal, and a bond or obhgation under seal made after the 31st of December, 1881, though not expressed to bind the heirs, shall operate in law to bind the heirs and real estate, as if heirs were expressed ; unless a contrary intention be declared. So that there is now no necessity for the express mention either of the heirs or of the executors or administrators of the person to be bound by any covenant, bond, or contract or obligation under seal ; and such instruments are constantly drawn without naming them {I). Single bond. A bond in the form above mentioned, Avithout any addition to it, is called a single bond. Bonds, how- ever, have usually a condition annexed to them, that, on the person bound (called the obligor) doing some specified act (as paying money when the bond is to secure the payment of money), the bond shall Bond with be void. The condition of an ordinary money-bond condition. jg ^^ follows : " The condition of the above written bond or obligation is such, that if the above-bounden {debtor), his heirs, executors or administrators, shall (i) Co. Litt. 209 a ; Barber v. s. 59 ; see Williams' Convey- Fox, 2 Wms. Saund. 130. See ancing Statutes, 234. ante, p. 31, ii. (r) ; Williams' (/) See Williams' Conveyanc- Conveyancing Statutes, 234, 498, ing Statutes, 234, 235, 498, 499, note (a). 501, 502, 529. (k) Stat. 44 & 45 Vict. c. 41, OF DEBTS. 237 pay unto the said {creditor), his executors, adminis- trators or assigns, the full sum of 5001. {usually Juilf the amount named in the 'penalty) of lawful money of Great Britain, with interest for the same after the rate of bl. per cent, per annum upon the day of now next ensuing, without any deduction or abatement whatsoever, then the above-written bond or obligation shall be void, otherwise the same shall remain in full force." Bonds with conditions of this Idnd have been long in use. In former times, when the condition was forfeited, the whole penalty was recoverable {m). Equity subsequently inter- fered, and prevented the creditor from enforcing more than the amount of the damage which he had actually sustained. The Courts of law at length began to follow the example of the Courts of equity ; and according to a course of proceeding, of which there are many examples in the history of our law, the legislature more tardily adopted the rules which had already been acted on in the Courts ; and by a statute of the reign of Queen Anne it was provided that, in case of a bond with a condition to be void upon payment of a lesser sum at a day or place certain, the payment of the lesser sum with interest and costs shall be taken in full satisfaction of the bond, though such payment be not strictly in accordance with the condition (n). But if the Creditor can arrears of interest should accumulate to such an recover no more than amount as, together with the principal, to exceed the penaltJ^ the penalty of the bond, the creditor can claim no more than the penalty either at law (o) or in equity (p). If, however, there be special circum- Except in stances in the creditor's favour, as if he have a six"*^!*^! cir- ' cunistances. (m) Litt. 8. 340. 378 ; Re Dixon, 1900, 2 Ch. 5G1. (n) Stat. 4 & 5 Anne, c. 10, ss. (o) Wild v. Clarkson, 6 T. R. 12, 13. See 3 Bur. 1373 ; 2 Black. 303 ; 3 R. R. 178. Conini. 341 ; Hmith v. Bond, 10 (}>) Clarke v. Setnn. (iVea. 411 ; Bintr. 12.5 ; 38 R. R. 410 ; ,S'. C, Hnghe.t v. Wynne, 1 My. & Keen, 3 Moo. & Scott, .'328 ; James v. 20 ; Ilfttton v. Harris, 1892, A. C. Thomas, 5 B. & Ad. 40 ; 39 R. R. 547, 505. 238 OF CHOSES IN ACTION. mortgage also for the principal and interest (q), or if the debtor has been delaying him by vexatious proceedings (r), equity will then aid him to the full extent of his demand (s). Bonds for performance of agree- ments. Assignment of breaches. Bonds are frequently given, not only for securing the payment of money on a given day, but also with conditions to be void on the performance of many other acts agreed to be done, or on the payment of money by instalments. In such cases the law anciently was, that, on the breach of any part of the condition, the whole penalty became due ; and judgment and execution might be had thereon, subject only to the control of a Court of equity on application to it for reUef. But afterwards in such cases the obligee (or person to whom the bond was made) was required, in bringing his action, to state or assign the breaches which had been made by the obhgor {t) ; and although judgment was still recovered for the whole penalty, execution of such judgment was allowed to issue only for the damages in respect of the breaches actually committed ; and the judgment remained as a further security for the damages to be sustained by any future breach (u). So the law still remains, notwithstanding the changes in procedure made by the Judicature Acts (x). Although bonds and covenants have been deprived of all priority in administration over simple contract debts, they still continue in use. And the fact that {q) Clarke v. Lord Ahingdon, 17 Ves. 106; ll R. R. 31. (r) Grant v. Grant, 3 Sim. 430 ; 30 R. R. 170. {s) 6 Ves. 416. Bonds for securing the payment or repay- ment of money, or the transfer or re transfer of stock, are liable to the same ad valorem duty as mortgages for the like purpose ; Stat. 54 & 55 Vict. c. 39, first schedule; WilHams, R. P. 550, n. («/), 21st ed. {t) See the judgment of Parke, B., iu Grey v. Friar, 15 Q. B. 891, 910 ; Wheelhouse v. Ladbrooke, 3 H. & N. 291. (u) Stat. 8&9WiU. III. c. 11, s. 8 ; Hardy v. Bern, 5 T. R. 636 ; Willoughby v. Sivinton, 6 East, 550 ; 1 Wms. Saund. 57, n. (1) ; Hurst V. Jennings, 5 B. & C. 950 ; S.C.,8 Dow. & Ry. 424. (x) Tuther v. Caralampi, 21 Q. B. D. 414 ; see ante, pp. 21, 160, 161. OF DEBTS. 239 a bond or covenant may be enforced at any time within twenty years, whilst a simple contract debt cannot be enforced after six years, is a reason for their employment. The last and most numerous, though least impor- Simple con- tant class of debts in the eye of the law is debts by ^''''''^ '•''^*' simple contract (y), which are all debts not secured by the evidence of a Court of record, or by deed or specialty. On the decease of the debtor, these debts were formerly payable out of his personal estate, by his executor or administrator, subse- quently to all debts of record or by specialty, except voluntary bonds, which were payable after Voluntary all simple contract debts, but before any of the ^^nds. legacies (z). But now, as we have seen, all simple contract debts are payable pari passu with debts secured by specialty. Voluntary bonds and cove- Voluntary nants under seal still continue in use, inasmuch as ^^^^^^ ^^l^ ' covenants. an agreement made by deed is binding without any consideration (a), and an action at law may conse- quently be brought upon a voluntary deed which would not otherwise lie upon a mere voluntary promise. In the administration of deceased persons' estates out of Court, voluntary bonds and covenants are still payable after other debts for valuable consideration, whether by specialty or simple con- tract (&). But in bankruptcy and in the adminis- tration of a deceased debtor's estate in bankruptcy or in the Chancery Division, voluntary bonds and covenants are payable pari passu with other debts (c). Debts secured by bills of exchange and promissory Bills and notes have no preference over the other simple "°*^^- (y) Avte, p. 177. (c) Stat. 4G & 47 Vict. c. 52, (2) Lo7)ias V. Wright, 2 M5^ & ss. 40, 125 ; Ex qMrte Pottinger, Keen, 7f)9 ; Watson v. Parker, G Re Steinirt, 8 Ch. D. 621 ; Re Beav. 283. Whitakn; 1901, 1 Ch. 9 ; ante, (a) Ante, pp. 177—178. pp. 219, 223. [b) See ante, p. 222. 240 OF CHOSES IN ACTION. Money at a bank. contract debts of the deceased (d). A particular kind of simple contract debt deserving special mention is what is commonly called money or cash at a banker's. Money paid into a bank to a customer's account is really lent to the banker to spend, so that the property in the particular coins paid in passes to the banker (e), who merely becomes bound to repay an equal amount (/). The relation of a banker to his customer is therefore that of a debtor to his creditor, with a super-added obligation on the former to honour his customer's cheques, so long as the balance to the holder's credit is sufficient to meet them (g). Preferential debts by statute. Besides the priorities attached to debts by the common law, a preference in payment is given to certain particular debts by statute. Thus, debts due to a parish from an overseer of the poor for money received by virtue of his office (h), and debts due to a registered friendly society from its officer for money of the society in his possession (i), are required to be paid by his executors or administrators in preference to all his other debts, except debts due to the Crown (k). And by the Regimental Debts Act, 1893 (l), certain preferential charges (chiefly for military debts) are given on the property of a person dying while subject to military law. Again, in bankruptcy, a paramount claim is given by statute to a registered friendly society for debts from its officer for money of the society in his possession (m) ; {d) Yeoman v. Bradshuic, 3 Salk. 164. (e) Ante, p. 74. (/) Ante, p. 213, and n. (h). See ante, p. 206, n. (Z), as to cheques paid in to a bank. (gf) Parker v. Marchant, 1 Ph. 356, 361 ; Pott v. Clegg, 16 M. & W. 321 ; Foley v. Hill, 2 H. L. C. 28, 36. 44. 45 ; Re Derhi/shire, 1906, 1 Ch. 135. (h) Stat. 17 Geo. II. c. 38, s. 3, (i) Stat. 59 & 60 Vict. c. 25, s. 35, replacing several earlier statutes ; see Re Miller, 1893, 1 Q. B. 327 ; Re Eilheeh, 1910, 1 K. B. 136. (/i) The Crown does not appear to be bound by these statutes; see ante, p. 219, n. (k). (I) Stat. 56 Vict. c. 5, s. 2. (m) See note (i) above. OF DEBTS. and, subject to this, certain particular debts are required by the Bankruptcy Acts to be paid in full in preference to all others. These are, spealdng generally, one year's rates and taxes, the wages or salary of any clerk or servant for services rendered during the last four months up to 501., and the wages of any labourer or workman for services rendered during the last two months up to 251. (n), and, as between themselves, they rank equally for payment. And under the Preferential Payments in Bankruptcy Act, 1888 (o), these same debts are required to be paid in full in preference to all others, not only in bankruptcy and in the administration in bankruptcy of the insolvent estates of deceased persons, but also in the administration of such insolvent estates in the Chancery Division (p), and in the winding-up of joint stock companies. It is an undecided question whether this Act gives any priority to the bankruptcy preferential debts in the administration of a dead man's estate out of Court ; and if so, whether these debts should be first dis- charged in preference to the other claims above mentioned, to which priority is given by statute (q). But it is considered that these other claims have no preference in the administration of a dead man's insolvent estate in bankruptcy ; for then the bank- ruptcy preferential claims alone are to be discharged in priority to other debts, which rank equally for payment (r). And subject to the paramount claim of the Crown, the same rule appears to obtain in (w) Stat. 46 & 47 Vict. c. 52, 593. ss. 40, 125, amended by 51 & 52 (q) Consider the wording of Vict. c. 62. Stat. 51 & 52 Vict. c. 62, s. 1 (6), (o) Stat. 51 & 52 Vict. c. 62. and Re Heywood, vhi sup. ; and The Crown does not appear to see Re Hargreave-'f, 44 Ch. D. 236, be bound by this statute, except 242. as regards bankruptcy and ad- (r) See stat. 46 & 47 Vict. c. ministration in bankruptcy of 52, ss. 40 (1, 2, 4), 125 (7), deceased person's estates ; ante, amended by 51 & 52 Vict. c. 62 ; p. 219, and n. (k). Re ]VilUa7ns, 36 Ch. D. 573, 577 ip) Re Heywood, 1897, 2 Ch. —582. w.p.p. 16 241 242 OF CHOSES IN ACTION. the administration of a dead man's insolvent estate in the Chancery Division (s). There has been added to the preferential debts in bankruptcy and the winding-up of companies all the amounts, not exceeding in any individual case lOOZ., due in respect of any compensation payable under the Workmen's Compensation Act, 1906 (t), the liability wherefor accrued before the date of the receiving order or of the commencement of the winding-up. But it docs not appear that sucli claims enjoy the like priority in the administration of the estates of deceased employers, whether in or out of Court. Summary of the law as to the order of imyment of debts. It will be seen, then, that according to the common law of England, there were five principal kinds of debts, namely, crown debts, judgment debts, specialty debts in which the heirs were bound, specialty debts in which the heirs were not bound, and simple contract debts. Each of these classes had a law of its own, and remedies of varying degrees of efficacy. The privileges attached to the various kinds of debts were to a certain extent modified by statute, judgments having been required to be duly registered in order to maintain their priority (u), and special and simple contract debts having been placed on an equality as regards payment {x). But the anomaly long remained that, whilst a man's debts were payable according to the estabHshed priorities in case he died insolvent, his general creditors were at once brought to an equahty if he happened to be adjudged bankrupt. As already mentioned (y), at the present time, the bankruptcy rules as to the priority of debts are alone applicable in the adminis- (s) Ante, pp. 219, 223. (0 Stats. 6 Edw. VII. c. 58, s. 5(3); see s. 5(1, 5); 8 Edw. VII. c. 69, s. 209 (1) (d), which does not, however, apply where the company is being wound up voluntarily merely for the pur- pose of reconstruction or amal- gamation wdth another company. (u) Ante, p. 227. (x) Ante, p. 234. (y) Ante, pp. 223, 224. OF DEBTS. 243 tration of the insolvent estates of deceased persons in bankruptcy ; and the same rules obtain, subject to the paramount claims of the Crown, in the administration of such estates in the Chancery Division, and in the winding-up of companies. But in establishing this result the law has taken a particularly crooked course (z). And in consequence (?) It was enacted by section 10 of the Judicature Act, 1875 (.stat. 38 & 39 Vict. c. 77), that in the administration by the Court of the insolvent estates of deceased persons, and in the ^\'inding-up of com- panies, the same rules shall prevail and l)e observed as to tlie respec- tive rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities, and future and contingent liabilities respectively, as may be in force for the time being under the law of banJvruptcy. But for a long time the weight of authorit}^ was in favour of the view that the chief effect of this enact- ment was to do away with the old rule of administration established in Mason v. Bogg, 2 My. & Cr. 443, enabling a secured creditor to keep for him.self the full benefit of his security and yet to prove a claim to be paid the whole amount of his debt out of the deceased tlebtor's general assets ; see Lee v. Nuttall, 12 Ch. D. (jl, 65, deciding that this enactment does not deprive the executor of his right of retainer ; Be Hopkins, 18 Ch. D. 370. It was accordingly at first considered that the Act did not import into the administration by the Court of the insolvent estates of deceased persons the rule of bankruptcv that debts are payable pari passu ; it was decided that judgments against the executor {Smith, v. Morgan, 5 C. P. J^. 337), and registered judg- ments against the d(>eeased still enjoyed the same priority as before ; Re Maggi, 20 Ch. 1). .545 ; Ee M'Mi/n, 33 Ch. D. 575 (ante, pp. 227^ 234) ; and it was recognised, even by the Court of Appeal, after the Bankruptcy Act, 1883, that in the judicial administration of a deceased debtor's insolvent estate the order of payment of debts would be different according as tlie a{hninistration were ordered to be made in the Chancery Divisif)n or in baiikruptey ; see Re Williams 36 Ch. D. 573 ; Re Baker, 44 Ch. D. 2()2 ; a;(te, pp. 222, 223. After this, the Court of Appeal decided that the enactment in question imports into administration in the Chancery Division a rule made by the Married Woman's Property Act, 1882, s. 3, whereby a wife's claim for any money or other estate lent or entrusted by her to her husband for the purposes of any trade or business carried on bv him is postponed, in ease of his bankruptcy, to the claims of all his other creditors for value ; Re Leng, 1895, 1 (Jh. 652 ; and in that case the Court criticised and appeared to re])udiate the construction adopted in Re Maggi, without, however, overruling that decision. It was next decided that, by the combined operation of the 10th section of the Judicature Act, 1875, and of the Preferential Payments in Bank- ruptcy Act, 1888, the debts payable preferentially in bankruptcy were to have precedence in administration in the Chancery Division ; Re Hei/irond, 1897, 2 Ch. 593 ; see ante, p. 241. And finally, in Re Whitakcr, 1901 , 1 C'h. 9, the Comt of Appeal held that. I)y virtue of the enactment above quoted, in administration in the Chancery Division debts due by voluntary covenant are paya})le pari pat.iu with debts incurred for value ; and in that ease Smith v. Morgan and Re Maggi were distinctly overruled ; see atile, pp. 222, 223, 239. It has since 16—2 244 OF CHOSES IN ACTION. \Vinding-iip of joint-stock companies. of the omission of the legislature to provide for the case of the administration of a dead man's insolvent estate out of Court, his executor or administrator is still bound strictly to observe the old priorities, on pain, if he disregard them, of rendering himself personally Uable to satisfy the debts {a). The accompanying table shows the exact order of the payment of debts in banlo-uptcy, and in the adminis- tration of a deceased debtor's estate out of Court, in the Chancery Division, and in bankruptcy. In the winding-up of companies the claims of the Crown appear to remain paramount (6) ; subject to which the debts payable preferentially in bankruptcy are given precedence (c) ; and all other debts are payable pari passu (d). It is surely time that debts were made payable in the same order in every case of insolvency. Interest on debts. The next subject which claims our attention is been decided that, in administration in the Chancery Division, the payment of interest on debts is governed by the bankruptcy rules, and the interest due on a judgment debt is entitled to no priority ; i?e Whitaker, 1904, 1 Ch. 299 ; and (in Ireland) that judgments against an executor are paj'able pari passu A\ith other debts ; M'Causland v. aCallaghan, 1904, I. R. 376. (a) Ante, p. 220 and nn. (o) and {q). (b) Ante, p. 224. (c) Stat. 8 Edw. VII. c. 69, s. 209, replacing 51 & 52 Vict. 0. 60, s. 4. These debts also have priority over the claims of holders of debentures under any floating charge created by a company registered in England or Ireland ; stat. 8 Edw. VII. c. 69, s. 209 (2) (b), replacing 60 Vict. c. 19 ; see post. Part II. ch. VI. at end. (d) This rule was laid down under the Companies Act, 1862, now replaced by the Companies (Consolidation) Act, 1908 ; stats. 25 & 26 Vict. c. 89 ; 8 Edw. VII. c. 69 ; see Black fr m its ofhccr for mon<.\ of ihe sociotj in his posHcssion ante p 240 2 {a) All parocfiial or ollioi local rates duo frc of tlip rectivin^ order or his death a» the ca^e ii Mithin t\ eU months next before that time ai income tax a.s&i'if.cdoa the banl rupt or the dcci as of the r rkr ! Icath as the ca^c i (b) Ml I clerk oi soivani proportion it t th ( {d} In the bankr q t Ihe debts spociti d un lcr(2) rank tquil unksb file propcrt\ of the bankrupt or tlic thcv are t ah ate tn equal pr pnrti n'^ hf ra the bankrupt r the de oa. ed at the datt a\ be and having bectnic due apd pajable id all a*si8hnl taxca land tax pr ptrty or e lupio thcSth of ipr In \tbvf re th datt icn thcmsehes i I t» insuflicient to i mstlves The^ i to be paid in full rsnn engaged or about to engage in an^ itc of mtcrct var\ang « ith the profits r m rf "ip t of th share of the profits lent of a bankruptcy (see He Bnmpiu Jilanco of his debt. ,■... M'Murdo, 1902. ! . miners employed ii (B.) In the administration of deccasoi executors or admuiistrators out of Court. status by thi?u' Judgments obtained against the deceased nn(e pp 220 227 4 Rec({,ni7ancc-s and statutiJt anlr p 2ii -> Ju Igmtnts rec vt rud against the executor or admiiiiBtrator on special or simple c liabilities avte p 234 Hold It thei (C ) In the administration of the persons in the Chancery Division ecialtj 1 Crown debts b^ record m 2 1 hi other debts accordii „ admmibtrator s right of retainer of his olvent estates of deceased » the c the bftnlaiiptc\ rules hut subject t lis own debt m prcfc " ''^--- I, and to the Cro«il a pnontj c governed by tlis same rules as prevail in bankruptcy ; r company working the mines foi three months' wages for each person. OF DEBTS. 24/ that of interest upon debts. The absurd prejudice which anciently caused interest, under the name of usury, to be considered unlawful, retained some hold upon our law long after the taking of interest was rendered lawful by Act of Parliament (e). In ordinary cases a debtor was allowed to withhold payment of his debt, without being obhged to give to his creditor the poor recompense of interest on the money he was making use of for his own benefit. For it was a general rule of law that interest was not payable on any debts, whether by specialty or simple contract, unless expressly agreed on, or unless a promise could be implied from the usage of trade or other circumstances, or unless the debt were secured by a bill of exchange or promissory note, which, being mercantile securities, always carried interest (/). But in equity interest was more frequently allowed (g). And now, by an Act of 1833 {h), interest is recoverable on all debts payable by virtue of any written instrument at a certain time, from the time when such debts w.ere payable, or if payable otherwise, then from the time when demand of payment shall Imve been made in writing, so as such demand give notice to the debtor that interest will be claimed from the date of such demand until the time of payment. But where these conditions are not fulfilled, the old rule still prevails {%). (e) Stat. 37 Hen. VIII. c. 9. ss. 28, 29 ; Hyde v. Price, 8 Sim. See Williams, R. P., .545, n. (e), 578 ; Genke v. Ross, 23 W. R. 21st ed. 658; Duncombe v. Bn'r/htoH if) Iliijyins V. Sargent, 2 B. & Clvb Company, L. R. 10 Q. B. C. 348 ; 2() R. R. 379 ; .S'. 6'., 3 371. Dow. & R. ()13 ; Foster w. Weston (i) Ward v. Eyre, 15 Ch. D. (j Bing. 709 ; Page v. Newnuni, 9 130 ; Be Gostnati, 17 Ch. D. 771 ; B. & C. 378 ; 33 R. R. 204 ; London, ClmtfuDn and Dover Ry. Jjondon, Chatham and Dover Ry. Co. v. South Eastern Ry. Co., (Jo. V. Sovlh Eastern Ry Co., 1893, A. C. 429 ; Re Lloyd 1893, A. C. 429. Edwards, Gl L. J. N. S. Ch. 22 ; ((j) See iMivndes v. Collins, 17 Tau<3 v. /IrcMafe, 11 Times L. R. \'es. 27 ; 2 Fonb. Eq. 429 ; C. P. 452 ; cf. Re Anglesey, 1901, 2 Ch. Cooper, 426 sq. 548. (A) Stat. 3 & 4 Will. IV. c. 42, 246 OF CHOSES IN ACTION. Sureties. Surety entitled to creditor's securities. The payment of a debt is sometimes secured by a surety, who makes himself hable, together with the principal debtor for the payment. If the surety should pay the debt, he mil become the creditor of the principal debtor for the amount ; but although the debt paid should have been secured to the original creditor by the bond under seal of the debtor and his surety, the surety having paid the debt, would formerly have become the simple contract creditor only of the principal debtor ; unless he should have taken the precaution to procure from such debtor a counter-bond for his own indemnity ijc). The surety, however, would have been entitled to the benefit of all collateral securities which the creditor, whom he had repaid, held for the debt {I) ; but he was not to be entitled to the original bond executed by the debtor, because that was at an end by the very fact of the payment (w). In the words of Lord Brougham {n), the Court admitted the surety's right, as against the principal debtor, to stand in the shoes of the creditor, but said there were no shoes for him to stand in. But by the Mercantile Law Amendment Act, 1856, every surety who pays a debt is now entitled to have assigned to him every judgment, specialty or other security which shall be held by the creditor in respect of such debt, whether such judgment, specialty or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt ; and such person shall be entitled to stand in the place of the creditor and to use all the remedies, and, if need be and upon a proper indemnity, the name of the creditor, in any action to obtain from the principal {k) Copis V. Middleton, Turn. & Russ. 224. (Z) Forhes v. Jackson, 19 Ch. D. 615. {m) Turn. & Russ. 231 ; Dow- biggen v. Bourne, 2 You. & Coll. 442 277 Jones V. Dainds, 4 Russ., Caulfiehl v. Maguire, 2 Jones & Lat. 1G4, 1(58. [n) Hodgson v. Shaw, .3 My. & Keen, 183, 194. OF DEBTS. 247 debtor indemnification for his loss ; and the pay- ment made by the surety shall not be pleadable in bar of any action or other proceeding by him (o). If there should have been more than one surety, any Co-sureties. one surety, paying or having judgment entered up against him for the whole debt, is entitled, according to general principles of justice, to contribution from his co-sureties in equal shares, or if they should have been sureties for unequal amounts, then in propor- tion to the respective amounts to which they have made themselves hable (p). And the remedies given by the Act above mentioned are extended to co- sureties ; provided that no co-surety shall be entitled to recover from any other co-surety, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last- mentioned persons shall be justly liable (g). If any surety obtain a security against his habihty from the principal debtor, and call for contribution from liis co-sureties, he must bring his security into hotch-pot for the benefit of all (r) ; so that a security obtained by one co-surety enures for the benefit of all the co-sureties until it be exhausted, or they be recouped all thej'^ have paid (s). If any surety has become insolvent, the others must contribute rateably to the payment of the whole debt (t). But if the surety has paid no more than (o) Stat. 19 & 20 Vict. c. 97, same debt ; Crayt/iorne v. Sivin- s. 5 ; Lockhart v. Reilly, 1 De G. burne, 14 Ves. 160 ; 9 R. R. 264 ; & J. 464 ; Forbes v. Jackaon, 19 Coope v. Twijman, T. & R. 426 ; Ch. D. 615 ; Re M'Myn, 33 Ch. 24 R. R. 89 ; Pendlebary v. D. 575 ; Re Lord Churchill, 39 Walker, 4 Y. & C. 424 ; Re Ch. D. 174. Denton's Estate, 1904, 2 Ch. 178. (p) Bering v. Earl of Win- (q) Stat. 19 & 20 Vict. c. 97, chehea, 2 Bos. & Pul. 270, 272, s. 5 ; Re AVMyn, 33 Ch. D. 575 ; 273 ; 1 R. R. 41 ; Brown v. Lee, Re Parker, 1894, 3 Ch. 400. 6 B. & C. 689 ; , Co., Ld., 1909, 2 Ch. 401; of. 2 K. B. 307. Be Mitchell, 1913, 1 Ch. 201. {g) Oriental Financial Corpora- 250 OF CHOSES IN ACTION. Alienation of debts. Charges on the book debts of a company. Involuntary alienation of debts. The subject of the ahenation of debts has been already considered, and we have seen that, according to the modern common law, debts were, as a rule, assignable only by a power of attorney enabhng the assignee to sue in the original creditor's name ; although in equity debts were directly assignable (Z). The only debts directly assignable by subjects at common law were those due upon bills of exchange, of which the holders were enabled to sue in their own names by mercantile custom incorporated into English law (m). The same incident of negotiabihty was annexed to promissory notes by a statute of Anne (n) ; and certain particular choses in actions were made directly assignable by statute (o). But since the Judicature Acts came into operation on the 1st of November, 1875, all debts and other legal choses in action have been directly assignable at law by writing under the hand of the assignor (not purporting to be by way of charge only), accom- panied by express notice in writing of the assignment to the debtor or other person hable (p). The previous necessity for notice to the debtor of the assignment of a debt has been already explained (g). Every mortgage or charge created after the 1st of July, 1908, on any book debts of a company regis- tered in England or Ireland, must be registered with the Registrar of Companies within twenty-one days after its creation, or it will be void, so far as any security on the company's property is thereby con- ferred, against the liquidator and any creditor of the company (r). Debts, being considered as mere rights of action. (I) Ante, pp. 34, 35. (m) ylH). It appears that an Infant. infant under the age of twenty-one years cannot be a bankrupt, because by the law of England he cannot be made liable on contracts entered into by him in (A-) This has been the law over 1 & 2 Viet. e. 110, replacing since the Bankruptcy Act, 1861. 7 ({eo. IV. c. 57, continued and Before that Act, traders only amended by 11 Geo. IV. and were subject to the bankruptcy 1 Will. IV. c. 38 ; 5 & 6 Vict, laws. And under the present c. 116 ; 7 & 8 Vict. c. 96; 10 law no person, not being a & 11 Vict. c. 102 ; 24 & 25 Vict. trader within the meaning of c. 134, ss. 19 — 27, 69 ; 32 & 33 that Act, is to be adjudged bank- Vict. c. 71, ss. 6, 118; 46 & 47 rupt in respect of a debt con- Vict. c. 52, ss. 4, 126. tracted before the passing of (I) Cooke v. Charles A. Vogeler that Act. Previously to that Co., 1901, A. C. 102, 112. Act, however, non-traders might, (»/i) Ex parte Carrington, 1 Atk. upon surrendering all their pro- 206. perty for the bcnelit of their («) Ex parte Franks, 7 Bing. creditors, obtain their discharge 762 ; 1 M. & Scott, 1. from custody for tlebt and pro- (o) Stat. 45 & 46 Vict. c. 75, s. tection from future process 1, sub-s. 5, preserved by 46 & 47 against their persons or property, Vict. c. 52, s. 152 ; see Re Lijnes, or (if they had become indebted 1893, 2 Q. B. 113 ; Re Helsbij, 10 %\ithout any fraud or gross and Times L. R. 87 ; Re Wheeler's culpable negligence) as complete Settlement, 1899, 2 Ch. 717; Re a discharge^from their debts as Worship, 1901, 1 K. B. 309; Re if they had become bankrupt, tSiinon', 1909, 1 K. B. 201. under the Insolvent Debtors (p) Ex parte Jones, In re Acts, all repealed ))v the Bank- C'rissrU, 12 Ch. D. 484 ; Re a ruptcy Act, 1861." See stats. Debtor, 1898, 2 Q. B. 576. 268 OF CHOSES IN ACTION. Lunatic. Persons having privi- lege of Par- liament. Acts of bank- ruptcy. the course of trade or otherwise, except for neces- saries (q). It is a question whether a lunatic can be made bankrupt (r). If a person having privilege of Parhament commits an act of bankruptcy, he may be dealt with under the Bankruptcy Act, 1883, in hke manner as if he had not such privilege {s). A person becomes bankrupt by committing an act of bankruptcy (i). By the Bankruptcy Act, 1883 {u), a debtor commits an act of bankruptcy in each of the following cases : — (a.) If in England or elsewhere he makes a con- veyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally {x) : (b.) If in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of Ms property, or of any part thereof (y) : [q) Belton v. Hodges, 9 Bing 365, 370 ; stat. 37 & 38 Vict. c. 62, (uite, p. 173 ; B. v. Wilson, 5 Q. B. D. 28 ; Ex parte Jones, Re Jones, 18 Cli. D. 109 ; Lovell V. Beauchamp, 1894, A. C. 607, 611. (r) See Be Farnham, 1895, 2 Ch. 799. (s) Stat. 46 & 47 Vict. c. 52, s. 124. The same law prevailed under the Acts of 1869, 1861, 1849, and 1825 ; stats. 32 & 33 Vict. c. 71, s. 120 ; 24 & 25 Vict, c. 134, s. 69 ; 12 & 13 Vict. c. 106. s. 66; 6 Geo. IV. c. 16, s. 9. Traders having privilege of par- liament were first expressly de- clared to be subject to the bankrupt laws by stat. 4 Geo. III. c. 33. But, independently of the express provisions of the various bankrujDtcy statutes, a person, \\ho enjoys privilege of parliament, is not thereby ex- empted from liability to be adjudged bankrupt ; Ex parte Meymot, 1 Atk. 196, 201 ; Duke of Neivcastle v. Morris, L. R. 4 H. L. 661. (t) Wright, J., Be Beis, 1904, 1 K. B. 451, 455 (not affected by his being overruled on the main point ; ). And if the creditors at the first meeting, or any adjournment thereof, by ordinary resolution resolve that the debtor be adjudged bankrupt, or pass no resolution, or if the creditors do not meet, or if a composition or scheme is not accepted or approved in pursuance of the Act within fourteen days after the conclusion of the examination of the debtor, or such further time as the Court may allow, the Court shall adjudge the debtor bankrupt (g). On the application of the debtor himself the Court may adjudge him bankrupt at the time of making a receiving order, or at any time thereafter (r). And when a receiving order has been made, and a quorum of creditors do not attend at the time and place appointed for the first meeting, or one adjournment thereof, or where the official receiver satisfies the Court that the debtor has absconded, or that the debtor does not intend to propose a composition or scheme, or in any of the other cases mentioned in the Act, the Court may, either on the application of a creditor, or of the official receiver, forthwith adjudge the debtor bankrupt [s). Notice of every order adjudging a debtor bankrupt must be duly gazetted and advertised (t). Composition or scheme of arrangement. A debtor against whom a receiving order has been {«) Sect. 15, and first schedule; 53 & 54 Vict. c. 71, s. 18 ; rules (1886) 249—257; rules (1890) 58—00. (o) Stat. 46 & 47 Vict. c. 52, s. 16 ; rules (1886), 217. 218. {f) Sect. 17 ; stat. 53 & 54 Vict. c. 71, s. 2 ; rules (1880) 6, 184—189. (r/) Stat. 46 & 47 Vict. c. 52, s. 20. See Re Thurloiv, 1895, 1 Q. B. 724. (/•) Rule (1886) 190. (s) Rule (1886) 191. (t) Stat. 46 & 47 Vict. c. 52, a. 20, sub-s. 2 ; rule (1886) 193. OF BANKRUPTCY. 277 made is not necessarily adjudged bankrupt, for he may make a proposal for a composition in satisfac- tion of his debts, or a scheme of arrangement of his affairs [u). And if his proposal be accepted by a majority in number and three-fourths in value of his creditors who have proved their debts, at a meeting held for the purpose, and be approved by the Court (x), it will be binding on all his creditors (y), and will release him from all his liabilities to them which would be provable in bankruptcy (z). But it will not release the debtor from any liabihty under a judgment agamst him in an action for seduction, or under an affiliation order, or under a judgment against him as a co-respondent in a matrimonial cause, except to such an extent, and under such conditions as the Court expressly orders in respect of such liability (a). If a trustee be appointed to carry out such a composition or scheme of arrange- ment, the debtor's property to be administered by him (b) will vest in him in the same manner as a bankrupt's property vests in the trustee under the bankruptcy ; and he will, generally speaking, have the same powers and duties with respect to such property as a trustee in bankruptcy has with respect to the bankrupt's property (c). When a composition or scheme is approved of, the official receiver shall, on payment of all expenses incident to the proceed- ings, forthwith put the debtor or the trustee under the composition or scheme, or any other person to whom the debtor's property is to be assigned under (u) Any such composition or [z) Ante, pp. 218, 219, and scheme must proviile for ])av- n. (h). mcnt in priority to otiicr deijts (a) Stat. 53 & 54 Vict. c. 71, of all debt directed to be so paid s. 3, replacing 46 & 47 Viet. c. 52, in the distribution of the pro- s. 18 ; see Ex parte Reed and pertv of a bankrupt; see ante, Bowen, 17 Q. B. D. 244. pp. 241, 244, and Table. {h) Sec Re Groom, 1891, 1 Ch. (x) See Re Pillimj, 1903, 2 ()95. K. B. 50; Re Flew, 1905, 1 (c) Stat. 53 & 54 Vict. c. 71, K. B. 278. s. 3, sub-ss. 16, 17. (y) Ante, p. 262. 278 OF CHOSES IN ACTION. the composition or scheme, as the case may be, into possession of the debtor's property ; and the Court shall discharge the receiving order (d). Where default is made in any payment under an approved composition or scheme either by the debtor or the trustee (if any), no action hes to enforce such payment, but the remedy of any person aggrieved is by application to the Court (e), which is empowered to enforce the provisions of the composition or scheme (/). If default is made in payment of any instalment due in pursuance of the composition or scheme, or if it appears to the Court that the same cannot proceed without injustice or undue delay to the creditors or the debtor, or that the approval of the Court was obtained by fraud (g), the Court may, on application by the official receiver, the trustee or any creditor, adjudge the debtor bank- rupt (h), and annul the composition or scheme with- out prejudice to anything duly done thereunder (i). Power to accept com- position or scheme after bank- ruptcy adjudication. A debtor's affairs may also be liquidated under the Act of 1883 by means of a composition or scheme of arrangement proposed by him, accepted by a majority* in number and three-fourths in value of liis creditors, who have proved their debts, and approved by the Court, after an adjudication of bankruptcy ; in which case the same proceedings are taken and the same consequences ensue as in the case of a composition or scheme accepted before adjudication. If the Court approves the composi- tion or scheme it may make an order annulling the bankruptcy, and vesting the property of the bank- rupt in him or in such other person as the Court {d) Rule (1890) 30, replacing rule (1886) 208. (e) Rule (1890) 33, replacing rule (1886) 211. (/) Stat. 53 & 54 Vict. c. 71, 3. 3, 8ub-8. 14. (g) See Ex parte Moon, 19 Q. B. D. 669. (h) See jRe McHenrrj, 21 Q. B. D. 580. {i) Stat. 53 & 54 Vict. c. 71 s. 3, sub-s, 15. OF BANKRUPTCY. 279 may appoint, on such terms, and subject to such conditions, if any, as the Court may declare (k). But the Court may adjudge the debtor bankrupt, and annul the composition or scheme, as in the case of a composition or scheme approved before adjudication {I). When a debtor is adjudged bankrupt (m), his Vesting of property becomes divisible among his creditors, and ^^^ J^"^* ^ vests (without any conveyance), first, in the official receiver, as trustee in the bankruptcy (n), and then in the trustee appointed by the creditors, on his appointment (o). The estate of the bankrupt is then administered by the trustee, under the control of a committee of inspection of not more than five Committee of nor less than three persons chosen from among the ''^•''P"^'^*'!'''^- creditors (p), subject to any directions that may be given by resolution of the creditors at any general (k) See Be Pearce, 1909, 2 Ch. 492. (I) Stat. 46 & 47 Vict. c. 52, s. 23, amended by 53 & 54 Vict, c. 71, s. 6. (m) Ante, p. 276. (n) Turquund v. Board of Trade, 11 App. Cas. 286. (o) Stat. 46 & 47 Vict. c. 52, ss. 20, 21, 54. Stats. 34 & 35 Hon. VIH. c. 4, s. 1, and 13 EUz. c. 7, s. 2, gave power to the commissioners, who used then to be appointed to direct each particular bankruptcy, to sell or otherwise to deal with all the bankrupt's property for the bene- fit of his creditors. Stat. 5 Geo. II. c. 30, .ss. 26, 30, provided that the commissioners should assign the bankrupt's estates and effects to assignees chosen by the creditors. From that time until the year 1831, the estate of a l)ankrupt was always expressh' conveyed by the commissioners to the assignees ; see lledop v. Baker, 6 Ex. 740, 747 vy. An Act of 1831, which established a Court of Bankruptcy in London and appointed fixed commis- sioners, and the Bankruptcy Acts of 1849 and 1861, provided that the estate of a bankrupt should vest in the assignees with- out any conveyance. Under these Acts there were official assignees, who were officers of the Bankruptc}' Court, as well as creditor's assignees ; and under the Acts of 1831 and 1849 one of the former acted jointly with the latter after their appoint- ment. But the Act of 18()1 left the management of the estate to the creditor's assignee^ aljne. See stats. 1 & 2 Will. IV. c. 56, ss. 22, 25, 26 ; 12 & 13 Vict. c. 106, ss. 38—45, 102, 139, 141, 142 ; 24 & 25 Vict. e. 134, ss. 108. 116—129. The Act of 1869 abolished the official assignees, and substituted for the creditor's assignees a trustee to be appointed at a general meeting of creditors ; stat. 32 & 33 Vict, c. 71, ss. 14, 17. (p) Stat. 46 & 47 N'ict. c. 52, ss. 22, 56, 57, 89 ; stat. 53 & 54 Vict. c. 71, s. 5. 280 OF CHOSES IN ACTION. meeting (q). And the administration of the estates of bankrupts is placed under the supervision of the Board of Trade (r). Stringent provisions are made to secure the discovery of all the debtor's property (s). Description of bankrupt's property divisible amongst creditors. The property of the bankrupt divisible amongst his creditors, and in the Act referred to as the property of the bankrupt {t), shall not comprise the following particulars : (1) Property held by the bankrupt on trust for any other person (u) : (2) The tools (if any) of his trade and the necessary wearing apparel and bedding of himself, his wife and children, to a value, inclusive of tools and apparel and bedding, not exceeding twenty pounds in the whole : But it shall comprise the following particulars : (i.) All such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge ; and (ii.) The capacity to exercise and to take proceed- ings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for liis own benefit at the commencement of his bank- ruptcy or before his discharge, except the right of nomination to a vacant ecclesiastical benefice (x) : and (q) Stat. 46 & 47 Vict. c. 52, s. 89. (r) Sects. 74—81, 91. (.s) Sects. 24—27 ; stat. 53 & 54 Vict. c. 71, s. 7. (l) By .«tat. 46 & 47 Vict, c. 52, s. 168, in this Act " pro- perty " includes money, goods, things in action, land, and every description of property, whether real or personal, and whether situate in England or elsewhere ; also obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to pro- perty as above defined. («) See Jenninqs v. Mather, 1901, 1 K. B. 108"; St. Thomas s Hospital V. Richardson, 1910, 1 K. B. 271 (as to where the trustee has a lien on the trust property). [x) See Nichols v. Nixey, 29 Ch. D. 1005, OF BANKRUPTCY. 281 (iii.) All goods being, at the commencement of the bankruptcy, in the possession, order or % disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof ; provided that things in action other than debts due or growing due to the bankfupt in the course of his trade or business, shall not be deemed goods within the meaning of this section (y). Where any part of the property of the bankrupt Disclaimer of consists of land of any tenure burdened with onerous perty"^ ^^° covenants, of shares or stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, may, subject to the conditions and within the time specified in the Act, disclaim the property (z). Such a disclaimer operates to deter- mine, as from the date of disclaimer, the rights, interests and liabihties of the bankrupt and his property in or in respect of the property disclaimed, and also discharges the trustee from all personal liabiUty in respect of the property disclaimed, as from the date when the property vested in him ; but, except so far as is necessary to attain these results, does not affect the rights or habilities of any other person (a). A trustee is not, as a rule, entitled Disclaimer of lease. (y) Scot. 44 ; see ante, pp. Cohen, 1905, 2 K. B. 704. 112—114. {«) Stat. 40 & 47 Vict. c. 52, (2) Stat. 46 & 47 Vict. c. 52, s. 55, sub-s. 2 ; see Be BasUtble, s. 55, sub-s. 1, amended by 53 & 1901, 2 K. B. 518. 54 Vict. c. 71, s. 13; see Re 282 OF CHOSES IN ACTION. Rescission of contract made with bankrupt. to disclaim a lease without the leave of the Court ; and the Court may impose such terms as the Court thinks just, as a condition of granting such leave (b). The Court may, on the apphcation of any person entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to the Court may seem equitable, and any damages payable under the order to the appUcant may be proved as a debt in the bankruptcy (c). Any person injured by the operation of a disclaimer may prove for his injury as a debt in the bankruptcy (d). Possession of property by trustee. Trustee may transfer bankrupt's stock, shares in ships, and shares — And deal with his copyholds The trustee shall, as soon as may be, take posses- sion of the deeds, books, and documents of the bankrupt, and all other parts of his property capable of manual delivery (e). For the purpose of acquiring or retaining possession of the property of the bankrupt, the trustee is in the same position as if he were a receiver of the property appointed by the High Court (/). And any treasurer, or other officer, and any banker, attorney or agent of the banlo-upt is required to pay or deliver to the trustee all money and securities of the banltrupt which he is not entitled to retain as against the bankrupt or trustee {g). Where any part of the property of the bankrupt consists of stock, shares in ships, shares, or any other property transferable in the books of any company, office, or person (h), the trustee may exercise the right to transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt (i). And the (b) Sect. 55, sub-s. 3 ; see rule (1890) 69, replacing rule (1886) 320. (c) Sect. 55, sub-s. 5. {d) Sect. 55, sub-s. 7. (e) Stat. 46 & 47 Vict. c. 52, 50, sub-s. 1. (/) Sect. 50, sub-s. 2. ((/) Sect. 50, sub-s. 6. (h) Ante, pp. 40-^4, 119. {i} Sect. 50, sub-s. 3. OF BANKRUPTCY. 283 trustee is empowered to deal with the bankrupt's without being copyholds without being admitted thereto {k). a mi e . Where a bankrupt is a beneficed clergyman, the trustee may apply for and obtain a sequestration of the profits of the benefice (Z). Where a bankrupt is an officer of the army or navy, or an officer or clerk or otherwise employed or engaged in the civil service of the Crown, the trustee shall receive for distribution amongst the creditors so much of the bankrupt's pay or salary as the Court, on the apphca- tion of the trustee, with the consent of the chief officer of the department under wliich the pay or salary is enjoyed, may direct {m). And where a bankrupt is in the receipt of a salary or income other than as aforesaid, or is entitled to any half pay, or pension (n), or to any compensation granted by the Treasury, the Court, on the apphcation of the trustee, shall from time to time make such order as it tliinks just for the payment of the salary, income, half pay, pension, or compensation, or of any part thereof, to the trustee to be apphed by him in such manner as the Court may direct (o). Sequestratioa of ecclesias- tical benefice. Appropria- tion of por- tion of pay or salary to creditors. The trustee, in the administration of the bank- Powers of rupt's property, is to have regard to any directions jg"| ^j^^ given by resolution of the creditors at any general property. meeting, or by the committee of inspection (p) ; (k) Sect. 50, sub-s. 4; see Williams, R. P. 475, 21st ed. (/) Such sequestration is, how- ever, subject to the right of the l>ishop of the diocese to appoint to the bankrupt the like stipend as he might have appointed to a curate in case the bankrupt had been non-resident, and to pay- ment of such stipend to the bank- rupt, and also to payment of any duly licensed curate's salary (not exceeding 50^.) for four months before the date of the receiving order ; sect. 52. See Re Lawrence, 1896, P. 244. (m) Sect. 53, sub-s. 1 («) Jie Saunders, 1895, 2 Q. B. 1 17, 424 ; Re Ward, 1897, 1 Q. B. 2()fi. (o) Sect. 53, sub-s. I ; see Re Shine, 1892, 1 Q. B. 522; Re Rogers, 1894, 1 Q. B. 425 ; also Ex parte Ilugfjins, 21 Ch. D. 85 ; Ex parte Beyiivell, 14 Q. B. D. 301 ; decided on stat. 32 & 33 Vict. c. 71, s. 90. (p) Ante, p. 279. 284 OF CHOSES IN ACTION. Powers exer- ciseable by trustee with permission of committee of inspection. Power to allow bank- rupt to manage pro- perty. and any directions so given by the creditors are to override any directions given by the committee, in case of conflict (g). Subject to these and the other provisions of the Act, the trustee is to use his own discretion in the management of the estate (r) ; and he is empowered (s) to sell the bankrupt's property (t), give receipts for any money received by him, prove and draw dividends in respect of any debt due to the bankrupt, exercise any powers, the capacity to exercise which is vested in him under the Act (u), and deal with any property to which the bankrupt is beneficially entitled as tenant in tail in the same manner as the bankrupt might have dealt with it (x). The trustee is also em- powered (y), with the permission of the committee of inspection to be obtained in each particular case, to carry on the bankrupt's business, bring or defend any action or other legal proceeding relating to the bankrupt's property, employ a solicitor or other agent to do any business sanctioned by the com- mittee, accept a sum of money payable at a future time as the consideration for a sale of any of the bankrupt's property, mortgage or pledge any part of the bankrupt's property to raise money to pay the debts, refer to arbitration or compromise any claim between the bankrupt and any person who may have incurred any liability to him (z), make . any compromise or arrangement in respect of any debts provable or claim against any person arising out of the property of the bankrupt, and divide amongst the creditors any property which cannot be readily or advantageously sold. And the trustee may, with the permission of the committee (q) Stat. 46 & 47 Vict. c. 52, s. 89, sub-s. 1. (r) Sect. 89, sub-s. 4. (s) Sect. 56. it) See ante, p. 280, n. (t). (u) Ante, p. 280. (x) See Williams, R. P. 289, 21st ed. (y) Sect. 57. (z) See Re Pilling, 1906, 2 K. B. 664. OF BANKRUPTCY. 285 of inspection, appoint the bankrupt" himself to super- intend the management of the property, or any part thereof, or to carry on his trade for the benefit of his creditors ; and may, with the same permission, make such allowance as he may think just to the Allowance to bankrupt out of the property for the support of ^^"^^"P*- himself and his family, or for his services, if engaged in winding-up the estate : but any such allowance may be reduced by the Court (a). The trustee may Application apply to the Court for directions in any particular matter (b) ; and so may the bankrupt, or any of the creditors, or any other person, if aggrieved by any act or decision of the trustee (c). A trustee in bankruptcy is not permitted to retain Money re- in his own hands any money which he may receive trustee in as the proceeds of the reahsation of the estate of bankruptcy. the bankrupt ; but is required to pay the same to the Bankruptcy Estates Account at the Bank of England, or into a local bank, if authorised by the Board of Trade, on the application of the com- mittee of inspection, to make his payments into and out of a local bank (d). And no trustee in a bank- Trustee not ruptcy or under any composition or scheme of private"^*^ arrangement shall pay any sums received by him account, as trustee into his private banking account (e). Every trustee in bankruptcy is required to keep Trustee's proper books of account (/), to be submitted with acc^unt^ all requisite vouchers to the committee of inspection, when required, and not less than once every three months (g). The trustee's accounts are required to Audit by be audited by the committee of inspection once at i,ispecSont °^ least every three months {h) ; and by the Board of and Board of Trade. (a) Sect. (54. (e) Sect. 75. (6) Sect. 89, sub-s. 3; rule (/) Sect. 80 ; rules (1886) 285, (1«86) 313. 286. (r) Sect. 90. (. 122. (I) R. S. C. 1883, Order XLVI. r. 2. replacing R. S. C. April, 1880, 320 OF CHOSES IN ACTION. Bank of England or dividends thereon, may, on filing in the central office of the Supreme Court an affidavit as to his interest, with a notice to restrain the transfer of or the receipt of the dividends upon the amount of stock in question, serve on the bank an office copy of the affidavit and a duplicate of the notice authenticated by the official seal (m) ; and such service shall have the same effect as the issue of a writ of distringas would formerly have had {n). The bank will then give notice to the person so serving them of any application for a transfer of the stock or the payment of the dividends thereon, and will refuse to permit any transfer to be made, or the dividends to be paid for eight days after the date of such appUcation (o). But the bank is not to refuse to permit the transfer to be made, or to withhold payment of the dividends, for a longer period, without the order of the Court or a Judge (p). An order restraining the transfer or payment of the dividends may be made in a summary way upon motion or petition of the person who has served the notice {q). A notice in lieu of distringas may be withdrawn by the person by whom or on whose behalf it was given, on a written request signed by him, or its operation may be made to cease by order to be obtained by any other person claiming to be interested in the stock or dividends (r). It is surprising that a course by which a cestui que trust of stock may be so effectually protected from any fraudulent transfer by his trustee should not be more frequently adopted. Stock may be Stock, being a cfiose in action, could not formerly charged with j^g^yg been sold under a fieri facias issued in execution judgment ' '' debts. (^^) R. S. C. 1883, Order XLVI. Ch. D. 549. r. 4, amended by R. S. C. 1888, (p) R. S. C. 1883, Order XLVI. No. 3. r. 10. (n) R. S. C. 1883, Order XLVI. {q) Stat. 5 Vict. c. 5, s. 4 ; Re r. 8 ; see note (k) above. Blalcsley's Trusts, 23 Ch. D. 549. (o) Re Blaksley's Trusts, 23 (») R. S. C. Order XLVI. r. Q, OF PERSONAL ANNUITIES, STOCKS AND SHARES. 321 of a judgment against the owner (s). And, in fact, in the Acts by which stocks were created, it was declared that they should not be taken in execu- tion (t). But under the Judgments Act, 1838 (u), any Divisional Court or a Judge (x), on the applica- tion of any judgment creditor, may order that any government stock of the debtor standing in his own name in his own right, or in the name of any person in trust for him, shall stand charged with the payment of the judgment debt and interest ; and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to, if such charge had been made in his favour by the debtor (y) ; but no proceedings shall be taken to have the benefit of such charge until after the expu'ation of six calendar months from the date of such order (z). And luider the Judgments Act, 1840 (a), a similar order may be made as to the interest of any judgment debtor, whether in posses- sion, remainder or reversion, and whether vested or contingent, as well in such stock as in the dividends or annual produce thereof, and also in any stock lodged in Court in which the debtor may be interested or the dividends thereon (6). And in order to prevent any judgment debtor from disposing of the (s) Dundas v. Dutens, 1 Ves. HaMings, 4 Kcay & J. 633, 638 ; jun. 198 ; 1 R. R. 112 ; ante, p. Crow v. Robinson, L. R. 3 C. P. 107, n. (p). 264, 267 ; Pickering v. Ilfracombe (t) Bank of England v. Lunn, Railway Company, L. R. 3 C. P. 15 Ves. 577. 235, 251 ; Re Leavesletj, 1891, 2 {u) Stat. 1 & 2 Vict. c. 110, Ch. 1 ; Stewart y. Rhodes, 1900, 1 s. 14. €h. 386. (x) R. S. C. 1883, Order [a) Stat. 3 & 4 Vict. c. 82, s. 1. XLVI. r. 1, replacing Order Sec Hvlkes v. Day, 10 Sim. 41. XLVI. r. 1, of Stat. 38 & 39 Vict. [b) See Warburlon v. Hill, c. 77, First Schedule. Kay, 470 ; Haly v. Barry, L. R. (V) See Savage v. Norton, 1908, 3 (Jh. 452, 456, 457 ; Bolland 1 Ch. 290. V. Young, 1904, 2 K. B. 824 ; (2) See Wall^ v. Jefferyes, 3 stats. 35 & 36 Vict. c. 44 ; 46 & Mac. & G. 372 ; Walls v. Porter, 47 Vict. c. 29 ; and Supreme 3 E. & B. 743 ; contra, Beavan v. Court Funds Rules, 1886, W. N. Earl of Oxford, 6 De Gex, M. & 9th Oct., 1886. G. 524, 525, 532 ; Scott v. Lord W.P.P. . 21 322 OF CHOSES IN ACTION, Charging orders. Transfer of bankrupt's stock. stock authorised to be charged, an order may be procured by the creditor, in the first instance ex parte, charging the stock and restraining the Bank of England from permitting a transfer of the stock until the order shall either be made absolute (that is, confirmed and continued) or discharged ; and no disposition of the judgment debtor in the meantime shall be vahd or effectual as against the creditor. And the order will be made absolute if the debtor do not, within a time mentioned in the order, show cause to the contrary (c). Such orders are known as charging orders nisi, and charging orders absolute. When the debtor is entitled to the dividends of stock standing in the names of trustees, the order obtained by the creditor charging such dividends will be binding on the trustees ; but the bank must still pay the dividends to the trustees as legal owners {d). As we have seen (e), a trustee in bank- ruptcy is empowered to transfer the bankrupt's stock to the same extent as the bankrupt himself might have transferred it. And stock appears to be a thing in action (/) so as to be excepted from the operation of the reputed ownership clauses of the bankruptcy law {g). Transmission of stock by wiU. The history of the law respecting the transmission of stock by will affords a curious instance of the enactments of the legislature having been virtually overruled by the decisions of the Court of Chancery. The Acts by which the funds were created provided that any person possessed of stock might devise the same by will in writing attested by two or more credible witnesses, but that such devisee should receive no (c) Stat. 1 & 2 Vict. c. 110, s. 15. (d) Churchill v. Bank of Eng- land, 11 M. & W. 323 ; Bristead V. Wilkins, 3 Hare, 235 ; South Western Loan and Discount Co. V. Robertsoti, 8 Q. B. D. 17 ; and see'^Taylor v. Turnbull, 4 H. &JN. 495. (e) Ante, p. 282. (/) Ante, pp. 42, 317. {g) Ante, pp. 253, 254, 281. OF PERSONAL ANNUITIES, STOCKS AND SHARES. ^'^'^ payment till so much of the will as related to the stock had been entered in the office at the bank ; and in default of such devise the stock should go to the executors or administrators {h). The Court of Chancery, however, held, that as stock had been declared by Parliament to be personal estate, it must, like all other personal estate, devolve, in the first instance, on the executor for payment of debts, even though it should have been specifically be- queathed (i), and that the executor, having it in his hands by virtue of his office of executor, was bound, after payment of debts, to dispose of it according to the will of his testator, even although such will were unattested {k). For, previously to the Wills Act of 1837 {I), a will of personal estate required no attestation. In effect, therefore, a person was enabled to bequeath his stock by a will unattested. All wills, however, are now required to be attested by two witnesses. And by an Act of 1845 the provisions of the old Acts, which had virtually been disregarded, were formally repealed ; and it is now declared that the interest of a stockholder dying in Transfer of stock shall be transferable by his executors or son's^stock?'