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 PRINCIPLES 
 
 LAW OF PEUSOIAL rHOrERTI, 
 
 INTENDED FOB 
 
 THE USE OF STUDENTS IN CONVEYANCING. 
 
 BY THE LATE 
 
 JOSHUA WILLIAMS, ESQ., 
 
 OF lixcoln's ixn, one of her majesty's counsel. 
 
 BY HIS SON, 
 
 T. CYPRIAN WILLIAMS, ESQ, 
 
 OK LIXOOI.n's ixn, BAnniSTF.r.-AT-LAW, I,L.I!. 
 
 Author of " Wdliams''s Convci/ancing Statutes,^' and Editor of " Williams on 
 Real Property.'''' 
 
 LONDON: 
 
 HENEY SWEET, 3, CHANCERY LANE, 
 
 ^nto IJu&Iisilrrr ; 
 
 C. £. MAXWELL, MELBOITENE AND SYDNEY. 
 
 1884 
 
 3-'+5-^yi 
 

 
 T 
 
 LONDON : 
 
 peinted by 0. f. eowoeth, 5 — 11, great new steeet, fettee lane, e.g. 
 [late of beeam's buildings.]
 
 
 PREFACE 
 
 TO THE TWELFTH EDITION. 
 
 Tins is the first edition of this work which has 
 appeared since the author's death in the year 
 1881, and the present editor is responsible for all 
 the alterations in and additions to the text of the 
 last edition. As in the case of the last edition of 
 the late Mr. Joshua Williams's Principles of the 
 Law of Real Property, which was also j^rejoared 
 by the present editor after the author's death, it 
 has been thought better not to use brackets in the 
 text of a work intended for students, for the 
 purpose of indicating the new matter. The last 
 edition of this book appeared in February, 1881. 
 Since that time, numerous changes have been 
 made in the law by statutes and rules of court, 
 and there have been many important decisions 
 upon subjects, which are here treated. The prin- 
 cipal alterations made by the editor are those 
 
 722797 
 •nnu
 
 Yl PREFACE TO THE TWELFTH EDITION. 
 
 rendered necessary by the passing of the Con- 
 veyancing and Law of Property Act, 1881, the 
 Customs and Inland Revenue Act, 1881, the Bills 
 of Sale Act of 1882, the Bills of Exchange Act, 
 1882, the Married Women's Property Act, 1882, 
 the Bankruptcy Act, 1883, and the Patents, 
 Designs and Trade Marks Act, 1883, and the 
 making of the Rules of the Suj^reme Court, 1883. 
 The chapter on Bankruptcy (p. 196) has been 
 almost entirely re-written ; and references have 
 been given in the notes to all the former bank- 
 ruptcy statutes, so as to enable the reader to trace 
 the origin and history of every provision of 
 bankruptcy law, which is here stated. The 
 chapters on Composition with Creditors (p. 178), 
 Patents and Copyrights (p. 374), and Husband 
 and Wife (p. 565), have been necessarily re-cast. 
 Besides these changes, the following are the most 
 important alterations : — The editor has re-stated 
 the law relating to the transfer of chattels, in 
 which the intending transferor has no property at 
 the time of agreement to transfer (pp. 41 — 43); 
 and the law with resi3ect to agreements to pay a 
 certain sum of money as liquidated damages for 
 breach of contract (pp. 108 — 111). The note
 
 PREFACE TO THE TWELFTH EDITTOX. VU 
 
 (p. 324, 11. (^a)) on the classification of personal 
 property, as corporeal or incorporeal, is the 
 editor's. The law of copyright in dramatic or 
 musical comjDOsitions has been newly stated 
 (pp. 399, 400). The paragraph on trade marks 
 (pp. 412 — il4) and that on trade names (pp. 419, 
 420) are the editor's ; he has re-written the para- 
 graph on the sale of a business with the goodwill 
 (pp. 420 — 422) and that on covenants for the 
 settlement of a wife's after-acquired j^i'operty 
 (pp. 409, 470) ; and has added the pages (p2:>. 
 476 — 479) on the settlement of money as land, 
 and of chattels, personal or real, to go with land. 
 The law relating to the liability of partners and 
 other persons interested in the j)rofits of a business 
 for debts incurred in the course of the business 
 has been entirely re-stated (pp. 490 — 492, 495, 
 497 — 500) ; and so has the law with respect to 
 the priority of payments to be made by executors 
 (pp. 528 — 530 and note (n)), and ajDj^lication by 
 executors to the Court (pp. 530 — 534). The 
 paragraphs respecting married women's contracts 
 (pp. 587, 588) and the husband's liability upon 
 contracts made by the wife (pp. 608 — 612) are 
 the editor's. And the law relating to warranty of
 
 Vm PKEFACE TO THE TAVELFTH EDITION. 
 
 title or quality iq^on the sale of goods is newly 
 stated (pp. 626 — 628). The editor has also sub- 
 stituted a precedent drawn in accordance with 
 the present law and practice (Appendix B.) for 
 the form of marriage settlement given in former 
 editions. The reader's attention is called to the 
 references given in the Addenda. 
 
 7, Stone Buildings, Lincoln's Inn, 
 Zrd Nov. 1884.
 
 PREFACE 
 
 TO THE rmST EDITION. 
 
 The following pages are intended as supplemen- 
 tary to the author's '• Principles of tlie Law of 
 Real Property." At the time when that work 
 was written, the plan of the present treatise was 
 not matured, and a chapter '' On Personal Pro- 
 perty and its Alienation " was inserted in that 
 work. The contents of that chapter will be found 
 interspersed in parts of the present volume ; and 
 should a second edition of the " Principles of the 
 Law of Real Property" be called for, it is the 
 author's intention to omit that chapter of his 
 former work, and to supply its place by some 
 further remarks on such elementary parts of the 
 law of real property as may appear to have been 
 but slightly touched upon before. The very 
 favourable reception which the author's work on 
 the law of real property has met with from the 
 profession has encouraged him to undertake, in
 
 X PREFACE TO THE FIllST EDITION. 
 
 the present work, a task, he believes, hitherto iin- 
 attempted : for it is singular that, notwithstanding 
 the rapid growth and now enormous value of per- 
 sonal property in this country, no treatise has yet 
 appeared having for its object the introduction 
 of the student in conveyancing to that large and 
 increasing portion of his study and practice which 
 comprises the law relating to such j)roperty. As 
 to real property, he may take his choice amongst 
 three or four publications, all having the same 
 object of facilitating his studies ; but the law of 
 personal property, though sufficiently treated of 
 in all that relates to it as purely mercantile, has 
 not yet had any elementary treatise on its prin- 
 cij^les, so far as they affect the practice of con- 
 veyancing. The present work is an attempt to 
 supply this deficiency, and, in conjunction with 
 the author's '' Principles of the Law of Real Pro- 
 perty," to afford the student a brief and simple 
 introduction to the whole system of modern con- 
 veyancing. The novelty of the attempt has, 
 however, increased the difficulty of the task. The 
 author has endeavoured projDortionably to increase 
 his diligence and care. He can, however, scarcely 
 hope to have escaped all errors. And here he
 
 PREFACE TO THE FIRST EDITION. XI 
 
 would caution the student against too implicit a 
 reliance on the dicta of text books. Elementary 
 books cannot from their nature be comj^letely 
 accurate. As helj^ers to more perfect knowledge, 
 they may be most valuable. But it would be as 
 great a mistake for a student to remain satisfied 
 with his knowledge of a text book, as for an 
 author to compress into an elementary work all 
 that could possibly be said on the subject. 
 
 7, New Sqtjaee, Lincoln's Inn, 
 2ZrdMaij, 1848.
 
 TABLE OF CONTENTS. 
 
 ♦ 
 
 PAGE 
 
 INDEX TO CASES CITED xvii 
 
 COEEIGENDA lix 
 
 ADDENDA Hx 
 
 » 
 
 INTEODUCTOEY CHAPTEE. 
 
 Of the Subjects and Nature of Personal Property . . 1 
 
 Part I. 
 OF CHOSES IN POSSESSION , 10 
 
 CHAP. I. 
 
 Of Chattels wnicn descend to the Heir 10 
 
 CHAP. II. 
 Of Trover, Bailment and Lien 29 
 
 CHAP. III. 
 Of the Alienation of Choses in Possession 41 
 
 CHAP. IV. 
 Of Ships 88
 
 XIV TABLE OF CONTENTS. 
 
 Part II. 
 
 PAGE 
 
 OF CHOSES IN ACTION 97 
 
 CHAP. I. 
 Or Actions ex delicto 97 
 
 CHAP. II. 
 Of Contracts 107 
 
 CHAP. ni. 
 Of Debts 146 
 
 CHAP. IV. 
 
 Of Liquidation BY Areangement AND Composition .... 178 
 
 CHAP. V. 
 Or Bankruptcy 196 
 
 CHAP. VI. 
 Of Insolvency 286 
 
 CHAP. VII. 
 Of Insurance 294 
 
 CHAP. VIII. 
 Of Arbitration 304 
 
 — ♦— 
 
 Part III. 
 OP INCOEPOREAL PERSONAL PROPERTY .... 324 
 
 CHAP. I. 
 
 Of Personal Annuities, Stocks and Shares 324 
 
 CHAP. II. 
 Of Patents and Copyrights 374
 
 TABLE OF CONTEXTS. XV 
 
 Part IV. 
 
 PAGE 
 
 OF PEESONAL ESTATE GENERALLY 423 
 
 CHAP. I. 
 
 Of Settlements of Peesonal Property 423 
 
 CHAP. n. 
 
 Of Joint Ownership and Joint Liability 480 
 
 CHAP. III. 
 Of a Will 505 
 
 CHAP. IV. 
 Of Intestacy 550 
 
 CHAP. V. 
 Of the Mutual Eights of Husband and "Wife 565 
 
 — ♦ — 
 Part V. 
 
 OF TITLE 622 
 
 — ♦ — • 
 
 Appendix (A.) 643 
 
 Appendix (B.) , 646 
 
 — ♦ — 
 
 INDEX 657
 
 INDEX TO CASES CITED. 
 
 A. 
 
 PAQK 
 
 Abbot v. Blofield oli 
 
 Ex parte, Re Gourlay. 83 
 
 Abbott r. Rogers 346 
 
 Abergavenny (E. of),Morganr. 23 
 
 Abingdon (Lord), Clarke f. .. 162 
 
 Abraham, \Yens v 624 
 
 Acaster, Rogers v 580 
 
 Accidental Death Insurance 
 
 Company, Shilling v 295 
 
 Acraman, Carr v 42 
 
 Acton v. Acton 540 
 
 M'Ncillic V 490 
 
 V. White 586 
 
 V. Woodgate 474 
 
 Adam v. Stathani 316 
 
 "Wilkinson v 545, 546 
 
 Adams' Trusts, Re 465 
 
 Policy Trusts, Re ... . 299 
 
 Adams, Malkin v 198 
 
 V. Paynter 460 
 
 Poole V 302 
 
 Adcock, Ross v 105 
 
 Walter v 182 
 
 Wood 1' 310 
 
 Addenbrooke, Foley v 483 
 
 Addison r. Round 31 
 
 Adie, Clark v 379 
 
 Adney, Wennall v 115 
 
 Adsetts r. Hives 136 
 
 Aflalo, Goom v 52 
 
 Agar V. George 470 
 
 V. Lisle 30 
 
 Airedale Drainage Commis- 
 sioners, Rhodes v 309, 317 
 
 Aitcheson v. Cargcj' 316 
 
 Cargey v 315 
 
 Albion Steel and Wire Co., In 
 
 re 303 
 
 Aldous V. Cornwall 136 
 
 Alexander v. Alexander 440 
 
 Dover v 546 
 
 Alford, Suubolf v 35 
 
 Alger V. Parrott 434 
 
 Allatt V. Carr 42 
 
 Allen, Brown v 539 
 
 W.P.P. 
 
 PAOE 
 
 Allen, Testing v 435 
 
 Hobby V 581 
 
 r. Jackson 566 
 
 V. Smith 30 
 
 Allej-n r. Alleyn 54 1 
 
 Allnut, Re, Pott v. Brassey . . 470 
 
 iVllsopp V. Wheatcroft 139 
 
 All wood r. Heywood 13 
 
 Alsager v. Spalding 195 
 
 Alsop, Ex parte 179, 195 
 
 Alston, Ruffles r 613 
 
 Ambergate, &c. Rail. Co. i'. 
 
 Norcliffe 343 
 
 Amcotts, Phelp v 471 
 
 American Leather- Cloth Co. 
 
 Limited, Leather-Cloth Co. 
 
 Limited y 413, 414 
 
 Ames V. Parkinson 329 
 
 Amicable Assui-ance Society v. 
 
 BoUand 295 
 
 Amies v. Skilleru 481 
 
 Amis, Witt r 511 
 
 Amyot, Brown v 429 
 
 Anchor Reversionary Co. 
 
 Limited, jMai'riott v 93 
 
 Anderson r. Coxctcr 318 
 
 Cun-ie r 50 
 
 r. Martindale 483 
 
 Petty V 609 
 
 Price V , 428 
 
 Smith V 352 
 
 Thomson r 310 
 
 Andrade, Lazarus v 42 
 
 Andi-ew v. Andrew , 426 
 
 Andrews' Trusts, Re 262 
 
 A.ndrews, Re, Ex parte Barrow 195 
 
 V. Biggs 149 
 
 Kempe r 483 
 
 V. Partington 448 
 
 V. Salt 013 
 
 Angelo, Re 464 
 
 Angerstcin, Tidswell v 296 
 
 Angler v. Stannard 466 
 
 Annandalc, Brown v 379 
 
 Anuesley, Macleod v 450 
 
 Anon., 1 Atk. 262 249 
 
 b
 
 xvm 
 
 T^'DEX TO CASES CITED. 
 
 PAGE 
 
 Anon., 1 Salk. 71 315 
 
 2Ventr. 218 82 
 
 Ansdell v. Ansdell 620 
 
 Anstruther, Ouselcy v 329 
 
 Antrobus, Cunniughara v. . . 578 
 
 v. Smith 45 
 
 Appleby r. Johnson 122 
 
 Pickering v 332 
 
 Arboiiin, Pritchard v 544 
 
 Arbiithuot, Fyfe v 42 
 
 Arcedeckne, The 169 
 
 Archangel Maritime Insurance 
 Co., North of England Pure 
 
 Oil Cake Co. z; 303 
 
 Archer, Eyre v 182 
 
 V. Gardiner 577 
 
 V. Kelly 469 
 
 V. Marsh 139 
 
 Armistead, De Begnis 1' 136 
 
 Armory v. Delaniirie 31, 32 
 
 Armstrong, Henry v 474 
 
 • TuUett V 585, 586 
 
 Armytage, In re, Ex parte 
 Moore andRobinson'sBank- 
 
 ing Co 69 
 
 Arnold, Rawsthorn v 319 
 
 Artistic Colour Printing Co., 
 He, Ex parte Fourdiinier , . 64 
 
 Arton, Pugh r 16 
 
 Ashburner, Eletcher v 455 
 
 V. M'Guire 540 
 
 Warden v 429 
 
 Ashby V. Ashby 579 
 
 • Lloyd V 502 
 
 Vere v 502 
 
 Ashford, Davies v 456 
 
 • Graves v 404 
 
 Ashley v. Ashley 295 
 
 Ashton, Ee 187 
 
 V. Lord Langdale..543, 544 
 
 Ashworth v. Munn 544 
 
 r. Outram 584, 589 
 
 Askew, Carey v 507 
 
 ■ Newton v 473 
 
 Aspinall v. Pickford 37 
 
 Association of Land Einanciers, 
 
 Re 363 
 
 Astley V. Weldon 110 
 
 Aston, Harvey v 566 
 
 Atcheson, Scarpellini v 575 
 
 Atherton, Lackington v 53 
 
 Atkinson, Ex parte. In re 
 
 Brooksbank 178 
 
 • V. Bell 49 
 
 Clapham v 182, 183 
 
 ■ V. Denby 195 
 
 Atkyns «;. Kiunier ..109, 110, 139 
 Atteuborough, Morley v 627 
 
 PAGE 
 
 Att.-Gen. v. Bouwens 523 
 
 V. Davies 545 
 
 <'. Davison 315 
 
 Drake v 525 
 
 Glubb V 544 
 
 V. Graves 543 
 
 V. Hertford, Marquis 
 
 of 536 
 
 V. Hojie 523 
 
 V. Malkim 434 
 
 March v 543 
 
 V. Meyrick 543 
 
 V. Tyndall 545 
 
 Attree v. Hawe 544 
 
 Attwater, Ex parte. In re 
 
 Turner 65 
 
 V. Attwater 540 
 
 Attwood V. Munnings 626 
 
 Aubert v. Maze 137 
 
 Aubin V. Daly 326 
 
 Auldjo, Wallace v 577 
 
 Austin V. Mead 511 
 
 Avery v. Langford 139 
 
 Scott '(' 305 
 
 Axtell, Young v 496 
 
 Ayton r. Ayton 548 
 
 Ayres, In the goods of 514 
 
 B. 
 
 Badcock, Saddlers' Co. v 301 
 
 Badger, In re 317 
 
 V. Shaw 62, 65 
 
 Badische Anilin und Soda Ea- 
 
 brik r. Levenstein 379 
 
 Baggott V. Meux 587 
 
 Bagiey v. Mollard 546 
 
 Bagueley v. Hawley 627 
 
 BagweU v. Dry 647, 549 
 
 Law V 474 
 
 Bailey v. Birchall 39 
 
 V. Edwards 170 
 
 V. Macaulay 504 
 
 Read v 492 
 
 Baillie v. Treharne 481 
 
 Baily, Snellgrove v 511 
 
 Bain 't\ Lescher 547 
 
 V. Sadler 516 
 
 Bainbridge, In re .'.... 638 
 
 Campbell v 470 
 
 Hedley v 503 
 
 Bainbriofge v. Blair 465 
 
 Baine, Willing v 481 
 
 Bainton t\ Ward 436 
 
 Baker v. Buyldon 577 
 
 V. Bradley 587 
 
 V. Henderson 38
 
 INDEX TO CASKS CITED. 
 
 XIX 
 
 PAGE 
 
 Baker, Heslop v 86 
 
 Leonard v 289 
 
 Lj-ou V 465 
 
 Mosley v 369 
 
 V. Sampson 611 
 
 V. Sebright 22 
 
 Balch V. Symes 38 
 
 Baldey v. Parker 51 
 
 Baldry, Norman v 534 
 
 Baldwin, Lloyd v 457 
 
 Balfour r. Ernest 503 
 
 V. Welland 457 
 
 Balguy, Broadhurst v 466 
 
 Ball, Ex parte. Re Parnell . . 190 
 
 Caldwell r 95 
 
 Gambart v 404 
 
 Bamfield v. Tapper 123 
 
 Bami'ord, In re 209 
 
 Brown r 587 
 
 Banco de Portugal v. Waddell 257 
 Bank of England, Churchill v. 338 
 
 ^- — — Franklin v. .. 339 
 
 Howard v. . . 689, 
 
 590, 591 
 
 V. Lunn 337, 339 
 
 V. Molfatt . . 339 
 
 V. Parsons . . 339 
 
 Richard.son v. 344 
 
 Bank of London and National 
 Provincial Insurance Asso- 
 ciation, Re 350 
 
 Banks, Bell t' 170 
 
 V. Gibson 421 
 
 Banner v. Lowe 430 
 
 Bannister, Eicholtz v 627 
 
 Haley v 446 
 
 Moodie v 631 
 
 Banwen Iron Co. v. Barnett. . 347 
 
 Barber v. Barber 547 
 
 Buckley v 483 
 
 V. Fox 160 
 
 Knight V 332, 365 
 
 V. Meyerstein 46 
 
 Mills V 125 
 
 Barchard, Savill v 37 
 
 Barclay, Ex parte 15 
 
 Ex parte. Re Joyce . . 65 
 
 V. Wainewright 428 
 
 Bardcll, Rex r 310 
 
 Barden, In the goods of 512 
 
 Barham, Moor v 559 
 
 Power V 627 
 
 Baring v. Day 36 
 
 Barker's Trusts, Re 465 
 
 Barker v. Lea 577 
 
 Price V 490 
 
 Stamper v 613 
 
 V. Stead 504 
 
 PAGE 
 
 Barlow, Errat v 446 
 
 Reeves v 42, 43, lix 
 
 Barnard, Earl of Glengall v. . 542 
 
 Lyde v 124, 638 
 
 Barnes v. Robinson 576 
 
 Skey V 445 
 
 Barnett, Brandao v 37 
 
 Banwen Iron Co. v.. . . 347 
 
 Van V 456 
 
 Barr's Trusts, In re 638 
 
 Barrack v. M'Culloch 473 
 
 Barrett, Carey v 194, Ix 
 
 Leggottv 421, 422 
 
 «^. Parry 313 
 
 Barrie, Glover r 316 
 
 Barrow's Trade Marks, Re... 417 
 Barrow, Ex parte, Re Andrews 195 
 
 Lysons V. , 519 
 
 Barrows, Hall r 414, 421 
 
 Bany, Haly v 338 
 
 • V. Nesham 497 
 
 Bartholomew, Dry butter i'. .. 341 
 
 Bartlett, Ex parte 614 
 
 V. Bartlett 637 
 
 V. Gillard 541 
 
 Barton's Trust, Re 428 
 
 Will, In re 572 
 
 Barton i>. Barton 565 
 
 Beckton v 542 
 
 V. Briscoe 586 
 
 Bartrop, Eyre v 170 
 
 Bassett, Way r 492 
 
 Bastard, NichoUs v 33 
 
 Bate, Hunt y 113 
 
 Batcmau, Brown v 42, 43 
 
 V. Davis 454 
 
 V.Ross 613 
 
 Bates, Ex parte 254 
 
 r. Cooke 304 
 
 Duckt- 400 
 
 Eoster v 553 
 
 Turley v 49 
 
 Bateson v. Gosling Ix 
 
 Bath, Ex parte 199 
 
 Baum, Re, Ex parte Cooper. . 209 
 
 Baxter, Matthews v 143 
 
 Baycs, Lee v 624 
 
 Bayldon, Baker v 577 
 
 Bayley, MiUs v 310 
 
 Baylis, Chowne v 59, 624 
 
 Bazeley V. Forder 610 
 
 Beal, Ex parte 406 
 
 Beale v. Bcale 441 
 
 Beau V. Lepine v 546 
 
 Bear v. Bromley 345 
 
 Beard v. Boultou v 466 
 
 V. Egerton 381 
 
 Beaufort,Duke ofjWellesley v. 614 
 
 b2
 
 zx 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Beaixjolais Wine Co., Ee 3G1 
 
 Bcamiiont r. Oliveira 545 
 
 • V. Reeve 115 
 
 Beavan v. Earl of Oxford .... 337 
 
 Beck, Newton v 12 
 
 • Ward V 90 
 
 Beckett, Donaldson v 398 
 
 Beckford, Greening v 639 
 
 Beckham v. Drake 491 
 
 Beckton v. Barton 542 
 
 Beddoes, Brampton v 139 
 
 Beer v. Beer 429 
 
 • r. Foakes 170, Ix 
 
 Beeson, Dawson v 421 
 
 Begbie, Fenwick v 65 
 
 Belding v. Read 42 
 
 Bell, Atkinson v 49 
 
 V. Banks 170 
 
 V. Bidgood 149 
 
 Bowlby V 365 
 
 Hamilton v 85 
 
 Hobson V 040 
 
 Meiix V 638 
 
 Sanderson v. . , 30 
 
 Bellairs i\ Bellairs 565 
 
 Bellamy, Brophy v 449 
 
 Bellasis v. Ermine 566 
 
 Belton V. Hodges 200 
 
 Benedict, Montague t'.. 582, 608, 609 
 
 Benham v. Broadhurst 182 
 
 Bennet v. Davis 584 
 
 Bennett's Trusts, Re 187 
 
 Bennett, Ex parte 538 
 
 ■ V. Burton 290 
 
 V. Lytton 457 
 
 Banning, Sweet v 399 
 
 Bensley v. Bignold 137 
 
 Benson v. Maude 534 
 
 Shaw V 352 
 
 Bentall r. Bm-n 61 
 
 Bentley v. Mackay , 473 
 
 Benyon v. Maddison 433 
 
 Benzon & Co Ixi 
 
 Berchtoldt, Countess of. Earl 
 
 of Lonsdale r 433 
 
 Beresford v. Browning 491 
 
 Bergman v. Macmillan 485 
 
 Bern, Hardy v 162 
 
 Bernard, Coggs r 33 
 
 Berndtson v. Strang 55 
 
 Bernes, Stanley v 509 
 
 Berney, West v 441 
 
 Berriman v. Peacock 22 
 
 Berriugton v. Evans 152, 471 
 
 Berry, Longbottom v , 15 
 
 Re, Exp. Wilkinson . . 209 
 
 Besant, Re 615 
 
 V. Wood 612 
 
 PAGE 
 
 Best, Ex parte 189 
 
 Betts. Re 255 
 
 V. Burch 110 
 
 De Vitre v 397 
 
 V. Kimpton 575 
 
 V. Menzies 379 
 
 ^Neilson v 397 
 
 Bevan, Ex parte 494 
 
 V. Walters 36 
 
 Bewit, Whitfield v 22 
 
 Bickersteth, Littledale v 545 
 
 Biddell v. Leeder 138 
 
 Biddlecomb v. Bond 286 
 
 Bidgood, Bellr 149 
 
 Biffin r. Bigncll 611 
 
 Bignell, Bitliu v 611 
 
 Bignold, Bensley v 137 
 
 Bill V. Cureton 473 
 
 Billingsley, Lady Shore v ,, . , 481 
 
 Bindley v. Malloney 613 
 
 Bingham, Pardo v 631 
 
 Binks, Harland v 474 
 
 Binnington v. Wallis .... 1 13, 137 
 
 Binns, Re 255 
 
 • • Swallow V 445 
 
 Birch, Sharpe v 71 
 
 ■ Watson V 629 
 
 Birchall, Bailey v 39 
 
 Bird V. Boulter 52 
 
 V. Brown 54 
 
 V. Gammon 123 
 
 V. London and Paris Hotel 
 
 Company 52 
 
 Morley v 481, 547 
 
 V. Ralph 104 
 
 Bishop, Ex parte. Re Tonnies 262 
 
 «'. Elliott 19 
 
 Bishopp r. Colebrook 580 
 
 Bissell, Re 185, 187, 202 
 
 Bissett V. Burgess 106 
 
 Bittleston, Quartermaine v. , . 86 
 
 Bittlestone i\ Cook 208 
 
 Black, Willis ;- 471 
 
 Blackburn, Hobson v 545 
 
 Blackburne, Strode v 13 
 
 Blacklow V. Laws 585 
 
 Blades v. Higgs 28 
 
 Blagden, Vallance v Lx 
 
 Blaiberg, Exp., Re Toomer 64, 70 
 
 V. Parke 71 
 
 Blair, Bainbrigge v 465 
 
 V. Bromley 502 
 
 V. Nugent 630 
 
 Blake's Patent, Re 382 
 
 Blake, Ex parte 469 
 
 V. Blake 507 
 
 Dundas v 635 
 
 r. Izard 42,43
 
 INDEX TO CASES CITED. 
 
 XXI 
 
 PAGE 
 
 Blake, Jcssop v 620 
 
 r. White 170 
 
 Blakolock, Stevenson v 37 
 
 Blaksley's Trusts, Ee 33G 
 
 Bland v. Dawes 58') 
 
 Blantcrn, Collins v 13G 
 
 Bligh«\ Breiit 484 
 
 Blight, Loveacres d. Mudge v. 486 
 
 Blisset «'. Crauwcll 486 
 
 Blofield, Abbot v 574 
 
 Bloomer c. Darkcs 183 
 
 Blount V. Burrow 512 
 
 Bloxam v. Favre 509, Ixiii 
 
 V. Sanders 53, 56 
 
 Blunden v. Desart 38 
 
 Blurton, Kirk v 502 
 
 Blythe v. Granville 469 
 
 Boaler r. Mayor 170 
 
 Bodlcy V. Reynolds 56 
 
 Bogg, Mason v 153 
 
 Bogue V. Houlston 404 
 
 Boldero, Godsall v 296 
 
 Lushington v 22 
 
 Bolland, Ex parte. Re Clint. . 262 
 
 Ex parte. Re Roper. 69, 71 
 
 ■ Amicable Assurance 
 
 Society v 295 
 
 v. Disney 295 
 
 Bond, Biddlecomb v 286 
 
 Smiths; 161 
 
 Bonnevvell v. Jenkins 122 
 
 Booker, Van Casteel v 55 
 
 Boosey, Chappell v 400 
 
 Fairlie v 407 
 
 V. Jefferys 398 
 
 Jefferys V 401 
 
 Booth V. Booth 466 
 
 Coop V 350 
 
 I\jrkmau v 496 
 
 Martindale v 61 
 
 Whale V 529 
 
 Boothby, Morlcy v 119 
 
 Bormau, Scarborough v. . .585, 586 
 
 Berwick, Thrcfall v 35 
 
 Boss v. Godsall 455 
 
 Boswcll, Dry v 499 
 
 Botfield, Bradbm-ne v 483 
 
 Bothamby v. Sherson 539 
 
 Boucher, Prescott r 576 
 
 Boucicault v. Chatterton .... 407 
 
 Boughton, Knight v 429 
 
 Lord St. John r . . . . 630 
 
 Boulnois, Ebbs r 187, 270 
 
 Boulter, Bird v 52 
 
 Boulton V. Beard 466 
 
 V. Bull 381 
 
 Hornblower v 379 
 
 V. Prentice 610 
 
 Bourne, Dowbiggin v 168 
 
 PAGE 
 
 Bourne v. Fosbrooke 32, 44 
 
 Ilawken v 502 
 
 Boutts V. Ellis 511 
 
 Boiiweus, Attorney-General r. 523 
 
 Bowdcn, Jones v 628 
 
 Bower, Nicholson v 50 
 
 V. Marris 177 
 
 Mexborough v 304 
 
 Bowcren, Grymes v 16 
 
 Bowes, Re 255 
 
 Countess of Strath- 
 more V 583 
 
 V. Hope, &c. Society. . 350 
 
 Bowker, Wilmshiu-st v 55, 66 
 
 Bowlby V. Bell 365 
 
 Bowles' case 22 
 
 Bowley, Reynolds v 495 
 
 Bowman, Mullen v 549 
 
 Bown, Re, O'Halloranv.King 587 
 
 Bowser v. Cox 170 
 
 Bowsher, Davis v 37 
 
 Bowyer v. Woodman 632 
 
 Boyd's Settled Estates, Ee . . 450 
 
 Boyd V. Boyd 558 
 
 V. Shorrock 65 
 
 Boydell v. M'Michael 19 
 
 Boyle, Ex parte 250 
 
 r. Bishop of Peterborough 440 
 
 London and Provincial 
 
 Bank v 592 
 
 Bi'acebridge v. Cook 672 
 
 Bradbume v. Botfield 483 
 
 Bradford Navigation Co., Re 350 
 
 Old Bank, Walker r. lix 
 
 Bradlaugh r. Newdegate .... 140 
 
 Bradley, Baker v 587 
 
 I'. Copley 31, 62 
 
 Hampshii'e i' 466 
 
 Perkins v 59 
 
 Wren v 612 
 
 Bradsey v. Clyston 313 
 
 Bradshaw, Custance v 484 
 
 Yeoman t' 164 
 
 Brady v. Todd Ixiii 
 
 Bradyl, Burridge v 541 
 
 Braithwaite v. Britain 492 
 
 V. Skinner 6 
 
 Bramah v. Roberts 503 
 
 Brampton v. Bcddoes 139 
 
 Bramwell v. Eglinton 293 
 
 Brandao r. Barnett 37 
 
 Brand, Sharman v 52 
 
 Brandcr v. Brander 428 
 
 Brandon, Ex parte, Re Trench 201 
 
 r. Robinson 586 
 
 Brandon'sPatent,Re, Exp. Doty Ixi 
 
 Brassey, Pott v 470 
 
 Brathwait, Lampleigh v 113 
 
 Brearey, Roundell v 471
 
 xxu 
 
 INDKX TO CASES CITED. 
 
 TAQE 
 
 Brcarloy, Ramsden v 617 
 
 Bremi'idfje, Evans v 490 
 
 Brent, Blicjh «- 484 
 
 Brereton, Drosier v 450 
 
 Breton's Estate, Re, Breton v. 
 
 Woollven 45,573 
 
 Brett V. Greenwell 577 
 
 Briant, Philpot t' 170 
 
 Brice v. Stokes 406 
 
 Bridge v. Bridge 473 
 
 • IK Cage 138 
 
 r. Yates 481 
 
 Bridges, Re 254 
 
 • Etty V 639 
 
 V. Ha wkes worth .... 32 
 
 Brierley v. Kendall 62 
 
 Brigsjs V. Chamberlain 581 
 
 Brigiat's Trusts 637 
 
 Bright, Jones v G28 
 
 Brighton Club Co., Dun- 
 combe 'V 167 
 
 Brinsmead v. Harrison 56 
 
 Briscoe, Barton v 58G 
 
 Hanchett v 580 
 
 Brise, Matthews v 450 
 
 Bristead v. Wilkins 338 
 
 Bristol and Exeter Rail. Co., 
 
 Coombs V 51 
 
 Bristow V. Wards 440 
 
 Britain, Braithwaite v 492 
 
 V. Rossiter 120 
 
 British Empire Shipping Co. 
 
 V. Somes 36 
 
 Broadbent, Mason v 632 
 
 Broadhurst v. Balguy 466 
 
 Benham v 182 
 
 Brocklebank, Stocker v 499 
 
 Brockett, Charaberlayne v. . . 545 
 
 Bromhead, Wilkins v 49 
 
 Bromley, Bear v 345 
 
 Blair v 502 
 
 V. Brunton 511 
 
 Brook, Ex parte 16 
 
 Brooke v. Enderby 496 
 
 V. Haynes 514 
 
 V. Mitchell .. 31, 312, 313 
 
 Brookes, Ex parte. Re Fowler. , 86 
 
 Coombes v 465 
 
 Brooks V. Keith 470 
 
 Brooksbank, Re 178 
 
 Broom V. Broom 484 
 
 Brophy v. Bellamy 449 
 
 Broughton v. Broughton .... 465 
 
 Brown, Ex parte. Re Reed . . 65 
 
 V. Allen 539 
 
 ■ V. Amyott 429 
 
 • V. Annandale 379 
 
 • V. Bamford 587 
 
 V. Bateman 42, 43 
 
 PAGE 
 
 Brown, Bird v 54 
 
 Collins' Co. r 414 
 
 V. Edgington 628 
 
 Jennings v 115 
 
 V. Lee 169 
 
 Metropolitan Counties, 
 
 &c. Society v 15 
 
 r. Pocock 586 
 
 Richardson v 627 
 
 V. Tanner 96 
 
 i\ Vawser 323 
 
 Wakefield v 483 
 
 V. Weatherby 492 
 
 Browne v. Carr Ix 
 
 V. Cavendish 474 
 
 V. Hammond 548 
 
 Pflegerv 176,195 
 
 V. Savage 638 
 
 Browning, Beresford v 491 
 
 Brownlow, Nixon v 343 
 
 Brownrigg, Bryson i' 512 
 
 Brownsmith, Wilson v 540 
 
 Brumridge v. Brumridge .... 467 
 
 Bruning, Smith v 567 
 
 Brunt, Dodkin v 463 
 
 Brunton, Bromley v 511 
 
 Bryan v. Clay 106 
 
 Hemsworth v 312 
 
 Bryans «'. Nix 46 
 
 Bryant, HoUis v 287 
 
 Laythoarp v 122 
 
 Bryce, Cannan t' 137, 141 
 
 Bryson v. Brownrigg 512 
 
 Buchanan, Fleming v 436 
 
 Buck, Sutton v 34 
 
 Buckhur.st's case II 
 
 BuckingViam, Earl of v. Drury 568 
 
 Buckland v. Johnson 56 
 
 Buckley's Trust 467 
 
 Buckley, Ex parte 602 
 
 V. Barber 483 
 
 Earl of Stafford r. 326, 327 
 
 V Gross 32 
 
 Bull, Boulton V 381 
 
 V. Faulkner 38 
 
 BuUen v. Sharp 497, 500 
 
 Bulley V. BuUey 39 
 
 Biilteel V. Plummer 439 
 
 Bunn V. Markham 512 
 
 Burch, Betts !' 110 
 
 Burchell, Ea.stland v 411 
 
 Bardick r. Sewell . .46, 96, lix, Ix 
 
 Burdiss, Carr r 47 
 
 Burford, Dix v 466 
 
 Burge, Heyhoe v 499 
 
 Burgess, Bissett v 106 
 
 V. Burgess 420 
 
 ■ — Ransome r 448 
 
 Tappenden v 179
 
 INDEX TO CASES CITED. 
 
 xxm 
 
 PAGE 
 
 Burgess, Williams r lo2 
 
 Burghardt, Ro 209 
 
 Burghart, Lauo v 120 
 
 Burke r. Jones G34 
 
 Burley, Gilly r 428 
 
 Burlinson r. Hall lix 
 
 Burn, Bontall v 51 
 
 V. Burn 503 
 
 Burnand r. Rodocanachi .... 302 
 
 Buruell, Foley r 478 
 
 Gale V 42, G2 
 
 Burnet v. Mann 558 
 
 Burrell, Ex parte 188 
 
 Ivrehl V 98 
 
 Burridge v. Bradyl 541 
 
 Burrough v. Moss 574 
 
 Burrow, Blount v 512 
 
 Burrowes, Stuart v 518 
 
 Burrows, Keith v 96 
 
 Bui-ton, Bennett v 290 
 
 Davis r 77 
 
 ■ Goode V 12 
 
 r. Hughes 34 
 
 ■ i\ Sturgeon 620 
 
 Bury, Petrie v 480 
 
 Bush, Hiivtr 51 
 
 • r. Shipraan 195 
 
 Bushell V. AVheeler 50 
 
 Busk r. Davis 49 
 
 V. Fearon 303 
 
 Pickering r 626 
 
 Butcher v. Butcher 470 
 
 Freestone v 608 
 
 V. Jackson 443 
 
 Parker v 370 
 
 r. Stead 263 
 
 Butler, Faulkner r 4 ! 1 
 
 Butlin's Trusts, Re 590 
 
 Butlin, Hawtry ;• 65 
 
 Butterfield, In re 4!)6 
 
 Butterworth, Re 262, 472 
 
 Byers, Wilkinson r 176 
 
 Byng, Hoare v 432 
 
 . V. Lord Strafford 432 
 
 Byrne, Ward v 139 
 
 Byron v. Byron 118 
 
 By water, Wrightson v 316 
 
 Cadogan v. Earl of Essex .... 455 
 
 Cage, Bridge v 138 
 
 Cahiil r. Cahill 613 
 
 Caldow V. Pixcll 104 
 
 Caldwell v. Ball 95 
 
 Caledonian Rail. Co. v. 
 Greenock and Wemyss Bay 
 Rail. Co 304, 305 
 
 PAQE 
 
 Calvert v. London Dock Co. . . 170 
 
 Canim, Goulder r 587 
 
 Campboll's Policies, Ro 469 
 
 Campbell v. Bainbridge 470 
 
 ■ V. Campbell 466 
 
 V. Holme 442 
 
 Macarthur v 319 
 
 Giinpion v. Cotton 114 
 
 Candlish, Wilkinson v 199 
 
 Cann, Re lix 
 
 Cannan v. Biyce . » 137,111 
 
 Cannings v. Flower 446 
 
 Canuington v. Nuttall 390 
 
 Cannon, Smith v 209 
 
 Cajjcyron, Chasteauneuf v. . , 91 
 
 Capper, Ex parte 110 
 
 Cai)ron v. Cajiron 432 
 
 Careless, Rachfield v 549 
 
 Carew, Clive v 586 
 
 Carey r. Askew 507 
 
 ■ •?'. Barrett 194, Ix 
 
 Collins r 465 
 
 Cargey v. Aitcheson 315 
 
 ■ Aitcheson i' 316 
 
 Carlisle, Earl of, Lechmere v. 456 
 
 Carlon, Clack v 465 
 
 Carnatic Rail. Co., Reg. v. . . 590 
 
 Carpenter v. Smith 379 
 
 Tebbs V 328 
 
 Carr r. Acraman 42 
 
 ■ ■ Allatt V 42 
 
 Browne v Ix 
 
 V. Burdiss 47 
 
 Carrick, Freshney v 62 
 
 Carriugton, Ex parte 199 
 
 Evans v 620 
 
 Carruthers, Parkin v 496 
 
 Carstairs, Ex parte 170 
 
 - — ■ Maltby v 1 70 
 
 Carter r. Carter 469 
 
 V. Crick 627 
 
 V. Taggart 429, 578 
 
 V. Wiialley 496 
 
 Cartwright r. Cartwright .... 612 
 
 V. Vawdry 546 
 
 Carver, Waugh v 495, 502 
 
 Case, Hartley v 132 
 
 South Carolina Bank v. . . 502 
 
 Cassell, In re 321 
 
 V. Stiff 407 
 
 Castellain v. Preston 301, 302 
 
 Castle, Fear v 594 
 
 V. Swordcr 51 
 
 Castriqvio, Ilderton i' 182 
 
 Catchpole, Cook v 305 
 
 Catlnw r. Catlow 39 
 
 Caulfield v. Maguire 168 
 
 Cautley, Foster v 439 
 
 Cave, Chatterton v 400
 
 XXIV 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Cave, Farquharson v. .^ 512 
 
 V. Hastings 122 
 
 V. Roberts 561 
 
 Cavendisli, Browne v 474 
 
 Chadwick t'. Doleman 441 
 
 Chaine, Hamilton v 69 
 
 Challinor, Ex parte, Re Rogers 69 
 
 Chalouer, Horsley v 535 
 
 Chamberlain, Briggs v 581 
 
 . V. Williamson. , 102 
 
 Chamberlayne v. Brockett 545 
 
 Chambers v. Goldwin 446 
 
 ■ Willet V 502 
 
 Champernown v. Scott ...... 38 
 
 Champney v. Davy 544 
 
 Champneys, Stiirgis v 576 
 
 Chandler v. Howell 544 
 
 Channon v. Patch 22 
 
 Chaplin, Ex parte 450 
 
 Ex parte, Re Sinclair . . Ix 
 
 V. Rogers 45 
 
 Chapman, Re, Ex parte John- 
 son 69, lix, Ix 
 
 ■ Fitzgerald v 620 
 
 Howse V 54 3 
 
 May V 133 
 
 V. Milvain 345 
 
 V. SpUler 627 
 
 Chappell V. Boosey 400 
 
 Chappie, Re, Ex parte Izard 64, 75 
 
 Chard v. Jervis 156 
 
 Charing Cross Advance and 
 Deposit Bank, Ex parte. Re 
 
 Parker 69 
 
 Charlesworth, Malcolm v 578 
 
 Charlton, Ex parte 191 
 
 Chase, Goodman v 120 
 
 Chasemore v. Turner 117 
 
 Chasteauneuf v. Capeyron . . 91 
 
 Chatterton, Boucicanlt v 407 
 
 • V. Cave 400 
 
 Cheavin v. Walker 413 
 
 Cheese v. Lovejoy 609 
 
 Cherry v. Heming 121 
 
 Cheslyn r. Dalby 123 
 
 Chesterfield and Midland Silk- 
 stone Colliery Co. Limited 
 
 V. Hawkins 182 
 
 Cheyne, Eccles v 548 
 
 Chichester, Coventry v 542 
 
 • ■ Smith V 38 
 
 Chidell V. Galsworthy 42 
 
 Child V. Morley 331 
 
 Children, Paul v 546 
 
 Chinery, Ex parte Ix 
 
 Chiswell, Gray v 492 
 
 Chitty, Hulme r 613 
 
 Cholmeley r. Paxton 22 
 
 Chowne v. Baylis 59, 624 
 
 PAGE 
 
 Christ's Hospital, Brecknock, 
 Governor of, and W. E. 
 Martin, In the matter of an 
 
 arbitration between 309 
 
 Churchill v. Bank of England 338 
 
 V. Small 13 
 
 Churchward v. Studdy 28 
 
 Churton v. Douglas 421 
 
 City of London Steam Packet 
 
 Co., Fenton v 95 
 
 City Bank, Simimers t' 591 
 
 Clack V. Carlon 465 
 
 Clancy v. Piggott 119 
 
 Clapham v. Atkinson . . . .182, 183 
 
 Clare, Ridgway v 492 
 
 Claridge, HoUis v 38 
 
 Seal V 71 
 
 Clark, Ex parte Ix 
 
 V. Adie 379 
 
 Clarke's Trusts, Re 587 
 
 Clarke, Inre, Ex parte Buckley 502 
 
 V. Abingdon, Lord . . 162 
 
 Groves v 577 
 
 V. Ormonde, Earl of . . 531 
 
 V. Parker 566 
 
 V. Seton 161 
 
 V. Shee 623 
 
 Smith V 130 
 
 V. Williams 182 
 
 Clarkson, Wild t' 161 
 
 Clay, Bryan v 106 
 
 Clayton's Case 177 
 
 Clayton v. Kynaston . . . .487, 490 
 
 Cleather v. Twisden 502 
 
 Cleave v. Jones 123 
 
 Clegg V. Clegg 471 
 
 V. Rowland 635 
 
 Clements v. Matthews 41, 43 
 
 ClifFord v. Layton 610 
 
 Clift V. Schwabe 295 
 
 Climie i\ Wood 16 
 
 Cliue's Estate, Re 430 
 
 Clint, In re 262 
 
 Clinton's Trust, In re 469 
 
 Clive V. Carew 586 
 
 Close V. Close 170 
 
 — — V. Waterhouse 37 
 
 Clough f. French 158 
 
 r. Lambert , 613 
 
 Clulow, In re 429 
 
 Clyston, Bradsey v 313 
 
 Cobb, Rishton r 565 
 
 Cock, Lashbrook v 486 
 
 Cockljurn, Ex parte 182 
 
 Daubeney v 442 
 
 V. Peel 462 
 
 Cockerell v. Essex, Earl of . . 432 
 
 Cocksedge r. Cocksedge .... 612 
 
 Coggs V. Bernard 33
 
 INDEX TO CASES CITED. 
 
 XXV 
 
 PAGE 
 
 Cohen, Re, Ex parte Schmitz be 
 
 Coker, Hitchcock v 139 
 
 Colbeck, lu re 497 
 
 Cole, Ke;u\sley r 490 
 
 Kerri.sou r 137 
 
 Mouflct r 139 
 
 V. North Western Bauk . . 626 
 
 Colebrook, Bishopp r 580 
 
 Colegrave v. Dias Santos .... 1-5 
 
 Coles, Hughes v Ixiii 
 
 Collector of Customs, Kcx v. . . 483 
 
 Collett, Meryon r 434 
 
 ■ -v. Morrison 296 
 
 Collingridge v. Royal Ex- 
 change Corporation 301 
 
 Collins V. Blantern 136 
 
 V. Carey 465 
 
 V. Collins 320 
 
 Drew I' 183 
 
 Hobby r 581 
 
 r. Lamport 93 
 
 Lowndes r 167 
 
 V. Martin 1,33 
 
 Collins' Co. V. Brown 414 
 
 Collinson, Holderness v 37 
 
 CoUyer v. Isaacs 42, 43 
 
 Colvin, Wilton v 469 
 
 Combe, Ward v 428 
 
 Compton, Peter v 120 
 
 Right d. Compton v. 566 
 
 Comptoir d'Escompte de Paris, 
 
 Roger V 54, 55 
 
 Conduitt V. Soane 426 
 
 Conelly v. Steer 72 
 
 Congreve, Douglas r 470 
 
 • V. Evetts 42 
 
 Conibeer, In re 262 
 
 Conquest, Marsh v 399 
 
 Constable r. Constable 432 
 
 Cook, Bittlestune v 208 
 
 Bracebridge v 572 
 
 V. Catchpole 305 
 
 V. Fowler 110 
 
 The Sophia 303 
 
 r. Wright 114 
 
 Cooke, Bates v 304 
 
 V. Cooke 304 
 
 . V. Fuller 617 
 
 Stones V 616 
 
 V. Whorwood 316 
 
 Cookson V. Cookson 484 
 
 V. Reay 456 
 
 Coombe, Edwards t' 192 
 
 Coombes v. Brookes 465 
 
 Coombs r. Bristol and Exeter 
 
 Railway Co 51 
 
 IK Coombs 552 
 
 Coop V. Booth 350 
 
 Coope V. Cresswell 631 
 
 PAGE 
 
 Coope v. Twymau 169 
 
 Cooper, Ex parte. Re Baum. . 209 
 
 Ex parte. Re McLaren 55 
 
 Re 263 
 
 Davidson (• 136 
 
 Edwards v 472 
 
 Ginesi v 421 
 
 Haynes v 38 
 
 V. Johnson 312 
 
 — Loveridge v 637, 639 
 
 V. Shepherd 56 
 
 r. Willomatt o5 
 
 V. Woolfit 20 
 
 Coote r. Judd 401 
 
 Cope, Holder v 611 
 
 V. Rowlands 137 
 
 Copcland, Morton v 399 
 
 Cojjis V. Middleton 168 
 
 Coplej', Bradley v 31, 62 
 
 Coppin, Dillon v 45, 1 14 
 
 Corbet, Ewer v 528 
 
 Cordell, Elliott v 578 
 
 Corles, Dipple v 112 
 
 Corumell v. Keith 470 
 
 Coruforth v. Smithard 117 
 
 Coruthwaite v. Frith 474 
 
 Coruwallis, Lassells r 436 
 
 Cornwell, Aldous v 136 
 
 Corporation of Huddersfield, 
 
 Jacomb v 308 
 
 Corporation of Liverpool, Scott 
 
 V 305 
 
 Corrance v. Corrance 620 
 
 Costa Rica, Republic of r. 
 
 Strousberg 173 
 
 Cotton, Ex parte 77 
 
 In re 447, 448 
 
 Campion v 114 
 
 Court of Wards, Mollwo, 
 
 Marcli and Co. v 497, 498 
 
 Courtauld v. Legh 317 
 
 Coustou, In re 86 
 
 Coventry v. Chichester 542 
 
 V. Coventry 460, 463, 
 
 470 
 
 Lord, Lygon v 449 
 
 Coverdale v. Eastwood 114 
 
 Coward and Adam's Purchase, 
 
 Re 618 
 
 Cowburn, Re, Ex parte Firth, 69 
 
 Cowell V. Simpson 37, 39 
 
 Cowley, Earl, v. WeUesley . . 22 
 
 Cox, Bowser v 170 
 
 V. Hick-man 497, 499, 502 
 
 r. Land and Water 409 
 
 Ex parte, Re Reed 86 
 
 In re 544 
 
 Coxeter, Anderson v 318 
 
 Coxhead v. Mullis 117
 
 SXVl 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Coxwoll, Wilson v 516 
 
 Crackles, Durham v o7G 
 
 Craddock, Lake r 183 
 
 Cradock v. Piper 465 
 
 Craig, Downes v 104 
 
 ■ Nurse v 611 
 
 Crallan v. Oulton 634 
 
 Cramer ^i. Moore 470 
 
 Cranefeldt, Freake v 634, 635 
 
 Crauk.shaw, Rowland i< 495 
 
 Cranley v. Hillary 195 
 
 Cranmer's case 541 
 
 Cranwell, Blissett v 486 
 
 Craven, Ex parte 263 
 
 Crawcour v. Salter , . . 86 
 
 Craj'thoi'ne r. Swinburne .... 169 
 
 Credit Co. v. Pott 69 
 
 Credit Foucier, Crouch v 128 
 
 Creed v. Perry 580 
 
 Cresswell, Coope v 631 
 
 Cresswick v. Woodhead 515 
 
 Crick, Carter r 627 
 
 Cripps V. HartnoU 120 
 
 Crispin, Ex parte 199 
 
 Cristall, Ferguson v 31, 34 
 
 Crofton V. Poole 270 
 
 Crofts, Parton v 52 
 
 Elves V 139 
 
 Crompe, Martin v 483 
 
 Crook r. Hill 546, 547 
 
 Hill V 546 
 
 Cross, Re 334 
 
 Re, Ex parte Payne . . 209 
 
 Crosskey, European, &c. Ship- 
 ping Co. V 321 
 
 Crossley v. Dobson 488 
 
 V. Maycock 122 
 
 Crouch V. Credit Foncior .... 128 
 
 Croughton's Trusts, Re 587 
 
 Crow V. Robinson 337 
 
 Croxton v. May 577 
 
 Croydon Canal Co., Hodges t'. 632 
 
 Cruger v. Dunlop 183 
 
 Cruise t\ Hunter 614 
 
 Cruttwell V. Lye 421 
 
 Cubitt, Stansfeld v 62, 65 
 
 Cubley, Pigot'i' 33, 35 
 
 Culling worth v. Lloyd 195 
 
 Cullwick V. Swindell 15 
 
 Cumber v. Wane 176 
 
 Cundy v. Lindsay 623 
 
 Cunningham, Ex parte. Re 
 
 Mitchell Ix 
 
 V. Antrobus . . 578 
 
 Dillon?' 156 
 
 Cunynghame v. Thiu'low 442 
 
 Cureton, Bill v 473 
 
 Curling 7-. Flight 610 
 
 Currey, Wilmer v 488 
 
 PAGE 
 
 Cun-ie v. Anderson 50 
 
 Wothorspoon r 420 
 
 Curtis, Worthington v 296 
 
 Cusack V. Robinson 00 
 
 Custance V. Bradshaw 484 
 
 Cutbush V. Cutbush 496 
 
 Cutfield, Wardroper v 429 
 
 Cuthbert v. Dobbin 151 
 
 Cutler, In re 576 
 
 D. 
 
 Dabbs, Ford v 287 . 
 
 Daglish, Ex parte. Re Wild . . 65 
 
 Daiby, Cheslyn r 123 
 
 • V. India and London 
 
 Life Assurance Co 296 
 
 Dale, Re 186 
 
 Drayton v 270 
 
 Dalton, In re 567 
 
 Daly, Aubin r 326 
 
 Dalzell, Lynch r 301 
 
 Danby, Trimmer v 429 
 
 Daniel v. Dudley 434 
 
 Hunter v 140 
 
 Earwan v 475 
 
 Dann, Ex parte, Re Parker . . 209 
 
 Darby v. Darby 484 
 
 Darell, Hales v 541 
 
 Darkes, Bloomer v 183 
 
 DarlingtonDistrict Joint Stock 
 
 Banking Co.. Ex parte .... 502 
 
 Darlow, Hiekson v 70, 75 
 
 Daruford, Ozard v 611 
 
 Darrell v. Tibbits 301 
 
 Dartmouth, Lord, Howe v. . . 328 
 
 Darton, Moore v 511 
 
 Daubeuey r. Cockburn 442 
 
 Davenport, Elliott v 433, 547 
 
 — ■ Holdsworth V . . .. 544 
 
 Ex parte 46 
 
 Davids, -Jones r 168 
 
 Davidson i\ Cooper 136 
 
 Ex parte 401 
 
 Davies v. Ashford 456 
 
 Attorney- General v. . , 545 
 
 v. Humphreys 169 
 
 V. Penton 110 
 
 V. Stainbank 170 
 
 V. Vernon 12, 13, 37 
 
 Davis, Ex parte 254 
 
 Bateman v 454 
 
 Bennet v 584 
 
 V. Bowsher 37 
 
 V. Burton 77 
 
 Busk V 49 
 
 V. Earl of Dysart 13 
 
 Entwistle v 543
 
 INDEX TO CASKS CITED. 
 
 XXVll 
 
 PAGE 
 
 Davis, Godfrey v olG 
 
 ■ V. Goodman 70 
 
 r. Mason 139 
 
 Shepley v 49 
 
 V. Usher lix 
 
 Davison, Attorney- General v. 315 
 
 Davy, Champueys v i)\i 
 
 Daw V . Eley 382 
 
 Dawes, Bland v 58;') 
 
 V. Peck 51, 55 
 
 V. Tredwell 170 
 
 Dawson, Ex parte 263 
 
 V. Beeson 421 
 
 V. Fitzgerald 304 
 
 V. Kearton 115 
 
 Labouchere v 421 
 
 Pearson v 46, 51 
 
 Day, Baring v 3G 
 
 Hulkes V 337 
 
 Wallis V 139 
 
 Deakle, Paj^ne v 313 
 
 Dean v. Hogg 95 
 
 Deare v. Soutten CIO 
 
 Dearie v. Hall 637, 639 
 
 De Begnis v. Armistead .... 136 
 Debenham v. Mellon 582, 608, 609 
 De Blacquiere, Hunt i'. ..610, 617 
 
 Vandergucht v. 616 
 
 De Castro, Willis v 490 
 
 Dedire, Freemoiilt v 471 
 
 Deeks v. Strutt 6 
 
 Deering v. Earl of Winchelsea 169 
 
 De Greucliy v. Wills 593 
 
 De la Croiiee, Ilambidge v. , , 503 
 De la Garde v. Lempriere .... 577 
 
 Delamirie, Armory v 31, 32 
 
 Delbridgo, Richards v 44, 45 
 
 Delhassc, Ex parte, Re Mege- 
 
 vand 497,500 
 
 De Mattos, De Pothonier v... 171 
 De Mautort i\ Saunders .... 491 
 
 Denby, Atkinson v 195 
 
 Denny, Flory v 48 
 
 D'Epineuil, Count, Re 42 
 
 De Pass, Lyons v 623 
 
 De Pothonier i'. De Mattos .. 171 
 
 De Proven, Duplex v 153 
 
 Desanges, Thomas v 258 
 
 Desart, Bkmden v 38 
 
 Desbrisay, Fearon v 443 
 
 Devaux v. Steinkeller 124 
 
 Devaynes v. Noble . .177, 492, 496 
 Devereux v. Kilkenny, &c. 
 
 Railway Co 343 
 
 De Vitre v. Betts 397 
 
 Dewduey, Ex parte 634 
 
 Dewhirst v. Jones 182 
 
 Dewhirst v. Kershaw 182 
 
 PAQE 
 
 D'Eyncourt v. Gregory 19 
 
 Dias Santos, Colegravo v 15 
 
 Dickie, Gibson v 113 
 
 Dickin, Ex parte, Ro Foster. . 494 
 
 Dickinson v. Dillvvyn 469 
 
 V. Kitchin 93 
 
 Orr V 94 
 
 V. Teesdale 635 
 
 r. Valpy 503 
 
 Dicks, Weldou i- 401 
 
 V. Yates 414 
 
 Diggs, Andrews v 149 
 
 Dillon v. Coppin 45, 114 
 
 V. Cunningham 156 
 
 Dillwyn, Dickinson tJ 469 
 
 Dimsdale v. Robertson 313 
 
 Dijjplc V. Corles ... 112 
 
 Disney, Bolland v 295 
 
 Ditcham v. Worrall 117 
 
 Dix V. Burford 466 
 
 Dixie, Wood v 83 
 
 Dixon, Ex parte 180, 194, Ix 
 
 Fishery 19 
 
 v. London Small Arms 
 
 Co 383 
 
 Steele 169 
 
 V. Yates 40, 53, 54 
 
 Dobbin, Cuthbert v 151 
 
 Dobinson v. Hawks 370 
 
 Dobree, Ruddell v 512 
 
 Dobson, Crossley I' 488 
 
 Dodd, Lewen v 486 
 
 Dodkin r. Brunt 463 
 
 Doe d. Esdaile v. Mitchell .... 258 
 
 iL Morrison r. Glover , . 370 
 
 (/. Stace (•. Wheeler .... 515 
 
 Dolcman, Chadwiek v 441 
 
 DoUond, Kensington v 685 
 
 Dominy, Thompson v 96 
 
 Donaldson v. Beckett 398 
 
 ■ V. Donaldson .... 473 
 
 Doncaster v. Doncaster 432 
 
 Douellan v. Reid 121 
 
 Doran v. Wiltsliire 457 
 
 Dorin v. Doriu 546 
 
 DoiTein, Lucas v 46 
 
 Dorrill, Routledge V 441, 443 
 
 Doty, Ex parte Ixi 
 
 Doughty, Northcote v 117 
 
 Douglas, Churton v 421 
 
 V. Congreve 470 
 
 V. Douglas 509 
 
 Mackayi' 472 
 
 r. Russell 90 
 
 Dover v. Alexander 546 
 
 Dowbiggeu v. Bourne 168 
 
 Dowdiug, Fussell v 620 
 
 Dowling, Wade r 315
 
 XXVIU 
 
 I]SDEX TO CASES CITED. 
 
 PAGE 
 
 Downes v. Craig 104 
 
 V. Jennings 583 
 
 Downman, Motley v 413 
 
 Downs, England v 583 
 
 Dowson, Pickering v 627 
 
 Drake, Ex parte, Re Ware . . 5G 
 
 ■ V. Attorney- General. . 525 
 
 Beckham v 491 
 
 Drayton r. Dale 270 
 
 Drew r. Collins 183 
 
 V. Nunn 610 
 
 Drewry v. Thacker 531 
 
 Driver v. Mawdesley 474 
 
 Pooley V 495, 497, 498, 
 
 499, 500, 502 
 
 V. Scott 466 
 
 Droseir v. Brereton 450 
 
 Drummond, Evans v 496 
 
 M'Leod I' 529 
 
 V. Parish 507 
 
 Driuy, Earl of Buckingham V. 568 
 
 V. Scott 470 
 
 Buildings Estate Co., 
 
 Nicholson v 618 
 
 Druyff, Hume v 156 
 
 Dry, Bagwell v 547, 549 
 
 V. Boswell 499 
 
 Drybutter r. Bartholomew . . 341 
 
 Dubost, Ex parte 45 
 
 Morell V 149 
 
 Duck V. Bates 400 
 
 Dudley, Daniel v 434 
 
 1'. Warde 19 
 
 Dufaur, Ex narte 199 
 
 Duff V. Eastlndia Co 502 
 
 Gordon r 539 
 
 Duffield V. Elwes 511 
 
 Duffy's Trust, In re 578 
 
 Duignan, Ex parte. In re Bis- 
 
 sell 185, 187, 202 
 
 Duke, Samuel i' 623 
 
 Sheppard v 629 
 
 Duncan r. Topham 122 
 
 ■ Eox & Co. r. North 
 
 and South Wales Bank .... 131 
 Duncombe V.Brighton Club Co. 167 
 
 Dundas v. Blake 635 
 
 V. Dutens 337 
 
 Dundonald, Earl of, w. Master- 
 man 502 
 
 Dungannon, Loi'd, Kcr t' 425 
 
 Dunkley v. Dunkley 677 
 
 Dunlop, Cniger v 183 
 
 • V. Higgins 122 
 
 Dunnicliff v. Mallet 485 
 
 Dunton v. Strong 314 
 
 Duplex V. De Proven 153 
 
 Durant, James v 469 
 
 PAGE 
 
 Durant v. Prcstwood 559 
 
 Durham v. Crackles 576 
 
 Dui-nford v. Lane 567 
 
 Dutens, Dundas t' 337 
 
 Dutton V. Morrison 179 
 
 i\ Thompson 474 
 
 Dyke, Hart, Ex parte, re Mor- 
 
 rish 255 
 
 V. Walford 551 
 
 Dykes, Tolson v 292 
 
 Dysart, Earl of, Davis v 13 
 
 E. 
 
 Eads r. Williams 315 
 
 Eardley v. Owen 471 
 
 Earle, Heinekey r 55 
 
 r. Hopwood 143 
 
 Mare t; 195 
 
 East India Co., Duff v 502 
 
 Mui-ray v. . . 633 
 
 • Venables v. . . 515 
 
 East and AVest India Dock Co. , 
 
 Glyn, Mills and Co. v 47 
 
 Eastern Counties Rail. Co. v. 
 
 Eastern Union Rail. Co. . . 316 
 
 Eastland v. Burchell 611 
 
 Easton v. London 13 
 
 Eastwood, Coverdale v.' 114 
 
 V. Kenyon 113, 115 
 
 Ebbs V. Boulnois 187, 270 
 
 Eccles v. Cheyne 548 
 
 Eckhardt, Jewitt v 410 
 
 Ede, Mitchell v 46 
 
 Edelston v. Vick 414 
 
 Edgeberry v. Stephen 381 
 
 Edgington, Brown v 628 
 
 Edmonds, Goodtitle d. Rich- 
 ards V 433 
 
 V. Low 541 
 
 Edmund r. Waugh 632 
 
 Edsun, Smarte v 488 
 
 Edwards, Re 469 
 
 Bailey v 170 
 
 V. Coombe 192 
 
 V. Coox^er 472 
 
 V. Ereeman 554 
 
 V. Hall 543 
 
 V. Hancher 192 
 
 V. Harben 61 
 
 r. Janes 123 
 
 V. Jones 45, 473, 512 
 
 v. Countess of War- 
 wick 430 
 
 Egerton, Beard v 381 
 
 Eglington, Bramwell v 293
 
 INDEX TO CASES CITED. 
 
 XXIX 
 
 PAGE 
 
 Ehrenspurger, Frasor v. . .310, 313 
 
 Eicholtz V. Bannister G'27 
 
 Elderfiold, Mattersou v 370 
 
 Elcy, Daw v 382 
 
 Elibauk, Lady, v. Moutolicu . 576 
 
 Lord Murray i'. 577, 578 
 
 Elliott V. Merriman 529 
 
 Bishops. 19 
 
 V. CordcU 578 
 
 V. Davenjiort .... 433, 547 
 
 V. Royal Exchange As- 
 surance Co 305 
 
 In the goods of 617 
 
 Ellis's Trusts, Re 587 
 
 Ellis, Ex parte, Re Ellis .... 208 
 
 Boutts I' 511 
 
 V. Houstoun 546 
 
 v. Nimmo 114 
 
 Ellison V. Ellison 45, 473 
 
 V. El win 567, 579 
 
 Lyddon r 44 1 
 
 Elton, Ex parte 492 
 
 Elves t'. Crofts 139 
 
 Elvy V. Norwood 632 
 
 Elwes, Duffield f 511 
 
 Forrest v 329, 466 
 
 r. Maw 16 
 
 Elwin, Ellison v 567, 579 
 
 Emma Silver Mining Co. v. 
 
 Grant 254 
 
 Emmett v. Hoi-ton 611 
 
 Enderby, Brooke v 496 
 
 England v. Downes 583 
 
 King r 39 
 
 Ennis, Sutton v 429 
 
 Entwistle v. Davis 543 
 
 Eqmtablc Reversionary Inte- 
 rest Society v. Fuller 453 
 
 Ermine, Bellasis v 566 
 
 Ernest, Balfour v 503 
 
 Errat v. Barlow 446 
 
 Erskine's Trust 576 
 
 Espinasse, Petre v 473 
 
 Essex, Earl of, Cadogan v. . . 455 
 
 Johnston Cock- 
 
 erell r 432 
 
 Ethei-ington «'. Parrott 608 
 
 Ettricke v. Ettricke 486 
 
 Etty V. Bridges 639 
 
 European Co. v. Royal Mail 
 
 Co 93 
 
 Em-opean, &c. Shipping Co. v. 
 
 Crosskey 321 
 
 Evans, Berrington v 152, 471 
 
 V. Bremridge 490 
 
 V. Carriugtou 620 
 
 v. Drummond 496 
 
 Field V 587 
 
 Legg V 31, 39, 62 
 
 PAGE 
 
 Evans v. Rosser 560 
 
 r. Scott 445 
 
 Turner v 422 
 
 Wilkinson v 52 
 
 V. Williams 153 
 
 Williams v 15 
 
 V. Wills 155 
 
 Everall, Holt v 299 
 
 Everard v. Poppleton 151 
 
 Everett, Eyre r 170 
 
 Evetta, Congreve v. 42 
 
 Ewer V. Corbet 528 
 
 Exmouth Docks Co., Re .... 350 
 
 Eyre v. Archer 182 
 
 ■ V. Bartrop 170 
 
 V. Everett 170 
 
 Holland v 122 
 
 W^ardv 167 
 
 Eyres v. Faulkland 425 
 
 Eyton, Pott v 498, 499 
 
 F. 
 
 Fairlie v. Boosey 407 
 
 Falke, Kemp v 54 
 
 Falkner r. Butler 441 
 
 Family Endowment Society, 
 
 Re 350 
 
 Farebrother v. Simmons .... 62 
 
 Farina v. Home 51 
 
 Farmer v. Smith 370 
 
 Sparrow v 370 
 
 Farquhar, M'Queen v 442 
 
 Farquhai-son v. Cave 512 
 
 Farr, Meredith v 546 
 
 Farrant v. Thompson 20 
 
 Farren, Kcmble v 109, 110 
 
 Faulder, Harper r 13 
 
 Faulkland, Eyres v 425 
 
 Faulkner, Bull r 38 
 
 Favro, Bloxam v 509, Ixiii 
 
 Fear v. Castle 594 
 
 Fearnside r. Flint 630 
 
 Fearnhead, Knatchbull v 534 
 
 Fearon, Busk v 303 
 
 V. Dcsbrisay 443 
 
 Feather r. The Queen 383 
 
 Fensham, Hunt v lix 
 
 Fenton v. City of London 
 
 Steam Packet Co. 95 
 
 Trueman v 116 
 
 Fenwick v. Begbie 65 
 
 r. Greenwell 467 
 
 Fereday v. Hordern 498 
 
 Ferguson r. Cristall ai, 34 
 
 Sainter I' 109 
 
 Fergusson v. Norman 137 
 
 Fernandes' Executors' case . . 524 
 
 Fcrnie, Hodgkinson v 317
 
 XXX 
 
 INDEX TO CASES CITED, 
 
 PAGE 
 
 rernie, Young v 379 
 
 Testing v. Allen 435 
 
 !Fetherstoue «'. Hutchinson .. 138 
 
 Fettipluce v. Gorges 584 
 
 Field ('. Evcans 587 
 
 Nortliey v 55 
 
 Yea V 11 
 
 Fielder, Proudley v 584 
 
 Fielding v. Lee 86 
 
 Findlater, Siegert v 419, 420 
 
 Finney, Foden v 576 
 
 Firmiu v. Pulhani 466 
 
 Firth, Ex parte. Re Cowburn 69 
 
 Fisher v. Dixon 19 
 
 f . Pimbley 316 
 
 Fitch t\ Sutton 176 
 
 Fitzer t'. Fitzer 613 
 
 Fitzgerald v. Chapman 620 
 
 Dawson v 304 
 
 Fleming v. Buchanan 436 
 
 ■ Lloyd '(' 302, 303 
 
 ■ V. Self 370 
 
 Fletcher, Ex parte 638 
 
 V. Ashburuer 455 
 
 Lechmere v 123 
 
 Flight, Curling v 640 
 
 Flint, Fearnside v 630 
 
 Flintoff, Horner v 110 
 
 Florence, He, Ex parte Wing- 
 field 63, 86 
 
 Flory V. Denny 48 
 
 Flower, Cannings v 446 
 
 Foakes, Beer v 176, Ix 
 
 Foden v. Finney 576 
 
 Foley V. Addenbrooke 483 
 
 r. Burnell 478 
 
 Paget «; 632 
 
 Foljambe, Ogilvie «» 121 
 
 V. Willoughby .... 449 
 
 Fooks, Pride v 329, 466 
 
 Foote, Woods v 182 
 
 Forbes v. Jackson 168, 169 
 
 Ford V. Dabbs 287 
 
 V. Jones 321 
 
 V. Kettle 71 
 
 V. Peering 13 
 
 Wilson V 610 
 
 Forder, Bazeley v 610 
 
 Fordham v. Wallis 123 
 
 Fordwich (Mayorof), Tomlini'. 316 
 
 Fores v. Johnes 138 
 
 Forester, Upman v 413 
 
 Forrest v. Elwes 329, 466 
 
 Fosbrooke, Bourne v 32, 44 
 
 Foster, Re 494 
 
 V. Bates 553 
 
 ■ V. Cautley 439 
 
 ■ V. Pearson 623 
 
 jj. Weston 167 
 
 PAGE 
 
 Fourdrin v. Gowdey 541 
 
 Fourdrinier, Ex parte. Re 
 
 Artistic Colovir Printing 
 
 Co 64 
 
 Fourth City Mutual Benefit 
 
 Building Society «'. Williams 370 
 
 Fowler, Re, Ex parte Bz-ookes 86 
 
 Cook V 110 
 
 V. Fowler 54 
 
 Marshall v 577 
 
 Wishart v 179 
 
 Fox, Barber v 160 
 
 Freakley v 515 
 
 Millington v 413, 414 
 
 I'. Smith 316 
 
 Webb V 270 
 
 Foxall, Phillips v 170 
 
 Foxley, Ex parte, Re Morse. . 209 
 
 Francis v. Grover 632 
 
 • V. Hawkesley 117 
 
 V. Viner 548 
 
 Franklin v. Bank of England 339 
 
 V. Hosier 36 
 
 V. Neate 33, 34 
 
 Franks, Ex parte 199 
 
 Eraser, In the Goods of 556 
 
 V. Ehreusperger . . 310, 313 
 
 Mather v 15, 65 
 
 V. Murdock 496 
 
 V. Palmer 465 
 
 V. Witt 55 
 
 Freake v. Cranefeldt .... 634, 635 
 
 Freakley v. Fox 515 
 
 Frecker, Norton v 634 
 
 Freeland v. Pearson 548 
 
 Freeman, Ex parte 494 
 
 Edwards v 554 
 
 V.Pope 472 
 
 Freemoult v. Dedire 471 
 
 Freestone v. Butcher 608 
 
 French, Clough v 158 
 
 Ex parte 451 
 
 Frere, Thomason v 485 
 
 Freshfield's Trusts, Re . . 637, 639 
 
 Freshney v. Carrick 62 
 
 Friar, Grey v 162 
 
 Frith, Cornthwaite v 474 
 
 Fritz V. Hobson 98 
 
 Frost, Williams v 376 
 
 Frowd, Moore v 465 
 
 Fry, Ex parte 494 
 
 Fryatt, Reid i) 314 
 
 Fullalove, Occleston v 546 
 
 Fuller, Cooke V 617 
 
 • Equitable Reversionary 
 
 Interest Society v 453 
 
 Furniss v. Leicester 627 
 
 Fussell V. Dowding 620 
 
 Fyfe V. Arbuthnot 42
 
 INDEX TO CASES CITED. 
 
 XXXI 
 
 PAGE 
 
 Gaffee, In ro o8() 
 
 Gale r. Buruell -12, G2 
 
 ■ Griffiths r o48 
 
 V. AVaLsh i:i2 
 
 Gallagher, Johnson v 5S4 
 
 Galsworthy, Chidell v 42 
 
 V. Strutt 101) 
 
 Gambart r. Ball lOl 
 
 r. Sumner 407 
 
 Games, Ex parte 209 
 
 Gammon, Buxl r 123 
 
 Gandy v. Gandy 012 
 
 Gardiner, Archer v 577 
 
 • Thompson v o2 
 
 Gardner v. Garratt o'.il 
 
 r. Marshall o77 
 
 Gardom, Ex parte o02 
 
 Garland, Ex parte 4'JG 
 
 Gamer v. Hannyngtou 13 
 
 Garnet, Pierson v 441 
 
 Garnett, Holroj-de v l-lo 
 
 Garrard r. Lord Lauderdale . . 474 
 
 Garratt, Gardners 531 
 
 Garrod v. Simpson 182 
 
 Gaskell v. King 137 
 
 Lee V l(j 
 
 Gaslight and Coke Company, 
 
 Patterson v 379 
 
 Gaters v. Madeley 575 
 
 Gatty, Phillipsou v 450 
 
 Gaunt, Speisrht v 467 
 
 Gayler, Howell (• 434 
 
 Gaze, Love v 549 
 
 Geake v. Ross 1 C7 
 
 Gee V. Gui'ney 442 
 
 Geen, Societe Generale de 
 
 Paris y 192 
 
 Geldard, Robinson v 545 
 
 Gent V. Harris 577 
 
 George, an infant. In re .... 447 
 
 • Agar t' 470 
 
 Gery, Humfrey, v G32 
 
 Gibbeson, Gi-eenham v 454 
 
 Gibbon, Kempe v 631 
 
 Gibbous V. North Eastern Me- 
 tropolitan Asylum District 122 
 
 Gibbs, Lindsay r 9G 
 
 Gibson, Banks v 421 
 
 t'. Dickie 113 
 
 ?-. Minet 128 
 
 Wilkinson v G 1 8, G 1 9 
 
 Gifford, Ex parte 1G9, 170, 490 
 
 ■ Nugent V 529 
 
 Gilbert v. Lewis 585 
 
 Richardson v 399 
 
 Giles, "Walker r 370 
 
 Giikes V, Leoniuo 122 
 
 PAGE 
 
 Gill, In the goods of 552 
 
 v. Shelley 546 
 
 Gillard, Bartlett r 541 
 
 Gillett V. Thornton 305 
 
 Gilly r. Burlcy 428 
 
 Ginesi r. Cooper and Co 421 
 
 Giraud, Hilton v 543 
 
 Girdlcstone, Watts v 329, 46G 
 
 Gladstone v. Padwick 82, 83 
 
 Glaysher, Ex parte 309 
 
 Gleaves v. Paine 576 
 
 Glendenning, Ex parte 195 
 
 Glengall, Earl of, v. Barnard 542 
 Gloucester, Corporation of, 
 
 Tyre v 545 
 
 Glover v. Barrie 316 
 
 Doe d. Morrison v ., . . 370 
 
 — ■ Morrison r 369 
 
 Glubb v. Attorney- General . . 544 
 Glyu, Mills and Co. v. East 
 and West Indian Dock Co. 47 
 
 Glynn, Morris v 543 
 
 ■ V. Thorpe 157 
 
 Goddard v. O'Brien 176 
 
 ■ Pedley v 318 
 
 V. Snow . , 583 
 
 Godden, Ex parte 182, 183 
 
 Godfrey v. Davis 546 
 
 v. Turnbull 496 
 
 Godsall r. Boldero 296 
 
 Boss V 455 
 
 Golding, Davis, and Co., Exp. 54 
 
 Gold.smid r. Goldsmid 442 
 
 Goldsworthy, Re 614, 615 
 
 Goldwln, Chambers v 446 
 
 Gomley v. Wood 465 
 
 Gomme, Hill r 534 
 
 Goode V. Burton 12 
 
 Goodman's Trusts, Re 557 
 
 Goodman v. Chase 120 
 
 Davis V 70 
 
 V. Harvey 623 
 
 Goodtitle d. Richards v. Ed- 
 monds 433 
 
 Goodwin v. Robarts 622 
 
 Goom V. Aflalo 52 
 
 Gordon I'. Duff 539 
 
 V. Gordon 546 
 
 V. Harper 31, 34 
 
 Norcott r 541 
 
 Gorely, Ex parte 301 
 
 Gorges, Fottij^lace v 584 
 
 Gosling, Batcsou r Ix 
 
 Gosman, Re 167 
 
 Gould, Weldon «-• 37 
 
 Goukler v. Camm 587 
 
 Gourloy, Re, Ex ptute Abbot 83 
 
 Gowdey, Fourdrin v 541 
 
 Grace t\ Smith 497
 
 xxxu 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Grace, Webb v 5G6 
 
 GrafFtey v. Humpage .... 431, 469 
 
 Graham r. Graham 541, G20 
 
 ■ r. Londonderry 573 
 
 Solomon v 59 
 
 Granc, White v 449 
 
 Grant, Emma Silver Mining 
 
 Co. V 254 
 
 v. Grant 162 
 
 Household Fire and 
 
 Carriage Accident 
 Insurance Company 
 
 (Limited) v 122 
 
 -Eoutledger 122 
 
 V. Vaughan 622 
 
 Grantham v. Hawley 41 
 
 GranVille, Blyth v 469 
 
 Grason, In re 501 
 
 Graves v. Ashford 404 
 
 Attorney- General v. . . 543 
 
 v. Weld 21 
 
 Graves' case 400 
 
 Gray v. Chiswell 492 
 
 ■ Hindv 139 
 
 Irving r 183 
 
 V. Limerick, Earl of ... . 441 
 
 — — V. Mathias 137 
 
 Great Northern Railway Co., 
 
 Harwood v 379 
 
 North London Rail- 
 way Co. V 304 
 
 Pym V 101 
 
 Great Western Railway Co., 
 
 Rouch V 258 
 
 Greaves v. Hepke 46 
 
 Shuttleworth v 539 
 
 Steward v 345 
 
 Greedy v. Lavender 579 
 
 Green, In re 535 
 
 Hardey v 42, 471 
 
 Marshall v 20 
 
 Mathers v 486 
 
 — ■ Price V 109 
 
 V. Price 138, 139 
 
 V. Smith 498 
 
 V. Wynn Ix 
 
 Greenham v. Gibbeson 454 
 
 Greenhill, Rex v 614 
 
 Greening v. Beckford 639 
 
 Greenock and Wemyss Bay 
 Railway Co., Caledonian 
 
 Railway Co. v 304, 305 
 
 Greenwell, Brett v 577 
 
 Fenwick v 447 
 
 V. Greenwell 446 
 
 Greenwood's case 348 
 
 Greesc, Richardson v 541 
 
 Gregory, D'Eyncourt v 19 
 
 Heckscher v 331 
 
 PAGE 
 
 Gresham, Wiles v 454 
 
 Grey v. Friar 162 
 
 V. Stuart 470 
 
 Grice v. Richardson 53 
 
 Griffin, Bishop of Hereford v. 399 
 
 Lee V 52 
 
 Thomp.son v 448 
 
 Griffith, Ex parte. Re Wilcoxon 263 
 
 In re 430 
 
 V. Ricketts 455, 474 
 
 Griffiths V. Gale 548 
 
 Grimes v. Hamson 370 
 
 Grissell, In re 199 
 
 Gross, Buckley i> 32 
 
 Grote, Limbard v 442 
 
 Grover, Francis v 632 
 
 Whittingstall v 492 
 
 Groves v. Clarke 577 
 
 V. Perkins 577 
 
 Grymes v. Boweren 16 
 
 Stratton v 566 
 
 Guedalla, Montefiore v 542 
 
 Guerrier, Re 254 
 
 Gumm V. Hallett 312 
 
 Gunn, Pawle v 113, 332 
 
 Gunstan, In the goods of, 
 
 Blake r. Blake 507 
 
 Gurney, Gee v. , 442 
 
 Guthrie, Hewison v 39 
 
 ■ — Leslie v 96 
 
 Gutteridge, Simmons v 515 
 
 Guy, Styles v , . , , . 466 
 
 H. 
 
 H. r. W 612 
 
 Hacon, WiUs v 182 
 
 Haddan, Mason v 305 
 
 Hadfield, Rushforth v 37 
 
 Hadgett r. Commissioners of 
 
 Inland Revenue 463 
 
 Haggarth's Trusts, Re Ixiii 
 
 Haigh, Howdeu v 15 
 
 Hale, Ex parte, Re Binns .... 255 
 
 V. Saloon Omnibus Co. . . 83 
 
 Hales V. Darell 541 
 
 Halesham v. Young 502 
 
 Haley v. Bannister 446 
 
 Halford v. Kymer 296 
 
 Hall, Ex parte, Re Cooper . . 263 
 
 f. Barrows 414, 421 
 
 Burliuson v lix 
 
 Dearie v 637, G39 
 
 Edwards v 543 
 
 V. Hall 474 
 
 V. Hardv 322
 
 INDEX TO CASES CITED. 
 
 XXXllI 
 
 PAGE 
 
 Hall, Heath v 171 
 
 V. Hewer 441 
 
 v. Hugouin 580 
 
 v. Lawrence 321 
 
 Moss V 170 
 
 • V. Norfolk Estuary Co. . .342 
 
 r. Taliuer 137 
 
 Piukney r /502 
 
 ■ v. Totter 5GU 
 
 Iveynolds r 8;) 
 
 Stanton v -078 
 
 Hallett, Gumm t; 312 
 
 Hallett's Estate, In re 177 
 
 Hallewcll, Hawkes v 141, 290 
 
 Halliday, Streatliold v 489 
 
 Haitian, Steinmitz v 577 
 
 Haly -. Barry 338 
 
 Hambidge r. De la Crouee . . 503 
 
 Hamcs v. Hames 434 
 
 Hanailton r. Bell 8o 
 
 ■ • r. Chaine 69 
 
 r . Hector (512 
 
 Kendall v 487, 491 
 
 ■ V. Kirwan 442 
 
 Ottaway r 610 
 
 Hammond, Browne v 648 
 
 V. Hammond 470 
 
 V. Hocking 76, 78 
 
 Holme V 495, 497 
 
 ■ Jennings v 352 
 
 Hamper, Ex parte 498 
 
 Hampshire r. Bradley 466 
 
 Hanbnry r. Kirklaud 466 
 
 Handier, Edwards ;• 192 
 
 Hanchett v. Briscoe 580 
 
 Hancock v. Heywood 485 
 
 Turner v 465 
 
 Handley, Keenan r 113 
 
 Hanforth, Howell r 429 
 
 Hannyngton, Garner v 13 
 
 Hanrott, Womb well v... 439, 440 
 
 Hanson v. Keeting 576 
 
 ■ V. Meyer 49 
 
 Scarlitt v 84 
 
 Harben, Edwards v 61 
 
 Harcourt, May i' Ixi 
 
 Harcourt v. Ramsbottom .... 315 
 
 Hardey r. Gi'cen 42, 471 
 
 Harding, Ex parte 62, 65 
 
 Hardy r. Bern 1()2 
 
 • Hall r 322 
 
 Hare v. Horton 15 
 
 • Hyat V 502 
 
 Harewood, Lord, Milner v. . . 507 
 
 Harland v. Binks 474 
 
 Harle, National Provincial 
 
 Bankt' 6, 69 
 
 Harley v. Harley 580 
 
 W.P.P. 
 
 PAGE 
 
 Harms f. Parsons 139 
 
 Harnett v. Macdongall 587 
 
 Harjier r. Eaulder 13 
 
 Gordon i' 31, 34 
 
 and G. E. Rail. Co., Re 309 
 
 Harrington v. Price 11 
 
 Harris, Ex parte 492 
 
 Re 544 
 
 Gent V 577 
 
 Lloyd 288, 54G 
 
 • V. Truman 86 
 
 v-WaU 117 
 
 Harrison, Ex parte, Re Betts. 255 
 
 ■ Brinsmead v 56 
 
 Grimes v 370 
 
 V. Harrison 549 
 
 V. Jackson 503, 540 
 
 «'. Paynter 172 
 
 Stannard v 404 
 
 & Co., United Tele- 
 phone Co. V 379 
 
 HaiTobin, Pole r 136 
 
 Harrod, Mathieson v 401 
 
 Harrop v. Howard 587 
 
 Hart V. Bush 51 
 
 2;. Hart 615 
 
 V. Stephens 575 
 
 Hart-Dyke, Ex parte, Re 
 
 Morrish 255 
 
 Hartford v. Jones 3G 
 
 Hartley V. Case 132 
 
 Hartnoll, Cripps v 120 
 
 Harvey r. Aston 566 
 
 Goodman v 623 
 
 V. Harvey 534 
 
 Pratt V. : 544 
 
 Thompson t' 610 
 
 Harwood v. Great Northern 
 
 Rail. Co 379 
 
 Hasluck V. Pedley 432 
 
 Hassell v. Hawkins 541 
 
 Hastings, Cave v 122 
 
 Lord Scott V 337 
 
 Hatfield r. Minet 558 
 
 Hatton, In re 192, 195 
 
 Hauxwell, Ex parte. Re Hem- 
 ingway 208 
 
 Hawe, Attree v 544 
 
 Hawken v. Bourne 502 
 
 Hawkes v. Hallewell 140, 290 
 
 V. Hubback 586 
 
 Hawkesford, Wolverhampton 
 
 New Waterworks Co. r 343 
 
 Hawkesley, Francis v 117 
 
 Hawkesworth, Bridges r 32 
 
 Hawkins, Chesterfield and Mid- 
 land Silkstone Colliery Co., 
 Limited r 182 
 
 C
 
 XXXIV 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Ila-wkins, IlasscU v 511 
 
 Hawks, Dobinson r 370 
 
 Hawley, In re 321 
 
 • Bagueley v C'27 
 
 Grantham r 41 
 
 Haworth, Mayer v 1 1.5 
 
 Hawtry r. Butliu Go 
 
 Hay, Ex parte 494 
 
 V. Palmer 429 
 
 Hayes r. Hayes 539 
 
 Massy v 585 
 
 Haygarth, Taylor r 561 
 
 Hayley, Hope r 42 
 
 Hayman, Ex parte, Ee Puls- 
 
 ford 495, 49G 
 
 Haymen, Stapleton v 90 
 
 Haymes v. Cooper 38 
 
 Haynes, Re, Ex parte National 
 
 Mercantile Bank .... 71 
 
 Brooks r 514 
 
 Hayter, Phillipson v 609, Ixiii 
 
 r. Tucker 543 
 
 Hay ward, Williams v 370 
 
 Head, March v 576 
 
 Headington, Holloway v 114 
 
 Heard v. Stamford 582 
 
 Heath t'. Hall 171 
 
 V. Key 170 
 
 v. Lewis 566 
 
 Heather, Richards v 488 
 
 Heaver, Manser v 316 
 
 Hebb'scase., 122 
 
 Hebdon t: West 295 
 
 Hecht, Hunt v 50 
 
 Heckscher v. Gregory 301 
 
 Hector, Hamilton r 612 
 
 Hedley t\ Bainbridge 503 
 
 Heinekey r. Erie oo 
 
 Helleley, Johnson v 422 
 
 Hellicar, Powell v. 512 
 
 Hembrow, Prior v 312 
 
 Heming, Cherry v 121 
 
 V. Swinnerton 309 
 
 Hemingway, Ee, Ex parte 
 
 Haiixwell 208 
 
 Hemsworth i'. Bryan 312 
 
 Henderson, Baker v , 38 
 
 • r. Maxwell . . 399, 401 
 
 ■ Wilkinson r 492 
 
 Heneage v. Hunloke 441 
 
 Henning, Whittle r 580 
 
 Heniy i\ Armstrong 474 
 
 Henshaw, Williams v 481 
 
 Hensloe's case 515 
 
 Henty v. Wrey 443 
 
 Hepke, Greaves r 46 
 
 Herbert, Siunett r 545 
 
 Hereford, Bishop of, r. Griffin 399 
 
 PAGE 
 
 Hcrlakenden's case 20, 22 
 
 Hermitage v. KUpin loo 
 
 Hertford, Marquis of, At- 
 torney-General r 536 
 
 Hcsilridge, M'Donnel r. ,, ,, 473 
 
 Heslop, Ex parte 86 
 
 ■ V. Baker 86 
 
 Hewer, Ee, Ex parte Kahen..71, 74 
 
 HaU V 441 
 
 Hewison v. Guthrie 39 
 
 Hewitt V. Kaye 511 
 
 V. Price 365 
 
 -— Webb V 170 
 
 Heyhoe i\ Burge 499 
 
 Heywood, Allwood v 13 
 
 Hancock v 48o 
 
 Hibbert, Simond v 37 
 
 Hickman, Cox v 497, 499, 502 
 
 Wheatcroft r 499 
 
 Hicks, Lovell v 502 
 
 Hickson v. Darlow 70, 75 
 
 Pliggins, Dunlop v 122 
 
 r. Pitt 195 
 
 ■ r. Sargent 167 
 
 Seed r 390 
 
 Higgs, Blades v 28 
 
 Hilbert, Tate r 511, 512 
 
 Hill V. Crook 546 
 
 Crook V 546, 547 
 
 V. Gomme 534 
 
 Johnson r 36 
 
 r. Eii-kwood 71 
 
 — Rexf 314 
 
 V. Spencer 187 
 
 r. Thompson 381 
 
 Warbiu-ton f 337 
 
 HiU's Patent 378 
 
 Hillary, Cranley v 195 
 
 Hillman, Exp., EePumfrey. . 262 
 
 Tapfield r 41 
 
 Hills «'. HiUs 512 
 
 V. Liverpool United Gas- 
 light Co 379 
 
 Hilton v. Giraud 543 
 
 Hinchcliffe r. Hinchcliffe .... 542 
 Hinchinbrook (Lord) Ship- 
 brook V 466 
 
 Hind V. Gray 139 
 
 Hindley r. Westmeath, Mar- 
 quis of 612 
 
 Hinton v. Pinke 539 
 
 V. Sparkes Ill 
 
 Hirsch r. Im Thui-n 305 
 
 Hiscox, WiUis r 466 
 
 Hitchcock V. Coker 139 
 
 Hitchins r. Kilkenny, &c. 
 
 Eail. Co 343 
 
 Hitchman v. Stewart 109
 
 INDEX TO CASES CITED. 
 
 XXXV 
 
 PAOE 
 
 Hitclmian v. Walton 15, 19 
 
 Hives, Adsetts r 13G 
 
 Hoadley v. M'Laine 50 
 
 Hoare r. Byug 432 
 
 V. Hornby 4G9 
 
 V. Parker 425 
 
 Hobby V. Allen 581 
 
 • V. Collins 581 
 
 Hobson V. Bell G40 
 
 ■ r. Blackburn 545 
 
 Fritz V 98 
 
 r.Thelluson 82 
 
 Hocking, Hammond v 76, 78 
 
 Hockley, Steadman v oS 
 
 Hodge, Walter v 511 
 
 Hodges, Belton v 200 
 
 V. Croydon Canal Co. . 632 
 
 Hodgkinson r. Fcrnie 317 
 
 Hodgson, Holland ;■ 15 
 
 v. Loy 53 
 
 Nash V 123, 177 
 
 r. Shaw 1G8 
 
 Simmonds r 303 
 
 Hodson v. Observer Life As- 
 surance Society . , . . 295 
 
 Wallis V 559 
 
 Hogg, Dean v 95 
 
 V. Skecn 502 
 
 Holden, Stokes v GO 
 
 Holder v. Cope Gil 
 
 Holderness v. CoUinson 37 
 
 V. Eankin 85 
 
 Holdsworth v. Davenport .... 544 
 
 Holford V. Phipps 4GG 
 
 Holland r. Eyre 122 
 
 • V. Hodgson 15 
 
 • V. Hughes 328 
 
 r. Worley Ix 
 
 Holliday, Watson v 254 
 
 Hollier, Raveushaw v 474 
 
 Hollinshoad, Eeid r 502 
 
 Hollis V. Biyant 287 
 
 V. Claridge 38 
 
 HoUoway ik Headington .... 114 
 Holme V. Hammond . . . .495, 497 
 
 Holmes v. Mackrell 1 IG 
 
 V. MitcheU 120 
 
 V. Prescott 435 
 
 Holroyd v. Mtirshall 42, 43 
 
 Hoh'oyde v. Gamett 155 
 
 Hoist V. Pownal 55 
 
 Holste V. Robertson 381 
 
 Holt V. Everall 299 
 
 Homan, Owen 2' 170 
 
 Home, Campbell v 442 
 
 Homewood, Leader r IG 
 
 Homfray, Phillips v 103 
 
 Honey, Ex parte, In re Jeffery 494 
 
 PAGB 
 
 Honner v. Morton 579 
 
 Honywood v. Honywood . , , . 22 
 
 Hood, Wilson v 38 
 
 Hooper v. Ramsbottom 13 
 
 V. Rossiter 428 
 
 Hope, Re 155 
 
 Attorney- General v 523 
 
 V. Hayley 42 
 
 r. Hope G13 
 
 Hope, &c. Society, Bowes v.. 350 
 
 Hopkins, Re .... 153 
 
 Trusts, Re 428 
 
 V. Logan 113 
 
 r. Prescott 138 
 
 Tugman v 584 
 
 Hopkinson v. Lee 483 
 
 Hopper, Re 321 
 
 Hopwood, Earle r 143 
 
 Hordern, Fereday v 498 
 
 Horlock, Sweetapple r 470 
 
 Hornblower r. Boidton 379 
 
 Hornby, Hoare v 469 
 
 Home, Farina v 51 
 
 Home - Payne, Hussey t' 122 
 
 Horner v. Flintoff 110 
 
 Hornsby r. Miller 62 
 
 Horsley v. Chaloner 535 
 
 Horton, Emmett v 611 
 
 Hare v, ,, 15 
 
 Langton v 43 
 
 Richardson v 488 
 
 V. Sayer 304 
 
 Wells r 121 
 
 Hosier, Franklin v 3G 
 
 Hotham v. Somerville 13 
 
 Hough, Ex parte. Re Windus 84 
 
 • r. Windus 83 
 
 Houghton V. Houghton .... 484 
 
 V. Matthews 37 
 
 Houliston V. Smyth 610 
 
 Houlston, Bogue v 404 
 
 Houlton's case 496 
 
 Household Fire and Carriage 
 Accident Insurance Co. 
 
 (Limited) v. Grant 122 
 
 Houston, Ellis v 54G 
 
 How, Jones v. , 471 
 
 Ridding r 413 
 
 Howard, Re 497, 500 
 
 ■ V. Bank of England, 589, 
 
 590, 591 
 
 Harrop r 587 
 
 V. Rhodes.. 400, 463, 466 
 
 Howarth, Samuel V 170 
 
 Howden v. Haigh 195 
 
 Howe V. Lord Dartmouth .... 328 
 
 V. Synge 137 
 
 Walter r 399, 409 
 
 c2
 
 Sxxvi 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Howe, Whittakcr v 139 
 
 Howell, Chandler v 5 41 
 
 v. Gayler 434 
 
 V. Hanforth 429 
 
 V. M'lvers 171 
 
 Thomas «> 543 
 
 Howes, Morris v 434 
 
 Howse r. Chapman 543 
 
 Hoyle, Ee 254 
 
 Hubback, Hawkes v 586 
 
 Hubbersty V . Manchester, Shef- 
 field, &c. Rail. Co 343 
 
 Huddersfield, Corporation of, 
 
 Jacomb v 303 
 
 Hudson, Ex parte, Re Walton 
 
 190, 195 
 
 Smith V 60, 55 
 
 Hughes, Burton v 34 
 
 ' V. Coles Ixiii 
 
 Holland v 328 
 
 V. Kelly 632 
 
 V. Layton 370 
 
 Oldliam V 456 
 
 Rann V , 112 
 
 • • Stovcld V 45 
 
 V. Stubbs 474 
 
 V. Wynne 161,634 
 
 Hughes' Trusts, Re 637 
 
 Hugonin, Hall v 580 
 
 Hulkes V. Day 337 
 
 Hrdme v. Chitty 613 
 
 Humble v. Mitchell 332, 365 
 
 M'lver-y 495,496 
 
 Hume V. Druyff 156 
 
 V. Richardson 452 
 
 Humfrey v. Gery 632 
 
 Humpage, Grafttey i\ , . 434, 469 
 
 Humphrey, Peer v 623 
 
 Humphreys, Davies «' 169 
 
 Humphries, Re, Smith v. Mil- 
 
 lidge 546 
 
 Hunloke, Heneage v 441 
 
 Hunt V. Bate 113 
 
 ■ v. Be Blacquiere 610, 617 
 
 v. Fensham lis 
 
 V. Hecht 50 
 
 Knight?' 195 
 
 r. Peacock 636 
 
 • Pinney r , 553 
 
 Hunter, Cruise v 614 
 
 ■ V. Daniel 140 
 
 V. Nockolds 632 
 
 Huntley v. Russell 105 
 
 Hurst v. Jennings 162 
 
 Paruham v 171 
 
 Smiths 474 
 
 Husbands, Ex parte 494 
 
 Hussey v. Horne-Payne .... 122 
 
 PAGE 
 
 Hutchings r. Smith 579 
 
 Hutchinson, Eetherstone v. . . 138 
 
 Hutlcy V. Hutley 140 
 
 Hutton V. Scarborough ClifJ 
 
 Hotel Co 358 
 
 Huxtable, Ex parte. In re 
 
 Conibeer 262 
 
 Hyat r. Hare 502 
 
 Hyde v. Price 167 
 
 Ibbetson, Ex parte. In re 
 
 Moore 86, 638 
 
 Idle's case 22 
 
 Ilderton v. Castrique 182 
 
 Ilfracombe Rail. Co., Picker- 
 ing r 337 
 
 Imperial Land Co. of Mar- 
 seilles, Re 122 
 
 Ini Thiu-n, Hirsch v 305 
 
 India and London Life Assur- 
 ance Co., Dalby v 296 
 
 Ingham, Simpson v 177 
 
 lugilby, Winn v 20 
 
 Inglebach r. Nichols 182 
 
 Ingram, Marris v 155 
 
 Inland Revenue, Commis- 
 sioners of, Hadgett v 4G3 
 
 Innes, Penny v 131 
 
 Powles V 302, 303 
 
 Inns, Stalworth v 315 
 
 Insole, Re 616 
 
 Irish Land Co., Norris r 97 
 
 Ironmonger, Lane v 608 
 
 Irons V. Smallpiece 44 
 
 Irvine, Rannie v 139, 422 
 
 Irving V. Gray 183 
 
 ■ Mercer v 110 
 
 Isaacs, CoUyer v 42, 43 
 
 Rolls V Ixii 
 
 Iveson, Other r 488 
 
 Izard, Exp., Re Chappie. . 64, 75 
 Blake v 42, 43 
 
 J. 
 
 Jackson, Ex parte. Re Bowes 255 
 
 Re 86, 638 
 
 Allen V 566 
 
 Butcher v 443 
 
 Forbes V 168,169 
 
 HaiTison v 503, 540 
 
 r. Jackson 442 
 
 V. Nicholl 55 
 
 Nottage V 406
 
 INDEX TO CASES CITED. 
 
 XXXVIl 
 
 PAGE 
 
 Jackson, Pearse v ;}70 
 
 Pui'dew V o79 
 
 V. Sinclair G;i2 
 
 • V. Thompson 288 
 
 Thorpe V 492 
 
 r. Woolley .... 123, 400 
 
 Jackson's Will, Re 470 
 
 Jacob, "Worrall f 612 
 
 Jacobs, Meux v , 15, 65 
 
 Jacomb v. Corporation of Hud- 
 
 dersfield 308 
 
 Jacquet v. Jacquet 6oo 
 
 James v. Durant 469 
 
 Johns V 474 
 
 Richards v 64 
 
 I'. Thomas 161 
 
 Jamieson, In re 321 
 
 Janes, Edwards v 123 
 
 Janson, Ex parte 492, 495 
 
 Jardine, Scarf v 496 
 
 Jarvis, Smith v 502 
 
 Jeffereyes, Watts v 337 
 
 Jeffereys v. Small 483 
 
 Jeffery, In re 494 
 
 • V. Jeffery 114 
 
 Jefferys v. Boosey 401 
 
 Boosey v 398 
 
 Jenkins, Bonnewell v 122 
 
 Perry v 033 
 
 Richardson v 158 
 
 Jenkyn V. Vaughan 473 
 
 Jenkyns v. Usborne 54 
 
 Jennings v. Brown 115 
 
 Downes r 583 
 
 • V. Hammond 352 
 
 Hurst v 162 
 
 Rawlings v 328 
 
 V. Rigby 153 
 
 Jervis, Chard r 156 
 
 ■ r. Lawrence 544 
 
 ■ Radburn v ;i26 
 
 Jervoise v. Jervoiso 573 
 
 • V. Silk 448 
 
 Jessop V. Blake 620 
 
 Jessopp 1'. Watson 558 
 
 Jewitt V. Eckliardt 410 
 
 Jewsbury, Swift v 124 
 
 Johnes, Fores v 138 
 
 •Johns V. James 474 
 
 Johnson, Ex parte. Re Chap- 
 man 09, lix, Ix 
 
 Re, Sharmau v. 
 
 Robinson 496 
 
 ■ Appleby v 122 
 
 Buckland v 50 
 
 • Cooper V 312 
 
 V. Gallagher 584 
 
 V. HeUeley 422 
 
 FAOB 
 Johnson v. Hill 36 
 
 V. Johnson 548 
 
 r. Lander 017 
 
 r. Raylton 628 
 
 ■ V. Stear 35 
 
 Worrell v 38 
 
 Johnson's Patent, Re 382 
 
 Johnston v. Orr-Ewing 413 
 
 Orr-Ewing v 413 
 
 Rawson v 53 
 
 w. Sumner 610,011 
 
 Johnston-Cockerell v. Earl of 
 
 Essex 432 
 
 Jolly V. Roes 608, 609 
 
 Jones's Will, In re 469 
 
 Jones, Ex parte, In re Grissell 199 
 
 Ex parte. Re Jones . . 200 
 
 Re 86 
 
 V. Bowden 628 
 
 V. Bright 628 
 
 Bui'ke V 634 
 
 Cleave r 123 
 
 V. Davids 168 
 
 Dewhirst v 182 
 
 Edwards v. . . 45, 473, 512 
 
 Ford V 321 
 
 ■ Hartford v 36 
 
 V. How 471 
 
 V. Jones 566 
 
 V. Just 627, 628 
 
 v. Lock 45 
 
 Macoubrey v 441 
 
 Merry weather y 612 
 
 r. Morris 182 
 
 V. Ogle 431 
 
 Reilly v 109 
 
 — Scott r 635 
 
 • — Tyler v 31*2 
 
 ■ r. Waite 612 
 
 Waiter 138 
 
 Joseph V. Lyons lix 
 
 Suche & Co. Limited, 
 
 Re 363 
 
 Joyce, Re 05 
 
 ■ i'. Swann 49 
 
 Judd, Coote^- 401 
 
 Judkin's Trusts, Re 448 
 
 Judson, NichoUs v 541 
 
 Jukes, Kilshaw v 497 
 
 Just, Jones v 627, 628 
 
 K. 
 
 Kahen, Ex parte. Re Hewer 71, 74 
 
 Kain, Shepherd v 627 
 
 Kaye, Hewitt v oil 
 
 Keane, Mornington r 471
 
 XXXVUl 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Kearsley, Morris v 484 
 
 V. Colo 490 
 
 Kearton, Dawson r 115 
 
 Keating, Hanson v 576 
 
 Smith V 474 
 
 Keats, Williams v 496 
 
 Keeley, Winch r 171 
 
 Keenan V. Handley 113 
 
 Keightley v. Watson 483 
 
 Keith, Brooks v 470 
 
 V. Burrows 96 
 
 ■ Cornmell v 470 
 
 • Rees r 578 
 
 Kekewich v. Manning 473 
 
 Kelly, Archer v 469 
 
 ■ Hughes V 632 
 
 Kerable v. Farren 109 
 
 Kemp V. Falke 54 
 
 Philanthropic Society v. 545 
 
 Kempe v. Andrews 483 
 
 V. Gibbon 631 
 
 Kendal v. Marshall 55 
 
 Kendall, Brierley v 62 
 
 V. Hamilton .... 487, 491 
 
 Kennay, Rogers v 32 
 
 Kennedy, Ex parte 492 
 
 Molouy V 584 
 
 Kensington, Ex parte 492 
 
 V. Dollond 685 
 
 Kenyon, Eastwood v 113, 115 
 
 Ker V. Lord Dungannan .... 425 
 
 Keitison v. Cole 137 
 
 Kershaw, Dewhirst v 182 
 
 Kettle, Ford r 71 
 
 Kettlewell. Meek t' 114 
 
 Key, Heath v 170 
 
 Kibble, Ex parte. In re Onslow 117 
 
 Kidson v. Tui'ner 116 
 
 Kilkenny, &c. Rail. Co. Deve- 
 
 reux V 343 
 
 Hitchins r 343 
 
 Killby V. Wright 182 
 
 Kilpin, Hermitage v. , 155 
 
 Kilshaw r. Jukes 497 
 
 Kimpton, Betts v 575 
 
 Kincaid, In re 576 
 
 King (The) v. Sankey 38 
 
 See also Rex. 
 
 King V. England 39 
 
 Gaskellv 137 
 
 O'Halloran v 587 
 
 V. RendaU 183 
 
 Kingham, Reader v 120 
 
 Kingsford v. Merry 46 
 
 Kingsley's Trust, In re 617 
 
 Kinnaird v. Webster 177 
 
 Kinnersley v. Mussen 151 
 
 Kinnier, Atkyns f . ..109, 110, 139 
 
 PAGE 
 
 Kirby v. Potter 539 
 
 Kirk V. Blurton 502 
 
 v. Todd 103 
 
 Erkland, Hanbury v 466 
 
 Kirkman r. Booth 496 
 
 Needliam I' 471 
 
 Kirkpatrick v. Tattersall .... 116 
 
 Kirkwood, Hill v 71 
 
 Earwan v. Daniel 475 
 
 Hamilton v 442 
 
 Kitchen, Dickinson v 93 
 
 I\atchin, Re 255 
 
 Kitson, West London Com- 
 mercial Bank v 503 
 
 KnatchbuU v. Fernhead .... 534 
 
 Knight, Re 54, 255 
 
 V. Barber 332, 365 
 
 V. Boughton 429 
 
 V. Hunt 195 
 
 Krehl v. BurreU 98 
 
 Kruger v. Wilcox 39 
 
 Kymer, Halford v 296 
 
 Kynaston, Clayton v 487, 490 
 
 Lacy V 490 
 
 Kyne v. Moore 137 
 
 Kynman, Whinman v 123 
 
 Kynnersley, Marquis of Or- 
 mond V. ,.,.,. 322 
 
 Labouchere v. Dawson 421 
 
 Lacey, Thompson v 35 
 
 Lack, Thompson v 170, 490 
 
 Lackington v. Atherton 53 
 
 Lacy, In re, Ex parte Taylor . Ix 
 
 V. Kynaston . . , , 490 
 
 V. Rhys 400 
 
 Ladbi'ooke, Wheelhouse v . . ,, 162 
 
 Laing, Tucker v 170 
 
 Lake r. Craddock 483 
 
 Tyler v 585 
 
 Williams v 120 
 
 Lakeman v. Mountstephen . . 120 
 
 Lambert's case 502 
 
 Lambert, Clough V 613 
 
 Lampert's case 424 
 
 Lampleigh V. Brathwait .... 113 
 
 Lamport, Collins v 93 
 
 Lancashire and Yorkshire Rail. 
 
 Co., Schotsmans i'. ....... . 56 
 
 Land Financiers, Association 
 
 of, Re 363 
 
 Land and Water, Cox v 409 
 
 Lander, Johnson v 617 
 
 Lane v. Bui-ghart 120 
 
 Durnford v 667
 
 INDEX TO CASES CITED. 
 
 XXXIX 
 
 PAGE 
 
 Lano r. Ironmonger 008 
 
 Langdale, Lord, Ashton v. 543, 0-14 
 
 Laugford, In re 4.33 
 
 ■ ■ Avery v 139 
 
 Langley, Mutual Life Ass. v. Ixiii 
 
 Laugston, Wetherell v 483 
 
 Laugton v. Horton 43 
 
 Laslibrook v. Cock 486 
 
 Lassells v. Cornwallis 436 
 
 Lauderdale, Lord, Gerrard v.. 474 
 
 Lavater, Walton v 394, 48o 
 
 Lavender, Greedy v 579 
 
 Lavell, JVIagee v 110 
 
 Law V. Bagwell 474 
 
 V. London Indisputable 
 
 Life Policy Co 29(5 
 
 Lawrence, Hall v 321 
 
 ■ Jervis v 544 
 
 ■ • v. Lawrence Ixii 
 
 v. Smith 138 
 
 Sellers v 104 
 
 Laws, Blacklow v 585 
 
 Lawton v. Lawton 19 
 
 Laythoarp v. Bryant 122 
 
 Layton, Clifford r G 10 
 
 Hughes r 370 
 
 Lazarus v. Andrade 42 
 
 Lea, Barker v 577 
 
 V. Whitaker 109, 111 
 
 Leader v. Home wood IG 
 
 Leake v. Loveday 31 
 
 Monys v 140 
 
 Leather, Lister v 379 
 
 Leather Cloth Co. Limited i'. 
 American Leather Cloth Co. 
 
 Limited 413, 414 
 
 Leathes v. Leathes 13 
 
 Lechmere v. Earl of Carlisle. . 45G 
 
 r. Fletcher 123 
 
 Ledsam, Russell v 377 
 
 Lee r. Bayes G24 
 
 Brown r 1G9 
 
 Fielding v SG 
 
 ■ v. Gaskell 1 G 
 
 V. Griffin 52 
 
 Hopkinson v 483 
 
 V. Lockhart 195 
 
 Morris v 133 
 
 V. Muggeridge 115 
 
 V. Nuttall 153, 517 
 
 . • r. Pain 548 
 
 V. Prieaux 584 
 
 Stannard v 404 
 
 Wai-ing V 441 
 
 V. Young 454 
 
 Leeder, BiddeU v 138 
 
 Legg V. Evans 31, 39, 62 
 
 Lcggott V. Barrett 421, 422 
 
 Lesrh, Courtauld v 317 
 
 PAGE 
 
 Leicester, Furniss r. , , 627 
 
 r. Rose 195 
 
 Leighton v. Wales 109, 139 
 
 Leith, Mant v 450 
 
 Lempriere, T>e la Garde v. . , 577 
 
 Leonard v. Baker 289 
 
 Leonino, Gilkes v 122 
 
 Lepine v. Bean 546 
 
 Lescher, Baine v 647 
 
 LesHe, Ex parte, Ro Guerrier. 254 
 
 r. Guthrie 96 
 
 Mainwaring r GIO 
 
 V. Richardson 314 
 
 Sing r 441 
 
 Lett, Stahlschmidt v 634 
 
 Le Vasseur v. Scratton . .567, 579 
 Levenstein, Badische Anilin 
 
 und Soda Fabrik y 379 
 
 Levy v. Walker Ixii 
 
 Lewen I'. Dodd , 486 
 
 Lowers v. Earl of Shaftesbury 98 
 
 Lewis Bowles's case 22 
 
 Lewis, Gilbert v 585 
 
 Heath v 566 
 
 ■ V. Madocks 42, 471 
 
 V. Marling 379 
 
 Reynell v 504 
 
 V. Rossiter 316 
 
 Leyland v. Stewart 402 
 
 Lickbarrow v. Mason 54 
 
 Liddlow V. Wilmot 610 
 
 Liford's case 21 
 
 Limbard v. Grote 442 
 
 Limerick, Earl of. Gray v. , . 441 
 
 Lincoln v. Windsor 465 
 
 Lindsay, Cundy v 623 
 
 V. Gibbs 96 
 
 Lingard, Ex parte 322 
 
 Lingen r. Sowray 456 
 
 Linley v. Taylor 543 
 
 Linton, Trollope v 568 
 
 Lisle, Agar v 30 
 
 Lister r. Leather 379 
 
 Tidd v ; . . 576, 578 
 
 Littledale v. Bickersteth .... 545 
 
 Littlefield i". Shee 115 
 
 Liverpool Borough Bank v. 
 
 Turner 92 
 
 Corp. of, Scott v. . . 305 
 
 Marine Credit Co. v. 
 
 Wilson 96 
 
 L^nited Gas Light 
 
 Co., Hills V 379 
 
 Livesay v. Redfern 540 
 
 Llanwarne, In the goods of . , 556 
 
 Lloyd v. Ashby 502 
 
 ■ V. Baldwin 457 
 
 CuUiugworth v 195 
 
 V. Fleming 302, 303
 
 xl 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Lloyd, Harris v 288, 546 
 
 V. Lloyd 566 
 
 Powell r 179 
 
 V. Tench 559 
 
 Lock, Jones v 45 
 
 Lockhai't, Lee v 195 
 
 . r. ReiUy 169 
 
 Lodge V. Pritchard 492 
 
 Loftus, Eicketts r 440 
 
 Logan, Hopkins v 113 
 
 Lomas v. Wright 1 03 
 
 London, Easton v 13 
 
 London and County Bank v. 
 
 Terry 177 
 
 and Paris Hotel Co. 
 
 Bird V 52 
 
 and Provincial Bank v. 
 
 Boyle 592 
 
 Dock Co. Calvert v. . . 170 
 
 India Rubber Co. He 
 
 350, 361 
 • Indisputable Life Policy 
 
 Co. Law r 296 
 
 • Small Arms Co. Dixon v. 383 
 
 Londonderry and Coleraine 
 
 Rail. Co. Reg. v. 343 
 
 Graham v 573 
 
 Long V. Storie 140 
 
 Longbottom r. Berry 15 
 
 LongstafE r. Meagoe 15 
 
 Lonsdale, Earl of, v. Countess 
 
 of Berchtoldt 433 
 
 ■ . Riggi'. .. 28 
 
 Prideaux v 583 
 
 Loog, Singer Maniifacturing 
 
 Co. r 413, 414, 419, 420 
 
 Lopez, Ex parte 192 
 
 Lord, In re 320, 321 
 
 V. Price 31, 39 
 
 Love V. Gaze 549 
 
 Loveacres d. Mudge v. Blight 486 
 
 Loveday, Leake i> 31 
 
 Lovejoy, Cheese v 509 
 
 Lovell v. Hicks 502 
 
 V. Newton 589 
 
 Loveridge r. Cooper .... 637, 639 
 Lovering, Ex parte, Re .Fones 86 
 
 . Re Murrell 86 
 
 Low, Edmonds v 541 
 
 V. Routledge 401 
 
 Lowe, Banner v 430 
 
 Lewis V. Rumney 634 
 
 Lowndes v. Collins 167 
 
 V. Lowndes 318 
 
 V. Norton 22 
 
 Loy, Hodgson v 53 
 
 Luard's case 582 
 
 Lucas V. Dorrien 46 
 
 Smiths 470,567 
 
 PAGK 
 
 Lucas, Tamvaco v 303 
 
 t'. Wilson 318 
 
 Lyckley, Pattinson v 136 
 
 Lucy's case 114 
 
 Lunu, Bank of England v. 337, 339 
 
 V. Thornton 42, 43 
 
 Lush, Sharp v 528, 531 
 
 Lushington v. Boldero 22 
 
 Lyddon v. Ellison 441 
 
 Lyde r. Barnard 124, 038 
 
 ■ V. Russell 16 
 
 Lye, Crutwelli' 421 
 
 Lygon V. Lord Coventry .... 449 
 
 Lynch v. Dalzell 301 
 
 Lyon V. Baker 465 
 
 Porrin v 565 
 
 Lyons v. De Pass 623 
 
 Josej)h V lix 
 
 V. Tucker 72 
 
 Lysons v. Barrow 519 
 
 Lytton, Bennett v 457 
 
 M. 
 
 Maberley i: Turton 448 
 
 Macarthur v. Campbell 319 
 
 Macaulay, Bailey v 504 
 
 M'Colla, Re 189, 190 
 
 M'Culloch, Barrack r 473 
 
 M'Donald, Walter r 130 
 
 M'Donnell v. Hesilrige 473 
 
 Macdougall, Harnett v 587 
 
 V. Robertson. .312, 313 
 
 M'Ewan V. Smith 40 
 
 M'Earlane's claim 254 
 
 M' George, Ex parte. Re 
 
 Stevens 201 
 
 M'Guire, Ashbumer v 540 
 
 M'lver V. Hiunble 495, 496 
 
 M'lvers, Howell v 171 
 
 Mackay, Bentley v 473 
 
 V. Douglas 472 
 
 M'Kenzie's Settlement, Re . . 470 
 
 — Trvists, Re 477 
 
 Mackenzie v. Mackenzie .... 434 
 
 Sandeman v 441 
 
 Mackinnon v. Stewart 474 
 
 Mackintosh r. Trotter 15 
 
 Wellington v 304 
 
 Mackrell, Hobnes v 116 
 
 M'Laine, Hoadley v 50 
 
 M'Laren, In re, Ex parte 
 
 Cooper 55 
 
 • Ex parte, ReM'CoUa, 
 
 189, 190 
 
 Maclaren v. Stainton 428 
 
 Maclean, Sanders v 46 
 
 Macleod «'. Annesley 450 
 
 V. Drummond 529
 
 INDEX TO CASES CITED. 
 
 xli 
 
 PAGE 
 
 M'Michacl, Boydell v 19 
 
 Macmillan, Bergman v 485 
 
 Macnauglit v. liussell 183 
 
 M'Neillie v. Actou 49G 
 
 Macoubrcy i\ Jones 441 
 
 M'Queeu i'. Farquliar 442 
 
 Maddison, Benyon v 4;i3 
 
 Madeley, Gaters r 515 
 
 Madocks, Lewis v 42, 471 
 
 Magee v. LavcU 110 
 
 Maggi, He, Winchousc r. 
 
 Winehouse 1-53, .517 
 
 Maguire, Caulfield r 168 
 
 Maiuwaring's Settlement, Re 470 
 
 Mainwaring r. Leslie 610 
 
 Malcolm v. Charlcsworth .... o78 
 
 Malcolmsou, Plimpton v 381 
 
 Malkin r. Adams 198 
 
 • Attorney-General v. . . 434 
 
 Mallan v. May 137, 139 
 
 Mallet, Duiinicliff r 485 
 
 Malloney, Bindley r 613 
 
 Malone v. Minoughan 12 
 
 Maltby r. Carstairs 170 
 
 Man V. Shiffner 37 
 
 Manby v. Scott 582, 608, 611 
 
 Manchester, Sheffield, (fee. Rail. 
 
 Co., Hubbersty v 343 
 
 Manders v. WiUiams 33 
 
 Mangles, Naylor v 37 
 
 Mann, Burnet v 558 
 
 Manning's, Mathew, case . . 424 
 
 • Kekewich v 473 
 
 Manser r. Heaver 316 
 
 Mant V. Leith 450 
 
 March r. Attorney- General . . 543 
 
 r. Head 576 
 
 V. Russell 534 
 
 V. Warwick 183 
 
 Mare v. Earle 195 
 
 ■ V. Warner 195 
 
 Market overt, The case of ... . 623 
 
 Markham, Bunn v 512 
 
 Marland, Ex parte, Re Ashton 187 
 Marlborough, The Duke of, f. 
 
 St. John 105 
 
 Marling, Lewis v 379 
 
 Marriott v. The Anchor Rever- 
 sionary Co. Limited 93 
 
 Marris, Bower v 177 
 
 V. Ingram 155 
 
 Marsden v. Savillo - street 
 
 Foundry Engineering Co . . 381, 
 382 
 
 Marsh, Archer V 139 
 
 V. Conquest 399 
 
 Stone V 502, 624 
 
 Marshall r. Fowler 577 
 
 Gardner v 577 
 
 PAGE 
 
 Marshall v. Green 20 
 
 Holroyd v 42, 43 
 
 Kendal v 55 
 
 V. Marshall G12 
 
 Martin, Collins r 133 
 
 V. Crompo 483 
 
 v. Martin 446, 449 
 
 Reyuish r 566 
 
 r. Sedgwick 503, 639 
 
 Townsend v 540 
 
 ■ W. E. (Governor of 
 
 Christ's Hospital, Breck- 
 nock, and), In the matter 
 of an Arbitration between . . 309 
 
 Martindale, Anderson v 483 
 
 ■ V. Booth (ji 
 
 r. Smith 48 
 
 Taylor v 327 
 
 Mason v. Bogg 1 ,53 
 
 V. Broadbent 632 
 
 Davis t' Hi!) 
 
 V. Haddan 305 
 
 Lickbarrow v 54 
 
 r. Morgan 574 
 
 Sidwell (' 116 
 
 V. Wallis 314 
 
 Massam r. Thorley's Cattle 
 
 Food Co 419, 420 
 
 Thorley's Cattle Food 
 
 Co. V 420 
 
 Massy v. Hayes 08,3 
 
 Masterman, Earl of Dun- 
 
 donald v ,j02 
 
 Mather v. Fraser 15, 65 
 
 V. Scott 545 
 
 Mathers v. Green 486 
 
 Mathias, Gray v 137 
 
 Mathieson v. Harrod 401 
 
 Matterson r. Elderfield 370 
 
 Matthew, Ex parte Ix 
 
 Matthews r. Baxter 143 
 
 r. Brise 4,30 
 
 Clement v 41, 42, 43 
 
 Houghton r 37 
 
 Smith r 57(3 
 
 Walker v G''4 
 
 r. Whittle 593 
 
 Young r 45 
 
 Maude, Benson r 534 
 
 Scales r 45 
 
 Maunder, Wright r 288 
 
 Maw, Elwes v 10 
 
 Mawdesley, Driver r 474 
 
 Maxwell's trusts, lu re 428 
 
 Maxwell, Henderson v. ..399, 401 
 
 May, Ex parte Ix 
 
 V. Chapman , 133 
 
 Croxton r 577 
 
 V. Harcourt Ixi
 
 xlii 
 
 INDEX TO CASES CITEU. 
 
 PAGE 
 
 May, Mallan v 137, 139 
 
 V. Thomson 122 
 
 Maycock, Crossley v 122 
 
 Mayor, Boaler r 170 
 
 Squire v 19 
 
 Maze, Aubert v 137 
 
 McLaren, Re, Ex parte Cooper 55 
 
 McLean, Stevenson v 122 
 
 Meacher v. Younge 448 
 
 Mead, Re, Austin v. Mead . . 511 
 
 Meads, Taylor r 584 
 
 Meagoe, LongstafE r 15 
 
 Medina v. Stoughton G27 
 
 Meek v. Kettle well 114 
 
 Megevand, Ro, Ex parte Del- 
 
 hasse 497, 500 
 
 MeUer, Paine v 302 
 
 Mellon, Debenham v 582, 608, 
 
 609 
 Mellor's policy trust, In re , , 299 
 
 MelvUl, Otter v 469 
 
 Melville, Preston v 428 
 
 • V. Stringer 77, lix 
 
 Mentney v. Petty 559 
 
 Menzies, Belts v 379 
 
 Mercer v. Irving 110 
 
 Mercier v. Williams 592 
 
 Meredith r. Earr 546 
 
 Merrett, Powell r 561 
 
 Merriman, Elliot v 529 
 
 V. Ward 177 
 
 Many, liingsford v 46 
 
 Merry weather v. Jones 612 
 
 Mersey Steel and Iron Co. v. 
 
 Naylor Ixi 
 
 Meryon v. CoUett 434 
 
 Metcalf , Wise v 104 
 
 Metropolitan Bank,RumbaUv. 622 
 Metropolitan Counties, &c. 
 
 Society v. Brown 15 
 
 Meux, Baggott v 587 
 
 V. Bell 038 
 
 ■ V. Jacobs 15, 65 
 
 Mexborough v. Bower 304 
 
 Meyer, Hanson v 49 
 
 V. Haworth 115 
 
 Meyerstein, Barber v 46 
 
 Meymot, Ex parte 200 
 
 Meyrick, Attorney- General v. 543 
 
 Michell V. Michell 429 
 
 Michell's Trusts, In re 469 
 
 Michelmore v. Mudge 579 
 
 Middleton, Copis v 168 
 
 Midland Rail. Co. v. Pye .... 617 
 
 Miles V. Presland 337 
 
 MiU, The Queen v 390 
 
 Miller, Hornsby v 62 
 
 V. Miller 44, 511 
 
 V. Race 622 
 
 PAGE 
 
 Miller, Spackman v 62 
 
 V. Taylor 398 
 
 Millidge, Smith v 546 
 
 Millington v. Eox 413, 414 
 
 Mills, Ex parte. In re Tew . . 501 
 
 V. Barber 125 
 
 ■y. Bayley 310 
 
 Milne, Stott v 466 
 
 Walker r 543, 544 
 
 Walmesley v 15 
 
 Milner v. Lord Harewood .... 567 
 
 Milvain, Chapman v 345 
 
 Minet, Gribson r 128 
 
 Hatfield v 558 
 
 Miniiit V. Whinery 502 
 
 Minoughan, Malone v 12 
 
 Mitchell, Re, Ex parte Cun- 
 ningham Ix 
 
 Brooke v. . . 31, 312, 313 
 
 Doe d. Esdaile v. . , 258 
 
 ■ v. Ede 46 
 
 Hohnes v 120 
 
 Humble r 332, 365 
 
 Mitchell's Estate, In re 544 
 
 Trade Mark, In re. . 417 
 
 Moffatt, Bank of England i;. . 339 
 
 Mollard, Bagley v 546 
 
 Mollett V. Wackerbath 136 
 
 Moll wo, March & Co. v. Court 
 
 of Wards 497,498 
 
 Molony v. Kennedy 584 
 
 Monkhouse, Ex parte, Re Dale 186 
 Monkman v. Shepherdson. ... 115 
 Montagu, Ex parte. Re 
 
 O'Brien 48 
 
 Montague i'. Benedict, 582, 608,609 
 
 Monteliore v. Guedalla 542 
 
 Montolieu, Lady EUbank v. . . 576 
 
 Monys v. Leake 140 
 
 Moodie v. Bannister 631 
 
 Moor V. Barham 559 
 
 Stokes V 121 
 
 Williams v 117 
 
 Moore and Robinson's Bank- 
 ing Co., Ex parte. 
 In re Armytago .... 69 
 
 Re, Ex parte Ibbetson 86, 
 
 638 
 
 ■ Cramer v 470 
 
 V. Darton 511 
 
 V. Frowd , . . , 465 
 
 Kyne V 137 
 
 V. Moore 587 
 
 V. Mollis 586 
 
 Mordiie v. Palmer , 319 
 
 Morell V. Dubost 149 
 
 Morgan, Ex parte 183 
 
 r. Abergavenny (Earl 
 
 of) 23
 
 INDEX TO CASES CITED. 
 
 xliii 
 
 PAGE 
 
 Morgan, Mason v 674 
 
 Osborn r 577 
 
 Rickmau v 542 
 
 Morley r. Atteuborough .... G27 
 
 Bird V 481, 547 
 
 V. Boothby IIS 
 
 Child t' 3;U 
 
 ' V. Eennoldsou .... 565, 5GG 
 
 Roddam v G.'il 
 
 ■ • Wright V 578 
 
 Mornington v. Keano 471 
 
 Morris, Re, Ex parte Webster 71 
 
 Diike of Newcastle v. 200, 
 
 292 
 
 • V. GljTin 513 
 
 • V. Howes 434 
 
 • Jones V 182 
 
 • V. Kearsley 484 
 
 V. Leo 133 
 
 Moore v 586 
 
 Nichols V 195 
 
 Taunton v 577, 578 
 
 Morrish, Re 255 
 
 Morrison, CoUett v 296 
 
 Dutton V 179 
 
 V. Glover 369 
 
 Morse, Re 209 
 
 Mortimer v. Picton 452 
 
 Mortimore v. Mortimore .... 450 
 
 Morton v. Copeland 399 
 
 Honner v 579 
 
 V. Tibbett 50 
 
 Moseley, Nye v 137 
 
 V. Simpson 308 
 
 Mosley v. Baker 369 
 
 Moss, Burrough v 574 
 
 V. Hall 170 
 
 Turquand v 183 
 
 Motley V. Dowmuau 413 
 
 Mottram, Walker v 421, 422 
 
 Mouflet V. Cole 139 
 
 Mountstephen, Lakeman r. .. 120 
 
 Mudgo, Michelmore v 579 
 
 Muggeridgo, Lee v 115 
 
 Mullen V. Bowman 519 
 
 MuUiugs, Phillips v 474 
 
 MulUs, Coxhead r 117 
 
 Munn, Ashworth v 544 
 
 Munnings, Attwood v G2G 
 
 Munro, Ex parte 637 
 
 Murdock, Eraser v 496 
 
 Murray v. East India Co 633 
 
 V. Lord Elibank . .577, 578 
 
 Murrell, Re, Ex parte Lever- 
 ing 86 
 
 Mussen, Kinnex'sley v 151 
 
 Mutual Life Assurance v. 
 
 Langley Ixiii 
 
 Myers v. Perigal 643 
 
 N. PAGE 
 
 Nash V. Hodgson 123, 177 
 
 ■ Sprigens v 321 
 
 National Bank of New Zealand, 
 
 Ward V 170 
 
 National Mercantile Bunk, 
 
 Ex parte, Re Playnes .... 71 
 National Provincial Bank v. 
 
 Harle 6, 69 
 
 Naylor v. Mangles 37 
 
 Mersey Steel and Iron 
 
 Co. V Ixi 
 
 Neal, Wcldon v 600 
 
 Neate, FrankKn v 33, 34 
 
 Needham v. Kirkham ...... 471 
 
 ■?'. Smith -171 
 
 • Webb V 552 
 
 Neilson, Ex parte 347 
 
 V. Betts 397 
 
 Neptune Max'ino Insiu-. Co., 
 
 Bellas V 302 
 
 Nerinckx, Van Gheluive v. . . 153 
 
 Nesham, Barry v 497 
 
 Netherseal, Rex v , 517 
 
 Neville, Taylor r 400 
 
 Newall, In re 379 
 
 Ncwbou, Wakefield v 38 
 
 Newcastle, Duke of, v. Morris . 200, 
 
 292 
 
 Newdogate, Bradlaugh v 140 
 
 Newman, In re, Exp. Capper 110 
 
 Paget' 167 
 
 Newnham, Parbery v 314 
 
 Newton, Ex parte 465 
 
 V. Askew 473 
 
 V. Beck 12 
 
 Lovell r 589 
 
 V. Sherry 535 
 
 and Hetherington, Re 309 
 
 Newton's Patents, Re Ixii 
 
 Nichol, Jackson v 55 
 
 NichoUs r. Bastard ." 33 
 
 V. Judson 541 
 
 V. Rosewarue 373 
 
 V. Stretton 138,139 
 
 Nichols, Inglebach v. , 182 
 
 V. Morris 195 
 
 ■ «'. Roe 317,318 
 
 Nicholson v. Bower 50 
 
 V. Drury Buildings 
 
 Estate Co 618 
 
 ■ Potter V 151 
 
 ■ t'. Potts 182 
 
 ■t'. Revill 170,490 
 
 Nickoll, Ex parte Ix 
 
 Nicolls, Smith v 153 
 
 Ninimo, EUis v 114 
 
 Nix, Bryans v 46 
 
 Nixon V. Brownlow 343 
 
 Noble, Dovayues v 492, 496
 
 xliv 
 
 INDEX TO' CASES CITED. 
 
 PAGE 
 
 Noble, Vulliamy v 49(3 
 
 r. Willock SSS 
 
 Nockolds, Hunter v G3'2 
 
 Norbury v. Norbury 328 
 
 Norcliffe, Ambergatc, &c. 
 
 Kailway Co. r 343 
 
 Norcott r. Gordon 541 
 
 Norfolk Estuary Co., Hall v. 342 
 
 Norman r. Baldry 534 
 
 Fergiisson v 137 
 
 ■ ?'. Phillips 51 
 
 V. Thompson .... 176, 194 
 
 Norris v. Irish Land Co 97 
 
 r. Wright 451 
 
 North Eastern Metropolitan 
 
 Asylum District, Gibbons v. 122 
 North London Railway Co. v. 
 
 Great Northern Railway Co. 304 
 North of England Pure Oil- 
 cake Co. V.Archangel Mari- 
 time Insurance Co 303 
 
 North and South Wales Bank, 
 
 Duncan, Fox and Co. v. . . 131 
 North Western Bank, Cole v. 626 
 
 Northcote v. Donghty 117 
 
 Northern Counties of England 
 Eire Insurance Co., Re .... 363 
 
 Northey r. Field 5o 
 
 ■ V. Northey 573 
 
 Norton, Re 185 
 
 v. Erecker 034 
 
 ■ Lowndes v 22 
 
 Norton's patent. In re 378 
 
 Norwood, Elvy v. . , 632 
 
 Nottage V. Jackson 406 
 
 Noui'se, Richardson v 316 
 
 Nugent, Blair v 630 
 
 V. Gifford 529 
 
 Numes v. Scixjio 332 
 
 Nimn, Drew v 610 
 
 Nurse V. Craig 611 
 
 Nuttall, Caunington v 390 
 
 Lee V 153, 517 
 
 Nye V. Moseley 137 
 
 0. 
 
 Oastler, Ex parte Ix 
 
 O'Brien, Re, Ex parte Mon- 
 tagu 48 
 
 . Goddard v ■ . . 176 
 
 Observer Life Assurance So- 
 ciety, Hodson V 295 
 
 Occleston v. Eullalove 646 
 
 Ockenden, Ex parte ........ 35 
 
 Ogilvie V. Eoljambe 121 
 
 Ogle, Jones v 431 
 
 O'Hallorau r. King 587 
 
 Oldham v. Hughes 456 
 
 PAGE 
 
 Olive, Stephens t" 612 
 
 Oliveii'a, Beamnont v 545 
 
 Oliver, Ex parte 195 
 
 Smith V 544 
 
 Ommanney, Robinson v 254 
 
 Onslow Re 117 
 
 V. Onslow 560 
 
 Onwhyn, Stockdale V 138 
 
 Oppenheim, Wittman v Ixii 
 
 Ormond (Marquis of) r. Kyn- 
 
 nersley 322 
 
 Ormonde (Earl of), Clarke v. 531 
 
 Orr r. Dickinson 94 
 
 Orr-Ewing r. Johnston 413 
 
 Johnston v 413 
 
 Osborn v. Morgan 577 
 
 Osborne, Ex parte 370 
 
 Silkt^ 270 
 
 Other V. Iveson 488 
 
 Ottaway v. Hamilton 410 
 
 Otter v. Melvill 409 
 
 Oulton, Crallan r 634 
 
 Ouseley v. Anstruther 329 
 
 Outram, Ashworth v 584, 589 
 
 Overhill's trusts 546 
 
 Owen, Eardley r 471 
 
 r. Homan 170 
 
 «'. Thomas 122 
 
 Oxford, Earl of, Beavan v. . . 337 
 
 Ozard i\ Darnford 611 
 
 P. 
 
 Packman, Sloane r 140 
 
 Padstow Total Loss and Col- 
 lision Assur. Association, Re 352 
 
 Pad wick, Gladstone v 82, 83 
 
 Page I'. Newman 167 
 
 V. Page 547 
 
 Powles V 503, 639 
 
 r. Wisden 401 
 
 Paget V. Foley 632 
 
 Pain, Lee v 548 
 
 Ridout V 316, 317 
 
 r. Whitaker 34 
 
 Paine, Gleaves v 576 
 
 v. Meller 302 
 
 Palles, Simmonds r 475 
 
 Palmer, Fraser v 465 
 
 HaUi) 137 
 
 Hay V 429 
 
 Mordue v 319 
 
 Vanderburg'r 45 
 
 V. Wakefield" 582 
 
 V. AVheeler 442 
 
 Palmer's Trade Marks, Re . . 417 
 
 Pamiell, In re 254 
 
 Swift V 64, 75 
 
 Paper Staining Co., Ex parte . . 190
 
 INDEX TO CASES CITED. 
 
 xlv 
 
 PAGE 
 
 Parbery v. Newnham 314 
 
 Pardo V. Bingham 631 
 
 Paris V. Paris 428 
 
 Sparrow v 109 
 
 Parish, Dnimmond r 507 
 
 Parko, Blaiborg v 71 
 
 Parker, Ro, Ex parte Charing 
 Cross Advance and 
 Deposit Bank .... 69 
 
 Pe, Ex parte Danu . , 209 
 
 Baldey v 51 
 
 V. Butcher 370 
 
 Clarke v 56G 
 
 Hoare v 425 
 
 Sparling v 543 
 
 ■ Stanes v 465 
 
 ■ • Watson f 163 
 
 Parkes v. Smith 309 
 
 Parkin v. Carruthers 496 
 
 Parkinson, Ames r 329 
 
 Parkside Mining Co., Smith v. 308 
 Parnell, Re, Ex parte Ball . . 190 
 
 Parnham v. Hurst 171 
 
 Parrott, Alger v 434 
 
 Etherington v 608 
 
 Parry, Barrett v 313 
 
 Parsons, Bank of England v. 339 
 
 ■ Harms r 139 
 
 Partington, Andrews 1' 448 
 
 Parton r. Crofts 52 
 
 Partridge, Wheldale v 455 
 
 Pass, Poole v 466 
 
 Patch, Channon v 22 
 
 Patent Derrick Co., Thames 
 
 Ironworks Co. v 36 
 
 Patent Lionite Co., Thomas «>.. 363 
 
 Paton V. Sheppard 429 
 
 Patterson r. Gaslight and Coke 
 
 Co 379 
 
 Pattinson v. Luckley 136 
 
 Paul V. Children 546 
 
 ■ V. Paul 473 
 
 Pawle V. Gunn 113, 332 
 
 Pawlett (Lord William), Ex 
 
 parte 451 
 
 Paxton, Cholmeley v 22 
 
 r. Popham 13G 
 
 Payne, Ex parte, Ee Cross . , 209 
 
 V. Deakle 313 
 
 See also Home-Payne. 
 
 Paynter, Adams v 460 
 
 • • Harrison v 172 
 
 Peacock, Berriman v 22 
 
 . Hunt r 636 
 
 . V. Rhodes , . . 622 
 
 Peake, Ex parte 492 
 
 Pearce, Ex parte, Re Williams 78 
 Rolls V 511 
 
 PAGE 
 
 Pearly v. Smith 429 
 
 Pearse v. Jackson 370 
 
 Pearson v. Dawson 40, 51 
 
 Foster v 623 
 
 • Ereeland v 548 
 
 V. Pearson .... 422, Ixii 
 
 Peck, Dawes v 51, 55 
 
 Pedder's Settlement trusts, Re 469 
 
 Pedley v. Goddard 318 
 
 Hasluck V 432 
 
 Peel, Cockbum v 452 
 
 1\ Tatlock 170 
 
 Peer v. Humphrey 623 
 
 Peering, Eord v 13 
 
 Pellas V. Neptune Marine In- 
 surance Co 302 
 
 PeUy V. Wathen 38 
 
 Pemberton, Ex parte 37 
 
 V. Vaughan 139 
 
 Wortham r 576 
 
 Pendlebury v. Walker 169, 195 
 
 Pennell v. Reynolds 208 
 
 Pennistone, Waterfall v 65 
 
 Penny -!'. lunes 131 
 
 r. Penny 528,531 
 
 Penoyre, Wood v 534 
 
 Penton, Da^-ies v 110 
 
 Pcnwarden v. Roberts 71 
 
 Percy, Re 432 
 
 Perigal, Myers v 543 
 
 Perkins v. Bradley 59 
 
 Groves v 577 
 
 Walker v 137 
 
 Perrin v. Lyon 565 
 
 Perry, Creed v 580 
 
 V. Jenkins 633 
 
 1'. Truefitt 413 
 
 Perry's Executors vJYhc O.ueen 548 
 
 Petch V. Tutin 41 
 
 Peter v. Compton 120 
 
 V. Rich 169 
 
 Peterborough (Bishop of), 
 
 Boyle V 440 
 
 Pctre V. Espinasse 473 
 
 Petrie v. Buiy 480 
 
 Pettit's trusts, Re 270 
 
 Pettitt, Thompson v 48 
 
 Petty V. Anderson 609 
 
 Mcntuey v 559 
 
 V. Styward 484 
 
 Pfleger v. BroTS-ne 176, 195 
 
 Phelp V. Amcotts 471 
 
 Philanthropic Society v. Kemp 545 
 
 Philips V. Robinson 11 
 
 Phillips V. Foxall 170 
 
 V. Homfray 103 
 
 r. Mullings 474 
 
 Norman v 51
 
 xlvi 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Phillips V. PhillipB 484, 486 
 
 Swann v 124, G38 
 
 Phillipson v. Gatty 4r)0 
 
 • V. Haytcr GOO, Ixiii 
 
 Philpot V. Briant 170 
 
 Philpott, Ex parte 179 
 
 V. St. George's Hos- 
 pital 545 
 
 Phipps, Holford r 466 
 
 Pickering r. Appleby 332 
 
 V. Busk 626 
 
 V. Dowson 627 
 
 V. Ilfracombe E. Co. 337 
 
 • Pocock V 151 
 
 Pickford, Aspinall v 37 
 
 Picton, Mortimer v 452 
 
 • Shaw V 177 
 
 Pidding v. How 413 
 
 Pidgley r. Eawling 22 
 
 Pierce v. Thornley 579 
 
 Piercy r. Yoimg 305, 309 
 
 Pierson v. Garnet 441 
 
 Piggott, Clancy r 119 
 
 Wilson V 439, 440 
 
 Pigot V. Cubley 33, 35 
 
 Pigot's case 136 
 
 Pilck, Shower v 44 
 
 Pilkington, Smith v 370 
 
 Pimbley, Fisher v 316 
 
 Pinchon's case 158 
 
 Pinke, Hinton v 539 
 
 Pinkney v. Hall 502 
 
 Pinney r. Hunt 553 
 
 Piper, Cradock v 465 
 
 Pitt, Higgins v 195 
 
 Pixell, Caldow v 104 
 
 Plaice, Russell v 528 
 
 Plaskynaston Tube Co., Re.. 355 
 
 Piatt V. Eouth 525 
 
 Plimpton v. Malcolmson .... 381 
 
 • V. Spiller 379 
 
 Plummer, Ex parte 250 
 
 In re 492 
 
 Bulteel V 439 
 
 Plymouth (Earl of), Eidout r. 573 
 
 Pocock, Brown r 586 
 
 ■ V. Pickering 151 
 
 Eobertst; 540 
 
 Pole V. Harrobin 136 
 
 Pollock r. Pollock 432 
 
 Ponsonby r. Ponsoiiby Ixiii 
 
 Pontida, The Ix 
 
 Poole's Estate, Ee 589 
 
 Poole V. Adams 302 
 
 . Crofton V 270 
 
 V. Pass . . , , , 466 
 
 Pooley V. Driver,... 495, 497, 498, 
 
 499, 500, 502 
 
 PAGE 
 
 Pope, Freeman v 472 
 
 Eusden v 93, 96 
 
 Seagrave v 370 
 
 Popham, Paxton v 136 
 
 Poppleton, Everard r 151 
 
 Popplewell,Ex parte. Re Storey 
 
 69, 71 
 
 Porter, Sprye v. , , 140 
 
 Watts r 337 
 
 Whitehead v 182 
 
 Portland (Dukeof), Topham v. 442 
 
 Pott V. Brysey 470 
 
 Credit Co. r 69 
 
 r. Eyton 498,499 
 
 Potter, Hall v 566 
 
 Ivirby r 539 
 
 • ■('.Nicholson 151 
 
 Potts, Nicholson r 182 
 
 Powe, Shafto «• 153 
 
 Powell r. Hellicar 512 
 
 V. Lloyd 179 
 
 V. Merrett 561 
 
 V. Eees 103 
 
 Power V. Barham 627 
 
 Powles V. Innes 302, 303 
 
 V. Page 503, 639 
 
 Pownal, Hoist v 55 
 
 Prance r. Simpson 116 
 
 Pratt V. Harvey 544 
 
 Prentice, Boulton v 610 
 
 Prescot, Snee v 54 
 
 Prescott V. Boucher 576 
 
 Holmes r 435 
 
 Hopkins v 138 
 
 Presland, Miles v 337 
 
 Preston, Castellaint- 301, 302 
 
 - — ■ — V. Melville 428 
 
 ■ ■ Eayner v 302, 303 
 
 Prestwood, Durant v 559 
 
 Price r. Anderson 428 
 
 v. Barker 490 
 
 V. Green 109 
 
 Green r 138,139 
 
 Han-ingtou v 11 
 
 Hewitt V 365 
 
 Hydet- 167 
 
 Lordr 31, 39 
 
 Prosser r 370 
 
 V. Eichardson 119 
 
 Pride v. Fooks 329, 466 
 
 Prideaux v. Lonsdale 583 
 
 Prieaux, Lee v 584 
 
 Pring V. Pring , . . , 549 
 
 Prior V. Hembrow 312 
 
 Pritchard r. Arbouin 544 
 
 Lodge V 492 
 
 Shawi- 140 
 
 Proctor V. Sergeant 139
 
 INDEX TO CASES CITED. 
 
 xlvii 
 
 PAGE 
 
 Prole V. Soady -579 
 
 Prosser v. Price 370 
 
 Proudley r. Fielder 584 
 
 Prout, Wilder r 470, 5G7 
 
 Piyor i>. Pryor 442 
 
 Pug-h V. Arton 16 
 
 V. Stringfield 483 
 
 V. Taylor 583 
 
 Pulham, Firmin r 466 
 
 Pullcn v. Purbecke 83 
 
 Pulsford, Re 495, 490 
 
 Pumfrey, Re 262 
 
 Punnott, Ex parte, re Kitchin 255 
 
 Purbecke, Pullen v 83 
 
 Purdew r. Jackson 579 
 
 Pj-e, Midland Railway Co. v. 017 
 
 Ridout V 315 
 
 Pym v. Great Northern Rail- 
 way Co 101 
 
 Sweet V 39 
 
 Q. 
 
 Quartemiaine v. Bittleston . , 86 
 
 Queen, The, Feather v 383 
 
 V. Mill 390 
 
 • r.The Lords of the 
 
 Treasury .... 429 
 
 ■ Perry 'sExecutorsr. 548 
 
 V. Read 28 
 
 • Tynte v 59 
 
 V. Whitmarsh .... 345 
 
 See also Resriaa. 
 
 R. 
 
 Race, Miller r 622 
 
 Rachfield v. Careless 549 
 
 Radbiu-n v. Jervis 326 
 
 Radchffe, Re 529 
 
 Ralph, Bird r 104 
 
 Ralston v. Smith 390 
 
 Ram, Ex parte G3G 
 
 Ramsbottom, Harcourt r 315 
 
 Hooper v 13 
 
 Ramsden v. Brearley G 1 7 
 
 ■ V. Smith 470 
 
 Randall v. Randall 484 
 
 V. Russell 426 
 
 Randell r. Thompson .... 305, 310 
 
 Rankin, Holdcruess r 85 
 
 ■ V. Weguelin 511 
 
 Rann v. Hughes 112 
 
 Rannie v. Irvine 139, 422 
 
 Ransorae r. Burgess 448 
 
 PAGE 
 
 Ravenshaw v. Hollicr 474 
 
 Rawling, Pidgley r 22 
 
 Rawlings, Re 183 
 
 r. Jennings 328 
 
 Rawlinson, Williams v 177 
 
 Rawson v. Johnston 53 
 
 Rawsthorn t\ Arnold 319 
 
 Raylton, Johnson r 628 
 
 Rayner v. Preston 302, 303 
 
 Read v. Bailey 492 
 
 Beldiug V 42 
 
 The Queen v 28 
 
 Reader v. Kiugham 120 
 
 Reay, Cookson r 45G 
 
 ■ r. Richardson 176 
 
 Redfern, Livesay r 540 
 
 Reed, Re 86 
 
 Re, Ex parte Brown .... 65 
 
 r. Wilmot 61 
 
 Rees, Jolly ^' 608, 609 
 
 r. Keith 578 
 
 Powell V 103 
 
 Reeve, Beaumont v 115 
 
 r. Whitmore 42 
 
 Reeves v. Barlow 42, 43, lix 
 
 Regina v. Carnatic Railway 
 
 Co 590 
 
 V. Londonderry and 
 
 Coleraine Railway Co. 343 
 
 Tynte v 59 
 
 V. Whitmarsh 345 
 
 r. Wilson 200 
 
 Sec also Queen, The. 
 
 Reid, Donellan r 121 
 
 -v. Fryatt 314 
 
 V. Hollingshead 502 
 
 V. Teakle 008 
 
 West V 639 
 
 Reilly v. Jones 109 
 
 • Lockhart r 169 
 
 Reindell r. Schell 110 
 
 Randall, King r 183 
 
 Reneaux r. Teakle 609 
 
 Renuoldson, Morlcy r. . . 565, 5G6 
 
 Revill, Nicholson r 170, 490 
 
 Rex V. Bardell 310 
 
 V . Collector of Customs.. 483 
 
 V. Grcenhill 614 
 
 V. Hill 314 
 
 V. Nethei'seal 517 
 
 V. Sankey 38 
 
 V. Sherrington , 613 
 
 Rcynell r. Lewis 504 
 
 Reynish v. Martin 566 
 
 Reynolds, Bodley v 56 
 
 V. Bowley 495 
 
 V. Hall 85 
 
 Pennell v 208
 
 xlviii 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Eejmolds, Robinson v 133 
 
 Rhodes v. Airedale Drainage 
 
 Commissioners.. 309,317 
 
 Howard v. . . 4G0, 4G3, 466 
 
 Peacock v 622 
 
 i\ Smethurst 634 
 
 Rhys, Lacy v 400 
 
 Ricer. Shutc 491 
 
 Weall r 642 
 
 Rich, Peter I' 169 
 
 Richards r. Delbridge .... 44, 45 
 
 V. Heather .... 488, 491 
 
 V. James 64 
 
 V. Richards 575 
 
 ~— Wilding V 475 
 
 Richardson, Ex parte 496 
 
 v. Bank of England 344 
 
 v. Brown 627 
 
 . r, Gilbert 399 
 
 • V. Greece 541 
 
 Grice ■;' 53 
 
 ■ ?'. Horton 488 
 
 ■ Hume V 452 
 
 v. Jenkins 158 
 
 • Leslie v 314 
 
 «'. Nourse 316 
 
 Price V 119 
 
 Reay t' 176 
 
 Warwick v 487 
 
 Riches, In re 502 
 
 Ricketts, Griffith v 455, 474 
 
 . ■ V. Loftus 440 
 
 Rickman v. Morgan 542 
 
 Ridgway v. Clare 492 
 
 Ridier, Re 472 
 
 Ridley v. Ridley 121 
 
 Ridout V. Earl of Plymouth. . 573 
 
 t'. Pain 316,317 
 
 V. Pye 315 
 
 Rigby, Re 153 
 
 Jennings «' 153 
 
 Rigg V. Earl of Lonsdale 28 
 
 Right d. Compton v. Comjitou 566 
 
 Ripley r. Waterworth 339 
 
 Rishton v. Cobb 565 
 
 Robarts, Goodwin v 622 
 
 Roberts, In re 16, 110 
 
 Bramah v 503 
 
 Cave V 561 
 
 Penwarden v 71 
 
 • V. Pocock 540 
 
 V. Spicer 585 
 
 V. Walker 59 
 
 i'. Wyatt 31 
 
 Robertson, Dimsdale v 313 
 
 ■ Holste V 381 
 
 MacdougaU v. . . 312, 
 
 313 
 
 PAGE 
 
 Robertson, South- Western Loan 
 
 and Discount Co. v 338 
 
 Robins, Re, Ex parte Russell 190 
 
 Robinson, Barnes v 576 
 
 Brandon v 586 
 
 Crow V 337 
 
 • Cusack V 50 
 
 V. Geldard 545 
 
 V. Ommanney 254 
 
 Phillips (• 11 
 
 r. Reynolds 133 
 
 r. Robinson . . 329, 450 
 
 Shearman r 496 
 
 r. Trevor 370 
 
 — V. Wheelwright .... 586 
 
 Roddam v. Morley 631 
 
 Rodocanachi, Burnand v. .... 302 
 
 Rodway, Sandars v 612 
 
 Roe, Nichols I' 317, 318 
 
 Roger V. The Comptoir d'Es- 
 
 compte de Paris 54, 55 
 
 Rogers, Ex parte Ix 
 
 Re, Ex parte Challinor 69 
 
 Abbott V 346 
 
 V. Acaster 580 
 
 Chaplain v 45 
 
 V. Kennay 32 
 
 Rogers's Trusts, Re 430 
 
 Rolle, Ryall r 62 
 
 Rolls V. Isaacs Ixii 
 
 V. Pearce 511 
 
 Rolphe, Ex parte, Re Spindler 69 
 Roper, Re, Ex parte BoUand 69, 71 
 
 ■?'. Roper 541 
 
 Roscorla v. Thomas 627 
 
 Rose, Leicester v 195 
 
 V. Rose 612 
 
 Rosewarne, Nichols v 373 
 
 Rosier, Shackle v 113 
 
 Ross V. Adcock 105 
 
 Bateman v 613 
 
 Geake v 167 
 
 Ross's Trust 558, 586 
 
 Rosser, Evans v 566 
 
 Rossiter, Britain v 120 
 
 • Hooper v 428 
 
 Lewis V 316 
 
 Rouch V. Great Western Rail. 
 
 Co 258 
 
 Round, Addison v 31 
 
 Roundell v. Breary 471 
 
 Rouse, Re 310 
 
 Rousillon V. Rousillon 139 
 
 Routh, Piatt r 525 
 
 Routledge v. Dorrd .... 441, 443 
 
 t'. Grant 122 
 
 Low V 401 
 
 Rowland, Clegg v 535
 
 INDEX TO CASES CITED. 
 
 •gllY 
 
 PAGE 
 
 Rowland v. Crankshaw 495 
 
 Rowlands, Cope v 137 
 
 Rowlandson, Ex parte 498 
 
 Rowles, Ryall v 45, C2 
 
 Royal Exchange Assurance 
 
 Co., Elliott v 305 
 
 Royal Exchange Corporation, 
 
 Collingridge v 301 
 
 Royal Mail Co., European 
 
 Co. V 93 
 
 RuddelU'. Dobree 612 
 
 Rudge V. Wiunall 20 
 
 Ruding, Sjjalding v 54 
 
 Ruffles V. Alston 613 
 
 Ruraball v. Metropolitan Bank 622 
 
 Rumney, Lewis v 634 
 
 Rusden v. Pope 93, 96 
 
 Rushforth v. Hadfield 37 
 
 Russell, Ex parte, Re Butter- 
 worth 262, 472 
 
 Ex parte, Re Robins. . 190 
 
 Douglas V 96 
 
 Huntley V 105 
 
 V. Ledsam 377 
 
 Lyde v 16 
 
 • Macnaught v 183 
 
 March v 534 
 
 V. Plaice 528 
 
 Randall v 426 
 
 V. Smith 400 
 
 Rutland, Duke of, v. Duchess 
 
 of Rutland 559 
 
 Ryall V. Rolle 62 
 
 V. Rowles 45, 62 
 
 S. 
 
 Saddlers' Company v. Badcock 301 
 
 Sadler, Bain v 516 
 
 St. George's Hospital, Phil- 
 pott V 545 
 
 St. John, Lord, v. Boughton 030 
 
 • V. St. John, 
 
 Lady 613 
 
 St. John Baptist College, Ox- 
 ford, Ex parte 453 
 
 St. John, Duke of Marl- 
 borough V 105 
 
 Sainter v. Ferguson 109 
 
 Salkeld, In ro 321 
 
 Saloon Omnibus Co., Hale v. 83 
 
 Salt, Andrews v 613 
 
 Stead V 502 
 
 Salter, Crawcour v 86 
 
 Samon's case 315 
 
 Sampson, Baker v 611 
 
 Samuda, Z winger v 46 
 
 Samuel v. Duke 023 
 
 w.v.v. 
 
 PAGE 
 
 Samuel v. Howarth 170 
 
 Sandeman v. Mackenzie 441 
 
 Sanders, Bloxam v 53, 56 
 
 V. Maclean 46 
 
 t'. Rodway 612 
 
 Sanderson v. Bell 36 
 
 Sandwich, Lord, Case of .... 442 
 
 Sandys, Warburton V 460 
 
 Sanger v. Sanger 592 
 
 Sankey, Rex v 38 
 
 Sargent, Higgins v. 167 
 
 Saunders, Do Mautort v 491 
 
 Tollit V 321 
 
 V. Topp 60 
 
 V.Wakefield 119 
 
 Saunderson, Wright v 507 
 
 Savage, Browne v 638 
 
 Savill V. Barchard 37 
 
 Saville Street Foundry Engi- 
 neering Co., Marsden v. 381, 382 
 
 Sawyer, Whitten v 577 
 
 Sayers, Horton v 304 
 
 Scales V. Maude 45 
 
 Scarboroiigh Cliff Hotel Com- 
 pany, Hutton V. 358 
 
 V. Borman 585, 586 
 
 Scarf v. Jardine 496 
 
 Scarlett v. Hanson 84 
 
 ScarpelUni v. Atcheson 575 
 
 Scattergood v. Sylvester .... 624 
 
 Schell, Reindel v 110 
 
 Schmitz, Ex parte Ix 
 
 Scholefield v. Spooner 470 
 
 Schot'smans v. Lancashire and 
 Yorkshire Railway Company 56 
 
 Schwabe, Clift v 295 
 
 Scipio, Numes v 332 
 
 Scott V. Avery 305 
 
 Champernown v 38 
 
 V. Corporation of Liver- 
 pool 305 
 
 Driver v 466 
 
 Drury v 470 
 
 Evans v 445 
 
 V. Jones 635 
 
 V. Lord Hastings ...... 337 
 
 Manby v 582, 608, 611 
 
 Mather v 545 
 
 V. Spashett 577, 578 
 
 — V. Van Sandau 310, 315 
 
 Scottish Union, &c., Simpson v. 301 
 Scratton, Le Vasseur v. . . 567, 579 
 
 Seagrave v. Pope 370 
 
 Seal V. Claridge 71 
 
 Sebright, Baker v 22 
 
 Sedgwick, Martin v 503, 639 
 
 Seed V. Higgins 390 
 
 Selby v. Selijy 121
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Self, Fleming v 370 
 
 Sergeant, Proctor v 139 
 
 Seton, Clarke r 161 
 
 Sewell, Burdick v. . AG, 96, lix, Ix 
 
 Sti'jkncy v 450 
 
 Shackell v. Rosier 113 
 
 Shaftesbury, Earl of, Lewers v. 98 
 
 Shafto ('. Powe 153 
 
 Shalmer, Spalding v 457 
 
 Sharman v. Brand 52 
 
 Sharp, Bulleu v 497, 500 
 
 — — -«'. Lush 528,531 
 
 Sharpe v. Birch 71 
 
 Shaw, Badger v 62, 65 
 
 • V. Benson 352 
 
 • Hodgson V 168 
 
 V. Picton 177 
 
 V. Pritchard 140 
 
 Shearman v. Pobinson 496 
 
 Shee, Clarke r 623 
 
 Littlefieldf 115 
 
 Sheen, Ex parte. Re Win- 
 
 stanley 208 
 
 Shelley, Gill v 546 
 
 Shepherd, Cooper v. ........ 50 
 
 V. Kain 627 
 
 ■ Zachary v 318 
 
 Shepherdson, Monkman v. . . 115 
 
 Shepley v. Davis 49 
 
 Sheppard v. Duke 629 
 
 Paton V 429 
 
 Sherrard v. Shen-ard 429 
 
 Sherrington, Rex v 613 
 
 V. Yates 574 
 
 Sherry, Re 177 
 
 ■ Newton r 535 
 
 Sherson, Bothamby v 539 
 
 Shei'wood, In re 465 
 
 Shewen v. Vanderhorst 634 
 
 Shiers, In re 191 
 
 Shiffner, Man v 37 
 
 Shilling V. Accidental Death 
 
 Insurance Co 295 
 
 Shipbrook, Lord z'. Lord Hinch- 
 
 inbrook 466 
 
 Sbipinan, Bush r 195 
 
 Shore, Lady, r. Billingsley . . 481 
 
 Shorrock, Boj'd r 65 
 
 Shower v. Pilck 44 
 
 Shute, Rice?' 491 
 
 Shuttlewoi-th v. Greaves .... 539 
 
 Wiggr 137 
 
 Sibree v. Tripp 176 
 
 Sidwell r. Mason 1 1 G 
 
 Siegert v. Findlater 419, 420 
 
 Silk, Jervoise r 448 
 
 i\ Osborne 270 
 
 Simmonds v. Palles 475 
 
 PAGE 
 
 Simmons, Farebrother v 52 
 
 V. Gutteridgo 515 
 
 Simond v. Hibbert 37 
 
 Simonds v. Hodgson 303 
 
 Simpson, Cowell v 37, 39 
 
 Garrod v 182 
 
 r. Ingram 177 
 
 Moseley v 308 
 
 «». Scottish Union, &c. 301 
 
 Thompson v 442 
 
 Sims V. Thomas 472, 632 
 
 Sinclair, Re Ix 
 
 V. Jackson 632 
 
 Sing V. Leslie 441 
 
 Singer Manufacturing Co. v. 
 
 Loog.. 413, 414, 419, 420 
 
 V. Wilson . .413, 414, 420 
 
 Sinnett v. Herbert 545 
 
 Skarf V. Soidbv 472 
 
 Skeen, Hogg r 502 
 
 Skey V. Barnes 446 
 
 Skillem, Amies v 481 
 
 Skinner, Braithwaite v 6 
 
 V. Upshaw 35 
 
 Skip, "West 'V 45 
 
 Slatter v. Slatter 013 
 
 Sleech v. Thorington 539 
 
 Slingsby's case 480, 483 
 
 Sloane v. Packman 140 
 
 Smailes v. Wright 320 
 
 Small, Churchill v 13 
 
 ■ • Jeffereys v 483 
 
 Smallpeice, Irons v 44 
 
 Smarte v. Edsun 488 
 
 Smethurst, Rhodes v 634 
 
 Smith, Re 182 
 
 Allen V 36 
 
 V. Anderson 352 
 
 Antrobus v 45 
 
 'V. Bond 101 
 
 V. Bruning 567 
 
 V. Cannon 209 
 
 Carpenter v 379 
 
 V. Chichester 38 
 
 V. Clark 130 
 
 Farmer v 370 
 
 Fox V 316 
 
 Grace v 497 
 
 Green v 498 
 
 i\ Hudson 50, 55 
 
 ■ ■ r. Hurst 474 
 
 Hutchings v 679 
 
 V. Jarvis 502 
 
 V. Keating 474 
 
 • Lawrences 138 
 
 r. Lucas 470, 567 
 
 • M'Ewan v 46 
 
 Martindale r 48
 
 INDEX TO CASES CITEU. 
 
 K 
 
 PAGE 
 
 Smith V, Matthews 57(5 
 
 ■ V. Millidge 54G 
 
 Needham v 471 
 
 r. Nicolls 1-53 
 
 • V. Oliver 514 
 
 ■ Parkes v 309 
 
 V. Parkside Mining Co. 308 
 
 • Pearly v 429 
 
 v. Pilkiugton 370 
 
 Ealstou r 390 
 
 ■ Ramsdeu v 470 
 
 • Eussell V 400 
 
 ■ V. Smith. , 535, 038 
 
 ■ V. Timms 209 
 
 Vernon v 301 
 
 ■ Wadsworth v , 309 
 
 Wallisj' 109, 110, 111 
 
 Walter v 34 
 
 i). Whitmore 319 
 
 ■ Whitmore f 315 
 
 • Williams r G23 
 
 ■ Young V 470 
 
 Smithard, Coruf orth v 117 
 
 Smyth, Howliston r GIO 
 
 Willson V 617 
 
 Snee v. Prescot 54 
 
 Sneezum, In re, Ex parte 
 
 Davis 254 
 
 Snellgrove v. Baily 511 
 
 Snow, Goddard v 583 
 
 Wilbraham v 31 
 
 Snowdon, Ex parte 1G9 
 
 Soady, Prole v 579 
 
 Soane, Condiiitt v 426 
 
 Societe Generalc de Paris v. 
 
 Geen 192 
 
 Sellers v. Lawrence 104 
 
 Soloman v. Graham (j\) 
 
 Somerville, Hotham v 13 
 
 Somes, British Empire Ship- 
 ping Co. V 36 
 
 Sophia Cook, The 303 
 
 Sothern, Swanwick v 49 
 
 Souch V. Strawbridgc 121 
 
 Soulby, Skarf v 472 
 
 Soutar's Policy Trusts, Ke. 299,300 
 South Carolina Bank v. Case. . 502 
 South Western Loan and Dis- 
 count Co. ■y. Eobertson .... 338 
 
 Soutten, Deare v 610 
 
 Sowray, Lingcn r 456 
 
 Spackman r. Miller 62 
 
 Spalding, Alsager v 195 
 
 ■ v. Ruding 54 
 
 V. Shalmer 457 
 
 Sparkes, Hiiiton v Ill 
 
 Sparling v. Parker 543 
 
 Sparrow, Ex. parte 02 
 
 PAGE 
 Sparrow, Farmer v. ........ 370 
 
 V.Paris 109 
 
 Spashett, Scott v 577, 578 
 
 Speight, Ke, Speight v. Gaunt 467 
 
 Spencer, Hill v 137 
 
 V. Sjaencer 44 1 
 
 Spettigue, AVhite v G23, 624 
 
 Spicer, Roberts v 585 
 
 Spiers, Thompson v 637, 639 
 
 Spillcr, Chapman v 627 
 
 Plimpton v.. 379 
 
 Spindler, Re, Ex parte Rolphe 69 
 
 Spirett V. Willows , .... 576 
 
 Spooner, Scholefield r 470 
 
 Vandenberg v 52 
 
 Spraguo, Ex parte 495 
 
 Sprigens v. Nash 321 
 
 Sprye v. Porter 140 
 
 Squire v. Mayor 19 
 
 • V. Whitton 170 
 
 Stafford, Earl of, «'.Buckley.326, 327 
 
 Stahlschmidt v. Lett 634 
 
 Stainbank, Davies v 170 
 
 Staiuton, Maclaren v 428 
 
 Stallwood, Tharpe v 553 
 
 Stal worth r. Inns 315 
 
 Stamford, Heard v 582 
 
 Stamper v. Barker 613 
 
 Stanes v. Parker 465 
 
 Staniland v. Willott 512 
 
 Stanley v. Bernes 509 
 
 Stannard, Angier v 466 
 
 V. Harrison 404 
 
 ■ V. Lee 404 
 
 Stansfeld v. Cubitt 62, 65 
 
 Stanton r. Hall 578 
 
 Webbr 174 
 
 Stapleton «\ Haymcn 90 
 
 Statham, Adam r 316 
 
 Stead, Barker v 504 
 
 Butcher v 263 
 
 V, Salt 503 
 
 Steadman i\ Hockley 38 
 
 Stcar, Johnson v 35 
 
 Steel V. Dixon 169 
 
 Steele, Swan v 502 
 
 Steer, Conelly v 72 
 
 Steinkeller, Devaux v 124 
 
 Steinmitz v. Halthin 577 
 
 Stephens, Ex parte 16, 417 
 
 Edgeberry v 381 
 
 Hart V 575 
 
 V. Olive 612 
 
 Sterling, Ex parte 37 
 
 Stevens, Re, Ex parte Mc- 
 
 Gcorge 201 
 
 Stevenson v. Blakelock 37 
 
 V. McLean 122 
 
 d2
 
 Hi 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Stevenson, Toft v 032 
 
 Steward v. Greaves 345 
 
 Stewart, Hitchman v 169 
 
 Leylaud ■!' 402 
 
 ■ ' Mackiuuon v 474 
 
 Stickney v. Sewell 450 
 
 Stiff, Cassell v 407 
 
 Stockdale v. Oawhyn 138 
 
 Stocken v. Stocken 448 
 
 Stocker f. Brockelbank 499 
 
 Stokes, Brice v 4G6 
 
 • V. Holdeu 60 
 
 V.Moor 121 
 
 Stone, Ex parte. In re Welch . . 494 
 
 V. Marsh 502, 624 
 
 Stones V. Cooke 616 
 
 Stonor's Trusts, Re , 470 
 
 Storey, Re, Ex parte Popple - 
 
 well 69, 71 
 
 Storie, Long v 140 
 
 Stott V. Milne 466 
 
 Stoughton, Medina v 627 
 
 Stoveld V. Hughes 45 
 
 Strafford, Lord, Byng v 432 
 
 Strang, Berndtson v 55 
 
 Strathinore, Countess of, v. 
 
 Bowes 583 
 
 Stratton v. Grymes 566 
 
 Strawbridge, Souch v 121 
 
 Stray, Ex parte 179, 195 
 
 Streatfield v. Halliday 489 
 
 Stretton, Nicholls v 138, 139 
 
 Stringer, Melville v 77, lix 
 
 Stringfield, Pugh v 483 
 
 Strode r. Blackbume 13 
 
 Strong, Duntou v 314 
 
 Strousberg, RepubKc of Costa 
 
 Rica V 173 
 
 Strutt, Deeks v 6 
 
 Galsworthy v 109 
 
 Stuart V. Biirrowes 518 
 
 Grey v 470 
 
 Stubbing, Ex parte. Re Wilk- 
 inson 201 
 
 Stubbs, Hughes v 474 
 
 Studdy, Churchward v 28 
 
 Sturgeon, Bui-ton v 620 
 
 Sturgis V. Champneys 576 
 
 Welchman v 553 
 
 Styles V. Guy 466 
 
 Styward, Petty v 484 
 
 Suche : see Joseph Suche & Co. 
 
 Summers v. City Bank 591 
 
 Sumner, Gambart v 404 
 
 ■ Johnston iJ 610,611 
 
 Sunbolf v. Alford 35 
 
 Sutton V. Buck 34 
 
 V. Eunis 429 
 
 PAGB 
 
 Sutton, Fitch «; 176 
 
 V. Sutton 630 
 
 Swallow V. Binns 445 
 
 Swan V. Steele 502 
 
 Swann, Joyce v 49 
 
 V. Phillips 124, 638 
 
 Swans, The case of 23 
 
 Swan wick v. Sothern 49 
 
 Swayne v. Swayne 639 
 
 Sweet V. Benning 399 
 
 V. Pym 39 
 
 Sweetapple v. Horlock 470 
 
 Swift V. Jewsbury 124 
 
 V. Pannell 64, 75 
 
 V. Swift 614 
 
 V. Wenman 620 
 
 Swinburne, Craythorne v .... 169 
 
 Swindell, Cullwick v 15 
 
 Swinnerton, Heming v 309 
 
 Swinton, Willoughby v 162 
 
 Sworder, Castle v 51 
 
 Sylvester, Scatterwood v 624 
 
 Symes, Balch v 38 
 
 Symonds, Thompson v 404 
 
 • Williams v 639 
 
 Sympson, Prance v 116 
 
 Synge, Howe v 137 
 
 Taggart, Carter v 429, 578 
 
 Tamvaco v. Lucas 303 
 
 Tanner, Brown v 96 
 
 Tapfield r. Hillman 41 
 
 Tappenden v. Burgess 179 
 
 Tate V. Hilbert 511,512 
 
 Tatlock, Peel iJ 170 
 
 Tattersall, Kirkpatrick i; 116 
 
 Taunton v. Morris 577, 578 
 
 Wood V 322 
 
 Taylor, Ex parte, In re Grason 501 
 
 , In re Lacy. . Ix 
 
 In re 614 
 
 /'. Haygarth 561 
 
 Linley v 543 
 
 • V. Martindale 327 
 
 V. Meads 584 
 
 Miller r 398 
 
 V. Neville 400 
 
 V. Pugh 583 
 
 V. Taylor 558 
 
 Tetley v 183 
 
 V. Tumbull 338 
 
 Wall V 400 
 
 Wallis V 434 
 
 Waters v 304 
 
 Teakle, Reid v 608
 
 INDEX TO CASES CITED. 
 
 liii 
 
 PAOE 
 
 Teakle, Reneaux v COO 
 
 Tebbs v. Carpenter 328 
 
 Teesdale, Dickinson r Goo 
 
 Tempest, Ex parte 2G3 
 
 V. Tempest 54 ;5 
 
 Templeton v. Warring-ton .... 44 o 
 
 Tench, Lloyd r odd 
 
 Tenuant, Ex parte, Re Ho ward 
 
 497, 500 
 
 Terrell, Ex parte 190 
 
 Terry, London and County 
 
 Bank v 177 
 
 Tetley v. Taylor 183 
 
 Tew, In re 501 
 
 Teynham, Lord, v. AVebb. . . . 441 
 
 Thacker, Drury v 531 
 
 Thames Iron Works Co. v. 
 
 Patent Derrick Co 36 
 
 Tharpe v. Stallwood 553 
 
 Thatcher's Trusts, Re 447 
 
 Thellusou, Hobson r 82 
 
 Thomas v. Desangcs 258 
 
 V. Howell 543 
 
 James?; IGl 
 
 Owen V 122 
 
 V. Patent Lionite Co. . 363 
 
 Roscorla r 627 
 
 Sims r 472, 632 
 
 . V. Thomas 620 
 
 Thomiason r. Frere 485 
 
 Thompson v. Dominy 96 
 
 • J)utton V 474 
 
 Earrant v 20 
 
 r. Gardiner 52 
 
 V. Griffin 448 
 
 • V. Harvey 610 
 
 HilU- 381 
 
 Jackson v 288 
 
 V. Lacey 35 
 
 V. Lack 170, 490 
 
 Norman r 176, 194 
 
 V. Pcttitt 48 
 
 Randell v 305, 310 
 
 V. Simpson 442 
 
 V. Spiers 637, 639 
 
 ■ V. Syraonds 404 
 
 V. Thompson 543 
 
 Thompson's Trusts 60 
 
 Thomson v. Anderson 310 
 
 . May V 122 
 
 Thorington, Sloech r 539 
 
 Thorley's Cattle Food Co., 
 
 Massamt'. 419, 420 
 
 V. Massam . . 420 
 
 Thorneley, Pierce v 579 
 
 Thornton, Gillett r 305 
 
 Lunn r 42, 43 
 
 Thorold's Settled Estates, Re , 453 
 
 PAOE 
 
 Thorpe, Glynn v. 157 
 
 V. Jackson 492 
 
 "Williams v G37, 639 
 
 Throfall v. Borwick 35 
 
 Tlirclfall «.'. Wilson 514 
 
 Thurlow, Cunynghame v 442 
 
 Tibbett, Morton v 50 
 
 Tibbitts, Darrell v 301 
 
 Tidd r. Lister 576, 578 
 
 Tidswell v. Angcrstcin 296 
 
 Timms, Smith y. 209 
 
 Tipping r. Tipping 573 
 
 Todd, Brady v , . , Ixiii 
 
 Kirk r 103 
 
 ■ V. Wilson 465 
 
 Todhunter, Ex parte. In re 
 
 Norton 185 
 
 Toft v. Stephenson 632 
 
 ToUit r. Saunders 321 
 
 Tolson v. Dykes 292 
 
 Tomlin v. Mayor of Fordwich. 316 
 
 Tonnies, Re 262 
 
 Toomer, Re, Exp. Blaiberg. .64, 70 
 Topham v. Duke of Portland.. 442 
 
 Duncan v 122 
 
 Topp, Saunders v 50 
 
 Topping, Ex parte 492 
 
 Torquay Bath Co., Re . . 350, 361 
 
 Townroe, Wightman v 496 
 
 Townsend v. Martin 540 
 
 Townshend, Lord, f. Windham 573 
 
 Travers v. Travers 470 
 
 Treasury, Lords of the. The 
 
 Queen v 420 
 
 Tredwcll, Dawes r 4 70 
 
 Treharne, Baillie v 481 
 
 Trench, Re, Ex parte Brandon 201 
 Trethowau, In re. Ex parte 
 
 Tweedy 65 
 
 Trevor, Exparte,ReBurghardt 209 
 
 Robinson v 370 
 
 Trimmer v. Dauby 429 
 
 Tripp, Sibrec r 176 
 
 Trollope v. Linton 568 
 
 Trotter, Mackintosh r 15 
 
 Truefitt, Perry v 413 
 
 Trueman r. Fentou 116 
 
 Truman, Hams v 86 
 
 Trj^e T. Gloucester (Corpora- 
 tion of) 545 
 
 Tucker, In the goods of 519 
 
 Hayter v 543 
 
 V. Laiiig 1 70 
 
 Lyons r 72 
 
 Tucr v. Turner 581 
 
 Tugman v. Hopkins 58 t 
 
 TuUott V. Armstrong . . . .585, oSG 
 Tupper, Bamfield r 123
 
 liv 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Tui-ley I'. Bates 49 
 
 TurnbuU, Godfrey r 496 
 
 Taylor v 338 
 
 Turner, In re, Ex parte Att- 
 
 water Go 
 
 Chasemore v 117 
 
 V. Evans 422 
 
 V. Hancock 465 
 
 Kidson v 116 
 
 Liverpool Eorough 
 
 Bank v 92 
 
 Tuer V 581 
 
 V. Turner 326, 446 
 
 V. Vaughan 137 
 
 "Ward V 45 
 
 ■ Woodi' 512 
 
 Turquand v. Moss 183 
 
 Turton, Maberley v 448 
 
 Tussaud's Estate, Re 542 
 
 Tutin, Petch y 41 
 
 Tweedy, Ex parte 65 
 
 Twisden, Cleatker v 502 
 
 Twyman, Coope v 169 
 
 Twyne's case 61, 114 
 
 Tyler v. Jones 312 
 
 V. Lake 585 
 
 Tyndall, Attorney -General v.. 545 
 
 Tynte v. The Queen 59 
 
 Tyi-e, ■Williams v 365 
 
 U. 
 
 Union Bank of Manchester, 
 
 Ex parte, Ee Jackson . .86, 638 
 United Telephone Co. v. Har- 
 rison & Co 379 
 
 Upman v. Forester 413 
 
 Upshaw, Skinner r 35 
 
 Usbome, Jenkyns v 54 
 
 Usher, Davis v lix 
 
 V. 
 
 Vallance, He, Vallance r. Blag- 
 den Ix 
 
 Valpy, Dickinson v 503 
 
 Van v. Barnett 456 
 
 Van Castecl v. Booker 55 
 
 Vandenbcrg r. Palmer 45 
 
 Vandenbergh r. Spooner .... 52 
 
 Vandeputt, Wiseman v 54 
 
 Vanderhorst, She wen v 634 
 
 PAGE 
 
 Vandergucht v. De Blacquiere 616 
 Van Gheluive v. Nerinckx . . 153 
 
 Van Sandau, Scott v 310, 315 
 
 Vansittart v. Vansittart .... 613 
 
 Vaughan, Grant v 622 
 
 Jenkyn v 473 
 
 Pemberton V 139 
 
 Turners 137 
 
 "Walmsley v 440 
 
 Vawdry, Cartwright v 546 
 
 Vawser, Bi'own v 323 
 
 Veal V. Veal 511 
 
 Venables v. East India Co. . . 515 
 
 Vere v. Ashby 502 
 
 Verity, "Wilkinson v 629 
 
 Vernon, Davies v 12, 13, 37 
 
 • V. Smith 301 
 
 Vick, Edelston r 414 
 
 Viner v. Francis 548 
 
 Voisey, Ex parte, Ee Knight. 255 
 
 Von Hafen, Ee 493 
 
 Voss, Ee 587 
 
 Vulliamy v. Noble 496 
 
 W. 
 
 "W., H. V 612 
 
 Wackerbarth, Mollett V 136 
 
 WaddeU, Banco de Portugal v. 257 
 
 "Wade V. Dowling 315 
 
 "Wadsworth v. Smith 309 
 
 Wain V. Warlters 119 
 
 Wainewright, Barclay v 428 
 
 Wainsford, Warner v 554 
 
 Waite V. Jones 138 
 
 Jones V 612 
 
 Wakefield v. Brown 483 
 
 V. Newbon 38 
 
 Palmer v 582 
 
 Saunders v. ....... , 119 
 
 Wales, Leighton v 109, 139 
 
 Walford, Dyke v 551 
 
 Walker v. Bradford Old Bank Hx 
 
 Cheaviny 413 
 
 V. Giles 370 
 
 Levy V Ixii 
 
 • ■ V. Matthews 624 
 
 v. Milne 543, 544 
 
 V. Mottram 421, 422 
 
 Pendlebury v 169, 195 
 
 i\ Perkins 137 
 
 Eoberts v 59 
 
 Woodmeston v 586 
 
 Young V 317
 
 INDEX TO CASES CITED. 
 
 Iv 
 
 PAGE 
 
 Wall, Harris r 117 
 
 V. Taylor 400 
 
 Wallace v. Auldjo 577 
 
 V. Woodgato 3G 
 
 Wallis, Biniiingtou v 113, 137 
 
 V. Day 13!) 
 
 Fordham v 123 
 
 V. Hodson 559 
 
 Masou r 3U 
 
 V. Smith 109, 110, 
 
 111 
 
 V. Taylor 434 
 
 Walmesley v. Milno 15 
 
 Walmsley r. Vaughan 440 
 
 Wali-ond V. Walrond 613 
 
 Walsh, Galev 132 
 
 V. Wason 577 
 
 V. Wliitcomb 171 
 
 Walter v. Adcock 182 
 
 V. Plodge 511 
 
 . V. Howe 399, 409 
 
 V. Macdonald 130 
 
 V. Smith 34 
 
 Walter Idle's case 22 
 
 Walters, Bevan v 36 
 
 V. Walters 516 
 
 Walton, Ke, Ex parte Hudson 190, 
 
 195 
 
 Hitchman v 15, 19 
 
 V. Lavator 394, 485 
 
 Wane, Cumber v 176 
 
 Warburton v. Hill 337 
 
 • ■ — V. Sandys 460 
 
 Ward, Sainton v 436 
 
 v.Beck 90 
 
 V. Byi-ne 139 
 
 • V. Combe 428 
 
 • • V. Eyre 1()7 
 
 Merriman v 177 
 
 V. National Bank of New 
 
 Zealand 170 
 
 V. Turner 45 
 
 V. Yates 578 
 
 Warde, In re 453 
 
 Bristow V 440 
 
 Dudley v 19 
 
 Warden v. Ashburncr 429 
 
 Wardroper v. Cutlield 429 
 
 Wards (Court of), Mollwo, 
 
 March & Co. v 497, 498 
 
 Ware, Re, Ex parte Drake . . 56 
 
 Waring v. Lee 441 
 
 Warlters, Wain v 119 
 
 Warner and Powell's Ai-bitra- 
 
 tion, Ro 314 
 
 Mare r 195 
 
 V. Wainsford 554 
 
 Warrington, Temi^leton v. . . 445 
 
 PAGE 
 Warwick (Countess of), Ed- 
 wards v 430 
 
 ■ March v 183 
 
 • V. Richardson 48^ 
 
 Wason, Walsh v 577 
 
 Waterer v. Waterer 484 
 
 Waterfall v. Pennistono 65 
 
 AVatorhouse, Close r 37 
 
 Waterpark, Young v 438 
 
 Waters, Ex parte, Re Hoylo . 254 
 
 V. Taylor 304 
 
 Waterworth, Ripley v 339 
 
 Wathen, Pelly v 38 
 
 Watldns, Ex parte. In re Cous- 
 
 ton 86 
 
 Watmough's trusts. In re ... . 544 
 
 Watson, Ex parte 190, 498 
 
 ■ V. Birch 629 
 
 • V. Holliday 254 
 
 Jessopp V 558 
 
 Keightley v 483 
 
 r. Parker 163 
 
 • Willesford v 305 
 
 Watt V. Watt 584 
 
 Watts V. Girdlestone .... 329, 466 
 
 V. Jefferyes 337 
 
 V. Porter 337 
 
 Waugh V. Carver 495, 502 
 
 Edmund v 632 
 
 Way V. Bassett 492 
 
 Way's Settlement, Re 473 
 
 Weal V. Rice 542 
 
 Weatherby, Brown r 492 
 
 Webb v. Fox 270 
 
 V. Grace 566 
 
 r. Hewitt 170 
 
 V. Needham 552 
 
 r. Stanton 1 74 
 
 Teynham (Lord) r 441 
 
 Webb's Policy, Re 637 
 
 Webster, Ex parte, Re Morris 71 
 
 Ivinnaird v 177 
 
 r. Webster . . . .496, 613 
 
 Weguelin, Rankin v 511 
 
 Weightman, AVood v 535 
 
 Welch, In re 494 
 
 Welchman, In re 577 
 
 r. Sturgis 653 
 
 Weld, Graves «' 21 
 
 Weldon, Astley v 110 
 
 V. Dicks 401 
 
 r. Gould 37 
 
 r. Neal 600 
 
 V. Winslow 600, 605 
 
 Wclland, Balfour r 457 
 
 Wcllcsloy V. Beaufort (Duke of 614 
 
 Earl Cowley v 22 
 
 t'. Wellesley 471
 
 Ivi 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Wellington r. Mackintosh . . 304 
 
 Wells V. Abraham 624 
 
 r. Horton 121 
 
 Weumau, Swift v C20 
 
 Wonuall V. Aduey 115 
 
 Wenslcy, In the g-oods of .... 556 
 West Hartlepool Harbour and 
 
 Railway Co., Wilson v 343 
 
 West London Commercial 
 
 Bank v. Kitson 503 
 
 West V. Berney 44 1 
 
 Hebdon r 295 
 
 ■ V. Rcid 639 
 
 r. Skip 45 
 
 Westland, Wiseman v 13 
 
 Westmeath(Marquis of), Hind- 
 ley V 612 
 
 Westminster Brymbo Coal and 
 Coke Company, Limited, 
 
 Wheatley v 305 
 
 Weston, Foster i; 167 
 
 Westzinthus, Re 54 
 
 Wetherell v. Langston 483 
 
 V. Wilson 449 
 
 Wey and Arun Junction 
 
 Canal Co., Re 350 
 
 Whale V. Booth 629 
 
 Whalley, Carter v 496 
 
 Wlieatcroft, AUsopp v 139 
 
 V. Hickman 499 
 
 Wheatley v. Westminster 
 Brymbo Coal and Coke Co. 
 
 Limited 305 
 
 Wheeler, Bushell r 50 
 
 ■ Doe (/. Stace V 515 
 
 Palmer v 442 
 
 Wheelhouse v. Ladbrooke .... 162 
 Wheelwright, Robinson v. . . 586 
 
 Wheldale r. Partridge 455 
 
 Whinery, Minnit v 502 
 
 Whinman r. Kynman 123 
 
 Whitaker, Lea v 109, 1 1 1 
 
 Pain r 34 
 
 Whitcomb, Walsh v 171 
 
 White, Acton v 586 
 
 Blake v 170 
 
 ■ V. Grane 449 
 
 ■ ■ V. Spettigue 623, 634 
 
 Whitehead v. Porter 182 
 
 Whitheld v. Bewitt 22 
 
 Whitmarsh, Regina v 345 
 
 Whitmore, Reeve v 42 
 
 • r. Smith 315 
 
 Smith t' 319 
 
 Whittaker v. Howe 139 
 
 Whittem v. Sawj'er 577 
 
 Whittiugham, In re 617 
 
 Whittingstall v. Grover .... 492 
 
 PAGK 
 
 Whittle V. Henning 580 
 
 Matthews v 593 
 
 Whitton, Squire v 170 
 
 Whorwood, Cooke v 316 
 
 Wigg V. Shuttleworth 137 
 
 Wightman v. Townroe 496 
 
 Wilbraham v. Snow 31 
 
 Wilcox, Kruger v 39 
 
 Wilcoxon, Re 263 
 
 Wild, Re 65 
 
 «'. Clarkson 161 
 
 Wilder v. Prout 470, 567 
 
 Wilding V. Richards 475 
 
 Wildman v. Wildman 328 
 
 Wiles v. Gresham 454 
 
 Wilkins, Bristead v 338 
 
 V. Bromhead 49 
 
 Wilkinson, Ex parte. Re Berry 209 
 Re, Ex parte Stub- 
 bins 201 
 
 V. Adam 545, 546 
 
 V. Byers 176 
 
 V. Candlish 199 
 
 V. Evans 52 
 
 r. Gibson .... 618, 619 
 
 V. Henderson .... 492 
 
 ■— r. Verity 629 
 
 Wilkinson's estate. In re .... 453 
 
 Willesford r. Watson 305 
 
 Willet V. Chambers 502 
 
 Williams, Ex parte 190, 448 
 
 Re, Ex parte Pearce 78 
 
 V. Burgess 152 
 
 — Clarke v 182 
 
 Eads V 315 
 
 ■ r. Evans 15 
 
 Evans «; 153 
 
 Fourth City Mutual 
 
 Benefit Building 
 
 Society v 370 
 
 V. Frost 376 
 
 V. Hayward 370 
 
 V. Henshaw 481 
 
 V. Keats 496 
 
 r. Lake 120 
 
 Manders v 33 
 
 Mercier v 592 
 
 r. Moor 117 
 
 V. Rawlinson 177 
 
 V. Smith 623 
 
 V. Symonds ,...,... 639 
 
 V. Thorpe 637, 639 
 
 t\ Tyre 365 
 
 Williamson, Chamberlain v. . . 102 
 
 Willing r. Baine 481 
 
 WilHs V. Black 471 
 
 V. De Castro 490 
 
 V. Hiscox , , ...... 466
 
 INDEX TO CASES CITED. 
 
 Ivii 
 
 PAGE 
 
 Willock, Noblo v 583 
 
 Willomatt, Cooper v 35 
 
 Willott, Staniland v 512 
 
 Willoughby, Foljambe v 449 
 
 V. Swiuton 1(52 
 
 Willows, Spirott i' 576 
 
 "Wills, De Greuchy v 593 
 
 • Evaus V 155 
 
 V. Hacon 182 
 
 Willson V. Smyth 617 
 
 Wilmer r. Curry 488 
 
 Wilmot, Liddlow v 611 
 
 • Reed v 61 
 
 Wilmshui'st V. Bowker .... 55, 56 
 
 Wilson v. Brownsmith 540 
 
 V. Coxwell 516 
 
 1'. Ford 610 
 
 ■ i'. Hood 38 
 
 • Liverpool Marine Cre- 
 dit Co. V 96 
 
 Lucas r 318 
 
 ' V. Piggott 439, 440 
 
 Reg. V 200 
 
 Singer Manufacturing 
 
 Co. V 413, 414, 420 
 
 ThrelfaU v 514 
 
 Todd V 465 
 
 V. West Hartlepool 
 
 Harbour and Rail- 
 way Co 343 
 
 Wetherell v 449 
 
 t). Wilson .. 96, 466, 612,613 
 
 Wilton V. Colvin 469 
 
 Wiltshire, Doran v 457 
 
 Winan's Patent, Re 382 
 
 Wiuch i'. Koelcy 171 
 
 Winchelsea, Earl of, Deeriug v. 169 
 Winder, Ex parte. Re Win- 
 
 stanley 208 
 
 Windham, Townsliend, Lord 
 
 V 573 
 
 Windsor, Lincoln v 465 
 
 Wiudus, Re, Ex parte Hough 84 
 
 Hough V 83 
 
 Winehouse v. Winehouse. . 153, 517 
 Wingfield, Ex parte, Re Flo- 
 rence 63, 86 
 
 Winn v. lugilby 20 
 
 Winnall, Rudge v 20 
 
 Wiuslow, Weidon v 600, 605 
 
 Winstanley, Re 208 
 
 Winter v. Winter 44 
 
 Wisden, Page v 401 
 
 Wise V. Metcalf 104 
 
 Wiseman v. Vandeputt 54 
 
 r. Westland 13 
 
 Wishart i: Fowler 179 
 
 Witham, In the goods of .... 515 
 
 PAGE 
 
 Withcmsea Brickworks, Ro . . 363 
 
 Witt 1'. Amis 511 
 
 Eraser v 55 
 
 Wittmau I'. Oppenheim Ixii 
 
 Wulverham2)ton New Water- 
 works Co. r. Hawkesford . . 343 
 Wombwell v. Hanrott .... 439, 440 
 
 Wood, Ex parte 86 
 
 Re 179 
 
 V. Adcock 316 
 
 Besant v 612 
 
 Climie v 15 
 
 V. Dixie 83 
 
 Gomley v 465 
 
 V. Penoyre 534 
 
 V. Taunton 322 
 
 V. Turner 512 
 
 V. Weightman 535 
 
 t'. Wood 172 
 
 Woodall, Ex parte Ix 
 
 Woodgate, Acton v 474 
 
 Wallace v 36 
 
 Woodhead, Cresswick v 515 
 
 Woodman, Bowyer v 632 
 
 Woodmestou v. Walker 586 
 
 Woods ('. Foote 182 
 
 Woolfit, Cooper v 20 
 
 Woolley, Jacksun v 123, 490 
 
 WooUven, Breton v 45, 573 
 
 Worley, Holland v Ix 
 
 Worrall, Ditcham v 117 
 
 «'. Jacob 612 
 
 Worrell v. Johnson 38 
 
 Wortham v. Pemberton 576 
 
 Wurthington v. Curtis 296 
 
 Wotherspoon v. Currio 420 
 
 Wren v. Bradley 612 
 
 Wrey. Henty v 443 
 
 Wright, Cook v 114 
 
 Killby V 182 
 
 Lomas v 163 
 
 V. Maunder 288 
 
 V. Morley 578 
 
 Norris v , . 451 
 
 V. Saunderson 507 
 
 Smailes v 320 
 
 Wrightson v. By water 316 
 
 Wyatt, Roberts v 31 
 
 Wynn, Green r Ix 
 
 Wynne, Hughes v 161, 634 
 
 Tates, Bridge v 4 81 
 
 Dicks !' 414 
 
 Dixon V 46, 53, 54
 
 Iviii 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Yates, Sherrington v 574 
 
 Ward V 578 
 
 Yea V. Field 11 
 
 Yeoman v. Bradshaw 164 
 
 Young, Ex ijarte , 86 
 
 V. Axtell 496 
 
 V. Feruie , 379 
 
 Halesham v 502 
 
 Lee V 454 
 
 V. Matthews 45 
 
 Piercy v 305, 309 
 
 PAGE 
 
 Young V. Smith 470 
 
 . V. Walker 317 
 
 Young V. Waterpark 438 
 
 Younge, Meacher v 448 
 
 Z. 
 
 Zachary v. Shepherd 318 
 
 Zwinger v. Samuda 46
 
 ( lix ) 
 
 CORRIGENDA. 
 
 Page 127, line 2o, for c. C3, read c. 65. 
 
 ,, 142, note {tc), for c. 117, read c. 37. 
 
 ,, 148, notes (s) (t), cancel the reference to — • 
 
 Stat. 38 & 39 Vict. c. 77, s. 10, 
 
 " '^'-^' '^'''' '^^' ^' \iov sect. 2G, read sect. 23. 
 „ 224, notes (--)(«) ^ 
 
 ,, 292, note {(), for c. 82, read c. 83. 
 
 ,, 344, note {p), for stat. 7 WiU. 4 & 1 Vict. c. 72, read— 
 
 Stat. 7 WiU. 4 & 1 Vict. c. 73. 
 
 ADDENDA. 
 
 Page 6, note (r), aM—BurUnson v. Hall, 12 Q. B. D. 347 ; Walker v. 
 Bradford Old Bank, ib. 511. 
 
 ,, 42, note («), add — Joseph v. Lyons, C. A., 31 Oct. 1884, reported in 
 the Times of the following day ; 1 Times L. E. 16. 
 
 ,, -^2, notQ {g) \ Reeves v. Barlow has been affirmed, 12 Q. B. D. 
 „ 43, note [k) 1 436. 
 
 ,, 43, note [m), add — Joseph v. Lyons, 0. A., 31 Oct. 1884, reported 
 in the Times of the following day ; 1 Times L. E,. 16. 
 
 ,, 46, note (/), Burdick (not Burdriek) v. Sewcll has been reversed, 
 13 Q. B. D. 159. 
 
 ,, 69, note [g), I!x2)arie Johnson, Re Chapman, is now reported 26 Ch. D. 
 338 ; add— J2e Cann, 13 Q. B. D. 36. 
 
 ,, 77, note {d), — Melville^v. Stringer has been reversed, 13 Q. B. D. 
 
 392. 
 
 ,, 79, line 25, add a note — See Davis v. Usher, 12 Q. B. D. 490. 
 ,, 84, note (g), add— Runt v. Fensham, 12 Q. B. D. 162.
 
 Ix ADDENDA, 
 
 96, note {x), — Burdiclc v. ScweU is now reported on appeal, 13 
 Q. B. D. 159. 
 
 98, note (c), &M— Holland v. Worleij, 26 Ch. D. 578. 
 
 137, note (;h), a.M—Re Vallancc ; Vallance v. Blagdcn, 26 Ch. D. 353. 
 
 156, note(>-), add— See Rules of Supreme Court, 1883, Order LXIX. 
 
 170, note (<?), add— See Green v. TFijnn, L. R., 4 Ch. 204; Bateson 
 V. Gosling, L. R., 7 C. P. 7. 
 
 170, Une 18, add — The bankruptcy of the principal debtor does not 
 discharge the surety ; Browne v. Carr, 7 Bing. 508 ; stat. 46 & 
 47 Vict. c. 52, s. 30, sub-s. 4, post, p. 269. 
 
 176, note (>•) — Beer v. Foakes has been affirmed, nom. Foakes v. 
 Beer, 9 App. Cas. 605. 
 
 176, note (0, add— Caret/ v. Barrett, 4 C. P. D. 379. 
 
 194, note (.$), add— See Fx parte Dixon, 13 Q. B. D. 118, 121, 122, 
 124, 126. 
 
 195, note (i/) — Fx parte Dixon is now reported 13 Q. B. D. 118. 
 
 202, line 8, after the words " final judgment," add a note — See Fx 
 parte Chinerij, 12 Q. B. D. 342 ; Fx parte Schmitz, Re Cohen, 
 ibid. 509; Fx parte Woodall, 13 Q. B. D. 479. 
 
 203, line 4, after the word "notice," add a note — See Fx parte 
 Matthew, 12 Q. B. D. 506. 
 
 203, note (z), add— See Fx parte NickoU, 13 Q. B. D. 469 ; Ex parte 
 Oastler, ibid. 471. 
 
 208, note {k), add — Ex parte Johnson, Be Chapman, 26 Ch. D. 338. 
 
 209, note (/), &dd—Fx2)arte Chaplin, Be Sinclair, 26 Ch. D. 319. 
 
 213, add a note to sect. 6, sub-s. 1 [d) of the Bankruptcy Act, 
 \%&2,—Ex 2Mrtc Cunninghafn, Be Mitchell, 13 Q. B. D. 418. 
 
 214, note (f), add— See Fx parte Taylor, Be Lacy, 13 Q. B. D. 128. 
 
 221, line 13, add & -aoie—Ex parte Clark, 13 Q. B. D. 426 ; Ex parte 
 Bogers, ibid. 438. 
 
 283, line 25, add a note— Fx j^arte May, 13 Q. B. D. 552. 
 
 303, notes (;■) {u), a.dd— The Fontida, 9 P. D. 102, 177. 
 
 305, line 14, after the word " arbitration," insert— By the Supreme 
 Court of Judicature Act, 1884 (stat. 47 & 48 Vict. c. 61, s. 11), 
 these provisions are extended to the case of an agreement 
 between the parties to any deed or instrument in writing made 
 on or after the 24th October, 1884, to refer any difference 
 between them to an official referee.
 
 ADDENDA. Ixi 
 
 Page 306, line 13, after the word "reasonable," insert — By the Supreme 
 Court of Judicature Act, 1884 (stat. 47 & 48 Vict. c. 61, s. 10), 
 the Court may now direct any such matter to be ascertained 
 by or referred to an official referee. 
 
 ,, 306, last line, after the word "referee" insert — And by the Su- 
 preme Court of Judicature Act, 1884 (stat. 47 & 48 Vict. c. 61, 
 8. 9), in any cause or matter (other thau a criminal proceeding 
 by the Crown) now pending or hereafter commenced before 
 the High Court of Justice or Court of Appeal, in which all 
 parties who are under no disability consent thereto, the Court 
 or a judge may at any time, on such terms as may be thought 
 proper, order the whole cause or matter to be tried before an 
 official referee, who shall have power to direct in what manner 
 the judgment of the Court shall be entered, and to exercise 
 the same discretion as to costs as the Court or judge could 
 have exercised. 
 
 ,, 307, line 18, add — By the Supreme Court of Judicature Act, 1884 
 (stat. 47 & 48 Vict. c. 61, s. 11), it is provided that, whenever 
 the parties to any deed or instrument in writing made or 
 executed on or after the 24th October, 1884, or any of them, 
 shall agree that any existing or future difference between 
 them, or any of them, shall be referred to an official referee, 
 it shall be the duty of any one of the official referees to whom 
 application shall be made for the purpose, subject to any order 
 which may be made by the Court or a j udge for the transfer of 
 the matter to any other official referee, or otherwise, to hear 
 and determine any difference so agreed to be referred. 
 
 ,, 309, line 20, after the word " only " insert — By the Supreme Court 
 of Judicature Act, 1884 (stat. 47 & 48 Vict. c. 61, s. 11) these 
 provisions are extended to agreements between the parties to 
 any deed or instrument in writing made or executed on or 
 after the 24th October, 1884, to refer any difference between 
 them to an official referee. 
 
 ,, 312, line 6, add — In all cases in which the Court or a judge may 
 appoint an arbitrator under the above provisions, such Court 
 or judge may now dii'ect the matter to be referred to an official 
 referee (stat. 47 & 48 Vict. c. 61, s. 10). 
 
 ,, 314, note (i), add— J/ay v. Harcourt, 13 Q. B. D. 688. 
 
 ,, 337, note (A), add— See also stat. 46 & 47 Vict. c. 29. 
 
 ,, 363, note (>•), add — Mersey Steel and Iron Co. v. Naylor, Benzon f 
 Co., 9 Q. B. D. 648 ; 9 App. Cas. 434. 
 
 ,, 378, note (C), add — See Ec Brandon'' s Patent, E.t parte Doty, 9 App, 
 Cas. 589.
 
 Ixii ADDENDA. 
 
 Page 378, note (y), add — See Be Neivton''s Patents, 9 App. Cas. 592. 
 
 „ 379, note {g), add— See also Rolls v, Isaacs, 19 Ch. D. 268. 
 
 „ 413, note {d), add— TFittman v. Oppenheim, 27 Ch. D. 260, 268. 
 
 „ 420, note {h), add— Levy v. Walker, 10 Ch. D. 436. 
 
 ,, 421, note (f), add^See also James, L. J., LevTj v. Walker, 10 Ch. D. 
 436, 445, 448. 
 
 ,, 422, notes (>«), («), (o) — Fearso/i v. Pearson is now reported, 27 Ch. D. 
 145. 
 
 ,, 430, notes (o), (p), add — Lawrence v. Lawrence, 26 Ch. D. 795. 
 
 ,, 476, line 6, add — By the Customs and Inland Revenue Act, 1881 
 (stat. 44 Vict. c. 12, s. 38), stamp duties at the like rates as are 
 by the same Act charged on affidavits for obtaining probate (see 
 post, pp. 521, 522) are charged on accounts delivered of personal 
 or moveable projjerty (according to the value thereof) of the 
 following description, viz. : (a) Any property taken under a 
 voluntary disposition made by any person dying on or after the 
 1st June, 1881, and purporting to operate as an immediate gift 
 inter vivos whether by way of transfer, delivery, declaration 
 of trust or otherwise, which shall not have been bona fide 
 made three months before the death of the deceased ; {h) any 
 property which a person dying on or after siich day having 
 been absolutely entitled thereto, has voluntarily caused or 
 may voluntarily cause to be transferred to or vested in himself 
 and any other person jointly whether by disposition or other- 
 wise, so that the beneficial interest therein or iu some part 
 thereof passes or accrues by survivorship on his death to any 
 other person ; (c) any jproperty passing under any past or 
 futiu'e voluntary settlement made by any person dying on or 
 after such day by deed or any other instrument not taking 
 effect as a will, whereby an interest in such property for life 
 or any other period determinable by reference to death is 
 reserved either expressly or by implication to the settlor, or 
 whereby the settlor may have reserved to himself the right, 
 by the exercise of any power, to restore to himself, or to 
 reclaim the absolute interest in such property. Eut where an 
 account delivered duly stamped comprises property passing 
 under a voluntary settlement, and, upon the production of the 
 settlement, it shall appear that the stamp duty of 5s. per 
 centum has been paid thereon according to the amount or 
 value of the property passing, or any part thereof, the 
 amount of such stamp duty shaU be returned to the person 
 delivering the account. By sect. 39, every person who as 
 beneficiary, trustee, or otherwise, acquires possession, or 
 assumes the management of any personal or moveable pro-
 
 ADDENDA. Ixiii 
 
 perty of a description to he included in an account, shall 
 upon retaining the same for his own use or distributing or 
 disposing thereof, and in any case within six calendar months 
 after the death of the deceased deliver to the Commissioners 
 of Inland Revenue a full and true account, verified by oath, 
 of such property duly stamped as required by the Act. 
 
 Page 476, lino 15, after the word " successor," add a note — The 
 Customs and Inland Revenue Act, 1881 (stat. 44 Vict. c. 12, 
 s. 41), provides that, in respect of any succession to pz'operty 
 according to the value whereof duty shall have been paid on 
 the affidavit or inventory or account in conformity with this 
 Act, the duty at the rate of 11. per centiun imposed by the 
 Succession Duty Act, 1853, shall not be payable ; see lie 
 Eaggarth's Trusts, 22 Ch. D. 545. 
 
 ,, 509, note (c) — BJoxam v. Favre has been affirmed, 9 P. D. 130. 
 
 „ 608, note {d), aM— Brady v. Todd, 9 C. B., N. S. 592, 605 ; T/aUip- 
 son V. Eayter, L. E,., 6 C. P. 38. 
 
 ,, 620, note {b), aM—roinoiibg v. Fonsonbi/, 9 P. D. 58, 122. 
 
 ,, 030, note (b), add — A question appears to be raised by these cases, 
 whether rent secured by an indenture of demise can now be 
 recovered by action of debt or covenant within a longer period 
 than twelve years. For rent is money payable out of land. 
 
 ,, 635, note («), add— Hughes v. Coles, 27 Ch. D. 231. 
 
 ,, 639, note (/), add — Mtitual Life Assurance Co. v. Langley, 26 Ch. D, 
 686.
 
 PlilNCIPLES 
 
 LAW OF PEESONAL PEOPERTT. 
 
 INTEODUCTOEY CHAPTEE. 
 
 OF THE SUBJECTS AND NATURE OF PERSONAL 
 PROPERTY. 
 
 The English law of property is divided into two great Real and per- 
 brauches, — the law of real property, and the law of ®°°^^^'™" 
 personal property. The feudal rules, which respected 
 the holding and culture of land, were the elements of 
 the common law of real property ; the rules relating to 
 the disj)osition of goods were the origin of the law of 
 personal property. Such property was anciently of 
 little importance, and its laws were consequently few 
 and simple. It did not, however, escape the ecclesiastical 
 influence which spread so widely in the middle ages; 
 and it has thence derived that subjection to the rules of The civil law. 
 the civil law by which it is characterized when trans- 
 mitted by will or distributed on intestacy. 
 
 The division of property into real and personal, though Chattels real, 
 now well recognized, and constantly referred to even in 
 the acts of the legislature, is comparatively of modern 
 date. In ancient times property was divided into lands, 
 tencinenfs and hereditanienU on the one hand, and goods 
 
 w.r.p, B
 
 IXTRODUCTOTIY (JHAPTER. 
 
 and cliattch on tho otlier. These two last terms appear 
 to be synonymous. In process of time, however, certain 
 estates and interests in land grew np, which were 
 unknown to tho ancient feudal system, and could not 
 conveniently be subjected to its rules. Of these the 
 most important were leases for years. Such interests, 
 therefore, were classed among chattels ; but as they 
 savoured, as it was said, of the realty, they acquired the 
 name of chattels real (a). In more modern times, 
 chattels real have been classed, with other chattels, 
 within the division of personal property ; but as chattels 
 real, though personal property, are in fact interests in 
 land, the laws respecting them have been noticed in the 
 author's treatise on the Principles of the Law of Real 
 Property {h). Chattels real will therefore be only inci- 
 dentally noticed amongst the subjects treated of in the 
 present work. 
 
 Chattels per- 
 sonal. 
 
 Reason for 
 the terna 
 *' personal." 
 
 When leases for years, and other interests in land of 
 the like nature, were admitted into the class of chattels 
 as chattels real, it became necessary that such goods as 
 had previously constituted the whole class, should be 
 distinguished from them by some further name ; and the 
 title of chattels penonal was accordingly applied to all 
 such chattels as did not savour of real estate. For this 
 title, the choice of two reasons is given to the reader by 
 Sir Edward Coke, — " because, for the most part, they 
 belong to the person of a man, or else for that they are 
 to be recovered by personal actions" (r). The former 
 of these two reasons has been chosen by Mr. Justice 
 Blaekstone {d). But it is submitted that the latter 
 reason is most probably the true one. When goods and 
 chattels began to be called personal, they had become 
 
 (rt) Co. Litt. 118 b. 
 
 {b) Principles of the Law of 
 Ecal Property, 387, 13th ed. ; 
 401, 14th cd. 
 
 {c) Co. Litt. 118 b. 
 \d) 2 Elack. Com. 16, 384; 3 
 Black. Com. 144.
 
 OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. 3 
 
 too numerous and important to accompany the persons 
 of their owners. On the other hand, the bringing and 
 defending of actions lias always been the most prevail- 
 ing business of lawyers ; from the different natures of 
 actions, the nomenclature of the law is therefore most 
 likely to have proceeded. Now actions were long di- Actions real, 
 vided into three classes, — real actions, personal actions, mTxcd.^ ' ^" 
 and mixed actions. Real actions were brought for the 
 recovery of lands, and, by their aid, the real land was 
 restored to its rightful owner. Mixed actions, as their 
 name imports, were real and personal mixed together. 
 Personal actions were brought in respect of goods for 
 which, as they are in their nature destructible, nothing 
 but pecuniary damages could with certainty be recovered 
 from the 2)erso)i against whom the action was brought. 
 Accordingly, by the ancient law of England, there never 
 were more than two kinds of personal actions in which 
 there was a possibility of recovering, by the judgment 
 of the Court, the identical goods in respect of which 
 the action was brought. One of these was the action of Action of de- 
 detiniie, where goods, having come into a man's posses- ^^^^' 
 si on, were imlawfully detained by him ; in which case, 
 however, the judgment was merely conditional, that the 
 plaintiff recover the said goods, or {if they could not he 
 had) their respective values, and also the damages for 
 detaining them {c). The other was the action of replevin^ Action of re- 
 brought for goods which had been unlawfully distrained ; P^^^°- 
 but in this case the goods were never beyond the cus- 
 tody of the sheriff, who is an officer of the law, and their 
 safe return could therefore be secured (/). Goods there- 
 fore seem to have been called personal, because the 
 remedy for their abstraction was against the person who 
 had taken them away, or because, in the words of Lord 
 Coke, they were to be recovered by personal actions {(j) . 
 
 (e) 3 Black. Cora. 152. {()) See Principles of the Law 
 
 (/) Ibid. 14 G. of "Real Property, 7. 
 
 1! 2
 
 INTRODUCTORY CHAPTER, 
 
 Now enact- 
 ments. 
 
 By recent statutes (//), however, provision has been made 
 for enforcing the delivery of goods, in actions for their 
 detention or for breach of contract to deliver them for 
 a price in money ; and if they cannot be found, all the 
 lands and chattels of the defendant may be distrained 
 till they are delivered. 
 
 Chattels personal, then, are the subjects of the pre- 
 sent treatise. In ancient times they consisted entirely of 
 moveable goods, visible and tangible in their nature, and 
 in the possession either of the owner or of some other 
 person on his behalf. Nothing of an incorporeal nature 
 was anciently comprehended within the class of chattels 
 personal. In this respect the law of personal property 
 strikingly differs from that of real property, in which, 
 from the earliest times, incorporeal hereditaments occu- 
 pied a conspicuous place. But although there was for- 
 merly no such thing as an incorporeal chattel personal, 
 there existed not nnfrequently a right of action, or the 
 liberty of proceeding in the courts of law either to re- 
 cover pecuniary damages for the infliction of a wrong 
 or the nonperformance of a contract, or else to procure 
 the payment of money due. Such a right was called, 
 in the Norman French of om- early lawyers, a chose or 
 thing in action, whilst moveable goods were denominated 
 choses in possession. Choses in action, though valuable 
 rights, had not in early times the ordinary incident of 
 property, namely, the capability of being transferred ; 
 for, to permit a transfer of such a right was, in the 
 simplicity of the times, thought to be too great an en- 
 couragement to litigation {i) ; and the attempt to make 
 Maintenance, such a transfer involved the guilt of maintenance or the 
 maintaining of another person in his suit. It was im- 
 
 Chose in ac 
 tion. 
 
 (A) Stats. 17 & IS Vict. c. 125, 
 s. 78, repealed by 46 & 47 Vict, 
 c. 49; 19 & 20 Vict. c. 97, s. 2; 
 38 & 39 Vict. e. 77, s. 17; Rules 
 
 of the Supreme Com-t, 1883, Ord. 
 XLII., r. 6, XLVIII., Appendix 
 H., Nos. 10, 11. 
 (i) 10 Rep. 48 a.
 
 OF THE SUJUECTS A>fJ) NATUHK OF PEKSONAL rKOPERTY, 
 
 possible, however, that this simple state of things should 
 long continue. Within the class of choses in action was 
 comprised a right of growing importance, namely, that 
 of suing for money due, which right is all that consti- 
 tutes a debt. That a debt should be incapable of transfer a debt, 
 was obviously highly inconvenient in commercial trans- 
 actions ; and in early times the custom of merchants 
 rendered debts secm-ed by bills of exchange assignable 
 by indorsement and delivery of the bills. But choses 
 in action not so secured, could only be sued for by the 
 original creditor, or the person who first had the right of 
 action. In process of time, however, an indirect method 
 of assignment was discovered, the assignee being em- 
 powered to sue in the name of the assignor ; and in the 
 reign of Henry VII. it was determined that a " chose in 
 action may be assigned over for lawful cause as a just 
 debt, but not for maintenance, and that where a man is 
 indebted to me in £20, and another owes him £20 by 
 bond, he may assign this bond and debt to me in satis- 
 faction, and I may justify for suing it in the name of the 
 other at my own costs" (/.•). Choses in action, having 
 now become assignable, became an important kind of 
 personal property ; and their importance was increased 
 by an act of the following reign (/), whereby the taking 
 of interest for money, which had previously been un- 
 lawful, was rendered legal to a limited extent. Loans 
 and mortgages soon became common, forming a kind of 
 incorporeal personal property unknown to the ancient 
 law. In the reign of Queen Anne, promissory notes 
 were rendered by act of parliament, assignable by in- 
 dorsement and delivery, in the same manner as inland 
 bills of exchange {in) . More recent statutes enabled 
 the indorsee of a bill of lading (a?), and the assignee of 
 
 iji) Bro. Abr. tit. Chose in Ac- made perpetual by stat. 7 Anne, 
 
 tion, pi. 3, 15 Hen. VII. c. 2. c. 2.5, s. 3. 
 
 (0 Stat. 37 Hen. VIII. c. 9. (») Stat. IS & 19 Vict. c. Ill, 
 
 \m) Stat. 3 & 4 Anne, c. 9, s. 1.
 
 b INTKODrCTOIlY CIIAPTEK. 
 
 a life (o) or sea {p) policy of insiu'ance, to sue in his 
 own name. But until the first of November, 1875, all 
 other choses in action were assignable at law only by 
 empowering the assignee to sue in the name of the 
 Debts now assignor. Since that date it has been provided by the 
 wS?^'^^ Supremo Court of Judicature Act, 1873 (</), that any 
 absolute assignment by writing under the hand of the 
 assignor (not purporting to be by way of charge only) (r) 
 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) 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. 
 
 Equitable 
 choses in ac- 
 tion. 
 
 In addition to the mass of incorporeal personal pro- 
 perty, which exists in the form of choses in action 
 recoverable by action at law, there exist also equitable 
 choses in action, or rights which, prior to the Supreme 
 Court of Judicature Acts, 1873 and 1875 (s), were en- 
 forceable 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 {t), but was obliged to bring a suit in equity. 
 
 (o) Stat. 30 & 31 Vict. c. 144. 
 
 {p) Stat. 31 & 32 Vict. c. 86. 
 
 {q) Stat. 3G & 37 Vict. c. 66, s. 
 25, sub-sect. (6). This act was 
 postponed to 1st Nov. 1875, by 
 Stat. 37 & 38 Vict. c. 83, and 
 amended by stats. 38 & 39 Vict. 
 c. 77 ; 40 Vict. c. 9 ; 42 & 43 
 
 Vict. c. 78 ; 44 & 45 Vict. c. 68 ; 
 and 46 & 47 Vict. c. 29. 
 
 ()■) See National Provincial Bank 
 V. Harlc, 6 Q. B. D. 626. 
 
 (.v) Stats. 36 & 37 Vict. c. 66, 
 and 38 & 39 Vict. c. 77. 
 
 {t) Decks V. Sirutt, 5 T. Eep. 
 690 ; Braithivaite v. Skinner, 5
 
 OF THE SUBJECTS AM) NATUKE OE TEKSONAE rilOPERTY. 7 
 
 This kind of cliose in action miglit have hcen assigned 
 directly from one person to another, and the assignee 
 might sue in equity in his own name. For equity, 
 being of more modern origin than the common law, was 
 guided in its practice by rules more adapted to the 
 exigencies of modern society. 
 
 In modern times also several species of property have Funds, 
 sprung up which were unknown to the common law. ' ' 
 The funds now afford an investment, of which oiu- 
 forefathers were happily ignorant, whilst canal and rail- 
 way shares, and other shares in joint stock companies, 
 and patents and copyrights, are evidently modern 
 sources of wealth. These kinds of property are all of a 
 personal nature, many of them having been made so by 
 the acts of parliament under the authority of which they 
 have originated. For want of a better classification, 
 these subjects of personal property are now usually 
 spoken of as choses in action. They are, in fact, personal 
 property of an incorporeal nature, and a recurrence to 
 the history of their classification amongst choses in action 
 will, as we shall hereafter see, help to explain some of 
 their peculiarities. 
 