^' administrators, notwithstanding any specific bequest thereof ; but the Bank shall not be required to allow of such transfer, or of the receipt of any dividend on the stock, until the probate of the will or the letters of administration shall have been left at the Bank for registration. And the Bank may require all the executors who have proved the will to concur in the transfer (m). And the registry of specific bequests of stock is no longer required. (h) Stat. 1 Geo. I. stat. 2, c. 19, Ves. 440 ; Franklin v. Bank of s. 12, and subsequent Acts. England, 1 Russ. 575, 589. {/) Bank of England V. Mofjait, (l) Stat. 7 Will. IV. & 1 Vict. 3 Bro. C. C. 260 ; Bank of Eng- c. 26 ; post, part IlL, ch. III. land V. Parsons, 5 Ves. 665 ; (m) Stat. 33 & 34 Vict. c. 71, Bank of England Y. Lunn, 15 Ves. ss. 17, 23, replacing 8 & 9 Vict. 569. ■ c. 97, s. 1. (k) Ripley v. Waterivorth, 7 21—2 324 OF CHOSES IN ACTION. India and Colonial Government Stock. Municipal Corporation Stock. Contract notes. Notice in lieu of dis- tringas. Other personal property resembling generally stock in the British government funds in its legal incidents is India stock, and the stocks of the various British colonial governments inscribed in the books of the Bank of England or some other bank (n). Each of these stocks represents a certain amount of funded debt of the government which has issued the stock, gives the right to half-yearly or quarterly payments by way of interest at a fixed rate, and is redeemable at a given time : but of course the security is not the same as in the case of the British funds, being that of the Indian or colonial governments and their revenues respectively, and not that of the Home Government and its resources. The stocks inscribed in bank books of various municipal corporations, or other public bodies, such as the Corporation of Manchester or the London County Council, possess like incidents ; although these last are often transferable by deed, and not, like government stock, by mere entry of the transfer in the bank books (o). Such stocks also represent funded debt of the public bodies issuing them, and are generally secured upon the rates leviable by or other corporate or public revenues of such public bodies. Contract notes are required in the cases above specified on the sale or purchase of all of the stocks mentioned in this paragraph {p). The provisions above stated as to the transfer of British government stock by executors or administrators (q) and the receipt of dividends thereon (r) apply to all stock of any company or corporation, funds or annuities transferable in the books of the Banks of England or Ireland (s). And notice in lieu of distringas {t) may be served in respect of any stock (n) See stat. 40 & 41 Vict. c. 69. (o) See the Stock Exchange Official Intelligence. (p) Ante, p. 318 and n. (A). (q) Ante, p. 323. (r) Ante, p. 316 and n. (x). (s) Stats. 33 & 34 Vict. c. 71, s. 73 ; 52 Vict. c. 6, s. 4, sub-s. 6. [t) Ante, pp. 319, 320. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 325 standing in the books of the Bank of England or any other piibHc company, whether incorporated or not (u). The jurisdiction to make charging charging orders is, however, hmited to any government °^'^^'^^- stock, funds or annuities, or any stock or shares of or in any pubHc company in England (x). As we Transfer of have seen (y), a trustee in bankruptcy is empowered ^^^"k'^"^*^ '^ to transfer any stock or other property of the bankrupt* transferable in the books of any com- pany, office or person to the same extent as the bankrupt might have transferred the same. We will now proceed to examine the nature of Shares. shares in joint stock companies. A share in a trading company, regarded as a source of emolu- ment, is a mere right to receive a certain share of the profits made by the company ; and it is in some cases accompanied by the liability to make a certain contribution towards payment of the company's debts (z). Joint stock companies were formerly of two kinds, those which were incorporate, or made into corporations, and those which were not so. Corporations are legal personages, always known Corporations by the same name, and preserving their identity through a perpetual succession of natural persons. They are either corporations sole, composed only of one person, such as a bishop, a parson, or the chamber- lain of London ; or corporations aggregate, composed of many persons acting on all solemn occasions by the medium of their common seal {a) ; and it is of such corporations that we are now about to speak. (n) R. S. C. 1883, Order XLVI. v. Morgan, .37 Ch. D. 340, 3r)2 ; r. .'5. Bmland.s Trustee v. HteeL VM)\. (r) Stat. 1 & 2 Vict. c. 110, 1 Ch. 280; liandt Gold MiniiHi s. 14 ; Brercton v. Edirnrds, 21 C'o. v. New lialkin Eersltliuy, g. R. I). 488, 493, 407. Ltd., Ifl03, 1 K. K 401 ; 1!»04, (//) Ante, ]). 282. A. C. 10.1. (z) See ante, ]>]>. 41, 42; {a) See Bac. Abr., tit. Corpora- Williams, R. P. 0, .30, 21st ed., tions; 1 Black. Comm. ch. xviii. ; and cases there cited ; Nanvey Williams, R. P. 302, 21st ed. sole and aggregate. 326 OF CHOSES IN ACTION. Such corporations may exist either by force of the common law, or of some statute. In the former case they must have been created by royal letters- patent, or they must be corporations by prescription (as the Corporation of London is), that is, they must have existed as corporations from time immemorial, when the royal assent to their incorporation is assumed (b). The individual members of a common law corporation, and their private property, are not liable in respect of any debts incurred by the corporation (c). But in the case of a corporation existing by force of statute, the members will be subject to any liability, which may have been imposed on them by the terms of the statute, to contribute to the payment of the corporation's debts. We have already noticed the early incorpora- tion of certain trading companies by royal charter (d). Towards the end of the seventeenth and early in the eighteenth century a few great companies were incorporated pursuant to Act of Parliament. The principle adopted in these cases was that a joint stock of trading capital of a certain amount should be raised by subscription, and that the shares of the members of the company in sueh joint stock of capital should be liable to the company's debts, but that the members themselves should not be liable for such debts beyond the extent of their shares in the capital stock so raised (e). As modern commerce increased, other companies obtained special Acts for their incorporation, sometimes imposing no Uability on the members for the company's debts, sometimes imposing on them a liability for such debts limited to the extent of their shares in the amount of (b) 1 Black. Comm. 472—473. 35, 49, as to the Bank of Eng- (c) 6 Vin. Abr. 299 (Corpora- land ; 9 & 10 Will. III. c. 44, s. tion, pi. 5 — 8). 86, as to the East India Co. ; G (d) Ante, p. 41 . Geo. I. c. 18, s. 7, as to the Royal (e) See Stats. 5 & 6 W. & M. Exchange Assurance and London e. 20, ss. 20 — 26, amended by 8 & Assurance Corporation. 9 Will. III. c. 20, ss. 20—26, 30, OF PERSONAL ANNUITIES, STOCKS AND SHARES. 327 capital to be raised (/). Besides such incorporated companies, however, there also grew up a number of joint stock companies, which had not obtained the sanction of a royal charter or a statute, and there- fore had no corporate existence (g). Such associa- tions were in law nothing more than private partnerships on an extended scale ; and every member was liable to the whole extent of his resources, for all the company's debts (h). In Queen Victoria's reign, as we shall see, provision was made for the incorporation of all pubHc joint stock companies by registration in accordance with certain statutory requirements {i) ; but such com- panies as are incorporated by letters-patent or special Act of Parliament still enjoy peculiar privileges. These companies, therefore, first require notice. The nature and incidents of shares in the joint Companies stock of companies incorporated by letters-patent incorporated 5 1, 1 1 . T bv charter or or Act of Parliament have generally been determmed Act. by their respective charters or Acts of incorporation. And in the great majority of cases, and in all the modern charters and Acts of incorporation, the shares are declared to be personal estate, and transmissible as such (k). In a few of the older companies, of which the New River Company is an instance (I), the shares are real estate in the nature of incorporeal hereditaments. Since the year 1845, however, the incidents of all joint stock companies incorporated by special Act of Parliament have generally been the same. For in that year an Act was passed, called (/) Liiidley on Companies, 4, & K. 61, 76 ; Ex parte Marston, 5th ed. Mont. & Ch. 576 ; PUchJord v. ((/) Lindley on Companies, 2, Davis, 5 M. & W. 2. 3, 5th cd. (/) Post, p. 331 and n. (o). (h) .Sec Botirne v. Freeth, 9 (k) Sec ante, p. 42. B. & C. 632 ; 33 11. R. 275 ; Fox (I) J)n/butter v. Bartholomew, V. Clifton, 6 Bing. 776 ; 31 R. R. 2 P. VVuis. 127. 536 ; Walburn v. Ingilby, 1 My. 328 OF CHOSES IN ACTION. the Companies Clauses Act, " for consolidating in one Act certain provisions usually inserted in Acts with respect to the constitution of companies incor- porated for carrying on undertakings of a public nature " (m) ; and it was provided {n) that the provisions of this general Act should apply to every joint stock company which should thereafter be incorporated by special Act of Parhament, save so far as such provisions should be varied or excepted by the special Act. A uniformity was thus given to the constitution of such companies, and the length of the Acts of Parliament required to estabhsh them was greatly diminished. Since provision has been made by statute for the incorporation of joint stock trading companies by registration (o), the companies incorporated by special Act of Parlia- ment have generally been those formed with the object of constructing and carrying on works of public utility, such as railways, tramways, gas or waterworks, docks or canals ; especially companies requiring powers to take lands compulsorily for the purposes of their undertakings. Such powers must necessarily be given by the authority of a special Act ; but when this authority is obtained, the procedure in the matter of taldng the lands is regu- lated by another general Act of the year 1845, called the Lands Clauses Act (p). Companies Clauses Act, 1845. Share certificates. Under the Companies Clauses Act, the capital of the company is divided into shares (g), which are personal estate and transmissible as such (r). A register of shareholders is to be kept (s). Certificates (m) Stat. 8 & 9 Vict. c. 16 ; extended by 26 & 27 Vict. c. 118; amended by 32 & 33 Vict. c. 48. (w) Stat. 8 & 9 Vict. c. 16, ss. 1, 2. (o) Ante, p. 327, and pp. 331, 332, post. (p) Stat. 8 & 9 Vict. c. 18, ex- tended by 23 & 24 Vict. c. 106. (q) Stat. 8 & 9 Vict. c. 16, s. 6. (r) Sect. 7. is) Sect. 9. OF PEESONAL ANNUITIES, STOCKS AND SHARES. 329 of their shares are to be issued to the shareholders (t), and are 'pri7nd facie evidence of their title (u). Shares are transferable by deed duly stamped, in Transfer of which the consideration shall be truly stated (x) ; but the transfer is not complete until the deed, being duly executed and otherwise in order, has been dehvered to the secretary of the company for registration (y). And no shareholder is entitled to transfer any share not fully paid up, until he shall have paid all calls for the time being due on every share held by him (2). The amount of capital subscribed for by each shareholder is payable on calls made by the company (a). In default of pay- ment of any call, the shareholder may be sued by the company for the amount of the call (6), and his shares may be forfeited (c). The remedies of creditors of the company against the shareholders are confhied to levying execution against them, by order of the Court, to the extent of their shares in the capital of the company not then paid up, and may be exercised only in case there cannot be found sufficient property or effects of the company whereon to levy execution (d). Fully paid up shares may be consohdated into stock (e), transferable in the same manner as shares (/). Great inconvenience was experienced in the case Incon- of joint stock companies which had not obtained Qf"','^i]^eoi.. porated joint (<) Sect. 11. (a) Sects. 21—24. stock com- (u) Sect. 12. (h) Sects. 2.5—27. panics. (x) Sect. 14 ; see Powell v. (c) Stat. 8 & 9 Vict. c. 16, London db Provincial Ban L; 1893, ss. 29 — 35. 2 Ch. 55.5. As to the stamp duty (d) Sect. 36 ; Hitchins v. Kil- payabln, see ante, p. 75, n. (c). kenny, ■) Sec cmte, p. 24 ; Goodivin V. Robarts, 1 App. Cas. 476 ; Colonial Bank v. Williams, 15 App. Cas. 267 ; London Joint Stock Bank v. Simmons, 1892, A. C. 201 ; Venables v. Baring Bros., 1893, 3 Ch. 527. (s) Gorgier v. Mieville, 3 B. & ^Contract G. 45 ; 27 R. R. 290 (Prussian notes on bonds) ; Att.-Gen. v. Boiiivens, 4 sale of and M. & W. 171, 180, 190 (Russian, stamps on Danish and Dutch bonds) ; marketable Winans v. Att.-Gen., 1910, A. C. securities. 27 ; see Picker v. London and County Bank, 18 Q. B. D. 515. (t) Goodivin v. Robarts, 1 App. Cas. 476 ; see also Easton v. Lon- don Joint Stock Bank, 34 Ch. D. 95 ; reversed 13 App. Cas. 333 ; explained 1892, A. C. 201. (m) Rumball v. Metropolitan Bank, 2 Q. B. D. 194, 196 ; Edel- stcin V. ScJmler, 1902, 2 K. B. 144. {x) Beclmanaland Exploration Co. V. London Trading Bank, 1898, 2 Q. B. 658. We have seen that the above-mentioned re- quirements of the Finance Act, 1910, as to *contract notes on sales extend to any marketable security as thereby defined ; ante, p. 318, and n. [h). As to the stamp duty on marketable securities, see stat. 54 & 55 Vict, c. 39, First Schedule, amended by 61 & 62 Vict. c. 46, s. 7 (3) ; 62 & 63 Vict. c. 9, s. 4; 10 Edw. VII. c. 8, s. 76; 1 & 2 Geo. V. 0. 48, s. 13. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 345 property, or both, in favour of specified persons or of the bearer with the repayment of money borrowed by them under their statutory powers to increase their capital by borrowing money (y). The question whether debentures give a charge on the property of the company depends upon the expressions used and intention declared therein (z). Debentures Floating frequently create what is called a floating security, ^®^"" ^^ giving the debenture holders an equitable charge on the assets of the company for the time being (a), but permitting of the free disposal of the company's property by the directors in the ordinary way of business (b) until the debenture holders take pro- ceedings to realise their security by the appointment of a receiver to act on their behalf (c), or a winding-up of the company is commenced (d) ; in either of (y) See British Steam Naviga- tion Company v. Commissioners of Inland Revenue, 7 Q. B. D. 165, 168, 172 ; Edmonds v. Blninn Furnaces Co., 36 Ch. D. 215 ; Ler>y v. Ahercorris Slate and Slab Co., 37 Ch. D. 260 ; Re Herring, 1908, 2 Ch. 493. (z) See Gardner v. London, Chatham and Dover By. Co., L. R. 2 Ch. 201 ; Be Panama, 9 ; Belts v. Menzies, 10 11. L. C. 117 ; Harivood v. Great Northern Ry. Co., 2 B. & S. 194 ; 11 II. L. C. 654 ; Young v. Fer- nic, 4 Giff. 577. 352 OF CHOSES IN ACTION. that is sufficient to avoid the patent (a). The realm in this statute has been determined to mean the United Kingdom of Great Britain and Ireland ; so that when separate letters-patent were granted for England and Scotland, if any invention had been pubhcly known or practised in England, a patent for Scotland was void (6). But, under the Patents Act of 1907, an invention is not to be deemed to have been anticipated by reason only of its publication in a specification more than fifty years old, or in a provisional specification of any date not followed by a complete specification ; and prior pubhcation does not invahdate a patent if the patentee proves to the satisfaction of the Court that the pubhcation was without his knowledge and consent, and that the matter pubhshed was derived or obtained from him, and, if he learnt of the pubhcation before his apphcation for the patent, that he apphed for and obtained protec- tion for his invention "with all reasonable dihgence (c). Exhibition of And the exhibition of an invention at certain an nivention. industrial and international exhibitions does not prejudice the right of the inventor to apply for and obtain provisional protection and a patent in respect of the invention, or the vahdity of any patent granted on the application ; provided that the exhibitor, before exhibiting the invention, gives the Comp- troller the prescribed notice of his intention to do so, and that the apphcation for a patent is made before or within six months from the date of the opening of the exhibition (d). True and first Thirdly, according to the Statute of Monopohes (e), inventor, (a) Plimpton v. Spiller, 6 Ch. & Fin. 214 ; see Re Robinson'' s D. 412 ; Patterson v. Gaslight and Patent, 5 Moo. P. C. 65 ; Rolls v. Coke Co., 3 App. Cas. 239, 244, Isaacs, 19 Ch. D. 268. 245; United Telephone Co. v. (c) Stat, 7 Edw, VII. c, 29, Harrison tfc Co., 21 Ch. D. 720, s. 41. 730, 731 ; Harris v, Rothwdl, 35 [d) Stat, 7 Edw, VII, c, 29, Ch. D. 416. s. 45. (6) Brown v. Annandale, 8 CI. (e) Ante, p, 347. 353 OF PATENTS AND COPYRIGHTS. a patent must be granted " to the true and first inventor and inventors." And under the Patents Act of 1907 an appUcation for a patent may- be made by any person who claims to be the true and first inventor, whether he is a British subject or not, and whether alone or jointly with any other person ; and, in the case of a joint appUcation, the patent may be granted to the applicants jointly (/). If therefore the original inventor should sell his secret to another person, such person cannot obtain letters-patent for the invention in his own name alone ; but the original inventor must obtain the letters-patent, and then assign them to the other ; or else the patent must be granted to them jointly. If two persons should both make the same discovery, he who first pubUshes it by obtaining a patent for it, will be the true and first inventor within the meaning of the statute, although he may not actually have been the first to make the discovery (g). But a person cannot obtain a patent for an invention which has been communicated to him by another within the realm (h). If, however, a person should Foreign ,. . » . ,. ■ ^ T . inventions. be in possession of an invention communicated to him from abroad, such person, if he be the first introducer of the invention into this country, is regarded by the law as the true and first inventor thereof within the meaning of the statute of James (i) ; and it is no objection that the patent is taken out in trust merely for the foreign inventor (k). Before the year 1884 letters-patent (J) Stat. 7 Edw. VII. c. 29, sec also Marsden v. Saville, d-c. ss. 1, 12. Co., 3 Ex. D. 203, 205—207. {g) Boulton v. Bull, 2 H. Bl. (k) Beard v. Egerton, 3 C. B. 463, 487 ; 3 R. R. 439. 97, 129. Under the Patent.s Act (h) Hill V. Thompson, 8 Taunt. of 1852 (15 & 10 Vict. c. 83), s. 25, 375, 395 ; 20 R. R. 488 ; Mars- letters patent in the United King- dew V. Saville, ) Sect. 21, sub-s. fi. 360 OF CHOSES IN ACTION. Damages after amend- ment. pending, this provision for amendment does not apply (c), but the Court may allow the patentee to amend his specification by way of disclaimer in such manner, and subject to such terms as to costs, advertisement and otherwise as the Court may think fit, but the amendment must not substantially alter the invention first claimed (d). Where an amendment of a specification by way of disclaimer, correction or explanation, has been allowed, no damages are to be given in any action in respect of the use of the invention before the disclaimer, correction, or explanation, unless the patentee establishes to the satisfaction of the Court that his original claim was framed in good faith, and with reasonable skill and knowledge (e). Every amend- ment of a specification is required to be advertised in the prescribed manner (/). Vesting in more than twelve persons. A condition formerly inserted in letters-patent rendered them void, in case the letters-patent, or the hberty and privileges thereby granted, should become vested in or in trust for more than the number of twelve persons, or their representatives, at any one time, as partners, dividing or entitled to divide the benefit or profit obtained by reason thereof. But this restriction was removed by the Patent Act of 1852 (gr). And under the Patents Act of 1907 (h), two or more persons may make a joint application for a patent, and a patent may be granted to them jointly. For the purpose of the VII. 29, (c) Stat. 7 Edw. s. 21, sub-s. 8. (d) Sect. 22; Re Hall, 21 Q. B. D. 137 ; Re Oioeri's Patent, 1899, 1 Ch. 157 ; Woolje v. Auto- matk, &c. Co., Ld., 1903, 1 Ch. 18 ; J. B. Brooks db Co. v. LyceWs, d-c. Co., 1904, 1 Ch. 512 ; Re Klaber and Steinberg's Patent, 1908. 1 Ch, 847. As to the practice under this section, see Re Alsop's Patent, 1906, 1 Ch. 85. (e) Sect. 23. See Gillette Safely Razor Co. v. Luna Safety Razor Co., 1910, 2 Ch. 373. (/) Sect. 21, sub-s. 7. ((/) Stat. 15 & 16 Vict. c. 83, s. 36, repealed by 46 & 47 Vict, c. 57, s. 113. (h) Stat. 7 Edw. VII. c. 29, ss. 1, 12 ; see National Society, <&c. V. Gibbs, 1900, 2 Ch. 280. OF PATENTS AND COPYRIGHTS. 361 devolution of the legal estate in the patent they are treated as joint tenants ; but, subject to any con- tract to the contrary, each can use the invention for his own profit without accounting to the others, but cannot grant a licence without their consent, and on the death of one the beneficial interest devolves on his personal representatives (i). In letters-patent a clause is usually contained Infringement forbidding all persons to use the invention *^ ^^ ^" ' within the realm (k), without the consent, licence or agreement of the inventor, his executors, adminis- trators or assigns, in writing, under his or their hands and seals, first had and obtained in that behalf (l). The duty so imposed is correlative to the right granted to the patentee ; and any violation of this duty constitutes an infringement of the patent (m). The granting of hcences to use a Licence to patent is one of the most profitable ways of turning "''^ ^^'^ ^"^ " it to account. The grant of an exclusive hcence does not, however, enable the hcensee to sue in his own name for infringement of the patent (n). certain circumstances, the person for the time being entitled to the benefit of a patent may be compelled to grant licences for the use of the invention. For under the Patents Act of 1907 (o), if, on a petition presented by any person interested to the Board of Trade and referred by the Board to the Court, it is proved to the satisfaction of the Court that the reasonable requirements of the Jj^ Compulsory licences. (i) Stat. 7 Edw. VII. c. 29. .s. 37. {k) As to contracts made in the United Kingdom and completed abroad, see Badincfte Anil in. .). (in) See aiilc, p. 43, and n. (/); Brilish Motor Syndicale v Taylor 1901, 1 Ch. 122. See Stat. 7 Edw. \'1I. e. 29. s. 48, as to the excep- tion in favour of foreign vessels using i)atented inventions in IJriti.sli waters. («) Heap V. Hartley, 42 Ch. D. 4()I. There is an implied cove- nant by the licensor to jjay the renewal fees ; Vummiiujs v. Stewart, 191.3, 1 I. R. 95. (o) Stat. 7 Edw. VII. c. 29, s. 24. 362 OF CHOSES IN ACTION. Prohibition of restrictive conditions. public with reference to a patented invention have not been satisfied, the patentee may be ordered by the Court to grant hcences on such terms as the Court may think just, or if the Court is of opinion that the reasonable requirements of the pubhc will not be satisfied by the grant of hcences (p), the patent may be revoked by order of the Court ; but no order of revocation can be made before the expiration of three years from the date of the patent, or if the patentee gives satisfactory reasons for his default (q). Formerly, upon the sale of patented articles or a hcence to use a patented process, conditions were sometimes inserted extending the rights of the patentee and restricting the liberty of the purchaser or licensee in respect of articles outside the patent (r). But it is now provided (s) that, upon such a sale or hcence, it is not lawful to insert a condition the effect of which will be to prohibit or restrict the purchaser or hcensee from using any articles, whether patented or not, or any patented process, supplied or owned by any person other than the seller or licensor ; or to require the purchaser or licensee to acquire from the seller or licensor or his nominees any articles not protected by the patent ; and any such condition is null and void as being in restraint of trade and contrary to pubhc policy. But this pro- vision does not apply if, at the time of the contract, the purchaser or hcensee had the option of purchasing the article or obtaining the hcence on reasonable {])) As to when the reasonable requirements of the pubhc will not be deemed to have been satis- fied, see Stat. 7 Edw. VII. c. 29, s. 24, sub-s. 5. iq) The order of the Court directing the grant of a licence operates as the grant of a licence by deed ; sect. 24, sub-s. 6. (»•) Such as, on the sale of incandescent mantles, a con- dition to obtain accessory parts from the vendor. (s) Stat. 7 Edw. VII. c. 29, 3. 38, sub-s. 1. The insertion of such a condition affords a defence to an action for infringe- ment of the patent ; sect. 38, sub-s. 4. OF PATENTS AND COPYRIGHTS. 363 terms without such conditions ; or if the contract entitles him to determine the condition on three months' notice and on making such payment as may be fixed by an arbitrator appointed by the Board of Trade (/). And, after the lapse of a patent, contracts relating to a licence to use the patented article or process may be determined on three months' notice, and, in the case of contracts made before August 28th, 1907, on payment of compensa- tion, to be fixed, in default of agreement, by an arbitrator appointed by the Board of Trade {u). Letters-patent and the privileges thereby granted Assignment p 1 . 1 1 J. , ii of letters- are ireely assignable irom one person to another, patent. and the assignee by such assignment is placed in the same position as his assignor previously stood. The assignee may consequently bring in his own name the same actions both at law and in equity against those who have infringed the patent as the patentee himself might have done {x). The privileges granted by letters-patent are, there- fore, an instance of an incorporeal kind of personal property, different in its nature from those choses in action, which formerly were not assignable at law {y). It has been held that a deed is necessary for the vahd legal assignment of letters-patent {z) ; but a vahd As to the equitable assignment of a patent may be made a deed, without deed ; and such an assignment may be (0 Stat. 7 Edw. VII. c. 29, Ch. 104, 110, 113. A licence is s. 38, suV)-s. 1, proviso. also usvially granted by deed ; (m) Sect. 38, sub-s. 2. But ibid, at p. 113; but where the the j)atent(!0 can impose restric- licensee takes the benefit of a tions on the use of the patented hcence not under seal, he cannot article itself ; see Badiiche refuse to pay the royalt\' or other Anilin, rf-r., Fahrik v. Islcr, 19U(), consideration on the ground that 1 Ch. G05 ; affirmed, 190(i, 2 Ch. it is invalid ; Chanter v. Dew- US. hur.sl. 12 M. & W. 823 ; Crossley {x) Edmunds on Patents, 2nd v. Di.ron, 10 H. L. C. 293 ; Post ed., pp. 360 sq. ; Walton v. Card Automatic Supply Co. v. Lavaler, 8 C. B. N. S. 102. Samuel, 6 R. P. 0. 560, 562 ; (y) Ante, pp. 29, 30, 43. and see Coppin v. Lloyd, 15 (=) Be Casey's Patents, 1892, 1 R. P. C. 373. 364 OF CHOSES IN ACTION. entered on the register (a). A patentee may assign his patent for any place in or part of the United Kingdom or Isle of Man, as effectually as if the patent were originally granted to extend to that place or part only (b). All assignments of letters- patent are required, by the Patents Act of 1907, to be registered (c). Register of patents. Registered proprietor of patent. Under the Patents Act of 1907, there is kept at the Patent Oflfice a book called the Register of Patents, wherein must be entered the names and addresses of grantees of patents, notifications of assignments and of transmissions of patents, of hcences under patents, and of amendments, extensions, and revocations of patents, and such other matters affecting the vahdity or proprietorship of patents as may from time to time be prescribed (d) ; the register of patents is prima facie evidence of any matters by the Act directed or authorised to be inserted therein (e) ; and copies of deeds, hcences, and any other documents affecting the proprietor- ship in any letters-patent, or in any hcence there- under, must be supplied to the Comptroller in the prescribed manner for filing in the Patent Office (/). Where a person becomes entitled by assignment, transmission or other operation of law to a patent, the Comptroller must on request, and on proof of title to his satisfaction, register him as proprietor of the patent (g). No notice of trust, expressed, imphed or constructive, can be entered on the register (//), but the Comptroller must enter notice of the interests of persons becoming entitled as (a) Re Casei/s Patents, 1892, 1 Ch. 104. (6) Stat. 7 Edw. VII. c. 29, s. 14, sub-s. 1. (c) Sect. 28. {,d) Sect. 28, sub-s. 1. (e) Sect. 28, sub-s. 3. (/) Sect. 28, sub-s. 4. See Patents Rules, 1908, rr. 82—94. (g) Sect. 71, sub-s. 1. [h] Sect. G6. OF PATENTS AND COPYRIGHTS. 365 mortgagees, licensees, or otherwise {i). The person registered as the proprietor of a patent, has power, subject to the provisions of the Act and to any rights appearing from the register to be vested in any other person, absolutely to assign, grant hcences as to, or otherwise deal with the same, and to give effectual receipts for any consideration for such assignment, Kcence or deahng ; but any equities in respect of the patent may be enforced in hke manner as in respect of any other personal pro- perty (k) ; and an assignee or hcensee of a patent, who has notice of a prior unregistered assignment, does not obtain priority of interest by priority of registration (l). The register of patents is open to the inspection of the pubhc ; and certified copies of any entry in such register may be obtained (m). Special provision is made in the Patents Act of Improve- 1907 (n) with regard to the assignment to the instruments Secretary of State for War or the Admiralty, on or munitions behalf of the Crown, of the benefit of any improve- ment in instruments or munitions of war and of any patent for the same ; and for keeping secret the particulars of any such invention, if the Secretary of State or the Admiralty should certify that secrecy is desirable in the interest of the pubhc service. The same Act provides (o) that, if any arrange- international ment shall be made with the government of any [^\°entions.° foreign state for mutual protection of inventions, then any person, who has applied for protection for any invention in any such state, shall be entitled (i) Stat. 7 K(i\v. \ll. e. 20, (w) Sect. U7. See Patents s. 71, subs. 2. Rules, 1908, r. 94. (k) Sect. 71, sub-s. ;}. (n) Sect. 30. (I) New Ixion, dr. Co. v. (o) Sect. 91. Spilsbury, 1898, 2 Ch. 484. 366 OF CHOSES IN ACTION, Colonies and India. to a patent for his invention under the Act, in priority to other appHcants. This enactment appHes only in the case of foreign states to which it is made applicable by order in council (p). The Crown may also, by order in council, apply the provisions of this enactment to any British possession {q), the legislature of which has made satisfactory provision for the protection of inventions patented in this country (r). Infringement of patent. Damages. Account of profits. The remedy of a patentee for an infringement of his patent is to bring an action against the wrong- doer, claiming an injunction to restrain him from further infringement, and damages (s). Such actions are generally (but not necessarily) commenced in the Chancery Division (t) . If the patentee establishes his claim, he may elect whether he will have a decree for an inquiry as to the damage which he has sustained and payment of the amount so assessed, or a decree for an account and payment of the profits made out of the infringement of his patent (w). On the other hand, not only may the fact of in- fringement be denied, as a defence to such an action, but the vahdity of the patent may be impugned as (p) Orders in Council under the Act take effect as if contained in the Act ; sect. 88. (<7) Stat. 7 Edw. VII. c. 29, s. 91, sub-s. 4. [r) Sect. 91, sub-ss. 5, 93. For international and colonial arrangements made under sect. 91 of the Act of 1907, or the corresponding sections (sects. 103, 104) of the Act of 1883, see Statutory Rules and Ordei's in force 31st Dec, 1903, and sub- sequent annual volumes, tit. Patent. (s) See Rules of the Supreme Court, 1883, Appendix A., Part III., sect. 4 ; Appendix C, sect. 6, No. 6. But a defendant who proves that at the date of the infringement he was not aware, nor had reasonable means of making himself aware of the existence of the patent, is not liable in damages, though he is liable to an injunction. The marking of an article as patented is not notice of the patent unless the year and number of the patent are given as well ; sect. 33. (f) See antp, pp. 159, 160. (u) Neilson v. Belts, L. R. 5 H. L. 1, 22 ; De Vitre v. Belts, L. R. 6 H. L. 319. As to assess- ment of damages, see Meters, Ld. V. Metropolitan Gas Meters, 28 R. P. C, 1.57 ; }Yatson Laidlaw cfc Co. V. Pott, 30 R. P. C. 285. OF PATENTS AND COPYRIGHTS. 367 well (x). Actions for the infringement of a patent are now subject to the special regulations contained in the Patents Act of 1907 (y). By the same Act, Remedy in where any person claiming to be the patentee of an groundless invention, bv circulars, advertisements or otherwise, threats of 1 -1 11 1 l^gai pro- threatens any other person with any legal proceed- ceedings. ings or habihty in respect of any alleged infringe- ment of the patent, any person aggrieved thereby may bring an action against him, and may obtain an injunction against the continuance of such threats, and may recover such damage (if any) as he has sustained thereby, if the alleged infringement to which the threats related was not in fact an infringe- ment of any legal rights of the person making such threats : but these provisions are not to apply if the person making such threats with due diligence commences and prosecutes an action for infringe- ment of his patent (z). Revocation of a patent may be obtained under Revocation the Patents Act of 1907 (a), on petition presented ^^ Patent. to the Court (6) by (1) the Attorney-General or (x) See Edmunds on Patents, 387, 389—392, 2nd ed. A defen- dant who could petition for revo- cation (see below), can apply for revocation by counterclaim ; sect. 32. (y) Stat. 7 Edw. VII. c. 29, s.s. 31, 34, 35 ; as to proceedings in Scotland, Ireland, and the Isle of Man, see sects. 94 — 9(). (z) Sect 36 ; Skinner d: Co. v. Sheio db Co., 1893, 1 Ch. 413; MetropolUan Cl(ts Meters v. British, d-c. Co. 1913, 1 Ch. 1.".0. (a) Sect. 2iS ; where a patent is revoked on the ground of fraud, a patent bearing the date of the revoked patent may be granted to the true inventor ; sect. 15, sub-s. 2. Where fraud is alleged as the ground of revocation, the cir- cumstances must show moral turpitude ; Re Avery's Patent, 36 Ch. D. 307; Be Ralston' s Patent, 100 L. T. 386. (h) That is, in England, the High CJourt of Justice ; sect. 92 ; as to Scotland and Ireland, see sects. 94, 95. In the case where an application for revocation of a patent is made by a person who would have been entitled to oppose the grant of the patent, jurisdiction to order revocation on one or more of the grounds on which the grant might have been opposed is vested in the Comp- troller, subject to appeal to the Court ; sect. 26 ; in general, the decision of the Court on appeal from (he Comptroller is final, but not i 1 this case ; .see sect. 92, sub-s. 2. 368 OF CHOSES IN ACTION. any person authorised by him, or (2) any person alleging (i.) that the patent was obtained in fraud of his rights, or of the rights of his predecessor in title ; or (ii.) that he, or any person under or through whom he claims, was the true inventor of any invention included in the claim of the patentee ; or (iii.) that he, or his predecessor in title to any trade, business, or manufacture, had pubhcly manufactured, used, or sold, within this realm, before the date of the patent, anything claimed by the patentee as his invention. Any ground which before 1884 would have justified the repeal of the patent by scire facias — that is, any ground showing that the grant was improper — is a ground for revocation, and is also available by way of defence to an action for infringement (c) ; and a patent may also be revoked in the circum- stances above mentioned in connection with com- pulsory Hcences {d). And jurisdiction to order revocation is also conferred on the Comptroller, subject to appeal to the Court, where four years have elapsed since the date of the patent and the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom. The order may be either for revocation forthwith, or after a reasonable interval unless in the meantime the ground of complaint has been removed (e). § 2. Of Copyright. Copyright. Closely connected with the subject of patents is that of copyright, or the exclusive right of multi- (c) Stat. 7 Edw. VII. c. 29, cumstances under which revoca- s. 25, sub-s. 2 ; such, for instance, tion will be ordered, see Re as disagreement between the Hafschek's Patents, 1909, 2 Ch. provisional and complete speci- 68 ; Re Bremer's Patent, 1909, 2 fication ; Vickers d- Co. v. Siddell, Ch. 217 ; Re Fiat Motors, Ld., 15 App. Cas. 496, 499; Nitttall 1911, ICh. 66; Re Green's Appli- Y. Hargreaves, lSd2, 1 Ch. 23. cation, 1911, 1 Ch. 754; Re (d) Seep. 361, ante. Taylor's Patent, 1912, 1 Ch. 635. (e) Sect. 27. As to the cu-- OF PATENTS AND COPYRIGHTS. 8611 plying copies of an original work or composition (/). From the nature of this right it must almost neces- sarily have had its origin at a period subsequent to the invention of the art of printing. And it appears that originally the copyright in a published book was practically secured to the author or his assigns in perpetuity, rather in consequence of the restric- tion placed on unhcensed printing and of the privileges and customs of the Stationers' Company, than of any express legal recognition {g). In 1710 copyright in books was limited by statute (h) to fourteen years from publication, with a reversionary like further term to the author, if still hving, and it was held that this statutory right excluded any com- mon law right which had previously existed to the exclusive production of copies of pubhshed works (i), though the author retained the sole right of pro- ducing unpubhshed works (k). The Statute of Anne was repealed by the Copyright Act, 1842 (l), com- monly loiown as Talfourd's Act, which extended copyright in books to the hfetime of the author and seven years from his death ; but if the seven years expired within forty-two years from publication, then the copyright lasted forty-two years (m) ; and there were other statutes defining the term of copyright in dramatic works and musical compositions, in sculpture, and in paintings, engravings, and photo- graphs, and providing for colonial and international copyright ; and also for preventing the importation of foreign reprints {n). All these statutes have been (/) Chappell V. Purday, 14 M. & W. 303, 316 ; Warne enne f'ominissioncrs, 1891, 1 Q. B. 239. These enactments still apply to settlements made on marriage or otherwise for valuable (other than pecuniary) considera- tion. But any conveyance or transfer operating as a voluntary dis- position inter vivos, and executed on or after the 10th April, 1910, is chargeable under sect. 74 of the Finance Act, 1910, with the like stamp duty as if it were a conveyance or transfer on sale ; and the stamp must be adjudicated ; stat. 10 Edw. VII. c. 8, s. 74, sub-ss. 1, 2 ; anir, p. 75, n. (c). And where any instrument is chargeable with duty both as a conveyance or transfer under this section, and as a settlement under the Stamp Act, 1891, it is to be charged with duty as a conveyance or transfer under this section, and not as a settle- ment under that Act ; sect. 74, subs. 4. Any conveyance or transfer (not being a disposition made in favour of a purchaser or incum- Stamps on settlements of money, stock or shares. Stamps on voluntary settlements. 398 OF PERSONAL ESTATE GENERALLY. Bonus. When shares in joint stock companies are settled in the manner above mentioned, it sometimes becomes a question whether any extraordinary benefit which may be divided amongst the share- holders by way of bonus should be considered as capital or as interest. The general principle upon which such questions will be determined has been thus stated by the Court of Appeal (y) : — " Where a testator or settlor directs or permits the subject of his disposition to remain as shares or stock in a company, which has the power either of distributing its profits as dividend, or of converting them into capital, and the com- pany validly exercises this power, such exercise of its power is binding on all persons interested under him, the testator or settlor, in the shares, and consequently what is paid by the company as dividend goes to the tenant for life, and what is paid by the company to the shareholder as capital, or ajiproi^riated as an increase of the capital stock in the con- cern, enures to the benefit of all who are interested in the capital. In a word, what the company says is income shall be income, and what it says is capital shall be capital." brancer or other person in good faith and for valuable consideration) shall, for the purposes of this section, be deemed to be a conveyance or transfer operating as a voluntary disposition inter vivos, and (except where marriage is the consideration) the consideration for any conveyance or transfer shall not for this purpose be deemed to be valuable consideration where the Commissioners are of opinion that by reason of the inadequacy of the sum paid as consideration or other circumstances the conveyance or transfer confers a sub- stantial benefit on the person to whom the property is conveyed or transferred ; sect. 74, sub-s. 5. A conveyance or transfer made for nominal consideration for the purpose of securing the repayment of an advance or loan, or made for effectuating the appointment of a new trustee, or the retirement of a trustee, whether the trust is expressed or implied, or under which no beneficial interest passes in the property conveyed or transferred, or made to a beneficiary by a trustee or other person in a fiduciary capacity under any trust, whether expressed or imphed, or a disentailing assurance not limiting any new estate other than an estate in fee simple in the person dis- entailing the property, shall not be charged with duty under this section, and this sub-section shall have effect notwithstanding that the circumstances exempting the conveyance or transfer from charge under this section are not set forth in the conveyance or transfer ; sect. 74, sub-s. 6. (y) Re Bouch, Sproule v. And see the cases there cited ; Bouch, 29 Ch. D. 635, 653, ap- and Juridical Review, xv. L proved 12 App. Cas. 385, 397. OF SETTLEMENTS OF PERSONAL PROPERTY. 399 A bonus paid as dividend belongs to the tenant for life. But if appropriated or paid as capital, the bonus ought to be invested upon the trusts of the settlement, and the income only paid to the tenant for hfe (z). Formerly no apportionment was made of annuities, or of the dividends of stocks settled in trust for one person for Hfe, with remainder to another ; but the remainderman was entitled to the whole of the aimuity or dividend which fell due next after the decease of the person entitled for life (a). If, how- ever, an annuity were given for the maintenance of an infant (6), or of a married woman Uving separate from her husband (c), the necessity of the case was considered a ground for presuming that an appor- tionment was intended. The interest of money lent was also always apportioned ; for though the pay- ment of such interest be made half-yearly, yet it becomes due de die in diem, so long as the principal remains unpaid (d). But the Apportionment Act, 1834 (e), provided for the apportionment of all annuities, dividends, and other payments made pay- able or coming due at fixed periods (/) under any (z) Be Alshury, 45 Ch. D. 237 ; Re Armitage, 1893, 3 Ch. 337 ; Re Malam, 1894, 3 Ch. 578 ; Re Fieraj, 1907, 1 Ch. 289. (a) Pearly v. Smith, 3 Atk. 200 ; tShcnard v. Sherrard, 3 Atk. 502 ; Warden v. Ashburner, 2 De G. & Sm. 366 ; The Queen v. The Lords of the Treasury, 16 Q. B. 357 ; see Paton v. Shep- pard, 10 Sim. 186. (6) Hay v. Palmer, 2 P. Wms. 501 ; 1 Swanst. 349, note. (c) Howell V. Hanjorth, 2 W. Black. 1016. (d) Edwards v. Countess of Warwick, 2 P. Wms. 176 ; Ban- ner V. Lowe, 13 Vcs. 135 ; Re Rogers s Trusts, 1 D. k, S. 339. (e) Stat. 4 & 5 Will. IV. c. 22, Apportion- ment of Annuity given for maintenance. Interest was always appor- tioned. passed 16th June, 1834. By s. 3, the provisions of this Act do not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums matlc payable in policies of assurance of any description. The Act also pro- vided for the apportionment of rents service and other rents ; see AVilliams, R. P. 131 and notes (e), (/), 21st ed. ; but made no apportionment of rent as between the heir or devisee and the exe- cutor of a tenant in fee simple ; Browne v. Amyot, 3 Hare, 173 ; Beer v. Beer, 12 C. B. 60 ; Re Cluloiv's Trusts, 3 K. & J. 689. (/) See Re MaxwdVs Trusts, 1 H. & M. 610. 400 OF PERSONAL ESTATE GENKRALLY, instrument executed or will coming into operation after the passing of the Act (g) on the death or deter- mination by any other means of the interest of a person entitled for a Ufe or other limited interest The Appor- therein (h). Now, by the Apportionment Act, is'to"^'^ ^ ' 1870 (i), all rents, annuities, dividends (k), and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise), shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. The apportioned part of any such rent, annuity, dividend or other payment shall be payable or recoverable, in the case of a continuing rent, annuity, or other such payment, when the entire portion, of which such apportioned part shall form part, shall become due and payable, and not before ; and in the case of a rent, annuity or other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable, if the same had not so determined, and not before (l). The same remedies are given for recovering the apportioned parts as (g) See Michell v. Michell, 4 and n. [l)), divisible between all Beav. 549 ; Knight v. Bougldon, or any of the members of such 12 Beav. 312 ; Wardroper v. respective companies, Avhether Cutfield, 10 Jur. N. S. 194. such payments shall be usually (A) See Browne v. Amyot, 3 made, or declared at any fixed Hare, 173, 182, 183 ; Re Cluloiv's time or otherwise ; and all such Trusts, 3 li. & J. 689 ; Carter v. divisible revenue shall, for the Taggart, 16 Sim. 447; Trimmer purposes of the Act, be deemed to V. Danhy, 23 L. J. Ch. 979 ; iSut- have accrued, by equal daily in- ton V. Ennis, 18 W. R. 882. crement during and within the (i) Stat. 33 & 34 Vict. c. 35 period for or in respect of which s. 2, passed 1st Aug., 1870; Be the payment of the same revenue diners Estate, L. R. 18 Eq. 213 ; shall be declared or expressed to Laurence v. Lawrence, 26 Ch. D. be made ; see Be Oppenheimer, 795. 1907, 1 Ch. 399. But the word (k) By sect. 5, the word " divi- " dividend '" does not include dends " includes, besides divi- payments in the nature of a dends strictly so called, aU paj^- return of reimbursement of ments made by the name of divi- capital ; see Jones v. Ogle, L. R. dends, bonus or otherwise, out of 8 Ch. 192 ; Be Griffith, 12 Ch, D. the revenue of trading or other 655. public companies (see ante, p. 343 (I) Sect. 3. OF SETTLEMENTS OF PERSONAL PROPERTY. 401 might have been used for recovering the entire portions (m). The Act does not render appor- tionable any annual sums made payable in poUcies of assurance of any description (n), or extend to any case in which it is expressly stipulated that no apportionment shall take place (o). But this Act extends the rule of apportionment to the case of a deceased person absolutely entitled to property, giving to his executors or administrators a right, as against his heir or devisee {])) or specific legatee (q), to an apportioned part of the income up to the time of his decease. An estate tail, such as that created bv a gift of ?^° estate tail , in personal lands to a man and the heirs of his body (r), has property. nothing analogous to it in personal property. An estate tail cannot be held in such property at law, neither does equity admit of any similar interest. A gift of personal property of any kind to A. and the heirs of his body Avill simply vest in him the property given (s). And in the construction of wills, where many informal expressions are allowed to vest an estate tail in lands, the general rule is that expres- sions, which if apphed to real estate would confer an estate tail, shall, when apphed to personal property, simply give the absolute interest {t). (m) Sect. 4 provides that in the (o) Sect. 7 ; see lie Oppen- case of an entire or continuing heiiner, 1907, 1 Ch. 399. rent reserved out of or charged (p) Capron v. Capron, L. R. 17 on lands or hereditaments of any Eq. 288 ; Hasluck v. Pedley, tenure, the persons liable to pay L. R. 19 Eq. 271 ; Constable v. the rent and the lands or here- Cuiistdhle, 11 Ch. D. 681. ditaraents shall not be resorted (q) Pollock v. Pollock, L. R. to for the recovery of any appor- 18 Eq. 329 ; lie Grif/ith, 12 Ch. tioncd part of the rent, but the D. ()55 ; Re Oppcnheimer, 1907, whole rent shall Ix.' paid to the 1 Ch. 399. person who \\ould have been (;) See Williams, R. P. 90, entitled to receive the same, if 21st ed. not apportionable, and tho ap- (s) Fearne, Cont. Rem. 461, portioned part shall be recovered 463 ; Donaistcr v. Doncaster, 3 from him. Kay & J. 20. (n) Stat. 33 & 34 Vict. c. 35, (t) 2 Jarm. Wills, p. 1193, 6th s. 6. ed. ; Re Lowman, 1895, 2 Ch. 348. W.P.P. 26 402 OF PERSONAL ESTATE GENERALLY. Word " heii's " inapplicable to personal estate. The same effect will be produced by a gift of such property to a man and his heirs. The words " heirs," and " heirs of his body," are quite inap- plicable to personal estate ; the heir, as heir, has nothing to do with the personal property of his ancestor. Such property has nothing hereditary in its nature, but simply belongs to its owner for A simpk gift the time being. Hence, a gift of personal property to A. simply, without more, is sufficient to vest in him the absolute interest (w). Whilst, under the very same words, he would acquire a hfe interest only in real estate (x), he will become absolutely entitled to personal property. Thus a gift of lands to A. for life, and after his decease to B., gives to B. a mere life interest in remainder expectant on the decease of A. (y) ; unless indeed the gift be made by will subsequently to the Wills Act (z). But a gift of personal property to A. for hfe, and after his decease to B., gives to B. a vested equitable interest in the corpus or body of the fund, to which he becomes absolutely entitled, subject only to A.'s life interest ; and the circumstances of B.'s dying in the lifetime of A. would be immaterial (a). Example. Use of the words " exe- cutors, ad- ministrators, and assigns." It is true that in deeds and other legal instruments it is usual to transfer personal estate absolutely by the use of the words " executors, administrators and assigns." As real estate is conveyed to a man, his heirs and assigns (6), so personal property is assigned to him, his executors, administrators and assigns. The executor or administrator is, as we shall see, the person who becomes legally entitled (m) Byng v. Lord Strafford, 5 Beav. 558 ; afifirmed, noni. Hoare V. Byyig, 10 CI. & Pin. 508 ; Re Percy, 24 Ch. D. 616 ; see also Re Johnston, Cockerell v. Earl of Essex, 26 Ch. D. 538. (x) Williams, R. P. 112, 148, 207, 21st ed. {y) Goodtitle d. Richards v. Edmonds, 7 T. R. 635. (2) Stat. 7 WiU. IV. & 1 Vict, c. 26, s. 28 ; see Wilhams, R, P. 113, 114, 21st ed. (a) Benyon v. Maddison, 2 Bro. C. C 75 '{h) See WiUiams, R. P. 149, 207, 21st ed. OF SETTLEMENTS OF PERSONAL PROPERTY. 403 to a man's personal estate after his decease ; in the same manner that a man's heir or assign becomes entitled to his real property. But the analogy- extends no further. There is no necessity for the use of these terms (c) as there is for the employment of the word " heirs " {d). These terms, however, are constantly employed in conveyancing as words of limitation of an absolute interest ; and a rule has sprung up with respect to their construction similar to the rule in Shelley's case, by which the word j^^ig j^ gj^gj. " heirs," when following a Ufe estate given to the ley's case, ancestor, is merely a word of Hmitation, giving to such ancestor an estate in fee (e). Thus, if money or stock be settled in trust for A. for life, and after his decease in trust for his executors, administrators and assigns, A. will be simply entitled absolutely (/ ) ; in the same manner as the gift of lands to A. for his hfe, with remainder to his heirs and assigns, gives him an estate in fee simple. But as the rule, so far as it apphes to personal property, is not founded on the same strict principle as the rule in Shelley's case, a gift of such property to the executors or administrators (not adding assigns) of a person who has taken a previous hfe interest is sometimes con- strued as giving him no further interest in such property (g) ; whilst, under the same circumstances, the word " heirs " in a gift of real estate would have given him the fee simple. As no estates can subsist in personal property, it Rules as to follows that the rules, on which contingent remain- ^o^tif'gf'it ° remainders do (c) Elliott V. Davenport, 1 P. Oayler, 5 Beav. 157 ; Meryon v. Wms. 84. Sec Earl of Lonmlale Collelt, 8 Beav. 386 ; Morris v. V. Countess of Berchtoldl, Kay, Howes, 4 Hare, 599 ; Mackenzie 646. " V. Mackenzie, 3 Mac. & G. 559 ; (d) Ante, n. (6). Wehh v. Sadler, L. R. 8 Ch. 419. (e) Sec Williams, R. P. 34(5 (g) Wullis v. Taylor 8 Sim., sq., 21st ed. 241 ; see 1 Beav. 52 ; Daniel v. (/) Co. Litt. 54 b ; Hames v. Dudley, 1 Ph. 1 ; Attorney-Gen- Hames, 2 Keen, 646 ; Orafjtey v. eral v. Malkin, 2 Ph. 64 ; Alger Humpage, 1 Beav. 46 ; Howtll v. v. Parrotl, L. R. 3 Eq. 328. 26—2 404 OF PERSONAL ESTATE GENERALLY. not apply to contingent dispositions of personal property. Limit to future dis- positions. ders in freehold lands depend for their existence, have never had any application to contingent dis- positions of personal property {h). Such disposi- tions partake rather of the indestructible nature of executory devises and shifting uses. Thus a gift of lands to A. for his life, and after his decease to such son of A. as shall first attain the age of twenty-one years, creates a contingent remainder, which, before the passing of the Contingent Remainders Act, 1877 (i), would have failed in the event of no son of A. having attained the prescribed age at the time of his decease (j). The reason of this failure de- pended on the ancient rule, that there must always be some defined owner of the feudal possession ; and, consequently, between the time of the death of A. and the time of his son's attaining the age of twenty- one years, some owner of the freehold ought to have been appointed, in whom the feudal possession might continue (k). Personal property, however, has evidently nothing to do with these feudal rules relating to possession. If, therefore, a gift be made of personal property to trustees, in trust for A. for his life, and after his decease, in trust for such son of A. as shall first attain the age of twenty-one years ; or if a term of years be bequeathed to A. for his life, and after his decease to such son of A. as shall first attain the age of twenty-one years ; it will be immaterial whether or not the son attain the age of twenty-one years in the lifetime of his father. On his attaining that age, he will become entitled quite independently of his father's interest. His owner- ship will spring up, as it were, on the given event of his attaining the age. But as the indestructible (/() Be Bowles, 1902, 2 Ch. 650, 653, deciding tliat the rule in Whitby V. Mitchell 44 Ch. D. 85, has no appKcation to settle- ments of personal property ; see WilUams, R. P. 413, 416, n. (i), 21st ed. («■) Stat. 40 & 41 Vict. c. 33 ; Williams, R. P. 364, 410, 21st ed. (j) Festing v. Allen, 12 M. & W. 279 ; 5 Hare, 573 ; Holmes v. Prescott, 10 Jur. N. S. 507 ; 12 W. R. 636. {k) Ante, n. [i). OF SETTLEMENTS OF PERSONAL PROPERTY. 405 nature of these future dispositions of personal estate might lead to trusts of indefinite duration, the rule against perpetuities, which confines executory inter- ests within a life or lives in being, and twenty-one years afterwards, with a further allowance for the time of gestation, should it exist (/), applies equally to personal as to real estate. And the further Restraint on restrictions on the accumulation of income imposed accumulation. by the Thellusson Act (w), and the Accumulations Act, 1892 (n), apply to trusts for the accumulation of the income of personal estate as well as real. Equitable interests in personal property of a Powers. future kind may be created through the instrumen- tality of powers, in a similar manner, and to the same extent, as future estates in land (o). Thus stock in the funds may be vested in trustees upon such trusts as B. shall by any deed or by his will appoint, and in default of and until any such appointment, in trust for C, or upon any other trusts. Here C. will have a vested interest in the stock, subject to be divested or destroyed by B.'s exercising his power of appointment ; and B., though not owner of the stock, has power to dispose of it by deed or will, and may if he please appoint to himself ; in which case the trustees will be bound to transfer it to him. If the powers should not be exercised by B., G. will then be entitled absolutely ; and will not, as was formerly the case with respect to landed property, be subject to judgment debts incurred by B. (p), or to any other of his debts. But if B. shoukl exercise his power by deed without If power is valuable consideration, or by will, in favour of a ^^ithou^*^ third person, the stock so appointed will be con- valuable con- (l) Williams, R. P., 405—407, Williams, R. P. 408, 40!», 2 1st ed. 21st ed. (o) See Williams, R. P. 381, (w) Stat. 39 & 40 Geo. III. 21sted. c. 98. {])) See Williams, R. P. 381, {n) Stat. 55 & 50 Vict. c. 58 ; 382, and n. (g), 21st ed. 406 OF PERSONAL ESTATE GENERALLY. sideration, the })roperty appointed is subject to debts of appointor. Bankruptcy. Ruks respecting powers over real estate apply to powers over personal property. sidered in equity as part of the assets of B. the appointor, and would be subject to the demands of his creditors in preference to the claim of the appointee (q). B.'s own property must, however, be first exhausted in satisfying his Kabilities (r). In case of bankruptcy, as we have seen, the trustee in bankruptcy is enabled to exercise for the benefit of the creditors all such powers in, over, or in respect of property as might have been exercised by the bankrupt for his own benefit at the com- mencement of the bankruptcy, or before his dis- charge, except the right of nomination to a vacant ecclesiastical benefice (s). The rules respecting the necessity of a compliance with the terms and formahties of the power (t), and the relief afforded by the Court on the defective exercise of a power (w), apply as well to personal as to real property. Powers over personal estate may also be exercised by women, without their husbands' consent, and also in favour of their husbands, in the same manner as powers over land {x), independently of the provisions of the Married Women's Property Act, 1882 (y) ; and the provision of the Wills Act, which requires wills made in exercise of powers to be executed and attested hke all other wills (z), (q) Lassells v. Cornivallis, 2 Vern. 465 ; Bainton v. Ward, 2 Atk. 172 ; Bey Jus v, Lawleij, 1903, A. C. 411 ; Re Guedalla, 1905, 2 Ch. 331. The doctrine applies also to appointments of real estate ; Williams, R. P. 382, 21st ed. (r) Fleming v. Buchanan, 3 De G., M. & (A. 976, 979 ; 2 Jarm. Wills, 2028, 6th ed. ; sec Wil- liams V. Williams, 1900, 1 Ch. 152. (*■) A7ite, pp. 280, 284. Stats. 32 & 33 Vict. c. 71, ss. 15 (4), 25 (5); 12 & 13 Vict. c. 106, s. 147 ; and 6 Geo. IV. c. 16, s. 77, had a similar effect. (0 See WilMams, R. P. 384, 21st ed. (u) Ibid., 386. (x) Ibid., 387, 388. (y) Stat. 45 & 46 Vict, c, 75, s. 1 (1). See Wilhams' Convey- ancing Statutes. 373, 383—386. (2) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 10 ; see Williams, R. P. 387, 21st ed. ; and as to wills exercising powers over personalty of persons domiciled out of England, 2 Wms. V. & P. 294, and n. {d), 2nd ed. OF SETTLEMENTS OF PERSONAL PROPERTY. 407 applies equally to powers over personal estate. A general bequest of personal estate will also now include any personal estate which the testator may have only a power to appoint as he may think fit, in the same manner as a general devise of real estate will comprise real estate subject to any such power (a). A frequent instance of the employment of a power Appomtmenfc over personalty occurs in the case of children's po^tjons.^"^ ^ portions, which are usually settled on all the children equally, subject to a power given to the parents to appoint the shares in a different manner (6). When such a power is exercised, the shares previously vested in the children are divested from them, and new shares are vested in them by the operation of the power. Formerly, if such a power were so worded as not to authorise an exclusive appoint- ment to some or one of the children, it was held by the Court of Chancery, as a rule of equity, that each child ought to have a substantial share ; and an appointment to any child of a very small share was called an illusory appointment, and was held void (c). But this doctrine having given rise to difficulties Illusory and family disputes, from the uncertainty of the ments. question what was too small or what a sufficient share, the meddlesome doctrine of equity on this point was abohshed by the Illusory Appointments The doctrine Act, 1830 {d) ; and now the appointment of any °{jStd."'"'' share, however small, cannot be set aside on the ground of its being illusory. The Act extends, as did the doctrine, to real estate as well as personal ; but landed property is, from its nature, seldom cut up into Uttle portions. (a) Stat. 7 Will. IV. & I (h) See form of settlement in Vict. c. 26, s. 27 ; sec Williams, Appendix C, post. R. P. 389, 21st ed. ; Phillips v. (c) 1 Sugd. Pow. 568 sq. ; 449, Cayley, 43 Ch. D. 222 ; Be Jacob, 8th ed. ; Chance on Powers, 396 sq. 1907, 1 Ch. 445 ; lie Seabrook, (d) Stat. 11 Geo. IV. & 1 \\ill. 1911, 1 Ch. 151. IV. c. 46, 16th July, 1830. 408 OF PERSONAL ESTATE GENERALLY. Exclusive appointment, when void. New enact- ment. Although no appointment was, since this Act, void for being illusory, yet where an exclusive appointment was not authorised, any appointment, by which any object of the power would be entirely excluded, was until the year 1874 still void. Thus, if 1,0001. were given to A., B., and C. in such shares as their father should appoint, and in default of appointment to them equally, an appointment of dOOl. to A. would have been good, as lOOZ. would remain to be equally divided between the three (e), of which B. and C. would get each one-third (/). But a subsequent appointment of the remaining 1001. to B. would have been void, as altogether excluding C, who was equally an object of the power (g). Now, by the Powers of Appointment Act, 1874 (h), no appointment which shall thereafter be made in exercise of any power to appoint any property, real or personal, amongst several objects, shall be invalid at law or in equity on the ground that any object of such power has been altogether excluded ; but every such appointment shall be vahd and effectual, notwithstanding that any one or more of the objects shall not thereby, or in default of appointment, take a share or shares of the property subject to such power {i). It is customary, however, in modern settlements to give to parents an express power of appointment in favour of any one or more of the children exclusively of the others. And in order that those, to whom appointments (e) Young v. Watcrpark, 13 Sim. 202. {/) Wilson V. Piggott, 2 Ves. jun. 351 ; 2 R. R. 246 ; Woml- well V. Hanrott, 14 Beav. 143. See Foster v. Cautlei/, 6 De Gex, M, & G. 55 ; Bulteel v. Plummer, L. R. 6 Ch. 160. (g) 2 Ves. jun. 355. (/;) Stat. 37 & 38 Vict. c. 37, s. 1, passed 30th July, 1874, (0 By sect. 2 it is provided that nothing in the Act contained shall prejudice or affect any pro- vision in any deed, \viil or other instrument creating any power, which shall declare the amount or the share or shares from which no object of the power shall be excluded, or some one or more object or objects of the power shall not be excluded. OF SETTLEMENTS OF PERSONAL PROPERTY. 40i) have been made, shall not obtain more than may- have been intended for them, it is generally provided that no child taking any share of the fund under any appointment shall be entitled to any share in the part unappointed without bringing his or her share into hotchpot, and accounting for the same Hotchpot accordingly (k). Under such a provision, A., in the instance above given, would not be entitled to any share in the 1001. unappointed, without also agreeing to a hke division of his 900/. amongst himself and the others. The clause of hotchpot operates favour- ably to the representatives of those children who may happen to die before any appointment shall have been made to them. For when a power is given to appoint amongst children, no appointment can be made to the executors or administrators of those who may have died (l) ; so that such executors or administrators cannot possibly take more than the aliquot part given to the deceased child in default of any appointment ; whilst they may be partially or totally excluded even from that by a partial or complete exercise of the power of appoint- ment in favour of the surviving children, or even of a single survivor. When the appointment is partial only, the executors or administrators of a deceased child will, under the hotchpot clause, divide the fund unappointed with the other children, to whom no appointment may have been made ; whereas, without such a clause, the children to whom appoint- ments had been made would be equally entitled to participate in the part unappointed (wr). No appoint- ment can be made to exe- cutors or ad- ministrators of deceased objects. When a power is given to appoint property Appointment amongst a particular class, no portion of the fund cla^s.^^^ (k) Sec form of settlement in Appendix C, post. (I) Boyk V. The Bishop of PelerboroiKjh, 1 Ves. jun. 20!) ; 2 R. R. 108 ; Jiiclcetts v. Loflu-s, 4 You. & Coll. 519. {in) Wilson v. Piijgoll, 2 Ves, jun. 351 ; 2 R. R. 246 ; Wotnb- well V. Hanrott, 14 Beav. 143 ; W'ahnshi/ v. Vdin/han, 1 Dc G. & J. 114. 410 OF PERSONAL ESTATE GENERALLY. Children. Nephews. Younger children. Child en ventre sa mere. can be appointed in favour of any person who is not a member of that class ; and any appointment to such person will accordingly be void. Thus, if the power be to appoint the property to all or any of the children of the appointor in such manner as he may think fit, no interest in the property can be appointed to any grandchild of the appointor ; for a grandchild is not an object of the power {n). So if the power be to appoint amongst nephews or grandnephews, those only can take any shares who answer that description (o). Again, if the power be to appoint portions amongst younger children, nothing can be taken by a younger son who after- wards becomes the eldest by the decease of his elder brother {p) ; although if he should have actually received any share in the money whilst a younger son, he will not be obhged to refund it on becoming the eldest (g). The word " younger," however, is taken in parental provisions (r), not literally, but as meaning any child who may not be entitled to the family estate. Therefore a daughter, who may be the eldest child, would be considered as a proper object of a power to appoint amongst the younger children, whilst her younger brother, being the eldest son entitled to the family estate, would not be allowed to participate {s). And in the same manner a second son becoming the eldest, but not obtaining the family estate, would be allowed a share {t). A power to appoint amongst children living at their {n) Alexander v. Alexander, 2 Ves. sen. G40 ; Bristow v. Warde, 2 Ves. jun. 33G ; 2 R. R. 235. (o) Falkner v. Butler, Amb. 514; Waring Y. Lee, 8 Beav. 24:7. (p) Chadwick v. Doleman, Vern. 528 ; Lord Teynham v. Wehh, 2 Ves. sen. 198 ; Gray v. Earl of Limerick, 2 De G. & S. 370. See Sandeman v. Macken- zie, 1 J. & H. 613. (q) 2 Sugd. Pow. 293; G80, 8th ed. (?) Hall V. Ileiver, Amb. 203 ; Lyddon v. Ellitton, 19 Bcav. 565. (s) Fierson v. Garnet, 2 Bro. C. C. 38 ; Heneage v. Hunloke, 2 Atk. 456 ; Beale v. Beale, 1 P. Wms. 244. (t) Spencer v. Spencer, 8 Sim. 87 ; Macouhrey v. Jones, 2 Kay & J. 684 ; Sing v. Leslie, 2 H. & M. 68. OF SETTLEMENTS OF PERSONAL PROPERTY. 411 father's decease includes a child en ventre sa mere (u). In some cases where the power only authorises When an ap- an appointment amongst children, an appointment tiir^t^iTo/a in favour of the issue of a child may be sustained child is good. as being, in effect, first an appointment to the child, and then an assignment by such child in favour of his issue (x). But this, of course, can only be done when the child is of age, and is a party to and exe- cutes the deed by which the appointment is made. And the more regular plan in such cases is, for the father first to make the appointment in favour of the child, and then for the child to make an assign- ment of the fund appointed to trustees in trust for his children in the manner intended. It is now usual, however, to insert in settlements of personalty made on marriage or by will a power to appoint the settled trust funds amongst the issue, whether children or more remote, of the marriage or of the particular person intended to be benefited (y) ; and under a power of this kind an appointment to a grandchild or more remote descendant will be perfectly vahd, provided that the interest so ap- pointed must necessarily vest (if at all) within the period allowed by the rule against perpetuities (z). An appointment by a father in favour of his Appointment child, in exercise of a power for that purpose, ought ^^^^^^^ jf^t be to be made for the benefit of the child who is the for his own object of the provision, and not indirectly for the benefit of the father who makes the appointment, or of any other person. Accordingly, any exercise Fraud on tlie power. (m) Beak v. Bcale, 1 P. Wnis. (;/) Sec the form of marriage 244. settlement in Appendix C, post, (x) Routledge y. Dorril, 2 Ves. (z) Ante, p. 405 ; see post, pp. jun. 357 ; 2 R. R. 250 ; West v Berney, 1 Russ. & My. 431, 439 32 R. R. 237 ; Uoldsmid v. Gold smid, 2 Hare, 187 ; Limbard v (Jrole, 1 My. & K. 1. 412—414 ; Williams, R. P. 417, and n. (/), 21st cd. ; Be Boides, 1902, 2 Ch. <)50 ; Re Thonifson, 1900, 2 Ch. 199. •112 or PERSONAL ESTATE GENERALLY. Perpetuity to be avoided in the exercise of powers. of the power under a bargain for or even with a view to the benefit of the appointor, or of any other person than one of the objects of the power, will be considered as, in technical phrase, a fraud on the power, and will be void {a). But when there is no evidence that the appointment is made under a bargain for the benefit of the father, although there may be strong suspicion that such is the case, the appointment cannot be set aside (b). Powers of appointment amongst children usually enable the parent to fix the age or time at which the fund appointed shall vest in any child. But, on the principle just stated, a father will not be allowed to make an immediate appointment to an infant child, for the sake of becoming himself entitled to the fund appointed, as the child's personal represen- tative, in the event of its decease (c). An appoint- ment to an infant is not, however, necessarily void on account of the circumstance that the father who has made the appointment, will become entitled to the property appointed in the event of the child's decease (d). In the exercise of powers of appointment amongst children or issue, care must be taken not to postpone the vesting of their shares to a period which may exceed the limits allowed by the law of perpetuity (e). When the power of appointment is a general power, enabling the appointor to make a disposition in favour of any object he may please, the property (a) Daubeney v. Cockburn, 1 Mer. 626 ; Palmer v. Wheeler, 2 Ball & B. 18 ; Jackson v. Jack- son, 1 Dru. 91 ; Thompson v. Simpson, 2 Jo. & Lat. 110 ; Top- hnm V. Duke of Portland, 1 De G., J. & S. 517; 11 H. L. C. 32; Pryor v. Pryor, 2 De G., J. & S. 205. {b) McQueen v. Farquhar, 11 Ves. 467; 8R. R. 212; Hamilton V. Kirwan, 2 Jo. & Lat. 393 ; Campbell v. Home, 1 You. & Coll. N. C. 664. (c) Cunynghame v. Thurlou; 1 Russ. & M. 436 ; 32 R. R. 242 ; Lord Sandtvich\s case, cited 11 Ves. 479 ; Gee v. Gurney, 2 Coll. 486. {d) Butcher Y. Jackson, 14 Sim. 444 ; Fearon v. Desbrisay, 14 Beav. 635 ; Henty v. Wrey, 21 Ch. D. 332. (e) See cmte, p. 405. OF SETTLEMENTS OF PERSONAL PROPERTY. '1 13 if? evidently not tied up so long as such a power exists over it ; and neither the reason nor the rule which forbids a perpetuity has any apphcation till some settlement is made in exercise of such a power. In such a case, therefore, the limits of perpetuity commence from the time of the appointment (/). But where the power of appointment is to be exercised only in favour of a particular class of objects, the property subject to the power is evidently already tied up in favour of that class. The Umits of perpetuity are therefore in this case to be reckoned, not from the time of the exercise of the power, but from the date of its creation. The interests given by the power must, for this purpose, be regarded as if they had been inserted in the settlement by which the power was created ; and if such interests would have been too remote, if inserted in the original settlement, they will be too remote when given in exercise of the power {g). Thus a person having a general power of appoint- ment by will over a fund, may by his will appoint a share of it in favour of any unborn child of his own, to be vested in such child on his attaining the age of twenty-three years. The Hmit of perpetuities is reckoned from the time of the appointment, which in this case is the death of the appointor, when his will begins to take effect. The child must neces- sarily then be born, or en ventre sa mere, and the child's Ufe is accordingly the hfe then in being within which the share must necessarily vest. But if by a marriage settlement a fund be settled in trust for the father for his life, and after liis decease in trust for the children, in such shares as he shall (/) 1 Sugd. Pow. 249, 495 ; 52(5— 52()C, 2ik1 ed. 395, 8th cd. ; Rou.i v. Jack-wn, 29 {g) Co. Litt. 271 b, n. (1), vii., Ch. D. 521 ; lie Flower, 55 L. J. 2 ; 1 Sugd. Pow. 498 ; 39(i, 8th Ch. 200 ; Stiuirl v. Bahinglon, 27 cd. ; Roulledge v. Dorril, 2 Ves. L. R. Ir. Ch. 551. Cf. Gray, jun. 357 ; 2 R. R. 250. Rule against Perpetuities, sects. 414 OF PERSONAL ESTATE GENERALLY. appoint by his will, he cannot make an appointment in favour of any unborn child, to be vested on his attaining the age of twenty- three years. For in this case the limit of perpetuities counts from the date of the settlement, when the property was first tied up for the benefit of the children ; and this limit would be exceeded if the cliild should not attain the given age within twenty-one years after the decease of the father, who was the Hfe in being at the date of the settlement. And the rule is, that every limitation which may exceed in duration a life or fives in being, and twenty-one years after- wards (allowing for the period of actual gestation), is void as tending to a perpetuity (h). The Courts When personal property is directed to be paid to interests ^^**^^^ ^^^ persons at a future time, the leaning of the Court is always in favour of vested interests ; that is to say, the Court leans to that construction which will give to the parties a present assignable and transmissible right to that which is not payable till a future time. Thus if a legacy be given to a person to be payable when he attains the age of twenty-one years, the legacy is considered to be immediately vested, and will accordingly be payable to the administrator of the legatee in case he should die under age {%). So if personal estate be settled in trust for A. for life, and after his decease for all his children in equal shares, each of his children will be entitled to a share, whether such child survive his parent or not, and although such child should Vesting of die in infancy {k). If, however, the property should charge'don consist of money charged on land or other real land. estate, such as the portions of younger children when the family estate is entailed on the eldest (A) See Williams, R. P. 406, {k) Skeyv. Barnes,3Mei\^S5 ; 407, 21st ed. 17 R. R. 91 ; Templeton v. War- («■) Black. Comm. 153 ; Co. rington, 13 Sim. 267. See Swal- Litt. 237 a, note (1). low v. Binns, 1 K. & J. 417. OF SETTLEMENTS OF PERSONAL PROPERTY 415 son, the rule is different ; and if any of the children should die before the time when his or her portion becomes payable, it will, in the absence of special provision to the contrary, sink into the land for the benefit of the estate (Z). In the settlement of personal property upon children the plan now usually adopted is to vest the interests given in those only who, being sons, attain the age of twenty-one years, or, being daughters, attain that age or marry under it (m). In this method of settlement, no interest either in the income or in the principal of the settled property is given to the children during minority, or, in the case of daughters, until marriage under age. And there was formerly no provision, in the absence of express directions, for the application of the income, after the parents' death, toward the children's main- enance and education during their minority. Such directions, therefore, were always inserted, with a provision for the accumulation of the surplus income by way of increase of the princi- pal. If, however, the provision were made by a parent, or by a person in loco jmrentis (n), or if the whole property were ultimately to go amongst the children (o), or if the persons entitled, in the event of the children not Kving to attain vested interests, should agree {p), the Court would direct the income to be apphed for the children's maintenance in the absence of sufficient provision for that purpose, and even in the face of an express direction to accumu- late the income (q). The Conveyancing Act, 1881, (I) Co. Litt. 237 a, n. (1). See Evans v. Scott, 1 H. L. C. 43, 57. (m) Sec Williams on Settle- ments, KJO, 162; Davidson, Prec. Conv. iii. KiO, 3rcl ed. ; Appendix C, post. (»i) Chambers v. Goldwin, II Ves. 1 ; 8 R. R. 61 ; Martin v. Martin, L. R. 1 Eq. 369. Vesting of in- terests given to children. Maintenance and educa- tion. Statutory power as to maintenance. (o) Ilaky V. Bannister, 4 Mad. 275 ; 20 R. R. 299 ; Errat v. Barlow, 14 Ves. 202 ; 9 R. R. 273. (p) Turner v. Turner, 4 Sim. 430 ; Cannings v. Flower, 7 Sim. 523. (q) Orcenwell v. Greenudl, 5 Ves. 194. 416 OF PERSONAL ESTATE GENERALLY. contains provisions (r) purporting to authorise trustees holding any property in trust for an infant, either for Ufe, or for any greater interest, and whether absolutely, or contingently on his attaining the age of twenty-one years, or on the occurrence of any event before his attaining that age, to apply the income of that property, or any part thereof, for or towards the infant's maintenance, education or benefit. In consequence of the construction now placed upon these provisions {s), it appears sufficient to rely upon them in drafting instruments intended to carry out the mode of settlement above referred to, or in any case in which a gift of property is made in trust for an infant or a class of infants contin- gently, in such a way that upon the happening of the contingency the intermediate income, from the date of the gift until the happening of the contin- gency, will go to the donee or donees as well as the principal. But if the gift of the principal be so made as not to carry with it the intermediate income, such income cannot be appKed under the Act for infants' maintenance (t). In marriage settlements a hfe interest is usually and properly given to the father and mother (w) ; so that no provision is required for the maintenance of the children until after the decease of the survivor. (r) Stat. 44 & 45 Vict. c. 41, applied only to deeds executed s. 43, which applies to instru- and Anils executed or confirmed ments coming into operation or revived by codicil executed on before or after the commence- or after the 28th Aug., 1S60 ; and ment of the Act, but only if and they were repealed by the Act of as far as a contrary intention is 1881. See Re Cotton, 1 Ch. D. not expressed in such instru- 232 ; Re George, 5 Ch. D. 837. ments, and subject to the pro- (.s) Re Holford, 1894, 3 Ch. 30 ; visions thereof ; see Re That- Re Woodin, 1895, 2 Ch. 309 ; Re Cher's Trusts, 20 Ch. D. 426 ; Re Jeffery, ib. 577. Cocper, 1913, 1 Ch. 350. Some- [t) Re Judkins Trusts, 25 Ch. what similar provisions with D. 743 ; Re Dickson, 29 Ch. D. regard to maintenance were 331 ; see Re Clements, 1894, 1 Ch. made by " Lord Cranworth's 665 ; Re Boirlby, 1904, 2 Ch. 685. Act," stat. 23 & 24 Vict. c. 145, {u) See form of settlement in ss. 26, 33 ; but these provisions Appendix C, post. INVESTMENTS IN W^ICH TRUSTEES MAY BY LAW INVEST TRUST MONEY UNDER THE TRUSTEE ACT, 1893, SECT. 1. (a) In any of the parliftnientBry stockB or public funds or Governmeiit securities if the United Kingdom ; (b) On real or heritable securities in Great Britain or Ireland ; (c) In the stock of the Bank of England or the Bank of Ireland ; (d) In India SJ per cent, stock, and India 3 per cent, stock, or in any other capital ttoL-k which may at anv tinio hereafter be issued by the Secretary of State in Council )l India under the autiiority of Act of Parliament, and charged on the revenues of India ; (e) In any Bccuritios the interest of which is for the time being guaranteed by Pac- (f) In ronsolidated stock created by the Metropolitan Board of Works, or by the Colonial Stock Acts, 1877, 1892 and 1900, and with respect observed such conditions (if any) as the Treasury may by order UazeMc proscribe. See the- Slo'-i: Exchamje. ■' (.Iflici^il (q) (By virtue of tl,. M.n, .,,..],- W .m .\. i. l:n which there have been notified in the London J " for these stocks. VII. c. 41, 8. 17 (4).) per cent. Annuitie - ; 2/. 10a. per cei n ol not k-ss than two hundrud years [j pulitan t as ia mentioned in sub-section (g), cent. L iipany ; Stock ; sed in the register of annuitants Class C of the • bo issued, by the corporation of any [r«/ac^f.. 417. OP SETTLEMENTS OF PERSONAL PROPERTY. 417 It is the duty of trustees where the purposes of Investment , , . . , e . . • . 1 of trust funds. their trust are oi a permanent nature, as in the case of trusts for parents for their Uves, and afterwards for their children, to invest the funds which are placed under their control in such manner as is specified in the instrument creating the trust, or in the absence of express directions as to investment, in securities in which trustees are by law authorised to invest trust money {w). Of late years it has been the practice in drawing express directions for the investment of trust funds, to allow a much wider range of investment than was formerly thought prudent (x). The range of investment allowed to trustees by law has also been very considerably extended, and under the Trustee Act, 1893 (1 ; see Williams' Convey- see Cookson v. Cookson, 8 Sim. aiuing Statutes, 238 — 240. 456 OF PERSONAL ESTATE GENERALLY. No tenancy in common at law of a chose in action. Otherwise in equity. Letters- patent. of a joint ownership, or from a gift to two or more to hold in common (6). But a joint ownership of a chose in action cannot be severed at law by either, or even by both, of the joint owners (c). And in case of the bankruptcy of a joint creditor, by whicli all his estate became vested in his assignees, an action against the debtor must formerly have been brought in the joint names of the assignees and the other joint creditors {d). And if two joint creditors should have become bankrupt, the action must have been brought in the joint names of the assignees of both of them (e). But by the Bankruptcy Act, 1883 (/), as under the Act of 1869 {g), where a bank- rupt is a contractor in respect of any contract jointly with any person or persons such person or persons may sue or be sued in respect of the con- tract without the joinder of the bankrupt. A tenancy in common cannot in fact exist at law of a chose in action [h). A. may owe 20L to B. and C. jointly or he may owe \0l. to B. and lOZ. to C. ; but he cannot owe 20Z. to B. and C. in common. If each has a several cause of action, each must sue separately. In equity, however, the case is different. Though B. and C. are joint owners at law, in equity they may be owners in common ; and on the decease of either of them, his share may in equity belong to his representatives, instead of accruing beneficially to his companion. And with regard to letters- patent, it appears that, even at law, they may be the subject oi an ownership in common, and that the assignee of an undivided share may alone sue {b) Litt. sect. 32 L (c) See Re McKerreJl, 1912, 2 Ch. 648, 653. {d) Thomason v. Frere, 10 East 418 ; 10 R. R. 341. See stat. 46 & 47 Vict. c. 52, s. 113, and the repealed stats. 32 & 33 Vict. c. 71, s. 105 ; 12 & 13 Vict. c. 106, s. 152, and 5 & 6 Vict. c. 122, s. 31. (e) See Hancock v. Hcyuood, 3 T. Rep. 433. (/) Stat. 46 & 47 Vict. c. 52, s. 114. ig) Stat. 32 & 33 Vict. c. 71, s. 112. (/i) Re McKerrell, 1912, 2 Ch. 648, 653. or JOINT OWNERSIIir AND JOINT LIABILITY. 457 Gifts by will which make a tenancy in for an infringement of that part of the patent, witli- out joining the persons interested in the remaining shares (i). And one owner in common of letters- patent can work the patent on his own account, without the concurrence of the others (k). In decid- ing whether a tenancy in common has been created bj'' deed, there is very seldom any difficulty. But in wills, where greater indulgence i^^ given to informal words, the rule is, that any words which denote an common intention to give to each of the legatees a distinct interest in the subject of gift, will be sufficient to make them tenants in common. Thus a gift by will to two or more persons " equally to be divided between them " (l), or simply " between them " (m), or " in joint and equal proportions " (n), or " equally " (o), or " respectively " (ji), or " to be enjoyed alike " (q), will make such persons tenants in common, and not joint tenants, as they would have been without the insertion of such words. In this respect the rule is the same whether the subject of the devise or bequest be real or personal estate (r). Owners in common of personal estate, like tenants Owners in in common of lands, have merely a unity of posses- meTely" a ^"^^ '^ sion : the interest of one may be larger or smaller unity of pos- than that of the other, one having, for instance, ^^®'*^°"- one-third, and the other two-thirds of the property. So the title need not be the same, as one may have been originally a joint tenant with a third person, (/) DuHiiidlff V. Mullttt, 7 C. B. N. S. 20!) ; Walton v. Lumter, 8 C. H. N. S. 102. [k] Mathers v. Green, L. C. L. R. 1 Cli. 29 ; Hteer.-i v. Rogers, 1893, A. C. 232. (I) Blisset V. Cranirell, 1 Salk 220 ; Phniips V. Phillips, 2 \'ern. 4.'{U ; 1 Eq. Ca. Abr. 292. jtl. (i ; 1 \>. Wms. 34. (//() Lashbrook v. Cock, 2 iMer 70; 10 R. K. 144. (n) Ettricke v. Ellricke, 2 Ambl. 050. (o) Ltwen v. Dodd, C'ro. Eliz. 443. (p) I Atk. 580 ; 1 Vos. sen. 104. (q) Loveucres d. Mudge v. liliqht, Co\vp. 352. (r) .See2 Jarm. Wills, 1790 57., 0th ed. 458 OF PERSONAL ESTATE GENERALLY. No survivor- ship. who may have severed the jomt tenancy by assigning his moiety to the other. The right of survivorship, which springs from a unity of interest and title, has accordingly no place between owners in common [s). Severance of joint owner- ship in chattels personal. The joint ownership of a tangible chattel, or chose in possession, may be severed, in the same manner as a joint tenancy of real estate (t), by the assignment by one joint owner of his share ; after which the assignee will be owner in common of the share so assigned to him {u). And the same principle is generally apphcable with respect to choses in action, to which more than one person are jointly entitled ; that is to say, the assignment by one of them of his interest in the thing will deprive the others, in equity if not at law, of the benefit of survivorship therein {x). Thus if A. owe 20Z. to B. and C. jointly, and B. assign his share of the debt to D., C. and D. will thenceforth be each entitled in equity to 101., part of the debt (y). It is, however, doubtful whether part only of a debt can be assigned at law under the Judicature Act of 1873 (z). So if stock or shares be standing in the names of A. and B. jointly, an assignment by A. of his interest therein to C. will in equity operate as a severance of the joint ownership and constitute B. and C. owners in com- mon (a) : but A. and B., and the survivor of them, will remain entitled to the stock or shares at law until the same shall be duly transferred, by the proper legal means of transfer, half into B.'s name ed. (s) Litt. sect. 321. (t) WiUiams, R. P. 140, 21st (u) Litt. ss. 319—321. (x) See Williams v. Hensvian, IJ. & H. 546 ; Be Butler's Trusts 38 Ch. D. 286, 292 ; Be Wilks, 1891, 3 Ch. 59 ; Be Hewett, 1894, 1 Ch. 362, 367. (y) Watkinson v. Hudson, 4 L. J. 0. S. Ch. 213 ; Taylor v. London and County Bank, 1901, 2 Ch. 231, 237, 256. {z) Durham \. Bobertson, 1898 2 Q. B. 765, 774 ; Jones v. Humphreys, 1902, 1 K. B. 10, 14 ; ante, pp. 39, 40, and n. {d). (a) Burnahy v. Equitable Be- versionary Interest Society, 28 Ch. D. 416. OF JOINT OWNERSHIP AND JOINT LIABILITY. 459 and half into C.'s {b). Where several persons are Joint benefit jointly entitled to the benefit of a contract, they ^^ ^ ^oi^tTact. may also be and usually are under obligations to be performed or observed on their part to the other contractor or contractors and to each other (c). In such case any one of them can assign over, in equity at least, his share of the benefit of the con- tract, that is to say, of the profit to be derived there- from : but no disposition that he can make of his interest in the contract will affect his own liability thereunder or deprive any other contractor of any right against him, or other benefit conferred by the agreement (d). If therefore it should have been an express or implied term of the contract that the benefit of the obligation incurred to some of the contractors jointly should survive, one of them could not, by the assignment of his interest, deprive the others of this advantage. The same law is well Assignment illustrated in the case of the assignment of a share °^ ^ f!,^l\"^ o a partnership. in a partnership, which is really the conveyance of the assigning partner's beneficial interest in the contract of partnership (e), and under which the assignee obtains, during the continuance of the partnership, a qualified interest only in the actual assets of the firm, taking them subject to all the other partners' rights in respect thereof under the agreement of partnership (/). (h) Ante, pp. '.i\~>, 310, 324, the management or administra- 325, 329, 338. tion of the partnership, or to (c) Ante. pp. 172, 173, 181. require any accounts of the part- {d) Ante, pp. 199 — 201. nership transactions, or to in- (e) Cassels v. Stewart, (5 App. spect the partnership books, but Cas. (54, 74, 75, 78. entitles the assignee onlj- to {/) By the Partnership Act, receive the share of profits to 1890, stat. 53 & 54 Vict. c. 39, which the assigning partner s. 31, an assignment by any would otherwi-se be entitled, and partner of his share in the part- the assignee must accept the nership, either absolute or Ijy account of profits agreed to by way of mortgage or redeemable the partners. But in case of a charge, does not, as against the dissolution of the partnership, other partners, entitle the as- whether as respects all the part- signee, during the continuance of ners or as respects the assigning the partnership, to interfere in partner, the assignee is entitled 460 OF PERSONAL ESTATE GENERALLY. Joint liability. Judgment against or release of one discharges all. Discharge by bankruptcy. Connected with the subject of joint ownership is that of joint hability. Two or more persons may be jointly Kable to the same debt or demand. In a joint bond, the obhgors, according to the usual form, bound themselves, their heirs, executors and administrators jointly ; and in a joint covenant, they, in like manner, covenanted for themselves, their heirs, executors, and administrators jointly. For reasons already given (g), there is now no necessity for the express mention of the heirs, executors, or administrators of the persons to be jointly bound by any covenant, or bond under seal ; and such instruments are now constantly drawn without naming them. In every case of joint liability, each is liable for the whole debt {h), yet they are all, like joint owners, considered as one person. They should accordingly all be sued together during their joint hves (i) ; for if an action be brought and judgment obtained against one only, the others will be discharged, though the judgment remain unsatisfied (k). So a release to one of them will discharge them all (1). But, as we have seen, the order of discharge of a bankrupt will not release any person who at the date of the to receive the share of the part- nership assets to which the assigning partner is entitled as bet\\een himself and the other partners, and, for the purpose of ascertaining that share, to an account as from the date of the dissolution. See Watts v. Dris- coU, 1901, 1 Ch. 294; Re Gar- wood's Trusts, 1903, 1 Ch. 23»). {g) Ante, pp. 236, 237. (h) 1 Barn. & Aid. 35. (i) 1 \^'ms. Saund. 291 b, n. (4) ; Kendall v. Hamilton, 4 App. Cas. 504, 515, 516, 542—544. (k) King v. Hoare, 13 M. & W. 494 ; Kendall v. Hamilton, 4 App. Cas. 504 ; Hammond v. Schofield, 1891, 1 Q. B. 453 ; McLeod v. Poiver, 1898, 2 Ch. 295 ; see Wegg Prosser v. Evans, 1895, 1 Q. B. 108. The rule is the same in every case of joint UabiUty, in tort as \^■ell as in contract, 13 M. & W. 504 — 506 ; Brinsmeud v. Harrison, L. R. 7 C. P. 547 ; but it is subject to an exception in the case of the absence beyond seas of any one jointly lia))le with the person against \\hom judgment has been obtained ; see post. Part IV. {I) 2 Rol. Abr. 412 (C4), pi. 4 ; Clayton v. Kynaston, 3 Salk. 574 ; 2 Wms. Saund. 47 gg. n. (1); Warwick v. Richardson, 14 Sim. 281. But a covenant not to sue one of several joint debtors or tort-feasors will not discharge the others ; Hidton v. Eyre, 6 Taunt. 289 ; 16 R. R. 619 ; Duck V. Mayeu, 1892, 2 Q. B. 511. OF JOINT OWNERSHIP AND JOINT LIABILITY. 461 receiving order was a partner or co -trustee with the bankrupt, or was jointly bound, or had made any joint contract with him (m). Tlie law as to barring the Hability of one of several joint contractors under the Statutes of Limitations is explained in a subse- quent chapter (n). If one liable Jointly with others be sued for the whole debt or demand, he will be entitled, as a rule, to have the others added as co-defendants to the action (o). Judgment against two or more jointly may be executed against all or any one of them (/)). And if one joint debtor pays the whole debt, he will be entitled in equity to con- tribution from the others in equal shares {q) : but there is no right of contribution as between persons jointly liable, whether in damages or on a judgment, for a tort wilfully or negligently committed (r). After the decease of any one joint debtor the sur- vivors or survivor of them may still be sued for the whole debt, as though the deceased had no share in it (s), and the estate of the deceased will be discharged from all liability both at law and in equity {t). So if a judgment be obtained against two or more jointly, and one of them die, the estate (m) Stat. 46 & 47 Vict. c. r^2, s. 30, sub-s. 4, replacing 32 & 33 Vict. c. 71, s. 50 ; 24 & 25 \i(t. c. 134, s. 103; 12 & 13 Vict. c. 106, s. 200 ; 5 & (J Vict. c. 122, 8. 37 ; and 6 Geo. IV. c. 16, s. 121 ; ante, p. 298. (h) Post. Part \y. (o) Pillcy V. Rohinso)), 20 Q. B. D. 155 ; see Wilsov d- Co. v. Bnlmrre.s d- Co., 1893, 1 Q. B. 422 ; Kohinson v. (Ici.scl, 1804, 2 Q. B. 685. (p) Ahhot V. Smith, 2 W. Bl. 947. 949. {q) Bering v. Earl of Winchel- sea, 2 Bo.s. & Pul. 270 ; 1 White feTudor, L. C. Eq. ; 1 R. R. 41. See atite, p. 247. (r) Merryweather v. Ni.ran, 8 T. R. 186 ; 16 R. R. 810 ; The Englishman and The Australia, Discharge by Statute of Limitations. Contribution. After the decease of one joint debtor the survivor solely liable. 1895, P. 212 ; see Adamson v. Jarvis, 4 Bing. 66, 72 ; 29 R. R. 503 ; Beits v. (llhJiins, 2 A. & E. 57 ; Palmer v. Wick, Ac, Co., 1894, A. C. 318; Pollock on Torts. 191, 5th ed. ; The Frank- laml, 1901, P. 161. A trustee jointly lial)le with others for a breach of trust, may, as a rule, olitaiii contiibution from the others ; ('liiUinqu-orth v. Cham- bers, 1 S96. 1 Ch'. ()85 ; Rohimon v. Harkin, IS9(), 2 Ch. 415. (a-) liirhards v. Ileallier, 1 B. & Aid. 29 ; Read v. Price, 1909, 1 K. B. 577, 2 K. B. 724. (/) Richardson v. Ilorton, 6 Beav. 185 ; Wilmer v. Curreti, 2 ])e (J. & S. 347 ; Crosslei/ v. Dob- so)i, 2 Dc (J. & S. 486 ; Other v. hvson, 3 Drew. 177. 462 OF PERSONAL ESTATE GENERALLY. of the survivor or survivors, Avhether real or personal will be exclusively liable to be taken in execution (u). Joint and several liability. Form of a joint and several bond. Form of a joint and several covenant. A liability, however, may be both joint and several at the same time ; and, as such a hability is more beneficial to the creditor, it is more usual than a liability which is simply joint. In such cases the intention to create a several as well as a joint Uabihty should be clearly expressed (x). A joint and several bond by two persons ran in this form : — " for which payment to be [well and truly] made, we bind ourselves, and each of us, [and the heirs, executors and administrators of us and each of us,] jointly and severally ; " or if there were a larger number of obhgors, say five, the better form was : " for which payment to be [well and truly] made, we bind ourselves, and each of us, and any two, three, or four of us, [and the heirs, executors and adminis- trators of us, and each of us, and of any two, three, or four of us,] jointly and severally." But now, as we have seen (y), express mention of heirs, executors and administrators is unnecessary ; and the words enclosed within brackets in the forms given above may be and are usually omitted. In the case of a joint and several bond thus worded, an action may be brought against all the obhgors, or against any one, two, three or four of them whom the obhgee may select ; otherwise he must have sued either all of them jointly, or any one of them singly (z). A joint and several covenant was usually in this form : — " And the said A. B. and C. D. do hereby, for themselves [their heirs, executors and (m) 3 Rep. 14 b. Smarte v. Edsun, 1 Lev. 30; 2 Wms. Saund. 51. Formerly the real estate of the deceased, having been bound from the date of the judgment, was liable to contri- bute equally with the real estate of the survivors ; see stats. 27 & 28 Vict. c. 112 ; 63 & 64 Vict, c. 26 ; WilUams, R. P. 270—275, 21st ed (x) See White v. Tyndall, 13 App. Cas. 263. (y) Ante, pp. 236, 237. (z) Buller, J., Streatfield v. Halliday, 3 T. Rep. 782. OF JOINT OWNERSHIP AND JOINT LIABILITY. 463 administrators] jointly, and each of them doth hereby for himself respectively, [and for his respec- tive heirs, executors and administrators,] covenant," &c. ; or if there were more than two covenantors the better form was, for the reason also given, " And the said A. B., C. D., E. F. and G. H., do hereby, for themselves [their heirs, executors and administrators] jointly, and any two or three of them, do hereby, for themselves [their heirs, execu- tors and administrators] jointly, and each of them doth hereby for himself respectively [and for his respective heirs, executors and administrators] covenant," &c. The words enclosed within brackets may be and are now generally omitted, for the reasons already given {a). In all cases of joint and several habOity, each party is individually hable, and may be sued alone for the whole debt (6), or, if the creditor please, he may sue them all jointly. In consequence of the joint habihty, a release of Release of one of the debtors will discharge them all ; and, °°''" as they are all discharged, the creditor vnll thence- forth be unable even to sue any of them severally (c). As, however, the several liability is distinct from the joint, it is competent to the creditor, in releasing one of the debtors, expressly to reserve his remedy against the others ; and in this case the remaining debtors will continue severally hable (d). tSo he Covenant not may covenant with one of the debtors never to sue *" ^"^ °^^ him ; and in such a case lie will retain his remedy against the others severally (e). On account of the several habihty, the estate of a person who has (a) Ante, pp. 236, 237. 1 Ch. 20. (b) McCkeane v. Gyles (No. 2), (rl) Ex parte Gifford, 6 Ves. 1902, I Ch. 91L 807; 6 R. R. 53 ; Thompsons. (c) 2 Rol. Abr. 412 (G), pi. 5 ; Lack, 3 C. B. 540 ; Keardey v. Clayton v. Kijnaston, 2 Salk. 574 ; Cole, 16 M. & W. 136 ; Price v. Nicholson v. Revill, 4 A. k E. Barker, 4 E. & B. 760 ; Willis v. 683 ; Evans v. Brcmridrjp, 2 K. & De Ca-'^tro, 4 C. B. N. S. 216. J. 174 ; 8 De G., M. & G. 100 ; Be (e) Utn, v. Kynaston, 2 Salk, E. W. A., 1901, 2 K. B. 642 ; cf. 575 ; 2 Wms. Saund. 48, n. (1); Edwards v. Hood Burrs, 1905, see ante, p. 460, n. (/). 464 OF PERSONAL ESTATE GENERALLY. become jomtly and severally bound is not discharged by his decease in the lifetime of his co-debtors, but still remains liable to the entire debt as respects the creditor, and to a proportion of it as respects the surviving co-debtors. Alternative liability. Where there is an alternative, as distinguished from a joint or a cumulative several liability — for instance, where A. is entitled at his election to sue either B. or C. to recover the same debt — judgment against either debtor precludes the creditor from suing the other of them (/). Liability of partners. Dormant partner. An exception to the general rules as to joint habihty {g) occurs in the case of the liabihty of partners. During the partners' lives, their liability for debts incurred by the partnership is joint only (h): unless, of course, they should have contracted severally as well as jointly. Accordingly they ought all to be joined as defendants to an action for recovering any such debt {i). But a dormant partner, whose name may or may not be known, may either be joined or not at the pleasure of the creditor {k), unless the contract be under seal, in which case those only can be sued on it who have sealed and delivered it. A dormant partner caimot, however, be sued after judgment has been obtained against the active partners {I). Upon the death of one of several partners, the surviving partners become liable at law for all partnership debts previously incurred, as in any other case of joint (/) Scarf V. Jardine, 7 App. Cas. 345 ; Morel v. Westmorland, 1904, A. C. IL (g) Ante, pp. 460—462. h) Kendall v. Hamilton, 3 C. P. D. 403 ; 4 App. Cas. 504. {i) See Rice v. Shute, 5 Burr. 2 '11 1 Wms. Saund. 291 b, n. (4) ; Kendall v. Hamilton, 4 App. Cas. 504, 515, 516, 542— 544. {k) De Mautort v. Saunders, 1 B. & Ad. 398 ; Beckham v. Drake 9 M. & W. 79 ; 11 M. & W. 315, {I) Kendall v. Haynilton, vbi s^ip. ; ante, p. 460. partner. OF JOINT OWNERSHIP AND JOINT LIABILITY. 465 liability (m). But, as the whole beneficial interest in the assets of the partnership does not accrue to the survivors, but the executors or administrators of the deceased partner are entitled in equity to his share {n), so also in equity the estate of the deceased Liability in partner is not discharged from liabihties incurred by est"atJof the partnership before his death (o). For in equity deceased the hability of partners for partnership debts is, for the purposes of the satisfaction of such debts out of the estate of a deceased partner, considered as several as well as joint (p). On the death of a partner, therefore, his estate will be Hable in equity to all the partnership debts incurred previous to his decease (q) ; and the creditors may, if they please, resort in the first instance to the estate of. the deceased, leaving it to his representatives to recover from the surviving partners their share of the debts (r). But the equitable remedy so given to partnership creditors against the estate of a deceased partner has always been qualified by the application of the rule in bankruptcy, next stated ; in accordance with which the separate creditors of the deceased partner must first be paid in full out of his estate, before its apphcation to the payment of any of the debts of the partnership (s). (rn) Richards v. Heather, i B. (r) Wilkinson v. Henderson, 1 & Aid. 29 ; Bere.iord v. Brown- My. & K. 582 ; Braithimite v. ing, 1 Ch. D. 30, 3() ; see ante, Britain, 1 Keen, 20(3 ; Thorpe v. p. 461. Jackson, 2 You. & Coll. 553 ; (n) Ante, p. 454. Way v. Basset, 5 Hare, 55. (o) Kendall v. Hamilton, 3 (,s) See 6'n/y v. Chisicell, 9 C. P. D. 403, 408 ; 4 App. Cas. Ves. 118 ; 7 R.K. 151 ; Brown v. 504, 517, 538, 539 ; Be Hodyson, Weatherby, 12 Sim. 6, 10 ; Bidg- 31 Ch. D. 177. way v. Ckire, 19 Boav. Ill; (p) See James, L.J., Beresford WhiUingstall v. Graver, 10 \V. R. V. Browning, 1 Ch. D. 30, 34 ; 53 ; Lodge v. Pritchurd, 4 Giff. Kendall v. Hamilton, 3 C. P. U, 294 ; 1 De (J.. J. & S. GIO ; stat. 403, 40G— 410 ; 4 App. Cas. 504. 53 & 54 Viet. e. 39, s. 9. The 517, 520, 521, 53(). 537 — 539, rule is of course the same if the 545 ; Be Hodgson, 31 Ch. D. 177. estate of a deceased partner be (q) Devaynes v. Noble, 1 Me. admini.stered in bankruptcy ; 529, 563 ; 2 lluss. & My. 495 ; ante, p. 302. Stat. 53 & 54 Vict. c. 39, s. 9. W.P.P. 30 466 OP PERSONAL ESTATE GENERALLY. Bankruptcy of a partner- ship. Joint and several debts. In the case of the bankruptcy of a partnership (t), the rule which has always been followed in the pay- ment of the debts is, that the joint assets of the firm are in the first place liable to the partnership debts ; and that the separate estate of each partner is in the first place liable to his separate debts, which must be paid in full out of such separate estate, before any of it can be applied towards payment of the debts of the partnership (u). It is also held that no partner can prove against the firm in competition with other creditors of the firm {x). If a receiving order is made against one partner of a firm, any creditor to whom that partner is indebted jointly with the other partners of the firm, or any of them, may prove his debt for the purpose of voting at any meeting of creditors, and shall be entitled to vote thereat (y). But where one partner of a firm is adjudged bankrupt, a creditor to whom the bankrupt is indebted jointly with the other partners of the firm, or any of them, shall not receive any dividend out of the separate property of the bank- rupt until all the separate creditors have received (t) Any proceedings under the Bankruptcy Act, 1883, may be taken by or against partners in the name of the firm. And a receiving order may be made against a firm, and will operate as if it were a receiving order made against each of the part- ners. But no order of adjudica- tion shall be made against a firm in the firm name ; but it shall be made against the partners indi- vidually. Any creditor whose debt is sufficient to entitle him to present a bankruptcy petition agamst all the partners of a firm, may present a petition against any one or more partners of a firm without including the others. See Stat. 46 & 47 Vict. c. 52, ss. 115, 110 ; Bankruptcv Rules, 1886, Nos. 250—264; n),te, pp. 272—276. {u) Ex parte Ellon, 3 Yes. 238, 241 ; 3 R. R. 84 ; Ex parte Ken- sington, 14 Ves. 447 ; 9 R. R. 325 ; Ex parte Peake, 2 Rose, 54 ; Ex parte Harris, 1 Mad. 583 ; 16 R. R. 266 ; Ex parte Janson, 3 Mad. 229 ; 18 R. R. 221 ; Re Plummer, 1 Phil. 56 ; Ex parte Kennedy, 2 De G., M. & G. 228 ; Ex parte Topping, 11 Jur. N. S. 210 ; Stat. 46 & 47 Vict. c. 52, s. 40, sub-s. 3 ; Re Head, 1894, 1 Q. B. 638. But the rule does not apply where there is no joint estate ; when the separate and partnership debts rank equally ; Re Budgett, 1894, 2 Ch. 557. As to fraud, see Read v. Bailey, 3 App. Cas. 94. (.c) Nanson v. Gordon, 1 App. Cas. 195 ; Ex parte Blytke, 16 Ch. D. 620. (y) Stat. 46 & 47 Vict. c. 52, First Schedule, rule 13. OF JOINT OWNERSHIP AND JOINT LIABILITY. 467 the full amount of their respective debts (z). Under the old bankrupt law, if any creditor had a joint and several security, which would enable him, at law, to sue any partner severally, he might, at his option, prove his debt against the separate estate of any such partner instead of against the firm jointly {a) ; but he could not prove against both together (6). But now if a debtor was at the date of the receiving order hable in respect of distinct contracts as a sole contractor and also as a member of a firm, the circumstance that the sole contractor is also one of the joint contractors shall not prevent proof in respect of the contracts against the properties respectively liable thereon (c). The rule that the joint assets of the firm are in the first place liable to the partnership debts, applies equally where there has been a change in the partnership previous to the bankruptcy. The stock handed over to the new firm is primarily liable to all the debts incurred by them ; and the creditors of the old firm must first have recourse to such assets, if any, as may still belong to the old firm, and cannot touch the property of the new partnership till all its creditors have been fully paid {d). The addition or with- drawal of a partner to or from a firm in diificulties may thus occasion serious detriment to its creditors. {z) Stat 46 & 47 Vict. c. 52, parte Honey, L. R. 7 Ch. 178; s. 59, subs. 1. ,See/?e VonHafen, Ex parte Stone, L. R. 8 Ch. 914. 19 Sol. J. 241, docidod under the This cnaetincnt extends to lia- Bankruptcy Act, 1809. bility tlirough breach of trust or (o) Ex parte Hay, 15 Yes. 4. other fichiciary relationship rest- (b) Ex parte lievan, 10 Ves. ing on contract, hut the old rule 107; Ex parte Husbands, 2 Glyn against double proof remains in & Jam. 4. all cases to which the Act does (c) Stat. 4(5 & 47 Vict. c. ^^2. not ajjply ; lie iMarfadi/an, 1908, Second Schedule, rule 18, ap[ily- 2 K. \i. 817; lie Kent County ing the same rule to cases where (Jas, d-c, Co., Ld., 1913, 1 Ch. 92. the debtor is liable in respect of (d) Ex parte Freeman, Buck, distinct contracts as a member of 471; Ex parte Fry, 1 Glyn & two or more distinct firms com- .lam. 9(i ; Ex parte Jansoji, 3 posed in whole or in i)art of the Mad. 229; 18 R. R. 221 ; Ex same individuals ; and reijlaeing parte Sprague, 4 De G., M. & G. 32 & 33 Vict. c. 71, s. 37 ; Ex 866. 30—2 468 OF PERSONAL ESTATE GENERALLY. Dormant partner. It has been decided that the share of a dormant partner in the assets of the partnership is not goods in the order or disposition of the acting partner with the consent of the true owner thereof, so as to pass to the trustee for the creditors, on tlie bankruptcy of the acting partner, as part of the bankrupt's separate estate (e). But, if two or more persons become hable as partners, and one of them permit goods, which are his separate property, to remain in the reputed ownership of the firm, such goods are liable to be treated as part of the joint estate, in the event of the bankruptcy of the firm (/). Every partner liable for debts of the firm. Ostensible partner. Retii-ing partner. As we have seen (g), when two or more persons enter into partnership, each is hable, jointly with the other or others, for all the debts of the firm. This liability is incident to tlie relation of partner- ship, and is necessarily incurred whenever it is estabhshed, as a fact, that any particular persons are partners in business {h). But a man may also incur liability for the debts of a partnership by holding himself out as a partner in the firm, although he be not entitled to receive any share of the profits {i). Thus if a person allow his name to be used as one of a firm (k), or to be painted over the door of a shop (l), he will be hable to the debts of the firm ; for credit may thus be given to the firm on the strength of his character as a solvent person. On the same principle, if a person have once been (e) Reynolds v. Boivley, L. R. 2 Q. B. 474 ; ante, pp. ill, 253, 281. (/) Re Rowland and Crank- shaw, L. R. 1 Ch. 421 ; Ex parte Hayman, Re Pulsford, 8 Ch. D. 11. See ante, p. 112. (g) Ante, p. 464 ; Pooley v. Driver, 5 Ch. D. 458. (h) S. C, 5 Ch. D. 458, 472 ; see Holme v. Hammond, L. R. 7 Ex. 218, 226, 227, 233. (i) Waugh v. Carver, 2 H. Bl. 235, 242 ; 14 R. R. 845 ; Ji'/i-er V. Humble, 16 East, 109, 174; Stat. 53 & 54 Vict. c. 39, s. 14. (k) Parkin v. Carrulhers, 3 Esp. 248 ; 6 R. R. 828 ; Young v Axtell, cited 2 H. Black. 242 ; 14 R. R. 851, n. ; Ex parte Hayman, Re Pulsford, 8 Ch. D. 11 ; see Re Eraser, 1892, 2 Q. B. 633. (l) Williams v. Keats, 2 Stark. 290 ; 19 R. R. 723. See M'lver V. Humble, 16 East, 169, 171, 175. OF JOINT OWNERSHIP AND JOINT LIABILITY. 469 known to be a partner in the firm (m), his UabiUty to its debts will continue after his withdrawment, unless he takes proper means to inform the creditors that he has ceased to be a partner (n). But the Deceased circumstance of the name of a deceased partner ^^^ ^^^' remaining in the firm will not render his estate liable to the debts of the survivors (o). And if a Executor trader direct by his will that his trade shall be carried ^^^^^'"^ °" on by his executor, the executor who ostensibly carries on the trade will be liable for the debts he may thereby incur as fully as if he were carrying on the trade for his own benefit (p) ; but so much only of the estate of the testator will be liable to such debts as he may have directed to be employed in the business (g). The rest of the testator's estate is held to be exempt on the ground of the great inconvenience which would arise from holding it liable after its distribution amongst the legatees. Under the Partnership Act, 1890 (r), a writ of Execution execution shall not issue against any partnership or partner!" property except on a judgment against the firm (m) Evans v. Drummond, 4 Esp. 89 ; Brooke v. Enderby, 2 Brod. & Bing. 70 ; 4 Moore, 501 ; 22 R. R. 653 ; Carter v. Whalley, 1 B. & Ad. 11 ; 35 R. R. 199. (n) Graham v. Hope, Pcake 154; 3 R. R. 071 ; Godfrey v. Turnbull, 1 Esp. 571 ; 3 R. R. 072, n. ; M'lver v. Humble, 10 East, 109 ; Re Hodgson, 31 Ch. D. 177, 184; Re Tucker, 1894, 3 Ch. 429 ; stat. 53 & 54 Vict. c. 39 s. 17 (2). See Scarf v. Jardine, 7 App. Cas. 345. As to the con- tinuing liability of a retiring part- ner for debts incurred before his retirement, sec Rouse v. Bradford Banking Co., 1894, 2 Ch. 32, A. C. 680. (o) Devaynes v. Noble, Hovl- ton's Case, 1 Mer. 529, 010, 023 ; 15 R. R. 151 ; VuUiamy v. Noble, 3 Mer. 614 ; 17 R. R. 143 ; Web- ster V. Webster, 3 Swanst. 490, n. ; 19 R. R. 258 ; stat. 53 & 54 Vict. c. 39, s. 14 (2). (p) 10 Ves. 119. And at law he will be liable, though his name do not appear ; Wightman v. Toivnroe, 1 Man. & Selw. 412 ; 14 R. R. 475. {q) Ex parte Garland, 10 Ves. 110; 7 R. R. 352; Ex parte Richardson, Buck. 202 ; Cutlnish, V. Cutbush, 1 Beav. 184; Re Bultcrfidd, 11 .hirist, 955 ; Kirk- man V. Booth, 11 Beav. 273 M'Neillie v. Acton, 4 De Gex M. & C 744 ; Re Johnson, Shear man v. Robinson, 15 Ch. D. 548 Eraser v. Murdoch, 6 App. Cas. 855, 800, 874, 875. (r) 8tat. 53 & 54 Vict. c. 39, s. 23 (1). As to suing a firm, see R. S. C, Order XLVIIIa. 