 Such is the general outline of the subjects of modem How persoual 
 personal property. They are distinguished from real diScra from 
 property by being unaffected by the feudal rules of ^'cal. 
 tenure, by being alienable by methods altogether dif- 
 ferent, by passing in the first instance to the executors, 
 when bequeathed by will, and by devolving, on their 
 
 Mee. & Wels. 313. Legacies ss. 58, G5 ; 13 & U Vict. c. Gl ; 
 
 under fifty pounds were recover- 19 & 20 Vict. c. 108. These 
 
 able in the county courts, Tinder courts have now an equitable 
 
 the acts for the more easy re- jurisdiction, and legacies under 
 
 covery of small debts and de- five hundred pounds are now 
 
 mands in England, unless the recoverable therein. Stats. 28 & 
 
 validity of the bequest were dis- 29 Vict. c. 99 ; 30 & 31 Vict. c. 
 
 puted. Stats. 9 k 10 Vict. c. 9a, 142.
 
 8 
 
 INTROUUCTORY CHArXER. 
 
 owner's intestacy, not on his heir, but on an adminis- 
 trator appointed formerly by the Ecclesiastical Court, 
 afterwards by the Court of Probate, and now by the 
 Probate, Divorce and Admiralty Division of the High 
 Court of Justice, by whom they are distributed amongst 
 the next of kin of the deceased. On the first of these 
 characteristics, however, mainly depends the nature of 
 the property which exists in things personal. The first 
 lesson to be learned on the nature of real property is 
 this — that of such property there can be no such thing 
 as an absolute ownership ; the utmost that can be held 
 Eeal property or enjoyed in real property is an estate {u). There 
 estates^ ^^y ^® ^^ estate for life, or an estate tail, or an estate 
 
 in fee simple ; but, according to the law of England, 
 there cannot exist over landed property any absolute 
 and independent dominion. All the land in the king- 
 dom is the subject of tenure ; and if the estate is not 
 holden of any subject, at any rate it must be held of 
 Personal pro- the crown. With regard to personal property, however, 
 lect of abso- ' ^^® primary rule is precisely the reverse. Such property 
 lute owner- is essentially the subject of absolute ownership, and 
 cannot be held for any estate. It is true that the phrase 
 2)ersonal estate is frequently used as synonymous with 
 personal property ; but this general use of the term estate 
 should not mislead the student into the supposition that 
 there can be any such thing as an estate in personalty 
 properly so called. The rule that no estate can subsist 
 in personal property would seem to have originated in 
 the nature of such property in early times. Goods and 
 chattels of a personal kind, in other words, moveable 
 articles, then formed, as we have seen, the whole of 
 a man's personal estate. And such articles, it is evi- 
 dent, may be the subjects of absolute ownership, and 
 have not those enduring qualities which would render 
 them fit to be holden by any kind of feudal tenure. 
 
 (m) Principles of the Law of Eeal Property, 17, 13tli ed. ; 18, 
 14th ed.
 
 OF THE SUBJECTS AND NATUKE OF PERSONAL PROPERTY. 
 
 As personal property increased in value and variety, 
 many kinds of property of a more permanent nature 
 became, as we have seen, comprised within the class of 
 personal, such as leases for years, of whatever length, 
 and Consolidated Bank Annuities. But the rule that 
 there can be no estate in chattels, the reason of which 
 was properly applicable only to moveable goods, still 
 continues to be applied generally to all sorts of personal 
 property, both corporeal and incorporeal. The conse- 
 quences of this rule, as we shall hereafter see, are curious 
 and important. But in the first place it will be proper 
 to consider the laws respecting those moveable chattels, 
 or choses in possession, which constitute the most ancient 
 and simple class of personal property ; the class, how- 
 ever, which has given to the rest many of the rules for 
 regulating their disposition.
 
 ( 10 ) 
 
 PART I. 
 
 OF CHOSES IN POSSESSION. 
 
 CHAPTER I. 
 
 OF CHATTELS WHICH DESCE]SD TO THE HEIR. 
 
 C HOSES in possession are moveable goods, sucli as plate, 
 furniture, farming stock, both live and dead, locomotive 
 engines and ships. These, as has been before remarked, 
 are essentially the subjects of absolute ownership, and 
 cannot be held by estates ; they are alienable by methods 
 altogether different from those employed for the convey- 
 ance of landed property, and they devolve in the first 
 instance on the executor of the will of their owner, or 
 on the administrator of his effects, if he should die 
 Exceptions to intestate. There are, however, some kinds of choses in 
 ruL^*^^^^*^ possession which form exceptions to the general rule : 
 these consist of certain chattels so closely connected 
 with land that they partake of its nature, pass along 
 with it, whenever it is disposed of, and descend along 
 with it, when undisposed of, to the heir of the deceased 
 owner. The chattels which thus form exceptions are 
 the subject of the present chapter: they consist princi- 
 pally of title deeds, heir-looms, fixtures, chattels vegetable, 
 and animals fero) nafitrce. Of each in their order. 
 
 Title deeds Title deeds, though moveable articles, are not strictly 
 
 pass by the speakinff chattels. They have been called the sinews 
 
 conveyance or ■■- " "^ . . 
 
 the lands. of the land {a) , and are so closely connected with it 
 that they will pass, on a conveyance of the land, without 
 
 («) Co. Litt. 6 a.
 
 OF CllAT'lELS ^M11CI1 JJESCEM) TO TJIE HEIR. 11 
 
 being expressly mentioued : the property iu the deeds 
 passes out of the vendor to the purchaser simply by the 
 grant of the land itself {h). In like manner a devise of 
 lands by will entitles the devisee to the possession of the 
 deeds ; and if a tenant in fee simple should die intestate, 
 the title deeds of his lands will descend along with them 
 to his heir at law {(•). In former times, when warranty 
 was usually made on the conveyance of land {d), the rule 
 was that the feoffor should retain all deeds containing 
 warranties made to himself or to those through whom 
 he claimed, and also all such deeds as were material for 
 the maintenance of the title to the land {e) . But if the 
 feoffment was made without any warranty, the feoffee 
 was entitled to the whole of the deeds ; for the feoffor 
 could receive no benefit by keeping them, nor sustain 
 -any damage by delivering them (_/'), Warranties have 
 now fallen into disuse ; but the joi'inciple of the rule 
 above stated still applies when the grantor has any other 
 . lands to which the deeds relate, or retains any legal 
 interest in the lands convej-ed ; for in either of these 
 cases he has still a right to retain the deeds [g). And 
 it is now expressly enacted {It), that where the vendor 
 retains any part of an estate, to which any documents 
 of title relate, he shall be entitled to retain such docu- 
 ments. If the grantor should retain merely an equitable 
 right to redeem the lands, as in the case of a mortgage 
 in fee simple, it has been said that this equitable right 
 is a sufficient interest in the lands to authorize him to 
 
 {b) ITarrhifftony. Price, 3 Barn. (e) Bucl-hin'st'' s case, 1 E,op. 1 b. 
 
 & Adol. 170; ritilijJSY. Robinson, (/) 1 Rep. 1 a. 
 
 4Bmg. 106; S. C. 12 Moore, 308. [(/) Bro. Abr. tit. Charters de 
 
 {c) "Wentwortli's Office of an Terre, pi. 53 ; Tea v. Field, 2 T. 
 
 Executor, 14th ed. 153; Williams Rep. 708; see however Sug-d. 
 
 on Executors, pt. 2, book 2, c. 3, Vend. &Pur. 367, 13th ed. ; 441, 
 
 s. 3. 442, 14th ed. ; 2 Prest. Conv. 466. 
 
 id) See Principles of the Law {h) Stat. 37 & 38 Vict. c. 78, 
 
 of Real Property, 444, 13th ed. ; s. 2, sub-sect. 5; Williams's Cou- 
 
 469, 14th ed. veyanciug Statutes, 14.
 
 12 OF CHOSES IN POSSESSION. 
 
 witlihokl the deeds, unless they are expressly granted 
 to the mortgagee (/). It is very questionable, however, 
 whether a legal right ought to he attached to an in- 
 terest merely equitable. And the doctrine last men- 
 tioned is opposed by more recent decisions in another 
 court (y). 
 
 When the If a conveyance of lands should be made by way of 
 
 ^y^^'!^y^°£® ^^ use, thus, if lands should be granted to A. and his heirs 
 "s^- to the use of B. and his heirs, it has been said that the 
 
 title deeds of the land will belong to A., the grantee; 
 because, although the Statute of Uses (/.•) conveys the 
 legal estate in the lands from A. to B., it does not affect 
 the title deeds, which must consequently still remain 
 vested in A. (/). But this doctrine has been justly 
 C|uestioned, on the ground that the legislative convey- 
 ance from A. to B., effected by the Statute of Uses, 
 ought to be at least as powerful as the common law con- 
 veyance of the lands to A. ; and if the latter conveyance 
 can carry with it the deeds relating to the land, the 
 former conveyance should be considered as powerful 
 enough to do the same {m) ; and it has accordingly been 
 so decided in a case in Ireland (;?). 
 
 The tenant of an estate in fee simple in lands pos- 
 sesses 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 for the value of the parch- 
 When the ment (o) . But if the lands to which deeds relate should 
 
 (i) Davies v. Vernon, 6 Q. B. 5th ed. 117. 
 443, 447. («0 Sug-d. Vend. & Pur. 366, 
 
 {J) Goodc V. Burton, 1 Exch. 13th ed. ; 440, 14th ed. ; Co. 
 
 Eep. 189 ; Newton v. Beck, 3 H. Litt. 6 a, n. (4). 
 & N. 220 ; see Williams's Con- («) Malone v. Minoitghan, 14 Ir. 
 
 veyancing Statutes, 150. Com. Law Eep. 540, dissentiente 
 
 {k) 27 Hen. VIII. c. 10. Hayes, J. 
 
 (/) 1 Sand. Uses, 4th ed. 119 ; (o) Cro. Eliz. 496.
 
 OF CHATTELS WHICH DESCEND TO THE HEIR. 13 
 
 be settled on any person for life or in tail, a qualified lands are 
 ownership will arise with respect to the deeds, diiferent •^'^''"'^"• 
 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 (p) ; 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 re- 
 late to such freehold (q) ; 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 (r). 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 injiu-e or part with 
 them (s) : he has an interest in the title deeds corre- 
 spondent only to his estate in the lands ; and if he 
 should part with the deeds, even for a valuable con- 
 sideration, the remainder-man, on coming into posses- 
 sion 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 (f). 
 
 Heir-looms, strictly so called, are now very seldom to Heir-looms, 
 be met with. They may be defined to be such personal 
 
 {p) Ford v. Peering, 1 Ves. jun. 1 You. & Jer. 117; Uothani x. 
 
 76 ; Strode v. Blackburne, 3 Ves. Somervillc, 5 Beav. 360. 
 
 225 ; Garner v. Ilannyngton, 22 (r) Hooper v. liamsbottom, 6 
 
 Beav. 627 ; Allwood v. Hey wood, Taunt. 12. 
 
 Exch. 11 W. R. 291 ; 1 Hurlst. (4) Bro. Abr. tit. Charters de 
 
 & Colt. 745 ; Leathcs v. Leathes, Terre, pi. 36. As to production, 
 
 M. R., 5 Ch. D. 221. See Wil- see Bancs v. Earl of Di/sart, 20 
 
 Hams' s Conveyancing Statutes, Beav. 405. 
 
 13. {() Davies v. Vernon, 6 Q. B. 
 
 (7) ChurchiU v. Small, 8 Ves. 443; Easton v. London, Exch. 12 
 
 323 ; Harper v. Faulder, 4 Mad. TV. R. 53 ; 33 L. J., Excli. 34. 
 129, 138 ; Wiseman v. Wcstland,
 
 14 OF CHOSES IN POSSESSIOX. 
 
 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 {u). 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 be- 
 quest, which, not coming into operation until after the 
 decease of the owner, is too late to supersede the cus- 
 tom [x) . According to some authorities heir-looms con- 
 sist only of bulky articles, such as tables and benches 
 fixed to the freehold (//) ; but such articles would more 
 properly fall within the class of fixtures, of which we 
 
 CroTTO jewels, shall next speak. The ancient jewels of the crown are 
 heir-looms iz). And if a nobleman, knight or esquire 
 
 Coat armour, l^e buried in a chiu'ch, and his coat armour or other en- 
 signs of honor belonging to his degree be set up, or if a 
 
 Tombstone, tombstone be erected to his memory, his heirs may main- 
 tain an action against any person who may take or deface 
 
 Deed boxes, them («). The boxes in which the title deeds of land 
 are kept are also in the nature of heii'-looms, and will 
 belong to the heir or devisee of the lands ; 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 adminis- 
 trator of the deceased, although title deeds should hap- 
 
 Popular use pen to be found in it. In popular language the term 
 
 "heir-loom." " heir-loom " is generally applied to plate, pictures or 
 articles of property wliich 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 per- 
 sons for the time being in possession, under the settle- 
 ment or will, of the mansion-house in which the articles 
 
 {u) See Co. Litt. 18 b. {z) Co. Litt. 18 b. 
 
 (;(•) Co. Litt. 185 b. («) Ibid. 
 
 {y) Spelman's Glossaiy, voce {b) Wentworth's Office of an 
 
 Heir-Loom. See Williams on Executor, 157, 14th ed. 
 Executors, pt. 2, bk. 2, ch. 2, s. 3.
 
 OF CHATTELS WHICH DESCEND TO THE HEIR, 15 
 
 may be placed (c). Of this kind of settlement more 
 will be said hereafter. 
 
 Fixtui'es are such moveable articles or chattels per- Fixtures, 
 sonal 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 
 qidcquid plantatuv solo, solo cedit {d). Hence it followed 
 that houses themselves, which consist of aggregates of 
 chattels personal (namely, timber and bricks) fixed to 
 the 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 (<?) . So 
 now, a conveyance of a house or other building, whether 
 absolutely or by way of mortgage, will comprise all ordi- 
 nary fixtures, such as stoves, grates, shelves, locks, &c. (,/'), 
 and also fixtures erected for the purposes of trade (g), 
 without any express mention, unless an intention to 
 withhold the fixtures can be gathered from the con- 
 text {//). So on the decease of a tenant in fee simple, 
 
 (e) See Williams's Conveyauc- 403 ; Mather v. Fraser, 2 Kay & 
 
 ing Statutes, 339. Jolin. 536 ; Williams v. Evans, 23 
 
 ■{d) See 4 Eep. 64 a ; 1 Lord Beav. 239; Walmeslcy v. Milne, 
 
 Raymond, 738; 3fackintosh v. 7 C. B., N. S. 115; Metropolitan 
 
 Trotter, 3 Mee. & Wels. 184, 186 ; Counties, #c. Society v. Brown, 26 
 
 Williams on Executors, pt. 2, bk. Beav. 454. See Williams's Con- 
 
 2, cli. 3, s. 2. veyancing Statutes, 60, 62, 70. 
 
 (c) See Principles of the Law {()) Cnllwick v. Swindell, 'M.'R., 
 
 of Real Property, 14, 13th ed. ; L. Rop., 3 Eq. 249; Cliinic v. 
 
 15, 14th cd.; Williams's Con- Wood, Law Rep., 3 Exch. 257; 
 
 veyancing Statutes, 60, 62. Zony bottom v. Bcrrtj, L. Rep., 5 
 
 (/) Colegrave v. Bias Santos, 2 Q. B. 123 ; Holland v. Hodgson, 
 
 Barn. & Cress. 76 ; S. C. 3 Dowl. L. R., 7 0. P. 328 ; 3Ieux v. Jacobs, 
 
 & Ry. 255 ; Longstaffy. Meagoe, L.'R., 7 H. of L., E. & I. 481. 
 
 2 Ad. & Ell. 167; Hitchmanv. (/;) HarcY. Horton, 5 Bani. & 
 
 Walton, 4 Mee. & Wels. 409 ; Ex Adol. 715. 
 parte Barclay, 5 De Gr., M. & G.
 
 16 
 
 OF CHOSES IN POSSESSION. 
 
 Fixtures of 
 tenants for 
 years. 
 
 Agricultural 
 fixtures. 
 
 Agricultural 
 Holdings 
 (England) 
 Act, 1875. 
 
 tlie devisee of a bouse, or the heir at law in case of in- 
 testacy, will be entitled generally to the fixtures set up 
 in it («') . 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 (,/), provided they remove them 
 before the expiration of their tenancy (A-), 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 (/). But 
 an act of the present reign (m) provides that fixtures 
 put up, with the consent in icriting of the landlord for 
 the time being, 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 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. This act extends to farm buildings either 
 detached or otherwise, and to engines and machinery, 
 either for agricultural purposes or for the pm-poses of 
 trade and agriculture, although built in or permanently 
 fixed to the soil, so as the tenant making any such 
 removal do not in anywise injure the land or buildings 
 belonging to the landlord, or otherwise do put the same 
 in like plight and condition, or as good plight and con- 
 dition, as the same were in before the erection of any- 
 thing so removed. A further relaxation of the old rule 
 was made by the Agricultural Holdings (England) Act, 
 1875 (»), with regard to any engine, machinery or other 
 
 (0 Shep. Touch. 470. 
 
 U) Gnjmcs v. Boiveren, 6 Bing. 
 437. 
 
 {k) Lijde v. Russell, 1 Barn. & 
 Adol. 394 ; Leader v. HomewoQd, 
 5 C. B., N. S. 546 ; Fngh v. Arton, 
 V.-C. M., L. Eep., 8 Eq. 626; 
 Lee V. Gasl-eU, L. R., 1 Q. B. D. 
 
 700; Ex parte Stephens, L. E,., 7 
 Ch. D. 127 ; Ex parte JBrook, In re 
 Roberts, L. R., 10 Ch. D. 100. 
 
 (/) Elwes V. Maiv, 3 East, 38. 
 
 [m) Stat. 14 & 15 Vict. c. 25, 
 s. 3. 
 
 («) Stat. 38 & 39 Vict. c. 92, 
 s. 53.
 
 OF (.IIATTEI.s WHICH J)ESf:i;X]) TO THE HEIlt. 17 
 
 fixture affixed by a tenant to his holding after the com- 
 mencement of the Act, which took place from and 
 immediately after the 14th of February, 1876 {p). 
 
 That Act was however repealed by the Agi'icultural Agricultural 
 Holdings (England) Act, I880 [q), Avhicli came into (Eugland) 
 force on the 1st of January, 1881 (/•). But it was pro- ^^^^ ^^*^''- 
 vided that such repeal • should not affect any right in 
 respect of fixtures affixed to a holding before that date, 
 and that any such right might be enforced after that 
 date in all respects as if no such repeal had taken 
 place (s). The Act of 1883, contains the following- 
 enactments : — 
 
 (Sect. 34) Where, after the commencement of this 
 Act, a tenant {f) affixes to his holding [t) any engine, 
 machinery, fencing, or other fixture, or erects any build- 
 ing for which he is not under this Act or otherwise 
 entitled to compensation {u), and which is not so affixed 
 or erected in pursuance of some obligation in that be- 
 half, or instead of some fixture or building belonging to 
 the landlord it), then such fixture or building shall be 
 
 {p) Sect. 2. erected by the tenant if, before 
 
 {'{) Sttit. 4G & 47 Vict. c. 61, erecting it, the tenant had not 
 
 s. 02. given to the landlord notice in 
 
 {)•) Sect. 53. writing of his intention to do so, 
 
 («) Sect. 62. Sect. 53 of the or if the landlord, by notice iu 
 
 Act of 1875 related only to any writing given to the tenant, had 
 
 engine, machinery, or other fix- objected to the erection thereof. 
 
 ture, did not mention fencing, The application of the Act of 
 
 was silent as to the time of re- 1875 might be totally or partially 
 
 moval of any fixture, and con- excluded by agreement in writing 
 
 tained no provision as to the between the landlord and the 
 
 removal of or property in any tenant (ss. 54 — 56) ; and the Act 
 
 building erected by the tenant ; did not apply to a holding that 
 
 but in other respects its pro- was not either wholly agricultural 
 
 visions were the same as those of or wholly pastoral, or in part 
 
 sect. 34 of the Act of 1883, quoted agricultural and as to the residue 
 
 in the text. Sect. 53 of the Act pastoral, or that was of less ex- 
 
 of 1875 however contained a tent than two acres (s. 58). 
 
 proviso that nothing therein {t) Sec s. 61. 
 
 should apply to a steam engine («) See ss. 1 — 5, 57. 
 
 w.r.p. c
 
 18 OF CHOSES IX POSSESSIOX. 
 
 the property of and be removable by the tenant before 
 or within a reasonable time after the termination of the 
 tenancy {f). 
 
 Provided as follows: — 
 
 1. Before the removal of any fixtm'e or building, the 
 
 tenant shall pay all rent owing by him, and 
 shall perform or satisfy -all other his obKgations 
 to the landlord in respect to the holding. 
 
 2. In the removal of any fixtm^e or building the 
 
 tenant shall not do any avoidable damage to any 
 other building or other part of the holding. 
 
 3. Immediately after the removal of any fixture or 
 
 building the tenant shall make good all damage 
 occasioned to any other building or other part of 
 the holding by the removal. 
 
 4. The tenant shall not remove any fixture or build- 
 
 ing without giving one month's previous notice 
 in writing to the landlord of the intention of the 
 tenant to remove it. 
 
 5. At any time before the expiration of the notice of 
 
 removal the landlord, by notice in writing given 
 by him to the tenant, may elect to purchase any 
 fixtm-e or building comprised in the notice of re- 
 moval, and any fixture or building thus elected 
 to be purchased shall be left by the tenant, and 
 shall become the property of the landlord, who 
 shall pay the tenant the fair value thereof to an 
 incoming tenant of the holding ; and any differ- 
 ence as to the value shall be settled by a refer- 
 ence under this Act, as in case of compensation 
 (but without appeal) (r). 
 (Sect. 54) Nothing in this Act shall apply to a holding 
 that is not either wholly agricultural or wholly pastoral, 
 or in part agricultural, and as to the residue pastoral, or 
 in whole or in part cultivated as a market garden, or to 
 
 {t) See 8. 61. {v) See S8. 8—22, 24—28.
 
 OF CHATTELS WHICH DESCEND TO THE HEIR. 19 
 
 any holdiug let to the tenant during his continuance in 
 any office, appointment, or employment held under the 
 landlord. 
 
 A relaxation of the old rule has also Lcen made in Fixtures of 
 
 {. (.,, , pi iPTP 1 tenaut for life. 
 
 lavour 01 tJie executors oi a tenaut tor Jiie, wno appear 
 to be allowed to remove fixtures set up by their testator 
 for the purposes of trade or of ornament or domestic 
 convenience (.r) . But the rule of the common law still Fixtures of 
 
 ,. 1CVP -II jii- ^ ' tenant in fee. 
 
 retams much oi its lorce as between the devisee or heir 
 of a tenant in fee simple and his executor or adminis- 
 trator. Thus a tenant for years may remove ornamental 
 chimney-pieces set up by him during his tenancy (>/) ; 
 but if erected by a tenant in fee simple, they will pass 
 with the house to the devisee or heir (~) . 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 {a). 
 However it seems that pier glasses, fixed by nails, and 
 not let into panels, and hangings fastened up for orna- 
 ment, will now belong to the executor or administrator 
 of a tenant in fee simple as part of his personal 
 estate {b) . 
 
 Where fixtures are demised to a tenant along with the Wlien fixtures 
 house, mill or other building in which they may haj^pen ^'^ "^^^^^ 
 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 (c) ; and if they should 
 
 {x) Laivton v. Zawtoii, 3 Atk. («) Fisher v. Dixon, 12 CI. & 
 
 14. See D'' Eyncourt v. Gregonj, Fin. 312. 
 
 M. R, 36 Law Journ., N. S. 107 ; {h) Squiic v. Mayor, 2 Eq. Ca. 
 
 L. Rep., 3 Eq. 382. Abr. 430, pi. 7 ; S. 0. 2 Frccm. 
 
 (y) Bishop Y. Elliot, Ex. Ch., 249. 
 
 1 Jur., N. S. 962; 24 Law J., (c) Boi/dcll x.JPJIichael, I Cro., 
 
 Exch. 229; 11 Ex. Rep. 113. Mee. & Rose. 177; Hitchman v. 
 
 {£) Bmlleij v. Warde, Aiub. 113. Walton, 4 Mcc. k Wels. 409. 
 
 f 2
 
 20 
 
 OK (HOSES IN POSSESSION. 
 
 be severed from the buildiug by the tenant or any other 
 person, or should be separated by accident, the hmdlord 
 will acquire an immediate right to the possession of 
 them (f/). 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. Fixtures, 
 which would descend with the house or building to the 
 heir of the OTMier of the fee on intestacy, are not in fact 
 his goods and chattels properly so called {e). 
 
 Chattels 
 ves'etable. 
 
 Emblements. 
 
 Chattels vegetable consist, as their name imports, of 
 moveable 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 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 (r;) ; 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 (//). But if a tenant of 
 lands in fee simple should die without having sold or 
 devised them (/), the law then draws a distinction be- 
 tween such vegetable products as are the annual results 
 of agricultujal labour, and such as are not. The former 
 class are called by the name of emblements, and the 
 
 {d) Farrant v. Thompson, 5 
 Bam. & Aid. 826. 
 
 {e) Winn v. Ingilbij, 5 Barn. & 
 Aid. 625. 
 
 (/) Com. Dig. tit. Biens (H). 
 
 (g) Herlalcenden'' s ease, 4 Rep. 
 63 b. 
 
 (A) Wentwoi-th's Office of an 
 Executor, 14th ed. 148; Williams 
 on Executors, pt. 2, bk. 2, oh. 2, 
 sect. 2 ; Marshall v. Green, 1 
 C. P. D. 35. 
 
 («) As to a devisee, see Rudge 
 V. Winnall, 12 Beav. 357 ; Cooper 
 V. Woolft, 2 Hurl. & Norm. 122.
 
 OF CHATTELS AVHICH DESCEND TO THE HKIU. 21 
 
 right to reap tliem belongs to tlie exeoiitor or adminis- 
 trator of the deceased in exclusion of the heir {J^-) ; 
 whilst the latter class descend to the heir along with the 
 land. The reason of the distinction appears to be, that 
 as annual crops are mainly the result of labour incurred 
 at the expense of the owner's personal estate, his per- 
 sonal estate ought to reap the benefit of the crop which 
 results (/). 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 {m). The right to em- 
 blements also belongs to the executor or administrator 
 of a tenant for life {n), and to a tenant at will if dis- 
 missed from his tenancy before harvest (o) . 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 an enactment of the present reign, giving the tenants 
 at rack rent a right to continue to hold until the expia- 
 tion of the current year of their tenancy (p). 
 
 When lands are lot to a tenant for years or for life, if 'Wlien lands 
 no exception is made of the timber, the property in the years or life. 
 timber will still remain in the owner of the inheritance, 
 subject to the tenant's right to have the mast and fruit 
 growing upon it, and the loppings for fuel, and the 
 benefit of the shade for his cattle (<7). Accordingly, all 
 
 (/v) Com. Dig. tit. Biens (G). 14th ed. 
 
 (1) Wentworth's Office of an (o) Ibid. p. 390, 13th ed. ; 404, 
 
 Executor, 14th ed. 147. 14th ed. 
 
 (;w) See Graves V. Weld, 5 Barn. {p) Stat. 14 & 15 Vict. c. 25, 
 
 & Adol. 105; S. C. 2 Nev. & s. 1. See Principles of the Law 
 
 Man. 725. of Real Property, p. 28, 13th ed. ; 
 
 («) Principles of the Law of 29, 14th ed. 
 Real Property, 28, 13th ed. ; 29, {q) Liford's ca-^e, 11 Ecp. 48 b.
 
 22 
 
 OF CHOSES IN rOSSESSION. 
 
 Timber trees. 
 
 Tenant -with- 
 out impeach- 
 ment of 
 waste. 
 
 fruit wliieli may be plucked, or buslies or trees, not 
 bciug titaber, which may be cut or blown down, will 
 belong to the tenant (r) ; but timber trees, which may 
 be cut or blown down, will immediately become thfe 
 property of the owner of the first estate of inheritance 
 in the land, whether in fee simple or in tail (s). Timber 
 trees are oak, ash, and elm in all places ; and in some 
 particular parts of the country, by local custom, where 
 other trees are generally used for building, they are 
 for that reason considered as timber {t). But if the 
 tenant should be a tenant icitJwut impeachment of waste 
 [sine impetitione vasti), timber cut down by him in a 
 husband-like manner will become his own property 
 when actually severed {u), but not before (.r) ; for the 
 words " without impeachment of waste " imply a release 
 of all demands in respect of any waste which may be 
 committed (p). If, however, the words should be 
 merely icithout being impleaded for waste, the property 
 in the trees when cut would still remain in the landlord, 
 and the action only would be discharged, which he 
 might otherwise have maintained against the tenant 
 for the waste committed by the act of felling the 
 timber (s) . 
 
 Animals /er(? 
 natitrce. 
 
 Ammsls ferce naturce, or wild animals, including game, 
 
 (/•) Channon v. Patch, 5 Barn. 
 & Cress. 897 ; S. C. 8 Dowl. & 
 Ey. 651 ; Berriman v. Peacock, 9 
 Bing. 384 ; S. C. 2 Moo. & Scott, 
 524 ; Pidgley v. EaivUng, 2 Coll. 
 275. 
 
 («) Herlakenden'' s case, 4 Rep. 
 63 a; Whiffiehl v. Bewitt, 2 P. 
 Wms. 240; 3 P. Wms. 268; lush- 
 ington v. Boldero, 15 Beav. 1 ; 
 Sony wood v. Sony wood, M. R., 
 L. E., 18 Eq. 306, 307, 308, ex- 
 plaining Earl C'oidcy v. WcUeslcy, 
 L. R., 1 Eq. 656; 35 Beav. 635. 
 
 See Lowndes v. Norton, V.-C. H., 
 6 Ch. D. 139. 
 
 (i!) 2 Blac. Com. 281. 
 
 («) Letvis Boivles'' case, 11 Rep. 
 
 82 b ; Baker v. Sebright, 13 Ch, 
 D. 179. See Principles of the 
 Law of Real Property, 25, 13th 
 ed. ; 26, 14th ed. 
 
 (.r) Chohnelcy v. Paxton, 3 Bing. 
 207 ; 10 Barn. & Cress. 564. 
 (y) 11 Rep. 82 b. 
 {z) Walter Idle''s case, 11 Rep. 
 
 83 a. 
 
 I
 
 OF CHATTELS AVIIICH DESCEND TO THE HEIR. 23 
 
 are exceptions from the rules wliicli relate to other move- 
 ables, on the ground that until they are caught there is 
 no property in them. If therefore the owner of land in 
 fee simple should die, the game on his. land, or the fish 
 in any river or pond upon the land, will not belong to 
 his executor or administrator (n) . And if a man should 
 have a park or warren, he has no true property in the 
 deer, conies, pheasants, or partridges ; but they belong 
 to him only " ratione privilegiiiov his game and pleasure 
 so long as they remain in the privileged place" (&). 
 But a property in wild animals may be obtained by 
 reclaiming or catching them {propter industriam), or by 
 reason of their being unable to get away {propter 
 impotcntiam) (c). Thus deer, even though in a legal 
 park, may be so tame and reclaimed as to pass to the 
 executors of the owner of the park on his decease {d) ; 
 so rabbits in a hutch, fish in a box, and young pigeons 
 in a dove-house, unable to fly, will belong to the exe- 
 cutor or administrator of the owner, and not to his heir. 
 It appears to have been formerly thought that hawks Hawks and 
 and hounds were not subjects of personal property, but ^^^ ^' 
 would descend with the lands to the heir; but this 
 opinion is not now law. " For," observes the author of 
 the Office of an Executor (c), " although they be for the 
 most part but things of pleasure, that hindereth not but 
 they may be valuable as well as instruments of music, 
 both tending to delight and exhilarate the spirits ; a 
 cry of hoimds hath to my sense more spirit and vivacity 
 than any other music." 
 
 The occupier of land for the time has now the solo Right to kill 
 
 («) Co. Litt. 8 a ; T/ie case of bk. 2, cli. 2, sect. 1. 
 
 Swans, 7 Rep. 17 b. {d) Morgan v. The Earl of 
 
 {b) 7 Rep. 17 b; Year Book, Abergavenny, 8 C. B. 768. 
 
 4 Hen. VI. 55 b, 56 a ; F. N. B. {e) Wentworth's Office of an 
 
 87, n. («). Executor, 143, 14tli ed. The au- 
 
 (c) 2 Blac. Com. 391, 394 ; thor of this work is supposed to 
 
 Williams on Executors, pt. 2, have been Mr. Justice Doddridge.
 
 24 
 
 OF CHOSES IN POSSESSION. 
 
 and take 
 game. 
 
 The Ground 
 Game Act, 
 1880. 
 
 riglit of killiug and taking tlie game upon the land, 
 unless such right he reserved to the landlord or any 
 other person (/). And, as to hares and rabhits, called 
 ground game, the Ground Game Act, 1880 (g), now 
 provides (//), that every occupier of land shall have, as 
 incident to and inseparable from his occupation of the 
 land, the right to kill and take ground game thereon, 
 concmTently with any other person who may be en- 
 titled to kill and take ground game on the same land : 
 Provided, that the right conferred on the occupier by 
 this section shall be subject to the following limita- 
 tions : 
 
 (1.) The occupier shall kill and take ground game 
 only by himself or by persons duly authorized 
 by him in writing : 
 (a.) The occupier himself and one other per- 
 son a,uthorized in writing by such occu- 
 pier shall be the only persons entitled 
 under the Act to kill ground game with 
 firearms : 
 (b.) No person shall be authorized by the 
 occupier to kill or take ground game, 
 except members of his household resi- 
 dent on the land in his occupation, 
 persons in his ordinary service on such 
 land, and any one other person bona 
 fide employed by him for reward in the 
 taking and destruction of ground game : 
 (c.) Every person so authorized by the occu- 
 pier, on demand by any person having 
 a concurrent right to take and kill the 
 ground game on the land, or any person 
 authorized by him in writing to make 
 such demand, shall produce to the person 
 
 (/) Stat. 1 & 2 Will. IV. c. 32. 
 See, as to poacliing, stat. 25 & 26 
 Vict. c. 114 : and as to wild fowl, 
 
 stat. 39 & 40 Vict. c. 29. 
 (ff) Stat. 43 & 44 Vict. c. 47. 
 (/O Sect. 1.
 
 OF CHATTKI.S ^^ IIK II DFX KM) TO THE IIKIK. 25 
 
 SO demanding the document by -which 
 he is authorized, and in default he shall 
 not be deemed to be an authorized per- 
 son : 
 (2.) A person shall not be deemed to be an occupier 
 of land for the purposes of the Act by reason 
 of his having a right of common over such lands, 
 or by reason of an occupation for the purpose 
 of grazing or pasturage of sheep, cattle or 
 horses, for not more than nine months : 
 (3.) In the case of moorlands, and vminclosed lands 
 (not being arable lands), the occupier and the 
 persons authorized by him shall exercise the 
 rights conferred by this section only from the 
 eleventh day of December in one year until the 
 thirty-first day of March in the next year, both 
 inclusive ; but this provision shall not apply to 
 detached portions of moorlands or uninclosed 
 lands adjoining arable lands, where such de- 
 tached portions of moorlands or uninclosed 
 lands are less than twenty-five acres in extent. 
 "Where the occupier of land is entitled otherwise than Occupier en- 
 in pursuance of the Act to kill and take ground game *\^o^'^d° j^/'^ 
 thereon, if he shall give to any other person a title to on land in his 
 kill and take such ground game, he shall nevertheless to divcstTim- 
 retain and have, as incident to and inseparable from ^*^^^ wliolly of 
 
 1 i- J^ • 1 J y 1 Ml 11 sucli right. 
 
 such occupation, the same riglit to kill and take ground 
 
 game as is declared by section one of the Act. Save as 
 aforesaid, but subject as in section six hereafter men- 
 tioned, the occupier may exercise any other or more 
 extensive right which he may possess in respect of 
 ground game or other game, in the same manner and to 
 the same extent as if the Act had not passed (?'). 
 
 Every agreement, condition, or arrangement, which All agree- 
 purports to divest or alienate the right of the occupier t?aventk)n of ' 
 
 (0 Stat. 43 & 44 Vict. c. 47, s. 2.
 
 26 OF CHOSES IN POSSESSION. 
 
 right of occu- as declared, given, and reserved to liim by the Act, or 
 
 pier to destroy I'r-j ^ • t i • • i 
 
 ground "-ame wnich gives to siicli occupier any advantage m consicie- 
 ■^'oi'l- ration of his forbearing to exercise such right, or im- 
 
 poses upon him any disadvantage in consequence of his 
 exercising such right, shall be void (k). 
 Exemptions The occupier and the persons duly authorized by him 
 
 licences. ^^ aforesaid, shall not be required to obtain a licence to 
 
 kill game for the purpose of killing and taking ground 
 game on land in the occupation of such occupier, and the 
 occupier shall have the same power of selling any 
 ground game so killed by him, or the persons authorized 
 by him, as if he had a licence to kill game : Provided 
 that nothing in the Act contained shall exempt any 
 person from the pro\^sions of the Gun Licence Act, 
 1870 (/). 
 Saving clause. Where at the date of the passing of the Act the right 
 to kill and take ground game on any land is vested by 
 lease, contract of tenancy or other contract bond fide 
 made for valuable consideration in some person other 
 than the occupier, the occupier shall not be entitled 
 under the Act until the determination of that contract, 
 to kill and take ground game on such land (m). 
 
 For the purposes of the Act, a tenancy from year to 
 year, or a tenancy at will, shall be deemed to determine 
 at the time when such tenancy would by law become 
 determinable if notice or warning to determine the 
 same were given at the date of the passing of the Act. 
 
 Nothing in the Act shall affect any sj)ecial right of 
 killing or taking ground game to which any person 
 other than the landlord, lessor or occupier, may have 
 become entitled before the passing of the Act by virtue 
 of any franchise, charter or Act of Parliament. 
 Prohibition of No person having a right of killing ground game 
 ,v!^^!,!^^?!^' under the Act or otherwise shall use any firearms for 
 
 spring 
 
 {k) Stat. 43 & 44 Vict. c. 47, (0 Sect. 4. 
 
 3. (w) Sect. 5.
 
 of killing 
 fame. 
 
 OF fllATl'EI.S ANIIICir DKSCKM) TO "I'lIK IIKIU. 27 
 
 the purpose of killing groimd game between the explra- traps abovo 
 tion of the first hour after sunset and the commencement ^^^^^^ ' ^^ 
 of the last hour before sunrise, and no such person 
 shall, for the purpose of killing ground game, employ 
 spring traps, except in rabbit holes, nor employ poison ; 
 and any person acting in contravention of this section 
 shall, on summary conviction, be liable to a penalty not 
 exceeding two pounds (n). 
 
 "Where a person who is not in occupation of land has As to non- 
 the sole right of killing game thereon (with the excep- haviiif,' right 
 tion of such right of killing and taking ground game 
 as is by the Act conferred on the occupier as incident to 
 and inseparable from his occupation), such person shall, 
 for the purpose of any Act aut^rizing the institution 
 of legal proceedings by the owner of an exclusive right 
 to game, have the same authority to institute such 
 proceedings as if he were such exclusive owner, without 
 prejudice nevertheless to the right of the occupier 
 conferred by the Act (o). 
 
 Where the landlord has reserved to himself the right 
 of killing game, he may authorize any person or persons, 
 who shall have obtained licences to kill game(;;), to 
 enter upon the land for the purpose of pursuing and 
 killing game thereon (q) . And the lord of any manor Lord of a 
 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 (r) . 
 
 When game or other wild animals were killed on any Property ia 
 land by any other person than the rightful owner, the s^me. 
 
 («) Stat. 43 & 44 Vict. c. 47, (7) Stat. 1 & 2 WiU. IV. c. 32,. 
 
 8. 6. s. 11. 
 
 (0) Sect. 7. (>•) Sect. 10. 
 
 (/;) Stat. 23 Sc 24 Vict. c. 90.
 
 28 OF CHOSES IN POSSESSION. 
 
 law, witli respect to the property iu the game, was for- 
 merly as follows : If a man started any game within his 
 own groimds 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 con- 
 tinued in the owner of the chase or warren ; this pro- 
 perty 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 fhe first ground, because the pro- 
 perty 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 (.v) . And this appears 
 to be still the laAV with respect to wild animals which 
 are not game (t). But with respect to game an altera- 
 tion appears to have been made by the Grame Act (u), 
 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 (.v) . 
 
 (s) 2 Bl. Com. 419; Church- 844 ; 11 Jur., N. S. 701 ; affirmed, 
 
 ivard V. IStuddi/, 14 East, 249. 11 H. of L. Cas. 621 ; The Queen 
 
 The last proposition is, however, v. Read, 3 Q. B. D. 131 ; 26 W. 
 
 doubted by Lord Chelmsford in R. 283. 
 
 Blades v. Hir/gs, 11 H. of L. Cas. («) Stat. 1 & 2 Will. IV. c. 32. 
 
 639. (.*:) Sect. 36 ; i?(>y v. IJarl of 
 
 {t) See Blndes v. Riffffs, 12 C. Lonsdale, 1 H. & N. 923. 
 B., N. S. 501 ; 13 C. B., N. S.
 
 ( 29 ) 
 
 CHAPTER II. 
 
 OF TROVER, BAILMENT AND LIEN. 
 
 Having now considered those moveable articles of 
 property whicli form exceptions to the rules by which 
 chattels personal are in general governed, let us proceed 
 to notice some cii'cumstances in which chattels personal 
 may be placed, so as to form not real but apparent ex- 
 ceptions to the primary rule already noticed («), that 
 personal projoerty is essentially the subject of absolute 
 ownership, and cannot be held for any estate. The pro- 
 perty in goods can only belong to, or be vested in, one 
 person at one time : in this respect it resembles the seisin 
 or feudal possession of lands {b). Lands, however, may 
 be so convej'^ed that several persons may possess in them, 
 at the same time, several distinct vested estates of free- 
 hold, one of them being in possession, and the others 
 in remainder, or the last perhaps being in reversion (c). 
 But the law knows no such thing as a remainder or 
 reversion of a chattel. It recognizes only the simple Property ia 
 jyropertij in goods, coupled or not with the right of im- ^*^° ^" 
 mediate possession. This simple principle of law, if care- 
 fully borne in mind, will serve to explain many points 
 which would otherwise appear difficult or even contra- 
 dictory. It must be remembered, however, that it does 
 not strictly apply to the moveable articles noticed in our 
 first chapter, which, from their connection with the land, 
 are often governed by the principles of real, rather than 
 those of personal property. 
 
 («) Ante, p. 8. 146, 14th ed. 
 
 (4) See Priuciples of tlie Law {c) Ibid. p. 252, 13th ed. ; 264 
 
 of Real Property, 142, 13th ed. ; —267, 14th ed.
 
 30 
 
 or CUOSEb IN POSSESSION. 
 
 Where an 
 aiticle is lost. 
 
 Action of 
 trover and 
 conversion. 
 
 1. Wlien the property in goods is coupled with the 
 possession of them, the ownership is of coui'se complete. 
 This is the common and usual case of the ownership of 
 chattels personal : the owner knows that the goods are 
 his own, and in his own possession, and that is sufficient 
 for him. Circumstances may, however, arise to change 
 this state of things. An article may be lost. In this 
 case the owner still retains his property in the thing, but 
 he has lost the possession of it. The property, however, 
 which still remains in him, entitles him to the possession 
 of the article, whenever he can meet with it ; or, in legal 
 phraseology, the property draws with it the right of pos- 
 session (d). If therefore another person should find the 
 article lost, he will have no right to convert it to his own 
 use, if he has any means of knowing to whom it be- 
 longed, but must on demand deliver it up to the rightful 
 owner, in whom the property is already vested. If he 
 should refuse to do so, such refusal will argue that he 
 claims it as his own, and mil accordingly be evidence of 
 a conversion of the thing to his own use (e). For the 
 wrong or trespass thus committed, a specific remedy has 
 been provided by the law, in the shape of an action of 
 trover and conversion, or more shortly an action of trover, 
 which is one of those actions comprised -uithin the tech- 
 nical class of tresjjass on t/ie case. The word trover is 
 from the French trouver, to find ; and the word con- 
 version is added, from the conversion of the goods to the 
 use of the defendant being the gist of the action thus 
 brought against him. That the defendant should have 
 found the article lost is not his fault, but his conversion 
 of it to his own use is a trespass, and renders him liable 
 to the action we are now considering. This action ac- 
 cordingly is now constantly brought to recover damages 
 for withholding the possession of goods whenever they 
 have been wrongfully converted by the defendant to his 
 
 [d] 2 Wms. Saimders, 47 a. 
 
 [e) Ibid. 47 e ; Agar v. Lisle, Hob. 187 ; Bac. Abr. tit. Trover, (B).
 
 OF TROVKK, BAILMENT AND MEN. 31 
 
 own use, "witliout regard to the means, whether by find- 
 ing or otherwise, by which the defendant may have 
 become possessed (/). The Common Law Procedm-e 
 Act, 1852 (g), however, provided [h) that the statement 
 of losing and finding, and all other immaterial state- 
 ments, should be omitted. And in tlie schedule to the 
 Act (/) the form of pleading given states that the de- 
 fendant converted to his own use, or wrongfully deprived 
 the plaintiff of the use and possession of the plaintiff's 
 goods ; that is to say, iron, hops, household furniture, 
 as the case may be. And in the Supreme Court of 
 Judicature Act, 1875 (A-), and the Rules of the Supreme 
 Court, 1883 (/), the form given is, "The plaintiff's 
 claim is for wrongfully depriving plaintiff of goods, 
 household furniture, &c." This action can be main- 
 tained only when the plaintiff has been in possession of 
 the goods (m), or has such a property in them as draws to 
 it the right to the possession. If the goods have been 
 wrongfully converted by the defendant to his own use, 
 the plaintiff will succeed, if he should prove either way 
 his own right to the immediate possession of the 
 goods (;/) ; if he should not prove such right, he will 
 fail (o). The property in the goods is that which most 
 usually draws to it the right of possession ; and the right 
 to maintain an action of trover is therefore often said to 
 depend on the plaintiff's property in the goods; the right 
 of immediate possession is also sometimes called itself a 
 
 (/) 3 Elac. Com. 153. («) Wilbraham v. Snow, 2 
 
 {g) Stat. 15 & 16 Vict. c. 70. Saund. 47 ; Armory v. Dclamirie, 
 
 {h) Sect. 49. 1 Str. 505 ; Roberts v. Wyatt, 2 
 
 (i) Schedule E. 28. Tauut. 268; Lerjg v. Evans, 6 
 
 [k) Stat. 38 & 39 Vict. c. 77, Mce. & TV. 36 ; Stephen ou 
 
 Appendix A., pt. 2, s. 4. Pleading, 354, 5th ed. 
 
 [1) Appendix A., pt. 3, s. 4. (o) Gordon v. Harper, 7 T. Rep. 
 
 (»«) Addison v. Sound, 4 Ad. & ; Ferguson v. Cristall, 5 Eing. 
 
 Ell. 799 ; S. C. 6 Nev. & Man. 305 ; Leake v. Lovcdag, 4 Man. & 
 
 422 ; Brooke v. Mitchell, 6 N. C. Gr. 972 ; Bradley \. Copley, 1 C. B. 
 
 349 ; S. C. 8 Scott, 739. 685 ; Lord v. Trice, L. R., 9 Ex. 
 
 54.
 
 32 OF CIIOSKS IX POSSESSIOX. 
 
 special kind of property ( ;;) ; but these expressions sliould 
 not mislead the student. The action of trover tries only 
 the right to the immediate possession, which, as we shall 
 now see, may exist apart from the inopertij in the goods. 
 
 If the finder For let US suppose that the finder of the article lost, 
 Thrived, he ' whilst ignorant of the true owner, should have been 
 may maintain wrongfully deprived of it by a third person. In this case 
 the owner being absent, the finder is evidently entitled 
 to the possession of the thing ; and he will accordingly 
 succeed in an action of trover brought by him against 
 the wrong-doer {(j) . Here the property in the thing 
 which was lost evidently belongs still to the original 
 owner; but the right of possession is in the finder, until 
 the owner makes his appearance. The owner's property 
 then draws with it the right of possession ; and should 
 the finder convert the article found to his own use, he in 
 his turn will be liable to an action of trover in respect of 
 the owner's right of possession. Thus, so far as we have 
 already proceeded, we have found nothing more than a 
 simple property in goods, existing with or without the 
 right of possession. The action of trover tries the right 
 of possession, and may or may not determine the pro- 
 perty. For, strange as it may appear, there is no action 
 in the law of England by which the property either in 
 goods or lands is alone decided. 
 
 Bailment. 2. But the article in question, instead of being lost 
 
 and found, may become the subject of bailment. Bail- 
 ment is defined by Sir William Jones, in his admirable 
 and classical Treatise on the Law of Bailment (/•), to be 
 a delivery of goods in trust, on a contract expressed or 
 
 {p) Eogers v. Kcmiaij, 9 Q. B. Hawkesivorth, 15 Jur. 1079. See 
 
 592. Buckky v. Gross, 3 Best & Smith, 
 
 {q) Arniori/ v. Delamirie, 1 Str. 566 ; Bourne v. Fosbroole, 18 C. 
 
 505; 1 Smith's Leading Cases, B., N. S. 515. 
 lol ; 374, Sth ed. ; Bridges v. (r) P. 117.
 
 OF TROVER, 15 AILMENT AND LIEN. 33 
 
 implied that the trusts shall be duly executed, and the 
 goods redelivered as soon as the trust or use for which 
 they were bailed shall have elapsed or be performed. 
 The term bailincut is derived from the French word 
 hailler, to deliver. The person who delivers the goods 
 is called the bailor ; the person to whom they are de- 
 livered the bailee. The trusts on which goods may be 
 delivered are various. The principal are the following. 
 They may merely be lent to a friend, or left in the cus - 
 tpdy of a warehouseman or wharfinger, or they may be 
 entrusted to a carrier__to convey to a distance, or to an 
 agent or factor to sell ; or they may be pawned for 
 money lent, with or without a power to sell them {h), 
 or let out to hire_(/). In all cases of bailment, however, Property 
 the simple rule still holds, that the properiy in goods tf™bailor'^ 
 can belong to one party only ; and when any goods are 
 hailed, the property still remains in the bailor {u). The 
 possession of the goods, however, is evidently for the 
 tipie being with the bailee. But if, while goods are in 
 bailment, a thiixl person should become possessed of 
 them, and should wrongfully convert them to his own 
 use, the right to recover possession will in some degree 
 depend .upon the nature of the bailment. 
 
 If the bailment should be what is called a simple bail- Simple bail- 
 meni^ as in the four first instances above mentioned, that ^^^ ' 
 is, a bailment which does not confer on the bailee a right 
 to exclude the bailor from possession, in such a case 
 either the bailee or the bailor may maintain an action of 
 trover against the wrong-doer U) . The bailee may main- Bailee or 
 
 bailor may 
 
 (s) See Figot v. Cubletj, 15 C. Raym. 909, 912 ; 1 Smith, L. C, 
 
 B., N". S. 701 ; Williams's Con- 199, 8th ed. 
 
 veyancing Statutes, 138, 164 — («) Franklin v. Xeate, 13 Mee. 
 166. The law with respect to & W. 481 ; see Williams's Con- 
 pawnbrokers is now contained in veyancing Statutes, 164 — 166. 
 the Pawnbrokers Act, 1872, stat. [x) Nkholls v. Bastard, 2 C, 
 35 & 36 Vict. c. 93. M. & R. 659 ; Mandcrs y. Wil- 
 
 [t) See Coggs v. Bernard, 2 Ld. Hams, 4 Exoh. Rep. 339. 
 
 W.P.P. 1)
 
 a-i 
 
 OF CHOSES IX POSSESSION. 
 
 maintain 
 trover. 
 
 Pawnee or 
 hirer can 
 alone main- 
 tain trover. 
 
 lain tliis action, because tlic action depends only on the 
 right to the possession which the bailee has by virtue of 
 the bailment made to him (//) ; and the bailor may also 
 maintain the action, because his property in the goods 
 draws with it the right of j)ossession, and the bailment 
 is not of such a kind as to vest this right in the bailee 
 solely. The bailee is rather in the situation of servant 
 to the bailor, and the possession of the one is equivalent 
 in construction of law to the possession of the other. 
 But as it would be imjust that the wrong-doer should 
 pay damages twice over for Ids offence, the recovery of 
 damages either by bailee or bailor deprives the other 
 of his right of action (z). If, however, the bailment 
 should not be of the simple kind, but should confer on 
 the bailee the right to exclude the bailor from the pos- 
 session, here, though the property in the goods still 
 remains in the bailor, the bailee alone can maintain an 
 action of trover against any person who may have taken 
 the goods and converted them to his o"^ti use. Thus 
 the pawnee or hirer of goods can alone maintain an 
 action of trover so long as the pawning or hiring con- 
 tinues {a) . Here again we have the property in the 
 goods still vested in one person, the bailor, drawing with 
 it, in the case of simple bailment, the right to the pos- 
 session, and in the case of other bailments, temporarily 
 disconnected from that right. If, however, any bailee, 
 whatever be the nature of his bailment, should convert 
 the goods bailed to him to his own use, he will by that 
 act have determined the bailment : the property in the 
 
 (y) Sutton V. Bud-, 2 Taunt. 
 302. 
 
 (c) Eac. Abr. tit. Trover (C). 
 
 {a) Gordon v. Harper, 7 T. R. 
 9; Burton v. Hughes, 2 Bing.173 ; 
 Ferguson v. Crista?!, 5 Bing. 305 ; 
 Tain v. Whitalcer, Ry. & Moo. 99. 
 But a pawnor, or his assignee, 
 may maintain an action of trover 
 
 against the pawnee to recover 
 the possession of the goods 
 pledged, after payment or tender 
 of the amount due to the latter 
 for principal, interest and costs ; 
 Walter v. Smith, 5 B. & A. 439 ; 
 Fran/din v. Keate, 13 M. & W. 
 431; see Williams's Conveyanc- 
 ing Statutes, 164—166.
 
 or TROVER, IJAU.'MENT AMI LIEN. 35 
 
 bailor will draw to it tlio right to immediate possession, 
 and tlie bailor may accordingly recover damages for the 
 act by an action of trover (b) . 
 
 3. The last case requiring notice in which goods may Lien, 
 be in the possession of a person who has no property in 
 them is the case of the existence of a lien on the goods. 
 A lien is the right of a person in the possession of goods 
 to retain them until a debt due to him has been satis- 
 fied (r). A lien is either particuldr or fjcncral. A par- Purticular or 
 ticular lien is a right to retain the particular goods in ocneral. 
 respect of which the debt arises. A general lien is a 
 right to retain goods in respect of a general balance of 
 an account. The former kind of lien is favoured in 
 law ; but the latter having a tendency to prefer one 
 creditor above another, is taken strictly {d) . A particular Particular 
 lien is given by the common law over goods which a ^®"- 
 person is compelled to receive ; thus carriers (e) and 
 innkeepers (/) have a lien on the goods in their care ; 
 although an innkeeper cannot detain his guest's person, 
 or take his coat off his back, to secui'e payment of his 
 bill {(j). A particular lien is also given by law to every 
 person who by his labour or skill has improved or altered 
 an article entrusted to his care : thus a miller has a lien 
 on the flour he has ground for the cost of grinding {h) ; 
 
 (i) Cooper y. Willomatt, 1 C. {g) Simbolf v. Alford, ZMee. Sc 
 
 B. 672; Johnson v. Stear, 15 C. "Wels. 248. The lieu of innkeepers 
 
 B., N. S. 330 ; Figot v. Cuhlcy, ou the goods of their guests is 
 
 15 C. B., N. S. 701. now regulated by stat. 2G & 27 
 
 (c) 2 East, 235 ; 2 Kosc, 357 ; Vict. c. 41 ; and the Innkeepers' 
 
 Smith's Compendium of Mer- Act, 1878, stat. 41 & 42 Vict, 
 
 cantile Law, 534, 5th ed. ; 563, c. 38, now gives them a power of 
 
 6th ed. sale in certain cases over goods 
 
 {d) 3 Bos. & Pul. 494. and chattels deposited with them 
 
 [e] Skinner v. IfpsJiaic, 2 Lord or upon the premises occupied by 
 
 Raym. 752. them. 
 
 (/) Tltompsou V. Lacey, 3 B. & (/() Ex parte Ockendcn, 1 Atk. 
 
 AH. 283 ; Threfall v. JBoricick, L. 235. 
 R., 7 Q. B. 711. 
 
 1)2
 
 36 
 
 OF CIIOSES IN POSSESSION. 
 
 Freight. 
 
 and a shipwright has a lien on a sliip entrusted to him 
 to repair for the costs of repairing it (i). So a lien may 
 be claimed for training a horse, because he is improved 
 by the labour and skill thus bestowed upon him (j) ; 
 but no lien can arise merely for his keep {k) , unless he 
 has been kept by an innkeeper, who is compelled to take 
 him in (/). A lien on goods is not sufficient to warrant 
 the sale of them {)n), nor does it authorize the possessor 
 to charge for their standing [ii). A particular lien 
 also arises in the case of salvage, or rescuing a ship or 
 its lading from the perils of the sea or the queen's 
 enemies, for the trouble and risk incurred (o) ; but this 
 kind of lien has been modified by the Merchant Ship- 
 ping Act, 1854, which provides for the appointment of 
 public receivers of all wreck, into whose hands any 
 person, not being the owner, who finds or takes pos- 
 session of any wreck, is bound to deliver it as soon as 
 possible (p). The lien of a shipowner for freight is 
 now regulated by the Merchant Shipping Act Amend- 
 ment Act, 18G2 (q). 
 
 General lien A general lien, when it does not arise by express 
 contract, or from a contract implied by the course of 
 
 (i) Franklin v. Hosier, 4 B. & 
 Aid. 341. 
 
 [j) Bevan v. Walters, 1 Moo. & 
 Mai. 236. 
 
 {k) Wallace v Woodfjate, 1 Ry. 
 & Moo. 193. See Sanderson v. 
 Bell, 2 Cro. & Mee. 304, 311; 4 
 Tyr. 244, 252. 
 
 {I) Johnson v. Hill, 3 Stark. 
 172; Allen v. Smith, 12 C. B., 
 N. S. 638, affirmed in Ex. Cham., 
 9 Jur., N. S. 1284; 11 W. R. 
 440. 
 
 {ni) Thames Iron Works Company 
 V. Patent Derrick Compamj, 1 John. 
 & H. 93. 
 
 {n) British Empire Shipping 
 Company v. Somes, 1 E., B. & E. 
 353. 
 
 (o) Hartfort v. Jones, 1 Lord 
 Raym. 393; Baring v. Bay, 8 
 East, 57. 
 
 {p) Stat. 17 & 18 Vict. c. 104; 
 amended by stats. 18 & 19 Vict. 
 0. 91 ; 24 Vict. c. 10; 25 & 26 
 Vict. c. C3 ; 34 & 35 Vict. c. 110 ; 
 35 & 36 Vict. c. 73 ; 36 & 37 Vict, 
 c. 85 ; 38 & 39 Vict. c. 88 ; 39 & 
 40 Vict. c. 80 ; and 43 & 44 Vict. 
 0. 22. 
 
 {q) Stat. 25 & 26 Vict. c. 63, 
 ss. 66—78.
 
 lien. 
 
 OK TUON 1:K, 15A1LMKM' AM) l.IEX. 37 
 
 dealing between the parties (/•), accrues in consequence 
 of the custom of some trade or profession ; and it may 
 be local also, that is, confined to some particular place (s) . 
 It obtains, in many trades, such as wharfingers (^), 
 dyers (?/), calico printers (j"), factors (y), policy brokers (c), 
 and bankers (a) , and perhaps also common carriers (/>) . 
 Solicitors have also a lien on all the deeds and documents .Solicitor's 
 of their clients in their possession for their professional 
 charges generally (r) ; but this doctrine is to be taken 
 in connection with the peculiar natiu'e of title deeds, 
 which being the sinews of the land, follow the seisin 
 of it, and may therefore be held by the client only for 
 a limited interest. Thus, if a tenant for life should 
 leave the title deeds of the land in the hands of his 
 solicitor, the lien of the solicitor for his professional 
 charges would be co -extensive only with his client's 
 interest, and on the client's decease the solicitor would 
 be bound to deliver up the deeds to the remainder-man, 
 although his charges might remain unpaid (f/). So, if 
 the client should be a mortgagee, the soKcitor having 
 the deeds would be bound to deliver them to the mort- 
 gagor, on the reconveyance of the property, on payment 
 to the mortgagee of all principal and interest ; for on 
 such reconveyance the mortgagee ceased to have any 
 
 (r) Simond v. Ilihhert, 1 Riis. [a) Davis v. Bowshcr, 5 T. R. 
 
 & Myl. 719. 488 ; Braudao v. Burnett, 3 C. B. 
 
 (s) HoMerness v. CoUinson, 7 519, 530. 
 Bam. & Cress. 212. (i) See Rushforth v. Hadfteld, 6 
 
 {t) Naylor v. Mangles, 1 Esp. East, 519 ; 7 East, 224 ; Aspinall 
 
 109. V. richford, 3 Bos. & Pul. 44, 
 
 (m) Savill V. Barchard, 4 Esp. note. As to railways, see stat. 
 
 53. See, however, Close v. Water- 8 & 9 Vict. c. 20, s. 97. 
 house, 6 East, 523, n. (f) Stevenson v. Blalcelock, 1 
 
 (.r) Weldon\. Gould, 3 Esp. 268. Mau. & Sel. 535 ; Ex parte Ster- 
 
 (y) Houghton v. Matthews, 3 ling, 16 Ves. 258 ; Ex parte Fem- 
 
 Bos. & Pul. 488 ; Cowell v. Simp- herton, 18 Ves. 282. 
 son, 16 Ves. 280. {d) Bavies v. Vernon, 6 Q. B. 
 
 {z) Man V. Shiffncr, 2 East, 523. 413, 447.
 
 38 OF CI [OSES IX POSSESSION. 
 
 interest iii the lauds (('). And in like manner if the 
 client should be a mortgagor, the solicitor would have 
 no right to retain the deeds as against the prior claim 
 of the mortgagee (/) : and if the client should be a 
 trustee, the deeds must be given up for the purposes of 
 the trust {g) . This lien also extends only to charges 
 strictly professional (Ii), and to documents in the posses- 
 sion of the solicitor in his professional character (/) ; 
 but it has been held that such lien is assignable, 
 together with the debt and documents, to a third person 
 not a solicitor (k) . A mere certificated conveyancer has 
 New enact- no general lien on the documents in his hands (/). It 
 soUdtor'sUen ^^ ^^^ provided that in every case in which a solicitor 
 shall be employed to prosecute or defend any suit, 
 matter or proceeding in any court of justice, it shall be 
 lawful for the court or judge, before whom any sach 
 suit, matter or proceeding has been heard, or shall be 
 depending, to declare such solicitor entitled to a charge 
 upon the proj)erty recovered or preserved ; and upon 
 such declaration being made, such solicitor shall have a 
 charge upon and against, and a right to payment out 
 of the property, of whatsoever nature, tenure or kind 
 the same may be, which shall have been recovered or 
 preserved through the instrumentality of any such 
 solicitor, for the taxed costs, charges and expenses of or 
 in reference to such suit, matter or proceeding {m). 
 
 (e) TFakeJicldv. JS^eivbon, 6Q. B. (i) Champernown v. Scott, 6 
 
 276. Madd. 93 ; Balch v. Symes, T. & 
 
 (/) Smithy. Chichester, 2 Dr. & Russ. 87. 
 
 "War. 393 ; Blunden v. Besart, id. [k) Bull v. Faulkner, 2 De G. & 
 
 405 ; PeJhj v. Wathen, 7 Hare, S. 772, sed qii. 
 
 351 ; 1 De Gex, Mac. & Gord. 16. (l) Sollis v. Claridge, 4 Taunt. 
 
 ((?) Baker \. Henderson, 4 Sim. 807; SteadmanY. Hockleij, 15Mee. 
 
 27. & Wels. 553. 
 
 {h) The King v. Sankeij, 5 Ad. (;») Stat. 23 & 24 Vict. c. 127, 
 
 & Ell. 423 ; Worrell v. Johnson, 2 s. 28 ; Wilson v. Eood, 3 Hurlst. 
 
 Jac. & Walk. 218. & Colt. 148 ; Eaijmes v. Cooper,
 
 OF TK0VK1{, liAll.MENT AM) J.IHN. 39 
 
 Lien, then, of wliatever kind, is nierolj a riglit to 
 retain the possession of the goods. This right of pos- 
 session enables the person who has been in possession 
 by virtue of the lien to maintain an action of trover 
 for the ffoods (n) : but the propertu in the goods still Property of 
 remains with the owner ; and ii the person having the to lien is in 
 lien should give up the possession of the goods, his lien *^^° owner, 
 will be lost (o) ; the owner's property in them w^ill draw 
 to it the right of possession, and enable him to maintain 
 an action of trover {p). And if the person having the How lien is 
 lien should take a security for his debt, payable at a 
 distant day, his lien would on that account be lost, as it 
 would be unreasonable that he should detain the goods 
 till such future time of payment {q) ; and in this case 
 also an action of trover may bo maintained by the owner 
 of the goods, by virtue of the right of possession now 
 accrued to him in respect of his property (>•) . It 
 appears however that, if goods be wi'ongfully taken 
 out of the possession of a person having a lien thereon, 
 without his consent, the owner of the goods cannot 
 maintain an action of trover for them ; because in such 
 a case the owner has not the right to the possession of 
 the goods (••<) . 
 
 When goods are taken under a distress for rent, the Distress for 
 property in the goods still remains in the owner, until a 
 sale is made pursuant to the statute {t) by which a sale 
 is authorized [u). 
 
 33 Beav. 431 ; Bailey v. BlrchaU, (q) Coivcll v. Simpson, 16 Ves. 
 
 2 Hem. & Mil. 371 ; BttUnj v. 275. 
 
 Bulky, V.-C. B., 26 W. R. 310: (r) Ilewison v. Guthrie, 2 New 
 
 affirmed on appeal, L. Rep., 8 Cas. 756, 759. 
 
 Ch. D. 479; Catloiv v. Catlou; (*) Lord v. Price, L. R., 9 Ex. 
 
 L. Rep., 2 C. P. D. 362. 54. 
 
 (m) Legg v. Evans, 6 Mee. & {t) Stat. 2 Wm. & Mary, Sess. 
 
 Wels. 36; see Bramwell, B., Lord 1, c. 5, s. 2. 
 
 V. Price, L. R., 9 Ex. 54, 56. {n) Iiiny v. England, 4 Best & 
 
 (o) KrugerY. Wilcox, Amb. 254. Smith, 782. 
 
 [p] Sweet V. Pym, 1 East, 4.
 
 40 OF CHOSES IN POSSESSION. 
 
 In all the aTjove cases of finding of goods, bailment, 
 lion and distress, it appears clear, therefore, that the 
 property in the goods is still simply vested in one party 
 only, although the right to their immediate possession 
 may he in another party, and the actual possession pos- 
 sibly in a third.
 
 ( 41 ) 
 
 CHAPTEE III. 
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 
 
 Choses in possession have always been freely alienable 
 
 from one person to another. The feudal principles of 
 
 tenure, which in ancient times opposed the alienation 
 
 of landed estates, could have no application to the then 
 
 insignificant subjects of personal property ; although the 
 
 full right of testamentary disposition was not, as we 
 
 shall hereafter see, enjoyed in early times. But, though A grant can- 
 
 the property in personal chattels may be freely aliened, of ^j^^t in 
 
 it is impossible for a man to make a valid grant in law which a man 
 
 ,. I'lii , !• ^ "'^^ ^^ actual 
 
 01 that m which he has no actual or potential property, or potential 
 
 but which he only expects to have. A person who has P^°P^^^y- 
 
 an interest in land may grant all the fruit which may 
 
 grow upon it hereafter («). So a grant of the next 
 
 year's wool of all the sheep which a man now has is 
 
 valid, because he has a potential property in such 
 
 wool {b). But a grant of the wool of all the sheep 
 
 which a man ever shall have is void (c). And in the 
 
 same manner the assignment of a man's stock in trade 
 
 passes the properti/, or legal ownership, in such articles 
 
 only as are his at the time he executes such assignment, 
 
 and does not pass the property in any other articles 
 
 which he may afterwards purchase {d) ; not even if the 
 
 instrument of assignment should purport to convey all 
 
 {a) Grantltam v. Hawley, Hob. & Wels. 116. 
 132 ; retch v. Tutin, 15 Mee. & (c) Com. Dig. tit. Grant (D). 
 
 Wels. 110; see also Clements v. {d) Tapfcld \. IliUman, 6 Man. 
 
 Matthews, 11 Q. B. D. 808. & Gr. 21.5 ; S. C. 6 Scott, N. R. 
 
 [h) Per Pollock, G. B., 15 Mco. 9G7.
 
 42 
 
 OF CllOSKS IN rOSSESSION. 
 
 Licence to 
 seize after- 
 .acquircd 
 chattels. 
 
 Contract to 
 assign after- 
 acquired 
 chattels. 
 
 goods whicli sliould at any timo tliereafter he in or 
 u];)on his dwelling-house ((') . But a man may give 
 a licence to seize chattels to be acquired after the date 
 of the licence, by means of which the property in after- 
 acquired chattels may b.e effectually transferred, upon 
 actual seizure thereof, in pursuance of the licence (/). 
 Moreover a man may contract to transfer the pro- 
 perty in chattels, which may afterwards come to 
 belong to him ; and, if the contract be made for 
 valuable consideration and be such as may be specifi- 
 cally enforced by the court, he may be compelled to 
 transfer his ownership in such chattels, when he shall 
 have acquired them, in pursuance of his contract (^7). 
 And any instrument purporting to assign chattels to be 
 afterwards acquired can only take effect as a contract to 
 transfer the legal ownership, or property, in such chat- 
 
 (f) Liuui V. Thornton, 1 C. B. 
 379 ; Gale v. Burmll, 7 Q. B. 
 850; BeJding v. Read, Exch. 11 
 Jur., N. S. 547; 3 Hurlst. & 
 Colt. 955 ; Collycr v. Isaacs, 19 
 Ch. D. 342. It is submitted that 
 the case of Lazarus v. Andrade, 
 L. R, 5 C. P. D. 318, in so far 
 as it may be regarded as an 
 authority against the proposition 
 in the text, is overruled by the 
 case of Collycr v. Isaacs, ubi sup. ; 
 see also Clements v. Matthews, 11 
 Q. B. D. 808. 
 
 (/) Congreve v. Evetts, 10 Ex. 
 298; Carr v. Acraman, 11 Ex. 
 568 ; Hope v. Hayley, 5 E. & B. 
 830 ; Allatt v. Carr, 6 W. R. 578 ; 
 Chidell V. Galsworthy, 6 C. B., 
 N. S. 471 ; Hccve v. Whitmorc, 4 
 DeC, J. &S. 1; 12W. R. 113; 
 9 Jur.,N. S. 1214. 
 
 {g) Holroyd v. Marshall, 10 
 H. L. C. 191 ; Brown v. Bateman, 
 L. E., 2 C. P. 272; Blake v. 
 Izard, 16 W. E. 108 ; Clements v. 
 
 Matthews, 11 Q. B. D. 808 ; see 
 also Reeves v. Barlow, 11 Q. B. D. 
 610. It appears that a contract 
 to transfer the property in chat- 
 tels, which may afterwards be 
 acquired, as security for a debt 
 mu&t be limited to chattels of 
 some specific description (see the 
 cases cited above) ; as a contract, 
 that all the personal property 
 which a man may afterwards 
 acquire shall be charged with a 
 debt, is void; Re Count D''Epineuil, 
 20 Ch. D. 758. But a contract 
 made in consideration of marriage 
 by an intended husband to con- 
 vey all the personal property to 
 which he might afterwai'ds be- 
 come entitled, upon the trusts of 
 the marriage settlement has been 
 held to be a valid contract, and 
 has been specifically enforced ; 
 Lewis V. Madocks, 8 Ves. 48 ; 17 
 Vcs. 150; Hardy v. Green, 12 
 Beav. 182 ; see also Fyfc v. Ar- 
 hnthnot, 1 De G-. & J. 406.
 
 OF THE ALIENATION OF (HOSES IN POSSESSION. 43 
 
 tels, when they shall have been acquired (//). But in 
 consequence of the doctrine that equity regards all things 
 as done which ought to be done («'), when any chattels 
 become subject to a contract to assign them, which is 
 capable of being specifically enforced, the equitable in- 
 terest therein passes to the intended assignee so soon as 
 the intending assignor has acquired the property or legal 
 ownership therein (/.•). For directly the intending as- 
 signor comes to be 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 j)osition 
 of a trustee, holding his legal rights for the benefit of 
 the latter (/). It does not appear, however, that the 
 latter will be invested with the property, or legal owner- 
 ship in such chattels, until it be transferred to him by 
 delivery of possession, or other effectual means {m) . 
 
 The manner in which the alienation of personal chat- 
 tels is effected, is in many respects essentially different 
 from the modes of convej'ing real estate. In ancient 
 times, indeed, there was more similarity than there is at 
 present. The conveyance of land was then usually made Ancient mode 
 by feoffment, with livery of seisin, which was nothing convcpng 
 more than a simple gift of an estate in the land accom- 
 panied by delivery of possession {n). This gift might 
 
 (A) Holroyd v. Marshall, 10 also Beeves y. Barlow, W Q^.'B.'D. 
 
 H. L. C. 191 ; Colhjer v. Isaaes, 610. 
 
 19 Ch. D. 342. (0 As to the difference between 
 
 (i) Sec Principles of the Law the rights of trustee and cestui que 
 
 of Real Property, 171, 192, 193, trust, see "Williams's Conveyan- 
 
 14th ed. cing Statutes, 386, 387. 
 
 [k) Langton v. Horton, 1 Hare, («) ^ee Limn Y.Thornton, IC. B. 
 
 549; Holroyd v. Marshall, 10 379; Clements v. Matthews, 11 
 
 H. L. 0. 191 ; Brown v. Bateman, Q. B. D. 808. 
 
 L. R., 2 C. P. 272 ; Blake v. [n) See Principles of the Law 
 
 Izard, 16 "W. R. 108 ; Clements v. of Real Property, 144, 13th ed. ; 
 
 Matthews, 11 Q. B. D. 808; see 148, 14th ed.
 
 44 
 
 OF CHOSES IX rOSSESSION. 
 
 Modes of 
 alienation of 
 personal 
 chattels. 
 
 then have been made by mere word of mouth (o) ; hut 
 the Statute of Frauds (p) made writing necessary ; and 
 now every conveyance of landed property is required to 
 be by deed (q) . Personal chattels, on the contrary, are 
 still alienable by mere gifi and delivery ; though they 
 may be disposed of by deed ; and they are also assign- 
 able by sale, in a manner totally different from the con- 
 veyance requisite on the transfer of real estate. Each 
 of these three modes of conveyance deserves a separate 
 notice. 
 
 Gift and 
 delivery. 
 
 1. And first, personal chattels are alienable by a mere 
 gift of them, accompanied by delivery of possession. 
 For this purpose no deed or writing is required, nor is it 
 essential that there should be a consideration for the gift. 
 Thus, if I give a horse to A. B., and at the same time 
 deliver it into his possession, this gift is complete and 
 irrevocable, and the property in the horse is thencefor- 
 ward vested in A. B. (r). But if I purjoort to assign 
 the horse, and yet retain the possession, the gift, though 
 made by writing (so that it be not a deed), is absolutely 
 void at law (s) : and equity will give no relief to the 
 
 [o) See Princijjles of the Law 
 of Eeal Property, 149, 13th ed. ; 
 153, 14th ed. 
 
 {p) Stat. 29 Car. II. c. 3, as. 
 1,2. 
 
 [q) Stat. 8 & 9 Vict. c. 106, 
 8. 3. 
 
 (r) 2 Blac. Com. 441. If a gift 
 be made of a chattel, which is 
 already in the possession of the 
 donee, it appears that the pro- 
 perty therein may be well trans- 
 ferred by a gift, made by word 
 of mouth, coupled with that 
 change in the nature of the pos- 
 session, which is effected by the 
 donee commencing to hold his 
 
 possession for his own benefit 
 Avith the consent of the donor ; 
 Winter v. Whiter, 9 W. R. 747. 
 It is thought that the requisite 
 change in the nature of the pos- 
 session must sufficiently appear, 
 in order to support such a gift ; 
 see Shoicerx. Filck, 4 Ex. 478, in 
 which case however the ground 
 of the decision appears to have 
 been that the words used did not 
 amount to a present gift. 
 
 (s) Irons V. Smallpiece, 2 Bam. 
 & Aid. 551 ; Miller v. Miller, 3 P. 
 Wms. 356 ; Bourne v. Fosbrooke, 
 18 C. B., N. S. 515 ; Richards v. 
 Bclbridffc, L. R., 18 Eq. 11.
 
 OF THE ALIENATION OF CIIOSES IN roSSESSION, 45 
 
 donee (t). It m<a>-, however, be observed, that if the Trust, though 
 donor should not attempt to part with the subject of euforSn 
 gift, but should declare that he keeps possession of it in equity. 
 trust for the donee, equity will seize on and enforce this 
 trust, although voluntarily created {u) . In some cases 
 it is not possible to make an immediate and complete 
 delivery of the subject of gift ; and in these cases, as 
 near an approach as possible must be made to actual 
 delivery ; and if tliis be done, the gift will be effectual. 
 Thus if goods be in a warehouse, the delivery of the 
 key will be sufficient (.r) : timber may be delivered by 
 marking it with the initials of the assignee {i/), and an 
 actual removal is not essential to the delivery of a hay- 
 stack (z). But the delivery of a part of goods capable 
 of actual delivery, is not a sufficient delivery of the 
 whole (a). 
 
 When goods are in the custody of a simple bailee, Constructive 
 such as a wharfinger or carrier, the possession of such 'lelivery^when 
 bailee is, as we have seen (b), constructively the posses- the custody of 
 sion of the bailor ; and either the bailor or bailee may bailee^ ^ 
 maintain an action of trover in respect of the goods. 
 This constructive possession of the bailor may be de- 
 livered by him to a third person, by making as near an 
 approach to actual delivery as is possible under the cir- 
 cumstances of the case. By the custom of Liverpool 
 
 {() Antrobus v. Smith, 12 Ves. [x) West v. Skip, 1 Ves. sen. 
 
 39, 46 ; Edwards v. Jones, 1 My. 244 ; Ryall v. lioiiics, 1 Ves. sen. 
 
 & Or. 226; Dillon v. Coppin, 4 362; lAtk. 171; Ward v. Turner, 
 
 My. & Cr. 647, 671 ; Richards v. 2 Ves. sen. 443. 
 
 Belhridge, L. R., 18 Eq. \\; Re {>/) Stovcldv. Hughes, 14 East, 
 
 Breton'' s Estate, Breton v. Woollven, 308. 
 
 17Ch. D. 416. {z) Chaplin v. Rogers, 1 East, 
 
 (it) Ellison V.Ellison, 6 Ves. 6d6; 190. See Young v. Matthews, L. 
 
 Ex parte Dubost, 18 Ves. 140, 150; Eep., 2 C. P. 127. 
 
 Vandenberg v. Palmer, 4 Kay & {a) Per Pollock, C. B., 14 Mee. 
 
 John. 204 ; Jones v. Lock, L. C, & Wels. 37, correcting a dictum 
 
 11 Jur., N. S. 913; L. R., 1 Ch. of Taunton, J., 2 Ad. & Ell. 73. 
 
 25 ; correcting Scales v. Maude, (b) Ante, pp. 33, 34. 
 6 DeG., M. Sc G. 43, 51.
 
 40 
 
 OF (;HO.SES IN POSSESSION. 
 
 the delivery of goods in anotlier person's warehouse is 
 effected Ly merely handing over a delivery order (c) ; 
 
 Dock-warrant, and the property in wines in the London Docks appears 
 to pass by the indorsement and delivery of the dock 
 warrant (r/). Bnt, in the absence of a custom to the 
 contrary, it would seem that there can be no legal 
 delivery of goods into the hands of a third person without 
 the consent of the warehouseman or wharfinger in whose 
 
 Bill of lading, custody the goods are {e) . When goods are at sea, the 
 delivery of the bill of lading, after its endorsement, is a 
 delivery of the goods themselves (,/') ; for it is not pos- 
 sible, in this case, to make any nearer approach to an 
 actual delivery (g) . It has been the custom to draw bills 
 of lading in triplicate. The properf//, that is, the legal 
 ownership, in goods at sea passes to the person, to whom 
 an endorsement and delivery of any one part of a bill of 
 lading, drawn in triplicate, is first made with intent to 
 pass the property (//). 
 
 (c) Dixon v. Yates, 5 Barn. & 
 Adol. 313 ; and see Greaves v. 
 JTep/ce, 2 Barn. & Aid. 131 ; 
 Kiiiffsford V. ilernj, 1 Hurl. & 
 N. 503. 
 
 {d) Ex parte Davenport, Mon. 
 & Bl. 165. Delivery orders are 
 now subject to a stamp duty of 
 one penny, and dock warrants to 
 a stamp duty of threepence, by 
 statutes 23 Vict. c. 15, and 23 & 2-1 
 Vict. c. Ill ; repealed by stat. 33 
 & 34 Vict. c. 99 ; and re-enacted 
 by stat. 33 & 34 Vict. c. 97. 
 
 [e) ZwingcrY. Samuda, 7 Taunt. 
 265 ; Lucas v. Dorrien, ibid. 278 ; 
 Bryans v. Xix, 4 Mee. & Wels. 
 775, 791 ; M'JSwau v. Smith, 2 H. 
 of L. Cases, 309. And see Pearson 
 V. Dau-son, 1 E., B. & E. 448. 
 
 (/) Mitchell V. Ede, 11 Ad. & 
 Ell. 888 ; and see stat. 18 & 19 
 Vict. c. Ill ; Barber v. Meycrstein, 
 
 L. R., 4 H. L. 317 ; Sanders v. 
 Maclean, 11 Q. B. D. 327. As to 
 the deposit of an indorsed bill of 
 lading- by way of security for an 
 advance of money, see Burdrick 
 V. Sewell, 10 Q. B. D. 363. 
 
 ((/) 1 Ves. sen. 362; 1 Atk. 
 171. 
 
 {h) Barber -v. Mei/crstcin, L. R., 
 4 H. L. 317; Brett, M. R., 
 Bowen, L. J., Sanders v. Maclean, 
 11 Q. B. D. 327, 3.34, 335, 341. 
 It appears, however, that the 
 shipowner, or any person stand- 
 ing- in liis place, is justified in 
 delivering the goods on arrival 
 to the holder of any one part of 
 a bUl of lading, drawn in the 
 usual form, provided that the 
 delivery be made in good faith 
 and withoiit notice or knowledge 
 of any assignment of another 
 part of the bill of lading ; Gli/n,
 
 OF THE ALIENATION OF CIIOSES IN POSSESSION. 47 
 
 2. The next metliod of alienating chattels personal is Alienation by 
 by deed. Every deed imports a consideration (/) ; for ^^ ' 
 
 it was anciently supposed, that no person would do so 
 solemn an act as the sealing and delivery of a deed 
 without some sufficient ground. The presence of this 
 implied consideration renders a deed sufficient of itself 
 to pass the property in goods (/<■) . It supplies on the one 
 hand the want of delivery, and on the other the want 
 of that actual consideration which always exists in the 
 third and most usual mode of alienation of chattels per- 
 sonal, which is, 
 
 3. By sale. It is in tliis last and most usual method Sale. 
 of alienation that the contrast presents itself between 
 
 the means to be employed for the alienation of real 
 property and chattels personal. When a contract has Effect of a 
 been entered into for the sale of lands, the legal estate l^ ^^j^ ^f ^ 
 in such lands still remains vested in the vendor : and it lands, 
 is not transferred to the vendee until the vendor shall 
 have executed and delivered to him a proper deed of 
 conveyance. In equity, it is true, that the lands belong 
 to the piu'chaser from the moment of the signature of 
 the contract ; and from the same moment the purchase- 
 money belongs, in equity, to the vendor (/). But at 
 law the only result of the signature of a contract for 
 the sale of lands is, that each party acquires a right to 
 sue the other for pecuniary damages, in case such con- 
 tract be not performed. Not so, however, the case of a Contract for 
 contract for the sale of chattels personal. Such a con- transfc^The 
 tract immediately transfers the legal property in the property, 
 goods sold from the vendor to the vendee, without the 
 
 Ilills ^- Co. V. East and West India 14th ed. 
 
 Bock Co., 7 App. Cas. 591. (A) Carry. Burdiss, 1 C.,M.&E.. 
 
 (0 Plowd. 308 ; 3 Burr. 1639 ; 782, 788 ; S. C. o Tyrw. 309, 316. 
 
 1 Font. Eq. 342 ; 2Fonb. Eq. 26; (/) Principles of the Law of 
 
 Principles of the Law of Real Ileal Property, 166, 13th ed. ; 
 
 Property, 149, 13th ed. ; 154, 171, 14th ed.
 
 48 OF CHOSES IN POSSESSION. 
 
 necessity of any tiling further (/>^,). In order to this, it 
 is of conrse necessary that the transaction have within 
 itself all the legal requisites for a sale ; and these requi- 
 sites will accordingly form the next subject for our con- 
 sideration (»). 
 
 Requisites for q^[;^q requisites for the sale of goods partly depend 
 goods under Upon their value. Groods under the value of 10/. sterling 
 10/ ^^ "^ ° raaj now be sold in the same manner as goods of what- 
 ever value were anciently saleable ; whereas goods of 
 the value of 10/. or upwards are now regulated in their 
 sale by an enactment contained in the Statute of 
 Frauds (o). And first, with regard to such goods and 
 chattels as do not fall within this enactment, there can 
 be no sale without a tender or part payment of the 
 money, or a tender or part delivery of the goods, unless 
 the contract is to be completed at a future time. Thus 
 if A. should agree to pay so much for the goods, and 
 B., the owner, should agree to take it, and the parties 
 should then separate without anything further passing, 
 this is no sale {])). But if A. should tender the money, 
 or pay but a penny of it, or B. should tender the goods, 
 or should deliver any, even the smallest portion, of 
 them to A., or if the payment or delivery or both should 
 be postponed by agreement till a future day, the sale 
 will be valid, and the property in the goods will pass at 
 once from the vendor to the vendee (y). If, however, 
 any act should remain to be done on the part of the 
 
 (»m) Com. Dig. tit. Bieus (D), 3. upon the case of Flory v. Denny 
 
 {ii) In the recent cases of in Williams's Conveyancing Sta- 
 
 Thompson v. Pettitt, 10 Q. B. tutes, Addenda. 
 
 101, and Florij v. Bcimy, 7 Ex. (o) 29 Car. II. c. 3, s. 17. 
 
 Rep. 581, the property in goods {p) 2 Bla. Com. 447; Smith's 
 
 was held to pass by a mere written Mercantile Law, 461, 5th ed. ; 
 
 memorandum by way of tiwrtgage, 488, 6th ed. 
 
 without any delivery; serf 5?^. See [q) Shci). Touch. 224 ; Martin- 
 Ex parte Montagu, Re O^Brien, 1 dale v. Smith, 1 Q. B. 389, 395, 
 Ch. D. 554. And see a note 
 
 I
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 49 
 
 seller previously to the delivery of the goods, the 
 property will not pass to the vendee until such act shall 
 have been done. Thus, if goods, the weight of which 
 is unknown, are sold by weight (r), or if a given weight 
 or measure is sold out of a larger quantity («), the pro- 
 perty will not pass to the vendee until the price shall 
 have been ascertained by weighing the goods in the 
 one case, or the goods sold shall have been sej)arated by 
 weight or measure in the other. So if an article be 
 ordered to be manufactured, the property in it will not 
 vest in the person who gave the order, until it shall, 
 with his assent, have been apj)ropriated for his benefit {f). 
 It is not, however, necessary that a price should actually 
 be named. A contract to sell without naming a price 
 is a contract to sell at a reasonable price ; and the pro- 
 perty in goods may well pass by such a contract (ii) . 
 So a contract to sell by weight may pass the property 
 in the goods before they are actually weighed, if such 
 appear to be the intention of the parties (;r) . « 
 
 But with regard to goods of the value of 10/. or Requisites for 
 upwards, additional requisites have been enacted by the o-oods oAhe 
 seventeenth section of the Statute of Frauds (?/), which value of loi. 
 provides, " that no contract for the sale of any goods, 
 wares and merchandizes for the jmce of 10/. sterling or 
 upwards shall be allowed to be good, except the buyer 
 shall accept part of the goods so sold, and actually re- 
 ceive the same, or give something in earnest to bind 
 the bargain, or in part of payment, or that some note 
 or memorandum in writing of the said bargain be made 
 and signed by the parties to be charged by such con- 
 
 {?•) Hanson v. Meyer, 6 East, Cress. 277 ; Wilkiiis v. Bromlicad 
 
 614 ; Swanwick v. Sothcrn, 9 Ad. 5 Man. & Crr. 963, 973. 
 
 & Ell. 895. [n] Joyce v. Sicajvt, 17 C. B., 
 
 (s) Busk V. Davics, 2 Mau. & N. S. 84. 
 
 Selw. 397 ; Shcplcy v. Davis, 5 {x) TurUy v. Bales, 2 Hurl. & 
 
 Taunt. 617. Colt. 200. 
 
 (t) Atkinson v. Bell, 8 B. & {ij) 29 Car. II. c. 3. • 
 
 w.p.r. E
 
 50 OF ClIOSES; IX POSSESSION. 
 
 tracf, or their agents thereunto lawfully authorized." 
 And by a modern statute (;:), this enactment "shall 
 extend to all contracts for the sale of goods of the value 
 of 10/. sterling and upwards, notwithstanding 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." 
 
 The above section of the Statute of Frauds has been 
 
 interpreted by a vast number of cases decided on almost 
 
 What is an everv oue of the phrases it contains (a). The chief dif- 
 
 acceptance " . 
 
 and actual re- uculty has been to determine the exact meaning of the 
 the'statut acceptance of part of the goods and actual receipt of 
 the same, required on the part of the buj-er, and to as- 
 certain in each particular case whether such acceptance 
 and actual receipt have taken place or not. The ac- 
 vir ceptance required appears not to be necessarily such as 
 
 shall preclude the purchaser from afterwards objecting 
 to the quality of the goods {h) , and it may be prior to 
 the receipt (c). Actual receipt seems, according to the 
 great preponderance of authority, to mean receipt of 
 the possession of the goods, and to be merely correlative 
 to delivery of possession on the part of the vendor (r/). 
 There must, therefore, be an actual transfer of the 
 article sold, or some part thereof, by the seller and an 
 
 (r) Stat. 9 Geo. IV. c. 14, s. 7. Swd v. Hic/d, S Exch. S14 ; 
 
 See Hoadley v. M'Laine, 10 Bing. Nicholson v. Bower, 1 Ellis & 
 
 482, 486. Ellis, 72 ; Smith v. Hudson, Q. B. 
 
 («) See Smith's Mercantile 11 Jur., N. S. G22 ; 6 Best & 
 
 Law, 468 et seq. 5th ed. ; 495 Smith, 431. 
 
 ct seq. 6th ed. ; Benjamin on (e) C'usack v. Robinson, 1 Best 
 
 Sales, Bk. I. Pt. It. 72 e( seq. & Smith, 299. 
 2nd ed. (r7) Smith's Mercantile Law, 
 
 (i) 3foiion V. Tibbetf, 15 Q. B. 472, n. {(/), 5th ed. ; 499, n. (m), 
 
 428 ; Bushellv. Wheeler, 15 Q. B. 6th ed. ; Saunders v. Topj), 4 Ex. 
 
 442 ; Cxrrie v. Anderson, 2 Ellis Rep. 390 ; see also Benjamin on 
 
 & Ellis, 532, 600. See, however, Sales, 110, 2nd ed.
 
 OF THE ALIEN ATIOX OF (IIOSES IN POSSESSION. i 
 
 actual taking possession of it Ly the buyer (r-). The 
 possession of a simple bailee is, however, as we have 
 seen (./"), constructively the possession of the bailor. 
 If therefore the vendor should change his character 
 and become the bailee of the pm'chaser, there may be a 
 sufficient actual receipt in law on the part of the pur- 
 chaser, although tlie goods still remain in the possession 
 of the vendor (r/). So if any part of tlie goods be 
 delivered to an agent of the vendee, or to a carrier 
 named by him, this is a sufficient receipt by the vendee 
 himself {//) ; and if the goods should be in the possession 
 of a wareliouseman or wharfinger at the time of sale, 
 the receipt b}' 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 within the 
 statute (/). The wharfinger liolds the goods as the 
 agent of the vendor, until he has agreed with the pur- 
 cliaser to hold for him. Then, and not till then, the 
 wharfinger is the agent or bailee of the purcliaser, and 
 tlie possession of such wharfinger is that of the pur- 
 chaser ; and then only is tliere a constructive delivery to 
 him (/.•). 
 
 The requisitions of the statute, it will be observed, The requi.si 
 are in the alternative. Either the buyer must accept j-t^tut^ arcT 
 part of the goods sold, and actually receive the same, the altema- 
 01- he must givd^mething in earnest or in part of pay- 
 ment, 01- some note or memorandum in waiting must be 
 
 (r) Ilahh';/ v. rarkcr, 2 B. & v. r/iilUps, U M. & W. 277; 
 
 Cress. 37, 41. Coombs v. Bristol and Exeter Iiail~ 
 
 (/) Ante, pp. ,"3, 31. ic((>/ Company, 3 H. & N. 510. 
 
 (.,7) CastJe V. Sworder, Exch. (/) Bentedl v. Burn, 3 B. & 
 
 Chamb., 6 H. & N. 828, rcvcrs- Cress. 423; Pearson v. Dawson, 
 
 iiig the judgnicnt of the Court of 1 E., B. & E. 448. See ante. 
 
 Exchequer, 5 II. & N. 281. p. 45. 
 
 {Ii) Dawes V. Deck, 8 T. Hep. (/.•) Farina v. ITorne, 16 M. & 
 
 330 ; Hart v. Bush, 1 E.,B. & E. W. 119, 123. 
 494, 498. See, however, Xormmi 
 
 e2 
 
 tive.
 
 52 OF CIIOSES IN POSSESSION, 
 
 signed. The two former alternatives are left as they 
 were before the statute ; but the last is a new requisition 
 which must be observed in the absence of either of the 
 former (/). The effect of the statute, therefore, is to 
 abolish tender and mere words as sufficient for a sale, 
 and to substitute for them the more exact evidence of a 
 Memorandum note or memorandum in writing (vi) . But as the memo- 
 °' randum may be signed by an agent lawfully authorized, 
 the bought or sold notes given by a broker are a suffi- 
 cient memorandum within the meaning of the statute {n). 
 And it is held that the entry of a purchaser's name by 
 an auctioneer's clerk at an auction is also sufficient to 
 satisfy the statute, as the clerk is, for that purpose, the 
 authorized agent of the purchaser (o) . But one of the 
 contracting parties to a sale cannot be the agent for the 
 other for the purpose of signing a memorandum of the 
 bargain (p). 
 
 When the If the agreement is not to be performed within the 
 
 notto^ite per- ^V^^^ ^^ '^^^ J^ar from the making thereof, then, how- 
 formed within ever small be the value of the goods, no action can be 
 brought upon it, unless the agreement, or some memo- 
 randum or note thereof, shall be in writing, and signed 
 by the i)arty to be charged therewith, or some other 
 jierson thereunto by him lawfully authorized. This is 
 
 (/) Zee V. Gviffin, 1 Best & c. 97, Schedule, tit. Agreement. 
 Smith, 272 ; Wilkinson v. Evans, («) Goom v. Aflalo, 6 B. & 
 
 L. Eep., 1 C. P. 407. See Van- Cress. 117; Parton v. Crofts, 16 
 
 denbergh v. Spooner, L. Eep., 1 C. B., N. S. 11 ; Thompson v. 
 
 Ex. 316. Gardiner, L. Rep., 1 C. P. D. 
 
 [m) Every memorandum, letter, 777. 
 or agreement made for or relat- (o) Bird v. Boulter, 4 B. & 
 
 ing to the sale of any goods, Adol. 443. See also Bird v. Loyi- 
 
 "wares or merchandize, is exempt don and Paris Hotel Compamj, L. 
 
 from all stamp duty; stat. 55 Rep., 20 Eq. 412, 42G. 
 Geo. III. c. 148, Sched., Part I. {pi) Farebrother v. Sinunons, 5 
 
 tit. Agreement ; now repealed B. & Aid. 333 ; Sharman v. 
 
 by stat. 33 & 34 Vict. c. 99 ; and Brandt, L. R., 6 Q. B. 720. 
 re-enacted by stat. 33 i*c 31 \'u-t.
 
 OF THE ALIKNA'iroN OV (HOSES TX I'OSSESSIOX. 53 
 
 another provision of the Statute of Frauds (y), and will 
 be hereafter noticed more particularly. 
 
 Although the property in goods sold passes, as wo 
 have seen (r), from the vendor to the vendee, immedi- 
 ately upon the execution of a valid 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 (.s^) , but not 
 before {f). And the law formerly was that so long as Vendor's lien, 
 the vendor retained actual or constructive possession of 
 the goods he had a lien upon them for so much of the 
 purchase-money as might remain unpaid {ii) . But with 
 regard to constructive possession, the law has now been 
 altered ; and the lien of the vendor is now liable to be 
 defeated by the indorsement or delivery by the vendee 
 of any document of title to the goods to a person who 
 takes the same bond fide and for valuable considera- 
 tion {x) . "When the goods are once delivered by the 
 vendor out of his own actual or constructive possession, 
 his lien is gone : for lien in law is, as we have seen (//), 
 merely a right to retain possession, and not to recover 
 it when given up. 
 
 Under certain circumstances, however, the vendor of 
 goods has a right to resume their possession, wdth which 
 he had previously parted under a contract for sale. This Stoppage in 
 right is called the right of stoppage in transitu ; and it 
 occurs when goods are consigned entirely or partly (;:) 
 on credit from one person to another, and the consignee 
 
 {q) 29 Car. II. c. 3, s. 4. Richardson, Privy Council, 2G W. 
 
 (;•) Ante, p. 47. R. 358; L. Rep., 3 App. Cas. 
 
 (s) Rawson v. Johnston, 1 East, 319. 
 203. (.r) Stat. 40 k 41 Vict. c. 39, 
 
 {t) Bloxam v. Sanders, 4 Bam. 8. 5. Post, p. 55. 
 & Cress. 941. (y) Ante, pp. 35, 39. 
 
 {it) Dixon V. Yates, 5 Barn. Sz [z) Hodgson v. Loij, 7 T. R. 
 
 Add. 313 ; Lackington v. Ather- 440. 
 ton, 7 Man. & G. 360 ; Grice v.
 
 54 
 
 OF CUOSES IX POSSESSION . 
 
 First allowed 
 by Court of 
 Chancery. 
 
 "becomes bankrupt or insolvent before the goods arrive. 
 In this event the consignor {a) has a right to direct the 
 captain of the ship, or other carrier, to dehvor the goods 
 to himself or his agent instead of to the consignee, who 
 has thus become unable to paj" for them. The right of 
 stoppage in transitu was first allowed and enforced only 
 by the Court of Chancery, which in the exercise of its 
 equitable jmisdiction, considered that, imder the circum- 
 stances above mentioned, it was very allowable in equity 
 for the consignor to get his goods again into his own 
 hands {b) . But the right was subsequently acknowledged 
 by the courts of law ; and it is now constantly enforced 
 by them. As this right was originally of equitable origin 
 it cannot be expected to depend on strictly legal princi- 
 ples ; and the doctrines of law on this particular subject 
 are in fact unlike 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 (c) ; 
 but the consignee of goods may, by indorsing the 
 bill of lading to a bond fide indorsee, defeat the con- 
 signor's right to stop in transitu (f/). And now, by 
 
 {a) Bird v. Brown, 4 Ex. Rep. 
 786. 
 
 (b) fFiseman v. Vandeputt, 2 
 Vem. 203 ; Siiee v. Frescot, 1 
 Atk. 245. 
 
 (c) Dixon V. Yates, 5 Barn. & 
 Adol. 339. 
 
 id) Lickbarrow v. JIcL-ion, 2 T. 
 E. 63 ; 1 H. Bl. 357 ; 6 East, 21 : 
 1 Smith's Leading Cases, 388, 
 753, 8th ed. ; Jenkyns v. Unborne, 
 7 Man. & Gr. 678, C99 ; Roger v. 
 The C'omptoir d^ Escompte de Paris, 
 Law Rep., 2 P. C. 393. See Re 
 parte Golding, Davis i^- Co. Limited, 
 Ee Knight, 13 Ch. D. 628. The 
 indorsement and delivery of a 
 
 bill of lading by way of secu- 
 rity for an advance of money 
 does not absolutely defeat the 
 consignor's right to stop the 
 goods in transitu. In such a 
 case, if the consignor stop the 
 goods, the amount due to the in- 
 dorsee upon his seciu'ity must 
 first be satisfied ; but, subject 
 thereto, the consignor will be 
 entitled to the goods, or the pro- 
 ceeds of sale of the goods, for 
 his own benefit ; Ee TFestzinthus, 
 5 B. & Ad. 817; Spalding v. 
 Ending, 6 Beav. 376 ; Kemp v. 
 Falk, 7 App. Cas. 573.
 
 OF THK ALIENATION OF ( llOSKS I\ I'OSSES^SIOX. 55 
 
 the act to ameud the Factors Acts (e), it is provided 
 that where any document of title to goods has been 
 lawfully indorsed or otherwise transferred to any person 
 as a vendee or owner of the goods, and such person 
 transfers such document by indorsement (or by delivery 
 where the document is by custom, or b}^ its express 
 terms, transferable by delivery or makes the goods 
 deliverable to the bearer) to a person who takes the 
 same bond fide and for valuable consideration, the last- 
 mentioned transfer shall have the same effect for defeat- 
 ing any vendor's lien or riglit of stoppage in transitu, 
 as the transfer of a bill of lading has for defeating the 
 right of stoppage in transitu. So a delivery of goods 
 into the possession of a carrier appointed by the vendee 
 is, in construction of law, a delivery to the vendee 
 himself, and divests the vendor's lien for the unpaid 
 purchase-money (_/') ; but until the tmusitus is com- 
 pletely ended, or the goods come to the actual posses- 
 sion of the vendee, the vendor's right to stop them in 
 transitu may still be exercised in the event of the bank- 
 rupt c}^ or insolvency of the vendee {g), unless indeed 
 such right be defeated, as we have said, by a bond fide 
 indorsement of the bill of lading, or other document of 
 title. Thus, although by the sale of the goods the 
 property in them, involving the risk of their loss, 
 passes to the purchaser, and although the possession of 
 them be delivered to a carrier named by him, still such 
 
 (r) Stat. 40 & il Yict. c. 39, Smith v. Iluihon, Q. B. 11 Jur.,' 
 
 s. 5. N. S. 622 ; 6 Best & Smith, 431 ; 
 
 (/) Bitwes V. reclc, 8 T. E. 330; Bcrndtson v. Strang, L. C, 16 
 
 ante, p. 51 ; WibmhurU v. Boahr, W. R. 1025 ; L. Rep., 3 Ch. 588 ; 
 
 iu error, 7 Man. & Gr. 882. Frascrv. Witt, L. Rep., 7 Eq. G4 ; 
 
 ((/) Hoist V. Poioud, 1 Esp. 240; Eoyer v. The Conqjtoir d'' Eseompte 
 Northeij v. Field, 2 Esp. 613; f7<? P«Hs, Law Rep., 2 P. C. 393; 
 Jackson v. Nichol, 5 New Cases, Ex parte Cooper, In re McLaren, 
 508, 519. See Van Casteel v. L. Rep., 11 Ch. D. 68, 78 ; Ken- 
 Booker, 2 Ex. Rep. 691 ; Heine- dal v. Marshall, 11 Q. B. D. 356. 
 knj y. F.arlc, 8 E. & B. 410:
 
 56 
 
 OF CHOSES IN POSSESSION. 
 
 possession may bo resumed by the vendor during the 
 journey, in the event of the bankruptcy or insolvency 
 of the vendee. As this right is a departure from legal 
 principles on the vendor's behalf, it is allowed only in 
 one of the two cases of bankruptcy or insolvency, by 
 which latter term appears to be here meant a general 
 inability to pay, evidenced by stopping of payment [h). 
 When possession of goods has been resumed by the 
 vendor under his right of stoppage in transitu, he is 
 restored to the lien for the unpaid purchase-money 
 which he had before he parted with such possession ; 
 but, according to the better opinion, the contract for 
 sale is not thereby rescinded {i). 
 
 A recovery in 
 trover vests 
 the property 
 in the 
 defendant. 
 
 There is one case in which the property in goods 
 passes from one person to another by payment of their 
 value without any actual sale. In any action of 
 trover (/.•) the plaintiff is entitled to damages equal to 
 the value of the property he has lost, but not further 
 unless he has sustained any special damage (/). The 
 defendant, therefore, when he has paid the amount of 
 the damages, but not before, is entitled to retain the 
 goods in respect of which the action is brought ; and 
 the property in them vests in him accordingly (ni). 
 
 The alienation of personal chattels is prohibited to be 
 
 (/() See Smith's Merc. Lavr, 
 . 525, n. {b), 5th ed. ; 554, n. 6th 
 ed. The case of Wilmshurst v. 
 Boivher, 5 NewCas. 541; 7 Scott, 
 561 ; 2 Man. & G. 812, was re- 
 versed in error, 7 Man. & Gr. 
 882. 
 
 (i) Bloxam v. Sanders, 4 Barn. 
 & Cress. 949 ; 1 Smith's Leading 
 Cases, 432 ; SchotsmanH v. Lan- 
 cashire and Yorkshire Eailivay 
 Company, L. Rep., 2 Ch. 332, 
 340: 36 L. J., N. S. 361, 366; 
 
 Benjamin on Sales, Bk. V. Pt. I. 
 § VI., 723—725, 2nd ed. 
 
 {Jc) See ante, p. 30. 
 
 [l) Bodlcy V. Reynolds, 8 Q. B. 
 779. 
 
 (w) Cooper V. Shepherd, 3 C. B. 
 266,272. See Bucklandv. Johnson, 
 C. P., 18 Jur. 775; 15 C. B. 
 145 ; Brinsmead v. Harrison, C. 
 P., 19 W. R. 956 ; L. Rep., 6 
 C. P. 584 ; Ex parte Brake, In re 
 Ware, 5 Ch. D. 866.
 
 OF THE AMKNATIOX OF CIIOSKS IN I'OSSKSSIOX, 57 
 
 made by certain persons and for certain objects. And 
 first with respect to persons. An alien or foreigner was, Alien, 
 until recently, under groat restrictions as to the acquire- 
 ment of real estate (//) ; hut with respect to Loth real 
 estate and personal chattels Ik^ now stands on the same 
 footing as a natural-Lorn subject; for Ly the Naturali- The Natm-ali- 
 zation Act, 1870 (o), it is enacted (;;) that real and f^y^^""^' 
 personal property of every description may Le taken, 
 acquired, held and disposed of Ly an alien in the same 
 manner in all respects as by a natural-born British sub- 
 ject ; and a title to real and personal property of every 
 description may be derived through, from or in succes- 
 sion to an alien in the same manner in all respects as 
 through, from or in succession to a natiu-al-born British 
 subject. This act also contains pro\isions empowering 
 naturalized aliens to divest themselves of their status in 
 certain cases. It also provides ( q) that any person who, 
 by reason of his having been born within the dominions 
 of her Majesty, is a natural-born subject, but who also 
 at the time of his birth became, under the law of any 
 foreign state, a subject of that state, may, if of full age 
 and not under any disability, make a declaration of Declaration of 
 alienage in the manner provided by the act, after which ^^^^^&^- 
 such person shall cease to be a British subject. Any 
 British subject who voluntarily becomes naturalized in 
 a foreign state is now regarded as an alien [r). Cer- 
 tificates of naturalization («) and of readmission to 
 British nationality {t) may also be granted in certain 
 cases. The following enactments have been made with "Women and 
 respect to the national status of women and children. 
 (1.) A married woman is deemed to be a subject of the Married 
 
 ■women. 
 
 («) See Principles of the Law Vict. c. 102, and 35 & 36 Vict, 
 
 of Real Property, 65, 13th ed. ; c. 39. 
 
 67, 14th ed. {p) Sect. 2. 
 
 (o) Stat. 33 Vict. c. 14, repeal- [q) Sect. 4. 
 
 ing- Stat. 7 & 8 Vict. c. 6G ; 10 & {r) Sect. 6. 
 
 11 Vict. c. 83, and other statutes, [s) Sect. 7. 
 
 and amended by stats. 33 & 34 {t) Sect. 8.
 
 68 
 
 OF CHOSES IX POSSESSION. 
 
 Widow. 
 
 Children. 
 
 state of wliich her husband is for the time being a subject. 
 (2.) A widow, being a natural-born British subject, who 
 has become an alien by or in consequence of her mar- 
 riage, is deemed to be a statutory alien, and maj as such, 
 at any time during widowhood, obtain a certificate of 
 readmission to British nationality as provided by the 
 act. (3.) "Where the father, being a British subject, 
 or the mother, being a British subject and a widow, 
 becomes an alien in pursuance of the act, any child of 
 such father or mother who during infancy has become 
 resident in the country where the father or mother is 
 naturalized, and has, according to the laws of such 
 country, become natm'alized therein, shall be deemed 
 to be a subject of the state of which the father or 
 mother has become a subject, and not a British subject. 
 (4.) Where the father, or tlie mother being a widow, has 
 obtained a certificate of readmission to British nation- 
 ality, every child of such father or mother, who during 
 infancy has become resident in the British dominions 
 with such father or mother, shall be deemed to have 
 resumed the position of a British subject to all intents. 
 (5.) Where the father, or the mother being a widow, has 
 obtained a certificate of naturalization in the United 
 Kingdom, every child of such father or mother who 
 during infancy has become resident with such father or 
 mother in any part of the United Kingdom, shall be 
 Saving clause deemed to be a naturalized British subject {u). Nothing 
 contained in the act is to deprive any married woman 
 of any estate or interest in real or personal property 
 to which she may have become entitled previously to 
 the passing of the act, or affect such estate or interest 
 to her prejudice (x). 
 
 as to married 
 women 
 
 Infant, idiot 
 and lunatic. 
 
 The gift of an i)if(nit or person under the age of 
 twenty-one years is voidable (i/), and that of an idiot or 
 
 (ic) Stat. 33 Vict. c. U, s. 10. 
 (x) Stat. 3o & 3G Vict. c. 39, s. 3. 
 
 {>/) Bae. Abr. tit. Infancy and 
 Age (I), 3.
 
 OF THE AhlL;>ATlUN OF (HOSES IN rossEsSlOX. 50 
 
 lunatic appears to be absolutc4y void (;:) : in this respect 
 the law of personal chattels is now the same as that of 
 real estate («). Before the Married Women's Property Married 
 Act, 1882 ih), came into operation, married women also 
 were incapable of making any disposition of personal 
 chattels, except such as miglit have been settled in 
 equity in trust for their own separate use ; for marriage 
 was an absolute gift in law of all the wife's choses in 
 possession to her husband, as well those she was pos- 
 sessed of at the time of the marriage, as those which 
 came to her during her coverture (c). 
 
 "Where a person is outlawed, or put out of the protec- Outlaw, 
 tion of the law, his property becomes forfeited to the 
 crown (r/). But by a recent statute ((') outlawry in 
 civil proceedings is now aboiislied. And persons con- Convicts, 
 victed of treason or felony formerly forfeited on sucli 
 conviction the whole of their goods and chattels to the 
 cro"^ai : and nothing but a bond fide alienation for a 
 valuable consideration, made previously to conviction, 
 could avert such forfeiture (./'). AVhen a felony was not 
 capital, the punishment endured liad the effect of a 
 pardon [(j) ; but the restoration to civil rights did not 
 take effect till the determination of the period of punish- 
 ment. All personal property, therefore, which accrued 
 to a felon during his transportation was forfeited to the 
 crown (//) ; but a mere contingent interest was not for- 
 feited, if it did not vest until the expiration of the period 
 
 (r) Ibid. tit. Idiots aud Lima- [d) 3 Bla. Com. 281 ; Tyntc v. 
 
 tics (F). The Qncoi, 7 Q. B. 216; Solomon 
 
 [a) See Principles of the Law v. Graham, 5 E. & B. 320. 
 
 of Real Property, 67, 13th ed. ; (<•) Stat. 42 & 43 Vict. c. 59. 
 
 69, 14th ed. (/) 3 Rep. 82 b ; 4 Bla. Com. 
 
 (i) Stat. 45 & 46 Vict. c. 75. 387, 388 ; Perkins v. Bradley, 1 
 
 {c) Co. Litt. 300 a; 1 Rop. Hare, 219; Chowney. Baijlis, 31 
 
 Husb. and Wife, 169. See post, Beav. 351. 
 
 the chapter on Husband and [g) Stat. 9 Geo. IV. c. 32, s. 3. 
 
 Wife ; Williams's Conveyancing (A) Mohcrls v. IJ'nlkcr, 1 Russ. 
 
 Statutes, 373-392. & M. 752.
 
 GO 
 
 OF (•H()SP:S in I'OSSESSIOX. 
 
 Forfeiture 
 abolished. 
 
 of convicts' 
 property. 
 
 of banishment (/). Bat tlie law on this subject is now 
 altered by a recent act (/.•), wliieb provides (/) that after 
 its passing, no confession, verdict, inquest, conviction or 
 judgment of or for any treason or felony or felo de se, 
 shall cause any attainder or corruption of blood, or any 
 forfeiture or escheat : provided that nothing in the act 
 shall affect the law of forfeiture consequent upon out- 
 Admiuistrator lawry. The act provides for the appointment by the 
 crown of an administrator of the property of the con- 
 vict (nt). And all the real and personal property, in- 
 cluding choses in action (ii), to which the convict was, at 
 the time of his conviction, or shall afterwards, while he 
 shall continue subject to the operations of the act, become 
 or be entitled, shall vest in such administrator for all 
 the estate and interest of such convict therein (o). The 
 administrator has absolute power to let, mortgage, sell, 
 convey and transfer any part of such property as to him 
 shall seem fit (ji) . And after payment of costs and 
 expenses (q) and the debts and liabilities of the con- 
 vict (/•) and of compensation to persons who may have 
 suffered from any alleged criminal or fraudulent act of 
 the convict (s), and of allowances for any wife, child, or 
 reputed child, or any other relative, or reputed relative, 
 of the convict dependent upon him for support (f), the 
 property is to be preserved for the benefit of the con- 
 vict, and the surplus is to be restored to him or his 
 representatives on the completion of his sentence, or on 
 his pardon or death {ii). If no such administrator shall 
 have been appointed, an interim curator may be ap- 
 
 Interim cura 
 tor. 
 
 (i) Stokes V. Iloklen, 1 Keen, 
 145 ; Tfiompson''s Trusts, 22 Beav. 
 606. 
 
 (k) Stat. 33 & 34 Vict. c. 23, 
 passed 4th July, 1870. 
 
 (0 Sect. 1. 
 
 (m) Stat. 33 & 34 Vict. c. 23, 
 8. 9. 
 
 (») Ante, p. 4. 
 
 (o) Stat. 33 & 34 Viet. c. 23, 
 
 10. 
 
 {p) Sect. 12 ; see also sect. 17. 
 
 (q) Sect. 13. 
 
 (?•) Sect. 14. 
 
 («) Sect. 15. 
 
 (t) Sect. 16. 
 
 («) Sects. 7, 18.
 
 OF THE ALIENATION OF CIIOSES IN POSSESSION. Gl 
 
 point ed by justices in potty sessions to take care of the 
 property of the convict in the meantime (.r). 
 
 "With regard to the objects for which the alienation Gift for de- 
 of chattels personal is prohibited, gifts to charitable creditors, 
 purposes are not restricted, neither are corporations 
 excepted objects, as in the case of landed property (//). 
 But by the statute of the reign of Elizabeth (;:), the 
 gift or alienation of any lands, tenements, hereditaments, 
 goods and cJudtcU, made for the purpose of delaying, 
 hindering or defrauding creditors, is rendered void as 
 against them unless made upon good, which here means 
 ra/iiah/c, consideration, and bond fide to any person not 
 having at the time of such gift any notice of such fraud. 
 There are also more stringent provisions to the same 
 effect contained in the bankrupt laws, to which reference 
 will be hereafter made in ,the chapter on bankruj)tcy. 
 The fraudulent purpose intended by the statute of 
 Elizabeth can of course only be judged of by circum- 
 stances. 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 [a). But 
 if the assignment be made 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, 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 tlie meaning of the statute {h). Such 
 
 (.r) Sects. 21—26. 1 Smith'. s Leading Cases, 1; Ed- 
 
 {>/) See Principles of the Law wards v. Ilarboi, 2 T. Rep. 587. 
 of Real Property, 77, 13th ed. ; {b) Edwards v. Harben, 2 T. 
 
 80, 14th ed. Rep. 587 ; Martlndale v. Booth, 3 
 
 (;) Stat. 13 Eliz. c. 5. Barn. & Adol. 498 ; Reed v. mi- 
 
 (a) Twyne's case, 3 Rep. 80 b ; mot, 7 Ring. 577.
 
 02 OF CHOSES IN POSSESSION. 
 
 Mortgage of a tmnsactiou is in fact a mortgage of the goods, analogous 
 ^*^° '^^ to a mortgage of lands [e) . The property in the goods 
 
 passes at law by the deed to the mortgagee {d), whilst 
 the possession of them rightly remains with the mort- 
 gagor. The mortgagee, therefore, cannot maintain an 
 action of trover for the goods against a stranger until 
 default has been made by the mortgagor in payment of 
 the money secured {c). In this respect a mortgage of 
 goods differs from a mere pledge, in which the property 
 in the goods remains with the pledgor ( f) ; and the 
 pledgee, although he may have power to sell them, 
 obtains possession only {g), the right to retain which 
 enables him to maintain an action of trover (//). The 
 chief disadvantage in a mortgage of goods is, that, as 
 the goods continue in the possessifm of the mortgagor 
 as reputed owner, in the event of his bankruptcy, they 
 become liable, by virtue of provisions of the bankruptcy 
 laws, to be sold for the benefit of his creditors gene- 
 rally (/). For, under the Bankruptcy Act, 1883, the 
 property of a bankrupt divisible amongst his creditors 
 comprises all goods being, at the commencement of the 
 
 {(■) See Princdples of the Law be good. See 2 Davidson's Pre- 
 
 of Real Property, 422, IStli ed. ; cedents, 609, 2nd cd. ; Ex parte 
 
 442, Hth ed. ; "Williams's Con- Spnrroir, 2 De G., M. & G. 907. 
 
 veyancing Statutes, 1G4, 165. (/) As to the difference be- 
 
 {d) Gale v. BttrnelJ, 7 Q. B. tween a mortgage and a pledge, 
 
 850 ; see Williams's Conveyancing see AVilliams's Conveyancing Sta- 
 
 Statutes, 164—166. tutes, 164—166. 
 
 (e) Bradley v. Copley, 1 C. B. (y) Ante, pp. 33, 34. 
 
 685; Brierleyv. Kendall, n Q.B. {Ii) Lccjg v. Evans, 6 Mee. & 
 
 937. If the mortgagor should Wels. 36. 
 
 retain possession after default in (i) Ityall v. Bolle, 1 Atk. 165, 
 
 payment at the time sjiccified, it 170 ; S. C. nom. Eyall v. Roicles, 
 
 may possibly be doubted whether 1 Ves. sen. 348 ; Freshney v. Car- 
 
 the security would not then be rick, 1 H. & N. 653 ; Spackiita)i 
 
 void as against creditors imdcr v. Miller, 12 C. B., N. S. 659 ; 
 
 the statute of Elizabeth, for, by nornshy v. Millrr, 1 Ell. & Ell. 
 
 the terms of the deed, the mort- 192 ; Stansfeld v. Cuhitt, 2 De G. 
 
 gagor is only to enjoy possession & J. 222 ; Badyer v. Shaw, 2 
 
 taitil default. But the better YM. Sc'EU.. 4:72; Ex parte Harding, 
 
 opinion is that the deed will still L. R., 15 Eq. 223.
 
 OF THE AT.IKNATIOX 01" fllO'^KS IX POS=;E>;S10X. 63 
 
 bankrupt C}', 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 lie is the reputed owner thereof (,/). The law was 
 altered in this respect by sect. 20 of the Bills of Sale 
 Act, 1878 {k), Avhich enacted that chattels comprised in 
 a bill of sale, which had been and continued to be duly 
 registered under that Act, should 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, 18G9 (/). But sect. 20 of the Bills of Sale Act, 
 1878 (/.•), was repealed by the Bills of Sale Act, 1878, 
 Amendment Act, 1882 {ni), so far as regards any bill of 
 sale gireii hij vaij of sccurifi/ for iho paijinott of monoi/, 
 and not duly registered under the Act of 1878 before the 
 1st of November, 1882, the date of the commencement 
 of the Act of 1882. For the Act of 1882 does not 
 apply to any bill of sale duly registered before the 1st of 
 November, 1882, so long as the registration thereof is 
 not avoided by non-renewal or otherwise ; nor does the 
 Act apply to bills of sale given otherwise than by way 
 of security for the payment of money [n). It appears, 
 therefore, that a bill of sale of goods, given hi/ iraij of 
 secuvifij fo)' the payment of money, is not now protected 
 against the operation of the '* reputed ownership " pro- 
 visions of the bankruptcy laws (o), unless it should have 
 been duly registered under the Bills of Sale Act, 1878, 
 before the 1st of November, 1882, and the registration 
 thereof should not have been avoided by non-renewal or 
 
 (./) Stat. 4G & 47 Vict. c. 'yl, (/) Stat. 41 & 42 Vict. c. 313. 
 
 s. 44. The fonncr Baukruptcy (/) Stat. 32 & 33 Viet. c. 71 ; 
 
 Acts contained provisions to the sec stat. 46 & 47 Vict. c. 52, 
 
 same effect; see stats. 21 Jac. 1, s. 149, sub-s. 2. 
 c. 10, s. 11 ; 6 Geo. 4, c. IG, (w) Stat. 4.') & 4G Vict. c. 43; 
 
 s. 72 ; 12 & 13 Vict. c. 106, see ss. 1—3, l.j. 
 s. 125 ; 32 & 33 Vict. c. 71, s. 15; («) Sect. 3. 
 
 Ex parte WvuiJiehJ, He Florence, (o) See the cases cited iu note 
 
 10 Ch. D. 591. ((■) to p. 62, ante.
 
 64 ofCfioses in possession. 
 
 otherwise {p). Bills of sale given otherwise than by 
 way of security for the payment of money are still 
 regulated by the Bills of Sale Act, 1878 ; and therefore 
 are still protected by sect. 20 of that Act, in the event 
 of the bankruptcy of the grantor {q). 
 
 Bills of Sale The law relating to mortgages and other transfers of 
 
 Acts, 18o4 and '-' . 
 
 18GG. personal chattels made by bill of sale, is now regulated 
 
 by the Bills of Sale Acts, 1878 and 1882 (r). But the 
 Act of 1878 repealed two former statutes relating to 
 Registration l3ills of sale («). By these statutes every bill of sale of 
 sale. personal chattels, whereby the grantee should have 
 
 power to take possession of any effects therein comprised, 
 was required to be registered in the office of the Court 
 of Queen's Bench within twenty-one days, by filing the 
 same, or a copy thereof, in that office ; otherwise such 
 bill of sale was rendered void, so far as regards any of 
 the goods in the apparent possession of the grantor, as 
 against the trustee for the creditors of the grantor, in 
 case of his bankruptcy, and as against the assignees 
 under any assignment for the benefit of his creditors, 
 and as against all sheriffs' officers and other persons 
 seizing the effects in execution of any process of any 
 court of law or equity issued against the goods of the 
 grantor (??). Such bills of sale before the Act of 1854 
 were valid as against an execution creditor, though yoid 
 as against assignees under the bankruptcy of the grantor ; 
 and the Act of 1854 did not give to such bills of sale as 
 were filed under it any greater validity than they had 
 
 {p) Ex parte Izard, He Chappie, {t) Richards v. James, L. Rep., 
 
 23 Ch. D. 409. 2 Q. B. 285. But see Jessel, 
 
 {q) Swift v. Fannell, 24 Ch. D. M. R., Re Artistic Colour Print- 
 
 210. ing Co., Ex parte Fourdrinier, 21 
 
 {r) Stats. 41 & 42 Vict. c. 31 ; Ch. D. 510, 512 ; and compare 
 
 45 & 46 Vict. c. 43. Ex parte Blaiberg, Re Toomer, 23 
 
 (.s) Stats. 17 & IS Vict. c. 3G ; Ch. D. 251. 
 29 & 30 Vict. c. 90.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 65 
 
 before (ii). But if the bill of sale was not filed, it was 
 rendered void by the grantor committing an act of 
 bankruptcy before the grantee took possession of the 
 goods {v) ; and it was also rendered void as against an 
 execution, which it would not have been before the Act. 
 The expression " personal chattels " was interpreted by 
 the Act (.p) to mean goods, furniture, fixtures, and other Fixtures, 
 articles capable of complete transfer by delivery. But 
 the Act did not apply to fixtures, when they passed by a 
 conveyance of the premises to which they were affixed ; 
 and there was no difference in this respect between free- 
 holds and leaseholds ; for in each case fixtures, so long as 
 they remain fixed, form part of the premises (y) . It 
 was however held that if there were a power to sell or 
 take possession of the fixtures apart from the premises, 
 or if the fixtures were separately assigned, they would 
 not pass, unless the deed were registered [z). The Bills Registration 
 of Sale Act, 1866 (r/), provided for the renewal every every five 
 five years of the registration of bills of sale, by an affi- years, 
 davit to be filed in a given form that the secuiity was 
 still subsisting, without which the prior registration 
 ceased to be of any effect. 
 
 The Bills of Sale Act, 1878 {h), came into operation The Bills of 
 on the 1st January, 1879 (c), and it applies to every bill ^g^g ^^l' 
 
 {u) Stamfddr. Cubitt, 2 De G. 7 H. of L., E. & I. 484. See 
 
 & Jones, 222 ; Badger v. Shaw, Williams's Conveyancing Sta- 
 
 Q. B., 8 W. E,. 210 ; 6 Jm-., tutes, 62, 63. 
 N. S. 377 ; 2 Ell. & EU. 472 ; Ex {z) Ex parte Eaglish, in re Wild, 
 
 parte Harding, V.-C.B.,'L.'ReTp., L. E,., 8 Ch. 1072; Fcnwic/c v. 
 
 loEq. 223. Begbie, V.-C. M., L. R., 8 Ch. 
 
 ((') Ex parte Atiwater, In re 1075 ; JIaivtry v. ButUn, L. R., 
 
 Turner, 5 Ch. D. 27. 8 Q. B. 290 ; In re Trethoivan, 
 
 (.r) Sect. 7. ex parte Tweedy, 5 Ch. D. 559 ; 
 
 (y) Mather v. Eraser, 2 Kay fr Ex parte Brown, re Reed, 9 Ch. 
 
 J. 536 ; Waterfall v. Fcnnistone, D. 389. 
 
 G E. & B. 876 ; Boyd v. Shorrock, («) Stat. 29 & 30 Vict. c. 96. 
 
 V.-C. W., L. R., 5 Eq. 72; Ex {h) Stat. 41 & 42 Vict. c. 31. 
 
 parte Barclay, in re Joyce, L. R., (c) Sect. 2. 
 
 9 Ch. 576 ; Meux\. Jacobs, L. R., 
 
 W.P.P. F
 
 66 
 
 OF GUOSES IN POSSESSION. 
 
 Meaning of 
 term ' ' bill of 
 
 sale." 
 
 Meaning of 
 term "per- 
 sonal chat- 
 tels." 
 
 of sale executed on or after that day whereby the holder 
 or grantee has iDower, either with or without notice, and 
 either immediately or at any future time, to seize or 
 take possession of any personal chattels comprised in or 
 made subject to such bill of sale (r/). By sect. 4, the 
 expression "bill of sale," includes bills of sale, assign- 
 ments, transfers, declarations of trust without transfer, 
 inventories of goods with receipts thereto attached, or 
 receipts for purchase-monies of goods, and other assur- 
 ances of personal chattels, and also powers of attorney, 
 authorities, or licences to take possession of personal 
 chattels as security for any debt, and also any agree- 
 ment, whether intended or not to be followed by the 
 execution of any other instrument, by which a right in 
 equity to any personal chattels, or to any charge or 
 security thereon, shall be conferred ; but shall not in- 
 clude the following documents : that is to say, assign- 
 ments for the benefit of the creditors of the person 
 making or giving the same, marriage settlements, trans- 
 fers or assignments of any ship or vessel or any share 
 thereof, transfers of goods in the ordinary course of 
 business of any trade or calling, bills of sale of goods in 
 foreign parts or at sea, bills of lading, India warrants, 
 warehouse-keepers' certificates, warrants or orders for 
 the delivery of goods or any other documents used in 
 the ordinary course of business, as proof of the posses- 
 sion or control of goods, or authorizing, or purporting 
 to authorize, either by indorsement or by delivery, the 
 possessor of such document to transfer or receive goods 
 thereby represented. 
 
 The expression " personal chattels " shall mean goods, 
 furniture and other articles capable of complete transfer 
 by delivery, and (when separately assigned or charged) 
 fixtures and growing crops, but shall not include chattel 
 interests in real estate, nor fixtm'es (except trade ma- 
 
 {(J) Stat. 41 5: 42 Vict. e. 31, s. 3.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 67 
 
 chlneiy as hereinafter defined) wlien assigned together 
 with a freehold or leasehold interest in any land or 
 bnilding to which they are affixed, nor growing crops 
 when assigned together with any interest in the land on 
 which they grow, nor shares or interests in the stock, 
 funds, or securities of any government, or in the capital 
 or property of incorporated or joint stock companies, nor 
 choses in action, nor any stock or produce upon any 
 farm or lands which by virtue of any covenant or agree- 
 ment or of the custom of the country ought not to be 
 removed from any farm where the same are at the time 
 of making or giving of such bill of sale. 
 
 Personal chattels shall be deemed to be in the " ap- Apparent 
 J ' )i c 11 1 • • • possession. 
 
 parent possession oi the person making or giving a 
 bill of sale, so long as they remain or are in or upon 
 any house, mill, warehouse, building, works, yard, land, 
 or other premises occupied by him, or are used and en- 
 joyed by him in any place whatsoever, notwithstanding 
 that formal possession thereof may have been taken by 
 or given to any other person. " Prescribed " means 
 prescribed by rules made under the provisions of this 
 Act. 
 
 By sect. 0, trade machinery shall, for the pui'poses of Application 
 the act, be deemed to be personal chattels, and any machinerr. 
 mode of disposition of trade machinery by the owner 
 thereof which would be a bill of sale as to any other 
 personal chattels shall be deemed to be a bill of sale 
 within the meaning of the Act. For the purposes of the Meaning of 
 act " trade machinery " means the machiner}^ used in or *i™]jiQep'^' 
 attached to any factory or workshop : — 
 
 1st. Exclusive of the fixed motive powers, such as the 
 water-wheels and steam engines, and the steam- 
 boilers, donkey engines and other fixed appur- 
 tenances of the said motive powers ; and, 
 2nd. Exclusive of the fixed power machinerj^ such as 
 the shafts, wheels, drums, and their fixed appur- 
 tenances, which transmit the action of the motive 
 r2 
 
 trado
 
 68 
 
 OF ClIOSES IX POSSESSION. 
 
 "Factory or 
 Avorkshop." 
 
 powers to the other machmerj", fixed and loose ; 
 and, 
 3rd. Exclusive of the pipes for steam, gas and water 
 in the factory or workshop. 
 
 The machinery or effects excluded by this 
 
 section from the definition of trade machinery 
 
 shall not be deemed to be personal chattels within 
 
 the meaning of the act. 
 
 " Factory or workshop " means any premises on which 
 
 any manual labour is exercised by way of trade, or for 
 
 purposes of gain, in or incidental to the following 
 
 purposes or any of them ; that is to say, 
 
 (a) In or incidental to the making any article or part 
 
 of an article ; or 
 
 (b) In or incidental to the altering, repairing, orna- 
 
 menting, finishing of any article ; or 
 
 (c) In or incidental to the adapting for sale any 
 
 article (e). 
 
 Certain in- 
 stnimeuts 
 giving powers 
 of distress to 
 he subject to 
 act. 
 
 (Sect. 6) Every attornment, instrument or agreement, 
 not being a mining lease, whereby a power of distress is 
 given or agreed to be given by any person to any 
 other person by way of security for any present, future, 
 or contingent debt or advance, and whereby any rent is 
 reserved or made payable as a mode of providing for the 
 payment of interest on such debt or advance, or other- 
 wise for the purpose of such security only, shall be 
 deemed to be a bill of sale within the meaning of this 
 Act, of any personal chattels which may be seized or 
 taken under such power of distress. Provided that 
 nothing in this section shall extend to any mortgage 
 of any estate or interest in any land, tenement or here- 
 ditament which the mortgagee, being in possession, shall 
 have demised to mortgagor as his tenant at a fair and 
 reasonable rent. 
 
 (e) Stat. 41 & -12 Vict. c. 31, r. -5.
 
 OF THE Al.lE^ATION OF ('HOSES IN I'OSSESSION. 69 
 
 (Sect. 7) No fixtures or growing crops shall bo Fixtures or 
 deemed, under this act, to be separately assigned or uotTo^bo'^'^^^^ 
 
 charged by reason only that they are assigned by deemed 
 
 , , . , . ... , , separately as- 
 
 separate words, or that power is given to sever them signed when 
 from the land or buildins- to whicli they are affixed, or ^^^^ ^'*"5^ ^, 
 
 ° / ' _ piisxcs by the 
 
 from the land on which they grow, without otherwise same instru- 
 taking possession of or dealing with such land or build- ^^^ ' 
 ing, or land, if by the same instrument any freehold or 
 leasehold interest in the land or building to which such 
 fixtures are affixed, or in the land on which such crops 
 grow, is also conveyed or assigned to the same persons 
 or person. The same rule of construction shall be 
 applied to all deeds or instruments, including fixtures 
 or growing crops, executed before the commencement of 
 the act, and then subsisting and in force, in all questions 
 arising under any bankruptcy, liquidation, assignment 
 for the benefit of creditors, or execution of any process 
 of any court, which shall take place or bo issued after 
 the commencement of the Act (/'). 
 
 (Sect. 8) Every bill of sale to which the act applies Avoidance of 
 shall be duly attested, and shall be registered under the bill of sale in 
 act within seven days after the making or giving thereof, certain cases, 
 and shall set forth the consideration for which such bill 
 of sale was given (17), otherwise such bill of sale, as 
 against all trustees or assignees of the estate of the 
 person whose chattels, or any of them, are comprised 
 
 (/) See Uv parte Moore and ChaUinor, re Eogers, IG Cli. D. 
 
 Robinson's Banking Company, in re 260 ; Credit Co. v. Pott, 6 Q. B. 
 
 Armytage, L. R., 14 Ch. D. 379. D. 295; Hamilton v. Chaine, 7 
 
 As to the construction placed on Q. B. D. 1, 319 ; Ex parte JRolph, 
 
 the Bills of Sale Act, 1854, see re Spindler, 19 Ch. D. 98 ; Ex 
 
 ante, p. 65. parte Firth, re Cowburn, 19 Ch. 
 
 {g) See Ex parte National Jlcr- T). 419 ; Ex parte Topplcwcll, re 
 
 cantile Bank, re Hayncs, 15 Ch. Storey, 21 Ch. D. 73; Ex parte 
 
 D. 42; Ex parte Charing Cross Bolland, re Roper, 21 Ch. D. 543; 
 
 Advance and Deposit Bank, re Ex parte Johnson, re Chapman, 
 
 Parker, 16 Ch. D. 35 ; Ex parte W. N. 1884, p. 80.
 
 70 OF (HOSES IX POSSESSION. 
 
 in sucli bill of sale under tlie law relating to bankruptcy 
 or liquidation, or under any assignment for the benefit 
 of the creditors of such person, and also as against all 
 sheriffs' officers and other persons seizing any chattels 
 comprised in such bill of sale, in the execution of any 
 process of any court authorizing the seizure of the 
 chattels of the person by whom or of whose chattels 
 such bill has been made, and also as against every 
 person on whose behalf such process shall have been 
 issued, shall be deemed fraudulent and void, so far as 
 regards the property in or right to the possession of any 
 chattel comprised in such bill of sale which, at or after 
 the time of filing the petition for bankruptcy or liqui- 
 dation, or of the execution of such assignment, or of 
 executing such process (as the case may be), and after 
 the expiration of such seven days are in the possession 
 or apparent possession of the person making such bill 
 of sale (or of any person against whom the process has 
 issued under or in the execution of which such bill has 
 been made or given, as the case may be) (//), 
 
 Avoidance of (Sect. 9) Where a subsequent bill of sale is executed 
 cate^Mls of ' ""^thiu or ou the expiration of seven days after the exe- 
 sale. cution of a prior unregistered bill of sale, and comprises 
 
 all or any part of the personal chattels comprised in 
 such prior bill of sale, then, if such subsequent bill of 
 sale is given as a security for the same debt as is 
 secured by the prior bill of sale, or for any part of such 
 debt, it shall, to the extent to which it is a security for 
 the same debt or part thereof, and so far as respects the 
 personal chattels or part thereof comprised in the prior 
 bill, be absolutely void, unless it is proved to the satis- 
 
 (/() Under the Bills of Sale and the grantee ; Davis v. Good- 
 Act, 1878, a hill of sale not made man, 5 C. P. D. 128; Ex parte 
 in accordance with the conditions Bla'ihcrg, re Toomer, 23 Ch. D. 
 imposed by the act, is neverthe- 254 ; Hichson v. Barlow, 23 Ch. 
 less valid as between the arantor D. 690.
 
 OF THE AMEKA'IION OF CHOSES IN POSSESSION. 71 
 
 faction of the court having cognizance of the case that 
 the subsequent bill of sale was ho)id fide given for the 
 purpose of correcting some material error in the prior 
 bill of sale, and not for the purpose of evading the Act. 
 
 (Sect. 10) A bill of sale shall be attested and regis- Mode of re- 
 tered under the act in the following manner : — - of sale. ° 
 
 (1.) The execution of every bill of sale shall bo 
 attested by a solicitor of the Supremo Court (/), 
 and the attestation shall state that before the 
 execution of the bill of sale the effect thereof 
 has been explained to the grantor by the attest- 
 ing solicitor {k) : 
 
 (2.) Such bill, with every schedule or inventory thereto 
 annexed or therein referred to, and also a true 
 copy of such bill (/), and of every such schedule 
 or inventory, and of every attestation of the 
 execution of such bill of sale, together with an 
 affidavit of the time of such bill of sale being 
 made or given, and of its due execution and 
 attestation (in), and a description of the residence 
 and occupation of the person making or giving 
 the same (or in case the same is made or given 
 by any person under or in the execution of any 
 process, then a description of the residence and 
 occupation of the person against whom such 
 process issued), and of every attesting witness to 
 such bill of sale (;?), shall be presented to, and 
 
 (t) See Mill V. Kirkicood, 28 {m) See S/iarpe v. Birch, 8 Q. 
 
 W. R. 3o8; Seal v. Glarulyc, 7 B. D. Ill ; Ford v. Kettle, 9 Q. 
 
 Q. B. D. 51G; Riiwardcnv. Bo- B. D. 139; Ex 2)artc Bolhaid, re 
 
 herts, 9 Q. B. D. 137. Itoper, 21 Ch. D. 543. 
 
 (/.•) See Ex jjarte National Mcr- [x) See Ex parte FoppleiveU, re 
 
 cantilc Bank, re Haynes, 15 Ch. D. Storey, 21 Ch. D. 73 ; Me Hciccr, 
 
 42; Ex parte Bolland, re Roper, ex parte Kahen, ib. S7 1 ; Ex parte 
 
 21 Ch. D. 543. Webster, re Morris, 22 Ch. D. 
 
 {/) See Re Hewer, ex 2)artc Ka- 136 ; Blaiben/ v. Fa}-I:e, 10 Q. B. 
 
 he>?, 21 Ch. D. 871. D. 00.
 
 72 
 
 OF CHOSES IN POSSESSION. 
 
 the said copy and affidavit shall be filed with the 
 registrar within seven clear days after the 
 making or giving of such bill of sale, in like 
 manner as a warrant of attorney in any personal 
 action given by a trader is now by law required to 
 be filed : 
 (3.) If the bill of sale is made or given subject to any 
 defeasance or condition, or declaration of trust 
 not contained in the body thereof, such de- 
 .feasance, condition or declaration shall be deemed 
 to be part of the bill, and shall be written on 
 the same paper or parchment therewith before 
 the registration, and shall be truly set forth 
 in the copy filed under the act therewith and 
 as part thereof, otherwise the registration shall 
 be void. 
 In case 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 regis- 
 tration respectively, as regards such chattels (o) . A 
 transfer or assignment of a registered bill of sale need 
 not be registered. 
 
 Kenewal of 
 registration. 
 
 By sect. 11, the registration of a bill of sale, whether 
 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 sale without a renewal 
 or further renewal (as the case may be) , the registration 
 shall become void. A renewal of registration shall not 
 become necessary by reason only of a transfer or assign- 
 ment of a bill of sale. 
 
 Form of (Scct. 12) The registrar shall keep a book (in the 
 
 regis er. ^^^ called " the register ") for the purposes of the Act, 
 
 {<>) See ConcUi/ v. Steer, 7 Q.B. D. 520; Lyons v. Tucker, ib. 523.
 
 OF THE ALIEJ^ATION OF CIIOSES IN FOSSESSIOX, 7'6 
 
 and shall, ui^on the filing of any bill of salo or copy- 
 under the Act, enter therein in the form set forth in the 
 second schedule (B.) to the Act annexed, or in any 
 other prescribed form, the name, residence and occupa- 
 tion of the person by wliom the bill was made or given 
 (or in case the same was made or given by any person 
 under or in the execution of process, then the name, 
 residence and occupation of the person against whom 
 such process was issued, and also the name of the person 
 or persons to whom or in whose favour the bill was 
 given), and the other particulars shown in the said 
 schedule, or to be prescribed under the Act, and shall 
 number all such bills registered in each year consecu- 
 tivel}', according to the respective dates of their regis- 
 tration. 
 
 Upon the registration of any affidavit of renewal the 
 like entry shall be made, with the addition of the date 
 and number of the last previous entry relating to the 
 same bill, and the bill of sale or copy originally filed 
 shall be thereupon marked with the number affixed to 
 such affidavit of renewal. The registrar shall keep an 
 index of the names of the grantors of registered bills of 
 sale with reference to entries in the register of the bills 
 of sale given by each such grantor. Such index shall 
 be arranged in divisions corresponding with the letters 
 of the alphabet, so that all grantors whose surnames 
 begin with the same letter (and no others) shall be 
 comprised in one division, but the arrangement within 
 each such division need not be strictly alphabetical. 
 
 (Sect 15) Subject to and iu accordance with any Entry of 
 rules to be made under and for the purposes of the Act, satisfaction. 
 the registrar may order a memorandum of satisfaction to 
 be written upon any registered copy of a bill of sale, 
 upon the prescribed evidence being given that the debt 
 (if any) for which such bill of sale was made or given 
 has been satisfied or discharged.
 
 74 OF CHOSES IN POSSESSION. 
 
 Copies may bo (Sect. 16) Any person shall be entitled to liave an 
 ' ■ office copy or extract of any registered bill of sale, and 
 affidavit of execution filed therewith, or copy thereof, 
 and of any affidavit filed therewith, if any, or registered 
 affidavit of renewal, upon j)ayiug for the same at the 
 like rate as for office copies of judgments of the High 
 Court of Justice ; and any copy of a registered bill of 
 sale, and affidavit purj)orting to be an office copy thereof, 
 shall in all courts and before all arbitrators or other 
 persons be admitted Vi^ prima facie evidence thereof, and 
 of the fact and date of registration as shown thereon. 
 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; such payment shall be made by a judicature 
 stamp {p). 
 
 Order and (Sect. 20) Chattels comprised in a bill of sale which 
 
 c isposi lou. j^^g been and continues to be duly registered under the 
 
 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 {q). 
 
 Bills of Sale The Bills of Sale Act, 1878, Amendment Act, 1882 (r) , 
 Act of 1882. came into operation on the 1st of November, 1882, which 
 date is therein referred to as the commencement of the 
 act (.s). This act contains the following provisions : — 
 
 {p) Provision is now made for Statutes, 262, 270, 479 — 491 ; 
 
 an official search in tlae register Rulesof the Supreme Court, 1883, 
 
 of bills of sale, and the issue of a Order LXI., rule 23. 
 certificate of the result of such a {q) Re Hewer, ex parte Kahcn, 
 
 search, at the instance of any 21Ch. D. 871. See rt;a<«, pp. 62 — 
 
 person requiring the same; so 64. And see stat. 46 & 47 Vict, 
 
 that now a man may either search c. 52, s. 149, sub-s. 2. 
 the register himself, or cause an (;•) Stat. 45 & 46 Vict. c. 43. 
 
 official search to be made; see (s) Sects. 1, 2. This act does 
 
 stat. 45 & 46 Vict. c. 39, s. 2, and not extend to Scotland or Ireland, 
 
 the rules made thereunder, set s. 18. 
 out in Williams's Conveyancing
 
 Ol'" THE ALIENATION OF (HOSES IN I'OSSE.SSION. 7o 
 
 (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 construed 
 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 tlie registration thereof is not avoided by non- 
 renewal or otherwise (/). 
 
 The expression " bill of sale " and other expressions 
 in this Act have the same meaning as in the principal 
 Act, except as to bills of sale or other documents men- 
 tioned in sect, 4 of the principal Act which may be given 
 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 (x) . 
 
 (Sect. 4) Every bill of sale shall have annexed thereto Scliedule. 
 or written thereon a schedule containing an inventory 
 of the personal chattels comprised in the bill of sale ; 
 and such bill of sale, save as hereinafter mentioned, shall 
 have effect only in respect of the personal chattels 
 specifically described in the said schedule ; and shall 
 be void, except as against the grantor, in respect of any 
 personal chattels not so specifically described. 
 
 (Sect. 5) Save as hereinafter mentioned, a bill of sale 
 shall be void, except as against the grantor, in respect of 
 any personal chattels specifically described in the schedule 
 
 (<) Kv parte Izard, re Chappie, Hkkson v. Darlow, 23 Cli. 1). 
 
 23 Ch. D. 409 ; see ante, p. 03. 690. 
 
 It has been held that the Act of («) See ante, pp. G6— 68. 
 
 1882 does not apply to an iinrc- (.)) The effect of sect. 3 is that 
 
 gistercd bill of sale executed more the Act of 1882 applies only to 
 
 than seven days before the 1st bills of sale given by way of secu- 
 
 November, 1882, while the Act of rity for the payment of money; 
 
 1878 was in force (see ante, pp. Sic if t v. PanneU, 24 Ch. D. 210; 
 
 69, 70, and note (//) to p. 70) ; see ante, pp. 63, 61.
 
 76 OF CIIOSES IN POSSESSION. 
 
 thereto of which the grantor was not the true owner at 
 the time of the execution of the bill of sale (y) . 
 
 (Sect. 6) Nothing contained in the foregoing sections 
 of this Act shall render a hill of sale void in respect of 
 any of the following things (that is to say), 
 
 (1) Any growing crops separately assigned or charged 
 
 where such crops were actually gro\\ing at the 
 time when the bill of sale was executed. 
 
 (2) Any fixtures separately assigned or charged, and 
 
 any plant or trade machinery where such 
 fixtures, plant, or trade machinery are used in, 
 attached to, or brought upon any land, farm, 
 factory, workshop, shop, house, warehouse, or 
 other place in substitution for any of the like 
 fixtures, plant, or trade machinery specifically 
 described in the schedule to such bill of sale (s) . 
 
 Seizure. (Sect. 7) Personal chattels assigned under a bill of 
 
 sale shall not be liable to be seized or taken possession 
 of by the grantee for any other than the following 
 causes : — 
 
 (1) If the grantor shall make default in payment of 
 
 the sum or sums of money thereby secured at 
 the time therein provided for j^ayment, or in 
 the performance of any covenant or agreement 
 contained in the bill of sale, and necessary for 
 maintaining the security [a) ; 
 
 (2) If the grantor shall become a bankrupt, or suffer 
 
 the said goods or any of them to be distrained 
 for rent, rates, or taxes ; 
 
 (3) If the grantor shall fraudulently either remove 
 
 or suffer the said goods, or any of them, to be 
 removed from the premises ; 
 
 (y) See ante, pp. 41 — 43. («) See Hammond v. Hocking, 
 
 \z) See ante, pp. 42, 43. 12 Q. B. D. 291.
 
 OF THE ALIEN ATIOK' OF CHOSES IN FOSSESSION. 77 
 
 (4) If the grantor sliall not, without reasonable 
 
 excuse, upon demand in writing by tlie grantee, 
 produce to liim his last receipts for rent, rates, 
 and taxes {b) ; 
 
 (5) If execution shall have been levied against the 
 
 goods of the grantor under any judgment at 
 law : 
 Provided that the grantor may within five days from 
 the seizure or taking possession of any chattels on account 
 of any of the above-mentioned causes, apply to the 
 High Court, or to a judge thereof in chambers, and such 
 court or judge, if satisfied that by payment of money 
 or otherwise the said cause of seizure no longer exists, 
 may restrain the grantee from removing or selling the 
 said chattels, or may make such other order as may 
 seem just (c). 
 
 (Sect. 8) Every bill of sale shall be duly attested. Registration. 
 and shall be registered under the principal Act within 
 seven clear days after the execution thereof, or if it is 
 executed in any place out of England then within 
 seven clear days after the time at which it would in the 
 ordinary course of post arrive in England if posted 
 immediately after the execution thereof ; and shall truly 
 set forth the consideration for which it was given ; 
 otherwise such bill of sale shall be void in respect of the 
 personal chattels comprised therein. 
 
 (Sect. 9) A bill of sale made or given by way of Form of bill 
 security for the payment of money by the grantor ^ ^^ ®' 
 thereof shall be void unless made in accordance with 
 the form in the schedule to this Act annexed (d). 
 
 {b) See Ux parte Cotton, 11 Q. before the commeucemeut of the 
 
 B. D. 301. act; Ex parte Cotton, 11 Q. B. 
 
 (c) It bas been held that the D. 301 ; see sect. 13, below, 
 provisions of sect. 7 apply to the {d) Sco Daris v. J]i'.rto>i, 10 Q.'B. 
 
 case of the seizure of goods under D. 414 ; 11 Q. B. D. 537 ; Melville 
 
 a bill of sale made and registered v. Strbu/i-r, VI Q. B. D. 13'2; Ite
 
 ^O OF CllOSES IN POSSESSION. 
 
 AlleBtatioii. (Sect. 10) The execution of every bill of sale by the 
 
 grantor shall be attested by one or more credible wit- 
 ness or witnesses, not being a party or parties thereto. 
 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, is hereby repealed (e). 
 
 Local regis- 
 tration. 
 
 (Sect. 11) Where the affidavit (which under sect. 10 
 of the principal Act is required to accompany a bill of 
 
 Williams, ex parte Pcarce, 25 Ch. 
 D. 65G ; Hammond v. Hoeking, 12 
 Q. B. D. 291. The schedule to 
 the act is as follows : — 
 
 Form of Bill of Sale. 
 Tills indenture made the 
 day of , between A. B. 
 
 of of the one part, 
 
 and C. D. of of 
 
 the other part, witnesseth that 
 in consideration of the sum of 
 £ now paid to A. B. by CD., 
 the receipt of which the said 
 A. B. hereby acknowledges [or 
 whatever else the consideration may 
 le'], he the said A. B. doth here- 
 by assign unto C. D. his execu- 
 tors, administrators, and assigns, 
 all and singular the several chat- 
 tels and things specifically de- 
 scribed in the schedule hereto 
 annexed by way of security for 
 the payment of the sum of £ , 
 and interest thereon at the rate 
 of per cent, per annum [or 
 
 ichatever else may he the ratc'^. 
 And the said A . B. doth further 
 agi'ec and declare that he will 
 duly pay to the said C. D. the 
 principal sum aforesaid, together 
 
 with the interest then due, by 
 ec^ual payments of £ on 
 
 the day of [or whatever 
 
 else may be the stipulated times or 
 time of 2Myment'\. And the said 
 A. B. doth also agree with the 
 said C. D. that he will [here in- 
 sert terms as to insurance, payment 
 of rent, or otherivise, u'hich the 
 parties may agree to for the main- 
 tenance or defeasance of the secu- 
 rity]. 
 
 Provided always, that the chat- 
 tels hereby assigned shall not be 
 liable to seizure or to be taken 
 possession of by the said C. D. 
 for any caiise other than those 
 specified in section 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']. 
 
 A form of a bill of sale in ac- 
 cordance with the Act is given 
 in Williams's Conveyancing Sta- 
 tutes, p. 529. 
 
 (e) See ante, p. 71.
 
 OF THE ALIENATION OF CIIOSKS IN I'OSSESSION. 79 
 
 sale when preseuted 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 {g), or where 
 the bill of sale describes the cliattels enumerated therein 
 as being in some place outside the said London bank- 
 ruptcy district, the legistrar, under the principal Act, 
 shall forthwith and within three clear days after regis- 
 tration in the principal registrj^, and in accordance with 
 the prescribed directions, transmit an abstract in the 
 prescribed form of the contents of such bill of sale to 
 tlie county comi registrar in whose district such places 
 are situate, and if such places are in the districts of 
 different registrars to each such registrar. 
 
 Every abstract so transmitted shall be filed, kej)t, and 
 indexed by the registrar of the county court in the 
 prescribed manner, and any person may search, inspect, 
 make extracts 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 (//). 
 
 (Sect. 12) Every bill of sale made or given in eonsi- Bill of sale to 
 deration of any sum imder thirty pounds shall be void. 
 
 secure less 
 than 30^ 
 
 (Sect. 13) All personal chattels seized, or of which Chattels 
 possession is taken after the commencement of this Act, v*jJi"f "ale 
 under or by virtue of any bill of sale (whether regis- 
 tered 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 
 
 (/) See ante, p. 71. (/') See ante, p. 74, inid s. IG, 
 
 (ff) See now stat. 46 & 47 Vict. below. 
 c. 52, ss. 96, 149 (siib-s. 2).
 
 80 OF CiroSES IN POSSESSION. 
 
 spld until after tlie expiration of five clear days from 
 the day they were so seized or taken possession of (?'). 
 
 (Sect. 14) A bill of sale to which this Act applies 
 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 the 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 (k) . 
 
 (Sect. 16) So much of the sixteenth section of the 
 principal Act as enacts that any person shall be entitled 
 at all reasonable times to search the register and every 
 registered bill of sale upon pajanent of one shilling for 
 every copy of a bill of sale inspected (/) 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 
 
 {i) See sect. 7, ante, p. 76. (l) See ante, p. 74. 
 
 (/t) See ante, pp. 69, 74.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 81 
 
 made by a judicature stamp : Provided .tliat the said 
 extracts shall he 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 {m) . 
 
 (Sect. 17) Nothing in this Act shall apply to any 
 debentures issued by any mortgage, loan, or other 
 incorporated company, and secured upon the capital, 
 stock, or goods, chattels, and eflFects of such company. 
 
 Choses in possession have long been liable to invo- luvoluntary 
 luntary alienation for the payment of the debts of their payment of 
 owner. On the decease of any person, his personal <iebts. 
 property generally has always been liable, in the first 
 place, to the payment of his debts of every kind. And 
 if a creditor take proceedings against his debtor in the 
 debtor's lifetime, a sale of his goods and chattels may 
 be procured by means of a Avrit of fieri facias (fi. fa.) Writ of fieri 
 issued in execution of the judgment of the court. This 
 writ is of very ancient date, and is usually said to be 
 given by the common law ; though some supj)ose that 
 its name arose from the wording of the statute of 
 Edward I. [n), by which the writ of elegit was pro- 
 vided (o). The writ dii-ects the sheriff to cause the 
 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. 
 And the seizure and sale of the goods of any person on 
 an execution, under process in an action in any court, 
 or in any civil proceeding in the High Court of Justice, 
 
 ()h) See note (/;) to p. 74, ante. Law of Real Property, 85, 13th 
 
 («) Stat. I3E(lw.I. c. 18, called ed. ; 87, 88, 14th ed. 
 
 the Statute of Westminster the (o) Bac. Abr. tit. Execution 
 
 Second. See Principles of the (C). 
 
 W.P.P. G
 
 82 OF CHOSES IX rOSSESSlON. 
 
 is now an act of banki-uptcy (;>). Goods however are 
 not, as lands formerly were, affected by the mere entry 
 of a jiuhjmoit of a comi of law against the owner. 
 The debtor was always allowed to alienate his goods 
 until the writ of execution was issued ; although by a 
 fiction of law, all judicial proceedings, writs of execu- 
 tion 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. 
 Statute of relating back to that day, but subsequently issued. To 
 remedy this evil, it was enacted by one of the sections 
 of the Statute of Frauds (r), that no writ of fieri facias 
 or other writ of execution shall bind the property of 
 the goods against which it is sued, Ijut from the time 
 that such "svrit shall be delivered to the sheriff, under- 
 sheriff, or coroner, to be executed ; and the officer is 
 required, upon receipt of the WTit, to indorse on it 
 (without fee) the day of the month and year on which 
 he received it. Goods and chattels might therefore be 
 safely alienated, ulthough judgment might exist against 
 the owner, provided a writ of execution were not actually 
 in the hands of the sheriff. And a statute of the jDre- 
 sent reign now provides that no writ of execution shall 
 prejudice the title to goods acquired by any person bond 
 fide, and for a valuable consideration, before the actual 
 seizm^e thereof by vii'tue of such writ ; provided such 
 person had not, at the time when he acc[uired such title, 
 notice that such writ, or any other writ under which 
 the goods might be seized, had been delivered to the 
 officer and remained unexecuted in his hands (s). It 
 
 {p) Stat. -IG & 47 Vict. c. 52, (/•) Stat. 29 Car. II. c. 3, s. IG. 
 
 8. 4 (1, f). (i) Stat. 19 & 20 Vict. c. 97, 
 
 (<?) Com. Diy. tit. Execution s. 1 ; Gladstone \. Fadwick, L,. H., 
 
 (D 2) ; A>io)i., 2 Vent. 218. See 6 Ex. 203. See ILobsou v. T/iel- 
 
 2 Sugd. Vend. & Pur., 9th ed. lusoii, L. Rep., 2 Q. B. 642, qu. ? 
 198.
 
 OF THE ALIENATION OF CHObES IN POSSESSION. 83 
 
 has been decided that an alienation to secure or satisfy 
 another creditor is not void within the above-mentioned 
 statute of the 13 Elizabeth (f), although made "witli the 
 intention of defeating an expected execution of the 
 judgment creditor {ii). Formerly, besides the sale of 
 goods under the writ of Jicrl fdcias, there might also be 
 a writ of Ivvdri facias, by which the sheriff levied the Levari facias, 
 corn and other present profit which grew on the lands, 
 together with the rents then due, and the cattle there- 
 on (.?■). But by the Bankruptcy Act, 1<S83 (y), which 
 came into operation immediately after the 31st of De- 
 cember, 1883, it was enacted that no writ of levari facias 
 should thereafter be issued in any civil proceeding. 
 This writ had fallen out of use long before (;:) . And 
 formerly goods might be taken in execution under a 
 writ of elegit, by which the goods of the debtor were Elegit, 
 delivered to his creditor at an appraised value, together 
 with possession of his lands (r^). But by the Bank- 
 ruptcy Act, 1883, it is enacted that the sheriff shall 
 not under a writ of elegit deliver the goods of a debtor, 
 nor shall a writ of elegit extend to goods (/>). And the 
 
 (0 Htat. 13 Eliz. c. f), aide, lithed. And see the old forms 
 
 p. Gl. of this writ and of the writ of 
 
 (w) Wood V. Dixie, 7 Q. B. /. fa., 9 Adol. & Ell. 986 ct 
 
 892 ; Hale v. Saloon Omnibus Com- scq. ; ') New Cases, 366 ct seq. 
 
 panif, 4 Drew. 492. See also The last form of the writ of 
 
 Gladstone v. Padwic/:, L. E., C elcyit, and the present form of 
 
 Ex. 203. the writ of/, fa., will be found 
 
 (.(■) 2 Wins. Saimders, 68, a, in Appendix H. to the Rules of 
 
 u. (1). the Supreme Court, 1883; see 
 
 {y) Stat. 46 & 47 Vict. c. o2, W. N. 4th Aug. 1883. 
 
 s. 146, sub-s. 2. (i) Stat. 46 & 47 Vict. c. 52, 
 
 {z) See 3 Black. Comm. 417. s. 146, eub-s. 1. This enactment 
 
 (a) Piillen v. Furheckc, 1 Ld. came into operation immediately 
 
 Raym. 346 ; E.c parte Allot, re after the 31st December, 1883, 
 
 Goitrlay, \o Ch. D. 447 ; llouyh and did not apply to goods pre- 
 
 V. Windii.s, 12 Q. B. D. 244 ; see viously seized under a writ of 
 
 Principles of the Law of Real elegit; Hough v. TFindus, 12 Q. 
 
 Property, 85, 13th ed. ; 87, 88, B. D. 224. See also lie Windus, 
 
 a 2
 
 84 OF CHOSES IN POSSESSION. 
 
 same act repealed the words of the Statute of West- 
 minster the Second (c), which empowered the sheriff to 
 deliver the debtor's chattels to his creditor {d). 
 
 It is enacted by a statute of the present reign that the 
 wearing apparel and bedding of any judgment debtor 
 or his family, and the tools and implements of his trade 
 (not exceeding in the whole the value of five pounds), 
 shall not be liable to seizure under any execution or 
 order of any court against his goods and chattels [e). 
 The court And it is provided by the Rules of the Supreme Court, 
 gale. 1883 (/), that when goods or chattels have been seized 
 
 in execution by a sheriff or other officer charged with 
 the execution of process of the High Coui't, 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 application of 
 the proceeds of the sale in such manner and upon such 
 terms as may be just. By the Bankruptcy Act, 1883 (^), 
 where the sheriff sells the goods of a debtor under an 
 execution for a sum exceeding twenty pounds (including 
 legal incidental expenses), the sale shall, imless the court 
 from which the process issued otherwise orders, be made 
 by public auction, and not by bill of sale or private 
 contract, and shall be publicly advertised by the sheriff 
 on and during three days next preceding the day of 
 sale. 
 
 ex parte Hough, W. N. 1884, (/) Orel. LVII. r. 12. This 
 
 p. 55. The word "goods" in rule reproduces in effect Stat. 23 
 
 this enactment means chattels & 24 Vict. c. 126, 8. 13, which 
 
 personal; see s. 168 of the Act. was repealed by Stat. 46 & 47 
 
 [c) Stat. 13 Edw. 1, c. 18. Vict. c. 49, saving the jurisdic- 
 See Principles of the Law of Real tion thereby established, and re- 
 Property, 85, 13th ed. ; 87,88, serving the power of making rules 
 14th ed. of court as to the matters con- 
 
 {(l) Stat. 46 & 47 Vict. c. 52, tained therein. See Scarlett v. 
 
 s. 169. Sanson, 12 Q. B. D. 213. 
 
 {e) Stat. 8 & 9 Vict. c. 127, [g] Stat. 46 & 47 Vict. c. 52, 
 
 s. 8. s. 145.
 
 OF THE ALIENATION OF CHOSES IX POSSESSION. 85 
 
 Choses in possession are also liable to involuntary Baukruptcy. 
 alienation on the bankruptcy of their owner. In this Property now 
 event, all such property as may belong to or be vested trustoo! ^ 
 in the bankrupt at the commencement of the bankruptcy, 
 or may be acquired by or devolve on him before his 
 discharge, except property held by him on trust for 
 any other person, and except 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 \vhole, 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 {/i). Under the Bank- 
 ruptcy Act, 1869, the bankrupt's property vested first 
 in the registrar of the Court of Bankruptcy, and then 
 in the trustee appointed by the creditors under the 
 Act(/). And under the Bankruptcy Act, 1861, tlie Under pre- 
 property of the bankrupt vested first in the official ^'lousActpro- 
 
 . . 1 T 5 • perty vested 
 
 assignee, and then m the creditors assignees (k) . In in assignees. 
 
 order to prevent traders from obtaining false credit 
 
 from the possession of property which ^vas not their own, 
 
 it was provided by former bankruptcy acts (/), that if Goods in the 
 
 any bankrupt at the time he became bankrupt should orderor°dis- 
 
 by the consent and permission of the true owner thereof position of a 
 
 have in his possession, order or di.sposifion, any goods or 
 
 chattels, whereof he was reputed owner, or whereof he 
 
 had taken upon him the sale, alteration or disposition as 
 
 owner, the Court of Bankruptcy should have power to 
 
 order the same to be sold and disposed of for the benefit 
 
 (/;) Stat. 4G & 47 Vict. c. 52, s. 11 ; G Geo. IV. c. 16, s. 72; 
 
 83.20,21,44,54. See the chap- 1 & 2 Will. IV. c. 56, s. 7; 
 
 ter on Bankruptcy, below. 5 & 6 Vict. c. 122, s. 59 et scq. ; 
 
 [i) Stat. 32 & 33 Vict. c. 71, 12 & 13 Vict. c. 106, s. 125 ; 
 
 ss, 17, 83, paragraph (6). Uamiltony. licU, 10 Ex. Rep. 545; 
 
 (A-) Stat. 24 & 25 Vict. c. 134, 18 Jur. 1109 ; Reynolds v. Hall, 
 
 ss. 108, 117. 4 H. & N. 519; JToklcmess v. 
 
 (/) Stats. 21 Jac. I. c. 19, Ernil:i», 2 Be Cr.,F. & J. loH.
 
 86 OF CHOSES IX POSSESSIOX. 
 
 of the creditors under the bankruptcy. But it was held 
 that, until an order for the sale of such goods had been 
 made by the court, no property in them vested in the 
 assignees (;»), and the order was required to specify the 
 particular goods which were to be sold (;(). The above 
 provision was apparently extended by the Bankruptcy 
 Act, 1861 (o), to all persons whether traders or not. 
 Baukruptcy And by the Bankruptcy Act, 1869 (/;), the property of 
 Act, 1869. ^1^^ bankrupt divisible amongst his creditors comprised 
 all goods and chattels being at the commencement of 
 the bankruptcy in the possession, order or disposition 
 of the bankrupt, hc'nnj a trader, by the consent and per- 
 mission of the true owner, of which goods and chattels 
 the bankrupt was reputed owner, or of which he had 
 taken upon himself the sale or disposition as owner ; 
 provided that things in action (q), other than debts due 
 to him in the com'se of his trade or business, should not 
 be deemed goods and chattels within the meaning of 
 this clause. And now, by sect. 44 of the Bankruptcy 
 Act, 1883 (r), the property of the bankrupt divisible 
 amongst his creditors comprises all goods being at the 
 commencement of the bankruptcy in the possession, 
 order or disposition of the banlo-upt, i)i his trade or 
 business, by the consent and permission of the true 
 
 (;») Hcslopy. Baker, Q'EiX.'Rcy). 302; Ex parte Levering, re Jones, 
 
 740 ; 15 Jul-. 684. See Ex parte L. E., 9 Ch. 621 ; Ex parte Wing- 
 
 Ileslop, 1 De G., M. & G. 477 ; feld, re Florence, 10 Cli. D. 591 ; 
 
 Ex parte Wood, 4 De G., M. &G., C'raiccour v. Salter, 18 Ch. D. 30; 
 
 861 ; Ex 2>(^rte Young, 4 Dc G., Harris v. Truman, 7 Q. B. D. 
 
 M. & G. 864. 340 ; 9 Q. B. D. 264 ; Ex parte 
 
 (n) Quartermaine v. Bittleston, BrooJcs,re FowlerylZ Ch. J). 2Ql\ 
 
 13 C. B. 133 ; Fielding v. Lee, 18 Ex parte Lovering, re Murrell, 24 
 
 C. B., N. S. 499. Ch. D. 31. 
 
 (o) Stat. 24 & 25 Vict. c. 134, (7) See Ex parte Union Bank 0/ 
 
 s. 232. Manchester, in re Jackson, L. R., 
 
 {p) Stat. 32 & 33 Vict. c. 71, 12 Eq. 354. A life policy is a 
 
 8. 15, par. (5) ; Ex parte Watkins, chose in action. Ex parte Lhhetson, 
 
 in re Couston, L. R., 8 Ch. 520; in re Moore, C. A., 8 Ch. D. 519. 
 Ex parte Cox, in re lieed, 1 Ch. D. (r) Stat. 46 & 47 Vict. c. 52.
 
 OF THE ALIENATION OF CHOSES IN TOSSESSION. 87 
 
 owner, under such circumstances that lie is tlio reputed 
 owner thereof (s) ; provided that things in action other 
 than debts due or growing due to the bankrupt in the 
 course of his trade or business, shall not be deemed 
 goods within the meaning of this section. Under the 
 Bankruptcy Act, 1883, all goods, of which the bankrupt 
 is the reputed owner within the meaning of sect, 44, 
 vest in the trustee in bankruptcy in the same manner 
 and at the same time as the bankrupt's own property (;'). 
 The " reputed ownership " clause of the Bankruptcy 
 Act, 1869, had a similar effect [ii). 
 
 (s) See ante, pp. 62-64. {><) See stat. 32 & 33 Vict. c. 
 
 {() Stat. 46 &: 47 Vict. c. 52, 71, es. 15, 17; me ante, p. 85. 
 B8. 44, 54 ; see cnite, p. 85.
 
 88 OF rildST.S TN rOSSESSTOX. 
 
 CHAPTER IV. 
 
 OF SHIPS. 
 
 There is one important class of choses in possession 
 wliich the policy of the law has rendered subject to 
 peculiar rules, namely, ships and vessels. The whole 
 of the acts relating to Merchant Shipping were repealed 
 by the Merchant Shipping Repeal Act, 1854 (a), and 
 the law on this subject is now contained in the Mer- 
 chant Shipping Act, 1854 {b), as amended by the Mer- 
 chant Shipping Act Amendment Acts, 1855 (c) and 
 British ships. 1862 {d), the Merchant Shipping Acts, 1871 (e), 1872 (/), 
 1873 {(j) and 1876 {/<), and the Merchant Shipping Act 
 (1854) Amendment Act, 1880 (/). Every British ship, 
 with a few unimportant exceptions, is required to be 
 registered (./), and no ship is to be deemed a British ship 
 unless she belongs wholly to natural-born British sub- 
 jects, or to persons made denizens or duly natiu'alized. 
 But no natural-born subject who has taken the oath of 
 allegiance to any foreign state can be owner, unless he 
 has subsequently taken the oath of allegiance to her 
 Majesty, and continues during his ownership resident 
 within her Majesty's dominions, or, if not so resident, 
 member of a British factory, or partner in a house 
 actually carrying on business within her Majesty's 
 dominions. And every denizen and naturalized person 
 must continue during his ownership resident within her 
 
 («) Stat. 17 & 18 Vict. c. 120. {(/) Stat. 3G & 37 Viet. c. 85. 
 
 (b) Stat. 17 & 18 Viet. c. 101. {h) Stat. 39 & 40 Vict. c. 80. 
 
 • (c) Stat. 18 & 19 Vict. c. 91. (J) Stat. 43 & 44 Vict. c. 18. 
 
 {(l) Stat. 25 & 26 Vict. c. G3. (J) Stat. 17 & 18 Vict. c. 104, 
 
 (e) Stat. 34 & 35 Vict. c. 110. s. 19. As to colonial shipping, 
 
 (/) Stat. 35 & 36 Vict. c. 73. see stat. 31 & 32 Vict. c. 129.
 
 OF SHIPS. 89 
 
 Majesty's dominions, or, if not so resident, must be a 
 member of a British factory, or partner in such a bouse 
 of business as above mentioned ; and notbing contained 
 in tbe Naturalization Act, 1870 (/.■), is to qualify an 
 alien to be the owner of a British ship (/). But bodies 
 corporate established under and subject to tlie laws of 
 the United Kingdom or any British possession, and 
 having their principal place of business therein, may be 
 owners (tii). The registration is made by the collector, 
 comptroller or other principal officer of customs for the 
 time being at any port or other place in the United 
 Kingdom approved by the commissioners of customs 
 for the registry of ships, and by other officers in the 
 colonies and possessions abroad (»). 
 
 The property in every ship is divided into sixty- four Property in 
 shares; and, subject to the provisions of the act Avitli divided into^ 
 respect to joint owners or owners by transmission, not «xty-four 
 more than sixty- four individuals shall be entitled to be 
 registered at the same time as owners of any one ship ; 
 but this rule is not to affect the beneficial title of any 
 number of persons, or of any company, represented 
 by or claiming under any registered owner or joint 
 owner (o). And no person is entitled to be registered 
 as owner of any fractional part of a share in a sliip ; but 
 any number of persons not exceeding five may be regis- 
 tered as joint owners of a ship, or of a share or shares 
 therein. And joint owners are to be considered as con- 
 stituting one person only, as regards the foregoing rule 
 relating to the number of persons entitled to be regis- 
 tered as owners, and shall not be entitled to dispose in 
 severalty of any interest in any ship, or in any share or 
 
 (A) Stat. 33 Vict. c. 14, a>ite, (n) Sect. 30. 
 
 p. 57. (o) Stat. 43 & 44 Vict. c. 18, 
 
 (l) Sect. 14. repealing sub-section 2 of sect. 
 
 (m) Stat. 17 & 18 Vict. c. 104, 37 of stat. 17 & 18 Vict. c. 104. 
 s. 18.
 
 90 
 
 OF CHOSES IX POSSESSION. 
 
 No trusts en- 
 tered on the 
 register. 
 
 But equities 
 may be en- 
 forced. 
 
 Certificate of 
 registry. 
 
 shares therein, in respect of which they are registered. 
 A body corporate may be registered as owner by its 
 corporate name. No notice of any trust, express, im- 
 plied, or constructive, shall be entered in the register 
 book or 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 any 
 ship, or share therein, shall have power absolutely to 
 dispose of such ship or share in the manner prescribed 
 by the act, and to give effectual receipts for any money 
 paid or advanced by way of consideration {p) . 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 un- 
 qualified persons from the ownership of British ships, 
 equities may be enforced against owners and mortgagees 
 of ships in respect of their interest therein, in the same 
 manner as equities may be enforced against them in 
 respect of any other personal property {q) . Upon the 
 completion of the registry of any ship, the registrar 
 gives a certificate of registry in the form prescribed by 
 the act. And whenever any change takes place in the 
 registered ownership of any ship, then if such change 
 occurs when the ship is at her port of registry, a memo- 
 randum of such change is forthwith indorsed by the 
 registrar on the certificate of registry. But if the ship 
 is absent from her port of registry, then, upon her first 
 return to such port, the master must deliver the certi- 
 ficate of registry to the registrar, and he is to indorse 
 
 {p) Stat. 17 & 18 Vict. c. 104, 
 8. 43. 
 
 {q) Stat. 25 & 26 Vict. c. G3, 
 s. 3. See TT'anf v. JlccI:. C. T., 
 
 9 Jur., N. S. 912; 13 C. B., 
 N. S. G68 ; Sfapleton v. Haijmcn, 
 2 Hurlst. & Colt. 918.
 
 OF SHIPS. 91 
 
 thereon a like memorandum of the change. Or if she 
 pre\'iously arrives at any port where there is a British 
 registrar, such registrar shall, upon being advised by the 
 registrar of her port of registry of the change having 
 taken place, indorse a like memorandum thereof on the 
 certificate of registry, and may for that purpose require 
 the certificate to be delivered to him, so that the ship bo 
 not thereby detained (r) . Provision is also made for 
 the granting of a now certificate in the place of any 
 Avhich may be delivered up, or may be mislaid, lost or 
 destroyed (s). The certificate of registry is to be used 
 only for the navigation of the ship, and is kept in the 
 custody of the master, and is not subject to detention 
 by reason of any title, lien, charge, or interest whatso- 
 ever which any owner, mortgagee or other person may 
 have or claim to have in the ship described in such cer- 
 tificate (/). 
 
 A registered ship or any share therein, when disposed Transfer of 
 of to persons qualified to be owners of British ships, ^^'P-- 
 must be transferred by bill of sale, and such bill of sale 
 must contain such a description of the ship as is con- 
 tained in the surveyor's certificate, or such other descrip- 
 tion as may be sufficient to identify the sliip to the satis- 
 faction of the registrar, and must be according to the form 
 set out in the schedide to the act, or as near thereto as 
 circumstances permit, and nmst be executed by the trans- 
 feror in the presence of and be attested by one or more 
 witnesses {ii). And in case any bill of sale, mortgage, or 
 other instrument for the disposal or transfer of any ship 
 or any share or interest therein, is made in any form or 
 contains any particulars other than the form and par- 
 ticulars prescribed and approved for the purpose by or 
 in pursuance of the Merchant Shipping Act, 1854, no 
 
 {)•) Stat. 17 & 18 Vict. c. 104, (/) Sect. 50. 
 
 s. 45. {//) Sect. 55. See C/iaxfrauneuf 
 
 (s) Sects. i~, 48, 53. v. Capei/ron, 7 App. Cas. 127.
 
 92 OF CHOSES IN rOSSESSTOX. 
 
 registrar shall be required to record the same without 
 the express direction of the commissioners of her 
 Majesty's customs (.r). And no individual can be regis- 
 tered as transferee of a ship, or of any share therein, 
 until he has made a declaration in a prescribed form, 
 stating his qualification to be registered as owner of a 
 share in a British ship. And if a body corporate be 
 transferee, the secretary or other duly appointed public 
 officer of such body corporate must make a similar 
 declaration (//). The bill of sale, together with the 
 required declaration, must then be produced to the 
 registrar of the port at which the ship is registered, 
 who thereupon enters in the register the name of the 
 transferee as o^\Tier of the ship or share comprised in 
 the bill of sale, and also indorses 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 {z). 
 
 Mortgage of All mortgages of any ship, or share therein, are to 
 ^^^' be in a form prescribed by the act, or as near thereto 
 
 as circumstances permit ; and on the production of 
 such instrument, the registrar of the port at which the 
 ship is registered is to record the same in the register 
 book {a). Every such mortgage is to be recorded by 
 the registrar in the order of time in which the same is 
 produced to him for that purpose, and the registrar 
 shall by memorandum under his hand notify on the 
 instrument of mortgage that the same has been re- 
 corded by him, stating the day and hour of such 
 record (&). If there is more than one mortgage regis- 
 
 (.(■) Stat. 18 & 19 Vict. c. 91, («) Sect. 66; Liverpool Borough 
 
 8. 11. Bank v. Turner, 1 Jolm. & H. 
 
 (y) Stat. 17 & 18 Vict. c. 101, 159; 2 De Gex, F. & J. 502. 
 s. 56. {b) Sect. 67. 
 
 Iz) Sect. 57.
 
 OF SHIPS. 93 
 
 terecl, the mortgagees are entitled to priority one over 
 the other according to the date at which each instru- 
 ment is recorded in the register book, and not according 
 to the date of each instrument itself, notwithstanding 
 any express, implied or constructive notice (c). No 
 mortgagee is to be deemed by reason of his mortgage 
 to be the owner of a ship, or of any share therein, nor 
 is the mortgagor to be deemed to have ceased to be 
 owner, except in so far as may be necessary for making 
 such ship or share available as a security for the mort- 
 gage debt (f/). Every registered mortgagee is to have 
 power absolutely to dispose of the ship or share in 
 respect of which he is registered, and to give effectual 
 receipts for the purchase-money ; but if more persons 
 than one are registered as mortgagees of the same ship 
 or share, no subsequent mortgagee shall, except under 
 the order of some court capable of taking cognizance 
 of such matters, sell such ship or share without the 
 conciuTence of every prior mortgagee {e) Mortgages 
 of ships are not to be affected by the bankruptcy of the 
 mortgagor (/) ; and a form is provided for the transfer 
 of mortgages {g). And whenever any registered mort- 
 gage shall have been discharged, the registrar, on pro- 
 duction of the mortgage deed with a receipt for the 
 mortgage money endorsed thereon, duly signed and 
 attested, makes an entry of the discharge of such mort- 
 gage in the register book ; and upon such entry being 
 made, the estate, if any, which passed to the mortgagee, 
 vests in the same persons in whom the same would 
 
 ((■) Stat. 17 & 18 Vict. c. 104, Gex, Jones & Smith, 500 ; i;j 
 
 8. 69. W. R. 283 ; 34 L. J., Chan. 196 ; 
 
 {cl) Sect. 70. See European Co. Rusden v. Pope, 37 L. J., N. S., 
 
 V. Royal Mail Co., 4 K. & J. 676; Exch. 137 ; Law Eep., 3 Exch. 
 
 Dickinson v. Kitchen, 8 E. & B. 269. 
 
 789; Marriott v. The Anchor Re- (c) Stat. 17 & 18 Vict. c. 104, 
 
 versionary Company, Limited, 2 s. 71. 
 
 Giff. 457 ; Collins v. Lamport, (/) Sect. 72. 
 
 L. C, 11 Jur.. N. S. 1 ; 4 De \y) Sect. 73.
 
 94 
 
 OF CHOSES IN POSSESSION. 
 
 mortgag'o 
 
 (having regard to intervening acts and circumstances, 
 if any) have vested if no such mortgage had ever been 
 made (A). 
 
 Provision is made 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 purpose 
 what are called certificates of sale or mortgage are 
 granted by the registrar on certain conditions men- 
 tioned in the act, and in forms set out in the schedule 
 thereto (/). The above are the prineii^al provisions of 
 the act so far as relate to the conveyance of ships. For 
 more particular information the reader must be referred 
 to the acts themselves, which are of great length. It 
 may, however, be added, that all instruments used in 
 carrying into effect that part of the act which relates to 
 British ships, their ownership and registry, are exempt 
 from stamp duty (/r) . 
 
 Exempt from 
 stamp duty. 
 
 Jurisdiction 
 of the High 
 Court of 
 Admii-altv. 
 
 The Admiralty Coui-t Act, 1861 (/), conferred on the 
 High Court of Admiralty jurisdiction to decide all ques- 
 tions arising betv»^een the co-owners, or any of them, 
 touching the ownership, possession, employment and 
 earnings of any ship registered in any port in England 
 or Wales, or any share thereof ; and it empowered that 
 court to settle all accounts outstanding and unsettled 
 between the parties in relation thereto, and to direct 
 the ship or any share thereof to be sold, and to make 
 such order in the premises as to the court should seem 
 fit {m). The same act also gave the Court of Admiralty 
 jurisdiction over any claim in respect of any mortgage 
 duly registered according to the provisions of the Mer- 
 
 {h) Sect. 68. 
 (() Sect. 7G ei seq. 
 Dicfci»so>i, John. 1. 
 
 (/.-) Sect. 9. 
 Sec On- V. (/) Stat. 24 Vict. c. 10. 
 
 ;«) Sect. 8.
 
 OF SHIPS. 9o 
 
 chant iShipping Act, 1854 {n). But the jurisdiction of Now trans- 
 the High Court of Admiralty has now been transferred ^"^1 Courtf 
 to the High Court of Justice (o) ; and a division of the "^ Justice, 
 couii; has been established for probate, divorce and 
 admiralty, to which are to be assigned, amongst other 
 things, all causes and matters which would have been 
 within the exclusive cognizance of the High Court of 
 Admiralty if the act had not passed (p). Some of the County 
 county courts now possess Admiralty jurisdiction (q). 
 
 Sometimes a vessel is hired for a given voyage. The Chai-tcr- 
 instrument by which such hiring is effected is termed a ^^^^ ^ " 
 charter-party ()■). Whether the legal possession of the 
 ship passes to the hirer (or charterer, as he is called) 
 depends on the stipulations contained in the charter- 
 party, such as whether the charterer or the owner is to 
 provide the seamen, and keep the vessel in order (.s) . 
 Where a merchant ship is open to the conveyance of 
 goods generally, it is called a general ship. The receipt General shii^. 
 for the goods given by the master is called the hill of Bill of lading-. 
 ladiny : it states that tlie goods are to be delivered to 
 the consignee or his assigns ; and by the custom of 
 merchants, the bill of lading, when endorsed by the con- 
 signee with his name, becomes a negociable instrument, 
 the delivery of which passes the property in the goods {i) ; 
 but it was formerly held that the right to sue upon the 
 contract contained in tlic bill of lading to carry and 
 
 («) Sect. 11. See also sects. pealed by stat. 33 & 3-1 Vict. c. 
 
 10, 12, and 13. 99, and re-enacted by .stat. 33 & 
 
 (o) Stat. 36 & 37 Vict. c. 66, 34 Vict. c. 97, Schedide, tit. 
 
 s. 16. Chartei-party, and see sects. 66, 
 
 (i?) Sect. 34. 67 and 68. 
 
 {q) Stats. 31 & 32 Vict. c. 71 ; («) Dean v. Iloffc/, lOBing. 345 ; 
 
 32 & 33 Vict. c. 51. Fmton v. City of London Steam 
 
 {r) The stamp duty on a char- Packet Company, 8 Ad. & Ell. 835. 
 
 ter-party is now sixpence. Stat. {f) Cahhvdl v. Ball, 1 T. Rep. 
 
 28 & 20 Vict. c. 96, s. 7; re- 205, 216; rgh ante, p. 46.
 
 96 
 
 OF CHOSES IN POSSESSIOX. 
 
 Freiglit. 
 
 Right of 
 mortgagee to 
 freight. 
 
 deliver the goods did not pass by the indorsement (u). 
 It is, however, now enacted, that every consignee of 
 goods named in a bill of lading, and every indorsee 
 of a bill of lading, to Avhom the property in the goods 
 therein mentioned shall pass upon or by reason of such 
 consignment or indorsement, shall have transferred to 
 and vested in him all rights of suit, and be subject to 
 the same liabilities in respect of such goods, as if the 
 contract contained in the bill of lading had been made 
 with himself (x) . The money payable for the hire of a 
 ship, or for the carriage of goods in it, is the freight 
 which, whether accrued or accruing, is assignable in the 
 same manner as any other ordinary chose in action (?/). 
 But in the case of a mortgage of a ship, the mortgagee 
 whose mortgage is first registered, obtains, by taking 
 actual (z) or constructive [a) possession, a legal right to 
 the freight, with all the advantages which equity gives 
 to a legal owner, in the event of a conflict of claims (b). 
 The delivery of goods imported from foreign parts, and 
 the lien of the ship owner for their freight, are now 
 regulated by the provisions of the Merchant Shipping 
 Act Amendment Act, 1862 (r). 
 
 («) Thompson v. Domin;/, 14 
 Mee. & Wels. 403. 
 
 {x) Stat. 18 & 19 Vict. c. Ill, 
 B. 1. See Burdrick v. Seicell, 10 
 Q. B. D. 363, reversed, ^Y. N., 
 1884, p. 103. 
 
 [y] Douglas v. Russell, 4 Sim. 
 524; 1 M. & K. 488; Leslie v. 
 Guthrie, 1 New Cases, 697 ; Lind- 
 say v. Gibbs, 22 Beav. 522. 
 
 (s) Brotvn v. Tanner, Law Rep. , 
 
 3 Ch. Ap. 597. 
 
 (rt) Rusden v. Fojx', Law Rep., 
 3 Ex. 269. 
 
 [h) Liverpool Jlarine Credit Com- 
 pant/ V. Wilson, Law Rep., 7 Ch. 
 Ap. 507 ; Wilson v. Wilson, 
 V.-C. M., Law Rep., 14 Eq. 32 ; 
 ICeiih V. Burrows, 2 C. P. D. 163; 
 2 App. Cas. 636. 
 
 (c) Stat. 25 & 2G Vict. c. 63, 
 ss. 66—78.
 
 ( ^^' ) 
 
 PART II. 
 
 OF CHOSES IN ACTION. 
 
 CHAPTER I. 
 
 OF ACTIONS EX DELICTO. 
 
 In addition to moveable goods, or c/ioscs in possession, 
 we have observed (a), that there existed also in ancient 
 times cl/oscs in dction, or the liberty of proceeding in the 
 courts of law either to recover pecuniary damages for 
 the infliction of a wrong or the non-performance of a 
 contract, or else to procure the payment of money due. 
 The actions to be thus brought were, of course, not real, 
 but purely personal actions. Real actions were brought 
 for the recovery of land or real property ; but the above- 
 mentioned actions were against persons only, and the 
 object was merely to obtain from them money, being 
 the only recompense then generally available. In this 
 respect, however, the law has undergone some change : 
 for the Common Law Procedure Act, 1854, enabled 
 the plaintiff in any action, except replevin and eject- 
 ment, in any of the Superior Courts, to claim a writ Writ of 
 of mandamus connuanding the defendant to fulfil ^^^^'lainus. 
 any duty in the fulfilment of which the plaintiff was 
 personally interested, and by the non-performance of 
 which he might sustain damage {h). And it also pro- 
 vided, that in all cases of breach of contract or other 
 injury, where the party injured was entitled to maintain 
 and had brought an action, he might claim a writ of in- Writ of iu- 
 
 juuction. 
 
 {a) Ante, p. 4. ss. C8, 69 ; Xorris v. IrisJi Land 
 
 \b) Stat. 17 & 18 Vict. c. 125, Company, 8 E. ^- B. 512. 
 W.P.P. • II
 
 98 OF CHOSES IX ACTION. 
 
 junction against the repetition or continuance of such 
 breach of contract or other injury, or the committal of 
 any breach of contract or injury of a like kind, arising 
 out of the same contract or relating to the same pro- 
 Costs, perty or right (r) ; and the Common Law Procedure 
 Act, 18G0, required that in the above cases the costs of 
 the writ of mandamus or injunction should be paid by 
 the defendant, unless otherwise ordered by the Court or 
 a judge {d). But the rights thus given do not appear 
 to have materially interfered with the wider and more 
 Court of ancient jurisdiction of the Coui-t of Chancery in issuing 
 an injunction to restrain the wrong-doer from continuing 
 his wrong, or in decreeing the specific performance of a 
 contract. By a statute of the year 1858, commonly 
 called "Lord Caii^ns' Act," the Court of Chancery was 
 empowered to award pecuniary damages, either in addi- 
 tion to or in substitution for an injunction or specific 
 performance [e) . In many cases, however, money alone 
 is a sufficient recompense : and then the right to bring 
 an action at law, in other words, a legal chose in action, 
 
 [c) Stat. 17 & 18 Vict. c. 125, c. 59, s. 17; 44 & 45 Vict. c. 68, 
 ss. 79 — 82. s. 19. It is now provided by the 
 
 [d) Stat. 23 & 24 Vict. c. 126, Riilesof the Supreme Court, 1883, 
 s. 32. The above provisions of Ord. L. r. 11, Ord. LIII. r. 4, 
 the Common Law Procedui-e Acts, that no writ of injunction or man- 
 1854 and 1860, were repealed by damns shall be issued, but that an 
 stat. 46 & 47 Vict. c. 49, which injunction or mandamus shall be 
 provides, however (ss. 5, 6), that by judgment or order. 
 
 the repeal thereby effected shall (<) Stat. 21 & 22 Viet. c. 27, 
 
 not affect any jurisdiction estab- s. 2, now repealed by stat. 46 & 47 
 
 lished by or under any enactment Vict. c. 49, saving- the jui'isdiction 
 
 thereby repealed ; and that the thereby established, and reserving 
 
 enactments relating to the making thepowerofmakingRulesof Court 
 
 of Rules of Court contained in the as to the matters contained therein 
 
 Supreme Court of Judicatiu'e Act, (see preceding note) ; Lcwcrs v. 
 
 1875, and the Acts amending it. Earl of SJiafteshurij, V.-C. W., 
 
 shall be deemed to extend and L. E.., 2 Eq. 270; Krchl t. Bur- 
 
 apply to the matters contained in rell, 7 Ch. D. 551, 11 Ch. D. 146; 
 
 and regulated by the enactments Frilz v. Hohson, 14 Ch. D. 542 ; 
 
 so repealed. See stats. 38 & 39 Rulesof the Supreme Court, 1883, 
 
 Vict. c. 77, s. 17 ; 39 k 40 Vict. Ord. XXXVI. r. 58.
 
 OF ACTIONS EX DELICTO. 
 
 99 
 
 constitutes a valuable kind of personal property. The Supreme 
 Supreme Court of Judicature Acts, 1873 (/) and cature Acts, 
 1875 ((/), have now merged the Courts of Common iH73andis75. 
 Law and of Chancery, Admiralty, Probate and Divorce 
 into one Court, called the Supreme Court of Judica- 
 ture (//), which consists of two prominent divisions; 
 one of which, under the name of " Her Majesty's 
 High Court of Justice," exercises original jurisdiction ; 
 and the other of which, under the name of " Her 
 Majesty's Com't of Appeal," exercises appellate juris- 
 diction (/). By the Act of 1873, the High Court of Divisions of 
 Justice was again divided into five divisions, namely, of 'justice" 
 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 Comt 
 or Courts from which the division took its name(y). 
 But the Queen's Bench, Common Pleas and Exche- 
 quer divisions of the High Court of Justice are now 
 united and consolidated in one division, called the 
 Queen's Bench division (k). To the Chancery Di\dsion Chancery 
 were assigned all causes and matters to be commenced ^^^®^*^"- 
 under any Act of Parliament, by which exclusive juris- 
 diction in respect to such causes and matters has been 
 given to the Court of Chancery, or to any judges or 
 judge thereof respectively, except appeals from county 
 Courts ; and also all causes and matters for any of the 
 following purposes : — The administration of the estates 
 of deceased persons ; the dissolution of partnerships, or 
 the taking of partnership or other accounts ; the re- 
 demption or foreclosui'e of mortgages ; the raising of 
 
 (/) Stat. 36 & 37 Vict. c. C6. (k) By an order in council, 
 
 Iff) Stat. 38 & 39 Vict. c. 77, dated 16th Dec. 1880, made in 
 amended by 40 Vict. c. 9. pursuance of stat. 36 & 37 Vict. 
 
 (A) Stat. 36 & 37 Vict. c. 66, s. 3. c. 66, s. 32 ; see Wilson's .Tudica- 
 («) Sect. 4. (J) See ss. 31, 34. ture Acts, pp. 41—46, 4th ed. 
 .1 H 2 .
 
 100 OF CHOSES IX ACTION. 
 
 portions or other charges on land ; the sale and distri- 
 bution of the proceeds of property, subject to any lien 
 or charge ; the execution of trusts, charitable or private ; 
 the rectification or setting aside or cancellation of deeds 
 or other written instruments ; the specific performance 
 of contracts between vendors and purchasers of real 
 estates, including contracts for leases ; the partition or 
 sale of real estates ; and the wardship of infants and 
 the care of infants' estates (/). But subject to these 
 provisions and to any rules of Court, and to the power 
 to transfer causes from one division to another (m), any 
 plaintiff may assign his cause to such one of the divi- 
 sions of the High Court as he may think fit (n). 
 
 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 vsrong against another, justice evidently re- 
 quires that he should give him satisfaction ; and if one 
 man enters into a contract with 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 actions ex delicto and actions ex contractu {o). The 
 contractu*^ ^^ former arises in respect of a wrong committed, called 
 in law-French a tort ; the latter, in respect of a contract 
 made for the performance of some action, which thus 
 becomes a dut//, or for the payment of some money, 
 which thus becomes a debt. Let us consider, in the 
 present chapter, the right of action which occurs ex 
 delicto, or in respect of a tort. 
 
 The ancient law, in its dread of litigation, confined 
 
 the remedy by action for a tort or wrong committed, to 
 
 Maxim actio the joint livcs of the injurer and the injured. If either 
 
 personalis party died, the right of action was at an end, the maxim 
 
 moritur cum l J ^ o ' 
 
 pcrsond. (;) Sect. 34. s. 11. See Rules of the Supreme 
 
 (»i) Rules of the Supreme Court, Court, 1883, Ords. II., V. rr. 
 
 1883, Ord. XLIX. 5—9. 
 
 («) Stat. 38 & 39 Vict. c. 77, (o) 3 Black. Com. 117.
 
 OF ACTIONS EX DELICTO. 101 
 
 hcing actio personalis moritur cum 2^e)'sona{p). In this 
 
 rule, actions ex deUcto only were included ; of which, 
 
 however, there seem to have been more than any other 
 
 in early times. But, by an early statute {q), the same Exceptions on 
 
 action was given to the executor for any injury done ^^''^!^' P^.^^*", 
 
 to the personal estate of the deceased in his lifetime, 
 
 whereby it became less beneficial to the executor, as the 
 
 deceased himself might have brought in his lifetime. 
 
 And by a modern statute (r), 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 calendar months before his death, for which 
 
 an action might have been maintained by him ; so that 
 
 the action be l)rought 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. And by 
 
 a later statute (.s), known as "Lord Campbell's Act," it 
 
 is provided, 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 
 
 injiu'ed to maintain an action and recover damages in 
 
 respect thereof, the wrong-doer shall be liable to an 
 
 action for damages, notwithstanding the death of the 
 
 person injured, and altliough the death sliall 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 (/), in the name of his executor or 
 
 (yy) 1 Wms." Saund. 216 a, n. s. 2. 
 (1). (a) Stat. & 10 Vict. c. 93, 
 
 ((?) Stat. 4 Edw. III. c. 7, Be amended by stat. 27 & 28 Vict. 
 
 bonis asportatis in ri(d testatoris, c. 95. Sec Ti/m v. T/ie Great 
 
 extended to exec\itors of exccu- Northern Raihvay CoDipanij, 2 Best 
 
 tors by stat. 25 Edw. III. stat. 5, & Smith, 759. 
 c. 5. {t) Stat. 9 & 10 Vict. c. 93, 
 
 (>•) Stat. 3 & 4 Will. IV. <^. 42, s. 3.
 
 102 OF CIIOSES IN ACTION. 
 
 administrator {u), and must he for the benefit of tlie 
 wife, husband, parents, grandfather and grandmother, 
 stepfather and stepmother, children, grandchildren and 
 stepchildren of the deceased, in such shares as the jury 
 shall direct (.r). 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 (v/) . Pre- 
 viously 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. And even now, when the death 
 of a person is not caused, no action can be brought by 
 his executor or administrator for any injury which 
 affected him personally, if it did not touch his property. 
 Thus it has been held, that an executor or administrator 
 cannot have an action for a breach of promise of marriage 
 with the deceased, where no special damage can be stated 
 to have accrued to her personal estate (s) . 
 
 (m) Sect. 2. stepmother; and the word "child" 
 
 {x) Sects. 2, 5. This Act is a shall include son and daughter, 
 
 specimen of the common absurdity and grandson and granddaughter, 
 
 of modern Acts of Parliament, and stepson and stepdaughter, 
 
 in introducing an interpretation Now the words "parent" and 
 
 clause in one section just to vary "child" occur only in the one 
 
 the meaning of another. It enacts place just mentioned besides this 
 
 in one section that the action shall interpretation clause. Why not 
 
 be for the benefit of the wife, therefore say at once what is 
 
 husband, parent and child ; and really intended ? 
 
 in another section that the word (y) Stat. 27 & 28 Vict. c. 95, 
 
 "parent" shall include father s. 1. 
 
 and mother, and grandfather and (c) Chamberlain v. Williamson, 
 
 grandmother, and stepfather and 2 Mau. & Sel. 408, 415.
 
 OF ACTIONS EX DELICTO. 103 
 
 Not only tlie death of the injured party, but also that Death of tho 
 of the wrong-doer, formerly put an end to every action '^^'™"ff"'^"^''- 
 which arose from a toyt or wi'ong ; and this was tlie case 
 up to a very recent period ; although if the executor or 
 administrator had profited by tlie ^vrong done, tho injm-ed 
 party was able to recover from him tho money or goods 
 lie had thus gained (a). By a modern statute [b), how- 
 ever, an action may now be obtained against the execu- 
 tors or administrators of any person deceased, for any 
 wrong committed by him within six calendar months 
 before his death against another person, in respect of his 
 property, real or personal ; so as such action be brought 
 within six calendar months after such executors or 
 administrators shall have taken upon themselves the 
 administration of the estate and effects of such person. 
 And the damages to bo recovered in such action are to 
 be payable in the like order of administration as the 
 simple contract debts of such person. But in all cases* 
 which do not fall within the terms of this statute, the 
 rule of the common law remains in force. For instance, 
 no action can be maintained against the executors of a 
 deceased person for a tort committed by him" more than 
 six calendar months before his death (c) . The remedy 
 afforded by this statute does not preclude such action as 
 might have previously been brought against the execu- 
 tor or administrator [d) . 
 
 There is one peculiar action founded on tort, to Action for 
 which, from the nature of the case, the deceased him- <iii'ipi'iatio"«- 
 self could not be liable, but which was maintainable 
 formerly by the common law, and is now maintainable 
 by statute {c), against his executors or administrators. 
 
 (a) PowcU V. Bees, 7 Ad. & El. 48-i ; T/iiUips v. Uomfraif, 24 Ch. 
 
 426. D. 430. 
 
 {b) Stat. 3 & 4 Will. lY. c. 42, ((/) rowcU v. Eecs, ubi supra. 
 
 e. 2. {c) The Ecclesiastical Dilapi- 
 
 [r) Kirk V. Todd, 21 Ch. D. dations Act, 1871, stat. 34 & 3o
 
 104 
 
 OF C^HOSES IN ACTIOX. 
 
 This is tlie action for dilapidations of the houses or 
 buildings on a benefice ; and it is brought by the new 
 incumbent, whether of a rectory, vicarage or perpetual 
 curacy, endowed public chapel or parochial chapelry or 
 district (/), against the executors or administrators of 
 his predecessor. This action was formerly no excep- 
 tion to the rule actio personalis moritur cum persona, for 
 the deceased was not liable during his lifetime ; the 
 plaintiff was the succeeding incumbent ; and an action 
 could not be said to die which never had or could have 
 any existence ( g) . However in the case of resignation 
 or exchange, the preceding incumbent was himself liable 
 for dilapidations {/i). But the Ecclesiastical Dilapida- 
 tions Act, 1871 {i), now provides for the appointment 
 
 Surveyor. of a Surveyor of ecclesiastical dilapidations (J), who may 
 be directed to inspect the buildings of a benefice (A-), 
 and it will be the duty of the incumbent, his executors 
 or administrators, to execute the repaii's prescribed in 
 his report (/). In estimating the sum to be recovered in 
 
 Liability of an action for dilapidations, the rule is as follows : — The 
 incumbent is bound to maintain the parsonage, farm 
 buildings, and chancel in good and substantial repair, 
 restoring and rebuilding when necessary, according to 
 the original form, without addition or modern improve- 
 ment ; and he is not bound to supply or maintain any- 
 thing in the natiu-e of ornament, to which painting 
 (unless necessary to preserve exposed timbers from 
 decay) and whitewashing and papering belong (m). 
 And no damages can be recovered on account of neglect 
 to cultivate the glebe lands in a husbandlike manner {n). 
 
 Vict. c. 43, amended by stat. 35 {J) Sect. 8. 
 
 & 36 Vict. c. 96. {k) Sects. 12, 29 ; Caldoiv v. 
 
 (/) Stat. 34 & 35 Vict. c. 43, s. 3. Fixell, 2 C. P. D. 562. 
 
 ((/) Sollers V. Lawrence, Willes, {!) Sect. 19. 
 
 421. (w) Wise v. Mctcalf, 10 Bam. 
 
 (//) Bowncs V. Craig, 9 Mee. & & Cress. 299. 
 
 Wels. 166. (w) Bird v. Ralph, 4 Bam. & 
 
 (0 Stat. 34 & 35 Vict. c. 43. Adol. 826. 
 
 incumbent.
 
 OF ACTIONS EX DELICTO. 105 
 
 If tlie incumbent commit any act of waste, such as could 
 not be committed by any ordinary tenant for life (o), 
 he may be restrained by an injunction out of the High 
 Court of Justice (p) ; but it has recently been decided 
 that his executors will not be liable in an action for 
 dilfipidations for waste committed by him in digging 
 gravel in pits which were opened by his predecessor (q). 
 Whether they would bo liable if the incumbent himself 
 opened the pits appears doubtful (/■). When any part 
 of the premises was in the occupation of a tenant who 
 was liable to repair, the executors of the incumbent were 
 exempt from liability by the ancient canon law (.s). 
 And the Ecclesiastical Dilapidations Act, 1871 (/), 
 accordingly exempts from its provisions buildings, if 
 any, belonging to a benefice which shall be comprised 
 in any lease for years or lives for the time being sub- 
 sisting, except so far as the lessee shall not, by virtue 
 of such lease, be liable to insure, rebuild or repair such 
 buildings. The new incumbent was formerly bound to 
 expend within two years the money recovered by him 
 for dilapidations in the necessary repairs of the pre- 
 mises («). But he is now bound forthwith to pay the 
 money recovered to the governors of Queen Anne's 
 Bounty (.r), who expend it on the works according to 
 the certificate of the surveyor of dilapidations {>/) . 
 Claims for dilapidations formerly had this peculiarity, 
 that they were not to be satisfied by the executor until 
 
 (o) See Principles of the Law (s) Burn's Ecclesiastical Law, 
 
 of Eeal Property, p. 24, 13th and vol. 2, p. 148 ; LjTidewood, Ed- 
 
 14th eds. mundus, p. 2.30, Oxon. 1629 ; 
 
 {p) The Buke of Marlborough v. note of John de Otho to Consti- 
 
 St. John, 5 De Gex & Sm. 174 ; tutions of Otho, tit. 17, Impro- 
 
 stats. 36 & 37 Vict. c. 66, and bam, &c. 
 38 & 39 Vict. c. 77, ante, p. 98. {t) Stat. 34 & 35 Vict. c. 43, 
 
 {q) Ross V. Adcoclc, L. Eep., 3 s. .38. 
 C. P. 6.55. (?0 Stat. 14 Eliz. c. 11, s. 18. 
 
 (r) See Himtlcy v. Russell, 13 \x) Stat. 34 & 35 Vict. c. 43, 
 
 Q. B. 572 ; Ross v. Adcoch, ttbi s. 37. 
 supra. • (;/) Sect. 44.
 
 106 OF CHOSES IN ACTION. 
 
 after payment of all the debts of the testator, including 
 those merely by simple contract (:;). But it is now 
 provided that the costs of the repairs shall be a debt 
 due from the late incumbent, his executors or adminis- 
 trators, to the new incumbent, and shall be recoverable 
 as such at law or in equity (a) . 
 
 {z) Bryan v. Clay, 1 E. & Beav. 27S. 
 Black. 38. But as to equitable («) Stat. 31 & 35 Vict. c. 43, 
 
 assets, see Bissctt v. Burgess, 23 s. 36.
 
 ( lor ) 
 
 CHAPTER II. 
 
 OF CONTRACTS. 
 
 Personal actions, we ]iave observed (a), may be brought 
 not only on account of the infliction of a wrong, but also 
 to recover pecuniary damages for the nonperformance of 
 a contract, or to procure the payment of money due, if 
 the payment of a specific sum be the subject of the con- 
 tract. As the payment of money is the law's ultimate 
 remedy in personal actions, an action for a given debt 
 will be effectually satisfied by a judgment that the plain- 
 tiff do recover his debt; and this is the judgment ac- Action of 
 cordingly given in an action of debt, which lies for the ^ " 
 recovery of a specific sum due from the defendant to the 
 plaintiff {h) . But when no specific sum is claimed, the Actions which 
 action can only, in the law phrase, sound in damages; maRes™ ^" 
 and the amount of the damages to be recovered must, 
 formerly, have been assessed by a jmy according to the 
 injury sustained (r). But the Common Law Procedure Damage as- 
 Act, 1852, provided, that, in actions in which it should J'^^S^*^^^ 
 appear to the Court or a judge that the amount of 
 damages sought to be recovered by the plaintiff was 
 substantially a matter of calculation, the Com-t or a 
 judge might direct that the amount for which final 
 judgment was to be signed should be ascertained by 
 one of the masters of the Court (d). The masters of 
 
 («) Ante, p. 4. .s. 94, repealed by stat. 4G & 47 
 
 {/)) Stephen on Pleading, IIG; Vict. c. 49, saving the jurisdic- 
 
 see Rules of the Supreme Court, tion thereby established, and re- 
 
 1883, Appendix F. serving tlie power to make rules 
 
 (c) Stephen on Pleading, p. of Court as to the matters con- 
 
 117. tained therein; see uiUc, p. 98, 
 
 {d) Stat. 1.5 & IG Vict. c. 76, n. (rf).
 
 108 OF CirOSES IN ACTION. 
 
 the several Couvls ^vero transferred to the Supreme 
 Court of Judicature ; and duties, analogous to those 
 which they previously performed, are now performed by 
 masters of the Supreme Court of Judicature {e). It is 
 now provided by the Rules of the Supreme Com't, 
 1883 (/'), that, in every action or proceeding in the 
 Queen's Bench Division (g), in which it shall appear to 
 the Court or a judge that the amount of damages 
 sought to be recovered is substantially a matter of 
 calculation, it shall not be necessary to issue a writ of 
 inquiry, but the Court or a judge may direct that the 
 amount for which final judgment is to be entered shall 
 be ascertained by an officer of the Court, and the 
 attendance of witnesses, and the production of docu- 
 ments before such officer may be compelled by suhpwna, 
 and such officer may adjourn the inquiry from time to 
 time, and shall indorse upon the order for referring the 
 amount of damages to him the amount found by him, 
 and shall deliver such order, with such indorsement, to 
 the person entitled to the damages ; and such and the 
 like proceedings may thereupon be had as to taxation 
 of costs, entering judgment, and otherwise, as upon the 
 finding of a jury upon a writ of inquiry. The Common 
 Law Procedure Act, 1852, further enacted, that in all 
 actions where the plaintiff recovered a sum of money, 
 the amount to which he was entitled might be awarded 
 to him by the judgment generally, without any dis- 
 tinction being therein made as to whether such sum 
 was recovered by way of a debt or damages [h). 
 
 Liquidated It is competent to the parties to a contract to agree 
 
 ° ' between themselves, that, in the event of a breach by 
 
 (e) Stats. 36 & 37 Vict. c. 66, Vict. c. 49, saving the jurisdic- 
 
 s. 77 ; 42 & 43 Vict. c. 78. tion thereby established, and re- 
 
 (/) Ord. XXXVI. r. 57. serving the iDower to make rules 
 
 [g) See ante, p. 99. of Court as to the matters con- 
 
 (/() Stat. 15 & 16 Vict. c. 76, s. tained therein; see ante, p. 98, 
 
 95, repealed by stat. 46 & 47 n. {d).
 
 OF CONTRACTS, 109 
 
 either party, a given sum sliall be recovered from him 
 by the other as stipulated or liquidated damages ; and 
 in this case the whole of the sum thus agreed on may, 
 on a breach of the contract, be recovered from the de- 
 faulter (/) . The sum so agreed on is not properly called 
 a penalty ; for, as we shall see hereafter when speaking 
 of bonds, the law regards a penalty as a security only 
 for the damage actually sustained. But the use of the 
 word penalty will not prevent the whole sum from being 
 recovered, if this be clearly the intention (A) . For 
 the question, whether a sum of money, agreed to be 
 recoverable in the case of a breach of contract, is to be 
 considered as a penalty or as liquidated damages, is a 
 question of the intention of the parties, to be ascertained 
 according to legal rules of construction from the terms 
 of the whole contract (/). For the same reason it is 
 held that the use of the words liquidated damages does 
 not conclusively manifest the intention of the parties {m) ; 
 and, under some circumstances, a sum of money stipu- 
 lated to be recoverable " as liquidated damages " for 
 breach of contract, will be treated as a penalty, properly 
 so called. In the present state of the authorities it is 
 hardly possible to state exhaustively what these circum- 
 stances are («). It appears, however, to be established 
 that if a specified sum be agreed to be recoverable as 
 liquidated damages for breach of a contract to do several 
 acts, of which one is to pay a smaller sum of money, 
 then the sum specified will be treated as a penalty ; and, 
 in the case of a breach of any of the provisions of the 
 
 ((') Itfilhj V. JoHCs, 1 Bing. 302; {k) Sabder v. Ferguson, 7 C. B. 
 
 S; C. 8 Moore, 244 ; Sugd. Vend. 716 ; Sparroic v. Faris, 7 H. & N. 
 
 & Pur. 221, nth ed. ; Leujhton 594. 
 
 V. JFales, 2 Mee. & Wels. 545; (l) See the judgments in Zm v. 
 
 Price V. Greoi, 16 M. & W. 346, Whitaker, L. R., 8 C. P. 70 ; 
 
 354 ; Galsworthy v. Strutt, 1 Wallis v. Smith, 21 Ch. D. 243. 
 Exch. Rep. 059 ; Atkijns v. Kin- (;«) Kemhle v. Farrcn, G Bing. 
 
 nicr, 4 Exch. Rep. 776 ; TFallisv. 141. 
 
 Smith, 21 Ch. D. 243. {>/) See IFuUlsv. S.nlth, 21 Ch. 
 
 D. 243.
 
 110 or CHOSES IN ACTION. 
 
 contract, the aggrieved party will only be allowed to 
 recover damages proportioned to the actual injury which 
 the breach has occasioned (o). The following explana- 
 tion of this rule is given. According to English law, as 
 a general rule, the damage for the breach of a contract 
 to pay a sum of money on a certain day is the sum 
 agreed to be so paid, with interest in the case of a debt 
 bearing interest, but no more (;;) . Thus the damage 
 for the breach of such a contract is said to be ascertained 
 damage. The Courts have held, therefore, that in the 
 case of a contract to do several acts, one of which is the 
 payment of money, with a stipulation that a specified 
 sum shall be recoverable for breach of contract, it shall 
 be considered unreasonable to suppose that the parties 
 could have intended that the whole sum should be pay- 
 able in the case of a breach, of the contract, for which 
 the damage is ascertained at a smaller sum. And it has 
 been fiu"ther held, upon the construction of such con- 
 tracts, that in the case of a breach of any of the pro- 
 visions of the contract, other than the provision for the 
 payment of money, the sum specified must also be 
 treated as a security only for the damage actually sus- 
 tained (q) . In the case of a contract to do several acts, 
 which do not include the payment of money, it appears 
 that, pn'ijia facie, a stipulation that a specified sum shall 
 be recoverable as liquidated damages for breach of con- 
 tract will be construed literally ; and the whole sum will 
 be recoverable in the case of a breach (;•). But if any 
 
 (o) yhllei/ V. Wchhn, 2 B. & P. Cook v. Fowhr, L. R., 7 H. L. 
 
 3iG ; Ecmble v. Farren, 6 Eing. 27 ; Re Hohcrts, 14 Ch. D. 49. 
 141 ; Davies v. Fciiton, 216, 223 ; (q) See the judgments of the 
 
 Horner v. Flintoff, 9 M. & W. Court of Appeal in Wallis v. 
 
 678 ; Beindcl v. Schell, 4 C. B., Smith, 21 Ch. D. 243, 254—277, 
 
 N. S. 97 ; Bdts V. Burch, 4 H. & andseeandconsiderthe other cases 
 
 N. 506 ; Magce v. Lavell, L. R., cited in note (o), above. 
 9 C. P. 107; Be Newman, ex parte (>•) Afkyns v. Kinnier, 4 Ex. 
 
 Capper, 4 Ch. D. 724; Wallis v. 776; Mercer v. Irving, E., B. & 
 
 Smith, 21 Ch. D. 243, 254—277. E. 563 ; Wallis v. Smith, 21 Ch. 
 
 [p) Jessel, M. R., Wallis v. D. 243. 
 Smith, 21 Oh. D. 257, 259. See
 
 OF CONTRACTS. 1 1 1 
 
 of the provisions of the contract be of such a nature 
 that the damage occasioned by a breach thereof must 
 necessarily be very small, it is thought that the Coiu-t 
 would bo inclined to treat the sum specified as a penalty 
 only (s). If one of the terms of a contract be that a Deposit. 
 sum of money shall be deposited by a party thereto, 
 and a stipulation be made that the deposit shall be 
 forfeited in the event of a breach of contract, or that the 
 deposit shall be applied in satisfaction of a specified smn 
 to be recoverable in that event, these circumstances are 
 regarded by the Court as evidencing an intention that 
 the amount of the deposit, or other amount specified, 
 shall be recoverable as liquidated damages. In such 
 cases the whole deposit or sum Avill generally be recover- 
 able in the case of a breach of the contract, notwith- 
 standing that one of the provisions of the contract be 
 for the payment of money, or be of such a nature that 
 the damage for a breach thereof must necessarily be 
 very small (/) . 
 
 So much then for the legal remedies for a breach of 
 contract. Let us now inquire more particularly of A\'hat 
 a contract itself consists. A contract then, as defined DefiDition of 
 by Blackstono (?0, is "an agreement upon sufiicient ^ '^o^*'"'^'^*- 
 consideration to do or not to do a particular thing." 
 This agreement may bo cither express or implied ; for Implied pro- 
 the law always implies a promise to do that which a "'^'^'^' 
 person is legally liable to perform, and the action of 
 assumpsit on promises is constantly maintained for Assumpsit, 
 damages for the breach of such an implied contract (.r). 
 Thus a person who takes the goods of a tradesman is 
 liable in assiim2mt for their market value : for, as he 
 took the goods, the law will imply for him a promise 
 
 (s) See Wallis v. Smith, 21 Ch. 8 C. P. 70 ; Wallis v. Smith, 21 
 
 D. 243, 257, 258, 270, 271. Cli. D. 243, 250—252, 258. 
 
 (0 Ilinion v. Sparkes, L. R., 3 («) 2 Bla. Com. 442. 
 
 C. P. 1G5; Lea v. Whitaker, L. R., [x) Stephen on Pleading, 18.
 
 112 
 
 OF CiroSES IN ACTIOX. 
 
 Writ of 
 summons. 
 
 to pay for them. So a person who employs another to 
 work for him impUedly contracts to give him reasonable 
 remuneration ; and a man who borrows money impliedly 
 promises to repay it. And in all these cases the plain- 
 tiff formerly stated that the defendant promised the 
 plaintiff to pay him the money on request, and that the 
 defendant had disregarded his promise, and had not 
 paid the same monies or any part thereof. But the 
 Common Law Procedure Act, 1852, required that all 
 statements of this kind should be omitted (y) ; and now 
 every action in the High Court is commenced by writ 
 of summons, on which is indorsed a statement of the 
 nature of the claim made, or of the relief or remedy 
 required (~), according to forms given in Appendix A., 
 Part III., to the Pules of the Supreme Court, 1883. 
 
 Parol or 
 simple con- 
 tract. 
 
 Consideration 
 necessary. 
 
 Express contracts are either by parol, or word of 
 mouth, which are called simple contracts, or by deed 
 under seal, which are called speciat coji tracts {a) ; al- 
 though simple contracts may, and often must at the 
 present day, be evidenced by writing. ■ Let us consider 
 first mere parol or simple contracts. A parol contract 
 then is an agreement by word of mouth, upon sufficient 
 consideration, to do or not to do a particular thing. 
 According to the law of England a consideration is an 
 essential ingredient in every contract : a promise with- 
 out a consideration is regarded as nudum pactum, and 
 no recompense can be recovered for its breach {h), 
 neither will its performance be enforced in a court of 
 equity (c). Thus if a man promise to give me 100/. 
 without any consideration, he is not bound to perform 
 his promise,"and I am without remedy if he should 
 
 [y) Stat. 15 & 16 Vict. c. 76, 
 s. 49. 
 
 {z) Eulesof the Supreme Court, 
 1883, Ord. II. r. 1. 
 
 (rt) Rann v. Euahc.^, 7 T. R. 
 
 351, u. 
 
 {b) Doctor & Student, dial. 2, 
 c. 24; 2 Bla. Com. 445. 
 
 (c) 1 Fonb. Eq, 335 et seq. ; 
 J)\ppU y. Corhs, 11 Hare, 183.
 
 OF CONTRACTS. 113 
 
 break his word. So even if I should have done him Consideratiou 
 any service, his subsequent promise to pay me money, ^^^°" ^ • 
 or otherwise benefit me, for a consideration already 
 executed on my part, will not be binding unless I 
 should have done him the service at his request, in 
 Avhich case the promise will relate back to the re- 
 quest {(I), or unless a request can be implied from a 
 subsequent allowance of the service, or from other cir- 
 cumstances {e) ; and if the service rendered be of such 
 a nature that the law will imply a promise in respect of 
 it, any subsequent express promise different from that 
 which the law will imply will be void as nudum pac- 
 tum (./'). And if the service, or any part of it, has been Illegal con- 
 
 • n 1 P 1 . , j_ J_^ ^ j_ sidei'ation 
 
 illegal from bemg contrary to the common law or to executed, 
 any statute, such illegal consideration will not support 
 a promise. Thus a promise made in consideration that 
 the other party had published a libel at the request of 
 the person making the promise, and had also at the like 
 request incurred certain costs, was held void on account 
 of the illegality of part of the consideration, namely, 
 publishing the libel, which vitiated the whole (g) . And 
 in like manner the circumstance of a woman's having 
 cohabited with a man is not of itself a valid considera- 
 tion to support a promise made by him to pay her a 
 sum of money (//). 
 
 Considerations are divided in law into two classes, Considera- 
 
 {d) mint V. £ate, Dyer, 272 a ; 26-i b, ii. {<■). 
 