470 OF PERSONAL ESTATE GENERALLY. LiabUities of ])artnership incurred by an agreement securing all its advan- tages. Rules for determining existence of partnership. But any judgment creditor of a partner may obtain an order charging that partner's interest in the partner- ship property and profits with payment of the amount of the judgment debt and interest, and the appoint- ment of a receiver of his share of the profits (s) The law will not permit a man to secure for him- self all the advantages of partnership without incurring its habilities {t). If therefore several persons enter into an agreement, that some specified business shall be carried on by some or one of them on behalf of all of them under arrangements which secure to all of them all the advantages of partner- ship, they will all incur the liabilities of partners, although the business be carried on in the name or names of the acting partner or partners alone {u). In such cases the question to be determined is, whether the effect of the whole agreement is to constitute a partnership between the parties thereto {x). And if this be so, a declaration inserted in the agreement, that certain parties thereto shall not incur the liabilities of partners, will not enable them to avoid the legal consequences of the relation into which they have entered (y). The rules for determining the existence of partnership are codified as follows by the Partnership Act, 1890 (2) : — (Sect. 2.) In determining whether a partnership does or does not exist, regard shall be had to the following rules : — (1) Joint tenancy, tenancy in common, joint property, (s) Stat. 53 & 54 Vict. c. 39, s. 23 (2) ; Brown Ch. D. 65L bus, cited by Lord Loughborough (a) Be Dillon, 44 Ch. D. 76 ; in Tate v. Hilbert, 2 Yes. jun. Cain v. Moon, 1890, 2 Q. B. 283 ; 119; 2 R. R. 175; Walter v. Hudson v. Spencer, 1910, 2 Ch. Hodge, 2 Swanst. 99. 285. (r) Seeanie, pp. 28, 31,C9, 70; (b) Re Weston, 1902, 1 Ch. Ililler V. Miller, 3 P. Wms. 356, 680 ; Be Andrews, 1902, 2 Ch. 394. 358. (c) Heivitt v. Kaye, L. R. 6 (s) Ante, pp. 435 sq. Eq. 198 ; Be Beaumont, 1902, \t) Snellgrove v. Baily, 3 Atk. 1 Ch. 889 ; cf. Bromley v. Brun- 214 ; and see Boiitts v. Ellis, 4 ton, L. R. 4Eq. 275 ; ante, p. 436. De G., M. & a. 249 ; Moore v. In Bolls v. Bearce, 5 Ch. D. 730, Barton, 4 De G. & Sm. 517. it was held that, where the (u) JJuffleld V. Elwes, 1 Bhgh. donor's cheque payable to order N. S. 497. is negotiated in his lifetime, the (.t) Witt V. Amis, 1 B. «& S. 109. gift is complete, but it seems {y) Clement v. Cheesman, 27 questionable whether in that case Ch. D. 631. the gift was not really made i^iter (z) Veal V. Veal, 27 Beav. 303 ; vivos. Banl-in v. Weguelin, 27 Beav. {d) Wood v. Turner, 2 Ves. sen. 309 ; Be Mead, Austin v. Mead, 431 ; BrysonY. Brownrigg, 9 Yes. OP A WILL. 483 must also be made in expectation of the donor's decease (e), and must be on condition that the gift be absohite only on that event (/). It is no objection, however, that the donation is clogged with a trust to be performed by the donee (g). A donation mortis causa is revocable by the donor during his hfe (h), and after his decease it is subject to his debts {i), to estate duty (k), and also to legacy duty {I). The mode of operation of a will of personalty is Appointment essentially different from the operation of a will of ^^ executor "^ . . lormerly lands in this respect, that m strictness the appoint- essential. ment of an executor was formerly essential to a will of personalty (w) ; and, at the present day, the usual and proper method is to appoint an executor as to the personal estate (n) ; whereas under a devise of landed property, the lands formerly passed at once to the devisee, and the intervention of an executor was quite unnecessary and inapplicable (o). The executor of a will of personal estate becomes Executor entitled, from the moment of the death of the entitled to all ' personal testator, to all his personal property (p), which after property of testator. 1 ; Bunn v. MarJcJiam, 7 Taunt. 4.34. 224 ; 17 R. R. 497 ; Ruddell v. [k) Ante, p. 443 ; Re Hudson, Dobree, 10 Sim. 244 ; Fnrquharmn Ifll 1, 1 Ch. 206. V. Cave, 2 Coll. 356 ; Powell v. (I) Stat. 36 Geo. III. c. 52. s. 7 ; Hellicar, 26 Beav. 261. The 8 & 9 Vict. c. 76, s. 4. delivery may precede the gift ; (m) Wentworth, Exors. 3, 4, Cain V. Moon, 1896, 2 Q. B. 14th ed. ; 2 Black. Comm. 503. 283. (n) If by a will, the duties of (e) Tate v. Hilhert, 2 Vcs. jun. an executor arc imposed on some 111 ; 4 Bro. C. C. 286 ; 2 R. R. i)erson not expressly appointed 175. to that office, he is an executor (/) Edwards v. Jones, 1 My. & according to the tenor of the will ; Cr. 226 ; Staniland v. Wilhtf, 3 1 Wms. Exors. 239, 7th ed. ; 16.5, Mac. & G. 664. 10th ed. (g) Blount v. Burrow, 4 Bro. (o) Ee Barden, L. R. 1 P. & M. C. C. 72 ; Hills V. Hills. 8 M. & 325. W. 401 ; cf. Solicitor to the (/j) Go. Litt. .388 a ; Com. Dig. Treasury v. Lewis, 1900, 2 Ch. tit. I'.iens (C) ; 1 Wms. Exors. 812. 629, 650 sr/., 7th ed. ; 467, 485 sq., (h) 7 Taunt. 232. 10th ed. ; a7ite, p. 3. (i) 1 P. Wms. 406 ; 2 Ves. sen. 31—2 484 OF PERSONAL ESTATE GENERALLY. Executor's assent. payment of the debts of the deceased he is bound to apply according to the directions of the will. Thus if the testator should specifically bequeath any part of his personal property, the property so bequeathed will not belong absolutely to the legatee until the executor has assented to the bequest ; and this assent must not be given until the executor is satisfied that there is sufficient to pay the debts of the deceased without having recourse to the property so specifically given (g). Under the Land Transfer Act, 1897 (r), a testator's real estate now vests in his executor on his death as well as his personal property ; and the necessity for the executor's assent to any specific disposition made by the will is extended to the case of a devise of real estate. Administra- tor durante minor e cetate. Married woman executrix. If the testator should appoint as his sole executor an infant under the age of twenty-one years, such infant will not be allowed to exercise his office during his minority ; but during this time the administration of the goods of the deceased will be granted to the guardian of the infant, or to such other person as the Court may think fit (s). Such person is called an administrator durante ininore cetate [t). Formerly, if a married woman were appointed an executrix, she could not accept the office without the consent of her husband {u) ; and having accepted it with his consent, she was unable, without his concurrence, to perform any act ot administration which might be to his prejudice ; whilst he, on the other hand, might release debts (q) Toller's Executors, bk. 3, s. 2 ; 2 Wms. Exors. 1372, 7th ed. ; 1101, 10th ed. ; Be Culver- house, 1896, 2 Ch. 251 ; Be West, 1909, 2 Ch. 180. (r) Stat. 60 & 61 Vict. c. 65, ss. 1 — 3 ; ante, p. 2, n. (i) ; Williams, R. P. 224—226, 259, 21st ed. (s) Stat. 38 Geo. III. c. 87, s. 6. (t) 1 Wms. Exors. 479, 7th ed. ; 386, 10th ed. As to the powers of an admmistrator durante minore cetate, see Re Cope, 16 Ch. D. 49. (h) 1 Wms. Exors. 232, 7th ed. ; 160, 10th ed. OF A WILL. 485 due to the deceased, or make assignment of the deceased's personal estate, without his wife's con- currence {x) ; for, according to the interpretation placed upon the general rule of law that a husband and wife are but one person {y), the power, and with it the responsibility, were vested in the husband. Under the Married Women's Property Act, 1882 (z), a married woman is now capable of accepting the office of executrix mthout the consent of her husband, and she was expressly empowered by that Act to dispose as if she were a, feme sole of any stock, shares or debentures which might devolve upon her as executrix. This Act did not, however, invest a married woman with any express or general capacity to dispose, without her husband's concurrence, of any other property to which she might be entitled as executrix of a Mdll {a). But by the Married Women's Property Act, 1907 (6), a married woman is (.(•) Wins. Exors. 965, 7th ocl. ; 5 Rep. 27 b. (y) See Williams, R. P. 30G, 21st ed. (2) Stat. 4.1 & 4(5 Vict. c. 75, ss. 1 (sub-s. 2), 18, 24; Threlfall V. Wilson, 8 P. D. 18 ; Ee Ayres, lb. 168. (n) See Re Harkness and All- sopp's Contract, 1896, 2 C'h. 358, deciding that the Act did not confer on married women a general capacity to dis[)()se of property enabling thtun to dis- pose of property to which they were entitled as trustees ; 2 Wms. V. & P. 918—921, 2nd ed. : post, Pt. III. Ch. V. (6) Stat. 7 Edw. VIl. c. 18. s. 1 (1). Sect. 1 (2) coiilirms dispositions of such i)roi)erty made by the wife alotic after the 31st DecemlHT, 18S2 (the com- mencement of the Act of 1882), with a saving as to cases where any title or right had been acquired through or with the concurrence of the husband. The questions raised by the word- ing of this Act in the case of a married woman trustee are dis- cussed in 2 Wms. V. & P. 922— 924, 2nd ed. ; where it is sub- mitted that, unless the confirm- ing provisions of this Act are to be rendered entirely nugatory, the Act must be construed as giving to married women trustees a power to dispose of all such estate or interest in the trust property as is vested at law in their husbands. .4 fortiori, it appears that a wife can under this Act dispose alone of all chattels, whether real or personal, vested in her as executrix ; for the common law regarded all such chattels as vested in the wife en autre droit, and made no gift of th(^m to the husband, although it empowered him to disj)ose thereof without her con- currence ; see Co. Litt. 251 a ; Thruslniit d. Levick v. Coppin, 2 W. Bl. 801 ; Farr v. Newman, 4 T. R. ()2I ; 2 Wms. Exors. 965, 966, 7th ed. 486 OF PERSONAL ESTATE GENERALLY. Executor of executor entitled to be executor of testator. able, without her husband, to dispose of or join in disposing of real or personal property held by her solely or jointly with any other person as trustee or personal representative in like manner as if she were a feme sole. By the common law, a married woman, being an executrix, might make a will without the consent of her husband, confined to the personal estate of which she was executrix (c) ; and the executor of her will so made became the executor of the original testator. The capacity of a married woman in this respect is in no way diminished by the provisions of the Act of 1882 (d). For it is a general rule, that if any executor should die before having completely administered the estate of his testator, the executor appointed by the will of such executor will be entitled to complete the distribu- tion of the estate of the former testator (e). Any one of The testator, however, may and usually does, mav^ncrform^ appoint more than one person his executors. In acts of ad- this case the law regards all the co-executors as one mniistration. ijj(;[iyi(j|^ial persou ; and consequently any one of the executors of full age may, during the hfe of liis companions, perform, without their concurrence, all the ordinary acts of administration, such as giving receipts, maldng payments, and selling and assigning All must join the property (/). But all the executors, infants included, must join in bringing actions respecting the estate (g). If, therefore, the testator appoint a person indebted to him as his executor, or one of his executors, this appointment will operate at law in brinyin action (c) 1 Wms. Exors. 53, 7th cd. ; 40, 10th ed. (d) See Wniiams' Conveyanc- ing Statutes, 4.50, 4.51, 455. (e) 2 Black. Comm. 506. And it seems that he is bound to do so ; Brooke v. Haynes, L. R. 6 Eq. 25. (/) Shep. Touch. 484. (fif) 2 Wms. Exors. 1867, 7th ed. ; 1515, 10th ed. An ejectment was an exception, as any one exe- cutor might demise the entirety of the testator's leasehold land ; Doe d. Stace v. Wheeler, 15 M. & W. 623. The old proceedings in ejectment were abolished in 1852 ; WilUams, R. P. 65, n. (g), 21st ed. OF A WILL. 487 as a release of the debt (h). For the debt is a chose Appointment ill action, and a man cannot either solely or con- executon jointly with others bring an action against himself. In equity, however, an executor who was indebted to the testator is bound to account for his debt to the estate of the testator {i). On the decease of Survivorship . ji /V2 . J ji 1 of office of any co-executor, the omce survives to those who executor. remain (k) ; and after the decease of all of them, the executor of the will of the last survivor will be entitled to act as executor of their testator (l). If any person not duly authorised should inter- Executor de meddle with the goods of the testator, or do any ^^^^°^*- other act relating to the office of executor, he thereby becomes an executor of his own wrong, or, as it is called in law French, an executor de son tort. Such an executor is hable to the same demands from the creditors of the deceased as if he had been regularly appointed ; but like a regular executor he is not hable beyond the amount of the assets of the testator which have come to his hands. The chief difference Executor's between such an executor and one who has been "°^!^ °^ retainer. duly appointed is this, that an executor de son tort is not allowed to derive any benefit from his own wrongful intermeddhng ; whereas a regularly appointed executor, if a creditor of the deceased, may la^vfully retain his own. debt out of the legal assets in preference to all other debts of the same degree (m). If the insolvent estate of a deceased (k) Weutworth, Exors. 73, vested in two or more (executors, 14th cd. ; Freakley v. Fox, 9 B. sec Williams' (Conveyancing & C. 130; 32 R. R. 605; Re Statutes, 194—198. Applebee, 1891, 3 Ch. 422. {I) 1 Wms. Exors. 25G, 7th (i) Bac. Abr. Exors. (A), 10; cd. ; 182, 10th ed. Sivimona v. Gutter idge, 13 Vcs. (m) Wms. Exors. 257, 269, 264; iJe i?0Mr«e, 1906, 1 Ch. 697 ; 1039, 1047, 7th ed. ; 183, 193, Re Pink, 1912, 2 Ch. 528 ; cf. Re 785, 795, 10th cd. ; sec ante, pp. Applebee, 1891, 3 Ch. 422 ; ante, 220—222 ; Re Compton, 30 Ch. p. 258, n. (z). D. 15; Re Wells, 45 Ch. D. .569; (k) As to the survivorship of Re Gilbert, 1898, 1 Q. B. 282 ; cf. powers and trusts given to or Re Hayward, 1901, 1 Ch. 221 ; 488 OF PERSONAL ESTATE GENERALIiY. debtor be administered by the Court, either in the Chancery Division or in bankruptcy, the executor will not lose the priority given to him by his right of retainer (n). A will of personalty must be proved The most strildng difference between a will of personal estate and a will of lands yet remains to be noticed, A \vill of lands has always operated and still operates as a mode of conveyance requiring no extrinsic sanction to render it available as a docu- ment of title : although it is now provided by the Land Transfer Act, 1897 (o), that probate may be granted in respect of real estate only, where there is no personal estate. But a will of personal estate has always required to be proved. This probate of the will was formerly required to be made in some ecclesiastical court {p) : but after the year 1857 the Be Marvin, 1005, 2 Ch. 490 ; Table opposite p. 244. ' Wilson V. ]Yilson, 1911, 1 K. B. (o) Stat. (>0 & Gl Vict. c. 65, 327. s. I (3). (n) Ante, pp. 222, 243, n. (2) ; (f) The jurisdiction of the ecclesiastical courts over wiUs of personal estate was of ancient origin. So early as the time of Glanville, who wrote in the reign of Henry II., the ecclesiastical courts had acquired an exclusive right to determine on the validity of a will or the bequest of a legacy ; Glanv. lib. 7, cc. 6, 7 ; see P. & M. Hist. Eng. LaAV, ii. 312 s^., 330, 339. And the right of the C^hurch to interfere in testa- mentary matters continued until the year 1858. During this period, a will was required to be proved in the court of the bishop or ordinary in whose diocese the testator dwelt, and within whose jurisdiction the personal efi'ects of the testator consequently lay. But if there were effects to the value of SI., called bona notabilia, in two distmct dioceses or jurisdictions within the same province, either of Canterbury or York, the will was required to be proved in the Prerogative Court of the archbishop of that province ; 1 Wms. Exors. 289, 7th ed. ; 209, 10th ed. ; for an account of the rise of the archbishop's jurisdiction, see Gent. Mag., New Series, Vol. 12, p. 582. If there were personal effects within two provinces, the will must have been proved in each province, either in the Prerogative Court, or in some court of inferior jurisdiction ; observmg, as to each province, the same rule as would have applied had the testator had no projocrty elsewhere ; Second Report of Real Property C-ommissioners, 67. If probate were granted by a bishop, or other inferior judge, in a case where the deceased had goods to the value of 5Z. in any other diocese in the same province, such probate was absolutely void ; but probate granted by an archbishop, m a case where the deceased had not bona notabilia in divers dioceses, was voidable only, and not absolutely void ; Wentworth, Exors. 110, 14th ed. ; Lysons v. Barroto, 2 Bing. N. C. OF A WILL. 489 jurisdiction of all the ecclesiastical courts over wills was entirely abolished, and a court was estabhshed called the Court of Probate, with a principal registry Court of in London and district registries throughout the J^J^o^ate- Idngdom, in which all wills of personal estate were required to be proved {q). At the commencement of the Judicature Acts in 1875, the jurisdiction of the Court of Probate was transferred to the High Court of Justice, and its exercise assigned to the Probate, Divorce and Admiralty Division (r). And since then all wills have to be proved either in the principal or in some district probate registry of the High Court {s). Upon probate, the will itself is deposited under the control of the Court (t) ; and a copy of the will, which is given by the Court to the executor on proving, denominated the probate copy, is the The probate only proper evidence of the right of the executor ^^^ °"^y proDcr to intermeddle with the personal estate of his tes- evidence, tator (w). Before probate, however, the executor Acts of may perform all the ordinary acts of administration, before m-o- such as receiving and giving receipts for debts due bate. to the testator, paying the debts owing by the testator, and selling and assigning any part of the personal estate. But when evidence is required of his right to intermeddle, the probate is the only vahd proof ; without it, therefore, no action or 486. But the Court of Probate Act, 1857, rendered valid all previous grants of probates which were void or voidable by reason only that the courts from which they were obtained had not jurisdiction to make such grants, except where the same had been already litigated. Stat. 20 & 21 Vict. c. 77, s. 86; Me Tucker, 2 Sw. & Trist. 123; 9 W. R. 420. (q) Stat. 20 & 21 Vict. c. 77, even if he should not have had amcndi^l by 21 & 22 Vict. c. 9.'5. any fixed ])lacc of abode within (/•) ^'l «/''," pp. 160. 224, n. (/). that district; ,stat. 20 & 21 (*•) Any will may )>e ])rovcath, a fixed ed. place of abode within any (lis- {>() Re.r v. Netherseal, 4 T. R. trict, his will may hv ])rovc(l in 260; 1 Wins. Exors. 202, 7th cd.; the registry of (hat district ; and 213, 10th ed. the grant so made will be efifectual 490 OF PERSONAL ESTATE GENERALLY. suit can be maintained, although proceedings may be commenced before, and carried up to the point where the evidence is required (x). Evidence required on probate. Probate in common form ; The evidence required for the proof of a will varies according to the form of the attestation, and also according to the circumstance of the validity of the will being or not being disputed. The usual and proper form of attestation to a will expresses that the formalities required by the Wills Act {y) have been complied with ; thus, " Signed and declared by the above-named A. B., the testator, as and for his last will and testament, in the presence of us, both present at the same time, who, at his request, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses." When the attestation is in this form, and the validity of the will is not disputed, it is proved by the simple oath of the executor, that he believes the will to be the true last will and testament of the deceased. But as such a form of the attestation clause is not essential to the validity of the will {z), wills are sometimes informally made without any clause of attestation, or with a clause which does not express that the required formalities have been complied with. When this occurs, an affidavit in addition to the executor's oath, is required from one of the subscribing witnesses, that the will was executed in compliance with the statute (a). Probate in either of the above modes is termed probate in commo7i form. But if the validity of the will should be disputed, or any dispute should be anticipated (x) 1 Wms. Exors. 302, 7th ed. ; 220, 10th ed. ; Stuart v. Burroives, 1 Drury, 265, 274 ; Pinney v. Hurst, 6 Ch. D. 98. (y) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 9 ; ante, p. 478. (2) Stat. 7 WiU. IV. & 1 Vict. c. 26, s. 9 ; ante, p. 478. («) 1 Wms. Exors. 330, 7th ed. ; 239, 10th cd. ; Me Peverett, 1902, P. 205. The practice of the Court of Probate was generally the same as the old practice of the Prerogative Court of the Ai'chbishop of Canterbury ; stat. 20 & 21 Vict. c. 77, s. 29. OF A WILL. 491 by the executor, the will is proved in solemn form in solemn per testes (6). In this case both the witnesses are sworn and examined, and such other evidence taken as the circumstances require, in the presence of the widow and next of kin of the testator, and all others pretending to have any interest, who are cited to be present to see the proceedings. When a will has once been proved in this form it is finally established, and the executor cannot be compelled to prove it any more ; but when a will has been proved merely in common form, the executor may, at any time within thirty years, be compelled by any party interested to prove it per testes in solemn form (c). The contentious jurisdiction with respect to the grant and revocation of probates of wills has been transferred to the county courts in cases where the personalty is under the value of 2001. and County the deceased was not at the time of his death ^°^^^^- beneficially entitled to any real estate of the value of SOOl. {d). Any person appointed executor, either alone or Renunciation with others, may decline the office, if he has not «* Probate. intermeddled with the estate ; and on his signifying such refusal to the Court, he is said to renounce probate of the will (e). Thereupon, by the Court of Probate Act, 1857, his rights in respect of the executorship shall wholly cease, and the represen- tation to the testator and the administration of the effects shall, without any further renunciation, go, devolve and be committed in like mamier as if the person renouncing had not been appointed execu- tor (/). Renunciation of probate may, however, by (6) See Spicer v. Spicer, 1899, Phillim. 577 ; Lomj v. Symcs, 3 P. 38. Hagg. 77L (c) 1 Wnis. E.xors. 334, 7th {/) Stat. 20 & 21 Vict. c. 77, ed. ; 242, 10th od. s. 79. By stat. 21 & 22 Vict. (rf) Stat. 21 & 22 Vict. c. 95, c. 95, s. IG, the like result is to s. 10. follow whenever an executor (e) Jadcson v. Wallington, 3 named in a will survives the 492 OF PERSONAL. ESTATE GENERALLY. leave of IJic Court to be given in a proper case, be subsequently retracted {g). Estate duty. As we liave seen (li), under the Finance Act, 1894 [i), all property passing on the death of any person, whether by his will or otherwise, is now sub- ject, Avith some exceptions [k), to the payment of estate duty. And where the property is settled by the will, a further estate duty, called settlement estate duty, is leviable thereon [1). The estate duty leviable in respect of all personal property, of which the deceased person was competent to dispose (m) at his death, is payable by his executor or adminis- trator on delivering the affidavit necessary to ob- tain probate or administration {n). Before this Act took effect, a stamp duty, commonly called Probate duty, probate duty, was imposed on the grant of the probate of a will or of letters of administration in respect of the value of the deceased person's personal estate situate within the jurisdiction of the Court granting the probate or administration (o). Thus effects situate abroad were not chargeable with probate duty (^9). Under the Finance Act, testator, but dies without having 1302, 2nd ed. taken probate, and whenev^er an (/) Ante, p. 446. executor named in a will is cited (w) See ayite, p. 443. to take probate, and does not («) Stat. 57 & 58 Vict. c. 30, appear to such citation ; Re s. 6 (2). Bouchereit, 1908, 1 Ch. 180. As (o) Stat. 44 Vict. c. 12, ss. to the previous law, see 1 Wms. 26 — 37, replacing 43 Vict. c. 14, Exors. 274, 283 sq., 7th ed. s. 9 ; and 55 Geo. III. c. 184, (g) Re Stiles, 1898, P. 12. amended bv 5 & 6 Vict. c. 79, (h) Ante, p. 443. s. 23, and 22 & 23 Vict. c. 36, (/) Stat. 57 & 58 Vict. c. 30, s. 1 ; 1 Wms. Exors. 595, 617, s. 1. 7th ed. (fc) Among these are the fol- (p) A.-G. v. Hope, 2 CI. & Fin. lowing : — the jiroperty of com- 84 ; 37 R. R. 29. In order to mon seamen, marines or soldiers, obtain a grant of probate or who are slain or die in the King's administratinn from the Court of service, sums under 1001. i)ay- Probate or High Court in Eng- able without requiring represen- land, probate duty was, as a rule, tation ; and estates of the prin- payable only on effects situate cipal value of not more than 100?.,- m England. But if the deceased stat. 57 & 58 Vict. c. 30, ss. 8(1), person had effects situate in 17 ; 2 Wms. V. & P. 1297— Scotland or Ireland, and it was OF A WILL. 493 1894 (q), however, estate duty is leviable, not only on property situate anywhere in the United King- dom (r), but also on property passing on the death when situate out of the United Kingdom, if under the previous law legacy or succession duty is pay- able in respect thereof (s), or would be so but for the relationship of the person to whom it passes (t). Penalties are imposed by statute on any person who shaU take possession of and in any manner administer any part of the personal estate and effects of any person deceased without obtaining probate or administration within six calendar months after the death {u). When the will has been desired to obtain in England a grant, of which the effect might be extended to Scotland or Ireland, i)robate duty was charge- able on all liLs personal and moveable effects in the United Kingdom. The effect of pro- bates and letters of adminis- tration obtained in England or Ireland, and of confirmations, as they are called, of executors obtained in Scotland, may be extended to the other i)arts of the United Kingdom, upon being produced to the proj)er Court and duly sealed or certified ; see stats. 20 & 21 Vict. c. 79, ss. 94, 95; 21 & 22 Vict. c. 56, ss. 12 — 15 ; 21 & 22 Vict. c. 95, s. 29 ; 22 & 23 Vict. c. 31, s. 25 ; 39 & 40 Vict. c. 70, ss. 41, 42. Stat. 55 Vict. c. 0, provides for the recognition in the United King- dom of probates and letters of administration granted in any British possession, or by a British court in a foreign country, see rules thereunder, AV. N. 18th March, 1893. {q) Stat. 57 & 58 Vict. c. 30, s. 2 (2) ; see sect. 7 (2—4). (r) Wiiians v. A.-G., 1910, A. V. 27. (s) lie Manchester, 1912, 1 Ch. 540. Legacy duty is payable on proved it is the duty of Payment of funeral and all chattels personal, or moveable property, wherever situate, of a person dying domiciled in the United Kingdom ; A.-G. v. Napier, Ex. 217 ; 2 Wms. Exors. 1(337—1043, 7th ed. ; 1846—1851, 10th ed. Succes- sion duty Ls payable on all chat- tels personal, or moveable pro- perty, wherever situate, vested m trustees amenable to the juris- diction of an English court by a settlement made by any person, wherever domiciled, in such form that the trusts or pro- visions are enforceable and the propert}' recoverable bj" the beneficiaries in an English court ; and the like law prevails in Ireland and Scotland ; A.-G. v. Campbell, L. 11. 5 H. L. 524; Li/ull V. Lyall, L. R. 15 Eq. 1 ; Re ('i.), 1. (k) Stat. 29 Car. II. c. 3, s. 4 ; ante, p. 183 ; 1 Wms. Saund. 210, n. (1); 211, n. (2). 32—2 600 OF PERSONAL ESTATE GENERALLY. admission that he has assets of the testator sufficient for the payment of the debts (l). Legacy duty. On the payment or deUvery of any legacy, whether payable out of the testator's own personal estate, or out of any personal estate over which he had a power of appointment (m), a receipt must be given by the legatee, which is charged with a duty, called legacy duty, on the amount or value of the legacy (w). Legacy duty is also charged upon bequests of the residue, or any share of the residue, of a testator's personal or moveable estate (o). The amount of legacy duty varies according to the degree of relationship which the legatee bore to the deceased ; and the rates at which the duty is charged Leasehold are stated in the note {p). By the Succession Duty property. {I) Horsley v. C'haloner, 2 Ves. ever, liable to succession duty ; sen. 83 ; see ante, p. 220, and ante, p. 441. u. (q). (n) Stat. 36 Geo. IlL c. 52, (//;.) Stat. 8 & 9 Vict. c. 76, s. 4, s. 27. The legacy duty on amended by the effect of 51 Vict. annuities for lives is fixed by c. 8, s. 21 (2). But no sum of tables given in the Succession money, which by any marriage Duty Act, and is payable by four settlement is subjected to any equal payments to be made limited power of appointment to successively on completing each or for the benefit of any jierson or of the first four years' payments persons therein specially named of the annuity ; stats. 36 Geo. or described as the object or III. c. 52, s. 8 ; 16 & 17 Vict, objects of such power, or to or for c. 57, s. 31. the benefit of the issue of any (o) Stat. 55 Geo. III. c. 184, such persons or person, is liable s. 2, and schedule, part iii., to legacy duty under the will in amended by the effect of 51 Vict, which such sum is appointed or c. 8, s. 21 (2). As to legacy duty apportioned in exercise of such on successive interests in residue, limited power ; stat. 8 & 9 Vict. see Re Duppa, 1912, 2 Ch. 445. c. 76, s. 4. Such sums are, how- (p) (1) To a child, parent or any other lineal issue or ancestor, or husband or wife, II. per cent., subject to the exemptions mentioned below. (2) To a brother or sister, or descendant of a brother or sister, 51. (originally 31.) per cent. (3) To a brother or sister of the father or mother, or descendant of such brother or sister, lOl. (originally 51.) per cent. (4) To a brother or sister of the grandfather or grandmother, or descendant of such brother or sister, 101. (originally 61.) per cent. (5) To a person in any other degree of collateral consanguinity, or to a stranger in blood, 101. per cent. Succession duty (mite, p. 441) is charged at the same rates ; see OF A WILL. Act, 1854, leasehold property, although personal estate, is exemr.ted. from legacy duty, and is charged in lieu thereof with succession duty, calculated stats. 55 Geo. III. c. 184, schedule, part iii. ; 16 & 17 Vict. c. 51, s. 10 ; 10 Edw. VII. c. 8, s. 58. A person chargeable with legacy or succes- sion duty, who shall have been married to any wife or husband of nearer consanguinity than himself or herself to the testator or pre- decessor, pays the same rate of duty only as such wife or husband would have been chargeable with ; stat. 16 & 17 Vict. c. 51, s. 11. Gifts by will of property on trust for any charitable or public pur- poses are subject to successioji duty at the rate of lOl. per cent, on the amount or principal value thereof; stat. 10 & 17 Vict. c. 51, s. 16. Legacy or succession duty at the rate of 1 jier cent, as between lineal issue and ancestor was not jjayable in respect of any property on the value of which either probate or account dutj' {ante, pp. 492, 443, n. (c) ) had been paid under the Inland Revenue Act, 1881 (44 Vict. c. 12), s. 41, or in respect of property chargeable with estate duty under the Finance Act, 1894 (57 & 58 Vict. c. 30), ss. 1, 24, and First Schedule {ante, pp. 443, 491), on any death occurring after the 1st August, 1894. And legacy or succession duty was not payable as between husband and wife on any death occurring before the 30th April, 1909 ; stats. 55 Geo. III. c. 184, schedule, part iii. ; 16 & 17 Vict. c. 51, s. 18 ; 10 Edw. VII. c. 8, s. 58, sub-ss. 2—4. But by the Finance Act, 1910 (10 Edw. VII. c. 8), s. 58, sub-ss. 2—4, legacy and succession duty at the rate of 1 per cent, were re-imposed as between lineal issue and ancestor and imposed as between husband and wife, subject to exemption in the cases following : — • (a) Where the principal value of the property passing on the death of the deceased in respect of which estate duty is payable (other than property in which the deceased never had an interest, and property of which the deceased never was competent to dispose and which on his death passes to per- sons other than the husband or wife or a lineal ancestor or descendant of the deceased) does not exceed 15,000L", what- ever may be the value of the legacy or succession ; (b) Where the amount or value of the legacy or succession together with any other legacies or successions derived by the same person from the testator, intestate or predecessor does not exceed 1,000Z., whatever may be the principal value of such property ; (c) When; the person taking the legacy or succession is the widow or a child under the age of twenty-one years of the testator, intestate or predecessor, and the amount or value of the l(!gacy or succession together with any other legacies or successions derived by the .same person from the testator, intestate or predecessor, does not exceed 2,000/., whatever may be the j)rincipal value of such pro|)crty. By subs. 3, in this section, the ex[)ression " deceased " means, as to legacy duty, the testator or intestate, and in the case of a succession arising through devolution by law, the person on whose death the succession arises, and in the case of a succession arising under a disposition, the person on whose death the first succession theriMmder arises. And by sub-s. 4, this section shall take elTect as to legacy ; ante, p. 429. 304. (u) Stat. 43 Vict. c. 14, s. 12. (z) Brown v. Allen, 1 Vern. (.»;) Roper on Legacies, c. 3 ; 31 ; Hintony. Pinlce, 1 P. WniB. Gordon V. Duff, 28 Jieav. 519. 539 ; Sleech v. Thormgton, 2 Ves. (y) Kirby v. Potter, 4 Ves. sen. 560. 504 OF PERSONAL ESTATE GENERALLY, Demonstra- tive legacy. General legacy. in his lifetime. Thus, in the instances given above, if the testator should part with the plate, or sell the stock in his hfetime, the legacy will be adeemed, and the legatee will lose all benefit (a). A demon- strative legacy is a gift by mil of a certain sum directed to be paid out of a specific fund. Thus, " I bequeath to A. B. the sum of 501. sterling, to be paid out of the sum of lOOl. Consols now standing in my name at the Bank of England," is a demon- strative legacy. Such a legacy is not liable to ademption by the act of the testator in liis hfetime ; for it is considered to be the testator's intention that the legatee should at all events have the legacy : but that it should, if possible, be paid out of the fund he has pointed out. If, therefore, the testator in this case should sell the 100?. Consols in his hfetime, the 50/. will still be payable to the legatee out of the general assets (b). A demonstra- tive legacy is accordingly more beneficial to the legatee than a specific legacy. And it is also more beneficial than a legacy which is merely general ; for being payable out of a specific fund, it is not, while that fund exists, hable to abatement with the general legacies (c). A general legacy is one payable only out of the general assets of the testator, and is hable to abatement in case of a deficiency of such assets to pay the testator's debts and other legacies. A bequest to A. of lOOl. sterling is a general legacy ; so is a bequest of 1001. Consols, without referring to any particular stock to which the testator may be entitled (d). A bequest of a mournuig ring of the value of 10/. is also a general legacy, no specific (a) Ashburner v. M'Gnire, 2 Bro. C. C. 108 ; Harrisoyi v. Jackson. 7 Ch. D. 339 ; Re Slater, 1907, 1 Ch. 665 ; cf. Re Clifford, 1912, 1 Ch. 29 ; Re Leeming, ib. 828. (b) Roberts v. 150 ; Attwater Pocock, 4 Ves. V. Attwater, 18 Beav. 330. (c) Acton V. Acton, 1 Meriv. 178 ; Livesay v. Redfern, 2 Y. & C. 90. (d) Wilson V. Brovmsmith, 9 Yes. 180; Re Gray, 36 Ch. D. 205 ; see, however, Townsend v. Martin, 7 Hare, 471. OF A WILL. 505 ring of the testator's being referred to (e). In the two last cases, the executor would be bound to set apart or buy the stock, or purchase the ring, for the legatee out of the general assets of the testator, supposing them sufficient for the purpose ; and should there be a deficiency, the amoimt of the stock, or the value of the ring to be purchased, would abate proportionably. Legacies given by husbands Dower, to their Avives in consideration of their releasing their dower are not liable to abatement with the other general legacies (/). But this doctrine has not been extended to legacies given in consideration of the legatee's releasing a debt due to him from the testator {g), or a claim against a third party (h). When a legacy is bequeathed by a testator to his Satisfaction creditor, it is considered to be a satisfaction of the i*e„acie^ ^ debt, if the legacy be equal to or greater than the amount of the debt {i). But if it be less than the debt (j), or payable at a different time (k), or of a different nature from the debt [1), or if the debt be contracted subsequently to the date of the will (m), or if the will contain an express direction for pay- ment of debts and legacies (n), or even of debts only (o), the legacy will not be a satisfaction. The (e) 1 Roper on Legacies, c. 3, Low, 3 K. & J. 318 ; Re Ratten- s. 2. bury, 190(5, 1 Ch. 007 ; see Re if) Burridcje v. Bradul, 1 P. Fletcher, 38 Ch. D. 373. VVms. 127 ; Norcoll v. Gordon, 14 {j) Graham v. Graham, 1 Ves. (Sim. 258. But this rule docs sen. 202. not apply where the wife's dower {k) Nkholls v. Judson, 2 Atk. is barred by her husband's 300 ; Hales v. Darrall, 3 Beav. declaration, or his disposition of 324 ; Re Horlock, 1895, 1 Ch. 516. his land by his will ; sec stat. 3 & (/) Alleijn v. Allei/n, 2 Vcs. 4Will. IV". c. 105, s. 12; Roper v. sen. SI ;' Bartletl v. Gillard, 3 Roper, 3 Ch. D. 714 ; Re Green- Russ. 149 ; 27 R. R. 45; Four- tvood, 1892, 2 Ch. 295 ; Williams, driji v. Gowdey, 3 M. & K. 383, R. P. 320, 327, 21st ed. 409. {y)ReWedmore,l{)01,2Ch.2TJ. (m)Cranmer's Case, 2 Salk. (h) Re Whitehead, 1913, 2 Ch 56. 508. (i) Fowler v. Fowler, 3 P. (n) Richardson v. Greese, 3 Wms. 353 ; Fourdrln v. Gowdey, Atk. 05 ; Hassell v. Hawkins, 4 3 M. & K. 383, 409 ; 2 Roper on Drew. 408. Legacies, c. 17, s. 1 ; Edmonds v. (o) Re Huish, 43 Ch. D. 260. 506 OF PERSONAL ESTATE GENERALLY. leaning of the Courts is against the doctrine of the satisfaction of debts by legacies, a doctrine wliich seems to have been estabhshed on rather questionable Satisfaction groimds. When, however, a parent has under- por ions, ^g^i^gj^ ^Q pg^y g^ g^j^ Qf money to a child by way of portion, the inchnation of the Courts is against double portions ; and a legacy to such a child is accordingly regarded as a satisfaction of the portion, either in part or in whole, notwithstanding such legacy may be less than the portion, or payable at a different period (p). A bequest of the residue, or of a share in the residue of the testator's estate, will also be considered as a satisfaction pro tanto {q). The presumption of satisfaction is indeed so strong, that it is difhcult to say what circumstances of variation between the portion and the legacy will be sufficient to entitle the child to both (r). Parol evidence of the intention of the testator is, however, admissible to rebut this presumption (s). And according to the same doctrine of an inclination against double portions, if a parent who has made a will bequeathing a legacy or share of residue to a child, afterwards make over in his lifetime a sum of money or other property to the child, the presump- tion is that this is an advancement, or an ademp- tion pro tanto of the amount bequeathed (t). This (^3) IlinchrUfjc v. HinchcUffe, is not presumed to be satisfied by 3 Ves. 51 G ; 4 R. R. 89 ; Weall a legacy of equal amount, unless V. Ricp, 2 Russ. & Myl. 251 ; 34 perhaps in the case of a portion ; R. R. 83. ' Hudson v. Spencer, 1910, 2 C'h. (q) Richnan v. Morgan, 2 B. 285. C. C. 394 ; Earl of Glencjall v. [s) Re Tussaud's Estate, 9 C'h. Barnard, 1 Keen, 769 ; aiifirmcd, D. 372—375. 2 H. L. C. 131 ; Beckton v. Bar- (t) Montefiore v. Guedalla, 1 Ion, 27 Beav. 99, 106 ; Montefiore Ue G., F. & J. 93 ; Dawson v. V. (hiedaUa, 1 De Gex, F. & J. 93 ; Dawson, L. R. 4 Eq. 504 ; Nevin Coventry v. Chichester, L. R. 2 v. Drysdale, ib., 517 ; Cooper v. H. L. 71 ; Re Blundell, 1906, 2 Macdonald, L. R. 16 Eq. 258 ; Ch. 222. Leighton v. Leighton, L. R. 18 Eq. (r) See Re Tussaud's Estate, 458 ; Re Vickers, 37 Ch. D. 525 ; 9 Ch. I). 363 ; Montagu v. Earl Re Beddington, 1900, 1 Ch. 771 ; nf Sandwich, 32 Ch. I). 525. A sqc Re Jacques, 1903, 1 Ch. 2(i7 ; donatio mortis causd (ante, p. 481) Re Heather, 1906, 2 Ch. 230. This OF A WILL. 507 presumption may, however, be rebutted in the same manner as in the former case (ii). If property be made over to a child before a -vvill is executed, there is no presumption of the ademption of any benefit conferred by the will {x). The presumption against double portions exists in the case of a bequest by any one in loco jJarentis to a child as well as by a parent (y), but not in any other case (2;). Under a statute of George II., commonly called Mortmain the Mortmain Act {a), and divers amending statutes, of which the provisions were consolidated in the Mortmain and Charitable Uses Act, 1888 (b), every assurance of land, including any hereditaments, and any estate or interest therein, or of any personal estate to be laid out in the purchase of land, to or for the benefit of any charitable uses, was rendered void, save in a few special cases, unless made by deed, and otherwise in compliance with the con- ditions of the Acts. These enactments were held to prohibit the bequest for charitable purposes of personal estate in any degree savouring, as it is said, of the realty (c). There is, however, no law doctrine has also been applied in (h) Stat. 51 & 52 Vict. c. 42. th(! case of an appointment made (c) Thus it was decided that to a child by deed under a special monej^ secured on mortgage of power subsequently to a similar land could not be left by will to apiK)intment by will to the same a charity ; A.-G. v. Meip-icL; 2 cliild ; Be PeeVs Heiilcm.ent,\Ql\, Ves. sen. 44 ; A.-G. v. GaldwrU, 2 (^h. 1()5. Amb. 0.35 ; Re Waits. 2i) Ch. D. (u) Kirk V. Eddowes, 3 Hare, 947 ; Relloylcs, 1911, I Ch. 179 ; 509; 7^, /y«ro/(, 1891, 2Ch. 482; nor could leasehold estates; Be. Scott, 1903, 1 Ch. 1. A.-G. v. Greaves, Amb. 155. It (x) Taylor v. Carlwrighf, L. was ultimately held that shares R. 14 Eq. 167, 176; Re Peacock's in cojupanies were not interests Estate , ib., 236 ; Leiqhton v. in land ; Myers v. PerUjal, 2 De /,f(>//(/o?t, L. R. 18Eq. 458. 4()6. (J., M. & G. 599; Edwards v. (y) See Powys v. Mansfidd, 3 Hall, G De G., M. & G. 74 ; My. & (!r. 359 ; Pyui v. Lockyer, Entwislle v. Davis, L. R. 4 Eq, 5 My. & Cr. 29 ; Camphell v. 272, excejit such shares as were Gampbell, L. R. 1 Eq. 383 ; real estate ; Howse v. Chapman, Fowkes V. Pascoe, L. R. 10 Ch. 4 Ves. 542 ; 4 R. R. 292 ; sec 343. avte, p. 327. Debentures or (z) Be Shields, \Q\2,\V\\.ri^\. bonds giving merely a charge (rt) Stat. 9 Geo. II. c. 36. upon the undertaking of some Acts. 508 OF PERSONAL ESTATE GENERALLY. which prevents the bequest of purely persoiical property to any amount for charitable purposes. In consequence of the effect of the Mortmain Acts, it was formerly necessary, in making a bequest to a charity, to direct that it should be paid out of such part of the testator's personal estate as he might lawfully bequeath for such a purpose. For if this precaution should have been neglected, the charitable legacies would fail in the proportion which the personal assets savouring of the realty might bear to those which were purely personal {d). But an Act of 1891 (e) has now removed the restric- tions placed by the Mortmain Acts on gifts for charitable purposes of money secured on land, or other personal estate arising from or connected with land. This Act further authorises the assurance of land by will to or for the benefit of any charitable use, providing, however, that land so assured must be sold (/). And under the same Act gifts by- will of personal estate to be laid out in the purchase of land to or for the benefit of any charitable use are no longer void ; but the property bequeathed is to be held by the charity as though there had been no direction to lay it out in the purchase of land (g). It has been held that, since the passing of the Act, a bequest to a charity of such part of a testator's estate as may by law be given for charitable pur- poses will pass the testator's real as well as his per- sonal estate (h). Here it may be noted, with regard company or public body but no Bcav. 581 ; and sec Robinson v. direct security upon any land Geldard, 3 Mac. & G. 735 ; Tem- were also held to be pure per- pest v. Tempest, 7 De G., M. & G. sonalty ; but not such deben- 470 ; Beaumont v. OUveira, L. K. tures or bonds as gave a direct 4 C'h. 309. charge on land ; see lie Parker, (e) Stat. 54 & 55 Vict. c. 73, 1891, 1 Ch. G82 ; lie Pichird, s. 3. 1894, 3 Ch. 704. (/) Sects. 5, 6 ; see Re Hume, (d) A.-G. V. Tyndall, 2 Eden, 1895, 1 Ch. 422. 207 ; S. C, 2 Amb. 614 ; Hohson (q) Sect. 7. V. Blackburn, 1 Keen, 273 ; Phil- (li) Re Bridger, 1894, 1 Ch. 297 ; anfhropic Society v. Kemp, 4 see Re Harris, 1912, 2 Ch. 241. OF A WILL. 509 to the bequest of money to be laid out in the pureliase of hereditaments, that a bequest of money to be laid out in building on land already in morsmain was held to be good {i) ; but if some land already in mortmaui were not distinctly referred to, a bequest of money for buildmg for any charitable pm-pose was void, as implying a direction for the pin-chase of land on which to build (A-). Under the present law it appears that in the latter case the bequest would not fail, but the money Avould have to be held by the charity as if no direction for its employment in building had been given. When a legacy is plainly devoted to charity, and is clear of the Mortmain Acts, but cannot or cannot imme- diately be devoted to the specific charity intended, the Court will give effect to it cy-prbs or as nearly as possible {I). Bequests which require some care are those to Gifts to iUe- illegitimate children. It is clear that a bequest to ^{j^j^*^^ the future illegitimate children of a particular man is void, as the Courts cannot enter into the inquiry which would be necessary to identify such children {m). A child prinid facie means a legiti- mate child ; a bastard is considered by the law as nullius films. Accordingly an illegitimate child can never take under a gift to children, unless it be clear, upon the terms of the will, or according to the state of facts at the makmg of it, that legitimate childi'en never could have taken (n). An illegiti- (/) Glubb V. A.-G., Amb. 373 ; George's Hospital, 6 H. L. C. 338. Champney v. Davy, 11 Ch. D. [l) Sinnett v. Herbert, L. R. 7 949. Ch. 232 ; Chamberlayjie v. Broc- (k) Pritchard v. Arbouin, 3 kett, L. R. 8 Ch. 206 ; Littledale Russ. 4.56 ; 27 R. R. 106 ; Smith v. Bickersfeth, 24 W. R. 507 ; 1 V. Oliver, 11 Beav. 481 ; In re .Jarm. Wills. 204 sq., 'Ah cd. Watmough''s Trusts, L. R. 8 Eq. (in) Wilkinson v. Adam, 1 V. 272 ; Pratt v. Harvey, L. R. 12 & H. 466 ; 12 R. R. 2.5.'5. Eq. 544 ; In re Cox, 7 Ch. D. («) Cartwriqht v. Vawdry, 5 204. And see Phil pott v. iSt. Vcs. 530 ; 5 R. R. 108 ; Godfrey 510 OF PERSONAL ESTATE GENERALLY. mate child, may, however, take under any gift in which he is sufficiently identified as the object of the testator's bounty. Thus, a bequest to the cliild of which a woman is now pregnant is good (o). And if illegitimate children have acquired the reputation of being the children of the testator or any other person, and it appear by necessary implication on the face of the will that such persons were intended in a bequest to children, they will be entitled, not on account of their being children, but on account of their reputation as such {p). Under such a bequest, it has been held that an illegitimate child en ventre sa mere at the date of the will (g), although not born till after the testator's death (r), can take, as well as children by reputation actually born at the date of the will. And it would seem that illegitimate children, who have acquired their reputation of children at the date of the testator's death, can take under such a bequest, although begotten after the date of the will {s). But it has been decided that an illegitimate cliild, both begotten and born after the death of the testator, cannot share in such a bequest, because V. Z'at'js, 6 Ves. 43 ; 5R. R. 204; Bean, L. R. 10 Eq. 160; Re Harris v. Lloyd, 1 T. & Russ. Humphries, Smith v. Millidge, 310 ; 24 R. R. 68 ; Bagley v. 24 Ch. D. 691 ; Re Bryon, 30 Ch. Mollard, 1 Russ. & M. 581 ; 32 D. 110 ; Re Haseldine, 31 Ch. D. R. R. 281 ; Dover v. Alexander, oil ; Re Horner, 37 Ch. D. 695 ; 2 Hare, 275; Re OverUlVs Trust, Re Harrison, 1894, 1 Ch. 561. 1 Sm. & Giff. 362 ; Paul v. The like rule applies in the case Children, L. R. 12 Eq. 16 ; Dorin of a settlement made by deed ; V. Dorin, L. R. 7 H. L. 568; Ebbern^r. Fowler, \m% I Ch.blS. Ellis V. Houstoun, 10 Ch. D. 236 ; (q) Occleston v. Fullalove, L. R. Re Bolton, 31 Ch. D. 542 ; Re 9 Ch. 147. Hall, 35 Ch. D. 551 ; and see Re (r) Crook v. Hill, 3 Ch. D. Eve, 1909, 1 Ch. 796. 773. (o) Gordon v. Gordon, I Meriv. (s) Occleston v. Fullalove, ubi 141 ; 15 R. R. 88. sup. ; Re Hastie's Trusts, 35 Ch. {p) Wilkinson v. Adam, 1 Ves. D. 728 ; Re Loveland, 1906, 1 Ch. & B. 422 ; 12 R. R. 255 ; Gill v. 542 ; but see Re Bolton, 31 Ch. Shelley. 2 Russ. & My. 336 ; 34 D. 542 ; Re Dm Rocket, 1901, 2 R. R. 106 ; Meredith v. Farr, 2 Ch. 441 ; and cf. Re Frogley, You. & CoU. 525 ; Hill v. Crook, 1905, P. 137. L. R. 6 H. L.;^265; Lepine v. OF A WILL. 511 to hold otherwise would be to encourage im- morahty (t). After payment of the testator's debts and legacies, Rights of the residue of his personal estate must be paid over le^atee"^"^ to the residuary legatee, if any, named in the will. A will of personal estate has always been considered as speaking from the death of the testator ; and it is now expressly enacted, that every wiU shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will {u). Hence it follows that all personal property acquired by the testator between the time of making his will and his decease will pass under it. If any legacy should lapse by the Lapso. death of the legatee in the testator's lifetime, or should fail from being contrary to law, it will fall into the residue, and belong to the residuary legatee. And a legacy will lapse by the death of the legatee in the testator's lifetime, although given to the legatee, his executors, administrators and assigns (x) ; for these words are merely inserted in analogy to the limitation of real estate to a man and his heirs. If a bequest be made to two or more as joint tenants, Joint tenants and one of them die in the Ufetime of the testator, his share will not lapse, but will survive to the others (y). But if the bequest be to two or more Tenants in in common, and one of them die in the testator's Hfetime, his share will lapse (z) ; unless the bequest Bequest to be made to a class, as to the children of A. in equal {t) Crook V. Hill, 3 Ch. I). 77.3 ; (//) Morlerj v. Bird, 3 Vcs. 628, see also Re Harrison, 1894, 1 Ch. 631 ; 4 R. R. 106. 561. (z) BcKjivHl V. Dry, 1 P. Wms. (m) Stat. 7 Will. IV. & 1 Vict. 700 ; Page v. Page, 2 P. Wms. 0. 26, s. 24. See Be Slater, 1907, 489 ; Barber v. Barber, 3 My. 1 Ch. 66,5. & Craig, 688 ; Bain v. Lescher, (x) Elliott V. Davenport, IP. 11 Sim. 397; Re Venn, 1904, Wms. 83. 2 Ch. 52. a class. 512 OF PERSONAL ESTATE GENERALLY, Legacies to children. Lapse of residue. shares, in which ease all who answer that description at the testator's decease (a), and also (if the period of distribution be postponed by the will) all who come into being before such period (6), will be entitled to divide the bequest amongst them. It is, however, provided by the Wills Act that where any person, being a child or other issue of the testa- tor, to whom any personal estate shall be bequeathed for any interest not determinable at or before the death of such person, shall die in the testator's lifetime leaving issue, and any such issue shall be hving at the death of the testator, such bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (c). The effect of this provision is curious. If the legatee had died im- mediately after the testator, leavhig a will, it is evident that the estate bequeathed to him would have passed under his will. It has been decided, therefore, that the will of the legatee shall, after his death, operate on the estate bequeathed to him in the same manner as if he had been living (d). This provision has been held to apply to a testa- mentary appointment under a general power of appointment (e), but to be inapplicable to a testa- mentary appointment under a power to appoint amongst the testator's children (/) ; and it does not extend to gifts to children or issue as a class, and not individually {g). If a bequest of residue, or (a) Viner v. Francis, 2 Cox, 190 ; 2 R. R. 29 ; Jarm. Wills, 431, 1664, 6th ed. ; Lee v. Pain, 4 Hare, 250. (6) Ayton v. Ayton, 1 Cox, 327; Jarm. Wills, 431, 1667, 6th ed. (c) Stat. 7 Wm. IV. & 1 Vict. c. 26, s. 33, which applies if there be any issue en ventre sa mere at the testator's death ; Re Griffith's Settlement, 1911, 1 Ch. 246. (d) Johnson v. Johnson, 3 Hare 157. Estate duty attaches ; Re Scott, 1901, 1 Q. B. 228. (e) Eccles v. C'heyne, 2 Kay & J. 676. (/) Griffiths v. Gale, 12 Sim. 354 ; Freeland v. Pearson, L. R. 3 Eq. 658 ; Holyland v. Leivin, 26 Ch. D. 266. (jr) Brownev. Hammond, John. OF A WILL. 5L3 of a share of residue, should lapse by the legatee's death in the testator's lifetime, the property be- queathed will, in the absence of any further disposi- tion thereof by the will (h), and subject to the effect of the above-mentioned provision of the Wills Act as to bequests to children or other issue, devolve as upon intestacy {i). If there were no residuary legatee, the residue of the testator's personal estate, after payment of debts and legacies, formerly belonged to the executor for his own benefit, unless a contrary intention appeared from his being left executor in trust (k), or from his having a legacy left him for his trouble (1), or from other circumstances (m). But by the Executors Act, 1830 (n), it is enacted that when any person shall die, having by will or codicil appointed any executor, such executor shall be deemed by Courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions (o), in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto {p), that the person so appointed executor was intended to take such residue beneficially. It has been held that this Act applies only where there is a bare appointment of executors without any gift to them of the testator's residuary personalty, so that resort 210; Re Harvey's Estate, 1893, 1 Ch. 567. (h) See Re Palmer, 1893, 3 Ch. 369 ; Re Parker, 1901, 1 Ch. 408. (i) Skrymsher v. Northcote, 1 Sw. .566; 18 R. R. 142; Re Venn, 1904, 2 Ch. .52 ; Re Roby, 1908, 1 Ch. 71. (k) Pring v. Pritig, 2 Vern. 99 ; Ba{jwell V. Dry, 1 P. Wms. 700. (I) Rachfield v. Careless, 2 P. Wms. 158. (m) Mullen v. Boioman, 1 Coll. W.P.P. Former right of executor to the residue. Executors Act. 1830. 197. See Re Bacon's Will, 31 Ch. D. 460. (7i) Stat. 11 Geo. IV. & 1 Will. IV. c. 40 ; see Re Lacy, 1899, 2 Ch. 149. (n) Tlie Statute of Distribu- tions is that under which the personal estate of any one dying intestate is distributed between his widow and next of liin ; see ante, p. 3, and next chapter. (p) Love V. Oaze, 8 Beav. 472 ; Harrison v. Harrison, 2 H. & M. 237. 33 514 OF PERSONAL ESTATE GENERALLY. has to be had to the imphcation of law to determine whether they are beneficially entitled to the residue ; and that a case where the residue is expressly bequeathed to the executors, either in trust or otherwise, is still regulated by the old law (g). It has also been decided that the Act has no apphcation where the testator leaves no next of kin ; in which case the executors may still be beneficially entitled according to the previous law (r). Alienation The law does not give any direct process of for debt. execution against an unpaid legacy or share of residue bequeathed to a judgment debtor : but the judgment creditor may obtain an order for the appointment of a receiver thereof by way of equitable execution (s). Such property vests, of course, in the legatee's trustee in bankruptcy (t). iq) Williams v. Arkle, L. R. 7 Tyrrell v. Painton, 1895, 1 Q. B. H. L. 606 ; Re Roby, 1908, 1 Ch. 202 ; Re Goudie, 1896, 2 Q. B. 71. 481 ; Re Anglesey, 1903, 2 Ch. (r) A.-G. V. Jefferys, 1908, 727 ; Ideal Bedding Co., Ld. v. A. C. 411. Holland, 1907, 2 Ch. 157; ante, (s) See Fuggle v. Bland, 11 p. 450. Q. B. D. 711 ; Re Potts, Ex parte (t) See ante, p. 280. Taylor, 1893, 1 Q. B. 648; ( 515 ) CHAPTER IV. OF INTESTACY, The Ecclesiastical Courts formerly had jurisdiction Jurisdiction not only over the wills of testators, but also over the t/c^ courts' goods of persons dying intestate. This jurisdiction, over goods though of long standing, appears to have been at persons.^ *^ first gradually acquired. In early times the clergy, being possessed of almost all the learning, appear to have been the principal framers of wills. The power they thus acquired was exercised for their own benefit, every man being expected, on making his will, after bequeathing to his lord his heriot, in the next place to remember the church (a). If, however, a man should have died intestate, without oppor- tunity of making this provision, the distribution of his goods devolved on the church, together with his friends, the lord first having taken his heriot (6). The wife and the children were entitled to their shares ; and that part of the goods which the intestate had power to dispose of by his will (called the portion of the deceased) was applied by the church in pios usus. This application to pious uses Pious uses, appears to have been as follows : in the first place, the bequest, which it was to be presumed the intes- tate would have made to the church, was retained, and the residue was then disposed of in paying the debts of the deceased, and distributed amongst his wife and children, his ])arents and their relatives. [a) Glanv. lib. 7, c. 5 ; Bract. 