 LamjJlcigh v. Brathivait, Hob. (/) Hopkins v. Lor/an, 6 Mce> & 
 
 105; 1 Smith's Leading Cases, Wels. 241, 247. 
 
 67 ; Fawle v. Giinn, 4 N. C. 445, {(/) Shackcll v. Rosier, 2 Bing. 
 
 448 ; Eastwoods. Kcnyon, 11 Ad. N. C. G34, 644. 
 
 & Ell. 438, 451 ; S. C. 3 Per. & (//) Binnlngion v. Wallis, 4 B. 
 
 Dav. 282 ; 1 "Wms. Saiind. 264, & Aid. 650, 652. See, however, 
 
 n. (1). Gibson v. Dickie, 3 Mau. & Sel. 
 
 (e) The maxim is, Omnia rati- 463 ; Keenan v. Kandley, 2 De 
 
 habitio retrotrahitur et mandato Gex, Jones & Smith, 283. 
 aquiparatur : 1 Wms. Saund. 
 
 W.P.P. I
 
 114 
 
 OF CHOSES IN ACTION. 
 
 tions f^ood or 
 valuable. 
 
 Good. 
 
 Valuable. 
 
 A good consi- 
 deration in- 
 sufficient to 
 support a 
 promise. 
 
 good (sometimes called meritorious) and valuahlc. A 
 good consideration is that of hlood, or the natural love 
 and affection which a person has to his children, or any 
 of his relatives (/). A valuable consideration may he 
 either pecuniary, namely, the payment of money ; or 
 the gift or conversance of anything valuable ; or it may 
 be the consideration of the marriage of the party him- 
 self or of any relative [k) ; or the compromise of a bona 
 fide claim (J) ; or any act of one party from which the 
 other, or any stranger at his request, express or implied, 
 derives any advantage ; or any labour, detriment, in- 
 convenience or risk sustained by the one party, if such 
 labour be performed, or such detriment, inconvenience, 
 or risk be suffered by the one party at the request, 
 express or implied, of the other, although such other 
 may himself derive no actual benefit {m). A good con- 
 sideration is not of itself sufficient to support a promise, 
 any more than the moral obligation which arises from 
 a man's passing his word ; neither will the two together 
 make a binding contract ; thus a promise by a father to 
 make a gift to his child will not be enforced against 
 him (;?). The consideration of natural love and affection 
 is indeed good for so little in law, that it is not easy to 
 see why it should be called a good consideration ; for in 
 law it is considered as not good against creditors within 
 the statute 13 Elizabeth (o), in which the very phrase 
 good consideration is used ; it is not good to support; a 
 contract ; and a gift for such consideration is regarded 
 
 (i) 2 Black. Com. 297, 444. 
 
 {h) Campion v. Co/ ton, 17 Ves. 
 263 ; Coverdak v. Easticood, V. -C. 
 B.,LawEep., 15 Eq. 121. 
 
 {!) Lucifs case, 4 De Gex, M. 
 & G. 356 ; Cook v. Wright, 1 Best 
 & Smith, 559. 
 
 [m) Selwyn's Nisi Prius, tit. 
 Assumpsit, 46 ; 1 Wms. Saimd. 
 211 d, n. (2) ; 2 Wms. Saiuid. 
 
 137 h,n. {e). 
 
 {») Jefferg v. Jeffery, 1 Craig 
 & Ph. 138 ; Billon v. Coppin, 4 
 My. & Cr. 647; Bollou-ag v. 
 Headington, 8 Sim. 324 ; iLeelc v. 
 Kettlewell, 1 Hare, 464 ; 1 Phil. 
 342. See, however, Ellis v. Ximmo, 
 Lloyd & Goold, 333. 
 
 (o) Tu-gjie^s case, 3 Rep. 80 b., 
 /iiife, p. 61.
 
 OF CONTRACTS. 115 
 
 as simply voluntary {p). The only reason why such a 
 consideration should be called good appears to be, that 
 in early times, previously to the passing of the Statute 
 of Uses (q), the Court of Chancery enforced a covenant 
 to stand seised of lands to the use of any person of the 
 blood of the covenantor, on account of the goodness of 
 the consideration ; whence it has happened that, since 
 that statute, the legal estate (being by that statute an- 
 nexed to the use {>')) will pass to a relative under a 
 covenant to stand seised to his use (.s') . But the rules 
 that anciently governed the Court of Chancery do not 
 now regulate its proceedings (t) ; although modern 
 equity will still interfere in favour of a wife or child in 
 some cases in wliieh it will not interpose on behalf of 
 strangers (u). 
 
 A valuable consideration is, therefore, in all cases Valuable 
 
 J „ -,. ^ j_ X Ti. 1 -111 consideration 
 
 necessary to form a valid contract, it has mdeed been necessary to a 
 thought that an express promise, founded on a moral contract, 
 obligation, is sufficient for this purpose {x). This, how- ^JJc^ founded 
 ever, appears to be a mistake. An exj)ress promise can ou moral ob- 
 give no original right of action, if the obligation on insufficient, 
 which it is founded could never ha^'e been itself en- 
 forced {//). But in some cases a valuable consideration, 
 
 (p) 2 Black. Com. 297. Daw^omw Kcartuii, 3 Sma.&Gifi. 
 
 {q) 27 Hen. VIII. c. 10. 190, qit. ? 
 
 (r) Principles of the Law of (//) Note to Wennall v. Aihwy, 
 
 Real Property, p. 159, 13th ed ; 3 Bos. & Pull. 2.52 ; Littlefield v. 
 
 163, 14th ed. Shce, 2 Bam. & Adol. 811 ; Meyer 
 
 (*•) Ibid. p. 204, 13th ed. ; 21;'), v. Ilauorth, 8 Adol. & Ellis, 467 ; 
 14th ed. S. C. 3 Nev. & Per. 4G2 ; Monk- 
 it) Ibid. p. 1G4, 13th ed. ; 1G8, man v. Shcpherdson, 11 Adol. & 
 14th ed. Ell. 411, 415; S. C. 3 Per. & 
 
 {u) Ibid. p. 301, 13th ed. ; 313, Dav. 182; Jomiiiys v. Brown, per 
 
 14th ed. Parke, B., 9 Mec. & Wels. 501 ; 
 
 (.(•) Lccy. ilwjgeridijc, 5 Taunt. Eastwood v. Kcnyon, 11 Adol. & 
 
 36. This case may now be con- Ell. 447 ; S. C. 3 Per. & D. 276 ; 
 
 sidered as virtually overrided by 2 Wras. Saund. 137 f, n. (<) ; 
 
 subsequent authorities mentioned Beaumont v. Beeve, 8 Q. B. 483. 
 in the next note. Sec however 
 
 i2
 
 116 
 
 OF CHOSES IN ACTION. 
 
 wliicli might have formed a contract by means of an 
 implied promise, had its operation not been suspended 
 by some positive rule of law, may be revived and made 
 Debt barred available by a subsequent express promise. Thus a 
 ruptcy. debt barred by the debtor's having become bankrupt 
 
 and obtained his certificate, might formerly have been 
 enforced against him, if, after his bankruptcy, he had 
 expressly promised to pay it (s) ; but such a promise 
 was required, by the modern bankrupt Acts (a) , to be 
 made in writing signed by the bankrupt or by some 
 person thereto lawfully authorized by him in writing ; 
 and the Bankrupt Law Consolidation Act, 1849, ren- 
 dered all such promises void {h) : and a similar pro- 
 vision was contained in the Bankruptcy Act, 1861 (c). 
 And it is now provided by the Bankruptcy Act, 1883 [d), 
 that, after the making of a receiving order upon a bank- 
 ruptcy petition (c), no creditor, to whom the -debtor is 
 indebted in respect of any debt provable in bankruptcy, 
 shall have any remedy against the property or person 
 of the debtor in respect of the debt, except as directed 
 by that Act. The Bankruptcy Act, 1869, contained a 
 Debt barred similar provision (/'). So a simple contract debt, which 
 of Limita- would otherwise have been barred by the Statute of 
 tions. Limitations (g), from having been incurred upwards 
 
 of six years, may be revived by a subsequent promise 
 to pay, or even by an unconditional acknowledgment of 
 the debt (h) ; but by modern statutes such promise or 
 
 (;::;) Triieman v. Fcnton, Cowp. (d) Stat. 46 & 47 Vict. c. 52, 
 
 544 ; Kirkpatrich v. Tatter sail, 13 8. 9. 
 Mee. & Wels. 766. (e) See sect. 5. 
 
 (a) 6 Geo. IV. c. 16, s. 131 ; (/) Stat. 32 & 33 Vict. c. 71, 
 
 5 & 6 Vict. c. 122, s. 43. s. 12. 
 
 {b) Stat. 12 & 13 Vict. c. 106, [g) Stat. 21 Jac. I. c. 16, s. 3. 
 
 s. 204 ; Kidson v. Turner, 3 H. & (A) Bac. Abr. tit. Limitations 
 
 N. 581. of Actions (E) ; France v. Symp- 
 
 {c) Stat. 24 & 25 Vict. c. 134, son, Kay, 678 ; Sidwell v. Mason, 
 
 s. 164, now repealed by stat. 32 2 H. & N. 306, 310 ; Eobnes v. 
 
 6 33 Vict. c. 83. MaclcrcU, 3 C. B., N. S. 789 ;
 
 OF COMTRACTS. 117 
 
 acknowledgment must be made or contained by or in 
 some -wTiting, to be signed by the party cliargeablo 
 thereby, or by his agent (?'), And in like manner a Debt incurred 
 debt incurred or contract made by a person dui-ing Infan^. 
 infancy and voidable on that account, might have been 
 confirmed by an express promise or ratification made 
 when of full age (k) ; although such a promise or ratifi- 
 cation was, by one of the statutes just mentioned (/), 
 required to be made by some writing signed by the 
 party to be charged therewith. But the law as to the 
 contracts of infants has been amended by the Infants' Infants' 
 Relief Act, 1874 (;;?), which provides that all contracts, 1374. ' 
 whether by specialty or by simple contract, henceforth 
 entered into by infants for the repayment of money lent 
 or to be lent, or for goods supplied or to be supplied 
 (other than contracts for necessaries), and all accounts 
 stated with infants, shall be absolutely void. But this 
 enactment is not to invalidate any contract into which 
 an infant may, by any existing or future statute, or by 
 the rules of common law or equity, enter, except such 
 as now by law are voidable. The Act also provides {n) 
 that no action shall be brought whereby to charge any 
 person upon any promise made after full age to pay any 
 debt contracted during infancy, or upon any ratification 
 made after full age, of any promise or contract made 
 dm-ing infancy, whether there shall or shall not be any 
 new consideration for such promise or ratification after 
 full age. 
 
 Cornforth y.Smithard, 5 H. & M. v. WuU, 1 Ex. Rep. 122. 
 
 13 ; Francis v. Eawkcsley, 1 E. & (0 Stat. 9 Geo. IV. c. 14, s. 5. 
 
 E. 1052; Chascmore v. Turno; {m) Stat. 37 & 38 Vict. c. 62, 
 
 L. R., lOQ. B. 500. 8.1. 
 
 (i) Stat. 9 Geo. IV. c. 14, s. 1, {>/) Sect. 2 ; Ex parte Kibbk, in 
 
 called Lord Tenterden's Act, 19 re Onslow, L. R., 10 Ch. 373; 
 
 & 20 Vict. 0. 97, s. 13. Coxhcad v. Mullis, 3 C. P. D. 
 
 {k) Bac. Abr. tit. Infancy and 439 ; Xorthcote v. Doughty, 4 C. 
 
 Age (I) 8; Williams v. Moor, 11 P. D. 385; Litcham v. Worrall, 
 
 Mec. & Wels. 256, 263 ; Harris 5 C. P. D. 410.
 
 lis 
 
 01' (HOSES IN ACTIUX. 
 
 Contracts 
 •wliich are re- 
 quired to be 
 in writing. 
 
 Statute of 
 Frauds, s. 4. 
 
 By the ancient common law, every legal instrument 
 in writing was a deed sealed and delivered (o) ; and, in 
 accordance with this circumstance, contracts are, as we 
 have seen (j-j), now divided in law into two kinds only, 
 namely, parol (that is verbal) or simple contracts, and 
 special contracts made by deed. But as the art of 
 ^VTiting became general, many parol contracts were, for 
 greater certainty put into writing, though not made by 
 deed. And by some statutes of modern times, writing 
 is required to most simple contracts respecting matters 
 of importance. These statutes we shall now proceed to 
 notice, premising that, in all cases where writing is by 
 any statute made necessary to a contract, the contract is 
 still a parol one, though evidenced by the writing (q) ; 
 but when a contract is made by deed, the deed itself is 
 the contract {>•). The first and most important statute 
 then, by which writing is required to many agreements, 
 is the Statute of Frauds («), which enacts in its fourth 
 section that no action shall be brought whereby to 
 charge any executor or administrator upon any special 
 promise to answer damages out of his own estate, or 
 whereby to charge the defendant upon any special 
 promise to answer for the debt, default or miscarriage 
 of another person ; or to charge any person upon any 
 agreement made upon consideration of marriage ; or 
 upon any contract or sale of lands, tenements or here- 
 ditaments, or any interest in or concerning them ; or 
 upon any agreement that is not to be performed within 
 the space of one year from the making thereof ; unless 
 the agreement upon which such action shall be brought, 
 or some memorandum or note thereof, shall be in A^-riting, 
 and signed by the party to be charged therewith, or 
 
 (o) See Principles of the Law 
 of Real Property, p. 149, 13th ed. ; 
 154, 14th ed. 
 
 (p) Ante, p. 112. 
 
 {q) Sugd. Vend. ,S: Pur. 11-5, 
 
 13th ed. 
 
 (/■) Dyer, 305 a ; Byron v. 
 Byron, Cro. Eliz. 472; 1 ■\y;ns. 
 Saund. 274 a, n. (3). 
 
 (.«) 29 Car. II. c. 3.
 
 IVarllcrs. 
 
 OF CONTRACTS. 119 
 
 some other person thereunto by him lawfully authorized. 
 This enactment, it will bo observed, does not give to 
 writing any validity which it did not possess before. 
 A written promise made since this statute, without any 
 consideration, is quite as much nuihiin pactum as it 
 would have been before (t). The statute merely adds 
 a further requisite to the validity of certain contracts, 
 namely, that they shall, besides being good in other 
 respects, be put into writing, otherwise no action shall 
 be maintained upon them {>() . 
 
 A great number of cases have been decided upon the 
 above section of this celebrated statute. One of the 
 most important is that of Wainy. Warlfcrs {^), in yvhioh. ^'^",*/- 
 it was held that the statute, in requiring the agreement 
 to be in writing, required that the consideration, which 
 is part of the agreement, should be in writing, as well 
 as the promise itself. And therefore a promise in 
 writing to pay the debt of a third person, which did not 
 state any consideration, was held to give no cause of 
 action ; and parol evidence of a consideration was not 
 allowed to be given. This case was followed by many 
 other decisions to the same effect {//). But a recent Consideration 
 
 111 • T n , • ^ • 1 need not now 
 
 Statute now provides that no special promise to answer appear. 
 
 (t) See Williams on Executors, be cfiPectually cancelled and ren- 
 
 pt. 4, bk. 2, cli. 2, sect. 2 ; 1 deved incapable of being used for 
 
 Wms. Saund. 211, n. (2). any other instrument. Stat. 33 
 
 (u) Agreements, where the & 3-t Vict. c. 97, Schedule, tit. 
 
 matter thereof is of the value of Agreement, and see sects. 24 and 
 
 51., or iipwards, are, with some 3G. 
 
 exceptions, liable to a stamp duty (.*) 5 East, 10; 2 Smith's Lead - 
 
 of 6cL, which may bo denoted by ing Cases, 147. 
 
 an adhesive stamp, which is to be {>/) Saunders v. JFul^cfcld, 4 
 
 cancelled by the person by whom Barn. & Aid. 595 ; Morlcy v. 
 
 the agreement is first executed, Boothhij, 3 Bing. 107; Clancy 
 
 by writing on or across the stamp v. TifjgoU, 2 Adol. & Ell. 473 ; 
 
 his name or initials, or the name 1 Smith's Leading Cases, 136 ; 
 
 or initials of his firm, together 1 Wms. Saund. 211, n. {d)\ Price 
 
 with the true date of his so v. Richardson, 15 Mee. & Wels. 
 
 Avriting, so that the stamp may 539.
 
 120 
 
 OF CHOSES IN ACTION. 
 
 Answering 
 for debt, de- 
 fault or mis- 
 carriage. 
 
 Space of one 
 year from the 
 making. 
 
 for the debt, default or miscarriage of another person, 
 heing in wiiting and duly signed, shall be invalid 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 {z). The 
 phrase in the statute to answer for the debt, default or 
 miscarriage of another person, means to answer for a 
 debt, default or miscarriage /or which that other remains 
 liable {a). Thus where one party to an agreement ver- 
 bally 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 {b). For this was not a promise to answer for 
 the debt of another person, to which that other re- 
 mained 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 guarantee, which is the 
 meaning in the statute of the words "answer for." 
 The words, " any agreement that is not to be performed 
 within the space of one year from the making thereof," 
 have been held to mean an agreement which appears 
 from its terms incapable of performance within the 
 year (c). Thus where one man promised another, for 
 one guinea, to give him a certain number on the day of 
 his marriage, it was held that a writing was unnecessary, 
 for the marriage might have happened within the 
 year {d). So a contract by A. that his executor shall 
 
 {z) Stat. 19 & 20 Vict. c. 97, 
 s. 3. See Holmes v. Mitchell, 7 
 C. B., N. S. 361 ; Williams v. 
 lake, 2 Ell. & Ell. 349. 
 
 («) 1 Wms. Saund. 211b, n. 
 (2) ; 1 Smith's Leading Cases, 
 134 ; Cripps v. Ilartnoll, 4 B. & 
 S. 414; Reader v. Kingham, 13 
 C. B., N. S. 344 ; Lfdrman v. 
 
 Mountstepjhen, L; E., 7 H. of L. 
 17. 
 
 (J) Goodman v. Chase, 1 Barn. 
 & Aid. 297. See also La)te r. 
 Burghart, 1 Q. B. 933. 
 
 (c) See Britain v. Bossiter, 11 
 Q. B. D. 123. 
 
 [d] Peter V. Compton, Skin. 
 3o3 ; 1 Smith's Leading Cases,
 
 OF CONTRACTS. 121 
 
 pay 10,000/. need not be in writing (e) ; for the death 
 of A. and payment of the money may all take place 
 within a twelvemonth. It has also been held that, in 
 order to bring an agreement within this clause of the 
 statute, so as to render writing necessary, both parts of 
 the agreement must bo such as are not to be performed 
 within a year from the making thereof. Thus where a 
 landlord agreed to lay out 50/. in improvements, in 
 consideration of the tenant undertaking to pay him 5/. 
 a year during the remainder of his term (of which 
 several years were unexpired), it was held that writing 
 was unnecessary (/) ; 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. 
 These decisions have considerably narrowed the opera- 
 tions 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 re- 
 quiring written evidence {g). The last clause of the 
 enactment has however received a very liberal con- 
 struction. The words are " signed by the party to be Signed by the 
 charged therewith, or some other person thereunto by charged. ° 
 him lawfully authorized." And it has been held tliat 
 any insertion by the party of his name in any part of 
 the agreement is a sufficient signing within the sta- 
 tute (A), provided the name be inserted in such a manner 
 as to have the effect of authenticating the instru- 
 ment {{) ; and it is not necessary that both parties 
 should sign the agreement. The whole of the agree- 
 ment must be contained in the writing, either expressly 
 or by reference to some other document, but the writing 
 
 142; Souch v. StrawhvUhje, 2 C. Ex. Rop. 631. 
 
 B. 808. {g) See 1 Smith's Leading 
 
 {e) Wells V. Horton, 4 Bing. Cases, 144 et scq. 
 40 ; Ridley v. Ridley, 34 Beav. {h) Ogilvie v. Foljambe, 3 Mcriv. 
 
 478. C2. 
 
 (/) HonellanwRcid, 3 Barn. & (/) Slolrs v. Moor, 1 Cox, 219; 
 
 Adol. 899 ; Cherry v. Ueming, 4 Sdby v. SMy, 3 Meriy. 4, 6.
 
 122 OV f HOiiES IX ACTIOX. 
 
 is required by the statute to be signed only by tbo party 
 Memorandum to bo charged (A'). And as a "memorandum or note" 
 or no e. ^£ ^-^^ agreement is allowed, a writing sufficient to satisfy 
 
 the statute may often be made out from letters written 
 by the party (/), or from a written offer, accepted, with- 
 out any variation {m), before the party offering has 
 exercised his right of retracting («) ; and when corre- 
 Acccptance of spondence is carried on by means of the post, an offer 
 er y e ei. .^ held to be accepted from the moment that a letter 
 accepting the offer is put into the post, although it may 
 never reach its destination (o) . 
 
 Sale of goods The seventeenth section of the Statute of Frauds, 
 upwards"^ which relates to contracts for the sale of goods, wares 
 and merchandise for the price of 10/. or upwards, has 
 been already noticed (p), together with the clause in the 
 statute of Greo. lY., next noticed, called Lord Tenter- 
 den's Act, by which this enactment has been extended 
 and explained (q). 
 
 Lord Tenter- The next statute which requires our notice is in- 
 
 en 8 Act. tituled " An Act for rendering a written Memorandum 
 
 necessary to the Validity of certain Promises and En- 
 
 {k) LaythoarpY.Brycod, 2Bing. (w) EoutledgeY. Grant, 4 Bing. 
 
 N. C. 735, 742. See Sugd. Vend. 653; S. C. 1 Moo. & P. 717; 
 
 & Pur. c. 4, ss. 3, 4, p. 102 et G'dkcs v. Leonino, 4 C. B., N. S. 
 
 seq., 13tli edit. 485; IIcb¥s ease, M. R., Law 
 
 [1) Owen V. Thomas, 3 My. & Eep.,4Eq.9; -S^er^wiow v.jl/bZraw, 
 
 Keen, 353 ; Cave r. Sasfuujs, 7 5 Q. B. D. 346. 
 
 Q. B. D. 125. See Hussoj v. [o] Dunlop v. Hir/yius, 1 H. of 
 
 Horne-Fayne, 4 App. Cas. 311 ; L. Cas. 381 ; Duncan v. Topham, 
 
 May V. Thomson, 20 Ch. D. 705. 8 C. B. 225 ; In re Imperial Land 
 
 {in) Holland v. Eyre, 2 Sim. & Company of Marseilles, L. E.., 7 
 Stu. 194; Gibbons \. North Eastern Ch. 587; Household Fire and Car- 
 Metropolitan Asylum District, 11 riaye Accident Insurance Company 
 Beav. 1 ; Appleby v. Johnson, L. {limited) v. Grant, 4 Ex. D. 216. 
 R., 9 C. P. 158 ; Crosslcyv. May- (p) Ante, p. 49. 
 cock, L. R., 18 Eq. 180 ; Dontie- (q) Stat. 9 Geo. IV. c. 14, e. 7; 
 tvell V. Jenkins, C. A., 26 W. R. ante, p. 50. 
 294 : L. R., 8 Ch. D. 70.
 
 OF f oxiK \crs. 123 
 
 gagements," and is commonly called Lord Tentordcn's 
 Act {>'). By this statute no acknowledgment or promise Written 
 by words only can take any case of simple contract out ment'rcquired 
 of the operation of the Statute of limitations (.s), or to take the 
 deprive any party of the benefit thereof, unless such tiie Statute of 
 acknowledgment or promise shall be made or contained I^^^iitationa. 
 by or in some writing to be signed by the party charge- 
 able thereby {t ) . The effect of such a promise has 
 already been referred to (»). The statute makes no 
 mention of any signature by an agent ; but by a recent 
 statute the signature of an agent has been rendered 
 sufficient (u^). And no joint contractor is to lose the 
 benefit of the Statute of Limitations by reason only 
 of any ^vl'itten acknoAvledgment or promise made and 
 signed by any other joint contractor; but nothing therein 
 contained is to alter, or take away, or lessen the effect 
 of any payment of any principal or interest made by 
 any person whatsoever (y) . However, no indorsement 
 or memorandum of any payment written or made upon 
 any promissory note, bill of exchange or other writing, 
 by or on behalf of the party to whom such payment 
 shall be made, shall be deemed sufficient proof of such 
 payment, so as to take the case out of the operation of 
 the Statute of Limitations (~) . And by a recent statute 
 payment of any principal or interest by a co-contractor 
 or co-debtor will not deprive a debtor of tlio benefit of 
 the Statute of Limitations {/i). Lord Tenterden's Act 
 
 (r) Stat. 9 Goo. IV. c. 11. 118 ; Cleave v. Jones, G Ex. Rep. 
 
 (.s) Stat. 21 Jac. I. c. 16, s. 3. 573 ; Bawfidd v. Tuppn; 7 Ex. 
 
 {t) See Lechmere v. Fletcher, 1 Rep. 27 ; Fordham v. IFallis, 10 
 
 Cro. & Mee. 623; Bird v. Gean- Hare, 217; Kash\. Hodgson, 'Knj, 
 
 man, 3 Bing-. N. C. 883 ; Cheshjn 6.30 ; Fdivards v. Janes, 1 Kay & 
 
 V. Ihdby, 4 You. & Coll. 238. John. 534. 
 
 {)() Ante, p. 116. (--) Sect. 3. 
 
 (.r) Stat. 19 & 20 Vict. c. 97, {a) Stat. 19 & 20 Vict. c. 97, 
 
 s. 13. 8. 14, not retrospective; Jackson 
 
 {>j) Stat. 9 Geo. IV. c. 14, s. 1 ; v. irooUcn, 8 E. & B. 784. 
 Whlnman v. Ki/iniian, 1 Ex. Rep.
 
 124 
 
 OF (;hoses in actiox. 
 
 Promise to 
 pay debts 
 contracted in 
 infancy. 
 
 Representa- 
 tions of cha- 
 racter, &c. 
 
 further enacted, as has been already mentioned (i), that 
 no action should be maintained whereby to charge any 
 person upon any promise made after full age to pay any 
 debt contracted during infancy, or upon any ratification 
 after full age of any promise or simple contract made 
 during infancy, unless such promise or ratification should 
 be made by some writing signed by the party to be 
 charged therewith. But, as we have seen, every such 
 promise and ratification is now void (c). And it is 
 fm'ther enacted (d), that no action shall be brought 
 whereby to charge any person upon or by reason of 
 any representation or assurance made or given concern- 
 ing 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 as- 
 surance 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 (e). And it has been doubted 
 whether a representation made to a purchaser by the 
 trustee of some property, that the property was encum- 
 bered to a less extent than was actually the case, was 
 a representation concerning the ahilitij of the vendor 
 within the meaning of the statute (/). The better 
 opinion seems to be, that such a representation is within 
 the statute, and ought consequently to be obtained in 
 writing. 
 
 Bills and 
 notes. 
 
 In addition to those contracts which by statute are 
 requu-ed to be in writing, there exists a peculiar class of 
 
 (i) Stat. 9 Geo. IV. c. 14, s. 5, 
 ante, p. 117. 
 
 (c) Stat. 37 & 38 Vict. c. 62, 
 ante, p. 117. 
 
 id) Stat. 9 Geo. IV. c. 14, 
 6. 6. 
 
 (e) See 1 Mec. & Wels. 104, 
 
 123 ; Sivift V. Jeivsburij, L. R., 9 
 Q. B. 301. 
 
 (/) See Lyde v. Barnard, 1 
 Mee. & Wels. 101 ; Sicann v. 
 Phillips, 8 Ad. & Ell. 457 ; De- 
 vaiix V. Steinkelkr, 6 Bing. N. C. 
 84.
 
 OF CONTRACTS. 125 
 
 contracts, which in their nature are expressed in writing, 
 and for which a consideration is presumed to have been 
 given till the contrary is proved {g) . These are bills of 
 exchange and promissory notes {h) . The law relating 
 to bills of exchange, cheques and promissory notes was 
 codified by the BHls of Exchange Act, 1882 (/) . By this 
 Act (/i), a bill of exchange is defined as an unconditional A bill of ex- 
 order in writing, addressed by one person to another, ^ ^"°^' 
 signed by the person gi^^ng it (/), requiring the person 
 to whom it is addressed to pay on demand or at a fixed 
 or determinable future time a sum certain in money to 
 or to the order of a specified person or to bearer. 
 The person making the order is called the drawer, 
 the person on whom it is made the drawee, and the 
 person to whom the money is payable the payee. The 
 bill is sometimes made payable to the drawer him- 
 self, or to his order, or to him or bearer {iii). If the Acceptance. 
 person on whom the bill is drawn undertakes to pay it, 
 he writes on it the word " accepted," with his signature, 
 and is then called the acceptor. By the Bills of Ex- 
 change Act, 1882, the acceptance of a bill is defined as 
 the signification by the drawee of his assent to tlie order 
 of the drawer. And by the same Act, an acceptance is 
 invalid unless it complies with the following conditions, 
 namely : — (1) it must be written on the bill and be 
 signed by the drawee ; (2) it must not express that the 
 drawer "snll perform his promise by other means than 
 the payment of money. But the mere signature of the 
 drawee without additional words is sufficient ; and it is 
 sufficient if the signature of the drawee be ^Titten by 
 some other person by or under his authority (ii) . Where 
 
 {ff) See Mills v. Barber, 1 Mee. (/.■) Sect. 3. 
 
 & Wels. 425 ; Stat. 45 & 46 Vict. (l) See sect. 91. 
 
 c. 61, ss. 30, 89. (m) See stat. 45 & 46 Vict. 
 
 (/() See Bylos ou Bills, and c. 61, s. 5. 
 Bayley on Bills. («) Stat. 45 & 46 Vict. c. 61, 
 
 (i) Stat. 45 & 46 Vict, c Gl. sects. 17, 91, codifying the pro-
 
 126 
 
 OF CHOSES IN ACTION. 
 
 note 
 
 a bill is drawn in a set, the acceptance may be written 
 on any part, and it must be written on one part only (o). 
 If the drawee accepts more than one part, and such ac- 
 cepted parts get into the hands of different holders in 
 due course (/;), he is liable on every such part as if it 
 A promissory were a separate bill (o) . A promissory note, or note of 
 hand, as it is sometimes called, is a written promise from 
 one person to pay to another, or to his order, or to 
 bearer, a certain sum of money. The person making 
 the promise is called the maker of the note. And by 
 the Bills of Exchange Act, 1882 [q), a promissory note 
 is defined as an unconditional promise in writing made 
 by one person to another, signed by the maker (r), en- 
 gaging to pay, on demand or at a fixed or determinable 
 future time, a sum certain in money, to, or to the order 
 of, a specified person or to bearer. But it is provided 
 by the Act {q) that an instrument in the form of a note 
 payable to maker's order is not a note within the mean- 
 ing of the Act unless and iintil it is indorsed hj the 
 maker ; and that a promissory note is inchoate and in- 
 complete until delivery thereof to the payee or bearer. 
 
 Bills and 
 notes under 
 20s. 
 
 By statutes of the years 1775 and 1808, no negotiable 
 or transferable bill or note could be lawfully draAMi or 
 made for any sum under 20s, (s) ; but the provisions of 
 these Acts were repealed by the Bills of Exchange Act, 
 1882, as from the commencement of that Act (/"). It 
 had been previously provided, by a statute of the year 
 1860, that any person might draw upon his banker, who 
 
 visions of stats. 19 & 20 Vict, 
 c. 97, s. G ; 41 Vict. c. 13, s. 1 ; 
 which -were to the same effect, 
 and were repealed by the Act of 
 1882. 
 
 (o) Stat. 4.5 & 46 Vict. c. 61, 
 s. 71. 
 
 [p) See sect. 29 ; and see below. 
 
 {q) Stat 45 & 46 Vict. c. 61, 
 s. 83. 
 
 {r) See sect. 91. 
 
 («) Stats. 15 Geo. III. c. 51 ; 
 48 Geo. III. c. 88, s. 2. 
 
 {t) Stat. 45 & 46 Vict. c. 61, 
 s. 96. The Act received the 
 royal assent on the 18th Aug. 
 1882.
 
 OF CONTRACT:^. 127 
 
 slioukl bona fide hold money for his use, any draft or 
 order for the payment to the bearer, or to order, on 
 demand, of any sum of money less than 20s. (ii). By Bills and 
 Stat. 17 Geo. III. c. 30 {x), negotiable or transferable bills t^an bi. 
 and notes for the payment of sums of 20s. or of sums 
 above 20s. but less than o/., were rendered void, unless 
 they were executed in accordance with the conditions 
 thereby prescribed. One of these conditions precluded 
 their being made payable to bearer on demand. But 
 the operation of that statute was suspended for a limited 
 time by Stat. 37 Geo. III. c. 32. Stat. 37 Geo. III. c. 32 
 was continued by divers statutes for various periods (y), 
 but "\^•as made to expire by Stat. 7 Geo. lY. c. G, s. 1 ; 
 whereupon Stat. 17 Geo. III. c. 30 again came into force. 
 And by Stat. 7 Geo. IV. c. 6, s. 4, a penalty of 20/. was 
 imposed upon any person who should publish, utter, or 
 negotiate any bill or note, negotiable or transferable for 
 the payment of 20s., or above 20s., but less than 5/., 
 made, di-awn, or indorsed in any other manner than was 
 directed by Stat. 17 Geo. III. c. 30. By Stat. 7 Geo. IV. Notes for less 
 c. 6, s. 3, a penalty of 20/. is imposed upon every person able^ to bearer 
 who shall make, sign, issue, or re-issue in England any on demand. 
 promissory note in writing, payable on demand to the 
 bearer thereof for any sum of money less than 5/. 
 And by Stat. Geo. lY. c. C3, s. 1, a penalty not ex- 
 ceeding 20/. nor less than 5/., is imposed upon every 
 person who shall publish, utter, negotiate, or transfer in 
 England any note, payable to bearer on demand, for 
 less than 5/., ^^•hic]l shall ha^•e been made or issued out 
 of England. But nothing contained in Stats. 7 Geo. IV. 
 c. 6 (s), and 9 Geo. IV. c. Go {a), extends to any draft 
 
 (m) Stat. 23 & 24 Vict. c. Ill, Geo. III. cc. 24, 47, 107 (s. 8) ; 
 
 s. 19, repealed by stat. io & 46 44 Geo. III. c. 4 ; 45 Geo. III. 
 
 Vict. c. 61, s. 96. c. 2.5 ; 56 Geo. III. c. 21 ; 3 
 
 (.r) Made perpetual by stat. Geo. IV. c. 70. 
 
 27 Geo. III. c. 16. (c) See sect. 9. 
 
 (y) See stats. 37 Geo. III. cc. {a) See sect. 4. 
 61, 120; 38 Geo. III. c. 7; 39
 
 128 OF CHOSES IN ACTION. 
 
 or order drawn by any person on his banker for the 
 payment of money, held by such banker, to the use of 
 the drawer. Stat. 26 & 27 Vict. c. 105 repealed for 
 three years from the 28th of July, 1863, and until the 
 end of the then next ensuing session of parliament, the 
 provisions of Stats. 17 Geo. III. c. 30 and 7 Greo. lY. 
 c. 6, which imposed restrictions or penalties with regard 
 to bills for 20s. or above 20s. but less than 5/., or notes 
 for the same amount not being notes payable to bearer on 
 demand. This repeal has since been regularly extended 
 from year to year {b). And Stat. 17 Greo. III. c. 30 
 was wholly repealed by the Bills of Exchange Act, 
 1882 [e). The result of this complicated legislation 
 appears to be that the provisions of Stats. 7 Geo. IV. 
 c. 6, ss. 3, 4, and 9 Geo. IV. c. 0)6, s. 1, which impose 
 penalties with regard to notes for less than 51. payable to 
 bearer on demand, still remain in force ; but that no other 
 restriction or penalty is at present imposed with regard 
 to bills or notes for less than 5A But bills and notes 
 payable to bearer on demand are prohibited from being 
 issued by bankers, except by the banks and under the 
 restrictions mentioned in the Act passed to regulate the 
 issue of bank notes [d) . 
 
 Negotiation By the law merchant, the right to sue upon a bill of 
 
 notes. exchange was directly assignable by the delivery of a 
 
 bill payable to bearer, and the indorsement and delivery 
 of a bill payable to order {e). When the right to en- 
 force payment of the sum due upon a bill was so trans- 
 ferred, the bill was said to be negotiated {/) . By a 
 
 (i) Last extended by stat. 46 & 105; see stat. 30 & 37 Vict. 
 
 47 Vict. c. 40. c. 91. 
 
 (c) Stat. 45 & 46 Vict. c. 61, {d) Stat. 7 & 8 Vict. c. 32, ss. 
 
 8. 96. It appears, however, that 10, 11. 
 
 the operation of stat. 7 Geo. IV. {e) Eyre, C.B., Gibson y. Minet, 
 
 c. 6, 8. 4 (see above) is stiU sus- 1 H. Bl. 569, 605, 606 ; see ante, 
 
 pended only by the Act, which p. 5. 
 
 continues stat. 26 & 27 Vict. c. (/) See Blackburn, J., Crouch
 
 OF COXTRACTS, 129 
 
 statute of Auue, promissory notes were made negoti- 
 able in the same manner as inland bills of exchange {(j). 
 By the Bills of Exchange Act, 1882 (h), a bill or note 
 is negotiated when it is transferred from one person to 
 another in such manner as to constitute the transferee 
 the holder of the bill. The term " holder " in the Act Holder, 
 means the payee or indorsee of a bill or note who is 
 in possession of it, or the bearer thereof (/). And the 
 holder of a bill or note may sue thereon in his own 
 name (/•) . A bill or note i)ayable to bearer is negotiated 
 by delivery. A bill or note payable to order is nego- 
 tiated by the indorsement of the holder, completed by 
 delivery (/). An indorsement, in order to operate as a 
 negotiation, must be written on the bill or note itself 
 and signed by the indorser. The simple signature of 
 the indorser on the bill or note, without additional 
 words, is sufhcient {»i). And it is sufficient if his 
 signature be written thereon by some other person by 
 or under his authority (n). An indorsement may be 
 made in blank or special (o). An indorsement in blank Indorsement 
 specifies no indorsee, and a bill or note so indorsed ^^ ^^ ' 
 becomes payable to bearer. A special indorsement Special 
 specifies the person to whom, or to whose order, the bill ^^ o'^'^^eu . 
 or note is to bo payable (p). Thus, if a bill or note be 
 made payable to A. B. or order, and A. B. write his 
 name on the back, this operates as an indorsement in 
 blank ; and the bill or note becomes payable to bearer 
 and negotiable by delivery only. But if A. B. write 
 " Pay C. I), or order, A. B." on the bill or note, this is 
 a special indorsement ; and, in order to be negotiated, 
 
 V. Credit Fonder, L. R., 8 Q. B. (J) Sect. 2. 
 
 374, 381, 382. {k) Sects. 38, 89. 
 
 (//) Stat. 3 & 4 Anne, c. 8, Re- [l) Sects. 31, 89. 
 
 vised ed. (c. 9, Ruft'head's ed.) ; {m) Sects. 32, 89. 
 
 made perpetual by stat. 7 Anne, («) Sect. 91.- 
 
 c. 25, 8. 3. (o) Sects. 32 (6), 89. 
 
 (//) Stat. 4.5 & 46 "Vict. c. 61, {p) Sects. 34, 89. 
 BS. 31, 89. 
 
 W.P.P. K
 
 i;j50 
 
 OF CHOSES IN ACTION. 
 
 Bill or note 
 payable to 
 bearer. 
 
 the bill or note must be again indorsed by C. D. By 
 the Bills of Exchange Act, 18S2 ((/), when a bill has 
 been indorsed in blank, any holder may convert the 
 blank indorsement into a special indorsement by writing 
 above the indorser's signature a direction to pay the bill 
 to or to the order of himself or some other person. By 
 the same Act, a bill or note is payable to bearer which 
 is expressed to be so payable, or on which the only or 
 last indorsement is an indorsement in blank (;■). 
 
 Cheque. 
 
 Banker's 
 protection. 
 
 Payment in 
 due course. 
 
 A cheque is defined by the Bills of Exchange Act, 
 1882, as a bill of exchange drawn on a banker payable 
 on demand. And the provisions of that Act applicable 
 to a bill of exchange paj'able on demand apply to a 
 cheque, except as otherwise provided therein (s). The 
 Act provides that, when a bill payable to order on 
 demand is drawn on a banker, and the banker on whom 
 it is drawn pays the bill in good faith and in the 
 ordinary course of business, it is not incumbent on the 
 banker to show that the indorsement of the payee or 
 any subsequent indorsement was made by or under the 
 authority of the person whose indorsement it pm'ports 
 to be, and the banker is deemed to have paid the bill in 
 due course, although suoh indorsement has been forged 
 or made without authority (t). Payment in due course 
 means payment made at or after the maturity of the 
 bill to the holder thereof in good faith and without 
 notice that his title thereto is defective (ti) . A previous 
 Act of the present reign provides that any draft or 
 
 (-?) Stat. 45 & 46 Vict. c. 61, 
 8. 34, sub-s. 4 ; see sect. 8, sub-s. 
 3. Before this Act was passed, 
 if a bill were once indorsed in 
 blank, it was always payable to 
 the bearer by any of the parties 
 thereto ; but the special indorser 
 was not liable to the bearer 
 Avithout the indorsement of the 
 
 person to whom he had specially 
 indorsed it ; Smith v. Clark, 1 
 Peake, 295 ; Waller v. Macdonald, 
 2 Ex. 527. 
 
 (r) Sects. 8 (3), 89. 
 
 (.s) Stat. 45 & 46 Vict. c. 61, s. 
 73. 
 
 (t) Sect. 60. 
 
 («) Sect. 59.
 
 OF CONTRACTS. l^Jl 
 
 order drawn upon a banker for a sum of money payable 
 to order on demand which shall, when presented for 
 payment, purport to be indorsed by tlio person to whom 
 the same shall bo drawn payable, shall be a sufficient 
 authority to such banker to pay the amount of such 
 draft or order to the bearer thereof (.r) . The laAV relat- Crossed 
 ing to crossed cheques on bankers is now contained in ^ ^^^'^^• 
 the Bills of Exchange Act, 1882 (//). 
 
 The effect of accepting a bill, or making a promissory Liability of 
 note, is to render the acceptor or maker primarily liable ^^^'^^^ °^ ' 
 to pay the same to the person entitled to require pay- 
 ment (z) . The effect of drawing a bill is to make the of draAver. 
 drawer liable to payment, if the acceptor make default, 
 provided that the requisite proceedings on dishonour be 
 duly taken {a). The effect of indorsing a bill or note Liability of 
 is to make the indorser also liable to payment, if the 
 acceptor of the bill or maker of the note should make 
 default, provided that the requisite proceedings on dis- 
 honour be duly taken (b). The indorsement operates as 
 against the indorser as a now drawing of the bill by 
 liim {(■) . An indorsement, however, may be made 
 without recourse to the indorser, or " sans recours," as 
 it is generally expressed, in which case the indorser 
 avoids all personal liability {(/). The Bills of Exchange Presentment 
 Act, 1882, enacts that, subject to the provisions of the °^ paymcn . 
 Act, a bill must be duly presented for payment ; and 
 that, if it be not so presented, the drawer and indorsers 
 shall be discharged {e) . And presentment for payment 
 is necessary in order to render the indorser of a note 
 
 M Stat. 16 & 17 Vict. c. 59, («) Sec stat. 45 & 46 Vict. c. 61, 
 
 8. 19. es. 55, 57. 
 
 (//) Stat. 45 & 46 Vict. c. 61. (A) Il>icL ss. 55, 57, 89. 
 
 {z) See Stat. 45 & 46 Vict. c. 61, (c) Feninj v. Iiuics, 1 C, M. & 
 
 88. 54, 57, 88 ; Duncan, lox ^- Co. R. 441. 
 
 V. North i- South Wales Bank, 6 {d) Byles on Bills, 117, 6tlied. ; 
 
 App. Gas. 1, 13. see stat. 45 & 46 Vict. c. 61, s. 16. 
 
 (r) Ibid. s. 45. 
 
 iv2
 
 132 
 
 OF CHOSES IN ACTION. 
 
 Notice of 
 dislionour. 
 
 Protest. 
 
 liable (_/). The drawer of a bill, or the iiidorser of a 
 bill or note, will, however, be discharged from all 
 liability, unless the person requiring payment should, 
 within a reasonable time, give him notice' that the bill 
 or note has not been paid, or, as it is termed, has been 
 dishonoured, and give him to understand, either ex- 
 pressly or by implication, that he looks to him for 
 payment (r/). And the Bills of Exchange Act, 1882, 
 provides that, subject to the provisions of the Act, 
 when a bill has been dishonoured by non-acceptance, or 
 a bill or note by non-payment, notice of dishonour 
 must be given to the drawer and each indorser of a 
 bill, or to each indorser of a note ; and any drawer or 
 indorser to whom such notice is not given is dis- 
 charged (//). The rules regulating the validity of a 
 notice of dishonour are codified by the Act (/) ; as are 
 also the rules, which determine the cases, in which 
 delay in giving notice of dishonour is excused, or notice 
 of dishonour is dispensed with (/.•). In order to charge 
 the drawer or indorser of a foreign bill of exchange, by 
 the custom of merchants, the bill must be protested by 
 a notary public (/). This protest is a declaration by 
 him in due form that payment has been demanded and 
 refused (di). And by the Bills of Exchange Act, 1882, 
 where a foreign bill, appearing on the face of it to be 
 such, has been dishonoured by non-acceptance, it must 
 be duly protested for non-acceptance ; and where such a 
 bill, which has not been previously dishonoured by non- 
 acceptance, is dishonoured by non-payment, it must be 
 duly protested for non-payment (;/). By the same Act, 
 where a dishonoured bill is required or authorized to be 
 
 (/) Stat. 45 & 46 Vict. c. 61, 
 s. 87, sub-s. 2. 
 
 iff) Hartley v. Case, 4 B. & C. 
 339 ; Byles on Bills, 21Z et seq., 
 Uh. ed. ; see stat. 45 & 46 Vict. 
 c. 61, ss. 48—50. 
 
 (//) Ibid. 88. 4S, 89. 
 
 (0 Ibid. s. 49. 
 \k) Ibid. s. 50. 
 
 (0 Gale V. Walsh, 5 T. R. 239. 
 [m) See stat. 45 & 46 Vict. c. 61, 
 H. 51, sub-3. 7. 
 
 {u) Ibid. e. 51, siib-s. 2.
 
 OF CONTHACTS, 133 
 
 protested, and the services of a notary cannot Le obtained 
 at the place whore the bill is dishonoured, any house- 
 holder or substantial resident of the place may, in the 
 presence of two witnesses, give a certificate, signed by 
 them, attesting the dishonom- of the bill, and the certi- 
 ficate shall in all respects operate as if it were a formal 
 protest of the bill (o) . Protest is unnecessary in the 
 case of an inland bill of exchange, and in the case of a 
 promissory note, whether inland or foreign {p). 
 
 In consequence of a consideration being presumed to Bond fide 
 have been given for every bill or note till the contrary is ^'^^^J^^^ ™^y 
 
 ° '^ _ '^ entorce pay- 
 
 shown, it follows, that if a bill or note should have been ment. 
 drawn, accepted or indorsed without any consideration, 
 or for a consideration which is illegal, a bond fide holder 
 for valuable consideration, or any indorsee from him, 
 may, nevertheless, enforce payment ; for when he took 
 the security he w^as entitled to rely on the legal pre- 
 sumption of a proper consideration having been given {q) . 
 It is stated by Sir William Blackstone (r), "that every Reason why a 
 note, from the subscription of the drawer, carries with [g pr^^e^^ 
 it an internal evidence of a good consideration." This, 
 however, appears to be a mistake. The law does not 
 give this effect to bills of exchange and promissory notes 
 in respect of the undertaking being evidenced by writing, 
 but in order to strengthen and facilitate that commercial 
 intercourse which is carried on through the medium of 
 such securities («) . On this ground the law allows these 
 instruments to form an exception to the general rule 
 that a consideration must be shown for every agree- 
 ment, although evidenced by "^a-iting. By the Bills of 
 
 (o) Ibid. s. 94. nolds, 2 Q. B. 196 ; Mai/ v. Cluip- 
 
 {p) Ibid. ss. 51 (1), 89 (1, 4). man, 16 M. & W. 355. 
 
 {q) Collins V. Marti)!, 1 Bos. & [r) 2 Black. Comm. 446. 
 
 Pull. 651 ; Morris v. Lee, Bayley («) 1 Fonbl. Eq. 343, 344. 
 
 on Bills, 500 ; Robinson v. Rey-
 
 134 
 
 OF (HOSES IN ACTION". 
 
 Exchange Act, 1882, every party whose signature ap- 
 pears on a bill or note, is pn'))Hc facie deemed to have 
 become a party thereto for value ; and every holder {t) 
 of a bill or note is prima facie deemed to be a holder in 
 Holder in due ^uq course (ti) . A holder in due course is a holder who 
 
 course 
 
 has taken a bill or note, complete and regular on the 
 face of it, imder the following conditions ; namely, — 
 
 (a) That he became the holder of it before it was 
 
 overdue and without notice that it had been 
 previously dishonom-ed, if such was the fact. 
 
 (b) That he took the bill in good faith and for value, 
 
 and that at the time the bill was negotiated to 
 him he had no notice of any defect in the title 
 of the person who negotiated it (.r) . 
 
 Days of 
 grace. 
 
 Bill or note 
 payable on 
 demand. 
 
 Summary 
 procedure on 
 bills and 
 notes. 
 
 Three days, called days of grace, beyond the time 
 fixed for payment are allowed on every bill and note, 
 except such as are payable on demand. By the Bills of 
 Exchange Act, 1882, a bill or note is payable on 
 demand, which is expressed to be payable on demand, 
 or at sight, or on presentation, or in which no time for 
 payment is expressed (//). The remedies on bills of 
 exchange and promissory notes were facilitated by the 
 Summary Procedure on Bills of Exchange Act, 1855 (s). 
 But, by the Rules of the Supreme Court, 1883 {a), no 
 writ may now be issued under that Act in the High 
 Court of Justice. The same Rules of Court, however, 
 provide for summary procedure in all actions where the 
 plaintiff seeks only to recover a debt or liquidated 
 demand in money payable by the defendant, with or 
 
 {t) See ante, p. 129. 
 
 {u) Stat. 4o & 46 Vict. c. 61, 
 ss. 30, 89. 
 
 (.*:) Sects. 29, 89. 
 
 (y) Sects. 10, 89. Stat. 34 & 35 
 Vict. c. 74, repealed by the Act of 
 
 1882, contained provisions, simi- 
 lar in effect, as to bills and notes 
 payable at sig-lit or on presenta- 
 tion. 
 
 (z) Stat. 18 & 19 Vict. c. 67. 
 
 (o) Ord. II. r. 6.
 
 OK CONTKACiS. 135 
 
 without interest, arising on a bill of exchange, promissory 
 note or cheque (/>) . 
 
 "We now come to tlie second class of contracts. Contracts by 
 namely, special contracts, or contracts by deed. These 
 contracts differ from mere simple contracts in the fol- 
 lowing important particular, that they of themselves 
 import a consideration (c), whilst in simple contracts a 
 consideration must be proved. For the law presumes 
 that no man will put his seal to a deed without some 
 good motive (d). And when an agreement is once 
 embodied in a deed, such deed becomes itself the agree- 
 ment, and not evidence merely, as in the case when a 
 parol agreement is reduced to writing. On this prin- Alteration, 
 ciple it apj)ears to have been held, that after a deed had ' 
 
 been executed, any alteration, rasm'e or addition made 
 in a material point, even by a stranger, would render 
 
 {b) See Orcls. III. (r. G), XIV., 'and Appendix C, sect. 4, Nos. 3— Stamps on 
 6. The stamps on bills and notes are now regulated by stat. 33 & 34 bills and notes. 
 Vict. c. 97, schedule, tit. Bill of Exchange (see stat. 45 & 46 Vict. 
 c. CI, s. 97), and are, with some exceptions, as follows: — 
 
 £ s. d. 
 Bill of exchange payable on demand . . . . ..001 
 
 Bill of exchange of any other kind whatsoever (except a 
 bank note) and promissory note of any kind whatsoever 
 (except a bank note), di'awn or expressed to be payable, 
 or actually paid, or endorsed, or in any manner nego- 
 ciated in the United Kingdom : where the amount or 
 value of the money for which the bill or note 
 or made does not exceed £,') 
 Exceeds £o and does not exceed £10 
 10 „ 25 
 
 25 „ 50 
 
 50 ,, 75 .. 
 
 75 „ 100 
 
 100— 
 for every £100, and also for any fractional part of £100, 
 
 of such amount or value . . . . . . ..010 
 
 (o) 1 Fonbl. Eq. 342. of Real Property, p. 149, 13th ed.; 
 
 {d) See Principles of the Law 154, 14th ed. 
 
 is dra-' 
 
 svu 
 
 
 
 
 .. 
 
 
 
 1 
 
 
 .. 
 
 
 
 2 
 
 
 .. 
 
 
 
 3 
 
 
 .. 
 
 
 
 6 
 
 
 .. 
 
 
 
 9 
 
 
 .. 
 
 1 
 

 
 136 
 
 OF CUOSKfS IN ACTION 
 
 the deed void [e). But this doctrine has now been 
 relaxed, so far as regards additions consistent with the 
 purposes of the deed (./') ; whilst, with regard to in- 
 consistent additions made by a party, it has been ex- 
 tended to a mere WTitten agreement {(/). But although 
 it is no doubt highly important that all legal instruments 
 should be preserved in their integrity, it may perhaps 
 be doubted whether the doctrine in question woidd 
 ever have existed, had there been no other reason for it 
 than the duty of a person, having the custody of an 
 instrument made for his benefit, to preserve it in its 
 original state. 
 
 Objects of a 
 contract, 
 lawful or 
 unlawful. 
 
 Mala pro- 
 hibita and 
 mala in se. 
 
 Having now spoken of the promise, whether express 
 or implied, which is necessary to a contract, and also 
 of the consideration, whether express or implied, by 
 which such promise is sustained, let us consider some 
 important objects for which a contract may be made, 
 and which seem to require a special mention. The 
 object for which a contract is made maybe either lawful 
 or unlawful ; and if it be unlawful the contract will be 
 void, and the illegality may be pleaded as a defence 
 to an action brought upon such a contract (A). A dis- 
 tinction was formerly taken between contracts whose 
 object was merely prohibited by the law under some 
 given penalty, and those whose object was morally 
 wrong. The former were termed mala 2)rohibifa, the 
 latter mala in se (i) ; and it was considered that, as 
 the former involved no moral turpitude, a man might 
 embrace either of the alternatives offered by the law, 
 
 {c) Figoi's case, 11 Rep. 27 a. 
 
 (/) AldoKs V. Cornivall, L. E., 
 3 Q. B. 573 ; Adsetts v. Hives, 33 
 Beav. 55 ; and see Pattinson v. 
 Luckley, L. R., 10 Ex. 330. 
 
 {g) Davidson v. Cooper, 13 Mee. 
 & Wels. 343, 352 ; iloUctt v. 
 Wackerbarth, 5 C. B. 181. 
 
 {h) CoUins V. Blantern, 2 Wils. 
 341, 347; S.C. 1 Smith's Leading 
 Cases, 154 ; Paxton v. Pop/iam, 9 
 East, 408 ; Pole v. Harrobin, 9 
 East, 416, n. ; Be Begnis v. Ar- 
 mistcad, 10 Bing. 107 ; S. C. 3 
 Moo. & Scott, 516. 
 
 (0 See 1 Black. Com. 54, 57.
 
 OF (:0>.TRA(TS. 137 
 
 and either abstain from the offence and remain harmless, 
 
 or commit it and suffer the penalty. This distinction, Distinction 
 
 however, has long been exploded (/>•) ; for it is con- ^o^«'^Pl«d<^<i- 
 
 sidered to be equally unfit that a man should be allowed 
 
 to take advantage of what the law says he ought not to 
 
 do, w^hether the thing be prohibited because it is against 
 
 good morals or whether it be prohibited because it is 
 
 against the interest of the state. Whether, therefore. Contract with 
 
 the object of a contract be unlawful because morally object void. 
 
 wrong, or unlawful by the policy of the common law, 
 
 or unlawful because a penalty is attached to it by any 
 
 particular statute, in every case the contract is void ; 
 
 and it is indifferent, under such circumstance, whether 
 
 the contract be made by deed, or by parol merely. 
 
 Thus if a bond uuder seal be given by a man to a woman Bond to in- 
 
 in order to induce her^o cohabit with him, it is void tation void^' 
 
 for the immorality of its object (/). But a bond given But bond for 
 
 to a woman in respect of the injury she has sustained P^^t cohabita- 
 
 . . . . . tion good. 
 
 by past cohabitation is valid (w). For in this case the 
 
 object is not immoral ; and the consideration implied 
 
 by the bond being a deed under seal supplies the want 
 
 which would otherwise exist of a proper consideration ()i). 
 
 If a contract have more than one object, and some of If some ob- 
 
 the objects are lawful whilst the others are unlawful, in^'oSr^"^ 
 
 the unlawful objects will not vitiate the others (o), unlawful. 
 
 (A-) Auhert v. Maze, 2 Bos. & 7i'y«e v. Moore, 1 Sim. & Stu. 61 ; 
 
 Pul. 374, 375 ; Cannan v. Bnjec, 2 Sim. & Stu. 2G0; Nyc\. Mosclvij, 
 
 3 B. & Aid. 183 ; Bcnslnj v. Big- 6 Barn. & Cress. 133 ; 2 Sim. IGl. 
 
 nold, 5 Bam. & Aid. 335, 341; (n) BiH>iinfftonv.Tral/is,iBam. 
 
 Cope V. liowlands, 2 Mce. & Wels. & Aid. GoO, 652 ; fiuie, p. 113. 
 
 149, 157; Fergussonx. Xorman, 5 (&) Gaskell v. King, 11 East, 
 
 Bing-. N. C. 76, 84. 165 ; Wigg v. Shuttleivorth, 13 
 
 (/) Walker \. Perkins, 1 Wm. East, 87 ; jffowe v. /Si/w^e, 15 East, 
 
 Black. 517; S. C. 3 Burr. 1568; 440; in all which decisions un- 
 
 Gray v. Mathias, 5 Ves. 286. lawful covenants to pay the pro- 
 
 (w) Turner v. Vaiighan, 2 Wils. perty tax were held not to vitiate 
 
 339 ; Silly. Spencer, 2 Amb. 641 ; other vahd covenants in the same 
 
 Gray v. Mathias, 5 Ves. 286 ; instrument. See also Kerrison v. 
 
 Hall V. Palmer, 3 Hare, 532; Cole, %'Ea,%t,2Zl; 3Iallany. Mag,
 
 138 
 
 OF ( llOSKS IN ACTION. 
 
 provided the good part bo separable from, and not 
 dependent upon, that which is bad {p) ; unless of course 
 the whole contract shoukl be rendered void by any 
 enactment to the effect that all instruments containing 
 any matter contrary thereto shall be void, in which 
 case everything connected with the instrument will be 
 vitiated {q). And if the good part of a contract be in- 
 separable from the bad, as if a contract be made partly 
 in consideration of the payment of money (which would 
 be good), and partly for a consideration whose object is 
 illegal, the illegal part of the consideration will vitiate 
 the good, and render the whole contract void (>•). 
 
 Immoral 
 
 publication. 
 
 Contracts in 
 restraint of 
 trade. 
 
 The instance above given of a bond for future cohabi- 
 tation is an example of a contract void on account of 
 its object being maluin in se, or morally wrong. In the 
 same manner no action can be maintained on any con- 
 tract for the sale or publication of any libellous or 
 immoral book or print (.s), A striking instance of a 
 contract, void on account of its object being contrary to 
 the policy of the common law, occurs in the case of a 
 contract in restraint of trade. It is for the advantage 
 of the community that every person should be allowed ' 
 the full exercise of his trade or profession ; and any 
 contract whereby a person is attempted to be restrained 
 from following his usual calling, even for a limited time, 
 is therefore absolutely void (;"). But a contract is not 
 
 11 Mee. & Wels. 653; Green v. 
 Frice, 13 Mee. & Wels. 695 ; 
 affirmed 16 Mee. & Wels. 346 ; 
 KichoUs V. Stretton, 10 Q. B. 346. 
 
 I^p) See Biddcll v. Leeder, 1 
 Barn. & Cress. 327, decided on 
 the old Ship Registry Act. 
 
 {q) See 1 Smith' s Leading Cases, 
 169, and the statutes recited in 
 the preamble to 5 & 6 WUl. IV. 
 c. 41. 
 
 [r) Featherslone v. Hutchinson, 
 Cro. Eliz. 199; Bridge v. Cage, 
 Cro. Jac. 103. See also per Tin- 
 dal, C. J., in Watte v. Jones, 1 
 Bing. N. C. 662; Hopkins v. 
 Freseott, 4 C. B. 578. 
 
 (s) Fores v. Johnes, 4 Esp. 97 ; 
 Stockdale v. Onwhyn, 5 Bam. & 
 Cress. 173 ; S. C. 7 Dow. & E,y. 
 625 ; Lawrence\. Smith, Jac. 471. 
 
 (0 Year Book, P. 2 Hen. V.
 
 OF CONTRAC'IS. L'JO 
 
 rendered void hy having for its object the restraint of a 
 person from trading in a particular place (u), or within 
 a reasonable distance from any particular place (.r), for 
 he may carry on his trade elsewhere ; nor is a contract 
 void which restrains a person from serving a particular 
 class of customers (//) (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 {z), for this is not in restraint 
 of trade when it is to be carried on for his life. In a 
 recent case {a) a person agreed that he would become 
 assistant to a dentist for four years, and that after the 
 expiration of that term he would not carry on the busi- 
 ness of a dentist in Loudon, or any of the towns or 
 places in England or Scotland where the dentist might 
 have been practising before the expiration of the service. 
 And it was held that the covenant not to practise in 
 London was valid ; but that the stipulation as to the 
 other towns and places in England or Scotland was void. 
 And according to the rule above mentioned (b), that 
 where some of the objects of a contract are laAvful and 
 
 pi. 20; Ifanl V. Byrne, .') Mee. k C. B. 241 ; Avcri/ v. Lioifjfonl, 
 
 Wels. 548 ; lllml v. Gray, 1 Mau. Kay, 663, 607, where the cases 
 
 & Gran. 195; AUsopp\. Wheat- are collected; Ifariiis v. Farsoiis, 
 
 croft, L. R., 15 Eq. 59. See, 32 Boav. 328; Brampton \. Bed- 
 
 however, Itoussillon v. lioit^siUoii, docs, 13 C. B., N. S. 538. The 
 
 L. E.., 14 Ch. D. 351. distance is reckoned as measured 
 
 («) Hitchcock V. Coker, G Ad. on a maj) ; Moitfet v. Cole, Ex. 
 
 & EI. 438; S. C. 1 Nev. & P. Ch., 21 W. R. 175; Law Rep., 8 
 
 796 ; Archer v. 3Iarsh, 6 Ad. & Ex. 32. 
 
 Ell. 959 ; S. C. 2 Nev. & P. 502 ; {y) Rannie v. Irvine, 7 Mau. k 
 
 Leiyhton v. Wales, 3 Mee. & Wels. Gr. 969. 
 545. [z) Wullis v. Bay, 2 Mee. & 
 
 (.c) Davis V. 2IasoH, 5 T. Rep. Wels. 273. 
 118; Proctor \. Sergeant, 2 Man. {a) Mallan v. May, 11 Mee. & 
 
 & Gr. 20 ; S. C. 2 Scott, N. R. Wels. 653. See also Green v. 
 
 289 ; Whiltaker v. Howe, 3 Beav. Fricc, 13 Mee. & Wels. 695 ; 
 
 383 ; Femberton v. Vauyhan, 10 aftinned, 16 Mee. & Wels. 346 ; 
 
 Q. B. 87; Atkyns v. Kinnier, 4 Kicholls v. Stretton, 10 Q. B. 346. 
 Ex. Rep. 776 ; Elves v. Crofts, 10 {h) Ante, p. 137.
 
 liO 
 
 OI' (HOSES IN ACTION. 
 
 others unlawful, the unlawful objects will not vitiate the 
 others, it was held that the stipulation as to practising 
 in London was not affected by the illegality of the re- 
 mainder of the agreement. Tlie rule that contracts in 
 restraint of trade are void at law has recently been in 
 some respects relaxed in favour of trades unions by 
 the Trades Union Act, 1871 (c). Maintenance, or the 
 unlawful maintaining of another person's suit {(I), and 
 Maintenance, champerty, which is the maintenance of a suit in con- 
 Champerty, sideration of a share in the property to be gained {e) , 
 are both unlawful at common law and by divers ancient 
 statutes. And any contract which commits either of 
 these offences is void (/"). 
 
 The Trades 
 Union Act, 
 1871. 
 
 Charges on 
 benefices. 
 
 The cases in which contracts may be void in conse- 
 quence of their contravening some acts of parliament 
 are too numerous to be here specified. As an instance 
 may be mentioned contracts by clergymen holding 
 benefices with cure of souls, made for the purpose of 
 charging such benefices with any sum of money ; which 
 contracts are rendered void by a statute of Elizabeth (g). 
 And in these cases it has been held that any personal 
 covenant for the payment of the money charged is not 
 invalidated by being contained in the same deed as the 
 attempted charge on the benefice {/>) . Contracts for the 
 sale or transfer of stock, of which the person contract- 
 ing was not possessed at the time, and of which no 
 
 (c) Stat. 34 & 85 Vict. c. 31, 
 amended by stat. 39 & 40 Vict. 
 c. 22 ; and see stat. 38 & 39 Vict. 
 c. 86. 
 
 {d) Bac. Abr. tit. Mainten- 
 ance ; Bradlaughy. Xeivdegaie, 11 
 Q. B. D. 1. 
 
 (e) Bac. Abr. tit. Champerty. 
 
 (/) See Hunter v. Daniel, 4 
 Hare, 420, 431 ; Sjjryc v. Porter, 
 
 7 E. & B. 58; 26 L. J., Q. B. 
 61 ; Hutleyv. Mntkij, Law Rep., 
 
 8 Q. B. 112. 
 
 {(/) Stat. 13 EHz. c. 20. See 
 Shaw T. Pritchard, 10 Bam. & 
 Cress. 241 ; Long v. Stork, 3 De 
 Gex & Smale, 308. 
 
 (//) Monys v. Leake, 8 T. Rep. 
 411 ; Sloane v. Packman, 11 Mee. 
 & Wels. 770.
 
 OF CONTRACTS. 141 
 
 transfer was Intended to be made, were formerly void 
 by the Stock Jobbing Act (i) ; and money lent for the stockjobbing 
 purpose of settling losses which had arisen from such 
 illegal contracts could not be recovered back (k). But 
 this Act is now repealed (/). Securities for money won Securities for 
 at play or any game, or by betting on any game, or for pjay?^ ■« on a 
 money lent for gaming or betting at the time and place 
 of such play, were declared by a statute of Anne to be 
 utterly void [di) ; but by a later statute {n) such secu- 
 rities are not to be utterly void, but are to be taken to 
 have been given for an illegal consideration ; they are 
 consequently now void only as between the parties, but 
 valid in the hands of any innocent holder, to whom 
 they may have been transferred without notice of the 
 illegality of the transaction in which they originated (o). 
 And by a more recent statute (p) it is enacted, that all Contracts 
 contracts or agreements, whether by parol or in writing, ^ainin^ void 
 by way of gaming or wagering, shall be null and void ; 
 and tliat no suit shall be brought or maintained in any 
 court of law or equity for recovering any sum of money 
 or valuable thing alleged to be won upon any wager, or 
 which shall have been deposited in the hands of any 
 person to abide the event on whicli any wager shall 
 have been made. But this enactment is not to apply 
 to any subscription or contribution, or agreement to 
 subscribe or contribute, for or towards any plate, prize 
 or sum of money to be awarded to the winner or 
 winners of any lawful game, sport, pastime or exercise. 
 Contracts for the payment of money, whereby there Usurious con- 
 should be reserved more than five per cent, interest, *^'''^^*'^' 
 were in like manner declared void by a statute of 
 
 (i) Stat. 7 Geo. II. c. 8, s. 8. («) 5 & 6 Will. IV. c. 41 ; 
 
 See jyo«<, the chapter on Stock. Hawker v. Ilalleicell, 3 Sma. & 
 
 [k) Cannan v. Bri/ce, 3 Bam. & Giff. 194. 
 Aid. 179. (o) See ante, p. 133. 
 
 (/) Stat. 23 Vict. c. 28. {p) Stat. 8 & 9 Vict. c. 109, 
 
 (w) Stat. 9 Anne, c. 14. a. 18.
 
 142 
 
 OF L'llOSES IN ACTION. 
 
 Usury laws 
 now repealed. 
 
 Contracts of 
 infants void. 
 
 Contract of 
 drunken man 
 
 Anne, called the Usury Law {>') ; but in order to pro- 
 tect innoeeut holders of secmities given for usurious 
 consideration, it was subsequently declared that such 
 contracts should not be absolutely void, but should be 
 considered to have been made for an illegal considera- 
 tion (.y). However, by a statute of the reign of King 
 William the Fourth (/), it was provided that no bill of 
 exchange or promissory note made payable at or within 
 three months after the date thereof, or not having more 
 than three months to run, should be void by reason of 
 any interest taken thereon or secm-ed thereby, or any 
 agreement to pay or receive or allow interest in dis- 
 counting, negociating or transferring the same. And 
 by a subsequent statute [ii), all bills of exchange and 
 promissory notes made payable at or within twelve 
 months after the date thereof, or not having more than 
 twelve months to run, and all contracts for the loan or 
 forbearance of money above the sum of 10/. sterling, 
 were exempted from the operation of the Usury Law. 
 Nothing, however, contained in the last -mentioned Act 
 was to extend to the loan or forbearance of any money 
 upon security of any lands, tenements or hereditaments, 
 or any estate or interest therein. And now, by an Act 
 passed on the 10th of August, 1854 (./•), all the laws 
 against usury are repealed. But where interest is now 
 payable upon any contract, express or implied, for pay- 
 ment of the legal or current rate of interest, or where 
 interest is payable by any rule of law, the same rate 
 is recoverable as before the Act (//). We have already 
 seen that by the Infants' Relief Act, 1874 (~), the con- 
 tracts of infants (except for necessaries), which before 
 were voidable, are now void. The contract of a man 
 
 {)■) Stat. 12 Anne, st. 2, ch. 16. 
 
 {Jj Stat. 5 & 6 Will. IV. c. 41. 
 
 (0 Stat. 3 & 4 Will. IV. c. 98, 
 
 7. 
 
 («) 2 & 3 Vict. c. 117. 
 
 (.(•) Stat. 17 & 18 Vict. c. 90. 
 [y] Sect. 3. 
 
 (;) Stat. 37 & 38 Vict. c. 62, 
 ante, p. 117.
 
 OF COXTUACTS. 143 
 
 too drunk to know what he is about is voidable only, 
 and not void {a). 
 
 It was formerly unlawful for any attorney or solicitor Contracts by 
 to make a bargain, with his client in any action or suit, goUdtors ^" 
 for any other costs than those to be allowed on taxation 
 of his bill by the proper ofReer of the Court (b). But 
 a beneficial cliange was made in this respect b}' the 
 Attornies and Solicitors Act, 1870 (e). This Act pro- Tlie Attomics 
 vides (d) that an attorney or solicitor may make an ^^^ iVto'^"^'* 
 agreement in writing with his client respecting the 
 amount and manner of payment for the whole or any 
 part of any past or future services, fees, charges or 
 disbursements in respect of business done or to be done 
 by such attorne}^ or solicitor, whether as an attorney or 
 solicitor, or as an advocate or conveyancer, either by a 
 gross sum, or by commission or per-centage, or by salary 
 or otherwise, and either at the same or at a greater or at 
 a less rate as or than tlie rate at which he would other- 
 wise be entitled to be remunerated. But such agree- 
 ments are subject to many provisions and conditions 
 contained in the Act (e), and intended to be for the 
 secirrity of the client ; and nothing in the Act contained 
 is to be construed to give validity to any jiurchase by 
 an attorney or solicitor of the interest, or any part of 
 the interest, of his client in any suit, action or other 
 contentious proceeding to be brought or maintained, or 
 to give validity to any agreement by which an attorney 
 or solicitor retained or employed to prosecute any suit 
 or action stipulates for payment only in the event of 
 success in such suit, action or proceeding (_/'). By the 
 
 (rt) Mittthcics V. Baxter, L. R., (c) Stat. 33 & 34 Vict. c. 28. 
 
 8 Exch. 132. ((/) Sect. 4. 
 
 (5) Earle v. Uopwood, 9 C. B., {e) Sects. 4 — 15. 
 
 N. S. 560. (/)Sect. 11.
 
 144 OF CHOSES IX ACTION. 
 
 Allattomics Supreme Court of Judicature Act, 1873, all solicitors, 
 
 now solicitors ^-ttomies and proctors are now called solicitors {g) . The 
 
 Solicitors' remuneration of solicitors in respect of business con- 
 
 Romuncra- nected with sales, purchases, leases, mortffajyes, settle- 
 tion Act, 1881. ^ . ' ^^ ' ' . ^ f . ' 
 
 ments and other matters ot conveyancmg, and m respect 
 of other business not being business in any action, or 
 transacted in any Court, or in the chambers of any 
 judge or master, and not being otherwise contentious 
 business, is now regulated by the Solicitors' Eemuneration 
 Act, 1881 (//). It is thereby enacted that the Attorneys 
 and Solicitors Act, 1870 (/), shall not apply to any 
 business to which the Act of 1881 relates (/.•). But the 
 Act of 1881 provides (/) with respect to any such busi- 
 ness, that it shall be competent for solicitor and client 
 to make an agreement, before or after or in the course 
 of any such business, for the remuneration of the 
 solicitor, to such amount and in such manner as the 
 solicitor and client think fit, either by a gross sum, or 
 by commission or per-centage, or by salary or otherwise. 
 The agreement must be in writing, signed by the person 
 to be bound thereby or by his agent in that behalf {m) . 
 
 Contracts The above enactments are perhaps the most imi^ortant 
 
 ■with lawful , , , . . ^ 1.1 , , ^ • . , 1 
 
 objects. statutory provisions by which contracts may be vitiated. 
 
 Contracts whose objects are lawful are endlessly diversi- 
 fied, and many of them are regulated by laws which it is 
 not within the scope of the present work to enumerate. 
 For the breach of any such contract pecuniary damages 
 were, as we have seen {n), the sovereign remedy pre- 
 scribed by law; though equity not unfrequently ad- 
 ministered more appropriate specifics. And now both 
 
 iff) Stat. 36 & 37 Vict. c. 66, (k) Stat. 44 & 45 Vict. c. 44, 
 
 8. 87. 8. 9. 
 
 (/<) Stat. 44 & 45 Vict. c. 44, (/) Sect. 8, sub-s. 1. 
 
 8. 2. (;«) Sect. 8, sub-s. 2. 
 
 (t) Stat. 33 & 34 Vict. c. 28. («) Ante, pp. 97, 107.
 
 OF COM TRACTS. 
 
 law and equity are administered in the same action. 
 The person to whom money had become due, whether 
 from any injury received, or from any contract broken, 
 or from a contract to pay money itself, formerly stood 
 in a situation more or loss advantageous with regard to 
 his remedies for recovering the money, according to the 
 nature of the debt which had thus become due to him. Debts. 
 For by the law of England all creditors were formerly 
 not allowed equal rights, but were preferred the one to 
 the other, partly according to accidental circumstances, 
 and partly according to the degree of diligence and 
 precaution which each might have used. These old 
 distinctions have, however, as we shall see, been gradu- 
 ally abolished. The subject of debt is of sufficient 
 importance to form a separate chapter. 
 
 145 
 
 w.r.p.
 
 146 
 
 OF CHOSES IN ACTION. 
 
 CHAPTER III. 
 
 Debt of 
 record. 
 
 Superior 
 Courts of 
 record. 
 
 OF DEBTS. 
 
 Debts, by the law of England, are divided into different 
 classes, which formerly conferred on the creditor diffe- 
 rent degrees of security for re-payment. But most of 
 these differences have gradually been removed, as we 
 shall presently see. The class which conferred the 
 highest privileges is that of debts of record, which class 
 will accordingly first claim our attention. 
 
 A debt of record is a debt due by the evidence of a 
 Court of record {a). Every Court, by having power 
 given to it to fine and imprison, is thereby made a Court 
 of record (6). Such Courts were fonnerly either 
 supreme, superior or inferior. The supreme Court was 
 the Parliament. The superior Courts of record were 
 the House of Lords, the Court of Chancery, and the 
 Courts of Queen's Bench, Common Pleas and Exchequer, 
 w^hich were the more principal Courts. The Courts of 
 the Counties Palatine of Lancaster and Durham were 
 also superior Courts of record (<?). The London Court 
 of Bankruptcy was also a principal Court of record {d). 
 The Court of Probate was also a Court of record {e) ; 
 and so were the Court for Divorce and Matrimonial 
 Causes (/) and the High Court of Admiralty (g). But 
 now, as we have seen (h), the Courts of Chancery, 
 Queen's Bench, Common Pleas and Exchequer, and 
 
 (a) 2 Black. Comm. 465. 
 {b) Bac. Abr. tit. Courts (D) 2. 
 (c) JbUl. (D) I. 
 
 {d) Stat. 32 & 33 Vict. c. 71, 
 B. 65. 
 
 (r) Stat. 20 & 21 Vict. c. 77, 
 
 8.23. 
 
 (/) Stat. 20 & 21 Vict. c. 85, 
 s. 6. 
 
 iff) Stat. 24 Viet. c. 10, s. 14. 
 
 (//) Stat. 3G & 37 Vict. c. 66, 
 s. 3, nufe, p. 99.
 
 OF DEBTS. 147 
 
 the Courts of Probate, Divorce and Admiralty, are all 
 merged in one Coui't, called Her Majesty's Supreme 
 Coui't of Judicature ; and the Supreme Court consists 
 of two permanent divisions called Her Majesty's Higli 
 Court of Justice, and Her Majesty's Court of Ap- 
 peal (/). The High Court of Justice is a superior Hij^h Court 
 Court of record (/.•) ; and it has had transferred to it ^^^Hf^ '" 
 the jurisdiction of all the above-mentioned Courts, and Court of 
 also of the Court of Common Pleas at Lancaster, and 
 the Court of Pleas at Durham (/). The London Court London Court 
 of Bankruptcy was united and consolidated with the ry^^j 
 Supreme Court of Judicature, and its jurisdiction trans- 
 ferred to the High Court of Justice by the Bankruptcy 
 Act, 1883 {>i/). The Court of Appeal is also a superior Court of 
 Court of record (y/). The appellate jui'isdiction of the ^pedorCourt 
 House of Lords is now governed by the Appellate Juris- of record, 
 diction Act, 1876 (o). The inferior Courts of record Inferior 
 may be said, generally, to consist of the numerous Courts, record. " 
 established throughout the country under the Acts for 
 the more easy recovery of small debts and demands in County 
 England, now called the County Courts Acts {p). ^°'"'*^- 
 
 Before the year 1884 there was one creditor whose Crown debts, 
 claims were paramount to all others, namely, the crown. 
 In order to enjoy this priority, the crown debt was 
 formerly required to be a debt of record, or a debt by 
 specialty, that is, secured by deed (ry) ; though if the 
 
 (0 Stat. 36&37Vict. C.G6, fl. 4. s. 3; 12 & 13 Vict. c. 101 ; 13 & 14 
 
 (/:) Sect. 16. Vict. c. 61 ; 15 & 16 Vict. c. 54 ; 
 
 (0 Ibid. 17 & 18 Vict. c. 16 ; 19 & 20 Vict. 
 
 (w) Stat. 46 & 47 Vict. c. 52, c. 108; 21 & 22 Vict. c. 74; 22 
 
 ss. 93, 169, repealing Stat. 38 & & 23 Vict. c. 57 ; 28 & 29 Vict. 
 
 39 Vict. 0. 77, 8. 9, and reviving c. 99 ; 29 & 30 Vict. c. 14 ; 30 & 
 
 the provisions of Stat. 36 & 37 31 Vict. c. 142 ; 31 & 32 Vict. 
 
 Vict. 0. 66, ss. 3, 16, 18, as to the c. 71 ; 32 & 33 Vict. c. 51 ; 38 & 
 
 London Court of Bankruptcy. 39 Vict. c. 50. 
 
 («) Stat.36&37Vict.c.66,s. 18. (q) WilHams on Executors, pt. 
 
 (o) Stat. 39 & 40 Vict. c. 59. 3, bk. 2, ch. 2, e. 1. 
 
 {p) Stats. 9 & 10 Vict. c. 95, 
 
 l2
 
 148 OF CHOSES IN ACTION. 
 
 debt were by simple contract without sucb security, it 
 would have had preference over the other simple con- 
 tract creditors of the debtor, and, as some say, even over 
 other creditors by specialty (r). But the distinction, 
 which formerly existed between specialty and simple 
 contract debts, was practically abolished as from the 
 1st of January, 1870, except in the case of the limita- 
 tion of actions (.s). It seems, therefore, that after that 
 date a simple contract debt to the crown would have 
 prevailed over a specialty debt due to a private person. 
 But the priority of crown debts was in effect abolished 
 by the Bankruptcy Act, 1883, as from the 1st of January, 
 1884 {f). The lien 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 (^<). 
 
 Judgment Of ^11 debts which one subject may owe to another, 
 
 debt. ^j^a^^ which formerly conferred the most important re- 
 
 medy is di judgment debt, or a debt which is due by the 
 judgment of a Court of record. As such a debt is due 
 by the evidence of a Court of record, it is of course a 
 debt of record. Such a debt may, however, be incurred 
 without any actual exercise of judgment on the part of 
 the Court. For, strange as it may appear, a judgment 
 against a defendant in an adverse suit, though the most 
 obvious, was formerly not the most usual method of 
 incurring a judgment debt. Such a debt might have 
 been incurred by the voluntary default of tlie defendant 
 in making no reply to the action, which was called nihil 
 dicit, or by his failing to instruct his attorney, whose 
 statement of that circumstance was called non sum 
 
 (>•) Bae. Abr. tit. Executors (sub-s. 5, 6) ; Stat. 38 & 39 Vict. 
 
 (L) 2. c. 77, s. 10; and the Chapter on 
 
 («) See Stats. 32 & 33 Vict. c. Banki-uptcv, below. 
 46 ; 38 & 39 Vict. c. 77, s. 10. («) Page 92, 13th ed. ; 94, 
 
 (0 Stat. 46 & 47 Vict. c. .52, s. Uth ed. 
 150; see also sects. 3, 40, 125
 
 OF DEHTS. 149 
 
 infonnatus, or by a cognovit actionem, or more shortly 
 cognovit, by which the defendant confessed the action, Cognovit. 
 and suffered judgment to be at once entered up n gainst 
 him(w). Of late years also it has become very usual 
 for the parties to a suit to obtain b}" consent a jmlge's Judgc'sordcr. 
 order, authorizing the plaintiff to enter up judgment 
 against the defendant, or to issue execution against him, 
 either at once and unconditional!}', or more usually at a 
 future time, conditionally on the non-payment of what- 
 ever amount may be agreed on. A judgment obtained 
 on a judge's order for immediate judgment and execu- 
 tion is however the same thing as a judgment by niJiil 
 elicit, or confession (.r) . The method formerly the most 
 frequent of incurring a judgment debt was not however 
 attended with the actual commencement of any adverse 
 action. A warrant of attorney was given by the intended Warrant of 
 debtor, which consisted of an authority from him to ^ttorne}^ 
 certain attorney's to appear for him in Court, and to 
 receive a declaration in an action of debt for the amount 
 of the intended judgment debt, at the suit of the intended 
 creditor, and thereupon 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. Such a warrant 
 of attorney was generally executed as a security for a 
 smaller sum of money, usually one-half of the amount 
 of the judgment debt ; and it Avas accordingly accom- 
 panied by defeazancc, written on the same paper or Dcfcazance. 
 parchment as the warrant of attorney, otherwise the 
 warrant was void (//). This defeazance, as its name 
 imports, defeated the full operation of the warrant of at- 
 torney, by declaring that it was given only as a security 
 for the smaller sum and interest, and that no execution 
 
 {(t) 3 Black. Com. 397 ; Stephen Stats. 3 Geo. IV. c. 39, s. 4 ; 32 & 
 
 on Pleading, 120. 33 Vict. c. C2, s. 2G. Collateral 
 
 (.(•) Bcllx. Bidgood, S C. B. 7G3; securities were required to bo no- 
 
 ^;i(f/nrAV. Di/zys, 4 Ex. Rep. 827. ticed. Morcll \. Bubost, 3 Taunt. 
 
 (y) Reg. Gen. Hil. 1853, e. 27 ; 235.
 
 150 
 
 OF cnOSES IN ACTION. 
 
 Scire facias. 
 
 Warrant of 
 attorney to 
 Becure an 
 annuity. 
 
 Bhould issue ou tlio judgment to be entered up in pur- 
 suance of the warrant of attorney, until default should 
 have been made in payment of such simi and interest 
 at the time agreed on ; but that, in case of default, exe- 
 cution might be issued {a) . The def eazance also formerly 
 contained an agreement that it should not be necessary 
 for the creditor to issue a writ of scire facias, or do any 
 other act for reviving the judgment or keeping the same 
 on foot, although no proceedings should have been taken 
 thereupon for the space of one year. Withoiit such a 
 provision, no execution could be issued after the expira- 
 tion of a twelvemonth from the date of the judgment, 
 without the expense and trouble of a writ of scire facias, 
 calling on the debtor to inform the Court, or show cause, 
 why execution should not be issued {b) . But the Com- 
 mon Law Procedure Act, 1852, provided that during 
 the lives of the parties to a judgment, or those of them 
 during whose lives execution might then issue within a 
 year and a day without a scire facias, and within six 
 years from the recovery of tlie judgment, execution 
 might issue without a revival of the judgment {c) ; and 
 the Eules of the Supreme Court, 1883, provide {d) 
 that, as between the original parties to a judgment, 
 execution may issue at any time within six years from 
 the recovery of the judgment. A warrant of attorney 
 was also sometimes given for entering up judgment 
 for a sum of money, in order to secure the regular pay- 
 ment of an annuity; in which case the def eazance of 
 course expressed that no execution should be issued until 
 
 («) Warrants of attorney to 
 confess judgment for securing 
 any smn or sums of money are, 
 with some exceptions, liable to 
 the same duty (one-eighth per 
 cent, on the money secured) as 
 mortgages for tlie like piirjpose. 
 Stat. 33 & 34 Vict. c. 97. See 
 Principles of the Law of Real 
 Property, 423, n., 13th ed. ; 443, 
 n., 14th ed. 
 
 (h) Stat. Westm. the Second, 
 13 Edw. I. c. 45. 
 
 {c) Stat. 15 & 16 Vict. c. 76, 
 s. 128, repealed by stat. 46 & 47 
 Vict. 0. 49, saving the Jurisdic- 
 tion thereby established, and re- 
 serving power to make rules of 
 court as to the matters contained 
 therein. 
 
 {d) Ord. XLII. r. 23.
 
 OF UEHTS. X5l 
 
 default should have been made for so many days in 
 some payment of tlie annuity, but that, in case of such 
 default, execution might be issued from time to time (c) . 
 
 A warrant of attorney was not required to be under Execution 
 seal (/), though it generally was so. In order to guard tbn of war- 
 against any imposition in procuring debtors to execute ^ants of 
 
 . p X. V ^ • -C il =ittomoy and 
 
 warrants oi attorney or cognorns m ignorance oi the cognovit, 
 effect of such instruments, it is provided {(j) that a war- 
 rant of attorney to confess judgment in any personal 
 action, or cognovit actionem, given by any person, shall 
 not be of any force, unless there is present some attorney 
 of one of the superior Courts on behalf of such person, 
 expressly named by him and attending at his request, 
 to inform him of the nature and effect of such warrant 
 or cognovit, before the same is executed ; which attorney 
 shall subscribe his name as a witness to the due execu- 
 tion thereof, and thereby declare himself to be attorney 
 for the person executing the same, and state that he 
 subscribes as such attorney. And a warrant of attorney 
 or cognovit not executed in manner aforesaid, shall not 
 be rendered valid by proof that the person executing 
 the same did in fact understand the nature and effect 
 thereof, or was fully informed of the same (//). Every 
 acknowledgment of satisfaction of a judgment was also 
 required to be attested in a similar manner (/). Since 
 the Acts for registering writs of execution (/•), warrants 
 of attorney have become almost obsolete. 
 
 Not only Avas there a risk of debtors being imposed 
 upon, in being prevailed on to execute warrants of 
 attorney, but creditors also were formerly liable to bo 
 
 (f) See Cuthbcrt v. Dobbin, 1 c. 110, s. 10, repealed by Stat. 32 
 
 C. B. 278. & 33 Vict. c. 83; FotterY. Xichol- 
 
 (f) Kinncrslcy v. Mhssch, 5 «oh, 8 Mee. & AYels. 49-i; £mw(^ 
 
 Taunt. 261. v. Topphton, o Q..'B. \%l; Focock 
 
 / N ^7 j^ *m 1- oo T7- i /-o V. rickcriuq, 18 Q. B. 789. 
 
 ig) Stat. 32 & 33 Vict. c. 62, •'' ^ 
 
 s. 24, re-enacting Stat. 1 & 2 Vict. (0 I^cg. Gen. Hil. 18o3, s. 80. 
 
 c. 110, s. 9, repealed by Stat. 32 {k) Stats. 23 & 24 Vict. c. 38 ; 
 
 & 33 Vict. 0. 83. 27 & 28 Vict. c. 112. See Prin- 
 
 (A) Stat. 32 & 33 Vict. c. 62, ciples of the Law of Real Pro- 
 
 s. 25, re-enacting Stat. 1 & 2 Vict. perty, p. 90, 13th ed. ; 92, 14th ed.
 
 152 
 
 OF CHOSE8 IN ACTION. 
 
 Provision for 
 filing war- 
 rants of 
 attorney, 
 cognoviss, 
 and judg'e's 
 orders -within 
 twenty-one 
 days. 
 
 defrauded by their debtors giving secret warrants of 
 attorney, cognovits, or judge's orders, to some favoured 
 creditors, to the prejudice of the others. In order to 
 obviate this inconvenience, provision has been made by 
 modern Acts of Parliament for the filing, in the office 
 of the Queen's Bench Division of the High Court, of all 
 warrants of attorney, with the defeazances thereto, and 
 of all cognovits, and of all such judge's orders as before 
 mentioned, or of copies thereof, within twenty-one 
 days after their execution, otherwise the same shall be 
 deemed fraudulent and shall be void (/). And a list 
 of such warrants of attorney, cognovits and judge's 
 orders (in), and also an index containing the names, 
 additions and descriptions of the persons giving the 
 same (n), is directed to be kept by the ofiicer of the 
 Queen's Bench Division, open to public inspection and 
 search on payment of a small fee. The office of the 
 Queen's Bench Division is now amalgamated with the 
 Central Office of the Supreme Court of Judicature (o) . 
 
 A judgment 
 debt carries 
 interest. 
 
 Judgment 
 debts for- 
 merly entitled 
 to preference 
 in adminis- 
 tration ; 
 
 but must bo 
 registered. 
 
 Every judgment debt carries interest at the rate of 
 41. 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 {p). On the death of the debtor, his judg- 
 ment debts are required to be paid in full by his execu- 
 tors or administrators out of his personal estate before 
 any of his debts on bond or by simple contract [q) ; 
 but, by a statute of the year 1860, in order to secure 
 this preference, the judgment must be registered or 
 re-registered within five years before the death of the 
 
 [l) Stats. 3 Geo. IV. c. 39, ss. 1, 
 3; 32 & 33 Vict. c. 62, ss. 26, 27, 
 28. The twenty- one days are 
 reckoned exclusively of the day 
 of execution ; Williams v. Bur- 
 gess, 12 Adol. & Ell. 635. 
 
 (to) Stat. 3 Geo. IV. c. 39, s. 5. 
 
 \n) Stats. 6 & 7 Vict. c. 66 ; 
 32 & 33 Vict. c. 62, s. 28. 
 
 (o) Stat. 42 & 43 Vict. c. 78, s. 5. 
 
 (ij) Stat. 1 & 2 Vict. c. 110, 
 s. 17. See Rules of the Supreme 
 Court, 1883, Ord. XLII. r. 16, 
 and Appendix H. No. 1. 
 
 [q) Wentworth's Executors, 
 265 ct scq. 14th ed. ; Williams on 
 Executors, pt. iii. bk. 2, c. 2, s. 2 ; 
 Jierrinr/(onv.Ei(!)is,3Y.ScCo\. 384.
 
 OF J)EHTS. 
 
 153 
 
 testator or intestate, in the same mnnner as was reqnired 
 
 in order to affect lands in the hands of purchasers or 
 
 mortgagees (r) . The decree of a Court of equity was 
 
 equivalent to the judgment of a Court of law («) . 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 {f). 
 
 But, under the Bankruptcy Act, 1883 (?/), the estate of Preference of 
 
 a deceased debtor, whieli is insulHcient to pay all his Ju^ff^ent 
 
 iii.'cn I 1 • p . debts avoidecl 
 
 debts m full, may, at the instance of a creditor, be by admiuis- 
 administered in bankruptcy and distributed according bankruTc 
 to the law of bankruptcy (r). In such a case, no priority 
 will be given to creditors, who have obtained judgment 
 against the deceased debtor. For in bankruptcy a judg- 
 ment debt has no preference over any other debt ; but 
 all debts are paid rateably, with some few exceptions (.r) . 
 
 The remedies of the creditor by judgment of any of Remedies of 
 
 the superior Courts, against the real estate of his debtor, 
 
 {>■) Stat. 2.3 & 2-i Vict. c. 38, 
 88. 3, 4, not retrospective ; Evans 
 V. Williams, 2 Drew. & Smale, 321. 
 See Re Righj, 12 W. R. 32 ; Jen- 
 
 judgmeut 
 creditors. 
 
 nings\. Rigbij, 33 Beav. 198; Va)t 
 Gheluive v. Nerinckx, 21 Ch. D. 
 189 ; Principles of the Law of 
 Real Propertj^ p. 88, 13th ed. ; 
 90, 14th ed. ; Williams's Con- 
 veyancing Statutes, 263. 
 
 (s) Shafio V. Fowe, 3 Lev. 3oo. 
 
 [t) Duplex V. Be Proven, 2 
 Vern. 540. See also Smith v. 
 mcolls, 5 Bing-. N. C. 208. 
 
 (u) Stat. 46 & 47 Vict. c. 52, 
 s. 125. See the chapter on Bank- 
 ruptcy, below. 
 
 (v) By sect. 10 of the Judica- 
 ture Act of 1875 (stat. 38 & 39 
 Vict. c. 77), in the administra- 
 tion by the Court of the assets of 
 any person who died on or after 
 the 1st November, 1875, and 
 whose estate may prove to be 
 
 insufficient for the payment in 
 full of his debts and liabilities, 
 the same rules shall prevail and 
 be observed as to the respective 
 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 b:inkruptcy with re- 
 si^cct to the estates of persons 
 adjudged bankrupt. This sec- 
 tion did not affect the priority 
 of judgment debts ; Re Maggi, 
 WinchoHse v. Winehomc, 20 Ch. 
 D. 515. Its principal effect was 
 to abolish the rule in Mason v. 
 Jiogg^ (2 My. & Cr. 413), that in 
 admiuistration a secured creditor 
 might prove for his whole debt 
 Avithout relinquishing his secu- 
 rity ; Zee V. Xutlall, 12 Ch. D. 
 61, 65; Re Hopkins, 18 Ch, D. 
 370. 
 
 (.r) Stat. 46 & 41 
 s. 40. 
 
 Vict.
 
 154 
 
 OF CHOSES IN ACTION. 
 
 Imprisonment 
 by writ of 
 capias adsatis- 
 faciendnm. 
 
 Abolition of 
 imprisonment 
 for debt. 
 
 The Debtors 
 Act, 1869. 
 
 Exceptions, 
 
 are mentioned in the author's Treatise on the Principles 
 of the Law of Eeal Property (//) . The remedies against 
 the choses in possession of the debtor have been referred 
 to in a previous part of the present work (::). The re- 
 medies in respect of the choses in action of the debtor 
 will be hereafter mentioned. In addition to these reme- 
 dies, such a judgment creditor might formerly have 
 imprisoned the person of his debtor by means of the 
 writ of cap/as ad safisfaeioiduin {a) ; but should he have 
 done so, he would have relinquished all right and title 
 to the benefit of any charge or security which he might 
 have obtained by virtue of his judgment (b). If, how- 
 ever, the debt should not have exceeded 20/., the debtor 
 could not have been imprisoned {c) without a previous 
 summons and examination before a commissioner of 
 bankruptcy or a judge of a County Court, who would 
 have ordered the commitment of the debtor only in 
 ease of fraud or other ill behaviour (d) ; and the im- 
 prisonment would not then have operated as any satisr 
 faction of the debt (e). But an Act has now been passed 
 for the abolition of imprisonment for debt and for the 
 punishment at the same time of fraudulent debtors (/). 
 This Act is styled " The Debtors Act, 1869," and the 
 1st of January, 1870, was the date of its commence- 
 ment. It provides, that, with the exceptions after men- 
 tioned, no person shall, after the commencement of the 
 Act, be arrested or imprisoned for making default in 
 payment of a sum of money. The exceptions are : — 
 (1.) Default in payment of a penalty, or sum in the 
 nature of a penalty, other than a penalty in respect of 
 any contract. (2.) Default in payment of any sum re- 
 coverable 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 
 
 (y) P. 85, 13tli ed. ; 87, 14th ed. (r) Stat. 7 & 8 Vict. c. 96, s. 57. 
 
 (z) Ante, p. 81. (d) Stat. 8 & 9 Vict. c. 127 ; 9 
 
 {a) Bac. Abr. tit. Execution & 10 Vict. c. 95, s. 99. 
 
 (C)3. 
 
 {b) Bac. Abr. tit. Execution (D) ; 
 Stat. 1 & 2 Viet. c. 110, s. 16. 
 
 (r) Stat. 8 & 9 Vict. c. 12/ 
 s. 3; 9 & 10 Vict. c. 95, s. 103. 
 (./■) Stat. 32 & 33 Vict. c.-G2.
 
 OF DEBTS. 155 
 
 to pay any sum in his possession or under his control. 
 (4.) Default by an attorney or solicitor in payment 
 of costs when ordered to pay costs for misconduct as 
 such, or in payment of a sum of money when ordered 
 to pay the same in his character of an officer of the 
 Court making the order (^). (5.) Default in pajment 
 for the benefit of creditors of any portion of a salary or 
 other income in respect of the payment of which any 
 Court ha%dng jurisdiction in bankruptcy is authorized to 
 make an order. (6.) Default in payment of sums in 
 respect of the payment of which orders are in that Act 
 authorized to be made. But no person is to be im- 
 prisoned in any case excepted from the operation of that 
 section for a longer period than one year {/i). And by Debtors Act, 
 the Debtors Act, 1878, it is provided that in any case 
 coming within the exceptions numbered (3) and (4) the 
 Court may enquire into the case, and (subject to the 
 provisions contained in section 4) may 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 opera- 
 tion of any such writ, process or order, or for discharge 
 from arrest or imprisonment thereunder (/) . Power is Section 5 of 
 also reserved by section 5 of the Debtors Act, 1869, for ^^^^ 1^869."^^ 
 any Court 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 Com't (J). 
 But this jurisdiction is only to be exercised where it is Proof of 
 proved to the satisfaction of the Court that the person payment. 
 
 iff) Me Hope, L. R., 7 Ch. Ap, 338 ; Bolroydc v. Garnett, 20 Ch. 
 
 523. D. 532. 
 
 (A) Stat. 32 & 33 Vict. c. 62, {j) Stat. 32 & 33 Vict. c. 62, 
 
 8. 4. 8. 5 ; Hermitage v. Kilpin, L. R., 
 
 ii) Stat. 41 & 42 Vict. c. 54; 9 Ex. 205; Evans v. Wills, 1 C. 
 
 see Marris y. Ingram, 13 Ch. D. P. D. 229.
 
 156 
 
 OF CHOSES IN ACTION. 
 
 Order for 
 pajmient by 
 instalments. 
 
 Receiving 
 order in ]ieu 
 of committal. 
 
 making default eitlier has or has had since the date of 
 the order or judgment 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 (/.) . In 
 the case of any Court, other than the superior Courts of 
 law and equity (/), this jurisdiction is subject to certain 
 other restrictions (m). For the purposes of section 5 of 
 the Act, any Court may direct any deht due from any 
 person, in pursuance of any order or judgment of that 
 or any other competent Court, to he paid by instal- 
 ments (n). It is now provided (o) that the jurisdiction 
 and powers of the High Court, under section 5 of tlie 
 Debtors Act, 1869, shall be exercised by bankruptcy 
 registrars of the High Court. And by the Bank- 
 ruptcy Act, 1883 (;;), that, where under section 5 of 
 the Debtors Act, 1869, application is made by a judg- 
 ment creditor to a Court, having bankruptcy jurisdic- 
 tion, 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 the judgment creditor, 
 and on payment by him of the prescribed fee, make 
 a receiving order against the debtor ; and that in such 
 case the judgment debtor shall be deemed to have com- 
 mitted an act of bankruptcy at the time the order is 
 made. A receiving order is the first order made in 
 bankruptcy proceedings {q). Arrest on mesne process 
 is allowed by the Debtors Act, 1869, under certain cir- 
 cumstances, if the debtor is about to quit England (r). 
 Provision is also made by the same Act for the punish- 
 
 {k) Sect. 5 ; see Chard v. Jervis, 
 9 Q. B. D. 178. 
 
 (/) See ante, pp. 99, 146. 
 . {m) Sect. 5; see Stat. 46 & 47 
 Vict. c. 52, ss. 103 (4), 169. 
 
 («) Stat. 32 & 33 Vict. c. 62, 
 B. 5; Dillon Y. Cunni)ighani, L. E-., 
 8 Ex. 23. 
 
 (o) Bankruptcy Rules, 1883, 
 
 No. 265, made under Stat. 46 & 47 
 Vict. c. 52, s. 103. 
 
 [p] Stat. 46 & 47 Vict. c. 52, s. 
 103, sub-s. 5 ; see Bankruptcy 
 Rules, 1883, Nos. 265—270. 
 
 {q) Ibid. ss. 5, 9. 
 
 [r) Stat. 32 & 33 Vict. c. 62, s. 
 6 ; Hume v. Bruuff, L. R., 8 Ex. 
 214.
 
 OF DEBTS. 157 
 
 ment of fraudulent debtors by imprisonment for any- 
 time not exceeding two years with or without hard 
 labour (.s). An Act has recently been passed for ren- Scotch and 
 dering judgments obtained in the superior Courts in I"«'jJ»iJo- 
 England, Scotland, and Ireland effectual in any other 
 part of the United Kingdom (/). 
 
 Judo-ments of the inferior Courts may be removed into Hemoval of 
 the superior Courts by order of any judge of the latter inferior'^ ^ ^ 
 Courts : and immediately on such removal the judgment Courts. 
 has the same force, charge and effect as a judgment 
 of the superior Court ; but it could not formerly have 
 affected any lands, tenements or hereditaments, as to 
 purchasers, mortgagees or creditors, unless registered in 
 the same manner as judgments of the superior Com'ts {/(). 
 A registry is now provided for judgments in the County Rcgi.stiy of 
 Courts for the sum of 10/. and upwards (v). Sinr"*' '" 
 
 Covu'ts. 
 
 In addition to judgment debts, other debts of record Recogni- 
 are rcco(j)iizances when duly enrolled («•), and statutes zaiiccsaLd 
 merchant, statutes staple and recognizances m the 
 nature of statutes staple. The three last are now quite 
 obsolete. A recognizance is an obligation entered into 
 before some Court of record or magistrate duly autho- 
 rized, with condition to do some particular act, as to 
 appear at the assizes, to keep the peace, or to pay a 
 debt {.(). It is payable out of the personal estate of 
 the debtor, in the event of his decease, next after judg- 
 ment debts (//). 13 ut the Bankruptcy Act, 1883 [z), 
 
 [s) Stat. 32 & 33 Vict. c. 62, s. ed. ; "Williams's Conveyancing- 
 
 11 el scq. ; see Stat. 46 & 47 Vict. Statutes, 2G3. 
 
 c. 52, s. 163. (0 Stat.l5&16Vict.c.o4,s.l8. 
 
 {t) Stat. 31 & 32 Vict. c. 54 ; (»•) Glynn v. Thorpe, 1 Barn. & 
 
 Williams's Conveyancing- Sta- AM. 153. 
 
 tutcs, 267. (.r) 2 Bla. Com. 341. 
 
 {ii) Stat. 1 & 2 Vict. c. 110, (//) "Williams on Executors, pt. 
 
 8. 22 ; 18 & 19 Vict. c. 15, s. 7. iii. bk. 2, c. 2, s. 2. 
 
 SeePrinciplesof theLawof Real (r) Stat. 46 & 47 Vict. c. 52, 
 
 Property, p. 88, 13th ed. ; 90, 14th s. 125 ; see ante, p. 153.
 
 158 
 
 OF CHOSES IN ACTION. 
 
 by making tlie estates of deceased debtors distribut- 
 able in bankruptcy, has practically placed both judg- 
 ment debts and recognizances on a level with ordinary 
 debts. 
 
 Specialty- 
 debts. 
 
 Arrears of 
 rent. 
 
 Precedence of 
 specialties 
 binding the 
 heir. 
 
 Priority of 
 specialty 
 debts abo- 
 lished. 
 
 Next in importance to debts of record are sjyecialtij 
 debts, or debts secured by spccicd contract contained in 
 a deed {a). These are of two kinds, — debts by specialty 
 in Avhich 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 precedence of all debts by simple contract (b), with 
 the exception of money owing for arrears of rent, to 
 which the feudal principles of oiu' law gave an import- 
 ance equal to that of debts secured by deed (r). Debts 
 by specialty in which the heirs w^ere bound had, how- 
 ever, a precedence over those in which the heirs w^ere 
 not bound, in case the real estate of the debtor should 
 have been resorted to on his decease {d) ; imless 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 {c) . An Act 
 was, however, passed in the year 1869, to abolish the 
 distinction as to priority of payment which formerly 
 existed between the specialty and simple contract debts 
 
 {(i) 2 Bla. Com. 46o. See ante, 
 p. 153. 
 
 (b) Pbichon^s case, 9 Hep. 88 b. 
 
 (c) Went worth's Executors, 
 284, 14th ed. ; Chnujh v. French, 
 2 Coll. 277. 
 
 of Real Property, p. 81, 13th ed. ; 
 83, 14th ed. ; Richardsonv . Jenkins, 
 1 Drew. 477, 483. 
 
 ((') 2 Jarm. Wills, p. 523, 2nd 
 ed. ; 584, 3rd ed. ; Principles of 
 the Law of Real Property, pp. 82, 
 
 {d) See Principles of the Law 83, 13th ed. ; 84, 86, 14th ed.
 
 OF DEliTS. 159 
 
 of deceased persons (_/'). This act provides that in the 
 administration of the estate of every person Avho sliall 
 die on or after the 1st of January, 1870, no debt or 
 liability of such person shall bo entitled to any priority 
 or preference by reason merely that the same is secured 
 by or arises under a bond, deed or other instrument 
 under seal, or is otherwise made or. constituted a spe- 
 cialty debt ; but all the creditors of such- person, as well 
 specialty as simple contract, shall be treated as standing 
 in equal degree, and be paid accordingly out of the 
 assets of such deceased person, whether such assets are 
 legal or equitable, any statute or other law to the con- 
 trary notwithstanding ; provided that the Act shall not 
 prejudice or affect any lien, charge or other security 
 which any creditor may hold or be entitled to for the 
 payment of his debt. And now, as we have seen {g), 
 the estates of deceased debtors, Avhieh are insufficient to 
 pay all their debts in full, may be administered in 
 bankruptcy and distributed according to the law of 
 banlvruptcy. 
 
 For the sake of the advantage of priority ^^-hich 
 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 cjrenanf, 
 or a bond, cr a contract under seal. By the Convey- 
 ancing and Law of Property Act, 1881 (//), a covenant, 
 and a contract under seal, and a bond or obligation 
 under seal made after the 31st of December, 1881, 
 though not expressed to bind the heirs, operates in law to 
 bind the heirs and real estate, as if heirs were expressed ; 
 unless a contrary intention be declared. The old form of 
 
 (/) Stat. 32 & 33 Vict. c. 46. (y) Stat. 46 & 47 Vict. c. 52, 
 
 The public are iudebted for this s. 125, ante, p. 153. 
 important act to Mr. J. Hinde (/() Stat. 44 & 45 Vict. c. 41 's. 
 
 Palmer, Q.C. 59; see "Williams's Conveyancing 
 
 Statutes, 234.
 
 160 
 
 Covenant. 
 Bond. 
 
 Single bond. 
 
 Bond with 
 condition. 
 
 OF C HOSES IN ACTION. 
 
 a covenant ran thus : "And the said (debtor) doth hereby 
 for himself, his heirs;, executors and administrators, cove- 
 nant with the said [creditor), his executors and adminis- 
 trators," to pay, &.G. A bond was in the following form : 
 " Know all men by these presents, that I (debtor), of (such 
 a plaee), am held and firmly bound to (creditor), of (such a 
 plaee),m the penal sum of 1,000/. of lawful money of Great 
 Britain, to be paid to the said (creditor), or to his certain 
 attorney, executors, administrators, or assigns, for which 
 payment to be well and truly made I bind myself, my 
 heirs, executors and administrators, 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 adminis- 
 trators were bound as well as the heirs. This, however, 
 was not absolutely necessary ; and the covenant or bond 
 would formerly have been equally efPectual if the heirs 
 only had been named in it (i) . 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 
 an}^ covenant, contract under seal, or bond or obligation 
 under seal ; and such instruments are now constantly 
 drawn without naming them (/»■). 
 
 A bond in the form above mentioned, without any 
 addition to it, is called a single bond. Bonds, however, 
 have usually a condition annexed to them, that, on 
 the person bound (called the obligor) doing some speci- 
 fied act (as paying money when the bond is to secure 
 the payment of money), the bond shall be void. The 
 condition of an ordinary money-bond is as follows : 
 " The condition of the above- written bond or obligation 
 is such, that if the above-bounden (debtor), his heirs. 
 
 (i) Co. Litt. 209 a ; Barber v. 
 Fox, 2 Wms. Saund. 136. See 
 Williams's Conveyancing Sta- 
 tutes, 234, 498, note («)■ 
 
 (/.) See Williams's Conveyanc- 
 ing Statutes, 234, 235, 498, 499, 
 501, 502, 529.
 
 OF DEBTS, 101 
 
 executors or administrators, should pay unto the said 
 {creditor), his executors, administrators or assigns, the 
 full sum of 500/. {usual/// lialf the amount named in the 
 2)enalty) of lawful money of Grreat Britain, with interest 
 for the same after the rate of 61. 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 con- 
 ditions of this kind have been long in use. In former 
 times, when the condition was forfeited, the whole 
 penalty was recoverable (7). Equity subsequently in- 
 terfered, 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 certaiu, 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 {_m) . But if Creditor can 
 the arrears of interest should accumulate to such an ^^^covcrno 
 
 more than the 
 
 amount as, together with the principal, to exceed the penalty. 
 penalty of the bond, the creditor can claim no more 
 than the penalty either at law («) or in equity (o). If, Except iu 
 however, there be special circumstances in the creditor's cum'tances 
 
 {I) Litt. s. 340. Bam. k Adol. 40, 
 
 (;«) Stilt. 4 & 5 Anne, c. 16, {») Wild v. Clarlcsoii, 6 T. E. 
 
 88. 12, 13. See 3 Bur. 1373; 2 303. 
 
 Bla. Com. 341 ; Smith v. Boml, (o) Clarke x. Scion, 6 Ves. 411 ; 
 
 10 Bing. 125; S. C. 3 Moo. & JI/if//icsv. ll'i/iinr, 1 My. & Keen, 
 
 Scott, 528 ; James v. Thomas, 5 20. 
 
 W.P.P. M
 
 1(52 
 
 OF ( HOSKS IN ACTION. 
 
 favour, a.s if ho liave a mortgage also for the princif)al 
 and interest {]>), or if the dehtor has heen delaying him 
 by vexatious proceedings (q), equity will then aid him 
 to the full extent of his demand (r). 
 
 Bonds for 
 peirformance 
 of agree- 
 ments. 
 
 Assignment 
 of breaches. 
 
 Control of 
 equity uow 
 abolished. 
 
 Actions. 
 
 Bonds are frequently given, not only for securing the 
 payment of money on a given day, but also with con- 
 ditions 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 relief. 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 
 obligor (s) ; 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 re- 
 mained as a further security for the damages to be sus- 
 tained by any future breach (t). The Supreme Court 
 of Judicature Act, 1873 {u), has now abolished the con- 
 trol which equity in many cases formerly exercised over 
 proceedings at law. All legal proceedings, which were 
 
 (p) Clarke y. I.ord Ab'uujdo)!, 17 
 Ves. 106. 
 
 [q) Grant V. Grant, 3 Sim. 430. 
 
 (r) 6 Ves. 41G. By the Stamp 
 Act (33 & 34 Vict. c. 97), bonds 
 for securing the payment or re- 
 payment of money, or the trans- 
 fer or retransfer of stock, are 
 liable to the same ad valorem duty 
 as mortgages for the like pur- 
 pose. See Principles of the Law 
 of Real Property, p. 423, u., 13th 
 ed. ; 44 3, n., 14th ed. 
 
 (,v) See the judgment of Parke, 
 B., in Grey v. Friar, lo Q. B. 891, 
 910 ; WlteelhoH.ie v. Ladbrooke, 3 
 H. &N. 291. 
 
 (0 Stat. 8 &9WiU. III. e. 11, 
 .s. 8 ; Hardy v. Bern, 5 T. R. 636 ; 
 Willoughhy v. Sicinton, 6 East, 
 550 ; 1 Wms. Saund. 57, n. (1) ; 
 Hurst V. Jenn iiigs, 5 Bar. & Cress. 
 650 ; S. C. 8 Dow. & Ry. 424. 
 
 {ii) Stat. 36 & 37 Vict. e. C6, 
 .s. 24, sub-sect. 5.
 
 OF DEBTS. 163 
 
 formerly called (!cfio)is at law or siiifs in equity, are now 
 called actions (.r), and are coinmenced by writ of sum- 
 mons, indorsed with a statement of the nature of the 
 claim made, or of the relief or remedy required {//). In 
 every action, law and equity are administered con- 
 currently (2). But save as otherwise provided, all former 
 forms and methods of procedm-e, not inconsistent with 
 the Judicature Acts or with any rules of Court, may 
 continue to be used and practised as heretofore (a). 
 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 a bond or 
 covenant may be enforced at any time within t^^'enty 
 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 important Simple con- 
 class of debts in the eye of the law are debts by simple ^'^^ ^' 
 contract, 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 pay- 
 able out of his personal estate, by his executor or ad- 
 ministrator, subsequently to all debts of record or by 
 specialt}', except voluntary bonds, which were paj'able Voluutary 
 after all simple contract debts, but before any of the ^^"'^■'^• 
 legacies (b). But now, as we have seen, all simple con- 
 tract debts will be payable pari passu with debts secm'ed 
 by specialty. Toluntary bonds and covenants under Voluntarv 
 seal will still be i)robably continued in use, inasmuch as i^o^^f^'* ^^'^ 
 every deed imj)orts a consideration [c), and an action at 
 law may consequently be brought upon a voluntary deed 
 which would not lie upon a mere voluntary contract. 
 
 {.v) Rules of the Supreme Com-t, («) Stat. 38 & 39 Vict. 0. 77, 
 
 1883, Ord. I. r. 1. 8. 21. 
 
 ((/) Ord. II. r. 1. (b) Lomasy. Jfrif/ht, 2 My. .fc 
 
 (s) Stat. 36 & 37 Vict. c. 66, Keen, 769 ; TFalson v. Parl,c); 6 
 
 s. 24. Beav. 283. 
 
 (c) A»fe, p. 13."). 
 
 m2
 
 164 
 
 OF CHOSES IN ACTION. 
 
 Bills and 
 notes. 
 
 But in administration voluntary bonds and covenants 
 will still be payable after other debts for valuable con- 
 sideration whether specialty or simple contract. Debts 
 secui*ed by bills of exchange and promissory notes have 
 no preference over the other simple contract debts of 
 the deceased {d). 
 
 Former de- 
 fects in the 
 law of debtor 
 and creditor. 
 
 Thus it will be seen that until recently there were, 
 according to the law of England, five principal kinds of 
 debts, namely, crown debts, judgment debts, specialty 
 debts in which the heirs were bound, specialty debts in 
 which the heirs Avere not bound, and simple contract 
 debts. Each of these classes had a law of its own, and 
 remedies of varying degrees of efficacy. According to 
 natural justice one would suppose that all creditors for 
 valuable consideration should have an equal right to 
 be paid ; or if any difference were allowed, that those 
 w^ho could least afford to lose should be preferred to 
 the others. Our law, however, took precisely the 
 opposite coui'se, and, for reasons which certainly illus- 
 trate the history of England, gave to the crown, repre- 
 senting the public in the aggregate, who can best 
 afford to lose, a decided preference over private creditors, 
 whose loss may be theii* ruin. Again, a debt admitted 
 without dispute gave the creditor far less advantage 
 than a debt which has been contested and decreed to be 
 paid by the judgment of a Court of record. The proper 
 function of a Court of Judicatm-e would seem to be the 
 settlement of disputes. In om' law, however, the judg- 
 ment of the Court was permitted to be made use of, not 
 only to settle contested claims, but also as a better 
 secuiity for money admitted to be due. The reason of 
 this perversion of the proper end of a judgment was the 
 superior advantages possessed by a creditor having a 
 judgment in his favour. So long, however, as the Court 
 
 ('/) Yccmait V. Jlirul.sJirrir, '.] Salk. 161.
 
 OF DERTS. 105 
 
 exercise its legitimate function of deciding on contested 
 claims, there seems to be no reason why a debt esta- • 
 blishcd by the decision of the Court should have any 
 preference over one which has never been disputed. 
 Practically there are but two reasons why payment of 
 a debt is withheld, namely, either because the debtor, 
 though able to pay, doubts his liability, or because he is 
 unable to pay, thoug-li he knows he is liable. In tlio first 
 case an action at law decides the question; but the judg- 
 ment given by the Court in exercise of its proper function 
 is scarcely ever followed by the taking out of execution. 
 The debt being established, the debtor pays it, and the 
 judgment is immediately satisfied. The creditor has 
 the advantage of the decision of the Court, but he has no 
 occasion for any of those extraordinary remedies to which 
 his position as a judgment creditor formerly entitled him. 
 If, however, the debtor is unable to pay, judgment is 
 obtained merely for the sake of its fruit. The creditor 
 endeavours, by suing out an execution, to obtain an 
 advantage over other creditors, who may not have put 
 themselves and the debtor to the same trouble and 
 expense. But inability to pay one debt is presumptive 
 evidence of inability to pay others ; and when a man is 
 unable to pay all his creditors in full, it is time that a 
 distribution should bo made of his property amongst his 
 creditors rateably. The extraordinary privileges con- 
 ferred on a judgment creditor seemed, therefore, in most 
 cases, practically to end in an undue preference of a 
 pressing creditor over others who had as good a right 
 to be paid. With respect to the three last classes of 
 debts, namely, debts by specialty in which the heirs are 
 bound, those in whioli the heirs are not bound, and 
 simple contract debts, the distinctions between them 
 served principally to mark the steps of the struggle by 
 which the rights of creditors were at length obtained. 
 The trophies of a victory so hardly won could scarcely 
 be expected to present a very orderly appearance. The
 
 1G6 OF ClIOSES IN ACTION. 
 
 rights of these creditors accordingly varied with the 
 accident of the death of the debtor, with the proportion 
 which his real estate might have borne to his personalty, 
 and with the circumstance of his having or not having 
 charged his real estate by his will with the payment of 
 his debts ; although he could bring them all to a level 
 by becoming a bankrupt if he pleased. It was surely 
 time that the law of debtor and creditor should be 
 placed upon some more simple and reasonable footing. 
 This was done to a great extent, so far as judgments 
 are concerned, by a provision in the Bankruptcy Act, 
 1861 ((?), by which the seizm-e and sale of the goods 
 of a trader debtor, on an execution for a sum exceeding 
 fifty pounds, was made an act of bankruptcy. The 
 Bankruptcy Act, 1869 (/'), contained a similar provision 
 with respect to executions for sums not less than fifty 
 pounds. But both these statutes have been repealed. 
 And now, by the Banla-uptcy Act, 1883 (>/), any debtor 
 commits an act of bankruptcy, if execution issued against 
 him has been levied b}- seizure and sale of his goods 
 under process in any action in any Court, or in any civil 
 proceeding in the High Court of Justice. The Act which 
 placed specialty and simple contract creditors on the 
 same footing at the debtor's decease (Ji) Avas an important 
 further step in the right direction. So Was the Eccle- 
 siastical Dilapidations Act, 1871 (/), by which claims for 
 dilapidations made by a succeeding incumbent against the 
 personal representatives of his predecessor now rank with 
 other debts. And the provisions of the Bankruptcy Act, 
 1883 (/.■), by which the estates of deceased debtors may 
 be administered in bankruptcy, and will then be distri- 
 
 {e) Stat. 24 & 25 Vict. c. 134, s. 4, siiL-scct. 1 [c) ; see ante, 
 
 s. 73, repealed by stat. 32 & 33 pp. 81—84. 
 Vict, c. 83. [h) Stat. 32 & 33 Vict. c. 46. 
 
 (/) Stat. 32 & 33 Vict. c. 71, (0 Stat. 34 & 35 Vict. c. 43 ; 
 
 s. 6, par. (5), repealed by stat. ante, p. 103. 
 46 & 47 Vict. 0. 52, s. 169. (Z) Stat. 46 & 47 Vict. c. 52, 
 
 {g) Stat. 46 & 47 Vict. c. 52, s. 125 ; ante, p. 153.
 
 OK DKHrs. 16^ 
 
 butable according to the law of bankruptcy, now leave 
 little to be desired. 
 
 The next subject which claims our attention is that Interest on 
 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 (/). In ordinary cases a debtor 
 was allowed to withhold payment of his debt, without 
 being obliged to give to his creditor the poor recom- 
 pense 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 {))i). 
 But in equity interest was more frequently allowed {ii). 
 And now, by an Act of King William the Fourth (o), 
 interest is recoverable on all debts paj-able by virtue of 
 any written instrument, at a certain time, from the time 
 w^hen such debts were payable, or if payable othervi-ise, 
 then from the time when demand of payment shall 
 have 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. 
 
 (0 Stat. 37 Hen. VIII. c. 9. Cooper, 246 ct scq. 
 See a»te, p. 5. (o) Stat. 3 & 4 Will. IV. c. 42, 
 
 ()«) Wiggins v. Sargent, 2 Bam. ss. 28, 29 ; Uyde v. Price, 8 Sim. 
 
 & Cress. 348; S. C. 3 Dow. & 578; Geakev.Ross, C. P., 23 "W. 
 
 "Ry. (S\'i\ Foster Y. Weston, (jliiu^. R. 658; Duncomhe v. Brighton 
 
 709 ; Fage v. Kcivman, 9 Bam. & Club Company, L. E., 10 Q. B. 
 
 Cress. 378. 371 ; see Ward v. Eyre, 15 Ch. 
 
 (m) See Lowndes v. Collins, 17 D. 130 ; iZe Gosmnn, 17 Ch. D. 
 
 Ves. 27 ; 2 Fonb. Eq. 429 ; C. P. 771.
 
 168 
 
 Sureties. 
 
 OF t'HOSES IN ACTION. 
 
 Surety en- 
 titled to 
 creditor's 
 securities. 
 
 The payment of a debt is sometimes secured by a 
 surcti/, who makes himself liable, together with the 
 principal debtor, for the payment. If the surety should 
 pay the debt, he will become the creditor of the prin- 
 cipal .debtor for the amount ; but although the debt paid 
 should have been secau-ed to the original creditor by the 
 bond under seal of the debtor and his surety, the surety, 
 having j)aid the debt, would formerly have become the 
 simple contract creditor only of the principal debtor ; 
 imless he should have taken the precaution to pro- 
 cure from such debtor a counter-bond for his own in- 
 demnity (o). The surety, however, would have been 
 entitled to the benefit of all collateral secmities which 
 the creditor, whom he had repaid, held for the debt {p) ; 
 but he was not to be entitled to the original bond exe- 
 cuted by the debtor, because that was at an end by the 
 very fact of the payment {q). In the words of Lord 
 Brougham (r), 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 an enactment of the present reign 
 every surety who pays a debt is now entitled to have 
 assigned to him every judgment, specialty or other secu- 
 rity which shall be held by the creditor in respect of such 
 debt, whether such judgment, sj^ecialty or other secmity 
 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 in- 
 demnity, tlie name of the creditor, in any action to 
 
 (o) Co2ns y. MidcUcton, Turn. 
 & Euss. 224. 
 
 (ji?) Tories v. Jackson, 19 Ch. D. 
 
 ei5. 
 
 {q) Turn. & Euss. 231 ; I)ou- 
 biggen v. Bourne, 2 Tou. & Coll. 
 
 442 ; Jones v. Davids, 4 Euss. 277 ; 
 Caulfield v. Maguirc, 2 Jones & 
 Lat. 164, 168. 
 
 (/•) Hodgson v. Shaw, 3 My. & 
 Keen, 183, 194.
 
 OF DEBTS. 160 
 
 obtain from the principal debtor indemnification for liis 
 loss ; and the payment made by the surety shall not be 
 pleadable in bar of any action or other proceeding by 
 him (s). If there sliould have been more than one Co-sureties, 
 surety, any one surety, paying the whole debt, is entitled, 
 according to the general principles of justice, to contri- 
 bution from his co-sureties in equal shares, or if they 
 should have been sureties to unequal amounts, then in 
 proportion to the respective amounts to which they have 
 made themselves liable {f). 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 person shall 
 be justly liable (»). If any surety has become insol- 
 vent, the others must contribute rateably to the pay- 
 ment of the w'hole debt {x). But if the surety has j)aid 
 no more than his own proportion of the debt he cannot 
 obtain contribution from an}' of the others (y) ; nor will 
 contribution be allowed when the suretyship of one per- 
 son is a distinct transaction from that of the otliors (z). 
 A surety, however, may be discharged from his liability Discharge of 
 by the conduct of the creditor. As surety he has made ^^^^^y- 
 himself liable only for the payment of a particular debt 
 at a given time, or under certain given circumstances. 
 
 (.s) Stat. 19 & 20 Vict. c. 97, (.r) Peter v. Jiich, 1 Cha. Rep. 
 
 s. 5 ; Lockhart v. Rcillcii, 1 De 34 ; Jlitchman v. Stewart, 3 
 
 Gex & Jones, 464; Forbes v. Drewiy, 271. 
 
 Jackso)!, 19 Ch. D. 615. {>/) Ex parte Giffurd, 6 Ves. 
 
 {t) Deerbuj v. Earl of Winchel- S07; Daviesy. Ifiimphrei/s, G Mec. 
 
 sea, 2 Bos. & Pul. 270, 272, 273 ; & Wels. 153, 168, 169 ; Ex jmrte 
 
 Broivn v. Lee, 6 Barn. & Cress. Snoicdon, 17 Ch. D. 44. 
 
 689 ; S. C. 9 D. & R. 701 ; and {z) Coopc v. Twi/man, T. & 
 
 see Steel v. Blxon, 17 Ch. D. 825 ; Russ. 426 ; Craythorne v. Swin- 
 
 Jte Arccclcchie, 2i Ch.B. 709. hurne, 14 Ves. 160; Pendlehurxj 
 
 (u) Stat. 19 & 20 Vict. c. 97, v. JFal/cer, 4 You. & Coll. 424. 
 8. 5.
 
 iro 
 
 OF CHOSKS IN ACTION. 
 
 If therefore the creditor, by any subsequent arrange- 
 ment with the principal debtor, preclude himself from 
 demanding payment of his debt at the time or under 
 the circumstances (n-iginally agreed on, the surety will 
 be at once discharged from all liability (a). Thus if 
 the creditor bind himself to give further time for pay- 
 ment to the principal debtor (i), or compound with 
 him, without expressly reserving his remedy against 
 the surety (r), the sm-ety will be discharged. But the 
 - acceptance by the creditor from the principal debtor of 
 a new and independent security for the debt will not 
 discharge the surety (r/). Neither will the surety be 
 discharged by the mere neglect of the creditor to enforce 
 paj'ment of the debt from the principal debtor at the 
 time of its becoming due {e) ; nor by the creditor's 
 express agreement to give time to the principal debtor, 
 if such agreement fail in any of the requisites of a bind- 
 ing contract (./). 
 
 Alienation of We now approach the subject of the alienation of 
 debts, to which some reference has already been made. 
 
 (a) Calcert v. London Dock 807 ; Ex parte Carstairs, Buck, 
 
 Company, 2 Keen, 638 ; Heath v. 560 ; Malthij v. Carstairs, 7 Bar. 
 
 Keij, 1 y. ife Jerv. 434 ; Nicholson & Cress. 737; S. C. 1 Man. & Ry. 
 
 V. Revill, 4 Ad. & Ell. 67o, 683 ; 549 ; Thompson v. Lack, 3 C. B. 
 
 Blake v. White, 1 You. & Coll. 540; Ouenx. Jloman, '^HoMse oi 
 
 420 ; Bowser v. Cox, 4 Beav. 879 ; Lords Cases, 997 ; Close v. Close, 
 
 6 Beav. 110; and see Squire v. 4 De Gex, M. & G. 176; Webb 
 
 Whitton, 1 H. of L. Cases, 333 ; v. Hewitt, 3 Kay & John. 438 ; 
 
 Thillips V. Foxall, L. E., 7 Q. B. Boaler v. Mat/or, 19 C. B., N. S 
 
 666 ; Wa7-d v. National Bank of 76. 
 Neiv Zealand, 8 App. Cas. 755. {d) Bell v. Hanks, 3 Man. & 
 
 {b) Sanimiv. Hou-arth,S'M.eviy. Gr. 258. 
 272 ; JEijre v. Bartrop, 3 Madd. {e) Eyre v. Everett, 2 Russ. 
 
 221; Mossy. Hall, 5 Ex. Rep. 46; 381 ; Feel v. Tatlock, 1 B. & P. 
 
 Davies v. Stainhank, 6 De Gex, 419. 
 
 M. & G. 679 ; Bailey v. Edwards, (/) Philpot v. Briant, 4 Bing. 
 
 4 Best & Smith, 761. 717 ; Tucker v. Ldng, 2 Kay & 
 
 (c) Ex parte Giford, 6 -Ves. John. 745.
 
 oi- i)i;i!is. 171 
 
 We have seen that a debt was anciently considered as a 
 mere right to bring an action against the debtor, and as 
 such was incapable of being transferred {(j) . In process 
 of time, however, an assignment of a debt was permitted Power of 
 to take place by means of an authority from the creditor ^^ ^mej'. 
 to his assignee to sue the debtor in the creditor's name. 
 This autliority was usually called a poiver of attorney^ 
 which was not required to be by deed, but might have 
 been by writing unsealed (//), or even by parol (/) ; and 
 when a debt was a legal debt, recoverable only in a 
 Com-t of law, it could not have been effectually assigned 
 without such a power. The assignment of debts by 
 means of powers of attorney was recognized and pro- 
 tected by the Courts of law. Thus iu a case where the 
 original creditor became bankrupt after he had assigned 
 his debt, it was held that an action against the debtor 
 might still be properly brought in the name of such 
 original creditor, by virtue of the power of attorney 
 which he had given to his assignee ; although, if no 
 assignment had been made, the assignees of the creditor 
 under the bankruptcy would have been the proper parties 
 to sue (/.-). So if a power of attorney wore given on an 
 assignment of a debt for a valuable consideration, it was 
 held to bo iiTevocable by the assignor (/). When a 
 debt or demand was equitdhJe only, that is, of a nature 
 to be recoverable only in the Court of Chancery, it 
 might have been assigned without a power of attorney ; 
 for equity would have allowed the assignee to sue in liis 
 ovn\ name. The same privilege was extended by Par- Life and sea 
 liaraent to monies secured by policies of assurance of ^^ ^^^^^' 
 
 {g) Ante, p. 4. & Wels. 743. See Be PotJwnier 
 
 [h) Eou-cll V. 3PIfers, 4 T. R. v. De Mattos, 1 E. B. & E. 461. 
 
 690. (/) Walsh V. Whitcomb, 2 Esp. 
 
 ((■) 7/>ff^/( V. iTrt//, 4 Taunt. 32(). 060; Williams's Conveyancing 
 
 {/.•) Winch V. KceJoj, 1 T. R. Statute.s, 285, 286. 
 
 619 ; rnrnhnm \. Huni, 8 Mee.
 
 172 
 
 OF {•HOS?;S IN ACTION". 
 
 Notice to the 
 debtor. 
 
 lives (///), and also to policies of marine assurance (ii) ; 
 and in a former edition of the present work it was said 
 that it was to be hoped that the same privilege might 
 one day be extended to every other legal debt (o) . This 
 has now been done by the Supreme Court of Judicature 
 Act, 1873, as we have already seen (p). "When a debt 
 is assigned, the title of the assignee is not complete 
 until he has given to the debtor notice of the assign- 
 ment (q) ; for the debtor, if he has had no notice of the 
 assignment, may lawfully pay his debt to the original 
 creditor, and will be effectually discharged by his 
 receipt. 
 
 Bills and 
 notes. 
 
 Bills of exchange and promissory notes are, as we 
 have already seen (>■), exceptions to the rule which re- 
 quired a power of attorney to enable the assignee to sue 
 the debtor for the debt assigned. The custom of mer- 
 chants was in ancient times sufficiently powerful to 
 countervail in this respect the strictness of the common 
 law, and the holder of a bill of exchange was able to 
 sue upon it in his own name. By a statute of Anne (s), 
 promissory notes were made assignable or indorsable 
 over in the same manner as inland bills of exchange 
 might be according to the custom of merchants. 
 
 Involuntary- 
 alienation of 
 debts. 
 
 Debts, being considered as mere rights of action, 
 could not formerly be taken in execution on a judgment 
 obtained against the creditor. But when they are 
 secured by some cheque, bill, note, bond, specialty or 
 other security (f*), the Act for extending the remedies 
 
 (;«) Stat. 30 & 31 Vict. c. 144. 
 
 («) Stat. 31 & 32 Vict. c. 86. 
 
 (o) Page 125, Stb ed. 
 
 {p) Stat. 36 & 37 Vict. c. 66, 
 s. 25, sub-sect. 6, ante, p. 6. 
 
 (q) See post, the chapter on 
 Title. 
 
 {>■) Ante, p. 4. 
 
 (s) Stat. 3 & 4 Anne, c. 9, 
 made perpetual by stat. 7 Anne, 
 c. 25. 
 
 [f) Harrison v. Paynter, 6 Mee. 
 & Wels. 387 ; Wood v. Wood, 4 
 Q. B. 397.
 
 OF DEBTS. 173 
 
 of creditors against the property of debtors {t<) provides 
 that under the A\'rit of Jieri facias {nr) the sheriff may 
 seize not only money and bank notes, but also the 
 securities above mentioned, and may sue upon them in 
 his own name on the arrival of the time of payment ; 
 but the sheriff is not bound to sue, unless indemnified 
 in the manner prescribed by the Act from the costs of 
 the action. And the Court now has jurisdiction to Attachment 
 order that debts owing to a judgment debtor may be 
 attached to answer the judgment. This jurisdiction 
 was conferred by the Common Law Procedure Act, 
 1854, and extended by the Common Law Procedure 
 Act, 1860 {//). The j^rovisions of both these statutes 
 relating to the attachment of debts were substantially 
 reproduced in the rules of Court contained in the 
 schedule to the Supreme Court of Judicatm^e Act, 
 1875 {z). And they are embodied in the Rules of the 
 Supreme Court, 1883, by which this matter is now 
 regulated. By these rules («), when a judgment or order 
 is for the recovery or payment of money, the party 
 entitled to enforce it may apply to the Court or a judge 
 for an order that the debtor liable under such judg- 
 ment or order, or in the case of a corporation that any 
 officer thereof, be orally examined, as to M'hether any 
 and what debts are owing to the debtor {b). And the 
 Coui't or judge may, upon the e.v parte application of 
 any person who has obtained a judgment or order for 
 the recovery or payment of money, either before or 
 after any oral examination of the debtor liable under 
 
 [ii) Stat. 1 & 2 Vict. c. 110, serving' the power of makiug 
 
 8. 12. rules of Court as to the matters 
 
 (j) See ante, p. 81. therein contained. See ante, 
 
 (//) Stats. 17 & 18 Vict. e. 125, p. 98, n. {d). 
 8S. 60, 61 ; 23 & 24 Vict. c. 126, {:) Stat. 38 & 39 Vict. c. 77, 
 
 Bs. 28—31. These enactments Schcd. I., Ord. XLV. 
 ■were repealed by stat. 46 & 47 (a) Ord. XLIII. r. 2. 
 
 Vict. c. 49, saving the jurisdic- {b) See Iicpi(l)lic of Costa Sica v. 
 
 tiou thereby established, and re- StroKsberrj, 16 Ch. D. 8.
 
 174 
 
 OV CJIOSKS IN AC'lION. 
 
 Garnishee. 
 
 Garnishee 
 order. 
 
 Execution 
 
 against 
 
 garnishee. 
 
 Trial of 
 question of 
 garnishee's 
 liability. 
 
 such juJgmeut or order, aud upon affidavit Ly liimself 
 or his solicitor statiug that judgment has heen re- 
 covered, i)r tlio order made, and that it is still un- 
 satisfied, and to what amount, and that any other 
 person is indebted to such debtor and is within the 
 jurif diction, order that all debts owing or accruing {c) 
 from such third person (in the rules called the gar- 
 nishee) to such debtor shall be attached to answer the 
 judgment or order (r/). And the garnishee may be 
 ordered to appear, to show cause why he should not 
 pay to the person who has obtained such judgment or 
 order the debt due from him to such debtor, or so much 
 thereof as maybe sufficient to satisfy the judgment or 
 order (c). The rules provide (_/') that service of an 
 order that debts, due or accruing to a debtor liable 
 under a judgment or order, shall be attached, or notice 
 thereof to the garnishee, in such manner as the Court 
 or judge shall direct, shall bind such debts in his hands. 
 Such an order is commonly called a garnishee order. 
 If the garnishee does not forthwith pay into Court the 
 amount due from him to the debtor, liable imder a 
 judgment or order, or an amount equal to the judg- 
 ment or order, and does not dispute the debt due or 
 claimed to be due from him to such debtor, or if he 
 does not appear upon summons, then the Court or judge 
 may order execution to issue, and it may issue accord- 
 ingly, without any previous writ or process, to levy the 
 amount due from such garnishee, or so much thereof as 
 maybe sufficient to satisfy the judgment or order (^). 
 If the garnishee disputes his liability, the Com-t or 
 judge, instead of making an order that execution shall 
 issue, may order that any issue or question necessary 
 for determining his liability be tried or determined in 
 
 (e) See TFebb v. Stonton, II 
 Q. B. D. 518. 
 
 {(l) Ord. XLV. r. 1. 
 
 ((-) Ibid. 
 
 if) Ord. XLV. r. 2. See stat. 
 46 &47 Vict. c. 52, s. 45. 
 (y) Ord. XLV. r. 3.
 
 OK DKHTS. 
 
 17J 
 
 any manner in which any issue or question in an action 
 may be tried or determined (/'). And whenever in Adverse claim 
 proceedings to obtain an attachment of debts it is charge on, 
 sug'O'ested bv the garnishee tliat the debt sought to be ^^^^ sought 
 
 ^'^ " . to be attached. 
 
 attached belongs to some third person, or that any 
 third person has a lien or charge upon it, the Court or 
 a judge may order such third person to appear, and 
 state the nature and particulars of his claim upon such 
 debt (/). After hearing the allegations of any such 
 third jiorson under such an order for his appearance, 
 and of any other person whom by the same or any 
 subsequent order the Com-t or judge may order to 
 appear, or in case of such third person not appear- 
 ing when ordered, the Court or judge may order 
 execution to issue to levy the amount due from such 
 garnishee, or any issue or question to be tried or deter- 
 mined according to the rules previously stated, and may 
 bar the claim of such third person, or make such other 
 order as such Court or judge shall think fit, upon such 
 terms in all cases with respect to the lien or charge (if 
 any) of such third person, and to costs as the Court or 
 judge shall think just and reasonable (/•). The rules Discharge to 
 provide that payment made by or execution levied upon S^^"^ ^^• 
 the garnishee, under any such proceeding as aforesaid, 
 shall be a valid discharge to him as against the debtor, 
 liable under a judgment or order, to the amount paid 
 or levied, although such proceeding may be set aside, or 
 the judgment or order reversed (/). 
 
 In the event of Ijankruptcy, the assignees of the Bankruptcy, 
 bankrupt were empowered to sue for debts owing to 
 him in their own names for the benefit of his cre- 
 ditors (m). By the Bankruptcy Act, 1883, the property 
 
 (h) Ord. XLV. r. 4. 8. 141, repealing stats. 6 Geo. IV. 
 
 (t) Ord. XLV. r. 5. c. 16, 8. 63, and 1 & 2 Will. IV. 
 
 {k) Ord. XLV. r. 6. c. 56, s. 25 ; and now repealed by 
 
 (0 Ord. XLV. r. 7. • stat. 32 & 33 Vict. c. 83. And 
 
 (>«) Stat. 12 & 13 Vict. c. lOG, see stat. 15 i- 16 Vict. c.T6, s. 142,
 
 17G 
 
 OF CHOSES IN ACTION", 
 
 of a bankrupt vests in the trustee in bankruptcy, as we 
 have seen {n). In that Act, the word " property" in- 
 ckides things in action {o). And the Act also pro- 
 vides {p) that, where any part of the property of a 
 bankrupt consists of things in action, such tilings shall 
 be deemed to have been duly assigned to the trustee ; 
 and that the trustee may sue and be sued by the official 
 
 name of " the trustee of the property of , a 
 
 bankrupt," inserting the name of the bankrupt. The 
 Bankruptcy Act, 1869, contained similar provisions {q). 
 
 Payment of 
 debts. 
 
 Payment of 
 smaller sum 
 no satisfac- 
 tion of larj^er. 
 
 We have now to consider the payment of debts. 
 And, in the first place, the payment of a smaller sum 
 is no satisfaction of a larger one, unless there be some 
 consideration for the relinquishment of the residue (r), 
 such as the payment at an earlier time than the whole 
 is due (.s), or the conciuTcnce of some (t) or all of the 
 other creditors of the debtor in accepting a composi- 
 tion (u). But it seems that the acceptance of a nccjotiahle 
 security for a small amount may be a good satisfaction 
 for a larger debt (.r) ; and the payment of a small sum 
 may be a good satisfaction for an unliquidated demand 
 for large pecuniary damages, on account of the uncer- 
 tainty of such a claim (y) . When a less sum is paid to 
 
 as to the bankruptcy of a plain- 
 tiff in an action at law. 
 
 («) Stat. 46 & 47 Vict. c. 52, 
 83. 20, 21, 44, 54, ante, p. 85. 
 
 (o) Sect. 168. 
 
 [p) Sects. 50 (6), 83. 
 
 {q) Stat. 32 & 33 Vict. c. 71, 
 6S. 4, 15, 17, 22, 83, par. (7) ; re- 
 pealed by Stat. 46 & 47 Vict. c. 
 62, s. 169. 
 
 (r) Cumber v. Wane, 1 Strange, 
 425; S. C. 1 Smith's Leading 
 Cases, 146 ; Fitch v. Sutton, 5 
 East, 230 ; Beer v. Foakes, 1 1 
 Q. B. D. 221. 
 
 (.s) Co. Litt. 212 b. 
 
 [t) Norman v. Thonqjson, 4 Ex. 
 Rep. 755. 
 
 (?<) Eeay v. Richardson, 2 Cro. 
 Mee. & Rose. 422; PJlegcr v. 
 Browne, 28 Beav. 391. 
 
 (.r) Slhree v. Tripp, 15 Mee. & 
 Wels. 23 ; Goddard t. O'Brien, 
 9 Q. B. D. 37, a case of the ac- 
 ceptance, in satisfaction of a debt, 
 of a cheque for a sum less than 
 the amount of the debt. See 
 ante, pp. 128, 130. 
 
 [jj) Wilkinson v. Byers, 1 Ad. 
 k Ell. 106.
 
 OF DEBTS. 
 
 177 
 
 the creditor than the whole amount of his demands, it Appropria- 
 is competent to tlio debtor to make the payment in satis- ^^^^ ^^^" 
 faction of any demand he may please, and the creditor 
 must appropriate the payment accordingly {z) ; but if 
 the payment be made generallj", without any express 
 appropriation, the creditor may elect, at the time of 
 pajmient {a), or within a reasonable time after (6), to 
 appropriate the money to whichever demand he may 
 please. And if no election as to the appropriation of • 
 the payment should be made on either side, the law will, 
 in ordinary cases of current accounts (c), presume that 
 the first item on the debit side is discharged or reduced 
 by the first payment entered on the credit side, and so 
 on in the order of time (d). When the debt carries 
 interest, the payment is considered to be applied in the 
 first place in discharge of the interest then due, and the 
 surplus, if any, in discharge pro tanto of the principal. 
 For no creditor would apply any payment to the dis- 
 charge of part of the principal, which carries interest, 
 instead of to the discharge of interest for which, when 
 due, no further interest is payable {<'). 
 
 (s) Shaw V. I'icton, 4 Bam. & 
 Cress. 715 ; Nash v. Hodgson, Ld. 
 C. & Lds. Justices, 1 Jur., N. S. 
 946 ; 6 De Gex, M. & G. 474. 
 
 [a) Bevaijnes v. Noble, Clayton'' s 
 case, 1 Mer. 529, 585, 604 et scq. 
 
 {b) Simpson v. Ingham, 2 Barn. 
 & Cress. 65. 
 
 (c) See Re Shernj, London ^• 
 County Bank v. Teny, 25 Ch. D. 
 
 G92, 702. 
 
 [d) 1 Meriv. 608 ; fFUHams v. 
 Rawlinson, 10 J. B. Moore, 362 ; 
 Merriman v. Ward, 1 John. & H. 
 371 ; Kinnaird y. Webster, 10 Ch. 
 D. 139. As to trust monies, see 
 In re HaUeifs estate, 13 Ch. D. 
 696. 
 
 ((?) Bower v. Marris, 1 Cr. & 
 Phi. 351, 355. 
 
 W.P.P.
 
 178 
 
 OF CHOSES IN ACTION. 
 
 CHAPTEE lY. 
 
 OF LIQUIDATION BY ARRANGP:MENT AND COMPOSITION. 
 
 Composition 
 with credi- 
 tors. 
 
 Letter of 
 licence. 
 
 Deed of in- 
 spectorship. 
 
 When a person becomes so embarrassed as to be un- 
 able to pay all his debts in full, lie usually endeavours to 
 enter into a composition with bis creditors, prevailing 
 on tbem to accept so much in the pound, and to allow 
 a given time for payment. Since the commencement of 
 the present reign, the law relating to arrangements for 
 composition with creditors has been altered several 
 times, and divers methods of carrying such arrange- 
 ments into effect have been in use and become obsolete. 
 Before the Bankruptcy Act, 18G1 {a), came into opera- 
 tion, when traders only were liable to become bankrupt, 
 if a man made an arrangement with his creditors for 
 the payment of a composition within a specified time, a 
 ktte)- of licence was generally given by the creditors, by 
 which they covenanted not to take any proceedings for 
 their debts in the meantime ; and this licence was 
 frequently embodied in a deed of insjjectors/dp, by which 
 certain inspectors were appointed to watch the winding- 
 up of the debtor's affairs on behalf of the creditors. At 
 that time there was no occasion for such a deed to be 
 registered. The Bankruptcy Act, 1861 (b), provided, 
 that every deed, instrument or agreement whatsoever, 
 by which a debtor, not being a bankrupt, conveyed, or 
 covenanted or agreed to convey his estate and effects, 
 or the principal part thereof, for the benefit of his 
 creditors, or made any arrangement or agreement with 
 
 {a) Stat. 24 & 25 Vict. c. 134. 
 (i) Ibid. s. 194 ; £a; parte 
 At/cinsoii, hi re Broolcshank, 18 
 
 W. R. 598; Law Rep., 9 Eq. 
 736.
 
 OF ARRANGEMENT AND COM POSITION. 17'J 
 
 his creditors, or any person on their behalf, for tlie dis- 
 tribution, inspection, conduct, management or winding- 
 up of his affairs or estate, or the release or discharge of 
 such debtor from his debts or liabilities, should, within 
 twenty-eight days from and after the execution thereof 
 by such debtor, or within such further time as the Court 
 in London should allow (c), be registered in the Coiu't Registration 
 of Bankruptcy; and in default thereof should not be ^^^i^^^*^ • 
 received in evidence. But this Act was repealed in 
 the year 1869 (d). 
 
 In some cases an assignment of the debtor's estate Assignment 
 
 T tv 1 ij_ij_i> 1 1 -to trustees for 
 
 and eiiects was made to trustees tor sale and conversion creditors void 
 into money, to be divided rateably amongst the credi- ^^ ^^^^ °^ 
 tors. As however this is the process adopted by the 
 law in cases of bankruptcy, where it is carried on under 
 judicial sanction, the law considered that such an assign- 
 ment of the whole of the estate of a person in trade 
 was an act of bankruptcy, and as such void, if there 
 were any creditor or creditors who had not concurred 
 in it of sufficient amount to sue out a petition for adju- 
 dication of bankruptcy {e). And when all debtors, 
 whether traders or not, had been made subject to the 
 banki'uptcy laws by the Bankruptcy Act, 1861 (/*), it 
 appears that such an assignment of the whole of the 
 estate of any debtor was an act of bankruptcy {g) . And 
 the Bankruptcy Act, 1869 (h), expressly made the follow- 
 ing act, amongst others, an act of bankruptcy, viz., that 
 
 (c) Wishart v. Fowler, 4 Best c& & J. 289. Sec post, the chapter 
 
 Smith, 074. on Bankruptcy. 
 
 ((/) By Stat. 32 & 3:5 Vict. c. (/) Stat. 21 & 2o Vict. c. 131, 
 
 83. s. 70. 
 
 [c) Tappouloi V. Burgess, 4 {g) See Ex parte t^trai/. Law 
 
 East, 230; Button y. Morrison, \1 Rep., 2 Ch. 374, 378; Mellish, 
 
 Ves. 193, 199; Toucll v. Llogd, 2 L. J., lie Wood, Law Rep., 7 
 
 You. & Jerv. 372 ; Ex parte rhil- Ch. 302, 306. 
 
 pott. Court of Review, 10 Jur. {h) Stat. 32 & 33 Vict. c. 71, 
 
 717 ; Ex parte Alaop, 1 De G., F. s. G, par. (1). 
 
 N 2
 
 180 
 
 OF CnOSES IN Af'TIOX. 
 
 Exception 
 
 formerly 
 
 made. 
 
 Deed to be 
 registered. 
 
 tlie debtor has, in England or elsewhere, made a con- 
 veyance or assignment of his property to a trustee or 
 trustees for the benefit of his creditors generally. The 
 Bankruptcy Act, 1883, by which the law of bankruptcy 
 is now regulated, contains a similar provision (i). An 
 exception to this rule was formerly made, if a petition 
 for adjudication of bankruptcy did not issue within 
 three calendar months from the execution of such a 
 deed by any trader, provided the deed were executed 
 by every trustee within fifteen days after the execu- 
 tion thereof by the trader, and that the execution by 
 such trader and by every such trustee were attested 
 by an attorney or solicitor ; and provided that notice 
 were given within one month after the execution 
 thereof by such trader in the London Grazette and 
 two London daily newspapers, if he resided in London 
 or within forty miles of it ; or in the London Grazette, 
 one Loudon daily newspaper, and one provincial news- 
 paper published near to such trader's residence, if he 
 did not reside within forty miles of London ; and 
 such notice was required to contain the date and exe- 
 cution of the deed, and the name and place of abode 
 respectively of every such trustee and of such attorney 
 or solicitor {k). By the Bankruptcy Act, 1861, every 
 such deed was required to be registered, as we have 
 seen, in the Court of Bankruptcy (/). But all these 
 enactments were repealed in the year 1869 (;;?), and no 
 exception is now admitted to the rule, that every con- 
 veyance of a debtor's property to trustees for his credi- 
 tors generally is an act of bankruptcy {n). 
 
 Statutory 
 provisions to 
 
 Provision has been made by statute several times 
 
 (i) Stat. 46 & 47 Vict. c. 52, 
 s. 4. 
 
 (A) Stat. 12 & 13 Vict. c. 106, 
 s. 68, repealing stat. 6 Geo. IV. 
 c. 16, s. 4. 
 
 (/) Stat. 24 & 25 Vict. c. 134, 
 s. 194, ante, p. 179. 
 
 (m) Stat. 32 & 33 Vict. c. 83. 
 
 [n) Ux parte Dirou, W. N., 
 1884, p. 115.
 
 OF ARKANGEMENT AND COMPOSITION. 181 
 
 during the present reign for rendering arrangements make ar- 
 for composition or liquidation, made between a debtor Hndhi^Tn^ll 
 and a majority of his creditors in number and value, creditors, 
 binding on all his creditors. An Act for facilitating 
 arrangements between debtors and creditors was passed 
 in the year 184-4 (o), but applied only to such debtors 
 as were not traders within the bankruptcy laws. The Arrange - 
 Bankrupt Law Consolidation Act, 1849, contained deed, 
 provisions by which deeds of arrangement between a 
 trader and his creditors, signed by six- sevenths in 
 number and value of those creditors whose debts 
 amounted to ten pounds and upwards, were binding on 
 all the creditors {])). These provisions were repealed 
 by the Bankruptcy Act, 1861 (q), which substituted for 
 them other enactments, which applied to all debtors, 
 whether traders or not. By the Act of 1861, every 
 deed or instrument between a debtor and his creditors, 
 relating to his debts or liabilities, and his release there- 
 from, or the distribution, inspection, management and 
 winding-up of his estate, or any of such matters, was 
 rendered binding on all the creditors of such debtor, 
 provided that the conditions specified in the Act were 
 observed. The principal conditions required were that 
 a majority in number, representing three-fourths in 
 value, of creditors, whose debts respectively amounted 
 to ten pounds and upwards, should in writing assent to 
 or approve of such deed or instrument ; that, within 
 twenty-eight days from the execution of such deed or 
 instrument by the debtor, the same should be left (duly 
 stamped) at the office of the Chief Eegistrar, for the 
 purpose of being registered ; and that, immediately on 
 the execution thereof by the debtor, possession of all 
 the property comprised therein, of which the debtor 
 could give or order possession, should be given to the 
 
 (o) Stat. 7 & 8 Vict. c. 70. (rj) Stat. 24 & 2o Vict. c. 134, 
 
 Ip) Stat. 12 & 13 Vict. c. 106, s. 129. 
 8. 224.
 
 182 OF (.iiosKs IN A( riox. 
 
 trustees (/•). Ivegistration was required by a provision 
 of the Act, which has been abeady quoted (.s). These 
 provisions of the Bankruptcy Act, 1861, were amended 
 in various particulars by the Bankruptcy Amendment 
 Act, 18G8 (/). But both these Acts were repealed by 
 the Bankruptcy Kepeal and Insolvent Court Act, 
 1869 («). 
 
 The statutory The statutory form of conveyance for the benefit of 
 vTyance d'S' Creditors, provided by the Bankruptcy Act, 1861, con- 
 not release tained no release of the debtor by his creditors from 
 their debts, and consequently could not be pleaded by 
 the debtor in bar to an action by a creditor for his 
 debt (.t). If, however, a release by the creditors had 
 been inserted in the deed, or were the necessary effect 
 of its provisions, it was pleadable in bar to an action 
 by a non-assenting creditor {y). All the creditors of 
 the debtor, and not merely those who executed the 
 deed, ought to have been equally benefited by its pro- 
 visions (;:) ; and the deed must not have contained any 
 unreasonable stipulation, by which the non-assenting 
 creditors might have been prejudiced [a). In estimating 
 
 (/■) 24 & 25 Vict. c. 134, s. 192. 32 L. J., Bank. 37 ; Dewhirst v. 
 
 (s) Ante, pp. 178, 179. Kershaw, 1 H. & C. 726; Ilderton 
 
 (/) Stat. 31 & 32 Vict, c. 104. v. Castrique, 14 C. B., N. S. 99 ; 
 
 (m) Stat. 32 & 33 Vict. c. 83. Ex parte CocJcburn, re Smith, L. 
 
 [x) Eyre v. Archer, 16 C. B., C, 12 W. E. 184, 673; 10 Jur., 
 
 N. S. 638 ; Jones v. Morris, Q. B., N. S. 573 ; Benham v. Broadhitrst, 
 
 11 Jiir., N. S. 812; Clarke v. 3 H. & C. 472; Chesterfield and 
 
 Williams, Exch. Cham. 13 W. E. Midland Silkstone Colliery Com- 
 
 923 ; 34 L. J., Ex. 189. pany. Limited v. Hawkins, 3 H. 
 
 {y) Clapham v. Atkinson, 4 B. & 0. 677. 
 & S. 722 ; Whitehead v. Torter, 5 (a) Woods v. Foote, 1 H. & C. 
 
 B. & S. 193 ; Garrod v, Simpson, 841 ; Jnglehach v. NichoUs, 14 C. 
 
 Ex., 11 Jur., N. S. 227 ; Wills v. B., N. S. 85 ; Eillby v. Wright, 
 
 Bacon, 5 B. & S. 19G ; Dewhirst 18 C. B., N. S. 272 ; Nicholson v. 
 
 V. Jones, 3 H. & C. 60. Fotts, Exch. Cham., 12 W. R. 
 
 [z) Walter v. Adcock, 7 H. & 440. 
 N. 541 ; Ex parte Godden, L. J.,
 
 Of ARUANGEMENT AM) COMl'OSl TIOX. 188 
 
 the requisite majority, secured as well as unsecured 
 creditors were required to be taken into account (/j). 
 But this was altered by the Bankruptcy Amendment 
 Act, 1868 (e), which required that the amount duo to 
 each secured creditor, after deducting the value of his 
 securities on the debtor's property, should alone be 
 reckoned. And the deed of composition was not re- 
 quired to pro\'ide for the distribution of the whole of 
 the debtor's estate amongst his creditors {d) as was re- 
 quired by the corresponding section of the Act of 
 1849 {e). 
 
 In the year 1869 all the bankruptcy laws then in Bankraptcy 
 force were repealed (/) ; and the whole law relating to ^^^' ^^*^^" 
 bankruptcy was embodied in the Bankruptcy Act, 
 1869 (f/). That Act contained regulations for effecting 
 the liquidation hij arrangement of the affairs of a debtor, 
 mthout any proceedings in bankruptcy ; and also pro- 
 vided a new method of securing the acceptance of a 
 composition, in satisfaction of creditors' claims. The 
 Act is now repealed and superseded by the Bankruptcy 
 Act, 1883 (/V). But the provisions of the Act of 1869, 
 with respect to liquidation by arrangement and compo- 
 sition, are here inserted ; as some knowledge of them 
 will be necessary for some time to come. By the 125th Liquidation 
 section of this Act- mU'T""^" 
 
 (1.) A debtor unable to pay his debts might summon 
 
 {b) Kbuj V. llcHdaU, 14 C. B., {e) Tetlcij v. Tmjlor, 1 E. & B. 
 
 N. S. 721 ; Ex parte Godden, 1 Do 521 ; Brew v. CoUins, 6 Ex. Rep. 
 
 Gex, J. & S. 260 ; Turquand v. 670 ; March v. IFtiruick, 1 H. & 
 
 Moss, 17 C. B., N. S. 15. N. loS ; Macnaught v. Russell, 1 
 
 {c) Stat. 31 & 32 Vict. c. 104, H. & N. 611 ; Irving v. Gray, 3 
 
 s. 3. II. & N. 34 ; Bloomer v. Darkcs, 
 
 (d) Ee Eawlings, L. J., 1 De 2 C. B., N. S. 165 ; Cniger v. 
 
 Gex, J. & S. 225 ; 9 Jur., N. S. Lunlop, 7 H. & N. 525. 
 316 ; Ex parte Morgan, L. C, 9 (/) Bystat. 32 & 33 Vict. c. 82. 
 
 Jur., N. S. 559 ; 1 De Gex, J. & (g) Stat. 32 & 33 Vict. c. 71. 
 
 S. 283; Clapham v. Atkinson, 4 {h) Stat. 46 & 47 Vict. c. 52. 
 
 B. & S. 722.
 
 184 OF fllOSKS IN ACTION. 
 
 a general meeting of his creditors, and such 
 meeting might, by a special resolution as de- 
 fined by the Act, declare that the affairs of the 
 debtor were to be liquidated by arrangement 
 and not in bankruptcy, and might at that or 
 some subsequent meeting, held at an interval 
 of not more than a week, appoint a trustee, 
 with or without a committee of inspection. 
 (2.) All the provisions of the Act relating to a first 
 meeting of creditors, and to subsequent meet- 
 ings of creditors in the case of a bankruptcy, 
 including the description of creditors entitled 
 to vote at such meetings, and the debts in 
 respect of which they were entitled to vote, 
 were to apply respectively to the first meeting 
 of creditors, and to subsequent meetings of 
 creditors, for the purposes of this section, 
 subject to the following modifications : 
 
 (a.) That every such meeting should be presided 
 over by such chairman as the meeting might 
 elect ; and 
 
 (b.) That no creditor should be entitled to vote 
 until he had proved by a statutory declaration 
 a debt provable in bankruptcy to be due to 
 him, and the amount of such debt, with any 
 prescribed particulars ; and any person wilfully 
 making a false declaration in relation to such 
 debt was to be guilty of a misdemeanor. 
 (3.) The debtor, unless prevented by sickness or other 
 cause satisfactory to such meeting, was to be 
 present at the meeting at which the special 
 resolution was passed, and was to answer any 
 inquiries made of him, and he, or if he was 
 so prevented from being at such meeting some 
 one on his behalf, was to produce to the meet- 
 ing a statement showing the whole of his assets 
 and debts, and the names and addresses of the 
 creditors to whom his debts were due.
 
 OF AKKANGKISIKN T AND COMPOSITION. 185 
 
 (4.) The special resolution, tog-ether with tlie state- 
 ment of tlio assets and debts of the debtor, and 
 the name of the trustee appointed, and of the 
 members, if any, of the committee of inspec- 
 tion, was to be presented to the registrar, and 
 it was to be his duty to inquire whether such 
 resolution had been passed in manner directed 
 by this section ; but if satisfied that it was so 
 passed, and that a trustee had been appointed 
 with or without a committee of inspection, he 
 was to register the resolution and the state- 
 ment of the assets and debts of the debtor 
 forthwith, and such resolution and statement 
 were to be open for inspection on the pre- 
 scribed conditions, and the liquidation by 
 arrangement was to be deemed to have com- 
 menced as from the date of the appointment 
 of the trustee {i). 
 
 (o.) All such property of the debtor as would, if he 
 had been made bankrupt, have been divisible 
 amongst his creditors, from and after the date 
 of the appointment of a trustee, was to vest in 
 such trustee under a liquidation by arrange- 
 ment, and be divisible amongst the creditors, 
 and all such settlements, conveyances, trans- 
 fers, charges, payments, obligations and pro- 
 ceedings as would have been void against 
 the trustee in the case of a bankruptcy were 
 to be void against the trustee in the case of 
 liquidation by arrangement. 
 
 (6.) The certificate of the registrar in respect of the 
 appointment of any trustee in the case of a 
 
 (j) But the title of the trustee 40 L. J., Bauk. 33, 68 ; Law 
 
 to the debtor's property related Rep., 11 Eq. 604; affirmed Law 
 
 back to the filing of the petition Rep., 6 Ch. 605 ; Ex parte Tod- 
 
 for liquidation by aiTangement ; hunter, in re Norton, Law Rep., 
 
 Ex parte Buignan, in re Bissell, 10 Eq. 425.
 
 186 OF ciiosKs IN A( riox. 
 
 liquidation by arrangement was to be of the 
 same effect as a certificate of the Court to the 
 like effect in the case of a bankruptcy. 
 
 (7.) The trustee under a liquidation was to have the 
 same powers and perform the same duties [k), 
 as a trustee under a bankruptcy, and the pro- 
 perty of the debtor was to be distributed in 
 the same manner as in a bankruptcy ; and 
 with the modification thereinafter mentioned 
 all the provisions of the Act, so far as the 
 same were applicable, were to apply to the 
 case of a liquidation by arrangement in the 
 same manner as if the word " bankrupt " in- 
 cluded a debtor whose affairs were under 
 liquidation, and the word " bankruptcy " 
 included liquidation by arrangement ; and 
 in construing such provisions the appointment 
 of a trustee under a liquidation was, accord- 
 ing to circumstances, to be deemed to be equi- 
 valent to and a substitute for the presentation 
 of a petition in bankruptcy, or the service of 
 such petition or an order of adjudication in 
 bankruptcy. 
 
 (8.) The creditors at their first or any general meet- 
 ing might prescribe the bank into which the 
 trustee was to pay any monies received by 
 him, and the sum which ho might retain in 
 his hands. 
 
 (9.) The provisions of the Act with respect to the 
 close of the bankruptcy, discharge of a bank- 
 rupt, to the release of the trustee, and to the 
 audit of accounts by the comptroller, were not 
 to apply in the case of a debtor whose affairs 
 were under liquidation by arrangement ; but 
 the close of the liquidation might be fixed, 
 
 (A-) Ex2)artc Monkhouse, in re Bale, C, J. B., 1 Ch. D. 287.
 
 OF Al{J{AN(.EMi;.M' AM) ( O.Ml'OsnioN. 187 
 
 and tlio discharge of the debtor and the re- 
 lease of the trustee might bo granted by a 
 special resolution of the creditors in general 
 meeting (/), and the accoimts might be audited 
 in pursuance of such resolution, at sucli time 
 and in such manner and upon such terms and 
 conditions as the creditors might think fit. 
 
 (10.) The trustee was to report to the registrar the 
 discharge of the debtor, and a certificate of 
 such discharge given by the registrar was to 
 have the same effect as an order of discharge 
 given to a bankrupt under the Act. 
 
 (11.) Rules of Court might be made in relation to 
 proceedings on the occasion of liquidation by 
 arrangement in the same manner and to the 
 same extent and of the same authority as in 
 respect of proceedings in bankruptcy. 
 
 (12.) If it appeared to the Court on satisfactory evi- 
 dence that the liquidation by arrangement 
 could not, in consequence of legal difficulties, 
 or of there being no trustee for the time being, 
 or for any sufficient cause {m), proceed without 
 injustice or undue delay to the creditors or 
 to the debtor, the Court miglit adjudge the 
 debtor a bankrupt, and proceedings might be 
 had accordingly (n). 
 
 (13.) Where no committee of inspection was ap- 
 pointed the trustee might act on his own 
 discretion in cases where be would otherwise 
 have been bound to refer to such committee. 
 
 (l) The debtor might be dis- («) Filing a petition for liqui- 
 
 chargetl before the close of the dation by arrangement was an 
 
 \iqmda,iion; £bbsv. BoiduoiSj'La.yv act of banki'uptcy ; Ez parte 
 
 Rep., 10 Ch. 479 ; lie Bcinicti^s JJuignan, in re Bissell, Law 
 
 Trusts, Law Rep., 10 Ch. 190. Rep., 11 Eq. 604 ; affirmed, Law 
 
 (»«) Ex parte Marland, re Ash- Rep., C Ch. Ap. GOo. 
 ton, Law Rep., 20 Eq. 777.
 
 188 
 
 OF (HOSES IN ACTION. 
 
 (14.) In calculating a majority on a special resolu- 
 tion for the pm-poses of this section, creditors 
 whose debts amount to sums not exceeding 
 ten pounds, were to be reckoned in the 
 majority in value, but not in the majority 
 in number. 
 
 Difference 
 between liqui- 
 dation by 
 arrangement 
 and composi- 
 tion. 
 
 Provisions as 
 to composi- 
 tion with 
 creditors. 
 
 The difference between liquidation by arrangement 
 and composition with creditors under the Bankruptcy 
 Act, 1869, was thus explained by Vice- Chancellor 
 Bacon, when Chief Judge in bankruptcy. " Liquidation 
 may be said, in general terms, to be an equivalent for 
 bankruptcy, giving the creditors the same rights which 
 they have in bankruptcy, and exposing the debtor to 
 the same obligations to which he is liable in bank- 
 ruptcy. But composition is a totally different thing. 
 All that the law requires from a debtor proposing to 
 compound with his creditors is, that he should state 
 fully what his means are of paying his debts, having 
 first stated truly what is the amount of those debts. 
 And if the creditors agree to accept his composition he 
 becomes a free man, entitled to all the rights of owner- 
 ship and disposition over every part of his property. 
 The creditors relinquish the rights which the law would 
 give them if they proceeded to bankruptcy or liquida- 
 tion by arrangement, and they are content that the 
 debtor should thenceforward deal with his property in 
 any way he thinks fit"(o). By the 126th section of 
 the Bankruptcy Act, 1869 {p), the creditors of a debtor 
 unable to pay his debts might, without any proceedings 
 in bankruptcy, by an extraordinary resolution, resolve 
 that a composition should be accepted in satisfaction of 
 the debts due to them from the debtor. 
 
 An extraordinary resolution of creditors was a reso- 
 
 (o) Per Bacon, C. J., in Ex 
 parte Burrell, 1 Ch. D. 537, 547. 
 
 [l7) Stat. 32 & 33 Vict. c. 71.
 
 or ARRANGEMENT AND COMPOSITION. 189 
 
 lutlon which had been passed by a majority in number 
 and three-fourths in value of the creditors of the debtor, 
 assembled at a general meeting held in the manner 
 prescribed, of which notice had been given in the pre- 
 scribed manner, and had been confirmed by a majority 
 in number and value of the creditors assembled at a 
 subsequent general meeting, of which notice had been 
 given in the prescribed manner, and hold at an interval 
 of not less than seven days nor more than fourteen days 
 from the date of the meeting at which such resolution 
 was first passed {q). 
 
 In calculating a majority for the purposes of a compo- 
 sition under this section, creditors whose debts amounted 
 to sums not exceeding ten pounds were to be reckoned 
 in the majority in value, but not in the majority in 
 number; and the value of the debts of secured creditors 
 were, as nearly as circumstances should admit, to be 
 estimated in the same way, and the same description of 
 creditors were to be entitled to vote at such general 
 meetings, as in bankruptcy. 
 
 The debtor, unless prevented by sickness or other 
 cause satisfactory to such meetings, was to be present at 
 both the meetings at which the extraordinary resolution 
 was passed, and was to answer any inquiries made of him, 
 and he, or if lie was so prevented from being at such 
 meetings some one on his behalf, was to produce to the 
 meetings a statement showing the wliole of his assets 
 and debts, and the names and addresses of the creditors 
 to whom such debts respectively were due (r). 
 
 The extraordinary resolution, together with the state- 
 ment of the debtor as to his assets and debts, was to 
 be presented to the registrar, and it was to be his duty 
 to inquire whether such resolution had been passed 
 in manner directed by this section, and, if satisfied that 
 it had been so passed, he was to register the resolution 
 
 {q) E.r parte McLmcu, re [r) Ex parte Best, 18 Ch. D. 
 
 McCoUa, 16 Cli. D. olU. 488.
 
 190 OF CHOSES IN ACTION. 
 
 and statement of assets and debts forthwith (s), but until 
 such registration had taken place, such resolution was to 
 be of no validity (f) ; and any creditor of the debtor 
 might inspect such statement at prescribed times, and on 
 payuient of such fee, if any, as might be prescribed. 
 
 The creditors miglit, by an extraordinary resolution, 
 add to or vary the provisions of any composition pre- 
 viously accepted by them, without prejudice to any 
 ]3ersons taking interests under such provisions who did 
 not assent to such addition or variation ; and any such 
 extraordinary resolution was to be presented to the regis- 
 trar in the same manner and with the same consequences 
 as the extraordinary resolution by which the composition 
 was accepted in the first instance. 
 
 The provisions of a composition accepted by an 
 extraordinary resolution in pursuance of this section 
 were to be binding on all the creditors whose names and 
 addresses, and the amount of the debts due to whom, 
 were shown in the statement of the debtor, produced 
 to the meetings at which the resolution had passed, but 
 were not to affect or prejudice the rights of any other 
 creditors (w). 
 
 Where a debt arose on a bill of exchange or pro- 
 missory note, if the debtor were ignorant of the holder 
 of any such bill of exchange or promissory note, he was 
 required to state the amount of such bill or note, the 
 date on which it fell due, the name of the acceptor or 
 person to whom it was payable, and any other parti- 
 culars within his knowledge respecting the same, and the 
 
 («) If it appeared that the re- Ex parte Hudson, re Walton, 22 Ch. 
 
 solution had been passed in the D.773; Ex parteEusseU,re Eolins, 
 
 interest of the debtor, and not in ib. 778. 
 
 the interest of the creditors, the {t) Ex parte McLaren, re McColla, 
 
 Court would not allow the reso- 16 Ch. D. 534. 
 
 lution to be registered ; Ex parte (m) Ex parte Paper fitainhig 
 
 Terrell, 4 Ch. D. 293 ; Ex parte Company, Law Rep., 8 Ch. 595 ; 
 
 Williams, 18 Ch.D.495 ; Ex parte Ex parte Watson, 2 Ch. D. 63. 
 Ball, re rarneU, 20 Ch. D. G70 ;
 
 OF AKRANGEMENT AND COMPOSITION, 191 
 
 insertion of sucli particulars was to be deemed a suffi- 
 cient description of the creditor of the debtor in respect 
 of such debt, and any mistake made inadvertently by a 
 debtor in the statement of his debts might be coiTected 
 after the prescribed notice had been given, with the 
 consent of a general meeting of his creditors. 
 
 The provisions of any composition made in pursuance 
 of this section might be enforced by the Court on a 
 motion made in a summary manner by any person 
 interested, and any disobedience of the order of the 
 Court made on such motion was to be deemed to be a 
 contempt of Court. 
 
 Rules of Court might be made in relation to pro- 
 ceedings on the occasion of the acceptance of a compo- 
 sition by an extraordinary resolution of creditors, in 
 the same manner and to the same extent and of the 
 same authority as in respect of proceedings in bank- 
 ruptcy. 
 
 If it appeared to the Coui-t on satisfactory evidence 
 that a composition under this section could not, in con- 
 sequence of legal difficulties, or for any sufficient cause, 
 proceed without injustice or undue delay to the creditors 
 or to the debtor, the Court might adjudge the debtor a 
 bankrupt, and proceedings might be had accordingly {x) . 
 
 The Bankruptcy Rules, 1870, provided that proceed- 
 ings under both of the above sections, namely, both for 
 liquidation by arrangement and for composition, should 
 be instituted by the debtor by petition for liquidation rctition for 
 
 J, , . ^ . ■■ , .,. •i.i r- liquidation. 
 
 01 his aiiairs by arrangement or composition with ms 
 creditors, with an affidavit thereto annexed according to 
 prescribed forms (y). This petition must have been ad- 
 di'essed to the Court to which a bankruptcy petition 
 against the debtor could have been presented (s). A Secured 
 secui^ed creditor, unless he should have realized his secu- 
 
 [x) Hx parte C/iarltoii, GCh.l). (r) Rule 253. See /o«/, the 
 
 45 ; 1)1 re Skiers, 7 Ch. D. 41G. chapter on Bankniptoy. 
 
 ((/) Rule 252.
 
 192 
 
 OF CIIOSES IN ACTION. 
 
 Terms of 
 composition 
 might be em- 
 bodied in a 
 deed. 
 
 Keoristration. 
 
 lity previously to being allowed to prove or vote, was to 
 state in his proof the particulars of his security and the 
 value at which he assessed the same ; and he was to be 
 deemed to be a creditor only in respect of the balance 
 due to him after deducting such assessed value of the 
 security. In cases of liquidation by arrangement, any 
 secured creditor so proving was bound to pay over to 
 the trustee the amount which his security should have 
 produced beyond the amount of such assessed value (a) ; 
 and the trustee was entitled at any time before realiza- 
 tion of such security by the creditor to redeem the same 
 upon payment of such assessed value. The proof of any 
 such creditor was not to be increased in the event of the 
 security realizing a less sum than the value at which he 
 had so assessed the same(/>). Where a composition was 
 accepted, the extraordinary resolution of the creditors 
 might provide that the terms of the composition should 
 be embodied in a deed between such parties and con- 
 taining such covenants for payment of the composition, 
 and for protecting and releasing the debtor, and such 
 other covenants and such provisions for securing the 
 composition, either by assignment of property or by in- 
 spection of the debtor's business, or otherwise, as the 
 nature of the case might require, and as the resolution 
 might specify in particular or general terms (c). If the 
 composition accepted were not punctually paid, the cre- 
 ditors were no longer restrained from proceeding to en- 
 force the full payment of their debts (d) . An office was 
 attached. to the London Bankruptcy Court, called " The 
 Office for Registration of Arrangement Proceedings ;" 
 and all petitions to the Court under sects, 125 and 126 
 of the Bankruptcy Act, 1869 (e), and all proceedings 
 
 (a) So also in cases of composi- 
 tion ; Socicte Generate de Paris v. 
 Geen, 8 App. Ca. 606. 
 
 {b) Rule 272. 
 
 [c) Rule 281. 
 
 {(1) Edwards \. Coomhe, Law 
 Rep., 7 C. P. 519; Ite Hatton, 
 Law Rep., 7 Ch. 723 ; Edwards v. 
 Rancher, 1 C. P. D. Ill ; Ex 
 parte Lopez, 5 Ch. D. 65. 
 
 {e) Stat. 32 & 33 Viot. o. 71.
 
 OF ARRANGEMENT AND COMPOSITION. 193 
 
 thereunder, were filed in such ojQfice, and kept in con- 
 tinuance of the records of the trust deeds under the 
 Bankruptcy Act, 1861 (/), which were transferred to 
 this office. A similar index to that heretofore in use index. 
 for trust deeds is kept of all resolutions registered under 
 the Bankruptcy Act, 18G9 (r/). This office is now at- 
 tached to the High Court of Justice (//). 
 
 The Bankruptcy Act, 1869 (/), was repealed by the Repeal of 
 Bankruptcy Act, 1883 (/.•), as from the commencement ict.^fjjj;^^ 
 of the latter Act, which took place from and immediately 
 after the 31st of December, 1883 (/). The Act of 1883 
 provided however (;;?) that, notwithstanding the repeal 
 effected thereby, the proceedings under any liquidation 
 by arrangement, or composition with creditors under 
 the Bankruptcy Act, 1869, pending at the commence- 
 ment of the Act of 1883, should, except so far as any 
 provision of the latter Act was expressly applied to 
 pending proceedings, continue, and all the provisions of 
 the Bankruptcy Act, 1869, should, except as aforesaid, 
 apply thereto, as if the Act of 1883 had not passed. 
 And it was provided {)i) that, after the passing of the 
 Act of 1883 (o) no composition or liquidation by 
 arrangement under sections 125 and 126 of the Bank- 
 ruptcy Act, 1869, should be entered into or allowed 
 without the sanction of the Court or registrar having 
 jurisdiction in the matter ; and that such sanction 
 should not be granted unless the composition or liquida- 
 tion appeared to the Court or registrar to be reasonable 
 and calculated to benefit the general body of creditors. 
 
 (/) Stat. 24 & 25 Vict. c. 134, (/.•) Stat. 4G & 47 Vict. c. 52, 
 
 8. 194, ante, pp. 181, 182. s. 169, sub-s. 1. 
 
 iff) Rule 315. (/) Sect. 3. 
 
 (/i) See stat. 46 & 47 Vict. c. {m) Sect. 169, sub-s. 3. 
 
 62, 88. 92—94. {») Sect. 170. 
 
 (i) Stat. 32 & 33 Vict. c. 71. (o) The Act received the ruyal 
 
 assent un the 25th August, 1883. 
 
 ■W.P.P. O
 
 104 OF CIIOSES IN ACTION. 
 
 Bankruptcy The Bankruptcy Act, 1883 (7), does not contain any 
 "^ ' ■ provisions for liquidation by arrangement of a debtor's 
 affairs, or with regard to compositions with creditors, 
 similar to the repealed enactments of the Bankruptcy 
 Act, 1869 (r). No composition or scheme of arrange- 
 ment with creditors can be initiated under the Act of 
 1883, until proceedings have been taken in bankruptcy 
 by the presentation of a hanhruptcij petition, the making 
 of a receidng order by the Court, and the holding of a 
 first meeting of creditors in consequence thereof («). It 
 is thought therefore that the provisions of the Act of 
 1883 relating to the acceptance by creditors of a com- 
 position, or theii' assent to a scheme of arrangement, 
 will be more properly dealt with in the chapter on 
 Bankruptcy. 
 
 Agreement to A man may still make an agreement with his credi- 
 position. tors that they shall accept the payment of a composition 
 
 in satisfaction of the debts due to them {t). In the 
 absence of any fraud on the part of the debtor, such an 
 agreement is binding upon those creditors who enter 
 into it {i(). And there is now no necessity for the 
 registration of any such agreement (.r). But no agree- 
 ment for the acceptance of a composition, or otherwise 
 for the liquidation of a debtor's affairs, can now be 
 made to bind any creditor, who does not assent thereto, 
 except in proceedings under the Bankruptcy Act, 
 1883 [q). Thus, if a debtor make any such arrange- 
 ment with the majority of his creditors, and commit 
 any act of bankruptcy in carrying out the terms of the 
 arrangement, a creditor, who has not assented thereto, 
 may take proceedings to have the debtor's estate ad- 
 ministered in bankruptcy (y). But a creditor who has 
 
 {q) Stat. 46 & 47 Viet. c. 52. («) Xorinan v. Thompson, 4 Ex. 
 
 (r) Stat. 32 & 33 Vict. c. 71, 755 ; Care>j v. Barrett, 4 C. P. D. 
 
 s. 125, 126. 379. 
 
 (s) See Stat. 46 & 47 Vict. c. (,r) See ante, pp. 178, 179. 
 
 52, ss. 5, 15, 18. (y) Rv parte Dixon, W. N. 1884, 
 
 (/) See ante, p. 17G. p. 115.
 
 OF ARRANGEMENT AND COMPOSITION. 105 
 
 acquiesced iu and taken some benefit under an arrange- 
 ment for composition, will not be permitted to commence 
 proceedings in bankruptcy against the debtor, founded 
 upon an act of bankruptcy committed in carrying out 
 the arrangement (a) . The acts of bankruptcy are enu- 
 merated in the next chapter (b). 
 
 The payment of a composition is sometimes guaranteed 
 by some friends of the debtor as his sureties (c), and 
 when paj^ment is made, a release of all demands is given 
 by the creditors. If, however, a man's creditors should 
 agree to accept a composition to be paid within some 
 specified time, and the composition should not be 
 pimctually paid, the creditors will no longer be re- 
 strained from proceeding to enforce the fidl payment 
 of tlieir debts (c/). Such creditors as hold security for 
 their debts should openly stipulate that their securities 
 are not to be affected ; and such a stipulation will be 
 sufficient to preserve them (e). But any secret agree- 
 ment between the debtor and a creditor, by which he is 
 to have any advantage over the others, in order to 
 induce him to agree to the composition, is evidently a 
 fraud on the other creditors, and as such is absolutely 
 void (/), and prevents the creditor who is party to it 
 from suing for his share in the composition {(j). 
 
 (a) Hx parte Ahoj},lDe G.,F. (/) Leicester v. Eose, 4 East, 
 &J. 289; JSx parte Slrai/jJj. U., 372; Knitjht v. Ilwit, 5 Bing. 
 2 Ch. 374. 432; Tcmlkhury v. IValkcr, 4 
 
 [b) Post, pp. 200—203. You. & Coll. 424 ; Alsaffcr v. 
 
 (c) See Ex parte Hudson, re Spalding, 4 N. C. 407 ; Higgiiis v. 
 Walton, 22 Ch. D. 773. ntt, 4 Ex. Rep. 312 ; rjleger v. 
 
 [d) Cranlcii v. milary, 2 M. & Brotcn, 28 Beav. 391 ; SLare v. 
 S. 120; Mollish,L. J.,7iVifrt«w(, Warner, 3 Giff. 100; Mure \. 
 L. R., 7 Ch. 723, 72G. Earle, 3 Giff. 108. See also Ex 
 
 (r) Nichols V. dforris, 3 Bam. parte Barrow, re Andreus, IS Ch. 
 
 (fcAdol. 41; Ex parte Glendinniny, J). 464, 471. 
 
 Buck, 517; Lee v. LocJchart, 3 (r/) Hoivden y. Haigh, 11 Adol. 
 
 Mylne & Craig, 302 ; Culling- k Ell. 1033 ; Ex parte Oliver, 4 
 
 worth V. Lloyd, 3 Beav. 385, and De Gex & Smale, 354. See At- 
 
 the cases collected, p. 395 ; Bush hinson v. Bcnhy, 7 IT. & N. 934. 
 V. Shipmaii, 14 Sim. 239. 
 
 .)2
 
 196 
 
 OF CIK^SES IN ACTIO?<. 
 
 CHAPTER V. 
 
 OF BANKRUPTCY. 
 
 Discharge 
 from debt by- 
 bankruptcy. 
 
 Under some circumstances a debtor is discharged bj 
 law from his debt without any actual payment, or with- 
 out payment of more than a part of it. TJiis occurs in 
 the case of bankruptcy. Wlien a man is made bank- 
 rupt, he gives up all his property to his creditors, to be 
 divided rateably amongst them ; and, if his behaviour 
 has been free from serious blame, he obtains a discharge 
 from past liabilities. Bankruptcy was formerly consi- 
 dered as a crime, and in the earliest bankruptcy Acts 
 the bankrupt was called "the offender" (a). But in 
 modern times bankruptcy has been looked upon as the 
 proper remedy for traders in embarrassed circumstances ; 
 and persons not engaged in trade have been enabled to 
 avail themselves of this resource. 
 
 Bankruptcy 
 statutes of 
 Hen. VIII. 
 and Eliz. 
 
 Statutes of 
 James I. 
 
 The law of bankruptcy was introduced by stat. 34 & 
 35 Hen. VIII. c. 4, "An Act against such persons as do 
 make bankrupt." But the provisions of this Act were 
 almost entirely altered by stat. 13 Eliz. c. 7, " An Act 
 touching orders for bankrupts," in which persons liable 
 to become bankrupt were for the first time defined as 
 traders (h). The bankruptcy law was again re-cast by 
 stats. 1 Jac. I. c. 15, and 21 Jac. I. c. 19. These 
 statutes were amended by many others, passed at 
 various times (c) ; but they continued to form the 
 
 {a) 1 Black. Comm. 471 ; see 
 stats. 34 & 35 Hen. VIII. c. 4 ; 
 13 Eliz. c. 7 ; 1 Jac, I. c. 15. 
 
 [h) 2 Black. Comm. 474. 
 
 (c) See Btat. 6 Geo. IV. c. 16, 
 
 s. 1.
 
 OF HANKHl :rT( Y. 197 
 
 foundation of the law of bankruptcy, until they were 
 
 repealed, together with all the Acts amending them, by 
 
 statutes passed in the years 1824 and 1825 {d). In the Act of 1825. 
 
 year 1825, the bankruptcy law was consolidated by 
 
 stat. 6 Greo. IV. c. IG, '"An Act to amend the Laws 
 
 relating to Bankrupts." This Act was amended and 
 
 altered by various others (c) ; but in the year 1840 the 
 
 whole law was again consolidated in the Bankrupt Law Act of I8i9. 
 
 Consolidation Act, 1849 (./'), by which the Act of 1825 
 
 and all the subsequent amending statutes were repealed. 
 
 Important changes were made in the law by the Bank- Act of iSGi. 
 
 ruptcy Act, 18G1(^), under which persons not in trade 
 
 were for the first time liable to become bankrupt. In 
 
 the year 1869, however, all the bankruptcy statutes then Act of 1869. 
 
 in force were repealed(/^) to make way for the Bankruptcy 
 
 Act, 1869 (/), by which the whole law of bankruptcy 
 
 was regulated from the beginning of the year 1870 
 
 until the end of the year 1883. The Act of 1869 was 
 
 repealed by the Bankruptcy Act, 1883 (/.), which came Act of 1883. 
 
 into operation from and immediately after the 31st 
 
 of December, 1883 (/), and upon which the whole law 
 
 of bankruptcy now depends. The Act of 1883 provides Power to 
 
 that general rules for carrj'ing into effect the objects of °^^ ^ ^ '^^' 
 
 the Act may be made by the Lord Chancellor, with the 
 
 concurrence of the President of the Board of Trade (;;^). 
 
 The Bankruptcy Rules, 1883 (ii), have been made in Bankruptcy 
 
 exercise of the power so conferred by the Act. By "' 
 
 these rules the procediu-e in bankruptcy is now regu- Procedure. 
 
 lated. 
 
 (d) Stats. 5 Geo. IV. c. 98 ; 6 (/) Stat. 12 & 13 Vict. c. lOG. 
 
 Geo. IV. c. 16. iff) Stat. 24 & 25 Vict. c. 134. 
 
 {e) 1 & 2 Will. IV. c. 56 ; 3 & (Z;) By stat. 32 & 33 Vict. c. 83. 
 
 4 Will. IV. c. 47 ; 1 & 2 Vict. (i) Stat. 32 & 33 Vict. c. 71. 
 
 c. 110 : 2 Vict. c. 11 ; 2 & 3 Vict. (/.) Stat. 46 & 47 Vict. c. 52. 
 
 c. 29 ; 5 & 6 Vict. c. 122 ; 7 & 8 (/) Sect. 2. 
 
 Vict. c. 96; 8 & 9 Vict. c. 48; (m) Sect. 127. 
 
 10 & 11 \'ict. c. 102; 11 & 12 (h) W. N. 22nd December. 
 
 Vict. 0. 86, 1883, supplement.
 
 198 
 
 OF CIIOSES IN ACTIUK. 
 
 Persons sub- 
 ject to bank- 
 ruptcy la-ws. 
 
 Traders. 
 
 Attorney or 
 solicitor not 
 liable as such. 
 
 Difference 
 made between 
 
 As a general rule, all debtors are now liable to be 
 made bankrupt. This has been the law since the 
 Bankruptcy Act, 1861, came into operation (o). Before 
 that time traders only were subject to the bankruptcy 
 laws. Traders were defined by the Act of 1840 to be 
 all alum makers, apothecaries, auctioneers, bankers, 
 bleachers, brokers, brickmakers, builders, calenderers, 
 carpenters, carriers, cattle or sheep salesmen, coach pro- 
 prietors, cow keepers, dyers, fullers, keepers of inns, 
 taverns, hotels or coffee houses, lime burners, livery 
 stable keepers, market gardeners, millers, packers, 
 printers, shipowners, shipwrights, victuallers, ware- 
 housemen, wharfingers, scriveners receiving other men's 
 monies or estates into their trust or custody, persons 
 insuring against perils of the sea, and all persons using 
 the trade of merchandise by way of bargaining, ex- 
 change, bartering, commission, consignment, or other- 
 wise in gross or by retail, and all persons who either 
 for themselves, or as agents or factors for others, seek 
 their living by buying or selling, or by buying and 
 letting for hii'e, or by the workmanship of goods or 
 commodities. But no farmer, grazier, common labourer 
 or workman for hire, receiver-general of the taxes, or 
 member of or subscriber to any incorporated commer- 
 cial or trading companies established by charter or Act 
 of Parliament, was to be deemed as such a trader liable 
 to become bankrupt Q^). An attorney or solicitor, as 
 such, was not a trader within the bankrupt law ; but if 
 he were in the habit of receiving his clients' money into 
 his own hands and investing it for them, and charging 
 a compensation for so doing, in addition to his charges 
 for other professional business, he was liable to become 
 bankrupt as a scrivener receiving other men's monies 
 into his trust [q) The enumeration of traders contained 
 
 (o) See stats. 24 & 25 Vict. 
 c, 134, s. 69 ; 32 & 33 Vict. c. 71, 
 s. 6 ; 46 & 47 Vict. c. 52, s. 4. 
 
 (;;) Stat. 12 & 13 Vict. c. lOG, 
 s, 66. 
 
 (q) MalJcin v. Adams, 2 Rose,
 
 OF J5AXKUI I'TCV. 199 
 
 in the Bankrupt Law Consolidation Act, 1840, was re- traders and 
 peated in tlie Baiikruptey Act, 18G9, with the addition bytiioAct of 
 of sharebrokers, stockbrokers, and stockjobbers (r). All 18G9— 
 debtors were liable to become bankrupt under the Act 
 of 1869 : but traders might be made bankrupt for cer- 
 tain causes, which were not acts of bankruptcy in the 
 case of other persons (.s) ; and the provisions of the Act 
 with regard to the avoidance of voluntary settlements, 
 and covenants for future settlement, apj^lied to traders 
 only (/). In the Bankruptcy Act, 1883, no difference bntnono 
 appears to be made between traders and other debtors, Act of 1883. 
 except in the " reputed ownership " clause, which seems 
 to be applicable only to persons carrying on some trade 
 or business (^f). An alien or denizen is within the Alienor 
 bankrupt law (.r) . And a married woman carrying on ,, _. " 
 trade for her separate use by the custom of London (//), woman. 
 or whilst her husband was undergoing sentence of 
 transportation, has always been liable to be made 
 bankrupt (;:). But, before the year 1883, a married 
 woman was not ordinarily mthin the bankrupt law, 
 even though she had separate estate {a). The Married 
 Women's Property Act, 1882, now provides that every 
 married woman carrying on a trade separately from her 
 husband shall, in respect of her separate property, be 
 subject to the bankruptcy laws in the same way as 
 if she were a /c/np sole [h). And it is provided that 
 
 28; Ex parte Bath, Mont. 82, 84, {x) Ex parte Crisput, L. R., S 
 
 where the cases arc collected. Ch. 374, 379. 
 
 See also WUkinson v. Candlish, 5 {y) Ex parte Carriiigloit, 1 Atk. 
 
 Ex. Rep. 91, 97; Ex parte Eu- 20G. 
 
 faur, 2 De Gex, M. & G. 24G. (c) Ex parte Fran/cs, 7 Biug. 
 
 (r) Stat. 32 & 33 Vict. c. 71, 762 ; 1 M. & Scott, 1. 
 
 Schedule 1. {a) ExparteJones,inrcGrisseU, 
 
 (s) See sect. 6. 12 Cli. D. 484 ; WUliams's Con- 
 
 [t) Sect. 91. vcyancing Statutes, 417. 
 
 \u) Stat. 46 & 47 Vict. c. 52, [h) Stat. 45 & 46 Vict. c. 75, 
 
 s. 44 ; ante, p. 86. s. 1, sub-s. 5 ; see Williams's 
 
 Conveyancing Statutes, 416,
 
 200 
 
 OF CHOSKS IN ACTION. 
 
 Infant. 
 
 Persons 
 having privi- 
 lege of Par- 
 liament. 
 
 nothing in tlie Bankruptcy Act, 1883 (c), shall affect 
 the provisions of the Married Women's Property Act, 
 1882 ((/). It appears that an infant under the age 
 of twenty-one years cannot be a bankrupt, because by 
 the law of England he cannot be made liable on con- 
 tracts entered into by him in the course of trade, 
 or otherwise except for necessaries (e) . If a person 
 having privilege of Parliament commits an act of 
 bankruptcy, he may be dealt with under the Bank- 
 ruptcy Act, 1883, in like manner as if he had not 
 such privilege (/). The same law prevailed under the 
 Acts of 1869 (^), 1861(70, 1849(0, and 1825(70. 
 Traders having privilege of Parliament were first ex- 
 pressly declared to be subject to the bankrupt laws by 
 stat. 4 Greo. III. c. 33. But, independently of the express 
 provisions of the various bankruptcy statutes, a person, 
 who enjoys privilege of Parliament, is not thereby 
 exempted from liability to be adjudged bankrupt (/). 
 
 Acts of bank- 
 ruptcy. 
 
 A person becomes liable to be adjudged bankrupt 
 by committing an act of hankruptci/. By the Bank- 
 ruptcy Act, 1883 (m), a debtor commits an act of bank- 
 ruptcy in each of the following cases : — 
 
 (a.) If in England or elsewhere he makes a con- 
 veyance or assignment of his property to a 
 
 (f) Stat. 46 & 47 Vict. c. 52, 
 8. 152. 
 
 (d) As to the question, to what 
 extent a married woman is now 
 subject to the bankruptcy laws, 
 see Williams's ConA^eyancing 
 Statutes, 417. 
 
 (e) Belton v. Hodges, 9 Bing. 
 365, 370: stat. 37 & 38 Viot. 
 c. 62, ante, p. 117 ; R.y. Wilson, 
 5 Q. B. D. 28 ; Ex parte Jones, 
 re Jones, 18 Ch. D. 109. 
 
 (/) Stat. 46 & 47 Vict, c. 52, 
 s. 124, 
 
 {g) Stat. 32 & 33 Vict. c. 71, 
 s. 120. 
 
 (/i) Stat. 24 & 25 Vict. c. 134, 
 s. 69; Biike of Neweastle v. Morris, 
 L. R., 4H. L. 661. 
 
 (0 stat. 12 & 13 Vict. c. 106, 
 s. 66. 
 
 (/■) Stat. 6 Geo. IV. c. 16, s. 9. 
 
 {I) Hardwicke, C, Ex parte 
 Meijmot, 1 Atk. 196, 201 ; Buke 
 of Newcastle v. Morris, L. K., 4 
 H. L. 601. 
 
 (m) Stat. 46 & 47 Vict. c. 52, 
 s. 4.
 
 OF BA^"KllLf^TCY. 
 
 201 
 
 trustee or trustees for the benefit of liis credi- 
 tors generally (ii) : 
 
 (b.) If in England or elsewhere he makes a frau- 
 dulent conveyance, gift, delivery, or transfer 
 of his })roperty, or of any part thereof (o) : 
 
 (c.) If in England or elsewhere he makes any con- 
 veyance or transfer of his property or any part 
 thereof, or creates any charge thereon which 
 would under this or any other Act be void as 
 a fraudulent preference if he were adjudged 
 bankrupt {/)) : 
 
 (d.) If with intent to defeat or delay his creditors he 
 does any of the following things, namely, 
 departs out of England, or being out of 
 England remains out of England (q), or de- 
 parts from his dwelling-house, or otherwise 
 absents himself (;•), or begins to keep house (-s-) : 
 
 (w) This was first expressly 
 made an act of bankruptcy by 
 Stat. 32 & 33 Vict. c. 71, s. 6. 
 Before the Act of 1869, a con- 
 veyance of all a man's property 
 to trustees for the benefit of his 
 creditors generally was held to be 
 an act of bankruptcy, as being a 
 fraudulent conveyance ; see ante, 
 p. 179, and cases cited in notes 
 [e), [g) thereto. 
 
 (o) This was made an act of 
 bankruptcy, as to traders, by 
 stats. 1 Jac. I. c. 15, s. 2 ; G 
 Geo. IV. c. 16, 8. 3; 12 & 13 
 Vict. c. 106, s. 67 ; as to non- 
 traders, by stat. 24 & 25 Vict. 
 c. 134, s. 70 ; as to all debtors, 
 by stat. 32 & 33 Vict. c. 71, s. 6. 
 
 ( p) This was first made an act 
 of bankruptcy by the Act of 1883. 
 Before that Act, an act, which 
 might be avoided as a fraudulent 
 preference, was not an act of 
 bankruptcy, unless it were void 
 
 as a fraudulent conveyance ; Ex 
 2)arte Stuhbins, re Wilkinson, 17 
 Ch. D. 58, 68. 
 
 {q) This was made an act of 
 bankruptcy, as to traders, by 
 stats. 13 Eliz. c. 7, s. 1 ; 1 
 Jac. I. c. 15, s. 2 ; 6 Geo. IV. 
 c. 16, s. 3 ; 12 & 13 Vict. c. 106, 
 8. 67 ; as to non -traders, by stat. 
 24 & 25 Vict. 0. 134, 8. 70 ; as to 
 all debtors, by stat. 32 & 33 Vict, 
 c. 71, 8. 6. See Hx parte Bran- 
 don, re Trench, 25 Ch. D. 500. 
 
 ()•) Before the Act of 1883, this 
 was an act of bankruptcy in the 
 case of traders only. See stats. 
 13 Eliz. c. 7^ 8. 1 ; 1 Jac. I. c. 15, 
 s. 2; 6 Geo. IV. c. 16, s. 3; 
 12 & 13 Vict. c. 106, 8. 67 ; 
 32 & 33 Vict. c. 71, 8. 6 ; Ex parte 
 21^ George, re Stevens, 20 Ch. D. 
 697. 
 
 (.s) Before the Act of 1869, this 
 was an act of bankruptcy in the 
 case of traders only ; by that Act,
 
 20: 
 
 OF ClIOSES IN ACTION. 
 
 (o.) If oxeeution issued against him has been levied 
 by seizure and sale of his goods under process 
 in an action in any Court, or in any civil pro- 
 ceeding in the High Coiu't (f) : 
 
 (f.) If he files in the Court a declaration of his 
 inability to pay his debts or presents a bank- 
 ruptcy petition against himself {t<) : 
 
 (g.) If a creditor has obtained a final judgment 
 against him for any amount, and execution 
 thereon not having been stayed, has served on 
 him in England, or, by leave of the Court, 
 elsewhere, a bankruptcy notice under this 
 Act («■), requuing him to pay the judgment 
 debt in accordance with the terms of the judg- 
 ment, or to secure or compound for it to the 
 satisfaction of the creditor or the Court, and 
 he does not, within seven days after service of 
 the notice, in case the service is effected in 
 England, and in case the service is effected 
 
 iu tlie case of all debtors (see 
 enactments cited in preceding 
 note). 
 
 (t) This was first made an act 
 of bankruptcy in the case of all 
 debtors by the Act of 1883. By 
 stat. 32 & 33 Vict. c. 71, s. 6, 
 the seizure and sale of .the goods 
 of a trader on an execution for 
 obtaining payment of not less than 
 601. "vras an act of bankruptcy. 
 The Act of 1861 contained a 
 similar provision (stat. 24 & 25 
 Vict. c. 134, s. 73) as to executions 
 for sums exceeding oOl. Under the 
 previous statutes it was an act of 
 bankruptcy for a trader to "pro- 
 cure his goods to be taken in 
 execution;" stats. 1 Jac. I. c. 15, 
 s. 2 ; 6 Geo. IV. c. 16, s. 3 ; 
 12 & 13 Vict. c. 106, s. 67. 
 
 (n) These were acts of bank- 
 ruptcy under the Acts of 1869 
 and 1861, in the case of all 
 debtors, and under the Acts of 
 1849 in the case of traders ; stats. 
 32 & 33 Vict. c. 71, s. 6; i:.v 
 parte Dulf/nan, re Bissell, L. E., 
 6 Ch. 605 ; 24 & 25 Vict. c. 134, 
 ss. 72, 86; 12 & 13 Vict. c. 106, 
 ss. 70, 76, 93. Filing a declara- 
 tion of insolvency was first made 
 an act of bankruptcy by stat. 
 6 Geo. IV. 0. 16, s. 6. A trader 
 was first enabled to present a 
 bankruptcy petition against him- 
 self by stat. 7 & 8 Vict. c. 96, 
 s. 41. 
 
 {x) See stat. 46 & 47 Vict. c. 52, 
 s. 4, sub-s. 2 ; Bankruptcy Rules, 
 1883, Nos. 118-124.
 
 OK KAMviaj'l'CV. 203 
 
 elsewhere, then within the time limited in that 
 Lehalf by ilie order f^iving leave to effect the 
 service, either comply with the requirements 
 of the notice, or satisfy the Conrt that ho has 
 a counter-claim set-off or cross demand wliich 
 equals or exceeds the amount of the judgment 
 debt, and which ho could not set up in the 
 action in which the judgment was obtained (//). 
 (h.) If the debtor gives notice to any of his creditors 
 that he has suspended, or that he is about to 
 suspend, paj-ment of his debts (z) . 
 
 If the reader will look at the notes appended to the History of 
 above definitions, he will gain an idea of the previous of bank -^°*^ 
 history of every act of bankruptcy defined in the Act of ruptcy. 
 1883. Mention may here be made of certain acts of Obsolete acts 
 bankruptcy, defined by former banki'uptcy statutes, ruptey" 
 wliich have been omitted from the present Act as ob- 
 solete. Thus it was always an act of bankruptcy if a Outlawry. 
 trader suffered himself to be outlawed (a) ; and by the 
 Act of 1869 outlawry was made an act of bankruptcy 
 in the case of all debtors (/>). But outlawry in civil 
 
 (y) It was an act of bank- served; stat. 12 & 13 Vict. c. 106, 
 
 ruptcy, under the Act of 1869, s. 72. Failure to satisfy a debt, 
 
 for anj' debtor to fail to comply after summons duly issued, was 
 
 with a d(lj/or\s sitnimoiis, requiring first made an act of bankruptcy 
 
 payment of a sum not less than in the case of traders having 
 
 50/., issued under that Act ; and, privilege of Padiament, by stat. 
 
 under the Act of 1801, for any 4 Goo. III. c. 33 (so also under 
 
 debtor to fail to corajily with a stat. 6 Geo. IV. c. 16, ss. 10, 11) ; 
 
 judgment debtor^ s summons, issued in the case of all traders, by stat. 
 
 under that Act; but in both cases 1 & 2 Vict. c. 110, s. 8. 
 a difFerence Avas made between (~) This was first made an act 
 
 traders and non-traders ; see stats. of bankruptcy by the Act of 1883. 
 32 & 33 Vict. c. 71, s. 6 ; 24 & {a) Stats. 13 EUz. c. 7, s. 1 ; 
 
 25 Vict. c. 134, ss. 76—85. Under 1 Jac. I. c. 15, s. 2 ; 6 Geo. IV. 
 
 the Act of 1849, it was an act of c. 16, s. 3 ; 12 & 13 Vict. c. 106, 
 
 bankruptcy for a trader to fail to s. 67. 
 
 satisfy a judgment debt within (i) Stat. 32 & 33 Vict. c. 71, 
 
 seven days after a notice, re- s. 6. 
 quiring payment, had been duly
 
 204 
 
 OK CHOSES IN Af'TIOX. 
 
 Arrest, &c. 
 
 Lying 
 prison. 
 
 Escape. 
 
 Insolvency. 
 
 proceedings was alDolislicd in the year 1879 (r) ; and 
 there was therefore no longer any occasion to make 
 outlawry an act of bankruptcy. Before the year 1870, 
 it was an act of bankruptcy for a trader to suffer him- 
 self to be arrested or taken in execution for any debt 
 not due, or to yield himself to prison, or to procure 
 himself to be arrested or taken in execution {d). So 
 also it was formerly an act of bankruptcy for a trader, 
 imprisoned for debt, to lie in prison for two months {c) ; 
 which period was afterwards reduced to twenty-one 
 days (_/'), and then to fourteen days (g). And by the 
 Act of 1861, it was made an act of bankruptcy for a 
 non-trader, imprisoned for debt, to lie in prison for two 
 months (g) . But the same Act provided that no debtor, 
 whether a trader or not, should be adjudged bankrupt 
 on the ground of having lain in prison as aforesaid, 
 unless, having been smnmoned, he should not offer 
 such security for the debt in respect of which he was 
 imprisoned as the commissioner or registrar, whose duty 
 it would otherwise be to adjudicate, should deem rea- 
 sonably sufficient (/^). Before the year 1870 also, it 
 was an act of bankruptcy for a trader, and, after the 
 Act of 1861, for any debtor, arrested or imprisoned for 
 debt, to escape out of prison or custody (/). The Act 
 for the abolition of imprisonment for debt (/.-), which 
 came into operation at the commencement of the year 
 1870, removed all occasion for providing that any arrest 
 or imprisonment for debt, or escajDC out of custody, 
 should be an act of bankruptcy. By the Act of 1849, 
 
 (c) By Stat. 42 & 43 Vict. c. 59, 
 8. 3. 
 
 (^0 Stats. 12 & 13 Vict. c. 106, 
 s. G7; 6 Geo. IV. c. 16, s. 3 ; 1 
 Jac. I. c. 15, s. 2. 
 
 (f) Stat. 21 Jac. I. c. 19, s. 2. 
 
 (/) Stats. 6 Geo. IV. c. 16, 
 s. 5; 12 & 13 Vict. c. 106, s. 69. 
 
 {ff) Stat. 24 & 25 Vict. c. 134, 
 
 s. 71. 
 
 {k) Stat. 24 & 25 Vict 
 s. 71. 
 
 (i) Stats. 21 Jac 
 6 Geo. IV. c. 16, 
 Vict. c. 106, s. 69 ; 
 c. 134, s. 71. 
 
 {k) Stat. 32 & 33 Vict. c. 62, 
 ante, pp. 154 — 156. 
 
 134, 
 
 I. c. 19, s. 2; 
 i. 5; 12 & 13 
 24 & 25 Vict.
 
 OF BANKRUPTCY. 2U0 
 
 a trader in actual custody might commit au act of 
 banki'uptcy by filing a petition for his discharge from 
 custody in the Com-t for the relief of insolvent debtors 
 in England (/). And by the same Act {/a) it was con- lusolvcucy in 
 elusive evidence of an act of bankruptcy, if a trader ■'■"'l^^- 
 were adjudicated insolvent in India. And, by the Act Insolvency in 
 of 1861, the filing of a petition by or against any 
 debtor in any Court having jurisdiction for the relief of 
 insolvent debtors in insolvency or bankruptcy in any of 
 her Majesty's dominions, colonies, or dependencies, and 
 the adjudication of an act of insolvency or bankruptcy 
 on such petition, was made evidence of an act of bank- 
 ruptcy {ii). The Court for the relief of insolvent debtors 
 in England was abolished at the end of the year 1869 (o). 
 And no mention is made amongst the acts of bankruptcy 
 defined in the Bankruptcy Acts, 1869 or 1883, of the 
 adjudication of an act of insolvency in England or else- 
 where. 
 
 Some further mention should be made of those acts Non-payment 
 of bankruptcy imder the Acts of 1849, 1861 and 1869, deit!'^°°'*'''* 
 for which the Act of 1883 has substituted non-com- 
 pliance with a bankruptcy notice imder that Act, 
 requiring payment of a judgment debt {p). Failure to 
 pay, secure or compound for a debt, after a summons 
 requiring pajTuent had been duly issued, was first made 
 an act of bankruptcy by an Act of the year 1763 (q), 
 in the case of traders having privilege of Parliament (>■) , 
 who could not be arrested for debt (.s). Similar pro- 
 visions were inserted in the Act of 1825 (f). Failure to 
 pay, secure or compound for a debt, of which payment 
 
 {I) Stat. 12 & 13 Vict. c. 106, (p) Ante, p. 202. 
 
 s. 74 ; see below, the Chapter on (<?) Stat. 4 Geo. III. c. 33. 
 
 Insolvency. (>•) Ante, p. 200. 
 
 {in) Sect. 75. (a) 1 Black. Comm. 165. 
 
 (h) Stat. 24 k 25 Vict. c. 134, (<) Stat. G Geo. IV. c. 16, ^i 
 
 8. 75. 10, 11. 
 
 (o) By Stat. 32 & 33 Vict. c. S3.
 
 20G OP CHOSES IX ACTION. 
 
 liad been demanded in a prescribed form, was first made 
 an act of bankruptcy in the case of all traders by tlie 
 Act wliicb abolished arrest on mesne process in civil 
 actions {u). Under the Act of 1849, any trader might 
 commit an act of bankruptcy by omitting to pay, 
 secure or compound for a judgment debt due from him, 
 within seven days after a notice requiring payment had 
 been duly served on him (,/■). This provision was re- 
 pealed by the Act of 1861 (//). Under that Act, an 
 act of bankruptcy might be committed by non-com- 
 pliance with what was called ^judgment dehtov summons. 
 Juclginent Every judgment creditor who was entitled to sue out a 
 mons. writ of capias ad satisfaciendum (s) against the debtor in 
 
 respect of any debt amounting to 50/., exclusive of costs, 
 might at the end of one week from the signing of judg- 
 ment have sued out against any trader, whether he 
 were in custody or not, a summons, called a judgment 
 debtor summons, requiring him to appear, and to . be 
 examined respecting his ability to pay the debt [a). In 
 like manner, where any decree or order of a court of 
 equity, or order in bankruptcy, insolvency, or lunacy, 
 directing the payment of money, had been disobeyed by 
 the debtor, after having been duly served on him, and the 
 person entitled to the money, or interested in enforcing 
 payment of it, had obtained a peremptory order fixing a 
 day for payment, and the debtor, being a trader, should 
 not within seven days after service on him of the per- 
 emptory order, or within seven days after the day 
 fixed by the peremptory order for payment (which 
 should last have happened), have paid the money, or 
 secured, or tendered, or compounded for it, to the satis- 
 faction of the creditor, the creditor might at the end of 
 
 {u) Stat. 1 & 2 Vict. c. 110, {y) Stat. 24 & 25 Vict. c. 134, 
 
 s. 8. s. 230. 
 
 {x) Stat. 12 & 13 Vict. c. 106, {z) See ante, p. 154. 
 
 ss. 66, 72. [a) Stat. 24 & 25 Vict. c. 134, 
 
 s. 76.
 
 or iJANKHuncY. 207 
 
 those seven days have sued out against the debtor a 
 judgment debtor siimmons (b). And if after service 
 of such summons the debtor should not have paid the 
 debts and costs, or secured or compounded for the same 
 to the satisfaction of the creditor, the Court might, on 
 the appearance of the debtor, or if he should not have 
 appeared having no lawful impediment allowed by the 
 Court, have adjudged him bankrupt (c). Under the Non-paymcut 
 Act of 1849, a trader might also commit an act of ''* "^^^^-^ 
 bankruptcy by not satisfj-ing a simple debt due from 
 him, after proceedings duly taken against him. For Filing- affida- 
 the Act contained a provision, that on a proper affidavit ^^ ^ '-'^ ■ 
 of debt being made by any creditor, stating, amongst 
 other things, the delivery to the trader personally, or to 
 some adult inmate at his usual or last known place of 
 abode or business, of written particulars of his demand, 
 "with notice requiiing immediate payment, such trader 
 might be summoned to appear before the Bankrupt Court 
 either to admit the demand, or to swear that he verily 
 believed that he had a good defence to such demand or 
 to some part of it. And in such case the Court was em- 
 powered to require the trader to enter into a bond with 
 two sureties to pay such sum as should be recovered, 
 together with such costs as should be given in any 
 action which should have been or should be brought for 
 the recovery of such demand or any part thereof (c/). 
 And if he admitted the demand, and did not satisfy Admission of 
 the creditor witliiu seven days next after the filing payment.""^" 
 of such admission, he committed an act of bank- 
 ruptcy on the eighth day after the filing of such ad- 
 mission, provided a petition for adjutlication of bank- 
 ruptcy were filed against him within two calendar 
 months from the filing of the creditor's affidavit (c) . 
 There were other attendant pro^'isions which it is now 
 unnecessary to state. Under the Act of 18G9, any Debtor's 
 
 summons. 
 
 (i) Sect. 77. {d) Stat. 12 & 13 Vict. c. lOG, 
 
 (f) Sect. 83. ss. 78, 79. 
 
 {(') Sect. 81.
 
 208 OF CHOSES IN ACTION. 
 
 debtor might commit an act of bankruptcy by non- 
 pa;yinent of a simple debt, after having been duly 
 served with a dvhtor'H sHmmo)i><, issued under that Act. 
 For it was made an act of bankruptcy by the Act of 
 1869 (/) if, when a creditor had served in the pre- 
 scribed manner on the debtor a debtor's summons 
 requiring the debtor to pay a sum due, of an amount 
 of not less than fifty pounds, the debtor being a trader 
 had for the space of seven days, or not being a trader 
 had for the space of three weeks, succeeding the service 
 of such summons, neglected to pay such sum, or to 
 secure or compound for the same. A debtor's sum- 
 mons might be granted by the Com-t on a creditor 
 proving to its satisfaction that a debt sufficient to 
 su23port a petition in bankruptcy was due to him from 
 the person against whom the summons was sought, and 
 that the creditor had failed to obtain payment of his 
 debt after using reasonable efforts to do so {(j). 
 
 Fraudulent We have Seen (A) that it has been an act of bank- 
 
 whatis. ' ruptcy for a person within the bankrupt laws to 
 make any fraudulent conveyance of his property, even 
 since the bankruptcy statute, 1 Jac. I. c. 15, was passed. 
 The question of fraud sometimes resolves itself into the 
 question of the debtor's intention in making the con- 
 veyance, and sometimes is concluded from the nature of 
 the conveyance itself. A bond fide intent to carry on 
 his business, and to procure advances for that purpose, 
 will sustain a mortgage of the whole or nearly all of the 
 debtor's property (/) ; and this is the case even if such 
 advances are procured at the expense of first securing 
 to the proposed lender a j) re-existing debt (/i). But a 
 
 (/) Stat. 32 & 33 Vict. c. 71, {];) Pcrmell v. Reynolds, 11 C. 
 
 8. G. B., N. S. 709 ; Ex parte Winder, 
 
 {g) Sect. 7. re Winstanley, C. J. B., 1 Ch. D. 
 
 (/(.) Ante, p. 201, note (o). 290 ; affirmed on appeal. Ex parte 
 
 (i) BittJestone v. Cook, 6 E. & Sheen, re Winstanley, 1 Ch. D. 
 
 B. 296; Ex parte Jlauxwell, re .560; Ex parte Ellis, in re Ellis, 2 
 
 Hemingway, 23 Ch. D. 626, 638. Ch. D. 797 ; Ex parte Games, in
 
 OF 15AXKRUPTCV. 
 
 209 
 
 mortgage of all or nearly all the debtor's property for 
 simply securing a pre-existing debt, is evidently a fraud 
 on the other creditors, and as such is void as a fraudu- 
 lent conveyance (/). Not so, however, where a sub- 
 stantial portion of the debtor's property is excepted 
 from the security, and the conveyance is made under 
 pressure {m). 
 
 petition. 
 
 When a debtor has committed an act of bankruptcy, Proceedings 
 proceedings in bankruptcy must be duly instituted ruptcy'^' 
 against him, in order that he may be adjudged bank- 
 rupt. The first step in these proceedings has always 
 been a petition, formerly addressed to the Lord Chan- Bankruptcy 
 eellor(«), afterwards to the Coui't of Bankruptcy (o), 
 and now to the High Com-t of Justice, or to a County 
 Court having bankruptcy jurisdiction {p). Formerly 
 such a petition could only be presented by a creditor (5-). 
 But the provisions of an Act of the year 1844, enabled 
 a man to present a bankruptcy petition against him- 
 self (r) ; and all the subsequent bankruptcy statutes 
 have contained similar provisions (.s). The Bankruptcy 
 Act, 1883, now enacts that, subject to the conditions 
 therein specified, if a debtor commits an act of bank- 
 ruptcy, the Court may, on a IxoiJirupfoj petition, being 
 
 re Bamford, 12 Ch. D. 314 ; Ex 
 parte TFilkinso)/, re Berry, 22 Ch. 
 D. 788. 
 
 (l) Smith V. Camion, 2 E. & B. 
 35 ; Ex parte Foxley, in re Morse, 
 L. R., 3 Ch. 515; Ex parte Trevor, 
 in re Bimjhardt, 1 Ch. D. 297; 
 Ex parte Cooper, re Baum, 10 Ch. 
 D. 313 ; Ex parte Payne, re Cross, 
 1 1 Ch. D. 539 ; Ex parte Bann, 
 re Parker, 17 Ch. D. 26. 
 
 {m) Smith v. Tlmms, 1 H. & C. 
 849. 
 
 («) Stats. 13Eliz. c. 7, s. 2 ; 6 
 Geo. IV. c. 16, 8. 12 ; 1 & 2 
 Will. IV. c. 5G, s. 12; 2 Black. 
 
 W.P.P 
 
 Comm. 480. 
 
 (o) Stat3. 12 & 13 Vict. c. 106 
 s. 89 ; 24 & 25 Vict. c. 134, s. 88 
 32 & 33 Vict. c. 71, S3. 4, 8, 59. 
 
 {p) Stat. 46 & 47 Vict. c. 52^ 
 8. 92. 
 
 {q) See 2 Black. Comm. 480 
 Stat. 6 Geo. IV. c. 16. 
 
 (;•) Stat. 7&8Vict.c.96, s. 41 
 api^lying to traders only. 
 
 (.s) Stats. 12 & 13 Vict. c. 106, 
 8. 93 (as to traders) ; 24 & 25 Vict 
 c. 134, s. 86 (as to all debtors) 
 32 & 33 Vict. c. 71, s. 125, ante, 
 pp. 183,191.
 