517., 354 sq. 60 a ; Fleta, lib. 2, c. 57 ; .soo [h) Bract. GO b ; Fleta, ubi P. & M. Hist. Eng. Law, ii. 329 supra. 33—2 516 OF PERSONAL ESTATE GENERALLY. That this was the case appears from the complaints which were made by the clergy of those days, of the interference of the temporal lords in cases of intestacy, whereby the distribution of the effects in the manner pointed out was prevented (c). The clergy themselves, however, do not appear to have been always free from blame ; for they are accused of having frequently taken the whole of the intes- tate's portion to themselves, making no distribution, or at least an undue one, amongst the creditors and relatives of the deceased (d) ; and in order to remedy this evil, it was enacted in the reign of Edward I., by one of the very few statutes then passed relating to personal estate (e), that the ordinary should be bound to answer the debts of an intestate, so far as his goods would extend, in the same manner as the executors would have been bounden if he had made a testament. The right of the creditor was thus clothed with a remedy ; for, under this statute, an action at law might be brought by the creditor against the ordinary for the payment of his debt (/) ; but the right of the relatives to the surplus still remained undefined. Adminis- The duty of administering intestate's effects was ^^ °'^' not, as may be supposed, usually performed by the bishops in j^erson. For this purpose they usually appointed an administrator ; but, as personal property rose in importance, it became desirable that this administrator should not be considered as the mere agent of the bishop, but should himself have a locus standi in the King's Courts. It was (c) Matthew Paris, 951, Addi- Gent. Mag. New Series, vol. ii. tamenta. 201, 204, 209 (Wats's 355,474. See also Dyke v. Wal- ed. London. 1640); Constitu- /orrf, 12 Jur. 839 ; 5 Moore P. C. tions of Boniface, Constitutiones 434. Provinciales, 20, at the end of (d) Fleta, lib. 2, e. 57, § 10; Lyndewood's Provinciale (Oxon. P. & M. Hist. Eng. Law, ii. 358. 1679), recited also in a Constitu- (e) Stat. 13 Edw. I. c. 19. tion of Archbishop Stratford (/) 1 Ro. Abr. 906 ; Bac. Abr. (Lynd. Prov. lib. 3, tit. 13). See Exors. (E). OF INTESTACY. 517 accordingly enacted by a statute of the reign of Edward III. (g), that where a man died intestate the ordinaries should depute the next and most lawful friends of the deceased to administer his goods, which persons so deputed should have action to demand and recover as executors the debts due to the deceased, to administer and dispend for the soul of the dead ; and should answer also, in the King's Courts, to others to whom the deceased was holden and bound, in the same manner as executors should answer. By a subsequent statute (h), ad- ministration might be granted to the widow of the deceased, or to the next of his kin, or to both, as by the discretion of the ordinary should be thought good. The widow was usually preferred to the next of kin in the grant of administration (i) ; and a joint grant was seldom made, so seldom, indeed, that the powers of co-administrators appear to be stiU a matter of doubt {k). In granting administra- tion to the next of kin, the Ecclesiastical Courts were guided by the right to the property to be administered (/). This right will be hereafter ex- plained. If none of the next of kin would take out administration, a creditor might by custom do so, on the ground that he could not be paid his debt until representation were made to the deceased (m) ; (g) 31 Edw. III. c. 11. grant with the next of km ; stat. (h) 21 Hen. Vlll. c. 5. (JO & Gl Vict. c. 65, s. 2 (4). And (j) Webb V. Needham, 1 Ad- under thc^ Public Trustee Act, dams, 494. 190(5 (0 Edw. Vll. c. 55), s. (1), (A) Shep. Touch. 485, 480 ; administration may be granted Wms. Exors. 428, 950, 7th cd. ; to the public trustee ; but as 720, 10th ed. between him and the widower, (/) Be Gill, 1 Hagg. 342. widow or next of kin of the Under the Land Transfer Act, deceased, they are to be pre- 1897, where a person dies pos- f erred, unless for good cause sessed of real estate, the Court shown to the contrary' ; see shall, in granting administration, Public Trustee Rules, 1912, have regard to the rights and No. ; W. N. 27th Aj)ril, 1912. interests of persons interested in {in} Webb v. Needham, 1 Ad- his real estate, and his heir-at- dams, 494. See Coombs v. law, if not one of the next of kin. Coombs, L. R. 1 P. & D. 288. shall be equally entitled to the 518 OF PERSONAL ESTATE GENERALLY. and, for want of creditors, administration might be granted to any perpon at the discretion of the Court of Court (w). But the Court of Probate Act, 1857 (o), rsoTr^"" ^''*'' abolished the whole of the jurisdiction of the Ecclesiastical Courts over the effects of intestates ; and administration of the effects of deceased persons was formerly granted by that Court, and is now granted by the Probate Division of the High Court of Justice in the same manner as the probate of wills (p). After the decease of any person intestate, his personal estate vested in the judge of the Court of Probate for the time being, until letters of administration were granted, in the same manner and to the same extent as they formerly vested in the ordinary (g). It is not clear what person was substituted for the judge of the Court of Probate in this respect by the Judicature Act of 1873 (r), but it has been said to be the President of the Probate Division (s). Rights and The administrator, when appointed, has the same niinrstraton right to and power over all the personal estate of the intestate as his executors would have had if he had made a will {t) ; and this right and power relate back to the time of the intestate's decease {u). {71) 1 Wms. Exors. 440, 445, place of abode at his or her death. 7th ed. ; 350, 354, 10th ed. (q) Stat. 21 & 22 Vict. c. 95. (o) Stat. 20 & 21 Vict. c. 77, s. 19. amended by 21 & 22 Vict. c. 95. (r) See stat. 36 & 37 Vict. e. 66, (p) Ante, p. 489. By stats. ss. 11, 12. 16, 31, 34; Pinneyx. 36 & 37 Vict. c. 52 ; 38 &'39 Vict. Hunt, 6 Ch. D. 98. c. 27, facilities have been given (s) Whitehead y. Pahner, 1908, to the widows and children of 1 K. B. 151, 157. deceased intestates, and to the (t) Wms. Exors. 650, 925, 7th children of intestate widows, ed. ; 485, 694, 10th ed. ; Monte- whose whole estate and effects fiore v. Guedalla, 1903, 2 Ch. 26 ; shall not exceed in value the cmte, pp. 483, 494, 495. sum of 100?., for taking out (w) Tharpe v. Stallwood, 5 letters of administration to their Man. & Gran. 760 ; Foster v. effects, by apphcation to the Bates, 12 M. & W. 226 ; Welch- registrar of the County Court of 7nan v. Sturgis, 13 Q. B. 552 ; i?e the district, within which the Pnjse. 1904, P. 301, 305. intestate had his or her fixed OF INTESTACY. 519 The same duty also devolves upon the administrator of paying the funeral and testamentary expenses and debts in the first place (x). The statutory provisions enabhng executors to compromise claims, and protecting them in distributing the assets of their testator extend also to the administrator of the effects of an intestate (y). And an a,dminis- trator has the same right as an executor to apply to the Court for its assistance in administering the estate or in determining any question, which may arise in the course of administration (2). An administrator also has, in general, the same privilege as an executor of preferring one creditor to another of equal degree, and of retaining his own debt in preference to all others of the same degree (a) : but a creditor taking out administration as such is now required to pay the deceased person's debts without preferring his own (6). After payment of the debts, the surplus of the intest8,te"s estate must be distri- buted by the administrator amongst the persons who may be entitled thereto under the Statutes of Distribution to be hereafter mentioned. In order Administra- to enable the administrator to inform himself of the state of the assets, and to pay the debts of the deceased, the same period of a year from the time {x) See ante, p. 494. audit of trust accounts, and the (y) Stats. 56 & 57 Vict. c. 58, administration by the public s. 21 ; 22 & 23 Vict. c. 35. ss. 27, trustee of deceased persons' 28, 29 ; ante, pi>. 495, 499. The estates under 1,000Z. in value last of these enactments pro- [ante, p. 497) apply also to the tects an administrator distri- administration of the estates of buting the estate, after issuing intestates. the prescribed advertisements, {a) Warner v. Wainsford, Hob. against the claims of unknown 127 ; Wms. Exors. 1032, 1035, next of kin as well as creditors ; 7th ed. ; 782, 785, 10th ed. ; Newton v. Sherry, 1 C. P. D. 240. J)avie.s v. Perry, 1899, 1 (_'h. 002 ; (z) See ante,' pp. 495—497. Be Belham, Um, 2 Ch. 52 ; see And the above-mentioned pro- aitte, pp. 220. 234, 487. visions of the Public Trustee Act, (h) See W. N. 1899, p. 262; 1906, with respect to the transfer Tristram and Coote's Probate of deceased persons' estates to Practice, 22. 101. 102. 118, 716, the public trustee for adminis- 718, 12th ed. tration, the investigation and tor's year. 520 Of personal estate generally. of the decease as is allowed to an executor is also given to the administrator before he can be required to make any distribution (c). But, notwithstanding this delay, the interest of the persons entitled to the surplus vests in them from the time of the decease of the intestate ; so that in case any of them should die within a twelvemonth after the decease of the intestate, the share of the person so dying will pass to his own executors or administrators (d). Limited ad- ministration durante ivi vore cetaie ; In some instances administration is granted for a limited purpose, or confined to a given time. Of this we have already had an instance in the case of administration dwrajite yninore cetate, when the sole executor named in a will is under age (e) ; and the same sort of administration is granted on intestacy, in case of the minority of the next of kin (/). 80 if the executor or next of kin, as the case may be, should be out of the realm at the time of the decease of the testator or intestate, the Court will grant a limited administration durante absentia, which will expire the moment of the return of such executor or next of kin. And if the executor should prove the will, or if any person should obtain letters of administration, and afterwards go to reside out of the jurisdiction of the English Courts, the Court is empowered by Act of Parliament {g) to grant administration, at the end of the year from the pendente lite ; death of the testator or intestate. Again, when a suit concerning the right of administration is pending in the Probate Division of the High Court, the Court may appoint an administrator pendente lite, who will have all the rights and powers of a general durante ah sentid ; (c) Stat. 22 & 23 Car. IL c. 10, s. 8. (d) Edwards v. Freeman, 2 P. Wms. 442. (e) Ante, p. 484. (/) 1 Wms. Exors. 479, 7th ed. ; 386, 10th ed. (g) Stat. 38 Geo. IIL c. 87, ss. 1—5, extended by 20 & 21 Vict. c. 77, s. 74 ; 21 & 22 Vict. 0. 95, s, 18. OF INTESTACY. 521 administrator, other than the right of distributing the residue of tlie personal estate {h) ; and the administrator so appointed may receive such reason- able remuneration for his trouble as the Court may think fit {i). The Court also may appoint such administrator or any other person receiver of the real estate of the deceased pending any suit touching the validity of his will, if it affect such real estate {k). 80 if a will should have been made, but the executors cum testa- should have renounced, or died before their testator, „^j.o,° "'^^ or if no executor should have been appointed, the Court will appoint the person having the greatest interest in the effects, generally the residuary legatee, to administer the same according to the directions of the will, in which case the adminis- tration granted is termed an administration cmn iesiamento annexo, with the will annexed (/). And it is now provided, that, if by reason of the insol- vency of the estate of the deceased, or other special circumstances, the Court shall think it necessary or convenient to appoint as administrator any other person than the person by law entitled to the grant, the Court may do so ; and every such administration may be limited as the Court shall think fit (m). As we have seen (n), estate duty is payable by a Estate duty. person applying for letters of administration as by an executor ; and penalties are imposed for adminis- tering any of the deceased person's effects without taking out administration to him. (h) Stat. 20 & 21 Vict. c. 77, (in) Stat. 20 & 21 Vict. c. 77, s. 70 ; see 30 & 37 Vict. c. GO, s. 73 ; Me Llunwanie, L. li. 1 s. 10 ; Re, Tuhman, 18U7, 1 Ch. P. & i). 300 ; Re Eraser, L. R. 1 806. P. & IJ. 327 ; Re Wensley, 7 P. D. (i) Stat. 20 & 21 Vict. c. 77, 13; Re Vlaylun, 11 P. D. 76; s. 72. Whilehead v. Palmer, 1908, 1 (/.) Sect. 71. K. B. lul, 150. (/) 1 Wms. Exors. 461,7thed.; {«) Ante, pp. 443, 445, 492, 370. loth cd. ; Re Pnjse, 1904, 493. P. 301. 522 OF PERSONAL ESTATE GENERALLY. Office of administrator is not trans- missible. Administra- tion de bonis non. The office of administrator is not transmissible, like the office of executor. On the decease of an administrator, before he has distributed all the effects of the intestate, a new administrator must be appointed ; for tlie administrator or executor of such administrator has no right to intermeddle. So if an executor should die intestate, without having completely distributed his testator's effects, an administrator must be appointed to distribute, according to the will of the testator, such of his effects as were not distributed by the deceased executor (o). In each of these cases the adminis- tration granted is called an administration de bonis non administratis, of the goods not administered, or, more shortly, de bo7iis non (p). All second and subsequent grants of probate or letters of adminis- tration must be made in the principal registry of the Probate Division of the High Court of Justice, or in the district registry where the will is registered or the original grant of administration has been made, or to which it may have been transmitted (q). Distribution of intestate's effects. The application of an intestate's effects, after pay- ment of his debts (r) is generally regulated by the law of the country, in which at the time of his death he had his domicil (s). 80 that if an Englishman, or a native of any other country die intestate, domiciled in France or Scotland, and leaving assets in England, they must be distributed according to the French or Scotch law of intestate succession. But as the succes- sion to land upon intestacy is governed by the law (o) Shep. Touch. 4G5 ; 1 Wms. Exors. 254, 7th ed. ; 180, 10th ed. (p) 1 Wms. Exors. 470, 7th ed. ; 379, 10th ed. iq) Stat. 21 & 22 Vict. c. 95, s. 20. (r) See Re Kloebe, 28 Ch. D. 175; 1 Wms. Exors. 754, 755, 10th ed. (s) Enohin v. Wylie, 10 H. L. C. 1 ; Doglioni v. Crispin, L. R. 1 H. L. 301 ; Re Trufort, 30 Ch. D. 600; 2 Wms. Exors. 1515, 7th ed. ; 1256, 10th ed. ; see ante, p. 480 ; Re Johnson, 1903, 1 Ch. 821. OF INTESTACY. 523 of the country where the land is situate, leasehold property situate in England will devolve in all re- spects according to English law on its intestate owner's death, even though he were domiciled else- where (t). And the same rule seems to apply to mortgages of land in England (u). If the intestate were domiciled in England, the distribution of the surplus of his personal estate is regulated by statutes of the reigns of Charles II. and James II., commonly called the Statutes of Distribution (x), by which statutes the rights of the relations of the deceased appear to have been first definitely ascertained and rendered legally available {y). Under-these statutes if the intestate leave a widow and any child or chil- dren or descendant of any child, the widow shall take a third part of the surplus of his effects. If he leaves no child, nor descendant of any child, she shall have a moiety. In this respect, the distribution is the same as took place under the ancient law. But the widow of a man, who dies intestate without leaving issue, is now entitled to an additional interest in his per- sonalty under the Intestates' Estates Act, 1890 {z). By this Act (a) the real and personal estates of Statutes of Distiibution, Widow's share. (/) Duncan v. Laicson, 41 Ch. (u) Ante. p. 480, n. (e). (:r) 22 & 23 Car. II. c. 10; 1 Jac. II. c. 17, s. 7. Sec Watkins on Descents. Ajipendix. 2.57 sq., 4th ed. ; Re Goudman''s Trusts, 17 Ch. D. 266, as to which, see 1 Wms. V. & P. 159, n. (c), 2nd cd. The estates of intestate freemen of the city of London, and of persons having their fixed or general residence within the archie})iscopnl province of York (excej)ting the diocese of Chester), were fornK^ly distri- buted according to peculiar customs, apparently derived from tiie ancient mode of distribu- tion (Onsloiv V. Ondow. 1 Sim. IS); 2 Wms. Exors., 1527 sq.. 7th cd.). Some parts of Wales also appear to have been subject to peculiar customs of distribu- tion ; for those several customs, though postponed to the right of testamentary disposition by the statutes to which we have already referred (ante, p. 476), were neverthehiss not abolished by thos(! statutes in the event of no will being made. But a statute of 18r)6 (19 & 20 Vict, c. 94) altogether abolished all customary modes of athninia- tration. (v) See ante, p. 3, n. {in). (z) Stat. 53 & 54 Vict. c. 29, a])plying in cases of death after the ist Sept., 1890. (a) Sects. 1 — 3, not applying to cases of partial intestacy ; Re 524 OF PERSONAL ESTATE GENERALLY. Shares of children and their descendants. Advance- ments to be accounted for. every man, who shall die intestate, leaving a •widow, but no iB8ue, shall, if not exceeding 5001. in net vakie (b), belong to his widow absolutely ; and shall, if exceeding that sum in net value, be subject to a charge in her favour of 5001., with interest at four per cent, from the date of death till payment, to be borne by the real and personal estates in proportion to their value. And the provision so made is to be in addition to the widow's other interest in her intestate husband's real and personal estate, and any sum so charged in her favour upon her late husband's per- sonalty must be first satisfied and deducted before the surplus, in which she is entitled to share under the Statutes of Distribution, can be ascertained (c). The husband of a married woman is entitled to the whole of her effects {d) ; including any personal estate, to which she may have been entitled as her separate property by virtue of the Married Women's Property Act, 1882 (e). If the intestate leave chil- dren, two-thirds of his effects if he leave a widow, or the whole if he leave no widow, shall be equally divided amongst his children, or, if but one, to such one child. But the descendants of such children as may have died in the intestate's lifetime, shall stand in the place of their parent or ancestor, taking as between themselves per stirpes (/) ; and such descen- dants take per stirpes, whether any child of the intestate survive him or not. Such children, how- ever, as have any estate by settlement from the Twiggs Estate, 1892, 1 Ch. 579 ; cf. Re Cuffe, 1908, 2 Ch. 500. (6) I.e., after deducting the value of any charges on the real estate, and of all debts, funeral and administration expenses, and other liabilities, payable out of the personal estate ; Stat. 53 & 54 Vict. c. 29, ss. 5. 6 ; Me Twigg's Estate, 1892, 1 Ch. 579. Rever- sionary or contingent interests are to be taken at their value at the death ; Re Heath, 1907, 2Ch 270. (c) See s 4. (d) Stat. 29 Car. II. c. 3, s. 25. (e) Re Lamberfs Estate. 39 Ch. D. 620, confirming the opinion expressed in pi'cvious editions of this book and in Williams' Con- veyancing Statutes, 456 — 458. (/) See Burton's Compendium, pi. 1402 ; Ross's Trusts, L. R. 13 Eq. 286 ; Re Xatt, 37 Ch. D. 517. OF INTESTACY. 525 intestate, or have been advanced by him by portion in his hfetime, must bring the amount of their advancement into hotch-pot, so as to make the estate of all the children to be equal, as nearly as can be estimated. But the heir at law, notwithstanding any lands he may have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of such land (g). If the intestate leave no issue, the interest of his widow, if any, under the Intestates' Estates Act, 1890 (h), must first be ascertained ; subject to which the intestate's father, if living, is entitled to one-half of the surplus of the effects, the widoAV taking the other half. If the intestate leave neither widow nor issue, the father will be entitled to the whole (i). If the father be dead, the mother, brothers and sisters of the intestate shall take in equal shares {k), subject, as before, to the widow's right to a moiety ; and brothers or sisters of the half blood have an equal claim with those of the whole blood (Z). If any brother or sister shall have died in the lifetime of the intestate, leaving children, such children shall stand in loco parentis, provided the mother or any brother or sister be living {m). If there be no brother or sister, nor child of such brother or sister, the mother shall take the whole, or, if the widow be living, a moiety only, as before ; but a stepmother can take nothing (n). If there be no mother, the brothers and sisters take equally, the children of such Father of intestate. Mother, brothers and sisters. {g) Stat. 22 & 23 Car. II. c. 10, s. .5 ; Boi/d V. Boi/d, L. R. 4 Eq. 305 ; Taylor v. fat/lor, L. R. 20 Eq. 15.5 ; Hatfield v. 3Iinrt, 8 Ch. D. 136; Re Blorkley, 29 Ch. D. 250 : Be Ford, 1902, 2 Ch. 605. (h) A7itc, p. 523. (0 2 Wms. Exors. 150fi, 7th ed.; 1248. 10th od. (k) Stat. 1 Jac. II. c. 17, s. 7, (l) .Jrssop V. Walsoiu 1 'Sly. & K. ()()5 ; Bunult V. Mann, 1 My. & K. (172. n. ; Rr Green, 1911, 2 Cli. 275. (w) Lloyd V. Tench, 2 Vcs. .sen. 215 ; Duranl v. Prestwood, 1 Atk. 454 ; West. 448. ( n ) Duke of Rutland v. Duchess of Rutland, 2 P. Wins. 21H. 526 OF PERSONAL ESTATE GENERAULiY. Next of kin. as may be dead standing in loco parentis (o). Beyond brothers' and sisters' children, no right of representa- tion belongs to the children of relatives, with respect to the shares which their deceased parents would have taken. And if there be neither brother, sister nor mother of the intestate living, his personal estate will be distributed in equal shares amongst those who are next in degree of kindred to him. Degrees of In tracing the degrees of kindred in the distribu- traee'daeeord. ^'^^^ ^^ ^^ intestate's personal estate, no preference ingtothe is given to males over females, nor to the paternal '^^" over the maternal line (p), nor to the whole over the half blood, as in the case of descent of real estate ; nor do the issue stand in the place of the ancestor. The degrees of kindred are reckoned according to the civil law, both upwards to the ancestor and down- wards to the issue, each generation counting for a degree (g). Thus from father to son, or from son to father, is one degree ; from grandfather to grandson, or from grandson to grandfather, is two degrees ; and from brother to brother is also two degrees, namely, one upwards to the father, and one down- wards to the other son. So from uncle to nephew is three degrees, one upwards to the common ancestor, and two downwards from him ; and from nephew to uncle is also three degrees, two upwards and one downwards. If, therefore, there be neither issue, father, brother, sister nor mother of the intestate living, such persons as are his next of kin, according to the rule above laid down, are entitled in equal shares per capita to his personal estate, subject to his wife's right to a moiety should she survive him. Thus if in such case there be any children surviving of any brother or sister of the (o) Ee Gist, 1906, 1 Ch. 58 ; 2 (q) Mentneyx. Pettij, Pre. Cha. Ch. 280. 593 : Wallis v. Hodson, 2 Atk. (p) Moor V. Barhani, 1 P. Wms. 117 ; 2 Black. Com. 504, 515. 53. I OF INTESTACY. 527 intestate, these do not then take per stirpes by representation of their deceased parent (as they would have taken if the mother or any brother or sister of the intestate had survived him (r)), but they take per capita as the intestate's next of kin, and along with any other surviving relatives, such as uncles or aunts, in the same degree of kindred (s). As the kmdred becomes more distant, the number of persons entitled, if living, as well as the difficulty of proving their respective pedigrees, becomes pro- digiously augmented {t). The shares of persons claiming any personal estate under an intestacy are subject to the same duty as legacies to persons of the same degree of kindred ; Duty on and the exemptions from duty are the same as in the ^^f ^'^f f^,*n ^ ^ intestate s case of legacies {u). If there be no next of kin, the estate. Crown, by virtue of its prerogative, will take the intestate's personalty as bona vacantia (x), but sub- The Crown, ject always to the widow's right to a moiety in case she should survive (y). (r) Ante, p. 525. and twenty-four in the tenth ; {«) Walsh V. Wnlxh, 1 Eq. Ca. and at the twentieth degree, or Abr. 249, pi. 7 ; Prec. Ch. 54 ; the distance of twenty genera- Lhi/d V. Tench, 2 Ves. sen. 213, tions, every man hath above a 215. million of ancestors, as common {t) " It is at the first view arithmetic will dcmon.strate " ; astonishing." says Blackstone, 2 Black. Comm. 203. Tho " to consider the number of number of collateral relations lineal ancestors which every man who may claim through such has within no very great number ancestors is of course far more of degrees : and so manj' numerous. different bloods is a man said (m) Stats. .55 Geo. III. c. 184 ; to contain in his veins as he 44 Vict. c. 12, ss. 36, 41, 42; 10 hath lineal ancestors. Of these Edw. VII. c. 8, s. 58. See he hath two in the first ascending ante, ]i]). 500 — 502. n. (p). degree, his own parents ; he (.r) Taylor v. Hayqnrth. 14 hath four in tiie second, the Sim. 8; Potvell v. Merrrtt. 1 parents of his fatlior and tho Sma. & Giff. 381 ; Re Hi(i(/insnn parents of his mother ; he hath nwrf Bern, 1890, 1 Q. B. 325, eight in the third, the parents 329 ; Re Barnetfs Tmst!^, 1902. of his two grandfathers and two 1 Ch. 847. Sec stats. 39 & 40 grandmothers; and, by the Vict. c. 18 (repealing 15 & 16 same rule of progression, he Vict. c. 3) ; 47 & 48 Vict. c. 71. hath an hundred and twenty- hj) Cave v. Roberts, S Sim. 2H. eight in the seventh ; a thousand 528 OF PERSONAL ESTATE GENERALLY. Place of the half blood. Points in which dis- tribution is preferable to descent. The division of the personal estate of an intestate, effected by the Statute of Distributions, is remark- able for its fairness. The only provision which might be amended is that which places the half blood on an equality with the whole A corre- sponding equality in interest and feeling but rarely exists in actual life. The proper place for the hali blood appears to be that now assigned to them in the descent of real estate, according to the recommenda- tion of the Real Property Commissioners, namely, next after those of the same degree of the whole blood (z). The appointment of an executor or administrator, in whom the whole personal property is vested, with full power of disposition, tends greatly to simplify the title to leasehold estates and other property of a personal nature. It could be wished, however, that the office of an administrator were transmissible in the same manner as that of an executor. In other respects, the distribution of per- sonal estate on intestacy approaches far more nearly to the disposition which the deceased himself would probably have made, than the descent of real pro- perty, either at the common law or according to the custom of gavelkind. A person possessed only of small landed property usually devises it to trustees for sale, with full power to give receipts to pur- chasers, and directs the division of the produce by his trustees amongst his children in such shares as he may think just, mth regard to the provision already made for any of them in his lifetime. He does not leave his younger children to beggary in order that his whole property may devolve to his eldest son according to the course of the common law, a course pursued, as the author believed, in no other civiHsed country in the world (a). Neither does he leave it to all his sons equally in undivided shares, thus (2) See Williams R. P. 235, (a) Co. Litt. 191. a, n. (1), 21st ed. vi. 4. OF INTESTACY. 529 inflicting an injustice on his daughters, and allowing all plans for the improvement of the lands to be checked by one dissentient voice, unless a partition should be resorted to, by which the property would be split up into parcels too small for the convenience of agriculture. If by any accident a man should die without making his will, it would seem to be the province of an equitable legislature to make such a disposition of his property as would, in ordinary circumstances, most nearly correspond mth his intention. It is true that when property is large it is usually entailed on the eldest son and his issue subject to moderate portions for the younger chil- dren. This custom of primogeniture is suited to the Primo- institutions of our country, and to the habits of the ^"^"^ class to which large landed property usually belongs, and the author had no wish to see it disturbed. The settlements, however, by which these entails are created are more frequently made by deed than by will. They almost invariably contain provisions for the portions of younger cliildren, varying in amount with the value of the property ; and, whether made by deed or will, they are usually long and intricate in their nature, providing for the numerous contin- gencies which may arise under the peculiar circum- stances of each family. Nothing in fact can be more different than the devolution of an estate to the eldest son under a family settlement, and the descent on an intestacy to the eldest son as heir at law. In the one case he takes subject to the proper claims of the other members of his family ; in the other he is bound to them by no obligation at all. There seems to be no method of making, in case of intestacy, any sort of disposition of landed property which might be reasonably simple, and at the same time resemble an ordinary family settlement. If such a settlement be not made by deed, the owner has ample power of effecting the same object by his will, w.p.p. 34 530 OF PERSONAL ESTATE GENERALLY. Intestacy, in fact, rarely happens to the owner of large landed property. The property which descends to heirs under intestacies, though large in the aggre- gate, is generally small in individual cases. When the wishes of all cannot be consulted, that which would have been the wish of the generality of intestates ought apparently to form the foundation of the rule. From a consideration of these circum- stances the reader may perhaps be induced to think, that if, in case of intestacy, the rules for the devolu- tion of real and personal estate were identical, and with some slight variations similar to those which now exist as to personalty, the law on this subject would be rendered both more simple and more just. Descent and devolution to distant heirs and kindred. The descent of real estate to distant heirs, and the devolution of personalty to distant kindred, involve an amount of learning and litigation, the abolition of which would perhaps be desirable. The family and near relations of an intestate have generally claims upon his bounty, which ought not to be disappointed by the accident of his decease without making a will. But distant relatives have seldom any such claims, nor consequently any expectation of such claims being fulfilled. To withhold from them, therefore, that which they never had expected to enjoy, would not be to inflict a loss. Under the present system, the property of an intestate who has no near rela- tions, is not infrequently frittered away in expensive contests between opposing claimants, or else it devolves unexpectedly upon persons who, for want of previous education, are unable to make use of it with benefit either to themselves or to the com- munity. In a country so heavily burdened as our own, any addition to the public income, not having the pressure of a tax, would be a very desirable acquisition. Such an addition might, as it appeared to the author, be very properly made by the devolu- OF INTESTACY. 531 tion to the public of the properties of intestates having none but distant relatives. The country in which a man has lived, and in which his property has been acquired, or at any rate protected, has cer- tainly some claims upon him, — claims which seem preferable to those of the man who, in the case of real estate, founds his title on his descent from the mother of the most remote male paternal ancestor of the intestate (6), or who claims a share in the per- sonalty because he chances to be a survivor amongst the multitude standing in the fifth or sixth degree of a series of kindred which increases, as it grows distant, in geometrical progression (c). We have seen {(I) that the share, to which any Vesting. person may be entitled under the Statutes of Dis- tribution in an intestate's effects, vests in him on the death of the intestate and will be payable to his own executor or administrator if he die before the estate be actually distributed. It appears that, until this Alienation for share has been ascertained, that is, until the in- ^^^^- testate's funeral and testamentary expenses and debts have all been paid, it may be attached by the same process of equitable execution as is available against an unpaid share of a testator's residuary estate (e). But after all such expenses and the debts have been paid, the persons taking under the statutes become absolutely entitled to the intes- tate's remaining effects in specie as tenants in common (/) ; and it seems that their respective interests would then be subject to the appropriate processes of execution for debt according to the nature of the chattels so enjoyed. (b) See Wiliiam.s, R. P. 230, {d) Ante, p. 520. 21st ed. (e) Ante, p. 514. (c) The author's attention was (/) Cooper v. Cooper, L. R. 7 since called to a similar proposal H. L, 53, 65 ; Blake v. Brijne, in Mill's Political Economy, vol. 1908, A. C. 371, 379. i., pp. 272, 273, 2nd cd. 34 — 2 532 OF PERSONAL ESTATE GENERALLY. CHAPTER V. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. A VERY great change was made in the legal capacity of married women and in the respective rights of husband and wife by the Married Women's Property Act, 1882 (a). This Act came into operation on the 1st of January, 1883 (6) ; and the rights of wives who were married on or after that day, are chiefly regulated by its provisions. Married women, how- ever, whose marriage took place before that date, remain in many respects still subject to the previous law. So that a knowledge of the law, which was in force before the commencement of this Act, will be necessary for the legal practitioner for some time to come. It is, moreover, impossible to understand the Act without some acquaintance with the previous law. For these reasons it is proposed in the present chapter to explain first the rights given to husband and wife respectively by the common law, and the important rights secured to married women by Courts of Equity, together with the modifications introduced by the Married Women's Property Act, 1870 (c), and other statutes ; and then to consider the changes made by the Married Women's Property Act, 1882 (d). ^ 1. At Common Law and in Equity prior to 1883. Ancient Down to the time when the Act of 1882 took husband and effect, the principles which governed the legal (as wife. (a) Stat. 45 & 46 Vict. c. 75. see p. 436, note {q). See Williams' Conveyancing (c) Stat. 33 & 34 Vict. c. 93. Statutes, pp. 373 sq., 418, 42L (d) Stat. 45 & 46 Vict. c. 75. (b) Sect. 25 ; ibid., p. 463, and OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 533 distinguished from the equitable) rights of husband and wife to personal property were traceable rather to the circumstances of aitcient than of modern times. In ancient times landed property was by far the most important ; and the wife was accordingly entitled to a provision out of the lands of her hus- band, in the event of her surviving him, which no alienation that he could make, nor any debts which he might incur, were able to set aside (e). But the law made no such provision in the wife's favour with regard to the husband's chattels ; although the early law did indeed prevent a husband from be- queathing more than a certain part of his chattels away from his wife or children (/). As we have seen, however, this ancient rule came in time to take the place of an exception to the general law, which has not allowed a wife to take any interest in her hus- band's personalty, except in case of his intestacy (g). A husband, on the other hand, according to the established common law, was considered absolutely entitled to such personal chattels as his wife might possess {h). In this respect the law was then both simple and sufficient. By the act of marriage, the wife placed herself under the coverture or protection of her husband. She became in the law French of those days a feme covert. Thenceforth all demands to which she was personally liable were to be answered by her natural protector. The wife was considered as merged in her husband, and both were regarded as but one person {i). Accordingly, all rights in respect of personal estate, which were enjoyed by a man at the time of marriage, remained to him unaltered after marriage. A husband, moreover, enjoyed the full legal capacity for acquiring (e) Sec Williams, R. P. 322, the law of hus])an(l and wife, see 21st cd. P. & M. Hist. Eng. Law, i. 465, (/) Ayite, pp. 2, 476. ii. 397. sq., 402, 42.5 sq., 435. (g) Ante, pp. 476, 523. (t) Williams, R. P. 306, 21st (h) As to the eariy history of od. 534 OF PERSONAL ESTATE GENERALLY. and exercising all rights with regard to property, just as much as an unmarried man. And in this respect the law still remains the same. But the capacity of the wife for acquiring and exercising rights over personal estate was by the common law mainly transferred to the husband during the period of her coverture, that is, during the continuance of the marriage {k). So long therefore as the coverture continued, the husband was absolutely entitled to all personal property which his wife might have or acquire, and which was in possession or was reduced by him into his possession. During the same period, however, he was liable to be sued, jointly with his wife, in respect of all contracts made by her before marriage {1), and all torts (m) committed by her either before or during the marriage (n). He might thus be made liable to the payment of all debts which she might have incurred before marriage. Until the passing of the statute above mentioned, these simple principles pervaded the law relating to the husband's interest in his wife's personal estate ; although the several different species of personal estate to which modern civilisation has given rise, conjoined with the rules of equitable administration laid down by the Court of Chancery, and the anoma- lous rights conferred upon married women by the Married Women's Property Act, 1870 (o), gave to this branch of law a perplexity unknown to the simple, though somewhat harsh, rules of our ancestors. The wife's chattels personal be- long to her husband. In the first place then, by the common law, per- sonal property of the ancient kind, namely, chattels personal or movable goods, belonging to the wife at! (k) See Williams' Conveyanc- incr Statutes. 373—376. (Z) Ihid., .396, 432—436. (m) See ante, p. 162. (n) See Williams' Conveyanc- ing Statutes, 399 sq. (o) Stat. 33 & 34 Vict. c. 93. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE, 535 the time of her marriage, or given to her afterwards, became the absokite property of her husband in the same manner precisely as if they had been originally his own, or had been subsequently given to him (p). He might dispose of them as he pleased in his life- time or by his will ; they were subject to his debts ; and if he died intestate, the wife had no further claim to them than to any other of his effects. 80 imperative was this rule, that if chattels personal in possession were given to a married woman jointly with a stranger, the law instantly severed the jointure, and made the husband and the stranger tenants in common (q). The only exceptions to this sweeping rule were Paraphcr- the wife's paraphernalia, so called from the Greek ^^^^^' 7rapa(f)€pur), being things to which the wife was entitled over and above her dower. The wife's paraphernaha consisted of her apparel and orna- ments suitable to her rank and degree (r) ; and gifts made by the husband to his wife of jewels or trinkets to be worn by her as ornaments were considered as ])art of her paraphernalia (s). These articles, equally with the wife's other personal chattels, might be disposed of by the husband in his lifetime {t), and, with the exception of the wife's necessary clothing, were also liable to his debts (u). The wife also her- self had no power to dispose of them by gift or will (p) Co. Litt. 300 a, 351 b ; 17 Beav. 566. See Re Breton's Bac. Abr. Baron and Feme (C.) eMate, 17 Ch. D. 416, as to the 3 ; 1 Roji. Husband and Wife, jewellery ; Tasker v. Tasker, 169. 1895, P.' 1 ; Masson, Tcmplier & {q) Brncebridge v. Cook, Plow- Co. v. De Fries, 1909, 2 K. B. den 416, 418; Re Barton's will, 831, 839, 840. 10 Hare, 12 ; Re Butler's trusts, (t) Ibid. ; 2 Rop. Huab. and 38 Ch. D. 286. Wife, 141. [r) 2 Bl. Com. 436 ; 2 Rop. (u) 2 Bl. Com. 436 ; Ridout v. Husb. and Wife, 140; 11 Vin. Earl oj Plymouth, 2 Atk. 104; Abr. tit. Executor (Z. 5). Lord Townsend v. Wyndham, 2 {s) Graham v. Londonderry, 3 Ves. sen. 1, 7. Atk. 394 ; Jervoisc v. Je.rvoise, 536 OF PERSONAL ESTATE GENERALLY. during her husband's lifetime (x). But paraphernalia differed from the wife's other personal chattels in this respect, that the husband, though he might dis- pose of them in his lifetime, had no power to be- queath them away from his wife by his will {y). Gifts of jewels or trinkets made to the wife by a relative or friend, either upon or after her marriage, were generally considered in equity as intended for her separate use (z), in which case they were not reckoned amongst her paraphernalia, but were, as we shall hereafter see, exempt from the control and debts of her husband, and might be disposed of by the wife in the same manner as if she were un- married. Choses in action. Husband might keep them if he could get them during coverture. Legal choses in action. With regard to such of the wife's personal estate as was not in possession, but for which she had only a right to sue, the rights of the husband were different according as the proceedings against the persons liable to be sued were required to be taken in a court of law or of equity. Property of this nature, as we have already seen {a), is termed in law French choses in action : such as might be recovered by action at law were called legal choses in action, and such as might be recovered by suit in equity were called equitable choses in action. With regard to each of them, the rights of the husband were of a different kind, although in each the same rule applied, that if he could get them into his possession during the coverture he had a right to keep them, otherwise they would belong to his wife (6). Legal choses in action consist principally of debts due to the wife, and secured or not by bond or by (.r) 2 Rop. Hiisb. and Wife, 141. iy) Tipping v. Tipping, 1 P. Wms. 730 ; Northey v. Northey, 2 Atk. 77. (2) Graham v. Londonderry, 3 Atk. 394; 2 Rop. Husb. and Wife, 143. (a) Ante, p. 28. {b) 2 Bl. Com. 434 ; 1 Wms. Exors. 846 sq., 7th ed. ; 641 sq., 10th cd. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 537 bills or promissory notes. Of all these the husband had a right to receive payment, and, should pay- ment have been refused him, he might sue for them in the joint names of himself and his wife (c) ; but bills and notes of the wife payable to order, being transferable by indorsement, might be indorsed by the husband alone {d), or sued for in his own name (e). All such legal clioses in action as accrued to the wife after her marriage might be sued for by the husband, either in the joint names of himself and his wife, or in his own name only (/) ; but if the wife had really no interest, he could not of course make use of her name {g). If the husband sued in the joint names of himself and his wife, the benefit of the judgment of the Court survived to her in the case of his de- cease (h) ; but if he sued in his own name, the benefit of the judgment formed part of his own personalty. If, however, the husband should not have received the money in his lifetime, or should not have obtained judgment for it in his own name, on his decease his wife became entitled by survivorship to the chose in action so remaining still unreduced into possession (i), and bills and notes formed no excep- tion to this rule (k) : but if the wife died before her Husband sur- husband, these choses in action, still remaining un- take"o utTd- reduced, formed part of her personal estate ; and her ministration, husband had to take out administration to her effects before he could proceed to recover them (l). When recovered, they belonged to him absolutely, (c) 1 Rop. Husb. and Wifn, 644. 213,214; Sherrington V. Yates, (h) 1 Vern. 396 ; 1 Rop. Husb. 12 M. & W. 855. In this case and Wife, 212. the note was not payable to (i) (!o. Litt. 351 b. order, and therefore not nogo- (A) Rirhards v. Richards. 2 R. tiable. ' & Ad. 447 ; 36 R. R. 619 ; 6'«^erA' (rf) Mason V. Morqan, 2 A. & v. MudeJey, (i M. & VV. 423 ; Hart E. 30. V. Rte.fhens. 6 Q. B. 937 ; Scar- (p) Bnrrough v. Moss, 10 B. & ])ellini v. Alcheson, 7 Q. B. 864. C. 558. (I) 1 Rop. Husb. and Wife, (/) 1 Rop. Husb. and Wife, 205. See Belts v. Kimplon, 2 213. B. & Ad. 273. {g) Abbott V. Bloficld, Gro. Jac. 538 OF PERSONAL ESTATE GENERALLY. as did any other personalty, which he might acquire as his wife's administrator (m). But the husband, as the administrator of the wife, was bound to satisfy her ante-nuptial debts and other personal liabilities out of the assets which he acquired in that capacity (n). Exception. The only exception to the rule, requiring the husband to take out administration to the wife in order to recover her chose in action, occurred in the case of the husband being entitled, in right of his wife, to " any estate in fee simple, fee tail, or for term of life, of or in any rents or fee farms ; " in which case the husband, after the death of his wife, was empowered by statute (o) to recover the arrears accrued to his wife before marriage by action of debt or distress. But this provision did not apply to the rents reserved upon leases for years (p). Equitable choses in action. Equitable choses in action consist principally of legacies, residuary personal estate of testators, and money in the funds. But all kinds of personal pro- perty, including chattels real {q), vested in trustees, who were formerly answerable only to the Court of Chancery, were subject to a rule of equity, by which equitable choses in action were mainly distinguished from such as were merely legal. This rule was as follows : that the Court of Chancery would not assist, nor, if the wife should dissent, would it allow the husband to recover or receive any property of his wife recoverable only in that Court, without his settling a due proportion of such property on his wife and children (r). The right of the wife to such (m) See Williams' Conveyanc- ing Statutes, 375, 452—454 ; Smart v. Tranter, 43 Ch. D. 587. (n) Williams' Conveyancing Statutes, 454. (o) Stat. 32 Hen. VIII. c. 37, s. 3. (p) Prescott V. Boucher, 3 B. & Ad. 849. {q) Hansom v. Keating, 4 Hare 1. As to the question of the wife's equity to a settlement out of the rents and profits of here- ditaments belonging to her for an equitable estate of freehold, see Williams, R. P. 313, 21st ed. (r) It was formei-ly hold that the wife's equity to a settlement did not extend to sums under 200L ,• Fod''n v. Finney, 4 Russ. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 539 a provision was termed the wife's equity for a settle- Wife's equity ment (s). In fixing the proportion to be settled, a ment! prior settlement was always taken into account (t). But where no settlement had previously been made, the proportion required to be settled on the wife was most frequently one-half (u) ; and sometimes the Court went so far as to require a settlement of the whole fund (x). Although the children were usually inserted in the settlement, yet the right was personal to the wife, and might be waived by her {y) ; nor would it survive to the children in case of her decease, before the Court had made its decree {z) ; but if she died after the decree, it would still have been carried into effect for the benefit of the chil- dren {a). The ultimate limitation in default of children was in favour of the husband absolutely ; as, but for the equity to a settlement, the property would have been his own (6). This rule of the Court of Chancery, by which a settlement was enforced, was founded on one of the maxims of equity, that he who would have equity must do what is equit- able (c) ; it could not, therefore, be enforced until the 428 ; but this distinction was Taunton v. Morris, 1 1 t'h. D. afterwards abolished ; In re 779 ; Reid v. Rcid, 33 Gh. D. Cutler, 14 Beav. 220 ; Re Kincaid, 220. 1 Drew. 326. (?/) Murrmi v. Lord Elibank, {s) 1 Rop. Husb. and Wife, 13Ves. 6; 7R. R. 346. But the 256 sq. ; Re Briant, 39 Ch. D. wife having once insisted on her 471. right could not afterwards waive (t) March v. Head, 3 Atk. 720 ; it ; Barlccr v. Lea, 6 Mad. 330 ; Lady Elibank v. Montolieu, 5 Whittem v. Sawyer, 1 Beav. 593. Yes. 737 ;" 5 R. R. 151 ; ErsJcine's {z) De La Garde v. Lempriere, Trust, 1 K. & J. 302 ; Spirett v. 6 Beav. 344 ; overruling Stein- Willoivs, L. R. 1 Ch. 520. mifz v. Ilalthin, 1 Glyn. & Jam. (u) 1 Rop. Husb. and Wife, 64 ; Baker v. Bayldon, 8 Hare, 260; Archer V. Gardiner, \Q. 'P. 210; Wallace v. Auldjo, 1 De Coo)). .340. Oex, J. & S. 643. (x) Brett v. Greemvell, 3 You. («) Groves v. Clarke, 1 Keen, & Coll. 230 ; Gardner v. Marshnll, 1 32 ; S. C, Groves v. Perkins, 6 14 Sim. 575 ; Scott v. Spaskett, Sim. 584. 3 Mac. & G. 599 ; Dunklei/ v. (I,) Croxton v. May, L. R. 9 Dunkley, 2 De Gex, M. & G. .390 ; Eq. 404 ; Walsh v. Wason, L. R. Marshall v. Fowlfr, 16 Beav. 8 Ch. 482. 249 ; Gent v. Harris, 10 Hare, (c) 2 P. Wms. 641. 383 ; Re WelcMian, 1 Giff. 31 ; 540 OF PERSONAL ESTATE GENERALLY. time arrived when the fund became payable to the husband (d). If, however, as most frequently- happened, the husband could obtain from the exe- cutor or trustee of the fund in question payment of it to himself, without the assistance of the Court, he had a right to do so, and in this case the wife's equity was at once excluded. And if the time of payment had arrived, the executor or trustee might safely pay over the fund to the husband, unless the wife should have already commenced a suit or an action to enforce her right to a settlement (e). The receipt of the fund by the husband, when it had become payable, was also an effectual bar to the wife's right by survivorship (/). Effect of the husband's assignment. If the husband, instead of obtaining payment of the fund, should have assigned it to a third person {g), or if he should have become bankrupt {h), his assignee or the trustee for his creditors would have taken subject to the wife's equity for a settlement, in the same manner as if no assignment had been made. But if the interest to which the wife was entitled consisted of an equitable estate for her life only, an assignee from the husband of such life interest for valuable consideration would have been entitled to hold it as against the wife's equity for a settlement (i) ; although she would have been entitled to a settlement as against his creditors' (d) Osborn v. Morgan, 9 Hare, 432. (e) 1 Rop. Husb. and Wife, 273 ; Murray v. Lord Elihank, 10 Ves. 90 ; 7 R. R. 346. (/) 1 Rop. Husb. and Wife, 220 ; Recs v. Keith, 1 1 Sim. 388 ; Cunningham \. Anlrobus, 16 Sim. 436. ig) 1 Rop. Husb. and Wife, 271 ; Malcolm v. Charlesworth, 1 Keen. 73, 74 ; Scott v. Spashett, 3 Mac. & G. 599; Carter v. Taggart, 5 Do Gex & Sm. 49 ; 1 De Gex, M. & G. 286. See Ward V. Yates, 1 Drew & S. 80. (h) 1 Rop. Husb. and Wife, 268 ; Taunton v. Morris, 11 Ch. 1). 779. (i) Elliott V. Cordell, 5 Mad. 149 ; 21 R. R. 287 ; Stanton v. Hall, 2 Russ. & M. 175, 182 ; 34 R. R. 49; Tidd v. Lister, 10 Hare, 140, 154 ; 3 De Gex, M. & G. 857 ; Re Duffy's Trust, 28 Beav. 386. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 541 trustee in banla^uptcy (k). If the husband died before the assignee got possession of the fund, leaving his wife surviving, the wife's right by sur- vivorship prevailed over the title of the creditors' trustee in bankruptcy (I) or the assignee for valuable consideration (m). If the wife should have been entitled to any chose Assignment in action, whether legal or equitable, of a rever- reversionary sionary nature, the effect of an assignment by the choses in T.™ .,.-. . action. husband was dmerent ni ditierent circumstances. The wife could not assign (n) ; for by the act of marriage she deprived herself of all power so to do ; and the husband could only assign to another the interest to which he might be entitled himself. Suppose, therefore, that the wife was entitled, on Example. the death of A., a hving person, to a sum of stock standing in the names of trustees, and that her hus- band made an assignment of this reversionary interest to B., a purchaser ; the benefit which accrued to B. by virtue of this assignment, varied, according as the husband, the wdfe, or A., the tenant for life, happened to die first. If the husband died first, B. lost his purchase ; for the wife having sur- vived her husband, became on the death of A. en- titled to the stock, which had never been reduced into the possession of her husband, or of B., his assignee (o). If A. died first, B. might then obtain a transfer of the stock, if the trustees chose to trans- fer it to him, and if the wife should not have brought a suit or an action to enforce her equity to a settle- (k) Wrujhtv. Morley, 11 Yes. M'udge, 2 Giflf. 18.3; Prole v. 17 ; 8 R. R. m ; Taunion v. (icudy, L. R. 3 Ch 220. Morris, 11 C'h. I). 779. (n) Otherwise than under (/) Pierce v. Thornley, 2 Sim. slat. 20 & 21 Vict. c. 57, stated 167. 1 olow ; Scalon v. Seaton, 13 (/«) llukhings v. Smith, 9 Aj j). ('as. 61. Sim. 137; Ellison x. Elwin, 13 {o) Pvrd(v v. Jaclson. I Russ. Him. :iOd lAshbyv.Ashbi/, I Co\l. 1; 25 R. R. 1; Honner v. 553; Le Va,sscur v. ScraUon, Jl7cr/67!, 3 Russ. 65 ; 27 R. R. 15. 14 Sim. 116; Michdmore v. 542 OF PERSONAL ESTATE GENERALLY. ment (p). But if the trustees refused to transfer without the direction of the Court, or if the wife insisted upon her right, then, as we have seen (q), B. most probably obtained only half of the fund for his own benefit, and was obliged to settle the other half on the wife and children. If, however, the wife died first, then this chose in action, not having been reduced into possession, remained part of the wife's personal estate, like a legal chose in action under the same circumstances (r) ; and the husband, on taking out administration to his wife, was bound by his previous assignment. B. accordingly in this single event obtained the whole fund, subject, however, to the wife's debts, if any. It was once thought that if an assignment could be obtained from the tenant for life, of his life interest in a fund circumstanced as above mentioned, to the married woman entitled to the reversion, she would be in the same situation as if the whole fund had been originally held in trust for her absolutely ; and that, after such an assign- ment, the whole fund might therefore be trans- ferred to the husband (s). But it is contrary to the general principle of equity to allow the rights of parties to be affected by any merger or extinguish- ment of interests, and the doctrine in question was overruled (t). Release of The same principles which applied to the assign- husband, ment by a husband of his wife's reversionary interest in a chose in action, applied also to his release, which was as little binding on her as his assignment, {p) Greedy v. Lavender, 13 592 ; Hall v. Huqonin, ib. 595 ; Beav. 62. Bishopp v. Colebrook, 11 Jur. {q) Ante, p. 539 ; and see 793. Roberts v. Cooper, 1891, 2 Ch. (t) Whittle v. Henning, 11 335. Beav. 222 ; affirmed, 2 Phil. 731 ; (r) Ante, p. 537. Hanchett v. Briscoe, 22 Beav. {s) Creed v. Perry, 14 Sim. 496. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 543 in case of her being the survivor (u). If, however, Money the reversionary chose in action of the wife consisted rea/estate! of money charged on real estate, the wife's interest could either be released or assigned by a deed acknowledged by her, with the concurrence of her Inisband, under the provisions of the Fines and Recoveries Act, 1833 {x). The contrary was decided in a case {y), which may now be considered as overruled (z). The Married Women's Reversionary Interests Act, 1857 (a), commonly called " Malins' Act," enabled every married woman, with the concurrence of her husband, by deed to dispose of every future or reversionary interest, whether vested or con- tingent, of such married woman, or her husband in her right, in any personal estate to which she should be entitled under any instrument (except her marriage settlement) made after the 31st December, 1857 ; also to release or extinguish any power in regard to any such personal estate ; and also to release and extinguish her equity to a settlement out of her personal estate in possession under any such instrument as aforesaid. But every such disposition was required to be separately acknowledged by her in the manner required by the Fines and Recoveries Act, 1833 (6). And nothing therein contained was to extend to any reversionary interest to which she should become entitled under any instrument by which she should be restrained from alienating or Disposition of wife's reversionary interests. Release of powers. Release of equity to a settlement. To be sepa- rately ac- knowledged (m) Rogers v. Acastcr, 14 Beav. 446 ; Harley v. Harley, 10 Hare, 325. (x) Stat. 3 & 4 Will. IV. c. 74. See Williams, R. P. 310, 21st ed. ; 2 Wms. V. & P. 904, 905, 2nd ed. {y) Hobby v. Collins, 4 Dc Gex & S. 289. (z) Sugd. Real Property Sta- tutes, 240, 1st cd. ; 233, 2nd ed. ; Briggs v. Chamberlain, 11 Hare, 09 ; "Tuer v. Turner, 20 Beav. 500 ; see Miller v. Collins, 1896, 1 Ch. 573. («) Stat. 20 & 21 Vict. c. 57, See Wiiherby v. Rackham, 7 Times L. R. 380; Re Elcom. 