 210 
 
 OF CTIOSES IX ACTION. 
 
 Eecoiving 
 order. 
 
 Commission 
 of liank- 
 ruptcy. 
 
 Court of 
 Eaukrnptcy 
 
 Fiat in 
 bankrui^tcy. 
 
 presented, eitlier by a creditor or by the debtor, make 
 an order, in the Act called a rcrrirhig order, for the 
 protection of the estate (/). 
 
 Formerly, on the presentation of a banlcruptcy peti- 
 tion, a commission of bankruptcy under the great 
 seal issued in every case, whereby certain persons were 
 appointed commissioners for the purpose of directing 
 that particular bankruptcy (^^). Subsequently a Court 
 of Bankruptcy was erected in London, and certain 
 fixed commissioners appointed, by any one of whom 
 the duties of a commissioner were to be performed in 
 all cases of bankruptcies in London (.r). The creditor 
 presented a formal petition to the Lord Chancellor, 
 whereupon a fiat in bankruptcy issued, whereby the 
 creditor was authorized to ' prosecute his comj^laint 
 against the trader in the Court of Bankruptcy, or 
 before one of the commissioners of that Court (//). 
 And more recently fixed commissioners were appointed 
 throughout the country, each of whom had a separate 
 district and formed a Court of record (~): But by the 
 Banki'uptcy Act, 1861, jurisdiction in bankruptcy was 
 vested in the judges of the County Courts, except those 
 of the metropolis {a) . And provision was made for the 
 reduction of the number of the London commissioners 
 to three (/>). And her Majesty was empowered, upon 
 any vacancy in the office of country commissioner, to 
 transfer, by Order in Council, the jurisdiction of such 
 commissioner to any of the judges of the County Courts 
 \\dtliin the district (r). The Banlmiptcy Act, 1869, 
 abolished all the London commissioners and also all the 
 
 (0 Stat. 46 & 47 Vict. c. 52, s. 5. 
 
 («<) Stat. 13 Eliz. c. 7, s. 2 ; 2 
 Black. Comm. 480 ; 6 Geo. IV. 
 c. 16, s. 12. 
 
 {x) Stat. 1 & 2 Will. IV. c. 56. 
 
 (V) Sect. 12. 
 
 (r) Stats. 5 & evict, c. 122, 
 s. 59 et seq. ; 12 & 13 Vict. c. 106, 
 ss. 6—11. 
 
 (ff) Stat. 24 k 25 Vict. c. 134, 
 s. 3. 
 
 {V) Sect. 2. 
 
 (f) Sect. 4.
 
 OV IJANKRUPTCY. 211 
 
 country district Courts, and provided for the appoint- 
 ment of a cliief judge in tlie London Bankruptcy Court, 
 and for the transfer of all the country business to the 
 County Courts (d) ; subject to powers reserved to the 
 Lord Chancellor to exclude any of them from juris- 
 diction in bankruptcy (<^'). Under these powers several 
 of the County Courts were excluded from bankruptcy 
 jurisdiction (,/'). By the Supreme Court of Judicature The London 
 Act, 1873 ({/), the London Court of Bankruptcy was Bankruptcy, 
 united with the Supreme Court of Judicature thereby 
 established. But this was repealed by the Supreme 
 Court of Judicature Act, 187o {//) ; and the London 
 Court of Bankruptcy continued to form a distinct Com-t 
 until the end of the year 1883. The Bankruptcy Act, 
 1883 (/), now provides that the Courts having juris- Jurisdiction 
 diction in bankruptcy shall be the High Court of now^exerSsed 
 Justice and the County Courts. But the Lord Chan- ^y High 
 
 ,, p ... , Court and 
 
 cellor may from time to time, by order under his hand. County 
 exclude any County Court from having jurisdiction in ^°"^'*^^- 
 bankruptcy, and for the purposes of bankruptcy juris- 
 diction may attach its district or any part thereof to 
 the High Court, or to any other County Court or 
 Courts (/•). By the same Act (/) the London Bank- 
 ruptcy Court was united and consolidated with the 
 Supreme Court of Judicature, and the jurisdiction of 
 the Jjondon Court of Bankruptcy was transferred to 
 the High Court of Justice. Tlie Act provides {»i) that Powers of 
 a County Court shall, for the purposes of its bank- Court.'^ 
 ruptcy jurisdiction, in addition to the ordinary powers 
 of the Court, have all the powers and jurisdiction of 
 the High Court. 
 
 (d) Stat. 32 & 33 Vict. c. 71, (/') Stat. 38 & 39 Vict. c. 77, 
 
 ss. 59, 60, 128, 130. s. 9. 
 
 {c) Sect. 79. (0 Stat. 46 & 47 Vict. c. 52, 
 
 (/) Order of Lord Hatherlcy ss. 92 («ub-s. 1), 168. 
 of 1st January, 1867. (A) Sect. 92, sub-s. 2. 
 
 iff) Stat. 36 & 37 Vict. c. 06, (/) Sect. 93. 
 
 s. 3. {»)) Sect. 100. 
 
 p2
 
 212 
 
 or CHOSES IN ACTION. 
 
 Adjudication 
 under Acts of 
 1819, 1861 
 and 1869. 
 
 Proceedings 
 under Act of 
 1883. 
 
 Receiving 
 order. 
 
 First meeting 
 of creditors. 
 
 Debtor's 
 statement of 
 affairs. 
 
 Public exami- 
 nation of 
 debtor. 
 
 Adjudication 
 of bank- 
 ruptcy. 
 
 The fiat in bankruptcy (n) was abolislied by tlie Act 
 of 1840 (r>). And under the Acts of 1849, 1861 and 
 1869, on due proof of the debt, the act of bankruptcy 
 and, where necessary, of the trading {p), the trader or 
 debtor was adjudged a bankrupt by the Court to which 
 the petition was presented (17) . Under the present law, the 
 proceedings are different. The first order made, on the 
 presentation of a bankruptcy petition under the Act of 
 1883, is a receiving order (>■). As soon as may be after 
 the making of a receiving order, a Jirst meetinij of 
 creditors is held in accordance with the Act (-s). And a 
 debtor against whom a receiving order is made, is re- 
 quired to make out a statement of his affairs in the pre- 
 scribed form(/); and also has to undergo apuh/ic exami- 
 nation in Court with regard to his affairs {a). And the 
 Act provides (.r) that, if the creditors at the first meet- 
 ing, 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 compo- 
 sition 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. The Bankruptcy Rules, 1883, pro- 
 vide (//) that, 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. 
 The Rules also provide (::) that, when a receiving order 
 has been made, and no creditors attend at the time and 
 place appointed for the first meeting, or one adjourn- 
 
 («) Ante, p. 210. 
 
 (0) Stat. 12 & 13 Vict. c. 106, 
 s. 89. 
 
 (p) See ante, pp. 198, 199. 
 
 ((/) See stats. 12 & 13 Vict. 
 c. 106, s. 101 ; 24 & 25 Vict. 
 c. 134, s. 70; 32 &• 33 Vict. c. 71, 
 
 {>■) Stat. 46 & 47 Vict. c. 
 !. 5, 7, S. 
 (s) Sect. 15. 
 (0 Sect. 16. 
 («) Sect. 17. 
 (.r) Sect. 20. 
 (y) Rule 155. 
 (r) Rule 156. 
 
 52,
 
 Ol' IJANKKIPTCV. 213 
 
 ment thereof, or if sufficient creditors do not attend 
 there to pass a special resolution, or where the official 
 receiver satisfies the Court that the debtor has absconded, 
 or that the debtor does not intend to propose a compo- 
 sition or scheme, or in any of the other cases mentioned 
 in the Act, the Court may, cither on the application of 
 a creditor, or of the official receiver, forthwith adjudge 
 the debtor bankrupt. Notice of every order adjudg- Advcrtise- 
 ing a debtor bankrupt must be duly gazetted and ad- dication of*'^" 
 
 Vertised(r/). bankruptcy. 
 
 The first proceedings in bankruptcy are now regu- First proceed- 
 latcd by the following provisions of the Bankruptcy A^t^of'fsss 
 Act, 1883 {b) :— 
 
 (Sect. 6, sub-s. 1.) A creditor shall not be entitled to Conditions on 
 present a bankruptcy petition against a debtor unless — may petUion.'^ 
 (a.) The debt owing by the debtor to the petitioning 
 creditor, or, if two or more creditors join in 
 the petition, the aggregate amount of debts 
 owing to the several petitioning creditors, 
 amounts to fifty pounds, and 
 (b.) The debt is a liquidated simi, payable either im- 
 mediately or at some cei-tain future time, and 
 (c.) The act of bankruptcy on which the petition is 
 grounded has occurred within three months 
 before the presentation of the petition, and 
 (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 
 dwelling-house or place of business in Eng- 
 land. 
 (Sub-s. 2.) If the petitioning creditor is a secured Secured 
 creditor, he must, in his petition, either state that he is 
 willing to give up his security for the benefit of the 
 creditors in the event of the debtor being adjudged 
 
 {a) Stat. 46 & 47 Vict. c. 52, Eides, 1883, No. 157. 
 B. 20, sub-s. 2 ; Bankruptcy (i) Stat. 4G & 47 Vict. c. 52,
 
 214 
 
 OF CllOSES IN ACTIOX. 
 
 Proceedings 
 and order on 
 creditor's 
 petition. 
 
 bankrupt, or give au estimate of the value of Hs se- 
 curity. In the latter ease, he may he admitted as a 
 petitioning creditor to the extent of the balance of the 
 debt due to him, after deducting the value so estimated 
 in the same manner as if he were an unsecured cre- 
 ditor {(■). 
 
 (Sect. 7, sub-s. 1.) A creditor's petition shall be 
 verified by affidavit of the creditor, or of some person 
 on his behalf having knowledge of the facts, and served 
 in the prescribed manner (d) . 
 
 (Sub-s. 2.) At the hearing the Court shall require 
 proof of the debt of the petitioning creditor of the 
 service of the petition, and of the act of bankruptcy, or, 
 if more than one act of bankruptcy is alleged in the 
 petition, of some one of the alleged acts of bankruptcy, 
 and, if satisfied Avith the proof, may make a receiving 
 order in pursuance of the petition (e). 
 
 (Sub-s. 3.) If the Coiu-t is not satisfied with the 
 proof of the petitioning creditor's debt, or of the act of 
 bankruptcy, or of the service of the petition, or is 
 satisfied by the debtor that he is able to pay his debts, 
 or that for other sufficient cause no order ought to be 
 made, the Court may dismiss the petition. 
 
 (Sub-s. 4.) When the act of bankrup)tcy relied on is 
 non-compliance with a bankruptcy notice to pay, secure, 
 or compound for a judgment debt, the Court may, if it 
 thinks fit, stay or dismiss the petition on the ground 
 that an appeal is pending from the judgment. 
 
 (Sub-s. 5.) Where the debtor appears on the petition, 
 and denies that he is indebted to the petitioner, or that 
 he is indebted to such an amount as would justify the 
 
 (c) As to the conditions pre- 
 viously required, see stats. 32 & 
 33 Vict. c. 71, s. 6 ; 24 & 25 Vict. 
 0. 134, ss. 70, 89 ; 12 & 13 Vict. 
 0. 106, ss. 88—91 ; 6 Geo. IV. 
 c. 16, s. 15 ; 2 Black. Comm. 
 
 480. 
 
 (d) See Bankruptcy Eules, 
 1883, Nos. 129—132, 136, 144 
 —148. 
 
 (f) See rr. 135, 137—141, 149.
 
 01<' BA-NKHl I'TfY. 215 
 
 petitioner in presenting a petition against him, tlio Court, 
 on sucli security (if any) being given as the Court may 
 require for payment to the petitioner of any debt which 
 may bo established against him in due coiu'se of law, 
 and of the costs of establishing the debt, may instead of 
 dismissing the petition stay all proceedings on the peti- 
 tion for such time as may be required for trial of the 
 question relating to the debt (,/'). 
 
 (Sub-s. 0.) Where proceedings are stayed, the Court 
 may, if by reason of the delay caused by the stay of 
 proceedings or for any other cause it thinks just, make 
 a receiving order on the petition of some other creditor, 
 and shall thereupon dismiss, on such terms as it thinks 
 just, the petition in which proceedings have been stayed 
 as aforesaid. 
 
 (Sub-s. 7.) A creditor's petition shall not, after pre- 
 sentment, be withdrawn, without the leave of the Court. 
 
 (Sect. 8.) A debtor's petition shall allege that the Debtor's pcti- 
 dobtor is unable to pay his debts, and the presentation Ji^JJ.g'JJIJ^ °^'^*''''' 
 thereof shall be deemed an act of bankruptcy without 
 the previous filing by the debtor of any declaration of 
 inability to pay his debts, and the Court shall there- 
 upon make a receiving order {(J). A debtor's petition 
 shall not, after presentment, be withdrawn without the 
 leave of the Court. 
 
 (Sect. 95, sub-s. 1.) If the debtor against or by whom Petition, 
 a bankruptcy petition is presented has resided or carried present^ed 
 on business within the London bankruptcy district as 
 defined by this Act for the greater part of the six 
 months immediately preceding tho presentation of the 
 petition, or for a longer period during those six months 
 than in the district of any County Court, or is not resi- 
 dent in England, or if the petitioning creditor is unable 
 to ascertain the residence of the debtor, the petition 
 shall be presented to the High Court. 
 
 (/) See IT. 1 12, 143. (<?) See r. 149.
 
 21G 
 
 OF CHOSES IN ACTION. 
 
 (Sub-s. 2.) In any otlier case the petition shall he 
 presented to the County Court for the district in which 
 the debtor has resided or carried on business for the 
 longest period during the six months immediately pre- 
 ceding the presentation of the petition. 
 
 (Sub-s. 3.) Nothing in this section shall invalidate a 
 proceeding by reason of its being taken in a wrong 
 Court (//). 
 
 Attestation. 
 
 Deposit. 
 
 Receiving 
 order. 
 
 Effect of 
 receiving 
 order. 
 
 By the Bankruptcy Eules, 1883, every bankruptcy 
 petition must be attested by a solicitor, or a justice of 
 the peace, or an official receiver, or a registrar of the 
 Court, if attested in England ; or by a judge, or a 
 magistrate, or a British consul or vice-consul, or a 
 notary public, if attested out of England (/). And 
 upon the presentation of a petition either by the debtor 
 or by a creditor, the petitioner must deposit with the 
 official receiver the sum of 51., and such further sum (if 
 any) as the Court may from time to time direct, to 
 cover the fees and expenses to be incurred by the 
 official receiver {/c) . 
 
 As we have seen, under the Act of 1883, then, the 
 first order made is a receiving order, not an order for 
 adjudication of bankruptcy, as was made under the 
 previous Acts (/). Section 9 of the Act (m), enacts 
 that on the making of a receiving order an official 
 receiver shall be thereby constituted receiver of the 
 property of the debtor, and thereafter, except as directed 
 by the Act, no creditor to whom the debtor is indebted 
 in respect of any debt provable in bankruptcy shall 
 have any remedy against the property or person of the 
 debtor in respect of the debt, or shall commence any 
 action or other legal proceedings unless with the leave 
 
 (/() See Bankruptcy Rules, 1883, 
 No. 126. 
 
 (i) Rule 127. 
 
 (k) Rule 128. 
 
 (l) Ante, p. 212. 
 
 (m) Stat. 46 & 47 Vict. c. 52.
 
 OF hamvju I'Tcv. 217 
 
 of the Court and on such terms as the Court may im- 
 pose. But it is provided (n) that this section shall not 
 affect the power of any secured creditor to realize or Seemed 
 otherwise deal with his security in the same manner as ^^^ ' °^" 
 he would have been entitled to realize or deal with it if 
 this section had not been passed. By the Act of 188;}, Offiuiid 
 the Board of Trade are empowered to appoint such ^''''^*^^^'^^"^- 
 persons as they may think fit to be official receivers of 
 debtors' estates (o). An official receiver for the bank- 
 ruptcy district of the High Court, and official receivers 
 for the bankruptcy districts within the jurisdiction of 
 the County Courts have been appointed accordingly by 
 order of the Board of Trade (p). Official receivers act 
 under the general authority and directions of the Board 
 of Trade, but are also officers of the Courts to which 
 they are respectively attached (o). The official re- Special 
 ceiver is empowered, on the application of any creditor, manager, 
 to appoint a special manager of the debtor's estate 
 to act until a trustee is appointed (q). The Court has Interim 
 power at any time after the presentation of a bank- ^'®^®^^^''- 
 ruptcy petition, and before a receiving order is made, 
 to appoint the official receiver to be interim receiver of 
 the debtor's property. And, at any time after the Staying 
 presentation of such a petition, the Court may stay clf^^J!^-^l°' 
 any action, execution, or other legal process against the debtor, 
 property or person of the debtor (r). Notice of every Advcrtise- 
 receiving order is required to be duly gazetted and rece\vino- 
 advertised [s) . order. 
 
 The most important provisions made by the Act of Proceedings 
 1883 with respect to the proceedings consequent upon ordTr!^''^'''"'^ 
 the making of a receiving order against a debtor, are 
 contained in the following sections of the Act (t) : — 
 
 (m) Sect. 9, sub-s. 2. (r) Sect. 10 ; eee Bankruptcy 
 
 (o) Sect. G6. Rules, 1883, No. 152. 
 
 (p) See Order of 1st January, [s) Sect. 13; Bankruptcy Rules, 
 
 1884, W. N. 5th January, 1884. 1883, No. 153. 
 
 (^) Stat. 46 & 47 Vict. c. 52,3. 12. {i) Stat. 46 & 47 Vict. c. 52; 
 
 Bankruptcy Rules, 1883.
 
 218 
 
 OF CH0SE8 IN ACTIOX. 
 
 First and 
 other meet- 
 ings of 
 creditors. 
 
 Debtor's 
 statemeut 
 of affairs. 
 
 Public exa- 
 mination 
 of debtor. 
 
 (Sect. 15, 6iib-s. 1.) As soon as may be after the 
 making of a receiving order against a debtor, a general 
 meeting of liis creditors (in this Act referred to as the 
 first meeting of creditors), shall be held for the purpose 
 of considering whether a proposal for a composition or 
 scheme of arrangement shall be entertained, or whether 
 it is expedient that the debtor shall be adjudged bank- 
 rujit, and generally as to the mode of dealing with the 
 debtor's property {u). 
 
 (Sect. 16, sub-s. 1.) Where a receiving order is made 
 against a debtor, he shall make out and submit to the 
 official receiver a statement of and in relation to his 
 affairs in the prescribed form, verified by affidavit, and 
 showing the particulars of the debtor's assets, debts, and 
 liabilities, the names, residences, and occupations of his 
 creditors, the securities held by them respectively, the 
 dates when the securities were respectively given, and 
 such further or other information as may be prescribed 
 or as the official receiver may require (v). 
 
 (Sub-s. 2.) The statement shall be so submitted within 
 the following times, namely : 
 
 (i.) If the order is made on the petition of the debtor, 
 within three days from the date of the order. 
 
 (ii.) If the order is made on the petition of a cre- 
 ditor, within seven days from the date of the 
 order. 
 But the Court may, in either case, for special reasons, 
 extend the time. 
 
 (Sub-s. 3.) If the debtor fails withoiit reasonable 
 excuse to comply with the requirements of this section, 
 the Court may, on the application of the official receiver, 
 or of any creditor, adjudge him bankrupt. 
 
 (Sect. 17, sub-s. 1.) Where the Court makes a re- 
 ceiving order, it shall hold a public sitting, on a day to 
 be appointed by the Court {/c), for the examination of 
 
 (m) The procedure with regard 
 to meetings of creditors is regu- 
 lated bv the fii-st schedule of the 
 
 Act, and rules (1883) 184—190. 
 (v) See rule (1883) 168. 
 («■) See rules (1883) 5, 150.
 
 OK BAN Kin ricv. 219 
 
 the debtor, and the debtor shall attend thereat, and 
 shall be examined as to his conduct, dealings, and 
 property. 
 
 (Sub-s. 2.) The examination shall be held as soon as 
 conveniently may be after the expiration of the time 
 for the submission of the debtor's statement of affairs. 
 
 (Sub-s. 3.) The Court may adjourn the examination 
 from time to time. 
 
 (Sub-s. 4.) Any creditor who has tendered a proof, or 
 his representative authorised in Amting, may question 
 the debtor concerning his affairs and the causes of his 
 failure. 
 
 (Sub-s. 5.) The official receiver shall take part in the 
 examination of the debtor ; and for the purpose thereof, 
 if specially authorised by the Board of Trade, may 
 employ a solicitor with or without counsel. 
 
 (Sub-s. G.) If a trustee is aj^pointed before the con- 
 clusion of the examination he may take part therein. 
 
 (Sub-s. 7.) The Court may put such questions to the 
 debtor as it may think expedient. 
 
 (Sub-s. 8.) The debtor shall be examined upon oath, 
 and it shall be his duty to answer all such questions as 
 the Court may put or allow to be put to him. Such 
 notes of the examination as the Cornet thinks proper 
 shall be taken down in A\'riting, and shall be read over 
 to and signed by the debtor, and may thereafter be used 
 in evidence against liim ; they shall also be open to the 
 insj^ection of any creditor at all reasonable times. 
 
 (Sub-s. 9.) When the Court is of opinion that the 
 affairs of the debtor have been sufficiently investigated, 
 it shall, by order, declare that his examination is con- 
 cluded, but such order shall not be made until after the 
 day appointed for the fu'st meeting of creditors. 
 
 A debtor, against whom a receiving order is made, is 
 not necessarily adjudged bankrupt. His creditors may 
 entertain a proposal for a composition or scheme of
 
 220 
 
 OF (.'HOSES IN ACTIOX. 
 
 Powei' for 
 creditors to 
 accept and 
 Court to 
 approve com- 
 position or 
 arransfement. 
 
 arrangement in aecordance witli the Act of 18S3 ; and 
 if tlie composition or scheme be approved by the Court, 
 the affairs of the debtor may be liquidated without any 
 adjudication of bankruptcy. This is regulated by the 
 following provisions of the Act : — 
 
 (Sect. 18, sub-s. 1.) The creditors may at the first 
 meeting or any adjournment thereof, by special resolu- 
 tion, resolve to entertain a proposal for a composition in 
 satisfaction of the debts due to them from the debtor, or 
 a proposal for a scheme of arrangement of the debtor's 
 affairs. 
 
 (Sub-s. 2.) The composition or scheme shall not be 
 binding on the creditors unless it is confirmed by a 
 resolution passed (by a majority in number representing 
 three-foiu"ths in value of all the creditors who have 
 proved) at a subsequent meeting of the creditors, and is 
 ap23roved by the Court. 
 
 Any creditor who has proved his debt may assent to 
 or dissent from such composition or scheme by a letter 
 addressed to the official receiver in the prescribed form, 
 and attested by a witness, so as to be received by such 
 official receiver not later than the day preceding such 
 subsequent meeting, and such creditor shall be taken as 
 being present and voting at such meeting. 
 
 (Sub-s. 3.) The subsequent meeting shall be sum- 
 moned by the official receiver by not less than seven 
 days' notice, and shall not be held until after the public 
 examination of the debtor is concluded. The notice 
 shall state generally the terms of the proposal, and shall 
 be accompanied by a report of the official receiver thereon. 
 
 (Sub-s. 4.) The debtor or the oflficial receiver may, 
 after the composition or scheme is accepted by the 
 creditors, apply to the Court to approve it, and notice 
 of the time appointed for hearing the application shall 
 be given to each creditor who has proved. 
 
 (Sub-s. 5.) The Court shall, before approving a com- 
 position or scheme, hear a report of the official receiver
 
 OF BANKRrPTCY. 221 
 
 as to the terms of the composition or scheme and as to 
 the conduct of the debtor, and any objections which may 
 be made by or on behalf of any creditor. 
 
 (Sub-s. 6.) If the Court is of opinion that the terms 
 of the composition or scheme are not reasonable, or are 
 not calculated to benefit the general body of creditors, 
 or in any case in which the Court is required under this 
 Act where the debtor is adjudged bankrupt to refuse his 
 discharge, the Court shall, or if any such facts are 
 proved as would under this Act justify the Coui't in 
 refusiug, qualifying, or suspending the debtor's dis- 
 charge, the Com-t may, in its discretion, refuse to 
 approve the composition or scheme. 
 
 (Sub-s. 7.) If the Coui't approves the composition or 
 scheme, the approval may be testified by the seal of the 
 Court being attached to the instrument containing the 
 terms of the composition or scheme, or by the terms 
 being embodied in an order of the Court. 
 
 (Sub-s. 8.) A composition or scheme accepted and 
 approved in pursuance of this section shall be binding 
 on all the creditors so far as relates to any debts due to 
 them from the debtor and provable in bankruptcy. 
 
 (Sub-s. 9.) A certificate of the official receiver that a 
 composition or scheme has been duly accepted and ap- 
 proved shall, in the absence of fraud, be conclusive as 
 to its validity. 
 
 (Sub-s. 10.) The provisions of a composition or scheme 
 under this section may be enforced by the Coui't on 
 application by any person interested, and any dis- 
 obedience of an order of the Court made on the appli- 
 cation shall be deemed a contempt of Court. 
 
 (Sub-s. 11.) If default is made in payment of any 
 instalment due in pm'suance of the composition or 
 scheme, or if it appears to the Court, on satisfactory 
 evidence, that the composition or scheme cannot in con- 
 sequence of legal difficidties, or for any suflicient cause, 
 proceed without injustice or undue delay to the creditors
 
 222 OF CHOSES IN ACTTON. 
 
 or to tlie debtor, or that the approval of the Court was 
 obtained by fraud, tlio Court may, if it thinks fit, on 
 application by any creditor, adjudge the debtor bankrupt, 
 and annul the composition or scheme, but without pre- 
 judice to the validity of any sale, disposition, or pay- 
 ment duly made, or thing duly done under or in pur- 
 suance of the composition or scheme. Where a debtor 
 is adjudged bankrupt under this sub-section any debt 
 provable in other respects, ^yhich has been contracted 
 before the date of the adjudication, shall be provable 
 in the bankruptcy. 
 
 (Sub-s. 12.) If, under or in pursuance of a composi- 
 tion or scheme, a trustee is appointed to administer the 
 debtor's property or manage his business. Part Y. {x) of 
 this Act shall apply to the trustee as if he were a 
 trustee in a bankruptcy, and as if the terms "bank- 
 ruptcy," "bankrupt," and "order of adjudication" in- 
 cluded respectively a composition or scheme of arrange- 
 ment, a compounding or arranging debtor, and order 
 approving the composition or scheme. 
 
 (Sub-s. 13.) Part III. (//) of this Act shall, so far as the 
 nature of the case and the terms of the composition or 
 scheme admit, apply thereto, the same interpretation 
 being given to the words " trustee," " bankruptcy," 
 " bankrupt," and " order of adjudication " as in the 
 last preceding sub-section. 
 
 (Sub-s. 14.) No composition or scheme shall be ap- 
 proved by the Court which does not provide for the 
 payment in priority to other debts of all debts directed 
 to be so paid in the distribution of the property of a 
 bankrupt. 
 
 (Sub-s. 15.) The acceptance by a creditor of a com- 
 position or scheme shall not release any person who 
 under this Act would not be released by an order of 
 discharge if the debtor had been adjudged banki'upt. 
 Effect of (Sect. 19.) Notwithstanding the acceptance and ap- 
 
 (.r) Sects. 72 — 91; see below. (y) Sect.s. 37 — 65; see below.
 
 OF HAXKllTPTCY. 223 
 
 proval of a compositiou or sclieme, sucli composition or compositiou 
 sclieniG shall not bo binding on any creditor so far as °^ ^° ®™°' 
 regards a debt or liability from which, under the pro- 
 visions of this Act, the debtor would not bo discharged 
 by an order of discharge in bankruptcj^ unless the cre- 
 ditor assents to the composition or scheme. 
 
 The following provisions of the Bankruptcy Rules, 
 1883, Avith respect to compositions and schemes of 
 arrangement under the Act, are important : — 
 
 (Rule 1G3.) When a composition or scheme is sanc- 
 tioned, the official receiver shall forthwith put the 
 debtor (or, as the case may be, the trustee under the 
 composition or scheme) into possession of the debtor's pro- 
 perty. The Court shall also rescind the receiving order. 
 
 (Rule 164.) Where a composition or scheme is sanc- 
 tioned, and default is made in any payment thereunder, 
 either by the debtor or the trustee (if any) , no action to 
 enforce such payment shall lie, but the remedy of any 
 person aggrieved shall be by application to the Court. 
 
 (Rule 165.) Where a composition or scheme is an- 
 nulled, the property of the debtor shall, unless the 
 Court otlierwise directs, forthwith vest in the official 
 receiver to whom the estate was originally assigned, 
 without any special order being made or necessary. 
 
 A debtor's affairs may also be liquidated under the 
 Act of 1883 by means of a composition or scheme of 
 arrangement, accepted b}' the creditors and approved by 
 the Court, after an adjudication of bankruptcy. By sect. Power to 
 26, where a debtor is adjudged bankrupt, the creditors ^o^^itioii^or' 
 may, if they think fit, at any time after the adjudication, scheme after 
 by special resolution, resolve to entertain a proposal for adjudication. 
 a composition in satisfaction of the debts due to them 
 under the bankruptcy, or for a scheme of arrangement 
 of the bankrupt's affairs ; and thereupon the same pro- 
 ceedings shall be taken and the same consequences shall 
 ensue as in the case of a composition or sclieme accepted
 
 224 
 
 OF CHOSES IN ACTIOX. 
 
 Vesting of 
 bankrupt's 
 property. 
 
 AssiLj-nees. 
 
 before adjudication. If the Court approves the com- 
 position or scheme it may make an order annulling the 
 bankruptcy, and vesting the property of the bankrupt 
 in him or in such other person as the Court may appoint, 
 on such terms, and subject to such conditions, if any, 
 as the Court may declare (;:). But the Court may ad- 
 judge the debtor bankrupt, and annul the composition 
 or scheme, as in the case of a composition or scheme 
 approved before adjudication («). 
 
 "When a debtor is adjudged bankrupt {b), the Act 
 of 1883 provides ((') that thereupon the property of the 
 bankrupt shall become divisible among his creditors, 
 and shall vest in a trustee. The bankruptcy statutes of 
 Henry YIII. {d) and Elizabeth (c), gave the commis- 
 sioners (/') power to sell or otherwise to deal with all the 
 bankrupt's property for the benefit of his creditors. A 
 statute of Greorge II. (cj) provided that the commissioners 
 should assign the bankrupt's estate and effects to as- 
 signees chosen by the creditors. From that time until 
 the year 1831 the estate of a bankrupt was always ex- 
 pressly conveyed by the commissioners to the assignees (/?). 
 The Act to establish a Court in bankruptcy, and the 
 Acts of 1849 and 1861, provided that the estate of a bank- 
 rupt should vest in the assignees without any exj^ress 
 conveyance (i). Under these Acts (A-) assignees were of 
 two kinds ; official assignees and assignees chosen by 
 
 {z) Str.t. 46 & 47 Vict. c. 52, 
 s. 20, sub-s. 2. 
 
 (a) Sect. 26, sub-s. 3 ; see 
 sect. 18, sub-s. 11, ante, p. 221. 
 
 (b) See ante, p. 212. 
 
 (c) Stat. 46 & 47 Vict. c. 52, 
 s. 20. 
 
 {(I) 34 & 35 Hen. VIII. c. 4, 
 s. 1. 
 
 {<') 13 Eliz. c. 7, 8. 2. 
 (/) A»(e, p. 210. 
 
 iff) Stat. 5 Geo. II. c. 30, 
 83. 26, 30. 
 
 (A) See Stat. 6 Geo. IV. c. 16, 
 ss. 61, 63, 64. 
 
 (i) See stats. 1 & 2 Will. IV. 
 c. 56, ss. 25, 26; 12 & 13 Vict, 
 c. 106, ss. 14], 142; 24 & 25 
 Vict. c. 134, s. 117. 
 
 {k) See stats. 1 & 2 Will. IV. 
 c. 56, s. 22 ; 12 & 13 Vict. c. 106, 
 ss. 38—45, 102, 139; 24 & 25 
 Vict. c. 134, ss. 108, 116—129.
 
 OF HANKRUPTCY. 225 
 
 the creditors. The official jissignees were officers of the Official 
 Bankruptcy Court, one of whom was appointed by the ^^®'o"'^^- 
 Court to act for every bankruptcy. His duty formerly 
 was to receive all the personal estate and effects, and the 
 rents and profits of the real estate, and the proceeds of 
 the sale of the estate and effects, real and personal, of the 
 bankrupt; and after the appointment of the creditors' 
 assignees, he continued to be an assignee jointly with 
 them. But the Bankruptcy Act, 1861, provided that, 
 at the appointment of the creditors' assignee, all the 
 estate, both real and personal, of the bankrupt should 
 be divested out of the official assignee and vested in 
 the creditors' assignee (/). The management of the Creditors 
 estate was then vested in the creditors' assignee ; except " ° 
 as to debts duo to the estate not exceeding 10/., as to 
 which the official assignee was to be deemed the sole 
 assignee of the estate, notwithstanding the appointment 
 of a creditors' assignee {m). The Bankruptcy Act, 
 1869 {li), abolished the official assignees, and substituted 
 for the creditors' assignees a trustee to be appointed at Trustee. 
 a general meeting of the creditors. Under the Act of 
 1883 the property of a bankrupt vests in the trustee for 
 the purposes of the Act {<>), who is almost always ap- 
 pointed by the creditors ( p) ; and the estate of the 
 bankrupt is administered by the trustee, under the con- 
 trol of a com )» it fee of iii^peetion chosen from among the Committee of 
 creditors (y), subject to any directions that may be ^ ^ ^ 
 given by resolution of the creditors at any general 
 meeting (>•). And the administration of the estates of 
 bankrupts is placed under the supervision of the Board 
 of Trade (-s). The most important provisions of the 
 
 (0 Stat. 24 & 25 Vict. c. 131, («) Stat. 46 & 47 Vict. c. 52, 
 
 8. 117. s. 54. 
 
 (w) Sect. 128. [p) See sect. 21. 
 
 («) Stat. 32 & 33 Vint. c. 71, [q) See sects. 22, 56, 57, 89. 
 
 ss. 14, 17. {>•) Sect. 89. 
 
 (a) Sects. 74--S1, 91. 
 
 W.P.P. Q
 
 property. 
 
 226 OF CHOSES IN ACTION. 
 
 Administra- Bankruptcy Act, 1883 (/), with regard to the appoint- 
 rupt's estate' ™*?i^t of a trustee in bankruptcy and of a committee of 
 under Act of inspection, and the vesting and administration of a 
 banki'upt's property, are cjuoted below. They are pre- 
 ceded by the provisions made by the Act for securing 
 discovery and realization of all the property of a debtor, 
 against whom a receiving order has been made. 
 
 Duties of (Sect. 2-i, sub-s. 1.) Every debtor against whom a 
 
 discovery ^and I'sceiving Order {h) is made shall, unless prevented by 
 realization of sickness or other sufficient cause, attend the first meet- 
 ing of his creditors (,r), and shall submit to such exami- 
 nation and give such information as the meeting may 
 require. 
 
 (Sub-s. 2.) He shall give such inventory of his pro- 
 perty, such list of his creditors and debtors, and of the 
 debts due to and from them respectively, submit to 
 such examination in respect of his property or his cre- 
 ditors, attend such other meetings of his creditors, wait 
 at such times on the official receiver, special manager or 
 trustee, execute such powers of attorney, conveyances, 
 deeds and instruments, and generally do all such acts 
 and things in relation to his property and the distribu- 
 tion of the proceeds amongst his creditors, as may be 
 reasonably required by the official receiver, special 
 manager or trustee, or may be prescribed by general 
 rules, or be directed by the Cornet by any special order 
 or orders made in reference to any particular case, or 
 made on the occasion of any special application by the 
 official receiver, special manager, trustee, or any creditor 
 or person interested. 
 
 (Sub-s. 3.) He shall, if adjudged bankrupt, aid, to 
 the utmost of his power, in the realisation of his pro- 
 perty and the distribution of the proceeds among his 
 creditors. 
 
 {/) Stat. 46 & 47 Vict. c. 52. (.*) Ante, pp. 212, 217. 
 
 («) Aiitf,\:)i>. 209, 210,212, 21G.
 
 OF BANKRUPTCY. 227 
 
 (Sub-s. 4.) If a debtor ■wilfully fails to perform the 
 duties imposed on him by this section, or to deliver up 
 possession of any part of his property, which is di\dsible 
 amongst his creditors under this Act, and which is for 
 the time being in his possession or under his control, to 
 the official receiver or to the trustee, or to any person 
 authorised by the Com-t to take possession of it, he shall, 
 in addition to any other punishment to which he may 
 bo subject, be guilty of a contempt of com-t, and may be 
 punished accordingly. 
 
 (Sect. 25, sub-s. 1.) The Com-t may, by warrant Arrest of 
 addressed to any constable or prescribed officer of the certain cir- 
 Court, cause a debtor to be arrested, and any books, cumstances. 
 papers, money and goods in his possession to be seized, 
 and him and them to be safely kept as prescribed until 
 such time as the Com't may order under the foUowug 
 circmnstances : — 
 
 (a) If, after a bankruptcy notice has been issued 
 
 under this Act, or after presentation of a 
 bankruptcy petition by or against him, it 
 appears to the Court that there is probable 
 reason for believing that he is about to abscond 
 with a view of avoiding payment of the debt 
 in respect of which tlie banla-uptcy notice was 
 issued, or of avoiding service of a banla-uptcy 
 petition, or of avoiding appearance to any such 
 petition, or of avoiding examination in respect 
 of his affairs, or of otherwise avoiding, delay- 
 ing or embaiTassing proceedings in bankruptcy 
 against him. 
 
 (b) If, after presentation of a bauki'uptcy petition by 
 
 or against him, it appears to the Court that 
 there is probable cause for believing that he is 
 about to remove his goods with a view of pre- 
 venting or delaying possession being taken of 
 them by the official receiver or trustee, or thai 
 q2
 
 228 
 
 OF CIIOSES IN ACTION. 
 
 there is probable ground for believing that he 
 has concealed or is about to conceal or destroy 
 any of his goods, or any books, documents or 
 writings which might be of use to his creditors 
 in the course of his bankruptcy. 
 
 (c) If, after service of a bankruptcy petition on him, 
 
 or after a receiving order is made against him, 
 he removes any goods in his possession above 
 the value of five pounds, mthout the leave of 
 the official receiver or trustee. 
 
 (d) If, mthout good cause shown, he fails to attend 
 
 any examination ordered by the Court. 
 
 Provided that no arrest upon a bankruptcy notice 
 shall be valid and protected unless the debtor before or 
 at the time of his arrest shall be served with such bank- 
 ruptcy notice. 
 
 (Sub-s. 2.) No payment or composition made or 
 security given after arrest made under this section shall 
 be exempt from the provisions of this Act relating to 
 fraudulent preferences. 
 
 Discovery of 
 
 debtor's 
 
 property. 
 
 (Sect. 27, sub-s. 1.) The Com't may, on the applica- 
 tion of the official receiver or trustee, at any time after 
 a receiving order has been made against a debtor, simi- 
 mon before it the debtor or his wife, or any person 
 known or suspected to have in his possession any of the 
 estate or effects belonging to the debtor, or supposed to 
 be indebted to the debtor, or any person whom the 
 Court may deem capable of giving information respect- 
 ing the debtor, his dealings or property, and the Court 
 may require any such person to produce any docmuents 
 in his custody or power relating to the debtor, his deal- 
 ings or property. 
 
 (Sub-s. 2.) If any person so summoned, after having 
 been tendered a reasonable sum, refuses to come before 
 the Court at the time appointed, or refuses to produce 
 any such document, having no laAvful impediment made
 
 OF liANKUrPTCY. 229 
 
 known to the Court at the time of its sitting and allowed 
 by it, the Court may, by warrant, cause him to be ap- 
 prehended and brought up for examination. 
 
 (Sub-s. 3.) The Court may examine on oath, either by 
 word of mouth or by written interrogatories, any person 
 so brought before it concerning the debtor, his dealings 
 or property. 
 
 (Sub-s. 4.) If any person on examination before the 
 Court admits that he is indebted to the debtor, the Court 
 may, on the application of the official receiver or trustee, 
 order him to pay to the receiver or trustee, at such time 
 and in such manner as to the Court seems expedient, 
 the amount admitted, or any part thereof, either in full 
 discharge of the whole amount in question or not, as the 
 Com-t thinks fit, with or without costs of the examina- 
 tion. 
 
 (Sub-s. 5.) If any person on examination before the 
 Court admits that he has in his possession any property 
 belonging to the debtor, the Court may, on the applica- 
 tion of the official receiver or trustee, order him to deliver 
 to the official receiver or trustee such property, or any 
 part thereof, at such time, and in such manner, and on 
 such terms as to the Court may seem just. 
 
 (Sub-s. 6.) The Court may, if it think fit, order that 
 any person who if in England would be liable to be 
 brought before it under this section shall be examined 
 in Scotland or Ireland, or in any other place out of 
 England. 
 
 (Sect. 21, sub-s. 1.) Where a debtor is adjudged Appointment 
 bankrupt, or the creditors have resolved that he be ad- "* ti'ustee. 
 judged bankrupt, the creditors may, by ordinary re- 
 solution, appoint some fit person, whether a cretlitor or 
 not, to fill the office of trustee of the property of the 
 bankrupt ; or they may resolve to leave his aj^pointment 
 to the committee of inspection hereinafter mentioned. 
 
 (Sub-s. 2.) The person so appointed shall give security
 
 230 OF CHOSES IN ACTION. 
 
 in manner prescribed (//) to the satisfaction of the Board 
 of Trade, and tlie Board, if satisfied with the security, 
 shall certify that liis appointment has been duly made, 
 unless they object to the appointment on the ground 
 that it has not been made in good faith by a majority 
 in value of the creditors voting, or that the person ap- 
 pointed is not fit to act as trustee, or that his connexion 
 with or relation to the bankrupt or his estate or any 
 particular creditor makes it difficult for him to act with 
 impartiality in the interests of the creditors generally. 
 
 (Sub-s. 3.) Provided that where the Board make any 
 such objection they shall, if so requested by a majority 
 in value of the creditors, notifj' the objection to the 
 High Coiu't, and thereupon the High Com-t may decide 
 on its validity. 
 
 (Sub-s. 4.) The appointment of a trustee shall take 
 effect as- from the date of the certificate. 
 
 (Sub-s. 5.) The official receiver shall not, save as by 
 this Act provided, be the trustee of the bankrupt's pro- 
 perty. 
 
 (Sub-s. 6.) If a trustee is not ajDpointed by the cre- 
 ditors within four weeks from the date of the adjudica- 
 tion, or, in the event of negotiations for a composition 
 or scheme being pending at the expiration of those four 
 weeks, then within seven days from the close of those 
 negotiations by the refusal of the creditors to accept, or 
 of the Court to approve, the composition or scheme, the 
 official receiver shall report the matter to the Board of 
 Trade, and thereupon the Board of Trade shall appoint 
 some fit person to be trustee of the bankrupt's property, 
 and shall certify the appointment. 
 
 (Sub-s. 7.) Provided that the creditors or the com- 
 mittee of inspection (if so authorised by resolution of 
 the creditors) may, at any subsequent time, if they 
 think fit, appoint a trustee, and on the appointment 
 
 (y) See Banki-uptcy Rules, 1883, No. 253.
 
 OF li.VNKltUPTCV. 2-31 
 
 being made and certified tlio person appointed sliall 
 become trustee in the place of the person appointed by 
 the Board of Trade. 
 
 (Sub-s. 8.) When a debtor is adjudged bankrupt 
 after the fii-st meeting of creditors has been held, and a 
 trustee has not been appointed prior to the adjudication, 
 the official receiver shall forthwith summon a meeting 
 of creditors for the purpose of appointing a trustee. 
 
 (Sect. 22, sub-s. 1.) The creditors, qualified to vote. Committee of 
 may at their first or any subsecpient meeting, by resolu- ^^^^'^^ ^°°* 
 tion, appoint from among the creditors qualified to vote, 
 or the holders of general proxies or general powers of 
 attorney from such creditors, a committee of inspection 
 for the purpose of superintending the administration of 
 the bankrupt's property by the trustee. The committee 
 of inspection shall consist of not more than five nor less 
 than three persons. 
 
 (Sub-s. 9.) If there be no committee of inspection, 
 any act or thing or any direction or permission by this 
 Act authorised or required to be done or given by the 
 committee may be done or given by the Board of Trade 
 on the application of the trustee. 
 
 The creditors are empowered to appoint more persons Appointment 
 than one to the office of trustee (;:), and to remove a trustees, 
 trustee appointed by them {a). If the Board of Trade Removal of 
 are of opinion that a trustee appointed by the creditors t'^'^^tee. 
 is guilty of misconduct, or fails to perform his duties 
 under the Act, the Board may remove him fi"om his 
 office : but if the creditors, by ordinary resolution, dis- 
 approve of his removal, he or they may appeal against 
 it to the High Court (/;). 
 
 (Sect. 72, sub-s. 1.) Where the creditors appoint any Rcmuncra- 
 person to be a trustee of a debtor's estate, his remunera- trustee. 
 
 {z) Sect. 84. (i) Sect. 86, sub-s. 2. 
 
 (ff) Sect. 86, sub-s. 1.
 
 232 OK (HOSES IN ACTION. 
 
 tion (if any) shall be fixed by an ordinary resolution of 
 the creditors, or if the creditors so resolve by the com- 
 mittee of inspection, and shall be in the nature of a 
 commission or percentage, of which one part shall be 
 payable on the amount realised, after deducting any 
 sums paid to secured creditors out of the proceeds of 
 their securities, and the other part on the amount dis- 
 tributed in dividend. 
 
 (Sub-s. 2.) If one fourth in number or value of the 
 creditors dissent from the resolution, or the bankrupt 
 satisfies the Board of Trade that the remuneration is 
 unnecessarily large, the Board of Trade shall fix the 
 amount of the remuneration. 
 
 (Sub-s. 3.) The resolution shall express what ex- 
 penses the remuneration is to cover, and no liability 
 shall attach to the bankrupt's estate, or to the creditors, 
 in respect of any expenses which the remuneration is 
 expressed to cover. 
 
 (Sub-s. 4.) Where no remuneration has been voted 
 to a trustee he shall be allowed out of the bankrupt's 
 estate such proper costs and expenses incurred by him in 
 or about the proceedings of the bankruptcy as the taxing 
 ofiicer may allow. 
 
 (Sub-s. 5.) A trustee shall not, imder any circum- 
 stances whatever, make any arrangement for or accept 
 from the bankrupt, or any solicitor, auctioneer, or any 
 other person that may be employed about a bankruptcy, 
 any gift, remuneration, or pecuniary or other considera- 
 tion or benefit whatever beyond the remuneration fixed 
 by the creditors and payable out of the estate, nor shall 
 he make any arrangement for giving up, or give up, 
 any part of his remuneration, either as receiver, manager, 
 or trustee to the bankrupt, or any solicitor or other 
 person that may be employed about a bankruptcy. 
 
 Description (Sect. 44.) The property of the bankrupt divisible 
 
 property"^ ^ amougst his creditors, and in this Act referred to as the
 
 OF HAXKUUPTCY. 233 
 
 propei-ty of the bankrupt, shall not comprise the follow- divisible 
 mg particulars : creditors. 
 
 (I,) Property held by the bankrupt on trust for any 
 other person : 
 
 (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 apparol 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 proceedings 
 for exercising all such powers in or over or in 
 respect of property as might have been exer- 
 cised by the bankrupt for his own benefit at 
 the commencement of his banki'uptcy or be- 
 fore his discharge, except the right of nomi- 
 nation to a vacant ecclesiastical benefice ; and, 
 
 (iii.) All goods being, at the Commencement of the 
 bankruptcy, in the possession, order or dispo- 
 sition of the bankrupt, in his trade or busi- 
 ness, by the consent and permission of the true 
 owner, under siicli cu-cumstances that he is the 
 reputed owner tliereof ; provided that things 
 in action other than debts due or growing due 
 to the bankrupt in the coiu'se of his trade or 
 business, shall not bo deemed goods within the 
 meaning of this section (r) . 
 
 (Sect. 168.) In this Act " property " includes 
 money, goods, things in action, land, and every de- 
 scription of property, whether real or personal, and 
 whether situate in England or elsewhere ; also, obliga- 
 
 (e) Ante, pp. 85—87.
 
 234 
 
 OF C'liOSES IN ACTION. 
 
 tions, easements, and every description of estate, inte- 
 rest and profit, present or future, vested or contingent, 
 arising out of or incident to property as above defined. 
 
 Vesting- and 
 transfer of 
 property. 
 
 (Sect. 54, sub-s. 1.) Until a trustee is appointed the 
 official recei^•er sball be the trustee for the purposes of 
 this Act, and immediately on a debtor being adjudged 
 bankrupt, the property of the bankrupt shall vest in 
 the trustee. 
 
 (Sub-s. 2.) On the appointment of a trustee the pro- 
 perty shall forthwith pass to and vest in the trustee 
 appointed. 
 
 (Sub-s. 3.) The property of the bankrupt shall pass 
 from trustee to trustee, including under that term the 
 official receiver when he fills the office of trustee, and 
 shall vest in the trustee for the time being during his 
 continuance in office, without any conveyance, assign- 
 ment, or transfer whatever. 
 
 (Sub-s. 4.) The certificate of aj^pointment of a trustee 
 shall, for all purjioses of any law in force in any part 
 of the British dominions requiring registration, eni'ol- 
 ment, or recording of conveyances or assignments of 
 property, be deemed to be a conveyance or assignment 
 of property, and may be registered, enrolled, and re- 
 corded accordingly. 
 
 Disclaimer of 
 onerous pro- 
 perty. 
 
 (Sect. 65, sub-s. 1.) "Where any part of the property 
 of the bankrupt consists of land of any tenure biu*- 
 denecl with onerous 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 per- 
 formance 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 pro- 
 perty, or exercised any act of ownership in relation 
 thereto, but subject to the provisions of this section.
 
 OF HAKKlll rxcY. 235 
 
 may, by writing signed by liim, at any time within 
 tln-ee months after the first appointment of a trustee, 
 disclaim the property. 
 
 Provided that where any such property shall not have 
 come to the knowledge of the trustee within one month 
 after such appointment, he may disclaim such property 
 at any time within two months after he first became 
 aware thereof. 
 
 (Sub-s. 2.) The disclaimer shall operate to determine, 
 as from the date of disclaimer, the rights, interests, and 
 liabilities of the bankrupt and his property in or in 
 respect of the property disclaimed, and shall also dis- 
 charge the trustee from all personal liability in respect 
 of the property disclaimed as from the date when the 
 property vested in him, but shall not, except so far as is 
 necessary for the purpose of releasing the bankrupt and 
 his property and the trustee from liability, affect the 
 rights or liabilities of any other person. 
 
 (Sub-s. 3.) A trustee shall not be entitled to disclaim 
 a lease without the leave of the Court, except in any 
 cases which may be prescribed by general rules {d), and 
 the Court may, before or on granting such leave, require 
 such notices to be given to persons interested, and im- 
 pose such terms as a condition of granting leave, and 
 make such orders with respect to fixtures, tenant's im- 
 provements, and other matters arising out of the tenancy 
 as the Coiui thinks just. " 
 
 (Sub-s. 4.) The trustee shall not bo entitled to dis- 
 claim any property in pursuance of this section in any 
 case where an application in writing has been made to 
 the trustee by any person interested in the property 
 requiring him to decide whether he will disclaim or not, 
 and the trustee has for a period of twenty-eight days 
 after the receipt of the application, or such extended 
 period as may be allowed by the Coui^t, declined or 
 
 {d) See Bankruptcy Rules, 1883, No. 232.
 
 236 OF (HOSES IN ACTION. 
 
 neglected to give notice whether he disclaims the pro- 
 perty or not ; and, in the case of a contract, if the trustee, 
 after such application as aforesaid, does not within the 
 said period or extended period disclaim the contract, he 
 shall be deemed to have adopted it. 
 
 (Sub-s. 5.) The Court may, on the application of any 
 person who is, as against the trustee, 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 payment by or to either party of 
 damages for the non-performance of the contract, or 
 otherwise, as to the Court may seem equitable, and any 
 damages payable under the order to any such person 
 may be proved by him as a debt under the bankruptcy. 
 
 (Sub-s. 6.) The Court may, on application by any 
 person either claiming any interest in any disclaimed 
 property, or under any liability not discharged by this 
 Act in respect of any disclaimed property, and on hear- 
 ing such persons as it thinks fit, make an order for the 
 vesting of the property in or delivery thereof to any 
 person entitled thereto, or to whom it may seem just 
 that the same should be delivered by way of compensa- 
 tion for such liability as aforesaid, or a trustee for him, 
 and on such terms as the Court thinks just ; and on 
 any such vesting order being made, the property com- 
 prised therein shall vest accordingly in the person therein 
 named in that behalf without any conveyance or assign- 
 ment for the purpose. 
 
 Provided always, that where the property disclaimed 
 is of a leasehold nature, the Court shall not make a vest- 
 ing order in favour of any person claiming under the 
 bankrupt, whether as underlessee or as mortgagee by 
 demise except upon the terms of making such person 
 subject to the same liabilities and obligations as the 
 bankrupt was subject to under the lease in respect of 
 the property at the date when the bankruptcy petition 
 was filed, and any mortgagee or underlessee declining
 
 OF BANKRUPTCY. 237 
 
 to accept a vesting order upon such terms shall be ex- 
 cluded from all interest in and security upon the pro- 
 perty, and if there shall be no person claiming under 
 the bankrupt who is willing to accept an order upon 
 such terms, the Court shall have power to vest the 
 bankrupt's estate and interest in the property in any 
 person liable either personally or in a representative 
 character, and either alone or jointly with the bankrupt 
 to perform the lessee's covenants in such lease, freed 
 and discharged from all estates, incumbrances, and 
 interests created therein by the bankrupt. 
 
 (Sub-s. 7.) Any person injured by the operation of a 
 disclaimer under this section shall be deemed to be a 
 creditor of the bankrupt to the extent of the injury, 
 and may accordingly prove the same as a debt under 
 the bankruptcy. 
 
 (Sect. 50, sub-s. 1.) The trustee shall, as soon as may Possession of 
 be, take possession of the deeds, books, and documents trustee.^ ^ 
 of the bankrupt, and all other parts of his property 
 capable of manual delivery. 
 
 (8ub-s. 2.) The trustee shall, in relation to and for 
 the pui'pose of acquiring or retaining possession of the 
 property of the bankrupt, be in the same position as if 
 he were a receiver of the property appointed by the 
 High Court, and the Court may on his application, 
 enforce such acquisition or retention accordingly. 
 
 (Sub-s. 3.) 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, 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. 
 
 (Sub-s. 4.) Where any j)art of the property of the 
 banki'upt is of copyhold or customary tenure, or is any 
 like property passing by sm'render and admittance or
 
 2(38 OF cnosEs ix action, 
 
 in any similar manner, tlio trustee shall not be com- 
 pellable to be admitted to the property, but may deal 
 with it in the same manner as if it had been capable 
 of being- and had been duly surrendered or otherwise 
 conveyed to such uses as the trustee may appoint ; and 
 any appointee of the trustee shall be admitted to or 
 otherwise invested with the property accordingly. 
 
 (Sub-s. 5.) Where any 'part of the property of the 
 bankrupt consists of things in action, such things 
 shall be deemed to have been duly assigned to the 
 trustee. 
 
 (Sub-s. 6.) Any treasurer or other officer, or any 
 banker, attorney, or agent of a bankrupt, shall pay and 
 deliver to the trustee all money and secmities in his 
 possession or power, as such officer, banker, attorney, or 
 agent, which he is not by law entitled to retain as 
 against the bankrupt or the trustee. If he does not he 
 shall be guilty of a contempt of Court, and may be 
 punished accordingly on the application of the trustee. 
 
 Sequestration By scct. 52, where a bankrupt is a beneficed clergy- 
 ticarbenefice ^^^^^j ^^^ trustee may apply for and obtain a sequestra- 
 tion of the profits of the benefice. But the bishop of 
 the diocese in which the benefice is situate may, if he 
 thinks fit, appoint to the bankrupt such or the like 
 stipend as he might by law have appointed to a curate 
 duly licensed to serve the benefice in case the bankrupt 
 had been non-resident ; and the sequestrator is required 
 to pay the sum so a2:)pointed out of the profits of the 
 benefice to the bankrupt, by quarterly instalments 
 while he performs the duties of the benefice. The 
 sequestrator is also recpiired to pay out of the profits of 
 the benefice the salary payable to any duly licensed 
 curate of the chirrch of the benefice in respect of duties 
 performed by him as such during four months before 
 the date of the receiving order not exceeding fifty 
 pounds.
 
 OF BAXKKTTPTCY. 230 
 
 (Sect. 53, sub-s. 1.) Where a Laiikrupt is an ofRcer Appropria- 
 of the army or navy, or an ofliccr or clerk or otherwise ^Jq|| ^f p°y' 
 employed or engaged in the civil service of the Crown, or salary to 
 the trustee shall receive for distrihution amongst the 
 creditors so much of the baidcrupt's pay or salary as 
 the Court, on the application of the trustee, with the 
 consent of the chief officer of the department under 
 which the pay or salary is enjoyed, may direct. Before 
 making any order under this sub-section the Court 
 shall communicate with the chief officer of the depart- 
 ment as to the amount, time, and manner of the pay- 
 ment to the trustee, and shall obtain the written con- 
 sent of the chief officer to the terms of such payment. 
 
 (Sub-s. 2.) 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, or to any compensation 
 granted by the Treasury, the Court, on the application 
 of the trustee, shall from time to time make such order 
 as it thinks just for the payment of the salary, income, 
 half pay, pension, or compensation, or of any part 
 thereof, to the trustee to be applied by him in such 
 manner as the Court may direct. 
 
 (Sub-s. 3.) Nothing in this section shall take away 
 or abridge any power of the chief officer of any public 
 department to dismiss a bankrupt, or to declare the 
 pension, half pay, or compensation of any bankrupt to 
 be forfeited. 
 
 (Sect. 5G.) Subject to the provisions of this Act, the Powers of 
 trustee may do all or any of the following things : deaf with 
 
 (1.) Sell all or any part of the property of the bank- property, 
 rupt (including the goodwill of the business, 
 if any, and the book debts due or growing 
 due to the bankrupt), by public auction or 
 private contract, with power to transfer the 
 whole thereof to any person or company, or 
 to sell the same in parcels :
 
 240 OF CHOSES IN ACTIOX. 
 
 (2.) Give receipts for any money received by bim, 
 wliicb receipts sball effectually discbarge tbe 
 person paying tbe money from all responsi- 
 bility in respect of tbe application tbereof : 
 
 (8.) Prove, rank, claim, and draw a dividend in 
 respect of any debt due to tbe bankrupt : 
 
 (4.) Exercise any powers tbe capacity to exercise 
 wbicb is vested in tbe trustee under tbis Act, 
 and execute any powers of attorney, deeds, 
 and otber instruments for tbe purpose of 
 carrying into effect tbe provisions of tbis Act : 
 
 (5.) Deal witb any property to wbicb tbe banki'upt 
 is beneficially entitled as tenant in tail in tbe 
 same manner as tbe bankrupt migbt bave 
 dealt witb it ; and sections fifty-six to seventy- 
 tbree (botb inclusive) of tbe Act of tbe session 
 of tbe tbird and fourtb years of tbe reign of 
 King William tbe Fourtb (cbapter seventy- 
 four), "for tbe abolition of fines and re- 
 coveries, and for tbe substitution of more 
 simple modes of assurance," sball extend and 
 apply to proceedings under tbis Act, as if 
 tbose sections were bere re-enacted and made 
 applicable in terms to tbose proceedings {c) . 
 
 Powers exer- (Sect. 57.) Tbe trustee may, witb tbe permission of 
 
 trustee with ^^^ committee of inspection (/), do all or any of tbe 
 
 permission of following tbings : 
 committee of /-, \ Ji n t • pjiii 
 
 inspection. (1.) Carry on tbe busmess oi tbe bankrupt, so far as 
 
 may be necessary for tbe beneficial winding 
 up of tbe same : 
 (2.) Bring, institute, or defend any action or otber 
 legal proceeding relating to tbe property of 
 tbe bankrupt : 
 
 {e) See Principles of the Law veyancing Statutes, 353, 361 — 
 of Real Property, 59, 13th ed. ; 363. 
 61, 14th ed. ; Williams's Con- (/) See ante, pp. 225, 231.
 
 OF HANKUrPTC'V, 241 
 
 (3.) Employ a solicitor or other agent to take any 
 proceedings or do any business -whieli may he 
 ■ sanctioned by the committee of inspection : 
 
 (4.) Accept as the consideration for the sale of any 
 property of the bankrupt a sum of money 
 payable at a future time subject to such stipu- 
 lations as to security and otherwise as the 
 committee tliink fit : 
 
 (5.) Mortgage or pledge any part of the property of 
 the bankrupt for the purpose of raising money 
 ^ for the payment of his debts : 
 
 (6.) Hefcr any dispute to arbitration, compromise all 
 debts, claims, and liabilities, whether present 
 or future, certain or contingent, liquidated or 
 unliquidated, subsisting or supposed to subsist 
 between the banki-upt and any person who 
 may have incurred any liability to the bank- 
 rupt, on the receipt of such sums, payable at 
 such times, and generally on such terms as 
 may be agreed on : 
 
 (7.) Make such compromise or other arrangement as 
 may be thought expedient with creditors, or 
 persons claiming to be creditors, in respect of 
 any debts provable under the bankruptcy : 
 
 (8.) Make such compromise or other arrangement as 
 may be thought expedient with respect to any 
 claim arising out of or incidental to the pro- 
 perty of the bankrupt, made or capable of 
 being made on the trustee by any person or 
 by the trustee on any person : 
 
 (9.) Divide in its existing form amongst the creditors, 
 according to its estimated value, any property 
 which from its peculiar nature or other special 
 cu-cumstances cannot be readily or advanta- 
 geously sold. 
 The permission given for the purposes of this section 
 shall not be a general permission to do all or any of the 
 
 w.p.P. a
 
 242 
 
 OF CHOSES IN ACTION. 
 
 above-mentioned things, but shall only be a permission 
 to do the particular thing or things for which permission 
 is sought in the specified case or cases. 
 
 Power to 
 allow bank- 
 rupt to 
 manage 
 property. 
 
 Allowance to 
 bankrupt for 
 maintenance 
 or service. 
 
 (Sect. 04, sub-s. 1.) The trustee, with the permission 
 of the committee of inspection, may appoint the bank- 
 rupt himself to superintend the management of the 
 property of the bankrupt or of any part thereof, or to 
 carry on the trade (if any) of the bankrupt for the 
 benefit of his creditors, and in any other respect to aid 
 in administering the property in such manner and on 
 such terms as the trustee may direct. 
 
 (Sub-s. 2.) The trustee may from time to time, with 
 the permission of the committee of inspection, make 
 such allowance as he may think just to the bankrupt 
 out of his property for the support of the bankrupt 
 and his family, or in consideration of his services if 
 he is engaged in winding up his estate, but any such 
 allowance may be reduced by the Com't. 
 
 Discretionary 
 powers of 
 trustee and 
 control 
 thereof. 
 
 (Sect. 89, sub-s. 1.) Subject to the provisions of this 
 Act the trustee shall, in the administration of the pro- 
 perty of the bankrupt and in the distribution thereof 
 amongst his creditors, have regard to any directions 
 that may be given by resolution of the creditors at any 
 general meeting, or by the committee of inspection, and 
 any directions so given by the creditors at any general 
 meeting shall in case of conflict be deemed to override 
 any directions given by the committee of inspection. 
 
 (Sub-s. 2.) The trustee may from time to time sum- 
 mon general meetings of the creditors for the pur- 
 pose of ascertaining their wishes, and it shall be his 
 duty to summon meetings at such times as the creditors, 
 by resolution, either at the meeting ajij^ointing the 
 trustee or otherwise may direct, or v/henever requested 
 in writing to do so by one fourth in value of the 
 creditors.
 
 OF BANKRUPTCY. 243 
 
 (Siib-s. 3.) The trustee may apply to the Coiu-t in 
 manner prescribed {()) for directions in relation to any 
 particular matter arising under the bankruptcy. 
 
 (Sub-s. 4.) Subject to the provisions of this Act 
 the trustee shall use his own discretion in the manage- 
 ment of the estate and its distribution among the 
 creditors. 
 
 (Sect. 90.) If the bankrupt or any of the creditors, or Appeal to 
 
 ,1 • • T 1 i. 1 • • J? Court as'aiu.st 
 
 any other person, is aggrieved by any act or decision oi trustee. 
 the trustee, he may apply to the Coiu-t, and the Coui-t 
 may confirm, reverse, or modify the act or decision com- 
 plained of, and make such order in the premises as it 
 thinks just. 
 
 (Sect. 91, sub-s. 1.) The Board of Trade shall take Control of 
 cognizance of the conduct of trustees, and in the event Trade over 
 of any trustee not faithfully performing his duties, trustees. 
 and duly obserAing all the requirements imposed on 
 him by statute, rules or otherT\ise, with respect to the 
 performance of his duties, or in the event of any com- 
 plaint being made to the Board by any creditor in 
 regard thereto, the Board shall inquire into the matter 
 and take such action thereon as may be deemed ex- 
 pedient. 
 
 (Sub-s. 2.) The Board may at any time require 
 any trustee to answer any inquiry made by them in 
 relation to any bankruptcy in which the trustee is 
 engaged, and may, if the Board think fit, apply to the 
 Court to examine on oath the trustee or any other person 
 concerning the bankruptc}'. 
 
 (Sub-s. 3.) The Board may also dii-ect a local in- 
 vestigation to be made of the books and vouchers of the 
 trustee. 
 
 A trustee in bankruptcy is not permitted to retain in Money re- 
 
 CGivcd bv 
 
 his own hands any money, which he may receive as the trustee in 
 proceeds of the realization of the estate of the bankrupt ; ijaukruptcy. 
 
 {(j) See Rule 229. 
 
 r2
 
 244 
 
 OF CHOSES IX ACTION. 
 
 Payment of 
 money into 
 Bank of 
 England. 
 
 but is required to pay the same into a bank in accord- 
 ance with tlie following provisions : — 
 
 (Sect. 74, sub-s. 1.) An account called the Bankruptcy 
 Estates Account shall be kept by the Board of Trade 
 with the Bank of Eng'land, and all moneys received by 
 the Board of Trade in respect of proceedings imder this 
 Act shall be paid to that account. 
 
 (Sub-s. 2.) The account of the Accountant in Bank- 
 ruptcy at tlie Bank of England shall be transferred to 
 the Bankruptcy Estates Account. 
 
 (Sub-s. 3.) Every trustee in bankruptcy shall, in such 
 manner and at such times as the Board of Trade with 
 the concurrence of the Treasury direct, pay the money 
 received by him to the Bankruptcy Estates Account at 
 the Bank of England, and the Board of Trade shall 
 furnish him with a certificate of receipt of the money 
 so paid, 
 
 (Sub-s. 4.) Provided that if it appears to the com- 
 mittee of inspection that for the purpose of carrying 
 on the debtor's business, or of obtaining advances, or 
 because of the probable amount of the cash balance, or 
 if the committee shall satisfy the Board of Trade that 
 for any other reason it is for the advantage of the 
 creditors that the trustee should have an account with a 
 local bank, the Board of Trade shall, on the application 
 of the committee of inspection, authorise the trustee to 
 make his payments into and out of such local bank as 
 the committee may select. 
 
 Such account shall be ojDcned and kept by the trustee 
 in the name of the debtor's estate ; and any interest 
 receivable in respect of the account shall be part of the 
 assets of the estate. 
 
 The trustee shall make his payments into and out of 
 such local bank in the prescribed manner. 
 
 (Sub-s. 5.) Subject to any general rules relating to 
 small bankruptcies under Part VII. {/i) of this Act, where 
 
 (/() Sects. 121, 122, set out below.
 
 OF IIANKKTP'ICV. 245 
 
 the debtor at the date of tho receiving order has an 
 account at a bank, such account shall not be with- 
 drawn imtil the expiration of seven days from the day 
 appointed for tho first meeting of creditors, unless the 
 Board of Trade, for the safety of the account, or other 
 sufficient cause, order the withdrawal of the account. 
 
 (Sub-s. C.) If a trustee at any time retains for more 
 than ten days a sum exceeding fifty pounds, or such 
 other amount as the Board of Trade in any particular 
 case authorise him to retain, then, unless he explains the 
 retention to the satisfaction of the Board of Trade, he 
 shall pay interest on the amount so retained in excess 
 at the rate of twenty pounds per centum per annum, 
 and shall have no claim for remuneration, and may be 
 removed from his office by the Board of Trade, and 
 shall be liable to pay any expenses occasioned by reason 
 of his default. 
 
 (Sect. 75.) No trustee in a bankruptcy or under any Trustee not to 
 composition or scheme of arrangement shall pay any private 
 sums received by him as trustee into his private banking account. 
 account. 
 
 The Bankruptcy Eules, 1883, provide (?) that, where 
 the trustee is authorised to have an account at a local 
 bank, he shall forthwith pay all moneys received b}' him 
 in to the credit of the estate ; that all payments out shall 
 be made by cheque payable to order ; and that every 
 cheque shall have marked or ■\\aitten on the face of it 
 the name of the estate, and shall be signed by the trus- 
 tee, and countersigned by such person as the creditors or 
 the committee of inspection may appoint. All payments 
 out of the Bankruptcy Estates Account at the Bank of 
 England are also requii^ed to be made by cheques to 
 order {j). 
 
 Every trustee in bankruptcy is required to record all Trustee's 
 proceedings and all such matters as may be necessary to account. 
 (») Rule 251. {J) Sect. 74, eub-s. 7, and Rule 252.
 
 246 
 
 OF CHOSES IN ACTION. 
 
 Audit by 
 committee of 
 inspection. 
 
 Audit by 
 Board of 
 Trade. 
 
 Annual state- 
 ment of pro- 
 ceedins-s. 
 
 give a coiTect view of his administration of the estate 
 in a " Record Book " ; and to enter his receipts and 
 payments in a "Cash Book"(/.). He is required to 
 submit these books wdth all requisite vouchers to the 
 committee of inspection, when required, and not less 
 than once every three months (/). The committee of 
 inspection are requii'ed to audit the trustee's accounts 
 once at least every three months (;>?). Every six months 
 the trustee is required to send accounts in the prescribed 
 form to the Board of Trade, who are required to cause 
 the same to be audited (;/). And once every year the 
 trustee is required to transmit to the Board of Trade a 
 statement showing the proceedings in the bankruptcy 
 up to the date of the statement, containing the prescribed 
 particulars, and made out in the prescribed form (o). 
 And the Board of Trade are rec^uired to cause the state- 
 ments so transmitted to be examined, and to call the 
 trustee to accoimt for any misfeasance, neglect, or 
 omission which luay appear on the said statements or in 
 his accounts or otherwise ; and the Board may require 
 the trustee to make good any loss which the estate of 
 the bankrupt may have sustained by the misfeasance, 
 neglect, or omission (p) . 
 
 Distribution 
 of bankrupt's 
 property. 
 
 Declaration 
 and distribix- 
 tion of 
 dividends. 
 
 The money which is derived from the realization of 
 the property of a bankrupt is distributed amongst those 
 of his creditors who have proved their debts. The dis- 
 tribution of a bankrupt's property is now regulated by 
 the following enactments : — 
 
 (Sect. 58, sub-s. 1.) Subject to the retention of such 
 sums as may be necessary for the costs of administration, 
 or otherwise, the trustee shall, with all convenient speed, 
 
 {k) Sect. 80 ; Rules 207, 208. 
 
 (l) Rule 209. 
 
 {m) Rule 210. 
 
 («) Sect. 78; Rules 211— 213. 
 
 (o) Sect. 81, 8ub-s. 1 ; Rule 
 
 217. 
 
 (p) Sect. 81, sub-s. 2.
 
 oi' HANKiarT( V. 247 
 
 declare and distribute dividends amongst tlie creditors 
 who have proved theii" dehts. 
 
 (Sub-s. 2.) The first dividend, if any, shall be de- 
 clared and distributed within four months after the 
 conclusion of the first meeting of creditors {q), unless 
 the trustee satisfies the committee of inspection that 
 there is sufiicient reason for postponing the declaration 
 to a later date. 
 
 (Sub-s, 3.) Subsequent dividends shall, in the absence 
 of sufficient reason to the contrary, be declared and dis- 
 tributed at inter-sals of not more than six months. 
 
 (Sub-s. 4.) Before declaring a dividend the trustee 
 shall cause notice of his intention to do so to be gazetted 
 in the prescribed manner, and shall also send reason- 
 able notice thereof to each creditor mentioned in the 
 bankrupt's statement (>•) who has not proved his debt. 
 
 (Sub-s. 5.) When the trustee has declared a dividend 
 he shall send to each creditor who has proved a notice 
 showing the amount of the dividend and when and how 
 it is payable, and a statement in the prescribed form as 
 to the particulars of the estate {s). 
 
 (Sect. 59, sub-s. 1.) Where one partner of a firm is joint and 
 adjudged bankrupt, a creditor to whom the bankrupt is separate 
 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 bankrupt until all the separate 
 creditors have received the full amount of theii- respec- 
 tive debts (/). 
 
 (Sect. 60.) In the calculation and distribution of a Provision for 
 dividend the trustee shall make provision for debts creditors 
 
 ■^ rcsKling' at a 
 
 provable in bankruptcy appearing from the bankrupt's distance, &c. 
 statements, or otherwise, to be due to persons resident 
 in places so distant from the place where the trustee is 
 
 {q) Ante, pp. 212, 217. (0 Stats. 32 & 33 Vict. c. 71, 
 
 (r) Ante, pp. 212, 218. ». 103 ; 12 & 13 Vict. c. lOG, 
 
 (,?) SeeEule 175. s. 140; 6 Geo. IV. c. IG, s. 62, 
 
 were to the same effect.
 
 248 
 
 OK CilOSKS IN ACTION, 
 
 aetiug that in the ordinary course of communication 
 
 they have not had sufficient time to tender their proofs, 
 
 or to establish them if disputed, and also for debts 
 
 provable in bankruptcy, the subject of claims not yet 
 
 determined {ii). He shall also make provision for any 
 
 disputed proofs or claims, and for the expenses necessary 
 
 for the administration of the estate or otherwise, and, 
 
 subject to the foregoing provisions, he shall distribute 
 
 as dividend all money in hand. 
 
 Right of (Sect. 61.) Any creditor who has not proved his 
 
 hasDotproved ^^^bt before the declaration of any dividend or dividends 
 
 debt before shall be entitled to be paid out of any money for the 
 
 declaration of . . •11 tpi t-it 
 
 a dividend. time bemg m the hands of the trustee au}^ dividend or 
 dividends he may have failed to receive before that 
 money is applied to the payment of any future divi- 
 dend or dividends, but he shall not be entitled to dis- 
 turb the distribution of any dividend declared before 
 his debt was f)roved by reason that he has not partici- 
 pated therein {x). 
 
 Final (Sect. 62.) When the trustee has realized all the 
 
 property of the bankrupt, or so much thereof as can, in 
 the joint opinion of himself and of the committee of 
 inspection, be realized without needlessly protracting 
 the trusteeship, he shall declare a final dividend, but 
 before so doing he shall give notice in manner pre- 
 scribed {//) to the persons whose claims to be creditors 
 have been notified to him, but not established to his 
 satisfaction, that if they do not establish their claims to 
 the satisfaction of the Court within a time limited by 
 the notice, he will proceed to make a final dividend, 
 without regard to their claims. After the expiration of 
 the time so limited, or, if the Court on application by 
 any such claimant grant him further time for establish- 
 
 (u) So much of the above sec- {x) Substantially in the same 
 
 tion is in the same words as stat. words as stat. 32 & 33 Vict. c. 71, 
 32 & 33 Vict. c. 71, s. 42. s. 43. 
 
 (f/) See Rule 175.
 
 OF UANKia I'l'CY. 240 
 
 ing his claim, then ou the expiration of such further 
 time, the property of the bankrupt shall be divided 
 among the creditors who have proved their debts, with- 
 out regard to the claims of any other persons. 
 
 (Sect. G3.) No action for a dividend shall lie against No action for 
 the trustee, but if the trustee refuses to pay any divi- ^^^ *^° ' 
 dend the Court may, if it tliinks fit, order him to pay 
 it, and also to pay out of his own juoney interest 
 thereon for the time that it is withheld, and the costs 
 of the application {z). 
 
 (Sect. 65.) The bankrupt shall be entitled to any Eight of 
 surplus remaining after payment in full of his creditors, ^''i^^^^pt to 
 with interest, as by this Act provided {a), and of the 
 costs, charges, and expenses of the proceedings under 
 the bankruptcy petition (b). 
 
 In the payment of dividends no preference is given All debts paid 
 on account of the nature of the debt, whether judgment ^^t^^^^y- 
 debt, bond debt, specialty or simple contract. This rule 
 has prevailed in bankruptcy from the time of the earliest 
 bankruptcy statutes (c). In this respect the Court of 
 Chancery, to which the juiisdiction in bankruptcy 
 anciently belonged, followed its rule that equality is 
 equity. The Crown, however, might enforce payment Crown debts, 
 of the entire debt of a bankrupt Crown debtor, not- 
 withstanding the bankrupt laws (d). But the Bank- 
 ruptcy Act, 1883, now enacts (e) that, save as therein 
 provided, the provisions of the Act relating to the 
 
 (2) Stats. 32 & 33 Vict. c. 71, 197; 6 Geo. IV. c. 16, s. 132; 
 
 s. 45 ; 12 & 13 Vict. c. 106, s. and 13 Eliz. c. 7, s. 4, were 
 
 190; 6 Geo. IV. c. 16, s. Ill; similar in effect. 
 
 and 49 Geo. III. c. 121, s. 12, (c) See stat. 21 Jac. I. c. 19, 
 
 were similar in effect. b. 9 ; 2 Black. Comm. 487. 
 
 (a) See sect. 40, sub-s. 5, set (d) Anon., I Atk. 262 ; stat. 
 out below. 32 & 33 Vict, c, 71, s. 49. 
 
 (b) Stats. 32 & 33 Vict. c. 71, (r) Stat. 46 & 47 Vict. c. 52, 
 8. 45; 12 & 13 Vict. c. 106, s. s. 150.
 
 250 
 
 OK (.'HOSES IX AC riOX. 
 
 d udsrment. 
 
 Kent. 
 
 Priority of 
 debts under 
 Act of 1883. 
 
 Kates and 
 taxes. 
 
 remedies against the property of a debtor (_/"), the 
 priorities of debts {(/), the effect of a composition or 
 sclieme of arrangement (//), and the effect of a dis- 
 charge (i) shall bind the Crown. By the statute for 
 extending the remedies of creditors, a judgment debt, 
 if entered up one year at least before the bankruptcy, 
 was a charge in equity on all the bankrupt's real 
 estate (/<•). But this was altered with respect to all 
 judgments entered up after the 29th July, 1864, the 
 date of the Act to amend the law relating to future 
 judgments, statutes and recognizances (/). The land- 
 lord of a bankrupt might always distrain for his rent, 
 notwithstanding an act of bankruptcy {in) . But the Act 
 of 1825 provided that no distress for rent levied after 
 an act of bankruptcy upon the goods of any bankrupt 
 should be available for more than one year's rent, 
 accrued prior to the date of the commission [n). And 
 the subsequent bankruptc}' statutes have contained pro- 
 visions to the same effect (o). The following provisions 
 of the Act of 1883 now regulate the satisfaction of 
 claims against a bankrupt : — 
 
 (Sect. 40, sub-s. 1.) In the distribution of the property 
 of a bankrupt there shall be paid in priority to all other 
 debts, — 
 
 (a) All parochial or other local rates due from the 
 bankrupt at the date of the receiving order, 
 and having become due and payable within 
 twelve months next before such time, and all 
 
 (/) See sect. 9, ante, p. 216, 
 
 (17) See sect., 40, set out below. 
 
 [h] See sects. 18 (sub-s. 8), 19, 
 ante, pp. 221, 222. 
 
 (i) See sect. 30, set out below. 
 
 (A) Stat. 1 & 2 Vict. c. 110, 
 s. 1 3 ; £x 2^arte Boyle, 3 De Gex, 
 M. & G. 515; S. C, 17 Jur. 
 979. 
 
 (/) Stat. 27 & 28 Vict. c. 112, 
 s. 1. 
 
 {)n) Ex parte Plummer, 1 Atk. 
 103 ; 2 Black. Comm. 487. 
 
 (m) Stat. 6 Geo. IV. c. 16, s. 74. 
 
 (o) See stats. 12 & 13 Vict. c. 
 106, s. 129 ; 32 & 33 Vict. c. 71, 
 8. 34 ; and 46 & 47 Vict. c. 52, 
 s. 42, set out below.
 
 OK UAMvKl'l'TCY, 251 
 
 assessed taxes, land tax, property or income 
 tax, assessed on liim up to the oth day of 
 April next before the date of the receiving 
 order, and not exceeding in the whole one 
 year's assessment ; 
 
 (b) All wages or salary of any clerk or servant in Wages. 
 
 respect of services rendered to the bankrupt 
 during four months before the date of the 
 receiving order, not exceeding fifty pounds ; 
 and 
 
 (c) All wages of any labourer or workman, not 
 
 exceeding fifty pounds, whether payable for 
 time or piece-work, in respect of services 
 rendered to the bankrupt during four months 
 before the date of the receiving order. 
 
 (Sub-s. 2.) The foregoing debts shall rank equally 
 between themselves, and shall be paid in full, unless 
 the property of the bankrupt is insufficient to meet 
 them, in which ease they shall abate in equal propor- 
 tions between themselves {p). 
 
 (Sub-s. 3.) In the case of partners the joint estate 
 shall be applicable in the first instance in payment of 
 their joint debts, and the separate estate of each partner 
 shall be applicable in the first instance in payment of 
 his separate debts. If there is a surplus of the sepa- 
 rate estates it shall be dealt with as part of the joint 
 estate. If there is a surplus of the joint estate it shall 
 be dealt with as part of the respective separate estates 
 in proportion to the right and interest of each partner 
 in the joint estate. 
 
 (Sub-s. 4.) Subject to the provisions of this Act all 
 debts proved in the bankruptcy shall be iiaid pari passu. 
 
 (Sub-s. 5.) If there is any sm-plus after payment of 
 the foregoing debts, it shall be applied in pajauent of 
 
 [p) Stat. 32 & 33 Vict. c. 71, 24 & 2.5 Vict. c. 131, s. 15G ; 12 
 s. 32, was to the same effect. & 13 Vict. c. 106, ss. 166 — 169 ; 
 For the previous law, see stats. 6 Geo. IV. c. 16, s. 48.
 
 252 
 
 OK CllOSKS IN ACTION. 
 
 Preferential 
 claim in case 
 of apprentice- 
 ship. 
 
 interest from the date of tlie receiving order at the rate 
 of four pounds per centum per annum on all debts 
 proved in the bankruptcy. 
 
 (Sect. 41, sub-s. 1.) Where at the time of the presen- 
 tation of the bankruptcy petition any person is appren- 
 ticed or is an articled clerk to the bankrupt, the adjudi- 
 cation of bankruptcy shall, if either the bankrupt or 
 apprentice or clerk gives notice in writing to the trustee 
 to that effect, be a complete discharge of the indenture 
 of apprenticeship or articles of agreement ; and if any 
 money has been paid by or on behalf of the apprentice 
 or clerk to the bankrupt as a fee, the trustee may, on 
 the application of the apprentice or clerk, or of some 
 person on his behalf, pay such sum as the trustee, sub- 
 ject to an appeal to the Court, thinks reasonable, out of 
 the bankrupt's property, to or for the use of the appren- 
 tice or clerk, regard being had to the amount paid by 
 hiin or on his behalf, and to the time during which he 
 served with the bankrupt under the indenture or articles 
 before the commencement of the bankruptcy, and to the 
 other cu'cumstances of the case. 
 
 (Sub-s. 2.) Where it appears expedient to a trustee, 
 he may, on the application of any apprentice or articled 
 clerk to the bankrupt, or any person acting on behalf of 
 such apprentice or articled clerk, instead of acting under 
 the preceding provisions of this section, transfer the in- 
 denture of apprenticeship or articles of agreement to 
 some other person {(j). 
 
 Proof of 
 debts. 
 
 As the bankrupt was discharged from such claims 
 only as had been or might have been proved under 
 the bankruptcy, elaborate provisions were made by the 
 former Acts for the proof of as many demands as pos- 
 
 {q) Substantially in the same 
 words as stat. 32 & 33 Vict. c. 
 71, s. 33. By stats. 12 & 13 Vict, 
 c. 106, s. 170, and 6 Geo. IV. c. 16, 
 
 s. 49, a similar preference might 
 be made in the case of an ap- 
 prentice fee.
 
 OF BANKRUPTCY. 2o;i 
 
 sible. As these provisions have now been repealed, it 
 is unnecessary to state tliem. The present Act provides 
 as follows : — 
 
 (Sect. 37, sub-s. 1.) Demands in the nature of Description of 
 unliquidated damages arising otherwise than by reason 1^ baifk°^*^ 
 of a contract, promise, or breach of trust, shall not be i-ui^tej. 
 provable in bankruptcy. 
 
 (Sub-s. 2.) A person having notice of any act of 
 bauki'uptcy available against the debtor shall not prove 
 under the order for any debt or liability contracted by 
 the debtor subsequently to the date of his so having 
 notice. 
 
 (Sub-s. '3.) Save as aforesaid, all debts and liabilities, 
 present or futiure, certain or contingent, to which the 
 debtor is subject at the date of the receiving order, or 
 to which he may become subject before his discharge 
 by reason of any obligation incurred before the date of 
 the receiving order, shall be deemed to be debts provable 
 in bankruptcy, 
 
 (Sub-s. 4.) An estimate shall be made by the trustee 
 of the value of any debt or liability provable as afore- 
 said, which by reason of its being subject to any con- 
 tingency or contingencies, or for any other reason, does 
 not bear a certain value. 
 
 (Sub-s. -J.) Any person aggrieved by any estimate 
 made by the trustee as aforesaid may appeal to the 
 Court. 
 
 (Sub-s. G.) If, in the opinion of the Court, the value 
 of the debt or liability is incapable of being fairly 
 estimated, the Court may make an order to that effect, 
 and thereupon the debt or liability shall, for the pur- 
 poses of this Act, be deemed to be a debt not provable 
 in bankruptcy. 
 
 (Sub-s. 7.) If, in the opinion of the Coui't, the value 
 of the debt (;r liability is capable of being fairly esti- 
 mated, the Court may direct the value to be assessed, 
 before the Court itself without the intervention of a
 
 254 OF CIIOSES IN ACTION. 
 
 jury, and may give all necessary directions for this 
 purpose, and the amount of the value when assessed 
 shall he deemed to he a deht provahle in hankruptcy. 
 
 (Suh-s. S.) " Liahility " shall for the purposes of this 
 Act include any compensation for work or labour done, 
 any obligation or possibility of an obligation to pay 
 money or money's worth on the breach of any express 
 or implied covenant, contract, agreement, or under- 
 taking, whether the breach does or does not occur, or 
 is or is not likely to occur or capable of occurring before 
 the discharge of the debtor, and generally it shall in- 
 clude any express or implied engagement, agreement, 
 or undertaking, to pay, or capable of resulting in the 
 payment of money, or money's worth, whether the pay- 
 ment is, as respects amount fixed or unliquidated ; as 
 respects time, present or future, certain or dependent on 
 any one contingency or on two or more contingencies ; 
 as to mode of valuation capable of being ascertained 
 by fixed rules, or as matter of opinion (r) . 
 Mutual credit (Sect. 38.) Where there have been mutual credits, 
 mutual debts, or other mutual dealings between a debtor 
 against whom a receiving order shall be made under 
 this Act, and any other person proving or claiming to 
 prove a debt under such receiving order, an account 
 shall be taken of what is due from the one party to the 
 other in respect of such mutual dealings, and the sum 
 due from the one party shall be set oil against any sum 
 due from the other party, and the balance of the ac- 
 count, and no more, shall be claimed or paid on either 
 side respectively; but a person shall not be entitled 
 
 (/•) This section is substautially 122; Macfio lane's claim, ib. 337; 
 
 in tlie same words as stat. 32 & Re Bridges, ib. 342 ; Ex imrte 
 
 33 Vict. c. 71, s. 31. Ex parte Leslie, re Guerrier, 20 Ch. D. 
 
 IFatcrs, re Hoyle, 21 W. E. 554 ; 131 ; Watson v. Eollidaij, ib. 
 
 Ee Sneezum, ex parte Davis, Z Ch. 780, affirmed 31 W. R. 536; 
 
 D. 463 ; Ex parte Bates, re Pan- Eobinson v. Ommanneij, 22 Ch. D. 
 
 nell, 11 Ch. D. 914 ; Emma Silver 285. 
 Minivy Co. v. Grant, 17 Ch. D. 
 
 and set-off.
 
 OF IJANKIU'PTCY. 255 
 
 under this section to claim the benefit of any set-off 
 against the property of a debtor in any case where he 
 had at the time of giving credit to the debtor notice of 
 an act of bankruptcy committed by the debtor, and 
 available against him (.s). 
 
 (Sect. 42, sub-s. 1.) The landlord or other person to PoAverto 
 whom any rent is due from the bankrupt may at any ^istraiu for 
 time, either before or after the commencement of the ^■^"*- 
 bankruptcy', distrain upon the goods or effects of the 
 bankrupt for the rent due to him from the bankrupt, 
 with this limitation, that if siich distress for rent be 
 levied after the commencement of the bankruptcy it 
 shall be available only for one year's rent accrued due 
 prior to the date of the order of adjudication, but the 
 landlord or other person to whom the rent may be due 
 from the bankrupt may prove under the bankruptcy 
 for the surplus due for which the distress may not have 
 been available (f). 
 
 (Sub-s. 2.) For the pm'poses of this section the term 
 " order of adjudication " shall be deemed to include 
 an order for the administration of the estate of a 
 debtor whose debts do not exceed fifty pounds, or of a 
 deceased person who dies insolvent. 
 
 The rules of the Act of 1883 with respect to the R^iles as to 
 mode of proving debts, the right of proof by secured ^'^"^ 
 and other creditors, the admission and rejection of 
 
 («) This section is substantially parte Hale, re Binns, 1 Ch. D. 
 
 in the same words as stat. 32 & 285 ; Ex parte Jackson, re lloues, 
 
 33 Vict. c. 71, s. 39 ; stats. 12 & 14 Ch. D. 725 ; Ex jyarte Punmtt, 
 
 13 Vict. 0. 106, s. 171 ; 6 Geo. IV. re Kitchin, 16 Ch. D. 226; Ex 
 
 c. 16, s. 50, and 46 Geo. III. parte JIarrUo>i, re Jktls, 18 Ch. J). 
 
 c. 135, s. 3, were to the same 127 ; Ex parte Voisei/, re Knight, 
 
 effect ; see also stat. 5 Geo. II. 21 Ch. D. 442 ; Ex j)arte Hart 
 
 0. 30, s. 28. DijJce, re Morrish, 22 Ch. D. 410. 
 
 {t) In the same words as stat. As to the previous law, see ante, 
 
 32 & 33 Vict. c. 71, s. 34 ; Ex p. 250.
 
 creditor. 
 
 2i)Q OF C'llOSES IN ACTION. 
 
 proofs and other matters eonuected with proof of debts 
 are contained iu the second schedule to the Act (ii). 
 
 By these rules a debt may be proved by delivering or 
 sending- through the post in a prepaid letter to the 
 official receiver, or, if a trustee has been appointed, to 
 the trustee, an affidavit verifying the debt {x). The 
 Secured affidavit must be in the prescribed form (y). If a 
 
 secured creditor realizes his secmity, he may prove for 
 the balance due to him, after deducting tlie net amount 
 realized {z) . If a secured creditor surrenders his security 
 to the official receiver or trustee for the general benefit 
 of the creditors, he may prove for his whole debt (a). 
 If a secured creditor does not either realize or surrender 
 his security, he shall, before ranking for dividend, state 
 in his proof the particulars of his security, the date 
 when it was given, and the value at which he assesses 
 it, and shall be entitled to receive a dividend only in 
 respect of the balance due to him after deducting the 
 value so assessed (b). Where a security is so valued 
 the trustee may at any time redeem it on payment to the 
 creditor of the assessed value. If the trustee is dis- 
 satisfied with the value at which a security is assessed, 
 he may require that the property comprised in any 
 secmity so valued be offered for sale at such times and 
 on such terms and conditions as may be agreed on 
 between the creditor and the trustee, or as, in default 
 of such agreement, the Court may direct. If the sale 
 be by public auction the creditor, or the trustee on 
 behalf of the estate, may bid or purchase. Provided 
 that the creditor may at any time, by notice in WTiting, 
 require the trustee to elect whether he will or will not 
 exercise his power of redeeming the security or requiring 
 
 {u) See sect. 39. {z) Sched. 2, rule 9. 
 
 {x) Sched. 2, rule 2. (a) Ibid, rule 10. 
 
 (y) See Sched. 2, rules 3—8; (i) Ibid, lule 11. 
 Bankruptcj' Rules, 1883, No. 169.
 
 OF BANKRUPTCY. 257 
 
 it to be realized, and if tlie trustee does not, within six 
 months after receiving tlie notice, signify in -sva-iting to 
 the creditor his election to exercise the power, he shall 
 not be entitled to exercise it ; and the equity of re- 
 demption, or any other interest in the property com- 
 prised in the security which is vested in the trustee, 
 shall vest in the creditor, and the amount of his debt 
 shall be reduced by the amount at which the secuiity 
 has been valued (r) . If a secured creditor does not 
 comply with the rules of the Act he is to be excluded 
 from all shai-e in any dividend {(I). The following 
 rules of the second schedule to the Act are also im- 
 portant: — 
 
 (Rule 18.) If a debtor was at the date of the receiv- Proof in 
 ing order liable in respect of distinct contracts as a distinct" 
 member of two or more distinct firms, or as a sole con- contracts. 
 tractor, and also as member of a firm, the circumstance 
 that the firms are in whole or in part composed of the 
 same individuals, or that the sole contractor is also one 
 of the joint contractors, shall not prevent proof in 
 respect of the contracts, against the properties re- 
 spectively hable on the contracts {e) . 
 
 (Eule 19.) When any rent or other payment falls Periodical 
 due at stated periods, and the receiving order is made P^y^®^ ^• 
 at any time other than one of those periods, the person 
 entitled to the rent or payment may prove for a pro- 
 portionate part thereof up to the date of the order as 
 if the rent or pajTuent grew due from day to day (/). 
 
 (Rule 20.) On any debt or simi certain, payable at a Interest. 
 certain time or otherwise, whereon interest is not re- 
 served or agreed for, and which is overdue at the date 
 of the receiving order and provable in banki'uptcy, the 
 
 (f) Ibid, rule 12. WaddcU, 5 App. Cas. 161. 
 
 (rf) Ibid, rule IG. (/) Substantially in the same 
 
 (c) Substantially in the same words as stat. 32 & 33 Vict. c. 71, 
 
 words as stat. 32 & 33 Vict. c. 71, 8. 35. 
 
 8. 37 ; see Banco de Foitu(jal v. 
 
 W.P.P. S
 
 258 
 
 OF CHOSES IN ACTION. 
 
 Debt payable 
 at a future 
 time. 
 
 creditor may prove for interest at a rate not exceeding 
 four per centum per annum to tlie date of the order 
 from tlio time wlion the debt or sum was payable, if tlie 
 debt or sum is payable by virtue of a written instru- 
 ment at a certain time, and if payable otherwise, then 
 from the time when a demand in writing has been 
 made giving the debtor notice that interest will be 
 claimed from the date of the demand until the time of 
 payment {g). 
 
 (Rule 21.) A creditor may prove for a debt not 
 payable when the debtor committed an act of bank- 
 ruptcy as if it were payable presently, and may receive 
 dividends equally with the other creditors, deducting 
 only thereout a rebate of interest at the rate of five 
 pounds per centum per annum computed from the 
 declaration of a dividend to the time when the debt 
 would have become payable, according to the terms on 
 which it was contracted [h). 
 
 The title of 
 the assignees 
 related back 
 to the act of 
 bankruptcy. 
 
 As the bankruptcy of a person consists in his com- 
 mitting an act of bankruptcy, and not in his being 
 adjudged bankrupt, his assignees (/), when appointed, 
 became entitled to all the real and personal estate of 
 which he was possessed at the hour when he committed 
 the act (/>•) ; though the legal estate in the bankrupt's 
 lands remained vested in him until conveyed to the 
 assignees by theb appointment (/). The title of the 
 assignees, it was said, related back to the act of bank- 
 ruptcy. The consequences of this rule were formerly 
 
 {g) See ante, p. 167. 
 
 \h) Stats. 12 & 13 Vict. c. 106, 
 B. 172 ; 6 Geo. IV. c. 16, s. 51 ; 
 49 Geo. III. c. 121, s. 9, were to 
 the like effect. This provision 
 ■was first introduced into the 
 bankruptcy law by stat. 7 Geo. 
 I. c. 31, as to debts secured by 
 bills, bonds, notes, or other per- 
 
 sons' securities. 
 
 {i) See ante, p. 224. 
 
 (Ji) Thomas v. Besanges, 2 Bar. 
 & Aid. 586; Rouch v. Great 
 Western Raihvay Comjmnif, 1 Q. 
 B. 51. 
 
 (/) Doe d. Esdaile v. Mitchell, 2 
 Mau. & Selw. 446. See ante, p. 
 224.
 
 OF BANKRUPTCY. 251) 
 
 very serious, as many bond fide transactions were over- 
 turned in conse(|ucnco of an act of bankruptcy having 
 been committed by one of the parties witliout the 
 knowhidgc of the other. But after several partial Former enact- 
 remcdies {i)i), it was enacted by the Act of 1849, that 
 all payments really and bona fide made by any bank- 
 rupt, or by any person on his behalf, before the filing 
 of a petition for adjudication of bankruptcy, and all 
 payments really and hond fide made to any bankrupt 
 before the filing of such petition, and all conveyances 
 by any bankrupt hond fide made and executed before 
 the filing of sueli petition, and all contracts, dealings 
 and transactions by and with any bankrupt really and 
 hond fide made and entered into before the filing of such 
 petition, and all executions and attachments against the 
 lands and tenements of any bankrupt hond fide executed 
 by seizure, and all executions and attachments against 
 the goods and chattels of any bankrupt hond fide exe- 
 cuted and levied by seizure and sale before the filing of 
 such petition, should be deemed to be valid, notwith- 
 standing any prior act of bankruptcy by such bankrupt 
 committed : provided the person so dealing with or 
 paying to or being paid by such bankrupt, or at whose 
 suit or on whose account such execution or attachment 
 should have issued, had not at the time of such j)ay- 
 ment, conveyance, contract, dealing or transaction, or 
 at the time of executing or levying such execution or 
 attachment, or at the time of making any sale there- 
 under, notice of any prior act of bankruptcy by him 
 committed (^?) . The effect of this enactment was to 
 substitute the filing of the petition for adjudication for 
 the act of bankruptcy, so far as respects all persons 
 dealing and acting hond Jidc and without notice of the 
 
 (»0 Stat. 46 Geo. III. c. 13.5, c. 11, s. 12; 2 & 3 Vict. c. 29. 
 B. 1 ; 49 Geo. III. c.l21, s. 2 ; 56 («) Stat. 12 & 13 Vict. c. 106, 
 
 Geo. III. c. 137, 8. 1 ; 6 Geo. IV. s. 133. 
 0. 16, ss. 81, 82, 84 ; 2 & 3 Vict. 
 
 s2
 
 260 OF CHOSES IX ACTION, 
 
 Provisions of act of l)ankruptcy. The Act of 1809 contained similar 
 ^ ^ ' provisions (o) for the protection of all conveyances of 
 property or other transactions effected, and of all exe- 
 cutions completed in good faith, without notice of an 
 available act of bankruptcy, before the date of the order 
 Present pro- of adjudication. On this subject the Bankruptcy Act, 
 
 1883 (p), now provides as follows : — 
 Relation back (Sect. 43.) The bankruptcy of a debtor, whether the 
 title_ same takes place on the debtor's owti petition or upon 
 
 that of a creditor or creditors, shall be deemed to have 
 relation back to, and to commence at, the time of the 
 act of banki'uptcy being committed on which a receiving 
 order is made against him ; or, if the bankrupt is proved 
 to have committed more acts of bankruptcy than one, 
 to have relation back to, and to commence at, the time 
 of the first of the acts of bankruptcy proved to have 
 been committed by the bankrupt within tlu-ee months 
 next preceding the date of the presentation of the bank- 
 ruptcy petition ; but no banki'uptcy petition, receiving 
 order or adjudication shall be rendered invalid by 
 reason of any act of bankruptcy anterior to the debt 
 of the petitioning creditor. 
 Restriction of (Sect. 45, sub-s. 1.) Where a creditor has issued 
 creditor under es:ecution against the goods or lauds of a debtor, or 
 execution or bas attached any debt due to him, he shall not be 
 entitled to retain the benefit of the execution or attach- 
 ment against the trustee in bankruptcy of the debtor, 
 unless he has completed the execution or attachment 
 before the date of the receiving order, and before notice 
 of the presentation of any banlaniptcy petition by or 
 against the debtor, or of the commission of any avail- 
 able act of bankruptcy by the debtor. 
 
 (Sub-s. 2.) For the pm-poses of this Act, an execu- 
 tion against goods is completed by seizure and sale ; an 
 attachment of a debt is completed by receipt of the 
 
 (o) Stat. 32 & 33 Vict. c. 71, (p) Stat. 46 & 47 Vict. c. 52. 
 
 ss. 94, 95.
 
 OF nANKRUPTCT. 201 
 
 debt; find an execution against land is completed by 
 seizm'e, or, in the case of an equitable interest, by the 
 appointment of a receiver. 
 
 (Sect. 46, sub-s. 1.) Where the goods of a debtor are Duties of 
 taken in execution, and before the sale thereof, notice is VqoL taken 
 served on the sheriff that a receiving order has been ^^ execution, 
 made against the debtor, the sheriif shall, on request, 
 deliver the goods to the official receiver or trustee under 
 the order, but the costs of the execution shall be a 
 charge on the goods so delivered, and the official 
 receiver or trustee may sell the goods, or an adequate 
 part thereof, for the purpose of satisfying the charge. 
 
 (Sub-s. 2.) "Where the goods of a debtor are sold 
 under an execution in respect of a judgment for a sum 
 exceeding twenty pounds, the sheriff shall deduct the 
 costs of the execution from the proceeds of sale, and 
 retain the balance for fom-teen days, and if within that 
 time notice is served on him of a bankruptcy petition 
 having being presented against or by the debtor, and 
 tlie debtor isadjudgedbanki-upt thereon or on any other 
 petition of which the sheriff has notice, the sheriff shall 
 pay tlie balance to the trustee in the bankruptcy, who 
 shall bo entitled to retain the same as against the 
 execution creditor, but otherwise he shall deal with it 
 as if no notice of the presentation of a banki-uptcy 
 petition had been served on him (q) . 
 
 (Sub-s. 3.) An execution levied by seizm-e and sale 
 on the goods of a debtor is not invalid by reason only 
 of its being an act of bankruptcy, and a person who 
 purchases the goods in good faith under a sale by the 
 sheriff shall in all cases acquire a good title to them 
 against the trustee in bankruptcy. 
 
 (Sect. 47, sub-s. 1.) Any settlement of property not Avoidance of 
 
 {q) The Act of 1869 contained against tlic goods of a h-adcr for 
 
 a provision similar to the above a sum exceeding 50/. ; see stat. 
 
 sub-sectiou, but only applying 32 & 33 Vict. c. 71, s. 87. 
 in the case of an execution
 
 262 
 
 OK CIIOSKS IN AOTIOX. 
 
 voluntary iDeinff a Settlement made before and in consideration of 
 
 settleineuts. . . „ 
 
 marriage, or made m favour of a j^m'cliaser or incum- 
 brancer in good faitb and for valuable consideration, or 
 a settlement made on or for the mfe or ehildi'en of the 
 settlor of property vi^hich has accrued to the settlor after 
 man-iage in right of his wife, shall, if the settlor becomes 
 bankrupt within tAvo years after the date of the settle- 
 ment, be void against the trustee in the bankruptcy, and 
 shall, if the settlor becomes bankiTipt at any subsequent 
 time "within ten years after the date of the settlement, 
 be void against the trustee in the bankruptcy, unless the 
 parties claiming under the settlement can prove that the 
 settlor was at the time of making the settlement able to 
 pay all his debts without the aid of the property com- 
 prised in the settlement, and that the interest of the 
 settlor in such property had passed to the trustee of such 
 settlement on the execution thereof (r). 
 
 (Sub-s. 2.) Any covenant or contract made in con- 
 sideration of marriage, for the future settlement on or 
 for the settlor's wife or children of any money or pro- 
 perty wherein he had not at the date of his marriage 
 any estate or interest, whether vested or contingent in 
 possession or remainder, and not being money or pro- 
 perty of or in right of his "wife, shall, on his becoming 
 bankrupt before the property or money has been actu- 
 ally transferred or paid pm-suant to the contract or 
 covenant, be void against the trustee in the bank- 
 ruptcy (s) . 
 
 (Sub-s. 3.) " Settlement " shall for the pm^poses of 
 this section include any conveyance or transfer of pro- 
 perty (/). 
 
 (>•) See JEx parte Suxtable, re L. R., 8 Ch. 718 ; Hx parte Bol- 
 
 Conibeer, 2 Ch. D. 54; Ex parte land, re Clint, L. E., 17 Eq. 115 ; 
 
 Hillman, re Fumfret/, 10 Ch. D. Fe Andrews' Trusts, 7 Ch. D. 635, 
 
 622; Ex parte Eussell, re Butter- decided on stat. 32 & 33 Vict. 
 
 worth, 19 Ch. D. 588, decided on c. 71, s. 91. 
 Stat. 32 & 33 Vict. c. 71, s. 91. {t) The Act of 1869 contained 
 
 (s) Ex parte Bishop, re Tonnies, provisions bimilar to those of the
 
 OF BANKRUPTCY. 2G3 
 
 (Sect. 48, sub-s. 1.) Every conveyance or transfer of Avoidance of 
 property, or cliarge thereon made, every pa}anent made, S^^T^es^ 
 every obligation inciuTed, and every judicial proceeding 
 taken or suffered by any person imable to pay his debts 
 as they become due from his own money in favour of 
 any creditor, or any person in trust for any creditor, 
 with a view of giving such creditor a preference over 
 the other creditors, shall, if the person maldng, taking, 
 paying, or suffering the same is adjudged banki'upt on 
 a banki'uptcy petition presented within three months 
 after the date of making, taking, paying, or suffering 
 the same, be deemed fraudulent and void as against the 
 trustee in the bankruptcy. 
 
 (Sub-s. 2.) This section shall not affect the rights of 
 any person making title in good faith and for valuable 
 consideration through or imder a creditor of the bank- 
 rupt (?f ) . 
 
 (Sect. 49.) Subject to the foregoing provisions of this Protection of 
 
 A, •■. ,, ,1 m.Pii 1 transactions 
 
 Act With respect to the efiect oi bankruptcy on an hondjide 
 execution or attachment, and with resyject to the avoid- "^itliout 
 
 ' •■■ . . notice. 
 
 auce of certain settlements and preferences, nothing in 
 this Act shall invalidate, in the case of a banki'uptey — 
 
 (a) Any payment by the bankrupt to any of his 
 
 creditors, 
 
 (b) Any payment or delivery to the banla'upt, 
 
 (c) Any conveyance or assignment by the bankrupt 
 
 for valuable consideration, 
 
 (d) Any contract, dealing, or transaction by or with 
 
 the banki'upt for valuable consideration : 
 
 above section, but applying only see Ex parte Craven, L. R., 10 
 
 to traders; see stat. 32 ^V- 33 Vict. Eq. 648 ; Ex parte Tempest, L. R., 
 
 c. 71,8. 91; ante, p. 190; Ex 8 Ch. 70; liutcher v. Stead, L.Tl, 
 
 parte Dawson, L. R., 19 Eq. 433. 7 H. L. 839 ; Ex parte Hall, re 
 
 {u) The above section ia sub- Cooper, 19 Ch. D. 580 ; Ex parte 
 
 stantially in the same words as Griffith, re JFileoxon, 23 Ch. D. 
 
 Btat. 32 & 33 Vict. c. 71, s. 92; C9, decided upon that enactment.
 
 264 OF CHOSES IN ACTION. 
 
 Provided that both the following conditions are com- 
 plied with, namely — 
 
 (1.) The payment, delivery, conveyance, assignment, 
 contract, dealing, or transaction, as the case 
 may he, takes place before the date of the 
 receiving order; and 
 
 (2.) The person (other than the debtor) to, by, or with 
 whom the payment, delivery, conveyance, 
 assignment, contract, dealing, or transaction 
 was made, executed, or entered into, has not 
 at the time of the payment, delivery, convey- 
 ance, assignment, contract, dealing, or trans- 
 action, notice of any available act of bank- 
 ruptcy committed by the bankrupt before that 
 time. 
 
 The certifi- If the bankrupt had duly surrendered and conformed 
 
 to the bankrupt law, he was formerly entitled to a certi- 
 ficate of conformity, by which he was discharged from 
 all debts due by him when he became bankrupt, and 
 from all claims and demands made provable under the 
 bankruptcy {,r). Formerly the certificate was requii'cd 
 to be signed by a given proportion of the creditors (y) ; 
 but, by an Act of the year 1842, and the Act of 
 1849, the Court was constituted the sole judge of any 
 objections which might be made by any creditors 
 against allowing the certificate ; and the Court might 
 either allow the same or refuse or suspend the allow- 
 ance thereof, or annex such conditions thereto as the 
 justice of the case might require {z). The certificates 
 were by the Act of 1849 divided into three classes. If 
 the bankruptcy had arisen from unavoidable losses and 
 
 (x) stats. 5 Geo. II. c. 30, ss. (i/) Stats. 5 Geo. II. c. 30, s. 
 
 7, 10; 6 Geo. IV. c. 16, ss. 121, 10 ; 6 Geo. IV. c. 16, s. 122. 
 122 ; 12 & 13 Vict, c, 106, ss. (z) Stats. 5 & 6 Vict. c. 122, s. 
 
 199, 200. 39 ; 12 & 13 Vict. c. 106, s. 198.
 
 OF HANKUUPTCY. 205 
 
 misfortunes, the banki'upt was entitled to a certificate of 
 the first class. If the bankruptcy had not ivhoUij arisen 
 from unavoidable losses and misfortunes, he was entitled 
 to a certificate of the second class. And if the bank- 
 ruptcy had not arisen from im avoidable losses or misfor- 
 tunes, he was only entitled to a certificate of the third 
 class (rt). But all classification of certificates was abo- 
 lished by the Bankruptcy Act, 1861 (i) ; and the bank- 
 rupt, if he had properly conducted himself, became 
 entitled to an order of discharge, which discharged him Order of 
 from all debts, claims or demands, provable under his "^^'^^^^'"S^- 
 bankruptcy (r). Under the Act of 18G9 a bankrupt 
 might also obtain an order of discharge upon the con- 
 ditions specified in the Act {d). An order of discharge 
 under the Act of 1869 did not release the bankrupt 
 from any debt or liability incurred by means of any 
 fraud or breach of trust, nor from any debt or liability 
 whereof he had obtained forbearance by any fraud, but 
 it released the bankrupt from all other debts i:)rovable 
 under the bankruptcy, with the exception of (1) debts 
 due to the crown (r), and (2) debts with which the 
 bankrupt stood charged at the suit of the crown or of 
 any person for any offence against a statute relating to 
 any branch of the public revenue, or at the suit of the 
 sheriff or other public ofiieer on a bail bond entered 
 into for the appearance of any person prosecuted for 
 any such offence (/). The Bankruptcy Act, 1883 (r/), 
 contains the following provisions with regard to the 
 discharge of a bankrupt : — 
 
 (Sect. 28, sub-s. 1.) A bankrupt may, at any time Discharge of 
 after being adjudged baulo-upt, apply to the Court for ^^^^^"P*^- 
 an order of discharge, and the Court shall appoint a 
 
 {a) Stat. 12 & 13 Vict. c. 106, {d) Stat. 32 & 33 Vict. c. 71, 
 
 Sched. Z. 8. IS. 
 
 {h) Stat. 24 & 25 Vict. c. 134, {e) See ante, p. 249. 
 
 8. 157. (/) Sect. 49, 
 
 (c) Sect. 161. {g) Stat. 46 & 47 Vict. o. 52.
 
 266 
 
 01'' CHOSKS IN ACTION. 
 
 day for hearing- tlio application, but the application 
 shall not be hoard until the public examination of the 
 baukrujit is concluded. The application shall be heard 
 in open Court {/t). 
 
 (Sub-s. 2.) On the hearing of the application the 
 Court shall take into consideration a report of the official 
 receiver as to the bankrupt's conduct and affairs, and 
 may either grant or refuse an absolute order of dis- 
 charge, or suspend the operation of the order for a 
 specified time, or grant an order of discharge subject to 
 any conditions with respect to any earnings or income 
 which may afterwards become due to the bankrupt, or 
 with respect to his after-acquired property : Provided 
 that the Court shall refuse the discharge in all cases 
 where the bankrupt has committed any misdemeanor 
 under this Act, or Part II. of the Debtors Act, 1869, 
 or any amendment thereof, and shall, on proof of any 
 of the facts hereinafter mentioned, either refuse the 
 order, or suspend the operation of the order for. a speci- 
 fied time, or grant an order of discharge, subject to such 
 conditions as aforesaid. 
 
 (Sub-s. o.) The facts hereinbefore referred to are — 
 
 (a) That the bankrupt has omitted to keep such 
 
 books of account as are usual and proper in 
 the business carried on by him and as suffi- 
 ciently disclose his business transactions and 
 financial position within the three years im- 
 mediately preceding his bankruj^tcy : 
 
 (b) That the bankrupt has continued to trade after 
 
 knowing himself to be insolvent : 
 
 (c) That the bankrupt has contracted any debt prov- 
 
 able in the bankruptcy, without having at the 
 time of contracting it any reasonable or pro- 
 bable ground of expectation (proof whereof 
 shall lie on him) of being able to pay it : 
 
 (d) That the bankrupt has brought on his bankruptcy 
 
 (A) See Bankruptcy Rules, 1883, No. 178.
 
 OF nANKuri'n V. 267 
 
 by rash and hazardous speculations or unjusti- 
 fiable extravagance in living : 
 
 (e) That the banla'upt has put any of his creditors 
 
 to unnecessary expense by a frivolous or vexa- 
 tious defence to any action properly brought 
 against him ; 
 
 (f ) That the bankrupt has within three months pre- 
 
 ceding the date of the receiving order, when 
 unable to pay his debts as they become due, 
 given an undue preference to any of his 
 creditors : 
 
 (g) That the bankrupt has on any previous occasion 
 
 been adjudged bankrupt, or made a statutory 
 
 composition or arrangement with his creditors: 
 
 (h) That the bankrupt lias been guilty of any fraud 
 
 or fraudulent breach of trust. 
 (Sub-s. 4.) For the purposes of this section the report 
 of the official receiver shall be prima facie evidence of 
 the statements therein contained. 
 
 (Sub-s. 5.) Notice of the appointment by the Court 
 of the day for hearing the application for discharge 
 shall be published in the prescribed manner (/), and 
 sent fourteen days at least before the day so appointed 
 to each creditor who has proved, and the Court may 
 hear the official receiver and the trustee, and may also 
 hear any creditor. At the hearing the Court may put 
 such questions to the debtor and receive such evidence 
 as it may thinlc fit. 
 
 (Sub-s. (5.) The Com't may, as one of the conditions 
 referred to in this section, require the bankrupt to con- 
 sent to judgment being entered against him by the 
 official receiver or trustee for any balance of the debts 
 provable under the bankruptcy which is not satisfied at 
 the date of his discharge ; but in such case execution 
 shall not be issued on the judgment without leave of 
 the Court, which leave may be given on proof that the 
 
 (0 WuL
 
 settlements. 
 
 268 OF CHOSES IN ACTION. 
 
 bankrupt lias since his discliargG acquired property or 
 income available for payment of his debts (./). 
 
 (Sub-s. 7.) A discharged bankrupt shall, notwith- 
 standing his discharge, give such assistance as the 
 trustee may require in the realization and distribution 
 of such of his property as is vested in the trustee, and 
 if he fails to do so he shall be guilty of a contempt of 
 Court ; and the Court may also, if it thinks fit, revoke 
 his discharge, but without prejudice to the validity of 
 any sale, disposition, or payment duly made or thing 
 duly done subsequent to the discharge, but before its 
 revocation. 
 Fraudulent (Scct. 29.) In either of the following cases; that is 
 
 to say, 
 
 (1.) In the case of a settlement made before and in 
 consideration of marriage where the settlor is 
 not at the time of making the settlement able 
 to pay all his debts without the aid of the 
 property comprised in the settlement ; or 
 (2.) In the case of any covenant or contract made in 
 consideration of marriage for the future settle- 
 ment on or for the settlor's wife or children 
 of any money or property wherein he had not 
 at the date of his marriage any estate or 
 interest (not being money or projperty of or in 
 right of his wife) ; 
 If the settlor is adjudged bankrupt or compounds or 
 arranges with his creditors, and it appears to the Court 
 that such settlement, covenant, or contract was made in 
 order to defeat or delay creditors, or was unjustifiable 
 having regard to the state of the settlor's affairs at the 
 time when it was made, the Court may refuse or sus- 
 pend an order of discharge, or grant an order subject 
 to conditions, or refuse to approve a composition or 
 arrangement, as the case may be, in like manner as in 
 cases where the debtor has been guilty of fraud. 
 
 U) See Rules 181, 182.
 
 OF BANKRUPTCY. 2G9 
 
 (Sect. 30, sub-s. 1.) An order of discharge shall not Effect of order 
 release the bankrupt from any debt on a recognizance ^^ <iischarge. 
 nor from any debt with which the bankrupt may be 
 chargeable at the suit of the Crown or of any person 
 for any offence against a statute relating to any branch 
 of the public revenue, or at the suit of the sheriff or 
 other public officer on a bail bond entered into for the 
 appearance of any person prosecuted for any such 
 offence : and he shall not be discharged from such ex- 
 cepted debts imless the Treasmy certify in writing their 
 consent to his being discharged therefrom. An order 
 of discharge shall not release the bankrupt from any 
 debt or liability incurred by means of any fraud or 
 fraudulent breach of trust to which he was a party, nor 
 from any debt or liability whereof he has obtained for- 
 bearance by any fraud to which he was a party. 
 
 (Sub-s. 2.) An order of discharge shall release the 
 bankrupt from all other debts provable in banki-uptcy. 
 
 (Sub-s. 3.) An order of discharge shall be conclusive 
 e\'idence of the bankruptcy, and of the validity of the 
 proceedings therein, and in any proceedings that may 
 be instituted against a bankrupt who has obtained an 
 order of discharge in respect of any debt from which he 
 is released by the order, the banlu'upt may plead that 
 the cause of action occuiTcd before his discharge, and 
 may give this Act and the special matter in evidence. 
 
 (Sub-s. 4.) An order of discliarge shall not release 
 any person who at the date of the receiving order was 
 a partner or co-trustee with the bankrupt or was jointly 
 bound or had made any joint contract with him, or any 
 person who was surety or in the natui'c of a surety for him. 
 
 Until the bankrupt obtained his certificate (/•), all the Property 
 
 real and personal property which might descend, revert, baukriiptcy*^^ 
 or be devised or bequeathed or come to him, became 
 
 vested in his assignees (/). 13ut an uncertificated bank- Rights of 
 
 {k) Sec ante, -p. 2Gi. G3, G4 ; 12 & 13 Vict. c. lOG, 
 
 (0 Stats. G Geo. IV. c. IG, ss. .ss. 141, 142.
 
 270 OF CIIOSES IN ACTION. 
 
 Tinopi-tificated rupt miglit maintain an action for liis personal labour 
 au-iiip . performed after the bankruptcy {iii), and he might also 
 sue iu respect of contracts made with himself, and also 
 in respect of any after-acquired property, if the assignees 
 or creditors did not interfere (??). The Court, however, 
 was empowered by the Act of 18G1 in certain cases of 
 misconduct, either to refuse or suspend the order of dis- 
 charge, or to grant the same subject to any conditions 
 touching any salary, pay, emoluments, profits, wages, 
 earnings or income, which might afterwards become 
 due to the banlo-upt, and touching his after-acquired 
 property (o). The Act of 1869, as we have seen (;j), 
 substituted the trustee for the assignees ; and it vested 
 in him all the property of the bankrupt at the com- 
 mencement of the bankruptcy, or which might be ac- 
 quired by or devolve on him during its continuance (q). 
 But either the closing of the bankruptcy before the 
 order of discharge (r), or the order of discharge before 
 the closing of the bankruptcy (s), had the effect of re- 
 leasing all the after-acquired property of the bankrupt. 
 The Act also contained certain provisions with regard to 
 the status of an undischarged bankrupt (i). Under the 
 Bankruptcy Act, 1883 {ii), as we have seen (^), all 
 property, which may be acquired by or devolve on a 
 bankrupt before /us discharge, is divisible amongst his 
 creditors and vests in the trustee in bankruptcy. But 
 the Court may grant an order of discharge, subject to 
 any conditions with respect to any earnings or income 
 which may afterwards become due to the bankrupt, or 
 
 (m) Silk V. Osborne, 1 Esp. E. {>■) In re Fettii's Trusts, C. J. 
 
 ■ 140. B., 24 W. R. 359 ; L. E., 1 Ch. 
 
 (n) Webb V. Fox, 7 T. Rep. D. 478. 
 391 ; Drayton v. Bale, 2 Barn. & (*) Ebbs v. Boulnois, 23 W. R. 
 
 Cress. 293; Crofton v. Foole, 1 S20 ; L. R., 10 Ch. 479. 
 Barn. & Adol. 568. {t) See stat. 32 & 33 Vict. 
 
 (o) Stat. 24 & 25 Vict. c. 134, c. 71, s. 54. 
 e. 159. {u) Stat. 46 & 47 Vict. c. 52, 
 
 {p) Ante, p. 225. ss. 44, 54. 
 
 Iq) Stat. 32 & 33 Vict. c. 71, [x) Ante, pp. 224, 232—234. 
 
 s. 15.
 
 OF BANKllUPTCY. 271 
 
 witli respect to his after-acquired property (//). The 
 Bankruptcy Hules, 1883, jirovide (;:) that where a bank- 
 rupt is discharged, subject to the condition that judg- 
 ment shall be entered against him under sect. 28 of 
 the Act {(i), or subject to any other condition as to his 
 after-acquired property, it sliall be his duty, until such 
 judgment or condition is satisfied, from time to time to 
 give the official receiver such information as he may 
 require with respect to his after-acquired property, and 
 not less than once a year to file in the Court a state- 
 ment, sho-wing the particulars of any property or income 
 he may have acqiiu'cd subsequent to his discharge. 
 
 Part II. of the Banki-uptcy Act, 1883, specifies the 
 disqualifications incm'red by being adjudged bankrupt, 
 and gives the Court power to annul an adjudication of 
 bankruptcy in certain cases. Part II. consists of the 
 following sections : — ■ 
 
 (Sect. 32, sub-s. 1.) Where a debtor is adjudged Disqualiflca- 
 bankrupt he shall, subject to the provisions of this Act, bankrupt. 
 be disqualified for — 
 
 (a) Sitting or voting in the House of Lords, or on 
 
 any committee thereof, or being elected as a 
 peer of Scotland or Ireland to sit and vote in 
 the House of Lords ; 
 
 (b) Being elected to, or sitting or voting in, the 
 
 House of Commons, or on any committee 
 thereof ; 
 
 (c) Being appointed or acting as a justice of the 
 
 peace ; 
 
 (d) Being elected to or holding or exercising the 
 
 office of mayor, alderman, or councillor ; 
 
 (e) Being elected to or holding or exercising the 
 
 office of guardian of the poor, overseer of the 
 poor, member of a sanitary authority, or 
 
 (y) Sect. 28, ante, p. 2G6. {a) Ante, p. 267. 
 
 (s) Rule 182.
 
 272 
 
 OF CHOSES IN' ACTION. 
 
 Vacatlnfi: of 
 seat in House 
 of Commons. 
 
 Vacating of 
 municipal and 
 other offices. 
 
 Power for 
 Court to 
 annul adjudi- 
 cation in 
 certain cases. 
 
 member of a school board, highway board, 
 
 burial board, or select vestry. 
 (Sub-s. 2.) The disqualifications to which a bankrupt 
 is subject under this section shall be removed and cease 
 if and when, — 
 
 (a) The adjudication of bankruptcy against him is 
 
 annulled ; or 
 
 (b) He obtains from the Court his discharge with a 
 
 certificate to the effect that his bankruptcy 
 was caused by misfortune without any mis- 
 conduct on his part. 
 The Coui't may grant or withhold such certificate as it 
 thinks fit, but any refusal of such certificate shall be sub- 
 ject to appeal. 
 
 (Sub-s. 3.) The disqualifications imposed by this sec- 
 tion shall extend to all parts of the United Kingdom. 
 
 (Sect. 33, sub-s. 1.) If a member of the House of 
 Commons is adjudged bankrupt, and the disqualifica- 
 tions arising therefrom under this Act are not removed 
 within six months from the date of the order, the Court 
 shall, immediately after the expiration of that time, 
 certify the same to the Speaker of the House of 
 Commons, and thereupon the seat of the member shall 
 be vacant. 
 
 (Sect. 34.) If a person is adjudged banla'upt whilst 
 holding the office of mayor, alderman, councillor, guar- 
 dian, overseer, or member of a sanitary authority, school 
 board, highway board, burial board, or select vestry, his 
 office shall thereupon become vacant. 
 
 (Sect. 35, sub-s. 1.) Where in the opinion of the 
 Court a debtor ought not to have been adjudged bank- 
 rupt, or where it is proved to the satisfaction of the 
 Court that the debts of the banki'upt are paid in full, 
 the Court may, on the application of any person in- 
 terested, by order, annul the adjudication. 
 
 (Sub-s. 2.) Where an adjudication is annulled under 
 this section all sales and dispositions of property and
 
 OF KANKRUPTCY. 273 
 
 payments duly made, and all acts theretofore done, by 
 the official receiver, trustee, or other person acting under 
 their authority, or by the Court, shall be valid, but the 
 property of the debtor who was adjudged bankrupt 
 shall vest in such person as the Court may apponit, or 
 in default of any such appointment revert to the debtor 
 for all his estate or interest therein on such terms and 
 subject to such conditions, if any, as the Court may 
 declare by order. 
 
 (Sub-s. 3.) Notice of the order annulling an adjudi- 
 cation shall be forthwith gazetted and published in a 
 local paper. 
 
 (Sect. 30. ) For the pm-poses of this part of this Act, Meaning of 
 any debt disputed by a debtor shall be considered as ^ebtsln full. 
 paid in full, if the debtor enters into a bond, in such 
 sum and with such sureties as the Court approves, to 
 pay tlie amount to be recovered in any proceeding for 
 the recovery of or concerning the debt, wdth costs, and 
 any debt due to a creditor who cannot be found or 
 cannot be identified shall be considered as paid in full 
 if paid into Com't. 
 
 With regard to the exercise of bankruptcy jurisdic- Exercise of 
 tion, the Act of 1883 provides {h) that all matters, jurisdiction 
 which would have been within the exclusive jurisdic- ^^^^^ ^'^^ °^ 
 tion of the London Bankruptcy Court, if the Act had 
 not passed, and all matters, in respect of which juris- 
 diction is given to the High Court by the Act (c), shall 
 be ordinarily disposed of by or under the direction of 
 one of the judges of the High Court; and that the Special judge 
 Lord Chancellor shall from time to time assign a judge bankruptcy 
 for that purpose. Subject to the provisions of the Act business. 
 and to general rules the judge of the High Court exer- 
 cising jurisdiction in bankruptcy may exercise in cham- In chambers. 
 
 (b) Sect. 94. {c) See anU; p. 211. 
 
 M.T.r. T
 
 274 
 
 OF CTIOSES TX ACTION. 
 
 Matters to bo bers the whole or any part of liis jurisdiction {d). By 
 cSlS.'" ^^e Bankruptcy Rules, 1883 {c), the f(jllowing matters 
 
 and ;i}»plications shall he heard and determined in open 
 Court, namely : — ■ 
 
 (a.) The public examination of debtors ; 
 
 (b.) Applications to approve a composition or scheme 
 
 of arrangement ; 
 (c.) Applications for orders of discharge or certificates 
 
 of removal of disqualifications ; 
 (d.) Appeals from the Board of Trade to the High 
 
 Court ; 
 (e.) Applications to set aside or avoid any settlement, 
 conveyance, transfer, security, or payment, or 
 to declare for or against the title of the trustee 
 to any property adversely claimed ; 
 (f.) Applications for the committal of any person to 
 
 prison for contempt ; 
 (g.) Appeals against the rejection of a proof, or ap- 
 plications to expunge or reduce a proof, where 
 the amount of the proof exceeds 200/. ; 
 (h.) Applications for the trial of issues of fact with a 
 
 jury, and the trial of such issues. 
 Any other matter or application may be heard and 
 determined in chambers. 
 
 Registrars. A large proportion of bankruptcy business is trans- 
 
 acted by the registrars. Section 99 of the Act of 
 1883 provides as follows : — 
 Jurisdiction (Sub-s. 1.) The registrars in bankruptcy of the High 
 
 of re-^istrar.*^"'^ Court, and the registrars of a County Court having 
 jmisdiction in bankruptcy, shall have the powers and 
 jurisdiction in this section mentioned, and any order 
 made or act done by such registrars in the exercise of 
 the said powers and jimsdiction shall be deemed the 
 order or act of the Court. 
 
 (Sub-s. 2.) Subject to general rules limiting the powers 
 
 [d) Sect. 98. 
 
 {e) Rule 5.
 
 OF ]iAXKUT]'T(V. 275 
 
 conferred by this section (/), a registrar shall have 
 power — ■ 
 
 (a.) To hear bankruptcy petitions, and to make re- 
 ceiving- orders and adjudications thereon : 
 (b.) To hold the public examination of debtors : 
 (c.) To grant orders of discharge where the applica- 
 tion is not opposed : 
 (d.) To approve compositions or schemes of arrange- 
 ment when thoy are not opposed : 
 (e.) To make interim orders in any case of urgency : 
 (f.) To make any order or exercise any jurisdiction 
 which by any rule in that behalf is prescribed 
 as proper to be made or exercised in chambers: 
 (g.) To hear and determine any unopposed or ex parte 
 
 application : 
 (h.) To summon and examine any person known or 
 suspected to have in his possession effects of 
 the debtor or to be indebted to him, or capable 
 of giving information respecting the debtor, 
 his dealings or property. 
 (Sub-s. 3.) The registrars in bankruptcy of the High 
 Comt shall also have power to grant orders of discharge 
 and certificates of removal of disqualifications, and to 
 approve compositions and schemes of arrangement. 
 
 (Sub-s. 4.) A registrar shall not have power to com- 
 mit for contempt of Comi. 
 
 (Sub-s. 5.) The Lord Chancellor may from time to 
 time by order direct that any specified registrar of a 
 County Court shall have and exercise all the powers of 
 a bankruptcy registrar of the High Court. 
 
 Appeals in bankruptcy are now regulated Ijy the Appeals iu 
 
 p n • • • baukruptcy. 
 
 lollowmg provisions : — ■ ^ •' 
 
 (1) Every Court having jurisdiction iu bankruptcy 
 
 (/) Rule 6 of the Baukruptcy hear and dctermiue any matter 
 
 Rules, 1883, provides that a or application mentioned in sect, 
 
 registrar may, under the general 99, sub-s. 2 of the Act. 
 or special directions of the judge, 
 
 t2
 
 276 01' CTIOSES IN ACTION. 
 
 under this Act may review, rescind, or vary any order 
 made by it under its bankruptcy jurisdiction. 
 
 (2) Orders in banla'uptcy matters shall, at the in- 
 ■ stance of any person aggrieved, be subject to appeal as 
 follows : — 
 
 (a.) An appeal shall lie in bankruptcy matters, at 
 the instance of any person aggrieved, from 
 the order of a County Court to a Divisional 
 Court of the High Court of Justice, of which 
 the judge to whom bankruptcy business shall 
 for the time being be assigned shall f(jr the 
 pui'pose of hearing any such appeal be a 
 member. The decision of such Divisional 
 Court upon any such appeal shall be final and 
 conclusive, unless in any case it shall seem fit 
 to the said Divisional Court or to the Court 
 of Appeal to give special leave to appeal 
 therefrom to Her Majesty's Court of Appeal, 
 whose decision in such case shall be final and 
 conclusive, 
 (b.) An appeal shall lie from the order of the High 
 
 Coiu't to Her Majesty's Court of Appeal : 
 (c.) An appeal shall, with the leave of Her Majesty's 
 Court of Appeal, but not otherwise, lie from 
 the order of that Court to the House of Lords : 
 (d.) No appeal shall be entertained except in con- 
 formity Avith such general rules as may for 
 the time being be in force in relation to tlie 
 appeal (g). 
 The Bankruptcy Rules, 1883, provide (1) that, ex- 
 cept by leave of the Court, there shall be no appeal to 
 the Court of Appeal from any order made by consent, 
 or as to costs only ; (2) that no appeal to the Com't of 
 Appeal shall be brought from any order relating to 
 property, when it is apparent from the proceedings that 
 
 iff) Stat. 46 & 47 Vict. c. .52, s. 104, as amended by stat. 47 Vict. 
 c. 9, s. 2.
 
 OF l{ANKRrPT(;Y. 277 
 
 tlie money or the money's worth involved does not 
 exceed 50/., unless by leave of the Court ; (3) and 
 that no appeal shall be brought in respect of the 
 omission by the Court appealed from to exercise any 
 discretionary power, imless the Court shall, in its 
 judgment, or on application made at the hearing, have 
 expressly refused to exercise such power, in which case 
 the refusal may be made a ground of appeal {//) . The Time for 
 Rules also provide (/) that, subject to the powers of the ^^^^^ ■ 
 Com't of Appeal to extend the time under special cir- 
 cumstances, no appeal to the Court of Appeal from any 
 order of the Court shall be brought after the expiration 
 of twenty-one da^^s. And the party intending to appeal Security for 
 is required to lodge 20/. in the High Court at the time appeal. 
 of entering the appeal, as secmuty for costs ; but the 
 Court of Appeal may in any special case increase or 
 diminish the amount of such security or dispense there- 
 with (/•). 
 
 Special provision is made by the Bankruptcy Act, Small bank- 
 1883, for the administration of debtors' estates, which ^"^^ °^^'^' 
 are of small value. An estate, which is not likely to 
 exceed 300/. in value, may be ordered to be admi- 
 nistered in a summary manner in accordance with the 
 following provisions : — 
 
 (Sect. l'2l.) When a petition is presented by or Summary 
 against a debtor, if tlie Court is satisfied by affidavit tion ki^tma'il 
 or othervkdse, or the official receiver reports to the Court cases. 
 that the property of the debtor is not likel}' to exceed 
 in value 300/., the Court may make an order that the 
 debtor's estate be administered in a summary manner, 
 and thereupon the provisions of this Act shall be subject 
 to the following modifications : — 
 
 (1.) If the debtor is adjudged bankrupt, the official 
 receiver shall be the trustee in the bankruptcy : 
 
 {/>) Eule 111. (0 Eulc 112. (/.•) Rule 113.
 
 278 
 
 OF CJIOSKS IN ACTION'. 
 
 (2.) There .shall be no committeo of inspection, but 
 the ofRcial reeciver may do with the permis- 
 sion of the Board of Trade all things which 
 may be done by the trustee with the permis- 
 sion of the committee of inspection : 
 (3.) Such other modifications may be made in the 
 provisions of this Act as may be prescribed by 
 general rules with the view of saving expense 
 and simplifying- procedure ; but nothing in this 
 section shall permit the modification of the 
 provisions of this Act relating to the exami- 
 nation or discharge of the debtor. 
 Provided that the creditors may at any time, by sj)ecial 
 resolution, resolve that some person other than the 
 official receiver be appointed trustee in the bank- 
 ruptcy, and thereupon the bankruptcy shall proceed as 
 if an order for summary administration had not been 
 made. 
 
 (Bankruptcy Rules, 18S3, r. 199.) Where an estate 
 is ordered to be administered in a summary manner, 
 under sect. 121 of the Act, the provisions of the Act 
 and these Rules shall, subject to any sj^ecial direction 
 of the Com't, be modified as follows, namely : — 
 
 (1.) No advertisement of any proceeding in a local 
 
 newspaper shall be necessary, 
 (2.) All questions of law and fact shall be deter- 
 mined by the Court having jurisdiction in the 
 matter, and no application for a jury shall be 
 entertained. 
 (3.) If 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 that the composition or scheme projoosed 
 is not reasonable or calcidated to benefit the 
 general body of creditors, the Court may forth- 
 with adjudge the debtor bankrupt. 
 (4.) If during or at the conclusion of the public
 
 Ol' liAMvRl I'JCV. 270 
 
 examination of the debtor it appears to the 
 Court that a composition or scheme ought not 
 to be sanctioned by reason of the conduct of 
 the debtor, the Court may fortliwith adjudge 
 the debtor bankrupt. 
 
 (5.) No appeal shall lie from any order of the Coiu-t 
 except by leave of the Court. 
 
 (6.) All payments shall, unless the Board of Trade 
 otherwise orders, be made into and out of the 
 Bank of England. 
 
 (7.) Except for the purpose of confirming a compo- 
 sition or scheme, there shall be only one meet- 
 ing of creditors. The meeting may, where it 
 seems expedient, be held on the day appointed 
 for the public examination of the debtor. 
 
 (8.) Tlie estate shall be realised with all reasonable 
 despatch, and, where practicable, distributed 
 in a single dividend when realised. 
 
 "We have seen (/) that a man's creditors are not Debtors 
 entitled to present a bankruptcy petition against him, ^iJ^^thau 
 unless their debts amount together to 50/. But, under ^0/. 
 the following section of the Banki'uptcy Act, 1883, a 
 County Court may make an order for the adminis- 
 tration of the estate of a person, whose whole indebted- 
 ness amounts to a sum not exceeding 601. ; and the 
 debtor may be discharged from his debts by means of 
 such an order. 
 
 (Sect. 122, sub-s. 1.) Wliere a judgment has been Power for 
 obtained in a County Court, and the debtor is unable to to°ni!iko 
 pay the amount forthwith, and alleo:os that his whole a<iiQiuif^tra- 
 
 . T -1 i 1 V i . -,. ^^ tion order 
 
 indebtedness amounts to a sum not exceeding 50/., instead of 
 inclusive of the debt for whieli the judgment is ob- o'^''^^'^" ^<^^ 
 tained, the County Court may make an order providing instalments. 
 for the administration of his estate, and for the payment 
 
 (0 Anlc, p. 213,
 
 280 OF (HOSES IX ACTION. 
 
 of his cleLts l)y instalments or otherwise, and either in 
 full or to such extent as to the County Court under the 
 circumstances of the case appears practicable, and sub- 
 ject to any conditions as to his future earnings or income 
 which the Court may think just. 
 
 (Sub-s. 2.) The order shall not bo invalid by reason 
 only that the total anioimt of tlie debts is found at any 
 time to exceed 50/., but in such case the County Court 
 may, if it thinks fit, set aside the order, 
 
 (Sub-s. 3.) "Where, in the opinion of the County 
 Court in which the judgment is obtained, it would be 
 inconvenient that that Court should administer the estate, 
 it shall cause a certificate of the judgment to be for- 
 warded to the County Court in the district of which the 
 debtor or the majority of the creditors resides or reside, 
 and thereupon the latter County Court shall have all the 
 powders which it would have under this section, had the 
 judgment been obtained in it, 
 
 (Sub-s. 4.) Where it appears to the registrar of the 
 County Court that property of the debtor exceeds in value 
 ten pounds, he shall, at the request of any creditor, and 
 without fee, issue execution against the debtor's goods, 
 but the household goods, wearing apparel, and bedding 
 of the debtor or his family, and the tools and implements 
 of his trade to the value in the aggregate of twenty 
 pounds, shall to that extent be protected from seizure. 
 
 (Sub-s. 5.) When the order is made no creditor shall 
 have any remedy against the person or property of the 
 debtor in respect of any debt which the debtor has 
 notified to a County Court, except with the leave of that 
 County Court, and on such terms as that Court may 
 impose ; and any County Court or inferior Court in which 
 proceedings are pending against the debtor in respect of 
 any such debt shall, on receiving notice of the order, 
 stay the proceedings, but may allow costs already in- 
 cmTed by the creditor, and such costs may, on applica- 
 tion, be added to the debt notified.
 
 OF BANKRUPTCY. S81 
 
 (Sub-s. 6.) If the deLtor makes default in payment 
 of any instalment payaLlo in pursnaneo of any order 
 under this section, lie shall, unless the contrary is proved, 
 be deemed to have had since the date of the order the 
 means to pay the sum in respect of which he has made 
 default and to have refused or neglected to pay the 
 same (m). 
 
 (Suh-s. 7.) The order shall be carried into effect in 
 such manner as may be prescribed by general rides (y/). 
 
 (Sub-s. (S.) Money paid into Court under the order 
 shall 1)0 appropriated first in satisfaction of the costs of 
 the plaintiff in the action, next in satisfaction of the 
 costs of administration (which shall not exceed two 
 shillings in the pound on the total amount of the debts) 
 and then in liquidation of debts in accordance with the 
 order. 
 
 (Sub-s. 9.) Notice of the order shall be sent to the 
 registrar of County Court judgments, and be posted in 
 the office of the County Court of the district in Vvhich the 
 debtor resides, and sent to every creditor notified by the 
 debtor, or who has proved. 
 
 (Sub-s. 10.) Any creditor of the debtor, on proof of his 
 debt before the registrar, shall be entitled to be scheduled 
 as a creditor of the debtor for the amount of his proof. 
 
 (Sub-s, 11.) Any creditor may in the prescribed 
 manner object to any debt scheduled, or to the maimer 
 in which payment is directed to be made by instal- 
 ments. 
 
 (Sub-s. 12.) Any person who after the date of the 
 order becomes a creditor of the debtor, shall, on proof of 
 his debt before the registrar, be scheduled as a creditor 
 of the debtor for the amount of his proof, but shall not 
 be entitled to any dividend under the order until tliose 
 creditors -who are scheduled as having been creditors 
 
 {m) See ff/i/t', p. 156. 122 of the Bankruptcy Act, 1883; 
 
 («) See General Rules as to W. N., 22ncl December, 1883 
 Administration Orders imdcrscct. (Supplement) .
 
 282 
 
 OF CHOSES IN ACTION. 
 
 before the date of the order have been paid to the 
 extent provided by the order. 
 
 (Sub-s. 13.)- ^yhen the amount received under the 
 order is sufficient to pay each creditor scheduled to the 
 extent thereby provided, and the costs of the plaintiff 
 and of the administration, the order shall be superseded, 
 and the debtor shall be discharged from his debts to the 
 scheduled creditors. 
 
 (Sub-s. 14.) In computing- the salary of a registrar 
 under the County Courts Acts every creditor scheduled, 
 not being a judgment creditor, shall count as a plaint. 
 
 Persons dyinr 
 insolvent. 
 
 Administra- 
 tion in bank- 
 ruptcy of 
 estate of 
 person dying 
 insolvent. 
 
 We have seen (o) that the Judicature Act of 1875 made 
 provision for the application of some of the rules of bank- 
 ruptcy in the administration by the Court of deceased 
 persons' estates, which should be insufficient to satisfy 
 their liabilities in full. The Bankruptcy Act, 1883, 
 by the following section empowers the Courts having 
 jurisdiction in bankruptcy {jj) to make an order for the 
 administration of such estates : — 
 
 (Sect. 125, sub-s. 1.) Any creditor of a deceased 
 debtor whose debt would have been sufficient to sup- 
 port a bankruptcy petition against such debtor, had he 
 been alive {q), may present to the Court a petition in 
 the prescribed form (r), praying for an order for the 
 administration of the estate of the deceased debtor, 
 according to the law of bankruptcy. 
 
 (Sub-s. 2.) Upon the prescribed notice (s) being given 
 to the legal personal representative of the deceased 
 debtor, the Court may, in the prescribed manner (t), 
 upon proof of the petitioner's debt, unless the Court is 
 satisfied that there is a reasonable probability that the 
 estate will be sufficient for the pajTiientof the debts owing 
 
 (o) Ante, p. 153, note (c). 
 {p) See ante, p. 211. 
 {q) See ante, p. 213. 
 
 (;■) See Eanki'uptcy 
 1883, r. 200. 
 (.v) Rule 201. 
 (/) Rules 201, 202. 
 
 Rules,
 
 Ol' ]!AMvlU I'TCY. 28'i 
 
 by tlie deceased, make an order for tlie administration 
 in bankruptcy of the deceased debtor's estate, or may 
 upon cause shown dismiss such petition A\'ith or without 
 costs. 
 
 (Sub-s. o.) An order of administration under this 
 section shall not be made until the expiration of two 
 months from the date of the grant of probate or letters 
 of administration, unless with the concui'rence of the 
 legal personal representative of the deceased debtor, or 
 unless the petitioner proves to the satisfaction of the 
 Court that the debtor committed an act of bankruptcy 
 within three months prior to his decease. 
 
 (Sub-s. 4.) A petition for administration under this 
 section shall not be presented to the Court after pro- 
 ceedings have been commenced in any Court of justice 
 for the administration of the deceased debtor's estate, 
 but that Coiu't may in such case, on the application of 
 any creditor, and on proof that the estate is insuilicient 
 to pay its debts, transfer the proceedings to the Com-t 
 exercising jiu'isdiction in bankruptcy, and thereupon 
 such last-mentioned Court may, in the prescribed 
 manner, make an order for the administration of the 
 estate of the deceased debtor, and the like consequences 
 shall ensue as under an administration order made on 
 the petition of a creditor. 
 
 (Sub-s. 5.) I'pon an order being made for the admi- 
 nistration of a deceased debtor's estate, the property of 
 the debtor shall vest in the ofhcial receiver of the Court, 
 as trustee thereof, and he shall forthwith proceed to 
 realise and distribute the same in accordance with the 
 provisions of this Act. 
 
 (Sub-s. G.) With the modifications hereinafter men- 
 tioned, all the provisions of Part III. {ti) of this Act, 
 relating to the administration of the property of a 
 bankrupt, shall, so far as the same are applicable, apply 
 
 («) Sects. 37— Go ; sec aiiir, pp. 232—242.
 
 28-1 OF (HOSES IN ACTION. 
 
 to the ease of an administration order under this section 
 in like manner as to an order o£ adjudication under this 
 Act. 
 
 (Sub-s. 7.) In the administration of the property of 
 the deceased debtor under an order of administration, 
 the official receiver shall have regard to any claim by 
 the legal personal representative of the deceased debtor 
 to payment of the proper funeral and testamentary 
 expenses incurred by him in and about the debtor's 
 estate, and such claims shall be deemed a ^u-eferential 
 debt under the order, and be payable in full, out of the 
 debtor's estate, in priority to all other debts. 
 
 (Sub-s. 8.) If, on the administration of a deceased 
 debtor's estate, any surplus remains in the hands of the 
 official receiver, after payment in full of all the debts 
 due from the debtor, together with the costs of the 
 administration and interest as provided by this Act in 
 case of bankruptcy (.r), such surplus shall be paid over 
 to the legal personal representative of the deceased 
 debtor's estate, or dealt with in such other manner as 
 may be prescribed. 
 
 (Sub-s. 9.) Notice to the legal personal representative 
 of a deceased debtor of the presentation by a creditor of 
 a petition under this section shall, in the event of an 
 order for administration being made thereon, be deemed 
 to be equivalent to notice of an act of bankruptcy, and 
 after such notice no payment or transfer of property 
 made by the legal personal representative shall operate 
 as a discharge to him as between himself and the official 
 receiver ; save as aforesaid nothing in this section shall 
 invalidate any payment made or any act or thing done 
 in good faith by the legal personal representative before 
 the date of the order for administration. 
 
 (Sub-s. 10.) Unless the context otherwise requires, 
 "Court" in this section, means the Court within the 
 
 (x) See ante, pp. 251, 252.
 
 OF HANKULTTCY. 285 
 
 jurisdiction of whicli the debtor resided or carried on 
 business for the greater part of the six months imme- 
 diately prior to his decease {y) ; " creditor " means one 
 or more creditors qualified to present a bankruptcy 
 petition, as in this Act provided (~), 
 
 (Sub-s. 1 1 .) General rules, for carrying into effect the 
 provisions of this section, may be made in the same 
 manner and to the like effect and extent as in bank- 
 ruptcy. 
 
 (//) See ante, pp. 211, 215, 21G. , (.-) See ante, p. 213.
 
 280 OF cirosKs in action. 
 
 CHAPTER VI. 
 
 OF INSOLYEXCY. 
 
 Before tlie Bankruptcy Act, 1861, a person not in 
 trade could not be made a bankrupt. He might, 
 however, have become insolvent. Insolvency, strictly 
 speaking, means a general inabilit}' to meet pecuniary 
 engagements {a). But the term was very commonly 
 and conveniently applied to the means of getting rid of 
 such engagements afforded by certain Acts of parliament 
 passed for the relief of insolvent debtors. 
 
 Stat. 1 k 2 ^liQ principal Act for the relief of insolvent debtors in 
 
 Vict. c. 110. 
 
 England was the statute 1 & 2 Yict. c. 110, the former 
 
 sections of which were, however, occupied in abolishing 
 arrest on mesne process in civil actions, and in extend- 
 ing the remedies of judgment creditors against the 
 property of their debtors. So far as the Act related to 
 insolvent debtors, it was for the most part a reprint, 
 with some important additions, of a previous statute for 
 the same pm-pose {h), by which the laws then existing 
 Discharge on the subject were amended and consolidated. The 
 from prison, ^.g^^-^f afforded to the debtor was his discharge from 
 prison ; and the Act accordingly only apphed to persons 
 in actual custody within the walls of a prison in England. 
 Any such person in custody upon any process whatso- 
 ever, for or by reason of any debt, damages, costs, sum 
 or sums of money, or in consequence of contempt of 
 any Com-t whatsoever for non-payment of money or 
 costs, taxed or imtaxed, might at any time within the 
 
 («) Biddlecomhe v. Bond, 4 Adol. {h) Stat. 7 Geo. IV. c. 57, con- 
 
 & Ell. 332. tinued and amended by stat. 11 
 
 Geo. IV. 6L- 1 Will. IV. c. 38.
 
 OF TXSOTA'KXrY. 287 
 
 space of fourteen days next after the eommencement of 
 liis actual custody, or afterwards hy permission of the 
 Court, apply by petition to the Court for the Relief of 
 Insolvent Debtors for his discharge from such custody, 
 according to the provisions of the Act (r). In the 
 country tlie petition was referred for hearing to the 
 County Com't of the district within which the insolvent 
 was in custody (d). The insolvent himself was formerly 
 the only person who could put the machinery of the Act 
 in motion ; but afterwards the creditor at whose suit the 
 lU'isoner was committed to prison or cliarged in execu- 
 tion might, if not satisfied ^\■ithin twenty-one days next 
 after such prisoner should have been so committed or 
 charged in execution, himself petition the Court for his 
 share of the relief {<'), which consisted in the real and 
 personal estate and effects of the prisoner being vested 
 in the provisional assignee of the Court for the benefit 
 of his creditors. 
 
 On the filing of the petition either of the debtor or of Vesting 
 the creditor, a vesting order, as it was termed, was made 
 by the Court. By this order all the real and personal 
 estate and effects of the prisoner, both within this realm 
 and abroad (except his wearing apparel, bedding and 
 other such necessaries of himself and his family, and 
 his working tools and implements, not exceeding in the 
 whole the value of twenty pounds), and all the future 
 estate to which he might become entitled until his final 
 discharge, were vested in the provisional assignee for 
 the time being of the estates and effects of insolvent 
 debtors in England (/'). The Court might subsequently Assignees. 
 
 (c) Stat. 1 & 2 Vict. c. 110, means of compelling the prisoner 
 
 8. 35. to file a schedule of his property ; 
 
 {d) Stat. 10 & 11 Vict. c. 102, JroUis v. liri/a>it, 12 Sim. -192, 
 
 8. 10. 501. 
 
 {e) Stat. I & 2 Vict. e. 110, (/) Stat. 1 & 2 Vict. c. 110, 
 
 s. 36. In this case, however, the s. 37 ; Ford v. Dabbs, 5 Man. & 
 
 Insolvent Court luid no adciiuatc Gr. 309.
 
 ^88 
 
 OF CHOSES IN ACTION. 
 
 Beneficed 
 clergyman. 
 
 Officer. 
 
 Voluntary 
 preference. 
 
 have appointed any proper person or persons to be 
 assignees of such estates and effects, in whom the same 
 accordingly vested on the acceptance of the appoint- 
 ment being signified by him or them to the Court ((/). 
 Tlie estate and effects of the prisoner were then sold 
 and converted into money by the assignees in the 
 manner directed by the Act {/t). And the Com-t had 
 power to order that any property of the prisoner might 
 be mortgaged, instead of being sold, if it should appear 
 to the Court that his debts could be discharged by such 
 means (/). If the insolvent were a beneficed clergyman, 
 the assignees might have obtained a sequestration of the 
 profits of the benefice for the payment of his debts {Ic) . 
 And if the insolvent were or had been an officer under 
 government, or in the service of the East India Com- 
 pany, a portion of his pay, half-pay, salary, emolu- 
 ments or pension might, with the written consent of the 
 chief officer of the department to which he belonged or 
 had belonged, be ordered to be paid to the assignees (/). 
 The produce of the insolvent's estate was then divided 
 by the assignees rateably amongst the creditors (>;/). 
 And if any prisoner should before or after his imprison- 
 ment, being in insolvent circumstances, have voluntarily 
 conveyed, charged or made over any of his estate to or 
 in trust for any creditor or creditors, every such transac- 
 tion was declared to be fraudulent and void as against 
 the assignees, if made within three months before the 
 commencement of the party's imprisonment, or with the 
 \dew or intention on his part of petitioning the Court 
 for his discharge under the Act {n) . 
 
 {(/) Stat. 1 & 2 Vict. c. 110, 
 s. 45. 
 
 (h) Sect. 47. See Wriff/d v. 
 Maunder, 4 Beav. 512. 
 
 (i) Sect. 48. 
 
 (/) Stat. 1 & 2 Vict. c. 110, 
 s. 56. See ante, p. 239. 
 
 (w) Sect. 62. 
 
 («) Sect. 59. See Harris r. 
 Lloyd, 6 Beav. 426 ; Jackson v. 
 
 {k) Sect. 55. See stat. 12 & 13 Thompson, 2 Q. B. 887; 3 Man. 
 Vict. c. 67. And see ante, p. 238. & Gr. 621. And see atifc, p. 263.
 
 OF INSOI.VENX'Y. 289 
 
 Witliin fourteen days next after the making of the The schedule, 
 vesting- order, or witliin sucTi further time as the Court 
 thought reasonable, a schedule was required to Lo de- 
 livered into the Court, signed by the prisoner, containing 
 a full descrij^tion of his name, trade or profession, place 
 of abode, debts and property of every description (o). 
 Immediately after the filing of this schedule, a time and 
 place were appointed by the Court for the prisoner to 
 be brought up to be dealt with according to the Act (p), 
 of "which due notice was given to the creditors (q) . His 
 schedule was then examined into on oath by the Court ; 
 and any creditor might oppose his discharge, and for 
 that purpose might put such c^uestions to the prisoner 
 and examine such witnesses as the Court thought fit {>•). 
 After such examination the Court was then empowered, 
 upon the prisoner swearing to the truth of his schedule, 
 and executing the warrant of attorney to be mentioned 
 afterwards, to adjudge that such prisoner should be dis- Discharge 
 charged from custody, and entitled to the benefit of the ^°"^ ^^^ ° ^* 
 Act as to the several debts and sums of money men- 
 tioned in the schedule, due, or claimed to be due, at the 
 time of making the vesting order, from the prisoner to 
 the persons named in his schedule, or for which such 
 persons should have given him credit before the time of 
 making such vesting order, and which were not then 
 payable, and as to the claims of all other persons, not 
 known to the prisoner at the time of the adjudication, 
 who might have been indorsees or holders of any nego- 
 tiable security set forth in the schedule (-s). The dis- 
 charge might have been, in the discretion of the Court, 
 either immediate, or might have been postponed for six 
 months (/) ; and in certain cases of flagrant misconduct 
 
 {<>) Stat. 1 & 2 Vict. c. 110, (;•) Sect. 72. 
 
 8. CD. (.v) Sect. 75 ; Leonard v. JJakcr, 
 
 ip) Sect. 70. 15 Mee. & Wels. 202. 
 
 (y) Sect. 71. (<) Sect. 76. 
 
 W.IM'. U
 
 290 
 
 OF f'HOSES IX ACTION'. 
 
 Effect of dis- 
 charge. 
 
 Warrant of 
 attorney exe- 
 cuted by pri- 
 soner. 
 
 Insolvency 
 under stat, 
 5 & 6 Vict. 
 c. 116. 
 
 it miglit have been postponed for any period not exceed- 
 ing three years (//). 
 
 The insolvent being- thus discharged was free from 
 any future imprisonment, and his property was also free 
 from execution at the suit of his creditors, for the debts 
 mentioned in the schedule {x) . And the costs of actions 
 and suits (//), and the claims of annuity creditors (c), 
 might have been comprised in such discharge. The 
 discharge, however, was not, like that of bankruptcy, 
 final and complete ; for before any adjudication was 
 made, the prisoner was required to execute a warrant' 
 of attorney, authorizing the entering up of a judgment 
 against him in one of the superior Oomis at Westminster 
 in the name of the assignee or assignees, for the amount 
 of the prisoner's unsatisfied debts as stated in the 
 schedule. And if at any time it should have aj^peared 
 to the satisfaction of the Court tliat the prisoner was of 
 ability to pay such debts, or an}- part thereof, or that 
 he was dead leaving assets for that pm'pose, the Court 
 might have permitted execution to be taken out upon 
 the judgment for such sum as it might have ordered, 
 such sum to be distributed rateably among the cre- 
 ditors {a). 
 
 Under certain circumstances, an insolvent might, by 
 other Acts of Parliament, have obtained as complete a 
 discharge from his debts as if he had become bank- 
 rupt (b). The Acts, however, only applied to such 
 persons as had become indebted without any fraud, 
 ' or gross or culpable negligence (c). Any person so 
 
 (m) Stat. 1 & 2 Vict. c. 110, 
 ss. 77, 78. 
 
 (.r) Sects. 90, 91. 
 
 (y) Sect. 79. 
 
 (z) Sect. 80. See Bennett v. 
 Burton, 12 Ad. & Ell. 657. 
 
 {a) Sect. 87. See also sects. 88 
 
 and 89. See Ilaivkes v. SalliiceU, 
 2 Sma. & Gilf. 498. 
 
 ib) Stats. 5 & 6 Vict. c. 116; 
 7 & 8 Vict. c. 96 ; 10 & 11 Vict. 
 c. 102. 
 
 (c) Stats. 6 & 6 Vict. c. 110, 
 s. 4 ; 7 & 8 Vict. c. 96, s. 24.
 
 OF INSOLVKXCV. 291 
 
 indebted, not being a trader witliin the banki-upt laws, 
 or being such trader, but owing debts amounting in the 
 whole to less then 300A, might, whether he should have 
 ak-eady been in prison or not ((/), have applied for the 
 protection of his person from process, on making a full 
 disclosure and surrender of all his estate and eifects for 
 the payment of his debts. The application was made 
 to the Court for the Relief of Insolvent Debtors {e). 
 But if the petitioner should not have resided for tlie 
 last sis calendar months within twenty miles of London, 
 but should have resided for that time within the district 
 of a County Court, application must then have been 
 made to such County Court (/). The whole estate 
 and eifects of the insolvent was then vested in the pro- 
 visional assignee of the Insolvent Comt, or in the clerk 
 of the County Coiu't, as the case might be, for the 
 benefit of all the creditors rateably {[/). But the wear- 
 ing apparel, &c. of the petitioner and his family, not 
 exceeding the value of 201., might have been excepted, 
 as in the other Insolvent Act, provided such excepted 
 articles, and the values thereof, were fully and truly 
 described (//). With the exception of the warrant of 
 attorney given by the prisoner under the other Insolvent 
 Act, the provisions of these Acts were generally similar 
 to those of that Act. The filing of every petition under 
 these Acts was required to be registered in the registry 
 for judgments of the County Coiu^ts (/). 
 
 The Bankruptcy Act, 1861 (/.•), made a complete The Bank- 
 change in the law with respect to the insolvency of ^^^q[^^' ' 
 
 (d) stats. 7 & 8 Vict. c. 96, s. 7 ; 10 & 11 Vict. c. 102, s. 5. 
 s. 6; 10 & 11 Vict. c. 102, a. 7. (/() Stat. 7 & 8 Vict. c. 9G, 
 
 (e) Stat. 10 & II Vict. c. 102, s. 9. 
 
 ss. 6, 8. (0 Stat. 17 .Sc 18 Vict. c. 16, 
 
 (/) Sect. G. B. 2. See ante, p. 157. 
 
 iff) Stats. 5 & 6 Viot. c. 116, (/) Stat. 24 & 25 Vict. c. 134. 
 
 v2
 
 292 
 
 OF CIIOSES IX ACTIOX. 
 
 persons not in trade. That Act repealed all the above- 
 mentioned Acts for the relief of insolvent debtors, and 
 abolished the Court for their relief {/). All persons, 
 whether traders or not, became subject to the bankrupt 
 law (m) ; but no person was to be adjudged a bankrupt, 
 except in respect of some one of the acts of bankruptcy 
 described in the Act as applicable to a non-trader (y^'). 
 As we have seen (o), under the subsequent Banla'uptcy 
 Acts, 1869 and 1883, all debtors have remained liable 
 to be adjudged bankrupt. And, under the Act of 
 1883, the acts of bankruptcy are the same for all ; 
 although this was not the case under the Act of 1869 {p). 
 But it is provided that no person, not being a trader 
 within the meaning of the Bankruptcy Act, 1861, shall 
 be adjudged bankrupt in respect of a debt contracted 
 before the passing of that Act (q). 
 
 Discliarge of 
 pi'isoners for 
 debt. 
 
 Pauper and 
 lunatic pri- 
 soners. 
 
 In the reign of Geo. III. an Act was passed for the 
 discharge of debtors in execution upon any judgment 
 for any debt or damages not exceeding 20/., exclusive 
 of costs {)•). But this Act was rendered obsolete by the 
 provisions of statutes passed in the years 1844, 1845 
 and 1846 (.s) with regard to imprisonment for debts not 
 exceeding 20/. ; and it was repealed in the year 1869 (/). 
 The Bankruptcy Act, 1861, contained provisions for 
 the discharge from prison of pauper and lunatic pri- 
 soners for debt. These provisions applied both to 
 
 (l) Stat. 24 & 25 Vict. c. 134, 
 ss. 19—27. 
 
 («) Sect. 69. Peers and mem- 
 bers of Parliament were included. 
 Duhe of Newcastle v. Morris, L. E,., 
 4 H. L. 661 ; see ante, p. 200. 
 
 («) Sect. 69. 
 
 (o) Ante, pp. 198, 199. 
 
 {i)) See ante, pp. 199—203. 
 
 (r/) Stat. 46 & 47 Vict. c. 52, 
 
 8. 126. The Act of 18G9 con- 
 tained a similar provision ; stat. 
 32 & 33 Vict. c. 71, s. 118. 
 
 (/•) Stat. 48 Geo. III. c. 123 ; 
 see Tuhon v. Bijl^es, 1 Ph. 439. 
 
 (6) Stats. 7 & 8 Vict. c. 96, 
 s. 57; 8 & 9 Vict. c. 127; 9 & 10 
 Vict. 0. 95, s. 99 ; see ante, p. 
 154. 
 
 (0 By stat. 32 & 33 Vict. c. 82,
 
 OF INSOI-VEXCY. 293 
 
 traders and non-traders {if). But this Act was re- 
 pealed (of) and imprisonment for debt abolished {>/) at 
 the end of the year 18G9, as we have seen (;:). 
 
 {u) Sects. 98 — 107 ; BramwcU c. 83. 
 V. Eglinton, Q. B., 10 Jur., N. S. (y) By stat. 32 & 33 Vict. c. 62. 
 
 583. (;) Ante, pp. 154, 183, 197, 
 
 (.(•) By Stat. 32 & 33 Vict. 204.
 
 294 
 
 OF ClIOSES IN ACTION. 
 
 CHAPTER YII. 
 
 OF INSURANCE. 
 
 Policy of 
 insurance. 
 
 Having how considered, tliougli very briefly, the suTd- 
 ject of debts generally, tliere remain certain debts, pay- 
 able on contingencies, wliich deserve a separate notice, 
 namel}', debts arising nnder contracts to insiu'e effected 
 by policies of insurance. A policy of insm-ance, or 
 assurance, is the name given to an instrument by which 
 a contract to insiu'e is entered into ; and a contract to 
 insure is a contract either to indemnify against a loss 
 which may arise on the happening of some event, or to 
 pay, on the happening of some event, a sum of money 
 to the person insured. The most usual kinds of in- 
 surance are, insurance of lives, insurance against loss by 
 fire, and insurance of ships and their cargoes against 
 the perils of the seas. 
 
 Life insur- 
 ance. 
 
 And, first, as to life insm-ance. The advantages of 
 life insurance are now so well kno^^^l, that there is no 
 occasion to dilate upon them. By payment of a small 
 annual premium during the life insured, a sum of money 
 may be seciu-ed at his decease, applicable to the payment 
 of his debts, for a provision for his family, or any other 
 purposes. But as the insurance of lives and other 
 events, in which the person insured has no interest, is 
 often nothing more than a mischievous kind of gaming, 
 it is enacted, by an Act of the 14th of George III., 
 that no insurance shall be made on the life of any 
 person, or on any other event whatsoever, wherein the 
 has no interest person for whose use and benefit, or on whose accoimt, 
 such policy shall be made, shall have no interest, or by 
 
 Insurances on 
 lives in -wliich 
 the insured
 
 OF IISSUKANCE. 295 
 
 way of gaming or wagering; and tliat every such 
 assiu'ance shall be null and void, to all intents and pur- 
 poses ■\\liatsoevor (a) ; and that it shall not be lawful 
 to make any policy^ on the life of any person, or other 
 event, without inserting in tlie policy the person's name 
 interested therein, or for whose use or benefit, or on 
 whose account, such policy is made (//) ; and that in all 
 cases where the insiu'cd hath an interest in such life or 
 event, no greater smn shall be recovered or received 
 from the insurer than the amount or value of the 
 interest of the insm'cd in such life or other event (<?). 
 But this Act does not extend to insurances bond fide 
 made on shijjs, goods or merchandises {(I), with respect 
 to which provisions have been made by another Act of 
 rarliament (^). Every person is considered to have a A person may 
 sufficient interest in the duration of his own life to sus- ^dc. 
 tain his own insm-ance of it ; but if he should afterwards 
 put an end to his life, or die by the sentence of the law, 
 the insurance will be void in the hands of his executors ; 
 and no provision to the contrary contained in the policy 
 of insui'ance will be of any avail (/). The assignee of a 
 j)erson who has insured his own life is not required by 
 the above-mentioned statute to have any interest in the 
 life of such person, for the statute makes no mention of 
 the assignment of policies {(j) . A creditor has an in- A creditor 
 surable interest in the life of his debtor to the extent of ji\^ie'\ntorc"t' 
 his debt ; but if the debt should be discharged from any iii the life of 
 other source, it was formerly held that the policy would 
 
 («) Stat. 14 Geo. III. c. 48, [r) Stat, 19 Geo. II. c. 37, 
 
 s. 1 ; ShiUbifj v. Accidental Death amended by stat. 27 & 28 Vict. 
 
 Lmirance Company, 2 H. & N. c. 5G, a. 1. 
 
 42 ; Ilchchn v. West, 3 Best & (/) Amicable Insurance Socictij 
 
 Smith, 579. v. Holland, 4 Bligh, N. S. 194, 
 
 ib) Scot. 2 ; Ilodson v. Observer reversing Holland v. Disnci/, 3 
 
 life Assurance Socicti/, 8 E. & B. Iluss. 351 ; see Clift v. Schwabe, 
 
 40. 3 C. B. 437. 
 
 (c) Sect. 3. {(l) Ashley v. Ashley, 3 Sim. 
 
 (rf) Sect. 4. 149.
 
 296 
 
 OF (HOSES IN ACTION. 
 
 Trustee. 
 
 Father and 
 son. 
 
 tlienceforth. be void for want of interest (//). This strict 
 law was not liowever usually taken advantage of by 
 the assurance offices, who generally paid the sums in- 
 sui'ed without any inquiry as to the extent of the 
 interest of the i^arty insured in the life on which the 
 insurance had been effected (/). And by recent de- 
 cisions (/.•), the doctrine that a contract for life assurance 
 is a contract for indemnity only has been overruled ; so 
 that if the person insuring has an insui'able interest 
 at the time of effecting the policy, the subsequent loss 
 of such interest will not render the policy void. An 
 interest as trustee is sufficient to support a life insur- 
 ance (/). But a father has not such an interest in the 
 life of his son as to warrant an insui'ance of it for his 
 own benefit {ui). By the Stamp Act, 1870 (ii), policies 
 of life insurance are subject to stamp duties according 
 to the table in the note (o). 
 
 {k) Godsall v.5o/<7cro, 9East, 72; 
 S. C, 2Sinith'sLeadingCases,17'5. 
 
 (i) Lloyd tfc G-oold, Cas. temp. 
 Sugden, 291. 
 
 (Jc) Dalbij V. India ^- London 
 Life Assurance Company, 15 C. B. 
 365 ; S. C, 18 Jur. 1024 ; Laiv 
 V. London Indisjmtahle Life Policy 
 
 Company, 1 Kay & John. 223. 
 
 [l) Tidsivell Y.Angerstein, Peake, 
 N. P. Cases, 151; Collett v. Mor- 
 rison, 9 Hare, 162, 176. 
 
 (««) Ilalford V. Eymer, 10 Barn. 
 & Cress. 724 ; Worthington v. 
 Curtis, C. A., 1 Ch. D. 419. 
 
 («) Stat. 33 & 34 Vict. c. 97. 
 
 Where the sum insured does not exceed £10 ,. ..0 1 
 
 Exceeds £10, but does not exceed £25 .. .. ..0 3 
 
 Exceeds £25, but does not exceed £500 — 
 
 Eor every full sum of £50, and also for any fractional 
 
 part of £50, of the amount insured . . . . ..06 
 
 Exceeds £500, but does not exceed £1,000 — 
 
 For every full sum of £100, and also for any fractional 
 
 part of £100, of the amount insured . . . . ..10 
 
 Exceeds £1,000— 
 
 For every full sum of £1,000, and also for any fractional 
 
 part of £1,000, of the amount insured . . . . 10 
 
 For any payment agreed to be made upon the death of 
 any person, only from accident or violence or other- 
 wise than from a natural cause, or as compensation for 
 personal injury, or by way of indemnity against loss or 
 damage of or to any property . . . . . . ..01
 
 OF INSl'KAXCE. 297 
 
 In the year 18G7 an Act Avas passed to enable assig- Assignees of 
 nees of policies of life assurance to sue tliereon in their n\av^«ue'^ir 
 own names (p). It provides that any person or corpo- their own 
 ration entitled, hy assignment or other derivative title, to 
 a policy of life assurance, and possessing at the time of 
 action brought the right in equity to receive and the 
 right to give an effectual discharge to the assurance 
 company liable under such policy for monies thereby 
 assm-ed or secured, shall be at liberty to sue at law in 
 the name of such person or corporation to recover such 
 monies (q) . In any action on a policy of life assurance. Defence or 
 a defence on equitable grounds, or a reply to such e^ui^.i^io 
 defence on similar grounds, may be respectively pleaded grouuds may 
 and relied upon in the same manner and to the same ^^ ^^ ^ - 
 extent as in any other personal action (r) . No assign- Notice of as- 
 ment made after the passing of the Act of a policy of life bf^^^^^* **^ 
 assurance shall confer on the assignee therein named, 
 his executors, administrators or assigns, any right to 
 sue for the amount of such policy, or the monies 
 assured or secured thereby, until a written notice of the 
 date and purport of such assignment shall have been 
 given to the assurance company liable under such 
 policy at their principal place of business for the time 
 being ; and the date on which such notice shall be re- 
 ceived shall regulate the priority of all claims under 
 any assignment ; and a payment hond fide made in 
 respect of any policy by any assurance company before 
 the date on which such notice shall have been received, 
 shall be as valid against the assignee giving such notice 
 as if the Act had not been passed (.s) . Every assurance Principal 
 company is required on every policy issued by them busiuers^to 
 after the 30th of September, 18G7, to specify their i^e specified on 
 principal place or places of business at which notices ^° ^^^^^' 
 of assignment may be given in pursuance of the Act (/) . 
 
 [p) Stat. 30 & 31 Vict. c. 144. (.s) Sect. 3. 
 
 . [q) Sect. 1. \t) Sect. 4. 
 
 {)■) Sect. 2.
 
 208 
 
 OF CHOSES IX ACTION. 
 
 Notices of as- 
 signment to 
 be acknow- 
 Icdsred. 
 
 And every assurance company to wliom notioe sliall 
 Lave been duly given of the assignment of any policy 
 under whicli they are liable, shall upon the request in 
 writing of any person by whom any such notice was 
 given or signed, or of his executors or administrators, 
 and upon payment in each case of a fee not exceeding 
 five shillings, deliver an acknowledgment in writing 
 under the hand of their principal officer of their receipt 
 of such notice ; and every such written acknowledgment, 
 if signed by a person being dc jure or do facto the prin- 
 cipal officer of the company whose acknowledgment the 
 same purports to be, shall be conclusive evidence as 
 against the company of their ha^■ing duly received the 
 notice to Avhich such acknowledgment relates {u). And 
 now, as we have seen (r), every absolute assignment by 
 writing, under the hand of the assignor of any legal 
 chose in action, of which express notice in writing shall 
 have been given to the debtor, transfers the legal right 
 thereto, subject to all prior equities. 
 
 Life insiu'- 
 ance by mar- 
 ried woman. 
 
 Insurance by 
 married man 
 for wife and 
 children. 
 
 The Married Women's Property Act, 1870 (.r), pro- 
 vided that a manied woman might effect a policy of 
 insurance upon her own life or the life of her husband 
 for her separate use ; and that the same and all benefit 
 thereof, if expressed on the face of it to be so effected, 
 should enure accordingly, and the contract in such 
 policy should be as valid as if made with an unmarried 
 woman. The same Act provided that a policy of 
 insurance effected by any married man on his own 
 life, and expressed upon the face of it to be for the 
 benefit of his wife or of his wife and children, or any 
 of them, should enure and be deemed a trust for the 
 benefit of his wife for her separate use and of his 
 
 («) Stat. 30 & 31 Vict. c. 114, 
 e. 6. 
 
 ((•) Stat. 3G & 37 Vict. c. 66, s. 
 25, sub-sect. (6) ; ante, pji. 6, 172. 
 
 [x) Stat. S3 & 34 Vict. c. 93, 
 6. 10. See Williams's Convey- 
 ancing Statutes, pp. 381, 393, 
 396.
 
 Ol' i.NSl KA-NCK. 29t) 
 
 children or any of them according to the interest so 
 expressed, and should not, so long as any object of the 
 trust remained, be subject to the control of the husband 
 or to his creditors, or form ])art of his estate (//). This 
 Act was repealed by the Married Women's Property 
 Act, 1882 (z), which empo^iyers a married woman to 
 enter into and render herself liable in respect of and to 
 the extent of her separate estate on any contract (-'/) , 
 and contains the following pro^■ision with respect to life 
 insurance by wives or husbands : — 
 
 (Sect. 11.) A married woman may by vii-tue of the Moneys pay- 
 power of making contracts hereinbefore contained effect j?,""^ 
 a policy upon her own life, or the life of her husband assurauce not 
 for her sejiarate use ; and the same and all benefit „{ estate of 
 thereof shall enure accordingly. t^c insured. 
 
 A policy of assm'ance effected by any man on his 
 own life, and expressed to be for the benefit of his Avife, 
 or of his chikben, or of his wife and children, or any of 
 them, or by any woman on her own life, and expressed 
 to be for the benefit of her husband, or of her children, 
 or of her husband and childi-en, or any of them, shall 
 create a trust in favom' of the objects therein named, 
 and the moneys payable under any such policy shall 
 not, so long as any object of the trust remains un- 
 performed, form part of the estate of the insm-ed, or 
 be subject to his or her debts : Provided, that if it 
 shall be proved that the policy was effected and the 
 premiums paid with intent to defraud the creditors of 
 the insured, they shall be entitled to receive, out of the 
 moneys payable under the policy, a sum equal to the 
 
 ()/) Stat. 33 & 34 Vict. c. 93, s. 22 ; see Williams's Convey- 
 
 e. 10; see Holt V. Uvemll, C. A., ancing Statutes, p. 449; He 
 
 2 Ch. D. 266 ; In re Mellor's Soutar's Tolici/ Trust, 26 Ch. D. 
 
 Folic;/ Trusts, V.-C. M., 7 Ch. 236. 
 
 D. 200 ; lie Adams' Folic;/ Trusts, {a) Sect. 1, sub-s. 2 ; see "\Vil- 
 
 23 Ch. D. 5'2o. liams's Conveyancing- Statutes, 
 
 (z) Stat. 45 & 46 Vict. c. 75, pp. 392—399.
 
 300 OF niOSKS IN ACTIOX, 
 
 premiums so paid (6). The insured may by tlie policy, 
 or by any memorandum imder bis or her band, appoint 
 a trustee or trustees of tbe moneys payable under the 
 policy, and from time to time appoint a new trustee or 
 new trustees thereof, and may make provision for tbe 
 appointment of a new trustee or new trustees thereof, and 
 for the investment of tbe moneys payable under any 
 such policy. In defaidt of any such appointment of a 
 trustee, such policy, immediately on its being effected, 
 shall vest in the insiu'ed and his or her legal personal 
 representatives, in trust for tbe purposes aforeasaid. If, 
 at the time of the death of the insured, or at any time 
 afterwards, there shall be no trustee, or it shall be 
 expedient to appoint a new trustee or new trustees, a 
 trustee or trustees or a new trustee or new trustees may 
 be appointed by any Court having jurisdiction under 
 the provisions of the Trustee Act, 1850 (c), or the Acts 
 amending and extending the same. The receipt of a 
 trustee or trustees duly appointed, or, in default of any 
 such appointment, or in default of notice to the insm-- 
 ance office, the receipt of the legal personal representa- 
 tive of the insured shall be a discharge to the office for 
 the sum secured by the policy, or for the value thereof, 
 in whole or in part (r/). 
 
 Fire insur- Insurance against fii'e is a contract to indemnify 
 
 ^^*'^' against loss by fire, and is usually renewed from year 
 
 {b) The Act of 1870 contained c. 93, s. 10, a trustee of a policy 
 
 a similar provision -with respect effected by a husband under that 
 
 to an insurance effected by a Act for the benefit of his wife or 
 
 husband under that Act for the children, might be appointed by 
 
 benefit of his wife or cliildren ; the Chancery Division of the 
 
 stat. 33 & 34 Vict. c. 93, s. 10. High Court or a County Court. 
 
 (c) 13 & 14 Vict. c. 60. See As to the appointment of a trus- 
 Williams's Conveyancing Sta- tee of such a policy at the pre- 
 tutes, p. 178. sent time, see He Soutar''s Folici/ 
 
 [d) By stat. 33 & 34 Vict. Trust, 26 Ch. D. 236.
 
 OF IXSIRANCE. 301 
 
 to year on payment of a premium. The person wlio 
 effects sueli an insurance must liave an interest in tlio 
 property insured, and lie cannot recover beyond the 
 extent of his interest ; neither can he assign his policy 
 without the consent of the insurers {e) . When a house 
 or other building is insured, by a provision of the old 
 Metropolitan Building Act, any person interested may 
 prociu'e the insurance money, in case of fire, to be laid 
 out in repairs or rebuilding (_/'). It has been decided 
 that the operation of this provision is general, and is 
 not confined to houses or buildings Avithin the limits of 
 the metropolis (//). The insurers are the proper parties 
 to rebuild under this enactment. But a distinct request 
 must be addressed to the insurers by a person interested 
 in the house or building damaged, that the insurance 
 money may be applied in reinstating the premises. 
 If no such request be made, the insurers may pay the 
 money to the person who effected the insurance (//). 
 In consequence of this enactment, a covenant to insure 
 a house or other building is tantamount to a covenant 
 to repair to the extent of such insurance, and, if entered 
 into by a lessee in his lease, will i-uii with the land, so as 
 to be binding on the assignee of the lease (/). But, 
 upon the sale of a house or other building insured by a 
 vendor, who was under no obligation to insure, the 
 
 (e) LdhcK v. BahcU, 4 Bro. 13 "W. R. GO. 
 Pari. Cas. 431 ; Saddlers' Com- (A) Simpson v. Scottish Union 
 
 pamj V. BadcocJc, 2 Atk. 554 ; Insurance Co., 1 H. & M. 618 ; 
 
 Darrell v. Tibhitts, 5 Q. B. D. see also ColUngridge v. Royal Ex- 
 
 560; Castellain v. Trcston, 11 Q. change Corporation, 3 Q. B. D. 
 
 B. D. 380. 173; Cotton, L. J., 18 Ch. D. 7 ; 
 
 (/) Stat. 14 Geo. III. c. 78, Bowen, L. J., 11 Q. B. D. 401. 
 s. 83 ; see AVilliams'a Convey- (*) Venion v. Smith, 5 Bam. & 
 
 ancing Statutes, pp. 155 — 157. Aid. 1; see Principles of tlie Law 
 
 This section is not repealed by of Real Property, p. 398, 13th ed.; 
 
 Stat. 18 & 19 Vict. c. 122, s. 109. 411—413, 14th cd. ; "Williams's 
 
 {g) Ex parte Goreky, 4 De C, Conveyancing' Statutes, pp. 104 — 
 
 J. &S. 477; 10 Jur., N. S. 1085; 109, 499, n. (J),
 
 '30'2 OK (HOSES IN ACTION'. 
 
 benefit of the contract of insurance does not pass to the 
 purchaser, unless expressly assigned (/.•) . 
 
 Insurance of The insurance of ships and their cargoes from the 
 perils of the sea is a matter belonging rather to mer- 
 cantile law than to the department of conveyancing. 
 In this kind of insurance, as well as in the others, an 
 interest in the property insured must generally belong 
 to the party effecting the insurance, if the ship be a 
 British vessel, or the goods be laden on board any such 
 vessel (/). Like a fire insurance policy^ a policy of 
 marine insurance is a contract of indemnity {))i). A 
 statute of the year 1868 provides that whenever a policy 
 of insurance on any ship, or on any goods in any ship, 
 or on any freight, has been assigned so as to pass the 
 beneficial interest in such policy to any person entitled 
 Assignee may to the property thereby insured, the assignee of such 
 owVname policy shall be entitled to sue thereon in his own name ; 
 and the defendant in any action shall be entitled to make 
 any defence which he would have been entitled to make 
 if the said action had been brought in the name of the 
 person by whom or for whose account the policy sued 
 upon was effected (^/). And since the commencement (o) 
 
 {k) Elclon, C, Paine Y. MeUer, 33 & Si Vict. c. 97, ss. 117, 118, 
 
 6 Ves. 349, 352, 353; Foole v. 119; and 39 Vict. c. 6. 
 
 Adams, Kindersley, V.-C, 12 ()») Poides v. limes, 11 M. & 
 
 W. R. 683; Rayner v. Frcsto)/, W. 10 ; Blackburn, L. A., Bur- 
 
 Jessel, M. R., 14 Ch. D. 297 ; 7iaiid y. liodocanachi, 7 App. Cas. 
 
 affirmed, 18 Ch. D. 1, by Cotton 333, 339 ; Brett, Cotton, Bowen, 
 
 and Brett, L. JJ., diss. James, L.JJ., Castcllain \. Treston, 11 
 
 L. J. As to the benefit of a Q. B. D. 380, 386, 393, 394, 397 
 
 contract of insurance upon a — 399. 
 
 mortgage of the property in- («) Stat. 31 & 32 Vict. c. 86, 
 
 siu-ed, see Williams' sConveyanc- s. 1 ; Lloyd v. Fleming, L. R., 7 
 
 ing Statutes, pp. 156—159. Q. B. 299 ; Fellas v. Neptune Ma- 
 
 [1) Stat. 19 Geo. II. c. 37, s. 1. rine Insurance Co., 5 C. P. D. 
 
 The stamps on sea insurance are 34. 
 
 now regulated by stat. 30 Vict. (o) 1st Nov. 1875 ; see stat. 37 
 
 c. 23, s. 3 et seq. And see stats. & 38 Vict. c. 83.
 
 OF IXST-RAX(,'E. 803 
 
 of the Judicature Act of 1873 {p), all legal choses In 
 action have been directl}* assignable, as we have seen (q). 
 The benefit of a policy of marine insurance does not 
 pass upon the sale of the goods insured, unless expressly 
 or impliedly assigned (r). But goods, which are at sea, 
 or which are to be delivered by sea, are very frec^ucntly 
 sold under a contract that the price shall include freight 
 and insurance, and be payable on receipt of the shipping 
 documents. In such cases, it is imderstood that the 
 shipping documents shall comprise a proper policy of 
 insurance effected by the shipjior, and that the benefit 
 of such a policy is included in the sale (.v). Full infor- 
 mation on the subject of marine insurance will be found 
 in Park on Insm-ance, Arnould on Marine Insurance, 
 Abbott ou Shipping, and in the chapter on maritime 
 insurance in the late J. W. Smith's admirable Compen- 
 dium of Mercantile Law. Connected with maritime 
 insurance are hoUomry and rcqmidetdia. Bottomry is Pottomiy. 
 an agreement by which a vessel is hypothecated or Respondentia, 
 pledged by the owner for the payment, in the event of 
 her voyage tenuinating 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 (/). Kespondentia is a somewhat similar 
 contract with respect to the cargo, except that the bor- 
 rower only is responsible in the event of the safe termina- 
 tion of the voyage, the lender having no lien on the 
 goods {u). 
 
 [p) Stat. 36 & 37 Vict. c. CG, J., Lloyd v. Fleming, L. E., 7 
 
 s. 25, 8\ib-s. G. Q. B. 299, 303 ; Cockburn, C. J., 
 
 {q) Ante, pp. 6, 172. North of England Oil-Cake Co. v. 
 
 {r) Toivles v. Inncs, 11 M. & Archangel Maritime Insurance Co., 
 
 W. 10 ; North of England Pure L. K., 10 Q. B. 249, 254. 
 
 Oil-Cake Co. v. Archangel Mari- (t) Simonds v. Hodgson, 3 B. & 
 
 time Insurance Co., L. R., 10 Adol. 50. See The Sophia Cook, 
 
 Q. B. 249 ; Brett, L. J., liagncr 4 P. D. 30. 
 
 V. Frcslon, 18 Ch. D. 1, 12. («) 2 Black. Com. 457 ; Busk v. 
 
 (.s) Tamvaco v. Lucas, 1 B. & S. J-'earon, 4 East, 319. 
 186 ; 3 B. & S. 89 ; Blackbiini,
 
 304 
 
 OI< CHOSKS IN AC'TIOX. 
 
 CHAPTER YIII. 
 
 Agreements 
 to refer to 
 arbitration. 
 
 OF ARBITRATION. 
 
 Instead of the ultimate remedy of an action in the 
 High Court of Justice, recourse is soinetimes had for 
 the settlement of disputes to the more amicable ex- 
 pedient of arbitration. And in some transactions, 
 especially in articles of co-partnership between traders, 
 it is usual to stipulate that, if any dispute shall arise, 
 it shall be referred to the determination of two in- 
 different persons as arbitrators, or of their umpire, who 
 is usually and very properly required to be chosen by 
 the arbitrators before they proceed to take the subject 
 in question into consideration (rf). And it is agreed 
 that the award in writing of the arbitrators, or of their 
 umpire in case of their disagreement, shall be binding 
 and conclusive on all parties. 
 
 Jurisdiction 
 of the court 
 over matters 
 agreed to be 
 referred to 
 arbitration. 
 
 As the High Court of Justice has full jurisdiction 
 on all questions arising out of agreements of any kind, 
 it follows that it retains a jurisdiction over matters 
 ■which the parties themselves have agreed should be 
 referred to arbitration (Z/) . Notwithstanding, therefore, 
 an agreement to refer disputes to arbitration, either 
 party may bring the matter into Court (r). But the 
 
 (a) See Sides v. Cooke, 9 Barn. 
 & Cress. 407, 408. 
 
 (b) Wdlington v. Macliintosh, 
 2 Atk. 569. See Caledonian Mail- 
 way Company v. Greenock and 
 Wemyss Bay Railway Company, 
 L. R., 2 Sc. Ap. 347. 
 
 (c) Waters v. Taylor, 15 Ves. 
 10, 18 ; MexboroKijh v. Bower, 7 
 
 Beav. 127, 132 ; Horton v. Sayers, 
 4 II. & N. 643 ; Coolcc v. Coohe, 
 V.-C. W., Law Hep., 4 Eq. 77 ; 
 15 W. R. 981 ; Dawson v. Fitz- 
 gerald, 1 Ex. D. 257 ; see also 
 North London Railway Company y. 
 Great Northern Railway Company, 
 11 Q. B. D. 30.
 
 OF ARKITRATION. 305 
 
 Common I^aw Procedure Act, IS-ji, provides, that, 
 whenever the parties to any deed or instrument in 
 "WTiting to Le thereafter executed shall agree to refer 
 their differences to arbitration, and one of such parties 
 shall nevertheless commence an action at law or suit in 
 equity against the others in respect of the matters so 
 agreed to be referred, the Court may stay the proceed- 
 ings on such terms as it may think fit, on being satisfied 
 that no sufficient reason exists wh}^ such matters cannot 
 be or ought not to be referred to arbitration, and that 
 the defendant was at the time of the bringing of such 
 action or suit, and still is ready and willing to concur 
 in all acts necessary for causing such matters to be 
 decided by arbitration (d). And a contract may be so 
 worded as to amount to merely an agreement to pay 
 so much as an arbitrator may award, in which case 
 there can be no right to sue until the award has been 
 made (r) . 
 
 The reference of disputes to arbitration appears to Reference by- 
 have been early adopted by the Courts of law, with the 
 consent of the parties to an action, in cases where the 
 matter in dispute could be more conveniently settled in 
 this mode. A verdict was taken for the plaintiff by 
 consent, subject to the award of an arbitrator agreed 
 upon by the parties, and the reference was made a rule 
 of Comi. This plan is still continually adopted. The 
 
 {(f) Stat. 17 & 18 Vict. c. 12.), 699 ; Eaiidell v. Thompson, 1 Q. 
 
 B. II; Uirschv.Im Thuni, i C.Ti., B. D. 748; Piercij v. Yoioij, 14 
 
 N. S. 569. See Mason v. Iladdau, Ch. D. 200. 
 
 6 C. B., N. S. 526 ; Whcatley v. (<■) Scott v. Avery, 5 House of 
 
 Westminster Br ijmho Coal and CoJce Lords' Cases, 811 ; Scott v. Corpo- 
 
 Companij, Limited, 2 Drew. & ration of Ziverpool, 3 De Gex & 
 
 Sma. 347 ; Coo/i v. Catohpolr, Jones, 334 ; Elliott v. Royal Ex- 
 
 V.-C. W., 10 Jur., N. S. 1068; change Assurance Company, Law 
 
 Wilhsford V. Watson, V. - C. Kep., 2 Ex. 237. See also Crt/c- 
 
 Wickens, Law Rep., 14 Eq. 572 ; donian Itailway Company v. Green- 
 
 affirmed, L. R., 8 Ch. 473 ; Gil- ock and Wcmyss Bay Railway Com- 
 
 h'tt V. Tlwrntmi, L. R., 19 V.^i- }>nny, L. R., 2 So. Ap. 317. 
 AV.P.P. X
 
 30G 
 
 or rnosKs ix aottox. 
 
 arbitrators and tlio parties to tlio reference by tbis 
 means become subject to the jurisdiction of the Court, 
 which has j)0wer to set aside any a^svard which may 
 appear to have been given unjustly or through mistake 
 of the law ; or if the award be valid, its performance 
 may be enforced under the penalty of imprisonment 
 for contempt of Court. And by the Common Law 
 Procedure Act, 1854, the Court has power, upon the 
 application of either party, to order any matter in 
 dispute, which consists wholly or in part of matters 
 of mere account, to bo referred to arbitration, upon 
 such terms as to costs and otherwise as the Court may 
 think reasonable (/). 
 
 The Supreme Court of Judicature Act, 1873 (ry), 
 now provides {//) for the appointment of permanent 
 
 Official officers called official referees ; and enacts that in any 
 
 cause or matter (other than a criminal proceeding by 
 the crown) before the High Court in which all par- 
 ties interested "v^'ho are under no disability consent 
 thereto, and also without such consent, in any such 
 cause or matter requiring any prolonged examination 
 of documents or accounts, or any scientific or local 
 investigation which cannot, in the opinion of the Court 
 or a judge, conveniently be made before a jmy, or 
 conducted by "the Court through its other ordinary 
 officers, the Court or a jiidge may at any time, on such 
 terms as may be thought proper, order any c|uestion 
 or issue of fact, or any cpiestion of account arising 
 therein, to be tried either before an official referee, or 
 
 Special before a special referee to be agreed on between the 
 
 rsiGrcG. 
 
 parties ; and any such special referee so agreed on shall 
 have the same powers and duties, and proceed in the 
 same manner, as an official referee (/) . By the Eules 
 
 (/) Stat. 17 & 18 Vict. c. 125, . {h) Sect. 83. 
 ss. 3, G, 7. (i) Sect. 57. 
 
 {</) Stat. 3G & .37 Vict. c. GO.
 
 OF AllliirHATIOX. 307 
 
 of the Supremo Court, 1883 (/), in any case in wliich 
 the rules provide that tlie 2node of trial of any cause or 
 matter shall be by a judge without a jury (/), the Court 
 or a judge may at any time order any cause, matter, or 
 issue to be tried by an official referee or special referee, 
 or with or without assessors. The conduct of these 
 trials is now regulated by the same Rules of Court {m). 
 The report of any referee u])on any question of fact on 
 any such trial is, unless set aside by the Court, equivalent 
 to the verdict of a jury (ii). And witli respect to all 
 such proceedings before referees and their reports, the 
 Court, or such judge as aforesaid, has, in addition to 
 any other powers, the same or the like powers as are 
 given to any Court whose jurisdiction has been trans- 
 ferred to the High Coiu't of Justice, with respect to 
 references to arbitration and proceedings before arbi- 
 trators and their awards respectively, by the Common 
 Law Procedure Act, 1854 (o). 
 
 In order to extend the benefits of this mode of sub- 
 mission to arbitration to all cases of controversies between 
 merchants and traders or others concerning matters of 
 account or trade or other matters, an Act of rarliamcnt 
 was passed in the reign of William the Third, intituled 
 *' An Act for determining Differences by Arbitra- Act for deter - 
 tion"(7>). Tliis Act empowers all merchants and traders ["iJ^ees'by 
 and others desiring to end by arbitration any con- arbitration, 
 troversy, for which there is no other remedy but by 
 personal action or suit in equity, to agree that their 
 submission of their suit to the award or umpirage of 
 any person or persons shall be made a rule of any of 
 her Majesty's Courts of Record which the parties shall 
 
 (/■) Order XXXVI. r. 7. («) Stat. 36 k 37 Vict. c. 6G, 
 
 (0 H'id. rules 2—7. s. 58. 
 
 (w) Ihi(f.T\\lcs7, 45 — 55; Order [o] Sect. 59, 
 
 XL. rules 2, G; Appendix K., (p) Stut. & 10 Will. HI. 
 
 No. 33. o. 1.'). 
 
 X 2
 
 308 OF CHOSES IX ACTIOX. 
 
 choose. And it provides, that, in case of disobedience 
 to the arbitration or umpirage to be made pursuant 
 to such submission, the party neglecting or refusing to 
 perform and execute the same, or any part thereof, shall 
 be subject to all the penalties of contemning a rule of 
 Court when he is a suitor or defendant in such Court. 
 And the process to bo issued accordingly shall not be 
 stopped or delayed in its execution by any order, rule, 
 command or process of any other Court, either of law or 
 equity, unless it shall be made to appear on oath to such 
 Court that the arbitrators or umpire misbehave them- 
 selves, and that such award, arbitration or imipirage was 
 procui'ed by corruption or other undue means ((^). It 
 is also further provided (r), that any arbitration or um- 
 pirage procured by corruption or undue means shall be 
 judged void, and be set aside by any Court of law or 
 equity, so as complaint of such corruption or undue 
 practice be made in the Court where the rule is made for 
 submission to such arbitration or umpirage before the 
 last day of the next term after such arbitration or um- 
 pirage is made and published to the parties. 
 
 Terras now The division of the legal year into terms is now 
 
 abolished so far as relates to the administration of jus- 
 tice ; but in all other cases in which, under the old law 
 the terms into which the legal year is divided are used 
 as a means for determining the time at or within which 
 any act is required to be done, the same may be con- 
 tinued to be referred to for the same or the like purpose, 
 unless and until provision is otherwise made by any 
 
 Sittings of the lawful authority (s) . The sittings of the Cornet of 
 Appeal, and the sittings in London and Middlesex of 
 the High Court of Justice, are four in every year, 
 
 (fi) Mosdcij V. Simpson, L. E., 92 ; Smith v. Farkside Mming 
 
 16 Eq. 226. Compamj, 6 Q. B. D. 67. 
 
 (/•) Sect. 2 ; Jacomh v. Corpora- {s) Stat. 30 & 37 Vict. c. 66, 
 
 tion of HiiddcrsJieU, L. R., 10 Ch. s. 20.
 
 OF AUHITKATIOX. 309 
 
 viz. tlio MicTiaelmas Sittings, the Hilary Sittings, tlio 
 Easter Sittings, and tlie Trinity Sittings (f). But for 
 the purposes of the above proceedings the last day of 
 term must still be referred to {/i). The Court of Chan- 
 cery was a Court of record witliin tlio meaning of the 
 Act of William the Third (./■) ; but, as wo have seen (//), 
 this Court and the Courts of Common Law at West- 
 minster are now all merged in one High Com-t of 
 Justice. It was provided by the Common Law Pro- Submissiou to 
 cedure Act, 1854, that every agreement or submission may be made 
 to arbitration by consent (c), whether by deed or in- a rule of 
 strument in writing not under seal, might be made a 
 rule of any one of the superior Courts of law or equity 
 at Westminster, on the application of any party thereto, 
 unless such agreement or submission contained words 
 purporting that the parties intended that it should not 
 be made a rule of Court (a) ; but where it was provided 
 that it sliould be made a rule of one of such Com-ts in 
 particular, it might be made a rule of that Comi 
 only {h) . A parol submission cannot be made a rule of 
 Court, oven though made in pursuance of an agreement 
 to refer contained in a deed {<■). 
 
 A general agreement to refer matters in dispute to Revocation of 
 arbitration cannot be revoked {d). But if matters in ^" ^^sion. 
 
 (<) Stat. 38 & 39 Vict. c. 77, 20 Eq. 39 ; Modes v. The Aire 
 
 8. 17 ; Rules of the Supreme dale Drainage Commissioners, 1 
 
 Court, 1883, Order LXIII. r. 1. C. P. D. 402. 
 
 {u) In the matter of an Arhi- {a) TFadsworth v. Smith, Law 
 
 tration between the Governor of Rep., 6 Q. B. 332. 
 
 Christ's Hospital, BrecJcnoeJ:, and (i) Stat. 17 & 18 Vict. c. 125, 
 
 William Edward Martin, C. A., s. 17 ; Be Newton and llether- 
 
 from Q. B. D., 25 W. R. 637 ; ington, 19 C. B., N. S. 342; Farkes 
 
 46 L. J., Q. B. 591. v. Smith, 15 Q. B. 297. 
 
 (.)•) lleming v. Swinnerton, 2 (c) Ex parte Glagsher, 3 Hurl. 
 
 Phil. 79. & Colt. 442. 
 
 [g) Ante, pp. 99, 146, 147. [d) Eiereg v. Young, 14 Ch. D. 
 
 {z) See Be Harper and Great 200, 203. 
 Eastern Rail wag Compang, L. R.,
 
 310 OF CIIOSES IN ACTION. 
 
 dispute bo submitted to a partic-ular arbitrator, either 
 party may revoke his submission, and thus determine 
 the authority of the arbitrator, if the submission be not 
 made in any action, and do not contain an agreement 
 that it shall be inade a rule of Court {e) : even though 
 it may have been made a rule of Court under the 
 Common Law Procedure Act, 18-54 (_/). A submission 
 to arbitration made in any criminal proceedings may, 
 therefore, be revoked, if it contain no agreement that it 
 shall be made a rule of Com-t (g). But it is enacted by 
 a statute of Will. IV. {//), that the power and authority 
 of any arbitrator or umpire, appointed by or in pm-su- 
 ance of any rule of Court or judge's order or order of 
 nisi prius in any action, or by or in pursuance of any 
 submission to reference containing an agreement that 
 such submission shall be made a rule of any of her 
 majesty's Com-ts of Record, shall not be revocable by 
 any party to such reference without the leave of the 
 Court by which such rule or order shall be made, or 
 which shall be mentioned in such submission, or by 
 leave of a judge (/). And the arbitrator or umpire is 
 empoAvered and required to proceed with the reference 
 notwithstanding any such revocation, and to make such 
 award although the person making such revocation shall 
 Witnesses. not afterwards attend the reference. The Coin^t, or any 
 judge, is also empowered under any such reference, by 
 rule or order, to command the attendance and examina- 
 tion of witnesses, or the production of any document {k). 
 
 (c) JnUs V. nai/h-i/, 2 H. & C. (//) 2 Wms. Saimd. 133c, n.(r?); 
 
 3G ; Thomson v. Anderson, V.-C. R. v. Bardell, 5 A. & E. 619 ; 1 
 
 M., L. E., 9 Eq. 523 ; In re House, Nev. & P. 74. 
 L. R, 6 C. P. 212; Fuoidall v. (Ii) Stat. 3 & 1 Will. lY. c. 42, 
 
 Thompson, 1 Q. B. D. 748; Frascr s. 39. 
 V. Mrensjjert/er, 12 Q. B. D. 310. (J) See Scott v. T'nn Sandau, 1 
 
 (/) Stat. 17 & 18 Vict. c. 125, Q. B. 102. 
 s. 17-; see Re Rouse, L. E., 6 C. (/) Stat. 3 & 4 Will. IV. c. 42, 
 
 P. 212 ; Frascr v. Ehrenspergcr, s. 40. 
 12 Q. B. D. 310, 312.
 
 Ol' AHIIIIHAI'IO.V. 311 
 
 And by the Act to amend the law of evidence it is 
 
 provided, tliat every arbitrator or other person, having 
 
 by law or by consent of parties authority to hoar, 
 
 receive and examine evidence, may administer an oath 
 
 to all such witnesses as are leg-ally called before them 
 
 respectively (/). The Rules of the Supreme Court, Evklouco 
 
 1883, now provide that, subject to any order to be made ^'^f^^'c 
 1 1 /-I • T 1 • 1 • referees, 
 
 by the Com-t or judge ordenng the same, evidence shall 
 
 be taken at any trial before a referee, and the attend- 
 ance of witnesses may be enforced by suhpcena, and 
 every such trial shall be conducted in the same manner, 
 as nearly as circumstances will admit, as trials before a 
 judge {m) ; that, subject to any such order as last afore- Authorityand 
 said, the referee shall have the same authority with \1^qI^ ° ^^' 
 respect to discovery and the production of documents, 
 and in the conduct of any reference or trial, and the 
 same power to direct that judgment be entered for any 
 or either party, as a judge of the High Court {n) ; but 
 that nothing in these rules contained shall authorize 
 any referee to commit any person to prison, or to 
 enforce any order by attachment or otherwise {o) . 
 
 The Common Law Procedure Act, 1854, provides. On failure of 
 that if reference is authorized to be made to a single V^^'^^^^^ J^l'^p 
 
 o may appoint 
 
 arbitrator, and all the parties do not, after differences an arbitrator. 
 have arisen, concur in the appointment of an arbitrator ; 
 or if any ai)pointed arbitrator refuse or become in- 
 capable to act, or die, and the terms of the document 
 authorizing the reference do not show that it was in- 
 tended that such vacancy should )wt be supplied, and 
 the parties do not conciu- in appointing a now one ; then 
 any party may serve the remaining parties with a written 
 notice to appoint an arbitrator ; and if within seven clear 
 days after such notice shall have been served no arbi- 
 trator be appointed, it shall be lawful for any judge 
 
 {I) Rtat. 14 & 15 Vict. c. 99, [ii) Ibid, rule 50. 
 
 s. IG. \o) IJnd. rule 51. 
 
 (/;<) Order XXXVI. rule 49.
 
 312 
 
 OF CHOSES IK ACTION. 
 
 of any of tlio superior Courts of law or efj[uity at "West- 
 minster, upon summons to Le taken out by the party 
 having served such notice, to appoint an arbitrator, who 
 shall have the same power to act in the reference and 
 to make an award as if he had been appointed by con- 
 sent of all parties {]>). 
 
 Death of 
 either party. 
 
 Banlcrujitcy. 
 
 The authority of arbitrators is liable to be determined 
 not only by a revocation of the submission, but also 
 by the death of either of the parties previously to the 
 making of the award (q). In order to obviate this in- 
 convenience, it is now usual to insert in the order or 
 rule of Court, by which reference is made to arbitration, 
 a provision that tlie death of either of the parties shall 
 not operate as a revocation of the authority of the arbi- 
 trators, but that the award shall be delivered to the 
 executors or administrators of the parties, or either of 
 them, in case of their or his decease (r). And the same 
 stipulation may be effectually made in a submission to 
 arbitration by private agreement (s). The bankruptcy 
 of either party is not a determination of a submission to 
 arbitration (f). 
 
 Death, <S:c. of 
 one of two 
 arbitrators. 
 
 When the reference is made to two arbitrators, one 
 appointed by each party, it is provided by the Common 
 Law Procedure Act, ISo-l (??), that either party may, in 
 case of the death, refusal to act or incapacity of any 
 arbitrator appointed by him, substitute a neAv arbitrator, 
 unless the document authorizing the reference show that 
 it was intended that a vacancy should not be supplied. 
 
 {p) Stat. 17 & 18 Vict. c. 125, 
 8. 12. 
 
 {fj) Cooper V. Johnson, 2 Bam. 
 & Aid. 394 ; Brooke v. Mitchell, 
 6 Mee. & Wels. 473. 
 
 (r) Tyler v. Jones, 3 Bam. & 
 Cress. 144 ; Prior v. Hemhroiv, 8 
 Mee. & Wels. 873 ; 2 Wms. 
 Saund. 133 d, n.{d). 
 
 (s) Macdouf/aJl v. Robertson, 2 
 You. & Jerv. 11 ; S. C. 4 Bing. 
 435; 1 Moo. & P. 147. 
 
 (/) Ucmsiforth v. Bryan, 1 C. 
 B. 131. 
 
 lyu) Stat. 17 & IS Vict. 0. 125, 
 s. 13. As to three arbitrators, 
 see Gumm v. Hallett, L. E., 14 
 Eq. 555.
 
 OF AKIilTRATIOX. 313 
 
 And if on sucli a reference one party fail to appoint an If one party 
 arbitrator, cither orip-inally or by way of substitution as ^^^^ [°I^' 
 
 ' o I ./ i/ point, the 
 
 aforesaid, for seven clear days after the other party shall other party 
 have appointed an arbitrator, and shall have served the hls^arintr*at!.r 
 party so failing to appoint with notice in writing to *° ^^^ solely, 
 make the appointment, the party who has appointed an 
 arbitrator may appoint such arbitrator to act as sole 
 arbitrator in the reference ; and an award made by liim 
 shall be binding on both parties as if the appointment 
 had been by consent ; provided, liowever, that the Court 
 or a judge may revoke such appointment on such terms 
 as shall seem just (.r). 
 
 "When no time is limited for the making of the award Time for 
 it must be made within a reasonable time {//) ; but if a ™yardf ^^ 
 given time be limited, the award must be made within 
 that time, unless the time for making it be enlarged (z). 
 And if the award is required to be made and ready to 
 be delivered to the parties by a certain day, it will be 
 considered as ready to be delivered if it be made {a), 
 unless the arbitrators should fail to deliver it to either of 
 the parties on request made for that purpose on the last 
 day (b). The submission to arbitration frequently con- Enlargement 
 tains a power for the arbitrators or imipire to enlarge " 
 the time for making the award ; and in this case the 
 time may be enlarged from time to time (c) by such 
 arbitrators or umpire (<■/), provided the enlargement be 
 made on or before the expiration of the time originally 
 
 (.r) Stat. 17 & 18 Vict. c. 125, s. (c) 1 Wms. Saund. 327 a, n. (3). 
 
 13. The authority of an arbitrator, («) Bradsey v. Chjston, Cro. 
 
 appointed to act as sole arhi- Car. 541. 
 
 trator by virtue of this section, {b) Brooke v. Mitchell, 6 JMee. 
 
 may be revoked by either pari tj, k Wfls. -173. 
 
 revoking his submission; Frascr (r) Payne v. Dcakle, 1 Taunt. 
 
 V. TLhremperger, 12 Q. B. D. 310 ; 509 ; Barrett v. Tarry, 4 Taunt, 
 
 see antc^ p. 310. G58. 
 
 (y) Macdovgall v. Bobertson, ubi {d) See Bimsdale v. Bobertsoii 
 
 si'pra. 2 Jones & Lat. 58.
 
 314 OF CllOSKS IX A( IIOX. 
 
 limited for making tlio award (r). And if tlie submis- 
 sion be made a ride of Court, then, wliether the arbi- 
 trators or umpire have power to enlarge the time or 
 not (./"), the Court, or a judge thereof, has power to 
 enlarge the time {g). And should no enlargement be 
 formally made, yet the parties may, by continuing their- 
 attendance on the reference, or by recognizing the pro- 
 ceedings under it, virtually empower the arbitrators or 
 umpire to make a valid award subsequently to the time 
 originally limited (//). And the Common Law Pro- 
 cedure Act, 1854, provides, that the arbitrator acting 
 under any such document or compulsory order of re- 
 ference, as mentioned in the Act, shall make his avv^ard 
 under his hand, and (unless such document or order 
 respectively shall contain a different limit of time) 
 within three mouths after he shall have been appointed 
 and shall have entered on the reference, or shall have 
 been called upon to act by a. notice in writing from any 
 party ; but the parties may, by consent in writing, en- 
 large the term for making the award. And the superior 
 Com't of which such submission, document, or .order is or 
 may be made a rule or order, or any judge thereof, may 
 for good cause truly stated in the rule or order for en- 
 largement from time to time enlarge the term for making 
 the award ; and if no period be stated for the enlarge- 
 ment in such consent or order for enlargement, it shall be 
 deemed to be an enlargement for one month (/). The 
 word " month " in an Act of Parliament now means a 
 calendar month (/.■). 
 
 [e) See Reid v. Fryatt, 1 M. Arbitration, V.-C. S., Law Rep., 
 
 & Sel. 1 ; Mason v. WaUis, 10 B. 3 Eq. 261. 
 & Cress. 107. (A) Hex v. lUU, 7 Price, 636. 
 
 (/) Parheryv.jS'ewnham, 7jilee. [i) Stat. 17 k. 18 Vict. c. 125, 
 
 & "VVels. 378 ; Leslie v. Richard- s. 15 ; Biiuion v. Strong, L. E,., 
 
 S071, 6 C. B. 378. 9 Q. B. 117. 
 
 (g) Stat. 3 & 4 Will. IV. c. 42, (/) Stat. 13 & 14 Vict. c. 21, 
 
 s. 39; Re Warner and I'oiCclVs s. 4.
 
 OF AKIUTKAllON. 315 
 
 In proceeding- in the business of tlie arbitration, the Attendance of 
 arbitrators are bound to re(|uire the attendance of the P^i'tics. 
 parties, for which purj^ose notice of the meetings of the 
 arbitrators slioukl be given to them (/). But if either 
 party negh^et to attend either in person or by attorney, 
 after due notice, the arbitrators may proceed without 
 him (n/). In taking tlio evidence the arbitrators are at Mode of pro- 
 liberty to proceed in any way they please, if the parties ^^'^*li"o- 
 have due notice of their proceedings, and do not object 
 before the award is made (ii). But each must use his 
 own judgment (o), and, in order to obviate any objec- 
 tion, they ought to proceed in the admission of evidence 
 according to the ordinary rules of law {p). The award 
 should bo signed by the arbitrators in each other's 
 presence (y), and when made it must be both certain 
 and final. Thus if the award be that one party enter Award must 
 into a bond Avith the other for his quiet enjoyment of ^o certain and 
 eertaiil lands; this award is A'oid for uncertainty ; for it 
 docs not appear in what sum the l)ond should bo (r). 
 Witli regard to certainty, however, the rule of law is, /(/ 
 certum cd quod cerium rcddi poicd, and therefore an 
 award that one of the parties should pay the costs of 
 an action is good without fixing the amount of the 
 costs, for that may be ascertained by the taxing 
 ofhccr(.s). On the question of finality many cases have 
 arisen. If t]ie arbitrators be empon-crcd to decide all 
 matters in difference between the parties, the award 
 
 (/) Anon., 1 Salk. 71. (?) SUihrorih v. Inns, 13 Mce. 
 
 (;«) Uarcourt v. Mamnhottom , k AVels. 4CG ; IJ'ade v. Uowliiiff, 
 
 1 Jac. & Walk. 512 ; Scod v. Vnn Q. B., 18 Jur. 728 ; 2 E. & B. U ; 
 
 Sandau, 6 Q. B. 237. Eads v. JFilliams, 4 De Gex, M. 
 
 («) Tiidout V. Ti/r, 1 Bos. & V. & G. G74, 688. 
 91. ('•) Sa»io)i''s case, 5 B.ep. 77 h. 
 
 {") WhUmore v. Si)nth, o H. & (>) Cargcy v. Aitcheson, 2 B. & 
 
 N. 824. Cress. 170 ; S. C, 3 Dowl. & Ey. 
 
 ill) Altormij-G cneralv . Davison, 433 ; 2 Wms. Saund. 2'J3 b, n. («). 
 M'Cld. & Y. 100.
 
 316 OV ClIOSKS IN ACTION. 
 
 ■will not necessarily be -wanting' in tinalitj for not 
 deciding on all sueli matters, unless it appear to have 
 been vrquired that all such matters should be deter- 
 mined by the award {f) . If the award reserve to the 
 arbitrators [ii), or give to any other person (.r), or to one 
 of the parties (//), any further authority or discretion in 
 the matter, it will be bad for want of finalit}^ And if 
 the award be that anj^ stranger to the reference should 
 do an act, or that money should be paid to, or any other 
 act done in favour of a stranger, unless for the benefit 
 of one of the parties (s) , such award will l)e void {a) . An 
 award, however, may be partly good and partly bad, 
 provided the bad part is independent of and can be 
 separated from that w^hich is good(i). But if, by 
 reason of the invalidity of part of the award, one of the 
 parties cannot have the advantage intended for him as 
 a recompense for that which he is to do, according to 
 that part of the award which would otherwise be* valid, 
 the whole will be void (c). If it should appear on the 
 face of the award that the arbitrators, intending to 
 decide a point of law, have fallen into an obvious 
 mistake of the law, the award will be invalid (r/) . But 
 where subjects involving questions both of law and fact 
 are referred to arbitration, the arbitrators may make an 
 award according to what they believe to be the justice 
 
 (;;) WrightsonT.Bijicater,Z'M.ee. (a) CooJceY.Whorwood,2^a.\xndi. 
 
 & Wels. 199; 1 Wms. Saund. 337; Adam v. Statham, 2 Lev. 
 
 32 a, n. («). 235 ; Fisher v. rimhlcy, 11 East, 
 
 {u) Manser x. Heaver, 3 Bar. & 188. 
 
 Adol. 295. {b) Fox v. Smith, 2 Wils. 2(;7 ; 
 
 {j;) Tomlin v. 2Iayor of Ford- Aitcheson\. Cargey, 2 Bing. 199; 
 
 wich, 5 Ad. & Ell. 147 ; Eastern Lewis v. Itossiter, Ex. D., 23 W. 
 
 Counties Railway Company Y. East- R. 832 ; 44 L. J., Ex. 136. 
 
 em Union Railway Company, 3 De {c) 2 "Wms. Saund. 293 b, n. 
 
 Gex, J. & S. 610. (1). 
 
 {y) Glover v. Barrie, 1 Salk. 71. {d) Ridout \. Fain, 3 Atk. 494 ; 
 
 (r) Wood V. Adcocl,-, 7 Ex. Rep. Richardson v. Xourse, 3 Barn. & 
 
 468. Aid. 237.
 
 OF ARBITRATION. 317 
 
 of the case, ii'respective of the law on any particular 
 
 point {(•). And it is provided, that it shall be lawful Arbitrator 
 
 for the arbitrator, upon any compulsory reference under fecial case for 
 
 the Common Law l^rocodiu'o Act, 1854, or upon any t^^e opiuiou of 
 
 reference l)y consent of parties, where the submission is 
 
 or may bo made a rule or order of any of the superior 
 
 Courts of law or equity at Westminster, if he shall 
 
 think fit, and if it is not provided to the contrary, to 
 
 state his award as to the whole or any part thereof in 
 
 the form of a special case for the opinion of the Coiu't ; 
 
 and when an action is referred, judgment, if so ordered, 
 
 may be entered according to the opinion of the 
 
 Court (./'). By the Rides of the Supreme Court, Referee may 
 
 1883 ifi), the referee may, before the conclusion of any tTonTorTJSe 
 
 trial before him, or by his report under the reference facts for 
 
 made to liim, submit any question arising therein for 
 
 the decision of the Court, or state any facts specially, 
 
 with power to tlie Court to draw inferences therefrom, 
 
 and in any such case the order to be made on such 
 
 submission or statement shall be entered as the Court 
 
 may direct. 
 
 When the submission to arbitration was not made Setting: aside 
 the rule of any other Court {h), the Com-t of Chancery, ^^'^ ''''"'''''^' 
 according to the ordinary principles of cqmty, had 
 power to set aside the award for corruption or other 
 misconduct on the part of the arbitrators, or if they 
 should have been mistaken in a plain point of law or 
 fact (/) . If the submission was made a rule of Coui-t 
 imder the above-mentioned statute of Will. III. [Ic), the 
 
 (<■) lie Badger, 2 Barn. & Aid. judgment of the Court ; Courlauld 
 
 691 ; Young v. Walker, 9 Ves. y. Legh, Law Eep., 4 Ex. 187. 
 
 364 ; lludgkinson v. Fernie, 3 C. {g) Order XXXVI. rule 52. 
 
 B., N. S. 189. \h) Nichols v. Roe, 3 Myl. & 
 
 (/) Stat. 17 & 18 Vict. 0. 125, Keen, 431. 
 
 s. 5 ; Rhodes v. Airedale Drainage {>) Ridout v. Fain, 3 Atk. 494. 
 
 Commissioners, 1 C. P. D. 402. (/.) Stat. 9 & 10 Will. III. 
 
 No error can be broufrht on the c. 15.
 
 318 OF ClIOSES IX ACTION. 
 
 Court of wLioh it was mado a rulo Lad power to set 
 aside the award, not only on the grounds of coiTuption 
 or undue practice mentioned in the Act, but also for 
 mistakes in point of law (/) ; and no other Court had 
 a right to entertain any application for this purpose (m) . 
 And although, as we have seen (»), the Court of Chan- 
 eery and the Courts of Common Law at Westminster 
 were abolished by the Judicature Act of 1873 (o), yet 
 the jurisdiction of the Court of Chancery is now vested 
 in the High Court of Justice (p), and principally exer- 
 cised in the Chancery Division, whilst all causes and 
 matters which would have been within the exclusive cog- 
 nizance of the Com'ts of Common Law, if that Act had 
 not passed, are now assigned to the Queen's Bench Divi- 
 sion (q) . The application to set aside the award must, 
 however, be made within the time limited by the Act 
 of Will. III. {)') . But although the time limited by that 
 statute may have expired, yet if there be any defect 
 apparent on the face of the award, the Coiu"t will not 
 assist in carrying it into effect by granting an attach- 
 ment for its nonperformance (.s). If the submission to 
 arbitration be made by rule or order of the Court in any 
 cause independently of the statute, the Cornet still retains 
 its ancient jurisdiction of setting aside the award on 
 account either of the misconduct of the arbitrators, or of 
 their mistake in point of law (/) . In analogy, however, 
 to the practice under the statute of Will. III., the Court 
 
 {!) Zachary v. Shepherd, 2 T. (^;) Stat. 36 & 37 Vict. c. 66, 
 
 Rep. 781 ; Lowndes v. Lowndes, 1 s. 16. 
 
 East, 276, ovcTvvAmg Anderson v. {q) Stat. 36 & 37 Vict. c. 66, 
 
 Coxcter, 1 Stra. 301 ; see 1 Wms. s. 34 ; Order in Council, 16th 
 
 Saund. 327 d, n. (4). Dec. 1880 ; sec ante, p. 99. 
 
 {m) Stat. 9 & 10 "Will. III. (/■) Lowndes y. Lowndes, I'Ei&st, 
 
 0. 15, s. 2; Xiehols v. Roe, .2, Myl. 276 ; oite, p. 308. 
 
 & Keen, 431. (.s) Fedley \. Goddard, 7 T. Rep. 
 
 («) Ante, p. 99. 73. 
 
 (0) See stats. 36 c^c 37 Vict. (C) Lucas v. irUson, 2 BiuT. 
 
 c. 66, s. 3 ; 37 & 38 Vict. c. 83. 701.
 
 OF Ar.RTTUATlOX, ' HIO 
 
 in ordinary cases requires npplieution for sotting- aside 
 the award to be made within the time limited l)y that 
 statute (u) ; hut upon sufficient grounds it will grant 
 such an application, tliough made after the expiration 
 of that time {.r). All applications, however, to set aside 
 any award made on a compulsory reference must, hy 
 the Common Law Procedui'e Act, 1854, be made within 
 the first seven days of the term next following th(; pub- 
 lication of the aAvard to the parties, whetlier made in 
 vacation or term ; and if no sucli a})plication is made, or 
 if no rule is granted thereon, or if any rule granted 
 thereon is afterwards discliargcd, the award is final {>/). 
 The Court or a judge has also power under this Act 
 to remit the matters referred to arbitration, or any of 
 them, to the reconsideration of the arbitrator, upon 
 such terms as to costs and otherwise as to such Court 
 or judge may seem proper (c). And the Eules of the 
 Supreme Court, 1883 (a), provide that the Court shall 
 have power to require any explanation or reasons from 
 the referee, and to remit the cause or matter, or any 
 part thereof, for re-trial to the same or any other 
 referee ; or the Com-t may decide the question referred 
 to any referee on the evidence taken before him, either 
 with or without additional evidence as the Court may 
 dii'ect. After the a-\^-ard has boon executed hy the 
 arbitrator, he has no power to amend even a clerical 
 eiTor, but the matter must be remitted to him by the 
 Com't or a judge (b). 
 
 It is usual to provide for the appointment of an 
 lunpii-e in case the parties should disagree. But the 
 
 (ii) Macarthur v. Campbell, 5 (//) Stat. 17 & 18 Vict. c. 12.5, 
 
 Barn. & Adol. 518 ; Smith v. s. 9. 
 Whiimorc, 1 Hera. & Mill. 'uQ, (r) Ihid. s. 8. 
 
 affirmed 10 Jur., N. S. 1190. («) Ordei> XXXVI. rule 52, 
 
 [x) liaivsthorn v. Ar>iold, 6 {h) ^[ordue \. Pitlmer, Id'^.'R. 
 
 Bam. & Cross. G29 ; S. C. 9 Dow. 8G ; Law Rep., G Ch. Ap. 22. 
 & Rv. o5G.
 
 320 OV CII(3SES IN ACTIOX. 
 
 Two arbitra- Coniiiioii Law Procodure Act, 1854, provides (c), that 
 appohit^an "vvlieii the reference is to two arbitrators, and the terms 
 umpire. gf the docvuncnt authorizing it do not show that it was 
 
 intended that tliere shoukl not he an umpire, or provide 
 otherwise for the appointment of an umpire, the Uxo 
 arbitrators may appoint an umpire at any time within 
 the period cluiing which they have power to make an 
 award, unless they be called upon to make the appoint- 
 ment sooner, by notice under the following provision. 
 On failure of And if, where the parties or two arbitrators are at 
 parties, J^i^e ;[i]3gj.j-y ^^ appoint an umpire or third arbitrator, such 
 an umpire. parties or arbitrators do not appoint an imipire or third 
 arbitrator, or if any appointed umpire or third arbitrator 
 refuse to act or become incapable of acting, or die, and 
 the terms of the document authorizing the reference 
 do not show that it was intended that such a vacancy 
 should iiof be supplied, and the parties or arbitrators 
 respectively do not appoint a new one, then any party 
 may serve the remaining parties, or the arbitrators as 
 the case may l)e, with a written notice to appoint an 
 umpire or third arbitrator ; and, if within seven clear 
 days after such notice shall have been served no umpire 
 or third arbitrator be appointed, it shall be lawful for 
 any judge of any of the superior Coiu'ts of law or equity 
 at Westminster, upon summons to be taken out by the 
 party having served such notice, to appoint an umpire 
 or third arbitrator, who shall have the same jDOwer to 
 act in the reference and make an award as if he had 
 been appointed by consent of all parties (d). 
 
 Umpire. If an umpire be appointed, his authority to make an 
 
 award commences from the time of the disagreement of 
 the arbitrators (r) , unless some other period be expressly 
 
 [c] Stat. 17 & 18 Vict. e. 12.5, & Johnson, 90 ; Collins v. Collins, 
 s. 14. 26 Beav. 306. 
 
 {d) Sect. 12; see Ee lord, 1 K. {(■) Sinaiks v. Wright, 3 Mau.
 
 OF AKIUTIIATIOX. 321 
 
 fixed ; aud if, after the disagreement of the arbitrators, 
 he make an award before the expiration of the time 
 given to the arbitrators to make their award, such award 
 will nevertheless be valid (/), And it is provided that 
 if the arbitrators shall have allowed their time, or theii- 
 extended time, to expire without making an award, or 
 shall have delivered to any party, or to the umpire, a 
 notice in writing stating that they cannot agree, the 
 umpire may enter on the reference in lieu of the arbi- 
 trators {(j) . The umpire must be chosen by the arbi- 
 trators in the exercise of their judgment and at the 
 same time {//), and must not be determined by lot (/), 
 unless all the parties to the reference consent to his 
 appointment by such means (/.•). In order to enable 
 him to form a proper decision, he ouglit to hear the 
 whole evidence over again (/), unless the parties should 
 be satisfied with his deciding on the statement of the 
 arbitrators {»/). And the whole matter in difference 
 must be submitted to his decision, and not some par- 
 ticular points only on which the arbitrators may dis- 
 agree {)i). 
 
 An award for the payment of money creates a debt Awcard for 
 from one party to the other, for which an action may m'cmey'creates 
 be brought (o) , and which will be sufficient to support » debt. 
 
 «& Sel. 559 ; Sprigeus v. Nash, 5 Hopper, Law Rep., 2 Q. B. 3G7 ; 
 
 Mau. & Sel. 193. 8 Best k Smith, 100. 
 
 (/) Sprige»s v. Nash, ubi sup. {k) Re Jamicso)), 4 Adol. cV EU. 
 
 {g) Stat. 17 & 18 Viot. c. 125, 945. 
 
 s. 15. (0 Re Salkehl, 12 Ad. cV: EU. 
 
 {h) Re Lord, Q. B., 1 Jur., 767 ; Re Uaivley, 2 Do Gex & 
 
 N. S. 893 ; 5 E. & B. 404. Smale, 33. 
 
 (i) In re CasscU, 9 Barn. & (>«) Hall v. Lawrence, iT.'Rjs^. 
 
 Cress. 624 ; Ford v. Jones, 3 Barn. 589. 
 
 & Adol. 248 ; European, S;e. Ship- («) ToUit v. Saunders, 9 Price, 
 
 ping Company v. Crosskcij, 8C. B., 612. 
 
 N. S. 397. See, however, Rv {o) 2 Wins. Saund. 62 a, n. (5). 
 
 W.P.P. Y
 
 322 
 
 OF CHOSES IN ACTION. 
 
 a petition for ad judication of bankruptcy {p) . But when 
 the award is made a rule of Court, its performance may, 
 as we have seen {q), he enforced by attachment; and, 
 if necessary, the Court will decree a specific perform- 
 ance {)'). And it is provided that when any award 
 directs possession of any lands or tenements to be de- 
 livered to any party, the Com-t, of which the document 
 authorizing the reference is or is made a rule or order, 
 may order any party to the reference who shall be in 
 possession of such lands or tenements, or any person in 
 possession of the same, claiming under or put in pos- 
 session by him since the making of the dociunent autho- 
 rizing the reference, to deliver possession of the same to 
 the party entitled thereto piu'suant to the award ; and 
 such rule or order to deliver possession shall have the 
 effect of a judgment in ejectment against every such 
 party or person named in it, and execution may issue, 
 and possession shall be delivered by the sheriff as on a 
 judgment in ejectment (.s). As we have seen(?'), where 
 any cause or matter, or any question in any cause or 
 matter is referred to a referee under the Hules of the 
 Supreme Court, 1883 (/^), the referee now has the same 
 power to direct that judgment be entered for any or 
 either party as a judge of the High Court : but the 
 referee is not authorized to enforce any order by attach- 
 ment or otherwise. 
 
 Award under The av/ard of arbitrators or of an umpire, though 
 deed. indented and under hand and seal, is not a deed unless 
 
 (;;) Ex parte Liinjard, 1 Atk. v. Hardi/, 3 P. Wms. 190. 
 241. (s) Stat. 17 k 18 Vict. c. 125, 
 
 [q) Ante, p. 306. 8. 16. 
 
 (>•) Marquis of Ormoiul v. Kyn- (t) Ante, p. 311. 
 
 iierslei/, 2 Sim. & Stu. 15 ; TTood («) See Order XXXVI. rules 7, 
 
 V. Taunton, 11 Beav. 449; Hall 48—51.
 
 OF AHltlTHATIOX. 
 
 323 
 
 delivered as sucli {»/). It is now suhjcet to stamp duly atimiy. 
 according to the table in tlie note (>/). 
 
 (m) Brown v. Vawser, 4 East, 584. 
 
 («) Stat. 33 & 34 Vict. c. 97. Wliere the amount or value 
 of the matter in dispute does not exceed £ 
 Exceeds £5 and does not exceed £10 
 
 10 
 
 20 
 
 30 
 
 40 
 
 50 
 
 100 
 
 200 
 
 500 
 
 750 
 
 20 
 
 30 
 
 40 
 
 50 
 
 100 
 
 200 
 
 500 
 
 750 
 
 1,000 
 
 And where it exceeds £1,000, and iu any other case 
 not above pi'ovidcd for 
 
 £ 
 
 s. 
 
 (L 
 
 
 
 
 
 3 
 
 
 
 
 
 6 
 
 
 
 1 
 
 
 
 
 
 1 
 
 C 
 
 
 
 2 
 
 
 
 
 
 2 
 
 C 
 
 
 
 5 
 
 
 
 
 
 10 
 
 
 
 
 
 15 
 
 
 
 1 
 
 
 
 
 
 1 
 
 5 
 
 
 
 1 15
 
 ( ;324 ) 
 
 PART III. 
 
 OF INCOEPOEEAL PEESONAL PEOPEETY. 
 
 CHAPTER I. 
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 
 
 In addition to goods and chattels in possession, whicli 
 have always been personal property, and to debts, which 
 have long since been considered so, there exist in modern 
 times several species of incorporeal personal property, 
 to which we now projiose to direct our attention. These 
 species of property are certainly not cJioses in j^osscssion, 
 neither yet are they like debts strictly choses in action, 
 thoiigh often classed as such. In analogy, therefore, to 
 the well-known division of real estate into corporeal and 
 incorporeal, we have ventured to place these kinds of 
 property together into a class to be denominated incor- 
 2)oreal j^o'sonal j^roperty. A debt no doubt is also in- 
 corporeal, but it is still well characterized by its ancient 
 name of a chose in action (a). 
 
 {a) The late learned author's classification of personal property, as 
 corporeal or incorporeal (see ante, pp. 4, 7, and the test above), is 
 open to the objection, that it opposes the subject-matter of rights of 
 one kind to rights of another kind. The division of hereditaments 
 into corporeal and incorporeal is open to the same objection ; see the 
 editor's note to WiUiams on Real Property, p. 11, n. {:), 14th ed. But 
 the distinction between corporeal and incorporeal hereditaments is esta- 
 blished as part of the English law, and the student is fain to acquiesce 
 therein ; notwithstanding that he may agree with the opinion of Mr. 
 John Austin, who denounced this method of classification for useless 
 and unmeaning jargon, inconsistently employed ; see Austin on Juris- 
 prudence, pp. 372, 708, 804, 4th ed. The fact, that such a distinction
 
 OF PERSONAL AN'ISLITIKS, ST()( KS AM) SHARKS. 325 
 
 The first kind of incorporeal personal property which Tersonal an- 
 we shall mention is a ponoudl ainiuif//. This kind of ^^^^y- 
 
 obtains in the case of hereditaments, is thought not to furnish a suffi- 
 cient reason for introducing a similar chissification in the case of per- 
 sonal estate. If a man has 100/. in gold, and is also entitled to 100/. 
 Consols, -svhj' should wc call the former corporeal and the latter incor- 
 l>oreal personal projicrty ? It may bo answered that one hundred gold 
 sovereigns are visible and tangible ; whilst that, which we call 100/. 
 Con.sols, is but the ?-iffhi to receive 3/. a year for ever, subject to the 
 right of the Government to redeem this annuity on payment of 100/. 
 sterling (see post, p. 328) ; and that a right is not visible and tangible, 
 but is a mere conception of the mind. But what is meant by saying 
 that a man has one hundred sovereigns ? It is meant that he enjoys 
 a riffht of ownership, or property, in respect of one hundred sovereigns; 
 and probably it is also meant that he enjoys as well a rig /it of posses- 
 sion in resiiect of them. Again, speaking popularly, it may be said 
 that both the 100/. in gold and the 100/. Consols form pai-t of the man's 
 liersonal pro2:)erty, as distinguished from his real property, and will 
 go to his executor or administrator after his death. But it would not 
 bo accurate to say that, in the former instance, the executor or ad- 
 ministrator takes one hundi-ed gold pieces, whilst in the latter he 
 succeeds to a mere right. Rir/hts devolve upon the executor or admi- 
 nistrator in the case of the 100/. in gold, just as much as in the other 
 instance ; for he succeeds to the rights of ownership and possession 
 which were enjoyed by the deceased in respect of the hundred pieces 
 of gold. And it is thought that the rights of ownership and posses- 
 sion are at least as incoi-poreal as the right which constitutes a 
 Government annuity. We have seen [ante, p. 4) that the law divided 
 chattels personal into choses in possession and choses in action. This 
 classification is open to the same objection ; for it opposes moveable 
 articles, considered as the subject of rights of one kind, to rights of 
 another kind. But, like the division of hereditaments into corporeal 
 and incorporeal, the division of chattels personal into choses in 
 possession and choses in action forms part of our law ; and the 
 student of English law should consider both these classifications 
 historically rather than analytically. If, however, it should be 
 desired to classify the rights, which constitute personal estate, 
 according to the methods of analytical jurisprudence, it is sub- 
 mitted that the most important distinction is that between 
 rights, which avail against all the world, and rights, which 
 avail only against particular persons ; see Austin on Jurisprudence, 
 pp. 45 ct seq., 380 ct scq., 964 et seq., 4th ed. The rights of ownership, 
 or propcrtij, and possession fall into the former class. And, applying 
 this classification to the subject-matter of the present treatise, it will 
 be observed that the English law relating to choses in possession deals
 
 326 OF IXCOUl'OKKAJ. I'KKSONAL I'UOPEllTV. 
 
 property is not indeed of so modern an origin as some 
 of those which we shall hereafter mention. It consists 
 of an annual payment, not charged on real estate ; but 
 it may nevertheless be limited to the heirs, or the heirs 
 of the body, of the grantee. In former times it was 
 doubted whether an annuity was not a mere chose in 
 action, and therefore incapable of assignment {h) ; but 
 this objection has long been overruled. When limited 
 to the heii'S of the grantee it will, on his intestacy, 
 descend, like real estate, to his heir ; but it is still 
 personal property (c) , and will pass by his will under 
 a bequest of all his personal estate (//). When given to 
 
 chiefly ■with the ownership aud possession of moveable articles (see 
 ante, pp. 10, 29 et seq.) ; while choses in action, strictly so called (see ante, 
 pp. 4, 97), are rights which avail only against particular persons. 
 Personal annuities, stocks and shares fall into the same class of rights 
 as choses in action. And it is submitted that we shall ascertain their 
 nature more accurately, by considering them, as rights, which avail 
 against particular persons only, than by calling them incorporeal 
 personal property. For example, if a man grant a personal annuity, 
 and do not charge it upon any specific property, the right of the 
 annuitant is merely a right against the grantor personally. The 
 nature of such a right appears clearly when we consider that it may 
 be barred by the bankruptcy of the grantor ; and that, if it be en- 
 forceable against the grantor's executors, administrators, heirs and 
 devisees (see ayite, pp. 159, 160 ; Williams's Conveyancing Statiites, 
 234, 235), it can only be enforced against them to the extent of the 
 assets which they have derived from the grantor. Stock in the public 
 funds — that is to say, Consolidated £3 per cent. Bank Annuities and 
 other Grovernment annuities — is a right of the same nature as any 
 other personal annuity. In this respect, ' ' the circumstance that the 
 government is the debtor, makes no difference" (see 9 Ves. 177). A 
 share in a joint-stock company, considered a source of emolument, is 
 of the same nature as a share in a partnership ; it is a right to receive 
 a certain share of the profits, or, it may be, of the money realized 
 from the assets of the company or firm. Such a right is enforceable 
 only against the company, regarded as a person in law, or against the 
 particular members of the partnership. On the other hand, the rights 
 known as patents and copyrights are among the rights which avail 
 against all the world.- -Editor's Note. 
 
 {b) Co. Litt. 141b, n. (1). vis, 3 Beav. 450, 461. 
 
 [c] Earl of Stafford v. Buckle//, {d) Aubin v. iJaly, 4 Barn, k 
 
 3 Ves. sen. 171 ; Radhum v. Jer- Aid. 59.
 
 OF I'KRSONAL ANNl ITIKS, STOCKS AM) SHARKS. 327 
 
 the grantee and the heirs of his body, the grantee does 
 not acquire an estate tail ; for this kind of inheritance 
 is not a feneinciif within the meaning of the statute 
 De Do)tis ConcUtionalibus {c). The grantee has merely 
 a fee simple' co)/difioiial on his having issue, such as a 
 grantee of lands would liave had under a similar grant 
 prior to the statute Be iJo/n'.s (/'), or as a copyholder 
 would now take in manors where there is no custom 
 to entail ((/). When the grantee has issue, lie may 
 therefore alien the annuity in fee simple by a mere 
 assignment ; but should he die without issue the an- 
 nuity will fail. A personal annuity given to a man 
 for ever will devolve on the executor, and not on the 
 heir of the grantee {h). 
 
 The next kind of incorporeal personal property to stock or bank 
 be considered is stock in the public funds, or bank not exist be^ 
 annuities. Previously to the Revolution in 1688 there fore the Revo- 
 was no funded debt properly so called ; although King 
 Charles I. and King Charles II. both found occasion 
 to raise money by the grant of annuities in fee simple 
 chargeable on particular branches of the revenue. 
 These annuities, not being payable out of real estate, 
 appear to have been the firet instances of personal 
 annuities limited to the grantees and their heii's, and 
 they gave occasion to tliose lawsuits by which the legal 
 nature and incidents of personal annuities have been 
 determined ; although some mention of such annuities 
 is certainly to be found in the old books (/). 8oon The funds are 
 after the Eevolutiou, however, a portion of the public ann^^JJigg^^ 
 debt was funded, or transferred into perpetual annuities, 
 
 {e) Turner v. Turner, 2 Amb. (j/) Ibid. 3G2, 13th ed. ; 376, 
 
 776, 782; Earl of Stafford v. 14th ed. 
 
 Buckley, ubi sup. {h) Taylor v. ^lartindale, 12 
 
 (/) See Principles of the Law Sim. 158. 
 
 of Real Property, 44, 13th ed. ; [i) Co. Litt. 144 b; Fitz. N. B. 
 
 45, 14th ed. 152 a.
 
 328 
 
 OF INCORPOUEAL PERSONAL PROPERTY. 
 
 payable, by way of interest, on the capital advanced, 
 whicli capital was to be repaid by the government in 
 the manner agreed on. And from that time to the 
 present, the funded debt of the country has, by several 
 Acts of Parliament, been greatly increased. Stock in 
 the funds, therefore, is merely a right to receive cer- 
 tain annuities, by half-yearly dividends, as they become 
 due (J), subject to the right of government to redeem 
 such annuities on payment of a stipulated sum, which 
 sum is the nominal value of the stock. Thus, 100/. 
 £3 per cent. Consolidated Bank Annuities is a right 
 to receive '31. per annum for ever, subject to the right 
 of government to redeem this annuity on payment of 
 100/. sterling. The actual value of 100/. £3 per cent. 
 Consolidated Bank Annuities (or Consols as they are 
 shortly termed) of coiu'se depends on the state of the 
 stock market, being generally lower, though it has been 
 higher, than the nominal price, which is called par. 
 
 Consols for- 
 merly the in- 
 vestment of 
 the Court of 
 Chancery. 
 
 Liability of 
 trustee not in- 
 vesting in 
 consols. 
 
 The public funds are composed of several separate 
 stocks, of which, however, by far the largest and most 
 important are the consols. In this fund alone the Court 
 of Chancery formerly invested all the money committed 
 to its care belonging to the suitors in that Court : and, 
 as it is a rule of equity, that whatever the Court would 
 certainly order to be done may be done without apply- 
 ing to the Court, every trustee and executor was justified 
 in investing in consols any money which he might have 
 held in trust, Avithout any express direction for that 
 purpose (/.) . But should he have invested trust money 
 upon any other security, without express authority so 
 to do, he would have been answerable to his cestui que 
 
 (y) WUdmanx. Wildman,9Ves. 
 174, 177 ; Rawlings v. Jennings, 
 13 Ves. 38, 45. Dividend war- 
 rants may now be sent by post, 
 Stat. 33 & 34 Vict. c. 71, s. 20. 
 
 {k) Howe V. Lord Dartmouth, 
 7 Ves. 150 ; Holland v. Hughes, 
 16 Ves. 114; Tehhs v. Carpenter, 
 1 Mad. 306 ; Korbury v. Korburg, 
 4 Mad. 191.
 
 OF rEIlS()NAI> ANNirriES, SlOt'KS AND SHARKS. 329 
 
 tnist for the amount of the money so invested, should 
 the security have failed ; and it seems also, that the 
 cestui que trust had an option either to claim the money, 
 or to have so much stock as the money improperly in- 
 vested would have purchased at the time when the im- 
 proper investment was made (/). But when the trustee 
 was authorized by the terms of his trust to invest either 
 in the funds or on real securities, it was decided, after 
 much conflict of opinion, that the cestui que trust had 
 no option to cliargo the defaulting trustee with any 
 larger sum than the amount of the money lost, with 
 interest at four per cent. For had the trustee chosen, 
 as he might, to invest on real security, the cestui que 
 trust would have gained nothing by the subsequent rise 
 in the fvmds {>ii). Recent enactments have, however, 
 now largely extended the investments in which trust 
 funds may be placed (;?) . 
 
 The legal nature and incidents of stock in the public 
 funds were fixed by the various Acts of Parliament by 
 which these funds were created. These statutes are far 
 too numerous to be here mentioned ; but their provisions 
 are generally similar. They have all been consolidated. The National 
 with amendments, by the National Debt Act, 1870 (o). ig'ro '^ ' 
 By one of the earliest of these statutes {p), it was pro- stock is per- 
 vided, that all persons who should be entitled to any of ^'^^'^^ estate, 
 the annuities thereby created, and all persons lawfully 
 claiming under tliem, should be possessed thereof rt.s of 
 a jjcrsonal estate, (Did the ■same should not be descendible 
 to the heir. Aud the National Debt Act, 1870, now 
 
 (l) Forrest v. Elwes, 4 Ves. 497; v. Amtrnther, 10 Beav. 456. 
 Fride v. Fooks, 2 Beav. 430 ; Fo- (n) See Williams's Conveyanc- 
 
 biiison V. Robinson, Lords Justices, iug- Statutes, 200 — 209, and post, 
 
 1 De Gex, Mac. & Gord. 247. tlic chapter on "Settlements." 
 
 (w) Robinson v. Robinson, ubi (o) Stat. 33 & 34 Vict. c. 71. 
 
 sup., overruling Watts v. Girdle- {p) Stat. 1 Geo. I. st. 2, c. 19, 
 
 stone, 6 Bear. 188 ; Ames v. Far- s. 9, noAv repealed by stat. 33 & 
 
 kinson, 7 Beav. 379, and Ouseley 34 Vict. c. 69.
 
 330 
 
 OF INCOUroHKAl, PERSONAL I'llOl'KK TV. 
 
 provides that the perpetual annuities, which form part 
 of the national debt, sliall continue to be personal estate, 
 and not descendible to heirs (q) . 
 
 Transfer of 
 stock. 
 
 Dividenris. 
 
 Stock in the 
 name of a 
 trustee. 
 
 The transfer of stock in the public funds is effected 
 only by the signature of the books at the Bank of 
 England in the manner prescribed by Act of Parlia- 
 ment ; and this transfer may be effected either in person 
 or by attorney thereunto lawfully authorized, by writing 
 under hand and seal, attested by two or more credible 
 witnesses (r). The legal title to stock belongs to the 
 person in whose name it is standing in the bank books ; 
 and the bank refuses to recognize trusts, or to keep 
 more than one account for the same person ; neither will 
 it allow of the transfer of any stock into the names of 
 more than four persons. Formerly the right to stock 
 always carried the right to the current half-year's divi- 
 dends, and the transfer books were closed for some days 
 prior to the days of payment of the dividends. But a 
 day for closing the books is now fixed in the month pre- 
 ceding that in w^hich the dividends are payable, and the 
 person whose name then appears inscribed in the books 
 as proprietor is, as between him and the transferee, 
 entitled to the current half-year's dividend ; and after 
 that day the person to whom any transfer is made is 
 not entitled to the current dividend (s) . When stock is 
 standing in the name of a trustee, the beneficial owner 
 may transfer his equitable interest in any manner he 
 pleases. As the claim of the beneficial owner is equit- 
 able only, there was never any occasion to give to the 
 transferee a power of attorney to sue in the name of 
 the transferor {f) ; and the transferee, on giving notice 
 of the transfer to the trustee, Avill be entitled to a legal 
 
 {q) Stat. 33 & 34 Vict. c. 71, 
 
 9. 
 
 (r) Sect. 22. 
 
 (.v) Stat. 24 Vict. c. 3, s. 7, re- 
 
 pealed by Stat. 33 & 34 Vict, 
 c. 69, and re-enacted by stat. 33 
 & 34 Vict. c. 71, s. 25. 
 (t) See aiitc, pp. 6, 7.
 
 OK I'KKSONAl. ANNUITIKS, SIOCKS AND SHARKS. 3''31 
 
 transfer of the stock into his own name in the books 
 
 at the Bank. A recent Act of Parliament contains Stock ccrti- 
 
 provisions for the conversion of stock, transferable only 
 
 at the liank, into stock certificates payable to bearer, 
 
 and transferable accordingly from hand to hand (u). 
 
 As tlie constant fluctuations of the value of the funds 
 were long since found to present a great temptation to 
 gambling on the chance of theii' rise or fall, an Act was sir John Bar- 
 passed in the reign of Geo. II. (.r) for the purpose of ^^^'^'^ ^°*- 
 suppressing such transactions. This Act was introduced 
 into Parliament by Sir Jolm Barnard, whose name it 
 bears, and it was intituled " An Act to prevent the in- 
 famous Practice of Stockjobbing." It contained several 
 provisions directed against the practice of fictitious sales 
 of stock for a future time, where the seller had not the 
 stock he sold, neither intended to procure it, and the 
 buyer had no intention to purchase the amount he 
 contracted for ; but the only object of the parties was 
 that, should the stock rise, the vendor should pay the 
 bt^j'er the difference occasioned by the increase in price, 
 and should it fall, the buyer should pay the vendor the 
 difference occasioned by the decrease (//) . But this Act, 
 having been found to interfere with legitimate trans- 
 actions, has lately been repealed (:;). 
 
 (m) Stat. 26 Vict. c. 28, re- becomes a lame duck. A stock- 
 pealcd by Btat. 33 & 34 Vict. ' jobber, properly so called, is a 
 c. 69, and re-enacted by stat. 33 person ■who supplies the public, 
 & 31 Vict. c. 71, part 5, ss. 26 et through the medium of the 
 scq. brokers, with money or stock to 
 {x) Stat. 7 Geo. II. c. 8. the exact amoixnt they may re- 
 (y) See Child v. Morky, 8 T. quire, making a profit only of 
 Rep. 610; Hcclcschcr y. Gregory, l-8th per cent, on each trans- 
 4 East, 607, 614. The buyer who action; a course of bu.siness alto- 
 is interested in the rise of the gether different from the " in- 
 funds is called, in the language famous" practices usually called 
 of the Stock Exchange, a hull, the stockjobbing by the public, 
 seller is a hear, but cither party, {z) Stat. 23 Vict. c. 28. 
 if unable to pay his differences.
 
 332 
 
 OF IXCORPOllKAl. PKUSONAL niOPERTY, 
 
 Contract for 
 Bale of stock 
 not within the 
 Statute of 
 Frauds. 
 
 Stamp duty 
 on contract 
 notes, and on 
 mortgage of 
 stock. 
 
 It seems that stock is not (joodx, irares or lucrcZ/andize 
 within the 17th section of the Statute of Frauds (a), so 
 that it does not require a written memorandum for a 
 contract for its sale, if the value exceeds ten poimds and 
 the buyer does not accept and receive any part, nor give 
 something" in earnest to bind the bargain, or in part 
 payment (/;). Contract notes for the sale or purchase 
 of any stock or marketable security of the value of five 
 pounds or upwards, are now liable to a stamp duty of 
 one penny (r) ; and every mortgage of any stock or 
 marketable security is subject to a stamp duty of ten 
 shillings for every 5,000/., and also for any fractional 
 part of 5,000/., of the amount secured. And no release 
 or discharge of any such mortgage is chargeable with 
 any ad valorem duty {d). 
 
 Infants. 
 
 Lunatics and 
 idiots. 
 
 By a modern Act of Parliament, the Court of Chan- 
 cery is empowered to order the dividends of stock 
 belonging to infants to be applied for their main- 
 tenance {c) ; and all causes and matters to be commenced 
 under any Act of Parliament, by which exclusive juris- 
 diction in respect to such causes and matters has been 
 given to the Court of Chancery, are now assigned to the 
 Chancery Division of the High Court of Justice (/'). 
 By another Act the Lord Chancellor, or the Lords 
 Justices intrusted by the Queen's sign manual with the 
 care and commitment of the custody of the persons and 
 estates of persons found idiot, lunatic or of unsound 
 mind, are empowered to appoint a j)erson to transfer 
 
 (a) Stat. 29 Car. II. c. 3. See 
 ante, p. 49. 
 
 (b) See Kumcs v. Scipio, 1 Com. 
 356; Pickering \. Applehy, 1 Com. 
 354 ; 2 P. Wms. 308 ; Fawle v. 
 Gimn, 4 Bing. N. C. 445; Ilumhh 
 V. Mitchell, 11 A. & E. 205; 
 Knight v. Barber, 16 M. & W. 
 66. 
 
 (c) Stat. 33 & 34 Vict. c. 97, 
 Schedule, tit. Contract Note, ex- 
 plained by stat. 41 Vict. c. 15, 
 s. 26. 
 
 {d) Stat. 34 Vict. c. 4, s. 5. 
 
 \e) Stat. 11 Geo. IV. & 1 Will. 
 IV. c. C5, s. 32. 
 
 (/) Stat. 36 & 37 Vict. c. 66, 
 8. 34.
 
 OF I'KKSOXAL ANXriTIES, STOCKS AM) SIl Ain:s. 333 
 
 stock and receive and pay over dividends standing in 
 the name of or vested in any lunatic, idiot or person of 
 unsound mind beneficially entitled thereto, or standing 
 in the name of or vested in the committee of a lunatic 
 who may have died intestate, or himself become lunatic, 
 or may be out of the jurisdiction of or not amenable to 
 the process of the Court of Chancery, or if it be uncer- 
 tain whether such committee be living or dead, or if he 
 should neglect or refuse to transfer such stock and to 
 receive and pay over the dividends thereof {g) . And the 
 Lord Chancellor and Lords Justices intrusted as afore- 
 said are also empowered to appoint a person to transfer 
 stock standing in the name of or vested in any lunatic 
 residing out of England ; and also to receive and pay 
 over the dividends thereof to the curator of such lunatic 
 or otherwise as the Lord Chancellor or Lords Justices 
 intrusted as aforesaid shall think fit {h). The jurisdic- 
 tion in lunacy of the Lord Chancellor is not affected by 
 the Supreme Court of Judicature Acts, 1873 (<) and 
 1875 (y) ; and the latter Act provides (/t), that any 
 jurisdiction usually vested in the Lords Justices of 
 Appeal in Chancery, or either of them, in relation to 
 the persons or estates of idiots, lunatics and persons 
 of unsound mind, shall be exercised by such judge or 
 judges of the High Court of Justice or Court of 
 Appeal as may be intrusted by the sign manual of 
 her Majesty or her successors with the care and com- 
 mitment of the custody of such persons and estates ; 
 but each Lord Justice, so long as he remains a judge 
 of the Court of Appeal, retains his jurisdiction in 
 lunacy. By another Act it is provided, that, w^hen 
 stock shall be standing in the name of any infant or 
 person of imsound mind jointly with any person not 
 
 (g) Stat. 16 k 17 Vict. c. 70, (/) Stat. 3G & 37 Vict. c. 6G ; 
 
 s. 140. Hee s. 17. 
 
 {]>) Sect. 141. {j) Stat. 38 & 39 Vict. c. 77. 
 
 {k) Sect. 7.
 
 334 OF INCORPOREAL PERSONAL PROPERTY. 
 
 under any legal disability, such person may alone give 
 a power of attorney to receive the dividends (/). And 
 generally the land or stock of any lunatic, in possession, 
 reversion or expectancy, may be sold or mortgaged for 
 the payment of his debts, or for his maintenance and 
 otherwise for his benefit {i)i). 
 
 Distringas. When any person had an interest in stock standing 
 
 in the name of another, he was formerly enabled to 
 restrain the transfer of such stock, or, as it is said, to 
 pitf a ■'<fop upon if, by means of a writ of disfrinrja^i, 
 to be served upon the Bank of England ; but a more 
 simple process is now adopted, as will presently appear. 
 The writ of distringas was in strictness a proceeding 
 in a suit supposed to have been commenced by the 
 party obtaining it against the Bank and the legal 
 owner of the stock ; but in practice a suit was not 
 commenced, imless the right to stop the stock were 
 disputed (;/). This writ formerly issued Only out of the 
 equity side of the Court of Exchecj[uer ; but when the 
 equitable jmisdiction of that Coiu't was transferred to 
 the Court of Chancer}^ it was provided that a writ of 
 disfrijigt/s, in a prescribed form, should issue out of the 
 latter Court, the force and effect of which, and the 
 practice relating to the same, should be such as was 
 previously in force in the Court of Exchequer (o). 
 The writ commanded the sheriff to distmin the Bank 
 by their lands and chattels, so that they appeared in 
 Court to answer a bill of complaint lately exhibited 
 against them and other defendants 1)y the person ob- 
 
 (/) Stat. 8 & 9 Vict. c. 97, s. 3, {n) See Wilkinson on theFunds, 
 
 repealed by stat. 33 & 34 Vict. 235—252 ; Re Cross, 1 Drews'. & 
 
 c. 69, and re-enacted by stat. 33 Sm. 580. This vn.it might have 
 
 & 34 Vict. c. 71, s. 19. been applied to any stock. See 
 
 {m) Stat. 16 & 17 Vict. c. 70, Daniell's Chancery Practice, vol. 
 
 8. 116; 25 & 26 Vict. c. 86, ss. 2,' p. 1528, 4th ed. ; Seton on 
 
 12—14. Decrees, 284, 285, 4th ed. 
 
 (o) Stat. 5 Vict. c. 5, s. 5.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 335 
 
 t 
 
 taiuing the writ. And the Supreme Coiu't of Jiidica- 
 tiu-e Act, 1875 {p), provided {q) that any person claim- 
 ing to be interested in any stock transferable at the 
 Bank of England standing in the name of any other 
 person, might sue out a writ of distrimjas as theretofore ; 
 such writ to be issued out of any office of the High 
 Court in London where ^vrits of summons (r) were 
 issued. The object of the writ was stated in a notice, 
 which was served along with it, to be for the purpose of . 
 restraining any transfer of the stock in question until 
 the order of the Court were obtained. An appearance 
 was accordingly entered by the Bank, and the transfer 
 of the stock was thus delayed. When the distringas 
 was required to be removed, an order of the Court 
 might have been readily obtained for the dismissal of 
 the suj)posed suit. 
 
 The practice of issuing a writ of disfriiKjas was Writ of 
 abolished by the Eules of the Supreme Court, April, aboli^^d^ 
 1880(6'). These rules are now annulled; but their 
 provisions are, with some slight modifications, incorpo- 
 rated in the llules of the Supreme Comi, 1883. Under 
 the Rules of 1883 {t) no writ of distringas is to be issued 
 under the Act 5 Vict. c. 5, s. 5. But any person claim- 
 ing to be interested in any stock, shares, securities, or 
 money standing in the books of a company, whether 
 the Bank of England or any other public company, 
 and whether incorporated or not, may on making and 
 filing an affidavit in a given form, with a notice in a 
 given form annexed thereto, serve an oflice copy of the 
 affidavit and a duplicate notice on the company {a). 
 
 ip) Stat. 38 & 39 Vict. c. 77. (r) Ame, p. 112. 
 
 (<?) Order XLVI. rule 2, au- (s) Order XL VI. rules 21—30. 
 
 millod by the Rules of the Su- {t) Order XLVI. i-ule 2. 
 
 preme Court, 1 880, Order XLVI. («) Rules of the Supreme Court, 
 
 rule 21, aud the Rules of the 1883, Order XLVI. ndes 3, 4. 
 Supreme Com-t, 1883.
 
 336 
 
 OF INCORPOHEAL PERSONAL PROPERTY. 
 
 To tlie affidavit must be appended a note stating the 
 person on whose behalf it is filed, and to what address 
 notices, if any, for that person are to be sent {x). 
 And the service of the office copy of the affidavit 
 and of the duplicate of the filed notice, shall have 
 the same force and effect against the company as 
 a writ of distringas, duly issued under the Act 5 Vict. 
 0. 5, s. 5, would formerly have had against the Bank 
 of England (i/). The notice 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 an order 
 to be obtained by motion on notice or by petition 
 or by summons at chambers duly served by any other 
 person claiming to be interested in the stock, &c., 
 sought to be affected by the notice (s). And if, 
 whilst a notice so filed continues in force, the com- 
 pany on whom it is served receive from the person 
 in whose name the stock, &c., specified in the notice 
 is standing, or from some person acting on his behalf 
 or representing him, a request to permit the stock, &c., 
 to be transferred, or to pay the dividends thereon, the 
 company shall not, by force or in consequence of the 
 service or of any renewal of the notice, be authorized, 
 without the order of the Court or a judge, to refuse 
 to permit the transfer to be made or to withhold 
 the payment of the dividends for more than eight 
 days after the date of the request {a). It is sur- 
 prising that a course by which a cestui que trust of 
 stock may be so effectually protected from any frau- 
 dulent transfer by his trustee should not be more 
 frequently adopted. 
 
 {x) Rules of the Supreme Court, might be kept on foot by serving 
 
 1883, Order XL VI. rule 5. notice of renewal. 
 
 (y) lb. rules. Under the Rules (;) lb. rule 9. 
 
 of 1880, the notice remained in (a) lb. rule 10. See He Blaks- 
 
 force for five years only, but leifs Trusts, 23 Ch. D. 549.
 
 OF PEKSOXAL ANNUITIES, .STOfKS AND SHARKS. 337 
 
 Stock, being a kind of chose in action, could not for- stock may he 
 merly have been sold under a fieri facias issued in exe- 9''''J'"^c(l with 
 
 . „ . . ■ judg'ment 
 
 cution of a judgment against the owner (i). And, in debta. 
 fact, in the Acts by which stocks were created, it was 
 declared that they should not be taken in execution {c). 
 But by the Act for extending the remedies of creditors 
 against the property of debtors {d ) , it was provided that 
 any judge of one of the Superior Courts of common 
 law (e), on the application of any judgment creditor, 
 might order that any government stock of the debtor 
 standing in his own name, or in the name of any person 
 in trust for him, should stand charged with the payment 
 of the judgment debt and interest ; and such order 
 should 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; but no pro- 
 ceedings were to be taken to have the benefit of such 
 charge until after the expiration of six calendar months 
 from the date of such order (_/'). And by a subsequent 
 Act of Parliament {[/), this provision was declared to 
 extend to the interest of any judgment debtor, whether 
 in possession, remainder or reversion, and whether 
 vested or contingent, as well in such stock as in the 
 dividends or animal produce thereof, and also to stock 
 in which the debtor might be interested standing in the 
 name of the accountant-general of the Court of Chan- 
 cery (//). And in order to prevent any judgment debtor 
 
 {!>) Dundas V. JtHtcns, 1 Vcs. E. & B. 743 ; co)ttra, Bcacaii v. 
 
 jun. 198. Earl of Oxford, 6 Dc Gox, M. & 
 
 ((•) Bank of Emjlaiid v. Lann, G. 524, 52o, 532 ; Scott v. Lord 
 
 15 Ves. 577. Hastings, 4 Kay & J. 633, 638 ; 
 
 (d) Stat. 1 & 2 Vict. c. 110, Crow v. Robinson, L. K, 3 C. P. 
 
 B. 14. 264, 267 ; rickcring v, Ilfracomhe 
 
 {e) Miles v. I'rcsland, 4 Myl. & Railway Company, L. R., 3 C. P. 
 
 Cr. 431. 235, 251. 
 
 (/) See Watts v. Jcfferycs, 3 (y) Stat. 3 & 4 "Vict. c. 82, s. 1. 
 
 Mac. & Gord. 372 ; Watts v. For- See Uidkes v. Day, 10 Sim. 41. 
 
 ter, Q. B., 1 Jur., N. S. 133; 3 [h) See Warhurton v. Hill, Kny, 
 
 W.P.r. /.
 
 338 OF INCORPOREAL PERSONAL PROPERTY. 
 
 from disposing of the stock authorized to be charged, 
 an order miglit have been procured by the creditor, 
 in the first instance ex j^f^if'fc, restraining the Bank of 
 England from permitting a transfer of the stock until 
 the order should either be made absolute (that is, con- 
 firmed and continued) or discharged ; and no disposition 
 of the judgment debtor in the meantime was to be valid 
 or effectual as against the creditor. And the order 
 would have been made absolute if the debtor did not, 
 within a time mentioned in the order, show cause to the 
 contrary (/). The Rules of Court contained in the 
 schedule to the Judicature Act of 1875 (/.•) provided, 
 and the Rules of the Supreme Court, 1883, now pro- 
 vide (/), that an order charging stock or shares may be 
 made by any Divisional Court or by any judge, and 
 the proceedings for obtaining such order shall be such 
 as are directed, and the effect shall be such as is pro- 
 vided by the Acts above mentioned. 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 (ui). 
 
 Transmission The history of the law respecting the transmission 
 will. ^ of stock by will affords a curious instance of the enact- 
 ments 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 
 
 470 ; Halt/ v. J^arn/, L. E. , 3 Ch. Order XLVI. r. 1 of the Schedule. 
 Ap. 452, 456, 457. By stat. 35 {!) Order XLVI. r. 1. 
 
 & 36 Vict. e. 44, the duties of {»i) Churchill v. BtDil: of Eng 
 
 the accountant-general of the land, 11 Mee. & "Wels. 323 
 
 Court of Chancery are transferred Brldcad \. TTil/cins, 3 Hare, 235 
 
 to the paymaster-general. South Western Loan and DU-coun 
 
 [i) Stat. 1 & 2 Vict. c. 110, Co. v. liohcrtson, 8 Q. B. D. 17 
 
 s. 15. and gee Taylor v. Turnhidl, 4 H 
 
 (/•) Stat. 38 & 39 Vict. c. 77 ; & N. 495.
 
 OF I'ERSONAL ANNUITIKS, .sTOfKS AND SHARES. 339 
 
 person possessed of stock miglit devise the same by will 
 iu writing atteHtod by ttvo or more credible icitneases, but 
 that such devisee should receive no 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 de- 
 vise the stock should go to the executors or adminis- 
 trators (^0- The Court of Chancery however hold, 
 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 pa}'- 
 ment of debts, even though it should have been specially 
 bequeathed (o) ; and that the executor, having it in his 
 hands by virtue of his office of executor, was bound, 
 after pajTnent of debts, to dispose of it according to the 
 will of his testator, even although such will were un- 
 attested (p). For, previously to the Act for the amend- 
 ment of the laws with respect to wills (q), a will of 
 personal estate required no attestation. In effect, there- 
 fore, a person was enabled to ber^ueath his stock by a 
 will unattested. All ^^•ills, however, are now required 
 to be attested by two witnesses. And by a recent Act 
 of Parliament the provisions of the old Acts, which had 
 virtually been disregarded, were formally repealed ; and 
 it is now declared that the stock of a deceased person 
 may be transferred by his executors or administrators, 
 notwithstanding any specific bequest thereof ; but the 
 Bank are not to be required to allow of such transfer, 
 or of the receipt of any di^'idcnd on the stock, until the 
 probate of the will or the letters of administration shall 
 have been first left at the Bank for registration. And 
 the Bank may require all the executors who shall have 
 
 («) Stilt.' 1 Geo. I. Stat. 2, c. 19, {p) Blphy v. IVuteru-orth, 7 
 
 8. 12, and subsequent Acts. Vea. 440: Fraii/clin v. Haii/c of 
 
 (o) Bauk of England \. Moffat t, England, 1 Russ. 575, 589. 
 
 3 Bro. C. C. 260 ; Bank of Eng- (q) Stat. 7 Will. IV. & 1 Vict. 
 
 land V. Parsons, 5 Ves. 665 ; Bank c. 26. 
 of England V. Liinn, 15 Ves. 569. 
 
 z2
 
 340 
 
 OF I^■C()RP()RKAL I'ERSOXAL I'HOI'KIM'V. 
 
 proved the will to concur in tlie transfer {>•). And the 
 registry of specific bequests of stock is no longer re- 
 quired. 
 
 Shares. 
 
 The next kind of incorporeal personal property which 
 we shall mention are shares in joint stock companies. 
 Joint stock companies were formerly of two kinds, those 
 which were incorporate, or made into corporafioHS, and 
 those which were not so. 
 
 Corporations 
 sole and ag- 
 gregate. 
 
 Corporations are legal personages, always known 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 chamberlain of London ; or 
 corporations aggregate, composed of many persons act- 
 ing on all solemn occasions by the medium of their 
 eo)nmon seal (.v) ; and it is of such corporations that we 
 are now about to speak. Such corporations may be 
 created either by charter conferred by the queen's letters- 
 patent, or by Act of Parliament. And, till a few years 
 ago, all joint stock companies which had not obtained 
 this expensive sanction were in fact private partnerships 
 on an extended scale. In the present reign, however, 
 as we shall hereafter see, provision has been made for 
 the incorporation of all public joint stock companies (^j ; 
 but such companies as are incorporated by letters-patent 
 or special Act of Parliament still enjoy peculiar privi- 
 leges. These companies therefore first require notice. 
 
 Companies 
 incorporated 
 
 The nature and incidents of shares in the joint stock 
 
 {r) Stat. 8 & 9 Vict. c. 97, s. 1, 
 repealed by stat. 33 & 34 Vict. 
 c. 69, and re-enacted by stat. 33 
 & 34 Vict. c. 71, ss. 17, 23. 
 
 is) See Bac. Abr., tit. Corpo- 
 rations; 1 Black. Com. ch. 18. 
 
 (0 Stat. 7 & 8 Vict. c. 110; 
 partly repealed by stat. 20 & 21 
 Vict. c. 14, s. 23 ; 7 & 8 Vict, 
 c. 113, partly repealed by stat. 
 20 & 21 Vict. c. 49 ; aU now re- 
 pealed by the Companies Act, 
 1862, stat. 25 & 26 Vict. c. 89.
 
 OF PERSONAL ANNUITIKS, STOCKS AND SHARKS. 3il 
 
 of companies incorporated by letters-patent or Act of by charterer 
 Parliament have generally been determined by their re- *^ " 
 spective 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. In a few of 
 the older companies, of whicli the New River Company 
 is an instance (>/), the shares are real estate in the nature 
 of incorporeal hereditaments. For the future, however, 
 all the provisions contained in special Acts for the in- 
 corporation of joint stock companies will, as far as pos- 
 sible, be the same. For an Act of Parliament has been 
 passed " for consolidating in one Act certain provisions The Clauses 
 usually inserted in Acts with respect to the constitution j^^^^^ 
 of companies incorporated for carrying on imdertakings 
 of a public nature " (x). Other Acts have also been 
 passed for consolidating certain provisions usually in- 
 serted in Acts authorizing the taking of lands for under- 
 takings of a public natm-e (//) ; in Acts authorizing the 
 making of railways (z) ; in Acts for constructing or 
 regulating markets and fairs {a) ; in Acts authorizing 
 the making of gasworks for supplying towns with 
 gas (b) ; or of waterworks for supplying towns with 
 water (r) ; in Acts for the making and improving of 
 harbours, docks, and piers {d) ; in Acts for paving, drain- 
 
 (m) Drijbullcr v. Barthohmciv, 2 Vict. c. 114; 33 & 34 Vict. c. 19; 
 
 P. "Wnis. 127. and 34 & 35 Vict. c. 78 ; 36 & 37 
 
 (x) Stat. 8 & 9 Vict. c. 16; ex- Vict. cc. 48, 76; 37 & 38 Vict, 
 
 tended by stat. 26 & 27 Vict. cc. 40, 76 ; 38 & 39 Vict. c. 31. 
 c. 118 ; amended by stat. 32 & 33 {») Stat. 10 & 11 Vict. c. 14. 
 
 Vict. c. 48. (A) Stat. 10 & 11 Vict. c. 15 ; 
 
 (//) Stat. 8 & 9 Vict. c. 18 ; amended by stat. 34 & 35 Vict, 
 
 extended by stat. 23 & 24 Vict. c. 41. See also stats. 33 & 34 
 
 c. 106. Vict. c. 70; 36 & 37 Vict. c. 89. 
 
 {£) Stat. 8 & 9 Vict. c. 20; (r) Stat. 10 & 11 Vict. c. 17 ; 
 
 extended by stat. 26 & 27 Vict. extended by stat. 26 & 27 Vict. 
 
 c. 92. See also stats. 27 & 28 c. 93. See also stats. 33 & 34 
 
 Vict. c. 120 ; 27 & 28 Vict. c. 121 ; Vict. c. 70 ; 36 & 37 Vict. c. 89. 
 30 & 31 Vict. c. 127; 32 & 33 {d) Stat. 10 & 11 Vict. c. 27.
 
 342 OK INCOKl'OllKAJ, I'KHSONAI. I'KOl'ERTV. 
 
 ing, cleansing, lighting and improving towns (e) ; and 
 in Acts authorizing the making of cemeteries (/). In 
 each of these Acts enactments are made with respect to 
 various matters usually contained in Acts of incorpora- 
 tion for the above purposes ; and it is provided that the 
 clauses and pro^'isiolls of these general Acts, save so far 
 as they shall he expressly varied or excepted by any 
 special Act, shall apply to every undertaking which 
 sliall thereafter be authorized hy Act of ParHament for 
 any of the purposes above referred to. A uniformity 
 is thus given to the constitution of such companies, and 
 the length of the Acts of Parliament required to esta- 
 blish them has been greatly diminished. A short title, 
 for the convenience of reference, is given to each Act. 
 The Act first mentioned is called " The Companies 
 Clauses Consolidation Act, 1845 "(^) ; the Acts amend- 
 ing it are called "The Companies Clauses Act, 1863" {//) ; 
 and " The Companies Clauses Act, 1869 " (/) ; and all 
 the others have similar titles. An Act called " The 
 Tramways Act, 1870," has been passed to facilitate the 
 construction and to regulate the working of tram- 
 ways (/.■). 
 
 Companies The Companies Clauses Consolidation Act contains 
 
 soiidation provisions with respect to the distribution of the capital 
 Act, 1845. of fj^e company into shares, which are to be personal 
 estate, and transmissible as such (/) ; with respect to 
 the transfer of shares, which must be by deed duly 
 stamped, in which the consideration shall be truly 
 stated (ni), and which cannot take place until the trans- 
 feror shall have paid all calls for the time being due on 
 every share held by him {it) ; with respect to the trans- 
 
 (e) Stat. 10 & 11 Vict. c. 34. (/.•) Stat. 33 k 34 Vict. c. 78. 
 
 (/) Stat. 10 & 11 Vict. c. G5. ( /) Stat. 8 & 9 Vict. c. 16, 
 
 iff) Stat. 8 & 9 Vict. c. 16, s. 4. s. 7. 
 
 (A) Stat. 26 & 27 Vict. c. 118. («) Sect. 14. 
 
 {i) Stat. 32 & 33 Vict. c. 48. {») Sect. 16; HaU v. Mrfollc
 
 OF PERSONAl- AX.NUITIKS, STOCKS AM) SHARKS. 
 
 343 
 
 mission of shares by will, intestacj', marriage of a female, 
 &c. (o) ; with respect to the payment of calls (p), which 
 may be made payable by instalments (q), and the for- 
 feitm-e of shares for non-payment of calls (r) ; with re- 
 spect to the remedies of creditors of the company against 
 the shareholders (.s), which are confined 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 sulHcient property or effects of the company 
 whereon to levy execution [f) ; with respect to the bor- 
 rowing of money b}^ the company (u), the conversion of 
 the borrowed money into capital (.r), the consolidation 
 of the shares into stock (//), general meetings {z), the 
 appointment and rotation of directors (a), the powers {b), 
 proceedings and liabilities of the du'ectors (c), the ap- 
 pointment and duties of auditors {(/ ) , the accountability 
 of the officers of the company {c), the keeping of ac- 
 counts (/'), the making of dividends (g), and of bye- 
 laws (//), the settlement of disputes by arbitration (/), 
 
 Estuary Compau)/, Q. B., 16 Jur. 
 149 ; Megiua v. Loudonderrtj and 
 Colcva'me Jiailicai/ Cuinpani/, 13 Q. 
 B. 998 ; ][i(hbcrst.y v. Manchester, 
 Sheffield and Lincolnshire Itaihvay 
 Company, 36 L. J., N. S., Q. B. 
 198; LawRop., 2 Q. B. 471. 
 
 (o) Sects. 18, 19. 
 
 (/>) Sects. 21—28 ; sec Wolver- 
 hampton New IVatericorks Com- 
 pany V. Uawkcsford, 6 C. B., N. 
 S. 336. 
 
 {q) Amhergatc, S;C. Railway 
 Company v. Norcliffc, 6 Ex. Rep. 
 629. 
 
 (>•) Sects. 29—35. 
 
 («) Sect. 36. 
 
 (0 JDcvcreiix v. Kilkenny, S;c. 
 Railway Company, 5 Ex. Rep. 
 834 ; Ilitchins v. Kilkenny, t^-c. 
 Railway Company, 10 C. B. 160 ; 
 
 Xixon V. Brownlow, 3 II. <S: N. 
 686. 
 
 [tc) Stat. 8 Sc 9 Vict. u. 16, 88. 
 38—55. 
 
 {x) Sects. 56—60. 
 
 (y) Sects. 61 — 64. 
 
 {z) Sects. 66— 80. 
 
 {a) Sects. 81—89. 
 
 (h) Sects. 90, 91. 
 
 (r) Sects. 92—100; TFilson v. 
 IFcst Hartlepool Harbour and Rail- 
 way Company, Lds. Js., 11 Jur., 
 N. S. 124 ; 2 De Gex, J. & S, 
 475. 
 
 [d) Sects. 101—108. 
 
 {e) Sects. 109—114. 
 
 (/) Sects. 115—119. 
 
 [g) Sects. 120—123. 
 
 \h) Sects. 124—127. 
 
 (0 Sects. 128—134.
 
 344 
 
 OV IXCOKl'OUEAL PEUSONAL PROPERTY, 
 
 the giving of notices (/.), the recovery of damages and 
 penalties (/), and appeals with respect to such damages 
 or penalties to the quarter sessions (m) ; and, lastly, 
 with respect to affording access to the special Act by all 
 parties interested {ii). The provisions of the other Acts 
 are not of a nature to require enumeration. 
 
 Inconvenience 
 of unincor- 
 porated joint 
 stock com- 
 panies. 
 
 Letters- 
 patent. 
 
 Joint stock companies which had not obtained letters- 
 patent or special Acts of incorporation were formerly 
 subjected to very great inconvenience whenever they 
 had occasion to take legal proceedings against any 
 person who happened to be a shareholder. And every 
 shareholder in such companies was subject to the like 
 inconvenience whenever he had occasion to proceed 
 against the company. For such a company, however 
 extensive, was in law merely a partnership ; and a 
 partner who owes money to the partnership of which 
 he is a member, evidently owes a portion of it to him- 
 self according to his interest in the joint stock; and in 
 like manner a partner who is a creditor claims part of 
 his demand against himself. In each case, therefore, 
 an account must be settled before the exact debt or 
 credit of the partner can be ascertained (o). In order 
 to obviate the difBculties which thus arose, many joint 
 stock companies obtained special Acts of Parliament, 
 enabling them to sue and be sued in the name of some 
 officer. And in the year 1837 an Act of Parhament {p) 
 was passed empowering the crown to grant, by letters- 
 patent, charters to companies for any trading or other 
 purposes whatsoever, which, without incorporating such 
 companies, would empower them to sue and be sued in 
 the name of some officer appointed and registered for the 
 
 [k) Sects. 135-139. 
 (/) Sects. 142—158. 
 {m) Sects. 159, 160. 
 (h) Sects. 161, 162. 
 (o) See Richardson v. 
 
 Bank of 
 
 England, 4 My. & Cr. 165. 
 
 {p) Stat. 7 WiU. IV. & 1 Vict. 
 0. 72, repealing a former statute 
 for a similar purpose, 4 & 6 
 Will. IV. c. 94.
 
 OF rKllSONAl. ANN I IT IKS, STOCKS AND SHAKES. 345 
 
 purpose. This Act is still in force, and it contains a 
 valuable provision, empowering the crown to limit, by 
 the letters-patent, the liability of the individual members 
 of the company for its engagements to a given extent per 
 share (ry). Banking companies, wdiose shareholders are Banking 
 generally their customers, w^ere peculiarly subject to °^P^'^^*^'^' 
 the inconvenience above referred to in suing and being 
 sued. Accordingly by modern statutes (r), all such 
 banking companies as consisted of more than six mem- 
 bers, were allowed to appoint some public officer who 
 must sue and be sued on behalf of the company (s). 
 More recently, however, two Acts of Parliament were 
 passed, the one incorporating public joint stock com- 
 panies, the other for providing for the incorporation 
 of joint stock banks. Each of these Acts requires some 
 notice. 
 
 The first Act was intituled " An Act for the Regis- Joint Stock 
 tration, Incorporation and Regulation of Joint Stock Re^StratTon 
 Companies " (/). This Act applied to every joint stock A-ct of 1844. 
 company established for any commercial purpose, or for 
 any purpose of profit (ii), or for the purpose of in- 
 sm-ance (except banking companies, schools and scientific 
 and literary institutions, and friendly, loan and benefit 
 building societies duly certified and enrolled under the 
 statutes in force respecting such societies (x) ) ; and 
 the term " joint stock company " comprehended every 
 partnership whereof the capital was di^'ided or agreed 
 to be divided into shares, and so as to be transferable 
 
 (y) Stat. 7 Will. IV. & 1 Vict. Mcc. & Wcls. 711. 
 
 c. 73, 8. 4. (/) Stat. 7 & 8 Vict. c. 110, 
 
 (>•) Stats. 7 Geo. IV. c. 4G, s. 9 amoudeil by stat. 10 & 11 Vict. 
 
 et seq. ; 1 & 2 Vict. c. 96 ; ex- c. 78. 
 
 tended, 3 & 4 Vict. c. Ill ; made («<) See The Queen v. Whit- 
 
 pcrpetual, 5 k 6 Vict. c. 8.5; 27 marsh, 15 Q. B. 600; Bear v. 
 
 & 28 Vict. c. 32. Bromley, 21 L. Jour., Q. B. 354 ; 
 
 («) Chapman v. Milvain, 5 Ex. 18 Q. B. 271. 
 
 Rep. 61 ; Steward v. Greaves, 10 [x) Seepost.
 
 346 
 
 OF IXCORI'OREAL I'KRSONAL rKOl'KRTY. 
 
 Registry 
 office. 
 
 without the express consent of all the copartners ; and 
 also every insurance company, whether of lives, ships, 
 or against fire or storm ; and every company for grant- 
 ing or purchasing annuities on lives ; and every friendly 
 society insuring to an amount exceeding 200/. upon one 
 life or for any one person ; and also exery partnership 
 which at its formation, or by subsequent admission 
 (except any admission consequent on devolution or 
 other act of law), should consist of more than twenty- 
 five members. But the Act did not apply to companies 
 incorporated by statute or charter, nor to companies 
 authorized to sue and be sued in the name of some 
 Nowrepealed. officer or person (//). This Act, however, has since been 
 repealed (~), It provided for the establishment of a 
 registry office, in which the name and business of every 
 projected company, together with the names, occupa- 
 tions and places of business and residence of the pro- 
 moters of the company, were required to be registered 
 before they could proceed to make public, whether by 
 way of prospectus, handbill or advertisement, any in- 
 tention or proposal to form the company {a). Further 
 particulars were also to be registered as they should be 
 decided on from time to time {b). This registration, 
 however, only enabled the company to act provisionally, 
 and it was therefore termed jyrofiHwncd registration. 
 And before the company coidd act otherwise than pro- 
 visionally, it was required to obtain a certificate of 
 complete registration. This certificate could only be 
 obtained on production of a deed of settlement of the 
 company, according to the form set forth in the Act, 
 signed by at least one-fourth in number of the persons 
 who at the date of the deed had become subscribers, and 
 
 Provisional 
 registration . 
 
 Complete 
 registration 
 
 (y) Sect. 2. 
 
 (s) Stat. 25 & 26 Vict. c. 89. 
 
 («) Stat. 7 & 8 Vict. c. 110, s. 4. 
 See also stat. 10 & 11 Vict. c. 78, 
 s. 7 ; Abbott V. Rogers, C. P., 1 
 
 Jur., N. S. 804 ; 16 C. B. 277. 
 
 {b) Stat. 7 & 8 Vict. c. 110, 
 s. 4; 10 & 11 Vict. 0. 78, ss. 4, 
 5, 6.
 
 OF I'EKSON'AI, ANMriTlKS, SIOCKS ANU SHARKS. 347 
 
 who should liokl at least one-fourth of the maximum 
 number of shares in the capital of the company (r). 
 This deed was required to be certified by two directors 
 of the company in a given form, and along with it was 
 to bo produced a complete abstract or index of the deed, 
 together with a copy of it for registration. Provision 
 was also made for the registration, half-yearly or oftener, 
 of all transfers of shares, and of changes in the names, 
 of the shareholders {d), and for an annual return of the 
 name and business of every company (e). On complete Incorpora- 
 registration being certified the company become iiicof- 
 poraf (■(/{/) as from the date of the certificate, by the 
 name of the company as set forth in the deed of settle- 
 ment, with power to have a common seal, but on which 
 was to be inscribed the name of the company, and with 
 other powers necessary to the conduct of their affairs {g), 
 including a power to hold lands on obtaining a licence 
 for that purpose from the Board of Trade {//). Provi- Existiug- 
 sion was also made for the registry of joint stock com- ^°™r''^"^^^- 
 panics then existing, and for the alteration of their 
 deeds of settlement in order to comply with the provi- 
 sions of the Act (/). The transfer of shares was required Transfer of 
 to be efTected by deed in a given form, to be duly ^ ^^^^' 
 stamped, and in Avhich the full amount of the pecuniary 
 consideration for the sale was to be truly expressed (A) . 
 But no sale or mortgage of any share was valid until 
 the company had obtained a certificate of complete re- 
 gistration and the subscriber had been duly registered 
 as a shareholder in the Registry Ofiice (/) ; and no 
 transfer could be made if the transferor should not then 
 have paid up the full amount due to the company on 
 
 (c) Stat. 7 & 8 Vict. c. 110, s. 'lo. 
 
 8. 7. (/') Stat. 10 & 11 Vict. c. 78, 
 
 {d) Sects. 11—13. ss. 1, 2, 3. 
 
 {e) Sect. 14. (0 Sects. .58, 59. 
 
 (/) Jiamven Iron Company v. (Z) Sect. 54. 
 
 Harnett, 8 C. B. 40G. (/) Sect. 26 ; Ex parte Neihon, 
 
 is) Stat. 7 & 8 Vict. c. 110, 3 De Gex, M. & G. 556.
 
 348 
 
 OF INCORPOREAL PERSONAL PROl'ERTY. 
 
 Liability of 
 shareholders. 
 
 every sliare held by him, unless there were a provision 
 to the contrary in the deed of settlement (^>?) . Share- 
 holders in these companies were liable to the creditors 
 of the company, if such creditors had used due diligence 
 to obtain satisfaction by execution against the property 
 of the company ; but after the expiration of three 3"ears 
 next after any person should have ceased to be a share- 
 holder, his liability ceased {ii) . 
 
 Banking com- The Act which provided for the incorporation of bank- 
 pames. ^^^ companies was intituled " An Act to regulate Joint 
 
 KepealofAct. Stock Banks in England "(o). This Act has now been 
 repealed (p) . The incorporation effected under the pro- 
 visions of this Act was by letters-patent, obtained, on 
 petition, from the crown. The petition was referred to 
 the Board of Trade, on whose report a charter was 
 granted to the company (q) for a term not exceeding 
 twenty years (r). Other provisions were also made for 
 the registration of the company, the transfer of shares, 
 the liability of shareholders, and other matters which it 
 is now unnecessary to state. 
 
 Objects of 
 these Acts. 
 
 The main object of the two statutes above referred to 
 was evidently to give publicity to the names of the real 
 promoters and shareholders of joint stock companies, 
 so that the public miglit know with Avhom they were 
 dealing, and that those who reaped the benefit of such 
 undertakings might also bear their proper share of the 
 risk. Another object was to recognize, as legal per- 
 sonages, bodies which before had a legal existence, but 
 had no convenient means of acting or of being acted 
 on. In the same spirit another Act of Parliament was 
 
 (;«) Sect. 5-1. 
 
 («) Sects. 66 — 68 ; GreenwoocVs 
 ease, 3 De Gex, M. & G. 459, 
 478 ; S. C. 18 Jur. 387. 
 
 (o) Stat. 7 & 8 Vict. c. 113. 
 
 {p) Stat. 25 & 26 Vict. c. 89. 
 
 [q) Stat. 7 & 8 Vict. c. 113, 
 
 3. 
 
 (>•) Sect. 6.
 
 or PEUSOXAI- ANXllTli;;>, .STOCKS AXl) SHARKS. 34'J 
 
 passed in tho same session, " for facilitating the winding- Bankruptcy 
 up the affairs of joint stock companies unahle to meet eompanics°'^ 
 their pecuniary engagements" (s). By this Act all in- 
 corporated or privileged com})anies for any commercial 
 or trading purposes, including banking companies {f), 
 and also all joint stock companies within the definition 
 contained in the Act for their incorporation («), were 
 made liable to bankruptcy in the same manner as ' 
 private individuals ; but the bankruj)tcy of the company 
 was not to be construed to be the bankruptcy of any 
 member of the company in his individual capacity (,r). 
 Tins Act, however, was almost entirely superseded by the Winding-up 
 "Joint Stock Companies Winding-up Act, 1848" (//) 
 as amended by the " Joint Stock Companies Winding- 
 up Amendment Act, 1849 " (~), under which an official 
 manager was appointed, and a list of contributories made 
 out, on whom calls were made from time to time for 
 payment of the debts and liabilities of the company. 
 These Acts again did not apply to companies registered 
 under the "Joint Stock Companies Act, 1856" [a), by 
 which Act, as several times amended (h), joint stock 
 companies were regulated, until the passing of the 
 "Companies Act, 18G2 " (r). This Act repealed and 
 consolidated all the former Acts relating to joint stock 
 companies. Sect. 199 of the Companies Act, 1862 {d) Winding-up 
 provides that any partnership, association or company, t red"coni^'^" 
 except railway companies incorporated by Act of Parlia- pauies." 
 
 (i) Stat. 7 & 8 Vict. c. Ill, stat. 13 & U Vict. c. 83. 
 amended by stat. 20 & 21 Vict. {a) Stat. 19 & 20 Vict. c. 47, 
 
 c. 78. s. 108. 
 
 (<) Stat. 7 & 8 Vict, c 113, (i) Stats. 20 & 21 Vict. c. 14 ; 
 
 8. 48. 20 & 21 Vict. c. 49 ; 21 & 22 Vict. 
 
 («) Stat. 7 & 8 Vict. c. 110, c. GO; 21 & 22 Vict. c. 91. 
 8. 2 ; ante, p. 34.5. (c) Stat. 25 & 26 Vict. c. 89 ; 
 
 (.c) Stat. 7 & 8 Vict. c. Ill, s. 2. amended by stats. 30 & 31 Vict. 
 
 (y) Stat. 11 & 12 Vict. c. 4.5. c. 131 ; 40 & 41 Vict. c. 26 ; 42 & 
 
 (r) Stat. 12 & 13 Vict. c. 108, 43 Vict. c. 76, and 43 Vict. c. 19. 
 amended by stat. 20 & 21 Vict. {d) Stat. 2-5 & 26 Vict. c. 89. 
 
 c. 78 ; and see a.s to Railway."*,
 
 350 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 
 ment, eonsistiug of more than seven members, and not 
 registered nnder that Act, and thereinafter inchided 
 under the term innrf/i.sfrrrd conijxDi//, may be wound up 
 under and in acoordance with the provisions of that 
 Act {(') ; but that no lonrf/i-sford roijipaiii/ shall be wound 
 up under that Act voluntarily or subject to the super- 
 vision of the Court (,/). The Bankruptcy Act, 1883, 
 enacts {(/) that a receiving order {/t) shall not be made 
 against any corporation, or against any partnership or 
 association, or company registered under the Companies 
 Act, 1862. 
 
 The Limited 
 Liability Act, 
 1855. 
 
 An Act of Parliament was passed in 1855 for limiting 
 the liability of members of certain joint stock com- 
 panies (l). Under this Act any joint stock company to 
 be formed under the Act 7 & 8 Yict. c. 110, other than 
 an assurance company, with a capital to be divided into 
 shares of a nominal value of not less than 10/. each, 
 might obtain a certificate of complete registration with 
 limited liability, upon complying with certain condi- 
 tions. With reference to this Act it was remarked in 
 the third edition of the present work (/«•), that it seems 
 that all that can now be expected of an Act of Parlia- 
 
 {e) See lie IVeij and ^int» Junc- 
 tion Caned Company, L. E., 4 Eq. 
 197; Re Family Endowment So- 
 ciety, L. R., 5 Ch. 118 ; He Brad- 
 ford Navigation Company, L. R., 
 10 Eq. 331 ; He Bank of London 
 and National Provincial Insurance 
 Association, L. R., G Ch. 421 ; 
 Re Exmorith BocJcs Company, L. R., 
 17 Eq. 181 ; Coop v. Booth, 12 
 Ch. D. 679. 
 
 (/) Acompany registered under 
 the Joint Stock Companies Act 
 of 1844 (see ante, p. 345), may 
 be wound up under the above 
 section ; Bowes v. Hope, ^-c. So- 
 ciety, 11 H. L. C. 389. But com- 
 
 panies registered under the Joint 
 Stock Companies Acts of IB'jC 
 and 1857, are placed upon the 
 same footing, for the purposes of 
 winding-up, as companies regis- 
 tered under the Comjianies Act, 
 1862 ; see stat. 25 & 26 Vict, 
 c. 89, ss. 175, 176 ; Re Torquay 
 Bath Company, 32 Beav. 581 ; 
 Re London India-rubber Company, 
 L.R., 1 Ch. 329; and see below. 
 
 {g) Stat. 46 & 47 Vict. c. 52 ; 
 stat. 32 & 33 Vict. c. 71, s. 5, 
 was to the same effect. 
 
 {h) See ante, pp. 210, 212. 
 
 (/) Stat. 18 & 19 Vict. c. 133. 
 
 [k) Pages 182, 183.
 
 OF PERSONAL AXNIITIES, STOCKS AXl) SHARES, , 351 
 
 ment is to introduce a principle to be worked out by 
 subsequent amendments ; and that it was to be hoped 
 that the principle of limited liability then introduced 
 might by some future Act be botli more widely extended 
 and more accurately applied. This was afterwards done 
 by the Joint Stock Companies Acts, 1850 (/) and 
 1857 {)ii), and the Joint Stock Banking Companies 
 Act, 1857 (/('), as amended l)y subsequent Acts (o), all of 
 which are now repealed and consolidated by the Com- 
 panies Act, 18G2 {])), as amended by the Companies 
 Acts, 18G7, 1877, 1879, 1880 and 1883 (q). 
 
 Vnder these Acts seven or more persons associated for Companies 
 any lawful purpose may, by subscribing their names to .^^^ i.si;;." 
 a memorandmn of association, and otherwise complying 
 with the requisitions of the Acts in respect of registra- 
 tion, form an incorporated company, with or without 
 limited liability (r). And any company registered as an Companies 
 imlimited company may now register as a limited com- ^ ' ' '"'" 
 pany, subject to the provisions of the Companies Act, 
 1879. But a bank of issue registered as a limited Bank issuing 
 company, either before or after the passing of tliat Act, 
 shall not be entitled to limited liability in respect of 
 its notes ; and the members thereof shall continue 
 liable in respect of its notes in the same manner as if 
 it had been registered as an uidimited company ; but 
 iu case the general assets of the company are, in the 
 event of the company being wound up, insufficient to 
 satisfy the claims of both the note holders and the 
 general creditors, then the members, after satisfying 
 the remaining demands of the note holders, shall be 
 
 (/) Stat. 19 & 20 Viot. c. 17. (rj) Stats. 30 & 31 Vict. c. 131 ; 
 
 (w) Stat. 20 & 21 Vict. c. 14. -10 k 41 Vict. c. 26 ; 42 c'c 43 Vict. 
 
 («) Stat. 20 & 21 Vict. c. 49. c. 70 ; 43 Vict. c. 19 ; and 46 i" 47 
 
 (o) Stats. 20 & 21 Vict. c. 80 ; Vict. cc. 28, 30. 
 
 21 & 22 Vict. 0. 60; 21 & 22 Vict. (/•) Stat. 25 & 2G Vict. c. 89, 
 
 c. 91. s. G. 
 
 (p) Stat. 2.5 i: 26 Vict. c. 89.
 
 352 OF INCORPOREAL PERSONAL PROPERTY. 
 
 liable to coutribute towards payment of the debts of the 
 general creditors a sum equal to the amount received 
 by the note holders out of the general assets of the 
 company. For the purposes of this section the ex- 
 pression " the general assets of the company " means 
 the funds available for payment of the general creditor 
 as well as the note holder. And it shall be lawful for 
 any bank of issue registered as a limited company to 
 make a statement on its notes to the effect that the 
 limited liability does not extend to its notes, and that 
 the members of the company continue liable in respect 
 of its notes in the same manner as if it had been 
 registered as an unlimited company (-s). Not more 
 than ten persons may carry on the business of banking 
 as partners, unless they are registered under these Acts, 
 or are formed in pursuance of some other Act of Parlia- 
 ment or of letters-patent ; and no partnership consisting 
 of more than twenty persons can now be formed for the 
 purpose of carrying on any other business that has for 
 its object the acquisition of gain by the partnership or 
 by the individual members thereof [t), unless it be 
 registered as a company under these Acts or be formed 
 in pursuance of some other Act of Parliament, or of 
 letters-patent, or be a company engaged in working 
 mines within and subject to the jurisdiction of the 
 Liability may Stannaries [u). The liability of the members of a com- 
 pany formed under these Acts may, according to the 
 memorandum of association, be limited either to the 
 amount, if any, unpaid on the shares respectively held 
 by them, or to such amount as the members may respec- 
 tively undertake by the memorandum of association to 
 contribute to the assets of the company in the event of 
 
 (s) Stat. -42 & 43 Vict. c. 76, 20 Ch. D. 137; Jenniugs\.Ham- 
 
 ss. 4—6. mond, 9 Q. B. D. 225 ; Shaw v. 
 
 {t) See Smith v. Anderson, 15 Benson, 11 Q. B. D. 563. 
 
 Ch.Ji. 2^1 ; Re Padstoiv Total Loss (u) Stat. 25 & 26 Vict. c. 89, 
 
 a7id Collision Assurance Association, s. 4.
 
 OF PERSONAL ANXmiKS, STOfKS AND SHAKES. 353 
 
 its being wound up (x). In the former case the com- 
 pany is said to be limited by shares ; and in the latter, 
 to be limited by guarantee. And the Companies Act, Company 
 1867, now provides, that the liability of the directors or ™irg(.tors\'ith 
 managers, or managing director of a limited company, unlimited 
 may, if so provided by the memorandum of association ^ ' ^ ^* 
 or fixed by special resolution, be unlimited (//) . 
 
 The memorandum of association of a company limited Memorandum 
 by shares must contain the following things : — °f commny ° 
 
 1 . The name of the company with the addition of limited by 
 
 the word " limited," as the last word of such 
 name. 
 
 2. The part of the United Kingdom in which the 
 
 registered office of the company is proposed to 
 be situate. 
 
 3. The objects for which the company is to be esta- 
 
 blished. 
 
 4. A declaration that the liability of the members is 
 
 limited. 
 
 5. The amount of capital with which the company 
 
 proposes to be registered, divided into shares of 
 a certain fixed amount ; subject to the following 
 regulations : — 
 (1.) Thai no subscriber shall take less than one 
 
 share. 
 (2.) That each subscriber of the memorandum of 
 association shall write opposite to his name 
 the number of shares he takes {z). 
 
 When the company is limited by guarantee, its Memorandum 
 memorandum of association must contain the first three ^^ company^ 
 of the above-mentioned requisites; and (4), a declara- Hinited by 
 tion, that each member undertakes to contribute to the 
 
 {x) Stat. 25 & 26 Vict. c. 89, ss. 4—8. 
 8. 7. {z) Stat. 2.5 & 2G Vict. c. 89, 
 
 (y) Stat. 30 & 31 Vict. c. 131, s. 8. 
 
 w.r.r. A A
 
 351 
 
 OF INCORTOllEAI, T>1'.KS;0XAI, rUOrKKTY, 
 
 Memorandum 
 of association 
 of unlimited, 
 company. 
 
 assets of the company, in the event of the same Leiug 
 wound up during the time that he is a member, or 
 within one year afterwards, for payment of the debts 
 and liabihties of the company contracted before the 
 time at which he ceases to be a member, and of the 
 costs, charges and expenses of winding-up the com- 
 pany, and for the adjustment of the rights of the 
 coutributories amongst tliemselves, such amount as may 
 be required, not exceeding a specified amount {a) . 
 
 If no limit be placed on the liability of the members 
 the company is called an unlimited company, and its 
 memorandum of association must contain only the fol- 
 lowing things : — 
 
 1. The name of the company. 
 
 2. The part of the United Kingdom in which the 
 
 registered office of the company is proposed to 
 be situate. 
 '3. The objects for which the company is to be 
 established (^). 
 
 Effect of The memorandum of association must bear the same 
 
 memorandum .„ . , i • i i i 
 
 of association. Stamp as II it Were a deed, and must bo f-igned by each 
 subscriber in the presence of and be attested by one 
 witness at the least. When registered, it binds the 
 company and the members thereof to the same extent 
 as if each member had subscribed his name and affixed 
 his seal thereto, and there were contained in the memo- 
 randum a covenant on the part of himself, his heirs, 
 executors and administrators, to observe all the con- 
 ditions of such memorandum, subject to the provisions 
 
 No alteration of the Act (c) . No alteration can be made by any com- 
 pany in the conditions contained in its memorandmn 
 
 Exception. of association : except that a company limited by shares 
 may increase its capital by the issue of new shares of 
 
 («) Sect. 9. 
 
 {/>) Sect. 10. 
 
 {(') Sect. 11.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 355 
 
 suc'li amount as it thinks expedient, or may consolidate 
 
 and divide its capital into shares of larger amount than 
 
 its existing shares, or convert its paid-up shares into 
 
 stock {(/) ; and except that any company may, with the 
 
 sanction of a special resolution of the company as 
 
 after mentioned, and with the approval of the Board of 
 
 Trade, change its name ; but such change will not affect Name may be 
 
 any of the rights or obligations of the company (c). ^ '^""'^ 
 
 And the Companies Act, 18G7, now empowers any com- Tower to 
 
 l)any limited by sliares to modify by special resolution rediKse"^ 
 
 the conditions of its memorandum of association, so as capital. 
 
 to reduce its capital, provided the sanction of the Court 
 
 be obtained (/'). The same Act also empowers any com- Subdivision of 
 
 pany limited by shares to divide its capital or any part 
 
 thereof into shares of a smaller amount than originally 
 
 fixed by its memorandum of association ; provided that 
 
 the proportion between the amount which is paid, and 
 
 the amount (if any) which is unpaid, on each share of 
 
 reduced amount, shall be the same as it was in the case 
 
 of the existing share or shares from which the share of 
 
 reduced amount is derived (//). The Companies Act, 
 
 1877, extends the power of reducing the capital of a 
 
 company to paid-up capital, and otherwise amends the 
 
 ])rovisions of the Act of 18G7 (//). And the Companies 
 
 Act, LS80, still further extends the powers of reducing 
 
 the paid-up capital of a company (/). 
 
 The memorandum of association may, in the case of 
 a company limited by shares, and must in the case of a 
 compau}' h'mited by guarantee or unlimiied, be accom- 
 panied, M'heii registered, by articles of association signed Articles of 
 
 ■1 ,1 1 -1 i ii J r> • !• associatiou. 
 
 by the subscribers to the memorandum oi association, 
 and prescribing such regulations for the company as the 
 
 {d) Sect. 12. Tube Co., 23 Ch. D. 542. 
 
 (e) Sect. 13. (?) Sect. 21. 
 
 (/) Stat. 30 & 31 Vict. c. 131, (/() Stat. 40 & 41 Vict. c. 26. 
 
 88. 9—20. See Ec riaskynanton (i) Stat. 43 Vict. c. 19. 
 
 A A 2
 
 356 
 
 OF INCORPOllIOAL PERSONAL PHOPKRTV. 
 
 subscribers shall deem expedient. These articles must 
 be expressed iu separate paragraphs numbered arith- 
 metically. The Act contains a Table, marked A, in the 
 first schedule thereto, of provisions, all or any of which 
 may be adopted in the articles of association {k). The 
 regulations contained in this Table will, if not excluded 
 or modified by the articles, be deemed, so far as they 
 are applicable, to be the regulations of every company 
 limited by shares (/). The articles of association must 
 be printed and stamped as if they were contained in 
 a deed, and must be signed and attested in the same 
 manner as the memorandum of association ; and when 
 registered, they bind the company and the members 
 Eegistration. thereof to the same extent (ui). The memorandum and 
 articles, if any, are to be registered by the registrar of 
 joiut stock companies (;/) ; and thereupon the company 
 is incorporated, with power to hold lands ; and a cer- 
 tificate of the incorporation of any company given by 
 the registrar shall be conclusive evidence that all the 
 requisitions of the Act in respect of registration have 
 been complied with (o). No company formed for the 
 purpose of promoting art, science, religion, charity, or 
 any other like object, not involving the acquisition of 
 gain by the company, or by the individual members 
 thereof, shall, without the sanction of the Board of 
 Trade, hold more than two acres of land ; but the 
 Board of Trade may, by licence under the hand of one 
 of their principal or assistant secretaries, empower 
 any such company to hold lands in such quantity and 
 subject to such conditions as they think fit (p). All 
 shares are to be personal estate (q). Every company is 
 required to keep a register of its members (r) ; and every 
 
 Company in- 
 corporated. 
 
 Shares per- 
 sonal estate 
 
 Register of 
 members. 
 
 [k) Stat. 25 & 26 Vict. c. 
 
 14. 
 
 (/) Sect. 15. 
 
 {m) Sect. 16. 
 
 («) Sect. 17. 
 
 89, 
 
 (o) Sect. 18. 
 (p) Sect. 21. 
 {q} Sect. 22. 
 (?•) Sect. 25,
 
 OF PERSOXAL ANNUITIKS, STOCKS AND SHARES. 357 
 
 eompaiiy having a capital divided iuto shares is required 
 to make out an annual list of its members, with other 
 particulars, and to forward a copy thereof to the registrar 
 of joint stock companies («). No notice of any trust, 
 expressed, implied or constructive, is to be entered on 
 the register {f). And a certificate under the common Certificate of 
 seal of the company, specifying any shares or stock ^^q^]^^ 
 held by any member is priiiid fdcio evidence of his title 
 to the shares or stock therein specified {ii). And the Register 
 register of members is })rhna facie evidence of any 
 matters by the Act directed or authorized to be inserted 
 therein {x). And the Companies Act, 1877, further 
 provides that any certificate of the incorporation of any 
 company, given by the registrar or by any assistant 
 registrar for the time being, shall be received in evi- 
 dence as if it were the original certificate ; and it also 
 provides for the reception as original evidence of all 
 
 certified copies or extracts of all registered docu- Certified 
 , , . copies. 
 
 ments (//). 
 
 Every company is bound by the Act to have a regis- Registered 
 tered office, to which all communications and notices 
 may be addressed (~) . And every limited company Name of 
 must keep its name painted or affixed on the outside of ^^^„ ^^ -^^ ' 
 every office or place of business of the company, in a painted up, 
 conspicuous position, in letters easily legible, and must 
 have its name engraven in legible characters on its seal, 
 and must have its name mentioned in legible eliaractcrs 
 in all notices, advertisements, bills, notes, indorsements, 
 cheques, orders for money or goods on behalf of the 
 company, and in all bills of parcels, invoices, receipts 
 and letters of credit of the company {a). But associa- 
 
 (s) Sect. 26. (y) Stat. 40 & 41 Vict. c. 26, 
 
 (0 Sect. 30. s. 6. 
 
 (m) Sect. 31. {z) Stat. 25 & 26 Vict. c. 89, 
 
 {x) Sect. 37. 8. 39. 
 
 (a) Sect. 41.
 
 358 
 
 OF INCORPOltEAL PERSONAL TKOPERTY. 
 
 Register of 
 mortpraores. 
 
 tions not for profit may, by licensee of the Board of 
 Trade, be registered with limited liability, without the 
 addition of the word limited to their names {h) . Every 
 limited company is required to keep a register of all 
 mortgages and charges specifically affecting property 
 of the company (c). And every limited banking com- 
 pany, and every insurance company, and deposit, provi- 
 dent or benefit society under the Act, is required before 
 it commences business, and afterwards on the first 
 Monday in February and the first Monday in August 
 in every year, to make a statement of its capital, lia- 
 bilities and assets in a given form, to be put up in a 
 conspicuous place in the office of the company (d). 
 
 Power to alter 
 regulations 
 by special 
 resolution. 
 
 A special 
 resolution. 
 
 Subject to the provisions of the Act, and to the con- 
 ditions contained in the memorandum of association, 
 any company formed under the Act may, in general 
 meeting from time to time, by passing a special resolu- 
 tion in manner after mentioned, alter all or any of the 
 regulations of the company contained in the articles of 
 association, or in the Table marked A. in the first sche- 
 dule, where such Table is applicable to the company ; 
 or make new regulations to the exclusion of or in addi- 
 tion to all or any of the regulations of the company ; 
 and any regulations so made by special resolution shall 
 be deemed to be regulations of the company of the same 
 validity as if they had been originally contained in 
 the ai-ticles of association, and shall be subject in like 
 manner to be altered or modified by any subsequent 
 special resolution (e). A resolution passed by a com- 
 pany under the Act is deemed to be special whenever 
 a resolution has been passed by a majority of not less 
 
 (b) Stat. 30 & 31 Viet. c. 131, 
 s. 23. 
 
 (c) Stat. 25 & 26 Vict. c. 89, 
 s. 43. 
 
 {d) Sect. 44. ■ 
 
 (t) Stat. 25 & 26 Vict. c. 89, 
 s. 50 ; Sutton t. The Scarborough 
 Cliff Hotel Company, Limited, 2 
 Drew. & Sm. 521.
 
 OF I'KRSONAI, ANMITIKS, STOCKS ANJ) SHARKS. 359 
 
 than three-fourtlis of such members of the company for 
 the time being entitled, according to the regulations of 
 the company, to vote as may be present, in person or by 
 proxy (in cases where by the regulations of the com- 
 pany proxies are allowed), at any general meeting of 
 which notice specifying the intention to propose such 
 resolution has been duly given ; and such resolution has 
 been confirmed by a majority of such members for the 
 time being entitled, according to the regulations of the 
 company, to vote as may be present, in person or by 
 proxy, at a subsequent general meeting, of which notice 
 has been duly given, and held at an interval of not less 
 than fourteen days, nor more than one month, from the 
 date of the meeting at which such resolution was first 
 passed: At any such meeting, unless a poll is demanded 
 by at least five members, a declaration of the chairman 
 that the resolution has been carried shall be deemed 
 conclusive evidence of the fact, without proof of the 
 number or proportion of the votes recorded in favom* or 
 against the same. Notice of any such meeting shall be 
 deemed to be duly given, and the meeting to be duly 
 held, whenever such notice is given and meeting held 
 in manner prescribed by the regulations of the com- 
 pany. In computing the majority when a poll is de- 
 manded, reference shall be had to the number of votes 
 to which eacli member is entitled by the regulations 
 of the company (/). A copy of every special resolu- 
 tion must be printed and registered (g), and must be 
 annexed to or embodied in every copy of the articles of 
 association that may be issued after the passing of such 
 resolution (A). 
 
 Contracts on behalf of any company may be made as Contracts, 
 follows :— ^""^ '^^<i'^- 
 
 (1.) Any contract which, if made between private 
 
 (/) Sect. 51. (^) Sect. 53. (/() Sect. 54
 
 360 
 
 OF IXCOKPOIIEAI- PERSONAL VJIOPERTY. 
 
 persons would be by law required to be in 
 writing, and if made according to English 
 law to be under seal, may be made on behalf 
 of the company in "WTiting under the common 
 seal of the company, and such contract may 
 be in the same manner varied or discharged. 
 
 (2.) Any contract which, if made between private 
 persons would be by law required to be in 
 writing and signed by the parties to be charged 
 therewith, may be made on behalf of the 
 company in writing signed by any person 
 acting under the express or implied authority 
 of the company, and such contract may in the 
 same manner be varied or discharged. 
 
 (3.) Any contract which, if made between private 
 persons would by law be valid, although made 
 by parol only and not reduced into writing, 
 may be made by parol on behalf of the com- 
 pany by any person acting under the express 
 or implied authority of the company, and such 
 contract may in the same way be varied or 
 discharged (/) . 
 
 Transfer of 
 shares. 
 
 Share war- 
 rants. 
 
 Shares in joint stock companies are transferred by 
 deed registered at the office of the company. But the 
 Companies Act, 1867, provides, in the case of a com- 
 pany limited by shares, for the issue of share warrants 
 with resj)ect to shares fully paid ujd, or with respect to 
 stock (,/) ; and these warrants entitle the bearer to the 
 shares or stock specified in them, and such shares or 
 stock may be transferred by delivery of the share 
 warrant (Z-). 
 
 Winding-- uj). Pro\dsion is made for the winding-up of joint stock 
 
 («) Stat. 30 & 31 Vict. c. 131, 
 8. 37. 
 
 {J) Sects. 27—33. 
 (k) Sect. 28.
 
 OF PERSO^'AL ANNL'ITIKS, STOCKS AM) SHARES. ^Gl 
 
 companies, registered under the Companies Act, 18G2 (/), 
 either by the Court {i)i) or voluntaril}^ («) ; and if vohm- 
 tarily, the winding'-up may by the order of the Court 
 be subject to its supervision (o). And the Joint Stock Joint Stock 
 Companies Arrangement Act, 1870 (7;), authorizes any AiTangcmeut 
 compromise or arrangement to be made with the sanction ^^^' ^^''^^• 
 of the Com't between a company in the course of being 
 wound up and its creditors or any class of such creditors. 
 The Court to which this jurisdiction is given was the 
 Coiu-t of Chancery, except in the case of mines subject 
 to the jurisdiction of the Stannaries ; and now, as we 
 have seen (q), all causes and matters to be commenced 
 under any Act of Parliament by which exclusive jiu'is- 
 diction -with respect to such causes and matters has been 
 given to the jurisdiction of the Court of Chancery, have 
 been assigned to the Chancery Division of the High 
 Court of Justice. But where the Court makes an order 
 for winding-up a company under the Act, it may, if it 
 think fit, direct all subsequent proceedings for winding- 
 up tlie same to be had in the County Coiu't (r). The Liquidators, 
 winding-up is effected by liquidators appointed for that 
 purpose, and who, if appointed by the Court, are styled 
 official liquidators (.s). All persons liable to contribute Contribu- 
 to the assets of a company imdcr the Act, in the event tones. 
 of its being wound up, are called contributories {t). 
 
 {!) The provisions of this Act («/) Stat. 2o & 26 Vict. c. 89, 
 
 for the winding-up of companies ss. 79 — 128. See also stat. 30 & 
 
 registered under this Act, apjily 31 Vict. c. 131, s. 40. 
 also to companies registered under («) Stat. 25 & 26 Vict. c. 89, 
 
 the Joint Stock Companies Acts of ss. 129 — 146. 
 1856 and 1857 (see ante, pp. 349, (o) Sects. 147—152. 
 
 351) ; Stat. 25 & 26 Vict. c. 89, (p) Stat. 33 & 34 Vict. c. 104. 
 
 88. 175, 176 ; Jtc Torquay Bath Co., (q) Ante, p. 99. 
 
 32 Bcav. 681 ; Re London India- {v) Stats. 25 & 26 Vict. c. 89, 
 
 ruhbcr Co., L. R., 1 Ch. 329 ; Be s. 81 ; 30 & 31 Vict. c. 131, ss. 41, 
 
 Beaiijolais Wine Co., L. E., 3 Ch. 42. 
 
 15. As to the winding-up of (.s) Stat. 25 & 26 Vict. c. 89, 
 
 other companies, see ««<<!, pp. 349, ss. 92 — 97, 133 — 144. 
 350, and note (/) to p. 350. (<) Sect. 74.
 
 362 Ol' l.NCORl'OUEAL PERSONAL 1M{0IM-;UTV. 
 
 The liability of contributories is regulated by the fol- 
 lowing rules {/() : — 
 
 1. No past member shall be liable to contribute to 
 
 the assets of the company, if he has ceased 
 to be a member for a period of one year or 
 upwards prior to the commencement of the 
 winding-up : 
 
 2. No past member shall be liable to contribute in 
 
 respect of any debt or liability of the company 
 contracted after the time at which he ceased to 
 be a member : 
 
 3. No past member shall be liable to contribute to 
 
 the assets of the company unless it appears to 
 the Court that the existing members are unable 
 to satisfy the contributions required to be made 
 by them in pursuance of the Act : 
 
 4. In the case of a company limited by shares, no 
 
 contribution shall be required from any member 
 exceeding the amount, if any, unpaid on the 
 shares in respect of which he is liable as a pre- 
 sent or past member : 
 
 5. In the case of a company limited by guarantee, no 
 
 contribution shall be required from any member 
 exceeding the amount of the undertaking en- 
 tered into on his behalf by the memorandum of 
 association : 
 
 6. Nothing in the Act contained shall invalidate any 
 
 provision contained in any policy of insurance or 
 other contract, whereby the liability of individual 
 members upon any such policy or contract is 
 restricted, or whereby the funds of the company 
 are alone made liable in respect of such policy or 
 contract : 
 
 7. No sum due to any member of a company, in his 
 
 character of a member, by way of dividends, 
 
 (m) Sect. 38.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHAKES. 363 
 
 profits or otlierwiso, sliall bo deemed to be a 
 debt of the company payable to such member in 
 a case of competition between himself and any 
 other creditor not being a member of the com- 
 pany ; but any such sum may be taken into 
 account for the purposes of the final adjustment 
 of the rights of the contributories amongst tliem- 
 selves. 
 
 The Supreme Court of Judicature Act, 1875 (m), now Rules of 
 provides (ii), that in the winding-up of any company brobseived.*^ 
 under the Companies Acts, 1SG2 (o) and 1807 {p), whose 
 assets may prove to be insufficient for the payment 
 of its debts and liabilities, and the costs of winding- 
 up, the same rules shall prevail and bo observed as to 
 the respective rights of secured and unsecured credi- 
 tors (y), and as to debts and liabilities provable, and 
 as to the valuation of annuities and future and contin- 
 gent liabilities respectively (r) , as may be in force for 
 the time being under the law of bankruptcy with 
 respect to the estates of persons adjudged banki-upt. 
 This provision has been held not to be retrospective (-s). 
 The Companies Act, 1883 {f), enacts that, in the distri- Priority of 
 bution of the assets of any company being wound up '^^^*'^- 
 under the Companies Acts, 18(52 and 18(57, there shall 
 be paid in i)riority to other debts (a) all wages or 
 salary of any clerk or servant in respect of service 
 rendered to the company dm-ing four months before 
 the commencement of the winding-up not exceeding 
 
 (>w) Stat. 38 & 39 Vict. c. 77. Ite Association of Zand Financiers, 
 
 («) Sect. 10. ibi(l.S73; Thomas \ . Patent Lionite 
 
 (o) Stat. 25 & 26 Vict. c. 89. Companij, 17 Cli. D. 250; Re 
 
 (/>) Stat. 30 & 31 Vict. c. 131. Xorthcrn Counties of England Fire ■ 
 
 {q) Ante, j). 25C. Insurance Company, ibid. 337. 
 (>•) Ante, pp. 253, 254. See (.v) In re Joseph Sucne ^- Co., 
 
 In re Albion dtecl and Wire Com- Limited, 1 Cli. D. 48. 
 
 pany, 7 Ch. D. 547 ; Fc Wilhcrn- {() Stat. 46 & 47 Vict. c. 28. 
 
 sea Brickuorks, IG Ch. D. 337 ;
 
 364 
 
 OF liVCORrOUKAL PERSONAL PROPERTY. 
 
 ^jO/. ; and (1)) all wages of any labourer or workman 
 in respect of services rendered to the company during 
 two months before the commencement of the winding- 
 up {>() ; that the foregoing debts shall rank equally 
 among themselves, and shall be paid in full, unless 
 the assets of the comj)any are insufficient to meet 
 them, in which case they shall abate in ec^ual propor- 
 tions between themselves (r) ; and that, subject to the 
 retention of such sums as may be necessary for the costs 
 of administration or otherwise, the liquidator or liqui- 
 dators or official liquidator shall discharge the foregoing 
 debts forthwith, so far as the assets of the company are 
 and will be sufficient to meet them, as and when such 
 assets come into the hands of such liquidator or liqui- 
 dators or official liquidator (*•) . 
 
 The Com- Acts have been passed to enable joint stock com- 
 
 panies Seals . . 1 . . „ . X • J. 1 
 
 Act, 1864. panics carry mg on busmess m loreign countries to have 
 
 Colonial official seals to be used in such countries {//) ; to enable 
 
 registers. companies, whose objects comprise the transaction of 
 business in a colony, to cause to be kept in any colony, 
 in which it transacts business, a branch register (called 
 a colonial register) of members resident in such colony (;:) ; 
 The Mortgage and to enable certain companies to issue mortgage de- 
 Act, 1865. bentures founded on securities upon or affecting lands, 
 rates and other property therein particularized, and to 
 make provision for the registration of such mortgage 
 debentures and securities {a). 
 
 Life assurance Life assurance companies are now regulated by the 
 companies. j^^^ Assurance Companies Acts, 1870 to 1872 (b). 
 
 (m) Sect. 4. 
 
 {v) Sect. 5. 
 
 (z) Sect. 6. 
 
 (y) Stat. 27 Vict. c. 19. 
 
 {z) Stat. 46 & 47 Vict. c. 30. 
 
 {a) Stat. 28 & 29 Vict. c. 78, 
 amended by stat. 33 & 34 Vict. 
 0. 20. 
 
 {b) Stats. 33 & 34 Vict. c. 71 ; 
 34 & 35 Vict. c. 58, and 35 & 36 
 Vict. c. 41.
 
 OF PKKSONAl, ANXllTIES, STOCKS AM) SHAKES. J3G5 
 
 Shares in joint stock companies are not <joods, wares Sale of shares 
 or meir/iaudizc within the i7th section of the Statute of Statute 'of^''" 
 Frauds ; so that they do not require a written memo- Frauds. 
 randum for a contract for their sale, wlien the value 
 exceeds 10/., and the buyer does not accept and receive 
 any part, nor give something in earnest to hind the 
 bargain or in part-payment (c) . And such shares were 
 not considered to be stock within the meaning of the 
 Stock Jobbing Act above mentioned, and now re- 
 pealed {d). But the sale of shares in joint stock banks Shares in joint 
 is now void unless the contract shall set forth in writing 
 the numbers of the shares in the registry of the com- 
 pany, or where there is no register by distinguishing 
 numbers, then the names of the registered proprietors 
 of the shares at the time of making the contract (r). 
 
 Several Acts of Parliament have been passed for the Friendly 
 encouragement of friendly societies, for the mutual relief '^o^i^*!^'^- 
 of their members and their families in case of sickness, 
 old age, death, or other contingencies (,/') ; all of which 
 are now consolidated into one Act called the Friendly 
 Societies Act, 1875 {g). The Act extends to Great 
 Britain and Ireland, the Channel Islands, and the Isle 
 of Man (//). The Act provides for the appointment of 
 chief and assistant registrars of friendly societies, with 
 a central oflfice (/) . Each friendly society is required Eegistry. 
 
 ic) Htimhle y. Mitchell, 11 Ad. 17 & 18 Vict. c. 101; consoli- 
 
 & EU. 205 ; Knight v. Barber, 16 dated by stat. 18 & 19 Vict. c. 63, 
 
 M. & W. 66 ; Bowlby v. Bell, 3 amended by stats. 21 & 22 Vict. 
 
 C. B. 284. See ante, p. 49. c. 101 ; 23 Sc 24 Vict. c. 58. 
 
 {d ) Hewitt V. Brice, 4 Man. k {(/) Stat. 38 & 39 Vict. c. 60, 
 
 Gr. 355 ; Williams v. Tyre, 18 amended by stats. 39 & 40 Vict. 
 
 Beav. 366; ante, p. 331. c. 32; 42 Vict. c. 9 ; 45 & 46 
 
 {e) Stat. 30 Viet. c. 29. Vict. c. 35 ; and 46 & 47 Vict. 
 
 (/) Stat. 10 Geo. IV. c. 56, c. 47. 
 amendedby4&5Will. IV.c. 40; {h) Stat. 38 & 39 Vict. c. 60, 
 
 3 & 4 Vict. c. 73 ; 9 & 10 Vict. c. s. 3. 
 27; 13 & 14 Vict. c. 115; 15 & 16 (*) Sect. 10. 
 
 Vict. c. 66; 16 & 17 Vict. c. 123;
 
 3G6 
 
 OF lNC()U]'()in;AI, TERSONAL PROPERTY. 
 
 to be registered (k) ; and no society assuring to any 
 member a certain annuity shall be entitled to registry, 
 unless the tables of contributions for such assurance, 
 certified by the actuary to the Commissioners for the 
 Reduction of the National Debt, or by some actuary 
 approved by the Treasury, who has exercised the 
 profession of actiiary for at least five years, be sent 
 to the registrar with the application for registry (/). 
 The registrar, on being satisfied that a society has com- 
 plied with the provisions as to registry in force under 
 the Act, issues an acknowledgment of registry [i)t). 
 Every registered society must have a registered office, 
 
 Trustees. j^^j must appoint one or more trustees (/)). And on 
 
 the death, bankruptcy, or insolvency of any officer of 
 any such society, or on any execution issuing against 
 him, the money or property in his hands belonging to 
 the society are to be paid over and delivered to the 
 society before any other of his debts are paid. Bank- 
 ruptcy or insolvency here includes liquidation of a 
 debtor's affairs by arrangement (o). Upon the death, 
 resignation, or removal of a trustee, the property vested 
 
 New trustees, in such trustee vests in the succeeding trustees, either 
 solely or together with any surviving or continuing 
 trustees, and, until the appointment of succeeding trus- 
 tees, in such surviving or continuing trustees only, or in 
 the executors or administrators of the last surviving or 
 continuing trustee, as personal estate (whether the same 
 be real or personal), subject to the same trusts, without 
 conveyance or assignment ; except that stocks and 
 securities in the public funds of Great Britain and 
 Ireland shall be transferred into the names of the suc- 
 ceeding trustees, either solely or jointly with the sur- 
 viving or continuing trustees (p). In all legal proceed- 
 
 {k) Sect. 11. 
 .(/) Sect. 11, sub-s. (o). 
 (m) Sect. 11, sub-s. (7). 
 («) Sect. 14, sub-s. (1). 
 
 (o) Sect. 15, sub-s. (7). 
 ante, p. 183 et seq. 
 
 (p) Sect. 16, sub-s. (4). 
 
 See
 
 OF rEKSOXAI, AXXri TIl'.S, slOCKS AM) SllARi;s. 
 
 3G7 
 
 iiigs wLatsoGver concerning any siicli property the same 
 shall be stated to be the property ol the trustees for the 
 time being iu their proper names as trustees for the 
 society or branch (as the case may be), without fm-ther 
 description (q). Where a society is entitled in equity Copyhold.s. 
 to any hereditaments of copyhold or customary tenm-e, 
 either absolutely or by way of mortgage or security, 
 the lord of the manor of which the same are held shall 
 from time to time, if the society so require, admit the 
 trustees (not to exceed three) of such society as tenants 
 in respect of such hereditaments on payment of the 
 usual fines, fees, and other dues payable on the admis- 
 sion of a single tenant (/•). A receipt under the hands Receipt for 
 
 , • 1 ■^ ji -ii mortgage 
 
 of the trustees, countersigned by the secretary, m the money vests 
 form contained in the third schedule to the Act, or in ^^^'^ estate. 
 any form specified by the rules of the society or any 
 schedule thereto, for all monej's secured to the society 
 by any mortgage or other assurance (such receipt being 
 endorsed upon or annexed to such mortgage or other 
 assurance), A^acates the same, and vests the property 
 therein comprised in the person entitled to the equity 
 of redemption of the same, without reconveyance . or 
 rcsurrendcr; but tliis ])rovision does not aj)ply to Scot- 
 land or to the Island of Jersey (.s). If such mortgage 
 or other assurance has been registered under any Act 
 for tlie registration or record of deeds or titles, or is of 
 coinholds or lands of customary tenure and entered on 
 any court rolls, the registrar under such Act or record- 
 ing officer, or steward of the manor, or keeper of the 
 register, shall, on production of such receipt verified by 
 oath of any person, enter satisfaction on the register or 
 on the court rolls respectively of such mortgage, or of 
 the charge made by such assurance, and shall grant a 
 certificate, either upon such mortgage or assiu-anco or 
 separately, to the like effect, which certificate shall bo 
 
 {fj) Sect. 15, sub-s. (5). (»■) Sect. 16, sub-s. (7). 
 
 (»•) Sect. 16, sub-8. (6).
 
 3G8 
 
 OV INCOKPOREAL PERSONAL PROPERTY, 
 
 Amendment 
 
 Act. 
 
 received in evidence in all Courts and proceedings with- 
 out further proof {f) . The Friendly Societies Amend- 
 ment Act, 187G (u), contains provisions with respect to 
 the conversion of a registered society into a branch of 
 any other registered society, and otherwise amends the 
 provisions of the Friendly Societies Act, 1875. 
 
 Industrial 
 and provident 
 societies. 
 
 Loan 
 societies. 
 
 Savings 
 banks. 
 
 Post-office 
 
 savings 
 
 banks. 
 
 Savings bank 
 annuities. 
 
 Acts of Parliament have also been passed to legalize 
 the formation of industrial and provident societies for 
 carrying on trades or handicrafts in common (;r), all 
 of which are now consolidated into one Act called the 
 Industrial and Provident Societies Act, 1876 {//) ; and 
 many of the provisions which relate to friendly societies 
 apply also to these institutions. Loan societies are 
 regulated by another Act of Parliament, which, after 
 having been long periodically continued, is now made 
 perpetual [z] . Other Acts of Parliament have recently 
 been passed for the regulation of savings banks (a) ; 
 and particularly for the establishment of savings banks 
 in connection with the Post-office (b), — banks which, 
 having the security of a government guarantee, are a 
 great boon to the poorer classes. And the Government 
 Annuities Act, 1882 (c), makes provision for the grant- 
 ing to any person not under the age of five years of a 
 goverinnent annuity (in the Act referred to as a savings 
 bank annuity) of any amount not exceeding 100/. a 
 
 {t) Sect. 16, sub-s. (8). 
 
 (u) Stat. 39 & 40 Vict. c. 32. 
 
 (:i-) Stat. 15 & IG Vict. c. 31, 
 amended by stats. 17 & IS Vict. 
 c. 25, and 19 & 20 Vict. c. 40 ; 
 repealed and consolidated by stat. 
 25 & 26 Vict. c. 87, amended by 
 stat. 30 & 31 Vict. c. 117, and 
 explained and amended by stat. 
 34 & 35 Vict. c. 80. 
 
 {i/) Stat. 39 & 40 Vict. c. 45, 
 amended by stat. 46 & 47 Vict, 
 c. 47. 
 
 {z) Stat. 3 & 4 Vict. c. 110, 
 made perpetual by stat. 26 & 27 
 Vict. c. 56. 
 
 {a) Stat. 26 & 27 Vict. c. 87, 
 amended by stats. 39 & 40 Vict, 
 c. 52 ; 43 & 44 Vict. c. 36, and 46 & 
 47 Vict. c. 47. 
 
 (*) Stats. 24 Vict. c. 14; 26 
 Vict. c. 14, and 32 & 33 Vict, 
 c. 59. 
 
 {(■) Stat. 45 & 46 Vict. c. 51, 
 s. 2.
 
 OF PERS;OXAL ANNUITIES, STOCKS AND SHARES, 369 
 
 year. The same Act (d) enables the National Debt Savings bank 
 Commissioners to make a contract of insurance (in the "^^^^'^°^* 
 Act referred to as a savings bank insurance) with any 
 person, not over the age of sixty-five years and not under 
 the age of foui-tecn years, for the payment of any amount 
 not exceeding 100/., to be made on the attainment by 
 such person of a specified age or sooner in case of his 
 death, or to bo made at his death. Trades unions are now Trades 
 regulated by the Trade Union Acts, 1871 and 187G {e). 
 
 unions. 
 
 An Act was passed in the reign of King "William IV. Building 
 for the regulation of benefit building societies (./'). The ^°°^° ^^^' 
 funds of these societies were raised by monthly con- 
 tributions of the members, which must not have ex- 
 ceeded 20.S;. per share, and by fines for non-payment. 
 The shares must not have exceeded the value of 150/. 
 each; but any member might hold more than one 
 share {(/). When the amount of the shares had been 
 realized, the money was divided amongst the members, 
 and the society was dissolved. Such members, however, 
 as might wish to buy land or to build, might receive the 
 amount of their sliares in advance on payment of an 
 additional subscription by way of interest, and also on 
 payment of a bonus for the advance, which of coui'se 
 was deducted from the amount of the share advanced. 
 This bonus was usually determined by competition 
 amongst the members, the shares to be paid in advance 
 being put up by auction by the society ; and the sub- 
 'scriptions and fines to become due in respect of the 
 advanced shares were then secured to the society by 
 the pmx'hasers, by mortgage of land or houses of sufii- 
 eient value (//) . These mortgages were not liable to Stamp duty. 
 
 {d) Sects. 3, 4, amending stats. by stat. 4G & 47 Vict. c. 47. 
 
 16 & 17 Vict. 0. 45, 8. 10, and 27 (/) Stat. 6 & 7WiU, IV. c. 32. 
 
 & 28 Vict. 0. 43, sects. 3 — 5. (ff) Morrison v. Glover, 4 Ex. 
 
 (c) Stats. 34 & 35 Vict. c. 31, Rep. 430. 
 
 and 39 & 40 Vict. c. 22, amended (//) See Moski/ v. Haker, 6 Hare, 
 
 w.p.r. B B
 
 370 OF TNCOUrOUTvM, TKltSOXAl, IMlOrEllTY. 
 
 stamp duty (/), provided ihoy were made by a memToer 
 for securing tlie repayment to tlie society of money not 
 exceeding five hundred pounds ; but in other cases the 
 stamp duty attached (/.). These mortgages were also 
 exempt from any of the forfeitm^es or penalties formerly 
 in force against usmy (/). And a receipt for the monies 
 secured, indorsed by the trustees of the society upon 
 any such mortgage, vested the estate com2:)rised in the 
 security in the person entitled to the equity of re- 
 FreehoM land demptiou, without any reconveyance {m). Under cover 
 of the Building Societies Act, many societies called 
 freehold land societies have been established for the 
 purpose of buying freehold land and selling it again in 
 lots to tlie different members ; but these societies are not 
 within the scope of the building and friendly societies 
 Acts, and can only be certified as such by the conceal- 
 The Building ment of their real object (»). The laws relating to 
 Societies Act, ]3^^ii(Xi^g societies have been consolidated and amended 
 by a recent Act of parliament (o) called the Building 
 Societies Act, 1874 (jj). The registrar of friendly 
 societies, for the time being, is made the registrar of 
 
 87 ; 3 De Gex, M. & G. 1032 ; Vict. c. 99, and re-enacted by 
 
 Dobinson v. Haicks, 16 Sim. 407 ; stat. 33 & 34 Vict. c. 97, s. 112. 
 Doe d. Morrison v. Glover, 15 Q. [I) Stat. 6 & 7 Will. IV. c. 32, 
 
 B. 103 ; Seagrave v. Fope, 1 De s. 2 ; Farker v. Butcher, L. R., 3 
 
 Gex, Mac. & Gord. 783 ; Fleming Eq. 762. 
 
 V. Self, Kay, 518; 3 De Gex, (m) Sect. 5 ; Pm«er v. Price, 28 
 
 Mac. & Gord. 997 ; Farmer v. Beav. 68 ; Fearse v. Jackson, Law 
 
 Smith, 4 H. & N. 196 ; Sparrow Rep., 3 Ch. Ap. 576 ; Fourth Cltij^ 
 
 V. Farmer, 26 Beav. 511; Smith Mutual Bcncft Building Society y. 
 
 T. Filkington, 1 De Gex, F. & J. Williams, 14 Oh. D. 140 ; Eohinson 
 
 120 ; Matterson v. Flclerfield, L. v. Trctor, 12 Q. B. D. 423. 
 R., 4 Ch. 207; Ex parte Osborne, («) See Grimes v. Harrison, 26 
 
 L. C. and LL.J., 23 W. R. 49; Beav. 435 ; Hughes v. laijton, Q. 
 
 L. R., 10 Ch. 41. B., 10 Jur., N. S. 513. 
 
 (j) Walker \. Giles, QCB.GQ^; (o) Stat. 37 & 38 Vict. c. 42, 
 
 Williams v. Haytvard, 22 Beav. amended by stats. 38 Vict. c. 9, 
 
 220. and 40 & 41 Vict. c. 63. 
 
 (/.-) Stat. 31 & 32 Vict. c. 124, [p) Sect. 1. 
 
 s. 11 ; repealed by stat. 33 & 34
 
 OF rr.KSONAl. ANNUITIKS, STOCKS AM) STIAllES. 371 
 
 building societies {q). These societies are now divided 
 into terminating societies, which Ly their rules arc to 
 torniinato at a fixed date, or -when a result specified in 
 the rules is attained, and pennanent societies which have 
 not hy thoir rul(>s any sucli fixed date or specified result 
 at which tlicy shall terminate (>•)• The Act of King- 
 William IV. is repealed, (.s). But every society whose Incori^ora- 
 rules have been certified under the repealed Act may ^°^' 
 obtain a certificate of incorporation under this Act (/). 
 Every society upon receiving a certificate of incorpora- 
 tion under the Act becomes a body corporate by its 
 registered name, having perpetual succession, until 
 terminated or dissolved as therein provided, and a 
 common seal (/^). And all rights of action and other Eeal and 
 rights, estates, and interests in real and personal estate ^^^^^^^f^ests 
 belonging to or held in trust for any society certified iu society. 
 under the repealed Act, or incorporated under the Act 
 of 1874, vest in the society without any conveyance or 
 assignment whatsoever, except iu the case of stocks and 
 securities iu the public funds of Great Britain and Ire- 
 land, and estates in copyhold or customary heredita- 
 ments, the title to which cannot be transferred without 
 admittance (.r) . Any number of persons may establish Purposes for 
 a society vmder this Act, either terminating or perma- tlus^ina^v^e' 
 nent, for the purpose of raising, by the subscriptions of established. 
 the members, a stock or fund for making advances to 
 members out of the funds of the society upon security 
 of freehold, copyhold or leasehold estate, by way of 
 mortgage ; and any society under this Act shall, as far 
 as is necessary for the said purpose, have power to hold 
 land with the right of foreclosiu'e, and may from time 
 to time raise funds by tlie issue of shares of one or more 
 denominations, either paid up in full or to bo paid by 
 
 (9) Sect. 3. («) Stat. 37 & 38 Vict. c. 42, 
 
 (r) Sect. 5. s. 9. 
 
 (.s) Sect. 7. (j-) Sect. 27, aud 40 & 11 Vict. 
 
 (0 Stat. 38 Vict. c. 0, s. 2. c. G3, ss. 3, 4. 
 
 IS It 2
 
 372 
 
 OF INCOKPOREAL rERSOXAL PROl'ERTY, 
 
 periodical or other subscriptions, and with or without 
 accumulating- interest, and may repay such funds when 
 no longer required for the purposes of the society. 
 Provided always, that any laud to which any such 
 society may become absolutely entitled by foreclosure, 
 or by surrender, or other extinguishment of the right 
 of redemption, shall, as soon afterwards as may be 
 conveniently practicable, be sold or converted into 
 money [ij) . There appears to be now no limit to the 
 amount of the shares which may be held in these 
 Copyholds. societies. There is a similar provision as to copyholds 
 to which any such society is entitled in equity by way 
 of mortgage {z) to that contained in the Friendly So- 
 cieties Act, 1875 (rt) ; and also a similar provision for 
 vesting the legal estate of property mortgaged to the 
 society by a receipt endorsed on the mortgage (/>). The 
 exemption of mortgages from stamp duties is not con- 
 tinued (r). And a society under the Act may purchase 
 or hold upon lease any land for the purpose only of 
 erecting thereon a building for conducting the business 
 of the society [d). 
 
 The La- 
 bourers' 
 Dwellings 
 Act, 1855. 
 
 An Act was passed in 1855 for facilitating the erec- 
 tion of dwelling-houses for the labouring classes (e), 
 under which any number of persons, not less than six, 
 might by subscribing articles of association form them- 
 selves into a company for the purposes of the Act. 
 But this Act was never acted on, and has since been 
 repealed (/). 
 
 Judgment 
 
 debts. 
 
 The provisions above referred to for charging the 
 
 [y) Stat. 37 & 38 Vict. c. 42, 
 s. 13. 
 
 (c) Sect. 28. 
 
 {a) Stat. 38 & 39 Vict. c. 60, 
 ,s. IG, sub-s. (6). Ante, p. 367. 
 
 {b) Stat. 37 & 38 Vict. c. 42, 
 
 42. See ante, p. 367. 
 
 (f) Sect. 41. 
 
 {d) Sect. 37. 
 
 {e) Stat. 18 & 19 Vict. c. 132. 
 
 (/) By Stat. 38 & 39 Vict. c. 66.
 
 OF PEKSONAL ANNUITIES, STOCKS AND SHARES. 373 
 
 stock of any dettor witJi the payment of any judgment 
 debt (,v) extend to stock and shares in any j)i(bli(' com- 
 pany in England, whether incorporated or not {/>). 
 
 The prerogative of the Crown in the grant of letters Patents, 
 patent is frecjuently exercised not only for the incorpo- 
 ration of joint stock companies, hut also for conferring 
 on private individuals certain exclusive rights and pri- 
 vileges. These rights, called jxifoif.s from the letters- 
 patent which confer them, will be considered in the next 
 chapter. 
 
 {ff) Ante, p. 337. p. 14. See Xicholh v. lioscwarne, 
 
 (h) Stat. I & 2 Viut. c. 110, C C. B., N. S. 480.
 
 374 
 
 OF INCOlirOKEAL PERSOXAI. I'ROPEllTY. 
 
 CIIArTER II. 
 
 OF PATENTS AND COPYRIGHTS. 
 
 A patent. A PATENT is the namo usually given to a grant from 
 the Crown, by letters-patent, of the exclusive privilege 
 of making, using, exorcising and vending some new 
 invention. The granting of such letters-patent is an 
 ancient prerogative of the Crown, a prerogative which 
 remains unaffected by the Patent Law Amendment 
 Act, 1852 (r/), or the Patents, Designs and Trade Marks 
 Act, 1883 {h). In the reign of Queen Elizabeth this 
 prerogative was stretched far beyond its due limits, and 
 the monopolies thus created formed one of the griev- 
 ances which King James, her successor, was at last 
 obliged to remedy. Accordingly by the first section of 
 a statute passed in the twenty-first year of his reign, 
 and commonly called the Statute of Monopolies (r), it 
 was declared and enacted that all such monoj^olies WTre 
 altogether contrary to the laws of this realm and so 
 were and should be utterly void and of none effect, and 
 in nowise put in ui-e or execution. In this statute, 
 however, there are certain exceptions, and particularly 
 one on which "the modern law with res23ect to patents 
 may be said to be founded. This exception is contained 
 
 Proviso. in the Gth section, which runs as follows : " Provided 
 
 also and be it declared and enacted, that any declara- 
 
 Statuto of 
 Monopolies. 
 
 («) Stat. 15 & IG Vict. c. 83; 
 sec sect. 16. 
 
 {b) Stat. 46 & 47 Vict. c. 57; 
 see s. 116. 
 
 W Stat. 21 Jac. I. c. 3.
 
 OF PATENTS AND COPYRIGHTS. 375 
 
 tion before mentioned shall not extend to any letters- 
 patent and grants of privilege for the term of fourteen, 
 years or under, hereafter to he made, of the sole working 
 or making of any manner of new manufactures within 
 this realm, to the true and first inventor and inventors 
 of such manufactures, which others at the time of 
 making such letters-patent and grants shall not use, so 
 also they be not contrary to the law or mischievous to 
 tlie state, by raising prices of commodities at homo, or 
 hurt of trade, or generally inconvenient ; the said four- 
 teen years to be accounted from the date of the first 
 letters-patent or grant of such privilege hereafter to be 
 made ; but that tlie same shall bo of such force as they 
 shoidd be if this Act had never been made, and of none 
 other" {d). The 1st and 6th sections of the Statute of 
 Monopolies are still in force. 
 
 It will be seen that the granting of letters-patent is 
 not expressly warranted by this statute ; but tliat it 
 merely reserves to such letters-patent as fall within the 
 terms of the exception, such force as they should have 
 had if the Act had never been made, and none other 
 force. As, however, all grants of exclusive privilege by 
 letters-patent, which do not fall within this oxcej^tion, 
 and some others of little importance, are now rendered 
 void by tlie statute, the construction of this exception 
 has become a matter of great practical importance. 
 And it is declared in the Patents, Designs and Trade 
 Marks Act, 1883 {<■), by which the law relating to the 
 grant of letters for an invention is now regulated, that, 
 in and for the purposes of that Act, "invention" means luveution. 
 any manner of new manufacture the subject of letters- 
 patent and grant of privilege within section G of the 
 Statute of Monopolies (./'). 
 
 ('0 Stat. 21 Jac. T. e. 3, s. C. s. IG. 
 
 (() Stat. IG & 17 Vict. c. ol, (/) Stat. 21 Jac. I. c. 3.
 
 376 OF IXfORPOllEAL TERSONAL I'ROPEKTY. 
 
 Term of And, first, tlie term must be fouriecn years from the 
 
 teen ycSr' ^^^^ ^^ ^^^ letters-patent, or under ; and the full term 
 of fourteen years has been usually granted. By a 
 statute of the year 1853, it was provided that all letters- 
 patent for inventions, granted under the provisions of 
 the Patent Law Amendment Act, 1852, should be made 
 subject to the condition that the same should bo void, 
 and that the powers and privileges thereby granted 
 should cease, at the expiration of three and seven years 
 respectively from the date thereof, unless there should 
 be paid before the expiration of the said three and seven 
 years respectively certain stamp duties mentioned in the 
 Act, namely, 50/. stamp duty before the expiration of 
 the third year, and 100/. stamp duty before the expira- 
 tion of the seventh year {(j) . This statute was repealed 
 by the Patents, Designs and Trade Marks Act, 1883 (^), 
 which now provides that the term limited in every patent 
 for the dm-ation thereof shall be foiu-teen years from its 
 date {%) ; but that every patent shall, notmthstanding 
 anything therein or in that Act, cease if the patentee 
 fails to make the prescribed payments within the pre- 
 scribed times ili) . But if the patentee fail so to make 
 any such payment through accident, mistake or inad- 
 vertence, he may obtain an enlargement of the time for 
 making that payment under the conditions specified 
 in the Act (/) . The fees now payable in respect of 
 letters-patent, whether granted before or after the 
 commencement of the Patents, Designs and Trade 
 Marks Act, 1883 (m), and the times of payment of such 
 fees, are prescribed by that Act (») and the Patents 
 
 (<7) Stat. 16 & 17 Vict. c. 5, (/.) Sect. 17, sub-s. 2. 
 
 s. 2 ; Williams V. Frost, 28 Beav. [1) Sect. 17, sub-ss. 3, 4; see 
 
 93. Patents Rules, 1883, Nos. 46, 47. 
 
 (A) Stat. 46 & 47 Vict. c. 57, {m) See sect. 45. 
 
 s. 113. («) Sect. 24. 
 
 (j) Sect. 17, sub-s. 1.
 
 OF PATENTS AND COPY U TO TITS. 377 
 
 Rules, 1883 {o), and are stated in the note (jt). Tlio 
 
 payments prcscriLed by the statutes of 1853 and 1883 
 
 appear high, but thoy are a great improvement on tho 
 
 old law, under which heavy fees and duty were payable 
 
 on taking out every patent ; whcjreas now, if a patent 
 
 prove useless, it may be discontinued, and the payment 
 
 saved. By a statute of "Will. IV. {q), a prolongation of Extcusiou of 
 
 the term granted by the original letters-patent might ^^"^' 
 
 be granted, either to the original grantor or to his 
 
 assignee (/•), for a term not exceeding seven years after 
 
 the expiration of the first term in case the Judicial 
 
 Committee of tho Privy Council, upon proper ap[>lica- 
 
 tion, should have reported to her Majesty, that such 
 
 further extension of tho term should bo granted. And 
 
 (o) Rules 4, 42, 43; sec W. N. 2Gtli Jan. 1884, Supplement. 
 
 £ s. d. £ 1^. d. 
 {p) On application for provisional protection . 10 
 
 On filing- complete specification '6 C 
 
 4 
 
 Or, On filing complete specification with first application 4 
 Ou certificate of renewal : — 
 Before end of four years from date of patent .... 50 
 Before end of seven years, or in the case of patents 
 granted under the Patents, Designs and Trade 
 Slarks Act, 1883, Lcforo the end of eight years 
 
 from date of patent 100 
 
 Or in lieu of tho fees of oO/. and 100/., the following 
 annual fees : — 
 Before the expiration of tho 
 
 4th year from the date of the patent 10 
 
 8th ,, ,, 10 
 
 6th „ ,, 10 
 
 7th ,, ,, 10 
 
 8th ,, ,, 1.) 
 
 9th „ ,, 15 
 
 10th „ ,, 20 
 
 11th „ ,, 20 
 
 12th ,, ,, 20 
 
 13th „ ,, 20 
 
 (v) Stat. 5 & G Will. IV. c. 83, & 17 Vict. c. 115, s. 7. 
 s. 4, amended by 2 & 3 Vict. (;•) Rmscll v. Ledmm, 14 Mco. 
 
 c. 67 ; and extended by stats. k Wels. 574 ; affirmed, 16 M. & 
 lo & 16 Vict. 0. 83, s. 40, and 16 W. 633 ; 1 H. of L. Cas. G87.
 
 878 OF INCORPOREAL rERSOXAl, TKOPERTY. 
 
 if such further period of seven years coukl have been 
 shown to be insufficient for the reimbursement and re- 
 muneration of the expense and labour incuiTed in per- 
 fecting the invention, then, by a subsequent statute (-s), 
 the Crown might grant to the inventor, or his assignee, 
 an extension of the patent for any time not exceeding 
 fourteen years. These statutes were repealed by the 
 Patents, Designs and Trade Marks Act, 1883 (/). This 
 Act now provides (jt) that the person for the time being 
 entitled to the benefit of a patent (,r) may, after adver- 
 tising as therein required, present a petition to her 
 Majesty in Council, praying that his patent may be 
 extended for a further term ; but such petition must bo 
 presented at least six months before the time limited for 
 the expiration of the patent. If her Majesty shall be 
 pleased to refer any such petition to the Judicial Com- 
 mittee of the Privy Council, the said Committee are 
 required to proceed to consider the same (jj) . And the 
 Act provides (;:) that, if the Judicial Committee report 
 that the patentee has been inadequately remunerated by 
 his patent, it shall be lawful for her Majesty in Council 
 to extend the term of the patent for a further term not 
 exceeding seven, or, in exceptional cases, fourteen years ; 
 or to order the grant of a new patent for the term 
 therein mentioned, and containing any restrictions, con- 
 ditions and provisions that the Judicial Committee may 
 thiuk fit. 
 
 New manu- Secondly, the patent must be for " the working or 
 
 ac uics. raakiug of new manufactures within this realm, which 
 
 (.s) Stat. 7 & 8 Vict. c. G9, ss. 25 ; 1 Moo. P. C. C. (N. S.) 258. 
 2, 4, continued by stats. 15 & IG [t) Stat. 46 & 47 Vict. c. 57, s. 
 
 Vict. 0. 83, s. 40, and 16 & 17 113. 
 
 Vict. c. 115, s. 7 ; In re Korton''s («) Sect. 25, sub-s. 1 ; see sect. 
 
 Patent, P. C, 9 Jar., N. S. 419 ; 45. ' 
 11 W. R. 720 ; 1 Moo. P. C. C. (.r) See sect. 46. 
 
 (N. S.) 343 ; Be Hill's Faicnt, P. (y) Sect. 25, sub-s. 3. 
 
 C, 9 Jur., N. S. 1209 ; 12 W. R. (c) Sect. 25, sub-s. 5.
 
 Of J'ATKNTs AND COl'VKKiUTS. ;j79 
 
 others at the time of making such letters-patents and 
 grants shall not use." A patent cannot be granted for No patent for 
 a mere principle not carried out in some actual manu- '^ pinxipic. 
 facture {a), nor for the better working of a manufac- 
 turing process already in use [h) ; but it may be granted 
 for an improved combination of old machinery, or for Combina- 
 distinct combinations, either severally claimed (r), or ^^^^' 
 merely claimed as together forming one machine {(/). 
 The use mentioned in the Statute of Monopolies has rublication. 
 been held to mean a use in public ; if therefore the 
 invention, for which the patent is sought to be obtained, 
 has been previously used in public within tlie realm, the 
 patent will be void (e) . And, if the invention slioidd 
 ha\'o been previously known to the public within the 
 realm, although not used, that is sufficient to avoid the 
 patent (,/"). The I'calni in this statute has been deter- 
 mined 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 publicly known or practised in England, a patent 
 for Scotland was void {(/) . It is provided by the Exliibition of 
 Patents, Designs and Trade Marks Act, 1883 (//), that 
 the exhibition of an invention at an industrial or inter- 
 
 au luveutiou. 
 
 (rt) Hornhloicer v. BouUon, 8 T. S. 29 ; Hills v. Liverpool Vnited 
 
 Rep. 95; see also Badische Anilin Gaslight Company, 9 Jur., N. S. 
 
 imd Soda Fuhrik v. Zcvi/islciii, 24 140 ; ILiruood v. Great Xortlurn 
 
 Ch. D. lo6, 161, 169. litiilicai/ Compaiii/, Zb 1-ia.yv Jonrn., 
 
 {b) Patterson v. Gaslight and Q. B. 27 ; 2 B. & S. 194 ; Yojoig 
 
 Coke Company, C. A., 2 Ch. D. v. Fernie, 4 Giff. 577 ; 10 Jur., 
 
 812; affirmed, 3 App. Cas. 239. N. S. 526. 
 
 (c) Lister v. Leather, 8 E. & B. (/) ITimpton v. Spiller, G Ch. 
 
 1004. D.412; 26W.R.285;Prt«f;-4o«v. 
 
 id) Clark v. Adie, L. R., 10 Gaslight and Coke Company, 3 A'p-p. 
 
 Ch. 667; affirmed, 2 App. Cas. Cas. 239, 244, 245; United Tele- 
 
 315. phone Co. v. Harrison ^- Co., 21 
 
 (r) Lewis v. Marling, 10 Barn. Ch. D. 720, 730, 731. 
 & Cress. 22; Carpenter y. Smith, (g) Broun v. Annandale, 8 CI. 
 
 9 M. & W. 300 ; He Xeieall, 4 C. & Fin. 214. 
 
 B., N. S. 209; Bells v. Menzies, (h) Stut. 46 & 47 Vict. c. 57, 
 
 10 H. of L. Cas. 117; 9 Jur., N. s. 39.
 
 380 OF INCOUl'OKKAL TERSONAL rKOPEKTY. 
 
 national cxliibition, ecrtified as such by tlie Board of 
 Trade, or the publication of any description of the 
 invention dimng the period of the holding of the ex- 
 hibition, or the use of the invention for the purpose of 
 the exhibition in the place where the exhibition is held, 
 or the use of the invention during the period of the 
 holding of the exhibition by any person elsewhere, 
 without the privity or consent of the inventor, shall 
 not prejudice the right of the inventor or his legal per- 
 sonal representative to apply for and obtain provisional 
 protection and a patent in respect of the invention or 
 the validity of any patent granted on the application, 
 provided that both the following conditions are com- 
 plied vnih, namely: — (a) The exhibitor must, before 
 exhibiting the invention, give the comptroller the pre- 
 scribed notice of his intention to do so ; and (b) The 
 application for a patent must be made before or within 
 six months from the date of the opening of the exhi- 
 bition. 
 
 By the statute of Will. IV., to whicli we have before 
 referred, it was provided, that letters-patent might be 
 confirmed, or new ones granted, for any invention or 
 supposed invention, which should have been found by 
 the verdict of a jury, or discovered by the patentee or 
 his assigns, to have been either wholly or in part in- 
 vented or used before, if the Judicial Committee of the 
 Privy Council, upon examining the matter, should have 
 been satisfied that the patentee believed himself to be 
 the first and original inventor, and that such invention, 
 or part thereof, /tad not been pub/ie/// cnid general/// used 
 before the date of the first letters-patent (/). This enact- 
 ment was however repealed by the Patents, Designs 
 and Trade Marks Act, 1883 (k). 
 
 (i) Stat. 5 & 6 Will. IV. c. S3, (A) Stat. 46 & 47 Vict. c. 57, 
 
 s. 2, s. 113.
 
 OF PATENTS AND COrYRIOIITS. 381 
 
 Thirdly, a patent must bo granted " to tlio true and True and first 
 first inventor and inventors." If therefore the original ^'^^^'^'^o^- 
 inventor should sell his secret to another person, such 
 person cannot obtain letters-patent for the invention in 
 his own name ; but the original inventor must obtain 
 the letters-patent, and then assign them to the other. 
 If two persons should both make the same discovery, he 
 who first publishes it by obtaining a patent for it, will 
 be the true and first inventor within tlio meaning of 
 the statute, although he may not actually have been the 
 first to make the discovery (/). But a person cannot 
 obtain a patent for an invention which has been com- 
 municated to him by another within the realm {m). If, Foreig-n 
 however, a person should be in possession of an invention iii^"-'°t'o'i-^- 
 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 (n) ; 
 and it is no objection that the patent is taken out iu 
 trust merely for the foreign inventor (o). The Patent 
 Law Amendment Act, 1852, provided that, where 
 letters-patent were granted in the United Kingdom for 
 any invention first invented in any foreign country, or 
 by the subject of any foreign state, and a like privilege 
 for the exclusive use or exercise of such invention in 
 any foreign country were there obtained before the 
 grant (which there meant the date (;;)) of such letters- 
 patent in the United Kingdom, all rights and privileges 
 
 (/) Boulion V. Ball, 2 H. Black. also Jossel, M. R., Marsden v. 
 
 487. fSaville Street Foundry and Engineev- 
 
 {m) mil V. Thompson, 8 Taunt. ing Com})an>j, 3 Ex. D. 203, 205— 
 
 395; S. C, 2 J. B. Moore, 452 ; 207; and sec Patents Rules, 1883, 
 
 Marsden v. Saville Street Foundry No. 27. 
 
 and Enginecriny Company, 3 Ex. (o) Beard v. Egerton, 3 C. B. 97, 
 
 D. 203. 129. 
 
 («) Edgehcrry v. Stephens, 2 {p) Uolstc v. liohertson, C. A., 
 
 Salk. 447 ; riimpton v. Malcolmson, 4 Ch. D. 9. 
 M. R., 3 Ch. D. 531, 555; see
 
 382 OF IXCORPORKAL PERSOXAL PROPKRTY. 
 
 under such letters-patent should (notwithstanding any 
 term in such letters-patent limited) cease and be void 
 immediately upon the expiration or other determination 
 of the term of the like privilege obtained in such foreign 
 coxnitry ; or, "where more than one such like privilege 
 was obtained abroad, immediately upon the expiration 
 or determination of the term of such privileges which 
 should first expire or be determined; and that no 
 letters-patent granted for any invention, for which any 
 patent or like privilege should have been obtained in 
 any foreign country, should be of any vaKdity, if 
 granted after the expiration of the term for which the 
 foreign patent^or privilege was in force (q) . This enact- 
 ment was however repealed by the Patents, Designs 
 Legal per- and Trade Marks Act, 1883 (r). Before the year 1884, 
 sentative of" letters-patent for an invention could not lawfully be 
 an inventor, granted to any person upon an application made after 
 the death of the true and first inventor within the 
 meaning of the Statute of Monopolies («) . The Patents, 
 Designs and Trade Marks Act, 1883 (/), nov/ pro- 
 vides {u) that, if a person possessed of an invention dies 
 without making application for a patent for the in- 
 vention, application for a patent may be by, and a 
 patent for the invention granted to his legal personal 
 representative. But every such application must be 
 made within six months after the decease of such 
 person, and in the prescribed form (.v). The remaining 
 restrictions imposed by the Act of James I. require no 
 comment. 
 
 {q) Stat. 15 & IG Vict. c. 83, s. 113. 
 8. 25; Daw v. Mei/, V.-C. W., (.s) Marsden v. Saville Street 
 
 36 L. J., N. S. 482; Law Kep., Foundry and Engineering Company, 
 
 3 Eq. 496 ; He Winan's Patent, 3 Ex. D. 203. 
 ,Law Rep., 4 P. C. 93 ; He John- (t) Stat. 46 & 47 Viet. e. 57. 
 
 so?i'sP«<f«^, LawEep.,4P.C. 75; («) Sect. 34, sub-s. 1; see sects, 
 
 ,jf?e BIaJcc''s Patent, Law Hep., 4 3, 45. 
 
 P- C. 535. [x) Sect. 34, .'^ub-s. 2 ; see sect, 
 
 (r) Stat. 46 & 47 Vict. c. 57, 5; andratent.«Rules,1883,No.24.
 
 Ol' PATKX'rS AND (ol'VlMCinS, 383 
 
 . Tlic granting of letters-patent is, as has been oL- Grant of 
 served, a prerogative of the Cro-^ii ; and although a et*ers-patent. 
 patent may hoav be always obtained for any new in- 
 vention, yet the grant is still a matter of favour and 
 not of right. And it is declaivd in the Patents, 
 Designs and Trade Marks Act, 1883 (y), that nothing 
 contained in that Act shall take away, abridge or pre- 
 judicially affect the prerogative of the Crown in re- 
 lation to the granting of any letters-patent or to the 
 withholding of a grant thereof. Before the year 18S4, Rights re- 
 thc exclusive privileges granted by letters-patent were Crown. 
 granted as against the subjects of the Crown, and not 
 as against the Crown itself (c). It is now enacted in the 
 Patents, Designs and Trade Marks Act, 1883 (a), that a 
 patent shall have to all intents the like effect as against 
 her Majesty the Queen, her heirs and successors, as it 
 has against a subject {b) ; but that the officers or autho- 
 rities administering any department of the service of 
 the Crown may by themselves, their agents, contractors 
 or others, at any time after the application, use the 
 invention for the services of the Crown en terms to 
 be before or after the use thereof agreed on, witli 
 the approval of the Treasury, between those officers 
 or authorities and the patentee, or, in default of such 
 agreement, on such terms as may be settled by the 
 Treasmy after hearing all parties interested (c) . The 
 same Act provides [</) that every patent granted before 
 the commencement of the Act, or on an application 
 then pending {(■) shall remain unaffected by the pro- 
 
 (y) Stat. 4G & 47 Vict. c. 57, set out in Appendix A., in •wliicli 
 
 8. 116. compliance with these provisions 
 
 {z) Feather v. The Queen, 6 B. & is made a condition of the con- 
 
 S. 257 ; Dixon v. London Small tinuaucc of the letters-patent and 
 
 Arms Companij, I App. Cas. 632. the privileges thereby conferred. 
 
 [a) Stat. 46 & 47 Vict. c. 57. [d] Sect. 45, sub-s. 2. 
 
 {b) Sect. 27, sub-s. 1. (<) The Act commenced immc - 
 
 (c) Sect. 27, sub-s. 2. Seethe diutely after the .'Hst Dec, 1883. 
 form of grant of letters- patent
 
 3S4 
 
 OF INCORPOREAL PERSONAL TROrERTY. 
 
 visions of this Act relating to patents Liudiug tlie 
 Crown. 
 
 Applicatiou The Liw relating to the application for letters-patent 
 
 or im en . ^^^ ^^ invention (./") is now regulated by the Patents, 
 Designs and Trade Marks Act, 1883 [g), and the 
 
 Riteni Office. Patents llules, 1883 (//). The Act provides for the 
 establishment of an office called the Patent Office, 
 
 Coin;)holler. under the control of an officer, called the comptroller 
 general of patents, designs and trade marks, acting 
 under the superintendence and direction of the Board 
 of Trade (/) ; and for the appointment by the Board 
 of Trade, subject to the approval of the Treasury, of 
 
 Examiners, the comptroller and of examiners and other officers 
 and clerks {k) . Under this Act, an application for a 
 patent must be made in the prescribed form and sent 
 to the Patent Office in the prescribed manner (/) ; and 
 must be accompanied by either a provisional or com- 
 
 Specificatioii. plete specification. A provisional specification must 
 describe the nature of the invention, and be accom- 
 panied by drawings, if required (nt). A complete speci- 
 fication, whether left on application or subsequently, 
 must particularly describe and ascertain the nature of 
 the invention, and in what manner it is to be per- 
 formed, and must be accompanied by di-awings, if 
 required (^O- -^^^ ^ specification, whether provisional 
 or complete, must commence with the title, and in 
 the case of a complete specification must end with a 
 distinct statement of the invention claimed (o). If 
 the applicant does not leave a complete specification 
 
 - (/) See ante, p. 375. 
 
 iff) Stat. 46 & 47 Vict. c. 57. 
 
 (A) SeeW. N., 2Gth Jan., 1884, 
 Supplement. 
 
 (0 Stat. 46 & 47 Vict. c. 57, 
 s. 82. 
 
 {k) Sect. 83. 
 
 (!) Sect. 5, sub-ss. 1,2 ; Patents 
 Rides, 1883, Nos. 5—10, 19—21. 
 
 (;«) Sect. 5, sub-s. 3. 
 
 («) Sect. 5, sub-s. 4. 
 
 (o) Sect. 5, sub-s. 5. See Pa- 
 tents Eules, 1883, Nos. 6, 28—31.
 
 OF PATENTS AXD COPYRKUITS. 385 
 
 with his application, he may leave it at any sub- 
 sequent time within nine months from the date of 
 application (p) . Unless a complete specification is left 
 witliin that time tlio application shall be deemed to be 
 abandoned (q). 
 
 The comptroller is required to refer every application rroceedinga 
 to an examiner, who is required to ascertain and report ^^^^^ ^'^'^' 
 to the comptroller whether the natiu-e of the invention 
 has been fairly described, and the application, specifica- 
 tion and drawings (if any) have been prepared in the 
 prescribed manner, and the title sufficiently indicates 
 the subject matter of the invention (r). If the examiner 
 reports in the negative upon any of the matters, which 
 he is so requii'ed to ascertain, the comptroller may 
 require that the application, specification or drawings 
 be amended before he proceeds with the application (.v). 
 Where the comptroller requires an amendment, the 
 applicant may appeal from his decision to the law 
 officer (i*). In and for the purposes of this Act "law Law officer, 
 officer " means her Majesty's Attorney- Greneral or 
 Solicitor- General for England (^/). And it is provided 
 that the law officer shall, if required, hear the ap- 
 plicant and the comptroller, and may make an order 
 determining whether and subject to what conditions, 
 if any, the application shall be accepted (./•) . When 
 an application has been accepted, the comptroller is 
 requu-ed to give notice thereof to the applicant (y) . 
 If after an application has been made, but before a 
 patent has been sealed, an application is made, accom- 
 panied by a specification bearing the same or a similar 
 
 {p) Sect. 8, sub-s. 1. (u) Sect. 117. 
 
 {q) Sect. 8, sub-s. 2. (.r) Sect. 5, sub-s. 3. 
 
 (>•) Sect. 6. {>/) Sect. 5, sub-s. 4 ; Patents 
 
 (.s) Sect. 7, sub-s. 1. Rules, 1883, No. 25. 
 
 {t) Sect. 7, sub-s. 2. 
 
 w.p.r. c c
 
 386 
 
 OF INCORPOREAI, PERSONAl. niOrKllTY. 
 
 title, it is tlio duty of the examiner to report to the 
 comptroller whctlier the specification appears to him to 
 comprise the same invention ; and, if he reports in the 
 affirmative, the comptroller is required to give notice to 
 the applicants that he has so reported (~). Where the 
 examiner reports in the affirmative, the comptroller 
 may determine, subject to an appeal to the law officer, 
 whether the invention comprised in hoth applications is 
 the same, and if so he may refuse to seal a patent on 
 the application of the second applicant {a) . 
 
 "Where 
 
 complete 
 
 specification 
 
 left after 
 
 provisional 
 
 one. 
 
 Where a complete specification is left after a pro- 
 visional specification, the comptroller is required to refer 
 hoth specifications to an examiner for the purpose of 
 ascertaining whether the complete specification has been 
 prepared in the prescribed manner, and whether the 
 invention particularly described in the complete speci- 
 fication is substantially the same as that which is 
 described in the provisional specification (b). If the 
 examiner reports that the conditions contained in the 
 Act have not been complied with, the comptroller may 
 refuse to accept the complete specification unless and 
 until the same shall have been amended to his satis- 
 faction ; but any such refusal is subject to appeal to the 
 law officer (c). And it is enacted that the law officer 
 shall, if required, hear the applicant and the comptroller, 
 and may make an order determining whether and sub- 
 ject to what conditions, if any, the complete specification 
 shall be accepted (d). The Act provides that unless a 
 complete specification is accepted within twelve months 
 from the date of application, then (save in the case of 
 an appeal having been lodged against the refusal to 
 
 (z) Sect. 7, sub-s. 5. 
 («) Sect. 7, sub-s. 6 ; see ante, 
 p. 381. 
 
 {!>) Sect. 9, sub-s. 1. 
 (c) Sect. 9, sub-s. 2. 
 {(l) Sect. 9, sub-s. 3.
 
 OF TATEXTS AX]) f'OPYUICiUTS. 387 
 
 accept) tlie application sliall, at the expiration of those 
 twelve months, become void (c) . 
 
 The Act provides that on the acceptance of the com- Proceedings 
 plete specification the comptroller shall advertise the after accept- 
 
 r L L ^ ^ aiice ot 
 
 acceptance ; and the application and specification or complete 
 specifications with the drawings (if any) shall be open ^^"^''^ 
 to public inspection (_/'). Any person may at any time Opposition to 
 within two months from the date of the advertisement patent" 
 of the acceptance of a complete specification give notice 
 at the Patent Ofheo of opposition to the grant of the 
 patent on the ground of the applicant having obtained 
 the invention from him, or from a person of whom he 
 is the legal representative, or on the ground that the 
 invention has been patented in this country on an appli- 
 cation of prior date, or on the ground of an examiner 
 having reported to the comptroller that the specification 
 appears to him to comprise the same invention as is 
 comprised in a specification bearing the same or a similar 
 title and accompanying a previous application, but on 
 no other ground ( g) . Where such notice is given the 
 comptroller shall give notice of the opposition to the 
 applicant, and shall, on the expiration of those two 
 months, after hearing the applicant and the person so 
 giving notice, if desirous of being heard, decide on the 
 case, but subject to appeal to the law ofFicer(//). The 
 law ofiicer shall, if required, hear the applicant and any 
 person so giving notice and being, in the opinion of the 
 law officer, entitled to be heard in opposition to the 
 grant, and shall determine whether the grant ought or 
 ought not to be made (/). If there is no opposition, or, 
 in- case of opposition, if the determination is in favour 
 of the grant of a patent, the comptroller shall cause a 
 
 {e) Sect. 9, sub-s. 4. (si) Sert. 11, sub-s. 1. 
 
 (/)Sect. 1 ; see Patents Rules, (//) Sect. 11, sub-s. 2. 
 
 1883, Nos. 25, 26. (i) Sect. 11, sub-s. 3. 
 
 cc2
 
 388 OF INCORPOREAT, PERSONAL PROPERTY. 
 
 patent to he sealed "with tlie sc^al of the Patent Office {k). 
 A patent so sealed shall have the same effect as if it 
 Avere sealed witli the great seal of the United King- 
 dom (/). A patent shall be sealed as soon as may he, 
 and not after the expiration of fifteen months from the 
 date of application, except in the following cases, that 
 is to say — (a) Where the sealing is delayed by an 
 appeal to the law officer, or by opposition to the grant 
 of the patent, the patent may be sealed at such time as 
 the law officer may direct, (b) If the person making 
 the application dies before the expiration of the fifteen 
 months aforesaid, the patent may be granted to his 
 legal representative and sealed at any time within 
 twelve months after the death of the applicant {)ii). 
 Every patent shall be dated and sealed as of the day of 
 application : provided that no proceedings shall be taken 
 in respect of an infringement committed before the 
 publication of the complete specification : provided also, 
 that in case of more than one aj)plication for a patent 
 of the same invention (n), the sealing of a patent on 
 one of those applications shall not prevent the sealing 
 of a patent on an earlier application (o) . Every patent 
 may be in the form in the first schedule to the Act {jj), 
 and shall be granted for one invention only, but may 
 contain more than one claim ; but it shall not be com- 
 petent for any person in an action or other proceeding 
 to take any objection to a patent on the ground that it 
 comprises more than one invention (</). 
 
 Provisional Where an application for a patent in respect of an 
 
 invention has been accej^ted, the invention may during 
 the period between the date of the application and the 
 date of sealing such patent be used and published with- 
 
 (A-) Sect. 12, sub-s. 1. (o) Sect. 13. 
 
 [I) Sect. 12, sub-s. 2. (p) This form is set out in Ap- 
 
 {tn) Sect. 12, sub-s. 3. pendix (A). 
 
 («) See ante, p. 385. (q) Sect. 33.
 
 OF PATENTS AND C0PYKK;1LTS. 389 
 
 out prejudice to the patent to Lo granted for the 
 same (r) ; and such protection from the consequences of 
 use and publication is in the Act referred to as pro- 
 visional protection (.s). After the acceptance of a com- Effect of 
 plete specification and until the date of sealing- a patent '^^^'^l^^^ °^ 
 in respect thereof, or the expiration of the time for specification, 
 sealing, the applicant shall have the like privileges and 
 rights as if a patent for the invention had been sealed 
 on the date of the acceptance of the complete specifica- 
 tion : provided that an applicant shall not be entitled to 
 institute any proceeding for infringement unless and 
 until a patent for the invention has been granted to 
 him (t). A patent granted to the true and first inventor Fraudulont 
 shall not bo invalidated by an application in fraud of 
 him, or by provisional protection obtained thereon, or 
 by any use or publication of the invention subsequent 
 to that fraudulent application diuing the period of pro- 
 visional protection (it). 
 
 The preparation and deposit of a proper specification SpecificatioD. 
 has long been the most important condition attached to 
 the grant of letters-patent. The object of requiring a 
 specification is to secure to the public the benefit of the 
 knowledge of the invention after the term granted by 
 the patent shall have expired. The specification was 
 formerly required to be enrolled in the Court of Chan- 
 cery : but after the Patent Law Amendment Act, 
 1852 (.r), it was required to be filed only. The statute 
 of Will. IV. before refeiTcd to contained provisions {//) Disclaimer or 
 which enabled the grantee or assignee of any letters- titk'or speci- 
 patent to enter a disclaimer of any part either of the ficatiou. 
 title of the invention, or of the specification, or to enter 
 
 (r) See ante, p. 379. s. 27. 
 
 (s) Sect. U. (>j) Stat. 5 & C WiU. IV. o. 83, 
 
 (t) Sect. 15. s. 1 ; see also stats. 7 & 8 Vict. 
 
 (m) Sect. 35. c. G9, ss. .3, 6 ; 15 & 16 Vict. c. 
 
 (x) Stat. 15 & IG Vict. c. 83, 83, s. 39.
 
 390 OF INCORPOREAL PERSONAL PROPERTY. 
 
 a memorandum of any alteration in the title or speci- 
 fication, not being such disclaimer or such alteration as 
 should extend the exclusive right granted by the patent. 
 Under these provisions, letters-patent originally void 
 might in many cases be rendered valid, the disclaimer 
 being read as part of the original title or specifica- 
 tion (;:) , The Patents, Designs and Trade Marks Act, 
 1883 {a), repealed all previous enactments relating to 
 the amendment of the title or specification of an inven- 
 Amendmeut tion. By the 18th section of this Act, an applicant or 
 of^speciiica- ^^^ ^^^^^^^ ^^^ ^-^^ ^-^^ -^^-^^ entitled to the benefit of 
 
 a patent {b) may, from time to time, by recjuest in 
 writing left at the Patent Office, seek leave to amend 
 his specification, including drawings forming part 
 thereof, by way of disclaimer, correction, or explana- 
 tion, stating the nature of such amendment and his 
 reasons for the same (c). The request and the nature of 
 such proposed amendment must be advertised in the 
 prescribed manner (f/), and at any time within one 
 month from its first advertisement any person may give 
 notice at the Patent Office of opposition to the amend- 
 ment (e). The questions, whether, and subject to what 
 conditions, if any, the amendment ought to be allowed, 
 are to be determined by the comptroller : but his decision 
 is subject to an appeal to the law ofiicer (/). It is 
 enacted in the same section (g) that no amendment 
 shall be allowed that would make the specification, as 
 amended, claim an invention substantially larger than 
 or substantially different from the invention claimed 
 by the specification as it stood before amendment. 
 
 (z) The Queen v. IfU!, 10 C. B. {b) See sect. 46. 
 
 379; Seed\. Biggins, 8 H. L. C. [c) Sect. 18, sub-s. 1. 
 
 bb<); RalstonY.Smith,\\'K.'L.C. (fZ) See Patents Rules, 1883, 
 223; Canningtony. Xuttall, L. R., No. 48. 
 
 5 H. L. 205. (c) Sect. 18, sub-s. 2. 
 
 [a) Stat. 46 & 47 Vict. c. 57, (/) Sect. 18, sub-ss. 3—7. 
 
 s. 113. [g) Sect. 18, sub-s. 8.
 
 OF PATENTS AND COPYKIGIITS. 391 
 
 Also, that leave to amend shall bo conclusive as to the 
 right of the party to make the amendment allowed, 
 except in case of fraud ; and that the amendment shall 
 in all Courts and for all purposes be deemed to form 
 part of the specification {/i). The provisions of this sec- 
 tion do not apply when and so long as any action for 
 infringement or other legal proceeding in relation to a 
 patent is pending (/). The same Act provides (A-) that, Disclaimer 
 in an action for infringement of a patent, and in a pro- ^"^^°o action, 
 ccoding for revocation of a patent, the Court or a judge 
 may at any time order that the patentee shall, subject 
 to such terms as to costs and otherwise as the Court or 
 a judge may impose, be at liberty to apply at the 
 Patent Office for leave to amend his specification by 
 way of disclaimer, and may direct that in tlie meantime 
 the trial or hearing of the action shall be postponed. 
 It is also enacted (/) that, where any amendment by Damages 
 way of disclaimer, correction or explanation, has been ^^^^^^ amend- 
 allowed under this Act, no damages shall 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. Every amendment of 
 a specification is required to be advertised in the pre- 
 scribed manner (;;;). 
 
 A condition formerly inserted in letters-patent ren- Vesting in 
 dered them void, in case the letters-patent, or the liberty ^"Ji*;.* ^"'^ 
 and privileges thereby granted, should become vested in persons. 
 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. It was enacted in the 
 
 (//) Sect. 18, sul)-s. 9. (0 Sect. 20. 
 
 (i) Sect. 18, sub-s. 9. (»«) Sect. 21; see Patents Rules, 
 
 (Z) Sect. 10. 1883, No. 56.
 
 392 
 
 OF INCOKPOREAL I'EllSONAI. PROrERTV, 
 
 Patent I^aw Amendiiient Act, 1852, that, notwith- 
 standing any proviso that might exist in former letters- 
 patent, it should be lawful for a larger number than 
 twelve persons thereafter to have a legal and beneficial 
 interest in such letters-patent (n). This enactment was 
 repealed by the Patents, Designs and Trade Marks 
 Act, 1883 (o), which now provides (p) that two or more 
 persons may make a joint application for a patent, and 
 a patent may be granted to them jointly. 
 
 Licence to 
 use patent. 
 
 Compulsory- 
 licences. 
 
 In letters-patent a clause is usually contained for- 
 bidding all persons from using the invention without 
 the consent, licence or agreement of the inventor, his 
 executors, administrators or assigns, in writing, under 
 his or their hands and seals, first had and obtained in 
 that behalf (q) . The granting of licences to use a 
 patent is one of the most profitable ways of turning 
 it to account. All licences are now requu-ed to be re- 
 gistered in the registry to be presently mentioned. 
 Under certain circumstances, the person for the time 
 being entitled to the benefit of a patent may now be 
 compelled to grant licences for the use of the invention. 
 For it is enacted in the Patents, Designs and Trade 
 Marks Act, 1883 {>•) that, if on the petition of any 
 person interested it is proved to the Board of Trade 
 that by reason of the default of a patentee to grant 
 licences on reasonable terms (a) the patent is not being 
 worked in the United Kingdom, or (b) the reasonable 
 requirements of the public with respect to the invention 
 cannot be supplied, or (c) any person is prevented from 
 working or using to the best advantage an invention of 
 which he is possessed, the Board may order the patentee 
 
 {n) Stat. 15 & 16 Vict. c. 83, 
 s. 36. See post, the chapter on 
 joint ownership and j oint liability. 
 
 (o) Stat. 46 & 47 Vict. c. 57, 
 8. 113. 
 
 {p) Sect. 4, sub-s. 2. 
 
 {q) See the form of letters- 
 patent in Apijendix (A) . 
 
 (r) Stat. 46 & 47 Vict. c. 57, 
 s. 22.
 
 OF PATENTS AND COPYRIGHTS. 393 
 
 to grant licences on such terms as to tlie amount of 
 royalties, security for payment or otherwise, as tlie 
 Board, having- regard to tlie nature of the invention 
 and the circumstances of the ca.^e, may deem just, and 
 any such order may he enforced by mandamus. But it 
 is provided (s) that every patent granted before the 
 commencement of the Act, or on an application then 
 pending (f), shall remain unaffected by the provisions of 
 the Act relating to compulsory licences. 
 
 Letters-patent obtained in England formerly con- Scotch and 
 f erred an exclusive privilege only within England, "''' ^^ ^" ^' 
 Wales, and the town of Berwick-upon-Tweed ; and also 
 within the islands of Guernse}^ Jersey, Alderney, Sark 
 and Man, and her Majesty's colonies and plantations 
 abroad, if so expressed in the patent. In order to obtain 
 the like exclusive privilege for Scotland, it was necessary 
 to obtain separate letters-patent under the seal appointed 
 by the treaty of union to be used instead of the great 
 seal of Scotland ; and in the same manner the like pri^i- 
 lege for Ireland was required to be obtained by letters- 
 patent under the great seal for Ireland. But it was 
 provided by the Patent Law Amendment Act, 1852, 
 that letters-patent should extend to the whole of the 
 United Kingdom of Great Britain and Ireland, the 
 Channel Islands, and the Isle of 'Man ; and, in case 
 the warrant for granting the patent should £o direct, 
 such letters-patent should be made applicable to her 
 Majesty's colonics and plantations abroad, or such of 
 them as may be mentioned in such warrant (n). This 
 enactment was repealed by the I'atcnts, Designs and 
 Trade Marks Act, 1883 (.r), which now provides (//) that 
 
 («) Sect. 45, sub-s. 2. (.») Stat. 46 & 47 Vict. c. 57, 
 
 {() See ante, p. 383, n. (r). s. 113. 
 
 (;/) Stat. 15 & 16 Vict. c. 83, (y) Sect. 16. 
 
 18.
 
 394 
 
 OF INCORPOllKAL TERSONAT- PROPERTY, 
 
 every patent wlieii sealed sli;ill have effect tliroughout 
 the United Kingdom and the Isle of Man. 
 
 Assignment Letters-patent and the privileges thereby granted are 
 patent. freely assignable from one person to another, and the 
 
 assignee by such assignment is placed in the same posi- 
 tion as his assignor previously stood. The assignee may 
 consequently bring in his own name the same actions 
 and suits both at law and in equity against those who 
 have infringed upon the patent as the patentee himself 
 might have done (c) . The privileges granted by letters- 
 patent are therefore plainly an instance of an incorpo- 
 real kind of personal property, different in its nature 
 from a mere cJione in action, which formerly Avas not 
 As to the assignable at law {(i) . A deed is said to be necessary 
 deer'*^°* ^ for the valid legal assignment of letters-patent ; but the 
 author was not aware of any authority for this position ; 
 and the general rule appears to be, that the assignment 
 of incorporeal personal property may be made without 
 deed. Perhaps, however, the necessity of an assign- 
 ment by deed may be implied from the clause in the 
 letters-patent, which forbids the use of the invention 
 " without the consent, licence or agreement of the said 
 
 {z) Godson on Patents, 237 ; 
 Walton V. Lavatcr, 8 C. B., N. S. 
 162. 
 
 (rt) As to the classification of 
 the right conferred by a patent 
 as incorj3oreal personal property, 
 see the editor's note to p. 324, 
 ante. The privilege conferred by 
 a grant of letters-patent for an 
 invention is a right, -which avails 
 against all the vrorld. In this 
 respect it is similar to the right 
 of ownership or property. The 
 right of ownership however is 
 always enjoyed in respect of some 
 particular subject— for instance, 
 
 land, cattle or coined money. But 
 the right conferred by a patent 
 has no particular subject, over 
 which it may be exercised ; see 
 Austin on Jurisprudence, pi^. 48, 
 400, 986, 4th ed. It is sub- 
 mitted that the essential differ- 
 ence between the right conferred 
 by a patent and the right called 
 a chose in action is, that the former 
 is a right, which avails against 
 all the world, whilst the latter is 
 among the rights, which avail 
 only against particular persons. 
 — Editor's note.
 
 OF TATENTS AND COI'VRIGHTS. 395 
 
 patentee in writing under his liaud and seal.'' It is 
 now enacted {h) that a patentee may assign his patent 
 for any place in or part of the United Kingdom or Isle 
 of Man, as effectually as if tlie patent were originally 
 granted to extend to that place or part only. All 
 assignments of letters-patent were required to be re- 
 gistered by the Patent Law Amendment Act, 1852 (r) ; 
 and are now required to be registered by the Patents, 
 Designs and Trade Marks Act, 1883 [d). 
 
 This xVct provides that there shall be kept at the Register of 
 Patent Office a book called the Register of Patents, ^* ^^ ^' 
 wherein shall be entered the names and addresses of 
 grantees of patents, notificatious of assignments and of 
 transmissions of jiatents, of licences under patents, and 
 of amendments, extensions, and revocations of patents, 
 and such other matters affecting the validity or pro- 
 prietorship of patents as may from time to time be 
 prescribed (c) ; that the register of patents shall be 
 jyriind facie evidence of any matters by this Act directed 
 or authorized to be inserted therein (/) ; and that copies 
 of deeds, licences, and any other documents affecting the 
 proprietorship in any letters-patent or in any licence 
 thereunder, must be supplied to the comptroller in the 
 prescribed manner for filing in the Patent Office {g). 
 It is also enacted in the same Act that, where a Registered 
 person becomes entitled by assignment, transmission of patent!* 
 or other operation of law to a patent, the comptroller 
 shall on request, and on proof of title to his satisfac- 
 tion, cause the name of such person to be entered as 
 proprietor of the patent in the register of patents ; and 
 that the person for the time being entered in the register 
 
 {b) Stat. 4G & 47 Vict. c. 57, sees. 114, sub-s. 1. 
 
 8. 36. {(■) Sect. 23, sub-s. 1. 
 
 (r) Stat, lo & IG Vict. c. 83, (/) Sect. 23, sub-s. 2. 
 
 s. 35. (y) Sect. 23, sub-s. 3. See 
 
 {(l) Stat. 46 & 47 Vict. c. 57; Patents Rules, 1883, Nos. 64— 76.
 
 396 
 
 OF IXCOIU'OIIKAI, PERSOXAI. I'KOl'KinV, 
 
 of patents, as proprietor of a patent, shall, subject to 
 any rights appearing from such register to be vested 
 in any other person, have power absolutely to assign, 
 grant licences as to, or otherwise deal with, the same, 
 and to give effectual receipts for any consideration for 
 such assignment, licence or dealing. But it is provided 
 that any equities in respect of such patent may be 
 enforced in like manner as in respect of any other 
 personal property (//). The register of patents is re- 
 quired to be open to the insj)ection of the public ; 
 and certified copies of any entry in such register may 
 be obtained (/). 
 
 Improve- 
 ments in 
 instiniments 
 or munitions 
 of war. 
 
 Special provision is made in the same Act (Jc) with 
 regard to the assignment to the Secretary of State for 
 War, on behalf of the Crown, of the benefit of any 
 improvement 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 should 
 certify that secrecy is desirable in the interest of the 
 public service. 
 
 International 
 protection of 
 inventions. 
 
 Colonies and 
 India. 
 
 By section 103 of the same Act, if any arrangement 
 shall be made with the government of any 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 to a patent for his inven- 
 tion, imder and subject to the conditions of the Act, in 
 priority to other applicants. The Crown may, by order 
 in council, apply the provisions of this section to any 
 British possession (/), of which the legislature has made 
 satisfactory provision for the protection of inventions 
 patented in this country (m). 
 
 (h) Sect. 87. 
 
 (i) Sect. 88. SeePatentsRules, 
 1883, Nos. 4, 75, 76, and First 
 Schedule. 
 
 (/.-) Sect. 44. 
 
 (l) See sect. 117. 
 
 (;;?) Sect. 104.
 
 OF PATENTS AND COPYRIGHTS. 397 
 
 The remedy of a patentee for an infringement of bis lufiingemcnt 
 patent is to bring an action against the wrong-doer, ° '■^^ ^^ ' 
 claiming an injunction, to restrain bim from further 
 infringement, and damages {it). Such actions are gene- 
 rally (but not necessarily) commenced in the Chancery 
 Division (o). If the patentee establish his claim, he 
 may elect whether he will have a decree for an inquiry, 
 as to the damage which he has sustained, and payment Damages, 
 of the Jimount so assessed, or a decree for an account Account of 
 and payment of the profits made out of the infringe- ^^° ^' 
 ment of bis patent (p). Actions for the infringement 
 of a patent are now subject to the special regula- 
 tions contained in the Patents, Designs and Trade 
 Marks Act, 1883 (q). 
 
 Revocation of a patent may now be obtained under Revocation of 
 the Patents, Designs and Trade Marks Act, 1883 {>•), on P^*^''*" 
 petition presented to the High Court of Justice (-s) by 
 (1) the Attorney-Greneral in England or Ireland, or the 
 Lord Advocate in Scotland ; (2) any person authorized 
 by the Attorney-General in England or Ireland, or the 
 Lord Advocate in Scotland ; (3) any person alleging 
 that the patent was obtained in fraud of his rights, or 
 of the rights of any person under or through whom he 
 claims ; (4) any person alleging that he, or any person 
 under or thi-ough whom he claims, was the true inventor 
 of any invention included in the claim of the patentee ; 
 or (5) any person alleging that he, or any person under or 
 through whom he claims an interest in any trade, busi- 
 ness, or manufaetm^e, had publicly manufactured, used, 
 or sold, within this realm, before the date of the patent, 
 anything claimed by the patentee as his invention. 
 
 {)/) See Rules of the Supreme II. L. 1, 22; iJe Vitre v. Belts, 
 
 Court, 1883, Appendix A., Part L. R., 6 H. L. 319. 
 
 III., sect. 4 ; Appendix C, sect. [q) Stat. 46 & 47 Vict. c. 57, 
 
 6, No. 6. ss. 28—31, 43, 107—112, 117. 
 
 (o) ^eeante, pp. 99, 100. (;•) Stat.46&47Vict.c.57, s. 26. 
 
 [p) Ne'dson v. Belts, L. R., 5 (s) See sect. 117.
 
 398 
 
 OF INCOllPOKEAL TERSONAL PROl'ERTY. 
 
 Copyright. 
 
 Present Act. 
 
 Extension of 
 
 existing 
 
 copyrights. 
 
 Closely connected with tlie subject of patents is tliat 
 of copyright. Copyright may be defined to be the ex- 
 clusive right of multiplj'ing copies of an original work 
 or composition {t). From the nature of this right it 
 must almost necessarily have had its origin at a period 
 subsequent to the invention of the art of printing. It 
 is, however, the better opinion that such a right existed 
 prior to the Statute of Anne («), by which the term of 
 an author's copyright was first limited by the legis- 
 lature (r). But this statute, together with others by 
 which the copyright of authors was further secured (r), 
 was repealed by the Act of the year 1842 to amend the 
 law of copyright, on which the law of copyright now 
 depends ( !/) . By this Act the copj'right of every book 
 (which term includes for the purposes of the Act every 
 pamphlet, sheet of letterpress, sheet of music, map, 
 chart or plan) published after the passing of the Act in 
 the lifetime of the author shall endure for his natural 
 life, and for the further term of seven years from his 
 death, and shall be the property of such author and his 
 assigns ; but if the term of seven years shall expire 
 before the end of forty-two years from the first publica- 
 tion of the book, the copyright shall in that case endure 
 for such period of forty-two years ; and the copyright 
 in every book published after the death of its author 
 shall endure for forty-two years from the first publica- 
 tion thereof (c). By the same Act the existing copy- 
 right in books then published was extended, subject to 
 the conditions of the Act, for the full term provided by the 
 Act in the case of books thereafter published (a) . And 
 in order to provide against the suppression of books of 
 
 [t) 14 M. & W. 316. 
 
 (}i) 8 Anne, c. 19. 
 
 {v) Miller v. Taylor, 4 Burr. 
 2303 ; Donaldson v. Beckett, 4 
 Burr. 2408; 2 Bro. P. C. 129; 
 Boo.'<e!/y.JeJ'er7/fi, G'Exch. Rep. 592. 
 
 {z) Stats. 41 Geo. III. c. 107 ; 
 54 Geo. III. c. 156. 
 
 (y) Stat. 5 & 6 Vict. c. 45. 
 {z) Sect. 3. 
 (a) Sect. 4.
 
 OF PATENTS AXD COPYllU.IITS. 309 
 
 importance to the piiLlic, tlie Judicial Committee of the 
 Privy Couucil are authorized, on complaint made to 
 them, that the proprietor of the copyright in any book, 
 after the death of its author, has refused to allow its 
 republication, to grant a licence to the complainant to 
 publish the book in such manner and subject to such 
 conditions as they may think fit (b). And with regard Encyclopse- 
 to encyclopcedias, reviews and other periodical works, it re'^ewe &c. 
 is provided, that the copyright in every article shall 
 belong to the proprietor of the work for the same term 
 as is given by the Act to authors of books, whenever 
 any such article sliall have been or shall be composed 
 on the terms that the copyright therein shall .belong to 
 sucli proprietor and be paid for by him (r) ; but pay- 
 ment must be actually made by the proprietor before 
 the copyright can vest in him (d) ; and after the term 
 of twenty-eight years from the first publication of any 
 such article, the right of publishing the same in a sepa- 
 rate form shall revert to the author for the remainder 
 of the term given by the Act ; and during such term of 
 twenty-eight years the proprietor shall not publish any 
 such article separately without previously obtaining the 
 consent of the author or his assigns. But any author 
 may reserve to himself the right to publish any such 
 composition in a separate form, and he will then be 
 entitled to the copyright in such composition when 
 published separately, witliout prejudice to the right of 
 the proprietor of the encycloptedia, review or other 
 periodical in which it may have first appeared (e). 
 
 . A statute of Will. IV. provides (/) that the author Dramatic 
 
 works and 
 
 [b) Sect. 5. {(l) Richardson v. Gilbert, 1 
 
 {c) See Bishop of Hereford v. Siin., N. S. 336. 
 
 Griffin, 16 Sim. 190 ; Sweet v. (c) Stat. 5 k 6 Vict. c. 45, 
 
 Beyining, 16 C. B. 459 ; Henderson s. 18. 
 
 V. Maxwell, 4 Ch. D. 163 ; 5 Ch. (/) Stat. 3 & 4 Will. IV. c. 15, 
 
 D. 892; Walter v. Howe, 17 Ch. s. 1. See Morton v. Copcland, 16 
 
 D. 708. C. B. 517; Marsh v. Conquest, 17
 
 400 OF INCORrORE.VT, PERSONAL PROPERTY. 
 
 musical com- of any dramatic piece, or liis assignee, shall have as his 
 pohi ions. ^^^^^^ property the solo liberty of representing the same 
 at any place of dramatic entertainment for the term 
 therein specified. It is enacted in the Copyright Act 
 of 1842 (r/) that the provisions of the said Act of Will. 
 ly. and of that Act shall apply to musical composi- 
 tions, and that the sole liberty of representing or per- 
 forming any dramatic piece or musical composition 
 shall endure and be the property of the author thereof 
 and his assigns for the term in that Act provided for 
 the duration of copyi-ight in books (A). The result of 
 the decisions upon the construction of these enactments 
 appears to be that what is thereby secured to the 
 author and his assigns is the sole liberty of repre- 
 senting or performing any dramatic piece or musical 
 composition in public (/). If the author of a dramatic 
 piece or musical composition publish the same as a 
 book (/i), he may secure for himself the exclusive right 
 of representation or performance, in addition to the 
 copyright in the book (/). The Copyright (Musical 
 Compositions) Act, 1882 [m) now requires every person, 
 who shall be entitled to and desirous of retaining the 
 right of representation or performance of any musical 
 composition first published after the passing of the 
 Act {n), to take the steps therein specified to procure 
 a notice, to the effect that the right of public repre- 
 sentation or performance is reserved, to be printed on 
 every published copy of such musical comjjosition. 
 
 C. B., N. S. 418; 12 W. E. 1006; Sim. 181 ; 12 Q. B. 217; Wall v. 
 
 Lacy V. Rhys, 4 Best & Smith, Taylor, 9 Q. B. D. 727; 11 Q. B. 
 
 873; Chatterton v. Cave, L. E., D. 102; Buck v. Bates, 12 Q. B. 
 
 10 C. P. 572 ; Taylor v. Keville, D. 79 ; affirmed in C. A., 32 W. 
 
 C. A., 26 W. E. 299 ; Duc/c v. E. 813. 
 
 Bates, 12 Q. B. D. 79 ; affii-med, (/.) See ante, p. 398. 
 
 32 W. E. 813. (0 See Chappell v. Boosey, 21 
 
 [(]) Stat. 5 & 6 Vict. c. 45, s. Ch. D. 232. 
 
 20. (in) Stat. 45 & 46 Vict. c. 40. 
 
 (A) Ante, p. 398. («) The Act received the royal 
 
 (i) See Russell v. Smith, 15 assent on the 10th Aug., 1882.
 
 OF PATENTS AND COPYRIGHTS. 401 
 
 It was deeidecl, uuder the Statute of Anue, that a Foreigner, 
 foreigner residing abroad was not entitled to the copy- 
 right of any work composed by him and first published 
 in this country (o). But it has been held that, under 
 the Act of the present reign, a foreigner residing in 
 England or in a British colony at the time of the first 
 publication of his work is entitled to the copyright (7;). 
 And, in the case in which this was decided, two learned 
 judges, Lords Westbmy and Cairns, expressed a decided 
 oj)inion that, under the present Act, a foreigner residing 
 abroad was entitled to copyright of a work composed by 
 him and first published in this country. This opinion 
 was, however, doubted by Lords Cranworth and Chelms- 
 ford ((/) . 
 
 By the CopjTight Act of 1842 a book of registry is Registry of 
 required to be kept at Stationers' Hall, open to public copyrights. 
 inspection on payment of a small fee, in which may be 
 registered the proprietorship and assignment of copy- 
 rights (r). And no proprietor of copyright in any book 
 which shall be first published after the passing of the 
 Act can maintain any action or suit at law or in equity, 
 or any summary proceeding, in respect of any infringe- 
 ment of such copyright, unless he shall, before com- 
 mencing such action, suit or proceeding, have caused 
 such book to be registered pm-suant to the Act ; but the 
 omission to register will not affect the coj)yriglit in the 
 
 (0) Jefferys v. liooscij, H. of Davidnon, 18 C. B. 297 ; Kv parte 
 
 Lords, IJur., N. S. 615; 4 H. Davidson, 2 E. & B. 577, qu.? 
 
 of L. Cas. 815. The day of first publication must 
 
 (/>) Zowv. Eoui!cdffe,Y.-C.I\.., be stated. Mathieson x. Ilarrod, 
 
 10 Jur., N. S. 922 ; affirmed, 11 V.-O. M., Law Rep., 7 Eq. 270; 
 
 Jur., N. S. 939; Law Rep., 3 H. Fa^e v. JFisdcn, V.-C. M., 17 W. 
 
 of L. 100. R. 483 ; Henderson v. Maxwell, 5 
 
 {q) See Low v. RouiUdgc, ubi Ch. D. 892 ; Wddon v. Bkks, 10 
 
 sup. Ch. D. 247 ; Coote\. Jiidd, 23 Ch. 
 
 (>•) Stat. 5 & 6 Vict. c. 45, D. 727. 
 88. 11, 13, 19, 20. See £.t parte 
 
 W.P.P. I) u
 
 402 
 
 or IXCOJU'OKEAI. TKllSOXAI, PIIOPERTY. 
 
 Assignment. 
 
 Writinc 
 
 book, Lut only the right to .sue or proceed in respect 
 of the infringement thereof. And the remedies of the 
 projirietors of the sole liberty of representing any dra- 
 matic piece under the above-mentioned Act of Will. IV. 
 are not to be prejudiced, although no entry shall be 
 made in the register book(.s). And every registered 
 proprietor is empowered to assign his interest by making 
 entry in the book of registry of such assignment and of 
 the name and place of abode of the assignee, in the form 
 
 given in a schedule to the Act : 
 
 and such assignment so 
 
 entered is declared to be effectual in law to all intents 
 and pm-poses whatsoever, without being subject to any 
 stamp or duty, and to be of the same force and effect as 
 if such assignment had been made by deed (t). But if 
 the right of representing any dramatic piece or per- 
 forming any musical composition is intended to pass to 
 the assignee of the copyright, an entry must be expressly 
 made of such intention (u). If not made by entry in 
 the book of registry under the Act, the assignment of a 
 copyright must be made in -wTiting (,r) . 
 
 Copyrights to 
 be personal 
 property. 
 
 The Act also expressly provides, that all copyrights 
 protected by the Act shall be deemed personal property, 
 and shall be transmissible by becjuest ; or, in case of in- 
 testacy, shall be subject to the same laws of distribution 
 as other personal property (?/). 
 
 Importation In Order to give more effectual protection to jjersons 
 
 reprints' of entitled to the copyright of books, it is also provided 
 books entitled fj^at no pcrson, not beino- the proprietor of the copyright, 
 
 to copyright. ^ .1 • n 1 • • i. -i 
 
 or some person authorized by him, may import into any 
 part of the United Kingdom, or into any other part of 
 the British dominions, for sale or hire any printed book 
 first composed or written or printed and j)ublished in 
 
 (a) Stat. 5 & 6 Vict. c. 45, s. 24. 
 (0 Sect. 13. 
 («) Sect. 22. 
 
 (x) LeyJand v. Stewart, 4 Ch. 
 D. 419. 
 
 [>j) Stat. 5 & evict, c. 4(3,8.25.
 
 OF PATENTS AND COPYRIGHTS. 403 
 
 any part of the United Kingdom, wlierein there shall be 
 copyright, and reprinted in any country or place what- 
 soever out of the British dominions (~). And by sub- 
 sequent Acts(r/), books, wherein the copyright is subsist- 
 ing, first composed or WTitten or printed in the United 
 Kingdom, and printed or reprinted in any other country, 
 are absolutely prohibited to be imported either into the 
 United Kingdom or into the British possessions abroad, 
 provided the proprietor of such copyi-ight, or his agent, 
 shall have given notice in WTiting to the commissioners 
 of customs that such copyright subsists, and in such 
 notice shall have stated when the copyright will expire. 
 But by another Act (/>) it is provided, that in case the 
 proper legislative authorities in any British possession 
 shall make any Act or ordinance to make due provision 
 for secm'ing the rights of British authors in such pos- 
 session, her Majesty, on the same being transmitted to 
 the Secretary of State, may, if she think fit so to do, 
 express her royal approval of such Act or ordinance, and 
 thereupon may issue an order in council declaring that, 
 so long as the provisions of such Act or ordinance con- 
 tinue in force within such colony, the prohibitions con- 
 tained in the above-mentioned Acts, or in any other Acts, 
 with respect to foreign reprints of books first composed, 
 ■\\Titten, printed or published in the United Kingdom, 
 and entitled to copyright therein, shall be suspended so 
 far as regards such colony ; and thereupon such Act or 
 ordinance shall come into operation, except so far as 
 may be other"s^•ise provided therein, or as may be other- 
 wise directed by such order in council (c). 
 
 By Acts of parliament of an older date, copyright has Copyright in 
 
 priutH, maps, 
 &c. 
 («) Sect. 17. ((■) Several British colonics have 
 
 (a) Stats. 8 & 9 Vict. c. 93, obtained Orders in Council under 
 
 B. 9 ; and 16 & 17 Vict. c. 107, this Act. See 6 Jur., N. S. pt. 2, 
 
 ss. 44, 160. p. 45. 
 
 (i) Stat. \0 k II Vict. c. 95. 
 
 I) 1) 2
 
 404 OF INCORPOREAL PERSONAL PROPERTY. 
 
 also been created in prints, engravings, maps, charts 
 and plans for the term of twenty-eight years, to com- 
 mence from the day of first pnblishing thereof ; which 
 day, together with tlie proprietor's name, is to be truly 
 engraved on each plate, and printed on every print [d). 
 But these Acts do not apply to illustrative wood en- 
 gravings printed on the same sheet as the letter-press 
 of a book, as such engravings form part of the book 
 and are comprised within its copyright [c] . And as the 
 Act to amend the law of copyright (/) extends to maps, 
 charts and plans, it has been held that every map, chart 
 or plan must be registered at Stationers' Hall {(j) before 
 any action or suit can be maintained for infringement 
 of the copyright (//). The above-mentioned Acts em- 
 power the assignee of the copjTight to bring an action 
 in his own name against any person who may pirate 
 \t{i). And by a modern statute (^•) all the provisions 
 contained in these Acts are extended to the United 
 Kingdom of Grreat Britain and Ireland. And it is 
 provided (/), that if any person shall, during the exis- 
 tence of the copyright, engrave, etch or publish any 
 engraving or print of any description whatever, either 
 in whole or in part, already published in any part of 
 Great Britain or Ireland, "s\dthout the express consent 
 of the proprietor or proprietors thereof first obtained in 
 writing signed by him, her or them respectively, with 
 his, her or their own hand or hands, in the presence of 
 
 [d) Stat. 8 Geo. II. c. 13, (/) Stat. 5 & 6 Vict. c. 45 ; 
 
 amended by 7 Geo. III. c. 38, ante, p. 398. 
 
 and rendered more effectual by {g) Ante, p. 401. 
 
 17 Geo. III. c. 57; Gambart v. {h) Stannard\. Lee, Law Hep., 
 
 Sumner, 5 H. &N. 5; Gambart v. 6 Ch. Ap. 346. See Stannard v. 
 
 Ball, \iC.'B.,'S.^.ZQQ; Graves Barrison, V.-C. B., 19 W. E. 
 
 \. A&hford, Law Rep., 2 C. P. 811. 
 
 410. (j) Thom2)son \. Symonds, 5 T. 
 
 {e) Bogue v. Houlsion, 5 De Hep. 41. 
 
 Gex & Smale, 267 ; S. C., 16 Jur. (/.) Stat. 6 & 7 WiU. IV. c. 59, 
 
 272. e. 1. 
 
 {I) Sect. 2.
 
 OF PATENTS AND COPYRIGHTS. 406 
 
 and attested by two or more credible witnesses, then 
 every such proprietor may, by a separate action upon 
 the case, to be brought against the person so offending, 
 in any Court of law in Great Britain or Ireland, recover 
 such damages as the jury shall assess, together with 
 double costs of suit. By a more recent Act it is declared 
 that the provisions of the above-mentioned statutes are 
 intended to include prints taken by lithography, or any 
 other mechanical process by whicli prints or impressions 
 of drawings or designs are capable of being multiplied 
 indefinitely {m). 
 
 By other Acts of parliament copyright has been Copyriglit in 
 granted to the makers of new and original sculptures, ^^^P*^^^' 
 models, copies and casts for the term of fourteen years 
 from their first putting forth or publishing the same («), 
 witli a further term of fourteen years to the original 
 maker, if he shall be then living (o), provided that in 
 every case the proprietor cause his name, with the date, 
 to be put on every such sciJpture, model, copy or cast 
 before the same shall be put forth or published (j)) . 
 And it is also provided that no person who shall purchase 
 the right or property of auy such sculpture, model, 
 cojiy or cast of the proprietor, expressed in a deed in 
 writing signed by him with his own hand, in the pre- 
 sence of and attested by two or more credible witnesses, 
 shall be sul)ject to any action for copjang, casting or 
 vending the same (</). By the Designs Act, 1850 (r), 
 provision was made for the registration of sculptures, 
 models, copies and casts within the protection of the 
 Sculpture Copyright Acts, which registration entitled 
 the proprietor of the copyright to certain penalties in 
 
 (/») Stat. 15 & 16 Vict. c. 12, s. 6. 
 s. 14. (p) Sect. 1. 
 
 («) Stat. 38 Geo. III. c. 71, (q) Sect. 4. 
 
 amended by 54 Geo. III. c. 56. (r) Stat. 13 & 14 Vict. c. 104, 
 
 (o) Stat. 54 Geo. III. c. 56, e. 6.
 
 406 OF INCORPOREAL PERSONAL PROPERTY. 
 
 case of piracy (.s). But this Act has been repealed (^). 
 Taintings, And witli regard to paintings, drawings and plioto- 
 photog?aphT! graphs, it is now provided that the exclusive right of 
 copying, engraving, reproducing and multiplying them 
 by any means, and of any size, shall belong to the 
 author (/^), being a British subject or resident within 
 the dominions of the Crown, for the term of his life and 
 seven years after his death (x). And a register of pro- 
 prietors of copyright in paintings, di-awings and litho- 
 graphs is established at Stationers' Hall, subject to 
 similar regulations to that established for the registry 
 of copyright in books {//). 
 
 International By an Act 01 parliament passed to amend the law of 
 copyright. international copyright (~), her Majesty is empowered 
 by any order in council to grant the privilege of copy- 
 right for such period as shall be defined in such order 
 (not exceeding the term allowed in this country), to the 
 authors, inventors and makers of books, prints, articles 
 of sculpture and other works of ai-t, or any particular 
 class of them, to be defined in such order, which shall, 
 after a future time to be specified in such order, be first 
 published in any foreign country, to be named in such 
 order. And her Majesty is also empowered (a) by any 
 order in council to direct that the authors of di^amatic 
 pieces and musical compositions, which shall, after a 
 future time to be specified in such order, be fii'st pub- 
 licly represented or performed in any foreign country to 
 be named in such order, shall have the sole liberty of 
 
 (4) Stat. 13 & M Vict. c. 104, {>/) Sects. 4, 5, cniti; p. 401 
 
 8. 7. i> JMrte Beal, 9 B. & S. 395 
 
 [t] By stat. 46 & 47 Vict. c. 57, Law Eep., 3 Q. B. 387 ; Graves 
 
 s. 113. case, Law Rep., 4 Q. B. 715. 
 
 [u) As to the question, who is {z) Stat. 7 & 8 Vict. c. 12, ss. 2, 
 
 the *'author"of ai>hotograph,see 3,4, extended to paintings, draw- 
 
 Kottage v. Jackson, 11 Q. B. D. 627. ings and photographs by stat. 25 
 
 {x) Stat. 25 & 26 Vict. c. 68, & 26 Vict. c. 68, s. 12. 
 
 8. 1. («) Stat. 7 & 8 Vict. c. 12, s. 5.
 
 OF PATKXTS AND COPYRIGHTS. 407 
 
 representiug or performing in any part of the British 
 dominions such di-amatic pieces or musical compositions 
 during- such period as shall be defined in such order, not 
 exceeding the period allowed in this country. Provision 
 however is made for the entry of proper particulars of 
 the subjects for which copyrights shall be granted in 
 the register book of the Stationers' Company in London, 
 within a time to be prescribed in each such order in 
 council {h). And all copies of books wherein there shall 
 be any subsisting copyright by virtue of this 7^ct, or of 
 any order in council made in pursuance thereof, printed 
 or reprinted in any ft)rcign country, except that in 
 which such books were first published, are absolutely 
 prohibited to be imported into any part of the British 
 dominions, except with the consent of the registered 
 proprietor of the copyright thereof, or his agent autho- 
 rized in writing (c). But no such order in council 
 shall have any effect unless it shall be therein stated as 
 the ground for issuing the same, that due protection 
 lias been secured by the foreign j)ower named in such 
 order in council for the benefit of parties interested in 
 works first published in the dominions of her Majesty, 
 similar to those comprised in such order (r/). And 
 every such order in council is to be published in the 
 London Gazette as soon as may be after the making 
 thereof, and from the time of such publication shall 
 have the same effect as if every part thereof were 
 included in the Act {c). And no copyright is allowed 
 to any book, dramatic piece, musical composition, print, 
 article of sculpture or other work of art, first published 
 out of her Majesty's dominions, otherwise than under 
 this Act (/). A convention under this Act has already 
 been eifected with France, the stipidations of which 
 
 {!>) Sects. G, 7, 8, 9 ; CasscH v. (d) Sect. 14. 
 
 Stif, 2 K. & J. 279 ; Fairlie v. (t) Sect. 15. 
 
 Boosnj, 4 App. Gas. 711. (/) Sect. 19; Boiicicaidty.Chaf- 
 
 {c) Sect. 10. (irlo)/, 5 Ch. D. 267.
 
 408 OF l^^CORPOREAL PERSONAL PROPERTY. 
 
 have been confirmed by Act of parliament {(/). And 
 the provisions of the International Copyright Act have 
 been extended to authorized translations of foreign 
 books for a term not exceeding five years from the first 
 publication of such translations (//) ; also to authorized 
 translations of foreign dramatic pieces for a term not 
 exceeding five years from the time at which the autho- 
 rized translations are first published or publicly repre- 
 sented (/), But the sixth section of the Act provides 
 that nothing therein contained shall be so construed as 
 to prevent fair imitations or adaptations to the English 
 stage of any dramatic piece or musical composition 
 New enact- published in any foreign country (/.•) . With respect to 
 this last provision it is now enacted (/), that in any 
 case in which, by virtue of these enactments, any order 
 in council has been or may hereafter be made for the 
 purpose of extending protection to the translations of 
 dramatic pieces first publicly represented in any foreign 
 country, it shall be lawful for her Majesty, by order in 
 council, to direct that the sixth section of the said Act 
 shall not apply to the dramatic pieces to which protec- 
 tion is so extended ; and thereupon the said recited Act 
 shall take effect with respect to such dramatic pieces, 
 and to the translations thereof, as if the said sixth 
 section of the said Act were thereby repealed. 
 
 By an Act of the reign of Kmg William IV., it was 
 provided, that no person should print or publish any 
 newspaper before delivering at the Stamp Office a 
 declaration containing, amongst other things, the true 
 name, addition and place of abode of the printer and 
 publisher, and of every proprietor resident out of the 
 United Kingdom, and also of every proprietor resident 
 in the United Kingdom, if their number should not 
 
 {(/) Stat. 15 & 16 Vict. c. 12. (/.) Sect. 6. 
 
 (h) Sects. 1, 2, 3, 4. (/) Stat. 38 Vict. c. 12. 
 
 (i) Sects. 4, 5.
 
 oi-' i'ate>;ts and copyrights. 409 
 
 exceed two, exclusive of the printer and puLlisher ; and 
 if their number should exceed two, then the names of 
 two of the proprietors were to be given, the amount of 
 whose shares sliould not be less tlian the share of any 
 other proprietor resident in the United Kingdom, ex- 
 clusive of the printer and publisher ; and the amount 
 of their shares was required to be specified (;;?). But 
 this Act has been repealed (ii). The Newspaper. Libel 
 and Registration Act, 1881 (o), established a register of 
 the proprietors of newspapers, and requires (jj) the 
 names of all the proprietors (q) of every newspaper (>•), 
 together with their respective occupations, places of 
 business (if any) and places of residence to be annually 
 returned by the printers and publishers thereof, and to 
 be entered in the register. This Act does not atfect CopjTight in 
 the copyright in newspaper articles. It appears that artlcles^*^^ 
 the proprietor of a newspaper must comply with the 
 requirements of the Copyright Act of 1842 (.s) in order 
 to secure for himself the copyright in any article 
 published in his newspaper (t). 
 
 By statutes of the present reign a copyright was Designs for 
 granted to designs for articles of manufacture for the manuiacture 
 term of three years, one year, or nine calendar months, 
 according to the nature of the manufacture (ii). All 
 designs to be protected by these Acts were required to 
 be registered (.r) ; and provision was also made for the 
 
 [m) Stat. 6 & 7 Will. lY. c. 7G, [t) Walter v. Moicc, Jessel, M. 
 
 s. G. R., 17 Ch. D. 708: contra, Cox 
 
 {>i) Stats. 32 & 33 Vict. c. 24, v. Land cj- Water, Malins, V.-C, 
 
 and 33 & 34 Vict. c. 99. L. R., 9 Eq. 324. 
 
 (o) Stat. 44 & 45 Vict. c. GO, (») Stat. 5 & 6 Vict. c. 100, by 
 
 8. 8. which all the previous statutes 
 
 (;;) Sects. 9 — IG. were consolidated, and 6 & 7 Vict. 
 
 [q) See sects. 1, 7. c. 65; 21 k 22 Vict. c. 70; 24 & 
 
 (>•) See sect. 1. 25 Vict. c. 73. 
 
 (s) Stat. 5 k 6 Vict. c. 45, (.r) Stat. G .^- 7 Vict. c. Go, .ss. 
 
 63. 18, 24 ; see ante, pp. 399, 7, 8, 9. 
 401.
 
 410 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Patents, 
 Designs and 
 Trade Marks 
 Act, 1883. 
 
 transfer of the copyright in such designs by any writing 
 purporting to be a transfer, and signed by the pro- 
 prietor, and also for the registration of transfers in a 
 prescribed form (//). These Acts were extended and 
 amended by the Coj)yright of Designs Act, 1850 (c), 
 which provide for the " provisional registration " of 
 designs for the term of one year, and empowered the 
 Board of Trade to extend the copyright in ornamental 
 designs for such term, not exceeding the additional term 
 of three years, as the board might think fit [a) . A 
 more recent statute extended the copyright to certain 
 ornamental designs (i), and provided for the registra- 
 tion of any pattern or portion of any article of manu- 
 facture instead of a drawing or description [c) . It also 
 enabled proceedings for piracy to be brought in the 
 County Court (r/) . But all previous enactments relating 
 to copyright in designs were repealed by the Patents, 
 Designs and Trade Marks Act, 1883 (e). Under this 
 Act (/), application may be made to the Comptroller- 
 Greneral of Patents, Designs and Trade Marks at the 
 Patent Office {g) for the registration of any new or 
 original design not previously published in the United 
 Kingdom. The question, whether registration is to be 
 permitted, is to be decided by the comptroller, subject 
 to an appeal to the Board of Trade (//). A certificate of 
 registration is required to be granted to the proprietor 
 of a design when registered (/). And it is enacted {k) 
 
 [ij) Stats. 5 \: 6 Vict. c. 100, 
 s. 6 ; 6 & 7 Vict. c. 65, s. 6 ; 
 Jeu-itt V. Eckhardt, M. E,., 26 W. 
 R. 415. 
 
 (;:) Stat. 13 & 14 Vict. c. 104 ; 
 see also stat. 14 & 15 Vict. c. 8, 
 extended by stat. 15 & 16 Vict. 
 c. 6. 
 
 (rt) Stat. 13 & 14 Vict. c. 104, 
 s. 9. 
 
 {h) Stat. 21 & 22 Vict. c. 7G, 
 
 s. 3. 
 
 (c) Sect. 5. 
 
 {(l) Sects. 8, 9. 
 
 (f) Stat. 46 & 47 Vict. c. 57, 
 s. 113. 
 
 (/) Sects. 47 — 49 ; see Designs 
 Rules, 1883. And see sect. 61. 
 
 {(/) See ante, p. 384. 
 
 (//) See sect. 47. 
 
 [i] Sect. 49. 
 
 (/.•) Sect. 50, sub-s. 1.
 
 OF PATENTS AND COPYRIGHTS. 411 
 
 that, when a design is registered, the registered pro- 
 prietor of the design shall, subject to the provisions of 
 the Act(/), have copyright in tho design during 
 five years from tho date of registration. In and 
 for the purposes of this Act "Design" means any "Design." 
 design applicable to any article of manufacture, or to 
 any substance artificial or natural, or partly artificial 
 and partly natural, whether the design is applicable for 
 the pattern, or for the shape or configm-ation, or for the 
 ornament thereof, or for any two or more such pur- 
 poses, and by whatever means it is applicable, whether 
 by printing, painting, embroidering, weaving, sewing, 
 modelling, casting, embossing, engraviug, staining, or 
 any other means whatever, manual, mechanical, or 
 chemical, separate or combined, not being a design for 
 sculpture, or other thing within the protection of the 
 Sculpture Copyright Act of the year 1814 (;;/) ; and 
 "Copyright" means the exclusive right to apply a ''Copyright" 
 design to any article of manufacture or to any such ^^ ^ esign. 
 substance as aforesaid in the class or classes in which the 
 design is registered (ii). For the purposes of the re- 
 gistration of designs, goods are classified as appears in 
 the Designs Rules, 1883 (o). The same design may be 
 registered in more than one class of goods (jj). A book Register of 
 called the llegister of Designs is required to be kept at '^^'^^ous- 
 the Patent Office ; and the names and addresses of pro- 
 prietors of registered designs and notifications of assign- 
 ments and transmissions of registered designs are re- 
 quired to be entered therein (</). The register is re- 
 quired to be open to the inspection of the public (r). 
 The proprietorship of the copyright in a registered 
 design is evidenced by the entry in the register, in the 
 
 (l) See sects. 50 (siib-s. 2), ol, {o) Rule 5, and Third Schedule. 
 
 54. (p) Sect. 47, sub-s. 4. 
 
 (m) Stat. 54 Geo. III. c. 56; (q) Sect. 55, sub-s. 1. 
 
 ante, p. 405. (V) Sect. 88. 
 
 (w) Sect. 60.
 
 412 
 
 OF INCORPOTIEAI. TERSONAL PROPERTY. 
 
 Penalty on 
 piracy of 
 design. 
 
 same way as the proprietorship of a patent is evidenced 
 by the entry in the register of patents (s). And the 
 person for the time being entered in the register of 
 designs as proprietor of copyright in a design has the 
 same power to deal therewith as the registered pro- 
 prietor of a patent has to deal with a patent {f). A 
 penalty is imposed on the piracy (as described in the 
 Act) of any design, during the existence of copyright 
 therein, of a sum not exceeding 50/. for every offence, 
 to be recovered by the registered proprietor of the 
 design as a simple contract debt by action in any Court 
 of competent jurisdiction (u). But notwithstanding the 
 remedy so given, the registered proprietor of any de- 
 sign may (if he elects to do so) bring an action for 
 damages arising from the piracy (as described in the 
 International Act) of any such design (.r). The Act contains pro- 
 
 and colonial . . , , . , , , tip 
 
 protection of visions, under which a person, who lias appned lor pro- 
 designs, tection for any design in a foreign state or British 
 possession, may be entitled to registration of his design 
 in priority to other applicants. The requirements of 
 the Act in this respect are the same as in the case of 
 similar applications for a patent (i/). 
 
 Trade marks. Particular marks or devices are often used by manu- 
 facturers to designate goods made by them. These are 
 called trade marks. Under certain circumstances, a 
 right may be acquired to the exclusive use of a trade 
 mark. Since the year 1875 the acquisition and enjoy- 
 ment of such a right have been regulated by statute. 
 Before the Trade Marks Registration Act, 1875 (;:), 
 took effect, if a trade mark came by use to be recognized 
 in trade as the mark of the goods of a particular manu- 
 
 (s) By sects. 55, 87 ; see ante, [y) Sects. 103, 104 ; see ante, 
 
 pp. 395, 396. p. 396. 
 
 [t) By sect. 87; seertwie, p. 396. {z) Stat. 38 & 39 Vict. c. 91; 
 
 (?0 Sect. 58. see stat. 39 & 40 Vict. c. 33. 
 {x) Sect. 59.
 
 • OF PATENTS AND COPYRIGHTS. 413 
 
 facturer, lie acquired an exclusive right to use the trade 
 mark in connection with goods of the same kind for the 
 purpose of indicating their manufacturer or phice of 
 manufacture {((). Since that Act took effect, registra- 
 tion of a trade mark has been essential to the acquisition 
 and enjoyment of an exclusive right to use it [h) ; but 
 the nature of the right remains the same as before. 
 The foundation of the right is the rule, that no man 
 is entitled to represent his goods as being the goods of 
 another man. Accordingly, a trader, who has acquired 
 a right to the exclusive use of a trade mark, may obtain 
 an injunction to restrain any other person from passing 
 off Ilia own goods as those made by the complainant, by 
 the use of the complainant's trade mark, or from using 
 such an imitation of the complainant's trade mark 
 as is likely to induce people to believe that the 
 goods marked therewith were made by the complain- 
 ant (c). And in order to obtain such an injunction, 
 it is not necessary for the complainant to prove that 
 the use made of his trade mark was fraudulent, or 
 that anybody has been actually deceived thereby [d). 
 But those who themselves deceive the public cannot 
 prevent others from using their marks {e). A trade 
 mark may belong to particular works as well as to par- 
 ticular persons (/). If a trade mark come to be 
 
 (a) Leather-cloth Company v. Company v. Wilson, 3 App. Cas. 
 
 American Leather-Cloth Company, 37G ; Johnston v. Orr Eiciny, 7 
 
 llH.of L. Cas. 523; llJur.,N.S. App. Cas. 219 ; Singer Manufac- 
 
 513; 13 W. R. 373; Orr Ewing\. taring Company v. Loog, 8 App. 
 
 Johnston, 13 Ch. D. 434 ; 7 App. Cas. 15 ; Upmann v. Forester, 24 
 
 Cas. 219; Singer Manufacturing Ch. D. 231. 
 
 Company v. loog, 18 Ch. D. 395 ; (e) Fidding v. How, 8 Sim. 477; 
 
 8 App. Cas. 15. Ferry v. Truefitt, 6 Beav. 66 ; 
 
 {h) See stats. 38 & 39 Vict. c. Lcather-Cloih Company Limited v. 
 
 91, s. 1 ; 39 & 40 Vict. c. 33; 46 American Leather-Cloth Company 
 
 & 47 Vict. c. 57, s. 77. Limited, 11 H. of L. Cas. 523, 
 
 (c) See the cases cited in uote(ff), 542 — 545; Chcavin v. Walker, 
 
 above. C. A., 5 Ch. D. 850. 
 
 {d) Millington v. Fox, 3 My. & (/) Motley v. Fownman, 3 My. 
 
 Cr. 338; Singer Mantifaetaring & Cr. 1.
 
 414 OF IXCOUPOREAL PERSONAL PROPERTY. 
 
 generally known as designating goods of some par- 
 ticular manufacture, which have acquired a high repu- 
 tation in the market, the exclusive right to use it may- 
 be a very important privilege. It has been held that, 
 imder an agreement to pui'chase at a valuation all the 
 stock belonging to a partnership, a right acquired by 
 the firm to the exclusive use of a trade mark ought to 
 be the subject of valuation, as forming part of the assets 
 of the partnership {[/) . Such a right was moreover held 
 to be assignable or transmissible together with the 
 business in connection with which it had been accjuired 
 or exercised (//). Hence it has been said that, in a 
 certain sense, there may be property in a trade mark (/) . 
 It must however be borne in mind that a trade mark 
 cannot be said to be the subject of property in the same 
 way that a bale of goods is said to be the subject of the 
 right of property or ownership. The right given by 
 law in respect of a trade mark is the exclusive right to 
 use it in connection with some particular kind of goods 
 for the purpose of indicating their manufacturer or place 
 of manufacture (k). 
 
 [ff) Hall V. Barrows, 4 De G., {k) See Lord Cranworth, Zca- 
 
 J. & S. 150; 10 Jur., N. S. 55. ther-Cloth Company v. American 
 
 {lt)^ee3Iiirmgton\. Fox,^'Mj. Leather -Cloth, Company, 11 H. of 
 
 & Cr. 338; Edelsten \. Tick, 11 L. Cas. 523, 533; and sec The 
 
 Hare, 78 ; Hall v. Barrows, 4 De Collins Company v. Brown, 3 K. & 
 
 G., J. & S. 150; Leather-Cloth J. 423. The exclusive right to 
 
 Company v. American Leather- the use of a trade mark has been 
 
 Cloth Company, 11 H. of L. Cas. often compared to, and some- 
 
 523 ; Singer Manufacturing Com- times confused with, copyright ; 
 
 pany-v. Wilson, 3 App. Cas. 376; see Dicks v. Yates, 18 Ch. D. 76. 
 
 Singer Manufacturing Company v. The point of resemblance between 
 
 Loog, 18 Ch. D. 395; 8 App. Cas. them appears to be that each is 
 
 15. among the rights, which avaU 
 
 (i) See Westbuiy, C, Hall v. against all the world, and which 
 
 Barrows, 4 De G., J. & S. 150, have no particular subject over 
 
 158; Blackbiu-n, L. A., Singer which they may be exercised; 
 
 Manufacturing Company v. Loog, see ante, pp. 324, note {a), 394, 
 
 8 App. Cas. 15, 33. note {a).
 
 OF PATENTS AND COPlllIGHTS. 415 
 
 In the year 1875, an Act was passed to establish a Registration 
 register of trade marks (/) , And it Avas enacted that, jnm.kg, 
 after the 1st of July, 1877, a person should not he en- 
 titled to institute any proceeding to prevent or to recover 
 damages for the infringement of any trade mark, as 
 defined by the Act, imtil and unless such trade mark 
 were registered in pursuance of the Act, or until and un- 
 less, with respect to any device, mark, nnme, combina- 
 tion of words, or other matter or thing in use as a trade 
 mark before the passing of the Act, registration thereof 
 as a trade mark should have been refused {ni). But with 
 regard to trade marks used in the textile industries, the 
 time was extended to the first of July, 1878, or such 
 further time as her Majesty might, by order in council, 
 determine {ii). The Trade Marks Eegistration Act, 
 1875, and the statutes, which had amended it (/), were 
 repealed by the Patents, Designs and Trade Marks Act, 
 1883 {o). But it is enacted in the same Act (p) that a 
 person shall not be entitled to institute any proceeding 
 to prevent or to recover damages for the infringement of 
 a trade mark unless, in the case of a trade mark capable 
 of being registered under this Act, it has been registered 
 in pursuance of this Act or of an enactment repealed by 
 this Act, or, in the case of any other trade mark in use 
 before the 13th of August, 1875 (y), registration thereof 
 under this part of this Act, or of an enactment repealed 
 by this Act, has been refused. A certificate, that sucli 
 registration has been refused, may be obtained (r). 
 
 (/) The Trade Marks Regis- (ii) Stat. 40 & 41 Vict. c. 37. 
 
 tration Act, 187^, stat. 38 & 39 (o) Stat. 46 & 47 Vict. c. 57, 
 
 Vict. c. 91, which received the s. 113. 
 
 royal assent on the 13th August, {p) Sect. 77. 
 
 1875. This Act was amended by {g) The date of the passing of 
 
 stats. 39 & 40 Vict. c. 33, and theAct of 1875; see note (/) above. 
 
 40 & 41 Vict. 0. 37. (') See sect. 77; Trade Marks 
 
 (;h) Stat. 39 & 40 Vict. c. 33, Rules, 1883, Nos. 3, 5, 57. 
 8. 1.
 
 416 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Application 
 for registra- 
 tion of trade 
 mark. 
 
 Eogistcr of 
 trade marks. 
 
 Registration 
 now equiva- 
 lent to public 
 use. 
 
 Under the Act of 1883 (s), application for the regis- 
 tration of a trade mark must be made in the prescribed 
 form to the Comptroller-General of Patents, Designs 
 and Trade Marks at the Patent Office {f). By the 
 same Act (it), a book called the Pegister of Trade 
 Marks is required to be kept at the Patent Office, in 
 continuation of the register established by the Act of 
 1875 (.r) ; and the names and addresses of proprietors 
 of registered trade marks and notifications of assign- 
 ments and transmissions of trade - marks are required 
 to be entered therein. This register is required to 
 be open to the inspection of the public {//). And it 
 is enacted (2) that registration of a trade mark shall 
 be deemed to be equivalent to public use. Also, that 
 the registration of a person as proprietor of a trade 
 mark shall be prima facie evidence of his right to the 
 exclusive use of trade mark, and shall, after the ex- 
 piration of five years from the date of registration, 
 be conclusive evidence of his right to the exclusive 
 use of the trade mark, subject to the provisions of 
 this Act {a). A trade mark must be registered for 
 particular goods or classes of goods [h). And the Act 
 provides (c) that a trade mark, when registered, shall 
 be assigned and transmitted only in connexion Avith 
 the goodwill of the business concerned in the par- 
 ticular goods or classes of goods for which it has 
 
 I 
 
 (*) See Stat. 46 & 47 Vict. c. 57, 
 s. 62; and Trade Marks Rules, 
 1883, W. N. oth Jan. 1883, sup- 
 plement. 
 
 {t) See ante, p. 384. 
 
 \u) Sect. 78. 
 
 [x] See sect. 114, sub-s. 2. 
 
 (y) Sect. 88. 
 
 [z) Sect. 75. Stat. 38 & 39 
 Viet. c. 91, 8. 2, was similar in 
 effect. See ante, p. 412. 
 
 («) Sect. 76. Stat. 38 & 39 
 Vict. c. 91, s. 3, "was similar in 
 effect. 
 
 {h) Sect. 65 ; see Trade Marks 
 Rules, 1883, No. 6. Stat. 38 & 39 
 Vict. c. 91, s. 2, contained a simi- 
 lar provision. 
 
 [c) Sect. 70. Stat. 38 & 33 
 Vict. c. 91, s. 2, contained a simi- 
 lar provision; see ante, p. 414.
 
 OF PATENTS AND COPYRIGHTS. 417 
 
 been registered, and shall be determinable with that 
 goodwill. The person for the time being entered in 
 the register of trade marks as proprietor of a trade 
 mark has the same power to deal therewith as the 
 registered proprietor of a patent has to deal with the 
 patent (c/). For the purposes of this Act, a trade Of what a 
 mark must consist of or contain at least one of the mustTOns^st. 
 following essential particulars: — (1) A name of an 
 individual or firm printed, impressed, or woven in 
 some particular and distinctive manner ; or (2) a 
 written signature or copy of a written signature of 
 the individual or firm applying for registration 
 thereof as a trade mark; or (3) a distinctive device, 
 mark, brand, heading, label, ticket, or fancy word 
 or words not in common use (e) . But there may be 
 added to any one or more of these particulars any 
 letters, words or figures, or combination of letters, 
 words or figm-es, or any of them (_/'). And it is 
 provided that any special ^nd distinctive word or 
 words, letter, figure, or combination of letters or 
 figures, or of letters and figures, used as a trade mark 
 before the 13th day of August, 1875, may be regis- 
 tered as a trade mark under this part of this Act(^). 
 The Act provides that, except where the Court has 
 decided that two or more persons are entitled to be 
 registered as proprietors of the same trade mark, the 
 comptroller shall not register in respect of the same 
 goods or description of goods a trade mark identical 
 with one already on the register with respect to such 
 
 {d) By sect. S7 ; see pp. 396, Ch. D. G59 ; Me Barrow's Trade 
 
 il2, ante. Marks, 5 Ch. D. 353; lie Mit- 
 
 [c] Sect. 6i, sub-s. 1. cheWs Trade Mark, 7 Ch. D. 36; 
 
 (/) Sect. 64, sub-s. 2. Ec Palmer's Trade Mark, 21 Ch. D. 
 
 {g) Sect. 6-1, sub-s. 3. Stat. 47; 24 Ch. D. 504 ; which Ulus- 
 
 38 & 39 Vict. c. 91, s. 10, con- trate the difFerence between that 
 
 tained somewhat similar provi- enactment and the present, 
 sions ; sec Ex parte Stephens, 3 
 
 W.P.P. E E
 
 418 
 
 OF INCOKPOREAL PERSONAL PROPERTY, 
 
 Registration 
 of series of 
 marks. 
 
 Colour of 
 trade mark. 
 
 EemoTal of 
 trade mark 
 from res-ister. 
 
 Cutlery, &c. 
 
 goods or description of goods (A). Also, that the 
 comptroller shall not register with respect to the same 
 goods or description of goods a trade mark so nearly 
 resembling a trade mark already on the register with 
 respect to such goods or description of goods as to be 
 calculated to deceive {i). And it is enacted that it shall 
 not be lawful to register as part of or in combination 
 Avith a trade mark any words the exclusive use of which 
 W'Ould by reason of their being calculated to deceive or 
 otherwise, be deemed disentitled to protection in a Court 
 of justice, or any scandalous design (/.■). "When a person 
 claiming to be the proprietor of several trade marks which, 
 while resembling each other in the material particulars 
 thereof, yet differ in respect of (1) the statement of the 
 goods for which they are respectively used or proposed to 
 be used, or (2) statements of numbers, or (3) statements 
 of price, or (4) statements of quality, or (5) statements of 
 places, seeks to register such trade marks, they may be 
 registered as a series in one registration. It is provided 
 that a series of trade marks shall be assignable and 
 transmissible only as a whole, but for all other purposes 
 each of the trade marks composing a series shall be 
 deemed and treated as registered separately (/). A 
 trade mark may be registered in any colour, and such 
 registration sliall (subject to the provisions of this Act) 
 confer on the registered owner the exclusive right to 
 use the same in that or any other colour (;;/). A trade 
 mark may be removed from the register, if the prescribed 
 fee be not paid before the expiration of every period of 
 fourteen years from the date of registration (»). Special 
 provision is made by the Act for the registration of 
 trade marks used on cutlery, edge tools, or raw steel, 
 or on goods made of steel, or of steel and iron com- 
 
 (h) Sect. 72, sub-s. 1. 
 («) Sect. 72, sub-s. 2. 
 (k) Sect. 73. 
 (0 Sect. 66. 
 
 {>») Sect. 67. 
 
 {n) See sect. 79 ; Trade Marks 
 Rules, 1883, No. 3.
 
 OF TWTEXTS AM) COPYIUGHTS. 410 
 
 bined, with or without a cutting edge, by the Cutlers' 
 Company at Sheffield, and for the notification to the 
 Cutlers' Company of applications for the registration 
 of sucli trade marks at the Patent Office, and of the 
 proceedings thereon (o). The Act contains provisions, international 
 under which a person, who has applied for protection ^ii'^ '•^ip'"''! 
 
 J- _ ' J- i i_ _ protection ot 
 
 for any trade mark in any foreign State or British pos- trade marka, 
 session, maybe entitled to registration of his trade mark 
 in priority to other applicants. The requirements of 
 the Act in this respect are the same as in the case of 
 similar applications for a patent (p). 
 
 We have seen (7) that the name of an individual or Trade names, 
 firm may be used and registered as a trade mark. The 
 goods of a particular trader may, however, come to be 
 known in the market by or in connection with his 
 name, or the name of his works, or of the place where 
 his works are situated, although the name in question 
 has not been used as a trade mark properly so called (r). 
 For example, bitters made by a particular manufacturer 
 at Angostura may come to be known as " Angostura 
 Bitters " (s) ; food for cattle made by one Thorley may 
 come to be known as " Thorley 's Food for Cattle " {() ; 
 and sewing machines made by one Singer may come to 
 be known as "Singer Machines" {u). When a name 
 used in this way has become known in the market as 
 denoting the goods of a particular manufacturer, he 
 acquires a right to prevent any other jierson from using 
 the same name in connection with the same kind of 
 goods for trade purposes, in such a way as is likely to 
 
 (0) Sect. 81. (s) See Sieger t v. Fiiidlaler, 7 
 
 {j}) Sects. 103, 104; see ante, Ch. D. 801, 802, 809. 
 pp. 396, 412. {t) See Massaviv.T/iorley's Cattle ■ 
 
 {q) Ante, p. 417. Food Compaivj, 14 Ch. D. 748, 755, 
 
 (»•) See Blackburn, L. A., (S'j«(7fr 760,761. 
 Mamifacturiug Company v. iooy, 8 («) Sec Himjer Manufacturing 
 
 App. Gas. 15, 32. Company v. Lo^'g, 8 App. Cas. 
 
 15, 32, 33, 38. 
 Ei:2
 
 420 OF 1^•C0RP0REAL TERSONAL rROPEHTY. 
 
 iuduce people to believe tliat tlio goods offered for sale 
 by the latter trader aro goods manufactured by the 
 former (,r). A name so used and known is called a 
 trade name. Tlie right so given by law to the exclusive 
 use of a trade name is assignable or transmissible 
 together with the business in connection with which 
 it has been acquired or exercised (y) . Sometimes the 
 goods of a particular manufactm-er come to be known 
 in the market by or in connection with a name, which 
 he uses as his trade mark. In such a case, his right to 
 the exclusive use of the name, as a trade name, appears 
 to be distinct from his right to the exclusive use of the 
 same name as a trade mark (~) , The right given by 
 law to the exclusive use of a trade name is founded 
 upon and limited by the rule, that no man is entitled to 
 represent his goods as being the goods of another 
 man {a). And a manufacturer, who has acquired such 
 a right, cannot prevent other traders from using his 
 trade name in such a way as is not likely to induce 
 people to believe that the goods offered for sale by such 
 other traders are goods manufactured by him {b) . 
 