1894, 1 Ch. 303; Allcard v. ]Yalker, 1896, 2 Ch. 369. {b) Stat. 3 & 4 Will. IV. c. 74. See Williams. R. P. 310, 21st ed. 544 OP PERSONAL ESTATE GENERALLY. Husband's liabilities at common law. affecting the same. Restraint on alienation is ex- plained below (c). In the cases excepted from the operation of this Act a remedy is now provided by the Conveyancing Act, 1911 (d), which enables the Court, if it thinks fit and where it appears to the Court to be for the married woman's benefit, and with her consent, to bind by judgment or order any property or interest in property belonging to her, as to which she is restrained from anticipation or alienation, or which she is by law unable to bind or dispose of, including a reversionary interest arising under her marriage settlement. By the general rule of the common law, founded upon the same principle of the union of person in husband and wife (e), a married woman could not sue or be sued without her husband (/). It followed that, by the common law, a husband was liable to be sued jointly with his wife, during the continuance of her coverture, in respect of all contracts made by her before marriage (g), and all torts (h) committed by her either before or during the marriage {i). He might thus be made answerable for all the debts and liabilities of his wife, contracted previously to her marriage (k). But if judgment for any such debt, or in respect of any such liability, were not recovered during the continuance of the marriage, the hus- band's liability ceased, except to the extent of the assets to which he might be entitled as his wife's administrator (I) ; and if the wife survived she (c) Post, p. 548. (d) Stat. 1 & 2 Geo. V. c. 37, s. 7. (e) Ante, p. 533. (/) See Williams' Conveyanc- ing Statutes, 396, and the authorities cited in notes (h), {i), thereto. For the exceptions to this rule, see ib. 396- — 398. (g) See ib. 432—436. (h) Ante, p. 162. (i) See Williams' Conveyanc- ing Statutes, 399 sq. {k) Roper's Husband and Wife, 73 ; Palmer v. Wakefield, 3 Eea*tf. 227 ; Luard's case, 1 De Gex, F. & J. 533; Be Parkin, 1892, 3 Ch. 510, 519, 520; Cuenod v. Leslie, 1909, 1 K. B. 880. 885, 887. (I) Heard v. Stamford, 3 P. Wms. 409; ante, p. 538. See Williams' Conveyancing Sta- tutes, 399, 400, 433, 454. or THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 545 again became solely liable (m). The husband's liability for torts committed by his wife during her coverture also ceased when the marriage came to an end, unless judgment had been previously re- covered (n). But as her administrator, he was liable to satisfy all her personal liabilities to the extent of the assets which he might acquire in that capacity (o), as we have seen (p). Besides the above liabilities of the husband, he was bound to maintain his wife and to supply her with necessaries suitable to her station in life (q). The burdens with which the husband was thus Fraud on the chargeable were regarded as the consideration which ,|"fi''i.i^"i'^ "* he paid for his marital rights in his wife's property, rights. It was therefore a rule of law, that the husband should not, previously to the marriage, be defrauded of those rights by his intended wife (r). Accordingly, if the wife, after an engagement to marry, assigned away any of her property without the knowledge and consent of her intended husband, such assign- ment was void, as a fraud on his marital rights (s). And the circumstance of the intended husband's being ignorant of her possession of the property in question was immaterial (t). The right of the husband to the whole of his wife's The husband personal estate, in the event of her decease in his life- ^^^ his^wife time, might be waived by his giving her authority to dispose of ' ° JOG ''her personal (m) See Williams' Conveyanc- 394, 398 ; Solborne, ('., ,s'. C, (i ^s^'Ue by ing Statutes, 399, 432, 433. App. Cas. 24, 31 ; Blackburn, '^^^ ^^'"'• (n) See //;., 399, 400, 401, 433, L. A., (6., 35, 36. and n. (u) ; Cuenod v. Leslie, (r) Countess of Strathmore v. ubi sup. Bowes, 1 Ves. jun. 22, 28 ; 1 (o) See ib., 4.56. R. R. 70. If) Ante, p. 538. (s) England v. Doions, 2 Beav. (q) See Manly x. Scott, 1 Sid. 522; Tai/lor v. Pitgh, 1 Hare, 109, 120, 124, 125 (^'.C, 2 Smith, 608; Pridtmix v. Lonsdale, 4 L. C.) ; Bayley, J., Montague v. Giff. 159 ; 1 J)e G., J. & S. 433 ; Benedict, 3 B. & ('. 631, 635; Doivn€sv.Jennings,32Boav. 290. 27 R. R. 444 ; Bramwell, L. J., (0 Goddard v. Snow, 1 Russ. Debtnham v. Mellon, 5 Q. B. D. 485 ; 25 R. R. 111. w.p.p. 35 646 OF PERSONAL ESTATE GENERALLY. to dispose of sucli estate, or any part of it, by her will ; and such a will was valid and binding on the husband if he once allowed it to be proved (u). But during the wife's lifetime, and even after her death, until probate of the will, this authority might be revoked ; and if the husband died before the wife, such a will was not binding on the wife's next of kin (x). Wife's sepa- So far we have mainly considered the rights in ecniity^ arising out of the relation of husband and wife at common law. Let us now examine the rights which could be asserted by married women in Courts of equity. We have already noticed the wife's equity to a settlement (y). Besides this right, the jurisdic- tion of the Court of Chancery secured to married, women other most important equitable rights in respect of property (2;). For that Court enabled a married woman to enforce a trust imposed on any' person with regard to property of any kind, ot which he was the legal owner, to hold and apply the same for her separate use (a). And in that Court she was considered as a feme sole with respect to her se/parate estate, as her interest in property settled on trust for her separate use was generally called (6). Power to dispose of the equitable interest (c) in pro- perty of any kind might, therefore, be given to a married woman, independently of her husband, by means of a trust for her separate use. When personal estate was so given, in equity the wife had the same powers of ownership as if she were a feme sole ; she might accordingly dispose of her interest in such [u) 1 Roj). Husb. cand Wife, v. Outrarn, 5 Ch. D. 923, 94L 169,170. iice Re Atli7ison,\Sm, [a) Bennet v. Davis, 2 P. W. 2Ch. 1. 386. See Williams' Conveyanc- {x) 15 Ves. 156 ; Noble v. Wil- ing Statutes, 374, 396. lock, L. R. 8 Ch. 778 ; L. R. (b) See Johnson v. Gallagher, 7 H. L. 580. 3 l)e Gex, F. & J. 494 ; Taylor v. iy) Ante, p. 539. Meads, 4 De Gex, J. & S. 597- (z) See James, li. J., Ashtcorih (c) See ante, p. 26. I OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 547 property without her husband's concurrence, either in her Hfetime or by her will {d). But if she died in his hfetime without having made any disposition, her husband became entitled to it either in his marital right (e) or as her administrator (/), according as the property were in possession or in action {g). A trust for a woman's separate use was properly and technically created by means of the words " separate use." But a direction that her receipt alone should be a sufficient discharge (h), would also create a trust for her separate use. A gift, however, to a woman for her sole use was decided not to create a trust for her separate use, unless aided by the con- text (i). And a gift to a woman for her own use (k), or to be paid into her proper hands (/), or even to be paid into her proper hands for her own proper use and benefit {m), was not sufficient to exclude the rights of her husband. A simple gift of property for a married woman's (Ufts of separate use has not been so usual as the gift of the "^^^^'"^ ^"^ ^ ° a woman s income only of the property during her life or during separate use. the joint lives of herself and her husband. A gift of the income of property for a woman's separate use might be made either after her marriage, or in con- templation of marriage, or wliilst she was sole ; and the gift might be made either independently of her present husband, if any, or of any future husband. (d) Fclliplace v. Gorges, 1 Ves. (i) Massy v. Hayes, L. R. 4 jiin. 40 ; 1 R. R. 79 ; .S'. C. 3 Bro. H. L. 288 ; Gilbert v. Lewis, I C. C. 8 ; 2 Rop. Husb. and Wife, De Gox, J. & S. 38. See Seton 182. on Judgments, 859, 7th ed., and (e) Molony v. Kennedy, 10 the cases there cited ; Bland v. Sim. 254 ; Tugman v. Hopkins, Dawes, 17 Ch. D. 794. 4 Man. & Uran. 389. (k) Roberts v. Spicer, 5 Madd. (/) Watt V. Watt, 3 Ves. 240, 491 ; Kensington v. Dollond, 2 247 ; Froudley v. Fielder, 2 My. My. & K. 184. & Keen, 57. (I) Tyler v. Lake, 2 Russ. & {g) See Williams' Conveyanc- Myl. 183 ; 34 R. R. 53. ing Statutes, 452 — 454. (/«.) Blackloio v. Laws, 2 Hare, (h) Lee v. Prideaux, 3 Bro. 49. C. C. 381. 35—2 548 OF PERSONAL ESTATE GENERALLY. When the gift wag made to a woman's separate use, independently of any future husband, then in equity the act of her marriage conferred no interest in the property on her husband, but she enjoyed, after marriage, the same interest and power of disposition Bcstiaint on as she had before {n). It has been, however, more anticipation, ^sual, when the income only of property has been given to a wife's separate use, to insert a condition that she shall not dispose of the same in any mode of anticipation. Conditions restraining the alienation of property are generally invahd, as being contrary to the policy of the law. But the Courts of Equity made an exception to this rule in favour of married women, and having once established a trust for a woman's separate use, they permitted such a trust to be made effectual by depriving the wife herself of the power of disposition (o). When the income of pro- perty was given to a woman's separate use, without power of anticipation, she was not thereby deprived of the power of alienation so long as she continued single (p). Previously to or in contemplation of marriage she might therefore make such disposition or settlement of such income as she might think proper. But if she married without a settlement, the restraint on alienation then attached, and so long as she remained under coverture she had no further power than that of receiving the income as it grew due (g). On her widowhood her power of alienation (n) Tullett V. Armstrong, 1 (o) Brandon v. Robinson, 18 Beav. 1; 4 Myl. & Cr. 390; Ves. 434 ; 11 R. R. 226; i?o6msow Scarborough v. Borman, 1 Bcav. v. Wheelwright, 6 De Gex, M. & G. 34 ; 4 Myl. & Cr. 377. If the 535 ; and see Bateman v. Faber, gift were made to the woman 1898, 1 Ch. 144. directly for her separate use, {p) Woodnieston v. Walker, 2 without the intervention of Russ. & Myl. 197 ; 34 R. R. 56 ; trustees, the husband acquired Brown v. Pocock, 2 Russ. & Myl. his marital rights in the property 210. at law, but was in equity a {q) Tullett v. Armstrong, 1 trustee thereof for her separate Beav. 1 ; 4 Myl. & Cr. 390 ; use ; Bennet v. Davis, 2 P. W. Scarborough v. Borman, 1 Beav 316 ; Newlavds v. Payvter, 10 34 ; 4 Myl. & Cr. 377 ; Clive v. Sim. 377, 4 My. & Cr. 408, 418 ; Carew, 1 John. & H. 199. Gardner V. Gardner, 1 Giff. 126. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 549 again revived (r) ; but it ceased on her second marriage without having previously made any dis- position {s), provided the restriction on aHenation were not, by the terms of the gift, confined to her first marriage {t). The intention to restrain aHena- tion ought always to have been clearly expressed. A direction to pay the income of property into the hands of a married woman, and not otherwise {u), or on her personal appearance and receipt (x) was held not to be sufficient to restrain her from disposing of her interest, the words being considered as intended only to exclude the marital claims of her husband. But if an intention could be collected from the terms of the instrument, not only to exclude the husband's claims, but also to prevent the wife from anticipating, such intention was allowed to prevail, although it might have been expressed rather in popular than in strictly technical language {y). A Rostramt on restraint on anticipation may be attached to a gift JJ^UchTd^to of the corpus of some fund, of the nature of personal gift of corpus estate, for the separate use of a married woman, so property, as to prevent her from alienating the fund, or the income thereof, during her coverture, otherwise than by will {z). But if a mere fund of money, not pro- ducing income, be given for the separate use of a married woman, with a restraint on anticipation, it appears that, unless the donor should also have declared an intention that she should enjoy the income only of the fund during her coverture, she (r) Barton v. Hrixcof, Jacob, (y) Brown v. Bnmford, 1 Phil. 603. 020 ; Moore v. Moore., 1 Coll. .54 ; (s) Tidleit V. Armstrong, ubi Ilarrop v. Howard, 3 Hare, 624; supra: Re. Gaffre, 1 Mac. & (}. JIarnett v. Mardougall, 8 Boav. 541; Ilawkes V. Hul>hark,Jj. R. 187; Field v. Evans, 15 Sim. 11 Eq. 5. 375 ; Baker v. Bradley, 7 Dc Gcx, (t) Moore v. Morris, 4 Drew. M. & G. 597 ; Oouldcr v. Cainm, 33. 1 De Gcx, F. & J. 146. Sec Fitoq- (u) Acton V. White, 1 Sim. & don v. Lee, 1891, 1 Q. B. 661. Stu. 429 ; 24 R. R. 203. (2) Soo Re Carrey, 32 Gh. D. (.r) Ross's Trusts, 1 Sim. N. S. 361 ; Re Grei/s Settlements, 34 196. Ch. D. 85, 712. 550 OF PERSONAL ESTATE GENERALLY. will be entitled to have the money paid to her, and to dispose thereof as she may think fit {a). Under the Conveyancing Act, 1881 (6), a married woman might, if it appeared to the Court to be for her benefit, obtain an order of the Court enabling her to deal with any property of hers, notwithstanding that she M^ere restrained from anticipation. This provision is now replaced by the above quoted enactment of the Conveyancing Act, 1911 (c). Contract by married woman. General engagements binding separate estate. Powers. By the common law, a married woman was, as a general rule, incapable of binding herself by con- tract, and any contract, which she purported to make, was void as against her {d). In equity, how- ever, a married woman had power to bind any separate estate (e), to which she was entitled without restraint on anticipation, by any general pecuniary engagements made by her with reference to such separate estate. And satisfaction of any such engagement could be enforced in a Court of ec[uity out of any separate estate, to which she was entitled, without restraint on anticipation, at the time when she entered into the engagement (/). In addition to trusts for separate use, powers of appointment might, as we have seen {g), be given to married women independently of their husbands, by means of which they might be enabled to dispose of property without their husband's concurrence ; and any appointment under a general power might be (a) See Re Ellis's Tnists, L. R. 17 Eq. 409 ; Re Croughton's Trusts, 8 Ch. D. 4C0; Re Clarke's Trusts, 21 Ch. D. 748 ; Re Bown, O'Halloran v. Kmg, 27 Ch. D. 411 ; Re Tippetts and Newbould's Contract, 37 Ch. D. 414. As to the effect of a restraint on antici- pation attached to a gift of real estate of inheritance, see Bagrjott V Meux, 1 Ph. 627. (b) Stat. 44 & 45 Vict. c. 41, s. 39 ; see Re Pollard's Settlement, 1896, 2 Ch. 552; Re Blundell, 1901, 2 Ch. 221. (c) Ante, p. 544. (d) Ante, p. 174. (c) See ante, p. 546. (/) See Williams' Conveyanc- ing Statutes, 393, 394, 395, 414, and the cases there cited ; Re Lady Hastings, 35 Ch T). 94. (g) Ante, pp. 406, 546, 547. I OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 551 made by a married woman in favour of her Imsband, as well as of any other person. In modern times the inconvenience of the common Marriage law rules respecting the property of married women ^^"lemenfcs. was obviated in practice, amongst well-to-do people, by the custom of making a settlement in contem- plation of marriage. Such settlements were made possible by the modern rules of equity before re- ferred to (h), which enabled interests for hfe and in remainder to be created in any personal estate placed in the hands of trustees, and which enforced trusts for the separate use of married women. When personal property was settled on the part of an intended wife previous to her marriage, it was generally transferred to trustees, upon trust for investment and to pay the income of the invested funds for her separate use during the coverture, without power of anticipation (^). A provision was thus secured for her which was inalienable by any act or engagement either of her husband or herself ; except, since the Conveyancing Act of 1881, with the approbation of the Court (k). After the deter- mination of the coverture, the income of the settled funds was usually given in trust for the survivor of the husband and wife for life. After the death of the survivor, the capital and income of the trust funds were given in trust for the children or issue of the marriage in such shares as the parents, or the survivor of them, should appoint (I), and in defaidt of appointment for the children in equal shares, as to sons on their attaining the age of twenty-one, as to daughters on their attaining that age or marrying under it (m). In default of the children of the marriage, any personalty settled on the part of an {h) Ante, pp. 3t)5— 3'J7, u4<3. (/) Anlc, pp. 400—416. (i) Anle, pp. 548—550. (m) Ante, p. 415. (A) Anle, ]>p. 544. 5.50- 552 OF PERSONAL ESTATE GENERALLY. intended wife was commonly given in trust for her absolutely, if she should survive her husband, but if he should survive her, then upon trust for such pur- poses as she should by will appoint {n), and in default of appointment for her next of kin, so as to exclude her husband from succeeding to the whole of the settled funds as her administrator (o). And the event of the acquisition by the wife of further property during the marriage was frequently pro- vided for by an agreement for the settlement of such property upon the same trusts (p). In most marriage settlements of personalty a certain amount of property was settled on the part of the intended husband as well as of the intended wife. In such cases the property settled on the husband's part was most frequently limited in trust for himself for life, then for his wife for her life, if she should survive him, with remainder to the children as in the case of pro- perty settled by a wife. But in default of children, it was the practice to limit any property settled by the husband in trust for himself absolutely, whether he survived his wife or not ; for it was not considered necessary to exclude the wife from her widow's share in his personalty in case he should die in her lifetime intestate and without children. And as the widow's share upon intestacy was the only interest given by law to a wife in her husband's personalty (q), there was no reason for any agreement for the settlement of property to be afterwards acquired by the hus- band ; and such agreements were quite uncom- mon (r). Here it may be noted that, although the Married Women's Property Act, 1882, has made great changes in the law of husband and wife, it has had little or no effect upon the custom of making (?i) Ante, Y). 40G. trusts usual in settlements of per- (o) A^ite, p. 524. sonalty, see Davidson, Prec. ip) Anfr, p. 4.31. Conv., iii. pp. 68—220, 3rd ed. ; Iq) Ante, Y>. 533. Williams on Settlements, 123— (r) Ante, p. 433. As to the 169. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 553 settlements before marriage. And the trusts, upon which it is usual so to settle property, are substan- tially the same as were in use before the Act. A form of marriage settlement of personalty, con- taining the usual clauses, is inserted in the Appen- dix ; and if the reader will peruse this, he will see how such settlements are now carried out in practice. Under the Infant Settlements Act, 1855 (s), every Infant's infant not under twenty, if a male, and not under "ettlenfents. seventeen if a female, was enabled to make a binding settlement, upon marriage, of his or her property, whether real or personal, provided the sanction of the Court of Chancery were obtained. This sanction must now be given by the Chancery Division of the High Court (t). Apart from the provisions of this Act, a marriage settlement made by an infant is, as a rule, voidable at his or her option within a reasonable time after coming of age (u). But in consequence of the common law, which made an absolute gift to the husband of his wife's choses in possession (x), when the intended wife only was an infant, a settlement made by her and her intended husband of her per- sonal estate in possession was valid. For the settle- ment in such a case was in fact not made by the wife, but by the husband, who, being adult, was bound by its provisions to the extent of the interest, which he would have taken had no settlement been made (y). For the same reason a settlement executed by a female infant and her intended husband of her choses in action, or her personalty to bo afterwards acquired, could not be avoided by her with respect (*•) Stat. 18 & 19 Vict. c. 43, (0 Anlc. ji. 161. extended to the Court of Chan- {it) Ante, pp. 101, 173 ; 2Win.s. eery in Ireland by 23 & 24 Vict. V. & P. 871. and n. (,n), 2nd cd. 0. 83. See Kc DnHon, 6 Do G., (x) Anfr. p. 535. M. & G. 201 ; Sealon v. Beaton, (y) TroUope v. Lintori, 1 S. & S. 13 App. Cas. 61 ; 2 Wms. V. & P. 477, 485 ; 24 R. R. 211. 791. 554 OF PERSONAL ESTATE GENERALLY. to such choses in action or personalty as fell into possession during the coverture {z) : but she might avoid such a settlement after the coverture had come to an end, with regard to her choses in action, which had not been reduced into possession {a). When a female infant has covenanted to settle any property, which she may acquire after marriage, it is within her own choice either to confirm or avoid the settle- ment with regard to any separate estate (6) or pro- perty which she may afterwards acquire ; and if she take no steps to avoid the covenant within a reasonable time after attaining her majority, it will remain binding on her. But if she elect to avoid her contract, any beneficial interest given to her by the settlement in any other property, except such as she is restrained from anticipating (c), is liable in equity to be impounded to compensate any other persons entitled under the settlement, who would suffer damage by her avoidance of her covenant (d). 1 I I Married Women's Property Act, 1870. Although the rules of equity, which secured to married women the enjoyment of their separate estate (e), afforded a substantial protection against the rigour of the common law, their aid could not be invoked unless a trust for the separate use of a wife had been created. And such trusts could only (z) Sec ante, pp. 536—543. (a) Ellison v. Elunn, 13 Sim. 309 ; Le Vasseur v. Scratton, 14 Sim. 116. (b) Ante, p. 546. (c) See Re VardorCs Trusts, 31 Ch. D. 275 ; Haynes v. Foster, 1901, ICh. 361. (d) See Smith v. Lucas, 18 Ch. I). 531 ; Wilder v. Pigotl, 22 Ch. D. 263 ; Hamilton v. Hamilton, 1892, 1 Ch. 366; Edwards v. Carter, 1893, A. C. 360 ; Viditz v. O'Hagan. 1900, 2 Ch. 87, 96—98, 100. It has also been held that a female infant entering into such a covenant may elect, on attain- ing full ago, to confirm or avoid it, although she be then under coverture and be entitled to the property to be bound by the covenant at common law, and not as her separate estate, and although there be no question of her election between that pro- perty and other property given to her by the settlement ; Be Hodson, 1894, 2 Ch. 421. But the writer has endeavoured else- where to show that this decision was given on erroneous prin- ciples ; see 2 Wms. V. & P. 940— 942 and n. (;:), 2nd ed. (e) Ante, ])p. 546—550. OP THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 555 arise by the express declaration either of the husband or of the parties from whom the wife derived her title to any property. But by the Married Women's Property Act, 1870 (/), certain particular kinds of property were declared to belong to married women for their separate use, independently of the existence of any express trust for that purpose (g). This Act (/) Stat. 33 & 34 Vict. c. 93, passed 9th Aug., 1870. ((j) These were (1) the wages and earnings of any married woman acquired or gained by her after the passing of the Act in any employ- ment, occupation, or trade, in which she was engaged or which she carried on separately from her husband, and any money or property so acquired by her through the exercise of any lit«rary, artistic, or scientific skill, and all mvestments of the same ; sect. 1 ; see Ash- worth V. Outran!, f) Ch. I). 923 ; Re Poole:.s Estate, 6 Ch. D. 739 ; Lovell V. Newton, 4 ('. P. J). 7. (2) Any personal estate, to which any woman married after the passing of the Act, should become entitled during her marriage as one of the next of kin of an intestate. (3) Any sum of money, not excoedmg 200L. to which any woman married after the passing of the Act should become entitled during her marriage under any deed or will ; sect. 7 ; see Howard v. BanJ; of England., L. R. 19 Eq. 295; Re Voss, 13 Ch. D. 504. (4) The rents and profits of any freehold, copyhold, or customaryhold pro- perty, which should descend upon any woman married after the passing of the Act as heiress or co-heiress of an intestate ; sect. 8 ; see WilHams, R. P. 316, 317 and n. {'p), 21st cd. In the last three cases, however, the property was only to belong to the wife for her separate use subject and without prejudice to the trusts of any settlement affecting the same ; see sects. 7 and 8. (5) Any deposit or annuity made or granted after the Act, under the Savings Banks and Post Office Savings Banks Acts, in the name of a married woman or of a woman who afterwards married ; sect. 2. The Act also gave to any married woman, or any woman about to be married, the right to have the following properties made to stand, or registered or entered in her name, or intended luimo, as a married woman entitled to her separate use, and declared that any property so made to stand, registercid or (Mitorod should bo deemed to bo her separate projjerty and should bo transferable, and tint dividends and profits thereof payable, as if she were an unmarried woman, viz. — (6) Any sum not less than 201., forming part of the public stocks or funds, to which she was entitled ; sect. 3 ; sec Re Butlin's 7Wusts, 19 W. R. 24:1 ; Howard V. Bank of England, L. R. 19 Eq. 295. And see stats. 40 & 41 Vict, c. 51, s. 19 ; 42 & 43 Vict. c. 43, s. 10. (7) Any fully paid-up shares or any debenture or debenture stock, or any stock of any incorporated • or joint stock comi)any. to the holding of which no liability was attached, and to which she was ontithui ; sect. 4 ; see 7^ v. Carnalic Rail Co., L. R. 8 Q. B. 299. (8) Any share, benefit, debenture, right or claim whatsoever in, to or upon the funds of any industrial and provident society, friendly society, benefit building society, or loan society, duly registered, certified or enrolled under the Acts relating to such societies respectively, to the holding of which share, benefit, or debenture no hability was attached, and to which she was entitled ; sect. o. 556 OF PERSONAL ESTATE GENERALLY. further gave to a married woman the right to main- tain an action in her own name for the recovery of any property by the Act declared to be her separate property, or of any property belonging to her before marriage, and which her husband should, by writing under hie hand, have agreed with her should belong to her after her marriage as her separate property ; and gave to her the same remedies, both civil and criminal, in her own name, for the protection and security of such property, as if the same belonged to her as an unmarried woman {h). But it was held that this Act did not confer on a married woman any general capacity to bind herself by con- tract, or to hold property, independently of her husband, at laiv (i). Liabilities of husbands under Mar- ried Women's Property Acts, 1870 and 1874. (h) Sect. 11 ; see Summers v. England, L. R. 19 Eq. 295, 300, City Bank, L. R. 9 C. P. 580 ; 301. Jessel, M.R., Howard v. Bank of (i) See Williams' Conveyancing Statutes, 377—382. The Act rendered a wife, having separate property, liable to an order of justices for the maintenance of her husband, if he became chargeable to any union or parish ; and subjected her to the same liability as a widow for the maintenance of her children ; sects. 13, 14. The same Act pi'ovided that a husband should not by reason of any marriage which should take place after the Act had come into operation, be liable for the debts of his wife contracted before marriage, but the wife should be liable to be sued for, and any property belongmg to her for her separate use should be liable to satisfy such debts as if she had continued unmarried ; see ante, p. 534 ; stat. 33 & 34 Vict. c. 93, s. 12; Sanger v. Sanger, L. R. 11 Eq. 470; London and Provincial Bank v. Boyle, 7 Q. B. D. 337 ; Mercier v. WUliams, 9 Q. B. D. 337 ; 10 App. Cas. 1 ; Williams' Conveyancing Statutes, 436. This provision was. however, repealed bj^ the Married Women's Property Act, 1874, so far as it removed a husband's liability for his wife's ante-nuptial debts, and as respects marriages after the passing of that Act ; and it was enacted that a husband and wife married after the passing of that Act might be jomtly sued for any such debt ; stat. 37 & 38 Vict. c. 50, s. 1, passed 30th July. 1874 ; see De Greuchy v. Wills, 4 C. P. D. 362 ; Matthews v. Whittle, 13 Ch. D. 811 ; Williams V. Mercier, 10 App. Cas. 1 ; Doivne v. Fletcher, 21 Q. B. D. 11 ; Axford V. Reid, 22 Q. B. D. 548. But the liability of the husband in any such action and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, was limited to the value of his interest in any property which he had acquired in right of his wife at common law or from her by settlement in contemplation of the marriage, and of any propert}^ real or personal, which the wife in contemplation of marriage should, with the husband's consent, have transferred to any person with the view OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 557 § 2. Under the Married Women's Property Act, 1882, The Married Women's Property Act, 1882 {k), Married came into operation on the 1st of January, 1883 (/), property and, unUke the Act of 1870, completely changed the Act, ]882. capacity of married women with respect to property. By this Act (m), a married woman is capable of acquiring, holding, and disposing by will or other- wise of any real or personal jDroperty {n) in the same manner as if she were a feme sole, without the inter- vention of any trustee. Every woman, who marries after the commencement of the Act, is entitled to hold and dispose of, as her separate property, all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage (o). Every woman married before the commencement of the Act is entitled to hold and dispose of, as her separate pro- perty, all real and personal property, to which her title shall accrue after the commencement of the Act (p). The general effect of these provisions is to invest married women with a special capacity of acquiring and exercising legal rights of ownership, apart from their husbands (g), in respect of any pro- perty, which becomes their separate property by virtue of the Act (r) ; and to deprive a husband of of defeating or delaying lier existing creditors ; see ante, pp. 544, 545 ; sects. 2 — 5 ; Fear v. Cadle, 8 Q. B. D. 380. The above-mentioned Acts of 1870 and 1874 were repealed by the Married Women's Pro- perty Act, 1882, but without jjrejudice to any act done or right acquired while either of the repealed Acts was in force ; and the liability of husbands married before the 1st of January, 1883, in respect of their wives' ante-nuptial contracts and torts was not affected by such repeal ; see stat. 45 & 46 Viet. c. 75, ss. 14, 22 ; Williams' Conveyancing Statutes, 422 — 444, 449. {k) Stat. 45 & 46 Vict. c. 75, (p) Sect. 5. Reversionary in- amended by 56 & 57 Vict. terests given to wives before the c. 63. Act but falling into jiossession (/) Stat. 45 & 46 Vict. c. 75, after the Act are not their s. 25. separate projicrty ; licid v. Reid, {m) Stat. 45 & 46 Vict. c. 75, 31 Ch. D. 402 ; Be Bacon, 1907, s. 1, subs. 1. 1 Ch. 475. (?i) Including things in action ; (q) Cf. ante, pp. 533, 634, 640, 8. 24. 641. (o) Sect. 2. (r) See Be Price, 28 Ch. D. 558 OF PERSONAL ESTATE GENERALLY. all his common law marital rights {s) in respect of any personal property, which so becomes his wife's separate property (t), except only the right of administering and succeeding to her effects, in case she die intestate in his lifetime {u). It is, however, provided (x) that nothing in the Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman : and the construction placed upon this proviso was that such settlements were to have the same effect as if the Act had never passed. Thus, as we have seen {y), it was held that a covenant by a husband alone contained in a settlement made before the Act to settle his wife's after-acquired property would bind personal property, to which she might after the Act become entitled as her separate pro- perty, if not expressly given for her separate use. And it was also held that an ante-nuptial settlement made after the Act by an intended husband and infant wife of her personal estate in possession or in action should have the same effect as it would have had at common law (z), and was therefore com- pletely binding on the wife as regards her choses in 709 ; Re Cuno, 43 Ch. D. 12 ; perty at the time of making it, deciding that a will made by a and need not be re-executed after wife during coverture of her sepa- her husband's death ; Re Wylie, rate property was not effectual 1895, 2 Ch. 116 ; Re Jameii, 1910, by virtue of "the Act to pass pro- 1 Ch. 157. And see Re Diven- perty acquired by her after her poH, 1895, 1 Ch. 361. husband's death. These deci- {s) Ante, pp. 534 — 546. sions followed the law laid down (t) Wearmg apparel bought by before the Act iia the case of wills the wife with money supplied by made by wives of their separate the husband for the purpose is estate and not re-executed after now, prima facie, her separate their husband's death ; Willock property and not paraphernalia ; V. Noble, L. R. 7 H. L. 580. But Ilassoji, Templier d: Co. v. De now, by the effect of stat. 56 & 57 Fries, 1909, 2 K. B. 831 ; cf. ante, ■ Vict. c. 63, s. 3, the will of a p. 535. married woman made during (m) Ante, pp. 524, 537, 547. coverture is to take effect as if it (x) Stat. 45 & 46 Vict. c. 75, had been executed immediately b. 19. before her death, whether she (y) Ante, p. 432. had or had not any separate pro- {z) Ante, pp. 653, 654 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 559 possession (a), and Avith respect to such of lier things in action as should fall into possession during the coverture (b). But the law made by the above pro- vision of the Act of 1882 and these decisions was altered by the Married Women's Property Act, 1907 (c), as regards settlements or agreements for settlements made after that year by a husband or intended husband, whether before or after marriage, respecting the property of any woman he might marry or have married. And any such settlement or agreement is not to be vahd unless it is executed by the woman, if she is of full age, or confirmed by her after she attains full age : though if she dies an infant, any covenant or disposition by the husband contained in the settlement or agreement will bind or pass any interest in any property of hers, to which he may become entitled on her death, and which he could have bound or disposed of if that Act had not been passed (d). Estates or interests directly limited to a wife in a settlement made after the Act of 1882 become her separate property ; and there is no need to limit them to her separate use (e). The Act of 1882 (/) is not to interfere with or Restraint on render inoperative any restriction against anticipa- anticipation, tion attached, or to be thereafter attached to the enjoyment of any property or income by a married woman. A restraint on anticipation may therefore still be annexed to a gift or limitation in favour of a married woman of the capital or income of any pro- perty, and will have the like effect as under the. (a) Slevens v. Trevor-Garrick, agreement for a settlement niado 1893, 2 Cli. 307. or to be made under the Infant {b) BucHand v. Buckland, Settlements Act, 1855 {ante, 1900, 2 Ch. 534. p. 553). (c) Stat. 7 Edw. Vll. c. 18, (e) lie Lumley, 1896, 2 Ch. 690. ss. 2, 4. (/) Stat. 45 & 46 Vict. c. 75, (d) Sect. 2, which is not to s. 19. render invalid any Kettlemcnt or 560 OP PERSONAL ESTATE GENERALLY. previous law (g). But when it is intended to restrain a married woman from alienating any pro- perty so given to her, the corpus or capital thereof should be vested in trustees, who should be directed to pay her the income only, and power to anticipate the payment of either capital or income should be expressly withheld from her. For if a married woman were to be invested Avith the whole legal ownership of any property, of which she was re- strained from anticipating the income, she might be enabled to dispose of her legal ownership to a purchaser without disclosing the existence of the restraint ; and as the restraint on wives' alienation is a provision of equity and not of law (h), it appears that, if a purchaser for value were to obtain the legal ownership of the property in good faith without notice of the restraint, he would be entitled to retain it (^). As to the interest of a married woman in deposits in banks, annui- ties, stocks, and shares. By the Act of 1882, all deposits in any post office or other savings bank, or in any other bank, all annuities granted by the Commissioners for the Reduction of the National Debt or by any other person, and all sums forming part of the pubhc stocks or funds, or of any other stocks or funds transferable in the books of the Governor and Com- pany of the Bank of England, or of any other bank, which at the commencement of the Act were standing in the sole name of a married woman, and all shares, stock, debentures, debenture stock, or other interests of or in any corporation, company, or pubUc body, municipal, commercial, or otherwise, or of or in any industrial, provident, friendly, benefit, building, or loan society, which at the commencement of the Act were standing in her name (k), are to be deemed. (g) Ante, p. 648 ; see Be Lum- ley, 1896, 2 Ch. 690; Be Wheeler's Settlement, 1899, 2 Ch. 717. (h) Ante, p. 648. (i) See ante, p. 27. (k) See ante, p. 555, note (g). OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 561 unless and until the contrary be shown, to be the separate property of such married woman (1). Any similar property which after the commencement of the Act shall be allotted to or made to stand in the sole name of any married woman shall be deemed, unless and until the contrary be shown, to be her separate property in respect of which, so far as any liability may be incident thereto, her separate estate shall alone be liable. But nothing in the Act shall require or authorise any corporation or joint stock company to admit any married woman to be a holder of any shares or stock therein to which any liability may be incident, contrary to the provisions of any Act of Parliament, charter, bye -law, articles of association, or deed of settlement regulating such corporation or company (m). Like provisions are investments made with respect to any similar property at the o" ]°"rricd "^^ commencement of the Act, or afterwards standing or women and made to stand in the name of any married woman ° ^^^' jointly with any persons or person other than her husband (n). And it shall not be necessary for the Husband 1 1 1 n .1 • X r 1 need not join husband oi any married woman, m respect ot her j„ transfer. interest, to join in the transfer of any such property as aforesaid, standing in her name either solely or jointly with any other person or persons not being her husband (o). By the same Act, a married woman shall be cap- Contracts by, able of entering into and rendering herself liable in and°ai^iinst, respect of and to the extent of her separate property a»<^l liabilities on any contract, and of suing and being sued, either women. in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding (1) Stat. 45 & 4G Vict. c. 75, (n) Sect. 8. 8. 6. (o) Sect. 9. (m) Sect. 7. w.p.p. 36 562 OF PERSONAL ESTATE GENERALLY. brought by or taken against her ; and any damages or costs recovered by her in any such action or pro- ceeding shall be her separate property ; and any damages or costs recovered agamst her in any such action or proceeding shall be payable out of her separate property, and not otherwise {p). Accord- ing to the judicial construction of this enactment, a married woman is not thereby enabled to render herself liable on any contract otherwise than in respect and to the extent of her separate property (q) . Consequently, although a breach of a wife's contract to pay money or a judgment against her for breach of her contract made under the Act will result in a debt (r) due from her (s), she does not incur thereby the same personal liabihty to pay as is incumbent on an indebted man or single woman {t). She cannot therefore be imprisoned under the Debtors Act, 1869 (u), for failure to satisfy any such judgment {x). Nor is she liable to be made bankrupt by reason of any such debt or judgment (y) ; except by special provision of the Act, in the case of her carrying on a trade separately from her husband (z). Under such a judgment, it has been held, execution shall only issue against the wife's separate property ; and as the Act is not to interfere with any restriction against anticipation (a), it has been held, by analogy to the previous law respecting a wife's general engagements (&), that the separate property which (p) Stat. 45 & 46 Vict. c. 75, Co., 1892, 2 Q. B. 626. s. 1, sub-s. 2. See as to torts (t) Be Turnbull, 1900, 1 Ch. against a wife : Weldon v. Win- 180, 184. slow, 13 Q. B. D. 784 ; Weldon (w) Ante, pp. 228—231. V. Be Bathe, 14 Q. B. D. 339 ; (x) Scott v. Morley, 20 Q. B. D. Lowe V. Fox, 15 Q. B. D. 667. 120. (q) Scott V. llorley, 20 Q. B. D. (y) Re Gardiner, 20 Q. B. D. 120. 249 ; not even after the cover- (r) Ante, pp. 31, 162, 213. ture has ceased ; Re Hewett, (s) See Holthy v. Hodgson, 24 1895, 1 Q. B. 328. Q. B. D. 103; Jay v. Robinson, (z) Ante, p. 261 ; see Re Hand- 25 Q. B. D. 467 ; Pelton v. Harri- ford, 1899, 1 Q. B. 566. son, 1892, 1 Q. B. 118; Lady (a) ^nply to a court Q. B. D. 432. As to the case of of summary jurisdiction and a separation by agreement, of obtain an order for him to pay to which the husband has not her or for her use such weekly observed the terms, see Ozard v. sum not exceeding 21. as the Darnford, 1 Selwyn N. P. 229, court shall, having regard to the 13 ed. ; Nurse v. Craig, 2 Bos. & means both of the husband and P. N. R. 148. the wife, consider reasonable ; (a) Stat. 45 & 46 Vict. c. 75. see Earnshaiv v. Earnshaiv, 1896, (6) See an/e, p. 545. P. 160; Cohb v. Cohb, 1900, P. (c) See Pa^uin v. Beauclerk, 294 ; Hill v. Hill, 1902, P. 140 1906, A. C. 148. Any sum so ordered to be paid {d) See Wilson v. Glossop, 20 cannot be attached by the wife's Q. B. D. 354. Under stats. creditors ; Paquine v. Snary, 58 & 59 Vict. c. 39, and 2 Edw. 1909, 1 K. B. 688. VII. c. 28, B. 5 (1), a married (e) Stat. 56 & 57 Vict. c. 63, woman, whose husband has been s. 1 ; aMe, p. 563. convicted of a serious assault on causes. 576 OF PERSONAL ESTATE GENERALLY. not aware that she was a married woman (/). If a married woman, possessed of separate property, con- tract for necessaries subsequently to the Act of 1893, it appears that the onus hes on the other contractor of proving that she contracted in respect of her separate property and not as her husband's agent. § 3. 0/ Judicial Separation and Divorce. Matrimonial The ecclesiastical courts, which, as we have seen (g), formerly had jurisdiction in causes relating to the validity of a will or the administration of the effects of an intestate, also had jurisdiction over matrimonial causes. Of these the principal were suits for the restitution of conjugal rights, or to compel a husband or wife, who had withdrawn from cohabitation with the other, to return thereto ; suits for nullity of marriage, where the marriage was either void, as in the case of an existing previous marriage, or voidable, as in the case of impotence ; and suits for a divorce a mensa et thoro for adultery or cruelty (Ji). By the Matrimonial Causes Act, 1857 {i), the jurisdiction of the ecclesiastical courts over matrimonial causes (k) w^as transferred to a new Court, called the Court for Divorce and Matri- monial Causes. By this Act {I), a sentence of judicial separation, obtainable by either husband or wife on the ground of adultery, cruelty, or two years' desertion without cause, was substituted for the ancient decree for a divorce a mensa et thoro, I (/) Paquin v. Beauderk, 1006, 23 & 24 Vict. c. 144 ; 25 & 26 A. C. 148, diss. Lords Robertson Vict. c. 81 ; 29 & 30 Vict. c. 32 ; and Atkinson. 31 & 32 Vict. c. 77 ; 36 Vict. ig) Ante, pp. 476, 515. c. 31 ; 41 Vict. c. 19 ; 47 k 48 [h) 1 Black. Comm. ch. 15 ; 3 Vict. c. 68. Black. Comm. 92 — 94 ; Burn's {];) Except in respect of mar- Eccl. Law, ii. 500, 9th ed. riage licences ; stat. 20 & 21 Vict. (i) Stat. 20 & 21 Vict. c. 85, c. 85, ss. 2, 6. ss. 2, 6. This Act has been {I) Sects. 7, 16, 17; 21 & 22 amended by stats. 21 & 22 Vict. Vict. c. 108, s. 19 ; see Armytage c. 108 ; 22 & 23 Vict. c. 61 ; v. Armytage, 1898, P. 178. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 577 with the same force and consequences. And the new Court was further empowered to pronounce a decree for dissolution of a marriage on the ground, prin- cipally, of adultery on the part of the wife, or of adultery coupled with cruelty or two years' desertion without excuse on the part of the husband (m). But every such decree is required to be in the first instance a decree nisi, or provisional on cause to reverse it not being shown, and is not to be made absolute, as a rule, within six months after it has been pronounced {n). Before the Act of 1857 took effect, dissolution of a marriage on the ground of aaultery could only be obtained by Act of Parha- ment (o) ; so that the power of obtaining a divorce was practically enjoyed by the richer classes only. In 1875, as we have seen {p), the jurisdiction of the Court for Divorce and Matrimonial Causes was transferred to the High Court of Justice, and matters, which were previously withm its exclusive cog- nizance, were assigned to the Probate, Divorce, and Admiralty Division. Both judicial separation and divorce have important consequences with regard to the property of the parties concerned. In the first place, where application for judicial Alimony. separation is made by the wife, the Court may make any order for ahmony which may be deemed just (q). Alimony is an allowance ordered to be paid by the husband for the separate maintenance of the wife, and was formerly decreed of ecclesiastical jurisdic- tion only {r). The grant of alimony, though now (m) Stat. 20 & 21 Vict. c. 8.5, iliU, 11 App. Cas. 21)1. 8s. 27—31. (p) Ante, pp. 160, 225, u. (/), (w) Stat. 23 & 24 Vict. c. 144, 489. 8. 7, made perpetual by 25 & 20 {q) Stats. 20 & 21 Vict. c. So, Vict. c. 81, and amended by ss. 17, 24; 21 & 22 Vict. c. 108, 29 & 30 Vict. c. 32. s. 1 ; see Judkins v. Judlcins, (o) 1 Black. Comm. 429 ; Wll- 1897, P. 138. kinson v. Gibson, L. R. 4 Eq. (/) See 2 Roper on Husb. and 162, 16G. This is still the law in Wife, p. 338, note (d), 2ud ed. Ireland ; see Wedropp's Divorce W.IM'. 37 578 OF PERSONAL ESTATE GENERALLY. Effect of judicial separation. made by the Divorce Division of the High Court, is still subject to the principles applied in the Ecclesiastical Courts (-s). Alimony is not assignable by the wife {t), nor is it liable, as her separate pro- pertjs to her debts (w). By the Matrimonial Causes Act, 1857, in every case of a judicial separation, the wife shall, from the date of the sentence, and whilst the separation shall continue, be considered as a feme sole with respect to property of every descrip- tion which she may acquire or which may come to or devolve upon her after the sentence (x) ; and such property may be disposed of by her in all respects as a, feme sole, and on her decease the same shall, in case she shall die intestate, go as the same would have gone if her husband had been then dead ; provided that, if any such wife should again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place shall be held to her separate use, subject, however, to any agree- ment in writing made between herself and her hus- band whilst separate (y). And in every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole for the purpose of con- V andergucht v. De Blacquiere, 8 Sim. .315 ; 5 My. & Cr. 229, 241 ; Stones V. Cooke, 8 Sim. .321, note ; Stat. 20 & 21 Vict. c. 85, s. 6 ; Gooden v. Gonden, 1892, P. 1. (.s) See Robins v. Robins, 1907, 2 K. B. 13, decidijig that no action lies in the King's Bench Division for arrears of permanent alimony ; Leslie v. Leslie, 1908, P. 99; Leslie v. Leslie, 1911, P. 203. A husband's liability to pay alimony cannot be barred hy his bankruptcy, Linton v. Linton, 15 Q. B. D. 2,39 ; Re Hawk-in.^. 1894, 1 Q. B. 25 ; cf. Victor v. Victor. 1912, 1 K. B. 247 (secusas to a husband's covenant in a separation deed). (t) Re Robinson, 27 Ch. D. 160. (u) Anderson v. Ladi/ Hay, 7 Times L. R 113. (.r) Waiu V. Morland, 38 Ch. D. 135 ; Re Hughes, 1898, 1 Ch. 529. She cannot therefore dispose as a, feme sole of property to which she was entitled, but V, as restrained from anticipatmg, at the date of the sentence ; Hill V. Cooper, 1893, 2 Q. B. 85. (y) Stat. 20 & 21 Vict. c. 85, s. 25, extended by 21 & 22 Vict, c. 108, ss. 7, 8, to property to which the wife has or shall become entitled as executrix, administratrix, or trustee since the sentence of separation, and to the wife's property in re- mahider or reversion at the date of the decree. See Re Insole, 35 Beav. 92; L. R. I Eq. 470; Johnson v. Lander, L. R. 7 Eq. 228 ; Dawes v. Crcyke, 30 Ch. D. 600. order. OF THE MUTUAL RIGHTS OF HUSBAND AXD WIFE. 579 tract and wrongs and injuries, and suing and being sued in any civil proceeding (z) ; and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her («), or for any costs she may incur as plaintiff or defendant ; provided that where upon any such judicial separation ahmony has been decreed or ordered to be paid to the Avife, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use (6) ; provided also, that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband (c). By the same Protection Act, a wife deserted by her husband may obtain an order to protect any money or property she may acquire by her own lawful industry and property which she may become possessed of after such desertion : and if such an order of protection be made, such earnings and property shall belong to the wife as if she were a feme sole, and the wife shall during the continuance thereof be. and be deemed to have been, during such desertion of her, in the like position in all respect, with regard to property and contra':'ts. and suing and being sued, as she would be under the sanie Act if she obtained a decree for judicial separation (d). And under an Act of (c) liainndrn v. Brcddey, I^. 11. s. 20. 10 Q. B. 147; Kc Hmjhes, 1898, {d) Stat. 20 & 21 Vict. c. So, 1 Ch. 520. s. 21, amended by statn. 21 & 22 (o) See Cmnod v. Lc4tc. 1000, Vict. e. 108, ss. (J— 10 ; 27 & 28 1 K. B. 880, deciding that, in an Vict. c. 44. See Re Kingnky's action against husband and wife Trnxis, 20 Beav. 84 ; Cooke v. for the wife's tort (ante. pp. . 100, Fuller, ih.. 90 ; Hf Whitdngham, 570), his lial)ility ceases if a 8 ; In the (Ij) Cf. p. 574, anl(': and <•.• f/oi>d.'< of Kllioll. L. R. 2 P. & M. ]Villsonv. Siiiyt/i. I B.& Ad.HOl : 274; Re Coward and Adam's Hunt V. De Bkirrjuiere. 5 Bing. Piiriha.se, L. R. 20 E(|. J 79; 550; 30 R. R. 7H7 ; Re W'in'j- y khohon v. Drury liudding field and Blew, 1901, 2 Ch. 00."). Estates Co., 7 Ch. D. 48. (c) Stat. 20 & 21 Vict. c. 85, 37—2 580 OF PERSONAL ESTATE GENERALLY. Separation order. 1895 (e), in the cases already mentioned (/), of the husband's conviction for a serious assault on his wife, his desertion of her (g), her being forced to leave him through his cruelty or neglect to maintain her, and his being a habitual drunkard, she may obtain from a court of summary jurisdiction an order that she be no longer bound to cohabit with him, and such order while in force shall have the effect in all respects of a decree for judicial separation on the ground of cruelty. In addition to the rights so conferred, wives, who have obtained a decree for judicial separation, or have been deserted by their husbands, now possess the rights conferred upon married women by the Married Women's Property Act, 1882 (h), and retain any rights which they may have acquired under the Married Women's Property Act, 1870 {i). Consequences of divorce. When a decree for the dissolution of a marriage has been made absolute, the parties are at liberty to marry again (k). And all the rights, which husband and wife enjoy in respect of each other's property, independent of settlement (whether in each other's lifetime or by way of succession after death), cease (e) Stat. 58 & 59 Vict. c. 39, ss. 4, 5, extended to the hus- band's habitual drunkenness by 2 Edw. VII. c. 28, s. 5 (1). By s. 5 (2) of the latter Act, a mar- ried man, whose wife is a habitual drunkard, may obtain similar orders against her. (/) Ante, p. 575, n. (rf). (g) See Heard v. Heard, 1890, P. 188 ; Frowd v. Frowd, 1904. P. 177 ; Dodd v. Dodd, 1906, P. 189 ; Harrbnan v. Harriman, 1909, P. 123. {h) Stat. 45 & 46 Vict. c. 75 ; ante, ])p. 557 sq. (i) Stat. 33 & 34 Vict. c. 93 ; see ante, pp. 554 — 556. (k) Stat. 2t> & 21 Vict. c. 85, s. 57 ; see ante, p. 577, and n. (A). In the interval between the decree nisi and the decree abso- late, the wife remains a married woman and the coverture con- tinues ; though the husband is not entitled to exorcise his mari- tal rights in respect of her pro- perty to her prejudice ; but when the decree absolute is pro- nounced, the marriage is dis- solved as from the date of the decree nisi ; Norman v. Villars, 2 Ex. D. 359 ; Sinclair v. Fell, 1913, 1 Ch. 155 ; Prole v. Soady, L. R. 3 Ch. 220; Allcard v. Walker, 1896, 2 Ch. 369, 384; Tremayne v. Rashleigh, 1908, 1 Ch. 681, 694. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE, 581 upon dissolution of the marriage (l). But it is now established that a decree for dissolution of marriage does not deprive either party of any interest in any property, which is limited by settlement to him or her by name (m). On any decree for the dissolution or nullity (n) of marriage, the Court may order that the husband shall to the satisfaction of the Court secure to the wife such gross sum of money (o), or such annual sum of money for any term not ex- ceeding her own hfe, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable (p) ; and the Court may make an order on the husband for payment to the wife during their joint lives of such monthly or weekly sums for her maintenance and support as the Court may think reasonable (q). Whenever the Court shall pronounce a sentence of Settlement of divorce or judicial separation for adultery of the ^ife^"pi?o. wife, it has power to order a settlement to be made of perty on her property, whether in possession or reversion, for judicial ^'^ the benefit of the innocent party, and the children of lation. the marriage or either or any of them (r). And any instrument executed pursuant to any order of the epa- (l) Wells V. Malbon, 31 Bcav. 48 ; Wilkinson v. Gibson, L. R. 4 Eq. 1G2 ; Prole, v. Soadij, L. II. I} Ch. 220 ; Codrington v. Codring- ton, L. R. 7 H. L. 854 ; Re Nares, 13 P. D. 35 ; Thornley v. Thoryi- ley, 1893, 2 Ch. 229 ; Re Wallas, 1905. W 32(5 ; 2 Wms. V. & P. 911,912, 2nd cd. [m) Fitzgerald v. Chapman, 1 Ch. D. 563 ; liurlun v. Sturgeon, 2 Ch. U. 318 ; and see Re Craw- ford's Settlement, 1905, 1 Ch. 11. Cf. Re Morrieson, 40 Ch. D. 30. («) As to the effect of a decree of nullity of marriage, see 2 Wms. V. & P. 913, 914, 2nd ed. (o) Sco Twenty man v. Twenty- man. 1903, P. 82. (p) Stat. 7 Edw. VII. c. 12, s. 1 (1), replacing and extending to nullity of marriage 20 & 21 Vict, c, 85, s. 32 ; Lister v. Lister, 15 P. D. 4 ; see Bishop v. Bishop, 1897, P. 138. (rj) Stat. 7 Edw. VII. c. 12, s. 1 (2). replacing and extending to nuUity of marriage 29 Vict, c. 32, s. I ; see De Lossy v. De Lossy, 15 P. D. 115. Such an allowance is not alienable ; Wat- kins V. Watkins, 1890. P. 222. (?•) Stat. 20 & 21 Vict. o. 85, s. 45 ; Midwinter v. Midwinter, 1892, P. 28 ; Lorriman v. Lorri- man, 1908, P. 282. But the Court cannot order such a settle- ment to be made out of the wife's property, which she is restrained from alienating ; Loraine v, Loraine, 1912, P. 222. 582 OF PERSONAL ESTATE GENERALLY. Variation of settlements on dissolution or nullity of marriage. Court made under this enactment, at the time of or after the pronouncing of a final decree of divorce or judicial separation, is to be deemed valid and effectual in the law. notA^dthstanding the existence of the disability of coverture at the time of the execution thereof (.s). And after a decree of nullity or dissolu- tion of marriage, the Court may inquire into the existence of ante-nuptial or post-nuptial settle- ments (/) made on the parties whose marriage is the subject of the decree, and may make such order with reference to the application of the whole or a portion of the property settled, either for the benefit of the children of the marriage or of their respective parents, as to the Court shall seem fit (v). Such orders are commonly known as orders for the variation of settlements. Powers of Court on ap- plication for restitution of conjugal rights. Under the Matrimonial Causes Act, 1884 (r), a decree for restitution of conjugal rights is no longer enforceable by attachment, as was previously the cf.Kc iy) ; but where the application is by the wife, the Court may, at the time of making such decree, or at any time afterwards (z), order that in the event of such decree not being complied with within any (*•) Stat. 2.3 & 24 Vict. c. 144, s. 6, made perpetual by stat. 25 & 26 Vict. c. 81. (/) See HuhhiufJ v. Ilvlifmrd. 1901. P. 157. («) Stat. 22 & 2.3 Vict. c. Gl. s. 5 ; Povftonhy v. Ponfionhy, 9 P. D. 58. 122 ; A. v. M., 10 P. T>. 178 : Noel v. Noel, ib. 179 ; Benyon v. Benyon. 15 P. T). 54 ; Pollard V. Pollard, 1894. P. 172 : Hartoppv. Haiiopp, 1899, P. G5 ; Blood V. Blood. 1902, P. 190; Constantinidi v. Constant in id i, 1905. P. 253, and see as to re- moving the effect of a restraint on anticipation contained in the settlement ; Churchward v. Churchward, 1910. P. 195; Lorainev. Loraine, 1912, P. 222. This provision was held not to apply if there was no child of the marriage living at the date of the order ; Corrance v. Corravce, L. R. 1 P. & D. 495. But bv Stat. 41 Vict. c. 19, s. 3, the ("oui-t may exercise the powers so vested in it, notwithstanding that there are no children of the marriage ; Ansdell v. Ansdell. 5 P. I). 