 Goodwill. Connected with the subject of trade marks is that of 
 
 goodwill. The goodwill of a trade or business is often 
 of great value. It comprises every advantage which 
 has been acquired by carrying on the business, whether 
 connected with the premises in which the business has 
 
 (.1-) See the cases cited in tlie De G., M. & G. 896, 904, S05 ; 
 
 three preceding notes. TFolherspoon v. Currie, L. E,., 6 
 
 [y) See the same cases. H. of L. Cas. 508, 523 ; Siegerty. 
 
 [z) See Wotherspoon v. Currie, i^j«rf/«<er, 7 Ch. D. 801, 813, 814; 
 
 L. E., 5 H. of L. Cas. 508, 523 ; Massam y. Thorleifs Cattle Food 
 
 Singer Manufacturing Company v. Company, 14 Ch. D. 748, 752, 753, 
 
 WiUon, 3 App. Cas. 376, 401 ; 763 ; Thorleifs Cattle Food Com- 
 
 Singer Manufacturing Company v. ^jwwy v. Massam, 14 Ch. D. 763 ; 
 
 Zoog, 18 Ch. D. 395 ; 8 App. Cas. Singer Manufacturing Company v. 
 
 15. Zoog, 18 Ch. D. 395, 412, 413, 
 
 a) Cf. ante, p. 413. 417, 418, 424, 425; 8 App. Cas. 
 
 b) See Ihirgess y. Burgess, 3 15, 26,. 27, 29—39.
 
 01- PATENTS AND COPYIUGHT.S. 421 
 
 Leen carried on, or witli the name of tlie firm by whom 
 it has been conducted (c). On the dissohition of a 
 partnership, each partner has a right, in the absence of 
 any stipuhation to the contrary, to use the name of the 
 old firm (d) ; and if there be a stipulation that, in case 
 of the decease of one partner, the siu'viving partner shall 
 take the stock or capital at a valuation, the goodwill 
 must be included in such valuation (e) . The sale of the 
 goodwill of a business will not prevent the vendor from 
 setting uj) a similar business on his own account, even 
 in immediate proximity to the premises on which the 
 old business has been carried on (/) : but, in such a case, 
 the vendor is not entitled to represent that the new 
 business, which he has set up, is the same as, or is 
 carried on in continuation of the business, of which he 
 has sold the goodwill {g). Lord Eomilly, M. R., held Luhoucherev. 
 that the vendor of a business with the goodwill thereof, 
 who has subsequently sot up the same business for 
 himself, must not solicit the customers of the old busi- 
 ness to cease dealing with the purchaser, or to give their 
 custom to himself (//). This decision has occasioned 
 considerable conflict of opinion amongst eminent judges. 
 It was followed by Jessel, M. 11. (/) ; and Brett, M. E. (/.•), 
 
 (c) Churton v. Doublets, John- of tlio business of a bankrupt by 
 
 son, ITi. liis trustee, see Walker v. Jlottram, 
 
 {d) Banks \. Gibson, M. R., 11 19 Ch. D. 355. As to the case 
 
 Jur., N. S. G80; 34 L. J., Chan. of the expulsion of a partner 
 
 179; 13 W. R. 1012; 34 Beav. from a business, see Dairson v. 
 
 5GG. JSccson, 22 Ch. D. 505. 
 
 (c) JIall V. Barrous, 51. K., 9 (J) Ginesi v. Cooper ^- Company, 
 
 Jur.,N.S. 483, affirmed by L.C., 14 Ch. D. 596. In this case, 
 
 10 Jur., N. S. 00 ; 4 De G., J. & Jessel, M. R., extended the doc- 
 
 S. 150. trine laid down in Lahoiichere v. 
 
 (/) Crutlicell V. ^Lye, 17 Ves. Dauson, but the extension so in- 
 
 335 ; Hall v. Barrows, Chnrion v. troduced "was overruled by the 
 
 Douglas, \i\si ?,\\.'^v^\ Lahoucherc \. Court of Appeal; Lcggott v. 
 
 Dausoii, L. R., 13 Eq. 322, 324. Barrett, 15 Ch. D. 306. 
 
 (g) C/iiirtony. Douglas, Joh.m. {k) Leygott r. Barrett, 15 Ch. 
 
 (/() Lahouchcre v. Dawson, L. D. 312. 
 R., 13 Eq. 322. As to the sale
 
 422 0¥ INCORPOKEAL ]'ERSO>'AL PROPEKTY. 
 
 Lush, L. J. (l) and LIndley, L. J. (m) have expressed 
 their approval of it. On the other hand, Baggallay, 
 L. J. (») and Cotton, L. J. (o) have expressed the 
 opinion that the case in question was wrongly decided. 
 Upon the sale of a business with the goodwill, the 
 purchaser should always insist on a covenant being 
 entered into by the vendor not to carry on the business 
 within so many miles of the old premises ; which cove- 
 nant, as we have seen ( /;) , is valid. And it is suggested 
 that, in the present condition of the law, it is desirable, 
 in the interest of the purchaser, that the vendor should 
 also expressly covenant that, in case he *hall set up a 
 similar business without the prescribed limits, he will 
 not privately solicit any customer of the business sold 
 to deal with him or to cease dealing with the purchaser 
 with respect to the class of business sold, either per- 
 sonally or by letter or circular, or by travellers or other 
 agents {q). In one case, where the goodwill of a part- 
 nership business was ordered to be sold by the Court, a 
 notice was directed to be inserted in the advertisements 
 and particulars of sale, that the sale would not prevent 
 any person theretofore interested in the business from 
 carrying on the like business in the same town (r). 
 
 (l) Walker v. Mottram, 19 Ch. {p) Ante, p. 139. 
 
 D. 355, 362, 364. {q) See Turner v. Ecans, 2 De 
 
 (;») S. C, 19 Ch. D. 362, 364; G., M. & G. 740; Lcggott v. 
 
 Fearsony. Pearson, C K., Id 3vlj, Barrett, Id Ch. D. 306. Such a 
 
 18S4 ; 38 Sol. J. 672 (19 July, covenant -would be valid ; liannie 
 
 1884). V. Irvine, 7 Man. & Gr. 969 ; see 
 
 («) Wallcer v. Mottram, 19 Ch. ante, p. 139. 
 
 D. 365, 366 ; Fearsoji v. Fearson, (>■) Johnson v. HeUeley, 2 De 
 
 ubi sup. Gex, J. & S. 446. 
 
 (o) Pearson v. Pearson, ubi sup.
 
 ( 423 ) 
 
 PART IV. 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 CHAPTER L 
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 
 
 Personal property is capable of beiug settled, but not No estate for 
 in the same manner as land. Land being held by ^ ®' 
 estates, is settled by means of life estates being given to 
 some persons with estates in remainder in tail and in 
 fee simple to others. But personal property, as we have 
 already observed {a), is essentially the subject of abso- 
 lute ownership. The settlement of such property, by 
 the creation of estates in it, cannot therefore be accom- 
 plished. And there is a striking difference in many 
 eases between the effect of the same limitation, ac- 
 cording as it may be applied to real or to personal 
 property. 
 
 As there can be no estate in personal property, it 
 follows that tliere can be no such thing as an estate for 
 life in such property in the strict meaning of the phrase. 
 Thus, if any chattel, whether real or personal, bo 
 assigned to A. for his life, A. will at once become en- 
 titled in law to the whole. By the assignment the pro- 
 perty in the chattel passes to him, and the law knows 
 nothing of a reversion in such chattel remaining in the 
 assignor. And this is the case even though the chattel 
 be a term of years of such length (for iubtance, 1,000 
 
 («} ,/«/(', p. 7.
 
 424 
 
 OF PERSONAL ESTATlil GENERALLY. 
 
 years) that A. ooulcl not possibly live so long {b) . The 
 term is considered in law as an indivisible chattel, and 
 consequently incapable of any such modification of 
 ownership as is contained in a life estate. 
 
 Bequest of a 
 term fur life. 
 
 Executory- 
 bequests. 
 
 Possibility. 
 
 Now alien- 
 able. 
 
 An apparent exception to the above rule has long 
 besn established in the case of a bequest by will of a 
 term of years to a person for his life : in this case the 
 intention of the testator is carried into effect by the 
 application of a doctrine similar to that of executory 
 devises of real estates (c). The whole term of years is 
 considered as vesting in the legatee for life, in the same 
 manner as under an assignment by deed ; but on his 
 decease the term is held to shift away from him, and to 
 vest, by way of executory hequed, in the person to be 
 next entitled (rf). Accordingly, if a tenn of years be 
 bequeathed to A. for his life, and after his decease to 
 B., A. will have climng his life the whole term vested 
 in him, and B. will have no vested estate, but a mere 
 jjossibiliti/, as it is termed (e), until after the decease of 
 A. ; and this possibility, like the possibility of obtaining 
 a real estate, was formerly inalienable at law unless by 
 will(/), though capable of assignment in equity (g). 
 But by the Act to amend the law of real property (l/), 
 which repeals an Act of the previous session passed for 
 the same purpose («'), it is provided that an executory 
 and a future interest, and a possibility coupled ^dth an 
 interest, in any tenements or hereditaments of any tenm'e 
 may be disposed of by deed. B. may, therefore, during 
 the life of A., assign his expectancy by deed ; and such 
 
 (i) 2 Prest. Abs. 5. 
 
 (c) See Principles of the Law 
 of Peal Property, 314, 13th ed. ; 
 326, 14th ed. 
 
 {d) Matthew Manniug''s case, 8 
 Pep. 95 ; Lamperfs case, 10 Rep. 
 47. 
 
 {e) See Principles of the Law 
 of Peal Property, 279, 13th ed. ; 
 291, 14th ed. 
 
 (/) Shep. Touch. 230. 
 
 {g) Fearne, Cont. Pem. 548. 
 
 (/() Stat. 6 & 9 Vict. c. 106, 
 s. 6. 
 
 (i) Stat. 7 e<c S Vict. c. 76, s. 5.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 425 
 
 assignment will entitle the assignee to the whole teiTii 
 on A.'s decease. If, however, no such assignment 
 should have been made, B. will become on the decease 
 of A., possessed of the whole term, which will then 
 shift to B. by virtue of the executory bequest in his 
 favom\ The mere circumstance, indeed, of the term 
 being bequeathed to A. for his life onl}^, will operate to 
 shift away the term on his decease (J), independently 
 of the bequest to B. ; so that, if there had been no 
 bequest over to B., the interest of A. would continue 
 only during his life, and the residue of the term would 
 then remain part of the undisposed-of property of the 
 testator. It may, however, be doubted whether the 
 doctrine of executory bequests is applicable in law to 
 any other chattels than chattels real (/<•). 
 
 The strict and ancient doctrine of the indivisibility Life interests 
 of a chattel, though retained by the Courts of law, had "^ equity. 
 no place in the modern Court of Chancery, which, in 
 administering equity, carried out to the utmost the in- 
 tentions of the parties. In equity, therefore, under a 
 gift of personal property of any kind to A. for his life, 
 and after his decease to B., A. was merely entitled to a 
 life interest, and B. had, during the life of A., a vested 
 interest in remainder, of which he might dispose at his 
 pleasure, and the Court of Chancery would compel the 
 person to whom the Courts of law might have awarded 
 the legal, interest to make good the disposition. Ac- 
 cordingly, if the personal property so given should have 
 consisted of moveable goods, equity would have com- 
 pelled A., the owner for life, to furnish and sign an in- 
 ventory of the goods, and an undertaking to take proj)er 
 
 {j) Eyres V. Faxdidand, 1 Salk. {k) Feame, Cont. Rem. 413. 
 
 231; Ker v. Lord Dungannon, 1 See, however, 1 Jarm. Wills, 703 ; 
 Dru. & War. 509, 52S. 747, 2nd erl. ; 879, 4tli ed. ; Hoare 
 
 V. Parker, 2 T. Rep. 37<).
 
 4-J() 
 
 OF I'EHSONAI- ESTATE GEXEllALLY. 
 
 Ancient dis- 
 tinction be- 
 tween a gift 
 of goods and 
 a gift of tlie 
 use of goods. 
 
 Articles qure 
 ipso usu con- 
 sumuntur. 
 
 care of them (/). This doctrine, however, was com- 
 paratively of modorn date ; for formerly the Com't of 
 Chancery followed the rules of law in the construction 
 of such gifts ; and if a gift of moveable goods had been 
 made to A. for his life, and after his decease to B., they 
 would not have afforded to B. any assistance after A.'s 
 decease (;y^) . But if the gift had been of the use or 
 e»joi/i)icnt of the goods only to A. for his life, and after 
 his decease to B., the Court would then have assisted, B. 
 by declaring A.'s representatives after his decease to be 
 trustees only for the benefit of B. [ii). But this dis- 
 tinction is now exploded; and the only case in which 
 the tenant for life is nov/ entitled absolutely to things 
 given to him for life is, that of articles giue ijjso tisit 
 consiuiuiutar, as wines, &c., a gift of which to a person 
 for his life vests in him the absolute ownership (o). In 
 all other cases, as we have said, modern equity assisted 
 the donee in remainder, to whom any gift of personal 
 estate might have been made after the decease of an- 
 other, who was to have them only for his life {p). As 
 we have seen {q), by the Judicature Acts of 1873 to 
 1875 (r), the Court of Chancery was abolished and its 
 jurisdiction transferred to and vested in the High Court 
 of Justice. And the equitable jmisdiction of the Court 
 is now principally exercised in the Chancery Division. 
 The Act of 1873 enacts that, generally in all matters 
 not thereinbefore particularly mentioned, in which there 
 is any conflict or variance between the rules of equity 
 and the rules of the common law with reference to the 
 same matter, the rules of equity shall prevail (s) . This 
 
 {I) Fearno, Cent. Rem. 407 ; 
 Condtiitt V. Soane, 1 Coll. 285. 
 
 [m) Fearne, Cont. Ecm. 402. 
 
 («) Ibid. 404. 
 
 (o) Eamlall v. Russell, 3 Meviv. 
 190 ; Andren- v. Andrar, 1 Coll. 
 690. 
 
 {jj) Fearne, Cont. Rem. 406. 
 
 {q) Ante, pp. 99, 318. 
 
 [r) Stats. 36 & 37 Vict. c. 66, 
 s. 16 ; 37 & 38 Vict. c. 83 ; 38 & 
 39 Vict. 0. 77. 
 
 (■$) Stat. 36 & 37 Vict. c. m, 
 p. 25, sub-s. 11.
 
 OF SETTLEMENTS OF TEKSONAL PKOPEKTV. 427 
 
 is a most important enactment, but one unfortunately 
 ■which appears to he as obscure as it is important. It 
 must be for the Com't to determine what are and what 
 are not conflicting rules of equity and common law. 
 Before these enactments, when it was wished to make Settlement 
 a settlement of any kind of personal property, the doc- pn^epty by 
 trine of the Com-t of Chancery was resorted to. The meaus of 
 property was assigned to trustees, in trust for A. for his 
 life, and after his decease in trust for B., &c. Tliis 
 assignment to the trustees vested in them the whole 
 legal interest in the proj)erty; and in a Com-t of laAV 
 they were held to be absolutely entitled to it ; for the 
 Statute of Uses {t) has no application to any kind of 
 personal estate. But in equity the trustees were com- 
 pellable to pay the entire income to A. for his life, and 
 after his decease to B., and so on according to the trusts 
 of the settlement ; and if B. should have aliened his 
 interest during the life of A., tlie trustees were bound, 
 on having notice of the disposition, to stand possessed 
 of the property, after A.'s decease, in trust for the 
 alienee {u). Whatever construction may be now placed 
 on a gift of a chattel at law to A. for life with remainder 
 to B. absolutely, there seems no doubt that settlements 
 of chattels by means of trusts are as effectual as they 
 were before {x). 
 
 When shares in joint stock companies are settled in Bonus, 
 the manner above mentioned, it sometimes becomes a 
 question whether any extraordinary benefit which may 
 be divided amongst the shareholders by way of bonus 
 should be considered as capital or as interest. The 
 
 (i) 27 Hen. VIII. c. 10 ; rriu- bo found in Appendix (B). 
 ciples of the Law of Real Pro- (.c) As to the nature of the 
 
 perty, 159, 13th ed. ; 163, 14th ed. respective rig^hts of trustee and 
 
 («) A form of marriage settle- cestui que frimt under the present 
 ment of stock and other personal liiw, see Williams's Conveyancing- 
 estate upon the usual trusts -will Statutes, 38G — 38S.
 
 428 OF PERSONAL ESTATE GENERALLY. 
 
 equitable tenant for life is too frequently inclined to 
 consider himself entitled to every bonus in the same 
 manner as to ordinary dividends. The Court, however, 
 usually considers every bonus, Avhether consisting- of ad- 
 ditional joint stock or shares (i/), or simply of money (;:), 
 as x^art of the capital ; imless it appear to be nothing 
 more than an increased dividend arising from increased 
 profits either of the current year (a), or of any given 
 number of years {b). In such last cases the bonus be- 
 longs to the tenant for life. In all other cases, in the 
 absence of any special provision to the contrary, the 
 bonus ought to be invested upon the trusts of the settle- 
 ment, and the income only paid to the tenant for life. 
 
 Apportion- The law respecting the apportionment of income 
 
 ^me ° ^^' between a remainderman and the rej)resentatives of a 
 
 tenant for life and otherwise now depends on the 
 
 Apportionment Act, 1870 {c), to be presently explained. 
 
 Stat. 4 & o An Act of the reign of King William the Fourth (d), 
 
 • > • - provided that on the decease of a person entitled to a 
 
 life interest in any income, made payable or coming 
 
 due at fixed periods, of any property, whether real or 
 
 personal, his executors or administrators should recover 
 
 from the remainderman an apportioned part of the next 
 
 paj^ment of the income, according to the time which 
 
 should have elapsed since the last period of paj'ment, 
 
 up to and including the day of the decease of such 
 
 (y) Brander v. Brandcr, 4 Ves. Sim. 473 ; Preston v. Melville, 16 
 
 800 ; Hooper Y. liossifer, 13 Price, Sim. 163 ; Maclaren v. Sfainton, 3 
 
 774 ; S. C, M'Cleland, 527. See De Gex, F. & J. 202. 
 also Re Barton'' s Trust, L. E., 5 {b) Be Hopkins's Trusts, V.-C. 
 
 Eq. 238. H., 22 W. R. 687; L. R., ISEq. 
 
 {£) Paris Y. Paris, 10 Ves. 185; 696. 
 Ward V. Combe, 7 Sim. 634. See (c) Stat. 33 & 34 Vict. c. 35. 
 
 also Gilly v. Burley, 22 Beav. {d) Stat. 4 & 5 Will. IV. c. 22, 
 
 619, 624, and the cases there col- s. 2 ; Be JSPaxu-eW s Trusts, V.-C. 
 
 lected. W., 9 Jur., N. S. 350 ; 1 Hem. & 
 
 (a) Barclay v. Wainarright, 14 Mil. 610. 
 Ves. GG ; Price v. Axderson, 15
 
 OF SETTLEMENTS OF PERSONAL PKOPERTY. 429 
 
 person. And when any otlier limited interest deter- 
 mined, a similar right to an apportionment was also 
 given. Bnt the Act made no apportionment of rent 
 between the heir or devisee and the execntor of a tenant 
 in fee simple (e) . Where the property ceased with the 
 interest, and did not go over to another, as in the case 
 of a life annuity, the Act was decided still to apply (,/). 
 The Act extended only to instruments executed,, and 
 wills coming into operation after the passing of the Act, 
 which took place on the IGth June, 1834 {ij) ; and its 
 provisions did not apply to any case in which it was 
 expressly stipulated that no apportionment should take 
 place, or to annual sums made payable in policies of 
 assurance of any description (/;). Previously to this Trevious law. 
 Act no apportionment was made of annuities, or of the 
 dividends of stocks settled in trust for one person for 
 life, with remainder to another ; but the remainderman 
 was entitled to the whole of the annuity or dividend 
 which fell due next after the decease of the person 
 entitled for life (i). But in a case where the tenant for 
 life of stock died on the day on which a half-year's 
 dividend became due, it was held that it belonged to 
 his personal estate [k). If an annuity wore given for Annuity 
 the maintenance of an infant (/), or of a married woman maiuteuauce. 
 living separate from her husbaud (iii), the necessity 
 of the case was considered a ground for presuming 
 
 (c) Brown v. Amyot, 3 Hare, s. 3. 
 173, 183 ; Beer v. Beer, C. P., IG (J) Fearlyv. Smith, 3 Atk. 260; 
 
 Jur. 223, 225 ; 12 C. B. 60 ; Re Skerrard v. Sherrard, 3 Atk. 502 ; 
 
 Clulow, 3 Kay & J. 689. ll'nrdcn v. yLshbiirncr, 2 De Gex 
 
 (/) Carter v. Tagyart, 16 Sim. & Smale, 366 ; The Queen v. The 
 
 417; Trimmer V. Daiibi/jV.-CK., Lords of the Treasury, 16 Q. B. 
 
 23 L. J., Chan. 979; Sutton v. 357. 
 Umiis, M. E,. Ir., 18 W. U. 882. (/.) Baton v. She2)pard, 10 Sim. 
 
 {g) Michell v. Michcll, 4 Beav. 186. 
 549; Knight V. Boughton, 12 Beav. (/) Jlay v. Palmer, 2 P. Wms. 
 
 312 ; Wardropcr v. Culfield, V.-C. 501 ; 1 Swanst. 349, note. 
 K., 10 Jur., N. S. 194. (/«) Iloxoell v. Ilunforih, 2 "W. 
 
 (/() Stat. 4 & 5 Will. IV. c. 22, Black. 1016.
 
 'VoO OF PKHSOXAL ESTATE GENEllALl.V. 
 
 Interest was that an apportionment was intended. The interest of 
 tioacd! ^^^°^" money lent was also always apportioned; for though the 
 payment of sucli interest be made half-yearly, yet it 
 becomes due de die in diem, so long as the principal 
 ThcAppor- remains unpaid (;/). And the Apportionment Act, 
 1870, " ' l^'^'O (o), now provides that, from and after the passing 
 of that Act, all rents, annuities, dividends and other 
 periodical payments in the nature of income (whether 
 reserved or made payable under an instrument in 
 writing or otherAvise), shall, like interest on money 
 lent, be considered as accruing from day to day, and 
 shall be apportionable in respect of time accordingly (7;). 
 The apportioned part of any such rent, annuity, divi- 
 dend 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 appor- 
 tioned 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 {q) . All persons and their 
 respective heirs, executors, administrators and assigns, 
 and also the executors, administrators and assigns re- 
 spectively of persons whose interests determine with 
 their own deaths, shall have such or the same remedies 
 at law and in equity for recovering such apportioned 
 parts as aforesaid, when payable (allowing proportionate 
 parts of all just allowances), as they respectively would 
 have had for recovering such entire portions as afore- 
 said if entitled thereto respectively. Provided that 
 
 («) Edwards Y. Countess of IFar- Tie Clinc^s Estate, L. R., 18 Eq. 
 
 u-ick, 2 P. Wms. 176; Banner v. 213. 
 
 .Lowe, 13 Ves. 135; lie Rogers's {p) Sect. 2; In re Griffith, 12 
 
 Trusts, 1 D. & S. 339. Ch. D. Co5. 
 
 (o) Stat. 33 & 34 Vict. c. S.l, {q) Sect. 3. 
 passed on the 1st Augiist, 1870.
 
 OF SETTLEMENTS OF PERSONA], I'ROPEUTV. -lOl 
 
 persons liaLlo to pay rents reserved out of or cliarged 
 on lands or other liereditaraeuts of any tenure and the 
 same lands or other hereditaments shall not be resorted 
 to for any such apportioned part, forming part of an 
 entire and continuing rent as aforesaid, specifically; hut 
 the entire or continuing rent, including such apportioned 
 part, shall he recovered and received by the heir or other 
 person -who, if the rent had not been apportionable 
 under the Act or otherwise, would have been entitled to 
 such entire or continuing rent ; and such apportioned 
 part shall be recoverable from such heir or other person 
 by the executors, or other parties entitled under the 
 Act to the same, by action at law or suit in equity (r) . 
 The word "dividends" includes, besides dividends Meaning of 
 strictly so called, all i^ayments made by the name of bends'' ^^" 
 dividend, bonus or otherwise, out of the revenue of 
 trading or other public companies, divisible betv\'een all 
 or any of the members of such respective companies, 
 whether such payments shall be usually made or de- 
 clared at any fixed times or otherwise ; and all such 
 divisible revenue shall, for the purposes of the Act, be 
 deemed to have accrued, by equal daily increment, 
 during and within the period for or in respect of which 
 the payment of the same revenue shall be declared or 
 expressed to be made. But the word " dividend " does 
 not include payments in the nature of a return or 
 reimbursement of capital (s). Nothing in the Act con- 
 tained is to render apportionable any annual sums made 
 payable in policies of assurance of any description {t). 
 And the provisions of the Act are not to extend to any 
 case in which it is or shall be expressly stipulated that 
 no apportionment shall take place {u). . This Act, it 
 will be observed, extends the rule of apportionment to 
 the case of a deceased person absolutely entitled to pro- 
 perty, giving to his executors or administrators a right 
 
 (r) Sect. 4. {t) Sect. 6. 
 
 (s) Sect. 6. See Jam's y. Ogle, {u) Sect. 7. 
 
 L. R., 8 Cli. 192.
 
 432 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 as against Lis heir or devisee (.r) or specific legatee (y), 
 to an apportioned part of the income up to the time of 
 his decease. 
 
 No estate tail 
 in pcrsontil 
 property. 
 
 Word "heirs" 
 inapplicable 
 to personal 
 estate. 
 
 A simple gift 
 sufficient. 
 
 An estate tail, such as that created by a gift of lands 
 to a man and the heirs of his body (;:), has 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 kiud to A. and the heirs of his body 
 will simply vest in him the property given («) . And in 
 the construction of wills, where many informal expres- 
 sions are allowed to vest an estate tail in lands, the 
 general rule is, tiiat expressions, which if applied to real 
 estate would confer an estate tail, shall, when applied to 
 personal property, simply give the absolute interest (6). 
 The same effect will be produced by a gift of such pro- 
 perty to a man and his heirs. The v/ords " heirs," and 
 " heirs of his body," are quite inapplicable 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 the time being. Hence, a gift of personal 
 property to A. simply, without more, is sufficient to 
 vest in him the absolute interest {c). Whilst, under the 
 very same words', he would acquire a life interest only 
 in real estate (d), he will become absolutely entitled to 
 
 {x) Ccijjron V. Caprori, L. R., 17 
 Eq. 2S8; SasluckY. I'ccUeij, L.R., 
 19 Eq. 271 ; ConstahltiY. Constable, 
 11 Ch. D. 681. 
 
 {ij) Pollock V. Follock, L. E., 18 
 Eq. 329. 
 
 (z) See Principles of the Law 
 of Real Property, 36, 13th ed. ; 
 37, 14th ed. 
 
 {a) Fearne, Cont. Rem. 461 ; 
 463 ; Doncasier v. Boncaster, 3 
 Kay & J. 26. 
 
 [b) 2 Jarm. Wills, ch, 44, p. 
 534, 3rd ed. ; 562, 4th ed. 
 
 (f) Byng v. Lord Strafford, 5 
 Beav. 558 ; affirmed, nom. Iloare 
 V. Bijng, 10 CI. & Ein. 508 ; Re 
 Percy, 24 Ch. D. 616 ; see also Be 
 Johnston, Cockerell v. Earl of Essex, 
 26 Ch. D. 538. 
 
 {d) Principles of the Law of 
 Real Property, 19, 146, 13th ed.; 
 20, 150, 14th ed.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. -433 
 
 personal property. Thus a gift of lands to A. for life, Example, 
 and after his decease to B., gives to B. a mere life 
 interest in remainder expectant on the decease of A. {e) ; 
 unless indeed the gift be by will imder the Act for the 
 amendment of the laws with respect to wills (_/'). But 
 a gift of personal property to A. for life, 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 circumstance of B.'s dying in the lifetime of A. 
 would be immaterial {(j). 
 
 It is true that in deeds and other legal instruments it Use of the 
 is usual to transfer personal estate absolutely, by the use ^°ors a^*- 
 of the words " executors, administrators and assigns." nistrators and 
 As real estate is conveyed to a man, his heirs and as- 
 signs (//), so personal property is assigned to him, his 
 executors, adiuinistrators and assigns. The executor or 
 administrator is, as we shall see, the person who becomes 
 legally entitled to a man's personal estate after his de- 
 cease ; in the same manner that a man's heir or assign 
 becomes entitled to his real property. But the analogy 
 extends no fiu'ther. There is no necessity for the use 
 of these terms (/) as there is for the employment of the 
 word "heii's" {It). 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, Rule in Shel- 
 by which the word " heirs," when following a life estate ^^ ^ ^'^^'^' 
 given to the ancestor, is merely a word of limitation, 
 
 {e) Goodtitle d. liicharch v. Hd- (It) See Principles of the Law 
 
 monds, 7 T. Eei). 635. of Real Property, 146, 13th ed. ; 
 
 (/) Stat. 7 Will. IV. & 1 Vict. 150, 151, 14th ed. 
 
 c. 26, s. 28. (j) Elliott V. Davenport, 1 P. 
 
 {g) Benijon v. 2£addlson, 2 Bro. Wms. 84. See Earl of Lonsdale 
 
 C. C. 75. V. Countess of Bevchtoldt, Kay, 
 
 CI 6. 
 
 W.IM". F F
 
 434 OF PERSONAL ESTATE GENERALLY. 
 
 giving to sucli ancestor an estate in fee (./). Tims, if 
 money or stock be settled in trust for A. for life, and 
 after his decease in trust for Ms executors, adminis- 
 trators and assigns, A. A\-ill be simply entitled abso- 
 lutely (/■) ; in the same manner as the gift of lands to A. 
 for his life, with remainder to his heirs and assigns, 
 gives him an estate in fee simple. But as the rule, so 
 far as it applies 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 y^'ho has taken a pre- 
 vious life interest is sometimes construed as giving him 
 no further interest in such property (/) ; whilst, under 
 the same circumstances, the word "heirs" in a gift of 
 real estate would have given him the fee simple. 
 
 Eulesasto As no estates can subsist in personal i^roperty, it 
 
 remainders do foUows that the rulcs, on which Contingent remainders 
 not apply to jj^ freehold lands depend for their existence, have never 
 
 contingent , . , . , . . . 
 
 dispositions of had any application to contingent dispositions of per- 
 perty^^ ^^°" sonal property. Such dispositions 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 Act to amend the law 
 as to contingent remainders (iii), would have failed 
 in the event of no son of A. having attained the pre- 
 
 (j) See Principles of the Law (/) irallis v. Taylor, 8 Sim. 
 
 of Eeal Property, 258, 13th ed. ; 241 ; see 1 Eeav. 52; Daniel v. 
 
 270, 14th ed. JDudley, 1 Phi. 1 ; Attorney-Gene- 
 
 {k) Co. Litt. 54 b; Hamcs v. ral\. 3Ial/:in, 2 Phi. G4 ; Alyerr. 
 
 Hemes, 2 Keen, 646; Grafftey \. Parrott, V.-C. W., Law Eep., 3 
 
 Htnnpage, 1 Beav. 46 ; Hoivell v. Eq. 328. 
 
 Gayler, 5 Beav. 157; 3Ieryon v. (w) Stat. 40 & 41 Vict. c. 33; 
 
 Colletf, 8 Beav. 386 ; jVorris v. Principles of the Law of Eeal 
 
 Hoi'-cs, 4 Hhve, 599; Mack-enziev. Property, 273, 13th ed. ; 285, 
 
 3LieJcenzie, 3 Mac. & Gord. 559. 14th ed.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 435 
 
 scribed ago at the time of Ids decease (ii). The reason 
 of this failure depended on the ancient rule, that there 
 must always be some defined owner of the feudal pos- 
 session; 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 o^Mier of the freehold 
 ought to have been appointed, in whom the feudal pos- 
 session might continue (o) , Personal proj)erty, how- 
 ever, 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 
 ownership will spring up, as it were, on the given event 
 of his attaining the age. But as the indestructible nature Limit to 
 of these future dispositions of personal estate might lead gj^*^ dispo- 
 to trusts of indefinite diu'ation, the rule of perpetuities, 
 which confines executory interests within a life or- lives 
 in being, and twenty-one years afterwards, with a fm-ther 
 allowance for the time of gestation, should it exist (p), 
 applies equally to personal as to real estate. And the Eestraint on 
 further restriction on the accumidation of income im- accumulation, 
 posed by the Thellusson Act {g), applies to tnists for the 
 accumulation of the income of j)ersonal estate as well as 
 real. 
 
 (h) Festuiff V. Alien, 12 Mee. & Real Property, 319, 13th ed. ; 
 
 Wels. 279 ; 5 Hare, 573 ; Jlolmcs 331, 14tli cd. 
 
 T. rrescott, V.-C. W., 10 Jur., [q) Stat. 39 & 40 Geo. III. c. 
 
 N. S. 507 ; 12 W. R. 636. 98 ; Principles of the Law of Real 
 
 (o) Ante, p. 434, n. (;«). Property, 322, 13th ed. ; 334, 
 
 (;;) Principles of the Law of 14th ed. 
 
 Y f2
 
 436 
 
 OF PERSOX.\L ESTATE GENERALLY. 
 
 Powers. 
 
 If po-wer is 
 exercised 
 "without 
 valuable con- 
 sideration, 
 the property 
 appointed is 
 .subject to 
 debts of 
 apjjointor. 
 
 Bankruptcy. 
 
 Equitable interests in personal property of a future 
 kind may be created through the instrumentality of 
 powers, in a similar manner, and to the same extent, as 
 future estates in land {>•). 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 
 povrer of appointment ; and B., though not owner of the 
 stock, has power to dispose of it by deed or will, and 
 may if ho please appoint to himself ; in which case the 
 trustees will be bound to transfer it to him. If the 
 power should not be exercised by B., C. 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. (r), or to any other of 
 his debts. But if B. should exercise his power by deed 
 without valuable consideration, or by will, in favour of 
 a third person, the stock so appointed would be con- 
 sidered in equity as part of the assets of B. the ap- 
 pointor, and would be subject to the demands of his 
 creditors in preference to the claim of the appointee {s). 
 
 Ill case of bankruptcy, it was provided by the former 
 Acts (/) that all powers vested in the bankrupt, which 
 he might legally execute for his own benefit (except 
 the right of nomination to any vacant ecclesiastical 
 benefice), might be executed by the assignees for the 
 benefit of the creditors in the same manner as the bank- 
 rupt might have executed the same. Under the Bank- 
 
 ()•) See Principles of the Law 
 of Eeal Property, 296, 13th ed. ; 
 308, 14th ed. 
 
 (a) Lassells v. Co7-mcaUis, 2 
 Vern. 465 ; Bainton v. Ward, 2 
 Atk. 172. The doctrine applies 
 also to appointments of real estate. 
 
 See Fleming v. Bttchanan, 3 De 
 Gex, M. & G. 976. 
 
 (0 Stat. 12 & 13 Vict. c. 106, 
 8. 147, repealing stat. 6 Geo. IV. 
 c. 16, s. 77, to the same effect, 
 and now repealed by stat. 32 & 33 
 Vict, c, 83. See ante, p. 224.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 437 
 
 ruptcj Act, 1869, sucli powers might be exercised by 
 the trustee for the creditors (u). And such powers may 
 be so exercised by the trustee in bankruptcy under the 
 Bankruptcy Act, 1883, as we have seen (.r). 
 
 The rules respecting the necessity of a compliance Eulcs 
 with the terms and formalities of the power, whenever powcrs^over 
 it is exercised otherwise than by will {>/) , and the relief ^^al estate 
 afforded by the Court on the defective exercise of a powers over 
 power (~), apply as well to personal as to real j)roperty. P^i'''^°'^^^ 
 Powers over personal estate may also be exercised by 
 women, without their husbands' consent, and also in 
 favom* of their husbands, in the same manner as powers 
 over land (a), independently of the provisions of the 
 Married Women's Property Act, 1882 (//) ; and the 
 provision of the recent Wills Act, which requires wills 
 made in exercise of powers to be executed and attested 
 like all other wills (r), 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 2)onrr 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 (d). 
 
 A frequent instance of the employment of a power Appointment 
 over personalty occurs in the case of children's portions, portions ^^ ^ 
 
 {/<) Stat. 32 & 33 Vict. c. 71, («) IMd. 302, 13tli cd. ; 314, 
 
 83. 15, par. (4); 25, par. (5). See 14th ed. 
 anie, p. 225. {!>) Stat. 45 & 46 Vict. c. 75, 
 
 (.r) See stat. 46 & 47 Vict. c. s. 1, sub-s.- 1. See Williams's 
 
 52, ss. 44, 54, 56, 168 ; ante, pp. Conveyancing Statutes, 373, 383 
 
 232—234, 240. —386. 
 
 {!/) See Principles of the Law (c) Sec Principles of the Law 
 
 of Real Property, 298, 13th cd. ; of Ecal Property, 301, 13th cd. ; 
 
 310, 14th cd. See now as to deeds, 313, 14th cd. 
 Stat. 22 & 23 V^ict. c. 35, s. 12. (rf) Ibid. 304, 13th cd. ; 310, 
 
 (;) Unci. 300, 13th ed. ; 312, 14th ed. 
 14th cd.
 
 438 OF PERSONAL ESTATE GENERALLY. 
 
 which aro usually settled on all the children equally, 
 subject to a power given to the parents to appoint the 
 shares in a different manner. When such a power is 
 exercised, the shares previously vested in the children 
 are divested from them, and new shares are vested in 
 them hy the operation of the power. Formerly, if such 
 a power were so worded as not to authorize an exclusive 
 appointment to some or one of the children, it was held 
 by the Com't of Chancery, as a rule of equity, that each 
 child ought to have a substantial share ; and an appoint- 
 ment to any child of a very small share was called an 
 Illusory cap- illusory cipjjouifnient, and was held void (^'). But this 
 pom men b. doctrine having given rise to difficulties and family dis- 
 putes, from the uncertainty of the question what was 
 Tlie cloctrine too small or what a sufficient share, the meddlesome 
 aboUshed^^'^ doctrine of equity on this point was, in the year 1830, 
 abolished by Act of Parliament (/) ; and now the ap- 
 pointment of any 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 little portions. 
 
 Exclusive ap- Although no a2')pointment was, since this Act, void 
 when vdd'. ^*^^' being illusory, yet where an exclusive appointment 
 was not authorized, any appointment, by which any 
 object of the power would be entirely excluded, was 
 until recently still void. Thus, if 1,000/. 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 900/. to A. would have been good, 
 as 100/. would remain to be equally divided between 
 the three (g), of which B. and C. would get each one- 
 
 (e) 1 Sugd. Pow. 568 et seq. ; (/) Stat. 11 Geo. IV. & 1 Will. 
 
 449, 8tli ed. ; Chance on Powers, IV. o. 46, 16tli July, 1830. 
 396 et seq. {g) Young v. WatcrparJc, 13 
 
 Sim. 202.
 
 OF SETTLEMENTS OF PERSONAL PllOPERTY. 439 
 
 third (//). But a subsequent appointment of tlie re- 
 maining 100/. to B. would liave been void, as altogether 
 excluding C, Avho was equally an object of the power (/). 
 This, however, has now been altered by a recent sta- Now enact- 
 tute (y), which enacts {k), that no appointment which, ^^^ ' 
 after the passing of the Act shall be made in exercise of 
 any power to appoint any property, real or personal, 
 amongst several objects, shall bo 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 valid 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. Provided (/), that 
 nothing in the Act contained shall prejudice or affect 
 any provision in any deed, will or other instriunent 
 creating any power, which sliall 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. It is customary, 
 however, in modern settlements to give to parents a 
 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 have been made, 
 should not obtain more than may have been intended 
 for tliem, it is generally provided that no child taking 
 any share of the fmid imder any appointment sliall be 
 entitled to any share in the part unappointed without 
 bringing his or her share into hotchpot, and accoimting Hotchpot, 
 for the same accordingly. Under such a provision. A., 
 in the instance above given, would not be entitled to any 
 share in the 100/. unappointed, without also agreeing 
 
 {h) Wihon v. Figgott, 2 Ves. (i) 2 Ves. jun. 355. 
 
 jun. 351 ; Wombwell v. Hanrott, \j) Stat. 37 & 38 Vict. c. 37, 
 
 14 Beav. 143. See Foster \. Cant- passed 30tli of July, 1874. 
 ley, 6 De Gex, M. & G. 55 ; Bui- {k) Sect. 1. 
 
 teel V. rixmmcr, L. E., 6 Ch. 160. (0 Sect. 2.
 
 440 
 
 OF rERSO>;AL ESTATE GEXEUALLY. 
 
 No appoint- 
 ment can be 
 made to exe- 
 cutors or ad- 
 ministrators 
 of deceased 
 objects. 
 
 Appointment 
 amongst a 
 class. 
 
 Children. 
 
 Nephews. 
 
 to a like division of his 900/. amongst himself and the 
 others. The clause of hotchpot operates favourably 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 (;;?) ; 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 onl}', 
 the executors or administrator 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 appointments may have been made 
 would be equally entitled to participate in the part un- 
 appointed (n). 
 
 When a power is given to appoint property amongst 
 a particular class, no portion of the fund can be ap- 
 pointed 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 diUdrcn of the ap- 
 pointor 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 (o). So if the power be to appoint amongst 
 
 [ni) Boyle v. TJie Bishop of 
 Feterhorough, 1 Ves. jun. 299 ; 
 Mieketts v. Loftm, 4 You. & Coll. 
 519. 
 
 [n) TTilson v. Piggott, 2 Ves. 
 jnu. 3.J1 ; Wi.mhircJl v. Hanrott, 
 
 Walmsloj V. 
 Gcx & Jones, 
 
 14 Bcav. 143 : 
 Vaughan, 1 De 
 114. 
 
 (o) Alexander v. Alexander, 2 
 Ves. sen. 640 ; Bristoii- v. Warde, 
 2 Ves. jun. 336.
 
 OF .s!i;TTr,i:MKxr.s or personal piiorKKTv. 441 
 
 nephews or grandnepliews, those only can take any 
 shares who answer tliat description (p). Again, if the Younger 
 power he to appoint portions amongst yonnger chiklrcn, ^ " ^"^' 
 nothing can he taken by a younger son wlio after- 
 wards becomes the eklest by the decease of his ckTer 
 brother ((/); although if he should have actually received 
 any share in the money whilst a younger son, he will 
 not bo obliged to refund it on becoming the eldest {)•). 
 The word " younger," however, is not, in parental pro- 
 visions (.s'), taken literally, but as meaning any child 
 who may not be entitled to the family estate. There- 
 fore a daughter, who may be the eldest child, would bo 
 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 (;'). And in 
 the same manner a second son becoming the eldest, but 
 not obtaining the family estate, would be allowed a 
 share [ii). A power to appoint amongst children living Child oi ventre 
 at their father's decease includes a child en vcrdre sa ^^' ""'^' 
 mere (.r). 
 
 In some cases where the power only authorizes an When an ap- 
 appointment amongst children, an appointment in favour fhe"issuTof a 
 of the issue of a child may be sustained as being, in child is good. 
 effect, first an appointment to the child, and then an as- 
 signment by such child in favour of his issue (//). But 
 
 (p) Falkncr v. Butler, Amb. {t) Ticrson v. Garnet, 2 Bro. C 
 
 514 ; JFarhiff v. Zee, 8 Bcav. 247. C 38 ; Ucncagc v. Uimlolce, 2 Atk. 
 
 {q) Chadicick v. Doleman, Vera. 45G ; Healc v. Bealc, 1 P. Wms. 
 
 528; Lord Tcynham v. Wehh, 2 244. 
 
 Ves. sen. 198 ; Grcnj v. Enrl of [n) Sjjeneer v. Spcnecr, 8 Sim. 
 
 Limerick, 2 De Gcx & Smale, 370. 87 ; Muconhrey v. Jone», 2 Kay & 
 
 See Sancleman v. Mackenzie, 1 J. 684 ; Sing v. Leslie, 2 Hem. & 
 
 Jolin. &n. G13. Mil. G8. 
 
 (>•) 2Sugd. Tow. 293; 680, 8tli (.r) Ikedc \. Beale, 1 P. Wms. 
 
 ed. 244. 
 
 (.s) ITaU V. Jleirer, Amb. 203 ; (//) Bviitlcdr/c v. Dorril, 2 Ves. 
 
 L>jddo» V. Lllison, 19 Bcav. 5G5. jnn. 357; TFtstx. Jlen/eif, 1 Russ.
 
 442 
 
 OF PERSONAL ESTATE GEXEKALLY. 
 
 this of course can only be done when the child is of age, 
 and is a party to and executes the deed by "which the 
 appointment is made. And the more regular plan in 
 such cases is, for the father fii-st to make the appoint- 
 ment in favour of the child, and then for the child to 
 make an assignment of the fund appointed to trustees 
 in trust for his children in the manner intended. 
 
 Appointment 
 by a father 
 must not be 
 for bis own 
 benefit. 
 
 Fraud on the 
 power. 
 
 An appointment by a father in favour of his child, in 
 exercise of a power for that purpose, ought to be made 
 for the benefit of the child who is the object of the pro- 
 vision, and not indirectly for the benefit of the father 
 who makes the appointment, or of any other person. 
 Accordingly, any exercise 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, "s\ill be considered as, in technical phrase, a fraud 
 on the power and will be void (~). But when there is 
 no evidence that the appointment is made under a bar- 
 gain for the benefit of the father, although there may 
 be strong suspicion that such is the case, the appoint- 
 ment cannot be set aside {a). Powers of appointment 
 amongst chikben 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 
 representative in the event of its decease (b). An 
 
 & My. 431, 439; Goldsmid v. 
 Goldsmid, 2 Hare, 187 ; Limhard 
 V. Grote, 1 Mylne & Keen, 1. 
 
 {z) JDauheney y. Coclcburn, 1 
 Meriv. 626; Palmer v. JF/ieekr, 
 2 Ball & Beatty, 18; Jackson v. 
 Jacl-^on, 1 Dru. 91 ; Thompson v. 
 Simpson, 2 Jones & Lat. 110; 
 Topham v. Buke of Portland, 1 De 
 
 Gex, Jones & Smith, .517; 11 H. 
 of L. "Rep. 32 ; Pnjor v. Pnjor, 2 
 De Gex, J. & S. 205. 
 
 (a) M' Queen v. Farquhar, 11 
 Ves. 467; Hamilton y. Eirivan, 2 
 Jones & Lat. 393 ; CamphcU v. 
 Home, 1 You. & Coll. N. C. 664. 
 
 (^) Canynghamc v. Tlmrlow, 1 
 Russ. &M. 436; Lord Sandivicli s
 
 OF settlp:ments of ^EKso^^\L vropekty. 443 
 
 appointment 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 tlie event of the child's 
 decease {c) . 
 
 In the exercise of powers of appointment amongst Perpetuity to 
 children, care should be taken not to postpone the the exerciso'^ 
 vesting of theii* shares to a period which may exceed «^ powers, 
 the limits allowed by the law of perpetuity (r/). 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 is 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 application 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 appoint- 
 ment (c). But where the power of appointment is to bo 
 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 limits 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 settleinent 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 (,/'). Thus a person 
 having a general power of appointment by will over a 
 
 case, cited 11 Ves. 470; Gee v. (e) 1 Sugd. Pow. 249, -lOo; 395, 
 
 Guniei/, 2 CoU. 486. 8th ed. 
 
 (c) Butcher v. Jackson, 14 Sim. (/) Co. Litt. 271 b, n. (1), ^•ii. 
 
 iU; Fearo?iv.I)esbrisai/,WBea.v. 2; 1 Sugd. Pow. 498; 396, 8th 
 
 635 ; ireiiti/ v. JTrcf/, 21 Ch. D. cd. ; lloutlcdge v. Borril, 2 Ves. 
 
 332. juu. 357. 
 
 {d) See ante, p. 435.
 
 444 OF PERSONAL ESTATE GENERALLY. 
 
 fund, may by liis will appoint a sliare of it in favour of 
 any unborn cliild of his own, to be vested in sucli child 
 on his attaining- the age of twenty-three years. The 
 limit of perpetuities is reckoned from the time of the 
 appointment, which in tliis case is the deatli of the 
 appointor, when his will begins to take effect. The 
 child must necessarily then bo born, or ni rentrc sa 
 mere, and the child's life is accordingly the life 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 his decease in 
 trust for the children, in such shares as he shall 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 child 
 should not attain the given fige within twenty-one years 
 after the decease of the father, who was the life in being 
 at the date of the settlement. And the rule is, that every 
 limitation which dhuj exceed in duration a life or lives 
 in being, and twenty-one years afterwards (allowing for 
 the period of actual gestation), is void as tending to a 
 perpetuity {g). 
 
 The Courts When personal property is directed to be 2:)aid to any 
 
 interestl''^"^ persons at a future time, the leaning of the Courts is 
 always in favour of vested interests ; that is to say, the 
 Courts lean 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 con- 
 
 {(j) See Principles of the Law of Eeal ProjDerty, 320, 13th ed. ; 
 332, 14th ed.
 
 OF SETTLEMENTS OF PERSONAL riJOPEUTY. 445 
 
 sidered to be immediately vested, and will accordingly 
 be payable to the adniiuistrator of the legatee in case he 
 should die under age (h). So if personal estate be settled 
 in trust for A. for life, and after his decease for all his 
 children in erj^ual shares, each of his children will be 
 entitled to a share, whether such child sur^'ive his 
 parent or not, and although such child should die in 
 infancy (/). If, however, the property should consist Vesting of 
 of money charged on land or other real estate, such as e^anred on 
 tiie portions of younger children when the family estate ^'^^'^■ 
 is entailed on the eldest son, the rule is different ; and 
 if any of the ehildreu sliould die before the time when 
 his or ]icr portion becomes payable, it will, in the 
 abs3nce of special provision to the contrary, sink into 
 the land for the benefit of the estate (/r). 
 
 In the settlement of personal property upon children Vesting of in - 
 there are two plans, .either of which may be adopted to eiiildren!^ 
 with respect to the vesting of the interests given. The 
 one plan is, to vest the interests of the children in them 
 immediately as they come into being, divesting from 
 eacli of them proportionate shares as others are born, 
 and also divesting the shares altogether in favour of tlie 
 others, in the event of the decease of any son under age, 
 or of any daughter under age and without having been 
 married. The other plan is, to vest the interests given 
 only in those who, being sons, attain the age of twenty- 
 one years, or, being daughters, attain that age or marry 
 under it. So far as the corpus of the fund is concerned, 
 the result of each of these plans is the same, the property 
 being ultimately divided only amongst those children 
 who, being sons, live to come of age, or, being daughters, 
 
 (A) 2 Black. Cnmm. 513; Co. Kay & Jolm. 417. 
 
 Litt. 237 a, note (1). (/■) Co.. Litt. 237 a, n. (1). 
 
 (i) Skei/ V. Barnes, 3 Mer. 335 ; See Hvaim v. Scolt, 1 H. of L. 
 
 Tenipleton v. IFarrington, 13 Sim. Cases, 43, 57. 
 2G7. Sec S'l-alloir v. Bi»n^, 1
 
 446 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 JMainteuancc 
 aud educa- 
 tion. 
 
 New enact- 
 ments as to 
 maintenance. 
 
 come of age or previously marry. But with regard to 
 the income of the fund the plans are difTorcnt. In the 
 fii'st case, the income belongs to the children whilst under 
 age ; but in the second, no interest either in the income 
 or in the principal is given diu'ing minority, or, in the 
 case of daughters, until marriage under age. In the 
 fu'st case, therefore, if the father be dead, the income will 
 be payable to the guardian of the children toward their 
 maintenance and education ; but in the second case, there 
 was formerly no provision for these purposes in the 
 absence of express directions. Such directions therefore 
 were in such case alwaj's inserted, "uith a provision for 
 the accumulation of the surplus income by way of in- 
 crease of the principal. If, however, the provision were 
 made by a parent, or by a person in loco jxovntis (/), or 
 if the whole property were ultimately to go amongst the 
 children (in), or if the persons entitled, in the event of 
 the children not living to attain vested interests, should 
 agree (a), the Court directed the income to be applied for 
 the children's maintenance in the absence of sufficient 
 provision for that pui'pose, and even in the face of an 
 express direction to accumulate the income (o). And 
 now, by the 43rd section of the Conveyancing and Law 
 of Property Act, 1881, where any property is held by 
 trustees in trust for an infant, either for life, 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, 
 the trustees may, at their sole discretion, pay to the 
 infant's parent or guardian (if any), or otherwise apply 
 for or towards the infant's maintenance, education or 
 
 (l) Chambers v. GoWwin, 11 
 Ves. 1; Martin v. Martin, L. E., 
 1 Eq. 369. 
 
 {>«) Haley v. Bannister, 4 Mad. 
 275 ; Errat v. Barlotr, 14 Ves. 
 202. 
 
 («) Turner v. Turner, 4 Sim. 
 430; Cannings v. Floiver, 7 Sim. 
 523. 
 
 (o) Grcenwell v. Greenivell, 5 
 Ves. 194.
 
 OF SETTLEMENTS OF PERSONAL rROPETlTY. 447 
 
 benefit, the income of tliat property, or any part tliereof , 
 whether there is any other fund applicahle to the same 
 purpose, or any person hound hy Law to provide for the 
 infant's maintenance or education, or not {p). And the 
 trustees sliall accumulate all the residue of that income 
 by way of compound interest, by investing the same and 
 the resulting income thereof from time to time on secu- 
 rities on which they are by the settlement, if any, or by 
 law, authorized to invest trust money, and shall hold 
 those accumulations for the benefit of the person who 
 ultimately becomes entitled to the property from which 
 the same arise ; but so that the trustees may at any 
 time, if they think fit, apply those accumulations, or 
 any part thereof, as if the same were income arising in 
 the then current year {q). But this section applies only 
 if and as far as a contrary intention is not expressed in 
 the instrument, under which the interest of the infant 
 arises, and shall have effect subject to the terms of that 
 instrument and to the provisions therein contained (r). 
 This section applies whether that instrument comes into 
 operation before or after the commencement of this 
 Act (s). Somewhat similar provisions with regard to 
 maintenance were made by an Act of the year 1860, 
 commonly called " Lord Cranworth's Act " {t) ; but 
 these provisions applied only to deeds executed, and 
 wills executed or confirmed or revived by codicil exe- 
 cuted after the passing of the Act, which took place on 
 the 28tli of August, 1860 {}() ; and they were repealed 
 by the Act of 1881 (,r). It is now more usual, in the 
 settlement of personal property upon children, to vest 
 
 {p) Stat. 44 & 45 Vict. c. 41, (0 Stat. 23 & 24 Vict. c. 145, 
 
 s. 43, sub-s. 1 ; see Williams's s. 26 ; see Williams's Convey- 
 
 ConvcyanciiigStatutes, 210 — 214. anciug Statutes, 211 — 214; Ee 
 
 [q) Sect. 43, sub-s. 2. Cotion, 1 Cli. D. 232; Itc George, 
 
 (r) Sect. 43, sub-s. 3 ; i?e 5 Ch. D. 837. 
 
 ThatcJter''s Trusts, 26 Ch. D. 426. (^0 Sect. 34. 
 
 (4) Sect. 43, 8ub-s. 4. \x) Stat. 44 & 45 Vict. c. 41, 
 
 8. 71.
 
 448 OF PERSONAL ESTATE GENERALLY, 
 
 the interests given in those only who, being sons, attain 
 the age o£ twenty-one, or, being (laughters, attain that 
 age or marry under it, than to adopt the other method 
 of settlement before explained (//). When a fund is 
 settled in this way, and so that, in the event of any 
 chikl attaining a vested interest in the fund, the inter- 
 mediate income will become divisible among the chil- 
 dren as well as the principal, it is now sufficient to rel}' 
 on the provisions of the Act of 1881 with regard to 
 the maintenance of infants (~). 
 
 Maintenance In marriage settlements a life interest is usually and 
 their father^r P-opei"b^ given to the father and mother ; so that no 
 lifetime. provision is required for the maintenance of the children 
 
 until after the decease of the sm^vivor. And where life 
 interests are not given to the j)arents, but pro'sdsion is 
 made for the maintenance of the children during the 
 father's lifetime out of the settled fund, such provision 
 is considered as primarily applicable for the maintenance 
 of the children accordingly (a). But the general rule is, 
 that every father is bound to maintain his children, if of 
 ability so to do (h) ; and a provision contained in a gift 
 to an infant child, for his maintenance and education, 
 will not (unless it be held by trustees who think fit so 
 to do) be applied for that purpose during his father's 
 lifetime, if the father is able to maintain him in a man- 
 ner suitable to his condition and prospects (f). When, 
 
 {>/) Ante, p. 445. See U'il- 152; Meachcr \. Toungc, 2 ITyl. 
 
 liams on Settlements, 160, 162; & K. 490; lianaome v. Burgess, 
 
 Davidson, Prec. Gonv., vol. iii. V.-C. K., Law Eep., 3 Eq. 773. 
 
 166, 3rd ed. See Thompson v. Griffin, 1 Craig 
 
 (;) See Kay, J., Re Judk'uCs & Phillips, 317. 
 
 Trusts, To Ch. D. 743, 747—749. (/.) Andrews v. Partington, 3 
 
 See also Re Cotton, 1 Ch. D. 232, Bro. C. C. 60. 
 
 decided on stat. 23 & 24 Vict. c. (r) Maherleij v. Tnrton, 14 Ves. 
 
 145, s. 26 ; 'Winiams on Settle- 499 ; Jcrvoise v. Silk, G. Cooper, 
 
 ments, 166—168. 52 ; Ex parte Williams, 2 CoUyer, 
 
 {(i) Slacken v. Slacken, 4 Sim. 740.
 
 OF SETl'LEMENTS OF PERSONAL PROPERTY. 449 
 
 therefore, it is intended that tlie income of property 
 given to children should bo applied to their maintenance 
 during- their father's lifetime, without reference to his 
 ability to maintain them, the application of the income, 
 without reference to his abilit)', should be expressly di- 
 rected ; and, if such application be so directed, the income 
 must of course be applied accordingly ((/). When two When two 
 funds are provided for the maintenance of an infant, it yl^^.l {l^ ^^°' 
 is frequently difficult to decide to which fund recourse maintenance, 
 should be first had. The general rule is, that the inte- 
 rest of the infant determines the order of application (r) ; 
 but, in order to avoid questions, it is very desirable, when 
 two funds are provided for an infant's maintenance, to 
 direct that one of them shall be in aid only of the pro- 
 vision afforded by the other. The Conveyancing and New enact- 
 Law of Property Act, 1881, gives, as we have seen (/), ™^^ ' 
 a discretion to the trustees to apply the income of the 
 infant's property for his maintenance, whether there be 
 any other fund applicable to the same purpose, or any 
 person bound by law to provide for the infant's main- 
 tenance or education, or not. The Married Women's Married 
 Property Act, 1882 {(j), now provides that a married '^°'^^°- 
 woman having separate property shall be subject to all 
 such liability for the maintenance of her children and 
 grandchildren, as the husband is now by law subject to 
 for the maintenance of her children and grandchildi-en ; 
 provided that nothing in this Act shall relieve her hus- 
 band from any liability imposed upon him by law to 
 maintain her children or grandchildi-en. 
 
 {d) See WtthercU v. Wilson, 1 (/) Ante, pp. 446, 447. See 
 
 Keen, 80 ; White v. Granc, 18 al«o Williams's Conveyancing 
 
 Beav. 571 ; Brophy v. Bellanuj, Statutes, 210—213. 
 
 L. R., 8 Ch. 798. {g) Stat. 45 & 46 Vict. c. Id, 
 
 [e) Foljainhe v. WilloHghby, 2 s. 21, extending the provisions of 
 
 Sim. & Stu. 165 ; Lygon v. Lord stat. 33 & 34 Vict. c. 93, s. 14, 
 
 Coventry, 14 Sim. 41 ; 3fartin v. thereby repealed. 
 Martin, L. R., 1 Eq. 369, 
 
 W.l'.P. G G
 
 450 
 
 Ol' PERSONAL ESTATE GENERA1J,Y, 
 
 Investment of 
 settled funds. 
 
 Government 
 securities. 
 
 Real security. 
 
 The Improve- 
 ment of Land 
 Act, 1861. 
 
 In settlements of personal property, it lias long been 
 nsnal to provide for the investment of the fund settled 
 in the parliamentary stocks or public funds of Great 
 Britain, or at interest upon government or real secu- 
 rities in England or "Wales, but not in Ireland ; and at 
 the present day investments in railway debentures, pre- 
 ference shares and other securities yielding a larger in- 
 come, are often authorized. Grovernment securities, as 
 distinguished from stocks or funds, seem to be nothing 
 else than Exchequer bills, in which trustees appear to 
 be justified, even without express authority, in investing 
 the property for any temporary purpose, as during the 
 necessary delay in completing a contemplated mort- 
 gage security (/O. But where a permanent investment 
 is intended, a trust to lay out money in government 
 securities will not authorize the purchase of Exchecpier 
 bills (/), Real security means the mortgage of real 
 estate, namely, freehold or copyhold hereditaments of 
 sufficient value (/.•) , And if it be desired that the 
 trustees should have power to invest the trust money 
 on mortgage of leasehold estates, or in railway deben- 
 tures (/), or shares, or any other securities, or to lend 
 it to any person on his bond, express authority ought 
 to be given to the trustees for the purpose. But the 
 Improvement of Land Act, 1864, now provides, that 
 all trustees, directors and other persons who may be 
 directed or authorized to invest any money on real 
 security shall (unless the contrary be provided by the 
 
 (A) Mattheirs v. Brise, G Beav. 
 239, 244. 
 
 {i) Ex parte Chaplin, 8 You. Sz 
 Coll. 397 ; as to the issue of Ex- 
 chequer Bills, see stat. 24 Vict, 
 c. 5. 
 
 {!;) See Sticknei/ v. Seirell, 1 
 My. & Cr. 8 ; FhiUipsonY. Gattij, 
 7 Hare, 516; Mant v. Leith, 15 
 Beav. 524 ; Drosierv. Brereton, 15 
 
 Beav. 221; Jessel, M. R., Re 
 Boyd's Settled Estates, 14 Ch. D, 
 626, 627. Turnpike bonds are 
 real securities for some purposes; 
 Robinson v. Robinson, Lords Jus- 
 tices, 1 De Gex, JMac. & G-ord. 
 247, 262. 
 
 [1) Jfortimore v. Mortimore, 4 
 De Gex & Jones, 472.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 451 
 
 instrument directing or authorizing such investments) 
 have power at theii* discretion to invest money in the 
 charges authoriz;ed by that Act, or on mortgages 
 thereof (//('). And it is further provided, that no 
 charge on land made by any absolute order of the 
 Inclosure Commissioners by virtue of that Act shall 
 be deemed such an incumbrance as shall preclude a 
 trustee of money, with power to invest the same in the 
 piu'chase of land or on mortgage, from investing it in a 
 purchase or upon a mortgage of the land so charged, 
 unless the terms of his trust or power expressly provide 
 that the land to be so pm-chased or taken in mortgage 
 be not subject to any prior charge (i>). Investments in Real securi- 
 Ireland were often expressly prohibited, ou account of Ireland, 
 an Act of Parliament, which empowered trustees, who 
 were authorized by their trust to lend money at interest 
 on real securities in England, Wales or Grreat Britain, to 
 lend the same at interest on real securities in Ireland (o) . 
 But all loans of money on real securities in Ireland 
 under the Act, in which any minor or unborn child, or 
 person of unsound mind, might be interested, were 
 required to be made by the direction and under the 
 authority of the Court of Chancery in England, to be 
 obtained in any cause or upon petition in a summary 
 way {])) ; and every sucli loan was to be made with 
 the consent of the person or persons, if any, whose con- 
 sent might be required as to the investment of such 
 money upon real secimties in England, Wales or 
 Great Britain, testified in the manner required by the 
 trust {q). And it was also provided that the Act should 
 
 (;h) Stat. 27 & 28 Vict. c. 114, (;>) Stat. 4 & 5 Will. IV. c. 29, 
 
 s, 60. 8. 2 ; £(■ parte French, 7 Sim. 
 
 (m) Ihid., 8. 61. blO ; Ex parte Lord TTiUiam 
 
 {(j) Stat. 4 & 5 Will. IV. c. 29. Faichtf, 1 Phill. 570; Xorris v. 
 
 Leaseholds for lives pcii)ctually Jl'riffht, 14 Bcav. 291. 
 
 renewable at a head rent form Uj) Stat. 4 & 5 Will. IV. e. 29, 
 
 real securities in Ireland; Mac- s. 4. 
 
 leod V. Atnieski/, 16 Beav, 600. 
 
 G G 2
 
 4.j2 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 New enact - 
 ment. 
 
 Meaning of 
 ' ' East India 
 
 Stock." 
 
 General 
 orders may 
 be made for 
 investment. 
 
 not apply to cases wliere there was an express restric- 
 tion against the investment of the trust money on secu- 
 rities in Ireland (r). A recent statute now provides, 
 that when a trustee, executor or administrator shall not, 
 by some instruments creating his trust, be expressly for- 
 bidden to invest any trust fund on real securities in 
 any part of the United Kingdom, or on the stock of 
 the Bank of England or Ireland, or on East India 
 Stock, it shall be lawful for such trustee, executor or 
 administrator to invest such trust fund on such securi- 
 ties or stock ; and he shall not be liable on that account 
 as for a breach of trust, provided that such investments 
 shall in other respects be reasonable and proper (s) . 
 This provision has been made retrospective by Act of 
 parliament (/). At the present time, investment on a 
 mortgage of land in Ireland is generally expressly pro- 
 hibited. By subsequent Acts of Parliament the term 
 " East India Stock," as above used, has been explained 
 to mean East India Stock charged on the revenues of 
 India and created under several subsequent Acts, as 
 well as East India Stock then existing {//). A further 
 enactment empowers the making of general orders from 
 time to time as to the investment of cash under the 
 control of the Court of Chancery, and for the conversion 
 of any 3/. per Cent. Bank Annuities, standing in the 
 name formerly of the accountant-general of the Comi 
 of Chancery and now of the paymaster-general, in trust 
 in any cause or matter, into any stocks, fimds or secm'i- 
 ties, upon which by any such general order cash under 
 the control of the Court may be invested (x). And 
 
 (r) Sect. 5. 
 
 (*•) Stat. 22 & 23 Vict. c. 35, 
 s. 32. As to East India Stock, 
 see Mortimer v. Picton, 4 De Gex, 
 J. & S. 166. 
 
 {t) Stat. 23 & 24 Vict. c. 38, 
 s. 12 ; Cockhiirn v. Peel, 3 De Gex, 
 r. & J. 170; Humey. Richardson, 
 
 4 De Gex, F. & J. 29. 
 
 [u) Stats. 30 & 31 Vict. c. 132; 
 36 Vict. c. 32, s. 16; 37 Vict, 
 c. 3, s. 17; 40 & 41 Vict. c. 51; 
 and 42 & 43 Vict. c. 43. 
 
 (.r) Stats. 23 & 24 Vict. c. 38 
 s. 10 ; 35 & 36 Vict. c. 44, ante, 
 p. 337, n. {h).
 
 OF SETTLEMENTS OF PERSONAL PllOPERTY. 453 
 
 when any sucli general order sliall have been made, 
 trnstees, executors or administrators, having- power to 
 invest their trust funds upon government securities, or 
 upon parliamentary stocks, funds or securities, or any 
 of them, may invest such trust funds ^r any part 
 thereof in any of the stocks, funds or securities, in 
 or upon which, by such general order, cash under the 
 control of the Court may from time to time be in- 
 vested (y) . By a provision of the Rules of the Supreme Present rule. 
 Court, 1883 (c), made under the jurisdiction conferred 
 by this enactment, cash under the control of the Court 
 may be invested in Bank Stock, East India Stock (a), 
 Exchequer Bills, and 21. 10s. per Cent. Annuities, and 
 upon mortgage of freehold and copyhold estates re- 
 spectively in England and Wales, as well as in Con- 
 solidated, Reduced and New 3/. per Cent. Annuities (b). 
 The Debenture Stock Act, 1871 {c), enables trustees, who The Deben- 
 may be empowered to invest trust funds in the mort- Act I87i. 
 gages or bonds of any railway or other company, to 
 invest the same, unless the contrary is expressed in the 
 instrument creating the power, in the debenture stock 
 of any such company. 
 
 Lord Cranworth's Act contained an enactment autho- Further 
 
 • • .1 \ • jj • J.1 ' 1 1 enactment, 
 
 rizmg trustees, having trust money m their hands 
 
 which it was their duty to invest at interest, at theii* 
 
 discretion, or with the consent thereby required, to 
 
 invest the same in any of the parliamentary stocks or 
 
 public funds, or in government securities, and to call in 
 
 (y) Stat. 23 & 24 Vict. c. 38, (b) See Equitable Eevcrsionary 
 
 s. 11. Interest Societi/ v. Fuller, 1 John. 
 
 (z) Ord. XXII. r. 17, to the ScUcm. 319; lie Zanffford,2 John. 
 
 same effect as General Order of & Hem. 458; Me Tf'arde, 2 John. 
 
 1st Feb. 1861, annulled by the & Hem. 191; lie JFiUciiison's Ks- 
 
 Rules of 1883. tate, L. R., 9 Eq. 343 ; lie Tlto- 
 
 (rt) See Ex ^jartc St. John Bap- roWs Settled Estates, L. R., 1 
 
 tist College, O.rford, 22 Ch. D. 93. Eq. 31. 
 
 ('■) Ptnt. 34 Vk't. c. 27.
 
 454 
 
 or PERSONAL ESTATE GENERALLY. 
 
 investments. 
 
 any trust funds invested in any other securities, and to 
 invest the same on any such securities as aforesaid, and 
 Power to vary also from time to time to vary any such investments as 
 aforesaid for others of the same nature {d). This enact- 
 ment, however, like the other provisions in the same 
 Act, extended only to persons acting under a deed 
 executed, or a will executed or confirmed or revived hy 
 a codicil executed after the passing of the Act, which 
 took place on the 28tli of August, 18G0 (c) ; and it is 
 now repealed (/). 
 
 Consent to 
 chang-e of 
 investments. 
 
 The consent of the persons for the time being entitled 
 to the income of the property is generally required, 
 in settlements, to any change of investment which the 
 trustees may be authorized to make ; and this consent 
 is sometuues required to be in writing, and occasionally 
 to be testified by deed. AVhere consent is required, it 
 must be given previously to or at the time of the change 
 of investment {[/) ; for, as the consent is required as a 
 check upon the trustees, a subsequent consent, when 
 the mischief may be done, is evidently unavailing. The 
 person whose consent is required is not, however, the 
 sole judge of the propriety of any change of investment : 
 the trustee, by virtue of his ofiice, has also a discretion ; 
 and if he should consider the investment ineligible, he 
 may refuse to make it, ahhough requested so to do by 
 the person whose consent ought to be obtained {h). But 
 the terms of the instrument may require the trustees 
 to change the investments at the request of any given 
 
 {(l) Stat. 23 & 24 Vict. c. 145, Williams's Conveyancing Sta- 
 
 s. 25. 
 
 (e) Sect. 34. 
 
 (/) By Stat. 44 & 45 Vict. c. 
 41, s. 71 ; see Williams's Con- 
 veyancing Statutes, 250 — 253. 
 Generally, as to the securities on 
 ■which trustees are by law autho- 
 rized to invest trust monov, sec 
 
 tutes, 206—209. 
 
 (ff) Batcman v. Davies, 3 Madd. 
 98 ; GreenJiani v. Glhbesoii, 10 Bing. 
 363; Wiles v. Gresham, 2 Drewry, 
 258. 
 
 (A) Lee v. Yoiokj, 2 You, & Coll. 
 N. C. 532.
 
 lands. 
 
 OF .SETTLEMENTS OF PERSONAL PROPERTY. 455 
 
 jierson ; and in this ease they will generally be bound 
 to act accordingly, unless the circumstances of the ease 
 should be such as were evidently not contemplated when 
 the settlement was made (/). 
 
 In settlements of personal property authority is some- investment of 
 
 times given to the trustees to make investments in the ?^*f}^<l money 
 
 in the pur- 
 purchase 01 landed estates. As land devolves in a dif- chase of 
 
 fereut manner from personal property, it is obvious that 
 a simple change of the property from personalty to land 
 would in many cases materially disarrange the destina- 
 tion of the property. Thus if a persor^ entitled under 
 the settlement to a reversionary interest in the settled 
 fund should have died intestate, his administrator would 
 be entitled to such interest, so long as the property con- 
 tinued to be personal, but, on its being changed into 
 real estate, it would shift to his heir-at-law. In order 
 to obviate this inconvenience, it is so contrived that the 
 lands to be purchased should, from the moment the pur- 
 chase is made, be considered as personal property. To 
 effect this object, the lands when purchased are directed 
 to he held by the trustees upon trust to sell them, with 
 the consent of the equitable tenants for life, dm'ing their 
 lives, and after their decease at the discretion of the 
 trustees (/.•). This trust for sale converts the lands into 
 money in the contemplation of equity ; fur it is a rule 
 of equity, that whatever is agreed to be done shall be 
 considered as done ah'eady. In the words of Sir 
 Thomas Sewell (/), "Nothing is better established 
 than this principle, that money directed to be employed 
 
 (i) lioss V. Ouihall, 1 You. & stat. 47 & 48 Vict. c. 18. 
 Coll. N. C. 617; Cadogan v. Earl (1) In Fletcher v. Ashb/iDwr, 1 
 
 of Essex, 2 Drewry, 227. Bro. C. C. 499, approved by Lord 
 
 {k) See Appendix B. As? to AlxaxAejiuWheldaley. Partridge, 
 
 the settlement of laud upon trust 5 Ves. 396, 397. See also Griffith 
 
 for sale, see "Williams's Convey- v. liicketts, 7 Hare, 299. 
 ancing Statutes, 366 — 371, 505;
 
 456 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Election that 
 land should 
 not be sold. 
 
 in the purchase of land, and land directed to be sold 
 and turned into money, are to be considered as that 
 species of property into which they are directed to be 
 converted ; and this in whatever manner the direction 
 is given, whether by will, by way of contract, marriage 
 articles, settlement or otherwise, and whether the money 
 is actually deposited or only covenanted to be paid, 
 whether the land is actually conveyed or only agreed to 
 be conveyed. The owner of the fund or the contracting 
 parties may make land money, or money land." And 
 if land is clearly directed to be sold, the circumstance 
 that the consent of some person or persons is required 
 to the sale will not prevent the immediate conversion of 
 the land into money in the contemplation of equity, 
 although such a circimistance may often cause a long 
 postponement of the period of its actual conversion {m). 
 Notwithstanding a trust for the sale of land, if all the 
 parties interested should be of full age (>/), and if females 
 unmarried (o), they may elect that the land shall not be 
 sold ; and after such election the land will be considered 
 as real estate in equity as well as at law {])). And the 
 election of the parties need not be expressed in so many 
 words, but may be inferred from any acts by which 
 theu' intention is clearly shown [q). 
 
 Heceipt 
 clause. 
 
 All properly drawn settlements of personal estate 
 formerly contained a power for the trustees or trustee 
 for the time being, acting in the execution of the trusts, 
 to give receipts for any money payable to them or him 
 under the trusts, which receipts it was declared should 
 effectually discharge the persons paying the money 
 from all responsibility as to its application. The 
 
 {m) See Lechmere v. Earl of 
 Carlisle, 3 P. Wms. 218, 219. 
 
 («) Van V. Barnett, 19 Ves. 102. 
 
 (o) Oldham v. Hughes, 2 Atk. 
 452. 
 
 {p) Davies v. Ashford, 15 Sim. 
 42. 
 
 {q) Lingenx.Sowray, IP. Wms. 
 172 ; Cookson v. Reai/, 5 Beav. 22 ; 
 12 CI. &Fin. 121.
 
 OF SETTLEMENTS OF PERSONAL PllOPERTY. 457 
 
 necessity of this provision arose from a rule of equity, 
 by which any person who paid money to another, 
 whom he knew to be merely a trustee, was bound to 
 see the money applied according to the trusts {>•) . If, 
 however, the trusts Avere of such a kind as to require 
 time and discretion to carry them into effect, tlie receipt 
 of the trustees would, from the nature of the case, have 
 been an effectual discharge, without an express clause 
 for this purpose (.s). But by the Act known as Lord St. New enact- 
 Leonards' Act, it is provided, that the bona fide pay- 
 ment to and receipt of any person to whom {mjp/o-c/tdse 
 or )i/o)i(/a<je moiwi/ shall be payable upon any express or 
 implied trust shall effectually discharge the person 
 paying the same from seeing to the application or 
 being answerable for the misapplication thereof, unless 
 the contrary shall be expressly declared by the iubtru- 
 ment creating the trust or security {t). It is the better Not retro- 
 opinion that this enactment is not retrospective ; for it **P^ctive. 
 can scarcely be supposed that the legislature contem- 
 plated the existence of a prescience of this Act in the 
 authors of old settlements, inducing them to insert 
 therein an express declaration that the Act should not 
 apply (?^). A further provision as to trustee's receipts Further 
 was contained in Lord Cran worth's Act (,r), but it ^^^'^tment. 
 applied only to instruments executed and wills or codicils 
 confirmed or revived by codicil executed on or after the 
 28th August, 18G0 ; and it was repealed by the Con- 
 veyancing and Law of Property Act, 1881 (//). It is 
 now enacted in the 36th section of the latter statute (;:), 
 
 (r) Spa/diiir/y. Slutlmcr, 1 Vein. Ltjtton, 2 Jolm. it Hem. lo5, 158. 
 301 ; Lloyd v. Baldwin, 1 Ves. (.() Stat. 23 & 24 Vict. c. 145, 
 
 sen. 173. ?. 29 ; see Williams's Convey- 
 
 (s) Doran-v.jriltshire,SSwanst. ancing Statutes, 190. 
 699; Balfour \. IVelJand, IG Ves. (y) Stat. 44 & 45 Vict. c. 41, 
 
 151. s. 71 ; SCO Williams's Convey- 
 
 (0 Stat. 22 & 23 Vict. c. 35, ancing Statutes, 260—253. 
 s. 23. (--) Stat. 44 & 45 Vict. c. 41, 
 
 (?/) See, however, Jiainclt v. s. 36, .sub-s. 1.
 
 458 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 that the receipt in writing of any trustees or trustee for 
 any money, securities, or other personal property or 
 effects payable, transferable, or deliverable to them or 
 him under any trust or power, shall be a sufficient 
 discharge for the same, and shall effectually exonerate 
 the person paying, transferring or delivering the same 
 from seeing to the application or being answerable for 
 any loss or misapplication thereof. This section applies 
 to trusts created either before or after the commencement 
 of this Act (a). 
 
 Power to ap- 
 point new 
 trustees. 
 
 Statutory 
 power to ap- 
 point new 
 trustees. 
 
 Every settlement, the trusts of which were likely to 
 be of long duration, formerly contained a power of ap- 
 pointing new trustees in the event of any trustee dying, 
 going to reside bej^ond the seas, desiring to be dis- 
 charged, refusing, or becoming incapable to act in the 
 execution of the trusts [b). And as the mere appoint- 
 ment of a trustee was not sufficient to vest the trust 
 property in him, it was usual and proper to direct that, 
 on every such appointment, the trust property should 
 be so conveyed, assigned, transferred or paid as effectu- 
 ally to vest the same in the new trustee jointly with the 
 surviving or continuing trustees, or solely, as the case 
 might require. Every new trustee was also invested 
 with the same powers as the original trustees. Lord 
 Cranworth's Act contained provisions, as to the appoint- 
 ment of new trustees, which rendered unnecessary the 
 insertion of an express power for that purpose in instru- 
 ments executed after the passing of that Act, which 
 took place on the 28th of August, 1860 (c). These 
 provisions were repealed by the Conveyancing and 
 Law of Property Act, 1881 (c/), which contains the 
 
 (rt) Sect. 36, sub-s. 2 
 Williams' s Conveyancing 
 tutes, 189—191. 
 
 (6) See Appendix B. 
 
 {>') Stat. 23 & 24 Yict. c. 14 
 
 see ss. 27, 34 ; see Williams's Cou- 
 Sta- veyancing Statutes, 177. 
 
 {d) Stat. 44 & 45 Vict. c. 41, 
 s. 71 ; see WiUiams's Convey- 
 ancing Statutes, 250—253.
 
 OF SETTLEMENTS OF PKKSOXAL PROPERTY. 4.59 
 
 following enactments as to the appointment of new 
 trustees {r) : — 
 
 (Sect. 31, sul)-s. 1.) Where a trustee, either original 
 or substituted, and whether appointed by a Court or 
 otherwise, is dead, or remains out of the United King- 
 dom for more than twelve mouths, or desires to be 
 discharged from the trusts or powers reposed in or 
 conferred on him, or refuses or is unfit to act tliereiu, 
 or is incapable of acting tlierein, then the person or 
 persons nominated for this purpose by the instrument, 
 if any, creating the trust, or if there is no such person, 
 or no such person able and willing to act, then the 
 surviving or continuing trustees or trustee for the time 
 being, or the personal representatives of the last sur- 
 viving or continuing trustee, may, by writing, appoint 
 another person or other persons to be a trustee or trustees 
 in the place of the trustee dead, remaining out of the 
 United Kingdom, desiring to be discharged, refusing or 
 being xmfit, or being incapable, as aforesaid. 
 
 (Sub-s. 2.) On an appointment of a new trustee, the 
 number of trustees may bo increased. 
 
 (Sub-s. -i.) On an appointment of a new trustee, it 
 shall not be obligatory to appoint more than one new 
 trustee, where only one trustee was originally appointed, 
 or to fill up the original number of trustees, where more 
 than two trustees were originally appointed ; but, except 
 where only one trustee was originally a})pointed, a 
 trustee shall not be discharged imder this section from 
 his trust unless there will be at least two trustees to 
 perform the trust. 
 
 (Sub-s. 4.) On an appointment of a new trustee any 
 assurance or thing requisite for ^•esting the trust pro- 
 perty, or any part thereof, jointly in the persons who 
 are the trustees, shall be executed or done. 
 
 (Sub-s. 5.) Every new trustee so appointed, as well 
 
 {(') See Williams's Couve3-anciug Statutes, 176 — 180, 514.
 
 460 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 before as after all the trust property becomes by law, or 
 by assurance, or otherAvise, vested in him, shall liavo the 
 same powers, authorities and discretions, and may in all 
 respects act, as if he had been originally appointed a 
 trustee by the instrument, if any, creating the trust. 
 
 (Sub-s. 6.) The provisions of this section relative to 
 a trustee who is dead include the case of a person nomi- 
 nated trustee in a will but dying before the testator ; 
 and those relative to a continuing trustee include a 
 refusing or retiring trustee, if willing to act in the 
 execution of the provisions of this section. 
 
 (Sub-s. 7.) This section applies only if and as far as 
 a contrary intention is not expressed in the instrument, 
 if any, creating the trust, and shall have effect subject 
 to the terms of that instrument and to any provisions 
 therein contained. 
 
 (Sub-s. 8.) This section applies to trusts created either 
 before or after the commencement of this Act. 
 
 Appointment A mere power to appoint a new trustee does not 
 
 of new triis- ■, ■, • l l • j.* i • r 
 
 tees discre- render such appointment imperative ; and m case oi 
 tionary. j^\^q death of any trustee, the survivors or smwivor may 
 
 still carry on the ordinary business of the trust (/). 
 The power of appointing new trustees conferred by 
 statute is also discretionary ; and need not be exercised 
 so long as there remains a single trustee capable of 
 Retirement of executing the trust (f/). When a trustee has once 
 accepted the office, he can only retire tlierefrom (1) if 
 all the cesfiiis que find be sni Juris, and concur in re- 
 leasing him, or (2) by means of a valid exercise of an 
 express or statutory power to appoint a new trustee in 
 his place (//), or (3) under the authority of the Court (/), 
 
 trustee. 
 
 (/) Warhurton v. Sandys, 14 
 Sim. 622 ; see s^tat. 44 & 45 Vict. 
 c. 41, s. 38 ; Williams's Con- 
 veyancing Statutes, 194 — 198. 
 
 {g) See Williams's Conveyanc- 
 
 ing Statutes, 197, 198, 341. 
 
 [h) See Adams v. Taxjnter, 1 
 CoU. 530, 532. 
 
 (j) Howard v. Rhodes, 1 Keen, 
 581 ; Coventry v. Coventry, ib. 758.
 
 OF SETTLEMENTS OF PERSONAL PROrERTY. 461 
 
 or (4) upon tlie execution of a deed made in pursuance 
 of the following- provisions of the Conveyancing and 
 Law of Property Act, 1881 (/.:) : — 
 
 (Sect. 32, sub-s. 1.) Where there are more than two 
 trustees, if one of them by deed declares that he is 
 desirous of being discharged fi'om the trust, and if his 
 co-trustees and such other person, if any, as is empowered 
 to appoint trustees, T)y deed consent to the discharge of 
 the trustee, and to vesting in the co-trustees alone of 
 the trust property, then the trustee desirous of being 
 discharged shall be deemed to have retired from the 
 trust, and shall, by the deed, be discharged therefrom 
 under this Act, without any new trustee being appointed 
 in his place. 
 
 (Sub-s. 2.) Any assurance or thing requisite for vest- 
 ing the trust property in the continuing trustees alone 
 shall be executed or done. 
 
 (Sub-s. 3.) This section applies only if and as far as 
 a contrary intention is not expressed in the instrument, 
 if any, creating the trust, and shall have effect subject 
 to the terms of that instrument and to any provisions 
 therein contained. 
 
 (Sub-s. 4.) This section applies to trusts created either 
 before or after the commencement of this Act. 
 
 As we have seen (/), upon the appointment of a new Vesting trust 
 trustee, or upon the retirement of a trustee by vii-tue uew'or^co'n- 
 of the enactment quoted above, the trust property must tinuing- trua- 
 be effectually vested in the persons, who will thereafter 
 be the trustees. This must be done by an express con- 
 veyance or assignment in all cases -which do not fall 
 ■within the 34th section of the Conveyancing and Law 
 of Property Act, 1881 {)>/) : unless there be circum- 
 stances which would enable the jiarties to obtain an 
 
 (/i) See Williams's Coiiveyanc- (;«) Stat. 44 & 45 Vict. c. 41 ; 
 
 ing Statutes, 180, 512, 513. see Williams's Conveyancing Sta- 
 
 (/) A>ifc, pp. 458, 459. tutes, 181—185, 512, 513,
 
 462 OF PERSONA I, ESTATE GENERALLY. 
 
 order of the Court, vesting the trust property in the 
 manner desired, under the Trustee Acts, 1850 and 
 1852 {ii). Tlic o4th section of the Conveyancing and 
 Law of Property Act, 1881, which applies only to deeds 
 executed after tlie 81st of December, 1881 (o), contains 
 the following- provisions : — 
 
 (Sub-s. 1.) Where a deed by which a new trustee is 
 appointed to perform any trust contains a declaration 
 by the appointor to the effect that any estate or interest 
 in any land subject to the trust, or in any chattel so 
 subject, or the right to recover and receive any debt or 
 otlier thing in action so subject, shall vest in the persons 
 who by virtue of the deed become and are the trustees 
 for performing the trust, that declaration shall, without 
 any conveyance or assignment, operate to vest in those 
 persons, as joint tenants, and for the j)urposes of the 
 trust, that estate, interest or right. 
 
 (Sub-s. 2.) "Where a deed by which a retiring trustee 
 is discharged under this Act contains such a declaration 
 as is in this section mentioned by the retiring and con- 
 tinuing trustees, and by the other person, if any, em- 
 powered to appoint trustees, that declaration shall, 
 without any conveyance or assignment, operate to vest 
 in the continuing trustees alone, as joint tenants, and 
 for the purposes of the trust, the estate, interest or right 
 to which the declaration relates. 
 
 (Sid3-s. 3.) This section does not extend to any legal 
 estate or interest in copyhold or customary land, or to 
 land conveyed by way of mortgage for seeming money 
 subject to the trust, or to any such share, stock, annuity, 
 or property as is only transferable in books kept by a 
 company or other body, or in manner prescribed by or 
 under Act of Parliament {p). 
 
 («) Stats. -13 & 14 Vict. c. GO; (o) Stat. 44 & 45 Vict. c. 41, 
 
 15 & 16 Vict. c. 55; see below; ss. 1, 34, sub-s. 5. 
 
 and see Williams's Conveyancing (p) See (inte, pp. 330, 342, 347, 
 
 Statutes, 182. 360,
 
 oi- s;ettlk>[f,nt>; oi' persoxat. provktm v. 463 
 
 A couveyance or transfer made for effeftiiatiug the Stamp duty. 
 appointment of a new trustee is not to be charged witli 
 any higher duty than ten shillings {(/). It has, how- 
 ever, been held that, where there is first an appointment 
 of a new trustee, and then a conveyance or transfer of 
 the trust property, a further stamp of ten shillings is 
 necessary (r). 
 
 The appointment of new trustees might formerly he Appointment 
 effected, under the general jurisdiotion of the Court of the Court. 
 Chancery to execute trusts, upon the institution of a 
 suit for that purpose (.s). The Trustee Acts, IbOO (/) Trustee Act, 
 and 1852 (u), empowered the Court of Chancery to '^ ' 
 make an order appointing new trustees, upon petition, 
 "whenever it should be expedient to appoint them, 
 and it should be found inexpedient, difficult or im- 
 practicable so to do without the assistance of that 
 Court, and either in substitution for, or in addition 
 to, any existing trustee (.<), and wdiether there were 
 any existing trustee or not (//). Provision is also made 
 in the same Acts for the appointment of a new trustee 
 in lieu of any trustee who may have been convicted of 
 felony (z), or have become a lunatic {r/) ; aud jurisdiction Vesting 
 is given to make an order, vesting in any person or persons ^^ ^^' 
 the interest of any trustee or executor in any land, 
 stock (/>) or c/iose in actio)) subject to the trust, in the 
 
 {q) Stat. 33 & 34 Yict. c. 97, (,v) Stat. 15 .<c 16 Vict. c. 5.5. 
 
 8. 78. [x] Stat. 13 & 14 Viet. c. (iO, 
 
 (?•) Iladgcitv. I'Jtc Commhkioncrs ss. 32, 35. 
 
 of Inland Picvowe, Z 'Eli. T>. 'iG. {>j) Stat. 15 .^- KJVirt. c. 55, 
 
 (*) See Jloivard v. Jlhodes, 1 s. 9. 
 
 Keen, 581 ; Coventry v. Corentnj, {z) Sect. 8. 
 
 ib. 758 ; Bodkin v. Brunt, L. R., {a) Sect. 10. 
 
 6 Eq. 580 ; Williams's Convey- (/') In these Acts the word 
 
 ancing Statutes, 177, 178. "stock" means any fund, an- 
 
 {t) Stat. 13 «fe 14 Vict. c. 60. nuity or security transferable in 
 
 See Principles of the Law of Real books kept by any company 
 
 Property, p. 174, 13th ed. ; 179, or society established or to be 
 
 14th ed. established, or transferable by
 
 464 OP ^KRS0^'AL estate generally. 
 
 case of his lunacy or idiocy (c), or of bis being out of tbe 
 jimsdiction of the Court, or not being found, or of its 
 being uncertain whether he is living or dea,d{d), or of 
 his neglecting or refusing to convey any land, or to 
 transfer any stock, or to receive the dividends or income 
 thereof, or to sue for or recover any chose in action (c). 
 Jurisdiction is also given to make similar vesting orders 
 upon making any order for appointing a new trustee (/) ; 
 and to make orders vesting in others the interest of any 
 infant trustee in any land or stock subject to the trust {g). 
 As we have seen (/<), the jui-isdiction of the Court of 
 Chancery in respect of all these matters is now vested 
 in the High Court of Justice, and exercised in the 
 Chancery Division. The jurisdiction of the Court with 
 regard to the execution of trusts and under the Trustee 
 
 Cjunty Acts may be exercised by the County Courts in cases in 
 
 which the trust estate or fund does not exceed 500/, in 
 amount or value (/). It is now provided that every 
 trustee appointed by the Court of Chancery, or by the 
 Chancery Division of the Court, or by any other Court 
 of competent jurisdiction, shall, as well before as after 
 the trust projoerty becomes by law, or by assurance, 
 or otherwise, vested in him, have the same powers, 
 authorities and discretions, and may in all respects act, 
 as if he had been originally appointed a trustee by the 
 
 Bankniptcyof instrument, if any, creating the trust (/.'). In the event 
 
 trastee. 
 
 deed, alone, or by deed accom- {e) Ibid. ss. 23, 24, 25 ; stat. 
 
 panied by other formalities, and 15 & 16 Vict. c. 55, ss. 2, 4, 5. 
 
 any share or interest therein (/) Stat. 13 & 14 Vict. c. 60, 
 
 (stats. 13 & 14 Vict. c. 60, s. 2 ; ss. 34, 35. 
 
 15 & 16 Vict. c. 55, s. 12) ; and {g) Ibid. ss. 7, 8; 15 & 16 Vict. 
 
 includes shares in joint-stock c. 55, s. 3. 
 
 companies ; lie Angclo, 5 De G. [h) Ante, pp. 99, 318, 361. 
 
 & Sm. 278. {i) Stat. 28 & 29 Vict. c. 99, 
 
 (c) Stats. 13 & 14 Vict. c. 60, s. 1. 
 
 ss. 3—6 ; 15 & 16 Vict. c. 55, {k) Stat. 44 & 45 Vict. c. 41, 
 
 ss. 10, 11. 8. 33, which applies to appoint- 
 
 id) Stat. 13 & 14 Vict. c. 60, ments made either before or after 
 
 ss. 9 — 12, 14, 22, 25. the commencement of that Act,
 
 OF SETTLEME^•TS OF PERSONAL PROPERTY. 465 
 
 of the bankruptcy of any trustee, the Com't is cm- 
 powered to appoint a new trustee in his place by means 
 of the Trustee Act, 1850 (/). 
 
 The office of trustee of a settlement is one involving Trustees' 
 great responsibility, and frequently much trouble, with- ^esponsibili- 
 out any remuneration ; for a trustee is not allowed to ties. 
 make a profit of his trust. And if he be a solicitor, Solicitor can- 
 he cannot receive payment' for his professional trouble profei^^Ju!ii 
 incurred in the business of the trust {m), unless he trouble, 
 expressly stipulate before accepting the office, that he 
 shall bo permitted to do so (;?), or unless his charges 
 be voluntarily paid by the cestui que trust with full 
 knowledge that they might have been resisted (o). But 
 a trustee may charge against the trust property all costs 
 and expenses properly incm-red in the conduct of the 
 trust (^^). And it has been held, that in the event of a 
 suit being brought against the trustees, one of the trus- 
 tees, being a solicitor, may be employed by his co- 
 trustees, and may make the usual charges against them, 
 provided the amount of the costs be not thereby in- 
 creased (q). And every trustee is allowed in a suit his 
 full costs, as between solicitor and client (r). But his 
 
 As to the previous law, see («) lie Sherwood, 3 Beav. 388. 
 
 Williams's Conveyancing Sta- (o) Stancs v. Tar/i-er, 9 Beav. 
 
 tutes, 181. 385. SeeGomlei/v. TFoocI, 3 Jones 
 
 (/) Stat. 46 & 47 Vict. c. 52, & Lat. 678. 
 
 8. 147. Stat. 32 & 33 Vict. c. 71, {p) See Jcssel, M. H., Turner 
 
 s. 117, -was to the same effect ; v. Hancock, 20 Ch. D. 303, 305. 
 
 aeo Coombcs V. Brookes, Y.'CW., [q) Cradoc/c v. Piper, 1 Mac. & 
 
 Law Rep., 12 Eq. 61 ; lie Barker's Gord. 664 ; Clac/c v. Carlon, V.-C. 
 
 Trusts, M. R., 1 Ch. D. 43 ; Me W., 7 Jur., N. S. 441. See, how- 
 
 Adams' Trusts, 12 Ch. D. 634. ever, Lincoln v. Windsor, 9 Hare, 
 
 {m) Moore v. Froivd, 3 My. & 158 ; Lyon v. Baler, 5 De Gex & 
 
 Craig, 45 ; Fraser v. Palmer, 4 Sm. 622 ; Broufjhton v. Broughton, 
 
 You. & Coll. 515; Collins x. Carey, L. C, 1 Jur., N. S. 9G5 ; 5 De 
 
 2 Beav. 128 ; Bainbrigge v. Blair, Gex, M. & G. 160. 
 
 8 Beav. 588; Todd v. Wilson, 9 (/•) 2 Fonb. Eq. 176. See also 
 
 Beav. 486. See Ex parte Newton, Turner \. Uancoclc, 20 Ch. D. 303, 
 
 3 Do Gex & Sm. 584. 
 
 W.P.P. 11 II
 
 466 OF PERSONAL ESTATE GENERA I.L^. 
 
 right to costs may be forfeited by bis negligence or mis- 
 concliict (.s) ; or be may even be made to pay the costs of 
 the other parties (t) . As the trustee has the legal title 
 to the property, he is often enabled, if fraudulently in- 
 clined, to sell it or spend it for his own benefit. It is 
 therefore highly proper that his conduct should be 
 narrowly scrutinized, and that he should be invariably 
 punished for any breach of faith. But the Chancery 
 Division of the High Court goes further than this, and 
 punishes, with almost eqiial severity, his neglect of 
 duties, which in many cases he scarcely knows that he 
 has undertaken. Thus, if a trustee, by his negligence 
 or misplaced confidence in his co-trustee, gives him an 
 opportunity to commit a breach of trust, of which 
 oj)portunity the co-trustee avails himself, the innocent 
 trustee will be made to replace the whole of the fund 
 abstracted by the other (?/). So if the trustee should 
 depart from the letter of his trust, as by investing 
 the trust fund on an unauthorized security, although 
 at the importunity of some of the parties interested, 
 and with a bona fide desii'e to benefit them all, he 
 will be answerable for any loss which such departure 
 may have occasioned (.r) . And if, being ignorant of 
 law, he should give himself up entirely to his profes- 
 sional adviser, he may still suffer from the mistake of 
 his solicitor or counsel (y) ; and in such a ease he will 
 
 (*■) Campbell \. Campbell, 2 My. 422 ; Llx v. Bin-ford, 19 Beav. 
 
 & Craig, 25 ; Iloivard v. Mliodes, 1 409. 
 Keen, 581. (x) Driver \. Scott, 4 Euss. 195 ; 
 
 {t) Wilson V. inison, 2 Keen, Fride v. Fools, 2 Beav. 430 ; For- 
 
 249 ; TTillis v. Siscox, 4 My. & rest v. Elwes, 4 Ves. 497 ; Watts 
 
 Craig, 197 ; Firmin v. Piilham, 2 v. Girdlestone, 6 Beav. 188. 
 De Gex & Sm. 99. (y) Willis v. Eiscox, 4 My. & 
 
 {i() Lord Shipbrook v. Lord Craig, 197 ; Atiffiery. Staiinard, ^ 
 
 Hinchinbrooli, 11 Ves. 252; Brice My. & Keen, 566; Hampshire v. 
 
 V. Stokes, 11 Ves. 319; Manbunj Bradley, 2 Coll. 34; Boulton v. 
 
 V. KirJdand, 3 Sim. 265 ; Boothy. Beard, 3 De Gex, M. & G. 608 ; 
 
 Booth, 1 Beav. 125 ; Broadhurst Selbome, C, Stott v. Milne, 25 
 
 V. Balgmj, 1 You. & CoU. N. C. Ch. D. 710, 714. See, however, 
 
 16 ; Styles v. Guy, 1 Mac. & Gord. Poole v. Pass, 1 Beav. 600 ; Eol-
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 467 
 
 scarcely jierhaps see the justice of the remark that 
 he might (had he kuown how) have chosen a wiser soli- 
 citor, or a more learned counsel (z) . In all ordinary 
 settlements, clauses used to he inserted for the indem- 
 nity and reimbursement of trustees, to the effect that 
 they should not he answerable the one for the other of 
 them, or for signing receipts for the sake of conformity, 
 or for involuntary loss ; and that they might reimburse 
 themselves out of the trust funds all costs and expenses 
 incurred in relation to the trust. But these clauses, 
 though often very highly valued by trustees, really 
 afforded tliem little, if any, further protection than they 
 would have been entitled to, if left to the ordinary rules 
 of equity {a) . It has, however, been recently enacted New enact- 
 that every deed, will or other instrument creating a 
 trust, either expressly or by implication, shall be deemed 
 to contain these clauses (b) . It would have been more 
 direct, and therefore more philosophical, to alter the 
 rules of equity with respect to trustees, if alteration 
 were required, rather than to enact that a deed shall 
 be deemed to contain clauses which in fact are not 
 there. 
 
 In order to provide means for securing trust funds. Trustee Relief 
 and for relieving trustees from the responsibility of ^'^^^' 
 administering them. Acts of Parliament were passed 
 in the years 1847 and 1849 (c), whereby all trustees, 
 executors, administrators or other persons having in 
 their hands {d) any monies belonging to any trust 
 whatsoever, or the major part of them {e), may pay the 
 
 ford V. Phu)ps, 3- Beav. 434 ; 4 {h) Stat. 22 & 23 Vict. c. 35, 
 
 Beav. 475. s. 31. 
 
 (r) 3 My. & Keen, 572. (<) Stats. 10 & 11 Viet. c. 96, 
 
 {a) Fcnu-ick v. Greeicell, 10 s. 1 ; 12 & 13 Vict. c. 74. 
 
 Beav. 412; Brumrldgey. Bruin- {d) Buckky^s Trusts, 17 Beav. 
 
 ridge, 27 Beav. 6. See also Re 110. 
 
 Speight, Speight v. Gaunt, 22 Ch. {e) See etat, 12 & 13 Vict. c. 74. 
 D. 727 ; 9 App. Cas. 1. 
 
 IIH 2
 
 468 
 
 or PERSONAL ESTATE GENERALLY. 
 
 County 
 Courts. 
 
 same, -with, the privity, formerly of the accountant- 
 general of the Court of Chancery, and now of the pay- 
 master-general (/), into the Bank of England, to the 
 account of the paymaster-general in the matter of the 
 trust, in trust to attend the orders of the Court. Bank 
 Annuities, East India and South Sea Stock, and govern- 
 ment and parliamentary securities, held upon trust, may 
 also be transferred or deposited in like manner. The 
 trust is then administered by the Court upon petition 
 in a summary way, without an action, unless the Court 
 direct one to be brought (g) . Applications under these 
 Acts are now to be disposed of in chambers in all cases 
 where the money or securities in Court do not exceed 
 1,000/., or 1,000/. nominal value (Z/). Where the fund 
 does not exceed in amount or value the sum of 500/., 
 jurisdiction is now given to the County Courts ; the 
 fund, if money, being paid into a post office savings 
 bank established in the town in which the County Court 
 is held, in the name of the registrar of the Court, in 
 trust to attend the orders of the Court. And stocks or 
 securities may be transferred into or deposited in the 
 names of the treasurer and registrars of the Court upon 
 the like trust {i). "Where there is not a treasurer, a 
 person shall be nominated, by rule of practice, to whom 
 the transfer or deposit, in conjunction with the registrar, 
 may be made {k). 
 
 Punishment 
 of fraudulent 
 trustees. 
 
 Power to 
 apply for the 
 
 Salutary enactments have recently been made for the 
 punishment of fraudulent trustees, dii-eetors, public 
 officers and managers of corporations and public com- 
 panies (/). Other Acts empower any trustee, executor 
 
 (/) Stat. 35 & 36 Vict. c. 44 ; 
 ante, p. 337, n. (/*). 
 
 iff) Stat. 10 & 11 Vict. c. 96, 
 s. 2. 
 
 {k) Eulesof the Supreme Court, 
 1883, Ord. LV. r. 2 (5). 
 
 {i) Stat. 30 & 31 Vict, c, 142, 
 ss. 24, 25. 
 
 (k) Ibid. 8. 24. 
 
 (/) Stat. 24 & 25 Vict. c. 96, 
 ss. 80—86. The stat. 20 & 21 
 Vict. c. 54, was repealed by stat. 
 24 & 26 Vict. c. 95.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 469 
 
 or administrator, by petition or statement to be signed opinion of a 
 hy counsel, to apply to any judge of tlie Cliancery Divi- J^^^®- 
 sion of tlie High Coui't, for his opinion, advice or direc- 
 tion on any question respecting the management or 
 administration of the trust property (m). 
 
 In some marriage settlements, in addition to the Covenants for 
 settlement actually made, a covenant is inserted for the ^^ifc'^rfTture 
 settlement of all such property as the intended wife shall property, 
 become entitled to during the coverture or marriage ; 
 and in a marriage settlement, a covenant to settle the 
 wife's after-acquired property will, in the absence of 
 expressions showing a contrary intention, be construed 
 as applying only to property acquired during the cover- 
 ture, althougli it be not expressly so limited (n). A 
 reversionary interest belonging to the wife at the time of 
 the marriage will not generally be considered as bound 
 by a covenant to settle her ciftcv-acquired property (o), 
 unless it should fall into possession during the cover- 
 ture [p), ^liether property, to which the wife is en- 
 titled in possession at the time of the marriage, is 
 bound by such a covenant is a question of intention, 
 often of some difficulty, to be determined by the lan- 
 guage used, aided by the context {q). Of late years it 
 has been usual, in di-awing up an agreement to settle 
 property of an intended wife not specifically dealt with 
 
 {m) Stat. 22 & 23 Vict. c. 35, (;;) Blythew. Granville, 13 Sim. 
 
 s. 30 ; 23 & 24 "Vict. c. 38, s. 9. 190 ; Ex parte Blalcc, 16 Beav. 
 
 (h) Dickinson v. Dillwi/n, L. 403; Archer v. Kdli/, 1 Dr. & S. 
 
 R., 8 Eq. 546 ; Carter v. Carter, 300. 
 
 L. R., 8 Eq. 551 ; In re Edwards, [q) See Grafftey v. llumpage, 1 
 
 L. R., 9 Ch. 97. See also Jle Beav. 46; James v. Burant, 2 
 
 CampbelPs Policies, Q Gh..D. Q^&. Beav. 177; Eoare v. Hornby, 2 
 
 (o) In re Pedder's Settlement You. & Coll. N. C. 121 ; Otter v. 
 
 Trusts, L. R., 10 Eq. 585 ; In re Melvill, 2 De Gox & Smale, 257 ; 
 
 Clinton's Trust, L. R., 13 Eq. Wilton v. Colvin, 3 Drew. 617; 
 
 295 ; In re Jones's mil, 2 Ch. D. Archer r. Kelly, 1 Drew. & S. 
 
 362 ; Re MichelVs Trusts, 9 Ch. 300. 
 D. 5.
 
 470 OF PERSONAL ESTATE GENERALLY. 
 
 in lier marriage settlement, to word the agreement so 
 as to include property, to which she may he entitled at 
 the time of executing the settlement for any estate or 
 interest whatever, as well as property, to which she 
 may become entitled during the continuance of the in- 
 tended marriage (>■). If a covenant to settle the wife's 
 future property should have been entered into by the 
 intended husband alone, the wife will not be bound to 
 settle any future property to which she may become 
 entitled for her separate use («), or as her separate 
 property under the Married Women's Property Act, 
 1882 {t). If, however, the intended wife should have 
 entered into an agreement to settle her after-acquired 
 property, her contract will bind any property to which 
 she may become entitled for her separate use or as 
 her sej)arate property {n). Since the 1st of January, 
 1883, when the Married Women's Property Act, 1882, 
 came into operation, there has been no occasion for an 
 intended husband to enter into any covenant of this 
 kind. If it be desired to include in a marriage settle- 
 
 (>•) See Be MacJienzie's Settle- Brooks v. Keith, 1 Drew. & S. 
 merit, L. R., 2 Ch. 345 ; At/ar v. 462 ; Coventry v. Coventry, 32 
 George, 2 Ch. D. 706 ; Cornmell v. Beav. 612 ; Be Ma in war in g'' s Set- 
 Keith, 3 Ch. D. 767 ; Sweetapple tlcmcnt, L. R., 2 Eq. 487 ; Camp- 
 V. Horloch, 11 Ch. D. 745; Be bell v. Bainbridge, L. R., 6 Eq. 
 Jackson's Will, 13 Ch. D. 189; 2&Q; Dawes w TrediLrU,l^Ch..'D. 
 Davidson, Free. Conv. Vol. III., 354. 
 
 200, 212, 3rd ed. Eor a form of {t) Stat. 45 & 40 Vict. c. 75. See, 
 
 such an agreement, see Williams's however, sect. 19 ; and Be Stonor's 
 
 Conveyancing Statutes, 510. Trusts, 24 Ch. D. 195; Williams's 
 
 (i) Douglas \. Congreve, 1 Keen, Conveyancing Statutes, 447. 
 
 410, 423 ; Travers v. Travers, 2 («) Be Allmitt, Pott v. Brassey, 
 
 'Besi\. \12 ; Drury X.Scott, 4:Yo\\. 22 Ch. D. 275; Scholfield v. 
 
 & Coll. 264 ; Bamsden y. Smith, Spooner, 26 Ch. D. 94. As to 
 
 2 Drew. 298 ; Hammond v. Ham- the effect of such an agreement 
 
 mond, 19 Beav. 29 ; Young v. when the intended wife is an in- 
 
 Smith, 35 Beav. 87. See also faut, see Smith v. Lucas, 18 Ch. 
 
 Butcher V. Butcher, 14 Beav. 222; D. 631 ; Wilder v. Prout, 22 Ch. 
 
 Cramer v. Moore, 3 Sma. & Giff. D. 263. 
 141 ; Grey v. Stuart, 2 Giff, 398 ;
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 471 
 
 ment any property of the intended wife, •wliicli is not 
 specifically dealt with, therein, it is now absolutely neces- 
 sary that she should herself enter into the covenant or 
 contract for settlement ; and it is sufficient for her to 
 covenant or contract alone (.r). 
 
 Occasionally covenants are unadvisedly entered into Covenants to 
 by the intended husband to settle on his chikben, or to ^^^^'^ p^o. 
 leave to them by his will, all the property that he may perty. 
 acquire during- the covertiu'e, or all liis property gene- 
 rally (//) . So a father may covenant, on the marriage 
 of his daughter, to leave her as great a share in his 
 property as to any of his other children (:;). These 
 covenants will be enforced in equity; but from their 
 vague and uncertain character they are likely to lead 
 to much litigation. A covenant to settle property of a 
 given value, when no time is limited for its performance, 
 creates no lien on any of the property of the cove- 
 nantor {a) . And it appears to be now settled, contrary to 
 what was before supposed to be the law, that no lien is 
 created whether a time for the performance of the cove- 
 nant be specified or not [h). 
 
 Maniage, as we have seen (c), is a valuable considera- Marriage 
 tion. Every settlement, therefore, made by parties of cqua%^valid 
 f idl age, previously to and in consideration of marriage, as a purchase. 
 or made subsequently to marriage in piu'suance of 
 
 {x) See Williams's Conveyanc- C. B. 1. Sec r/ie/p v. Amcotts, 
 
 ing Statutes, 418, 510. V.-C. J., 17 W. K. 703. 
 
 {>j) Lewis V. MadocJcs, 17 Ves. («) FreemouU v. Dedirc, 1 P. 
 
 48 ; XeedJiam v. SinitJi, 4 Russ. Wms. 429 ; Bcrrbigton v. Evans, 
 
 318; Keedhamv Eirkman, 4 Bam. 3 You. & Coll. 384. 
 & Aid. 531 ; Hardey v. Green, 12 (i) Mornington v. Eeane, 2 De 
 
 Beav. 182. See ante, p. 42 and Gex & Jones, 292, explaining 
 
 note {g). Eoioidell \. Brearcij, 2 Vern. 482; 
 
 {z) Tnilis V. Elac/c, illusa. 170; and questioning WcUtslcijy. Wei- 
 
 Clegg v. Clcgg, 2 Russ. & My. 570 ; Icsley, 4 My. & Cr. 561, 581. 
 Enrdkij v. Owen, 10 Beav. 572 ; (t) Ante, p. 114. 
 
 Jones V. JIoiv, 7 Hare, 267 ; 9
 
 472 OF PERSONAL ESTATE GENEllALLY. 
 
 written articles {(I), stands on the footing of a purchase, 
 and has equal validity. But it is enacted in the Bank- 
 ruptcy Act, 1883 (e), as we have seen (/), that any 
 covenant or contract made in consideration of marriage, 
 for the future settlement on or for the settlor's wife or 
 children of any money or property wherein he had 
 not at the date of his marriage any estate or interest, 
 whether vested or contingent, in possession or remainder, 
 and not being money or property of or in right of his 
 wife, shall, on his becoming bankrupt before the pro- 
 perty or money has been actually transferred or paid 
 pursuant to the contract or covenant, be void against 
 Voluntary the trustee in the bankruptcy. A voluntary settlement 
 Toidas against is liable to be defeated by the creditors of the settlor, if 
 creditors. ]^q ^,r^g g^ much indebted at the time as to bring the 
 
 settlement within the provisions of the statute of the 
 13th of Elizabeth (g) already noticed {//), by which the 
 alienation of goods and chattels made for the purpose of 
 delaying, hindering or defrauding creditors, is rendered 
 void as against them. For although by the phrase 
 " goods and- chattels " was intended only such personal 
 property as could be taken by the sheriff under an exe- 
 cution on a judgment (/), yet as almost all kinds of 
 personal property may now be taken in execution (/.■), 
 or charged with the payment of judgment debts (/), 
 all such property is now within the compass of the 
 Bankruptcy, statute (;;/). As we have seen, the Bankruj)tcy Act, 
 
 {d) Stat. 29 Car. II. c. 3, s. 4. Ee BnttencoHh, 19 Ch. D. o88 ; 
 
 See ante, p. 118. He Ridler, 22 Ch. D. 74. 
 
 {e) Stat. 46 & 47 Vict. c. 52, (A) Ante, -g. 61. 
 
 s. 47, sub-s. 2. (i) Shns v. Thomas, 2 Adol. & 
 
 (/) Ante, p. 362. Ell. 536. See ante, p. 81. 
 
 {(j) Stat. 13 EUz. c. 5; Slcarf (/r) Stat. 1 &2 Vict. c. 110, s. 12. 
 
 V. Soidby, 1 Mac. & G-ord. 364 ; See ante, p. 172. 
 
 Freeman v. Pope, L. R., 9 Eq. {I) Stats. 1 & 2 Vict. c. 110, 
 
 206, affirmed L. E., 5 Ch. 538; s. 14 ; 3 & 4 Vict. c. 82, s. 1 ; 
 
 Mackay v. Douglas, V.-C. M., L. ante, pp. 337, 372. 
 
 E., 14 Eq. 106; Ex parte Russell, {m) See Edwards v. Cooper, 11
 
 OF SE1TLEME3STS OF PERSONAL PROPERTY. 473 
 
 1883 (»), contains provisions, under wliich a voluntary 
 settlement of any property (o) may become void, in the 
 event of the subsequent bankruptcy of the settlor, as 
 against the trustee in the bankruptcy. It is provided Married 
 by the Married "Women's Property Act, 1882 {p), that '^°™®°- 
 no settlement or agreement for a settlement, whether 
 made before or after maniage, respecting the property 
 of any married woman, shall have any greater force or 
 validity against creditors of such woman than a like 
 settlement or agreement for a settlement made or 
 entered into by a man would have against his creditors. 
 
 Although a voluntary settlement may thus be defeated Voluntary 
 by creditors, yet, when once completed, it is binding on bindin"- on 
 the settlor, who cannot by any means imdo it {q) . Thus, *^^ settlor. 
 in one case (r), a maiden lady not immediateh" contem- 
 plating marriage, but thinking such an event possible, 
 transferred a sum of stock into the names of trustees in 
 trust for herself until she should marry, and, after her 
 marriage, in trust for her separate use for her life, free 
 from the control of any person or persons- with whom 
 she might intermarry, and, after her decease, upon trusts 
 for the benefit of any such husband, and her child or 
 children by any husband or husbands. She afterwards, 
 beiug still unmarried, filed a bill in Chancery, praying 
 that the settlement might be delivered up to her to be 
 
 Q. B. 33 ; Barrack v. M'CuUocJi, 1 De Gex, Mac. & Gord. 176 ; 
 
 3 Kay k John. 110; Jcnhyn v. Bcntley \. Mackay, 15 Beav. 12; 
 
 Vauijhan, 3 Drew. 419. Bridrjc v. Bridge, 16 Beav. 315 ; 
 
 («) Stat. 46 & 47 Vict. c. 52, Be JJ'ai/^s Settlement, Lds. Jus., 
 
 8. 47, ante, pp. 261, 262. 13 "VV. R. 149; 2 De Gex, Jones 
 
 (o) See sect. 168, ante, p. 233. & Smith, 365; Paul v. Paul, 19 
 
 {p) Stat. 45 & 46 Vict. c. 75, Ch. D. 47 ; 20 Ch. D. 742. 
 s. 19 ; Williams's Conveyancing ('•) Bill v. Citrcton, 2 My. & 
 
 Statutes, 447. Keen, 503. See also Petre v. 
 
 {q) FMison V. Ellison, 6 Ves. Espinasse, 2 My. & Keen, 496; 
 
 656 ; Edirards v. Jones, 1 My. & M'Bonncll v. Hcsilrige, 16 Beav. 
 
 Craig, 220 ; Xeicton v. Askew, 11 346; Bonaldsonw. Donaldson, Kay, 
 
 Beav. 145; Kekeuich \. Manning, 7li.
 
 474 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Power of 
 revocatiou. 
 
 cancelled, and that the stock might be ordered to be 
 re-transferred by the trustees. But the Court held that 
 she was bound by the settlement she had made, and 
 was not entitled to any assistance to release her from 
 it. It is, however, the duty of every solicitor who pre- 
 pares a voluntary settlement to suggest the insertion of 
 a power of revocation. And in some cases the Court 
 of Chancery has set aside voluntary settlements irre- 
 vocably made in ignorance that such a power might 
 have been inserted (s). But the absence of a power of 
 revocation is not of itself a ground upon which the 
 Court will set aside a voluntary settlement. In order 
 to avoid such a settlement, it must be shown that, when 
 the settlor executed it, he did not imderstand what its 
 effect would be (f) . 
 
 Settlement 
 for settlor's 
 own benefit 
 revocable by 
 him. 
 
 If the object of the settlor is merely his own benefit 
 or convenience, the settlement will be revocable by him 
 at his pleasure. Thus, where a man, without any com- 
 munication with his creditors, puts property into the 
 hands of trustees for the purpose of paying his debts, 
 his object is said to be, not to benefit his creditors, but 
 to benefit himself by the payment of his debts {u). He 
 may accordingly revoke the trust thus created (.r), so 
 as the creditors remain in ignorance of it {>/). 
 
 long 
 
 (s) See FhilUjJs v. MnUings, L. 
 E., 7 Ch. Ap. 244, 247; Hally. 
 Sail, L. E., 8 Ch. 430, 436—438. 
 
 {t) See Fhillips v. M/illinffs, L. 
 E., 7 Ch. 244, 246 ; Sail v. Sail, 
 L. E., 8 Cb. 430, 438 ; Sennj v. 
 Armstrong, 18 Ch. D. 668 ; Did- 
 ton V. Thompson, 23 Ch. D. 278. 
 
 {u) Per Sir C. Pepys, M. E., 2 
 My. & Keen, 511 ; cited by Wi- 
 gram, V.-C, in Siif/hes v. Stuhhs, 
 1 Hare, 479. 
 
 (a) Garrard v. Lord Lauderdale, 
 3 Sim. 1 ; Acton v. IFoodgate, 2 
 
 My. & Keen, 492 ; Ravenshaiv v 
 Sollier, 7 Sim. 3 ; law v. Hag- 
 u-ell, 4 Dru. & Warren, 398 
 Smith V. Keating, 6 C. B. 136 
 Driver v. Maicdesley, 16 Sim. 511 
 Johns Y. James, 8 Ch. D. 744. 
 
 {ij) JSroume v. Cavendish, 1 Jones 
 & Lat. 606, 635; Grijith v. 
 Ricketts, 7 Hare, 299, 307 ; Mac- 
 kinnon v. Stewart, 1 Sim. N. C. 
 7G, 89, 90; Sarland v. Binks, 15 
 Q. B. 713; Smith v. Surst, 10 
 Hare, 30. But see Cornthxcaite 
 V. Frith, 4 De Gex & Smale, 552.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 475 
 
 This inile, however, though well established, seems to 
 attribute to debtors a somewliat light estimation of the 
 claims of their creditors ; aud there appears to be no 
 disposition in the Courts to extend it (z). 
 
 The statute of Elizabeth (a), by which voluntary Voluntary 
 settlements of lands and other hereditaments are void ^^ttlemcuts 
 
 01 personal 
 
 as against subsequent purchasers for valuable considera- estate not 
 tion, though it extends to chattels real {b), does not subsequent^ 
 apply to purely personal estate (c). A voluntarj^ settle- P^irchasers. 
 ment of personal estate cannot therefore be defeated by 
 a subsequent sale of the property by the settlor. 
 
 Settlements of any definite and certain principal sum Stamps on 
 of money, of any currency, whether British, foreign, or ^^^^lenients. 
 colonial, or of any definite and certain share in the 
 funds, or India promissory notes, or in the stocks or 
 funds of any foreign or colonial state or government, or 
 in the capital stock or funded debt of any company, 
 corporation or society in the United Kingdom, or of 
 any foreign or colonial company, corporation or society, 
 are now liable to an ad valorem duty of one-fourth per 
 cent., or five shillings per hundred pounds, on the 
 amount of the money or the value of the stock or share 
 settled, according to the schedule contained in the 
 Stamp Act, 1870 ((/). The duty on the settlement of Policy of 
 money secured by a policy of assurance is now charged '^^^^^^°®' 
 on the smn secured (c) ; but if there be no provision 
 made for keeping up such policy, then the ad valorem 
 duty is chargeable only on the value of the policy at 
 
 [z) See Wild'uifj v. Richards, 1 14th ed. 
 Coll. 661; Simmoiids v. Falks, 2 (b) Co. Litt. 3b; G Rep. 72. 
 
 Jones & Lat. 489 ; Kirican v. (c) 2 My. & Keen, 512. 
 
 Daniel, 5 Hare, 493, 499—501. [d) Stat. 33 & 34 Vict. c. 97, 
 
 («) Stat. 27 Eliz. c. 4 ; Prin- es. 2, pars. (8), (9), 3. 
 ciples of the Law of Ileal Pro- [i-] Sect. 124. 
 
 perty, pp. 79, 80, 13th od. ; 82,
 
 476 OF PERSONAL ESTATE GENERALLY. 
 
 the date of the settlement (./'). And if the instrument 
 contains a statement of such vahie, and is stamped in 
 accordance with such statement, it is, so far as regards 
 such policy, to be deemed duly stamped, unless or until 
 it is shown that such statement is untrue, and that the 
 instrument is in fact insufhciently stamped [g). 
 
 The Succes- By the Succossiou Duty Act, 1853 (Ji), provision has 
 Act 18*5:1. been made for charging certain duties on the succession 
 to property upon the death of any person djdng after 
 the 19tli of May, 1853. These duties are at the same 
 rates as the legacy duty, of which an account will be 
 given in the Chapter on Wills, increasing in proportion 
 to the distance in consanguinity between the prede- 
 cessor, from whom the interest succeeded to is derived, 
 and the successor. 
 
 Money settled We have seen (?) that, if a trust be declared to lay 
 out money in the purchase of land, the money will be 
 considered as real estate in equity. If, therefore, money 
 be subject to a trust for the investment thereof in the 
 purchase of land, which is to be settled according to the 
 limitations of some specified settlement, until land be 
 actually purchased pursuant to the trust, the money 
 will devolve according to the limitations of the settle- 
 Proceeds of ment. When land, subject to a settlement, is sold 
 land."* '^"^""^ under the powers of sale given by law or by the settle- 
 ment (A'), the money, which arises from the sale, is 
 generally subject to a trust for the application thereof 
 in tlie purchase of land to be conveyed to the uses 
 of the settlement (/). Under the Settled Land Act, 
 1882 (;«), money, which is subject to a trust for the 
 
 (/) Stat. 33 & 3i Vict. c. 97, ing Statutes, 295—298. 
 
 s. 12-1, par. (1). . {I) Ibid. 292, 297; Principles 
 
 {g) Ibid. par. (2). of the Law of Real Property, 
 
 (A) Stat. 16 & 17 Vict. c. 51. p. 309, 13th ed. ; 321, 14th ed. 
 (i) Ante, pp. 455, 456. {»>) Stat. 45 & 46 Vict. c. 38, 
 
 {J>) See Williams's Conveyanc- ss. 2 (sub-s. 9), 21, 32, 33; see
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 477 
 
 investment thereof in tlie pui'cliase of land to be made 
 subject to a settlement, may be invested, at the direc- 
 tion of the tenant for life, in the names of the trustees 
 for the purposes of that Act upon the securities thereby 
 authorized {n) ; and such money and the investments 
 thereof will be considered as land, for all purposes of 
 disposition, transmission and devolution (o) . By making 
 use of the powers conferred by this Act, any person, 
 who may be entitled to exercise the powers of a tenant 
 for life under this Act (p), may have any such money 
 so invested upon any authorized securities in the nature 
 of personal estate {q). And the trustees may hold such 
 securities as a permanent investment ; and need not 
 apply the money so invested in the pm'chase of land, 
 until directed to do so by a person entitled to exercise 
 the powers of a tenant for life under the Act (r). The 
 lec/al interest in any such securities belongs to the 
 trustees and will devolve in their hands as personal 
 estate, like any other personal property vested in 
 trustees upon trusts declared by a settlement (s) . But 
 in equity the money so invested is regarded as real 
 estate, and the equitable or beneficial interest therein 
 will devolve in all respects according to the limitations 
 of the settlement. 
 
 Sometimes it is desired to settle pictures, plate, iewels Chattels per- 
 
 sonal settled 
 
 or other chattels, so that the same may be used by the to go with 
 person for the time being entitled to some particular ^^^'^• 
 landed estate, which is limited in settlement. lu such 
 cases the chattels in question are assigned to trustees to 
 
 jRe MacJcenziv' s Trusts, 23 Ch. D. [p) See sects. 2 (sub-ss. 5 — 7), 
 
 750; Williams's Conveyanciug 58—62; ibid, pp.291, 292, 294, 
 
 Statutes, 292, 325, 334, 335. 297, 361— 3G5. 
 
 («) See sects. 21,22; Williams's (<?) See sect. 21 (i) ; ibid. p. 
 
 Couveyancing Statutes, 325 — 327. 326. 
 
 (o) See sect. 22, eub-ss. 6, 6 ; (/■) See sect. 22 ; ibid. p. 327. 
 
 Williams's Conveyancing Sta- («) See ante, p. 427. 
 
 tutes, 327.
 
 478 OF PERSONAl, ESTATE GENERALLY, 
 
 bo held upon such trusts as shall correspond, as nearly 
 as the rules of law and equity -will permit, with the 
 uses declared by the settlement of the land (/) . When 
 chattels are so settled, they are popularly said to be 
 settled as "heirlooms," as we have seen («). As there 
 cannot be an estate tail in personal property (.r), the 
 first person, who becomes entitled to the land under 
 the settlement for an estate tail, will become abso- 
 lutely entitled to any chattels, which have been so 
 settled (//). In the case of and during the infancy 
 of the first tenant in tail, this result would gene- 
 rally be undesu-able. It is therefore usual to provide 
 that any chattels so settled shall not vest absolutely in 
 any person made tenant in tail by purchase under the 
 settlement, unless he shall attain the age of twenty-one 
 years, but shall devolve, on his death under that age, as 
 if they were freeholds of inheritance limited to the uses 
 of the settlement (;:). Such a proviso shoidd be limited 
 to the case of the death under age of a tenant in tail 
 by purchme (a), in order to avoid any infringement of 
 the rule against perpetuities (h). Under the Settled 
 Land Act, 1882 (c), chattels so settled may be sold, at 
 the instance of the tenant for life of the land ; and the 
 money to arise from the sale may be applied as capital 
 money arising imder that Act (f/), or may be invested 
 in the purchase of similar chattels to be settled in the 
 same way. But no such sale or purchase of chattels 
 can be made without an order of the Com-t. 
 
 {i) Williams ou Settlements, («) See Principles of the Law 
 
 225. of Eeal Property, p. 101, 13th 
 
 (u) Ante, p. 14. ed. ; 103, 14th ed. 
 
 {x) Ante, p. 432. {b) Ante, p. 435. See David- 
 
 [y) Foley \. BnrneU, 1 Bro. C. son, Prec. Conv., Vol. III. 602, 
 
 C. 274 ; 4 Bro. P. C. 319. note {s), 3rd ed. 
 
 (::) Davidson, Prec. Conv. Vol. (c) Stat. 45 & 4G Vict. c. 38, 
 
 III. 602, 624—627, 3rd ed. ; Vol. s. 37 ; see Williams's Oonvey- 
 
 I. 401, 4th ed. ; Williams ou ancing Statutes, 339. 
 
 Settlements, 223—225. {d) See sect. 21 ; ibid. pp. 325, 
 
 326.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 479 
 
 Leaseliolcls lield for long terms of years are frequently Leaseliolds 
 settled together with freehold land. In such cases the ^v[tVfi.ee-^'° 
 leaseholds are assigned to trustees to be held upon such l^oid.s. 
 trusts as shall correspond, as nearly as the rules of law 
 and equity will permit, with the uses declared of the 
 freeholds, with a like proviso, to meet the event of 
 the death under age of a tenant in tail by purchase, 
 as in tlie case of cliattels personal settled to go Avith 
 freeholds (e). 
 
 {(■) SeeWilliams on Settlements, III. 599, 3rd ed. ; Vol. IV. 399, 
 223 ; Davidson, Prec. Conv. Vol. 4tli cd.
 
 480 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 CHAPTEE II. 
 
 OF JOIKT OWNERSHIP AND JOINT LIABILITY. 
 
 Joint owners. There may be a joint ownership of any kind of per- 
 sonal property, in the same manner as there may be a 
 joint tenancy of real estate {a) ; and the foiu* unities of 
 possessio)!, inferesf, title and tiuie, which characterize a 
 joint tenancy of real estate, ajDply also to a joint o\\Tier- 
 ship of chattels. But as no estates can exist in personal 
 property, the distinctions which hold with respect to 
 joint estates for life, in tail, or in fee, do not occur in a 
 joint ownership of personalty. If personal property, 
 whether in possession or in action, be given to A. and 
 B. simply, they will be joint owners, having equal rights 
 as between themselves, dm-ing the joint ownership, and 
 being, with respect to all other persons than themselves, 
 in the position of one single owner. Hence it follows, 
 that if a bond or covenant be given or made to two or 
 more jointly, they must all join in suing upon it {b) ; 
 and a release by one of them to the obligor is sufficient 
 to bar them all (r) . As a further consequence of the 
 unity of joint ownership, the important right of sur- 
 vivorship, w'hich distinguishes a joint tenancy of real 
 estate, belongs also to a joint ownership of personal 
 property. Whether the subject of the joint ownership 
 be a chattel real as a lease, or a chose in possession as 
 a horse, or a chose in action as a debt or legacy, the 
 sm-viving joint owner will be entitled to the whole. 
 
 Joint bond, 
 all must sue. 
 
 Release by 
 one bars all. 
 
 Survivorsliip. 
 
 (ff) See Princij)les of the Law 
 of Real Property, p. 134, 13th 
 ed. ; 137, 14th ed. 
 
 (b) SUngsbifs case, 6 Rep. 18 b ; 
 Fetrie v. Bury, 3 Bam. & Cress. 
 353; 1 Wms. Saund. 291 i, 
 
 {c) 2 Rol. Abr. 410 (D.), pi. 1, 5.
 
 OF JOINT OWNERSHIP AND JOINT LIARILITY. 481 
 
 unaffected by any disposition wliicli the deceased joint 
 
 owner may have made by his will, unless the joint 
 
 tenancy should have been previously severed in the 
 
 lifetime of both the parties (^/). And for this reason Trustees of 
 
 trustees of settlements of personal estate are always cstatTmade 
 
 made joint owners, in order that the surviving trustees i'^i^* owners. 
 
 may take the entire fund, rather than that the executors 
 
 or administrators of any trustee who may happen to die 
 
 should have any right to intermeddle with the share of 
 
 the deceased. Where any beneficial interest accrues to Succession 
 
 any joint owner by survivorship, it is deemed a succes- 1353^ °*' 
 
 sion within the Succession Duty Act, 1853, and as such 
 
 liable to the succession duty {e). 
 
 If the joint ownership be created by a will, it is not Tlie share of 
 necessary that the shares of all the joint owners should un^ei^rwill 
 vest at the same time. Thus under a bequest to A. for need not vest 
 life, and after his decease to the issue (/) or children [g) time. 
 of B., without words of severance, all the issue or chil- 
 dren, born in A.'s lifetime, will become entitled jointly, 
 though some may not be living when the shares of the 
 others become vested interests. On the decease of any 
 of them therefore before payment, the survivors will 
 become entitled to their shares. A similar exception to 
 the imity of ti))ie occurs also in the ease of a devise of 
 real estate by will (A) . 
 
 In analogy to the rule by which a joint estate in Limitation to 
 fee-simple in lands is created by a limitation to two or {|^'J|* cxccu-^' 
 
 more, tJieir lieirs and assigns, it was customary with con- tors, adminis- 
 trators and 
 
 {d) Litt. sects. 281, 282 ; Zndi/ s. 3 ; ante, p. 476. assigns. 
 
 Shore v. BilUngsley, 1 Vem. 482 ; (/) Bridge v. Yates, 12 Sim. 
 
 Willing v. Baine, 3 P. "Wms. 115 ; 645. 
 
 Morley v. Bird, 3 Ves. 629 ; Wil- (g) Amies v. Skilleni, 14 Sim. 
 
 liams V. Henshaw, 1 John. & H. 428. 
 
 546 ; Baillie v. Treharne, V.-C. {h) See Principles of the Law 
 
 M., 17 Ch. D. 388. of Eeal Property, 137, 13th od. ; 
 
 {c) Stat. 16 & 17 Vict. c. 51, 140, 14th ed. 
 
 W.P.P. 1 I
 
 482 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 Joint bonds 
 and cove- 
 nants. 
 
 Joint or 
 several. 
 
 veyancers to make a gift of personal estate to two or 
 more jointly, by limiting it to them, iJieir executors, 
 adminktmtoi's and assigns. This, however, though usual, 
 was not strictly necessary. In ill-framed instruments, 
 limitations of personalty were sometimes made to two 
 persons, " and the survivor of them, and the executors 
 and administrators of such survivor." If, however, the 
 persons are simply made joint owners, the law will be 
 sufficient of itself to carry the property to the survivor. 
 And it is now by no means unusual to vest personal 
 estate in two or more persons, as joint owners, simply 
 by conveying it to them, -without further words. Bonds 
 and covenants, when intended to be given or made to 
 two or more jointly, were in like manner usually given 
 or made to the obligees or covenantees, their executors 
 and administrators; or, if the subject-matter were assign- 
 able, to them, their executors, administrators and assigns. 
 But it was always unnecessary expressly to extend the 
 benefit of a personal covenant or obligation, made with 
 or to two or more persons jointly, to the survivors of 
 them or to their executors, administrators or assigns (e). 
 And it is now not unusual simply to exj^ress that such 
 covenants and obligations are made with or to certain 
 specified persons, without fuiiher words (Z-). But when 
 entered into with two or more persons, bonds or cove- 
 nants cannot, as respects the obligees or covenantees, be 
 joint or several, at their election, for one and the same 
 cause ; for otherwise the court would be in doubt for 
 which of them to give judgment (/). And whether a 
 covenant be joint or several depends much more upon 
 the subject-matter than upon the words employed. If 
 each of the covenantees has a separate interest, each 
 
 (i) See "Williams's Conveyanc- 
 ing Statutes, 236, 498, n. [a). 
 
 {k) See iUd. p. 498. See stat. 
 44 & 45 Vict. 0. 41, s. 60 {ibid. 
 pp. 235—237), as to the effect of 
 
 a covenant, a contract under seal 
 or a bond or obligation under 
 seal, made with two or more 
 Jointly. 
 
 (/) o Rep. 19 a ; 1 East, 501.
 
 OF JOINT 0"\VNERSHIP AND JOINT LIABILITY. 483 
 
 may have a separate cause of action, and tlio covenant 
 will accordingly in sucli a case be several, though ex- 
 pressed to be made with the covenantees jointly and 
 severally (y;^). But if each of the covenantees has not 
 a separate cause of action, all of them must concur in 
 suing- upon the covenant, even although it be expressed 
 to be made with some of them, " and as a separate 
 covenant " with the others {ii) ; for if all may sue, all 
 must (o). 
 
 An exception to the right of survivorship between Partners in 
 joint owners occm-s in the case of partners in trade. In y^^orship of'*" 
 this case the law, in order to the encouragement of choses in pos- 
 commerce, vests in the executors or administrators of a 
 deceased partner, the share of the deceased in all per- 
 sonal chattels in possession, such as merchandize or ships, 
 which were the joint properly of the partnership {p). 
 But this rule does not extend at law to choses in action, Otherwiso as 
 which must accordingly be sued for in the name of the action at law. 
 survivor (5'). In equity, however, the share of the de- But not in 
 ceased partner, both in the choses in possession and in 
 action belonging to the partnership, devolves on his 
 executors or administrators. The consequence is that, 
 though the choses in action must be sued for by the 
 surviving partner, ho %vill be a trustee of the share of the 
 deceased partner for his executors or administrators (r). 
 The same rule is applied in equity even to real estate Real estate 
 
 purcliascd for 
 (»j) 5 Eep. 19 a; 1 Wms. v. Strimjfield, 3 C. B., N. S. 2. 
 Saimd. 1.55 a, n. (1). (;j) Co. Litt. 182 a; Kempe v. 
 («) SHngshy''n case, 5 Rep. 18 b; Andrews, 3 Lev. 290 ; Rex v. Col- 
 Anderson V. Martindale, 1 East, lector of Customs, 2 Man. & Selw. 
 497 ; Foletj v. Addenbrooke, 4 Q. 223 ; Bucklcij v. Barber, 6 Excli. 
 B. 197 ; Ilopkinson v. Lee, 6 Q. Rep. 164. 
 
 B. 964 ; Bradburne v. Botfield, 14 [q) Martin v. Crompe, 1 Lord 
 
 Mee. & Wels. 559 ; WakcfcJd v. Raym. 340 ; S.C.I Salk. 444 ; 2 
 
 Broicn, 9 Q. B. 209 ; KeigUlcy v. Wms. Saund. 117 b, n. (2). 
 Watson, 3 Exch. Rep. 716. (r) Jeffercya v. Small, 1 Veni. 
 
 (0) 4 Q. B. 208; Wctherell v. 217; Lake \. Craddock,ZV. ^ms. 
 
 Langston, 1 Exch. Rep. 634 ; Pugh 168. 
 
 .1x2
 
 484 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 partnersliip 
 
 pm-poses. 
 
 purchased for the purposes of a trading partnersliip («), 
 and conveyed to the partners as joint tenants in fee. On 
 the decease of any of them, equity holds the survivors to 
 be trustees of the share of the deceased for his executors 
 or administrators as part of his personal estate (f). 
 
 Joint owner- 
 ship not 
 favoured in 
 equity. 
 
 No survivor- 
 ship in equity 
 of joint secu- 
 rities. 
 
 Indeed, as a general rule, joint ownership is not 
 favoiu-ed in equity, on account of the right of survivor- 
 ship which attaches to it {u). If therefore two persons 
 advance money by way of mortgage or otherwise, and 
 take the security to themselves jointly, and one of them 
 die, the survivor will be a trustee in equity for the re- 
 presentatives of the deceased, of the share advanced by 
 him (.r). And it was formerly necessary, when the in- 
 tention was that the survivor should receive the whole, 
 that a declaration should be inserted that his receipt 
 alone should be a sufficient discharge for the money 
 secured (//). An enactment contained in the Convey- 
 ancing and Law of Property Act, 1881, has rendered 
 unnecessary the insertion of such a declaration in mort- 
 gages or obligations made or transferred to two or more 
 persons jointly after the 31st of December, 1881 (s). 
 
 Ownership in 
 common. 
 
 An ownership in common (or, as it is usually styled 
 in analogy to real estate, a tenancy in common) of 
 chattels may arise either from the severance of a joint 
 ownership, or from a gift to two or more to hold in 
 
 {s) Randall v. Bandall, 7 Sim. 
 271. 
 
 {t) Phillips V. PhilUps, 1 My. & 
 Keen, 649, 663 ; Broom v. Broom, 
 3 My. & Keen, 443 ; Morris v. 
 Eearsley, 2 You. & Coll. 139 ; 
 BUgh Y. Brent, 2 You. & Coll. 
 258 ; Soughton v. Houghton, 11 
 Sim. 491 ; Custance v. Bradshaiv , 4 
 Hare, 315, 322 ; Barhj v. Barhxj, 
 3 Drew. 495: see Coolcson v. Cook- 
 
 son, 8 Sim. 529 ; JTaterer v. 
 Watercr, L. R., 15 Eq. 402. 
 
 («) 2 Atk. 55 ; 2 Ves. sen. 258. 
 
 {x) Petty V. Styward, 1 Chan. 
 Eep. 57 ; 1 Eq. Ca. Ab. 290. 
 
 [xj) See Principles of the Law 
 of Eeal Property, 436, 13th ed. ; 
 459, 14th ed. 
 
 {£) Stat. 44 & 45 Vict. c. 41, 
 s. 61 ; see Williams's Convey- 
 ancing Statutes, 238—240.
 
 OF JOINT OAVNERSHIP AND JOINT L1A15IL1TY. 485 
 
 common {a). But a joint ownership of a chose in action 
 cannot be severed at law by either, or even by both, of 
 the joint OANTicrs. Thus in case of the bankruptcy of a 
 joint creditor, by whicli all his estate becomes vested in 
 his assignees, an action against the debtor must be 
 brought in the joint names, formerly of the assignees, 
 and now of the creditors' trustees and the other joint 
 creditors {h). And if two joint creditors should become 
 bankrupt, the action must be brought in the joint 
 names, formerly of the assignees, and now of the cre- 
 ditors' trustees of both of them (e). A tenancy in No tenancy 
 common cannot in fact exist at law of a chose in action, law^of Tchase 
 A. may owe 20/. to B. and C. jointly, or he may owe ^ action. 
 10/. to B. and 10/. to C. ; but he cannot owe 20/. to B. 
 and C. in common. If each has a several cause of 
 action, each must sue separately. In equity, however, Otherw-ise in 
 the case is different. Though B. and C. are joint ^^^^^^' 
 owners at law, in equity they may be owners in com- 
 mon ; 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 re- Letters- 
 gard to letters-patent, it appears that, even at law, they ^'^ ^^ ' 
 may be the subject of an ownership in common, and 
 that the assignee of an undivided share may alone sue 
 for an infringement of that part of the patent, with- 
 out joining the persons interested in the remaining 
 shares (d). And one owner in common of letters-patent 
 can work the patent on his own account, without the 
 
 (a) Litt. sect. 321. spect of any contract jointly with 
 
 (J) Thomasoii v. Frcre, 10 East, any person or persons, such per- 
 
 418. See atat. 46 «S: 47 Vict. son or persons may sue or he sued 
 
 c. 52, s. 113, and the repealed in respect of the contract, without 
 
 stats. 32 & 33 Vict. c. 71, s. 105 ; the joinder of the bankrupt. 
 
 12 & 13 Vict. c. 106, s. 152, (c) See Hancock v. Ueijivood, 3 
 
 and 5 & 6 Vict. c. 122, s. 31. T. Rep. 433. 
 
 But by Stat. 46 & 47 Vict. c. 52, {d) Dunnkliff v. Mallet, 7 C. 
 
 8. 114, as imder the repealed stat. B., N. S. 209; Walton v. Lavater, 
 
 32 & 33 Vict. c. 71, s. 112, where 8 C. B., N. S. 162. See Berg- 
 
 a bankrupt is a contractor in re- Mann v. Macmillan, 17 Ch. D. 423,
 
 486 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Gifts by will 
 which make a 
 tenancy in 
 common. 
 
 concurrenco of tlie others (e). In deciding whether a 
 tenancy in common has been created by deed, there is 
 very seldom any difficulty. But in wills, where greater 
 indulgence is given to informal words, the rule is, that 
 any words which denote an 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" (,/'), or simply "between 
 them" {(/), or "in joint and equal proportions" (A), or 
 " equally " (/), or " respectively " (/.•), or " to be enjoyed 
 alike" (/), 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 (ni). 
 
 Owners in 
 common have 
 merely a 
 unity of pos- 
 session. 
 
 No survivor- 
 shij). 
 
 Owners in common of personal estate, like tenants in 
 common of lands, have merely a unity of possession : 
 the interest of one may be larger or smaller 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, who may have severed 
 the joint 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 (it). 
 
 {e) Mathers v. Green, L. C, 
 L. R., 1 Ch. 29; 11 Jur., N. S. 
 845. 
 
 (/) BKsset V. CramveU, I Saik. 
 226 ; Phillips V. mUlips, 2 Vern. 
 430 ; 1 Eq. Ca. Abr. 292, pi. 6 ; 
 1 P. Wms. 34. 
 
 {g) Lashhrook v. Cock, 2 Mer. 
 70. 
 
 (/() Ettricke v. Ettricke, 2 Ambl. 
 656. 
 
 (i) Lewen v. Bodd, Cro. Eliz. 
 443. 
 
 (A) 1 Atk. 580; 1 Ves. sen. 104. 
 
 {J) Loveacrcs d. Mudge v. Blight, 
 Cowp. 352. 
 
 {m) See 2 Jarm. Wills, 2o7 ct 
 seq. 4th ed. 
 
 [n) Litt. sect. 321.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 487 
 
 Connected with the subject of joint ownership is that Joint liabi- 
 of joint liability. Two or more persons may be jointly ^*^' ' 
 liable to tlie same debt or demand. In a joint bond, 
 the obligors, according to the usual form, bound them- 
 selves, 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 (»), 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 di-awn without naming them. In 
 every case of joint liability, each is liable for the whole 
 debt (o), yet they are aU, like joint owners, considered 
 as one person. They should accordingly all be sued 
 together during their joint lives (p) ; and a release to Release of 
 one of them will discharge them all (q) . It is, however, ^?,^ discharges 
 provided by the Bankruptcy Act, 1883, that the order Dischar^-e by 
 of discharge of a bankrupt shall not release any person Banki-uptcy 
 who at the date of the receiving order was a partner or 
 co-trustee with the bankrupt, or was jointly bound, or 
 had made any joint contract with him (r). And if any Discharge by 
 person jointly liable upon any simple contract shall be statute of 
 discharged by the Statute of Limitations, but his co- 
 contractor or co-contractors shall be liable by vu'tue of 
 a new acknowledgment or promise, judgment may be 
 given and costs allowed against the latter person or 
 persons only (.s) . And if such person or persons shall 
 
 (m) Ante, pp. 159, IGO. (r) Stat. 46 & 47 Vict. c. 52, 
 
 (o) 1 Baru. & Aid. 35. s. 30, bub-s. 4, ante, p. 269. The 
 
 (p) 1 Wms. Saund. 291b, n.(4) 
 Kendall v. Hamilton, 4 App. Cas 
 504, 515, 51G, 542—544. 
 
 {q) 2 Kol. Abr. 412 (G), pi. 4 
 Clayton v. Ki/naston, 3 SaLk. 574 
 2 "Wins. Saund. 47 gg, n. (1) 
 Warwick v. liichardson, 14 Sim 
 281. 
 
 previous enactments were stats. 
 31 & 32 Vict. c. 71, 8. 50 ; 24 & 
 25 Vict. c. 134, s. 163; 12 & 13 
 Vict. 0. 106, 8. 200 ; 5 & G Vict, 
 c. 122, s. 37 ; and 6 Geo. IV. c. 16, 
 s. 121. 
 
 (5) Stat. 9 Geo. IV. c. 14, s. 1.
 
 488 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Absence be- 
 yond seas. 
 
 After the de- 
 cease of one 
 joint debtor 
 the survivor 
 solely liable. 
 
 plead in abatement that the other ought to be jointly 
 sued, and it shall appear that he was discharged by the 
 statute, the issue joined on such plea shall be found 
 against such person or persons pleading the same (;*). 
 The fact of one joint debtor being beyond the seas at 
 the time when the cause of action accrues, will not 
 deprive the others of the benefit of the Statutes of 
 Limitation ; and the recovery of judgment against any 
 who were not beyond seas, will be no bar to an action 
 against the absent debtors on their return. And for 
 this purpose no part of the United Kingdom, nor the 
 Isle of Man, nor the Channel Islands, are to be con- 
 sidered as beyond seas {u). After the decease of any 
 one joint debtor the survivors or survivor of them may 
 still be sued for the whole debt, as though the deceased 
 had no share in it (*■), and the estate of the deceased 
 will be discharged from all liability both at law and in 
 equity (?/). So if a judgment be obtained against two 
 or more jointly, and one of them die, the estate of the 
 survivor or survivors, whether real or personal, will be 
 exclusively liable to be taken in execution ; although 
 the real estate of the deceased, having formerly been 
 bound from the date of the judgment, was until recently 
 liable to contribute equally with the real estate of the 
 survivors (s) . 
 
 Joint and 
 several lia- 
 bility. 
 
 A liability, however, may be both joint and several 
 at the same time ; and, as such a liability is more bene- 
 ficial to the creditor, it is more usual than a liability 
 which is simply joint. A joint and several bond by 
 
 (0 Sect. 2. 
 
 («) Stat. 19 & 20 Vict. c. 97, 
 ss. 11, 12. 
 
 (.r) Richards v. Heather, 1 Baru. 
 & Aid. 29. 
 
 {y) Richardson v. Ilorton, G 
 Beav. 185 ; Wilmer v. Ctirrey, 2 
 De Gex & Smale, 347 ; Crossleij v. 
 
 Dobson, 2 De Gex & Smale, 486 ; 
 Other V. Iveson, 3 Drew. 177. 
 
 [z) 3 Eep. 14 b ; Smarte v. Ed- 
 sun, 1 Lev. 30 ; 2 Wms. Saund. 
 51. See now stat. 27 & 28 Vict. 
 0. 112 ; Principles of the Law of 
 Real Property, p. 89, 13th ed. ; 
 92, 14th ed.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 
 
 489 
 
 two persons ran in this form : — " for which payment to Form of a 
 be [well and truly] made, we bind ourselves, and each sgN-eral^bond. 
 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 obligors, 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 fom* of us, [and the heirs, executors and 
 administrators of us, and each of us, and of any two, 
 three, or four of us,] jointly and severall3\" But now, 
 as we have seen (a), express mention of heirs, executors 
 and administrators is imnecessary ; and the words en- 
 closed within brackets in the forms given above may be 
 and are now constantly omitted. In the case of a 
 joint and several bond thus worded, an action may be 
 brought against all the obligors, or against any one, 
 two, three or four of them whom the obligee may 
 select ; otherwise he must have sued either all of them 
 jointly, or anyone of them singly (i). A joint and Form of a 
 several covenant was usually in this form : — " And the several cove- 
 said A. B. and C. D. do hereby, for themselves [their naut. 
 heirs, executors and administrators] jointly, and each of 
 them doth hereby for himself respectively, [and for his 
 respective heirs, executors and administrators,] cove- 
 nant," &c. ; or if there were more than two covenantors, 
 the better form was, for the reason above given, " And 
 the said A. B., C. D., E. F. and O. H., do hereby, for 
 themselves [their heirs, executors and administrators] 
 jointly, and any two or three of them, do hereby, for 
 themselves [their heirs, executors and administrators] 
 jointly, and each of them doth hereby for himself re- 
 spectively [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 
 
 {a) Ante, pp. 159, 160. (*) Ter Buller, J., in Streatfield 
 
 V. HaUiday, 3 T. Hep. 782.
 
 490 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Release of 
 one. 
 
 to sue one. 
 
 and several liability, each party is individually liable, 
 and may be sued alone for the whole debt, or, if the 
 creditor please, he may sue them all jointly. In con- 
 sequence of the joint liability, a release of one of the 
 debtors will discharge thorn all ; and, as they are all 
 discharged, the creditor will thenceforth be unable even 
 to sue any of them severally {if ) . As, however, the 
 several liability is distinct from the joint, it is compe- 
 tent to the creditor, in releasing one of the debtors, 
 expressly to reserve his remedy against the others ; and 
 in this case, each of the remaining debtors will con- 
 Covenant not tinue severally liable (e) . So he may covenant with 
 one of the debtors never to sue him ; and in such a case 
 he will retain his remedy against the others severally (/). 
 On account of the several liability, the estate of a person 
 who has become jointly and severally bound is not dis- 
 charged 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 sur- 
 viving co-debtors. It has been recently enacted, that 
 no co-contractor or co-debtor, whether liable jointly 
 only or jointly and severally, shall lose the benefit of 
 the Statutes of Limitation by reason only of payment 
 of any principal, interest or other money by any other 
 co-contractor or co-debtor (g). 
 
 Payment by 
 co-debtor. 
 
 Liability of 
 partners. 
 
 An exception to the general rules as to joint lia- 
 bility {/i) occurs in the case of the liabiHty of partners. 
 
 (d) 2 Rol. Abr. 412 (G), pi. 5 ; 
 Clayton v. Eynaston, 2 Salk. .574 ; 
 Ificholson V. Revill, 4 Add. & Ell. 
 683; S. C. Nev. & Man. 192; 
 Evans v. Bretnridge, 2 Kay & 
 John. 174; af&rmed, 8 De Gcx, 
 M. & G. 100. 
 
 (e) Ex parte Gifford, 6 Ves. 
 807 ; Thompson v. Lack, 3 C. B. 
 540 ; Kearslcy v. Cole, IG Mec. & 
 
 Wels. 136; Price y. Barker, Q. B., 
 1 Jur., N. S. 775 ; 4 E. & B. 760 ; 
 TFillis V. De Castro, 4 C. B., N. S. 
 216. 
 
 (/) Zacy V. Kynaston, 2 Salk. 
 575 ; 2 Wms. Saund. 48, n. (1). 
 
 if/) Stat. 19 & 20 Vict. c. 97, 
 8. 14, not retrospective ; Jackson 
 V. Woolley, 8 E. & B. 784. 
 
 {h) Ante, pp. 487, 488.
 
 OF JOINT OWNERSHIP ANi:> JOINT LIAHIIATY. 491 
 
 During the partners' lives, their liability for debts in- 
 curred by the partnership is joint only (/) ; unless, of 
 coiu'se, 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 (k). 
 But a dormant partner, wliose name may or may not Dormant 
 be known, may either be joined or not at the pleasure P^"^^^- 
 of the creditor (/), unless the contract be under seal, in 
 which case, as the deed is itself the contract, and not 
 merely the evidence of it {ni), those only can be sued on 
 it who have sealed and delivered it. Upon the death 
 of one of several partners, the surviving partners become 
 liable at law for all partnership debts previously in- 
 cm-red, as in any other case of joint liability {)i). But, 
 as the whole beneficial interest in the assets of the part- 
 nership does not accrue to the survivors, but the exe- 
 cutors or administrators of the deceased partner are 
 entitled in equity to his share (o) , so also in equity Liability in 
 the estate of the deceased partner is not discharged ^'^^^}^ ide- 
 from liabilities incurred by the partnership before his ceased part- 
 death (7;). For in equity the liability of partners for 
 partnersliip 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 (y). On the death 
 of a partner, therefore, his estate will be liable in equity 
 to all the partnership debts incurred previous to his 
 
 (t) Kendall v. JlamiKoii, 3 C. P. (;;) Richards v. Ih-athcr, 1 B. & 
 
 D. 403 ; 4 App. Cas. 504. A. 29 ; Mcllisli, L. J., Bcrcsford 
 
 {k) See Rice v. Shute, 5 Burr. v. lirownbuj, 1 Ch. D. 30, 36 ; 
 
 2G11; 1 Wms. Saund. 291 b, see a«i!e, p. 488. 
 
 n. (4) ; Kendall v. IlamiUon, 4 [o) Ante, p. 483. 
 
 App. Cas. 504, 515, 51G, 542 — [p) Kendall v. Hamilton, 3 C. 
 
 544. P. D. 403, 408 ; 4 App. Cas. 504, 
 
 (/) Be Mautort v. Saunders, 1 517, 538, 539. 
 
 Barn. & Adol. 398 ; Beekham v. (</) See James, L. J., Bcresford 
 
 Drake, 9 Mee. & Wels. 79; 11 v. Broicning, 1 Ch. D. 30, 34; 
 
 Mce. & Wels. 315 ; Kindall v. Kendall v. Hamilton, 3 C. P. D. 
 
 Hamilton, ubi sup. 403, 406—410; 4 App. Cas. 504, 
 
 {m) Ante, pp. 118, 135. 517, 520, 521, 536, 537—539, 545.
 
 492 OF PERS03SAL- ESTATE GENERALLY. 
 
 decease {>•) ; and tho creditors may, if tlioy 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 (.s). 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 application to the payment of any 
 of the debts of the partnership (/). As we have seen {ii), 
 under the Bankruptcy Act, 1883, the estates of de- 
 ceased debtors, which are insufficient to pay all their 
 debts in full, may be administered in bankruptcy, and 
 will then be distributable according to the law of bank- 
 ruptcy. 
 
 Bankruptcy In the case of the bankruptcy of a partnership, the 
 
 sHp. rule which has always been followed in the payment of 
 
 Joint and 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 (.r). 
 
 (?■) Bevai/nes v. Kohle, 1 Meriv. S. 610. 
 529, 563 ; 2 Russ. & My. 495. {it) Ante, pp. 153, 282—285. 
 
 (s) Wilkinson v. Houlerson, 1 [x) Ex parte Elton, 3 Ves. 238, 
 
 M. & Keen, 582; BraitJncaite v. 241; Ex parte Kensington, \iYes. 
 
 Britain, 1 Keen, 206; TJiorpey. 447; Ex parte Feake, 2 Rose, 54; 
 
 JaeJcson, 2 You. & Coll. 553 ; Way Ex parte Harris, 1 Mad. 583 ; Ex 
 
 V. Basset, 5 Hare, 55. parte Janson, 3 Mad. 229 ; Re 
 
 {t) See Gray Y. Chiswell, d Yea. Pliimmer, 1 Phil. 56; Ex piO'i^iB 
 
 118 ; Brown v. Weatherhy, 12 Sim. Kennedy, 2 De G., M. & G. 228 ; 
 
 6, 10 ; Bidgicay Y. Clare, 19 Beav. Ex parte Topping, L. C, 11 Jur., 
 
 Ill ; Whittingstall v. Grover, M. N. S. 210. As to fraud, see 
 
 E., 10 W. E. 53 ; Lodge v. Frit- Bead v. Bailey, 3 App. Gas. 94. 
 chard, 4 Giff. 294 ; 1 De G., J. 6c
 
 OF JOINT OWNEKSIIir A>"1) JOINT LIAIHLITY. 493 
 
 This rule is now embodied in a provision of the Bank- 
 ruptcy Act, 1883 {[/), wliich has been already stated (~). 
 Any proceedings under tbis Act may be taken by or 
 against partners in the name of the firm {a). And a 
 receiving order {h) may be made against a firm, and 
 will operate as if it were a receiving order made against 
 each of the partners (r). But it is provided that no 
 order of adjudication {d) shall be made against a firm 
 in the firm name ; but it shall be made against the 
 partners individually {r) . Any creditor, whose' debt is 
 sufficient to entitle him to present a bankruptcy peti- 
 tion (,/') against all the partners of a firm, may present 
 a petition against any one or more partners of a firm 
 without including the others (r/). 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 {h). But it is now 
 provided, as we have seen (/), that, 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 bankrupt until all 
 the separate creditors have received the full amount of 
 their respective debts {];) . 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, 
 
 (y) Stat. 46 & 47 Vict. c. 52, {ff) Sect. 110. 
 
 8. 40, sub-s. 3. (/() Stat. 46 & 47 Vict. c. 52, 
 
 (z) Ante, p. 251. First Schedule, Rule 13. 
 
 («) Sect. 115. See Bankruptcy (i) Ante, p. 247. 
 
 Rules, 1883, Nos. 192—197. (A) Stat. 46 & 47 Vict. c. 52, 
 
 {b) Ante, pp. 210, 216. s. 59, sub-s. 1. See ante, p. 247, 
 
 (c) Rule 195. n. {t) ; and see lie Von Hafcn, 19 
 
 \d) Ante, p. 212. Sol. J. 241, decided under the 
 
 \e) Rule 197. Bankruptcy Act, 1869. 
 
 (/) Ante, pp. 209, 213.
 
 494 OF PERSONAL ESTATE GENERALLY. 
 
 he might, at his option, prove his debt against the 
 separate estate of any such partner instead of against 
 the firm jointly (/) ; but he could not prove against 
 both together {tii). This rule was altered by a provision 
 of the Bankruptcy Act, 1869 (>;), which is now embodied 
 in the Bankruptcy Act, 1883, and has been already 
 stated (o). And a joint creditor of a firm, who is also 
 a several creditor, may now prove and receive dividends 
 from both the joint estate and the separate estate. 
 The Bankruptcy Act, 1883, provides that where joint 
 and separate properties are being administered, divi- 
 dends of the joint and separate properties shall, subject 
 to any order to the contrary that may be made by the 
 Court on the application of any person interested, be 
 declared together ; and the expenses of and incident to 
 such dividends shall be fairly apportioned by the trustee 
 between the joint and separate properties, regard being 
 had to the work done for and the benefit received by 
 each property (q). 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 
 
 (1) Kv parte Hay, 15 Ves. 4. s. 152. 
 
 {m) Ex parte Bcvan, 10 Ves. (o) Stat. 46 & 47 Vict. c. 52, 
 
 107; Ex parte Husbands, 2 Glyn Second Schedule, rule 18; ante, 
 
 & Jam. 4. p. 257. 
 
 (w) Stat. 32 & 33 Vict. c. 71, [q) Stat. 46 & 47 Vict. c. 52, 
 
 s. 37 ; Ex parte Honey, In re s. 59, sub-s. 2 ; in the same 
 
 Jeffery, L. E., 7 Ch. 178; Ex words as stat. 32 & 33 Vict. 
 
 parte Stone, In re Welch, L. E.., 8 c. 71, s. 104 ; Ex parte Bickin, 
 
 Ch. 914. The rule had been In re Foster, L. R., 20 Eq. 767. 
 
 partially abolished by the Act of See the previous stat. 24 & 25 
 
 1861, stat. 24 & 25 Vict. c. 134, Vict. c. 134, s. 177.
 
 OF JOINT OWNERSHIP ANJ) JOINT LIABILITY. 495 
 
 have been fully paid (>■). The addition or withdrawal 
 of a partner to or from a firm in difficulties may thus 
 occasion serious detriment to its creditors. 
 
 It has been decided that the share of a dormant Dormant 
 partner in the assets of the partnership is not goods in P^^^^^^^- 
 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 the bankruptcy of the acting 
 partner, as part of the bankrupt's separate estate (.s). 
 But, if two or more persons become liable 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 (0. 
 
 As we have seen {u), when two or more persons enter Every- partner 
 into partnership, each is liable, jointly with the other or debts ofUie 
 others, for all the debts of the firm. This liability is ^rm. 
 incident to the relation of partnership, and is necessarily 
 incurred whenever it is estabhshed, as a fact, that any 
 particular persons are partners in business (.r-). But a 
 man may also incur liability for the debts of a partner- 
 ship by holding himself out as a partner in the firm, Ostensible 
 although he be not entitled to receive any share of the ^^^ ^'^^' 
 profits {//) . Thus if a person allow his name to be used 
 
 (r) E.V parte Freeman, Buck, See ante, p. 492. 
 
 471 ; Fx parte Fry, 1 Glyn & (m) Ante, pp. 490, 491 ; Toolcy 
 
 Jam. 96 ; Bx parte Janson, 3 v. Driver, 5 Ch. D. 458. 
 
 Mad. 229; Ex parte Sprague, 4 {x) S. C, 5 Ch. D. 458, 472; 
 
 Do G-ex, Mac. & Gord, 806. see Holme v. Ilammond, L. E., 7 
 
 (s) Bcyyiolds v. BouJey, L. E., Ex. 218, 226, 227, 233. 
 
 2 Q. B. 474; a)itc, pp. 85—87, (y) Ejtc, C. J., Waughx. Car- 
 
 233. rer, 2 H. Bl. 235, 242 ; EUen- 
 
 {t ) lie Jioicland and Cranlshaiv, borough, C. J., Mclver v. Mumble, 
 
 L. R., 1 Ch. 421 ; Ex parte Hay- 16 East, 169, 174. 
 man, Ec Puhford, 8 Ch. D. 11.
 
 496 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 Retiring 
 partner. 
 
 Deceased 
 partner. 
 
 Executor 
 carrying on 
 trade. 
 
 as one of a firm (;:), or to "be painted over tlie door of 
 a shop {a) , he will be liable to the debts of the fii'm ; 
 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 known to be a 
 partner in the firm (6), his liability 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 (c). But the circumstance of the name of a de- 
 ceased partner remaining in the firm will not render his 
 estate liable to the debts of the sm-vivors {(/). And' if a 
 trader dii'ect 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 (e) ; 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 (/). 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. 
 
 (z) Parkin v. Carrnthers, 3 Esp. 
 248 ; Young t. Axtell, cited 2 H. 
 Black. 242 ; Ex parte Hayman, 
 RePulsford, 8 Ch. D. 11. 
 
 {a) Williams v. Keats, 2 Stark. 
 290. See M'lver v. Snmhle, 16 
 East, 169, 171, 175. 
 
 {b) Evans v. Drummond, 4 Esp. 
 89 ; Brooke v. Enderhy, 2 Brod. & 
 Bing. 70; 4 Moore, 501 ; Carter 
 V. Whalley, 1 Barn. & Adol. 11. 
 
 (c) Godfrey v. TurnbuU, 1 Esp. 
 371 ; M'lver v. Rumble, 16 East, 
 169. See Scarf y. Jardine, 7 App. 
 Gas. 345. 
 
 [d) Bevaynes v. Koble, IIouUon''s 
 Case, 1 Mer. 529, 616, 623 ; Vul- 
 
 liamy v. Xoble, 3 Mer. 614 ; JTeb- 
 ster Y. Webster, 3 Swanst. 490, n. 
 
 (e) 10 Ves. 119. And at law 
 he will be liable, though his name 
 do not appear ; Wightman v. 
 Townroe, 1 Mau. & Selw. 412. 
 
 (/) Ex parte Garland, 10 Ves. 
 110; Ex parte Richardson, Buck, 
 202 ; Cutbush \. Cutbush, 1 Beav. 
 184; Be Butterfield, 11 Jurist, 
 955 ; Eirkman v. Booth, 11 Beav. 
 273 ; M'Xeillie v. Acton, 4 De 
 Gex, M. & G. 744 ; Be Johnson, 
 Shearman v. Robinson, 15 Ch. T>. 
 548 ; Eraser v. Murdoch, 6 App. 
 Gas. 855, 866, 874, 875.
 
 OF JOINT OAVNERSrilP VXl) JOINT LIABILITY. 
 
 497 
 
 The law will not permit a man to secure for himself Liabilities of 
 all the advantages of partnership without incurring- its iucurred by 
 liabilities (v). If therefore several persons enter into an agreement 
 
 •n t\ • 1 n 1 securing all 
 
 an agreement, that some speeined business shall be its advan- 
 carried on by some or one of them on behalf of all of ^^o^^- 
 them under arrangements which secure to all of them 
 all the advantages of partnership, they ^\ill all incur 
 the liabilities of partners, although the business be car- 
 ried on in the name or names of the acting partner or 
 partners alone (h). In such cases the question to be 
 determined is, whether the effect of the whole agree- 
 ment is to constitute a partnership between the parties 
 thereto (/). 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 (/.•). 
 
 Before the year 1860, it was generally laid doAMi participation 
 that liability for the debts of a partnership was incurred ^^ profits. 
 by participation in the profits, as such {I) . During the 
 prevalence of this supposed rule, it was the occasion of 
 divers subtle distinctions. Thus, it was considered (m) 
 that, if a man placed or left money in a business, which 
 was to be carried on by others, and stipulated to receive 
 
 iff) Pooky V. Driver, 5 Ch. D. IToward, G Ch. D. 303. 
 
 458, 483, 493; E.r parte Belhasse, {k) See Ex parte Delhasse, Be 
 
 Megcvand, 7 Ch. D. 511, 527, 528. Megevand, 7 Ch. D. 511, 512, 527, 
 
 [h) See the same cases. 528, 532 ; and see ante, p. 495. 
 
 (i) Pooleij V. Driver, 5 Ch. D. {I) See Blackbnm, J., 8 II. of 
 
 458 ; Ex parte Delhasse, Re Mege- L. Cas. 283 ; L. R., 1 C. P. 109; 
 
 vand, 7 Ch. D. 511. See Cox v. J. C. of P. C, L. R., 4 P. C. 
 
 Eichnan, 8 H. of L. Cas. 268; 433, 434. 
 
 Kilshaw V. Jukes, 3 B. & S. 847 ; (w) Eldon, C, He Colbcclc, Buck, 
 
 Bullen V. Sharp, L. R., 1 C. P. 48, 52. See also De Grey, C. J., 
 
 86 ; Holme v. Jlammond, L. R., 7 Blackstonc, J., Grace v. Smith, 2 
 
 Ex. 218 ; Molhco, March cj Co. v. W. Bl. 998, 1000, 1001 ; Barry \. 
 
 The Court of JFard", L. R., 4 P. Xcsham, 3 C. B. 641; and see the 
 
 C. 419 ; Boss v. Darhjns, L. R., 20 first edition of this work, p. 229. 
 Eq. 331 ; Ex parte Tennant, Re 
 
 W.P.P. K K
 
 408 OF TEKSONAL ESTATE GENERALLY. 
 
 a compensation for it, under whatever name, subject to 
 abatement or enlargement as the profits might fluctuate, 
 he was liable as a partner. It was however decided 
 that, if a man lent money to a trader, and stipulated to 
 receive a definite annual sum by way of interest, the 
 lender did not thereby incur the liabilities of a partner, 
 so long as the loan and the annual sum were not in any 
 way charged xipon the profits of the business, but re- 
 mained due upon the debtor's personal security only (n). 
 And it does not appear that the loan of money to the 
 members of a firm, upon a bond fide contract to receive 
 a rate of interest varying with the profits of their busi- 
 ness, would have made the lender answerable for the 
 debts of the firm, if the lender had no right to resort to 
 the profits of the business for payment of the amount 
 due to him, but had only a right to sue the borrowers 
 for a debt (o). Again, if a man agreed to give others 
 the benefit of his services in some business, which they 
 carried on, and to receive a remuneration varying with 
 the profits, a similar distinction was taken between an 
 agreement to receive a share of the net profits and a 
 contract to be paid a sum equal to a given proportion 
 of the profits {2>)- And it was laid down by Lord 
 Eldon {q) that, if a man chooses to stipulate for an 
 interest in the profits of a business, instead of a certain 
 sum proportioned to those profits, he is as to third per- 
 sons a partner. But a mere contract between a man 
 and his employers, that they would pay him a sum, 
 equal to a given proportion of the profits of their 
 business, did not subject him to the responsibilities of 
 
 («) Green v. Smith, 2 W. Bl. 419, 434; Jessel, M. E,., rooley 
 
 998. See Gilpin v. EncUrhj, 2 v. Driver, 5 Ch. D. 484, 485. 
 
 B. & 0. 954; FeredayY. Hordern, {p) Ex parte Hamper, 17 Ves. 
 
 Jac, 144. 403, 404 ; Ex parte Watson, 19 
 
 (o) See Tindal, C. J., Fvtt v. Ves. 459, 461. 
 
 Eyton, 3 C. B. 32, 40; J. C. of {q) Ex parte Eoivlandson,\'Rose, 
 
 P. C, ilollwo, March ^- Co. v. The 89, 91. 
 Court of Wards, L. R., 4 P. C.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY, 499 
 
 pavtnersliip (r). A distinction w<as moreover drawn 
 between an agreement to have a share in the net profits 
 of a business and a stipulation for a share of the gross 
 returns ; and it was considered that, in the latter case, 
 the liabilities of partnership were not incurred (-s). 
 
 In the year 18G0, it was declared by the lords, who Cox v. Illch- 
 delivered judgment in the case of Cox v. Hick man, ^"""" 
 before the House of Lords (/), that the supposed rule, 
 which had been previously laid down, was an erroneous 
 statement of the law. What was decided in that case 
 was that, if a trading concern were carried on for the 
 benefit of creditors, the creditors were not, from the 
 mere circumstance of their debts being paid out of the 
 l^rofits, liable as partners for the debts incurred. But 
 it was there laid down that, if several persons enter 
 into an agreement with regard to some business, which 
 is to be carried on by some of them, the true test for 
 determining the question of their liability for debts 
 incurred in the ordinary course of the business is to 
 inquire whether, considering the effect of the whole 
 agreement, all parties thereto have given to the active 
 managers of the concern uuihoritij to carry on the business 
 on hchaJf of all of titan. If this bo the effect of the 
 agreement, all parties thereto will incur the liabilities 
 of partners in the business, and will tlierefore bo liable 
 for debts contracted in the ordinary course of the busi- 
 ness. For every partner is the agent of the firm for 
 the purpose of carrying on the business ; and the firm — 
 that is, the whole body of partners — are liable for debts 
 contracted by their agent by their authority {a). Thus 
 
 (/•) SccStockcr V. BrocJdehank, 3 N. S. 105 ; S. C. nom. Whcatcroft 
 
 Mac. & G. 250, 255, 263. v. Hiclman, 9 C. B., N. S. 47. 
 
 (s) Dry V. Bostvell, 1 Camp. («) See the judg-mcutsof Loi'ds 
 
 329 ; Pott V. Eijton, 3 C. B. 32 ; Cranworth and Weuslcydalc, Cox 
 
 Seyhoe v. Burge, 9 C. B. 431, 440, v. Hlclanan, tibi sup.; Jessel, M.R., 
 
 458. Foolcy v. Driver, 5 Ch. D. 458, 
 
 [t) 8 H. of L. Cas. 268 ; 7 Jur. 474—478. 
 
 kk2
 
 500 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Act to amend 
 the law of 
 partnership. 
 
 it appears, as has been already stated (,r), that 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. In determining this ques- 
 tion, participation in the net profits of a business is still 
 regarded as strong (but not conclusive) evidence of part- 
 nership : though it is no longer put forward as the test 
 of incun-ing the liabilities of partnership (//). 
 
 In the year 1865 an Act was passed to amend the 
 law of partnership (;:). It was remarked by a late 
 eminent judge {a) that this Act seems to have been 
 framed on an impression that the law of partnership 
 was in a different state from what it actually was. 
 The Act provides that the advance of money by way of 
 loan to a person engaged or about to engage in any 
 trade or undertaking, upon a contract in writing with 
 such person that the lender shall receive a rate of 
 interest varying with the profits, or shall receive a share 
 of the profits arising from carrying on such trade or 
 undertaking, shall not of itself constitute the lender a 
 partner with the person or persons carrying on such 
 trade or undertaking, or render him responsible as 
 such [h) . And no contract for the remuneration of a 
 servant or agent of any person engaged in any trade 
 or undertaking, by a share of the profits of such trade 
 or undertaking, shall of itself render such servant or 
 agent responsible as a partner therein, nor give him the 
 rights of a partner (c). And no person, being the 
 
 {x) Ante, p. 497 ; see the cases 
 cited in note (i) thereto. 
 
 iy) See Bullen v. Shmy, L. R., 1 
 C. P. 86, 112; Pooleij V. Driver, 
 5 Ch. D. 458, 476—481 ; Ex parte 
 Tennant, Re Koivard, 6 Ch, D. 
 303, 315. 
 
 {z) Stat. 28 & 29 Vict. c. 86, 
 5th July, 18G5. 
 
 {a) Jesse], M. E,., Pooley v. 
 
 Driver, 5 Ch. D. 483, 484. 
 
 {h) Sect. 1. If a man enter into 
 the relation of partnership, he 
 •will not be permitted to evade 
 its liaLilities by a pretended re- 
 liance ujion this Act. See Pooley 
 V. Driver, 5 Ch. D. 458; Ex 
 parte Delhasse, Re Megevand, 7 
 Ch. D. 511. 
 
 (c) Sect. 2.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 501 
 
 widow or child of tlie deceased partner of a trader, and 
 receiving by way of annuity a portion of the profits 
 made by siicli trader in his business, shall by reason 
 only of sucli receipt be deemed to be a partner of or to 
 be subject to any liabilities incurred by such trader {d). 
 And no person receiving by way of annuity or other- 
 wise a portion of the i)rofits of any business, in conside- 
 ration of the sale by him of the goodwill of such 
 business, shall, by reason only of such receipt, be 
 deemed to be a partner of or be subject to the liabilities 
 of the person carrying on such business (c) . But in the 
 event of any such trader as aforesaid being adjudged a 
 bankrupt, or taking the benefit of any Act for the 
 relief of insolvent debtors, or entering into an arrange- 
 ment to pay his creditors less than twenty shillings in 
 the pound, or dying in insolvent circumstances, the 
 lender of any such loan as aforesaid shall not be 
 entitled to recover any portion of his principal, or of 
 the profits or interest payable in respect of such loan ; 
 nor shall any such vendor of a goodwill as aforesaid be 
 entitled to recover any such profits as aforesaid until 
 the claims of the other creditors of the said trader for 
 valuable consideration in money or money's worth have 
 been satisfied (./'). 
 
 When the relation of partnership has been established Each partner 
 between two or more persons, each incm-s liability from ^f^t|jeo°i^(?rii 
 the acts and dealings of the other in the ordinary course the ordinary 
 of business. For, as we have seen {(j), every partner is bu^iess. 
 regarded as the agent of the firm for the purpose of 
 carrying on the business of the firm ; and all the 
 partners are liable, as principals, for all acts done by 
 
 {d) Sect. 3. Taijlor, In re Grason, 12 Ch. D. 
 
 \e) Sect. 4. 366. See stat. 46 & 47 Vict. 
 
 (/) Sect. 5 ; Ex parte Mills, In c. 52, a. 40, sub-s. 6. 
 
 re Tew, L. E., S Ch. 569; Ex parte {g) Ante, p. 499.
 
 502 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 each of tliem as agent for and by the authority of the 
 firm (//). Accordingly any one partner may buy, sell (^) 
 or pledge goods (/.•) ; draw (/), accept {)») or indorse {») 
 bills of exchange and promissory notes; give guaran- 
 tees (o), receive moneys (p) and release or compound for 
 debts {q) in the name (r) and on the account of the firm, 
 in the ordinary course of business. Each partner is also 
 answerable for the fraud of his co-partner in any matter 
 Notice to one relating to the business of the partnership (s) . And in 
 notice to all. like manner notice of any matter relating to the part- 
 nership, if given to one partner, is constructively notice 
 to them all (/) . And any agreement between the part- 
 ners, by which any one of them may be restrained from 
 doing any act to pledge the credit of the firm, though 
 binding as between themselves, will not be binding on 
 any creditor (?r) who may not have notice of it (.<■) . If, 
 
 Transactions ]iowever, the transaction be not in the ordinary course 
 not in the ' "^ 
 
 (/;) Lord "Wensleydale, Co.r v. 
 Sichnan, 8 H. of L. Cas. 268, 312 ; 
 Jessel, M. E,., Fooleij v. Driver, 
 5 Ch. D. 458, 476, 477. 
 
 (i) Hyat v. Sare, Comb. 383; 
 Lamberfs case, Godbolt, 244. 
 
 {k) Eeid v. HoUinshead, 4 B. & 
 Cress. 867. 
 
 [l] Smith \. Jarvis, 2 Ld. Eay- 
 mond, 1484 ; Be Clarke, Ex parte 
 BucMeu, 14 Mee. & Wels. 469 ; 1 
 Phil. 562. 
 
 (>«) Pinkney v. Hall, 1 Salk. 
 126 ; 1 Ld. Raym. 175 ; Lloydv. 
 Ashby, 2 B. & Adol. 23. 
 
 (m) Swan V. Steele, 7 East, 210 ; 
 Vere v. Ashby, 10 Bam. & Cress. 
 288. 
 
 (o) Hx parte Gardom, 15 Ves. 
 286 ; see Halesham v. Toung, 6 Q. 
 B. 833. 
 
 [p) DuffY. East India Company, 
 15 Ves. 198, 213. 
 {(j) Per Lord Kenyon, 4 T. Rep. 
 
 519 ; perBesi, C. J., 10 Moore, 393. 
 
 (>•) Kirk V. Blurton, 9 Mee. k 
 Wels. 284. 
 
 (s) TTillet V. Chambers, Cowp. 
 814 ; Stone v. Marsh, 6 Bam. & 
 Cress. 551; Lovelly. Hicks, 2 You. 
 
 6 Coll. 481 ; Blair v. Bromley, 5 
 Hare, 542 ; 2 PhiH. 354 ; Earl of 
 Dioidonald v. Master man, L. R., 
 
 7 Eq. 504 ; Cleather v. Ticisden, 
 24 Ch. D. 731. 
 
 {t) Per Lord Ellenborough, 1 
 Man. & Selw. 259. 
 
 («) Waugh v. Carver, 2 H. 
 Black. 235 ; South Carolina Bank 
 V. Case, 8 Bam. & Cress. 427 ; 
 Hawken v. Bourne, 8 Mee. & 
 Wels. 703, 710. 
 
 (z) Minnit v. Whinery, 5 Bro. 
 Pari. Cas. 489 ; Ex parte Barling- 
 ton District Joint Stock Banking 
 Company, In re Riches, L. C, 11 
 Jur., N. S. 122. See also Hogg 
 V. Skeen, 18 C. B., N. S. 426.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 503 
 
 of the business of the partnership, the other partners ordinary 
 will not be liable as such in respect of it. Thus one ?,?!!!"^La 
 partner cannot bind the firm by a submission to arbi- 
 tration (//), or by confessing a judgment (~) ; and one 
 partner has ordinarily no authority to execute a deed 
 in the names of the others so as to bind the partner- 
 ship (a). So a farmer carrying on his business in part- 
 nership with another would not be liable on a bill of 
 exchange drawn by his partner in the name of the 
 partnership {h) ; neither would a solicitor be liable on 
 a bill drawn by his partner in the name of his firm, 
 though given to secure a partnership debt (c) ; for bill 
 transactions form no part of the ordinary business of 
 cither farmers or solicitors. Again, there is no right or Directors of 
 power implied by law in any of the directors of a joint- compa^nies. 
 stock company to bind the company by drawing or 
 accepting bills or notes {d) ; and in like manner notice 
 of any matter relating to the business of a joint-stock 
 company given to any member, even a director, is not 
 constructive notice to the company itself (e) . For joint- 
 stock companies are essentially different from ordinary 
 partnerships. It is not necessary that the directors 
 should have any other power to bind the company by 
 bills or notes than such as may be conferred on them 
 by the charter or articles of association (_/'). And the 
 business of such companies is always carried on at an 
 office for the pm'pose, and. is not, like that of ordinary 
 partnerships, confided to any one individual member. 
 
 (y) Stead v. Salt, 3 Bmg. 101 ; B. 316. 
 S. C. 10 J. B. Moore, 389. {d) DicIdnsouY. Valpij, 10 Barn. 
 
 (:) JIambidge v. Be la Croitce, 3 & Cress. 128 ; Bramah v. Roberts, 
 
 C. B. 742. 3 N. C. 963. See IFcst London 
 
 [a) Harrison v. Jaclcson, 7 T. Commercial Bank v. Kitson, 12 Q. 
 
 Rep. 207 ; see Burn v. Burn, 3 B. D. 157; 13 Q. B. D. 360. 
 Ves. 573, 578. [e) Bowles v. Bage, 3 C. B. 16; 
 
 (//) Ber Littledule, J., 10 Barn. Martin v. Sedgwick, 9 Beav. 333. 
 & Cress. 138. (/) Balfour v. Ernest, 6 0. B., 
 
 (r) Ilcdlcg v. Bainbridgc, 3 Q. N. S. 001.
 
 504 
 
 or PERSONAL ESTATE GENERALLY. 
 
 New enact- 
 ment. 
 
 The Companies Act, 1862, now provides, that a pro- 
 missory note or bill of exchange shall be deemed to 
 have been made, accepted or indorsed on behalf of any 
 company under that Act, if made, accepted or indorsed 
 in the name of the company by any person acting 
 under the authority of the company, or if made, ac- 
 cepted or indorsed by or on behalf or on account of the 
 company by any person acting under the authority of 
 the company {g) . 
 
 Provisional 
 committeo- 
 man. 
 
 Shareholders The liability of a shareholder in a joint-stock com- 
 companies?^ X^any to the debts of the company has been already 
 noticed. It varies, as we have seen (//), according- as 
 the company is incorporated with unlimited liability 
 or with liability limited by shares or by guarantee. 
 The mere circumstance, however, of a person allowing 
 his name to be published as a provisional committee- 
 man of a projected joint-stock company does not confer 
 on the solicitor or secretary of the intended company, 
 or any one else, impKed authority to pledge the credit 
 of such person for goods supplied to the company, or 
 work done on its account (/). For to agree to become 
 a member of a committee is merely to agree to become 
 one of a body, to whom others have committed a par- 
 ticular duty, and does not constitute an agreement to 
 share with the other members of that body in profit or 
 loss, which is the characteristic of a partnership (k). 
 
 (<7) Stat. 25 & 26 Vict. c. 89, 
 s. 47 ; and see as to other con- 
 tracts, stat. 30 & 31 Vict. c. 131, 
 s. 37, ante, pp. 359, 360. 
 
 {h) ^HiJr, pp. 351,352, 361,362. 
 
 (j) Meynell v. lewis, 15 M. & 
 W. 517 ; Barker v. Stead, 3 C. B. 
 946 ; Uailei/ v. Macaiday, 13 Q. B. 
 815. 
 
 (/.) 15 Mec. & Wels. 529.
 
 ( 505 ) 
 
 CHAPTER III. 
 
 OF A MILL. 
 
 All kinds of personal property may Lo beqiieatlied by Growth of 
 will. 'This right, in its present extent, has been of very mcntary 
 gradual and almost imperceptible growth ; for anciently alienation. 
 by the general common law, a man who left a wife and 
 children could not deprive them by his will of more than 
 one equal third part of his personal property. If, how- 
 ever, he left a wife and no children, or children and no 
 wife, he was then enabled to dispose of half, leaving the 
 other half for tlie wife or for the children (a). This 
 ancient rule, however, gradually became subject to many 
 excej)tions, by the customs of particular places, until the 
 rule itself took the place of an exception and became 
 confined to such places as had a custom in its favour. 
 These j^laces, in later times, were the province of York, 
 the principality of Wales, and the city of London ; as 
 to all which places, a general power of testamentary 
 disposition ^^•as conferred by Acts of parliament of 
 William and Mary, Anne, and George I. {h) . And now, 
 by the Act for the Amendment of the Laws with respect 
 to Wills (c), every person of fidl age is expressly em- 
 powered to bequeath by his will, to be executed as 
 required by the Act, all personal estate to which he shall 
 be entitled, either at law or in ecjuity, at the time of his 
 decease. 
 
 {a) 2 Black. Com. 492 ; Wil- York ; stat. 7 & 8 Will. III. c. 38, 
 
 liams on Executors, pt. 1, bk. 1, for Wales; and stat. 11 Geo. I. 
 
 ch. 1. Sec also 1 C. P. Cooper's c. 18, for London. See 2 Bl. 
 
 Reports, p. 539. Com. 493. 
 
 {b) Stat. 4 & ; Will. & Mary, (c) Stat. 7 WiU. IV. & 1 Vict. 
 
 c. 2, exi:)lained by stat. 2 & 3 c. 26, s. 3. 
 Anne, c. 5, for the province of
 
 o06 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Age at which 
 a will of per- 
 sonal estate 
 might 1)0 
 made. 
 
 No Avill of a 
 minor now 
 valid. 
 
 The ecclesiastical courts, as we shall hereafter see, 
 very early acquired the right of determining as to the 
 validity of wills of personal estate ; and, in the exercise 
 of this right, they generally followed the rules of the 
 ci^'il law. By this law males at the ago of fourteen, 
 and females at the age of twelve, wore allowed, if of 
 sufficient discretion, to make a testament (d) ; and the 
 same rule, accordingly, prevailed in this country with 
 respect to wills of personal property (e) , although, by 
 some authorities, seventeen and even eighteen was said 
 to be the proper age (/). The Act for the Amendment 
 of the Laws with respect to Wills has, however, now 
 made the law uniform with respect to all wills, whether 
 of real or of personal estate, and has enacted that no 
 will made by any person under the age of twenty-one 
 years shall be valid (ff) . 
 
 Nuncupative 
 will. 
 
 Statute of 
 Frauds. 
 
 No witness 
 formerly re- 
 quired to a 
 
 Personal property was anciently of so Httle account 
 that a will of it might be made by word of mouth, if 
 proved by a sufficient number of witnesses, as well as by 
 writing ; and a will made by word of mouth was termed 
 a nuncupative testament {/i). By the Statute of Frauds, 
 however, a nuncupative testament, where the estate 
 bequeathed exceeded the value of thirty pounds, was 
 surrounded by so many requirements as to cause its 
 complete disuse {I). But no provision was made for 
 guarding the execution of a written will of personal 
 estate ; although by the same statute [Ic) a will of real 
 estate was required to be attested by three or four 
 witnesses. No attestation, therefore, was required to a 
 will of personal estate, nor was it even necessary that 
 
 {d) Inst. lib. 2, tit. 12, s. 1; 
 Dig. lib. 28, tit. 1, s. 5. 
 
 {e) 2 Bl. Com. 497. 
 
 (/) Co. Litt. 89 b, n. (G). 
 
 iff) Stat. 7 Will. IV. & 1 Vict, 
 c. 26, s. 7. 
 
 {k) Went worth's Executors, 11 
 ct seq.; Williams on Execiitors, 
 pt. 1, bk. 2, ch. 2, s. 6. 
 
 (J) Stat. 29 Car. II. c. 3, ss. 19 
 —21, explained by stat. 4 Anne, 
 c. 16, s. 14. 
 
 [k) Sect. 5.
 
 or A AVI 1,1, 
 
 507 
 
 such a will should be signed by the testator. Thus, in- -will of pcr- 
 
 , J- 2 •^■\ 'i.1 J X 'i.' • T_ sonal estate, 
 
 structions tor a will committed to writmg, given by 
 
 a person who died before the instrument could bo 
 
 formally executed, though such instructions were neither 
 
 reduced into writing- in the presence of the testator, nor 
 
 even read over to him, have been held to operate as 
 
 fully as a will itself (/). It was, however, provided by 
 
 the Statute of Frauds, that no will in writing of personal 
 
 estate should be repealed or altered by word of mouth 
 
 only, except the same were, in the life of the testator, 
 
 committed to writing ; and, after the writing thereof, 
 
 read unto the testator, and allowed bj^ him, and proved 
 
 to be so done by three witnesses at the least (;;/). 
 
 By 'OoQ recent Act for the Amendment of the Laws with Now cnact- 
 respect to Wills, every will of personal estate must now "^itne,sses'no\ 
 be in writing, and signed at the foot or end thereof by I'oquired. 
 the testator or by some other person in his presence and 
 by his direction ; and such signature shall be made or 
 acknowledged 'by the testator, in the presence of two 
 or more Avitnesses present at the same time ; and such 
 witnesses shall attest and shall su.bscribe the AA-ill in the 
 presence of the testator (;?). The Act, in fact, requires 
 the same mode of execution and attestation to every 
 will, whether the property be real or personal. But an Exception in 
 exception is made in favour of soldiers being in actual ciiJi°".iQ^ g"!,'. 
 military service, that is, on an expedition (o) , and of men. 
 mariners and seamen, being at sea, who may dispose of 
 their personal estate as they might have done before the 
 making of the Act (yj) ; a similar exception was contained 
 
 (?) Cany v. Askcu; 2 Bro. C. D. 119. And see Principles of 
 
 C. 58 ; S. C, 1 Cox, 241. the Law of Real Property, p. 206, 
 
 (m) Stat. 29 Car. II. c. 3, s. 22. 13th ed. ; 218, 14th ed. 
 
 {») Stat. 7 Will. IV. & 1 Vict. (o) Drionmoiid v. Paris/i, 3 Ciivt. 
 
 c. 26, s. 9, explained bystat. 15 & 522. 
 
 16 Vict. c. 24 ; see In the goods of {p) Stat. 7 Will. IV. & 1 Vict. 
 
 Gunstaii, Blake v. Blake, 7 P. D. c. 26, s. 11, 
 102 ; IVrir/ht v. Saioulcrson, 9 P.
 
 508 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Seamen iu th: 
 royal navy 
 and marines. 
 
 Merchant 
 seamen. 
 
 in tlio Statute of Frauds (*/). Tlie wills of soldiers on 
 an expedition may according-ly be made by an unattested 
 writing, or by a mere nuncupative testament or decla- 
 ration of their will by word of mouth, made before a 
 sufficient number of witnesses. But the wills of petty 
 officers and seamen in the royal navy, and of marines 
 and non-commissioned officers of marines, so far as 
 relates to any wages, pa}^, prize money or other monies 
 payable by the Admiralty, are required by Act of par- 
 liament (/■) to be executed in the presence of and to 
 be attested by a commissioned officer or certain other 
 officers or persons mentioned in the Act ; and the wills 
 of such persons are also guarded by other requisitions 
 in order to prevent their being imposed upon. And by 
 the Merchant Shipping Act, 1854, it is now provided 
 that the Board of Trade may, in its discretion, refuse 
 to pay or deliver the wages or effects of any deceased 
 merchant seaman to any person claiming to be entitled 
 thereto under any will made on- board ship, unless such 
 will is in writing and is signed or acknowledged by the 
 testator in the presence of the master or first or only 
 mate of the ship, and is attested by such master or 
 mate. And the Board may, in its discretion, refuse to 
 pay or deliver any such wages or effects to any person, 
 not being related to the testator by blood or marriage, 
 who claims to be entitled thereto under a will made 
 elsewhere than on board ship, unless such will is in 
 writing and is signed or acknowledged by the testator 
 iu the presence of two witnesses, one of whom is some 
 shipping master appointed under the Act, or some 
 minister or officiating minister or curate of the place in 
 which the same is made, or, in a place where there are 
 no such persons, some justice of the peace, or some 
 British consular officer, or some officer of customs, and 
 
 (r/) Stat. 29 Car. II. c. 3, s. 23. 
 
 (?•) Stat. 28 & 29 Vict. c. 72, 
 
 superseding stats. 11 Geo. IV. & 
 
 1 WiU. IV. c. 20, ss. 48—51; 
 7 Will. IV. & 1 Vict. c. 26, s. 12.
 
 OF A WILL. 509 
 
 is attested by such witnesses (.s). By the Act to Amend Revooatiou 
 the Laws with respect to Wills it is provided, that no will " "'' ^^ 'w 
 or codicil, or any part thereof, shall be revoked, other- 
 wise than by the marriag-e of the testator or testatrix 
 (which will of itself effect a revocation) {f), or by an- 
 other will or codicil executed in the manner thereby 
 required, or by some writing, declaring an intention to 
 revoke the same, and executed in the manner in ^vhich 
 a will is thereby required to be executed, or by the 
 burning, tearing, or otherwise destroying the same by 
 the testator, or by some person in his presence, and by 
 his direction, with the intention of revoking the same {it). 
 
 A will of personal estate was formerly required to be .Domicile. , 
 made according to the law of the domicile of the tes- 
 tator at the time of his decease (r) . A person's domicile 
 is the place which he makes his home. But with regard 
 to many persons the circumstances connected with their 
 change of residence are such as to render it an exceed- 
 ingly difficult question of fact, — what country is their 
 domicile at any given time {u-). In order to remedy the 
 inconveniences thus occasioned, it is provided by an Act 
 of the present reign (//), that with regard to persons 
 who may die after the 6tli of August, 180 1, the date of 
 the Act, every testamentary instrument made out of the 
 United Kingdom by a British subject, whatever may 
 be his domicile at the time of making it, or at his death, 
 shall, as regards personal estate, be held to be well exe- 
 
 («) Stat. 17 & 18 Vict. c. 104, (v) Stanley v. Bernes, 3 Hagg. 
 
 8. 200. 373. This is still the law with 
 
 {(,) Stat. 7 Will. IV. & 1 Vict. regard to the wills of aliens pro- 
 
 c. 26, s. 18. See Priuciplcs of the pounded for probate in England ; 
 
 Law of Real Property, 210, 13th Bloxam v. Favre, 8 P. D. 101. 
 
 ed. ; 222, 14th ed. {x) See Bouglas v. Lougha, Law 
 
 (m) Stat. 7 Will. IV. & 1 Vict. Rep., 12 Eq. 617, and the cases 
 
 c. 26, s. 20. See Cheese v. Love- there cited. 
 
 jotj, 2 Prob. D. 251. [y) Stat. 24 & 25 Vict. c. 114.
 
 510 OF PERSONAL ESTATE GENERAIJA'. 
 
 cuted for the purpose of being admitted to probate, if 
 the same be made according- to tlie forms required either 
 by the hiw of the place where the same was made, or by 
 the law of the place where such person was domiciled 
 when the same was made, or by the laws then in force 
 in that part of her Majesty's dominions where he had 
 his domicile of oiigin (::) . It is further provided (o) that 
 every testamentary instrument made within the United 
 Kingdom by any British subject, whatever may be his 
 domicile at the time of making the same, or at his 
 death, shall, as regards personal estate, be held to be 
 well executed, and shall be admitted to probate, if the 
 same be executed according to the forms required by 
 the laws of that part of the United Kingdom where the 
 same is made. And no testamentary instrument is to 
 be revoked or to become invalid, nor is the construc- 
 tion thereof to be altered, by reason of any subsequent 
 change of domicile of the person making the same (b). 
 Further Another Act of parliament, passed on the same day (c), 
 
 provides that whenever her Majesty shall, by conven- 
 tion with any foreign state, agree that provisions to the 
 effect of the enactments therein contained shall be 
 applicable to the subjects of her Majesty and of such 
 foreign state respectively, her Majesty may by order in 
 council direct that, after the publication of such order 
 in the " London Gazette," no British subject resident 
 at the time of his death in the foreign country named 
 in such order shall be deemed, under any circumstances, 
 to have acquired a domicile in such country, unless he 
 shall have been resident in such country for one year 
 immediately preceding his decease, and shall also have 
 made and deposited in a public office of such foreign 
 country (such office to be named in the order in council) 
 a declaration in writing of his intention to become 
 
 {z) Stat.24&25Vict.c.ll4,s. 1. (b) Sect. 3. 
 
 («) Sect. 2. (c) Stat. 24 & 2-5 Vict. c. 121.
 
 OF A WILL. 511 
 
 domiciled in such foreign country. And any British 
 subject dying- resident in sucli foreign country, but 
 without having so resided, and made such dechiration 
 as aforesaid, shall be deemed, for all purposes of testate 
 or intestate succession as to moveables, to retain the 
 domicile he possessed at the time of his going to reside 
 there (d) . Similar provisions may be made, after any 
 such convention, with regard to the subjects of such 
 foreign country dying in Groat Britain (c). But this 
 Act is not to apply to any foreigners wlio may have 
 obtained letters of natm-alization in any part of her 
 Majesty's dominions (/). 
 
 Connected with the subject of wills is that of dona- Donatio 
 
 .. ..* A 1-1 1 1 j'l AT mortis causa. 
 
 tions mortis causa, which may here be noticed. A dona- 
 tion mortis causa is a gift made in contemplation of 
 death, to be absolute only in case of the death of the 
 giver {[/). Being a gift, it can be made only of chattels, 
 the property in which passes by delivery {//) ; although a 
 bond debt has, contrary to this principle (i) , been allowed 
 to pass by way of donation mortis causa by delivery of 
 the bond (k). And a policy of life assiu'ance has also 
 recently been held a proper subject for such a gift (/), 
 also bills or notes though payable to order and unin- 
 dorsed (>n). An actual or constructive delivery of the 
 subject of gift to the donee is essential to a donation 
 
 {(l) Sect. 1. 2M ; and see J]o!dts v. miis, 4 I)e 
 
 {e) Sect. 2. Gex, M. & G. 249 ; Moore v. JJar- 
 
 (/) Sect. 3. ton, 4 De Gex & Smale, 517. 
 
 [n) lust. tit. 7, Dc Douationi- [1) If'itl v. Amis, 1 Best & 
 
 bus, cited by LordLoughborough, Smith, 109. 
 
 in Tate v. Hilbert, 2 Vcs. jun. (;«) 7 ra/v. 7>a/, 27 Beav. 303 ; 
 
 119; Walter V. Hodr/e, 2 Swaust. liankiti v. Weguelin, 27 Beav. 
 
 99. 309; Me Mead, Austin v. Mead, 
 
 (/() See aiite, p. 44; iniler v. 15 Ch. D. 651. As to cheques, 
 
 Miller, 3 P. Wms. 356. see ireicift v. A'ayc, L. R., 6 Eq, 
 
 (i) JDuffield V. Elivcs, 1 Sim. & 198, M. R. ; Bromley v. Brunton, 
 
 Stu. 244. L. R., 6 Eq. 275, V.-C. S. ; 
 
 (7i) SncUgrove v. Balhj, 3 Atk. Rolls v. Pcarcc, 5 Ch. D. 730.
 
 512 
 
 OF TERSONAL ESTATE GENERALLY. 
 
 mortis causa (n) ; it must also be made in expectation 
 of the donor's decease {o), and must be on condition 
 that the gift be absolute only on that event {p) . It is 
 no objection, however, that the donation is clogged with 
 a trust to be performed by the donee (q). A donation 
 mortis causa is revocable by the donor during his life (r), 
 and after his decease it is subject to his debts (s), to 
 stamp duties at the lilvo rates as are now charged on 
 the affidavits required to be made upon application for 
 probates or letters of administration (/), and also to 
 legacy duty (u). 
 
 Appointment 
 of executor 
 formerly es- 
 sential. 
 
 Executor en- 
 titled to all 
 personal pro- 
 perty of tes- 
 tator. 
 
 The mode of operation of a will of personalty is 
 essentially different from the operation of a will of lands 
 in this respect, that in strictness the appointment of an 
 executor was formerly essential to a will of personalty (.*') ; 
 and, at the present day, the usual and proper method is 
 to appoint an executor as to the personal estate ; whereas 
 under a devise of landed property, the lands pass at 
 once to the devisee, and the intervention of an executor 
 is quite unnecessary and inapplicable (/y) . The executor 
 of a will of personal estate becomes entitled, from the 
 moment of the death of the testator, to all his personal 
 property (c), which after payment of the debts of the 
 
 («) Wood V. Turner, 2 Ves. sen. 
 431 ; Bryson v. Brownrigg, 9 Ves. 
 1 ; Bunn v. Markham, 7 Taunt. 
 224 ; Rnddell \. Bobree, 10 Sim. 
 244 ; Farqtiharson v. Cave, 2 Coll. 
 356 ; Powell v. IlelUcar, 26 Beav. 
 261. 
 
 (o) Tate V. Hilbert, 2 Ves. jun. 
 Ill; 4Bro. C. C. 286. 
 
 (jtj) Edwards v. Jones, 1 My. & 
 Craig, 226 ; Staniland v. Willott, 
 3 Mac. & Gord. 664. 
 
 [q) Blount V. Burroto, 4 Bro. 
 C. C. 72 ; mils V. Hills, 8 Mee. 
 &Wcls. 401. 
 
 (r) 7 Taunt. 232. 
 
 («) 1 P. Wms. 406 ; 2 Ves. sen. 
 434. 
 
 (0 Stat. 44 Vict. c. 12, s. 38. 
 
 («) Stat. 36 Geo. III. c. 52, 
 s. 7 ; 8 & 9 Vict. c. 76, s. 4. 
 
 [x) Wentworth's Executors, 3, 
 4, 14th ed. ; 2 Bla. Com. 503. 
 
 {y) In the goods of Burden, Law 
 Rep., 1 Probate and Divorce 
 Cases, 325. 
 
 (r) Co. Litt. 388 a ; Com. Dig. 
 tit. Biens (C) ; Williams on Exe- 
 cutors, pt. 2, bk. 2.
 
 OF A WILL. 613 
 
 deceased he is bound to apply according to the direc- 
 tions of the will. Thus if the testator should specifically Executor's 
 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 suffioient to pay the debts of the deceased 
 without having recourse to the property so specifically 
 given {(() . 
 
 If the testator should appoint as his sole executor an 
 infant under the ago of twenty-one years, such infant 
 will not be allowed to exercise his ofiice diuing 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 Coui't of 
 Probate may think fit (h). Such person is called an Administra- 
 administrator (/;^>Yo;ic miiiore (etate{c). Formerly, if a mmore cetate. 
 married woman were appointed an executrix, she could Married 
 
 womai 
 cutrix 
 
 not accept the ofiice without the consent of her hus- "^^°™*^ ^^^' 
 
 band {d) ; and having accepted it with his consent, she 
 was unable, without his concurrence, to perform any 
 act of administration which might be to his prejudice ; 
 whilst he, on the other hand, might release debts due 
 to the deceased, or make assignment of the deceased's 
 personal estate, without his wife's concurrence [e) ; for, 
 according to the interpretation placed upon the general 
 rule of law that a husband and wife are but one per- 
 son (/), the power, and with it the responsibility, were 
 vested in the husband. It appears that, by the effect 
 
 {a) Toller's Executors, bk. 3, m'more cetate, see lie Cope, IG Cb. 
 
 s. 2 ; Williams on Executors, pt. D. 49. 
 
 3, bk. 3, ch. 4, s. 3. [d] Williams on Executors, pt. 
 
 {h) Stat. 38 Geo. III. c. 87, 1, bk. 3, ch. 1. 
 
 s. G. {e) Ibid. pt. 3, bk. 1, ch. 4 ; 5 
 
 {c) Williams on Executors, pt. E,ep. 27 b. 
 
 1, bk. 5, ch. 3, 8. 2. As to the (/) See Williams's Convey- 
 
 powers of an administrator (/«ra«/c.' anciiig Statutes, 375. 
 
 W.P.P. L L
 
 514 
 
 or PERSONAL ESTATE GEXERALLY. 
 
 Executor of 
 executor en- 
 titled to be 
 executor of 
 testator. 
 
 of the Married 'Women's Property Act, 1882 (r/), a 
 married woman is now capable of accepting the office of 
 executrix without the consent of her husband, and of 
 disposing of any jiroperty, which may devolve upon her 
 as executrix, in the same manner as if she were a feme 
 so\e{//). Before this Act took effect (/), a mamed 
 woman, being an executrix, might make a will without 
 the consent of her husband, confined to the personal 
 estate of which she was executrix (J) ; 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 (k). For it is a general rule, that if any 
 executor should die before having completely adminis- 
 tered the estate of his testator, the executor appointed 
 by the will of such executor will be entitled to complete 
 the distribution of the estate of the former testator (/). 
 
 Any one of 
 the executors 
 may perform 
 acts of ad- 
 ministration. 
 
 All must join 
 in bringing 
 action. 
 
 The testator however may, and usually does, appoint 
 more than one person his executors. In this case the 
 law regards all the co-executors as one individual per- 
 son ; and consequently any one of the executors of full 
 age may, during the life of his companions, perform, 
 without their eoncuiTence, all the ordinary acts of admi- 
 nistration, such as giving receipts, making j)ayments, 
 and selling and assigning the property {m). But all 
 the executors, infants included, must join in bringing 
 
 {ff) Stat. 45 & 46 Vict. c. 75, 
 88. 1 (sub-s. 2), 18, 24 ; see Wil- 
 liams's Conveyancing Statutes, 
 392, 408, 446, 447, 460—463; 
 Threlfall v. Wilson, 8 P. D. 18 ; 
 In the goods of Ay res, ib. 168. 
 
 {h) Sects. 1 (sub-s. 1), 2,5, 18; 
 see "Williams's Conveyancing Sta- 
 tutes, 373, 382, 383, 386—388, 
 418, 421, 446, 447. 
 
 (d) The Act came into opera- 
 tion on the 1st Jan. 1883. 
 
 {j) Williams on Executors, pt. 
 1, bk. 2, ch. 1, s. 2. 
 
 {Jc) See Williams's Conveyanc- 
 ing Statutes, 450, 451, 455. 
 
 (0 2 Bla. Com. 506. And it 
 seems that he is bound to do so ; 
 BrooJce t. Saynes, Lavr Kep., 6 
 Eq. 25, M. E. 
 
 (;».) Shep. Touch. 484.
 
 OF A wn,T,. 515 
 
 actions respecting the estate (;/). If, therefore, the tos- Appointment 
 tator appoint a person indebted to liim as his executor, executor^ 
 or one of his executors, this appointment will operate 
 at law as a release of the debt (o) . For the debt is a 
 chose in action, and a man cannot cither solely or con- 
 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 {p). On the decease of any co-executor, Survivorship 
 the office survives to those who remain (q) ; and imtil executor" 
 recently, if one of them should have renounced the Renunciation 
 
 executorsliiv) in the lifetime of his companions, he micrht ^7 oi^e m life- 
 ^ . . time 01 others. 
 
 at any time have changed his mind and undertaken the 
 
 office. But if, having survived all his companions, he 
 
 should then have renounced (r), or, if, without such 
 
 renunciation, administration should have then been 
 
 granted to another person (.s), he could not afterwards 
 
 have interfered. It is however now provided by the Rights of 
 
 Court of Probate Act, 1857, that where any person eS^e'^on hTs"^ 
 
 after the commencement of that Act (/), (which was fixed renouncing ; 
 
 by Order in Council for the 11th of January, 1858,) 
 
 renounces probate of the will of which he is appointed 
 
 executor or one of the executors, the rights of such 
 
 person in respect of the executorship shall wholly cease ; 
 
 («) Williams on Executors, pt. (;;) Bac. Abr. tit. Executors 
 
 2, bk. 1, cli. 2. An ejectment was and Administrators (A), 10 ; Sim- 
 
 an exception, as any one executor moiis v. Guttcridgc, 13 Ves. 26-1. 
 
 might demise the entirety of the {q) As to the sui'vivorship of 
 
 testator's leasehold land ; Doe d. powers and trusts given to or 
 
 Stace V. Wheeler, 15 Mee. & Wels. vested in two or more executors, 
 
 623. The old proceedings in see Williams's Conveyancing Sta- 
 
 ejectment were abolished by 15 tutes, 194 — 198. 
 
 & 16 Vict. 0. 76, ss. 168 ct scq. ; {r) Hemloc's case, 9 Rep. 36 ; 
 
 see Williams on Settlements, 247 C'ressivic/c v. Woodhcad, 4 Man. & 
 
 —249. Gran. 811. 
 
 (o) Wentworth's Executors, 73, (s) Venabhs v. E(xst India Coni' 
 
 14th ed. ; Frcaldoj v. Fox, 9 B. & pawj, 2 Ex. Rep. 633. 
 
 Cress. 130. {t) In the (joods of Witham, Law 
 
 Rep., 1 Probate, 303. 
 L L 2
 
 516 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 or dying be- 
 fore probate. 
 
 Executor de 
 son tort. 
 
 Executor's 
 right of re- 
 tainer. 
 
 and tlie representation to the testator and tlie administra- 
 tion of his effects shall, without any further renunciation, 
 go, devolve and be committed in like manner, as 'A such 
 person had not been appointed executor (?/). And by a 
 subsequent Act the same effect is produced whenever an 
 executor named in a will survives the testator, but dies 
 without having taken probate, and whenever an executor 
 named in a will is cited to take probate and does not 
 appear to such citation [x] . When two or more execu- 
 tors prove, the executor of the will of the survivor of 
 them will, after the decease of all of them, be entitled 
 to act as executor of their testator. 
 
 If any person not duly authorized should intermeddle 
 with the goods of the testator, or do any other act re- 
 lating to the office of executor, he thereby becomes an 
 executor of his own wTong, or, as it is called in law 
 French, an executor de son tort. Such an executor is 
 liable 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 between such an executor and one 
 who has been duly appointed is this, that an executor de 
 son tort is not allowed to derive any benefit from his own 
 wrongful intermeddling ; whereas a regularly appointed 
 executor, if a creditor of the deceased, may lawfully 
 retain his own debt out of the legal assets in preference 
 to all other debts of the same degree {//) . It appears, 
 however, that, if the estate of a deceased debtor be 
 
 (m) Stat. 20 & 21 Vict. c. 77, 
 s. 79. 
 
 (a) Court of Probate Act, 1858, 
 21 & 22 Vict. c. 95, s. 16. 
 
 ( y) Williams on Executors, pt. 
 1, bk. 3, ch. 5; pt. 3, bk. 2, ch. 2, 
 s. 6. It has been held that, 
 notwithstanding the provisions of 
 Stat. 32 & 33 Vict. c. 46 {ante, 
 pp. 158, 159), an executor, who 
 
 is a simple contract creditor, 
 cannot exercise his right of re- 
 tainer as against a creditor by 
 specialty; Wilson v. Coxwell, 23 
 Ch. D. 764. An executor has 
 no right of z-etainer out of equit- 
 able assets; Bain v. Sadler, L. R., 
 12 Eq. 570 ; IFalicrs v. Walters, 
 18 Ch. D. 182.
 
 OF A WILL. 517 
 
 administored in banla'U2')tcy under tlio Bankruptcy Act, 
 1883 (z), tlio executor will lose the priority given to him 
 by his right of retainer {a) . 
 
 The most strildng difTerence between a will of personal 
 estate and a will of lands yet remains to be noticed. A 
 will of lands has always operated and still operates as 
 a mode of conveyance requiring no extrinsic sanction to 
 render it available as a document of title. But a will of A will of pcr- 
 personal estate has always required to be proved. This bTprovedr'' 
 probate of the will was until recently required to be made 
 in some ecclesiastical court. But by the Court of Pro- 
 bate Act, 1857 (b), the jurisdiction of all the ecclesiastical 
 courts over wills was entirely abolished, and a court was 
 established called the Court of Probate, with a principal 
 registry in London and district registries throughout 
 the kingdom, in which all wills of personal estate were 
 required to be proved. The Court of Probate is, as we Court of Pro- 
 have seen (r), now merged in the High Court of Justice, *®* 
 and all causes and matters, which would have been within 
 its exclusive cognizance, if the Supreme Com't of Judi- 
 catiu'e Acts had not passed, are now assigned to the 
 Probate, Divorce and Admiralty Division of the High 
 Court. In this division of the Court the will itself is 
 deposited ; and a copy of the will, which is given by the 
 Court to the executor on proving, denominated the pro- 
 bate copy, is the only proper evidence of the right of the The probate 
 executor to intermeddle with the personal estate of his t^i^ only _^ 
 testator {d) . Before probate, however, the executor may deuce. 
 
 {z) Stat. 4C & 47 Vict. c. 52, Zee v. XidtaU, 12 Ch. D. Gl. 
 
 s. 125 ; ante, pp. 282—285. {/>) Stat. 20 & 21 Vict. c. 77, 
 
 (a) See sect. 125, sub-ss. 5—6, amended by stat. 21 & 22 Vict. 
 
 ante, pp. 283, 284 ; Fry, J., lie c. 95. 
 
 Maggi, Winchousc v. Winehouse, (r) Ante, p. 99. 
 
 20 Ch. D. 545, 550. An exe- \d) Rex v. Netherseal, 4 T. R. 
 
 outer's right of retainer was not 2G0 ; Wms. Ex. pt. 1, bk. 4, 
 
 abolished by stat. 38 & 39 Vict. ch. 1. 
 c. 77, 8. 10 {ante, p. 153, n. (c) ) ;
 
 518 
 
 OF PEKSONAL ESTATE GENERALLY. 
 
 Acts of exe- 
 cutor bcf 01 
 probate. 
 
 perform all tlie ordinary acts of administration, sucb. as 
 receiving and giving receipts for debts due to the testa- 
 tor, 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 valid proof ; without it, there- 
 fore, no action or suit can be maintained, although pro- 
 ceedings may be commenced before, and carried up to 
 the point where the evidence is required (e). 
 
 Ecclesiastical 
 jurisdiction 
 over wiUs. 
 
 The jurisdiction of the ecclesiastical courts over wills 
 of personal estate was of a very ancient origin. The pro- 
 bate of wills of personalty, as a means of their authen- 
 tication, appears to have been in use from the very 
 earliest times. The first persons by whom probate w^as 
 granted were said to be the lords of manors ; and some 
 vestiges of this ancient right long remained in the case 
 of one or two manors, the lords of which retained such 
 a jmisdiction (_/') until abolished by the Court of Probate 
 Act, 1857 (r/). But so early as the time of Grlanville, 
 who wrote in the reign of Henry II., the ecclesiastical 
 comis had acquired an exclusive right to determine on 
 the validity of a will or the bequest of a legacy (/?). 
 And from this period the right of the Church to inter- 
 fere in testamentary matters became gradually settled, 
 though not without much opposition on the part of the 
 temporal lords. 
 
 In what court A "^dU was required to be proved in the court of the 
 
 have\een°^^ ^ bishop or Ordinary in whose diocese the testator dwelt, 
 
 taken out. and within whose jurisdiction the personal effects of the 
 
 testator consequently lay. But if there were effects to 
 
 (e) Williams on Executors, pt. 
 1, bk. 4, ch. 1, s. 2; Stuart v. 
 Burroircs, I Diniry, 265, 274. 
 
 (/) Wentwortii's Ex. 14tli ed. 
 99, 100 ; Toller's Executors, 50. 
 
 {g) Stat. 20 & 21 Vict. c. 77, 
 s. 3. 
 
 (A) Glanville, lib. 7, cc. 6, 7 ; 
 1 Reeves's Hist. Eng. Law, 72.
 
 OF A WILL. 519 
 
 the value of o/., called bona notahiUa, in two distinct Bonanota- 
 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 (/). If there were personal effects within 
 two provinces, the Avill must have been proved in each 
 province, either in the Prerogative Court, or in some 
 court of inferior jurisdiction ; observing, as to each pro- 
 vince, the same ride as would have applied had the 
 testator had no property elsewhere (A) . If probate were Probate void, 
 granted by a bishop, or other inferior judge, in a case 
 where the deceased had goods to the value of 61. in any 
 other diocese in the same province, such probate was 
 absolutely void ;" but probate granted by an archbishop, 
 in a case where the deceased had not bona nofabilia in 
 divers dioceses, was voidable only, and not absolutely Voidable, 
 void (/). But the Court of Probate Act, 1857, now Now valid, 
 renders valid all 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 {ni). 
 And any will may now be proved in the principal regis- Probate iu 
 try of the Probate, Divorce and Admiralty Division of ^egSy! 
 the High Com*t of Justice, without regard to the abode 
 of the testator {j}). But if the testator had, at the time In district 
 of his death, a fixed place of abode within any district, ^^S^^*^* 
 his will may be proved in the registry of that district (o) ; 
 and the grant so made will be effectual even if the tes- 
 tator should not have had any fixed place of abode 
 within that district (^;). 
 
 (0 Williams on Executors, pt. 2 Bing. N. 0. 186. 
 l,bk.4, ch. 2. For an account of (w) Stat. 20 & 21 Vict. c. 77, 
 
 tlie rise of the archbisliop's juris- s. 86 ; In the goods of TncJicr, 2 
 
 diction, see Gent. Mag. New Sw. & Trist. 123 ; 9 W. R. 420. 
 Series, vol. 12, p. 582. («) Stat. 20 & 21 Vict. c. 77, 
 
 (/i) Second Report of Real Pro- s. 59. 
 perty Commissioners, 67. (o) Sect. 46. 
 
 (/) "Wentworth's Executors, {p) Sect. 47. 
 
 110, 14th ed. ; Lij.'isonsv. Barroxr,
 
 620 or TEKSONAL ESTATE GENERALLY. 
 
 Evidence re- The GvidencG required for the proof of a will varies 
 bate! *^^^^°' according to the form of the attestation, and also ac- 
 cording 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 formali- 
 ties required by the Wills Act (r) have been complied 
 with ; thus, " Signed and declared by the above-named 
 A. B., the testator, as and for his last will and testa- 
 ment, in the jDresence 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 be- 
 lieves 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 (r), 
 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 exe- 
 cutor's oath, is required from one of the subscribing 
 witnesses, that the will was executed in compliance mth 
 the statute is). Probate in either of the above modes 
 Probate in is termed probate in common form. But if the validity 
 common orm, ^^ ^-j^^ ^^^-^ should be disputed, or any dispute should be 
 in solemn anticipated by the executor, the will is proved in solemn 
 orm. form per testes. 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 pretend- 
 ing to have any interest, who are cited to be present to 
 see the proceedings. When a will has once been proved 
 
 (>•) Stat. 7 Will. IV. & 1 Vict. rally the same as the old practice 
 
 c. 2G, s. 9, ante, p. 507. of the Prerogative Court of the 
 
 (s) Williams on Executors, pt. Archbishop of Canterbury ; stat. 
 
 1, bk. 4, eh. 3, s. 3. The practice 20 &- 21 Vict. c. 77, s. 29. 
 of the Court of Probate was gene-
 
 OF A WILL. 521 
 
 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 com- 
 pelled by any party interested to prove it per tcdcs 
 in solemn form (/). Tlio contentious jurisdiction mth 
 respect to the grant and revocation of probates of wills 
 has been transferred to the county courts in cases County 
 where the personalty is under the value of 200/., ^°"^*^- 
 and the deceased was not at the time of his death 
 beneficially entitled to any real estate of the value of 
 300/. {u). 
 
 By a statute of George III. (.r) probates of wills and stamp duties 
 letters of administration {y) were charged with an ad °^ Pi"*Jbate. 
 valorem stamp duty assessed upon the value of the 
 personal estate of the testator or intestate, and were 
 required to be stamped. But a statute of the year 
 1864 (::) provided that no stamp duty should be charge- 
 able on any probate or letters of administration in any 
 case where the whole estate and effects of the deceased {a) 
 should not exceed in value the sum of 100/. By the 
 Customs and Inland Revenue Act, 1880 (i), the duties 
 specified in the schedule to that Act weie charged uj)on 
 probates and letters of administration in lieu of the duties 
 previously payable. But it is enacted in the Customs 
 and Inland Revenue Act, 1881 (c), that the duties 
 
 [1) Williams on Executors, pt. of the effects of a person -who has 
 
 1, bk. 4, oh. 3, s. 4. died intestate is called letters of 
 
 («) Stat. 21 & 22 Vict. c. 95, administration. See next chapter, 
 
 s. 10. {-) Stat. 27 & 28 Vict. c. 56, 8.4. 
 
 (.r) Stat. 55 Geo. III. c. 184, (a) Exclusive of what he should 
 
 ■which superseded stats. 48 Geo. have been possessed of or entitled 
 
 HI. c. 149, and 44 Geo. III. c. 98; to as a trustee for any other per- 
 
 and was amended by stats. 5 & 6 son or persons, and not bene- 
 
 Vict. c. 79, s. 23, and 22 & 23 fifcially. Ibid. 
 
 Vict. c. 36, s. 1. (/') Stat. 43 Vict. c. 14, s. 9. 
 
 [y) A grant of administration {r) Stat. 4i Vict. c. 12, s. 27.
 
 522 OF PEKSONAL ESTATE GENERALLY. 
 
 imposed by the Act of 1880 upon probates of wills and 
 letters of administration shall not be payable upon 
 probates or letters of administration granted on and 
 after the 1st day of June, 1881 ; and that on and after 
 that day there shall, save as is thereinafter ^expressly pro- 
 videdy be charged and paid on the affidavit to be required 
 and received from the person aj)plying for the probate 
 or letters of administration the stamp duties thereinafter 
 specified. These duties are stated in the note (d) . The 
 
 {d) Where the estate and efPects for or 
 
 iu respect of which the probate or 
 
 letters of administration is or are to 
 
 be granted, exclusive of what the 
 
 deceased shall have been possessed 
 
 of or entitled to as trustee, and not 
 
 beneficially, shall be above the value 
 
 of 100?., and not above the value of Duty, 
 
 500/ At the rate of one pound for 
 
 every full sum of 50/., and for 
 any fractional part of 50/. over 
 any multiple of 50/. ; 
 Where such estate and efPects shall be 
 
 above the value of 500/., and not 
 
 above the value of 1,000/ At the rate of one pound five 
 
 shilKngs for every full sum of 
 50/., and for any fractional 
 part of 50/. over any multiple 
 of 50/. ; 
 Where such estate and effects shall be 
 
 above the value of 1,000/ At the rate of three pounds for 
 
 every full sum of 100/., and 
 for any fractional part of 100/. 
 over any multiple of 100/. 
 
 The exception referred to in the above enactment relates to the 
 special provisions made by the Act (sects. 3 3 — 36) for obtaining probate 
 or letters of administration in cases where the whole personal estate 
 and effects of any person dying on or after the 1st June, 1881 (inclusive 
 of property by law made such personal estate and effects for the pur- 
 pose of the charge of duty, and any personal estate and effects situate 
 out of the United Kingdom), without any deduction for debts or 
 funeral expenses, shall not exceecl the value of 300/. In such cases, 
 where the estate and effects exceed the value of 100/., a fixed stamp 
 duty of 30s., and no more, is payable on the affidavit, if application 
 be made in accordance with the special provisions mentioned.
 
 01'' A AVILL. 523 
 
 effect of this enactment is that probate duty Is now 
 payable in respect of the affidavit made for the purpose 
 of obtaining a grant of probate, instead of upon the 
 probate of the will itself. And it is further enacted in 
 the same Act {(■) that, as respects the duties imposed on 
 affidavits in substitution for the duties on probates or 
 letters of administration, the several provisions now in 
 force in relation to the last-mentioned duties shall, so 
 far as the same are consistent with the provisions of this 
 Act, be deemed to be applicable to the said duties thereby 
 imposed ; and in the application thereof a probate or 
 letters of administration having thereon such a certificate 
 as is mentioned in the Act shall for all purposes be deemed 
 to have been duly stamped in respect of the value stated 
 in the certificate. The stamp duties imposed by the 
 Act of 1881 are under the care and management of the 
 Commissioners of Inland Revenue, to whom the affi- 
 davits in question have to be delivered (/). And the Act 
 provides {(/) that no probate or letters of administration 
 shall be granted by the Court, unless the same bear a 
 certificate in writing under the hand of the proper officer Certificate, 
 of the Court, showing that the affidavit for the Com- 
 missioners of Inland Eevenue has been delivered, and 
 that such affidavit, if liable to stamp duty, was duly 
 stamped, and stating the amount of the gross value of 
 the estate and effects as shown by the account. 
 
 Formerly those effects of the testator, which were situate 
 A^ithin the jurisdiction of the spiritual judge granting 
 probate, were alone valued for tlie purpose of assessing 
 the probate duty (//) . And the principle still remains 
 that probate or administration can only be granted in re- 
 spect of effects situate within the jurisdiction of the Court 
 by which the grant is made. Accordingly, in order to 
 
 {,') Stat. 44 Vict. c. 12, s. 26, (A) A. -G. v. Hope, 2 CI. & Fin. 
 
 sub-s. 3. 84 ; A.-G. v. JJouwois, 4 M. & TV. 
 
 (/) Sects. 26, 29. 171. 
 (r/) Sect. 30.
 
 524 
 
 OF PERSONAL ESTxiTE GENERALLY. 
 
 Indian 
 
 government 
 
 notes. 
 
 obtain a grant of probate or administration from tbe 
 Probate Division of the High Court of Justice in Eng- 
 land, duty is payable only in respect of effects situate in 
 England, unless there be effects of the testator situate in 
 Ireland or Scotland, and it be desired to extend the effect 
 of the grant to the testator's Irish or Scotch effects (/). 
 For by statutes of the present reign provision is made 
 for extending to Ireland and Scotland the effect of pro- 
 bates and letters of administration granted in England ; 
 for extending to England and Scotland the effect of 
 probates and letters of administration granted in Ireland ; 
 and for extending to England and Ireland the effect of 
 confirmations, as they are called, of executors in Scot- 
 land. In order to obtain such an extension of effect, the 
 probate, letters of administration or confirmation must 
 be produced in the proper Court in Ii-eland, Scotland, or 
 England, as the case may be, and duly sealed or cer- 
 tified (/»■). And if a person domiciled in England has 
 died possessed of personal estate situate in Scotland or 
 Ireland, and it be desired to obtain in England a grant 
 of probate or administration, of which the effect may 
 be extended to Scotland or Ireland, the affidavit required 
 by law to be made on applying for probate or adminis- 
 tration must extend to and include, and stamp duty 
 will be chargeable in respect of the whole of the personal 
 and moveable effects of the deceased in the United 
 Kingdom and the value thereof (/) . 
 
 A statute of the present reign provides that all Indian 
 government promissory notes and certificates issued or 
 stock created in lieu thereof, being assets of a deceased 
 person, the interest whereon shall be payable in London 
 
 (j) See the same cases ; stat. 
 20 & 21 Vict. c. 77, s. 4 ; Fer- 
 nandes' Executors' case, L. R., 5 
 Ch. 314, 317 ; 1 Wms. Exors. 
 pt. 1, bk. 7, pp. 617 et seq., 7th ed. 
 
 {k) Stats. 20 & 21 Vict. c. 79, 
 
 ss. 94, 9.5; 21 & 22 Vict. c. 56, 
 88. 12—15 ; 21 & 22 Vict. c. 95, 
 s. 29. 
 
 (0 Stat. 21 & 22 Vict. c. 56, 
 8. 15. As to ships at sea, see 
 stat. 27 & 28 Vict. c. 56, s. 4.
 
 OF A WILL. 525 
 
 by drafts payable in India, and wliicli at the decease 
 of the owner thereof shall have been registered in the 
 books of the Secretary of State in Council in London, or 
 in the books of the Governor and Company of the Bank 
 of England, or shall have been enfaced in India for the 
 purpose of being so registered before the decease of the 
 owner thereof, and all Indian government promissory 
 notes issued with coupons attached, which, under such 
 regulations and conditions as may be determined from 
 time to time by the secretary of state in council, shall 
 be so registered, and all certificates issued or stock 
 created in lieu thereof, shall be deemed and taken to 
 be personal estate and bona notabilia of such deceased 
 person in England ; and j^robate or letters of adminis- 
 tration in England, or confirmation granted in Scotland 
 and sealed with the seal of the principal coui't of ^^ro- 
 bate in England, shall be suflBcient to constitute the 
 persons therein named the legal personal representatives 
 of the deceased with respect to such notes and money •* 
 
 as aforesaid (;;/). Probates of wills operating merely Powers of 
 in exercise of powers of appointment over property of 'ippoi^itment. 
 which the deceased had no ownership, were formerly 
 held to be exempt from probate duty in respect of the 
 value of the property appointed (>?). But it is now rrobatc duty 
 provided, that probate duty shall be paid in respect of ^°^' payable. 
 all the personal or moveable estate and effects which 
 any person dying after the 3rd of April, 18G0, shall 
 have disposed of by will under any authority enabling 
 such person to dispose of the same as he or she shall 
 think fit (o). The distribution of the eifects of officers Officers and 
 and soldiers dying on service is provided for bv the sol'iK-'rs/lyuig 
 
 •'on service. 
 
 Eegimental Debts Act, 18G3 {p). Exemptions from geamen &c. 
 
 (m) Stat. 23 Vict. c. 5, s. 1. As iu the House of Lords, l)ra];c v. 
 
 to bonds and sijecialties, see stat. Attorney -General, 10 CI. & Fin. 
 
 25 Vict. c. 22, s. 39. 257. 
 
 («) Flatt V. liouth, 6 Mee. & {(>) Stat. 23 Vict. c. 15, a. 4. 
 
 Wels. 756; 3 Beav. 257; affirmed (;.) Stat. 26 & 27 Vict. c. 57,
 
 m 
 
 OF PEUSONAL ESTATE GENERALLY, 
 
 Civil I 
 
 Seamen's 
 wills. 
 
 j)robate duty have been made by Parliament in favoiu* 
 of tlie effects of common seamen, marines and soldiers, 
 wbo may be slain or die in the Queen's service (q) . And 
 pay, wages, prize money, or pensions due to deceased 
 naval officers, marines, seamen and others employed in 
 the navy, whose Avhole assets shall not exceed thirty- 
 two pounds, are allowed to be paid out without probate 
 of their wills (r). And the exemptions thus made have 
 recently been extended to all persons to whom any sum 
 of money, not exceeding one hundred pounds, may be 
 payable by a public department in respect of civil pay 
 or allowances, or annuities granted under authority of 
 Parliament (-s) . And in the case of any civil or military 
 allowances chargeable to the army votes, and of army 
 prize money, the existing exemj)tions are extended to 
 the sum of one hundred pounds (/), Probates of the 
 wills of petty officers and seamen in the royal navy and 
 of marines and non-commissioned officers of marines are 
 placed by Act of Parliament under the care of an officer 
 called the Inspector of Seamen's Wills, and are subject 
 to special regulations made to prevent frauds on persons 
 proverbially careless and liable to imposition (u). And 
 with respect to merchant seamen, the Merchant Ship- 
 ping Act, 1854, now provides, that if the money and 
 effects of any such seamen do not exceed in value the 
 sum of 50/., probate may be dispensed with at the dis- 
 cretion of the Board of Trade (.r). Before the 1st of 
 June, 1881, probate duty was in the first place paid on 
 
 amended by stat. 44 & 45 Vict. 
 c. 57, s. 51 ; and see the Army 
 Prize (Shares of Deceased) Act, 
 1864, stat. 27 & 28 Vict. c. 36. 
 
 {q) Stat. 55 Geo. III. c. 184. 
 
 {>•) Stat. 4 & 5 Will. IV. c. 25, 
 s. 8. 
 
 (s) Stat. 31 & 32 Vict. c. 90, 
 s. 1. 
 
 (0 Sect. 2. 
 
 («) Stat. llGeo. IV. & 1 Will. 
 IV. c. 20, ss. 55 — 58, amended by 
 stat. 2 & 3 Will. IV. c. 40, ss. 12, 
 13; 4 & 5 Will. IV. c. 25, s. 8; 
 WUliams on Executors, pt. 1, 
 bk. 4, ch. 4 ; bk. 5, ch. 2, s. 4. 
 
 (r) Stat. 17 & 18 Vict. c. 104, 
 s. 199.
 
 OF A WILL. 527 
 
 the wliole value of the personal estate of the testator 
 without allowing for his debts ; and after the doLts had 
 been paid, a return of part of the probate duty was made 
 according to the value to which the estate might have 
 been reduced by the payment of the debts. But, from Mortgage of 
 and after the 1st of September, 18G8, where leasehold 
 estates were the sole security by way of mortgage, for any 
 debts due from the deceased, the amount of such mort- 
 gage debts might be deducted from the value of the said 
 leasehold estate (//) . As some persons attempted to evade 
 probate duty l)y means of voluntary bonds to take effect 
 at their decease, in lieu of legacies, it was provided that 
 no return of probate duty should be made in resj)ect of 
 any voluntary debt due from any person dying after Voluntary 
 the 28th of June, 1861, which should be expressed to be *"®^*^*^- 
 payable on the death of such person, or payable imder 
 any instrument which should not have been bona fide 
 delivered to the donee thereof three months before the 
 death of such person (~). The duty charged upon affi- 
 davits made to obtain a grant of probate or administra- 
 tion {a) is noAV payable only in respect of the value of 
 the personal estate of the deceased after deducting the 
 amount of his debts and funeral expenses. For it is 
 enacted in the Customs and Inland Revenue Act, 
 1881 {b), that on and after the 1st day of June, 1881, 
 in the case of a. person dying domiciled in any part of 
 the United Kingdom, it shall be lawful for the person 
 applying for the probate or letters of administration in 
 England or Ireland, to state in his affidavit the fact of 
 such domicile, and to deliver therewith or annex thereto 
 a schedule of the debts due from the deceased to persons 
 resident in the United Kingdom, and the funeral 
 expenses, and in that case, for the purpose of the charge 
 of duty on the affidavit, the aggregate amount of the 
 
 (y) Stat. 31 & 32 Vict. c. 121, s. 8. 
 s. 7. (ff) Ante, p. 622. 
 
 {z) Stat. 24 & 25 Vict. c. 92, {(>) Stat. 44 Vict. c. 12, s. 28.
 
 528 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 debts and funeral expenses appearing in the seliedule 
 shall be deducted from the value of the estate and effects 
 as specified in the account delivered with or annexed to 
 the affidavit. Debts to be deducted under the power 
 hereby given shall be debts due and owing from the 
 deceased, and payable by law out of any part of the 
 estate and effects comprised in the affidavit, and are not 
 to include voluntary debts expressed to be payable 
 on the death of the deceased, or payable under any 
 instrument which shall not have been bona fide de- 
 livered to the donee thereof three months before the 
 death of the deceased, or debts in respect whereof any 
 real estate may be primarily liable, or a reimbursement 
 may be capable of being claimed fi'om any real estate 
 of the deceased, or from any other estate or person (c). 
 Funeral expenses to be deducted under the power 
 hereby given shall include only such expenses as are 
 allowable as reasonable funeral expenses according to 
 law. 
 
 Payment of 
 funeral and 
 testamentary 
 expenses and 
 debts. 
 
 Powers of 
 executors. 
 
 Purcliaser 
 from executor 
 not bound to 
 inquire if 
 there be debts. 
 
 When the will has been proved, it is the duty of the 
 executor to pay the testator's funeral (d) and testa- 
 mentary {(') expenses and debts out of the personal 
 estate, to which such executor becomes entitled by 
 virtue of his ofiice. For this purpose the executor has 
 reposed in him by the law the fullest powers of disposi- 
 tion over the personal estate of the deceased, whatever 
 may be the manner in which it has been bequeathed 
 by the will (_/). And in the event of a sale of any such 
 property by the executor, the purchaser is not bound to 
 inquire whether there are any debts remaining unpaid; 
 
 ((') See Principles of the Law 
 of Eeal Property, 437—439, 13th 
 ed. ; 461 — i64, 14th ed. 
 
 {d) See 2 "Wms. Exors. pt. 3, 
 bk. 2, ch. 1, s. 1 ; ch. 2, s. 1 ; 
 pt. 4, bk. 2, ch. 2, s. 1, pp. 968— 
 972, 988, 1788—1791, 7th ed. 
 
 (f) See Sharp v. Lush, 10 Ch. D. 
 468 ; Fennt/ v. Fen>u/, 11 Ch. D. 
 440. 
 
 (/) Ewer V. Corbet, 2 P. Wms. 
 148 ; Fussell V. Fiaice, 18 Beav. 
 21.
 
 OF A WILL. 
 
 529 
 
 for, iu the absence of evidence to the contrary, the exe- 
 cutor is presumed to he acting in the proper discharge 
 of his office {g) . Nor is the purchaser at all concerned ^"or to see to 
 with the application which the executor may make of tion of hia 
 the purchase-money ; hut the executor's receipt will he p^ircliase- 
 
 . . . ., ■. money. 
 
 a sufficient discharge, and he alone will be responsible 
 to the creditors and legatees for its due application (A) . 
 The proper funeral expenses of the deceased are Priority of 
 payable in full in priority to any debt, duty or charge P^^™*^^ ^• 
 whatever. Subject thereto, the testamentary expenses, 
 or expense of obtaining probate of the "svill and ad- 
 ministering the estate, ought to be paid in full in 
 priority to all other claims (/). The estate should then 
 be applied iu satisfaction of the debts of the deceased. 
 As we have seen, under the Bankruptcy Act, 1883 (/.-), 
 the estate of a deceased debtor, which is insufficient to 
 pay all his debts in full, may, at the instance of a 
 creditor, be administered in bankruptcy and distributed 
 according to the law of bankruptcy. In such a case, it 
 appears that no priority will be given to any debts or 
 claims, other than debts or claims to which priority 
 is expressly given by the Bankruptcy Act, 1883 (/). 
 But that Act does not directly abolish the priority 
 previously given by law to certain debts in the ad- 
 ministration of the assets of a deceased person. It 
 appears therefore that, subject to the right of a cre- 
 ditor of a deceased person to take proceedings to have 
 his estate administered in banla'uptcy, his debts are 
 still payable hy his executor in the order which obtained 
 before the Bankruptcy Act, 1883, took effect [m). This 
 
 {()) Xugcnt V. Gifforcl, 1 Atk. (/.) Stat. 46 & 47 Vict. c. 52, 
 
 463 ; Elliot v. Mcrrlman, 2 Atk. s. 125 ; ante, pp. 153, 282—285. 
 
 42. {I) See sects. 40, 125, sub-ss. 
 
 (A) Whale V. Booth, 4 T. Rep. 6, 7 ; ante, pp. 250—252, 283, 
 
 625, n.; M'Leocl v. Dnimmond, 284,516,517. 
 
 17 Ves. 154. {>») See lie Eadcliffe, 7 Ch. D. 
 
 (0 2 Wms. Exors. pt. 3, bk. 733. 
 2, ch. 2, 8. 1, pp. 988, 989, 7th ccl. 
 
 W.P.P. M M
 
 530 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Power of 
 executor to 
 accept com- 
 position for 
 debt, &c. 
 
 Application 
 to the Court. 
 
 order is stated in the iiote(«).' It is enacted in the 
 Conveyancing and Law of Property Act, 1881 (o), that 
 an executor may pay or allow any deht or claim on any 
 evidence that he thinks sufficient. Also, that an exe- 
 cutor may, if and as he thinks fit, accept any com- 
 position or any security, real or personal, for any debt 
 or for any property, real or personal, claimed, and may 
 allow any time for payment of any debt, and may 
 compromise, compound, abandon, submit to arbitration, 
 or otherwise settle any debt, account, claim or thing 
 whatever relating to the testator's estate, and for any of 
 those purposes may enter into, give, execute and do 
 such agreements, instruments of composition or arrange- 
 ment, releases, and other things as to him seem ex- 
 pedient, without being responsible for any loss occa- 
 sioned by any act or thing so done by him in good 
 faith (p). 
 
 Every executor is entitled to obtain the assistance of 
 the Coui-t in deciding any questions which may arise in 
 
 («) 1. Cro\ni debts ; ante, pp. 147, 148. 
 
 2. Debts to wbich priority is given by particular statutes ; see 
 2 "Wms. Exors. pt. 3, bk. 2, cb. 2, s. 1, pp. 993 et seq., 7tb ed. ; 
 Seton on Decrees, 815, 4tb ed. 
 
 3. Registered judgments obtained against the deceased; ante, pp. 
 152, 153, and cases cited in notes (r), {v). 
 
 4. Judgnients obtained against the executor, -whether registered or 
 unregistered; ante, pp. 152, 153, and cases cited in notes (r), {v) ; see 
 Seton on Decrees, 816, 4th ed. 
 
 5. Recognizances and statutes ; ante, p. 157. 
 
 6. Other debts incm-red for value, whether by special or simple 
 contracts, including judgments obtained against the deceased, but not 
 duly registered ; ante, pp. 152, 153, and cases cited in notes (r), (v), 
 158, 159, 163, 164; see Seton on Decrees, 816, 4th ed. 
 
 7. Voluntary bonds and covenants ; ante, pp. 163, 164. As to the 
 executor's right of retainer, see ante, p. 517, and note (a) thereto. 
 
 (o) Stat. 44 & 45 Vict. c. 41, (p) Sect. 37, sub-s. 2 ; as to 
 
 B. 37, sub-s. 1 ; as to the effect 
 of this enactment, see Williams's 
 Conveyancing Statutes, 191, 192, 
 194. 
 
 the effect of this enactment, 
 see Williams's Conveyancing 
 Statutes, 192—194.
 
 OF A AVIIJ. 531 
 
 the course of the proper performance of his duties {q). 
 And the costs incurred by oLtaining the assistance of 
 the Court in the administration of the estate are con- 
 sidered and rank as testamentary expenses (r). For- By suit, 
 merly, in order to procure this assistance, an executor 
 was obliged to commence a suit in equity and obtain a 
 decree for the general administration of the estate under 
 the direction of the Court of Chancery (.s) . After the 
 Court of Chancery had pronounced such a decree, it 
 woidd grant an injunction to restrain a creditor of the 
 deceased or a legatee from taking any further pro- 
 ceedings against the executor, either at law or in equity ; 
 on the ground that the continuance of any such pro- 
 ceedings would necessarily be prejudicial to the just 
 administration of the assets (/'). By statutes of the By motion, 
 present reign the executors were empowered immedi- summons?^ 
 ately, or at any time after probate, to apply to the 
 Court of Chancery for an order to be made upon mo- 
 tion or petition of course, or by the judge at chambers, 
 referring it to the chief clerk of the judge to take an 
 account of the debts and liabilities affecting the per- 
 sonal estate of the deceased and to report thereon ; and 
 after any such order should have been made, proceed- 
 ings at law by the creditors against the executors might 
 have been restrained or suspended by the Court until 
 the account directed by such order should have been 
 taken («) . As we have seen {x) , by the Judicature Act 
 
 (;?) Jessel, M. E., Sharp v. Gardner y. GarraK, 20 Beav. iCd. 
 
 Lush, 10 Ch. D. 468, 470, 471. See Mitford on Pleading, 1G8, 
 
 (>•) Ibid.; Fenny v. Fenny, 11 4th ed. ; 2 Wms. Exors. 1914, 
 
 Ch. D. 440 ; see ante, p. 529. 1915, 7th ed. ; Seton on Decrees, 
 
 (.s) See 1 Van Heythuysen's 325, 326, 4th ed. 
 
 Equity Draftsman, 278, 320, («) Stats. 13 & 14 Vict. c. 35, 
 
 2nd ed. ; 1 Spence's Equitable s. 19 ; 23 & 24 Vict. c. 38, s. 14; 
 
 Jurisdiction, 583. repealed by stat. 46 & 47 Vict. 
 
 {i) Frcwry v. Thad'cr, 3 Sw. c. 49; see ante, p. 98, n. {d). 
 
 529, 541, 544 ; Clarice v. Earl of (.r) Ante, pp. 99, 318. 
 Ormonde, Jac, lOS, 122—125 ; 
 
 M ISI 2
 
 532 OF PERSONAL ESTATE GENERALLY. 
 
 of 1873, the jurisdiction of the Court of Chancery was 
 
 transferred to the High Court of Justice, and the 
 
 administration of the estates of deceased persons was 
 
 No cause to assigned to the Chancery Division. It is enacted in 
 
 by injunction. ^^® ^^^^ -^^^ (•^) ^^^^ ^° ^^^^^^ ^^ proceeding at any 
 time pending in the High Court of Justice, or before 
 the Court of Appeal, shall be restrained by prohibition 
 or injunction ; but every matter of equity, on which an 
 injunction against the prosecution of any cause or pro- 
 ceeding might have been obtained, if the Act had not 
 passed, either unconditionally or on any terms or condi- 
 tions, may be relied on by way of defence thereto : pro- 
 vided always, that nothing in the Act contained shall 
 disable either of the said Courts from directing a stay 
 of proceedings in any cause or matter pending before it, 
 if it shall think fit ; and any person, whether a party or 
 not to any such cause or matter, who would have been 
 entitled, if the Act had not 2:)assed, to apply to any 
 Court to restrain the prosecution thereof, or who may 
 be entitled to enforce by attachment or otherwise any 
 judgment, decree, order or ride, contrary to which all 
 or any part of the proceedings in such cause or matter 
 may have been taken, shall be at liberty to apply to the 
 said Courts respectively, by motion in a summary way, 
 for a stay of proceedings in such cause or matter, either 
 generally or so far as may be necessary for the purposes 
 of justice ; and the Court shall thereupon make such 
 Transfer after order as shall be just. Under the Rules of the Supreme 
 tion order?" Court, 1883 (z), when an order has been made by any 
 judge of the Chancery Division for the administration of 
 the assets of any testator or intestate, the judge, in whose 
 Court such administration is pending, has power, with- 
 out further consent, to order the transfer to such judge 
 of any cause or matter pending in any other Court or 
 Division brought or continued by or against the execu- 
 
 (y) Stat. 36 & 37 Vict. c. 66, (.-) Ord. XLIX. r. 5. 
 
 8. 2i, axib-s. (o). 
 
 1
 
 OK A TVILL. 533 
 
 tors or administrators of the testator or intestate whose 
 assets are being so administered {a). Under the same Originating 
 rules {h), the executors or administrators of a deceased obtai^^doci- 
 persoD, or any of them, and any person claiming to be ^\^^ "^ t^° 
 interested in the relief sought as creditor, devisee, certain ques- 
 legatee, next of kin, or heir-at-law or customary heir of f^ admlnfif-'^'^ 
 a deceased person, or as claiming by assignment or tratiou. 
 otherwise under any such creditor or other person as 
 aforesaid, may take out, as of coiu'se, an originating 
 summons returnable in the chambers of a judge of the 
 Chancery Division, for such relief of the nature or kind 
 following, as may by the summons be specified and as 
 the circumstances may require (that is to say), the deter- 
 mination, without an administration of the estate, of 
 any of the following questions or matters : — 
 
 (a) Any question affecting the rights or interests of 
 the person claiming to be a creditor, devisee, legatee, 
 next of kin or heir-at-law : 
 
 (b) The ascertainment of any class of creditors, lega- 
 tees, devisees, next of kin, or others : 
 
 (c) The furnishing of any particular accounts by the 
 executors or administrators, and the vouching (when 
 necessary) of such accounts : 
 
 (d) The payment into Court of any money in the 
 hands of the executors or administrators : 
 
 (e) Directing the executors or administrators to do or 
 abstain from doing any particular act in their character 
 as such executors or administrators : 
 
 (f) The approval of any sale, purchase, compromise 
 or other transaction : 
 
 (g) The determination of any question arising in the 
 administration of the estate. 
 
 And any of the persons named in the last preceding 
 rule may in like manner apply for and oljtain an order 
 
 {a) As to the obtaining by an Danicll's Chancery Practice, 1913 
 executor of the stay or transfer et scq., Gth ed. 
 of proceedings againirt him, see (!>) Ord. LV. r. 3.
 
 534 
 
 OF PEHSONAL ESTATE GENEllALhY. 
 
 for th(3 administraticn of the personal estate of the 
 deceased, or of his real estate {c). But it is provided in 
 the same rules (rf) that it shall not be obligatory ou the 
 Court or a judge to pronounce or make a judgment or 
 order, wliether on summons or otherwise, for tlie admi- 
 nistration of the estate of any deceased person, if the 
 questions between the parties can be properly deter- 
 mined without such judgment or order. 
 
 Legacies. 
 
 Executor's 
 year. 
 
 Interest on 
 leffacies. 
 
 Legacy by 
 parent. 
 
 Liability of 
 executor. 
 
 When the debts have been paid, the legacies left by 
 the testator are then to be discharged. In order to give 
 the executor sufficient time to inform himself of the state 
 of the assets and to pay the debts of the deceased, he is 
 allowed a twelvemonth from the date of the death of the 
 testator before he is bound to pay legacies (r). From 
 this time all such general legacies as remain unpaid 
 caiTy interest, at the rate of four per cent, per annum (/) . 
 But if the legacy be given by a parent, or hy a person 
 ill loco pcorufis, to a legatee under the age of twenty-one 
 years, interest is given from the death of the testator for 
 the maintenance of the legatee, in the absence of any 
 other provision for that purpose (g). Notwithstanding 
 the lapse of a year from the testator's death, the execu- 
 tor, however, is still liable to any creditor of the deceased 
 to the amount of the assets which have come to the exe- 
 cutor's hands (/») ; and if he should have paid any legacies 
 in ignorance of the claims of the creditor, his only 
 remedy is to apply to the legatees to refund theii* lega- 
 cies, which they will bo bound to do, in order to satisfy 
 the debt {I). From this liability to creditors, an executor 
 
 (r) Ord. LV. r. 4. 
 
 (cI) Ord. LV. r. 10. 
 
 {c) Wood V. renoyre, 13 Ves. 
 333 ; Benson v. Maude, 6 Madd. 
 15. 
 
 (/) Wood V. Tenoyrc, iibi sup. 
 
 {g) Ilanrif v. Harvey, 2 P. 
 Wms. 21 ; Williams on Executors, 
 
 pt. 3, bk. 3, c. 4, s. 6. 
 
 (/() Norman v. Baldry, 6 Sim. 
 621 ; KnatcJibull v. Fearnhead, 3 
 My. & Cr. 122; Hill v. Gomme, 
 1 Beav. 510. 
 
 (0 March v. Bimcll, 3 My. & 
 Cr. 31.
 
 OF A WILL. 535 
 
 could not until recently have been discharged, unless lie 
 threw the property into Chancery, in which case the 
 Court undertook the administration, and the executor 
 was consequently exonerated from all risk (k) . But a Protection to 
 statute of the year 1859 exonerates an executor from all 
 liability to the rents and covenants of any leasehold or 
 other property liable to rents or covenants after an 
 assignment made by him to a purchaser, provided he 
 shall have set apart a sufficient fund to answer any 
 future claim in respect of any fixed and ascertained sum 
 agreed by the lessee or grantee to be laid out on the 
 property (/). And it is further provided in the same 
 Act, that, where an executor shall have given the like 
 notices as would have been given by the Com-t of Chan- 
 cery, in an administration suit, for creditors and others 
 to send in their claims against the estate of the testator, 
 the executor may distribute the assets amongst the 
 parties entitled thereto, without liability to any person 
 of whose claim he shall not have had notice at the 
 time of distribution {m) . The executor is of course Not liable 
 not answerable to the testator's creditors beyond the amount of 
 amount of assets which have come to his hands («), assets. 
 unless he should for sufficient consideration give a 
 written promise to pay personally (o), or should do any 
 act amounting to an admission that he has assets of the 
 testator sufficient for the payment of the debts {j)) . 
 
 (k) 3 Myl. & Cr. 126. notices, wliicli ought to be given, 
 
 {I) Stat. 22 & 23 Vict. c. 35, see Tfood v. IVcightman, L. E., 
 
 8S. 27, 28. This Act extends to 13 Eq. 434 ; Newton t. Sherry, 
 
 leases made before it passed ; 1 C. P. D. 246. 
 
 Smith V. Smith, 1 Drew. & Smale, («) Bac. Abr. tit. Executors 
 
 684 ; Re Green, 2 De Gex, F. & (P.), 1. 
 
 J. 121. (o) Stat. 29 Car. II. c. 3, s. 4 ; 
 
 (m) Stat. 22 & 23 Vict. c. 35, ante, p. 118; 1 Wms. Saund. 210, 
 
 s. 29 ; Ckfjgx. Rowland, V. C.-II. n. (1) ; 211, n. (2). 
 
 Law Rep. 3 Eq. 368 ; 36 L. J., {p) Rorsley v. Chaloner, 2 Ves, 
 
 N. S., Chan. 137. As to the sen. 83.
 
 536 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Exemption, 
 
 Legacy duty. On tlie payment or delivery of any legacy, whether 
 payable out of the estate of the testator, real or personal, 
 or out of any real or personal estate over which he had a 
 power of appointment (q) , a receipt must be given by 
 the legatee, which is chargeable with a duty, called the 
 legacy duty, on the amount or value of the legacy (r) . 
 But no sum of money, which by any marriage settle- 
 ment is subjected to any limited power of appointment 
 to or for the benefit of any person or persons therein 
 Specially named or described as the object or objects of 
 such power, or to or for the benefit of the issue of any 
 such person or persons, is liable to legacy duty under 
 the will in which such sum is appointed or apportioned 
 in exercise of such limited power (s). And it is now 
 provided that where the value of the whole of the per- 
 sonal estate of any person dying after the 24th of 
 March, 1880, does not amount to the sum of 100/., no 
 legacy duty shall be charged in respect thereof or of 
 any portion thereof {f). And in cases where a fixed 
 stamp duty of 30s. is paid on the affidavit made for 
 obtaining probate under the Customs and Inland Ee- 
 venue Act, 1881 (u), it is provided (x) that the payment 
 of the sum of 30.s. for the fixed duty on the affidavit in 
 conformity with this Act shall be deemed to be in full 
 satisfaction of any claim to legacy or succession duty in 
 respect of the estate or effects to which such affidavit 
 relates. By the same Act {//) legacy duty was imposed 
 on legacies of an amount or value of less than 20/., 
 which had previously been exempt from legacy duty (z). 
 The duties now payable on legacies are defined by 
 
 No legacy 
 duty when 
 whole per- 
 sonal estate 
 under 100/. 
 
 Residuary 
 bequests. 
 
 (-?) Stat. 8 & 9 Vict. c. 76, s. 4 ; 
 Attornoj-Gencral v. 3Iarquis of 
 Hertford, 3 Ex. Eep. 670. 
 
 (r)Stat. 36 Geo. III. c. 52, 
 s. 27. 
 
 (s) Stat. 8 & 9 Vict. c. 76, s. 4. 
 
 {t) Stat. 43 Vict. c. 14, s. 13. 
 \i') Stat. 44 Vict. c. 12, ss. 33— 
 35 ; ante, p. 522 and note {d). 
 (.r) Sect. 36. 
 Ill) Sect. 42. 
 (=) See Stat. 55 Geo. III. c. 184.
 
 OF A WILL. 537 
 
 stat. 55 Greo. III. c. 184 {a), which imposes the samo 
 duties upon bequests of the residue, or any share of the 
 residue, of a testator's personal or moveable estate, or 
 of monej's to arise from the sale, mortgage or other 
 disposition of any real or heritable estate directed to bo 
 sold, mortgaged or otherwise disposed of by any -will 
 or testamentary instrument {h) . Th6 amount of legacy Amount of 
 duty varies according to the degree of relationship which "*^" 
 the legatee bore to the deceased. Where the legacy 
 is to a child or lineal descendant, or to the father or 
 mother or any lineal ancestor of the deceased, the duty 
 charged is one per cent. But it is provided in the 
 Customs and Inland Revenue Act, 1881 (r), that, in 
 respect of any legacy, residue or share of residue pay- 
 able out of, or consisting of any estate or effects accord- 
 ing to the value whereof duty shall have been paid on 
 the affidavit in conformity with this Act (r/), the duty 
 at the rate of 1/. per cent, imposed by stat. 55 Geo. III. 
 c. 184, shall not be payable. So that in such cases no 
 legacy duty is now payable in respect of a bequest to a 
 child, parent or lineal descendant or ancestor. If the 
 legacy be given to a brother or sister, or any descendant 
 of a brother or sister, the duty is three per cent. If to a 
 brother or sister of the father or mother of tlie deceased, 
 or any descendant of sucli brother or sister, five per cent. 
 If to a brother or sister of a grandfather or grandmother 
 of the deceased, or any descendant of such brother or 
 sister, six per cent. And if the legacy be to any per- 
 son in any other degree of collateral consanguinity to 
 the deceased, or to any stranger in blood, the duty is 
 ten per cent. {e). But where any person chargeable 
 with legacy duty shall have been married to any wife 
 or husband of nearer consanguinity than himself or 
 
 [a) See sect. 2 and Schedule, (c) Stat. 44 Vict. c. 12. 
 
 Part III. {(l) Ante, pp. 521—523. 
 
 (J) See 2 Wms. Exors. 1628— [c] Stat. 55 Geo. III. c. 184. 
 1G31. Tthed.
 
 538 
 
 OF PERSONAL ESTATE GENEKALLY. 
 
 Leasehold 
 property. 
 
 herself to the deceased, the same rate of duty only is 
 payable as such his or her wife or hushand would 
 have been chargeable with if she or he had taken 
 the same (./'). And the husband or wife of the de- 
 ceased are exempt from all legacy duty, and so also 
 are the royal family. By the Succession Duty Act, 
 1853, leasehold property, although personal estate, is 
 exempted from legacy duty, and is charged in lieu 
 thereof with a succession duty, calculated upon the 
 same principles as the duty on real property {(j). 
 
 Legacy to ia- 
 faut or person 
 beyond seas. 
 
 Legacy duty 
 on annuities. 
 
 If a legacy be given to an infant, or to a person ab- 
 sent beyond the seas, the only way in which the executor 
 can obtain a proper discharge for such legacy is by pay- 
 ment of it, after deducting the legacy duty, into the 
 Bank of England, with the privity of the paymaster- 
 general {h), to be placed to the account of the person 
 for whose benefit the same shall be so paid. The money 
 is then laid out by the paymaster-general in the pur- 
 chase of Consols, which, with the dividends thereon, are 
 afterwards transferred and paid to the person entitled, 
 or otherwise applied for his benefit, on application to 
 the Chancery Division of the High Court of Justice by 
 petition or motion in a summary way (/). Such appli- 
 cations may be made by summons and disposed of in 
 chambers in all cases where the money or securities in 
 Court do not exceed 1,000/. or 1,000/. nominal value {j). 
 The legacy duty on annuities for lives is fixed by tables 
 given in the Succession Duty Act, and is payable by 
 four equal payments, to be made successively on com- 
 pleting each of the first four years' payments of the 
 
 \ 
 
 (/) Stat. 16 & 17 Vict. c. 51, 
 s. 11. 
 
 [g) Stat. 16 k 17 Vict. c. 51, 
 ss. 1, 19, 21. See Principles of 
 tlie Law of Eeal Property, 288, 
 ISth ed. ; 300, Hth ed. 
 
 {h) See stats. 35 & 36 Vict. c. 
 
 44 ; 46 & 47 Vict. c. 29. 
 
 ((■) Stat. 36 Geo. III. c. 62, 
 s. 32 ; Ex parte Bennett, V.-C. K. 
 B., 15 Jur. 213. 
 
 {j) Rules of the Supreme Court, 
 1883, Ord. LV. r. 2 (4) ; see Ord. 
 LIV. rr. 1, 2.
 
 OF A AVIIJ,. 539 
 
 annuity (A-). It is now provided tliat when an executor, pischaro-e of 
 administrator, or trustee shall have given notice in executor, &c. 
 writing to the Commissioners of Inland Kevenue for to duty on 
 any claim to legacy duty or succession duty in respect <li'*^ributioix 
 of any fund in his hands which he intends to distribute, 
 and shall have delivered to the Commissioners all par- 
 ticulars which they may require in order to ascertain 
 the existence and extent of any such claim, he shall be 
 at liberty to distribute the fund amongst the parties 
 entitled thereto, after satisfaction of any claims to duty 
 made by the Commissioners, and shall be entitled to 
 receive from them a certificate discharging him from 
 his liability to any duty in respect of the fund. But 
 such certificate shall not in any way afifect the liability 
 of any person other than the person in whose favour it 
 is expressed to be given (/). 
 
 A legacy may be either specific, demonstrative, or Specific 
 general. A specific legacy is a bequest of a specific ^"o^^^- 
 part of the testator's personal estate. Thus a bequest 
 of " the service of plate, which was presented to me on 
 such an occasion," is specific, and so also is a bequest of 
 " 100/. Consols, now standing in my name at the Bank of 
 England " (;;0, or of " 100/. Consols, part of my stock " (ii) . 
 A specific legacy must be paid or retained by the exe- Entitled to 
 cutor in preference to those which are general, and must P^'^^fe^^^ce. 
 not be sold for the payment of debts until the general 
 assets of the testator are exhausted (o) . It is, however. Ademption, 
 liable to ademption by the act of the testator in his life- 
 time. Thus, in the instances given above, if the testator 
 shoidd part with the plate, or sell the stock in his life- 
 
 {k) Stats. 16 & 17 Vict. c. 51, tleworth v. Greaves, 4 M. & Cr. 
 
 8. 31 ; 36 Geo. III. c. 52, s. 8. 35 ; Bothamhif v. Sherson, L. E., 
 
 {I) Stat. 43 Vict. c. 14, s. 12. 20 Eq. 304. 
 
 (;h) Roper on Legacies, c. 3 ; (o) Brown v. Allen, 1 Vcru. 31 ; 
 
 Gordon v. Duff, 28 Beav. 519. JLuiton v. /V«/.r, 1 P. Wms. 539 ; 
 
 (w) Kbbtjv.roKcr, ^Ycs.lbOa.; Skrch v. Thorington, 2 Vos. sen. 
 
 ILaijesY. Hayes, I Keen, 97; Shut- 560.
 
 540 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Demonstra- 
 tive legaey. 
 
 General 
 legacy. 
 
 time, tlie legacy will be adeemed, and the legatee will 
 lose all benefit (p). A demonstrative legacy is a gift by 
 will of a certain sum directed to bo paid out of a specific 
 fund. Tbus, " I bequeath to A. B. the sum of 50/. ster- 
 ling, to be paid out of the sum of 100/. Consols now 
 standing in my name at the Bank of England," is a 
 demonstrative legacy. Such a legacy is not liable to 
 ademption by the act of the testator in liis lifetime ; 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 lifetime, the 50/. will still be payable 
 to the legatee out of the general assets (q). A demon- 
 strative 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, liable to abatement with the general lega- 
 cies (r) . A general legacy is one payable only out of the 
 general assets of the testator, and is liable to abatement 
 in case of a deficiency of such assets to pay the testator's 
 debts and other legacies. A bequest to A. of 100/. ster- 
 ling is a general legacy ; so is a bec[uest of 100/. Consols, 
 without referring to any particular stock to which the 
 testator may be entitled (.s). A bequest of a mourning 
 ring, of the value of 10/., is also a general legacy, no 
 specific ring of the testator's being referred to (/) . In 
 the two last cases, the executor would be boimd to set 
 apart or buy the stock, or purchase the ring, for the 
 legatee out of the general assets of the testator, sup- 
 
 (p) Ashlurner v. M'Guire, 2 
 Bro. C. C. 108; Karrisonx.Jac/:- 
 son, L. R., 7 Ch. D. 339. 
 
 {q) Eoberts v. Fococh, 4 Ves. 
 150 ; 4-tiu-aier v. Attwater, 18 
 Beav. 330. 
 
 ()•) Acton V. Acton, 1 Meriv. 
 
 178 ; Livesay v. Mcdfcrn, 2 T. & 
 C. 90. 
 
 («) Wilson v. Broicnsmith, 9 
 Ves. 180. See, however, Towns- 
 end \. Martin, 7 Hare, 471. 
 
 {t) 1 Koper on Legacies, c. 3, 
 s. 2.
 
 OF A AVILL. 541 
 
 posing tliem sufficient for the purpose ; and should there 
 be a deficiency, the amount of the stock, or the vahie of 
 the ring to he purchased, would abate proportionably. 
 If, however, any legacy should be given for a valuable Legacy for 
 consideration, it will not be liable to abatement with the gidCTation '^^" 
 other general legacies. An example of this exception Dower, 
 to the usual rule occurs in the case of legacies given by 
 husbands to their wives in consideration of their releas- 
 ing their dower {k) . And by the Act for the Amendment 
 of the Law relating to Dower {x), it is provided {//), that 
 nothing therein contained shall interfere with any rule 
 of equity or of any ecclesiastical Court, by which legacies 
 bequeathed to widows in satisfaction of dower are en- 
 titled to priority over other legacies. 
 
 When a legacy is bequeathed by a testator to his Satisfaction 
 creditor, it is considered to be a satisfaction of the debt, I'eo-ades. ^ 
 if the legacy be equal to or greater than the amount of 
 the debt (s). But if it be less than the debt («), or pay- 
 able at a different time (b), or of a different nature from 
 the debt (c), or if the debt be contracted subsequently 
 to the date of the will {d), or if the will contain an ex- 
 press direction for payment of debts and legacies {e), 
 the legacy will not be a satisfaction. The leaning of 
 the Com'ts is against the doctrine of the satisfaction of 
 debts by legacies, a doctrine which seems to have been 
 
 (?<) Burriclge v. liradyl, 1 P. («) Graham v. Graham, 1 Vcs. 
 
 Wms. 127 ; Korcott v. Gordon, 14 Ben. 262. 
 
 Sim. 258. [b) XichoUs v. Jmhon, 2 Atk, 
 
 [x) Stat. 3 & 4 Will. IV. c. 300 ; Bales v. Barrall, 3 Beav. 
 
 105. 324. 
 
 (y) Sect. 12; Roper v. Roper, (p) AlleynY. Allcyn, 2 Vcs. sen. 
 
 V.-C. M., 3 Ch. D. 714. 37; Barilctt v. Gillard, 3 Russ. 
 
 {z) Fowler \. Fowler, 3 P. Wms. 149 ; Fonrdrin v. Goicdei/, 3 M. & 
 
 353 ; Fourdrln v. Goicdey, 3 M. & K. 383, 409. 
 
 K. 383, 409 ; 2 Eoper on Lcga- {d) Cranmcr's case, 2 Salk. 5C8. 
 
 cies, c. 17, s. 1 ; Edmonds v. Low, [e] Richardson v. Grccse,-2 Atk. 
 
 3 Kay & J. 318. 05 ; Ilassell v. JLawkins, 4 Drew. 
 
 468.
 
 5 12 OF PERSONAL ESTATE GENERALLY. 
 
 Suti.sfactioii of establislied on rather questionable grounds. When, 
 poi ions. however, a sum of money is due to a child by way of 
 
 jjortion, the inclination 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 (/). 
 A bequest of the residue, or of a share in the residue, of 
 the testator's estate, will also be considered as a satis- 
 faction pro tanto {g). The presumption of satisfaction 
 is indeed so strong, that it is difficult to say what cir- 
 cumstances of variation between the portion and the 
 legacy will be sufficient to entitle the child to both [li). 
 Parol evidence of the intention of the testator is, how- 
 ever, admissible to rebut this presumption (/). 
 
 Statute of By a statute of Greorge the Second, commonly called 
 
 the Mortmain Act (/.), no hereditaments, nor any money, 
 stock in the public funds, or other personal estate what- 
 soever to be laid out in the purchase of hereditaments, 
 can be conveyed or settled for any charitable uses (with 
 a few exceptions), otherwise than by deed, with certain 
 formalities mentioned in the Act [1). And all gifts of 
 hereditaments, or of any estate or interest therein, or of 
 any charge or incumbrance affecting or to affect any 
 hereditaments, or of any personal estate to be laid out 
 in the purchase of any hereditaments, or of any estate 
 or interest therein, or of any charge or incumbrance 
 
 (/) HinohcUffe v. mnchcUffe, 3 149 ; 2 De Gex, J. & S. 336 ; re- 
 
 Ves. 516 ; Weall v. Eiee, 2 Euss. versed, Law Rep., 2 H. of Lords, 
 
 &Myl. 251. 71. 
 
 {(j) Riclcmany. Morgan, 2'B.C. {h) See Mc Tussaud^s Hsiate, 9 
 
 C. 394 ; Harl of Glengall v. Bar- Ch. D. 363. 
 
 nard, 1 Keen, 769; affirmed, 2 H. (/) S. C, 9 Ch. D. 372—375. 
 
 of L. Cas. 131; Bccldon v. Barton, (/.) Stat. 9 Geo. II. c. 36, s. 1. 
 
 27 Bfiov. 99, 106 ; Montefiore v. \l) See Principles of the Law 
 
 Gifcdalla, 1 De Gex, F. & J. 93 ; of Eeal Property, p. 69, 13th ed. ; 
 
 Coventry x.Chkhestcr, 211. k'Miil. 71, 14th ed.
 
 OF A AVTTJ,. 543 
 
 affecting or to aiToct the same, to or in trust for any 
 eliaritablo uses whatsoever, are rendered void if made 
 in any other form than by the Act is directed {ni) . This Bequest to 
 has been very strictly construed, and has been held to ^ ^'^" ^'^^' 
 prohibit the bequest for charitable purposes of personal 
 estate in any degree savouring, as it is said, of the 
 realty. Tlius, it has been decided that money secured 
 on mortgage of real estate {»), shares in a canal navi- 
 gation (o), and leasehold estates {p), cannot be left by 
 will for any charitable purpose. But more recently, the 
 strictness of the Courts appears to have relaxed ; and it 
 has lately been held that money secured by a policy of 
 assurance, although the company may invest their funds 
 in real estates (q), and shares in a banking company 
 authorized to invest money on mortgage of real 
 estates (r), or in a mining company (s), or in a land 
 company (/'), are not within the statute. So it has 
 been held that accrued rents of real estate are unaffected 
 by the Act {n). And railway scrip (.r), and shares in gas 
 companies (//), docks, railways, and canals (s), although 
 such shares may not bo expressly declared by the Acts 
 establishing the undertakings to be personal estate, are 
 now held to be unaffected by the statute. But the inte- 
 
 («0 Stat. 9 Geo. II. c. 36, b. 3. 4 Eq. 272. 
 
 {n) Attor)ic>/-Gcnen(lY.A[ei/ricl; {u) Edwards y. HnJl, 6 Do Gex 
 
 2 Vcs. sen. 44. M. & G-. 74 ; ThonuiH v. HowcU, 
 
 (o) Ilotvse V. Chapman, 4 Ves. L. E., 18 Eq. 198. 
 542. {x) Ashton v. Lord Laiujdale, 
 
 {p) Attorney-General v. Graves, ubi supra. 
 Amb. 155. {'j) Thompson v. Thompson, 1 
 
 {q) March v. Attorney -General, Coll. 381 ; Sparling v. Parker, 9 
 
 5 Beav. 433. Beav. 450. 
 
 (r) Ashton v. Lord Langdale, 4 {z) Hilton v. Giraud, 1 Da Gex 
 De Gex & Smale, 402 ; S. C. 15 & Smalc, 183 ; Sparling y. Parker, 
 Jut. 8G8 ; Myers y. Pcrigal, 2 Do ubi supra; Walker v. Milne, 11 
 Gex, Mac. & Gord. 599. Boav. 507 ; Ashton y. Lord Lang- 
 is) Hayter v. Tucker, 4 Kay & dale, ubi supra ; Edwards v. llaU, 
 J. 243. Sec Morris v. Glynn, 27 G Dc Gex, M. & G. 74 ; Linlcy v. 
 Beav. 218. Taylor, 1 GiflP. 67 ; affirmed, 2 De 
 
 {t) Entwistle v. Davis, L. E. Gex, F. & J. 84.
 
 544 OF PERSONAL ESTATE GENERALLY. 
 
 rest of a member of an ordinary private partnership in 
 real estate, part of the assets of the partnership, has been 
 held to come within the words of the Act {a) . There 
 have been conflicting decisions as to whether debentures, 
 by which railways and other undertakings, with their 
 rates and tolls are mortgaged, are within the Mortmain 
 Act {b). But the Coui't of Appeal in a recent case (<?) 
 expressed a decided opinion that a debenture issued by 
 a railway company established by Act of Parliament 
 was not within the statute, on the ground that it had 
 been decided that such a security did not pass to the 
 holder the soil of any lands held by the company, or a 
 right to take such lands or to interfere in the manage- 
 ment of the undertaking. The true test appears to be 
 whether the charge upon the undertaking with its rates 
 and tolls is a charge upon the land itself held for the 
 purposes of the undertaking, giving the holder power to 
 resort to the land in order to enforce his security, or 
 whether it is a mere charge upon the profits of the un- 
 dertaking {(I). With regard to the bequest of money to 
 be laid out in the purchase of hereditaments, it has been 
 decided that a bequest of money to be laid out in build- 
 ing on land already in mortmain is good (e) ; but if some 
 land already in mortmain be not distinctly referred to, 
 a bequest of money for building for any charitable pm'- 
 pose will be void, as implying a direction for the pur- 
 chase of land on which to build (/). And it has also 
 
 («) Ashtvorth v. Munn, 15 Ch. also Jervis v. Lawrence, 22 Ch. D. 
 
 D. 363. 202. 
 
 (h) Walker v. ililne, 11 Beav. {e) Ghchb v. Attorney -General, 
 
 507; Ashton t. Lord Langctale, 4 Amb. 373; ChampnetjY. Davy, 11 
 
 De G. & Sm. 402 ; Holdsworth v. Ch. D. 949. 
 
 Davenjjort, 3 Ch. D. 185 ; Chandler (/) Fritchard v. Arbouin, 3 
 
 V. Howell, 4 Ch. D. 651; Ln re Russ. 456; Smith v. Oliver, 11 
 
 IlitcheWs Estate, 6 Ch. D. 655. Beav. 481 ; Ln re Watmough'' s 
 
 (f) Attree v. Eaive, 9 Ch. D. Trusts, V.-C. M., Law Rep., 8 
 
 337. Eq. 272 ; Pratt v. Harvey, L. R., 
 
 {d) Attree v. Hawe, ubi sup. ; 12 Eq. 544 ; Ln re Cox, 7 Ch, D. 
 
 Re Harris, 15 Ch. D. 5G1. See 204.
 
 01' A WILL. 515 
 
 been held that a gift is void which tends directly to bring 
 fresh lands into mortmain, as a gift of money to a charity 
 on condition that other persons provide the land {(j) . 
 This however has been overruled {li) . When a legacy is 
 plainly devoted to charity, and is clear of the statute of 
 mortmain, but cannot or cannot immediately bo devoted 
 to the specific charity intended, the Court will give effect 
 to it c>/-2)res or as nearly as possible (/). And if the 
 purchase of land be not involved in the gift, there is 
 no law which prevents the bequest of purely personal 
 property to any amount for charitable purposes. A 
 bequest to a charity ought, therefore, to be directed to 
 be paid out of such part of the testator's personal estate 
 as he may lawfully bequeath for such a purpose. For 
 if this precaution should be neglected, the charitable 
 legacies will fail in the proportion which the personal 
 assets sa,vouring of the realty may bear to those which 
 are purely personal (A-) . 
 
 Other bequests which require some care are those to Gifts to illo- 
 illegitimate children. It is clear that a bequest to the f^jj^en 
 f utui'e illegitimate children of a particular man is void, 
 as the Comts cannot enter into the inquiry which would 
 be necessary to identify such children (/) . A child prima 
 facie means a legitimate child ; a bastard is considered 
 by the laws as nuUliis fiUus. Accordingly an illegiti- 
 mate child can never take under a gift to children, unless 
 
 (r/) Attorney - Geuf r al Y. Davles, (A) Attorney-General v. Tyn- 
 
 9 Vcs. 535; Mather v. Scott, 2 dall, 2 Eden, 207; S. C, 2 Arab. 
 
 Keen, 172 ; Tryc v. Corporation of CM; Ilobson v. Blackburn, 1 Keen, 
 
 Gloucester, 14 Beav. 173. 273; FhUanihropicSociety\.Kemp, 
 
 {h) Fhilpott V. St. George's Hos- 4 Beav. 581 ; and see Robinson v. 
 
 pital, 6 H. of L. Cas. 338. Gddard, 3 Mac. & Gord. 735 ; 
 
 {%) Sinnett v. Herbert, L. E., Tempest v. lemjiest, 7 Do Gex, 
 
 7 Ch. 232 ; Chamberlayne v. Broc- Mac. & Gord. 470 ; Beaumont v. 
 
 kett,lj.'R., SCh. 20G; Littlcdalc OUvcira, LL.J., Law Rep., 4 
 
 V. Bichcrsteih, V.-C. H., 24 W. Chan. 309. 
 
 R. 507 ; 1 Jarra. Wills, 243 et seq. (/) Wilkinson v. Adam, 1 Ves. 
 
 4th ed. & Bcamcs, 4CG. 
 
 W.P.P. N N
 
 •546 OF PERSONAL ESTATE GENERALLY. 
 
 it 1)0 clear, upon the terms of the will, or uccording to 
 the state of facts at the making- of it, that legitimate 
 children never could have taken (;;?). An illegitimate 
 child may, liowever, take under any gift in which ho 
 is sufficiently identified as the object of the testator's 
 bounty. Thus, a bequest to tlie child of which a woman 
 is now pregnant is good {ii). And if illegitimate chil- 
 dren 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 then* reputation as such (o) . Under 
 such a bequest, it has been held that an illegitimate 
 child oi ventre sa mere at the date of the will Q;), al- 
 though not born till after the testator's death (q), can 
 take, as well as children by reputation actually born at 
 the date of the will. And, according to the latest 
 authority, 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 (r) . But 
 it has been decided that an illegitimate child, both be- 
 gotten and born after the death of the testator, cannot 
 
 (m) CartwrightY. Vawdrij, 5 Ves. & B. 422 ; GiU\. Shelley, 2 Euss. 
 
 530 ; Godfrey v. Davis, QiYes. 43 ; & My. 336 ; Meredith v. Farr, 2 
 
 Harris v. Llotjd, 1 T. & Russ. You. & Coll. 525 ; Crook v. Hill, 
 
 310; Bagley v. Mollard, 1 Euss. LL.J., LawEep., 6 Ch. Ap. 311; 
 
 & M. 581 ; Dover v. Alexander, affirmed, Bill v. Crool; L.E., 6 
 
 2 Hare, 275; Re OverhiW s Trust, H. of L. 265; Lepine v. Bean, 
 
 1 Sm. & Giff. 362; Paul v. Chil- M. E., Law Eep., 10 Eq. 160; 
 
 dreii, M. E., Law Eep., 12 Eq. Re Humphries, Smith v. MiUidgc, 
 
 16; Dorin v. Dorin, L. E., 7 H. 24 Ch. D. 691. 
 of L., E. & L 568; Ellis v. (p) Occleston v. Fiillalove,!,. It., 
 
 Hoitstoun, 10 Ch. D. 236. 9 Ch. 147. 
 
 («) Gordon v. Gordon, 1 Meriv. (j) Crook v. Hill, 3 Ch. D. 773. 
 
 141. (>•) Occlcsion v. Fullalove, ubi 
 
 (o) Wilkinson v. Adam, 1 Ves. suj).
 
 OF A WILL. 547 
 
 share in siicli a Loquest, becaiiso to hold otherwise would 
 be to encourage immorality (.s) . 
 
 After payment of the testator's debts and legacies, Tlifrlits of 
 the residue of his personal estate must be paid over to [crater ^ 
 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 will 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 (/) . 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 Lapwo. 
 by the deatli 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 (u) ; for these 
 words are merely inserted in analogy to the limitation 
 of real estate to a man and his heirs. If a bequest be Joint teuauts. 
 made to two or more as joint tenants, and one of them 
 die in the lifetime of the testator, his share will not 
 lapse, but will survive to the others (.r). But if the Tenants in 
 bequest be to two or more in common, and one of them °°™^°"- 
 die in the testator's lifetime, his share will lapse (//) ; 
 unless the bequest be made to a class, as to the children Bequest to a 
 of A. in equal shares, in which case all who answer that ^^^^^' 
 
 (*) Crook V. mi/, 3 Ch. D. (.*) Morki/ v. Bird, 3 Vcs. G2S, 
 
 773. G31. 
 
 (0 Stat. 7 WiU. IV. & 1 Vict. (y) Harwell v. Dry, 1 T. Wm.s. 
 
 c. 26, 8. 24. 700 ; Tage v. Fage, 2 P. Wnis. 
 
 (m) Elliott V. Barcvpcrt, 1 V. 489 ; Barber v. Barber, 3 My. & 
 
 Wms. 83. Craig, 688 ; Bahi v. Lcxcher, 1 1 
 
 Sim. 397.
 
 cliildren. 
 
 548 OF PERSONAL ESTATE GENERALLY. 
 
 description at tlie testator's decease (s) , and also (if tlie 
 period of distribution he postponed by the will) all who 
 come into being before such period (r/), will be entitled 
 Legacies to to divide the bequest amongst them. It is, however, 
 provided by the recent Act for the amendment of the 
 laws with respect to wills, that where any person, being 
 a child or other issue of the testator, to whom any per- 
 sonal 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 living 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 {b) . The effect of this provision 
 is cmious. If the legatee had died immediately after 
 the testator, leaving 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 (c). This provision has been held to apply 
 to a testamentary appointment under a general power 
 of appointment {d), but to be inapplicable to a testa- 
 mentary appointment under a power to appoint amongst 
 the testator's children {c) ; and it does not extend to 
 gifts to children or issue as a class, and not indi- 
 vidually (/). 
 
 (z) Viner v. Francis, 2 Cox, Law Rep., 4 Ex. 27. 
 
 190; 2 Jarm. Wills, 155, 4th ed. ; (d) Ecclcs v. Cheync, 2 Kay & 
 
 Lee V. Fai7i, 4 Hare, 250. J. 676. 
 
 {a) Aytonv.Ayton,\Co-si,'i21; (?) Griffiths v. Gale, 12 Sim. 
 
 2 Jarm. Wills, 156, 4tli ed. 354 ; Frcelaml v. Fearsoti, M. R., 
 
 (/>) Stat. 7 Will. IV. & 1 Vict. 36 L. J., N. S. Chan. 374 ; L. R., 
 
 c. 26, s. 33. 3 Eq. 658. 
 
 (t) Johnson v. Johnson, 3 Hare, (/) Browne v. Hammond, John- 
 
 157. Probate duty attaches; pon, 210. 
 Ferry\s executors v. The Queen,
 
 OF A WILL. 549 
 
 If there were no residuary legatee, tlie residue of the Former right 
 testator's personal estate, after payment of debts and tho^residuo ° 
 legacies, formerly belonged to the executor for his own 
 benefit, unless a contrary intention appeared from his 
 being left executor in trust {(j), or from his having a 
 legacy left him for his trouble (//), or from other cir- 
 cumstances (/). But by a modern statute (/.•), it is Modem 
 enacted, that when any person shall die, having by will ^ ^ ^ '^• 
 or codicil appointed any executor, such executor shall 
 be deemed by Com-ts 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, in respect of 
 any residue not expressly disposed of, unless it shall 
 appear by the will or any codicil thereto (/), that the 
 person so apjiointcd executor was intended to take such 
 residue beneficially. The Statute of Distributions is 
 that under which the personal estate of any one dying 
 intestate is distributed between his widow and next of 
 kin. An account of this statute will be found in the 
 next chapter. 
 
 {(j) rrlnj V. rring, 2 Vera. 99; (/.•) Stat. 11 Geo. IV. & ] Will. 
 
 Bagwell v. Dry, 1 P. Wms. 700. IV. c. 40. 
 
 {//) Eachjiehl v. Careless, 2 V. (l) love v. Gaze, 8 Beav. 472 ; 
 
 Wms. 158. JIarrison v. Ilarriaoii, 2 II. & M. 
 
 (i) Mullen v. Bowman, 1 Coll. 237. 
 197.
 
 550 
 
 OF PERSON AT, ESTATE GENERALLY. 
 
 CHAPTEU IV. 
 
 OF INTESTACY. 
 
 Jm-isdiction TiiE Ecclesiastical Courts until receutly had jm-isdiction 
 tical^Courts" ^ot Only over the -wills of testators, hut also over the 
 over goods of goods of persons dying intestate. Tliis jurisdiction, 
 sonp. though of long standing, appears to have heen at 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 be- 
 queathing to his lord his heriot, in the next place to 
 remember the church (a). If, however, a man should 
 have died intestate, without opportunity of making this 
 provision, the distribution of his goods devolved on the 
 church, together with his friends, the lord first having 
 taken his heriot (b). 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 
 Pious uses. church in pios usus. This application to pious uses 
 appears to have been as foUows : in the first place, 
 the bequest, which it was to be presumed the intestate 
 w^ould 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 parents and their relatives. That this was the case 
 appears from the complaints which were made by the 
 clergy of those days, of the interference of the tem- 
 poral lords in cases of intestacy, whereby the distri- 
 
 {(i) Glanville, lib. 7, c. 5 ; Bract. 
 GO a ; Flcta, lib. 2, c. 57. 
 
 {b) Bract. GO b ; Fleta, ubi 
 supra.
 
 OF IN'TKST ACY. 551 
 
 bution of tho 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 
 intestate's portion to themselves, making no distribu- 
 tion, or at least an imduo one, amongst the creditors 
 and relatives of the deceased (r/) ; 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 {r), 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 
 Avould 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. 
 
 The duty of administering intestate's effects was not, Adminis- 
 as may be supposed, usually performed by the bishops *^"''^*^°^- 
 in person. For this purpose they usually appointed an 
 administrator ; but, as personal property rose in import- 
 ance, it became desirable that this administrator should 
 not be considered as the mere agent of the bishop, but 
 should himself have a iocus standi, in the king's Courts. 
 It was accordingly enacted by a statute of the reign of 
 Edward III. (r/), that where a man died intestate the 
 
 {(■) Matthew Paris, 051, Addi- 474. Sco also Di//iC v. Walford, 
 
 tamenta, 201, 201, 209(Wats'sed. TiTvy Council, 12 Jurist, 839; 6 
 
 London, 1040) ; Constitutions of Moore, P. C. Cas. 434. 
 
 Boniface, Constitutiones Provin- {(I) Flcta, lib. 2, c. 57. 
 
 ciales, 20, at the end of Lyndc- [c) Stat. 13 Edw. I. c. 19. 
 
 wood's Provincialo (Oxon. 1679), (/) 1 Ro. Ahr. 90G; Bac. Abr, 
 
 recited also in a Constitution tit. Executors and Administrators 
 
 of Archbishop Stratford (Lynd. (E). 
 
 Prov. lib. 3, tit. 13). ' See Gent. {(j) 31 Edw. III. c. 11, 
 Mag. New Series, vol. ii. 355,
 
 552 OF PERSONAL ESTATE GENEllALLY. 
 
 ordinaries sliould depute tlie 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 admi- 
 nister 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), 
 administration 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 («) ; and a joint grant was seldom 
 made, so seldom, indeed, that the powers of co-admi- 
 nistrators appear to be still a matter of doubt (,/ ). In 
 granting administration to the next of kin, the Ecclesi- 
 astical Com'ts were guided by the right to the property 
 to be administered (A-) . This right will be hereafter 
 explain''ed. 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 imtil 
 representation were made to the deceased (/) ; and, for 
 want of creditors, administration might be granted to 
 Court of any person at the discretion of the Court (;;?) . But the 
 
 1857. ' Court of Probate Act, 1857 («), abolished the whole of 
 
 the jiuisdiction 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, Divorce and Admi- 
 ralty Division of the High Court of Justice in the same 
 
 (h) 21 Hen. VIII. c. 5. (l) TFcbb v. Keedham, I Add&ms, 
 
 (() TFel)b\. Xecd/i am, I Addaras, 491. See Coomlis v. Coombs, haw 
 
 491. Hep., 1 Probate, 288. 
 
 (,/ ) Shop. Touch. 485, 486 ; (»;) Williams on Executors, pt. 
 
 Williams on Executors, pt. 3, 1, bk. 5, ch. 2, s. 1. 
 
 bk. 1, ch. 2. («) Stat. 20 & 21 Vict. c. 77, 
 
 (k) In the goods of Gill, I'B.agg. amended by stat. 21 & 22 Vict. 
 
 342. c. 96.
 
 OF INTESTACY. 553 
 
 manner as tlie probate of wills (o). And after tlie 
 decease of any person intestate, his personal estate 
 vested in tlie 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 (p). It is not easy to 
 say what person has been substituted for the judge of 
 the Court of Probate in this respect by the Judicature 
 Act of 1873 ((/). By recent statutes (r) facilities have Poor iutcs- 
 beon given to the widows and children of deceased in- 
 testates, and to the children of intestate widows, whose 
 whole estate and effects shall not exceed in value the 
 sum of 100/., for taking out letters of administration to 
 their effects, by application to the registrar of the County 
 Court, within the district of which the intestate had his 
 or her fixed place of abode at his or her death. 
 
 The administrator, when appointed, has the same Eiglits and 
 right to and power over all the personal estate of the miaSruton " 
 intestate as his executors would have had if he had 
 made a will {s) ; and this right and power relate back to 
 the time of the intestate's decease (t). The same duty 
 also devolves upon the administrator of paying the 
 funeral and testamentary expenses and debts in the 
 fu'st place {i(). The provisions of the recent enactments 
 for protection of executors in distributing the assets of 
 their testator extend also to the administrator of the 
 effects of an intestate (v). And an administrator has 
 
 (o) Ante, p. 517. (0 TJiarpe v. Stalhvood, 5 Man. 
 
 \p) Stat. 21 & 22 Vict. c. 95, & Gran. 700 ; Foster v. Bates, 12 
 
 s. 19. M. & W. 226 ; Wclchman v. 
 
 {q) See stats. 36 & 37 Vict. Sturgis, 13 Q. B. 552. 
 
 c. 66, ss. 11, 12, 16, 31, 34; («) See rtr«<e, pp. 528, 529. 
 
 Finney v. mint, 6 Ch. D. 98. {v) Stat. 22 & 23 Vict. c. 35, 
 
 if) Stats. 30 & 37 Vict. c. 52 ; ss. 27, 28, 29, ante, p. 535 ; but 
 
 38 & 39 Vict. c. 27. not stat. 41 & 45 Vict. c. 41, 
 
 {s) Williams on Executors, pt. s. 37, ante, p. 530. 
 2, bk. 1, ch. 1 ; ante, pp. 612, 528.
 
 £51 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Administra- 
 tor's year. 
 
 the same right as an executor to apply to the Court for 
 its assistance in administering the estate or in deter- 
 mining any question, which may arise in the course of 
 administration («•). An administrator also had the same 
 privilege as an executor of retaining his own deht in 
 preference to all others of the same degree (x). But 
 after payment of the debts, the surplus of the intestate's 
 estate must he distributed by the administrator amongst 
 the persons who may be entitled thereto imder the 
 Statutes of Distribution to be hereafter mentioned. In 
 order 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 of 
 the decease as is allowed to an executor is also given to 
 the administrator before he can be required to make 
 any distribution (y). 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 Avithin a twelve- 
 month after the decease of the intestate, the share of 
 the person so dying will pass to his own executors or 
 administrators (;:) . 
 
 Limited ad- 
 ministration : 
 
 durante mi- 
 nora retate ; 
 
 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 admi- 
 nistration durante minore aiatc, when the sole executor 
 named in a will is under age [a) ; and the same sort of 
 administration is granted on intestacy, in case of the 
 minority of the next of kin [b) . So if the executor or 
 next of kin, as the case may be, should be out of the 
 
 (if) See ante, pp. 530 — 534. 
 
 [x) Warner v. Wainsford, Hob. 
 127 ; Williams on Executors, pt.' 
 3, bk. 2, ch. 2, s. 6 ; see ante, 
 p. 516. 
 
 [y) Stat. 22 k 23 Car. II. c. 10, 
 
 {z) Edwards v. Freeman, 2 P. 
 Wms. 442. 
 
 {a) Ante, p. 513. 
 
 {h) Williams on Executors, pt. 
 1, bk. 5, cb. 3, s. 3.
 
 OF INTESTACY. 555 
 
 realm at the time of the decease of tlio testator or Intes- 
 tate, the Court will grant a limited administration 
 durante absentia, which will expire the moment of the durante ab- 
 retui'n of such executor or next of kin. And if the ^^^ ^'^ ' 
 executor should prove the will, or if any person should 
 ohtain letters of administration, and afterwards go to 
 reside out of the jurisdiction of the English Courts, the 
 Court is empowered by Act of Parliament (c) to grant 
 administration, at the end of the year from the death 
 of the testator or intestate. Again, when a suit con- peudentc lite ; 
 cerning the right of administration is pending in the 
 Probate, Divorce and Admiralty Division of the Iligli 
 Court, the Court may appoint an administrator 7;(?»f/'f';^i'r 
 ///(', who will have all the rights and powers of a general 
 administrator, other than the right of distributing the 
 residue of the personal estate {d) ; and the adminis- 
 trator so appointed may receive such reasonable remu- 
 neration for his trouble as the Court may think fit (e) . 
 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 (/). So if a will should have cum testa - 
 been made, but the executors should have renounced, or uexo.° 
 died before theii' testator, the Court will appoint the 
 person having the greatest interest in the effects, gene- 
 rally the residuary legatee, to administer the same ac- 
 cording to the directions of the will, in which case the 
 administration granted is termed an administration cam 
 tcstaniento aniie.ro, with the will annexed (^). And it 
 is now provided, that, if by reason of the insolvency of 
 the estate of the deceased, or other special circumstances, 
 
 (c) Stat. 38 Geo. III. c. 87, ss. s. 16. 
 1—5, extended by stats. 20 & 21 {e) Sect. 72. 
 
 Vict. c. 77, s. 71 ; 21 & 22 Vict. (/) Sect. 71. 
 
 c. 95, s. 18. C'/) Williams on Executors, pt. 
 
 {d) Stat. 20 & 21 Vict. c. 77, 1, bk. 5, cb. 3, s. 1. 
 8. 70 ; see stat. 36 & 37 Vict. c. 6C,
 
 556 
 
 OF PEllSONAL ESTATE GEJJERALLY. 
 
 the Coiu't sliall think it necessary or convenient to ap- 
 point 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 {/i). 
 
 Stamp duty 
 on admiuis- 
 tratious. 
 
 Exemptions. 
 
 An account has been previously given of the stamp 
 duty imposed formerly on letters of administration, but 
 now on the affidavit required to be made by the person 
 applying for letters of administration (/). The duty on 
 letters of administration, where there was no will, was 
 formerly after a higher rate than the duty on probates, 
 or on letters of administration with the will annexed {k). 
 But by the Act now in force the duties are the same (/). 
 A heavy penalty is imposed by statute on any person 
 who shall take possession of, or in any manner ad- 
 minister, any part of the personal estate of any deceased 
 person, without obtaining probate or administration 
 within six calendar months after his or her decease, or 
 within two calendar months after the determination of 
 any suit or dispute respecting the will or the right to 
 administration {i)i). The same exemptions from duty 
 in favour of seamen, marines, and soldiers, which have 
 been established with respect to the probate duty (»), 
 apply also to the duty on administration. 
 
 Office of ad- 
 ministrator is 
 not trans- 
 missible. 
 
 The office of administrator is not transmissible, like 
 the office of executor. On the decease of an adminis- 
 trator, before he has distributed all the effects of the 
 intestate, a new administrator must be appointed; for 
 
 (A) Stat. 20 & 21 Vict. c. 77, 
 8. 73 ; In the Goods of Llantvarne, 
 Law Rep., 1 Probate, 306 ; In the 
 Goods of Fraser, Law Rep., 1 Pro- 
 bate, 327 ; In the Goods of Wenslc!/, 
 7 P. D. 13. 
 
 (i) Ante, pp. 521—528. 
 
 (k) Stat. 55 Geo. III. c. 184. 
 
 {!) Stat. 44 Vict. c. 12, s. 27 ; 
 ante, pp. 521, 522 and n. (d). The 
 duties were assimilated by stat. 43 
 Vict. c. 14, ante, p. 521. 
 
 (m) 1001. , and ten per cent, on 
 the stamp duty. Stat. 55 Geo. 
 III. c. 184, s. 37. 
 
 (w) Ante, pp. 525, 526.
 
 OF INTESTACY. 557 
 
 tho administrator or oxoeutor of sucli administrator has 
 no right to intermeddle. So if an executor should die 
 intestate, ^vithout having completely distributed his 
 testator's effects, an administrator must be appointed 
 to distribute, according to tho will of the testator, such 
 of his effects as were not distributed by the deceased 
 executor (o). In each of these cases the administration Administra- 
 granted is called an administration de bonk non adininis- ^]'^^"' ^'"* 
 i rails:, of the goods not administered, or, more shortly, 
 dc boiii-'i no)i {})). All second and subsequent grants of 
 probate or letters of administration 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 adminis- 
 tration has been made, or to which it may have been 
 transmitted {q). 
 
 The application of an intestate's effects, after payment Statutes of 
 of his debts, is now regulated by statutes of the reign ^^ " ^ ^°°' 
 of Charles II. and James II. (r), commonly called the 
 Statutes of Distribution, by which statutes the rights of 
 the relations of the deceased appear to have been first 
 definitely ascertained and rendered legally available (.s) . 
 Under these statutes, if the intestate leave a widow and Widow's 
 any child or childi-en, or descendant of any child, the ^ ^^^^' 
 widow shall take a third part of the sm-plus of his 
 effects. If he leave no child, nor descendant of any 
 child, she shall have a moiety. In this respect, the 
 distribution is tho same as took place under the ancient 
 law. The husband of a married woman is entitled to 
 
 (o) Shop. Touch. 46.3; Williams Jac. II. c. 17, s. 7. See Watkins 
 
 ou Executors, pt. 1, bk. 3, ch. 4. on Descents, Appendix, 237 etscq. 
 
 (/)) Williams on Executors, pt. 4tli ed. ; Ec Goodman'' s Trustx, 17 
 
 1, bk. 5, ch. 3, 8. 2. Ch. D. 266. 
 
 {q) Stat. 21 & 22 Vict. c. 95, (s) See Williams's Conveyanc- 
 
 s. 20. ing Statutes, 458, and the autho- 
 
 (r) 22 k 23 Car. II. c. 10 ; 1 ritics cited in note (y) thereto.
 
 558 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Shares of 
 children : 
 
 aud their de- 
 scendants. 
 
 Advauco- 
 luents to be 
 accounted for, 
 
 Father of in- 
 testate. 
 
 Mother, 
 brothers and 
 
 sisters. 
 
 the whole of her effects (/) ; including, it is thouglit, 
 any personal estate, to which she may have been en- 
 titled as her separate property by virtue of the Married 
 Women's Property Act, 1882 (u). If the intestate leave 
 children, two-thirds of his effects if he leave a widow, or 
 the whole if ho 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 (iv) . Such children, however, 
 as have any estate by settlement from the intestate, or 
 have been advanced by him by portion in his lifetime, 
 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 {//). If the 
 intestate leave no children or representatives of them, 
 his father, if living, takes the whole ; or, if the intestate 
 should have left a widow, one-half. If the father bo 
 dead, the mother, brothers, and sisters of the intestate 
 shall take in equal shares (::), 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 (rir). 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 
 
 (t) Stat. 29 Car. II. c. 3, s. 25. 
 
 (m) Stat. 45 & 46 Vict. c. 75. 
 Upon this question, see Williams's 
 Conveyancing Statutes, 45G — 458. 
 
 (x) See Burton's Compendium, 
 pi. 1402 ; Soss's Trusts, V.-G. W., 
 20 W. R. 231 ; L. R., 13 Eq. 286. 
 
 0/) Stat. 22 & 23 Car. II. c. 10, 
 
 s. 5; £oi/d V. Bo)/d, V.-C. W., 
 Law Hep., 4 Eq. 305 ; Taylor v. 
 Taylor, L. E., 20 Eq. 155 ; Sat- 
 fcililY. Minet, C. A,, 8 Ch. D. 136. 
 
 (c) Stat. 1 Jac. II. c. 17, s. 7. 
 
 {a) Jessopp V. Watson, 1 My. & 
 K. 665 ; Burnet v. Mann, 1 My. 
 6c K. 672, n.
 
 t)F INTES^TACY. 559 
 
 mother or any brotlier or sister be living (A). 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 (c). If there be no mother, the 
 brothers and sisters take equally, the children of such 
 as may bo dead standing in loco imycntia. Beyond Next of kin. 
 brotlicrs' and sisters' cliildren, no right of representa- 
 tion belongs to the children of relatives, with respect 
 to tlio 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. 
 
 In tracing the degrees of kindred in the distribution Degrees of 
 of an intestate's personal estate, no preference is given trace^d accord- 
 to males over females, nor to the paternal over the ing to the civil 
 maternal line ((/), 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 downwards to the issue, 
 eae]i generation counting for a degree {(■). 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 downwards to the other son. So from 
 uncle to nephew is three degrees, one upwards to the 
 common ancestor, and two downwards fi'om him ; and 
 from nephew to uncle is also three degrees, two upwards 
 
 {li) Lloyd V. Tench, 2 Ves. sen. {d) Moor v. Barham, 1 P. "Wms, 
 
 215; Diirant V. Fresticood, 1 Atk. 53. 
 
 451 ; "West, 448. (c) Mmtiicy v. rdUj, Pre. Cha. 
 
 [r] Lille of Hut land v. Duchess 593; irallisv. ITodson, 2 Atk. 117; 
 
 ofliutland, 2 P. Wms. 216. 2 Black. Com. 604, 515.
 
 5G0 
 
 01-' PERSONAL ESTATE GEMERALLY. 
 
 and one downwards. If therefore there be neither 
 issue, fatlior, brotlier, sister nor mother of the intestate 
 living, such persons as arc his next of kin, according to 
 the rule above laid down, arc entitled in equal shares 
 2)0 r cupita to his personal estate, subject to his wife's 
 right to a moiety should she survive him. As the 
 kindred becomes more distant, the number of persons 
 entitled, if living, as well as the difficulty of proving 
 their respective pedigrees, becomes prodigiously aug- 
 mented. " It is at the first view astonishing," says 
 Blackstone (_/'), "to consider the number of lineal 
 ancestors which every man has within no very great 
 number of degrees : and so many different bloods is a 
 man said to contain in his veins as he hath lineal 
 ancestors. Of these he hath two in the first ascending 
 degree, his own parents ; he hath four in the second, 
 the parents of his father and the parents of his mother ; 
 he hath eight in the third, the parents of his two grand- 
 fathers and two grandmothers ; and, by the same rule 
 of progression, he hath an hundred and twenty-eight in 
 the seventh ; a thousand and twenty-four in the tenth ; 
 and at the twentieth degree, or the distance of twenty 
 generations, every man hath above a million of ances- 
 tors, as common arithmetic will demonstrate." The 
 number of collateral relations who may claim tlu-ough 
 such ancestors is of course far more numerous. 
 
 Customs of 
 London and 
 York. 
 
 Wales. 
 
 The estates of intestate freemen of the city of Lon- 
 don (r/), and of persons having their fixed or general 
 residence within the archiepiscopal province of York 
 (excepting the diocese of Chester), were until recently 
 distributed according to peculiar customs, apparently 
 derived from the ancient mode of distribution {li) . Some 
 parts of Wales also appear to have been subject to 
 
 (/) 2 Black. Com. 203. 
 
 (g) Onslow V. Ondoiu, 1 Sim. 18. 
 
 {h) Williams on Executors, pt. 
 .3, bk. 4, ch. 2.
 
 OF INTESTACY. 561 
 
 peculiar customs of distribution; for these several cus- 
 toms, thougli postponed to the right of testamentary 
 disposition by the statutes to which we have already 
 referred (/), were nevertheless not abolished by those 
 statutes in the event of no will being made. But a 
 recent statute has now altogether abolished all cus- 
 tomary modes of administration {Ic) . 
 
 The shares of persons claiming any personal estate Duty on 
 under an intestacy are subject to the same duty as intestate's 
 legacies to persons of the same degree of kindi-ed ; and estate. 
 the exemptions from duty are the same as in the case 
 of legacies (/). If" there be no next of kin, the Crown, The Crown. 
 by virtue of its prerogative, will stand in their place {iii), 
 but subject always to the widow's right to a moiety in 
 case she should survive («). 
 
 The division of the personal estate of an intestate, Place of the 
 effected by the Statute of Distributions, is remarkable 
 for its fairness. The only provision which might be 
 amended is that which places the half blood on an 
 equahty with the whole. A corresponding equality in 
 interest and feeling but rarely exists in actual life. 
 The proper place for the half blood appears to be that 
 now assigned to them in the descent of real estate, 
 according to the recommendation of the Real Proj)erty 
 Commissioners, namely, next after those of the same 
 degree of the whole blood (o) . The appointment of an 
 executor or administrator, in whom the whole personal 
 property is vested, with full power of disposition, tends 
 
 (i) Ante, p. 505. Vict. c. 18 (repealing stat. 15 & 
 
 (^•) Stat. 19 & 20 Vict. c. 94. 16 Vict. c. 3) ; 47 & 48 Vict. c. 
 
 (1) Stats. 55 Geo. III. c. 184; 71. 
 
 44 Vict. 0. 12, 88. 3G, 41, 42. («) Cave v. liobcrts, S Sim. 2U. 
 
 See anie, pp. 536 — 538. (o) See Priuciples of the Law 
 
 (w() Taylor \. Ilaygarth, 14 Sim. of Real Property, 110, 13th ed. ; 
 
 8; Fou-cll V. Merrdt, 1 Sina. & 112, 14th ed. 
 Giflf. 381. See stats. 39 & 40 
 
 W.P.P. o o
 
 562 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Points in 
 ■which distri- 
 bution is pre- 
 ferable to 
 descent. 
 
 Primo- 
 geniture. 
 
 greatly to simplify tlio title to leasehold estates and 
 other property of a personal nature. It could he wished, 
 however, that the office of an administrator were trans- 
 missihle in the same manner as that of an executor. 
 In other respects, the distribution of personal estate on 
 intestacy approaches far more nearly to the disposition 
 which the deceased himself would probably have made, 
 than the descent of real property, 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 purchasers, and directs the division of the produce 
 by his trustees amongst his children in such shares as 
 he may think just, with 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 civilized country in the 
 world {])) . Neither does he leave it to all his sons 
 equally in undivided shares, thus inflicting an injustice 
 on his daughters,- and allowing all plans for the improve- 
 ment 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 circum- 
 stances, most nearly correspond with his intention. It 
 is true that when property is large, it is usually entailed 
 on the eldest son and his issue subject to moderate por- 
 tions for the younger children. This custom of primo- 
 geniture is suited to the institutions of oui' country, and 
 to the habits of the class to which large landed property 
 
 {p) Co. Litt. 191 a, n. (1), vi. 4.
 
 OF INTESTACY. 563 
 
 usually belongs, and tlio author had no wish to seo it 
 disturbed. The settlements, however, by which these 
 entails are created are more frequently made by deed 
 than by mil. They almost invariably contain provisions 
 for the portions of younger children, varying in amount 
 with the value of the property ; and, whether made by 
 deed or will, they are usually long and intricate in their 
 natm-e, providing for the numerous contingencies which 
 may arise under the peculiar circumstances of each 
 family. Nothing in fact can be more different than the 
 devolution of an estate to the eldest son imder 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 obhgation at all. 
 There seems to be no method of making, in case of in- 
 testacy, any sort of disposition of landed property which 
 might be reasonably simple, and at the same time re- 
 semble an ordinary family settlement. If such a settle- 
 ment be not made by deed, the owner has ample power 
 of effecting the same object by his will. Intestacy, in 
 fact, rarely happens to the owner of large landed pro- 
 perty. The property which descends to heirs under 
 intestacies, though large in the aggregate, is generally 
 small in individual cases. When the wishes of all can- 
 not 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 circumstances the reader may perhaps be induced 
 to think, that if, in case of intestacy, the rules for the 
 devolution 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. 
 
 The descent of real estate to distant heirs, and the Descent and 
 devolution of personalty to distant kindred, involve an distant heirs 
 
 (J Q 2 '^°'i kindred.
 
 564 OF PERSONAL ESTATE GENERALLY. 
 
 amount of learning and litigation, the abolition of wMcli 
 would perhaps bo desirable. The family and near re- 
 lations of an intestate have generally claims upon his 
 bounty, which ought not to be disappointed by the acci- 
 dent 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 with- 
 hold from them, therefore, that which they had never 
 expected to enjoy, would not be to inflict a loss. Under 
 the present system, the property of an intestate who has 
 no near relations, is not unfrequently 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 community. 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 devolution 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 certainly 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 
 vwd remote male paternal ancestor of the intestate {q), 
 or who claims a share in the personalty because he 
 chances to be a survivor amongst the multitude stand- 
 ing in the fifth or sixth degree of a series of kindred 
 which increases, as it grows distant, in geometrical pro- 
 gression {)•). 
 
 {q) See Principles of the Law {r) The author's attention was 
 
 of Real Property, 111, 13th ed. ; since called to a similar proposal 
 112, 14th ed. in Mill's Political Economy, vol. 
 
 1, pp. 272, 273, 2nd ed.
 
 ( 565 ) 
 
 CHAPTER Y. 
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 
 
 Markiage, being essential to the welfare of tlie com- 
 munity, and also involving important consequences to 
 the individuals concerned, is not on the one hand 
 allowed to be unduly restrained, nor on the other to be 
 brought about by unfair moans. 
 
 Amongst the many striking differences between the Restraints on 
 laws of real and personal property, by which our legal ™^^"^se- 
 system is complicated, will be found the rules relating 
 to attempted restraints on marriage. Real estate was 
 governed by the rules of the common law ; but personal 
 estate, when bequeathed by will, was, as we have seen (a), 
 long subject to the jurisdiction of the Ecclesiastical 
 Coui'ts. These Com'ts adopted, with some modification, 
 the rules of the civil law, which is more favourable tlian 
 the common law of England to liberty of choice in 
 marriage. Hence it follows that some restrictions on 
 marriage, Avhich are valid when applied to a gift of 
 real estate, are void when attempted to be imposed on a 
 gift of personal property. Tlie rules respecting real 
 and personal estate so far agree that a condition 
 annexed to a gift of either, that a person shall not 
 marry at all, is void {If). But a gift of either by a 
 husband to his wife dming lier widowhood is valid (c) ; 
 
 (rt) Ante, p. ol8. L. R., 18 Eq. 510. Generally as 
 
 (A) Shop. Toucli. 132; Feirin to conditions iu restraint of mar- 
 
 V. lyon, 9 East, 170, 183 ; Hinh- riagc, sec 2 Jarna. Wills, 43 ct 
 
 ton V. Cobb, 9 Sim. 615 ; 5 My. & scij., 4th ed. 
 
 Cr. 145 ; Morhy v. licnitoh/son, 2 (r) Barton v. Barton, 2 Vcru. 
 
 Hare, 570 ; BcUairs v. Bellairs, 308.
 
 566 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Marriago 
 without con- 
 eeut. 
 
 Marriage 
 "brocage. 
 
 neither would a gift of the income of property to a 
 single person until marriage, with a gift over on mar- 
 riage, appear to be invalid (r/). When, however, a gift 
 is made, with a condition that it shall he forfeited if the 
 donee marry without the consent of certain trustees or 
 other persons, the difference between the laws of real 
 and personal estate becomes conspicuous. If the gift 
 bo of real estate, or of money charged on real estate, it 
 will cease on the event of marriage without the required 
 consent (e). But if it be a bequest of personal property, 
 the condition is regarded as merely in ten-orem and 
 void (/), unless accompanied by a bequest over to some 
 other person on the marriage taking place without con- 
 sent {(j) ; so that the legatee will be entitled to retain 
 the legacy, notwithstanding his or her marriage without 
 consent, unless on that event it be expressly given in 
 some other manner. Such conditions in bequests of 
 personalty, when unaccompanied by a gift over, are 
 called in terrorcm, because, says Lord Eldon, " they are 
 supposed to alarm persons, when we know they contain 
 no terror whatsoever " {/i). 
 
 In order to prevent marriages from being unfairly 
 obtained, it is a rule in equity that all contracts for re- 
 ward for procuring marriages (called marriage brocage) 
 are void (/). And if a parent or guardian should stipu- 
 late for any private benefit for the marriage of his 
 
 (rf) See JRiffht d. Compton v 
 Compton, 9 East, 267 ; Morley v, 
 Rennoldson, 2 Hare, 570, 580 
 Webb V. Grace, 2 Phil. 701 . 
 Lloyd V. Lloyd, 2 Sim., N. S. 255 ; 
 Heath v. Leicis, 3 De Gex, M. & 
 G. 954 ; Evans v. Rosser, V.-C. 
 W., 10 Jvir., N. S. 385 ; 2 Hem. & 
 Mil. 190; Allen v. Jaekson, 1 Ch. 
 D. 399 ; Jo>ws v. Jo7Ws, 24 "W. R. 
 274; 1 Q. B. Div. 279. 
 
 {e) lieynish v. Martin, 3 Atk. 
 330, 333. 
 
 (/) Bellasis y. Ermine, 1 Cha. 
 Ca. 22. 
 
 {ff)Stratton v. Grymcs, 2 Vcm. 
 357 ; Harvey v. Aston, 1 Atk. 
 361 ; Clarice v. Parker, 19 Ves. 1, 
 13. See 2 Jarm. Wills, 45—48, 
 4th ed. 
 
 [h) 19 Ves. 13. 
 
 ((■) Hall V. Potter, 3 Levinz, 
 411 ; Shower's Par. Cas. 76.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND -WIFE. 567 
 
 child or ward, siicli stipulation would bo void, and 
 money actually paid under it would be decreed to be 
 refunded (J). 
 
 Few marriages are now contracted between persons Marriage 
 possessing any amount of property, without a previous ^^**^^™^^ts- 
 settlement of such property being made, in some stipu- 
 lated manner, for the benefit of the intended husband 
 and wife and the children of the marriage. As mar- 
 riage is a valuable consideration (/.), such settlements 
 are binding on both parties if of full age. And an Act Settlements 
 of Parliament has been passed. (/) enabling every infant ^^ "^fants. 
 not under twenty if a male, and not under seventeen if 
 a female, to settle his or her property, whether real or 
 personal, upon marriage, provided the sanction of the 
 Com-t of Chancery be obtained. This sanction must 
 now be given by the Chancery Division of the High 
 Court of Justice. But if the settlement be not made Not bindiDg 
 under the provisions of this Act, and either husband or °^ P^^^^ 
 
 unciGr a*^6. 
 
 wife should be under age, the settlement will not be 
 binding on him or her (ui), although the other party, if 
 of full age, will be bound by it {n). And if both of 
 them should be under age, neither of them will be 
 bound by it. But, upon attaining the age of twenty- Coiifimiation 
 
 111 •p lii p of settlement 
 
 one years, a husband or a wile may elect to confii-m a executed 
 marriage settlement executed during his or her infancy ; ^^uring 
 and the settlement may take efTect by means of such a 
 confirmation (o). The circumstance of the settlement 
 of an infant's personal property being fair and reason- 
 
 (j) 1 FonLlanque on Equity, (>«) Ellison v. Elivin, 13 Sim. 
 
 262 ; Smith v. Bruniiig, 2 Vem. 309 ; Le Vasseur v. Scratton, 14 
 
 392. Sim. 116. 
 
 {k) Ante, p. 114. («) Bicrnfordy. Lane, 1 Bro. C. 
 
 (0 Stat. 18 & 19 Viet. c. 43; C. 106; Milnery. lord Harewood, 
 
 JRc Dalton, 6 De Gex, M. & G. 18 Ves. 259. 
 201, extended to tlie Court of (o) See Smith v. Lucas, 18 Ch. 
 
 Chancery in Ireland, by stat 23 D. 531 ; Wilder v. Prout, 22 Ch. 
 
 & 24 Vict. c. 83. D. 263.
 
 568 OF TERSONAL ESTATE GENERALLY. 
 
 al)le, and made with tlie approbation of his or her 
 guardians, was formerly considered as giving it vali- 
 dity {])) ; hut this circumstance seems now to have no 
 weight. It has, however, been decided that a compe- 
 tent legal jointui'e {q) settled on the intended wife, then 
 an infant, with the concurrence of her guardians, in lieu 
 of her right to dower out of her husband's freehold 
 lands, and in lieu of her distributive share of his per- 
 sonal estate in the event of his intestacy, was sufficient 
 to deprive her both of her dower and of her distributive 
 share in her husband's personalty (r). Formerly, when 
 the intended wife only was an infant, a settlement of 
 her personal estate in possession was valid, on account 
 of the interest which, as we shall see, the law gave 
 to the husband in such personal estate. 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 (s). 
 But, under the present law, if a woman marry before 
 she attains the age of twenty-one, her personal estate in 
 possession does not pass to her husband, but remains her 
 separate property after the marriage (t) ; so that any 
 settlement thereof executed in contemplation of the 
 marriage could only take effect by her confirming the 
 same after she came of age (ii), A form of marriage 
 settlement of stock and other personal estate upon the 
 usual trusts will be found in the Appendix (,r). If the 
 student will take the trouble to peruse it, and to look at 
 the explanatory passages, to which he is referred in the 
 
 {p) 2 Roper's Husband and (.s) Trollope v. Li)don, 1 Sim. ifc 
 
 Wife, 26. Stu. 477, 487. 
 
 {q) See Principles of the Law {t) See stat. 45 & 46 Vict. c. 
 
 of Real Property, 237, 13th ed. ; 75, sects. 1 (sub-s. 1), 2 ; Wil- 
 
 249, 14th ed. liams's Conveyancing Statutes, 
 
 (>■) EarlofBnckbighamyi.Bnmj, 373, 382, 383, 418. 
 
 3 Brown's Par. Cas. 492. («<) See anic, p. 667. 
 
 (x) Appendix (B.), below.
 
 OF THE MUrUAL RIGHTS OF IHSUAND AND WIFE. 569 
 
 notes thereto, he will gain an idea of the general scheme 
 of a modern personal settlement (//), and the manner in 
 which tliis scheme is carried out in practice. The pass- 
 ing of the Married Women's Property Act, 1882 {z), 
 has caused certain changes to be made in the form of 
 marriage settlements of personal estate : but the provi- 
 sions usually contained therein are substantially the 
 same as were inserted in settlements made before that 
 Act took effect. And the custom of making a settle- 
 ment upon marriage has not been affected by the Act. 
 
 Let us now consider the rights of husband and wife Rig-hts of 
 with regard to personal estate, apart from the question ^."if e 'Tnde- 
 of settlement. A very great change was made in the pendent of 
 
 ,, -J f • 1 1 • J^ J' settlement. 
 
 legal capacity oi 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 {b) ; and the rights of wives, 
 who were married on or after that day, are chiefly 
 regulated by its provisions. Married women, however, 
 whose man'iage took place before that date, are in 
 many respects still subject to the previous law. So 
 
 {)/) A personal settlement is a settlement of property in the quality 
 of personal estate, and is opposed to a real settlement, -whicli is a 
 settlement of property in the quality of real estate ; see Williams on 
 Settlements, 123. Land may bo made the subject of a personal 
 settlement, as well as money. This is accomplished by conveying 
 the land to trustees upon trust for sale (see a>i(c, pp. 455, 456), and 
 executing a settlement of the proceeds of sale. Land is often settled 
 in this way. A form of such a settlement of land, made upon mar- 
 riage, is given in Williams's Conveyancing Statutes, pp. 505 — 512 ; 
 see also ibid. pp. 366 — 371 ; stat. 47 & 48 Vict. c. 18. Similarly, 
 money may be made the subject of a real settlement by means of a 
 trust for conversion, as we have seen {aide, pp. 476, 477). Forms of 
 real settlement, made on marriage, are given in Williams's Convey- 
 ancing Statutes, pp. 515, 517. 
 
 (z) Stat. 45 & 46 Vict. c. 75. seq., 418, 421. 
 
 (a) Ibid. See Williams's Con- (i) Sect. 25 ; ibid. p. 463, and 
 
 veyancing Statutes, pp. 373 et see p. 436, note (j).
 
 570 OF pj:rsonal estate genehally. 
 
 that a knowledge of the law, which was in force before 
 the commencement of this Act, will bo necessary for the 
 legal practitioner for some time to come. It is, more- 
 over, 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 mar- 
 ried women by Coui"ts of Equity, together with the 
 modifications introduced by the Married Women's Pro- 
 perty Act, 1870(f), and other statutes; and then to 
 consider the changes made by the Married Women's 
 Property Act, 1882 (r/). 
 
 Ancient rights Down to the time when the Act of 1882 took effect, 
 and TvSe^^ the principles which governed the legal (as distinguished 
 from the equitable) rights (f) of husband and wife to 
 personal property were traceable rather to the circum- 
 stances of ancient 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 husband, in the event of her sm-viving 
 him, which no alienation that he could make, nor any 
 debts which he might incur, were able to set aside (/). 
 But in those days personal property was of too insigni- 
 
 {c) Stat. 33 & U Vict. c. 93. [d] Stat. 45 & 46 Vict. c. 75. 
 
 (c) Equitable rights are rights -which owe their origin to the equit- 
 ahle jurisdiction of the Court of Chancery and may now he enforced 
 in the High Court of Justice by virtue of the equitable jurisdiction 
 vested therein by the Judicature Acts. Legal rights, as oj)posed to 
 equitable rights, are rights conferred by the common law or by 
 statute, which may now be enforced in the High Court of Justice, 
 because the jiirisdiction of the former Courts of common law has been 
 transferred thereto by the same Acts ; see ante, pp. 99, 318. And 
 further, as to the distinction between legal and equitable rights, see 
 ■Williams's Conveyancing Statutes, pp. 164—166, 386—388. 
 
 (/) See Principles of the Law of Real Property, 235, 13th ed. 
 247, 14th ed.
 
 OF THE MUTUAL lUGIITS OF IIUSHAND AND AVIFE. 571 
 
 ficant a value to bo tlie subject of any sucli provision. 
 And if a woman now marry without a settlement, she 
 has still no claim on her husband's personal estate, how- 
 ever large, unless he should happen to die intestate, in 
 which case, as wo have already mentioned, she is entitled 
 to a third or a half of what he may leave, according as 
 he may or may not leave issue surviving him. A hus- 
 band, on the other hand, was in ancient times considered 
 absolutely entitled to such personal eliattols as his wife 
 might possess. In this respect the law was then both 
 simple and sufhcient. 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 j)erson {(j). 
 Accordingly, all rights in resj)ect of personal estate, 
 which were enjoyed by a man at the time of marriage, 
 remained to him unaltered after marriage. A husband 
 moreover enjoj'ed the full legal capacity for acquiring 
 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 caj^acity of the 
 wife for acquiring and exercising rights over personal 
 estate was by the old law mainly transferred to the 
 husband during the period of her coverture, that is, 
 during the continuance of the marriage (//). 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 
 
 [fl) Pr. K. P. 225, lath cd. ; (A) See WiUiams's Couveyanc- 
 
 237, Mth ed. ; Williams's Con- ing Statutes, 373—376. 
 veyancing Statutes, 374, 375.
 
 572 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 before marriage (/), and all torts (/.) committed by Her 
 either before or during tlie mamage (/). He might 
 thus be made liable to the payment of all debts which 
 she might have incurred before mamage. 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 civilization has given rise, conjoined with the 
 rules of equitable administration laid down by the 
 Court of Chancery, and the anomalous rights conferred 
 upon married women by the Married Women's Pro- 
 perty Act, 1870 {m), gave to this branch of law a 
 perplexity unknown to the simple, though somewhat 
 harsh, rules of our ancestors. 
 
 Tlie wife's 
 chattels per- 
 sonal belong 
 to her 
 husband. 
 
 In the first place then, by the common law, personal 
 
 property of the ancient kind, namely, chattels personal 
 or moveable goods, belonging to the wife at the time 
 of her marriage, or given to her afterwards, became the 
 absolute property of her husband in the same manner 
 precisely as if they had been originally his own, or had 
 been subsequently given to him {n). He might dispose 
 of them as he pleased in his lifetime 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. So imperative was this rule, that 
 if chattels personal were given to a married woman 
 jointly with a stranger, the law instantly severed the 
 jointm-e, and made the husband and the stranger 
 tenants in common (o). 
 
 (i) See Williams's Conveyanc- Bac. Abr. tit. Baron and Feme 
 ing Statutes, 396, 432—436. 
 
 [k) See ante, p. 100. 
 
 (?) See WUliams's Conyeyanc- 
 ing Statutes, 399 ct seq. 
 
 {»i) Stat. 33 & 34 Vict. c. 93. 
 
 (m) Co. Litt. 300 a; 351 b; 
 
 (C.) 3 ; 1 Rop. Husb. and Wife, 
 169. 
 
 (o) Bracebridge v. Cook, Blow- 
 den, 411. See Re Barton'' s ivill, 
 10 Hare, 12.
 
 OF THE MUTVAL RIGHTS OF HUS15AND AND WIFE. 573 
 
 The only exceptions to this sweeping rule were the Paraphor- 
 wifo's pavaphernaUa, so called from the Grreek Trocpxpspvin, ^^ ^' 
 being things to which the wife was entitled over and 
 above her dower. The wife's paraphernalia consisted 
 of her apparel and ornaments suitable to her rank and 
 degree (p) ; and gifts made by the husband to his wife 
 of jewels or trinkets to be worn by her as ornaments 
 were considered as part of her paraphernalia ((/) . These 
 articles, equally with the wife's other personal chattels, 
 might be disposed of by the husband in his lifetime (;•), 
 and, with the exception of the wife's necessary clothing, 
 were also liable to his debts (.s) . The wife also herself 
 had no power to dispose of them by gift or will during 
 her husband's lifetime (f). But paraphernalia differed 
 from the wife's other personal chattels in this respect, 
 that the husband, though he might dispose of them in 
 his lifetime, had no power to bequeath them awaj^ from 
 his wife by his will (u). 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 (.f), 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 unmarried. 
 
 With regard to such of the wife's personal estate as choses in 
 was not in possession, but for which she had only a right 
 
 (p) 2 Bl. Com. 43G; 2 Rop. £arl of Tli/mouth, 2 Atk. 104; 
 
 Husb. and Wife, 140; 11 Vin. Lord Townscnd v. Wyndham, 2 
 
 Abr. tit. Executors (Z. 5). Ves. sen. 1, 7. 
 
 {q) Graham v. Londonderry, 3 (/) 2 Rop. Husb. and Wife, 
 
 Atk. 394; Jervoise v. Jervoise, 17 141. 
 
 Beav. 566. See Re Breton's («) Tippiny v. Tipping, 1 P. 
 
 estate, 17 Ch. D. 416, as to the Wms. 730; Korthey v. KortJicy, 2 
 
 jewellerj-. Atk. 77. 
 
 (r) Ibid. ; 2 Rop. Husb. and {/) Graham v. Londonderry, 3 
 
 Wife, 141. Atk. 394; 2 Rop. Husb. and 
 
 («) 2 Bl. Com. 436 ; Ridout v. Wife, 143. 
 
 action.
 
 574 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 to sue, tho rights of the husband were difTorcnt accord- 
 ing 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 (//), is termed in law French chosen in action : such 
 as might be recovered by action at law were called legal 
 ehoses in action, and such as might be recovered by suit 
 Husband may in equity were called equitable ehoses in action. With 
 hrcan ^et 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, other- 
 wise they would belong to his wife (s). 
 
 them duriu 
 coverture. 
 
 Legal ehoses 
 in action. 
 
 Legal ehoses in action consist principally of debts 
 due to the wife, and secured or not by bond, or by bills 
 or promissory notes. Of all these the husband had a 
 right to receive payment, and, should payment have 
 been refused him, he might sue for them in the joint 
 names of himself and his wife (a) ; but bills and notes 
 of the wife payable to order, being transferable by in- 
 dorsement, might be indorsed by the husband alone (i), 
 or sued for in his own name (c). All such legal ehoses 
 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 [d) ; but 
 if the wife had really no interest, he could not of course 
 make use of her name {c). If the husband sued in the 
 joint names of himself and his wife, the benefit of the 
 
 (y) Ante, p. 4. 
 
 (s) 2 Bl. Com. 434 ; 1 Wma. on 
 Executors, pt. 2, bk. 3, ch. 1, 
 s. 3. 
 
 («) 1 Eop. Husb. and Wife, 
 213, 214; Sherrington v. Yates, 
 12 Mee. & Wels. 855. In this 
 case the note was not payable to 
 order, and therefore not negoti- 
 
 able. 
 
 {b} Mason v. Morgan, 2 Ad. & 
 El. 30. 
 
 (c) Burrough v. Mosi, 10 Bam. 
 & Cress. 558. 
 
 (d) 1 Eop. Husb. and "Wife, 
 213. 
 
 (e) Abbot T. Blofeld, Cro. Jac. 
 644.
 
 OF THE MUTUAL RIGHTS OF HUSBANB AND WIFE. 0/5 
 
 judgment of the Court survived to lior in ilio case of his 
 decease (/) ; 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 {g), 
 and bills and notes formed no exception to this rule [h) ; 
 but if the wife died before her husband, these choses in Hufsband siir- 
 action, still remaining unreduced, formed part of her take out ad- 
 personal estate ; and her husband liad to take out ad- mu"sti''ition. 
 ministration to her effects before he could proceed to 
 recover them (/). When recovered, they belonged to 
 him absolutely, as did any other personalty, which he 
 might acquire as his wife's administrator (/.•). But the 
 husband, as the administrator of the wife, w^as bound 
 to satisfy her ante-nuptial debts and other personal 
 liabilities out of the assets which he acquired in that 
 capacity (/). The only exception to the rule, requir- Exception. 
 ing 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 {m) to recover the arrears 
 accrued to his wdfe before marriage by action of debt 
 
 (/) 1 Vcm. 396 ; 1 Rop. Husb. (i) 1 Rop. Hiisb. aud Wife, 
 
 and Wife, 212. 205. See Beits v. Kimpion, 2 
 
 iff) Co. Lit. 351 b. B. & Adol. 273. 
 
 (/() Richards v. Richards, 2 (/.) See Williams's Convcyanc- 
 
 Barn. & Adol. 417 ; Gaters v. ing Statutes, 375, 452 — 454. 
 
 Madihy, 6 Mee. & Wels. 423 ; (/) Ibid. p. 454. 
 
 Hart V. Stephens, 6 Q. B. 937 ; [m) Stat. 32 Hen. VIII. c. 37, 
 
 ScarpelUni v. Atcheson, 7 Q. B. e. 3. 
 864.
 
 576 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 or distress. But this provision did not apply to the 
 rents reserved upon leases for years (»). 
 
 Equitable Equitable choses in action consist principally of lega- 
 
 actio^n ^ ^^®®' I'^siduary personal estate of testators, and money 
 in the funds. But all kinds of personal property, in- 
 cluding chattels real (o), 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 {p). The right of the wife to 
 such a provision was termed the icife^s equity for a 
 Wife's equity Settlement [q). In fixing the proportion to be settled, a 
 prior settlement was always taken into account (r). 
 But where no settlement has previously been made, 
 the proportion required to be settled on the wife was 
 
 for a settle- 
 ment 
 
 (h) Trescott v. Boucher, 3 Barn. 
 & Adol. 849. 
 
 (o) Sanson 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 
 Tidd V. Lister, 10 Hare, 140 ; 3 
 De a., M. & G-. 857, 869, 870 ; 
 Durham v. Crackles, 8 Jur., N. S. 
 1175 ; Sturgis v. Champncys, 5 
 Myl. & Cr. 97 ; Wort ham v. Fem- 
 berton, 1 De Gex & S. 644 ; 
 Gleaves v. Paine, 1 De Gex, J. &;S. 
 87 ; Smith v. Matthews, 3 De G., 
 F. & J. 139 ; Barnes v. Robinson, 
 1 N. R. 257 ; Sugd. V. & P. 560, 
 
 14th ed. 
 
 {p) It was formerly held that 
 the wife's equity to a settlement 
 did not extend to sums imder 
 200/. ; Foden v. Finney, 4 Kuss. 
 428 ; but this distinction was 
 afterwards aboKshed ; Fn re Cut- 
 ler, 14 Beav. 220 ; Re Kincaid, 1 
 Drew. 326. 
 
 {q) 1 Eop. Husb. and Wife, 256 
 et seq. 
 
 {r) March v. Mead, 3 Atk. 720; 
 Zadi/ Flibank v. Montolieu, 5 Ves. 
 737 ; Erskine's Trust, 1 Kay & 
 John. 302 ; Spirctt v. Willows, 
 L. 0., 12 Jur., N. S. 538 ; Law 
 Hep., 1 Ch. Ap. 520.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 577 
 
 most frequently one-half (s) ; and sometimes tlie Court 
 lias gone so far as to require a settlement of tlie whole 
 fund (/). Although the children were usually inserted 
 in the settlement, yet the right was personal to the 
 wife, and might be waived by her (u) ; nor would it 
 survive to the children in case of her decease, before the 
 Court had made its decree (.r) ; but if she died after the 
 decree, it would still have been carried into effect for the 
 benefit of the children (y). The ultimate limitation in 
 default of children was in favom* of the husband abso- 
 lutely ; as, but for the equity to a settlement, the pro- 
 perty would have been his own (;:) . This rule of the 
 Coiu't 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 equitable {a) ; 
 it could not, therefore, be enforced until the time 
 arrived when the fund became payable to the hus- 
 band (h). If, however, as most frequently happened, 
 the husband could obtain from the executor or trustee 
 of the fund in question payment of it to himself, 
 
 (s) 1 Hop. Husb. and Wife, (.r) De la Garde v. Lempricre, 
 
 260 ; Archer v. Gardiner, 1 C. P. 6 Bear. 344 ; overruling Stcin- 
 
 Coop. 340. mitz v. Halthin, 1 Glyn & Jam. 
 
 {t) Brett V. Greenivell, 3 You. 61 ; Baler v. Bayldon, 8 Hare, 
 
 & CoU. 230; Gardner v. 3Iar- 210; Wallace v. AuldJo,Y.-G.'K.. 
 
 shall, 14 Sim. 575 ; Scott v. Spas- 9 Jiir., N. S. 687 ; 2 Drew. & 
 
 Ae«, 3 Mac. & Gord. 599 ; Bunh- Smale, 216, af&rmed by Lords 
 
 ley^. Bunkley, L.C., 16 Jur. 767; Jus., 11 W. R. 972; 1 De Gex, 
 
 2 De Gex, M. & G. 390 ; Mar- J. & S. 643. 
 
 shall V. Fowler, 16 Beav. 249 ; (y) Groves v. Clarke, 1 Keen, 
 
 Gent V. Earris, 10 Hare, 383 ; 132 ; S. 0., Groves v. Fer/cins, 6 
 
 Ee Welchman, 1 Gifl. 31 ; Taunton Sim. 584. 
 
 V. Morris, 11 Ch. D. 779. {z) Croxton v. May, Law Rep., 
 
 {u) Murray v. Lord Flihanh, 9Eq. 404; Wahh\. Wason,\j.Q. 
 
 13 Ves. 6. But the wife having & L. J. M., 21 TV. R. 554 ; L. R., 
 
 once insisted on her right could 8 Ch. 482._ 
 
 not afterwards waive it; Barker {a) 2 P. Wms. 641. 
 
 V. Lea, 6 Mad. 330 ; Whittem v. [h) Osborn v. Morgan, 9 Hare, 
 
 Sawyer, 1 Beav. 593. 432. 
 
 W.P.P. P p
 
 578 
 
 OF TERSOMAL ESTATE GENERALLY. 
 
 without tho assistance of the Court, lie liad a right to 
 do so, and in this case the wife's equity was at once 
 exchided. And, if tho 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 {c) . 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 (d). 
 
 Effect of the 
 
 husband's 
 
 assij^nmeut. 
 
 If the husband, instead of obtaining payment of the 
 fund, should have assigned it to a third person (e), or if 
 he should have become bankrupt (/), 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 onlj^, 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 (//) ; although she would have been 
 entitled to a settlement as against his creditor's trustee 
 in . bankruptcy (//). If the husband died before the 
 assignee got possession of the fund, leaving his wife 
 smwiving, the wife's right by survivorship prevailed 
 
 (c) 1 Rop. Husb. and Wife, 
 273 ; Miirrai/ v. Zord Elihank, 
 10 Ves. 90. 
 
 (d) 1 Rop. Husb. and Wife, 
 220; EecsY. Keith, 11 Sim. 388; 
 Cunningliam v. Antrobus, 16 Sim. 
 436. 
 
 {e) 1 Rop. Husb. and Wife, 
 271 ; Malcolm v. Charlcsu'orth, 1 
 Keen, 73, 74 ; Scott y. Spashetf, 
 3 Mac. & Gord. 599 ; Carter v. 
 Taggart, 5 De Gex & Smale, 49 ; 
 1 De Gex, M. & G. 286. See 
 
 IVard V. Yates, 1 Drew. & S. 80. 
 
 (/) 1 Rop. Husb. and Wife, 
 268; Taunton v. Harris, 11 Ch. 
 D. 779. 
 
 {g) Elliott V. Cordell, 5 Mad. 
 149 ; Stanton v. Eall, 2 Russ. & 
 M. 175, 182; Tidd v. lister, 10 
 Hare, 140, 154 ; 3 De Gex, M. & 
 G. 857; Jie Dupfs Trust, 28 
 Beav. 386. 
 
 [h) Wright v. Morley, 11 Ves. 
 17 ; Taunton v. Morris, 11 Ch. D. 
 779.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 579 
 
 over the title of the creditors' trustee in bankruptcy (i) 
 or the assignee for valuable consideration (/.•) . 
 
 If the wife should have been entitled to any chose Assignment of 
 
 "Wife's rcvcF" 
 
 in action, whether legal or equitable, of a reversionary Bionary choscs 
 natiu'e, the effect of an assignment by tlie husband ^" action. 
 was different under different circumstances. The wife 
 could not assign (/) ; for by the act of marriage she 
 deprived herself of all power so to do ; and tlie husband 
 could only assign to another the interest to which he 
 might be entitled himself. Suppose, therefore, that the Example, 
 wife was entitled, on the death of A., a living person, 
 to a sum of stock standing in the names of trustees, and 
 that her husband made an assignment of this rever- 
 sionary interest to B., a purchaser ; the benefit which 
 accrued to B. by virtue of this assignment varied, ac- 
 cording as the husband, the wife, or A., the tenant for 
 life, happened to die first. If the husband died first, 
 B. lost his purchase ; for the Avife, having survived her 
 husband, became on the death of A. entitled to the 
 stock, which had never been reduced into the possession 
 of her husband, or of B., his assignee {m). If A. died 
 first, B. might then obtain a transfer of the stock, if the 
 trustees chose to transfer it to him, and if the wife 
 should not have brought a suit or an action to enforce 
 her equity to a settlement (^/). 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 (o), B. most probably obtained only half of the 
 fund for his own benefit, and was obliged to settle the 
 
 (i) Tierce v. Thornleij, 2 Sim. Ch. 220. 
 
 167. (/) Otherwise than under stat. 
 
 (/.) HuicJiings v. Smith, 9 Sim. 20 & 21 Vict. c. 57, stated below. 
 
 137 ; Ellison v. Elwin, 13 Sim. [m) Piirdew v. Jaclso)), 1 Russ. 
 
 309 ; Ashhy v. Ashby, 1 Coll. 553; 1 ; Homier v. Morton, 3 Russ. 65. 
 
 Le Vasscur y. Scratton, 14 Sim. {ii) Greedy y. Lavender, \2>'Siea.v. 
 
 116 ; MichelmoreY. Mitdye, 2 Gilf. 62. 
 
 183; Frole v. Soady, L. R., 3 (&) Ante, ■[>■[>. 576, 577. 
 
 rr 2
 
 580 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 other lialf 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 cu-cumstances {p) ; and the hushand, on taking 
 out administration to his wife, was bound by his pre- 
 vious 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 assign- 
 ment 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 assignment, the whole fund might 
 therefore be transferred to the husband (</). But it is 
 contrary to the general principle of equity to allow the 
 rights of parties to be affected by any merger or ex- 
 tinguishment of interests ; and the doctrine in question 
 was overruled {)•). 
 
 Release of 
 husband. 
 
 Money 
 charged on 
 real estate. 
 
 The same principles which applied to the assignment 
 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, in case of her 
 being the survivor (.s) . If, however, the reversionary 
 chose in action of the wife consisted of money charged 
 on real estate, the wife's interest could either be re- 
 leased or assigned by a deed acknowledged by her, with 
 the concurrence of her husband, under the provisions 
 of the Act for the Abolition of Fines and Recoveries {f) . 
 
 (p) Ante, p. 575. 
 
 [q) Creed v. Ferry, 14 Sim. 592 ; 
 Hall V. Hugonbi, 14 Sim. 595 ; 
 Bishopp\. Colebrook, y.-C. E., 11 
 Jur. 793. 
 
 (>•) Whittle Y. HoDiing, llBeav. 
 
 222 ; affii-med, 2 Phil. 731 ; Han- 
 chett V. Briscoe, 22 Beav. 496. 
 
 [s) Rogers v. Acastcr, 14 Beav. 
 445 ; Harley v. Barley, 10 Hare, 
 325. 
 
 (0 Stat. 3 & 4 Will. IV. c. 74.
 
 OF THE MUTUAL RIGHTS OF HUSBAND A>;D WIFE. 581 
 
 The contrary was decided in a case {ii), which may now 
 be considered as overruled (.r). 
 
 An Act of Parliament of the present reign (//) , com- Disposition 
 monly called " Malins' Act," enabled every married °^ ^^'^^?'^„_ 
 
 •/ ' •/ reversionary 
 
 woman, with the concurrence of her husband, by deed interests. 
 to dispose of every future or reversionary interest, 
 whether vested or contingent, of such married woman, 
 or lier husband in her right, in any personal estate to 
 which she should bo entitled under any instrument 
 (except her mamage settlement) 9)iack' after the 31.s^ 
 Beccmher, 1857 ; also to release or extinguish any Release of 
 power in regard to any sucli personal estate ; and also po'^^^s- 
 to release and extinguish her equity to a settlement out equity to a 
 of her personal estate in possession under any such settlement. 
 instrument as aforesaid. But every such disposition To be sepa- 
 was required to be separately acknowledged by her in knowledo-ed. 
 the manner required by the Act for the Abolition of 
 Fines and Recoveries {%) . And nothing therein contained 
 was to extend to any reversionary interest to which she 
 should become entitled imder any instrument by which 
 she should be restrained from alienating or affecting 
 the same. 
 
 By the general ride of the common law, founded Husband's 
 
 ,, ••ipji • s. • \ liabilities at 
 
 upon the same prmciple of the union ot person m lius- common law. 
 band and wife(c/), a married woman could not sue or be 
 sued without her husband (/^). It followed that, by the 
 
 See Principles of the Law of Real Hare, 69; 18 Jnr. 56; Tucr \. 
 
 Property, p. 233, 13th ed. ; 245, Turner, 20 Beav. 560. 
 
 14th ed. (y) Stat. 20 & 21 Vict. c. 57. 
 
 (») Eohhj V. Allen, V.-C. (-) Stat. 3 & 4 Will. IV. c. 74. 
 
 Knight Bruce, 15 Jur. 835; S. See Principles of the Law of Real 
 
 C. nom. Bohhxj v. CoUim, 4 Do Property, p. 233, 13th ed. ; 245, 
 
 Gex & S. 289. Uth ed. 
 
 {x) Sugd. Real Property Sta- («) Ante, p. 571. 
 
 tutes, p. 240, 1st ed. ; p. 233, 2nd .(*) See Williams's Conveyanc- 
 
 ed. ; Briggs v. Chamberlain, 11 ing Statutes, p. 396, and the au-
 
 582 OF PERSONAL ESTATE GENERALLY. 
 
 common law, a liusband was liable to be sued jointly 
 with his wife, during the continuance of her coverture, 
 in respect of all contracts made by her before mar- 
 riage ((?), and all torts (rf) committed by her either 
 before or during the marriage (c) . He might thus be 
 made answerable for all the debts and Habilities of his 
 wife, contracted previously to her marriage (/). But 
 if judgment for any such debt, or in respect of any 
 such liability, were not recovered during the continu- 
 ance of the marriage, the husband's liability ceased, 
 except to the extent of the assets to which he might be 
 entitled as his wife's administrator (^) ; and if the wife 
 survived she again became solely liable {h) . The hus- 
 band'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 recovered (?). 
 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 (A-), as we have seen (/). 
 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 {m). 
 
 Fraud on tho The burdens with which the husband was thus charge- 
 husband's 
 
 thorities cited in notes (A) (i) {h) See Williams's Conveyanc- 
 
 thereto. For the exceptions to ing Statutes, 399, 432, 433. 
 
 this rule, see ibid. pp. 396—398, (i) See ibid., pp. 399, 400, 401, 
 
 (c) See ibid. pp. 432—436. 433, and n. («). 
 
 {d) Ante, p. 100. {k) See ibid., p. 456. 
 
 (e) See Williams's Conreyanc- [J) Ante, p. 575. 
 
 ing Statutes, 399 ct scq. {m) See Manby v. Scott, 1 Sid. 
 
 (/) 2 Eoper's Husband and 109, 120, 124, 125; S. C, 2 
 
 Wife, 73 ; Palmer v. Wakefeld, Smith, L. C. 450, 467, 473—475, 
 
 3 Beav. 227 ; Luard's case, 1 De 8th ed. ; Bayley, J., Montague v. 
 
 Gex, F. & J. 533. Benedict, 3 B. & C. 631, 635 ; 
 
 {g) Beard v. Stamford, 3 P. Bramwell, L. J., Debcnham v. 
 
 Wms. 409 ; ante, p. 575. See Mellon, 5 Q. B. D. 394, 398 ; 
 
 Williams's Conveyancing Sta- Selborne, C, S. C, 6 App. Cas. 
 
 tutes, 399, 400, 433, 454. 24, 31 ; Blackburn, L. A., ibid. 
 
 35, 36.
 
 OF THE MUTUAL IIIGHTS OF JIUSHANJ) AKl) AVIFE. 583 
 
 able were regarded as the consideration which he paid for marital 
 his marital rights in his wife's property. It was there- ^^°'^ ^' 
 fore a rule of law, that the husband should not, pre- 
 viously to the man'iage, bo defrauded of those rights 
 by his intended wife(;/). Accordingly, if the wife, 
 after an engagement to marrj'-, assigned away any of 
 her property without the knowledge and consent of her 
 intended husband, such assignment was void, as a fraud 
 on his marital rights (o). And the circumstance of the 
 intended husband's being ignorant of her possession of 
 the property in question was immaterial (^;). 
 
 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- rizehis'wifeto 
 time, might be waived by his giving her authority to dispose of her 
 dispose of such estate, or any part of it, by her will ; estate by her 
 and such a will was valid and binding on the husband 
 if he once allowed it to be proved {q). 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 bind- 
 ing on the wife's next of kin (r) . 
 
 So far we have mainly considered the rights aris- Wife's sepa- 
 ing out of the relation of husband and wife at common equity, 
 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 (.s). 
 Besides this right, the jurisdiction of the Court of 
 
 («) Coiaiicss of Strathmore v. (;;) Goddard v. Smic, 1 Kuss. 
 
 Bowes, 1 Ves. jun. 22, 28. 485. 
 
 (o) England v. Downs, 2 Bcav. {q) 1 liop. Husb. and Wife, 
 
 522; Taylor v. Pugh, 1 Hare, 1G9, 170. 
 
 QQ^; r-ridcauxx. Lonsdale, 'iCfin. {>■) 15 Ves. 156; Xoble v. 
 
 159 ; affirmed, 1 Dc Gex, Jones inilock, L. R., 8 Ch. Ap. 778; 
 
 & Smith, 433 ; Doiaies v. Jen- affirmed, L. R., 7 H. of L., E. & 
 
 ninffs, 32 Beav. 290. I. 580. 
 
 (s) Ante, pp. 570 — 578.
 
 584 OF PERSONAL ESTATE GENERALLY. 
 
 Chancery scciu'ed to married women otlier most import- 
 ant equitable rights (/) in respect of property {u). For 
 that Court enabled a married woman to enforce a trust 
 imposed on any person with regard to property of any 
 kind, of which he was the legal owner, to hold and 
 apply the same for her separate use (x). And in that 
 Court she was considered as a feme sole mth respect to 
 her separate estate, as her interest in property settled 
 on trust for her separate use was generally called (y). 
 Power to dispose of the equitable interest (z) 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 pro- 
 perty without her husband's concurrence, either in her 
 lifetime or by her will {a) . But if she died in his life- 
 time without having made any disposition, her husband 
 became entitled to it either in his marital right (b) or 
 as her administrator (c), according as the property were 
 in possession or in action (d). 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 {e), 
 
 [t) See ante, p. 570, note {e). 388. 
 
 (k) See James, L.J., Ashicorth {a) Fettiplace v. Gorges, 1 Ves. 
 
 V. Outram, 5 Ch. D. 923, 941. jun. 46 ; S. C, 3 Ero. C. C. 8 ; 
 
 [x) Bennet v. Davis, 2 P. "W. 2 Eop. Husb. and Wife, 182. 
 
 316. See Williams's Conveyanc- {b) Moloni/ v. Kemiedtj, 10 Sim. 
 
 ing Statutes, 374, 396. 254 ; Tugman v. Roplcins,^ Man. 
 
 (y) See Johnson v. Gallagher, & Gran. 389. 
 
 3 De Ges, F. & J. 494 ; Taylor v. (c) Watt v. Watt, 3 Ves. 246, 
 
 Meads, 4 De Gex, J. & S. 597. 247 ; Froudley v. Fielder, 2 My. 
 
 [z) As to the natiu'eof anequit- & Keen, 57. 
 
 able interest in property, see Prin- {d) See Williams's Con veyanc- 
 
 ciplesof the Law of Real Property, ing Statutes, 452 — 454. 
 
 p. 163 et seq., 225, 13th ed.; 167 {e) Lee v. Frieaux, 3 Bro. 0. 
 
 et seq., 237, 14th ed. ; WiUiams's C. 381. 
 Conveyancing Statutes, 374, 386 —
 
 OF TTIE MUTUAL RIGHTS OF IIUSHAND AND ^^TFE. 585 
 
 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 context (./'). And a gift to a woman for her own 
 use {g), or to be paid into her proper hands (//), or even 
 to be paid into her proper hands for her own proper 
 use and benefit (/), was not sufficient to exclude the 
 rights of her husband. 
 
 A simple gift of property for a married woman's Gifts of in- 
 separate use has not been so usual as the gift of the ^^an'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 to a woman's separate use 
 might be made either after her marriage, or in con- 
 templation of marriage, or whilst she was sole ; and 
 the gift might be made either independently of her 
 present husband, if any, or of any future husband. 
 When the gift was made to a woman's separate use, 
 independently of any future husband, 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 as she had before (/) . 
 It has been, however, more usual, when the income Restraint on 
 only of property has been given to a wife's separate -'^^ti^ipation. 
 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 
 
 (/) Massy V. Hayes, Jj. 3., Ire- 491; Kois'mgton v. Dollond, 2 
 
 land, 15 W. R. 376; affirmed Myl. & Keen, 181. 
 in the House of Lords, IG July, (/*) Tyler v. Lake, 2 Russ. & 
 
 1869, Law Rep., 4 II. of L. 288 ; Myl. 183. 
 
 Gilbert V. Leivis, 1 De Gex, J. & (J) lUacJdoic v. Laus, 2 Hare, 
 
 S. 38. See Seton on Decrees, 49. 
 
 690, 4th ed., and the oases there (/.) TuUett v. Armstrong, 1 
 
 cited ; mand v. Daivcs, 17 Ch. D. Beav. 1 ; 4 Myl. & Cr. 390 ; Scar- 
 
 794. horoiigh v. Borman, 1 Beav. 34 ; 
 
 [g) Moherts v. Spicer, 5 Madd. 4 Myl. & Cr. 377.
 
 58G OF PERSONAL ESTATE GENERALLY. 
 
 invalid, us being contrary to tlie 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 de- 
 priving the wife herself of the power of disposition {I ) . 
 When the income of property 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 {»/) . Previously to or in con- 
 templation 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 fui'ther power 
 than that of receiving the income as it grew due {ii) . On 
 her widowhood her power of alienation again revived (o) ; 
 but it ceased on her second marriage without having 
 previously made any disposition (p), provided the re- 
 striction on alienation were not, by the terms of the 
 gift, confined to her first marriage (q) . The intention 
 to restrain alienation 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 (/-), 
 or on her personal appearance and receipt (s), was held 
 not to be sufB.cient to restrain her from disposing of her 
 interest, the words being considered as intended only to 
 
 (l) Brandon v. Rohinson, 18 603. 
 
 Ves. 434 ; JRobinson v. Wheel- (p) Tulldt v. Armstrong, ubi 
 
 ivright, 6 De Gex, M. & Gr. 535. supra ; Ee Gaffee, 1 Mac. & Gor. 
 
 {m) Woodmeston v. Walker, 2 541; Hawkes y. IIitbhacJc,'M.'R.; 
 
 Euss. & My]. 197; Urotcn v. To- 19 W. K. 117; Law Eep., 11 
 
 cock, 2 Russ. & Myl. 210. Eq. 6. 
 
 {n) Ttillett V. Armstrong, 1 {q) Moore y. Morris, 4 Drew. 
 
 Beav. 1 ; 4 Myl. & Cr. 390 ; Scar- 33. 
 
 borough v. Borman, 1 Beav. 34 ; (?•) Acton v. White, 1 Sim. & 
 
 4 Myl. & Cr. 377; Clive v. Careu; Stu. 429. 
 
 1 John. & H. 199. («) Ross's Trust, 1 Sim., N. S. 
 
 (o) Barton v. Briscoe, Jacob, 196.
 
 OF THE MUTUAL KIGIITS OF HUSBAND AND WlFli. 587 
 
 exclude the marital claims of her husband. But if an 
 intention could be collected from the terms of the instru- 
 ment, 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 {/). 
 A restraint on anticipation may be attached to a gift of Restraint on 
 
 ■ I p p T p I^ 1 c 1 anticipation 
 
 the corpus oi some fund, oi the nature oi personal attached to 
 
 estate, for the separate use of a married woman, so as to ^i^*' o^ coriras 
 
 CT . iPT ^ • "^ property. 
 
 prevent her from alienatmg the fund, or the income 
 
 thereof, during her covertiu'o, otherwise than by will. 
 
 But if a mere fund of money, not producing 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 will be entitled to have the money paid 
 
 to her, and to dispose thereof as she may think fit {ii). 
 
 By the common law, a married woman was, as a Contract by 
 general rule, incapable of entering into a contract, and ™^'^"<^*l 
 any contract, which she purported to make, was void. 
 In equity, however, a married Avoman had power to bind 
 any separate estate (,r), to which she was entitled icithout 
 restraint on anticipation, by any general pecuniary General en- 
 engagements made by her with reference to such ffu^{i™^^scpa- 
 separate estate. And satisfaction of any such engage- rate estate, 
 ment could be enforced in a Com't of Equity out of any 
 separate estate, to which she was entitled, without 
 
 {() Broivn v. Bamford, 1 Phil. 8 Ch. D.^460 ; Re Clarke's Trusts, 
 
 620 ; Moore v. Moore, 1 CoU. 54 ; 21 Ch. D. 748 ; Re Bown, O'Ual- 
 
 Harrop v. Howard, 3 Hare, 624; loran v. King, C. A., 22 July, 
 
 Harnett v. MacdongaU, 8 Bear. 1884; W. N. 1884, p. 178; 28 
 
 187 ; Field v. Evans, 15 Sim. 375; Sol. J. 690. As to the effect of a 
 
 Balccr y. Bradley, 7 De Gex, M. restraint on anticipation attached 
 
 & G. 597 ; Gouldcr v. Camm, 1 De to a gift of real estate of inherit- 
 
 Gex, F. & J. 146. ance, see Baggoit v. Meux, 1 Ph. 
 
 ill) See Re Ellis' i Trusts, L. R., 627. 
 
 17 Eq. 409; Re Croughton''s Trusts, (.r) Sec ante, p. 584,
 
 588 OF PERSONAL ESTATE GENERALLY. 
 
 restraint on anticipation, at the time wlien she entered 
 into the engagement {//). 
 
 Powers. In addition to trusts for separate use, powers of 
 
 appointment might, as wo have seen (s), 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 (a) ; and 
 any appointment under a general power might be made 
 by a married woman in favour of her husband, as well 
 as of any other person. 
 
 Married "We have now examined the position of husband and 
 
 Property Act ^i^® ^^ commou law, and the rights secm-ed to married 
 1870. women by the rules of equity. Some special rights, of 
 
 a somewhat anomalous character, were conferred on 
 married women by the enactments of the Married 
 Women's Property Act, 1870 {h), which are stated 
 below. This Act is now repealed ; but it is provided 
 that such repeal shall not aifect any right acquired 
 while the Act was in force (c). So that the intending 
 legal practitioner (unfortunately for him) can scarcely 
 dispense with some knowledge of its provisions. 
 
 (Sect. 1.) The wages and earnings of any married 
 woman acquired or gained by her after the passing of 
 this Act (d) in any employment, occupation, or trade, 
 in which she is engaged or which she carries on sepa- 
 rately from her husband, and also any money or pro- 
 perty so acquired by her through the exercise of any 
 literary, artistic, or scientific skill, and all investments 
 of such wages, earnings, money, or property, shall be 
 deemed and taken to be property held and settled to 
 
 {!/) See Williams's Conveyanc- (h) Stat. 33 & 34 Vict. c. 93. 
 
 ing Statutes, pp. 393, 394, 414, (c) By stat. 45 & 46 Vict. c. 75, 
 
 and the cases there cited ; and s. 22 ; see "Williams's Convey- 
 
 see p. 395. ancing Statutes, 449. 
 
 (z) Ante, pp. 436, 437. (d) The Act passed 9th Aug., 
 
 («) See Appendix B. 1870.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 589 
 
 lier separate use, independent of any husband to whom 
 she may be married, and her receipts alone shall bo a 
 good discharge for such wages, earnings, money, and 
 
 property ((")• 
 
 (Sect. 7.) Where any woman married after the pass- 
 ing of this Act shall during her marriage become en- 
 titled to any personal property as next of kin or one 
 of the next of kin of an intestate, or to any sum of 
 money not exceeding 200/. under any deed or will, such 
 property shall, subject and without prejudice to the 
 trusts of any settlement affecting the same, belong to 
 the woman for her separate use, and her receipts alone 
 shall be a good discharge for the same (./'). 
 
 (Sect. 8.) Where any freehold, copyhold or cus- 
 tomarj^hold property shall descend upon any woman 
 married after the passing of this Act as heiress or co- 
 hehoss of an intestate, the rents and profits shall, sub- 
 ject and without prejudice to the trusts of any settle- 
 ment affecting the same, belong to such woman for her 
 separate use, and her receipts alone shall be a good dis- 
 charge for the same {g). 
 
 By sect. 2, it was declared that any deposit thereafter 
 made and any annuity granted under stat. 10 Greo. IV. 
 c. 24, or any of the Acts relating to savings banks and 
 post office savings banks, in the name of a married 
 woman, or in the name of a woman who might many 
 after such deposit or grant, should be deemed to be the 
 separate property of such woman, and that the same 
 should be accounted for and paid to her as if she were 
 an unmarried woman. 
 
 By sect. 3, any married woman, or any woman about 
 to be married, might apply to have any sum forming 
 
 [e) See Ashworth v. Oittram, 5 (/) Sec Howard v. Bank of 
 
 Ch. D. 923; Ee Poole's Estate, 6 England, L. R., 19 Eq. 295; Re 
 Ch. D. 739; Lovell v. Newton, Tow, 13 Ch. D. 501. 
 4 C. P. D. 7. (5') See Jessol, M. R., Re Voss, 
 
 13 Ch. D. 504, 505.
 
 590 OF PERSONAL ESTATE GENERALLY. 
 
 part of the public stocks and funds, and not being less 
 than 20/., transferred to or made to stand in her name 
 or in her intended name as a married woman entitled 
 to her separate use ; and it was declared that any sum 
 so standing in the name of a married woman should be 
 deemed to be the separate property of such woman, and 
 should be transferred and the dividends paid as if she 
 were an unmarried woman {//). 
 
 Sect. 4 gave to any married woman or woman about 
 to be married the right to apply to have any fully 
 paid-up shares, or any debenture or debenture stock, 
 or any stock of any incorporated or joint stock com- 
 pany, to the holding of which no liability was attached, 
 and to which she was entitled, registered in her name, 
 or intended name, as a married woman entitled to her 
 separate use, and to have such shares or stock so regis- 
 tered accordingly (i) . And it was declared by sect. 4 
 that the same, upon being so registered, should be 
 deemed to be the separate property of such woman, 
 and should be transferred and the dividends and proJBts 
 paid as if she were an unmarried woman. 
 
 Sect. 5 gave to any married woman or any woman 
 about to be married the right to apply to have any 
 share, benefit, debentm^e, right or claim whatsoever in, 
 to or upon the funds of any industrial and pro^dclent 
 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 debentm-e no 
 liability was attached, and to which she was entitled, 
 entered in the books of the society in her name or in- 
 tended name as a married woman entitled to her sepa- 
 rate use, and to have the same so entered accordingly. 
 
 (/() See He Butlhi's Trusts, 19 s. 19; 42 & 43 Vict. c. 43, s. 10. 
 W. E.. 241; Soivard v. Bank of (i) See i?. v. Carnatic Hail. Co., 
 
 England, L. R., 19 Eq. 295. L. R., 8 Q. B. 299. 
 And see stats. 40 & 41 Vict. c. 51,
 
 OF THE MUTUAL RIGHTS OF IIUSHAND AND WIFE. 691 
 
 And it was declared by sect. 5 tliat thereupon sucli 
 share, benefit, debenture, right or claim should be 
 deemed to bo the separate property of such woman, 
 and sliould be transferable and payable, with all 
 dividends and profits thereof, as if she were an un- 
 married woman. 
 
 (Sect. 11.) A married woman may maintain an action 
 in her own name for the recovery of any wages, earn- 
 ings, money, and property by this Act declared to be 
 her separate property, or of any property belonging to 
 her before marriage, and which her husband shall, by 
 writing under his hand, have agreed with her shall 
 belong to her after her marriage as her separate pro- 
 perty ; and she shall have in her own name the same 
 remedies, both civil and criminal, against all persons 
 whomsoever for the protection and security of such 
 wages, earnings, money, and property, and of any 
 chattels or other property purchased or obtained by 
 means thereof for her own use, as if such wages, earn- 
 ings, money, or property belonged to her as an un- 
 married woman ; and in any indictment or other 
 proceeding it shall be sufiicient to allege such wages, 
 earnings, money, chattels, and property to be her 
 property {k). 
 
 The provisions of the Act respecting life insurance 
 by or for the benefit of married women have been 
 already stated {/). It was held that this Act did not 
 confer on a married woman any general capacity to bind 
 herself by contract, or to hold property, independently 
 of her husband, at late [m). The Act rendered a wife, 
 having separate property, liable to an order of justices 
 for the maintenance of her husband, if ho became 
 chargeable to any union or parish {it) ; and subjected 
 
 (/t) See Summers v. Citij Bank, (/) Scot. 10 ; ante, pp. 298, 299. 
 
 L. R., 9 C. P. 580 ; Jessel, M. R., (;«) See Williams's Conveyanc- 
 
 Iloward v. Bank of Englmul, L. iug Statutes, 377 — 382. 
 
 R., 19 Eq. 295, 300, 301. («) Sect. 13.
 
 592 OF PERSONAL ESTATE GENERALLY. 
 
 lier to the same liability as a widow for the maintenance 
 of her children (o). 
 
 Liabilities of We have already noticed the liability of the husband 
 under Married ^t common law in respect of contracts made and torts 
 Women's committed by the wife before marriage (7;). In this 
 Acts, 1870 respect the liability of Imsbands married on or after the 
 and 1S74. g^^ ^^ August, 1870, was modified by the following 
 section of the Married Women's Property Act, 1870 (q). 
 And the liability of husbands, who were married on or 
 after the oOth of July, 1874, was placed on a new foot- 
 ing by an amending Act of the year 1874 (r), of which 
 the provisions are also quoted. 
 
 (Act of 1870, sect. 12.) A husband shall not, by 
 reason of any marriage which shall take place after this 
 Act has come into operation (.s), be liable for the debts 
 of his wife contracted before marriage, but the wife shall 
 be liable to be sued for, and any property belonging to 
 her for her separate use shall be liable to satisfy such 
 debts as if she had continued unmarried {f) . 
 
 (Act of 1874, sect. 1.) So much of the Married 
 Women's Property Act, 1870, as enacts that a husband 
 shall not be liable for the debts of his wife contracted 
 before marriage is repealed so far as respects marriages 
 which shall take place after the passing of this Act {u), 
 and a husband and wife married after the passing of 
 this Act may be jointly sued for any such debt(^r'). 
 (Sect. 2.) The husband shall in such action and in 
 
 (0) Sect. 14. £ank v. Mi/le, 7 Q. B. D. 337 ; 
 
 {p) Ante, pp. 581, 582. Mercicr v. Williams, 9 Q. B. D. 
 
 Iq) Stat. 33 & 34 Vict. c. 93. 337 ; Williams's Conveyancing 
 
 {>■) Stat. 37 & 38 Vict. c. 50. Statutes, 436. 
 See Williams's Conveyancing («) The Act passed 30tli July, 
 
 Statutes, 436, n. {q), 442, 443. 1874. 
 
 (s) The Act passed 9th Aug., (.*•) See Meixier v. WilUams, 9 
 
 1870; see sect. 15. Q. B. D. 337; Williams's Con- 
 
 {t) See Sanger v. Sanger, L. R., veyancing Statutes, 438, 439. 
 11 Eq. 470 ; London and Provincial
 
 OF THE MUTUAL Hir;HlS oi-' IlUSlt.Wl) AXD WIFE. 503 
 
 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, be liable for the debt or damages 
 resjiectively to the extent only of the assets hereinafter 
 specified (//) : and in addition to any other plea or pleas 
 may plead that he is not liable to pay the debt or 
 damages in respect of any such assets as hereinafter 
 specified; or, confessing his liability to some amount, 
 that he is not liable beyond what he so confesses ; and 
 if no such plea is pleaded the husband shall be deemed 
 to have confessed his liability so far as assets are con- 
 cerned (;:). 
 
 (Sect. 3.) If it is not found in such action that the 
 husband is liable in respect of any such assets, he shall 
 have judgment for his costs of defence, whatever the 
 result of the action may be against the "vvife. 
 
 (Sect. 4.) When a husband and wife are sued jointly, 
 if by confession or otherwise it appears that the husband 
 is liable for the debt or damages recovered, or any part 
 thereof, the judgment to the extent of the amount for 
 which the husband is liable shall be a joint judgment 
 against the husband and wife, and as to the residue, if 
 any, of such debt or damages, the judgment shall be 
 a separate judgment against the wife. 
 
 (Sect. 5.) The assets in respect of and to the extent 
 of which the husband shall in any such action be liable 
 are as follows : — 
 
 (1) The value of the personal estate in possession 
 
 of the wife, which shall have vested in the 
 husband : 
 
 (2) The value of the choses in action of the wife 
 
 which the husband shall have reduced into 
 possession, or which with reasonable diligence 
 he might have reduced into possession : 
 
 (//) See Le Greuchy v. Willi, 4 {z) See Matthens v. Trhittk, 13 
 
 C. P. D. 362. Ch. D. 811. 
 
 w.p.r. Q Q
 
 594 
 
 OF PERSONA]. ESTATE GENERALLY. 
 
 (3) The valuQ of the chattels real of tlio wife which 
 
 shall have vested in the husband and wife : 
 
 (4) The value of the rents and profits of the real 
 
 estate of the wife which the husband shall 
 have received, or with reasonable diligence 
 might have received : 
 
 (5) The value of the husband's estate or interest in 
 
 any property, real or personal, which the 
 wife in contemplation of her marriage with 
 him shall have transferred to him or to any 
 other person : 
 
 (6) The value of any property, real or personal, 
 
 which the wife in contemplation of her mar- 
 riage with the husband shall, with his con- 
 sent, have transferred to any person with the 
 view of defeating or delaying her existing 
 creditors : 
 Provided that when the husband after marriage pays 
 any debt of his wife, or has a judgment bond fide 
 recovered against him in any such action as is in this 
 Act mentioned, then to the extent of such payment or 
 judgment the husband shall not in any subsequent 
 action be liable (r/). 
 
 The above enactments of the Acts of 1870 and 1874 
 were repealed by the Act of 1882 ; but the liability of 
 husbands married before the 1st of January, 1883, in 
 respect of their wives' ante-nuptial contracts and torts 
 is not affected by such repeal (i). 
 
 Man-ied 'W'e now come to the consideration of Married 
 
 Property Act, Women's Property Act, 1882 (c), which came into 
 
 1882. operation on the 1st of January, 1883 id). This Act 
 
 has been framed in a manner which leaves much to be 
 
 («) See Tear v. Casth-, 8 Q. B. 
 D. 380. 
 
 (i) See Stat. 45 & 46 Vict. c. 75, 
 ss. 14, 22; Williams's Convey- 
 
 ancing Statutes, pp. 442—444, 
 449. 
 
 (c) Stat. 45 & 46 Vict. c. 75. 
 
 {d) Sect. 25.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 595 
 
 desired ; and some difficult questions are raised by the 
 wording of it. In a work like the present, however, 
 it is scarcely possible to do more than state the provisions 
 of the Act. The reader will find their effect discussed 
 in the notes to the Act contained in the editor's " Con- 
 veyancing Statutes" (e). The following enactments deal 
 generally with the subject of the holding of property by 
 married women : — 
 
 (Sect. 1, sub-s. 1.) A married woman shall, in ac- Married 
 cordance with the provisions of this Act, be capable of ^p^|]!i^ °f ^ 
 acquiring, holding, and disposing by will or otherwise, holding pro- 
 of any real or personal property (./') as her separate temo sole. 
 property, in the same manner as if she were a, feme sole, 
 without the intervention of any trustee. 
 
 (Sect. 2.) Every woman who marries after the com- Property of a 
 mencement of this Act shall bo entitled to have and to ^ied after the 
 hold as her separate property and to dispose of in man- ^^\^° ^*^ ^^^^^ 
 ner aforesaid all real and personal property which shall feme sole, 
 belong to her at the time of marriage, or shall be ac- 
 quired by or devohe upon her after marriage, including 
 any wages, earnings, money and property gained or 
 acquired by her in any cmplojanent, trade or occupation, 
 in which she is engaged, or which she carries on sepa- 
 rately from her husband, or by the exercise of any 
 literarj^ artistic, or scientific skill. 
 
 (Sect. 5.) Every woman married before the com- Property ac- 
 mencement of this Act shall be entitled to have and the Act by a 
 to hold and to dispose of in manner aforesaid as her ^y^™'^",™'*^; 
 
 ^ ried beiorc the 
 
 separate property all real and personal property, her Act to be held 
 title to which, whether vested or contingent, and whether f Ju^^^goig * 
 in possession, reversion, or remainder, sliall accrue after 
 the commencement of this Act, including any wages, 
 earnings, money, and property so gained or acquired 
 by her as aforesaid. 
 
 {e) "Williams's Couveynncing- (/) The word "property" in 
 
 Statutes, pp. 373 et seq. this Act includes a thing in ac- 
 
 tion ; sect. 24. 
 
 qq2
 
 596 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Saving of 
 existing set- 
 tlements, and 
 the power to 
 make future 
 settlements. 
 
 Restraint on 
 anticipation. 
 
 (Sect. 19.) Nothiug in tins Act coutaiiied shall inter- 
 fere 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, 
 or shall interfere with or render inoperative any restric- 
 tion against anticipation {g) at present attached or to be 
 hereafter attached to the enjoyment of any property or 
 income by a woman under any settlement, agreement 
 for a settlement, will, or other instrument ; but no re- 
 striction against anticipation contained in any settle- 
 ment or agreement for a settlement of a woman's own 
 property to be made or entered into by herself shall 
 have any validity against debts contracted by her be- 
 fore marriage, and no settlement or agreement for a 
 settlement shall have any greater force or validity 
 against creditors of such woman than a like settlement 
 or agreement for a settlement made or entered into by 
 a man would have against his creditors iji). 
 
 The Act appears to confer upon all married women 
 a general capacity to acquire and exercise legal rights (/) 
 of ownership in respect of property, which becomes theii' 
 separate property by virtue of this Act (k) . But, ex- 
 cept in respect of such property, married women, whose 
 marriage took place before the first of January, 1883, 
 still remain subject to the previous law (/). It will be 
 observed that a restraint against anticipation may be 
 attached to the enjoyment by a married woman of any 
 property or income {ni), to which she ^vill become en- 
 titled as her separate property by virtue of this 
 Act («). 
 
 As to the in- 
 terest of a 
 
 The following enactments relate to the interest of a 
 
 {ff) See ante, pp. 585 — 587. 
 
 (/«) See ante, pp. 471 — 473. 
 
 (i) See a?ite, p. 570, n. (e) ; and 
 compare pp. 570, 571, 584, 591, 
 a»fr. 
 
 {k) See WiUiams's Conveyanc- 
 ing Statutes, 382—392. 
 [1) See ibid., pp. 421, 422. 
 {>n) See ante, pp. 585 — 587. 
 {)/) See Appendix B.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AN]) WIFE. 597 
 
 married woman in deposits in banks, annuities, stocks married 
 and shares:— woman in 
 
 deposits m 
 
 (Sect. 6.) All deposits in any post office or other bauks, annm- 
 savings bank, or in any other bank, all annuities granted aud shares!' 
 by the Commissioners for the Reduction of tlie National 
 Debt or by any other person, and all sums forming part 
 of ihe public stocks or funds, or of any other stocks or 
 funds transferable in the books of the Grovernor and 
 Company of the Bank of England, or of any other bank, 
 which at the commencement of this Act are standing in 
 the sole name of a married woman, and all shares, stock, 
 debentures, debenture stock, or other interests of or in 
 any corj)oration, company, or public body, municipal, 
 commercial, or otherwise, or of or in any industrial, pro- 
 vident, friendly, benefit, building, or loan society, which 
 at the commencement of this Act are standing in her 
 name (o), shall be deemed, unless and until the contrary 
 be shown, to be the separate property of such married 
 woman ; and the fact tliat any such deposit, annuity, 
 sum forming part of the public stocks or funds, or of 
 any other stocks or funds transferable in the books of 
 the Governor and Company of the Bank of England or 
 of any other bank, share, stock, debenture, debenture 
 stock, or other interest as aforesaid, is standing in the 
 sole name of a married woman, shall be sufficient prima 
 facie evidence that she is beneficially entitled thereto 
 for her separate use, so as to authorize and empower 
 her to receive or transfer the same, and to receive the 
 dividends, interest, and profits thereof, without the con- 
 currence of her husband, and to indemnify the Post- 
 master-general, the Commissioners for the deduction of 
 the National Debt, the Governor and Company of the 
 Bank of England, the Governor and Company of tlio 
 Bank of Ireland, and all directors, managers, and trus- 
 
 (o) See attic, pp. o89 — o91.
 
 598 or PEiisoxAi. esiate generally. 
 
 tees of every such bank, corporation, company, public 
 body, or society as aforesaid, in respect thereof (p). 
 
 (Sect. 7.) All sums forming part of the public stocks 
 or funds, or of any other stocks or funds transferable in 
 the books of the Bank of England or of any other bank, 
 and all such deposits and annuities respectively as are 
 mentioned in the last preceding section, and all shares, 
 stock, debentiu'es, debenture stock, and other interests 
 of or in any such corporation, company, public body, or 
 society as aforesaid, which after the commencement of 
 this Act shall be allotted to or placed, registered, or 
 transferred in or into or made to stand in the sole name 
 of any married woman shall be deemed, imless and 
 until the contrary be shown, to be her sej^arate pro- 
 perty, in respect of which so far as any liability may be 
 incident thereto her separate estate shall alone be liable, 
 whether the same shall be so expressed in the document 
 whereby her title to the same is created or certified, or 
 in the books or register wherein her title is entered 
 or recorded, or not. 
 
 Provided always, that nothing in this Act shall re- 
 quire or authorize any corporation or joint stock com- 
 pany 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, byelaw, articles of association, or 
 deed of settlement regulating such corporation or com- 
 pany {q). 
 Investments (Sect. 8.) All the provisions hereinbefore contained 
 
 in ioint names i i -j. • ; ro j_i • i i 
 
 of married ^^ ^0 dcposits in any post othce or other savings bank, 
 women and or in any other bank, annuities granted by the Com- 
 missioners for the Reduction of the National Debt, or 
 by any other person, sums forming part of the public 
 stocks or funds, or of any other stocks or funds trans- 
 
 {p) See Williams's Conveyanc- (q) See Williams's Conveyanc- 
 
 ing Statutes, 423. ing- Statutes, 424—426.
 
 OF THE MUTUAL lllGHTS OF IIUSHAXD AM) WIFE. 599 
 
 ferablo in the books of the Bank of England or of any- 
 other bank, shares, stock, debentures, debenture stock, 
 or other interests of or in any such corporation, com- 
 pany, public body, or society as aforesaid respectively, 
 which at the commencement of this Act shall be stand- 
 ing in the sole name of a married woman, or which, 
 after that time, shall be allotted to, or placed, regis- 
 tered, or transferred to or into, or made to stand in, the 
 sole name of a married woman, shall respectively ex- 
 tend and apply, so far as relates to the estate, right, 
 title, or interest of the married woman, to any of the 
 particulars aforesaid which, at the commencement of 
 this Act, or at any time afterwards, shall be standing 
 in, or shall be allotted to, plac^l, registered, or trans- 
 ferred to or into, or made to stand in, the name of any 
 married woman jointly with any persons or person 
 other than her husband. 
 
 (Sect. 9.) It shall not be necessary for the husband Husband need 
 of any married woman, in respect of her interest, to ^"ansfer.^^ 
 join in the transfer of any such annuity or deposit as 
 aforesaid, or any sum forming part of the public stocks 
 or funds, or of any other stocks or funds transferable 
 as aforesaid, or any share, stock, debenture, debentui-e 
 stock, or other benefit, right, claim, or other interest of 
 or in any such corporation, company, public body, or 
 society as aforesaid, which is now or shall at any time 
 hereafter be standing in the sole name of any married 
 woman, or in the joint names of such married woman 
 and any other person or persons not being her hus- 
 band (r). 
 
 The following enactments confer upon married women Contracts by, 
 the capacity of entering into legal contracts (s) in respect a^ains^t, and 
 of their separate propert}^, and of suing and being sued liabilities of 
 
 ■^ married 
 
 ■women. 
 
 {>•) See Williama's Couvej-anc- (s) See ante, pp. 587, 591, 
 
 ing Statutes, 427.
 
 GOO OF PEKSOISrAL ESTATE GENERALLY. 
 
 without tlieir luisbands {t) ; and otherwise regulate their 
 liabilities. 
 
 (Sect. 1, sub-s. 2.) A married woman shall be capable 
 of entering into and rendering herself liable in respect 
 of and to the extent of her separate property on any 
 contract, and of suing and being sued, either 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 brought by or taken 
 against her ; and any damages or costs recovered by her 
 in any such action or proceeding shall be her separate 
 property ; and any damages or costs recovered against 
 her in any such action or proceeding shall be payable 
 out of her separate property, and not otherwise {v) . 
 
 (Sub-s. 3.) Every contract entered into by a married 
 woman shall be deemed to be a contract entered into by 
 her with resj^ect to and to bind her separate property, 
 unless the contrary be shown (x). 
 
 (Sub-s. 4.) Every contract entered into by a married 
 
 woman with respect to and to bind her separate property 
 
 shall bind not only the separate property which she is 
 
 possessed of or entitled to at the date of the contract, 
 
 but also all separate property which she may thereafter 
 
 acquire {//). 
 
 Remedies of (Sect. 12.) Every woman, whether married before 
 
 woman for OT after this Act, shall have in her own name against 
 
 protection and q^i persons whomsoever, includino^ her husband, the 
 security of ■■- . . . ' ° ' 
 
 separate pro- same civil remedies, and also (subject, as regards her 
 ^^^ ^" husband, to the proviso hereinafter contained) the same 
 
 remedies and redress by way of criminal proceedings, 
 for the protection and security of her own separate pro- 
 perty, as if such property belonged to her as a feme sole, 
 
 {t) See ante, p. 581. don v. Wlnslow, C. A., 31st July, 
 
 («<) See Williams's Conveyanc- 1884, 28 Sol. J. 736. 
 
 ing Statutes, pp. 392—414 ; Wei- {.v) See ibid., pp. 414, 415. 
 
 don V. Ncal, 32 W. R. 828 ; Wei- (y) See ibid., pp. 415, 416.
 
 OF THE MUTUAL RIGHTS OF HUSHAND AND WIFE. GOl 
 
 but, except as aforesaid, no husband or wife shall be 
 entitled to sue the other for a tort. In any indictment 
 or other proceeding under this section it shall bo suffi- 
 cient to allege such property to be her property ; and 
 in any proceeding under this section a liusband or wife 
 shall be competent to give evidence against each other, 
 any statute or rule of law to the contrary notwith- 
 standing (~) : Provided alwaj^s, that no criminal pro- 
 ceeding shall be taken by any wife against her husband 
 by virtue of this Act while they are living together, as 
 to or concerning any property claimed by her, nor while 
 they are living apart, as to or concerning any act done 
 by the husband while they were living together, con- 
 cerning property claimed by the wife, imless such pro- 
 perty shall have been wrongfully taken by the husband 
 when leaving or deserting, or about to leave or desert, 
 his wife (a). 
 
 (Sect. 13.) A woman after her marriage shall con- Wife's ante- 
 tinue to be liable in respect and to the extent of her JuSnabflities 
 separate property for all debts contracted, and all con- 
 tracts entered into or -wrongs committed by her before 
 her marriage, including any sums for which she may 
 be liable as a contributory, either before or after she has 
 been placed on the list of contributories, under and by 
 virtue of the Acts relating to joint stock companies; 
 and she may be sued for any such debt and for any 
 liability in damages or otherwise under any such con- 
 tract, or in respect of any such %vrong ; and all sums 
 recovered against her in respect thereof, or for any costs 
 relating thereto, shall be payable out of her separate 
 property ; and, as between her and her husband, unless 
 there be any contract between them to the contrary, her 
 separate property shall be deemed to be primarily liable 
 for all such debts, contracts, or wrongs, and for all 
 damages or costs recovered in respect thereof : Pro- 
 vided alwaj^s, that nothing in this Act shall operate 
 
 (-) See now stat. 47 Vict. c. 14. (<?) Sec Williams's Conveyanc- 
 
 ing- Statutes, pp. 429—432.
 
 602 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Married 
 woman as an 
 executrix or 
 trustee. 
 
 Legal repre- 
 sentative of 
 married 
 woman. 
 
 Liabilities of 
 married 
 woman as 
 trustee or 
 executrix. 
 
 to increase or diminish the liability of any woman 
 married before the commencement of this Aet for any 
 such debt, contract, or wrong, as aforesaid, except as to 
 any separate property to which she may become entitled 
 by vu'tue of this Act, and to which she would not have 
 been entitled for her separate use under the Acts hereby 
 repealed or otherwise, if this Act had not passed (b). 
 
 (Sect. 18.) A married woman who is an executrix or 
 administratrix (c) alone or jointly with any other per- 
 son or persons of the estate of any deceased person, or 
 a trustee alone or jointly as aforesaid of property sub- 
 ject to any trust, may sue or be sued, and may transfer 
 or join in transferring any such annuity or deposit as 
 aforesaid {d), or any sum forming part of the public 
 stocks or funds, or of any other stocks or funds trans- 
 ferable as aforesaid (r/), or any share, stock, debentm-e, 
 debenture stock, or other benefit, right, claim, or other 
 interest of or in any such corporation, company, public 
 body or society, in that character, without her husband, 
 as if she were a feme sole (c). 
 
 (Sect. 23.) For the purposes of this Act the legal 
 personal representative of any married woman shall, in 
 respect of her separate estate, have the same rights and 
 liabilities and be subject to the same jurisdiction as she 
 would be if she were living (_/"). 
 
 By sect. 24, the word " contract " in this Act shall 
 include the acceptance of any trust, or of the office of 
 executrix or administratrix (^), and the provisions of 
 this Act as to liabilities of married women shall extend 
 to all liabilities by reason of any breach of trust or 
 devastavit committed by any married woman being a 
 trustee or executrix or administratrix either before or 
 after her marriage, and her husband shall not be subject 
 
 (b) See Williams's Conveyanc- 
 ing Statutes, pp. 432—442. 
 
 (c) See a>ite, pp. 513, 514. 
 
 (d) See sects. 6 — 9, nnte, pp. 
 097—599. 
 
 (e) See Williams's Conveyanc- 
 ing Statutes, pp. 446, 447. 
 (/) See ibid., pp. 449—460. 
 iff) See ante, pp. 513, 514, 600.
 
 OF THE Ml TUAl- KHUITS OF IIUSliAND AND WIFE. 603 
 
 to such liabilities unless he has acted or iutermeddled 
 in the trust or administration (//). 
 
 (Sect. 4.) The execution of a general power hy Avill (/) Execution of 
 by a married woman shall have the effect of making the by will. ^"^^"^"^ 
 property appointed liable for her debts and other lia- 
 bilities in the same manner as her separate estate is 
 made liable under tliis Act (/.■). 
 
 The provisions of the Act with regard to the liability 
 of married women to be made bankrupt, and as to life 
 insurance by or for the benefit of married women, have 
 been already stated (/). The Act makes a married Liability of 
 woman having separate property liable to an order of jus- "o,"^^ to 
 tices in petty sessions for the maintenance of her husband maintain her 
 out of such separate property, if he becomes chargeable eliiklreu ' and 
 to any union or parish {)ii) ; and subjects her to all such '^^'}^f-' 
 liability for the maintenance of her children and grand- 
 children as the husband is by law subject to {j/). 
 
 The liability of husbands, who were married on or Liabilities of 
 after the 1st of January, 1883 (o), in resi-)ect of con- ^^^^^^'}^^^ 
 
 '' ' , ^ ' ' , -^ , married on or 
 
 tracts made and torts committed by their ^ives before after 1st Jan. 
 
 marriage {p) , is now regulated by the enactments stated ''* 
 below : — 
 
 (Sect. 14.) A husband shall be liable for the debts of Husband to 
 his wife contracted, and for all contracts entered into jJIg witVs"'^ 
 and wrongs committed by her, before marriage, in- ^ebts con- 
 cluding any liabilities to which she may be so subject marriage to a 
 under the Acts relating to joint stock companies as certain extent, 
 aforesaid, to the extent of all property whatsoever 
 belonging to his wife which he shall liave acquired or 
 
 (/i) See "WiUiams's Conveyanc- {»i) Sect. 20 ; see Williams's 
 
 ing Statutes, pp. 460 — 463. Conveyancing Statutes, 448, 449. 
 
 (i) See ante, p. 436. {>/) Sect. 21 ; see ibid., p. 449 
 
 {k) See Williams's Conveyanc- and n. (A), 
 
 ing Statutes, pp. 419 — 421. (o) See Williams's Conveyanc- 
 
 (/) Sects. 1 (sub-sect. 5), 11 ; ing Statutes, pp. 43G n. {q), 463. 
 
 rtnte, pp. 199, 299. {/>) See aiile, pp. o81, 582, 592 
 
 —594.
 
 604 OF PERSONAL ESTATE GENERALLY. 
 
 become entitled to from or through his wife, after 
 deducting therefrom any payments made by him, and 
 any sums for which judgment may liave been J)0)td Jide 
 recovered against him in any proceeding at law, in 
 respect of any such debts, contracts, or wrongs for or in 
 respect of which his wife was liable before her mar- 
 riage as aforesaid ; but he shall not be liable for the 
 same any further or otherwise ; and any Court in which 
 a husband shall be sued for any such debt shall have 
 power to direct any inquiry or proceedings which it 
 may think proper for the purpose of ascertaining the 
 natm'e, amount, or value of such propert}^ : Provided 
 always, that nothing in this Act contained shall operate 
 to increase or diminish the liability of any husband 
 married before the commencement of this Act for or in 
 respect of any such debt or other liability of his wife as 
 aforesaid ( q) . 
 Suits for (Sect. 15.) A husband and wife may be jointly sued 
 
 ?:^*^".^"P*^^^ in respect of any such debt or other liability (whether 
 by contract or for any wrong) contracted or incurred by 
 the wife before marriage as aforesaid, if the plaintiff in 
 the action shall seek to establish his claim, either 
 wholly or in part, against both of them ; and if in any 
 such action, or in any action brought in respect of any 
 such debt or liability against the husband alone, it is 
 not found that the husband is liable in respect of any 
 property of the wife so acquired by him or to which he 
 shall have become so entitled as aforesaid, he shall have 
 judgment for his costs of defence, whatever may be the 
 result of the action against the wife if jointly sued with 
 him ; and in any such action against husband and wife 
 jointly, if it appears that the husband is liable for the 
 debt or damages recovered, or any part thereof, the 
 judgment to the extent of the amount for which the 
 husband is liable shall be a joint judgment against the 
 
 {q) See Williams's Conveyancing Statutes, pp. 442 — 444.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. G05 
 
 husband personally and against the wife as to her 
 separate property ; and as to the residue, if any, of 
 such debt and damages, the judgment shall be a 
 separate judgment against the wife as to her separate 
 property only {r) . 
 
 It is thought that a husband (whatever be the date Husband's 
 of his marriage) is no longer liable to be sued jointly ^ytfc's torts 
 with his wife in respect of any tort committed by her committed 
 
 . 1- . "^ " dunujrmar- 
 
 (luniKj the marriage [s). riag-e. 
 
 The remaining provisions of the Act of 1882 deal Questions of 
 
 . . . . property as 
 
 with the determination of questions relating to property between hus- 
 
 which may arise between husband and wife, or between ^^^ ^^ ^^ 
 
 husband and wife and the husband's creditors : — against hus- 
 
 (Sect. 3.) Any money or other estate of the wife tors. 
 
 lent or entrusted by her to her husband for the purpose Loans by 
 
 p ,, -, • .,,,. , . wife to hus- 
 
 01 any trade or business carried on by mm, or otherwise, band. 
 
 shall be treated as assets of her husband's estate in case 
 
 of his bankruptcy, under reservation of the wife's claim 
 
 to a dividend as a creditor for the amount or value of 
 
 such money or other estate after, but not before, all 
 
 claims of the other creditors of the husband for valuable 
 
 consideration in money or moneys' worth have been 
 
 satisfied. 
 
 (Sect. 10.) If any investment in any such deposit or Fraudulent 
 
 annuity as aforesaid, or in any of the public stocks or ^vi^ji,^^,™li° y 
 
 funds, or in any other stocks or funds transferable as of husband. 
 
 aforesaid (/), or in any share, stock, debentiu'e, or 
 
 debenture stock of any corporation, company, or public 
 
 body, municipal, commercial, or otherwise, or in any 
 
 share, debenture, benefit, right, or claim whatsoever in, to, 
 
 (;■) See Williams's Convej'anc- Wddon v. IVbislow, C. A., Slst 
 
 ing Statutes, pp. 407—410, 432, July, 1884, 28 Sol. J. 736. 
 
 439—441, 443. (0 See sects. G— 9, ante, pp. 
 
 (s) See ibid., pp. 403-405, 407; ■597—599.
 
 GOG 
 
 OF PERSONAL ESTATE GEXERAIJ,Y, 
 
 Criminal pro- 
 ceedings 
 against wife 
 by husband. 
 
 Questions 
 between hus- 
 band and wife 
 as to property 
 to be decided 
 in a summary 
 ■way. 
 
 or upon the funds of any industrial, provident, friendly, 
 benefit, building-, or loan society, shall have been made by 
 a married woman by means of moneys of her husband, 
 without his consent, the Court may, upon an application 
 under section seventeen of this Act, order such invest- 
 ment, and the dividends thereof, or any part thereof, 
 to be transferred and paid respectively to the husband ; 
 and nothing in this Act contained shall give validity, 
 as against creditors of the husband, to any gift, by a 
 husband to his wife, of any property, which, after such 
 gift, shall continue to be in the order and disposition or 
 reputed ownership of the husband («), or to any deposit 
 or other investment of moneys of the husband made by 
 or in the name of his wife in fraud of his creditors ; 
 but any moneys so deposited or invested may be 
 followed as if this Act had not passed (x). 
 
 (Sect. 16.) A •wife doing any act with respect to any 
 property of her husband, which, if done by the husband 
 with respect to property of the wife, woidd make the 
 husband liable to criminal proceedings by the wife 
 under this Act (//) , shall in like manner be liable to 
 criminal proceedings by her husband. 
 
 In any such criminal proceedings against a wife, the 
 husband is now a competent and admissible witness and 
 compellable to give evidence (;:). 
 
 (Sect. 17.) In any question between husband and 
 wife as to the title to or j)ossession of property, either 
 party, or any such bank, corporation, company, public 
 body, or society as aforesaid (a) in whose books any 
 stocks, funds, or shares of either party are standing, 
 may apply by summons or otherwise in a summary way 
 to any judge of the High Court of Justice in England 
 or in Ireland, according as such property is in England 
 
 {u) See ante, pp. 85—87, 232, 
 233. 
 
 {x) See Williams's Conveyanc- 
 ing Statutes, 391, 392, 428. 
 
 (y) See sect. 12, a)ite, p. 600. 
 (z) Stat. 47 Vict. c. 14. 
 (a) See sects. 6 — 9, ante, pp. 
 597—599.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 007 
 
 or Ireland, or (at the option of the applicant irrespec- 
 tively of the value of the property in dispute) in 
 England to the judge of the County Court of the dis- 
 trict, or in Ireland to the chairman of the Civil Bill 
 Court of the division in which either party resides, and 
 the judge of the High Court of Justice or of the County 
 Court, or the chairman of the Civil Bill Court (as the 
 case may he) may make such order with respect to the 
 property in dispute, and as to the costs of and conse- 
 quent on the application as he tliiiiks fit, or may direct 
 such application to stand over from time to time, and 
 any inquiry touching the matters in question to be made 
 in such manner as he shall think fit : Provided always, 
 that an}' order of a judge of the High Court of Justice 
 to be made under the provisions of this section shall be 
 subject to appeal in the same way as an order made by 
 the same judge in a suit pending or on an equitable 
 plaint in the said Court would be ; and any order of a 
 County or Civil Bill Court under the provisions of this 
 section shall be subject to appeal in the same way as 
 any other order made by the same Com-t would be, and 
 all proceedings in a County Court or Civil Bill Coiu-t 
 under this section in which, by reason of the value of 
 the property in dispute, such Court would not have had 
 jurisdiction if this Act or the Married Women's Pro- 
 perty Act, 1870, had not passed, may, at the oj^tion of 
 the defendant or respondent to such proceedings, be 
 removed as of right into the High Court of Justice in 
 England or Ireland (as the case may be) , by writ of 
 certiorari, or otherwise, as may be prescribed by any 
 rule of such High Court ; but any order made or act 
 done in the course of such proceedings prior to such 
 removal shall be valid, unless order shall be made to the 
 contrary by such High Court : Provided also, that the 
 judge of the Pligli Court of Justice or of the County 
 Court, or the chairman of the Civil Bill Com-t, if either
 
 608 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 party so require, may hear any such application in his 
 private room : Provided also, that any such bank, cor- 
 poration, company, public body, or society as afore- 
 said, shall, in the matter of any such application for the 
 purposes of costs or otherwise, be treated as a stake- 
 holder only. 
 
 Husband's 
 liability on 
 contracts 
 made by his 
 Vidfe. 
 
 When husband and "svife are living together, the 
 management of the household is very commonly in- 
 trusted to the wife. And in such cases the wife is 
 generally authorized by the husband to purchase articles 
 of household or family use, and to act as his agent in 
 making such purchases. The husband, like any other 
 principal, is liable in respect of all contracts, which he 
 may have authorized his wife to make on his behalf : 
 but he is not liable in respect of contracts which his 
 wife may have made without his authority (b). When 
 therefore a husband is sued in respect of a contract made 
 by his wife, the principal question to be determined is, 
 whether he gave her authority to contract on his be- 
 half. This is a question of fact for a jury (c). This 
 question may be decided upon evidence that the hus- 
 band expressly authorized his wife so to contract ; or else 
 it may be implied from the circumstances of the ease, 
 that the wafe was invested with such an authority. As 
 a general rule, when an action is brought against any 
 man upon a contract made by his agent, the onus of 
 proving that the contract was made by the agent, as 
 agent for and by the authority of the principal, lies on 
 the party, who brings the action (rf) . But an important 
 exception to this rule occurs in the case of actions 
 
 ih) F. N. B. 120, G. ; Manhy 
 V. Scott, 1 Sid. 109, 120 ; S. C, 
 2 Smith, L. C. 445, 467, 8th ed. ; 
 Etherington v. Tarroit, 1 Salk. 
 118; Montague v. Benedict, 3 B. 
 & C. 673 ; Jolhj T. Rees, 15 C. B. 
 N. S. 628 ; Bebenham v. Mellon, 5 
 
 Q. B. D. 394 ; 6 App. Cas. 24. 
 
 {c) See Freestone v. Butcher, 9 
 Car. & P. 643 ; Lane v. Iron' 
 monger, 13 IJ. & W. 368; ReidY. 
 Teakle, 13 C. B. 627. 
 
 ((f) See Montague v. Benedict, 3 
 B. & C. 631.
 
 OF THE MUTUAL KIGHTS OF HUSJ5AKD AND AVIFE. GOO 
 
 against husbands on contracts madp by their wives. 
 For since tlie husband is bound to maintain the wife 
 and to supply her with necessaries suitable to her station 
 in life (e), wlicn they are living togetlier, a presumption 
 arises that the wife has the husband's authority to 
 pledge his credit for the purchase of necessary articles 
 of household or family use in a manner and to an extent 
 which is usual among people of the same station in 
 life. So that in actions against the husband upon the 
 wife's contract, if it be proved that the husband and 
 wife were living together and that the wife con- 
 tracted for the purchase of such necessaries, the onus 
 is upon tlie husband to adduce evidence to rebut this 
 j)resumption. And it will be rebutted if he prove that 
 he forbade his wife to pledge his credit, or that she 
 was otherwise sufficiently supplied with such necessaries 
 or with money for their purchase (./) . The presump- 
 tion in question can only arise -s^dth regard to neces- 
 saries ; and the question, what are necessaries ? is in 
 each case one of fact for a jury (g). But the husband 
 will, of coui'se, be liable in respect of contracts made by 
 his wife for the purchase of articles which are not 
 necessaries, if the party who seeks to charge him can 
 prove that she was authorized so to contract on his 
 behalf (//). The husband may also be made liable on 
 contracts made by his wife, because he held her out as 
 his agent (/). For instance, if the husband should have 
 been in the habit of paying tradesmen's bills for articles 
 purchased by his wife, and should then revoke the 
 authority given to his wife to pledge his credit, ho may 
 be made liable to pay for articles subsequently ordered 
 
 (e) Ante, p. 582. irayto; L. R., 6 C. P. 38. 
 
 (/) JoUi/ V. Sees; Dcbcnham (/() See Fotli/ v. Anderson, 3 
 
 V. Mellon, ubi sup.; see also Bing. 170; Montague y. Benedict, 
 
 Ecncanx v. Teakle, 8 Ex. 680. 3 B. & C. 631. 
 
 {g) See the cases cited in notes (i) Cf . ante, pp. 495, 499. 
 
 [b), {c) above; and T/iillipson v. 
 
 W.P.P. R K
 
 610 OF PERSONAL ESTATE GENERALLY. 
 
 by his wife, unless the tradesmen should have had notice 
 that the wife's authority was revoked {k) . 
 Wlicn hus- _ The husband is of course liable in respect of all con- 
 are liviuo- tracts made by his wife on his behalf b>/ his autJioyitij 
 apart. while they are living apart, as well as on contracts so 
 
 made while they are living together. But when the 
 husband and wife are living apart, there is no presump- 
 tion of the husband's assent to the wife's contracts for 
 procuring necessaries ; so that the onus lies on the per- 
 son, who seeks to charge the husband, to prove that the 
 husband authorized the wife to contract on his behalf, 
 or to prove circumstances which import the husband's 
 liability {!). For under certain special circumstances 
 the husband is liable upon contracts made by the wife, 
 even though he should have expressly forbidden her to 
 pledge his credit, or given notice to others that he would 
 not be answerable on her contracts. Thus, if the hus- 
 band desert the wife, or turn her out-of-doors, or treat 
 her so cruelly that she is compelled to leave him, she 
 has a right, consequent upon his obligation to maintain 
 her [m), to pledge his credit for procuring necessaries 
 Necessaries, suitable to her station in life (;?). In such cases it 
 appears that " necessaries " will include all such things 
 as it is reasonable that the wife should have under the 
 circumstances (o). The husband may, however, absolve 
 himself from liability in respect of contracts made by 
 his wife for necessaries under the special circumstances 
 described by proving that she is possessed of means, 
 derived either from an allowance made by him or from 
 
 (/i) See Drew v. Kunn, 4 3 Bing-. 127 ; Sunt v. De Blac- 
 
 Q. B. D. G61. Cf. pp. 496, 499, quiere, 5 Bing. 550; Bazeley v. 
 
 ante. Forder, L. R., 3 Q. B. 559, 562. 
 
 [1) Mainwaring v. Leslie, M. & And see Deare v. Soiitten, L. R., 
 
 M. 18; Clifford v. Laton, 3 Car. 9 Eq. 151.. 
 
 & P. 15 ; Johnston v. Sumner, 3 (o) See Wilson v. Ford, L. R., 
 
 H. felSr. 261. 3 Ex. 63; Bazeleij v. Forder, 
 
 (w) Ante, p. 582. L. R., 3 Q,. B. 559, 563, 564 ; 
 
 («) Thompson v. Harvey, 4 Ottaway v, Samilton, 3 C. P. D. 
 
 Burr. 2177; Botdton v. Frentice, 393, 401. 
 2 Str. 1214 ; Eonliston v. Smyth,
 
 OF THE MUTUAL RIOIITS OF HUSBAND AND WIFE. Cll 
 
 separate estate or property of lier own, siifFicient to sup- 
 ply licr with everything she can reasonably roquii-o {p). 
 In such cases the sufficiency of the wife's moans is a 
 question of fact for a jury ((/). If the wife leave the 
 husband against his will and without the excuse of 
 cruelty on his part, or if the husband and wife separate 
 by consent, she has no right to pledge his credit with- 
 out his authority (r) . When husband and wife agree 
 to live apart, he may of course expressly authorize her 
 to contract on his behalf, or such an authority may be 
 implied from the circumstances of the case («). But 
 such an authority cannot be implied when the husband 
 and wife have agreed to separate upon terms which the 
 husband has observed, and one of the terms is, that the 
 wife shall not pledge her husband's credit {t). 
 
 As the Married Women's Property Act, 1882 {a), 
 does not absolve a husband from the obligation of 
 maintaining his wife (.r), it does not appear that that 
 statute takes away the presumption of the husband's 
 assent to his wife's contracts for necessaries while they 
 are living together, or the husband's liability in case he 
 desert or tm'n away his wife, or compel her to leave 
 him. It may be remarked, however, that, since the 
 Act took effect, the wife herself may be sued upon con- 
 tracts made b}^ her; which was not possible before {y). 
 
 (p) See LidcUow v. WUmot, 2 C. B., Johnston v. Si(mncy, 3 H. 
 
 Stark. N. P. 86 ; Holder v. Cope, & N. 261, 267. 
 
 3 Car. & K. 437 ; PoUock, C. B., (0 -»(//'« v. Bignell, 7 H. & N. 
 
 Johnston v. Snmner, 3 H. & N. 877 ; Jwtstland v. Burchell, 3 
 
 261, 266. Q. B. D. 432. As to the case of 
 
 {q) See the same cases ; and a separation by agreement, of 
 
 see Baker v. Sampson, 14 C. B., -which the husband has not ob- 
 
 N. S. 383 ; Eastland v. Bttrchell, served the terms, see Ozard v. 
 
 3 Q. B. D. 432, 436. Larnford, 1 Selwyn, N. P. 229, 
 
 (r) Manbij v. Seott, 1 Sid. 109 ; 13th ed., Knrse v. Craig, 2 Bos. 
 
 Johnston v. Sumner, 3 H. & N. & P., N. E,. 148. 
 
 261, 266-268 ; Eastland v. Bur- («) Stat. 45 & 46 Vict. c. 75. 
 
 ckell, 3 Q. B. D. 432. {x) See ante, p. 582. 
 
 (s) See Emmeit v. Norton, 8 [ij) See ante, pp. 587, 591, 599, 
 
 Can". & P. 506, 511 ; Politick, 600. 
 
 H R 2
 
 612 OF PERSONAL ESTATE GENERALLY. 
 
 And it appears that, if slie be so sued, the onus lies 
 upon her to prove that she contracted as agent for and 
 by the authority of her husband, and not with intent 
 to bind her separate property {z) . 
 
 Separation. Separation between husband and wife is not en- 
 
 couraged by the law. A clause in a marriage settle- 
 ment providing for the event of a separation has been 
 considered to be void [a) ; and so has a condition in a 
 gift of personal estate to a woman living apart from 
 her husband, that the gift shall cease in case she should 
 cohabit with him {h). It is however clear that a deed 
 making provision for an immediate separation between 
 husband and wife is not void for illegality (c) ; and any 
 infringement of the covenants contained in it will be 
 restrained by the injunction of the Court {d). One of 
 the usual provisions of a deed of separation is a cove- 
 nant on the part of some friend of the wife's to indem- 
 nify the husband against any debts she may incur 
 whilst living apart. Such a covenant is a valuable 
 consideration for any settlement which the husband 
 may make for the benefit of his wife, and places such 
 settlement on the same footing as any other alienation 
 made for valuable consideration {e). But if there be 
 no such covenant, nor any other valuable considera- 
 tion (/), a settlement made by a husband on separating 
 
 {z) See ««<<!, p. GOO; Williams's Conveyancing Statutes, 394, 395. 
 
 Conveyancing- Statutes, 415. {d) Sanders\.Eodway,lQ'Be&Y. 
 
 (a) Cockscdf/e v. Cocksedffe, 14 '207 ; Hamilton v. Sector, L. E,., 
 
 Sim. 244; Cartwright v. Cart- 13 Eq. 511 ; and see Marshall v. 
 
 Wright, 3 De G. M. & &. 982 ; Mar&hall, 5 P. D. 19 ; Besant v, 
 
 K. V. TT., 3 K. & J. 382; see Wood, 12 Ch. D. 605 ; Gandy v. 
 
 also Sindley v. Marquis of West- Gandy, 7 P. D. 1G8 ; Rose v. Rose, 
 
 meath, 9 B. & C. 200 ; Merry- 8 P. D. 98. 
 
 weather v. Jones, 4 GifE. 499. (e) Stephens y. Olive, 2 Bro. 
 
 {b) Wren v. Bradley, 2 De G. C. C. 90 ; '^ Worrall v. 'Jacob, 3 
 
 & S. 49. Meriv. 256, 269. 
 
 (c) Jones V. Waite, 4 Man. & (/) See Wilson v. Wilson, 14 
 
 Gr. 1104; Wilson v. Wilson, 1 Sim. 405; 1 H. of L. Cas. 538. 
 H. L. C. 538. See WilUams's
 
 OF THE MUTUAL lUGHTS OF HUSBAND AND ^^^FE. 613 
 
 from liis wife, stands in the same position as any other 
 voluntary deed (r/) ; and, though iDinding on himself, 
 may not be binding on his creditors (//). Before the 
 Married Women's Property Act, 1882 (/), took effect, the 
 circumstance of voluntary separation gave to the wife 
 no further power of disposition over property than she 
 possessed whilst living with her husband {J) . Accord- 
 ingly, if she survived her husband, she was not bound 
 by any disposition of her personal estate made on the 
 separation, which her husband would have been unable 
 to make, without her concurrence, had no separation 
 taken place (/.•). If after separation the parties become 
 reconciled and return to cohabitation (/), the provisions 
 of the deed of separation will thenceforth become in- 
 operative. 
 
 In the event of separation, the custody of the infant Custody of in- 
 children belongs by law to the father as the natural 
 guardian {/u). And it was formerly decided that he 
 was incompetent to relinquish a duty thrown upon him 
 by the law, and that, therefore, a covenant on his part 
 to give up the children to the care of their mother was 
 illegal (;?). If, however, the conduct of the father 
 
 (ff) See ante, pp. 472, 473. of L. Cas. 538 ; Webster v. 
 
 [h) Fitzcr V. Fitzer, 2 Atk. Webster, 1 Sm. & G. 489 ; 4 De 
 
 511; CloiKjh V. Lambert, 10 Sim. G. M. & G. 437; Bindley v. 
 
 174. JMloncy, L. R., 7 Eq. 343. See, 
 
 (J) Stat. 45 & 46 Vict. c. 75 ; however, Hulme v. Chitty, 9 
 
 see ante, pp. 594 — 596. Beav. 437 ; Jiujles v. Alston, 
 
 U) Lord St. John v. Lady St. L. E,., 19 Eq. 539. 
 
 John, 11 Ves. 531 ; Cahill v. {m) Co. Litt. 88 b, n. (12) ; 
 
 Cahill, 8 App. Cas. 420. See Rex v. Sherrington, 3 Bam. & 
 
 Williams's Conveyancing Sta- Adol. 714. 
 
 tutes, 395. (w) Lord St. John v. Lady St. 
 
 ik) Stamper r. Barker, 5 Madd. John, 11 Ves. 531 ; Vansittart v. 
 
 157; Slatter v. SUtlter, 1 To. & Vansittart, 4 K. & J. 62 ; 2 De 
 
 Col. 28. Gcx & Jones, 249 ; Hope v. Hope, 
 
 {I) Bateman v. Ross, 1 Dow, 22 Beav. 351 ; 3 Jur., N. S. 454, 
 
 235, 245 ; Lord St. John v. Lady Lords Ju?t. ; Walrond v. Wal- 
 
 St. John, 11 Ves. 537 ; Wilson v, rond, John. 18 ; Andrews v. Salt, 
 
 Wilson, 15 Sim. 487, 500 ; 1 H. L. R., 8 Ch. 622.
 
 614 OF PERSONAL ESTATE GENERALLY. 
 
 sliould be such that the children would be exposed to 
 cruelty or gross corruption of morals from being left 
 in his custody, the law would have deprived him of 
 a charge for which he had shown himself totally 
 unfit (o). And by a modern Act of Parliament (7;), 
 now repealed, power was given to the judges of the 
 Court of Chancery (q), upon the petition of the mother 
 of any infant, being in the sole custody of the father, 
 or of any person by his authority, or of any guardian 
 after the death of the father, to make order for the 
 access of the petitioner to such infant, at such time and 
 subject to such regulations as should be deemed con- 
 venient and just ; and, if such infant should be within 
 the age of seven years, to make order that such infant 
 should be delivered to and remain in the custody of the 
 petitioner until attaining such age, subject to such regu- 
 lations as should be deemed convenient and just. If 
 adultery had been established against the mother, no 
 order could be made in her favour under this Act(y). 
 Act to amend But the recent Act to amend the law as to the custody of 
 the custody of infants («) has repealed this Aet(f), and now provides 
 infants. i]^r^^ g^f j-gj, ^]^q passing of the Act, it shall be lawful for 
 
 the Court of Chancery, upon hearing the petition by her 
 next friend of the mother of any infant or infants under 
 sixteen years of age, to order that the petitioner shall 
 have access to such infant or infants at such times, and 
 subject to such regulations, as the Court shall deem 
 proper, and to order that such infant or infants shall be 
 delivered to the mother, and remain in or under her 
 custody or control ; or shall, if already in her custody 
 or under her control, remain therein until such infant 
 
 (0) Cruise V. Eimter, 2 Bro. [2^) Stat. 2 & 3 Vict. c. 54; 
 
 C. C. 400; Wellesleij v. Diilce of Ex parte Bartlett, 2 Coll. 661. 
 Beaufort, 2 Euss. 1 ; Rex v. {q) In re Taylor, 10 Sim. 291. 
 
 Greenhill, 4 Adol. & EU. 624 ; (>•) Stat. 2 & 3 Vict. c. 54, 
 
 Sivift y. Sivift, L. J., 11 Jur., N. s. 4. 
 
 S. 458 ; 34 Law Journ. Chanceiy, (s) Stat. 36 Vict. c. 12, passed 
 
 394 ; 34 Beav. 2G6 ; Be GoMs- 24th April, 1873. 
 worthy, 2 Q. B, D. 75. {t) Sect. 3.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 615 
 
 or infants shall attain siicli age, not exceeding sixteen, 
 as the Court shall direct; and further to order that such 
 custody or control shall he suhject to such regulations 
 as regards access hy the father or guardian of such 
 infant or infants, and otherwise as the said Court shall 
 deem proper {ii) . And the Act further provides {.v) that 
 no agreement contained in any separation deed made 
 between the father and mother of an infant or infants, 
 shall be held to be invalid by reason only of its pro- 
 viding that the father of such infant or infants shall 
 give up the custody or control thereof to the mother : 
 provided always that no Court shall enforce any such 
 agreement if the Court shall be of opinion that it will 
 not be for the benefit of the infant or infants to give 
 effect thereto (//). We have already seen (;:) that all 
 causes and matters to be commenced under any Act of 
 Parliament, by which exclusive jiu'isdiction in respect 
 to such causes and matters has been given to the Com't 
 of Chancery, and also the wardship of infants and the 
 care of infants' estates are now assigned to the Chancery 
 Division of the High Com-t. And the Supreme Com't 
 of Judicature Act, 1873, provides, that in questions 
 relating to the custody and education of infants, the 
 rules of equity shall prevail (a) . 
 
 The jurisdiction anciently possessed by the Ecclesias- Court for 
 tical Courts over matrimonial causes, was in the year jvi^trimon^al 
 1858 transferred to a new Court, called the Court for Causes. 
 Divorce and Matrimonial Causes {h). But, as we have 
 
 {u) Stat. 36 Vict. c. 12, s. 1. {b) Stat. 20 & 21 Vict. c. 85, 
 
 (.r) Sect. 2 ; Hart v. llart, IS amended by stats. 21 & 22 Vict. 
 
 Ch. D. 670, 681—683. c 108 ; 22 & 23 Vict. c. 61 ; 23& 
 
 (y) See Re Bcsani, 11 Ch. D. 24 Vict. c. 144; 25 & 20 Vict. 
 
 508. c. 81 ; 29 & 30 Vict. c. 32 ; 31 
 
 {z) Ante, pp. 99, 100. & 32 Vict. c. 77 ; 36 Vict. c. 31 ; 
 
 [a) Sect. 25, sub-s. (10) ; Re and 47 & 48 Vict. c. 68 ; now 
 
 Goldsivorthy, 2 Q. B. D. 75. called the Matrimonial Causes 
 
 Acts.
 
 616 
 
 OF TERSONAL ESTATE GENERALLY, 
 
 Judicial 
 separation. 
 
 Alimony. 
 
 seen (c), in the year 1875 the jurisdiction of this Court was 
 transferred to the High Court of Justice, and all matters 
 which were previously within its exclusive cognizance 
 were assigned to the Probate, Divorce, and Admiralty 
 Division (d) . By the first Matrimonial Causes Act, in- 
 stead of the ancient decree for a divorce a mensd ct thoro^ a 
 decree for a judicial separation is substituted, which has 
 the same force and consequences {e). Where appli- 
 cation for judicial separation is made by the wife, the 
 Court may make any order for alimony which may be 
 deemed just (/). Alimony is an allowance ordered to 
 be paid by the husband for the separate maintenance 
 of the wife, and was formerly decreed of ecclesiastical 
 jurisdiction only {g). It is enacted in the same 
 Matrimonial Causes Act that 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 de- 
 scription which she may acquire or which may come to 
 or devolve upon her ; 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 sejDarate use, subject, 
 however, to any agreement in writing made between 
 herself and her husband whilst separate {Ji). It is 
 
 (c) Ante, p. 99. 
 
 id) Stats. 36 & 37 Vict. c. 66, 
 ss. 16, 34 ; 37 & 38 Vict. c. 83. 
 
 {e) Stats. 20 & 21 Vict, c, 85, 
 ss. 7, 16, 17 ; 21 & 22 Vict. c. 108, 
 s. 19. 
 
 (/) Stats. 20 & 21 Vict. c. 85, 
 ss. 17, 24; 21 & 22 Vict. c. 108, 
 s. 19. 
 
 ig) See 2 Eoper on Husb. & 
 Wife, p. 338, note {d), 2nd ed. ; 
 VandergiKlit v. Be Blacquiere, 8 
 Sim. 315 ; 5 My. & Cr. 229, 241 ; 
 Stones V. Coohe, 8 Sim. 321, note. 
 See Stat. 20 & 21 Vict. c. 85, 
 s. 6. 
 
 [h) Stat. 20 & 21 Vict. c. 85, 
 s. 25. See Me Insole, 35 Beav.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIVE. G17 
 
 also enacted that in every case of a judicial separation 
 tlie wife shall, whilst so separated, be considered as a 
 feme sole for the purpose of contract and wrongs and 
 injuries, and suing and being sued in any civil pro- 
 ceeding (/) ; 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 alimony has been decreed or ordered to bo 
 paid to the wife, and the same shall not be duly paid 
 by the husband, he shall be liable for necessaries 
 suppUed for her use (k) ; 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 (/). The same Act Protection 
 provides that 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 that, 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 con- 
 tinuance thereof be, and be deemed to have been, 
 during such desertion of her, in the like position in all 
 respects, with regard to property and contracts, and 
 suing and being sued, as she would bo mider the same 
 Act if she obtained a decree for judicial separation {ni). 
 
 92 ; L. R., 1 Eq. 470; Johnson y. (;«) Stat. 20 & 21 Vict. c. 85, 
 
 Zander, L. R., 7 Eq. 228. s. 21, amended by stats. 21 & 22 
 
 ((•) Ramsden v. Brearky,!!. R., Vict. c. 108, ss. (3—10 ; 27 & 28 
 
 10 Q. B. 147. Vict. c. 44. See Re Kingslei/s 
 
 (A) Cf. p. 611, ante; and see Trust, 26 Bcav. 84; Cooke v. 
 
 Willson V. Smyth, 1 B. & Ad. Fuller, ib. 99 ; Re Whittingham, 
 
 801; Eunt v. De Blacquiere, 6 \Q 3m:.,ls.^.^\^\ Jindland Rail. 
 
 Bing. 550. Co. v. Rye, 30 L. J. (N. S.), C. P. 
 
 {I) Stat. 20 & 21 Vict. c. 85, 314 ; «. C. 9 W. R. 658 ; In the 
 
 B. 20. goods of Elliott, L. R., 2 P. & M.
 
 G18 OF PERSONAL ESTATE GENERALLY. 
 
 The provisions contained in this Act respecting the 
 property of a wife, who has obtained a decree for 
 judicial separation or an order for protection, were by 
 a statute of the year 1858 extended to property to 
 which such wife has become or shall become entitled as 
 executrix, administratrix, or trustee since the sentence 
 of separation or commencement of the desertion (as the 
 case may be) {ii) ; and it was enacted that property of 
 or to which the wife is possessed or entitled for an 
 estate in remainder or reversion at the date of the 
 desertion or decree (as the case may be) shall be deemed 
 to be included in the protection given by the order or 
 decree (o). In addition to the rights conferred by the 
 above enactments, wives, who have obtained a decree 
 for judicial sej)aration, or have been deserted by their 
 husbands, now possess the rights conferred upon mar- 
 ried women by the Married Women's Property Act, 
 1882 {20), and retain any rights which they may have 
 acquired under the Married Women's Property Act, 
 1870 (q). 
 Dissolution of By the first Matrimonial Causes Act the Court is 
 empowered to pronounce a decree for the dissolution of 
 the marriage upon the petition of husband or wife, on 
 the grounds and subject to the conditions specified in 
 the Act (r). Before this Act came into operation, 
 dissolution of a marriage could only be effected by Act 
 of Parliament (s) ; so that the power of obtaining a 
 divorce was practically enjoyed by the richer classes 
 only. When a marriage is dissolved, the parties are at 
 
 27-i ; Jic Coicard and Adam's Fur- {q) Stat. 33 & 34 Vict. c. 93; 
 
 chase, L. R., 20 Eq. 179 ; JVichol- see caite, p. 688. 
 
 son V. Driiry Buildings Estate Co., (>•) Stat. 20 & 21 Vict. c. 85, 
 
 7 Ch. D. 48. ss. 27—31 ; see stat. 23 & 24 Vict. 
 
 (m) Stat. 21 & 22 Vict. c. 108, c. 144, 's. 7, made perpetual by 
 
 s. 7. . Stat. 25 & 26 Vict. c. 81. 
 
 (o) Sect. 8. (s) SeeEomiUy,M.R.,7rittJ«- 
 
 {if) Stat. 45 & 46 Vict. c. 75 ; son v. Gibson, L. R., 4 Eq. 162, 
 
 ante, pp. 594—608. 166. 
 
 marriag'e.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AXD WIFE. GIO 
 
 liberty to marry again (t). And tbo rights, wliicli 
 husband and wife enjoy in respect of each other's 
 property, independent of settlement, cease upon dis- 
 solution of the marriage (k). On any decree for the 
 dissolution of a marriage, the Court may order that the 
 husband shall to the satisfaction of the Court secure to 
 the wife such gross sum of money, or such annual sum 
 of money for any term not exceeding her own life, 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 (.r) ; 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 Cou'i-t may think reasonable (j/). 
 Whenever the Court shall pronounce a sentence of Settlement on 
 divorce or judicial separation for adultery of the wife, judicial sepa- 
 it has power to order a settlement to be made of her I'atlou. 
 property, whether in possession or reversion, for the 
 benefit of the innocent party, and the children of the 
 marriage, or. either or any of them (s). And any in- 
 strument executed pursuant to any order of the Com't 
 made under this enactment, at the time of or after the 
 pronouncing of a final decree of divorce or judicial 
 separation, shall be deemed valid and effectual in the 
 law, not"\vithstanding the existence of the disabilitj^ of 
 coverture at the time of the execution thereof (a) . And Dissolution of 
 
 after a decree of nullity or dissolution of marriage, the ™^"'''o'^- 
 ^ . .■],■, • 1 p . \- 1 Settled pro- 
 
 Court may in(|uire mto the existence oi antenuptial perty. 
 
 or postnuptial settlements 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 
 
 {() Stat. 20 & 21 Vict. c. 85, {>/) Stat. 29 Vict. c. 32, s. 1. 
 
 s. 57. h) Stat. 20 & 21 Vict. c. 85, 
 
 {u) Wilkinson v. Gibson, L. R., s. 45. 
 4Eq. 162. Seeaw^c, pp. 569^;5tf(;. {a) Stat. 2:} & 24 Vict. c. 144, 
 
 {x) Stat. 20 & 21 Vict. c. 85, s. 6, made perpetual by stat. 25 & 
 
 8. 32. 26 Vict. c. 81.
 
 G20 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Custody, &c. 
 of children. 
 
 of the cliiklreu of the marriage or of their respective 
 parents, as to the Court shall seem fit {fj). This pro- 
 vision was held not to apply if there were no child of 
 the maniage living at the date of the order (c) . But it 
 has since been enacted {d) that the Court may exercise 
 the powers vested in it by sect. 5 of stat. 22 & 23 Yict. 
 c. 61, notmthstanding that there are no children of the 
 marriage. When the marriage is dissolved on the wife's 
 petition, it has been held that the trusts in her favoiu' 
 contained in her marriage settlement take effect as if 
 her husband were dead (e). But the contrary was de- 
 cided in a later case(/). And it is now established 
 that a decree for dissolution of marriage does not de- 
 prive either party of any interest in any property, which 
 is limited by settlement to him or her by name (g) . 
 
 In any proceeding to obtain a decree of judicial 
 separation, or of nullity or dissolution of marriage, the 
 Court may, either before or in or after the final decree, 
 make provision with respect to the custody, mainte- 
 nance and education of the children of the marriage, 
 or for placing the children under the protection of the 
 Chancery Division of the Court (//). 
 
 Powers of By the Matrimonial Causes Act, 1884 (/), a decree 
 
 nUcation ior ^'^^ restitution of conjugal rights shall not be enforced 
 restitution of by attachment ; but where the application is by the 
 
 (b) Stat. 22 & 23 Vict. c. 61, 
 8. 5. 
 
 (c) Thomas v. Thomas, 2 Sw. & 
 Tr. 89; Corrance v. Corrance, 16 
 W. E. 983; L. K., 1 P. & D. 
 495; Graham V.Graham, 17W.R. 
 628. 
 
 {d) By stat. 41 Vict. c. 19, s. 3, 
 the operation of which appears to 
 be retrospective ; Ansdell v. Ans- 
 dell, 5 P. D. 138. 
 
 [e) Jessop V. Blake, 3 Giff. 639 ; 
 Swift V. Wenman, L. R., 10 Eq. 
 
 15 ; Fussell v. Bowding, L. K., 14 
 Eq. 421. 
 
 (/) Fitzgerald v. Chapman, 1 
 Ch. D. 563. 
 
 [g) Evans v. Carrington, 2 De 
 a.,F. &J. 481;7Jur.,]Sr. S. 197; 
 Fitzgerald v. Chapman, 1 Ch. D. 
 563 ; Burton v. Sturgeon, C. A., 2 
 Ch. D. 318. 
 
 (/*) Stats. 20 & 21 Vict. c. 85, 
 s. 35; 22 & 23 Vict. c. 61, s. 4. 
 
 (i) Stat. 47 & 48 Vict. c. 68, 
 s. 2.
 
 OF THE MUTUAL RIGHTS OF IIUSBAJJD ASD WIFE. 621 
 
 wife, the Coui't may, at the time of making such decree, conjiijL,'al 
 or at any time afterwards, order that in tlio event of "o"^*^- 
 such decree not being complied with within any time 
 in that behalf limited by the Court, the respondent 
 shall make to the petitioner such periodical payments 
 as maybe just, and such order may be enforced in the 
 same manner as an order for alimony in a suit for judi- 
 cial 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 such periodical payments. 
 Where the application for restitution of conjugal rights 
 is by the husband, if it shall be made appear to the 
 Court that the wife is entitled to any property, either 
 in possession or reversion, or is 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 
 Com't of such proi^erty, or any part thereof, for the 
 benefit of the petitioner and of the children of the mar- 
 riage, 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 respon- 
 dent 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 (/•). 
 Any such order for the periodical payment of money 
 may be varied or modified, or may be suspended and 
 again revived by the Coiu't (/) . And the Court may, at Custody, &-c. 
 any time before final decree on any application for ° ^" ^^^' 
 restitution of conjugal rights, or after final decree if the 
 respondent sliall fail to comply therewith, upon appli- 
 cation for that purpose, make from time to time all such 
 orders and provisions with respect to the custody, main- 
 tenance and education of the children of the petitioner 
 and respondent as might have been made by interim 
 orders during the pendency of a trial for judicial sepa- 
 ration between the same parties {)»). 
 
 [k) Sect. 3.. (0 Sect. 4. (;») Sect. 6.
 
 ( 622 ) 
 
 Money and 
 
 negotiable 
 
 securities. 
 
 PART V. 
 
 OF TITLE. 
 
 The title to personal estate varies according as it may 
 consist of money or negotiable securities, or of ordinary 
 choses in possession, or of closes in action. 
 
 And, first, witli regard to money or negotiable secu- 
 rities, no title at all is required to be sbown by tbe payer 
 in any bond fide transaction. Thus, if a sovereign or a 
 bank note be offered in payment of a debt, it is no part 
 of tbe duty of the creditor, under ordinary circum- 
 stances, to ask the debtor how he came by it. The 
 reason of this rule is founded on the currency of the 
 articles in question, and on the great inconvenience to 
 trade and commerce which would ensue if the rule were 
 otherwise {a). And the rule applies to all negotiable 
 securities, that is, to all instruments the delivery of 
 which passes the legal right to the property secured by 
 them. Promissory notes and bills of exchange payable 
 to bearer, or payable to order and indorsed in blank, 
 are accordingly within the rule (&). But if there be 
 any mala fides on the part of the person receiving any 
 money or negotiable security, or such gross negligence 
 as may amount in itself to evidence of mala fides, the 
 true owner may recover such property, provided its 
 
 («) Miller Y. Race, 1 Burr, 452 ; 
 1 Smith's Leading Cas. 250. 
 
 {b) Grant v. Vauffhan, 3 Burr. 
 1516 ; Teacock v, Rhodes, 2 Doug. 
 333 ; see also Goodwin v. Robarts, 
 
 L. R., 10 Ex. 337 ; 1 App. Cas. 
 476 ; Rumhall v. Mctrajwlitan 
 Banh, 2 Q. B. D. 194 ; ante, pp. 
 133, 134.
 
 OF TITLE. G23 
 
 identity can be ascertained (c) . A delivery order does Delivery 
 not of itself pass the property in the goods mentioned ^^''^^^■• 
 in it; it is therefore not a negotiable security within 
 the rule above mentioned ; but bond fide purchasers and 
 pledgees are now protected by the Factors' Act, 1877 {d). 
 
 With regard to ordinary choses in possession, a valid Sale of cbat- 
 title to them is generally obtained by a purchase in an oy^rt^ ^^"^^ ^ 
 open market, or market overt, although no property may 
 have been possessed by the vendor {e). And every shop 
 in the city of London, where goods are openly sold, is 
 considered as a market overt within this rule, for such 
 things as by the trade of the owner are put there for 
 sale (/). But the shops at the west end of the town 
 do not appear to possess this privilege. If the sale is 
 not made in market overt, the purchaser, though he 
 purchase bond fide, acquires no further property in the 
 article sold than was possessed by the vendor [(j) . And 
 formerly, if a writ of execution should have been 
 actually in the hands of the sheriff on a judgment 
 against the vendor, the goods, if not sold in market 
 overt, were subject, in the hands of the purchaser, to 
 the sheriff's right to seize, in the same manner as if 
 they had remained in the hands of the vendor (//). But 
 a recent enactment now protects a purchaser bond fide 
 for valuable consideration, without notice of any writ (/) . 
 So if the goods have been stolen, a bond fide purchaser. Stolen goods. 
 who has not bought them in market overt, will be 
 
 (c) Clarke v. Shce, Cowp. 197 ; {g) Tccr v. Uumphreij, 2 Ad. & 
 
 Foster V. rcarson, 1 C. M. & R. Ell. 195 ; White v. Spettigxe, 13 
 
 849; S. C, 5 Tyrw. 255; Good- Mce. &W. 603; C'iindy\.Linds(»j, 
 
 man v. Harvey, 4 Ad. & Ell. 870. 3 App. Cas. 459. 
 
 {d) Stat. 40 & 41 Vict. c. 39. (/() Samuel v. Bukc, 3 Mce. & 
 
 [e) 2 Black. Com. 449. W. 622. See ante, pp. 81, 82. 
 
 (/) The case of Market Overt, 5 (*) Stat. 19 & 20 Vict. c. 97, 
 
 Rep. 83 b; Lyons v. De Pass, 11 s. 1, ante, p. 82, not retrospec- 
 
 Ad. & Ell. 326. tive ; Williams v. Smith, 2 H. & 
 
 N. 443.
 
 624 OF TITLE. 
 
 bound to restore them to the true owner (,/) ; whereas, 
 a sale in market overt would have given tlie purchaser 
 a valid title. There is one case, however, in which 
 even a sale in market overt will not protect a purchaser, 
 namely, the case of the goods having heen stolen, and 
 the true owner prosecuting the thief, and obtaining his 
 conviction. In this case the property in the goods, 
 wherever they may be, vests, on the conviction, in the 
 true owner (/.•) ; and the only exception allowed is, 
 where the article stolen is some valuable security, which 
 shall have been paid or discharged bond fide by the 
 person liable, or, being a negotiable instrument, shall 
 have been bond fide transferred or delivered for a just 
 and valuable consideration, without any notice, and 
 without any reasonable cause to suspect that the same 
 had been obtained by any felony or misdemeanour (/), 
 If a person suffer the loss of his goods by theft, he 
 cannot by any civil action recover them from the 
 felon {m). To do this, he is bound to suffer the further 
 loss of time or money incurred in a prosecution. If he 
 should succeed in obtaining a conviction, he is then 
 rewarded for his good fortune by a restitution of his 
 property, whether in the hands of the felon himself or 
 of any innocent purchaser who may have chanced to 
 buy them, although in open market. Such is the 
 application made by the law of the righteous principle 
 of restitution («). If, however, it should happen that 
 any money should have been taken from the prisoner 
 on his apprehension, it is now provided that it shall be 
 lawful for the Coiu-t, on the apjalication of any pur- 
 
 {j) White V. Spettigue, 13 Mee. s. 57, repealed by stat. 24 & 25 
 
 & "W. 603 ; see also Lee v. Bayes, Vict. c. 95, and re-enacted by 
 
 18 C. B. 599 ; Wells v. Abraham, stat. 24 & 25 Vict. c. 96, s. 100. 
 
 L. R., 7 Q. B. 554. {m) Stone v. Marsh, 6 Barn. & 
 
 (/i-) Scattergood v. Sylvester, 15 Cress. 551, 564 ; 2 Wms. Saund. 
 
 Q. B. 506 ; Walker v. Matthews, 47 b, n. [p). 
 
 8 Q. B. D. 109. («) See Choivne v. Baylls, 31 
 
 (0 Stat. 7 & 8 Geo. IV. c. 29, Beav. 351.
 
 or TITLE. 625 
 
 cliaser, who may have bought tho stolen property 
 without knowing that the same was stolen, and on the 
 restitution of the stolen property, to order that out of 
 such money a sum not exceeding the amount of the pro- 
 ceeds of the sale shall be delivered to the purchaser (o). 
 By the Pawnbrokers' Act, 1872 (p), in each of the fol- Goods unlaw- 
 lowing cases — (1) If any person is convicted under this 
 Act in a Court of summary jurisdiction of knowingly 
 and designedly pawning with a pawnbroker anything 
 being the property of another person, the pawner not 
 being employed or authorized by the owner thereof to 
 pawn the same ; (2) If any person is convicted in any 
 Court of feloniously taking or fraudulently obtaining 
 any goods and chattels, and it appears to the Court 
 that the same have been pawned witli a pawnbroker ; 
 (U) If in any proceedings before a Court of summary 
 jurisdiction it appears to the Court that any goods and 
 chattels brought before the Court have been unlawfully 
 l^awned witli a pawnbroker — the Court, on proof of tho 
 ownership of the goods and chattels, may, if it thinks 
 fit, order the delivery thereof to the owner, either on 
 payment to the pawnbroker of the amount of the loan 
 or any part thereof, or without payment thereof or any 
 part thereof, as to the Court, according to the conduct 
 of the owner and the other circumstances of the case, 
 seems just and fitting. 
 
 With regard to horses, a sale in market overt will Horses, 
 not confer on the purchaser any further title than is 
 possessed by the vendor, unless the sale be made ac- 
 cording to the directions of certain statutes (</) ; and 
 even then the true owner may, at any time within six 
 months after his horse has been stolen, recover his pro- 
 
 (o) Stat. 30 & 31 Vict. c. 35, s. 30. 
 8. 9. (<?) Stats. 2 & 3 P. & M. c. 7 ; 
 
 {p) Stat. 35 & 3G Vict. c. 93, 31 Eliz. c. 12 ; 2 Black. Com. 450. 
 w.r.p. s s
 
 626 
 
 OF TITLE. 
 
 perty on tender to the person in possession of the price 
 he bond fide paid for it (r). 
 
 Factors and 
 agents. 
 
 Power of 
 attorney. 
 
 "Warranty of 
 title. 
 
 A factor or agent in the possession of goods could 
 not by the common law give any further title to the 
 goods than he was authorized to do Ly his principal, 
 either exjiressly or by implication arising from the 
 usual coui'se of his employment (.s). And when one 
 man is appointed the agent of another for any parti- 
 cular purpose by power of attorney, his authority must 
 still be strictly pursued, otherwise his principal will 
 not be bound (/). But by modern Acts of Parliament 
 a more extended authority has, for the convenience of 
 commerce, been conferred an factors and agents (?«). 
 The provisions of these Acts are too long to be here 
 inserted ; but their general effect is to render valid 
 sales and pledges made by factors or agents, notwith- 
 standing any notice of the fact of their being merely 
 factors or agents, provided the party dealing with them 
 have no notice that they are acting without authority 
 or mala fide. 
 
 In ancient times the sale of lands was usually accom- 
 panied by a warranty of their title ; and some words, 
 such as the word gice in a feoffment, had the effect 
 of an implied warranty, when none was expressed (x). 
 Warranties, however, fell into disuse, and the pur- 
 chasers of lands acquired a right to covenants for the 
 title, varying in theii* stringency according to the nature 
 
 (>•) Stat. 31 Eliz. c. 12, s. 4. 
 
 («) Fickering v. Busk, 15 East, 
 38, 43. 
 
 {t) Attivood V. Miinnings, 7 
 Barn. & Cress. 278. As to the 
 effect of the revocation of a power 
 of attorney, see "Williams's Con- 
 veyancing Statutes, 220, 221, 
 285—288. 
 
 («) Stats. 4 Geo. IV. c. 83 ; 6 
 Geo. I"7. c. 94 ; 5 & 6 Vict. c. 39 ; 
 40 & 41 Vict. c. 39 ; CoUy. North 
 IVestern Bank, L. R., 10 C. P. 
 354. 
 
 (.r) See Principles of the Law 
 of Real Property, 444, 13th ed. ; 
 469, 14th ed.
 
 OF TITLE. G27 
 
 of the title of the vendor (//). But, upon the sale of 
 chattels personal, there may still bo a warranty of title, 
 either express or implied. And every affirmation made 
 by the vendor at the time of sale respecting the goods is 
 an express warranty, if it appear to have been so in- 
 tended (~) . And if the vendor state that the goods are his 
 own, this amounts to an express warranty of his title (a) ; 
 but if the contract for sale be in writing, the warranty 
 must be in writing also (b). And a warranty made 
 subsequently to the sale is void for want of considera- 
 tion {(') . It appears, moreover, to be the better opinion Implied -war- 
 that the act of selling goods implies an assertion of on^gale. 
 ownership in the goods sold ; and that therefore a war- 
 ranty of title is implied on the sale of goods, unless it 
 appear from the circumstances of the transaction that 
 no assertion of ownership by the vendor can be implied, 
 but that the intention of the parties to the contract was 
 merely to transfer such interest as the vendor had in 
 the goods sold ((/). Ey the general rule of the common ■Warranty of 
 law, upon the sale of goods, no warranty is implied as ^^ 
 to the quality of the goods sold {c). But affirmations 
 made at the time of sale may amount to an express 
 warranty of quality, as in the case of warranty of 
 title (/) . And a warranty of quality may be implied 
 
 [ij) Ibid. 44.5, 447, 13th ed. ; p. 94. 
 
 470, 472, 14tli ed. {d) See Chapman v. SpiUcr, 14 
 
 {z) See Richardaon v. Urowii, 1 Q. B. 621 ; Morleij v. Atten- 
 ding. 344 ; Sheppard v. Kain, 5 borough, 3 Ex. 500 ; Eichhoh x. 
 Barn, k Aid. 240; Power y. Bar- Bannister, 17 C. B., N. S. 708 ; 
 ham, 4 Ad. & Ell. 473 ; Carter v. Bagncleij v. Ilawlcy, L. R., 2 C. 
 Criclc, 4 H. & N. 412 ; Benjamin P. 025 ; Benjamin on Sales, Bk. 
 on Sales, 499, 2nd ed. IV. Pt. II. Sect. II. pp. 511— 
 
 {a) Ftirniss v. Leicester, Cro. 523, 2nd ed., G19 — 631, 3rd ed. 
 
 Jac. 474; Medina v. Slough Ion, 1 (e) See Benjamin on Sales, 498, 
 
 Salk. 210. 525, 2nd ed. ; Jones v. Just, L. 
 
 (i) FickeringY.Dowson, iTaunt. E., 3 Q. B. 197, 202. 
 