138 ; see also Meredyth v. Meredylh, 1895, P. 92 ; Thomson V. Thomson. 1896, P. 203 ; Dor- mer \. Ward, 1901, P. 20. [x) Stat. 47 & 48 Vict. c. 68. s. 2. {y) Weldon v. Weldon, 9 P. D. 52. (z) See Leslie v. Leslie, 1908, P. 99. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 583 time in that behalf Hmited by the Court, the respon- dent shall make to the petitioner such periodical payments as may be just, and such order may be enforced in the same manner as an order for alimony in a suit for judicial separation ; and the Court may, if it shall think fit, order that the husband shall, to the satisfaction of the Court, secure to the wife buch periodical payments. Where the application for restitution of conjugal rights is by the husband, if it shall be made to appear to the Court that the wife is entitled to any property, either in possession or reversion, or in receipt of any profits of trade or earnings, the Court may, if it shall think fit, order a settlement to be made to the satisfaction of the Court of such property or any part thereof, for the benefit of the petitioner and of the children of the marriage, or either or any of them, or may order such part as the Court may think reasonable of such profits of trade or earnings to be periodically paid by the respondent to the petitioner for his own benefit, or to the petitioner or any other person for the benefit of the children of the marriage, or either or any of them («). But the Court has no jurisdiction to order any such settlement to be made out of property which the wife is restrained from anti- cipating (h). To obtain an order under this Act is now the only remed}^ in the case of a withdrawal from cohabitation by either husband or wife ; for neither party is entitled to keep the other in confine- ment, if the other desires to live apart (r). Separation between husband and wife is not en- Agreements couraged by the law. A clause in a marriage settle- ("on.^^^^^*^ ment providing for the event of a separation has been considered to be void {d) ; and so has a condi- {a) Stat. 47 & 48 Vict. c. 08, (c) It. v JucIcsoh. 1891, 1 Q. B. s. 3. U71. (h) Mitchell V. Mitchell, 1891, (d) Coclc.icdijc v. Cockscdgc, 14 P. 208. Him. 244; Cartimght v. Carl- 584 OF PERSONAL ESTATE GENERALLY. tion in a gift of personal estate to a woman living apart from her husband, that the gift should cease in case she should cohabit with him (e). But a trust in a post-nuptial settlement of the husband's property to pay the income thereof to his wife, so long as she should continue to be his cohabiting wife or his widow, has been upheld as a valid limita- tion (/). It is, moreover, now settled that an agree- ment for an immediate separation between husband and wife is not void for illegality (g) ; and any con- tract by a husband or wife to live apart from and not to molest the other, or not to sue the other for any breach of conjugal duty, will be enforced by the Court (h). A married woman's power of entering into such a contract formed a notable exception to her former incapacity to contract (*). As she might sue or be sued by her husband in any matrimonial cause (k), it was held that she might enter into a binding agreement to compromise any such pro- ceedings {I). Upon the same principle, it was further decided that a wife might make a valid con- tract to live apart from her husband founded upon other valuable consideration than a compromise of such proceedings (m). But on the occasion of a com- wright, 3 De G., M. & G. 982 ; H. 8 P. D. 98 ; Clark v. Clark, 10 V. W., 3 K. & J. 382 ; see also P. D. 188 ; Garidy v. Gandy, 30 Hindlei/ v. Marquis of West- Ch. D. 57 : Aldridge v. Aldridge, meat}i,'d B. & C. 200; llerry- 13 P. D. 210; McGregor v. weather v. Jones, 4 Giff. 499 ; McGregor, 20 Q. B. D. 529 ; Wilson V. Carnley, 1908, 1 K. B. Kennedy v. Kennedy, 1907, P. 49; 729, 740, 743. Harrison v. Harrison, 1910, 1 (e) Wren v. Bradley, 2 De K . B . 35 ; see Bishop v. Bishop G. &S. 49; and see i?e j¥oo?-e, 39 1897, P. 138. Cf. Norman v. Ch. D. 116. Norman, 1908, P. 6; Balcombe (f) Be Hope Johnstone, 1904, v. Balcombe, ib., 176. 1 Ch. 470. (i) Ante, p. 550. (g) Jones v. Waite, 4 Man. & (k) Ante, p. 576. Gr. 1104; Wilson v. Wilso7i, 1 {I) Rowley x. Rowley, L. R. 1 H. L. C. 538. H. L. So. App. 63 ; Jessel, M.R., {h) Sanders v. Rodivay, 16 Besant v. Wood, 12 Ch. D. 605, Beav. 207 ; Hamilton v. Hector, 621 ; Rose v. Rose, 8 P. D, 98 ; L. Pv. 13 Eq. 511 ; Marshall v. Cahill v. Cahill, 8 App. Cas. 420, Marshall, 5 P. D. 19 ; Besant v. 429. 435, 436. Wood, 12 Ch. D. 605 : Gandy v. (m) Hunt v. Hunt, 4 De G., Gandy, 7 P. D. 168 ; Rose v. Rose F. & J. 221 ; Marshall v. Mar- OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 585 promise of any proceedings in a matrimonial cause, or the execution of an agreement for separation, a married woman had no greater capacity to dispose of property or to contract in respect thereof than she had at any other time (n). So that a woman married under the rule of the common law could not, on separatmg from her husband, make a valid dis- position of her reversionary chose in action (o), except under the provisions of Malins' Act (p), or of her real estate, otherwise than as provided by the Fines and Recoveries Act (q). But a wife agreeing to separate from her husband might dispose of or bind by engagement any property settled on trust for her separate use without restraint on anticipa- tion (r), and may of course now deal with or contract in respect of her separate property, which she is not restrained from alienating (s). shall, 5 P. D. 19 ; Besant v. 1895, 2 Ch. 419. Wood, 12 Ch. D. 605; Clark v. (o) Stamper v. Barker, 5 Madd. Clark, 10 P. D. 188 ,• Aldridge v. 157 ; see ante, p. 541. Aldrldge, 1.3 P. D. 210 ; McGregor (p) Ante, p. 543. V. McGregor, 20 Q. B. D. 529; (f/) Cakillw Cahill, 8 App.Cas. Re WeMon, 1900, 2 Ch. 164. 420 ; see Williams, R. P. 310, (n) Stamper V. Barker, 5 M&dd. 21st ed. 157 ; Slatler v. Slalter, 1 Y. & C. (r) Cahillv. Cahill, 8 App. Gas. 28 ; Vansiitart v. Vansittarl, 4 420, 429, 431 ; ante, pp. 546, sq. K. & J. 62; Cahill v. Cahill, 8 (s) Ante, pp. 557, sq. App. Cas. 420 ; Harle v. Jarwan, ( 586 ) PART IV. OF TITLE. § 1. To Glioses in Possession. We have seen (a) that there are two ways of acquiring the ownership of goods, which are quite irrespective of any previous title. One is under an exercise of sovereign authority, of which several instances have been given (b) ; the other is by occupancy (c). Any person who acquires goods in either of these ways obtains a valid title to them, as against all the world. For the occupant of any goods enjoys the original ownership of them (d), and when a new ownership is conferred under sovereign authority, all other claims are effectually extin- guished. These modes of acquisition are however exceptional ; and we will proceed to consider what title is obtained when goods are acquired in other ways, not independent of previous ownership (e), as upon sale, gift or succession after death. General rnle The general rule of the common law is that if a as to title. j^^g^j^ dispose of a chattel, whether for value or other- wise, he can confer no better title thereto than he has himself (/). Thus if any one obtain possession of a watch, for instance, by theft or finding, and then sell it, but not in market overt, the buyer will not be entitled to retain it as against the owner {g). Nor (a) Ante,Y)\). 48,49. W. ()03, establishing that there (h) Ante, ]>. 49, and p. 26, is no rule (jf law to prevent the n. (t). owner of stolen goods from suing (c) Ante, p. 49. an innocent purchaser for their (d) Ante, p. 49. recovery before conviction of the (e) See ante, p. 48. thief (see ante, p. 54) ; Cundy v. (/) Cole V. North Western Bank Lindsay, 3 App. Cas. 459 ; Picker L. R. 10 C. P. 354, 362. v. London and County Bank, 18 [g) White y. Spetti(jue,\ZM.. &, Q. B. D. 515; Farquharson v, OP TITLE. 587 can the buyer require repayment of the price paid by him before delivering up the watch to its owner ; for a refusal to give it up, except on such conditions, would be a conversion of the chattel to the buyer's own use, and would render him liable to be sued for its recovery or value (h). And it makes no difference that the buyer purchased the watch in good faith without notice of any defect of title in the person from whom he toolv it {i). And if the seller had obtained possession of the watch on a loan of it by the owner, the buyer would take it equally subject to tJic owner's rights. For as we have seen {k), the common law does not enable a bailee to confer any title to the chattels bailed as against the owner claiming them after the determination of the bail- ment. We have taken an absolute sale by a thief or finder as the strongest instance of the rule which we are considering ; but of course a pledge (l) or gift of chattels by one so possessed of them confers no better title than a sale. The above general rule of the common law applies to dispositions of all goods, other than money or negotiable securities (m). Khig. 1902, A. C. 325; stat. ")(» & '}! Vict. c. 71, s. 21 ; and .see (tide, pp. 7—10, lo, 24, .52—55. (h) Lee v. Bayes, 18 C. B. 599 ; ante, pp. 17, 5.3, 54. A ro-sale liy tlio l)uy('r, however innocently, would also he a conversion of the chat Id to liis own use. and I'cnder him liable in trover to the owner : see cases cited in previous note, and in n. (q) to p. 53, (inte. The innocent purchaser of stfilen ■ioods may, however, obtain an oi'der for his reimhursement out of any nK'ineys tai v. Hoair, 1 Wils. S ; 2 iStr. 1187 ; Singer M an ti far titl- ing Co. V. Clark, 5 Ex. D. 37, 42. Under the Pawnbrokers Act, 1872, stat. 35 & 3(i Vict. c. 93, s. 30, goods unlawfully pawned with a pawnbroker may be ordered to be delivered to their own(^r, either on payment to the pairnhroker of the amount of the loan or any part thereof, or with- out such ])aynient, as to the Court, according to the conduct of the owner and the other cir- cumstances of the case, seems just and lifting. P.iit this enactment does not interfere with the owner's common law rights, or deprive him f)f his civil remedy ; Leicester v. Chapman. 1907, 2 K. B. 101. (ill) < treat Wenlern Ry. v. Lon- don and County Hank, 1901, A. ('. 414, deciding that cheques crossed "not negotiable" (ante, p. 207) are governed by tln^ general rule. 588 OF TITLE. Exceptions. Sale in mar- ket overt. These form the subject of one of the exceptions to the rule. As may be supposed, when title is transmitted by act of law, as upon succession after death, or the exercise of some creditor's right, it is no better than it was before, either at law or in equity (w). Thus an executor (o) or a trustee in bankruptcy (p) has no better right to goods wrongfully obtained by the testator or bankrupt than he himself had. And if the sheriff under a writ of fi. fa. (q) seize and sell goods, of which the judgment debtor is apparently but not really the owner, the sheriff is liable for their wrongful seizure (r), or the goods may be recovered from the purchaser (s). The exceptions to the above general rule have been already indicated in stating the limitations of owner- ship {t). They arise some by the common law, and others by statute. But in most cases their object is the same, namely, to protect persons who purchase goods in good faith and for value in the ordinary course of commerce, without notice of any defect in the title of those from whom they obtained them. We will first notice the common law exceptions, of which the principal relates to sales in market overt. The law of sale in market overt has been already noticed (u) ; it is now codified by the Sale of Goods Act, 1893 (x), as follows : — Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, pro- vided he buys them in good faith and without notice (n) See Lewin on Trusts, 215, 216, 6th ed. ; 275, 276, 12th ed. (o) Wins. Saund, 217, n. (1). (q)) Load v. Green, 15 M. & W. 216, 221 ; Ex parte Drake, Re Ware, 5 Ch. D. 866 ; Re Eastgate, 1905, 1 K. B. 465; Tilley v. Boivman, Ld., 1910, 1 K. B. 745. (q) Ante, p. 107. (r) Glassfoole v. Yoiing, 9 B. & C. 696 ; 33 R. R. 294 ; Legg V. Evans, 6 M. & W. 36 ; Frcman V. Cooke, 2 Ex. 654 ; Sodeau v. tShorey, 74 L. T. N. S. 240 ; Jelks V. Hayward, 1905, 2 K. B. 460. (.s) Farrant v. Thompson, 5 B. & A. 826 ; 24 R. R. 571 ; Crane v. Ormerod, 1903, 2 K. B. 37. {t) Ante, p. 24. (w) Ante, pp. 15, 24. (x) Stat. 56 & 57 Vict, c. 71, s. 22(1). OP TITLE. 589 of any defect or want of title on the part of the seller. As we have seen, however, there is one case in which even a sale in market overt will not protect a purchaser, namely, where the goods sold were stolen, and the thief has been prosecuted to conviction. For in this case the ownership of the goods is revested by statute in the party robbed, who may then recover them from any person in whose possession they are, whether the latter obtained them by purchase in market overt or otherwise (y). With Horses. regard to horses, a sale in market overt will not confer on the purchaser an}^ further title than is possessed by the vendor, unless the sale be made according to the directions of certain statutes (z) ; and even then the true owner may, at any time within six months after his horse has been stolen, recover his property on tender to the person in possession of the price he bond fide paid tor it (a). Shops ia the Every shop in the city of London, where goods are London openly sold, is considered as a market overt for such things as by the trade of the owner are put there for sale (6). But the shops at the west end of the town do not appear to possess this privilege. The second common law exception relates to Money and money and negotiable securities, of which the soc'uritics. delivery in the ordinary course of business for valuable consideration and in good faith confers a good title thereto as against all the world. If therefore any money or negotiable securities be stolen, the owner cannot recover them after they (y) Anlp, pp. 9, 10, and n. (2). Malth'ws, 8 O. B. 1). 109. 15, and n. {k). If, however, th<' (:) Stats. 2 & .3 P. & M. c. 7 ; purchaser of stolen goods in 31Eliz. c. 12; 56 & 57 Vict. c. 71, market overt resell them before s. 22 (2) ; 2 lilack. Comm. 450. conviction of the thief, he is not {a) Stat. 31 Eliz. e. 12, s. 4. liable as for their conversion \b) The Case of Market Overt, (ante, p. 587, n. (/()) : for when 5 Rep. 83 b ; Lyons v. Dc Pass, lie resold, ho was their lawful llA. &E. 32(5; hoc I/argrravev, owner; Ilorwood v. iSinith, 2 tS'/'/"/., 1892, 1 Q. B. 25 ; Clayton T. R. 750; and see Walker v. v. Le Hoy, 1911, 2 K. B. 1031. 590 OF TITLE. have been so transferred (c) ; nor does the owner- ship of any negotiable instrument stolen and so transferred revest in the party robbed upon convic- tion of the thief (d). And no title at all is required to be shown by the payer or deliverer of any money or negotiable securities in any bond fide business trans- action. Thus, if a sovereign or a banknote be offered in payment of a debt, it is no part of the duty of the creditor, under ordinary circumstances, to ask the debtor how he came by it. But if there be any tnala fides on the part of the person receiving any money or negotiable security, or such gross negli- gence as may amount in itself to evidence of 7riala fides, the true owner may recover such property, provided its identity can be ascertained (e). Dispositions Thirdly, both at common law and in equity, if any haviiTcr^a^^ one acquire goods, or any equitable interest therein, voidable title under a conversance voidable for fraud, misrepresen- tation, duress, or undue influence, and dispose of the same for value to another, who takes in good faith and without notice of the defect in the title, the original conveyance to the former party can no longer be set aside as against the latter, who thus acquires an indefeasible title to the property (/). to goods. (c) Anle, pp. 24, 25, 202, 204. 207, 343, 344. But a rare coin sold by a thief as a curiosity and never passed into circulation has been held to bo recoverable according to the general rule ; Moss v. Hancock, 1899, 2 Q. B. 111. (d) See Stat. 24 & 25 Vict, c. 90, s. 100 ; London and County Bank v. London and Biver Plate Bank, 21 Q. B. D. 535. 540 ; ante. p. 10, n. (2) 15. 24. n. (/). (e) Clarke v. Hhcp, Cowp. 197 ; Foster v. Pearson, 1 ('. M. & R. 849 ; S. C, 5 Tyrw. 255 ; Good- man v. Harvey, 4 A. & E. 870. And see Baphael v. Bank of England, 17 C. B. 161 ; Jones v. Gordon, 2 App. Cas. 61(5. (/) See 2 Wms. V. & P. 757, 832, 851, 872, 873 and n. (o), 892, 2nd ed. ; and, as to the rule of common law, White\. Garden, 10' C. B. 919 ; Kingsford v. Merry,. 25 L. J. (N. S.) Ex. 166, reversed on another ground, 26 L..J. (N. S.) Ex. 83 ; Pease v. Gloahec, L. R. ] P. C. 219, 229, 230 ; Cundy v. Lindsay, 3 App. Cas. 459, 464 j Vilmont v. Bentley, 18 Q. B. D, 322, 330 ; 12 App. Cas. 471. 477, 483 (this decision gave rise to the ami'ndinii stat. 56 & 57 Vict. c. 71. 8.24 (2): ante, p. 10. n. (2)) ; Tllley V. Bowman, Ld., 1910, 1 K. B. 745. 749 ; Whitehorn v. Davison, 1911, 1 K. B. 463 (the last two cases relate to pawning goods iMocui'ed thi'ough purchase Of title. 591 And by the Sale of Goods Act, 1893 (g), when the seller of goods {h) has a voidable title thereto, but his title has not been avoided at the time of the sale, the buj'^er acquires a good title to the goods, pro- vided he buys them in good faith and without notice of the seller's defect of title. This enactment extends in terms to every kind of voidable title (i) : but it remains to be decided whether it applies to titles, which are voidable on account of the personal incapacity of the conveying party, such as the title acquired under a voidable conveyance by an infant or a lunatic (k). These cases were not comprehended in the common law doctrine above stated (l). Fourthly, a valid title to goods may be acquired Estoppel from one who is not their owner, in consequence of the law of estoppel. For, as we have seen (m), if a man has acted so as to induce the belief that another was the owner or had power to dispose of his goods, he will be estopped by his conduct from recovering the goods from parties who have acquired them from the other for value to the belief so induced. iiuliiccd hy fraud) ; as to the rule of oquitv. Sliirge v. Starr, 2 My. & K. 195 ; Phmip-s v. Phil- lips, 4 Dc G., F. & J. 208, 218; Hunter v. Walterti, L. R. 7 Ch. 75 ; National Provincial Hank of Enfjlund v. Jackson, .'})} Ch. D. 1. 1:5 : lAoyd's Bunk v. BuU/). (r) See Gelmini v. Moriggia, 1913. 2 K. B. 549. (s) Stat. 21 Jac. I. c. 16, ss. 3, 7, amended by 19 & 20 Vict. c. 97, ss. 10, 12, removing absence beyond seas and im- prisonment from the list of the creditors' disabilities. The time is six years, although the money due be also charged upon some land or rent ; Barnes v. Glenton, 1899, 1 Q. B. 885. But if the debt were so barred, the cha>-ge would nevertheless remain until barred under the Real Property Limitation Act, 1874, as mentioned below. (/) Stat. 4 & 5 Aime, c. 3 (c. 16 in Ruffhead), s. 19 (1); see Musurus Bey v. Gadban, 1894, 2 Q. B. 352, 355. (w) Ante, pp. 182, 188, 189. [x) Tanner v. Smart, 6 B. & C. 603 ; Chasemore v. Turner, L. R. 10 Q. B. 500; Green v. Hum- phreys, 26 Ch. D. 474 ; Cooper V. Kendall, 1909, 1 K. B. 405. OF TITLE. 601 be made, either (1) by part payment of principal or interest on account of the debt so made that a l)romise to pay the remainder of the debt can be inferred therefrom (when no writing is necessary {y)), or else, (2) b}'' words only, in which case it must be made by or contained in some writing signed by the party chargeable or his agent (z). Other actions liable to be barred within six years under the Limitation Act, 1623, are those to recover back money paid under a mistake of fact (a) ; to enforce the obligation of an executor or administrator at common law to pay out of his own pocket the amount of the loss caused by a devadavit, that is, any wasting by him of tlie dead man's assets (6) ; and for payment of the compensation due under an award made by an arbitrator for lands taken or injmiousW affected under the Lands Clauses Act, 1845 (c). " Recovering money paid ))y niistiikc of fact. Dcvaslacit. By the Real Property Limitation Act, 1874 {d), no action or other proceeding shall be brought to recover anj- sum of money secured by any mort- gage, judgment (e) or lien (/), or otherwise charged (y) Waugh v. Cope, G M. & W. 824, 82!) ; Morgan v. liowland-s, L. K. 7 g. 13. 4!)3 ; Re Bo.nvell, 1»0(). 2 Ch. :3o9. settled on appeal 1907. 2 Ch. 331 ; Marrcco v. liichurdson, 1908, 2 K. 13. 584; and see Re Chant, 190.5, 2 Ch. 225 ; ante, p. 188, and n. («). (:) Stat. 9 Geo. IV. e. 14, s. 1, amended by 19 & 20 Vict, c. 97, s. 13 ; ante, pp. 188, 189. [a) Baker v. Coitragp, 1910, 1 K. P.. 50; Re Robinson. 1911. 1 C:h. 502. As to thi.s rifiht, see Kelly V. Solari, 9 M. & W. 54 ; Re Bodega Co., Ld., 1904, 1 Ch. 270 ; Bai/lis v. Bishop of London, 1913, 1 Ch. 127. (b) Lacon.'< v. Warmoll, 1907, 1 K. 13. 350 ; hut cf. Re Hyatt, 38 Ch. D. 509 ; Re Blow, 1913, 1 Ch. 358 ; and sec ante, pp. 220, 566, n. (.r). ((■) Turner v. Midland Rij. Co., 1911, 1 K. 13. 832 ; fcc ante, p. 328. (d) Stat. 37 & 38 Vict. c. 57, s. 8, which came into operation on the 1st January, 1879 (s. 12), and replaced the Real Property Limitation Act, 1833 (3 & 4 Will. IV. c. 27), s. 40. under which the time of limitation was twrnty years. (r) This is held to mean judgments gencrall}', and not those operating as charges on land only ; Jay v. Johnstone, 1893. 1 g. B. 25. 189; Taylor V. Hollnrd, 1902, 1 K. B. 676, 678. (/) Lien hero means a charge on land by way of equitable Money secured by mortgage, judgment, or lien, or other- wise charged on any land or rent, and legacies. 602 OF TITLE. upon or payable out of any land (g) or rent at law or in equity, or any legac}^ {h), but within twelve years next alter a present right to receive the same (i) shall have accrued to some person capable of giving a discharge for or release of the same ; unless in the meantime some part of the principal money, or some interest thereon, shall have been paid (A;), or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his lien, such as the equitable lien of a vendor of land for unpaid purchase money ; see WUliams, R. P. 567, 21st ed. ; 2 Wnis. V. & P. 1026 sq., 1047, 2nd cd. It docs not include any posses- sory lien at common law {ante, pp. 62 sq., 86), or a vendor's lien for unpaid purchase money of anj' personal chattels of an incorporeal nature, such as a reversionary interest in settled personalty ; Re Stucley, 1906, 1 Ch. 67, deciding that the time for enforcing a vendor's lien of this kind is not limited by any statute ; see also Levy v. Stogdon, 1899, 1 Ch. .5, deciding the same as to the lien of a purchaser of such property for a deposit paid by him. (gr) Land here includes any share, estate or interest in corporeal hereditaments or tithes whether the same shall be a freehold or chattel interest, and whether freehold or copyhold or held according to any other tenure; stats. 3 & 4 Will. IV. c. 27, s. 1 ; 37 & 38 Vict. c. 57, s. 9 ; and extends to an interest in the proceeds of sale of land settled on trust for sale ; Kirh- land V. Peatfield, 1903, 1 K. B. 756 ; Re Hazddine's Trusts. 1908, 1 Ch. 34 ; Re Fox, 1913, 2 Ch. 75. It may be noted that the time for bringing an action to foreclose a mortgage of land (in the sense of corporeal hereditaments) is not regulated by the enactment above stated in the text ; see Williams, R. P. 563, 564, 21st ed. But this enactment limits every action to enforce the charge where money is charged otherwise than by mortgage (as by settlement or will or Act of Parhament) on any land (in the above extended meaning), and also where money is charged by way of mortgage on any interest in land consisting of the proceeds of sale of land settled on trust for sale or of money charged on or payable out of land ; see the cases last cited ; Horn^ey Local Board v. Monarch Investment Bdg. Socy., 24 Q. B. D. 1 ; Skeiie v. Cook, 1902, 1 K. B. 682, 689. (h) This applies to all legacies, including those payable out of personalty only ; Sheppard v. Duke, 9 Sim. 567 ; and includes any share of a testator's resi- duary estate; Re Davis, 1891, 3 Ch. 119; Re Mackay, 1906, 1 Ch. 25 ; and bars any pro- ceeding by the legatee against the executor (see ante, p. 496), except where the legacy is not charged on any land and is secured by an express trust (as to which, see post, p. 610) ; see Sheppard v. Duke ; Re Davis, ubi sup. (i) See Re Owen, 1894, 3 Ch. 220; Re Pardoe, 1906, 1 Ch. 265. (k) See Re Clifden, 1900, 1 Ch. 774 ; Re Laccy, 1907, 1 Ch. 330. OF TITLE. 603 agent (l), to the person entitled thereto, or his agent (m) ; and in such case no such action or proceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given. It has been held that this enactment limits to twelve years and otherwise regulates the riglit to sue upon any special contract {n) by a mortgagor of land or of any interest therein to pay the money secured by the mortgage (o) ; and this is equally the case wliether the special conti'act be contained in the mortgage deed itself, or in a separate instrument (p). The same enactment also limits the time for suing upon any special contract to pay any money otherwise charged upon or payable out of any land or rent {q). By the Law of Property Amendment Act, 1860 (r), any proceeding to recover the personal estate, or any share of the personal estate of any person dying intestate, possessed by the legal personal representative of such intestate, must be brought within twenty years after the same events as above specified with regard to legacies. remedy on the covenant had been merged in the judgment and so barred) ; ante, pp. 226, n. (a), GOl, and n. (e) ; lie Fox, 1913, 2 Ch. 75, 78 ; ante, p. 602, and n. [g); Smith v. HUl, 9 Ch. D. 1-13, 150. As to the question whether the action against a surety by special contract for a mortgage of land or some in- terest therein is barred by this enactment, see Re Powers, 30 f'h. D. 291 ; Re Frisby, 43 Ch. 1). 106. (p) Fearnsidc v. Flint, 22 Ch. 1). 579. (q) Re. England, 1895, 2 Ch. 820; Shaw v. Crompton, 1910, 2 K. B. 370 (covenant to pay a rcntcharge). (r) Stat. 23 & 2-t Vict. c. 38, s. 13 ; see Re Johnson, 29 Ch. D. 964 ; ante, p. 496. {I) Lord St. John v. Boughton, 9 Sim. 219. {m) Blair v. Nugent, 3 Jones & Lat. 673, 677. (n) See an) Ante, p. 338. But if the shares were not choses (7) A nte, p. 342. in action, how could there have (/•) Soci6l6 Ginirale de Paris been any necessity for the mort- v. Walker, 14 Q. B. D. 424 ; 1 1 gagee to perfect his title by App. Cas. 20. giving notice of the assignment ? (a) Ante, p. 329. The loarn(!d judge ap])ears to (t) See Roots v, Williamson, have overlooked this eonsidera- 38 C"h. D. 485 ; Powell v. London tion ; though it is fair to state and Provincial Bank, 1893, 2 Ch. that ho seems to have based his 555 ; Lindley on Companies, 454, judgment entirely on his view of 5th ed. the policy of the Bankruptcy Act, («) Ante, p. 338. 1869. This view was overruled 618 OF TITLE. title of a transferee of shares in companies regulated by the Companies Clauses Act, 1845, is not complete until a deed of transfer duly executed and otherwise in order has been delivered to the secretary of the company for registration (x). But in either case the shares may be assigned in equity in the same manner as other chattels (y), or charged in equity by a deposit of the share certificates (z). When several equitable assignments of the same shares are made, they have priority, as a rule, according to the order of time in which they were created {a). But any equitable assignee may be postponed to a subsequent assignee on the ground of fraud or negligence (6). If, however, any assignee of shares for valuable consideration should obtain a complete legal title thereto, without notice of any prior equity, he will be entitled to retain them as against any person claiming under a merely equitable title, though prior in point of time (c). Upon the sale or mortgage of shares in companies regulated by the Companies Clauses Act, 1845, or registered under the Companies Act, 1862, the most important evidence of title to be obtained is the production of the share certificates {d). It appears that, as a rule, the vendor of shares in a joint stock company is bound to give such evidence of the constitution of the company as will show that the proposed transfer will give a vahd title to the shares sold, but is not required to give any evidence of the title to any property held by the company (e). Title through The title to personal property sometimes depends ^ee &, wi s, ^pQj^ deeds, wills or other documents of title of the {x) Ante, p. 329. (c) See Boots v. Williamson, (y) Ante, p. 96. 38 Ch. D. 485, 491 ; Powell v. (z) Ante, p. 341. London and Provincial Bank, (a) Socim Gindrale de Paris 1893, 2 Ch. 555, 564. V. Walker, 11 App. Cas. 20, and (d) yl?i/) See Edtvards v. Marcus, D. Ill ; Ford v. Krttlr, 9 Q. H. D. 1894, 1 Q. B. 587. J 39 ; Ex jHtrte Bolland, Re Roper, 632 APPENDIX. Renewal of registration. Register. Entry of satisfaction. Copies may be taken, &c. two or more bills of sale are given, comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registration respectively, as regards such chattels (2). A transfer or assignment of a registered bill of sale need not be registered (a). By sect. 11, the registration of a bill of sale, Avhether executed before or after the commencement of the Act, must be renewed once at least every five years, and if a period of five years elapses from the registration or renewed registration of a bill of saleVithout a renewal or further renewal (as the case may be), the registration shall become void (b). A renewal of registration shall not become necessary by reason only of a transfer or assignment of a bill of sale. Sect. 12 i^rovides for the entry of particulars relating to bills of sale in the register thereby required to be kept, and for the keeping of an index of the names of the grantors of registered bills of sale. Sect. 15 jjrovides for the entry of a memorandum of satisfaction of a registered bill of sale. And by sect. 16, any person shall be entitled to have an office copy or extract of any registered bill of sale and affidavit of execution filed therewith, or registered affidavit of rencAval, upon paying for the same ; and any copy of a registered bill of sale, and affidavit purporting to be an office copy thereof, shall in all courts and before all arbitrators or other persons be admitted as inijiid facie evidence thereof, and of the fact and date of registration as shown thereon. And any person shall be entitled at all reasonable times to search the register and every registered bill of sale, upon payment of one shilling for every copy of a bill of sale inspected (c). [z) See Conelly v. Steer, 7 Q. B. i). 520 ; Lyons v. Tucker, ib. 520. (a) See Ex parte Turquand, Re Parker, 14 Q. B. D. 636. {h) See Fcnton v. Blytlie, 25 Q. B. D. 417 ; Re Parsons, 1893, 2 Q. B. 122 ; Anton iadiv. Smith, 1901, 2 K. B, 589, (c) Provision is now made for an official search in the register of bills of sale, and the issue of a certificate of the result of such a search at the instance of any person requiring the same ; so that now a man may either search the register himself, or cause an official search to be APPENDIX. 633 (Sect. 20) Chattels comprised in a bill of sale which Order and has been and continues to be duly registered under the '^P°^^ ^°^- Act, shall not be deemed to be in the possession, order or disposition of the grantor of the bill of sale within the meaning of the Bankruptcy Act, 1869 {d). The Bills of Sale Act, 1878, Amendment Act, 1882 (e), came into operation on the 1st of November, 1882, which date is therein referred to as the commencement of the Act {/). This Act contains the following pro- visions : — Bills of Sale Act of 1882. (Sect. 3) The Bills of Sale Act, 1878, is hereinafter referred to as " the principal Act," and this Act shall, so far as is consistent with the tenor thereof, be con- strued as one with the principal Act ; but unless the context otherwise requires shall not apply to any bill of sale duly registered before the commencement of this Act so long as the registration thereof is not avoided by non-renewal or otherwise (g). The expression " bill of sale " and other expressions Meaning of in this Act have the same meaning as in the principal ^'^r'"''- Act, except as to bills of sale or other documents mentioned in sect. 4 of the principal Act (Ii), which may be gi\'en otherwise than by way of security for the payment of money, to which last-mentioned bills of sale and other documents this Act shall not apply (i). (Sect. 4) Every bill of sale shall have annexed thereto or written thereon a schedule containing an inventory of the personal chattels comprised in the bill of sale ; made ; see stat. 45 & 46 Vict, c. 39, 8. 2, and the rules made thereunder, set out in Williams' Cf)nvevancing Statutes, 202, 270, 479—401 ; R. S. C. 1883, Order LXI. rule 23. (r/) lie Hewer, Ex jxirtc Kahni, 21('h. D. 871. See«H/f,pp. 113, 114. And see stat. 4(i & 47 Vii t. c. .52, s. 149, sub-s. 9. (e) Stat. 4.5 &4() Vict. c. 43. (/) Sects. 1, 2. This Act does not extend to Scotland or Ireland, sect. 18. (7) Ex qmrt^ Iznrd, Re Chappie, 23 Ch. D. 409 ; see ante. p. 113, It has l)een held that the Act of 1882 docs not apply to an un- rejfistercd bill of sale executed more than seven . 32; Re Ilockmla;/, soiziiro of jzoods uiulor a liill of 3 'rimes L. 11. 285 ; Sharp v. sale made and ri^gisteiod liefore Mrflenri/,^S Vh. D. 427. the tommencemont of the Act ; (q) See Ilrsrltine v. Simmont, Ex parte Cotton, 1 1 Q. B. I). 301 ; 1892, 2 Q. B. 547. (r) The schedule to the Act is as follows : — Form of Bill of Sale. This indenture, made the day of , between A. B. 636 APPENDIX. Attestation. By sect. 10, the execution of every bill of sale by the grantor shall be attested by one or more credible of of the one part, and C. D. of of the other part, Mitnesseth that in consideration of the sum of £ now paid to A. B. by C D., the receipt of which the said A. B. hereby acknowledges [or whntever else the consideration may he} he the said ^. B. doth hereby assign unto C. D., his executors administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of securitj' for the payment of the sum of £ , and interest thereon at the rate of per cent, per annum [or ichatevcr else may be the rate\ And the said A. B. doth further agree and declare that he w\\\ duly pay to the said C. D. the pi'incipal sum aforesaid, together with the interest then due, by equal payments of £ on the day of [or ichatever else may be the stipulated times or time of paymenf}. And the said A. B. doth also agree with the said C. D. that he will [here insert terms as to insurance, payment of rent, or otherwise, which the parties may agree to for the maintenance or defeasance of the security\ Provided always, that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said C. D. for any cause other than those specified in sect. 7 of the Bills of Sale Act (1878) Amendment Act, 1882. In witness, &c. Signed and sealed by the said A. B. in the presence of me E. F. [add witness's name, address, and description]. See Davis v. Burton, 10 Q. B. D. 414, 11 Q. B. D. 537 ; Be Williams, Ex parte Pearce, 25 Ch. D. 656 ; Hammond v. Hocking, 12 Q. B. D. 291 (bill of sale containing an agreement for grantor to paj' premiums necessary for insuring the goods against fire, and to deliver the receipts to the grantee is not void on that account) ; Melville v. Stringer, 13 Q. B. D. 392 ; Hetherington v. Groome, ib. 789 (bill of sale containing agreement to pay the mone}' advanced on demand and power to seize in default held void) ; Roberts v. Roberts, ib. 794 ; Sibley v. Higgs, 15 Q. B. D. 619 ; Consolidated Credit Corporation v. Gosney, 16 Q. B. D. 24 (agreement to replace worn out goods does not avoid the security) ; Myers v. Elliott, ib. 526 ; Ex parte Stanford, Re Barber, 17 Q. B.'D. 259 (security void for incorporating statutory covenants for title under Conveyancing Act of 1881) ; Davies v. Rees, ib. 408 (covenant to pay principal and interest contained in a vo'd bill of sale is void) ; (loldstrom v. TaUerman, 18 Q. B. D. 1 (security held valid providing for repayment of loan by instalments with interest at 60 per cent., for insurance and payment of rent, rates and taxes by mortgagor, and in default by mortgagee, Avith po\\er to add same ^\ith interest at 20 per cent, to his security) ; Hughes v. Little, ib. 32 ; Blaiberg v. Beckett, ib. 96 ; Ex parte Official Receiver, Re Morritt, ib. 222 (security held valid containing power to seize for causes specified in sect. 7 of the Act, and to break open doors and windows for that purpose ; much discussion and variance of opinion as to what power of sale is enjoyed by the holder of a bill of sale under the Act of 1882) ; Wathins v. Evans, ib. 386 (same subject) ; Re Cleaver, 18 Q. B. D. 489 ; Furher v. Cobb, ib, 494 (covenant held valid not to remove the goods and not to suffer them to be injured and to repair and replace worn out goods) ; Lum- ley V. Simmons, 34 Ch. D. 698 (bill upheld containing a proviso making the whole of the principal unpaid and interest due to be immediately payable on default in making paj'ment of any instalment and con- taining an express power of sale, as to which see the two previous cases also) ; Calvert v. Thomas, 19 Q. B. D. 204 (further opinions as APPENDIX. 637 witness or witnesses, not being a party or parties thereto. And so much of sect. 10 of the principal Act as requires that the execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and that the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting witness, was repealed {s). (Sect. 11) Where the affidavit (Avhich under sect. 10 Local of the principal Act is required to accompany a bill of registration. sale when presented for registration) describes the residence of the person making or giving the same or of the person against whom the process is issued to be in some place outside the London bankruptcy district as defined by the Bankruptcy Act, 1869 (t), or where the bill of sale describes the chattels enumerated therein as being in some place outside the said London bank- ruptcy district, the registrar under the principal Act shall forthwith and ^v^tllin tliree clear days after regis- tration in the principal registry, and in accordance with the prescribed directions, transmit an abstract in the prescribed form of the contents of such bill of sale to the county court registrar in whose district such places are situate, and if such places are in the districts of to the power of sale given bj' a bill of sale) ; Heal and Personal Advance Co. v. Clears, 20 Q. B. D. 304 {power of seizure on non-pay- ment of moneys expended by the mortgagee for rent, rates and taxes invalidates the securitj) ; Parsons v. Brand, 25 Q. B. D. 110; Coch- rane V. Entwistle, ib. 11(5; Sinvnons v. Woodward, 1892, A. C. 100; Johnson v. Diprose, 1893, 1 Q. B. 512 (grantor of bill of sale has an equity of redemption only) ; Seed v. Bradley, 1894, 1 Q. B. 319 ; Weardale Coal and Iron Co. v. Ilodson, 1894, 1 Q. B. 598; AUree v. Altree, 1898, 2 Q. B. 267 (bill void for not giving grantee's address) ; De Braam v. Ford, 1900, 1 Ch. 142 ; Davies v. Jenkins, li)00, 1 Q. B 133 (bill void for not containing an acknowledgment of the receipt of the money advanced) ; Saunders v. While, 1902, 1 K. B. 472 ; Coates v. Moore, 1903, 2 K. B. 140 ; Eosefiekl v. Provincial Union Bank, 1910, 2 K. B. 781 (bill providing for payment of the principal and interest secured by equal monthly instalments, upheld) ; Hall v. Whiteman, 1912, 1 K. B. 683 (bill held void for not containing a term of the parties' agreement embodied in a contemporaneous document), (s) This enactment applies only Casson v. Churchley, 53 L. J, to bills of sale given by way of Q. B. 335 ; see ante, pp. 625, security for the payment of 626, 631. money; and the execution of (t) See now stat. 46 & 47 Vict, other bills of sale is still regulated c. 52, sa. 96, 149 (sub-sect. 2). by sect. 10 of the Act of 1878 ; 638 APPENDIX. Bill of sale to secure less than 30Z. Chattels seized under bill of sale. different registrars to each such registrar. Every abstract so transmitted shall be filed, kept and indexed by the registrar of the county court in the prescribed manner, and any person may search, inspect, make abstracts from, and obtain copies of the abstract so registered in the like manner and upon the like terms as to payment or otherwise as near as may be as in the case of bills of sale registered by the registrar under the principal Act (w). (Sect. 12) Every bill of sale made or given in con- sideration of any sum under thirty pounds shall be void (x). (Sect. 13) All personal chattels seized, or of which possession is taken after the commencement of this Act, under or by virtue of any bill of sale (whether registered before or after the commencement of this Act), shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were so seized or taken possession of (y). (Sect. 14) A bill of sale to which this Act ajDplies shall be no protection in respect of personal chattels included in such bill of sale, which, but for such bill of sale, would have been liable to distress under a warrant for the recovery of taxes and poor and other parochial rates. (Sect. 15) The eighth and twentieth sections of the principal Act, and also all other enactments contained in the principal Act which are inconsistent with this Act are repealed, but this repeal shall not affect the validity of anything done or suffered under the principal Act before the commencement of this Act (z). Searching the (Scct. 16) So much of the sixteenth section of the register. principal Act as enacts that any person shall be entitled No protection against dis- tress for taxes and rates. Repeal. (u) See ante, p 632, and s. 16, below. (x) See Davis v. Usher, 12 Q. B. D. 490. {y) See sect. 7. ante, p. 635 ; Tomlinson v. Consolidated Credit Corporation, 24 Q. B. D. 135. (2) See ante, pp. 629, 630, 633. APPENDIX. 639 at all reasonable times to search the register and every registered bill of sale upon payment of one shilling for every copy of a bill of sale inspected (a) is hereby repealed, and from and after the commencement of this Act any person shall be entitled at all reasonable times to search the register, on payment of a fee of one shilling, or such other fee as may be prescribed, and subject to such regulations as may be prescribed, and shall be entitled at all reasonable times to inspect, examine and make extracts from any and every regis- tered bill of sale without being required to make a written application, or to specify any particulars in reference thereto, upon payment of one shilling for each bill of sale inspected, and such payment shall be made by a judicature stamp : ProAuded that the said extracts shall be limited to the dates of execution, registration, renewal of registration, and satisfaction, to the names, addresses, and occupations of the parties to the amount of the consideration, and to any further prescribed particulars (b). (Sect. 17) Notliing in this Act shall apph' to any debentiu'cs issued by any mortgage, loan, or other incorjjoratcd company, and secured upon the capital, stocks, or goods, chattels and effects of such com- pany (c). (a) See ante, p. 632. 1891, 1 Ch. 627 ; Great Northern (b) See note (c) to p. 632, ante. Ry. Co. v. Coal Co-operative (c) See Ronis v. Army and Society, 1890, 1 Ch. 187 ; Navy Hotel Co., 34 Ch. D. i3 ; Richards v. Kidderminster Over- Jcnkinson v. Brandley Mutiny seers, 1896, 2 Ch. 212; Clark y. Co., 19 Q. B. D. 568; Reid v. Balm, 1908, 1 K. B. 667; and Joannon, 25 Q. B. D. 300; Re see f/H/e, p. 346, n. (e). Standard Manujacluriny Co., ( 640 ) APPENDIX (B). (Referred to, ante, p. 358.) Form of Letters Patent given in the Third Schedule to the Patents Rules, 1908. EDWARD VII. by the grace of God, of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas King, Defender of the Faith, Emperor of India : To all to whom these presents shall come greeting : Whereas hath declared that he is in possession of an invention for that he claims to be the true and first inventor thereof, and that the same is not in use by any other person to the best of his knowledge and belief (a) : And whereas the said inventor hath humbly prayed that a patent might be granted unto him for the sole use and advantage of his said invention : And whereas the said inventor (hereinafter together with his executors, administrators, and assigns (6), or any of them, lef erred to as the said patentee) hath by and in his complete specification particularly described the nature of his invention (c) : And whereas We, being willing to encourage all inventions which may be for the public good, are graciously pleased to condescend to his request : Know ye, therefore, that We of our especial grace, certain knowledge and mere motion {d) do by these presents, for us our heirs and successors, give and grant unto the said patentee our especial license, full (a) See ante, pp. 348, 351, (c) See ante, pp. 355—360. 354. [d) See ante, p. 354, (6) See ante, pp. 43, 363. APPENDIX. power, sole privilege, and authority, that the said patentee by himself, his agents or licensees, and no others, may at all times hereafter during the term of years herein mentioned make, use, exercise, and vend the said invention (e) within our United Kingdom of Great Britain and Ireland, and Isle of Man (/), in such manner as to him or them may seem meet, and that the said patentee shall have and enjoy the whole profit and advantage from time to time accruing by reason of the said invention during the term of fourteen years from the date hereunder written of these presents (^): And to the end that the said patentee may have and enjoy the sole use and exercise and the full benefit of the said invention; We do by these presents for us, our heirs and successors, strictly command all our subjects Avhatsoever within our United Kingdom of Great Britain and Ireland, and the Isle of Man, that they do not at any time during the continuance of the said term of fourteen years either directly or indirectly make use of or put in practice the said invention, or any part of the same, nor in anywise imitate the same, nor make or cause to be made any addition thereto or subtraction therefrom, whereby to pretend themselves the inventors thereof, without the consent license or agreement of the said patentee in writing under his hand and seal, on pain of incurring such penalties as may be justly inflicted on such offenders for their contempt of this our Royal command, and of being answerable to the patentee according to law for his damages thereby occasioned {h) : Provided always that these letters patent shall be rc\'oeablc on any of the grounds from time to time by law prescribed as grounds for revoking letters patent granted by Us and the same may be revoked and made void accordingly (i) : Provided also, that if the said i^atentee shall not pay all fees by law required to be paid in respect of the grant of these letters patent, or in respect of any (e) See ante, pp. 351, 593, 594. 358. (/) Sec ante, p. 3.58. (h) See ante, pp. S.JI. 360. Ig) See ante, pp. 348, 360, (i) See an^e, pp. 367, 368. w.P.P. 41 6^1 642 APPENDIX. * Here is to be inserted the name of the Comp- troller- General. matter relating thereto at the time or times, and in manner for the time being by law provided (k), and also if the said patentee shall not supply or cause to be supplied, for our service all such articles of the said invention as may be required by the officers or com- missioners administering any department of our service in such manner, at such times, and at and upon such reasonable prices and terms as shall be settled in manner for the time being by law provided (/), then, and in any of the said cases, these our letters patent, and all privileges and advantages whatever hereby granted shall determine and become void notwith- standing anything hereinbefore contained : Provided also that nothing herein contained shall prevent the granting of licenses in such manner and for such considerations as they may by law be granted (jn) : And lastly, We do by these presents for us, our heirs and successors grant unto the said patentee that these our letters patent shall be construed in the most bene- ficial sense for the advantage of the said patentee. In witness Avhereof We have caused these our letters to be made patent and to be sealed as of the (n) one thousand nine hundred and Comptroller-General of Patents, Designs, and Trade Marks. (k) See ante, p. 349. (I) See ante, pp. 354, 355. (m) See ante, p. 361. (n) See ante, p. 358. ( 643 ) APPENDIX (C). (Referred to, ante, pp. 397, 409, 411, 41(5, 419, 421, 431, 439, 553.) ♦ Marriage Settlement uf Stock and of a Share of a Testator's Residuary Estate upon the usual Trusts. THIS INDENTURE made the 5tli day of August 1913 Date ; Between A. B. [intended husband] of [description] of parties, the first part C. D. {intended rcife] of [description] of the second part and E. F. of [description] and G. II. of [description] hereinafter referred to as " tlie trustees " which expression sliall exee[)t where repu<,'nant to the context inchide the survivor of them or the executors or administrators of such sur^■i^•or or all or excvy other the trustees or trustee for the time being of these presents (a) of the third part Whereas a marriage is intended to be solemnized Recitals. between the said A. B. and C. D. And wherea.s in pursuance of an agreement in that behalf entered into upon the treaty for the said intended marriage the said A. B. has transferred (b) the sums of stock described in the schedule hereto into the names of the trustees to the intent tliat the trustees shall stand possessed thereof Upon tkust for the said A. B. until the said intended marriage and after the solemnization thereof upon the trusts hei'cinafter declared and subject to the provisions hereinafter contained cojieerning the same And whereas L. D. late of [descrijJtion] by his last will dated the 23rd day of January 1912 after bequeathing (a) The devolution by sur- expressly, by an interpretation vivorship or otherwise of trusts clause or otherwise, the intention and powers imposed on or given that all the duties, powers and to trustees is provided for by discretions of the original trus- law (see 1 VVms. V. & P. 271 — tees may be exercised by their 273, 278 — 280, 2nd ed. ; stats. successors or solo successor in 5G & 57 Vict. c. 53, s. 22 ; 1 & 2 oflico. Geo. V. c. 37,8. 8); but that does (b) -1/i^c, p. 439. not make it improper to declare 41—2 644 APPENDIX. 1st testatum Assignment of share of residuary estate. Habendum. divers specific and pecuniary legacies and annuities devised and bequeathed all the residue of his real and personal estate unto and to the use of J. K. and L. M. their heirs executors administrators and assigns upon trust for sale and con^'ersion into money and for pay- ment thereout of his funeral and testamentary expenses and debts and the legacies and annuities bequeathed by his will and the legacy duty thereon and declared that subject thereunto his residuary estate should be in trust for his daughters E. D. F. D. and the said C. D. to be equally divided between them and appointed the said J. K. and L. M. executors of his said will And WHEREAS the said L. D. died on the first day of March 1912 and his said will was proved on the 6th day of December 1912 in the principal probate registry of the High Court of Justice by both the said executors (c) And w^hereas upon the treaty for the said intended marriage it was agreed that the said C. D. should assign the said share of the residuary estate of the said L. D. to which she is entitled under the said will to the trustees upon the trusts hereinafter declared and subject to the provisions hereinafter contained concerning the same and that she should enter into the agreement hereinafter contained for the settlement of other pro- perty to which she may now be or may hereafter during her intended coverture become entitled (d) Now THIS INDENTURE WITNESSETH that in pursuancc of the said agreement in this behalf and in consideration of the said intended marriage (e) the said C. D. doth hereby assign as settlor (/) unto the trustees (g) all THAT the share and interest of the said C. D. vmder the said will of the said L. D. in all the real and personal estate which is now or may at any time hereafter become subject to the trusts of the said will To HAVE AND TO HOLD the samc premises unto the trustees upon trust for the said C. D. until the said intended marriage and after the solemnization thereof upon the trusts hereinafter declared and subject to (c) See ante, pp. 488, 489. (d) See am«e, pp. 430— 432,551. (e) See ante, p. 433. (/) See ante, p. 619, n. (h). (g) See ante, pp. 402 403, 452, 453. APPENDIX. 645 the provisions hereinafter contained concerning the same And this indenture also witnesseth that in further pursuance of tlie agreement entered into upon the treaty for the said intended marriage and for the consideration aforesaid it is hereby agreed and deehired that after the solemnization of the said intended marriage the trustees (h) shall either permit the sums of stock described in tlie schedule hereto (hereinafter referred to as the husband's trust fund) or any of them or any part or parts thereof respectively to remain in their present state of investment or shall at any time or times with the consent of the said A. B. and C. D. during their joint li\es and of the survivor during his or her life and after the death of such survi\or at the discretion of the trustees {i) sell or convert into money the said sums of stock or any of them or any part or parts thereof respectively And shall get in and receive pay- ment of the moneys constituting the said share of the residuary estate of the said L. D. hereinbefore assigned (hereinafter referred to as the wife's trust fund) with power with such consent or at such discretion as afore- said to accept and take over at a valuation any property of any kind for the time being forming part of the said residuary estate Avhieh may be or desired to be appro- priated ])y the executors or trustees of the said will to the said share of the said C. D. therein and take a transfer to the trustees of such property and retain the same in its then state of investment (uotAvithstanding that the same be not such as is hereinafter authorised) or sell or convert into money such property And shall with such consent or at such discretion as aforesaid invest any money which shall be produced by the sale of the husl)aiKrs trust fund or any i)art thereof or received in respect of the wife's trust fund or the sale thereof or of any part thereof and any other money which may be or become subject to the trusts of these presents and which ought to be invested in the names or under tiie legal control of the trustees (h) See ante, p\ 643, n. (a). (i) See ante, p. 643, n. (a). 2ndtestatum: Declaration of trusts. To permit present in- vest niont.s to remain, or to convert them into money. For invest- ment. 646 APPENDIX. upon any securities or in any manner of investment upon or in Avhich trustees shall for the time being be authorised by law to invest trust money {k) or in any of the public stocks or funds or government securities of the. United Kingdom or India or any colony or dependency of the United Kingdom (including the Dominion of Canada or any province forming part thereof and the Commonwealth of Australia or any state forming part thereof and the Dominion of New Zealand (/) ) or upon freehold copyhold leasehold or chattel real securities in England or Wales or in or upon the mortgages debentures debenture stock securities or bonds or the guaranteed preference or ordinary stock or shares of any corporation company or public body Avhetlicr municipal county local com- mercial or otherwise incorporated constituted situate or carrying on business in the United Kingdom or India or any colony or dependency of the United Kingdom (including as aforesaid) or upon the security of any interest for or determinable with a life or lives in any real or personal property wherever situate or arising together Avith a policy or policies of assurance on such life or lives or in the purchase of any heredita- ments situate or arising in England or Wales and held for an estate of inheritance of freehold copyhold or customary tenure or for any term of years Avhcreof not less than fifty years shall be unexpired at the time of purchase and either in possession or subject to any lease or underlease for any term of years or in the enfranchisement of any copyhold hereditaments Avhich shall have been purchased under this present poAver all hereditaments so to be purchased to be held on trust for sale Avith such consent or at such discretion as aforesaid and for a]ip]ication of the rents and profits thereof until sale as if the same Avere income arising from investments (otherAvisc than in the purchase of hereditaments) of the proceeds of sale thereof (m) but not in any other mode of iuA^estment (/?) (k) See ante, p. 417, and Table Wil'ions Estate, 1912, 1 Ch. 55. annexed thereto. (>n) See rtwfc, pp. 418 — 420. (l) See Re Sir S. M. Maryoii {n) See anfe, p. 417, and n, (a;). nients. APPENDIX. 647 And may with such consent or at sucl\ discretion as Power to aforesaid from time to time vary or transpose all or vary invest- any of the investments of the property for the time being subject to the trusts of these presents for or into any other or others of the description hereby autho- rised (o) And shall pay the income of the husband's trust To pay in- fund and of tlie investments thereof to the said A. B. come of fund 1- i-i-i> IP 1-1 •i/'.-i-v Hcttled by dunng his hie and alter his death to tlie said C, U. iui,sl)and to during her life but so that she shall have no power ^'''^ ^°^' I'^o i-i -i-.i! e 1 , , then to wife during lier said intended or any luture coverture to fgj. uf^ alien or anticipate her interest therein (p) And shall pay the income of the wife's trust fund To pay in- and of the investments thereof to the said C. D. during ^^l^,^ of fund ,,.-.., , ... IP, settled l)y her life Avithout power of anticipation and after her wife to her death to the said A. B. during his life (q) ^°V'V^T And after the death of the said A. B. and C. D. for Hfe. ' shall stand possessed of the husband's trust fund and Trusts for the the wife's trust fund and the investments and income i';^"^' ^^^^ ^ , , p J • 1 PI, , children of thereof respectively in trust lor all or such one or the marriage. more exclusively of the others or other of the issue (whether children or more remote) (r) of the said intended marriage such remoter issue to be born and such children or remoter issue to take interests which must necessarily vest (if at all) during the lives of the said A. B. and C. D. or the life of the survivor of them or Avithin twenty-one years after the death of such survivor {s) at such age or time or respective ages or times if more than one in such shares for such interests and Avith such future or executory or other trusts for the benefit of the said issue or some or one of them and Avith such proA'isions for their respectiA'c adA^anee- mcnt (either OA'crreaching the interests prior to this power or not) or maintenance or education at the discretion of the trustees or of any other persons or person and upon such conditions Avith such reslrielions (o) See Williams on Settle- Statutes, 418, 419 ; Williamson ment8» 175. Settlements, 127, 128, 14!). (p) See an) See nH/f, p. 411. on Settlements, 149. (•<) Sec ante, pp. 404, 412— (q) See unte, pp. 551, 517— 414. 