 779. (/) See Benjamin on Sales, 
 
 (c) Finch, L. 189; RoscorU v. 499, 2nd ed. 
 Thomas, 3 Q. B. 234. See ante, 
 
 SS2
 
 628 OF TITLE. 
 
 from the circumstances of the transaction (/). For 
 instance, wliere a manufacturer or dealer contracts to 
 fiu'nisli goods for a particular purpose, so that the pur- 
 chaser necessarily trusts to the vendor's judgment or 
 skill, a warranty is implied that the goods shall be fit 
 for that purpose [g). And when goods are sold hy 
 Jones V. Just, some particular description [e. g., "200 bales Manilla 
 hemp "), and the purchaser has no opportunity of inspect- 
 ing the goods, there is an implied warranty that the 
 goods shall be of a merchantable or saleable quality (//) . 
 Again, contracts made in the course of any trade are 
 always subject to the custom of that trade ; and if by 
 the custom of the trade a warranty of quality is im- 
 plied in any contract, the vendor will be bound by it, 
 in the same manner as if he had given an express war- 
 ranty {i). By the Merchandize Marks Act, 1862 (/.•), 
 every person who contracts to sell any article with any 
 trade mark thereon is deemed to warrant that such 
 mark is genuine, unless the contrary be expressed in 
 some writing signed by or on behalf of the vendor, and 
 delivered to and accepted by the purchaser. The Act 
 contains a similar provision (/) with respect to the sale 
 of any article, upon which there is any description, 
 statement, or other indication of or respecting the 
 number, quantity, measure or weight of such article, or 
 the place or country in which it shall have been made 
 or produced. 
 
 statute of If goods and chattels should have come into the 
 
 Limitations, . p , . l^l^ j l^ ^ 
 
 possession oi persons having no title to them, such 
 
 (/) See Benjamin on Sales, B. 197, 205; Benjamin on Sales, 
 
 Bk. IV. Pt. II. Sect. III. pp. 525 539, 2nd ed. 
 
 et seq., 2nd ed. (j) Jones v. Boivden, 4 Taunt. 
 
 {g) Jones v. Bright, o Bing. 847 ; see also Johnson v. Baylton, 
 
 533 ; Broken v. Edginrjton, 2 Man. 7 Q. B. D. 438. 
 
 & Gr. 279 ; Jones v. Just, L. E., {k) Stat. 25 & 2G Vict. c. 88, 
 
 3 Q. B. 197, 202, 203 ; Benjamin e. 19. 
 
 on Sales, 525, 543, 2ud ed. {I) Sect. 20. 
 
 {h) Jones v. Just, L, E., 3 Q.
 
 OF TITLE. 629 
 
 persons will, in coiu'se of time, bo quieted in their 
 
 enjoyment by virtue of the Statute of Limitations {m). 
 
 By this statute all actions of trespass, detinue and 
 
 re25levin for goods or cattle must be brought within .S7> 
 
 years next after the cause of such action (n) : but if the Disabilities. 
 
 person entitled to any such action be under age, /c»ie 
 
 covert, or non compos mentis, such person shall bo at 
 
 liberty to bring the same action within six years after 
 
 the disability is removed (o) . The disabilities of absence 
 
 beyond seas and imprisonment have been abolished by 
 
 a recent statute {p). 
 
 Choses in action, whether legal or equitable, differ Statutes of 
 from choses in possession in this, that the title to them to^hoses in 
 is endangered rather than strengthened by the Statutes action, 
 of Limitation. This difference arises from the nature 
 of the property. Goods and chattels may exist without 
 any owner ; but if there cease to be a person entitled 
 to a debt, the debt itself ceases to exist. The time 
 within which actions or siuts may be brought for the 
 recovery of choses in action varies according to the 
 nature of the secmity. The law on this subject has 
 been rendered somewhat difficult by two different Acts 
 of Parliament {q) varying from each other, each passed 
 the same session of parliament, and each intended to 
 amend the law. If the chose in action were money Mortgages, 
 secured by any mortgage, judgment (r) or lien, or other- S^gacL 
 wise charged upon or payable out of any real estate at formerly re- 
 law or in equity, or any legacy (.s), or the personal within twenty 
 estate or any share of the personal estate of a person ^^ars. 
 who had died intestate {t), no action or suit could 
 
 {m) Stat. 21 Jac. I. c. 16. [q) Stats. 3 & 4 Will. IV. cc. 
 
 («) Sect. 3 ; see fVUldnson v. 27, 42. 
 
 Verity, L. E., 6 C. P. 20G. (r) iratson\.Bi)-ch,\b^\ra.b2Z. 
 
 (o) Sect. 7. («) Shcppard v. Btike, 9 Sim. 
 
 {p) Stat. 19 & 20 Vict. c. 97, 5G7. 
 
 88. 10, 12. {t) Stat. 23 & 24 Vict. c. 38, 
 
 s. 13.
 
 630 
 
 OF TITLE. 
 
 New enact- 
 ment. 
 
 Reduced to 
 twelve years. 
 
 formerly be brouglit to recover the same but within 
 t went If years next after a present right to receive the 
 same should 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, should have been paid, or some 
 acknowledgment of the right thereto should have been 
 given in writing signed by the person by whom the 
 same should have been payable, or his agent (?«), to the 
 person entitled thereto or his agent {a) ; and in such 
 case no such action or suit could be brought but within 
 twenty years after such payment or acknowledgment, 
 or the last of such payments or acknowledgments, if 
 more than one, was made or given (//). But by the 
 Real Property Limitation Act, 1874 (c), which came 
 into operation on the 1st of January, 1879 [a), the 
 above-mentioned period of twenty years was reduced to 
 twelve years, except in the case of the personal estate or 
 any share in the personal estate of a person who has 
 died intestate, an omission probably made per inciirimn. 
 
 Rent secured If the chose in action be rent due upon an indenture 
 and^on*"^^ ^^ demise, or money secured by bond or other specialty, 
 secured by but not charged upon or payable out of any land or 
 
 bond, speci- j. / 7 \ i i • , • 
 
 alty or recoo-- I'^^it [o), or money secured by a recognizance, an action 
 
 nizance. must also be brought within ticenty years after the 
 
 cause of such action (c), or within twenty years after 
 
 the removal of any of the disabilities of infancy, cover- 
 
 {11) Lord St. John v. BougMon, 9 
 
 [h) The period for recovering 
 
 Sim. 219. 
 
 money secui-ed by specialty and 
 
 (.r) Blair v. Kngcnt, 3 Jones & 
 
 also charged on any land or rent 
 
 Lat. 673, 677. 
 
 is now twelve years, as the case 
 
 [y) Stat. 3 & 4 Will. IV. c. 27, 
 
 falls within stat. 37 & 38 Vict. 
 
 8. 40. 
 
 c. 57, s. 8 ; Sutton v. Sutton, 22 
 
 (2) Stat. 37 & 38 Vict. c. 57, 
 
 Ch. D. 511; Fcarmide v. Flint, 
 
 8.8. 
 
 ih. blQ. 
 
 (a) Sect. 12. 
 
 (f) Stat. 3 & 4 Will. IV. c. 42, 
 8. 3.
 
 f)F T1T1.K. 631 
 
 tiire or lunacy (d). And if any person, against wliom Absence be- 
 there is any such cause of action, shall bo beyond the ^°°^ ^^^^' 
 seas at the time such cause of action accrued, the person 
 entitled to any such cause of action ma}'- bring the same 
 against him within twenty years after his return (e). 
 And the absence of a joint debtor beyond the seas will 
 not prevent time from running in favour of the others, 
 who may not bo beyond the seas ; and the recovery of 
 judgment against them will not prevent the creditor 
 from commencing an action against the absent debtor 
 after his return (/). If any acknowledgment shall 
 have been made, either by writing signed by the 
 party liable (ry), or his agent, or by part payment or 
 part satisfaction on account of any principal or interest 
 then due, the person entitled may bring his action 
 for the money remaining unpaid and so acknowledged 
 to be due, within twenty years after such acknow- 
 ledgment, or within twenty years after any of the 
 above-mentioned disabilities shall have ceased, or the 
 party liable shall have returned from beyond the 
 seas, as the case may be {/i). If the chose in action Arrears of 
 consists of arrears of dower, neither such arrears nor '^*^'^^'"' 
 damages on account thereof can be recovered or ob- 
 tained by any action or suit for a longer period than 
 six 9/ears next before the commencement of such action 
 or suit(/). Arrears of rent or of interest in respect Arrears of 
 of any sum of money charged upon or payable out terest^*^^"^' 
 of any real estate or in respect of any legacy, can 
 be recovered only within six years next after the same 
 shall have become due, or next after an acknow- 
 
 {d) Stat. 3 & 4 Wm. IV. c. 42, Gex & Jones, 1 ; Moodie v. Ban- 
 
 8. 4 ; 19 & 20 Vict. c. 97, s. 10 ; nister, 4 Drew. 432; Coo2>ev.Cress' 
 
 Fardo v. Bingham, L.C., 17 W. R. ivdl, L. C, Law Rep., 2 Ch. Ap. 
 
 419. 112. 
 
 [e) Stat. 3 & 4 WUl. IV. c. 42, {h) Stat. 3 & 4 Will. IV. c. 42, 
 
 s. 4. s. 5 ; Kcmpe v. Gibbon, 9 Q. B. C09. 
 
 (/)Stat.l9&20Vict.c.97,8.11. (i) Stat. 3 & 4 Will. IV. c. 27, 
 
 {g) See Eoddam v. Morleg, 1 De s. 41.
 
 632 . OF TITI-E. 
 
 ledgment of tlie same in writing sliall have been given 
 to tlie person entitled thereto, or his agent, signed by 
 the person by whom the same was payable, or his 
 agent [Jc). But it was decided, before the Limitation 
 Act of 1874 took effect, that, if such arrears were secured 
 to the claimant (/) by indenture of demise {))i), or by bond 
 or other specialty (»), an action of debt or covenant might 
 be brought for such arrears at any time within twenty 
 years. And where a mortgagee or other incumbrancer 
 shall have been in possession of any real estate within 
 one year next before the action or suit of a subsequent 
 mortgagee or incumbrancer, the latter may recover the 
 arrears of interest which may have become due to him 
 during the whole time that the prior mortgagee or 
 
 Simple con- incumbrancer was in possession (o) . If the chose in 
 action consist of a simple contract debt, it must be sued 
 for within six years next after the cause of action, or 
 within six years next after the removal of any of the 
 disabilities of infancy, coverture or lunacy (^;). And 
 no acknowledgment or promise by words only to pay 
 such debt shall be deemed sufficient evidence of a 
 new or continuing contract to take the case out of the 
 operation of the statute, unless such acknowledgment 
 or promise shall be made in \^Titing, signed by the 
 
 Awards, fines party chargeable thereby [q) or his agent (r). Actions 
 
 (k) Stat. 3 & 4 Will. IV. c. 27, 679 ; see ante, p. 630 and note {b). 
 
 s. 42 ; Hodges v. Croydon Canal (w) Sims y. Thomas, 12 Ad. & 
 
 Company, 3 Beav. 86 ; Francis v. Ell. 536 ; Sunter v. Kockolds, 1 
 
 Grover, 5 Hare, 39; Eumfreij v. Mac. & Gord. 640. ^eeElvy^r. 
 
 Gery, 7 C. B. 567. See Tnft v. Norwood, 5 De Gex & Smale, 
 
 Stevenson, 5 De Gex, M. & G. 735 ; 240 ; Sinclair v. Jackson, 17 Beav. 
 
 Mason v. Broadbent, 33 Beav. 296 ; 405 ; see ante, p. 630 and note {b). 
 
 Edmund v. Waugh, V.-C. K., 14 (o) Stat. 3 & 4 Will. IV. c. 27, 
 
 W. R. 257; LawEep.,lEq. 418; s. 42. 
 
 Boxnjcr v. TVoodman, V.-C. W., {p) Stat. 21 Jac. I. c. 16, ss. 3, 
 
 Law Rep., 3 Eq. 313. 7 ; 19 & 20 Viol. c. 97, ss. 10, 12. 
 
 (/) Hughes V. Kdhj, 3 Dru. & (<?) Stat. 9 Geo. IV. c. 14, s. 1. 
 
 Wan-en, 482. (r) Stat. 19&20Vict.c.97,s.l3; 
 
 (?«) Taget v. Foley, 2 New Ca. see ante, pp. 116, 117, 122, 123.
 
 OF TITLE. 633 
 
 of debt upon any award where the submission is not by for copyholds, 
 specialty, or for any fine due in respect of any copyhold 
 estates, or for an escape, or for money levied on any 
 fio'i facias^ must also be brought within six years after 
 the cause of action, with a similar saving in respect of 
 disabilities to that applicable in the case of actions on 
 indentures of demise, bonds or other specialties (s) . 
 And actions for penalties, damages or sums of money Penalties, &c. 
 given to the party grieved by any statute now or here- party grieved. 
 after to be in force, must be brought within tico years 
 after the cause of such actions, with the like saving in 
 respect of disabilities, unless the time for bringing such 
 action is or shall be by ony statute specially limited {t). 
 Not more than two years' arrears of a tithe rent-charge Tithe rent- 
 can be recovered [n) . charge. 
 
 "When a cause of action accrues to a person in his Death of 
 lifetime, the time limited by the Statutes of Limitation '^'^^^*°^- 
 will run on after his decease from the period that the 
 cause of action accrued, and will not be reckoned from 
 the time that administration was taken out to his 
 effects {x). But if the cause of action accrue after the 
 death of the party, the time limited by the statute 
 will run only from the grant of the letters of adminis- 
 tration {y). On the other hand, the death of the debtor Death of 
 and the absence of any personal representative to his ^'^^*^o'^- 
 effects, will not prevent the time limited by the statute 
 from continuing to run on. For if there be once a 
 cause of action, a i)laiutif[: that can sue, and a defendant 
 that can be sued in England, the time limited by the 
 
 (s) Stat. 3 & 4 Will. IV. c. 42, by distress and entry, see ss. 67, 
 
 ss. 3, 4 ; see rtwie, p. 030. 81; Principles of the Law of 
 
 {t) Stat. 3 & 4 Will. IV. c. 42, Real Property, p. 362, 14th ed. 
 ss. 3, 4. (.?•) 2 Wins. Saund. 63 k. 
 
 (?0 Stat. 6 & 7 Will. IV. c. 71, (y) Murray v. East India Coin- 
 
 8. 82 ; the mode of recovery of pa»!/, 5 Barn. & Aid. 204 ; Ferri/ 
 
 arrears of a tithe rent-charge is v. Jenkins, 1 Mvlne & Cr. 118.
 
 034 
 
 OK TlTI/i;. 
 
 Executor or 
 administnitor 
 not bound to 
 j)lead the 
 statute. 
 
 statute will begin to run, and will not he stopped by 
 the decease of either party (;:) . An executor or admi- 
 nistrator is not, however, bound to plead the Statute of 
 Limitations to any debt or demand, but may, if he 
 please, pay the same notwithstanding the time limited 
 by the statute may have expired (a). But if the estate 
 be administered in the Chancery Division of the High 
 Court, any party to the suit is competent to take the 
 objection, although the executor may not have insisted 
 on it (b) . 
 
 Charge of real 
 estate for 
 payment of 
 debts. 
 
 Notwithstanding the period of six years limited for 
 the payment of simple contract debts, the debtor may, 
 by charging his real estate by his will with the payment 
 of his debts, and, a fortiori, by creating an express trust 
 for their payment out of his real estate, prevent the 
 operations of the statute on all such debts as have not 
 been barred by the statute in his lifetime (c). Eeal 
 estate, it will be remembered, was not formerly liable 
 to the payment of any debts which were not secured by 
 specialty binding the heirs (d) ; and the alteration, 
 which in this respect has been made in the law, affects 
 only such real estates as have not been charged by the 
 deceased with the payment of his debts. The creditors 
 therefore in whose favoiu- the charge is made acquire, 
 as before the alteration, the character of cestui que 
 trusts ; and in equity they will not be allowed to lose 
 their debts, because they do not go to law to enforce 
 payment when they have a trustee to pay them {c). 
 
 (z) Rhodes v. Smcthiirst, 6 Mee. 
 & Wels. 351 ; Freake v. Crane- 
 feldt, 3 Mylne & Cr. 499. 
 
 {a) Xorton v. Freeker, 1 Atk. 
 526 ; Fx parte Deicd)iey, 15 Ves. 
 498 ; Lowis v. Miimney, L. R., 4 
 Eq. 451. See Stahhchmidt v. 
 Lett, 1 Sma. & G-iff. 415. 
 
 (J) Sheicen v. VandfrJiorst, 1 
 
 Rus3. & M. 347; 2 Russ. &M. 75. 
 
 (c) Burke v. Jones, 2 Ves. & 
 Beames, 275 ; Htighes v. Wynne, 
 Turn. & E.USS. 307 ; Crallan v. 
 Oidton, 3Beav. 1. 
 
 {d ) See Principles of tlie Law 
 of Real Property, 81, 13th ed. ; 
 83, 14th ed. ; ante, p. 158. 
 
 ((■) Timi. & Russ. 309.
 
 OF TITLE. 635 
 
 But after twelve years tlio charge, if not enforced, will bo 
 barred like any other charge (/'). An express trust for 
 the payment of a man's debts out of his real estate was 
 formerly proof against any length of time {g) . But as 
 personal estate has always been primarily liable to tho 
 payment of all debts, a trust created by a testator 
 for the payment of his debts out of his personal estate 
 will not prevent tlie operation of the statute (h). 
 The Supremo Court of Judicature Act, 1873 (/), Express trust, 
 enacts (/.•), that no claim of a cestui que trust against 
 his trustee for any property held upon an express trust, 
 or in respect of any breach of such trust, shall be held 
 to be barred by any Statute of Limitation. But the 
 Real Property Limitation Act, 1874 (/), which, as 
 we have seen (m), came into operation on the 1st of 
 January, 1879, subsequently enacts (») that, after the 
 commencement of that Act, no action, suit or other pro- 
 ceeding shall be brought to recover any sum of money or 
 legacy charged upon or payable out of any land or rent 
 at law or in equity, and secured by an express trust, or 
 to recover any arrears of rent of or interest in respect 
 of any sum of money or legacy so charged or payable, 
 and so secured, or any damages in respect of such 
 arrears, except within the time within which the same 
 would be recoverable if there were not any such trust. 
 
 When the dividends upon any stock transferable at Unclaimed 
 tho Bank of England have not been claimed for ten 
 years, such stock, together with the unclaimed divi- 
 dends, is transferred to the account of the commis- 
 
 (/) Dundas \. Blake, 11 Ir. Eq. (A) Scott y. Jones, 4 CI. & Fin. 
 
 Rep. 138; Sug. EealProp. Stat. 382; Frcakc v. Cmncfeldt, 3 My. 
 
 p. 107 ; Jacquet v. Jacqitet, 27 & Cr. 499. 
 
 Beav. 322 ; Dickinson v. Tcesdalc, (/) Stat. 3G & 37 Vict. c. C6. 
 
 31 Beav. 511 ; stat. 37 & 38 Vict. (/•) Sect. 25, siib-s. (2). 
 
 c. 57, s. 8 ; see ayite, pp. 630. (/) Stat. 37 & 38 Vict. c. 57. 
 
 {g) See the author's Essay on {m) Ante, p. 630. 
 
 Eeal Assets, p. 40. («) Sect. 10.
 
 636 OF TITLE. 
 
 sioners for tlie reduction of the national debt (o) ; and 
 such, dividends, together with all the future dividends 
 on the stock, are invested by the commissioners in the 
 purchase of like stock, so as to accumulate (p). And 
 the governor or deputy governor of the bank for the 
 time being may order the transfer of such stock and the 
 payment of the dividends to any person showing, to his 
 satisfaction, a right thereto ; but in case such governor 
 or deputy governor shall not be satisfied of the justice 
 or legality of the claim, an order for transfer and pay- 
 ment may be obtained from the Chancery Division of 
 the High Court by petition in a summary way, stating 
 and verifying the claim {q). But no such transfer of 
 stock or payment of dividends, exceeding the sum of 
 201., can be made until three calendar months after 
 the application, nor until notice has been advertised in 
 one or more newspapers circulating in London and 
 elsewhere, as the governor and company of the bank 
 shall think fit ; which notice must state the name, 
 residence, and description of the person in whose name 
 the unclaimed stock or dividends stood when transferred 
 to the commissioners, and the amount thereof, and the 
 name of the claimant, and the time at which the trans- 
 fer or payment will be made if no other claimant shall 
 sooner appear and make out his claim. And when the 
 stock or dividends are directed to be transferred or paid 
 by any order of the Court, the notice must also state the 
 piu'port of such order (r) ; and any person may at any 
 time before the actual re-transfer of the stock, or pay- 
 ment of the dividends to any such claimant, apply to 
 
 (o) Stat. 33 & 34 Vict. c. 71, (p) Stat. 33 & 34 Vict. c. 71, 
 
 s. 51. The former Acts on tliis s. 54. 
 
 subject, stats. 56 Geo. III. c. 60 ; (q) Sect. 55 ; Ex parte Earn, 
 
 8 & 9 Vict. c. 62, and 24 Vict. 3 My. & Craig, 25 ; Sunt v. Tea- 
 
 c. 3, 8. 8, are now repealed by code, 6 Hare, 361. 
 
 Stat. 33 & 34 Vict. c. 69, (r) Stat. 33 & 34 Vict. c. 71, 
 
 ss. 56, 57.
 
 OF TITLE. 637 
 
 the Com-t by motion or petition to rescind or vary any 
 order made for such transfer or payment (s). 
 
 When a chose in action, whether legal or equitable, Notice of 
 is transferred from one person to another, notice of the chosls in 
 assignment should be given by the transferee to the «'^''^"- 
 person liable to the action, the riglit to bring which 
 is the subject of the transfer (/). Thus if a debt be 
 assigned, notice of the assignment should be given 
 to the debtor. If the subject of the assignment be 
 the right to stock standing in the name of a trustee, 
 notice of the assignment should bo given to such 
 trustee. Until such notice be given, it is evident 
 that the debtor may innocently pay the debt, or the 
 trustee transfer the stock to the transferor ; or the trans- 
 feror may fraudulently transfer his right over again to 
 a third person. The transferee, therefore, until he has 
 given notice to the party liable, has not done all that 
 lies in his power to perfect his title. The chose in Bankruptcy 
 action still remains the apparent property of the trans- 
 feror ; and in the event of his bankruptcy it was held 
 to pass to his creditors' assignees as property in his 
 order and disposition with the consent of the true owner 
 thereof (»). But the law has been altered in this 
 respect by the Bankruptcy Acts, 1869 and 1883 ; for 
 in each of these Acts things in action, other than debts 
 due to the bankrupt in the com-se of his trade or 
 business, have been expressly excepted from the opera- 
 tion of the *' reputed ownership" clause (.r). The 
 
 (4) Sect. 58. 257 ; Thompson v. Spiers, 13 Sim. 
 
 (/) Dearie v. Sail, Lovcridge v. 469 ; Bartlett v. Barilctt, 1 De 
 
 Cooper, 3 Russ. 1 ; BrighCs Gex & Jones, 127 ; He Jliighes^s 
 
 Trusts, 21 Beav. 430 ; Ho Fresh- Triisis, 2 Hem. & Mil. 89 ; Me 
 
 yield's Trust, 11 Ch. D. 198 ; and TFM's Tolici/, V.-C. M. 15 W. 
 
 Bee Stat. 36 & 37 Vict. c. 66, R. 529 ; sec ante, pp. 85, 224, 
 
 H. 25, sub-s. (6) ; ante, p. 6. 225. 
 
 (u) Ex parte Munro, Buck, (.r) Stats. 32 & 33 Vict. c. 71, 
 
 300 ; miliams v. Thorpe, 2 Sim, s. 15, par. (5) ; 46 & 47 Vict.
 
 638 or TITLE. 
 
 expression " things in action " in the Act of 1869 has 
 been held not to inchide shares in a joint-stock com- 
 pany, in respect of which no action need he brought, 
 the owner's title depending upon the register {>/). 
 It has been decided that a policy of life assui-ance 
 is a thing in action (z). Formerly, even the credi- 
 tors' assignees themselves would not have been safe, 
 unless they had given a similar notice to the person 
 liable to the action, the right to bring which was trans- 
 Inquiry as to f erred to them by the bankruptcy (r<) . The importance 
 ments^^^^""^" ^^ g^^^ing notice suggests the precaution that every 
 person about to accept an assignment of a chose in 
 action should inquire of the person liable to the action 
 or suit, whether he has had notice of any prior assign- 
 ment. And if there be two or more persons liable, 
 inquiry should be made of every one of them ; for 
 notice by a prior assignee to any one of them would be 
 equivalent to notice to all (h). It is also advisable that 
 a written answer should be obtained to every such 
 inquiry, in order that if the assignee should be misled 
 by a false answer, he may be enabled to recover 
 damages for the misrepresentation. For it has been 
 doubted whether the answer to such an inquiry be not 
 a representation concerning the ability of the intended 
 assignor within the meaning of Lord Tenterden's Act, 
 which rec[uires that all such representations be made in 
 writing signed by the party to be charged therewith (c). 
 The inquiry, however, thus recommended will not of 
 itself strengthen the title of the assignee, further than 
 
 c. 52, s. U ; ante, pp. 8G, 87 ; Ex J. 219. 
 
 parte Fletcher, In re BabihrUlge, ib) Smith v. Smith, 2 Cr. & M. 
 
 C. J. B., 26 W. R. 439, 231 ; Jileux v. Bell, 1 Hare, 73, 87. 
 
 ((/) Ex parte Union Bank of See Browne v. Savage, 4 Drew. 
 
 Manchester, In re Jaclcson, Law 635, 840. 
 
 Eep., 12 Eq. 354. (c) Lyde v. Barnard, 1 Mee. & 
 
 {£) Ex parte Ibbetson, In re Wels. 101 ; Sicann v. Phillips, 
 
 Moore, 8 Ch. D. 519. 8 Ad. & E. 457 ; see ante, pp. 122 
 
 {a) Me Ban's Trusts, 4 Kay & —124.
 
 OF TITLE. 639 
 
 "by assuring him that no previous assignment has heon 
 made. In order to obtain a good title, he must himself 
 give notice to the i^erson or one of the persons liable to 
 the debt or demand assigned to him. AVhen this has 
 been done his title will be secure, and will prevail over 
 that of any unknown prior assignee who may have 
 omitted to give such notice (d) . If the property con- 
 sist of money or stock standing in the name of the. pay- 
 master-general, or of securities in his possession (c), an 
 order of tlie Court sliould be obtained restraining 
 transfer or payment without notice to the assignee. 
 This order is called a stop order, and will have the Stop order. 
 same effect as notice of assignment given to any private 
 debtor (./'). If the property be stock standing in the 
 name of a trustee, who has died without any adminis- 
 tration having been taken out to his effects, a distringas Distringas. 
 obtained by tlie assignee to restrain the transfer of the 
 stock would have conferred on him the same priority as 
 notice to the trustee would have done had he been 
 living {g). And now, by the Rules of the Supreme 
 Coui't, 1883 (A), the service of the office copy of the 
 affidavit and of the duplicate of the filed notice therein 
 specified, shall have the same effect as a writ of dis- 
 tringas formerly had. "When the property consists of a Policies and 
 policy of assurance, or of shares in a joint-stock com- '^^^^'*^^- 
 pany, notice of the transfer should be given to the office 
 of the company {i). And with respect to policies of life Life policies, 
 assurance, it is, as we have seen, now provided that a 
 written notice of the date and pm'port of the assign- 
 
 [d) Dearie v. Ilall, Luveridgc & Coll. N. C. 4GG ; see ante, pp. 
 
 V. Cooper, 1 Russ. 1 ; Re Fresh- 334, 335. 
 field's Trust, 11 Ch. D. 198. (/<) Ord. XLVI. r. 8. See 
 
 (r) IFilliamsv. Si/moiids, Bcav. ante, pp. 335, 336. 
 523. (i) JFilliams v. Thorpe, 2 Sim 
 
 (/) Greening v. Beclc/ord, 5 Sim. 257 ; Thompson v. Spiers, 13 Sim 
 
 195; Su'agtiev.Su-agnc, 11 Beav. 469; JT'csty. licid, 2 Hare, 249 
 
 463. Martin v. Sedgwick, 9 Beav. 333 
 
 {g) Etty V. Bridges, 2 Yotuige Powks v. Pnge, 3 C. B. 16.
 
 G40 OF TITLE. 
 
 ment must bo given to the company in order to pass 
 the right to sue on the policy {k) . 
 
 Title through The title to personal property sometimes depends 
 &c. ' ' upon deeds, wills or other documents of title of the like 
 nature, and cannot he shown without their production. 
 Thus a reversionary interest in money in the funds, 
 settled by deed or will, may be mortgaged and sold 
 again and again before it becomes an interest in pos- 
 Abstract of session. In these cases the purchaser is entitled to an 
 ^ ®' abstract of the deeds, wills, &c., which compose the 
 
 title, in the same manner as if the subject of the con- 
 tract had beerr real estate ; and the original deeds and 
 the probates or ojEfice copies of the wills, must also in 
 like manner be produced for the verification of the 
 abstract (/). The purchaser is also entitled either to 
 the possession of the deeds, or, if this cannot be had, 
 to an acknowledgment in writing of his right to produc- 
 tion of them and to delivery of copies thereof (m). 
 Covenants for And when an assignment of any kind of personal 
 ^ ®* property is made by deed, it is usual for the assignor 
 
 to enter into covenants for the title similar to those 
 entered into under the like circumstances by the grantor 
 of real estate {n) . 
 
 Title to The vendor of shares in a joint-stock company is 
 
 bound merely to give such evidence of the constitution 
 of the company, as to show that the proposed transfer 
 will give a valid title to the shares sold (o). 
 
 {k) Stat. 30 & 31 Vict. o. 144, Williams'a Conveyancing Sta- 
 
 B. 3; ante, p. 296. tutes, 94—103. 
 
 (l) See Principles of the Law (w) See Principles of the Law 
 
 of Eeal Property, 449, 13th ed. ; of Real Property, 447, 13th ed. ; 
 
 478, 14th ed. ; Sobson v. £ell, 2 472, 14th ed. ; Williams's Con- 
 
 Beav. 17. veyancing Statutes, 74—93. 
 
 (;«) See Principles of the Law (o) Curling v. Flight, 2 Phill. 
 
 of Real Property, 462, 464, 13th 613. 
 ed. ; 495 498—502, 14th ed. ;
 
 OF TITLE. 641 
 
 A statute of the year 1859 provides that any person A person may 
 shall have power to assign personal property, now by i^iui^elf. 
 law assignable, directly to himself and another person 
 or other persons or corporation, by the like means as he 
 might assign the same to another {p). Before this Act 
 an assignment by A. to himself and B. of leasehold 
 property or choses in possession vested the w^hole of the 
 property in B. (q). The same Act renders criminally 
 punishable the concealment, with intent to defraud, of 
 any deed or instrument material to a title or of any in- 
 cumbrance or tlie falsification of any pedigree on which 
 a title depends {>•). It is enacted in the Conveyancing 
 and Law of Property Act, 1881 (.s), that a thing in 
 action may be conveyed by a person to himself jointly 
 with another person, by the like means by which it 
 might be conveyed by him to another person ; and 
 may, in like manner, be conveyed by a husband to his 
 wife, and by a wife to her husband, alone or jointly 
 with another person (t) . 
 
 From what has been said it will appear that the title Comparison 
 
 . , J • p • ^ A^ J_^ 1 1 of the title to 
 
 to personal property is lar more simple than that to j-eal and per- 
 real estate. And amongst the plans which have sonal estate, 
 appeared for the amendment of the law has been one 
 for adapting the machinery of the funds to the transfer 
 of landed property. Upon consideration, however, it 
 will perhaps appear that the greater complexity of the 
 title to lands arises partly from the nature of the pro- 
 perty, and partly from the more full power of disposi- 
 tion to wliich lands are subject. Lands, unlike stock, 
 
 {p) Stat. 22 & 23 Vict. c. 35, Vict. c. 38, s. 8. 
 
 8. 21 ; see Williams's Convey- («) Stat. 44 & 45 Vict. c. 41, 
 
 ancing Statutes, 224. s. 50, -which applies only to con- 
 
 (q) See Principles of the Law vcyancesmadeafter the 31st Dec. 
 
 of Real Property, 191, 13th ed. ; 1881. 
 
 198, 14th ed. {() See Williams's Conveyaiic- 
 
 (>•) Stat. 22 & 23 Vict. c. 35, in<j Statutes, 223—225, 391, 392. 
 8. 24, extended by stat. 23 & 24 
 
 W.P.P. T T
 
 (342 OF TITLE. 
 
 may be converted from arable to pasture, may be cut up 
 into roads, canals or railways, may be sold by the foot 
 for building piu'poses, may be let upon lease for terms 
 absolute or determinable, may be held for life, or in 
 tail, as well as in fee, and may be disposed of by con- 
 tingent remainders, shifting uses and executory devises, 
 without the intervention of any trustees. Personal pro- 
 perty, on the contrary, cannot be settled without the 
 intervention of trustees, in whom a great degree of per- 
 sonal confidence must necessarily be placed ; but when so 
 settled, the title to it is sometimes as long and intricate 
 as that to real estate. If the nature of lands could be 
 altered, or if landowners were willing, in order to save 
 themselves expense, to give up some of their powers of 
 disposition, the title to real estate might doubtless be 
 rendered as simple as that to personal property. To 
 the latter alternative, however, few, if any, would be 
 inclined to submit. Whilst, therefore, much might be 
 done to simplify and improve our laws of property by 
 an assimilation of the rules of real and personal estate, 
 where the history of each forms the only ground of 
 variety, care should be taken to preserve untouched 
 such distinctions as are founded on the broad basis of 
 practical difference.
 
 ( 643 ) 
 
 APPENDIX (A). 
 
 (Referred to, ante, pp. 388, 392. 
 
 Form of Letters Patent given in the First Schedule to the 
 Patents, Designs and Trade Marks Act, 1883 («). 
 
 VICTOEIA by the grace of God of the United Kingdom of 
 Grecat Britain and Ireland Queen Defender of the Faith to 
 all to whom these presents shall come greeting 
 
 Whereas John Smith of 29 Perry Street Birmingham in 
 the county of Warwick Engineer hath by his solemn declara- 
 tion represented unto us that he is in possession of an 
 invention for " Improveme^its in Seiving Machines''^ that he 
 is 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 (i) 
 
 And wheeeas the said inventor hath humbly prayed 
 that We would be graciously pleased to grant unto him 
 hereinafter together with his executors administrators and 
 assigns or any of them referred to as the said patentee our 
 royal letters patent for the sole use and advantage of his 
 said invention 
 
 And whereas the said inventor hath by and in his com- 
 plete specification particularly described the nature of his 
 invention (c) 
 
 And whereas We being Avilliug to encourage all inven- 
 tions which may be for the public good are graciously 
 pleased to condescend to his request 
 
 Know ye therefore that AVe of our especial grace certain 
 knowledge and mere motion do by these presents for us 
 our heirs and successors give and grant unto the said 
 patentee our especial licence full power sole privilege and 
 
 («) Stat. 46 & 47 Vict. c. 67. (c) See ante, pp. 384—387. 
 
 \h) See ante, pp. 378, 381. 
 
 T T 2
 
 644 APPENDIX. 
 
 authority that the said patentee by himself his agents or 
 licensee and no others may at all times hereafter during 
 the term of years herein mentioned make use exercise and 
 vend the said invention within our United Kingdom of 
 Great Britain and Ireland and Isle of Man {d ) 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 fi'om time to time accruing by reason of the said 
 invention during the term of fourteen years from the date 
 hereunder written of these presents (e) 
 
 And to the end that the said patentee may have and 
 enjoy the sole use and exercise and the fuU benefit of the 
 said invention We do by these presents for us our heirs 
 and successors strictly command all our subjects whatso- 
 ever within our United Kingdom of Great Britain and 
 Ireland and the Isle of Man that they do not at any time 
 dming 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 addi- 
 tion thereto or subtraction therefrom whereby to pretend 
 themselves the inventors thereof without the consent licence 
 or agreement of the said patentee in writing under his 
 hand and seal(y) on pain of incurring such penalties as 
 may be justly inflicted on such offenders for their con- 
 tempt of this our Royal command and of being answerable 
 to the patentee according to law for his damages thereby 
 occasioned 
 
 Provided that these our letters patent are on this 
 condition that if at any time during the said term it be 
 made to apjiear to us our heirs or successors or any six or 
 more of our Privy Council that this our grant is contrary 
 to law or prejudicial or inconvenient to our subjects in 
 general or that the said invention is not a new invention 
 as to the public use and exercise thereof within our United 
 Kingdom of Great Britain and Ireland and Isle of Man or 
 that the said patentee is not the fixst and true inventor 
 
 {d) See ante, pp. 393, 394. (/) See ante, p. 393. 
 
 (e) See ante, pp. 375, 376.
 
 APPENDIX. 645 
 
 thereof within this realm as aforesaid these our letters 
 l^ateiit shall forthwith detcrniino and be void to all intents 
 and purposes notwithstanding anything hereinbefore con- 
 tained 
 
 Provided also that if the said patentee 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 matter relating 
 thereto at the time or times and in manner for the time 
 being b}^ law provided (g) and also if the said patentee 
 shall not supply or cause to bo supplied for our service all 
 such articles of the said invention as may be required by 
 the ofRcors or commissioners 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 (A) then and 
 in any of the said cases these our letters patent and all 
 jirivileges and advantages whatever hereby granted shall 
 determine and become void notwithstanding anything 
 hereinbefore contained 
 
 Provided also that nothing herein contained shall pre- 
 vent the granting of licences in such manner and for such 
 considerations as they may by law be granted (/) 
 
 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 beneficial 
 sense for the advantage of the said patentee. 
 
 In witness whereof We have caused these our letters to 
 
 be made patent this day of one thousand eight 
 
 hundred and and to bo sealed as of the day of 
 
 one thousand eight hundred and {k). 
 
 (L.S.) 
 
 iff) See ante, pp. 37G, 377. (i) See ante, pp. 392, 393. 
 
 (/») See ante, pp. 383, 384. (k) See ante, p. 388.
 
 646 APPENDIX. 
 
 APPENDIX (B). 
 
 (Referred to, pp. 427, 455, 5G8, 588, 596.) 
 
 Marriage Settlement of Stock and of a Share of a Testator^ s 
 Residuary Estate upon the usual Trusts. 
 
 Date; parties. THIS INDENTUEE made the 28t]i day of October 
 1883 Between A. B. [^intended husband^ of [^descriptio7i] 
 of the first jiart C. D. [intended ivife'] of [descriptioti] of 
 the second part and E. F. of \_description'\ and G. H. of 
 [description'] who are in these present referred to as " the 
 trustees " of the third part 
 
 Recitals. Whereas a marriage is intended to be solemnized 
 
 between the said A. B. and 0. D. Antd whereas in pur- 
 suance of an agreement in that behalf entered into upon 
 the treaty for the said intended marriage the said A. B. 
 has transferred the sums of stock described in the schedule 
 hereto into the names of the trustees to the intent that the 
 trustees shall stand j)Ossessed thereof Upon trust for the 
 said A. B. until the said intended marriage and after the 
 solemnization thereof upon the trusts hereinafter declared 
 and subject to the provisions hereinafter contained con- 
 cerning the same And whereas L. D. late of \jlescriptioii\ 
 by his last will dated the 23rd day of January 1880 after 
 bequeathing 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 conversion into money and for 
 payment 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 thereto his residuary estate should be in trust for 
 his daughters E. D. E. D. and the said 0. D. to be equally
 
 APPENDIX. 647 
 
 divided between thorn and appointed the said J. K. and 
 L. M. executors of his said will And ■whereas the said 
 L. D. died on the 1st day of December 1883 and his said 
 ■will was proved on the 6th day of March 188^ in the 
 principal registry of the Probate Division of the High Court 
 of Justice by both the said executors («) Akd whereas 
 upon the treaty for the said intended marriage it was 
 agreed that the said CD. should assign the said share of 
 the residuary estate of the said L. D. to which she is 
 entitled under his said will to the trustees upon the trusts 
 hereinafter declared and sxibject to the provisions herein- 
 after contained concerning tho same and that she should 
 enter into the covenant hereinafter contained for the 
 settlement of other property to which she may now bo 
 or may hereafter during her intended coverture become 
 entitled (b) 
 
 Now THIS Iist)exttjre WITNESSETH that in pursuance of 1st testatum: 
 the said agreement in this behalf and in consideration of -^^^^^lo^^ent 
 the said intended marriage (c) the said C. D. doth hereby residuary 
 assign as settlor {d) unto the trustees (e) All that tho ^^'^^*'-'- 
 share and interest of the said C. D. under the said will of 
 the said L. D. in any real or personal estate which now is 
 or may at any time become subject to the trusts of the said 
 will 
 
 To HAVE AND TO HOLD the Same premises unto the Habendum, 
 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 the 
 provisions hereinafter contained concerning the same 
 
 And this Indenture also "witnesseth that in further 2nd testatum: 
 pursuance of the agreement entered into upon treaty for peckration of 
 the said intended marriage and for the consideration 
 aforesaid it is hereby agreed and declared that after the 
 solemnization of the said intended marriage the trustees (/) 
 shall either permit the sums of stock described in the To permit 
 
 (a) See ante, pp. 517—519. ing Statutes, 74, 86. 
 
 (*) See afite, pp. 469, 470. {e) See a)iie, pp. 481, 482. 
 
 (e) See ante, pp. 471, 472. (/) See Williams's Conveyanc- 
 
 {d) See Williams's Conveyanc- ing Statutes, 194 — 198.
 
 648 
 
 APPENDIX. 
 
 present in- 
 vestments to 
 remain, or to 
 convert them 
 into money. 
 
 For invest- 
 ment. 
 
 scliedule hereto or any of tliem 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. 13. a^d C. D. during their joint lives and of the survivor 
 during his or her life and after the death of such survivor 
 at the discretion of the trustees (</) sell or convert into 
 money the said sums of stock or any of them or any part 
 or parts thereof respectively 
 
 Ais'D SHALL with such consent or at such discretion as 
 aforesaid invest any money which shall be so produced 
 and any money which shall be received by the trustees in 
 respect of the said share of the residuary estate of the said 
 L. D. hereinbefore assigned 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 the 
 legal control of the trustees in any of the parliamentary 
 stocks or public funds or in government securities of the 
 United Kingdom or India or upon freehold copyhold lease- 
 hold or chattel real securities in Great Britaia but not in 
 Ireland (such leasehold or chattel real securities to be upon 
 hereditaments to be held for a term of which not less than 
 fifty years shall be unexpired at the date of investment) or 
 in the capital stock of the Bank of England or stock of the 
 Metropolitan Board of Works or in or uj^on the debentures 
 or debenture stock or preference or guaranteed stock or shares 
 of any railway canal water or dock company in Great Britain 
 which shall have paid a dividend on its ordinary capital 
 stock for each of the three years last preceding the invest- 
 ment thereon or in or on the stocks shares or securities of 
 any undertaking in Great Britain or India the dividend or 
 interest on which is guaranteed by the government of 
 Great Britain or India or in any annuity whether now 
 existing or hereafter to be created the payment of which is 
 charged on the revenues of India or in the funds bonds or 
 other securities of any British colonial government but not 
 in any other mode of investment (h) 
 
 {g) See Williams's Conveyanc- 
 ig- Statutes, 194—198. 
 (A) See ante, pp. 450—455 ; 
 
 Williams's Conveyancing- Sta- 
 tutes, 206—209; Williams on 
 Settlements, 170—175.
 
 APPENDIX. 
 
 649 
 
 A^^) MAY vriih such consent or at siicli discretion as Tower to vary 
 aforesaid from time to time vary or transpose all or any of iiivebtmente. 
 the investments of the projierty for the time being subject 
 to the trusts of these presents for or into any other or 
 others of the description hereby authorized (»') 
 
 And shall pay the income of the sums of stock To pay in- 
 described in the schedule hereto and of the investments ^^J^i^,^ ^y 
 thereof to the said A. B. during his Hfe and after his death husbaud to 
 to the said C. D. during her life {k) th"n\°Jwife 
 
 And shall pay the income of the said share of the for life, 
 residuary estate of the said L. D. hereinbefore assigned To pay in- 
 and of the investments thereof to the said C. D. during j^g^tled by 
 
 her life and after her death to the said A. B. during his wife to her 
 ff ,j. for lift- then 
 
 ^^Q{t) to husband 
 
 And after the death of the said A. B. and C. D. shall for life. 
 stand possessed of the sums of stock described in the Trusts for the 
 schedule hereto and the said share of the residuary estate children of the 
 of the said L. D. hereinbefore assigned and the investments marriage. 
 and income thereof respectively in trust for all or such 
 one or more exclusively of the others or other of the issue 
 (■u^hether children or more remote) of the said intended 
 marriage such remoter issue to be born during the lives of 
 the said A. B. and C. D. or the life of the survivor of 
 them or within twenty-one years after the death of such 
 survivor(m) at such age or time or respective ages or times 
 if more than one in such shares and with such future or 
 executory or other trusts for the benefit of the said issue 
 or some or one of them and with such provisions for their 
 respective advancement (either overreaching the interests 
 prior to this power or not) or maintenance or education at 
 the discretion of the trustees or trustee for the time being 
 of these presents or of any other persons or person and 
 upon such conditions with such restrictions and in such 
 manner as the said A. B. and C. D. shall by any deed or 
 
 (i) See Williams on Settle- tutcs, 418, 419; Williams on 
 
 ments, 175. Settlements, 127, 128, 149. A 
 
 (/i) See a)itc, p. 448 ; Williams general restraint on anticipation 
 
 on Settlements, 149. is inserted further on. 
 
 (Z) See ante, pp. 585, 595, 59G; (m) See ante, pp. 435, 443, 444. 
 Williams's Conveyancing Sta-
 
 650 
 
 APPENDIX. 
 
 Hotchpot 
 clause. 
 
 Advancement 
 clause. 
 
 Trusts in 
 default of 
 children. 
 
 deeds or writing or writings sealed and delivered with or 
 without power of revocation and now 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 (n) 
 
 And in default of any and subject to every such 
 appointment IN TEUST for all the children or any the child 
 of the said intended marriage who 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 (o) 
 
 Peovided always that no child who or whose issue shall 
 take any part of the said trust premises under any appoint- 
 ment in pursuance of either of the powers lastly herein- 
 before contained shall in default of appointment to the 
 contrary have or be entitled to any share of the un- 
 appointed 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 accord- 
 ingly (p) 
 
 Provided always and it is hereby agreed and de- 
 clared that it shall be lawful for the trustees after the 
 death of the said A. B, and 0. D. or in their his or 
 her lifetime with their his or her consent in writing to 
 raise any part or parts not exceeding altogether one-half 
 of the then expectant or presumptive or vested share of 
 any child of the said intended marriage under the trusts 
 hereinbefore declared and to pay or apply the same for 
 his or her advancement or benefit as the trustees shall 
 think fit {q) 
 
 And it is hereby agreed and declared that if there 
 shall be no child of the said intended marriage who being 
 a son shall attain the age of twenty-one or being a daughter 
 
 (h) See ante, pp. 436 — 448 ; 
 WHliams on Settlements, 150 — 
 160. 
 
 (o) See ante, 445—448; Wil- 
 liams on Settlements, 160 — 164. 
 
 (p) See ante, pp. 439, 440 ; 
 
 "Williams on Settlements, 164 — 
 166. 
 
 {q) See Williams on Settle- 
 ments, 166. As to maintenance, 
 sec ante, pp.445 — 449 ; Williams's 
 Conveyancing Statutes, 210 — 214.
 
 APPENDIX. 651 
 
 shall attain that age or marry under that ago 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 under 
 
 any of the trusts or powers herein contained upon the 
 
 trusts following (that is to say) • 
 
 As TO the sums of stock described in the schedule hereto As to fund 
 
 and the investments and income thereof or so much thereof f^^^]^^ ^7 
 
 nusband. 
 
 respectively as shall not have become vested or have been 
 
 applied under any of the trusts or powers herein contained 
 
 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 (r) 
 
 And as to the said share of the residuary estate of the As to fund 
 
 said L. D. hereinbefore assigned and the investments and settled by 
 
 "witc. 
 income thereof or so much thereof respectively as shall not 
 
 have become vested or have been applied under any of the 
 trusts and powers herein contained after the death of the 
 said A. B. and such default or failure of children as afore- 
 said which shall last happen In trust for such person 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 (s) 
 
 And in default of any and subject to every such 
 appointment Upon the trusts following (that is to say) 
 If the said C. T>. shall survive the said A. B. then in trust 
 for the said C. D. absolutely {t) But if the said A. B. 
 shall survive the said C D. then in trust for such person 
 or persons as under the statutes for the distribution of the 
 effects of intestates (ti) would have 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 
 
 {r) See Williams on Settle- {() See ante, p. 432, 
 
 ments, 168 ; ante, pp. 432, 433. {ic) Sec ante, p. 557. 
 
 (s) See ante, pp. 436, 437, 588.
 
 652 APPENDIX. 
 
 the sliarcf? in wliicli they would have taken under the same 
 statutes (r) 
 Covenant by AxD THE SAID C. D. hereby covenants -vrith the trustees {y) 
 
 hcr^'otheTo^ ^^^^ ^^ t^^ ^^^^ ^- ^- ^°^ ^^ o^ ^^ during the said intended 
 after-acquired coverture she shall at one and the same time and from 
 ^b°v^'^th *^^® ^^^ ^^® same source become seised or possessed of or 
 
 value of £200. entitled to or empowered absolutely to dispose (otherwise 
 than by will) of any real or personal property exceeding 
 the value of 200/. (except jewels trinkets ornaments fur- 
 niture plate pictures prints and books 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 or trustee 
 for the time being of these presents convey assign and 
 assure the said real or personal j)roperty to or otherwise 
 cause the same to be vested in the said trustees or trustee 
 Upon trust that they or he shall with all convenient speed 
 and in such manner as the}' or he shall think fit (but as to 
 reversionary property not until it shall fall into possession 
 unless it shall appear to the said trustees or trustee that 
 the capital of the trust estate will be probably injured by 
 deferring the sale) sell or 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 or securities herein- 
 before 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 proj)erty as shall consist of money or of such 
 stocks funds shares or securities as aforesaid and of the 
 income thereof resj)ectively upon the trusts hereinbefore 
 declared and subject to the provisions hereinbefore con- 
 tained concerning the said share of the residuary estate of 
 
 {x) See "Williams on Settle- (y) See ante, pp. 159, 160; 
 
 ments, 144, 145, 168, 169 ; ante, Williams's Conveyancing Sta- 
 
 pp. 557, 558 ; Williams's Con- tutes, 234—238, 418, 419, 447. 
 veyancing Statutes, 456 — 460.
 
 APPENDIX. 653 
 
 the said L. D. hereinbefore assigned and the investments 
 and income thereof respectively (2) 
 
 Provided always and it is hereby agreed and Restraint on 
 DECLARED that the said C. D. shall have no power during ^^ icipation. 
 her said intended or any future coverture to dispose by 
 way of anticipation of any interest whatever in any pro- 
 perty to which she may be or become entitled by virtue of 
 these presents (a) 
 
 Provided always and it is hereby agreed and Power to in- 
 DECLARED that it shall be lawful for the trustees (b) at the ^^^^^ ^^T ^"^"81 
 
 moiiGy in 
 
 request in writing of the said A. B. and C. D. during their purchase of 
 
 joint lives and of the survivor of them during his or her ]^^^ *° ^® 
 , . . held on trust 
 
 liie to convert into money any property or investments for sale. 
 
 which shall for the time being be subject to the trusts of 
 these presents and to invest the money which shall be so 
 produced or to invest any other money which shall for the 
 time being be subject to the trusts of these presents and 
 which ought to be invested in the purchase of any 
 messuages lands tenements or hereditaments (c) situate or 
 arising {d) in England or Wales and held for an estate of 
 inheritance of freehold copyhold or customary tenure or for 
 any term of years whereof not less than fifty years shall be 
 unexpired at the time of purchase 
 
 And it is hereby agreed and declared that any 
 hereditaments which shall be so purchased shall be con- 
 veyed to the trustees or trustee for the time being of these 
 presents for all the estate or interest which shall have been 
 purchased therein Upon trust for sale (e) at the request 
 in writing of the said A. B. and C. D. during their joint 
 lives and of the survivor of them during his or her life and 
 after the death of such survivor at the discretion of the 
 said trustees or trustee and to stand possessed of the money 
 
 (z) See ante, pp. 469—471, 473, of Real Property, 5, 12—14, 13th 
 
 596. ed.; 5, 6, 12—15, 14th ed. ; Wil- 
 
 {a) See ante, -p-p. 5S5 — 587,596; liams's Conveyancing Statutes, 
 
 Williams's Conveyancing Sta- 170. 
 
 tutes, 383, 418,419, 447; Williams (d) The word " arising" is used 
 
 on Settlements, 133 — 143, 149. as being appropriate to incorpo- 
 
 (J) See Williams's Conveyanc- real hereditaments, 
 
 ing Statutes, 194—198. {c) See Williams's Conveyanc- 
 
 (c) See Principles of the Law ing Statutes, 185 — 189.
 
 654 
 
 APPENDIX. 
 
 Application of 
 I'ents and 
 profits of pur- 
 chased land. 
 
 Power to lease 
 
 purchased 
 
 lands. 
 
 Power to ap- 
 portion 
 blended trust 
 funds. 
 
 to arise from any such sale upon the same trusts and sub- 
 ject to the sumo provisions as the money laid out in the 
 purchase of the same hereditaments would have been sub- 
 ject to if the same money had not been so laid out 
 
 And it is nEREBY agreed and declared that any here- 
 ditaments which shall be purchased imder this present 
 power shall be considered as money and be subject to the 
 same trusts in all respects as the money laid out in the 
 piu-chase of the same hereditaments woidd have been 
 subject to if the same money had not been so laid out (_/). 
 
 And that until any hereditaments which shall be so 
 purchased shall have been sold the rents and profits of all 
 or any part of the same hereditaments which shall for the 
 time being remain ixnsold shall be paid and applied as if 
 such rents and profits were income arising- from invest- 
 ments duly made otherwise than in the piu'chase of here- 
 ditaments in pursuance of the trusts declared by these 
 presents of the money which shall have been laid out in 
 the purchase of the same hereditaments 
 
 Provided always and it is hereby agreed and declared 
 that it shall be lawful for the trustees or trustee for the 
 time being of these presents upon such recj[uest or at such 
 discretion as aforesaid to demise any hereditaments which 
 shall have been so purchased as aforesaid or any part or 
 parts thereof at rack rent for any term of years not exceed- 
 ing twenty-one years to take efl'ect in possession or within 
 six calendar months from the making of the demise 
 
 Provided always and it is hereby agreed and declared 
 that if in the execution of any of the trusts or powers of 
 these presents it shall become necessary to divide or appor- 
 tion between or among two or more persons the several 
 fimds the trusts whereof are hereinbefore declared and all 
 or any of the trust money stocks funds shares or secimties 
 of which the said trust funds shall then consist shall be 
 so blended together that it shall be doubtfid 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 and securities 
 (/) See ante, pp. 455, 456.
 
 APPENDIX. 
 
 655 
 
 between or among tlie several persons entitled thereto in 
 such manner as the trustees shall deem just and reasonahle 
 according to the resi^ective rights and interests of such per- 
 sons And such division or apportionment shall Lo as bind- 
 ing and conclusive upon aU persons then or thereafter to be 
 interested in the premises as if the same had been duly 
 made by a Court of competent jurisdiction {g) 
 
 And it is hereby agreed and declared that the said Persons to 
 
 A. B. and C. D. During their ioint lives and the survivor appt>"itne-w 
 
 . trustees. 
 
 during his or her life shall be the proper persons and 
 
 person to appoint new trustees or a new trustee of these 
 
 presents {h) 
 
 And that (in addition to the powers and indemnity and Special power 
 right to reimbursement by law given to trustees {() ) the ° ^^^ ^^^' 
 trustees shall bo at liberty to dispense wholly or partially 
 with the investigation or production of the lessor's title on 
 lending money on leasehold securities or otherwise to lend 
 on any security or to purchase any hereditaments "with less 
 than a marketable title and shall not be answerable for 
 any loss thereby occasioned {Jc) 
 
 In "witnt:ss whereof the said parties to these presents Attestation 
 have hereunto set their hands and seals the day and year ^^''^^^<^- 
 first above written 
 
 The SCHEDULE above referred to. 
 £2000 Consolidated £Z per cent. Bank Annuities 
 £350 Capital Stock of the Bank of England 
 £2460 Debenture Stock of the London and North Western 
 
 Railivay Company 
 £500 South Aicstralian Inscribed Stock 
 
 Note. — ^Notice of the assignment to the trustees of the 
 share of L. D.'s residuary estate must bo given to his 
 executors {I). 
 
 {g) As to trustees' receipts and "Williams's Conveyancing Sta- 
 
 powers to compromise, &c., see tutes, 17G — 179. 
 ante, pp. 456 — 458 ; Williams's (i) See ante, pp. 465 — 467. 
 
 Conveyancing Statutes, 189 — {k) See Williams's Conveyanc- 
 
 lOi. ing Statutes, 15, 16. 
 
 {h) See ante, pp. 458—460 ; (/) See ante, pp. 637—639.
 
 ( 657 ) 
 
 INDEX. 
 
 Abilitt, representation as to, 124, G38. 
 Absence beyond the seas, saving of disability of, 631. 
 Absteact of title, GIO. 
 Acceptance of goods, what is, 50. 
 of offer, 122. 
 of bill of exchange, 125. 
 Acceptor of a bill, liability of, 131. 
 AcCTTMULATiox, restraint on, 435. 
 Act of bankruptcy, what is, 166, 179, 180, 200—203. 
 
 obsolete acts of bankruptcy, 203 — 208. 
 bondjide transactions valid notwithstanding, 263. 
 See also Baxkextptcy. 
 Action, chose in, 4, 5, 6, 7, 97, 324, 483, 029. See also Chose in 
 Action. 
 
 Actions, 162. 
 
 now commenced by writ of summons, 112, 163. 
 real, personal and mixed, 3. 
 ex delicto and ex contractu, 97, 100. 
 personal, 3, 101. 
 for dilapidations, 103, 104. 
 of detinue, 3. 
 
 of trover and conversion, 30, 56. 
 of replevin, 3. 
 of debt, 5, 107. 
 
 by and against mamod woman, 581, 591, 599 — 602. 
 of debt by husband for arrears of wife's rent, 575. 
 limitation of, 628—634. 
 Ademption of specific legacy, 539. 
 Adjudication of bankruptcy, 212. 
 advertisement of, 213. 
 gazette, 213. 
 
 power of Coui-t to annul adjudication, 272. 
 W.P.P. u u
 
 658 INDEX. 
 
 Administeation of estate of deceased person, 528 ct seq, 553 ct seq. 
 priority of payments, 529. 
 administration order, 532. 
 originating summons to obtain decision on certain 
 
 questions, 533. 
 stamp on letters of, 556. 
 exemptions from, 556. 
 limited, 551. 
 husband's right to, of his wife's effects, 575. 
 
 Administeatoe durante minore mtate, 513, 554. 
 who ajjpointed, 551. 
 joint, 552. 
 
 rights and powers of, 553, 
 application to Court by, 554. 
 his year, 554. 
 durante abseniid, 555. 
 pendente lite, 555. 
 cum testamento annexo, bbb. 
 office of, not transmissible, 556. 
 de bonis non, 557. 
 
 not bound to plead the Statute of Limitations, 634. 
 of convict's property, 59. 
 
 Admieaxty, High Court of, 94, 99, 146. 
 
 jurisdiction transferred to the High Court of Justice, 95. 
 of County Courts, 95. 
 Admission of debt, 207. 
 Advancement to children, to be accounted for in distribvition, 558. 
 
 form of power of, in a settlement, 650. 
 Adveetisement of adjudication on bankruptcy, 213, 
 
 of receiving order, 217. 
 Affidavit of debt, filing an, 207. 
 AFTEE-acquired property of bankrupt, 269. 
 
 of wife, covenant to settle, 469, 470, 652. 
 
 Agents, 626. 
 
 Ageeements, which are required to be in writing, 47, 48, n., 49, 51, 
 52, 117. See also Conteacts. 
 stamp on, 119, n. 
 by letter, 123. 
 bonds for performance of, 162. ' 
 
 AaRicuLTXTEAL fixtures, 16, 17. 
 
 Holdings (England) Acts, 1875 and 1883. .16, 17. 
 removal of fixtures, 18. 
 
 Alien, 57. 
 
 may be bankrupt, 199.
 
 INDEX. 659 
 
 Alienation of choses in possession, 41, 44. 
 personal chattels, 44, 47. 
 void, 57. 
 
 involuntary, 81, 172. 
 Court may order a sale, 84. 
 on bankruptcy, 85. 
 of clioses in action, 170, 32G, 570. 
 growth of riglit of testamentary, 505. 
 See also Assignment. 
 Alimony, 616. 
 
 Allowance of bankrupt, 242. 
 Alteeation of a deed, 135. 
 Animals fcrcc natures, 22. 
 Annitities, Bank. — See Stock in the Funds. 
 
 savings bank annuities, 368. 
 Annuity, apportionment of, 429. 
 
 apportionablo if given for maintenance, 429. 
 legacy duty on, 538. 
 warrant of attorney to secure, 150. 
 personal, 324. 
 
 interest of married woman in, 597. 
 perpetual annuity is personal estate, 329 . 
 Anticipation, restraint on, 585, 587, 596, 653. 
 Appaeent possession, 67. 
 Appeals in bankruptcy, 275 — 277. 
 Appointment of portions, 437. 
 illusory, 438. 
 exclusive, 438, 439. 
 voluntary, 436. 
 none to executors or administrators of deceased objects, 
 
 440. 
 amongst a class, 440. 
 to issue of a child, when good, 441. 
 fraudulent by a father, 442. 
 creating a perpetuity, 443. 
 of new trustees, 458, 460, 463. 
 by wife in favoiu' of her husband, 588. 
 powers of, 437, 439, 443, 525. 
 given to wife, 588. 
 form of power of, amongst children or other issue, 649. 
 by wife, 651. 
 Appoetionment of income, 428. 
 
 Act, 1870.. 428, 430. 
 
 meaning of "dividends," 431. 
 power to apportion blended trust funds, 654. 
 
 u u2
 
 660 " INDEX. 
 
 ArPEENTiCE to banla-upt, preferential claim, 252, 
 
 Arbitration, 304, Ix, Ixi. 
 
 jurisdiction of the Courts in matters refeiTcd to, 304, 
 
 Act for detcnnining differences by, 307. 
 
 every submission may bo made a rule of Court, 309, 
 
 Ixi. 
 revocation of submission to, 309. 
 bankruptcy does not detennine submission, 312. 
 death of parties, 312. 
 
 Aebiteatoe may state special case, 317. 
 
 on failure of parties, judge may appoint, 311, Lxi. 
 
 death of, 312. 
 
 appointment of, 313. 
 
 two may appoint umpire, 320. 
 
 on failure of parties, judge may appoint umpire, 320. 
 
 Aeeange3(IENTS by deed between a debtor and his creditors, 181, 183. 
 regulations as to, 183, 220—223. 
 
 under control of Court of Bankruptcy, 194, 219 — 224. 
 See also Liquidation. 
 
 Aeeeaes of rent, 158. 
 
 of rent, limitation of actions for, 631, Ixiii. 
 
 action by husband for, of rent of wife's estate, 575. 
 
 of interest on bond, 161. 
 
 of interest, limitation of actions for, 631. 
 
 of dower, 631. 
 
 Aeeest on mesne process, 156. 
 of debtor, 227. 
 
 Articles of association, 355. 
 
 Aeticles qua ipso usii conmmunUir, 426. 
 
 Assent of executor, 513. 
 
 Assets, executor not liable beyond amount of, 535. 
 
 Assignees of bankrupt, 85, 175. 
 
 title related back to act of bankruptcy, 62, 258. 
 
 former and present enactments, 259, 260. 
 ofBcial, 85, 224. 
 of insolvent, 287. 
 marine policies, 171, 302. 
 
 Assignment of choses in possession, 44, 47. 
 
 of choses in action, 5, 6, 172, 298, 578. 
 
 notice of, 6, 172, 298, 637. J 
 
 bankruptcy of transferor, 637. s 
 
 of breaches, 162. 
 of policies of life insurance, 171, 297, 298, 639.
 
 INDEX. GGl 
 
 Assignment of marine policies, 171, 302. 
 of letters patent, 39-1. 
 
 as to the necessity of a deed, 394, and u. («). 
 of coijyright, 102. 
 in trust for creditors, 175, 179, 180. 
 of wife's reversionary choses in action, ■178, 480. 
 inquiry as to jjrior, of chose in action, 638. 
 a person may assign to himself, 641. 
 Association, memorandum of, 353, 354. 
 
 articles of, 355. 
 Assumpsit, HI. 
 ATTAcniTENT of debts, 173. 
 
 adverse claim, or lien, 175. 
 Attestation clause in settlement, form of, 655. 
 Attoeney, all attornies now solicitors, 144. 
 See SoLiciTOE. 
 warrant of, 149. 
 
 execution and attestation of warrant of, 151. 
 waiTaut of, fonnerly executed by insolvent debtor, 290. 
 power of, on assigning a legal chose in action, 171. 
 power of, construed strictly, 026. 
 revocation of, 626, n. 
 Auction, sale by, 52. 
 Award, 313. 
 
 time of making, 313. 
 
 enlargement of time of making, 313. 
 
 attendance of parties, 315. 
 
 mode of proceeding, 315. 
 
 must be certain and final, 315. 
 
 setting aside, 317. 
 
 effect of, 321. 
 
 performance of, 322. 
 
 for payment of money creates a debt, 321. 
 
 under seal not a deed, 322. 
 
 stamp on, 323, n. 
 
 limitation of actions on, 632. 
 
 B. 
 
 Bailee, possession of, 33, 34, 45, 51. 
 
 Bailment, 32. 
 
 simple, 33.
 
 6G2 INDEX. 
 
 B.VNK annuities.— See Stock in the Funds. 
 notes, title to, 622. 
 issuing notes, 351. 
 
 Bailee's protection as to presented draft, 130. 
 
 Ban:^inq companies, 345. 
 
 Act for incorporation of, 348. 
 
 sale of shares, 3G5. 
 
 interest of married woman in deposits in, 597. 
 
 Bankuxiptcy, alienation of choses in possession on, 85. 
 
 goods of wliicli a bankrupt is reputed owner, 85 — 87. 
 
 fonner revival of debt barred by, 116. 
 
 Court of, consolidated with the Supreme Court of Judi- 
 cature, 147. 
 
 administration of estate of deceased debtor, 153, 159, 
 166, 282, 492, 529. 
 
 receiving order in lieu of committal, 156. 
 
 discharge from debt by bankruptcy, 196. 
 
 Statutes, Hen. VIII. to 1882. .196, 197. 
 
 Act of 1883.. 197. 
 
 Rules, 1883, regulating procedure, 197. 
 
 persons subject to the bankruptcy laws, 198. 
 
 no difference between traders and non-traders by the 
 Act of 1883.. 199. 
 
 acts of bankruptcy, 166, 179, 200—203. 
 
 history of present acts of bankruptcy, 201 — 203, notce. 
 
 obsolete acts of banki-uptcy, 203 — 208. 
 
 proceedings in bankruptcy, 209. 
 
 petition, 209. 
 
 receiving order, 210, 212, 216. 
 
 commission, 210. 
 
 Coui't of Bankruptcy, 210. 
 
 fiat, 210, 212. 
 
 London Court, 147, 211. 
 
 jiu'isdiction in bankruptcy now exercised by High Court 
 and County Courts, 211. 
 
 jDOwers of County Court, 211. 
 
 adjudication under Acts of 1849, 1861, and 1869. .212. 
 
 proceedings under the Act of 1883., 212. 
 
 first meeting of creditors, 212. 
 
 debtor's statement of affairs, 212, 218. 
 
 public examination of debtor, 212, 218. 
 
 adjudication of bankruptcy, 212. 
 
 advertisement of adjudication, 213. 
 
 gazette, 213, 217. 
 
 first proceedings under the Act of 1883. .213. 
 
 conditions on which creditor may petition, 213,
 
 INDEX. 063 
 
 Bankktjptcy, secured creditor, 213, 217. 
 
 procecdiuga aud order in creditor's petition, 214. 
 
 debtor's petition and order thereon, 215. 
 
 petition, where to be presented, 216. 
 
 attestation of petition, 216. 
 
 deposit, 216. 
 
 effect of receiving order, 216. 
 
 official receivers, 217. 
 
 special manager, 217. 
 
 interim receiver, 217. 
 
 staying action or process against debtor, 217. 
 
 advertisement of receiving order, 217. 
 
 proceedings after receiraig order, 217. 
 
 first aud other meetings of creditors, 218. 
 
 power for creditors to accept and Court to approve 
 composition or arrangement, 220. 
 
 rcgTilations as to composition or arrangement, 220 — 223. 
 
 effect of composition or scheme, 223. 
 
 power to accept composition or scheme after adjudica- 
 tion, 223. 
 
 vesting of bankrupt's property, 224. 
 
 assignees, 85, 175, 224. 
 
 official assignees, 225. 
 
 creditors' assignee, 225. 
 
 trustee, 85, 175, 176, 225. 
 
 committee of inspection, 225, 231. 
 
 administration of estate under Act of 1883. .226. 
 
 duties of debtor as to discovery and realization of pro- 
 perty, 226. 
 
 arrest of debtor, and seizure of books, goods, &c., 227. 
 
 discovery of debtor's property, 228. 
 
 apxDointment of trustee, 229 — 231. 
 
 appointment of joint trustees, 231. 
 
 removal of trustee, 231. 
 
 remuneration of trustee, 231, 232. 
 
 description of property divisible amongst creditors, 85, 
 233. 
 
 vesting and transfer of property, 234. 
 
 disclaimer of onerous property, 234. 
 
 limitation of time for disclaimer, 235. 
 
 person injured by operation of disclaimer deemed to be a 
 creditor, 237. 
 
 possession of property by trustee, 237. 
 
 sequestration of benefice, 238. 
 
 appropriation of portion of pay or salary to creditors, 
 239. 
 
 powers of trustee to deal with property, 239.
 
 664 INDEX. 
 
 Bankextptcy, powers of trustee ■with poiimssion of committee, 240 — 
 242. 
 compromise or other aiTaugemont, 241. 
 management of property by bankrupt, 242. 
 allowance to bauki-upt for maintenance or service, 242. 
 discretionary powers of trustee and control thereof, 
 242. 
 . appeal to Court against trustee, 243. 
 control of Board of Trade over trustees, 243. 
 money received by trustee, 243. 
 payment of money into Bank of England, 244. 
 trustee not to pay into private account, 245. 
 trustee's books of account, 245. 
 audit by committee of ins]3ection, 246. 
 
 by Board of Trade, 246. 
 trustee's annual statement, 246. 
 distribution of bankrupt's property, 246. 
 
 declaration and distribution of dividends, 246. 
 
 joint and separate dividends, 247. 
 
 provision for creditors residing at a distance, &c., 
 
 247. 
 right of creditor who has not proved debt before 
 
 declaration of a dividend, 248. 
 final dividend, 248. 
 no action for dividend, 249. 
 right of bankrupt to surplus, 249. 
 all debts paid rateably, 249, 251. 
 crown debts, 249. 
 judgment debt, 250. 
 rent, 250. 
 priority debts, 250, 
 rates and taxes, 250. 
 wages, 251. 
 
 preferential claim in case of apprenticeship, 252. 
 proof of debts, 252. 
 description of debts provable, 253. 
 estimate of contingent liabilities, 253. 
 definition of liability, 254. 
 mutual credit and set-off, 254. 
 
 power of landlord to distrain for one year's rent, 255. 
 proof for rent, 255. 
 rules as to proof of debts, 255. 
 secured creditor, 256. 
 proof in respect of distinct contracts, 257. 
 periodical payments, 257. 
 intei-e&t on debts, 257. 
 debt payable at a future time, 258.
 
 INDEX. 660 
 
 Bankeuptcy, title of assignees related back to the act of banki'uptcy, 
 258. 
 former enactments, 2o9, 2G0. 
 present provisions, 260. 
 rclatiou back of trustee's title, 2G0. 
 restriction of rights of creditor under execution or 
 
 attachment, 260. 
 duties of sheriif as to goods taken in execution, 261. 
 avoidance of voluntaiy settlements, 262, 472. 
 covenant for future settlement, avoidance of, 262. 
 avoidance of preference in certain cases, 263. 
 protection of transactions bo/id fule 'without notice, 
 
 2G3. 
 the certificate, 264. 
 order of discharge, 265. 
 discharge of bankrupt, provisions with regard to, 265 — 
 
 268. 
 fraudulent settlement, 268. 
 effect of order of discharge, 269. 
 property acquired after bankruptcy, 269. 
 rights of uncertificated bankrupt, 270. 
 disqualifications of bankrupt, 271. 
 removal of, 272. 
 
 vacating of seat in House of Commons, 272. 
 vacating of mimicipal and other ofiices, 272. 
 power for Court to annul adjudication in certain cases, 
 
 272. 
 exercise of jmisdiction under Act of 1883,, 273, 
 special judge to dispose of business, 273. 
 
 in chambers, 273. 
 matters to be heard in Court, 274. 
 registrars, jurisdiction of, 274, 275, 275, n. 
 appeals, 275. 
 
 time for, 277. 
 security for costs of, 277. 
 small bankruptcies, 277. 
 
 summary administration in small cases, 277. 
 debtors owing not more than 50/., 279. 
 power of County Court to make administration 
 order instead of order for payment by instalments, 
 279. 
 of joint stock companies, 349, 363. 
 of trustee, 464. 
 
 of trustee of friendly society, 366. 
 of joint contractor, 485, n. (J), 
 of a trading partnership, 492. 
 of joint debtor, 487.
 
 666 INDEX. 
 
 Banerupicy, clioses in action in bankrupt's possession, order and dis- 
 position, 85, G37. 
 does not detennine a submission to arbitration, 312. 
 Baknaed's Act, now repealed, 331. 
 Bastard, gift by will to, 545. 
 Benefice, charge by clergymen on, void, 140. 
 
 rigbt of nomination to, does not pass to trustee in bank- 
 ruptcy, 436. 
 sequestration of, in bankruptcy, 238, 288. 
 Bequest of stock in the funds, 338. 
 executory, 424. 
 
 general, operates as an exercise of a general power, 437. 
 to charities, 543. 
 to illegitimate children, 545. 
 to joint tenants, 547. 
 to tenants in common, 547. 
 to a class, 547. 
 Bills of exchange, 124, 164, 172, 190. 
 definition of, 125. 
 acceptance of, 125. 
 what, prohibited, 12G. 
 signature of drawee, 125. 
 under 20s., 126. 
 for less than bl., 121. 
 negotiation of, 128. 
 holder of, 129, 134. 
 indorsement in blank, 129, 130, n. 
 special indorsement, 129, 130, n. 
 payable to bearer, 130. 
 banker's protection, 130. 
 payment in due course, 130. 
 liability of di-awer and acceptor, 131. 
 
 of indorser, 131. 
 presentment for payment, 131. 
 notice of dishonour, 132. 
 protest of, 132. 
 consideration presumed, 133. 
 holder in due course, 134. 
 days of grace, 134. 
 payable on demand, 134. 
 summaiy procediire on, 134. 
 stamp duty, 135, n. 
 have no preference over other simple contract 
 
 debts, 164. 
 always carry interest, 167. 
 assignment of, 128, 172. 
 title to, 622.
 
 INDEX. 667 
 
 BniS of lading, 46, 95, 96. 
 
 Bills of Sale Acts, ISol— 82. .61, 65. 
 
 meaning of " bill of .sale," 66, 75. 
 registration of, 64, 71, 77. 
 renewal of registration of, 65, 72. 
 void, 65, 69, 70, 75, 76, 79. 
 validity of informal bill of sale, as between grantor and 
 
 grantee, 70, n. 
 provisions of the Act of 1882. .75. 
 seizure, 76, 77, n., 79. 
 form of bill of sale, 77, n. {d). 
 attestation, 78. 
 local registration, 78. 
 search of register, 80, 
 official search, 74, n. {p). 
 
 BoAED OF Teade, control of, over tmstees in bankruptcy, 243. 
 audit of trustee's accounts, 246. 
 
 Bona notabilia, 519. 
 
 BoxD, 160. 
 
 to induce cohabitation, void, 137. 
 
 for past cohabitation, good, 137. 
 
 single bond, 160. 
 
 with condition, 160. 
 
 interest of money secured by, 161. 
 
 stamp on, 162, n. 
 
 for performance of agreements, 162. 
 
 limitation of actions on, 163, 630. 
 
 voluntary, 163. 
 
 joint, 480, 482. 
 
 joint and several, 482, 489. 
 Bonus, 427. 
 bottombt, 303. 
 Beeaohes, assignment of, 162. 
 
 Beitisii possessions abroad, copyright in, 412. 
 sliips, 88, 89. 
 
 Beothees, right of, under Statute of Distributions, 558. 
 
 BuiLDiNQ societies, 369. 
 
 mortgages to, 369. 
 
 Building Societies Act, 1874 .. 370. 
 incorporation, 371. 
 
 real and personal estate vests in the society, -371. 
 purposes for which societies may be established, 371. 
 copyholds of building society, 372.
 
 G68 iKDEX. 
 
 Capias ad satisfaciendum, writ of, 151, 20G. 
 
 Casts, copyright in, 405. 
 
 Cketificate of sliip's registry, 90. 
 bankrupt's, 2G1. 
 
 of mortgage and sale of ships, Qi. 
 of shares or stock, 331, 357. 
 of payment of probate duty, 523. 
 
 Champerty, UO. 
 
 Chanceey, Court of, investments of, 328. 
 
 order of, restraining transfer, C36. 
 Division. — See High Cottet of Justice. 
 
 Chaeacteb, representations as to, 124. 
 
 Chaeities, bequest to, 543. 
 
 Chaetee party, 95, 95, n. 
 
 companies incorporated by, 341. 
 
 Chattels which descend to the heir, 10. 
 personal, 2, 65, 66, 477. 
 modes of alienation of, 44, 47. 
 after -acquired chattels, license to seize, 42. 
 
 contract to assign, 42. 
 of wife belong to her husband, 572. 
 real, 1. 
 vegetable, 20. 
 
 sale of, in market overt, 623. 
 chattels personal settled to go with land, 477. 
 
 CHEauE, 130. 
 
 crossed cheque, 131. 
 
 Childeen, appointments to, 440, 441. 
 younger, 441. 
 in ventre, 441. 
 vesting of portions of, 444. 
 vesting of interests given to, 445. 
 maintenance of, 446, 447, 448, 603. 
 covenant to settle property on, 471. 
 gifts to illegitimate, 545. 
 gifts to, 548. 
 
 shares of, under Statute of Distributions, 558. 
 custody of infant, 100, 613, 614, 620, 621. 
 order to settle property on, 619. 
 form of powers of appointment amongst, 449. 
 form of tmst for, 449. 
 trusts in default of childi'en, 650.
 
 INDEX. GG9 
 
 CnoSE in action, 4, 5, 6, 7, 97, 324, 483, 573, 574, 57G. 
 assignment of legal, 6, 171, 298. 
 assignment of equitable, 7, 171. 
 right of husband to wife's legal, 574. 
 right of husband to wife's equitable, 571, 576. 
 Statutes of Limitation as to, C29. 
 notice of assignment of, G, 037. 
 in possession, 4, 10, 483. 
 
 alienation of, 40, 44, 64, 81. 
 Court may order sale, 84. 
 title to, 623. 
 
 Statutes of Limitation as to, 628. 
 Civil law, subjection of the law of property to, 1. 
 
 age at which a will may be made by the, 506. 
 degrees of kindi-ed traced according to the, 559. 
 rules of the, as to restraint of marriage, 565. 
 service, jirobate of will in, 526. 
 Class, appointment amongst a, 440. 
 
 bequest to a, 5 J 7. 
 Clauses, Companies, Consolidation Acts, 341, 342. 
 Clergyman, insolvent, 288. 
 
 bankrupt, 238, 288. 
 action for dilapidations, 103, 104, 105. 
 waste by, 105. 
 Coat armour, 14. 
 Co-debtor, payment by, 490. 
 
 Cognovit, 149. 
 
 execution and attestation of, 151. 
 
 to be filed within twenty-one days, 153. 
 CoiiABiTATiON, bond to induce, void, 137. 
 bond for past, good, 137. 
 Colonial shipping, 88, n. 
 
 Colonies, patent for, 396. 
 
 copyright in, 403, 412. 
 Commission of bankruptcy, 210. 
 
 Committal, receiving order in lieu of, in bankruptcy, 156. 
 Committee of inspection in bankruptcy, 225, 231, 240—242. 
 
 of lunatic entitled to stock, 333. 
 Committeeman, liability of provisional, 504. 
 Common Law Procedure Acts, 1854 and 18G0.— Sec Statutes. 
 Companies Clauses Acts, 341, 342. 
 
 joint stock, 340.— See Joint Stock Companies. 
 Comparison of title to real and personal estate, 641.
 
 670 INDEX. 
 
 CoJTPENSATiON fop agricultural improvomeuts, 17. 
 Composition -with creditors, 178, 220, 223. 
 
 regulations as to, 188, 220—223. 
 power to accept composition after adjudication, 223. 
 difference between liquidation by arrangement and, IBS. 
 petition for liquidation, 191. 
 secured creditors, 191, 195. 
 
 terms of composition may be embodied in a deed, 192. 
 registration, 180, 192. 
 index, 193. 
 
 under the Bankruptcy Act, 1883 . . 194. 
 agreement to accept composition, 194, 220. 
 guarantee for payment of, 195. 
 secret agreement with creditor void, 195. 
 CosiPTEOLLEE of patents, trade marks, &c., 384. 
 Consent to change of investments, 454. 
 
 forfeiture on marriage without, 566. 
 CoNSiDEEATiON necessary to a contract, 112. 
 executed, 113. 
 illegal, 113. 
 valuable, 112, 114, 115, 436. 
 
 legacy for, 541. 
 good, 114, 115. 
 
 need not always be in writing to form a written con- 
 tract, 119. 
 why presumed to a note, 133. 
 Consols, 328. — See Stock in the Funds. 
 Contingent liabilities, estimate of, in bankruptcy, 253. 
 
 remainders, none in personal estate, 434. 
 Contract notes, 332. 
 CONTEACTS, 107, 159. 
 
 to assign after-acquired chattels, 42, ct in notd {g). 
 
 breach of. 111. 
 
 by deed, 135. 
 
 when writing required to, 47, 48, n., 49, 51, 118, 121, 
 
 124, 125, 126. 
 definition of. 111. 
 parol, 112. 
 special, 112. 
 
 valuable consideration necessary to, 112, 114, 115. 
 by infants, now void (except for necessaries), 117, 142. 
 with unlawful object, 136, 137. 
 where some objects lawful and others unlawful, 137, 
 
 137, n. (f) 
 with lawful object, 144. 
 by way of gaming, void, 141. 
 for restraint of trade, 138.
 
 INDEX. G71 
 
 CoNTEACTS, usurious, Ml. 
 
 by solicitors, 113. 
 
 of ciruuken man, voidable, 142. 
 
 by married womau, .587, 599. 
 
 husband's liability on wife's, COS. 
 
 for sale of goods, 17. 
 
 of joint stock company, 3-59. 
 
 bankruptcy of joint contractor, 485, n. (i). 
 
 CONTEIBTJTOEIES, 361. 
 CONTEESION, 30, 31. 
 
 of money into land, or land into money, 45.1, 5G9 n. (//). 
 Conveyance. — See ilLiENATiON. 
 CoNVEYANCEE, Certificated, has no general lien, 38. 
 
 Convicts, 59. 
 
 administration of convict's property, GO. 
 interim curator, 00. 
 Copyhold of friendly society, 367. 
 of building society, 372. 
 
 estates, limitation of actions for fines for, 633. 
 COPYEIGHT, 324, n., 398. 
 
 in encyclopaedias, re\'ie'ws, &c., 399. 
 
 in dramatic and musical compositions, 399. 
 
 Musical Compositions Act, 1882. .400. 
 
 printed notice of reservation of right of public perform - 
 
 ance, 400. 
 foreigner entitled to, 401. 
 register of proprietors, 401, 411. 
 assignment of, 402. 
 personal projoerty, 402. 
 foreign reprints of books, 402. 
 in prints, maps, &c., 403. 
 in sculptures, 405. 
 
 paintings, drawings, and photographs, 406. 
 international and colonial protection of designs, 412. 
 newspapers, 408. 
 newspaper articles, 409. 
 in designs, 409, 411. 
 duties and authorities of the Comptroller- General cf 
 
 Patents, 410. 
 Patents, Designs and Trade Marks Act, 1883. .410. 
 penalty on piracy of, 412. 
 COErOEATIONS, 340. 
 
 Costs of wi-it of mandamus, 98. 
 
 of trustees, 465. 
 
 security for costs in bankruptcy appeal, 277. 
 CO-SUEETIES, 169.
 
 672 INDEX. 
 
 County Courts, 147. 
 
 equitable jui'isdiction, extent of, 7, n. 
 admu-alty jiu'isdictiou, 95. 
 registry of judgments in, 157. 
 bankruptcy jurisdiction, 211. 
 winding-up in, 3G1. 
 trustee jurisdiction, 4G1, 168. 
 probate jurisdiction of, 521. 
 CotJiiT for Divorce and Matrimonial Causes, 615. 
 
 now the Probate, Divorce and Admiralty Division 
 
 of the High Coiu-t of Justice, 99, 616. 
 dissolution of marriage, 618, 619. 
 protection of wife deserted by husband, 617. 
 alimony, 616. 
 judicial separation, 616. 
 wife -A feme sole, 617. 
 custody, maintenance, &c. of children, 613, 614, 
 
 620, 621. 
 settlement on divorce or judicial separation, 619. 
 powers of Court on application for restitution of 
 conjugal rights, 620. 
 CouETS of record, 146, 147. 
 Covenant, 159. 
 
 limitation of actions on, 163. 
 voluntary covenants, 163. 
 
 for future settlement, void in bankruptcy, 262. 
 to insure against fire, 301. 
 
 for settlement of wife's future property, 469, 652. 
 to settle husband's property, 471. 
 joint, 482, 489. 
 joint and several, 482, 489. 
 not to sue one joint and several debtor, 490. 
 for title, 640. 
 Ceeditoes, gifts for defrauding, 61, 83, 472. 
 remedies of judgment, 153. 
 composition with, 158, 178, 183. 
 registration of resolution, 190, n. («). 
 assignment in trust for, 175, 179, 180. 
 petitioning on bankruiDtcy, 213, 214. 
 secured creditor, 191, 213, 217. 
 proof by secured, in bankruptcy, 192. 
 assignees of, in bankruptcy, 225. 
 interest of, in life of debtor, 295. 
 voluntary settlement void as against, 262, 268, 472. 
 trust for payment of, when revocable, 473. 
 may by custom take out administration, 552. 
 Statutes of Limitation not affected by death of, 633.
 
 INDEX. G7;j 
 
 Crops, 21, 69. 
 Ceosskd cheques, 131. 
 Ceown debts, 117, IGl, 530, n. 
 
 in bankruptcy, 249. 
 jewels, 14. 
 
 right of, to intestate's estates if no next of kin, 561, 
 patent rights reserved to, 383. 
 CuEATOE of convict's property, GO. 
 Customs of London and York, 605, 519, 560. 
 of Wales, 505, 560. 
 of trades, 628. 
 
 D. 
 
 Damages, actions which sound in, 107. 
 
 ascertained by Master, 107, 108. 
 liquidated, 108, 110. 
 limitation of actions for, 633. 
 Days of grace, 134. 
 
 Death, actions by executors in case of, 101, 103. 
 of creditor, effect of, 633. 
 of debtor, effect of, 633. 
 Debentuee stock, investments in, 453. 
 De 302ii3 Nox, administration, 557. 
 Debt, action of, 5, 107. 
 
 by husband for arrears of wife's rents, 575. 
 Debts, how assignable, 6, 172. 
 
 barred by banki'uptcy, 116. 
 
 barred by Statute of Limitations, revival of, 116, 632, 
 
 incui-red during infancy, 117, 124. 
 
 involuntary alienation for payment of, 81. 
 
 involuntary alienation of, 172. 
 
 of record, 146, 158. 
 
 crown, 147, 164, 249, 265, 530, n. 
 
 judgment, 148, 152, 153, 250, 337, 372, 530, n. 
 
 specialty, 148, 158, 163. 
 
 abolition of priority of specialty debts, 148, 153, 158, 159, 166, 
 
 282, 492. 
 simple contract, 148, 163, 164. 
 abolition of imprisonment for debt, 154. 
 the Debtors Act, 1869, provisions of, 154. 
 interest on, 167. 
 
 in bankruptcy, 257. 
 when taken in execution, 172. 
 attachment of debts, 173. 
 payment of, 176. 
 appropriation of paymeats, 177. 
 W.P.P. X X
 
 674 INDEX. 
 
 Debts, filing an affidavit of debt, 207. 
 admission of, 207. 
 proof of, in bauki-nptcy, 252. 
 description of debts provable, 253. 
 set-off of mutual, in bankruptcy, 254. 
 all debts in bankruptcy paid rateably, 249, 251. 
 priority of debts of joint stock company, 363. 
 joint and several, of bankrupt trading partnership, 492. 
 voluntary, when exempt from probate duty, 527. 
 payment of, by executor, 528. 
 power of executor to compound, 530. 
 satisfaction of, by legacies, 541. 
 payment of, by administrator, 553. 
 husband's liability to wife's, 572, COl, 603. 
 covenant to indemnify husband against wife's, 612. 
 limitation of actions for, 632. 
 charge of real estate for payment of, 634. 
 notice to debtor on assignment of, 6, 172, 637. 
 Debtor, notice to, on assigning the debt, 6, 172, 637. 
 
 administration of estate of deceased debtor in bankruptcy, 
 153, 159, 166, 282, 492, 529. 
 
 release of, 182. 
 
 unreasonable stipulations, 182. 
 
 bankriiptcy of. — See Bankeuptct. 
 
 insolvent.— See Insolvent Debtors. 
 
 Absconding Debtors Act, 1870 . . 154. 
 
 appointment of executor, 515. 
 
 effect of death of, 633. 
 
 joint, in bankruptcy, 487. 
 
 joint, beyond seas, 488. 
 
 and creditor, former defects in the law of, 164. 
 Debtors Act, 1869, provisions and exceptions, 154, 155. 
 
 1878.. 155. 
 Decree of a Court of Equity, 153. 
 Deed, title deeds pass by conveyance of the lands, 10. 
 
 tenant for life entitled to a possession of the deeds, 1 1 . 
 
 alienation by, 44. 
 
 contracts by, 135. 
 
 alteration or rasure of a, 135. 
 
 solicitor's lien on, 37. 
 
 boxes, 14. 
 
 of arrangement, 180, 181. 
 
 of composition, 192. 
 
 registration of, 192. 
 on assignment of patent, 394. 
 stamp duty on, 181. 
 Deer, 23.
 
 INDEX. 675 
 
 Defeazance to warrant of attorney, 149. 
 Deqeees of kindred, how traced, 559. 
 Delivery, alienation of personal chattels by, 44. 
 constructive, 45, 51. 
 order, 4G, 623. 
 Demonstrative legacy, 540. 
 Dejtizen may bo bankrupt, 199. 
 Deposit, forfeiture of, for breach of contract. 111. 
 
 on petition in bankruptcy, 216. 
 Descent, remarks on law of, 562. 
 
 to distant heirs and kindred, 563. 
 Designs of articles of manufacture, copyi-ight in, 409 — 412. 
 
 piracy of, 412. 
 
 international and colonial protection of, 412. 
 Detinue, action of, 3. 
 
 limitation of action of, 629. 
 Dilapidations, 102, 104, 105, 166. 
 Directors of joint stock companies, powers of, 503. 
 
 notice to, 503. 
 Disabilities, sa\'ings of, 629, 631. 
 
 Disclaimer of title or specification of invention, 389, 391. 
 Discovery of debtor's property, 226, 228. 
 DisnoNOUn of bill or note, notice of, 132. 
 Dissolution of marriage, 618 — 620. 
 Distant heirs and kindred, remarks on descent to, 563. 
 Distress for rent, 39. 
 
 in bankruptcy, 250, 255. 
 
 by husband for arrears of wife's rent, 575. 
 
 Distribution, Statutes of, 549, 557. 
 
 remarks on the law, 562. 
 
 Distringas, 639. 
 
 on stock, 334. 
 
 writ of disti-ingas abolished, 335. 
 
 affidavit and notice now to be served, 335. 
 
 Dividends, 330. 
 
 in bankruptcy, 246 — 249. 
 
 apportionment of, 431. 
 
 unclaimed, of stock in the funds, 035. 
 Divorce, 618—620. 
 Dock warrant, 46. 
 Domicile of testator, 509. 
 Donatio mortis causd, 511. 
 Dormant partner, liability of, 491, 495. 
 DowEE, legacy in lieu of, 541. 
 
 limitation of actions for arrears of, 631. 
 Dramatic pieces, copyright in, 399. 
 Drawee of a bill, 125. 
 
 X X 2
 
 676 INDEX. 
 
 Drawee of a bill, 125. 
 
 liability of, 131. 
 Deawings, copyrig-lit in, 406. 
 DuEANTE absentia, administrator, 555. 
 
 minore mtatc, administrator, 513, 554. 
 Dwellings Act, Laboui-crs', 1855.. 372. 
 
 E. 
 
 East India Stock, what is, 452. 
 
 government notes, 524. 
 Ecclesiastical benefice, sequestration of, 238, 288. 
 
 Dilapidations Act, 1871.. 104, 105, 166. 
 Education of children, provisions for, 446. 
 Ejectment by one executor, 515, n. 
 Election that lands should not be sold, 456. 
 Elegit, writ of, 81, 83. 
 Emblements, 20. 
 
 Encyclopedias, copyright in, 399. 
 Engravings, copyi-ight in, 403. 
 Equitable chose in action, 6, 574. 
 
 rights, 570. 
 Equity, decree of Coiu-t of, 153. 
 
 equity and law now administered in the same action, 145, 
 
 570, n. 
 control of equity, now abolished, 162. 
 life interest in, 425. 
 
 considers as done what is agreed to be done, 43, 456. 
 of wife to a settlement, 576. 
 Erasure, 135. 
 Escape, 204, 633. 
 
 Estates, none ia personal property, 8, 432. 
 Evidence before official referees, 311. 
 
 required on probate, 520. 
 Examiners of patents, &c., 384. 
 Exchequer bills, 450, 453. 
 Exclusive appointment, 438, 439. 
 Execution in case of bankruptcy, 260, 261. 
 
 sale of goods, how affected by, 82, 623. 
 Executor, actions by, for injury to estate of deceased, 101. 
 actions against, for wrong done by deceased, 103. 
 liability of, carrying on trade, 496. 
 appointment of, 512. 
 title of, 512. 
 assent of, 513. 
 of executor, 514.
 
 INDEX. 677 
 
 Executor, apiDointmcnt of debtor executor, 515. 
 
 survivorship of office of, 515. 
 
 renunciation by one, in the lifetime of another, 515. 
 
 rights of, cease on renunciation, 515. 
 
 or on death before probate, 516. 
 
 de son tort, 51G. 
 
 right of rctauier, 516. 
 
 acts of, before probate, 518. 
 
 power of, to accept composition for debt, &c., 530. 
 
 purchase from, 528. 
 
 application to the CoiU't, 530, 531, 533. 
 
 stay of proceedings against, 533, n. 
 
 accounts, 531. 
 
 his year, 535. 
 
 liability of, 534, 535. 
 
 his former right to the residue, 549. 
 
 now trustee for the next of kiu, 549. 
 ExECXTTOES, any one, may perform acts of administration, 514, 
 
 all must join in bringing actions, 514. 
 
 as to ejectment, 515, n. 
 
 administrators and assigns, use of the words as words of 
 limitation, 433. 
 
 of objects of a power cannot take under an appointment, 
 440. 
 
 protection to, 535. 
 
 not bound to plead the Statute of Limitations, 634. 
 Executory bequests, 424. 
 
 interests in personal estate, 436. 
 Executrix, married woman, 513, 602. 
 Exemptions from game licences, 26. 
 Exhibition of an invention, 379, 380. 
 Express trust, not barred by Statute of Limitations, 635. 
 
 Factors, 55, 626. 
 
 Farm buildings, 16. 
 
 Father has no insurable interest in life of son, for his OAvn benefit, 296. 
 
 appointments by, must not be for his own benefit, 442. 
 
 bound to maintain his children, 448. 
 
 right of, under Statute of Distributions, 558. 
 Felony, forfeiture on conviction of, now abolished, 60. 
 Feme covert, 571. — See Married Woman; Wife. 
 Fencing, 17. 
 FERiE natures, animals, 22.
 
 678 INDEX. 
 
 Fiat in bankruptcy, 210, 212. — Sco Bankruptcy. 
 FiEEi facias, writ of, 81, 82. 
 
 securities which can be taken under, 173. 
 limitation of action for money levied under, G33. 
 Fines for copyhold estates, limitations of actions for, G32, 
 FiEE insurance, 300, 301. 
 
 rebuilding, 301. 
 Fish, 23. 
 FlXTtTEES, 15, 19, Go. 
 
 trade, 15, G8, 69. 
 agricultural, 16, 17. 
 
 Agricultural Holdings (England) Acts, 1875 and 1883, 
 IG, 17. 
 removal of fixtures, 18. 
 when demised, 19. 
 FoEEiGN judgment, 153. 
 inventions, 381. 
 FoEEiGNEE entitled to copyright, 401. 
 
 FOEFEITUEE of gOOds, 59. 
 
 of deposit. 111. 
 
 for treason or felony abolished, 60. 
 on marriage without consent, 566. 
 France, convention with, as to copyright, 407. 
 Feaud on a power, 442. 
 
 Feauds, Statute of.— See Statute — 29 Car. II. c. 3. 
 Fraudulent debtors, 155. 
 
 conveyance, 201, and n. (^), 208, 268. 
 preference, 201, 263. 
 settlements, 268, 472. 
 Feeehold land societies, 370. 
 Freeholds, leaseholds settled to go with, 479. 
 Feeioht, 36. 
 
 right of mortgagee to, 96. 
 Feiendly societies, 365. 
 
 registry of, 365. 
 trustees, 366. 
 
 banki'iiptcy of trustee, 366. 
 new trustees, 366. 
 copyholds of, 367. 
 
 receipt for mortgage -money vests the estate, 367. 
 Amendment Act, 1876 . . 368. 
 
 conversion of registered society into a branch of 
 another registered society, 368. 
 Feuit, 20. 
 
 Funds, the. — See Stock in the Funds. 
 Funeeal expenses, payment of, 528, 529. 
 FuTUEE property, covenants to settle, 262, 469, 471, 652.
 
 INDEX. 679 
 
 G. 
 
 Game, 22, 24, 25. 
 
 licences, exemption from, 2G. 
 property in, 27. 
 Gaming, HI. 
 Gaenishee, 174. 
 
 garnishe'e order, 174. 
 execution against gamislice, 174. 
 garnishee's liability, trial of question of, 174. 
 discharge of garnishee, 175. 
 Gazette, notice of adjudication in bankruptcy, 213. 
 
 advertisement of receiving order, 217. 
 General lien, 35, 36. 
 ship, 95. 
 legacy, 540. 
 Gift and delivery, 44. 
 
 for defrauding creditors, 61, 83, 472. 
 of personal estate, 425, 426, 432. 
 to children, 545, 546. 
 to illegitimate children, 545. 
 lapse of, 547. 
 
 for " sole use" of wife, 585. 
 Goods, property in, 29, 30, 39. 
 
 constructive delivery of, 45. 
 sale of, 47, 48, 49, 55, 122, 623. 
 ■what is an acceptance of, 50. 
 forfeiture of, 59, 60. 
 mortgage of, 62. 
 gift of, for life, in law, 425. 
 
 in equity, 425, 426. 
 stolen, G23. 
 
 limitation of actions for, 628. 
 Goodwill, 420. 
 
 covenant by vendor not to carry on business within certain 
 distance, 422. 
 Goveenment securities, what are, 450. 
 Geace, days of, 134. 
 Grant of goods, 41. 
 Geotjnd game, 24. 
 
 occupier entitled to kiU, 25. 
 Gttaeantee of payment of composition, 195. 
 GuAEDiANS, effect of concurrence of, in settlements, 566, 
 
 H. 
 
 Half blood, claim in distribution equally with the whole, 559, 561. 
 pay, forfcitui-e of, by bauki-iipt, 239.
 
 680 INDEX. 
 
 Hawks, 23. 
 
 HEiE-looms, 13, 14, 178. 
 
 Heie, specialty debts iu which he is bound, 158. 
 
 Heies, word iuapplicablo to personal estate, 432. 
 
 remarks on descent to distant, 563. 
 High Couet of Justice, 99, 147. 
 
 Chancery Division, 99. 
 
 jm-isdiction of, 99, 318, 335, 361, 532, 615. 
 Probate, Divorce, and Admiralty Division, 99, 616. 
 admiralty jm-isdiction, 95. 
 Hike of goods, 34. 
 Holdee of a bill or note, 129, 134. 
 HoESES, sale of stolen, 625. 
 Hotchpot, clause of, in settlements, 439. 
 
 advancements to be brought into, on intestacy, 558. 
 form of clause of, in a settlement, 650. 
 Hounds, 23. 
 
 Husband, covenant to settle his property, 471. 
 no duty on legacy to, 536. 
 
 rights of husband and wife independent of settlement, 569. 
 ancient rights of, 570. 
 legal rights of, 570, and note, 
 right to wife's chattels personal, 572. 
 gifts by, to wife of jewels and trinkets, 573. 
 his right to wife's legal choses in action, 574. 
 
 equitable choses in action, 574, 576. 
 efPect of his assignment, 578. 
 his assignment of his -wife's reversionary choses in action, 
 
 579. 
 release of, 580. 
 
 liabilities at common law, 581. 
 
 liabilities of, for wife's ante-nuptial contracts and debts, 
 581, 582, 592—594, 603—605. 
 for wife's torts, 581, 582, 593, 603—605. 
 fraud on his marital rights, 582. 
 authority of, to wife, to dispose of personal estate by will, 
 
 583. 
 wife's liability to maintain, 603. 
 questions of property between husband and wife, 605, 
 
 606. 
 fraudulent investments with money of husband, 605. 
 criminal proceedings by, against wife, 606. 
 his liability on his wife's contracts, 608. 
 when husband and wife are living apart, 610. 
 separation of husband and wife, 612. 
 covenant to indemnify, against wife's debts, 612. 
 his right to the custody of infant children, 613. .
 
 INDEX. 081 
 
 Husband, restitution of conjugal rights, 620. 
 settlement on husband for life, 649. 
 trust as to fund settled by husband, 651. 
 See also "Wife. 
 
 Idiot, 58. 
 
 transfer of stock of, 332. 
 Illegality of contracts, 114, 13G, 137. 
 Illegitimate children, gift to, 545. 
 Illusoey appointments, 438. 
 Immoral publication, 138. 
 
 iMroETATiiSis of foreign reprints of English books, 402. 
 Imteisonment of debtor in execution, 154. 
 
 abolition of imprisonment for debt, 154, 293. 
 the Debtors Act, 1869, provisions of, 155. 
 proof of means of payment, 155. 
 order for payment by instalments, 156. 
 discharge of insolvent from, 289, 292. 
 saving of disability of, 629. 
 Improvement of Land Act, 1864 . .450. 
 Income, apportionment of, 428. 
 Incoepoeation of joint stock companies, 341, 347, 356. 
 
 of building society, 371. 
 Incoepoeeal personal property, 324. 
 
 classification of personal property as corporeal or incor- 
 poreal, 324, n., 394, n. 
 anciently none, 4. 
 Inctjmbent, liability of, for dilapidations, 104, 105. 
 Indemnity of trustees, 467. 
 Index of compositions, 193. 
 Indian government notes, 524. 
 
 what is East India Stock, 452. 
 Indoesement of sale of ship on certificate of registry, 90. 
 of bills and notes, 129, 130, n., 131.' 
 special, 129. 
 in blank, 129. 
 Indtjsteial and provident societies, 368. 
 Infancy, confirmation of debt incurred in, 117, 124. 
 
 saving of disability of, 630. 
 Infant, 57, 58. 
 
 contracts by, now (except for necessaries) void, 117, 142. 
 cannot be a bankrupt, 200. 
 stock of, 332. 
 executor, 513. 
 legacy to, 537.
 
 682 INDEX. 
 
 Infant, marriage settlements of, 567. 
 
 custody of, 100, G13, 614. 
 Infeeiou courts of record, 147. 
 
 judgments of, 157. 
 Injunction, writ of, 97. 
 
 now to be by judgment or order, 98, n. {d). 
 no cause to bo restrained by, 532. 
 Injury, actions by executors in respect of, 101. 
 
 actions against executors in respect of, 103. 
 Insolyency, 286—293. 
 
 declaration of, 204. 
 in the colonies, 205. 
 Insolvent debtors. Court for relief of, now abolished, 292. 
 
 estates of persons dying insolvent may be administered in 
 
 banki'uptcy, 153, 159, 166, 282. 
 schedule of, 289. 
 
 discharge of, 187, 286, 289, 290, 292. 
 vesting order, 287. 
 
 warrant of attorney formerly executed by, 290. 
 insolvent estates now administered under the rules of 
 bankruptcy, 292. 
 Inspectoeship, deed of , 178. 
 
 committee of inspection, 225, 231, 240 — 242. 
 Instalments, payment by, 156. 
 Insurance, 294. 
 
 of life, 294. 
 
 savings bank insurance, 369. 
 interest of creditor, 295. 
 of trustee, 296. 
 stamp duties on, 296, n., 475. 
 assignees of life policies may sue in their own names, 
 
 297. 
 by married woman for separate iise, 298. 
 by married man for wife and children, 298. 
 monies payable under policy of assurance not to form part 
 
 of estate of the insured, 299. 
 fire, 300. 
 rebuilding, 301. 
 of ships, 302. 
 
 assignee may sue in his own name, 302. 
 companies, 346. 
 Inteeest, legal rate of, 141. 
 
 on bills and notes, 141, 167. 
 
 on judgment debt, 152. 
 
 on bond, 161. 
 
 on debts, 167. 
 
 appropriation of payments towards, 177.
 
 INDEX, 683 
 
 Interest on debts proved in bankruptcy, 257. 
 always apportioned, 430. 
 on legacies, 534. 
 
 limitation of actions for arrears of, 631. 
 Inteenatioxal copyi'ight, 406. 
 Intestacy, 550 — 564. 
 
 poor intestates, 553. 
 Invention. — See Patent. 
 Inventor of patent, 381. 
 
 legal personal rcprcsentativo of, 382. 
 Investment of settled funds, 450, 452, 453, 454, 455. 
 
 in joint names of married woman and others, 598. 
 fraudulent investments with money of husband, 005. 
 form of trust for, 648, 649. 
 consent to change, 454. 
 
 power to invest trust-money in purchase of land to be 
 held on trust for sale, 653. 
 Ireland, real securities in, 451. 
 Irish patent, 393. 
 Issue, appointment to, 441. 
 trusts for, 649. 
 
 J. 
 
 Joint bequest, no lapse by decease of one legatee, 547. 
 bond, all must sue, 480. 
 
 release by one obligee bars all, 480. 
 form of, 489. 
 and several bond, 488. 
 
 form of, 489. 
 covenant, 482. 
 
 foi-m of, 489. 
 and several covenant, 482. 
 and several debts in bankruptcy, 493. 
 creditor, banki'uptcy of, 485. 
 debtors, 487, 488. 
 UabiHty, 487, 490. 
 and several liability, 488. 
 
 of partners, 492. 
 owners, 480. 
 
 trustees made, 481. 
 
 shares of, under a will, need not vest at the same 
 
 time, 481. 
 limitation to them, theii- executors, administrators and 
 assigns, 481, 482. 
 ownership not favoured in equity, 484.
 
 084 INDEX. 
 
 Joint stock companies, 340. 
 
 incorporated by charter or Act, 340. 
 
 Companies Clauses Acts, 341, 342. 
 
 inconvenience of unincorporated, 344. 
 
 Registration Act, 345. 
 
 banking, 345, 348. 
 
 sale of shares in banking companies, 365. 
 
 letters patent, 344. 
 
 registry office, 346. 
 
 registered office of, 357. 
 
 liability of shareholders in, 344, 348, 362, 504. 
 
 transfer of shares, 347. 
 
 bankruptcy of, 349. 
 
 with limited liability, 350, 352. 
 
 shares in, not goods, wares or merchandise, 
 365. 
 
 settlement of shares, 427. 
 
 powers of directors of, 503. 
 
 liability of provisional committeemen of pro- 
 jected, 504. 
 
 provisional registration, 340. 
 
 complete registration, 346. 
 
 incorporation, 347, 356. 
 
 Acts, objects of, 348. 
 
 Winding-up Acts, 349, 361, 361, n. (l). 
 
 winding-up of "unregistered companies," 349. 
 
 rules of bankruptcy to be observed, 303. 
 
 priority of debts, 363. 
 
 Acts, 1862, 1867 and 1879.. 351. 
 
 Arrangement Act, 1870.. 361. 
 
 liability may be limited, 352. 
 
 company may have directors with unlimited 
 liability, 353. 
 
 memorandum of association, 353, 354. 
 
 no alteration to be made, 354. 
 exceptions, 355. 
 
 name may be changed, 355. 
 
 power to reduce capital, 355. 
 
 subdivision of shares, 355. 
 
 Companies Act, 1877.. 355. 
 
 articles of association, 355. 
 
 memorandum and articles to be registered, 356. 
 
 shares personal estate, 356. 
 
 register of members, 356. 
 
 name of limited company to be painted up, 
 357. 
 
 judgment debts, 372.
 
 INDEX. (JSo 
 
 Joint stock companies, certificates of shares or stock, 357. 
 register evidence, 357. 
 certified copies evidence, 357. 
 register of mortgages, 358. 
 associations not for profit, registration of, 358. 
 special resolution, 358. 
 contracts, how made, 359. 
 transfer of shares, 360. 
 share waxTants, 360. 
 liquidators, 361. 
 contributories, 3G1. 
 Companies Seals Act, 1861 . . 364. 
 colonial registers, 364. 
 Mortgage Debenture Act, 1865 . . 364. 
 Life Assui-ance Companies Acts, 1870 and 
 
 1872.. 364. 
 sale of shares not within Statute of Frauds, 
 365. 
 Judge's order, 149. 
 
 to be filed within twenty-one days, 152. 
 Judgment, eifect of, on goods, 64. 
 debtor summons, 206. 
 on warrant of attorney or cognovit, 149. 
 in case of bankruptcy, 205. 
 debt, a debt of record, 148. 
 preference of, avoided by administration in bankruptcy, 
 
 153, 249. 
 carries interest, 152. 
 
 formerly entitled to preference in administration, 152, 
 530, n. 
 preference now abolished, 153, 529. 
 but must be registered, 152. 
 foreign, 153. 
 
 creditors, remedies of, 153. 
 Scotch and Irish judgments, 157. 
 removal of judgments of inferior Courts, 157. 
 registry of, in County Courts, 157. 
 charge of, on stock, 337. 
 
 on shares, 373. 
 limitation of actions for money secured by, 629. 
 Judicial separation of husband and wife, 616. 
 settlement on, 619. 
 
 K. 
 Kin, next of, their right to administration, 559. 
 KiNDEED, degrees of, how traced, 559. 
 
 remarks on descent to distant, 563.
 
 686 INDEX. 
 
 Laboueees' Dwellings Act, 1855. .372. 
 Lands, sale of, 47, 476. 
 
 money settled as, 476, 569, n., C53. 
 proceeds of sale of settled, 476. 
 chattels personal settled to go with, 477. 
 warranty on sale of, 626. 
 
 application of rents and profits of purchased, 654, 
 power to lease purchased, 654. 
 Lapse of legacy, 547. 
 
 Law aot) Eguitt administered in the same action, 145. 
 Leasehold property, succession duty on, 538. 
 Leaseholds settled to go with freeholds, 479. 
 Legacies, no action at law for pecuniary, 6. 
 payment of, 534. 
 interest on, 534. 
 legacy by parent, 534. 
 duty on, 476, 536. 
 
 no duty on, to husband, wife, or royal family, 537, 538. 
 discharge of executor from claim to duty on distribution of 
 
 fimd, 539. 
 to infants, 537, 538. 
 to person beyond seas, 538. 
 duty on annuities, 538. 
 specific, 539. 
 ademption of, 539. 
 demonstrative, 540. 
 general, 540. 
 
 for valuable consideration, 541. 
 in lieu of dower, 541. 
 satisfaction of debts by, 541. 
 satisfaction of portions by, 542. 
 to charities, 543. 
 to illegitimate children, 545. 
 lapse of, 547. 
 to children, 537, 548. 
 limitations of suits for, 629. 
 Legal rights, 570, n. 
 Legatee, rights of residuary, 547. 
 Lettees Patent, 352, 373, 374, 485, 643.— See also Patent. 
 
 form of, 643. 
 LEVAEi/«ci(rs, writ of, 83. 
 Ltabtt.tty, limitation of, by letters patent, 352. 
 in joint stock company, 352, 353. 
 joint, 487, 490.
 
 ixnEX. 687 
 
 Liability, discharge by Bankruptcy Act, 487. 
 
 Statute of Limitations, 487. 
 joint and several, 488. 
 of partners in trade, 490, 495. 
 of executor carrying on trade, 496. 
 of executor for debts, 534, 535. 
 Licence, letter of, 178. 
 
 to use patent, 392. 
 compulsory, 392. 
 Lien, 35, 36, 175. 
 
 how lost, 38, 53. 
 of innkeepers, 35. 
 of solicitors, 37, 38. 
 of vendor, 53, 55. 
 
 on property from covenant to settle, 471. 
 Life insurance, 294. 
 
 policies, assignment of, 171, 297, 639. 
 
 Assurance Companies Acts, 1870. .364. 
 
 assignees may sue in their own names, 297. 
 
 defence or reply on equitable grounds may be pleaded, 297. 
 
 notice of assignment, 172, 297, 298. 
 
 insurance, acknowledgment of notice of assignment of policy of, 
 
 298. 
 principal places of business to be specified on policy, 297. 
 of married women, 298. 
 by married man for wife and childi'en, 298. 
 moneys payable under policy not to form part of estate of in- 
 
 siu-ed, 299. 
 savings bank insurance, 369. 
 no estate for, in personal property at law, 423. 
 bequest of term for, 424. 
 interests in equity in personalty, 425, 432. 
 right of tenant for, as to bonus, 427. 
 apportionment of income of tenant for, 428. 
 Limitation to joint owners, 481. 
 Limitations, Statute of, 103, 116, 123, 163, 487, 628. 
 
 limitation of time for disclaimer of onerous 
 
 property by trustee in banki-uptcy, 235. 
 as to choses in action, 629. 
 executors or administrators not bound to 
 
 plead, 634. 
 operation of, barred by charge of real estate, 
 
 635. 
 operation of, not barred by charge of per- 
 sonal estate, 635. 
 express trust not barred by, 635. 
 Limited Liability Act, 1855. .350.
 
 088 INDEX. 
 
 Liquidated damages, 108, 109. 
 
 Liquidation by arrangement, regulations as to, 183, 194. 
 
 difference between liquidation by arrangement and com- 
 position, 188. 
 
 petition for liquidation, 191. 
 
 secured creditors, 191. 
 
 power of trustee under, 186. 
 LiQUiDATOES of joiut stock company, 361. 
 LiTHOGEAPH, copyright in, 406. 
 Loan societies, 368. 
 Loans by wife to husband, 605. 
 London, custom of, 505, 560. 
 LoEDS, House of, a superior court of record, 147. 
 
 bankrupt peers, 292, n. («;). 
 Lost article, 30, 32. 
 Lunatic, 58. 
 
 transfer of stock of, 332. 
 
 M. 
 
 Machinery, trade, 65. 
 Maintenance, crime of, 4, 140. 
 
 of children, provisions for, 446, 447, 448, 449. 
 Makee of promissory note, 125. 
 M.aul Jides on receipt of negotiable securities, 622. 
 prohibita, 136. 
 in se, 136, 137, 138. 
 Mandamus, writ of, 97. 
 
 now to be by judgment or order, 98, n. {d). 
 Manufactueed goods, proiierty in, 49, 50. 
 
 contract to furnish, 628. 
 Manufactures, patent for new, 378. 
 
 copyright in designs for articles of manufactui'e, 409. 
 Maps, copyright in, 403. 
 Marine Insurance, 302. 
 
 policies, assignment of, 171, 302. 
 assignee may sue in his own name, 302. 
 Maeines, wills of, and administration to, 508, 526, 556. 
 Maeitad rights, fraud on husband's, 582. 
 Market overt, sale of chattels in, 623. 
 
 sale of stolen goods, 623. 
 Marks, trade, 412. 
 
 register of, 415, 416. 
 of what trade mark must consist, 417. 
 warranty as to, 628. 
 Marriage, a valuable consideration, 114. 
 restraints on, 565.
 
 INDEX. 689 
 
 Mareiaoe, consent to, 5GG. 
 brocage, 566. 
 
 agreement on, must be in writing, 118. 
 settlement on, 471, 567. 
 personal and real settlement, 509, n. 
 dissolution of, 618. 
 form of a settlement on, 646. 
 Married "Women's Tropei-ty Act, 1870, .298, 449, 572. 
 
 provisions of, 588 — 592. 
 liabilities of husbands under the 
 Acts 1870 and 1874.592—594. 
 Tropcrty Act, 1882,. 569, 594. 
 Mabeied woman, 57, 58, 59, 558, 570 — 621. 
 powers given to, 437, 588. 
 
 to be capable of holding property as a, feme sole, 595. 
 saving of existing settlements, 596. 
 her interests in deposits in banks, annuities, stocks 
 
 and sliai-es, 597. 
 investments in joint names of married women and 
 
 others, 598. 
 husband need not join in transfer, 599. 
 contracts by, actions by and against, and liabilities 
 
 of, 587, 599. 
 remedies of, for protection of separate property, 600. 
 ante-nuptial debts and liabilities, 601, 604. 
 executrix or trustee, 513, 602. 
 legal representative of, 602. 
 execution of general power by will, 603. 
 liability to maintain husband, children, &c., 449, 603. 
 life assurance of married woman, 298. 
 when she may be bankrupt, 199, 200, n. {d). 
 voluntary settlement by, void as against creditors, 473. 
 saving of disability of, 629. 
 See also Husba>'d ; Wife. 
 Matruioxial causes. Court for, 99, 615. 
 Memorandxjm in writing, what is, 52, 122, 123. 
 Minor, wiU of, now invalid, 506. See Children ; Infant. 
 Models, copyright in, 405. 
 Money, settled as land, 476, 569, n. 
 title to, 622. 
 
 limitation of action for money secured by bond, 630. 
 Monopolies, Statute of, 374, 379. 
 Mortgage of goods, 62. 
 
 in the event of banki-uptcy, liable to be sold for benefit of 
 
 creditors, 62. 
 of ships, 92. 
 
 exempt from stamp duty, 94. 
 W.P.]\ Y Y
 
 690 INDEX. 
 
 MoETOAGE of sbips, Certificate of, 94. 
 
 right of mortgagee to freight, 9G. 
 
 of property of bankrupt, 211. 
 
 of leaseholds, deduction of amount of debt from probate 
 value, 527. 
 
 limitation of action for money secured by, G29. 
 McETiS causa, donatio, 511. 
 Mortmain, Statute of, 542. 
 
 Mother, right of, under Statute of Distributions, 558. 
 Municipal offices, vacating of, by bankrupt, 272. 
 Musical compositions, copyright in, 400. 
 
 N. 
 
 National Debt Act, 1870. .329. 
 
 Naturalization Act, 1870, provisions of, 57, 89. 
 
 Navy, wills and administration to seamen in the, 507, 508, 526, 656. 
 
 Necessaries, husband bound to supply his wife with, 582, 610, 611. 
 
 Negotiable seciirities, title to, G22. 
 
 See Bills oe Exchange ; Proiiissoet Notes. 
 Nephews, appointment to, 440. 
 Newspapers, copyright in, 408. 
 
 newspaper articles, 409. 
 New trustees, appointment of, 458, 460. 
 
 statutory powers to appoint, 458, 465. 
 
 appointment of, discretionary, 460. 
 
 vesting trust property in new or continuing trustee, 
 
 461. 
 appointment of, by the Court, 463. 
 vesting order, 463. 
 
 nomination of persons to appoint, 655. 
 of friendly society, 366. 
 Next op kin, right of, to administration, 559. 
 
 their interest vests from the decease of the intestate, 
 
 554. 
 how traced, 559. 
 Note of a contract, what is, 51, 122. 
 Notes, promissory, 124, 126, 164, 172. 
 
 definition of a note, 126? 
 note under 20s., 126. 
 for less than 51., 127. 
 
 payable to bearer on demand, 127. 
 negotiation of, 128. 
 holder of, 129. 
 indorsement in blank, 129. 
 special indorsement, 129.
 
 INDEX. 691 
 
 Notes, promissory, payable to bearer, 130. 
 
 liability of acceptor, 131, 
 of drawer, 131. 
 of indorser, 131. 
 presentment for payment, 131. 
 notice of dishonour, 132. 
 protest, 132. 
 
 bondfulc holder may enforce payment, 133. 
 consideration presumed, 133. 
 holder in due course, 131. 
 days of grace, 134. 
 payable on demand, 134. 
 summary procedure on, 134. 
 stamps on, 135, n. 
 
 not preferred in administration, 164. 
 carry interest, 167. 
 Indian government notes, 524. 
 title to, 022. 
 Notice to debtor on assigning the debt, 0, 172, 637. 
 
 of assignment of life policies, 172, 297, 298, 639. 
 to one partner notice to all, 502. 
 to trustees on assigning stock, 637. 
 NUNCXTPATIVE will, 506. 
 
 who may now make, 506 — 508. 
 
 O. 
 
 Objects of a contract, lawful or imlawful, 136, 137. 
 Offer, acceptance of, 122. 
 Officer, bankrupt, 288. 
 
 probate of will of, 525. 
 Official assignees, 85, 225. 
 Official receiver, in bankruptcy, 217. 
 
 Official referees of the Supreme Court of Judicature, 306, Ix, Ixi. 
 special referees, 306. 
 evidence before, 311. 
 authority and power of, 311. 
 referee may submit questions or state facts for 
 Coiu't, 317. 
 Order and disposition, goods in, of bankrupt, 85, 86. 
 
 choses in action in, of bankrupt, 038. 
 OXTTLAWEY, 59, 60, 203. 
 
 Ownership, personal property the subject of absolute, 8, 423. 
 in common, 184. 
 
 Y y2
 
 692 INDEX. 
 
 p. 
 
 Paintings, copyright in, 406. 
 
 Palatine Coui-ts, superior Courts of record, 146. 
 
 Paeapheenalia, 573. 
 
 Paeliament, the Supreme Court, 146. 
 
 privilege of, does not prevent adjudication in bankruptcy, 
 
 200, 292, n. (w). 
 vacation of seat by bankrupt, 272. 
 Paeol contracts, 112. 
 Paeticuiae lien, 35. 
 Paetnees, liability of, 490 — 502. 
 
 every partner liable for debts of firm, 495. 
 banki-uptcy of, 492, 501. 
 dormant, 491, 495. 
 ostensible, 495. 
 retiring, 496. 
 deceased, 491, 496. 
 participation in profits, 497 — 500. 
 Partnership Amendment Act, 1865 . . 500. 
 liability for each other's acts, 501. 
 notice to one notice to all, 502. 
 
 transactions not in the ordinary course of business, 502. 
 Paet owners of ships, 89. 
 Patent, 324, n., 373, 374. 
 invention, 375. 
 stamps on, 377, n. 
 term of, 376, 377. 
 for new manufactures only, 378. 
 no patent for a principle, 379. 
 combination, 379. 
 publication, 379. 
 exliibition of an invention, 379. 
 first inventor of, 381. 
 fraudulent application, 389. 
 foreign inventions, 381. 
 
 legal personal representative of an inventor, 382. 
 grant of, 383. 
 opposition to grant, 387. 
 rights reserved to Crown, 383. 
 application for, 384, 385. 
 patent office, 384, 385. 
 comptroller, 384, 385. 
 examiners, 384, 385. 
 law officer, 385. 
 specification of, 384, 389. 
 complete specificaticm left after provisional one, 386. »
 
 INDEX. 693 
 
 Patent, acceptance of complete specificatiou, 387. 
 effect of, 389. 
 
 amendment of Bpocification, 390. 
 
 damages after amendment, 391. 
 
 provisional protection, 388. 
 
 disclaimer, 389, 391. 
 
 vesting of, in more than twelve persons, 391. 
 
 licence to use, 392. 
 
 compulsory licences, 392. 
 
 Scotch and Irish, 393. 
 
 assignment of, 394. 
 
 as to the necessity of a deed, 394, and n. («). 
 
 register of patents, 395. 
 
 registered proprietor, 39o. 
 
 improvements in instruments or munitions of war, 39G, 
 
 international protection of inventions, 396. 
 
 colonies and India, 396. 
 
 infringement of, 397. 
 
 damages — account of profits, 397. 
 
 revocation of patent, 397. 
 
 tenants in common of, 485. 
 
 form of letters-patent, 643. 
 Patents, Comptroller-General of, 410. 
 Pawn, 34, 34, n. (a), 62. 
 
 goods unlawfully pawned, title to, 625. 
 Payee, 125. 
 
 Payment by instalments, 156. 
 Payment of debts, 176. 
 
 appropriation of payments, 177. 
 
 by executor, 528. 
 
 charge of real estate for, 634. 
 
 of interest, 177. 
 Peeks, bankrupt, 292, n. (?»). 
 Penalties, limitation of actions for, 633. 
 Penalty, 109, 154. 
 Pendente lite, administrator, 555. 
 Pension, forfeiture of, by bankrupt, 239. 
 Periodical works, copyright in, 399. 
 Peepettjities, 435. 
 
 in exercise of powers, 443. 
 Personal annuity, 325. 
 Personal property, the subject of absolute ownershiji, 8, 423. 
 
 classification of, as coi-poreal or incorporeal, 324, n. 
 copyright is personal property, 402. 
 succession duty, 536.
 
 694 INDEX. 
 
 Petition in bankruptcy, 209. 
 
 petitioning creditor, 213, 214. 
 debtor's, 215, 216. 
 deposit on, 216. 
 PnoTOGEAPHS, copyright in, 406. 
 Pious uses, 550. 
 Plans, copyright in, 404. 
 Pledge of goods, 34, et in notd («), 62. 
 
 by factor or agent, 626. 
 Policy of insurance, 171, 294. 
 
 assignment of, 171, 297, 639. 
 PoOE intestates, 653. 
 Portions, appointment of, 437. 
 
 Testing of, charged on land, 445. 
 satisfaction of, by legacies, 542. 
 Possession, apparent, 67. 
 
 choses in, 4. — See also Choses in POSSESSION, 
 goods in, of bankrupt, 85, 86, 233. 
 POSSIBILITT, 424. 
 
 now alienable, 424. 
 PosT-OFFiCE savings banks, 368. 
 Po WEE of attorney, 171. 
 
 construed strictly, 626. 
 revocation of, 626, n. 
 POWEES, 436. 
 
 over personal property, 437. 
 of appointment, 525. 
 
 of appointment amongst children, 437, 440, 441. 
 trustee of bankrupt may exercise, 233, 437. 
 frauds on, 442. 
 
 perpetuity in exercise of, 443. 
 to appoint nevs^ trustees, 458. 
 given to married vromen, 588. 
 
 execution by married woman of general power by wUl, 603. 
 form of, of appointment amongst children or other issue, 649. 
 special powers to trustees, form of, 655. 
 Peimogenititee, remarks on, 562. 
 Peints, copyright in, 403. 
 Peioeitt of specialty debts, 148, 158, 159, 166. 
 
 of judgment debts avoided by administration in banki-uptcy, 
 153, 159. 
 Peitilege of parliament does not prevent adjudication in banki-uptcy, 
 200, 292, n. (w). 
 vacation of seat by bankrupt, 272. 
 Peobate, Court of, 414, 517, 552. 
 
 now the Probate, Divorce, and Admiralty Division of the 
 High Court of Justice, 99, 616.
 
 INDEX. 695 
 
 Peobate, of wills, 517. 
 
 acts of executor before, 518. 
 
 in what Court to be taken out, 518. 
 
 in principal registry, 519. 
 
 in district registry, 519. 
 
 evidence required on, 520. 
 
 in common form, 520. 
 
 per testes, 520. 
 
 coimty courts, 521. 
 
 stamp duties on, 521, 525. 
 
 when exempt from stamp duties, 525, 526. 
 
 civil service and military allowances, 52G. 
 
 of seamen's wills, 526, 556. 
 
 mortgage debt, deduction of amount of, from probate value, 
 
 527. 
 duty attaches to estate of deceased legatee, 518, n. {c). 
 Peoctoes, all, are now solicitors, 144. 
 Peofits of partnership, participation in, 497 — 500. 
 Peomise, implied, HI. 
 
 insufficient of itself to form a contract, 114, 115, 116, 117. 
 PEOinssoEY notes, 124, 126, 1G4, 172. 
 stamp duty, 135, n. 
 not preferred in administration, 164. 
 carry interest, 167. 
 title to, 622. 
 PeoOF of debts in bankruptcy, 252. 
 
 description of debts provable, 253. 
 rules as to proof, 255, 257. 
 Peopeety, real and personal, 1, 7. 
 in British ships, 89. 
 in goods, 29, 30, 39. 
 requisite to a grant, 41. 
 Peotection order, 617. 
 Peotest, 132. 
 
 Peovisional committee-man, liability of, 504. 
 Public officer of banking company, 344, 345. 
 Publication, immoral, 138. 
 
 PuEcnASE of land, investment of settled funds in, 455. 
 PuECHASEE from executor not bound to see to the application of his 
 purchase-money, 529. 
 protection of, in bankruptcy, 263. 
 
 Q. 
 
 Queen's Bench Division, 99. 
 
 office of, amalgamated with central office of the Supreme 
 Court of Judicatm-e, 152.
 
 696 INDEX. 
 
 R. 
 
 E.ASUEE of deeds, 135. 
 
 Eates and taxes due from bankrupt, 250. 
 
 Real estate, charge of, for payment of debts, G31. 
 
 Real secixrities, what are, 450. 
 
 in Ireland, 451. 
 Receipt by survivmg joint owner, when good, 484. 
 by one executor a good discharge, 514. 
 by executor on sale a good discharge, 529. 
 of trustees, 456, 457, 655, n. 
 Receivee, interim, in bankruptcy, 217. 
 
 official, in bankruptcy, 217. 
 Receiving order in bankruptcy, 156, 210, 212, 216. 
 advertisement of , 217. 
 proceedings after order, 217. 
 Recognizance, 157. 
 
 limitation of actions on, 630. 
 Recced, debts of, 146, 15S. 
 courts of, 146. 
 
 of proceedings in bankruptcy, 213, 217. 
 Refeeees. — See Official Refeeees. 
 Reference to arbitration, 304, 305, Ix, Ixi. 
 
 revocation of, 309. 
 Registeae in banla-uptcy, 274, 275, 275, n. 
 
 Regisxbation of bill of sale, 63, 64, 65, 69, 71, 72, 73, 74, 77, 78. 
 of ships, 88. 
 
 certificate of, 90. 
 of transfers of ships, 91. 
 of judgment debts, 152. 
 of judgments in county courts, 157. 
 of deeds of arrangement, 179, 180, 190, n. (s), 192. 
 of joint stock companies, 345, 346, 356, 357. 
 of banking companies, 351. 
 of friendly societies, 365. 
 of patents, 395. 
 of coijyrights, 401. 
 of sculptui-es, 405. 
 of designs, 411. 
 of trade marks, 415, 416. 
 in Court of Probate, 519. 
 Reimbursement of trustees, 467. 
 Release by one joint obligee bars all, 480. 
 
 of one joint debtor discharges all, 487. 
 
 of one joint and several debtor, 490. 
 
 by husband of wife's reversionary chose in action, 580. 
 
 of money charged on real estate, 580.
 
 TNDEX. 697 
 
 Rent, arrears of , 158, 631. 
 distress for, 39. 
 
 in banki'uptcy, 250, 255. 
 proof in case of rent, 255, 257. 
 limitation of actions for, G30, Lxiii. 
 Renunciation of office of executor, 515. 
 Replevin, action of, 3. 
 
 limitation of action of, 629. 
 Reputed ownership, G3, 85 — 87. 
 
 of chose in action, 637. 
 Residuary bequests, duties on, 536. 
 
 legatee, rights of, 547. 
 Residue, former right of executors to, 549. 
 right of next of kin to, 549. 
 form of assignment of a share in, 647. 
 Respondentia, 303. 
 Restitution of conjugal rights, 620. 
 Resteaint of trade, contract in, 138. 
 on accimiulation, 435. 
 on marriage, 565. 
 on anticipation, 585, 587, 596, 653. 
 Retainee by executor of his own debt, 516. 
 
 by administrator of his own debt, 554. 
 Reveesionaey chose in action of wife, assignment of, 579. 
 Reatiews, copyi-ight in, 399. 
 Revocation of submission to arbitration, 309. 
 of patent, 397. 
 
 of the trusts of a settlement, 474. 
 of a will, 509. 
 Royal family, no duty on legacies to, 548. 
 Rule in Shelley^s case, 433. 
 
 S. 
 Sale of goods, 47, 48, 49, 55, 122. 
 of goods in market overt, 623. 
 of goods by factor or agent, 626. 
 of lands, dii'ection for, converts them into money in equity, 476. 
 
 ■warranty on sale of, 626 — 628. 
 of ships, certificate of, 94. 
 Salvage, 36. 
 Satisfaction of debts by legacies, 541. 
 
 of portions by legacies, 542. 
 Savings banks, 368. 
 
 annuities, 368. 
 insurance, 369. 
 SciEE/aciars to revive a judgment, 150. 
 Scotch patent, 393.
 
 698 INDEX. 
 
 Sculptures, copyright iu, 405. 
 
 Sea policies, assignmeut of, 171, 302. 
 
 Seamen, -wills of, 507, 508. 
 
 probate of wills of, 525, 526. 
 administratiou to effects of, 556. 
 Secueities f or money won at play, 141. 
 
 secured creditor in bankruptcy, 153, 191, 213, 217. 
 proof in bankruptcy by creditors holding, 192. 
 government, what are, 450. 
 real, what are, 450. 
 real, in Ireland, 451. 
 stolen, 623. 
 Seizure of after- acquired chattels, 42. 
 Separate use, 583. 
 
 trust for woman's, 584. 
 
 gift for "sole use" does not create trust for, 585. — See 
 also Wife. 
 Sepaeatioit of husband and wife, 612. 
 
 settlement on, 619. 
 Sequestration of profits of bankrupt, 238, 288. 
 Set-off in bankruptcy, 254. 
 Settlement of personal property, 423. 
 
 voluntary, void as against creditors, 262, 268, 472. 
 
 binding on settlor, 473. 
 covenant for, of wife's future property, 469. 
 covenant for, of husband's property, 471. 
 power of revocation, 474. 
 for settlor's own benefit revocable, 474. 
 voluntary, of personal estate, not void against subsequent 
 
 purchasers, 475. 
 stamps on, 475, Ixii. 
 on marriage, 471, 567. 
 by infants, 567. 
 money settled as land, 476. 
 proceeds of sale of settled land, 476. 
 chattels personal settled to go with land, 477. 
 leaseholds settled to go with freeholds, 479. 
 confirmation of settlement executed diuing infancy, 567, 
 
 568. 
 personal and real settlement, 569, n. 
 wife's equity for, 576. 
 
 release of, 581. 
 on divorce or judicial separation, 619. 
 antenviptial or postnuptial, inquiry into, on dissolution of 
 
 mai'riage, 619. 
 f onn of a marriage settlement of residuary personal estate 
 and stock in the funds, 646.
 
 INDEX. 699 
 
 Shakes in joint-stock companies, 7, 340, 347, 356, 357, 365. 
 
 sale of, 365. 
 
 transfer of, 347, 360, 638. 
 share warrants, 360. 
 interest of married woman in shares, 
 
 597. 
 title to, 039, 040. 
 Shelley's case, rule in, 433. 
 Ships, 88. 
 
 ownership of, 89. 
 alien cannot own British ship, 89. 
 colonial shipping, 88, n. 
 register, no trusts entered on, 90. 
 transfer of property in, 91. 
 
 equities may be enforced against owner and mortgagees, 90. 
 mortgage of, 92. 
 
 right of mortgagee to freight, 96. 
 no stamp duty on transfer of, 94. 
 certificate of registry, 90. 
 certificate of mortgage of, 94. 
 general ship, 95. 
 insurance of, 302. 
 
 assignee may sue iu his own name, 302. 
 Shops in the city of London are market overt, 623. 
 SiGNATTJEE to contracts, 121. 
 
 of drawee of bill, 125. 
 Simple contract debts, 148, 163, 167. 
 
 limitation of action for, 632. 
 Sisters, right of, under Statute of Distributions, 558. 
 Sittings of the Supreme Coui't of Judicatui'S, 308k 
 Soldiees, wills of, 507. 
 
 probate of wills of, 525. 
 administration to effects of, 556. 
 Sole use, gift for, 585. 
 
 Solicitoe, all attornies and proctors now solicitors, 144. 
 lien of, 37, 38. 
 contract by, 143. 
 
 Attornies and Solicitors Act, 1870. . 143. 
 Solicitors' Kemuneration Act, provisions of, 144. 
 not liable as such to bankrupt laws, 198. 
 cannot charge for professional trouble as trustee, 465. 
 Special referees. — See Official Refeeees. 
 SPECLiLTY debts, 148, 158, 163. 
 
 abolition of priority of, 148, 153, 158, 159, 166, 282, 
 
 492. 
 limitation of actions for, GGO. 
 Specific legacy, 539.
 
 700 INDEX. 
 
 Specification of patent, 384, 386, 387, 389, 390. 
 Stamp duty, none on agreement for sale of goods, 52, n. 
 none on transfer of ships, 94. 
 on charter-party, 95, n. 
 agreements, 119, n. 
 bills and notes, 135, n. 
 warrants of attorney, 150, n. 
 bonds, 162, n. 
 deeds of arrangement, 181. 
 policies of life insurance, 296, n., 475. 
 sea insurance, 302, n. 
 awards, 323, n. 
 
 contract notes and on mortgage of stock, 332. 
 mortgage to building society, 369, 370. 
 letters patent, 377, n. 
 appointment of new trustees, 463. 
 settlements, 475, Ixii. 
 probates, 521, 522, 527. 
 legacies, 476, 536, 537. 
 residuary bequests, 536. 
 letters of administration, 556. 
 shares of intestate's estates, 561. 
 Statute of Frauds. — See Statute 29 Car. II. c. 3. 
 Statutes cited — 
 
 13 Edw. I. c. 18, {elegit,) 81, 84. 
 c. 19, (intestates,) 551. 
 c. 45, {scire facias,) 150. 
 4 Edw. III. c. 7, (action by executors,) 101. 
 25 Edw. III. c. 5, (executors,) 101. 
 
 31 Edw. III. c. 11, (administrator,) 551. 
 21 Hen. VIII. c. 5, (next of kin,) 552. 
 
 27 Hen. VIII. c. 10, (Statute of Uses,) 12, 115, 427. 
 
 32 Hen. VIII. c. 37, (arrears of rent,) 575. 
 
 34 & 35 Hen. VIII. c. 4, (bankruptcy,) 196, 224. 
 
 37 Hen. VIII. c. 9, (interest,) 5, 165. 
 
 2 & 3 Phil. & Mary, c. 7, (stolen horses,) 625. 
 
 13 Eliz. c. 5, (gifts for defrauding creditors,) 61, 83, 472. 
 
 c. 7, (bankrupts,) 1S6, 201, 203, 209, 210, 224, 249. 
 c. 20, (charges on benefices,) 140. 
 
 14 Eliz. c. 11, s. 18, (dilapidations,) 105. 
 27 EHz. c. 4, (voluntary settlement,) 475. 
 31 Eliz. c. 12, (stolen horses,) 625, 626. 
 
 1 Jac. I. c. 15, (bankruptcy,) 196, 201, 202, 203, 204. 
 21 Jac. I. c. 3, (patents,) 374., 375. 
 
 c. 16, (Statute of Limitations,) 116, 123, 629, 632. 
 
 c. 19, (bankruptcy,) 63, 196, 204, 249. 
 s. 11, (goods in possession,) 85.
 
 l^'DEx. 701 
 
 Statutes cited — 
 
 22 & 23 Car. II. c. 10, (distribution,) 654, 557, 558. 
 29 Car. II. c. 3, (Statute of Frauds,) ss. 1, 2. .44, 118, 332. 
 s. 4, (contract in wi-iting,) 53, 122, 472, 535. 
 8. 16, (writ oijicri facias,) 82. 
 s. 17, (sale of goods,) 48, 49. 
 ss. 19—21, (uuncui^ative testament,) 506. 
 8. 22, (revocation of will of personal estate,) 507. 
 8. 23, (soldiers and mariners,) 508. 
 8. 25, (husband,) 558. 
 
 1 Jac. II. c. 17, (distribution,) 557, 558. 
 
 2 Will. & Mary, sess. 1, c. 5, s. 2, (distress for rent,) 39. 
 4 & 5 Will. & Mary, c. 2, (custom of York,) 505. 
 
 7 & 8 Will. III. c. 38, (custom of Wales,) 505. 
 
 8 & 9 Will. III. c. 11, (judgments,) 162. 
 
 9 & 10 Will. III. c. 15, (arbitration,) 307, 317, 318. 
 
 2 & 3 Anne, c. 5, (custom of York,) .005. 
 
 3 & 4 Anne, c. 9, (promissory notes,) 5, 129, 172. 
 
 4 Anne, c. 10, (nuncupative testaments,) 506. 
 
 4 & 5 Anne, c. IG, (bond debts,) 164. 
 
 7 Anne, c. 25, (promissory notes,) 5, 129, 172. 
 
 8 Anne, c. 19, (copyi-ight,) 398. 
 
 9 Anne, c. 14, (money won at play,) 141. 
 12 Anne, stat. 2, c. 16, (usury,) 142. 
 
 I Geo. I. Stat. 2, c. 19, (stock,) 329, 339. 
 7 Geo. I. c. 31, (bankrupts,) 258. 
 
 II Geo. I. 0. 18, (custom of London,) 505. 
 
 5 Geo. II. c. 30, (bankrupts,) 224, 255, 264. 
 
 7 Geo. II. e. 8, (stock jobbing,) 141, 331. 
 
 8 Geo. II. c. 13, (copyright in prints, &c.,) 404. 
 
 9 Geo. II. c. 36, (mortmain,) 542, 543. 
 
 19 Geo. II. c. 37, (ship insurance,) 295, 302. 
 4 Geo. III. c. 33, (bankrupts,) 203, 205. 
 7 Geo. III. c. 38, (copyright in prints,) 404. 
 
 14 Geo. III. c. 48, (life insurance,) 295. 
 
 c. 78, (Metropolitan Building Act,) 301. 
 
 15 Geo. III. c. 51, (notes and bills,) 126. 
 
 17 Geo. III. c. 30, (bills of exchange,) 127, 128. 
 
 c. 57, (copyright in prints, &c.,) 404. 
 27 Geo. III. c. 16, (notes and biUs,) 127. 
 
 36 Geo. III. c. 52, (legacy duty,) 512, 536, 538, 539. 
 
 37 Geo. III. c. 32, (notes and bills,) 127. 
 
 c. 61, (notes and bills,) 127. 
 c. 120 (notes and bills,) 127. 
 
 38 Geo. III. c. 7, (notes and bills,) 127. 
 
 c. 71, (copyright in sculjitm-cs, &c.,) 405. 
 
 0. 87, (infant and absent exo(^ntors.) 51^, 555.
 
 702 INDEX. 
 
 Statutes cited — 
 
 39 Geo. III. c. 24, (notes and biUs,) 127. 
 
 c. 47, (notes and bills,) 127. 
 
 c. 107, (stamps,) 127. 
 39 & 40 Geo. III. c. 98, (accumulations,) 435. 
 41 Geo. III. c. 107, (copyright,) 398. 
 
 44 Geo. III. c. 4, (continuation of lavs,) 127. 
 
 c. 98, (medicine,) 521. 
 
 45 Geo. III. c. 25, (notes and bills,) 127. 
 
 46 Geo. III. c. 135, (bankruptcy,) 255, 259. 
 
 48 Geo. III. 0. 88, (bills of exchange,) 126. 
 
 c. 123, (discharge of small debtors,) 292. 
 c. 149, (probate, &c.,) 521. 
 
 49 Geo. III. c. 121, (banln-uptcy,) 249, 258, 259. 
 
 54 Geo. III. c. 5G, (copyright in sculptures, &c.,) 405, 411. 
 
 c. 156, (copyright,) 398. 
 
 55 Geo. III. c. 148, (stamps,) 52. 
 
 c. 184, (stamps,) 521, 526, 536, 537, 556, 561. 
 
 56 Geo. III. c. 21, (notes and bills,) 127. 
 
 c. GO, (unclaimed dividends,) 636. 
 c. 137, (bankruptcy,) 259. 
 
 3 Geo. IV. c. 39, (warrants of attorney and cognovits,) 149, 152. 
 
 c. 70, (notes and biUs,) 127. 
 
 4 Geo. IV. 0. 83, (factors and agents,) 626. 
 
 5 Geo. IV. c. 98, (bankruptcy,) 197. 
 
 6 Geo. IV. c. 16, (banki-uptcy,) 63, 85, 116, 175, 180, 196, 197, 
 
 200, 201, 202, 203, 204, 205, 209, 210, 224, 
 247, 249, 250, 251, 252, 255, 258, 259, 264, 
 269, 436, 487. 
 0. 94, (factors and agents,) 626. 
 
 7 Geo. IV. c. 6, (bUIs and notes,) 127, 128. 
 
 0. 46, (banking companies,) 345. 
 c. 57, (insolvency,) 286. 
 7 & 8 Geo. IV. c. 29, (stolen goods,) 624. 
 
 9 Geo. IV. c. 14, (written contracts,) 50, 117, 122, 123, 124, 487, 
 
 488, 632. 
 c. 32, (felony,) 59. 
 c. 65, (bank note,) 127, 128. 
 
 10 Geo. IV. c. 56 (friendly societies,) 365. 
 
 11 Geo. IV. & I Will. IV. c. 20, (seamen's wiUs,) 508, 526. 
 
 c. 38, (insolvency,) 286. 
 
 c. 40, (executors trustees of residue,) 
 
 549. 
 c. 46, (illusory appointments,) 438. 
 c. 65, (infants, idiots and lunatics,) 
 332. 
 1 & 2 Will. IV. c. 32, (Game Act,) 24, 27, 28.
 
 INDEX. 703 
 
 Statutes cited — 
 
 1 & 2 Will. IV. c. 56, (banlcruptcy court,) 85, 175, 197, 209, 210, 
 
 224. 
 
 2 & 3 Will. IV. c. 40, (seamen's wills,) 520, 
 
 3 & 4 AVill. IV. c. 15, (copyright in dramatic works,) 399. 
 
 c. 27, (limitations,) G29, G30, G31, G32. 
 c. 42, s. 2, (actions by and against executors,) 
 101, 103. 
 
 8. 3, (limitation,) 629, 630, 633. 
 
 8. 4, (disabilities,) G31, 633. 
 
 8. 5, (acknowledgment,) 631. 
 
 ss. 28, 29, (interest,) 167. 
 
 s. 39, (arbitration,) 310, 314. 
 
 8. 40, (witnesses on arbitration,) 310. 
 c. 47, (bankruptcy,) 197. 
 0. 74, (fines and recoveries,) 580, 581. 
 0. 98, (bills and notes,) 142. 
 c. 105, (dower,) 541. 
 
 4 & 5 Will. IV. c. 22, (apportionment of income,) 428, 429. 
 
 c. 25, (seamen's pay,) 526. 
 
 c. 29, (real securities in Ireland,) 451, 452. 
 
 0. 40, (friendly societies,) 365. 
 
 c. 94, (public officer, ) 344.' 
 
 5 & 6 Will. IV. c. 41, (securities for illegal consideration,) 138, 
 
 141, 142. 
 c. 83, (patents,) 377, 380, 389. 
 
 6 & 7 Will. IV. c. 32, (building societies,) 369, 370. 
 
 c. 59, (copyright in prints, &;c.,) 404. 
 0. 71, (tithe rent-charges,) 633. 
 0. 76, (newspapers,), 409. 
 
 7 Will. IV. & 1 Vict. c. 26, (wills,) 339, 433, 505, 506, 507, 508, 
 
 509, 520, 547, 548. 
 c. 73 (public officer,) 344, 345. 
 1 & 2 Vict. c. 96, (banking companies,) 345. 
 
 c. 110, (insolvent debtors,) 197, 203, 286. 
 s. 8, (warrant,) 200. 
 88. 9, 10, (execution of warrants of attorney,) 
 
 151. 
 s. 12, (seizure of notes and securities,) 173, 472. 
 8. 13, (judgments a charge on real estate,) 250. 
 88. 14, 15, (charging stock,) 337, 338, 373, 472. 
 8. 16, (imprisonment,) 154. 
 8. 17, (interest on judgment debt,) 152. 
 8. 22, (judgment of inferior courts,) 157. 
 8. 35, (discharge,) 287. 
 8. 36, (petition by creditor,) 287. 
 8. 37, (vesting order,) 287.
 
 704 INDEX. 
 
 Statutes cited — 
 
 1 & 2 Vict. c. 110, s. 45, (assignees,) 288. 
 
 s. 47, (sale,) 288. 
 
 s, 48, (mortgage,) 288. 
 
 s. 55, (benefice,) 288. 
 
 8. 56, (officer,) 288. 
 
 8. 59, (voluntary preference,) 288. 
 
 8. 62, (dividend,) 288. 
 
 s. 69, (schedule,) 289. 
 
 ss. 70, 71, 72, (examination,) 289. 
 
 8. 75, (discharge,) 289. 
 
 ss. 76, 77, 78, (postponement of discharge,) 
 
 289, 290. 
 8. 79, (costs,) 290. 
 8. 80, (annuities,) 290. 
 88. 87, 88, 89, (future execution,) 290. 
 ss. 90, 91, (freedom from execution,) 290. 
 
 2 & 3 Vict. c. 11, (bankruptcy,) 197, 259. 
 
 c. 29, (banla-uptcy,) 197, 259. 
 c. 37, (usury,) 142. 
 c. 54, (custody of infants,) 014. 
 c. 67, (patents,) 377. 
 
 3 & 4 Vict. c. 73, (friendly societies,) 365. 
 
 0. 82, (stock judgments,) 337, 472. 
 0. 110, (loan societies,) 368. 
 c. Ill, (banking companies,) 345. 
 5 Vict. c. 5, (Court of Exchequer in Equity,) 334. 
 
 5 & 6 Vict. c. 39, (factors and agents,) 626. 
 
 c. 45, (copyright,) 398,399,400,401,402,403,404,409. 
 
 c. 79, (stamps on probates,) 521. 
 
 c. 85, (banking companies,) 345. 
 
 c. 100, (copyi-ight in designs,) 409, 410. 
 
 c. 116, (insolvency,) 290, 291. 
 
 c. 122, (bankruptcy,) 85, 116, 197, 210, 264, 485, 487. 
 
 6 & 7 Vict. c. 65, (copyright in designs,) 409, 410. 
 
 c. 66, (index to warrants of attorney,) 152. 
 
 7 «&: 8 Vict. c. 12, (international copyright,) 406, 407. 
 
 c. 32, (bank notes,) 128. 
 
 c. 66, (aliens,) 57. 
 
 c. 69, (patents,) 279, 389. 
 
 c. 70, (arrangements between debtors and creditors,) 
 
 181. 
 c. 76, (transfer of property,) 424. 
 c. 96, (insolvency,) 154, 197, 202, 209, 290, 291, 292. 
 c. 110, (joint stock companies,) 340, 345, 346, 347, 
 
 349. 
 c. Ill, (banknxptcy of joint stock companies,) 349.
 
 i 
 
 INDEX. 70o 
 
 Statutes cited — 
 
 7 & 8 Vict. c. 113, (banking- companies,) 310, 348, 319. 
 
 8 & 9 Vict. c. 16, (Companies Clauses Consolidation Act,) 3-11, 
 
 342, 343, 344. 
 c. 18, (lands clauses consolidation,) 341. 
 c. 20, (railways clauses consolidation,) 37, 341, 
 c. 48, (bankrupt's oath,) 197. 
 c. G2, (unclaimed dividends,) G3G. 
 c. 76, (legacy duty,) 512, 536. 
 c. 93, (copyiight in colonies,) 403. 
 0. 97, (stock,) 334, 340. 
 c. 106, (real property,) 44, 424. 
 c. 109, (gaming aud wagering,) 141. 
 c. 127, (execution,) 84, 154, 292. 
 
 9 & 10 Vict. c. 27, (friendly societies,) 365. 
 
 c. 93, (death by accident, compensation,) 101, 102. 
 c. 95, (small debts,) 7, 147, 154, 292. 
 
 10 & 11 Vict. c. 14, (markets clauses consolidation,) 341. 
 
 c. 15, (gas clauses consolidation,) 341. 
 c. 17, (water clauses consolidation,) 341. 
 c. 27, (harboui-8 clauses consolidation,) 341. 
 c. 34, (paving clauses consolidation,) 342. 
 c. 65, (cemeteries clauses consolidation, ) 342. 
 c. 78, (joint stock companies,) 345, 346, 347, 348. 
 c. 83, (aliens,) 57. 
 0. 95,N(copyright in colonies,) 403. 
 c. 96, (trust fimds,) 467, 468. 
 
 c. 102, (bankruptcy and insolvency,) 197, 287, 290, 
 291. 
 
 11 & 12 Vict. c. 45, (Winding-up Act,) 349. 
 
 c. 86, (bankruptcy,) 197. 
 
 12 & 13 Vict. c. 67, (sequestration,) 288. 
 
 c. 74, (trustees' relief,) 467. 
 
 c. 101, (small debts,) 147. 
 
 c. 106, (bankruptcy,) 197, 251. 
 
 88. 6 — 11, (commissioners,) 210. 
 
 88. 38 — 45, (official assignee,) 224. 
 
 8. 66, (who traders,) 198, 200, 206. 
 
 8. 67, (acts of bankruptcy,) 201, 202, 203, 
 204. 
 
 8. 08, (composition deeds,) 180. 
 
 s. 69, (act of bankruptcy,) 204. 
 
 8. 70, (declaration,) 202. 
 
 8. 72, (judgment debt,) 203, 206. 
 
 8. 74, (petition,) 205. 
 
 R. 75, (filing petition,) 205. 
 
 s. 76, (petition for arrangement,) 202. 
 W.P.P. z z
 
 706 INDEX. 
 
 Statutes cited — 
 
 12 & 13 Vict. c. lOG, Bs. 78, 79, (affidavit of debt,) 207. 
 s. 81, (admission of debt,) 207. 
 s. 89, (adjudication,) 209, 212. 
 s. 93, (petition against self,) 202, 209. 
 s. 101, (adjudication,) 212. 
 s. 102, (official assignee,) 224. 
 s. 125, (order and disposition,) G3, 85. 
 8. 129, (one year's rent,) 250. 
 s. 133, (executions, &c.,) 259. 
 s. 139, (assignees,) 224. 
 s. 140, (joint creditors,) 247. 
 s. 141, (assignees,) 175, 224, 269. 
 s. 142, (assignees,) 224, 269. 
 s. 147, (powers,) 436. 
 8. 152, (joint debts,) 485. 
 8. 170, (apprentice,) 252. 
 8. 171, (setoff,) 255. 
 s. 172, (debts,) 258. 
 8. 190, (dividends,) 249. 
 s. 197, (surplus,) 249. 
 8. 198, (certificate,) 264. 
 s. 199,icertificate,) 264. 
 8. 200, (certificate,) 264, 487. 
 s. 204, (promise to pay barred debt,) 116. 
 s. 224, (arrangements by deed,) 181. 
 sched. Z., 265. 
 c. 108, (winding-up amendment,) 349. 
 
 13 & 14 Vict. c. 21, (interpretation,) 314. 
 
 c. 35, (Court of Clianceiy,) 531. 
 
 c. 60, (Trustee Act, 1850,) 300, 462, 463, 464. 
 
 0. 61, (small debts,) 7, 147. 
 
 c. 83, (railways,) 349. 
 
 c. 104, (Designs Act, 1850,) 405, 406, 410. 
 
 c. 115, (friendly societies,) 365. 
 
 14 & 15 Vict. c. 8, (designs,) 410. 
 
 c. 25, (agricultural fixtui'es, emblements,) 16, 
 
 21. 
 c. 99, (evidence,) 311. 
 
 15 & 16 Vict. 0. 3, (administration for crown,) 561. 
 
 c. 6, (designs,) 410. 
 
 c. 12, (international copyi-ight,) 405, 408. 
 
 c. 24, (wills amendment,) 507. 
 
 c. 31, (industrial societies,) 368. 
 
 c. 54, (small debts,) 147, 157. 
 
 c. 55, (trustees,) 462, 463, 464. 
 
 c. 65, (friendly societies,) 365.
 
 INDEX. 707 
 
 Statutes cited — 
 
 15 & 16 Vict. c. 7G, (common law procedm-c,) 31, 107, 108, 112, 
 
 150, 175, 515. 
 c. 83, (patent law amendment,) 374, 377, 378, 382, 
 389, 392, 393, 395. 
 
 16 & 17 Vict. c. 5, (stamps on patents,) 376. 
 
 c. 45, 8. 10, (savings banks annuities,) 369. 
 
 c. 51, (succession duty,) 476, 481, 538, 539, Ixiii. 
 
 c. 70, (lunatics,) 333, 334. 
 
 0. 107, (copyright,) 403. 
 
 c. 115, (patents,) 377, 378. 
 
 c. 123, (friendly societies,) 365. 
 
 17 & 18 Vict. c. 16, (county courts jurisdiction,) 147, 291. 
 
 c. 25, (industrial and provident societies,) 368. 
 
 0. 36, (bills of sale,) 64, 65, 69. 
 
 c. 90, (repeal of usury laws,) 142. 
 
 c. 101, (friendly societies,) 365. 
 
 c. 104, (Merchant Shipping Act,) 36, 88, 89, 90, 91, 
 
 92, 93, 95, 509, 526. 
 
 c. 120, (Merchant Shipping Repeal Act,) 88. 
 
 c. 125, (Common Law Procedure Act, 1854,) 
 
 88. 3, 6, 7, (arbitration,) 306, 
 
 ss. 5, 8, 9, (award,) 317, 319. 
 
 8. 11, (proceedings at law may be stayed by 
 
 arbitration,) 305. 
 s. 12, (appointmentof arbitrator by a judge,) 
 
 312, 320. 
 8. 13, (death of arbitrator,) 312, 313. 
 8. 14, (appointment of umpire,) 320. 
 s. 15, (time for making award,) 314, 321. 
 8. 16, (possession of lands), 322. 
 8. 1 7, (submission to arbitration by consent 
 mayjbe made a rule of Coui't,) 309, 
 310. 
 s. 60, (Court may examine judgment debtor 
 
 as to debts owing to him,) 173. 
 ss. 61, 05, (garnishee,) 173. 
 88. 68, 69, (writ of mandamus,) 97. 
 8. 78 (order for restitution of chattels,) 4. 
 ss. 79 — 82, (writ of injunction,) 98. 
 
 18 & 19 Vict. c. 15, 8. 7, (judgments,) 157. 
 
 c. 43, (marriage settlement of infants,) 567. 
 
 c. 63, (friendly societies,) 365. 
 
 0. 67, (bills of exchange and promissory notes,) 134. 
 
 c. 91, (merchant shipping amendment,) 36, 88, 92. 
 
 c. Ill, (bills of lading,) 5, 46, 96. 
 
 c. 122, (fire insurance,) 301. 
 
 zz2
 
 708 INDEX. 
 
 Statutes cited — 
 
 18 & 19 Vict. c. 132, (labom-ors' dwellings,) 372. 
 
 c. 133, (Limited Liability Act,) 350. 
 
 19 & 20 Vict. c. 40, (provident societies,) 368. 
 
 c. 47, (joint stock companies,) 349, 351. 
 c. 94, (administration,) 561. 
 
 c. 97, s. 1, (writ of execution, bona fide purchaser,) 
 82, 623. 
 
 s. 2, (restitution of chattels,) 4. 
 
 s. 3, (consideration for promise,) 120. 
 
 s. 5, (surety,) 169. 
 
 s. 6, (bill of exchange,) 126. 
 
 s. 10, (infancy, coverture, lunacy,) 629, 631, 
 632. 
 
 s. 11, (joint debtor, absence beyond seas,) 
 488, 631. 
 
 s. 12, (absent debtors,) 488, 629, 632. 
 
 s. 13, (debts, limitations,) 117, 123, 632. 
 
 s. 14, (co-contractor's interest,) 123, 490. 
 c. 108, (SmaU Debts Act,) 7, 147. 
 
 20 & 21 Vict. c. 14, (Winding-up Acts,) 340, 349, 351. 
 
 c. 49, (joint-stock companies,) 340, 349, 351. 
 
 c. 54, (fraudulent trustees, bankers,) 468. 
 
 c. 57, (disposition of wife's reversionary interest,) 
 
 579, 581. 
 c. 77, (Court of Probate Act, 1857,) 517, 524, 552. 
 
 s. 3, (lords of manors,) 518. 
 
 s. 23, (court of record,) 146. 
 
 s. 29, (practice,) 520. 
 
 ss. 46, 47, (district registry,) 519. 
 
 s. 59, (abode of testator,) 519. 
 
 s. 70, (administrator jjfK(?e?2<e Ixte^) 555. 
 
 s. 71, (receiver,) 555. 
 
 s. 72, (administrator,) 555. 
 
 s. 73, (administration,) 556. 
 
 s. 74, (administration,) 555. 
 
 s. 86, (voidable probates), 519. 
 c. 78, (Joint Stock Companies Winding-up,) 349. 
 0. 79, (probates,) 516, 524. 
 c. 80, (Joint Stock Companies,) 351. 
 c. 85, (Court for Divorce and Matrimonial Causes,) 
 615. 
 
 s. 6, (jurisdiction,) 146, 616. 
 
 s. 7, (decree for judicial separation,) 616. 
 
 s. 16, (judicial separation,) 616. 
 
 s. 17, (restitution of conjugal rights,) 616. 
 
 s. 21, (protection order,) 617.
 
 INDEX. 709 
 
 Statutes cited — 
 
 20 & 21 Vict. c. 85, s. 24, (alimony,) G16. 
 
 s. 25, {v,-iicf(mc sole,) 616. 
 
 s. 26, (wife's necessaries, joint power,) 617. 
 
 s. 27, (petition,) 618. 
 
 ss. 27—31, (adultery,) 618. 
 
 8. 32, (alimony,) 619. 
 
 s. 35, (custody and maintenance of children,) 
 
 620. 
 s. 45, (children's settlement,) 619. 
 s. 57, (petition,) 619. 
 
 21 & 22 Vict. c. 27, (Coui-t of Chancery,) 98. 
 
 c. 56, (probates,) 524. 
 
 0, 60, (joint stock companies,) 349, 351. 
 
 c. 70, (copyright,) 409, 410. 
 
 c. 74, (small debts,) 147. 
 
 c. 91, (joint stock companies,) 349, 351. 
 
 c. 95, (executors,) 516, 517, 521, 524, 552, 553, 555, 
 
 557. 
 c. 101, (Court for Divorce,) 365. 
 c. 108, (wife's property,) 615, 616, 617, 618. 
 
 22 & 23 Vict. c. 35, s. 12, (powers,) 437. 
 
 s. 21, (assignment to self,) 641. 
 
 s. 23, (payment of money by trustees,) 457. 
 
 s. 24, (concealment of deeds,) 641. 
 
 ss. 27, 28, 29, (administration,) 535, 553. 
 
 s. 30, (trustees may apply for opinion of 
 judge,) 469. 
 
 s. 31, (trustees,) 467. 
 
 s. 32, (investments,) 452. 
 c. 36, (stamps on probates,) 521. 
 0. 57, (imprisonment for debt,) 147. 
 c. 61, (divorce amendment,) 615, 620. 
 
 23 Vict. c. 5, (Indian government notes,) 525. 
 
 c. 15, (stamps,) 40, 525. 
 c. 28, (stockjobbing,) 141, 331. 
 23 & 24 Vict. c. 38, ss. 3, 4, (registered judgment,) 151, 153. 
 8. 8, (concealment of deeds,) 641. 
 8. 9, (tru.stees may apply for opinion of judge,) 
 
 469. 
 8. 10, (investments,) 452. 
 8. 11, (investments,) 453. 
 8. 12, (investments,) 452. 
 s. 13, (personal estate of intestate,) 629, 
 8. 14, (accounts in chancery,) 531. 
 c. 58, (friendly societies,) 365. 
 c. 83, (infants' settlements, Ireland,) 667.
 
 710 INDEX. 
 
 Statutes cited — 
 
 23 & 24 Vict. c. 90, (game,) 27. 
 
 c. 106, (railways,) 341. 
 0. Ill, (stamps,) 4G, 127. 
 
 c. 126, 8. 13, (Common Law Procedure Act, 1860 ; 
 bill of sale,) 84. 
 
 88. 28—31, (garnishee,) 173. 
 
 8. 32, (costs,) 98. 
 c. 127, s. 28, (solicitor's lien,) 38. 
 c. 144, (divorce,) 615, 618, 619. 
 c. 145, 8. 25, (investment of trast moneys,) 454. 
 
 s. 26, (maintenance,) 447, 448. 
 
 s. 27, (appointment of trustees,) 458. 
 
 8. 29, (receipt of trustees,) 457. 
 
 8. 34, (date of operation,) 447, 454, 458. 
 
 24 Vict. c. 3, (transfer of stock,) 330, 636. 
 
 c. 5, (exchequer bills,) 450. 
 c. 10, (Court of Admiralty,) 36, 94, 146. 
 c. 14, (post-office savings banks,) 368. 
 24 & 25 Vict. c. 73, (designs for articles of manufacture,) 409. 
 c. 92, s. 3, (probate, voluntary debts,) 527. 
 0. 95, (criminal statutes repeal,) 468, 624. 
 c. 96, ss. 80—86, (fraudulent trustees,) 408. 
 
 s. 100, (restitution of stolen property,) 624. 
 c. 114, (domicile,) 509, 510. 
 c. 121, (domicile,) 510, 511. 
 c. 134, (Bankruptcy Act, 1861,) 178, 197, 291. 
 » 8. 2, (reduction of London commissioners,) 
 
 210. 
 s. 3, (jurisdiction of coimty courts,) 210. 
 s. 4, (county courts,) 210. 
 ss. 19 — 27, (abolition of insolvent court,) 
 
 292. 
 s. 69, (all debtors subject to bankrupt laws,) 
 
 198, 200, 292. 
 8. 70, (act of bankruptcy,) 179, 201, 212. 
 s. 71, (acts of bankiaiptcy,) 202, 204. 
 s. 72, (declaration of insolvency,) 202. 
 8. 73, (execution,) 166, 202. 
 8. 75, (insolvency in colonics,) 205. 
 s. 76, (judgment debtor summons,) 206. 
 88. 76 — 85, (act of bankruptcy,) 203. 
 8. 77, (decrees and orders,) 207. 
 8. 83, (summons, adjudication of bank- 
 ruptcy,) 207. 
 s. 86, (adjudication,) 202, 209. 
 s. 88, (petition,) 209.
 
 INDEX. 711 
 
 Statutes cited — 
 
 24 & 25 Vict. c. 134, ss. 98 — 107, (pauper and lunatic prisoners,) 
 
 293. 
 s. 108, (official assignees,) 85, 224. 
 ss. 116—129, (assignees,) 224. 
 8. 117, (assignees,) 85, 224, 225. 
 8. 128, (debts under 10/.,) 225. 
 8. 129, (creditors' assignee,) 181. 
 8. 134, (half-pay, &c.,) 251. 
 8. 135, (sequestration of benefice,) 251. 
 8. 152, (proof — distinct contracts,) 494. 
 8. 157, (certificates,) 265. 
 s. 159, (after-acquired property,) 270. 
 8. 161, (order of discharge,) 205. 
 8. 163, (discharge,) 487. 
 s. 164, (barred debt,) 116. 
 8. 177, (jomt estates,) 494. 
 s. 192, (trust deeds for creditors,) 182. 
 8. 194, (registration,) 178, 180, 193. 
 s. 230, (repeal of former Acts,) 206. 
 8. 232, (construed with former Acts,) 86. 
 
 25 Vict. c. 22, (inland revenue,) 525. 
 
 25 & 26 Vict. c. 63, (Merchant Shipjoing Act Amendment Act, 
 1862,) 36, 88. 
 8. 3, (equities against owners and mortgagees 
 
 of ships,) 90. 
 ss. 66—78, (lien for freight,) 36, 96. 
 c. 68, (copyright works of art,) 406. 
 c. 81, (divorce,) 615, 618, 619. 
 c. 80, ss. 12 — 14, (kmatics or idiots,) 334. 
 c. 87, (industrial and provident societies,) 368. 
 c. 88, (fraudulent marking of merchandise,) 628. 
 0, 89, (Companies Act, 1862,) 340, 346, 348, 349, 
 351, 363. 
 8. 4, (partners,) 352. 
 s. 6, (memorandum of association,) 351. 
 s. 7, (liability may be limited,) 353. 
 8. 8, (shares,) 353. 
 8. 9, (guarantee,) 354. 
 8. 10, (memorandum of unlimited company,) 
 
 354. 
 8. 11, (effect of memorandum,) 354. 
 8. 12, (powers to alter memorandum,) 354. 
 8. 13, (change of name,) 354. 
 ss. 14, 15, (articles of association,) 356. 
 8. 16, (stamp on articles,) 356. 
 8. 17, (registration of articles,) 356.
 
 712 INDEX. 
 
 Statutes cited — 
 
 25 &2G Vict. c. 89, s. 18, (certificate of incorporation,) 356. 
 
 8. 21, (licence to hold land,) 356. 
 
 8. 22, (shares personal estate.) 356. 
 
 8. 25, (register,) 356. 
 
 8. 26, (annual list of members,) 357. 
 
 8. 30, (register of members,) 357. 
 
 8. 31, (certificate of shares,) 357. 
 
 s. 37, (register evidence,) 357. 
 
 8. 38, (liability of contributories, ) 362. 
 
 8. 39, (registered office,) 357. 
 
 s. 41, (name of limited comj)any,) 357. 
 
 8. 43, (mortgages and charges,) 358. 
 
 s. 44, (annual statement,) 358. 
 
 8. 47, (bills and notes,) 504. 
 
 s. 50, (special resolution,) 358. 
 
 8. 51, (special resolution,) 359. 
 
 8. 53, (registry of special resolution,) 359. 
 
 8. 54, (copies of ditto,) 359. 
 
 8. 74, (contributories,) 361. 
 
 ss. 79—128, (winding-up by the Court,) 361. 
 
 s. 81, (Court,) 361. 
 
 ss. 92—97, 133—144, (official liquidators,) 361. 
 
 ss. 129 — 146, (voluntary winding-up,) 361. 
 
 ss. 147—152, (supervision of Court,) 361. 
 
 ss. 175, 176 (application of Act,) 350, 361. 
 c. 114, (poaching,) 24. 
 26 Vict. c. 14, (post office savings banks,) 368. 
 c. 28, (stock certificates,) 331. 
 
 26 & 27 Vict. c. 41, (lien of innkeepers,) 35. 
 
 c. 56, (loan societies,) 368. 
 c. 57, (Regimental Debts Act,) 525. 
 c. 87, (Savings Banks Acts Amendment,) 368. 
 c. 92, (Clauses Consolidation Act, railways,) 341. 
 c. 93, (ditto waterworks,) 341. 
 c. 105, (bills and notes,) 128. 
 
 c. 118, (Companies Clauses Consolidation Act,) 341, 
 342. 
 
 27 Vict. c. 19, (companies seals,) 364. 
 27 & 28 Vict. c. 32, (banks,) 345. 
 
 c. 36, (army prize,) 526. 
 
 c. 43, ss. 3 — 5, (government annuities,) 369. 
 
 c. 44, (property of wife deserted,) 617. 
 
 c. 56, (stamps,) 295, 521, 524. 
 
 0. 95, (death by injury,) 101, 102. 
 
 c. 112, (register of writs of execution,) 151, 250, 488. 
 
 c. 114, (improvement of land,) 451.
 
 I 
 
 INDEX. 713 
 
 Statutes cited — 
 
 27 & 28 Vict. c. 120, (railways,) 311. 
 
 c. 121, (railways,) 341. 
 
 28 & 29 Vict. c. 72, (seamen's wills,) -508. 
 
 c. 78, (Mortgage Debenture Act,) 3G-i. 
 
 c. 8G, (partnership,) 500, 501. 
 
 c. 96, (stamps,) 95. 
 
 c. 99, (county courts,) 7, 147, 4G4. 
 
 29 & 30 Vict. c. 14, (smaU debts,) 147. 
 
 c. 32, (alimony,) 015, 619. 
 
 c. 96, (registration of bills of sale,) 64, 65. 
 
 30 Vict. c. 23, s. 3 et seq., (stamps on sea policies, repeal of Acts,) 
 
 302. 
 c. 29, (sale and purchase of shares,) 365. 
 
 30 & 31 Vict. c. 35, (Criminal Law Amendment,) 625. 
 
 c. 117, (industrial and provident societies,) 368. 
 0. 127, (railway companies,) 341. 
 c. 131, (Companies Act, 1862, amendment,) 349, 
 351, 363. 
 
 ss. 4 — 8, (unlimitedliability of directors,) 353. 
 
 ss. 9 — 20, (reduction of capital and shares,) 
 355. 
 
 s. 21, (sub -division of shares,) 355. 
 
 s. 23, (associations not for profit,) 358. 
 
 ss, 27 — 33, (share warrants to bearer,) 360. 
 
 s. 28, (effect of share warrant,) 360. 
 
 8. 37, (contracts,) 360, 504. 
 
 s. 40, (winding-up petition,) 361. 
 
 ss. 41, 42, (winding-up,) 361. 
 c. 132, (East India stock,) 452. 
 c. 142, (Coimty Courts Acts Amendment,) 7, 147. 
 
 8. 24, (j)aymcnt into Court by trustees,) 468. 
 
 8. 25, (extension of powers,) 468. 
 c. 144, (Policies of Assurance Act, 1867,) 6, 172, 297. 
 
 ss. 1 — 4, (assignment of life policies,) 297. 
 
 8. 3, (notice of assignment,) 640. 
 
 s. 6, (acknowledgment of notice,) 298. 
 
 31 k 32 Vict. c. 54, (judgments extension,) 157. 
 
 c. 71, (county courts admiralty jurisdiction,) 95, 
 
 147, 487. 
 c. 77, (divorce appeals, ) 615. 
 c. 86, (assignees of marine policies,) 6, 172. 
 
 8. 1, (assignees of marine policies,) 302. 
 c. 90, s. 1, (public departments, payments,) 526. 
 
 s. 2, (sums under 100/., powers of war depart- 
 ment,) 526. 
 c. 104, (Bankruptcy Act Amendment,) 182.
 
 714 INDEX. 
 
 Statutes cited — 
 
 31 & 32 Vict. c. 104, s. 3, (assent to composition deeds,) 183. 
 
 c, 124, 8. 7, (mortgage debts on leaseholds, pro- 
 bate,) 527. 
 8. 11, (exemption of building societies from 
 stamji duties restricted,) 370. 
 
 c. 129, (colonial shipping,) 88. 
 
 32 & 33 Vict. c. 24, (newspapers,) 409. 
 
 c, 46, (specialty and simple contract debts,) 148, 159, 
 
 -166, 516. 
 c. 48, (Companies Clauses Act Amendment,) 341, 
 
 342. 
 c. 51, (County Court Admiralty Jurisdiction Act 
 
 Amendment,) 95, 147. 
 c. 59, (savings banks and post-office savings banks,) 
 
 368. 
 c. 62, (imprisonment for debt,) 154, 204, 293. 
 
 ss. 4, 5, 6, 11 et seq. (excejitions,) 155, 156, 
 
 157. 
 s. 24, (execution of warrants of attorney, ) 151. 
 8. 25, (informal execution of waiTant,) 151. 
 s. 26, (filing warrant of attorney,) 149, 152. 
 ss. 27, 28, (filing judge's order,) 152. 
 0. 71, (Bankruptcy Act, 1869,) 63, 183, 197, 202. 
 8. 4, (interpretation,) 176, 209. 
 s. 5, (exclusion of company, &c.,) 350. 
 8. 6, (petition for adjudication,) 198, 199, 201, 
 202, 203, 208. 
 par. 1, (act of bankruptcy,) 179, 201. 
 par. 5, (act of bankruptcy,) 166. 
 s. 7, (debtor's summons,) 208. 
 8. 8, (proceedings on petition,) 209, 212. 
 8. 12, (creditors bound by proceedings,) 116. 
 8. 14, (appointment of trustee,) 225. 
 s. 15, (property of bankrupt,) 63, 86, 87, 176, 
 
 270, 439, 637. 
 8. 17, (devolution of property on trustee,) 85, 
 
 87, 176, 225. 
 8. 22, (possession of property by trustee,) 176. 
 8. 25, (power of trustee,) 437. 
 8. 31, (debts,) 254. 
 s. 32, (preferential debts,) 251. 
 s. 33, (apprentice,) 252. 
 s. 34, (distraint for rent, &c.,) 250, 255. 
 8. 35, (rent, &c.,) 257. 
 8. 37, (distinct contracts, &c.,) 257, 494. 
 8. 39, (set-off,) 255.
 
 INDEX. 715 
 
 Stattttes cited — 
 
 32 & 33 Vict. c. 71, e. 42, (fli\-idend,) 248. 
 
 s. 43, (dividend,) 248. 
 
 s. 45, (surplus,) 249. 
 
 B. 48, (discharge,) 265. 
 
 8. 49, (effect of order of discharge,) 249, 265. 
 
 8. 54, (status of undischarged bankrupt,) 270, 
 
 8. 59, (Court,) 209, 211. 
 
 8. 60, (London bankruptcy district,) 211. 
 
 s. 65, (London Com-t,) 140. 
 
 e. 79, (change of jurisdiction,) 211. 
 
 8. 83, (trustees,) 85. 
 
 par. 6, (trustee,) 85. 
 
 par. 7, (official name of trustee,) 176. 
 
 8. 87, (proceeds of sale and seizure,) 201. 
 
 88. 91, 92, (voluntary settlements and fraudu- 
 lent preferences,) 199, 262, 
 263. 
 
 ss. 94, 95, (protection of certain transac- 
 tions,) 260. 
 
 s. 103, (joint creditor,) 247. 
 
 8. 104, (joint and separate dividends,) 494. 
 
 s. 105, (suits by trustee and bankrupt's part- 
 ner,) 485. 
 
 8. 112, (banki'upt contractor, ) 485. 
 
 8. 117, (removal of bankrupt from trustee- 
 ship,) 465. 
 
 s. 118, (debts prior to Aug. 1861,) 292. 
 
 8. 120, (privilege of parliament,) 200. 
 
 8. 125, (liquidation by arrangement,) 192, 
 194, 209. 
 
 8. 126, (composition with creditors,) 188, 192, 
 194. 
 
 s. 128, (commissioners.) 211. 
 
 s. 130, (County District Courts,) 211. 
 
 sched. 1, (description of traders,) 199. 
 c. 83, (insolvent debtors and bankruptcy repeal,) 
 116, 151, 106, 175, 179, 180, 182, 183, 
 197, 205, 292, 293, 436. 
 c. 114, (railways abandonment,) 341. 
 
 33 Vict. c. 14, (naturalization,) 57, 58, 89. 
 33 & 34 Vict. c. 19, (railways,) 341. 
 
 c. 20, (mortgage debentures,) 364. 
 
 c. 23, (felony,) GO. 
 
 c. 28, (attornies and solicitors,) 143, 144. 
 
 c. 35, (apportionment,) 428, 430, 431. 
 
 c. 57, (gun licence,) 26.
 
 716 INDEX. 
 
 Statutes cited — • 
 
 33 & 34 Vict. c. 69, (statute law revision,) 329, 330, 331, 334, 340, 
 
 G3G. 
 c. 70, (gas and water facilities,) 341. 
 c. 71, (national debt,) 193, 328, 329, 330, 331, 334, 
 
 340, 364, 636, 637. 
 c. 78, (tramways,) 342. 
 
 c. 93, (married women's property,) 570, 572, 588, 
 592, 618. 
 8. 1, (earnings,) 588. 
 s. 2, (deposits in savings banks,) 589. 
 s. 3, (property in the funds,) 589. 
 s. 4, (property in joint stock company,) 590. 
 s. 5, (property in a society,) 590, 591. 
 s. 7, (personal property coming to married 
 
 woman,) 589. 
 8. 8, (freehold coming to married woman,) 
 
 589. 
 s. 10, (insurance of husband for benefit of 
 
 wife,) 298, 299, 300, 591. 
 s. 11, (maintenance of action,) 591. 
 s. 12, (wife's contracts before man-iage,) 592. 
 s. 13, (maintenance of husband,) 591. 
 s. 14, (maintenance of children,) 449, 592. 
 c. 97, (stamp duties,) 46, 52, 95, 119, 135, 150, 162, 
 
 297, 302, 323, 332, 370, 463, 475, 476. 
 c. 99, (Inland Revenue Acts repeal,) 46, 52, 95, 370, 
 
 409. 
 c. 102, (oath of allegiance on natiiralizatiou,) 57. 
 c. 104, (Joint Stock Companies Arrangement,) 361. 
 
 34 Vict. c. 4, (stamps.) 332. 
 
 c. 27, (trust funds investment,) 453. 
 
 34 & 35 Vict. c. 31, (Trades Union,) 140, 369. 
 
 c. 41, (G-asworks Clauses Act Amendment,) 341. 
 c. 43, (ecclesiastical dilapidations,) 104, 105, 100, 
 
 166. 
 c. 58, (life assurance companies,) 364. 
 c. 74, (bills of exchange and promissoiy notes,) 
 
 134. 
 c. 78, (railway regulation,) 341. 
 c. 80, (industrial societies,) 368. 
 c. 110, (Merchant Shipping Acts Amendment,) 36, 
 
 88. 
 
 35 & 36 Vict. c. 39, (natiu-alization,) 57, 58. 
 
 c. 41, (life assurance companies,) 364. 
 c. 44, (Court of Chancery Funds,) 338, 452, 468, 
 . 538.
 
 INDEX. 717 
 
 Statutes cited — 
 
 35 & 3G Vict. c. 73, (Merchant Shijiping Acts Amendment,) 36, 
 
 c. 93, (pawnbrokers,) 33, 625. 
 
 c. 96, (ecclesiastical dilapidations,) 104. 
 
 36 Vict. c. 12, (custody of infants,) 614, 615. 
 
 c. 31, (Matrimonial Causes Amendment Act,) 615. 
 c. 32, (East India Stock,) 452. 
 
 36 & 37 Vict. c. 48, (railway and canal traffic,) 341. 
 
 c. 52, (intestates' widows and children,) 553. 
 c. 66, (Supreme Court of Judicature,) 6, 99, 635. 
 8. 3, (union of existing Courts,) 99, 146, 147, 
 
 211, 318. 
 8. 4, (original and appellate jurisdiction,) 99, 
 
 147. 
 ss. 11, 12, (judges,) 553. 
 s. 16, (jurisdiction,) 95, 147, 318, 426, 553, 
 
 555, 616. 
 8. 17, (jurisdiction,) 333. 
 s. 18, (Court of Appeal,) 147. 
 s. 24, (law and equity to be concurrently ad- 
 ministered,) 163. 
 sub-s. 5, (no cause to be restrained by 
 prohibition or injunction,) 162, 532. 
 8. 25, sub-s. 2, (express trust,) 635. 
 
 8ub-s. 6, (assignment of debts and 
 choses in action,) 6, 172, 298, 303, 
 637. 
 8ub-8. 10, (custody of infants,) 615. 
 8ub-8. 11, (cases of conflict not enimie- 
 rated,) 426. 
 s. 26, (abolition of terms,) 308. 
 8. 31, (Probate, Divorce and Admiralty Divi- 
 sion,) 99, 553. 
 8. 32, (divisions,) 99. 
 
 8. 34, (assignment of certain business to par- 
 ticular divisions,) 95, 99, 100, 318, 
 332, 553, 616. 
 8. 57, (trials before referees,) 306. 
 8. 58, (powers of referees,) 307. 
 8. 59, (powers of Court with respect to pro- 
 ceedings before referees,) 307. 
 8. 77, (officers, &c.,) 108. 
 8. 83, (official referees,) 306. 
 s. 87, (solicitors and attorneys,) 144.
 
 718 INDEX. 
 
 Statutes cited — 
 
 36 & 37 Vict. c. 7G, (railway regulations,) 341. 
 
 c. 85, (Merchant Shipping Acts Amendment,) 36, 88. 
 c. 89, (Gas and Waterworks Facilities Act Amend- 
 ment,) 341. 
 c. 91, (Statute Law Revision,) 128. 
 
 37 Vict. c. 3, (East India stock,) 452. 
 
 37 & 38 Vict. c. 37, (powers,) 439. 
 
 c. 40, (railways,) 341. 
 
 c. 42, (building societies,) 370, 371, 372. 
 
 c. 50, (Married Women's Property Act Amend- 
 ment,) 592, 593. 
 
 0. 57, (Real Property Limitation Act, 1874,) 630, 
 635. 
 
 0. 62, (infant's contracts,) 117, 124, 142, 200. 
 
 0. 76, (expiring laws continuance,) 341. 
 
 0. 78, s. 2, sub-s. 5, (vendors and purchasers,) 11. 
 
 c. 83, (Supreme Court of Judicature Act, 1873, 
 suspension,) 6, 302, 318, 426, 616. 
 
 38 Vict. c. 9, (building societies,) 370, 371. 
 
 c. 12, (international copyright, ) 408. 
 
 38 & 39 Vict. c. 27, (intestates' widows and children,) 553, 
 c. 31, (railway companies,) 341. 
 0. 50, (county courts,) 147. 
 
 c. 60, (friendly societies,) 365, 366, 367, 368, 372. 
 c. 66, (statute law revision,) 372. 
 c. 77, (Supreme Court of Judicature Act, 1875,) 
 6, 31, 99, 173, 282, 335, 338, 363, 426. 
 s. 7, (jurisdiction as to lunatics,) 333. 
 s. 9, (London Bankruptcy Court,) 147, 159, 
 
 211. 
 s. 10, (amendment of rules of law,) 148, 153, 
 
 363, 517, lix. 
 s. 11, (divisions of High Court,) 100. 
 s. 17, (Rules of Court,) 4, 98, 309. 
 s. 21, (procedure,) 163. 
 c. 86, (conspiracy and protection of property,) 140. 
 c. 88, (unseaworthy ships,) 36. 
 c. 91, (register of trade marks,) 412, 413, 415, 416, 
 
 417. 
 c. 92, (agricultural holdings,) 16, 17. 
 
 BS. 53 — 56, (fixtiu-es ; contract; See.,) 16, 17. 
 8. 58, (non-agriciiltural and small holdings,) 
 17.
 
 INDTX. 719 
 
 Statutes cited — 
 
 39 Yict. c. G, (stamping sea policies,) 302. 
 
 39 & 40 Vict. c. 18, (treasury solicitor,) oGl. 
 
 c, 22, (trade unious,) 140, 369. 
 
 c. 29, (wild fowl,) 24. 
 
 c. 32, (friendly societies,) 365, 368. 
 
 c. 33, (trademarks registration,) 412, 415. 
 
 c. 45, (industrial and provident societies,) 3G8. 
 
 c. 52, (savings banks rules,) 3G8. 
 
 c. 59, (appellate jurisdiction,) 98, 147. 
 
 c. 80, (merchant shipping,) 3G, 88. 
 
 40 Vict. c. 9, (Supreme Court of Judicature,) G, 99. 
 
 40 & 41 Vict. c. 26, (companies,) 349, 351, 355. 
 
 s. 6, (certified copies as evidence,) 357. 
 c. 33, (contingent remainders,) 434. 
 c. 37, (trademarks registration,) 415. 
 c. 39, (factors,) 623, 626. 
 
 s. 5, (constructive possession,) 53, 55. 
 c. 51, (East India stock,) 452, 590. 
 c. 63, (building societies,) 370, 371. 
 
 41 Vict. c. 13, 8. 1, (acceptances,) 12G. 
 
 c. 15, s. 26, (contract notes,) 332. 
 c. 19, s. 3, (divorce,) 620. 
 
 41 & 42 Vict. c. 31, (bills of sale,) 63, 64, 65—74, 75. 
 
 c. 38, (innkeepers,) 35. 
 
 c. 54, (Debtors Act, 1878,) 155. 
 
 42 Vict. 0. 9, (friendly societies,) 365. 
 
 42 & 43 Vict. c. 43, (East India stock,) 452, 590. 
 
 0. 59, (outlawTy,) 59, 204. 
 
 c. 76, (companies,) 349, 351, 352. 
 
 c. 78, (Judicature Act Amendment,) 6, 108, 152, 
 
 43 Vict. c. 14, (inland revenue,) 521, 536, 539, 556. 
 
 c. 19, (companies,) 349, 351, 355. 
 
 43 & 44 Vict. c. 18, (merchant shipping amendment,) 88, 89. 
 
 c. 22, (merchant shipping,) 36. 
 c. 36, (savings banks rules,) 368. 
 c. 47, (ground game,) 24—27. 
 
 44 Vict. c. 12, (Customs and Inland Revenue, 1881,) 512, 521, 523, 
 
 527, 536, 537, 556, 561, Lxii, Ixiii. 
 44 & 45 Vict. c. 41, (Conveyancing and Law of Property, 1881,) 
 461. 
 s. 1, (commencement,) 462. 
 s. 31, (trustees and executors,) 459, 460.
 
 720 INDEX. 
 
 Statutes cited — 
 
 44 & 45 Vict. c. 41, s. 32, (retirement of trustee,) 461. 
 
 s. 33, (powers of new trustees,) 464. 
 8. 34, (vesting trust property in new trus- 
 tees,) 462. 
 s. 36, (trustees' receipts,) 457, 458. 
 8. 37, (power for executors to compound,) 530, 
 
 553. 
 8. 38, (powers to executors or trustees,) 460. 
 s. 43, (maintenance of infants,) 447. 
 s. 50, (conveyance to seK,) 641. 
 s. 59, (covenants to extend to heirs,) 159. 
 8. 60, (effect of joint covenant,) 482. 
 s. 61, (advance on joint account,) 484. 
 s. 71, (repeals,) 447, 454, 457, 458. 
 c. 44, (Solicitors' Remuneration, 1881,) 144. 
 0. 57, s. 51, (soldier's will,) 526. 
 c. 60, (newspaper Hbel,) 409. 
 c. 68, (Supreme Court of Judicatui-e,) 6, 98. 
 45 & 46 Vict. c. 35, (fnendly societies,) 365. 
 
 c. 38, (settled land,) 476, 477, 478. 
 
 c. 39, (Conveyancing, 1882,) 74. 
 
 0. 40, (copyright — musical compositions,) 400. 
 
 c. 43, (Bills of Sale, 1882,) 64, 74. 
 
 ss. 1 — 2, (title and commencement,) 63. 
 s. 3, (construction,) 63, 75. 
 8. 4, (schedule,) 75. 
 s. 5, (after-acquired property,) 75. 
 s. 6, (exceptions,) 76. 
 s. 7, (void biU,) 76. 
 
 8. 8, (attestation and registration,) 77. 
 8. 9, (form of bill,) 77. 
 8. 10, (attestation,) 78. 
 s. 11, (local registration,) 78. 
 8. 12, (bill under 30^. void,) 79. 
 8. 13, (chattels not to be removed,) 79. 
 8. 14, (poor rates, &c.,) 80. 
 * s. 15, (repeal of part of Act of 1878,) 63, 80. 
 8. 16, (inspection,) 79, 80. 
 8. ?7, (debentui'es,) 81. 
 c. 51, (Government Annuities, 1882,) 368, 369. 
 0. 61, (Bills of Exchange, 1882,) 131, 134. 
 8. 2, (interpretation,) 129. 
 s. 3, (definition,) 125. 
 s. 5, (parties,) 125. 
 s. 8, (bin payable to bearer,) 130.
 
 INDKX, 721 
 
 Statutes citcJ — 
 
 45 & 46 Vict. c. Gl, .s. 10, (payaLle on demand,) 134. 
 
 8. 16, (stiimlations by drawer,) 131. 
 
 s. 17, (acceptance,) 12-5. 
 
 8. 29, (holder in due course,) 126, 134. 
 
 8. 30, (value and good faith,) 125, 134. 
 
 8. 31, (negotiation,) 120. 
 
 8. 32, (indorsement,) 129. 
 
 8. 34, (indorsement in blank), 129, 130. 
 
 s. 38, (rights of holder,) 129. 
 
 8. 45, (presentment,) 131. 
 
 8. 48, (notice of dishonour,) 132. 
 
 8. 49, (rules as to notice of dishonour,) 132. 
 
 8. 50, (non-notice and delay,) 132. 
 
 8. 51, (protest of bill,) 132, 133. 
 
 8. 54, (liability of acceptor,) 131. 
 
 s. 55, (liability of drawer,) 131. 
 
 8. 57, (damages,) 131. 
 
 8. 59, (payment in due coiu-se,) 130. 
 
 8. 60, (forged indorsement,) 130. 
 
 8. 71, (sets,) 126. 
 
 8. 73, (cheques,) 130. 
 
 8. 83, (promissory note,) 126. 
 
 8. 87, (presentment,) 132. 
 
 8. 88, (HabLIity of maker,) 131. 
 
 s. 89, (notes,) 125, 129, 130, 131, 132, 133, 
 
 134. 
 s. 91, (signature,) 125, 126, 129. 
 8. 94, (protest,) 133. 
 8. 96, (repeal,) 126, 127, 128. 
 8. 97, (savings,) 135. 
 c. 75, (Married "Women's Property, 1882,) 59, 470, 
 558, 569, 570, 594, 611, 613, 618. 
 8. 1, (capacity to hold property,) 595. 
 
 sub-s. 1, (capacity to hold property,) 
 437, 514, 568. 
 
 sub-s. 2, (married ^-omen's contracts,) 
 299, 514, 600. 
 
 sub-ss, 3, 4, (contracts,) 600. 
 
 sub-s. 5, (bankruptcy,) 199, 603. 
 8. 2, {femcsoh;) 514, 568, 595. 
 8. 3, (loans to husband,) 605. 
 8. 4, (general power,) 603. 
 8. 5, (after-acquired property,) 514, 595. 
 s. 6, (stock, &c.,) 597, 602, 605, 606. 
 8. 7, (stock transferred to married woman,) 
 508, 602, 605, 606. 
 
 w.r.p. '3 A
 
 722 INDEX. 
 
 Statutes cited — 
 
 45 & 46 Vict. c. 75, s. 8, (investmeuta in joiat names,) 598, 602, 
 605, 606. 
 s. 9, (stock standing in joint names,) 599, 602, 
 
 605, 606. 
 8. 10, (fraudulent investments,) 605. 
 8. 11, (policy of assurance,) 603. 
 s. 12, (protection of separate property,) 600, 
 
 606. 
 s. 13, (ante-nuptial debts,) 601. 
 s. 14, (ante-nuptial debts,) 594, 603. 
 s. 15, (suits for ante-nuptial debts,) 604. 
 8. 16, (wife liable to criminal j)roceeding8,) 
 
 606, 
 s. 17, (questions as to property,) 606. 
 8. 18, (executrix,) 614, 602. 
 8. 19, (saving of existing settlements,) 473, 
 
 596. 
 8. 20, (maintenance of husband,) 603. 
 s. 21, (maintenance of children,) 449, 603. 
 8. 22, (repeal,), 299, 588, 594. 
 8. 23, (legal representative,) 602. 
 s. 24, (interpretation of terms,) 514, 595, 
 
 602. 
 s. 25, (commencement,) 569, 594. 
 46 & 47 Vict. c. 28, (Companies Act, 1883,) 351, 363, 364. 
 c. 29, (Supreme Coiu't funds,) 6, 538, Ixi. 
 c. 30, (companies, colonial registers, ) 351, 364. 
 c. 40, (expiring laws, ) 128. 
 0. 47, (provident nominations and small intestacies,) 
 
 365, 368, 369. 
 c. 49, (statute lawre\'ision,) 4, 84, 98, 107, 108, 150, 
 
 173, 531. 
 c. 52, (Bankruptcy Act, 1883,) 62, 174, 183, 194, 
 197, 201, 203, 213, 217, 226, 260, 265, 
 350. 
 8. 2, (extent of Act,) 197. 
 s. 3, (commencement,) 148, 193. 
 s. 4, (acts of banki-uptcy,) 82, 166, 180, 198, 
 
 200, 202, 252. 
 s. 5, (receiving order,) 116, 156, 194, 210, 
 
 212. 
 8. 6, (creditor's petition,) 213, Ix. 
 s. 7, (proceedings on creditor's petition,) 212, 
 
 214, 215. 
 8. 8, (debtor's petition,) 212.
 
 INDEX. 723 
 
 Statutes cited — 
 
 •IG & 47 Vict. 0. 52, s. 9, (receiving order,) 116, 15G,21G, 217, 250. 
 s. 10, (receiver,) 217. 
 s. 12, (special manager,) 217. 
 s. 15, (meetings,) 194, 212, 218. 
 s. 16, (debtor's statement,) 212, 218. 
 s. 17, (public examination,) 212, 218, 219. 
 8. 18, (composition,) 194, 220, 221, 222, 224, 
 
 250. 
 s. 19, (effect of composition,) 222, 250. 
 s. 20, (adjudication,) 85, 176, 212, 213, 
 
 224. 
 s. 21, (trustee,) 85, 17G, 225, 229, 230, 231. 
 8. 22, (committee of inspection,) 225, 231. 
 8. 23, (power to accept composition,) 223, 
 
 224. 
 8. 24, (discovery of property,) 226, 227. 
 s. 25, (arrest of debtor,) 227, 228. 
 8. 27, (discovery of property,) 228, 229. 
 8. 28, (discharge of banki-upt,) 265, 266, 267, 
 
 268. 
 8. 29, (fraudulent settlements,) 268. 
 8. 30, (order of discharge,) 250, 269, 487, Ix. 
 8. 32, (disqualifications of bankrupt,) 271, 
 
 272. 
 8. 33, (vacating seat in House of Commons,) 
 
 272. 
 8. 34, (vacating offices,) 273. 
 s. 35, (annulling adjudication,) 272, 273. 
 8. 36, (payment of debts in- full,) 273. 
 s. 37, (debts j)rovable,) 253, 254. 
 ss. 37 — 65, (administration of property,) 222, 
 
 283. 
 s. 38, (mutual credit and set off,) 254. 
 8. 40, (priority of debts,) 148, 153, 249, 250, 
 
 251, 493, 501, 529. 
 8. 42, (distraint for rent,) 250, 255, 
 8. 43, (relation back of trustee's title,) 260. 
 s. 44, (description of property divisible,) 63, 
 
 85, 86, 87, 176, 199, 232, 270, 437, 
 
 638. 
 s. 45, (restriction of right8 of creditor imder 
 
 execution,) 174, 260, 
 8, 46, (duties of sheriff,) 261. 
 8. 47, (avoidance of voluntary settlements,) 
 
 261, 262,473. 
 8.48, (avoidance of preferences,) 263. 
 
 3 A 2
 
 724 INDEX. 
 
 Stattttes cited — 
 
 46 & 47 Vict. c. 52, s. 49, (protection of bond fide transactions 
 without notice,) 263. 
 
 s. 50, (possessionof property by trustee,) 176, 
 237, 238, 493. 
 
 8. 52, (sequestration of benefice,) 238. 
 
 s. 53, (appropriation of pay or salary,) 239. 
 
 8. 54, (vesting and transfer of property,) 85, 
 87, 176, 225, 234, 270, 437. 
 
 8. 55, (disclaimer of onerous propei-ty,) 234, 
 235, 236, 237. 
 
 8. 56, (powers of tmstee,) 225, 239, 437. 
 
 s. 57, (powers of trustee with permission of 
 committee,) 225, 240, 241. 
 
 8. 58, (declaration of dividends,) 246, 247. 
 
 8. 59, (joint and separate dividends,) 247, 
 494. 
 
 8. 60, (creditors residing at a distance,) 247. 
 
 8. 61, (creditor not proving debt before de- 
 claration of dividend,) 248. 
 
 s. 62, (final dividend,) 248. 
 
 8. 63, (no action for dividend,) 249. 
 
 8. 64, (management of property by bank- 
 rupt,) 242. 
 
 s. 65, (right of bankrupt to sui^lus,) 249. 
 , s. 66, (official receivers,) 217. 
 
 s. 72, (remuneration of trustee,) 231, 232. 
 
 ss. 72—91, (trustee,) 222. 
 
 8. 74, (payment of money into Bank of 
 England,) 244, 245. 
 
 ss. 74—81, (trustee,) 225. 
 
 8. 75, (trustee not to pay into private ac- 
 count), 245. 
 
 8. 78, (audit of trustee's accounts,) 246. 
 
 8. 80, (books to be kept by trustee,) 246. 
 
 8. 81, (annual statement,) 246. 
 
 s. 83, (official name of trustee,) 176. 
 
 s. 84, (power to appoint joint trustees,) 231. 
 
 8. 86, (removal of trustee,) 231. 
 
 s. 89, (control over trustee,) 225, 242, 243. 
 
 8. 90, (appeal against trustee,) 243. 
 
 8. 91, (control of Board of Trade over trus- 
 tees,) 225, 243. 
 
 8. 92, (Courts having jurisdiction,) 209, 211. 
 
 ss. 92 — 94, (Coiu'ts having jurisdiction,) 193. 
 
 8. 93, (consolidation of London,) 147, 211. 
 
 8. 94, (special judge,) 273.
 
 INDEX. 
 
 725 
 
 Statutes cited — 
 
 46 & -17 Vict. c. 52, 8. 95, (potitiou,) 215, 216. 
 
 8. 96, (Londou Bankruptcy District,) 79. 
 
 8. 98, (jurisdiction in chambers,) 274. 
 
 s. 99, (jurisdiction of registrar,) 274, 275. 
 
 8. 100, (county court,) 211. 
 
 8. 103, (judgment debtors,) 156. 
 
 8. 104, (api^cals,) 276. 
 
 8. 110, (petition against partner,) 493. 
 
 8. 113, (actions by trustee,) 485. 
 
 8. 114, (actions on joint covenants,) 485. 
 
 8. 115, (proceedings in partnership name,) 
 
 493. 
 s. 121, (small bankruptcies,) 244, 277. 
 8. 122, (administration order by county 
 
 court,) 244, 279, 280, 281, 282. 
 s. 124, (privilege of parliament,) 200. 
 s. 125, (administration of estate of person 
 dying insolvent,) 148, 153, 157, 159, 
 166, 183, 282, 283, 517, 529, 584, 
 585. 
 s. 126, (debts contracted before 1861,) 292. 
 8. 127, (poTver to make general rules,) 197. 
 8. 146, (writ of elegit not to extend to goods,) 
 
 83. 
 8. 147, (bankrupt trustee,) 465. 
 8. 149, (con.struction of Acts,) 63, 74, 79, 
 s. 150, (pro-\-i8ions to bind the crown,) 148, 
 
 249. 
 8. 152, (married women,) 200. 
 8. 163, (penal pro\asion8,) 157. 
 8. 168, (interpretation of terms,) 84, 176, 
 
 233, 437, 473. 
 s. 169, (repeal,) 84, 147, 156, 166, 176, 
 
 193. 
 8. 170, (proceedings under 32 & 33 Vict, 
 c. 71, ss. 125, 126,) 193. 
 first schedule, r. 13. .493. 
 second schedule, r. 18. .494. 
 p. 57, (Patents, Designs and Trade Marks, 1883,) 
 382, 383, 384, 643. 
 a. 3, (commcuceinent,) 382. 
 8. 4, (who entitled to apply for patent,) 392. 
 8. 5, (application and specification,) 382, 
 
 384, 385. 
 
 8. 6, (reference of application to examiner,) 
 
 385, 417.
 
 726 INDEX. 
 
 Stattttes cited — 
 
 46 & 47 Vict. c. 57, s. 7, (refusal of application, or amendment,) 
 
 285, 286. 
 8. 8, (timcfor leaving complete specification,) 
 
 385. 
 s. 9, (provisional and complete specification,) 
 
 386, 387. 
 s. 10, (advertisement of acceptance of speci- 
 fication,) 387. 
 s. 11, (opposition to grant,) 387. 
 s. 12, (sealing,) 388. 
 s. 13, (date of patent,) 388. 
 s. 14, (x^rovisional protection,) 389. 
 s. 15, (effect of acceptance of specification,) 
 
 389. 
 s. 16, (extent of patent,) 393. 
 s. 17, (term of patent,) 376. 
 s. 18, (amendment of specification,) 390, 391. 
 s. 19, (disclaimer of part of invention,) 391. 
 s, 20, (recovery of damages,) 391. 
 s. 21, (advertisement of amendment,) 391, 
 s. 22, (grant of licences,) 392. 
 s. 23, (register,) 395. 
 s. 24, (fees,) 376. 
 s. 25, (extension of term,) 378. 
 s. 26, (revocation,) 397. 
 s. 27, (patent to bind Crown,) 383. 
 ss. 28 — 31, (legal proceedings,) 397. 
 s. 33, (grant to be for one invention only,) 
 
 388. 
 s. 34, (representative of deceased inventor,) 
 
 382. 
 s. 35, (fraud on first inventor,) 389. 
 s. 36, (assignment for particular places,) 395. 
 s. 39, (exhibition,) 379. 
 
 s. 43, (foreign vessels in British waters,) 397. 
 s. 44, (assignment to Secretary for War of 
 
 certain inventions,) 396. 
 s. 45, (existing patents,) 376, 378, 382, 383, 
 
 393. 
 s. 46, (defijiitions,) 375, 378, 390. 
 s. 47, (registration of designs,) 411. 
 ss. 47 — 49 (registration of designs,) 410. 
 s. 50, (copyright on registration,) 410, 411. 
 s. 51, (marking registered designsj) 411. 
 s. 54, (cesser of copyright,) 411. 
 s. 55, (register of designs,) 411, 412.
 
 INDEX. 
 
 727 
 
 Statotes cited — 
 
 46 & 47 "Vict. c. 67, s. 58, (penalty on piracy,) 412. 
 s. 59, (action for damages,) 412. 
 s. 61, (definition of proprietor,) 410. 
 s. 62, (application for registration of trade 
 
 marks,) 416. 
 s. 64, (conditions of registration of trade 
 
 marks,) 417. 
 s. 65, (connexion of mark -with goods,) 416. 
 s. 66, (series of marks,) 418. 
 s. 67, (registration in any colour,) 418. 
 8. 70, (assignment and transmission,) 416, 
 s. 72, (restrictions on registration,) 418. 
 8. 73, (further restrictions on registration,) 
 
 418. 
 s. 75, (registration equivalent to public use,) 
 
 416. 
 8. 76, (right of first proprietor,) 416. 
 8. 77, (actions for infringement,) 413, 415. 
 8. 78, (register of trade marks,) 416. 
 8. 79, (removal of trade mark from register,) 
 
 418. 
 8. 81, (Sheffield marks,) 419. 
 s. 82, (patent office,) 384. 
 8. 83, (officers and clerks,) 384. 
 s. 87, (entry of assignments, &o. in register,) 
 
 396, 412, 417. 
 s. 88, (inspection of registers,) 396, 411, 416. 
 8. 103, (international arrangements,) 396, 
 
 412, 419. 
 8. 104, (colonies and India,) 396, 412, 419. 
 ss. 107—112, (Scotland, Ireland, &c.,) 397. 
 8. 113, (repeal, savings, &c.,) 376, 379, 380, 
 382, 390, 392, 393, 406, 410, 415. 
 8. 114, (former registers to be deemed con- 
 tinued,) 395, 416. 
 s. 116, (saving for prerogative,) 374, 383. 
 s. 117, (definitions,) 385, 396, 397. 
 c. 61, (Agricultural Holdings, England, 1883,).. 
 17, 18. 
 47 Vict. c. 9, (bankruptcy appeals— coimty courts,) 276. 
 
 c. 14, (Married "Women's Property Act, 1882, Amend- 
 ment,) 601, 606. 
 47 & 48 Vict. c. 18, (Settled Land, 1884,) 455, 569. 
 
 c. 61, (Supreme Court of Judicature Act, 1884,) 
 
 Ix, Ixi. 
 0. 68, (Matrimonial Causes, 1884,) 615, 620, 621. 
 c. 71, (Intestates' Estates, 1884,) 561.
 
 728 INDEX. 
 
 Statutes merchant aud .staple, 157. 
 
 Steam engine, 17. 
 
 Stock in trade, assignment of, 4 1 . 
 
 meaning of "stock," 4G3, n. [b). 
 in the funds, 7, 327—332. 
 
 is personal estate, 329. 
 jobbing, 141, 331. 
 transfer of, 330. 
 in name of trustee, 330. 
 certificates, 331. 
 
 of infants, lunatics and idiots, 332, 333. 
 interest of married woman in stocks, 597. 
 contract for sale of, 332. 
 distringas on, 334. 
 ■writ of distringas abolished, 335.- 
 affidavit and notice now to be served, 335. 
 charge of judgment on, 335. 
 transmission of, by will, 338. 
 unclaimed dividends on, 635. 
 notice to trustee on assignment of, 636. 
 Stolen goods, sale of, 623. 
 
 repayment of innocent purchaser, on restitution, 625. 
 Stop order, 639. 
 
 Stoppage in transitu, 63, 54, 54, n. {d). 
 Submission to arbitration, 304, 309, Ixi. 
 Succession Duty Act, 1853. .476, 481, 538, Ixiii. 
 Suit in equity, 163. 
 
 by executor, 631. 
 Summons, writ of, 112, 163. 
 SuPEEiOB courts of record, 146, 147. 
 Supreme Court of Judicature, 99, 318. 
 
 divisions of High Court of Justice, 99. 
 Court of Api^eal, 99. 
 Chancery Division, 99. 
 
 jurisdiction of, 99, 318, 332, 334, 532, 615. 
 Queen's Bench Division, 99. 
 sittings of the Court, 308. 
 SUEETIES, 168. 
 
 discharge of, 169, Ix. 
 SuEPLtrs of bankrupt's property, 249. 
 SuETivoESHiP amongst joint owners, 480, 483. 
 
 none in equity of joint securities, 484. 
 none amongst owners in common, 486. 
 amongst joint debtors, 487. 
 as to joint and several debtors, 488. 
 of office of execiitor, 515.
 
 INDEX. 729 
 
 T. 
 
 Tail, estate, none in personal property, 432. 
 Taxes due from banki-upt, 250. 
 Tenant without impeachment for waste, 22. 
 for years or for life, 2 1 . 
 joint, 517. 
 
 in common, 484, 485, 486. 
 bequest to, 547. 
 Tenteeden, Lord, his Act. — See Statute — 9 Geo. IV. c. 14. 
 Terms now abolished, 308. 
 Testamentary alienation, growth of right of, 505. — See Will. 
 
 expenses, priority of payment, 529. 
 Timber, 20, 21. 
 
 trees, what are, 22. 
 Tithe rentcharge, limitation of actions for arrears of, mode of re- 
 covery, 633, n. 
 Title, 622. 
 
 to money and negotiable securities, 622. 
 
 to chattels personal, 623. 
 
 to stolen goods, 623. 
 
 to horses stolen, 625. 
 
 under factors and agents, 626. 
 
 warranty of, 626, 627. 
 
 under Statutes of Limitation, 628 — 635. 
 
 to unclaimed dividends, 635. 
 
 to choscs in action by notice, 637. 
 
 through deeds, wills, &c., 640. 
 
 abstract of, 640. 
 
 covenants for, 640. 
 
 to shares, 640. 
 
 comparison of, to real and personal estate, 64 1 . 
 
 to goods bond fide acquired, 67, 624. 
 
 bondjidf purchaser protected by Factors' Act, 1877. .623. 
 
 deeds, 10, 12, 13. 
 
 solicitor's lien on, 37, 38. 
 Tombstone, 14. 
 Toet, action for, 100, 103. 
 
 death of wrong-doer, 103. 
 wife's, 572, 582, 593, 600, 601, 603—605. 
 Trade, contracts in restraint of, 138. 
 machinery, 67. 
 
 bankruptcy of partners in, 492. 
 liability of executor carrying on, 490. 
 customs of, 628.
 
 730 INDEX. 
 
 Teade Marks, 412. 
 
 register of, 415, 416. 
 
 registration equivalent to piiblic use, 416. 
 of what trade mark must consist, 417. 
 registration of series of marks, 418. 
 colour of, 418. 
 
 removal of mark from register, 418. 
 special provision as to cutlery, &c., 418. 
 international and colonial protection of, 419. 
 Teade Names, 419. 
 
 Trader, who is, within the bankrupt laws, 198. 
 Trades Union Act, 1871 . . 140, 369. 
 Transfer of stock, 330. 
 Trespass in pursuit of game, 24, 
 
 on the case, 30. 
 Trover and conversion, 30—32, 34, 56, 62. 
 
 recovery in, 56. 
 Tetjst, though voluntary, enforced in equity, 45. 
 none entered on ship's register, 90. 
 settlements by means of, 427. 
 funds. Act for better securing, 467. 
 for payment of creditors, when revocable, 473. 
 for wife's separate use, 584. 
 gift for " sole use," 585. 
 
 express trust not barred by the Statute of Limitations, 635. 
 declaration of, in settlement, 647. 
 
 trusts, in default of children, as to fund settled by husband, 
 
 651. 
 by wife, 651. 
 power to apportion blended trust funds, 654. 
 Trustee Act, 1850.. 463. 
 Trustee in bankruptcy, 85, 175, 176, 225. 
 
 appointment of, 229 — 231. 
 
 ajjpointment of joint trustees in bankruptcy, 
 
 231. 
 removal of trustee, 231. 
 remuneration of trustee, 231, 232. 
 security to be given, 229. 
 property of bankrupt, 85, 233. 
 possession of property by trustee, 237. 
 disclaimer as to onerous property, 234. 
 limitation of time for disclaimer, 235. 
 power to deal with property, 239. 
 powers of, with sanction of committee of 
 
 inspection, 240 — 242. 
 discretionary powers of, 242. 
 appeal to Court against trustee, 243.
 
 INDEX, 731 
 
 Tettsteb in bankruptcy, control of Board of Trade over, 243. 
 
 money received by, 2t3. 
 
 trustee's books of account, 245. 
 
 annual statement by, 246. 
 
 relation back of trustee's title, 2G0. 
 under a liquidation, 186. 
 Textstees, interest of, sufficient to support life insurance, 296. 
 former liability of, not investing in consols, 328. 
 transfer of stock, refusal of bank to recognize, 330. 
 of friendly society, 366. 
 
 bankruptcy of, 366. 
 new trustee, 366, 465. 
 power-to appoint new, 458, 460, 655. 
 receipt of, 456, 655, n. 
 retirement of, 460. 
 
 vesting trust property in new or continuing trustee, 461. 
 appointment of, by the Coiu't, 463. 
 vesting order, 463. 
 stamp duty on appoiutment of, 463. 
 banki'uptcy of trustee, 464, 465. 
 costs of, 465. 
 responsibilities of, 465. 
 solicitor, 465. 
 
 indemnity and reimbursement of, 467. 
 Act for relief of, 467. 
 coimty courts, jimsdiction of, 468. 
 punishment for fraudulent, 468. 
 power to apply for opinion of judge, 469. 
 of personal estate made joint owners, 481. 
 mari'ied woman as trustee, 602. 
 notice to, on assignment of chose in action, 637. 
 inquiiy of, as to prior assignments of choses in action, 638. 
 form of usual clauses in settlement as to, 655. 
 
 U. 
 
 Umpiee, 320. 
 
 Uncbetificated bankrupt, 270. 
 
 Unclaimed dividends, 635. 
 
 Unlawful contracts, 113, 136, 137. 
 
 Use, conveyance by way of, 12. 
 
 UsuEious contracts, 141. 
 
 Ustjey laws now repealed, 142.
 
 732 INDEX. 
 
 V. 
 
 Vendoe's lien, 53, 55. 
 Vested interests, 425. 
 
 the Courts lean to, 444. 
 giving, to children by settlement, 445. 
 Vesting of shares of joint owners, 481. 
 
 of bankrupt's property, 224, 234. 
 in new trustees, 463. 
 VoLtTNTAEY trust enforced, 45. 
 
 bonds and covenants, 163. 
 preference in bankruptcy, 288. 
 settlement, void as against creditors, 262, 268, 472. 
 binding on settlor, 473. 
 
 of personal estate not void as against subse- 
 quent purchasers, 475. 
 stamp duty on, Ixii. 
 
 W. 
 
 Wagees void, 141. 
 
 Wages to servants of bankrupt, 251. 
 
 Waxes, custom of, 505, 560. 
 
 Wae, instruments or munitions of, improvements in, 396. 
 
 Waeeant of attorney, 149. 
 
 to secure annuity, 150. 
 execution and attestation of, 151. 
 to be filed within twenty- one days, 152. 
 in case of bankruptcy, 290. 
 Waeeantt on sale of goods, 626. 
 
 implied, of title on sale, 627. 
 of quahty, 027. 
 Waste, tenant without impeachment of, 22. 
 
 being impleaded of, 22. 
 by incumbent, 104. 
 Widow, usually preferred in grant of administration, 552. 
 her share under the Statute of Distribution, 557. 
 when deprived of her distributive share by settlement, 565. 
 Widowhood, gift to a woman during, 565. 
 Wife, executrix, 513, 602. 
 
 covenant to settle her future property, 469, 652. 
 
 no dvity on legacy to, 538. 
 
 rights of husband and wife independent of settlement, 569. 
 
 equitable rights of, 570, n, 576, 583. 
 
 a feme covert, 571. 
 
 her chattels personal belonged to her husband, 572. 
 
 her paraphernalia, 573.
 
 INDKX. 733 
 
 Wife, her legal chosos in action, 574. 
 
 her equitable chosos in action, 574, 576. 
 
 her equity to a settlement, 576. 
 
 disposition of her reversionary interests, 581. 
 
 her ante-nuptial contracts and debts, 581, 582, 592 — 594, 601, 
 602, 603—605. 
 
 her torts, 581, 582, 593, 601, 603—605. 
 
 wife's necessaries, 582, 610, Oil. 
 
 separate estate in equity, 583. 
 
 her will of her personal estate, 583. 
 
 gifts of income for woman's separate use, 585. 
 
 restraint on her anticipation, 585. 
 
 attached to gift of corpus of property, 587. 
 
 contract by, 587, 599, 608. 
 
 general engagements binding separate estate, 587. 
 
 powers of appointment given to, 437, 588. 
 
 separation of, 012. 
 
 her alimony, 616. 
 
 settlement on divorce, 619. 
 
 protection when deserted by her husband, 617. 
 
 restitution of conjugal rights, 620. 
 
 trust as to fund settled by wife, 649, 651. 
 See also Husband ; Makried Wojian. 
 Wild fowl, 24, n. (/). 
 Will, 505. 
 
 attestation of, 506, 507. 
 
 revocation of, 509. 
 
 domicile, 509. 
 
 executor of, 512, 518. 
 
 probate of, 517, 518, 520. 
 
 stamp duties on probate, 521, 526. 
 
 ecclesiastical jurisdiction over, 518. 
 
 registration of, in Court of Probate, 519. 
 
 of wife by husband's authority, 583. 
 WmDiNG-UP Acts, 349, 360. 
 
 of "unregistered companies," 349. 
 Witnesses, examination of, by arbitrators, 310. 
 
 to a will, 506, 507. 
 Weit of mandamus, 97. 
 
 of injunction, 97. 
 
 oi fieri facias, 81. 
 
 of levari facias, 83. 
 
 of elegit, 81, 83. 
 
 of summons, 112, 103. 
 
 oi capias ad satisfaciendum, 154, 205. 
 
 of distringas abolished, 335.
 
 734 INDEX. 
 
 Wbitino, what contracts to be in, iT, 48, n., 49, 51, 52, 118, 119, 
 121, 122, 123, 124, 125, 126, 402. 
 debts now assignable by, 6. 
 
 Yeae, agreement not to be performed within a, 52, 120. 
 
 of executor, 535. 
 
 of administrator, 554. 
 YOEK, custom of province of, 505, 519, 560. 
 ToxTNGEE children, 441.
 
 LONDON : 
 
 C. F. EOWOETH, PEINTEE, 5 — 11, GREAT NEW STEEET, FETTEE LANE — E.G. 
 
 LATE BEEAM'S fiUILDINGS, CHANCEEY LANE. 
 
 CD 
 CO 
 CO 
 CO 
 
 cri
 
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 JAN 2 9 1952
 
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