520 ; Williams' Conveyancing 648 APPENDIX. Hotchpot clause. Advancement clause Trusts in default of children. and in such manner as the said A. B. and C. D. shall by any deed or deeds with or without power of revocation and new appointment jointly appoint And in default of any and subject to every such appointment then as the survivor of them shall in like manner or by will or codicil appoint (/) And in default of any and subject to every such appointment IN TRUST for all the children or the only child of the said intended marriage Avho being sons or a son shall attain the age of twenty-one years or being daughters or a daughter shall attain that age or marry under that age and if more than one in equal shares (u) Provided always that no child who or whose issue shall take any part of the said trust premises under any appointment in pursuance of either of the powers lastly hereinbefore contained shall in default of appointment to the contrary have or be entitled to any share of the unappointed part of the said trust premises without bringing the share or shares appointed to him or her or to his or her issue into hotchpot and accounting for the same accordingly (x) Provided always and it is hereby agreed and declared that (in addition to the powers of main- tenance and other powers by the Conveyancing Act 1881 or otherwise by law given to the trustees (y) ) it shall be laAvful for the trustees after the death of the said A. B. and C. D. or in their his or her lifetime with their his or her consent in Avriting to raise any part or parts not exceeding altogether one-half of the then expectant or jaresumptive or vested share of any child of the said intended marriage under the trusts herein- before declared and to pay or ajDply the same for his or her advancement or benefit as the trustees shall think fit (2) And it is hereby agreed and declared that if (0 See ante, pp. 407—414, 651 — 553 ; Williams on Settle- ments, 150—160. (m) See ante, pp. 416, 551 ; Williams on Settlements, 160— 164. (.r) See ante, p. 409 ; Williams on Settlements, 164, 166. (y) See ante, pp. 415, 416. (2) See Williams on Settle- ments, 166. APPENDIX. 649 there shall be no child of the said intended marriage who being a son shall attain the age of twenty-one years or being a daughter shall attain that age or marry under that age then (subject and without prejudice to the trusts hereinbefore declared) the trustees shall stand possessed of the said trust premises and the income thereof or so much thereof respectively as shall not have become vested or have been applied imdcr any of the trusts or powers herein contained or by statute implied upon the trusts following (that is to say) As TO the husband's trust fund and the investments and income thereof or so much thereof respectively as shall not ha\e become vested or haA'c been applied under any of the trusts or powers herein contained or by statute implied after the death of the said C. D. and such default or failure of children as aforesaid which shall last happen In trust for the said A. B. his executors administrators and assigns (a) And as to the wife's trust fund and the investments and income thereof or so much thereof respectively as shall not have become vested or have been applied under any of the trusts or powers herein contained or by statute implied after the death of the said A. B. and such default or failure of children as aforesaid which shall last happen In trust for such j^erson or persons and for such purposes as the said C. D. shall during coverture by will or codicil or when not under coverture by deed with or without power of revocation and new appointment or by will or codicil appoint {b) And in default of any and subject to every such appointment Upon the trusts follcjwing (that is to say) If the said C. D. shall survive the said A. B. then in trust for the said C. D. absolutely (but so that she shall have no power diu-ijig her said intended co\'ertiu-e to alien or anticij)ate her interest tlureiu) (<•) But if the said A. B. shall sur\i\c the said C. ]). tiien in trust for such person or persons as under tlie statutes for tlie distribution of the effects of intestates (d) would ha\ e As to fund settled by husband. As to fund settled bj' wife. («) See Williams on Settle- ments, 1G8 ; ante, p. 552. (6) Sco ante, pp. 405—407. (c) See ante, p. 651. (d) See ante, p. 523. 650 APPENDIX. Agreement to settle wife's other or after- acquired property above the value of 500Z. become entitled thereto at the decease of the said C. D. had she died possessed thereof intestate and without having been married such persons if more than one to take as tenants in common in the shares in Avhich they would have taken under the same statutes (e) And it is hereby agreed (/) that if the said C. D. now is or if during the said intended coverture she shall at one and the same time and from one and the same source become seised or possessed of or entitled to or empowered absolutely to dispose (otherwise than by Avill) of any real or personal property exceeding the value of 500/. (except jewels trinkets ornaments furni- ture plate pictures prints books carriages horses motor cars and other articles of the like nature) for any estate or interest whatever other than an estate or interest for the life or determinable with the life of the said C. D. then and in every such case the said C. D. and all other necessary parties (if any) will at the cost of the said trust estate as soon as circumstances will admit and to the satisfaction of the trustees convey assign and assure the said real or personal property to or otherwise cause the same to be vested in the trustees Upon trust that they shall with all convenient speed and in such manner as they shall think fit (but as to reversionary property not until it shall fall into possession unless it shall a2:)pear to the trustees that the capital of the trust estate will be probably injured by deferring the sale) sell oi call in and convert into money such part or parts of the said property as shall not consist of money or of stocks funds shares securities or propeity hereinbefore authorised as an investment And shall stand possessed of any money which shall arise from any such sale calling in and conversion and of such part or parts of the said pro- perty as shall consist of money or of such stocks funds shares securities or property as aforesaid and of the income thereof respectively upon the trusts hercin- (e) See Williams on Settle- ments, 144, 145, 168, 199 ; ante, p. 551 ; Williams' Conveyancing Statutes, 456 — 460 ; Be Smith, 1903, 1 Ch. 373 ; Re Brydone's Settlement, 1903, 2 Ch. 84. (/) See ante, pp. 558—560; WiiUama' Conveyancing Statutes, 234—238, 418, 419, 447. APPENDIX. 651 before declared and subject to the provisions herein- before contained concerning the wife's trust fund and the inv^estmcnts and income thereof respectively {^) Provided always that it shall not be obligatory on the trustees to enforce the agreement lastly hereinbefore contained or to take any proceedings to obtain the con- veyance transfer or payment to them of any real or personal estate Avhich may be or become subject to the said agreement unless and until they shall be required to do so by some person beneficially interested under the trusts hereinbefore declared and that the trustees shall not be liable or accountable iji respect of any such real or personal estate unless and imtil the same shall have been actually conveyed transferred or paid to them And it is hereby agkeed and declared that until Power to any hereditaments which shall have been i)urchased ^ *^^' ^,'V , •^ . i chased lanus. under the power in that behalf hereinbefore contained shall be sold the trustees may with such consent or at such discretion as aforesaid exercise over or in respect of the same or any part thereof the like poAvers of leasing {h) and other powers as are by sections to 13 both inclusive of the Settled Land Act 1882 and by the Settled Lajid Acts 1889 and 1890 given to tenants for life of settled land (i) and so that any money which shall become receivable under some exercise of any of the powers so hereby conferred and which if received under some exercise of any of the said statutory powers Avoidd be capital money arising under the said Acts {i) shall be payable to and received by the trustees and shall be invested or applied by the trustees as capital money And that the trustees may with such consent as Power to aforesaid iiermit the husband and the wife or either of Permit the ,.,...,. . , , husband or them durmg their joint lives or 1 he survivor of tliem to wife or their occupv rent free any messuage or lands comiirised in !•"'•'"'<' t"^ ' I 1 14- " 4 r I 1 4 1 1 r occupy anv any such Jiereditainents as alorcsaid and suitable for ii,,„se or land occupation as a residence or otherwise and the trustees I'lircliased. may at their discretion after the death of such survivor permit any issue of the husband and the wife who shall ((/) See ante, pp. 430—432, (i) 8ee Wilhams" P. P. 121— 551. 123, 21st ed. (h) See ante, p. 420, and n. (q). 652 APPENDIX. Power to expend money in repairs of or improve- ments to heredita- ments pur- chased. Persons to appoint new trustees. for the time being be aetually or presumptively entitled to the rents and profits of any sueh messuage to oecupy the same rent free And that the trustees may with sueh consent or at such discretion as aforesaid raise or retain out of the income or capital of any property for the time being subject to tlie trusts of these presents (Avhether forming part of the husband's or of the wife's trust fund) any money which the trustees shall Avith such consent or at such discretion as aforesaid consider necessary or expedient to be expended for the purpose of making any impro\ements alterations or repairs in or to or for the insurance against fire of any such hereditaments as aforesaid or for the purpose of paying the rent reserved by or satisfying the covenants contained in any lease whereby any leasehold hereditaments which shall have been purchased under the poAver in that behalf hereinbefore contained shall have been demised Provided always that this jooAver shall not prejudice abridge or affect in any Avay the right of the trustees to be indemnified out of the trust property and other- wise against their liability in respect of any rent or covenants of whi/:h they shall become personall}'^ liable for the payment or performance and it is in addition hereby exj^rcssly agreed and declared that the trustees shall be entitled to be indemnified against such liability out of any property for the time being subject to the trusts of these presents (whether foiming part of the husband's or of the wife's trust fund) and shall not be bound to see to the state of repair or condition or the insurance against fire or otherwise of any such here- ditaments as aforesaid or any messuage or building thereon and shall not be liable for any deterioration loss or destruction thereof And it is hereby agreed and declared that the husband and the wife during their joint lives and the survivor of them during his or her life shall be the proper persons and person to appoint new trustees or a new trustee of these presents {k) (k) See ante, Y).i21. APPENDIX. 653 Provided always and it is hereby agreed and DECLARED that if ill the execution of any of the trusts or poAvcrs of these presents it shall beeome necessary to divide or apportion between or among two or more persons the several funds the trusts Avhereof arc herein- before declared and all or any of the trust money stocks funds shares securities or property of which the said trust funds shall then consist shall be so blended together that it shall be doubtfvd which part or parts thereof shall have been produced by or substituted for each original fund or any part thereof respectively it shall be lawful for the trustees to divide or apportion the said trust money stocks shares funds securities and property between or among the several persons entitled thereto in such manner as the trustees shall deem just and reasonable according to the respective rights and interests of such persons And su.ch division or appor- tionment shall be as binding and conclusive upon all persons then or thereafter to be interested in the premises as if the same had been duly made by a Court of competent jurisdiction (/) And that if for any of the purposes of these presents it shall be necessary or expedient to set a value upon any hereditaments investments or property subject to the trusts hereof or any part thereof or share therein the trustees shall be at liberty to have such valuation made in such manner and at such time as they shall think })ro})er and the same shall be binding and con- clusive upon all persons then or thereafter beneficially ijiterested mider the trusts of these presents in any ])roperty subject to the trusts hereof And that (in addition to the ]>owers and indemjiity and right to reimbursement by law given to trustees {tn)) the trustees shall be at liberty on lending money on the security of or on purchasing any hereditaments or property to accept such title as they shall in their own absolute discretion think lit notwithstanding that the same be less than a good marketable title and shall not Power to apportion blended trust funds. Power to make valuations. Special powers to trudtcea. {I) As to trustees' receipts and powers to compromise, &c., see ante, p. 421 ; stat. 56 & 57 Vict. c. 53, s. 21 ; Williams' Convoy - anriu},' Statutes, 189 — 194. (in) See ante, pp. 425^29. 654 APPENDIX. Power for trustees to act by agents. Power for professional trustee to charse. Attestation clause. be answerable for any loss thereby occasioned (n) and that the trustees shall be at liberty at their discretion to release either gratuitously or for valuable considera- tion from any mortgage or security held by them as an investment of any money subject to the trusts of these presents any part of the property comprised in such mortgage or security on being satisfied that the re- mainder of the property comprised therein will be a sufficient security for the money so invested (o) And that the trustees shall not in any circumstances (other than those involving the exercise of some dis- cretion hereby conferred upon or entrusted to them) be bound to act in person but may employ at the expense of the trust estate any professional or business person or other agent to transact any business receive pay or deliver any money or securities or do any other act relating to the trust estate and shall not be answerable for any loss which may arise in consequence of their so acting by agent and not in person And that every trustee acting under these presents who shall be a solicitor or other professional or business person and shall act in his professional or business caiaacity on behalf of the trustees or in relation to the trust estate and in the execution of the trusts of these presents shall be entitled to charge and shall be remune- rated out of the trust estate for all work or business so done or transacted by him (including therein any acts which he might as a trustee have been required to perform in person) as fully in all respects as if he were not a trustee hereunder (p) In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written {n) See 1 Wms. V. & P. 288— 290, 2n(i ed. ; stat. 56 & 57 Vict. 0. 53, s. 8. (o) See 1 Wms. V. & P. 635— 637, 2nd ed. (p) See ante, p. 425, and Re Chappie, 27 Ch. D. 584, 587, as to inserting this and the previous power. APPENDIX, 655 The SCHEDULE above referred to. £2,000 £2-15 yer Cent. Consolidated Stock £350 Capital Stock of the Bank of England £2,460 Debenture Stock of the London and North- western Railway Compamj £500 South Australian Inscribed Stock Note. — Notice of the assignment to the trustees of the share of L. D.'s residuary estate must be given to his executors {q). iq) See ante, pp. 613—616. ( 657 ) INDEX A. Abatement of action, 171 n. of legacy, 505 AsiLiTy, representation as to, i6'J Absence beyond the seas, disability of, 51)7 n., 59*J n., 600, 604, 607 exception to joint liability, 460 n., 607 Abstract of title, 619 Acceptance of goods, what is, 78, 81, 82 of offer, 175 of bill of exchange, 33, 34, 202, 207 Accord and satisfaction, 256 Account, action of, 179 duty, 443 n. Accumulation, restraint on, 405 Acknowledgment of debt, 182, 188, 600—604, 607, 608 by vdic, 543 Act of bankruptcy, what is, 231, 260, 261, 268—271 Action, chose or thing in. .Sec Chose in Action. real, personal and mixed, 3 — 5, 18 personal, 4, 6—28, 162, 163, 215 and n. admiralty, in personam, 133 in rem, 26 n., 125, 131—133 limitation of, 599, 600 ex contractu, 162, 172 sq. ex delicto, 158 sq., 598, 599 modern procedure in, 18 n. abatement of ; 171 n. account, 179 w.P.P. 42 658 INDEX Action, ussump'^il, 178, 17'J debt, 16 n., 103, 179, 213 and n., 538, 598, 605, 606 detinue, 15, 19, 179, 597, 599 dilapidations, 166 infringement of patent, 361, 366 injuries to person or reputation, 163, 599 and n. replevin, 13, 20, 597 theft, 7 trespass, de ho ids asporkitis, 12 vi cl armis, 12 and n., 16 n., 597 on the case, 17 n., 179, 597 trover, 17—19, 52—55, 597 b}' and against executors, 31 n., 162 — 166, 486, 496, 497 by and against administrators, 31 n., 162 — 166, 517 by and against married woman, 534, 538, 556 and n., 561 — '573 by husband for arrears of wife's rent, 538 limitation of, 377, 597—612 Addition to a deed, 178 n. patent of, 349 Ademption of specific legacy, 503 Adjudication of bankruptcy, 276, 466 power of Court to annul, 278, 279, 299 Administration of estate ot deceased person, 114, 219 — 223, 227, 228, 235, 236, 239—244 and Table, 302, 303, 483 sq., 499, 507, 609 sq. of estate of deceased partner, 465 of trust by the Court, 429, 430 of wife's effects, 538, 558 duty on, 492, 493, 521 letters of, 518 limited, 520 AoanNiSTEATOE, 3, 244 and Table, 516 sq. actions by or against, 31 n., 162 — 166, 517 application to Court by, 519 transfer of stock by, 323 rights and powers of, 219—223, 518, 519 his year, 519 joint, 517 durante minore cetale, 484, 520 durante ahsentia, 520 ■pendente lite, 520 cum testamento anvexo, 521 de bonis non, 522 office of, not transmissible, 522 not bound to plead the Statute of Limitations, 609 of convict's property, 103 public trustee as, 517 u., 519 n. INDEX. 659 Admiralty, High Court of, 125, 224 n. jurisdiotion over ships, 125 — 136 action in rem, 125, 131 — 133 to enforce respondentia bond, 135 limitation of, 599, 600 jurisdiction of the High Court of Justice, 125, 133 of County Courts, 133 Advancement to children, to be accounted for in distribution, 506, 524, 525 form of power of, 648 Advertisement in bankruptcy, 276 of patent, 357 for creditors, 499 Affiliation order, 277, 298 After- ACQUIRED chattels, contract to assign, 99, 100 property, covenant to settle, when void on bank- ruptcy, 295 See Settlement. of bankrupt, 280, 296, 297, 299—301 Agency between partners, 472 of wife, 571—576 Agents, 82, 198 mercantile, 23 and n., 86 — 88, 592 power of trustee to act by, 654 Agreements, bonds for performance of, 238. See Contracts. stamp on, 184 n. to sell, 77 sq. Aqbiculttjbal fixtures, 144 sq. machinery privileged from distress, 104 (i) Alien, 101, 164 n., 267 enemy. See Enemy. will of, 480, 481 n. Alibnation of chattels, 2 by deed, 75 of choses in possession, voluntary, 69 — 103, 272 involuntary, 103—117, 276,280, 531 of chooco in action, vohmtary, 31 — 10, 168, 199 — 207, 250, 271, 307, 315, :{(;3, 375, 394, 397 n., 430 -440, 540 42—2 660 INDEX. Alienation of choses in action, involuntary, 167, 168, 199, 250 — 254, 274, 275, 343, 392, 450, 466 —469, 514, 531, 540 in fraud of creditors, 1 15, 1 16, 268, 271, 272 testamentary, 605 sq. Alimony, 577 Allotment of shares in companies, 334 — 337 Alteration of a deed, 178 n. Alternative liability, 464 Ambassador, goods of, privileged from distress, 104 (i) American law as to maritime lien for necessaries, 127 n. Animals /ercB iiaturix, 49, 104 (i), 154 Annuities, Bank. See Stock in the Funds. Annuity, assignment of, 33 n., 35 n. personal, 312, 313 apportionment of, 399 — 401 legacy duty on, 500 n. right of married woman to, 555 n., 560 Anticipation, restraint on. See Restraint. Appeal, Court of, 224 of larceny, 8 Appearance in an action, 18 n. Appointment, powers of, 405 — 414, 512, 559, 568 liable to debts of appointor, 406 to children, 407—416 illusory, 407 exclusive, 408 none to executors or administrators of deceased objects, 409 amongst a class, 409, 410 to issue of a child, when good, 411 fraudulent by a father, 412 creating a perpetuity', 412, 413 succession under power of, 442, 443 form of power, amongst children or other issue, 647, 648 by wife, 649 by wife in favour of her husband, 406, 650, 561 I^TDEX. 661 Appointment, duty on exercise of, 500 n. of new trustees, 421 of executor, 483 Apportionment of income, 399 — 401 power to apportion blended trust funds, 652 Apprentice to bankrupt, 289 Appropriation to contract, 79 of payments, 259, 260 Arbitration, 216 jurisdiction of the Courts in matters referred to, 216 Architectural works, copyright in, 371, 373, 377 Arrangements by deed between a debtor and his creditors, 219, 260—264 under control of Court of Bankruptcy, 276 — 279 Arrears of rent, 107 n., 233 limitation of actions for, 601 — 605, 611 actions by husband for, of wife's estate, 538 of interest on bond, 237 limitation of actions for, 604, 605, 611 of dower, 604, 605 Arrest on mesne process, 18 n., 228 — 231 of ship, 126, 131—133, 600 of debtor, 18 n., 228 Articles of association, 333, 334 Assent of executor, 484 of bailee, 73, 74, 82 Assets, equitable, 221, 222 payment of debts out of, 220, 221 executor not liable beyond amount of, 498 legal, 220, 221, 223 Assignees of bankrupt, 279 n., 292, 624, 629 official, 279 n. Assignment of choses in possession, 69 — 103, 272, 276 — 281 of choses in action. 31—40, 55, 199—205, 250—253, 307, 329, 338, 363, 375, 377, 435—440 by bankruptcy of transferor, 168, 199, 253, 254, 280, 343, 392 notice on, 37—40, 308, 378, 473, 613—617 inquiry on, 615 subject to equities, 37, 39 662 INDEX. Assignment of contracts, 31 — 33 of breaches, 238 of fixtures, 147 of growing crops, 152, 153 of policies of insurance, 170, 171, 307 — 311, 616 of stock, 315 of shares, 329, 338 of trade marks, 388 of letters patent, 363 of copyright, 43, 375, 377, 378 in trust for creditors, 260, 268, 277, 440, 441 of wife's property, 540, 543 a person may assign to himself, 610, 620 by a joint owner, 458, 459 of share in partnership, 459, 475 Association, memorandum and articles of, 333, 334 Assumpsit, 178 — 180 Attachment in equity, 19 n., 229 n. of debts', 251, 293 n. Attestation of warrant of attorney, 231 n. of wUl, 477, 478, 490 ' of bill of sale, 630, 631, 636, 637 clause in settlement, form of, 654 Attorney, power of, on assigning a legal chose in action, 34, 39 to receive dividends on stock, 316 n. warrant of, 231 n. Attornment clause in a mortgage, 627 n. Atjctioneer, how far agent, 83 Average, 136 A\vard, 216 effect of, 216 limitation of actions on, 606 B. Bailee, gift to, 73 possession of, 22, 56—62, 71—73, 587 liability of, 59—62 remedy of, 10. 11,22,61,71 Bailment, 11, 56—62 recovery of chattels in, 10, 22, 29 n., 57, 58 simple, 57 INDEX. 663 Bailor, remedy of, H, 22, 01, 71, 171) Bank annuities. See Stock in the Funds. notes, title to, 590 issuing notes, 203, 332 n. Bank notes, 40, 202, 203 larceny of, 42 n. seizure of, on distress, 107 n. Banker, 240 protection as to presented draft, 205 Banking companies, 203, 330, 331 sale of shares in, 342 Bankruptcy, 109—117, 218, 253, 266—303 Court of, 224, 272 Courts now exercising jurisdiction, 272. 282, 285, 296, 297,301, 302 County Court, jurisdiction of, 272, 274, 275, 301 alienation of choses in possession on, 110 — 114, 467 alienation of choses in action, 167, 199, 253, 281, 467 goods of which a bankrupt is reputed owner, 26 n., 112, 253, 343, 392,468 administration of estate of deceased debtor, 114, 219—223, 227, 228, 235, 236, 240—244 and Table, 302, 303, 465 n. receiving order in lieu of committal, 230 voluntary bonds and covenants in, 239, 244 (a) revival of debt barred by, 182 of principal debt no discharge to suretv, 249 discharge from debt by, 182, 259, 266," 298 Statutes, Hen. VIII. to 1882.. .266, 267 Crown not bound by l)ankruptcy statutes, 219 persons subject to the 1)ankruptcy laws, 219, 267, 268 acts of bankruptcy, 231, 260, 268—271, 273 proceedings in bankruptcy, 272 sq. petition. 270, 272—274 receiving order, 231, 272 — 276, 466 commission, 279 n. first meeting of creditors. 27.5 debtor's statement of affairs, 276 public examination of debtor, 27<'> adjudication of })ankruptcy. 276— 468 of married women, 562 of husband, 570 Beaker, bills and notes payable to, 202, 205 Bedding, privileged from distress, 104 (i) Benefice, dilapidations on, 166 right of nomination to, does not pass to trustee in bank- ruptcy, 280, 406 INDEX. 665 Benefice, sequestration of, in ))ankruptcj', 283 and n. Bequest of stock in funds, 323 of leasehokls, 394, 480 executorj^ 394 general, operates as an exercise of a general power, 407 to infants, 502 to persons beyond seas, 502 to charities, 507 — 509 to illegitimate children, 509, 510 to children, 498, 506, 509, 512 to joint tenant, 511 to tenants in common, 511 to a class, 511 residuary, 500, 506, 511 — 514 Betting. See Wagers. Bills of exchange, 24—26, 33, 40—42, 202—212 definition of, 202 larcenj' of, 42 n. seizure of, on distress, 107 n. what, prohibited, 203 acceptance of, 33, 202 negotiation of, 203 holder of, 33, 204, 209 in due course, 210 indorsement, 204, 205 consideration presumed, 209 payable to bearer, 202, 205 banker's protection, 205 liability under, 207 payment in due course, 206 l^resentment for payment, 207 notice of dishonour, 208 protest of, 208 days of grace, 211 payable on demand, 205, 211 summary procedure on, 211 n. stamp duty, 211 n. won on wagers void, 212 have no preference over other simple contract debts, 239, 240 always carry interest, 245 assignment of, 33, 202, 430 Bills of lading, 74 and n., 88 n., 89 and n., 134, 592 indorsement of, 134, 592 Bills of sale, 70, 85, 95—98, 113, 117, 121, 124, 147, 152, 153, 623—639 form of, 635 n 666 INDEX. Blank transfer of shares, 341 Board of Trade, control of, over trustees in bankruptcy, 262, 275 over Patent Office, 355, 361, 363, 380 Bona notahilia, 488 n. vacantia, 527 Bonds, 235—239 limitation of actions on, 461, 604, 605 voluntary, 239, 244 (b) of foreign government, 25, 40 and n., 344 joint, 451, 453, 460 joint and several, 453, 462, 463 stamp on, 238 n. Bonus, 398, 399 Bottomry, 128, 129, 135 Bovill's Act, See Stat. 28 & 29 Vict. c. 86. Breaches, assignment of, 200, 201, 238 British possessions abroad. See Colonies. ships, 118 subjects, wills of, 480 Broker, agency of, 83, 84 Brothers, right of, under Statute of Distributions, 525 Burden of an obligation not assignable, 201 C. Campbell's Act, Lord. See 9 &' 10 Vict. c. 93. Capacity, personal, 101—103, 173—175, 477, 533, 556—559, 584 Capias ad safisfacienchim, writ of, 228 Cargo, 134—136, 599 Carrier, 60—63 Certificate of ship's registry, 120 of mortgage and sale of ships, 124 bankrupt's, 290 n. of shares or stock, 338, 618 of payment of duty, 503 of incorporation of company, 334 INDEX. 667 Cestft qve irnst, 27, 425, 429, 438, filO, fill Champerty, 1G9, 193 Chancery, Court of, jurisdiction of, 20—28, 36, 89, 159, 222, 225, 319 n., 395, 429, 496, 546, 553 investments of, 314 Division. See High Court of Justice. Character, representations as to, 189 Charge on real estate. See Real. on Jiook debts of a company must he registered, 250 Charging order, 253 Charities, 103, 507—509 Charter part}-, 1 33 companies incorporated by, 41, 3^7. 328, 330 Charts, copyright in, 371 Chattels, 1 — 5 real and personal, 5, 21 n., 44 vegetable, 150 specific delivery of, in equity, 19 n. trusts of, 26—28 absolute ownership of, 44 which descend to the heir, 137, 141 modes of alienation of, 69 sq. after-acquired, licence to seize, 100 n. contract to assign, 99, 100 settled to go ^^ith land, 448, 449 of wife, 524, 534—538 title to, 586 sq. included in a bill of sale, 624 — 627. And see Goods. Cheques, 40, 205, 256 n., 436, 482 crossed, 206 crossed " not negotiable," 207, 587 n. won on wagers void, 212 Children, appointments to. 407 — 416 j'ounger, 410 ht vf-ntre, 411, 512 n., 515 of intestate, 518 n. have no insuraide interest in parent's life. 306 vesting of portions of, 414, 415 vesting of interests given to, 414, 415 maintenance of, 415, 416, 498, 556 n., 565, 648 alienation against, 476 gifts to illegitimate, 509, 510 668 INDEX. Children, gifts to, 498, 50G, 509, 510, 512 shares of, under Statute of Distributions, 3, 515, 524 form of powers of appointment amongst, 647, 648 form of trust for, 647, 648 Chose in action, 28—43, 158 -^q., 536, 597, 598 assignment of legal, 30—40, 168, 199—205, 250—254, 280, 281, 307, 329, 338, 363, 375, 392 assignment of equitable, 36, 437 gift of, 435—440 joint ownership of, 453, 454 o\ynership in common of, 456 wife's legal, 536—538, 541 wife's equitable, 538, 541 — 543 Statutes of Limitation as, to, 598 — 612 title to, 597—621 notice of assignment of, 613 — 615 in possession, 28, 46 sq. alienation of, 69 sq., 272, 276—281 title to, 586—595 Statutes of Limitation as to, 597 C.I.F. contract, 311 Civil law, maritime lien for necessaries by, 127 n. age at which a will may be made by the. 477 degrees of kindred traced according to the, 526 Class, appointment amongst a, 409, 410 betjuest to a, 511 Clergyman, action for dilapidations, 166 bankrupt, 283 Coat armour, 141 Cognovit, 231, 232 nn. Cohabitation, agreement contemplating illicit, 192 Collision at sea, 126, 170 Colonial stock, 324 Colonies, protection of invention in, 358 n., 366 of trade mark, 388 copyright in, 371, 379, 380, 381 Commissioners in bankruptcy, 279 n. Committal, receiving order in lieu of, in bankruptcy, 230 INDEX. 669 Committee of ijispection in baukruptcj', 279, 284, 285 in winding-up, 340 of lunatic, 175 n. Common, ownership in, 455 — 458, 511, 531 Pleas, Court of, 160, 224 n. Companies Acts, 331 joint stock. See Joint Stock Companies. Compensation for agricultural improvements, 145 limitation of action for, 601 Composition wth creditors, 219, 260 — 265 under the Bankruptcy Act, 1883. ..263, 277—279 CoMPEOMiSE as consideration in a contract, 181 of criminal proceedings, 192 of matrimonial proceedings, 584 Comptroller of patents, trade marks, &c., 349, 355 — 359, 364, 368, 380, 381, 384, 385 Condition of bond, 236—239 Conjugal rights, application for restitution of, 576, 582, 583 Consent to contract, 175, 197 to change of investments, 417 — 419 judgment by, 231 Consideration necessary to a contract, 177, 180 — 183 unless by deed, 177, 193 n. valuable, 180 for a bill or note, 210 executed or executory, 181 past, 181 and n. when required to be in writing, 83, 184 presumed for a bill or note, 202, 210 for creditor's deed, 263 n. Consols. See Stock in the Funds. Constructive delivery, 72, 73 possession, 58, 70 Contingent liabiUties, estimate of, in bankruptcy, 289 and n. remainders, none in personal estate, 403, 404 interests, 404, 416, 524 n. Contract notes, 31b and u., 324 670 INDEX. Contracts, 161, 172 s-7., (jOO early view of, 30 and a. delinitiou and essentials of, 173 capacity to nialce, 173 — 175 offer and acceptance, 175 consent, 175, 197 consideration, 178, 180—183 simple, 177—189 special, 177, 178 alterations in, 178 n. required to be in \vritin<,% SO — 85, 183 — 189 legality of object, 189 — 197 only affect parties tliereto, 198 assignment of, 31, 32, 199—205 breach of, 200, 201, 212—216, 598 to assign after-acquired chattels, 99 — 101 for sale of goods, 77 — 85 to answer for another, 184, 185 Avith creditors, 260, 264, 268, 277, 278 disclaimer of bankrupt's, 281, 282 of insurance, 191, 304—311 bills and notes, 201—212 for sale of stock, 317, 318 by married woman, 174, 534, 544, 550, 556 n., 561 — 576, 584 bankruptcy of joint contractor, 456 CoNTfilBtJTION, 247, 461 CONTRIBUTOKIES, 339, 565 Conversion, 53 and n., 587, 589 n., 599 of money into land, or land into money, 419, 420, 447, 645 Conveyance. See Alienation. Convicts, 103, 175 Co-owners of ship, 119, 132 Copyhold, 4 of bankrupt, 282 estates, limitation of actions for fines for, 606 Copyright, 43, 368—382 statutes, 369, 370 subject matter of, 370, 371 area of, 371 definition of, 372, 373 investitive facts, 371 duration of, 369, 373, 374 ownership of, 374, 375 INDEX. 671 Copyright, publication, mfaiiiii<^ of, 'M2 compuLsory licoiico, 373, 374 assignment of, 43, 374, 375, 377, 378 reversionary interest in author's representatives, 375 in dramatie and musical compositions, 309, 370 — 373, 377, 378 in musical records, 372, 374, 370 n. in architectural works, 371, 373, 377 in Crown works, 374 in encycloppcdias, reviews, &e., 375 n., 377 in newspaper articles, 374 n., 375 n., 377 in prints, maps, &c., 371, 377 in sculptures, 369, 370 n., 371, 377 in paintings, drawings, &c., 309 — 371, 373, 377 in photographs, 371, 374, 375 n., 377 in letters, 374 n., 377 in lectures, 372 n., 377 existing at commencement of Copyright Act, 1911. ..377, 378 infringement of, 370 and n. limitation of action for, 377 summary conviction, 377 foreign reprints, 370 n., 376 n., 377 whether foreigner entitled to, 372 n. register of proprietors, 371 n. in works pubhshed abroad, 379, 380 in designs, 380—382 international, 379 and n., 381, 382 colonial, 371, 379, 380, 381 Corn, 150 CuRPOEATioNs, 103, 119, 175, 325 Costs of solicitors' letters, 250 n. of trustees, 425-^27 against married woman, 564 Co-sureties, 247 County Courts, jurisdiction in replevin, 13 n. equitable jurisdiction, extent of, 36 n. execution of judgments, 108 admiralty jurisdiction, 133 bankruptcy jurisdiction, 274 — 276, 301 garnishee proceedings in, 251 n. trustee jurisdiction, 430 n. probate jurisdiction of, 491 jurisdiction in administration, 497 n., 518 n. jurisdiction in (luestions between husband and wife, 571 removal of judgments into iSuperior Court, 109 n. 672 INDEX. Court, funds in, 430, 610. See High Court of Justice and Chancery, &c. Courts of Record, 224, 225 Covenant, 179, 235 voluntary, 239, 244 (b) to insure against fire, 309 for future settlement, when void in baniiruptey, 295 creates no lien, 433 for settlement of wife's future property, 430 — 432, 552 553, 558, 650 to settle husband's property, 99 n., 295, 433 joint, 451, 453, 460 joint and several, 453, 462 not to sue one debtor, 460 n., 463 for title, 619 limitation of actions on, 604, 605 Coverture, disability of, 533, 597, 599, 600, 604 Ckanworth's Act, Lord. See Stat. 23 & 24 Vict. c. 145. Credit, representations to obtain, 189 Creditors, conveyances for defrauding, 115 — 117, 268, 271 remedies of judgment, 19 n., 103—114, 226—233, 270, 321, 343, 469, 470, 495, 514, 516 arrangements with, 219, 260—265, 268, 276—279 petitioning on bankruptcy, 244 (a), 272 sq.. secured, 244 n. and (a, b), 264 n., 273, 275, 290 of company, 224, 228, 244, 338—340 of appointor, 406 joint, 455 interest of, in life of debtor, 305 voluntary settlement void as against, 115, 294, 303, 434 trust for payment of, when revocable, 440, 441 may by custom take out administration, 517 Statutes of Limitation not affected by death of, 608 Criminal proceedings by husband and wife, 556, 564, 571 agreement to stifle, 192 Appeal, Court of, 225 Crops, 104 (n), 150—153, 627, 629, 634 Crown, forfeit of goods to the, 9, 102, 168 assignment of chose in action by, 30, 31 n. prerogatives, 49 and n., 50 n., 105, 221, 225 n., 226 to grant letters patent, 347, 348, 354 not bound by bankruptcy laws, 219, 223 debts, 105, 219, 223—226, 241—244 and Table (b), 288 INDEX. 673 Crown' jewels, 141 grant of charters to companies by, 320, 327 right of, to intestate's estates if no next of kin, 527 works, copj'right in, 374 not bound by Statutes of Limitation, 602(i Delicto, action ex, 159 sq., 598, 599 Delivery of personal chattels on alienation, 09 — 74 constructive, 72 mortis causa, 481 — 483 order, 74 and n., 82, 87 n., 98, 593, 626 Demand, payment on, 211 Demonstrative legacy, 504 Denizen may be lianknipt, 207 Deposit, forfeiture of, for V)rcach of contract, 215 Descent of chattels, 2, 137, l(i2, and see Distribution. of leaseholds, 523 to distant heirs and kindred, 530 compai'ed with distribution, 528 — 531 Description, sale of goods b^-, 596 and n. Designs, copyright in, 380—382 Detinue, action of, 15, 17 n., 19 limitation of action of, 597, 599 Devastavit, 566 n., 601 Dilapidations, 166 Directors of joint stock companies, liabilitj- of, 333 DiSARiLiTiES, savings of, 597 n., 599 n., 600, 604, 606 Disc]iarge of bankrupt, 218, 296—299, 460 Disclaimer of onerous property of bankrupt, 199, 281 of title or specification of hnention, 359, 360 Dishonour of bill or note, notice of, 208 DiSPOSAi-, right of, 79 Distant heirs and kindred, remarks on descent to, 530 43—2 676 INDEX. Distress, infinite, 18 n. for rent, 13, 67, 104 and Table, 244 n. and (b), 288, 538 in bankruptcy, 244 (a), 288 limitation of, 605 for Crow n debts, rates and taxes, 105, 633, 634 goods privileged from, 104 (i, ii), 105 n., 106 n., 110 n. under Summary Jurisdiction Acts, 106 and n. registration of instruments giving, 625, 630—632 Distribution of intestate's effects, 3, 515, 516, 522—531 Distringas, 319, 616 notice in lieu of, 319, 324, 342, 616 DiAaDENDS in bankruptcy, 287 of stock in the funds, 316 and n., 320, 321 aijportionment of, 399 — 401 unclaimed, 612, 613 Divorce Court, 225 n., 576—583 Dock warrant, 87 n. DocrMENTS of title, delivery of, 23 n., 87 and n., 89, 90, 593, 618, 619, 620 DoMiciL of testator, 480 of intestate, 522 Donatio mortis causa, 481 — 483 liable to estate duty, 483 Dormant partner, liability of, 464, 468 Dower, 533 legacy in lieu of, 505 limitation of actions for arrears of, 604, 605 Dramatic pieces, copyright in, 369, 370 — 373, 377, 378 Drawee of a bill, 202, 203 Drawer of a bill, 202, 207 Drawings, copyright in, 369 — 371, 377 Drunken man's contract, 174 Durante abseutid, administrator, 520 minore cetate, administrator, 484, 520 Duress, 198 Duty. See Estate, &c., and see Stamp. INDEX. 677 E. East India Stock. Ses Indian. Ecclesiastical benefice, sequestration of, 283 dilapidations, 166 Court, jurisdiction over wills, 476, 488, 489 and n. on intestacy, 515 — ^517 over matrimonial causes, 576 Education of children, provisions for, 193, 415, 416 Ejectment by one executor, 486 Election that lands should not be sold, 420 Elegit, writ of, 107, 109 n. Emblements, 150 — ^153 Employer, liability of, under Workmen's Compensation Act, 242, 254 n. rights of under contract with insurers, 254 n. Encyclopaedias, copyright in, 375 u., 377 Enemy, contracts of, 175 Engravings, cojiyright in, 36'J — -371, 373, 377 Equitable chose in action, 35, 437, 536, 538 — 541, 614 assets, 221, 222 payment of debts out of, 220, 221 rights, 161 interests in chattels, 26—28, 06—98, 110, 120, 450 shares. 340 Equitable life interest, 395, 540 charge, 340 execution, HO, 253, 450, 514, 531 lien, 602 n. Equity, doctrines of, as to assignment of choses in action, 36 and n., 316, 363 chattels, 96 after-acquired chattels, 99 stoppage in transitu, 89 mortgages, 95 penalties in bonds, 237, 238 payment of debts in bankruptcy, 242 678 INDEX. Equity, doctrines of, as to partnership debts, 465 appointment of debtor executor, 487 conversion, 419, 420, 447, 454 trustees, 27, 425 sq. voluntary trusts, 70 promise without consideration, ISO and n. delivery up of deeds, 139 joint and common ownership, 454 — 456 appointments under powers, 407 maintenance of infants, 415, 416 wife's separate estate, 102, 432, 536, 546—550, 559 equity and law now administered in the same Court, 160 enforces specific delivery, 19 n. considers as done what is agreed to be done, 99, 419 of wife to a settlement, 538 — 540, 543 Escape, limitation of action for, 606 Estate, real and personal, 5, 21 n., 44, 393 duty, 440 n., 443—447, 452, 492, 521 rate of, 445 and n. persons acccountable for, 445, 446 Estoppel by conduct, 25 n. ESTEAYS, 50 n. Evidence required on probate, 490 Exchequer, Court of, 160, 224 n., 319 n. Exclusive appointment, 408 Execution in real and personal actions, 18 — 20, 226, 230, 293 in detinue, 20 in replevin, 21 against chose in possession, 104 — 111 action, 104, 251 against ships, 125 stock, shares, &c., 319 n., 321, 329 patents, copyrights, &c., 392 equitable interests in chattels, 450 legacy or share of residue, 514 share of intestate's estate, 531 partnership, 469, 470 an act of bankruptcy, 269 duties of sheriff in case of bankruptcy, 293 sale of goods, ho'w affected by, 107—109, 593, 624, 629 INDEX. 679 Executor, 3, 483 fS7 Issue, appointment to, 411 form of power of appointment amongst, 647 and allotment of shares in companies, 334 — 337 Jetsam, 50 n. Jettison, 136 Joint grantees of patent, 357, 358, 360, 361 o\raers, 119, 132, 316, 451, 455, 535 mortgagees, 455 creditor, bankruptcy of, 456 bond or covenant, 451, 453, 460 or several obligees or covenantees, 453 liability, 460—462, 607 and several liability, 462 of partners, 464 — 16'J, 472—474 bond and covenant, 462, 463 bequest, no la2)se, 511 ownersliip, severance of, 458 authorship, term of cop\'right in, 373, 374 Joint stock companies, 40, 325 — 346 incorporation of, 326 — 334 Companies Clauses Acts, 328, 331 sq. inconvenience of unincorporated, 329, 330 banking, 331 n., 332 and n. sale of shares in, 342, 343 liability of shareholders in, 326 — 333, 337 — 340 registration of, 332 — 334 may have directors witli unlimited liability, 333 private, 331 and n., 334 n. memorandum of association, 333 power to reduce capital, 333 articles of association, 333 register of members, 337 shares under the Companies Acts, 331 — 340 are personal estate, 338, 507 n., 617 transfer of, 338 sale of, 341—343 settlement of, 398 title to, 617, 618 issue and allotment of, 334 — 337 scrip, 328 debentures, 41, 344, 507 n., 639 liquidator, 340 \\ inding-up of, 224, 226, 244, 338—340 contributories, 339 688 INDEX. Judge's order, 231—233 Jttdgmen'T, effect of, on goods, 103 — 11 1 in tort, 171 creditors, remedies of, 19 n., 10(5—111, 114,228—235, 260, 321, 343, 469, 470, 495, 514, 516 - debt, 19 n.. 106—111, 171, 220, 226—233,244 (a, b), 252 n., 260, 343 foreign, 227 Scotch and Irish judgments, 109 n. removal of judgments of inferior Courts, 109 n. charge of, on stock, 321 on shares, 343 on partnership property, 469, 470 against joint de))tor, 4()0 and n., 469, 470 by consent, 231 limitation of actions for money secured by, 601, 602 satisfaction of, 93 against executor or administrator, 220, 234 married ^\■omen's property may be bound by, 544 Judicial Committee of Privy Council, 350 n., 373 separation. See Separation. Jus disponendi, 79 Jus tertii, 50, 51 K. Kin. See Next. KiNDEED, degrees of, how traced, 526 remarks on descent to distant, 530 King, assignment of chose in action by, 31 n. King's Court, 4 ^ . ships, no action can be bi'ought against, 127 Land, vesting of portions charged on, 414 power to invest trust money in purchase of, 418 — 420 purchased, poA\ers of trustee regarding, 651, 652 money settled as, 447 proceeds of sale of settled, 447, 602 n. chattels settled to go with, 448, 449 warrantj^ on sale of, 33 n., 35 n., 138 devise of, to charities, 507 — 509 INDEX, 689 Land, limitation of action for money cliarged on, tiUl — UU:J and an... G07 Lands Clauses Act. Sec 8 & U Vict. c. 18. Lapse of legacy, 511 — olli of residue, 512, 513 Larceny, appeal of, 8 by finder, 50 n. indictment for, 9 of bills, notes, and other securities, 42 n. Law and Equity administered in the same Court, 1(31 Lawful money, 255 n. Leaseholds, incluiled in chattels, 5, 21 n. disclaimer of bankrupt's, 281, 282 covenant to insure, W.) bequest of, 394, 48U settled to go w ith freeholds, 450 liabihty of executor for, 499 succession duty on, 501, 502 descent of, 523 Lectures, copyright in, 372 and n., 377 Leebun's Act, 343 n. Legacies, no action at law for pecuniary, 30 payment of, 498 — 503 interest on, 498 legacy by parent, 498 duty, 49*3 n., 500—503 on annuities, 500 n. where legacy charged on real estate, 502 discharge of executor from, 503 exemptions from, 501 n., 502 n. specific, 484, 503 demonstrative, 504 general, 504 in lieu of dower, 505 satisfaction of debts ))y, 505 satisfaction of portions by, 50<) to charities, &e. Hog Bequest. adem^jtion of, 503 abatement of, 505 lapse of, 511 — 513 Umitation of suits for, 602, 603, 609, 611 Legal assets, 220 — 223 rights, 448 choses in action of wile, 530 — 538, 541 tender, 255 and n. W.P.P. 44 690 INDEX. Legatee, residuary, .111 — 514 Lessee, right tu iixtuics, 112 — laO embleinent.s, 150, 151 game, 155 Letter of attorney, 34 Letters patent, incorporation of companies by, 327, 330, 332 for an invention. See Patent. copyright in, 374 n., 377 Levari /aciV<*% writ of, 108 n. Liability, limitation of, by letters patent, 330 joint, 460—462, 607 joint and several, 462 alternative, 4(i4 of shareholders in joint stocii companj^ 327 — 340 of bankrupt, 289 n. of i^artners in trade, 464 — 470, 472 — 475 of executor carrying on trade, 469 of executor for debts, 469, 498—500 Licence to kill game, 155 letter of, 260 to use patent, 361 for reproduction of copyright work, 373, 374 Lien, 62—67 particular, 62 general, 64 equitable, 601 n. how lost, 67 of innkeepers, 63 of solicitors, 64 — 66 of vendor, 66, 86—91, 601, 602 n. maritime, 126 — 131, 599 and n. for general average, 136 from covenant to settle, none, 433 limitation of action for money secured by, 601 — 603 Life insurance. See Insurance. no estate for, in personal property at laA\', 393 bequest of term for, 394 interests in equity, in personalty, 395, 540 right of tenant for, as to bonus, 398 as to deeds, 140 and n. as to fixtures, 148 as to emblements, 151 apportionment of income of tenant for, 399 — 401 LiGAN, 50 n. INDEX. 691 LI^^TATION of absolute interest iu personal estate, 403 to joint owners, 452 Limitations, .Statutes of, 2G, 182, 597 — ()12 revival of debt barred by, 2<>, 182 as to choses in action, 188, 5ij7 — 612 as to joint debtors, 4(il, 007 trustees may plead, 428, 611 executors or administrators not bound to plead, 609 effect of, 608 Crown not bound by, 606 Liquidated damages, 214 — 216 Liquidator of joint stock company, 340 Live- stock privileged from distress, 104 (i, ii) Loan, 74 to trader, 244 (a, b), 471, 472, 570 by wife to husband, 570 London Court of Bankruptcy, 225 n. custom of, 267, 476, 523 n., 589 Lord of manor, right to kill game, 156 Lost goods, 16, 50, 5() Lunatic, 101, 174, 268 disability of, 597, 599, 600, 604 vesting of stock, &c., 424, 425 M. Machinery, 144—150, 627, 628 privileged from distress, 104 (i) Maintenance, crime of, 35, 40, 169, 192 of children, provisions for, 415, 416, 498, 556 n., 5()5, 648 of husband, 556 n., 565 Maker of promissory note, 34 IVLUiiNs' Act, 543 Manufactured goods, property in, 25 44 2 692 INDEX. Manufactures, patent for new, 351 copyright in designs for articles of manufacture. 380—382 Maps, copyright in, 371, 377 Marine insurance. See Insurance. Mariner's wages, 127, 130, 131. And see Seamen. Marines, wills of, and administration to, 479, 492 n. Marital rights, fraud on husband's, 545 Maritime law, 125, 599, 600 lien, 126—131, 599 and n. interest, 128 Market overt, purchase of chattels in, 8, 9 n., 15, 588 Marks, trade, 382—388 warranty as to, 596 Marriage, a valuable consideration, 181, 433 restraints on, 193 settlement. See Settlement. dissolution of, 576, 581 Married Women's Property Acts. See Wife. Married woman. See Wife. Master, ship's, wages, and disbursements of, 127, 130, 131 bottomry bond given b}', 128, 129, 135 sale of ship by, 129 of cargo by, 135 Matrimonial causes, Court for, 226 n., 576 — 582 Medical practitioners, unqualified, 191 Memorandum in writing, what is, 83, 187, 188 of company, 333 Mercantile agent, 23 n., 592 Mesne process, 18 Metropolitan stock, 324, 612 Minor, will of, now invalid, 477. See Infant. Mistake and Misrepresentation, 198 INDEX. 693 Mixed actions, 4, 18 Models, copyright in, '.ild Money, lawful, 2r^~^ and n. privileged from distress, 104 (i) settled as land, 447 wife's charged on real estate, 543 title to, 589 limitation of action for money secured by bond, 604 paid by mistake of fact, 001 secured by mortgage or charged on land, 601 — 603, 607 Money-lenders, contracts of, 191 and n. MoNOPOUES, Statute of, 347, 348, 351 Mortgage of goods. 38, 40, 93—90, 113,116, 345 n., 346 n., 601—603, 625 sq. on book debts of a company must be registered, 250 of land in England devolves according to English law, 480, 523 of ships, 122—125, 130, 134 limitation of action for money secured by, 601 — 603 Mortgagee of shares, power of sale by, 341 Mortis causa, donatio, 481 — 483 liable to estate iluty, 443 Mortmain Acts, 507 — 509 Mother, right of, under Statute of Distriliutions, 525 Municipal stock, 324 Musical compositions, copyright in, 309, 370 — 373, 377, 378 records, copyright in, 372, 374, 376 n. N. Natitralisation Act, 1S70. See Taple of Statutes. Navy, wills and administration to seamen in tiio, 479, 492 n. Necessaries supplied to ship, 128 and n.. 131 infant, 174 lunatic, 174 n. husband bound to supply liis wife with, 571 — 57(> 694 INDEX. Negotiable instruments, 24—20. 134, 201, 203, 343. 344. 426, 589, 591 n. See Bills of Exchange ; Promissory Notes. Nephews, appointment to, 410 Newspaper articles, copyright in, 374 n., 375 n., 377 Next of Kix, right of, to administration, 517 to intestate's effects, 517, 526, 531 how traced, 526 Nihil Dicit, 231 n., 232 n. Note of a contract, what is, 83, 187 Notes. See Promissory Notes ; Bank Notes ; Contract Notes. Notice to debtor on assigning the debt, 37, 38, 613 — 617 to pay judgment debt, 270 of assignment of life policies, 307, 616 to creditors, 271 of dishonour, 208 in lieu of distringas, 319, 324, 342, 616 by executors, 499, 503 to one partner notice to all, 473 to trustees on assigning stock. 613 Novation, 32, 201 Nullity of marriage, 577, 581 and n. Nuncupative Will, 477, 478 O Objects of a contract lawful or unlawful, 189 — 197 Obligation, 158, 172, 180, 598, 600 n. Occupancy, 48, 50, 586 Offer, acceptance of, 175 Officer, bankrupt, 283 distribution of effects of, 492 n. Official assignees, 279 n. Official Receiver, in bankruptcy, HI, 114, 275, 279 n. INDEX. 695 Order, garnishee, 202, 253 charging, 322, 325, 450, 470 vesting, 423 to transfer stock, &c., 423, 424 receiving, 230, 274—276, 466 administration, 4()<), 497, 609 protection, 579 separation, 580 for variation of settlements, 582 Order and disposition, goods in, of bankrupt, 25 n., 112, 254, 281, 343, 468, 624, 633 choses in action in, of bankrupt, 281, 614, 617 Origixatixg summons, 429, 496 n., 497, 571 Overseer, debt to parish, 240, 244 (a, n) OuTLA^VRV, 18 n., 20 n., 102 and n., 168, 175, 271 n. Ownerless things, 49, 598 OwxERSiiH' of personal property, 2, 10, 14, 24, 46 — 50, 52, 77, 92, 374, 384 limitations of, 24 — 26 acquisition of, 48 reputed, 25 n., 1 12, 254, 281, 322, 343, 392, 468, 614, 617, 624, 633 joint, 119, 132, 316, 451, 455, 51 L 535 in common, 455 — i->S, 511, 531 without possession, 47, 52 — 68 P. Paintings, copyright in, 3 4, 158 action for, 161 — 171 death of party, 162—166 assignment of, 169 — 171 wife's, 534 544, 545, 556 n , 561—570, 579 n. limitation of actions on, 377, 599 Towage, 131 Trade, contracts in restraint of, 193. 362 implements privileged from distress, 104 (l) fixtures, 142—150, 627, 628 INDEX. 709 Teade, liability of partners in. See Partners. of executor carrying on, 469 customs of, 112, 208, 250 Trade Marks, 382— 388, 596 application for registration of, 385 non-user of, 387 assignment of, 388 international and colonial protection of, 388 Trade Names, 389, 390, 596 Trader, within the bankrupt laws, 219, 261 n., 266, 267, 562 loan to, 244 (a, b), 471, 570 Trade Unioxs, 195 Transfer of possession, 71 — 74 of stock, 313—330, 397 n., 555 n., 560, 567 of shares, 329, 338, 397 n., ooo n., 560, 567 of causes, 496 n., 497 n. Treasure trove, 50 n. Trespass, action of, 12 and n., 17 n., 597 on the case, 17 n., 179, 597 de bonis as portal is, 12 x-i et armis, 17 n. Trover and conversion, 17 — ^19, 53 — 55, 597, 599 Trust, of chattels, 26—28, 69, 96, 99 though voluntary', enforced in equity, 70 none entered on ship's register, 119 in bank books, 316 in register of members of company, 342 settlements by means of, 396 for payment of creditors, 260—262, 268, 277, 440, 610-612 for wife's separate use, 102, 535, 546 — 551 forsale, 419, 528, 046 how affected by the Statute of Limitations, 610 — 612 form of, in marriage settlement, 645 sq. Trustee Act, 1893. See 56 & 57 \'ict. c. 53. Trustee in bankruptcy, powers of , 1 1 1 — 113, 146, 167, 199, 218, 279 sq., 292, 299—303, 325, 343, 392, 406, 514, 614, 629 possession of, 279 relation back of title of, 292—294 accounts of, 285 what actions pass to, 167 710 INDEX. Trustee, interest of, sufficient to support life insurance, 306 investment of trust money, 314, 417 — 430 and Table application of income for maintenance, 416 transfer of stock in name of, 316 receipt of, 421, 653 n. appointment of new, 421, 652 retirement of, 421 vesting trust property in new or continuing, 422, 423 of bankrupt, 279 costs of, 425 — 427 liability of, 426—429, 612, 613 indemnity and reimbursement of, 426, 427, 654 limitation of actions against, 428, 429, 612, 613 application to and payment into Court by, 429, 430 audit of accounts of, 430 trustees made joint owners, 452 solicitor, 425 married woman, 566 — 568, 578 n. judicial, 422 public, the, 422, 430, 497 and n., 517 n., 519 n. notice to, on assignment of chose in action, 613 — 615 inquiry of, as to prior assignments of choses in action, 615 powers of, under marriage settlement, 645 sq. clauses in settlement, forms of, 652, 653 survivorship of office, 643 n. release by, 654 U. UXDISCHAEGED bankrupt, 297, 300 Undue influence, 198 Unlawful contracts, 188—197 Unliquidated damages, 200, 201 Use, convej-ance by way of, 139, 397 gift of, 396 Usury laws, 245 V. Valuations, power of trustee to make, 653 Variation of settlements, 582 Vegetable chattels, 150 INDEX. 711 Vendor's, lien, 66, 86— 88,' 602 n. right of re-sale, 91 Veedict, effect of, 171 Vested interests, 402 the Courts lean to, 414 giving, to children by settlement, 414, 415, 452 Vesting trust property in new or continuing trustees, 422, 423 of shares of joint owners, 452 of shares in intestate's estate, 531 VrLLENAGE, 4 Voidable title. See Purchaser. Voluntary trust enforced, 70 conveyances by deed, stamp duty on, 75 n. conveyance of lunatic, 101 bond and covenants, 239, 244 (b) settlements, 116, 294, 303, 397 n., 434, 439—441 stamp duty on, 397 n. gift of choses in action, 435 — 440 W. Wager of law, 18 n. Wagers, 195 and n, 211, 212, 310. Wages, mariners' and master's, 127, 130, 131, 479 servants', &c., on bankruptcy, 244 (a), 288 right of wife to, 555 n. AV'aifs, 50 n. Wales, custom of, 476, 523 n. War, instruments or munitions of, improvements in, 365 Warrant of attorney, 231 n. stamp on, 232 n. Warranty, by feoffor, 33 n., 35 n., 138 on sale of goods, 35 n., 594 — 597 712 INDEX. Waste, tenant \\ithout impeachment of, 153 being impleaded of, 153 by incumbent, 166 n. Weaeing apparel privileged from distress, 104 (i) Widow, usually preferred in grant of administration, 517 her share on her husband's intestac}-, 3, 515, 523, 524 Wife, alienation of chattels by, 102 alienation against, 476, 533, 535 life insurance bj', 307, 308 has insurable interest in husband's life, 306 po\\ers given to, 406 covenant to settle her future proj^erty, 430 — 432, 552, 553, 558, 559, 650 voluntar}' settlement by, 434 infant, settlement by, 432, 553, 554, 559 bankrupt, 267, 562 trustee, 566—568, 578 n. agent of husband, 571 — 576 executrix, 484—486, 566, 567 dut3' on legacy to, 500, 501 and n. a /ewie covert, 533 chattels personal belonged to her husband, 524, 533 — 536 paraphernaha, 535, 558 n. legal choses in action, 536 — 538, 541 equitable choses in action, 536, 538 — 541 equity to a settlement, 539, 540, 543 disposition of her reversionary interests, 431, 541, 543, 557 n. actions by and against, 534, 538, 556 and n., 561 — 573 contracts of, 174, 534, 544, 550, 556 n., 561—576, 584 debts, 534, 538, 544, 556 n., 561—576 torts, 534, 544, 545, 556 n., 561—570, 579 n. maintenance, 572 — 575, 577 Mill of, 545, 546, 557, 558 and n., 568 separate estate in equity, 102, 431, 432, 535, 546 — 551, 561 restraint on her anticipation, 428 n., 548 — 550,560, 562 — 566, 578 n., 581 n., 582 n., 583, 647, 649 general engagements binding separate estate, 550 position under Married Women's Property Act, 1870.. .554 — 556 1882..557sr7. habilit}' to maintain husband and children, 556 n., 565 criminal proceedings by and against, 556 n., 564, 571 loans to husband, 570 deserted by husband, 505, 574, 575 n., 576 separation, 573—580, 583—585 alimony', 577 protection order, 579 divorce, 576, 577, 580, 581 restitution of conjugal rights, 576, 582 form of trust as to fund settled b}', in marriage settlement, 645 — 650. See also Husband. i INDEX. 713 Will, tenant at, 153 capacity to make, 477 nuncupative, 477, 478 of chattels, 2, 476 sq. of stock, 322, 323 in exercise of power, 406 attestation of, 477, 478, 490, 491 revocation of, 479 ownership in common created by, 457 donucile of testator, 480 executor of. See Executor. probate of, 488 — 492 of wife, 545, 546, 557, 558 and n., 568 of seamen, 477 — 479 of alien, 4S0, 481 n. Winding-up of company, 224. 228, 242 and n., 211, 338—340 WiTHEBNAM, 20 n. Witnesses to a will, 477, 478, 490, 491 husband and m ife as, 565 n., 571 n. to a bill of sale, 636, 637 Workmen's Compensation Act, 1906.. .288 employer's liability under, 242, 254 n. rights of employer against in- surers under, 254 n. Wreck, 50 n. Writ of capias ad satisfaciendum, 228 distringas, 319 n. elegit, 107, 109 n. fieri facias, 107—110. 125, 320 levari facias, 108 n. scire facias, 368 sequestration, 392 n. summons, 18 n., 21, 429, 496 n., 497, 571 Writing, contracts required to be in, 80, 83, 183—188 consideration required to be in, 83, 184 on assignment of legal chose in action, 39 not required for gift oi chattels, 70 required for assignment of trust, 97 acknowledgment of barred delit, 182 601 raaiine insurance, 310 transfer of shares, 338, 342 assignment of copyright by, 37.'i sealed, 177 Wrong. See Tort. W.P.P. 46 714 INDEX, Year, agreement not to be performed within a, 85 of executor, 498 of administrator, 519 York, custom of province of, 476, 523 n. probate in province of, 488 n. THE END. BRADBURT, AGNEW, & CO. LD., PRINTERS, LONDON AMD TONBRIDGK. Si I LOS A«i '^^ LOS ANGELm <& AA 000 885 082 8